Access of the Poor to Justice

Access of the Poor to Justice
in an Elite-Dominated Constitutional
Government and Society*

by Justice Romeo T. Capulong

In his speech on June 30, 2008 on the topic of our forum this morning, our keynote speaker, Chief Justice Reynato S. Puno, noted that “the poor complain that the playing field in our justice system is tilted against them.” He attributed this complaint to a variety of reasons, one of which is that judges “decide cases without considering their social context.” Allow me to add my piece to this keen observation by saying affirmatively that this complaint is true and unquestionably supported by empirical data and experience. This is particularly true in the struggle of poor Filipinos against economic, social and cultural injustice.

My topic in the program is to define the framework of this struggle from the perspective and aspirations of the oppressed and exploited poor under the prevailing economic, social and cultural order or, more appropriately disorder, to borrow the terminology of a perceptive political analyst. At the outset, I wish to make it clear, that just like the other participants, I am keenly aware of the limitations of the rule-making power of the Supreme Court to widen the access of the poor to our justice system. But at the same time, I think we can now agree that our discussions and proposals cannot be confined to procedural issues and remedies. And to achieve what I consider as our minimum objective of identifying the barriers to the poor’s access to justice and their causes and remedies, we can set aside the fine distinction and lump together both procedural and substantive matters. In fact, our thesis should be to make all the three branches of government under the tripartite system work together to address this fundamental problem of inadequate and, in most cases, lack of access of the poor to redress injustices committed against them by the rich and the powerful.

We all know that we live and suffer in a stratified society and under a government that is dominated by a tiny elite. This tiny elite has a monopoly of political power and economic resources which they use and often abuse to tilt the scales of justice in their favor. We have a long history of anti-colonial and neo-colonial struggle against foreign domination, particularly against the United States, transnational corporations and multi-lateral institutions whose means and machinery of control are increasingly becoming more sophisticated and effective.

We are endowed with rich natural resources but millions of Filipinos are mired in deep and widespread poverty under a system characterized by a backward, agrarian and pre-industrial economy that serves the narrow interests of foreign and domestic elites. We have not been allowed to develop as a people and to chart our own future. An overwhelming majority of our people continue to be disenfranchised and victimized by human rights abuses, oppression and exploitation. Our elections are a farce in which the people are given the illusion that they are participating in a meaningful process. In reality, they are not being offered real choices in terms of adopting a pro-poor and pro-Filipino program of government and choosing leaders who will represent their genuine interests. Our electorate are being deceived, taught and induced to sell their votes, cheated, intimidated or sometimes killed. We have been electing to office different factions of the Filipino elite alternating in power in a vicious cycle of self-interest, mutual accommodation, constantly shifting personal and political loyalties and dynasty-building. The result is a government that is perennially unable to provide the most basic needs of the poor in health care, education, shelter and livelihood.

I venture the view that this, in brief, is the social context suggested by Chief Justice Puno in understanding the problems of the judiciary and the variety of reasons why justice and equity for the poor in their true meaning remain “an ideal that is far from the reality of their everyday lives.” I respectfully submit that the bench and the bar as well as policy-makers should have as their guiding and over-riding principle the foregoing social context in the following cases and conflicts involving the poor:
1. The peasants in their struggle for genuine land reform and their legal battle against land-grabbing and eviction in the name of so-called development by land-grabbers masquerading as property developers;

2. The workers in their struggle for decent wages and working conditions and in their struggle to organize trade unions and associations that empower them and represent their genuine interests;

3. The urban poor and informal settlers, oftentimes disparagingly called “squatters,” in the defense of their right against summary eviction and for adequate relocation site, housing and livelihood;

4. The migrant workers in the defense of their human rights under national and international law in the host country and in their struggle against the apathy and callousness of their own government to their problems as migrant workers and to the problems that beset their families in the homeland;

5. The small fisherfolk in their struggle to defend their fishing grounds against the intrusions of local and foreign fishing magnates;

6. The indigenous people in the defense of their ancestral domain against land-grabbers and local and foreign mining companies;

7. Political victims of violations of human, civil and political rights such as extra-judicial killings, involuntary disappearances, torture, illegal arrests and arbitrary detention committed by the state through its police, military and paramilitary forces; and

8. The public in general on legal issues like environmental protection and consumer rights.

There is almost unanimity on the ills that afflict our judicial system and the problems of the marginalized poor in accessing this system to enforce or defend their economic, social and cultural rights. I fully agree with the Chief Justice that the following are seemingly insurmountable problems waiting for immediate short-term solutions: “lack of knowledge of their rights under the law, lack of resources to fight for their rights, exorbitant cost of justice, lack or ineffective legal representation, delays in the dispensation of justice, complex and incomprehensible legal procedure, anti-poor laws, judges who decide cases without considering their social context, etc.” With due respect, may I add to this list three major weaknesses and vulnerabilities that pervade and continue to deteriorate in our courts and among the judges today. And these are: (1) bribery and corruption; (2) political and other forms of undue pressure; and (3) our sub-culture of pakiki-sama and utang na loob.

To be candid, the victims of these judicial afflictions are generally the defenseless poor – those who belong to the marginalized sectors I just mentioned who are forced to go to court either to defend or to assert their economic, social and cultural rights against formidable adversaries who have unlimited resources and the full support of the government, including the military, police, local officials and private armies.

I believe that there are two ways of addressing the multi-level barriers that impede the poor’s access to justice. One is to consider simple measures and remedies that are doable in the short term. Judging from the inputs of the first forum and this forum, the concrete proposals have been comprehensive because they are anchored on actual experience. The other way of addressing these barriers is to examine scientifically their roots and be part of the wider national struggle to dismantle these roots that afflict not only the justice system but more importantly, the whole Philippine society. I think no one will disagree with the proposition that our problems in the judiciary, in the legislature, in the executive branch, in the rest of our institutions and processes are inextricably intertwined and will defy lasting solutions unless we dismantle the prevailing unjust social and economic order and establish a truly free, democratic and sovereign nation. And this is the reason why, as a concluding part of my brief presentation, I only have one concrete proposal which is not only both procedural and substantive, but also fundamental and structural. With your permission, Honorable Chief Justice, colleagues and friends, without sounding sarcastic or skeptical because I am coming to you with clean hands and absolute sincerity allow me to propose in this forum the adoption and promulgation not only by the Supreme Court but by our people of what I call the writ of Andres Bonifacio.

Thank you.
August 28, 2008.

*Presented at the forum Kabuhayan, Karapatan, Katarungan sponsored by Bagong Alyansang Makabayan (BAYAN) and the National Union of Peoples’ Lawyers, Malcolm Hall, University of the Philippines, Diliman, Quezon City. The speech was submitted and published in Business World 29-30 August 2008 in lieu of Carol Araullo"s weekly column, Streetwise

** Justice R. T. Capulong is the Co-chairperson of NUPL and President of the Public interest Law Center

Peace talks charade

Perhaps the best thing to come out of the GRP-MILF* Memorandum of Agreement on Ancestral Domain (MoA) fiasco -- aside from the recognition on paper of the Moro people's right to self-determination -- is that the chain of events has forced the US-backed Arroyo regime to drop the charade that it is negotiating with the MILF in good faith, towards a political settlement that truly addresses the roots of the armed conflict, most especially the central issue of ancestral domain.

The prospective signing of the MoA by the GRP and MILF negotiating panels has triggered an unfounded and near-hysterical outcry against the supposed imminent dismemberment of the Philippine Republic; the issuance of a Supreme Court Temporary Restraining Order stopping the inking of the MoA; and has ignited the fresh outbreak of hostilities evoking even further widespread and more intense Moro bashing and calls from both the Arroyo camp and the leaders of the anti-Arroyo Opposition for another all-out war to finally annihilate the MILF.

The series of announcements by Malacañang -- first, that the Arroyo regime had all along intended to push for Charter change that would create a Bangsamoro federal state under some kind of Philippine federal republic purportedly to bring peace to Mindanao; then the intent to revisit and renegotiate the MoA in order to placate those who charge the MoA to be “unconstitutional” and “treasonous”, thereby rendering the issue before the Supreme Court moot and academic; and now the shift of focus of peace negotiations from armed groups to the unarmed communities supposedly in response to MILF armed provocations in North Cotobato and the Lanao provinces -- betrays a devious stratagem.

The US-Arroyo game plan aims merely to ensnare the MILF into a prolonged ceasefire; confuse as well as raise the hopes of the Moro people that the GRP, with US prodding, will grant their aspirations for a Bangsamoro homeland and self-rule; and coopt the MILF leadership or force them into a negotiated capitulation. This stratagem has long been used in the GRP-NDFP peace negotiations causing the current impasse that is tantamount to its breakdown under the Arroyo administration.

It is becoming increasingly clear that the Arroyo regime never intended to sign the MoA. That is why it did not muster the political support of its canine loyalists among the local government officials in affected provinces, whether Christian or Muslim, and kept the terms of the MoA and its intentions, even its pretended intentions, top secret.

All the better to whip up controversy due to the dearth of information about what was really happening in the GRP-MILF peace negotiations, public ignorance and lack of sympathy for the grievances of the Bangsamoro together with the deeply-entrenched and widespread anti-Moro prejudice. And all the better to have a TRO, unanimously issued by the Supreme Court, that conveniently provided the legal mechanism to stop the signing of the MoA that was to be witnessed by high-ranking officials of foreign governments, not least of which from the formal mediator, Malaysia, and the informal power-broker, the US.

Armed hostilities between the military and armed units of the MILF have broken out once more and have caused civilian deaths and displacement, damage to property and casualties on both sides. They are the direct result of the treachery of the Arroyo regime vis a vis the MoA and its cynical use of the peace negotiations to “neutralize” the MILF politically and militarily so that it can train its guns solely on the communist led-New People’s Army.

The lack of unqualified support for the MoA by even from those who uphold the Bangsamoro right to self-determination is traceable to the outrageous opportunism of Mrs. Arroyo in using the agreement to justify changing the Philippine Charter and thereby opening the door wide open for its self-serving agenda of extending its term limits and remaining in power beyond 2010.

Government's formal manifestation in the Supreme Court that it will revisit and renegotiate the MoA has all but killed whatever prospect of progress, if not breakthrough there was in the negotiations, real or illusory, and pulled this back to a situation much worse than before the MoA initialing.

President Gloria Macapagal-Arroyo’s most recent get-tough and unmistakably hawkish pronouncement is that her government would no longer negotiate with armed groups until they give up their arms but would instead “talk directly to communities”. She said that "engagements with all armed groups shall be about disarmament, demobilization, and rehabilitation”.

Unless the Arroyo regime is at war with “communities” and not armed political forces such as the NPA and the MILF, her statement could easily be dismissed as empty, if not ludicrous. Unfortunately, it could be a prelude to a major breakdown in the GRP-MILF peace negotiations and constitute the signal fire for further intensification of military offensives against the MILF and armed assaults against the civilian population.

Mrs. Arroyo’s obsession with remaining in power coupled with the dominant fascist mindset in her Cabinet has completely blinded the Arroyo regime to the lessons of history. Military solutions have never succeeded in extinguishing the struggles, much more the aspirations, of an aroused people, be it the Bangsamoro or the Filipino people.#

**Government of the Republic of the Philippines-Moro Islamic Liberation Front

Ka Tanny’s legacy shall live

The first and last time I spoke with Senator Lorenzo “Ka Tanny” M. Tañada was in 1980 in Bontoc, Mountain Province. UP Professor Randy David introduced me to him. He was with a group going around the country to get the pulse of the people as the anti-dictatorship movement in the cities started to gain ground. I was in awe of the Grand Old Man of the Opposition but he listened intently as I told him about my experiences as a rural health doctor among the indigenous peoples of the Cordillera.

After that I only saw him from a distance as when he, his son Bobby Tañada, Director Behn Cervantes and other prominent figures were being hosed down and tear-gassed at the Welcome Rotunda; I could only watch helplessly from the upper floors of the hospital across that historic site of innumerable rally dispersals. I was then working more clandestinely and could not join much less be at the forefront of such protest actions.

Ka Tanny was elected the founding chairperson of the Bagong Alyansang Makabayan (BAYAN) in 1985 while I joined the alliance only some ten years later. I never had the privilege of working closely with him unlike the young activist leaders of the time such as Bayan’s martyred Secretary General Lean Alejandro. So when Congressman Erin Tañada asked me if I could write a piece about this great Filipino nationalist and statesman, his lolo, on the occasion of Ka Tanny’s 110th birth anniversary, I was a bit fazed. I had no anecdotes of my own to recount, no fond memories to recall.

Then I remembered Senator Bobby Tañada remarking to me wistfully some years ago, after he had just spoken at the national convention of the College Editors Guild of the Philippines, the decades-old association of campus journalists nationwide, that the youth no longer seemed to know who Ka Tanny was and what was his legacy to the Filipino nation.

It is a fact that the truly towering political leaders of this country, nationalists and democrats all – Claro M. Recto, Jose W. Diokno and Lorenzo M. Tañada – have not received the kind of honor and emulation they deserve and through which their legacy can be preserved and promoted to the next generations. An indication that we still have a very long way to go to realize precisely the causes they fought for.

BAYAN rendered a simple yet heartfelt tribute to Ka Tanny last August 10 at the Bantayog ng mga Bayani. It has devoted a special place in its website www.bayan.ph to celebrate his lifetime of service to the cause of freedom, justice and democracy for the Filipino people. A related website www.arkibongbayan.org uploaded tributes to him and photos of the commemoration.

Ka Tanny’s legacy is critically important and relevant to our people’s struggle to freely chart our own destiny without interference from the US and other foreign powers; to establish a truly democratic government; and to develop a progressive economy that will lay the basis for social justice and lasting peace.

He is best remembered for being the leading and uniting figure in the 14-year struggle to end the fascist dictatorship of Marcos; for exposing what he called “the monumental folly” of the Bataan Nuclear Power Plant and leading the historic Welga ng Bayan (People’s Strike) against it; and for making the clarion call to reject the RP-US Bases Agreement and free the country of foreign military troops and bases once and for all.

He untiringly fought for honesty and integrity in public office, setting himself up, in his twenty-four years in the Senate, as a sterling example. Under martial rule, he took up the cudgels for the political prisoners and innumerable victims of human rights violations at the hands of the military and paramilitary forces. In his ripe, old age Ka Tanny steadfastly marched in the streets to militantly assert civil liberties and uphold the people’s democratic rights.

He epitomized principled unity within the anti-dictatorship movement: his stature, wisdom and prestige as well as his humility and openness to contrary views served to rein in others’ ambitions, pride, deep-seated prejudices and self-defeating sectarianism. His statesmanship was displayed in his recognition of varying arenas and forms of struggle that were necessary to topple the dictatorship and establish a genuine democracy.

Most of all, Ka Tanny had an abiding faith in the Filipino people, especially the masses of workers, peasants and the student youth, that they, properly awakened and organized, would rise up against their exploiters and oppressors and use their power to usher in real and necessary change.

Faced with the current illegitimate government of Mrs. Gloria Arroyo, one that is extreme in its subservience to US imperialism, its hunger for power, its corrupt and exploitative ways and its bloody suppression of the people, Ka Tanny’s principles and shining example should continue to enlighten and inspire Filipino patriots and freedom fighters everywhere, in this generation and the next.#

Back where I started

The revolutionary ferment in the late sixties and early seventies reached a historic peak in the First Quarter Storm of 1970. Students, many of them from UP and the University Belt or U-belt in Manila, made up the huge bulk of the demonstrators who massed in front of Congress against President Ferdinand Marcos' state of the nation address on January 25, 1970. Their brutal dispersal by the police sparked a pitched battle in the streets leading up to Malacañang wherein scores of fearless demonstrators rammed a fire truck into the gate of the presidential palace in raging protest.

My brother, a former Engineering student at UP who had just transferred to the University of the East, was one of them. A UP freshman at the time, I marveled at his youthful audacity even as I quailed at the thought that he could have perished that night for a cause that was as yet nebulous to me.

The military and police armed assault on the UP campus in Diliman in February 1971, as students protested centavo increments in fuel prices and the “Seven Sisters” international oil cartel, shattered all my remaining illusions about the university’s ivory tower existence and the inviolability of academic freedom. The experience of the Diliman Commune led to the opening up of my mind and heart to revolutionary ideas and corresponding action.

A UP student’s possible reading selection included essays by various progressive and liberal authors in the Philippine Collegian, Renato Constantino’s nationalist writings, Jose Maria Sison’s Struggle for National Democracy, Amado Guerrero’s Philippine Society and Revolution, Marxist books on political economy and philosophy and, of course, the staple of the seventies activist, Selected Works of Chairman Mao. Most of this reading fare, however, could not be found in the ordinary class syllabus.

Teach-ins, rallies, demonstrations and strikes on a whole slew of issues from student welfare and democratic rights to the hottest issues of the day in the national scene as well as “DGs” or discussion groups on the deeply-rooted problems of the country – imperialism, feudalism and bureaucrat capitalism as the radical activists named them -- abounded.

By the time I ran for university councilor with the slate of the Sandigang Makabansa in 1971 and again as vice-chair in 1972, I had left behind the comfortable confines of UPSCA and its brand of half-baked political activism as well as my notions of scholarship insulated from social realities.

Campus politics then became inevitably framed in the "moderates" vs “radicals” contradiction. Most traditional organizations such as the Greek-letter fraternities/sororities and well-entrenched groups like UPSCA aligned themselves along these lines versus the national democratic or “nd” student organizations. A political party or coalition’s stand not just on campus issues but on national, especially political, issues became critical and defining.

The government’s intelligence agencies, especially their psychological warfare and dirty tricks departments, directly and indirectly intervened in campus politics. They used red-scare and smear tactics that resulted in their covertly-supported candidates winning the chair and vice-chair positions in the hotly-contested 1971 elections but failed miserably the following year when the “nd” activists scored a landslide victory just before the declaration of martial law.

All these things were happening as the crisis in Philippine society further developed and ripened, until the ruling elite, unable to rule in the old way and led by an ambitious, wily and ruthless politician in the person of UP alumnus Marcos, set up a US-backed fascist dictatorship with the declaration of martial law on September 21, 1972.

Many student activists went underground or to the hills. Student councils, school papers, all student organizations were banned. Students were not allowed to congregate more than three at a time and college buildings were literally fenced off with chicken and barbed wire. Security guards and plainclothes military agents made sure that there would be a tight lid on any rumblings of protest and activists were promptly apprehended if they dared undertake any kind of mass action.

Some, like me, were arrested after a stint in the underground. In June 1973, I had actually reenrolled after my mother had presented me to then UP president S. P. Lopez, as a chastened student leader reconciled to the reality of martial rule and the harsh constraints it imposed on everyone, including an academic institution like UP, tagged as the hotbed of student radicalism. Unfortunately, my family’s initial attempt to reintegrate me into a humdrum existence in a suppressed UP was interrupted by arrest, interrogation, torture and detention at the hands of the military.

After my release came the inevitable crossroad: go back to the underground or back to school. My parents won out and even talked me into entering medical school. They said I could be an activist in an acceptable way by becoming a doctor; I could even have more than the humanitarian doctor’s usual share of indigent patients. I thought about it in a slightly different way. I could do revolutionary organizing among the poor while I went about my work as a harmless-looking physician ministering to her patients.

In medical school, it was a struggle to keep one’s revolutionary political and philosophical moorings and pass yet another grueling exam in human anatomy or physiology. For all medical students, it is a struggle to keep one’s humanity; to be reminded that one is more than an empty vessel to be filled with the lore of medical science by diligently attending classes and poking one’s nose in one’s books or peering into our patients’ orifices.

For the truly humanitarian, and more so the activist, it was a struggle to sustain one’s pro-people orientation and one’s ties with the masses. So that you never forget what it all is for: service to the people. A key activity was doing social immersion, i.e. living and working in rural and urban poor communities, every opportunity we had, particularly during summer breaks.

Until graduation time and we reached yet another decision point: to go on for another three-to-five-year residency training program in a specialty and work in a hospital or jump into general practice and do community-based public health work. I chose the latter. I would fulfill my original reasons for becoming a physician: to go back to working with, among and for the exploited and oppressed and fight the dictatorship shielded by some kind of professional credentials.

It didn’t take long before I found myself doing more political – i.e. activist-political – work than work as a clinician. No matter. In UP medical school and in the Philippine General Hospital, I learned firsthand that the physical ills of our people will never be decisively healed without healing first and foremost the ills of our chronically debilitated and crisis-ridden society.#