August 29, 2008

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


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