Making Land Rights Accessible: Social Movements and Political-Legal Innovation in the Rural Philippines

Abstract

In recent years, rule of law and legal reform has grown to be a major concern of national governments, international financial institutions, development agencies and donor organisations. Part of this concern has focused on expanding access to justice for the poor. However, little effort has gone into understanding the role of justice sector institutions in shaping the opportunities and limits of redistributive justice. Little attention has been paid to the actual workings of obstacles entrenched within the justice sector to land reform, for example. Instead, pro-market scholars cite difficult legal problems as a reason to turn away from state-led land reform and toward market-oriented land policies. Yet as this paper shows, a closer look at the details of dynamics around land reform in the Philippines suggests that political-legal problems associated with implementation of the agrarian reform law can be overcome under certain conditions. It is argued that for rural poor claimants it is important to have access to a support structure for political-legal mobilisation, particularly an alternative ‘rights-advocacy’ outreach network, and also to adopt an integrated political-legal strategy. An integrated political-legal strategy is one that is capable of activating state agrarian reform law, exploiting independent state actors' pro-reform initiatives, and resisting the legal and extra-legal manoeuvres of anti-reform elites. However, such a strategy appears to have limits as well.

Acknowledgements

This paper is part of a DFID-funded three-year research project, ‘When the poor make law: comparison from Brazil and the Philippines’ carried out under the auspices of the Law, Democracy and Development Programme of the Institute of Development Studies (IDS) in Brighton, England. Thanks to Lea Banares, Danny Bernal, Benhur Bobis, Dong Calmada, Danny Carranza, Val Clamonte, Gema Escobido, Bong Gonzal, Wendy Ludovico and Sting Tapia for research assistance; and to Saturnino Borras Jr., Peter Houtzager, Ben Kerkvliet and Peter Newell for useful comments on earlier drafts. Thanks also to two anonymous referees for JDS. Any errors are my own.

This paper is dedicated to the memory of Ka Eric Cabanit, founding chair of the local farmworker's group WEARBAI (one of the case studies presented here) and the national secretary-general of the peasant movement UNORKA. Cabanit was assassinated in April 2006 in Panabo, Davao del Norte.

Notes

1. Silliman (1981–1982: 99) found that ‘(G)oing to the law is often a political tactic designed to acquire resources of power to influence an opponent in an arena outside the judicial structure.’

2. Some agrarian reform legal advocates stress the obstacles to winning land claim cases in court. The present discussion has a different starting point: given the flaws and abuses of the legal system in processing land rights claims, are there groups that succeed in overcoming the obstacles and if so, how do they do it?

3. See Deininger (1999). See also Franco, 1999a; Reyes, 1999; Borras, 2005 for World Bank attempts to halt CARP and implement MALR in the Philippines.

4. See Franco, 1994, 2001b.

5. See Lara and Morales, 1990; Putzel, 1992; Reidinger, 1995.

6. Rural villagers use direct negotiation and informal mediation (areglo) methods originating in pre-colonial time (Scott, 1982: 130–134), including the payment of monetary compensation for murder, partially sanctioned violent retaliation (ganti) and kin feud (áway pamilya) (see Hirtz, 1998; Houtzager and Franco, 2004).

7. A total of 42 village-level FGDs were conducted in four municipalities in two regions. While customary law sometimes figured in the processing of land disputes among villagers, it never did in land conflicts between villagers and large landowners. See Franco, 2005.

8. The latter refers to any village and municipal official whose actions reinforce rather than resist a landlord's self-interested will, including judges, public attorneys and police.

9. This came out in FGDs conducted in both Bondoc Peninsula and Davao del Norte.

10. Van Donge makes a similar observation in Malawi (van Donge and Pherani, 1999: 65).

11. The Americans vested independent judicial power in a national Supreme Court, provincial Courts of First Instance and municipal Justices of the Peace, and ‘the adjudication of titles to real estate soon became … a most important function of the courts’ (Forbes, 1945: 146).

12. Interview, Marvic Leonen, law professor and alternative law movement leader, 11 October 2001, Quezon City.

13. Interview, Mabel Arias, prominent agrarian reform lawyer, 11 October 2001, Quezon City.

14. Regional directors' decisions can be appealed to the Office of the Secretary and then the Office of the President. Decisions made at the Office of the President may be appealed at the Court of Appeals and the Supreme Court. In all instances, aggrieved parties may file a motion for reconsideration but, only one such motion is allowed per level before an appeal must be filed at the next level.

15. According to a landmark study by the Institute of Judicial Administration at the University of the Philippines Law Centre for the Department of Agrarian Reform in 1996, ‘On the average, ALI cases are resolved within a period of 2,433 days (6 years, 8 months), while DARAB cases get resolved in 442 days (1 year, 2 months, 17 days)’ (DAR, 1996: 7). ALI cases are more numerous than quasi-judicial agrarian cases (DARAB cases) (see the DAR, 1999: 14; DAR, 2000: 12).

16. Land valuation and ‘just compensation’ cases start at the PARAD, RARAD or DARAB in the quasi-judicial system and can be appealed at the Special Agrarian Court (SAC) – a special session of the regular trial court.

17. It is unclear how many cases were resolved in favour of landless rural poor claimants. Despite the improved case resolution rate during the period 1992–1998, Secretary Garilao complained that ‘Appealed cases at the Central Office level remain a problem. By law, the DAR Adjudication Board has only three full-time members. Even at 300 cases per member per year, the DAR can only resolve 900 appeal cases’ (Garilao, 1998: 26).

18. Interview, Edgar Lopez, SAMACA leader, October 2001, Quezon City.

19. Interview, Edgar Lopez, SAMACA leader, October 2001, Quezon City.

20. Interview, Edwin Pancho, former Agrarian Reform Specialist, BDP Programme.

21. Interview, Santiago Corpuz, PEACE Community Organiser, April 2002, Quezon City.

22. Interview, Edgar Lopez, SAMACA leader, October 2001, Quezon City.

23. Interview, Anna Teh, former executive director of DARAB, 10 October 2001, Quezon City.

24. Interview, Danilo Carranza, PEACE Community Organiser, May 2003, Quezon City.

25. This is my own account of the reinstallation. The military detachment remained in place for a year, before withdrawing without incident. Five years later, peace still prevailed inside the property.

26. The late Antonio Javellana and the late George Mercado, both from elite families in the banana sector, assisted the farmworkers.

27. PARO Sibbaluca letter to UFEARBAI, 22 July 1998.

28. See Borras (1999) for the DAPCO struggle, and Franco (1999c) and Franco and Acosta (1999) for the Hijo struggle; see also Borras and Franco (2005).

29. Mindanao Times News, ‘DAR office ‘padlocked’ by disappointed ARBs’, 10 May 2000.

30. DAR, Office of the Undersecretary for Field Operations and Support Services, Order, 11 May 2000.

31. In addition, after July 1998, there remained the battle to subject the remaining 618 hectares of the 1,024-hectare plantation, the portion the Floirendos sought surreptitiously to exclude, to redistribution.

32. The most recent victim of this failure was Enrico Cabanit, the retrenched WADECOR farmworker who helped pioneer the new strategy in the late 1990s. A founding leader of UFEARBAI, Cabanit later became the national secretary-general of UNORKA. He was gunned down by a masked assailant in the public market in Panabo City, Davao Norte, after attending a meeting with key DAR officials where the erroneously issued CLOAs and the Floirendos' exemption petitions in the WADECOR plantation was discussed. A flawed official murder investigation has fuelled suspicion that it was a contract killing involving members of the Panabo police.