Continuing the Struggle to Reclaim the Definition of the Rule of Law

Continuing the Struggle to Reclaim the Definition of the Rule of Law

Speech of Rep. Kaka J. Bag-ao, Akbayan Partylist

07 August 2010

Delivered at Western Mindanao State University, Zamboanga City

Every time I come across the term “Rule of Law” the very images that come to my mind is that of the anti-riot police dispersing protesters violently with water cannons, rubber bullets, truncheons and shields. The most vivid image that comes to my mind are the bloodied faces and torn shirts of ordinary people whose only fault is that they had the courage to stand up and fight for their rights.

These grim images that the phrase “rule of law” elicits are not without bases. It was used to justify Marcos’ Proclamation 1081 which in September 21, 1972 plunged our country into the dark abyss of Martial Law, a dark era in our history that lasted for more than a decade. Rule of Law was also used to justify Proclamation 1017, which in February 24, 2006 put our nation into a State of Emergency.  This proclamation was unleashed to quell the snowballing popular protests questioning the legitimacy of the presidency of Gloria Macapagal-Arroyo. Thanks to this proclamation, Arroyo survived. The Supreme Court later declared Proclamation 1017 and its companion policy Calibrated Preemptive Response (CPR) unconstitutional but the damage was done.

These, and many other examples in Philippine history, has limited the concept of the rule of law to that which justifies the actions, policies and declaration of the State and its coercive arm – the military and the police – in crushing opposition and in securing the continued rule even of the most corrupt governments.

The term “rule of law” has been stolen and given a limited, narrow, shortsighted, violent and selfish meaning. Therefore we have to struggle to reclaim the more progressive meaning of the rule of law. Essential to the struggle to reclaiming the definition of the rule of law is the alternative definition itself as this has implications on the strategies that will have to be employed.

Rachel Kleinfeld Belton, in her paper entitled Competing Definitions of The Rule Of Law: Implications for Practitioners, published by the Carnegie Endowment for International Peace said that  “rule of law is not a single, unified  good but is composed of five separate, socially desirable goods, or ends.”  She enumerated the five (5) desirable goods or ends as: (1) a government bound by law, (2) equality before the law, (3) law and order, (4) predictable and efficient rulings, and (5) human rights.

Applying this view of the rule of law to the situation in the Philippines, one can easily conclude that the advocacy for reforms is a multi-faceted and difficult struggle. Our experience with the impunity of the Arroyo administration is still fresh and it shows us the magnitude and gravity of the co-optation of the various government and democratic institutions in order to ensure the survival of the Arroyo administration.

We have seen how her administration issued policies and strategies that were later on struck down as unconstitutional only to survive the critical and dangerous conjunctures of her administration. She abused to the hilt the appointive powers of her position to put into place people who have blind allegiance to her whether it be in the police and military establishments or the judiciary.  She abused to scandalous proportions the powers of her office over government resources to command allegiance from Congress, especially the House of Representatives, and local government officials to abide her bidding without question. The office of the Ombudsman which is constitutionally mandated to investigate and prosecute cases of government corruption was transformed into an institution where the wheels of justice either grind too slow or too fast in acquitting and clearing Arroyo and her allies.

One of the greatest battles to be fought in this struggle to struggle to regain the definition of the rule of law at the present conjuncture is to exact accountability from Arroyo and her allies in her administration for their actions.  We, in Akbayan are doing our modest share in this struggle. We have began, in earnest, our campaign towards the dismantling of the defenses that the Arroyo administration built around her to provide her immunity from facing the accountability and responsibility of her actions during her incumbency as president.

We have opened a battlefront in the halls of Congress. We have sponsored an impeachment complaint against Ombusman Merceditas Gutierrez, Arroyo’s frontline defense against charges of plunder and corruption, for culpable violation of the Constitution and betrayal of public trust. We have fired our opening salvo against former-President-now-Congresswoman Gloria Macapagal-Arroyo in the very halls of Congress at the risk of being accused of being “unparliamentary” and “unethical”. We have initiated the investigation of the charges of corruption against the former president and her allies that President Aquino mentioned during his first State of the Nation Address.

Fighting for the reinstatement of the rule of law, in its most progressive meaning, means subjecting even a former president to the rule of law. If we are to regain respect for the rule of law, then we have to show the citizens of this country that even the most powerful individual does not have immunity.

However, this is just one facet in the struggle to re-establish the rule of law. I, as a lawyer and now a legislator, firmly believe that empowering people in terms of the law is both a means and an end in this struggle. I am a member of the Alternative Law Groups, a network of legal institutions which share, among others, the principle that the practice of law should not just be the realm of lawyers and magistrates but should include ordinary citizens. We have developed this principle and concept into what we call “Paralegalism.” I would like to illustrate this point by telling you a short personal story.

Sometime in 1995, in one of our paralegal clinics with farmers, a man stood up and asked a simple question.  “We have accomplished the farmers’ undertaking with the Municipal Agrarian Reform Office (MARO) and we have been waiting for the DAR to cover the landholding. What do we do next?”  he asked. And I answered him with the usual answers, explaining to him the next steps in the process and illustrating what they, as potential beneficiaries, can do.  A week later they came to the office for consultation. They have received a notice that a case was filed against them to cancel their title. They did not even know that they have a title to the land. And even then, the case remained simple, they only had to show that they were qualified beneficiaries of the land given to them. But the rule of law is not that simple. The land that was given to them involved vested interests of the powerful who have powerful friends. Thus, the simple case of a small group of farmers became a complicated one and it even reached the Supreme Court.

We later learned that then Bukidnon Governor Carlos Fortich wrote to then-Executive Secretary Ruben Torres protesting the distribution of the 144-hectare Quisumbing property to agrarian reform beneficiaries in San Vicente, Sumilao, Bukidnon. That simple letter of a governor, who was not even the owner of the land in question, started a long legal battle.

To make the long story short, Sec. Ruben Torres, by virtue of the simple letter of Gov. Fortich, reversed DAR, who wanted to distribute the land to the farmers, and approved the application of Quisumbing to convert the land. The case reached the Supreme Court and the case is what is now known as Fortich versus Corona. In this case, the Supreme Court upheld the decision of Sec. Torres on a mere technicality – the DAR failed to file an MR on the Torres decision on time. The Supreme Court effectively upheld the conversion of the land from agricultural to agro-industrial, exempting it from the coverage of CARP.

Up to now I still cannot comprehend how the Supreme Court became a stickler for technicalities against the farmers but conveniently overlooked the simple fact that Sec. Torres acted not on a formal petition by the owner of the land in question but on a simple letter of a governor.

The case became very complicated to the point of the absurd. It even came to the question of cases and matters and how the ruling would go if the vote in a division of the Supreme Court was a tie. We strained the legal remedies to the fullest and even filed so many MRs to the point of being at risk of disbarment.

The complication of the case is a story on its own. Let me go back to the Sumilao farmers. Throughout the 12 years that the struggle lasted, through education and learning sessions, through the legal clinics that we have conducted, the Sumilao farmers learned not only the intricacies of their case, but also the agrarian reform law, by heart. We, consciously and by design, made them articulate the issue and present their arguments themselves in front of the DAR and the public in dialogues and negotiations.  I believe that this process empowered them so much that in the end, despite the heartbreaking loss in the Supreme Court, they kept hoping that another opportunity would arise for them to reclaim the land. The opportunity indeed came. The Quisumbings sold the property to San Miguel Corporation who began to build a multi-million peso hog farm. And this was a violation of the conversion order issued by Sec. Torres.

The process empowered the Sumilao farmers to the extent that they realize that they cannot simply question this violation in the Office of the President, in the DAR and in the courts. They have learned from their experience that they had to find ways to shift the balance of forces to their favor. And that was what the historic 1,700-kilometer march from Sumilao to Malacañang was all about. It was huge sacrifice seeking to tilt the balance of forces in order to neutralize the political and economic advantage of their opponent. It was a sacrifice that earned the solidarity of millions of Filipinos. The rest is history.

Paralegalism, applied in the context of the Sumilao farmers can be embodied in one person.  The same farmer who asked me his simple question was able to argue even with the DAR Secretary, the Presidential Spokesperson, the lawyers of San Miguel. He was able to explain their case to Cardinal Gaudencio Rosales, to congressmen and senators. He even helped other farmers with their cases. Barely a year after the resolution of the Sumilao case, he led farmers from Camarines Sur march to Malacañang and win their case too.

He also participated in the finalization of the provisions of the CARPER law. He argued with lawyers, congressmen and senators about the provisions of CARPER. Two days after the CARPER bill was passed by both Senate and the House of Representatives, Rene Peñas, leader of the Sumilao farmers and Akbayan peasant leader was shot to death, in the land that he and his fellow Sumilao farmers struggled for and won.

Rule of law, ladies and gentlemen, is a situation where laws cannot be used to trample upon the poor and ordinary people. Rule of law is where ordinary people, especially the poor, are able to assert and claim what is due them under the law.

Maraming salamat.

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