ISSUE ANALYSIS No. 10
July 3, 2008
Series of 2008

Putting the imperatives of the elite-dominated state supreme over the fundamental rights of the people is a dangerous doctrine. In interpreting the law, the court's mandate is to be on the side of basic rights – expand them if need be – and make justice more accessible to those who have less in life.

Turning palms into clenched fists

By the Policy Study, Publication and Advocacy (PSPA)
Center for People Empowerment in Governance (CenPEG)

The Supreme Court (SC) now faces the daunting task of ministering to reforms of the Philippines’ justice system which remains largely inaccessible to most Filipinos particularly poor litigants. By opening the gateway to citizens’ participation – at least through policy recommendations – aimed at making the justice system closer to the masses, the high court also faces a challenge to make amends. It is being asked to revisit rulings that it handed down on landmark cases seen to have caused a grave impact on poor Filipinos’ social, economic, and cultural rights. Judicial activism, steered by SC Chief Justice Reynato Puno, now stands as a respondent in a people’s case.

The first step taken by the SC toward instituting reforms in the judiciary and criminal justice system to make it accessible to the poor was a “Forum on increasing access to justice” held last June 30 – July 1 at the Court of Appeals (CA) compound in Manila. The Manila forum was joined by some 150 delegates from people’s organizations and NGOs as well as justices, judges, lawyers, and government representatives – with a similar number of participants in Cebu in the Visayas and Cagayan de Oro in Mindanao interacting by video conference.

The recent forum was a follow up to the summit on extra-judicial killings (EJKs) convened by CJ Puno in July 2007. (See “Collision course,” Issue Analysis No. 14, July 19, 2007 at www.cenpeg.org) The July 2007 summit was the high court’s response to domestic and international pressures for an end to extra-judicial killings and forced disappearances that had left more than a thousand social activists dead or missing in six years of the Arroyo regime. This time around, this week’s forum sought to stabilize the scale of justice that is tilted against the poor in the context of the people’s economic, social, and cultural rights (ESCR).

The ESCR, embodied in the country’s Constitution and in various international treaties and conventions, upholds a person’s right to life, food, jobs, shelter, education, beliefs, and other basic rights. Held as inviolable, inalienable and indivisible, ESCR is supposed to be guaranteed by the state through its governance and a justice system that ensures the protection of such overarching rights over and above the imperatives of the state. Unfortunately, no such thing exists in the Philippines despite government claims to being a democracy. And it was a poignant irony to hear injustice being talked about inside the halls of justice.

Testimonies and grievances

Listen to the preponderance of testimonies and grievances of representatives of farmers, labor, urban poor, fisherfolk, vendors, women, indigenous peoples, Moros, senior citizens, and other marginalized classes and sectors on the country’s judicial system:

• Low awareness and capability of many magistrates, court administrators, prosecutors, quasi-judicial courts, arbiters as well as security personnel on the economic, social, and cultural rights of individuals not to mention Philippine and international laws providing for such rights;
• Widespread and systemic violations of the poor people’s ESCRs by the powers that be are aggravated by connivance between state authorities and the violators;
• A judicial system from the barangay to the national levels subverted by corruption, political patronage, and other problems that make the administration of justice and disposition of cases detrimental and prejudicial to the rights of poor litigants;
• A judicial environment hostile to poor litigants where they bear heavy burdens ranging from prohibitive fees, court personnel’s lack of sensitivity and compassion, discrimination especially against women, juvenile offenders, indigenous peoples, and Moros, as well as harassments;
• A language barrier where court proceedings and documentations are conducted in English making them incomprehensible to the poor;
• Human rights defenders, environmentalists, paralegals and other volunteers are treated with non-recognition and condescension by fiscals, prosecutors, police agencies, and even magistrates;
• The tendency of state authorities to criminalize acts done by poor people together with social activists and community leaders while defending their rights often leading to extra-judicial killings, forced disappearances, and other human rights violations

Under these conditions, the poor are dispossessed of their lands, lose their jobs, or are deprived of access to communal resources. Suspects in criminal and related cases are guilty simply because they have no means to prove their innocence. Poor litigants prefer suffering in silence to engaging in long and tedious suits that waste away their lifetime savings or force them to incur debts. In short, the poor are further marginalized by a judicial system that is hostile to their pursuit of justice. It is not surprising that the country’s prisons are congested with inmates coming from the poorest of the poor. Access to the court, like managed public toilets, is measured by one’s ability to pay.

People’s rights

Access to justice, however, refers not only to the adjudication or disposition of cases, whether civil or criminal. Basically, it pertains to an individual’s enjoyment of economic, social, and cultural rights as well as civil and political rights that include the exercise of civil liberties, due process of law, and self-determination, among many other rights. The first set of rights is alien to the poor simply because of their lack of access to land, food, shelter, education, jobs, and other economic and social rights and welfare services.

In a country that has been historically dominated by the elite, access to the ESCR by the poor is determined by a power relationship that vests the rich and powerful with more rights leaving the lower classes with nothing. Hegemony in terms of wealth and influence gives the elite the monopoly to administer the state which is comprised of the government, political parties, the electoral process, the coercive machinery of the police and military, as well as the legal and judicial system. The poor, once marginalized, have simply no access to the courts of justice. The court system serves as a charade of democracy that means nothing to the poor.

Just the same, the judicial reforms being spearheaded by CJ Puno are welcome under a situation where the government is fast losing public trust while the credibility of the court system is badly eroded. One unanimous recommendation from the forum including lawyers and judges in attendance was to put an end to political patronage in the court system by transferring the appointive powers of the chief executive on all magistrates to the SC assisted by the Judicial and Bar Council. Aside from this, a multi-sectoral body representing the marginal sectors will be formed to advise both institutions with regard to appointments.

Key to the institutionalization of reforms is for the reformer to build its own credibility, to be a role model by matching its words with actions. The SC which Puno heads is now being asked to perform an act of redemption or, if you will, soul-searching. Among the policy recommendations of the forum participants is for the high court to revisit major rulings that are perceived to have made the lives of the poor – for that matter, the whole country - more miserable. These include, among others, the General Agreement on Tariff and Trade (GATT), the 1995 Mining Act, E-vat, oil deregulation, as well as the 1998 Visiting Forces Agreement (VFA). In rendering its judgment on these landmark issues, the high court chose to either affirm the controversial laws or, adhering to the constitutional separation of powers, to rule that the imperatives of the chief executive are a matter of “political question” that is beyond the legal ruminations of the court.

This is a dangerous doctrine precisely because it puts the imperatives of the elite-dominated state supreme over the fundamental rights of the people. In interpreting the law, the court’s mandate is to be on the side of basic rights – expand them if need be – and make justice more accessible to those who have less in life.

Once justice is compromised, the poor will find other recourse outside the legal institutions more compelling. In his initiatives toward judicial reform, Puno mentions of anti-poor laws, court practices that ignore the social context of the poor, and “large inequalities in wealth that lead to disparities in political power and the enforcement of laws.” He also admonishes about open palms begging for justice today - and turning into “a sea of clenched fists” tomorrow.

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