A SOJOURNER’S VIEW: Peace and Development as Goals of Legal Education

SPEECH DELIVERED TO PARTICIPANTS OF THE FORUM ON MINDANAO LAW FACULTY DEVELOPMENT PROGRAM SPONSORED BY THE PHILIPPINE ASSOCIATION OF LAW SCHOOLS, held at ADDU, 27 September 2015.

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Good Morning to everyone! Or to use one of the languages of the indigenous people living along the Davao Gulf, namely the Sarangani Manobo in Davao Occidental – MEPIYA ISELEM!

First of all, thank you to the organizers of the MINDANAO LAW FACULTY DEVELOPMENT WORKSHOP of the Philippine Association of Law Schools for inviting me to address your distinguished group today. Being one of the few non-lawyers in the audience – if not the only one – it is both a distinct privilege to be standing here in front of you as well as a most intimidating experience. To break the ice, I am immediately tempted to crack a self-effacing lawyer’s joke, but not the one about the 5,000 lawyers drowning at the bottom of the sea being labeled as a good start. Ha ha. Well, talking about the sea, there is this joke:

Q: What’s the difference between a jellyfish and a lawyer?
A: One’s a spineless, poisonous blob. The other is a form of sea life. Ha ha. Joke only ha.

When I was contacted by Dean Jojo Sorrera-Ty to address you at this workshop on the “Current Issues in Philippine Legal Education” and to speak on the topic – Peace and Development as Goals of Legal Education – I must admit that it came as a pleasant surprise. The invitation actually came at a time when I despaired from being able to find lawyers to assist us in the work we are doing. If you will allow me to do so, I will be speak from very concrete experiences which makes my talk a bit more personal.

In my youth, I studied here at the Ateneo when it was still a small college, when there were only two buildings inside this campus. I must confess that Law was at the bottom of the list of courses that I considered taking up; I wasn’t in the least interested to become a lawyer. It was not only because it would take forever to finish the law course and then struggle through passing the BAR. Even then and reinforced by my Jesuit education, I wanted to pursue a career where I can do good to others, to be of service to others.

You know the joke: Q: What do dinosaurs and decent lawyers have in common? A: They’re both extinct. Again, joke only. I think I was not alone among the idealistic youth of my generation who thought that lawyers mainly served the rich.

To make the long story short, after graduation – like so many young people of the 1960s generation – I was drawn to activism. First, I was taken up by the land issue, in regard to the issue of land reform involving both the landless peasants and the plantation workers among banana and other kinds of plantations here in Mindanao, specifically in the Davao region. As you know by now, the whole myth of Mindanao being Land of Promise is shattered by the extent of landlessness in this region. Along with the Maryknoll missionaries who were inspired by Vatican II’s call to resist oppression as well as the theological discourse of liberation theology, I and a few other young lay churchworkers got involved in organizing the Federation of Free Farmers or the FFF.

The FFF in the late 1960s until the imposition of martial law was the most militant peasant organization in the whole country which organized rallies, demonstrations and even set up a political party for the elections then. I met the FFF’s founder, who was at one time the Dean of the Law School of Ateneo de Manila U, Atty. Jeremias Montemayor. True to his name that recalls Jeremias the raging prophet of the Old Testament, Atty.Montemayor and his group of lawyers and other staff persisted in fighting for the rights of the peasants. Perhaps Atty. Montemayor was the first lawyer that I had such high admiration because of his ideals, commitment and Christian option to be on the side of the poor. (This, of course, will change when martial law was declared by Marcos).

Anyway, the lamentation I heard from him was that despite the need for more lawyers to get involved in this advocacy work. But alas, despite the thousands who already had passed the BAR exams in our country by then, there were only a handful that Atty. Montemayor could mobilize in his Quixotic campaign. When martial law was declared, many of us in this movement got arrested; while others defied the State and went up the hills to shift into another kind of struggle. In the course of the dark days and tumultuous nights of martial rule, I was arrested three times.

Among the organizations I worked for during martial rule was the Task Force for Political Detainees organized by the Association of the Major Religious Superiors of the Philippines. Our office here in Davao coordinated the local units across Mindanao which was one of the battlegrounds of State authoritarian despotic rule. This is a fact that needs to be continuously communicated especially to the millennials of today as the Marcoses and their minions are pushing for a revisionist profile of the martial rule. We tried as best as we can to look after the needs of the political prisoners while continuing our campaign to oppose militarization and denounce human rights violations. In this struggle, I would meet another lawyer who I have admired greatly; a person who to me embodies the best of the lawyering profession, the late Atty. Jose Diokno, the founder of the Free Legal Aid Group or FLAG, the group of lawyers who desperately tried their best to assist political prisoners and victims of the martial rule. Once more, I heard the lament from Atty. Diokno and his small group of brave, dedicated lawyers – the work is far too enormous, and there is just so few of us. There were just a small circle of lawyers we can refer cases to, and of course, since most prisoners were poor, no one could afford to pay the lawyers any decent amount of legal fees. It was, indeed, very, very difficult to find lawyers which was why many cases dragged on and on and on. Given the Preventive Detention Action of Marcos, prisoners could not be bailed out and could not be freed until proven innocent in the courts where judges most often were too timid to stand up to the military and the State dictatorship.

TFDP work was subversive work in so far as the State was concerned so we were always kept under surveillance. On my third arrest, I disappeared having been abducted by the military. I could have been salvaged, but luckily they realized I was just small fry so my life was spared. But it was also because Atty. Diokno immediately acted to search for me after I disappeared, by filing a habeas corpus case with the Supreme Court. Which forced the military to surface me. Still I spent almost two years in prison until I was freed just before EDSA 1. In those two years, I realized how significant lawyering work was, as I was lucky that my case was handled by the likes of the late Atty. Larry Ilagan, the husband of the Gabriela Congress representative today, Luz Ilagan. But languishing in prison, I also realized just how ambivalent is the field of lawyering, given the many lawyers and judges who were too afraid to question the validity of martial rule and kept silent even as they knew that people’s rights were being violated.

In such context, one can crack this joke. Q: What do you throw to a drowning lawyer? A: His partners. Again, joke only.

To further cut the story short, after being released from prison, I joined the Congregation of the Most Holy Redeemer or the Redemptorists, also known as Redem-tourists as we travel a lot to do our mission. But during martial law, we were also called Redemp-terrorists by the military. Our congregation which in Latin is Congregatio SantiSimo Redemptio was founded by a lawyer, who is now the patron saint of moral theology, namely St. Alphonsus Maria di Ligouri. Those of you who are familiar with the story of St. Francis of Assisi, could easily see the parallels of these two saints. Born to a rich family, St Alphonsus whose father was a rich merchant, wanted his son to become a topnotch lawyer, partly to protect the interests of the family. Sounds familiar.

In the early 1700s in the Kingdom of Naples, now part of Italy, one became a lawyer by being an apprentice to an established one and thus learning the ropes. At 15 years old, St. Alphonsus was already a practicing lawyer handling litigation cases. Then later on, he lost a case (as the other side had greater power to influence the courts). Sounds familiar, no?

Disgusted by the system, he quit lawyering. He decided to take a vacation in the uplands of Naples where he encountered poor goatherds, and thus began his realization that God was calling him to serve the poor. When his mind was clear as to his vocation, he founded the congregation based on the belief that in God there is plentiful redemption. He and his companions would do whatever they can to help bring liberation to the poor.

In the course of our mission to the uplands, I began to be exposed more to the plight of the indigenous peoples or the Lumad who as you know constitute a big percentage of the Mindanawon population across this island. I saw for myself then that their situation was far worse than the landless peasants and agricultural workers in the lowlands. Ejected from and dislocated from their ancestral territories by land-hungry landowners, logging companies, corporations engaged in agri-business (and now the mining firms), the Lumad could possibly the poorest of the poor in Mindanao.

Deprived of their land rights as well as their right to self-determination, almost totally neglected by the State, looked down upon by migrant settlers and caught in the crossfire between the military and various rebel groups, the Lumad peoples have been so totally marginalized and disenfranchised. Among the Subanens of the Zamboanga peninsula, the Manobo of central Cotabato and Bukidnon, the Mandaya of Davao Oriental and the Bagobo at the foot of Mt. Apo, I found another calling, namely to work among them. One area was in terms of assisting them to be conscientized as to their dignity as human beings and rights as citizens. In this field, once more, I encountered a lawyer that was a source of inspiration. This time, he was not a Pinoy, but a Brazilian, namely Paulo Freire who wrote the seminal book – PEDAGOGY OF THE OPPRESSED, now used as textbook in many universities across the world, especially those in Schools of Education.

First drawn to work as a lawyer among the landless campesinos of Brazil, he shifted gears when he realized that he could do more to help them through setting up literacy classes that would help the campesinos understand the laws of the land and the processes of litigation in courts. This movement became a global phenomenon which has introduced the word conscientization into the English lexicon. Indeed, there are prophetic lawyers out there who challenge the myth of lawyers’ being vampires.

Which brings us to this joke: Q: What’s the difference between a good lawyer and a bad lawyer? A: A bad lawyer makes your case drag on for years. A good lawyer makes it last even longer.

As I became more involved in solidarity work, I realized how little I know about the Lumad. So I took off and studied Anthropology at UP Diliman. The years that I was in UP – 1996 to 2000 – long after the glory days of activism, there was still a strong interest on the part of civil society to support Lumad rights. In the 1987 Constitution, there was finally the recognition of a third category of land aside from private ownership and public land belonging to the State, namely, the category of ancestral domain. This provision in the Constitution demanded legislation but despite the attempts of some Congresspersons and Senators to have a law passed, the process moved with a turtle pace.

Atty. Fulgencio Factoran, a former FLAG lawyer and appointed by Mrs. Cory Aquino as head of the DENR got tired of waiting for the move of Congress to pass a law. He issued Departmental administrative Order series 1993 allowing for the issuance of the Certificate of Ancestral Domain Claim or CADC. From then on, a number of civil society groups, including Church groups, working among indigenous communities assisted them in conducting research and documentation to authenticate their claim over their ancestral territories. I got very interested in this area and consequently decided to write my doctoral dissertation on this topic as I engaged the Manobo in the Arakan Valley in North Cotabato, the place where the Italian PIME missionary, Fr. Pops, was murdered by a somebody with connections to the military.

In the course of my review of related literature, I heard of the section at the third floor of the Library of the Law School at UP Diliman. I was told there is a whole collection there of ethnographic studies detailing customary laws of a big number of Indigenous Peoples across the country. I was to hear later on about how this library section arose. If there are some of you who studied at UP Diliman Law School in the post-EDSA 1 period, you would have heard of Atty. Owen Lynch, an American exchange professor who taught at UP then. Part of what he required of his students was for them to do primary and secondary research vis-à-vis customary laws of the IPs. What resulted was a rich collection of literature which is a delight to researchers like me. I never met the guy but truly he is a lawyer to admire in terms of his concern for the plight of the Lumad and to link their struggles with legal action.

Unfortunately, my hunch is that despite his good intentions, I do not think many of his students would have been attracted to take this lonely path of practicing law among the Lumads, for the gains are so limited. There would be a few lawyers who were with civil society groups like those in PANLIPI, LRC-KSK, GreenPeace and the like. But you could count them with your two hands. I am very sad to say that because it is such an uphill fight to do solidarity work with the Lumad these days despite the passage of the Indigenous Peoples Rights Act or RA 8371 in 1997.

These days I continue to be part of this civil society, our own group of missionaries are presently doing work among the Sarangani Manobo and B’laans in the uplands of Jose Abad Santos, Davao Occidental. It takes about 8 to 12 hours to get to the uplands from Davao City, as one needs to take a bus, a van, a habal-habal and then hike up the mountain trails to reach the villages. Our present work is to assist the communities acquire their CADT as approved by the Register of Deeds. But despite the work that began in 2006, the title still has to be issued, because both CENRO-DENR and the office of the National Commission on Indigenous Peoples or NCIP have no funds to pay for a geodetic engineer to finalize the survey before sending the document to the Register of Deeds for titling purposes. And of course, one needs a good lawyer to assist in this process, which NCIP is supposed to provide, but can’t because in the provincial office, not even one of the 17 staff members is a lawyer.

Just to backtrack a little bit in terms of the Lumad solidarity work in Jose Abad Santos by civil society groups such as the Diocese of Digos and Assisi Foundation. At the height of the major drought in 1997-98, Tabang Mindanao was established. First response was to provide relief goods to the Lumad communities and set up water systems. But since IPRA was passed by then, the NGO and the Church teamed up with the NCIP for a CADT application, involving just over 2,000 hectares, a very small portion of land considering that only less than 70 years earlier, all the land across the whole Davao Region belonged to the Lumad. The process began in the early 2000. NCIP Commission in Manila approved the CADT application as early as 2006, but there were still hitches which meant the title could not be issued. It turned out there were still claims from migrant settlers so CENRO could not approve the initial survey and demanded a re-survey. Unfortunately both CENRO and NCIP do not have the money to hire a geodetic engineer so the process stopped.

When we took over the administration of the mission station in August 2014, we attempted to resurrect the process but with the slow response of the NCIP, it took another year to get the process re-started. We decided to call a general assembly of MALOKA, the PO of the Manobo-Bl’aan who applied for the CADT. This was to be a two-day forum that would explain to the people why the CADT titling had no progress. It meant revisiting the IPRA law, thus, we were desperate to find a lawyer both within and outside NCIP to come with us to the uplands to help explain IPRA. And try as best as we can to find good lawyers to join us in going to the uplands (which meant an 8-hour ride from Davao City), doors of law firms we approached were closed and truly, there was no one who we could tap here in Davao City for this purpose. We found one lawyer of DAR who came all the way from Manila to join us because of his interest in this issue. An ADDU law graduate – who is with the government now – also came along but he confessed that he knew nothing about IPRA.

Imagine how frustrating this whole process was. Close to two thousand Lumad walked hours to reach the venue of the forum because they were hungry to hear about IPRA and their CADT application. And we had no lawyer to explain the law to them in simple language that they could understand. Fortunately, one non-lawyer NCIP staff of the Sarangani Province came along, and he was the only one who could interpret IPRA to the satisfaction of the Lumad. Two lawyers with inadequate knowledge of IPRA to two thousand Lumad – that ratio breaks your heart!

It is no wonder that at a recent gathering, an NCIP staff person claimed that more Lumad are being drawn to sympathize with the NPAs who have long penetrated the uplands. He also claimed that right now, the majority of the ranks of the NPAs’ foot soldiers are the Lumad drawn to join the rebels being dissatisfied with their lot and the State’s neglect of their welfare. The military knows this fact which is perhaps one reason behind the recent Lumad killings in Mindanao, especially in Surigao.

Meanwhile, apart from being concerned with the Lumads, I also got drawn into the advocacy to support the Moro people in their struggle for self-determination as I embraced the ministry of peacebuilding and inter-faith dialogue. As you know, the whole process now has shifted to the parliamentary struggle of getting the Bangsamoro Basic Law passed in Congress. But then in the wake of Mamasapano, it’s been a nerve-wracking, frustrating journey for Mindanao peace advocates both among the Moro and migrant settlers communities. At the forefront are legal and constitutional discourses related to questions of territory, autonomy, patrimony and sharing of wealth. Once more the field demands lawyers who are willing to go down to grassroots communities – and with a commitment to NOT fall into the temptation of allowing age-old biases and prejudices to come up with a reasonable debate on the contentious issues – to help in the peacebuilding process, so desperately needed now given the lack of a public sphere that allows the Habermasian field of the best argument to rule the day.

For us Mindanawon peace advocates, it has been so frustrating to listen to the debate and discussions in both Congress and the Senate when one can easily see where most of our Congresspersons and Senators are coming from. It brings to mind a joke dealing with those people in the Senate. Q: What do you call a lawyer with an IQ of 100? A: Your Honor. Q: What do you call a lawyer with an IQ of 50? A: Senator.

I do not want to sound very pessimistic about the state of lawyering in our country today. But such has been my experience of the last half-century since I developed a critical mind and translated this to praxis. While there have been lawyers whose ideas, concepts, actions and commitments have inspired me and I’ve mentioned the likes of Attys. Montemayor, Diokno, Freire, Lynch , Ilagan and Factoran, the fact of the matter is that many are called by very, very few are chosen to move into this field.

Thus, I was quite amazed when I saw the program of this workshop and there was a blurb to introduce my session that reads: Lawyers are often known to be litigious and adversarial. Can lawyers become peacemakers? This session will highlight the need for the legal education system to equip future lawyers with skills and competencies that will capacitate them to promote peace and development, most especially in Mindanao.

There is no denying the fact that you as lawyers are, indeed, litigious and adversarial and I guess that goes with the territory, the demands of your profession. But I do hope the discourse of lawyers as peacemakers can finally take off, not just at the level of talk, but that a few more among you would walk the talk. Thus, the need – among others – of the legal education system to equip future lawyers with skills and competencies that will capacitate you to promote peace and development. Is this at all possible? Can law schools be enticed to make sure there are courses integrated into the whole curriculum that will make this happen? Is the body tasked with looking into Law schools’ curriculum convinced of the importance of this field, when really all that Law schools care mostly about is for their students to pass the Bar?

I am glad to know, though, that there have been some efforts to integrate sessions on issues such as Agrarian Reform, Human Rights and the Environment in some of the Law Schools. And that these are regular and prescribed subjects of the curriculum. But can we hope that these subjects are really given the importance that they deserve in all schools, especially in Regions like Mindanao where these issues are so relevant?

Can one be optimistic that this will all come to pass? If I were not, I would not have come to address you, believing that speaking to you will just be a futile exercise. But in my advanced years, I have come to realize that change does take a long while, and who knows, the stirrings that are taking place among your ranks could swell into strong currents in the future. For I do believe that the fluttering of the wings of a butterfly at one part of the planet can create typhoons on the other side. But what needs to be done to make this possible?

I guess there is a need to review the curriculum of Law Schools, perhaps even from Pre-Law stage all the way to the last stage. Can some subjects be integrated dealing with peace and development issues and their repercussions in the field of law? Can there be discussions of various philosophical, historical, anthropological and legal theories and discourses that deal with peace and development, contextualized within the concrete realities of our country and the regions where we are located? Can there be a thorough discussion of some of the most important laws dealing with peace, development and integrity of creation issues/ Perhaps some of the professors to be invited to teach are those who have actual experiences in advocacy work dealing with such issues. Some of the laws that should be required readings for discussion purposes in the classroom should involve the following:

1, REPUBLIC ACT NO. 7586 – AN ACT PROVIDING FOR THE ESTABLISHMENT AND MANAGEMENT OF NATIONAL INTEGRATED PROTECTED AREAS SYSTEM, DEFINING ITS SCOPE AND COVERAGE, AND FOR OTHER PURPOSES.
2. There is also the Philippine Mining Act of 1995.
3. REPUBLIC ACT NO. 8371 – AN ACT TO RECOGNIZE, PROTECT AND PROMOTE THE RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS PEOPLES, CREATING A NATIONAL COMMISSION ON INDIGENOUS PEOPLES, ESTABLISHING IMPLEMENTING MECHANISMS, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES.
4. REPUBLIC ACT NO. 6657 – AN ACT INSTITUTING A COMPREHENSIVE AGRARIAN REFORM PROGRAM TO PROMOTE SOCIAL JUSTICE AND INDUSTRIALIZATION, PROVIDING THE MECHANISM FOR ITS IMPLEMENTATION, AND FOR OTHER PURPOSES.
5. REPUBLIC ACT NO. 9729 – AN ACT MAINSTREAMING CLIMATE CHANGE INTO GOVERNMENT POLICY FORMULATIONS, ESTABLISHING THE FRAMEWORK STRATEGY AND PROGRAM ON CLIMATE CHANGE, CREATING FOR THIS PURPOSE THE CLIMATE CHANGE COMMISSION, AND FOR OTHER PURPOSES.
6, REPUBLIC ACT NO. 10368 – AN ACT PROVIDING FOR REPARATION AND RECOGNITION OF VICTIMS OF HUMAN RIGHTS VIOLATIONS DURING THE MARCOS REGIME, DOCUMENTATION OF SAID VIOLATIONS, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES.

  1. REPUBLIC ACT NO. 9262 – AN ACT DEFINING VIOLENCE AGAINST WOMEN AND THEIR CHILDREN, PROVIDING FOR PROTECTIVE MEASURES FOR VICTIMS, PRESCRIBING PENALTIES THEREFORE, AND FOR OTHER PURPOSES.
    8. REPUBLIC ACT No. 10364 AN ACT EXPANDING REPUBLIC ACT NO. 9208, ENTITLED “AN ACT TO INSTITUTE POLICIES TO ELIMINATE TRAFFICKING IN PERSONS ESPECIALLY WOMEN AND CHILDREN, ESTABLISHING THE NECESSARY INSTITUTIONAL MECHANISMS FOR THE PROTECTION AND SUPPORT OF TRAFFICKED PERSONS, PROVIDING PENALTIES FOR ITS VIOLATIONS AND FOR OTHER PURPOSES.

But then, beyond theories and legislations, there are very important philosophical concepts that need to be further deepened and integrated in legal education. And perhaps, this is where Law Schools of Catholic Schools like the Ateneos, the Dela Salles, the UST, USC, Adamson and other Catholic universities across the country may have an edge over non-sectarian schools. There is a crying need to include a course on the Papal Social Encyclicals as these provide many ideas and thoughts on how to deal with peace and development, and now ecological issues.

Perhaps some of you might have watched Pope Francis addressed the Joint US Congress a few days ago in Washington DC. Most probably, the great percentage of those in the crowd were lawyers whom he addressed as legislators with such clout and influence not just in one country but the whole planet. That speech along with his encyclicals and public pronouncements since he became the Pontiff of the Roman Catholic Church can help to bring law students into an appreciation of concepts like the common good. I would like to believe that all of us – whether believers or not, belonging to various religious denominations – are of one mind in believing that faith/spirituality can interface with law and legal practice.

Another joke in this regard: Q: What’s the difference between a lawyer and God? A: God doesn’t think he’s a lawyer.

Some of Pope Francis’ words might ring a bell for some of you: “Underlying the principle of the common good is respect for the human person as such, endowed with basic and inalienable rights ordered to his or her integral development. It has also to do with the overall welfare of society and the development of a variety of intermediate groups, applying the principle of subsidiarity. Outstanding among those groups is the family, as the basic cell of society. Finally, the common good calls for social peace, the stability and security provided by a certain order which cannot be achieved without particular concern for distributive justice; whenever this is violated, violence always ensues. Society as a whole, and the state in particular, are obliged to defend and promote the common good.” (No. 157 of Laudato Si!).

Pope Francis uses the traditional Catholic definition of the common good: “the sum of those conditions of social life which allow social groups and their individual members relatively thorough and ready access to their own fulfillment,” (156) elaborating on how we should understand what that means in today’s world.

Reality is a far cry from the ideal and the Pope paints a vivid picture of today’s world:

In the present condition of global society, where injustices abound and growing numbers of people are deprived of basic human rights and considered expendable, the principle of the common good immediately becomes, logically and inevitably, a summons to solidarity and a preferential option for the poorest of our brothers and sisters. (158)

We cannot however, think only of ourselves and our contemporary situation; we must be aware of our debt to the future. Pope Francis reminds us that, “The notion of the common good also extends to future generations. The global economic crises have made painfully obvious the detrimental effects of disregarding our common destiny, which cannot exclude those who come after us. We can no longer speak of sustainable development apart from intergenerational solidarity. Once we start to think about the kind of world we are leaving to future generations, we look at things differently; we realize that the world is a gift which we have freely received and must share with others.” (159)

I have spoken far too long already. I end here. Before signing off, there is one more joke for the road. Q: How are an apple and a lawyer alike? A: They both look good hanging from a tree.

You can actually take that joke in two interpretations. Hanging as in being hanged like hardened criminals of yore. But you could also interpret it as hanging, or better holding on to a tree. Except that it is not a tree of punishment, but a tree of wisdom.

In my youth there was a song we sang that goes: “There’s a tree in paradise, the pilgrims call it the tree of life; all my trials Lord, soon be over!”

All of us, people of goodwill are called to cultivate trees of life. Perhaps the tree you should be planting in your law schools is a tree that provides the wisdom of the learned gurus, baylans, prophets, sage and wise persons that help to nurture societies of justice, love, harmony and peace throughout the land.

DAGHANG SALAMAT.