Notes from the Field

Taking a Hard Look at Formal and Informal Justice Systems in the Philippines

April 11, 2012

It is always exciting to be able to take a break from program implementation to think more deeply about the theories that underlie development practice on the ground. That is of course the whole point of a teaching sabbatical, and it is what we both enjoyed about the “Experts’ Roundtable on Local-Level Justice in Conflict-Affected and Fragile Regions” hosted by The Asia Foundation in San Francisco last week.

The roundtable sought to better link development theory and research in order to influence law and justice policy and practice on the ground. The legal empowerment theory that we in The Asia Foundation’s Philippines office have been following is both a goal and a process whose implementation is a bit challenging, but nonetheless, appealing to most development practitioners because of its bottom-up approach, beginning with the people. Legal empowerment for the poor has been touted as a pathway out of poverty, but what empirical basis do we have to support this assertion? In the Philippines, civil society engagement, working with community organizations, has resulted in the passage of national laws affecting the marginalized sectors in society (laws such as Urban and Development Housing Act, Comprehensive Agrarian Reform Law, Comprehensive Juvenile Justice System, Magna Carta for Women, among others), but questions remain about the implementation. Are marginalized communities any better off because of these laws? Children who have committed crimes may not be better off outside of prisons; this may have unintentionally made them the target of extra-legal killings. Farmers are economically better off today owning the land they till than when they didn’t but even so, rapid economic improvement has not been achieved.

We’ve seen legal empowerment improve people’s awareness and knowledge of their rights; increase people’s capacity and confidence to legally assert their rights through available legal procedures; and improve their access to legal services. In the implementation of agrarian reform, for instance, we found that providing legal empowerment training to beneficiaries reduced poverty and improved governance of their villages. But has awareness of rights led to greater citizen participation in civic and political affairs of the state?  Has it led to a greater demand for accountability and access to justice?

During last week’s roundtable, participants debated the relationship between the formal and informal justice systems. Our experience in the Philippines suggests that formal and informal justice systems should peacefully co-exist and that people should choose what system they go to for redress of their grievances. Indigenous justice systems, for instance, have stood the test of time in the Philippines and they have evolved with the people; they are no less legitimate than the newer formal justice system. The 1987 Philippine Constitution recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development (Article 2, Section 22). Thus, in a sense, the Philippine government recognizes and respects parallel justice systems in these regions. Moreover, the Barangay Justice System (BJS), a mix between Filipino traditional cultural traditions and modern democratic principles, has inspired other Asian countries to model local-level dispute resolution systems on the Barangay system. Our own research has shown that citizens value the choice that this dual system allows – and is satisfying for parties seeking resolution of their cases.

In the late 1990s, the Philippine Supreme Court attempted to bring the BJS under its purview, with the idea that the formal courts could better provide “justice” to the people. This view was formed in part because many cases successfully resolved by the BJS are in fact invisible to courts, which receive only the cases that failed to reach settlement at the BJS level. In the end, the move was quashed due to the outcry from local government officials and public fears that, like the court system, the BJS would become inaccessible, alien, and costly if managed by the Supreme Court. To date, the BJS has remained under the supervision of the local government units.

At some point during the roundtable the discussion turned to a fundamental question:  “Whose problems are we actually solving when dealing with development issues surrounding conflict, security, and governance?” An examination of the obvious answer – those at the community level – in turn raised the question about norms of development practitioners vis-à-vis the citizens in developing countries. For instance, informal systems of justice often discriminate in various ways against women, while the development community certainly has a consensus on the necessity for gender equality. For all the reluctance to impose outside norms on communities, in this case, considerable work has been done to promote more gender equity in informal systems of justice. But raising questions like these is necessary to promote sensitive work in conflict-affected areas.

This is the twelfth posting in the series, “A Representative Professor,” a weekly series during a teaching sabbatical at Johns Hopkins University School of Advanced International Studies.

Carolyn Mercado directs The Asia Foundation’s Law and Human Rights program in the Philippines and Steven Rood is the Foundation’s country representative in the Philippines. They can be reached at cmercado@asiafound.org and srood@asiafound.org, respectively. The views and opinions expressed here are those of the individual authors and not those of The Asia Foundation.

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