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D21 Human Rights Lawyering: A Conversation with Attorney Romeo Capulong
Attorney “Romy” Capulong was a co-founder and for many years Director of the Public Interest Law Center, Manila, Republic of the Philippines. He also was a founder of the National Union of Peoples’ Lawyers, Philippines; and Ad Litem Judge for the International Criminal Court for the Former Yugoslavia.
“Romy” Capulong died in September, 2012.
This conversation took place at the office of the Public Interest Law Center, Manila, Republic of the Philippines. (PILC), August 2008.
GB – I would like to get the benefit of your long experience in the law to get a clearer understanding of progressive lawyering in the Philippines.
RC – To discuss progressive lawyering properly we must always keep in mind the concrete conditions in the specific time and in the specific country.
GB – And we must consider the cultural traditions in and outside the legal system, and as they interact?
RC – Yes, those traditions are both important. While we have a long history of progressive lawyering of a sort, what we have today is the resultant, the off-spring of that historical experience. First, the specific experience of the past – and how it is understood; and second, the response of the people to the specific conditions they confront in the present.
GB – There seem to be a number of different modes of progressive lawyering arising from that experience.
RC – Yes. There are various terms which we use which suggest different understandings, or emphases e.g. Progressive lawyering, Alternative lawyering, Peoples’ lawyering, Human Rights lawyering, Legal Aid lawyering, which can be public (e.g. the Public Attorney’s Office under the Department of Justice) or pro bono from law firms, or community organizations.
GB – And of course Public Interest lawyering.
RC – Yes, that is our rubric. We started about 20 years ago, institutionalizing it in the PILC. In my view all of the types of lawyering we have mentioned are subsumed under the broad concept of lawyering in the public interest. The modus operandi is of course differentiated across a broad spectrum.
GB – Could you say something here about the traditional practice of law in this country?
RC – There could be a lot said! But let me make it succinct without comprehensively covering the subject. When we talk of traditional or mainstream legal practice we are aware of several things, from logic, and from our experience.
First, as members of a profession they are in a position to make very significant amounts of money. Therefore, it is not surprising in an individualistic and competitive economic system such as exists now, that they are driven by money.
Second, like other professionals, indeed people with education generally, they are mis-educated. They are not taught that they have a duty, a calling, especially in view of their important position in the social-political structure, to use their knowledge and skills to help others in a common struggle for social justice.
GB – I suppose that for the most part, they have little understanding of – and less interest in – such a struggle, nor how a lawyer might contribute.
RC – In this country, perhaps unlike Australia or some other advanced capitalist country, even the privileged class, including the profession of law, cannot be unaware of the very widespread social injustice which exists. They also cannot be unaware of the continuing struggle to rectify the injustices. This is so precisely because important parts of the struggle are waged in the courts and by lawyers, singly or acting in concert with others i.e. legal and other activists, to bring about change in the conditions which create injustice.
GB – So in such a context, some lawyers, or intending lawyers, come to a point where they must decide what is the proper direction in which to take their career, their life.
RC – Some, a small minority, do make a choice to put their expertise to good use in the struggle.
GB – I suspect there are an increasing number here making that choice. The worsening conditions for the mass of people, and the overt resistance to a corrupt regime would likely appeal to some of the idealistic young law students and graduates of your many law schools. And there seem to be institutional structures for them to work within.
Even in a country like Australia, there are significant social injustices which bring an increasing number of young lawyers into what we might generally call “community lawyering.” When I arrived in that country in late 1974 there was a very small sector of such law work. And there was a great deal of burnout, as there were so few and so much to be done. It was almost impossible to make a career of it. But today there are about 250 community legal centers and a number of other modes of “community lawyering,” so there is now a career structure and more are making the choice to go in that direction.
RC – Here there is a great deal of public interest lawyering, and there certainly are many more young people who have become involved than when I began legal practice years ago. This is, of course, the result of the accumulated experience of our people and the present socio-political, economic conditions in which our youth are coming to maturity. Of course it must be said that there are different degrees of commitment to the struggle of the people. This is always true, of course. If you ask for 100% of their time lawyering in that way, it would be a tiny minority. At this center, that is what we do and have done since it was established in 1986.
GB – How would you sum up the work of the Center?
RC – Our fundamental task is, through our legal work, to raise the awareness of the people, especially the poor. Which of course is about 70% of our nearly 90 million population!
GB – Awareness of what in particular?
RC – Of the nature of the system we live in. We might say, the structures we are enclosed in.
GB – So that there is a political awareness that injustice is not just due to some incompetent or even corrupt individuals.
RC – Yes, and that is a difficult task here where the media makes a lot of noise about one scandal after another. There are big profits to be made in that. But we try to show the systemic nature of the corruption which is so pervasive in our society. And, taking another current issue, we reveal and explain the increasing militarization of our government institutions and programs.
GB – Yes, I have looked at that a little. Mrs Arroyo is surrounded by military and ex-military personnel, and many important positions and programs are under the direction of military types.
RC – We try to show the people that the present conditions, in which exploitation is massive – the rich growing richer, the poor poorer – calls forth repression. And that leads to many of the incidents such as Extra Judicial Killings and Disappearances, in which we are asked to lead the legal challenge to what are largely government operations. Such anti-people attacks are mainly aimed at those who are active in trying to organize and protect the people from extensive violation of their rights as workers and as citizens.
GB – And in so doing you also will be exposing the injustices which exist in, or flow from, the legal sub-system?
RC – Yes, the legal system is tilted against the poor and exploited. But that does not mean we do not try to win victories in legal struggles. People learn from defeats, as it can lead to a deeper understanding of the system, including government and judiciary, when justice is refused in the face of a clear case which demands it.
But they also learn from victories!
GB – In what way?
RC – Because the victories do not come easily, and normally come from popular mobilization.
GB – As Marx demonstrated in his discussion of the struggles over the Factory Acts which brought some reforms to the conditions of English workers. He was quite positive about such mobilization.
RC – In our struggles, we emphasize the importance of popular mobilization. This is crucial, especially in the circumstances here where not only are we fighting on the terrain of the state, but our opponents do not hesitate to deploy intimidation, harassment and even deadly force when challenged.
We work closely with the people, normally groups, and this provides an opportunity for us to explain the nature of the law, its contradictory and problematic nature. And of course, we leave them no illusions about the general reflection in the law of society’s dominant interests.
GB – I have read some of your speeches to various groups in which you make these points. Even to the Integrated Bar of the Philippines! Which suggests that the contradictions in law run deeply throughout the legal system here, including within the legal profession.
I also noted in a seminar on law and social justice at the College of Law at the University of the Philippines, there were academics and lawyers, human rights and other social activists, and client groups from various sectors such as trade unionists, peasants and fisherfolk. It must be a very exciting, if very dangerous milieu in which to work. And rewarding.
RC – There are rewards other than financial, and our young lawyers and paralegals do find their work highly satisfying.
GB – So an important part of your work is demonstrating how popular mobilization produces the leverage within the law which occasionally makes it tilt in the direction of the people.
RC – Yes. Even under Martial Law of the Marcos regime, when the tilt was very strong against the people. Many leading lawyers were in fact detained.
GB – How did that play out?
RC – There were many lawyers, of course, who were still able to practice, and they had an important role in small, day-to-day cases in which they challenged illegalities and abuses. Often relating to detentions and brutal treatment, and were based mostly on technical issues.
GB – So Martial Law did not mean there was simply arbitrary procedures and no law?
RC – Right. Marcos was a dictator, but like most such he wanted to be seen to be acting for the good of the people, the nation. And in doing so he needed to portray his actions as being lawful. Thus he always contended that he had acted constitutionally, in the circumstances, when he proclaimed Martial Law in September 1972. In the years following there were some actions the lawyers could take, just as there were in South Africa under apartheid.
GB – The idea being that acting “under color of law” provides legitimacy to the regime, or at least allows its supporters to believe that what is being done is justified by some interest other than the self-interest of those in power.
RC – He had to give the appearance, in general, of acting legally. And of course we know that Marcos was a very good lawyer, proud of his capacity to argue cases successfully – including the case in which he was convicted for the murder of his father’s political opponent, Julio Nalundasan. He won that on appeal, arguing the case himself before the Supreme Court. Justice Jose Laurel commented “To send this young man to jail would be to deny the country a brilliant lawyer.”
Marcos was always very aware of the power of law and the idea of justice. So he played on the desire of the people for a better society in which they could receive justice. He was able to convince many of his plans for a New Society, at least for awhile.
But in the end he was found out.
GB – Were the progressive lawyers organized in those days, what was their institutional base for resistance to the regime?
RC – There was the Civil Liberties Union of the Philippines. That was the main organization. Senator Jose Diokno, one of the leading lawyers in the country, was the President. He was detained at the very beginning of martial law. Later a number of other organizations emerged.
GB – I believe the Civil Liberties Union had been formed in the 1930s, and that all through the 1930s and into the late 40s and 50s, there were progressive lawyers working to protect the masses. I believe especially on behalf of the peasants and their unions, against the landlords and the state in the aftermath of the Second World War and the transition to independence.
RC – Those were very difficult times for the progressive movements, the workers, fisherfolk and especially the peasants as they were hammered by the military, with the support of the Americans who feared a communist uprising and the re-constitution of Philippine society. There also were terrible actions against the people by the private armies of the landlords.
GB – Perhaps we could look at the institutional basis for public interest lawyering in the contemporary period which seems in some ways, not all that different from the days of Marcos.
RC – The current regime has a bad record for human rights abuses, and the “tilt” against the ordinary people still exists. On the other hand, there are well organized social movements with many activists who support the people, and that includes a vibrant public interest legal sector. The first place to start in considering the lawyers’ role in the Philippines is the Constitution. It provides that no one is to be denied access to the courts due to lack of funds.
This has established what we might call a cultural tone which influences ideas about legal representation. There is a broad mandate that the poor must have access to the courts in a meaningful way. Of course this requires legal assistance. Thus, in normal circumstances, there is in effect, a requirement for the state to provide institutional and programmatic responses.
The government provides a Public Attorney’s Office under the Department of Justice. And the private sector has responded in a variety of ways, including pro bono work by both large and small firms and individual lawyers.
There is a large paralegal sector which complements these initiatives, as well as those in the public but non-governmental sector where their role is exceedingly important.
In that public sector there are numerous initiatives, including this Center, the National Union of Peoples’ Lawyers, FLAG, MABINI, University public interest lawyering centers. These take different forms, as do a number of others, either permanent or ad hoc, which deal with specific issues.
And of course, in the various sectoral organizations, for example, the unions of workers (government and private), peasants and fisherfolk, there are lawyers working on specific issues, but also joining in broader work which effects all, or several, sectors.
GB – That is a broad spectrum. In some countries it might be considered, in regard to much of what you have described, just basic legal aid, without any significant political dimension. What is different in the Philippines?
RC – For us, public interest lawyering means that the central driving force is being part of the overall political struggle. That is the ultimate contribution we make. In the practice of our profession we try to find the appropriate blend of our type of lawyering and the overall political strategy. But I must stress that it is complicated by our commitment to the basic principle: to ensure to the extent possible within the legal system, that justice is rendered to our clients.
GB – I remember the 1955 anti-communist and racist Hollywood film, TRIAL. with Arthur Kennedy as a duplicitous communist lawyer, where the opposite scenario was presented. It was, of course, a reactionary attack on the progressive lawyers in the National Lawyers Guild, and others, who were defending progressive causes against state repression. The victim in the film, the client and his mother, were portrayed as being used to increase support for the larger political “Cause.” It was a quite insidious film.
RC – That would be a Hollywood plot, and of course that was the McCarthyite period when progressives were “black-listed” and could not work in the film industry.
But such a scenario would not happen here. In each case, the political struggle must be a subordinate priority. Clients cannot be sacrificed, used as a tool for the “greater struggle.” This would be immoral. Totally unacceptable. I do not know the circumstances in America to which the film may be referring, but I would say it is open to serious doubt, a propaganda effort. It certainly would not be a tactic used in our work. And I might add, having worked as a lawyer in New York for many years, I saw nothing of that amongst the progressive lawyers I met.
Here, of course, there has been so much injustice in the courts, we do not have to manufacture “lost causes” to raise the consciousness of the people.
GB – Could we talk a bit about the work of the Public Interest Law Center?
RC – The two main areas of our work are, first, the violation of civil and political rights and, second, violation of social, economic and cultural rights. We have a tri-partite approach: litigation; advocacy work outside the courts; and community education, working mostly through groups such as peasant, worker and fisherfolk unions.
GB – Is there a speciality for which the Center is known?
RC – Yes, human rights advocacy.
GB – How is this all financed?
RC – We raise our own financial resources. We are self-reliant. We do not accept money from outside sources, i.e. foundations.
GB – I know that in the USA this kind of work is sometimes funded by law cases, such as a tort case, where the contingency fee could be quite large.
RC – We have that here too. We have in fact taken on some tort cases which, through the contingency fee system, have resulted in significant funding for the Center.
GB – Could you say something about the background to public interest lawyering in the Philippines. You must have seen a good bit of the development.
RC – Well, I was doing voluntary work with the Free Legal Assistance Group (FLAG) in the 1970s, and I was one of the founders of the PILC.
But we must remember that legal assistance to the poor the exploited and oppressed has a very long history in this country.
GB – Yes, I have been looking at the early 20th century. There were lawyers doing cases for the poor, for people who got caught up in the Philippine American War, even American soldiers who were on the wrong side of the occupying American regime. Ironically, one of those lawyers was Eber C. Smith, an American who seems to have had a general law practice located in Intramuros, Manila.
In doing some research on the resistance to the Americans, I came across the case of Macario Sakay, the great political/military leader who was induced by the Americans to surrender in 1906. He was deceived by the Americans who offered him, and his followers, immunity. But when these brave nationalists were disarmed, they were arrested, tried and Sakay and his chief lieutenants were executed. It was, of course, a show trial. They did not intend to let him off. One of his lawyers was Ramon Diokno, who I believe was the father of Senator Jose Diokno, whom you mentioned above.
RC – There is indeed a long tradition, not surprising in view of the repression our people have suffered for centuries under colonial forces, secular and other. It is true that many of our leaders in the Revolution against the Spaniards and the war against the Americans had studied law, and some had practiced it, if only briefly or intermittently. Mabini, of course is one who stands out.
GB – And of course there was the context: the Americans established a form of liberal, bourgeois administration, although very bureaucratic. And of course very much under their control, e.g. the Supreme Court had a majority of Americans sitting on it for years. Thus they were trying to act “under color of law” so that the Filipino elite would support them and assist in running the country. It seems there was a good deal of legal activity – what we might call “politico-legal” activity – as the two “partners” co-operated but also sparred to gain their own advantage. Much of this sparring was through the legal system.
RC – The American “rule of law” colonial state and the Filipino struggle for justice were in a sense conjoined as you suggest; and for our purposes here, it is important to note that one of the provisions in the 1935 Constitution under which we would ultimately get formal Independence, states that “free access to the courts shall not be denied to any person by reasons of poverty.” I suppose that could be unique in the history of the world’s constitutions. It certainly was early.
GB – Yes, even in the USA this was not seen as a right until the Supreme Court decided the great case, Gideon v. Wainwright in 1963, about which Anthony Lewis wrote his wonderful book, Gideon’s Trumpet.
To see it in the colonial Constitution is striking, and perhaps symbolic of the mode of colonial rule adopted by the US. Again, it shows the importance of understanding the legal system as a sub-system of the larger governance system; for we should remember that there is the other, dark side of American dominance of the Philippines: from the dreadful, brutal war of 1899 onwards, to their interference in the following decadeswith peasant struggles, the brutal repression of the anti-Japanese guerrillas (HUKs) at the end of WW II, and the continuing interference in Philippine political and ecomomic affairs since your Independence in 1946 to the present time.
RC – That provision has remained in all subsequent Constitutions.
GB – Yes, I noted that it was in the Marcos imposed Constitution of 1973. I was surprised to find in that document the establishment of the Office of the Ombudsman as well as the Sandiganbayan, the special anti-graft court.
RC – Well, Marcos wanted to be seen as creating the institutions for a “New Society,” a law-based, reformed society. And he was under pressure because of the increasing dissatisfaction with his regime and the way in which he had extended his term in office.
We can see here some similarities to the present situation in our country. But, of course, these were always seen as tools to be used for his purposes, in his struggles with those who were not his allies. They were not intended to “clean out” graft, corruption or governmental abuses.
GB – I suppose his concept of “authoritarian democracy” gives us a better understanding, now, of what his “reforms” were really intended to achieve.
RC – Of course we had had a lot of experience with authoritarian and repressive tendencies before – and since! – Marcos as you point out. And, in response we have had lawyers, what we used to call civil rights lawyers, who challenged the state and spoke for the people.
We mentioned the Civil Liberties Union of the Philippines, back in the 1930s, which continued into the post-War period. Jose Diokno was one of its leaders. There were others, e.g. Claro Recto and Lorenzo Tanada, all Senators, strong nationalists who fought on the legal and political fronts, against not only the abuses of the state,but also American neo-colonial policies and actions.
But the peak of progressive lawyering was in the Marcos period, especially after the martial law declaration in September 1972. The repression was immediate and comprehensive. Human rights violations, physical and other abuses, escalated rapidly: killings, “disappearances,” mass detentions merely on suspicion, or to intimidate the victims and others and to keep potential leaders away from their followers.
GB – How did lawyers respond?
RC – As you can imagine, it was quite a shock to people to have the military unleashed on the people and their organizations. For some time they were not well organized. This applied to most of the bourgeois leadership, any who were in the broad Opposition. And, of course, lawyers’ leaders, such as Diokno, were in detention.
Marcos initially justified Martial Law by declaring that there was an emergency situation. He had previously suspended the writ of habeas corpus, and now went another step to dictatorial rule, citing the threat offered by communist rebellion and the war with Moro forces in Mindanao.
But there were throughout the country, many unsung heroes, lawyers who worked with the poor – peasants and workers – in trying to protect their lives, their rights and their livelihood..
GB – And there must have been many cases emerging regarding “subversive” elements and organizations.
RC – There were many cases involving suspected revolutionaries, largely of the Communist Party of the Philippines, and of course those accused of supporting them in one way or another. Remember, through his Presidential Decrees, Marcos had outlawed most freedoms: of the media, of the people to organize. Most organizations were proscribed. In those circumstances there were many ways of violating the law!
GB – So it was difficult to practice progressive lawyering, or even to organize lawyers to do it.
RC – It was, but gradually things got going. The Association of Major Religious Superiors of the Philippines (AMRSP) set up the Task Force Detainees in 1974. AMRSP had been established in 1955 and were influenced by liberation theology. They were close to the progressive forces in the Opposition. They investigated reports of torture and illegal detention, abuses of various kinds.
GB – I have seen their work and references to it as “the leading watchdog on arbitrary repression in the country, heavily influencing Amnesty International’s damning 1977 report” on the conditions under Martial Law. (Scott Thompson’s book, The Philippines in Crisis (1992).
RC – When he was released from detention in 1974, Senator Diokno founded a new organization, Free Legal Assistance group (FLAG) which was to work with the AMRSP on these issues. The CLUP was given new life, with Diokno also in the leadership, and they produced the stinging critique of the Marcos regime and its policies in “The State of the Nation After Three Years of Martial Law” (1975). That was at the level of the public, national ideological struggle.
At the level where ordinary people experienced the regime of martial law, there were countless now nameless, faceless lawyers who continued to work for their communities all over the country. They did what they could in different small tactics and techniques to fight the repression of the Marcos regime. And all of this has contributed to the cumulative experience of Filipino peoples’ lawyers.
GB – And today, how is that experience manifested, applied?
RC – For example, we have the Public Attorney’s Office, with perhaps 1500 lawyers. They are public attorneys for the people, the common man/woman. They work in a great tradition, one of which they are aware. If you were to talk to them, you would find they are progressive, they are sympathetic to our struggle, for the most part. Even if they are not when they start out, it is inevitable that at least there is a strong chance they will become progressive in the job. This is because in our country, despite the mis-education of our people, the reality is far from the ideology. There is tremendous injustice, inequality and rampant exploitation. It is the common people who suffer. And these public lawyers come to understand that their work is a part of the general struggle for social justice. If achieved, that would be a “New Society” worth having!
GB – I am interested to know how you see the integration of progressive lawyering into the larger context of struggles for social justice. In a sense, I am trying to understand what we might call the Filipino Model of peoples’ lawyering.
RC – First, there must be integration. You cannot be an effective progressive lawyer unless you have a good working relationship with the larger progressive movement. We need to take cases for organized groups. These groups are, of course, organized by forces in political struggle. Except for the cases we take to derive funding, as mentioned above, we do not take individual cases. We refer them to law firms which we know are specialists and, naturally, have a record of being pro-people, with integrity.
GB – There is a lot of discussion in the country about corruption in the legal system, in the legal profession and in the courts.
RC – Yes, it is a big problem, though nothing new! Judges are bribed. And other government officials, both in and out of the legal arena. And it seems often it is lawyers who are involved in the bribing, as well as accepting the bribes. For a whole range of problems in the judicial sector, the common solution is to buy your way out. It is a known, and even proven, fact of life here.
GB – Of course we know that it is not just a problem here. It is a problem in most Third World countries; but perhaps in different, less blatant ways, it is also a problem in the advanced capitalist countries.
RC – With regard to integration, we should mention the trade union movement. As you know we have large, central institutions in the different sectors, e.g. for workers, the May First Movement, or KMU; the KMP for peasants; the Pamalakaya for fisherfolk. In these centers there are small legal units which deal with the issues affecting unions and their members. That is the more day-to-day conflicts with employers, police, and other governmental authorities.
However, for the more general cases involving human rights of the people generally, they will refer cases to this Center, and other organizations such as the NUPL. And of course the Center and the NUPL, and others, have a wide range of lawyers to whom referrals can be made if we need to spread the load.
Each center, certainly this one, acts as the legal arm of a number of social movement organizations. Thus there would be a wide range of actions in which we would be taking a part. We might, for example, be involved with a number of political groups in challenging the Constitutionality of the Visiting Forces Agreement, at the same time handling cases involving the families of activists who have been killed or disappeared or abused, tortured, by the military, including the police. These sorts of cases would be brought to us by an organization such as KARAPATAN, or one of the trade union centers. About half of the extra-judicial killings and disappearances involve union activists.
GB – And you use different methods, I believe.
RC – Yes, as I mentioned above, we have a three-pronged approach. We may litigate, especially constitutional issues, or we may seek relief, now using the new measures brought in by our progressive Chief Justice, Reynato Puno, that is the writ of amparo and the writ of habeas data. Or we may engage in advocacy, by submitting research reports we have prepared, or commissioned, on human rights violations; or we may even secure independent reports from outside, even international bodies. We also do various projects for community legal education, e.g. the Conference you referred to above.
GB – That was a marvelous experience for me, and I am sure for hundreds of others who had the opportunity to attend. I noted that many who came were from the organizations we have been discussing, and that they presented papers on the legal issues confronting them. Even some very small children were there with their mothers. It was a very convivial atmosphere with a strong sense of solidarity.
RC – You will have heard our Chief Justice discussing his new program of Justice on Wheels, the idea being to get people out of prisons by taking the courts to the institutions where they are confined in order to cut the delays in our creaking system. This has benefited thousands already. To have that kind of leadership from the top of the judicial tree is refreshing!
GB – I did find that impressive. And I also was surprised, but quite pleased, to hear him speak just after you had made your presentation which was a thorough critique of the injustice which the Filipinos suffer daily under the unequal political system in which they live, often at the hands of the legal system. He said, “I agree with everything the previous speaker just said.” I thought that was remarkably frank, and highly unlikely to be heard from a Chief Justice in Australia or the USA!
RC – He has been exceptional. Of course he is not a favorite of the incumbent President. But he is surrounded by her appointees and has increasingly been consigned to the minority in very important cases in the past few years.
GB – As a legal academic I am interested in the Law Schools here. There seems to be a rich tradition of University education, going way back to the 16th century. Law teaching in this country, however, came later. It seems to have emerged in the nineteenth century. As in most countries, and I suppose all colonies, it was an education of the elite. How much have the Law Schools contributed to public interest lawyering?
RC – A good question. The curricula are very traditional. As you know, Filipino graduates must pass the bar exam in order to practice law. It is on the American model. Except that here we do not have exams on a state or province level. There is one set of exams, which must be taken in Manila. It is very difficult to pass. Many do not.
GB – I believe it is very expensive, since the exam is given on four successive weekends during September. That means a lot of extra expense, especially if you are from the provinces, and a reduced income in that month.
RC – Indeed. And extra expense, and/or reduced income during the months leading up to September as the students prepare. The bar then is a very important determinant of who gets to practice law, but also what understanding of law the successful candidates will likely have. It is based on the traditional subjects and ideology of the law. So there is pressure on the Universities and the Law Schools to prepare their students for that exam. High priority must be put on the subjects which will be examined by the Bar. The result is a dearth of public interest law subjects. Further, most legal academics here are also practitioners. Some of these would be engaged in public interest lawyering, but I think not many. But they will be expected to teach what the students will be examined on.
GB – I have spoken to a Dean of a law school outside Manila. He was a practitioner. He did not seem remotely interested in discussing the teaching I was doing after I told him my course was The Common Law Tradition, and that I had for years taught the History and Philosophy of Law!
Of course there would be Deans in many law schools around the world who might react in the same way! But I have noticed that here in Manila, outside too, there are some positive developments, e.g. visiting scholars teaching Human Rights law, professors directing research on current issues such as constitutional, human rights issues, and centers for community legal assistance and research.
RC – Yes there are some encouraging developments. Still marginal to the curriculum perhaps, but an important part of the milieu of the law program.
GB – The Bar exam system does present problems. In Australia we have the English system where the profession makes known what “areas” of law we must teach, and reviews the law programmes periodically,
But there is no general exam like the bar exam after graduation. Thus we have more freedom to teach what we want, particularly through a large number of elective units. Another factor in our favor is that we teach double-degrees, so that a law graduate takes a law degree along with another degree in a five year program.
In theory then, I guess I would say that educational ideals are more easily mustered against strictly professional goals in our legal education. Nevertheless, very substantial battles have had to be fought against the pressures towards narrow, strictly professional education as opposed to a “liberal” or “humanities” educational approach. While the Critical legal Studies movement made some headway in a number of law schools, including my own, Macquarie University, this was achieved only after considerable struggle.
RC – That is interesting – the struggle at the workplace. There is no getting away from it.
GB – Of course, what I have come to realize is that the curriculum is only a small part of the influences on law students. It is the context in which the student studies, and in which the student emerges into the world of legal practice. It is the material experiences which allow the ideas and traditions to be weighed up, re-considered and adopted in a synthesis of ideology, knowledge and post-study practice.
Thus, in the case of Australia, the development of the Critical Legal Studies and successor movements in the 1970s and after, together with the blossoming of the many progressive social movements and the consciousness of human rights issues – including the environment – has meant that Australian Law Schools offer a great range of subjects, including public interest lawyering (with practical components, e.g. getting credit towards the degree by working with one of many community legal centers, or the Public Interest Law Centre (Sydney).
What is particularly important is that the student now has a career path in which to continue in public interest lawyering. But, one thing I have noticed, there is a limit to the political commitment, indeed the critical understanding of the capitalist system in which they work. So that limit means that lawyering in the public interest in the Australian context is very much limited by the general conditions in which people, lawyers and other, live and work.
The conditions are not sufficiently radical or extreme, to produce the revolutionary lawyers who I meet in significant numbers in the Philippines. Thus emphasizing the point you initially made about the concrete conditions being fundamental in developing the consciousness and commitment of peoples’ lawyers.
RC – That is interesting. It seems we have a long way to go in our law schools, by comparison. But our socio-political conditions are such that our young law graduates develop and maintain a high level of commitment to the larger struggle for social justice.
GB – Yes, we must look to the specific conditions in each society and try to remove those barriers to critical understanding and political commitment which is vital for real peoples’ lawyering. I guess we could say that in Australia the Law School environment, including the curriculum, can be important in getting students on the right track, and they can now find in the community centers a career which allows them to develop their commitment and understanding.
However, two other factors must be considered: first, the present lack of the strong radical critique of capitalism which spawned those critical movements of the 1970s; an international dimension here might be mentioned – the critique which developed in American Universities in the 1960s as a result of the confluence of the Civil Rights movement and the anti-Viet Nam War struggle. Second, not unrelated, the lack of a strong, mass-based Left which confronts the state – be it “conservative” or “social democratic” – and the social injustices which it aids in re-producing.
Of course we do not have anything like the blatant and severe repression and exploitation which confront the progressive lawyers of the Philippines. Thus they have an understanding and commitment missing in countries such as Australia. There is a harder, even revolutionary edge to it; and with three dozen lawyers assassinated in the past decade, a courageous dimension our lawyers have not had to experience.
That I and other outsiders have been so impressed by what is being done here by the peoples’ lawyers is, of course, a measure also of the anti-people policies of successive governments, including the current regime – perhaps the worst – of Gloria Macapagal Arroyo.
RC – There is no doubt our path has been a bloody one, and the lawyers have contributed much in the on-going struggle. Happily, we seem able to continue to fill our ranks with young people who are willing to sacrifice for the cause they believe in. Part of the reason for that brings us back to the issue of integration. There is a strong connectivity here, across a community of progressives. Their life is spent working with others,, as part of a broad, collective community striving together to make a better world for all.
GB – I recognize what you are saying in the wonderful spirit I have found amongst the progressive lawyers and the others with whom they are interconnected in the various social movements here. It seems a very dense civil society, and the lack of “western” individualism is noticeable, and refreshing.
Which makes my next question seem a bit strange perhaps, but I think personal stories are important in understanding the dynamics of the development of the commitment to working for others as a public interest lawyer. We can think of it as the dialectics of personal and political development!
RC – I grew up in Nueva Ecija, a province of central Luzon. I went to the University of the Philippines to do law, and came out in 1957. At that time I was, I suppose, a typical law graduate. That is I took up the traditional practice of law. Although I have to say that in land cases, I had a preference for the tenants. My father was a tenant farmer and I know how he struggled.
GB – As it happens I am doing some research on conditions in Nueva Ecija, back in the time of the Philippine American War, and through the 1930s and into the early 50s, so I have some idea how repressive and exploitative the landlords were in dealing with and controlling the peasants and their organizations throughout Central Luzon. I think it is not a coincidence that in such areas the masses have supported rebellions over the years. Central Luzon is well known, and much written about, for its revolutionary tradition. And progressive lawyers, I believe.
RC – Yes, all true, but of course we must come back to the specific circumstances, the individual experiences. In my case, it means that my class background, and my university experience were not as one, they were shall we say, not in alignment. So to speak, my left foot was with the progressive sector, while my right foot was with the establishment, the elite. This contradiction, and its effect upon my understanding, my political consciousness, remained. As we know from studies, this leads to a very ambiguous view of one’s position in the social structure, with potential resolution in several directions.
But in my early career, into the 1960s, the situation was relatively calm. So for me it was a long road. Though I was attracted to radical ideas and activism, it can take time for this to be internalized. For it to become subjective rather than objective, external, at arms-length.
GB – It is interesting for me, as I was in the US Navy, at Subic Bay in 1956 and 1958, and traveled a bit, up to Baguio and even down to Cebu City. The Philippines seemed a wonderful, peaceful country to us.
RC – The defeat of the HUKS and the ferocious repression of the peasant movements had left the country, the peasants, quiescent. For some years in the late 50s and into the 60s, the country was somewhat de-politicized. The calm before the storm! But I was to feel the storm in due course.
In 1973 I was elected from my province to be a delegate to the Constitutional Convention. This was originally an idea of the Opposition, but Marcos could see advantage to himself. As today, there was much genuine talk of bringing about changes to the Constitution, then the 1935 Constitution, the product of the American colonial experience.
Marcos, like supporters of President Gloria Macapagal Arroyo today, saw it as a way to avoid a likely election defeat in 1973 by extending his term under a new Constitutional arrangement. His political future was in doubt after Opposition forces gained some unity and emerged stronger than ever from the 1971 legislative elections. Of course, after the Plaza Miranda bombing in August 1971, he had suspended habeas corpus, and then in September 1972 he declared martial law, and began to rule by decree.
GB – What had happened to you, if anything, just after Martial law was implemented?
RC – Upon declaration of Martial law, I went into hiding. My office was raided. I was on their list as I was known to belong to a “Progressive Bloc.” As things worked out, my union colleagues arranged for me to be placed under “house arrest” rather than into detention. Altogether I was raided 3 times.
GB – So what was your response to this?
RC – I finally decided to flee. In 1975 I went to New York City and was admitted to the Bar there. I had my family with me. I did some teaching at City University of New York Law School, which gave priority to students from poor backgrounds who would not be able to afford the other law schools. And I was involved in expatriate Filipino activity, anti-Marcos work. As late as 1979, I was still associated with the traditional politicians – TRAPOS we call them – one being Ninoy Aquino. In some ways he was the leader of the traditional parliamentary Opposition, and certainly a TRAPO. But things were quite complicated, in a state of flux. He was in talks with almost everyone, Marcos’ people, the other TRAPOS, the Church and, it is said, the Communist Party of the Philippines.
GB – But you were radicalized at some point. How did that happen?
RC – At that time, because of the Viet Nam war, and the Civil Rights movement preceding it, New York City was politically alive. A part of this was the politicized Filipino expatriate network. It was a buzz living there. At first I did a lot of walking around, and found there was a rich supply of cheap Left literature which I immersed myself in. And I interacted with people of various Left tendencies, Marxists and others. That is when I really started to connect with the anti-Marxist support groups.
Like many before me in such circumstances, I realized I had a choice to make. You have to lead a meaningful life. It was a gradual development. I had to pass a big barrier. But I did. I decided I would devote my lawyering to the progressive cause. After nearly a dozen years in New York, I returned to the Philippines to help in the peoples’ struggle for social justice.
GB – And the PILC emerged then?
RC – We set up the PILC in 1986, and I have been the Director and lead attorney since that time.
GB – How would you sum up that experience?
RC – It has to be looked at realistically. We have had, even after the end of the Marcos regime, rather limited judicial space here. Our task, along with others we have mentioned, e.g. the NUPL, to broaden that space. I believe that under the present political-economic system this task is never completed, but must be continuously struggled for. Those are the concrete conditions in which we are forced to operate, and we must study and analyze them constantly and without false understandings based in subjective “hopes.”
I believe some progress has been made. We have had some victories in the Supreme Court. We work hard to achieve those victories, against rich, powerful and sometimes even threatening opposition. It is therefore uplifting. It is important for the young lawyers, and others, who have made the choice to head in our direction rather than to follow the money-trail of the traditional professional. It is tough going, especially when there are substantial resources, legal and other, arrayed against us. Tilt does exist in our legal system.
GB – And what of the defeats? The progressive practice of law is, sad to say, littered with defeats.
RC – But even the defeats have a positive side. For example, when Marcos was challenged in the courts e.g. about the legitimacy of his martial law regime, even though the Supreme Court found, narrowly and rather ambiguously, in his favor, it was a sign that he was not going to be able to do entirely as he pleased, that it was in that sense a warning shot fired across the bow.
Another positive effect is at the level of political understanding, which is important for anti-hegemonic work in the future. Defeats enable our clients to more fully appreciate the nature of the system under which they live. Thereafter they have no, or fewer, illusions about the institutions which govern them. Thus those institutions have less sweeping legitimacy, and this made it more difficult for the dictator to mobilize the people behind his quest for hegemony.
GB – They have learned what an American Marxist lawyer, Prof. Wythe Holt refers to as systemic “tilt” in the legal system, and which certainly exists pervasively in such an unequal society as is the Philippines..
RC – Of course, the angle of “tilt” is not fixed. Sometimes we can even push the balance over in the direction of the poor, the exploited and the oppressed.
GB – That is what we must continue to fight for as peoples’ lawyers. I must thank you for your commitment to that cause over many years, and wish you and your lawyering comrades the best in the coming struggles.
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A Perspective on Human Rights Lawyering in the Philippines:
A Conversation with Attorney Romeo Capulong
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Professor Gill H. Boehringer
A Conversation with Attorney Romeo Capulong
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Professor Gill H. Boehringer
Attorney “Romy” Capulong was a co-founder and for many years Director of the Public Interest Law Center, Manila, Republic of the Philippines. He also was a founder of the National Union of Peoples’ Lawyers, Philippines; and Ad Litem Judge for the International Criminal Court for the Former Yugoslavia.
“Romy” Capulong died in September, 2012.
This conversation took place at the office of the Public Interest Law Center, Manila, Republic of the Philippines. (PILC), August 2008.
GB – I would like to get the benefit of your long experience in the law to get a clearer understanding of progressive lawyering in the Philippines.
RC – To discuss progressive lawyering properly we must always keep in mind the concrete conditions in the specific time and in the specific country.
GB – And we must consider the cultural traditions in and outside the legal system, and as they interact?
RC – Yes, those traditions are both important. While we have a long history of progressive lawyering of a sort, what we have today is the resultant, the off-spring of that historical experience. First, the specific experience of the past – and how it is understood; and second, the response of the people to the specific conditions they confront in the present.
GB – There seem to be a number of different modes of progressive lawyering arising from that experience.
RC – Yes. There are various terms which we use which suggest different understandings, or emphases e.g. Progressive lawyering, Alternative lawyering, Peoples’ lawyering, Human Rights lawyering, Legal Aid lawyering, which can be public (e.g. the Public Attorney’s Office under the Department of Justice) or pro bono from law firms, or community organizations.
GB – And of course Public Interest lawyering.
RC – Yes, that is our rubric. We started about 20 years ago, institutionalizing it in the PILC. In my view all of the types of lawyering we have mentioned are subsumed under the broad concept of lawyering in the public interest. The modus operandi is of course differentiated across a broad spectrum.
GB – Could you say something here about the traditional practice of law in this country?
RC – There could be a lot said! But let me make it succinct without comprehensively covering the subject. When we talk of traditional or mainstream legal practice we are aware of several things, from logic, and from our experience.
First, as members of a profession they are in a position to make very significant amounts of money. Therefore, it is not surprising in an individualistic and competitive economic system such as exists now, that they are driven by money.
Second, like other professionals, indeed people with education generally, they are mis-educated. They are not taught that they have a duty, a calling, especially in view of their important position in the social-political structure, to use their knowledge and skills to help others in a common struggle for social justice.
GB – I suppose that for the most part, they have little understanding of – and less interest in – such a struggle, nor how a lawyer might contribute.
RC – In this country, perhaps unlike Australia or some other advanced capitalist country, even the privileged class, including the profession of law, cannot be unaware of the very widespread social injustice which exists. They also cannot be unaware of the continuing struggle to rectify the injustices. This is so precisely because important parts of the struggle are waged in the courts and by lawyers, singly or acting in concert with others i.e. legal and other activists, to bring about change in the conditions which create injustice.
GB – So in such a context, some lawyers, or intending lawyers, come to a point where they must decide what is the proper direction in which to take their career, their life.
RC – Some, a small minority, do make a choice to put their expertise to good use in the struggle.
GB – I suspect there are an increasing number here making that choice. The worsening conditions for the mass of people, and the overt resistance to a corrupt regime would likely appeal to some of the idealistic young law students and graduates of your many law schools. And there seem to be institutional structures for them to work within.
Even in a country like Australia, there are significant social injustices which bring an increasing number of young lawyers into what we might generally call “community lawyering.” When I arrived in that country in late 1974 there was a very small sector of such law work. And there was a great deal of burnout, as there were so few and so much to be done. It was almost impossible to make a career of it. But today there are about 250 community legal centers and a number of other modes of “community lawyering,” so there is now a career structure and more are making the choice to go in that direction.
RC – Here there is a great deal of public interest lawyering, and there certainly are many more young people who have become involved than when I began legal practice years ago. This is, of course, the result of the accumulated experience of our people and the present socio-political, economic conditions in which our youth are coming to maturity. Of course it must be said that there are different degrees of commitment to the struggle of the people. This is always true, of course. If you ask for 100% of their time lawyering in that way, it would be a tiny minority. At this center, that is what we do and have done since it was established in 1986.
GB – How would you sum up the work of the Center?
RC – Our fundamental task is, through our legal work, to raise the awareness of the people, especially the poor. Which of course is about 70% of our nearly 90 million population!
GB – Awareness of what in particular?
RC – Of the nature of the system we live in. We might say, the structures we are enclosed in.
GB – So that there is a political awareness that injustice is not just due to some incompetent or even corrupt individuals.
RC – Yes, and that is a difficult task here where the media makes a lot of noise about one scandal after another. There are big profits to be made in that. But we try to show the systemic nature of the corruption which is so pervasive in our society. And, taking another current issue, we reveal and explain the increasing militarization of our government institutions and programs.
GB – Yes, I have looked at that a little. Mrs Arroyo is surrounded by military and ex-military personnel, and many important positions and programs are under the direction of military types.
RC – We try to show the people that the present conditions, in which exploitation is massive – the rich growing richer, the poor poorer – calls forth repression. And that leads to many of the incidents such as Extra Judicial Killings and Disappearances, in which we are asked to lead the legal challenge to what are largely government operations. Such anti-people attacks are mainly aimed at those who are active in trying to organize and protect the people from extensive violation of their rights as workers and as citizens.
GB – And in so doing you also will be exposing the injustices which exist in, or flow from, the legal sub-system?
RC – Yes, the legal system is tilted against the poor and exploited. But that does not mean we do not try to win victories in legal struggles. People learn from defeats, as it can lead to a deeper understanding of the system, including government and judiciary, when justice is refused in the face of a clear case which demands it.
But they also learn from victories!
GB – In what way?
RC – Because the victories do not come easily, and normally come from popular mobilization.
GB – As Marx demonstrated in his discussion of the struggles over the Factory Acts which brought some reforms to the conditions of English workers. He was quite positive about such mobilization.
RC – In our struggles, we emphasize the importance of popular mobilization. This is crucial, especially in the circumstances here where not only are we fighting on the terrain of the state, but our opponents do not hesitate to deploy intimidation, harassment and even deadly force when challenged.
We work closely with the people, normally groups, and this provides an opportunity for us to explain the nature of the law, its contradictory and problematic nature. And of course, we leave them no illusions about the general reflection in the law of society’s dominant interests.
GB – I have read some of your speeches to various groups in which you make these points. Even to the Integrated Bar of the Philippines! Which suggests that the contradictions in law run deeply throughout the legal system here, including within the legal profession.
I also noted in a seminar on law and social justice at the College of Law at the University of the Philippines, there were academics and lawyers, human rights and other social activists, and client groups from various sectors such as trade unionists, peasants and fisherfolk. It must be a very exciting, if very dangerous milieu in which to work. And rewarding.
RC – There are rewards other than financial, and our young lawyers and paralegals do find their work highly satisfying.
GB – So an important part of your work is demonstrating how popular mobilization produces the leverage within the law which occasionally makes it tilt in the direction of the people.
RC – Yes. Even under Martial Law of the Marcos regime, when the tilt was very strong against the people. Many leading lawyers were in fact detained.
GB – How did that play out?
RC – There were many lawyers, of course, who were still able to practice, and they had an important role in small, day-to-day cases in which they challenged illegalities and abuses. Often relating to detentions and brutal treatment, and were based mostly on technical issues.
GB – So Martial Law did not mean there was simply arbitrary procedures and no law?
RC – Right. Marcos was a dictator, but like most such he wanted to be seen to be acting for the good of the people, the nation. And in doing so he needed to portray his actions as being lawful. Thus he always contended that he had acted constitutionally, in the circumstances, when he proclaimed Martial Law in September 1972. In the years following there were some actions the lawyers could take, just as there were in South Africa under apartheid.
GB – The idea being that acting “under color of law” provides legitimacy to the regime, or at least allows its supporters to believe that what is being done is justified by some interest other than the self-interest of those in power.
RC – He had to give the appearance, in general, of acting legally. And of course we know that Marcos was a very good lawyer, proud of his capacity to argue cases successfully – including the case in which he was convicted for the murder of his father’s political opponent, Julio Nalundasan. He won that on appeal, arguing the case himself before the Supreme Court. Justice Jose Laurel commented “To send this young man to jail would be to deny the country a brilliant lawyer.”
Marcos was always very aware of the power of law and the idea of justice. So he played on the desire of the people for a better society in which they could receive justice. He was able to convince many of his plans for a New Society, at least for awhile.
But in the end he was found out.
GB – Were the progressive lawyers organized in those days, what was their institutional base for resistance to the regime?
RC – There was the Civil Liberties Union of the Philippines. That was the main organization. Senator Jose Diokno, one of the leading lawyers in the country, was the President. He was detained at the very beginning of martial law. Later a number of other organizations emerged.
GB – I believe the Civil Liberties Union had been formed in the 1930s, and that all through the 1930s and into the late 40s and 50s, there were progressive lawyers working to protect the masses. I believe especially on behalf of the peasants and their unions, against the landlords and the state in the aftermath of the Second World War and the transition to independence.
RC – Those were very difficult times for the progressive movements, the workers, fisherfolk and especially the peasants as they were hammered by the military, with the support of the Americans who feared a communist uprising and the re-constitution of Philippine society. There also were terrible actions against the people by the private armies of the landlords.
GB – Perhaps we could look at the institutional basis for public interest lawyering in the contemporary period which seems in some ways, not all that different from the days of Marcos.
RC – The current regime has a bad record for human rights abuses, and the “tilt” against the ordinary people still exists. On the other hand, there are well organized social movements with many activists who support the people, and that includes a vibrant public interest legal sector. The first place to start in considering the lawyers’ role in the Philippines is the Constitution. It provides that no one is to be denied access to the courts due to lack of funds.
This has established what we might call a cultural tone which influences ideas about legal representation. There is a broad mandate that the poor must have access to the courts in a meaningful way. Of course this requires legal assistance. Thus, in normal circumstances, there is in effect, a requirement for the state to provide institutional and programmatic responses.
The government provides a Public Attorney’s Office under the Department of Justice. And the private sector has responded in a variety of ways, including pro bono work by both large and small firms and individual lawyers.
There is a large paralegal sector which complements these initiatives, as well as those in the public but non-governmental sector where their role is exceedingly important.
In that public sector there are numerous initiatives, including this Center, the National Union of Peoples’ Lawyers, FLAG, MABINI, University public interest lawyering centers. These take different forms, as do a number of others, either permanent or ad hoc, which deal with specific issues.
And of course, in the various sectoral organizations, for example, the unions of workers (government and private), peasants and fisherfolk, there are lawyers working on specific issues, but also joining in broader work which effects all, or several, sectors.
GB – That is a broad spectrum. In some countries it might be considered, in regard to much of what you have described, just basic legal aid, without any significant political dimension. What is different in the Philippines?
RC – For us, public interest lawyering means that the central driving force is being part of the overall political struggle. That is the ultimate contribution we make. In the practice of our profession we try to find the appropriate blend of our type of lawyering and the overall political strategy. But I must stress that it is complicated by our commitment to the basic principle: to ensure to the extent possible within the legal system, that justice is rendered to our clients.
GB – I remember the 1955 anti-communist and racist Hollywood film, TRIAL. with Arthur Kennedy as a duplicitous communist lawyer, where the opposite scenario was presented. It was, of course, a reactionary attack on the progressive lawyers in the National Lawyers Guild, and others, who were defending progressive causes against state repression. The victim in the film, the client and his mother, were portrayed as being used to increase support for the larger political “Cause.” It was a quite insidious film.
RC – That would be a Hollywood plot, and of course that was the McCarthyite period when progressives were “black-listed” and could not work in the film industry.
But such a scenario would not happen here. In each case, the political struggle must be a subordinate priority. Clients cannot be sacrificed, used as a tool for the “greater struggle.” This would be immoral. Totally unacceptable. I do not know the circumstances in America to which the film may be referring, but I would say it is open to serious doubt, a propaganda effort. It certainly would not be a tactic used in our work. And I might add, having worked as a lawyer in New York for many years, I saw nothing of that amongst the progressive lawyers I met.
Here, of course, there has been so much injustice in the courts, we do not have to manufacture “lost causes” to raise the consciousness of the people.
GB – Could we talk a bit about the work of the Public Interest Law Center?
RC – The two main areas of our work are, first, the violation of civil and political rights and, second, violation of social, economic and cultural rights. We have a tri-partite approach: litigation; advocacy work outside the courts; and community education, working mostly through groups such as peasant, worker and fisherfolk unions.
GB – Is there a speciality for which the Center is known?
RC – Yes, human rights advocacy.
GB – How is this all financed?
RC – We raise our own financial resources. We are self-reliant. We do not accept money from outside sources, i.e. foundations.
GB – I know that in the USA this kind of work is sometimes funded by law cases, such as a tort case, where the contingency fee could be quite large.
RC – We have that here too. We have in fact taken on some tort cases which, through the contingency fee system, have resulted in significant funding for the Center.
GB – Could you say something about the background to public interest lawyering in the Philippines. You must have seen a good bit of the development.
RC – Well, I was doing voluntary work with the Free Legal Assistance Group (FLAG) in the 1970s, and I was one of the founders of the PILC.
But we must remember that legal assistance to the poor the exploited and oppressed has a very long history in this country.
GB – Yes, I have been looking at the early 20th century. There were lawyers doing cases for the poor, for people who got caught up in the Philippine American War, even American soldiers who were on the wrong side of the occupying American regime. Ironically, one of those lawyers was Eber C. Smith, an American who seems to have had a general law practice located in Intramuros, Manila.
In doing some research on the resistance to the Americans, I came across the case of Macario Sakay, the great political/military leader who was induced by the Americans to surrender in 1906. He was deceived by the Americans who offered him, and his followers, immunity. But when these brave nationalists were disarmed, they were arrested, tried and Sakay and his chief lieutenants were executed. It was, of course, a show trial. They did not intend to let him off. One of his lawyers was Ramon Diokno, who I believe was the father of Senator Jose Diokno, whom you mentioned above.
RC – There is indeed a long tradition, not surprising in view of the repression our people have suffered for centuries under colonial forces, secular and other. It is true that many of our leaders in the Revolution against the Spaniards and the war against the Americans had studied law, and some had practiced it, if only briefly or intermittently. Mabini, of course is one who stands out.
GB – And of course there was the context: the Americans established a form of liberal, bourgeois administration, although very bureaucratic. And of course very much under their control, e.g. the Supreme Court had a majority of Americans sitting on it for years. Thus they were trying to act “under color of law” so that the Filipino elite would support them and assist in running the country. It seems there was a good deal of legal activity – what we might call “politico-legal” activity – as the two “partners” co-operated but also sparred to gain their own advantage. Much of this sparring was through the legal system.
RC – The American “rule of law” colonial state and the Filipino struggle for justice were in a sense conjoined as you suggest; and for our purposes here, it is important to note that one of the provisions in the 1935 Constitution under which we would ultimately get formal Independence, states that “free access to the courts shall not be denied to any person by reasons of poverty.” I suppose that could be unique in the history of the world’s constitutions. It certainly was early.
GB – Yes, even in the USA this was not seen as a right until the Supreme Court decided the great case, Gideon v. Wainwright in 1963, about which Anthony Lewis wrote his wonderful book, Gideon’s Trumpet.
To see it in the colonial Constitution is striking, and perhaps symbolic of the mode of colonial rule adopted by the US. Again, it shows the importance of understanding the legal system as a sub-system of the larger governance system; for we should remember that there is the other, dark side of American dominance of the Philippines: from the dreadful, brutal war of 1899 onwards, to their interference in the following decadeswith peasant struggles, the brutal repression of the anti-Japanese guerrillas (HUKs) at the end of WW II, and the continuing interference in Philippine political and ecomomic affairs since your Independence in 1946 to the present time.
RC – That provision has remained in all subsequent Constitutions.
GB – Yes, I noted that it was in the Marcos imposed Constitution of 1973. I was surprised to find in that document the establishment of the Office of the Ombudsman as well as the Sandiganbayan, the special anti-graft court.
RC – Well, Marcos wanted to be seen as creating the institutions for a “New Society,” a law-based, reformed society. And he was under pressure because of the increasing dissatisfaction with his regime and the way in which he had extended his term in office.
We can see here some similarities to the present situation in our country. But, of course, these were always seen as tools to be used for his purposes, in his struggles with those who were not his allies. They were not intended to “clean out” graft, corruption or governmental abuses.
GB – I suppose his concept of “authoritarian democracy” gives us a better understanding, now, of what his “reforms” were really intended to achieve.
RC – Of course we had had a lot of experience with authoritarian and repressive tendencies before – and since! – Marcos as you point out. And, in response we have had lawyers, what we used to call civil rights lawyers, who challenged the state and spoke for the people.
We mentioned the Civil Liberties Union of the Philippines, back in the 1930s, which continued into the post-War period. Jose Diokno was one of its leaders. There were others, e.g. Claro Recto and Lorenzo Tanada, all Senators, strong nationalists who fought on the legal and political fronts, against not only the abuses of the state,but also American neo-colonial policies and actions.
But the peak of progressive lawyering was in the Marcos period, especially after the martial law declaration in September 1972. The repression was immediate and comprehensive. Human rights violations, physical and other abuses, escalated rapidly: killings, “disappearances,” mass detentions merely on suspicion, or to intimidate the victims and others and to keep potential leaders away from their followers.
GB – How did lawyers respond?
RC – As you can imagine, it was quite a shock to people to have the military unleashed on the people and their organizations. For some time they were not well organized. This applied to most of the bourgeois leadership, any who were in the broad Opposition. And, of course, lawyers’ leaders, such as Diokno, were in detention.
Marcos initially justified Martial Law by declaring that there was an emergency situation. He had previously suspended the writ of habeas corpus, and now went another step to dictatorial rule, citing the threat offered by communist rebellion and the war with Moro forces in Mindanao.
But there were throughout the country, many unsung heroes, lawyers who worked with the poor – peasants and workers – in trying to protect their lives, their rights and their livelihood..
GB – And there must have been many cases emerging regarding “subversive” elements and organizations.
RC – There were many cases involving suspected revolutionaries, largely of the Communist Party of the Philippines, and of course those accused of supporting them in one way or another. Remember, through his Presidential Decrees, Marcos had outlawed most freedoms: of the media, of the people to organize. Most organizations were proscribed. In those circumstances there were many ways of violating the law!
GB – So it was difficult to practice progressive lawyering, or even to organize lawyers to do it.
RC – It was, but gradually things got going. The Association of Major Religious Superiors of the Philippines (AMRSP) set up the Task Force Detainees in 1974. AMRSP had been established in 1955 and were influenced by liberation theology. They were close to the progressive forces in the Opposition. They investigated reports of torture and illegal detention, abuses of various kinds.
GB – I have seen their work and references to it as “the leading watchdog on arbitrary repression in the country, heavily influencing Amnesty International’s damning 1977 report” on the conditions under Martial Law. (Scott Thompson’s book, The Philippines in Crisis (1992).
RC – When he was released from detention in 1974, Senator Diokno founded a new organization, Free Legal Assistance group (FLAG) which was to work with the AMRSP on these issues. The CLUP was given new life, with Diokno also in the leadership, and they produced the stinging critique of the Marcos regime and its policies in “The State of the Nation After Three Years of Martial Law” (1975). That was at the level of the public, national ideological struggle.
At the level where ordinary people experienced the regime of martial law, there were countless now nameless, faceless lawyers who continued to work for their communities all over the country. They did what they could in different small tactics and techniques to fight the repression of the Marcos regime. And all of this has contributed to the cumulative experience of Filipino peoples’ lawyers.
GB – And today, how is that experience manifested, applied?
RC – For example, we have the Public Attorney’s Office, with perhaps 1500 lawyers. They are public attorneys for the people, the common man/woman. They work in a great tradition, one of which they are aware. If you were to talk to them, you would find they are progressive, they are sympathetic to our struggle, for the most part. Even if they are not when they start out, it is inevitable that at least there is a strong chance they will become progressive in the job. This is because in our country, despite the mis-education of our people, the reality is far from the ideology. There is tremendous injustice, inequality and rampant exploitation. It is the common people who suffer. And these public lawyers come to understand that their work is a part of the general struggle for social justice. If achieved, that would be a “New Society” worth having!
GB – I am interested to know how you see the integration of progressive lawyering into the larger context of struggles for social justice. In a sense, I am trying to understand what we might call the Filipino Model of peoples’ lawyering.
RC – First, there must be integration. You cannot be an effective progressive lawyer unless you have a good working relationship with the larger progressive movement. We need to take cases for organized groups. These groups are, of course, organized by forces in political struggle. Except for the cases we take to derive funding, as mentioned above, we do not take individual cases. We refer them to law firms which we know are specialists and, naturally, have a record of being pro-people, with integrity.
GB – There is a lot of discussion in the country about corruption in the legal system, in the legal profession and in the courts.
RC – Yes, it is a big problem, though nothing new! Judges are bribed. And other government officials, both in and out of the legal arena. And it seems often it is lawyers who are involved in the bribing, as well as accepting the bribes. For a whole range of problems in the judicial sector, the common solution is to buy your way out. It is a known, and even proven, fact of life here.
GB – Of course we know that it is not just a problem here. It is a problem in most Third World countries; but perhaps in different, less blatant ways, it is also a problem in the advanced capitalist countries.
RC – With regard to integration, we should mention the trade union movement. As you know we have large, central institutions in the different sectors, e.g. for workers, the May First Movement, or KMU; the KMP for peasants; the Pamalakaya for fisherfolk. In these centers there are small legal units which deal with the issues affecting unions and their members. That is the more day-to-day conflicts with employers, police, and other governmental authorities.
However, for the more general cases involving human rights of the people generally, they will refer cases to this Center, and other organizations such as the NUPL. And of course the Center and the NUPL, and others, have a wide range of lawyers to whom referrals can be made if we need to spread the load.
Each center, certainly this one, acts as the legal arm of a number of social movement organizations. Thus there would be a wide range of actions in which we would be taking a part. We might, for example, be involved with a number of political groups in challenging the Constitutionality of the Visiting Forces Agreement, at the same time handling cases involving the families of activists who have been killed or disappeared or abused, tortured, by the military, including the police. These sorts of cases would be brought to us by an organization such as KARAPATAN, or one of the trade union centers. About half of the extra-judicial killings and disappearances involve union activists.
GB – And you use different methods, I believe.
RC – Yes, as I mentioned above, we have a three-pronged approach. We may litigate, especially constitutional issues, or we may seek relief, now using the new measures brought in by our progressive Chief Justice, Reynato Puno, that is the writ of amparo and the writ of habeas data. Or we may engage in advocacy, by submitting research reports we have prepared, or commissioned, on human rights violations; or we may even secure independent reports from outside, even international bodies. We also do various projects for community legal education, e.g. the Conference you referred to above.
GB – That was a marvelous experience for me, and I am sure for hundreds of others who had the opportunity to attend. I noted that many who came were from the organizations we have been discussing, and that they presented papers on the legal issues confronting them. Even some very small children were there with their mothers. It was a very convivial atmosphere with a strong sense of solidarity.
RC – You will have heard our Chief Justice discussing his new program of Justice on Wheels, the idea being to get people out of prisons by taking the courts to the institutions where they are confined in order to cut the delays in our creaking system. This has benefited thousands already. To have that kind of leadership from the top of the judicial tree is refreshing!
GB – I did find that impressive. And I also was surprised, but quite pleased, to hear him speak just after you had made your presentation which was a thorough critique of the injustice which the Filipinos suffer daily under the unequal political system in which they live, often at the hands of the legal system. He said, “I agree with everything the previous speaker just said.” I thought that was remarkably frank, and highly unlikely to be heard from a Chief Justice in Australia or the USA!
RC – He has been exceptional. Of course he is not a favorite of the incumbent President. But he is surrounded by her appointees and has increasingly been consigned to the minority in very important cases in the past few years.
GB – As a legal academic I am interested in the Law Schools here. There seems to be a rich tradition of University education, going way back to the 16th century. Law teaching in this country, however, came later. It seems to have emerged in the nineteenth century. As in most countries, and I suppose all colonies, it was an education of the elite. How much have the Law Schools contributed to public interest lawyering?
RC – A good question. The curricula are very traditional. As you know, Filipino graduates must pass the bar exam in order to practice law. It is on the American model. Except that here we do not have exams on a state or province level. There is one set of exams, which must be taken in Manila. It is very difficult to pass. Many do not.
GB – I believe it is very expensive, since the exam is given on four successive weekends during September. That means a lot of extra expense, especially if you are from the provinces, and a reduced income in that month.
RC – Indeed. And extra expense, and/or reduced income during the months leading up to September as the students prepare. The bar then is a very important determinant of who gets to practice law, but also what understanding of law the successful candidates will likely have. It is based on the traditional subjects and ideology of the law. So there is pressure on the Universities and the Law Schools to prepare their students for that exam. High priority must be put on the subjects which will be examined by the Bar. The result is a dearth of public interest law subjects. Further, most legal academics here are also practitioners. Some of these would be engaged in public interest lawyering, but I think not many. But they will be expected to teach what the students will be examined on.
GB – I have spoken to a Dean of a law school outside Manila. He was a practitioner. He did not seem remotely interested in discussing the teaching I was doing after I told him my course was The Common Law Tradition, and that I had for years taught the History and Philosophy of Law!
Of course there would be Deans in many law schools around the world who might react in the same way! But I have noticed that here in Manila, outside too, there are some positive developments, e.g. visiting scholars teaching Human Rights law, professors directing research on current issues such as constitutional, human rights issues, and centers for community legal assistance and research.
RC – Yes there are some encouraging developments. Still marginal to the curriculum perhaps, but an important part of the milieu of the law program.
GB – The Bar exam system does present problems. In Australia we have the English system where the profession makes known what “areas” of law we must teach, and reviews the law programmes periodically,
But there is no general exam like the bar exam after graduation. Thus we have more freedom to teach what we want, particularly through a large number of elective units. Another factor in our favor is that we teach double-degrees, so that a law graduate takes a law degree along with another degree in a five year program.
In theory then, I guess I would say that educational ideals are more easily mustered against strictly professional goals in our legal education. Nevertheless, very substantial battles have had to be fought against the pressures towards narrow, strictly professional education as opposed to a “liberal” or “humanities” educational approach. While the Critical legal Studies movement made some headway in a number of law schools, including my own, Macquarie University, this was achieved only after considerable struggle.
RC – That is interesting – the struggle at the workplace. There is no getting away from it.
GB – Of course, what I have come to realize is that the curriculum is only a small part of the influences on law students. It is the context in which the student studies, and in which the student emerges into the world of legal practice. It is the material experiences which allow the ideas and traditions to be weighed up, re-considered and adopted in a synthesis of ideology, knowledge and post-study practice.
Thus, in the case of Australia, the development of the Critical Legal Studies and successor movements in the 1970s and after, together with the blossoming of the many progressive social movements and the consciousness of human rights issues – including the environment – has meant that Australian Law Schools offer a great range of subjects, including public interest lawyering (with practical components, e.g. getting credit towards the degree by working with one of many community legal centers, or the Public Interest Law Centre (Sydney).
What is particularly important is that the student now has a career path in which to continue in public interest lawyering. But, one thing I have noticed, there is a limit to the political commitment, indeed the critical understanding of the capitalist system in which they work. So that limit means that lawyering in the public interest in the Australian context is very much limited by the general conditions in which people, lawyers and other, live and work.
The conditions are not sufficiently radical or extreme, to produce the revolutionary lawyers who I meet in significant numbers in the Philippines. Thus emphasizing the point you initially made about the concrete conditions being fundamental in developing the consciousness and commitment of peoples’ lawyers.
RC – That is interesting. It seems we have a long way to go in our law schools, by comparison. But our socio-political conditions are such that our young law graduates develop and maintain a high level of commitment to the larger struggle for social justice.
GB – Yes, we must look to the specific conditions in each society and try to remove those barriers to critical understanding and political commitment which is vital for real peoples’ lawyering. I guess we could say that in Australia the Law School environment, including the curriculum, can be important in getting students on the right track, and they can now find in the community centers a career which allows them to develop their commitment and understanding.
However, two other factors must be considered: first, the present lack of the strong radical critique of capitalism which spawned those critical movements of the 1970s; an international dimension here might be mentioned – the critique which developed in American Universities in the 1960s as a result of the confluence of the Civil Rights movement and the anti-Viet Nam War struggle. Second, not unrelated, the lack of a strong, mass-based Left which confronts the state – be it “conservative” or “social democratic” – and the social injustices which it aids in re-producing.
Of course we do not have anything like the blatant and severe repression and exploitation which confront the progressive lawyers of the Philippines. Thus they have an understanding and commitment missing in countries such as Australia. There is a harder, even revolutionary edge to it; and with three dozen lawyers assassinated in the past decade, a courageous dimension our lawyers have not had to experience.
That I and other outsiders have been so impressed by what is being done here by the peoples’ lawyers is, of course, a measure also of the anti-people policies of successive governments, including the current regime – perhaps the worst – of Gloria Macapagal Arroyo.
RC – There is no doubt our path has been a bloody one, and the lawyers have contributed much in the on-going struggle. Happily, we seem able to continue to fill our ranks with young people who are willing to sacrifice for the cause they believe in. Part of the reason for that brings us back to the issue of integration. There is a strong connectivity here, across a community of progressives. Their life is spent working with others,, as part of a broad, collective community striving together to make a better world for all.
GB – I recognize what you are saying in the wonderful spirit I have found amongst the progressive lawyers and the others with whom they are interconnected in the various social movements here. It seems a very dense civil society, and the lack of “western” individualism is noticeable, and refreshing.
Which makes my next question seem a bit strange perhaps, but I think personal stories are important in understanding the dynamics of the development of the commitment to working for others as a public interest lawyer. We can think of it as the dialectics of personal and political development!
RC – I grew up in Nueva Ecija, a province of central Luzon. I went to the University of the Philippines to do law, and came out in 1957. At that time I was, I suppose, a typical law graduate. That is I took up the traditional practice of law. Although I have to say that in land cases, I had a preference for the tenants. My father was a tenant farmer and I know how he struggled.
GB – As it happens I am doing some research on conditions in Nueva Ecija, back in the time of the Philippine American War, and through the 1930s and into the early 50s, so I have some idea how repressive and exploitative the landlords were in dealing with and controlling the peasants and their organizations throughout Central Luzon. I think it is not a coincidence that in such areas the masses have supported rebellions over the years. Central Luzon is well known, and much written about, for its revolutionary tradition. And progressive lawyers, I believe.
RC – Yes, all true, but of course we must come back to the specific circumstances, the individual experiences. In my case, it means that my class background, and my university experience were not as one, they were shall we say, not in alignment. So to speak, my left foot was with the progressive sector, while my right foot was with the establishment, the elite. This contradiction, and its effect upon my understanding, my political consciousness, remained. As we know from studies, this leads to a very ambiguous view of one’s position in the social structure, with potential resolution in several directions.
But in my early career, into the 1960s, the situation was relatively calm. So for me it was a long road. Though I was attracted to radical ideas and activism, it can take time for this to be internalized. For it to become subjective rather than objective, external, at arms-length.
GB – It is interesting for me, as I was in the US Navy, at Subic Bay in 1956 and 1958, and traveled a bit, up to Baguio and even down to Cebu City. The Philippines seemed a wonderful, peaceful country to us.
RC – The defeat of the HUKS and the ferocious repression of the peasant movements had left the country, the peasants, quiescent. For some years in the late 50s and into the 60s, the country was somewhat de-politicized. The calm before the storm! But I was to feel the storm in due course.
In 1973 I was elected from my province to be a delegate to the Constitutional Convention. This was originally an idea of the Opposition, but Marcos could see advantage to himself. As today, there was much genuine talk of bringing about changes to the Constitution, then the 1935 Constitution, the product of the American colonial experience.
Marcos, like supporters of President Gloria Macapagal Arroyo today, saw it as a way to avoid a likely election defeat in 1973 by extending his term under a new Constitutional arrangement. His political future was in doubt after Opposition forces gained some unity and emerged stronger than ever from the 1971 legislative elections. Of course, after the Plaza Miranda bombing in August 1971, he had suspended habeas corpus, and then in September 1972 he declared martial law, and began to rule by decree.
GB – What had happened to you, if anything, just after Martial law was implemented?
RC – Upon declaration of Martial law, I went into hiding. My office was raided. I was on their list as I was known to belong to a “Progressive Bloc.” As things worked out, my union colleagues arranged for me to be placed under “house arrest” rather than into detention. Altogether I was raided 3 times.
GB – So what was your response to this?
RC – I finally decided to flee. In 1975 I went to New York City and was admitted to the Bar there. I had my family with me. I did some teaching at City University of New York Law School, which gave priority to students from poor backgrounds who would not be able to afford the other law schools. And I was involved in expatriate Filipino activity, anti-Marcos work. As late as 1979, I was still associated with the traditional politicians – TRAPOS we call them – one being Ninoy Aquino. In some ways he was the leader of the traditional parliamentary Opposition, and certainly a TRAPO. But things were quite complicated, in a state of flux. He was in talks with almost everyone, Marcos’ people, the other TRAPOS, the Church and, it is said, the Communist Party of the Philippines.
GB – But you were radicalized at some point. How did that happen?
RC – At that time, because of the Viet Nam war, and the Civil Rights movement preceding it, New York City was politically alive. A part of this was the politicized Filipino expatriate network. It was a buzz living there. At first I did a lot of walking around, and found there was a rich supply of cheap Left literature which I immersed myself in. And I interacted with people of various Left tendencies, Marxists and others. That is when I really started to connect with the anti-Marxist support groups.
Like many before me in such circumstances, I realized I had a choice to make. You have to lead a meaningful life. It was a gradual development. I had to pass a big barrier. But I did. I decided I would devote my lawyering to the progressive cause. After nearly a dozen years in New York, I returned to the Philippines to help in the peoples’ struggle for social justice.
GB – And the PILC emerged then?
RC – We set up the PILC in 1986, and I have been the Director and lead attorney since that time.
GB – How would you sum up that experience?
RC – It has to be looked at realistically. We have had, even after the end of the Marcos regime, rather limited judicial space here. Our task, along with others we have mentioned, e.g. the NUPL, to broaden that space. I believe that under the present political-economic system this task is never completed, but must be continuously struggled for. Those are the concrete conditions in which we are forced to operate, and we must study and analyze them constantly and without false understandings based in subjective “hopes.”
I believe some progress has been made. We have had some victories in the Supreme Court. We work hard to achieve those victories, against rich, powerful and sometimes even threatening opposition. It is therefore uplifting. It is important for the young lawyers, and others, who have made the choice to head in our direction rather than to follow the money-trail of the traditional professional. It is tough going, especially when there are substantial resources, legal and other, arrayed against us. Tilt does exist in our legal system.
GB – And what of the defeats? The progressive practice of law is, sad to say, littered with defeats.
RC – But even the defeats have a positive side. For example, when Marcos was challenged in the courts e.g. about the legitimacy of his martial law regime, even though the Supreme Court found, narrowly and rather ambiguously, in his favor, it was a sign that he was not going to be able to do entirely as he pleased, that it was in that sense a warning shot fired across the bow.
Another positive effect is at the level of political understanding, which is important for anti-hegemonic work in the future. Defeats enable our clients to more fully appreciate the nature of the system under which they live. Thereafter they have no, or fewer, illusions about the institutions which govern them. Thus those institutions have less sweeping legitimacy, and this made it more difficult for the dictator to mobilize the people behind his quest for hegemony.
GB – They have learned what an American Marxist lawyer, Prof. Wythe Holt refers to as systemic “tilt” in the legal system, and which certainly exists pervasively in such an unequal society as is the Philippines..
RC – Of course, the angle of “tilt” is not fixed. Sometimes we can even push the balance over in the direction of the poor, the exploited and the oppressed.
GB – That is what we must continue to fight for as peoples’ lawyers. I must thank you for your commitment to that cause over many years, and wish you and your lawyering comrades the best in the coming struggles.
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