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Legal Aid and Development

(Jose W. Diokno)

On September 23, 1972, martial law was imposed on the Philippines. The more than
eight years of martial rule that have ensued had an unintended, but nonetheless
profound effect on legal aid in my country.

Before martial rule, Philippine society was far from perfect. But it had a political system
that was outwardly democratic: a constitution and laws that, at least in theory,
recognized the rights proclaimed in the Universal Declaration as legal rights; an
independent and generally upright judiciary; a Congress that seemed to be making
effort6s, though haltingly and mostly unsuccessfully, to solve some social ills; and a
press that was one of the most free in the world. Given this condition, relatively few
lawyers and laymen questioned the system: what they sought was to make the system
work as it should. So legal aid concentrated on enforcing legal rights, with occasional
proposals to amend the law. Legal aid was, in a word, apolitical.

Martial law changed that. By destroying all semblance of democracy; by abolishing


Congress and impairing both the independence and the powers of the Judiciary; by
controlling all communications media and managing the news; by stifling criticism
except when it is ineffective; by outlawing strikes, peaceful public meetings and student
councils; by hounding and harassing lawyers, leaders and organizers of trade unions
and of student, peasant and slum dweller organizations; by resorting to arbitrary
arrests, prolonged detention under inhuman conditions without charges or trial,
torture, degradation and executions formally unofficial but officially sanctioned of what
it is pleased to call “subversives,” a term it has never clearly defined; by substituting
military commissions for civil courts in trial of these “subversives;” by justifying itself
with the assertion that “western-style” democracy is not fitted to the Philippine
temperament, needs, traditions and values, although that system had functioned, with
more or less success, for the past 70 years—in short, by spreading a chilling climate of
fear over the nation and by steadily militarizing social institutions, martial law has led
lawyers and laymen to question not only the political system of martial rule, but even
the social, economic, military and cultural structures—national and international—that
led to martial law and nurture, sustain and prolong it. As a consequence, martial law
added a new dimension to legal aid: by politicizing lawyers and laymen, it politicalized
legal aid.

It is from this perspective—the perspective of legal aid practice in a neocolonial,


dependent, developing society under authoritarian rule—that I shall try to answer the
questions suggested by the organizers of this seminar:

“1) Legal aid can be looked upon as a resource of development, as it opens up ways for
the obtaining of more control over their own development by the people. How do you
view this? Which are in your opinion the possibilities and the limitations of legal aid,
considering your own activities and experiences?”

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1. Legal aid has traditionally viewed its function as providing legal solutions to legal
problems of the poor by vindicating their legal rights. This is a valuable function
in itself: every triumph of justice is cause for celebration. Unfortunately, legal aid
limited to this traditional function contributes little, if anything, to development.
The reason is not that legal aid for this type operates entirely within the existing
legal order: legal aid of all types must do so to remain legal. The reason is that
traditional legal aid accepts uncritically the basic rightness of the legal order and
of the social system and institutions within which it operates. Its premise is that
injustice is caused by the frailties of the men who make or enforce law, not by the
inequity of the social system itself. Its thrust is to uphold the law, not to transform
society. Its method for legal change is gradual and incremental, not abrupt and
radical. But development is social change, often fundamental and rapid. So
traditional legal aid is of limited value to development.

2. Traditional legal aid is, in fact, the lawyer’s way of giving alms to the poor. Like
alms, which provide temporary relief to the poor but do not touch the social
structures that keep the poor poor, traditional legal aid redresses particular
instances of injustice but does not fundamentally change the structures that
generate and sustain injustice. And like alms, traditional legal aid carries with it
the germ of dependence that can prevent those it serves from evolving into self-
reliant, inner directed, creative and responsible persons who think for themselves
and act on their own initiative. Unless this danger is guarded against, traditional
legal aid can retard rather than promote development: for above all else,
development is human development.

3. To contribute effectively to development, legal aid should politicalize its


traditional function. Legal aid lawyers should determine whether their client’s
legal difficulties are personal problems or social problems, that is, whether they
affect only their clients or an entire social sector or community. If the latter, they
should involve their clients in seeking to find the specific social cause of the legal
problems, the particular social structure and social forces that generated them, and
together attempt to work out both legal and social solutions. The resulting
awareness of the social causes of injustice will evoke the determination on the part
of lawyer and client alike to change law and society to correct injustice. And that
is the beginning of development.

4. Social awareness can be heightened if legal aid makes full use of its educative
function. By publishing legal primers in the language of the people, by
conferences with clients, and, insofar as possible, by the way litigation is
conducted, legal aid lawyers can teach people not only what their legal rights are,
but also what these rights should be; and equally important, how inadequate
existing legal processes and institutions often are to vindicate those rights, and
why they are inadequate.

5. Heightened awareness of problems and causes, however will not lead to action—
in fact, it can lead to apathy—unless it is coupled with awareness of possessing

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power to act. So legal aid lawyers should encourage the people they serve to
organize and act collectively with others similarly situated; and to invest and use
metalegal tactics mass actions that transcend ordinary legal procedures, without
openly defying existing law, to exert pressure for change in law and society.

6. Above all else, legal aid lawyers in developing societies under authoritarian rule
should realize that by serving their clients, they are in fact serving the people. For
the poor, the dispossessed, and the oppressed they defend are the people. That is
so in my country and, I believe, in other developing countries in Asia. In
determining their conduct, therefore, legal aid lawyers in such countries must
strive to be constantly aware of what the people want, and constantly seek the
most effective ways in which they, as legal aid lawyers, may use their knowledge
and their skills, on the occasions of legal aid, to help the people get what the
people want.

7. What the people of the Philippines and the rest of Asia want is not much different
from what people everywhere want. They want to have enough to live, of course;
but with as much fervor, they also want freedom from abuses and from foreign
domination. For Asians, freedom from want is not enough. Asians must have
respect for their dignity and control of their own lives as well.

8. To support the people’s strivings for these goals, legal aid must become critical
and creative—yet remain humble. Like traditional legal aid, critical legal aid
cannot—and must not—operate either outside or against the law, regardless of
how restrictive and repressive existing law may be. But it can and must devise
new tactics and forms of legal action, or discover new ways of using old tactics
and forms of legal action. And it must defend basic human rights even when—
indeed, specially when—they are denied recognition as legal rights or are
systematically violated. In such cases, legal aid must take advantage of every
occasion to arouse the conscience of those in power to the inhumanity of the
system they maintain and how it contradicts the very values they proclaim; and
by thus weakening their belief in their righteousness, to dispose them to do justice
and accept change.

9. Moreover, legal aid should not limit its advocacy to individual rights. It should
seek to vindicate collective rights as well; the sovereignty of the people, and the
right of national and local communities, both functional and territorial, to
survival, to development and to self-determination which, in the case of sub-
national communities, should be as broad as is consistent with the common good:
In short, the proper scope of legal aid in developing nations is to protect and
vindicate both the rights of man and the rights of the people.

10. One danger should zealously be guarded against: the tendency to direct the
activities of legal aid clients. Legal aid lawyers must always be conscious that
their role is purely supportive. Their task is to carry out decisions of those they
serve to the extent that this can be done legally, not to make decisions for them.

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11. Legal aid of this kind is much more difficult—and dangerous—than traditional
legal aid. Apart from the vicissitudes inherent in the very nature of legal aid,
some factors that restrict its effectiveness are:

– Snarled communications between lawyers and legal aid clients, caused by


differences in their social standing, training, experience, and ways of life
and thought, aggravated by the fact that law in developing countries has
often been adapted from the law of the former colonial sovereign, and is
written in a foreign tongue which is also the language of the courts and
government agencies, a language which lawyers are thoroughly familiar
with but which cannot be read or understood by the very people who need
legal aid;

– The impotence of legal processes when confronted by military force; and

– The sharpening of the painful dilemma that lies at the core of the practice
of the law. For lawyers to seek justice from a regime that systematically
violates human rights is to recognize the legitimacy of that regime; yet to
forbear is to leave the oppressed defenseless, and to acquiesce in the rule of
repression. Every defeat a lawyer suffers is a rape of justice by force; yet
every victory he gains polishes the image of the regime and prolongs its
reign. This excruciating dilemma has led some lawyers to abandon the
practice of law and adopt other roles, occasionally at the cost of
imprisonment or death.

12. These are some of the lessons we Philippine lawyers have learned about legal aid
under martial law. Taken together, they are a humbling experience, for they teach
us that, although legal aid can contribute to development, its contribution will not
be decisive. Yet this lesson in humility may be the most valuable contribution that
legal aid can make to development: the lesson that to win justice, the poor, the
dispossessed and the oppressed—who are the people—must rely, not on legal aid,
but on their own organized efforts. In the end, justice will be won only by social
liberation. And to be real, liberation must be self liberation

“2) Do you regard legal aid as a tool for change in the legal, social and economic
spheres? Which is the role of culture? Which is in your opinion the interrelationship
between ‘universal’ legal standards (e.g., human rights) and the sense of justice of
groups you are working with?”

1. I have discussed the value of legal aid as a tool for change in answering the first
question.

2. As to the role of culture, I believe the sense of injustice is universal. Every human
being knows when he is being unjustly treated. What acts are unjust and under
what circumstances, however, may vary from one society to another, depending on

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the historical experience of each, and the kind of structures and institutions each has
evolved. In matters of fundamental rights, most differences between people are
differences in degree rather than in kind, in emphasis or ranking rather than in
recognition or outright rejection. Take the right to life, for example, I know of no
people, however primitive, that approve of murder. But what is not murder that is,
what reasons justify the taking of life—may differ from one society to another. Or
take the right to freedom of expression. Some cultures inhibit criticism or
disagreement because of debts of gratitude, deference ton age, or to avoid
confrontation. This inhibition, however, holds only when the matter is not deemed
important enough to risk social disapproval. So the right to free expression is
universally felt; what varies only are the occasions proper for its exercise.

3. I have not come across any fundamental divergence between the concept of human
rights as expressed in the Universal Declaration and the sense of justice of the
groups I have been working with, except for one group: a group of tribal Filipinos
who, on occasion still resort to head hunting and who settle differences between and
within tribes by procedures of customary law. These procedures differ so radically
from those of lowland, Christian Filipinos, that the procedural safeguards in
criminal cases set out in the Universal Declaration are inherently inapplicable,.
Nevertheless, the substantive aspects of their customary law accord full respect to
fundamental rights.

“3) How do you relate your legal aid activities to structural conflicts? What is meant
here are both conflicts with privileged groups and government authorities and conflict
arising from international economic structures (for instance the activities of foreign
corporations)? Could you indicate in this context which is or might be the significance
of:

a) the working methods of an organization for development cooperation


like NOVIB.

b) The role of human rights and legal aid in the foreign policy and the
policy of development cooperation of a country like The Netherlands.”

1. I have discussed the role of legal aid in structural conflicts in answering the first
question.

2. Whether organizations for development cooperation, like NOVIB, can have good
or bad effects on legal aid programs in the Third World depends upon whether
the working methods of the development cooperation organization:

– Foster a sense of self-reliance or of dependence on the part of the legal aid


groups who are recipients of cooperation; and
– Constitute attempts to control or direct the program, or merely to review
the progress it has made.

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The working methods of the development cooperation organization should
be premised, not on its having extended assistance, but on its being as
interested as the recipient legal aid group in achieving the objectives of legal
aid. This should lead the assisting organization to recognize that the legal aid
group has better knowledge of conditions in the country in which it operates,
and defer to the latter’s determination of goals and choice of methods. On
their part, legal aid groups should strive to make the most effective use of
whatever cooperation they receive, and as rapidly as possible supplant it with
cooperation from local groups and organizations.

3. I am reluctant to discuss the role of human rights and legal aid in the foreign
policy of industrialized countries. Of course, human rights are a legitimate
international concern; but the cause of human rights is debased when it is used to
promote the selfish interests of developed nations.

4. As to development cooperation, I believe that aid from a foreign government


usually hurts, rather than helps, the people of developing nations. This is
because, unlike non-governmental organizations, foreign governments do not
extend development aid for purely disinterested reasons; they can apply a variety
of sanctions to erode the sovereignty of the recipient nation; and the aid they
extend helps to sustain existing social structures.

5. Since it is unlikely, however, that present governments of developing countries


would reject foreign aid or that governments of developed nations would stop
such aid, I suggest that:

– Developed nations should cut off all military aid to governments who hold
power through military force;

– Developed countries should cut off all aid to governments that prohibit
legal aid by lawyers in private practice, or who threaten, harass or
imprison lawyers for extending legal aid;

– Developed countries should limit development aid to projects or programs


which are likely to bring about changes in social structures that inflict
injustice; and

– Developed countries should channel more and more of their development


aid to responsible non-governmental institutions, like church groups and
non-profit foundations, that are free of government control, and are
actively engaged in projects and programs to eliminate poverty or at least
provide the poor, the deprived and the oppressed with the means to meet
their basic needs.

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A Primer on Developmental Legal Advocacy
(Free Legal Assistance Group, 1995)

What is developmental legal advocacy?

Developmental legal advocacy [DLA] is the underlying philosophy of FLAG. It was


formulated and originally articulated in the Philippines by the late Atty. Jose W.
Diokno in two seminal papers delivered in 1980 and 1981. DLA represents an attempt
to make legal aid more effective in the areas of human rights protection and
development. It is derived from a structural perspective on the causes of injustice and
an instrumentalist view of the law.

What is DLA’s objective?

The objective is to remedy injustice not merely by enforcing the law but also by
changing the law and underlying social structures which perpetrate or sustain injustice
and inhibit development. Primary reliance in attaining this objective is placed on the
efforts of the people themselves with DLA lawyers performing a supportive role.

How did DLA come about?

The emergence of DLA was a product of both necessity and insight; it was not born full-
grown. It evolved over the years from these beliefs which FLAG lawyers shared and
which their experience amply proved:

• That people, not lawyers, should determine what kind of society they
wanted and what changes were needed to achieve it;

• That these changes were fundamental, not just reforms, and had to be
buttressed by law; and

• That people should organize themselves and work together with others if
they were to gain power enough to make the changes they wanted.

In FLAG’s view, traditional legal aid had been unable to cope with a martial law
situation. This was not unusual nor unexpected: the major role of traditional legal aid
is to see that the law is followed in individual cases – which is to say that the main task
of traditional legal aid is to maintain the status quo with some reforms. Moreover,
under martial law, the people saw that the law itself clearly violated their human rights
and perpetuated social and economic structures that did so.

So FLAG decided to provide another form of legal aid that, for want of a better name, it
called developmental legal advocacy.1

1 In 1980, Atty. Diokno referred to FLAG’s philosophy as developmental legal aid; FLAG changed the word aid
to advocacy in 1993, but retained the essential elements of its philosophy as originally articulated.

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What is the role of DLA in society?

While the late Atty. Diokno recognized the limitations of traditional legal aid in the
development process, he harbored no illusions as to the possible contribution of DLA.
He described the role of DLA as “severely circumscribed, a basically supportive
function whose value lies as much in educating people on their legal rights, in
awakening them to the causes of their situation, and in assisting them to organize
themselves and act together, as in helping them vindicate their legal rights.”
Nevertheless, the distinctive feature of DLA is that it represented an attempt to make
some contribution to the development process.

The concept of DLA therefore emerged to address the inadequacies in the existing
provision of legal aid by focusing on structural change to remedy injustice and the
empowerment of the communities concerned to effect such change.

What are the basic principles of DLA?

DLA has as its starting point two fundamental tenets. The first is the vision being
pursued, namely, the creation of just social structures which would facilitate
development towards the full realization of human rights. This emphasis on a
structural approach and a consequently politicized form of legal aid was a by-product
of martial law. Martial law compelled “legal aid lawyers” to confront the injustice
which resulted not only from violations of the law but also from the increasing of
violations by the law. This led a number of lawyers to question the legitimacy of the
legal system and underlying social structures. It was in this context that the vision of
supporting structural change was articulated.

The second fundamental tenet underlying DLA is the recognition that where injustice is
perpetrated by the law or by economic and social structures, legal aid can have a
limited but useful value. This was FLAG’s experience during the 1970s. Nevertheless
even this recognition was seen by the late Atty. Diokno as contributing to development,
although “its contribution will not be decisive.” He stated that one of the most valuable
contributions DLA could make to the development process was “the lesson that to win
justice, the poor, the dispossessed and the oppressed … must rely, not on legal aid, but
on their own organized efforts.” The emphasis is therefore placed on the efforts of the
people to bring about the necessary changes. The role of the DLA lawyer is to support
the community in effecting such change.

What then is FLAG’s role?

FLAG has therefore concentrated on public, rather than private, issues. FLAG lawyers
determine whether a prospective client’s legal difficulties stem from a personal or a
social problem, the latter being one that affects an entire community or social sector. If
the former, they refer the client to traditional legal aid offices. If the latter, they accept
the case.

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One thing must be stressed: FLAG sees its role as purely supportive. The one thing
FLAG lawyers do not want is to make their clients dependent on them. If they have
learned one lesson from their experience it is this: that clients must rely on themselves,
not on FLAG, to fashion a vision of a better, more human society, and make that vision
come true.

What strategies has FLAG adopted?

FLAG has adopted a two-part strategy to effect legal and social change necessary for
the promotion of human rights and development. The first part of the strategy involves
confronting the government with the detrimental effects of its policies on the
population and the discrepancies between rhetoric and international standards on the
one hand and reality on the other. This part of the strategy is designed to make
government doubt its own legitimacy and undermine the support, both foreign and
domestic, which it may enjoy.

The second part of the strategy focuses on the basic sectors and its designed to increase
their awareness of the causes of their problems and help them to organize and mobilize
themselves to resolve their problems.

What are the functions performed by FLAG lawyers in furtherance of this strategy?

Functions performed by FLAG lawyers in furtherance of this two-part strategy include


legal services, education, advocacy and networking. A comprehensive approach in the
performance of these functions does not appear to be required by DLA and FLAG
lawyers adopted a selective approach in practice due in part to resource considerations
and to the specific needs of their clients.

How is DLA applied in the provision of legal services?

The provision of legal services to the community is one function of FLAG lawyers. The
theory of DLA influences the approach adopted by the lawyer in the performance of
this function.

DLA necessitates a holistic approach requiring the lawyer to engage in a more critical
analysis of the problem in order to identify its source and/or cause of continuance over
time. The response to the problem will generally be conditioned by the FLAG lawyer’s
perception of the law itself, notably, that the law and not merely a misinterpretation of
the law, can perpetuate injustice. A distinction is therefore drawn between legality and
legitimacy. While the law will always be legal it will not necessarily be legitimate.

Following from this is a recognition of the inadequacies of the law and legal processes.
In this context a primary of exclusive reliance on litigation address the client’s problem
may be misplaced and the need to pursue other social and legal solutions (metalegal
solutions) is accepted.

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Therefore, the starting point for a FLAG lawyer in handling a case will be a critical
analysis of the problem and a willingness to adopt not only judicial but also metalegal
tactics for its resolution.

DLA requires the lawyer to reorient his/her approach to the provision of legal services.
Thus:

(1) The FLAG lawyer’s starting point is to inform the clients of their rights and
the limitations of the legal system. The FLAG lawyer will outline the
limitations primarily to enable the client to avoid being over reliant on the
legal system to address their problems and to motivate them to develop other
legal and social solutions;

(2) S/he will involve the clients in seeking the social cause of the client’s legal
problem, the social structures and social forces that generated them;

(3) The heightened awareness of the problems and causes, however, will not lead
to action – in fact, it can only lead to apathy – unless it is coupled with
awareness of possession the power to act. So FLAG lawyers encourage the
people they serve to organize and act collectively with others; and to invent
and use metalegal tactics, mass actions that transcend ordinary legal
procedures, without openly defying existing law, to pressure for change in
law and society.

The transfer of knowledge from the lawyer to the community also helps to demystify
the law and render the legal system ore accessible to the client.

In formulating a response to the problem, the FLAG lawyer and client will explore not
merely a court oriented approach but also the use of metalegal tactics which might
assist in the resolution of the problem. Metalegal tactics are particularly useful where
rights are either denied through the operation of the law itself or through ineffective
enforcement mechanisms. Examples of metalegal tactics include the use of petitions,
mass attendance at hearings, hunger strikes, and the like. It must be stressed that the
role of the lawyer is to encourage the client ot develop their own metalegal tactics
where such tactics would assist in the resolution of the problems.

How does DLA work in terms of the lawyer’s relationship with the client?

DLA envisages a departure from the traditional relationship which is usually


characterized by the clients’ dependence on the lawyer. DLA advocates the
establishment of a new type of relationship which would foster a sense of self-reliance
within the client and reduce his/her dependency on the lawyer.

It is evident that DLA requires considerable interaction with the clients. The theory of
DLA recognizes the importance of a quasi-organized client community in order to

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articulate demands and to engage in a dialogue with the lawyer as to the source of and
possible solutions to problems. Thus, a FLAG lawyer is involved in the process of
organizing, a process with three distinctive yet overlapping components: education,
organizing and mobilization.

In all dealings with a client, the FLAG lawyer must always bear in mind –

First, that aside from his/her responsibility as a lawyer to successfully


litigate the client’s case, s/he also has a responsibility to educate the client not
only on what their rights are but also what their rights should be;

Second, that in order to fulfill this responsibility, the lawyer must fully
explore with the client the causes and solutions to the problems by means of
verbal interaction;

Third, that the lawyer must always keep the client informed of
developments affecting the case, and should involve the client in the decision-
making process;

Fourth, that the client must always be encouraged to interrelate with


others and to organize themselves so they can act collectively; and

Fifth, that the lawyer must avoid making the client dependent upon him/
her; and instead should always be receptive to ways to strengthen the client’s
self-reliance and creativity, so they can think for themselves and act on their own
initiative.

Thus, in interviewing the client, the FLAG lawyer must take great pains to explain in
the simplest terms what the law is, and what it should be; and should also take pains to
listen closely to what the client is saying, in order to determine the client’s level of
understanding.

What knowledge, skills and techniques must FLAG lawyers develop and possess in
order to effectively practice DLA?

These are:

• Knowledge of both local and international law on human rights;

• Knowledge of the national situation as well as the situation of the social


sector or community concerned;

• Interviewing skills: since effective communication with the client is


essential to DLA, it is important that the lawyer have good interviewing
skills;

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• Litigation skills, which can be divided into the following:

* Marshalling the evidence by means of fact investigation and discovery


procedures;

* Researching the law;

* Preparing and filing pleadings;

* Preparing for pre-trial and trial;

* Examining and cross-examining witnesses;

* Introducing and offering exhibits.

• Negotiation skills; and

• Teaching skills.

What are the indicators that show whether a FLAG lawyer is really practicing DLA?

The indicators are:

• Whether or not the lawyer discusses with the client the possible causes and
solutions to the client’s legal problem;

• Whether or not the lawyer takes pains to explain to the client not only
what his/her rights are, but what they should be, and why;

• Whether or not the lawyer involves the client in the decision-making


process in the handling of the case; and

• Whether or not the lawyer has avoided making the clients dependent or
reliant on him/her, and instead has encouraged the clients to make their
own decisions and take the initiative;

• Whether or not the lawyer has encouraged the client to interrelate with
others and to organize themselves to act collectively.

What is the role of FLAG lawyers in providing education?

FLAG lawyers also provide educational services in pursuit of the strategy for change.
The role of the lawyer in this sphere is derived from the belief that changes in unjust
social structures must be brought about by those directly affected. In order to effect
such change, the people must be aware of their rights and the inadequacy of legal
processes and/or social institutions which breed injustice and result in effective

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implementation of these rights, and why they are inadequate. This awareness is a first
step to enabling the community to engage in a critical examination of their problems
which, in turn, should assist in the development strategies to address such problems.
Te transfer of knowledge to the clients is therefore an integral feature of DLA.

This transfer of knowledge can take place through the publication of primers on legal
rights and, at an informal level, by the manner in which litigation is conducted or
through radio programs.

FLAG lawyers also conduct paralegal training sessions. FLAG believes that paralegal
training can assist in the empowerment of the community, and in helping people evolve
“into self-reliant, inner-directed, creative and responsible persons who think for
themselves and act on their own initiative” in addressing and working out solutions to
their problems.

What is the role of FLAG lawyers in networking?

In furtherance of DLA, FLAG lawyers also engage in networking. The role of the
lawyer in this regard is to urge the community to cooperate with other groups. This
role addresses the alienation of the base sectors from each other and the need to develop
and strengthen cooperation between sectors. Networking is not, however, confined to
the base sectors and FLAG lawyers engage in networking with other non-governmental
organizations and peoples’ organizations in order to maximize resources and to create
an effective division of labor. It should be pointed out, however, that this division of
labor is not a rigid one and there is no question of the role of the lawyer going beyond
the purely judicial sphere.

What is the role of FLAG lawyers in advocacy?

FLAG lawyers also perform an advocacy role. The focus of the lawyer in this context is
on the organs of state notably government and legislature. This role originates from the
strategy to confront government with the detrimental effects of its policies on the
population and the inconsistencies between government rhetoric, international
standards and reality. In the performance of this role, FLAG lawyers engage in research
and documentation, drafting critiques and position papers, drafting legislative bills,
lobbying members of Congress and participating in public hearings, campaigns and fact
finding missions. At an informal level, FLAG lawyers perform this role through the
effective use of pleadings during the course of litigation.

Why is DLA important?

DLA involves the lawyer in tasks beyond what are traditionally associated with the
legal profession.

DLA is essentially a pragmatic philosophy designed to make legal aid more effective in
the areas of human rights protection and development. Although it evolved in the

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martial law period, DLA continues to retain its validity and relevance in the Philippines
today. Although DLA was significantly utilized to vindicate civil and political rights, it
is being increasingly used to vindicate rights of an economic, social and cultural nature.
The flexibility inherent in the framework philosophy of DLA enables it to respond to
the changing context in which it operates and ensure its continuing relevance.

DLA is important because it is the cornerstone of being a FLAG lawyer. Without a firm
foundation in developmental legal advocacy, and certain necessary skills, a FLAG
lawyer will not be true to his/her commitment to the organization, and would not be
able to effectively render services to the poor and the oppressed.

Developmental Legal Advocacy: Meeting the Challenge of Relevance and


Responsiveness2
(E. (Leo) D. Battad)3

Introduction

Development means the full realization of human rights: the civil and political, as well
as the economic, social and cultural rights. Article 1 of the Declaration on the Right to
Development (DRD)4 thus states:

"The individual is by virtue of the right to development entitled to


participate in, contribute to and enjoy economic, social, cultural and
political development in which all human rights and fundamental
freedoms can be fully realized."

The DRD suggests that to facilitate the realization of human rights, development does
not only mean economic development, i.e., the improvement of material conditions but,
where majority of the people do not have control and exercise of power, it also means
political development. This includes "the activation of the broad masses of people into

2Paper presented at the International Conference on Protection and Promotion of Human Rights thorugh Provision
of Legal Services, Best Practices from Africa, Asia and Eastern Europe, Kyiv, 27th-30th March, 2007.
3Member and former national education officer of the Free Legal Assistance Group (FLAG), and founding chair
and member of the Streetchildren Development Center (SDC), Inc.

ENDNOTES
4G.A. Res. 41/120 (1986), adopted by the United Nations General Assembly by a vote of 146 to one (the
United States) with six abstensions.

!14
organized political force, so that the people's struggle for their own interests is the very
vehicle for social development. With the people, thourough their mass organizations, as
the medium of change, development is necessarily a movement for the revolutionary
transformation of society to achieve economic democracy and social equality."5

The DRD regards human rights as both a condition and objective of development. Its
aim is to respond to "concerns regarding the existence of serious obstacles to
development, as well as to the complete fulfillment of human rights and of peoples."6

Participation, however, is an important factor in development and the realization of


human rights. In the context of human rights, participation must be "active" and must
involve genuine power. Democratic participation requires conditions that include "a
fair distribution of economic and social power among all sectors of national society,"7 as
well as "genuine ownership or control of productive resources such as land, financial
capital and technology."8

In the context of popular participation, horizontally, the term covers participation in all
sectors of a country's public life and relates to all aspects of social, political, economic
and cultural affairs affecting individuals. Vertically, the concept concerns all stages of
the development process, and in particular, the following major phases:

1. Decision-making concerning development, which implies that those concerned take


an active part in the identification, selection, planning, elaboration, formulation and
adoption of projects;
2. Follow-up and evaluation of development programs;
3. Equitable sharing of the benefits of development.9

Participation is also an end in itself, which meets a fundamental aspiration of human


beings. Thus, people are "the subject rather than a mere object of the right to

5Merlin M. Magallona, Comments on Legal Education in the Third World, Philippine Law Journal 53:
81-88, 87-88.

6 GA Res. 41/120 (1986).

7 Russel Laurence Barsh, The Right to Development as a Human Rights: Results of the Global
Consultation, Human Rights Quarterly 13: 322-338, 329, citing The Conclusions and Recommendations of
the Global Consultation found in U.N. Doc. E/CN.4/1990/9/Rev. 1 (1990), Ch.7, para. 148.

8 Id. at 328.

9 Question of the Realization in All Countries of the Economic, Social and Cultural Rights contained in
the Universal Declaration of Human Rights and the International Covenant on Economic, Social and
Cultural Rights, and Study of Special Problems Which the Developing Countries Face in Their Efforts to
Achieve These Human Rights, Including: Popular Participation in its Various Forms as an Important
Factor in Development and In the Full Realization of Human Rights, Study by the Secretary General, E/
CN.47/1985/10, p. 7.

!15
development." They are not merely "resources" to be made healthy, skilled and
productive; they have a right not only to survival and material improvement, but also to
some measure of power.10

It is in this context that Developmental Legal Advocacy (DLA) becomes relevant.

DLA: Its Early Beginnings

In the area of human rights protection and development, the concept of DLA was not
born overnight. Originally articulated by the late Jose W. Diokno, founder of Free Legal
Assistance Group (FLAG), in two seminal papers that he delivered in 1980 and 1981,11
DLA evolved from the experience of FLAG lawyers during the dark days of martial law.

In those days, all semblance of democracy was destroyed. Its effects were far-reaching.
It abolished Congress, impaired the independence of the judiciary, controlled all
communications; stifled criticism; outlawed strikes, peaceful public meetings; hounded
and harassed lawyers, leaders and organizers of trade unions and of student, peasant
and informal settler organizations; resorted to arbitrary arrests, prolonged detention
under inhuman conditions without charges or trial, torture, disappearances and
extrajudicial killings; substituted military courts for civilian courts.12 Martial law also
resorted to forced evictions of thousands of informal settlers, militarization in the
countryside causing displacements of peasants, rural workers and indigenous peoples.
The situation was propped up with countless martial law presidential decrees, letters of
instructions and general orders that seek to rationalize government's denial of or
violations of human rights.

Shaped by their common experience of martial law, Jose W. Diokno and a small group
of lawyers founded FLAG in 1974. The organization "was built on a cornerstone that is
difficult to reject -- 'the right of the people to development.' It aims to secure the
development and empowerment of the poor and the oppressed, who are the majority of
this country (Philippines), so that they may participate more meaningfully in the
decisions and policies that affect their lives."13 In rendering services to its clients,
partner communities and groups, however, the FLAG lawyers have come to realize that

10 Id. at 6.

11These papers are: (1) Jose W. Diokno, Legal Aid and Development, submitted to the Seminar on
Human Rights and Development Cooperation, called by NOVIB in Netherlands in December 1980
(hereinafter Diokno, Legal Aid and Development), and (2) Jose W. Diokno, Developmental Legal Aid in
Rural Asean: Problems and Prospects, submitted to the Seminar on Human Rights and Development in
the Rural Areas of South East Asian Region in 1981 (hereinafter Diokno, Developmental Legal Aid).

12 Diokno, Legal Aid and Development, supra note 8, at 1.

13 Pablito V. Sanidad, Message in Free Legal Assistance Group 1974-1994, at 6.

!16
legal aid alone would not suffice, more so the legal aid of the traditional type -- called
traditional legal aid (TLA).

TLA had a limited value, particularly in the areas of human rights protection and
development. This is so because TLA is actor not structure-oriented. It is simply
limited to rendering free legal services to the poor in their private disputes (e.g.
defending common crimes, child support, and the like), no different from the general
"traditional lawyering" that lawyers do to the private disputes of their more better off
clients. This type of legal aid has its value in vindicating legal rights of private parties.
But not all human rights are legal rights. During the martial law years, and even today,
some human rights continue to be denied or violated by law. Hence, where the law
itself denies or violates human rights; where problems involve public disputes that
question state policy or thoureaten social structures, TLA can do little. This is because
TLA accepts uncritically the basic rightness of the legal order and of the social system
and institutions within which it operates.14

TLA assumes that the law is just and that injustice results from the frailties of those who
make or enforce the law. As lawyers trained in the legal maxim "dura lex sed lex", legal
aid lawyers see their function simply as upholding the law, not changing the law or
society. Since development is social change, often radical and rapid, TLA is of limited
value to development.15

To a large extent, TLA is the lawyer's way of giving alms to the poor. Like alms, it
provides temporary relief to the poor and merely redresses particular injustices of the
poor, but does not fundamentally change the structures that generate and sustain
injustice. Like alms too, "it carries within it the germ of dependence that can prevent
those it serves from evolving into self-reliant, inner-directed, creative and responsible
persons who think for themselves and act on their own initiative."16

With the realization that TLA has limited value to promoting human rights and
development, FLAG decided to provide another form of legal assistance, which is called
DLA. It was not meant to supplant TLA, but to supplement it, "concentrating on public
rather than private issues, changing instead of merely upholding the law and social
structures, particularly the distribution of power within society."17 It is an attempt to
make legal service more relevant and responsive in the areas of human rights protection

14 Diokno, Developmental Legal Aid, supra note 8, at 2-4.

15 Id. at 3.

16 Diokno, Legal Aid and Development, supra note 8, at 1. 2.

17 Diokno, Developmental Legal Aid, supra note 8, at 4.

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and development, toward a just and humane social order. Its distinctive feature is that
"it represented an attempt to make some contribution to the development process."18

DLA is the product of the FLAG lawyers' long experience under martial law, and the
lessons derived from this experience brought the FLAG lawyers these shared beliefs:

1. People, not lawyers, should determine what kind of society they wanted and what
changes were needed to achieve it;
2. These changes were fundamental, not just reforms, and had to be buttressed by law;
and
3. People should organize themselves and work together with others if they were to
gain power enough to make the changes they wanted.19

DLA: The Theory

Vision. As starting point, DLA pursues a vision of "just social structures which would
facilitate development towards the full realization of human rights."20 The excesses of
the martial law regime highlighted the long existing injustices in society and compelled
the FLAG lawyers to confront the injustice resulting from violations of the law, but also
from the violations by the law. It pushed them to question not only the legitimacy of
the legal system, but also the underlying social structures that breed this injustice.
Hence, the support for structural change.21

Objective. Derived from a structural perspective on the causes of injustice and an


instrumentalist view of the law, DLA's objective is not merely to enforce the law but,
more importantly, to change the law and the underlying social structures which
perpetuate or sustain injustice and inhibit development. DLA seeks to address the
inadequacies of TLA by focusing on structural change to remedy injustice and the
empowerment of the people, individually or collectively, to effect societal change.22

To attain DLA's objective towards the creation of just social structures, the
empowerment of the marginalized or disadvantaged sectors is a necessary condition.
DLA stresses that the people themselves must rely on their own efforts to bring about
the necessary changes, with lawyers merely playing a supportive role in effecting such
change. This primary reliance on the efforts of the people, and the lawyer's supportive
role, is borne out by the recognition that "where injustice is perpetrated by the law or by

18 Id. at 3.

19 Developmental Legal Advocacy in Free Legal Assistance Group 1974-1994, at 8.

20 Id.

21 Id. at 8-9.

22 Id. at 8.

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economic and social structures, legal aid can have a limited, albeit a useful value."23
From FLAG's martial law experience, its lawyers have learned one important lesson:
that clients must rely on themselves, not on lawyers, to realize their vision of a just and
humane society, and make that vision come true.24 This lesson is one of the most
valuable contributions of DLA. As aptly stated by Diokno, "[T]o win justice, the poor,
the dispossessed and the oppressed -- who are the people -- must rely, not on legal aid,
but on their own organized efforts."25

Strategy. A two-part strategy is employed in DLA to effect legal and social change
necessary for the promotion of human rights and development. The first part involves
confronting the government with the detrimental effects of its policies on the
population and the discrepancies between rhetoric and international standards on the
one hand and reality on the other hand. This is designed to cast doubt on the
government's legitimacy and to undermine the foreign and domestic support that it
may enjoy. The second part involves helping the marginalized sectors or disadvantaged
groups (e.g. informal settlers, peasants, workers, women, indigenous peoples),
communities and groups, and is designed to increase their awareness of the causes of
their problems and help them to organize and act on their own initiative to resolve their
problems.26

While recognizing the possible contributions of DLA to the development process,


Diokno described the role of DLA as "severely circumscribed, a basically supportive
function whose value lies as much in educating people to their legal rights, in
awakening them to the causes of their situation, and in assisting them to organize
themselves and act together, as in helping them vindicate their legal rights."27

DLA: The Practice

In its barest sense, DLA means rendering legal assistance to the marginalized sectors
and other groups and communities, on issues involving public interest, human rights
and social justice, giving primacy to the client's participation in the process of
addressing their problems. Hence, DLA means a lot more than providing legal aid. In
furtherance of its two-part strategy, lawyers engage in litigation, education, advocacy
and networking. These functions are not mutually exclusive of the other functions.
They are often done in combination with the other functions. The extent of lawyers’

23 Id. at 9.

24 Id.

25 Diokno, Legal Aid and Development, supra note 8, at 1.12.

26Developmental Legal Advocacy, supra note 16, at 9. See also Diokno, Developmental Legal Aid, supra
note 8, at 6-8.

27 Id. at 8.

!19
involvement in these functions (including the kinds of cases they handle), however, are
largely dictated by their available resources (both material and human), their level of
expertise, the needs of their clients or the prevailing situation. FLAG, for instance,
endeavors to accomplish all functions, when resources are available. Although it
handles various cases involving both civil and political rights and economic, social and
cultural rights, most FLAG lawyers have developed expertise in handling violations of
civil and political rights, noting their long experience in litigating violations of people’s
rights during the dark days of martial rule.

Legal services. While litigation is a traditional tool that most lawyers employ in
addressing legal problems, DLA necessitates a holistic approach at solving them. DLA
requires the lawyer to reorient his/her approach to the provision of legal services,
particularly because the cases involve public interest, human rights or social justice
issues.

First, when clients approach a lawyer with their legal problem, the latter engages in a
critical analysis of the problem in order to identify its source or cause of continuance.
S/he looks into the client's difficulties, whether these involve private issues or disputes,
or whether these involve social justice problems or public issues that affect an entire
community or the public in general. Necessarily, the lawyer's perception of the law
becomes important. In DLA, the lawyer views the law with a critical eye, mindful that
the law, not merely a misinterpretation of the law, can perpetuate injustice. Hence, the
lawyer is able to distinguish between legality and legitimacy of the law. This springs
from the recognition that while the law will always be legal, it will not necessarily be
legitimate. Following from this is the recognition of the inadequacies of the law and the
legal processes.28

In analyzing the problem, the lawyer involves the client. It is critical that if the problem
is vested with public interest or involves human rights or social issues, the lawyer
involves the clients "in seeking to find the specific social cause of the legal problem, the
particular social structure and social forces that generated them."29 The social
awareness that this generates will "evoke the determination on the part of the lawyer
and client alike to change law and society to correct injustice. And that is the beginning
of development."30

Second, recognizing the inadequacies of the law and the legal processes, the lawyer
informs the clients of their rights and the limitations of the legal system. This is
essential to enable the clients to avoid being over reliant on the legal system to address

28 Developmental Legal Advocacy, supra note 16, at 9.

29 Diokno, Legal Aid and Development, supra note 8, at 1.3.

30 Id.

!20
their problems and to motivate them to seek not only legal but also social solutions to
their problems.31

Third, the heightened awareness of the causes of the problem, and knowing their rights,
however will not lead to action unless it is coupled with the awareness of the power to
act. Hence, the lawyer encourages the people they serve to organize and act collectively
with others similarly situated to address the problem. Following from this, the lawyer
and the client seek to work out both legal and social solutions to the problem and
formulate not merely a court-oriented approach but also the use of metalegal tactics,
where necessary or appropriate, which might assist in the resolution of the problem.32

Metalegal tactics are goal-oriented, concerted actions of the people that go beyond the
use of ordinary court processes, without openly defying existing law, to exert pressure
for change in law and society. These actions are creative tactics that give life to the
meaning of the four freedoms -- freedom of speech and of the press, freedom of
expression, and freedom to peaceably assemble. Metalegal tactics include the use of
petitions, hunger strikes, noise or text barrage, rallies and marches, mass attendance at
hearings, wearing of pins and logos, among others.33

The importance of the metalegal tactics is one of the lessons that FLAG lawyers learned
in handling cases of political detainees. These are particularly useful in cases where
rights are either denied by law itself or thourough ineffective enforcement mechanism.
The identification and use of metalegal tactics in handling cases, however, may vary
from case to case depending on the nature of the case, the surrounding circumstances,
and the readiness of the people in employing them. At all times, the lawyer encourages
the client to develop their own creative metalegal tactics that would assist in the
resolution of the problem.34

It is evident that in providing legal service thourough litigation, lawyers would require
considerable interaction with the clients. Where the clients involve groups and
communities, the process of dialogue between lawyer and client would be unwieldy
and difficult unless there is the presence of a relatively organized community and
identifiable leaders. DLA, therefore, recognizes the importance of an organized client
community or group in order to effectively articulate demands, to engage in a dialogue
with the lawyer as to the source of the problem, and to identify solutions and undertake
metalegal tactics, when necessary, in the resolution of the case.35

31 Developmental Legal Advocacy, supra note 16, at 10.

32 Id.

33 Id.

34 Id.

35 Id.

!21
One aspect that stands out in DLA legal services is the character of relations between
lawyer and client. Unlike in a traditional legal relationship where the clients are
dependent on the lawyer, DLA advocates the establishment of a type of relationship
which would foster a sense of self-reliance within the clients and reduce their
dependency on the lawyer; a relationship where clients are able to think for themselves
and act on their own initiatives to resolve their problems.36

Thus, in some FLAG cases involving political prisoners or detainees, where the
likelihood of success thourough court processes is nil or slim, metalegal tactics such as
rallies or petition-delegations were resorted to in order to obtain release of prisoners or
detainees. Similarly, in eviction cases of informal settlers, although FLAG lawyers go
thourough the usual court processes, metalegal tactics were given priority, knowing that
the property laws in the Philippines are skewed in favor of property holders. Clients
sent petition-delegations to appropriate housing authorities to demand permanent
resettlement sites, or initiated negotiations with the landowners to explore the
possibility of purchasing the land occupied by informal settlers at a reasonable price
and amortization scheme.

In other cases handled by FLAG lawyers, government policies or actions that were
considered as detrimental to the population were challenged, usually thourough test
cases. There were losses, but victories as well. For instance, in Echegaray vs. Executive
Secretary,37 the constitutionality of the law designating death by lethal injection as a
method of carrying out capital punishment was challenged, but the Supreme Court
upheld the validity of the law.38 In Freedom from Death Coalition vs. Energy Regulatory
Commission,39 however, in defense of the right to affordable electricity, the provisional
Order of Energy Regulation Commission authorizing MERALCO to increase its rate
was assailed, and the Supreme Court declared it void as it had grave due process
implications since the ERC failed to consider the opposition and motion already filed on
record. Also, in Tatad vs. Secretary of the Department of Energy,40 the validity of the oil
deregulation law, an aftermath of globalization, and Executive Order No. 392, declaring
full deregulation of the oil industry, were challenged. The Supreme Court upheld the

36 Id. at 10.

37 297 SCRA 754 (1998).

38Sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177, however, were declared
invalid. The Supreme court held that Section 17 contravenes Article 83 of the Revised Penal Code, while
Section 19 fails to provide for review and approval of the Lethal Injection Manual by the Secreatry of
Justice, and unjustifiably makes the manual confidential, hence unavailable to interested parties including
the accused Leo Echegaray.

39 432 SCRA 157 (2004).

40281 SCRA 330 (1997). In case is also referred to as Lagman v. Torres, where FLAG Human Rights
Foundation, Inc., the registered name of FLAG, is one of the petitioners.

!22
challenge and struck down the law.41 On the other hand, the constitutionality of the
Visiting Forces Agreement (VFA) (between the Philippines and the USA) was
challenged in Bayan (Bagong Alyansang Makabayan) vs. Zamora,42 but the Supreme Court
upheld the validity of the VFA.43

Education. Another important function of DLA is education. It is integral to all other


functions of lawyers in DLA. Lawyers need to make full use of its educative function if
they are to contribute to development. Education has a central role in heightening
social awareness of the people as regards the rights and the inadequacy of legal
processes and/or social institutions which breed injustice and result in ineffective
implementation of these rights, and in making the people aware of their power to act
and take control of their problems. It facilitates human development by enabling clients
or communities to engage in a critical analysis of their problems, by themselves or with
their lawyer, and to develop strategies to address their problems.44
Making full use of the lawyer's educative function may be done by publishing policy
issues or legal primers in simplified terms, using the language understood by the
people, as well as providing or conducting paralegal training, seminars or workshops.
For instance, the publication of primers45 and provision of paralegal trainings or
seminars for the marginalized sectors are one of FLAG's major activities. In this regard,
FLAG, together with the National Secretariat for Social Action (NASSA) of the Catholic
Bishops Conference of the Philippines (CBCP), trail blazed the first paralegal training
for the marginalized sectors in the Philippines.46 Engaging clients in dialogues,
undertaking fora or symposia with clients or communities, or sponsoring legal

41In the Tatad case, the Supreme Court stressed: "Lest it be missed, the Constitution is a covenant that
grants and guarantees both the political and economic rights of the people... the protection of the
economic rights of the poor and the powerless is of greater importance to them for they are concerned
more with the esoterics of living and less with the esoterics of liberty... Our defense of the people's
economic rights may appear heartless because it cannot be half-hearted."

42 342 SCRA 449 (2000).

43 In Bayan case, the Supreme held that absent any clear showing of grave abuse of discretion on the part
of government, it is “without had no power to conduct an incursion and meddle with such affairs purely
executive and legislative in character and nature. For the Constitution no less, maps out the distinct
boundaries and limits the metes and bounds within which each of the thouree political branches of
government may exercise the powers exclusively and essentially conferred to it by law.”

44 Id., p. 11.

45 A few of FLAG's published primers that are intended for various groups and communities includes
those for Political Prisoners, Students, Workers, as well as primers on "Your Human Rights", "Paralegal
Craftsmanship", "States of Emergency", and the "Death Penalty".

46In 1981, under the joint sponsorship of FLAG and National Social Secretariat for Social Action
(NASSA), the First National Paralegal Training in the Philippines was undertaken, participated in by 139
participants, divided along sectors (e.g. fishers, farmers, workers, informal settlers, human rights
advocates, and students).

!23
programs over the radio or television are also valuable educational activities. Apart
from litigation, these educational undertakings help the clients and other communities
to know “not only what their legal rights are, but also what their rights should be; and
equally important, how inadequate existing legal processes and institutions often are to
vindicate these rights, and why they are inadequate.”47 They too are able to learn other
strategies in addressing their problems. Education, therefore, is important in
empowering the people towards human development.

Education, however, is not a one-way process. In making full use of their educative
function, lawyers also gain knowledge, enrich their perspectives and hone their legal
and communication skills as they interact with their clients and other groups and
communities.

The manner in which litigation is conducted (e.g. involving the clients in handling basic
legal tasks such as posting bail and requesting postponements, or raising novel issues,
perspectives or interpretation of the law in the pleadings) could also be a valuable
educative avenue not only for the clients, but for the courts as well. The clients realize
the limits of the legal processes, and are thus encouraged not to be over dependent on
litigation to resolve their problems. On the other hand, litigation affords the judges and
justices the opportunity to be apprised of international and local developments in
human rights, and challenges them to exercise judicial activism in the promotion of
human rights. By judicial activism the judiciary "may, in accordance with its ordinary
and available procedures so interpret the acts of the State that they do not contravene
the human rights of the States inhabitants. In other words, it may refrain from giving
effect to legislation and executive acts which contravene those rights."48

Equally important in education is the promotion of human rights and DLA by initiating
law students and other lawyers to DLA practice. Thourough foreign and local law
internship, human rights training programs, and publication of reference handbooks
and materials, law students and other lawyers are able to acquire the knowledge, skills,
experience, attitudes, and perspective necessary to practice DLA.

Advocacy. Another function of DLA is advocacy. One important aspect of advocacy,


however, is taking positions on policies of the government. Advocacy in this context is
in furtherance of the first part of the DLA strategy -- confronting the government with
the detrimental effects of its policies on the people and the inconsistencies between
government rhetoric, on one hand, and the international standards and reality on the
other. The focus of the lawyer's advocacy is on the organs of state, notably the executive

47 Diokno, Legal Aid and Development, supra note 8, 1.4.

48 D.L. Mahoney, The Role of the Judiciary in Human Rights. This paper was delivered at the University
of the Philippines on 22 November 1980. Mahoney was a Justice of the Supreme Court of New South
Wales, Australia and Member of the International Committee on Human Rights International Law
Association.

!24
and legislature.49 Illustrative of this function is FLAG’s Congress Watch where lawyers
engage in research and documentation, draft critiques, position papers and legislative
bills; lobby members of Congress; and participate in public and committee hearings,
campaigns and fact-finding missions. These were done, for instance, on such proposed
legislation as the Anti-Terrorism Bills, Death Penalty Bills, and Comprehensive Forensic
DNA Law.

Advocacy is also integral to the rendering of legal services thourough litigation and
educational activities. For instance, in legal pleadings, FLAG lawyers perform this
function thourough the effective use of pleadings in the handling of their cases.
Consistent with the lawyer's educative functions, hearings and legal pleadings are
venues to challenge government actions, state policies and laws, and make official stand
on certain issues.

Networking. Without networking, the lawyers' effectiveness in performing their


functions would be severely limited. On one level, the clients of lawyers need to
cooperate with other groups, particularly those that are similarly situated, to ensure
greater success in addressing problems that require not only legal but also social
solutions. For instance, successful metalegal tactics, often times require numerical
strength, apart from organizational cohesion. Being in the nature of a pressure tactic,
cooperation with other groups is an important consideration.

Among lawyers, networking is equally important. FLAG lawyers engage in


networking with other non-governmental organizations and people's organizations in
order to maximize resources, to share expertise or to create an effective division of labor.
The division of labor or sharing of expertise, however, is not a rigid one. Hence, the role
of the lawyer can go beyond the purely judicial sphere.50 FLAG's Anti-Death Penalty
Campaign best illustrates how networking with the Coalition Against Death Penalty
(CADP) and the Samahan ng mga Pamilya sa Death Row (SPDR) spelled the success of
the campaign. The joint effort and sharing of resources of the partners organizations
helped ensure the abolition of the death penalty in the Philippines in 2006.

Growth of DLA in the Practice of Law

Beginning in the early 1970s, DLA has not only evolved; it has taken root in other legal
organizations that were established in the 1980s. These legal NGOs have formed a
coalition known as the Alternative Legal Group (ALG) Network, which today is
composed of twenty-one organizations thouroughout the Philippines. The legal
organizations within the ALG are engaged in what is invariably referred to as
"alternative lawyering", "public interest lawyering" or "developmental law practice,"
characterized by non-traditional and creative legal services (other than the provision of
legal aid).

49 Developmental Legal Advocacy, supra note 16, at 11.

50 Id.

!25
In fine, "alternative lawyering" is best summed up in this wise: "To be alternative,
developmental or feminist lawyer means to view law as an indispensable weave in our
social fabric. It is to practice law, fundamentally for individuals, communities and
sectors that have been historically, culturally and economically marginalized and
disenfranchised. It is to engage in this practice systematically, under the umbrella of
sustainable organizations that foster dynamic and creative individuals. The mark of
such practice is that it seeks not only to create ripples of public impact from individual
cases but also that it empowers in the process. To be an alternative lawyer means a
clear professional commitment that the use of law is not the sole domain of those that
have passed the bar and taken the oath, but could and should be shared with the
individuals, communities and sectors which it affects."51 Thus, "[a]n alternative lawyer
does not practice alone. At the very least, their clients, beneficiaries or partners
participate in the process. They do so not only as paralegals but also as peoples who
work to better their conditions. They do so as principal actors in making decisions on
options which have been laid out by the alternative law group."52

The ALG organizations have "distinct programs for developmental, alternative, feminist
or strategic and political legal interventions. They are primarily concerned with the
public interest, human rights and social justice. They seek law as a means to empower
the disadvantaged."53 Regardless of the differences in the member organizations'
programs and activities, however, these have the following major components: legal
services (usually limited to what they refer as "strategic litigation"), education, research
and publication and policy reform work. These major components of organizational
work basically mirror the DLA functions of legal services, education, advocacy and
networking.

Constraints, Difficulties and Challenges in the Age of Globalization

Over the past decades that DLA has evolved in theory and practice, DLA lawyers have
met varying degrees of difficulties and constraints. Then and now, they continue to face
death thoureats, physical and psychological harassment and surveillance from state
agents or armed groups for their involvement in DLA activities. For handling cases and
taking up positions that question state policies or expose human rights violations, they
have been labeled as "pro-communists," "criminal coddlers," "destabilizers," "agitators",
to name a few.

51Marvic M.V.F. Leonen, Orientation on the Conference and Introduction of the Alternative Law Group
Network in Marvic M.V.F. Leonen (ed), Lawyering for Public Interest, 1st Alternative Law Conference
(Quezon City: Alternative Law Group), 2000, np.

52 Id.

53 Id.

!26
Moreover, it is not uncommon for DLA lawyers to work long hours of the night in the
office often with inadequate staff support, to face the physical risks and emotional
demands of dialogues and interactions with the poor communities in near and far-flung
communities. For those in legal NGOs, they and their staff have also to contend with
insufficient financial compensations that put added pressure on what is already a
demanding and risk-laden work, as well as the perennial problem of dwindling
resources to implement their programs and activities.

In the midst of globalization, the DLA lawyers will continue to face greater constraints
and difficulties, as well as challenges ahead. Whatever is the impact of globalization,
particularly in third world economy, this reality remains: that there will be winners and
losers in a socially engineered event such as globalization. And all countries,
communities and peoples will stand to win for as long as they follow the rule of the
game -- global competitiveness. But since not everyone is ready or has the capacity to
compete in the global markets, there will be the continuous reproduction of inequalities
and social injustices.54 In the Philippines, for instance, the phenomenon of
flexibilization of work arrangements and the informalization of workers have risen over
the years. This, not to mention the phenomenon of increasing feminization of
migration.

With globalization, the DLA lawyers will have to deal with other human rights issues
(e.g. transnational prostitution, human trafficking, child labor, flexibilization of work
that lessened the capacity of labor unions to organize, etc). They too will have to devise
creative means to help organize and mobilize sectors such as the informal workers, so
they may be able to act collectively in finding solutions to their problems.

DLA lawyers would have to face organizational constraints as well. They have to work
towards sustainable organizations, able to meet the needs of both lawyers and staff in
the light of dwindling resources coming from funding agencies. Creative, viable and
dependable means of cooperation with their client or partner communities or groups
need to be worked out to conserve limited resources.

Further, there is lack of understanding of human rights, not only among the people, but
also among those in the legal profession and the judiciary. Apart from this, there is also
the lack of understanding of the roles of lawyers in DLA practice such that they are
vulnerable to thoureats and harassment of all kinds from armed elements and state
agents. For these reasons, DLA lawyers need to undertake more extensive educational
activities to promote greater understanding of human rights and of the role of lawyers
in this advocacy in light of recent trends and developments in human rights. But how
well DLA lawyers could make use of the information and communications technology

54Carolyn I. Sobritchea, The Paradoxes of Globalization and the Politics of Imaging its Costs and Gains
for Women, 2005. This paper is a slightly revised version of the Plenary Paper presented at the Sub-them
Session of Globalization of "Women's Worlds 2005", the 9th International Interdisciplinary Congress on
Women held in Seoul, Korea from 19 to 24 June 2005.

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that has become a major force for intensifying the processes of globalization is a
challenge they will have to meet as it could spell a great difference in the way they
promote human rights and mainstream DLA as a theory and practice in the years to
come.

Moreover, the imperatives of the times call for judicial and legislative reforms. In these
respects, the participation of DLA lawyers in judicial and legislative reforms thourough
vigorous advocacy and education programs cannot be over-emphasized. For instance,
there is the need to gender-sensitize and upgrade the efficiency of court systems and
procedures (e.g. provision of rape shield rule, post-traumatic stress disorder as proof of
fact of trauma or rape). The need to improve the quality and access to judicial services
by the poor (e.g. physical accessibility, affordability) is also urgently needed. Equally
important are legislative reforms that are gender-sensitive and that provide greater
protection to human rights (e.g. prohibition against labor-only contracting, protection
against reprisal in sexual harassment, removal of gender biases in legislation).

Amidst the constraints, difficulties, and challenges, let it not be said, however, that DLA
practice is not without its reward. For the DLA lawyers also get their share of
affirmation from their clients that what they do, together with them, spells a great
difference in their lives and in society. In the course of their work, DLA lawyers have
received so many improvised certificates of appreciation; handicrafts of political
prisoners, women and farmers; art work of children; and beaded works of indigenous
peoples, among many others. These have not only come to serve as mementos of their
experiences, but also as living reminders of the nobility of their profession. That is to
say, they responded and continue to respond to the challenge of their profession – to be
agents or catalysts for social change. Call it "psychic reward", but a fulfilling reward it
is.

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