LAW, DEMOCRACY, AND DEVELOPMENT PROGRAM 19-FEB-03

IDSInstitute of Development Studies

Sussex

When the Poor Make Law: Comparisons across Brazil and the Philippines1

Peter P. Houtzager (IDS) and Jenny Franco (PEACE Foundation)

When the Poor Make Law is a comparative research project that explores how subordinated groups mobilise legal rules and institutions.2 It seeks to identify some of the factors that enable differentially situated groups of people to develop the capability to use law, individually or collectively, to enhance their opportunities for wealth, voice, and security. Law is the ongoing process produced by actors in society and in the state as they negotiating relations with each other by constructing, using, and complying with legal rules. Because legal rules (legislation, regulations, court rulings, etc.) are not self-enforcing, actors have to construct interpretations of what constitutes compliance. Contestation over these interpretations is a central part of making law and flows freely across the imagined state-society boundary. The ability of subordinated groups to produce new interpretations as they use law, and to make their interpretations authoritative, is one of the major concerns of this study. The research being undertaken traces how different segments of the rural poor in Brazil and the Philippines have used law over a twenty-year period (1980-2000). It pays particular attention to efforts by different segments of the poor to use law to gain access to land ownership and to challenge violations of civil liberties, including the right to organise. The data-gathering strategy being employed includes surveys of legal cases in local court houses and in administrative courts, interviews with representatives of different authority systems (state, church, patrimonial-communal, etc.), and focus groups discussions with different segments of the rural poor. Fieldwork is taking place at eight locations: in two municipalities in the Brazilian states of São Paulo and Rio Grande do Sul, and in two municipalities in the Philippine provinces of Quezon and Davao del Norte. The comparative and historical scope of the project makes it possible to explore the impact of different types of legal, political, and economic changes on the legal capabilities of different segments of the rural poor. The project, for example, examines the impact of agrarian reform, the presence of social movements (the Movement of the Landless (MST) in Brazil and the National Coordination of Autonomous Local Rural People’s Organisations (UNORKA) in the Philippines), the democratic transitions of 1985 and 1986 (respectively), and several national-level legal reforms. In the process of exploring the effects of different constellations of factors on the legal capabilities of subordinated groups, the project addresses some of the premises that inform the current wave of legal reforms to increase ‘access to justice’ and to strengthen the ‘rule of law.’ This note summarises the questions the study explores, the conceptual framing that underpins the study, and the methodological and data gathering strategies it deploys. Questions driving the research The study attempts to answer three questions. Question I. is descriptive, while Questions II. and III. are causal. Each question comes with a number of hypotheses that reflect important claims made in the literature relevant to the study. These are formulated in a manner that makes it possible to construct reasonable empirical indicators. 1 The research is a collaboration between researchers at the Institute of Development Studies, Sussex (UK) and the Institute for Popular Democracy (IPD) in the Philippines. It includes collaborative work with a variety of institutions, including in Brazil the Graduate Program in Rural Development at Federal University of Rio Grande do Sul, where Zander Navarro coordinates the project’s field work, the Centro de Educação e Assessoramento Popular (CEAP) in Passo Fundo, and IDESP in São Paulo, and in the the province of Davao, the Philippines AFRIM. The project is supported by a grant from the UK Department for International Development (DFID). 2 By subordinated groups we mean groups of people who are caught at the bottom of various systems of social stratification – that is, class-based, racial, gendered, and other forms of social hierarchy.

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I. Who uses legal remedies; and, to resolve what types of disputes or problems?

(a) People who live close to local courts and in more densely populated areas are more likely to use the judicial system than people who are not.

(b) Men tend to use law to resolve disputes related to property and/or commerce.

(c) Women tend to use law to resolve disputes related to family.

(d) In cases where the parties differ significantly in social status and material resources, the more vulnerable party is more likely to prevail if (s)he is part of, and enjoys the support of, a social movement or other form of organisation.

(e) For the rural poor Administrative courts provide easier access, and a generally more favourable adjudication process, than the courts of the Judiciary.

II. What (combination of) factors contribute to the ability of the rural poor to use state law?

(a) the ability to use other (non-state) authority systems (or regulatory orders), such as religious-based and patrimonial system;

(b) the existence of a ‘rights consciousness’ and a minimal level of legal literacy;

(c) the presence of strong civil society associations and/or social movements;

(d) the presence of public institutions that facilitate access to the judicial institutions, such as public legal aid;

(e) a political system in which political rights are widely respected and elections are competitive. III. How important are independent initiatives of progressive judges and reformist public officials in land tenure agencies to the enforcement of agrarian reform legislation and protection of civil liberties?

(a) such initiatives create an important incentive for rural poor to seek legal remedies in both areas

(b) such initiatives often do not influence the final outcome of the conflict between the parties.

CONCEIVING LAW The kinds of questions and hypotheses a study sets out to explore, and how it proposes to explore these, of course depends on the overall theoretical apparatus that is employed and how particular concepts are defined and measured. What follows is a crude exposition of three approaches to conceiving law, including that being developed in this study. Following this, the paper explains the comparative methodology of the project and the data collection strategy. The dominant conception of law has two complementary sides. Policy makers at the commanding heights of state and international organisations see law, broadly speaking, in instrumental terms; while legal professionals and experts generally view law through the lenses of legal positivism. Modernising elites of the right and left during most of the 20th century saw law as an instrument through which to pursue large-scale transformative projects. For state elites, law was a rationally constructed instrument “to restructure, plan or encourage enterprise on a massive scale, to promote peaceful revolution in social relations (for example, through anti-discrimination law) and to shape attitudes and beliefs in a manner far more ambitious than could have been attempted in early periods of social development” (Cotterrell 1992: 44). The “rule of law” is indeed one of the central characteristics of the modern state. The correctly designed set of rules, interpreted and applied correctly by agents of the state, including the judiciary, should produce the desired outcomes – modern societies. When outcomes fail to meet expectations the blame has been placed on subversion of the law by different groups of actors, or on the poor design of the rules themselves. The state-centric and instrumental view of law has been questioned less often. Legal experts and scholars have similarly conceived of law as a set of rules created and applied by the state (through the legislative process, court rulings etc.). Legal positivism, the dominant framework underlying professional legal training, is premised on the notion that creating the rules is the domain of politics and state elites and identifying the rules of law that apply to particular circumstances is that of

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the legal profession. For the legal profession as a whole, the law is a “given,” an objective fact located in the state. Legal instrumentalism and positivism retain their hold on the imagination of policy makers and legal experts today, for at least three obvious reasons. First, much legislation and judicial rule making does appear to be of a purposeful nature – that is, reasonable efforts at engineering social order or change. The questions of what kind of order, and change to the benefit of whom, we should set aside for now. Second, in particular social contexts it appears to work – there is substantial research that demonstrates how new legislation enacted to alter the behaviour of people has indeed done just that. Minimum wage legislation, seat belt and anti-smoking laws, and so on appear to vindicate at least part of the dominant view. Law can be an instrument of social engineering. Third, what are the alternatives available to large political-bureaucratic agents – that is, without state created and enforced legal rules, how do societies that are organised within nation-states produce social order and change on a large scale? We know, however, that how legal rules and institutions operate “varies considerably across geographic and social space – that is, across national territory and systems of social stratification such as gender, class, and ethnicity. Similar legal rules and institutions have dramatically different consequences for differentially socially situated groups.”3 The problem with legal instrumentalism and positivism is in part the belief in the autonomy of legal structures and their direct effects on the behaviour of actors. To much causal weight is assigned to formal legal rules and the institutions that enforce them. These alone cannot explain the great variation in legal outcomes that we find empirically. Acknowledging this has important implications for judicial reform initiatives and access to justice programs. The second conception of law is society-centred. Legal pluralism falls in this category, as do some of the policy initiatives that attempt to strengthen customary (non-state) courts and dispute resolution traditions. Approaches that are based on this view observe that meaningful regulation of people’s interactions often does not occur through official or state law, but through alternative unofficial regulatory orders, such as customary and/or religious rules and institutions. In order to grant these other forms of regulation equal conceptual and political legitimacy, legal pluralists insist that they must be recognised and publicly named ‘law.’ Leaving aside whether we should label all regulatory systems law, the idea that societies have multiple and sometimes competing regulatory orders, of which state law is only one, might help explain why similar legal rules and institutions produce diverse outcomes across and within countries. When people consider whether to use “state law” they weigh the costs and benefits in relation to their involvement in other regulatory orders. This implies that a central task of those involved in understanding when rural poor use law, and their efficacy when doing so, must be able to explain how and why people shift between non-state regulator orders and state law. Unfortunately there is relatively little work exploring the intersection between regulatory orders from the perspective of the ‘users.’ Legal pluralists have tended to focus on understanding “how people dispute” – or how they dispute in “many rooms” as Galanter put it – and not on the causal factors that push or encourage people to use different orders.4 For this and other reasons legal pluralism is a theoretically incomplete framework for the task at hand. The third view of law is the one developed in this and other studies that abandon the state/non-state dichotomy and focus on law as a process that is set in motion by the interaction of state and societal actors. In this view ‘state’-law emerges out of interactions between actors in society and the state over the setting, interpreting, and complying with authoritative rules.5 This process is set in motion when actors (state and societal), with differential legal capacities and access to resources, attempt to create, use, and comply with legal rules as they negotiate relations with each other. Central to this view is the idea that legal rules (legislation, government regulations, court rulings, etc.) are neither self-enforcing

3 Peter P. Houtzager, “We Make the Law and the Law Makes Us: Some Ideas on a Law in Development Research Agenda,” in Richard Crook and Peter P. Houtzager, eds., Making Law Matter: Rules, Rights and Security in the Lives of the Poor, IDS Bulletin 32, no.1 (2001), 8-18, on 8. 4 See Marc Galanter, “Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law,” Journal of Legal Pluralism 19 (1981), 1-47. 5 This view shares a number of features with that proposed in Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation (2nd edition, Butterworths 2002). Other works that have an affinity with the approach developed in this project include Bryant Garth and Yves Dezalay, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago, 1998); Lauren Edelman, Christopher Uggen, and Howard S. Erlanger, “The endogeneity of legal regulation: Grievance procedures as rational myth,” American Journal of Sociology 105 (2) (1999) 406-54.

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nor self-interpreting. To become authoritative legal rules, they require that actors interpret and invoke them. Although it is important that we examine how this process unfolds in other regulatory orders, the primary focus of this study is on the process we commonly call state-law, but which can more accurately be labelled state-society law or ‘societally authoritative law.’ This kind of law has gained central importance in the popular struggles to gain access to land and land ownership and to defend civil liberties of the rural poor. The invocation of societally authoritative law has affected the very nature of the struggle for land rights and civil liberties. And for good reason. The legitimacy this form of law can accord social struggles, and the ability it gives to the rural poor to call in state actors as third parties, can help to restrain violence and lower the costs of claim-making. When the legitimising cloak of state law is invoked successfully by the rural poor, it can aid in their escape from the tyranny of local despots, even if only temporarily, by putting the latter on the defensive and giving the former access to potential allies beyond the local level. State law also has strategic value in the sense that it has the potential to universalise principles underpinning specific rural poor claim-making activities, creating positive ‘spill-over’ effects for similar struggles elsewhere. To understand why some groups of people are better able to use and make state law than others, and to identify the conditions under which subordinated groups acquire ‘legal capacity,’ we borrow some of Pierre Bourdieu’s theoretical apparatus. Bourdieu offers a sophisticated yet elegantly simple way to think about how actors – individuals or organised groups – negotiate relations with each other in different arenas of activity.6 We can think of people or groups as being active in different arenas, such as the judicial or religious arenas (or the boxing arena for that matter). In these arenas different forms of power operate – for example, knowledge of legal or religious texts, or a certain type of physical prowess. The ability to deploy arena-specific power influences the outcome of the encounters between actors. Hence the ability to follow up a left jab with a right hook might win one a boxing match and earn a livelihood, but it will certainly not produce a positive outcome in the court room. Similarly, knowledge of the fine legal details that enable one to dismiss a case on procedural grounds, such as missing filing dates, will not serve one well when the encounter occurs within the church. Bourdeau refers to these arenas as “fields of action,” the actors who negotiate relations in the fields are “agents,” and the power that enables one agent to influence the behaviour of another as “currency.” The study adopts the field metaphor but replace the economic ones with Actors and Power (the ability to alter the behaviour of others in a desired direction). As we know from our own experience, all actors function in multiple fields.7 Empirically, its possible to identify the boundaries of a field by changes in the utility of different types of power. It is in fact out of the interaction between actors deploying particular forms of power that fields emerge. Fields share a couple of features. One, interactions between actors often occur through field-specific institutions. These institutions both empower and constrain action. Institutions are not, as the new institutional economics suggests, rules per se. Nor are they simply bundles of particular kinds of rules that we call organisations. They are social practices that are reproduced over time so that they acquire a degree of ‘solidity’ for people, allowing them to adjust expectations and plan future actions (Stinchcombe 1997: 391).8 Hence institutions are rules that are reproduced by the actions of multiple actors with diverse motivations. Two, field-specific institutions support field-specific forms of stratification. The pecking order in state bureaucratic fields, for example, is carefully and clearly defined, even if movement between levels of stratification often seems mysterious. The same is true for the Catholic Church with its centuries old hierarchy, as well the boxing profession. The bases of stratification in a field are a historical product and

6 See Pierre Bourdieu, “The Force of Law: Toward a Sociology of the Juridical Field,” translated by Richard Terdiman, Hastings Law Journal 38 (July 1987): 814-53; and Pierre Bourdieu and Loïc Wacquant, An Invitation to Reflexive Sociology (Chicago, 1992). 7 This conception shares a number of features with that of Sally F. Moore (1973), “Law and social change: the semi-autonomous social field as an appropriate object of study,” 7 Law and Society Review, 719-746. 8 Rules can be said to have become institutions when the power and resources that were necessary to create them are no longer central to their reproduction. And hence the actor(s) originally responsible for their creation lose control over them and reproduction becomes diffuse, driven by the actions of multiple actors with diverse motivations who use rules and organisations as “spaces” or “resources” to achieve their goals. This definition captures the intuitive sense of the term that pervades conversation of the specialist and non-specialists alike – institutions persist over time and therefore have a degree of solidity and predictability. There is not much analytic gain in lumping together legal and other rules that go largely unobserved (such as much constitutional law in much of the world) with those that actually structure important parts of social life. Similarly, placing organisations such as internet start-up companies in the same category “institution” as the Catholic Church is not analytically meaningful.

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do not necessarily overlap with control over different quantities of field-specific currency. They might be based in part on the position within certain institutions, strategic position within a particular network, and so on. Field-specific stratification does not imply that more socially-diffuse forms of stratification such as gender, class, and race, are inoperative. Much as class and race stratification often reinforce each other, field-specific stratification may build on or reinforce these diffuse forms of social hierarchy. The combination of unique bases of power, institutions, and forms of stratification give fields a particular logic and coherence of their own, and therefore a degree of autonomy from each other. This helps explain why actors who are highly successful in one field may fail in another terribly another, or why institutions that look similar can contribute to very different outcomes in different contexts. The juridical field is central to the process of law and, therefore, central to this study. It is a field that, along with others, is constitutive of the modern state but, seemingly paradoxically, not coterminous with it. It is reproduced by the actions of state agencies and judges, but also by lawyers, law firms, professional associations, law reform non-governmental organisations etc. In the two countries where the study is being undertaken, the juridical field is one of several fields of action where people seek to resolve conflict, and obtain redress and protection from authorities. These fields are connected to each other in context specific and multiple ways that cannot be specified a priori. Based on initial research, however, some of the most important fields can be named: the religious field with the Catholic Church at its centre; the community field where social relations are marked by relative equality and, in the Philippines, the Barangay council plays an important regulatory role; patrimonial field in which regional power holders are especially influential and the municipal government is a key institution; a movement field that has emerged around the MST in Brazil and UNORKA in agrarian reform areas; and a techno-bureaucratic field constituted by in particular by members of state land and other public bureaucracies. In the language of the approach outlined above, this study seeks to uncover what leads actors of the rural poor to choose the juridical field over the other fields, what enables them to be successful in that field, and when do they succeed in making their interpretation of a legal rule authoritative (the one different actors begin to reproduce). This approach suggests two new hypotheses. Let’s examine these by way of an example. Two parties are engaged in a conflict over land. They may seek to engage with each other in one or several fields. Diagram 1 depicts the options in a part of São Paulo, Brazil. The fields are represented as parallel ovals because we have good reason to believe that the fields exist but are not sure how they “touch” and impinge on each other’s logic. In Diagram 1 there are few fields that intersect other fields in a perpendicular manner. These represent actors who detain enough field-specific power and intimate knowledge of the logic of each field (a kind of informational power) that they are effective players in both. These actors in effect help bridge between fields. The brokers discussed in the literature on clientelilsm are an example. The brokers bridge relations between local patrimonial field and other fields, particularly those in which the state is a constitutive part.9 The land conflict example suggests that (i) the rural poor are more likely to use and make law where there are actors who help bridge between the patrimonial/community field and the juridical field. And that (ii) the ability to bridge fields is in and-of-itself a source of power, which expands the possibilities of action in both fields. In the Philippines and Brazil it appears that the government land departments, some sectors of the Catholic Church, and different types of NGOs and social movements have played such bridging roles, albeit in distinct ways. Our research hypothesis is that areas in which multiple actors brokering between fields, subordinated groups of people are more likely to use the judiciary.

9 An example from a different social realm: the civil servants who knows both how to deploy technical expertise, knowledge of organisational procedures, and obtain hierarchical positionality to be effective within a bureaucracy, and can deploy knowledge of contemporary scholarly work and social scientific concepts to transact effectively with academics in an social science department.

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Diagram 1 Fields of Practices & Legal Contestation in São Paulo, Brazil

ITESP (SÃO PAULO LAND INSTITUTE)

COMMUNITY/PARTIMONIAL FIELD

JUDICIAL FIELD

RELIGIOUS FIELD

MST

FIELDS COMPOSING THE STATE

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COMPARING To explore the research questions and the hypotheses, the project uses a series of paired comparisons. These comparisons occur at different levels of aggregation (see table 1). At the country-level Brazil and the Philippines, within each country at the regional-level, and within each region at the municipal level. Each layer of comparison is intended to help sort the strength of the different hypotheses set out above. For example, Brazil and the Philippines differ both in legal tradition and in what parts of the state adjudicate legal disputes involving land. In the Philippines the executive branch has ‘usurped’ a significant part of the judiciary’s jurisdiction when it comes to land conflict. In contrast to Brazil, where legal cases involving land disputes can only be brought through the judicial system, the Philippine constitution gives the adjudication board of the Department for Agrarian Reform broad jurisdiction, as well as the Department for Environmental Resources. Because of the substantial differences in standing, procedure and staffing, it is likely that the outcomes of land cases in judicial and administrative courts differ in which segments of the population they favour. The two countries have also undertaken contrasting judicial reforms to reduce the case-load of the courts and simultaneously increase access to justice. In Brazil a series of special courts were created during the 1990s, including the civil courts for small causes (small claims courts). In the Philippines the reform took a very different direction: the traditional Barangay councils were given the prerogative to mediate disputes before cases they reach the formal judicial system. While the Brazilian reform creates a greater division of labour within the formal court system, the Philippine reform annexes customary law and its dispute resolution mechanisms. The two regions that are compared within each country vary according to the competitiveness of sub-national political regime, and in Brazil the ideological orientation of the judiciary. The two municipalities chosen in each region vary according to the presence of strong rural social movements and other civil society actors. Table 1 shows some of the other variation that occurs at the different levels of comparison. Collecting Data The conception of law that runs through the project requires a multidimensional data collection strategy. Fieldwork has to reveal law as a process of interactions between actors who occupy different positions in different fields of action, some of which have substantial overlap. It also has to capture change in the process of law over an extended period of time, and provide some means for identifying the causes that helped produce these changes. This is a tall order. The fieldwork outlined below does not meet this order but it comes as close as possible, given the constraints that studies of this nature face. These constraints include, of course, the availability of written records in rural areas, the high costs of cross-country comparative work, and the various extra-project obligations of the researchers (to families, institutions, causes etc.). Begrudgingly accepting these limitations, the fieldwork is organised around three data collection components. The duration of the fieldwork is 12 months.

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Table 1 Comparisons Between and Within Countries and Regions

COUNTRY: Brazil Philippines

1. Constitutional & legal system

Federal / Civil law Unitary / Civil, common, & Islamic law

2. Regulatory orders

• State law (judiciary & labour courts); • Religious orders; • Patrimonial / customary law; • Movement of the Landless settlement

councils

• State law (judiciary, DARAB, DAR, Labour Relations Court, & Cooperative Development Authority);

• Patrimonial (cacique); • Barangay councils • Revolutionary justice of the National People’s

Army; • Religious orders

3. Judicial & Executive

institutions with jurisdiction over land issues

Judiciary is sole adjudication body; the labour courts have been used by some tenant farmers to obtain compensation for being expelled from their land by landowners

Department of Agrarian Reform (DAR) is primary adjudication body via the DAR Adjudication Boards; Department of Natural and Environmental Resources (DENR) adjudicates disputes involving environmental protection areas; & the judiciary

4. Major legal reform • Constitution of 1988, • Small Claims Courts reform (1994), • Agrarian Law of 1993, • Summary Expropriation Process (1993)

• 1986-89 reorganisation of the judiciary; • Constitution of 1987, • Agrarian Reform Law (CARL) 1988, • Local Government Code of 1991 • Barangay Justice System Reform

STATES: São Paulo Rio Grande do Sul Quezon Davao del Norte

1. Sub-national regime (open/competitive)

2. Justice system allies

3. Non-judicial allies

MUNICIPALITIES: Mun1 Mun2 Mun3 Mun4 Mun5 Mun6 Mun7 Mun8

1. Presence Popular org / NGOs

2. Legal aid

3. Rights consciousness

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1) Who Uses Law, 1980-2000

We are carrying out surveys of court cases in all eight municipalities, over a 20-year period. Our goal is twofold. The first is to map what types of people (by gender, profession, and location of residence – rural or urban) have used the courts, around what types of conflicts (civil matters). This information will tell us which social groups are using the judicial system, and what areas of their social life appear to be more legalised. The surveys also collect data on how much time different types of cases take to be adjudicated, and whether the length of time is influenced by the gender, profession or location of the residence (rural or urban) of the two parties. Finally, the survey is collecting data on the level of the court system at which cases are closed. In the case of the Philippines, the survey includes both the trail courts and the local and regional Department of Agrarian Reform adjudication boards. The second goal is to trace changes in these dimensions of judicial disputing over the 20-year period. We expect to find significant shifts over time as authoritarian rule gives way to formally democratic rule, agrarian reforms are undertaken in some areas, national legislation changes and new types of courts are created, and as social movements and NGOs emerge as important actors. To our knowledge this is the first systematic and comparative effort in Brazil and the Philippines to create a systematic and dynamic ‘map’ of legal engagement by the rural poor. 2) Identifying Fields of Action

The project hypothesises that whether people invoke state law and seek out the judiciary depends in part on their disputing opportunity structure. That is, people who function in different fields of action will make different decisions about whether to invoke state law or not. The study therefore attempts to identify the different fields of action in which people seek to resolve disputes and the relation of these fields to the judicial field. This is quite difficult. We attempt to get a view from ‘above,’ by conducting semi-structured interviews with authority figures in the principle fields, and from ‘below’ through a series of focus groups discussions with segments of the rural poor that occupy distinct positions in different fields. For each municipality around eight mixed gender focus groups are being held, varying according to the following characteristics: distance of residences from the municipality’s principal town (the administrative centre), whether they are in agrarian reform areas, and participants religious affiliation (Catholic or Evangelical). 3) Making Law from Below

The third component of the study consists of a small number of detailed case studies of legal contestation, which will allow us to explore how actors compete to construct interpretations of substantive law and why some interpretations prevail over others and become ‘institutionalised.’ These cases of contestation are defined not by a particular legal case, but by a particular episode of contestation that has the judicial system as at least one of its fields of action. In most of the cases we trace a sequence of legal cases (civil and criminal) in tandem with contestation in other, non-juridical fields (direct contestation on the streets, through the media, or legislative bodies or state agencies). We are of course particularly interested in identifying under what conditions collective actors representing the rural poor are able to make their interpretations prevail in legal contestation. In Brazil part of our cases focus in part on competing interpretations and contestation over rural property rights, and also on competing notions of where to draw the legal line between civil disobedience and criminality. For example, in São Paulo research focuses on the struggle between people who define themselves as ‘landless’ and landowning groups for control over land. A central component of the mobilisational strategy of Movement of the Landless (MST) is to occupy farm land that, its members argue, are being held illegally by large landowners. In this manner the movement attempts to force the federal or state government to intervene in the region and expropriate the occupied land for agrarian reform. A host of legal issues have arisen in this particular battle over land and law – including between competing conceptions of property rights and the ‘social function’ of land.10 On another legal front, this 10 See George Meszaros, “Taking the Land into their Hands: The Landless Workers’ Movement and the Brazilian State,” Journal of Law and Society 27, no. 4 (December 2000), 517-541.

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time relating to criminal law, landowners have sought to criminalise the MST by claiming that the it is a criminal gang with intent to appropriate property for self self-enrichment. The MST has fought to decriminalise its occupations and assert itself as a legitimate social actor engaged in civil disobedience. Its lawyers have argued that the penal code cannot be applied to its activities because it is, in fact, a social movement pressuring the government to enforce their constitutionally guaranteed right to agrarian reform. The goal of the land occupations, the movement argues, is not enrichment, but to pressure the government. In the early 1990s rulings by the local court, and upheld by the state supreme court (Tribunal de Justiça de São Paulo), held in favour of the landowners interpretation. Several MST leaders were indicted as gang leaders and some were sentenced to prison. In the mid-1990s the movement succeeding in challenging this interpretation and overturning the prison sentences. The Federal Superior Court – the highest court for such cases – found that the MST was a social movement that occupied land to pressure the government to implement agrarian reform. If the Movement was not interested in appropriating the land to enrich itself, then the criminal code could not apply. The legal battle subsequently shifted to the civil arena, where landowners filed claims against trespassing and damages (such as the destruction of fences). In the Philippines we have identified two episodes of legal contestation so far. In the first episode tenants in Bondoc Peninsula organised in the Samahan ng Magsasaka ng Catulin (SAMACA or Catulin Farmers Association), to include the 174-hectares Catulin Farm in the country’s remarkable Comprehensive Agrarian Reform Program (CARP). The members of SAMACA were installed as tenants on the landholding in the 1950s and 1960s and give up share of 70% to the owner, a prominent members of the local oligarchy. In August 1996, the tenants petitioned the Department of Agrarian Reform (DAR) for the coverage of the Catulin under the CARP. In response the DAR initiated the compulsory acquisition process that aimed at distributing the land. The owner’s response came in the form of, first, legal and physical harassment. Then, a substantial part of the property was fenced off, making entry and exit for tenants difficult and eventually the tenants were expelled from Catulin Farm. Cattle were brought in, on the one hand to destroy the tenants’ secondary crops and on the other to trigger the legal exception from CARP that cattle ranches enjoy. In a second effort to avoid CARP, mahogany trees were planted to substantiate the claim that the area is a reforestation project of the landowner with permit from the Department of Environment and Natural Resources (DENR), and therefore lies outside of CARP’s jurisdiction. Legal contestation in this episode therefore revolved around several legal issues and is taking place in multiple legal fora. There was a jurisdictional dispute between CARP and DENR over whether the land was being used for agriculture or not; a dispute over interpretations of CARP’s exclusion clause; whether the land was legally excluded from agrarian reform; and whether the farmers were tenants to the land in question. The Provincial Agrarian Reform Adjudicator ruled in favour of landowner, but upon appeal, both the Department of Agrarian Reform Adjudication Board (DARAB) and the Court of Appeals ruled in favour of existing tenancy relations, and confirmed that the original agricultural classification of the land and its inclusion under CARP. The tenant farmers received titles to the land in 1998. The second episode involves the efforts of approximately 35 tenant farmers in Quezon Province to end the share payments of 70 percent of their production and acquire ownership of the land they farm under CARP. The farmers organised a share boycott as part of a strategy to goad the landowner into filing a case in court, at which time proof of ownership of the 130 hectare of landholding must be shown, or in the possible filing of case against farmers (as has been the normal recourse of landowners in the area). This ownership documentation could then be used to facilitate coverage of the property under the agrarian reform law of 1988. This strategy has met with limited success but the tenants have filed a petition for inclusion under the agrarian reform law and have also made several claims with the Community Office if DENR. The principal legal issues are (i) whether farmers can be evicted from the property due to their boycott of share payments (initiated in 1998), and (ii) whether the claimant who does not actually cultivate the land may be granted ownership, and whether this right should prevail over the right of tenants to own directly or collectively public alienable and disposable lands they are tilling.

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Research Results and Further Information on the Project The research project briefly described in this note is based on an intensive data collection effort. It uses a diverse and innovative set of data gathering methods to produce the information that will allow a series of comparative exercises at different levels of analysis. The project, including data collection, production of interim reports, workshop and public discussions of the findings in Brazil, the Philippines, and the United Kingdom, and the final report, will be completed by the end of 2003. Research reports, working papers, and publication will be posted on the internet websites listed below as they become available.

Institute of Development Studies, University of Sussex – United Kingdom http://www.ids.ac.uk/ids/law/index.html Institute for Popular Democracy – The Philippines http://www.ipd.ph/pub/research/research_toc.shtml Graduate Program in Rural Development, Federal University of Rio Grande do Sul – Brazil http://www.ufrgs.br/pgdr

For further information on the project please contact one of the following project members:

Peter P. Houtzager, Institute of Development Studies, at p.houtzager@ids.ac.uk. Jenny Franco, Peace Foundation, at jennycfranco@yahoo.com

Zander Navarro, Graduate Program in Rural Development, Federal University of Rio Grande do Sul, at znavarro@portoweb.com.br.

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