The barangay is the basic unit of government in the Philippines. Unknown to many, it is where much of actual governance takes place, and where the government and the citizens meet face to face. More than a hundred roles have been assigned to barangays by the Local Government Code of 1991 and various special laws ranging from the delivery of basic services to women and children protection under RA 9262. It is no wonder that barangays are able to perform all of these obligations in view of their limited resources and personnel.
Yet, we observe that they have also been given a significant role in a process that keeps societies intact, making justice work. Under the present Local Government Code of 1991, the Katarungang Pambarangay system or the Barangay Justice System is an extra governmental mechanism aimed at perpetuating the time honored tradition of amicably settling interpersonal disputes in a community without recourse to the formal legal system of confrontational social behavior.
It provides a way for members of a barangay to settle their disputes through mediation, conciliation and arbitration without resorting to the formal justice system; i.
e. , the courts. The primordial objective of the Katarungang Pambarangay Rules, is to reduce the number of court litigations and prevent the deterioration of the quality of justice which has been brought about by the indiscriminate filing of cases in the courts. To attain this objective, Section 4123 (a) of Republic Act No. 7160 requires the parties to undergo a conciliation process before the Lupon Chairman as a precondition to filing a complaint in court.
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“ Very organized ,I enjoyed and Loved every bit of our professional interaction ”
Section 399 (a) of Republic Act 7610, known as the Local Government Code has created in each barangay a Lupong Tagapamayapa, hereinafter referred to as the lupon, composed of the Punong Barangay, as chairman; and ten (10) to twenty (20) members who are residing or working in the barangay and possessing integrity, impartiality, independence of mind, sense of fairness, and reputation for probity, may be appointed a member of the Lupon (Section 399[b] RA 7160). The Lupon shall be constituted every three (3) years in the manner provided in section 399(a), RA 7160. This means that the Lupon may hange its composition or membership every three (3) years. The Lupong Tagapamayapa carries with them in the exercise of their functions the different behaviors and characters. The traits, performance, attributes and individuality they manifest, when recognized and harnessed, can promote peace and reconciliation at the local level where they build consensus through dialogue which promote trust among the members of the governing body and the community. The central feature of the system is the Lupong Tagapamayapa, a community-based conflict resolution effort that is highly supportive of the notions of social ordering and human development.
While the speedy administration of justice is the immediate concern of the Katarungang Pambarangay, of equal importance is the leadership building and community empowerment as the resultant effects of institutionalizing the system. This paper does not attempt to do a policy evaluation of the Katarungang Pambarangay (KP) system. Limitations in time, resources, and case samples, prevent us from pursuing such objective. But we conduct this study as an attempt to appreciate how a particular aspect of governance – the delivery of justice works in the country’s basic political unit.
It likewise attempts to find out how an innovative practice can be fully utilized to benefit communities. Statement of the Problem The study will attempt to determine the socio-demographic profile and the problems encountered by the Lupong Tagapamayapa in different barangays of the Municipality of Bayambang. Specifically, it will seek to answer the following questions: 1. What is the profile of the Lupong Tagapamayapa in the different barangays of Bayambang in terms of: 1. 1 age; 1. 2sex; 1. 3civil status; 1. 4highest educational attainment; 1. number of terms as head of the Lupong Tagapamayapa; 1. 6occupation; 1. 7previous work experiences; 1. 8trainings/seminars attended; 1. 9membership in organization; 1. 10monthly income 1. 11number of children in the family; 1. 12religion; 2. What are the problems encountered by the heads of Lupong Tagapamayapa in the performance of their duties and functions? Scope and Delimitation of the Study This study will be delimited to the performance of the heads of Lupong Tagapamayapa in the seventy-seven (77) barangays in the Municipality Bayambang. Significance of the Study
It is hoped that the findings that will be drawn from this study will prove essential to the following entities: Lupon Members. Results of this study will remind them about the significance of their functions and their roles for a better and peaceful community. Punong Barangay. Findings of the study will serve as a big help for the Punong Barangay become responsible in appointing the members of the Lupong Tagapamayapa in their respective barangays. The Barangay Residents. The barangay residents will be assured of better service of the Lupong Tagapamayapa if problems encountered by them will be minimized, if not eliminated.
LGU of Bayambang. This study will be significant in undertaking activities and services for effective discharge of duties of the Lupong Tagapamayapa and for the satisfaction of the stakeholders. This study will be beneficial in forging collaborative efforts particularly regarding the performance of the Lupong Tagapamayapa. The Department of Interior and Local Government. Results of the study will guide the agency to plan trainings/seminars for the Lupong Tagapamayapa to have active role in settling disputes amicably without the need of judicial recourse. The Future Researchers.
Findings of the study would serve as a frame of reference for interested researchers who would like to undertake future researchers regarding the heads of Lupong Tagapamayapa. Definition of Terms For clearer understanding of the terms used in this study are defined operationally. Socio-Demographic Profile. It refers to different groups of people within the society. Pertaining to or characterized by a combination of sociological and demographic characteristics. Problems. It refers to a situation, a matter, a person in every barangay that presents perplexity or difficulty.
It is something to be considered, solved and answered. Lupong Tagapamayapa. It is a body organized in every barangay with the Punong Barangay as Chairman with ten (10) to twenty (20) members who has the function of maintaining peace and order and settling disputes. Katarungang Barangay (KP). It is a system of justice administered at the barangay level for the purpose of amicable settling disputes through mediation, conciliation or arbitration among the family or barangay without resorting to the courts.
Amicable Settlement. It is an agreement reached during mediation and conciliation proceedings. Arbitration. It is a process wherein the third party from outside the judicial system is chosen by parties to hear and decide their dispute. Conciliation. It is a process wherein the Pangkat forgoes the power to decide or recommend but assist the parties to isolate issues and options to reach a settlement by consensus that jointly satisfies their needs. Chapter 2 REVIEW OF RELATED LITERATURE AND STUDIES
This chapter aims to help the Department for International Development (DFID) assess whether and how to work with Non-State Justice Systems (NSJS) as part of its program to advance Safety, Security and Accessible Justice (SSAJ) in the countries where it operates. It consists of foreign and local studies, synthesis of reviewed related literature and conceptual framework. RELATED LITERATURE The Philippines’ Katarungang Pambarangay, or Barangay Justice System (BJS), is a formal system based on traditional mechanisms of mediating local disputes.
It operates at the level of the barangay, a local government unit of which there are approximately 42,000 in the Philippines. Like shalish, the BJS is rooted in its society. Its most salient, widespread form is that run by government officials and persons they appoint, rather than traditional or NGO versions. A 1978 presidential decree first established the BJS. It was modified by the country’s 1991 Local Government Code and other subsequent legislation. Though not without its flaws, the BJS does offer key advantages over the judicial system. These include: ?
It is based on Philippine traditions, which include the use of friends and neighbors to amicably settle disputes. ?The BJS is far less costly than the judiciary, with an average filing fee of 20 pesos, a tiny fraction of court costs and lawyers’ fees. ?It also is far faster, with problems settled in a matter of days or weeks, rather than (typically) years. In the Philippines, as in many other nations, there has been an ongoing tension between the national system of private land ownership and many cultural minorities’ communal systems of land use.
A 1983 law journal article fleshes out the distinction as it applies to a prominent cultural minority of the Cordillera region, the Kalinga: With individual ownership as its central feature, the Torrens system of land ownership and registration draws its philosophy from the Western capitalist mode of economic relationships. Land is treated as an individual commodity…To promote commerce, trade and the circulation and accumulation of capital, land is made easily alienable… On the other hand, Kalinga customary laws of land ownership are basically indigenous.
Unlike the Torrens system, their underlying philosophy is communal—not individual—ownership…Land is not a mere commodity but a sacred and valuable possession…Preservation—not alienation—of property is the basic policy. Despite various and vigorous government campaigns to introduce the Western system of land ownership in the mainstream of Kalinga life, it is only in recent decades that the drive has begun to gain significant headway. This development came in the wake of the cash economy’s increasing penetration into Kalinga society, accompanied by the growth of and commerce in the area. Aranal-Sereno and Libarios, 1983: 448) The last paragraph is noteworthy because it exemplifies a general reality that nonstate justice systems are dynamic, not set in place by written laws in the ways that state systems are. In this instance, in some parts of Kalinga society there is greater acceptance of the state system of private, alienable land ownership. Various other sources have noted the ways in which indigenous mores are changing in response to education, commercial activity and political developments. Yet this particular kind of evolution does not only move in one direction.
In fact, a series of policy, regulatory and finally legislative reforms in the 1990s integrated notions of communal ownership into state law in key respects, as it applies to cultural minorities. These changes culminated in the passage of Republic Act No. 8371, otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA). The law promotes state respect for indigenous peoples (an alternative term for cultural minorities), their cultures and their customary laws, including their claims and processes regarding lands historically farmed and otherwise used by these groups.
This includes a cultural minority’s “right to resolve land conflicts in accordance with customary laws of the area where the land is located. ” (Government of the Republic of the Philippines 1997: 8) Another significant feature of the Act is the manner in which it integrates state and non-state systems. To protect their claims to lands they have historically used and occupied, otherwise known as ancestral domains, cultural minorities must go through a certification process that results in recognition of title.
Thus, the claim is rooted in tradition and the nature of the claim is communal. But the formal state recognition of it comes about through a process established by the national government. RELATED STUDIES Foreign Studies The term “shalish” (or “salish”) refers to a community-based, largely informal Bangladeshi process through which small panels of influential local figures help resolve community members’ disputes and/or impose of sanctions on them. (It also can refer to the panels themselves. Non-Governmental Organizations NGO and the government have drawn on and modified this process in recent years so that shalish now takes three basic, sometimes overlapping forms in Bangladesh: traditional; government-administered “village courts” (though under the relevant laws other terms technically apply for family and urban disputes); and NGO-modified. Shalish may involve voluntary submission to arbitration (which, in this context, involves the parties agreeing to submit to the judgment of the shalish panel), mediation (in which the panel helps the disputants to try to devise a settlement themselves) or a blend of the two.
In a harsh, extreme version of its traditional form, however, shalish instead constitutes a de facto criminal court that inflicts trial and punishment on individuals who have not consented to its jurisdiction. The actual shalish is often a loud and passionate event in which disputants, relatives, [shalish panel] members and even uninvited community members congregate to express their thoughts and feelings. Additional observers — adults and children alike — gather in the room’s doorway and outside. More than one exchange of opinions may occur simultaneously.
Calm discussions explode into bursts of shouting and even laughter or tears. All of this typically takes place in a crowded school room or other public space, sweltering most of the year, often with the noise of other community activities filtering in from outside. The number of participants and observers may range from a few dozen to well over one hundred. (Golub 2000: 137-138) As summarized by Khair in a thoughtful review of NGO-modified shalish, in its traditional form the practice is basically a practice of gathering village elders and concerned parties, exclusively male, for the resolution of local disputes.
Sometimes Chairmen and elite members of the Union Parishad are invited to sit through the proceedings. Shalish has no fixed dimension and its size and structure depend entirely on the nature and gravity of the problem at hand. (2001: 5) A recent report for the Asia Foundation, the international development organization that has most extensively examined shalish (and supported its NGO variation), further explicates the nature, appeal and drawbacks of the traditional approach: [Shalish] generally saves time and money, and it serves as a platform for airing grievances…
Although shalish members have the option of engaging in either mediation or arbitration to reach a solution, most commonly choose arbitration. This method involves unilateral decisions made by officiating members, whereas mediation engages opposing parties in reaching solutions of mutual satisfaction…Although the decisions are not always fair and equitable, they tend to carry a great weight within the community because they are issued by well-known and powerful villagers. However, among those who lack respect for these decision-makers, it is extremely difficult to enforce rulings if the parties refused to comply…
Sometimes solutions are arbitrary and imposed on reluctant disputants by powerful village or community members. Such “solutions” are based lesson civil or other law than on subjective judgments designed to ensure the continuity of their leadership, to strengthen their relational alliances, or to uphold the perceived cultural norms and biases. The shalish also is susceptible to manipulation by corrupt touts and local musclemen who may be hired to guide the pace and direction of the process by intimidation.
Furthermore, because the traditional shalish is composed exclusively of male members, women are particularly vulnerable to extreme judgments and harsh penalties. (Khair et al 2002: 8-9) Corruption also can infect the process in other ways, such as through a panel member’s solicitation of bribes to nudge the group’s consensus in a given direction. Consistent with the inclination toward arbitration and arbitrariness, Hashmi claims that those the shalish finds to have offended community norms may be publicly shamed or, inunusual cases, socially ostracized. Hashmi 2000: 99). Social ostracism by no means represents the harshest, most extreme version (or perversion) of shalish, however. Amnesty International and other sources have documented numerous incidents of women, even rape victims, being lashed or even stoned to death for violation of local norms. Often these abuses stem from fatwahs (religious rulings) handed down by local mullahs who belong to the shalish panels or otherwise influence them, and who interpret or misinterpret sharia (Islamic law) to impose such egregious treatment.
What is less clear is whether the reports of these abuses reflect an actual increase in such incidents, perhaps due to a rise in militant fundamentalism, or whether these incidents have always occurred, but only received attention in the 1990s due to improved NGO, human rights and media penetration of rural Bangladesh. Though such human rights violations merit international and domestic condemnation, there is a sense in which the necessary focus on them may mask the more pervasive, systemic manner in which traditional shalish can perpetuate the poverty and powerlessness of women and other disadvantaged populations.
To its credit, traditional shalish may well provide easy, free, comprehensible access to justice in situations where biases and power imbalances do not mitigate against fair consideration of disputes. But a diversity of sources document the biases and power imbalances that hold back Bangladeshi women, and indicate the harmful ways in which these factors play out in traditional shalish. (Haque et al 2002; Bangladesh National Women Lawyers’ Association 2001; Hashmi 2000).
An Asia Foundation report illuminates the case of a young woman whose husband’s dowry demands led to his beating her and casting out of their home, adding the insult of severe social stigma to the injury of his physical assaults. She explains that a string of shalish sessions proved fruitless, and that the dynamic was such that “I could not speak up…I didn’t have the chance to say anything. ” (Haque et al 2002: 22). Nor do the power imbalances and victimization only materialize in the course of the shalish.
It often may prove too powerful, in the sense of imposing unfair judgments and punishments on women. Yet traditional shalish also can prove too weak to be of use to them, leaving them with only other unsatisfactory courses of action. An investigation by a respected human rights NGO illustrates such a situation, in the case of a fifteen year old girl seeking support for the child resulting from her rape by a neighbor’s son: When the salish gathered, [the father of the alleged rapist] organized a gang to break it up by using violence and money. It never reconvened.
Meanwhile, a lawyer was found to represent [the victim] but it soon became obvious that he was taking advantage of a poor woman and her daughter by taking money from them and doing nothing in return. (Odhikar 2001: 59) Biases and power imbalances do not only affect women. Hashmi describes a “member-matbar-mulla” triumvirate that controls village affairs, including shalish: The members of the Union Parishad (the lowest electoral unit) are elected officials, in charge of the disbursement of public goods and relief materials among the poor villagers, are the most powerful in the triumvirate.
They are often connected with the ruling political party of other influential power-brokers in the neighboring towns or groups of villages. The matbars (matabbars) or village elders, who also sit on the salish (village court), are next in the hierarchy, having vested interests in the village economy as rentiers and moneylenders. They often get shares in misappropriated relief goods along with government officials and members-chairmen of the Union Parishads.
The mulla, associated with the local mosques and maktabs (elementary religious schools), are sometimes quite influential as they endorse the activities of village elders albeit in the name of Islamic or Sharia law. The often sit on the salish and issue fatwas in support of their patrons, the village elders. The rural poor, often women, are victims of these fatwas. (2000: 137) One need not fully concur with the picture Hashmi paints here (which takes on far more nuance as his analysis unfolds) to infer its implications for traditional shalish, even where the gender dimension is not involved.
Where an influential individual’s interests are at play, the process can become distorted. It also can be biased due to patron-client relations: if a disputant is a political, personal or financial client of a shalish panel member (which can often be the case, since disputants often are poor and the panel members affluent), the latter might use his influence on the client’s behalf. In his own thoughtful review of the literature, Blair echoes Hashmi in concluding that “social science analyses [of traditional shalish] are sobering. (2003:18) Research suggests that the above factors combine to make NGO shalish the most effective form in delivering a degree of justice and alleviating poverty. In their report for the Asia Foundation, Haque and her colleagues conclude that “NGO-administered shalish are far more equitable in their treatment of women than the traditional and UP shalish. ” (2002: 9) In the great majority of its 23 case studies, women were satisfied or very satisfied with their NGO shalish.
Conversely, many had unproductive experiences with traditional or government shalish before turning to the NGOs. In a few instances, in fact, traditional leaders or UP members themselves suggested that the women request an NGO to organize a shalish. Though not an absolutely unbiased source, since the Foundation has supported NGOs carrying out shalish, the report nevertheless does not attempt to portray the NGOs involved as unblemished or always successful, and carries some weight by using the voices of the affected women as much as possible. Local Studies
A recent inter-organizational review of the Barangay Justice System (mainly carried out by two organizations engaged in trying to strengthen the system) and an independent study respectively summarize many of its key features: At the forefront of this system is the punong barangay, an elected official who also acts as chief executive and as presiding officer of the local legislative council. Assisting the punong barangay is the Lupong Tagapamayapa (peace-seeking committee) composed of 10-20 persons…who are selected from among the residents of the village or working in the barangay…
A distinct character of the system is its informality and lawyers are banned in the entirety of the process. (Asia Foundation et al, undated: 1) Once the complaint is received, the PB [or another barangay official to whom the function may sometimes be delegated] will call both the respondent(s) and complainant(s), with their respective witnesses, to appear before him for a mediation of their conflicting interests.
If the PB fails, a date is set for the constitution of the conciliation panel pangkat [a three-member panel chosen from the Lupon members by the disputants or, if they cannot agree, the Punong Barangay that will hear both parties and their witnesses, simplify issues, and explore all possibilities for amicable settlement. Arbitration is also recognized as an ADR procedure under the Barangay Justice System, and parties can, at any stage of the proceedings, agree in writing that they shall abide by the arbitration award of the Punong Barangay or conciliation panel. Rojo 2002: 25) An agreement that the parties reach through mediation or arbitration is legally binding on them: it can be enforced by the courts. On the other hand, the BJS jurisdiction is limited in a number of ways. It only can hear disputes between members of the same barangay or of neighboring barangays. Where the conflict has criminal implications, the Barangay Justice System can only handle it if the penalties do not exceed a year in prison or a fine of 5,000 pesos (about 60 pounds).
Crimes committed by government personnel in the course of their official functions cannot be submitted to the Barangay Justice System, nor can agrarian disputes (for which separate processes have been established) or crimes having no offended parties. As explained by the above inter-organizational review, when the Barangay Justice System was launched in 1978, “its overriding objective was to decongest the courts of cases brought before it. (1) It advances this objective through the requirement that civil disputes cannot be referred to the courts unless the barangay captain certifies that resolution has been attempted through the BJS. It contributes to this objective, though whether it actually succeeds is another matter. While the Philippine judiciary remains swamped by cases and delay, the BJS did handle almost 279,115 disputes in 1998, settling 84 percent of them. (136) The review further claims that “it is also a known fact that there are many undocumented disputes being handled and resolved under the Barangay Justice System. (136) According to the review, “Another avowed objective of the BJS is its recognition of indigenous modes of dispute resolution born out of tradition and culture…Time honored traditions based on kinship, utang na loob (debt of gratitude), padrino (godfather), pakikisama (comradeship) and community mores define how justice is to be served. ” These “time-honored traditions” constitute a double-edged sword in advancing what the review considers a third objective of the BJS: access to justice.
Though the report puts them forward without any apparent sense of irony or ambivalence, they can detract from access to justice under many circumstances, rather than improve it. These traditions all establish special links which can bias the barangay captain or Lupon members. In fact, in summing up other sources’ research the report acknowledges that sometimes “personal biases of the barangay captain emerge. Thus, there were cases [in which] one faction of the village is favored over another, or those who offend the barangay captain are punished…[Furthermore,] in gender-related issues, the male perspective of the dispute prevails. Independent assessments of the Barangay Justice System reach similar conclusions, suggesting that the political status of the barangay captain and Lupon members render their neutrality suspect. (Rojo 2002; Abaya 2000) Echoing other analysts’ broader assessments of the Philippine polity, (Wurfel 1988; Steinberg 1990) Rojo summarizes how the underlying political economy of the society affects the BJS: In the Philippines…social relationships are predominantly based on a patron-client logic, where affectivity becomes the prior guiding force.
It is therefore a society that functions according to a political clientelist model, characterized by a personalized, affective and reciprocal relationship between actors with very unequal degree of resources… The role of the local elites, as a result, is to…serve as the patrons to a local constituency, representing the intermediary layer between the central government and the voters.
Moreover, it is important to highlight that these patron-client relations are not necessarily smooth in nature, and in many cases, violence, coercion and fraud are strongly present… [This has] an extreme impact on the dynamics of local justice administration. Local elites at the barangay level will always have sufficient power to manipulate the dispute settlement process, and even to discourage poor and disadvantaged people [from participating]…Surveys indicate that a majority of community residents believe the settlement of disputes is influenced by politics, which is often mentioned as one of the main concerns. 30-31) Despite the surveys to which the report alludes (but does not cite), as well as 1999 survey results indicating that over a quarter of those dissatisfied with the Barangay Justice System identified favoritism as a factor (Asia Foundation et al, undated), other research indicates some acceptance of the system. The fact that it handled nearly 280,000 disputes in 1998, with most of them resolved, is at least prima facie evidence of such acceptance.
Nevertheless, we should be open to the possibility that some disputants chose the BJS out of lack of alternatives (such as for those who cannot afford to litigate) or due to inappropriate influence (such as where a woman is pressured by her husband, family or community to abstain from seeking judicial relief). This is not to suggest that favoritism, pressure or lack of resources always influences outcomes, in terms of influence generated by or on mediators to push resolution in certain directions. But given the underlying nature of the Philippine polity, such a phenomenon should not be considered rare.
Another indicator of popular acceptance of the system can be found in a 1999 national survey that included those who were BJS complainants and respondents. Within the former category, 67 percent were satisfied with the system, versus 28 percent dissatisfied. Within the latter, the results were 44 percent versus 46 percent. (Asia Foundation et al, undated: 76-77) While the results are mildly promising, the survey size for complainants and respondents is not clear. In addition, we should be aware of the possibility of respondents in these surveys to provide answers that they believe interviewers want to hear.
Synthesis of the Reviewed Related Studies and the Present Study As with many aspects of Safety, Security and Accessible Justice (SSAJ), there is a dearth of hard data that can inform decision-making concerning non-state justice systems. At least in Bangladesh and the Philippines, the development community does not know whether the various forms of Non-State Justice System (NSJS) tend to impose unfair processes and settlements flowing from power imbalances or whether they more typically tend to offer imperfect but still-valuable vehicles for the poor.
In other words, which is the exception and which is the rule? The research may reveal a mixture of tendencies, but also should produce nuanced findings that inform the work of Department for International Development (DFID). Properly disseminated, the findings may take on significant added value in terms of influencing the thinking and programs of the broader development community. Department for International Development accordingly should support both qualitative and quantitative studies indicating the current state of Non-State Justice System.
It also should fund research illuminating whether and how Non-State Justice System activity it supports (or considers supporting) is having an impact on Safety, Security and Accessible Justice and broader poverty alleviation goals. At least two broad, additional preliminary considerations should inform this research. The first is ethical. Some research proposed here involves observation of situations that, if they so choose, researchers could influence (probably, though not necessarily, for the better) by exercising their superior knowledge of state law or by their status as educated individuals.
Other studies involve interviews with persons who may offer questions as well as answers. Is it ethical to refrain from assistance under such circumstances? There are ways of striking a balance—certainly, the academic and development communities do so all the time (though how well is another matter). Another powerful argument for these studies, of course, is whether it is ethical not to do such research in exploring whether and how to work with NSJS, and, much more broadly, whether the dearth of applied research across the spectrum of law and development work reflects an unethical approach.
An overlapping consideration is the practical one of how methodologically sound this research must be. It of course needs to be informed by careful planning that brings into the picture expertise that reaches beyond the legal community. But it is important to bear in mind the experimental nature of these inquiries: they will themselves constitute learning experiences about how to employ applied research to NSJS, so as to yield findings with practical applications. In carrying out these
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