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close this bookPeasants' Pursuit of Outside Alliances in the Process of Land Reform: A Discussion of Legal Assistance Programmes in Bangladesh and the Philippines (UNRISD, 1999, 40 p.)
close this folderI. INTRODUCTION*
View the document(introduction...)
View the documentPeasants' Need for External Support
View the documentPeasants' Legal Needs
View the documentAre Lawyers Reliable Allies?
View the documentLawyers' Ability to Assist Peasants

Peasants' Legal Needs

The land question is essentially political. In most developing countries, those who possess most of the cultivated, fertile land hold most of the political power as well. Moreover, government policies concerning the use and management of uncultivated land and access to other common property resources frequently reflect the interests of dominant social groups. Powerful landowners can thus avoid, delay or make land redistribution measures ineffective through legal loopholes or outright manipulation of legal and political systems. They tend to have influential allies in high places, at times even outside the country. They may skilfully employ reasoning that conforms to the approaches, methods and interests of multinational companies, banks and most bilateral and multilateral agencies. Their arguments may include the higher potential productivity of larger farms and their capacity to generate foreign exchange through cultivation of cash crops, or the need to retain large, consolidated land areas for the development of agro-processing zones, for example. Indeed, such explanations also provide the national landed classes and agro-industries a convenient alibi for their continued hold over large tracts of land or, in some cases, for new claims over subsidized public lands even after land reform measures have been introduced. Clearly, land reform legislation alone can do little to change the existing power structure and wider political, economic processes. It can help, however - especially when there is strong popular mobilization at the local level combined with a supportive national and international environment.

In recent years, some attempts have been made to portray agrarian reform and access to land as fundamental human rights (see for example, HUNGRY For What is Right). But land rights have been marginalized in the human rights discourse, where they are eclipsed by cases of torture and lack of general civil and political rights.1 In many cases, however, human rights violations are linked to the absence of land rights in rural areas (see, for example, Plant, 1993). Peasants are victims of human rights violations especially when they try to reclaim or validate their land rights through actions such as squatting, claiming property or crops, or bringing to public attention cases of government mismanagement and corruption, exploitation by landowners, displacement by cash crop plantations and so forth. These actions make them targets of physical and legal harassment, and sometimes imprisonment. Human rights activists, lawyers and other concerned actors can help increase peasants' awareness of their rights and defend them when their rights are violated. Peasants' legal needs are vast, but due to their other pressing needs they may not consider their legal requirements priorities at all times. Nevertheless, if legal assistance is available to peasants during times of land conflict, potential hardship may be avoided.

1 In 1997, the United Nations Economic and Social Council (ECOSOC) Commission on Human Rights convened a Sub-Commission on the Prevention of Discrimination and Protection of Minorities. An Expert Seminar held in Geneva in June 1997 discussed forced evictions and emphasized the obligation of the state to provide security of tenure, as well as protection, in cases of unjust forced eviction, with "special consideration given to the rights of indigenous peoples, children and women and other vulnerable groups" (E/CN.4/Sub.2/1997/7). The landless, tenants and agricultural labourers were not mentioned.

Gross violations of peasants' human rights (death, imprisonment, police and landowner harassment, unfair labour conditions, etc.) tend to go unnoticed by many human rights advocacy groups. Amnesty International, for example, advocates human rights protection but rarely, if ever, mentions violations of the land rights of the rural poor in developing countries and the food and livelihood insecurity that may result.

Land and legal issues are thus intimately related. For example, activities linked to access to land; its use, possession and ownership; the sharing of its produce/rents; and land transactions and sales must adhere to legal principles if they are to be fair and take place smoothly. These legal principles may be customary or modern, and in reality they have tended to be a mixture of both.

Wide differences exist among countries in legal codes, traditions and social structures. Peasants' legal needs seem to be substantial in most contexts. In the context of land reform, the type of legal assistance sought and expertise available, as well as legal education and training, and the financial and technical inputs required for action, may differ significantly from country to country.

Legal aid is important at all stages of land reform - from identification of land that might be made available, to negotiation, to acquisition. Direct actions by peasants such as land invasion often provoke retaliation from landowners for which marginalized groups need legal support. Legal protection is especially crucial in actions against eviction of tenants or exploitation of agricultural labourers by their employers. Disagreements between the landowners and tenants on rents, taxes and other obligations may result in the landowner taking the case to the police, local administration or court. Tenants and labourers need legal advice and support if their interests are to be effectively defended. Conflicts between landowners and tenants could be prevented or better handled if conscientious lawyers set up locally agreed-upon mechanisms of arbitration or dispute resolution. This might make it unnecessary for poorer peasants to go to higher courts, and result in saving money and time.

One major problem in this context is that peasants are generally unaware of many legal aspects of land issues - in part because land laws tend to be complicated and may change frequently. When peasants are ill-informed about land laws, reform measures, their rights and what they stand to gain from reform, misunderstandings are likely and disputes may occur. Raising peasants' legal awareness is crucial during the land redistribution process and during the post-land reform period. For example, they must be made aware of their legal obligation to repay loans obtained to purchase land or agricultural inputs. Indebted peasants, who may have used their land as collateral for a loan, must also be made aware of their own legitimate rights and of the possible legal manoeuvres of their adversaries. They must know how to protect their land from unscrupulous land speculators, moneylenders and merchants if they are to preserve any gains obtained through land reform.

In addition to human rights and legal organizations, development NGOs, peasant organizations and other progressive civic associations, the state may also provide legal support to peasants. The state promulgates new land laws, seeks to implement them effectively and judge conflicts, and in doing so it may aim to reflect the interests of marginalized groups. In order to provide legal assistance to the land-aspiring rural poor, the state can mobilize the resources necessary to create new legal institutions, recruit lawyers and paralegals, organize training programmes, disseminate information and promote community-level legal education. In Bangladesh and the Philippines, for example, as will be seen below, the effectiveness of legal support services and systems at the local level has depended upon a solid country-wide legal framework, whether or not the state attached importance to initiating assistance measures and programmes.