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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

(introduction...)

* I am grateful to Uzma Hashmi for her assistance with literature analyses and her valuable comments.

Peasants' Need for External Support

Experience has shown that poor, weak rural social groups, such as small farmers, tenants and agricultural workers, require external support if their attempts to access productive land, secure formal titles and improve productivity through subsidized credits, use of appropriate technologies, markets and other facilities are to have any hopes of success. Examples of such alliances and actions by rural groups and stronger outsiders are not lacking, but many are spontaneous and rather short-lived.

On the whole, as Scott writes:

In the Third World it is rare for peasants to risk an outright confrontation with the authorities over taxes, cropping patterns, development policies, or onerous new laws; instead they are likely to nibble away at such policies by non-compliance, foot dragging, deception. In place of a land invasion, they prefer piecemeal squatting; in place of open mutiny, they prefer desertion; in place of attacks on public or private grain stores, they prefer pilfering. When such stratagems are abandoned in favor of more quixotic action, it is usually a sign of great desperation (1985:xvi).

Well co-ordinated, assertive and long-term direct action is thus seldom likely by those who are entirely occupied with the daily struggle for survival. In fact, peasants and other poorer rural groups may intentionally wish to avoid open confrontation with authorities and domineering landowners for fear of further repression. On the other hand, trustworthy external allies and assistance combined with growing consciousness and organization have strengthened peasant mobilization and action (cf. Huizer, 1980:1-5).

Reliable external allies and support are crucial if the livelihood interests of marginalized rural populations are to receive the attention of authorities and powerful landowners. Progressive administrators, technicians and politicians can help peasants mobilize around land issues. Genuine international solidarity and financial and technical assistance programmes are important as well. National and local farmers' associations, co-operatives and some development NGOs, academic centres, political parties, trade unions, and religious and professional organizations that interact with peasants and other rural groups on a sustained basis can assist peasants and the land-aspiring rural poor in the following five crucial areas.

First, these types of organizations can play an important role in mobilizing peasants and the rural poor. In many cases, marginalized groups may not be aware of land reform issues, including their rights, what they might gain from land reform and the actions that would be necessary to achieve their goals. Outsiders may assist by organizing self-help groups, literacy campaigns, leadership and training programmes, internal political mobilization, co-ordination of actions, networking and dissemination of useful information. They may also be able to influence the way land reform issues are portrayed in the mass media, lobby political parties, local governments and the bureaucracy, and organize the rural poor for direct electoral participation aimed at wider land reform and tenurial security. They may assist with organization of direct action campaigns, such as squatting on private or public land, removal of crops by tenants/sharecroppers from landowners' fields, pressuring officials and landowners for lower land rents or crop sharing, etc. Finally, these organizations may encourage debate and imaginative project planning concerning wider resource use options, comprehensive redistribution/restitution of cultivated land, flexible access to and use of common property resources, and security of tenure for indigenous peoples, women, pastoralists and fisherfolk.

Second, organizations and individuals concerned with social causes may work to acquire tenurial security and improved working conditions for marginalized rural groups. They can help identify available land and acquire formal title. They may be able to mobilize peasants and other sympathetic groups to oppose evictions of tenants and landless labourers by landowners. In some cases, they may mediate between landlords and tenants in disputes (e.g. written/customarily binding and longer lease contracts, lower rents or crop sharing, more equitable sharing of input costs). They may also make arrangements with authorities to take official steps to improve access to common property resources, and lease or rent terms.

Third, rural societies undergoing profound transformation are marked by a great deal of tension. Sympathetic outsiders may mediate internal conflicts of interest within the peasantry, as well as between peasants and other rural social groups and outside forces. Settlement of contentions between different rural groups - such as squatters and earlier tenants, small farmers and pastoralists, residents and migrants, small farmers and agricultural labourers, households selected and rejected for land redistribution - is complex but crucial. So is the prevention of conflicts across tenurial classes. Grassroots organizations and influential progressive individuals could help to resolve conflicts involving access to common property resources and expropriation of indigenous peoples' customary land rights. They could also provide assistance to peasants and other weaker rural social groups by assisting them in the development of skills for long-term crisis management.

The fourth key area where outsiders can be of assistance is in the identification of cases where the human rights of peasants have been violated. Such violations may include arbitrary evictions, injuries, or destruction of their crops, animals and houses. In addition to monitoring cases where peasants' basic human rights have been infringed upon, human rights activists, lawyers and legal aid services can defend individuals or groups in legal circles, or refer cases to a competent authority or independent human rights organization.

Fifth, providing marginalized rural groups with extension services - credits and loan guarantees, appropriate inputs and other services, as well as markets for outputs - in conjunction with land reform is as crucial as providing them with land in the first place. Outside forces can play an important role in organizing land reform beneficiaries into co-operatives, user groups, informal production bodies, etc. Their assistance is also likely to be vital in establishing land committees or other organizations for land improvement, erosion control, watershed protection schemes and sustainable agricultural practices. Monitoring of the living and working conditions of the beneficiaries is equally important, especially to verify that they hold onto their land, their production potential is fully exploited, and they do not become indebted.

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.

Are Lawyers Reliable Allies?

Various social groups and individuals may support peasant actions if perceived that they have been victims of social injustice. For example, local students may participate in peasants' protest rallies or land invasion activities. There may be some solidarity from urban and rural trade unions, although the former tend to be distant and the latter tend to be active where there is favourable political space and agricultural modernization has resulted in a class of agricultural labourers. Farmers' associations and co-operatives may also support peasant movements when their own interests are directly affected, but many of them may be controlled by rich farmers and local elites. Political parties may also support peasants' movements on a long-term basis, but in some cases peasants may simply be considered as "vote banks", or local authorities and landowners may repress peasant movements when the latter seek alliances with underground political parties. Rich or middle class farmers may form alliances with peasants when they perceive a common interest, such as reduced land taxes or higher crop prices. Their interests are likely to diverge, however, over peasant demands for greater access to land or tenurial security. Professional groups or individuals, such as development NGOs, teachers, human rights activists, lawyers and extension specialists, may have few interests in common with peasant groups, although some may be truly concerned about social inequality and improving peasants' welfare.

Lawyers, as an occupational or economic category, are not usually a socially oriented voluntary group (as community development workers, priests or teachers, might be, for example.) Most lawyers have few contacts with ordinary peasants and agricultural labourers, who are unlikely to be considered promising clients. It is usually peasants who need lawyers; lawyers seldom need peasants!

Most lawyers provide their advice and assistance on the basis of a negotiated fee, seeking maximum remuneration that peasants would frequently be unable to provide. Peasants may avoid seeking legal advice for this reason. Peasants may also be victims of deceitful lawyers who claim money, labour or produce from peasants but provide little in return. Some lawyers, allies of rich and powerful groups opposed to peasant issues, can be one of the worst enemies of peasants when they defend the interests of landlords, moneylenders, merchants and agri-business. The majority of lawyers in developing countries provide their services and assistance to those groups which are able to compensate them generously. This may not be surprising, as the majority of lawyers tend to come from the elite classes.

But lawyers can be fine allies when they are supportive of peasants' interests and aspirations, or when their own interests coincide with those of peasants. Certain lawyers and legal associations may build rural constituencies to acquire national or foreign recognition of their work or to attract outside funding. Recent graduates from law colleges and universities may find it difficult to get jobs in urban areas and may therefore begin their careers in rural areas. For lawyers who have political ambitions, peasants may be reliable supporters. And lawyers harassed by repressive regimes because of their origins or beliefs may find that alliances with peasants and rural workers aid their own self-protection. Of course, under repressive regimes, lawyers may distance themselves from rebellious peasants and workers for fear of persecution. Unfortunately, this means that legal assistance may not be available for peasants and rural workers when they need it the most.

Whether or not peasants and rural workers can count lawyers among their allies depends upon specific socio-economic and political contexts. It is difficult to establish a typology of situations or outcomes. Rural conflicts and the mechanisms for their resolution vary depending on place and time. Likewise, the type and quantity of legal aid required also varies. Generalizations about legal needs across countries and poor rural social groups is scarcely helpful if specific policy measures are to be formulated.

Lawyers' Ability to Assist Peasants

Lawyers can play a crucial role in ensuring that peasants receive legal information and that laws granting them specific rights and resources are enforced in their favour. Due to high rates of rural illiteracy and difficulty in accessing information, legal expertise is generally absent in rural areas - especially when it comes to the interpretation and application of modern land laws. Indeed, some specialists have argued that legal activities should not be the exclusive prerogative of lawyers and judges as many of the public policies, legislation and legal cases directly affect the ordinary people and groups. Furthermore, they emphasize that laws should not aim only to defend the interests of the poor or the disadvantaged, but rather to eliminate the structural causes that underlie their condition (Soliman, 1987:46-47).

During the late 1980s, the International Commission of Jurists (ICJ), an international association of independent lawyers, held a series of seminars in South Asia, South-East Asia and Latin America, focusing on the role of lawyers and legal services for the poor in rural areas. These seminars assessed rural legal services and encouraged debate and reflection on the role of lawyers in rural development. The term "legal services" was preferred to legal aid, as it "encompasses training of paralegals, the production of simplified legal materials and information dissemination, counselling, mediation and negotiation" (ICJ, 1997:15).

All seminars pointed to the poor provision of legal services in rural areas. In Peru and Colombia, for example, government legal services are concentrated in urban areas, making it difficult for the rural poor to access them. A second problem, confronted by indigenous peoples (often a significant proportion of rural populations) who have lost customary lands, was a feeling of alienation as a result of linguistic and cultural differences. This often leads to their marginalization in the few legal aid programmes that do exist (see GarcSayan, 1987). The South and South-East Asian seminars brought out the social and geographical distance separating most lawyers from peasant issues, which may lead them to be viewed with suspicion rather than as potential allies in defending local interests. In all regions, however, the importance of having peasant organizations, NGOs, church groups and other local organizations incorporate legal services into their agendas was highlighted.

Many popularly oriented NGOs and local voluntary organizations are getting involved in "legal literacy" and awareness-raising campaigns, which use simple techniques such as translating laws into local languages, publishing information pamphlets and using theatre and rural radio programmes to disseminate information on land rights and legal assistance to the rural population. For example, the Association of Female Jurists in Cameroon discusses women's land rights on both radio and television. The AJAC/Z (Youth Association of the Ziquinchor Region in Senegal) translates laws and relevant documents from French into local languages and disseminates this information via seminars and workshops. The Society for Participatory Research in Asia (based in India) transcribes relevant land laws into accessible languages for rural legal activists and leaders. Casa Campesina in Peru holds radio and television discussions on legal aspects of agrarian questions.2

2 The above examples are based on responses to an UNRISD/IFAD questionnaire on land reform conducted in 1997.

Given the high cost of professional legal services, the training and use of paralegals has grown in recent years. For many NGOs this has been a way to avoid costly outside professional help yet still provide marginalized rural groups with some legal assistance. Paralegals are generally local actors (community leaders, social workers, teachers, law students, development workers, etc.) who receive training and education on legal questions and act as assistants to lawyers in locating evidence and other information that might be necessary to defend their case. They may also conduct research on certain cases and provide referrals to lawyers where necessary. Furthermore, they often play a wider social role, mediating conflictual situations, mobilizing communities and assisting in the establishment of people's organizations (Ravindran, 1988:7). Their role in society can potentially encompass far more than a lawyer's, and because they come from local areas they are often deemed more credible than outsiders. Because they may be more aware of customary law and can thus use it where applicable, their approach may be more flexible.

Lawyers may play a central role in training paralegals, however, as may social workers, academics (sociologists, psychologists, etc.) and others (ICJ, 1997). Paralegals are often hired by local organizations or are requested to assist on a voluntary basis, although the latter appears to be rare.

The fact that pay is less, and rewards in terms of other material and social gains fewer, may dissuade lawyers from providing legal services to the rural poor. Dias, in his discussion of obstacles facing "law as a resource for the poor" in South-East Asia, points to the desire by lawyers to monopolize information and knowledge on legal matters (1987:27-42). In other words, they may fear losing their professional hegemony of knowledge about land legislation. According to this specialist, rural communities and individuals require lawyers to impart a degree of information and skills.

However, lawyers do sometimes get involved in local legal service programmes. A noteworthy case is the Legal Resource Foundation (LRF) in Zimbabwe, a non-profit organization whose board of trustees includes a former Chief Justice, a Supreme Court Judge, as well as other prominent lawyers (Coltart, 1993). The foundation's lawyers actively train paralegals, provide legal advice, carry out research and litigate in public interest cases through Legal Project Centres set up in rural areas. In order to overcome resistance by lawyers who might perceive the group's activities as potential competition, the LRF formulates and implements its programmes in close collaboration with the Law Society of Zimbabwe (Cottart, 1993).

Similarly, the Legal Resources Centre (LRC) is one of eight legal institutions in South Africa helping the urban and rural poor in land restitution cases. It represents poor black communities in land conflicts, contending land claims in protected areas and the provision of formal titles. It also provides legal education and training on subjects including acquisition of land, subsidies for land purchase and loan repayment (LRC, 1995). But demands for legal services are much greater than LRC and other organizations are able to offer (personal communication with a lawyer working for LRC, October 1997); significant conflicts over land-related issues and land reform persist in the country.

In the Philippines, Structural Alternative Legal Assistance for Grassroots (SALAG), was formed as a "socio-legal action group" (Valera et al., 1987:54) aimed at providing an expanded legal assistance programme to the marginalized sectors of Philippine society (Valera et al., 1987:56). SALAG works to empower local rural populations to be active participants in the legal process, rather than simple clients dependent on lawyers. The group provides legal assistance and non-formal legal education; networks with other NGOs, people's organizations (POs) and government organizations (GOs); and organizes an apprenticeship programme to sensitize law students to rural issues (Valera et al., 1987).

Although there are examples of lawyers and legal institutions working to protect peasant rights, enforce laws that support the claims of the rural poor - to land, agricultural extension services or other resources - and prevent the "appropriation" of law by those with more political, social and economic clout, many such attempts are not wholly effective. The individuals and institutions so inclined usually lack human and financial resources and are thus able to cover only a small number of cases. Some may have promising beginnings but fail as a result of diminishing capacity - although most of the time this is due to factors beyond their control (lack of funding, for example) rather than absence of will. Also, their energies may be diluted through pressures to include activities more solicited by donor agencies. Some of these issues are considered in the following discussion.