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Good evening classmates.

Our group will be reporting on Restorative justice and


its application and relation with a few of our current laws. We will start with a brief
definition on Restorative Justice and then proceed to compare it with different
laws such as Criminal law, the Katarungang Pambarangay Law, the Law on
Alternative Dispute Resolution and finally the Juvenile Justice and Welfare Act.
What is Restorative Justice?
Restorative Justice seeks to balance the concerns of the victim
and the community with the need to reintegrate the offender into
society. It seeks to assist the recovery of the victim and enable all
parties with a stake in the justice process to participate fruitfully in
it. (Restorative Justice Consortium)
There are numerous definitions of restorative justice scattered throughout the
internet. However, the all the definitions are similar in the respect that they
involve three parties. The three parties are namely:
1. The victim
2. The offender
3. The community or the mediator
Restorative Justice Vs Criminal Law
The main difference in the two is the purpose . In criminal law we adhere to the
classical theory which means that crimes arise out of human free will. As
individuals we are conscious beings and inherently aware of our actions. We know
if an act is good or evil and whether such actions are criminal in nature or not. If
we have committed a crime and it is duly proven we are punished accordingly by
the state in exercise of its police power. That is the law. Why are we punished? As
said earlier, since we adhere to the classical theory the purpose of such penalty is
retribution by the state. Criminal law focuses on punishment of crimes. If you
have committed robbery the court will apply the penalty for robbery as stated in
the RPC. That is the essence of criminal law.
Now in restorative justice, if you have committed the crime of robbery what
happens? First of all, you will not be penalized under the RPC. Why? Because the
purpose of Restorative justice is to avoid criminal prosecution. So no criminal
prosecution, but there will be intervention or mediation because restorative
justice focuses on repairing relationships.
What relationships?
First, is the relationship between the victim and the offender. Even if they did not
know each other prior to the robbery, they will become involved through the
mediation process. Second, is the relationship between the offender and the
community. Through the mediation process, the parties will discuss the personal

circumstances and motives of the offender, his accountability and how he shall
make amends for the wrong committed. The process ends with the offending
party making restitution for his crime and undergoing rehabilitation or
reintegration programs. It may be in the form of community service or similar
programs.
The focal point in restorative justice is the parties. The involvement of the victim,
offender and community/mediator is mandatory. Whereas criminal law delves into
whether or not a crime has been committed. That is why the procedure in
restorative justice and criminal law is very different.
Usually, once a criminal complaint has been filed all that is left to do is to
determine whether all the essential elements of the crime are present and if they
are, to apply the corresponding penalty to the accused. When a crime is
committed, criminal procedure dictates all the steps in which the accused is to
undergo. The entire process is very time consuming and strict as to the procedure
to be followed.
In Restorative justice there is no trial proper, because there is already an
admission of guilt by the offending party to the act complained of. So we
dispense with all the rules of criminal procedure such as preliminary investigation,
inquest proceedings, pre-trial, etc. There is no need because of the admission of
guilt by the accused. The only proceedings to undergo are the mediation
proceedings and subsequent entry of the offender into rehabilitation programs.

Restorative Justice vs Barangay Conciliation Act.


The Katarungang Pambarangay Law provides for the settlement of
disputes between individual residents of the same city or municipality,
thru mediation, arbitration or conciliation, before the Katarungang
Pambarangay. Compliance therewith is a condition precedent to the
filing of a complaint or information in court or before the Fiscals Office,
and its absence is a ground for dismissal of the complaint for
prematurity or absence of a cause of action.
There are some similarities between barangay conciliation and restorative justice.
First, it similar in the fact that the victim and offender subject themselves to
mediation by a third party. Second, its purpose is to amicably settle the dispute at
the current level so that there is no longer a formal complaint filed against the
offender. Finally, the participation of lawyers in the proceedings are not allowed.
This allows for a more informal and relaxing environment for the parties. In short,
what is similar is only the procedure between the two.
The provisions on barangay conciliation proceedings is what makes it vastly
different to restorative justice. First, barangay conciliation is subject to many
limitations such as the nature of the offense committed and whether the residents
are residents of the same barangay or not. Second, is the time to reach an
amicable settlement. It is restricted up to 30 days in the most meritorious cases in
Barangay conciliation; while in actual restorative justice cases, the meetings may
last up to 12 weeks before reaching a final resolution.
The primary purpose of barangay conciliation is merely to unclog court dockets
and to have residents settle their disputes with least amount of intervention
possible from the courts. They have no concern on whether or not the status quo
is restored among the parties which is the very purpose of restorative justice.
There is really no similarity because there is no mending of relationships between
barangay conciliation proceedings which is an essential element in cases of
restorative justice.
Restorative Justice vs Alternative Dispute Resolution
Alternative Dispute Resolution System means any process or procedure
used to resolve a dispute or controversy, other than by adjudication of a
presiding judge of a court or an officer of a government agency, as
defined in this Act, in which a neutral third party participates to assist in
the resolution of issues, which includes arbitration, mediation,
conciliation, early neutral evaluation, mini-trial, or any combination
thereof.

We can see from the definition that just like in barangay conciliation, only the
process is the same in ADR compared to restorative justice. In all three, the
process is similar. There is mediation or conciliation. Aside from that, there is no
other similarity.
The issues or cases usually resolved through ADR revolve around obligations
arising from contracts, which is incompatible with the very essence of restorative
justice.
Why? This is because what usually happens in ADR cases is that a contract is
entered into between two parties. The type of contract does not matter, it can be
a contract of loan, lease, service, mortgage or whatever. Now in the contract,
there is a stipulation.
The parties, in the event of any breach of the provisions of the contract, shall
submit themselves to an arbitration committee or mediation proceedings.
So just from that stipulation, we can already say that restorative justice does not
apply. Why? Because when one of the parties are in breach of their contractual
obligations only civil liability is referred to mediation proceedings. You cannot
stipulate that a crime or criminal liability shall be referred to mediation
proceedings. That is expressly prohibited by law.
So, one party files an action for specific performance against the other in ADR
proceedings. Let's say to compel them to finish the construction of a house. The
mediator renders judgement and compels the other party to perform the act
prayed for and pay damages. That is it. There is only determination of civil liability
and nothing more in ADR proceedings.
There is no application of restorative justice in ADR proceedings because as
mentioned earlier, the purpose of restorative justice is to prevent the institution
criminal prosecution and instead opt for rehabilitation or restorative programs.

Juvenile Justice and Welfare Act (RA 9344)


Finally, we will discuss the Juvenile Justice and Welfare Act (RA 9344). This
law covers the different stages involving children at risk and children in conflict
with the law from prevention to rehabilitation and reintegration which is a perfect
example of the application of restorative justice in the Philippines.
What is the purpose of the law?
The objective of rehabilitation and reintegration of children in conflict with the law
is to provide them with interventions, approaches and strategies that will enable
them to improve their social functioning with the end goal of reintegration to their
families and as productive members of their communities.
To whom shall the law apply?
A child below 18 years of age who is in conflict with the law and has been taken
into custody by the proper authorities
What is the criminal liability of those covered under the law?
There is automatic suspension of sentence.
A child fifteen (15) years of age or under at the time of the commission of the
offense shall be exempt from criminal liability.
A child above fifteen (15) years but below eighteen (18) years of age shall likewise
be exempt from criminal liability and be subjected to an intervention program,
unless he/she has acted with discernment, in which case, such child shall be
subjected to the appropriate proceedings in accordance with this Act.
The exemption from criminal liability herein established does not include
exemption from civil liability, which shall be enforced in accordance with existing
laws.
Who are involved in the prevention of juvenile delinquency?
Established local councils for the protection of children and the Sangguniang
Kabataan shall coordinate and formulate juvenile intervention and diversion
programs.

What is diversion?
It is conferencing, mediation or conciliation outside the criminal justice system or
prior to his entry into said system. A contract of diversion may be entered into
during such conferencing, mediation or conciliation proceedings.
What are the considerations taken into account in a contract of
diversion?
(a) The nature and circumstances of the offense charged;
(b) The frequency and the severity of the act;
(c) The circumstances of the child (e.g. age, maturity, intelligence, etc.);
(d) The influence of the family and environment on the growth of the child;
(e) The reparation of injury to the victim;
(f) The weight of the evidence against the child;
(g) The safety of the community; and
(h) The best interest of the child.
(i) The child's feelings of remorse for the offense he/she committed;
(j) The parents' or legal guardians' ability to guide and supervise the child;
(k) The victim's view about the propriety of the measures to be imposed; and
(l) The availability of community-based programs for rehabilitation and
reintegration of the child.
What are the kinds of diversion programs?
Counseling for the child in conflict with the law and the child's family;
Attendance in trainings, seminars and lectures on:
(i) anger management skills;
(ii) problem solving and/or conflict resolution skills;
(iii) values formation; and
(iv) other skills which will aid the child in dealing with situations which can lead to
repetition of the offense;
(v)Participation in available community-based programs, including community
service; or
(vi) Participation in education, vocation and life skills programs.
What are the effects of a contract of diversion?
1. The development of a diversion program supervised and implemented by a
local social welfare officer.
2. The period of prescription of the offense shall be suspended until the
completion of the diversion proceedings but not to exceed forty-five (45) days.
3. The child shall present himself/herself to the competent authorities that
imposed the diversion program at least once a month for reporting and evaluation
of the effectiveness of the program.
4. There shall also be:
Restitution of property
Reparation of the damage caused;

Indemnification for consequential damages;


Written or oral apology

What happens to the child who finished the diversion program?


Discharge of the Child in Conflict with the Law upon the recommendation of the
social worker who has custody of the child, the court shall dismiss the case
against the child whose sentence has been suspended and against whom
disposition measures have been issued, and shall order the final discharge of the
child if it finds that the objective of the disposition measures have been fulfilled.

Bibliography
http://restorativejustice.pbworks.com/f/40_cases_final.pdf
http://www.cps.gov.uk/legal/p_to_r/restorative_justice/
http://www.lawphil.net/statutes/repacts/ra2004/ra_9285_2004.html
http://www.lawphil.net/statutes/repacts/ra2006/ra_9344_2006.html
http://www.lawphil.net/statutes/repacts/ra2004/ra_9285_2004.html

Restorative Justice

BY:
ALBERT BOLANTE
ARNOLD BACULI
ADRIAN VIVAS