What is restorative justice?

Restorative justice is a theory of justice that emphasizes repairing the harm caused or
revealed by criminal behaviour. It is best accomplished through cooperative processes that
include all stakeholders.

Practices and programs reflecting restorative purposes will respond to crime by:

1. identifying and taking steps to repair harm,  

2. involving all  stakeholders, and
3. transforming the traditional relationship between communities and their governments
in responding to crime.

Some of the programmes and outcomes typically identified with restorative justice include:

 Victim offender mediation

 Conferencing
 Circles
 Victim assistance
 Ex-offender assistance
 Restitution
 Community service

Three principles form the foundation for restorative justice:

1. Justice requires that we work to restore those who have been injured.
2. Those most directly involved and affected by crime should have the opportunity to
participate fully in the response if they wish.
3. Government's role is to preserve a just public order, and the community's is to build
and maintain a just peace.

Restorative programmes are characterized by four key values:

1. Encounter:  Create opportunities for victims, offenders and community members who
want to do so to meet to discuss the crime and its aftermath
2. Amends:  Expect offenders to take steps to repair the harm they have caused
3. Reintegration:  Seek to restore victims and offenders  to whole, contributing members
of society
4. Inclusion:  Provide opportunities for parties with a stake in a specific crime to
participate in its resolution

RESTORATIVE JUSTICE
Legal Framework and Practices in the Philippines
FOREWORD

The involvement of the Philippine Human Rights Information Center in the campaign to
abolish the death penalty in the Philippines has expanded the institution’s human rights
advocacy. Its engagement with the State in having Republic Act 7659 or the Death Penalty
Law abolished has deepened its understanding of the character and dynamics of the
Philippine criminal justice system, particularly its punitive and retributive orientation.

Exposure to the weaknesses and defects of the Philippine criminal justice system and its
bias against the economically disadvantaged members of society has convinced PhilRights
of the need to work towards the re-orientation of the current system and the importance of
exploring available alternatives to its punitive and retributive nature. Thus, the institution, in
collaboration with the Ateneo de Manila Human Rights Center (AHRC), embarked on an
exploratory study on restorative justice as a viable option that can be developed and
eventually mainstreamed in the Philippine criminal justice system.

As indicated in the study objectives, the research is an initial effort of PhilRights to determine
existing laws, practices, structures and mechanisms, both in the dominant criminal justice
system and in indigenous communities, that contain elements or features of restorative
justice and how these can be further enhanced and expanded.

It is the intention of the institution that with this study, we can identify areas for changes and
innovations that will ultimately result in the re-orientation of the Philippine criminal justice
system, one that is based on a restorative justice framework and consistently guided by and
anchored on human rights principles and standards.

PhilRights is aware that the abolition of the death penalty in the country is but an initial step
in the long and arduous struggle in instituting meaningful reforms in the Philippine criminal
justice system. We believe that with this publication, we are taking another step towards that
direction, and we encourage others to join us in this journey.

Nymia Pimentel Simbulan, Dr PH

Executive Director
December 2006

PREFACE

Even if viewed as a newly-emerging response to the problems of crime and criminality,

restorative justice has had a long history of application and practice. This study looks at the
country’s criminal and penal regimes in order to locate the embryonic stages of restorative
justice principles in its formal laws and indigenous modes of conflict management.

The study starts out with a discussion on the concept of restorative justice, from its
precursors among all the major ancient civilizations, to the modern concept as it is presently
advocated worldwide. The experiences of New Zealand and Canada, two of the major front-
runners in the swing towards the restorative ethos, are presented.

The chapters on the Philippine criminal justice system, while providing an abbreviated look
at the country’s imperfect judicial system, also point out that the introduction of a better (that
is, restorative) framework is not at all impossible. Briefly, laws that are not inconsistent with
restorative justice principles are reviewed, among them, the Katarungang Pambarangay
Law, the Indigenous Peoples’ Rights Act, the Alternative Dispute Resolution Act and the new
Juvenile Justice Law.
Having looked at the laws, the study then pinpoints the rudimentary workings of restorative
justice as lived realities in the grassroots, specifically as practiced by the Katarungang
Pambarangay’s Lupong Tagapamayapa and the indigenous peoples of the Cordilleras and
Mindanao. A major portion of the book consists of case studies of conflict resolution and
dispute settlement as applied by the communities in Besao, Mt. Province and Buguias,
Benguet (for indigenous communities in northern Luzon), and the Maguindanaons of Sultan
Kudarat and Mamasapano in Maguindanao province and Tedurays (for indigenous
communities in Mindanao). While restorative justice as formally defined may not be explicitly
enunciated in the process and outcome of grassroots (barangay and indigenous community)
judicial processes, the promise of a healing kind of justice is not too improbable. No matter
how rudimentary, some form of restorative justice somehow arches over the judicial practice
among the indigenous peoples and in those areas where the Katarungang Pambarangay is
fully functional.

The study notes that the Revised Penal Code is the major stumbling block to the
mainstreaming of a healing brand of justice. As long as the RPC and the criminal justice
system operate within an adversarial framework, restorative justice cannot take a firm
foothold. The RPC notwithstanding, other laws have incorporated restorative principles. The
newly minted Juvenile Justice Law of 2006, for example, articulates restorative justice ideas.
Also, with the Katarungang Pambarangay and the dynamic mechanisms among indigenous
peoples that are both informed – to a certain extent – by a healing kind of justice, it is not far-
fetched to expect the transformation of the methods of justice in the country.

In the final chapter, policy recommendations are spelled out, to allow restorative justice to
make inroads into the punitive nature of the Philippine justice system.

INTRODUCTION

The Philippine Human Rights and Information Center (PhilRights) is the research and
information service arm of the Philippine Alliance of Human Advocates (PAHRA).
Established in July 1991, it has been active in the campaign to abolish the death penalty
through the network of Mamamayang Tutol Sa Bitay – Movement for Restorative Justice
(MTB-MRJ) which it serves as secretariat.

MTB-MRJ is a network of more than fifty (50) people’s organizations, non-governmental

organizations, government agencies and other human rights institutions advocating for the
repeal of the death penalty law. The MTB-MRJ includes among its members the Ateneo
Human Rights Center (AHRC), a university-based institution engaged in the promotion and
protection of human rights in the Philippines.

To strengthen the campaign for the abolition of the death penalty and the institutionalization
of restorative justice as an alternative to the present criminal justice system, PhilRights
engaged AHRC to undertake a study on the practice of restorative justice in the country.

Although the campaign is primarily geared towards the abolition of the death penalty, MTB-
MRJ is also seeking to introduce long term reforms in the entire criminal justice system of
the Philippines. The network is also pushing forward the campaign on restorative justice
system, which is the framework by which the anti-death penalty advocacy is anchored upon.

The prevailing justice system in the country is punitive and retributive in nature.  As such, it
allows little room for genuine healing. On the other hand, the restorative justice system,
while recognizing that crimes are wrong and should be prevented, also acknowledges that
these are primarily offenses against human relationships. The fact that these are violations
of existing laws comes as only secondary to this consideration.
Contrary to human rights principles and standards, the punitive and retributive nature of the
Philippine criminal justice system poses major obstacles and difficulties in enabling the State
to respect and protect the human rights of its citizens, both offenders and victims of crimes.
Abusive law enforcement agencies, expensive and prolonged litigation processes, corrupt
and incompetent prosecutors and judges, inhuman and cruel treatment of prisoners, and
many other flaws and weaknesses in the justice system are just a few of the common
problems suffered by ordinary citizens in their quest for justice and reparation. Money,
connections and power are among the key elements which determine and define what kind
of justice will be served and how soon it will be granted. Thus, consistently, the criminal
justice system has worked against the interests and violated the rights of the poor and the
marginalized members of society.

Furthermore, the country’s criminal justice system has been anchored on the values of
revenge and retribution and has put prime importance to punishment and maintenance of
law and order. The promotion of human dignity in the resolution of crimes has been a
secondary concern, if not an afterthought. Apprehending and punishing criminals at all cost
have been the overriding concern since this is viewed as the means to stop the proliferation
of crimes and to demonstrate the toughness of the State in dealing with offenders.

State accountability with respect to the safety and security of its citizens and the creation of
an enabling environment for the enjoyment of human rights has likewise been shunted
aside, since the focus is on the nature of the offense/crime and the commensurate
punishment for it.

Inasmuch as restorative justice is viewed as a newly-emerging response to the problems of

crime and criminality, particularly in the Philippines, there is a need to clarify the concept and
bring it within the grasp of its potential beneficiaries, and the general public.

This study discusses the concept of restorative justice including the theories behind it. It
identifies existing laws, structures and mechanisms which contain principles and tenets of
restorative justice within the present criminal justice system. It also determines possible
areas where restorative justice can be further integrated and/or substituted as an alternative
to the current punitive system.

The study, however, limits itself to a review of the major laws and institutions dealing with
offenses which either embody principles of restorative justice in their framework or use the
latter as a process. Other forms of conciliation or mediation which may be restorative in
nature in other fields of law have been excluded. The discussion and analysis of the gaps
and problem areas of the Philippine Criminal Justice System is likewise not exhaustive nor
extensive. However, it provides a general overview of the present opportunities, challenges
and practice of restorative justice.

Restorative justice processes, as practiced by the indigenous cultural communities and the
Katarungang Pambarangay, are likewise examined, specifically to identify areas where
principles of restorative justice may be further enhanced.

As regards indigenous practices, the focus is on the indigenous groups in the Cordillera
Administrative Region (CAR), particularly in the areas of Besao, Mountain Province and
Buguias, Benguet, and on the Maguindanaoans and Tedurays in Mindanao.

With regard to the case studies and practices of Indigenous Peoples, the focus of such was
more to identify practices which led to a settlement. The case studies, however, did not
analyze whether all of the practices were indeed in line with restorative justice principles.
Moreover, the cases presented here did not look into the impact of the settlement on the
victims and offenders alike. While it would have been informative to examine the impact of
case settlement on all the parties involved (victim, offender, their families, and their
community) and describe post-settlement developments, these are concerns that were
beyond the scope of the study.

To illustrate the restorative justice practices in the Katarungang Pambarangay system, four
(4) pilot barangays were scrutinized:

1.    Barangay Sta. Rita, Olongapo City (for Highly Urbanized Cities);
2.    Barangay Tenejero, Balanga City (for Component Cities);
3.    Barangay Pico, La Trinidad, Benguet (for 1st – 3rd Class Municipalities); and
4.    Barangay Lambayong, Tampakan, South Cotabato (for 4th-6th Class Municipalities).

All the four identified barangays have been consistent recipients of the Lupong
Tagapamayapa Incentives Award which was established by the Department of Interior and
Local Government to recognize the barangay’s exemplary performance and contribution in
promoting the Katarungang Pambarangay’s objectives. These barangays, therefore, are not
representative of what the rest of the Katarungang Pambarangays in the entire country have
accomplished in terms of applying restorative justice principles and processes. Being
Lupong Tagapamayapa Incentives awardees, these selected barangays represent the
extent to which the barangay justice system has implemented a restorative justice
framework in the Philippines.

CONTENTS

I.    Introduction

II.    The Concept of Restorative Justice

a.    The Pre-Modern Criminal Justice System
b.    The Modern Movement
c.    The Crystallization of a Modern Theory of Restorative Justice
d.    Restorative Justice
i.    Elements
ii.    Values
e.    Illustrative Practices
f.    Summary of Elements
g.    Restorative Justice and Human Rights

III.    The Philippine Criminal Justice System: An Overview

a.    Law Enforcement, Prosecution and the Courts
b.    Community
c.    Correctional Institutions
d.    Recovery and Restitution

IV.    Restorative Justice in the Current Legal Framework

a.    Criminal Law
i.    The Classical Approach
ii.    The Positivist Approach
b.    The Katarungang Pambarangay Law
c.    The Indigenous Peoples’ Rights Act
d.    The Alternative Dispute Resolution Act
e.    The Juvenile Justice Law
V.    Restorative Justice in Practice
a.    Katarungang Pambarangay
b.    Indigenous Peoples in the Cordillera
c.    Indigenous Peoples’ Groups in Mindanao

VI.    The Laws and Practices Through a Restorative Justice Lens

a.    Legal Framework
b.    Practices
i.    Indigenous Communities
ii.    Katarungang Pambarangay

VII.    Conclusions and Recommendations

Restorative justice

From Wikipedia, the free encyclopedia

Restorative justice (also sometimes called reparative justice[1]) is an approach to justice

that focuses on the needs of the victims and the offenders, as well as the involved
community, instead of satisfying abstract legal principles or punishing the offender. Victims
take an active role in the process, while offenders are encouraged to take responsibility for
their actions, "to repair the harm they've done—by apologizing, returning stolen money, or
community service".[2] Restorative justice involves both victim and offender and focuses on
their personal needs. In addition, it provides help for the offender in order to avoid future
offences. It is based on a theory of justice that considers crime and wrongdoing to be an
offence against an individual or community, rather than the state.[3] Restorative justice that
fosters dialogue between victim and offender shows the highest rates of victim satisfaction
and offender accountability.[4]

Definition

According to Braithwaite (2004), restorative justice is:

...a process where all stakeholders affected by an injustice have an opportunity to discuss
how they have been affected by the injustice and to decide what should be done to repair
the harm. With crime, restorative justice is about the idea that because crime hurts, justice
should heal. It follows that conversations with those who have been hurt and with those who
have afflicted the harm must be central to the process.
The process of restorative justice necessitates a shift in responsibility for addressing crime.
In a restorative justice process, the citizens who have been affected by a crime must take an
active role in addressing that crime. Although law professionals may have secondary roles in
facilitating the restorative justice process, it is the citizens who must take up the majority of
the responsibility in healing the pains caused by crime.[5]

According to Zehr and Mika (1998), there are three key ideas that support restorative justice.
First is the understanding that the victim and the surrounding community have both been
affected by the action of the offender and, in addition, restoration is necessary. Second, the
offender's obligation is to make amends with both the victim and the involved community.
Third, and the most important process of restorative justice, is the concept of 'healing,' or the
collaborative unburdening of pain for the victim, offender, and community. All parties engage
in creating agreements in order to avoid recidivism and to restore safety for how the
wrongdoing can be righted which allows the victim to have direct say in the judgment
process. This gives offenders the opportunity to understand the harm they have caused,
while demonstrating to the community that the offender might also have suffered prior harm.
Healing by reintegration of offenders into the community, strives to restore harmony, health,
and well-being by comprising personal accountability, decision-making and the putting right
of harm.[6] This inclusion as opposed to exclusion, demonstrates the capability of
transformation of the administration of criminal justice, mental health, psychology and public
policy norms. Examples of healing include: victim offender mediation, conferencing, healing
circles, victim and ex-offender assistance, restitution, and community service, each method
healing in different ways.

Restorative justice principles are characterized by four key values: first, the encounter of
both parties. This step involves the offender, the victim, the community and any other party
who was involved in the initial crime. Second, the amending process takes place. In this
step, the offender(s) will take the steps necessary to help repair the harm caused. Third,
reintegration begins. In this phase, restoration of both the victim and the offender takes
place. In addition, this step also involves the community and others who were involved in the
initial crime. Finally, the inclusion stage provides the open opportunity for both parties to
participate in finding a resolution. The process of restorative justice is lengthy and must be
committed to by both parties for effective results.

Restorative justice is defined as:

...a growing social movement to institutionalize peaceful approaches to harm, problem-

solving and violations of legal and human rights. These range from international
peacemaking tribunals such as the South Africa Truth and Reconciliation Commission to
innovations within the criminal and juvenile justice systems, schools, social services and
communities. Rather than privileging the law, professionals and the state, restorative
resolutions engage those who are harmed, wrongdoers and their affected communities in
search of solutions that promote repair, reconciliation and the rebuilding of relationships.
Restorative justice seeks to build partnerships to reestablish mutual responsibility for
constructive responses to wrongdoing within our communities. Restorative approaches seek
a balanced approach to the needs of the victim, wrongdoer and community through
processes that preserve the safety and dignity of all."[7]

Restorative justice is very different from either the adversarial legal process or that of civil
litigation. J. Braithwaite writes, "Court-annexed ADR (alternative dispute resolution) and
restorative justice could not be philosophically further apart", because the former seeks to
address only legally relevant issues and to protect both parties' rights, whereas restorative
justice seeks "expanding the issues beyond those that are legally relevant, especially into
underlying relationships."[8]

Similarly, citing Greif, Liebmann wrote

a way of looking at restorative justice is to think of it as a balance among a number of

different tensions:

 a balance between the therapeutic and the retributive models of justice

 a balance between the rights of offenders and the needs of victims
 a balance between the need to rehabilitate offenders and the duty to protect the
public.[9]

Traditional criminal justice seeks answers to three questions: What laws have been broken?
Who did it? and What do the offender(s) deserve? Restorative justice instead asks: Who has
been harmed? What are their needs? Whose obligations are these?[10]

Application in prisons

In addition to serving as an alternative to civil or criminal trial, restorative justice is also

thought to be applicable to offenders who are currently incarcerated. The purpose of
restorative justice in prisons is to assist with the prisoner's rehabilitation, and eventual
reintegration into society. By repairing the harm to the relationships between offenders and
victims and offenders and the community that resulted from the crime, restorative justice
seeks to understand and address the circumstances which contributed to the crime in order
prevent recidivism once the offender is released. The potential for restorative justice to
reduce recidivism is one of the strongest and most promising arguments for its use in
prisons, but there are both theoretical and practical limitations, which can make restorative
justice unfeasible in a prison environment-such as: difficulty engaging offenders and victims
to participate in mediation; the controversial influence of family, friends, and the community;
and the prevalence of mental illness among prisoners.[