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 institutions 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 countrys 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 frontrunners in the swing towards the restorative ethos, are presented. The chapters on the Philippine criminal justice system, while providing an abbreviated look at the countrys 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 Pambarangays 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 farfetched 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) peoples 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, MTBMRJ 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 countrys 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. 2. 3. 4. Barangay Sta. Rita, Olongapo City (for Highly Urbanized Cities); Barangay Tenejero, Balanga City (for Component Cities); Barangay Pico, La Trinidad, Benguet (for 1st 3rd Class Municipalities); and 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 barangays exemplary performance and contribution in promoting the Katarungang Pambarangays 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. a. b. c. d. IV. a. i. ii. b. c. d. e. The Philippine Criminal Justice System: An Overview Law Enforcement, Prosecution and the Courts Community Correctional Institutions Recovery and Restitution Restorative Justice in the Current Legal Framework Criminal Law The Classical Approach The Positivist Approach The Katarungang Pambarangay Law The Indigenous Peoples Rights Act The Alternative Dispute Resolution Act 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. a. b. i. ii. VII. The Laws and Practices Through a Restorative Justice Lens Legal Framework Practices Indigenous Communities Katarungang Pambarangay 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 doneby 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, problemsolving 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.[