RESTORATIVE JUSTICE and the

PHILIPPPINES CORRECTIONAL SYSTEM

Under the Lens
By: Diane C. Dapitanon1

INTRODUCTION

The rule of law is the very foundation of every civilized society. With this,
each society is governed with a criminal justice system to deal with crimes and
punishment of offenders.
In the philosophical debate about punishment, retributive theory
dominates among others.2 But Braithwaite argues that restorative justice has
been the dominant model of criminal justice throughout most of human
history for all the worlds peoples.3
This is now the common spectrum of justice that reflects the kind of
justice system a state upholds: the retributive justice and restorative justice
respectively.
Meyer defined Retributive justice as a, response to criminal behaviour
that focuses on the punishment of lawbreakers and the compensation of
victims.4 Central to this type of justice is that offenders get what they deserve
and the severity of punishment which is commensurate to the offense balances
the scale of justice.
On a different note, Tony Marshall defined restorative justice as a
process whereby all the parties with a stake in a particular offense come
together to resolve collectively how to deal with the aftermath of the offense and
its implications for the future.5 This alternative approach to justice underscores
the human dimension of every action it focuses on the deed, not the doer,
thereby facilitating the rehabilitation process and reintegration into the
community.6
Although the two approaches have been coexisting in the fiber of every
societys criminal justice system since ancient times, advocates of restorative
justice opined that the latter approach is the most effective criminal justice
option at present. In the study Restorative Justice: A New Paradigm for
Criminal Justice Policy, Donald Schmid concluded that restorative justice as
1
Diane C. Dapitanon is a 3rd year law student of the University of Mindanao- College of Legal Education. She finished Bachelor of Secondary Education Major in English at Ateneo de Davao
University.
2
The Purpose of Criminal Punishment (n.d) Retrieved August 21, 2017 from
https://www.sagepub.com/sites/default/files/upm-binaries/5144_Banks_II_Proof_Chapter_5.pdf
3
Id. at 16.
4
Meyer, J.F (2014). Retributive justice. In Encyclopedia Britannica, Inc. (2017).Retrieved August 21, 2017 from https://www.britannica.com/topic/retributive-justice.
5
Villero, J. M. (Ed.). (2006). Restorative justice: legal framework and practices in the Philippines. Quezon City: Philippines.
6
Wan, P. (2001). PHILJA and UNICEF: a natural partnership. The PHILJA Judicial Journal: Inspirational Message from the Bench. Retrieved August 13, 2017 from
http://philja.judiciary.gov.ph/assets/files/pdf/journal/vol3issue7.pdf

1
compared to that of the traditional criminal justice is more practical and
socially advantageous because it has, among other things, reduced reoffending,
increased satisfaction rates, and prevented crimes.7
Now, where is the Philippines Criminal Justice system (CJS) in this
emerging approach?
Contrary to human rights principles and standards, the prevailing
justice system in the country is punitive and retributive in nature. As such, it
allows little room for genuine healing.8 It is primarily built on punishment and
vengeance where the legal system focuses its lens on punishing the offender
while victims are relegated as bystanders in the administration of justice.
Nonetheless, some Philippine laws have already articulated the principles of
restorative justice into the scheme of the countrys CJS, to wit: The Juvenile
Justice Law of 2006, The Barangay Justice System, and the Alternative
Dispute Resolution of 2004.
Philippines is believed to be far from overhauling its criminal justice
system which has been dubbed as slow, rotten and plagued with multifaceted
issues such as an outdated criminal code, corruption, poor implementation of
laws, prison overcrowding, extrajudicial killings among others.
This paper aims to determine whether the Philippine Criminal Justice
System, primarily the correctional system, has been reintegrating restorative
principles in its goal to rehabilitate offenders. It also aims to identify prevalent
issues in the correctional facility which would become benchmarks in the
creation of laws or enhancing the same for the proper functioning of the
countrys criminal justice system.

I. CRIMINAL JUSTICE

A. HISTORY OF PHILIPPINE CRIMINAL JUSTICE SYSTEM

Pre-colonial Justice System

The barangay was the Filipinos earliest form of government.9 It was led
by a datu or chieftain who was the chief executive, the legislature and the
judge.10 Their laws were not written and were primarily based on customs and
traditions. They believe that their laws were from a supreme being and were
handed down from one generation to another.11 With the assistance of the

7
Schmid, D.J. (2002). Restorative justice: A new paradigm for criminal justice policy. Retrieved August 18, 2017 from https://www.victoria.ac.nz/law/research/publications/vuwlr/prev-
issues/vol-34-1/schmid.pdf
8
See Villero, supra note 5.
9
Agoncillo, T.A. (1994). History of the Filipino people. Quezon City. Garcia Publishing.
10
Agoncillo, supra note 9.
11
The Philippine Judiciary Foundation (2011). The history of the Supreme Court. Supreme Court of the Philippines, Manila.
elders, the datu renders punishment in the form of trial by ordeal, slavery or by
imposing a fine on the offender or on the rest of the members of his family.12

Spanish Regime Justice System

For 333 years of Spanish colonization, Spanish laws were extended to
the Philippines.13 Among these are the Penal Code, the Civil Code, the Criminal
and Civil Procedure and the Code of Commerce.14 In the beginning of this
colonial era, the Real Audiencia de Manila was established which later on
served both as a trial and appellate court15 while the Guardia Civil served as
law enforcers who execute convicted prisoners through firing squad or
garotte.16

American Regime Justice System

Under the American colonial government, a new judicial system was
established which was patterned after the judicial system of the United States
and which abolished the Real Audiencia de Manila.17 Moreover, in 1901 a
national police force was formed and in 1902 the Bill of Rights of the United
States Constitution was introduced to the Philippines. In addition, the use of
firing squad and garotte was abolished but it was replaced by the use of
electric chair in 1926. When the Commonwealth government of the Philippines
was formed in 1934, the transitional government paved way for the 1935
Philippine Constitution to be drafted and ratified. 18

Justice System during the Commonwealth

The 1935 Philippine Constitution provided for the principle of separation
of powers.19 Similarly in the United States, the judicial power was vested in
one Supreme Court and in such inferior courts as may be established by
law.20 But when the Imperial Japanese Forces occupied the archipelago, the
Commonwealth government had in effect become frozen. And after Japans
formal surrender to the US, the Commonwealth government was definitely
abolished and the Philippines became an independent republic which officially
ended the American rule. 21 But it is noteworthy that throughout the period
since Liberation, Supreme Court has maintained and strengthened its

12
Reyes , N. C., Life and Crime In The Philippines: Carabao Justice (2014). The evolution of the Philippine criminal justice system. Retrieved September 4, 2017 from
http://napoleoncreyes.wixsite.com/carabaojustice/single-post/2014/03/16/The-Evolution-of-the-Philippine-Criminal-Justice-System.
13
Reyes, supra note 12.
14
Ibid.
15
The Philippine Judiciary Foundation, supra note 11.
16
Reyes, supra note 12.
17
Sinco, V.G. (1962). Philippine political law, principles and concepts. Community Pub.
18
Reyes, supra note 12.
19
The Philippine Judiciary Foundation, supra note 11.
20
Article 8(1) of the 1935 Constitution provides that The judicial power shall be vested in one Supreme Court and in such inferior courts as may be established by law.
21
Reyes, supra note 12.
prestige.22 The court had been recognized as consistent and impartial during
the Japanese Occupation and has remained indifferent to political issues of
that time. 23

Justice System during the 1987 Constitution

The declaration of Martial Law through Proclamation No. 1081 by former
President Ferdinand E, Marcos in 1972 brought about the transition from the
1935 Constitution to the 1973 Constitution.24 However, after he was ousted
from his presidency through a successful People Power Revolution, then
President Corazon C. Aquino declared the existence of a revolutionary
government which abolished the 1973 Constitution and put in place a
Provisional Freedom Constitution.25
The current Philippine Constitution, which took effect on February 2,
1987, distributes government powers among the executive, legislative, and
judicial branches. The executive branch was headed by the President and
exercises control over all executive departments. The legislative branch consists
of the House of Senate with 12 senators and the House of Representatives with
289 representatives from legislative districts and through a partylist system.
Judicial power is vested in the Supreme Court, which is made up of a chief
justice and 14 associate justices, and in such lower courts as may be
established by law. 26

At present, the Philippine criminal law is still largely based on the

Spanish Penal Code. The code combines classical and positivist criminological
philosophy, which results in the mixed goals of retribution, deterrence,
rehabilitation, and reintegration.27

B. THE COMMON APPROACHES TO JUSTICE

RETRIBUTIVE JUSTICE
Retribution is primarily based on the concept of retaliation which
anchors on Exodus 21:24 an eye for an eye, a tooth for a tooth, and a life for a
life.28 Retributionists consider retributive punishment as a form of expiation
that is to suffer punishment is to pay a debt due to the law that has been
violated.29 Moreover, Immanuel Kant, a well-renowned retributionist, qualified
that the right to impose criminal punishment is the right of the sovereign as
22
Benitez, C. (1954). History of the Philippines, p.59. Ginn and Company, Boston.
23
Ibid.
24
The Philippine Judiciary Foundation, supra note 11.
25
Ibid.
26
Reyes, supra note 12.
27
Ibid.
28
Meyer, J.F (2014). Retributive justice. Encyclopdia Britannica. Encyclopdia Britannica, Inc. Retrieved on September 26, 2016 from https://www.britannica.com/topic/retributive-justice.
29
Allott, N.A, Clarke, D.C., Thomas, D.A, Bernard, T.J. and Edge, I.A. (2016). Punishment. Encyclopdia Britannica. Encyclopdia Britannica, Inc. Retrieved on September 26, 2017 from
https://www.britannica.com/topic/punishment.
the supreme power to inflict pain upon a subject on account of a crime
committed by him.30 This established the philosophical foundations of
retributivism which stressed that punishment must in all cases be imposed
only because the individual on whom it is inflicted has committed a Crime31
and in effect restores social balance.32

In short, retributive justice is a form of justice committed to the

following three principles: (1) that those who commit certain kinds of
wrongful acts, paradigmatically serious crimes, morally deserve to suffer a
proportionate punishment; (2) that it is intrinsically morally goodgood
without reference to any other goods that might ariseif some legitimate
punisher gives them the punishment they deserve; and (3) that it is morally
impermissible intentionally to punish the innocent or to inflict
disproportionately large punishments on wrongdoers.33

RESTORATIVE JUSTICE
Carol Steiker, an ardent opponent of death penalty, posits that
restorative justice might bring us closer to justice.34 Moreover, Braithwaite
argues that restorative justice has been the dominant model of criminal justice
throughout most of human history for all the worlds peoples, and that it is
grounded in traditions from ancient Greek, Arab, and Roman civilizations and
in Hindu, Buddhist, and Confucian traditions. 35

Furthermore, the Philippines has advanced the following definition of

restorative justice in reply to the note verbale issued by the Secretary General,
pursuant to UN ECOSOC Resolution 2001/14:

Restorative justice is an alternative measure in the criminal justice

system that is not punitive in nature but rather seeks to render justice to
offenders and victims alike, instead of tilting the balance heavily in favour
of one of the stakeholders to the disadvantage of another. It seeks to re
establish social relationships that are the end point of restorative justice
and seeks to address the wrongs in the doing and the suffering of a wrong
that is also the goal of corrective justice.36

In retributive justice, the victims take the sidelines in the administration

of justice; however, in restorative justice, victims are said to be central to the
process.37 And restorative justice programs take place in the context of the
offender-centered criminal justice system.38

30
Materni, M.C (2013). Criminal punishment and the pursuit of justice. British Journal of American Legal Studies 2(1): 272. Retrieved on September 26, 2017 from
http://hls.harvard.edu/content/uploads/2011/09/michele-materni-criminal-punishment.pdf.
31
Ibid.
32
Bradley, G.V. (2003) Retribution: The central aim of punishment. Harvard Journal Of Law & Public Policy 27:30. Retrieved on September 26, 2017 from
http://hls.harvard.edu/content/uploads/2011/09/michele-materni-criminal-punishment.pdf
33
Walen, A. (2016), Retributive justice. The Stanford Encyclopedia of Philosophy. Edward N. Zalta (ed.). Retrieved on September 26, 2017 from
https://plato.stanford.edu/archives/win2016/entries/justice-retributive.
34
Materni, supra note 30, at 300.
35
Braithwaite, J. (1998). Restorative justice. Handbook of Crime and Punishment, 323344 (Tonry, M,ed). New York: Oxford University Press.
36
Villero, supra note 5, at 18.
37
Centre for Justice & Reconciliation: A program of Prison Fellowship International. (2017). RJ in the criminal justice system. Retrieved on September 26, 2017 from
http://restorativejustice.org/restorative-justice/rj-in-the-criminal-justice-system/#sthash.U45dBjhV.dpbs.
38
Ibid.
 C. Restorative Justice in the Philippines and Around the Globe

Restorative Justice in the Philippines

The Commission on Crime Prevention and Criminal Justice endorsed to
the Economic and Social Council of the United Nations Organization (UNO), the
adoption of the Basic Principles on the Use of Restorative Justice Programmes
in Criminal Matters which is a formulation of the UN Standard in the field of
mediation and restorative justice. 39 The Philippines, as a signatory member-
country should ensure adoption of this resolution.40
Although Restorative Justice has not yet formally adopted statutorily as
a fundamental philosophy in Philippine Criminal Law,41 in recent years, it was
observed that there is a gradual increase in the promotion of restorative justice
in the Philippines justice system.42
Through these movements, the Katarungang Pambarangay Law,
Indigenous Peoples Rights Act, Alternative Dispute Resolution Act, the Juvenile
Justice Law and the Parole and Probation Law were enacted which advanced
the restorative justice process in the Philippines justice system.

Katarungang Pambarangay Law (P.D No. 1508)

The Katarungang Pambarangay or Barangay Justice System (BJS) was
established by Presidential Decree No. 1508 in 1978 and was amended in the
1991 Local Government Code (LGC) and other succeeding laws.43 It provides a
system of amicably settling disputes at the barangay level without resort to
court intervention.44 It aims to promote a speedy administration of justice,
inexpensive settlement of disputes, preserve the Filipino tradition of settling
disputes and to declog court dockets.45
The Barangay Justice System embodies the Restorative Justice which
began as an indigenous practice of settling disputes. Through mediation or
voluntary cooperation and dialogue, the parties are brought together to
mutually resolve their differences and come up with resolutions to settle the
same. However, the BJS still faces a few setbacks; among them are a limited
jurisdiction, existence of corruption and bias, and a lack of understanding of
how the system works.46

39
Republic of the Philippines Department of Justice: Parole and Probation Administration. (2014). Restorative justice. Retrieved on October 3, 2017 from http://probation.gov.ph/restorative-
justice/.
40
Ibid.
41
Villero, supra note 36.
42
Villero, supra note 5, at 19.
43
Villero, supra note 5, at 23.
44
Tan, B. & Pulido, G. (1981) Katarungang pambarangay law: Its goals, processes, and impact on the right against self-incrimination. Philippine Law Journal 56(3), 426-438.
45
Martinez, A. (n.d). Community involvement in the courts. Retrieved on October 13, 2017 from http://www.unafei.or.jp/english/pdf/philippines_pdf/topic3.pdf.
46
Macmanus , S. & Millner, S. (n.d). Reflections on restorative justice in the Philippines. Retrieved on September 26, 2017 from http://philrights.org/wp-content/uploads/2010/10/Reflections-on-
restorative-justice-in-the-Philippines.pdf.
 Indigenous Peoples Rights Act of 1997
Indigenous justice processes have been very significant in the
development of restorative justice systems globally.47 Thus, in the Philippines
case, the Indigenous Peoples Rights Act of 1997 (Republic Act No. 8371)
ensures the primacy of customary law and practices to resolve disputes.48
For example, the traditional justice systems of the indigenous
communities in the Cordilleras and among the Lumads of Mindanao involve
traditional practices which serve as alternative dispute mechanisms. However,
although the methodologies of settling dispute vary from one tribal community
to another, common to these traditional practices is the participation of the
community members in settling disputes.49
But then again, the IPRA is far from perfect. The IPRA and the Philippine
states approach to restorative justice have revealed issues linked with the
mapping and titling of ancestral domains.50 Firstly, it is viewed to be
anthropologically nave. For instance, the failure of the barangay officials and
government agencies in mediating and resolving land disputes among the
Bugkalot community reflects the dynamism of its culture and the inadequacy
of the state and the law to provide service and support to the local community.
Moreover, the IPRAs implementation is said to be slow and ineffective.51 The
National Commission on Indigenous Peoples (NCIP), the implementing agency
stipulated in the law, has limited resources which affects the commissions
exercise of its mandate.52

Alternative Dispute Resolution Act

The enactment of Republic Act No.9285 or the Alternative Dispute
Resolution Act of 2004 institutionalizes the use of an alternative dispute
resolution system in the Philippines to promote party autonomy in the
resolution of disputes the freedom of the party to make their own arrangements
to resolve their disputes. Moreover the law directs the active promotion of the
53

use of ADR as an important means to achieve speedy and impartial justice

and declog court dockets.54

47
Villero, supra note 5, at 24.
48
Ibid.
49
Conduct of further study on operations and linkages of the 5 pillars of justice: System overview and conceptual framework (2013). United Nations Development Programme Supreme Court
of the Philippines. CPRM Consultants, Inc. Retrieved on September 26, 2017 from http://www.ombudsman.gov.ph/UNDP4/wp-
content/uploads/2013/01/2_System_Overview_and_Conceptual_Framework_OK_SC.pdf.
50
Yang, S. (2013). State recognition or state appropriation? Land rights and land disputes among the Bugkalot/ Ilongot of Northern Luzon, Philippines. Southeast Asian Studies 1(1). Retrieved on
September 26, 2017 from https://englishkyoto-seas.org/2015/12/vol-1-no-1-shu-yuan-yang/.
51
Ibid.
52
Ibid.
53
Republic Act No. 9285, Chapter 1, Sec. 2. Declaration of Policy states that, it is hereby declared the policy of the State to actively promote party autonomy in the resolution of disputes or the
freedom of the party to make their own arrangements to resolve their disputes. xxx
54
Villero, supra note 5, at 25.
 Moreover, ADR comes in different forms which include arbitration,
mediation, conciliation, early neutral evaluation, mini-trial, or any combination
of these schemes.55 This particular program makes use of a neutral third party
or mediators who bring parties together in order to discuss the crime, its
consequences and the necessary steps to resolve their issues.56 This mediation
process is likened to a restorative practice where stakeholders communicate in
what we call circle processes in settling disputes. These encounters are
within the restorative justice approach which can be viewed as conflict-
resolving, problem-solving approaches to harm.57
Although ADR is very promising with its advantages, this program still
has a downside. For instance, ADR is supposedly speedy but this approach
may cause additional delay in the resolution of the case and may burden the
parties even more financially when the same has become unsuccessful.58

Juvenile Justice Law

Throughout the world restorative justice finds more roots in juvenile
justice. In the Philippines, the Juvenile Justice Act or Republic Act 9344 took
eight years to have the bill passed.59 Nevertheless, this legislation was designed
to protect and enhance childrens access to justice. This calls for the
integration of restorative justice in all laws, policies and programmes
applicable to children in conflict with the law.60
This law provides that children aged 15 years and below are exempted
from criminal liability. Instead, these children in conflict with the law would be
subject to diversion program.61 Moreover, local government units were
mandated to establish youth detention homes to separate the youth offenders
from adult criminals. 62 Here, they will go undergo anger management
trainings, participate in community services, make apologies, and strive for the
reparation of the damage they have caused. With the help of these diversions,
the children in conflict with the law are not subjected to the trauma of having
to spend in jail with criminals. Rather, they are subjected to psychological
therapies, which seek to address the root cause of their delinquency.63

55
Conduct of further study on operations and linkages of the 5 pillars of justice, supra note 49.
56
Ibid.
57
Zehr, H. & Peacebuilding, Restorative Justice (2010). Restorative justice, mediation and ADR. Retrieved on September 26,2017 from https://emu.edu/now/restorative-
justice/2010/08/13/restorative-justice-mediation-and-adr/.
58
ADR advantages and disadvantages notes (n.d.). Retrieved on October 20, 2017 from https://www.oxbridgenotes.co.uk/revision_notes/bptc-law-alternative-dispute-resolution/samples/adr-
advantages-and-disadvantages.
59
Macmanus,supra note 49.
60
Republic Act 9344 Chapter 1 Sec. 2 (f) provides that The State shall apply the principles of restorative justice in all its laws, policies and programs applicable to children in conflict with the
law.
61
Primer Access to Justice - Office of the Ombudsman (n.d). Retrieved on October 20, 2017 from http://www.ombudsman.gov.ph/UNDP4/wp-
content/uploads/2013/01/Primer_Access_to_justice.pdf.
62
Villero, supra note 5, at 27.
63
Primer Access to Justice, supra note 61.
 On one hand, issues involving children being used by adults in
committing crimes has become a social problem in the Philippines which has
pushed some of countrys legislators to lower the age of criminality. Fortunately
for advocates of childrens rights the bill was not warmly welcomed by the
majority of the lawmakers.64

Probation Law
The Probation Law or Presidential Decree No. 968 is a program which
aims to reintegrate offenders to the social mainstream, to encourage them to
assume active responsibility for the injuries inflicted to the victims, to
rehabilitate both victims and offenders and to prevent recidivism among the
convicts.65
With this restorative approach to justice, the victims take part in the
rehabilitation of the offender by giving them the opportunity to speak their
version of the offense, the effects of victimization to their lives, families and
future, and their recommendation on how the damage can be repaired or
injuries be healed.66

Restorative Justice around the Globe

In Africa, restorative justice highlighted the indigenous justice practices,
the advantage of using community service to solve prison overcrowding,
national restorative responses to genocide and civil war, and the South
African Truth and Reconciliation Commission.67
In Asia, restorative justice highly concentrated on juvenile justice, on
regularizing indigenous practices, and on peacemaking and reconciliation.
In Europe, restorative justice is characterized by experimentation in
different areas with input from both government and community actors. Since
Europe has a diversified legal system and cultures, restorative justice has been
used to resolve issues on juvenile justice in many countries, alternatives to
paramilitary violence in Northern Ireland, and justice reform needs in Eastern
Europe.68
Restorative justice in Latin American is still in its experimental stage in
response to justice reforms to counteract increasing rates of crime and violence
while increasing citizen confidence in justice systems; national reconciliation

64
Cayabyab, M.J. (2016). Lowering criminal liability age leads youth to negative path. Retrieved on October 20, 2017 from http://newsinfo.inquirer.net/898945/lawmakers-scrap-lowering-age-
of-criminal-responsibility.
65
Republic of the Philippines Department of Justice: Parole and Probation Administration, supra note 39.
66
Ibid.
67
Centre for Justice & Reconciliation: A program of Prison Fellowship International. (2017). RJ around the wprld. Retrieved on September 26, 2017 from http://restorativejustice.org/restorative-
justice/about-restorative-justice/around-the-world/#sthash.hAnkRjJm.dpbs.
68
Ibid.
efforts after years of civil war; and alternative dispute resolution to tackle
violence and conflict to create a culture of peace.69
In the Middle East, restorative justice is still in its fetal stage where
experiments are still being conducted related to the use of traditional
processes for conflict resolution while others deal with child welfare and
juvenile justice issues.70
In North America, restorative justice sprung from various sources such
as indigenous practices of First Nations people, a discontent with the justice
system, and a need to meet the needs of victims. It is currently being applied in
various areas from prison to schools to child welfare issues.
In the Pacific region, restorative justice has already been recognized as a
method of resolving crimes. With roots in indigenous practices, restorative
justice is being used to address crime, school discipline, and other types of
conflicts.71

II. Punishment of Offenders

A. History
As the society evolved from the earliest civilization up until present
times, theories and methods of punishment have also developed. In the ancient
past, the common response to crimes is revenge.72 Oftentimes, the victim or the
family of the offended would demand for the punishment that they deem fit in
order to punish the offender. 73This type of punishment is vindictive in
character or anchored in the principle of lex talionis or the law of retaliation.74
As people became more civilized, the development of the system of
writing paved way to the codification of crimes and their respective
punishments. Among these codes are the Code of Hammurabi in Babylon (circa
1750 b.c.e.), the Laws of Moses, as chronicled in the Bible and the Justinian
Code of Emperor Justinian of the Byzantine or Eastern Roman Empire (529
565).75
With the emergence of a more systematized law, the state took the
responsibility to provide a machinery of justice to maintain public order.76
Hereafter, commission of a crime became a crime against a state and due
process became part of the judicial system. In effect, execution without trial

69
Ibid.
70
Ibid.
71
Ibid.
72
Meyer, supra note 28.
73
Roufa, T. (2017). Crime and criminology, from the ancients to the Renaissance. The History of Criminology. Retrieved on October 3, 2017 from https://www.thebalance.com/the-history-of-criminology-
part-1-974579.
74
Meyer, supra note 28.
75
History of corrections-punishment, prevention, or rehabilitation? Information Plus(R) Reference Series (Fall 2005). Retrieved November 05, 2017
from: http://www.encyclopedia.com/reference/encyclopedias-almanacs-transcripts-and-maps/history-corrections-punishment-prevention-or-rehabilitation.
76
Kircheimer, Otto & Rusche, G. (2003). Punishment and social structure. Transaction Publishers.
became illegal.77 Even if the vindictive or retributive character of punishment
remained at this stage, gradually new theories of punishment began to surface
espoused by the humanist philosophers Cesare Beccaria and Jeremy
Bentham.78
Among other philosophers, Plato was the first to adopt the principle of
mitigating circumstance for he theorized that crimes and poor education were
correlated and that punishment should be according to the degree of the wrong
committed. On the other hand Aristotle developed the idea that punishment
should be viewed as a form of deterrence.79
During the medieval period, harsh punishment had kept the society in
order80 and crimes were treated as a sin.81 These cruel punishments, e.g
mutilation, torture and death, were supposed to purge the criminal of sin and
liberate the offender from the power of Satan.82 Moreover, an accuseds
evidence of guilt or innocence would be tried through trial by jury, trial by
ordeal, ordeal by fire, ordeal by water, and ordeal by combat.83
In the course of time, physical infliction of pain has become offensive to
the general sensibility of the public. As a result, corporal and capital
punishments had taken a back seat in the societys pursuit of peace and order.
Moreover, modern theories as early as the 18th century laid down the
humanitarian approach to punishment which emphasized the dignity of the
individual. Consequently, the severity of punishment was reduced and the
prison system was improved. Moreover, attempts to study on the psychology of
crime and to distinguish between classes of criminals with a view to their
improvement had taken roots.84
Since the spread of Christianity had influenced most of the worlds legal
system, the Roman Catholic Theologian Thomas Aquinas also introduced the
concept of forgiveness and compassion in his article Summa Theologica.
And these concepts of mercy and forgiveness have become prevalent today in
our secular views of crime and punishment especially in the restorative
approach of justice.85

77
New World Encyclopedia (2015). Punishment. Retrieved on November 05, 2017 from http://www.newworldencyclopedia.org/entry/Punishment#History
78
Ibid.
79
Ibid.
80
Medieval life-crime and punishment. History on the Net. Retrieved on November 05, 2017 from https://www.historyonthenet.com/medieval-life-crime-and-punishment/.
81
New World Encyclopedia, supra note 53.
82
Ibid.
83
Medieval life-crime and punishment, supra note 56.
84
New World Encyclopedia, supra note 53.
85
Medieval life-crime and punishment, supra note 56.
 B. Types of Punishment
Systems of criminal punishment exist to serve justice and to protect the
public in general. Among the most common types of punishment, the following
are among the most prevalent in our modern society.

Fines
This type of penalty mostly applies to petty crimes or minor law-
infractions. Offenders are merely ordered to pay a certain amount of money to
the authorities as punishment for breaking a law. And failure to pay the fine
may result to imprisonment.86 A fine may also be imposed in addition to
incarceration, probation or community service.87

Incarceration
This type of punishment deprives the offender of his liberty for he will be
confined behind bars or within barb-wired fences. These inmates are subjected
within the bounds of the cold iron steel as they wait for their trial, when they
cannot afford to make bail, as they serve their sentence or when they violate
the terms of their probation.88 However, most penitentiaries are plagued with
human rights violations because of its inhumane and degrading conditions
resulting from overcrowding and various forms of abuse from prison guards.89

Probation
Probation is a type of sentence where an offender serves in the
community as an alternative to incarceration. Probationers are expected to
follow the conditions of their probation such as obeying all laws, refrain from
drug and alcohol usage and attend counseling. However, any violation on any
of the conditions of probation may result to the revocation of his probation and
he will be incarcerated consequently.90
The primary goal of probation is to rehabilitate the offender and to
recommend for his early release if he has performed well on his probation.

86
C l i f f n o t e s : H o u g ht o n M i f f l i n H a r c o u r t ( 2 0 1 6 ) . T y p e s o f s e n t e n c e . R e t r ie v e d o n O c t o be r 6 , 2 0 1 7 fr o m https://www.cliffsnotes.com/study-guides/criminal-
justice/sentencing/types-of-sentences.
87
Masino, D. (2017). Forms of punishment in the criminal justice system. Legal Beagle. R e t r ie v e d o n O c t o be r 6 , 2 0 1 7 fr o m https://legalbeagle.com/8400916-forms-punishment-
criminal-justice-system.html.
88
Ibid.
89
Philippines: 2010 country reports on human rights and practices report (2011). Retrieved on October 10, 2017 from https://www.state.gov/j/drl/rls/hrrpt/2010/eap/154399.htm
90
C l i f f n o t e s , s u p r a no t e 6 2 .
 Community Service
As an alternative to incarceration or probation, the essence of community
service is for the non-violent, non-repeat offenders to give back to the
community for the harm they have done.91
A person sentenced to render community service should work for a
specified number of hours in a facility in need of volunteer workers, imposed by
the judge.92

Death penalty
This type of punishment is carried out by any means according to the
laws of the country imposing the same. Among the varied types of execution
used around the world today are beheading, electrocution, hanging, lethal
injection, and shooting in the back of the head and by firing squad.93
However, the death penalty violates two fundamental human rights: the
right to life and the right to live free from torture which are protected under the
Universal Declaration of Human Rights, adopted by the UN in 1948.94

C. Current approach to criminal justice around the Globe

Though the restorative justice approach is emerging in all criminal

justice systems in the world, it is still undeniable that retributive justice still
dominates as it focuses on what was violated, who broke it, and how the
offended should be punished.95 United States criminal justice system for one
banks on the retributive justice approach.96
Moreover, in our current legal system, victims do not decide the fate of
their wrongdoers but judges and juries do.97 This is precisely different from
restorative justice where victims take part in the healing and rehabilitation
process of their offenders.98
Also, it is important to note that in the penitentiary, the predominant
purpose of punishment is to rehabilitate inmates. However, presently, there
has been a shift of focus from rehabilitation to just deserts, or retribution, as
the primary goal of incarceration.99

91
Masino, s u p r a no t e 6 3 .
92
Ibid.
93
Amnesty International (2017). Death penalty. Retrieved on October 10, 2017 from https://www.amnesty.org/en/what-we-do/death-penalty/. (hereinafter Amnesty)
94
Ibid.
95
Villero, supra note 5, at 19.
96
Hogan, N. (2013). Repairing the harm restorative justice and its implications on the criminal justice system. Retrieved on October 10, 2017 from
https://spea.indiana.edu/doc/undergraduate/ugrd_thesis2013_lpp_hogan.pdf.
97
FeldmanHall, O. & Sokol-Hessner, P. (2014). Is the justice system overly punitive? Reconciliation has not been given enough attention, psychological research suggests. Retrieved on October
10, 2017 from https://www.scientificamerican.com/article/is-the-justice-system-overly-punitive/.
98
Polish , J. (2015). How Can Restorative Justice Change the Criminal System? Retrieved on October 10, 2017 from https://lawstreetmedia.com/issues/law-and-politics/restorative-justice/.
99
Travis, J., Western, B., & Redburn, S. (Eds.) (2014). The growth of incarceration in the United States: Exploring causes and consequences. The National Academy of Sciences. Retrieved on
October 11, 2017 from https://www.nap.edu/read/18613/chapter/14.
 In addition, although the European Convention on Human Rights
(Protocol No. 13) prohibits the imposition of the death penalty at all times,
nearly half of the countries in the world still impose death penalty.100 With that
said, it should be noted that death penalty leans heavily on retribution as
people who favor death penalty argue that the offender deserves death for the
heinous crime e.g murder and rape he committed.101

III. CORRECTIONS IN THE PHILIPPINES

A. HISTORY
The exact date for of the general beginning of imprisonment for crime is
relatively impossible to determine.102
In Philippines case, corrections history can be dated back to pre-colonial
times. However, the prison system was yet informal and community-based
since there were no national penitentiaries yet at that time. It was only during
the Spanish era that the formal prison system in the country was established.
Pursuant to Section 1708 of the Revised Administrative Code, the Old Bilibid
Prison was established in 1847. It was the main penitentiary and designed to
house the prison population of the country. This prison became known as the
Carcel y Presidio Correccional and could accommodate 1,127 prisoners.
The Carcel was designed to house 600 prisoners who were segregated
according to class, sex and crime while the Presidio could accommodate 527
prisoners. In 1908, concrete modern 200-bed capacity hospitals as well as new
dormitories for the prisoners were added.
On August 21, 1869, the San Ramon Prison and Penal Farm in
Zamboanga City was established to confine Muslim rebels and recalcitrant
political prisoners opposed to the Spanish rule.
When the Americans took over in the 1900s, the Bureau of Prisons was
created under the Reorganization Act of 1905 (Act No. 1407 dated November 1,
1905) as an agency under the Department of Commerce and Police.
It also paved the way for the re-establishment of San Ramon Prison in
1907 which was destroyed during the Spanish-American War. On January 1,
1915, the San Ramon Prison was placed under the auspices of the Bureau of
Prisons and started receiving prisoners from Mindanao.
Before the reconstruction of San Ramon Prison, the Americans
established in 1904 the Iuhit penal settlement (now Iwahig Prison and Penal
Farm), located on the westernmost part of the archipelago far from the main
100
Amnesty, supra note 69.
101
Should the death penalty be used for retribution? (2009). Retrieved on October 12, 2017 from https://deathpenalty.procon.org/view.answers.php?questionID=001004.
102
Barnes, H.E. (1972). The story of punishment. Patterson Smith.
town to confine incorrigibles with little hope of rehabilitation. On November 27,
1929, the Correctional Institution for Women (CIW) was created under Act No.
3579 to provide separate facilities for women offenders while the Davao Penal
Colony in Southern Mindanao was opened in 1932 under Act No. 3732.
Due to the increasing number of committals to the Old Bilibid Prison,
Commonwealth Act No. 67 was enacted, which appropriated one million
(P1,000.000.00) pesos for the construction of a new national prison in the
southern suburb of Muntinlupa, Rizal in 1935. On November 15, 1940, all
inmates of the Old Bilibid Prison in Manila were transferred to the new site.
The new institution had a capacity of 3,000 prisoners and it was officially
named the New Bilibid Prison on January 22, 1941.
After World War II, there was a surplus of steel matting in the inventory
and it was used to improve the security fences of the prison. A death chamber
was constructed in 1941 at the rear area of the camp when the mode of
execution was through electrocution. In the late 60s, fences were further
reinforced with concrete slabs. The original institution became the maximum
security compound in the 70s and continues to be so up to present, housing
not only death convicts and inmates sentenced to life terms, but also those
with numerous pending cases, multiple convictions and sentences of more
than 20 years. In the 1980s, the height of the concrete wall was increased and
another facility was constructed. This became known as Camp Sampaguita or
the Medium Security Camp and the Minimum Security Camp, whose first site
was christened Bukang Liwayway. Later on, this was transferred to another
site within the reservation where the former depot was situated.
Under Proclamation No. 72 issued on September 26, 1954, the Sablayan
Prison and Penal Farm in Occidental Mindoro was established. In The Leyte
Regional Prison followed suit under Proclamation No. 1101 issued on January
16, 1973. 103

The Bureau of Prisons was renamed Bureau of Corrections under the

New Administrative Code of 1987 issued on November 23, 1987 and
Proclamation no. 495 of the President. It is one of the attached agencies under
the supervision and control of the Department of Justice. 104

Among the five pillars of justice, namely community, law enforcement,

prosecution service, the court and the correctional system, the latter is mostly
beset with anti-humanitarian issues which will be discussed in succeeding
pages.
103
History (2012) Bureau of Corrections. Retrieved on October 12, 2017 from http://www.bucor.gov.ph/history.html
104
Concise history of the bureau of corrections (2010). Retrieved on October 12, 2017 from https://philippineprisons.wordpress.com/2010/08/08/history-of-the-bureau-of-corrections-philippines/
 B. Structure of the Philippine Corrections
Three departments of the national government under the executive
branch manage the Philippine corrections system. The Department of Justice
(DOJ), through its Bureau of Corrections (BuCor), supervises seven national
prison facilities. Its Parole and Probation Administration (PPA) administers the
parole and probation system, while its Board of Pardons and Parole (BPP)
assists the president in the grant of executive clemency. The Department of
Interior and Local Government (DILG) supervises provincial, city, and
municipal jails through its Bureau of Jail and Management Penology (BJMP).
The Department of Social Welfare and Development (DSWD) supervises the
regional rehabilitation centers for juvenile offenders through its Bureau of
Child and Youth Welfare (BCYW).105

C. Problems in the Philippine Correction

Overcrowding
Overcrowding is not just a problem in the country, worldwide even first
world countries have to deal with this system issue of overcrowding in the
correctional system.
The data of Bureau of Jail Management and Penology (BJMP), charged
with prison administration, show that on the average, its detention centers are
at 380% overcapacity. Among the most congested jails, the overcapacity
reaches levels of more than 2,000%. According to Human Rights Watch (HRW),
the Philippines has the highest number of pre-trial detainees in the Southeast
Asia Region, a condition that is attributed to a diverse set of factors.106
At the Death Row of the NBP and CIW, the Commission has monitored
the dormitory to be overcrowded and poorly ventilated that cause the convicts
to suffer from illnesses.107
Moreover, Department of the Interior and Local Government
undersecretary for public safety Jesus Hinlo said that, "In a jail facility that
could fit around 10 people based on international standards there are now 50
inmates being placed in that facility."108

105
Reyes, supra note 12.
106
Santos, A (2016, April). Overcrowding in PH prisons: Is tech the solution?.Rappler. Retrieved on October 12, 2017 from https://www.rappler.com/move-ph/130525-overcrowding-
philippines-prisons-technology.
107
The situation of thePhilippine penitentiaries. (n.d.) Preda Foundation. Retrieved on October 20, 2017 from http://www.preda.org/media/research-documents/the-situation-of-the-philippine-
penitentiaries/
108
Merez, A. (2016, October ). DILG: Philippine jails congested by more than 500%. ABS-CBN News. Retrieved on October 20, 2017 from http://news.abs-cbn.com/focus/10/03/16/dilg-
philippine-jails-congested-by-more-than-500
 Security
The penitentiary is supposed to be the place where inmates safety
should be best looked after, given the fact that they comprise of convicts and
accused with varying degree of violence. However, the countrys inmates are far
more secure within the four-cornered cell in the penitentiary. In a study
conducted by University of the Philippines professor, Dr. Filomin Candaliza-
Gutierrez, it was shown that at the Bilibid-Maximum Security Compound, up
to 95% of inmates belong to any of 12 gangs there.109
Former DOJ Secretary De Lima said that the gang system had become
so entrenched they had developed some sort of independence from the jail
authorities.110
In 1958, nine OXO gang members were brutally killed by the Sigue Sigue
gang. Noting that inhuman conditions in prison may have contributed to the
violence, the Supreme Court downgraded to life imprisonment the death
sentence on the 14 members of Sigue Sigue. 111 In addition, last Ocotber 13,
2016, 200 members of the Batang City Jail at the Manila City Jail went into
riot which resulted in the injury of up to 40 inmates and jail personnel.112
Furthermore, the ideal prison personnel-to-inmate ratio, as provided for
in the 2013 BuCor Modernizatoin law is 1:7, in Philippine prisons. But BuCor
Public Information Chief, Insp. Eusebio del Rosario Jr., explains, the actual
ratio can be much higher. On the average, the ratio in the country's prisons is
1:68.113 This significant difference from the standard can well explain why
monitoring of the inmates activities could not be well-maintained resulting to
gang riots and inmates possession of illegal deadly weapons.
On November 4, 2015, high-powered firearms, illegal drugs, sex toys and
other contraband were seized when police raided the maximum security
compound of the New Bilibid Prison (NBP) in Muntinlupa City. Teams from the
Bureau of Corrections-Special Weapons and Tactics unit and Philippine Drug
Enforcement Agency searched and seized these contrabands from the
dormitories of the Commando, Sigue-Sigue and Sputnik gangs.114
In effect, the strip search process of the correctional system before an
inmate maybe admitted inside the penitentiary seemed to have become mere
letters of rules without teeth.

109
Cabal, R. (2016, October). Gangs' roles unique to Philippine prison system. CNN Philippines. Retrieved on October 20, 2017 from http://cnnphilippines.com/news/2016/10/15/Prison-
gangs.html.
110
Yap, D.J (2011, June). 10 gangs hold key to the good life in prison Philippine Dialy Inquirer. Retrieved on October 20, 2017 from http://newsinfo.inquirer.net/13045/10-gangs-hold-key-to-
the-good-life-in-prison#ixzz4xuIXHvAq.
111
PEOPLE v DE LOS SANTOS, ET AL G.R. Nos. L-19067-6, July 30, 1965
112
Cabal, supra note 109.
113
Ibid.
114
Echeminada , P. (2015, October). Guns, drugs, sex toys seized in Bilibid raid. The Philippine Star. Retrieved on October 20, 2017 from
http://www.philstar.com/metro/2015/11/05/1518385/guns-drugs-sex-toys-seized-bilibid-raid
 Sanitary Conditions
Their place of confinement has been a perennial problem for the
prisoners/detainees. Old, dilapidated, and congested buildings, no longer
suited for human existence, defective comfort rooms resulting to unsanitary
conditions, lack of sleeping paraphernalia and, undersized cells with poor
ventilation and defective water system and even lack of potable water which is
a basic source of life are just some of the reasons that contribute to the
increasing mortality rate in the correction. 115 Moreover, according to the
report, inmates likened their meals which would look like a feed, mush or
worse, slop to the way cows are fed in ranches and often call their mealtime
as ranch time. The food, it said, is of little nutritional value and prepared in an
unsanitary way.116
To add, absence of adequate isolation rooms for communicable diseases,
inadequate fumigation for mosquitoes and its breeding grounds are some of the
additional issues that the correctional system has to address in the process of
rehabilitating the prisoners.117 Last July 2016, a cholera epidemic broke out at
Quezon Prison. In addition, reports have shown that prisoners have died of
tuberculosis and other respiratory diseases.118

Physical and Sexual Abuse

A number of inmates complained of various violations against their
person. These include denial of the right against torture, maltreatment/
physical injuries, sexual harassment/abuse against chastity among others.
More than a handful of detentions largely acknowledge the prisoners right to
be free from physical abuse and solitary confinement but the physical abuse
the inmates encounter and endure is through the system of mayores or
gang-lordships which is tolerated and condoned by prison guards and
officials. As a result, interminable physical violence and deaths are deemed to
be accepted in jails for they are condoned by the very officials who are expected
to uphold and preserve their basic rights.119
Despite the universal condemnation of torture and the safeguards in the
constitution, in the country the practice of torture and ill-treatment are still
continued. Despite of the safeguards against violence and unnecessary force,
authorities still use such techniques to assert authority, instill fear, inflict

115
The situation of the Philippine penitentiaries, supra note 107.
116
Gavilan, J. (2015, April). Looking into the food system of PH inmates. Rappler. Retrieved on October 20, 2017 from https://www.rappler.com/move-ph/issues/hunger/90133-food-system-
philippines-prisons-jails
117
The situation of the Philippine penitentiaries, supra note 107.
118
Prison Insider. Retrieved on October 20, 2017 from https://www.prison-insider.com/countryprofile/prisonsinphilippines
119
The situation of the Philippine penitentiaries, supra note 107.
immediate punishment, disorient and coerce within police stations and prison
cells.120
In one of the few official studies conducted on prisoner rape in the
Philippines, four percent of 552 female jail inmates surveyed reported to the
DILG that they had experienced sexual abuse while detained.121 Seven of the
women had been raped, while others were subjected to abusive conduct
including sexual touching, kissing, corrections officials exposing their genitalia,
and attempted rape. A more recent study found that ten percent of the women
detainees surveyed had had sex with jail officials prior to their transfer to the
Correctional Institution for Women (CIW), illuminating the widespread abuse of
women inmates by corrections staff.122

THE SYSTEMIC ISSUES IN THE CORRECTION and RESTORATIVE

JUSTICE
Even when inmates are stripped off their liberty, their human rights are
supposed to be never taken away from them. Now, the human rights violations
in the issues of overcrowding, poor security, poor sanitation, physical and
sexual abuse among others in the correctional system are far from being
restorative in nature. These degrading conditions are palpable violations of
human rights that restorative justice seeks to uphold.

And in the path of rehabilitating offenders towards social balance, their

human rights should be always upheld. However, when these perennial
problems in the countrys correctional system continue to be unsolved, the
Philippines goal of embracing restorative justice in the rehabilitation and
healing of offenders is far from reality.

IV. CONCLUSION
Advocates of restorative justice have continually emphasized the
effectiveness of this approach in rehabilitating and healing both victims and
offenders. However, this can only be made possible when the corrections, as
one of the pillars of criminal justice system, really take iron fists attitude in
implementing their rules and regulations and meeting their standards and
goals. The problems laid down above call for various correctional reforms,
improvements in the jail and prison systems including additional funding,
120
The use of torture in the Philippines. Preda Foundation (2017). Retrieved on October 20, 2017 from http://www.preda.org/media/research-documents/the-use-of-torture-in-the-philippines/.
121
An emerging human rights crisis: sexual violence in Philippine detention facilities. An Alternative NGO Report Prepared for the 42nd Session of the U.N. Committee Against Torture.
Retrieved on October 22, 2017 from http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/PHL/INT_CAT_NGO_PHL_42_9916_E.pdf
122
Commission on Human Rights of the Philippines (hereinafter CHR), On the Sexual Abuse and Torture of Women in Custody 1 (Oct. 2001) available on-line at
http://www.chr.gov.ph/MAIN%20PAGES/ about%20hr/advisories/pdf_files/abthr029.pdf (last visited Feb. 27, 2009).
personnel, facilities and equipment, jail and prison decongestion program and
activities, enhancing the parole and probation systems and strengthening and
mainstreaming restorative justice in the corrections system.

Moreover, since overstaying is one of the major reasons that results to

prison overcrowding which also causes multifarious issues, the court and the
prosecution as another pillars of the criminal justice system should do their
part to administer justice the speediest way possible in order not to deprive the
detainees of the liberty that they deserve.

And lastly, in order for restorative justice to be truly embedded in the

communitys view on criminality and punishment, the government should craft
a program where the community can get to know more about restorative
approach to justice. In this way, the government can educate the community
and take out the effect of stigma on criminal offenders as they try to reintegrate
back to the society. With that said, our countrys lawmakers should truly take
it to heart that healing and social balance rest on restorative approach to
justice.