PHILIPPINE CONSTITUION

RIGHTS AND RESPONSIBILITIES

Traditional criminal justice emphasizes individual rights, exemplified by the expanding gamut of
rights accorded the accused under the provisions of "due process". Personal freedom requires the
State to protect and guarantee these rights. As the model for modern society becomes
increasingly contractual and individualistic in nature, with a necessarily correlative decrease in
the mutualist nature of society, the need for State intervention for the protection of one's rights
increases. This illustrates the limits of the rights-based approach.
Even when individual rights are guaranteed to all by statute and state force, the fear of losing
those rights, although suppressed, remains because we perceive the self-interest of others as a
constant threat to our individual rights. In order to protect our individual rights, therefore, we
surrender most of our conflicts to officials of state who in turn respond punitively to the
perceived violations (Cordella, 1991 at 33).
So even when rights are accorded the individual, two forces work to diminish those rights: the
rights accorded other individuals, and the increased power of the State to intervene on behalf of
the individual. The punitive response is rooted in fear as individuals become increasingly aware
of other self-interested individuals asserting their own rights.
The antithesis of this view of society is predicated on the belief that conflict is a "weakening of
communion among its members" requiring restoration, which necessarily involves an attempt by
the community to reintegrate the parties to the conflict (Cordella, 1991 at 31). Instead of freedom
of the individual being an end unto itself, this model views it as a means to achieving a
meaningful and fulfilling existence within the context of community.
Restorative justice, in many ways, affirms the latter model of society. Conflict is a breakdown in
the relationship between members of the community. With its emphasis on responsibilities,
restorative justice is less likely to frame legal issues in terms of individual rights. Unlike the
traditional system, restorative justice does not assume the necessity of an adversarial context in

which assertion and affirmation of individual rights through formal processes are the only means
of pursuing justice. Hence, it addresses these issues within a different framework--that of
restoration and collective problem-solving through informal processes. Since the State does not
have an exclusive or dominant role in protecting rights, the parties themselves play crucial roles
in assuming their responsibilities. The State's responsibility to the parties is to create an
environment in which the parties can resolve the conflict collectively.
The ways in which we have come to view socio-legal issues have been shaped by the dominance
of the State in adjudicating disputes. To fairly evaluate the potential of restorative justice to
satisfy the concerns about these issues we must be willing to reconsider our many assumptions
about the necessity of adversarial, formal processes to achieving justice based on the rightsoriented approach. We must be willing to view these issues from a restorative perspective which
emphasizes responsibilities and collective conflict-resolution through informal processes.
DUE PROCESS
All countries accord the accused certain procedural protections when faced with prosecution, or
punishment. The notion of "due process" counterbalances the State's powers to arrest, prosecute,
and carry out the sentence of a conviction.
Among the protections internationally accepted as included in the notion of "due process" are:

the right to be presumed innocent;

the right to a fair trial; and

the right to assistance of counsel.

Concerns have been raised about the ability of restorative processes to protect the accused's due
process rights, since entrance into these processes often requires admission of guilt. This raises
the question of informed consent and voluntary waiver of right.
Mediation usually requires the accused to relinquish his/her rights to contest charges and to legal
counsel in turn for the opportunity to negotiate his or her sanction. Accused individuals may
agree to mediation, admitting guilt, when in fact the accused is not legally guilty, in order to

avoid a complicated, lengthy disposition in a formal setting. To protect the due process rights of
the accused, the accused should not be required to waive legal counsel for the duration of the
process, and that no agreement should be final without review and approval of the accused's
lawyer.
Some have argued that without court oversight of police investigatory powers, restorative
programs run the risk of undermining procedural protections to be free of unlawful searches and
seizures and excessive uses of force. The admission of guilt required by most restorative
programs suspends the court's scrutiny of prior investigative techniques. At the adjudicatory
stage, restorative processes, and informal responses generally, have the potential to induce the
accused to admit to facts and/or guilt despite the accused's innocence, in order to get a speedy,
informal process.
A restorative justice system would need to address such concerns. Here are some approaches that
might be considered:
PRESUMPTION OF INNOCENCE
In traditional criminal justice, the State bears the burden of proving the accused's guilt. Unless
and until that burden is carried by the State, the accused is presumed innocent. However, some
restorative processes require an admission of guilt, others a declination to deny guilt, and still
others some acceptance of civil liability. In this sense, restorative processes may compromise the
accused's right to a presumption of innocence.
Two means of preserving this right to a presumption of innocence could be available in a
restorative intervention: (1) the accused could retain the right to terminate the restorative process
in order to deny guilt, opting for a formal process at which guilt would necessarily have to be
proven and (2) the accused could retain the right to appeal to the courts to have an agreement
reached in a restorative process struck down, if they were not aware of legal defences (or
mitigating circumstances) available to them at the time they admitted guilt.

In addition, legal counsel should be available at all times to inform the accused of the
implications of his/her participation in a restorative process. The American Bar Association has
recommended that participation in a restorative process should not be considered a formal
admission of guilt, and that statements made in the process should be inadmissible in a formal
court proceeding .
THE RIGHT TO A FAIR TRIAL/COERCION
To the extent that formal processes remain available to the accused at all times during and after a
restorative process, the accused's right to a fair trial has been preserved. However, if the accused
is required to waive this right to participate in a restorative process, the accused must be
informed of the implications of his/her decision to opt for the restorative intervention. As an
additional protection, the accused could be allowed to appeal any agreement reached in a
restorative process on grounds of innocence.
Warner has argued that since restorative processes offer an alternative to uncertain, costly and
lengthy formal court proceedings, they might be so attractive as to amount to "coercion"
inducing the accused to forgo a trial. This concern, of course, is not unique to restorative
interventions; it applies as well to existing, accepted alternatives to a full-length trial, such as
pleas of guilty or diversion programmes. There seems to be no reason to believe that this form of
"coercion" should raise more concern with restorative process that with other alternatives
currently used by criminal justice officials.
Providing the traditional system as an alternative, exacting no less accountability from the
offender than the traditional system would otherwise, and allowing the victim and offender to
dominate participation in the restorative process should minimize coercion. In this way, coercion
may be minimized. Minimizing coercion when possible is important not simply in deference to
the due process rights of individuals, but also because coercion could have a deleterious effect on
the restorative process itself.
THE RIGHT TO ASSISTANCE OF COUNSEL

At all points during the restorative informal process the accused could be informed and reminded
of his/her rights; the most effective means of assuring informed decision-making is through the
assistance of legal counsel.
However, restorative justice advocates argue that once the accused chooses to participate in a
restorative process he/she should primarily act and speak on his/her own behalf. Their position is
that to allow attorneys to represent the participants at all points during the restorative process
would be to destroy many of the intended benefits of the encounter, such as direct
communication and expression of feelings, and proactive collective decision-making. To allow
attorneys to take over the process would be to "essentially re-formalize processes designed to be
informal". However, attorneys can also be very helpful in advising their clients on the best
possible outcome that can and should be expected.
EQUAL PROTECTION
Some question the ability of a restorative justice system, based on informal processes as it is, to
equitably administer justice among different participants. Critics of restorative processes warn
that they may perpetuate existing social inequities where one party has more economic,
intellectual, political or physical power. Disparate outcomes for similar offences based on some
non-offence variable (e.g., race, social-standing, etc.) would reflect discriminatory operation.
Often there will be an unequal distribution of power between the parties participating in a
restorative process. Examples of coupled parties having an inequitable distribution of power
include rich corporations and individual employees, spousal relationships involving physical
and/or verbal abuse, and the parent/child relationship. It must be remembered, however, that
much crime is committed by disadvantaged persons against others who are also disadvantaged.
A party with less power may accept an agreement that gives him/her much less than he/she could
have obtained if the power imbalance did not exist. Given the expectation that the mediator
remain neutral, a more compliant party will give up more in negotiations. The problems of
inequality challenge the mediator's ability to remain neutral as the mediator may be tempted to

support the position of the weaker party. When the mediator is of the same or higher socialstanding than the participants, this could lead to a form of control based on social standing.
Research suggests that restorative justice processes have similar variance rates in severity of
sanctions to adult courts based on racial and gender factors. Restorative justice, then, may be no
more prone to institutionalized discrimination than is the traditional criminal justice system.
Nevertheless, restorative processes must be evaluated regularly to make sure that programme
selection and operation are non-discriminatory.
Three means of compensating for inequities could be implemented. First, the mediator could
support the weaker of the parties in the process. For example, the mediator could help a less
articulate participant express feelings, thoughts and emotions. Second, attorneys could advise
parties with less bargaining power not to accept an agreement that is inequitable or was unfairly
obtained. Finally, certain cases may be rejected. For example, cases involving landlords who
seek to settle with some tenants in order to avoid the aggregate bargaining power of a block of
tenants may not be appropriate for informal processes if the landlord is wielding his power to
increase his bargaining position.
One must acknowledge, however, that some inconsistency may result from respecting plural
forms of subculturalism. As Braithwaite notes, a certain amount of inconsistency is probably
healthy, given society's diversity of values and cultures. Inconsistent outcomes may result from
accommodating diverse subcultures. In fact, given restorative justice's application of universal
law to particular situations within a subcultural context, allowing the participants to work out
their own resolution to the conflict, may even have the potential to reduce institutionalized
discrimination as we know it today. Restorative processes have the potential to be more
responsive to cultural diversity in the administration of justice than is the traditional system of
criminal justice. At the very least, restorative processes may challenge misconceptions in cases
involving racial strife, increasing understanding among different subcultures.
Restorative justice also has the potential to provide equal protection on an international scale.
Restorative justice may provide a framework that gives conceptual consistency to international

standards and norms in criminal justice. The focus upon balance by U.N.-generated documents
places a premium in balancing the interests of all parties. Further, these documents highlight the
necessity of the provision of procedural rights for the accused, as well as the victim.
Social injustices in society are bound to influence any system of justice. It stands to reason that
inequities will exist within a restorative system. Restorative justice has the potential to engage
these problems as communities become involved.

RIGHT OF THE ACCUSED

It has been argued that victims do not receive equal protection from the criminal justice system's
administration of justice because victims' needs and desires are too often not taken into account
by prosecutors and criminal justice professionals. In fact, victims' interests may deviate from the
State's interests. Victims' rights advocates argue that is patently inequitable to the victim to attend
to the needs--material, psychological, legal, etc.--of the offender while taking no responsibility
for the well-being of victims.
At the most fundamental level of advocacy, victims seek standing--to have rights of participation
in the process, to wield their influence and protect their interests. Among other things, this entails
the rights to give testimony during the guilt and sentencing phases; to receive reparations; to be
informed of court proceedings; and to be represented by counsel. Some victims' rights advocates
pursue legislative recognition of victims' rights, while others pursue constitutional remedies.
Critics of victims' rights advocacy warn that expanding victims' rights could compromise
defendants' rights of due process. However, since restorative justice places a premium on
proactively involving both victim and offender, granting rights of participation to victims need
not compromise rights accorded to the accused.

REVISED PENAL CODE

NORM CLARIFICATION

A criticism of mediation and informal techniques generally is that they lack the symbols of
morality offered by the retributive paradigm. Criminal law is characterized by norms and values
affirmed by society. Since mediation focuses on individuals and the settling of personal conflict,
it fails to symbolically express the violation of societal norms and values. Therefore, it fails to
clarify societal norms and values. Bussman further questions whether individual parties to
mediation can act on their own behalf and as representatives of the community. To the extent that
they do not, communally-held norms and values will be absent from those processes.
Others argue that informal processes foster moral development as the parties to the mediation
work on making things right out of what is/was wrong. The value of the process is in mutual
conflict-resolution. The outcome can sustain and express the moral order, but more importantly
the process itself leads to norm-setting. Restricting the process to what meets the narrow legal
definition of unacceptable conduct and the facts relevant to that discussion undermines the
process' ability to provide opportunities for norm-clarification.
Although restorative justice may offer a less effective means of expressing community outrage
about crime than the retributive paradigm, it may be better suited to furthering moral
development. With its emphasis on mutual problem-solving, restorative justice promotes
communication, negotiation, compromise and responsibility. In other words, while criminal
justice expresses in brood terms many of the universal norms held by a society, restorative
processes help the parties understand and clarify those norms and values.

Restorative justice reinforces both communal traditions and universal norms, while the
traditional system through formal processes tends to exclusively perpetuate the latter. Unlike the
traditional system, restorative justice creates a space where consensus can be reached; which, in
turn, promotes community moral learning. The educative function of law is satisfied by this
community moral development, as parties learn from one another. Community moral
development provides the educating function that proportionality, for a retribution-oriented
system, seeks to achieve. This moral development is increased as representatives of the
community are included as parties.
Parties to the conflict represent the interests of the community to which they belong--defined as a
group of persons linked by a network of common interests. The value of the restorative process is
the moral education achieved through the active participation of the parties in the absence of
formal rules and procedures. For law is not simply a set of rules and procedures, although many
who participate in juvenile and criminal justice will experience it as that. Law is also an
expression of values and norms. It is as those universal norms are tested, reinforced and adapted
in the context of particular conflicts and communal traditions that moral education occurs; we
learn better what it means to do justice.
PROPORTIONALITY
Proportionality has to do with the extent to which sanctions similar in severity are imposed on
offenders committing similar offences. Proportionality, for traditional criminal justice, satisfies a
sense of retributive fairness; it is cruel and unusual to impose sanctions of different severity on
different offenders who have committed essentially the same crimes.
Some argue that restorative justice could impose disproportionate sanctions on offenders
committing similar offences, since it allows different victims to place different demands on
offenders who may have committed similar offences. Some victims may only want a simple
apology, while others may expect full restoration by the offender.
Four responses have been made to this criticism. First of all, any informal processes used in a
diversionary scheme would necessarily present problems of consistency and proportionality. To

say that restorative processes are illegitimate on this basis is to say that all informal processes are
illegitimate. This would effectively elevate formal procedures of liberal Western democracies
above the informal procedures of indigenous cultures.
Secondly, the traditional criminal justice system has not been successful at eliminating this
problem. Research indicates that many of the same factors that influence the severity of
sanctions imposed in restorative processes do likewise in traditional processes. Research in
Brussels indicates that subjective factors--attitude of minors, support of the family, and situation
at school--were taken into account when imposing a number of hours of community service on
juveniles committing similar offences. This, at times, resulted in disproportionate number of
hours worked.
In practice, the formal justice system strikes a balance struck between uniformity and flexibility.
As the traditional system takes account of mitigating and aggravating factors to either reduce or
increase the "average" sanction in a formal process, a restorative process allows the parties to
consider the particular circumstances surrounding the crime when negotiating an agreement.
Third, guidelines and rules could be developed to limit the likelihood of unduly harsh sanctions
being imposed. An oversight role given to the courts could assure that there are no great
disparities in sanctions imposed on offenders in informal processes. Some suggest that this
concern should be limited to restorative processes that result in incarcerative orders or punitive
sanctions that exceed those that formal courts would typically impose. One might, therefore, give
an appellate role for courts overseeing the agreements reached in restorative processes in which
the courts could strike down agreements that are overly oppressive.
Finally, consistency and proportionality of outcomes serve "abstract notions of justice" within a
traditional system which is at odds with the values underlying a restorative system. A traditional
system values proportionate outcomes of antiseptic formal processes at the expense of
proactively involving the victim and the offender. Conversely, restorative justice seeks to restore
the social imbalance within the affected community caused by the crime. In other words, the two
systems of justice operate on two fundamentally different foundations, which ultimately shape

their different conceptions of fairness. This in turn affects the relative importance each gives to
proportionality.
Proportionality is how retributive justice satisfies notions of fairness. Focused as it is on
punishment and "just deserts" retributive justice must result in proportionate outcomes to achieve
legitimacy. Restorative justice operates on a fundamentally different conception of fairness--not
absolute uniformity, but satisfaction of the participants in the process. Proportionate outcomes,
then, become secondary to its primary aim of proactively involving the victim and the offender
in a process that handled them fairly. The debate over proportionality becomes a debate over
which paradigm of justice, and all of its implications, one subscribes to and seeks to achieve.
With its plurality of sentencing goals--deterrence, incapacitation, rehabilitation, and retribution-traditional criminal justice often yields disparate imposition of sanctions on offenders
committing similar offences.
Restorative justice advocates, on the other hand, argue for a single overarching purpose such as
the reintegration into safe communities of victims and offenders who have resolved their
conflicts. They suggest that this would be the determining goal, limited only to the extent that
public safety requires that the offender be incapacitated because he/she presents such a high risk
of seriously re-offending and injuring others. Resolution of the conflict would be the primary
aim, limited only by a compelling, overriding public safety reason for incapacitation.
The amount of a particular sanction would be based on the nature and gravity of offence and
harm, paid in one of several equivalent units of a common currency. The method could be
determined on the basis of which sanctioning method is most successful at preventing crime, and
which is most appropriate for the particular offender (accounting for economic inequities).
Retributivists anchor the seriousness of both the crime and punishment to the extent to which
each impedes the standard of living of the typical person. Restorative proportionality allows the
parties involved in a restorative process to substitute real persons for the abstract "typical"
person. The parties then can negotiate an agreement comparing it to the range of possible

alternatives. Restorative proportionality then links the severity of the harm to the degree of
"'restorative effort'" required by the offender.
Participants in a restorative process would be provided with a range of alternative sanctions for
the typical offence involved, with opportunity to alter the sanction within this range to take
account of the particular circumstances surrounding the commission of the offence. If an
agreement could not be reached, a sentencing judge could impose the sanction within the
pertinent range. If the victim's actual loss was less than the minimum established, the victim
would be paid the actual amount of loss, with the remainder put into a victim compensation fund
for those victims whose losses exceeded the range.
Disparity between sanctions imposed may arise when the offender is sentenced according to the
offence alone; according to the actual harm caused alone; or when offenders have different
abilities to make reparations. In part, this disparity may be alleviated by the use of different
sanctions, but with equivalent severity. A system of units of comparable severity may be derived
for sanctions. For example, while a $1,000 fine may be relatively inconsequential to a wealthy
offender, it may be relatively burdensome to a poor offender. To exact sanctions with equivalent
severity, the wealthy offender might be required to perform a number of hours of community
service in lieu of paying the $1,000 fine. The Swedish "day fine" approach, which bases the
sanction on the offender's daily wages, multiplied by a figure that represents the seriousness of
the offence, is based on this principle.

RULES OF COURT
FAIRNESS
In traditional criminal justice, fairness means that the prescribed procedures to be followed in a
prosecution have been adhered to. Fairness is measured by the extent to which procedures were
followed, not be whether they achieved a result that satisfies the community, victim or offender.

Participants in restorative processes appear to have significantly different conceptions of fairness

than those of the traditional system when it comes to achieving justice for the parties. Studies
show that victims and offenders are significantly more likely to be satisfied with participation in
a mediation programme, and to experience a greater sense of fairness, than with participation in
traditional processes. Victims ranked the following factors as the most significantly related to
their post-mediation understanding of fairness:
1.

providing help for the offender;

2.

paying back the victim for losses; and

3.

receiving an apology from the offender.

While offenders ranked the following factors as the most significantly related to their postmediation understanding of fairness:
1.

paying back the victim for losses;

2.

personally "making things right"; and

3.

offering an apology to the victim.

DISCRETION
Someone must make the initial decision to send a particular case to a restorative process, to
traditional criminal justice proceedings, or to some amalgamation of the two. Restorative
processes rely on voluntary participation by the parties, which means that each person decides
whether or not a case is handled in a restorative programme. The traditional criminal justice
system puts this discretion in the hands of the prosecutor, except in cases of mandatory
prosecution.
Absent some overriding compelling safety justification, then, restorative interventions put a
premium on vesting discretion in the victim and the accused. An initial assessment of the security
and safety of the parties could be made by a government official (perhaps judge), since the

government is in the best position to provide not only physical protection, but protection of the
parties' rights. Once it is determined that all parties are secure, the victim and the accused could
then evaluate the alternative methods of proceeding with the case. If they are willing to pursue a
restorative process, then they should be allowed to do so; if otherwise, the case should proceed
through the traditional formal processes. In this sense, discretion in a restorative system is vested
in all interested parties.

RESTORATIVE JUSTICE WILL AFFECT THE PRESENT JUDICIAL SYSTEM BY:

Substantially reducing repeat offending for some offenders, although

not all,

Reducing repeat offending more than prison for adults and at least as
well as prison for youths,

Doubling (or more) the offences brought to justice as diversions from

criminal justice,

Using as a diversion, it helps reduce the costs of criminal justice,

Providing both victims and offenders with more satisfaction that justice
had been done than did traditional criminal justice,

Reducing crime victims' post-traumatic stress symptoms and the

related costs, and

Reducing crime victims' desire for violent revenge against their

offenders.

REFERENCE:
http://restorativejustice.org/