MODULE 1

OVERVIEW OF THE CRIMINAL JUSTICE SYSTEM AND THE SO-CALLED RESTORATIVE JUSTICE

Pre- module questions:

1. What is the relationship between crime and law?
2. Describe the Philippine Criminal Justice System.
3. What is restorative justice?

OVERVIEW OF THE CRIMINAL JUSTICE SYSTEM AND THE SO-CALLED RESTORATIVE JUSTICE

Concept of Crime and Justice

Three Branches of the Philippine Government

1. Legislative Branch- Consists of a Senate and a House of the Representatives.

Power to create laws lies in this branch.

2. Executive Branch- composed of the Office of the President. The president has the
power to create Presidential Decrees during Martial Law. Executive Orders,
Proclamation Numbers, and Administrative Orders that have power and effect of
Laws.

3. Judicial Branch- power to check and balance the constitutionality of the laws
created.

Law- is a rule of conduct just and obligatory promulgated by legitimate authority for the
observance of common good.

Criminal law -is that branch of public law which defines crimes, treats of their nature and
provides for their punishment.

Crime- is an act committed or omitted in violation of public law forbidding or

commanding it.

Justice- is a scheme or system of law in which every person receives his/her/its due from
the system, including all rights, both natural and legal.

Criminal Justice System- is the system or process in the community by which crime is
investigated, and the person suspected thereof are taken into custody, prosecuted in
court and punished if found guilty, provision being made for their correction and
rehabilitation.

Looking at the definition of penal law clearly tells us that crime exists because of
the law that prohibits it. As the theory of the Logomacy states that, nullum crimen nulla
poena sine lege or there is no crime where there is no law punishing it.

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Criminal Justice

Criminal justice is a generic term that refers to the laws, procedures, institutions,
and policies at play before, during, and after the commission of a crime. As a modern
concept, criminal justice expresses two central ideas. The first is that criminals and victims
of crime have certain rights, while the second is that criminal conduct should be
prosecuted and punished by the state following set laws. By contrast, throughout ancient
history, criminal acts were resolved privately, often by blood feuds for murder and trial by
ordeal for other crimes. The biblical phrase "an eye for an eye" embodied the criminal
justice principles of ancient times. In ancient Athens, for example, citizens were left to
investigate and prosecute crimes with no government assistance. In this context, criminal
justice referred to all available means private citizens had to avenge the harm caused
by a crime.

Criminal justice has since evolved as a concept. In modern times, criminal justice
reflects developments in legal theory, social science, and politics, and changes in legal
systems. Private citizens are no longer charged with the duty to investigate and prosecute
crimes for personal vengeance. Instead, modern societies are built on a social compact
that governments are responsible for maintaining order in their jurisdictions. To achieve
order, governments created criminal laws, developed police systems, and established
courts and prisons. Governments funded criminal defense lawyers to represent the
indigent in legal proceedings and paid the salaries of judges to apply laws to the case
at hand. In this context, criminal justice is the system that prescribes the fate of the
criminal. It is also the system that provides recompense to the victim under the rule of law.
Criminal justice seeks to deter future crimes by creating penalties for criminal conduct
and rehabilitate criminals through incarceration. It is a system that delivers "justice"
through a punishment proportionate to the crime.

Evolution of Law

Code of Hammurabi

This is considered as one of the first known bodies of law. It was promulgated by
King Hammurabi who ruled the ancient city of Babylon in around 2000 B.C. The Code of
Hammurabi is a set of laws that was engraved on stone tablets, which were aimed to
establish property and other rights. The Code deals with the issues of theft, ownership,
sexual relationships, and interpersonal violence. The Code specifies a variety of corporal
punishment, and even death.

Roman Law

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 This was derived from the Twelve Tables, which was written in 450 B.C. These Twelve
Tables were a collection of basic rules related to family, religion, and economic life. The
tables are based on common and fair practices generally accepted among early tribes.

The Justinian Code consists of three (3) legal documents: (1) the Institutes; (2) the
Digest; (3) and the Code. The Justinian’s code distinguished between two major legal
categories: public and private laws. Public law dealt with the organization of the Roman
state, its senate, and governmental offices. Private law concerned itself with the
contracts, personal possessions, legal status of various types of persons, and injuries to
citizens. The civil and criminal law of today was influenced by this Roman Law.

Common Law

It had its origin in the early English society. Common law is a body of early unwritten
legal principles created from social customs, rules, and practices. Common law was legal
upon the official declaration that it was the law of the land by the English King Edward
the Confessor in the eleventh century. The authority of common law was further
reinforced by the decision of William the Conqueror to use popular customs as the basis
for judicial action following control over Britain in 1066 A.D.

The Magna Carta (Great Charter)

This was signed on June 15, 1215 by King John of England. The Magna Carta
guarantees basic liberties for all British citizens. One specific provision of Magna Carta,
designed originally to prohibit the king from prosecuting the barons without just cause,
was expanded into the concept of “due process of law” – a fundamental cornerstone
of modern legal procedure. Magna Carta has then been called “ the foundation stone
of our present liberties.”

Greek Laws

The Greek Law contributes to the Western thoughts about the law coming from
the ideas of great philosophers, such as Socrates, Plato, and Aristotle. Notions of justice
profoundly influences legal reasoning emerged from the Greek thinkers. The concept of
impartiality and common law against constructive law were regarded as early Greek
contributions that remain significant to contemporary society.

Canon Law

Also called ecclesiastical law, Canon Law is the body of laws made by or adopted
by ecclesiastical authority in the 12 th and 13th centuries for the government of the
Christian organization and its members. The impact of canon law propagated promptly
at the moment the bishop instituted themselves as transitory rules upon the downfall of
the Roman Empire in the West.

Germanic Law

The law of the Teutonic or Germanic tribes is a family of customary laws. The
Germanic tribes verbalized law tradition comprising of numerous features that could be

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viewed as democratic even though tribes are linked with primordial elements of law and
the code of boldness.

Philippine Laws

The early Filipinos have different forms of laws. These laws are written and unwritten
laws. The written law is one that is written at a definite time and process constituted or
formed by the legislatures. The unwritten law, on the other hand, is the product of
customs, traditions, and social culture of a society. The legal decisions of unwritten laws
are based on the forms of character. It is not classified and written but it controls the
behavior of the people living within that society.

In the early Filipino time, the written laws are formulated by the leader of the tribe
known as “datus”. They are responsible in regulating the peace and order of their
respective tribes. The two known written codes in the pre-Spanish era are the Maragtas
Code and the Kalantiao Code. These written laws are based on their practices, customs,
and traditions that have been practiced down from one generation to another.

Maragtas Code

It is considered the oldest known written body of laws in the Philippines. It has been
said to be written in 1250 A.D. by Datu Sumakwel of Panay.

Kalantiao Code

This Code was said to be the second oldest legal code in the Philippines. It was
written in 1433 A.D. by Datu Kalantiao of Panay.

In pre-Spanish time, the head of the government unit is the datu or rajah, or the
sultan or hadji in some places. The unit is composed of settlements or villages called
barangay (named after Malayan word balangay which means “boat”) that consist of
more or less 100 families. The datu is also the chief executive, lawgiver, chief justice, and
military head of the unit.

Components of Criminal Justice System in the Philippines

The Five Pillars

1. The Law Enforcement Pillar. This is the prime mover of the system, the first touch in
the process. This is also the most visible representative of the government in the
society. Though all the pillars are equally important, however, this pillar is very vital
to the system since failure to carry out the function properly may cause the
dismissal of the case.

2. The Prosecution Pillar. This pillar is composed of public prosecutors’ task to

evaluate the evidence the police have gathered and decide whether it is
sufficient to warrant the filling of charges against the alleged violator.

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 3. The Court. This is under the judiciary branch of government. The court shall have
the power to hear and try the cases before it. The judge, upon receipt of
complaint or information, shall conduct investigation to determine probable
cause for the issuance of warrant of arrest. Also, at this stage of criminal justice
system, judicial determination of the guilt or innocence of the accused is under
consideration.

4. The Corrections, this pillar shall cater convicted felons. It is responsible for the
safekeeping and reformation of the criminals. The corrections pillar shall assure
that upon the release of the inmate, he is already reformed and ready to be
integrated in the community.

5. The Community. The purpose of this pillar is fundamentally geared toward the
support of the program of the Corrections. When the ex-convict is reintegrated to
the community, it is understood that he has been wholly reformed and is ready to
engage himself again. Thus, the community should accept and assist the
reformed individual to the new life.

Overview of Restorative Justice

Restorative justice is a process whereby the party in a particular offense-victims,

offenders, and community come together to resolve collectively how to deal with the
aftermath of an offense and its implications in the future. It also embraces a wide range
of human emotions including healing, mediation, compassion, forgiveness, mercy, and
reconciliation. Under restorative justice, victims and offenders assume each other’s
responsibilities. This process involves the notion of reparation, not punishment, at the
center.

The ERET ways of understanding Restorative Justice, E stands for Empowerment.

Empowerment of the parties involved in the wrong committed. R stands for Repair. Crime
causes harm and justice requires repairing that harm done. E stands for Encounter, where
in the best way to determine how to do that is to have the parties decide together in
settling its disputes. And lastly, T stands for Transformation. This can cause fundamental
changes in people, relationships, and communities as a whole. Other books enumerated
four characteristics of a Restorative Program or the Four Key Values of the Restorative
Program:

1. Encounter – this is created when the victims, offenders, and community members
who voluntary meet to discuss the crime and its effect or aftermath. The elements
of encounter are meeting, narrative, emotion, understanding, and agreement.

2. Amends – this is done when the offender take the necessary steps to repair the
harm that they have caused and inflicted. The four elements of making amends
are apology, changed behavior, restitution, and generosity.

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 3. Reintegration – aims to restore victims and offenders as a whole. The elements of
reintegration are acknowledging human dignity and worth, providing material
assistance, and offering moral spiritual direction.

4. Inclusion – creates opportunities for the parties with a price for a specific crime to
participate in its resolution. Examples of inclusions are invitation, acknowledgment
that each individual are unique and has different views, and that he or she may
want some other alternative ways or approaches.

Restorative Justice – Core Values

On the discussion presented above we are able to understand the concept of

restorative justice. Furthermore, restorative justice is based on the balance focused on
the offender, victim, and community. The values according to each participant, are
offender (apology or shaming and reintegration); the victim (the harm and opportunity
of forgiveness); and community (relationship). The outcomes and measurements for
restorative justice program are based on the following values:

The Offender

Apology – This is done by the offender either through oral or written form,
recognizing his accountability, and not just seeing himself as a victim and realizing and
acknowledging the harm and pain that was experienced by the victim.

Reintegration – making his or her place back in the community, particularly done
through the action plan developed under the healing and repairing the harm.

The Victim

Harm – this is done through assessing the harm done, developing a case strategy
or plan to repair the harm, and creating an action plan for those responsible for healing
and repairing the harm.

Forgiveness – the opportunity is given to the victim to accept an apology from the
offender and to extend forgiveness.

The Community

Relationship – this is done through healing broken relationships and creating new
relationship.

Theories of Restorative Justice

In studying the concept of restorative justice, many principles and concepts are
established. The following are some theories established on restorative justice.

1. Reversal of moral disengagement

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 This is a moral-psychological theory concerned with the psychology or
behavior of a person as observed in relation to moral matters. This is manifested or
expressed in terms of the moral judgment of right and wrong. Hypothesis shows that
moral re-engagement plays an important role in restorative justice that begins with
the observation of activities that when someone engages in activities which are
harmful to others, they will tend to keep their conscience silent by means of various
internal mechanisms or moral disengagement.

a. Rationalization of the good consequences or practice which one thinks

outweighs the bad acts done. Bandura calls it moral justifications. For
example, “I robbed rich and corrupt businessmen in order to give to the
poor.”

b. Minimizing or lessening the accountability of one’s wrongful activity, such

as the offender’s claim that “it wasn’t my fault. I was just told to do it “ or “I
was just a look out and did not participate in the commission of the crime.”

c. Denial of the seriousness of the harmful effects on others. Examples are “it’s
ok, they will be fine”, or “I only get a small piece of their wealth, they don’t
matter.”

d. Blaming, discriminating, or otherwise derogating the victim. Examples are

“It was her (the victim’s) fault, because she displayed her jewelry in public”
or “she (the victim) was a prostitute, that’s why she was raped.”

These concepts are highly important in explaining and predicting the

effectiveness of the criminal justice interventions. They can be used to explain and
predict the transformative power of well-run restorative justice meetings. In meetings, the
victim tells the offender face to face about the harm and pain their action caused,
internal mechanisms if disengagement are challenged, and in most cases, they are
successfully reversed. Such reversals of moral disengagement are important in criminal
justice, not only for successful offender reintegration, but also from the point of view of
the victim restoration. They form a part of healing experienced by the victims because,
as restorative justice, the sight of disengaged and unmoved offenders is aggravating and
distressing to the victim.

However, offenders are not the only ones who morally disengage. There are good
reasons to believe that a similar mechanism of disengagement often

Distinction between Restorative and Punitive Justice

The following table illustrates the differences in the approach to justice between
Retributive Justice and Restorative Justice.

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 Retributive Justice
Crime is an act against the state,
a violation of a law, an abstract
idea
The criminal justice system
controls crime
Offender accountability defined
as taking punishment
Crime is an individual act with
individual responsibility
Punishment is effective:
• Threats of punishment deter
crime
• Punishment changes behavior
Victims are peripheral to the
process
The offender is defined by deficits
Focus on establishing blame or
guilt, on the past (did he/she do
it?)
Emphasis on adversarial
relationship
Imposition of pain to punish and
deter/prevent
Community on sideline,
represented abstractly by state
Response focused on offender’s
past behavior
Dependence upon proxy
professionals
Based on this, Restorative Justice is much more community-centered and focuses
on making the victim whole as compared to Retributive Justice.
Another illustration is presented below by Madison Racial Justice Resource Guide.
Retributive Justice
Misbehavior/offenses are
committed against authorities
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Restorative Justice
Crime is an act against another
person and the community
Crime control lies primarily in the
community
Accountability defined as
assuming responsibility and
taking action to repair harm
Crime has both individual and
social dimensions of
responsibility
Punishment alone is not
effective in changing behavior
and is disruptive to community
harmony and good relationships
Victims are central to the
process of resolving a crime
The offender is defined by
capacity to make reparation
Focus on the problem solving,
on liabilities/obligations, on the
future (what should be done?)
Emphasis on dialogue and
negotiation
Restitution as a means of
restoring both parties; goal or
reconciliation/restoration
Community as facilitator in
restorative process
Response focused on harmful
consequences of offender’s
behavior; emphasis is on the
future
Direct involvement by
participants
Restorative Justice
Misbehavior/offenses are
defined as acts against victims
 and are violations of rules of law
or policies
Offender is accountable to
authorities for the misbehavior or
offense.
Accountability is equated with
suffering. If offenders are made to
suffer enough (i.e. expulsion or
suspension) they have been held
accountable.
Victims are not the primary focus
of the process.
Offenders are defined by the
misbehavior/offense. Victim is
defined by material and
psychological loss.
Misbehavior/offenses are the
result of individual choice with
individual responsibility
and the community, which
violate people and community
trust.
Offender is accountable to the
victim and the community.
Accountability is defined as
taking responsibility for
behaviors and repairing the
harm resulting from those
behaviors. Success is measured
by how much reparation was
achieved.
Victims and community are
directly involved and play a key
role in response to
misbehavior/offenses.
Offenders are defined by their
capacity to take responsibility
for their actions and change
behavior. Victims are defined by
losses and capacity to
participate in the process for
recovering losses and healing.
Misbehavior/offenses have both
individual and social dimensions
and are the result of individual
choice and the conditions that
lead to the behavior.

In summary, restorative justice offers a more humane and holistic approach to

justice as it focuses on the needs of victims and offenders, instead of the need to satisfy
the rules of law or the need of the community to give out punishments. Victims are given
an active role in a dispute and offenders are encouraged to take responsibility for their
actions “to repair the harm they’ve done – by apologizing, returning stolen money, or (for
example) doing community service.” Restorative Justice is based on a theory of justice
that focuses on crime and wrongdoing as acted against the individual or community
rather than authorities.

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