Comparison to our Law now with RJ (adversarial vs.

restorative)

Restorative justice then is a different way of thinking about crime and

our response to crime. It focuses on the harm caused by crime: repairing the
harm done to victims and reducing future harm by preventing crime.
Restorative justice requires offenders to take responsibility for their actions
and for the harm they have caused and seeks redress for victims,
recompense by offenders and reintegration of both within the community.
Furthermore, it is achieved through a co-operative effort by communities and
the government.

Adversarial System Restorative Justice

Crime is defined as a
violation of rules, and a
harm to the State
Victim is inhibited from
speaking about his/her loses
and needs
Crime is seen as a harm to the
victim and communities
Victim is central to the process
of defining the harm and how it
might be repaired

Offender, victim and Offender, victim and community

Community remain passive are active and participate in the
and have little resolution resulting from the
responsibility for resolution restorative forum

Communitys role is limited Community is actively involved

in holding the offender
accountable, supporting the
victims and ensuring the
opportunities for offenders to
make amends

Controlled and operated by Overseen by the state, but

the state and professionals usually driven by
who seem remote communities

Offender is blamed, The long term protection of

stigmatized and punished
the public mandates a focus
on the methods of problem
solving that include the
reintegration of the offender
into the community and
preservation of his dignity

Repentance and Repentance and forgiveness

forgiveness are encouraged
 are rarely considered
Assumes win-loss outcome Makes
possible win-win
outcome
Miranda Doctrine v Restorative Justice

The Miranda Doctrine is enshrined in Article 3, Section 12 (1) of the

Constitution, which provides:
Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he must be provided
with one. These rights cannot be waived except in writing and in the
presence of counsel. These rights cannot be waived except in writing
and in the presence of counsel.
Basically, Miranda Doctrine requires the offender to have a competent
and independent defense counsel of his own choice.

In early stage of restorative justice lawyers were not allowed to

participate in the meetings between victims and offenders. Though, both
the victim and the offender are allowed to consult a lawyer before agreeing
to participate. The role lawyers should play in restorative justice programs is
a provocative and complex issue.

The Miranda Doctrine provides that the offender has the right to
remain silent, anything she/he will say can and will be used against him/her
in a court of law. In Restorative justice, offender is required to accept
responsibility and admit liability for their conduct.

In any case, there will be contradicting issues about the Miranda

Doctrine and Restorative Justice. Miranda Doctrine preserves the belief that
all people are innocent until proven guilty. The offender in restorative justice
admits guilt and takes responsibility to his action as distinct from being
merely punished or be in jail.

Benefits/Importance of Restorative Justice

Restorative justice primarily focuses on the life of the victim and

offender. The satisfaction of both parties is the most important in restorative
justice.

Victims get the opportunity to:

Obtain information ask questions of the offender to understand
what happened and the underlying reasons for the offence
Express the impact directly tell the person who caused them
harm how their actions have affected them
 Be empowered be part of the decision-making process
regarding what will happen next and how to deal with the
aftermath of the incident
Obtain restitution be able to ask for restitution, both concrete
and symbolic
Have control over the process and outcome participate how
they want, and put forward requests for restitution.

The community gets the opportunity to:

Be recognized and participate as secondary victims attention to
their concerns as victims
Be empowered be part of the decision-making process
regarding what will happen next and how to deal with the
aftermath of the incident
Build community responsibility opportunities to (re)build a
sense of community and mutual accountability

Offenders get the opportunity to:

Take accountability opportunity to take accountability for the
offence and meet face-to-face with the victim and community in
order to repair the harm done
Undergo personal transformation opportunity to address and
heal the underlying issues that contributed to their offending
behavior
Reintegrate through taking accountability and righting the
wrongs offenders may feel good about being in the community
again.

The thrust toward a more community- and victim-based system of

justice is not a new phenomenon, but rather a resurgence of a historically
prevalent approach to crime and conflict. Our current criminal justice
paradigm, which we consider so natural, so logical, has in fact governed our
understanding of crime and justice for only a few centuries. It is a non-
judicial and non-legal community-based approach that has dominated
Western history. Restorative justice has been the dominant model of criminal
justice throughout most of human history. - Department of Justice Canada
(2010, January 8 )

The approach of restorative justice, which holds offenders accountable

in meaningful and constructive ways, can contribute to a more satisfying
experience of justice for victims and communities. Both victims and
offenders have high levels of satisfaction with the process and the outcomes.
Studies also suggest that offenders are more likely to follow through with
restitution or community service, and that there is some reduction in repeat
offending.

The limitations of Restorative Justice

There will always be a need for the traditional justice system, as some
cases are simply not appropriate for Restorative Justice programs. Remember
that restorative justice can only take place when:
An offender admits guilt, accepts responsibility for his/her actions
and agrees to participate in the program;
The victim of the crime freely agrees to participate in the program
and without feeling pressured to do so; and
Trained facilitators are available in the community and a restorative
program is in place.

There are offenders who are not appropriate candidates for such
programs, as well as victims and their families who do not want to have a
role in restorative programs. Even if an offender participates in a RJ program,
he/she may still be dangerous and therefore must still be sent to prison. Also,
a person who has been wrongfully charged with an offence must have an
opportunity to prove his/her innocence in a court of law. Thus, restorative
justice programs are not appropriate in every situation.

Laws that support Restorative Justice

1. Republic Act No. 9285

AN ACT TO INSTITUTIONALIZE THE USE OF AN ALTERNATIVE DISPUTE
RESOLUTION SYSTEM IN THE PHILIPPINES AND TO ESTABLISH THE
OFFICE FOR ALTERNATIVE DISPUTE RESOLUTION, AND FOR OTHER
PURPOSES
Means any process or procedure used to resolve a dispute or
controversy, other than by adjudication of a presiding judge of
a court or an officer of a government agency, as defined in
this Act, in which a neutral third party participates to assist in
the resolution of issues, which includes arbitration, mediation,
conciliation, early neutral evaluation, mini-trial, or any
combination thereof.

2. AM. No, 11-1-6-SC-PHILJA

CONSOLIDATED AND REVISED GUIDELINES TO IMPLEMENT THE
EXPANDED COVERAGE OF COURTANNEXED MEDIATION (CAM) AND
JUDICIAL DISPUTE RESOLUTION (JDR)
The purposes of CAM and JDR is to put an end to pending
litigation through compromise agreement of the parties and
 thereby help solve the ever-pressing problem of court docket
congestion. It is also intended to empower the parties to
resolve their own disputes and give practical effect to the
State Policy expressly stated in the ADR Act of 2004 (R.A. No.
9285), to wit: to actively promote party autonomy in the
resolution of disputes or the freedom of the parties to make
their own arrangement to resolve disputes. Towards this end,
the State shall encourage and actively promote the use of
Alternative Dispute Resolution (ADR) as an important means
to achieve speedy and impartial justice and de-clog court
dockets.

Henceforth, under the expanded coverage, the following cases shall be

referred to CAM and be the subject of JDR proceedings:

1. All civil cases and the civil liability of criminal cases covered
by the Rule on Summary Procedure, including the civil liability
for violation of B.P. 22, except those which by law may not be
compromised;
2. Special proceedings for the settlement of estates;
3. All civil and criminal cases filed with a certificate to file action
issued by the Punong Barangay or the Pangkat ng
Tagapagkasundo under the Revised Katarungang
Pambarangay Law
4. The civil aspect of Quasi-Offenses under Title 14 of the
Revised Penal Code;
5. The civil aspect of less grave felonies punishable by
correctional penalties not exceeding 6 years imprisonment,
where the offended party is a private person;
6. The civil aspect of estafa, theft and libel;
7. All civil cases and probate proceedings, testate and intestate,
brought on appeal from the exclusive and original jurisdiction
granted to the first level courts under Section 33, par. (1) of
the Judiciary Reorganization Act of 1980;
8. All cases of forcible entry and unlawful detainer brought on
appeal from the exclusive and original jurisdiction granted to
the first level courts under Section 33, par. (2) of the Judiciary
Reorganization Act of 1980;
9. All civil cases involving title to or possession of real property
or an interest therein brought on appeal from the exclusive
and original jurisdiction granted to the first level courts under
Section 33, par.(3) of the Judiciary Reorganization Act of 1980;
13 and
10. All habeas corpus cases decided by the first level courts in
the absence of the Regional Trial Court judge, that are brought
up on appeal from the special jurisdiction granted to the first
 level courts under Section 35 of the Judiciary Reorganization
Act of 1980.

3.