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Crime is defined as an act that the law makes punishable and is often called an offense. It is an offense against the public, as compared to a tort, which is a wrongdoing against an individual and gives rise to an action for damages. Crimes produce two kinds of injuries: Social and Personal. Social injury pertains to the State and it is repaired through the imposition of penalty prescribed by law, and Personal injury pertains to the offended party and it is repaired by indemnification which is civil in nature. It is precisely because of these deleterious effects that the State is empowered to make penal laws and compel its people to follow them in order to maintain peace.
Crime has been in existence for a long time, although it was not called as such. In the Bible, Adam and Eve disobeyed the Lord by eating the fruit of the tree of knowledge despite an express prohibition to do so. Some may regard what they did as a crime, although against a different being. Biblical passages found in the first five books of the bible, collectively called Torah, have referred to the principle of "an eye for an eye" as basis of the imposition of penalty.
The earliest codified set of crimes or offenses with corresponding punishment was the Code of Ur-Nammu dating back in 2050 BC. It was written in the Sumerian language and contained a list of prohibited acts with their corresponding penalty if violated. The Code had provisions on dismissal based on corruption, protection of the poor, and significantly, a system of punishment wherein the punishment for the crime committed is fair. Its name, Ur-Nammu's Code, is actually a misnomer, because historians are of the opinion that his son, Shugli, is the actual author of the Code.
In 1700 BC the Babylonian King, Hammurabi developed a code of laws with the principle, lex talionis (which literally means the law of retaliation), which was called the Hammurabi's Code. This principle enshrined in ancient law, simply means that the offended party may return the same offending action to the origin of such act. For instance a person from one tribe kills a member of another tribe; the law allows the imposition of the same and equal penalty to the offending party, which means the offender shall be put to death. Lex talionis embodies the principle of exact retaliation. The penalty for the violation of the code was cruel, barbaric and inhumane. Theft was punished by cutting off a finger or the hand. The tongue was cut off if a person commits defamation. The judiciary is headed by a single person or a group of persons deciding on a case, not on merit or law, but on the basis of customs and tradition. In some cases, an accused was made to dive in the River Euphrates to find out if he is innocent or not. If the offender floats, it means he is innocent, therefore, he keeps his house and the accuser is put to death. However, if he drowns, it means that he is guilty and the accuser gets his house.
In Ancient Greece, the penal law is described as being "draconian," derived from Draco, the first Greek legislator. Laws were singled out as being merciless. Capital punishment or death was imposed for crimes, even for minor offenses. Ancient Rome had offered a more systematic system than Ancient Greece. However, the basis of penalty remained to be retribution and it was made incumbent upon the victim's family to serve such punishment.
A system of government was already in place before the Spaniard conquered the Philippines in 1565. It was called "barangay" which came from the Malay word "balangay" which in turn meant boat. Why it was named as such is not clear, however, some historians opine that:
"It may be inferred that the seafaring Filipinos, to give name to their nostalgic memories as they sailed in the high seas towards the Philippine archipelago, named their villages after boats which brought them safely across the seas until they reached the Philippine Islands."
The Datu was the head of the barangay. If the community was bigger, their leaders were called Rajahs. The Datu exercised Executive, Legislative and Judicial powers. Like today, both Oral and Written Laws existed. Historians had generally agreed, that the first codified set of laws in the Philippines is the Code of Kalantiyaw dating back from 1433, written by Datu Kalantiyaw. Instead of the word law, it consisted of the following orders:
"First Order. Ye shall not kill; neither shall ye do harm to the aged; lest ye incur the danger of death. All those who disobey shall be condemned to death by being drowned in the river or placed in boiling water.
Second Order: Ye shall obey; let all your debts with the chief be met punctually. He who does not obey shall receive for the first one hundred lashes. If the debt is large, he shall be condemned to thrust his hand in thrice into boiling water. For the second time, he shall be condemned to be beaten to death.
Third Order. Ye shall obey; let no one have women that are very young nor more than he can support; nor be given to excessive lust. He who shall not follow this order shall be condemned to swim for three hours for the first time, and for the second time, he shall be lacerated with thorns.
Fourth Order. Observe and obey; let no one disturb the quiet of the graves. When passing by the caves and trees where they are, give respect to them. He who does not observe this shall be killed by ants, or beaten to death with thorns.
Fifth Order. You shall obey; he who exchanges for food, let it be always done in accordance with his word. He who does not comply, shall be beaten for one hour, he who repeats the offense shall be exposed for one day among ants.
Sixth Order. You shall be obliged to revere sights that are held in respect, such as those of trees of recognized worth and other sights. He who fails to comply shall pay with one month's work in gold or in honey.
Seventh Order. These shall be put to death; he who kills trees of venerable appearance; who shoot arrows at night at old men and women; he who enters the houses of the headmen without permission; he who kills a shark or a streaked cayman.
Eighth Order. Slavery for aÂ doamÂ (a certain period of time) shall be suffered by those who steal away the women of the headmen; by him who keep ill-tempered dogs that bite the headmen; by him who burns the fields of another.
Ninth Order. All these shall be beaten for two days: who sing while traveling by night; kill the Manaul; tear the documents belonging to the headmen; are malicious liars; or who mock the dead.
Tenth Order. It is decreed an obligation; that every mother teach secretly to her daughters matters pertaining to lust and prepare them for womanhood; let not men be cruel nor punish their women when they catch them in the act of adultery. Whoever shall disobey shall be killed by being cut to pieces and thrown to the caymans.
Eleventh Order. These shall be burned: who by their strength or cunning have mocked at and escaped punishment or who have killed young boys; or try to steal away the women of the elders.
Twelfth Order. These shall be drowned: all who interfere with their superiors, or their owners or masters; all those who abuse themselves through their lust; those who destroy theirÂ anitosÂ (religious icons) by breaking them or throwing them down.
Thirteenth Order. All these shall be exposed to ants for half a day: who kill black cats during a new moon; or steal anything from the chiefs orÂ agorangs, however small the object may be.
Fourteenth Order. These shall be made slave for life: who have beautiful daughters and deny them to the sons of chiefs, and with bad faith hide them away.
Fifteenth Order. Concerning beliefs and traditions; these shall be beaten: who eat the diseased flesh of beasts which they hold in respect, or the herb which they consider good, who wound or kill the young of theManaul, or the white monkey.
Sixteenth Order. The fingers shall be cut-off: of all those who breakÂ anitosÂ of wood and clay in theirÂ alangans and temples; of those who destroy the daggers of theÂ catalonans(priest/priestess), or break the drinking jars of the latter.
Seventeenth Order. These shall be killed: who profane sites whereÂ anitosÂ are kept, and sites where are buried the sacred things of theirÂ diwatas and headmen. He who performs his necessities in those places shall be burned.
Eighteenth Order. Those who do not cause these rules to be obeyed: if they are headmen, they shall be put to death by being stoned and crushed; and if they areÂ agorangs they shall be placed in rivers to be eaten by sharks and caymans.
Despite Historians' belief that the Kalantiyaw was the first codified set of laws in the Philippines, in 1968, William Henry Scott, proved that it was a forgery actually made in the 20th Century. However, such fact notwithstanding, there is a consensus among them that the ancient penal laws were similar to what was allegedly written by Kalantiyaw, if not the same, cruel, inhumane and barbaric. Penalty was disproportionate to the crime committed. Disputes, whether criminal or civil, were settled either by the head of the barangay, the council of elders or through arbitration. The ancient principle of lex talionis, which had a very narrow definition of, "an eye for an eye," was very much alive in the early history of the Philippines, very much like in the other parts of the world at that time.
Being a colony of Spain for more than three hundred years, the laws of the Philippines are combination of common and civil laws, which were a product of the lengthy period within which the country was under the Spanish regime. Political and commercial laws follow a common law direction, and, civil and criminal laws, follow the civil law.
Although long before the Spaniards came, the Philippines had a judiciary, headed by the datu, it was the conquerors who gave as an organized system. The Royal Audencia was established to function as the Supreme Court during the Spanish Colonization of the Philippines, which had the power to settle controversies, and to check the abuses of the Governor General in the Philippines. On the side of the law, the Spanish Codigo Penal was extended to the Philippines by virtue of Royal Decree of 1870. This was eventually replaced with the Spanish Penal Code of 1848, by theÂ Comision Codificadora de las Provincias de Ultramar, which was put in place by Spanish authorities, and took effect in the Philippines in July 14, 1876. The Spanish Penal Code contained two important innovations, which our old penal system did not have: incarceration, as a form of punishment, and parole, as a form of reward for good behaviour while incarcerated.
Incarceration or imprisonment is the most relevant innovation that the Spanish colonizers introduced in our penal system. It was used to detain a person under suspicion of committing a crime, and to punish, incapacitate the offender, deter from committing an offense or rehabilitate him, upon conviction. Incarceration replaced the barbaric and inhumane penalties of olden times. The capital punishment, however, remained in the penal system, but was reserved for the most gruesome crimes, such as murder.
The Spanish Penal Code remained in effect during the American colonization of the Philippines. However, seeing the need for penal law change, authorities formed a Committee on Revision, the primary function of which was to revise the Penal Code put in place by the Spaniards. The 1927 Commission on Revision headed by Anacleto Diaz, Quintin PAredes, Guilermo Guevara, Alex Reyes and Mariano de Joya, as members. The Committee based the revised code on the Spanish Penal Code of 1848. On December 8, 1930, Act No. 3815 or the Revised Penal Code of the Philippines took effect; however, it did not undergo important change of orientation or structure. The Revised Penal Code remain in effect today, with substantially the same list of crimes and same fines, as the Spanish Penal Code of 1870.
Punishment is an allowed and a desired form of social control, provided that it complies with the basic limitations provided for by municipal laws and relevant international laws. It is allowed to be imposed to preserve social order, which represents that state of peace and tranquillity, where "individuals and groups are in keeping with the overall scheme, lending predictability to social institutions." More, importantly punishment is imposed to achieve justice.
Ancient civilizations have based their concept of justice, primarily, on vengeance, retribution, and compensation. Punishment must be equal to the offense committed, such that if a person kills another, he shall be put to death as punishment for his crime.
Punishment is imposed for various reasons, such as: to avenge the wrong doing against the offender, to instil fear in penalty if an offense is committed, to incapacitate the offender by keeping him detained so that he will not do any more crimes and, lastly, to reform the offender by individualizing his penalty which will, hopefully, lead to rehabilitation. These are the four philosophies of Punishment: Retribution, Deterrence, Incapacitation and Rehabilitation, respectively. In most parts of the world, retribution is the primary justification in imposing penalties. However, with the increasing respect for human dignity, restorative justice is gaining speed.
Following the Enlightenment period, the value of human dignity surfaced. Immanuel Kant had said that not everything must be determined by value, dignity he says is the "absolute
inner value." The rising importance and awareness of human dignity resulted in the reduction of severe punishment infliction and paved way for the more modern systems of punishment such as incarceration and payment of fines for most minor offenses.
The new millennium brought about divergent views on criminology. German philosopher Frederick NietzscheÂ in his book, The Birth of Tragedy,Â said, "Man's highest good must be bought with a crime and paid for by the flood of grief and suffering which the offended divinities visit upon the human race in its noble ambition."
Following the rise of criminology, many different views on punishment and its bases arose. In the 20th century, French philosopher and historian, Michel Foucault in his book,Â Discipline and Punish,Â made a study ofÂ criminalization or punishmentÂ as a coercive method of state control. He said that there are two types of punishment: Monarchical and Disciplinary. He said in his work that the purpose of penalty was an indefinite one, "the problematization of the criminal behind his crime, the concern with a punishment that is a correction, a therapy, a normalization, the division of the act of judgement between various authorities that are supposed to measure, assess, diagnose, cure, transform individuals." According to Focault, this more modern concept of penalty being a form of correction is one of the bases of penalty.
In modern times, punishment is said to be imposed for the purposes of: Retribution, Deterrence, Incapacitation and Rehabilitation.
Retribution has gone a long from its ancient and very narrow definition of "an eye for an eye." Such principle had since then evolved to mean, proportionality of the penalty to the gravity of the offense committed. The imposition of punishment is also seen as a deterrence in committing crimes. It is believed that by imposing a penalty for a wrongdoing, other people will not be committing crimes because of fear of having to suffer punishment. Incapacitation, on the other hand, means lessening the likelihood of the offender perpetrating an offense so you commit him in an institution. Lastly, rehabilitation is said to be one of the rationale behind the imposition of penalty. By rehabilitation it is meant that punishment must be used as an opportunity to make some positive change in the offender.
Amongst the four philosophies behind the imposition of punishment, retribution is the most common justification in the imposition of penalty. Majority of the countries in the world adhere, primarily, to retributive justice, such as the Philippines, wherein retributive justice is the norm. However, due to increasing concern for human dignity, restorative justice is gaining popularity. In fact the present Constitution recognizes the need to preserve human dignity, thus:
"Section 11.Â The State values the dignity of every human person
and guarantees full respect for human rights."
The Philippines has, likewise, adhered to such principle, imminent from its more recent legislation such as the Juvenile Justice and Welfare Act of 2006, which explicitly provided for restorative justice principle.
The imposition of punishment is brought about by the mandate in the constitution which provides:
"Section 5.Â The maintenance of peace and order, the protection of life, liberty, and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy."
In order to maintain peace and order within the territory, the State is empowered to make laws. However, such authority is not unbridled because the Constitution itself provides for a proscription on the imposition of cruel and unusual penalties, excessive fines and passing of an ex-post facto law. The same proscriptions are mirrored in the United Nations Universal Declaration on Human Rights, International Covenant on Civil and Political Rights, and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the Philippines adhere to.
Retributive justice vis-a-vis Restorative justice
Retributive justice has been the primary justification of imposing punishment in most countries. It pertains to the old adage "let the punishment fit the crime" made popular by Cesario Beccaria or to the more popular "an eye for an eye," the dominant principle during the ancient times. Retributive Justice deals with proportionality of the crime to the penalty to be imposed upon an offender.
Restorative Justice, on the other hand, deals with individualizing the penalty given to a wrongdoer, keeping in mind that something must be done for the offender in order to reform him and keep him from doing crimes and to effectively reintegrate him to society. Rehabilitation, reformation and reintegration are basic premises. The rising interest on Restorative justice is brought about by the increased valuation and respect for human dignity.
The fundamental premise in a retributive paradigm is that crimes are injuries against the state, while restorative justice emphasizes that crimes are more than offenses against the state, but primarily are violations against people and relationships. In the retributive model, a determination of blame and administration of blame is involved. On the other hand, in restorative justice, the interested parties, namely the offender, offended party and the community, action, reconciliation and reassurance.
In retributive system, determination about whether a crime was committed, who did it and how should he be punished are the basic questions. It focuses on the offender and the crime that was committed and the penalty that the state must impose. Similarly, restorative justice is concerned with accountability, albeit primarily to the offended party and the community, and not to the State.
Statement of the Problem
Between the Retributive justice principles and Restorative justice paradigm, which is better suited for the Philippines? What is more in keeping with the general welfare? Which between retributive and restorative justice effectively addresses the value of human dignity despite it being a punishment? Consequently, will the new paradigm work, if there is indeed a shift from retributive paradigm to restorative justice?
II. Objectives of the Study
The objective of this study is to re-examine the retributive justice theory as the primary justification of imposing penalty, in light of the constitutional obligation of the State in affording the utmost respect for human dignity and human rights.
Also, this study aims to determine, by comparing their values and principles, which between Retributive Justice and Restorative Justice is a better fit, as basis of imposing penalty, in light of the constitutional provisions as well as international instruments to which the Philippines is a signatory.
Lastly, to determine the effectivity of using Restorative Justice, as basis of penalty, by examining countries which have adapted its principles.
III. Significance of the Study
The re-examination of the philosophies of punishment embodied in our penal laws will determine whether the current legal framework complies with the changes in the relevant laws which it is dependent upon.
Upon the determination of compliance or non-compliance, necessary penal law reforms may be suggested to best conform to the changes.
IV. Scope and Limitations
The study will focus only on Retributive and Restorative Justice principles, concerning criminal matters only.
The study will focus on the 1987 Constitution, specifically the provisions on the duty of the state to maintain peace and order, respect human dignity and proscription on cruel and unusual penalties and excessive an only and several fines, applicable penal laws , such as: the Revised Penal Code, the Death Penalty Law, Indeterminate Sentence Law, Probation Law and Juvenile Justice and Welfare Act, respectively.
The study will make use of Supreme Court decisions, pronouncements which have touch upon Retributive and Restorative principles.
To better understand the development of Retributive and Restorative justice, the use of foreign materials, American jurisprudence and International laws shall be extensively used.
Non-legal books and other reference materials were utilized.
V. Methodology/Organization of Thesis
The proponent primarily used the library in the Ateneo Professional Schools, the Rizal Library in the Loyola Schools, as well as that of the Miguel de Benavides Library of the University of Santo Tomas in Manila. Materials from the Internet were also used, as well as Academic Papers, Journals and legislative documents or papers. Interview with a reputable authority in Criminal law was also conducted.
This thesis shall be organized by chapters.
The first chapter shall be the introductory chapter, which contains the background, objectives and significance of the study, the scope and limitations, and the methodology or the organization of the thesis. The background provides a brief discussion of the factual milieu of the study, which is done by providing a historical background and the current state of things. The objectives and significance will catalogue what the proponent seeks to achieve and what impact it will bring to the society. The limitations will set forth the constraints and applicability of the study.
The second chapter is fully devoted to the purpose, scope, limitations, and sources of Criminal Law in the Philippines. A discussion of crime, punishment and the Revised Penal Code was also done.
The third chapter contains an in depth discussion of the Retributive Justice Paradigm.
The fourth chapter contains an examination of the Restorative Justice Philosophy.
The fifth chapter contains the analysis of the author, after taking into consideration the relevant laws, international instruments and other material documents.
Finally, chapter six contains the author's conclusion and recommendation.
VI. Definition of Terms
As found in the study, the following shall mean:
a. Code: when used in a sentence shall pertain to the Revised Penal Code.
b. Crime: for the purposes of the discussion, crimes shall be used synonymously with felony or offense.
c. Felony: for the purposes of the discussion, felonies shall be used synonymously with offense or crime.
d. Law: when used in a sentence, it shall pertain to the Revised Penal Code.
e. Offense: for the purposes of the discussion, offenses shall be used synonymously with felony or crime.