A Paper on

INTEGRATING A CUSTOM-BASED RESTORATIVE JUSTICE FRAMEWORK

WITHIN THE

KATARUNGANG PAMBARANGAY

Submitted to
Professor Rose Marie M. King-Dominguez

In partial fulfillment of the requirements

in Law 115: Legal History.

Submitted by
George Mitchell Silva Guerrero
Juris Doctor candidate
2012-24635

University of the Philippines

College of Law

Introduction
Human relations has always been fraught with conflict. Since the dawn of man, people have
been fighting over survival, property, honor, power, injury, inheritance, land, women, principles, and
freedom. Indeed, history and myth are replete with examples of these. The Homeric Iliad speaks of epic
battles between the Danans and the Trojans over the abduction of the most beautiful woman in the
world.1 Cain and Abel, the Biblical siblings of Genesis, ended with bloodshed over envy from
Yahwehs favor towards the younger brother.2 The Roman consul, Gaius Julius Caesar, crossed the
Rubicon, contrary to the laws of the Republic, and established himself as the sole ruler of Rome.
Ottoman princes would strangle their brothers with silk scarves in order to secure their position as the
Sultan of Sultans. Christendom was incited by popes to crusade in order to reclaim the Holy Land from
Muslim hands. The French beheaded Louis XVI and Marie Antoinette to unfetter themselves from
monarchy and to live under equality, unity, and fraternity. Through wars of independence, the colonies
of the 19th and 20th centuries, the Philippines included, unshackled themselves from the yoke of
imperial rule.
Disputes and conflict, of course, are not always as grand. People have more mundane squabbles
everyday. Spouses argue. Neighbors complain to the barangay about loud merriment from drunks
singing on the karaoke machine. Cars bump into each other. For many of these misunderstandings,
discussion, apologies, and restitution are sufficient remedies for the fault done.
More serious of the mundane lot are crimes. Crimes are wrongs which are either evil in
themselves, mala in se, or which are proscribed by public policy, mala prohibita, that are penalized by
the state.3 Examples of crimes are malicious mischief, theft, arson, bribery, adultery, murder, and rape.
In order to do right by the victims, the state takes cognizance of these offenses and subject them to the
justice system.

Criminal Justice in General: Retributive and Restorative

Two major paradigms of justice exists in criminal law: retributive justice and restorative justice.

Homer & Robert Fitzgerald, THE ILIAD (1974).

Genesis 4:15, THE BIBLE, New International Version.

Lozano v. Martinez, G.R. No. 63419, December 18, 1986, 146 SCRA 323 (1986).
2

Retributive Justice sets out to give offenders their just deserts. Crimes are met with equal or
proportional suffering. It seeks to implement the natural desire of a person to lay blame on one who
wrongs him and vindicate the offense upon his person or property.4 Punishment is the logical
consequence of committing a crime against another person. Cahill notes that retributivism adopts a
backward-looking perspective focusing on the moral duty to punish past wrongdoing.5
In antiquity, this took on the form of lex talionis, or the principle of an eye for an eye. As its
simple formulation states, a criminal who blinds someone would have his eye excised from his head, a
murderer would be put to death, and someone who cuts the ear of an innocent would have his loped off.
In this crude version of retribution, the state merely arrogates unto itself what primordial man would
have done himself: avenging his scars by inflicting a wound. The significance of the punishment lies in
making the offender feel the brunt of the crime committed, leveling the positions of the victim and the
wrongdoer, and posing as a deterrence for recidivism.
As retributive systems developed, proportionality supplanted mere equivalence. Rather than
follow Gandhis adage that an eye for an eye leaves the whole world blind, legal systems developed
punishments in the form of corporal punishment and incarceration to make amends for wrongs.
Corporal punishment are inflictions of direct physical pain upon a wrongdoer. People by nature
are desirous of pleasure and averse to suffering. Physical pain creates an apparent link between an
offense done the consequence simply because there is no mistaking which caused which. If you steal,
you get caned; and if you commit witchcraft, you get whipped are straightforward relationships
between crime and punishment. Although it is no longer as common as it was in the past, certain
modern countries like Singapore and Saudi Arabia still use corporal punishment to punish felonies and
misdemeanors. Common forms of this penalty are caning and flogging.
Incarceration ostracizes a person from the rest of society by confining him in a limited space
away from family, friends, livelihood, and possessions. It limits his freedom of movement by fencing
him within the restricted areas of a penitentiary. The length of imprisonment is arguably a considerable
suffering for it leaves one unable to pursue his desires and aspirations for years or even decades.6
Deprivation of liberty, at its core, endeavors to deter future criminals by setting an example, prevent the

4 Alfredo

Tadiar, Philosophy of a Penal Code, 52 PHIL. L. J. 165, 173-174 (1977).

Michael Cahill, Retributive Justice in the Real World, 85 WASH. U. L. REV. 815, 818 (2007).

David Hayes, Penal Impact: Towards a More Intersubjective Measurement of Penal Severity. OXFORD J. LEG. STUD. 1, 14 (2016).
3

commission of future crimes by keeping offenders behind bars and away from the community, and give
time to the penitent to reflect upon the consequences of his fault.
More than the punishment, however, a major feature of Retributive Justice is that the state lies
at the heart of justice. Crimes are not committed against the victim alone, but on the entirety of society.
Crimes are defined, investigated, prosecuted, tried, and punished by the state. Tadiar propounds that in
so doing, the state takes the place of divine judgment (in the case of believers) and the instinct of men
to take revenge over injury to preserve social harmony and limit a cycle of destruction.7 The state uses
its broad coercive power to stigmatize and censure a person through imprisonment and other penalties
to deter, incapacitate, and reform.8
On the other hand is Restorative Justice. The focus of this approach is ownership of the
wrongdoing, reparation, and reformation. The Center for Justice and Reconciliation defines Restorative
Justice as a theory of justice that emphasizes repairing the harm caused or revealed by criminal
[behavior]. It is best accomplished through cooperative processes that include all stakeholders.9 As
opposed to a state-centered paradigm of the state imposing punishment upon a wrongdoer following
prosecution by state agents before its courts, Restorative Justice involves conferencing of the victim
with his supporters (e.g., family or witnesses) and the offender, likewise, with his supporters within a
community forum. During this conference, they present their side openly to establish a narrative of
facts. They then try to agree on a fair and reasonable means of redresse.g., restitution of something
stolen, joining a rehabilitation program, updating the victim of progress on reformation while in prison
in exchange for testifying for lenity, et cetera.10 Central to this process is the role of the victim,
acknowledgement of the wrongdoer of his offense, and resolution to right what was done wrong.11
The Restorative Justice process, however, is not as informal as it seems. Indeed, testimony and
presentation of evidence are relaxed. The flow of the proceedings is also less strict because it is
primarily driven by the parties rather than by the lawyers or the presiding officer. That being said, the
state still has a role in preventing wanton chaos. The state is present in this justice system through
7

Tadiar, op.cit., note 4.

Nicola Lacey & Hanna Pickard, From the Consulting Room to the Court Room? Taking the Clinical Model of Responsibility Without
Blame into the Legal Realm, 33 OXFORD J. LEG. STUD. 1, 9 (2013).
9Center

for Justice & Reconciliation, Restorative Justice Briefing Paper 1 (2005).

10

Yvon Dandurand & Curt Griffiths, UNITED NATIONS OFFICE ON DRUGS AND CRIME, Handbook on Restorative Justice Programmes 9
11 (2006).
11

op. cit., note 8, at 12

4

trained deputized agents from the community who act as facilitators in the conference. These
facilitators guide the parties toward achieving an amicable settlement, ensure procedural fairness, and
apprise the parties on their legal rights and obligations.12 They also oversee the execution of the final
decision and prevent future abuse through oversight.
Victim-led conferences raise the level of perceived fairness of the proceedings. Rather than
being swamped by legal vagaries and procedural minutiae, parties are able to thresh out their
grievances directly. The process can also be attuned to the local customs of the community. The United
Nations Office on Drugs and Crime, as well as the Center for Justice and Reconciliation, notes that in
developing countries and locale with indigenous cultural communities, restorative justice frameworks
have complemented traditional dispute resolution methods.13 Acknowledgement of the offense by the
criminal, as well as the attendant shame and guilt, coupled with mutually agreed means of reparation
helps reduce recidivism.14

Criminal Justice in the Philippines

In the Philippines, crimes are defined by the Revised Penal Code (RPC)15 and special penal
laws. According to the RPC, acts and omissions punishable by law are felonies.16 Such felonies
(delitos) are committed with deliberate intent (dolo) or by imprudence, negligence, lack of foresight, or
lack of skill (culpa).17 Special penal laws, on the other hand, have specific provisions outlining the
offenses which they prohibit and their corresponding penalties. Wrongs for which there are no penalties
in statute are not crimes.18
The RPC provides for a graduated system of punishment which assigns penalties according to
the severity of the offense. Such penalties are capital punishment, afflictive penalties, corrective
penalties, light penalties, and penalties common to the three classes prior.19 It covers a wide variety of
12

John Braithwaithe, Restorative Justice: Theories and Worries, 123rd International Senior Seminar Visiting Experts Papers: Resource
Material Series No. 63, at 4748 (2003).
13

op. cit. note 9, at 34 and note 10, at 6 and 10.

14

op. cit., note 12, at 4749.

15 Act.

No. 3815.

16

REV. PENAL CODE, art. 4.

17

id.

18

1 LUIS REYES, THE REVISED PENAL CODE: CRIMINAL LAW 36 (18th ed., 2012).

19

REV. PENAL CODE, art. 25.

5

subjects ranging from crimes against the state, against the person, against property, to crimes against
chastity.20
These features conform to what Ambion refers to as the Classical School of Penal Lawa
permutation of Retributive Justice. The Classical School, he says, are described by the following: an
offense exists only when it it punished by a law, criminal responsibility can only be established by
imputability, and penalties exacted on the offender must be proportional to the wrong done.21

The State and Criminal Litigation

The States primary appendages in the pursuit of justice are the prosecution service, the law
enforcement agencies, and the courts.
Crimes are investigated and prosecuted by the state through the National Prosecution Service
(NPS), an agency under the Department of Justice. Prosecutors on the national, regional, provincial,
and city levels appear as counsel for the state in the litigation of criminal offenses before the courts of
justice, conduct preliminary investigations, and monitor the development of criminal cases.22 They
work with law enforcement agencies like the Philippine National Police (PNP) and the National Bureau
of Investigation (NBI), which carry out security operations, arrests, and criminal deterrence, in the
pursuit of justice for victims of delicts.
The forum of redress people often rely on are the courts. The judicial system is a hierarchy
beginning with the first-level courts which serve municipalities (vid., the Metropolitan Trial Courts,
Municipal Trial Courts, Municipal Trial Courts in Cities, and Municipal Trial Circuit Courts), followed
by the Regional Trial Courts, then the Court of Appeals, and finally, the Supreme Court. Special courts
such as the Sandiganbayan (Anti-graft Court), the Court of Tax Appeals, and Shariah District and
Circuit Courts also serve the needs for legal remedies of the Filipinos.23 Cases originate, as a general
rule, with inferior trial courts and are successively elevated to higher tribunals on appeal. Trial courts

20

REV. PENAL CODE.

21

Bienvenido Ambion, Penal Code Revision: Vignettes, Vagaries, and Varieties, 54 PHIL. L. J. 137, 141 (1979).

22

Rep. Act. No. 10071, secs. 511.

23 Antonio

Santos, A Guide to Philippine Legal Information: An Introduction to Legal Bibliography, Legal History, Legal System, Legal
Philosophy, Legal Research, Legal Profession 2426 (2013)., Batas Blg. 129, chapter I, II, III, as amended by Exec. Order No. 33 s.
1986., Pres. Decree No. 1083, book 4, title I., Pres. Decree No. 1606, as amended by Rep. Act No. 7975 and Rep. Act No. 8249., and Rep.
Act No. 9282.
6

thresh out and ascertain facts while appellate courts review errors of law that may have been committed
or grave abuses of discretion by inferior bodies.

The Katarungang Pambarangay

In the late 1970s, Chief Justice Fred Ruiz Castro sensing the need to de-clog the dockets of the
courts, proposed an alternative avenue for dispute resolution.24 He envisioned the creation of
neighborhood committees that would settle disputes within the community. Like the sanggunian ng
matatanda in the barangays of old, the local committee would rely on the wisdom and social esteem
possessed by community elders to resolve community conflicts.
Acting on this suggestion, President Ferdinand Marcos created a commission in 1978 headed by
Chief Justice Castro to draft legislation . . . instituting a system of resolving disputes among family
and barangay members at the barangay level, without recourse to the courts.25 Justice Minister
Vicente Abad Santos, Defense Minister Juan Ponce Enrile, Local Government Minister Jose Roo,
Education Minister Juan Manuel, and Integrated Bar of the Philippines President Marcelo Fernan, and
U.P. Law Center Director Froilan Bacugan were appointed members. Following months of
deliberation by the commission and a technical working group created to assist it, Presidential Decree
No. 1508, otherwise known as Establishing a System of Amicably Settling Disputes at the Barangay
Level was issued by President Marcos.26
The Katarungang Pambarangay System is administered by a Lupong Tagapamayapa headed by
the Barangay Captain (or Chairman) and conciliation subcommittees, called the Pangkat ng
Tagapagkasundo. According to the Local Govenment Code, which amended Pres. Decree No. 1508,
the Lupon consists of 1020 people of integrity, impartiality, independence of mind, sense of fairness,
and reputation for probity. These persons are appointed to serve without salaries for three years. Part
of their functions is to supervise the several Pangkat and to discuss best practices and insights on how
to resolve conflict. From their ranks, the Pangkat is constituted. Three members of the Lupon, one
presiding as chairman, serve on the panel that conciliates local disputes. In order to perform their duties

24

Cecilio Pe & Alfredo Tadiar, Katarungang Pambarangay: Dynamics of Compulsory Conciliation (1979).

25

Pres. Decree No. 1293.

26

op. cit., note 24.

7

within the metes and bounds of the law, the legal officer of the local government unit and the public
prosecutor of the area are tasked to give them legal advice whenever necessary.27
In The Philippine Criminal Justice System, Feliciano, et. al. cited the following crucial aspects
of the Katarungang Pambarangay: settlement of disputes through mediation and arbitration in lieu of
litigation and adjudication, mandatory nature of the conciliation, the ban on lawyer participation in the
proceedings, the absence of costs or charges in order to file action, and the fact that the conciliators are
drawn from the community.28
The Local Government Code provides that the jurisdiction of the Lupon embraces all
disputescivil and criminalbetween people living within the same town or city subject to certain
limitations. The exceptions under the law are: (a) Where one party is the government, or any
subdivision or instrumentality thereof; (b) Where one party is a public officer or employee, and the
dispute relates to the performance of his official functions; (c) Offenses punishable by imprisonment
exceeding one (1) year or a fine exceeding Five thousand pesos (5,000.00); (d) Offenses where there
is no private offended party; (e) Where the dispute involves real properties located in different cities or
municipalities unless the parties thereto agree to submit their differences to amicable settlement by an
appropriate lupon; (f) Disputes involving parties who actually reside in barangays of different cities or
municipalities, except where such barangay units adjoin each other and the parties thereto agree to
submit their differences to amicable settlement by an appropriate lupon; (g) Such other classes of
disputes which the President may determine in the interest of justice or upon the recommendation of
the Secretary of Justice. The court in which non-criminal cases not falling within the authority of the
lupon under [the Local Government Code] are filed may, at any time before trial, motu proprio refer the
case to the lupon concerned for amicable settlement.29
The Decree, as amended by the Local Government Code and supplemented by Administrative
Circular No. 14-93 by the Supreme Court, requires that there be a certification from the Lupon that
attempts to conciliate were undertaken prior to filing of cases before the courts of justice.
Feliciano, et. al. (2000) notably found that the Katarungang Pambarangay has been able to
reduce the load handed forward to the courts, and that it is able to resolve 87.2% of conflicts subject to

27

LOCAL GOVT CODE, chapter VII and Eliza Yu, A Primer on Barangay Justice with ADR Law (2010).

28

Myrna Feliciano & Alberto Muyot, The Philippine Criminal Justice System 18 (2000).

29

id., sec. 408

8

its mediation and arbitration.30 According to Jose Ramon Albert, former secretary-general of the
National Statistics Coordination Board, successful settlements in 2011 amounted to 76.9% of disputes
as compared to the roughly 1% disposition rate across all trial courts of the country.31

Filipino Values and the Need for Justice

The Filipino need for justice, both in a cursory sense and in a legal sense, has roots in his deeply
held values and principles. Gracious acts demand reciprocity because of utang na loob. Regard for
ones fellowman during his time of plight is a given because of the concept of pakikipagkapwa. Slights
arising from work, comments impugning a mans honor, discourtesy towards his family, and
humiliation before the public are taken as serious offenses because of the Filipinos natural sense of
amor proprio. Genuine contrition or even feigned apologies, especially in the political sphere, merit the
expunging of guilt and sin as Filipinos are maawain. They readily dispense patawad.
Utang na loob, according to Hollnsteiner, is a repayment of obligation in a proper manner.32 It
is a peronal debt of gratitude that requires one to give due recompense, and in fact, exceed that in
quality. Pe-Pua, et al. citing Andres describe it as reciprocity arising from aid given by another. In such
a relationship, they note, the end to the obligation is not clearly demarcated and is ongoing until such
time there is an understanding that the debt of gratitude has been repaid.33 Means by which the utang is
settled may consist of monetary payment, performance of acts, giving in kind, or even a general
disposition of deference or gratitude to the one who helped him. This notion has been existent from
antiquity, being written about as early as the 17th century, and persists up to the modern age.34
The concept of pakikipagkapwa is a group-feeling akin to empathy toward people within a
defined in-group which Filipinos see as hindi-ibang-tao.35 Persons considered hindi-ibang-tao are
accorded a sense of solidarity, understanding, lenity, special consideration, and identity. Within this
category usually are the nuclear family (pamilya), clansmen (kamag-anak), neighbors (kapitbahay),
30

Feliciano & Muyot, supra.

31

Jose Albert, The Philippine Criminal Justice System: Do we have enough judges to act on filed cases?, available at http://
nap.psa.gov.ph/beyondthenumbers/2013/06132013_jrga_courts.asp#_ftn1
32

Mary Hollnsteiner, Reciprocity in the Lowland Philippines, 9-3 PHILIPPINE STUDIES 387413, 393 (1961).

33

Rogelia Pe-Pua & Elizabeth Protacio-Marcelino, Sikolohiyang Pilipino (Filipino Psychology): A legacy of Virgilio G. Enriquez, 3
ASIAN JOURNAL OF PSYCHOLOGY 4971, 55 (2000).
34

op. cit., note 32, at 394.

35

op. cit., note 33, at 56.

9

colleagues (katrabaho), and people from the same region, province, or town (kababayan). When a
neighbors mother dies, for example, it is customary to give abuloy or help in the preparations for the
wakea manifestation of a special type of empathic solidarity, pakikiramay. In certain places like
Tondo, an affront towards a person living on the same street would incite his neighbors to attack
(sugurin) the offender. In national elections, political candidates coming from a certain province enjoy
the support of his kababayan as in the case of the Ilocano Solid North. At the very least, a Filipino tries
to get along (pakikisama) with his fellowman so as to maintain harmonious intercourse.36
Amor proprio (literally, self-love), Saito, et al., state is confidence, pride, strength,
competence, and aptitude that one is a useful and necessary asset to the world. They further extend
this concept in referencing Carson-Arenas, by saying that Filipinos desire not merely to be seen as as a
cog in the the mechanistic grand design, but and individual of worth and substance.37 Mercado posits a
similar understanding of amor proprio in citing Guthrie that Filipino needs to be treated as a person,
not as an object.38
The fourth value, pagpapatawad, has both a personal and social dimension. In granting
forgiveness (patawad), the level of contrition of a person is crucial.39 Forgiveness is often given by
Filipinos to persons who candidly admit wrong and offer means to restore what was lost. Being a
predominantly Catholic population, the notions of reconciliation and penance weigh heavily on the
conscience of the Filipino people. On a community level, forgiveness is seen as a necessity in order to
maintain the harmonious relationship of people.40 As Filipino life, whether personal, professional, or
otherwise, is basically a web of who you know and how close your ties are, moving on from conflict
and disagreement is a sine qua non of living in society. Not being able to do so would be a severance of
relations not only with an individual but with his closelyknit network and sphere of influence.
These cultural values interplay with a sense of justice in many ways.
One, utang na loob reveals a deep sense of receiving and giving what is due. It is but just to
expect of others to conduct themselves in a way that gives value to contribution, and conversely, to
36

op. cit., note 33, at 56

37

Saito Isamu, Imamura Taiko, & Miyagi Mariko, Filipino Personality Traits and Values for Social Support: FOW as human resources
for work life balance in Japan, 8 (Japan) 116, 10 (2010).
38

Leonardo Mercado, Filipino Thought, 20-2 PHILIPPINE STUDIES 207272, 255 (1972).

39

Darwin Rungduin & Teresita Rungduin, The emergence of Filipino values among forgiveness studies, 4-2 INTERNATIONAL JOURNAL OF
RESEARCH STUDIES IN PSYCHOLOGY 1734., 27 (2013)
40

id.
10

expect reprobation when one fails. Good must be rewarded with a good of equal or greater value.
Disregard is a failure of empathy and duty. In both the positive and negative iterations of utang na loob,
making up for something is the clear commonality.
Two, empathy and regard as expressed in pakikipagkawpwa shows a social dimension of
expecting people to make up for grace accorded or wrongs done. Your immediate community is no
different from you. They are hindi-ibang-tao. Doing your part affords you the protection and care of the
community. It is seen as just to take care of your own and stand by them, regardless of the situation,
against injustice that may be rendered against you. Failing to give what is due, on the other hand, harms
you as an individual because you would be ostracized and be deemed unworthy of being a kapwaan
ibang tao. It undermines the solidarity of the community because of your lack of group regard. You
become excluded from the special consideration and lenience given to a person of good standing in the
social circle. And the people in the community will lose a sense of identification with you for being
contrary to the the communitarian norm.
Three, amor proprio demands that the redress of wrong be personal. Although a Filipino
belongs to a tight community with which he derives a sense of identity, he nonetheless values his
honor and person as an individual. Wrongs done against a Filipino must be settled directly. The
community and intermediaries vicariously take offense, but do not arrogate indignation unto itself. For
this reason, Filipinos would often refrain, Wag ka sakin mag-sorry. Sa kanya ka mag-sorry.
Four, forgiveness is a necessary part of justice. It is only right that one repairs the relationship
or at least take a non-hostile position when contrition is expressed and the debt is paid. Personally
apologizing with the proper rendering of service to make up for what was done wrong serves to ensure
that group solidarity and empathy are maintained.
Taken in the context of legal wrongs, the victim deserves as a matter of right to be given his
due. His person had been offended; therefore, direct restitution must be accorded to him. The wrong
was done against him and him alone. However, despite this, the community seeing the victim as one of
their own demands and will work towards vindicating their valued member. Though indirectly
involved, the immediate society sees itself as a stakeholder in the resolution of conflict because their
constituents are pitted against one another and its unity is impaired. On the other hand, the criminal has
an inherent obligation to render what is due the victim. He must genuinely own up to his fault and take
the necessary steps to pay back his transgression against the specific victim he wronged. Because he
11

violates the group-empathy and solidarity expected of him, he is excluded from the communitys graces
until he proves himself worthy of forgiveness.

The Problem of Attaining Perceivable Justice

The discussion in the paper so far has delved into the versions of justice which groups of people
may elect, the particular variant existent in the country today, as well as the values which guide the
Filipino notion of what is just. To briefly recapitulate, two major schools of thoughtretributive and
restorativeexist in the realm of conflict resolution, redress of wrongs, demand of rights, and
satisfaction of what is due. The current paradigm of justice which the Philippines uses is a statecentered, highly formal system which focuses on making a criminal suffer for having made others
suffer. However, the Filipino mindset of justice is premised on personal injury, arising from a failure to
give what is due, which the immediate society reprobates and moves to correct in order to arrive at an
amicable resolution.
The need to dispense justice is certainly unquestionable. The Philippine Statistics Authority
reports that over a million crimes were committed in 2013.41 Crimes against persons accounted for
457,944 of the total, crimes against property 212,123 of the whole, and non-index crimes (i.e., crimes
other than those committed against persons and property, including offenses against special penal laws)
510,378 of the same.42 This is a significant increase in reports as compared to the five-year period prior
which had them numbering as follows (in total reported crimes): 217,812 in 2012; 241,988 in 2011;
319,441 in 2010; 568,876 in 2009; and 66,846 in 2008.43 The PNP, in news reports, accounted for the
375% increase on a more faithful system of crime reporting.44
Taking the assertion of the PNP on its face, a significant rise in reported crime would perforce
imply an increase in criminal cases filed before the courts. This means that the already clogged dockets
of the judicial system are under further strain. The sheer number of cases pending before understaffed
courts would necessarily cause hold ups in the dispensation of justice. Senior Associate Justice Antonio

41

PHILIPPINE STATISTICS AUTHORITY, PHILIPPINE YEARBOOK: DEFENSE, CRIME, AND DELINQUENCY 9 (2013).

42

id.

43

id., NATIONAL STATISTICS OFFICE, THE PHILIPPINES IN FIGURES 22 (2011), and NATIONAL STATISTICS OFFICE, THE PHILIPPINES IN
FIGURES 22 (2012).
Crime reports go down in 1st half of 2014, THE PHILIPPINE DAILY INQUIRER, August 25, 2014, available at http://newsinfo.inquirer.net/
632527/crime-reports-go-down-in-1st-half-of-2014 and PNP reports surge in crime in 2014, RAPPLER, June 27, 2014, available at http://
www.rappler.com/nation/61798-pnp-crime-stats-2014
44

12

Carpio, in a speech before the Integrated Bar of the Philippines in 2012, noted that 21% of trials last
between two and five years while 13% exceed five years before coming to a close.45 Such delays may
undermine the credibility of the justice system in the eyes of the populace. As the adage goes, Justice
delayed is justice denied.
Beyond delays and volume of cases, Filipinos have also grown weary of alleged criminals
big- and small-time operators perceived by large swathes of people as corrupt, immoral, or
dangerousgoing scot-free. News reports constantly talk of drug lords maintaining running their
narcotics empire from within the state penitentiary.46 Government projects are halted by judicial fiat.47
Branded plunderers are released and allowed to resume public life.48 Petty criminals roam free.
Inability to feel that justice is being served undermines the rule of law and credibility of legal
recourses for vindication. Indeed, the rise in extra-judicial killings49 advocated by the Duterte
Administration and the ostensible support of the public for the same may be a gasp of frustration over
the slow turn of the wheels of justice and the seeming impotence of the judicial framework to deliver
justice.50
Given this, is the current legal framework capable of dispensing the justice which the Filipino
sensibility looks for? More precisely, is it best suited to deliver redress of wrong and restitution of what
is due that can be perceived as substantially just by the Filipino people?

Criminal Justice in Philippine History

In order to properly address the problem, a peer into the historical underpinnings of the
Philippine criminal justice system is in order. Theoretically, the development of the judicial framework

45 Antonio

Carpio, Judicial Reform in the Philippines (Central Luzon Regional Convention of the Integrated Bar of the Philippines, Clark
Field, Pampanga, June 29, 2012) 8-5 THE BAR TRIBUNE 10 (August, 2012).
46

Kristine Mangunay & Nancy Carvajal, Drug lords rule New Bilibid Prison, THE PHILIPPINE DAILY INQUIRER, December 16, 2014,
available at http://newsinfo.inquirer.net/657356/drug-lords-rule-new-bilibid-prison.
47

Christine Avedao, SC extends RH law TRO indefinitely, THE PHILIPPINE DAILY INQUIRER, July 17, 2013, available at http://
newsinfo.inquirer.net/445981/sc-extends-sqa-vs-rh-law and Mike Frialde, CA upholds ruling on TRO petition of Northrail, THE
PHILIPPINE STAR, December 15, 2008, available at http://www.philstar.com/headlines/423801/ca-upholds-ruling-tro-petition-northrail.
48

Edu Punay, Finally, GMA released, PHILIPPINE STAR, July 22, 2016, available at http://www.philstar.com/headlines/
2016/07/22/1605399/finally-gma-released.
49

Marc Cayabyab, CHR: Extrajudicial killings in Duterte war on drugs unprecedented, THE PHILIPPINE DAILY INQUIRER, August 24,
2016, available at http://newsinfo.inquirer.net/809292/chr-extrajudicial-killings-in-duterte-war-on-drugs-unprecedented
Oliver Holmes, Rodrigo Duterte vows to kill 3 million drug addicts and likens himself to Hitler, THE GUARDIAN, October 1, 2016,
available at https://www.theguardian.com/world/2016/sep/30/rodrigo-duterte-vows-to-kill-3-million-drug-addicts-and-likens-himself-tohitler
50

13

is driven by the evolution of cultural values and norms, responses to exigencies of the day, and
incorporation of effective practices culled from experience. This endeavor is no different.
Each epoch of the national narrative has salient features carried over from the past, a school of
thought with which the pursuit of justice is carried out, and its own innovations to meet the challenges
of that time. These are relevant features that are rich sources for a justice framework that can answer
the problem of today: delivering perceivable substantive justice for the Filipino people.

Pre-colonial Philippines
Social life in pre-Hispanic Philippines, be it in a religious, moral, cultural, political, or legal
context, revolved around the barangay. According to Robertson, the barangay consisted of family
headmen, their kith and kin, and other families with whom their share affinity.51 It was a socially
stratified body with nobility (maginoo), common-folk (maharlika and timawa), and slaves (alipin)
within its ranks.52 Standing above this pyramid was the datu, the village chieftain, who was responsible
for maintaining peace, defending the community, mediating disputes, and preserving their way of life.53
The 17th century friar Coln, as referenced by Robertson, observed that the legal system of the
native Filipinos consisted wholly of traditions and customs, observed with so great exactness that it
was not considered possible to break them under any circumstance.54 These somewhat codified
customs were enacted through law by the hari (paramount chief) of a confederation of barangays with
the assent of the lesser datus of the union. The umalohokan, the town crier, of every barangay would
apprise the population to promulgate the decreeakin to the modern practice of publication in the
Official Gazette or in newspapers of general publication. The hari serves as the highest judge with
general jurisdiction over the entire confederacy, while the datu of the local barangay sat in judgment
over the local conflicts of his subjects. Should the decision of the datu be appealed, an mediator-arbiter
is sent from another barangay that is part of the confederacy to mediate between the parties. The
decision of the mediator-arbiter is final and is not subject to appeal. Conflicts between datus from
within the confederacy are likewise decided by mediator-arbiters. In all cases, the datu or mediator51

James Robertson, Social structure of, and ideas of law among, early Philippine peoples; and a recently discovered pre-Hispanic
criminal code of the Philippine Islands (1917).
52

id. and Teodoro Agoncillo, History of the Filipino People (8th ed. 1990).

53

id.

54

op. cit., note 51, at 14

14

arbiter is given counsel by the sanggunian ng matatanda, a council consisting of the elders of the
barangay. They provide insight into the customs which have been made into law and experience from
past disputes which were settled.55
The process of conflict resolution began with the administration of an oathwhich took the
form of invoking the gods to strike them or have them be eaten by wild beasts if they prove to be guilty.
The parties then present their witnesses. Unlike modern trials where the quality of the testimony is the
controlling factor, quantity bears much more weight in ancient proceedings. In fact, if the witnesses of
the opposing parties are equal in number, the fine that would have been imposed on the guilty party
would be split among the litigantshalf of the total sum, going to the mediator-arbiter. This system of
adducing testimony is relevant only if the mediator fails to settle the issue informally between the rival
parties.56
Trial by ordeal may also be resorted to, as an option. In this scenario, the accused would be
given an opportunity to give recompense or return what he stole to avoid the trial he will face.57
According to Agoncillo, the onerous deeds that could be levied upon an accused could be anything
from holding his breath under water or placing his hand in boiling water.58 Trial by combat, in the form
of feigned wrestling, as related by Agabin also was an option of resolving disputes.59
The crimes that were punished within the society were directed towards persons and property of
members within the immediate community. Agabin, referencing Fernandez, indicated that the penal
regime of the ancient indigenes revolved around the values of personal security and property,
difference in rank of the accused and the victim, penalties in the form of fines, and personal
vindication of capital crimes.60 Offenses that were common to the era, according to Agabin, were
theft, murder, defamation, witchcraft, offenses against the datu and his family, and malicious
vandalism.61 As a general rule, Agabin noted, the death penalty was reserved for slaves who killed a

55

Robertson supra, note 54 at 15

56

id.

57

id.

58

op. cit., Agoncillo, note 52

59

Pacifico Agabin, Mestizo: The Story of the Philippine Legal System 36 (2011).

60

Pacifico Agabin, Mestizo: The Story of the Philippine Legal System 36 (2011), citing Perfecto Fernandez, Custom Law in Pre-conquest
Philippines 111 (1976).
61

id.
15

datu and for women convicted of witchcraft.62 Indeed, Robertson notes that the early people of the
Philippines were very reluctant to impose the death penalty.
It is important to note how the contemporary values of utang na loob, amor proprio,
pakikipagkapwa, and pagpapatawad are clear in the concept of justice of pre-Hispanic Filipinos.
Imposition of fines, as the preferred penalty for offenses, emanate from that basic expectation of giving
ones due. Emphasis on resolving the conflict personally, judgment based on quantity of persons
testifyinginstead of the quality of the narrative per seand the involvement of village elders
emphasizes the communitys involvement and investment in one of their own. It is worth noting that
number over substance matters heavily in testimony because of that sense of pakikipagkapwa. A
neighbor would perjure himself or outright lie to defend the honor of his kaibihan or kababayan versus
someone who is ibang-tao.63 Amor proprio is manifest in the fact that crime is committed against
individuals and settlement must be direct and with regard to the place of the victim in society. His
fellowmans indignation is because of co-identifying with the kababayan, who is a distinct individual,
not because of a social offense. Finally, the levying of capital punishment in only the most heinous of
crimeskilling the datu, by someone of severely lower human value, a slave and using the spirits
against a fellow manunderscores the value of the human individual to society, and the desire of
people to forgive and allow restitution.

Spanish Rule in Las Islas Filipinas

The justice system under Ynang Espaa was radically different. There was a formal judiciary
which was co-extant with the executive organs of state. According to Bankoff, the apex of the colonial
judicial system was theoretically, the Consejo de las Indias (Council of the Indies), and later the
Tribunal Supremo de Espaa e Indias (Supreme Tribunal of Spain and the Indies), in Spain, to which
cases may be appealed. However, for all intents and purposes, the highest court in the land was the Real
Audiencia (Royal Audience) which consisted of the Gobernador y Capitan General (governor-general)
as its president, a regente (regent, who served as chief justice in lieu of the governor-general), five
oidores (associate justices), and two fiscales (attorneys-general). The Real Audiencia heard appeals of
both criminal and civil cases. Within the alcadas (pacified provinces), the alcalde mayor (the

62 Agabin,
63

supra.

op. cit., note 51

16

provincial governor, who by law must be a lawyer) served concurrently as juez de primera instancia
(judge of first instance). Akin to the governor-general who delegated his function to the regente, the
alcalde mayor left the judicial function mainly to his indio clerk-interpreter, the directorcillo. The
lowest courts were in the pueblo (municipalities). The presiding judge over municipal courts were the
highestranking indio in the community, the gobernadorcillo (town mayor). More than just handling
small claims and petty disputes, the gobernadorcillo also presided over preliminary investigations and
submitted his findings to the alcalde mayor for judgment over crimes beyond his jurisdiction.64
Unlike the mediation-arbitration system employed by the indigenous natives, the Spaniards
employed an inquisitorial judicial system. Bankoff relates that judges sieved through the questions
submitted to him by counsel and exercised the prerogative of asking them, should he deem it
appropriate. By his own instance, he may summon witnesses to the stand and order that a line-up of
suspects be produced for identification by the witnesses. Convictions no longer hinged on the quantity
of testifiers, but on the facts and motives behind the actions. Circumstantial evidence, like in the courts
of today, may be appreciated to secure a finding of guilt.65
In the early stages of colonization, the conquistadores punished crime as they saw fit. Judicial
discretion and the application of corporal punishment, forced labor, and capital punishment were the
norm. However, as Spain began to establish civil government in the archipelago to replace the rule of
adventurer-conquerors, a system of graduated penalties as expressed in the Cdigo Penal (penal code)
took hold. Lex talionis gave way to specific punishments that were commensurate to the offense
committedcommensurate, at least in the Western perspective. In lieu of the more regressive means of
punishment, although such penalties were still available under certain circumstances, imprisonment and
deportation became the standard penalty levied. One form of punishment that was born in this period
was the infamous bartolina, a dark confinement chamber used for enhanced interrogations.66
Though clearly the system was retributive, the Spaniards were dabbling on a rudimentary form
of rehabilitation, according to Bankoff. The prevailing belief at the time was that labor and spiritual
nourishment within the penitentiary allowed offenders to redeem themselves to society and pay their
social debt. Governor-General San Pedro wrote, It is not the mission of government only to punish the

64

Greg Bankoff, Crime, Society, and the State in the Nineteenth-century Philippines 99106 (1996).

65

Bankoff, supra.

66

id.
17

delinquent; it is more essential to put him on the road by which he will not return to his old vices.
Towards this end of reform, hard labor, confession, and Sunday mass were made obligatory on
inmates.67
However, in reality, forced labor was a tool to kill a prisoners dignity and to heighten his
suffering. Convicts were chained, manacled, and fettered. The intensity of the work they had to do were
fixed by the discretion of the official, theoretically based on the severity of the prisonerss crimes.68
Prisoners, according to Bankoff, were treated like chattel. Upon imprisonment, he loses his
name. His identity for the duration of his sentence will be the number assigned to him. His head and
crotch would be shaved to demean him. Moreover, though legally prohibited unless with judicial fiat, a
prisoner would be subjected to regular beatingsin certain cases, inflicting over 300 strikes of the
cane, exposing bone from lacerated flesh. Searches conducted by wardens were unannounced. It was
also not uncommon for solitary confinement to exceed 20 days at a time. A prisoners meals could be
reduced to mere rice and waterto add to his ignominy.69
Executions were performed through hanging, firing squad, and garroting. During the hanging,
men would pull on the legs of the hanged convict after release, and should officials deem appropriate,
the body would be publicly mutilated. The execution, in following with the mores of the day, was a
civilreligious spectacle. The convict would be processed along with two prisonersnot unlike Christ
and his two companions to Golgothaand a coterie of clerics and soldiers. Priests would flank the
executioner and a crucifix would be positioned at the eye-level of the condemned. The man tasked to
execute the criminal was a man on death row himself. His performance of the role of executioner
allowed him to keep living This fact adds further degradation of both the condemned and the prisoner
who chooses to dehumanize himself to save his dear life by killing his kapwa.
During this three-century period, crimes committed rose with the populations increase. The
population of the ciudades (cities) were bolstered by countryside migrants seeking opportunity in the
economically thriving metropolitan centers. Unlike the rural areas, the cities were more heterogeneous
with people of drastically different socioeconomic stations sharing the same communityusing the

67

Bankoff, supra.

68

id.

69

id.
18

language of the values discussion above, filled with ibang-tao. Tensions rising from the stark
disparities both in property, race, and status were contributory to criminality.
A fifth of all offenses, Bankoff noted, were crimes against persons. Homicide constituted nine
out of ten delicts committed. Cultural factors largely played a part. The customary practices of
imbibing alcohol and toting bolos on ones person at all times coupled with a sense of honor that
needed immediate vindication (amor proprio) escalated squabbles into deadly affairs. Familial troubles,
confrontations between master and servant, and racial violence were also commonplace.
Consistent with traditional practice, indios did not put much security around his home. Fences
and similar fortifications or perimeter security were generally absent. This is because of the indigenous
value of seeing ones immediate community as hindi-ibang-tao. According to Bankoff, the indio
merely tied the door when he slept. A thief need only untie or cut the rope, and proceed to commit the
nefarious act.70
Farmers in the hinterlands also suffered theft of their crops (up to 1215%), trespassing, and
rustling of their livestock. Their approach to dealing with such crimes, however, were not focused on
giving the criminal his just deserts. The focus was getting the stolen property back. The victims,
following customs of old, would plac[e] a pile of leaves on the ground for the anonymous return of the
stolen articles overnight.71 Restitution rather than revenge because of that notion of pagpapatawad
was the operative tradition.
Honor and saving face, facets of amor proprio, were paramount in Philippine society.
Catholicism fetishized a womans virginity as sacred. Family was the cornerstone of social life; hence,
the reportage of crimes concerning morality were more sparse. Rape victims were exhorted to remain
silent so as not to bring taint upon herself or her kin, and families settled their squabbles amongst
themselves to spare the family from scandal. Prostitution and other crimes of morality (e.g., adultery,
concubinage, unchaste practices, seduction, etc.) were likewise dealt with at the community level of the
barrio or pueblo, akin to how they were resolved prior to the advent of the Iberian conqueror. This was
done to restrict the amount of information that had to be relayed to the Real Audiencia to limit the
disgrace that would fall upon the heads of the community.72

70

Bankoff, supra.

71

id.

72

id.
19

In the barrio, established rules encompassing all aspects of daily existence and social
intercourse73 guided his conduct as a natural extension of the practice in pre-Hispanic Philippines.
Personal agency was circumscribed within traditionally accepted standards to which he must abide or
face becoming a social pariahanother manifestation of pakikipagkapwa. Offenses committed in the
peripheries were largely petty crimes because of social cohesion and homogeneity. A hindi-ibang-tao
would be reluctant to commit heinous crimes on his kababayam. More serious infractions such as
banditry and smuggling were committed by strangers to the local community, or the ibang-tao.
But beyond the consistency of the Filipinos in holding on to their cultural values, it was clear
that the justice system of the Spaniards either inadvertently violated Filipino norms or specifically
attacked their basic principles. As mentioned above, Filipinos valued being seen as significant
individuals and not mere factotums in a greater scheme of things. Imprisonment with the erasure of
human dignity by losing ones name, being beaten with impunity, having meals docked, and being
constantly degraded obviously grated at a mans amor proprio. Forcing an indio to selfishly take the
life of a kapwa to save his life violates the basic ideal of pakikipagkapwa. That is a demeaning act for
an individual and a grave violation of his community obligation. It likewise takes advantage of a mans
utang na loob, because in sparing him from the noose, he incurs a debt to his colonial master. Imposing
capital punishment for social offenses, on the other hand, is clearly contradictory to the merciful
disposition of the indigenous native.
It is undeniable that the colonial justice system of the Spaniards is not just unmoored in Filipino
culturewhich explains the proliferation of informal native justice systems in the barrio levelbut is
contradictory to what is perceived by Filipinos as just.

The Philippine Islands under Pax Americana

Vice Governor-General Eugene Gilmore stated that three legal changes occurred with the
advent of the conquerors from the New World. They were: first, an automatic change resulting from the
change of colonial sovereigns; second, public laws issued by the United States Congress or that of the
local legislative power; and third, the creation of judicial precedent.74 Severing the umbilical cord with
Spain through the Treaty of Paris perforce repealed all Spanish law pertaining to the monarch and

73

Bankoff, supra.

74

Eugene Gilmore, Philippine JurisprudenceCommon Law or Civil Law?, 16-2 A.B.A. J. 89 (February, 1930).
20

subjects, the form and powers of government, and sovereignty. American law created by decree of
the Governor General, the Philippine Commission, or by the United States Congress itself naturally
took effect and superseded laws contrary to it. For example, General Order 58 s. 190075 issued by the
Military Governor repealed the Ley de Enjuiciamiento Criminal of 1888 and instituted a new Code of
Criminal Procedure, and General Order 68 (New Marriage Law)76 repealed portions of the Cdigo
Civil concerning matrimony.77 The Congress issued new laws to serve as the organic law of the land,
the Philippine Bill78 and the Philippine Autonomy Act79, as well as other laws to replace what Noble
deemed relics of monarchic rule.80 The Cdigo Penal enacted by the Spanish in the waning days of its
rule, however, was kept in force. Injection of judicial precedent became inevitable when the court ruled
that the Philippine Islands was no longer a bastion of Roman Law, but an eclectic mix of Civil and
Common Law traditions.81
These new laws put in place by the Americans reshaped the face of Philippine government. No
longer was the judiciary tied in with the executive-legislative powers, but it assumed a distinct place in
the governmental design. Judicial reform was a priority of the Americans. The Philippine Commission
promulgated Act No. 136 which organized the judiciary.82 The courts made therein were the Supreme
Court of the Philippine Islands, the Court of Appeals, the Courts of First Instance, Justices of the Peace,
and Municipal Courts.83 The highest judicial authority in Colonial Philippines was the Supreme Court
of the United States. Americans and Filipinos may serve on either of the Insular Courts; however, by
practice, three of the justices of the high court, including the chief magistrate, were Filipinos.
The penal system remained fundamentally the same because as noted earlier, the Americans did
not repeal the Cdigo Penal. President William McKinley specifically instructed that: The main body
of the laws which regulate the rights and obligations of the people should be maintained with as little

75

Gen. Order No. 58 (1900).

76

Gen. Order No. 68 (1899).

77

H. Lawrence Noble, Development of Law and Jurisprudence in the Philippines, 8-4 A.B.A. J. 226 (April, 1922).

78

32 Stat. 691, ch. 1369 (1902).

79

Pub. L. No. 240, 39 Stat. 545, ch. 416 (1916).

80

op. cit, note 77.

81

In re: Shoop, 19 O.G. 766 (1920).

82

Conchada v. Director of Prisons, G.R. No. 10292, March 31, 1915.

83 Act

No. 136 (1901).

21

interference as possible. Changes made should be mainly in procedure, and in the criminal laws to
secure speedy and impartial trials and, at the same time, effective administration, and respect for
individual rights.84 Following this directive, informations were filed against the accused instead of
being summarily tried by judges. They were also granted rights to refrain from testifying against
oneself, speedy trial, appeals, and cross-examination of witnesses. American rules of evidence likewise
supplanted the wide discretionary powers wielded by jurists under the Spanish Empire. Unlike the
Spanish judicial system, the courts were adversarial and not inquisitorial. Chief Justice Cayetano
Arellano said in describing the new system:
This law, based upon the accusatory system, has abolished the inquisitorial period
so derogatory to the rights of the accused, and which was the foundation of our
former criminal procedure; the time formerly taken up by this inquisitorial system
without the right of intervention on the part of the accused, which at times would be
prolonged for years, dependent upon the difficulty of investigation, has been saved;
the long period of preventive punishment suffered by the many persons during the
long summary examination is now avoided, which said examination was carried on
only for the purpose of investigating the commission of a crime and whether any
person was guilty thereof; the new procedure provides for complete equality between
the accuser and the accused, between the prosecution carried on by the Government
and the defense of his personal liberty and security interposed by the defendant; a
brief proceeding, which becomes and is public from its initiation, fully provides all
that is necessary for a complete defense, and is an absolute safeguard of personal
security; this, undoubtedly is the greatest benefit conferred upon the inhabitants of
this country.85
However, a major change the Americans instituted was the de-personalization the criminal
justice by making criminal actions prosecuted in the name of the United States, and not that of the
victims.86 Crimes were a menace to the state, its wellbeing, and its authority and must be punished in
its name.

84

George Pugh, Aspects of Administration of Justice in the Philippines, 26-1 LA. L. REV 1 (1965).

85

supra, note 84.

86

Gen. Order No. 58 (1900).

22

The RPC, in use until the present day was enacted under the aegis of the Americans. Through
the grant of self-rule in 1935 through the TydingsMcDuffie Act, which created the Philippine
Commonwealth, the familiar constitutional order was instituted in the Philippines.87 The 1935
Constitution entrenched a Bill of Rights that was theretofore only extended by judicial decision, not by
organic enactment. It, in imitation of the American government, provided for a tripartite system of
coequal legislative, executive, and judicial branches.88
As the law in force in the country was the Cdigo Penal and subsequently, the RPC, the system
of criminal justice was retributive. Punishment was meted in accordance with the severity of the crime
committed, as discussed above. Capital punishment was particularly a tool of repression of criminal
elementsparticularly of insurrectionists. Macario Sakay, a national hero, was famously executed by
the Americans during their attempts to pacify the Filipinos.89
Despite this, criminal correction in the penitentiary was reformative. According to Mallari, the
Americans took great initiative in giving prisoners education within the Bilibid Prisonthe main
penitentiary complex of the country, which was at the time, one of the largest in the world. Inmates
were subjected to a rigorous schedule of attending classes in either vocational trades or academic
learning. There were five departments within the correctional facility which catered to the inmates:
Department A was the machines repair and blacksmithing group; Department B was manufacture of
office and home furniture section; Department C handled construction; Department D constructed
bamboo and hemp furniture in the native fashion; Department F made clothes and sewn goods for all
prisons in the archipelago; Department G did the laundry; and Department H was the womens
auxiliary that handled embroidery.90

91

Upon leaving the Bilibid Prison, it was claimed that the

reformed penitents were able to secure jobs directly because of their new-found skills.
The Americans, Mallari notes, also employed the prisoner-teachers in the Bilibid to teach their
fellow inmates during day and night classes. They augmented the number of the inmate prisoners by

87

Teodoro Agoncillo, History of the Filipino People (8th ed. 1990).

88

CONST. (1935), arts. III, VI, VII, VIII.

89

U.S. v. Sakay, G.R. No. 3621 (1907).

90

Curiously, there was no Department E.

91 Aaron

Mallari, The Bilibid Prison as an American Colonial Project in the Philippines, 60 PHILIPPINE SOCIOLOGICAL REVIEW (2012)
165, 176177.
23

sending teachers from the Bureau of Education. Books were provided for their use. Many prisoners
who were illiterate learned to read because of the classes offered in the prison.
A degree of autonomy were afforded the inmates. According to Mallari, the Philippine
Commission created a prisoners court assisted by prisoner police. All the staff from the judge to the
counsels (defense and prosecution) and the sheriff were all drawn from the ranks of the prisoners.
They were allowed to self-regulate their prison communitya job once exercised by the assistant
director of corrections. The latter, however, still could review the penalties meted by the prisoners
court, which included docking meals and prison demerits.92
The health and wellbeing of the inmates, Mallari states, were maintained by the Americans
through the aid of the Bureau of Health. The Bureau replaced the bamboo beds of the prisoners with
metal ones which could be easily cleaned. A sewerage system was put in place in the penitentiary to
maintain a sanitary and healthful environment. Public health initiatives like encouraging participation
in sports activities were pushed by the prison officials. A prison hospital was also built to provide
adequate healthcare services to the prisoners.93
Like the Spaniards before them, they also engaged the services of clerics in order to fill the
moral and spiritual needs of the prisoners. They found this necessary in order to reform the consciences
of the criminals under their custody.94
The utopian appeal of the of the American penitentiary system, however, must be tempered with
their colonial designs. The primary goal of their humanitarian approach, of course, was to pacify the
natives and justify their imperialist presence.95 Scientific research was likewise being done on the
prisoners without their knowledge or consent.96 Moreover, the motive of the Americans were far from
noble, speaking with the benefit of retrospect, as it was driven by a racist social Darwinian motive.
Reviewing the American approach through the lens of Filipino values, it can be evidently
shown that it is far superior to the Spanish system it replaced. The Americans gave value to the amor
proprio of the Filipino in giving them autonomy to police each others conduct within the prison.
Personal agency and significance as an individual was affirmed by entrusting them functions which
92

Mallari, supra at 179.

93

id., at 178.

94

id., 181 citing Victorio.

95

id.

96

id.
24

would normally be deprived from them as prisoners. Indeed, as a general rule, these roles would have
been fulfilled by the wardens not the inmates. This self-policing concept gives regard to
pakikipagkapwa as well. Surely, living in close quarters with people for decades of a prison term
creates a sense of community. Community policing using norms established by the people within that
penitentiary allows the Filipinos to use their sense of solidarity and social expectations for selfbetterment. Allowing them to be educated both in an industrial-vocational sense and in an academic
mode touches on the utang na loob inherent in every Filipino. Being given a chance to make good of
what was wrong by genuinely taking the effort to change and improve oneself, makes a man indebted
to the society that gave him that chance. Reintegration into the society becomes possible because his
atonement will earn him the patawad of the community. Indeed, as noted by Mallari, these prisoners
were able to obtain gainful employment because they have successfully reformed themselves.
The pitfall of American justice lies on its de-personalization of the justice system. Rather than
mollifying the individual who was harmed, it arrogated unto the state the right of vindication. On first
blush, it would seem consistent with the communalistic nature of the Filipino; however, it is not so.
Offenses are done personally and taken personally. The state is too abstract for the satisfaction of
justice of the one harmed. Amor proprio has to be mollified by giving the victim his direct recompense.

A Justice Framework for Today

Having peered into the justice systems which have had taken root prior to the current regime in
our Republican government, three conclusions can be gleaned: Cultural values is necessary for
acceptance of the system, or what Agabin refers to as legal extensions and penetration97;
community involvement is the effective mode of engaging individuals; and, reform jives best with the
values of the Filipino.
Superficially, one could propose to simply return to the barangay system in pre-colonial
Philippines. Certainly, it is the system most moored on local values and custom. However, the
complexities of the modern judicial system could not be laid on the lap of lay individuals.
On the other hand, the current judicial framework has its dockets clogged and disposes its cases
at an invariable rate of 1% across the first- and second-level courts. Moreover, frustration over such
delays has been palpable. In fact, as noted above, people are actively supporting calls to subvert the

97

op. cit., note 59, at 4.

25

legal processes by taking the law into their own hands. Vigilantism, in the form of the Davao Death
Squad98 and the humiliation of alleged drug addicts by a Batangas mayor,99 are rife. Extrajudicial
killings, as noted previously, likewise abound.
A Solomonic solution, therefore, might be in order. At the present, there is a system which has
proven to be capable of alleviating judicial burden, yet dispense appreciable justice to the community.
This is the grassroots-justice system propounded by Chief Justice Castro, the Katarungang
Pambarangay. The solution is to hybridize it with formal elements of restorative justice so that it could
handle cases beyond the jurisdiction currently entrusted to it by law.

Integration of a Restorative Justice Framework

The Katarungang Pambarangay can be seen as an inchoate restorative justice system. It has
many of the necessary elements of an effective restorative justice forum, but lacks some of the formal
powers and post-sentencing authority that similar bodies possess.100 Incorporating these features that
could transform the nebulous system into a bona fide one, akin to the successful Family Group
Conferencing in New Zealand and Peace Making Councils in South Africa.101 Toward such end,
amendments to Chapter VII of the Local Government Code and the Prosecution Act of 2010 can be
introduced. In a similar fashion, the Supreme Court may be encouraged to modify the Rules of Court
and other judicial regulations. Such changes may include:
I.

Expanding the jurisdiction of the Lupong Tagapamayapa.

A. Increase the fine cap beyond 5,000 and term of imprisonment of one year
within its ambit;
B. Allow the Lupons to take cognizance of cases between non-adjoining barangays.

II. Granting fiscals prosecutorial discretion to subject complainants to conciliationarbitration; 102

98

The Davao Death Squad and Rodrigo Duterte, ABS-CBN NEWS, September 15, 2016, available at http://news.abs-cbn.com/news/
09/15/16/the-davao-death-squad-and-rodrigo-duterte.
99 Arnell

Ozaeta, 11 drug suspects take walk of shame in Batangas, THE PHILIPPINE STAR, May 24, 2016, available at http://
www.philstar.com/headlines/2016/05/24/1586381/11-drug-suspects-take-walk-shame-batangas.
100

op. cit., note 10.

101

op. cit., note 10, at 2122.

102

op. cit., note 10, at 72.

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III. Allowing judges to transfer an accused to a Lupon for rehabilitative sentencing after
a voluntary plea of guilt; 103
A. Such sentence determined through restorative justice procedures must be
confirmed by the same judge; 104
B. Remanded barangay proceedings shall fall under the supervision of the
court;105
IV. Involving members of the Bar or retired members of the Bench as Lupon members;
A. Encourage retired judges to participate;
B. Appoint lawyers to augment the ranks of Lupon members;
V. Providing guidelines on potential restorative sentences;
A. Early parole, or earlier eligibility to the same, provided there are regular updates
on reformation to the victim;
B. Community drug rehabilitation program;
C. Community service, especially for petty crimes and crimes committed by
minors;
D. Other reformatory acts;
E. Violation of the same shall make the offender liable to the courts.
VI. Opening the process to the involvement of legal counsel for graver offenses;
VII. Creating a mandatory training program within the Philippine Judicial Academy or
the Development Academy of the Philippines for lupon and pangkat mediatorarbitrators;
VIII. Requiring the codification of local customs by barangay ordinance;
A. Such codification will be done following consultations with the barangay
assembly;
B. Prior to approval, it shall be reviewed by the lawyer- and retired judge-members
of the Lupon.
IX. Providing funds for and converting barangay offices into restorative justice centers;

103

op. cit., note 10, at 72.

104

id.

105

id.
27

A. Provide staff, equipment, and facilities to barangay health centers in order to

host community drug rehabilitation centers;
B. Grant tanods wider policing capabilities, such as field administrative subpoena
powers;
C. Empower the Sangguniang Kabataan to become active agents in youth policing
and juvenile crime reduction;
X. Providing enforcement power to the already existing responsibility of the Lupon
Chairman to oversee whether the settlement is executed;
Conclusion
The Framework intends to build upon the existing, working Katarungang Pambarangay. Its
modifications are geared toward giving the Lupon teeth and giving it a more solid foundation. Such
would allow it to cover a wider array of crimes. However, it does not want to overly formalize the
workings of the Lupon and the Pangkat because the strength of the system lies in the semi-informal,
communitarian approach to dispute settlement. Pakikipagkapwa and recognition of amor propriothat
is, that every individual has a stake in his neighbor and that every person wants to be seen as a valuable
individualremains the heart of the system; ergo, it cannot be too de-personalized in its hybridization.
Part of the enlargement of the jurisdiction is also the option of prosecutors and judges to bring
matters before the Lupon. Amor proprio of Filipinos make them very litigious to the point that even
minor disputes are brought before the public prosecutor.106 Small slights may mean significant attacks
on honor that deserve satisfaction. Moving such relatively trifle matters to the conciliatory process
would allow the fiscals to focus on crimes of greater gravity, while at the same time, delivering a the
recompense which the offended party wants and deserves.
Involvement of members of the Bar, for example, would permit the Lupon and the Pangkat to
more fairly arbitrate complex matters because of lawyers knowledge of the law. Retired judges, on the
other hand, not only provide provide legal expertise but add gravitas to the proceedings. They would
fill a role akin to the sanggunian ng matatanda in olden times. This mix of expert ability and highesteem within the community is a potent tool in creating an environment which conveys the perception
of justice to those who seek it.

106

op. cit., note 28.

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Reformative sentencing options is crucial to this process because justice for heavier crimes
requires due recompense. As repeatedly stated earlier, Filipinos do not necessarily demand retribution
but require being given his due whenever offended. The criminal should be given an avenue to admit
his fault, correct his error, and make up for the wrong he did to the victim. The American justice system
discussed above is instructive here. Given avenues to reform, a Filipino wrongdoer will find it in
himself to answer his utang na loob for being given a second chance. He will pay his debt to his victim
and to society. In so doing, he becomes worthy of the peoples patawadthe very point of criminal
justice.
The Katarungang Pambarangay brings justice to the grassroots. With a restorative framework,
it delivers justice that is not merely close in proximity, but also to the values close to hearts and minds
of the Filipino people.

29