On the occasion of the Sixth Spanish-Filipino Scientific Congress University of the Philippines Diliman, Quezon City June 10, 2022 2:40-3:20PM
MODERNIZING CRIMINAL LAW BY UPDATING OUR APPROACH TO CRIMINAL BEHAVIOR: TAKING THE PATH OF TRANSFORMATIVE JUSTICE By: Leila M. de Lima Senator Good afternoon, everyone. Warm greetings from the PNP Custodial Center. I want to thank the organizers of this event for inviting me to be a part of the Sixth Spanish-Filipino Scientific Congress, specifically on the topic of Modernizing Criminal Law. I was hoping to be able to deliver this presentation in person or, at the very least, through a recorded video presentation. As a matter of fact, I filed a Motion before the two courts where the two remaining cases against me are pending, seeking permission to be able to record here at the PNP Custodial Center. Unfortunately, the courts denied the motion, saying that, given my ongoing detention and the subject matter, that is, the much1
needed reforms to our Criminal Law system, I might inevitably discuss matters related to my case that are sub judice. So, basically, someone who is personally experiencing, as we speak, the turning of the wheels of justice in our country, having been under detention for 1933 days, is apparently prohibited from sharing her views on how the Criminal Justice system could be made to work better. Why? Ironically, because she apparently knows the subject too well. If that doesn’t say everything that needs to be said about why efforts to update or modernize our criminal justice system have not come to fruition for so long, I don’t know what does. It seems that our society has a tendency to view us – those who, rightly or wrongly, find ourselves somehow caught on the wrong side of the criminal justice system – as having lost our fundamental rights as human beings and as Filipino citizens, even those who, like myself, have not even been found guilty of committing any crime and, thus, technically, constitutionally still enjoy the presumption of innocence. We are not just the accused. We are those that are supposed to go unseen, unheard and, ultimately, forgotten. Our Criminal Justice System, to quote Senator Grace Poe’s farewell speech for the outgoing senators, in relation to the end of my term as a Senator, “is broken”. No amount of censorship could change that fact. And it is a fact. Indubitable. Non-debatable. That is why we are here to talk about “how” it ought to be modernized, not “whether or not” it ought to be modernized. So, I want to thank the organizers for still giving me the chance to let myself be heard and prove that I know the difference between what is sub judice and what is not, and that I respect the Rule of Law enough not to violate it. So let me just outline what you will hear from me. You will hear from me that our Criminal Justice System is broken not just in the “how”, but also as to “why.” If it were a person, the Criminal Justice System is not only broken in body, it is broken in spirit. I would go so far as to say that it is lacking a soul. It moves, but never towards anything productive. It moves just for the sake of being able to say that it moves. A zombie in the legal world. So, while a major part of my presentation – culled from years of experience as a public servant – addresses the “what” and “how” of the question of modernizing our criminal law, all throughout, we must never lose sight of the question about “why” we have criminal laws in the first place. I ask this because, from my five years of experience as a detainee and an accused in a criminal case, I have had to wonder that, maybe, the real reason why none of these necessary and urgent reforms have been instituted is because, somehow, we see people who are accused, rightly or wrongly, as no longer fully 2
human and, therefore, are no longer worthy of full respect for their humanity and their rights. I have come to believe it is because there is a huge gap in our collective understanding of what is the very purpose, the raison d’etre, of a criminal justice system. Some believe it is solely to punish. The more progressive think it is supposed to rehabilitate. But, in practice, I sense that it is a way to sweep under the rug the unsightlier parts of our society, of which crimes are merely the symptom: Poverty; Mental health problems; Corruption and the unmitigated greed of those shielded by impunity bought by the very proceeds of their crimes; Some people’s pervasive need to be cruel towards others as a means of preserving or inflating their own sense of self-worth, or maintaining the economic, social and political status quo; and Plain and simple lack of sympathy or care for the welfare of others. Some even use the criminal justice system as a weapon to silence the voices that don’t echo their narrative, and to forcibly hide the Truths that they don’t want the larger society to know or realize. Since the accused are behind bars, and will be there for the foreseeable future, it allows those who benefit from the status quo to claim that there is nothing more to see, nothing more to do; and allows the rest of society to go on with their lives being blind to the decay occurring right before their eyes, and the concomitant moral obligation to halt and reverse it. If we are to truly solve the problems relating to modernizing our criminal law system, the real first step is to commit ourselves to see these real ills and want to resolve them. It is only when we truly commit to resolve them that we can commit to creating a criminal law philosophy that truly addresses these problems, and not just barely manages to sweep the unsightly symptoms under the rug. Therefore, while I wish to talk about the means and ways of modernizing criminal law that I have collected in my 14 years of public service, I also ask everyone to keep in mind the question: why do we have criminal laws in the first place? What purpose do we hope it will serve for society?
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Updating The Philippine Penal Code I came into my post as a first-time Senator nearly exactly six years ago with three decades’ worth of experience as a lawyer, a public servant, a human rights advocate, and a cabinet member and head of the premier law agency of the Philippine Government. In those capacities, I have stood as an advocate defending the interests of at least one party to a conflict, whether it’s an election law matter, a human rights matter, or a criminal justice matter. This perspective has led me, early on, to have a ready answer to the question on how to “modernize” Philippine Criminal Law today. In fact, as far back as 2010, I already had an answer to that. Early in my term as Secretary of Justice, and in direct response to the directive given by His Excellency, the late former President Benigno S. Aquino III, to “review existing laws to ensure consistency,” we in the Department of Justice created a “Criminal Code Committee” that spearheaded the updating of the then78-year-old Revised Penal Code of the Philippines (RPC), with support from the Hanns Seidel Foundation of Germany.
Inter-agency perspective From the beginning, we understood very well that any attempt to update the Penal Code is not, and should not be seen as, the sole responsibility of any one branch of government. Thus, the Criminal Code Committee (CCC), as constituted primarily through DOJ Department Circular No. 19, s. 2011, was composed of members from the legislative, executive and judicial branches of government, as well as the academe and civil society [, namely: 1. Senate 2. House of Representatives 3. Supreme Court – Office of the Court Administrator 4. Philippine Judicial Academy 5. Philippine Judges Association 6. Integrated Bar of the Philippines 7. Philippine Bar Association 8. Philippine National Police 9. Chief Prosecutors Association 10. Regional Prosecutors Council 11. Philippine Association of Law Schools 12. Transparency International 13. National Bureau of Investigation 14. Bureau of Immigration 15. Board of Pardons and Parole 4
16. 17. 18. 19. 20. 21. 22.
Bureau of Corrections Parole and Probation Administration Land Registration Administration Public Attorney’s Office Office of the Solicitor General Office of the Government Corporate Counsel Presidential Commission on Good Government]
Approach The approach taken by the CCC was one: Of inclusiveness and consultation; Of systemic perspective, yet “Tabula rasa” approach that is not constrained by existing frameworks, and is open to adopting innovative solutions; Of multi-disciplinary and not narrowly legalistic or technical approach, which addresses the issues from the point of view of all stakeholders of the criminal justice system – o By engaging and tapping experts and practitioners in the field – the operatives, the law enforcers, the prosecutors, the judges, the corrections officers, the civil society organizations, and business and media groups, o Through regular meetings, consultations with stakeholders from various sectors, in-depth research and international exchanges, and o With guidance from the best practices in the world.
Issues identified At the outset, several issues were identified: Foremost is the issue of accessibility of the language for lay people. We noted that, for a body of law that not only touches many aspects of the everyday lives of ordinary people, but also imposes the harshest of consequences that affects many people’s lives, it uses language that is technical, archaic and foreign to ordinary Filipinos. Along those same lines, the fact that the amendments are piecemeal makes the entire body of penal laws unsystematic and inconclusive.
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At the time we embarked on codifying a new penal code, the RPC, which came into effect on January 1, 1932, had already been “antiquated”. Moreso now that it has celebrated its 90th anniversary, especially considering how different life is now from Philippine society in the 1930s. There are still provisions that define and penalize dueling and vagrancy, both of which should have long been phased out for different reasons; and, yet, there are only piecemeal special laws that deal with transnational crimes, organized crimes, and other crimes that did not exist or were not of special interest to Filipinos 90 years ago, such as transnational drug trafficking, human trafficking, online child exploitation, and other modern crimes.
All the foregoing issues make our penal laws particularly unjust towards most Filipinos, especially the poor. Given the oft-repeated latin maxims “Dura lex, sed lex” and “ignorantia juris non excusat”, our penal laws function more as instruments of oppression against the poor, and less as effective instruments of social protection. Therefore, the intent of the CCC was to review all existing penal laws and, thereafter, draft one that is simple, modern, organic and responsive to the current needs of modern society, all towards the end of institutionalizing a truly inclusive criminal justice system.
Output Draft Book 1 was completed in October 2012, having the following key features: 1. Change to universal jurisdiction of crimes instead of the current jurisdiction based on territory, given the evolving nature of crime, specifically transnational organized crime: There will be provisions allowing the State to prosecute crimes committed outside the Philippines if the said crimes are against national security, against Filipino citizens, or against humanity and the law of nations. 2. It simplifies the approach to criminalization based on conduct and not mental state; 3. It simplifies the categorization of crimes, such that there is no longer a frustrated stage of commission of crime or accomplices in the degree of participation: There will be provisions classifying criminal participants as either “principals” or “accessories” (no more “accomplices” because they 6
can be prosecuted as principals based on the extent of their participation in the crime) and defining the stages of criminal execution as “consummated” and “attempted” (no more “frustrated”). 4. There is no longer a splitting of criminal and civil actions; the civil remedy is always embedded in the criminal action; 5. The scale of principal, alternative and accessory penalties with the restorative justice measures are presented in one table with numeral levels rather than old Spanish or Latin terms for easy reference: There will be a new scale of penalties composed of five “levels”, and a level for “life imprisonment”, aimed at simplifying the sentencing process. Using this new scale, crimes can be classified easily according to their gravity, along with the corresponding altnerative/accessory penalties and post-sentencing measures applicable to each level.
6. The rule on double jeopardy has been rationalized to prevent abuses: There will be a provision stating that an appeal from a judgment of dismissal or acquittal shall not be treated as a second jeopardy 7. Modifying circumstances are now generically aggravating, mitigating or alternative without need of specific characterization for purpose of trial: There will be sections defining modifying circumstances in broad strokes (unlike in the present Revised Penal Code where each circumstance is enumerated) in order to give the judge more leeway in appreciating factors that would aggravate or mitigate a crime on a case-to-case basis. 8. The prescription of crime and service of sentence is now combined.
It was one of the foremost priority legislative agenda of the Department to be endorsed to the Senate and House of Representatives, and it was eventually filed on 13 August 2013 as House Bill 2300 in the House of Representatives during the Sixteenth Congress by Congressman Niel C. Tupas, Jr. In fact, it progressed smoothly at the time, with the first public hearing in the HOR being conducted within seven (7) weeks of its filing. Thus, when I became a Senator, especially in light of the fact that I was initially given chairmanship of the Senate Committee on Justice and Human Rights, I had very, very high hopes that the foundation that we had laid down 5 years prior would evolve and come into fruition within the next six years. 7
To my mind, how could these efforts fail? There was no question that the codification of a new criminal code is not only an imperative, but also something that is not seriously contested by anyone, regardless of political affiliation. This was my whole perspective going in. Therefore, when I filed Senate Bill No. 1227, which is basically the same draft, I fully expected that my successor as Chairman of the Committee on Justice and Human Rights would have given it due consideration. Unfortunately, we are both at the end of our terms as Senator, and the bill is as far away from becoming a law as it was when it was first filed almost nine years ago. And the 90-year-old RPC, with its antiquated principles, provisions and language, with its piecemeal amendments and the confusing pile of special laws, still the prevailing body of criminal law in our jurisdiction.
A. Other legislative initiatives My experience as Secretary of justice gave me a front row perspective on what I thought, at the time, needed to be done to modernize the whole criminal justice system. Primarily, I saw first-hand several issues: 1. How the National Prosecution Service, in the handling of preliminary investigation, classified as a “accomplishment” only such cases that resulted in an indictment. To my mind, that was problematic because even those cases that do not result in an indictment is itself an accomplishment if it means that persons against whom there are no sufficient credible evidence are not burdened with having to defend themselves before the courts against baseless charges; 2. Also, I felt that it was problematic that the cases that are dismissed at the preliminary investigation stage are terminated almost without any proactive action from the NPS, and without distinction between those instances where the NPS was certain that no crime had been committed, and those where it was clear that a crime had been committed, and it was a matter of gathering more evidence to bring the culprit to justice. While I understand that they are acting as officials determining the existence of probable cause, and a measure of independence is called for, ultimately, a total separation between the NPS and investigative bodies like the PNP and the NBI lowers the chances of success of conviction and, more importantly, the successful delivery of justice. Therefore, I felt that there had to be some mechanism by which the prosecutors – who have the duty of presenting evidence sufficient to obtain conviction before the courts – can guide and be aided by the investigative 8
and evidence-collecting agencies in the build-up of strong cases, and vice versa. 3. The over-congestion in our national penitentiaries likewise presented a whole gamut of issues: a. It makes it difficult for the state to have control over inmate discipline and rehabilitation. b. There are not enough reformative programs to ensure the reintegration of inmates into society. c. These, together, make our penitentiaries the opposite of correctional facilities; instead of rehabilitating offenders, many are further taken down the path of delinquency by being exposed to, and placed under the influence of, other criminal elements, further entrenching them in the criminal world even after their release.
Thus, my lineup of legislative measures included efforts to update each of the different pillars of the Criminal Justice System, beginning from the investigative stage all the way to corrections stage, including, but not limited to: 1. An Act Institutionalizing Prison Reform and Restorative Justice in the Philippine Correctional System (SBN 2130, 17th Congress; refiled as SBN 179, 18th Congress) 2. An Act Institutionalizing a Unified Corrections and Jail Management System, Integrating the National Prisons and Penal Farms, and the Provincial, Subprovincial, City, District and Municipal Jails, Establishing for the Purpose the National Commission on Corrections and Jail Management (SBN 1879, 17th Congress; refiled as SBN 181, 18th Congress) 3. An Act Institutionalizing a Criminal Investigation System (SBN 369, 17 th Congress; refiled as SBN 182, 18th Congress) 4. An Act Granting Hazard Pay to Justice Sector Officials (SBN 1347, 17 th Congress; refiled as SBN 624, 18th Congress); 5. An Act Amending Article 14 of the RPC to add, as Aggravating Circumstance, the Crime Having Been Committed Against Lawyers and Justice Sector Officials (SBN 1721, 17th Congress; refiled as SBN 780, 18th Congress) 6. An Act to Protect the Independence of our Justice Institutions (SBN 1346, 17th Congress; refiled as SBN 782, 18th Congress) 7. An Act Redefining the Mandate of the Public Attorney’s Office (PAO) (SBN 1345, 17th Congress; refiled as SBN 1306, 18th Congress) 9
8. An Act Instituting Detention Facilities and Prisons Reforms to Uphold and Protect The Right To Life And Human Dignity Of Mothers Deprived Of Liberty And Their Children, Providing For The Minimum Standards That Must Be Observed In Their Treatment (SBN 1926, 18th Congress) 9. An Act Providing for the Bill of Rights for Victims of Crimes (SBN 1503, 17th Congress) 10. An Act Providing for Rules on Plea Bargaining Agreement in Criminal Cases (SBN 1677, 17th Congress). 11. An Act Providing For Medical Parole To Qualified Persons Deprived Of Liberty (SBN 2084, 17th Congress; refiled as SBN 1146, 18th Congress)
Unfortunately, just like the New Criminal Code Bill, none of my initiatives were given the prioritization I strongly felt they deserved, especially given the socalled “War on Drugs”, which just worsened the odds for ordinary Filipinos who find themselves in conflict with the law. To say that I am utterly disappointed with the lack of progress in the efforts to modernize our criminal law system is to understate the sense of urgency that I believe the problem deserves to be treated with. This is not just a problem that affects those who directly come in conflict the law. It affects all of us. It fails us as a whole nation because a broken justice system does not merely mean a problem of failing to deliver justice in particular cases to the parties directly involved, but it means the creation of a wholly unjust system that: (1) jeopardizes peace and order in our society by failing to effectively deter criminal behavior; and (2) erodes the people’s faith in the whole justice system, paving the way towards anarchy.
B. Reflections after 5 years of detention As I have said, my situation since my unjust detention beginning on February 24, 2017, has provided both a cause and an opportunity for reflection about our criminal justice system. Up to this point, the whole debate has been between the philosophies of punitive or retributive justice, on one hand, and restorative justice, on the other. One is amplified by those calling for the return of the death penalty and even the attempts to lower the Age of Criminal Responsibility; while the other calls for the rehabilitation of offenders, which demands that they be seen as human beings capable of being “rehabilitated”. As Secretary of Justice for five (5) years, I have seen how attempts at rehabilitation can be successful for some, but not for others. Worse, there are 10
inmates who come into the system for relatively lesser crimes, but who, due to their exposure to other criminal elements that they may never have encountered outside the penitentiary, become even more entrenched into criminal affiliations and activities. This brought me to ask myself: are either of these two philosophies actually what a modern Philippine society needs? To recap the debate: 1 The retributive approach views “crimes” as violations of the policies laid down by the state. Resolving it involves looking at the incident, determining blame, and administering the consequences, that is, by asking the following series of questions: a. What rule has been broken? b. Who is to blame? c. What punishment do they deserve?
The Restorative Approach views crimes as a violation of people and relationships. It creates obligations to make things right. Resolution involves looking at the harm caused by the incident, that is, the harm to the person(s) who were victimized, harm to the instigator/aggressor(s), and harm to the larger community, and the goal is repairing the harm done, by asking the following series of questions: a. Who has been hurt and what are their needs? b. Who is obligated to address these needs? c. Who has a “stake” in this situation and what is the process to involve them in making things right and preventing future occurrences?
I have always held that the retributive approach alone would fail on three points: 1. Apart from occasionally having the effect of quenching the thirst for vengeance – which is in any case backwards-looking and not always true in all cases – it won’t make it right for the victim in a concrete, forward-looking and socially productive way.
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https://emu.edu/now/restorative-justice/2011/03/10/restorative-or-transformative-justice/
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2. Without attempts at correction or rehabilitation, it won’t make it right for the offender; and 3. It won’t make it right for society because it fails to get to the core of why crimes persist despite people knowing the harsh punishments their criminal actions may warrant. In other words, it does not explain why crimes, even heinous crimes, are still committed even in jurisdictions that impose the harshest of punishments. But then I also started thinking, if the current criminal justice system has allowed us to devolve into a situation where we even question the humanity of criminal offenders, then maybe we need more than just “restorative justice”, which presumes that the status quo ante is worth returning to. Even the word “rehabilitation” seems lacking, when maybe some offenders never had the chance in the first place to be adequately habilitated to become functioning and productive members of society. Maybe we need to address criminality with the “transformative justice” approach. We know about “transitional justice” in the context of human rights in emerging democracies, that is, as “an approach to systematic or massive violations of human rights that both provides redress to victims and creates or enhances opportunities for the transformation of the political systems, conflicts, and other conditions that may have been at the root of the abuses.”2 But what if that or something similar is also what our society needs now? “Transformational” or “transformative justice” that goes beyond attempting to look back and restore us to a point before the crime was committed, but forwardlooking towards what we want our society to become? Transformative justice views crimes as occurring “as a result, in part, of unhealthy relationships and social systems. It creates obligations to build new or better relationships. This must happen not only at an individual level, but at the level of social structures and institutional policies. Resolution involves changing wider social systems in ways that help to prevent the occurrence and reoccurrence of harmful incidents.”3 It does so by asking the following questions: a. What social circumstances promoted the harmful behavior? b. What structural similarities exist between this incident and others like it? c. What measures could prevent future occurrences? I think we can all agree, at the very least, that there are a multitude of reasons for why harmful behavior happens.
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https://www.un.org/peacebuilding/sites/www.un.org.peacebuilding/files/documents/26_02_2008_background_note.pdf https://emu.edu/now/restorative-justice/2011/03/10/restorative-or-transformative-justice/
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Conclusion It is sometimes hard to see the good in the bad. But my experience of being unjustly detained for the last 5 years has given me a perspective that is rare in history: that of an advocate and defender, turned victim, turned survivor, turned reformist. Being shown how the wheel of justice operates from all possible sides, I can say that we have to approach criminal laws from a more inquisitive and pro-active and productive perspective, that is, one that searches for the anatomy of crimes beyond looking at the Motive, the Instrumentality and the Opportunity of each particular incident. Instead, one that starts with one fundamental and, to my mind, gamechanging question: What kind of society do we want to live in? And, from there, asking what should be done to bring us closer to that aspirational society. I think the value of this conference is not just in providing answers, but giving us, participants, the opportunity to ask the right questions. Like, what if treating the ills that cause crimes are just as, if not more important, than treating the harms that crime cause? I think we all agree that we want to live in a safe, orderly and secure society. Maybe the answer is not to answer poverty with violence, or even violence with violence. What if creating a kinder environment is the key to creating a safer environment? What if treating each offense as the act of a person requiring a different, if not unique, response that addresses the cause of the criminal behavior has now become an imperative if we are to truly create a safe, secure and orderly society? I invite you all to ponder those questions with me and, with that, I take my leave and thank you all for listening to me.
Closing Note: The whole collection of Senator De Lima’s proposed Criminal Justice legislations - totaling 20 bills and 11 resolutions during the 18th Congress; and 24 bills and 9 resolutions during the 17th Congress on the topic of Criminal Justice alone – along with pdf copies of the full text of each, can be found and downloaded from her website: https://leiladelima.ph/criminal-justice/
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