Offenses and Their Impact
By Atty. Rita Linda V. Jimeno
My heart skipped some beats as I watched the news about how 10-year-old Amiel Alcantara died when he was run over by a van right in the campus where he studied. I did not know him or his family but the images I saw and the accounts of how the gruesome accident happened lingered in my mind for days. Some of us may identify with the pain his family must be going through but no one can describe with words how excruciating their trauma must be. The worst suffering a parent can ever go through can only be that of losing a child.
But I could not help wondering what the driver of the van that killed Amiel—a mother of another boy also studying in Ateneo—must be going through herself. Days after the accident, she issued a statement of apology to the family of Amiel. Her lawyer said she was just as devastated and has been crying since the occurrence of the fatal accident.
What occurred was a reckless imprudence resulting in homicide and physical injuries. There were two victims. Amiel died and another one, the nanny, suffered physical injuries. Under the Revised Penal Code of the Philippines, Ma. Theresa Torres, who was driving the van, may be penalized with imprisonment and may also be ordered to pay damages including compensatory, moral and exemplary damages. This is called a quasi-offense, one that is inherently wrong but lacks the element of intent to cause harm. What is being punished is one’s gross negligence that resulted in injury and damage to another.
But apart from the needless loss of life of one so young, there is something else that is just as tragic in this. While the offender, the driver of the van, may indeed go to jail should the court find her guilty of reckless imprudence, this will not guarantee the healing and restoration of peace in Amiel’s family. In fact, in practically all circumstances where a life is lost, the serving of a jail term by the offender does not make the victim’s family hurt less. Under our system of justice, Torres, too, for her part, will find it difficult to regain her faith in herself and be whole again.
A crime or an offense breaks not only the victims and their families but the offender and his or her family too. Even the community to which the victims and the offender belong is broken just as much because the relationships among them have changed.
And this is what’s sad with our system of justice. Its focus is to punish rather than to restore the victim and his family —as well as the offender—to their sense of well being and self-worth. The focus is the violation of the law of the state, not the suffering of the victim’s family and what can be done to assuage or mitigate their suffering. Hence, there is a virtual contest to produce witnesses and evidence. The victim’s family must prove that indeed the driver of the van must be punished with imprisonment and must be made to pay damages. The offender must produce evidence that she was not negligent but that what happened was a fortuitous event which she could not stop from happening. She thus claimed that her brakes failed. Both the victim’s family and the offender are thus taken away from the essence of real justice.
Real justice or restorative justice focuses on the crime or wrongdoing as acted against the individual and the community rather than the state. In restorative justice, the person who has harmed takes responsibility for his actions rather than taking shield in the defenses available under the law. The victim and his family on the other hand, take a central role by receiving an apology or mortification and reparation directly from the person who has caused them harm.
Restorative justice is a growing social movement to institutionalize peaceful approaches to harm. It engages those who are harmed and the wrongdoer in search of solutions that promote repair, reconciliation and the re-building of relationships. It seeks a balanced approach to the needs of the victims and the wrongdoer, as well as the community, through a process that preserves the dignity of all.
The principle of restorative justice is most relevant in reckless imprudence cases because there is no criminal intent on the part of the wrongdoer to cause harm. But because the law imposes criminal penalties against a reckless wrongdoer, he has to suffer it, without being given the real chance to make amends personally to the victim. Yet, this is the only process by which a wrongdoer can forgive himself and heal. On the other hand, even if the wrongdoer has no intent to cause harm, the victim and his family suffer nonetheless because a life is lost or a person is badly injured.
What happened to Amiel Alcantara should be an eye opener for our lawmakers. Our retributive system of justice calls for a review. Restorative justice does not mean doing away with sanctions and penalties. Rather, it calls for adding into the system a social justice process where the victims and the wrongdoers are given a chance to be restored to their dignity. Offenders should be given a chance to have a dialog with their victims so they can tell their story why the crime happened and how it has affected their lives. It will give the wrongdoer an opportunity to make things right with their victims through some form of compensation. Victims will have the chance, too, to express how their lives have been gravely affected and the suffering they have undergone. The dialog, which is best done in a mediation process, will help them forgive and find healing.
Restorative justice existed in the ancient days. It was practiced in our tribal systems before our nation was colonized by foreign powers. World history tells us that restorative justice processes date back thousands of years. Retributive justice began to replace this system following the Norman invasion of Britain in 1066 AD. William the Conqueror’s son, Henry I, issued laws detailing offenses against the “King’s peace”. By the end of the 11th century crime was no longer seen as injurious to persons but was seen rather as an offense against the state. (Source: Wikipedia on Restorative Justice)
Ours is a nation of laws. Yet certain crimes do not only violate the state’s laws. Some violate and injure a person’s dignity, peace and well-being too. Is it not only right that his restoration be the center of the criminal justice process?
Ms. Jimeno is the Managing Partner of Jimeno Cope & David Law Offices in Makati City, Philippines.
This article was originally published by the Manila Times and is reprinted here with the permission of the author.