Toward restorative justice

The Supreme Court took a welcome step toward restorative justice last week when it approved the long-delayed guidelines that will pave the way for the replacement of prison time with community service as penalty for minor offenses.

Under the rules that operationalize the Community Service Act, signed into law by President Duterte in August last year, the courts may, starting Nov. 2 this year, impose community service instead of jail time for minor offenses such as disturbance of public order, alarms and scandals, and vagrancy that carry a penalty of arresto menor (a day to 30 days) to arresto mayor (one month and one day to a maximum of six months).

This is subject to conditions, such as the rendering of community service—defined as “an actual physical activity which inculcates civic consciousness, and is intended toward the improvement of a public work or promotion of a public service”—in the place where the crime was committed and under the supervision of a probation officer, that the offender must undergo counseling under the town or city’s social welfare and development office, and that the lighter sentence can be availed of only once.

In considering community service as penalty, the Supreme Court directed judges to consider carefully the gravity of the offense, the circumstances of the case, the welfare of society, and the reasonable probability that the accused will not violate the law while rendering the community service.

It may have taken more than a year for the Supreme Court to issue the guidelines, but the approval nevertheless remains a heartening development. Sen. Richard Gordon, who shepherded the Community Service Act, described it as a “game changer,” by allowing minor offenders to “do penance for the offenses they committed without worsening the congestion of our jails across the country.”

Indeed, the new guidelines could not have come at a better time, as the COVID-19 pandemic has increased the pressure on the courts to declog the country’s notoriously overcrowded prisons where it is impossible to follow the basic health protocol of physical distancing, making the overburdened detention facilities an ideal breeding ground for the contagious disease.

Earlier week, 46 inmates at the sub-provincial jail in Laoang, Northern Samar, tested positive for COVID-19, adding to the over 500 cases of COVID-19 reported among prisoners nationwide as of late May. There are fears that this number is grossly understated, as many cases may have gone unreported or been classified under other illnesses.

Human Rights Watch said in April that the combined population in prisons run by the Bureau of Corrections, where convicted people are incarcerated, and the jails run by the Bureau of Jail Management and Penology for those on trial or pre-trial, was 215,000 inmates as of November 2019. The combined maximum capacity is just 40,000, which means that as many as five people occupy the space meant for one person.

The Philippines has consequently earned the disreputable distinction of having the second most congested prison system in the world, with an occupancy level of 463.6 percent as of 2018, according to the World Prison Brief of the London-based Institute for Crime & Justice Policy Research, which collates information about prison systems globally. This puts the Philippines next only to the Republic of Congo at 616.9 percent.

The Duterte administration’s war on drugs has only contributed to the swell in the prison population—from 142,168 in 2016 to 188,278 in 2018, then to 215,000 in 2019.

The high court has said it is “very much aware” of the dire state of the country’s prisons and the specter of COVID-19. It has already released through the lower courts close to 60,000 inmates since the start of the public health crisis in March. Among those released were people sentenced to jail for a maximum of six months and qualified elderly and ailing prisoners, indicating that the justice system could summon urgency and compassion when needed.

Unfortunately, as in the case of baby River who died after having been forcibly wrenched from her detained mother’s arms per the cold, blunt order of a trial court (the Supreme Court also took its own sweet time remanding to the lower court the petition for release by River’s mother, Reina Mae Nasino), or in the stories of poor and powerless prisoners who, for minor crimes, have languished in jail for years without access to adequate counsel or a quick trial, notions of urgency and compassion have been in chronic short supply in the country’s so-called justice system.

The imposition of community service as penalty for minor criminal offenses is a long-overdue corrective that, as Chief Justice Diosdado Peralta put it, “promotes” those twin pressing objectives of “restorative justice and jail decongestion.”