INTER-OFFICE MEMORANDUM

TO: Atty. Arvin Antonio V. Ortiz

FROM: Bajan Group
SUBJECT: Lowering the Age of Criminal Responsibility
DATE: 12 March 2019

ISSUE

Whether or not lowering the age of criminal responsibility from 15 to 9

years old will strengthen the implementation of the juvenile justice system in
the Philippines

BRIEF ANSWER

No. The existing law on juvenile justice provides that the State shall
protect the best interest of the child through measures that will ensure the
observance of international standards of child protection. Instead of lowering
the age of criminal liability, the State should strengthen the juvenile justice
system and inculcate a morale to the growth and protection of the child.

FACTS

THE PHILIPPINES AS A JUVENILE JUSTICE ADVOCATE

1
As a signatory to the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (The Beijing Rules), the United Nations
Guidelines for the Prevention of Juvenile Delinquency (The Riyadh
Guidelines), the United Nations Rules for the Protection of Juveniles
Deprived of their Liberty and the most importantly the Convention on the
Rights of the Child, the Philippines guarantees the protection of the best
interests of the child in accordance with the standards provided for by these
international laws. In the Philippines, members of Congress had passed bills
intended to make laws more consistent with the Philippines’ advocacy on
juvenile justice. As much as the Philippines should be concerned with a
juvenile justice system in harmony with international policies, the dominant
goal is to achieve a standard national policy on CICL rather than an accurate
reproduction of an international model on CICL.R.A. No. 9344, one bill
passed into law, institutionalized the promotion of the well-being of child and
their families, involvement of parents and guardians, promotion of diversion,
avoiding deprivation of liberty and protecting the privacy rights of children.
R.A. No. 10630 further emphasized child-sensitive justice policies focused on
the best interest of the child. This principle has been first laid down in the
Doha Declaration.

Republic Act No. 9344 or the “Juvenile Justice and Welfare Act”
Republic Act No. 9344 or the “Juvenile Justice and Welfare Act”
defines the Juvenile Justice and Welfare System as a system dealing with

1
“Overview of Philippine Juvenile Justice System” by Jeza Mae Sarah C. Sanchez (Sanchez)
children at risk and children in conflict with the law, which provides child-
appropriate proceedings, including programs and services for prevention,
diversion, rehabilitation, reintegration and aftercare to ensure their normal
growth and development. Instead of using the word “juvenile”, Philippine
laws made use of the word “child”. As defined in R.A. No. 9344, “Child” is a
person under the age of eighteen (18) years. While “Child at Risk” refers to a
child who is vulnerable to and at the risk of committing criminal offenses
because of personal, family and social circumstances. Some of the examples
mentioned in the law are: being abandoned or neglected, and living in a
community with a high level of criminality or drug abuse. “Child in Conflict
with the Law” or CICL, on the other hand, refers to a child who is alleged as,
accused of, or adjudged as, having committed an offense under Philippine
laws. A child can commit an act or omission whether punishable under special
laws or the amended Revised Penal Code which is referred to as an “Offense”.

Under R.A. No. 10630, offenses which only apply to a child and not to
adults are called “Status Offenses”. These shall not be considered as offenses
and shall not be punished if committed by a child. Examples of status offenses
include curfew violations, truancy, parental disobedience and the like. Before
R.A. No. 9344 was enacted, children at risk and CICL were treated much like
adult offenders as when former President Ferdinand Marcos, Sr. signed into
law the Judiciary Reorganization Act 1980 which abolished the juvenile and
domestic relations courts. As such child offenders were subjected to the same
adversarial proceedings as their adult counterparts. As an offshoot of the
United Nations Convention on the Rights of the Child (UNCRC), the R.A.
No. 9344 intends to deal with these children without resorting to judicial
proceedings. Instead of punishing juvenile offenders and treating them as
criminals, these child offenders will be provided by the State and the
community with assistance to prevent them from committing future offenses.

THE PHILIPPINE JUVENILE JUSTICE SYSTEM

A. Diversion and Intervention Programs

2
The main features of R.A. No. 9344 are the diversion and intervention
programs. During the diversion process, the responsibility and treatment of
CICL will be determined on the basis of his/her social, cultural, economic,
psychological or educational background without resorting to formal court
proceedings. If the CICL is found to be responsible for an offense, he/she will
be required to undergo diversion programs without resorting to formal court
proceedings. During the intervention programs on the other hand, they will
undergo a series of activities to address issues that caused them to commit an
offense. These may take the form of counselling, skills training, and
education. The bigger the role these diversion and intervention programs play
in child behavior development, the more acceptance and social legitimacy
these programs are likely to enjoy in resolving problems with CICL.

B. Age of Criminal Responsibility and the Presumption of Minority

2 Sanchez, supra at 3
 3
R.A. No. 9344 likewise rises the age of criminal responsibility from
nine years of age under Presidential Decree 603 to a minimum of 15 years old.
CICLs aged 15 and above are also exempted from criminal liability unless the
prosecution proves that they acted with discernment — the capacity to
distinguish right from wrong. These child offenders are also afforded all the
rights of a CICL until he/she is proven to be eighteen (18) years old or older
under the “presumption of minority” rule. In all proceedings, law enforcement
officers, prosecutors, judges and other government officials concerned are
mandated to exert all efforts at determining the age of the CICL.

C. Restorative Justice

The concept of “restorative justice” as opposed to retributive justice

4

has also been introduced by R.A. No. 9344. It espouses resolving conflicts
with the maximum involvement of the victim, the offender and the
community. It primarily aims to achieve reparation for the victim,
reconciliation of the offender, the offended and the community, and
enhancement of public safety. It also ensures that the child’s rights will not be
infringed when he/she admits to the offense.

THE PHILIPPINE JUVENILE JUSTICE SYSTEM

5
In its effort to articulate the Juvenile Justice System in laws, rules and
guidelines, the method of its proponents have always been experimented
serving as a working hypothesis which is continually being retested in the
laboratories of youth detention homes. Throughout the history of its
implementation, R.A. No. 9344 and its progeny have been hailed as a medium
of hope for CICL. During such times, the Juvenile Justice System also faced
criticism and difficulty. As such, the Juvenile Justice System of the
Philippines is at odds with itself as to whether or not the present system
warrants reconsideration. Today, the Philippines should see this exigency.

DISCUSSION
If a child of tender age is wrongfully accused into a crime, such child
can no longer invoke his/her youthful innocence of being framed up by an
unlawful act he/she did not even commit.
A child in conflict with law who allegedly commits a crime enjoys the
presumption of minority until proven by factual evidence. However, if the
criminal responsibility is lowered to 9 years old, this will only affect poor
children whose parents cannot afford the finances and prove their innocence.
However, a child who has repeatedly committed crimes making
him/her a habitual delinquent and is not arrested nor punished by the law may
provoke the same knowing that he/she could not be “touched” due to his/her
age advantage. These acts from a minor made not only, our armed forces and

3 Ibid
4 Ibid
5 Sanchez, supra at 3
peace officer but also the government to look powerless from executing the
proportionate punishment to those who disturb and destroy the peace in
society. Hence, there is a need to strengthen the law that binds the justice and
welfare of the juvenile.
On the other hand, it is somehow contradictory that most of the
legislative body who approved the bill do not allow punishment to the minors
by reason of possible psychological abuse, and yet they allow 12 year old
minor to be legally enough to give its consent to participate in a sexual activity
which is by all means morally wrong. As what RA 8353 laid down in its
provision, 6 any sexual relation with ages below the given consent is referred
to as statutory rape. Therefore, sexual acts committed by a minor 12 to 18
years old are considered as with consent. 7Philippines do not have a close-in-
age exemption. Close in age exemptions, commonly known as “Romeo and
Juliet laws” in the United States, are put in place to prevent the execution of
individuals who engage in consensual activity when both participants are
significantly close to each other, or one or both partners are below the age of
consent. It is possible for two individuals both under the age of 12 who
willingly engage in intercourse to both be prosecuted for statutory rape.

The two cited jurisprudence are enough evidence that our country
allows immoral act to be a in lawful and legal form yet psychological damages
are considered as a crime for minors. It is hard to argue which one weights
more than the other since our society views both in a different perspective and
manner.

8
In the case of Jose vs. People (GR No. 162052, dated January 13,
2005), the appellant the convicted Alvin Jose Yamson filed a petition for
certiorari there through his counsel claimed that there was grave abuse of
discretion during the trial against him which led to his conviction charged with
violation of RA 6425. In his petition, he invokes Article 12 (3) of the Revised
Penal Code which exempts the offender to criminal liability base on the
grounds of minority. He invoked that he was 13 years old at the time of
the commission of the crime and therefore he is entitled to the Privilege
Mitigating Circumstance of Minority. The petition was granted by the
Supreme Court which resulted to the acquittal of Mr. Alvin Jose Yamson for
the grounds that the prosecution failed to prove the presence of discernment
on the act in which in order for the conspiracy to take place one essential
requisite would be the discernment by both of the parties and for the lack of
evidence as well. This jurisprudence speaks of the immunity that entitles
the minor to be exempted in any criminal liability hence also subject for
abuse.

In the case of 9People v. Ortega, the petitioner is convicted in the crimes

of 3 instances of rape. The petitioner filed an appeal in the Court of Appeal
for reconsideration as the petitioner is a minor, with age 13 years old, at the

6 Chapter 3, Article 266 of the Anti Rape Law of 1997 (R.A. 8353)
7 Alvarez,phil. Star, August 18,2018 (Alvarez)
8
Jose vs. People (GR No. 162052, dated January 13, 2005)
9 Ortega, supra at 6
commission of the crime. The C.A. ruled that, “petitioner acted with
discernment as shown by his covert acts.”

On the final note of the Court, it states, “we take consolation in the
10

fact that a law intended to protect our children from the harshness of life and
to alleviate, if not cure, the ills of the growing number of CICL and children
at risk in our country, has been enacted by Congress. However, it has not
escaped us that major concerns have been raised on the effects of the law. It
is worth mentioning that in the Rationale for the Proposed Rule on Children
Charged under R.A. No. 9165, or the Comprehensive Dangerous Drugs Act
of 2002, it was found that:

“The passage of Republic Act No. 9344 or the Juvenile Justice and
11

Welfare Act of 2006 raising the age of criminal irresponsibility from 9 years
old to 15 years old has compounded the problem of employment of children
in the drug trade several times over. Law enforcement authorities, Barangay
Kagawads and the police, most particularly, complain that drug syndicates
have become more aggressive in using children 15 years old or below as
couriers or foot soldiers in the drug trade. They claim that Republic Act No.
9344 has rendered them ineffective in the faithful discharge of their duties in
that they are proscribed from taking into custody children 15 years old or
below who openly flaunt possession, use and delivery or distribution of illicit
drugs, simply because their age exempts them from criminal liability under
the new law.”

12
The Council for the Welfare of Children (CWC) reported that more
than 52,000 Filipino children from 1995 to 2000 were “in conflict with the
law.” Data from social-welfare said that, from 2001 to 2010, close to 64,000
offenders were detained by the government, the highest being in Western
Visayas, the National Capital Region and Region 11, or the Davao region,
throughout the said period. The worst is that, current statistics show that not
all child crimes are petty and juvenile. Children are being jailed for crimes
like rape and murder, even insurgency.

During the year the New People’s Army [NPA] reportedly targeted
13

children for recruitment as combatants and non-combatants. The NPA

claimed it assigned persons 15 to 18 years of age to self-defence and non-
combatant duties, but there were reports that the NPA continued to use minors
in combat. Armed Forces of the Philippines [AFP] records showed 14 child
soldiers, allegedly recruited by the NPA, who voluntarily surrendered to
authorities during the year. The Abu Sayyaf Group [ASG] continued to recruit
teenagers to fight and participate in its activities.
This kind of criminal act is alarming, not only for the safety of our
family, but also for our country. As these minors are active in participating

10 Ibid
11 Ortega, supra at 6
12 Joel Pablo Salud, Children on the run: A closer look at child crime, businessmirror.com.ph, July

11, 2016 (Salud)

13 Ibid
such act, it would only mean that the future of our country is in the brick of
losing its lights towards a improved and brighter future. Since are aware of
the fact of criminal exemption, it would appear as if doing illegal act towards
the society and the government while they are still viewed as minor is still ok
and acceptable. But as time goes by, they have become would eventually
commit such unlawful act repeatedly making them neither innocent nor
unknowledgeable.

CONCLUSION
The juvenile justice system of the Philippines is becoming vulnerable
to malicious prosecution of the 9 year old children. The State should give a
chance to hone and strengthen the intervention program and provide the
children a strong support system that would promote their well-being.

United Nations, through the Committee on the Rights of the Child,

stated in a 2007 general comment, “Children’s rights in juvenile justice states
that ‘a minimum age of criminal responsibility below the age of 12 years is
considered by the Committee not to be internationally acceptable.’ Despite
many years of effort there is little consensus around this issue. So it is
alarming that this situation is rampant and neglected worldwide. In the
Philippines, as reported in The Manila Bulletin, the movement in the
legislature to lower the MACR from fifteen to twelve. The move has been
heavily criticized by the Juvenile Justice and Welfare Council, which oversees
implementation of a 2006 reform law that places the nation in the vanguard
of Asian progress on juvenile justice issues. The law, the first of its kind in
Asia, was explicitly passed to bring the country closer to its obligations as a
signatory of the United Nations Convention on the Rights of the Child and,
“pursuant to the provisions of the Philippine Constitution and Philippine
special laws protecting children,” supporters of the law contend that the effort
are a “knee jerk” reaction to a rising crime rate.