Lowering the age of criminal responsibility is against child rights: UNICEF

The proposed lowering vary from 9 and 12 years, and goes against the letter and spirit
of child rights.

There is a lack of evidence and data that children are responsible for the increase in
crime rates committed in the Philippines. Lowering the age of criminal responsibility will
not deter adult offenders from abusing children to commit crimes.

UNICEF supports the Philippine government, as a signatory to the United Nations

Convention on the Rights of the Child (UNCRC), to ensure that children grow up in a
safe environment protected from crime and violence.

Sadly, lowering the age of criminal responsibility is an act of violence against children.
Children in conflict with the law are already victims of circumstance, mostly because of
poverty and exploitation by adult crime syndicates. Children who are exploited and
driven by adults to commit crimes need to be protected, not further penalized. Instead
they should be given a second chance to reform and to rehabilitate.

Scientific studies show that brain function reaches maturity only at around 16 years old,
affecting children’s reasoning and impulse control. Proposals to lower the age of
criminal responsibility argue that children as young as 9 years old are criminally mature
and are already capable of discernment. If this was the case, then why is the legal age
to enter marriage, legal contracts and employment in the Philippines at 18 years old? A
9-year old child has not yet even reached the age of puberty and their brains are not
developed to understand the consequences of actions.

The current proposal is to delay sentence up to a maximum age of 25 years. If a child is

jailed at 9 years old it means that they may have to waste away their life for 17 years
under imprisonment until they can get a sentence for the crime committed. There is no
mechanism to protect these children from cohabiting with hardened criminals and no
guarantee that in detention they will be protected from violence and exploitation in jail.

Detaining children will not teach them accountability for their actions. In order to
maximize their potential to contribute to nation-building, children must grow up in a
caring, nurturing and protective environment. This requires strong parenting support
programs and access to health, education and social services as well as to child-
sensitive justice and social welfare systems.

The current Juvenile Justice and Welfare Law, which sets the minimum age of criminal
responsibility at 15, already holds children in conflict with the law accountable for their
actions. It provides them with rehabilitation programs using the framework of restorative,
not punitive justice.

Noteworthy efforts from the judiciary and the executive agencies like the Juvenile
Justice and Welfare Council, Departments of Education and Social Welfare and
Development deserve full support of Congress, particularly on increasing life skills of
adolescent learners; establishing an evidence-based parenting program for babies all
the way through adolescence; and decreasing use of detention and increase use of
diversion and community-based mechanisms to address delinquency. UNICEF calls on
the government and civil society to focus on strengthening the implementation of this
law instead of amending it.

Branding children as criminals removes accountability from adults who are responsible
for safeguarding them. If children who have been exploited by criminal syndicates are
penalized instead of the adults who abused them, we fail to uphold the rights and well-
being of children.

If we fail to understand the underlying reasons how and why children commit crimes, we
as adults, fail our children.

Why experts strongly oppose lowering the age of criminal responsibility

(Sofia Tomacruz, Rappler, February 4, 2019)

AT A GLANCE

 Lawmakers push a proposal to lower the minimum age of responsibility (MACR)

from 15 to 12 years old despite the obligation to protect what is in the best
interest of children.
 Experts are strongly opposed to lowering the MACR because years of scientific
research and evidence show this will harm children.
 The juvenile justice system is already struggling to cope with children in conflict
with the law and rehabilitation facilities are sorely lacking.
  Lawmakers ignore this and are set to to approve the measure before Congress
adjourns on February 9, 2019.

MANILA, Philippines – Lawmakers in Congress are set on lowering the minimum age of
criminal responsibility (MACR) from 15 to 12 years old, a move that runs squarely
against the obligation to protect the welfare of children.

When the Philippines ratified the United Nations Convention on the Rights of the
Child (UN CRC) in 1990, it meant the country committed to place the best interests of
children as its primary concern when crafting policies that concern them. The UN
CRC is the most widely accepted human rights treaty in history, according to the United
Nations International Children's Emergency Fund (Unicef).

Despite this, lawmakers in the Senate and House of Representatives have pushed for
the hasty approval of a measure to lower the MACR, a pet measure of President
Rodrigo Duterte.

It’s a move that experts from several fields, including medicine, economics, human
rights, and education, have strongly opposed. Several groups have voiced grave
concern over doing so, saying it could expose more children to the gaps of the juvenile
justice system, which is already struggling to cope with children in conflict with the law
(CICL).

“Lowering the age of criminal responsibility is an act of violence against children.

Children who are exploited and driven by adults to commit crimes need to be protected,
not further penalized,” Unicef said. “They should be given a second chance to reform
and to rehabilitate.”

Armed with years spent treating and dealing with children, experts have said lowering
the MACR goes against science and evidence, which proves there are detrimental risks
CICLs face at every moment they come in contact with the juvenile justice system.

A review of position papers crafted by medical experts, economists, social workers, and
childrens’ rights group showed there were risks posed to children at 3 stages:

 Before a child may commit a crime.

 During a child’s stay in a youth detention center – known as Bahay Pag-Asa
(House of Hope) – or worse, a jail.
 After a child leaves a rehabilitation center or jail.

These risks, they said, outweigh the other supposed benefits of the proposed
measures.
Before a child may commit a crime, s/he is is already vulnerable

The first and foremost proof experts cite is backed by decades of scientific research:
children are still developing their decision-making capacity and therefore do not know
how to fully discern by themselves yet.

According to the Psychological Association of the Philippines (PAP), this means that
changes in areas of the brain, which are responsible for impulse control, decision-
making, regulating emotions, and evaluating risks and rewards are still taking place.
Unlike adults, children are less able to consider and understand the long-term
consequences of their actions.

“These abilities, which are involved in criminal behavior, do not fully form until young
adulthood, making young people especially vulnerable to engaging in risky behaviors,”
the PAP said.

This matters because it means that while children may know right from wrong, they are
unable to fully understand the consequences of their actions. Lawmakers, including
Senate justice committee chairperson Richard Gordon, have argued that children
should be held accountable for offenses precisely because they can distinguish right
from wrong.

“Discernment between right and wrong requires intellectual, emotional, and

psychological maturity. This is a tall order for children who are still in the process of
developing in all aspects,” the Philippine Pediatric Society (PPS) said. “Younger
children, therefore, need protection from the law and should not be held criminally
responsible for their actions.”

The Child Neurology Society, Philippines and Philippine Society for Developmental and
Behavorial Pediatrics share the position of the PAP and PPS as neuroscience research
has proven that the brain does not fully develop until the age of 25.

Because children are often unable to protect themselves, the state has the obligation to
protect them.

CICLs are at a disadvantage even before even committing a crime

Experts also stressed that many CICLs are disadvantaged before committing a crime
because they often come from poor, dysfunctional families. They are also vulnerable to
coercion.

According to the PAP, brain and moral development can be delayed by cultural and
social disadvantages such as poverty, exposure to crime and violence, abuse, and
neglect. These factors, which are beyond a child’s control, make it unfair to cast a child
as a criminal.

A situational analysis of CICLs completed by the Juvenile Justice and Welfare Council
(JJWC) said that a majority of offenses where children were involved – theft and
physical injury – were often related to poverty. The JJWC is tasked with overseeing the
implementation of the Juvenile Justice Welfare Act (JJWA).

The JJWC said CICLs were also often driven to commit crimes due to a failure to
resolve conflict among family members or to properly manage emotions.
(READ: Beyond juvenile delinquency: Why children break the law)

The PAP echoed this, saying it was “unreasonable” to hold a child exposed to an
“impoverished and brutal” environment criminally responsible for his or her actions.

“To hold a child criminally responsible for such is to put the entire community’s problems
on the child’s shoulders,” the group said.

About 73 alumni from the University of the Philippines School of Economics (UPSE)
backed this. They said efforts targeted at the youth were misplaced. Data from the
JJWC and Philippine National Police showed only 2% of crimes in the country were
committed by children.

“A sledgehammer is being used to crack a nut…[proposals] are fixated on an outlier in

the system, but one which adversely affects mostly the poor,” they said.

As young people, children are also vulnerable to coercion because they do not have full
control over their freedom and decisions. This is where adults and criminal gangs come
in.

While the JJWC and social workers have admitted there are syndicates using children
for crimes, they said the adults should be punished, not the children, who are mere
victims.

UPSE alumni also said lowering the MACR will not stop adults from using children to
commit crimes. A change in technique, they said, will merely been seen as a "change in
rule." Criminals will eventually “adapt and use a different strategy."

In a letter to Gordon, Marta Pais, UN Special Representative of the Secretary-General

on violence against children, warned that lowering the MACR would also put more
children at risk of violence.
Doing so, she said, would further compromise the “fight against impunity of those
responsible for exploiting children in the first place.”

Not enough rehabilitation centers to help children

The proof against lowering the MACR becomes even clearer when reviewing the
condition of majority of Bahay Pag-Asa centers.

While lawmakers claimed that lowering the MACR from 15 to 12 was intended to protect
children, they failed to listen to the JJWC itself.

The JJWC said the number rehabilitation houses was nowhere near the total 140 that
needed to be built. Nor was the JJWA fully implemented before posing amendments.
(READ: Children in conflict with the law: Cracks in Juvenile Justice Act)

The JJWA also mandates LGUs to build and maintain a Bahay Pag-Asa in their areas.
They should also appoint at least one social worker to assist CICLs. (READ: When
'Houses of Hope' fail children in conflict with the law)

Data from the Ateneo de Manila University Human Rights Center showed only 4% of
LGUs appointed licensed social workers. Meanwhile, only 53% of LGUs have allocated
1% of their internal revenue allotment to strengthen local councils to protect children.

In a Senate hearing, JJWC executive director Tricia Oco said there are only 63
rehabilitation centers nationwide – 55 LGU-operated, 5 non-operational, and 3 operated
by non-governmental organizations.

But even if existing, not all youth detention facilities are ready to take care of children.

According to Human Rights Watch, visits to a Bahay Pag-asa in Manila showed the
facility was poorly run and maintained.

"Water from the toilet leaked to the floors where dozens of children were sleeping, rust
covered fenced cages in which children were locked up throughout the day, ventilation
was poor, and many of the children had clear signs of skin infections, suggesting poor
diet and sanitation," the group said in a statement.

This lack of rehabilitation centers has led to many CICLs being detained in regular jails
and detention centers along with adults. While numbers have gone down through the
years, more than 800 children were still in jails as of September 2018 – despite
restrictions imposed by the JJWA.

For Pais, gaps in the rehabilitation of CICLs are too high a price to pay.
When jailed with adults, children in regular detention centers may be exposed to
criminal networks. This could lead to an increased risk of being used for criminal
activities at a phase when they are supposed to be rehabilitated.

“It compromises completion of formal education and opportunities to obtain vocation

skills; and, it exposes children to higher risk of stigma

stigmatization as criminals and to neglect and social exclusion,” Pais said.

Stigmatizing CICLs

Experts strongly oppose the proposal to lower the MACR because it limits prospects for
CICLs.

Even after being detained, the PAP said exposing a child to the criminal justice system
– or simply labeling a child a criminal – “will more likely establish the criminal identity of
the young person.”

Pais added that experiences from other countries coupled with research on criminilogy
have showed that introducing children to the juvenile justice system earlier on does not
deter crime.

“Lowering the age of criminal responsibility has the effect of bringing more children into
contact with the criminal justice system, increasing the rate of incarceration and
aggravating the risk of recidivism,” Pais said.

This is not to say that CICLs are not held accountable for their actions, as some
lawmakers have claimed.

JJWC policy and research officer Jackielou Bagadiong earlier denied that the current
law lets children get away with crimes they committed.

“The child still has this liability but we don't detain [him or her] because given the current
state of our jails, it wouldn't be possible, it would harm our future generation if we do
that,” Badiong said during the child protection summit in 2018.

“Our jails in the Philippine setting [are] what we can call school(s) of crime. If a child
enters jail, one can be assured that when he or she comes out, she will have had a
network of criminals that can assist him or her later on,” she added.

Ignoring evidence
The factors that make a case against lowering the MACR seem to have fallen on deaf
ears as a majority of lawmakers are still set on pushing a proposal at the expense of
children.

The House, after all, already approved its version of the controversial measure on third
and final reading last Monday, January 28. Meanwhile, Senate justice committee
chairperson Richard Gordon is set to sponsor the chamber's version of the measure on
Monday, February 4.

But while legislators have put much attention on the minimum age of criminal
responsibility, measures to care for children shift farther away from the best interests of
young people themselves. At the end of the day, lawmakers should be asked if they
have done their best to protect children.

Why lowering the minimum age of criminal responsibility is false compromise

Amnesty International, Global Youth Collective, February 26, 2019

The Philippine House of Representatives caused national and global outrage when in
early January 2019 it considered lowering the age of criminal responsibility to 9 years
old. The House resolved to “compromise” and changed it to 12 in a revised bill, which it
swiftly passed on 28th January 2019.

If the Philippine Senate discusses and approves a similar bill, the law could become
effective in June 2019.

Here are 5 reasons why a minimum age of criminal responsibility of 12 years old is
hardly an improvement from the proposed age of 9, and needs to be reconsidered at
the Senate:

1. It does not account for children’s evolving capacities

Because they differ in their physical and psychological development, children in conflict
with the law deserve to be treated differently compared to adults in the criminal justice
system. Setting the minimum age of criminal responsibility at too low an age is not
compatible with the evolving capacities of children.

Congress should enact measures that recognise both children’s abilities and
vulnerabilities.

2. It is damaging for a child’s development

Criminal punishments can harm children, damaging their future prospects at school or
at work. What’s more, the current conditions in the Philippine penal and corrective
system are already bleak: child corrective facilities and jails are some of the most
overcrowded in the world and some children are placed in jails with adults; neither are
the best environment within which to support children’s development and social
integration.

OPINION: Position Paper of the UP School of Economics Alumni on bills lowering the
minimum age of criminal responsibility
ABS-CBN News
Posted at Feb 01 2019 09:22 PM
We, alumni of the University of the Philippines School of Economics, express our grave
concern over House Bill No. 8858, otherwise known as “An Act Expanding the Scope of
the Reformation and Rehabilitation of Children in Conflict with the Law and
Strengthening the Social Reintegration Programs.”

We likewise voice our serious concern over the Senate counterpart bills that are similar
in content to House Bill 8858. These are Senate Bills 1603 and 2026.

We submit a position that is guided by reason, science and evidence. We also wish to
provide economic insights into this issue.
The most critical and controversial provision in House Bill 8858 (and this also applies to
the above-mentioned Senate bills) is the provision (HB Section 4) amending the current
law, by lowering the minimum age of responsibility of children in conflict with the law
from the current 15 years of age to 12 years of age. Further, HB Section 2 states that a
child 12 years of age and above but
below 18 years of age “who has acted with discernment…shall be subjected to the
appropriate intervention and diversion proceedings...”

Allow us then to enumerate and explain the reasons why we object to the lowering of
the minimum age of responsibility of “children in conflict with the law” (previously termed
minimum age of criminal responsibility) to 12 years old.

1. Discernment

House Bill 8858 subjects the child who “acts with discernment” to
“intervention and diversion proceedings.”

The standard dictionary definition of discernment is: “The act or process of exhibiting
keen insight and good judgment.” The capability to discern thus goes beyond having
access to full information and being rational.

Discernment requires intellectual, psychological, and emotional maturity, which is a

challenge to children and adolescents.

However, Section 22 of the existing law, which House Bill 8858 retains, is vague in its
definition and determination of discernment, except to say that “the local social welfare
and development officer shall conduct an initial assessment to determine the
appropriate interventions and whether the child acted with discernment, using the
discernment assessment tools developed by the DSWD” [Department of Social Welfare
and Development]. (1) Section 8 of House Bill No. 8858 seeks to add context through
an amendment to “include identification of physical and mental health issues, substance
abuse and family issues” in the assessment, although it is unclear if the presence of
these issues will be considered as
mitigating circumstances in determining the child’s discernment.

We wish to cite evidence drawn from studies taking into account brain and behavioral
development in the Philippine context, which shows that the age of discernment for
children is between 15 and 18 years old.

For reference, see: 1) Pamantasan ng Lungsod ng Maynila, “Beyond

Innocence,”1997, a research commissioned by the Philippine
government’s Council for the Welfare of Children and 2) Philippine
Action for Youth Offenders, “Arrested Development,” 2002. “Beyond
Innocence” sets the age of discernment for Filipino schoolchildren at 15 years old.
“Arrested Development” establishes the discernment age of outof-school children at 18
years old.

More recently, the Philippine Pediatric Society states in its position paper (undated) that:
“Neuroscience research has proven that the brain does not fully develop until the age of
25.”

This is in agreement with Johnson Sara B., Blum, Robert W., and Gledd, Jay N.,
“Adolescent Maturity and the Brain: The Promise and Pitfalls of Neuroscience Research
in Adolescent Health Policy,” J Adolesc Health, 2009 September 45(3): 216-221. To
quote this journal article: “Longitudinal neuromanaging studies demonstrate that the
adolescent brain continues to mature well into the 20s.”

This is the kind of evidence that informs the current legislation titled
Juvenile Justice and Welfare Act of 2006 or Republic Act (RA) No. 9344, which states
that a “child fifteen (15) years of age or under shall be exempt from criminal liability.”
Further, RA No. 9344 says that a “child above fifteen (15) years but below eighteen (18)
years of age shall likewise be exempt from criminal liability and be subjected to an
intervention program, unless he/she has acted with discernment….”

Some quarters will point out that United Nations Convention on the Rights of the Child
General Comment No. 10 (UN CRC GC 10) considers the minimum age of criminal
responsibility below the age of 12 years as “internationally acceptable.” But in the same
breath (paragraph 32), it says: “States parties are encouraged to increase their
minimum age of criminal responsibility…to a higher level.” Moreover, in paragraph 33,
the UN CRC GC 10 “urges States parties not to lower their minimum age of criminal
responsibility to the age of 12.”

Clearly then, reducing the minimum age of criminal responsibility in the Philippines from
the present age of 15 years old to the age of 12 years old is a serious retrogression.
House Bill 8858 and Senate Bills 1603 and 2026 ignore the evidence drawn from the
specific Philippine context and from neuroscience research, and they violate the spirit of
the international convention.

2. Consistency of Legislation

Legislation concerning children and adolescents must be consistent with other laws.
Philippine legislation and other rules are aware of the constraints on the intellectual,
psychological, and emotional maturity of adolescents.

Examples abound. One cannot get married if he or she is under the age of 18 years old.
And one must be at least 21 years old to get married without parental consent. A
requirement for voting is that the citizen should be 18 years of age and above. The
minimum legal age is 18 years old for any person to buy, sell, or smoke tobacco and
alcohol products. In a word, the age of 18 years is the age of majority in the Philippines.

In short, House Bill 8858 and Senate Bills 1603 and 2026 contradict the intent and
substance of other pieces of legislation that govern the behavior of adolescents.

Some make the fuss that House Bill 8858 and Senate Bills 1603 and 2026 distinguish
the treatment as between adults and adolescents (from 12 years of age to below 18
years of age). Adolescent offenders who commit serious crimes will be placed
mandatorily within a youth care facility or Bahay Pag-asa, while adolescent repeat
offenders (not necessarily of serious crimes) shall undergo an “intensive intervention
program” that includes placement in a youth care facility or Bahay Pag-asa (Sections 4
and 5 of HB 8858). By definition, the physical mobility of residents of these centers may
be restricted pending court disposition of charges against them (Sections 4.s and 4.t of
RA 9344). The existing law allows the imprisonment of not more than 12 years (as
maximum penalty) but
also authorizes institutional care and custody as part of a court-level diversion program
(Sections 37 and 31.c.5 respectively of RA 9344).

3. Effectiveness and Efficiency

We question the effectiveness and efficiency of reducing the minimum age of criminal
responsibility to 12 years old in deterring crime and participation of juveniles in criminal
activities.

The proposal merely addresses the technique (or the technology) that uses juveniles as
accessories to commit crimes. But criminals will adapt and will use a different strategy
and technique in response to the change in the rule. In designing rules, we anticipate
the change in behavior of subjects. Behavior has variations and can move towards
different directions, depending on the rule design.

Like any other person, a criminal has a “feasible set of alternatives,” constrained by his
human, financial and technological resources. In this case, lowering the age of criminal
responsibility does not deter commission of the crime because the criminal will look for
an alternative way to commit the crime. He can, for example, deploy other children who
are below 12 years old to commit the crime!
Using children between the age of 12 years old and 18 years old to commit crime will
not stop either. Consider their attributes: They lack discernment (based on the scientific
evidence); they do not have full information about the law and its consequences; they
do not make a calculus of the costs of criminal behavior; they are prone to increased
risktaking and novelty-seeking activities; they can be easily coerced to follow orders.

The design of the law therefore must avoid unintended perverse

consequences. Strategic action requires focusing the work on capturing the head and
the core of the criminal syndicates, not the minors.

It goes without saying that the effective strategy in discouraging crime is by increasing
the probability of capture and conviction of criminals, making punishment and fines
credible, and tackling the social and economic causes of crime.

4. Fairness

To be sure, the main causes of crime, especially crimes against property where children
are involved, include poverty, lack of education, and lack of productive opportunities or
gainful employment. Thus, the majority of children who commit crime come from the
poor. Yet, the statistics from the Philippine National Police (January 2002 to December
2012) show that children commit only two percent of the total number of crimes.

The predictable outcome of further reducing the minimum age of criminal responsibility
is having more children from poor families being detained or imprisoned. A
sledgehammer is being used to crack a nut, as it were, considering that the children
account for a tiny fraction of total crimes. The House Bill 8858 and Senate Bills 1603
and 2026 are fixated on an outlier in the system, but one which adversely affects mostly
the poor.

5. Social Norms

The field of law and economics recognizes how formal laws co-exist with social norms.
Social norms are shared, observed and enforced by society in general, without need to
resort to legalese. These social norms include the respect and care for the elderly or
senior citizens and the children or juveniles.

Legislation must not undermine a social norm of the whole of Philippine society—the
care and protection of children. Such a norm can partly explain why children are
shielded from the commission of crimes (as shown by the statistics that children commit
only a small fraction of crimes). Yes, even criminals cannot escape the social norms. As
a custom or as a norm, making children become evil is simply not done.

Another example in the law that contradicts Filipino social norms pertains to the intent
and use of the youth rehabilitation centers and Bahay Pagasa. Ostensibly, they are for
rehabilitation. But section 4.s and 4.t of RA 9344 design them as a place of detention
when the law allows the physical mobility of children to be restricted pending court
disposition of the charges. Will detention, particularly the involuntary type, serve
rehabilitation and restorative justice?
Essential to Filipino social norms is the role of the family unit in the
development of a child. Similarly, community spirit and cooperation are part of our social
norms. In this light, the locus of rehabilitation and restorative justice is the family and the
community; separating vulnerable children (those ages 12-15 years old with more
impressionable minds) from their families, without providing proof that the alternatives
offer greater opportunities for resolving the issues that caused the children to commit
offenses in the first place seem illogical. Detention in an impersonal center pushes
children away from society, which is more likely to make them recidivist and turn them
into hardened criminals.

Compounding the problem is the lack of Bahay Pag-asa facilities.

According to the Juvenile Justice and Welfare Council (JJWC), only 35 of the 114 (the
mandated number) Bahay Pag-asa facilities are fully operational. This means that a
significant number of the detained juveniles will have to be transferred to prisons
occupied by adult convicts. Accounts also reveal that some of the Bahay Pag-asa
centers are “worse than prisons.” The Executive Director of JJWC told Philippine Star
(January 29, 2019) that some of the facilities have “subhuman conditions.”

Here, we can infer that politicians in local government units have a weak commitment to
improving the infrastructure and service of Bahay Pagasa. The incentive is weak
because the children in the Bahay Pag-asa, after all, do not vote, and their families are
disempowered.

In conclusion, we appeal to the legislators in both the House of

Representatives and the Senate to set aside or do away with House Bill 8858 and
Senate Bills 1603 and 2026. They fail the criteria we have set, in terms of discernment,
consistency of legislation, effectiveness and efficiency, fairness, and social norms.

The evidence and the science, together with the application of law and economics that
we have learned from our profession and discipline, tell us that the bills’ controversial
measures will result in worse outcomes for our children and our society.

In this light, we express solidarity with the concerned sectors of society, including the
other professional associations, which have articulated well-argued positions and
expressed opposition to the said bills.

Our position paper acknowledges that the existing legislation on juvenile justice has its
weaknesses. For that matter, no law is perfect.

From our discipline, we are aware that the so-called first-best option does not
necessarily produce the best outcome in the real world. Similarly, while the law is
supposed to result in providing the most benefits for society, the minimum necessary
condition is to ensure that the law will cause the least harm to our people. In this
context, the Juvenile Justice and Welfare Act of 2006, despite its flaws, is an
improvement, and it causes least harm in comparison to House Bill 8858 and the
pending bills in the Senate.
We instead urge our legislators to affirm the implementation of the
Juvenile Justice and Welfare Act of 2006 and seek ways to improve its practice by
emphasizing restorative, not punitive, justice.

What we seek, to quote the late Senator Pepe Diokno, is “a nation for our children.” --
28 January 2019

ENDNOTE:

(1) Page 6 of DSWD Administration Order 10 (2007) stated that discernment will be
based on: (i) facts and circumstances surrounding the case; (ii) educational level and
performance of the child in school; (iii) appearance, attitude and child’s demeanor
before, during and after commission of the offense; and (iv) assessment of a
psychologist/psychiatrist which the social worker may request. We contend that these
may still lead to arbitrary and subjective judgments.

Philippines moves to lower criminal liability age to nine

Senators and rights groups call the proposal a threat to children's welfare and a 'race to
the bottom'.
A proposal to lower the age of criminal liability in the Philippines to nine years has come
under fire from human rights groups and legislators who warned the move could harm
rather than protect children.

The justice committee of the House of Representatives on Monday approved a bill

proposing to lower the age of criminal liability from 15 to nine.

"This bill was brought about by the alarming increase in the number of criminal
syndicates using minors to carry out criminal acts based on recent news reports,"
House justice committee chairman Doy Leachon said in a statement defending the
proposal.

Leachon told reporters children would not be imprisoned, but would instead undergo
"rehabilitation, reformation and confinement" in reformative institutions.

The Senate's justice committee began deliberating the proposal on Tuesday.

'Accept responsibility'
Crimes covered by the bill were murder, parricide, infanticide, serious illegal detention,
car-jacking and violation of the Dangerous Drugs Act.
Under the proposed law, a child above nine years old but below 18 years old, when they
commit an offence, would be exempted from criminal liability and intervention unless
they had acted with discernment, in which case the child shall be subjected to
appropriate proceedings.

President Rodrigo Duterte previously urged Congress to lower the age of criminal
liability to ensure that "the Filipino youth would accept responsibility for their actions and
be subjected to government intervention programmes", the Manila Times reported.

Presidential spokesperson Salvador Panelo said the measure would deter criminals
from corrupting children and turning them into criminals.

"If you have a law that will criminalise this particular age bracket, they will no longer be
used by criminals [in their illegal acts]. They are using them now because they will be
freed, they can get out. Now, this is the purpose of the president [to counter that]," he
said.

'Completely out of bounds'

A number of senators expressed concern over the move.

Senator Benigno "Bam" Aquino 4th described the bill as "immoral" and said he doubted
it would be passed in the Senate.

"I absolutely doubt that this will pass the Senate. I think there's enough in the Senate
currently who know that lowering the age of criminal liability to nine years old is
completely out of bounds," he said in a statement.

"It is anti-family, anti-poor and simply unjust. Moreover, it will promote a heartless and
ruthless society that has no regard for its own people," said Senator Antonio Trillanes,
one of Duterte's biggest critics.

Risa Hontiveros said the idea went against Philippines' international commitments and a
global trend of raising, not lowering, the criminal age. "Is this a race to the bottom?" she
told a Senate hearing.

The non-governmental organisation Save the Children released a statement saying

lowering the age of criminal liability was not in the best interest of children.

"This will only push them to further discrimination, abuse and eventually into more anti-
social behaviour," it said.

Save the Children instead suggested the Juvenile Justice and Welfare Act fully
implement programmes preventing and responding to criminal behaviour by children
and reintegrating offending children back into their families.
Lowering criminal age to 12 (The Philippine Star) - January 29, 2019 Domini M.
Torrevillas

The problem of disciplining children has been with us parents since time immemorial.
Parents have applied their reformative formula to have their offspring toe the line – from
whipping them with slippers, belt and canes, to making them kneel on mongo beans
and salt, to punching them black and blue – all sorts of corporal punishments.

The ‘’sins’’ committed by children before were simpler – going to movies alone, talking
back, petty thefts, bullying of younger siblings. Today the ‘’crimes’ have worsened, due
to the malevolent effects of the digital age – television, the internet, immersion in
communication gadgets – wrong values, and materialism.

Philippine National Police Chief Director-General Oscar Albayalde said in a press

briefing that there are 12,139 minors involved in crimes ranging from rape, robbery,
theft, and peddling of illegal drugs.

For sure, parental physical punishment will not suffice to check on these grave
problems. The state comes in to mete retributive measures, among them sending them
to jail, the length of time depending on the gravity of crime committed and decision of
the juvenile court.

But at what age should penal sanctions be imposed? R.A. 9344 or the Juvenile Justice
and Welfare Act of 2006 provides that children aged 15 years old and above but below
18 years old are exempt from criminal liability.

From my stand, a nine-year-old child is still like a child, to be hugged close to one’s
breast. But there are cases of nine-year-olds committing crimes, including rape, and
being used by syndicates to rob houses, grab purses of pedestrians, and making
trouble in the neighborhood.

Tarlac Rep. Victor Uy who authored a bill on determining the age of criminality to be 9,
said recorded crimes involving children has risen to an average of 15,000 per year. The
bill caused a public uproar, resulting in the committee’s amending the age to
12. According to Oriental Mindoro Rep. Doy Leachon, the House justice committee
chair, the bill is pro-children legislation. If the criminal syndicates would realize (the
children) would no longer be exempt (from legal penalties), they will no longer exploit
the children.’’

The Senate, looking for an acceptable age, presumably will vote on the age of 12. Two
files have been filed by Senate President Vicente Sotto III and Minority Floor Leader
Franklin Drilon, who are pushing for a lower age of liability to 12. The Senate chair of
the committee on justice and human rights, Sen. Richard Gordon, has been quoted as
saying, ‘’Twelve-year-old children have a more serious understanding of what is good
and what is bad.’’
‘’The children used in the commission of crimes can be used as witnesses against the
person using them,” Gordon said. “We need to ensure their safety. The syndicates tell
the children, ‘’Don’t pinpoint to us. If you do, we will not give you drugs or we will shoot
you. Those are the threats, and this worsens the problem.’’

Understandably Human Rights Watch and the National Commission on Human Rights
denounce the lowering of the age to 12. The law’s impact, they said, would be punitive:
children from 14 to 9 who commit serious crimes such as murder, illegal detention, or
carnapping or violating the country’s draconian drug laws can be sentenced to
“mandatory confinement” of up to 12 years.

The Philippine representative of the United Nations children’s organization, Unicef, cited
neuroscientific research that shows the brain is still developing into the mid-20s,
including the ability to inhibit impulses, weight consequences of decisions, prioritize and
strategize.

Under the Convention on the Rights of the Child, which the Philippines has ratified, the
arrest, detention or imprisonment of children should only be used as a last resort, and
rehabilitation is a priority. The UN Committee on the Rights of the Child, which monitors
government compliance with the convention, states in its draft general comment on
juvenile justice that the age of criminality should be at least 14 years, and should under
no circumstance be reduced below that.

As explained by Leachon, the House bill offers “rehabilitation, and obliges the child
offenders’ parents to undergo a mandatory intervention program, or face six month
imprisonment otherwise.

‘’If ever there will be no conflict with the law, they will be protected, reformed, and
rehabilitated in order for them to be human beings, the state has always the right to
defend them, as we believe nation-building should be made with children,’’ said
Leachon.

The measure does not prescribe imprisonment in ordinary detention centers. Instead
they would be confined in youth care facilities – which will be supervised by a
multidisciplinary team composed of doctors, psychologist, social workers and
representatives from the court and police for a maximum of one year.

The family court would later determine if the child offender could be discharged. If the
child is found guilty of the crime he committed as a minor, there will be suspension of
judgment. He will also be brought to an agricultural training center, which is supervised
by the Bureau of Corrections and the Technical Education and Skills Development
Authority (TESDA).
For his part, Sen. Francis “Kiko” Pangilinan said the government should crack down on
syndicates exploiting minors instead of lowering the minimum age of criminal liability. If
the children the syndicates are using are detained, there will still be so many children
that they can abuse and use.

Among the amendments cited by the House bill is the provision ensuring funding for the
construction of more “Pag-asa” youth facilities, in addition to the existing 58. Sen.
Panfilo Lacson said in a radio interview that some provinces may be not be able to
build, much less maintain Pag-asa facilities, as “funding for this is no joke, it may run to
tens if not hundreds of millions of pesos.”

To that, Sen. Sherwin Gatchalian said he is sure there will be funding for this program.

The Senate version might have been approved at this writing. But more than having a
law on criminal liability, we hope and pray that the reasons why children commit criminal
acts can be put to an end, if not reduced.

***

In fairness, I am putting out the letter of Atty. Emelita Alvarez which refutes the claim of
her mother, Emily Alvarez, which I wrote about in my Jan. 22, column, that her father,
former House Speaker Pantaleon Alvarez, abandoned her mother and his family. This,
she wrote, “is far from the truth.”

Attorney Alvarez quoted the case of De La Cruz v. De La Cruz, G.R. No. L-19565, Jan.
3, 1968, where the Supreme Court said that “where a husband after leaving his wife,
continued to make small contributions to her support and that of their minor child, he
was not guilty of abandonments.”

Her father, writes Attorney Alvarez, “never ceased giving support. He is actually the
primary provider of our family. He continues to provide for everything indispensable for
sustenance, dwelling, clothing, medical attendance, education and transportation, in
keeping with the financial capability of the family.”

“Our father makes us laugh with his corny jokes when we’re sad. He has always sent
all his children to school, given us guidance with our respective careers, and he tries to
be there for us not only in times of comfort but most especially in times of hardship. He
is a good father during good times. He is a better father during bad times.

“Factually speaking, on the part of my mother, my siblings and I don’t even live with her.

“My father has his faults and flaws like everyone else. He does not, however, ‘shirk his
responsibilities.’ Neither is he the kind of person who abandons his family, most
especially his children. He has not – and given how I know him throughout life, will not
abandon us.”