ON LOWERING THE AGE OF CRIMINAL LIABILITY

(ANTI)

This Position Paper is

Submitted by

Nikka Doria and Dinavil Belocura

September 22, 2019

 INTRODUCTION

Criminality as defined, is a behavior that is contrary to or forbidden by criminal law.

Criminality nowadays, is in its crucial condition which needs prompt actions by the State for it

undeniably creates an immense challenge to the country in its entirety.

Criminal cases and violence permeate everywhere and the worst scenario is the involvement

of several minors. Adolescence as being distinguished from adults, are still influence by the stimuli

in their respective environment which enables them to develop certain characteristics and habits

which they may discern as right and wrong practices, or to abridge they aren’t as stable in every

aspect as much compared to people who are considered as adults. The involvement of minors in

criminality undermines the rights of children to be safe and grow up in a protective environment.

It is our well founded belief that minors who were involved in crimes, committed one, or

participated in some illegal doings were for the reason that they are precipitated by compulsive

factors whether it be persons or current circumstance. This is a sad thing to note.

The youth, as recognized to be the hope of the nation, are ought to be engaged with activities

and circumstances that will cultivate their whole-being which accordingly becomes their

contribution for the country’s continual progress. Our youth shall be protected and guided towards

the right path.

 STATEMENT OF THE ISSUE

One of the most contentious issues in the present, is the lowering of the minimum age of

criminal liability. Amidst the existence of an operative law known as “Juvenile Justice and Welfare

Act of 2006”, which states that children who commits crime at the age of 15 or under shall be

exempt from criminal liability, there is a new House Bill on lowering the minimum age of criminal

liability from 15 to 12. Consequently, the emergence of the issue pertaining to the lowering of age

of criminal responsibility implies diverse effects to children and will create commotion among

various sectors and units of the country.

The significance of the minimum age of criminal responsibility is that it recognizes that a

child has attained the emotional, mental, and intellectual maturity to be held responsible for their

actions.

Anent thereto and encompassed with the belief that the proposed matter will undermine the

interest of children and not even considered a solution on the problem of children committing

crimes, we vehemently oppose the lowering of the minimum age of criminal responsibility. The

existing minimum age shall be maintained and this is our grave concern.
POINTS IN THE AFORESAID ISSUE

I.

Inconsistent Towards Existing Provisions

II.

Deficiency in Decision-making Capacity

III.

Detriments Child Rights

 ARGUMENTS

This is to expressly elaborate the above stated points on the basis of our stance on the

subject matter:

I. On the first point, the existing laws of the Philippines gives protection and promotes the

best interest of the children. Legislation passed concerning the youth shall be in

concurrence with the various implemented laws, since these laws were formulated with

the consciousness of the intellectual, psychological constraints and emotional maturity

of the children below the legal age as the primary consideration.

Such laws as, one’s marriage is null and void if contracted under the age of 18. In fact,

one must be at least at the age of 21 to be able to marry without parental consent.

Another is the right of suffrage which requires one to be at least at the age of 18 to

officially cast his/her vote. Lastly, in order to buy, sell, or consume alcohol products or

smoke tobacco, one must be at least 18 years old. Generally, the age of majority in the

Philippine context is 18 years of age. These laws imply that those that are below the age

of majority doesn’t have the judicial capacity to act and understood that minorities

aren’t that accountable yet to be granted legalistic responsibilities.

Also, lowering the age of criminal liability is a breach of our entered international

commitment vis-a-vis United Nations Convention on the Rights of Child or UNCRC,

wherein the Philippines is one of the signatories obliged to follow the rules specifically

under 1 General Comment No. 10, which states that the country should no longer lower

its MACR once it has been set; in our case, it is at age 15 and the age of 12 years is

considered by the Committee not to be “internationally acceptable”.

In the same context, 2 Paragraph 32 Rule 4 of the Beijing Rules stipulates that “States

parties are encouraged to increase their minimum age of criminal responsibility to a

higher age level.

 The lowering on the age of criminal liability manifests a contrasting concept to the

aforesaid laws.

II. On the second point, decisions made by minors are unreliable and insufficient due to
3
some factors which includes the neurological aspect of a person. Adolescence is a time of

physical, cognitive, social, and emotional growth and change. 4 The decision-making capacity

of a person is relied on the frontal cortex of the brain which is responsible for an individual’s

ability to plan, recognize consequences of actions, solve problems and control impulses.
5
A majority of the executive functions that we develop are via the prefrontal cortex.

This allows us to help assess risk, think ahead, evaluate ourselves, set goals, and regulate our

emotions.

There are a variety of functions for which the prefrontal cortex is responsible which

includes: 6 Attention- the ability to focus on one thing, while ignoring distractions is a function

of our prefrontal cortex; Complex planning- anytime you set a goal that requires some degree

of planning, your prefrontal region is at work. Planning out tasks in your day, developing a

business plan, etc. – this region is responsible. An underdeveloped prefrontal region means that

your planning capabilities haven’t been solidified; Logical thinking- justifying behaviors based

off of emotions rather than logic. When the prefrontal cortex fully develops, logical thinking

simultaneously improves. This means you will be better at rationalizing and making smarter

choices; Risk management- the ability to assess risky situations and determine whether they

will result in long-term benefit. Those who are poor at assessing risk may have underdeveloped

prefrontal regions. The ability to turn down immediate gratification for long-term rewards is a

result of this region.

7
In addition to neural development, there are major changes in hormones at puberty.

Significant neural development and hormonal changes are likely to influence social cognition.

Social cognition, then, may also be expected to change during this time period.
 Adolescents judgment and their actual decisions are also affected by psychosocial

immaturity hence they are likely to be inefficient in their decision-making capacity.

8
Among the psychosocial factors that are most relevant to understanding in judgment

and decision making are (a) susceptibility to peer influence, (b) attitude toward and perception

of risk, and (c) future orientation.

9
Whereas cognitive capacities shape the process of decision making, psychosocial

immaturity can affect decision-making outcomes, because these psychosocial factors influence

adolescent values and preferences in ways that drive the cost–benefit calculus in the making of

choices.
10
First, teenagers are more responsive to peer influence than are adults. Peer influence

affects adolescent judgment both directly and indirectly. In some contexts, adolescents make

choices in response to direct peer pressure to act in certain ways. More indirectly, adolescents’

desire for peer approval—and fear of rejection—affect their choices, even without direct

coercion. Peers also provide models for behavior that adolescents believe will assist them in

accomplishing their own ends (Moffitt, 1993).

11 Adolescence is not just a time for the increasing importance of peer relationships, but it is also

a time of increased susceptibility to peer pressure. Peers affect adolescents’ decisions to engage (or

not engage) in risky behaviors (Blakemore and Mills 2014; Miller 2009). Social acceptance

becomes central to much of adolescent behavior, perhaps because it is a developmentally sensitive

period in which youth are highly attuned to picking up on and responding to social cues from their

social environments (Blakemore and Mills 2014). Thus, to the degree that social conformity is

perceived as central to popularity among peers, early and middle adolescents are especially

vulnerable to peer pressure as they strive toward peer approval and acceptance (Gavin and

Furman 1989). https://link.springer.com/article/10.1007/s40894-017-0071-2

Because of the desire for approval and belonging at this stage, adolescents’ choices

reflect what they believe will merit the approval of their peers. Peers and adults serve as

models for behavior that adolescents believe will help them achieve their goals.
 12 Second, it is well established that over an extended period between childhood and

young adulthood, individuals become more future-oriented. Studies in which individuals are

asked to envision themselves or their circumstances in the future find that adults project out

their visions over a significantly longer time frame than do adolescents (Greene, 1986; Nurmi,

1991). In addition, in studies in which individuals are queried about their perceptions of the

short-term and longer term pros and cons of various sorts of risk taking (e.g., the risk of having

unprotected sex, Gardner & Herman, 1990) or asked to give advice to others about risky

decisions (e.g., whether to have cosmetic surgery; Halpern-Felsher & Cauffman, 2001),

adolescents tend to discount the future more than adults do and to weigh more heavily short-

term consequences of decisions—both risks and benefits—in making choices. There are at least

two plausible explanations for this age difference in future orientation. First, owing to cognitive

limitations in their ability to think in hypothetical terms, adolescents simply may be less able

than adults to think about events that have not yet occurred (i.e., events that may occur

sometime in the future). Second, the weaker future orientation of adolescents may reflect their

more limited life experience. For adolescents, a consequence 5 years in the future may seem

very remote in relation to how long they have been alive; teens may simply attach more weight

to short-term consequences because they seem more salient to their lives (Gardner, 1993).

13 Third, adolescents differ from adults in their assessment of and attitude toward risk.

In general, adolescents use a risk–reward calculus that places relatively less weight on risk, in

relation to reward, than that used by adults. When asked to advise peers on making a potentially

risky decision, for example (e.g., whether to participate in a study of an experimental drug),

adults spontaneously mentioned more potential risks than did adolescents (Halpern Felsher &

Cauffman, 2001). In addition, experimental studies that use gambling tasks show that,

compared with those of adults, adolescents’ decisions are more driven by rewards and less by

risks (see Furby & Beyth-Marom, 1992). A number of explanations for this age difference have

been offered. First, youths’ relatively weaker risk aversion may be related to their more limited

time perspective, because taking risks is less costly for those with a smaller stake in the future

(Gardner & Herman, 1990). Second, adolescents may have different values and goals than do
adults, leading them to calculate risks and rewards differently (Furby & Beyth-Marom, 1992).

For example, the danger of some types of risk taking (e.g., driving well over the speed limit)

could constitute reward for an adolescent but a cost to an adult. In addition, considerable

evidence indicates that people generally make riskier decisions in groups than they do alone

(Vinokur, 1971); there is evidence both that adolescents spend more time in groups than do

adults and, as noted earlier, that adolescents are relatively more susceptible to the influence of

others.

https://www.researchgate.net/publication/8968453_Less_Guilty_by_Reason_of_Adol

escence_Developmental_Immaturity_Diminished_Responsibility_and_the_Juvenile_

Death_Penalty

Intellectual, psychological, and emotional immaturity affects the discernment of

children and adolescents. 14 Discernment is that mental capacity of a minor to fully

appreciate the consequences of his unlawful act as defined in the case PEOPLE OF THE

PHILIPPINES vs. HERMIE M. JACINTO. It is the act or process of exhibiting keen insight

and good judgment.

chanRoblesvirtualLawlibrar

15 Alampay, a member of the Psychological Association of the Philippines (PAP)

and a professor at the Ateneo de Manila University, raised that the issue goes beyond a

“simplistic understanding of discernment” She added: "But the situation or question is more

complex [than] that sort of 'right versus wrong' notion of discernment. [It's] not just

knowing, but having [the] capacity to act on that knowledge." She also noted that a person's

brain is still developing through childhood and adolescence.

She said, the slowest developing part of the brain is the part that governs higher-

order thinking capacities, the ability to plan, make long-term decision, control impulses,
regulate behaviors, and "all those capacities that make a person mature, responsible, and

accountable."

Although they may be able to discern right from wrong action, it is their capability

to act in ways consistent with that discernment that is undermined. They will find it more

difficult to act in accordance with what they may discern or know to be right versus wrong

action.

Adolescence is a time characterized by immense development of such part which

implies that minors rely on other part of the brain which is associated with emotions,

impulses, aggression and instructive behavior. This implication means that emotions are

unregulated because of the underdeveloped frontal lobe which in effect compromised the

judgment of the minor towards certain circumstance.

As the connections between the emotional and reasoning part of the brain are still

developing, children do not yet have the ability to independently control their own thoughts

and emotions, especially in complex situations.

With this fact, it can be inferred that discernment requires well developed

intellectual, emotional and psychological aspect. As these aforementioned aspects are still

developing in adolescence stage accordingly means that there is a deficiency in decision-

making of children.

Children would not be able to fully anticipate all the possible consequences of their

actions for themselves and society as a whole. Their inability to decide reasonably and the

weakness of their judgment makes them susceptible to commit grave mistakes.

Their involvement in criminal activities are driven on their neurological and

psychosocial stimuli which in their level is still developing and hence, incapable of making

good judgments.
 III. On the third point, lowering the age of criminal liability is against child’s rights.

The State recognizes the child as an important asset. Hence, it is the duty of the nation

to make sure that the rights of a child are protected- from the moment he/she becomes a fully-

developed Filipino citizen.

Several laws protecting child’s right reiterates that everything be done in consideration

and satisfaction of the best interest of the child. These laws are (a) The Child and Youth Welfare

Code; (b) Republic Act No. 9344- An Act Establishing a Comprehensive Juvenile Justice and

Welfare System, Creating The Juvenile Justice and Welfare Council Under the Department of

Justice, Appropriating Funds Therefor And For Other Purposes (c) Republic Act No. 7610 -

An Act Providing for Stronger Deterrence and Special Protection against Child Abuse,

Exploitation and Discrimination, and for other purposes.

16 Article 3, Section 12 of The Child and Youth Welfare Code states:

http://www.chanrobles.com/childandyouthwelfarecodeofthephilippines.htm#.XYUVFCgza01

“Every child has the right to grow up as a free individual, in an atmosphere of peace,

understanding, tolerance, and universal brotherhood, and with the determination to contribute his

share in the building of a better world.”

17 Section 2 of R.A No. 7610 states:

https://www.lawphil.net/statutes/repacts/ra1992/ra_7610_1992.html

The best interests of children shall be the paramount consideration in all actions concerning

them, whether undertaken by public or private social welfare institutions, courts of law,

administrative authorities, and legislative bodies, consistent with the principle of First Call for

Children as enunciated in the United Nations Convention of the Rights of the Child. Every
effort shall be exerted to promote the welfare of children and enhance their opportunities for a

useful and happy life.

18 Section 2 of R.A 9344 states:

https://www.lawphil.net/statutes/repacts/ra2006/ra_9344_2006.html

(a) The State recognizes the vital role of children and youth in nation building and shall

promote and protect their physical, moral, spiritual, intellectual and social well-being. It shall

inculcate in the youth patriotism and nationalism, and encourage their involvement in public

and civic affairs.

(b) The State shall protect the best interests of the child through measures that will

ensure the observance of international standards of child protection, especially those to which

the Philippines is a party. Proceedings before any authority shall be conducted in the best

interest of the child and in a manner which allows the child to participate and to express

himself/herself freely. The participation of children in the program and policy formulation and

implementation related to juvenile justice and welfare shall be ensured by the concerned

government agency.

19 Article 40 (1&3) of the United Nations Convention on the Rights of the Child

which Philippines is a state signatory emphasizes:

https://www.ohchr.org/en/professionalinterest/pages/crc.aspx

1. States Parties recognize the right of every child alleged as, accused of, or recognized as

having infringed the penal law to be treated in a manner consistent with the promotion of the

child's sense of dignity and worth, which reinforces the child's respect for the human rights and

fundamental freedoms of others and which takes into account the child's age and the desirability

of promoting the child's reintegration and the child's assuming a constructive role in society.

3. States Parties shall seek to promote the establishment of laws, procedures, authorities and

institutions specifically applicable to children alleged as, accused of, or recognized as having

infringed the penal law, and, in particular:

(a) The establishment of a minimum age below which children shall be presumed not to

have the capacity to infringe the penal law;

(b) Whenever appropriate and desirable, measures for dealing with such children without

resorting to judicial proceedings, providing that human rights and legal safeguards are fully

respected. A variety of dispositions, such as care, guidance and supervision orders;

counselling; probation; foster care; education and vocational training programmes and

other alternatives to institutional care shall be available to ensure that children are dealt

with in a manner appropriate to their well-being and proportionate both to their

circumstances and the offence.

All of these laws are for the purpose of upholding the efforts of the State to build a

child-friendly justice system. These aims for the full enjoyment of the right of every child

to live in a society that offers or guarantee him safety, health, good moral environment and

facilities for his wholesome growth and development. Children’s rights must be upheld for

the full and harmonious development of his or her personality.

The implementation of the lowering of MACR degrades the rights of children as it

contradicts the laws enacted for their survival, development, be protection and participation

in decisions that impact their lives.

20 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.

(https://www.unicef.org/philippines/press-releases/lowering-age-criminal-responsibility-

against-child-rights-unicef)

Unicef added, “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 child-sensitive

justice and social welfare systems”.

This proposed action neither strengthens the country's juvenile justice system nor it

promotes the welfare of children and young people. 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.

They could have become a significant asset in our society only if they will be

reformed and be lead to the right path again.

IV. CONCLUSION (Recommendation)

Lowering the minimum age of criminal responsibility from 15 to 12 undermines

efforts to build a child-friendly justice system. A child who violated the law needs

intervention in a rehabilitation center. The child should not be treated like an adult offender.

1. Youth offenders will increase, the jails will become crowded and we will have a generation

who by the circumstances of poverty, deprivation, lack of education, and manipulation of

syndicates will become criminals. This punitive rather than reformative action of society

will deprive misguided youth the chance for a better or a reformed life.

2. Setting 12 as the minimum age for those who can be arrested will not lower crime rates

because criminal gang or syndicate will only hire children below 12 years old in their

operations, hence we are not solving anything.

3. Lowering the criminal responsibility will not solve the problem, instead putting children in

conflict with the law into cell will simply harden them further as criminals.

4. However, many opposed to the measure because it neither strengthens the country's juvenile

justice system nor it promotes the welfare of children and young people. It undermines

efforts to build a child-friendly justice system by lowering the minimum age of criminal

responsibility from 15 to 12. A grade six student who violated the law needs intervention

in a rehabilitation center. The child should not be treated like an adult offender.

5. Children’s rights advocates are unfavorable to lower the minimum age of criminal

responsibility. According to them, if we are going to put these children in conflict with the

law into cell, nobody will accept them in any job or if there is, very few after they served

their sentence. Their life will be wasted in an early age. They could have become a

significant asset in our society only if they will be reformed and be lead to the right path

again. Talents and skills that could have been nurtured will be simply thrown away because
 they will be full of hatred once they are out in the cell. Statistical data reveals that lowering

the age for criminal liability does not lower the crime rates.

6. Children in poverty fight to traverse a dangerous landscape every day. Children do

not select their families. Children are unable to choose where they live and what kind of

education they can afford. Children do not have the ability to decide on their socio-

economic status. But when they step inside a courtroom, the consequences from all of these

variables come weighing down on their shoulders with the swift stroke of a gavel. This is

the end result of a life with little-to-no options that many children in conflict with the law

confront.

7. Apparently, it is hunger, lack of education and dysfunctional families that put

children in a position that increases their tendencies of getting involved in, say, robbery or

substance abuse. “No one is born a thief, a murderer, a drug addict or a criminal”. It is

hunger and extreme poverty that pushes them to hijack a jeep and rob its passengers of their

possessions; it is dysfunctional families that lead them to be dependent on alcohol or illegal

drugs; it is the lack of education and opportunities that push them to look for “easy money”.

8. Moreover, some children are predisposed to get involved in criminal activities and

violence due to their social milieu. Since the police are in the forefront of the fight against

crime, they lead in the effort to seek an amendment to or repeal RA 9344. The law is a pain

in the neck, so to speak, of the police. Thus, the proposed amendment for a lower age of

criminal responsibility is a preventive measure that aims to make children realize the

criminal nature of their deeds and fear punishment.

9. Though the message of the Convention on the Rights of the Child is that

criminalization of children should be avoided, this does not mean that young offenders

should be treated as if they have no responsibility. On the contrary, it is important that

young offenders are held responsible for their actions and, for instance, take part in

repairing the damage that they have caused.

10. Detention of children should be used “only as a measure of last resort and for the

shortest appropriate period of time”, as the UN Convention says. Such detentions should
take place in specific and children-friendly establishments and be separated from adult

prisoners and, in particular, from hard-core criminals. Contact with the family should be

encouraged and facilitated, if that is in the best interests of the child.