Kids in conflict with the law and lowering of criminal liability

By Joel Pablo Salud

First of three parts

Carlo (not his real name) fell into the hands of the police at the age of 13. The charge:
distribution and abuse of rugby, an inhalant popular to street children his age.

It wasnt his first jaunt into prison. A year ago, he was caught and charged with assaulting a
fellow young boy with a knife in a gang rumble. He fled his home to live in the streets years
ago to escape an abusive father.

The cell, with an approximate size of 3 meters by 7 meters, forced the child to squat for
hours just to fit. The overwhelming heat and reek of body odor proved unbearable to the
child. Food was scarce, and health risks, like pneumonia, tuberculosis and HIV, formed the
added penalty to incarceration.

Children in detention

This scenario repeats itself each time indiscriminate rescue operations and arrests of
children in conflict with the law are staged.

In Philippines: Jailed Children are the Victims of World Poverty (Childrens Rights
International Network or CRIN, Preda Foundation, July 28, 2005), what is deemed as a
rescue operation often ends in further risks for children found in conflict with the law:
These children in prison are frequently mixed with adult prisoners and sexually abused in
the overpacked cells. Here, 80 to a hundred prisoners squat for 24 hours taking turns at lying
down. So congested are the small cells. The heat and stench is overpowering, the food is
only a few cents a day and disease, malnutrition and tuberculosis are the daily hazard
suffered by the children.

Since the passage of Republic Act (RA) 9344, or the Juvenile Justice and Welfare Act of
2006, conditions for children in detention have somewhat improved.

RA 9344 defines a child in conflict with the law as a child who is alleged as, accused of, or
adjudged as, having committed an offense under Philippine laws.

Unicef has praised this legislative breakthrough: The passing of the Juvenile Justice and
Welfare Act of 2006 was a landmark that gave many children around the Philippines a new
lease on life. Before the law was passed, thousands of children were detained in adult jails
and treated no differently from hardened criminals. They were exposed to subhuman
conditions, not only to health hazards but also to physical and sexual abuse. Ironically,
detention was not even called for as 70 percent of the children had committed petty offenses
and 80 percent were first- time offenders.

It is, nevertheless, an ongoing concern among human-rights groups to further develop the
management of children under detention to global standards. Five years after the passage
and implementation of RA 9344, the US State Departments 2011 Country Report on
Human Rights Practices had this to say about conditions surrounding youth offenders in
detention in the Philippines:

Although prison authorities attempted to segregate children or place them in youth

detention centers, in some instances, children were not fully segregated from adult inmates.
Girls were sometimes held in the same cells as women. Lack of adequate food for minors in
jails and prisons was a concern.

From January to November [2011], Bureau of Jail Management and Penology [BJMP] and
Philippine National Police [PNP] jails held 66,825 prisoners, 95 percent of whom were
pretrial detainees. The remainder had been convicted of various crimes. Of the total number
of prisoners and detainees, 6,107 were adult women and 501 were minors. During the same
period, the BJMP released 104 minor inmates, usually in response to a court order following
a petition by the Public Attorneys Office (PAO) or the inmates private lawyer or through
NGO-led appeals.

Current trends in child crime has put RA 9344 into question.

Lowering the age of criminal liability

Last week incoming House Speaker Pantaleon D. Alvarez and Rep. Fredenil H. Castro of the
Second District of Capiz filed House Bill (HB) 002 in the newly opened 17th Congress.

Dubbed An Act Amending Republic Act 9344, As Amended by Republic Act 10630, and
Reverting the Minimum Age of Criminal Responsibility from 15 Years Old to 9 Years Old,
the amendment seeks to lower criminal liability from the current 15 years old to 9 years old.

Both representatives explained the necessity of such an amendment in their Declaration of

Policy:

It is the policy of the state to ensure that the Filipino youth shall be taught to accept
responsibility for their words and deeds as early as possible, and not to unduly pamper them
with impunity from the criminal responsibility upon reaching the age of 9 years.
In an interview with this writer in Davao City earlier this year, Alvarez mentioned the
lowering of the age of criminal liability as one of three priority legislations under the Duterte
administration.

First is federalism, Alvarez said. Then the restoration of the death penalty. Amendment
of the Pangilinan law, which is the juvenile delinquency law. These are the three laws on top
of our list. Actually, well return it to the original provision of the Revised Penal Code. It
will be discussed extensively in Congress during the committee discussion. You see, this has
been the problem of law-enforcement agencies through the years. They really complain
about this. Dont get me wrong. The objective of the law is very noble. But problems do
arise from the practical side of it.

The authors of the bill were particularly concerned about children being used by syndicates
in the commission of a crime, namely, drug trafficking.

The same was clarified and reinforced in their Explanatory Note: While the intent of
protection of the Filipino youth may be highly laudable, its effects have had the opposite
effectsthe pampering of youthful offenders who commit crimes knowing they can get
away with it.

HB 002 stands as an epilogue, should it pass muster in Congress, to a series of bills filed
years back.

As early as 2013, Party-list Reps. Irwin C. Tieng, Mariano Michael M. Velarde Jr. and Jose
L. Atienza Jr. of Buhay had filed HB 922, seeking to amend the age of criminal liability to 9
years old in the Juvenile Justice and Welfare Act of 2006.

In their Explanatory Note, they pointed to current trends in crimes involving minors. These
crimes, they said, have reached unprecedented proportions in recent years.

Recent reports show that numerous syndicates are taking advantage of the exempting
circumstance under the present law. They use minors as implements and shields to
perpetrate crime.
Technological know-how, they also said, had opened doors for these children to be better
acquainted with the world around them.

The massive influence of modern communication has brought minors immense awareness
of their surroundings, the Explanatory Note further added. Minors these days are more
mature, and their perspective in life have greatly improved as compared to minors 10 years
ago. Accordingly, it is but timely to have our laws reviewed in order to adapt to the demands
of the times.

In 2014 Rep. Gustavo S. Tambunting of the Second District of Paraaque City echoed the
same sentiment in HB 3919:

Children in conflict with the law at present grow in numbers. Sad to say, minors are getting
bolder and braver. These young people have emboldened themselves and criminal
syndicates have capitalized on the age 15 as being free of criminal liability [.] The age of
minors involved in crimes is getting younger. They are prey to unscrupulous and ruthless
criminal syndicates. This representation believes in the restorative system of justice, thus,
lowering the age of criminal responsibility.

Children on the run: A closer look at child crime

Congress seeking the lowering of the age of criminal liability is not without some merit.
Children in conflict with the law are getting younger, their numbers larger.

While statistics on growing trends in child crime are difficult to assemble, classify and
obtain, as mostly go unreported, some groups have made it their lifes work to put together
the little that can be garnered from the government and non-governmental agencies.

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 2010 CWC report, titled Situationer on Filipino Children, pegged youth offenders
profiles as usually male between the ages of 14 and 17; has low educational attainment;
belongs to large, low-earning families of six members; charged with property-related crimes;
use drugs; alcohol; and has stopped schooling.

A report by an online news bureau had quoted Ma. Raquel Tubale of the Manila Department
of Social Welfare (MDSW) that the rate of crimes involving children mostly from large but
poor families are among the highest in the districts of Manila.

In District I-Tondo, she said, some as young as 9 years old are often engaged in property-
related crimes, such as theft and robbery, a matter attributed to deprivation and poverty.

These figures were culled back in 2010. Imagine the extent and rise of these figures after six
years time.

Worse, current statistics show that not all child crimes are petty and juvenile. Children are
being jailed for crimes like rape and murder, even insurgency.

Research groups have yet to delve deeply into the problem of child soldiers. Based on the
US State Department 2011 Human Rights Report, the issue of minors in combat is an
ongoing problem that involves not only insurgent groups but the paramilitary.

During the year the New Peoples Army [NPA] reportedly targeted children for recruitment
as combatants and noncombatants. The NPA claimed it assigned persons 15 to 18 years of
age to self-defense and noncombatant 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. The May 2010 United Nations report also noted isolated cases of minors, ages 15
to 17, who were voluntarily recruited into the paramilitary Cafgu [Citizen Armed Force
Geographical Unit] entities that fall under AFP operational control. The AFP Human Rights
Office reported an incident in January of a minor inadvertently accepted for training
preparatory to appointment in a Cafgu. Upon discovery of his real age, the minors
appointment was canceled, and he was immediately reintegrated with his family.

A broader look at the problem of child crime gives us a better understanding of the situation.
Take, for instance, the
United Kingdom.

According to the Daily Mail UK, Overall, the figures from 34 of the 45 forces in the United
Kingdom collated under the Freedom of Information Act show that 5,665 crimes were
committed by children under 8 in the last four years. Alarmingly, crimes reached a four-year
high in 2014, with 1,713 recorded. Offenses included fire-raising, possession of drugs,
violence and causing racially or religiously aggravated public fear. This also comes in the
wake of revelations that a total of 154 children, aged 12 and under, were arrested for sex
crimes, including rape and sexual assault.

At this rate, England and Wales peg the criminal liability at age 10.

Will lowering the age of criminal liability solve the problem?

The question is anything but trivial. Yet, according to Circuit Trial Court Judge Gerely C.
Rico-Cruz, in a brief interview with this writer, there is reason to believe that an amendment
to Republic Act (RA) 9344 may prove effective in lessening cases of child crime.
She added that there is no intention of criminal prosecution if current provisions stated in the
bills were to be followed.

Presently, the age of exemption from criminal liability is 15 years old and below, pursuant
to Republic Act 9344, she said. Exemption from criminal liability means, given the age,
the minor cannot be prosecuted for the crimes he or she commits. Its as if he or she did not
commit a crime.

Prior to Republic Act 9344, the age of exemption from criminal liability is 9 years old and
below, pursuant to Article 12 of the Revised Penal Code. Hence, this bill being filed by
Pantaleon Alvarez is a reversion to the provision of the Revised Penal Code.

Davao del Norte First District Rep. Pantaleon D. Alvarezs House Bill 002 agrees with
Cruzs statement. It states in Section 6: Minimum age of criminal liability.A child under
9 years of age at the time of the commission of an offense shall be exempted from criminal
liability. However, such child shall be subjected to an intervention program under Section 20
of this Act [.] A child 9 years of age and above, but below eighteen (18), shall, likewise,
be exempt from criminal liability and subjected to an intervention program, unless he or she
is determined to have acted with discernment, in which case he or she shall be subjected to
the appropriate proceedings in accordance with this Act. The exemption from criminal
liability herein established does not include exemption from civil liability, which shall be
enforced in accordance with existing laws.

The way child offenders have been managed even after the passage into law of RA 9344
points to the increasing neglect of government in the work to rehabilitate and reintegrate the
child offender.

Almost a thousand minors were used in drug-related cases from 2006 to 2016,
according to a report of the Philippine Drug Enforcement Agency (PDEA) during the
Congressional briefing by the House Committee on Illegal Drugs on Wednesday.

PDEA Chief Isidro Lapea told the House Committee that a total of 982 minors were
arrested for involvement in illegal drugs from January 2006 to August 2016. He also
said from 2006 to 2009 only one incident involving a minor connected to illegal drugs
was recorded each year.
Eighteen incidences were recorded in 2011, 51 in 2013, 157 in 2014, and 278 in 2015,
and 464 so far this year. In 2010, however, seven incidences were posted.

Also read: 1.5 million-worth of party drugs seized

Rep. Robert Ace Barbers, Chairman of the House Committee on Illegal Drugs, warned
parents to watch out and prevent their children from being used as couriers and sellers
by drug pushers.

The solon from Surigao del Norte learned that during sale or procurement of shabu
street pushers and users tag along minors and give them some loose change in
exchange for carrying the drugs.

He said, "We could only surmise that drug traffickers and users use these minors to
sell, procure or distribute drugs because the police have no powers to arrest, detain
and prosecute them because of Republic Act 9344 or the Juvenile Justice and Welfare
Act of 2006."

Under Section 6 of RA 9344, (Minimum age of Criminal Responsibility) "a child 15

years of age or under at the time of the commission of the offense shall be exempt
from criminal liability. However, the child shall be subjected to an intervention program
pursuant to Section 20 of this Act.

The same law states 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, in which case, such
child shall be subjected to the appropriate proceedings in accordance with this Act."

http://cnnphilippines.com/news/2016/09/06/pdea-minors-drug-related-cases.html