Protection of children goes beyond age-cut offs

The move to lower the minimum age of criminal responsibility (MACR) represents an attempt on the part of the country’s leaders to allay fears of a breakdown in peace and order and the threat posed by the perceived proliferation of child criminals.

Thus, when human rights advocates vehemently objected to setting the MACR to nine, the House of Representatives’ quick fix was to increase the age cutoff from nine to 12.  It seems that the raucous debate has mainly focused on age cutoffs. 

Yet, the discourse has been pursued under the rubric of juvenile justice and welfare, as the change in MACR will be an amendment to the current laws on juvenile justice. 

The debate on the street has traversed various considerations—history, statistics, implementation issues, theories of criminal law, international conventions and practice. 

Ultimately, the litmus test is whether that controversial change will be relevant to the cause of protecting the rights of, and seeking justice for, “children caught in the law,” children who are alleged as, accused of, or adjudged as, having committed an offense under the law. 

Whether it is Dicken’s Oliver Twist or Rizal’s “pag-asa ng bayan,” the youth deserve protection from adults rather than getting kicked by them when they are down. 

Statistics

Whatever MACR will be set when the debates are over, we are faced with the realities of juvenile delinquency in the Philippines. 

On one hand, data of the Philippine National Police (PNP) indicate that 98% of crimes are committed by adults, not by children. 

Nevertheless, between 2012 and 2016, the number of children handled by the Philippine National Police (PNP) grew by 230%, from 4,095 to 9,655 incidents. 

From January to June 2017, 45% of the children handled by the PNP were aged 15 or below.

Between 2012 and 2015 the top five reported offences by children according to the PNP were theft (49%), physical injuries (22%), robbery (9%), rape (7%) and violation of Comprehensive Dangerous Drugs Act (3%).  

History

The Revised Penal Code, which was enacted in 1930, exempted from criminal liability persons under nine, and persons over nine but under 15, unless the person acted with discernment. 

Prior to 1980, jurisdiction over cases involving juveniles were vested in juvenile and domestic relations courts. 

When the Judiciary Reorganization Act was enacted in 1980, juvenile and domestic relations courts were abolished so that child offenders went through the same proceedings as adults. 

The Juvenile Justice and Welfare Act (Juvenile Act) increased the age of criminal liability to 15 and created mechanisms and programs for intervention, diversion, and rehabilitation of “children in conflict with the law.”

Implementation Issues

Advocates question how the proposed decrease in the MACR will deliver the desired protection of society from children in conflict with the law.  

Those pushing for increasing the MACR often omit to state that even under current laws, a child who is above 12 years but 15 years or below and commits serious crimes (including but not limited to parricide, murder, infanticide, rape, arson, kidnapping and serious illegal detention where the victim is killed or raped, robbery, or offenses under the Comprehensive Dangerous Drugs Act) will be mandatorily placed in a youth care facility referred to as bahay pag-asa.

Thus, while the current Juvenile Act, in fact, increased the MACR to 15, it does not mean that children who commit serious crimes are let go scot-free. 

In fact, the Juvenile Act contemplates and provides, among other things, the mandatory placement of those children in a youth care facility.

In addition, the Juvenile Act provides for a juvenile intervention program, diversion from formal court proceedings, confidentiality, and rehabilitation and integration (including the establishment of agricultural camps and training facilities and rehabilitation centers) of children in conflict with the law. 

However, observers note that these programs and mechanisms have not been fully implemented. Among other things, there are reportedly only 58 youth care facilities in the country, and the adequacy of the existing facilities in terms of reforming (as opposed to just incarcerating) juvenile delinquents is also in question.

Theories of Criminal Law

Those who are pushing for the decrease in the MACR seem to focus on the need to protect the public from risks of having child-convicts roaming the streets. 

However, while the placement in those facilities or the incarceration of child offenders may provide a perceived protection for the time being, the purported remedy does not consider the reality of the juvenile delinquent being eventually released back to society at large.  If not properly reformed, as envisioned, what are the chances that the ex-convict will return to society as model citizens?

International Convention and Practice

There are in fact countries where the MACR is lower than 12, including Australia (10), New Zealand (10), Switzerland (10), India (7), Indonesia (8), and Singapore (7).  In the United States, over 30 states set no MACR, and for federal crimes, the minimum age of criminal responsibility is 11. 

Nevertheless, human rights advocates oppose the proposed lowering of the MACR based in part on the United Nations Convention on the Rights of the Child, which provides that: “No one is allowed to punish children in a cruel or harmful way. Children who break the law should not be treated cruelly. They should not be put in prison with adults.” 

Simply put, the issue is not confined to age cut-offs.  Even assuming that there are countries where the MACR is law, comparisons with those countries are more appropriately focused on the juvenile welfare systems in those countries, mechanisms under those systems, and the successful implementation thereof. 

Other Proposed Amendments

With unresolved issues surrounding the implementation of current juvenile laws, the lawmakers propose further measures, including the lowering of penalties imposed on children compared to the penalties for adult offenders, criminal liability for exploiters of children caught in conflict with the law, the increased role of the Department of Social Work and Development in the establishment of “bahay-pagasas” and other facilities.

Quo Vadis?

The increase of the proposed MACR from 9 to 12 is supposed to be the happy compromise.  However, under the rubric of juvenile justice and welfare, the fate of juvenile delinquents depends on the success of the programs and mechanisms intended to advance the interests of children in conflict with the law as a means to achieving peace and order in society.  

To be sure, the decrease of the MACR from the current level of 15  to the proposed age of 12, potentially increases the pool of juvenile delinquents who will continue to test the mechanisms put in place under current laws.  

While lawmakers purport to add layers of mechanisms to the juvenile justice systems, these added layers will not make up for the implementation issues that have stifled the intent and design of the current laws, nor the deficiencies in the current mechanisms that may, perhaps, deserve better focus – than adding “bells and whistles” to the current mechanisms and debating age cut offs.

Albert Yu Chang is the author of several articles on financial and international law. He is the current associate editor of the International Law News of the American Bar Association and was an editor-in-chief of El Ponente, the official student newspaper of the Ateneo De Manila University School of Law. He is a partner at Gatmaytan Yap Patacsil Gutierrez and Protacio Law.