Press Release
February 4, 2019


February 04, 2019

Children have always enjoyed a favored position before the law. The Philippine Constitution in Article XV, Sec. 2 states that, "(t)he State shall defend the "right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development." Under international law, in the United Nations Convention on the Rights of the Child, it is stated that "(i)n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

It is against this solid policy and legal framework that any proposal involving children, their rights, and their well-being, must be examined.

It is also on the basis of this policy and legal framework that I, as member of the Committee on Justice and Human Rights and as Chairperson of the Committee on Women, Children, Family Relations and Gender Equality, submit my dissenting vote to Senate Bill No. 2198/ Committee Report No. 622 otherwise known as "An Act Strengthening the Youth Social Welfare Programs and Extending the Scope of Reformation and Rehabilitation of Children in Conflict with the Law, Amending for the Purpose Republic Act No. 9344, as amended, Otherwise Known as the Juvenile Justice and Welfare Act of 2006, and other related laws, appropriating funds therefor, and for other purposes" (hereafter, Committee Report).

While I reserve my right to interpellate on and propose amendments to the bill, my objection is predicated mainly on Section 14 of the Committee Report, amending Section 6 of Republic Act No. 9344, to wit:

Sec. 6. Minimum Age of Criminal Responsibility. - A child [fifteen (15)] BELOW TWELVE (12) 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.

A child is deemed to be [fifteen (15) TWELVE (12) years of age on the day of the [fifteenth] TWELFTH anniversary [his/her] THE CHILD'S birthdate.

A child [above fifteen (15)] TWELVE (121) years OF AGE AND ABOVE but below eighteen (18) years of age shall likewise be exempt from [criminal] liability and be subjected to an intervention program unless [he/she] THE CHILD has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. xx

The breadth of scientific evidence is against lowering MACR.

The evidence against lowering the minimum age of criminal responsibility is sound, well-documented, persuasive and overwhelming.

For criminal justice systems all over the world, determination of criminal liability rests on the notion of discernment. As defined in the "Rule on Juveniles in Conflict with the Law", discernment is "the mental capacity to understand the difference between right and wrong and its consequences." Evidence derived from numerous and exhaustive scientific research on child and adolescent development revealed that children differ from adults in decision-making, control of their impulses, identity development and overall maturity.

Studies have shown that the brain of children and adolescents is still in the process of development. An expert witness during the first Committee hearing also pointed out to scientific findings that established that brain development continues to progress well into early adulthood. Anatomically, the pre-frontal region of the brain and its corresponding brain activity continue to undergo significant changes. This region of the brain is responsible for impulse control, decision-making, long-term planning, regulating emotions, and evaluating risks and rewards. The physiological immaturity of the brain around puberty may stimulate adolescents to crave higher levels of novelty and engage in more risk-taking behavior.

Also, compared to adults the decision-making capacities of a child or adolescent is diminished by their psychosocial immaturity. Their limited exposure to life experiences deprive them of the facility to contemplate and think through the future implications of their choices. This psychosocial immaturity also leads to a marked difference between an adult and children/adolescents on how the latter would respond to external pressures as they easily succumb to peer pressure and give in to impulsiveness.

Specific to the Philippines, as earlier cited, in a research conducted by the University Research Center of the Pamantasan ng Lungsod ng Maynila entitled, "Beyond Innocence: A Study on the Age of Discernment of Filipino Children" where age of discernment is operationalized to mean "the specific age level during which an individual is able to demonstrate a pattern of reasoning that generally conforms with what are conventionally acceptable", the age of discernment of Filipino children has been identified at 15 years old. It has been determined that at this age, the Filipino child has had enough experience of the world to develop logical thoughts that will help her/him facilitate the formulation of hypotheses and examine abstract ideas. Confirming this, the Psychological Association of the Philippines, in their strong opposition to the lowering of the minimum age of criminal responsibility points out that while adolescence might be a time when a significant number of minors would engage in some form of delinquent behavior, they have not established a "criminal identity" and would eventually outgrow them. It is the exposure to pervasive personal and environmental risk factors over time that would construct criminal behavior.

All told, scientific studies and evidence-based assertions by psychologists and child development experts shine a bright and illuminating spotlight on the issue of the lack of discernment of children and adolescents. This puts into question the logical claims behind the proposal to lower the minimum age of criminal responsibility to 12 years old. Considering that the brain of a child is still in its developing stages, and therefore discernment cannot truly be established, lowering the MACR and ascribing criminal liability to children not only ignores arguments that stand on solid scientific ground but -- as the issue involves children, who count among the most vulnerable in society - is morally objectionable.

Institutionalization and stigmatization are not the way forward.

Secondly, C.R. No. 622 shifts the policy framework of the government for CICLs from rehabilitation and restorative justice to institutionalization and stigmatization. Proponents of the measure say that there is no imprisonment contemplated for CICL, even under a new regime of lowered MACR. We beg to differ. For example, section 16 of C.R. No. 622 amends Section 20(a) of R.A. 9344 and casts children from 12 years old to 18 years old to a "Juvenile Reformatory Center" for not less than one year. While proponents may argue that this is only for serious crimes committed by children, we can very well contemplate a situation where a child as young as 12 years old is used by criminal syndicates, is subsequently charged a co-conspirator by the courts of law, and, since 'the crime of one is the crime of all', will be convicted for a serious crime. That child will then be institutionalized in the Juvenile Reformatory Center.

There is sufficient evidence to support the myriad problems of institutionalization compared to other alternative responses. The stigmatization and isolation brought upon by the impact of incarceration can lead to a decline in a child's psychological and social functioning. Exposing children to institutionalized responses and harsh sanctions may also have iatrogenic effects on their emotional and mental health. Negative effects will be severe the longer a child stays in an institution where conditions are poor. These effects can include higher rates of suicide idealization, depression, and risks of self-harm.

As adolescents are experiencing a period of social context development, exposure to criminogenic environments may embed patterns of criminal behavior. Factors such as the lack (or availability) of skill building, delinquent peer influences, positive role models, and rehabilitative programs may affect the propensity of the juvenile to persist in unlawful activities. Given that these children will eventually be released back to the community, it is vital for them to have a successful development into adulthood. The labeling of "delinquent" in itself, may enhance the child's reputation of a juvenile in their community. Together with a formal adjudication for their offense, others will tend to label the child as a criminal deviant.

An adolescent's incarceration and their passage through the juvenile justice system may have a damaging effect on their own sense of goals, accomplishments and their competence as a member of society. Aside from the possible marginalization by family and peers, a community's recrimination on a child is theorized to have economic and educational losses. Once incarcerated, the likelihood for a youth to complete their education is reduced as they will face challenges returning to school after leaving detention. It logically follows that a youth's employment opportunities will also be compromised once their educational attainment is disrupted. Their employment prospects will be undermined following the adverse effects of their incarceration. Further, stigma inevitably attaches to a person whenever he or she is deemed to have criminal responsibility and made to undergo the criminal justice system especially when the person in question is detained. Often, the common perception of detention immediately implies fault on the detainee, as opposed to the presumption of innocence. The same stigma attaches to a child made to face the criminal justice system. In fact, it is worse for children; the stigma is bound to affect the child's prospects of intellectual or economic advancement. The acts of the child at such an age would be rooted in a brain that studies have shown is not fully developed until no earlier than 20 years of age.

The added cost to the state outweigh the perceived benefits in crime reduction

Proponents of the measure suggest that criminality among young people is the rationale for the measure. The data, however, demonstrate otherwise. Crimes committed by CICL are only around 1.7% of total number of crimes. The rate of crimes committed by children 12 years old to below 15 years old (or the primary population to be affected by the wider net cast by a lowered MACR) is even lower.

But even though they make up a minuscule percentage of crime, this wider net cast on children means a greater impact on state resources. The increase of the number of CICL means that the budgetary requirement to maintain and rehabilitate them would likewise grow.

The operational cost of a Bahay Pag-asa per year with fifty (50) residents is twelve million six hundred eighteen thousand four hundred thirty-four pesos (P12,618,434.00). But for those areas without a constructed BPA, an additional fifteen million pesos (P15,000,000) is needed to cover the cost of construction. To complete the required 114 BPAs, the total estimated cost of their construction and operation is two billion two hundred seventy-three million five hundred one thousand four hundred seventy-six pesos (P2,273,501,476.00). But with the expected increase in the number of CICLs, there will be a need for additional BPAs than what was initially mandated. Also, these amounts are yet to include the proposed establishment of the Juvenile Reformatory Centers, and other budgetary necessities should the proposed bill be passed into law. The JJWC estimates that it will cost six billion two hundred ninety-seven million two thousand nine hundred fifty-two pesos (P6,297,002,952.00).

On the other hand, the cost of community-based intervention programs is lower compared to that of Bahay Pag-asa (BPA). With fifty (50) children undergoing community-based intervention plus Personnel salary, the total amount comes around to two million eight hundred sixty-five nine hundred eighty thousand (P2,865,980.00).

While it is true that the government is capable of covering whatever amount is needed for the operation of these juvenile centers, we also have to take into account that it is public money being used, therefore it is expected to be spent judiciously. Records have shown the efficacy of well-implemented community-based programs, and making it work for many other areas would not only be financially prudent but more importantly, its positive impact is readily felt by CICLs, their family, and the community.

Full and effective implementation of the JJWA is the most viable and productive response to juvenile delinquency.

In 2006, the Philippines passed R.A. No. 9344, or the Juvenile Justice and Welfare Act (JJWA), a landmark piece of legislation founded on the principles of restorative justice and the best interests of the child, that seeks to address issues related to children in conflict with the law (CICL), and to protect those who are at risk of falling wayward of the law. This Act created a comprehensive juvenile justice system that is child-oriented, and takes into consideration the accountability of the child by submitting her/him to intervention programs and other alternative processes that allow the child to meaningfully comprehend the full implication of her/his actions. The law puts emphasis on prevention and rehabilitation, and drawing the child away from a future life of crime. Importantly, the JJWA increased the age of minimum criminal responsibility to fifteen years old, consistent with recommendations of the United Nations and evidence-based prescriptions on the age of discernment.

Since its enactment in 2006, the JJWA clearly has not enjoyed the full support of government. The Juvenile Justice and Welfare Council (JJWC) was not fully constituted up until 2015, almost ten years after the law was passed. This fact is crucial since the JJWC is the policy-making body assigned to coordinate and monitor the implementation of the law. The law also directs the establishment of the Regional Juvenile Justice and Welfare Committees (RJJWC) to make sure it is being implemented in the level of the region and in LGUs.

Compliance by local government units (LGU) is low. Of the ideal number of 118 Bahay Pag-asa (BPA), which LGUs in highly urbanized cities and provinces are supposed to establish and manage, only 63 have been built. And of that number, only 58 are operational with 3 BPAs managed by non-government organizations. Only 13% of the operational BPAs are accredited by the Department of Social Welfare and Development (DSWD). CALABARZON, with 17 has the highest number of BPAs while Region 1 has the least at 1. NCR has 8, and most of the others have 2, 3 or 4.

The law also mandates that local governments appoint a licensed social worker devoted to assisting CICLs. However, only three percent (3%) of LGUs have designated a social worker who handles not only casework on children but of other social work tasks that the LGU assigns. What generally hampers their recruitment are the lack of funds and the shortage in licensed social workers. The absence of social workers creates a gap in the implementation of standard procedures. Within 8 hours upon being apprehended, the police are obligated to release the CICL if no social worker is available to manage the case. Under such circumstances, the child is released without any form of intervention, which is not what the law intended. This is also the reason why there is a general misconception that CICLs are not being made accountable for their misdeeds.

Local government units are also required to allocate at least 1% of their Internal Revenue Allotment (IRA) to the strengthening of the Local Council for the Protection of Children (LCPC). The role played by the LCPC is crucial in ensuring that the Local Development and Investment Plan of LGUs include a comprehensive package of intervention programs that will address juvenile delinquency in their area of jurisdiction. Low compliance likewise plague this aspect of the law. Only 1/3 or 33% of LGUs have such budget allocation.

The JJWA directs LGUs to adopt and implement a Comprehensive Local Juvenile Intervention Program (CLJIP), a package of intervention programs that is designed to promote the physical and social well-being of children by targeting the prevention of juvenile delinquency, and by discouraging recidivism. For the last 3 years, 20,736 or 47% of LGUs, from barangay to the provincial level have been provided with technical assistance by the JJWC in crafting their CLJIPs.

In a study of four diverse JJWA sites (Quezon City, Zamboanga City, Bobon in Northern Samar, and Aroroy, Masbate) done by the Philippine Legislators' Committee on Population and Development, the Ateneo Human Rights Center, and UNICEF in 2016 the most conspicuous gaps were identified to be in "Structures and Functions" and "Capacities and Resources." In both the national and local levels, the identified challenges were mostly in capacities and resources, particularly in the small number of technical staff, and the limited technical capacities and knowledge of personnel in the local level.

The issue of funding cuts across both national and local levels but is more complex with LGUs since part of the consideration is their capacity to implement "bottom-up budgeting, handle situational analysis, and conduct results-based planning and management using a child-friendly governance lens."

If there is anything that all of these data and facts prove is that the implementation of the JJWA has been inadequate and far from being exhausted. Much has to be done to maximize the potential of a law that has earned praises from many in the international, and children's and human rights community. It is therefore incumbent upon us to ensure that it has the State's support by way of providing it with all the resources it requires. Without first seeing through the promise that this law brings, shaking an important foundation on which the JJWA stands by lowering the MACR is imprudent and dangerous.

As a final word, as state party to the most widely ratified international human rights instrument, the UN Convention on the Rights of a Child (UN CRC), the Philippines made a commitment to put the best interest of the child in the forefront of policy and practice. The passage of the JJWA is a testament to that commitment, particularly in response to Article 40(3)(a) that says, 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, ... [t]he establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.". After ratifying this UN Convention in 1990, it took us another 16 years to pass the JJWA. Now, 12 years hence, a short period considering, we are trying disable a very critical element of the law.

The MACR serves as a key component of the juvenile justice system. In recognition of the fact that children are still emotionally, mentally, and intellectually immature, the UN CRC Committee on the Rights of the Child, in its General Comment No. 10 urges States signatories not fix their initial MACR too low, and for those who are in the acceptable levels not to lower their MACR to the age of twelve (12), which is the absolute minimum age. In our case, this is exactly what we are defying.

For these reasons, and in reaffirmation of my personal commitment to the Filipino child, I respectfully dissent.

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