On the matter of criminal responsibility for 9 year old kids

Children behind bars (Photo source: Preda Foundation, Olongapo)

By JoeAm

House Speaker Arroyo and Senate President Sotto evidently intend to sponsor legislation to allow children as young as 9 years of age to be criminally responsible in the Philippines. The current age for criminal responsibility is 15 years of age.

What are we to think of this? The arguments for it are those stern authoritarian attitudes about drugs and how young people get involved in it, either on their own or with the urging of adults. The arguments against it are the humanitarian ones that children are in no way psychologically able to accept responsibility that would see them end up in jail.

The relevant law is Republic Act 9344 or “”Juvenile Justice and Welfare Act of 2006”. The relevant section on age is Section 6, which reads as follows in its entirety:

Sec. 6. Minimum Age of Criminal Responsibility. – A child fifteen (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.

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.

The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws.

Oversight of law implementation is assigned to the Juvenile Justice and Welfare Council (JJWC) under the Department of Justice (DOJ) as outlined in Section 8. The Department of Justice is the unit that is prosecuting Senators De Lima and Trillanes on truly astounding evidence (one on the testimony of convicts and the other because an application form was lost by government). One can presume that subordinate activities of the JJWC would follow the lead of this politicized, abusive justice system.

The kids are to be jailed in facilities separate from those of adults, with regular monitoring and reports to the JJWC as to their condition. There are various provisions for bail and confinement outside of jails.

When I fired off tweets objecting to the reduction of criminal responsibility to 9 years of age, I got responses that pointed out it is common in other nations to have a similar low age, Singapore and the United States being cited as case studies.

My response is fairly simple.

  1. Have you looked at Philippine jail conditions lately, and do you believe the Philippines government displays the same level of sophistication in reading child psychology as do law enforcement, public agencies, and courts do in these other states?
  2. Second, have you read the law, and if you have, do you believe a common Filipino police officer in the street is equipped or trained to exercise the precautions and restraints outlined in this ponderous, detailed law?
  3. Are Philippine justice officials qualified to judge whether a 9 year old child acted with “discernment” as stated in the law?
  4. Is a child 9 year of age emotionally well enough developed to make “discerned” judgments by himself that consider all risks and rewards imposed by today’s society?

My answer to all four questions is a clear, unequivocal “No!” shouted at the highest decibel my powerful lungs are able to produce.

Jail conditions in the Philippines are horrid. The human rights organizations and legal organizations in the Philippines able to defend children are few, weak, and under a relentless attack from a government that does not believe in human rights. The justice system is set up to favor money and power, not poor people. It has been shown to disregard sense, laws, and fairness to pursue political and authoritarian goals. But first and foremost, kids are kids. They are not experienced enough or mature enough to discern the risks and rewards of criminal responsibility.

If (1) the Philippines cleaned up its jails, and if (2) there were certified legal assistance available to the poor, and if (3) the national government became pro-human rights, and if (4) the justice system demonstrated it is centered on facts and fairness, then, yes, lets talk about it.

Until those four conditions are met,

ARE YOU NUTS?

This law is dangerous to the most innocent of innocents, is to be deployed by a government that already ignores due process rights and does not report the facts of cases, and will most assuredly seal the Philippines as a brutal authoritarian nation that has not the least sense of humanity about it.

 

Comments
37 Responses to “On the matter of criminal responsibility for 9 year old kids”
  1. edgar lores says:

    *******
    1. I would go with the recommendation of the UN Committee on the Rights of the Child. The minimum recommended is age 12 or higher.

    1.1. Personally, I would prefer age 14. Assuming one starts kindergarten at age 5, one would be in Year 9 at age 14.

    1.2. Age 14 feels right for me. However, there is the argument that children have greater exposure to the world nowadays, grow fast, and mature earlier.

    2. Japan and China have it at 14. Canada has it at 12. Oz and New Zealand have it at 10. America also has it at 10 for federal crimes. And Singapore at 7!

    3. There should be international uniformity on this matter. A child is a child in whatever country he may be.
    *****

    • Singapore has an initiative in the works to raise the age to 10. I think it is a matter of arguing the technicalities when dealing in the Philippines, and we can be assured that compassion is the last thing on anyone’s mind. I wonder how one decides “discernment” for a kid. Emotional awareness, intellectual awareness? The US has certainly become ham-handed in the treatment of the kids of migrants. Rather horrifying. If a kid in the Philippines can get money or food for running a packet of drugs across town, what good will come from putting him in jail?

      The whole approach seems to lack sense to me. Let the big time smugglers and peddlers run free and jail the kids. Yeah. Okay.

      • edgar lores says:

        *******
        Perhaps the age of criminal responsibility should be assessed along the lines of the age of consent — which is 12 in the Philippines.

        o The age of criminal responsibility is a recognition of moral agency.
        o The age of consent is a recognition of biological agency.
        *****

    • popoy says:

      In this blog piece, WITHOUT READING anything or scrutinizing any photo of the youth of any place in the universe, I perceived a holy, divine value of the YOUTH: the YOUTH forever is the Hope of the Fatherland or the Motherland. The YOUTH is the Sacred Cow of any polity. The YOUTH is the skeleton key that opens the door for the survival of the human specie. Negative class legislation about the youth like criminalizing their misfortune is most heinous kind of juridical and political correctness.

      The youth who are down and out needs all the assistance from the state whose lifeblood comes from the taxes held up from the sweat, blood and tears of the citizens. The YOUTH is the mirror by which a society can be seen as sick or healthy in the family of nations.

      • popoy says:

        Take the YOUTH of the TOP TWENTY COUNTRIES OF UN Human Development Index, weigh the laws FOR, laws AGAINST the YOUTH, the record usage and application are probably NIGGARDLY because these top 20 countries have functional concerns for their young population.

        • popoy says:

          What is happening to the youth DEMONSTRATES the presence and level of corruption in the country. The hypothetical positive correlation between corruption (increasing) and juvenile crimes (increasing) must be tested by state funded researches in universities and social institutions,

          • popoy says:

            Meaningful SOCIAL DEVELOPMENT (increasing capacity of individuals to meet INCREASING demands from his environment, that the YOUTH may achieve his full potential) BEGINS in the home, schools, the work place which CONSTITUTE a primary responsibility of the state.

            • popoy says:

              Corrupt political, judicial and legislative systems cannot achieve cosmetic surgery and face saving by reforms focused more on powerless and disadvantaged members of the society.

              • popoy says:

                When those who rule or govern POINT an accusing finger to the population to be at fault for malaise in the society, their THREE FINGERS: the executive, the legislative and the judiciary fingers are pointing back at them to reflect the truth behind the lie.

      • “Criminalizing their misfortune . . .” Best summary I’ve read. Three words.

  2. Benjamin Polidario says:

    Yes, the Congress is becoming Nutsier and Nutsier

  3. Enough is enough! Are we to be governed by demons?

    • It is exasperating, I agree. It’s like a deaf ear toward reason and compassion. Laws are based on simplistic and bad reasoning that lacks any understanding of human esteem and emotions. This ought to be named the “Damaging our Children Law”.

      • Francis says:

        @Joeam

        Nah. This is not devoid of emotion. This is full of it. So much.

        I see a bunch of politicians (and sadly, a huge chunk of the electorate) equate “rational” with “tough guy machismo” in supporting this policy. The “real” solutions are “tough” (and “rational”). Look at me; I’m for making hard choices.

        (An aside: I find it amusing whenever conservatives hit on everyone on the left-ish side of the spectrum—from the centrist liberals to the social democrats to the socialists—as bleeding hearts. Too emotional. Bah!)

        • Agree. I was impressed that Senator Binay announced she was against the proposed law, noting that kids are not emotionally and neurologically developed until around 16 years of age. Not emotional. Not a bleeding heart. Using the strength of knowledge.

  4. The Mafia in Italy USED/S knowledge of small crimes to recruit kids in places like Palermo.

    “We know, you don’t want the cops to know”. That, and corrupt authorities nobody trusts/ed..

    “Make sure you run drugs for US, not them” might be what kids hear at precincts soon.

  5. Francis says:

    If society worked, there wouldn’t be nine year old criminals.

  6. chemrock says:

    The Juvenile Justice and Welfare Act (dated 2000 and came into force 2016) is the current legislation in Philippines that takes care of ‘juveniles’ – those aged between 15-18. Those under 15 years old are exempted from criminal liability and undergo ‘intervention’.

    The truth of the matter is the JJWA has not been poperly implemented. So here we go again with the typical idiocy of Philippines to jump from one system to another without having first adequately implemented a system, worked through its weaknesses, and then improving the inadequacies. It’s the same with EPIRA – without understanding the failure of WESM they are now calling for it’s repeal. Same with the Constitution – without understanding where the problems of the country lie (we all know it’s in the leadership), they want to switch to Federalism.

    The country’s juvenile rehabilitation and detention facilities are so terribly inadequate. I have no idea what is the capability of the country’s social intervention institutions, if there are any.

    The police and barangay authorities are abusing young offenders in ways that will horrify you. To get an idea of this, read at what social workers on the ground are saying : https://www.preda.org/world/philippine-juvenile-justice-welfare-bill-ra-9344-is-not-being-implemented/ There is absolutely no doubt reducing criminal culpability will increase police and barangay authority power to abuse several notches higher.

    We have to understand the rationale for wanting to pass this bill to reduce the age of criminal culpability to 9. Those in gated-communities are saying there are damn too many pesky filthy dirty barangay kids messing with us good wealthy folks. Lets have a law to lock them away for good measure. Folks, that’s what it’s all about.

    But of course, there has to be a cooked excuse — these kids are being used by criminal gangs, as drug runners, or petty thieves, etc. So Philippines idiocy raised their silly heads once again in the their approach to problem solving. Go after the kids instead of the criminal gangs. Just as in the beggars roving the streets — go after the beggars instead of the syndicates who put them there. Jail the petty thieve who stold a can of sardines for his hungry kids but let Revilla go with his 280 million pesos.

    The truth is those kids are arrested, they may not be charged, but they are not free. They are retained under some social intervention programs. Sometimes they are set free because there are simply no place to detain them, or ‘ransom’ or grease money has been paid. Law makers simply refuse to see the reality and the money-making business behind the problems.

    • Francis says:

      Exactly.

      People sell this a bill to instill “discipline.” Nah. It looks like a society taking the opposite way out—a society lacking enough collective discipline that it has to resort to band-aid/superficial solutions that only alleviate (even then, somewhat or barely) the pettiest symptoms.

      In short, a bulakbol and ningas kugon of a solution to a serious multifacted problem.

      • madlanglupa says:

        > People sell this a bill to instill “discipline.”

        This and the National Youth Commission wanting to resurrect youth “discipline” measures. There are also people who want to kill bored urchins throwing things at cars and trains.

  7. chemrock says:

    As Singapore has been mentioned of having a criminal culpability age of 7, I like to take the opportunity of showing some clarity before anyone reels in horror without understanding. (A current review is ongoing to increase the age to 12 in line with international norms).

    In any judicial system, there are 4 considerations when it comes to sentencing — restitution, deterrence, protection of public safety and rehabilitation. This is the same for both adults and juveniles.

    When it comes to young offenders, foremost consideration is rehabilitation because they are in their formative years so they stand a better chance for reform. In Spore, the recidivism rate is 20% (ie, only 2 out of 10 are likely to resort to their criminal ways after their release). This attest to the success of rehabilitation programmes. I doubt Philippines has any such statistics to guide them in policy making.

    Retribution in criminal justice is the punishment that befits a crime. This differs from exacting revenge. Retribution requires the offender to give up something (often times it’s their freedom). The dominant consideration for retribution is culpability. Setting an age limit to define culpability is a very tricky thing. In Singapore for example, a person above 7 may be charged in court, yet he is not considered a legally capable person till age 18 (under Civil Law Act – when he has contractual capabilities), and yet again he is entitled to vote only at age 21. What it means here is we are toying with the idea that a person has the capability to comprehend certain things at certain age. A further tricky matter is when does the age compute? In Spore, the age is when the case is heard in court, not at the time of offence. So an offender may be a juvenile at the time of offence, but an adult when his case goes to trial. This will be of enormous problem in Philippines where the wheels of justice grinds excruciatingly slow.

    The crux of the matter is the court has to decide on whether the young offender has sufficient maturity of understanding the nature and consequence of his act. A juvenile can easily understand it is wrong to steal, but can he understand it is wrong to be a ‘look-out’ for a gang, or to deliver an unknown package for somebody, or to distract somebody’s attention, or how he was mis-lead, heck how will a 9 year old kid know what is right or wrong if his boss is a policeman, etc. So it boils down to the method for the court to reach its decision. Do we simply base on age, or do we allow the court discretionary powers to make its decision as it prudently can. Purely based on age to decide culpability paves the way for a robotic chop-chop judicial process, things move faster. Depending on the court’s discretion on case-by-case basis takes time. In Spore, court’s discretion is the final say.

    The question is does the proposed legislation in Philippines contain sufficient protection for the juvenile as to whether he/she has attained sufficient maturity as to the nature of the offence. In Singapore, the Penal Code offers such a protection.

    Whilst manly countries have an age limit for criminal culpability, the worldview is that it is mainly a guideline.

    In Singapore, the philosophy behind age for criminal culpability is RESTORATIVE JUSTICE — one that seeks to balance the need for effective deterrence versus the need for rehabilitation and restoration.

    Singapore Youth Courts are mindful of issues of public protection and personal accountability in handling juvenile cases and sentencing takes into consideration :
    – the individual strengths and limitations of the youths
    – welfare of the youths
    – removing them from undesirable surrounding
    – provision for their education and training
    – parents are afforded an important role to play in the reform of the youth, they are provided the opportunity to take responsibility for their child’s behaviour. They are also empowered to play a greater role in the rehabilitation of the youth.
    – a communitarian approach to the treatment of youth offender – family conferencing, boot camps, peer group advisers, family care conferencing
    – enlist the support and assistance of the community in reforming and rehabilitating the youth offender.

    In Youth Courts, the youths are made accountable for their offending behaviour/misbehaviour and will then take the responsibility for the consequences of that behaviour by making reparations to society, whether by way of community work, or by way of restitution, compensation and apology to the victim. Where appropriate, the youths are made to confront the victim to make them aware of the harm caused by their offending act.

    Many youth crimes are the result of dysfunctional families. In Singapore, we nip youth crimes in the bud through the work of a Ministry Committee on Dysfunctional Families, Youth Delinquency and Drug Abuse. Where do data for such families come from? From school reports, neighbours’ complains, minor skirmishes reported to police, minor altercations reported, police patrols checking on street corner groups, etc.

    We can never rely alone on laws and punishment to meet the challenge of youth crime. In Singapore, we depend on a holistic approach that includes effective family support and control, community assistance, many social support services and institutions. And lastly, a youth offender has his records expugned after a certain number of years so that he has a clean plate to rebuild his life.

    • chemrock says:

      Addendum
      The Youth Courts hear cases of juveniles ages between 7 to 18.
      No young offenders go to prison. They go to special youth detention centers. The first few months take on a punitive mode, the length depends on their sentence. After that period, they go into reformative mode where the detention is more relaxed and the youths are streamed into relevant skills training or continue with their academic schooling within the detention center. They received much counselling, reformative education, social works and lots of recreational and social activities generally. Nobody gets caned for sure.

      • isk says:

        The Singapore model in handling juvenile offenders is quite impressive. These legislators could have done more thorough research before crafting laws.

        Thanks for the info Mr. Chemrock.

    • edgar lores says:

      *******
      Chemrock, thanks for the detailed exposition.

      It is a working justice system and not a dysfunctional one as we have in the Philippines.
      *****

  8. karlgarcia says:

    Most if not all laws started with good drafts, but deteriorate as it progresses due to one or some. congressmen opposing because of some lobby or pressure own-interest groups then if not contented it will be compromised in the bicameral conference.

    But this particular law reading the explanatory notes of the likes of Sotto started with bad intentions.

  9. madlanglupa says:

    So, who now is the puppet and the puppet-master?

  10. Andres 2018. says:

    JJWA of 2006: Minors below 15 years of age are exempted from criminal liability.

    Case: 3 male high school students aging 14 years gang rape their 14 year old female classmate.

    Question: What kind of justice can this 14 year old female have?

    I am in favor of lowering the age of criminal liability and criminal responsibility to 12 years, provided, the crimes committed are of serious degree.

    • chemrock says:

      Andres
      My earlier reaction was very much against this reduction of criminal culpability to 9 years old. However, my position has changed.

      My reason :
      JJWA 2006 contained only one short section pertaining to treatment of children in conflict with the law who are under 15 years old. They are released to parents, or relatives, or social welfare agencies, etc and entered into a preventive programme. There is no restitution nor punitive programme. Age limit is never meant to be a free-ride to impunity. JJWA 2006 in it’s present form, is grossly inequitable.

      You either have a high age limit like JJWA 2006 and expend on the treatment of those below 15 to incorporate punitive, restitution and rehabilitating, which is sorely lacking in Philippines,

      OR reduce age limit but make sure adequate protection parameters are in place and well regulated.

      My fear is that in Philippines
      – children under police custody suffers a lot of human rights abuse. The reduction of the age to 9 will see a groundswell of abuse. The damage to those 9-15 will be tremendous and it’s terrible when we consider most of their crimes will be petty in nature.
      – The rehabilitation efforts are extremely weak in Philippines. No facilities, no trained personnel, nobody cares. The damage done to these kids will come to haunt the country 10 years later.

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