Clarisse B.

Cerame September 27, 2019

Lowering the Minimum age of Criminal Liability

One of the most controversial issues in the country today is the lowering of
the minimum age of criminal responsibility. The legislature seeks to lower the
minimum age of criminal responsibility from fifteen to twelve. This subjected to
various opinions and instigating much debate regarding the issue of the
government’s proposition to lower the age of criminal liability. 
Recently, January 22, 2019, The House Justice Committee approved house
bill 8858 which overviews the implementation of children aged 12 to below 15 will
face criminal charges if they are found guilty of committing serious crimes including
kidnapping, murder, parricide, and serious illegal detention. Lawmakers in the senate
of house representatives have pushed for the history’s proven measure to lower
criminal responsibility.
House Bill No. 8858, otherwise known as “An Act Expanding the Scope of the
Reformation and Rehabilitation of Children in Conflict with the Law and
Strengthening the Social Reintegration Programs. The most critical and controversial
provision in House Bill 8858 (and this also applies to the above-mentioned Senate
bills) is the provision (HB Section 4) amending the current law, by lowering the
minimum age of responsibility of children in conflict with the law from the current 15
years of age to 12 years of age. Further, HB Section 2 states that a child 12 years of
age and above but below 18 years of age “who has acted with discernment…shall
be subjected to the appropriate intervention and diversion proceedings...”
           The standard dictionary definition of discernment is: “The act or process of
exhibiting keen insight and good judgment.” The capability to discern thus goes
beyond having access to full information and being rational. Discernment requires
intellectual, psychological, and emotional maturity, which is a challenge to children
and adolescents. However, Section 22 of the existing law, which House Bill 8858
retains, is vague in its definition and determination of discernment, except to say that
“the local social welfare and development officer shall conduct an initial assessment
to determine the appropriate interventions and whether the child acted with
discernment, using the discernment assessment tools developed by the DSWD”
[Department of Social Welfare and Development]. Section 8 of House Bill No. 8858
seeks to add context through an amendment to “include identification of physical and
mental health issues, substance abuse and family issues” in the assessment,
although it is unclear if the presence of these issues will be considered as mitigating
circumstances in determining the child’s discernment.
More recently, the Philippine Pediatric Society states in its position paper
(undated) that: “Neuroscience research has proven that the brain does not fully
develop until the age of 25.” Discernment between right and wrong requires
intellectual, emotional, and psychological maturity. This is a tall order for children
who are still in the process of developing in all aspects,” the Philippine Pediatric
Society (PPS) said. “Younger children, therefore, need protection from the law and
should not be held criminally responsible for their actions.” And according to the
Psychological Association of the Philippines (PAP), this means that changes in areas
of the brain, which are responsible for impulse control, decision-making, regulating
emotions, and evaluating risks and rewards are still taking place. Unlike adults,
children are less able to consider and understand the long-term consequences of
their actions.
This is the kind of evidence that informs the current legislation titled Juvenile
Justice and Welfare Act of 2006 or Republic Act (RA) No. 9344, which states that a
“child fifteen (15) years of age or under shall be exempt from criminal liability.”
Further, RA No. 9344 says 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 addition, The proposed provisions in the New Criminal Code – Book I do
not conform with international laws. Philippines is a State Party to the United Nations
Convention on the Rights of the Child (UNCRC) and other international treaties
promoting and protecting children’s rights. Then, the Philippines has obliged itself to
respond to children in conflict with the law, in accordance with these treaties, to
effectively serve the best interests of children and, in the short and long term, the
interest of the society,
Some quarters will point out that the United Nations Convention on the Rights
of the Child General Comment No. 10 (UN CRC GC 10) considers the minimum age
of criminal responsibility below the age of 12 years as “internationally acceptable.”
But in the same breath (paragraph 32), it says: “States parties are encouraged to
increase their minimum age of criminal responsibility…to a higher level.” Moreover,
in paragraph 33, the UN CRC GC 10 “urges States parties not to lower their
minimum age of criminal responsibility to the age of 12.” Hence, reducing the
minimum age of criminal responsibility in the Philippines from the present age of 15
years old to the age of 12 years old is a serious retrogression. House Bill 8858 and
Senate Bills 1603 and 2026 ignore the evidence drawn from the specific Philippine
context and neuroscience research, and they violate the spirit of the international
convention.
Examples abound. One cannot get married if he or she is under the age of 18
years old. And one must be at least 21 years old to get married without parental
consent. A requirement for voting is that the citizen should be 18 years of age and
above. The minimum legal age is 18 years old for any person to buy, sell, or smoke
tobacco and alcohol products. In a word, the age of 18 years is the age of majority in
the Philippines. In short, House Bill 8858 and Senate Bills 1603 and 2026 contradict
the intent and substance of other pieces of legislation that govern the behavior of
adolescents.
Some make the fuss that House Bill 8858 and Senate Bills 1603 and 2026
distinguish the treatment as between adults and adolescents (from 12 years of age
to below 18 years of age). Adolescent offenders who commit serious crimes will be
placed mandatorily within a youth care facility or Bahay Pag-asa, while adolescent
repeat offenders (not necessarily of serious crimes) shall undergo an “intensive
intervention program” that includes placement in a youth care facility or Bahay Pag-
asa (Sections 4 and 5 of HB 8858). By definition, the physical mobility of residents of
these centers may be restricted pending court disposition of charges against them
(Sections 4.s and 4.t of RA 9344). The existing law allows the imprisonment of not
more than 12 years (as a maximum penalty) but also authorizes institutional care
and custody as part of a court-level diversion program (Sections 37 and 31.c.5
respectively of RA 9344).
Compounding the problem is the lack of Bahay Pag-asa facilities. According
to the Juvenile Justice and Welfare Council (JJWC), only 35 of the 114 (the
mandated number) Bahay Pag-asa facilities are fully operational. This means that a
significant number of the detained juveniles will have to be transferred to prisons
occupied by adult convicts. Accounts also reveal that some of the Bahay Pag-asa
centers are “worse than prisons.” The Executive Director of JJWC told Philippine
Star (January 29, 2019) that some of the facilities have “subhuman
conditions.” According to Human Rights Watch, visits to a Bahay Pag-asa in Manila
showed the facility was poorly run and maintained. "Water from the toilet leaked to
the floors where dozens of children were sleeping, rust-covered fenced cages in
which children were locked up throughout the day, ventilation was poor, and many of
the children had clear signs of skin infections, suggesting poor diet and sanitation,"
Here, we can infer that politicians in local government units have a weak
commitment to improving the infrastructure and service of Bahay Pagasa. The
incentive is weak because the children in the Bahay Pag-asa, after all, do not vote,
and their families are disempowered.
In conclusion, if we are going to put these children in conflict with the law into
the cell, nobody will accept them in any job or if there is, very few after they served
their sentence. Their life will be wasted at 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. The
evidence and the science, together with the application, tell us that the bills’
controversial measures will result in worse outcomes for our children and our
society. Similarly, while the law is supposed to result in providing the most benefits
for society, the minimum necessary condition is to ensure that the law will cause the
least harm to our people. In this context, the Juvenile Justice and Welfare Act of
2006, despite its flaws, is an improvement, and it causes the least harm in
comparison to House Bill 8858 and the pending bills in the Senate. We instead urge
our legislators to affirm the implementation of the Juvenile Justice and Welfare Act of
2006 and seek ways to improve its practice by emphasizing restorative, not punitive,
justice.
What we seek, to quote the Senator Kiko Pangilinan is “Focus on 98% crimes by
criminal syndicates, not 2% by minors:” – 21 January 2019
References:

ABS CBN News (2019). OPINION: Position Paper of the UP School of Economics
Alumni on bills lowering the minimum age of criminal responsibility Retrieved from:
https://news.abs-cbn.com/focus/02/01/19/opinion-position-paper-of-the-up-
school-of-economics-alumni-on-bills-lowering-the-minimum-age-of-criminal-
responsibility

UNICEF (2019). Lowering the age of criminal responsibility is against child rights:
UNICEF Retrieved from: https://www.unicef.org/philippines/press-
releases/lowering-age-criminal-responsibility-against-child-rights-unicef

Press Release (2019). Villanueva: Lowering Age of Criminal Responsibility Will Not
Solve Problem of Juvenile Delinquents Retrieved from:
http://www.senate.gov.ph/press_release/2019/0122_villanueva1.asp

Press Release (2019).On lowering the age of criminal liability of minor children to 9
years old Retrieved from:
https://www.senate.gov.ph/press_release/2019/0121_pangilinan1.asp

Camille A. (2019) Senate report pegs criminal liability at 12 Retrieved from: