GIVING LEGAL ADVICE

TO CHILDREN IN
CONFLICT WITH THE
LAW

Submitted by:

MARDERS, Elaine Antonette

In partial fulfillment for the requirements in Legal Counseling and Social

Responsibility

Submitted to:

Atty. Erik Lazo

 GIVING LEGAL ADVICE TO CHILDREN IN CONFLICT
WITH THE LAW
I. Abstract

This study investigates how legal advice is given to Children in Conflict

with the Law (CICL) in the Philippines. The youth, being one of the pillars
of our nation, and recognized by the 1987 Constitution which states that
“The State recognizes the vital role of children and youth in nation building
and shall promote and protect their physical, moral, spiritual, intellectual and
social well-being. It shall inculcate in the youth patriotism and nationalism,
and encourage their involvement in public and civic affairs.1” Furthermore,
the State shall defend the right of the 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.2
The Constitution recognizes the maturity and potential of the youth, hence it
aims to create a path for the future generation. However, youth are likely to
adopt delinquent acts due to their childhood, environment and even parental
guidance.
Philippines has now a large number of youth that is not productive in our
community. Some engage in criminality and other activities that corrupt
their mind. Despite the unwavering support of the Constitution and other
laws, more and more children are becoming renegades our lawlessness.
Children are failing to live up their potential and this is because of
circumstances outside their control. Despite of this, the State still valiantly
continues its unwavering support to the youth.
II. Discussion

It is of common knowledge that even before a child reaches the age of 18, he
already possesses, in the practical sense, a mind of his own. He or she
already knows what is right and what is wrong, as this can be learned right
in the household in his or her formative years. Due to their conscious and
malleable minds, some children are prone to being exposed to criminal
tendencies, from the influence of what they see on social media, from the
people who they interact with, from peers and the environment where they
                                                                                                                         
1  Section  13,  Art.  II,  1987  Constitution  
2  Section  3  (2),  Art  XV,  1987  Constitution  

 
grow up. This leads some children to commit unlawful acts, or worse,
criminal acts. To counter such phenomenon, the Government enacted several
laws pertaining to the youth or minors such as Republic Act 8044, Republic
Act 7610, Republic Act 9775, Republic Act 9262, Republic Act 9851,
Republic Act 10364, Republic Act 9211 which protects the youth from
being initiated to cigarette smoking and tobacco use by prohibiting the sale
of tobacco products to minors, Early Childhood Care and Development Act,
Republic Act 9288, P.D. 603 and Republic Act 9344.
With Republic Act No. 9344 or known as Juvenile Justice and Welfare
Act of 2006, it covers the different stages involving children at risk and
children in conflict with the law from prevention to rehabilitation,
reintegration and aftercare for the development of the child. It also
establishes a comprehensive system to manage Child in Conflict with the
Law (CICL) and Child at Risk with child-appropriate procedures and
comprehensive programs. Lastly, this law is intended to protect the children
from the harshness of life and to alleviate, if not cure, the ills of the growing
number of CICL and children at risk in our country.3
Child refers to a person under the age of eighteen (18) years. Under this law,
the child or the minor is considered to be the offender. On the other hand,
Child in Conflict with the Law4 refers to who a child who is alleged as,
accused of, or adjudged as, having committed an offense under Philippine
laws. R.A. 9344 modified the minimum age limit of criminal responsibility
for minor offenders. It changed the views of paragraphs 2 and 3 of Art. 12 of
the Revised Penal Code in determining exemption from criminal liability.
This law also drew its changes from the principle of restorative justice that it
espouses; it considers the ages 9 to 15 years as formative years and gives
minors of these ages a chance to right their wrong through diversion and
intervention measures.5
The age of criminal responsibility are (a) 15 years and below – absolutely no
criminal liability but subject to intervention program; (b) 15 years and one
day to below 18 years – no criminal liability (but subject to intervention
program) unless he 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

                                                                                                                         
3  Joemar  Ortega  vs.  People  of  the  Philippines,  G.R.  No.  151085,  August  20,  2008  
4  Section  4  (e),  R.A.  9344  
5  Sierra  vs.  People  of  the  Philippines,  G.R.  No.  182941,  July  3,  2009  
exemption from civil liability, which shall be enforced in accordance with
existing laws.6
Discernment has been defined as the mental capacity of a minor to fully
grasp the consequences of his act, known and determined by taking into
account all the facts and circumstances presented by the records in each
case. 7 An example of act with discernment is the act of a 17-year old
offender in choosing an isolated and dark place to perpetrate the crime, to
prevent detention; and boxing the victim to weaken her defense are
indicative of his mental capacity to fully understand the consequences of his
unlawful action.8 The surrounding circumstances must demonstrate that the
minor knew what he was doing and that it was wrong.9
For CICL who is less than 15 years old and one day to below 18 years who
did not act with discernment, he or she should undergo an Intervention
Program.
Intervention refers to a series of activities which are designed to address
issues that caused the child to commit an offense. It may take the form of an
individualized treatment program which may include counseling, skills
training, education, and other activities that will enhance his/her
psychological, emotional and psycho-social well-being.
For CICL who is less than 15 years old and one day to below 18 years acted
with discernment, he or she should undergo Diversion program. Diversion
Program refers to the program that the child in conflict with the law is
required to undergo after he/she is found responsible for an offense without
resorting to formal court proceedings. The system of Diversion is where the
imposable penalty for the crime committee is not more than six (6) years
imprisonment, the law enforcement officer or Punong Barangay with the
assistance of the local social welfare and development officer or other
members of the LCPC shall conduct mediation, family conferencing and
conciliation and, where appropriate, adopt indigenous modes of conflict
resolution in accordance with the best interest of the child with a view to
accomplishing the objectives of restorative justice and the formulation of a
diversion program. The child and his/her family shall be present in these
activities. In victimless crimes where the imposable penalty is not more than
                                                                                                                         
6  Section  6,  R.A.  9344  
7  People  vs.  Jacinto,  G.R.  No.  182236,  March  16,  2011  
8  Ibid.  
9  Remiendo  vs.  People,  G.R.  No.  184874,  October  9,  2009  

 
six (6) years imprisonment, the local social welfare and development officer
shall meet with the child and his/her parents or guardians for the
development of the appropriate diversion and rehabilitation program, in
coordination with the BCPC and Where the imposable penalty for the crime
committed exceeds six (6) years imprisonment, diversion measures may be
resorted to only by the court. 10 Diversion may be conducted at the
Katarungang Pambarangay, the police investigation or the inquest or
preliminary investigation stage and at all 1evels and phases of the
proceedings including judicial level.11 If the offense does not fall under any
of the above or if the CICL, his parents or guardians does not consent to a
diversion, the authority handling the case shall forward the records to the
prosecutor or court within three days from the determination of the
proceedings and shall be filed according to the regular process.12 The duty of
the law enforcement officer when there is no diversion is the Women and
Children Protection Desk of the PNP, or other law enforcement officer
handling the case of the child under custody, to the prosecutor or judge
concerned for the conduct of inquest and/or preliminary investigation to
determine whether or not the child should remain under custody and
correspondingly charged in court. The document transmitting said records
shall display the word "CHILD" in bold letters.13
A CICL under 18 years of age at the time of commission of the crime who is
found guilty of the offense charged shall be placed under suspended
sentence without the need of application even if the child is already 18 or
more at the time of the pronouncement of guilt unless disqualified under PD
603.

In determining whether diversion is appropriate and desirable, the following

factors shall be taken into consideration: (a) The nature and circumstances of
the offense charged; (b) The frequency and the severity of the act; (c) The
circumstances of the child (e.g. age, maturity, intelligence, etc.); (d) The
influence of the family and environment on the growth of the child; (e) The
reparation of injury to the victim; (f) The weight of the evidence against the
child; (g) The safety of the community; and (h) The best interest of the
child.14 In formulating a diversion program, the individual characteristics and
                                                                                                                         
10  Section  23,  R.A.  9344  
11  Section  24,  R.A.  9344  
12  Section  27,  R.A.  9344  
13  Section  28,  R.A.  9344  

 
14  Section  29,  R.A.  9344  
the peculiar circumstances of the child in conflict with the law shall be used
to formulate an individualized treatment. The following factors shall be
considered in formulating a diversion program for the child: (a) The child's
feelings of remorse for the offense he/she committed; (b) The parents' or
legal guardians' ability to guide and supervise the child; (c) The victim's
view about the propriety of the measures to be imposed; and (d) The
availability of community-based programs for rehabilitation and
reintegration of the child.15

R.A. 9344 does not apply to (a) Any conduct not considered an offense or
not penalized if committed by an adult shall not be considered an offense
and shall not be punished if committed by a child;16 (b) Persons below
eighteen (18) years of age shall be exempt from prosecution for the crime of
vagrancy and prostitution under Section 202 of the Revised Penal Code, of
mendicancy under Presidential Decree No. 1563, and sniffing of rugby
under Presidential Decree No. 1619, such prosecution being inconsistent
with the United Nations Convention on the Rights of the Child: Provided,
That said persons shall undergo appropriate counseling and treatment
program;17 and (c) The provisions of the Revised Penal Code, as amended,
Republic Act No. 9165, otherwise known as the Comprehensive Dangerous
Drugs Act of 2002, and other special laws notwithstanding, no death penalty
shall be imposed upon children in conflict with the law.18

R.A. 9344 is possible with the help of different agencies such as the Public
Attorneys Office, Department of Social Welfare and Development and
Philippine National Police.

As for the Public Attorneys Office it is in charge in providing legal

assistance to Children in Conflict With the Law (CICL), consistent with the
principles of the Convention on the Rights of the Child, the United Nations
Minimum Rules for the Administration of Juvenile Justice, Republic Act
No. 9344 (otherwise known as the Juvenile Justice and Welfare Act of
2006), and other related laws and rules.

                                                                                                                         
15  Section  30,  R.A.  9344  
16  Section  57,  R.A.  9344  
17  Section  58,  R.A.  9344  
18  Section  59,  R.A.  9344  

 
The legal assistance that the Public Attorneys shall afford to qualified
CICLs, includes, but not limited to the following: a) Appearing as counsel
for the CICL on initial contact or during custodial investigation, and before
the courts, prosecutor’s office, and other quasi-judicial bodies; b)
Preparation of pleadings, affidavits, sworn statements, and the like,
necessary in the defense of the CICL; c) Coordinating with the Department
of Social Welfare and Development, the Local Social Welfare Officers in
the Local Government Units, and other concerned government agencies to
procure the immediate release of the CICL placed under detention or who is
otherwise suffering from deprivation of liberty, to demand the prompt
submission of the assessment report on determination of discernment and
intervention or rehabilitation programs for the CICL, and to prevent any
delay in the diversion of the case in the barangay level; and d) Such other
action/s relative to the foregoing.19

In the rendition of legal assistance on initial contact, the Public Attorneys

Office shall determine if the CICL is represented by a counsel. If he/she is
not represented by a counsel, the Public Attorney shall, as soon as possible:
a) Conduct the initial interview on the CICL, advising him/her of his/her
rights under existing laws, and exert efforts to ascertain his/her actual age
through his/her parents, guardians or the social worker concerned; b)
Demand for the immediate release of the CICL and refer his/her case to the
local social welfare officer for the conduct of an intervention program, in
case he/she is fifteen (15) years of age or below the age of criminal
responsibility at the time of the commission of the offense; c) Ensure that the
CICL is detained separately from adults; d) Ascertain if there was due
execution by the enforcement officer of the duties imposed under Sections
21 and 22 of Republic Act No. 9344 in the conduct of the initial
investigation; In case of violation, the Public Attorney shall immediately
make representation or file appropriate administrative action before the
proper forum. For fast determination on whether there was due execution of
said duties, and to curtail infringement of the rights of the CICL, the Public
Attorney shall maintain a checklist which shall be attached to the case
history (PAO Form No. 4). e) Ensure that the taking of the statement of the
child shall be conducted in his/her presence, his/her parents, guardian, or
nearest relative, and the local social worker. In the absence of the child’s
parents, guardian, or nearest relative, and the local social welfare and

                                                                                                                         
19  Section  1,  Article  IV,  Memorandum  Circular  No.  07,  Series  of  2007  

 
development officer, the Public Attorney shall make certain that the initial
investigation shall be conducted in the presence of a representative of a non-
government organization, religious group, or member of the Barangay
Council for the Protection of Children (BCPC). f) Require the referral, in
proper cases, of the CICL for diversion before the barangay under Sections
23 and 24 of Republic Act No. 9344; and g) Secure from the DSWD or the
local social welfare officer, or court-appointed social worker, a copy of the
case study report on the CICL, if one is available.20

In the rendition of legal assistance during custodial investigation, the Public

Attorney shall, at all times, be present while the CICL is under investigation
by the authorities, and shall assist in the protection of his/her rights under
Section 2 of Republic Act No. 7438 (otherwise known as An Act Defining
Certain Rights of Persons Arrested, Detained or Under Custodial
Investigation as well as the Duties of the Arresting, Detaining and
Investigating Officers, and Providing Penalties for Violations thereof).21 As
for the inquest proceedings and preliminary investigation, where an
allegation of torture or ill-treatment was made at the time of the arrest or
detention of the CICL, the Public Attorney shall immediately make the
proper manifestation and recommend the investigation of the same to the
prosecutor.22 In the event that diversion procedures fail and the prosecutor
conducts an inquest proceedings or preliminary investigation because (a) the
CICL does not qualify for diversion; (b) when the CICL, his/her parents or
guardian does not agree to diversion as specified under Sections 27 and 28
of Republic Act No. 9344; and (c) when the prosecutor, after considering the
assessment and recommendation of the social worker, determines that
diversion is not appropriate for the CICL, the Public Attorney, upon having
been informed of the service of the subpoena and the accompanying
documents, shall: i. Obtain copy of the records and other documents relevant
to the case; ii. Prepare the counter-affidavit and affidavits of his/her
witnesses, and other supporting documents; iii. Obtain a copy of the birth
certificate of the CICL from the Civil Registrar of the locality where the
child was born or the National Statistics Office (NSO), if it has not been
previously obtained; iv. Assist in the preparation of the Waiver required
under Article 125 of the Revised Penal Code, when from the circumstances
surrounding the case and the defense of the CICL justify the conduct of a
                                                                                                                         
20  Section  1,  Article  V,  Chapter  1,  Memorandum  Circular  No.  07,  Series  of  2007  
21  Section  1,  Article  V,  Chapter  II,  Memorandum  Circular  No.  07,  Series  of  2007  
22  Section  1,  Article  V,  Chapter  III,  Memorandum  Circular  No.  07,  Series  of  2007  

 
preliminary investigation; v. Make immediate and constant verification from
the handling prosecutor of the status of the case in order that it be given
preferential attention in its resolution; vi. Ensure the observance of
procedural requirements during the investigation; vii. Appear as counsel for
the CICL during clarificatory conference, if one is necessary, to ensure the
protection of his rights.23

In the Filing of the Complaint or Information in Court, the Public Attorney,

after examination of the records of the case shall: a) Ensure the immediate
and prompt assignment of the case to a Family Court Branch; b) Move for
the quashal or dismissal of the case, if the CICL is exempt from criminal
responsibility under Sections 6 and 58 of Republic Act No. 9344; The Public
Attorney shall assist the CICL in an action for the summary determination of
his age, and shall present evidence to substantiate the age of the CICL. c)
File a motion for psychiatric evaluation of the CICL if at any time, the
Public Attorney is convinced, through the manifestation of the CICL, that he
is not fit to stand trial; d) Move for the immediate release of the CICL on
recognizance to his/her parents or other suitable persons; e) Before
arraignment, file a motion to refer case to diversion proceedings when the
imposable penalty of the offense for which the CICL is charged is
imprisonment of not more than twelve (12) years, regardless of the fine
which may be imposed, or fine alone, regardless of the amount; and f) Move
for the setting of the case for arraignment which shall be scheduled not later
than seven (7) days from the time of the filing of the complaint or
information, in accordance with Section 27 on the Rules on Juveniles in
Conflict with the Law.24      

When the case of the CICL is called for arraignment, the Public Attorney
shall a) Manifest for the conduct of the arraignment in the chambers of the
presiding judge, or in the court sala with the exclusion of the public; b)
Move for the setting of the pre-trial conference on the earliest possible time
in the calendar of the court, when a plea of not guilty is entered by the CICL;
c) Invoke all available mitigating circumstances when a plea of guilty was
made by the CICL, for the appreciation of the court in the imposition of the
penalty.25 The Public Attorney shall afford protection to the rights of the
CICL during plea-bargaining, and shall make certain that there is full
comprehension on the part of the CICL and his parents or guardian of the
                                                                                                                         
23  Section  2,  Article  V,  Chapter  III,  Memorandum  Circular  No.  07,  Series  of  2007  
24  Section  1,  Article  V,  Chapter  V,  Memorandum  Circular  No.  07,  Series  of  2007    
25  Section  2,  Article  V,  Chapter  V,  Memorandum  Circular  No.  07,  Series  of  2007  
consequences and results of any agreement or compromise that they may
enter into.26 In all proceedings and hearings conducted in the case of the
CICL, the Public Attorney shall afford protection to the rights of the CICL,
most importantly, his right to privacy and to demand confidentiality of his
records in accordance with Section 12 of Republic Act No. 8369 (An act
establishing Family Courts, granting them exclusive original jurisdiction
over child and family cases, amending Batas Pambansa Bilang 129, as
amended, otherwise known as the Judiciary Reorganization Act of 1980,
appropriating funds therefore and for other purposes). The Rule on
Examination of a Child Witness shall also be observed by the Public
Attorney when the CICL will testify in court.27 During the promulgation of
judgment, the Public Attorney shall: a) Move for the holding of the
promulgation of judgment in the chambers of the presiding judge, or in the
court sala with the exclusion of the public, and that no media coverage shall
be permitted; b) Move for the presence of the parents/guardian of the CICL
and a local social welfare officer or a court appointed social worker during
promulgation, whenever possible; c) Demand for the automatic suspension
of sentence, or when applicable, for probation, when a verdict of conviction
is meted against the CICL, in accordance with Presidential Decree No. 603
(otherwise known as the Child and Youth Welfare Code); and d) When
suspension of sentence is not possible and while awaiting resolution on his
probation, coordinate with a local social welfare officer or a court-appointed
social worker for his commitment to a suitable youth rehabilitation center or
youth detention home, and to this end, shall make proper representation in
court for the transfer of the CICL.28    
Last 2019, there is a bill proposed for lowering the age of criminal
responsibility. House Bill No. 885829 aims to initially proposed to lower the
criminal liability age to 9. But legislators decided to raise this to 12 years old
following strong resistance from opposition lawmakers and other children's
rights groups. The intent of the bill, therefore, remains the same: When a
child 12 to 18 years old commits a serious crime, he or she would be sent to
the Intensive Juvenile Intervention and Support Center inside the nearest
                                                                                                                         
26  Section  3,  Article  V,  Chapter  V,  Memorandum  Circular  No.  07,  Series  of  2007  
27  Section  4,  Article  V,  Chapter  V,  Memorandum  Circular  No.  07,  Series  of  2007  
28  Section  5,  Article  V,  Chapter  V,  Memorandum  Circular  No.  07,  Series  of  2007  
29  An   Act   Expanding   the   Scope   of   the   Juvenile   Justice   and   Welfare   System   and   Strengthening   the  

Social   Reintegration   Programs   for   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”    
 
youth care facility, also called Bahay Pag-asa. These serious crimes involve
parricide, murder, infanticide, kidnapping, serious illegal detention where
the victim is killed or raped, or violation of the Comprehensive Dangerous
Drugs Act of 2002 that is punishable by more than 12 years in prison.

III. Conclusion

It is unavoidable, in the current state of the Philippines, to have children in

conflict with the law. We live in chaotic times, poverty is rampant, the
ongoing pandemic situation and many have lost their jobs and cannot sustain
their families anymore. Due to unexpected circumstances, some are greatly
affected especially the mental health of the citizens and this may lead to an
increase of children in conflict with the law, as they are currently being
deprived of their potential in the current state of our country, and they may
be lead astray by their current mentalities. We need to strengthen the youth
and unleash their true potential. Through R.A. 9344, efforts are made to
improve the youth’s decision-making, propensity to engage in risky
behavior, impulse control, identity development, and maturity. Furthermore,
skill development, rehabilitation, addressing treatment needs, and successful
reintegration of youth into the community is practiced.

IV. Recommendation

Giving legal advice for a child in conflict with law may seem to be a
difficult task but it should be really advocated and well-practiced. We must
give legal advice to them by explaining the effects of the crime he or she has
committed and investigate further why he or she committed the crime. We
must also give him or her a simple and brief overview of R.A. 9344 and
communicate with him or her that notwithstanding his or her exemption
from criminal liability, he or she should have a mindset that he or she was
not exempted at all. Early intervention plays an important role in keeping
minors from embarking on a life of crime. Swift and consistent punishment
for offenses can help reduce the incidence of crime. After serving their
sentence, young offenders should receive support aimed at preventing
committing offense again. The child in conflict with law had already
suffered a lot in the eyes of the public eyes because of his or her
wrongdoings. Thus, it is time to show our compassion for the apparent
humiliation he or she has suffered including his or her family. He or she still
deserves a compassionate justice. What our lawmakers should improve is the
diversion programs created by the DSWD and make sure that there are more
programs and laws unleashing the potential of the youth.

V. Reference
Ø Nojara, F. Special Penal Laws Concepts and Jurisprudence. 2019
Edition. Centralbooks
Ø https://www.lawphil.net/statutes/repacts/ra2006/ra_9344_2006.html
Ø https://congress.gov.ph/press/details.php?pressid=7047
Ø https://www.tuloyfoundation.online/new-page-1
Ø https://www.congress.gov.ph/legisdocs/first_17/CR01071.pdf
Ø https://pao.gov.ph/UserFiles/Public_Attorney's_Office/file/PAO-MC-
CICL.pdf
Ø https://www.officialgazette.gov.ph/constitutions/the-1987-
constitution-of-the-republic-of-the-philippines/the-1987-constitution-
of-the-republic-of-the-philippines-article-xv/