CHR, advocates oppose lowering age of criminal liability

ADVOCATES for the protection of children's welfare averred that children in conflict with the law must be accorded intervention and rehabilitation for them to become productive members of society when they become adults, and not incarcerated like common criminals.

The advocates made the statement in a forum dubbed as “Criminalizing the Child” and held in Cagayan de Oro City last September 29.

The forum attendees, representing cross sections of the community, were unanimous in opposing a House bill that proposes lowering the minimum age of criminal responsibility (MACR), except for the Cagayan de Oro City Council, which proposed a higher age level for the MACR at 12 years old.

House Bill 002 is a proposed legislation of the 17th Congress that seeks to amend Republic Act 9344, also known as Juvenile Justice and Welfare Act (JJWA), as amended by Republic Act 10630 by reverting the MACR from 15 years old to nine years old.

The MACR is the lowest statutory age, at which children may potentially be prosecuted in any court, and may be held criminally liable for offenses.

The proponents of the bill opined that it is the policy of the State to ensure that the Filipino youth are taught to accept responsibility for their words and deeds as early as possible, and not to unduly pamper them with impunity from criminal responsibility.

The lawmakers also believe that the time is ripe for the age of criminal responsibility to be lowered to nine years old, considering that most children above this age, especially in these times, are already fully informed because of the wealth of information that they can easily access through the use of technology.

Under the proposed measure, a child nine years of age and above but below 18 years old shall be exempt from criminal liability and subjected to an intervention program unless he/she is determined to have acted with discernment, in which case he/she shall be subjected to appropriate proceedings in accordance with the proposed law.

On the other hand, a child under nine years old at the time of the commission of the offense shall be exempt from criminal responsibility but shall be subjected to an intervention program.

The Commission on Human Rights (CHR) reiterated its strong opposition to any amendments that will lower MACR.

“We affirm our previous stance that lowering the MACR oversimplifies the nature of juvenile offending and violates the fundamental principles of child protection and welfare as provided for by laws, international treaties, and internationally-accepted standards and principles,” it said.

“We cannot overstress that juvenile offending will not be resolved by simply lowering the MACR. This will only subject more children into adult justice system instead of addressing the underlying causes both juvenile offending and victimization. It is contentious to say that incarceration will stop children from committing crimes or discourage syndicates from using or exploiting them if the same is not backed up with a thorough study, research and crime statistics. On the contrary, there are numerous studies, scholarly texts and documented practices that would substantiate the view that early incarceration will only do more harm than good on children. Further, if the real intention of the legislators is to stop syndicates from using children to consummate their evil deeds then focus should be directed on prosecuting the real perpetrators and ensuring that they suffer the highest degree of penalty provided for under our laws,” CHR said in a statement.

The human rights body recommended that instead of bringing more children into the adult justice system, the government must first prioritize the full implementation of the JJWA to ensure that the children who have been found to have violated the law and are now institutionalized are being rehabilitated to prepare them for their reintegration to their communities.

Rather than pushing for a new law that would put more children in detention, the Congress should instead use their legislative powers to appropriate the resources needed by the different branches and instrumentalities of the government to fund the construction of Bahay Pag-asa facilities in every province and highly urbanized city, as well as the employment of medical doctors, licensed social workers, educators, psychologists who will serve as members of Multi-Discplinary Teams in every Bahay Pag-asa facility, added the CHR.

Republic Act 10630 states that each province and highly urbanized city shall be responsible for building, funding and operating a "Bahay Pag-asa" within their jurisdiction following the standards that will be set by the Department of Social Welfare and Development (DSWD) and adopted by JJWC.

The Philippines has 81 provinces and 33 highly urbanized cities but as of September 2016, only 37 Bahay Pag-asa facilities have been established throughout the country. Of these, three are run by non-government organizations, while two are considered not fully operational for failing to meet the standards established by the DSWD.

“Although the number of facilities has grown over the years, still, these are not enough to accommodate all the children who need to be institutionalized and rehabilitated. To date, four regions have yet to establish ‘Bahay Pag-asa’ facilities for children in conflict with the law within their respective jurisdictions,” the CHR said.

For Balaud Mindanaw, the JJWA, as amended, is a landmark child protection law that has been recognized by other states. But to modify the law in as short as four years from the time it was last amended may be considered premature, especially so that the government has not yet even come to fully implement it, it said.

Needless to say, Balaud Mindanaw said the State must give this law a chance before finally deciding to change it, "for the problem may not be in the law but with the failure to enforce it."

“As it is, JJWA is a good law for it does not only protect the rights of CICL (children in conflict with the law) but also ensures that mechanisms are in place to prevent juvenile offending and reoffending. However, the intent of this law may only be realized once the policies, practices, programs, and actions that is provides are developed, established, and fully implemented,” said lawyer Normie Batula, Balaud Mindanaw executive officer.

Balaud Mindaw stressed that lowering the MACR also violates the fundamental principles of child protection and welfare of which the principle of protecting a child’s well-being and development is entwined with that of their best interest.

"It encompasses the need for additional measures and protections due to a child’s vulnerability and the duty of the State to provide this protection as enshrined under our Constitution, our domestics laws and in the various international human rights instruments specifically the United Nation Convention on the Rights of the Child," it said.

It said as a party to the United Nations Convention on the Rights of the Child (UNCRC), the Philippine Government has complied with this recommendation when it enacted Republic Act 9344 into law, increasing the MACR from above nine years under the Revised Penal Code to 15 years of age.

"To renege on this commitment would constitute violation of international law and the principle of non-regression. Once a higher MACR has been established, the State must not lower at this will go against the progressive implementation of the CRC. Above all, lowering the MACR would be detrimental to the best interest of the child," said Balaud Mindanaw.

In lieu of the proposed legislation lowering the MACR, CHR and the various non-government organizations that attended the forum recommended that the government fully implement Republic Act 9344, as amended by Republic Act 10630.
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