Presidential Decree no. 603 otherwise known as the Child and Youth Welfare
Code was signed into law on December 10, 1974 and became effective six
months after its approval. This code mentions in Chapter 3, articles 189-204,
the care and treatment of youthful offenders from the time of apprehension
up to the termination of the case.
In the final years of the Marcos era, crime became hardened in the street.
Between 1976 and 1983 murder, robbery, theft, rape and homicide rose from
37% to 58% of all crimes committed. Delinquent youth doubled from 3,814 in
1987 to 6,778 in 1989. The majority (59.1 %) apprehended were between 17
and 21 years old, while another 31.8% were between 13 and 16 years old.
Only 2.3 % were preteens. This was the situation based on data given by the
Department of Social Welfare.
Under Article 40(3) of the CRC, States parties are encouraged to establish a
minimum age below which children are presumed not to have the capacity to
infringe the criminal law. There is much controversy about what should be
the most appropriate age of criminal responsibility and there are no
categorical international standards in this regard. In General Comment No.
10, the Committee on the Rights of the Child concludes that a minimum age
of criminal responsibility below the age of 12 years is considered by the
Committee not to be internationally acceptable. At the same time it stresses
that States parties should not lower their age of criminal responsibility to 12
where it has already been set higher and strongly encourages States to
introduce a higher minimum age of criminal responsibility, for instance 14 or
16 years of age. Certainly there is nothing to prevent States from having 18
as their minimum age of criminal responsibility and a number of countries
have chosen to do so including Brazil.
Guidance is also found in Rule 4 of the Beijing Rules which recommends that
any minimum age of criminal responsibility shall not be fixed at too low an
age level, bearing in mind the facts of emotional, mental and intellectual
maturity.4 The Commentary to this Rule states that the modern approach is
to consider whether a child can live up to the moral and psychological
components of criminal responsibility; that is, whether a child, by virtue of
her or his individual discernment and understanding, can be held responsible
for essentially anti-social behaviour. The Rules advise that in general there
should be a close relationship between the notion of criminal responsibility
and other social rights and responsibilities (such as marital status, civil
majority, etc).
Under Article 12 of the CRC, when a child is the subject of any administrative
or judicial proceedings, he or she has the right to be heard directly or
through a representative or an appropriate body, in a manner consistent with
the procedural rules of national law. General Comment No.10 states that: A
fair trial requires that the child alleged as or accused of having infringed the
penal law be able to effectively participate in the trial, and therefore needs
to comprehend the charges, and possible consequences and penalties, in
order to direct the legal representative, to challenge witnesses, to provide an
account of events, and to make appropriate decisions about evidence,
testimony and the measure(s) to be imposed. Article 14 of the Beijing Rules
provides that the proceedings should be conducted in an atmosphere of
understanding to allow the child to participate and to express himself/herself
freely. Taking into account the childs age and maturity may also require
modified courtroom procedures and practices. The implication is that
children must be able to participate effectively in trials but cannot do so if
they are not sufficiently mature.
In international criminal law, the issue of the minimum age of criminal
responsibility has not been addressed. The statutes of the International
Criminal Tribunals for Former Yugoslavia and Rwanda do not include any
provisions governing the age of criminal responsibility, nor have they
indicted anyone under 18. The Rome Statute of the International Criminal
Court states that the court shall have no jurisdiction over any person who
was under the age of 18 at the time of the alleged commission of the
offence. This is a jurisdictional provision and in effect defers the issue to
national law.
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INTERNATIONAL LAWS
PHILIPPINE LEGISLATION
Republic Act (RA) 8369 (1 ct (RA) 8369 997), or the Family Courts Act.
RA8369 established family courts all over the country and their jurisdiction.
Rule on on Juveniles in Conflict with the Law. Issued by the Supreme Court
in Law February 2002, this rule now implements Presidential Decree (PD) 603
and other laws. It supersedes the Rules and Regulation on the Apprehension,
Investigation, Prosecution and Rehabilitation of Youth Offenders (1995) and
the Revised Rules on Criminal Procedure for CICL (1932; though still
applicable for adult offenders) but both these laws are supplementary on
those areas not covered by the Rule on Juveniles in Conflict with the Law
(such as the procedure for preliminary investigation and bail).
Rule on the Commitment of Children. This ruling took effect in April 2002
(Administrative Memorandum [AM] No. 02-1-19-SC). It is the procedure
applied in court when a child is legally entrusted to the care of the
Department of Social Welfare and Development (DSWD) or any duly licensed
child-placement or child-care agency or individual (parent/ guardian or any
interested party). This Rule applies to: (1) a dependent child, without parent/
guardian, or whose parents/guardian for good reason wish to be relieved of
care and custody and so is dependent upon public support; (2) an
abandoned child; and (3) a physically or emotionally neglected child. If the
CICL is found to be one of these children, the DSWD or any licensed child-
placement or child-care agency may file a petition for the commitment of the
child.
R.A. 7610 (1991), R.A. 7610 (1991), or R.A. 7610 (1991), Special Protection
of Children against Child Abuse, Exploitation and Discrimination
BARANGAY LEGISLATION
Barangay legislation is very important in undertaking diversion from the
formal justice system. It is based on two major legislations, PD 603 and the
Katarungang Pambarangay (Barangay Justice System).
PD 603 (1974) mandates the establishment of the barangay council for the
protection of children (BCPC), which is a multi-sectoral body tasked with
formulating policies and programs to promote and protect childrens rights at
the barangay level.
LOCAL ORDINANCES
The Local Government Code gives the city, the municipality and the
barangay the power to enact laws at their respective levels of governance.
Local authorities have produced both penal and non-penal ordinances. In the
three study areas, there are local penal ordinances that apply only to
children such as violation of curfew, substance abuse, anti-peddling, smoking
and use of tobacco, loitering and playing video games. In Cebu City, the
major ordinance violated is City Ordinance (CO) 1361, which rules against
littering. With the enforcement of this ordinance, children are arrested while
seeking food, plastic articles and bottles from the rubbish, a graphic example
of survival offending. The ultimate punishment of custody is sometimes
imposed, ranging from one day to one year. Although graduated fines are
often the most likely sentences, failure to pay could still lead ultimately to
custody. The Metro Manila report prsents examples of these local ordinances
in the cities studied.
STATISTICS
Amnesty International stated that Filipino children who come into conflict
with the law are often from marginalized groups including street youth, drug
users, and those with interrupted education, who have limited access to the
family and societal structures meant to protect them. These children straddle
the child and adult worlds and, in some ways, get the worst of each. Even
before arrest, children who come into conflict with the law tend to represent
the most disadvantaged and marginalized sectors of society. Many are
fleeing difficult home situations, often exacerbated by abuse and poverty
and resulting in an interrupted education.[8]
"These children in prison are frequently mixed with adult prisoners and
sexually abused in the over packed cells. Here eighty to a hundred prisoners
squat for 24 hours taking turns at lying down so congested are the small
cells. The heat and stench is overpowering, the food is only a few cents a day
and disease, malnutrition and tuberculosis are the daily hazard suffered by
the children."[4]
Children in jail are at risk of sickness and death from contagious diseases
such as TB, HIV/AIDS and hepatitis
Today, there are two very different approaches to juvenile crime. One is to
lock up more and more young offenders, at an increasingly young age. The
other trend - in the spirit of the UN Convention on the Rights of the Child - is
to avoid criminalisation and to seek family-based or other social alternatives
to imprisonment. I am arguing for the second approach. (CRIN)
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The case studies show that poverty is one of the factors invariably linked to
childrens vulnerability and one of the tipping factors in producing domestic
violence. All these put together contribute significantly to putting children at
risk and to pushing them to live outside their homes and among their
barkada (gang or peer group) or to running away from home altogether.
These situations seem to dramatically increase the chance of offending.
Research quoted in the three studies states that a third of the Philippines
84.5 million population in 2002 live below the governments set poverty line
of Php 38 per person per day (68 US cents). Other independent studies (IBON
Foundation) using government data estimate that 77% of the people are not
earning enough to maintain a decent standard of living and that it is even
worse in rural areas where almost all (92%) rural families are poor. Figures
from the National Statistics Offices Family Income and Expenditure Survey
(2000) presents a more distinct picture of poverty and the dismal state of
Filipino children: 27% of homes have no electricity; 20% have no access to
safe drinking water; about 33% of family heads are unemployed or uunder-
employed (as of January 2002, 10% of the total workforce, or 3.4 million,
were unemployed); 15% of families have working children; and 16% and 42%
of those with children aged 6-12 and 13-16, respectively, are not able to
send their children to school.
Sex. Findings from all the studies show that . more boys than girls come into
conflict with the law. In the Cebu study, police records in 1999-2001 revealed
that the majority of children arrested were boys (79%). In Davao City, of the
497 arrested by the police (January-June 2002), the majority (83%) were also
boys. These findings were corroborated by the Metro Manila study, which
found that the majority (89%) of the 706 CICL handled by the Family Courts
in 2001-2002 were boys. Boys also dominated the prisons, with 95% in Cebu
in 1999-2001 and 91% in Davao as of November 2002.
Age. The average age of children arrested . in Cebu City over the study
period was 14.4 years. Very few children below the age of 14 years were held
in custody and the proportion of older children in custody increases with age.
In Davao, children as young as 5 or 6 could be rounded up but were then
handed over to the DSWD.
Family Violence. Of the CICL presented . in the case studies, nine discussed
mostly about their family background, six of whom clearly came from violent,
neglectful or uncaring homes. This appeared to have been a major factor to
these children becoming at risk and to three of them running away from
home. Of the six, four highlighted the significant role of their parents either
by blaming them for what happened (2 cases) or by realising the need to
change because of their parents being more loving (1 case) or more
concerned, that is, guiding and monitoring them (1 case). More than half
(54%) of the 28 CICL held at the Community Scouts Center in Cebu said that
they have been abused by family members. The extent of domestic abuse
can be gleaned from figures presented in the Cebu study, which showed that
of the 82 CICL in custody who were asked about domestic violence, only 30%
(21 boys and 3 girls) admitted to having been abused (see Table 3).
Afghanistan
No child under the age of 12 can be held criminally responsible [Juvenile
Code, Article 5(1)]. However, during its review of Afghanistan in 2011, the
Committee on the Rights of the Child criticised the State for detaining
children under the age of criminal responsibility in Juvenile Rehabilitation
Centres. [UN Committee on the Rights of the Child, Concluding observations
on Afghanistan's initial state report, CRC/C/AFG/CO/1, 8 April 2011, paras. 74
and 75]
Bahrain
The Penal Code provides that no person who was younger than 15 at the
time an alleged offence was committed may be held liable under the Code,
but must be subject to the Juveniles Law. In effect, 15 is the age of criminal
majority, the age at which children can be tried under the criminal justice
system that applies to adults. Children older than 15 can be subject to the
penalties under the Penal Code. [Penal Code, article 32].
Bangladesh
No person can be held criminally responsible for an offence allegedly
committed while they were under the age of 9. [Penal Code, Section 83]
Bhutan
No child below the age of 10 may be held criminally liable for a criminal
offence. [Penal Code 2004, Article 114.]
Brunei Darussalam
No one can be held criminally responsible for an offence committed while
under the age of 7. Children older than 7 but younger than 12 can only be
held criminally responsible where they have sufficient maturity of
understanding to judge the nature and consequences of their actions at the
time of the offence.
Cambodia
Children as young as 14 can be convicted of a criminal offence if the
circumstances of the offence or the personality of the minor justify doing so.
However; children younger than 14 can be subjected to measures of
surveillance, education, protection and assistance. [Criminal Code, article
39]
China
Mainland China
Generally, people can be held criminally responsible from the age of 16, but
children can be held criminally responsible for intentional homicide,
intentionally hurting another person so as to cause serious injury of death,
rape, robbery, drug-trafficking, arson, explosion or poisoning from the age of
14. [Criminal Law of the People's republic of China, Article 17]
India
No person can be held criminally responsible for an act committed while he
or she was under the age of seven [Indian Penal Code, Section 82] and no
person can be held criminally responsible for an act committed while under
12 while of immature understanding. A child will be considered to be of
immature understanding when he or she has not attained sufficient
maturity of understanding to judge the nature and consequences of his
conduct on that occasion. [Indian Penal Code 1860, Section 83]
Indonesia
People can be held criminally responsible for their actions from the age of 8
[See Third and fourth periodic reports of Indonesia to the UN Committee on
the Rights of the Child, CRC/C/IND/3-4, 31 October 2012, para. 165]. As of
2012, a bill that would raise the minimum age of criminal responsibility was
under consideration, but at the time of writing, it had not been enacted. [See
Inter Press Service, Commission seeks rehabilitation, not detention, 10
February 2012]
Iraq
Children can be held criminally responsible for offences committed from the
age of 9. [Juvenile Welfare Law No. 76 of 1983, Articles 47(1) and 108]
Israel
No person can be held criminally responsible for an act committed while
under the age of 12. [Penal Law of Israel-626/1996, Section 34F]
Under Israeli military law applied in the West Bank, no person under the age
of 12 can be arrested or prosecuted in a military court. [Military Order 1651,
Section 191]
Japan
The Penal Code asserts that no one can be punished under the criminal law
for any act carried out while under the age of 14 [Penal Code, Article 40].
However, amendments made to the Juvenile Act in 2007 permitted the
Family Courts to commit children as young as 11 to Juvenile Training Schools
under the administration of the Ministry of Justice Correction Bureau.
Jordan
Jordan has reported that children can be held criminally responsible from the
age of 7 [Juveniles Act, Law No. 24 of 1968, Article 36. As per Third periodic
report of Jordan to the UN Committee on the Rights of the Child, CRC/C/JOR/3,
2 March 2006, para. 53]. In July 2014, the lower house of the Jordanian
parliament passed a draft juvenile law that would raise the minimum age of
criminal responsibility to 12 years, though at the time this report was
finalised, the amendment had not entered into force. [Penal Reform
International, Jordan moves towards restorative justice and adoption of non-
custodial alternatives for children 9 July 2014]
Kazakhstan
A person can be held criminally liable for any offence committed while over
the age of 16 [Criminal Code, Article 15(1)]. For offences specifically listed in
the criminal code children can be held criminally responsible from the age of
14. Generally speaking the lower age limit only applies to more serious
offences involving violence, though vandalism and deliberate damage to
transport vehicles or roads are also included on the list of offences for which
a lower minimum age of criminal responsibility is applied. [Criminal Code,
Article 15(2)]
Where a juvenile offender has reached either of these ages for criminal
liability, but while committing the crime of a lesser or medium gravity, he
or she was not aware of the nature or social danger of his acts as a result of
mental retardation, he or she will not be held liable. [Criminal Code, Article
15(3)]
Korea, Republic of
No one can be punished for an offence committed while under the age of 14
[Criminal Act, Article 9]. Children can be subject to protection measures from
the age of 12, which include placement in child welfare institutions, juvenile
protection institutions and juvenile training schools or reformatories. [For
further reading, see Cipriani, D. (2009), Childrens Rights and the Minimum
Age of Criminal Responsibility: A Global Perspective, Farnham: Ashgate
Publishing Limited, p. 213]
Kuwait
Persons under the age of seven cannot be held criminally responsible
[Juveniles Act, Article 6]. Children aged seven to 15 who commit unlawful
acts may be subject to penalties under the Juvenile Act, including detention
in an institution. [Juvenile Act No. 3 of 1983, Article 6]
Kyrgyzstan
Children aged 16 at the time of an alleged offence may be held criminally
liable for any offence [Criminal Code, Article 18(1)]. For a number of offences
specifically listed in the Criminal Code, children can be held criminally
responsible from the age of 14. [See Criminal Code, Article 18(2)]
Lebanon
Children under the age of seven (7) cannot be held criminally responsible.
[Law Number 422 of 2002 on the protection of juveniles in conflict with the
law or at risk, Article 3.]
Malaysia
Malaysia has a dual system of secular and Islamic law, which has resulted in
a number of different minimum ages of responsibility depending on which
branch of the law is applicable.
Under the Penal Code, a person can be held criminally responsible from
the age of 10. [Penal Code, Article 82. See also Child Act Article 2]
Under the Syariah Criminal Offences (Federal Territories) Act 1997,
Muslim children can be held criminally responsible from the onset of puberty.
[Syariah Criminal Offences (Federal Territories) Act 1997, Articles 2 and 51]
Maldives
The Penal Code 2014 does not set a clear minimum age of criminal
responsibility, but frames the issue using the excuse of lack of maturity. A
person is excused of a criminal offence if he or she lacks the maturity of an
adult and as a result lacks lacks the capacity to accurately perceive the
physical consequences of his or her conduct; to appreciate the wrongfulness
of his or her conduct; or to control his or her conduct. People under the age
of 15 are conclusively presumed to be excused of any criminal offence with
which he or she is accused. A person aged 15 to 18 is presumed to be
excused of any criminal offence unless the prosecution rebut the
presumption of immaturity. A person who was under the age of 18 at the
time of an alleged offence and meets the requirements of this excuse must
be transferred to the Juvenile Court, which has exclusive jurisdiction in any
subsequent proceedings.[Penal Code 2014, Section 53]
However; this restriction does not apply to offences punishable under Sharia
law or for violent felony offences, for which the penalty is postponed until the
child reaches the age of 18.]
Mongolia.
Children can be held criminally responsible for all offences from the age of 16
and for specifically named offences from the age of 14. [Criminal Code,
Article 21(1) and (2)]
Myanmar.
No person can be held criminally responsible for an offence carried out while
under the age of seven. Children aged seven to 12 may only be held
criminally responsible where they have attained sufficient maturity of
understanding to judge the nature and consequences of their conduct.
[Child Law, Section 28(a) and (b)]
Nepal.
The Children's Act provides that no child can be punished for a criminal act if
he or she was under 10 years old at the time of the offence. Children aged
10 years to 13 years inclusive, can only be given a warning for offences that
carry a maximum penalty of a fine. [Children's Act, Section 11(1) and (2)]
Oman.
No one can be subject to criminal penalties for an offence committed while
under the age of nine. Where the age of a suspect is not established it shall
be evaluated by the judge. [Penal Code, Article 104]
Pakistan.
Under the Penal Code, no one can be held criminally responsible for an
offence carried out while under the age of seven (7). Children older than
seven and younger than twelve can only be punished under the Penal Code
where they have attained sufficient maturity of understanding to judge the
nature and consequences of [his or her] conduct on that occasion. [Penal
Code, Sections 82 and 83]
West Bank.
Children under Palestinian criminal law can be held criminally responsible
from the age of 12. [Palestinian Child Law, Article 67 as amended]
Under Israeli military law as it applies to child offenders, no person under the
age of 12 can be arrested or prosecuted in a military court. [Military Order
1651, Section 191]
Philippines.
No one can be held criminally responsible for an act carried out while under
the age of 15. Children aged older than 15 but younger than 18 can only be
held criminally responsible where they have acted with discernment.
[Republic Act No. 10630, Section 6]
.Qatar.
Children under the age of seven cannot be held criminally responsible. [Law
No. II of 2004, the Penal Code, Article 53]
Saudi Arabia.
The minimum age for criminal responsibility has reportedly been raised from
7 to 12, but reports are inconsistent and the rise would not apply to girls or
in qisas cases.. The Detention Regulation and the Juvenile Homes Regulation
1975 define a juvenile as below the age of 18.
Singapore.
Children can be held criminally responsible for offences committed from the
age of seven (7). Children aged older than seven but younger than 12 cannot
be held criminally responsible unless they have attained sufficient maturity
of understanding to judge the nature and consequence of [their] conduct on
that occasion. [Penal Code, Sections 82 and 83]
Sri Lanka.
No person can be held criminally responsible for an offence committed while
under the age of eight (8). A child older than eight but younger than 12 can
only be held criminally responsible if he or she has attained sufficient
maturity of understanding to judge of the nature and consequence of his [or
her] conduct on that occasion. [Penal Code, Sections 75 and 76]
Syria.
A child under the age of 10 at the time of an alleged criminal offence cannot
be held criminally responsible. [Juvenile Act 1974, Article 10 (as amended by
Legislative Decree No. 52 of 2003]
Tajikistan.
Children can be held criminally responsible for any offence from the age of
16, but from the age of 14 for certain named offences, usually involving
violence. However, the UN Committee on the Rights of the Child has
expressed concern that children under the age of 14 are frequently
subjected to arrest, pretrial detention and deprivation of liberty in closed
institutions. [Criminal Code, Article 23(1) and (2); CRC/C/TJK/CO/2, 5
February 2010, para. 72]]
Thailand.
No person can be held criminally responsible for an offence committed while
under the age of seven (7). A child older than seven but younger than 14
cannot be punished, but can be subjected a number of sentences including
detention in a school or place of training and instruction. [Penal Code,
Sections 73 and 74(1)-(5)]
Timor-Leste.
Children under 16 are exempt from criminal liability. For persons aged over
16 but younger than 21 criminal penalties are provided for in specific
legislation. [Penal Code, Article 20]
Turkmenistan.
Children are criminally liable for all offences from the age of 16 and for
certain named offences from the age of 14. [Penal Code, Articles 21]
Uzbekistan.
Persons can be held criminally responsible for all offences committed after
they have reached the age of 16, and for intentional killing from the age of
13, and for other specifically named offences from the age of 14. [Criminal
Code, Article 17]
Viet Nam.
A child aged 14 or older can be held criminally responsible for very serious
crimes intentionally committed or particularly serious crimes. A child aged
16 or older can be held criminally responsible for any offence.
Yemen.
No one can be held criminally responsible for an act committed while under
the age of seven.1 [Republican Decree, Law No. 12 of 1994 concerning
crimes and penalties, Section 31]
Hungary
Hungary enacted a new Criminal Code in 2012 which reduced the minimum
age of criminal responsibility from 14 to 12 for homicide, voluntary
manslaughter, battery, robbery and plundering, provided that the child had
the capacity to understand the nature and consequences of his or her act.
For all other offences, children can be held responsible from the age of 14.
Panama
Articles 2 and 4 of Law No. 6/2010 reduced the MACR from 14 to 12.
The Committee on the Rights of the Child makes it clear that children who
are over the minimum age of criminal responsibility and in conflict with the
law have a lesser culpability than adults because they differ from adults in
their physical and psychological development, and their emotional and
educational needs. States must accommodate these differences by
establishing justice procedures for children that guarantee their right to a fair
trial and that are focused upon rehabilitation of the child rather than on
punishment or retribution. These procedures must be in full compliance with
all provisions of the CRC including the following:
- In all actions concerning children, the best interests of the child shall
be a primary consideration. While best interests has not been
precisely defined, General Comment No. 10 states that [t]he
protection of the best interests of the child means, for instance, that
the traditional objectives of criminal justice, such as repression/
retribution, must give way to rehabilitation and restorative justice
objectives in dealing with child offenders. This can be done in concert
with attention to effective public safety.
-There will always be a need for secure accommodation for the very
small minority of children over the age of criminal responsibility who
commit serious violent offences and who pose a significant risk to
themselves or their communities. However, a child can only be
arrested, detained or imprisoned as a measure of last resort and for
the shortest possible time. Detention before trial should only be used
in exceptional circumstances (where the child is an immediate danger
to himself/ herself or others) and should only be used for limited
periods of time. Bail and other forms of conditional release should be
accompanied by measures to support and supervise the child during
this period. Detention following conviction must only be used as a last
resort and for the shortest possible time in situations where a child is
convicted of a violent offence or has been involved in persistent
serious offending and there is no other appropriate response.
RECOMMENDATIONS
To Governments:
Stop lowering the age of criminal responsibility and thereby criminalising
more and more children, and stop detaining children for minor and/or first
time offences
Amend laws and practices so that children are never detained as
punishment, but only as a last resort for the shortest period possible,
specifically only when they are assessed as being a serious risk to others or
for their own safety, and where that risk cannot be reduced to an acceptable
level without detention
Never to detain children in penal settings
Ensure that any necessary restriction of liberty is authorised by a legal
process with the child independently represented and that detention is
frequently reviewed
Cooperate with and support the forthcoming UN Global Study on Children
Deprived of Liberty.
https://www.unicef.org/rosa/Criminal_Responsibility_08July_05(final_copy).pdf
General Recommendations
Amend current MACR provisions and practices, as necessary, to meet the
standards which have evolved under the CRC:
- Increase the MACR to at least 13 years, and stipulate by law that it is the
sole relevant age limit with respect to all alleged crimes.
- Upon increasing the MACR to at least 13, revoke doli incapax provisions in
their entirety (in Bangladesh, India, Pakistan, and Sri Lanka).
- Specify that childrens ages shall be CONCLUSION AND
RECOMMENDATIONS 28 assessed and considered as at the time of their
alleged commission of offenses.
- Stipulate that the same MACR applies immediately and uniformly
throughout the country without exception, and that it is not subject to
derogation by separate existing or future special legislation (including, inter
alia, martial law, anti-terrorism legislation, emergency legislation,
state/provincial laws, etc.).
- Ensure that, in law and in practice, children younger than the MACR who
are in conflict with the law face appropriate protective and educative
measures of accountability, and never criminal procedures or sanctions.
- Amend current laws so that criminal responsibility neither depends upon
nor is implied by puberty.
- Pursue broader juvenile justice reforms, as needed and in tandem with
MACR amendments, to ensure the respect of all childrens rights.
- Expand childrens rights training programs to include all relevant officials
and personnel involved in the juvenile justice system.
- Strengthen current efforts to register all children at birth, and undertake
further measures to provide proof of age and identity to all children who
were not already registered at birth.
- Devise practical, uniform procedures for prompt and accurate estimation of
childrens ages in cases where no reliable proof of age is available.
- Expand appropriate programs and services for children in conflict with the
law, and make a variety of non-punitive programs available for children
younger than the MACR.
- Take all steps necessary to prevent the instrumentalization of children for
criminal purposes, and ensure appropriate responses and services to all
exploited children.
- Engage media outlets and associations to encourage informed and
responsible coverage of childrens issues.
- Conduct comprehensive public awareness and education campaigns on
childrens rights and juvenile justice.
- Ensure that traditional justice systems respect childrens rights in their
handling of children accused of crimes.
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Wherever possible, childrens difficulties should be resolved in their
respective communities, with the resolution depending on the seriousness of
the offence or whether it is a further offence. This may range from a warning
given by the police to mediation with a written agreement. This is the
essence of what is called diversion. Diversion is the generic term given to
describe the various processes that may be used to ensure that CICL are
prevented from entering the formal justice system. Restorative justice e
justice, as opposed to retributive justice (or justice attained by punishing or
sanctioning the offender, which is the spirit of the existing justice system in
the Philippines), is increasingly seen as an effective way by which diversion
can be done.
Restorative justice involves bringing together the offender and the victim in
mediation in a community setting, using respected community members as
mediators. These elements were common to most traditional community
justice systems and had, as they do today, the goal of restoring balance and
harmony in the community by the offender making some form of reparation
and/or apology to the victim to repair the harm done. The offender
experiences justice in a very real way by facing his/her victim, confronting
the offence and hopefully working out a solution that is acceptable and
mutually beneficial to all parties concerned. Although most common at the
community level, restorative justice can take place while a child is in pre-trial
detention or even after finding guilt and being sentenced by a court. Its use
in contemporary times, however, requires that the offender admits to the
offence, that certain justice safeguards are met and that the childs rights
are not infringed.
https://resourcecentre.savethechildren.net/sites/default/files/documents/3235.pdf
IMPROVING THE TREATMENT AND REDUCING THE NUMBER OF CICL IN METRO
MANILA In the Metro Manila case studies, the nine CICL interviewed were asked their opinions
concerning the gaps and problems in the administration of justice and their suggestions for
improvement. Their comments on diversion have already been described above.
Of the nine children, seven had been arrested for the first time (one for a second time and one for
a third time). Only two mentioned violence by the police. In one case, a child claimed that a
plastic bag was put over his head to force a confession. Four of the CICL described how the
investigation process and the court hearing were opened to the media and/or the public. In two
cases, the media filmed CICL being interviewed without the latters permission; one was with
the barangay captain and the other at the police station.
The children gave the following suggestions to help improve justice administration among
children.
Age of criminal criminal responsibility. When asked . what the minimum age of criminal
responsibility should be (which currently stands at nine years20 ), three different answers came
out: 20 (one response), 18 years (three responses) and 13 years (one response). It is interesting
how this seems to fit the study on discernment conducted by PAYO (see the section, Related
Studies).
Role of parents. Seven of the CICL interviewed emphasised the importance of parents talking
and explaining to children why they should behave in a certain way instead of beating them
because, as one boy said, this only leads children to display aggressive behaviour.
Diversion. Seven supported the use of di- . version when dealing with cases of CICL.
Presence of female police. The children felt there should be more female police officers.
Procedure for arrest. Three children said the rights of the child and the reasons for arrest
should be explained immediately upon apprehension. Prevention at the bar ention at the barangay
level. Two children believed that barangay officials and staff have a role in helping children and
keeping them out of jail. It would help if there are more recreational facilities for children of all
ages within the barangay. Children should not loiter on the streets; they are less likely to be on
the streets if they are studying full time. Parallel to this, round-ups of children should not be
allowed to take place.
Procedure in court. Two children suggested . that the court ask the child for his/her side of the
story on what happened, as well as her/his views. They also said that the public should be kept
out of the court.
Custodial care. The need for more funding for custodial places for children especially for food
was also recognised. These facilities should also provide opportunities for children to finish their
studies and gain access to books, conduct open forums (two responses) and provide guidance.
Custody for children was also seen as something that should not be pursued, although one said
that this was all right if the child was really at fault
EFFECTS
https://www.penalreform.org/wp-content/uploads/2013/05/justice-for-
children-briefing-4-v6-web_0.pdf