Lowering age of criminal liability 'threatens children's well-being' Thursday, February 02,

2017 THE United Nations Children's Fund (Unicef), together with the Philippine Legislators'
Committee on Population and Development, Magone Homes Don Bosco and Child Rights
Network (CRN), held a forum Thursday against lowering the minimum age of criminal
responsibility. Under the Juvenile Justice and Welfare Act of 2006, or Republic Act 9334 as
amended by Republic Act 10630, the minimum age of criminal responsibility in the
Philippines is set at 15 years old. As of September 2016, there have been bills filed in the
17th Congress to lower the minimum age of criminal responsibility from 15 years to nine
years old. But Unicef believes that lowering the minimum age of criminal responsibility is
against the best interest of the children and threatens their well-being. CRN also opposed
the proposal, saying it will result in negative consequences for children and the public. It will
increase the number of children in conflict with the law and will more likely become harden
offenders, it said. Lawyer Ma. Margarita Ardivilla, Unicef child protection specialist, said that
according to the Philippine National Police data, the number of crimes committed by
children comprise only of 1.72 percent, wherein most crimes committed are theft, physical
injury, and violations of municipal and city ordinances. She said the children who committed
the crimes are mostly out-of-school youth, street children, those who have fragmented
families, and most likely belong to the lower class of the society. The forum, held at the
Social Hall of Cebu Provincial Capitol on Thursday, February 2, encouraged everyone to
support the campaign against lowering of the minimum age of criminal responsibility and
keep children away from detention by making #ChildrenNotCriminals trend in social media.
The organizers also called on the public to help support them by signing a petition at
www.change.org. (OPM/Sunstar Philippines)

Read more: http://www.sunstar.com.ph/cebu/local-news/2017/02/02/lowering-age-criminal-

liability-threatens-childrens-well-being-523483#
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Punish criminal syndicates, not children -UNICEF

UNICEF Philippines/2008/Viyar
UNICEF Child Protection Specialist
Atty. Albert Muyot, Department of
Social Welfare and Development
Undersecretary Alicia Bala and Bulong
Pulungan Moderator and Philippine
Star columnist Domini Torrevillas
explain the juvenile justice law to
media.

Manila, October 21UNICEF, the UN childrens agency, gathered media personalities today to rally support
for the proper implementation of the Juvenile Justice Law. At todays Bulong Pulungan sa Sofitel, UNICEF
together with the Department of Social Welfare and Development (DSWD), underscored the importance of
understanding the law. This comes amidst new moves proposing to lower the minimum age of criminal
responsibility to nine or ten from 15, largely due to unconfirmed reports that children are being used by
criminal syndicates.

UNICEF is of the view that reducing the minimum age of criminal responsibility is not the solution to the use
of children 15 years or below in the commission of crimes. It will violate the very essence of justice if
children who have been exploited by criminal syndicates are penalized instead of the adults who had
exploited them, Atty. Alberto Muyot, UNICEF Child Protection Specialist said.

The passing of the Juvenile Justice and Welfare Act of 2006 was a landmark that gave many children around
the Philippines a new lease on life. Before the law was passed, thousands of children were detained in adult
jails and treated no differently than hardened criminals. They were exposed to subhuman conditions, not
only to health hazards but also to physical and sexual abuse. Ironically, detention was not even called for as
70% of the children had committed petty offenses and 80% were first time offenders.

Under the new law, most children who commit crimes are sent to community-based programs where they
receive rehabilitation, counseling, skills training, education, and other activities that will enhance their well-
being. Education seminars and microfinancing services for their parents are also offered. These programs
have proven effective in the reintegration of these children into society.

Now that we have a powerful ally in the law, with it comes a greater challenge for us to make our
communities understand its provisions and explain why we need to give these children the opportunity to
grow and develop. Many of them are already being let down by adults. Throwing them in jails is not the
answer, Vanessa Tobin, UNICEF Representative said.

UNICEF helps these children get a second chance by building the capacities of communities and educating
barangay officials, policemen and social workers about the law. It also works with the Juvenile Justice and
Welfare Council to ensure effective implementation. Together with other NGO partners, UNICEF extends
assistance to youth centers where these children receive the care and encouragement they need.

UNICEF statement on calls to lower the age of criminal responsibility

61
MANILA, 22 July 2016 UNICEF is concerned about the efforts to lower the age of criminal responsibility
from 15 to nine years old as proposed in House Bill 002. UNICEF believes that reducing the minimum age of
criminal responsibility (MACR) goes against the best interests of the child and threatens the well-being of
the most vulnerable children.

An effective juvenile justice system puts the rights and welfare of the child at its heart. It seeks to
understand how a child develops and tackles the underlying reasons why they commit crimes. It recognises
the detrimental effects of incarceration on children.

Studies in neurobiology reveal that adolescents brain function reach maturity only at around 16 years old,
affecting their reasoning abilities and impulse control. Research has also shown that children who are in
dysfunctional families and those exposed to violence experience toxic stress which damages the brains
architecture.

Putting children in jail has long-lasting damaging effects on their cognitive, psychosocial and neurological
health; harming their overall development. It further stigmatizes them as criminals and creates an
environment that triggers repeat offense, often extending to adulthood. Children, especially the most
marginalized and at risk, must be treated with a sense of dignity and self-worth. It is a treatment that takes
into account the childs age and promotes the childs reintegration, including his or her assumption of a
constructive role in society. Philippine society must work together to create an environment where the youth
will acquire non-criminal attitudes.

The Philippine Government, as a State Party to the UN Convention on the Rights of the Child, is required to
develop and implement a comprehensive juvenile justice policy. It is a good opportunity for government to
reflect on the challenges in implementing the law, instead of proposing solutions that fail to address the root
cause of the problem.

While there are still areas that need to be improved, including data management, child-oriented local
government programming and budgeting, and multi-sectoral coordination; there has been a steady
improvement of the juvenile justice and welfare system since the Juvenile Justice and Welfare Act was
signed 10 years ago. Local studies show that diversion programmes and other alternatives to detention
reduces offending by up to 70 per cent.

If children who have been exploited by criminal syndicates are penalized instead of the adults who had
abused them, we fail to uphold the rights and well-being of children. If we fail to understand the underlying
reasons why they commit crimes, we fail children.

UNCRC General Comment No 10 referred to above says:

C. Age and children in conflict with the law
The minimum age of criminal responsibility

30. The reports submitted by States parties show the existence of a wide range of minimum ages of criminal
responsibility. They range from a very low level of age 7 or 8 to the commendable high level of age 14 or 16. Quite a
few States parties use two minimum ages of criminal responsibility. Children in conflict with the law who at the time of
the commission of the crime are at or above the lower minimum age but below the higher minimum age are assumed
to be criminally responsible only if they have the required maturity in that regard. The assessment of this maturity is
left to the court/judge, often without the requirement of involving a psychological expert, and results in practice in the
use of the lower minimum age in cases of serious crimes. The system of two minimum ages is often not only
confusing, but leaves much to the discretion of the court/judge and may result in discriminatory practices. In the light
of this wide range of minimum ages for criminal responsibility the Committee feels that there is a need to provide the
States parties with clear guidance and recommendations regarding the minimum age of criminal responsibility.

31. Article 40 (3) of CRC requires States parties to seek to promote, inter alia, the establishment of a minimum age
below which children shall be presumed not to have the capacity to infringe the penal law, but does not mention a
specific minimum age in this regard. The committee understands this provision as an obligation for States parties to
set a minimum age of criminal responsibility (MACR). This minimum age means the following:
{ Children who commit an offence at an age below that minimum cannot be held responsible in a penal law
procedure. Even (very) young children do have the capacity to infringe the penal law but if they commit an offence
when below MACR the irrefutable assumption is that they cannot be formally charged and held responsible in a penal
law procedure. For these children special protective measures can be taken if necessary in their best interests;
{ Children at or above the MACR at the time of the commission of an offence (or: infringement of the penal law) but
younger than 18 years (see also paragraphs 35-38 below) can be formally charged and subject to penal law
procedures. But these procedures, including the final outcome, must be in full compliance with the principles and
provisions of CRC as elaborated in the present general comment.

32. Rule 4 of the Beijing Rules recommends that the beginning of MACR shall not be fixed at too low an age level,
bearing in mind the facts of emotional, mental and intellectual maturity. In line with this rule the Committee has
recommended States parties not to set a MACR at a too low level and to increase the existing low MACR to an
internationally acceptable level. From these recommendations, it can be concluded that a minimum age of criminal
responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable. States
parties are encouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and to
continue to increase it to a higher age level.

33. At the same time, the Committee urges States parties not to lower their MACR to the age of 12. A higher MACR,
for instance 14 or 16 years of age, contributes to a juvenile justice system which, in accordance with article 40 (3) (b)
of CRC, deals with children in conflict with the law without resorting to judicial proceedings, providing that the childs
human rights and legal safeguards are fully respected. In this regard, States parties should inform the Committee in
their reports in specific detail how children below the MACR set in their laws are treated when they are recognized as
having infringed the penal law, or are alleged as or accused of having done so, and what kinds of legal safeguards
are in place to ensure that their treatment is as fair and just as that of children at or above MACR.

34. The Committee wishes to express its concern about the practice of allowing exceptions to a MACR which permit
the use of a lower minimum age of criminal responsibility in cases where
the child, for example, is accused of committing a serious offence or where the child is considered mature enough to
be held criminally responsible. The Committee strongly recommends that States parties set a MACR that does not
allow, by way of exception, the use of a lower age.

35. If there is no proof of age and it cannot be established that the child is at or above the MACR, the child shall not
be held criminally responsible (see also paragraph 39 below).
The upper age-limit for juvenile justice

36. The Committee also wishes to draw the attention of States parties to the upper age-limit for the application of the
rules of juvenile justice. These special rules in terms both of special procedural rules and of rules for diversion and
special measures should apply, starting at the MACR set in the country, for all children who, at the time of their
alleged commission of an offence (or act punishable under the criminal law), have not yet reached the age of 18
years.

37. The Committee wishes to remind States parties that they have recognized the right of every child alleged as,
accused of, or recognized as having infringed the penal law to be treated in accordance with the provisions of article
40 of CRC. This means that every person under the age of 18 years at the time of the alleged commission of an
offence must be treated in accordance with the rules of juvenile justice.

38. The Committee, therefore, recommends that those States parties which limit the applicability of their juvenile
justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16 or 17-year-
old children are treated as adult criminals, change their laws with a view to achieving a non-discriminatory full
application of their juvenile justice rules to all persons under the age of 18 years. The Committee notes with
appreciation that some States parties allow for the application of the rules and regulations of juvenile justice to
persons aged 18 and older, usually till the age of 21, either as a general rule or by way of exception.

39. Finally, the Committee wishes to emphasize the fact that it is crucial for the full implementation of article 7 of CRC
requiring, inter alia, that every child shall be registered immediately after birth to set age-limits one way or another,
which is the case for all States parties. A child without a provable date of birth is extremely vulnerable to all kinds of
abuse and injustice regarding the family, work, education and labour, particularly within the juvenile justice system.
Every child must be provided with a birth certificate free of charge whenever he/she needs it to prove his/her age. If
there is no proof of age, the child is entitled to a reliable medical or social investigation that may establish his/her age
and, in the case of conflict or inconclusive evidence, the child shall have the right to the rule of the benefit of the
doubt.
 STATES LOWERING AGE OF CRIMINAL
RESPONSIBILITY (CHILD RIGHTS INTL
NETWORK)
CRIN has collected worrying evidence that a growing number of States in all regions, far from
fullfilling their legal obligations to respect the rights of all children, are moving backwards in their
approach to juvenile justice and criminalising more and younger children.

Join CRIN's debate on how to stop making children criminals.

Countries that have lowered the minimum age of criminal responsibility

Denmark
In June 2010, the minimum age of criminal responsibility (MACR) was reduced from 15 to 14 years.
This change was criticised in the:

CRC Concluding Observations of 2011: "The Committee expresses its deep concern on... the
lowering of the age of criminal responsibility from 15 years to 14 years" (para. 49.b).

Universal Periodic Review of 2011.

Denmark subsequently raised the MACR to 15 in March 2012.

Georgia
Criminal Code of Georgia, article 33, contains these provisions setting the MACR:

CRC Concluding Observations, June 2008: "The Committee deeply regrets the decision of
the State party to lower the MACR from 14 to 12" (para. 72).

State's response to questions of the CRC, June 2008: criminal responsibility was lowered
with respect to "deliberate murder; deliberate murder in aggravating circumstances; deliberate grave
injury to health; deliberate less grave injury to health; rape; robbery; armed robbery; carriage of a
cold steel by a person who has not attained 21 years or a person with previous conviction or a person
convicted under administrative law for using drugs".

The State reinstated the MACR at 14 years in February 2010.

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.
 CRC Concluding Observations, 2014: The Committee on the Rights of the Child
criticised the change and recommended that Hungary increase the minimum age of
criminal responsibility to 14 for even the most serious offences.

Panama
Articles 2 and 4 of Law No. 6/2010 reduced the MACR from 14 to 12.

CRC Concluding Observations, 2011: This change was criticised by the Committee who
"recommends that the state bring the juvenile justice system fully in line with the Convention (by)
Increasing the age of criminal responsibility" (para. 76.a).

Countries that have considered, or are considering, lowering the age of

criminal responsibility

Argentina
The Minister for the Supreme Court, Dr. Raul Zafrroni, proposed lowering the age of criminal
responsibility from 16 to 14. As of March 2011, the proposal had not resulted in legislation - read
"Fourteen: The age of responsibility?".

The Minor's Penal Law 22,278 is the relevant legislation.

There was no mention of lowering the MACR in the CRC's Concluding Observations, June
2010.

Bolivia
In July 2014, lawmakers approved the new Children and Adolescents Code which lowers the MACR
from 16 to 14. The Code is awaiting promulgation, pending possible amendments in relation to the
lowering of the MACR. The Bolivian ombudsman criticised the measure, saying that in responding
to public security concerns by lowering the MACR the State has chosen to avoid its obligations to
combat the socio-economic root causes of criminality - read "Defensor afirma que disminuir la edad
de imputabilidad vulnera derechos de adolescentes y es una medida regresiva y deshonesta".

Under Article 201.i. of the Code: "A specialised justice system for adolescents
found criminally responsible shall be applied to adolescents from the age of 14 and
under the age of 18, charged with the commission of an act that is classed as an
offence."

Brazil
A legislative commission approved a proposed amendment to the Constitution which aimed to lower
the MACR from 18 to 16. The approval required the Senate and Parliament to consider the
amendment, but it has not been passed.

Under article 228 of the Brazilian Constitution: "Minors under eighteen years of age may not
be held criminally liable and shall be subject to the rules of the special legislation".
 As a Constitutional right it would be at least very difficult to amend the MACR, one
commentator indicated that it may not be possible, even by Constitutional amendment - read "Brazil
criminal responsibility of minors in national and international legal orders".

France
In June 2011, French Parliamentarians voted on a new law in the National Assembly introducing a
reform of the juvenile justice system. The law provides for the creation of a criminal court with a
juvenile judge to adjudicate on recidivist offenders aged 16 to 18 years. The law also introduces new
procedures for faster prosecution. The law was largely criticised by civil society as it represents a
regression of juvenile justice and puts in danger the specificity of the justice system for minors - read
"Rforme de la justice des mineurs en examen au snat".

The law (No. 2011-939) was published in the Official Gazette in August 2011 and came into
force in early 2012.

India
The Juvenile Justice (Care and Protection of Children) Act 2015 received presidential assent on 31
December 2015 and entered into force on 15 January 2016. According to sections 15 and 18(3) of the
Act, children aged 16 to 18 who are alleged or found to have serious offences can be transferred to
the adult system.

Korea, the Republic of

A proposal emerged in 2007 from the Ministry of Justice to lower the MACR from 12 to 10 - read
"Plans to lower age of criminal responsibility attacked".

It seems that the proposal never reached the legislative stage. The CRC made no reference to
the reform in its Concluding Observations, February 2012.

Relevant legislation: The Act on the Treatment of Protected Juveniles and the Juvenile Act
were both amended in 2007, but the changes did not affect the MACR.

Mexico
The State of Nuevo Len was considering lowering the MACR to 12 in July 2011.

Peru
In May 2012, the centre-left Aprista Party presented Congress with a draft bill that aims to amend
articles 20 and 22 of the Penal Code on the MACR, to lower it from 18 to 16 for "serious crimes",
including homicide, kidnapping, theft, rape, extortion and conspiracy - read "Proponen que
adolescentes desde los 16 aos asuman responsabilidad penal".

Under current legislation (article 20 of the Penal Code), all persons under 18 are exempt from
criminal responsibility, except in cases of acts of terrorism, for which the age of criminal
responsibility is 15.
 Philippines
House Bill 3370 was filed in February 2008 to lower the MACR from 15 to 10 - read "Phillipines:
bid to lower age of criminal responsibility". The issue was raised again in 2010 and in September
2011 - read "Mayo Lim, Manila judges favor criminal liability for minors". In October 2013, a
finalised version of the bill was signed into law which retained the MACR at 15 and provided that
children aged over 15, but under 18, are also exempt from criminal liability unless they have "acted
with discernment".

Relevant law: the Juvenile Welfare Act (Republic Act 9344) was adopted in 2006 and raised
the MACR from 9 to 15 years. Amendments made in 2013 retained this MACR, but introduced
mandatory measures that amount to deprivation of liberty for children under the age of 15 who
commit serious crimes - read "Aquino inks laws prootecting juveniles, animals".

Russian Federation
The State Duma Committee for Constitutional Law and State Development is currently drafting a bill
that would lower the MACR from 16 to 14 for certain crimes, and from 14 to 12 for crimes including
homicide, kidnapping, burglary and rape - read "Duma suggests lowering criminal liability age to
12".

Spain
A proposal arose in July 2009 following the rapes of two young girls by a group of 12 and 13 year
olds. The Minister of Justice released a statement stressing that he opposed lowering the age of
criminal responsibility from 14 to 12 in September of that year - read "Government refuses to lower
the age of criminal responsibilty from 14 to 12".

There was no mention of lowering the MACR in the subsequent CRC Concluding
Observations, September 2010.

Uruguay
Uruguay scheduled a referendum on whether to lower the minimum age of criminal
responsibility from 18 to 16. The proposal was rejected in October 2014 due to a lack of votes in
favour.

THOMAS HAMMARBERG ON JUVENILE

CRIME: IT IS WRONG TO PUNISH CHILD
VICTIMS
In a Viewpoint on juvenile crime, Commissioner Thomas Hammarberg argues that young offenders
should be treated in the spirit of the UN Convention on the Rights of the Child, and authorities
should be seeking family-based or other social alternatives to imprisonment.
[8 January 2007] 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.

Though the message of the UN Convention on the Rights of the Child is that criminalisation of
children should be avoided, this does not mean that young offenders should be treated as if they had
no responsibility. On the contrary, it is important that young offenders are held responsible for their
actions and, for instance, take part in repairing the damage they have caused.

It is in the sanction process that we find the difference to an ordinary criminal procedure. In juvenile
justice there should be no retribution. The intention is to establish responsibility and, at the same
time, to promote reintegration. This requires innovative and effective community sanctions.

In principle, the offenders parents or a legal guardian should be involved, unless this is deemed
counter-productive for the rehabilitation of the child. Whatever the process, there should be a
possibility for the child to challenge the accusations and even to make an appeal.

Slovenia has introduced an interesting procedure for "settlements". There, a case of an accused
juvenile can be referred to a mediator if this is agreed by the prosecutor, the victim and the accused.
The mediator then seeks to reach a settlement which would be satisfactory to both the victim and the
accused and a trial can thereby be avoided.

One aspect should be further stressed: the importance of a prompt response to the wrongdoing.
Delayed procedures - which is a problem in several European countries today - are particularly
unfortunate in the case of young offenders, whose bad actions should be seen as a cry for immediate
help.

The UN Convention asks for separate procedures for juveniles who are brought to court. These
should be child-friendly and, again, the purpose is rehabilitation and reintegration rather than to
punish for the sake of retribution. For this to work, there is a need for everyone involved, including
judges and prosecutors, to be educated not only about the law, but also about the special needs of
children.

A child in that situation is sometimes more a victim than an offender. The social background is often
tragic. This points to the immense importance of early detection and preventive measures. The
judicial body is the last link of the chain, we should try to do everything we can to prevent cases
coming that far.

Support to families at risk, decisive reaction on signs of domestic violence, social workers with
outreach capacity, neighbourhood networks and a school which not only teaches but also cares for
every individual child - these are key components of a preventive strategy. The young persons
themselves should of course be involved in these efforts and not be considered as mere objects of
socialisation and control.

Arrest, detention and imprisonment are in principle possible for minors above the minimum age of
criminal responsibility, but should be used "only as a measure of last resort and for the shortest
appropriate period of time", as the UN Convention says. This is in the spirit of child rights, but we
also know that depriving children of their liberty tends to increase the rate of re-offending. The only
reason for locking up children is that there are no other alternative ways to deal with the immediate
risks to others.

Such detentions should take place in specific and children-friendly establishments, where young
offenders are separated from adult prisoners and, in particular, from hard-core criminals. Contact
with the family should be encouraged and facilitated, if that is in the best interests of the child. In
general, the conditions should be humane and take into account the special needs of an individual of
that age.

Full-time education is particularly essential. Each young offender should be given an individual
programme of rehabilitation, a plan that should continue after the detention period with the support
of guardians, teachers and social workers. If relations with the parents are impossible, foster
parenting might be an alternative. In all this, the child - him or herself - should have a say, this is not
only a right but also a more effective solution.

These are the principles developed within different parts of the Council of Europe, in cooperation
with experts from different countries. The European Committee of Social Rights has argued for a
higher age of criminal responsibility and the European Committee for the Prevention of Torture -
which pays visits to places of detention - has expressed its concern about the imprisonment of
children and their conditions.

The European and international standards are indeed clear, but they are not widely known. This is
unfortunate because they are highly relevant to the discussions in member states, where the cry for
"tougher methods" is now increasingly heard.

The Europe we want to build for and with children should include those children who have had a bad
start in life.

Thomas Hammarberg

THOMAS HAMMARBERG: CHILDREN

SHOULD NOT BE TREATED AS
CRIMINALS
There is a disturbing trend in Europe today to lock up more children at an earlier age. The age of
criminal responsibility is already very low in some countries, such as the United Kingdom.
Suggestions to lower the age limit to 12 years old have recently been made in France, while a similar
law has been adopted in Georgia. In my opinion the time has come to move the argument away from
fixing an arbitrary age for criminal responsibility and find a more childfriendly solution to juvenile
justice.
A caring society responds promptly, resolutely and fairly to juvenile offences. Juveniles are certainly
not helped by a laissez-faire response if they violate the law. It is imperative that young persons are
taught to take responsibility for their actions.
However, experience has shown that criminalisation, and in particular imprisonment, tends to
undermine efforts to assist juveniles in reintegrating positively into the community. Criminalisation
and periods spent in juvenile detention centres may have the reverse effect of turning these juveniles
into adult criminals.
Young offenders are children first and foremost and should be protected by all the agreed human
rights standards for children. This is one of the messages of the United Nations Convention of the
Rights of the Child (CRC) which calls for a separate system of justice for children. Under the
CRC, which has been ratified by all European countries, children are defined as those who are under
18 years old.
This point has been stressed by the European Network of Ombudspersons for Children (ENOC) in a
position statement issued in 2003. These experts urged States to review their juvenile justice
systems against the requirements of the CRC and European human rights instruments.
We need to separate the concepts of responsibility and criminalisation. It is essential to establish
responsibility for conduct which contravenes the law. Where responsibility is disputed, there has to
be a formal process to determine responsibility in a manner which respects the age and the capacity
of the child. However, this does not have to be a criminal process nor involve the criminalization of
children.
Once the facts of an offence are established, there would need to be a multi-disciplinary assessment
of what is required to ensure awareness of the offence by the child. Such an assessment would also
determine how best to respond to the needs of the victim and prevent the child from re-offending.
Such measures would, where necessary, be compulsory. The proceedings would not identify the child
publicly and would not be formally linked to the adult criminal justice system.
Imprisonment should generally be avoided. Any arrest or detention of a child should only be used as
a measure of last resort and for the shortest appropriate period of time. The only justification for
detaining children should be that they pose a continuing and serious threat to public safety. This
requires frequent periodic review of the necessity of detention in each case. The conditions of any
detention must be humane and focused on rehabilitation. Schooling should be provided as set out in
the 2008 European Rules for Juvenile Offenders.
In many of my assessment reports, I underline the importance of keeping juveniles separate from
adult offenders. A recent judgment of the European Court of Human Rights against Turkey highlights
the possible dire consequences of not respecting that important principle.
Guidelines on child-friendly justice are currently being discussed within the Council of Europe. The
debate on the reform of the juvenile justice system should include the desirability of avoiding
criminalisation and putting the best interests of the child at the forefront of the discussion.
In promoting such policies and procedures which respect the human rights of young offenders, the
rights and concerns of victims are not neglected. Victims must receive appropriate reparation and
support from the State. But victims interests and those of the wider society - are not served by a
system which fails to rehabilitate offenders.
During my visits to European countries I have met a number of juvenile inmates in prisons and
detention centres. Many of them have suffered neglect and violent abuse within their own families
and have received little support from society at large. Understanding the origins of violence and
serious offending in children does not mean condoning or sympathising with it.
An effective and humane policy would put strong emphasis on prevention. Social workers are more
important than prison guards in this context. Certainly, broader reforms for genuine social justice
have to be part of a strategy to tackle the problem of youth offending.
Unfortunately, this has not been the focus of the public debate in several countries. Instead, peoples
justified concerns about juvenile behaviour have been exploited for populist political purposes:
children and young persons have been demonised and described as major threats to society.
The CRC encourages a minimum age to be set for criminal responsibility. Below such an age, it is
presumed that a child does not have the capacity to infringe the penal law. Children in Scotland can
be held criminally responsible at the age of eight years old. In England, Wales and Northern Ireland
the minimum age is 10. In many of the Nordic countries the age for criminal responsibility is set at
15 and in Belgium it is 18 years old. The Council of Europes European Committee of Social
Rights (which monitors State compliance with the European Social Charter), the UNs Committee on
the Rights of the Child and other UN Treaty Bodies have all recommended substantial increases in a
number of member states.
I would like to move the debate on from fixing an arbitrary age for criminal responsibility.
Governments should now look for a holistic solution to juvenile offending which does not
criminalise children for their conduct.
The United Nations Guidelines for the Prevention of Juvenile Delinquency, while adopted 19 years
ago, still provide the right benchmark. Labelling a young person as deviant or delinquent or pre-
delinquent often contributes to the development of a consistent pattern of undesirable behaviour by
young people.
Yes, it is in all our interests to stop making children criminals. We should therefore treat them as
children while they are still children and save the criminal justice system for adults.

State vs Child: Lowering the age of criminal responsibility

August 22, 2016
One of the legislative priorities of the Duterte administration is the amendment of the
Juvenile Justice & Welfare Act or RA No. 9344 by lowering of the age of criminal
responsibility. Significantly, House Bill No. 2 or the Minimum Age of Criminal Responsibility
Act, which seeks to revert the minimum age of criminal responsibility from fifteen (15) years
of age to nine (9) years of age, was recently filed with the House of Representatives.

According to the authors of House Bill No. 2, the present law has resulted in the
pampering of youth offenders who commit crimes knowing they can get away with it.

To recall, the Revised Penal Code pegged the minimum age of criminal responsibility at
nine (9) years of age. In 2006, or more than 70 years after the Revised Penal Code took
effect, RA No. 9344 was passed. Under RA No. 9344, [a] child fifteen (15) years of age
or under at the time of the commission of the offense shall be exempt from criminal
liability...[a] child above fifteen (15) years but below eighteen (18) years of age shall
likewise be exempt from criminal liability... unless he/she acted with discernment. The
child exempted from criminal liability shall, however, be subjected to a government
intervention program.

The passage of RA No. 9344 was then considered a landmark legislation and a
milestone in the promotion of childrens rights, particularly rights of children in conflict
with the law, as it also established a comprehensive juvenile justice and welfare system.

In 2013, RA No. 9344 was amended by RA No. 10630 to penalize, among others, the
exploitation of children for the commission of crimes. Under Section 20-C of RA No.
10630, [a]ny person who, in the commission of a crime, makes use, takes advantage
of, or profits from the use of children, including any person who abuses his/her authority
over the child or who, with abuse of confidence, takes advantage of the vulnerabilities
of the child and shall induce, threaten or instigate the commission of the crime, shall be
imposed the penalty prescribed by law for the crime committed in its maximum period.

Despite the criminalization of the exploitation of children and the imposition of the
maximum penalty for the crime on persons who employ children to commit crimes,
however, calls to lower the age of criminal responsibility continue as reports of children
committing crimes increase. Some have questioned the wisdom behind RA No. 9344, as
amended, because crime syndicates allegedly exploited the exemption from criminal
liability accorded to children and employed children as accomplices in the commission
of crimes.

On the other hand, some groups oppose lowering the age of criminal responsibility
claiming that such will violate international law and treaties, which the Philippines is a
signatory.

What legal matters need to be considered in this issue?

In crafting any legislation setting the minimum age of criminal responsibility and
providing for a juvenile justice system, lawmakers should uphold the Constitution, which
declares that the State shall promote and protect [the youths] physical, moral,
spiritual, intellectual, and social well-being and that the State shall defend the right of
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.

In addition, lawmakers should also uphold the Philippines obligations under

international laws and treaties, which include, the United Nations Convention on the
Rights of the Child (UNCRC), the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice or Beijing Rules, the United Nations Guidelines for the
Prevention of Juvenile Delinquency or the Riyadh Guidelines, United Nations Rules for
the Protection of Juvenile Deprived of Liberty, and the United Nations Guidelines for
Action on Children in the Criminal Justice System. Under the foregoing, the Philippines
has committed itself to take all appropriate measures to ensure that the child is
protected against all forms of discrimination or punishment on the basis of the status,
activities, expressed opinions, or beliefs of the childs parents, legal guardians, or family
members.

Interestingly, though the UN Guidelines for Action on Children in the Criminal Justice
System defines juvenile as every person under the age of 18, it also states that the
age limit below which it should not be permitted to deprive a child of his or her liberty
should be determined by law. Article 40 (3) (a) of the UNCRC likewise states that
States Parties shall seek to promote the establishment of laws, procedures, authorities
and institutions specifically applicable to children alleged as, accused of, or recognized
as having infringed the penal law, and, in particular, ... [t]he establishment of a
minimum age below which children shall be presumed not to have the capacity to
infringe the penal law. Thus, the establishment of the minimum age by which criminal
responsibility attaches is left to the decision of the respective States legislature.

To summarize, while the Philippines maintains the right to decrease the minimum age
of criminal responsibility in accordance with international legal parameters and
imperatives, it should be mindful of its implications on children in conflict with the law.

______________________

http://attylaserna.blogspot.com/2010/05/juvenile-justice-in-philippines.html#

Juvenile justice in the Philippines

Source: http://www.judgesandmagistrates.org/murd.htm

JUVENILE JUSTICE IN THE PHILIPPINES -

A PERSONAL EXPERIENCE (ABSTRACT)

Marianne Murdoch-Verwijs, LLM (Free University, Amsterdam)

BACKGROUND ON JUVENILE CRIME AND THE LEGAL SITUATION IN THE PHILIPPINES IN THE
EARLY 1990s

The problems of street children and juvenile delinquents are much related social problems. To survive in
the street you almost have to become delinquent. Exposed to criminal elements these children are
vulnerable to prostitution, drug addiction and pushing and commission of crimes. Most street children
have become juvenile delinquents either out of necessity (because they are poor) or through force
(because of the syndicates). Young people in the streets are also criminalized and stigmatized for no
obvious crime committed. So many times the streets were cleaned up at the start of the tourist season
and as a consequence many street children were jailed because of vagrancy laws.

A large problem arose from the treatment accorded to the juveniles when they were placed in jails. Most
juvenile delinquents were not segregated from the hardened adult criminals in the biggest jails in the
Philippines, such as in the Muntinlupa jail outside Manila, so that after their release they went back in the
street with more knowledge of crime. This severely hampered the social integration of the youth offenders
after they left prison. Chances were high that these young offenders would become chronic delinquents
and eventually hardened criminals.
Presidential Degree 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.

Before Marcos time the Juvenile and Domestic Relations Courts provided a unique form of adjudication to
youthful offenders and disposal of family cases. It was effective in administering justice, because the
methods were not adversarial, but it was oriented to rehabilitation. It viewed the minor as a victim not as
an aggressor. It undertook the reformation of the youth with the purpose of integration of him or her into
mainstream society.

However, on January 17, 1980 the Judiciary Reorganization Act or Batasang Pambansa 129 abolished
the Juvenile and Domestic Relations Courts. Section 23 of that law authorized the Supreme Court to
designate certain branches of the Regional and Municipal Courts to act exclusively on juvenile and
domestic relations cases. However, these courts functioned also as courts of general jurisdiction which
meant that separate proceedings for youthful offenders were not possible. This in spite of the fact, that the
Philippines had signed all the International Treaties concerning the rights of children.

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 (1).

Under Pilipino law, article 189 of Presidential Decree 1179, a youthful offender is over nine but under
eighteen years of age of the time the offence is committed. Children under the age of nine are exempt
from criminal responsibility and those between nine and fifteen are liable only if they are able to
demonstrate discernment, which is a level of intellectual maturity including the ability to distinguish right
from wrong.

There are seven penitentiaries in the Philippines. Two of them are in Metro Manila, two elsewhere in
Luzon, one in the Visayas and two in Mindanao. As of November 1992, these penitentiaries had a total of
14,007 inmates. More than half of them (or 7,717) were at the Bilibid Prison in Muntinlupa, Metro Manila,
which is the most crowded. There were 72 provincial jails, one for every province, in the country. There
are 60 city jails and 1,506 municipal jails all over the country. The conditions in these jails and
rehabilitation centres were deplorable. The worst one was the rehabilitation centre named the Molave
Youth Center. According to PAHRA (2), the Molave Youth Home suffered from a 67% rate of congestion.
Its ideal capacity was only 100 yet an average of 167 offenders was being housed there.

MY CALL TO ACTION

Many rights of the youth were not adequately protected by the State, although the Philippines had signed
all the International Treaties concerning childrens rights including:

- UN Convention on the Rights of the Child which had been ratified in the Philippines on July 1990 and
become effective on September 2 1990

- Beijing Rules
- The Riyadh Guidelines
- The United Nations Rules for the Protection of Juveniles Deprived of their Liberty.

The following were some examples of rights infringed by the State of the Philippines:

- The criminal justice system provides inadequate rehabilitation and mostly punishes criminal behaviour of
youth. However the international treaties, for which the Philippines was a signatory, put emphasis on the
fact that children should not be detained in jails and in exceptional cases, if they are detained, then only
for a very short time. Because of lack of funds there are still not enough programs for education,
vocational training and rehabilitation centres.

- Young offenders, many of them first offenders were mixed with professional, hardened criminals,
thereby turning jails and prisons into schools of criminality. In Camp Sampaguita only 23.53% were
detained in separate cells for minors (3). This non-segregation can be one reason why the numbers of
street children and crimes were rising.

- Inadequate health care (often totally absent) and subhuman conditions in the jails and prisons
condemned many a young inmate to an early death or to inflict irreparable harm to their physical and
mental health (4).

- While the State as Parents Patriae was expected to offer and to give special care to its young offenders,
it instead negligently allowed a number of young people to enter the gates of jails and prisons with the
least amount of legal protection during the litigation process. There were no juvenile courts, lawyers,
psychologists, probation officers who were specialized in dealing with the youth.

- Children in conflict with the law were serving stiff sentences, doing time over and above their sentence,
awaiting action on their appeal for too long a time with no hope of being attended to soon. Often they
were unable to avail themselves of the benefits of pardon or parole due to lack of knowledge about these
options.

- The resolution of cases in the courts was extremely slow and often unfinished. For example, for every
100 criminal proceedings 36 were resolved and 64 remained pending. As most young detainees had no
money to obtain bail this contributed to overcrowding in the prisons. Another contributing factor to the
congestion of jails and detention centres was the lack of the Juvenile and Domestic Relations Court as it
had been abolished which increased the backlog of untried cases.

- A danger at that time was also the reintroduction of the death penalty. Some of the young inmates could
get this sentence if they had reached the adult age when on trial (5).

To address the problems of juvenile justice, I focused on:

a) Provision of legal advice to youth offenders and improve the education of aspiring lawyers.

b) Improved Legal protection of youth offenders

AKAP (Adikain Para sa Karapatang Pambata) (Ateneo Human Rights Center)

In 1993, there was no organization that provided legal attention to young offenders who were generally
more vulnerable in an already corrupt judicial system. All the NGOs for children were concentrating on
street children but no attention was given at all to children in conflict with the law. Most NGOs were
unaware of the problem as it was generally impossible to enter the jails and prisons to identify the
problems (6).

At that time there were no juvenile courts, lawyers, psychologists, probation officers available who were
specialized in dealing with youth offenders. Police was totally untrained in how to deal with the young
ones.

As a first step to provide legal attention to young offenders, a legal desk for children, AKAP, was
established in November 1993 at the Human Rights Center of the University of Ateneo.

This desk focused on:

- The continuing formation of human rights lawyers especially in the field of children in conflict with the
law.
- The monitoring of the human rights situation in the Philippines and abroad.
- Human rights research, education, and publications.
- Legal assistance to indigent victims of human rights violation.

This desk was the first one of its kind in the country after Marcos had abolished legal aid to children. With
this desk legal assistance could be given to young offenders. A programme to train childrens advocates
through special courts in Child Law was introduced. Having the legal desk at the University raised the
awareness of the problems of the children in conflict with the law to the law students who came mostly
from the upper and middle classes.

PAYO (Philippine Action for Youth Offenders)

It is very hard for developing countries to improve a juvenile justice system, when they are already
struggling with scarce resources. Therefore it is important to do the networking and the coalition of NGOs
as each one of them has the money needed to start and make changes. When the State has not the
authoritative power to change the status quo then, maybe the individual or an NGO does. Among the rich
Filipinos there were always people with a golden heart to help their poor fellowmen with continuous
fundraising. Some of these rich families were even prepared to give land away for building houses for the
underprivileged of their society. Besides Filipinos helping other Filipinos, many foreigners gave much
voluntary aid to develop the country.

During the time President Ramos was in office, a group, of which I was a founder, called PAYO (Philippine
Action for Youthful Offenders) was established on 9 December 1993 as a national coalition of
organizations, government agencies and individuals working for the protection of the rights and welfare of
youthful offenders and children in conflict with the law.

PAYO was set up to do the following:

- Lobby for the improvement, implementation and promulgation of legislations/laws and other related
measures which would protect and benefit the youth offenders.

- Pursue and intensify a continuing public information and education campaign to the public on the rights
and situation of the young offenders.

- Coordinate all efforts and services of non-government organizations, government agencies and
individuals willing to work for the rights of the youth offenders and work for the improvement of their
conditions.

The first action of PAYO was to ask for:

- Legislation to create and restore the defunct juvenile delinquent court which was abolished by Batas
Pambansa Blg., otherwise known as the Judiciary Reorganization Act of 1980 by President Ferdinand
Marcos.

- Reintroduction of the Juvenile Courts.

- Segregation of the children from the adults in jails and prisons.
-- Education of police, correctional and rehabilitation staff, especially guards, about the rights of children
in conflict with the law.

PAYO would primarily focus on assisting children below 18 years old who were in conflict with the law
including those already detained or imprisoned. At the same time this organization would assist those who
were children when imprisoned but who reached the age of 18 while in prison. Children had to be ensured
that when in jail they are informed and educated about their Human Rights as children and as individuals.
PAYO MADE A DIFFERENCE

NGOs that previously did not work together now started to do so. Through the coordination of 30 NGOs
together with the help of UNICEF, WHO and the Social Welfare Department, Justice Department,
previous child judges, senators and other politicians more legal aid for youth offenders was provided and
PAYO succeeded in getting the Family Courts Act enacted by Congress on 28 July 1997 and signed into
law by President Ramos as Republic Act 8369 on 28 October 1997.

On the basis of several research studies by the different NGOs, PAYO made a difference and impact on
the general prevalence and types of crime. The number of streetchildren declined from a high of
1,500,000 to around 20-40,000 (7). The number of delinquents, which had risen from 3,817 in 1987 to
6778 in 1989 (1), has fallen to around 2000 since the formation of PAYO.

As a result of PAYO, the Philippines now have a wider range of national executive orders and laws
implemented providing for the welfare and protection of youth in conflict with the law:

- Child and Youth Welfare Code (PD 603).

- Dangerous Drug Act of 1972.
- Republic Act 7610. The Special Protection of Children against Child Abuse, Exploitation and
Discrimination Act 1992.
- Republic Act 83369 of 1997, an act establishing family courts, granting them exclusive original
jurisdiction over child and family cases.

Without these legal provisions it was impossible to change the situation of youth in conflict with the law
especially those on death row. Once the Act for the protection of children rights was established, children
in conflict with the law were segregated from adults in the prisons. Furthermore legal aid could be given
immediately where it was needed. Those who were on death row were the first ones to be helped.

PAYO took also care that a police manual was published and that the police force got training sessions as
well. Child and Youth Relations Officers now exist within some police stations with the responsibility to
ensure that child suspects are treated appropriately as set out in the special regulations.

CONCLUSION

In developing countries like the Philippines, the reality contradicts what the law is describing. In the
Philippines, the individual is blamed for his wrongdoings. And yet not much is done by the state to correct
structural inequality of the classes, overpopulation and the corruption of politicians and the judiciary. No
drastic changes are being made by the state for the betterment of the individual, so the status quo
remains. If the state is not prepared to help juvenile delinquents surely the crime rate will rise, because
they are learning from the adults in the prison. Furthermore the problem of AIDS will increase. The
solution to the problem of controlling juvenile delinquency is not incarceration but good education and
vocational training thus emphasizing prevention and rehabilitation.

When we are dealing with children in conflict with the law, we are dealing with children who had a bad
start in life with circumstances and experiences very difficult to accept. The state has the obligation
according to articles 4 of the United Nations Convention on the Rights of the Child to protect all children
and to translate all rights in the Convention into reality. So when we are talking about children in conflict
with the law we are not only appealing to articles 37, 39 and 40, but to all articles of this Convention. Now
the main legal protection for underprivileged youth is implemented in the Philippines, the Government of
this country has the obligation to show the world its role as a true protector of human rights. A constructive
social policy for all young people will help in the prevention of juvenile delinquency with emphasis on free
education. Many who are abandoned, neglected, abused, exposed to drug abuse are in marginal
circumstances and are in general at social risk. Those should have the immediate attention of the
authorities and NGOs.
There should be a move away from institutionalization and children, in their best interest, should be
rehabilitated as early as possible and integrated back into society, so that they can play a constructive
role. For those who have become hardened criminals as young as they are, there can not be another way
of living. For them miracles of change are only possible when a religious aspect is brought into their live
as we can witness from the book about Father Tritz (8) published by the International Labour Organization
and from my own field experiences.

When we are dealing with the problem of juvenile justice, we have to be aware that in most countries in
this world the local NGOs and governments spend much money for the solution of the problem of street
children, however little or none for children in conflict with the law. Government and NGOs in general are
not aware of the fact that the problem of street children and children in conflict with the law are related
social problems.

We have to also put the emphasis on the problem of the disease of AIDS, since prisons and jails are a
hearth for getting this disease. The disease of AIDS is at this moment the most frightening and
devastating disease in this world and in this century. It is pandemic in developing world particularly in
Africa and South-Asia. In prisons HIV spreads with frightening efficiency due to sexual abuse, lack of
access to condoms, lack of harm reduction measures for drug users and most of all lack of information. It
is of the utmost importance for the world to understand that children in conflict with the law always have to
be separated from the adult prisoners. All children have a right to ask for total protection by the State and
the world as these rights are described in the United Nations Convention on the Rights of the Child.

Statement from the Child Justice Advocacy Group The Child Justice Advocacy Group
calls on the government of the Philippines to reject proposals to lower the minimum
age of criminal responsibility We the undersigned civil society organisations, call on
the Senate and Government of the Philippines to refrain from adopting reforms to
lower the age of criminal responsibility from 15 to nine. This reform would be an
abdication of the Philippines commitment under the UN Convention on the Rights of
the Child and would not be an effective way of addressing crime committed by
children. The Committee on the Rights of the Child has called on States to
progressively raise the age of criminal responsibility, and has made it clear that a
minimum age of criminal responsibility of nine is not internationally acceptable. We
add our voices to the growing condemnation of the proposed reforms, including
from the Committee Against Torture,1 UNICEF2 and a growing consensus among
civil society organisations and justice experts. Allowing children so young to be held
criminally responsible will not achieve the aims claimed by supporters of the bill and
ignores the evidence of what effectively reduces crime among children: diverting
them from the criminal justice system, avoiding detention and focusing on
measures such as restorative justice. This is a reform that can only serve to draw
more children into the criminal justice system. We also express our extreme concern
that the protection of children is being used as a pretext by supporters of the death
penalty and reject baseless claims made by supporters of these bills that the
imposition of capital punishment for adults provides any protection for children. As
the Senate holds hearings on these reforms, it has the opportunity to reject
regressive measures that will do nothing to reduce crime committed by children. We
urge you to refrain from enacting these reforms, which are a clear violation of the
commitments the Philippines has made under international law.
TRENDS AROUND THE WORLD IN LOWERING THE MINIMUM
AGE OF CRIMINAL RESPONSIBILITY (MACR)
ne of the most contentious issues in juvenile justice policy is
determining the minimum age of criminal responsibility (MACR).
There is a large variation around the world on what the
appropriate age is, and even within nations differences exist
depending upon the nature of the crime and the jurisdiction. In
Iran the age is different for each sex, with girls being held
responsible at age nine and boys at age fifteen.

The United Nations, through the Committee on the Rights of the Child, stated in a
2007 general comment, Childrens rights in juvenile justice states that a
minimum age of criminal responsibility below the age of 12 years is considered
by the Committee not to be internationally acceptable. Despite many years of
effort there is little consensus around this issue.

In the Philippines, as reported in The Manila Bulletin, there is a movement in the

legislature to lower the MACR from fifteen to twelve. The move has been heavily
criticized by the Juvenile Justice and Welfare Council, which oversees
implementation of a 2006 reform law that places the nation in the vanguard of
Asian progress on juvenile justice issues. The law, the first of its kind in Asia,
was explicitly passed to bring the country closer to its obligations as a signatory
of the United Nations Convention on the Rights of the Child and, pursuant to the
provisions of the Philippine Constitution and Philippine special laws protecting
children, supporters of the law contend that the efforts are a knee jerk reaction
to a rising crime rate.

In the United States, one of only two nonsignatory nations of the Convention on
the Rights of the Child, the situation is even more complex. The lowest age is six,
in North Carolina. Several states have no set standard, and thus rely on the
common law age of seven. In New York, Reuters recently reported on efforts by
the top judge to raise the age from sixteen to eighteen, but only for certain non
violent offenses.

Infosur Hoy outlines a nearly mirror image in Uruguay, where a referendum will
be held to raise the age from sixteen to eighteen. Two opposition parties,
supported by victims of crime and business interests support the measure, but
the ruling party opposes it. England has the lowest MACR, ten, in Western
Europe, and is debating raising the age. The age was fourteen, but after a brutal
murder of a toddler by two ten year olds in 1993, the age was reduced. Now
those who oppose raising the age point to other heinous crimes by youth.

A March, 8, Vancouver Sun story reports the position of Pakistans Interior

Minister that, Children in Pakistan grow up faster than those else-where
because of the countrys hot climate and spicy food The minister is helping to
block efforts to raise the age from eight to twelve. The legal designation of
children is being sought by human rights advocates not only for juvenile justice,
but to make it easier to implement laws against child pornography, child
prostitution, child molestation, and human trafficking.

A policy paper by the Child Rights International Network indicates that two
nations have recently lowered the age, Georgia and Panama. Others are
considering lowering the age, including Argentina, Brazil, France, Hungary,
Korea, Mexico, Peru, the Russian Federation, and Spain. The report states,
CRIN has collected worrying evidence that a growing number of States in all
regions, far from fullfilling their legal obligations to respect the rights of all
children, are moving backwards in their approach to juvenile justice and
criminalising more and younger children.

https://defenceforchildren.org/philippines-reject-proposals-lower-minimum-age-
criminal-responsibility/

The Age Of Criminal Responsibility

THE AGE OF CRIMINAL RESPONSIBILITY
Explain and evaluate the argument that the age of criminal responsibility in England and
Wales is too low.

INTRODUCTION
The law must be sensitive to human development and social change.

- Lord Scarman, Gillick.

The United Nations Convention on the Rights of the Child (UNCRC) professes that anyone
under the age of eighteen is a child. However, in the criminal law, although it is not written in
statute, greater distinctions are made. Anyone under 18 is a juvenile', persons aged 14-18 are
classed as young persons' and a person under 14 years old is classed as a child'. So, within
the Criminal Justice System (CJS) in England and Wales, this means that there is the
potential to effectively differentiate between different ages and thus respond to different ages'
behaviours accordingly. However, the age of criminal responsibility being appallingly low
does not allow this. Instead of assessing and recognising the different stages of development
within childhood', children are being tried as adults, in adult courts, without the notion of
childhood' and what it encompasses - welfare and the need for protection - sufficiently being
taken into account. If it is taken into account it is inconsistent and therefore riddled with
injustice.
The inherent difficulty to actually conceptualise an age where a child has or has not the
capacity to act with the appropriate mens rea of an offence, our low age of criminal
responsibility is simply not acceptable according to the UNCRC and it cannot seemingly be
reconciled with being morally acceptable in general, especially after the abolition of the
presumption that children aged 10-14 were doli incapax which at least afforded some
protection to children. The fact that the law has the discretion to recognise different stages of
childhood in practice, but not in our low age of criminal responsibility, needs to be called
into question. With crimes such as murder being committed by children as young as ten,
Professor Carolyn Hamilton, Director of the Children's Legal Centre said: nothing can
excuse such violence, but the manner in which society deals with children who commit these
acts must be tempered by the fact that they remain children...'[1]
This paper will first explain the main and common concepts which will be at the core of the
discussion throughout, and then aim to discuss the problems with having the age of criminal
responsibility at ten years old and why it should be increased, taking into account opposing
arguments, especially that of the criminological idea that everyone who has committed a
crime has done it of their own moral free-will', the advent of compulsory education and the
alternatives available to respond to child criminals without having to subject them to the full
extent of the CJS as if they were adults.

A short history of childhood.

A low age of criminal responsibility was not out of place in the seventeenth century as under
the original common law a child was not held responsible for crimes until he was seven, and
throughout this time it was clear that children aged 10-14 were presumed to be incapable of
committing an offence, unless it could be proved that they knew what they did was wrong
(the doctrine of doli incapax). Not pulling children under this age into the system was
recognition of their state of infancy, but as soon as they reached this age their life was
considerably different to the modern day child. Children were no more than little adults[2]:
they would dress like adults, associate with adults and would have to work long hours as
soon as they were capable of undertaking a job (especially in regards to the working classes)
so of course they were expected to behave morally like adults at an earlier age. The now
obsolete reason for this was if they committed a crime it was down to the Christian religion's
explanation of Original Sin; children were treated the same because they had just as much
chance of going to hell as adults. But this is not the case now. As society became more
sophisticated, education was required, and with that came enforced dependency, and so there
was an enlightenment period where childhood innocence was seen as a weakness that needed
to be addressed, not Original Sin. This conception demanded that the CJS changed the way it
responded to children with the objectives of recognising that children were indeed different
from adults and they needed to be protected from the contamination of adult vices.

Childhood : Modern Day

With these objectives progressing over the years, including the age being eight before 1963,
the age of criminal responsibility now resides at ten. With this in mind, the question must be
asked of what it means to be a child in this modern era. Education lasts much longer, so
dependency lasts longer. England and Wales are lucky to have become wealthy countries
where it is extremely rare that anyone under eighteen must find a job so their family can eat;
they are not forced into adulthood as once was the case.
It could be suggested that every person has experienced life as a child and could easily
accumulate their own subjective definition where they could say at what stage they should be
held responsible, but as this would be open to untruth, self-determination of responsibility is
merely hopeful reverie. So the law must govern the imposition of responsibility in such a
way as to provide for the circumstances, shortcomings and experiences of the individual
child himself (the ways this can be achieved will be discussed below). For example, certain
people could have mentally, biologically and morally grown up' extremely fast and thus they
would be expected to be responsible at an earlier age, but conversely, even now another
person may not have the capacity to understand that they have committed a crime at the age
of eighteen. This leaves a huge gap in the system which craves the remedy of raising the age
of criminal responsibility as to balance out these polar differences within the CJS. Having the
age so low does now allow for latter eventuality and this is not fair.
The counter argument is that because our society now is sophisticated, children nowadays are
better educated and physically more mature, and by the age of ten it is most likely that
children have had at least five years education in which to gain a sound grasp of the
difference between right and wrong and the consequences of one's actions. However, the
weaknesses in this argument can be somewhat quashed because compulsory education does
not necessarily mean better education, and the consequences of the attribution of guilt -
especially for serious offences - are so dire, it would be arguably asking too much of a child
despite their education.

An age of criminal responsibility

For legal purposes and because of its strong implications, the concept of an age of criminal
responsibility should be such that it reflects a generalised and realistic age for a person to be
held responsible for a crime. It must be the portrayal of a mental, intellectual, emotional and
more specifically, a moral capacity to differentiate right from wrong. It would seem having it
at the age of ten is expecting far too much of a child who is arguably incapable of doing this.
R. Garside of the Guardian newspaper summarises this point succinctly in that, No child
should be placed in a position where they are making far-reaching decisions about their
future without appropriate adult support.[3]
Regarding this point, it is wise to contrast the age of criminal responsibility with the age at
which it has been decided that persons are responsible enough to make other important
decisions. For example, the age at which one can legally consent to having sexual intercourse
is 16; drive a car at 17; marry at 18; vote at 18, and some of these could arguably said to have
less serious consequences[4]. So why then does our society allow children to be treated as
criminals at such a young age with such serious implications, when one is said to only be
responsible enough to merely get a tattoo when they are eighteen.

The law
Section 16 of the Children and Young Persons Act 1963 states the age of criminal
responsibility in England and Wales at ten years. All children under this age are presumed to
be doli incapax (incapable of committing a crime). After reaching the age of ten however,
and as Elizabeth Stokes informs us, there is nothing within the substantive criminal law
regarding the attribution of guilt, which distinguishes the responsibility of young people from
that of adults.[5] And the argument is that there most definitely should be because of the
natural differences between the two.
The Home Office White Paper in 1997, signalled the start of New Labour's tough and
punitive, No More Excuses' campaign by declaring that:
'Young people who commit offences must face up to the consequences of their actions for
No young person should be allowed to feel that he or she can offend with impunity
Punishment is important as a means of expressing society's condemnation of unlawful
behaviour and as a deterrent.'[6]
This is an explicitly punitive approach that is wholly and specifically rejecting any findings
that children need to be looked at differently and it disregards the nature and psychology of
childhood. It is like expecting a newborn baby to drive a car, disregarding the knowledge you
have that they cannot. Every government wants to win votes by appearing to be tough on
crime because that reflects the general consensus of the public. But the question is has the
UK government and legal system gone too far and made their approach too tough by not
realising that the laws created by adults, to govern the conduct of adults, cannot be translated
onto children and also, why over ten years later have they kept this punitive approach in the
light of so much criticism, wider knowledge and such a range of alternatives.
At one point, the law seemed to be making progress in that there was much discussion with
reference to raising the age in the late 1960s after the Government White paper Children in
Trouble'[7] (1968) along with Section 4 of the Children and Young Persons Act 1969 which
would have raised the age of criminal responsibility to 14. This would have bought the
England and Wales in line with the rest of Europe regarding the age of criminal
responsibility, as for example, we have one of the lowest ages compared to Luxembourg and
Belgium at 18, France 13, Germany 14, Finland 15, and this would have been acceptable to
the UNCRC. But these positive acts of recognising childhood were never implemented and
the provision was repealed anyway in 1991.

Doli incapax
The New Labour policy introduced an unnaturally bold dividing line between criminal
responsibility and irresponsibility for children who offend. This was the case even though
arguments have been put forward suggesting that to criminalise and label children is very
dangerous, with Deborah Orr proposing that, if a child has behaved in a fashion that he or
she feels he had little or no control over, and then is told this is "criminal", then the child is
being taught that his or her criminality is something over which he has no control.'[8] The
following doctrine attempted to decrease the amount of children being labelled until it was
abolished by the Crime and Disorder Act 1998 and give protection to children aged between
10 and 14 years. This protection was the rebuttable presumption that children were doli
incapax'. Under this legal doctrine, as expounded in the case of C v DPP,[9] in addition to
committing the actus reus and mens rea of a criminal offence, the prosecution also had to
prove beyond reasonable doubt that they knew what they were doing was seriously wrong,
not merely naughty or mischievous.[10] For example, Bandalli suggests that children have a
very flexible approach to ownership, if one were to look at the contents of the Theft Act
1968, s.1(1) describes the crime as dishonesty with intent to permanently deprive' a concept
which children might only be aware of as merely borrowing.'

THE ARGUMENTS THAT THE AGE OF CRIMINAL

RESPONSIBILITY IS TOO LOW
Psychological theory
It is only sensible to consider the words of those who dedicate their lives to the study of child
psychology because they ultimately have wider knowledge of what age a person should be
when they can truly be responsible for their actions.
Piaget in his work, The Moral Judgement of the Child'[11] established a theory of not only
the cognitive, but also the moral development of a child's mind, prcising that they cannot
undertake certain tasks until they are psychologically mature enough to do so. The
psychologist Kohlberg expanded on Piaget's position[12], and their theories make it plain
that by ten children are not capable of making moral decisions similar to that of an adult, as
they have not fully learned to do so.
The theories suggest that there are 2 stages of moral reasoning (which sometimes overlap)
named the heteronomous stage and the autonomous stage. At the heteronomous stage, the
child is egocentric and believes the world revolves around them, and they will act depending
on the severity of the outcome.
This stage continues past the age of ten, so before they reach the next stage it is unlikely that
they will be aware of the severity of any outcome. Subsequently, when they are in the
autonomous stage, intentions are more important than the consequences of action and should
be the basis for judging behaviour, and it is then that a child should be held accountable for
his or her actions, not before. The theories suggested here are, of course, non-conclusive and
non-exhaustive and cannot give a precise indication of what the age should be, but at least
give an insight into the questionable nature of the entire concept of an absolute age of
criminal responsibility. With that in mind, the age of criminal responsibility cannot remain at
ten years old because children's mind have just not developed enough to justify the
implications of being found guilty and put into a system which would label them as criminals
for possibly the rest of their lives.

COUNTER SENTENCES
Abolition of doli incapax
The doctrine of doli incapax was working as a filter which recognised childhood' to stop 10
being the absolute age of criminal responsibility. Children aged between 10 and 14 years
benefited from the presumption as it protected them from the detrimental effects of the
enforcement of criminal law[13] and made allowances for their young age.
However, the counter point made by Pickford questions why the opponents of abolition
continue to have faith in a doctrine which has proved to be so inadequate in protecting
children anyway.[14] It could be suggested that the doctrine did not work as it was professed
to as it still did not stop children being prosecuted; as the prosecution only had to prove that
children knew the difference between the extreme opposites of right and gravely wrong, and
not mere naughtiness and wrong.. So in practice it did not work sufficiently, but it cannot be
ignored that it had very strong symbolism, which was arguably the most important aspect
The remaining faith would probably lie in the symbolism of the doctrine and not its precise
application. This is because at least some acknowledgement was given to the notion of
childhood' with doli incapax, differentiating a child's treatment from that of adults. It made
the police; the CPS and the judiciary stop to think about the degree of responsibility for each
individual child,[15] and doing that, however briefly, kept the childhood status in tact.
In spite of these arguments, Jack Straw said on 3 June 1998; with great respect, we are
abolishing the concept of doli incapax and thus England and Wales saw the erosion of the
policy of protection. However, this was combated with the justification that removal of
protection was removal of excuse' culture.'[16] Nevertheless, supporters of the doctrine still
implore the judiciary to recognise at least some protection. The recent case of R v T[17] in
2008 it was proposed that only the presumption had been abolished[18] and that the defence
remained in tact. But this proposition was quickly flattened and children aged 10-14 would
be treated in the same way as other juveniles in deciding whether to prosecute. The abolition
of doli incapax was discoursed in conjunction with increasing the age of criminal
responsibility, but now there has been an absolute abolition, the government has carried out
one without the other, and has left a vacuum where protection should be. Therefore, what
doli incapax stood for; its symbolism of protection was quashed and children are treated like
adults once again.

Criminalisation and the rights of the child.

There is little doubt that punitive imperatives have shaped contemporary policy responses to
child offenders' in England and Wales.

- Goldson (2002)
The government is simply ignoring the widespread discourse and European
recommendations about the rights of children. With their apparent stubbornness, not to
mention the abolition of the centuries old presumption of doli incapax, the question is why
are we wedded to the extreme desire to pull children into the criminal justice system and
criminalise, rather than taking the civil route which is based on the foundations of protection
and welfare? Their policy has brought a large group of children under the auspices of the
criminal justice system where previously they may have been successfully diverted.
This current punitive climate can be justified to an extent because people have an innate
interest in punishment. Namely, they will view children as adults seeing them as autonomous
beings who bear responsibility for what they do, despite their age. If one were to look at the
way criminology could explain this tough approach, it would be clear New Labour projected
a consensus theory argument. This is that as a society we have agreed what behaviour we
will tolerate and what we will not, and they are trying to persuade the public that we should
share their view and accept this as a new norm.
In the NACRO youth crime briefing as recent as December 2008, the Committee expresses
concern about the findings of a survey commissioned by Barnado's[19] which show the
negative public perception of children and their adherence to this new norm:
* 49% of people believe that children are increasingly a danger to each other and adults,
* 54% agreed that children are beginning to behave like animals,
* 35% of people feel like the streets are infested with children.
In addition to this, after the 1994 government submission to the UNCRC, Barnado's and the
NSPCC highlighted their outrage of what the government purported to be happening in
England and Wales, that it did not reflect what was happening in reality, and thus decided to
write their own submissions such as these, showing that the UK Government has much to
answer for. R. Garside, an academic writer summarises a strong view against our current
system, when he states, We set the age of criminal responsibility too low because adult
society does not have the collective capacity to imagine a system for dealing humanely with
children and young people who break laws created by adults, largely to police the behaviour
of adults. We prefer to punish children and young people, so relieving ourselves of the
responsibility of thinking seriously about what it would mean to treat children and young
people with compassion, dignity and respect.
The UNCRC
According to the UNCRC regarding the age of criminal responsibility, countries should
"consider whether a child can live up to the moral and psychological components of criminal
responsibility" and notes that if the age of criminal responsibility is set too low "the notion of
responsibility would become meaningless". The Committee has recommended State Parties
not to set a minimum age of criminal responsibility at a too low level and to increase an
existing minimum age to an internationally acceptable level concluding that the minimum
age below the age of 12 is considered unacceptable, so without a higher age of criminal
responsibility, an absence of protection, and such a punitive system can we ever ensure that
the rights of children are ever being met? According to UK Children's Commissioners'
Report to the UNCRC, although the UK has ratified the UNCRC, the Convention is not part
of domestic law and remains unenforceable. Recent legislative and policy developments are
in clear breach of the UNCRC as reported in the Second Report of Government to UNCRC
and Concluding Comments of UN Committee on the Rights of the Child especially anti
social behaviour orders (ASBOs), secure training orders, sentencing and conditions in
custody for example. ASBOs expose children to naming and shaming[20]', giving them a
criminal personality before they have even begun grown up life. Even if these do not breach
the Convention rights, they are arguably unsuccessful anyway, as some children, especially
the higher end of the spectrum would actually be proud of having an ASBO, or as Deborah
Orr suggests[21], they would be badges of pride and perverse achievements.'
Secure Training Orders are a concern of the Committee because it means that now children
12-14 are being deprived of their liberty, which is contrary to s.37b of the Convention, which
would not be the case if the age was raised.

Conclusion
In conclusion, the courts have decided on where this lies by imposing the statutory criminal
age of responsibility of ten, to keep up with the growing insistence on moral
blameworthiness. It must be acknowledged that there is no consistent principle to facilitate
the courts in its determination of the age where moral responsibility lies; it would appear to
be just a convenient number. Whilst there is much discussion to raise the age of criminal
responsibility to at least comply with the UNCRC and the Beijing Rules, if, for a start,
England and Wales tried ignoring the media and public mass panic, and acknowledging the
child's needs, then they would be well on their way to delivering fair, effective justice.
https://www.lawteacher.net/free-law-essays/criminal-law/age-of-criminal-
responsibility.php

Lowering the age of criminal responsibility :: why it

doesnt work
Learn the truth behind the myths and understand why this is a bad idea
Lowering the age of criminal responsibility :: why it
doesnt work
Learn the truth behind the myths and understand why this is a bad idea

03/25/2015ageof criminal responsibility black youth congress lower house lowering the age of
criminal responsibilityrafael custdio un violence vivian calderoni

Proposals to lower the age of criminal responsibility are once again passing through Congress. After
being re-introduced in February, Constitutional Amendment 171 was submitted to the Constitution
and Justice Commission of the lower house, where voting was postponed on Tuesday, March 17,
after members requested an adjournment.

The session approved the holding of a public hearing on the subject, which has been scheduled for
March 24. The case, therefore, may be voted at any time from March 25 onwards. If approved in the
Constitution and Justice Commission, it will proceed to a special commission and then to the floor of
the lower house, where it will need to be approved in two rounds before being sent to the Senate.

Constitutional Amendment 171, originally from 1993 and drafted by Congressman Benedito
Domingos, proposes to modify article 228 of the Federal Constitution so the age of criminal
responsibility can be reduced from 18 to 16.

One of the arguments used to justify the proposed amendment is the need to combat crime waves
perpetrated by adolescents who benefit from the impunity guaranteed them by the Child and
Adolescent Act.

There are numerous myths claiming that lowering the age of criminal responsibility is the solution to
the problem of crime in the country. The facts, public data and experiences in other countries,
however, show that this is an illusion, said Vivian Calderoni, a lawyer at Conectas. Urgent
measures need to be adopted to solve this problem, but lowering the age of criminal responsibility is
not one of them, she added.

In addition to being an entrenched clause in the Constitution meaning it cannot be altered any
reform of the age of criminal responsibility would go against a recommendation of the United
Nations. The UN has said that such a move would pose a threat to the rights of children and
adolescents and would also conflict with global trends in juvenile justice. This Tuesday, March 23,
the United Nations Office on Drugs and Crime (UNODC) reiterated the importance of the UN
Convention on the Rights of the Child and took a position against lowering the age of criminal
responsibility.

The initiative has also led the Inter-American Commission on Human Rights (IACHR) of the OAS
(Organization of American States) to publicly express its concern with the matter.

Unlike what some people think, adolescent offenders are already punished in Brazil. And, moreover,
the data leave no doubt that young people are far more often victims than perpetrators of violence in
our country, said Rafael Custdio, coordinator of Justice at Conectas. Criminality is only reduced
with heavy investments in prevention. One of the most important ways of combating juvenile crime is
investment in education, he explained.

To clarify why lowering the age of criminal responsibility does not work, Conectas presents evidence
below to refute 5 common myths.

Myth: Detaining adolescents who have committed crimes in prisons instead of holding them
in youth detention centers will reduce criminality

Detention is not the solution. Unlike what some people claim, Brazil imprisons too much and does so
badly. Data from the Ministry of Justice reveal that the Brazilian prison system has the worlds fourth
largest prison population with 574,000 detainees, according to information from June 2013
behind only the United States, Russia and China.

Between 1992 and 2013, Brazil increased its incarceration rate (number of people in prison per
100,000 inhabitants) by 317.9%. The pace has been such that nearly half of these prisoners have
not yet been properly convicted 43.8% are pre-trial detainees.

However, in spite of this, things are not safer in the country. On the contrary, the increase in the
incarceration rate has been accompanied by a rise in crime rates. The murder rate, for example,
rose 24% in 8 years, according to data from the Brazilian Public Security Forum.

Myth: Adolescents who commit crimes go unpunished

Under the current Brazilian legislation, young offenders can be punished by detention just like adults.
The Child and Adolescent Act permits up to three years confinement.

Currently, more than 20,000 young people are held in detention centers, according to the 8th Annual
Report on Brazilian Public Security. Despite differences in relation to adult prisons, in practice the
loss of rights and the discipline are similar.

Adolescents receive a visit once a week and their relatives are subjected to an abusive search, a
procedure that involves undressing, squatting repeatedly over a mirror, and anal and vaginal
inspections.

Although they take courses and classes to help with their social reintegration, there are allegations
of torture and mistreatment by agents of the State.

Moreover, the Child and Adolescent Act, just like the Criminal Code, provides for other types of
punishment, such as probation, whereby young offenders remain under the constant supervision of
a probation officer and are required to report to a judge periodically.

Myth: most of the crimes committed by adolescents are violent

Among the more than 20 thousand young people fulfilling educational measures in Brazil, almost
90% are not accused of having committed a crime against life, according to the 8th Brazilian
Yearbook of Public Security.

According to the data, 4% of homicides in Brazil - a country with one of the highest rates in the world
- were committed by children under 18 years admitted to the childcare system in 2012. The index
drops to less than 1% when also considered other serious crimes (murder, robbery, theft and rape).
Myth: developed and developing countries set the age of criminal responsibility at less than
18

Of the 54 countries studied by Unicef (United Nation Childrens Fund), 78% set the age of criminal
responsibility at 18 or older. These include France, Spain, Switzerland, Norway and Uruguay.

Myth: black and poor children and adolescents frequently lead a life of crime

In fact, children and adolescents in situations of social vulnerability are the main victims of crime and
violence. According to the 2014 Violence Map report, more than half (nearly 30,000) of the 56,000
people murdered in 2012 were young people aged between 15 and 29, of which 77% were black.

Furthermore, nearly 151,000 children and adolescents aged up to 17, victims of mistreatment and
aggression, were heard by the Disque 100 (Dial 100) abuse helpline between January and
December 2014.
RECOMMENDATION

Summary of CRC Guidance In summary, the Committee encourages a single, invariable, and
country-wide MACR in each State party - one which is set as high as possible, and which is
applied uniformly to all children at all times. More specifically, the guidance developed under
the CRC includes the following: l MACRs Must Be 13 Years of Age or Higher l In Law and in
Practice, No Child Younger than the MACR Should Ever Face Criminal Procedures or Sanctions
Only Protective and Educative Measures l Doli incapax is Problematic as a System, But It
Should Only Be Revoked if the MACR is Also Increased To At Least 13 Years of Age l Puberty
Should Never Mark the Onset of Criminal Responsibility l The Same MACR Must Apply
Regardless of the Seriousness of the Alleged Offense l The Same MACR Must Apply
Throughout the State Party l The MACR Must Refer to the Age of the Child at the Time of the
Alleged Offense In view of this guidance, and as seen in Table 1 and the foregoing discussion,
current South Asian MACR provisions fall short in various respects. Indeed, the very highest
MACRs in South Asia 10 years of age in Bhutan and Nepal still fall 3 years short of the
minimum acceptable age. However, the MACR is often far more complex in practice than by its
legal definition, and its practical problems are widespread in South Asia. The following section
examines other faces of the MACR and their implications for childrens rights.

From a scientific viewpoint, there is little research available on the effectiveness of delinquency
prevention programs in South Asia. However, researchers in the United States have
comprehensively examined the question of how to respond to children under 12 who come into
conflict with the law. They concluded decisively that the best intervention and service programs
provide a treatment-oriented, nonpunitive framework, and that effective non-punitive programs
can reduce disruptive behavior and delinquency at an early age.47 They also uncovered the
critical importance of such welfare-oriented responses: in the absence of effective interventions,
children who commit crimes while still under 13 are three to four times as likely to develop into
serious, chronic, or violent offenders.48 Other studies suggest that punitive approaches,
including the deprivation of liberty, are less effective and may even worsen delinquency
problems over time. Furthermore, the deprivation of liberty of children is consistently more
expensive than non-custodial programs and services. In other words, the most effective approach
is to respond to all children younger than 12 or 13 in conflict with the law via non-punitive
programs and services; other approaches are significantly more expensive and may even worsen
delinquency problems over time. These research conclusions match international juvenile justice
standards on the MACR in their entirety. In many South Asian countries, the reality often reflects
just the opposite. There is a lack of non-punitive options to respond to children in conflict with
the law, and resource-demanding deprivation of liberty is often the primary response
unfortunately, at times even for children younger than the MACR. Juvenile justice laws often
stipulate a variety of other options, but in reality these are rarely used. In general terms, this is a
challenge with regard to children both older and younger than MACRs, and it should be
addressed concurrently with any proposal to increase MACRs.

OBSERVATIONS

Lack of Appropriate Programs for Children in Conflict with the Law, Particularly for Those
Younger than the MACR In many countries around the world, resistance to MACR increases
comes down to one core, but mistaken, argument: the government needs to retain full discretion
to respond to young children in conflict with the law, and thus it is better not to raise the MACR.
Indeed, this point was raised in opposition to Bangladeshs recent MACR reforms. While the
instinct to somehow respond to young children in conflict with the law is understandable, both
the childrens rights and scientific perspectives make the following point abundantly clear: young
children in conflict with the law should be held accountable by entirely non-punitive measures
for guidance and re-education. There is no need to maintain a low MACR to respond to children
as such. Indeed, it is incumbent upon States parties, under international juvenile justice
standards, to respond effectively to children younger than the MACR with such appropriate
measures.

From a scientific viewpoint, there is little research available on the effectiveness of delinquency
prevention programs in South Asia. However, researchers in the United States have
comprehensively examined the question of how to respond to children under 12 who come into
conflict with the law. They concluded decisively that the best intervention and service programs
provide a treatment-oriented, nonpunitive framework, and that effective non-punitive programs
can reduce disruptive behavior and delinquency at an early age.47 They also uncovered the
critical importance of such welfare-oriented responses: in the absence of effective interventions,
children who commit crimes while still under 13 are three to four times as likely to develop into
serious, chronic, or violent offenders.48 Other studies suggest that punitive approaches,
including the deprivation of liberty, are less effective and may even worsen delinquency
problems over time. Furthermore, the deprivation of liberty of children is consistently more
expensive than non-custodial programs and services. In other words, the most effective approach
is to respond to all children younger than 12 or 13 in conflict with the law via non-punitive
programs and services; other approaches are significantly more expensive and may even worsen
delinquency problems over time. These research conclusions match international juvenile justice
standards on the MACR in their entirety. In many South Asian countries, the reality often reflects
just the opposite. There is a lack of non-punitive options to respond to children in conflict with
the law, and resource-demanding deprivation of liberty is often the primary response
unfortunately, at times even for children younger than the MACR. Juvenile justice laws often
stipulate a variety of other options, but in reality these are rarely used. In general terms, this is a
challenge with regard to children both older and younger than MACRs, and it should be
addressed concurrently with any proposal to increase MACRs.

PNP DATA, JULY-AUGUST 2016

Drug war lists 20,584 kids

as users, pushers, runners
by Vino Lucero

WEDNESDAY, SEPTEMBER 21ST, 2016

TANAY, RIZAL The fresh wind blowing through the spacious rundown facility
can make one feel relax, energized, or even nostalgic. But many of those who had
taken temporary residence here had been constantly plotting to escape it until
recently.

They tell me, we no longer want to get out of here because of what we hear from
TV, recounts resident psychologist Lucia Larracas. In fact, one former resident
was killed in his community just a few weeks after his release from here. A
current resident, meanwhile, has told Larracas that supposed vigilantes recently
killed three of his friends back home. According to the boy, his friends lifeless
bodies were found separately, but in the same manner: each hidden under a car.

This is Tanay Boystown officially known as the National Training School for
Boys (NTSB) which houses minors in conflict with the law. Most of the
residents here have a history of illicit-drug use, but youthful restlessness could
also have been another factor in the urge of many to break free from the facility.
These days, however, that urge has been overtaken by the fear of getting caught
in the governments anti-drug campaign and ending up dead.

The Boystowns residents are apparently not the only minors thinking this way.
Among the hundreds of thousands of people who have surrendered to authorities
in President Rodrigo R. Dutertes war against drugs, tens of thousands are
minors, or those under the age of 18 years.

Drug pushers, too?

From July 1 to August 28, or roughly the first two months of President Dutertes
term in office, 20,584 minors have surrendered to local police offices, according
to the Philippine National Polices Women and Children Protection Center
(WCPC). Surprisingly, nearly 30 percent of the minors who gave themselves up
did not even have files with the police.

Some 65 percent or more than 13,000 had previous records with the police as
first-time offenders while about eight percent or 1,595 were repeat offenders.

More than 98 percent of these minor surrenderees admitted to being drug users,
while only 273 or 1.33 percent surrendered as drug pushers or sellers, and 66
(0.32 percent) as drug couriers or runners.

Of this total, 3,971 were children from Central Visayas. Northern Mindanao,
meanwhile, has the second highest number of children drug surrenderees at
3,783. Zamboanga region came in far third with 2,196.

The PNP tally of minor surrenderees, by the other administrative regions of the
country, from July 1 to August 28, 2016 follows:

Davao Region, 1,988 minors;

Caraga, 1,821;
Soccsksargen, 953;
Negros Island, 729;
Bicol Region, 719;
Autonomous Region in Muslim Mindanao, 696;
Eastern Visayas, 642;
Calabarzon, 534;
Cagayan Valley, 511;
Central Luzon, 479;
Western Visayas, 408;
Ilocos Region, 387;
Metro Manila, 276; and
Cordillera Administrative Region, 228.
A quantum leap

This two-month tally of minor surrenderees is a quantum leap from comparative

figures gathered by the PNP from 2010 until June 2016 and the Philippine Drug
Enforcement Agency (PDEA)s record of rescued minors from anti-drug
operations from 2011 to June 2016.

According to the PNP, the minors involved in illegal drugs during the 78-month
period covering 2010 until June 2016 included 5,110 illegal drugs users and 371
traders/sellers.

Meanwhile, PDEA recorded a total of 889 rescued minors from anti-drug

operations across the country during the 66 months running from 2011 to June
2016. Of this number, 383 were noted as drug possessors; 343 as drug pushers;
and 92 as drug users; 40 as visitors of a Drug Den; eight as drug runners; seven
as illegal drug cultivators; four as drug trade cohort; four as drug- den
maintainer; three as drug trafficker; three as drug-den employees; and two as
drug couriers.
Forty-six percent or 410 of the children were 17 years old at the time they were
rescued. Among the youngest of the rescued during this period was a six-year-old
alleged pusher, followed by a seven-year-old supposed drug runner, and another
alleged pusher, aged nine.

Initial contact

The law prescribes a different handling of minors to that of legal-age offenders.

For example, police refer to the actual rescue of minors as initial contact, as
opposed to arrest that is used for legal-age offenders.

Processing of child drug surrenderees and rescued minors are also different,
according to PNP Women and Children Protection Center chief Rosauro Acio.
For instance, he says, drug tests can be done on rescued minors only if they have
a determined drug-related offense. But when a child is a surrenderee, Acio says,
he or she will be subjected to a drug test upon surrendering. Because the child
volunteered, and we have to determine what substance he or she is taking if its
marijuana, shabu, or Ecstasy.

We go to the crime lab, we get the urine, he says. If the results are inconclusive,
Acio says, they also do blood tests.

Acio also points out that children are supposed to be handled more sensitively if
they are rescued from drug trade. If the child claims that he is being abused, we
have to look for the abuser, we have to look for the syndicate, he says. (The
abuser) would be the one facing a case in court, and the child should be
considered as the victim.

Acio adds that all records and processing of children should be handled by the
Women and Children Protection Desk of local police stations, and all protocols
mandated by the law should be followed.

Release to parents

The PNP Anti-Illegal Drugs Operations and Investigation Manual itself says,
among other things, that a rescued childs age must be determined through a
copy of a duly authenticated Birth Certificate from the National Statistics Office
(NSO) or, in the absence of it, through a dental examination by PNPs Crime
Laboratory Service or a competent medical practitioner. In the meantime or if
doubt of the offenders age persists, Acio says [the child will] have to be
presumed as a minor, if it is in [the childs] favor.
A child in conflict with the law or CICL should also be turned over immediately or
not later than eight hours to the Local Social Welfare Development Office
(LSWDO) or an accredited non-government organization (NGO). The childs
parents or guardians, as well as the Public Attorneys Office (PAO), should also be
notified of the childs apprehension, and notification of these parties shall be
noted in the initial investigation, according to the PNP manual.

CICLs who are 15 years old and below will be immediately released to their
parents, guardian, or nearest relative, the manual says as well. But it says
children aged 12 to 15 who committed offenses punishable by more than 12 years
of imprisonment shall be mandatorily placed in a Bahay Pag-asas Intensive
Juvenile Intervention and Support Center.

If detention is necessary, the PNP manual continues, the child shall be separated
from adult offenders and offenders of the opposite sex. Locking up a child in a
detention cell is prohibited.

Overbooked centers

According to law, local government units are tasked to fund their own Bahay Pag-
asa, where in minors in conflict with the law can be admitted to receive
intervention, rehabilitation, and reformative care.

A document from Protective Services Bureau of the Department of Social Welfare

and Development (DSWD) describes Bahay Pag-asas as being designed to
provide short-term residential care for children in conflict with the lawwho are
awaiting court disposition and/or provide intensive intervention to CICL who
have committed serious offense or those who are repeat offenders.

As of second quarter of 2016, there are 36 Bahay Pag-asa across the country, 34
of which are already operational. Of the remaining two, one is still waiting to
receive CICLs, while the other needs renovations to be a usable facility.

Aside from locally funded Bahay Pag-asa, DSWD also funds youth regional
rehabilitation centers. At present, the state agency has 208 children in its youth
regional rehabilitation centers and field offices, according to the data from its
Protective Services Bureau.

Calabarzons youth rehabilitation center has the most children in its custody at
72, followed by Ilocos regions center (27) and Eastern Visayass center, which
has 25 minors.

But the DSWD data seem to have left out facilities like the Tanay Boystown,
which is under the department.
Boystown bursting

Tanay Boystown currently houses 327 minors in conflict with the law.

NTSB Officer in Charge Lucia Almeda says that while the official purpose of
Boystown is to admit sentenced children, it is also obliged to house those with
ongoing trial because of the lack of facilities that can cater to these minors.

Tanay Boystown has a housing capacity of 120 to 130, according to Almeda,

which means it is overbooked by some 200. This has forced the facility to bar new
residents while it awaits the repair and renovation of a cottage damaged by a
typhoon. At present, Boystown has four usable cottages, two of which have more
than a hundred residents each sharing the space.

Almeda says Tanay Boystown received a total budget of P21 million for its
operations for 2016. Most probably, a portion of that is going to refurbishing the
decades-old pipeline of the 12.5-hectare facility. When PCIJ visited Boystown
recently, repairs were still underway, and the facilitys youthful residents were
busy fetching water from a single source way across the compound.

A bigger jail

The cottages actually look like very old public-school classrooms with faded paint
on the walls. There are no double decks or bed frames, since some residents use
the metal from these to make tattoo needles or weapons that they would use
during cottage riots.

For now, however, this place may seem to be the safest haven for its residents.
Psychologist Larracas narrates that one boy who had once escaped from
Boystown told the other residents that once he was out, he soon realized he had
entered an even bigger jail.

Whenever it was nighttime, I would be eating, someone would text me that there
are police coming, Larracas quotes the boy as saying. Thered be a raid, I would
run away. Then there would be the police again, there would be another raid, and
I would run away again. Infographics by Davinci Maru, PCIJ,
September 2016

WOMEN CLIENTS AflD CHTLDREN TN CONFLICT WTTH TTIE LAW Under R.A. No.
9262, otherwise known as the Anti-Violence Against Women and their Children Act
and R.A. No. 93,14, otherwise known as the Juvenile Justice and Welfare System Act,
as well as the subsequent peftinent issuances, the PAO is specifically mandated by
law to extend legal assistance to women and their children who are victims of
violence and to facilitate the release and proper disposition of cases involving
Children in Conflict with the Law (CICL), particularly those who were fifteen years
old or below at the time of the alleged commission of the crime. To this mandated
task, the PAO continuously gives special attention to the cause of women and
children in so far as the criminal justice system is concerned. Graph No. 18 GraPh
No. 19 The graphs above show the number of women and children assisted by the
PAO for the year 2016. From January to December 2016, the Office handled a total
of 52,724 and 22,t36 cases involving women and CICL, respectively.

The graphs above show that from January to December 2016, a total of 25F7L and
6,t76 cases involving women and CICL, respectively, were terminated. It is humbly
submitted that the above-shown data manifest and indicate the continuous trust
and faith of the people in the performance of the agency. It is viewed that when the
agency performs its duties and responsibilities with the highest standard of
efficiency and dedication, it gives its humble share in converting and transforming
public apathy and chaos into trust and faith to the criminal justice system and
ultimately to the entire administration.