SEVENTEEN-YEAR-OLD Anna was raped and murdered by her cousin of the same age, Leon, in her house in Bicol. In compliance with a new law on juvenile delinquents, Republic Act 9344, Leon was released from prison, without being subjected to any trial or penalty, as he supposedly acted without discernment.

Joey, 14, was caught carrying car tools bundled in his shirt and pulling out the berth of the car’s radio. The owners filed attempted theft with the police but RA 9344 nullified the charges.

With the passage of RA 9344 or the Juvenile Justice and Welfare Act last april 23, the age of discernment has been raised to 15 years old from nine years old, and those 15 to 18 years can now plead for lack of discernment for a criminal act. Now children like Leon and Joey can be exempted from all criminal accountability even for rape and murder cases.

“We, judges, believe that the law was rushed due to the pressure and criticism of the international community on the international community on the administration because of the ill treatment of children in conflict with the law,” Judge Philip Aguinaldo of the Muntinlupa Family Court and professor of the Faculty of Civil Law told the Varsitarian.

The pressure to rush the passage of the law reportedly became extreme after the showing on CNN and other channels of the film Bunso, a documentary on the struggles of children inside adult detention cells.

The law, authored by Sen. Francis Pangilinan and Rep. Simeon Datumanong of Maguindanao, redefines “child” as a person under 18 years of age.

“The Juvenile Justice and Welfare Act is truly a groundbreaking piece of legislation as it aims to change totally how our justice system deals with children in conflict with the law (CICL). However, there have been criticisms in the law’s implementation early on. Some say that it disregards the rights of the many victims of crimes committed by CICL. However, I argue that we should first allow the restorative justice to take effect,” Pangilinan said.

According to the new law, children in conflict with the law will be turned over to school and dormitory-like rehabilitation centers instead of being sent into prison institutes.

Many groups question the law’s standard of the age of discernment, lack of provisions for the victims of child criminals, privileges of the offenders in rehabilitation centers and the possibility that crime syndicates may exploit child criminals since the latter would not be anymore criminal liable.

“The law may be detrimental to peace and order since children could be used as accessories to the crime,” Volunteer against Crime and Corruption chairman Dante Jimenez told the Varsitarian.

Jimenez warned that children may also be used as accomplices to crimes since the law ensures the exemption from criminal ability.

“We want RA 9344 repealed first, then reviewed, and eventually revised,” Jimenez said.

According to him, the law proves more beneficial to the offender the law proves more beneficial to offender, and leaves the victim at the losing end. The law was drafted and passed without consultation with the victim of child offenders, Jimenez added.

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RA 9344 was lobbied for 13 years by the United Nations Children’s International Educational Fund (Unicef) and Juvenile Justice Network Philippines. Based on Unicef statistics, over 50,000 children in the Philippines have been arrested and detained since 1995. Roughly 28 children in the country get arrested every day.

“The criticisms and resistance to change is expected. Implementing the law at this early stage may seem inconvenient but the long term goal of reforming our children and defining our collective future is well worth the effort,” Pangilinan furthered.

Before RA 9344 was approved the age of discernment was nine years old, children in conflict with the law used to be tried according to the same procedures observed in adult criminal proceedings. They served their sentence mixed with adult offenders in a congested detention facility.

“When you put a child behind bars, and mix him with adult criminals, the tendency is that the child would imbibe their behavior as his models,” Alicia Bala, chairwoman of the Juvenile Justice and Welfare Council and undersecretary of the Department of Welfare and Social Welfare and Development (DSWD), told the Varsitarian.

Nitty-gritty

Under the new law, children 15 years old and below would not be detained but placed in a rehabilitation center. Children above 15 but below 18 years (typically third-year high school to college sophomores) who have committed offenses will also be exmepted from criminal liability but will be advised to undergo intervention programs, otherwise they will undergo diversion.

Diversion programs are mediation and conciliation procedures carried out so parties can arrive to an agreement or “areglo,” which will be enacted either I the barangay or police station, once the child voluntarily admits to the act and is willing to settle it without undergoing court proceedings.

The acts done before, during and after the crime are the family court’s basis for discernment, Aguinaldo said, “For example, if a 15- to 17-year-old child threatened to shoot somebody before actually doing it, or he suddenly realized his wrongdoing during the act by dropping the gun, or he resorted to hiding from the authorities after committing the crime, it would be a good evidence of discernment.” The prosecution is given the burden to produce the evidence.

“In the juvenile welfare system, diversion programs are executed so offending teenagers can have the opportunity to make themselves realize that what they have done is inappropriate,” Bala said.

Diversion programs would vary form one child to another, depending on the child’s attitude on the offense he committed, the parents’ or guardians’ ability to guide and supervise the child, the victim’s views about the sanctions to be imposed and the availability of community-based program for the rehabilitation and reintegration of the child.

“Usually the police would not release the juvenile delinquent to his parents without the consent of the DSWD. Aguinaldo said, “But the DSWD lacks facilities and personnel. And if the parents would refuse to accept the child , or the parents are also criminal themselves, the parents could petition in a family court for involuntary commitment.”

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Furthermore, Aguinaldo pointed out that DSWD social workers are not psychologists who can adequately determine child discernment.

If the 15- to 17-year-old child and his parents disagree to pursue diversion within three days, the barangay captain shall forward the case to a law enforcement officer, prosecutor, or any appropriate court. The child will have to remain under custody and to face court charges.

The above-mentioned provisions on diversion programs are applicable on all criminal offenses. In a case that the child and parents refuse to undergo diversion, the child would suffer the penalty one degree lower than penalties designed for adult offenders.

“There is too much focus on diversion programs even though there is lack of funding from the government. Moreover, local government units (LGUs) are not prepared for RA 9344,” Aguinaldo said.

He said that the beneficiaries of the law are unstable on political decisions. “Barangay officials are not even aware of the existence of RA 9344 considering they are the first implementers of it,” Aguinaldo added.

Age matters

The age of child discernment remains controversial. “It is a very complicated situation to determine whether the child conclusively acted with discernment or not. The law should have provided more parameters,” Dr. Marie Anne Vargas, a child psychologist and the director of the Office of Student Admissions, told the Varsitarian. ‘Anyone can say that a child can or cannot already make decisions but the quality of the decision-making is what we are concerned of.”

Bala cited a study of the Council for Welfare of Children and Philippine Action for Youth Offenders saying that age of discernment starts at 13 years old for school children, and for out-of-school youth above 18 years old.

Under the new law, verifying a child’s true age will depend on his birth certificate, baptismal certificate and other related documents. If these documents are unavailable, the child himself will be asked of his age or others can give testimony. The physical appearance of the child can also be the basis for determining age, leaving authorities to question whether they can judge by appearance who is 14 and 15, or 17 and 18, which are critical age brackets.

“The Children Protection Unit of PGH determines the child’s age by teeth, pubic areas and hair. But due to the 24-hour time constraint set by RA 9344, we are sometimes compelled to stipulate the age of the child by other less reliable means,” Aguinaldo said.

Furthermore, RA 9344 does not provide provisions for special cases like child terrorists. Colonel Joel Joseph Cabides, commanding officer of the 801st battalion of Samar, said in a meeting of their provincial Peace and Order Counci that terrorist groups are likely to tap children as they will not be suspected by authorities. He recalled an incident when a seven-year-old boy was ordered by adult criminals to shoot him at gun point.

But Bala noted the need to consider these children as victims themselves. “The problem is that the community’s mindset is that for every crime a child commits a child should be punished, she said.

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“The new law is based on the principle of restorative justice, which means active involvement of both the offending party and the victim, and the participation of the whole community in addressing the problem,” she added.

She said that it is the task of the social worker and the community to determine why the child committed a criminal act, considering his or her family background and social environment.

In case of recidivism, when a repeatedly commits crime, Bala proposes close supervision and individualized rehabilitation program.

“Street children are smart but they are not used to a structured way of life because of lack of parental supervision due to dysfunctional families and environment,” she said.

Haven for child offenders?

To house the children in conflict with the law, the Bureau of Jail Management and Penology founded the Center for Restorative Activities Development and Learning Experiences (Cradle) in Camp Bagong Diwa at Bicutan, Taguig.

An initial of P50 million budget from the Philippine Charity Sweepstakes Office plus one per cent allocation from LGUs will cover the three-year comprehensive program for child rehabilitation.

“Juveniles are separated from adult offenders so there would be fewer chances are adult offenders to influence,” Supt. Amalia Talento, warden of Cradle told the Varsitarian. “We try as much as possible to create a school atmosphere or a detention home more than a jail.”

At present, Cradle has 240 occupants. It provides a separate dormitory for males and females, and even gays and lesbians. Each level has a roving warden assigned to inspect the children each time they get in and out of their dormitories . The children follow a rigid timetable, take part in physical and educational activities with visiting hours in the afternoon.

“We try to instill on them the values they should have learned at home through the ‘homelight’ program for women and soon to be implemented Bureau of Alternative Learning System from the Department of Education,” Talento said.

“Both the first-time offender and the already mature offender should be segregated from different detainees, because each has a different mindset that might influence the other,” she said.

Vargas suggested that it is better for juvenile delinquents to go through a transition program or a halfway house so there would be greater assurance that the child would not commit the same criminal offense again.

“It seems that we are trying to raise criminals in this country, criminals have more rights than victims,” Aguinaldo added. ‘Children in conflict with the law will be repeating the crimes they committed so they could go back to the youth detention home. The Cradle detention center in Taguig is well ventialted; it has a good set of facilities and adequate supply of food that could be tempting to poor child offenders.”

For all the privileges and rights granted to offending “children”, the family of rape and murder victim Anna thinks adult teenagers like Joey and Leon are old enough to be held fully responsible for their crimes. Jenny Lynne G. Aguilar, Jamaila S. Cahilig, Marie Jeanette P. Cordero, and Hershey D. Homol with reports from www.pcij.org

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