Why not 12?Rommel Alim Abitria

Humanitarian Legal Assistance FoundationJuvenile Justice Network Philippines

What is the Minimum Age of Criminal Responsibility?

• The age below which children shall be presumed not to have the capacity to infringe the penal law.

• Doli Incapax• RPC – Art 12 (2) (3)• UNCRC – Art 40 (3a)• JJWA – Art 6

RPC• Article 12. Circumstances which exempt from criminal liability. - The following are exempt from criminal

liability:

• 2. A person under nine years of age.

• 3. A person over nine years of age and under fifteen, unless he has acted with discernment, in which case, such minor shall be proceeded against in accordance with the provisions of article 80 of this Code.

• When such minor is adjudged to be criminally irresponsible, the court, in conformity with the provisions of this and the preceding paragraph, shall commit him to the care and custody of his family who shall be charged with his surveillance and education; otherwise, he shall be committed to the care of some institution or person mentioned in said article 80.

UNCRC – Art. 40• 3. 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:

• a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;

RA 9344 – Sec. 6• SEC. 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or

under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act.

• A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act.

• The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws.

Why 15?• BEYOND INNOCENCE (PLM/CWC, 1997)

– the age of discernment of in- school Filipino children is 15 years old.

• ARRESTED DEVELOPMENT (PAYO, 2002)– the age of discernment of out-of-school Filipino

children is 18 years old.

Policy Issue with Opposing Polarities• Justice versus Welfare• Punishment versus Positive Discipline• Institutionalization versus Community Based

CRC Comments

Escudero HB 467

Garcia – HB 2894

Why Congress wants it at 12• Most of the crimes now are being committed by

children because they are emboldened by RA 9344• Increase in crimes committed by children below 15• To protect the children from syndicate• Because RA 9344 does not hold the children liable for

their crimes• To strengthen the Juvenile Justice

What Congress wants with 12?

• To be held criminally liable if with discernment but if heinous crime presumed with discernment.

• Must undergo trial if Crime is punishable by more than 6 years.

• Must be brought to a youth Detention Home pending trial, but if no YDH, must be brought to Jail.

WHY NOT 12?

Are most crimes committed by Children?

0

100000

200000

300000

400000

500000

600000

2002 2003 2004 2005 2006 2007 2008 2009 2010 Jan-Aug2011

ChildAdult

Are Children Committing Heinous Crimes?

59%

11%

11%

10%

9%

Crimes Committed by Children from 2002 - 2011

TheftPhysical InjuriesPD 1619 (Rugby use)Robbery Rape

Year 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 TotalChild 5657 3283 2644 2471 1955 1825 2158 2735 4246 3856 30830Adult 85776 83704 77253 76758 71226 65944 66846 502665 324083 172847 1151424Total 91433 86987 79897 79227 73181 67769 69004 505400 328329 176703 1182254% of child vs. adult 6.2% 3.7% 3.3% 3.1% 2.6% 2.6% 3.1% 0.5% 1.3% 2.2% 2.6%

Do “Below 15” commit more crimes?

0

1000

2000

3000

4000

5000

6000

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

16-17 yrs old 9-15 yrs old Below 9 yrs

Will Lowering the MACR Protect the Children?

• From Syndicates– NO! If there are truly syndicates using children,

they will always use children whether you lower the MACR or not.

Will Lowering the MACR Protect the Children from the Criminal Justice System?

MACR Lowered

More Children willbe brought to CJS• Torture

More Clogged Dockets

Lengthy Trial• Average

length of Trial is 4-6 Years

Congested Jails• 318%

CICL in Jails as of May 2012 (BJMP)

Region NCR 1 2 3 4A 4B 5 6 7 8 9 10 11 12 13 CAR ARMM TOTAL

Congestion 315 452 367 405 511 79 305 346 258 389 360 383 458 221 236 253 63CICL 14 2 5 8 7 5 12 10 157 16 19 48 3 53 13 8 3 383

Lowering of MACR is Anti Poor

• Most of the CICL commits crime to survive.

• Lowering of the MACR emphasizes on Punishment aspect instead of the Welfare Aspect

59%

11%

11%

10%

9%

Crimes Committed by Children from 2002 - 2011

TheftPhysical InjuriesPD 1619 (Rugby use)Robbery Rape

Lowering of MARC is Anti Poor

• Children of well off family can always post bail thus they will not be brought to Youth Detention Homes or even in Jails

• While Children of poor families will stay in YDH or Jail for as long as his/her case is pending (4-6 years)

What should be done?• IMPLEMENT THE LAW PROPERLY• Jail the mastermind of the syndicates, rehabilitate

the children who had been victimized.• LGU’s should take responsibility in providing

INTERVENTION PROGRAMS to CICL because RA 9344 holds children Accountable but in a way that is appropriate to their age.

Our Call

MARAMING SALAMAT PO