Don’t throw the baby out with the bath water

The House of Representatives has reconsidered. Instead of lowering the age of criminality for children down to nine years old as originally proposed by then-Speaker of the House Pantaleon Alvarez in November 2016, the lawmakers approved on second reading last week the substitute bill lowering the minimum age of social responsibility of child offenders to 12 years old from the current 15 years old under Republic Act 9344 as amended by RA 10630 (CNN Philippines, Jan. 24, 2019).
Two years that the bill slept in Congress, and lawmakers only spent two days debating on the bill (amidst passionate social protests) before suddenly approving the bill “at reduced rate,” like in a store’s end-of-season bargain sale. The bill would be taken up for approval on third and final reading in at least three session days.
Speaker Gloria Arroyo said she supports the passage of the measure “because the President wants it” (Ibid.). “Duterte won the May (2016) elections largely because of a vow to kill tens of thousands of drug dealers, also promising on the campaign trail to close a loophole in the juvenile justice system that he said allowed traffickers to use minors as narcotic couriers,” one news agency said (Agence France-Press [AFP] Nov. 21, 2016). The United Nations (UN) children’s agency UNICEF reminded all in a position paper sent through AFP that “Manila is a state party to the UN Convention on the Rights of the Child, which says criminal responsibility below the age of 12 is not acceptable…Jail is no place for a child. It is alarming for children to be institutionalized (sent to a penal institution). It will be retrogression on the part of the Philippine Government (Ibid.).
The “Juvenile Justice and Welfare Act of 2006” — RA No. 9344 set the minimum age for criminal liability at 15 years old in the Philippines, which for 70 years was set at nine years old under the Revised Penal Code (Accralaw.com Aug. 22, 2016). In 2013, RA No. 9344 was amended by RA No. 10630 to penalize, among others, the exploitation of children for the commission of crimes (Ibid.). “Any 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.” (Section 20-C, RA No. 10630).
Those proponents of lowering the age for juvenile criminal liability say that sometimes children used by adults to help commit crimes carry birth certificates to show that they are under 15 years of age — and these children gleefully go scot-free. (The real criminal has planned well to go scot-free himself, ahead of the child.) Yes, it will perhaps be less efficient for the adult criminal to use a nine- or 12-year-old even with a ready birth certificate to show the police, hence the shaky logic of lowering the age of child criminality to “lessen” their exploitation.
“Such a move as lowering the age of criminality has never resulted in lower crime rates. The Philippine experience and the experience of other countries attest to this fact,” then-Secretary of Social Welfare Judy Taguiwalo wrote to a subpanel of the House Committee on Justice and Correctional Reforms that opened deliberations on the House bills on the age of child criminality (ABS-CBN News, Nov. 16 2016). Making the change would likewise result in more children being detained and the government subsequently incurring additional expenditure, she said (Ibid.).
Lowering the age of criminal liability is also “anti-poor” as available data shows that a greater majority of children in conflict with the law come from lower income families, said Taguiwalo. But more importantly, this “violates the fundamental principles of social protection of children as provided for by the law and by international treaties and internationally accepted standards and principles.” There is a need to distinguish between making them responsible for their actions and criminalizing them. RA 9344 makes children responsible without making them criminal and holds children accountable in entirely non-punitive, welfare based and education oriented measures,” she said (Ibid.).
Taguiwalo said a mouthful. She was thereafter not confirmed by the Commission on Appointments, reportedly for her opposition to the pork barrel system, the tax reform package, and her adverse comments on the lowering of the age of criminality (The Philippine Star, Aug. 16, 2017).
The UNICEF said neurobiology studies show that children don’t reach brain maturity until 16 years old. As such, reasoning and impulse of children younger than 16 years old are easily affected by their social environment. What could also add to the mental and emotional damage of children is when they are exposed to violence, particularly if they are from dysfunctional families (ABS-CBN News, Jul. 22, 2016).
The UN organization stressed that lowering the age of criminal responsibility could even have “long-lasting damaging effects on their cognitive, psychosocial, and neurological health; harming their overall development. (This) 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,” the organization said (Ibid.).
At the Senate, the most vocal oppositionist to any lowering of the age of criminality is Sen. Risa Hontiveros. “There is no sense debating and choosing whether the minimum age of criminal responsibility should be pegged at 12 or 9 years old. There is really no difference. Can a 12-year-old compared to a nine-year-old get married, get a driver’s license, participate in elections, buy alcohol and watch R-16/18 films? The obvious answer is no,” she said.
Hontiveros said that instead of thinking about at what age children should be considered as criminals, the government should focus on improving programs that would ensure they would stay out of conflict with the law (Philstar, Jan. 24, 2019).
“We already have laws and we have centers and intervention programs for the existing law and there are psychologists and social workers working to rehabilitate these people (children),” Clinical psychologist and National Social Scientist Lourdes “Honey” Carandang said on a TV interview (CNN Philippines Jan. 24, 2019). “The right thing to do is to do something about the syndicates who are committing the crime and not punish the children who are the victims of these syndicates. That is the most radical and real solution,” she said (Ibid.).
Indeed, our law enforcers should do their jobs right, and yes, catch the big criminals, not the little operators on the ground — as local and world human rights watchers judge the intensive conduct of the anti-drug and crime war waged in our country now. Respect human rights and human life. The end does not justify the means in anyone’s obsession to deliver on election promises.
Almost literally: Don’t throw the baby out with the bathwater!
 
Amelia H. C. Ylagan is a Doctor of Business Administration from the University of the Philippines.
ahcylagan@yahoo.com