Thinking Beyond Politics
By Jenny Domino
House Bill No. 8858 has rightly elicited public outrage for proposing to lower the minimum age of criminal responsibility (MACR) to between 9 to 12 years old. The move is consistent with President Duterte’s 2016 campaign promise to widen the coverage for criminal prosecution in another aggressive effort to wage his “war on drugs.” The logic goes like this — because drug syndicates use children to traffic illegal drugs, lowering the MACR to cover more children would cripple the operations of these drug syndicates.
But the bill only serves to further demonize children, who have already suffered enough victimization from the current administration’s drug war. Notably, Kian delos Santos was only 17 years old when he was killed less than two years ago by police officers in a buy-bust operation. Meanwhile, barely a week had passed since children aged 4 to 12 years old were caught maintaining a drug den by the Philippine Drug Enforcement Agency (PDEA). PDEA was criticized for “parading” the minors to members of the press, wielding guns while requiring them to line up against a wall in what appeared to be a shaming tactic. If House Bill No. 8858 were enacted, children would even be more at risk of trauma and marginalization.
It seems that children are being attacked by all means — from shaming to criminal prosecution and even outright killing. Never mind the ridiculousness of targeting a whole class of persons legally, psychologically, and economically incapable of defending itself against the full might of the state.
It is not only the child’s vulnerability but their capacity to mature and develop that justify the child’s special protection under the law. No less than the 1987 Philippine Constitution, the Convention on the Rights of the Child (CRC) that the Philippines has ratified, and domestic legislation recognize the special status of children. Article II, Section 13 of the 1987 Constitution recognizes the “vital role of the youth in nation-building” and commits to “promot[ing] and protect[ing] their physical, moral, spiritual, intellectual, and social well-being.” Article XV, Section 3 provides 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 lowering the MACR, the state would be the first to irreversibly stunt the child’s development.
Under the CRC, the arrest, detention, or imprisonment of a child should only be used as a measure of last resort. House Bill No. 8858, however, pushes arrest, detention, and imprisonment as a priority by broadening the coverage of children in conflict with the law (CICL). Even though the CRC authorizes the state-party to set the MACR, it nonetheless encourages the adoption of measures, whenever appropriate and desirable, for dealing with such children “without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.” This includes the availability of dispositions such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programs and other alternatives to institutional care for the purpose of ensuring that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offense.
The Juvenile Justice and Welfare Act of 2006 guarantees certain rights to CICL, such as the right to automatic suspension of sentence and to be treated in a manner that considers their age. Section 49 of the Act also enjoins local government units to establish youth detention homes (Bahay Pag-asa) for the rehabilitation of CICL. However, these Bahay Pag-asa centers have proven to be ineffective sites for rehabilitation, owing to their unsanitary and crowded conditions. UNICEF representative Lotta Sylwander similarly lamented the poor implementation of the law.
PENALIZING INSTEAD OF PROTECTING
The move to lower the MACR contradicts the country’s treaty and constitutional commitments, and signals another step backwards for human rights in the Philippines. It bears emphasis that even the Rome Statute, which prosecutes persons for the most serious international crimes, exempts people under 18 from criminal responsibility. This means that the International Criminal Court (ICC) does not have jurisdiction over persons under 18 years old regardless of their involvement in the commission of acts constituting genocide or crimes against humanity, the worst of all crimes.
In 2016, the ICC Office of the Prosecution published its policy on children, officially adopting a child-sensitive approach in conducting its work and, for this purpose, recognized the best interests of the child as the primary consideration. To promote this priority, it deemed “crimes against or affecting children” as particularly grave, and included the assessment of any child-related crimes in analyzing the gravity of potential cases in its preliminary examination of situation-countries.
In the Philippines, the opposite is true. Instead of prioritizing crimes that specifically affect children, Congress has chosen to prioritize the treatment of children as criminals. If a court that adjudicates the most serious international crimes recognizes the need to treat children with special consideration, then all the more should the state, which ironically assumes a parens patriae role toward minors in certain cases. The point of the parens patriae doctrine is to allow the state to intervene and protect children who, because of age or incapacity, are inherently in an unfavorable position vis-à-vis other parties. With House Bill No. 8858, however, it appears that the Philippines, as the state, would be the first to deliberately abandon the welfare of Filipino children and adopt a draconian approach. Where then can children turn to for protection when all else fails?
Jenny Domino is a lawyer and a non-resident fellow for human rights at Stratbase ADR Institute.