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Amicus Curiae

State vs Child: Lowering the age of criminal responsibility

Majken Anika S. Gran

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 children’s 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 youth’s] 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 child’s 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.