HUMAN RIGHTSChildren in conflict with the law

How old is old enough?

Childhood is a relative term. While the Philippine government adopted the UN CRC (convention on the rights of children) definition of children as those below 18 years of age, socio-cultural realities make “adults” out of Filipino children even before they reach 18.

For many adults, a 15-year-old who bears a child willingly or unwillingly ceases to be a girl-child but a young mother. An 11-year-old who takes on the task of tilling the fields ceases to be a boy but a labouring farmhand

A 16-year-old who spends most of his time at a wage-factory ceases to be a young adolescent but a breadwinner. A 9-year-old girl made to peddle her body on the streets becomes a commodity. An 8- year-old boy on the street stealing someone’s money for food is a criminal.

Who are the children in conflict with the law?

The term ‘children in conflict with the law’ refers to anyone under 18 who comes into contact with the justice system as a result of being suspected or accused of committing an offence. Most children in conflict with the law have committed petty crimes or such minor offences as vagrancy, truancy, begging or alcohol use.

Are there any laws that promote the protection of children in conflict with the law?

International law

According to Articles 37 and 40 of the Convention on the Rights of the Child (1989), children in conflict with the law have the right to treatment that promotes their sense of dignity and worth, takes into account their age and aims at their reintegration into society.

United Nations Children’s Fund

Also, placing children in conflict with the law in a closed facility should be a measure of last resort, to be avoided whenever possible. The convention prohibits the imposition of the death penalty and sentences of life imprisonment for offences committed by persons under the age of 18.

Domestic Law

RA 9344 Or the Juvenile Justice and Welfare Act of 2006. It shall cover the different stages involving children at risk and children in conflict with the law from prevention to rehabilitation and reintegration.

RA 10630 or the act strengthening the juvenile justice system in the Philippines

The Act maintained the exemption from criminal liability of children aged fifteen (15) years old.

However, a child who is above 12 years of age up to 15 years of age and who commits:

Parricide Murder Infanticide Kidnapping And serious illegal detention where the victim is killed

or raped Robbery with homicide or rape Destructive arson Rape Carnapping where the driver or occupant is killed or

raped

And offenses under Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002) punishable by more than 12 years of imprisonment, shall be deemed a neglected child under Presidential Decree No. 603 As amended and the child shall be mandatorily placed in a special facility within the youth care faculty or Bahay Pag-asa called Intensive Juvenile Intervention and Support Center.

Moreover, repeat offenders, or children who have committed crimes more than three times, would also be considered as neglected children and, as such, must undergo intervention programs supervised by the local social welfare and development officers. The law would impose the maximum penalty for those who exploit children such as syndicates, for the commission of criminal offenses.

What are Children’s rights?

Rights of children in conflict with the law under the local justice system.

(a) the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment;

(b) the right not to be imposed a sentence of capital punishment or life imprisonment, without the possibility of release;

(c) the right not to be deprived, unlawfully or arbitrarily, of his/her liberty; detention or imprisonment being a disposition of last resort, and which shall be for the shortest appropriate period of time;

Facts and Figures•More than 1 million children worldwide are detained by law enforcement officials. •In many prisons and institutions, children and young persons are often denied the right to medical care, education and individual development

(d) the right to be treated with humanity and respect, for the inherent dignity of the person, and in a manner which takes into account the needs of a person of his/her age. In particular, a child deprived of liberty shall be separated from adult offenders at all times. No child shall be detained together with adult offenders. He/She shall be conveyed separately to or from court. He/She shall await hearing of his/her own case in a separate holding area. A child in conflict with the law shall have the right to maintain contact with his/her family through correspondence and visits, save in exceptional circumstances;

(e) the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his/her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on such action;

(f) the right to bail and recognizance, in appropriate cases;

(g) the right to testify as a witness in his/her own behalf under the rule on examination of a child witness;

(h) the right to have his/her privacy respected fully at all stages of the proceedings;

(i) the right to diversion if he/she is qualified and voluntarily avails of the same;

(j) the right to be imposed a judgment in proportion to the gravity of the offense where his/her best interest, the rights of the victim and the needs of society are all taken into consideration by the court, under the principle of restorative justice;

(k) the right to have restrictions on his/her personal liberty limited to the minimum, and where discretion is given by law to the judge to determine whether to impose fine or imprisonment, the imposition of fine being preferred as the more appropriate penalty;

(I) in general, the right to automatic suspension of sentence;

(m) the right to probation as an alternative to imprisonment, if qualified under the Probation Law;

(n) the right to be free from liability for perjury, concealment or misrepresentation; and

(o) other rights as provided for under existing laws, rules and regulations.

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 do we need a separate system of justice to deal with children?

It promotes rehabilitation that involves families and communities as a safer, more appropriate and effective approach than punitive measures. Justice systems designed for adults often lack the capacity to adequately address these issues and are more likely to harm than improve a child’s chances for reintegration into society.

International organizations such as UNICEF strongly advocates diversion (directing children away from judicial proceedings and towards community solutions), restorative justice (promoting reconciliation, restitution and responsibility through the involvement of the child, family members, victims and communities), and alternatives to custodial sentencing (counselling, probation and community service).

Building a protective environment for children.Government’s commitment and

capabilityThese are crucial to promote and support policies that encourage the use of alternatives to deprivation of liberty. A proper approach to juvenile justice also requires that efforts be made to prevent children from coming into conflict with the law in the first place. This is work for the entire society, not just the government.

Attitudes, customs and practices Children in conflict with the law may be portrayed as ‘wicked’ or threatening, and presumptions of character need to be challenged. The establishment of appropriate juvenile justice mechanisms can be difficult if public opinion favours tougher responses and harsher sentences.

Open discussion

The media can promote appropriate approaches to children in conflict with the law, including probation and community service. Objective and responsible reporting of crimes committed by children – and the abuses they face in contact with the law – can increase public support for juvenile justice.

Capacity of families and communities Capacities need to be strengthened to enable community involvement in the process of restorative justice. Law enforcement officials should be familiar with constructive approaches that make it possible to avoid formal arrest and detention of children in conflict with the law. Capacity and knowledge of juvenile judges, magistrates, social workers and police need to be strengthened and increased in the area of juvenile justice.

Essential services, including for prevention, recovery and reintegration Services should be in place offering community based and family-focused assistance so that children can achieve rehabilitation and avoid repeat offences. Monitoring, reporting and oversight These are needed to determine the number of children in detention, the proportion of those awaiting trial and trends in sentencing.

Monitoring can ensure that detention is neither illegal nor arbitrary, that children have access to all basic social services, and that they are not detained alongside adult prisoners and exposed to violence and abuse.