Chapter II

Chapter II REVIEW OF RELATED RESEARCHES

A. Conceptualizing ―Children in Conflict with the Law‖ What is a child? A child is ‗every human being below the age of 18 years or less, unless under the law applicable to the child, majority is attained earlier‖.1 A child is anyone who is 18 years old or under is considered a child unless otherwise specified by the law thus a ‗child in conflict with the law‘ is anyone who is 18 or younger who has essentially broken the law or simply committed a crime. ‗Children in conflict with the law‘ is a term which UNICEF defines as referring to ―anyone under 18 who comes into contact with the justice system as a result of being suspected or accused of committing an offense.‖ 2 According to the Philippine Constitution specifically according to Republic Act No. 9344, children in conflict with the law ―refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws.‖3 According to the Philippine E-Legal Forum a child in conflict with the law is someone who ―at the time of the commission of the offense is below eighteen years old but not less

than fifteen (15) years and one (1) day old.‖4 B. History of Children in Conflict with the Law Society‘s concern for children is very evident in the large collection of literature on their situation, issues and concerns, and development. However, literature that specifically delves into the intricacies of the situation of CICL is very limited (Understanding CICL). Literature on 1

No Author, ―A Situationer of Street Children in the Philippines‖ http://www.streetchildrenphilippines.org/A%20SITUATIONER%20OF%20STREET%20CHILDREN%20IN%20THE%20PHILIPPINES.pd f 2 Primer C. Pagunuran, ―Children in conflict with the law‖ http://www.philippinestoday.net/index.php?module=article&view=1098 3 No Author, ―Republic Act No. 9344‖ www.lawphil.net/statutes/repacts/ra2006/ra_9344_2006.html 4 No Author, Philippine e-Legal Forum

studies on CICLs are very few and are only limited to certain areas in the Philippines. Most of the studies conducted on CICLs only focus on urban areas. Police records in 1999-2001 revealed that the majority of children arrested were boys (79%). In Davao City, of the 497 arrested by the police (January-June 2002), the majority (83%) were also boys. These findings were corroborated by the Metro Manila study, which found that the majority (89%) of the 706 CICL handled by the Family Courts in 2001-2002 were boys. Boys also dominated the prisons, with 95% in Cebu in 1999-2001 and 91% in Davao as of November 2002. (Juvenile Justice Process) In Cebu, majority of CICLs (71%) were alleged to have committed offences against property. In Davao, Cebu and Metro Manila the most common type of offences committed by CICLs are offences against property. According to police records, 5,976 children were arrested in Cebu, majority of which (71%) were alleged to have committed offences against property, 37% of 2,306 children arrested in Davao and 38% of 706 court cases studied in Metro Manila. (Juvenile Justice Process). Substance abuse accounted for only 13% of CICL offences, and came fourth after offences against the person (15%) and violations of local ordinances (14%). Again, marked variations the different courts in Cebu were observed – in Mandaue City, almost half of all the cases (47%) involved substance abuse while in Cebu City, it was only 15%.5 Offences against local ordinances (especially those on curfew and vagrancy) were the third most common offence in both the Metro Manila (14%) and Davao (23%) studies. In contrast, offences against ordinances and vagrancy were very few (less than 5% of recorded offences) in Cebu. According to a study conducted by researchers from the organization Save the Children UK 80% of the CICLs in Cebu offended with an accomplice which is usually another child. While in Metro Manila, where 41% of the CICL had an accomplice and for almost all

5

Ateneo Human Rights Center, BREAKING RULES: Children in Conflict with the Law and the Juvenile Justice Process THE EXPERIENCE IN THE PHILIPPINES, ― Save the Children UK p. 35

(92%) of them, the accomplices were children. In Davao, if the offence was substance abuse, it was usually a group offence.6 According to the same study mentioned before this paragraph; most of the CICLs were arrested for the first time. 94% of 5,233 children arrested by the police in 1999-2001 in the Cebu study; 91% of 452 CICL arrested based on the city police records for January-June 2002 in the Davao study; and 99% of 706 children‘s cases examined at the 22 Family Courts in 2001-2002 in the Metro Manila study.7

C. DSWD‘s Programs for Children in Conflict with the Law Crimes are committed every day in the Philippines. Anyone in the country can commit an offence and children are no exceptions. By rule, and offender needs to be penalized and penalties for an offense committed by an adult is not to be taken lightly. Taking this into consideration, Rules regarding prosecution, trial and penalization of youth who took a wrong step against the law was formulated to protect the youth as well as discipline them to correct their actions. It is important that we know a thing or two about the law that governs juvenile offenders but before we can tackle the law that protects and disciplines them, we must first know how to tell a youth offense from an adult crime. The Presidential Decree No. 603 (Child and Youth Welfare Code) defines youthful offences as those committed by a child, minor or youth, including one who is emancipated in accordance with the law, who is over nine but under 18 years old at the time of the commission of the offence. Under the Revised Penal Code, a child under nine years of age at the time the offence was committed is exempt from criminal liability. This is also called the ―age of absolute irresponsibility‖.8

6

Ibid p. 36 Ibid p. 38 8 Celia V. Sanidad-Leones, ―Effective Preventive Measures for Youth at Risk in the Philippines‖, pp. 152) 7

As a rule of thumb that applies to both youth and adult offender, everyone who committed a crime against the law should be penalized. And according the rule of penology, there are various ways on correcting the action of a youth offender such as confinement to a correctional facility such as the jail prison in jurisdiction of the BJMP. Of the total inmate population as of September 2004, an actual inmate population of 2, 211 are CICL. Rehabilitation programs and services are unceasingly provided to these offenders. These include Social Services, Homelife Services, Educational Services, Health and Dental Services, Economic and Livelihood Projects, Recreation and Sports Activities, Development and Cultural Activities and Spiritual Programs.9 Another type of correctional action for CICL is taking the CICL to a community based rehabilitation setting. Right now, About 1,340 youth offenders are confined in various regional rehabilitation centers for youth nationwide while 5,651 of youth offenders are under the community-based rehabilitation program.10 As a part of the rehabilitation system for CICL, the government offers various ways and programs and the DSWD implements both community-based and non-institutional and centerbased or institutional programs for youth offenders.

I.

Center based programs

1. Casework/group work services — the focus is on treatment and rehabilitation of children who have undergone traumatic experiences that may affect their growth and development as human beings. 2. Organization of support groups — examples are survivor groups or parent groups, etc. to assist in the rehabilitation efforts of children victims.

9

Ibid Ibid

10

3. Psychological and psychiatric intervention — refers to tests and other modes of assessment as well as therapeutic sessions extended to the child to determine aptitudes, capacities, interests and behavioral problems to facilitate treatment in accordance with individual needs. 4. Medical services — is the form of referral for medico-legal examination, hospitalization and medical treatment if indicated. 5. Livelihood service — refers to the provision of skills training and grant of capital assistance to enable the child and family to engage in income producing activities to alleviate their financial difficulties and improve their economic conditions. 6. Group living services/ home-life services — this provision of well-balanced, organized and nonformal activities to the children which are geared toward achievement of treatment/rehabilitative goals for the child and the group as a whole. 7. Educational services — provides opportunities for the continuing education of the children through formal or non-formal education in cooperation with the Department of Education and NGOs. 8. Spiritual/religious activities — attendance at church, bible studies and fellowships that would bring the children to the knowledge of their Creator. 9. Functional literacy — provides alternative education, cultural activities such as art and music session, theatre workshops, tutoring, spiritual guidance to develop creativity and critical thinking. 10. Provision of limited financial assistance — to meet needs for food, clothing, footwear, transportation assistance, school supplies and emergency needs for medicines. 11. Issuance of travel clearance — to minors travelling alone or with only one parent. 12. Recreational, sports and other socio-cultural activities — the provision of a wide range of both indoor and outdoor activities to encourage and motivate the children to participate on the basis of their interests and needs. As much as possible, community facilities can be used.

II.

Community based programs

1. After care services — are community-based support services designed to strengthen family life. These

are

provided

to

those

reunited

with

their

families/guardians

from

the

evacuation/rehabilitation centers in order to facilitate the child‘s readjustment and reintegration into his family and the community. 2. Conduct of Critical Incident Stress Debriefing (CISD) — a stress management strategy designed to assist children in handling stress caused by armed conflict to prevent trauma and impairment. The Senior Social Worker and the Municipal Social Worker Development Office (MSWDO) shall conduct this activity which may consist of games, songs, storytelling, drama, arts, crafts and others. 3. Family reunification and counseling — an intervention that enables unaccompanied displaced children to be reunited with their families. Parents and other members of unaccompanied children are immediately located through tracing and other services. They are also made aware of the dynamics of their children and the roles and responsibilities of each member in the treatment and rehabilitation process. Family care within the child‘s own community is considered as the first placement option. 4. Socio-legal services — the following services are provided to Children in Conflict with the Law: a. Diversion / Mediation - the youth offender is diverted to the Juvenile Justice System such as the Barangay Lupong Tagapamayapa (Village Justice System) for amicable settlement of his case, community work or other arrangement and parent-child counseling. Through these interventions, the filing of complaints is prevented. b. Release on Recognizance - this socio-legal process seeks to release from detention a youth offender who has committed a minor offence. The social worker conducts a case study and recommends to the Court the youth‘s release to his parents, relatives or other responsible person in the community who will be capable of providing him with protection and supervision while awaiting arraignment or trial. He ensures the youth‘s presence during court hearings.

c. Custody Supervision - is a process that provides an opportunity for the youth offender to serve a suspended sentence and to undergo rehabilitation under the care and custody of his/her family or relative or responsible person in the community subject to visitation and guidance of the social worker.

III.

Philippine National Police The Philippine National Police carries out a Child Protection Program and initiates activities to promote the welfare of children. The most acknowledged program of the PNP was the establishment of the Women and Children‘s Protection Desk in every police station throughout the country to attend to cases of women and children victims of violence. This program was in coordination with the National Commission on the Role of Filipino Women (NCRFW), the National Police Commission, the DSWD and with the support of NGOs like the Soroptimist International and Rotary Clubs. As of 2004, about 1,700 Women‘s Desks were established by the PNP. Simultaneous with the establishment of desks, was the carrying out of seminar-workshops for policewomen and policemen assigned to handle cases of women and child victims of violence.

1. Training and other Capacity-Building Activities for WCPD Officers — improves the working knowledge of the police about the rights of women and children, the proper treatment and handling of women and children cases, and the synergy of actions and collaboration among the stakeholders and service providers. 2. Other Skills Enhancement Programs — were conducted by foreign police experts on women and children through bilateral agreements such as: Women and Children Protection Course (UK); Sexual Assault Investigation Course (Australia); and Child Abuse Treatment Course (France). It also embarked on partnerships with the Save the Children-UK for the training of the Cebu City Police officers on Juvenile Justice. Currently, it is undertaking an RP-UNICEF Country Program for Children (CPC V).

3. Production of Information-Education Campaign materials — the WCD officers use the minihandbook on ―Management of Cases of Children in Especially Difficult Circumstances‖ which contains certain procedures in the handling of children‘s cases. The PNP Directorate for Investigation and Detective Management (DIDM) has published the ―PNP Handbook on Child Abuse and Neglect‖ which deals with child interview techniques; the dynamics of child sexual abuse; and its medico-legal implications. A handbook for police personnel about HIV/AIDS was also published entitled ―HIV-AIDS Prevention: What the Police Should Know‖. 4. Outstanding Women and Children‘s Desk Officers — the PNP strengthened its ties with various Rotary Clubs by conducting this annual search which was initiated in 1995. It aims to recognize deserving members of the WCDO. 5.

Police Diversion of CICL through Case Conferencing — after apprehension, an intake form must be filled in to determine whether the CICL has to be subjected to an appropriate diversion program. At this stage, the police and the social worker shall call the parties in interest from both sides to discuss with them the direction of the case and the intervention needed for the CICL. The principal aim of the diversion is to exhaust all possible remedies balancing accountability of the child, his competency to become a renewed person, and safety on the part of the community.

D. Laws Governing Children in Conflict with the Law In any crime committed punishment must be granted but what if the person or people involved with the crime are children whether or not the act was done willingly or unwillingly. The Philippine Constitution addresses a whole range of laws and as such some laws address the protection and rights of children. In addition, the Philippine Congress and the Supreme Court have provided a specific set of laws and rules for dealing with ―Children in Conflict with the Law‖. These rules include the following:

1. Republic Act No. 8369 or the Family Courts Act. Republic Act No. 8369 was passed on 1997 and ―established family courts all over the country and identified their jurisdiction.‖11 2. Rule on Juveniles in Conflict with the Law. This was issued by the Supreme Court in February 2002; this rule now implements Presidential Decree (PD) 603 and other laws. ―It supersedes the Rules and Regulation on the Apprehension, Investigation, Prosecution and Rehabilitation of Youth Offenders (1995) and the Revised Rules on Criminal Procedure for CICL (1932) but both these laws are supplementary on those areas not covered by the Rule on Juveniles in Conflict with the Law.‖12 3. Rule on the Commitment of Children. This ruling took effect in April 2002 under the Administrative Memorandum [AM] No. 02-1-19-SC. ―It is the procedure applied in court when a child is legally entrusted to the care of the Department of Social Welfare and Development (DSWD) or any duly licensed child-placement or childcare agency or individual (parent/ guardian or any interested party). This Rule applies to: (1) a dependent child, without parent/ guardian, or whose parents/ guardian for good reason wish to be relieved of care and custody and so is dependent upon public support; (2) an abandoned child; and (3) a physically or emotionally neglected child. If the CICL is found to be one of these children, the DSWD or any licensed childplacement or child-care agency may file a petition for the commitment of the child.‖13 4. Republic Act No.7610 (1991) or Special Protection of Children against Child Abuse, Exploitation and Discrimination

11

No Author, Republic Act No. 8369 ―http://www.lawphil.net Ateneo Human Rights Center, BREAKING RULES: Children in Conflict with the Law and the Juvenile Justice Process THE EXPERIENCE IN THE PHILIPPINES, ― Save the Children UK p. 18 13 Ibid p. 18 12

5. Barangay Legislation. Barangay legislation is very important in undertaking a diversion from the formal justice system. It is based on two major legislations, PD 603 and the Katarungang Pambarangay (Barangay Justice System). ―PD 603 (1974) mandates the establishment of the barangay council for the protection of children (BCPC), which is a multi-sectoral body tasked with formulating policies and programs to promote and protect children‘s rights at the barangay level.‖14 6. Local Ordinances. The Local Government Code gives the city, the municipality and the barangay the power to enact laws at their respective levels of governance. Local authorities have produced both penal and non-penal ordinances. In some areas, there are local penal ordinances that apply only to children such as violation of curfew, substance abuse, anti-peddling, smoking and use of tobacco, loitering and playing video games. ―In Cebu City, the major ordinance violated is City Ordinance (CO) 1361, which rules against littering. With the enforcement of this ordinance, children are arrested while seeking food, plastic articles and bottles from the rubbish, a graphic example of ―survival offending.‖ The ultimate punishment of custody is sometimes imposed, ranging from one day to one year. Although graduated fines are often the most likely sentences, failure to pay could still lead ultimately to custody.‖15 In Davao, the Davao City Children‘s Welfare Code became an ordinance in 1994 with the United Nations as its framework. Though it did not address issues concerning CICL it has a curfew provision for children less than 15 but stipulates that law enforcers should escort these children home. ―It emphasizes parents‘ responsibility to keep their children at home which, if ignored by their children, could

14 15

Ibid p.18 Ibid p.19

result in the parents being punished by doing community service.‖

16

The law

enforcers still follow the city laws on curfew circa 1957, which considered curfew breakers as law offenders. ―As a result, children are locked up in congested police stations overnight. This is against the new Code and is an example of how these local ordinances are interpreted in a way that suits the convenience of the enforcers and ignores the rights of the child.‖17

16 17

Ibid p.19 Ibid p.19