IV. Lowering Age of Discernment Controversy A.

NEGATIVE SIDE

Children in conflict with the law should not be perceived as criminals because they are victims, victims who should be helped to correct his/her mistakes.

According to Melissa San Miguel of Salinlahi Alliance for Childrens Concern, Lowering age discernment wont solve juvenile delinquency. Children in conflict with the law should not be perceived as criminals because they are victims, victims who should be helped to correct his/her mistakes. It is absurd to judge the law as a failure when in fact it has not been implemented as it should be. We are dismayed that one of the more progressive laws concerning the welfare of children is now being considered for amendments or even suspension. The governments failure to address the deplorable situation of Filipino children extreme poverty, hunger and lack of educational opportunities make them vulnerable to involvement in crime and violence. As of 2008, about 35 percent of children aged six to 11 and 54 percent of 12 to 15 year-olds are out of school youths. Their exposure to life in the streets makes them more accessible to criminal syndicate groups.

Childrens rights advocates said, Lowering the age of discernment and the suspension of the law will not solve the problem. In the same vein, Ma. Victoria S. Diaz of John J. Carroll Institute on Church and Social Issues said, Jail is not a place for a child. Diaz said putting youth offenders in prison will not resolve the root causes of juvenile delinquency. She added that the increasing number of juvenile delinquents only reflect the failure of the government to respond to these problems. Gerry Bernabe, secretary general of Payo said putting youth offenders in jail will only aggravate juvenile delinquency. Justice system for children in conflict with the law should be different, they should not be included in a jail with adult prisoners. The Juvenile Justice Welfare Act is supposed to design a new set-up intended for the best interest of the child, however, the law is not being fully implemented. A child who commits a crime should not be sent to jail. It is not their fault, they did that because the government is not giving them what they needed.

Lawyer Rommel Alim Abitria of Humanitarian Legal Assistance Foundation (HLAF), a non-profit and non-government organization assisting indigent prisoners including CICL, pointed out that children should not undergo the same procedures as that of adult offenders. Even adults who present themselves in court are frightened, how much more for a twelve year old kid? Prisoners here in our country are not treated

humanely. In one prison cell where the capacity is only 20 prisoners, 100 prisoners are locked up. While the RA 9344 states that all city and provincial government units must establish youth detention homes, it was never implemented. Most child delinquents belong to poor families. These minors are committing these crimes because of poverty and because these minors belong to poor families, only a few of them can afford to post bail. A child who cannot post bail stays in prison with little chance to rebuild his/her future.

The problems of street children and juvenile delinquents are much related social problems. To survive in the street you almost have to become delinquent. Exposed to criminal elements these children are vulnerable to prostitution, drug addiction and pushing and commission of crimes. Most street children have become juvenile delinquents either out of necessity (because they are poor) or through force (because of the syndicates). Young people in the streets are also criminalized and stigmatized for no obvious crime committed. So many times the streets were cleaned up at the start of the tourist season and as a consequence many street children were jailed because of vagrancy laws.

A large problem arose from the treatment accorded to the juveniles when they were placed in jails. Most juvenile delinquents were not segregated from the hardened adult criminals in the biggest jails in the Philippines, such as in the Muntinlupa jail outside Manila,

so that after their release they went back in the street with more knowledge of crime. This severely hampered the social integration of the youth offenders after they left prison. Chances were high that these young offenders would become chronic delinquents and eventually hardened criminals

The criminal justice system provides inadequate rehabilitation and mostly punishes criminal behaviour of youth. However the international treaties, for which the Philippines was a signatory, put emphasis on the fact that children should not be detained in jails and in exceptional cases, if they are detained, then only for a very short time. Because of lack of funds there are still not enough programs for education, vocational training and rehabilitation centres.

Young offenders, many of them first offenders were mixed with professional, hardened criminals, thereby turning jails and prisons into schools of criminality. This non-segregation can be one reason why the numbers of street children and crimes were rising. Inadequate health care (often totally absent) and subhuman conditions in the jails and prisons condemned many a young inmate to an early death or to inflict irreparable harm to their physical and mental health (4).

While the State as Parents Patriae was expected to offer and to give special care to its young offenders, it instead negligently allowed

a number of young people to enter the gates of jails and prisons with the least amount of legal protection during the litigation process. There were no juvenile courts, lawyers, psychologists, probation officers who were specialized in dealing with the youth.

Children in conflict with the law were serving stiff sentences, doing time over and above their sentence, awaiting action on their appeal for too long a time with no hope of being attended to soon. Often they were unable to avail themselves of the benefits of pardon or parole due to lack of knowledge about these options. The resolution of cases in the courts was extremely slow and often unfinished. As most young detainees had no money to obtain bail this contributed to overcrowding in the prisons. Another contributing factor to the congestion of jails and detention centres was the lack of the Juvenile and Domestic Relations Court as it had been abolished which increased the backlog of untried cases.

A danger at that time was also the reintroduction of the death penalty. Some of the young inmates could get this sentence if they had reached the adult age when on trial (5) In the case of Padua vs. People of the Philippines, the accused, Michael Padua, a minor, seventeen (17) years old was charged before the RTC, Branch 168, Pasig City of violating Section 5, Article II of Republic Act No. 9165, otherwise known as the "Comprehensive Dangerous Drugs

Act of 2002," for selling dangerous drugs. When arraigned on October 13, 2003, Padua, assisted by his counsel de oficio, entered a plea of not guilty. During the pre-trial conference on February 2, 2004, however, Paduas counsel manifested that his client was willing to withdraw his plea of not guilty and enter a plea of guilty to avail of the benefits granted to first-time offenders under Section 70 of Rep. Act No. 9165. The prosecutor interposed no objection. Thus, the RTC on the same date issued an Order stating that the former plea of Padua of not guilty was considered withdrawn. Padua was re-arraigned and pleaded guilty. Hence, in a Decision dated February 6, 2004, the RTC found Padua guilty of the crime charged: In view of the foregoing, the Court finds accused Michael Padua y Tordel guilty of violation of Sec. 5 Art. II of R.A. No. 9165 in relation to R.A. No. 8369 Sec. 5 par. (a) and (i) thereof, and therefore, sentences him to suffer an indeterminate sentence of six (6) years and one (1) day of Prision Mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum and a fine of Five Hundred Thousand Pesos (P500,000.00). No subsidiary imprisonment, however, shall be imposed should the accused fail to pay the fine pursuant to Art. 39 par. 3 of the Revised Penal Code. Padua subsequently filed a Petition for Probation dated February 10, 2004 alleging that he is a minor and a first-time offender who desires to avail of the benefits of probation under Presidential Decree No. 968 otherwise known as "The Probation Law of 1976" and Section 70 of Rep. Act No. 9165. He further alleged that he possesses all the qualifications and none of the disqualifications under the said laws.

The Supreme Court ruled that suspension of sentence under Section 38 of Rep. Act No. 9344 could no longer be retroactively applied for petitioners benefit. Section 38 of Rep. Act No. 9344 provides that once a child under 18 years of age is found guilty of the offense charged, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence. Section 40 of Rep. Act No. 9344, however, provides that once the child reaches 18 years of age, the court shall determine whether to discharge the child, order execution of sentence, or extend the suspended sentence for a certain specified period or until the child reaches the maximum age of 21 years. Petitioner has already reached 21 years of age or over and thus, could no longer be considered a child for purposes of applying Rep. Act 9344. Thus, the application of Sections 38 and 40 appears moot and academic as far as his case is concerned. WHEREFORE, the petition is DENIED. The assailed Decision dated April 19, 2005 and the Resolution dated June 14, 2005 of the Court of Appeals are AFFIRMED.