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LEGAL MEMORANDUM

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TO: Atty. Lara Carmela G. Fernando
FROM: Maria Velli C. Badillo (1- 0)
DATE: June 6, 2019
SUBJECT: Proposal to Lower Age of Criminal Liability to Nine (9) Years Old
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KEY FACTS

On January 23, 2019, House Bill No. 8858 (HB 8858) was adopted and approved
by the House Committee on Justice with a vote of 146-341 with no abstentions in
substitution of House Bills Nos. 2, 505, 935, 1609, 2009, and 3973 2, as introduced and
authored by Reps. Fredenil H. Castro, Pantaleon D. Alvarez, Victor A. Yap, Tobias M.
Tiangco, Mercedes C. Cagas, Romeo M. Acop, and Estrellita B. Suansing. It was
principally aimed by HB 8858 to lower the age of ‘social’ liability from fifteen (15) to nine
(9) years old but was later modified to twelve (12) years old3 due to the controversy
received by the proposal and also to be consistent with the senate versions of the bill.

Further sought in the bill is the amendment of the Juvenile Justice Welfare Act of
2006 as gleaned from Republic Acts Nos. 9344 and 10630 to strengthen the social
reintegration programs for children in order to: (1) provide adequate intervention and
diversion measures for children in conflict with the law4; (2) automatically reduce the
penalty to be imposed to children in conflict with the law either by 2 degrees under the
Revised Penal Code or by 2/3 for fixed periods of imprisonment5; (3) construct several
agricultural camps and training facilities facilitated by the Bureau of Corrections and in
partnership with the Technical Education and Skills Development Authority (TESDA in
order to confine convicted children who failed to reform upon reaching 18 years of age
for their successful subsequent reintegration into the community upon their release at the
age of 256; (4) encourage children in conflict with the law to aim for their improvement by
allowing deductions in their service of sentence when they exhibit good conduct and
behavior7; and (5) penalize the parents, foster parents or guardians for their failure to
undergo mandatory counseling or intervention in cases where their children/wards
committed serious crimes or are repeat offenders8.

ISSUE

Whether or not HB 8858 violates the constitutional duty of the State under the
doctrine of parens patriae in defending the right of children to assistance and special
protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development9 by punishing said immature and pre-adolescent children
as provided for by HB 8858.

SHORT ANSWER

No. Contrary to the criticisms raised against the said proposal, to lower the age of
criminal responsibility validates the State’s duty to provide children with an alternative
environment under the protection of the law instead of being returned to their previous
surroundings wherein they will remain to be exploited and abused by their parents, foster
parents, guardians or whomever gains the control over the child, thus placing the child
vulnerable to becoming repeat offenders. The proposed amendment is consistent with
sec. 3 (2) under Article XV of the Constitution that the State must defend the right of

1 https://www.pna.gov.ph/articles/1060324. January 28, 2019


2 https://www.rappler.com/nation/221728-house-2nd-reading-lowering-minimum-age-criminal-responsibility. January
23, 2019
3 https://newsinfo.inquirer.net/1077301/senators-agree-to-12-not-9-as-age-of-criminal-liability. January 25,2019
4 An Act Expanding the Scope of the Juvenile Justice and Welfare System and Strengthening the Social Reintegration

Programs for Children in Conflict with the Law, Amending fir the Purpose Republic Act No. 9344, as Amended,
Otherwise Known as the “Juvenile Justice and Welfare Act of 2006, H.B. No. 8858, 17th Cong. 3rd sess. Sec. 3 (par.
2) (2019)
5 See Note 4, supra Sec. 9
6 See Note 4, supra Sec. 14
7 See Note 4, supra Sec. 11
8 See Note 4, supra Sec. 7
9 Const. Art. XV, Sec. 3 (2)
children against conditions prejudicial to their development by extracting them from
exploitations and to rehabilitate them under the supervision of public agencies by
educating these children with various tools of trade in order to be returned to the society
not anymore as victims of impoverished circumstances but as valuable members of the
general public who will no longer resort to illegal nor illicit activities to survive but are
equipped with respectable vocations and skills.

DISCUSSION

According to a criticism of the proposed amendment, in order for children to


maximize their potential to contribute to the society, they must grow up in a caring,
nurturing and protective environment10. Study11 shows however that most violent
behavior is learned behavior, and that the absence of effective social bonds, together with
a failure of parents to teach conventional norms and values, once being criminal
themselves, as well as the presence of gangs and illegal markets, put children at risk of
later violence. Such is why much of the research that has considered the causes of
delinquency makes use of psychological and sociological frameworks12 as juvenile
delinquency is considered a social problem which could result in damaging public welfare,
as well as to the injury of the child’s psychological development.

Conversely, the Eclectic or Mixed Philosophy under Criminal law, a combination


of both positivist and classical thinking, provides that crimes that are economic and social
in nature should be dealt with in a positivist manner, and the heinous crimes to be dealt
with in a classical manner13. Since juvenile delinquency, in most cases, is considered a
social problem, the positivist theory must then be applied. Research14 shows that the
theory of Individual Positivism is that crime arises because the offender has not been
sufficiently or effectively socialized in society’s values, this may be due to the family’s
ineffectiveness in providing proper socialization, or to wider (social) influences. Behavior
is seen as determined by the person’s antecedents and, therefore, the policy to be
followed is one where offenders are treated, rather than punished. For those who are
incapable of achieving a satisfactory level of socialization, treatment may be replaced by
containment.
Corollarily, while parents have the primary role in child-rearing, it should be
stressed that "when actions concerning the child have a relation to the public welfare or
the well-being of the child, the State may act to promote these legitimate interests 15. It
can likewise be concluded that in the absence of active responsible parenthood over the
child, the State can exercise its inherent power to protect them from conditions prejudicial
to their development such as their habitual environment, or to rehabilitate their
delinquency in manners beneficial to the greater good In order to reintegrate them into
the community by extracting them from further vulnerability of becoming serious offenders
upon adulthood16.

Based on the foregoing, it can be gleaned that lowering the age of criminal
responsibility will validate the duty of the State to foster and protect a child neglected and
abused by their social environment by extracting them from same, which in turn may
result in rehabilitating their mental development by cutting their exposure off from “toxic”
and “noxious” examples from their impoverished circumstances.

10https://www.unicef.org/philippines/press-releases/lowering-age-criminal-responsibility-against-child-rights-unicef.

January 18, 2019


11D.D Elliot, “Environmental Factors Contribute to Juvenile Crime and Violence” Available at
https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=167329. June 2, 2019
12 Liane Alampay, “Risk Factors and Causal Processes in Juvenile Delinquency: Research and Implications for

Prevention” Available at http://116.50.242.171/PSSC/index.php/pjp01/article/download/1403/1335. June 2, 2019


13 https://lawphilreviewer.wordpress.com/tag/criminal-law-book-1-articles-1-10/. June 2, 2019
14Mantle, Fox & Dhami, “Restorative Justice and Three Individual Theories of Crimes” available at

https://pdfs.semanticscholar.org/f2ff/2248c22f975b80a502cabbb0566b51cb3dcc.pdf. June 2, 2019


15 Martin Nery v. Lorenzo, GR No. L-23096 (Apr 27, 1972)
16 Brown & Jolson, “Chief Justice O'Connor 's Juvenile Justice Jurisprudence: A Consistent Approach to Inconsistent

Interests” available at
https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1003&
context=akronlawreview, June 2, 2019

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