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Child Participation in the Philippines:

Reconstructing the Legal Discourse of Children and Childhood

by

Rommel Salvador

A thesis submitted in conformity with the requirements


for the degree of Doctor of Juridical Science
Faculty of Law
University of Toronto

Copyright by Rommel Salvador 2013

Child Participation in the Philippines:


Reconstructing the Legal Discourse of Children and Childhood
Rommel Salvador
Doctor of Juridical Science
Faculty of Law
University of Toronto
2013
Abstract
This thesis explores the participation of children within legal discourse by looking at how laws
and policies engage or disengage children. The basic premise is that to understand childrens
participation is to confront the discourse of children and childhood where we uncover
underlying assumptions, interests and agendas that inform our conception of who the child is
and what the experience of childhood entails. Specifically, the thesis examines child
participation within the Philippine legal framework by looking at the status, conditions and
circumstances of children in four contexts: family, educational system, work environment and
youth justice system. It argues that our conceptions of children and childhood are not only
produced from a particular discourse but in turn are productive of a particular construction and
practices reflected in the legal system.

In its examination, the thesis reveals a complex Philippine legal framework shaped by
competing paradigms of children and childhood that both give meaning to and respond to
childrens engagements. On the one hand, there is a dominant discourse based on universal
patterns of development and socialization that views children as objects of adult control and
influence. But at the same time, there is some concrete attraction to an emerging paradigm

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influenced by childhood studies and the child rights movement that opens up opportunities for
childrens participation.

In advocating for broader acceptance of the emerging paradigm, the thesis identifies distinctive
understandings of this paradigm in the Philippine context. A central argument is that in
reconstructing the legal discourse of children and childhood, childrens participation grounded
on the emerging paradigm does not necessarily introduce new understandings of children and
childhood in the Philippines but, in fact, confirms existing beliefs and practices that articulate
deeply held indigenous relational values. Within this contextualized understanding of the
emerging paradigm, the thesis articulates childrens participation as: recognition of children as
rights-bearers; acknowledgment of childrens realities as lived and experienced by them; and
respect for the meaningful and constitutive relationships that children establish. Consequently,
the intrinsic quality and meaning of actions of the child and towards the child take on a
significant legal, social and moral value.

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Acknowledgments

I am profoundly grateful for having embarked on this intellectual and personal journey with a
truly dedicated and exceptional mentor, Prof. Carol Rogerson. She was deeply engaged in every
step of this road I travelled. She knew when to push and when to pull back. She has been a true
source of admiration and inspiration. I am humbled and overwhelmed by her trust and
confidence in me; her unwavering support and encouragement; and her selfless commitment to
share her intellectual expertise and see me through in this research. I have nothing but deep and
profound respect for her.
I am thankful to Profs. Jennifer Nedelsky and Brenda Cossman for their thoughtful, valuable
and challenging insights all throughout this process that have helped me look at a multitude of
issues that my dissertation has raised. Not only have they been exceptionally committed to this
research but they have also been incredibly supportive and encouraging. Truly, they have been
instrumental in this research of mine. I would also like to thank the external and internal
members of my examination committee, Prof. Nicholas Bala, who travelled from the Faculty of
Law of Queens University to engage with me for my defense and Prof. Kerry Rittich. Prof.
Bala provided very insightful comments and raised critical issues having done so much work
with children and being a leading expert in the area of children and the law. Prof. Rittich has
pushed me even more towards intellectual inquiry and has encouraged me to be even more
critical with the issues raised by my research. Their engagements have made this process even
more intellectually fulfilling and stimulating.
I am also thankful to the Faculty of Law of the University of Toronto, especially the Graduate
Program for having been my home while I embarked on this journey. I especially would like to
thank Profs. David Dyzenhaus and Jutta Brunnee who have always supported and encouraged
me throughout my doctoral studies. Their belief in me has provided that extra push I needed
during times of discouragement and doubt. I would also like to express my deep gratitude and
appreciation to Julia Hall whose untiring commitment and dedication to the Graduate Program
and all its students have been a constant source of inspiration. She has been truly helpful and
supportive throughout this entire journey of mine.
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I would also like to thank all the institutions and individuals who have provided academic,
administrative and personal support throughout my doctoral studies. I would especially like to
thank the very able and helpful staff of the Bora Laskin Law Library of the Faculty of Law of
the University of Toronto and the Robarts Library. They have provided exceptional research
assistance. I also thank all my cohorts in the SJD program, all the past and present students with
whom I have shared discussions, stories and experiences, all the professors I have engaged with
and all the staff at the Faculty who have shaped and influenced my stay at the Faculty.
I would like to thank my family here in Toronto, my parents, Primitivo and Corazon, my sister
and her family, Maricor, Ronald and Paolo and my brother and his family in the U.S., Lenin,
Myla and Yelena. All of them have always been supportive and encouraging throughout this
long and at times, difficult journey. I would also like to thank our family back in the Philippines,
Alfonso, Araceli, Alain, Angela, Allian and Amia who have been patiently praying and
supporting me. They have all been a constant source of inspiration.
Finally, I dedicate this dissertation to the four people who have grounded me throughout this
journey and who have given meaning to what I do everyday. I dedicate this work to my wife and
partner in life, Aleli, who has stood by me in this journey of wins, losses and breakevens;
endured all my fits and madness; prayed, cried and laughed with me; celebrated with me for
every draft submission; shared in my joy for every approved draft; encouraged me in the midst
of despair with every ripped or rejected draft or when I doubted if I could ever finish; and with
whom I have felt and experienced unconditional love. I also dedicate this work to our three
beautiful children, Moira, Sandrina and Isabella who have made me so much more hopeful. All
of you are reason enough why life is a blessing and for me to be thankful everyday of my life.

TABLE OF CONTENTS
INTRODUCTION.....1
I. INTRODUCTION.1
II. THE DISCOURSE OF CHILDREN, CHILDHOOD AND PARTICIPATION11
A. THE DOMINANT DISCOURSE OF CHILDREN AND CHILDHOOD...11
1. THE DEVELOPING CHILD: CHILDHOOD AS NATURE.....14
2. THE SOCIAL CHILD: CHILDHOOD AS NURTURE....16
B. THE EMERGING PARADIGM OF CHILDREN AND CHILDHOOD.17
1. CHILDHOOD STUDIES.18
2. CHILD RIGHTS AND THE UNITED NATIONS CONVENTION
ON THE RIGHTS OF THE CHILD ........20
C. ARTICULATING THE PARTICIPATION OF CHILDREN...22
1. PARTICIPATION AS A RECOGNITION OF CHILDREN AS RIGHTS-BEARERS.....25
2. PARTICIPATION AS AN ACKNOWLEDGMENT OF CHILDRENS REALITIES.....29
3. PARTICIPATION AS RESPECT FOR THE RELATIONSHIPS OF CHILDREN..29
III. THE FRAMEWORK APPLIED: FOUR CONTEXTUAL STUDIES..34
CHAPTER I: THE CHILD, THE FAMILY AND THE LAW.36
I. THE DOMINANT PARADIGM40
II. THE EMERGING PARADIGM...43
III. THE DOMINANT PARADIGM AND THE PHILIPPINE FAMILY:
THE RHETORIC OF PARENTAL AUTHORITY...46
IV. A RE-IMAGINING OF THE PHILIPPINE FAMILY AS THE BASIS
OF THE EMERGING PARADIGM: THE PARTICIPATION OF CHILDREN IN
THE FAMILIAL NETWORK OF RELATIONSHIPS...55
V. RE-INTERPRETING LEGAL NORMS TO REFLECT THE RELATIONAL NATURE
OF THE FAMILY: RECOGNIZING THE ENGAGEMENTS
OF THE CHILD AS PARTICIPATION..62
A. SUPPORT...67
B. GUARDIANSHIP.69
C. FAMILY HOME..70
D. FAMILY AFFAIRS, CHILD-REARING AND DISCIPLINE.....71
E. PARENTAL CONSENT AND ADVICE75
VI. CONCLUDING REFLECTIONS: PROSPECTS FOR THE PARTICIPATION OF CHILDREN
WITHIN THE PHILIPPINE FAMILY..77
CHAPTER II: THE CHILD, EDUCATION AND THE LAW80
I. THE ABSENCE OF CHILDREN IN EDUCATION: DOMINANT REPRESENTATION...88
II. ACKNOWLEDGING CHILDREN IN EDUCATION: EMERGING PARADIGM...90
III. THE LEGAL CONTEXT OF THE PHILIPPINE EDUCATIONAL SYSTEM: A DICHOTOMY
OF FRAMEWORKS..92
A. THE DOMINANT LEGAL FRAMEWORK IN THE PHILIPPINE EDUCATIONAL SYSTEM:
A UNIVERSAL PRESCRIPTION FOR THE DEVELOPMENT OF FUTURE CITIZENS...93
B. THE EMERGING PARADIGM IN THE PHILIPPINE EDUCATIONAL SYSTEM:
AN ACKNOWLEDGMENT OF THE ROLE AND RIGHTS
OF STUDENTS IN EDUCATION....99
IV. STATE RESPONSE TO THE ENGAGEMENTS OF CHILDREN IN EDUCATION:
TWO STEPS FORWARD, ONE STEP BACK.105
A. JUDICIAL RESPONSE TO CLAIMS FOR THE EXERCISE OF STUDENTS RIGHTS:
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A NARRATIVE OF EXCLUSION AND RECOGNITION..................106


1. REJECTING STUDENTS RIGHTS WITHIN EDUCATION:
AN ATTITUDE OF EXCLUSION..107
2. UPHOLDING STUDENTS FUNDAMENTAL RIGHTS AND FREEDOMS:
INDICATIONS OF RECOGNITION...112
3. MAKING SENSE OF THE JUDICIAL RESPONSE TO STUDENTS CLAIMS OF RIGHTS:
RESTRAINED VICTORY....119
B. POLICY RESPONSE TO THE ENGAGEMENTS OF STUDENTS:
THE RHETORIC OF PARTICIPATION VS. THE REALITY OF EXCLUSION.121
1. THE CURRICULAR REFORM OF 2002: THE INVOLVEMENT OF THE
CHILD-LEARNER OR A CURE FOR STUDENTS?..............................................121
2. THE CURRENT REFORM TO BASIC EDUCATION:
AN INCLUSIVE SYSTEM OR AN IMPOSING SCHEME?.........................................126
3. EDUCATIONAL POLICY REFORMS AND THE PARTICIPATION OF CHILDREN:
MUTED VICTORY....131
V. CONCLUDING REFLECTIONS: MOVING FORWARD...132
CHAPTER III. THE CHILD, LABOR AND THE LAW.......137
I. THE COMPETING PARADIGMS OF CHILDREN AND WORK..142
A. THE DOMINANT PARADIGM....142
B. EMERGING PARADIGM....148
II. A HISTORICAL ANALYSIS OF THE LEGAL FRAMEWORK OF
CHILD WORK IN THE PHILIPPINES....151
A. THE FIRST CHILD LABOR LAW OF 1923:
INDUSTRY-SPECIFIC CHILD WORK REGULATION....152
B. THE 1952 LAW: TRANSITION FROM REGULATION TO PROHIBITION....155
C. THE 1971 AND 1973 AMENDMENTS: MORE DEFINITIVE MINIMUM
AGE LEGISLATION WITH A CLEARER PROHIBITION AGAINST CHILD WORK...159
D. THE 1974 PHILIPPINE LABOR CODE AND CHILD AND YOUTH WELFARE CODE:
CHILD WORK AS AN ISSUE OF BOTH LABOR REGULATION
AND CHILD PROTECTION.161
E. THE 1992 ANTI-CHILD ABUSE LAW: HINTS OF A NEW DIRECTION
IN CHILD LABOR LEGISLATION...162
F. THE 1993 AMENDMENT TO THE ANTI-CHILD ABUSE LAW:
A QUICK RESPONSE UNDERSCORING THE POLICY AGAINST CHILD WORK.165
G. THE 2003 LAW ON THE ELIMINATION OF THE WORST FORMS OF CHILD LABOR:
PRIORITIZATION OR REDUNDANCY..166
III. CHILD WORK LAWS AND POLICIES:
A DOMINANT CONSTRUCTION OF CHILDREN AND CHILDHOOD...170
A. AGE IS A DEFINITIONAL MARKER...172
B. ALL CHILD WORK IS CHILD LABOR....174
C. PERMISSIBLE CHILD WORK IS NOT WORK..175
1. WORK UNDER THE SOLE RESPONSIBILITY OF THE PARENTS..176
2. LIGHT WORK....179
3. PRIVILEGED WORK...180
D. ADULTS KNOW BEST..182
IV. REFORMULATING CHILD WORK LEGISLATION:
CHILDREN AND PARTICIPATION......183
A. AN EQUALLY REAL CHILDHOOD.....184
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B. A CAPABLE AND PERCEPTIVE CHILD..185


C. A BROADER UNDERSTANDING OF HARM188
D. A REALITY OF WORK AND SCHOOL190
V. CONCLUDING REFLECTIONS....193
CHAPTER IV. THE CHILD, YOUTH JUSTICE AND THE LAW.....196
I. DOMINANT MODELS OF YOUTH JUSTICE POLICY:
REFLECTING THE DOMINANT CONSTRUCTIONS OF CHILDREN AND CHILDHOOD..205
A. WELFARE AND THE ETHIC OF CARE: SAVING THE INNOCENT CHILD......205
B. JUSTICE AND RESPONSIBILIZATION: CONTROLLING THE DANGEROUS CHILD.208
1. RESPONSIBILITY AND THE IMPOSITION OF PUNISHMENT..208
2. RESPONSIBILITY AND A DETERMINATE SYSTEM OF JUSTICE.....211
II. EMERGING PARADIGM: LOCATING THE CHILD WITHIN YOUTH JUSTICE POLICY.212
III. THE YOUTH JUSTICE SYSTEM IN THE PHILIPPINES:
WELFARE AND JUSTICE IN RHETORIC AND REALITY...217
A. FIRST ARTICULATION OF A YOUTH JUSTICE POLICY:
ORIGINS OF WELFARISM.....................................................................................219
B. SUSPENSION OF JUDGMENT AND ALTERNATIVE FORMS OF COMMITMENT:
INFLUENCES OF THE CHILD-SAVING MOVEMENT221
C. OVER 40 YEARS OF CARE, CORRECTION AND EDUCATION:
CONTINUING THE WELFARE TRADITION.....225
D. YOUTH JUSTICE POLICY IN CHILD WELFARE LAW:
WELFARE AND ITS INTRUSIVE REACH.227
E. BLURRING THE LINES BETWEEN WELFARE AND JUSTICE:
SEEDS OF THE EMERGING PARADIGM.....235
F. WELFARE AND JUSTICE IN RHETORIC AND PRACTICE:
REFORMULATING THE YOUTH JUSTICE SYSTEM..242
G. DEBATES ON THE CURRENT LAW
WELFARE VS. JUSTICE AGAIN......250
IV. THE JUVENILE JUSTICE AND WELFARE ACT OF 2006 AND THE EMERGING PARADIGM:
A FRAMEWORK OF PARTICIPATION.254
A. LIMITATIONS OF THE DISCOURSE ON WELFARE/JUSTICE DIVIDE....254
B. RE-FRAMING THE DISCOURSE OF YOUTH JUSTICE POLICY..257
V. THE WAY FORWARD: GUARDED OPTIMISM....267
CONCLUSION......270
I. THE DOMINANT DISCOURSE AND ITS PROFOUND INFLUENCE...272
II. EXPRESSIONS OF THE EMERGING PARADIGM AND ITS TENUOUS FOOTHOLD...275
III. A CONTEXTUALIZED UNDERSTANDING OF THE EMERGING PARADIGM
AND CHILDRENS PARTICIPATION..280
IV. MOVING FORWARD...286
BIBLIOGRAPHY.....289

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1
INTRODUCTION
I pondered deeply, then, over the adventures of
the jungle. And after some work with a colored
pencil I succeeded in making my first drawing.
My Drawing Number One.I showed my
masterpiece to the grown-ups, and asked them
whether the drawing frightened them. But they
answered: Frighten? Why should any one be
frightened by a hat? My drawing was not a
picture of a hat. It was a picture of a boa
constrictor digesting an elephant. But since
grown-ups were not able to understand it, I
made another drawing: I drew the inside of the
boa constrictor, so that the grown-ups could see
it clearly. They always need to have things
explained.The grown-ups response, this time,
was to advise me to lay aside my drawings of
boa constrictors, whether from the inside or the
outside, and devote myself instead to geography,
history, arithmetic and grammar.Grown-ups
never understand anything by themselves, and it
is tiresome for children to be always and forever
explaining things to them.1
It is clear that listening to children, hearing
children, and acting on what children say are
three very different activities, although they are
frequently elided as if they were not. The
(re)discovery of children in the academy is akin
in some respects to the rediscovery of poverty, of
women, or of the working class in the 1960s and
1970s. Children have always been with us. There
have always been people who have listened,
sometimes there have been people who have
heard, and perhaps less often, those who have
acted wisely on what children have had to say
(citations omitted).2
I. INTRODUCTION
The statement that children have been (re)discovered although they have always been with
1

Antoine de Saint Exupry, The Little Prince, translated by Katherine Woods (New York: Harcourt, Brace &
World, Inc., 1943) at 3-4.
2
Helen Roberts, Listening to Children: and Hearing Them in Pia Christensen and Allison James, eds, Research
with Children: Perspectives and Practices (London: Falmer Press, 2000) at 238.

2
us is indicative of the absence of children in the discourse of children and childhood. This is
not to say that there has been a lack of interest in children. Rather, in matters relating to
children, the voices of children themselves have been shut out.3 The rediscovery of children
referred to in the opening passage represents the movement over the last three decades towards a
greater recognition of childrens participation in matters that affect them. Graham and Fitzgerald
write that a substantial body of research has focused on the importance of affording children
the rightful and legitimate claim to have a say and for adults to listen to the voices of
children in relation to the decisions and activities that influence their lives.4 This process of
participation where childrens own interests and perspectives5 are taken into account is, in
fact, now well documented both theoretically and empirically.6 Article 12 of the United Nations
Convention on the Rights of the Child (UNCRC) provides:
States Parties shall assure to the child who is capable of forming his or her own
views the right to express those views freely in all matters affecting the child, the
views of the child being given due weight in accordance with the age and maturity
of the child.7
Although participation does not appear in the text of the UNCRC, the Committee on the
Rights of the Child notes that this term has evolved and is now widely used to describe
ongoing processes, which include information-sharing and dialogue between children and adults
based on mutual respect, and in which children can learn how their views and those of adults are
taken into account and shape the outcome of such processes.8 However, despite these
developments, childrens participation is increasingly described as ambiguous, uncertain and

See e.g. Hilary Lim and Jeremy Roche, Feminism and Childrens Rights: The Politics of Voice in Deirdre
Fottrell, ed, 10 Years of the UN Convention on the Rights of the Child (The Hague, The Netherlands: Kluwer Law
International, 2000).
4
Anne Graham and Robyn Fitzgerald, Progressing Childrens Participation: Exploring the Potential of a
Dialogical Turn (2010) 17:3 Childhood 343 at 344.
5
Allison James and Adrian James, Constructing Childhood: Theory, Policy and Social Practice (Houndmills,
Basingstoke, Hampshire: Palgrave Macmillan, 2004) at 23.
6
See The United Nations Childrens Fund, The State of the Worlds Children 2003 (New York: UNICEF, 2002);
Christine Hallett and Alan Prout, eds, Hearing the Voices of Children: Social Policy for a New Century (London:
RoutledgeFalmer, 2003); E. Kay Tisdall et al, eds, Children, Young People and Social Inclusion: Participation for
What? (Bristol, UK: Policy Press, 2006). See also the Special Issue of the International Journal of Childrens Rights
on Theorising Childrens Participation: International and Interdisciplinary Perspectives (2008) 16:3 Intl J Child
Rts.
7
Convention on the Rights of the Child, 1577 UNTS 3 (entered into force 2 September 1990) [UNCRC], art. 12.
8
United Nations Committee on the Rights of the Child, General Comment No. 12 (2009) The Right of the Child to
be Heard, CRC/C/GC/12, 51st Sess (2009) at 5, par. 3.

3
contested.9 Sinclair encapsulates the difficulty: [T]here is still much uncertainty about how to
involve children, especially how to do so in a way that is effective and brings about change
particularly change that is lasting.10 The challenge is understandable considering that an
exploration of the participation of children is as much about looking at ourselves as a society as
it is about focusing on children. Recognizing the participation of children really compels us to
examine how we see children and their place in society.11 Graham and Fitzgerald view this
examination as a process in which adults plac[e] our own experience at risk12 by
acknowledg[ing] our prejudices and pre-understandings, many of which are hidden from view
or so deeply embedded in our assumptions and behaviours that we may not readily recognize
them.13 This means that to understand childrens participation is to confront the discourse of
children and childhood where we uncover underlying assumptions, interests and agendas that
inform our conceptions of who the child is and what the experience of childhood entails.14
Moss, Dillon and Statham characterize the undertaking in terms of value and ethics, with the
appropriate question being: [W]ho do we think children are?15
In its exploration of childrens participation, this thesis confronts the very question of who do
we think children are? by looking at how the Philippine legal system engages (or disengages)
children16 and asking what that engagement (or disengagement) means for both children and
adults. In particular, the thesis examines the Philippine legal frameworks that deal with the
status, conditions and circumstances of children in the family, the educational system, the work
environment and the youth justice system. This examination reveals not only how the legal

Graham and Fitzgerald, supra note 4 at 343.


Ruth Sinclair, Participation in Practice: Making it Meaningful, Effective and Sustainable (2004) 18 Children
and Society 106 at 106.
11
See e.g. Richard Dyer, The Matter of Images: Essays on Representations (London: Routledge, 2002) who argues
that how we treat others is based on how we see them.
12
Graham and Fitzgerald, supra note 4 at 354.
13
Ibid.
14
The significance of this statement is enhanced by the recognition that children are one of the most governed
groups by both the state and civic society. Malcolm Hill et al, Moving the Participation Agenda Forward (2004)
18 Children and Society 77 at 77.
15
Peter Moss, Jean Dillon and June Statham, The Child in Need and the Rich Child: Discourses, Constructions
and Practice (2000) 20:2 Critical Social Policy 233 at 251.
16
Throughout this thesis, the term child or children is used within the definition of the current Philippine legal
context unless otherwise indicated. By virtue of Republic Act No. 6809 (1989) An Act Lowering the Age of
Majority from Twenty-One to Eighteen Years Amending for the Purpose Exec. Order No. 209, and for Other
Purposes, the age of majority is currently set at 18 years. This conforms to the UNCRC, supra note 7, art. 1 which
defines a child as every human being below the age of eighteen years unless under the law applicable to the child,
majority is attained earlier.
10

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system constructs children and childhood but also how such constructions shape the
participation of children as reflected in the opportunities and constraints accorded and/or denied
them by laws and policies especially in those contexts where they live and experience their
realities. Ultimately, these legal constructions of the child and childhood impact the
material experiences of Filipino children. As Cotterrell reminds us: Law [has the] power to
shape the meaning of social relationships and social institutions and indeed, to define personal
identity. Lawshapes expectations, responsibilities and constraints attaching to social
statuses.17
The position of children in the Philippines is quite distinctive. The Philippines is said to be a
child-oriented society. The countrys fascination with children is clearly borne out by the oftrepeated aphorism of its national hero, Jose Rizal, who refers to Philippine youth as the fair
hope of my fatherland.18 Children are a central part of the fabric of the Filipino culture:
Filipinos have many children, they watch them carefully, they love to talk about them[and]
in many senses [the Philippines] is a society which takes great pride in its children.19 Who
would not take pride in their children in a country of more than 92 million20 in which almost
40%21 of its population are children? In this context, it becomes critical then to examine how
this focus on children is translated into laws and policies and what this means both for
children in their claim to have a say and for adults in listening to these voices of children.

17

Roger Cotterrell, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (England: Ashgate
Publishing Limited, 2006) at 99.
18
In his immortalized poem A La Juventud Filipina (To the Philippine Youth) written in 1879, Dr. Jose Rizal
wrote: Alza su tersa frente, Juventud Filipina, en este da! Luce resplandeciente tu rica gallarda, Bella esperanza
de la Patria Ma! (Hold high the brow serene, O youth, where now you stand; Let the bright sheen of your grace be
seen, Fair hope of my fatherland!)
19
George Guthrie and Pepita Jacobs, Child Rearing and Personality Development in the Philippines (University
Park: Pennsylvania State University Press, 1966) at 1.
20
Based on the 2010 Census of Population and Housing (CPH) undertaken by the National Statistics Office, the
total population of the Philippines as of May 1, 2010 is 92,337,852. National Statistics Office, 2010 Census and
Housing
Population,
online:
National
Statistics
Office,
Republic
of
the
Philippines
<http://www.census.gov.ph/sites/default/files/attachments/hsd/pressrelease/Population%20and%20Annual%20Gro
wth%20Rates%20for%20The%20Philippines%20and%20Its%20Regions%2C%20Provinces%2C%20and%20High
ly%20Urbanized%20Cities%20Based%20on%201990%2C%202000%2C%20and%202010%20Censuses.pdf>.
21
The National Statistics Office of the Philippines reports that as of May 1, 2010, there are almost 37 million
persons in the 0-17 age bracket of the total household population. National Statistics Office, The Age and Sex
Structure of the Philippine Population: (Facts from the 2010 Census ), online: National Statistics Office, Republic
of the Philippines <http://www.census.gov.ph/content/age-and-sex-structure-philippine-population-facts-2010census>.

5
In examining the Philippine legal system, the thesis reveals a complex legal framework shaped
by competing paradigms of children and childhood that both give meaning to and respond to the
engagements of children. Contributing to the complexity is an intricate interplay between the
countrys colonial past and its indigenous traditions. On the one hand, the thesis explores a
dominant discourse of children and childhood based on universal patterns of development and
socialization. This dominant discourse is driven by homogenized, deterministic and romantic
notions of childhood that see it as a stage of innocence and dependency progressing towards
an idealized end. As such, children are viewed as the objects of adult control and influence. The
thesis looks at how this dominant discourse serves to universalize a particular conception of the
child and an authentic childhood that effectively shuts out the voices of children by
[creating] a sense of what is expected of young people and what is in effect natural for them.22
Thus, reliance on a dominant discourse offers, at best, a restrictive image of the child that fails
to articulate whether deliberately or otherwise the diversity in the lives and experiences of
children. McDonald asserts that [p]olicy has the capacity to speak to a child that may not exist.
Or, and perhaps more likely, we may speak to a child which is an artefact of the people
engaged in making and implementing policy.23 The danger of an ascribed representation that is
restrictive, partial or worse, misleading, is that it dismisses the engagements of children and
denies them the opportunity for participation by imprisoning children within a false, distorted,
and reduced mode of being.24
The thesis demonstrates the heavy influence of this dominant discourse of children and
childhood on Philippine laws and policies built around notions of innocence, dependence,
incompetence and vulnerability. A major part of this influence implicates Western
understandings of children and childhood brought about by more than 400 years of colonial rule
in the country. Within this tradition, a particular identity and status is ascribed to children
either children in danger25 or children as dangerous26 resulting in the adoption of forms of

22

Roger Smith, Doing Justice to Young People: Youth Crime and Social Justice (Oxon: Willan Publishing, 2011) at
16.
23
Catherine McDonald, The Importance of Identity in Policy: The Case For and Of Children (2009) 23:4
Children and Society 241 at 249.
24
Graham and Fitzgerald, supra note 4 at 349.
25
Alan Prout, Participation, Policy and the Changing Conditions of Childhood in Christine Hallett and Alan
Prout, eds, Hearing the Voices of Children: Social Policy for a New Century (London: RoutledgeFalmer, 2003) at
12.
26
Ibid.

6
action embodied in the rhetoric of rescue and/or control where the role of the child is obscured
and minimized. Children in this dominant discourse are defined for who (the child) and what
(childhood) they represent, consequently limiting, if not completely denying, opportunities for
their participation. Such a denial of participation is even more pronounced in the legal treatment
of children whose childhoods are different, for example children at risk including failing
school children, child workers, street children and young offenders, pushing them into even
further marginality.
Against this totalizing dominant discourse, the thesis traces the development of an emerging
paradigm of children and childhood that espouses a broader understanding of what it means to
be a child and of the experience of childhood. The thesis locates this emerging paradigm within
two influences: 1) childhood studies which brings with it contextualized understandings of the
different experiences of childhood; and 2) the child rights movement that recognizes children as
rights bearers most notably enshrined in the UNCRC. In contrast to the dominant paradigm, this
emerging paradigm both acknowledges the diversity of childrens lives and recognizes the
active role of children in defining and structuring the different contexts where they live their
realities. As Prout and James capture: Childhood, as distinct from biological immaturity, is
neither a natural nor universal feature of human groups but appears as a specific structural and
cultural component of many societies.27 Boyden et al further explain:
But childhood embraces a remarkably heterogeneous set of experiences, supported
by a broad range of developmental goals. There are many different kinds of
childhood in the world today; children in different places face very different
challenges, and are raised in very different ways and with very different expectations
and outcomes. Different societies have their own ideas about childrens capacities
and vulnerabilities, the ways in which they learn and develop and what is good for
them and what is bad.Ultimately, childrens well-being and development are
influenced more than anything by their own competencies and by the opportunities
and constraints, social, cultural, and economic, associated with the particular context
they live in.28
The emerging paradigm challenges monolithic and universalistic conceptions of children and
childhood. As well, it repositions children by recognizing their active role in the construction of
27

Alan Prout and Allison James, A New Paradigm for the Sociology of Childhood? Provenance, Promise and
Problems in Allison James and Alan Prout, eds., Constructing and Reconstructing Childhood: Contemporary
Issues in the Sociological Study of Childhood, 2d ed (London: The Falmer Press, 1997) at 8.
28
Jo Boyden et al, What Works for Working Children (Sweden: Save the Children Sweden, 1998) at 32.

7
their own lives, the lives of those around them and of the societies in which they live.29 Within
this reconstruction of the discourse of children and childhood, childrens participation finds
meaning and significance: children not only have the rightful and legitimate claim to participate
but in fact, have the capacity to do so. It thus follows that the participation of children is firmly
anchored in the emerging paradigm, reflecting the main premise of this thesis, i.e.,
understanding childrens participation requires engagement with the discourse of children and
childhood.
But it should be clear that participation does not obscure the very real differences that exist
between children of substantially different ages.30 As Neale writes: The social experience,
understanding and social contributions of a baby or a pre-school-age child, for example, are
likely to be markedly different from those of a young person of secondary-school age or over.31
At the same time, children of the same age from different communities will also have varying
experiences of childhood. As such, childhood is not uniformly linked to biological age. Neither
does it occur in a social vacuum. To this end, the emerging paradigm brought about by
childhood studies and the child rights movement, relies upon the concept of the evolving
capacities of the child32 and a contextualized understanding of childhood. The Committee on the
Rights of the Child notes: Research has shown that information, experience, environment,
social and cultural expectations, and levels of support all contribute to the development of a
childs capacities to form a view.33 Consequently, the emerging paradigm allows for a
progressive understanding of childhood where the challenge is, according to Neale, recognising
the strengths and competencies of the youngest members of society and finding ways to nurture
these qualities so that young children can flourish.34
In applying this emerging paradigm to the context of the Philippines, the thesis demonstrates
that the Philippine legal system has indeed shown some concrete attraction to the emerging

29

Prout and James, supra note 27.


Bren Neale, Introduction: Young Childrens Citizenship in Bren Neale, ed, Young Childrens Citizenship:
Ideas Into Practice (York, UK: Joseph Rowntree Foundation, 2004) at 10.
31
Ibid.
32
Geraldine Van Bueren, The International Law on the Rights of the Child (The Hague: Martinus Nijhoff
Publishers, 1998) posits that the evolving capacities of the child, in fact, is one of the new principles of
interpretation underpinning the UNCRC.
33
United Nations Committee on the Rights of the Child, supra note 8 at 11, par. 29.
34
Neale, supra note 30 at 14.
30

8
paradigm opening opportunities for the participation of children. In the Philippines it has been
boldly stated, for example, that the participation of children is valued as a normative
principle.35 It has even been asserted in policy frameworks that by the year 2025, every child in
the Philippines shall be assertive of her (his) rights as well as those of others and actively
participating in decision-making and governance, in harmony and in solidarity with others, in
sustaining the Filipino nation.36 However, the thesis also shows that this attraction to the
emerging paradigm is uncertain, tenuous and contested, and that dominant discourses often tend
to prevail in the end. As such, opportunities for and actual recognition of childrens participation
within the legal system have remained limited and exceptional.
In advocating for broader acceptance of the emerging paradigm, the thesis identifies distinctive
understandings of the emerging paradigm in the Philippine context. A central argument of the
thesis is that in reconstructing the discourse of children and childhood, the emerging paradigm
does not necessarily introduce new understandings of children and childhood in the
Philippines but, in fact, confirms existing beliefs and practices. The emerging paradigm can be
understood as an expression of deeply held indigenous relational values reflecting an
interdependent understanding of children and childhood where mutually reciprocal connections
between children, adults and their communities are highly valued. Thus the participation of
children draws upon an understanding of the child being part of reciprocal and interdependent
responsibilities. Within this contextualized understanding of the emerging paradigm, the
recognition of childrens participation embodies three important concepts: rights, realities and
relationships. Participation involves the recognition of children as rights-bearers; the
acknowledgment of childrens realities as lived and experienced by them; and respect for the
meaningful and constitutive relationships that children establish.
The conceptualization of childrens participation in terms of rights, realities and relationships
distinguishes it from individual choice or autonomy as understood within the liberal tradition.37
35

Sharon Bessell, Adult Attitudes Towards Childrens Participation in the Philippines, online: (2007) Crawford
School of Economics and Government The Australian National University <http://www.crawford.anu.edu.au> at 1.
36
The Philippine National Strategic Framework for Plan Development for Children or CHILD 21 [Child 21
Framework] adopted by the Philippine government in 2000 led by the Council for the Welfare of Children.
37
There is an extensive discourse on the definitions of autonomy which this thesis can do no more than recognize.
For the purposes of this thesis, I have found useful Nedelskys definition of autonomy within the context of
relationships. Jennifer Nedelsky, Laws Relations: A Relational Theory of Self, Autonomy and Law (New York:
Oxford University Press, 2011).

9
Such a conceptualization also responds to fears that the participation of children is disruptive of
adult-child relations because it rests upon the idea that children have the freedom to decide for
themselves in matters affecting them and can and should accept responsibility for their own
actions. This autonomous and individualistic understanding of the participation of children was
influenced by a strong child liberation movement in the West that started in the 1970s. The socalled child liberationists removed distinctions between children and adults. Farson, for
example, has argued that the liberation of children could be realized through their right to selfdetermination that includes granting them personal, social and political rights.38 Similarly, Holt
has argued for the right of children to do, in general, what any adult may legally do39
including the right to vote, the right to financial independence and the right to be legally
responsible for ones life.
In advancing its conceptualization of childrens participation, this thesis insists on the
recognition and respect of children as children.40 In fact, it recognizes differences between
adults and children. What is crucial, however, is how those differences are understood.41 Under
the dominant discourse, the difference between children and adults is understood in terms of
childhood being incomplete, deficient and a less preferred state. On the other hand, the
emerging paradigm, within which childrens participation is situated, appreciates the value of
38

Richard Farson, Birthrights: A Bill of Rights for Children (New York: Macmillan Publishing Co., Inc., 1974).
See Michael Wald, Childrens Rights: A Framework for Analysis (1979) 12 UC Davis L Rev 255 at 257 who in
looking at the dichotomous debates on childrens rights, explains this self-determination: Childrens rights can
only be realized when all children have total freedom to decide for themselves what is best for them, including the
right to sexual freedom, financial independence and the right to choose where they shall live. Therefore Farson
argues for the elimination of both state and parental control of children.
39
John Holt, Escape from Childhood (New York: E.P. Dutton & Co., Inc., 1974) at 19.
40
See e.g. Eugeen Verhellen, Children and Participation Rights in Pia-Liisa Heilio, Erja Lauronen and Marjatta
Bardy, eds, Politics of Childhood and Children at Risk: Provision Protection Participation (Vienna: European
Centre for Social Welfare Policy and Research, 1993) at 58 who argues that the idea of childrens rights is not to
treat children and adults in the same way, but to guarantee children that they can be themselves. Similarly, James
and James, supra note 5 at 188 espouse a social space where children can experiment, can test out their
ideasand can be children.
41
See e.g. Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (New York: Cornell
University Press, 1990) at 376-377 who argues that we must think seriously about difference otherwise its
meanings will operate without examination or justification. She writes: The perspective of those who are labeled
different may offer an important challenge to those who imposed the label, but it is a correlative lens, another
partial view, not the absolute truth. It is the complexity of our reciprocal realities and the conflict between our
realities that constitute us which we need to understand. Shifting perspectives exposes how a difference depends
on a relationship, a comparison drawn between people with reference to a norm. And making this reference point
explicit opens up the debate. Maybe the reference point itself should change.Changing the ways we classify,
evaluate, reward and punish may make the differences we had noticed less significant, irrelevant or even a strength.
The way things are is not the only way things could be. By aligning ourselves with the different person, for
example, we could make difference mean something new; we could make all the difference.

10
childhood and highlights the interdependency between children and adults. As Knutsson
explains:
Childhood is continuously interacting with other components in the total web of
human reality. Through this interaction, children are in their own specific way not
only crucial for the production, reproduction and sustainability of human life, but
are in a very real sense also co-builders of the social and cultural structures which
make up our communities and societies.42
The remainder of this introductory chapter (Part II) provides a fuller presentation of the concepts
and understandings that structure this thesis in its exploration of the discourse of children,
childhood and participation.
The first section begins by presenting the dominant discourse of children and childhood. It looks
at the foundations of this perspective and how it has deeply influenced understandings of
children and childhood. As this dominant approach sees childhood as a universal biologically
determined condition, its use of the construct of the child embodies an entire category of
people children. Inevitably, the child represents the real child living an authentic
childhood. In this manner, actions towards children are based on a totalizing portrayal of the
child living what is considered a normal childhood. This shuts out the voices of children and
denies opportunities for and actual recognition of childrens participation.
The second section then traces the development of an emerging paradigm that moves towards a
broader understanding of children and childhood. In contrast to the dominant paradigm, this
view acknowledges the diversity of childrens childhoods as shaped by the particularities of the
real, lived experiences of children. Such acknowledgement, in turn, supports the notion that
children are not simply passive objects, the product of universal biological and social
processes, but are active participants in their own social worlds and in those of adults.43 The
thesis locates this emerging paradigm within two influences: 1) childhood studies which brings
with it understandings of a more particularistic and contextually-sensitive account of what it
means to be a child of a particular culture and society at a specific point in history; and 2) the

42

Karl Eric Knutsson, Children: Noble Causes or Worthy Citizens (England: Ashgate Publishing Limited, 1997) at
42.
43
James and James, supra note 5 at 24.

11
child rights movement that recognizes children as rights bearers most notably enshrined in the
UNCRC. In its simplest form, these two forces inform this thesis by advancing an emerging
paradigm that not only recognizes and respects the diversity of childrens lives where each
childhood experience is equally authentic, but also values children for who they are and what
they bring to the definition and structuring of the different contexts where they live their
realities. Ultimately, this emerging paradigm involves, as Neale believes, redefining the place
of children within the world and thus making a real difference to all our lives.44
The final section of this introductory chapter then proceeds to examine in detail the concept of
childrens participation and how it is articulated within a contextualized understanding of the
emerging paradigm. As the emerging paradigm advanced in this thesis is understood within the
context of deeply held indigenous relational values of the Philippines, the participation of
children draws on ideas of the child sharing in reciprocal and interdependent responsibilities.
The section expounds on this participation of children as an embodiment of three important
concepts that underlie a contextualized understanding of the emerging paradigm: recognition of
children as rights-bearers; acknowledgment of childrens realities as lived and experienced by
them; and respect for the meaningful and constitutive relationships that children establish.
II. THE DISCOURSE OF CHILDREN, CHILDHOOD AND PARTICIPATION
A. THE DOMINANT DISCOURSE OF CHILDREN AND CHILDHOOD
When dealing with children especially children who do not obey their adult carers adults
typically assert that it is futile to engage the child because children simply do not understand
the whys of a situation.45 Adults simply declare that a child is too young to understand. On the
surface, this statement reflects some sense of frustration on the part of adults, especially when
children do not obey them. However, on another level, it is reflective of what most adults
perceive as the proper place of the child in a rational grown-up world. Innocuous as it may
seem, the statement a child is too young to understand carries with it many implications that
expose the deep influence of a dominant discourse of children and childhood.
44

Bren Neale, Conclusion: Ideas Into Practice in Bren Neale, ed, Young Childrens Citizenship: Ideas Into
Practice (York, UK: Joseph Rowntree Foundation, 2004) at 172.
45
See e.g. Elizabeth Scott and Laurence Steinberg, Blaming Youth (2003) 81 Tex L Rev 799.

12

First, the assertion is based on a definitional marker age. Age has become a key determinant
of what children can or cannot do or more precisely what children are allowed or not allowed
to do. As well, age is the indicator of whether a child is achieving what other children of the
same age should be accomplishing. This has facilitated the task of labeling as normal those
who conform to this set normative concept and as deviants (or failures) those who fall below the
competence mark.
Second, the statement suggests universalized notions of what children and childhood are. Owing
largely to assumptions about fixed stages of childrens development, it is assumed that every
child fits neatly into the overall structure of childhood. Children everywhere go through the
same predictable experiences and we have established responses to their actions.
Third, children, unlike adults, do not have the competence to enable them to make rational
decisions. Childhood is defined and described as a period of dependence conflated with an idea
of innocence.46 Children eventually develop into mature and reasonable adults but for the time
being, they are simply non-adults.
Finally the statement validates an accepted fact that adults are empowered to act on childrens
behalf in order to protect the latter and their best interests.
These implications provide us with an image of how society views children and childhood.47
Children have been defined not based on their existing identities as manifested in their
capacities, experiences and realities but on who (the child) and what (childhood) they
represent. As well, children are simply viewed as non-adults creating the impression that the
difference between children and adults is couched in terms of children being somehow

46

Andy West, Power Relationships and Adult Resistance to Childrens Participation (2007) 17:1 Children, Youth
and Environments 123.
47
One of the leading authorities in the study of the history of childhood in the West, Philippe Aries, Centuries of
Childhood: A Social History of Family Life, translated by Robert Baldick (New York: Alfred A. Knopf, 1962) at
128 argues that in medieval society, the idea of childhood did not exist. There was a lack of awareness of any
distinction between the child and the adult. See however David Archard, Children: Rights and Childhood, 2d ed
(Milton Park: Routledge, 2004) at 22-23 who writes that [i]n fact what the past lacked was our concept of
childhood. Previous society did not fail to think of children as different from adults; it merely thought about the
difference in different ways from ours (italics in the original).

13
incomplete48 justifying a lower regard for their status. Such representations not only militate
against efforts to promote participation but in fact expose a child to even more vulnerabilities.49
Since the definition of the child has been shaped by so many stakeholders other than
children themselves it is unsurprising that there are a multitude of perspectives endeavoring to
influence and control the discourse of childhood. This has led James, Jenks and Prout to assert
that:
Childhoodis that status of personhood which is by definition often in the wrong
place. Though all people in any society are subject to geographical and spatial
prohibitions, whether delineated by discretion, private possession or political
embargo, the childs experience of such parameters isparticularly paradoxical,
often unprincipled, and certainly erratic.50
Children have been characterized either as innocents living a romanticized carefree and playfull life or brutes needing to be controlled and disciplined. Inherent in these sentimentalizing
and subordinating images is the treatment of children as blank slates who eventually develop
into mature and reasonable adults.51 As such, dealings with children operate within the
framework of rescue/protection and/or control/development.52
It is indisputable that children lack power in society.53 They suffer specific and often greater
harms not only as children but also because they are children.54 The United Nations Childrens
Fund (UNICEF) itself reports that children, apart from being excluded from receiving essential
services such as health care, education, food and shelter, also face exclusion from participation

48

McDonald, supra note 23 at 244.


Ibid at 243 argues that policies tend to propel particular, negatively characterised identities which culminate in
social exclusion, marginalisation and often impoverishment.
50
Allison James, Chris Jenks and Alan Prout, Theorizing Childhood (Cambridge: Polity Press, 1998) at 37.
51
See generally John Wall, Human Rights in Light of Childhood (2008) 16 Intl J Child Rts 523.
52
See e.g. Prout, supra note 25 who attributes the ambiguity of childhood to two different but problematic images
of childhood: children in danger and children as dangerous.
53
See e.g. Katherine Hunt Federle, Rights Flow Downhill (1994) 2 Intl J Child Rts 343 who argues that the
current rights talk is inadequate because it fails to remedy the powerlessness of children. She challenges rights
discourse that centers on capacity because it uses the language of the powerful elite and not of the powerless. See
also Michael Gallagher, Foucault Power and Participation (2008) 16 Intl J Child Rts 395, who uses a
Foucauldian analysis to look at the participation of children in relation to how adults exercise power.
54
Archard, supra note 47.
49

14
in society.55 This exclusion and invisibility of children is rooted in a construction of children as
not possessing the competence to enable them to make rational and mature decisions
regarding appropriate life choices.56 Since they are cast as weak and vulnerable members of our
society, it is not surprising that:
[Their] welfare[is] based not on asking them what they want or need, but on
what other people consider to be the case. It is a philosophy of exclusion and
control dressed up as protection, and dependent on the notion that those who are
protected must be so because they are deemed incapable of looking after
themselves.57
As Verhellen, who talks about this adult control through the concept of adulto-centricity,58
describes the process: adults keep using their power to make their definitions dominant by
oppressing the childs meaning-making capacities or at least by considering them as inferior.59
1. THE DEVELOPING CHILD
CHILDHOOD AS NATURE
Much of our understanding of children and childhood is influenced by developmental
psychology. This field of knowledge emerged in the context of the historical development of
positivism in the late nineteenth and early twentieth centuries when the social sciences [were]
attempting to emulate the scientific methods of the natural sciences in classifying, ordering,
theorizing and predicting the behavior of natural phenomena.60 Through this developmental
approach, childhood is seen as a stage characterized by an inherent lack of skills. This in turn
explains the need to control, protect and develop children. The goal then of childhood is to
progress to adulthood where one is considered a social, moral and legal being. Archard writes:

55

The United Nations Childrens Fund, The State of the Worlds Children 2006: Excluded and Invisible (New
York: UNICEF, 2005).
56
See e.g. Jeremy Roche, Childrens Rights: A Lawyers View in Mary John, ed, Children in Our Charge: The
Childs Right to Resources (London: Jessica Kingsley Publishers, 1996).
57
Ann Oakley, Women and Children First and Last: Parallels and Differences Between Childrens and Womens
Studies in Berry Mayall, ed, Childrens Childhoods: Observed and Experienced (London: The Falmer Press,
1994) at 16.
58
Verhellen, supra note 40 at 50.
59
Ibid.
60
Allison James and Adrian James, Key Concepts in Childhood Studies (London: Sage Publications, 2008) at 46.

15
if childhood is a stage, it is a stage on the way to adulthood. Adulthood is not a stage. It is the
culmination and goal of development, and thus what brings to an end the sequence of stages.61
One of the leading authorities in this developmental tradition is Jean Piaget. His work has
greatly influenced understandings of children, which in turn has shaped the discourses on
childhood. In his work, The Psychology of the Child, he asserts that the mental development of
the child appears as a succession of three great periods. Each of these extends the preceding
period, reconstructs it on a new level, and later surpasses it to an even greater degree.62 He
describes these successive periods or stages as: constant; characterized by an overall structure
of which the main behavior patterns can be explained; and integrative and noninterchangeable.63 The most striking feature of his model is the universality of its approach. His
subject child represents all children in that the individual subject is an exemplar, the typical
representative of the species.Thus the processes, including those of cognitive development are
the same in all single individuals, so that one need only study any exemplar and generalize.64
Piagets approach has become the basis of subsequent generations of scholars and researchers.
One can find his influences especially in the areas of child rearing and education. Focusing on
the context of education, Brown, Metz and Campione65 conclude that the primary influence of
the Piagetian theory has been to define constraints on what it is that children can reasonably be
expected to learn and understand.66
Equally important in Piagets work, and characteristic of the developmental model of childhood,
is the evolutionary nature of the process of development. Piaget made clear that each of his
stages results from the preceding one, integrating it as a subordinate structure, and prepares for
the subsequent one, into which it is sooner or later itself integrated.67 In the process of moving
towards childhoods goal, there may be accelerations or retardations but the sequence remains
constant. This has supported the practice of categorizing children whereby those who measure

61

Archard, supra note 47 at 44.


Jean Piaget and Barbel Inhelder, The Psychology of the Child (New York: Basic Books, Inc., 1969) at 152.
63
Ibid at 153.
64
Chris Jenks, Childhood, 2d ed (London: Routledge, 2005) at 23.
65
Ann Brown, Kathleen Metz and Joseph Campione, Social Interaction and Individual Understanding in a
Community of Learners: The Influence of Piaget and Vygotsky in Anastasia Tryphon and Jacques Voneche, eds,
Piaget-Vygotsky The Social Genesis of Thought (UK: Psychology Press, 1996).
66
Ibid at 148.
67
Piaget and Inhelder, supra note 62 at 153.
62

16
up to the standard are identified as normal; those who go through an acceleration are
commended as gifted; and those who experience retardations and fall below the competency
mark are labeled as deviants or failures.
An underlying certainty in this model of childhood is that development is solely biologically
determined. Archard describes this endogeneity as self-propelled in that it derives its motive
force from structures, functions and processes which are rooted within the childs nature.68
This understanding directs attention to the relationship between chronological age and various
types of physical and psychological traits. Piaget calls this biological fact of construction and
transition from one stage to the next as internal mechanism. He describes it rather graphically:
It is a process of equilibrium, not in the sense of a simple balance of forces, as in
mechanics, or an increase of entropy, as in thermodynamics, but in the sense
which has now been brought out so clearly by cybernetics of self-regulation; that
is a series of active compensations on the part of the subject in response to external
disturbances and an adjustment that is both retroactive (loop systems or feedbacks)
and anticipatory, constituting a permanent system of compensations.69
The focus on biological determinism has led to a normative standard that all children, at a
specific age, attain certain capabilities and competencies determinative of the kinds of control
and intervention that must be put in place.
2. THE SOCIAL CHILD
CHILDHOOD AS NURTURE
Closely related to the discourses on childhood from developmental psychology are the
sociological accounts. Jenks explains:
Thus childhood is spoken about as: a becoming; tabula rasa; laying down the
foundations; shaping the individual; taking on; growing up; preparation;
inadequacy; inexperience; immaturity, and so on. Such metaphoricity all speaks of
an essential and magnetic relation to an unexplicated, but nevertheless firmly
established, rational adult world. This adult world is assumed to be not only
complete, recognizable and in stasis, but also, and perhaps most significantly,
68
69

Archard, supra note 47 at 43.


Piaget and Inhelder, supra note 62 at 157.

17
desirable. It is a benevolent and coherent totality which extends a welcome to the
child, invites him to cast off the qualities that ensure his differences, and
encourages his acquiescence to the preponderance of the induction procedures that
will guarantee his corporate identity.70
Fundamental to the sociological approach is the process of socialization most famously
propounded by Talcott Parsons. He defines socialization of the child specifically as the process
of acquisition by the child of the patterns of behavior expected of persons in his or her particular
society.71 As such, Prout and James posit:
[S]ocialization is the process which magically transforms [children] into [adults],
the key which turns the asocial child into a social adult.The child is portrayed,
like the laboratory rat, as being at the mercy of external stimuli: passive and
conforming. Lost in a social maze it is the adult who offers directions. The child,
like the rat, responds accordingly and is finally rewarded by becoming social, by
becoming adult.72
Socialization implies that a child does not become an adult until he or she is taught or trained to
become one. Childhood is therefore a preparation for adulthood; and teaching children
including parenting is understood as the process of shaping children to become proper
adults. In this sense, socializing children becomes an important role that adults must undertake
in the lives of children.
B. THE EMERGING PARADIGM OF CHILDREN AND CHILDHOOD
This thesis looks to two significant developments that have reshaped understandings of children
and childhood over the course of the past three decades. First, there has been a surge of critical
re-evaluation of the dominant accounts of childhood within many different fields of study
including psychology, sociology, anthropology, history and education studies that, in turn, have
advocated for a more particularistic and contextually-sensitive account of what it means to be a
child of a particular culture and society at a specific point in history. Second, there has also been
the emergence of a modern childrens rights movement culminating with the UNCRC. Not only
have these influences pushed for an acknowledgement of the diversity of childrens lives but
70

Jenks, supra note 64 at 8.


Talcott Parsons, The Social System (London: Routledge, 1991).
72
Prout and James, supra note 27 at 13.
71

18
they have also espoused a repositioning of children within the different contexts where they live
their realities.
1. CHILDHOOD STUDIES
The new understandings of childhood have coalesced around the label of childhood studies.
With the recognition that homogenized and universalistic conceptions of childhood are
inadequate to represent the diversity in the lives of children, a new standard for the study of
childhood emerged reflected in the notion that childhood is a social construction influenced by a
specific societys economic, social and cultural processes.73 Generally, Berger and Luckmann
have articulated the concept of social construction in their work, The Social Construction of
Reality.74 They argue that reality is nothing more than a symbolic universe constructed by the
individual. It consists of the matrix of all socially objectivated and subjectively real meanings;
the entire historic society and the entire biography of the individual.75 Explaining this
constructed reality, they write:
Man is biologically predestined to construct and to inhabit a world with others.
This world becomes for him the dominant and definitive reality. Its limits are set
by nature, but once constructed, this world acts back upon nature. In the dialectic
between nature and the socially constructed world the human organism itself is
transformed. In this same dialectic man produces reality and thereby produces
himself.76
Within the literature of childhood studies, the notion of childhood as a social construction has
been understood as a demand for a more particularistic and contextually-sensitive account of
what it means to be a child of a particular culture and society at a specific point in history. Thus,
McDonald writes:

73

See Sharon Stephens, Introduction: Children and the Politics of Culture in Late Capitalism in Sharon
Stephens, ed, Children and the Politics of Culture (New Jersey: Princeton University Press, 1995); See also Allison
James & Alan Prout, Strategies and Structures: Towards a New Perspective on Childrens Experiences of Family
Life in Julia Brannen and Margaret OBrien, eds, Children in Families Research and Policy (London: The Falmer
Press, 1996).
74
Peter Berger and Thomas Luckmann, The Social Construction of Reality: A Treatise in the Sociology of
Knowledge (New York: Anchor Books, 1967).
75
Ibid at 96.
76
Ibid at 183.

19
The new approach, while not rejecting the notion that children develop and
mature biologically and cognitively, suggests instead that any approach which
conceptualises childhood as a universal biologically determined condition misses
the nuance and difference arising from temporal, historical and social variance in
the lives of children. As such, the new sociology attempts to overcome the
totalizing impetus embedded in traditional accounts in an effort to respond to
difference.77
The seminal work of Prout and James78 in childhood studies outlines the new understandings of
children and childhood:
1. Childhood is understood as a social construction. As such it provides an
interpretive frame for contextualizing the early years of human life. Childhood, as
distinct from biological immaturity, is neither a natural nor universal feature of
human groups but appears as a specific structural and cultural component of many
societies.
2. Childhood is a variable of social analysis. It can never be entirely divorced from
other variables such as class, gender, or ethnicity. Comparative and cross-cultural
analysis reveals a variety of childhoods rather than a single and universal
phenomenon.
3. Childrens social relationships and cultures are worthy of study in their own
right, independent of the perspective and concerns of adults.
4. Children are and must be seen as active in the construction and determination of
their own social lives, the lives of those around them and of the societies in which
they live. Children are not just the passive subjects of social structures and
processes.
5. Ethnography is a particularly useful methodology for the study of childhood. It
allows children a more direct voice and participation in the production of
sociological data than is usually possible through experimental or survey styles of
research.
6. Childhood is a phenomenon in relation to which the double hermeneutic of the
social sciences is acutely present. That is to say, to proclaim a new paradigm of
childhood sociology is also to engage in and respond to the process of
reconstructing childhood in society.79

77

McDonald, supra note 23 at 244.


Prout and James, supra note 27.
79
Ibid.
78

20
Given the contextualization of childhood, the import of childhood studies is the recognition that
different discursive practices produce different childhoods, each and all of which are real
within their own regime of truth.80 The result is the recognition that there are multiple
childhood experiences influenced by specific contexts producing multiple realities.
Lansdown writes:
What these cultural frameworks offer is a more complex understanding of how
children develop and what influences that process. They challenge the view that
certain behaviors, thinking and social relationships can be ascribed as normal at
any given age, and they challenge assumptions that it is possible to prescribe what
is likely to be appropriate or harmful to a childs development without
understanding the context in which it arises, the underlying values and the prior
experiences of learning.81
Equally important, within the understanding of multiple childhood experiences, this emerging
paradigm also recognizes children as active participants in the construction and determination of
their own lives, the lives of those around them and of the societies in which they live. This
underscores their capacities to express their ideas and contribute on matters and events that
affect them. Thus, children are seen not only as moral agents possessing the capacity for moral
reasoning, but also as social actors whose dealings and interactions have consequences. As
McDonald asserts:
[T]he new sociology of childhoodemphasises the competence of children as
social actors and as informants about their lives. Children are keen, constructive
and thoughtful commentators on their everyday lives at home, at school and in the
wider community and as such, have a richness of knowledge to offer that would
be senseless to neglect (citation omitted).82
2. CHILD RIGHTS AND THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD
The second important development that has led to a reshaping of understandings of children and
childhood is the strong influence of the childrens rights discourse culminating in the adoption
and near universal acceptance of the UNCRC. Human rights advocates have pushed for the
80

Ibid at 26.
Gerison Lansdown, The Evolving Capacities of the Child (Florence, Italy: UNICEF Innocenti Research Centre,
2005) at 12.
82
McDonald, supra note 23 at 245.
81

21
recognition of children as full-fledged legal persons. According to Verhellen, the starting
pointunderlying this demand is the equality of all people, regardless of age.83 However, she
is quick to add that: the idea is not to treat children and adults in the same way, but to
guarantee children that they can be themselves.84
The Convention itself was initially delayed by a long and difficult drafting process, but the
resulting document is nonetheless both ambitious and far-reaching. The potential exists within
the UNCRC to advance considerably the rights of children all over the globe.85 That the
UNCRC has generated considerable enthusiasm among states is evidenced by the fact that on
the day it opened for signature in January 1990, 61 states became signatories and it came into
force a mere seven months later.86 The UNCRC has achieved almost universal acceptance and at
present it already has 193 Parties;87 only the U.S.,88 Somalia89 and South Sudan (which became
an independent State only in 2011) are outside the UNCRC. The UNCRC represents an
evolution of attitudes towards, and perceptions of, children and childhood. As James and James
underscore, the UNCRC has a huge importance as a catalyst to cultural change and thus the
gradual modification of national laws and the childhoods these construct.90

83

Verhellen, supra note 40 at 58.


Ibid.
85
Deidre Fottrell, One Step Forward or Two Steps Sideways? Assessing the First Decade of the Childrens
Convention on the Rights of the Child in Deidre Fottrell, ed, Revisiting Childrens Rigts:10 Years of the UN
Convention on the Rights of the Child (The Hague: Kluwer Law International, 2000).
86
Ibid. The UNCRC was adopted on November 20, 1989 and entered into force less than a year later on September
2, 1990 in accordance with Article 49. Earlier international human rights instruments entered into force as follows:
both the International Covenant on Civil and Political Rights [ICCPR] and International Covenant on Economic,
Social and Cultural Rights [ICESCR] were opened for signature on December 19, 1966 but the former entered into
force only on March 23, 1976 in accordance with Article 49 while the latter entered into force on January 3, 1976 in
accordance with Article 27; the International Convention on the Elimination of all forms of Racial Discrimination
[ICERD] entered into force on January 4, 1969, three years after it was adopted on December 21, 1965; the
Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW] was opened for
signature on March 1, 1980 and entered into force a year and a half later on September 3, 1981 in accordance with
Article 27(1).
87
United Nations Treaty Collection, Chapter IV: Human Rights, online: United Nations Treaty Collection
<http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en>.
Other
international human rights treaties have the following number of States Parties as of August 6, 2012: the ICCPR
has 167 State Parties; the ICESCR has 160 State Parties; the ICERD has 175 State Parties; and the CEDAW has
187 State Parties. United Nations Treaty Collection, Chapter IV: Human Rights, online: United Nations Treaty
Collection <http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en>. The Philippines was one of the
first States to sign the UNCRC doing so on January 26, 1990 and ratifying it within the same year on August 26.
88
The U.S. did sign the UNCRC on February 16, 1995, however, it has yet to ratify the Convention.
89
Somalia signed the UNCRC on May 9, 2002 but has yet to ratify it.
90
James and James, supra note 5 at 215.
84

22
Notably, for the first time in international law,91 a universal human rights document explicitly
recognizes a childs right to express his or her views freely in all matters affecting him or her
with those views being given due weight. Article 12 of the UNCRC provides:
States Parties shall assure to the child who is capable of forming his or her own
views the right to express those views freely in all matters affecting the child, the
views of the child being given due weight in accordance with the age and maturity
of the child.92
The right accomplishes two important goals: 1) it draws attention to childrens capacity to act
and make meaning of their experiences; and 2) it reframes adults responses to childrens
actions. As such, these objectives change the position of children from passive recipients of
adult care and protection to active rights holders who participate in the construction and
determination of their own lives, the lives of those around them and of the societies in which
they live. Foley et al. explain the expanding objectives of childrens rights:
While childrens rights has a long history, for much of the time it has focused on
the need for policy measures and legal initiatives to better promote the welfare of
children. Today, while this is still the dominant meaning, the modern childrens
right movement has moved beyond a traditional concern with the protection of
children inside and outside the home. Now the issue of the childs voice or
participation is seen as central to the childrens rights project.93
C. ARTICULATING THE PARTICIPATION OF CHILDREN

91

But see Henk van Beers et al, Creating an Enabling Environment: Capacity Building in Childrens Participation,
Save the Children Sweden, Vietnam, 2000-2004 (Bangkok, Thailand: Save the Children Sweden, 2006) who posit
that: Even though the CRC might be argued to be the origin of a certain legal notion of childrens participation (in
Articles 12, 13 and 15 in particular), the fact that participation applies to children is fundamental to human rights as
expressed in UN legal documents from 1945 (and to a certain extent in the earlier documents of the League of
Nations). The CRC simply made it specific that, for human beings less than 18 years of age, participation is
modified in view of their evolving capacities.
92
UNCRC, supra note 7. In 2006, the Committee on the Rights of the Child held a day of general discussion in
order to explore the meaning and significance of Art. 12 of the UNCRC. As a result of that day of general
discussion, the Committee came out with its General Comment No. 12 (2009) The Right of the Child to be Heard,
supra note 8 which outlines the requirements and the impact of childrens participation in different situations and
settings.
93
Pam Foley et al, Contradictory and Convergent Trends in Law and Policy Affecting Children in England in
Christine Hallett and Alan Prout, eds, Hearing the Voices of Children: Social Policy for a New Century (London:
RoutledgeFalmer, 2003) at 108.

23
This final section now examines in detail the concept of childrens participation through an
understanding that makes it meaningful and relevant within the Philippine context. The concern
that the participation of children is ambiguous, uncertain and contested94 highlights the fact
understanding childrens participation entails engaging in the discourse of children and
childhood. This means that to fully understand the implications of childrens participation, one
has to uncover underlying assumptions, interests and agendas that inform conceptions of who
the child is and what the experience of childhood entails as done in the preceding section.
Clearly, childrens participation is anchored in an emerging paradigm of children and childhood
that resists universalistic conceptions of childhood and repositions children in society. The
emerging paradigm challenges the dominant discourse that sanctions a restrictive and totalizing
construction of children and childhood by promoting forms of practice and policy change
which will acknowledge, take account of, and respond positively to young people in light of
their backgrounds and experience.95
With the changing construct of childhood and the increasing recognition of the engagements of
children brought about by the emerging paradigm, there is a need to clarify exactly what
participation means and how it can be achieved in specific contexts. McNeish and Newman, in
fact, argue that the debate has moved on from whether to involve children and young people to
how such involvement can be achieved and what approaches are most appropriate in which
situations.96 They identify four issues with respect to this contextualization of childrens
participation: 1) addressing attitudinal barriers; 2) creating more participatory structures and
processes; 3) achieving inclusive participation and; 4) motivating young children to be
involved.97 These factors focus on both the child as the actor-participant and the mechanisms
and institutions that promote or prevent the participation of children.
The challenge then in articulating the participation of children is not simply for children to
have a say but also for adults to listen to childrens voices. As the UNCRC reminds us,

94

Graham and Fitzgerald, supra note 4 at 343.


Smith, supra note 22 at 169.
96
Diana McNeish and Tony Newman, Involving Children and Young People in Decision Making in Diana
McNeish et al, eds, What Works for Children? Effective Services for Children and Families (Buckingham: Open
University Press, 2002) at 187.
97
Ibid.
95

24
childrens participation involves not only the right of children to express their views but also
that those views be given due weight.98 Graham and Fitzgerald assert:
While inviting children is an important first step in facilitating their participation,
the extent to which our own knowledge, values and assumptions are open to
question will largely determine the process and outcomes of the encounter,
including what we select to report or act upon.99
Lundy writes that a prerequisite for the meaningful engagement of children and young people
in decision making is the creation of an opportunity for involvement a space in which children
are encouraged to express their views.100 But space alone cannot fully guarantee the
involvement of children. Completing it is the assurance that the views expressed by children are
given due weight. Lundy explains this in terms of audience and influence. According to her:
Implicit within the notion of due weight is the fact that children have a right to have their views
listened to (not just heard) by those involved in the decision-making processes.101
The emerging paradigm advanced by this thesis, within which the participation of children is
located, has a distinctive contextual understanding. This emerging paradigm can be understood
as an expression of deeply held indigenous relational values reflecting an interdependent
understanding of children and childhood where mutually reciprocal connections between
children, adults and their communities are highly valued. Within this contextualized
understanding of the emerging paradigm, the participation of children finds application using
the same lens of indigenous relational frameworks where the child shares in reciprocal and
interdependent responsibilities. The section frames this participation of children as an
embodiment of three important concepts that underlie a contextualized emerging paradigm:
recognition of children as rights-bearers; acknowledgment of childrens realities as lived and
experienced by them; and respect for the meaningful and constitutive relationships that children
establish.
98

UNCRC, supra note 7. It should be noted that aside from this core provision on participation, the UNCRC also
provides for different forms, conditions and requirements of participation of children such as: Art. 13 on the Right
to Freedom of Expression; Art. 14 on Freedom of Thought, Conscience and Religion; Art. 15 on Freedom of
Association and Peaceful Assembly; and Art. 31 on the Participation in Cultural and Artistic Life.
99
Graham and Fitzgerald, supra note 4 at 352.
100
Laura Lundy, Voice is Not Enough: Conceptualising Article 12 of the United Nations Convention on the
Rights of the Child (2007) 33 British Educational Research Journal 927 at 933.
101
Ibid at 936.

25

The participation of children needs to be appropriate to its context; its purpose needs to clear
and the processes need to be accessible. The three concepts used in this section to frame
childrens participation rights, realities, and relationships provide a meaningful and relevant
means of effectively implementing participation. Significantly, this framework draws on three
definitive studies where children were asked to articulate their own understandings of
participation.102
1. PARTICIPATION AS A RECOGNITION OF CHILDREN AS RIGHTS-BEARERS
Participation entails a recognition of the rights of children as individuals with a distinct
personhood. Being a rights-holder means that every child deserves respect as a fellow human
being. Respect for the intrinsic worth of every person should mean that individuals are not to be
perceived or treated merely as instruments or objects of the will of others.103 Supporting this
understanding, Neale writes:
It is only when children are recognised as people in their own right that adults can
acknowledge that they have their own ways of understanding the world and are
capable of defining their own needs, rights, interests and responsibilities. When
adults begin to notice children in this new way, they can then begin to appreciate
and show some respect for childrens subjective world views. Recognising and
respecting children in these ways is the necessary precursor for developing
appropriate modes of participation, and knowing how and when (and when not) to
employ them.104
As discussed in the previous section, at the core of the emerging paradigm is the understanding
that children are capable actors active in the construction and determination of their own lives,
the lives of those around them and of the societies in which they live. With such an
understanding, childrens participation focuses on the capacities of children by moving away
from the normative criterion of competence. Instead of measuring the childs ability based on an
102

Child 21 Framework, supra note 36; Standing Up for Ourselves: A Study on the Concepts and Practices of
Young Peoples Right to Participation (Manila, Philippines: ECPAT International, International Young People's
Action Against Sexual Exploitation of Children-IYP ASEC, AusAID, UNICEF, 1999) [Standing Up for
Ourselves]; Elizabeth Protacio-de Castro et al, Walking the Road Together: Issues and Challenges in Facilitating
Childrens Participation in the Philippines (2007) 17:1 Children, Youth and Environments 105.
103
Oscar Schachter, Human Dignity as a Normative Concept (1983) 77 Am J Intl L 848.
104
Neale, supra note 30 at 9.

26
adultist standard of competence, capacity simply recognizes what the child is able to do here
and now. Neale explains:
There is an underlying assumption that it is only when (or if) young people can
accommodate to the world of adulthood that they will have something worth
saying and can be taken seriously. In other words, their inclusion is conditional on
their assuming adult modes of behaving and communicating.105
Even though children and adults perceive and make meaning of their environments in different
ways, this does not make children any less capable nor detract from their personhood. This
reconstruction of the child as an actor-participant is borne out by the principle of evolving
capacities of the child enshrined in the UNCRC.106 The focus of the dominant discourse on
children and childhood has been on the promotion of the normal development of children.
Within that dominant discourse, children have been measured based on how un-adult-like
they are. This has entailed the construction of children as essentially vulnerable, dependent and
incompetent. The objective then has been to outgrow these shortcomings by becoming an
adult. As McDonald writes, the dominant paradigm tends to objectify children, rendering them
as immature adults in the making, captured and propelled by an inevitable telos of cognitive,
physical, emotional and social development towards some idealised and imagined end.107
However, within the framework of the UNCRC, the emphasis is now on the childs evolving
capacities which involves:
a positive point of view, to try to determine which choices and decisions
children should and can make at different stages of development, what kinds of
responsibility they are able to and can benefit from having and how their decisionmaking and responsibility-taking capacities can be encouraged, supported and
enhanced.108

105

Ibid at 15.
UNCRC, supra note 7, art. 5 provides:
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the
members of the extended family or community as provided for by local custom, legal guardians or
other persons legally responsible for the child, to provide, in a manner consistent with the evolving
capacities of the child, appropriate direction and guidance in the exercise by the child of the rights
recognized in the present Convention (emphasis added).
See Van Bueren, supra note 32.
107
McDonald, supra note 23 at 244.
108
Mlfrid Grude Flekky and Natalie Hevener Kaufman, The Participation Rights of the Child: Rights and
Responsibilities in Family and Society (London: Jessica Kingsley Publishers, 1997) at 68.
106

27
Recognition of the evolving capacities of the child rests on a progressive understanding of
childhood within which a childs development and social realities are inadequately represented
by the institution we refer to as childhood. As such, the concept of the evolving capacities of
children engages a more expansive understanding of development.109 Although it cannot be
denied that children indeed go through a process of development, children in different
environments who face diverse experiences have varied paths of evolution in different contexts.
Clearly, the transition from childhood to adulthood is not a linear process from dependence and
incompetence to independence and competence.110 Given this understanding of children, the
limitation of age as the sole universal measure to characterize a child becomes apparent. As
Neale correctly posits:
[C]hildren do not become any more deserving of recognition, respect or
participation simply by virtue of growing older. Nor do they earn it by acquiring
competencies, responsibilities, understanding or maturity. These qualities are not
the product of biological growth, nor do they develop in a social vacuum. They are
born of experiences, activities and interactions with others in short, they develop
through participatory practices.111
Within the Philippine context, participation as a recognition of the childs right as a person finds
meaning not only through the socio-cultural significance attached to the child112 but also
through the legal recognition of the child as endowed with the dignity and worth of a human
being from the moment of his conception.113 In the Philippine value system, dignity and human
worth find context in the indigenous principle of dangal which embodies the moral imperatives
of the core value system114 that is used to characterize identity, pride and commitment

109

In fact, in giving meaning to Art. 12 of the UNCRC, the United Nations Committee on the Rights of the Child,
supra note 8 at 9, par. 20 notes that the phrase States parties shall assure the right to be heard to every child
capable of forming his or her own views should not be seen as a limitation, but rather as an obligation for States
parties to assess the capacity of the child to form an autonomous opinion to the greatest extent possible. This means
that States parties cannot begin with the assumption that a child is incapable of expressing her or his own views. On
the contrary, States parties should presume that a child has the capacity to form her or his own views and recognize
that she or he has the right to express them; it is not up to the child to first prove her or his capacity.
110
Samantha Punch, Negotiating Autonomy: Childhoods in Rural Bolivia in Leena Alanen and Berry Mayall,
eds, Conceptualizing Child-Adult Relations (London: RoutledgeFalmer, 2001) at 34.
111
Neale, supra note 30 at 13-14.
112
See e.g. Felipe Landa Jocano, Filipino Social Organization: Traditional Kinship and Family Organization
(Metro Manila, Philippines: Punlad Research House, 1998) who demonstrates that the child is the link between the
network of relationships considered vital within the social context including the family, ancestry and spirituality.
113
Presidential Decree No. 603 (1974) The Child and Youth Welfare Code, art. 3, par. 1.
114
Felipe Landa Jocano, Notion of Value in Filipino Culture: The Concept of Pamantayan Punlad Research Paper
No. 2 Series on Filipino Values (Quezon City, Philippines: Punlad Research House, 1992) at 16.

28
toprinciplesand people.115 From these understandings, the intrinsic quality and meaning of
actions of the child and towards the child take on a significant legal, social and moral value.
In fact, children themselves understand that participation involves an expression of the
capacities of each and every child, especially their capacity to stand up for what they believe in
and to accomplish what they set out to do.116 Consequently, participation acknowledges this
distinct identity of children not merely as non-adults, but as individuals in their own right.
This understanding is in keeping with the tradition of the UNCRC which sees the right of the
child to have a say and to be listened to as a basic human right.117 The Committee on the Rights
of the Child has called this a new social contract118 which fully recognizes children as rightsholders. They are not mere passive recipients of adult protective care, but are also active
participants in all matters affecting them. Flekky and Kaufman explain:
People with the same rights are worthy of the same respect, which is reciprocal and
thus involves responsibility in relation to the other as well as to oneself, to listen to
and to consider the rights and views of others as well as expressing individual
views and rights.119
Brennan and Noggle elucidate this recognition of the right of children as persons through what
they refer to as Equal Consideration Thesis.120 They write:
[The Equal Consideration Thesis] means that children are to be taken seriously as
moral agents, and that their moral claims are not to be discounted merely because
they are children.[T]he Equal Consideration Thesis does mean that the moral
status of children does not depend merely on their age. The mere fact that they are
children does not give them an inferior moral status.
The basis for the Equal Consideration Thesis is the fact that children are persons.
Because they are persons, they are entitled to the same moral consideration to

115

Ibid.
Standing Up for Ourselves, supra note 102 at 156.
117
See also Liam Cairns, Participation with Purpose in E. Kay Tisdall et al, eds, Children, Young People and
Social Inclusion: Participation for What? (Bristol, UK: Policy Press, 2006).
118
United Nations Committee on the Rights of the Child, Day of General Discussion on the Right of the Child to Be
Heard, 43rd Sess (2006) online: Office of the United Nations High Commissioner for Human Rights
<http://www.ohchr.org/english/bodies/crc/docs/discussion/Final_Recommendations_after_DGD.doc>.
119
Flekky and Kaufman, supra note 108 at 9.
120
Samantha Brennan and Robert Noggle, The Moral Status of Children: Childrens Rights, Parents Rights and
Family Justice (1997) 23:1 Social Theory and Practice 1.
116

29
which anyone is entitled merely in virtue of being a person. In other words, a
certain moral status attaches generally to all persons, including children.121
2. PARTICIPATION AS AN ACKNOWLEDGMENT OF CHILDRENS REALITIES
Participation is also understood as a recognition of the lives that children live and the
experiences that they bring with them. Given the contextualization of childhood brought about
by the emerging paradigm which recognizes different discursive practices produce different
childhoods, each and all of which are real within their own regime of truth,122 participation
allows children to be open about their realities and have these considered as equally and
legitimately influential in defining the experience of childhood. Children are given a voice,
especially those, as McDonald asserts, normally excluded from giving authentic lived accounts
of the impact of particular policy domains.123
Within the Philippine context, participation is understood to be an acknowledgment of diverse
realities as manifested in the assertion of children themselves that they have something to share
about themselves, their lives, their families, and the communities they live in.124 This
demonstrates the fact that each child lives a distinct experience. Thus, when children declare
that they know their own experience best and are capable of articulating issues that affect
them,125 they, in effect, emphasize a diversity of values, needs and aspirations. The challenge
then for effective recognition of childrens participation is to respond and reflect these local
needs and values. As well, any system must be able to recognize these diverse realities of
children rather than to promote a supposedly authentic childhood experience that may be
irrelevant and meaningless to the lives of children or may push them even more into
marginality.
3. PARTICIPATION AS RESPECT FOR THE RELATIONSHIPS OF CHILDREN
An important concept that frames the participation of children is respect for the relationships
121

Ibid at 3.
Prout and James, supra note 27 at 26.
123
McDonald, supra note 23 at 245.
124
Standing Up for Ourselves, supra note 102.
125
Ibid.
122

30
that children establish and maintain. Under the emerging paradigm, an important re-imagining
of children is, as Prout and James famously declare, that: Children are and must be seen as
active in the construction and determination of their own social lives, the lives of those around
them and of the societies in which they live.126 With such reconstruction, children are seen not
only as moral agents possessing the capacity for moral reasoning, but also as social actors whose
dealings and interactions have consequences.127
The understanding of childrens participation under the emerging paradigm does not suggest
that the views of children and young people should be afforded any special status only that
they should be accepted as being valid as the views of other citizens.128 McDonald asserts:
childrens knowledge is (at a minimum) as valuable, authentic and significant as any other
form of social scientific knowledge.129 Marchant and Kirby sum this up by declaring that adults
at a minimum should listen, seriously consider the expressed views and feed back what action
they do (or do not) plan to take.130 Neale further says that participation is far from claiming
unfettered choice.131 Rather, it opens opportunities for the child to be involved in
collaborative and supportive decision-making.
This understanding of participation shows that the child is really connected to others, with
participation being not only an end in itself but also, and as importantly, a connective process.
That process genuinely represents the interdependency and mutuality in the relationships of
children.132 This understanding of participation has an even greater significance within the
Philippine context. The understanding of the participation of children as contextualized within
the Philippines takes on a distinctively indigenous character when expressed through the

126

Prout and James, supra note 27.


Berry Mayall, Towards a Sociology for Childhood: Thinking from Childrens Lives (Buckingham: Open
University Press, 2002) at 21 writes that these new understandings see children as agents whose engagements
involve negotiation with others, with the effect that the interaction makes a difference to a relationship or to a
decision, to the workings of a set of social assumptions or constraints.
128
Cairns, supra note 117 at 219.
129
McDonald, supra note 23 at 246.
130
Ruth Marchant and Perpetua Kirby, The Participation of Young Children: Communication, Consultation and
Involvement in Bren Neale, ed, Young Childrens Citizenship: Ideas Into Practice (York, UK: Joseph Rowntree
Foundation, 2004) at 155.
131
Neale, supra note 30.
132
Nedelsky, supra note 37; Jennifer Nedelsky, Reconceiving Autonomy: Sources, Thoughts and Possibilities
(1989) 1 Yale J Law and Fem 7. Similarly, Minow, supra note 41 talks about autonomy in the dimension of
interdependencies and interconnectedness of lives.
127

31
Filipino concept of the kapwa.133 As an articulation of participation, kapwa involves the
establishment of deep and mutually reciprocal connections between children and adults. In this
expression, all the members of the community, including children, are engaged in any given
context not only through the exercise of their rights, but also through the establishment of their
connections as expressed in reciprocal responsibilities and relationships. Clearly, this
manifestation of participation is not meant to assert individual autonomy, but rather to share
ones self with the other. Indeed, there is a substantial difference in the use of the other in
the Western liberal tradition as opposed to the other within the Filipino concept of the kapwa.
Enriquez explains:
When asked for the closest English equivalent of kapwa, one word that comes to
mind is the English word others. However, the Filipino word kapwa is very
different from the English word others. In Filipino, kapwa is the unity of the
self and others. The English others is actually used in opposition to the
self, and implies the recognition of the self as a separate identity. In contrast,
kapwa is a recognition of shared identity, an inner self shared with others.134
Indicative of this relational understanding of participation, children themselves view their
participation as a process wherein all of the participants experience change as a result of their
interactions:
Child participation involves interacting with people. It means being able to speak
up and stand up for ones rights. It is sharing and being involved in issues
concerning children. It means joining activities and taking on responsibilities based
on ones current capabilities. It means helping others even in a small way.
Child participation means being part of the decision-making in families and
communities. This means young people will do their part and responsibilities to
improve their communities. This means children take active part in changing their
present community and society.135
Equally important, children understand participation as sharing: sharing ones opinion and
knowledge on important mattersshar[ing] ones feelings[and] shar[ing] ones wishes, to be

133

See full discussion of the kapwa philosophy in Section IV of the Family Chapter.
Virgilio Enriquez, From Colonial to Liberation Psychology: The Philippine Experience (Diliman, Quezon City:
University of the Philippines Press, 1992) at 43.
135
Standing Up for Ourselves, supra note 102 at 157.
134

32
listened to, and that these be considered and acted upon.136 This demonstrates the relational
understanding of participation within the Philippine context in that it respects children in ways
that make them understand what is happening to them; enables them to participate effectively in
decisions affecting their lives, and enables them to define and pursue their goals all within the
context of the relationships they create and maintain. Participation involves a process of sharing
identities in which children negotiate complex roles, responsibilities and relationships in their
lives. Consequently, the recognition of childrens participation entails the reflection and
acknowledgement of this system of interdependencies and interconnectedness of lives.
A concern raised with respect to participation is that the vulnerable child is unnecessarily
exposed to even more dangers. This apprehension is, once again, derived from an understanding
of participation as a grant of autonomy to children where they are deemed independent and
allowed to be left to themselves. From such an understanding, participation endangers the child
and consequently becomes diametrically opposed to protection.137 However, the relational
nature of participation negates the premise that participation is autonomy, which according to
such view exposes the child to undue dangers. Instead of establishing independence from adults,
participation, in fact, builds interdependencies where children create connections with the
people around them. This contextualization of participation and its impact on the vulnerable
child simply proves the point of Christensen that: The construction of children as essentially
vulnerable tends to exclude consideration of the cultural and social context in which
vulnerability is constituted and to render childrens own understandings of themselves and their
bodily experiences as unimportant.138
It is not denied that children experience vulnerabilities both as children and because they are
children. In fact, there are clear mandates to protect children both locally139 and
136

Child 21 Framework, supra note 36 at 14. Similarly, in one of the seminal works on child participation, Roger
Hart, Childrens Participation: From Tokenism to Citizenship (Florence, Italy: UNICEF International Child
Development Centre, 1992) at 7 defines participation as the process of sharing decisions which affect ones life
and the life of the community in which one lives.
137
Michael Freeman, The Moral Status of Children: Essays on the Rights of the Child (The Hague, The
Netherlands: Kluwer Law International, 1997) refers to this dichotomy between protection and participation as
salvation vs. liberation.
138
Pia Christensen, Childhood and the Cultural Constitution of Vulnerable Bodies in Alan Prout, ed, The Body,
Childhood and Society (Great Britain: Macmillan Press Ltd., 2000) at 38.
139
1987 Philippine Constitution, art. II, s. 13 provides:
The State recognizes the vital role of the youth in nation-building and shall promote and protect their

33
internationally.140 However, the duties of parents, legal guardians or other individuals legally
responsible for the child to provide protection and care141 are tempered with the responsibility of
providing appropriate direction and guidance to the child in the exercise of his or her rights, in a
manner consistent with the childs evolving capacities.142 Lansdown explains:
The conventional view of protection has been a one-way process, with adults as
agents and children as recipients. What is now needed is a more sophisticated
approach, in which it is understood as a dynamic process in which adults take
responsibility for keeping children safe by listening to and respecting their
perspectives, while empowering them to contribute towards their own
protection.143
Participation and protection are not mutually exclusive.144 Rather, they are interlinked and as
Marchant and Kirby argue, childrens meaningful participation is inherently protective.145
With this understanding, the participation of children becomes transformative.
Returning to the statement at the beginning of this chapter, the participation of children

physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism
and nationalism, and encourage their involvement in public and civic affairs.
As well, Art. XV, s. 3(2) provides:
The State shall defend: (2) 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.
140
See e.g. UNCRC, supra note 7, 4th preambular clause citing the Universal Declaration of Human Rights, GA
Res. 217A (III), UN GAOR, 3d Sess. Supp. No. 13, UN Doc A/810 (1948) 71, art. 25(2). See also UNCRC, supra
note 7, 9th preambular clause citing the Declaration of the Rights of the Child, GA Res. 1386 (XIV), UN Doc A/841
(1959), 3rd whereas clause. These provisions emphasize that children are entitled to special care and assistance by
reason of their biological make-up.
141
For example, UNCRC, supra note 7, art. 3(2) provides:
States Parties undertake to ensure the child such protection and care as is necessary for his or her
well-being, taking into account the rights and duties of his or her parents, legal guardians or other
individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative
and administrative measures.
142
For example, UNCRC, supra note 7, art. 5 provides:
States Parties shall respect the responsibilities, rights, and duties of parents or, where applicable, the
members of the extended family or community as provided for by local custom, legal guardians or
other persons legally responsible for the child, to provide, in a manner consistent with the evolving
capacities of the child, appropriate direction and guidance in the exercise by the child of the rights
recognized in the present Convention.
143
Gerison Lansdown, International Developments in Childrens Participation: Lessons and Challenges in E. Kay
Tisdall et al, eds, Children, Young People and Social Inclusion: Participation for What? (Bristol, UK: Policy Press,
2006) at 149.
144
In fact, the United Nations Committee on the Rights of the Child, supra note 8 at 18, par. 74 notes that there can
be no correct application of the [best interests of the child] if the components of article 12 [on participation] are not
respected.
145
Marchant and Kirby, supra note 130 at 115.

34
essentially entails an inquiry into how we define children and childhood. More strikingly, the
question who do we think children are? was posed as a means of engaging the discourse of
children and childhood. Under the framework of childrens participation adopted within this
thesis, the question becomes whether we recognize and respect the rights, realities and
relationships of children or simply rely upon and sanction the construction of the child
protected in their childhood. How we respond will certainly be a reflection of our values as a
society. More importantly, it will make a real difference to the lives of children.
III. THE FRAMEWORK APPLIED: FOUR CONTEXTUAL STUDIES
The remaining chapters of the thesis involve the application of the framework of dominant and
emerging paradigms to critically analyze the discourse of children and childhood and how these
have allowed for the engagement/disengagement of children in four specific areas of Philippine
law. The four areas of law chosen represent the principal arenas where we see the lives of
children unfold and where their realities are lived and experienced. Laws and policies in these
areas thus have a significant impact upon the lives of children. Chapter I looks at the child in the
family; Chapter II looks at the child within the educational system; Chapter III examines the
child at work and; Chapter IV looks at the child entangled with the youth justice system. In each
of these specific contexts, the thesis endeavors to look at how Philippine laws and policies
define what being a child means and what childhood entails. This examination, in turn, reveals
the engagement/disengagement of the legal system with children through its recognition/non- or
misrecognition of their rights, realities and relationships.
As indicated at the beginning of this introductory chapter, in each context the thesis will
demonstrate the heavy influence of the dominant discourse of children and childhood on
Philippine laws and policies built around notions of innocence, dependence, incompetence and
vulnerability. At the same time, it will be shown that the Philippine legal system has indeed
shown some concrete attraction to the emerging paradigm, opening up opportunities for the
participation of children. However, this attraction to the emerging paradigm will be shown to be
uncertain, tenuous and contested, and dominant discourses often tend to prevail in the end. As
such, opportunities for and actual recognition of childrens participation within the legal system
have remained limited and exceptional. In each chapter, the thesis advocates for broader

35
acceptance of the emerging paradigm, and sketches the outlines of a legal framework for
participation which is both appropriate to each specific context and, at the same time, broadly
consistent with indigenous relational values.

36
CHAPTER I
THE CHILD, THE FAMILY AND THE LAW
As the chief agency of socialization, the family
reproduces cultural patterns in the individual.
It not only imparts ethical norms, providing the
child with his first instruction in the prevailing
social rules, it profoundly shapes his character,
in ways of which he is not even aware. The
family instills modes of thought and action that
become habitual. Because of its enormous
emotional influence, it colors all of a childs
subsequent experience.1
Social historian Christopher Lasch opens his oft-cited work, Haven in a Heartless World: The
Family Besieged2 with the above quoted passage. It sets up the critical role of the family in
society to which the work of socialization was once confined.3 This focus on the socialization
role of the family indicates a narrative between the child and the family where the child is an
open window to the family, and the family is portrayed in the child.4 The same statement of
Lasch introduces this chapter but for a different reason. It provides the context for a reexamination of the status and identity of children within a dominant discourse of the family
and socialization.
The rhetoric of family as the site of socialization has influenced much of our thinking about
the family and even more about children and childhood. Because family socialization is viewed
exclusively as the adult concern for the reproduction of social order5 where the asocial child is
magically transformed into a social adult,6 the result is that children are positioned simply as
[cultures] disembodied vehicle in the next generation, as if, through socialization, culture was

Christopher Lasch, Haven in a Heartless World: The Family Besieged (New York: Basic Books, Inc., 1977) at 3.
Ibid.
3
Ibid at 189. In fact, Lasch further argues at 130 that the only function of the family that matters is socialization.
4
Dimitra Makrinioti, Conceptualization of Childhood in a Welfare State: A Critical Reappraisal in Jens
Qvortrup, et al, eds, Childhood Matters: Social Theory, Practice and Politics (England: Avebury Ashgate
Publishing Limited, 1994) at 268.
5
Alan Prout and Allison James, A New Paradigm for the Sociology of Childhood? Provenance, Promise and
Problems in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary
Issues in the Sociological Study of Childhood, 2d ed (London: The Falmer Press, 1997) at 13.
6
Ibid.
2

37
literally able to be imprinted upon the child.7
This chapter demonstrates how the preferential status accorded by the Philippine legal system to
the family and its socialization role8 has been used to justify an absolutist model of adult
authority9 in the family where power and control are exercised over the person and property
of the child. Thus, legal norms involving engagements of the members of the family e.g.
support, guardianship, discipline, etc. have been exclusively understood as rights, duties and
obligations of parents towards their children relegating the latter to the status of passive
recipients of the familys specifically adults socialization. Under such adult authority,
children are constructed as dependents and incompetents whose experience of the family is
limited to being brought up, taught and developed. This means that the involvement of
children in legal norms within the family is interpreted simply as an occasion to carry out the
expectations imposed upon them by the family. Such a legal understanding not only ignores the
role of children and the value of their engagements within the family but also obscures the
mutually interdependent relationships between children and their families which has deep
foundational basis in the Philippines.
A fundamental argument of the chapter is that the Philippine family is more than an institution
characterized by a structure of influence and obligations. The chapter argues that to fully grasp
the family as an important context within which children live their lives, it must be understood
as a system of deep and profound sharing of identities embodied in the indigenous relational
framework of pakikipagkapwa.10 With such an understanding of the family, the engagements of
7

Allison James & Alan Prout, Strategies and Structures: Towards a New Perspective on Childrens Experiences of
Family Life in Julia Brannen & Margaret OBrien, eds, Children in Families Research and Policy (London: The
Falmer Press, 1996) at 42-43.
8
The significance of the socialization role of the family in the Philippines is embodied in the entrenched state
policy of the future of humanity passes by way of the family. Joaquin Bernas, SJ, The Intent of the 1986
Constitution Writers (Quezon City: Rex Bookstore, 1995) at 1128.
9
Philippine law uses the concept of parental authority, which will be discussed in detail in Section III, but this does
not necessarily mean that authority is limited to parents. In fact, the Family Code, infra note 53, art. 216 enumerates
the persons who may exercise substitute parental authority over children in this order: the surviving grandparent,
the oldest brother or sister, over 21 years of age or the childs actual custodian, over 21 years of age. In addition, in
case of foundlings, abandoned neglected or abused children and other children similarly situated, parental authority
shall be entrusted in summary judicial proceedings to heads of childrens homes, orphanages and similar
institutions duly accredited by the proper government agency. Ibid, art. 217. As well, the school, its administrators
and teachers, or the individual, entity or institution engaged in child care shall have special parental authority and
responsibility over the minor child while under their supervision, instruction or custody. Ibid, art. 218.
10
Understood within the Philippine value system, pakikipagkapwa involves a sharing of ones self thus it embodies
much more than mere interaction. This concept will be discussed in detail in Section IV.

38
its members as articulated within the legal system are interpreted as reciprocal and
interdependent. Seen in this manner, the intrinsic quality and meaning of actions of the child and
towards the child take on a significant legal, social and moral value. Legal norms then are not
simply interpreted as obligations imposed upon the child but are construed as responsibilities
undertaken by the child in this network of relationships. This recognizes the child as an active
participant in defining what the family is and what it means to be a child in that family.
Section I begins by examining the dominant paradigm of the family with its socialization role
and the corresponding constructions of children and childhood. Because the family is viewed as
the fundamental social institution, it has been ascribed with its own rights where the rights of its
members, particularly those of children, have been subsumed under it. Inherent in this
understanding of the family is the dominant theory of childhood that constructs children as
dependents and incompetents. With these understandings, parents are given the obligation and
duty in fact, guaranteed the right to bear and rear their child while the child is reduced to the
only family member upon whom influence is exerted.
Section II then explores an emerging paradigm where children are recognized as persons to be
considered in their own right who are worthy of equal consideration. Through the perspectives
of childhood studies and childrens rights, children are acknowledged as active participants in
the structuring and defining of the family where they are understood as complex actors in, and
interpreters of, a complex world11 whose forms of engagement translate into the strategies
of action that they utilize within the family.12 Consequently, children are not to be constructed
merely as passive recipients of the familys socialization. Such a reconstruction of children leads
to a shift in our understanding of socialization that it is not just about how adults influence
children but it is also as much about how children shape the family through their mov[ing] in
and out of relative independence and competence in relation to different people.13
Section III moves on to consider the current legal understandings of the family in the
Philippines and proceeds to demonstrate how these have been heavily influenced by the
11

James and Prout, supra note 7 at 49.


Ibid.
13
Samantha Punch, Negotiating Autonomy: Childhoods in Rural Bolivia in Leena Alanen and Berry Mayall, eds,
Conceptualizing Child-Adult Relations (London: RoutledgeFalmer, 2001) at 34.
12

39
dominant paradigm. In the current legal framework, engagements of members of the family are
understood through the legal concept of parental authority where parents exercise control over
their children. Thus, the rights, duties and obligations of parents towards their children simply
echo the dominant understanding of the socialization task of families i.e. to magically transform
the asocial child into a social adult14 as embodied in the legal duty to prepare the child for the
responsibilities of adulthood. In sanctioning the familys performance of its socialization
function, the legal system effectively constructs children as passive, dependent and vulnerable
individuals in need of this familial influence.
Having considered the current legal understandings of the Philippine family in Section III,
Section IV then engages in a critical analysis of these conceptions of the family. Examining the
nature and basis of the Philippine family reveals deeply entrenched indigenous concepts of
relationships that are, in fact, embedded within the legal system. Such a re-imagining of the
family provides an even more solid anchorage for the emerging paradigm where both the child
and the adult mutually influence each other in their relations within the family. Thus, the family
and its role of socialization are not based merely on the assumption of the dependency of the
child on the adult. This section demonstrates that as opposed to the dominant paradigm based on
a scheme of influence and obligations (as manifested in the concepts of parental authority and
child obedience), the emerging paradigm draws upon the relational nature of the family to
recognize the active in fact, essential role of children in defining and structuring the
fundamental nature of the family.
With the insights provided in Section IV, Section V goes into an analysis of specific legal norms
involving engagements of the members of the family that have been interpreted and understood
based on the dominant paradigm. The section specifically looks at: 1) support; 2) guardianship;
3) family home; 4) family affairs, child rearing and discipline; and 5) parental consent and
advice. These legal concepts have been typically understood from the adult perspective where
they are interpreted as rights, duties and obligations of parents towards their children. Because
of the heavy influence of the dominant paradigm as manifested in the pervasive legal concept of
parental authority, this section argues that the acknowledgment of the participation of children
in these specific norms is virtually non-existent. At most, the engagement of children is limited
14

Prout and James, supra note 5.

40
to being passive recipients of adult socialization upon whom expectations are demanded. This
obscures the childs role within the family, trivializes the childs identity, and forecloses the
possibility of allowing children opportunities to participate. The section proposes an
interpretation of the law that makes use of the relational nature of the family where the child is a
critical strand in this network of interdependencies. What this means is that the engagements of
children are interpreted as responsibilities taken on by them in the intimate sharing of collective
values that define and structure the Philippine family. With this legal understanding, children
are thus recognized to play an active and fundamental role in the family. Consequently, children
are reconstructed as active partakers in their own lives, the lives of those around them and of the
societies in which they live giving substance to the emerging paradigm.
I. THE DOMINANT PARADIGM
The family is commonly viewed as the fundamental social institution. Because of this status, the
family is understood to possess its own rights. In fact, this overarching significance accorded to
the family has been translated into a familial rights doctrine. What this familial right involves,
Nauck writes, is that the child has the right to be nurtured in the intimate existence of the
family, and the family has the right to do the nurturing.15 According to Archard, the right of the
family really translates into parental rights. He maintains that the familial right is the entitlement
of the adults of a family to make important decisions in the rearing and educating of the
children within that family.16 Guggenheim accepts this characterization of parental rights as
familial rights in that children reciprocally share the rights of their parents.17 He argues that the
right of the family is not just about the rights of parents to bear and rear their children but it is
also the right of the children to remain in their families. Thus, for Guggenheim, the most
important legal and political justifications for the rights of children lie within the rights of
parents and the family.18 These understandings highlight the attempt to subsume the issues of
15

Barbara Nauck, Implications of the United States Ratification of the United Nations Convention on the Rights
of the Child: Civil Rights, the Constitution and the Family (1994) 42 Clev St L Rev 675. Closely related to this
familial rights doctrine, Western liberal traditions have also attributed to the family a familial privacy where the
state is barred from interfering in its affairs. See e.g. Joseph Goldstein, Anna Freud and Albert Solnit, Beyond the
Best Interests of the Child (New York: The Free Press, 1973) and Joseph Goldstein, Anna Freud and Albert Solnit,
Before the Best Interests of the Child (New York: The Free Press, 1979).
16
David Archard, Children: Rights and Childhood, 2d ed (Milton Park: Routledge, 2004) at 167.
17
Martin Guggenheim, Whats Wrong with Childrens Rights (Cambridge, Mass.: Harvard University Press, 2005)
at 37.
18
Ibid at 17.

41
children under those of the familys. Thus, it came to be that what is good for the family is
also in the childs best interests.
The preferential status accorded to the family or as shown above, the adults within the family
is closely tied to its role of socialization. As the major site of socialization, the family has the
heavy responsibility of transforming the passive representatives of the future generation.19
Guggenheim explains:
Because childrearing involves considerably more than providing sustenance to
infants and childrenit is impossible to raise children without teaching them at the
same time. Moreover, it is inconceivable to teach them anything without shaping
their values and outlook in life. Everything that goes on in a household is fodder
for learning. Well beyond speech and communication skills, we teach our children
manners, and inculcate them with lifelong values. And, of course, religion is
something into which children are raised. Parents are free to attempt to inculcate
their preferred religious beliefs or disbeliefs in their children.20
There are three clear implications of this family socialization rhetoric on understandings of the
child which are consistent with the dominant paradigm of children and childhood: first, children
are the passive recipients of this socialization function; second, because it involves
transformation, the child who is the object of socialization is seen as different from the adult
upon whom the function rests; and third, socialization assumes universal truths about children
and childhood.
First, although the family is described as one of the most studied, debated and analysed
concepts in the social sciences,21 an examination of discourses on the family reveals that adults
are consistently the subject of inquiry. Children are considered only in relation to the actions of
the adults and how they are socialized within the family. James and Prout observe:

19

Prout and James, supra note 5.


Guggenheim, supra note 17 at 24. Because this childrearing function of the family involves forming the values,
interests, ideas, and religious beliefs of the next generation, Guggenheim argues that we should expect American
law to insist, as the Supreme Court has, that the state cannot enter the domain of family life. But see Frances
Olsen, The Myth of State Intervention in the Family (1985) 18 U Mich J L Reform 835 at 843 where she argues:
Even today the state is often expected to enforce parents authority over their children. To many who endorse
hierarchical family relations, nonintervention seems to mean simply state support for the family member with
power. Nonintervention loses much of its appeal if one thinks of it as mere reinforcement of the status quo.
21
Heather Montgomery, Children and Families in an International Context in Heather Montgomery and Mary
Kellett, eds, Children and Young Peoples Worlds: Developing Frameworks for Integrated Practice (UK: The
Policy Press, 2009) at 77.
20

42
Traditional texts on the family, invariably made but passing mention to children,
subsuming their experiences of family life under index entries such as childrearing, socialization and education or, alternatively, linking children with
other adult-centred activities, viz, children and conjugal roles, and experts, and
importance to parents and children and punishment. Clearly, whilst children
might have been seen within family sociology they were certainly not meant to be
heard (citations omitted).22
By focusing on the familial role of socialization, children are reduced to a passive role of
recipients of this family function. Thus, children are merely seen as the family member upon
whom influence is exerted. James and Prout describe this restricted role of children in the
socialization process: children simply take on the mantle of childhood, destined, in their turn,
to become adult socializers of other children through later taking on the familial role of
parent.23
Second, because of the understanding of socialization as the transformation of children,
McDonald writes: children are drawn along a trajectory leading them to the (preferred and
dominant status) of adult.24 This has allowed the difference between adults and children to be
couched in terms of children being somehow incomplete.25 As Archard argues: if childhood
is a stage, it is a stage on the way to adulthood. Adulthood is not a stage. It is the culmination
and goal of development, and thus what brings to an end the sequence of stages.26 In
characterizing this difference between adults and children, Prout and James write:
Children are regarded as immature, irrational, incompetent, asocial [and]
acultural with adults being mature, rational, competent, social and autonomous.
They are, in effect, two different instances of the species. Socialization is the
process which magically transforms the one into the other, the key which turns the
asocial child into a social adult.27
Third, socialization and its intended effects happen as expected because children everywhere go
through a universal stage of development. James and Prout write: The child, indeed any child,
[is] cited as an unproblematic representative of a largely undifferentiated category.28 This
22

James and Prout, supra note 7 at 41.


Ibid at 43.
24
Catherine McDonald, The Importance of Identity in Policy: The Case For and Of Children (2009) 23:4
Children and Society 241 at 245.
25
Ibid at 244.
26
Archard, supra note 16 at 44.
27
Prout and James, supra note 5.
28
James and Prout, supra note 7 at 43.
23

43
reflects the strong influence of the developmental paradigm of children and childhood that rests
on the themes of naturalness and universality. Mayall explains:
The supremacy of developmentalists ideas of children and childhood has allowed
us to bask in the comfortable view that children are the same children wherever
they are. Their emotional, relational and cognitive competences and
incompetences, relate to their age and their stage. In this vision, children can be
observed and described as having attained a certain level of development and
competence whatever the social context, rather than perceived as people whose
competence, confidence, knowledge and interactions vary according to the social
context.29
II. THE EMERGING PARADIGM
Innocuous as it may seem, the observation that children are typically seen as part of the family
has implications on how society treats children. When children are merely seen and not heard
and a part of the family without an identity of their own, they are construed as passive
recipients of the family socialization. This becomes the basis for their less preferred status and
peripheral identity within the family. Halldn writes:
Often the family is studied as a sociological arena in which the child is the family
member upon whom influence is exerted. It is adults who are the subject of
sociological inquiry, it is their actions that are studied in relation to the child. Even
when children are included in the research, they are seldom studied in their own
right.30
The challenge then for both childhood studies and the childrens rights movement has been to
move the study of childhood from being the study of children as passive beings structured by
the social context of the familyto the study of childrens active part in that structuring.31 It is
through this approach that children are studied on their own with a recognition of their
personhood and the active role that they play within the family. This involves moving on from
the narrow focus of socialisation and child development (the study of what children will
become) to a sociology that attempt[s] to take children seriously as they experience their lives in

29

Berry Mayall, Children in Action at Home and School in Berry Mayall, ed, Childrens Childhoods: Observed
and Experienced (London: The Falmer Press, 1994) at 118.
30
Gunilla Halldn, The Family A Refuge from Demands or an Arena for the Exercise of Power and Control
Childrens Fictions on Their Future Families in Berry Mayall, ed, Childrens Childhoods Observed and
Experienced (London: The Falmer Press, 1994) at 63.
31
James and Prout, supra note 7 at 45.

44
the here and now (emphasis in the original).32
Childhood studies, according to James and Prout, allows us to recognize that:
[T]he ways in which children are thought about vary cross-culturally and through
time and that, therefore, the biological base of childhood should not be awarded
any over-determining role in explaining how particular children live through that
period in the life course known as childhood.33
Such a shift in our understanding of children in families allows us to recognize how different
children live, navigate and negotiate their childhoods within their own families and those of
others that they interact with. With this shift in understanding also comes the reconstruction of
children as social actors and informants about their lives. This recognition, in turn, allows us to
respect each childhood experience as equally authentic challenging monolithic and universalistic
conceptions of what is expected of young people and what is in effect natural for them.34
Equally significant, the childrens rights discourse repositions children as persons to be
considered in their own right who are entitled to equal consideration. In this sense, children are
valued for who they are and what they bring to the definition and structuring of the family. A
child is an end by herself and not merely a means for anothers end.35
In this emerging paradigm, it is clear that the family remains an important context within which
to locate the child. To disregard the family would fail to adequately account for the total
experience of the child.36 Thus, one strategy according to Brannen and OBrien is to
recontextualize children within their families, to begin to prioritize their interests and
perspectives, and to take account of the permeability of the boundaries between families and the
outside world and the ways in which children negotiate these.37 Essential in this re32

Virginia Morrow, Children, Young People and their Families in the UK in Heather Montgomery and Mary
Kellett, eds, Children and Young Peoples Worlds: Developing Frameworks for Integrated Practice (UK: The
Policy Press, 2009) at 63.
33
James and Prout, supra note 7 at 44.
34
Roger Smith, Doing Justice to Young People: Youth Crime and Social Justice (Oxon: Willan Publishing, 2011) at
16.
35
Thomas Murray, The Worth of a Child (Berkeley: University of California Press, 1996). See also Oscar
Schachter, Human Dignity as a Normative Concept (1983) 77 Am J Intl L 848.
36
James and Prout, supra note 7.
37
Julia Brannen and Margaret OBrien, Introduction in Julia Brannen and Margaret OBrien, eds, Children in
Families: Research and Policy (London: The Falmer Press, 1996) at 1.

45
contextualization is a shift in our understanding of the family socialization and the role of the
child in such a process.
Highlighting the significance of the family is hardly surprising considering that it is usually the
first social unit to which the child is exposed.38

It is an institution where many social

interactions or using Mackays characterization of adult-child interactions, cultural


assimilation39 occur between adults and children. In fact, the United Nations Convention on
the Rights of the Child (UNCRC), although heralding the recognition of the rights of children,
recognizes the primary role of the family in any society. In the UNCRC, the family is afforded
the necessary protection and assistance as the fundamental group of society and the natural
environment for the growth and well-being of all its members, particularly children.40 The
UNCRC also recognizes the importance of a family environment for the full and harmonious
development of the child and her personality.41 Even the principal international human rights
instruments acknowledge the family as the natural and fundamental group unit of society
entitled to protection.42 Van Bueren writes:
Although international law recognises childhood as a separate status, it does not
follow that the rights of the child can be best protected when treated in isolation
from the rest of the family. International law acknowledges the family both as the
basic unit of society and as the natural environment for the growth and well being
of the child. Hence how international law defines the family is critical to the
child.To be able to protect the rights of children effectively, international law
must be both sufficiently flexible to accommodate a range of different family and
community structures and values, whilst simultaneously enshrining universallyagreed minimum standards on the international legal rights of the child.43

38

But see Archard, supra note 16 at 166 who proposes a diffusion of parenting which means that: even where
the family still retains its social role as the main form of childrearing, responsibility for upbringing should not
continually and exclusively fall upon the parents. Parenting may be embedded in a network of kin and
community, who can assume occasionally and to varying degrees parental responsibility. See also discussion
in supra note 9.
39
Robert Mackay, Conceptions of Children and Models of Socialization in Hans Peter Dreitzel, ed, Recent
Sociology No. 5 Childhood and Socialization (New York: Macmillan Publishing Co., Inc., 1973) at 31.
40
Convention on the Rights of the Child, 1577 UNTS 3 (entered into force 2 September 1990) [UNCRC], 5th
preambular clause.
41
Ibid, 6th preambular clause.
42
Universal Declaration of Human Rights, GA Res. 217A (III), UN GAOR, 3d Sess. Supp. No. 13, UN Doc A/810
(1948) 71, art. 16; International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171
(entered into force 23 March 1976) [ICCPR], art. 23(1); International Covenant on Economic, Social and Cultural
Rights, 19 December 1966, 993 UNTS 3, (entered into force 3 January 1976) [ICESCR], art. 10(1).
43
Geraldine Van Bueren, The International Law on the Rights of the Child (The Hague: Martinus Nijhoff
Publishers, 1998) at 67.

46
Clearly, protection of the family is tempered with the responsibility of providing appropriate
direction and guidance to the child in the exercise of rights, in a manner consistent with
evolving capacities. As the UNCRC provides:
States Parties shall respect the responsibilities, rights, and duties of parents or,
where applicable, the members of the extended family or community as provided
for by local custom, legal guardians or other persons legally responsible for the
child, to provide, in a manner consistent with the evolving capacities of the child,
appropriate direction and guidance in the exercise by the child of the rights
recognized in the present Convention.44
With the recognition that the family plays an essential role in the life of a child, the succeeding
sections of the chapter carefully look at the socio-legal understandings of the Philippine family
and how these effectively construct a particular status and identity for children. Not only do
such constructions define the place of the child within the family but they also shape the
experience of being a child in the family. As Ncube stresses, the family constructs the norms
and values which define its conception of childhood and its entitlements and obligations.45
The immediately succeeding section looks at how the preferential status accorded by the
Philippine legal system to the family has been translated to a familial right characterized by a
structure of influence and obligations. Informed largely by the dominant paradigm, this view of
the family utilizes a model of parental authority where the adult exercises control over the child.
Thus, the child is constructed as a passive recipient of this adult influence.
III. THE DOMINANT PARADIGM AND THE PHILIPPINE FAMILY:
THE RHETORIC OF PARENTAL AUTHORITY
In the Philippines, the family occupies an almost sacred social position. The law is very explicit
in its esteem for the family. In its Declaration of Policies and Principles, the 1987 Philippine
44

UNCRC, supra note 40, art. 5. See United Nations Committee on the Rights of the Child, General Comment No.
12 (2009) The Right of the Child to be Heard, CRC/C/GC/12, 51st Sess (2009) at 21, par. 91. The Committee reasserts that: The Convention recognizes the rights and responsibilities of parents, or other legal guardians, to
provide appropriate direction and guidance to their childrenbut underlines that this is to enable the child to
exercise his or her rights and requires that direction and guidance are undertaken in a manner consistent with the
evolving capacities of the child.
45
Welshman Ncube, The African Cultural Fingerprint? The Changing Concept of Childhood in Welshman
Ncube, ed, Law, Culture, Tradition and Childrens Rights in Eastern and Southern Africa (Brookfield, Vermont:
Ashgate, 1998) at 13.

47
Constitution46 enshrines the sanctity of family life and enjoins its protection and strengthening
as a basic autonomous social institution.47 It also provides: The State recognizes the Filipino
family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively
promote its total development.48
More emphatically, the supreme law of the land devotes an entire separate article to the
family,49 according it the same stature as the national territory,50 the Bill of Rights51 and the
three branches of government,52 among others. This move to enshrine the provisions relating to
the family in a separate article highlights the importance given to the family in Philippine
society. Supporting this constitutional mandate, the Family Code of the Philippines53 which took
effect in 1988 asserts:
The family, being the foundation of the nation, is a basic social institution which
public policy cherishes and protects. Consequently, family relations are governed
by law and no custom, practice or agreement destructive of the family shall be
recognized or given effect.54
These legal provisions are reinforced by the strong social recognition that the family is
perceived to be a very important aspect of the Filipinos life as happiness is closely tied to a
satisfying family situation.55
46

The 1987 Constitution of the Republic of the Philippines [Constitution]. The 1987 Philippine Constitution was
approved by a 1986 Constitutional Commission. It was later ratified and proclaimed in force in February 1987. This
Constitution comes after a bloodless Peoples Power revolution in February 1986 where the then-President
Ferdinand Marcos was ousted from the presidency. The Constitution prior to the 1987 Constitution was the 1973
Constitution although there was an interim 1986 Freedom Constitution promulgated immediately after the 1986
revolution by the then newly-installed President Corazon Aquino.
47
Ibid, art. II, s. 12.
48
Ibid, art. XV, s. 1.
49
Ibid, art. XV (entitled The Family).
50
Ibid, art. I (entitled National Territory).
51
Ibid, art. III (entitled Bill of Rights).
52
Ibid, arts. VI, VII, VIII (entitled Legislative, Executive and Judicial Department respectively).
53
Executive Order No. 209 (1988) The Family Code of the Philippines [Family Code]. The Family Code was
enacted through Executive Order by then President Corazon Aquino and took effect on August 3, 1988. It was
enacted primarily to govern family law in the country. Through its enactment, it amended (but where there is no
inconsistency, it supplemented) provisions of the Civil Code of 1950 and the Child and Youth Welfare Code of
1975 specifically relating to the family including marriage, property relations, children and other areas relating to
the law on family.
54
Ibid, art. 149.
55
Michelle Ong, The Role of the Family in Philippine Society and in the Protection of Childrens Rights online:
Child
Protection
in
the
Philippines:
Philippine
Resource
Network
<http://www.childprotection.org.ph/monthlyfeatures/archives/jun2k1b.html>. In fact, in a 2007 survey conducted
by the National Statistical Coordination Board, it was revealed that the family is the most important source of
happiness for Filipinos. The family is clearly the number one source of happiness among Filipinos, with a score of

48

In articulating the family, the married couple is highlighted to a large extent because according
to the legal system, at the core of the family lies the inviolable social institution of marriage.56
In fact, in the drafting of the Constitution, it was observed that family life is premised on
married life.57 Consequently, it now provides that: Marriage, as an inviolable social
institution, is the foundation of the family and shall be protected by the State.58 This legal
union determines a whole gamut of status and identity including those of children born within
and out of marriages.59
Because of the preferential status accorded to the family by the legal system, it has been
distinguished as an institution conferred with its own rights. As a protected institution, there is
an understanding that the rights of the members of the family, specifically children, are to be
protected through this familial right. Thus, in the proceedings of the drafting of the Constitution,
there was an acknowledgment of the common understanding that: Differentiating families from
people [in turn, children] is making a mockery of the [Philippine] Constitution.60
One of the main reasons why the family has been accorded this favored status is embodied in
the deeply entrenched belief the future of humanity passes by way of the family.61 This way,
the Philippine legal system acknowledges the socialization role of the family toward the child.
The Constitution refers to this as the natural and primary right and duty of parents in the
9.45 out of 10; health the second most important source, with a score of 8.95 and followed by religion with 8.59.
Politics is the least important, scoring only 5.84. Dr. Romulo Virola, How Happy are Pinoys with Sex? online:
National
Statistical
Coordination
Board<http://www.nscb.gov.ph/headlines/StatsSpeak/2007/100807_rav_happiness2.asp>.
56
The Family Code, supra note 53, art. 1 defines marriage as:
A special contract of permanent union between a man and a woman entered into in accordance with
the law for the establishment of conjugal and family life. It is the foundation of the family and an
inviolable social institution whose nature, consequences, and incidents are governed by law and not
subject to stipulation, except that marriage settlements may fix the property relations during the
marriage within the limits provided by this Code.
57
Journal of the Constitutional Commission of 1986, vol. 3, September 19, 1986 at 1460 [Journal of the
Constitutional Commission].
58
Constitution, supra note 46, art. XV, s. 2.
59
Philippine laws still recognize two types of natural filiation, these are legitimate and illegitimate children.
Children conceived or born during the marriage of the parents are legitimate while those conceived and born
outside a valid marriage are illegitimate. The greatest and preferential sum of rights is given to legitimate children.
The distinction has brought about much discrimination against illegitimate children who are stigmatized as
bastards. This comes with the conception that an illegitimate child is spurious, irregular, inferior, or of
questionable origin.
60
Journal of the Constitutional Commission, supra note 57 at 1357.
61
Bernas, supra note 8.

49
rearing of the youth for civic efficiency and the development of moral character.62 In its basic
legal framework of children and childhood as embodied in the Child and Youth Welfare Code,63
the law provides:
The molding of the character of the child starts at the home. Consequently, every
member of the family should strive to make the home a wholesome and
harmonious place as its atmosphere and conditions will greatly influence the
childs development.
Attachment to the home and strong family ties should be encouraged but not to the
extent of making the home isolated and exclusive and unconcerned with the
interests of the community and the country.
The natural right and duty of parents in the rearing of the child for civic efficiency
should receive the aid and support of the government.
Other institutions, like the school, the church, the guild, and the community in
general, should assist the home and the State in the endeavor to prepare the child
for the responsibilities of adulthood (emphasis added).64
As recognized by law, the home plays a central role in raising children and prepar[ing them]
for the responsibilities of adulthood.65 The task of raising children, in fact, falls squarely on the
parents thus the language: the natural right and duty of parent in the rearing of the child.66
This function of parents is articulated in law by the legal norm of parental authority derived
from the Roman law concept of patria potestas.67 Significantly, parental authority shapes much
of the identity and status of children. For example, unlike the UNCRC which defines a child
simply as every human being below the age of 18 years,68 Philippine law does not merely rely
on the age of majority. The law provides a definition of children by referring to the condition of
emancipation in relation to parental authority.69 Thus, in the eyes of the law, a child is
62

Constitution, supra note 46, art. 2, s. 12.


Presidential Decree No. 603 (1974) The Child and Youth Welfare Code [Child and Youth Welfare Code]. The
Child and Youth Welfare Code was enacted through presidential decree by then President Ferdinand Marcos. It was
signed in December 1974 and became effective in June 1975. At the time of its enactment, the Philippines was
under Martial Law having been declared by the president on September 21, 1972. The Decree codifies laws on
rights and responsibilities of children and parents as well as substantive and procedural provisions on children with
respect to the Home, Church, Community, Samahan [an association of workers], Education and the State.
64
Ibid, art. 1.
65
Ibid.
66
Ibid.
67
See Ruben Balane, Spanish Antecedents to the Philippines Civil Code (Quezon City: UP Law Center, 1979).
68
UNCRC, supra note 40, art. 1.
69
Republic Act No. 6809 (1989) An Act Lowering the Age of Majority from Twenty-One to Eighteen Years
Amending for the Purpose Exec. Order No. 209, and for Other Purposes.
63

50
unemancipated and is released only upon the attainment of majority i.e. 18 years of age where
emancipationterminate[s] parental authority over the person and property of the child who
shall then be qualified and responsible for all acts of civil life.70
The concept of parental authority is defined as the juridical institution whereby parents
rightfully assume control and protection of their unemancipated children to the extent required
by the latters needs.71 According to the Family Code, such authority and responsibility is
pursuant to the natural right and duty of parents over the person and property of their
unemancipated children72 and shall include the caring for and rearing them for civic
consciousness and efficiency and the development of their moral, mental and physical character
and well-being.73 As such, the law clearly acknowledges that the socialization role of the
family towards the child is undertaken by parents through parental authority. Expounding on
this role of parental authority in the socialization of children, the law lays down the particular
tasks of parents with regard to their children. The Child and Youth Welfare Code provides:
Art. 46. General Duties Parents shall have the following general duties toward
their children:
1. To give him affection, companionship and understanding;
2. To extend to him the benefits of moral guidance, self-discipline and religious
instruction;
3. To supervise his activities, including his recreation;
4. To inculcate in him the value of industry, thrift and self-reliance;
5. To stimulate his interest in civic affairs, teach him the duties of citizenship, and
develop his commitment to his country;
6. To advise him properly on any matter affecting his development and well-being;
7. To always set a good example;
8. To provide him with adequate support; and
9. To administer his property, if any, according to his best interests.74
The Family Code later on essentially reiterates these tasks of parents as an exercise of parental
authority in the socialization of their children. It provides:
Art. 220. The parents and those exercising parental authority shall have with
respect to their unemancipated children or wards the following rights and duties:
70

Ibid, s. 3.
Santos, Sr. v. Court of Appeals, et al., G.R. No. 113054, March 16, 1995.
72
Family Code, supra note 53, art. 209.
73
Ibid.
74
Child and Youth Welfare Code, supra note 63, art. 46.
71

51
(1) To keep them in their company, to support, educate and instruct them by right
precept and good example, and to provide for their upbringing in keeping with
their means;
(2) To give them love and affection, advice and counsel, companionship and
understanding;
(3) To provide them with moral and spiritual guidance, inculcate in them honesty,
integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in
civic affairs, and inspire in them compliance with the duties of citizenship;
(4) To enhance, protect, preserve and maintain their physical and mental health at
all times;
(5) To furnish them with good and wholesome educational materials, supervise
their activities, recreation and association with others, protect them from bad
company, and prevent them from acquiring habits detrimental to their health,
studies and morals;
(6) To represent them in all matters affecting their interests;
(7) To demand from them respect and obedience;
(8) To impose discipline on them as may be required under the circumstances; and
(9) To perform such other duties as are imposed by law upon parents and
guardians.75
Echoing the characterization of children by traditional family socialization, the concept of
parental authority in Philippine law also sees children simply as the passive recipients of this
socializing task of parents who are entitled to control their children and keep them in their
company.76 This authority granted by law to parents is characterized as having for its purpose
[childrens] physical development, the cultivation of their intelligence, and the development of
their intellectual and sensitive faculties.77 In fact, it represents the right of the parents to do
almost everythingfor the sake of their children.78
Typical of the traditional understanding of the family socialization where the focus is on the
adults and children are merely the passive recipients of this familial influence, even early
Spanish documents that became the basis of 16th century Philippine laws and policies on the
family, in fact, refer to children only in relation to how parents should bring them up.79
75

Family Code, supra note 53, art. 220.


Reyes, et al. v. Mother Superior of the Beaterio dela Compaia de Jesus, et al., G.R. No. L-3957, October 3,
1907.
77
Ibid.
78
Journal of the Constitutional Commission, supra note 57 at 1454.
79
Samuel Parsons Scott, Las Siete Partidas (Chicago: Commerce Clearing House, Inc., 1931) at 972. Title XIX,
Law I of the Las Siete Partidas provides: Nurture is one of the most important good actions which one person can
perform for another, because every man is induced to do this through the great affection which he entertains toward
the child whom he brings up, whether the latter is his own, or that of a stranger. This nurture has great force, and
especially that which a father gives his child, for although he may have natural love for it, because it was begotten
76

52

Clearly, parental authority imposes a heavy obligation on parents to provide for their children.
Because parents know what is best for their children, norms dictate that the authority of parents
should remain respected and unquestioned. This norm is based on the belief that children are
immature and thus do not know what is good for them.80 It is also a common belief that adults
know more than the children because they are older and they have had more experiences.
Children, on the other hand, are ignorant because they are young. Parents tend to say: Bata
ka pa. Wala ka pang alam (You are still young. You know nothing yet).81 A 2001 study in the
Philippines describes the power relations between adults and children in this manner:
The belief that children are not competent persons makes it difficult for adults to
consider children as equals. This unequal power relation makes it harder for
children to exercise their rights to participate. This power relation backs the notion
that rights are given and that adults hold the right to bestow these on children.
Although the State recognizes childrens rights and mandates all to uphold these, in
the context of family, the parents still have the authority to bestow these rights as
they see fit. In most cases, parents provide only the rights to survival and
development. Sadly, participation rights are not considered as important due to the
belief that children are vulnerable.82
The unemancipated status of a child defined by law finds justification in traditional social
definitions that construct them as passive, dependent and vulnerable.83 Thus, Ong finds in her
study that from the perspective of adults:
Children [are] walang-isip, walang-alam, walang-malay (mindless, knownothings, innocent). The child is weak and therefore needs protection. He cannot
fend for himself, and so childhood is seen as an extended period of dependency
prior to adulthood when one can start earning for oneself and ones family. He is
also born tabularasa --- without knowledge, without goals, and without morals.84
These conceptions of the child are very much reflective of the dominant paradigm of children
by him, his affection for it increases much more by reason of the nurture which he affords it; and the child is also
bound the more to love and obey its father, because he was willing to endure the trouble of bringing it up, rather
than commit it to someone else.
80
Elizabeth Protacio, Ma. Teresa dela Cruz, Faye Balanon, Jay Yacat and Carolina Francisco, Trust and Power:
Child Abuse in the Eyes of the Child and the Parent (Manila: Save the Children UK and the United Nations
Childrens Fund, 2001).
81
Council for the Welfare of Children and UNICEF, The National Framework for Childrens Participation: A
Guide in Promoting and Upholding Childrens Participation in the Philippines online: UNICEF
<http://www.unicef.org/philippines/downloads/framework.pdf>.
82
Protacio, et al., supra note 80 at 101.
83
Ong, supra, note 55.
84
Ibid.

53
and childhood. Passivity, dependence and vulnerability represent the traits that children have
which make them different85 from adults. Such difference then becomes the basis for labeling
children as incompetents who need adults primarily parents to take responsibility for the
child, for his survival, for his physical and mental growth, for his eventual adaptation to
community standards.86 In this sense, adults monopolize the determination of what is in the
best interests of the child under the guise that childhood by its definition makes the child illsuited to make rational, reasonable and wise decisions about his or her life and interests.87
Adults, especially parents, look at children as incomplete persons because they lack certain
faculties necessary to be considered adult.88 Therefore children are weak and vulnerable and
need a great deal of protection and guidance from adults. They are encouraged to be dependent
on their parents. A child does not become an adult until taught or trained to become one.
Childhood is therefore a preparation for adulthood and parenting is thus understood as the
process of shaping children to become proper adults.89 The role of the family then, especially
the parents, is to mold the child into a socially responsible adult.
In addition to the statutory rights and duties of parents over their children, the courts have also
described the scope of parental authority as including the rearing and caring for children with
85

See Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (New York: Cornell
University Press, 1990) who argues that we must think seriously about difference otherwise its meanings will
operate without examination or justification. At 376-377 she writes: The perspective of those who are labeled
different may offer an important challenge to those who imposed the label, but it is a correlative lens, another
partial view, not the absolute truth. It is the complexity of our reciprocal realities and the conflict between our
realities that constitute us which we need to understand. Shifting perspectives exposes how a difference depends
on a relationship, a comparison drawn between people with reference to a norm. And making this reference point
explicit opens up the debate. Maybe the reference point itself should change.Changing the ways we classify,
evaluate, reward and punish may make the differences we had noticed less significant, irrelevant or even a strength.
The way things are is not the only way things could be. By aligning ourselves with the different person, for
example, we could make difference mean something new; we could make all the difference.
86
Joseph Goldstein, Anna Freud and Albert Solnit, Beyond the Best Interests of the Child (New York: The Free
Press, 1973) at 9.
87
Ncube, supra note 45 at 17. See also Ann Oakley, Women and Children First and Last: Parallels and
Differences between Childrens and Womens Studies in Berry Mayall, ed, Childrens Childhoods Observed and
Experienced (London: The Falmer Press, 1994) who compares children with women as vulnerable members of
society. At 16 Oakley observes: The welfare of women and children are based not on asking them what they want
or need, but on what other people consider to be the case. It is a philosophy of exclusion and control dressed up as
protection, and dependent on the notion that those who are protected must be so because they are deemed incapable
of looking after themselves.
88
Elizabeth Protacio-de Castro, Negotiating Trust and Power: Parenting in the Context of Conflict Resolution
online:
Child
Protection
in
the
Philippines:
Philippine
Resource
Network
<http://www.childprotection.org.ph/monthlyfeatures/archives/mar2k5b.html>.
89
Ibid.

54
the right to the childs services and earnings, and the right to direct his activities and make
decisions regarding his care and control, education, health and religion.90 Thus, it is clear that
the rights and duties of parents extend to the whole plethora of the childs personality.91
Entrenched in all these constructions of the child brought about by the legal concept of parental
authority is an understanding that the child is simply the result of age and a particular stage of
development.92 Parental authority accomplishes its goal of socialization because any
unemancipated child within the family is wholly dependent on the parents and must therefore
always observe respect and reverence towards [the] parents andobey them as long as the
[child is] under parental authority.93 Thus, the law relies heavily on notions of levels of

90

Cang v. Court of Appeals, et al., G.R. No. 105308, September 25, 1998. See also Dissenting Opinion of Justice
Makasiar in Luna v. Intermediate Appellate Court, G.R. No. L-68374, June 18, 1985.
91
Journal of the Constitutional Commission, supra note 57 at 1358. In relation to this, the law provides that
parental authority may not be renounced or transferred except in cases authorized by law. There are two types of
termination of parental authority: permanent and non-permanent. Permanent termination occurs upon death of the
parents; death of the child or; emancipation of the child (Family Code, supra note 53, art. 228). Non-permanent
termination of parental authority occurs upon adoption of the child; appointment of a general guardian; judicial
declaration of abandonment of the child in a case filed for the purpose; final judgment of a competent court
divesting the party concerned of parental authority; or judicial declaration of absence or incapacity of the person
exercising parental authority (Family Code, supra note 53, art. 228). In these cases, the termination is nonpermanent as parental authority can be revived by court order. The revival is allowed because these are events
without the fault of the parents or with the fault of the parents but without malice. (Minutes of the 135th Meeting of
the Civil Code and Family Law Committees, March 22, 1986, 9). Short of termination of parental authority, the law
also provides for instances where it can merely be suspended (Family Code, supra note 53, art. 230-231). These
instances include: 1) conviction of a crime which carries with it the penalty of civil interdiction (Art. 34 of the
Revised Penal Code states that civil interdiction shall deprive the offender during the time of his sentence of the
rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of
the right to manage his property and of the right to dispose of such property by any act or any conveyance inter
vivos); 2) treating the child with excessive harshness or cruelty; 3) giving the child corrupting orders, counsel or
examples; 4) compelling the child to beg; 5) subjecting the child or allowing her to be subjected to acts of
lasciviousness; and 6) cases which have resulted from culpable negligence. The law gives the courts some
discretion to deprive the guilty party of parental authority or adopt other measures as may be proper under the
circumstances depending on the degree of seriousness or whether the welfare of the child so demands (Family
Code, supra note 53, art. 231, par. 3). Also, the suspension, deprivation or revival of parental authority depends on
whether the courts find that the cause therefore has ceased and will not be repeated (Family Code, supra note 53,
art. 231, par. 4).
92
On the part of parents, parental authority attaches to the biological status of both the father and the mother. In
case of disagreement between the spouses, the fathers decision prevails. The mothers recourse is to get a judicial
order contrary to the fathers decision (Family Code, supra note 53, art. 211). Further pursuing paternal preference,
the law is replete with references to the preferential authority of the father. In the administration of the property of
the children, the fathers decision will prevail in case of disagreement with the mother with whom the father shares
joint legal guardianship (Family Code, supra note 53, art. 225). In cases of persons between the ages of 18 and 21
who are to contract marriage, consent to their marriage must be obtained from their father, mother, surviving parent
or guardian or persons having legal charge of them, in that order (Family Code, supra note 53, art. 14). Also, the
responsibility for the quasi-delicts (tort) of the child is still vested in the father and only in case of his death or
incapacity does it devolve upon the mother (Family Code, supra note 53, art. 2180).
93
Family Code, supra note 53, art. 211, par. 2.

55
growth94 and phases of development95 to ensure the childs fullest, healthy and normal
development.96 To this end, the law through its sanctioning of parental authority reduces the
lives of children within the family to a universal experience of childhood. Such homogenization
is demonstrated by the laws uniform prescription for parents in dealing with children on such
diverse matters as: winning the childs confidence;97 discovering the childs talents;98 cultivating
reading habit;99 and preventing the child from falling into bad company by supervising
association with other children,100 community activities,101 social gatherings102 and vices.103
IV. A RE-IMAGINING OF THE PHILIPPINE FAMILY AS THE BASIS OF THE EMERGING PARADIGM:
THE PARTICIPATION OF CHILDREN IN THE FAMILIAL NETWORK OF RELATIONSHIPS

94

Child and Youth Welfare Code, supra note 63, art. 9 on levels of growth provides:
The child shall be given adequate care, assistance and guidance through his various levels of growth,
from infancy to early and later childhood, to puberty and adolescence, and when necessary even
after he shall have attained age 21.
95
Ibid, art. 10 on phases of development provides:
The child shall enjoy special protection and shall be given opportunities and facilities, by law and by
other means, to ensure and enable his fullest development physically, mentally, emotionally,
morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and
dignity appropriate to the corresponding developmental stage.
96
Ibid.
97
Ibid, art. 48 on winning the childs confidence provides:
Parents shall endeavor to win the childs confidence and to encourage him to conduct with them on
his activities and problems.
98
Ibid, art. 50 on special talents provides:
Parents shall endeavor to discover the childs talents or aptitudes, if any, and to encourage and
develop them. If the child is especially gifted, his parents shall report this fact to the National Center
for Gifted Children or to other agencies concerned so that official assistance or recognition may be
extended to him.
99
Ibid, art. 51 on reading habit provides:
The reading habit should be cultivated in the home. Parents shall, whenever possible, provide the
child with good and wholesome reading material, taking into consideration his age and emotional
development. They shall guard against the introduction in the home of pornographic and other
unwholesome publications.
100
Ibid, art. 52 on association with other children provides:
Parents shall encourage the child to associate with other children of his own age with whom he can
develop common interests of useful and salutary nature. It shall be their duty to know the childs
friends and their activities and to prevent him from falling into bad company. The child should not
be allowed to stay out late at night to the detriment of his health, studies or morals.
101
Ibid, art. 53 on community activities provides:
Parents shall give the child every opportunity to form or join social, cultural, educational,
recreational, civic or religious organizations or movements and other useful community activities.
102
Ibid, art. 54 on social gatherings provides:
When a party or gathering is held, the parents or a responsible person should be present to supervise
the same.
103
Ibid, art. 55 on vices provides:
Parents shall take special care to prevent the child from becoming addicted to intoxicating drinks,
narcotic drugs, smoking, gambling, and other vices or harmful practices.

56
Given the current understandings of the family explored in the previous section, this section
now tries to go beyond such notions by doing a careful scrutiny of the foundational basis of the
Philippine family. It re-imagines the family as a network of relationships based on an
indigenous relational framework that provides context for the emerging paradigm. With a
reconceived notion of the nature of the family, this section demonstrates the role of children and
the value of their engagements within the family reconstructing them as active participants
within this familial network of relations.
The Filipino family is known as the mag-anak. The expression mag-anak clearly signifies the
importance of the role of a child in the family because anak is the Filipino term for child.
What this means is that Filipino tradition dictates that a married couple (mag-asawa) only
becomes a family with the birth of a child.104 Jocano explains:
In all sectors of Philippine society, the child is much desired, wanted and enjoyed.
The orientation appears to have been deeply engrained in the Filipino cultural
psyche such that it is almost a natural thing to want a child. Many consider it
morally wrong not to want a child when one is married. To have a child or children
is the dream of married couples.105
Coupled with this social significance attached to the child is the legal recognition that the child
is endowed with the dignity and worth of a human being from the moment of his
conception.106 Within the Philippine value system, dignity and human worth find context in the
indigenous principle of dangal which embodies the moral imperatives of the core value
system107 that is used to characterize identity, pride and commitment toprinciplesand
people.108 From these fundamental understandings of the child, the intrinsic quality and
meaning of actions of the child and towards the child take on a significant legal, social and
moral value.
Given the acknowledgment of the value of children by themselves and within the family, there
is the possibility of reconceiving the family and the socialization that occurs within it. As
104

Ong, supra, note 55.


Felipe Landa Jocano, Filipino Social Organization: Traditional Kinship and Family Organization (Metro
Manila, Philippines: Punlad Research House, 1998) at 77-78.
106
Child and Youth Welfare Code, supra note 70, art. 3, par. 1.
107
Felipe Landa Jocano, Notion of Value in Filipino Culture: The Concept of Pamantayan Punlad Research Paper
No. 2 Series on Filipino Values (Quezon City, Philippines: Punlad Research House, 1992) at 16.
108
Ibid.
105

57
Giddens writes:
The unfolding of childhood is not time elapsing just for the child: it is time
elapsing for its parental figures, and for all other members of society; the
socialisation involved is not simply that of the child, but of the parents and others
with whom the child is in contact, and whose conduct is influenced by the child
just as the latters is by theirs in the continuity of interaction.109
Mayall reformulates the socialization of the family as interactive encounters.110
Contextualized within the Philippines, such socialization is understood as a system of deep and
profound sharing of identities embodied in the relational philosophy of pakikipagkapwa.111 An
opportunity to recognize the identity and the personhood of the child within the family is to
locate such child within this context of relationships. Seen in this manner, the child is described
as an important participant in the social structure of kinship. This reveals the childs active role
within the family.
Fundamentally, the overall conception of the family highlighting relationships is described by
the sponsorship speech made during the introduction of the provision of The Family in the
Constitution:
We have risen to the rights of the individual, of women, of children. The rights of
the person, however, have a fundamental social dimension in the institution of the
family. The family as a natural society exists prior to the State or any other
community. Thusthe future of humanity passes by way of the family.
We Filipinos are truly a family-centered culture and this is one of our real
strengths as a nation. We are poor in many ways but not in our instinctive love and
commitment to family life. Our core family values may yet prove to be our greatest
contribution to the rest of the contemporary world where family life has
continually been eroding.
The typical Filipino couples major concern is their children, their childrens
welfare, education and their future. In turn, their children care for their elderly
parents in personal and sacrificing ways that are increasingly disappearing in many
contemporary cultures. Such a deeply human family system as ours deserves to be
enhanced and preserved not only for the sake of our own country but even for the
sake of the rest of the world. It deserves the fullest support and protection from the
109

Anthony Giddens, Central Problems in Social Theory: Action, Structure and Contradiction in Social Analysis
(Berkeley: University of California Press, 1979) at 139.
110
Mayall, supra note 29 at 118.
111
Understood within the Philippine value system, pakikipagkapwa involves a sharing of ones self thus it
embodies much more than mere interaction. This concept will be discussed in detail in the last part of this section.

58
State. Without such protection and support, we may inevitably capitulate to the
powerful forces from without and witness the gradual collapse of our Filipino
family system (emphasis added).112
The framework of the family, stressing a fundamental social dimension, validates the notion
that relationships are very important to Filipinos. From the moment of birth, a persons life is
intimately connected to the network of kin. Culturally, the basic units of Philippine society are
the nuclear family, consisting of the husband, wife, and children and the bilaterally extended
families of both the husband and the wife.113 This leads anthropologists to define the Filipino
kinship system as bilateral. Jocano writes:
[T]wo lateral groups of individuals, related or not, are brought together, by virtue
of the marriage of their kin. When a child or children are born, the relation is
shifted from affinal to consanguineal, with the child or children as the point of
reference.114
This social structure of relationships signifies that the Filipino recognizes a network of kinship.
The kinship structure, known as the magkakamag-anak,115 serves as the point of reference in
identifying persons as kin or non-kin, in tracing descent from an ancestor or group of ancestors,
in defining the range and limit of relations, and in establishing quasi-kin relations.116 As proof
of the expansive relationships recognized by Filipinos, kinship may, in fact, be consanguineal,117
affinal or compadrazgo.118
Blood ties are the first source of kinship. Because the connection in this case can be traced to the
blood (nasa dugo), children are conceived to be related not only to the mother and father but
112

Bernas, supra note 8 at 1128-1129.


Belen TG Medina, The Filipino Family: A Text with Selected Readings, (Diliman, Quezon City: University of
the Philippines Press, 1991) at 35.
114
Jocano, supra note 105 at 21.
115
It should be noted that even this network of kinship referred to as magkakamag-anak still includes the term
anak in it, which means child. Again, this signifies how in the structure of kinship, the child remains at the
nucleus.
116
Ibid.
117
The significance afforded to bloodlines is part of the reason why civil law provisions point to an obvious bias
against illegitimacy. In the case of Maria Jeanette C. Tecson, et al v. The Commission on Elections, et al, G.R. No
161434, March 3, 2004, the Philippine Supreme Court through J. Vitug explained: The discriminatory attitude
may be traced to the Spanish family and property laws, which, while defining proprietary and successional rights of
members of the family, provided distinctions in the rights of legitimate and illegitimate children. In the monarchial
set-up of old Spain, the distribution and inheritance of titles and wealth were strictly according to bloodlines and
the concern to keep these bloodlines uncontaminated by foreign blood was paramount.
118
A Spanish term which denotes close friendship usually occurring as a result of a religious ritual which connects
one person to another.
113

59
also to the relatives of both. This is one of the reasons why links with distant cousins, aunts and
uncles are recognized.119 Affinal relations, meanwhile, are given the stamp of permanency as
well. Not surprisingly, the law does not allow for divorce,120 trying to keep a husband and wife
together.
The law validates these family relations by combining consanguineal and affinal networks held
by the people. Thus the law provides that family relations include those between husband and
wife; between parents and children; among other ascendants and descendants; and among
brothers and sisters, whether of the full or half-blood.121
A third source of kinship is equally important in Philippine society, the compadrazgo. Religious
rituals (e.g. weddings, baptisms, confirmations) create these ties where a godfather (ninong) or
godmother (ninang) is chosen to function as a second parent to the godchild (inaanak). Jocano
describes this relationship:
The godparents are expected to help in the upbringing and education of the
godchild and to assist him in time of need. In turn, the child is expected to help his
godparents when they need his assistance. He has to obey and respect them as
though they were his real parents.122
What is formalized in the rite is the moral obligation to assist in times of crisis.
This obligation is part of the expectations of those involved in the relationship.123
Entrenched within this deep and complex system of relationships is the child who is the point of
reference in identifying affinal, consanguineal and compadrazgo relations. A clear case in point,
two angkan124 that of the mothers and the fathers merge into one in the generation of the
child. This shows that the child is not only the bridge between and among generations but is also
the tie that binds relations.

119

This is also part of the reason why marriages between collateral blood relatives, whether legitimate or
illegitimate, up to the fourth civil degree are prohibited by public policy. Family Code, supra note 53, art. 38.
120
Although technically the law does not allow for divorce, the Family Code, supra note 53, art. 36 provides for a
ground for the declaration of absolute nullity of a marriage where one of the parties to the marriage is
psychologically incapacitated to comply with the essential marital obligations of marriage. This ground is based on
Canon law.
121
Family Code, supra note 53, art. 150.
122
Jocano, supra note 105 at 44.
123
Ibid at 45.
124
A group of related families from which descent is traced.

60
Furthermore, within the framework of familial relationships, the child also provides these
significant functions:
1) The child is a source of happiness (Ang anak ay kaligayahan)125
2) A child is an evidence of love (Ang anak ay katibayan ng pagmamahal)126
3) The child is a gift of God (Ang anak ay biyaya ng Diyos)127
4) Children are necessary in order to maintain the family lineage (Ang mga anak ay
kailangan upang mapanatili ang angkan)128
From these functions, it is discernible that the child is the link between the network of
relationships considered vital within the social context. With the first and second functions, the
child stands as the strength of the family establishing interdependency and solidarity among the
members. The third and fourth functions see the child as the fundamental connection between
the family and two critical aspects of existence: spirituality and ancestry.
It is not surprising then that the law encourages attachment to the home and strong family
ties.129 Children are supported to strongly identify with the family. Respect and strong
interpersonal relations with neighbors and kinsmen are valued. Children are also expected to be
industrious and to strive in order to achieve and improve their economic condition. They are
expected to help in all family activities whenever they are not in school.130 Seen from an
interdependency perspective, the child is intimately connected to the members of the family
within the context of deeply entrenched relationships. What this means for the child is that the
child is considered an essential part of an intimately connected network of relationships.
Without the child, there is a break in the link of social interactions.
Harmony within the family unit is primordial.131 Accordingly, before a person can file a suit
against another belonging to the same family, earnest efforts must first be made to settle the case

125

Jocano, supra note 105 at 80.


Ibid at 84.
127
Ibid at 82.
128
Ibid at 86.
129
Child and Youth Welfare Code, supra note 63, art. 1, par. 4.
130
Medina, supra note 113 at 200-201.
131
In this regard, Act No. 3815 (1930) An Act Revising the Penal Code and other Penal Laws, art. 15 [Revised
Penal Code] recognizes relationship as an alternative circumstance which shall be taken into consideration when the
offended party is the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by
affinity in the same degrees of the offender.
126

61
amicably; otherwise, the suit is dismissible.132 Maintaining the image of an ideal united family,
the drafters of the law commented:
It is difficult to imagine a sadder and more tragic spectacle than a litigation
between members of the family. It is necessary that every effort should be made
toward a compromise before a litigation is allowed to breed hate and passion in the
family. It is known that a lawsuit between close relatives generates deeper
bitterness than strangers.133
But more than what the law explicitly states is the essence of these relations. Although the law
seems to simply decree an avoidance of conflict, what the law actually represents is described
by Enriquez as the collective values shared with the whole humanity and the deep respect for
the dignity and inherent worth of a fellow human being.134
Family pride is a very strong incentive for unity.135 This is embodied in the phrase di ka na iba
sa akin which literally translates to you are no different from who I am. The concept of unity
in Philippine society has an even more profound significance when seen through the perspective
of interconnectedness. One will find the philosophy of kapwa in the core of Philippine
relationships. Enriquez keenly observes:
When asked for the closest English equivalent of kapwa, one word that comes to
mind is the English word others. However, the Filipino word kapwa is very
different from the English word others. In Filipino, kapwa is the unity of the
self and others. The English others is actually used in opposition to the
self, and implies the recognition of the self as a separate identity. In contrast,
kapwa is a recognition of shared identity, an inner self shared with others.136
This unity of the self with others serves as the basis for all relationships, especially those
within the family. What this implies is that relationships do not merely involve dealing with the
132

Republic Act No. 386 (1950) Civil Code of the Philippines, art. 2035 [Civil Code] mandates that this is not
absolute as no compromise upon the following questions shall be valid: 1) the civil status of persons; 2) the validity
of a marriage or a legal separation; 3) any ground for legal separation; 4) future support; 5) the jurisdiction of
courts; 6) future legitime. Additionally, the rule on earnest efforts also does not apply to special proceedings like a
petition for the settlement of estate guardianship and custody of children, and habeas corpus.
133
Melencio Sta. Maria, Jr, Persons and Family Relations Law (Manila: Rex Bookstore, Inc., 2004) at 554 quoting
the Report of the Civil Code Commission at 18.
134
Virgilio Enriquez, From Colonial to Liberation Psychology: The Philippine Experience (Diliman, Quezon City:
University of the Philippines Press, 1992) at 43.
135
Pura Santillan-Castrence, The Role of the Family in the Philippines in Cultures in Encounter: Germany and
the Southeast Asian Nation: A Documentation of the ASEAN Cultural Week Tbingen, Summer 1977 (Stuttgart:
Institut fr Auslandsbeziehungen, 1978) at 131.
136
Enriquez, supra note 134 at 43.

62
other, but rather, it is connecting with ones identity. Kapwa serves two important functions:
1) it describes equality of status and 2) it speaks of a shared orientation. Thus, the kapwa
philosophy can be a powerful legal and moral concept to reconstruct our understanding of the
dynamics of a family and what it means to be a child in that family. Enriquez provides a useful
elaboration of this concept:
Pakikipagkapwa137 as a conviction emanating from a shared inner self does not
simply imply either pakikitungo (amenities), pakikisama (adjusting), or any other
modes and levels of interaction.
Pakikipagkapwa is much deeper and profound in its implications. It also means
accepting and dealing with the other person as an equal.... [T]he Filipino way
demands and implements the idea that they treat one another as fellow human
beings (kapwa-tao). This means a regard for the dignity and being of others.
The complexity of interpersonal relations is recognized in theproverb: Madali
ang maging tao, mahirap ang magpakatao. (It is easy to be born a human, but it is
not as easy to be one).138
V. RE-INTERPRETING LEGAL NORMS

TO

REFLECT

THE

RELATIONAL NATURE

OF THE

FAMILY: RECOGNIZING THE ENGAGEMENTS OF THE CHILD AS PARTICIPATION


This last section does an analysis of specific legal norms involving engagements of the members
of the family that have been interpreted and understood based on the dominant paradigm. These
legal concepts have been typically understood from the adult perspective where they are
interpreted as rights, duties and obligations of parents towards their children. The section
proposes an interpretation of the law that makes use of the relational nature of the family where
the engagements of children are interpreted as responsibilities taken on by them in the intimate
sharing of collective values that define and structure the Philippine family. Such an
interpretation thus recognizes the active participation of children within the familial context.
Clearly, there is a heavy demand on children to live out certain ideals e.g. upright and virtuous
life, love, respect and obedience. Numerous studies have been conducted on what parents desire
from their children and these reveal that the traits of industry, respect (especially for parents and
137

The closest English translation would be relating to others but as explained in the text, this does not accurately
describe the essence of interconnectedness embodied in this relational value. See ibid.
138
Enriquez, supra note 134 at 45.

63
elders), perseverance in studies and kindness are the main expectations from children.139 For
many parents, a disobedient child is a bad child while the good child is obedient and
subservient.140 When these expectations are seen as obligations imposed on children, there is
difficulty in reconciling them with the understanding that children are active participants within
the family. Thus, many see the reality of children in the Philippines as being passive recipients
of adult exigencies. From the moment they are born, children are required to furnish emotional
gratification and provide recognition and respect for their male and female procreators. Children
are then expected to go to school, learn, and be educated. Then as they grow up, children are
obligated to support their parents and other family members. This perspective of obligations
definitely has an impact on the childs status and identity. Ncube, for example, lays out the
effects of internalized and rigorously enforced obedience:
The notion of respect and obedience has implications on the capacity of both the
children to assert their rights and of the families to act as mechanisms for the
defence and promotion of childrens rights. If the traditional family expects
childhood, in its general sense, to be a continuous period of self-effacing
obedience to traditional authority which is often inconsistent with individual
assertion of child rights as defined in international instruments, it is difficult to
imagine how the same family may champion the rights and expectations of
childhood which may not be consistent with its expectations. Furthermore, the
children themselves having been heavily socialized into obedience and respect
are unlikely to see their stage of childhood as a period during which they may
vigorously assert their rights.141
However, when these expectations are seen as responsibilities, they take on a completely
different character. The fact that the law recognizes that children have both rights and
responsibilities is a strong indication that children are not mere passive recipients of rights.
Rather, they can exercise rights and take responsibilities for such actions.142 The law provides
for these responsibilities of the child through the Child and Youth Welfare Code:
Art. 4. Responsibilities of the Child. Every child, regardless of the circumstances
of his birth, sex, religion, social status, political antecedents and other factors shall:

139

Carol Sobritchea, The Ideology of Female Domesticity: Its Impact On the Status of Filipino Women (1990)
Review of Womens Studies 26.
140
Protacio, et al, supra note 80.
141
Ncube, supra note 45 at 19.
142
One of the arguments against according children rights is that they are incapable of taking responsibility for
these rights. Thus, they are relegated to having protection rights which means that they are mere recipients of adult
benevolence.

64
(1) Strive to lead an upright and virtuous life in accordance with the tenets of his
religion, the teachings of his elders and mentors, and the bidding of a clean
conscience;
(2) Love, respect and obey his parents, and cooperate with them in the
strengthening of the family;
(3) Extend to his brothers and sisters his love, thoughtfulness and helpfulness and
endeavor with them to keep the family harmonious and united;
(4) Exert his utmost to develop his potentialities for service, particularly by
undergoing a formal education suited to his abilities, in order that he may become
an asset to himself and to society;
(5) Respect not only his elders but also the customs and traditions of our people,
the memory of our heroes, the duly constituted authorities, the laws of our country,
and the principles and institutions of democracy;
(6) Participate actively in civic affairs and in the promotion of the general welfare,
always bearing in mind that it is the youth who will eventually be called upon to
discharge the responsibility of leadership in shaping the nation's future; and
(7) Help in the observance of individual human rights, the strengthening of
freedom everywhere, the fostering of cooperation among nations in the pursuit of
their common aspirations for programs and prosperity, and the furtherance of
world peace.143
An earlier articulation of these responsibilities of the child was provided for in 1950 through the
Civil Code:144
Art. 357. Every child shall:
(1) Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives, and persons holding substitute parental
authority;
(3) Exert his utmost effort for his education and training;
(4) Cooperate with the family in all matters that make for the good of the same.145
With a reconceptualization of the family coupled with a reconstruction of children and
childhood, these provisions on the responsibilities of the child have the possibility to take on a
legal signification that recognizes and respects their participation within the family. Thus, the
chapter proposes a re-interpretation of these provisions that moves away from the legal norm of
143

Child and Youth Welfare Code, supra note 63, art. 4.


Civil Code, supra note 132. The Civil Code of the Philippines is the codification of private laws in the country.
It was approved in 1949 and took effect on August 30, 1950 and still remains in force today although there have
been amendments and revisions. The Civil Code is the result of the work of a Code Commission that was
constituted a number of times. The final draft of the Code was completed in 1947 and was submitted to Congress.
The Civil Code is very much influenced by the Spanish Civil Code of 1888 which was extended to the Philippines
by royal decree when the country was under Spanish rule. The Civil Code is made up of a Preliminary Title and
four books covering 1) Persons (which includes family relations); 2) Property, Ownership and its Modifications; 3)
Different Modes of Acquiring Ownership; and 4) Obligations and Contracts.
145
Ibid, art. 357.
144

65
parental authority. Instead, the chapter puts forward an interpretation of these responsibilities of
children provided for by law as actual engagements of children that demonstrate their rights,
realities and relationships within the family.
Responsibilities establish children as active participants in the structuring of the family that is
described as a system of relationships. As responsibilities, these expectations become tasks that
children undertake. This underscores their capacities to express their ideas and share in the
choices on matters and events that affect them. Children are thus seen not only as moral agents
possessing the capacity for moral reasoning but also social actors whose dealings and
interactions have consequences. Take for example the childs responsibilities to love, respect,
obey and help parents, brothers and sisters. Seen as responsibilities, the law establishes the
childs connection to ones family which reconstructs our understanding of the dynamics of that
institution. The child then shares a common identity with the other members of the family. This
in turn gives the child the occasion to be recognized as an active partaker within that structure.
True enough, the law recognizes the responsibility of the child to help in the observance of
individual human rights and the strengthening of freedom everywhere.146
Parents, in fact, attribute responsibilities to children in the family:
In many Filipino households, for example, the panganay (firstborn) is expected to
be responsible, level-headed and mature. The bunso (youngest child), on the other
hand, is seen as playful and easy going.
Thus, the panganay or eldest children are usually tasked to take care of their
siblings especially when both parents are working. At a very young age, they are
expected to do certain household chores such as cleaning the house, washing the
dishes and cooking rice. This is especially true if the eldest is a female.147
Thus, it is not uncommon for children to actually exercise authority. Although hierarchical in
nature, older children, whether male or female, are dominant over the younger ones. The eldest
child, in particular, has a quasi-paternal status and has authority including the right to punish the
younger siblings for misbehavior.148 Furthermore, Filipino children are exposed to the rigors of
working and earning a living at an early age. In terms of domestic work, children, especially
146

Child and Youth Welfare Code, supra note 63, art. 4, par. 7.
Protacio, et al, supra note 80 at 105.
148
Medina, supra, note 113 at 24-25.
147

66
girls, are expected to do household chores and act as pseudo-parents to younger siblings. In
terms of earning income, children actively participate in the planting and harvesting of crops,
and in the preparation of foodstuffs for sale and the vending thereof.149 But since the objective
of these activities, according to the adults, is to prepare children to become mature members of
society, the capacities and contributions of children are minimized, if not completely
disregarded.
The childs role in paid and domestic work is a powerful tool to reconceive the childs
capabilities. When parents are not doing the work that they were doing before, the work has not
disappeared as parents would think rather a major part of it has been taken over by the
children themselves.150 If these social and economic contributions are simply recognized as
such, then the tasks of the child are given value. Not only does this re-position the child within
the family but it also attaches importance to such role. The child is then acknowledged as an
active contributor in the creation of a shared identity of the family.
Re-interpreting the law to recognize the responsibilities of children as actual engagements
within the family has far reaching implications on the nature of childrens experiences, the
expectations of adults around them and the opportunity for children to take even greater
responsibility for decisions that affect their lives. Children are caught between a characterization
that on the one hand, they are weak and vulnerable and on the other, that they are active links in
the preservation of interdependencies within familial relations.
Using this responsibility-as-engagement framework to re-interpret the law, the last part of the
section now undertakes to examine specific legal norms within the family that have been
typically understood from the parental perspective. Because of the overarching influence of
parental authority, these concepts are interpreted as rights, duties and obligations of parents
towards their children. Pursued in this manner, the chapter shows that such understanding
validates the dominant perspective of children as passive recipients of adult socialization. This
obscures the childs role within the family, trivializes the childs identity, and forecloses the
149

Felipe Landa Jocano, Social Organization in Three Philippine Villages: An exploration in Rural Anthropology
(Manila: Centro Escolar University, 1988).
150
Anne Solberg, Negotiating Childhood: Changing Constructions of Age for Norwegian Children in Allison
James and Alan Prout, eds, Constructing and Reconstructing Childhood, 2d ed (London: The Falmer Press, 1997)
at 139.

67
possibility of allowing children opportunities to participate. The chapter argues that because the
law has been conflated with the concept of parental authority, children have been relegated to a
peripheral status and identity where their engagement is not recognized. As an alternative, this
section of the chapter proposes a reading of the law that constructs these legal norms as
responsibilities taken on by the child. This, however, does not detract from the eventual
objective of laying down a more definitive legal framework that reformulates our understanding
of the family, socialization and children. Ultimately, the law needs to manifestly recognize the
participation of children within the family. Towards that goal, current legal understandings of
children and their responsibilities must be recast to open up that space for them within the law
and the family. The emerging paradigm allows us that possibility by re-interpreting these
specific legal circumstances, in the words of James and Prout, as strategies of action which
[children] use sometimes effectively, sometimes not as engaged and embedded but also
mobile actors confronting different social settings.151
A. SUPPORT
The law enumerates the family members obliged to support each other. These include the
spouses; legitimate ascendants and descendants; parents and their legitimate and illegitimate
children and further, the legitimate and illegitimate children of these children; and legitimate or
illegitimate brothers and sisters, whether of full or half-blood.152 Support is an essential concept
in the Philippines not only legally but also socially. The legal definition of support stresses its
importance. It comprises everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of the
family.153
The dominant interpretation of this concept is the parental duty to provide the child with
adequate support154 and to provide for the childs upbringing.155 This is coupled with the right of
parents to the childs services and earnings.156 Because parents carry out this obligation
151

James and Prout, supra note 7 at 49.


Family Code, supra note 53, art. 195.
153
Ibid, art. 194.
154
Child and Youth Welfare Code, supra note 63, art. 46, par. 8.
155
Family Code, supra note 53, art. 220, par. 1.
156
Cang v. Court of Appeals, et al., supra note 90.
152

68
towards their children, it is understood that children too are obligated towards their parents.
Children are even said to be indebted to their progenitors. This creates an obligation to
repay what has been bestowed upon them. The arrangement more than compensates for the
lack of an effective social security system in the country. As members of the family age, the
burden on children to care for the older generation will rise in the absence of increases in public
sources of support.157 In a National Demographic Survey, women of reproductive age (15 to 49
years) were asked about their expectations for support in old age.158 More than half expect to
live with one or more children, and more than a third expect to receive financial or material
support from children or relatives.159 This dominant understanding of the system of support rests
on the basic premise that children are investments (ang mga anak ay puhunan).160
However, because support is reciprocal between parents and children, it can also be read as a
recognition of the responsibilities of children not only towards the parents but also towards the
family. Thus, to re-interpret support as a responsibility of the child to the family is to treat it as
an actual engagement of the child that shapes and influences the family. When children take on
the responsibility of support, not only does this acknowledge their right as a vital constituent of
the family but it also recognizes what it means for them to be a member of their family. An
essential part of this experience of children is their engagement in the values of family
identification and reciprocity.161 The legal concept of support actually recognizes the strong
socio-cultural concept of identifying with the family. This implies that one is never really
separate from the family. Responsibility for the members of a family as a shared ideal rests

157

The system of support extends to grandparents as most live their families. Lita Domingo and Maruja Asis,
Living Arrangements and the Flow of Support Between Generations in the Philippines (1995) 10 Journal of
Cross Cultural Gerontology 21 at 23 write: The 1988 National Demographic Survey (NDS) offers some insights
into how the family (as indicated by living arrangements) provides support for the elderly. Only a small minority
of the elderly - 4% - live alone. Data from the survey suggest that the Filipino elderly are part of fairly large
households, with a mean average size of 5.14. An examination of the age structure of elderly households indicates
that 83% of the elderly live with someone aged 15 to 59 (in particular, more elderly live with those aged 15 to 34
than those aged 35 to 59), and close kin are most likely to be the co-residents of the elderly.
158
Ann Biddlecom and Lita Domingo, Aging Trends-The Philippines (1996) 11 Journal of Cross Cultural
Gerontology 109 at 113.
159
Note however that the proportion expecting to rely on family support in old age declines steadily with increasing
education. Over 70% of women with no education expect to live with a child, versus 43% of women with more
than a secondary school education. These data suggest that rising levels of education of succeeding elderly cohorts
may make family support more strongly related to the needs of the elderly and less related to custom.
160
Jocano, supra note 105 at 85.
161
It is common, in fact, that children are given the task of caring for the elderly in the family home. Biddlecom and
Domingo, supra note 158 at 113 assert that retirement homes or nursing homes are uncommon and house a very
small fraction of the elderly population.

69
on the family members themselves. Once a person starts thinking of herself as separate from
kapwa, that person becomes individuated thereby denying her self. As such, the engagement
of children in support is a clear manifestation of the relationships they maintain and establish
within the family. Support is further motivated by the principle of reciprocity that builds on
these important concepts of relationships within the Filipino culture. Bautista explains:
Relationships are very important to a Filipino. Perhaps this is because he has
always lived his life intimately within a group. Early in his life, he learns that he
does not belong to himself alone. He grows comfortably with the idea that
somehow his life infringes on others lives and lives of others affect his as well.162
B. GUARDIANSHIP
A legal concept closely linking parental authority with support is guardianship. It is defined as
a trust relation of the most sacred character, in which one person, called a guardian, acts for
another, called the ward, whom the law regards as incapable of managing his own affairs.163
In keeping with the policy of parental authority, the father and mother jointly exercise legal
guardianship over the property of their unemancipated common child without the necessity of a
court appointment.164 In the case of disagreement between the parents, the decision of the father
prevails, unless there is a judicial order to the contrary. The property of the child earned or
acquired with her work or industry or by onerous or gratuitous title belongs to her in ownership
and is devoted exclusively to her support and education unless the title or transfer provides
otherwise.165
The dominant understanding of guardianship implies parental control over the person and
property of the child. The child is thus obligated to obey and respect the decisions of the
guardian-parents. A child only becomes involved in a petition for guardianship if 14 years of
age or over.166 Prior to that, a child is considered unemancipated and there is no mention of the
childs participation in the administration of the fruits of her labor.
162

Violeta Bautista, The Socio-Psychological Make-up of the Filipino in Evelyn Miranda-Feliciano, ed, All
Things to All Men: an Introduction to Missions in Filipino Culture (Quezon City: New Day, 1998) at 3.
163
Sta. Ana, supra note 133 at 791.
164
Family Code, supra note 53, art. 225.
165
Ibid, art. 226, par. 1.
166
AM No. 03-02-05-SC (2003) Rule on Guardianship of Minors, s. 2.

70

However, certain implications of guardianship suggest a recognition of the childs active role in
the family. For one, the law implicitly recognizes the right of the child to ownership. Obviously,
without any recognition of the capacity of the child to have ownership (including the capacity to
work and earn income), there would be no issue of guardianship. But more importantly,
guardianship once again returns to the concept of familial ties. Because of the deep relations
shared by members of the family, guardianship recognizes the kapwa relationship between the
child and the parent. Moreover, the law adds another dimension to the concept by relating it to
support. If the childs property is more than sufficient for her own maintenance, it may be used
for the collective daily needs of the family.167 This attaches a responsibility aspect to the concept
of guardianship. In this sense, the child is seen as involved as an actual contributor in the
maintenance of the family making such child a critical part of the familys survival, economic or
otherwise.
C. FAMILY HOME
The family home, established jointly by the husband and wife or by an unmarried head of a
family, is the dwelling house where they and their family reside, and the land on which it is
situated.168 The beneficiaries of the family home include the parents, ascendants, descendants,
brothers and sisters, whether the relationship is legitimate or illegitimate, who are living in the
family home and who depend upon the head of the family for legal support.169 As an important
representation of the family, the family home becomes a principal site for defining who the child
is. Allatt writes: it [the concept of home] concerns feelings of belonging, of moral claims to be
there, as well as material and emotional support and physical place.170
The family home is primarily constituted by husband and wife or an unmarried head of the
family. A dominant interpretation of this legal provision is that children are merely incidental in
the constitution of the family home. If the family home is to be sold, only the consent of
167

Family Code, supra note 53, art. 226, par. 2.


Ibid, art. 152.
169
Ibid, art. 154. This enumeration shows the extent of family relations in Philippine society. It is also an
indication of the composition of homes in the Philippines.
170
Pat Allatt, Conceptualizing Parenting from the Standpoint of Children: Relationship and Transition in the Life
Course in Julia Brannen and Margaret OBrien, eds, Children in Families Research and Policy (London: The
Falmer Press, 1996) at 132.
168

71
majority of the beneficiaries of legal age is required. Only the adult residents of the family
home participate in these important matters that directly affect the child.
Viewed from the emergent paradigm, children actually influence the constitution of the family
home. Such influence is an actual engagement of children where they are active participants in
the constitution of the family home. The occupancy of any of the beneficiaries, including
children, can constitute a home as a family home. Likewise, so long as any of the beneficiaries
actually reside in the family home, it continues to be such and is exempt from execution, forced
sale or attachment.171 Furthermore, despite the death of one or both spouses or of the unmarried
head of the family, the family home shall continue as such for a period of 10 years or for as long
as there is a minor beneficiary.172 These provisions show how a child influences and shapes the
constitution of the family home. Furthermore, such role of the child within the legal concept of
the family home is understood once again as part of the network of relations in the family. The
child then, just like any other member of the family, is an important link in this circle of
relationships which is the basis of the constitution of the family home. As well, the child once
again serves as the focal point in what the family home represents, the network of relationships
embodied in the family. As Jocano observes, functionally, the family is the only corporate
unit in the society in that practically all group actions emanate from and are unified first in the
family.173
D. FAMILY AFFAIRS, CHILD-REARING AND DISCIPLINE
There is an express recognition in Philippine law of the participation of children with respect to
family affairs. The Child and Youth Welfare Code provides:
Whenever proper, parents shall allow the child to participate in the discussion of
family affairs, especially in matters that particularly concern him. In cases
involving his discipline, the child shall be given a chance to present his side.174
Reading this provision from the child-as-dependent dominant perspective diminishes the laws
recognition of the actual ability of the child to participate. From this interpretation, the law is
171

Family Code, supra note 53, art. 153.


Ibid, art. 159.
173
Jocano, supra note 105 at 62.
174
Child and Youth Welfare Code, supra note 63, art. 47.
172

72
formulated as a grant of permission from the standpoint of parents. It is understood that children
may participate in the discussion of family affairs so long as their parents allow them. This is
further qualified by the important proviso that such permission is granted only whenever
proper, thus limiting the participation of children even more. This legal construction is very
much consistent with the view that parents determine which rights their children may enjoy. It
also confirms the accepted cultural norm that parents bestow rights on their children as
discussed in Section III on the dominant understandings of family socialization.
Filipino parents are given the great responsibility of raising their young, weak, dependent,
passive and walang-isip (mindless/cannot think for themselves) children. As such, parents find it
difficult to surrender their power and not to impose their own standards, their own wishes on
their children. They are comfortable with the role of guide and disciplinarian, in which they use
their own lives as guides or templates for their children and in which practically any method is
allowed for them to keep their children on the right path.175 Since parents know best, they are to
be trusted regarding decisions directly affecting the child. This practice rests on the cultural
assumption that no parent wishes harm on their children (walang masamang hangad ang
magulang sa kanyang anak).176
Looking specifically at the context of discipline within the family, it is not surprising to see once
again the influence wielded by parental authority. The law expressly recognizes the right of
parents to discipline their children in both the Child and Youth Welfare Code and the Family
Code:
Parents have the right to discipline the child as may be necessary for the formation
of his good character, and may therefore require from him obedience to just and
reasonable rules, suggestions and admonitions.177
The parents and those exercising parental authority shall have with the respect to
their unemancipated children on wards the following rights and duties:

175

Ong, supra, note 55.


Ibid. The penal law even explicitly exempts parents from criminal liability for any physical injuries done on
their child. The Revised Penal Code, supra note 131, art. 263, in part, states that: The provisions of the preceding
paragraph [referring to the crime of serious physical injuries] shall not be applicable to a parent who shall inflict
physical injuries upon his child by excessive chastisement.
177
Child and Youth Welfare Code, supra note 63, art. 45.
176

73
(7) To impose discipline on them as may be required under the circumstances178
The dominant understanding of family socialization maintains that since parents have the duty
to transform their weak and immature children into good and responsible adults, parents are
allowed to use practically any method in discharging this responsibility.179 When children are
seen as dependents and passive recipients of this socialization function, it then becomes the task
of parents to correct the child using any means. Thus, the terms discipline and punishment are
used interchangeably.180 Guthrie and Jacobs confirm that Filipino parents deem the following as
the most effective punishments of children: whipping with a belt, a slipper or a stick, spanking,
pinching, ear-pulling, slapping, locking in a room, tying to a pole and tying in a sack.181 These
practices are a necessary response to the belief that children possess a natural penchant to do
mischief.182 Protacio-De Castro describes Philippine attitudes towards discipline:
The child who has done something wrong is punished in the hope that the behavior
will not be repeated. The belief is that pain must be felt for learning to take place.
The child may learn to fear getting caught and to avoid repeating the same
behavior if the punishment is severe. Thus, for punishment to be effective, it must
be severe and the severity must increase with subsequent infractions.183
The law does not seem to distinguish between discipline and punishment. The focus really is the
formation of good behavior on children. The experience of children, who are on the receiving
end of the punishment, is shaped by the obligation of obedience that has been set for them.
Guthrie and Jacobs explain:
Since Philippine parents expect that their children will be penitent after they have
been punished, the children learn to accept punishment rather stoically. The
youngster is often required to fetch the instrument of punishment and to bend over
to receive the treatment. After the punishment and the tears, he may sit quietly
saying with his eyes and his posture what he dare not say with his mouth. In a
one-room house the mother and her child are not able to get away from one
another. The mother often takes this as an opportunity for advising and in the
process relieves herself of her anger and proclaims her adherence to family values.
178

Family Code, supra note 53, art. 220 par. 7.


Ong, supra, note 55.
180
It is not surprising the relatively high incidence of physical punishment by parents on their children in the
Philippines is included in the World Health Organizations World Report on Violence and Health. See Etienne
Krug, Linda Dahlberg, James Mercy, Anthony Zwi and Rafael Lozano, eds, World Report on Violence and Health
(Geneva: World Health Organization, 2002).
181
George Guthrie and Pepita Jacobs, Child Rearing and Personality Development in the Philippines (University
Park: Pennsylvania State University Press, 1966).
182
Protacio, et al, supra note 80 at 104.
183
Protacio-de Castro, supra note 88.
179

74
The child, meanwhile, is denied an opportunity to retaliate and is more or less
compelled to suppress his anger and bitterness.184
The emergent paradigm, on the other hand, allows us to open family affairs as an opportunity
for children to participate in the structuring of the family. Instead of simply conceiving
childhood as a product of parenting, the emergent paradigm allows us to see parenting as a
response to the actual engagements of children.185 Socialization then becomes reciprocal
acknowledging the interdependence between parents and children. Within this scheme, the
recognition of children as active participants in the discussion of family affairs highlights a
fundamental responsibility of children in the maintenance of harmonious relationships. The
participation of children in family affairs should be seen within the context of establishing
connections among the network of kins. Such engagement of the child is not meant to assert
individual autonomy as understood in Western liberal traditions but rather to share ones self to
the members of the family. Thus, participation within family affairs does not signify asserting an
individuals self, rather, it affirms the kapwa as an inclusive sense of personhood.
This relational framework of the participation of children also recasts our understanding of the
experience of child rearing. Specifically, it clarifies the concept of discipline and how this
differs from punishment. Discipline and punishment represent two very distinct beliefs about
children in the family.186 For example, in the Civil Code of 1950 based largely on the Spanish
Civil Code of 1888, parents had the power with respect to their unemancipated children to
correct them and to punish them moderately.187 However, in the current Family Code, the law
simply provides for the imposition of discipline as may be required under the
circumstances.188

184

Guthrie and Jacobs, supra, note 181 at 112-113.


Allison James & Adrian James, Constructing Childhood: Theory, Policy and Social Practice (Houndmills,
Basingstoke, Hampshire: Palgrave Macmillan, 2004).
186
Susan Bitensky, Spare the Rod, Embrace our Humanity: Toward a New Legal Regime Prohibiting Corporal
Punishment of Children (1998) 31 U Mich J L Reform 353 at 399 for example, explains of how corporal
punishment is violative of the childs right to participation as participation implies dialogue, mutual respect and
tolerance. It facilitates the negotiation of solutions and promotes the growing responsibility of children. Similarly,
participation in family life is a form of dialogue which leads to the ability for negotiation and peaceful conflict
resolution.
187
Civil Code, supra note 132, art. 316, par. 2.
188
Family Code, supra note 53, art. 220 (7).
185

75
In a study189 conducted on child discipline and child abuse, both Filipino adults and children
agree that it is the discipline of children that is necessary. It is the responsibility of parents to
discipline their child otherwise, the parent is seen as not only having failed to fulfill a social
obligation but more importantly, having been abusive. Discipline is not only focused on
instilling values and correcting behaviors but it is also an expression of love and care of
parents.190 In fact, discipline is considered as an essential tool in maintaining a harmonious
relationship within the family.191 Equally important is how children themselves view discipline
as a form of their engagement in the family:
Children of various ages look at child discipline as a manifestation of their parents
love and concern. One respondent commented that he felt happy whenever his
parents discipline him because mahalaga pala ako sa kanila (I am important to
them). For the children-respondents, discipline helps them distinguish between
right and wrong and develop righteous attitudes.Child discipline is essential so
children learn from their own mistakes, change their attitudes and do what is right.
The children-respondents also consider discipline important to enable them to
grow healthy, strong, bright and respectful (underscore added).192
This understanding of child discipline affirms the connection of children to the family, which
represents, in turn, a connection to themselves. Children therefore see themselves with the
responsibility of maintaining these relational interdependencies. This defines their status as
active social actors whose behavior evokes consequences.
E. PARENTAL CONSENT AND ADVICE
The legal requirements of parental consent and advise before the marriage of a child193 has
traditionally been understood as a constraint on the child. As discussed earlier, the law provides
that emancipation takes place upon the attainment of majority, which commences at the age of
18. However, although an 18 year old is emancipated and qualified for all acts of civil life, that
person still requires parental consent until the age of 20 to contract marriage.194 The law requires
189

Understanding Child Discipline and Child Abuse in the Filipino Context (Manila, Philippines: Plan Philippines,
2005).
190
Ibid at 12.
191
Ibid.
192
Ibid at 13.
193
The term child in this section is used to denote a child only in relation to the parent because according to
Philippine law, a person who is to get married must be 18 years and is thus no longer a child.
194
Family Code, supra note 53, art. 236, par. 2.

76
that contracting parties to a marriage from the ages of 18 to 20 must exhibit to the local civil
registrar the consent to their marriage of their father, mother, surviving parent, or guardian or
persons having legal charge of them, in the order mentioned.195 The absence of such parental
consent makes the marriage voidable or annullable.196 As explained by Sta. Maria:
The law considers persons of the age of at least 18 years and below 21 years as not
possessing that degree of maturity to be able to comprehend thoroughly the
consequences and serious responsibilities of marital relations. Hence, before,
marriage, he or she must obtain parental consent. Any marriage contracted by
persons of these ages are considered annullable at the instance of the party whose
parent, guardian or person having substitute parental authority did not give his or
her consent and of the parents, guardian or person having substitute parental
authority over the party in that order. The opportunity to annul the marriage exists
in this situation so that the probability of a troublesome, ill-advised or stormy
marriage relationship due to unpreparedness of the contracting parties financially,
emotionally and psychologically to enter into such relationship can be terminated or
prevented.197
The drafters of the law recognize that an 18 year old would most likely still be in school and
thus dependent on her parents.198 This suggests that the parental consent requirement is a
repayment on the part of the child for the support, whether financially or otherwise, given by
the parents.199 Such a motivation clearly articulates the concept as an obligation.
Additionally, the law has also created a requirement of parental advice. Contracting parties to a
marriage who are between the ages of 21 and 25 are obliged to ask their parents or guardians for
advice upon the intended marriage.200 If they do not obtain such advice or if it is unfavorable,
the marriage license cannot be issued until three months following the completion of the
publication of the application.201 This highlights the oft-repeated justification of parental
authority that parents know best and that they only make decisions for the good of their
children. These twin requirements of parental consent and advise speak of how a child is always
a child relative to the parents.

195

Ibid, art. 14.


Ibid, art. 45, par. 1.
197
Sta. Maria, supra, note 133 at 267.
198
Records of the Senate, June 6, 1989 at 69.
199
Incidentally, support defined by law for the education of a child includes schooling or training for some
profession, trade or vocation, even beyond the age of majority. Family Code, supra note 53, art. 194.
200
Family Code, supra note 53, art. 15.
201
Ibid.
196

77
Seen as an engagement of the child, parental consent and advice are two important norms that
speak of an important responsibility of the child within the family. When a child asks for
consent or advise from the parents before marriage, such engagement once again establishes the
connection among the members of the family. What this means is that the child is not the only
one to enter into this new relationship in marriage. The child brings an entire network of kin and
relations. Going back to an earlier discussion, upon marriage, the man and the woman bring
with them their entire family into the new relationship. Thus, even before such union happens,
the members of ones family take part in that decision to marry. The legal requirements of
consent and advice, in fact, recognize the central role of the child in that structure of kinship. As
such, they are constructed not merely as obligations but more importantly as responsibilities that
such a child undertakes.
VI. CONCLUDING REFLECTIONS:
PROSPECTS FOR THE PARTICIPATION OF CHILDREN WITHIN THE PHILIPPINE FAMILY
It is clear in Philippine law that the family has been accorded preferential status. Such
safeguarding has been used to subsume the rights of its members for the benefit of the
institution. However, a careful examination of the understanding of the family in the Philippines
reveals that more than an institution, the family is a network of relationships. This means that
the family is no more meaningful than the relationships existing within it. These relational
interdependencies provide the basis for a collective sharing of values and a deep respect for the
dignity and inherent worth of a fellow human being. As such, protection of the rights of
individuals is perfectly compatible with being in a relationship. This recognition provides an
opening for revision of the legal framework to accommodate respect for the unique value of
each person, especially children.
The prevalent construction of the child within the context of the family in the Philippines is that
of dependency. As a dependent, the expectations from the child are seen as obligations. This is
manifested, for example, in the twin traditions of unquestionable parental authority and child
obedience. In addition, deeply ingrained social norms label the child as weak, vulnerable and
incompetent. The Committee on the Rights of the Child itself has observed of the Philippines
that childrens right to participation and free expression of their views is still limitedpartly

78
due to traditional attitudes in society.202 In this regard, it has been recommended that the
Philippines strengthen its efforts to promote, especially within the family, respect for the views
of the child and facilitate their interactive participation in all matters affecting them.203
What the emerging paradigm of children and childhood brings is the possibility of the
construction of the child as an active participant in the structuring of the family. Children are not
mere passive recipients of the family socialization. This recognizes them as active social
participants whose acts evoke consequences. Fundamental in this definition is the recognition of
the personhood of the child; the experiences of the child as a child within the family; and the
relationships established, maintained and preserved.
Through the lens of childhood studies and childrens rights, we are able to see an emerging
paradigm of childhood. Understanding that the law is not exclusively based on a construction of
the child as a dependent opens a door for a new appreciation of the engagements and influence
of the child within the family. This, however, is not to say that legal reform is unnecessary in
dealing with children in the family. With the law still controlled by the dominant paradigm of
childhood, there is a need to re-evaluate the current legal landscape. What this chapter
undertakes to show is that within the current legal framework, there are powerful and effective
means of advocating for the participation of children. The emerging paradigm of childhood,
highlighting the childs active role in the family, can be used to identify the seeds of a
competing construction of the child as interdependent which offers the possibility for greater
realization of the participation of children. It is through giving significance to the childs
identity in the here and now that we can see them as active participants in the structuring of the
family.
Reframing obligations as responsibilities empower children as active participants in the
structuring of the system of relationships. As responsibilities, these expectations become tasks
that children undertake. Children are then recognized as partakers in the construction of their
own lives, the lives of those around them and of the societies in which they live. This
underscores their capacities to express their ideas and participate in making choices on matters
202

United Nations Committee on the Rights of the Child, CRC Concluding Observations: Philippines, 39th Sess,
UN Doc CRC/C/15/Add.259 (2005) at par. 29.
203
Ibid at par. 30.

79
and events that affect them and their families.
The reality of Philippine society, as reflected in the family, is that there is a mutual sharing of
rights and responsibilities. This is emphasized in the value of interconnectedness. The
philosophy of kapwa underscores a consciousness of shared identities. Thus, the childs
participation within the family is not meant to break familial ties. Rather, it is meant to
strengthen them. The relationships that the child negotiate within the structure of kin stem from
collective values shared with the whole of humanity and the deep respect for the dignity and
inherent worth of a fellow human being. Indeed family relationships are based on interdependency of family members, and not merely on an assumption of childrens dependency on
adults.204 Given the immense power of the law, it can be an important means for
recontextualizing children within their families and reformulating relationships negotiated
within those structures. This also involves recognizing the inherent dignity and worth of a child.
Such acknowledgment, in turn, transforms the intrinsic quality and meaning of actions of the
child and actions towards the child.

204

Gerison Lansdown, The Evolving Capacities of the Child (Florence, Italy: UNICEF Innocenti Research Centre,
2005) at 58.

80
CHAPTER II
THE CHILD, EDUCATION AND THE LAW
This boy did not go to school.
He went to play in the water.
He does not like to go to school.
He does not like to read and write.
He does not like his teacher.
He will not make jars and baskets.
He will not get water for his mother.
He will not carry the baskets for her.
He is not a good boy.
He is a bad boy.
He will not be a good man.1
From the point of view of society, formal
educational institutions are developed to
prepare younger members to effectively
carry out the legitimate roles of adult
social life: to meet the expectations
mature members of society have of them
and to perpetuate the existing social
order after older generations die out.
Schools do, in fact, usually transmit much
of the dominant culture of the society
and, at the same time, imbue some level
of commitment to that society and to its
culture. The content of the transmitted
culture includes, in large measure, the
values, norms, knowledge, beliefs, and
symbols upon which there is general
social agreement. In the case of
disagreement,
it
includes
those
characteristics that the most powerful
groups in the society want to perpetuate.2
One of the most evident symbols of difference between children and adults is the school. The
belief that children should be in school highlights the distinction drawn between childhood and
adulthood. While the adult is thought to be rational, autonomous and independent, the child on
1

Glenn May, Social Engineering in the Philippines: The Aims, Execution, and Impact of American Colonial Policy,
1900-1913 (Connecticut: Greenwood Press, 1980) at 101 citing David Gibbs, The Insular First Reader (New York,
1904).
2
Audrey James Schwartz, The Schools and Socialization (New York: Harper & Row, 1975) at 94.

81
the other hand lacks the capabilities to participate in the adult world.3 Given this disparity, the
child is assumed to occupy a special and separate world, regulated by affection and education,
not work or profit.4
The special place for the child has long been the subject of discourse. Philippe Aries famously
argued that in medieval society, the idea of childhood did not exist.5 This meant that society then
did not distinguish the child from the adult and as soon as the child could live without the
constant solicitude of his mother, his nanny or his cradle-rocker, he belonged to adult society.6
Even for schools, Aries argued that it was not a separate world intended for children:
On the contrary, for a long time the school remained indifferent to the separation
and distinction of the ages, because it did not regard the education of children as its
essential aim. Nothing predisposed the medieval Latin school for this function of
moral and social education. The medieval school was not intended for children: it
was a sort of technical school for the instruction of clerics, young or old as
Michaults Doctrinal put it. Thus it welcomed equally and indifferently children,
youths, adults, the precocious and the backward, at the foot of the magisterial
rostrum.7
A number of authors have theorized on the emergence of this separate world of childhood.
Zelizer in her seminal work, Pricing the Priceless Child,8 argues that the redefinition of children,
at least in the United States, was part of a cultural process of sacralization of childrens lives.
The result was an understanding that properly loved children, regardless of social class,
belonged in a domesticated, nonproductive world of lessons, games and token money.9
Edwards, meanwhile, maintains that education as a process of institutionalisation has regulated
much of childrens lives. She writes of institutionalisation:
It has been historically promoted by the introduction of compulsory schooling in
the industrialised world, and childrens accompanying exclusion from substantial
paid work activity. This process addresses childrens increasing
compartmentalisation in specifically designated, separate and protected organised
3

David Archard, Children: Rights and Childhood (Milton Park: Routledge, 2004).
Viviana Zelizer, Pricing the Priceless Child: The Changing Social Value of Children (New York: Basic Books,
Inc., 1985) at 209.
5
Philippe Aries, Centuries of Childhood: A Social History of Family Life (New York: Alfred A. Knopf, 1962). See
however Archard, supra note 3 who argues that what was lacking was not a concept of childhood but our
conception of childhood.
6
Ibid at 128.
7
Ibid at 330.
8
Zelizer, supra note 4.
9
Ibid at 11.
4

82
settings, hierarchically supervised by professionals and hierarchically structured
according to age and ability.10
Prout, another leading scholar in childhood studies, postulates that within the last few years there
has been a progressive relocation of children to special and protected spaces arising from
increased levels of institutional control over them.11 This, according to him, is evidenced by such
phenomena as compulsory schooling, formal exclusion of children from work and the process he
calls domestication.12
The confinement of the child in schools, as well as in homes, best represents the special and
separate world of childhood. These two sites of engagement, by conceptually constraining and
substantively containing13 children, are deemed as the only proper place for them. The school
and the home are bounded settings where children not only empirically tend to spend increasing
amounts of time, but also prescriptively where they should be located.14 The United Nations
Convention on the Rights of the Child (UNCRC), for example, makes primary education
compulsory;15 encourages the development of different forms of secondary education;16 and
works towards the availability and accessibility of both higher education17 and general and
vocational education.18 It even mandates that the state take measures to encourage regular
attendance at schools and to reduce drop-out rates.19 The fact is that education itself has been
recognized as necessary for the full development of the human personality.20 Coomans writes:
Education is a social good, because it creates opportunities and provides people
with choices. In this sense, education is an end in itself. However, it is also a
10

Rosalind Edwards, Introduction: Conceptualising Relationships Between and Home and School in Childrens
Lives in Rosalind Edwards, ed, Children, Home and School: Regulation, Autonomy or Connection? (London:
RoutledgeFalmer, 2002) at 5.
11
Alan Prout, Participation, Policy and the Changing Conditions of Childhood in Christine Hallett and Alan
Prout, eds, Hearing the Voices of Children Social Policy for a New Century (London: RoutledgeFalmer, 2003).
12
Ibid. Prout defines domestication as the progressive removal of children from the streets and other public spaces
and their relocation in special protected places.
13
Julia Brannen and Margaret OBrien, Introduction in Julia Brannen and Margaret OBrien, eds, Children in
Families Research and Policy (London: The Falmer Press, 1996) at 1.
14
Edwards, supra note 10 at 4.
15
Convention on the Rights of the Child, 1577 UNTS 3 (entered into force 2 September 1990) [UNCRC], art.
28(1)(a).
16
Ibid, art. 28(1)(b).
17
Ibid, art. 28(1)(c).
18
Ibid, art. 28(1)(d).
19
Ibid, art. 28(1)(e).
20
Universal Declaration of Human Rights, GA Res. 217A (III), UN GAOR, 3d Sess. Supp. No. 13, UN Doc A/810
(1948) 71 [UDHR], art. 26(2).

83
means to an end, because it helps to achieve economic growth, health, poverty
reduction, personal development and democracy.21
Consequently, education is accepted as a right with a solid basis in international human rights
law.22 The UNCRC proclaims the right to education in Art. 28:
1. States Parties recognize the right of the child to education, and with a view to
achieving this right progressively and on the basis of equal opportunity, they shall,
in particular:
(a) Make primary education compulsory and available free to all;
(b) Encourage the development of different forms of secondary education,
including general and vocational education, make them available and accessible to
every child, and take appropriate measures such as the introduction of free
education and offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity by every
appropriate means;
(d) Make educational and vocational information and guidance available and
accessible to all children;
(e) Take measures to encourage regular attendance at schools and the reduction of
drop-out rates.
2. States Parties shall take all appropriate measures to ensure that school discipline
is administered in a manner consistent with the child's human dignity and in
conformity with the present Convention.
3. States Parties shall promote and encourage international cooperation in matters
relating to education, in particular with a view to contributing to the elimination of
ignorance and illiteracy throughout the world and facilitating access to scientific
and technical knowledge and modern teaching methods. In this regard, particular
account shall be taken of the needs of developing countries.23
Given the centrality of education in the lives of children, this chapter examines how the
discourses on education have impacted the educational experiences of children. Traditionally,
conversations about education have focused on whether the educational system is a site of

21

Fons Coomans, Content and Scope of the Right to Education as a Human Right and Obstacles to its
Realization in Yvonne Donders and Vladimir Volodin, eds., Human Rights in Education, Science and Culture:
Legal Developments and Challenges (UK: Ashgate Publishing Co., 2007) at 185.
22
See e.g. UDHR, supra note 20, art. 26; United Nations Educational, Scientific and Cultural Organization,
Convention Against Discrimination in Education, online: UNESCO <http://portal.unesco.org/en/ev.phpURL_ID=12949&URL_DO=DO_TOPIC&URL_SECTION=201.html#AUTHORITATIVE>;
and
the
International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 993 UNTS 3, (entered into
force 3 January 1976) [ICESCR], arts. 13-14.
23
UNCRC, supra note 15, art. 28.

84
cultural transformation or simply a vehicle for the reproduction of the existing state of affairs.24
In these debates, there is hardly any acknowledgment of the voice of children and their
engagements within education. Children are simply positioned as passive receptors of implicit
and subtle messages about identity inscripted in the educational process and the policies through
which schooling takes place.25 As in the dominant understanding of the family, where
socialization has been viewed as the adult concern for the reproduction of social order,26 the
dominant vision of education has been understood simply as a system to prepare children to
effectively carry out the legitimate roles of adult social life.27
This chapter shows the strong presence of the dominant paradigm of education in Philippine
laws and policies. Within this framework, Filipino children positioned as non-citizens who
need education to become caring, self-reliant, productive and patriotic citizens (emphasis
added)28 are merely the targets of the educational system. Thus, under this approach, the
educational environment is principally adult-centric and control-driven through which children
are simply prepared to become responsible citizens.29 But at the same time, the chapter also
shows that within the current legal context of the Philippine educational system, there is a
concrete articulation of an educational framework that, contrary to the dominant paradigm,
opens up a space for the participation of students in schools. In this alternative view, there is an
acknowledgment of the role of children within the process of education and a recognition of
their rights within that system. Given the existence of the two frameworks in Philippine laws
and policies, the chapter reveals an intricate Philippine legal environment with respect to
education.
24

See e.g. Michael F D Young, ed, Knowledge and Control: New Directions for the Sociology of Education
(London: Collier-Macmillan Publishers, 1971).
25
Allison James & Adrian James, Constructing Childhood: Theory, Policy and Social Practice (Houndmills,
Basingstoke, Hampshire: Palgrave Macmillan, 2004) at 117.
26
Alan Prout and Allison James, A New Paradigm for the Sociology of Childhood? Provenance, Promise and
Problems in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary
Issues in the Sociological Study of Childhood, 2d ed (London: The Falmer Press, 1997) at 13.
27
Schwartz, supra note 2.
28
Republic Act No. 9155 (2001) An Act Instituting a Framework of Governance for Basic Education, Establishing
Authority and Accountability, Renaming the Department of Education, Culture and Sports as the Department of
Education, and for other Purposes [Governance of Basic Education Act of 2001], s. 2.
29
See e.g. Jay Yacat and Michelle Ong, Beyond the Home: Child Abuse in the Church and School (Quezon City,
Philippines: Save the Children UK, Philippines and Psychosocial Trauma and Human Rights Program, Center for
Integrative and Development Studies and University of the Philippines, 2001); Richard Velayo, A Perspective on
Child Abuse in the Philippines: Looking at Institutional Factors in Florence Denmark, et al, eds, Violence in
Schools: Cross-National and Cross-Cultural Perspectives (New York: Springer Science+Business Media, Inc,
2005).

85

In particular, the chapter demonstrates a dichotomy of frameworks in specific state actions that
deal with the status, conditions and circumstances of children within the system of education.
The principal argument is that in these instances of state action where there seems to be an
expressed recognition of the participation of children i.e. upholding of the fundamental rights
and freedoms of students in schools; initiation of a learner-based curriculum; institution of an
inclusive educational content and performance standards, these are undermined by
rationalizations that still proceed from the overarching socialization function of education to the
exclusion of children. Thus, even with a clear endorsement of the emerging framework, the
effects of such an approach are limited by the heavy influence of the dominant paradigm that
fundamentally excludes children. Because the dominant paradigm still holds a powerful sway,
the engagements of children are obscured and their role in the system of education is made
incidental. Consequently, this places children outside of society and public life30 where they
are assigned to a conceptual space that lacks the legal, moral and political values to which adult
citizens supposedly subscribe.31 As such, there is a legitimation of the construction of
childhood simply as a preparation for adulthood and citizenship; and teaching children is
understood as the process of forming them to become proper adults and responsible citizens.32
The chapter advances an alternative educational framework based on the language of shared
purpose found in the current law. This is very much consistent with the indigenous relational
philosophy of kapwa. Such a framework challenges the overarching authority of education. It
opens up the possibility to shift the focus of education from its socializing function towards the
recognition of the interdependent engagements of the different members of the educational
community including children. The framework emphasizes the deep attachment of the
members of the community to their system of education that only in an atmosphere of
engagement can the true goals and objectives of education be fulfilled. This allows all the
members of the educational community to be engaged with their system of education not only
through the exercise of their rights but also through the establishment of their connections as
expressed in reciprocal responsibilities and relationships.
30

James and James, supra note 25 at 123.


Ibid.
32
See generally Brenda Simpson, Regulation and Resistance: Childrens Embodiment During the PrimarySecondary School Transition in Alan Prout, ed, The Body, Childhood and Society (Great Britain: Macmillan Press
Ltd., 2000).
31

86

The chapter begins in Section I by laying down the dominant representations of children and
childhood within the prevailing understanding of the educational system. It looks at how
childhood has been distinguished from adulthood by constructing children as incompetent,
irrational and incapable non-adults. Through such a depiction, education is understood as the
means by which children are developed and pushed towards the more preferred status of
adulthood. This construction of children creates the restrictive environment within which they
are educated and the corresponding limited opportunities available to them within this context.
Section II examines the emerging paradigm of childhood that recognizes the diversity of the
lives of children. This, in turn, exposes the inadequacy of the dominant representations of
childhood to account for the actual experiences of children. Within this emerging paradigm,
children are also recognized as social actors and active informants of their lives. Not only does
this open up the educational process to the engagement of children but it also reconceptualizes
the school setting as a site in which children participate in the discovery of their identities as
selves.
The next section then demonstrates and explores the intricate legal environment of the
Philippine educational system where there is a heavy influence of the dominant paradigm but at
the same time there is a concrete attraction to the emerging paradigm. Section III first looks at
the dominant legal understandings of the educational system in the Philippines where there is a
heavy and reflexive emphasis on the role of the school to prepare the child for the
responsibilities of adulthood.33 Within this framework, children are simply seen as non-citizens
and non-adults who need education to develop, improve and grow-up into both citizenship and
adulthood. This construction not only tends to exclude the diversity in childrens lives, it also
obscures the active engagements of children within the educational system. This then justifies
the characterization of childhood as a state of incapacity and irresponsibility with children being
treated as the passive recipients of education.
This same section also explores an alternative vision of education that has found expression in
the law. Through an articulation of the values of shared purpose and contextualized governance
33

Presidential Decree No. 603 (1974) The Child and Youth Welfare Code [Child and Youth Welfare Code], art. 1.

87
in education, there is the possibility of shifting state focus from the socializing function of
educational institutions towards the recognition of the interdependent engagements of the
different members of the educational community. Within this alternative framework, there is, in
fact, recognition of students as integral members of the educational community. As such, there
is a more concrete opportunity to acknowledge the diverse lives of students and their active role
in ensuring that the values, needs and aspirations of the educational community are reflected in
the system of education. However, because of the still pervasive influence of the dominant
understanding of education, this alternative framework has had limited effect on the system of
education in general and the educational experience of students in particular. The struggle
between these two educational frameworks and the extent of their effects are clearly
demonstrated by the specific instances of state responses to the engagements of children within
education discussed in the succeeding section.
Section IV examines two specific contexts in which the state has been asked to respond to the
engagements of students within the educational system: the first context involves the judiciary,
and a series of Supreme Court decisions in which the court had been asked to recognize and
protect students exercise of their rights in schools; the second context involves the executive
branch, through the Department of Education and two recent attempts to initiate and implement
major reforms in curriculum and educational policy. In each context one finds some recognition
of the participation and engagement of children but this recognition is limited by the
overwhelming influence of the dominant paradigm and a reflexive reversion to the overarching
socialization function of education to the exclusion of children. Thus, children continue to be
seen predominantly as the passive targets of a proper education that seeks to cure them of
their inadequacies and prepare them to take their place as a productive member of society. In the
end, the engagements of children remain incidental and their educational experience remains
authoritative and hierarchical, legitimized by their perceived inherent vulnerability and
dependency.
Finally, Section V concludes by drawing on the language of shared purpose present in
Philippine education laws and policy to promote an alternative educational framework reflective
of the indigenous relational philosophy of kapwa. As adverted to earlier, this approach opens up
the possibility to shift the focus of education from its socializing function towards the

88
recognition of the interdependent engagements of the different members of the educational
community including children. With this understanding, engagements of children within
education are re-interpreted as expressions of their deep connections to the educational
community and not merely the exercise of rights. Such a re-interpretation involves seeing these
engagements as reciprocal responsibilities and relationships that leads towards a transformed
educational environment.
I. THE ABSENCE OF CHILDREN IN EDUCATION:
DOMINANT REPRESENTATION
Education laws and policies are largely responsible for the kind of environment that children
experience while they are in school. These laws and policies are based on adult representations
of the child. More particularly, they are based on how adults see children and childhood.
Because adults use adult standards to define children, laws and policies have been based on the
childs difference from adults. Christensen and Prout aptly describe the dominant construction
of childhood:
Childhood is ascribed special meaning as a phase in human life; the child is
surrounded with care and concern which endeavor to prepare and protect the child;
at the same time these perceptions attribute value to childhood and the child mostly
in relation to a future adult life through the status of non-adult; the child is more
valued as a being in process, that is, being socialized towards a goal through which
to take his or her place in society, than in his or her present state.34
Schools, in turn, provide the socialization wherein children are drawn along a trajectory
leading them to the (preferred and dominant status) of adult.35 As Durkheim asserts: In order
that there be education, there must be a generation of adults and one of youth, in interaction, and
an influence exercised by the first on the second.36 The disparity between children and adults
and the uni-directional influence exercised by the latter over the former consequently fashions
children as non-citizens whose rights and responsibilities are in the future. McDonald writes of
34

Pia Christensen and Alan Prout, Anthropological and Sociological Perspectives on the Study of Children in
Sheila Greene and Diane Hogan, eds, Researching Childrens Experience Approaches and Methods (London: Sage
Publications, 2005) at 45.
35
Catherine McDonald, The Importance of Identity in Policy: The Case For and Of Children (2009) 23:4
Children and Society 241 at 245.
36
Emile Durkheim, Education and Sociology, translated by Sherwood Fox (Glencoe, Illinois: The Free Press, 1956)
at 67.

89
this future-looking construction of children: [It] render[s] them as immature adults in the
making, captured and propelled by an inevitable telos of cognitive, physical, emotional and
social development towards some idealised and imagined end.37
This construction of children also translates into dependency. Education laws and policies depict
children as wholly dependent on adults. Such dependence heralds the social engineering goals of
education that reflect the idea of the tabula rasa child. In the words of Durkheim:
Education is the influence exercised by adult generations on those that are not yet
ready for social life. Its object is to arouse and develop in the child a certain
number of physical, intellectual and moral stages, which are demanded of him by
both political society as a whole and the social milieu for which he is specifically
destined.38
James and Prout have graphically characterized the childs learning in traditional paradigms:
The child is portrayed, like the laboratory rat, as being at the mercy of external
stimuli: passive and conforming. Lost in a social maze it is the adult who offers
directions. The child, like the rat, responds accordingly and is finally rewarded by
becoming social, by becoming adult.39
In accordance with this dominant characterization of children and education, laws and policies
rely heavily on homogeneity to keep the child in check within the school setting. Universalizing
the experiences and capacities of children brings order and consistency to the educational
system. Owing largely to developmental assumptions, every child is understood to neatly fit into
age-appropriate skills and behavior. This makes it possible to accurately chart the educational
course of children. On a pragmatic level, one can gauge childrens learning and understanding
expectancies at given age levels. In turn, such assessments dictate the content of educational
materials and the activities children are allowed to undertake. Educators often refer to the
abilities of students as though making factual observations.40 This attitude sanctions the practice
of measuring the competencies of a child against those of other children of the same age. Those

37

McDonald, supra note 35 at 244.


Durkheim, supra note 36 at 71.
39
Prout and James, supra note 5.
40
Lise Bird, Creating the Capable Body: Discourses about Ability and Effort in Primary and Secondary School
Studies in Berry Mayall, ed, Childrens Childhoods: Observed and Experienced (London: The Falmer Press,
1994).
38

90
who measure up to the standard are identified as normal, those who fall below the
competency mark, as deviants or failures.
II. ACKNOWLEDGING CHILDREN IN EDUCATION:
EMERGING PARADIGM
The distinction between children and adults as laid down by the dominant paradigm in the
previous section has brought about the discourse of the separate and special place for children.
The dominant representation of education, its socializing function and the corresponding
construction of children within this environment have, in fact, furthered the notion referred to in
the beginning of this chapter of a conceptually constraining and substantively containing41
world for children embodied in both the school and the home.
Both childhood studies and childrens rights discourse have exposed the inadequacy of the
dominant representation of childhood to account for what it is to be a child. This has brought
about a demand to recognize the diversity of the lives of children around the world. As
understood in this thesis, the new understandings of childhood proceed from the premise that
childhood is neither a natural nor universal feature of human groups.42 Going back to the
assertion of Prout and James that different discursive practices [now] produce different
childhoods, each and all of which are real within their own regime of truth,43 the understanding
is that there is neither the real child nor an authentic childhood experience. Instead,
universalistic and monolithic conceptions of childhood have marginalized more and more
children whose realities have either been ignored or downright denied. Such marginalization has
led to efforts towards a more particularistic and contextually-sensitive construction of childhood
that is more inclusive and representative of the real lives of children.44
As emphasized throughout this thesis, an acknowledgment of the diversity of the lives of
children also means a reconstruction of children as active in the construction and determination
of their own social lives, the lives of those around them and of the societies in which they
41

Brannen and OBrien, supra note 13.


Prout and James, supra note 5 at 8.
43
Ibid at 25.
44
Sharon Stephens, Introduction Children and the Politics of Culture in Late Capitalism in Sharon Stephens, ed,
Children and the Politics of Culture (New Jersey: Princeton University Press, 1995).
42

91
live.45 Such a reconstruction, McDonald writes: emphasises the competence of children as
social actors and as informants about their lives.46 In particular, with respect to the
understandings of children within the educational system, children cannot simply be positioned
as passive receptors of implicit and subtle messages about identity inscripted in the educational
process.47 There must be a real acknowledgment of and engagement with children as social
agents who receive and participate in the educational process as pupils in the school system.48
It contemplates a school environment where the educational experience is not simply founded
on adult direction, within laid down social norms49 but where the engagements of students are
recognized and they are given opportunities for genuine participation. To underscore this point,
children, in fact, are not only seen as social actors but also as agents.50 James and James write:
Since the emergence of the new paradigm in childhood studies, no longer can
children be regarded as the passive output of child-rearing practices nor their social
development envisaged as the product of a simple biological determinism. Instead,
acknowledgment has to be made of the diversity of childrens childhoods and of
childrens own part as social agents in shaping their childhood experiences.51
Even the right to education under the UNCRC52 incorporates a new dimension: education
should be child-centered and child-friendly in both a protective and empowering way.53 By
explicitly recognizing the child as the holder of the right, the UNCRC articulates the centrality
of the childs voice and participation in the right to education embodied in its Art. 28.54 In fact,
the Committee on the Rights of the Child notes that respect for right of the child to be heard

45

Prout and James, supra note 5 at 8.


McDonald, supra note 35 at 245.
47
James and James, supra note 25.
48
Ibid.
49
Berry Mayall, Children in Action at Home and School in Berry Mayall, ed, Childrens Childhoods: Observed
and Experienced (London: The Falmer Press, 1994) at 124.
50
Berry Mayall, Towards a Sociology for Childhood: Thinking from Childrens Lives (Buckingham: Open
University Press, 2002) at 21 describes a social actor and an agent as follows: A social actor does something,
perhaps something arising from a subjective wish. The term agent suggests a further dimension: negotiation with
others, with the effect that the interaction makes a difference to a relationship or to a decision, to the workings of
a set of social assumptions or constraints.
51
James and James, supra note 25 at 23.
52
Education, in fact, is accepted as a right with a solid basis in international human rights law. See supra note 22.
53
Mieke Verheyde, Article 28: The Right to Education in Andr Alen, et al, eds, A Commentary on the United
Nations Convention on the Rights of the Child (Leiden: Martinus Nijhoff Publishers, 2006) at 9.
54
UNCRC, supra note 15.
46

92
within education is fundamental to the realization of the right to education.55 As such, the
Committee recommends:
In all educational environments, including educational programmes in the early
years, the active role of children in a participatory learning environment should be
promoted. Teaching and learning must take into account life conditions and
prospects of the children.56
The significance given by the UNCRC to the child as an individual reflects the emerging
paradigm of children and childhood. Indicative of the emerging paradigm of children in the
educational environment is the opening up of opportunities for children to participate on
educational matters, such as the content of the curriculum, exam schedules, pedagogic styles,
school facilities (toilets, pupil lockers, vending machines, etc.), sports events, dressing code
etc.57 As well, a broader understanding of the right to education now signifies that the free
choice of education is no longer the exclusive prerogative of the parents. Verheyde writes:
The rights the parents have in the education of their children are subject to the
underlying principles of the CRC such as the best interest of the child and the
evolving capacities of the child. Furthermore, the parental rights should be
balanced against the childs own rights under the Convention, such as the right of
the child to receive an education that promotes tolerance and respect of others and
its participation rights (emphasis added).58

III. THE LEGAL CONTEXT OF THE PHILIPPINE EDUCATIONAL SYSTEM:


A DICHOTOMY OF FRAMEWORKS
The legal framework of the educational system in the Philippines is embodied in four major
documents: the 1987 Philippine Constitution, the Child and Youth Welfare Code, the Education
Act of 1982 and the Governance of Basic Education Act of 2001. This section demonstrates the
complexity of the Philippine legal environment with articulations of both the dominant and
emerging paradigms in the system of education.

55

United Nations Committee on the Rights of the Child, General Comment No. 12 (2009) The Right of the Child to
be Heard, CRC/C/GC/12, 51st Sess (2009) at 24, par. 105.
56
Ibid at 24, par. 107.
57
Verheyde, supra note 53 at 58.
58
Ibid at 48.

93
An analysis of these laws reveals the strong presence of the dominant understanding of
education with the resolute endorsement of the solemn duty of educational institutions to
prepare the child for the responsibilities of adulthood. But at the same time, there have also been
concrete expressions in the law that move towards an emerging paradigm where the role of
students within education is acknowledged and their rights within the system recognized.
However, as will be shown later on, this emerging paradigm has been obscured by the
overwhelming emphasis on the socialization function of education to the exclusion of children.
This has sanctioned the cycle of perpetuated control and dependency where children continue to
be treated simply as the targets of education.
A. THE DOMINANT LEGAL FRAMEWORK IN THE PHILIPPINE EDUCATIONAL SYSTEM:
A UNIVERSAL PRESCRIPTION FOR THE DEVELOPMENT OF FUTURE CITIZENS
The Philippine Constitution, as the supreme law of the land, lays down the general framework
of protecting children and inculcating values in its future citizens. The Declaration of Principles
and State Policies provides:
The State recognizes the vital role of the youth in nation-building and shall
promote and protect their physical, moral, spiritual, intellectual, and social wellbeing. It shall inculcate in the youth patriotism and nationalism, and encourage
their involvement in public and civic affairs.59
In advancing these principles, the Constitution mandates that the State give priority to
education60 by protect[ing] and promot[ing] the right of all citizens to quality education at all
levels, andtak[ing] appropriate steps to make education accessible to all.61 The State, in fact,
is called upon to establish, maintain, and support a complete, adequate, and integrated system
of education relevant to the needs of the people and society.62 To this end, education is to be
assigned the highest budgetary priority by the State.63 Such precedence given to education is

59

1987 Philippine Constitution [Constitution], art. II, s.13.


Ibid, art. II, s. 17.
61
Ibid, art. XIV, s. 1.
62
Ibid, art. XIV, s. 2(1).
63
Ibid, art. XIV, s. 5(5). While it is true that under the Constitution, education is assigned the highest budgetary
priority by the State, this does not mean that education will, in fact, get the highest budgetary allocation. In
Guingona v. Carague, G.R. No. 94571, April 22, 1991 the Supreme Court of the Philippines ruled that it does not
thereby follow that the hands of Congress are so hamstrung as to deprive it the power to respond to the imperatives
of the national interest and for the attainment of other state policies or objectives.
60

94
necessary to achieve the goals of foster[ing] patriotism and nationalism, accelerat[ing] social
progress, and promot[ing] total human liberation and development.64 Within the existing
constitutional articulation, human liberation and development are to be achieved by children
remaining under the care and protection of adults. This understanding is apparent in the
declaration that:
[Educational institutions] shall inculcate patriotism and nationalism, foster love of
humanity, respect for human rights, appreciation of the role of national heroes in
the historical development of the country, teach the rights and duties of citizenship,
strengthen ethical and spiritual values, develop moral character and personal
discipline, encourage critical and creative thinking, broaden scientific and
technological knowledge, and promote vocational efficiency (emphasis added).65
The language of the fundamental law is derived from its predecessors. As early as the 1935
Constitution, the primary aim of schools was as it is now to develop moral character,
personal discipline, civic conscience, and vocational efficiency, and to teach the duties of
citizenship (emphasis added).66 In the 1973 Constitution, all educational institutions were
required to aim to inculcate love of country, teach the duties of citizenship, and develop moral
character, personal discipline, and scientific, technological, and vocational efficiency (emphasis
added).67
Both the language and tenor of the Constitution are clear in ascribing the status and identity of
children. Children are non-citizens who need to develop, improve and grow up by being taught
citizenship, values and character qualities possessed by adults. Childhood is represented as a
preparation for adulthood and citizenship; and schools provide the crucial function of shaping
children to become proper adults and responsible citizens. The value then of childhood lies in
its potential worth in the future. The educational system enables children to progress to
adulthood where they will be considered social, moral and legal beings. Once again, Archards
observation resonates: if childhood is a stage, it is a stage on the way to adulthood. Adulthood
is not a stage. It is the culmination and goal of development, and thus what brings to an end the
sequence of stages.68 The significant distinction between children and adults is that childhood
64

Ibid, art. II, s. 17.


Ibid, art. XIV, s. 3(2).
66
1935 Constitution, art. XIII, s. 5.
67
1973 Constitution, art. XV s. 8, par. 4.
68
Archard, supra note 3 at 44.
65

95
is understood as an incomplete and less preferred state. This understanding becomes the basis
for an educational system in which children are the recipients of instruction necessary for their
future. This in turn legitimises the exertion of adult power over children69 and explains the
need to control, to protect and to teach children within the school system.
The other legal instruments detailing educational policy are even more unequivocal in
characterizing childrens current incapacities. In its opening provision, the Child and Youth
Welfare Code clearly distinguishes the child from the adult when it mandates that the school,
like other institutions, for example the church, should assist the home and the State in the
endeavor to prepare the child for the responsibilities of adulthood.70 Furthermore, the same
Code expresses a clear characterization of children as it lays down the aims of education:
(3) Every child has the right to a well-rounded development of his personality to
the end that he may become a happy, useful and active member of society.
xxx
(6) Every child has the right to an education commensurate with his abilities and to
the development of his skills for the improvement of his capacity for service to
himself and to his fellowmen.71
xxx
(12) Every child has the right to grow up as a free individual, in an atmosphere of
peace, understanding, tolerance, and universal brotherhood, and with the
determination to contribute his share in the building of a better world (emphasis
added).72
Although these provisions are articulated as rights of the child, they construct childhood as
being characterized by deficiencies. The insistence on preparing the child for the responsibilities
of adulthood speaks strongly about the perceived nature of children and childhood. By stating
that education prepares the child for the responsibilities of adulthood, the law implicitly
constructs childhood as a state of irresponsibility. As well, the assertion by law that children,
through education, may develop the capacity to be of service to themselves and others is a clear
indication of the laws acknowledgement of the present incapacity of the child. It tends to
69

McDonald, supra note 35 at 244.


Child and Youth Welfare Code, supra note 33, art. 1, par. 6.
71
Ibid, art. 3(6).
72
Ibid, art. 3(12).
70

96
disregard any moral voice that children demonstrate in their daily lives. The Code even
proclaims that a child shall exert his utmost to develop his potentialities for service,
particularly by undergoing a formal education suited to his abilities, in order that he may
become an asset to himself and to society.73 By focusing on the objective of preparing children
for adulthood and overlooking the present capacities of children, the law reflects the view of
James and James: And it is through education, through literally turning children into pupils,
that they can be introduced into society and come to understand how, as adults, they will find
their place within it.74
Equally revealing is the laws recognition that a child has the right to grow up to be free,
confirming the childs current lack of freedom. In idealizing the prospects for the child in the
future, the law in fact says much more about the realities of the child today. Being free and
contributing to building a better world75 are traits that children may only aspire to attain.
These representations of children and childhood are similarly echoed in the Education Act of
1982. It declares in its objectives that all educational institutions shall aim to inculcate love of
country, teach the duties of citizenship, and develop moral character, personal discipline and
scientific, technological and vocational efficiency (emphasis added).76 In particular, the
educational system aims to:
Provide for a broad general education that will assist each individual in the
peculiar ecology of his own society, to (a) attain his potentials as a human being;
(b) enhance the range and quality of individual and group participation in the basic
functions of society; and (c) acquire the essential educational foundation of his
development into a productive and versatile citizen (emphasis added).77
In the later Governance of Basic Education Act of 2001, which supplements and partly amends
the Education Act of 1982, the law declares that the goal of basic education [is] to provide
[Filipino children] with the skills, knowledge and values they need to become caring, selfreliant, productive and patriotic citizens (emphasis added).78 Such a goal was articulated as
73

Ibid, art. 4(4).


James and James, supra note 25 at 123.
75
Child and Youth Welfare Code, supra note 33, art. 3(12).
76
Batas Pambansa Bilang 232 (1982) An Act Providing for the Establishment and Maintenance of an Integrated
System of Education [Education Act of 1982], s. 4, last par.
77
Ibid, s. 4(1).
78
Governance of Basic Education Act of 2001, supra note 28, s. 2.
74

97
early as the first Education Act of 1953, which required schools to develop healthy citizens of
good moral character, equipped with the knowledge, habits, and ideals needed for a happy and
useful home and community life (emphasis added).79
Because of these constructions of children in education law, the goals of learning in general and
of schools in particular become apparent. In this environment, schools hold the key to learning.
Children are treated as mere recipients in the education process.80 The clearest expression of this
hierarchical learning is the recognition that the primary right of the student in school is to
receive competent, relevant and quality education.81 In the Constitution, the entire section on
education focuses on providing a system of education in which the child is seen as an object of
the noble aims of education. In this system, there is an emphasis on teaching the rights and
duties of citizenship, strengthening values and developing moral character and personal
discipline.82 In the Governance of Basic Education Act of 2001, through education, children are
the recipients of skills, knowledge and values that they need to become caring, self-reliant,
productive and patriotic citizens.83 In the Child and Youth Welfare Code, the law constructs the
child as a mere target of the educational process when it mandates that the child is to be
developed, brought up and improved by an education commensurate with his abilities.84 In fact,
in the law it is the schools responsibility, along with other institutions such as the family and
the church, to instill high moral principles in the child.85 Likewise, the representation of the
child as a recipient within the educational system is expressed in the childs obligation to:
Exert his utmost to develop his potentialities for service, particularly by undergoing a formal
education suited to his abilities, in order that he may become an asset to himself and to society
(emphasis added).86

79

Republic Act No. 896 (1953) An Act to Declare the Policy on Elementary Education in the Philippines, s. 2.
The term process here should be used with ambivalence for what takes place in this type of environment is
transference.
81
Education Act of 1982, supra note 76, sec. 9(1).
82
Constitution, supra note 59, art. XIV, s. 3(2).
83
Governance of Basic Education Act of 2001, supra note 28, s. 2.
84
Child and Youth Welfare Code, supra note 33, art. 3(6).
85
Ibid, art. 14.
86
Ibid, art. 4(4). This provision is almost identical to the duty of the child mandated by the Education Act of 1982,
supra note 76, s. 15(1) as follows:
1. Exert his utmost to develop his potentialities for service, particularly by undergoing an [compared to the Child
and Youth Welfare Code, the word formal is deleted in the Education Act of 1982] education suited to his
abilities, in order that he may become an asset to his family [compared to the Child and Youth Welfare Code, the
word himself is deleted and replaced with to his family] and to society.
80

98
Another important aspect of educational laws is their reliance on developmentalism. This is
evident in the way the law sets out the goals of education based on the twin assumptions of
universalized notions of childhood and predetermined developmental stages. This facilitates the
creation of a conventional environment for children in schools based on an authentic childhood
experience of the child created by law. The actual experiences of each child, all of which are
real within their own regime of truth,87 are either stigmatized or simply left out. This
diminishes the actual engagements of children within the educational system and disregards the
plurality of voices of children. Thus, as schools shall have a single aim of providing the best
possible basic education for all learners,88 the law prescribes the standard environment within
which the child is to be educated.
Homogeneity is sanctioned when the law endorses the potentialities of every child and the
corresponding right to an education commensurate with his abilities.89 The idea of
commensurate with abilities is based on developmentally laid out standards for children of
every age. In this approach to education, children receive skills, knowledge and values that they
need to become caring, self-reliant, productive and patriotic citizens.90 This is what James and
James call a societal prescription of what children need in order to secure their future as adult
citizens.91
Specifically, universalized notions of childhood are recognized in the following articulation:
The child shall enjoy special protection and shall be given opportunities and
facilities, by law and by other means, to ensure and enable his fullest development
physically, mentally, emotionally, morally, spiritually and socially in a healthy and
normal manner and in conditions of freedom and dignity appropriate to the
corresponding developmental stage (emphasis added).92
The law clearly prescribes a universal standard of normal within which children should
develop. It fails to acknowledge that the experience of growing up is diverse and shaped by
particularities in the life of each child. Even stronger evidence of the laws desire to universalize

87

Prout and James, supra note 5 at 25.


Governance of Basic Education Act of 2001, supra note 28, s. 2.
89
Child and Youth Welfare Code, supra note 33, arts. 3(6) & 4(4).
90
Governance of Basic Education Act of 2001, supra note 28, s. 2.
91
James and James, supra note 25 at 122.
92
Child and Youth Welfare Code, supra note 33, art. 10.
88

99
the experience of childhood is the laws categorization of the rights of different children. The
Child and Youth Welfare Code provides:
(3) Every child has the right to a well-rounded development of his personality to
the end that he may become a happy, useful and active member of society.
The gifted child shall be given opportunity and encouragement to develop his
special talents.
The emotionally disturbed or socially maladjusted child shall be treated with
sympathy and understanding, and shall be entitled to treatment and competent care.
The physically or mentally handicapped child shall be given the treatment,
education and care required by his particular condition (emphasis added).93
The way this provision is crafted exposes a method of marginalizing children who are deemed
not to be normal. The law begins with the standard of the child who has developed in a wellrounded way and who will eventually become a happy, useful and active member of society. It
then moves to the gifted child who surpasses the standard. Then finally, there are those
children who fall below the standard, i.e. the emotionally disturbed, the socially maladjusted and
the physically or the mentally handicapped, who shall be treated with sympathy,
understanding and care. Therefore, the goal for every normal child is a well-rounded
development to be happy, useful and active. This categorization applies universally to all
children based on developmentally appropriate stages. Not only does this legal framework
concretize assumptions of what children should be able to do but it also articulates moral, social,
legal and political choices made by adults with respect to what they think children need.94
Consequently, this legal framework limits the space within which children may assert
themselves in accordance with their own real and lived experiences and more importantly, it
becomes a tool for marginalization.
B. THE EMERGING PARADIGM IN THE PHILIPPINE EDUCATIONAL SYSTEM:
AN ACKNOWLEDGMENT OF THE ROLE AND RIGHTS OF STUDENTS IN EDUCATION

93

Ibid, art. 3.
See e.g. Martin Woodhead, Psychology and the Cultural Construction of Childrens Needs in Allison James
and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study
of Childhood, 2d ed (London: The Falmer Press, 1997).
94

100
Notwithstanding the dominant legal framework of the Philippine educational system expressed
in the solemn duty of educational institutions to endeavor to prepare the child for the
responsibilities of adulthood,95 there is also an articulation within the law of ideas that reflect
the emerging paradigm and that acknowledge the role of children within the process of
education and recognizes their rights within that system.
At the outset, the very recognition by the Constitution of the vital role of the youth in nationbuilding96 opens up an opportunity to establish a conception of children as actual participants
in society. Though very broad in its formulation, this acknowledgment nevertheless encourages
the youth to be involved in public and civic affairs.97
The alternative framework for education was first articulated in the Education Act of 1982 and is
specifically expressed in the language of spirit of shared purposes and cooperation. In its
Declaration of Policy and Objectives, the law provides:
It is likewise declared government policy to foster, at all times, a spirit of shared
purposes and cooperation among the members and elements of the educational
community, and between the community and other sectors of society, in the
realization that only in such an atmosphere can the true goals and objectives of
education be fulfilled (emphasis added).98
The language of spirit of shared purposes and cooperation broadens the understanding of
education as a system that is not solely restricted to the duty of educational institutions to
develop children. Such an articulation clearly diffuses the function of education. Because this
framework reformulates the purpose of education as a shared undertaking, there is the
possibility of challenging the overarching authority of educational institutions. The framework
re-imagines education as a process originating from the bottom-up rather than being hierarchical
and authoritative. It emphasizes the deep attachment of the members of the community to their
system of education that only in an atmosphere of engagement can the true goals and objectives
of education be fulfilled. Within this framework, education, thus, becomes a common objective
in which the members of the community partake in instead of being an externally imposed goal
that they reflexively receive. Significantly, this spirit of shared purposes and cooperation
95

Child and Youth Welfare Code, supra note 33, art. 1, par. 6.
Constitution, supra note 59, art. II, s. 13.
97
Ibid.
98
Education Act of 1982, supra note 76, s. 5.
96

101
opens up the opportunity for engagement not only for parents, teachers and schools but also for
students and pupils who are recognized in the law as members and elements of the
educational community. The law declares:
Educational community refers to those persons or groups of persons as such or
associated in institutions involved in organized teaching and learning systems. The
members and elements of the educational community are:
xxx
2. Students, or those enrolled in and who regularly attend an educational
institution of secondary or higher level or a person engaged in formal study.
Pupils, are those who regularly attend a school of elementary level under the
supervision and tutelage of a teacher.99
The significance of students in the realization of the goals of education is further bolstered when
the law specifically enjoins the state to promote and safeguard the welfare and interests of the
students by defining their rights and obligations, according them privileges, and encouraging the
establishment of sound relationships between them and the other members of the school
community.100 This statement appears to provide a recognition of the participation of students
within the educational system. It gives due consideration to students who through their rights
and obligations, privileges and relationships clearly share in the responsibility of realizing the
true goals and objectives of education.101 Thus, such an understanding repositions students
within the school system where they can be seen as critical and active participants i.e. they are
intimately connected to the educational community where their engagements share in the
shaping and promotion of their system of education.
The Education Act of 1982 then goes on to provide for the rights and responsibilities of students
within schools as follows:
Rights of Students in School. In addition to other rights, and subject to the
limitations prescribed by law and regulations, [students] and pupils in all schools
shall enjoy the following rights:

99

Ibid, s. 6.
Ibid, s. 5(2).
101
Ibid, s. 5.
100

102
1. The right to receive, primarily through competent instruction, relevant quality
education in line with national goals and conducive to their full development as
persons with human dignity.
2. The right to freely choose their field of study subject to existing curricula and to
continue their course therein up to graduation, except in cases of academic
deficiency, or violation of disciplinary regulations.
3. The right to school guidance and counseling services for making decisions and
selecting the alternatives in fields of work suited to his potentialities.
4. The right of access to his own school records, the confidentiality of which the
school shall maintain and preserve.
5. The right to the issuance of official certificates, diplomas, transcript of records,
grades, transfer credentials and other similar documents within thirty days from
request.
6. The right to publish a student newspaper and similar publications, as well as the
right to invite resource persons during assemblies, symposia and other activities of
similar nature.
7. The right to free expression of opinions and suggestions, and to effective
channels of communication with appropriate academic channels and administrative
bodies of the school or institution.
8. The right to form, establish, join and participate in organizations and societies
recognized by the school to foster their intellectual, cultural, spiritual and physical
growth and development, or to form, establish, join and maintain organizations and
societies for purposes not contrary to law.
9. The right to be free from involuntary contributions, except those approved by
their own he organizations or societies.102
Duties and Responsibilities of Students. In addition to those provided for under
existing laws, every student shall:
1. Exert his utmost to develop his potentialities for service, particularly by
undergoing an education suited to his abilities, in order that he may become an
asset to his family and to society.
2. Uphold the academic integrity of the school, endeavor to achieve academic
excellence and abide by the rules and regulations governing his academic
responsibilities and moral integrity.
3. Promote and maintain the peace and tranquility of the school by observing the
rules of discipline, and by exerting efforts to attain harmonious relationships with
fellow students, the teaching and academic staff and other school personnel.
4. Participate actively in civic affairs and in the promotion of the general welfare,
particularly in the social, economic and cultural development of his community
and in the attainment of a just, compassionate and orderly society.
5. Exercise his rights responsibly in the knowledge that he is answerable for any
infringement or violation of the public welfare and of the rights of others.103
The fact that the law recognizes children as having both rights and responsibilities within the
102
103

Ibid, s. 9.
Ibid, s. 15.

103
school system aside from their being considered a member and element of the educational
community suggests that children, indeed, are not mere passive recipients of education. One
could imagine this as being a platform for the participation of children that is not only most
meaningful to them but also respectful of the context within which they live their lives.
The later Governance of Basic Education Act of 2001 did not render inoperative the provisions
of the Education Act of 1982. In fact, the participatory framework of shared purposes and
cooperation of the prior law was been carried over to the current law, albeit reconceptualized.
It is now expressed in the language of shared governance and a contextualized system of
education. With this reconceptualization, the law now squarely addresses the bureaucratic and
hierarchical system of education governance. It provides:
Principles of Shared Governance. (a) Shared governance is a principle which
recognizes that every unit in the education bureaucracy has a particular role, task
and responsibility inherent in the office and for which it is principally accountable
for outcomes;
(b) The process of democratic consultation shall be observed in the decisionmaking process at appropriate levels. Feedback mechanisms shall be established to
ensure coordination and open communication of the central office with the
regional, division and school levels;
(c) The principles of accountability and transparency shall be operationalized in
the performance of functions and responsibilities at all levels; and
(d) The communication channels of field offices shall be strengthened to facilitate
flow of information and expand linkages with other government agencies, local
government units and nongovernmental organizations for effective governance104
What this law stresses is a framework of contextualized governance within the education
bureaucracy. This involves the devolution of education governance to the localized levels.105
The fundamental objective of such a framework is to translate and adapt educational policies

104

Governance of Basic Education Act of 2001, supra note 28, s. 5.


See e.g. Bella Marias and Maria Pelagia Ditapat, Philippines: Curriculum Development online: United
Nations Educational, Scientific and Cultural Organization (UNESCO) - International Bureau of Education (IBE)
<http://www.ibe.unesco.org/curriculum/Asia%20Networkpdf/ndrepph.pdf> who describe a devolved and
decentralized educational governance in this manner: [W]hile curriculum implementation guidelines are issued at
the national level, the actual implementation is left to school-teachers. They determine the resources to be used;
teaching and assessment strategies and other processes. Furthermore, schools have the option to modify the national
curriculum (e.g. content, sequence and teaching strategies) in order to ensure that the curriculum responds to local
concerns.
105

104
into localized needs. Thus, the establishment and maintenance of education is brought closer to
the communities where programs, projects and services not only respond to local needs but also
reflect local values. In its Declaration of Policy, the law states:
Governance of basic education shall begin at the national level. It is at the regions,
divisions, schools and learning centers herein referred to as the field offices
where the policy and principle for the governance of basic education shall be
translated into programs, projects and services developed, adapted and offered to
fit local needs.
The State shall encourage local initiatives for improving the quality of basic
education. The State shall ensure that the values, needs and aspirations of a school
community are reflected in the program of education for the children, out-ofschool youth and adult learners. Schools and learning centers shall be empowered
to make decisions on what is best for the learners they serve.106
This commitment to contextualized and localized governance within the education bureaucracy
reinforces an alternative framework in which education is a process that stems from the bottomup rather than one that is hierarchical and authoritative. The fundamental understanding within
this more particularistic and contextually-sensitive setting of educational policies is the diversity
in the lives and values of different communities. Within these communities are children who
contribute to this diversity and equally share in the formation of the local values, needs and
aspirations.
However, despite this articulation of an emerging paradigm in the law that seems to express the
idea of recognizing children as participants within the process of education and as having rights
within that system, this framework has had limited effect on the system of education in general
and the educational experience of students in particular. Because of the pervasive influence of
the dominant paradigm which places an overarching emphasis on the duty of education to
develop and produce productive and responsible citizens and adults, there is still a characteristic
exclusion of children in the establishment and maintenance of a system of education that is, in
the words of the Constitution, relevant to the needs of the people and society.107 In this regard,
the argument of Woodhead is apropos:

106
107

Governance of Basic Education Act of 2001, supra note 28, s. 2.


Constitution, supra note 59, art. XIV, s. 2(1).

105
Childrens needs have been constructed as part of a standardized model in which
childhood is a period of dependency defined by protectionist adult-child
relationships in which adults are dominant providers and children are passive
consumers.108
The struggle between these two educational frameworks and the extent of their effects are
clearly demonstrated by the response of the state, through the judicial and executive branches, to
engagements of children within education. In the succeeding section, it will be shown how
specific instances of state action demonstrate this dichotomy of frameworks where despite an
expressed recognition of the participation of children, state rationalizations which still rely
heavily on the overarching socialization function of education to the exclusion of children
negate such claims, or otherwise limit their effects.
IV. STATE RESPONSE TO THE ENGAGEMENTS OF CHILDREN IN EDUCATION:
TWO STEPS FORWARD, ONE STEP BACK
This section now looks at the complex interplay of these two educational frameworks as the
Philippine legal system has grappled with concrete issues of student engagements. On the one
hand, there has been a long-standing tradition of emphasizing the socialization function of
educational institutions necessary to produce mature and responsible adults and citizens. On the
other hand, however, there are also clear intimations of a commitment to acknowledging the
active role of children in education and recognizing their rights within that system. These latter
efforts have the potential to broaden the understanding of education and to shift the educational
system in the direction of the alternative framework. However, as will be shown, these moves
are undermined and limited by the still influential dominant legal framework that reflexively
reverts to the overarching socialization function of education to the exclusion of children.
Specifically, the section examines two contexts where the state has dealt with the claims and
assertions of students relating to their education. The first context involves the judiciary, and a
series of Supreme Court decisions in which the court had been asked to recognize and protect
students exercise of their rights in schools. The second context involves the executive branch,
acting through the Department of Education, and two recent attempts to initiate and implement
major reforms in curriculum and educational policy. These state actions demonstrate how even
108

Woodhead, supra note 94 at 78.

106
in instances where there seems to be an expressed recognition of the participation of children
e.g. cases where the fundamental rights and freedoms of students in schools are upheld; learnerbased curriculum; inclusive educational content and performance standards, underlying state
rationalizations still proceed from the overarching socialization function of education to the
exclusion of children. The effect of these justifications is that they minimize, if not totally
disregard, the very real contributions of children to the establishment, maintenance and
attainment of a system of education relevant to the needs of the people. Thus, children continue
to be seen predominantly as the passive targets of a proper education that seeks to cure them
of their inadequacies and prepare them to take their place as a productive member of society.
Such exclusion of children simply undermines the claim of recognizing their participation
within the educational system that the state proclaims to carry out.
A. JUDICIAL RESPONSE TO CLAIMS FOR THE EXERCISE OF STUDENTS RIGHTS:
A NARRATIVE OF EXCLUSION AND RECOGNITION
This first sub-section looks at a series of judicial cases decided by the Philippine Supreme Court
where students have had their rights denied by the school and have brought their claim before
the court, seeking recognition and protection of their rights within the school system. The subsection traces how the legal system has moved from rationalizations in its early jurisprudence
that flatly rejected students assertion of rights based on the construction of children as nonadults who need schools to be socialized and developed into citizenship to a series of important
decisions that acknowledged the status of students as citizens by upholding their fundamental
rights and freedoms within the school system.
The later cases upholding the constitutional rights of students within schools have indeed been
clear victories for students. By sustaining the fundamental rights and freedoms of students, the
court has moved in the direction of providing some recognition for the rights of children as
citizens while in school. However, without detracting from the significance of these victories for
students, it should also be clear that the impact of these decisions has been limited precisely
because they only dealt with constitutional rights that focused on the inviolability of the Bill of
Rights in the Constitution. Although they have created an opening for a broader repositioning of

107
students within the educational system with respect to these rights, their fundamental value is
really in the victory of constitutional rights and freedoms.
Equally significant, underneath these cases was still the overriding influence of a framework
based upon the overarching socialization function of education. In fact, these constitutionally
protected rights were located within the established power of educational institutions, albeit a
limitation to their authority. Because the court was still operating under the framework of the
socializing function of education in the resolution of those cases, schools retained their authority
subject only to the limitation of students constitutional rights. Thus, although the court upheld
the rights of students in those cases, it reverted to the language of the dominant paradigm
expressed in the solemn duty of education to develop, teach and prepare the child for the
responsibilities of citizenship and adulthood. In the end, these court challenges, exceptional as
they were with their potentially powerful principles, have not effected systemic changes within
education, especially in the daily experiences of students within schools.
1. REJECTING STUDENTS RIGHTS WITHIN EDUCATION:
AN ATTITUDE OF EXCLUSION
The clearest and most controversial use by the Supreme Court of the language of the dominant
paradigm to deny the voice of children in education was in the case of Gerona, et al v. Secretary
of Education, et al109 brought in 1959 which involved the assertion by students of their right to
the exercise of freedom of religion within schools.
This case arose when the Secretary of Education ordered the expulsion of a number of students
in a certain school who refused to salute the flag, sing the national anthem and recite the
patriotic pledge contrary to a Department of Education Order requiring all students to do so. The
students refusal to comply with the required acts was in accordance with their religious beliefs
as Jehovahs Witnesses that they should not bow down, revere or serve any image including the
flag. As a result, they were all expelled from school and other children similarly situated were

109

G.R. No. L-13954, August 12, 1959.

108
under threat of also being expelled from all public schools in the Philippines. The students110
questioned this Order arguing that it violated their religious freedom.
The court ruled against the students111 declaring that, in effect, the practice of these students was
based on a mistaken belief because [t]he Filipino flag is not an image that requires religious
veneration[and] that the flag salute is not a religious ceremony but an act and profession of
love and allegiance and pledge of loyalty to the fatherland which the flag stands for.112 Not
only did the court supplant the beliefs of the students, it essentially dictated to them what they
were to believe or not believe. Implicit in the reasoning of the court was the assumption that
children were incapable of understanding what the assertion of this right meant. The court relied
heavily on a construction of children as non-beings and non-citizens who needed to be taught
the responsibilities of adulthood. On such an understanding of children, educational institutions
had a clear duty to develop children and teach civic consciousness and the duties of citizenship.
The court even went on to compare students in schools to school children of kingdoms and
empires who were taught early to respect and love the king or the emperor for these rulers and
sovereigns symbolize the nation, and the children as future citizens or subjects will come to love
their country.113 This reinforced the less preferred status of children in society and in the
process, strengthened the special nature of the school environment characterized by control and
instruction.
The court then turned to the ill effects of granting the students an exemption from this nondiscriminatory school regulation114 and allowing this small portion of the school population to
impose its will. In justifying its ruling, the court stated that not only was it protecting the
schools duty of educating these particular students, it was also looking after the welfare of
110

Throughout the official document of this case, there was no indication of the ages of the children involved. The
court simply referred to the students as children attending the Buenavista Community School, Uson, Masbate,
[who] refused to salute the flag, sing the national anthem and recite the patriotic pledge contrary to the requirement
of Department Order No. 8; [who] as a resultwere expelled from school sometime in September, 1955. It would
also appear that this case was brought by the parents of the children as the court referred to the students as the
petitioners children indicating that the children were not the petitioners themselves.
111
Although it appears that the students were not the petitioners, the court, nevertheless, was specifically addressing
the children as the real party in interest. Clearly, the Departmental Order in question involved the flag-raising
ceremony in schools where pupilsor studentswho are in school and its premises shall assemble in formation
facing the flag. Thus, in its discussion of the case, the court was looking at the childrens failure or refusal to
obey school regulations about the flag salute.
112
Gerona, et al v. Secretary of Education, et al, supra note 109.
113
Ibid.
114
Ibid.

109
the other pupils. The court expressed alarm that should an exemption be granted to some
students, it would cause disobedience from other students:
The trouble with exempting petitioners from participation in the flag ceremony
aside from the fact that they have no valid right to such exemption is that the latter
would disrupt school discipline and demoralize the rest of the school population
which by far constitutes the great majority. If the children of Jehovah Witnesses
are exempted, then the other pupils, especially the young ones seeing no reason for
such exemption, would naturally ask for the same privilege because they might
want to do something else such as play or study, instead of standing at attention
saluting the flag and singing the national anthem and reciting the patriotic pledge,
all of which consume considerable time.115
The blanket reference of the court to these young ones invokes a dominant representation of
children. The fact that the court spoke on behalf of these young ones confirmed its
homogenizing view of all children. The court posited itself as an authority, certain about what
these other children would think, say and do. Even more troubling was the courts assumption
that children did not understand the whole business of saluting the flag, singing the national
anthem and reciting the patriotic pledge. The court made it appear that these were activities that
students had no understanding of and that children would rather be doing something else
likely playing. This view of children simply reinforced the duty of schools to teach and inculcate
citizenship to these immature and irresponsible future citizens.
Equally problematic was the notion of the uncontrollable child from whom disobedience
necessarily ensued. Not only was this a statement of the childs perceived incompetence but
also, more importantly, of the childs irrationality. The court could not seem to fathom the idea
that children could understand differences among children in a way that would not lead to chaos.
The reasoning used in this case sanctioned the prevalent view that children by themselves were
helpless, immature and irresponsible. Children were also seen as dangerous116 justifying the
socializing role of educational institutions.
In the end, the court chose to reject the claim of rights by relying on the construction of children
115

Ibid.
See e.g. Alan Prout, Participation, Policy and the Changing Conditions of Childhood in Christine Hallett &
Alan Prout, eds, Hearing the Voices of Children: Social Policy for a New Century (London: RoutledgeFalmer,
2003). Prout uses two different but equally problematic images to articulate ambiguities about childhood: children
in danger and children as dangerous.
116

110
as non-beings. The children were mistaken in their beliefs and were better served by the
socializing function of educational institutions that prepared them for citizenship. Indicative of a
dismissive attitude towards these students, the court said: they [students] could take it or leave
it.Having elected not to comply with the regulations about the flag salute, they forfeited their
right to attend public schools.117
The emphasis on the socializing function of educational institutions to the exclusion of children
articulated in this 1959 Gerona case became firmly planted in Philippine jurisprudence and
incorporated within the concept of academic freedom. In the 1975 case of Garcia v. The Faculty
Admission Committee, Loyola School of Theology,118 the court had the occasion to articulate the
import of academic freedom of learning institutions, in this case, an institution of higher
learning.119 Quoting the U.S. Supreme Court, the court ruled that academic freedom involves the
freedom of a university to determine for itself on academic grounds who may teach, what may
be taught, how it shall be taught, and who may be admitted to study.120 As in the Gerona case,
the court focused on affirming the duty of schools to develop its students into mature,
responsible, effective and worthy citizens, barely referencing the role of students in this system
of education.
The academic freedom of educational institutions was later reiterated and further expanded to
apply to any school in the 1982 case Angeles v. Sison121 which raised the issue of the extent of
the reach of schools with regard to acts of its students. In setting out the elements of an
educational environment conducive to learning, this case laid down the necessity of discipline
that extends to acts of students beyond the school premises. The case involved two students122
who were accused of mauling a professor outside the school premises and after school hours. An
administrative complaint was filed in the school, which was opposed by the students. The school
argued that the complaint it filed and the ensuing investigation were simply in furtherance of
the universitys legally recognized right to discipline its students. On the other hand, the
117

Gerona, et al v. Secretary of Education, et al, supra note 109.


G.R. No. L-40779, November 28, 1975.
119
This particular case involved a graduate student, indicating an older student, seeking court relief that she be (re-)
admitted to graduate school.
120
Concurring Opinion of Justice Felix Frankfurter, Sweezy v. New Hampshire, 364 U.S. 234, 263 (1957).
121
G.R. No. L-45551, February 16, 1982.
122
This case involved two students in mechanical engineering at a university in Manila. There was no express
mention of their ages except for the reference that one was then a minorrepresented by his father.
118

111
students maintained that since the acts complained of were beyond the confines of the school,
any investigation conducted by the school with regard to this incident was, in their words,
violative of [their] right[s] to privacy and peace of mind.
In ruling against the students, the court relied on the all-encompassing socializing function of
educational institutions over its students. By focusing solely on the function of schools to
develop children into mature, responsible, effective and worthy citizens, the court reinforced
the view of children as passive recipients of education. Children were seen as helpless,
immature and irresponsible by themselves. In the case of students who were seen as
dangerous, educational institutions had the responsibility to discipline them. Thus, the court
declared:
A college, or any school for that matter, has a dual responsibility to its students.
One is to provide opportunities for learning and the other is to help them grow and
develop into mature, responsible, effective and worthy citizens of the community.
Discipline is one of the means to carry out the second responsibility. Thus, there
can be no doubt that the establishment of an educational institution requires rules
and regulations necessary for the maintenance of an orderly educational program
and the creation of an educational environment conducive to learning. Such rules
and regulations are equally necessary for the protection of the students, faculty,
and property. The power of school officials to investigate, an adjunct of its power
to suspend or expel, is a necessary corollary to the enforcement of such rules and
regulations and the maintenance of a safe and orderly educational environment
conducive to learning.123
This principle of academic freedom, specifically the right of educational institutions to
determine on academic grounds who shall be admitted to study, who may teach, and what shall
be the subjects of the study and research124 was later expressly incorporated into the Education
Act of 1982. Integral to this is the right of teachers and school administrators to be deemed

123

Angeles v. Sison, supra note 121.


Education Act of 1982, supra note 76, s. 13(2). See also Republic Act No. 7722 (1994) An Act Creating the
Commission on Higher Education, Appropriating Funds Therefor and for other Purposes [Higher Education Act of
1994], s. 2:
The State shall likewise ensure and protect academic freedom and shall promote its exercise and
observance for the continuing intellectual growth, the advancement of learning and research, the
development of responsible and effective leadership, the education of high-level and middle-level
professionals and the enrichment of our historical and cultural heritage.
State-supported institutions of higher learning shall gear their programs to national, regional or local
development plans. Finally, all institutions of higher learning shall exemplify through their physical
and natural surroundings the dignity and beauty of as well as their pride in, the intellectual and
scholarly life.
124

112
persons in authority when in the discharge of lawful duties and responsibilities, andtherefore,
[to] be accorded due respect and protection.125
2. UPHOLDING STUDENTS FUNDAMENTAL RIGHTS AND FREEDOMS:
INDICATIONS OF RECOGNITION
Even though the academic freedom of educational institutions is clearly recognized within the
legal framework with the passing of the Education Act of 1982, the same law also expressly
acknowledges the role of children within the process of education and recognizes their rights
within that system. Most significant, the law particularly enjoins the state to promote and
safeguard the welfare and interests of the students by defining their rights and obligations,
according them privileges, and encouraging the establishment of sound relationships between
them and the other members of the school community.126 This movement towards an emerging
framework of education is reflected in the succeeding cases where the court has been more
receptive to the view that questions of students exercise of rights within schools implicate more
than the socializing function of educational institutions. Thus, in these cases, the court has
clearly engaged in balancing the education function of schools against the fundamental rights
and freedoms of students.
The case in which the court began to more thoroughly consider the rights of students within the
educational system is Malabanan, et al v. Ramento, et al127 decided in 1984. In this case, the
court was tasked to resolve whether certain disciplinary actions and penalties imposed on
students violated their rights of peaceable assembly and free speech. The facts were fairly
simple. The students128 applied for and were granted a permit to hold an assembly. However, on
the day of the assembly, the students marched towards areas not covered by the permit and
beyond the time allotted. In the process, the students made utterances that were severely critical
of school authorities. Classes were disrupted and some school personnel had to stop their work.
125

Education Act of 1982, supra note 76, ss. 11(3) and 12.
Ibid, s. 5(2).
127
G.R. No. 62270, May 21, 1984.
128
There was no express mention of the ages of the students involved in this case. The decision simply referred to
them as students of the Gregorio Araneta University Foundationwho were officers of the Supreme Student
Council. Being identified as university students is an indication that they were more likely older children. Also,
the case title indicates that this action was brought by the students themselves without the assistance of their
parents.
126

113
The students involved were suspended for a year. Before the court, the students invoked their
rights to peaceable assembly and free speech, while the school cited its power to discipline its
students.
The court ruled in favor of the students, upholding their rights to peaceable assembly and free
speech. Expounding on the students rights, the court said:
The rights to peaceable assembly and free speech are guaranteed to students of
educational institutions. Necessarily, their exercise to discuss matters affecting
their welfare or involving public interest is not to be subjected to previous restraint
or subsequent punishment unless there be a showing of a clear and present danger
to a substantive evil that the state has a right to present. As a corollary, the utmost
leeway and scope is accorded the content of the placards displayed or utterances
made.129
While the court recognized the authority of educational institutions over its students, their
powers could not go so far as to violate constitutional rights guaranteed to these students. The
court did, however, make clear that schools could take disciplinary action for conduct which
materially disrupted class work or involved substantial disorder or invasion of the rights of
others. In this case, the students could not be totally absolved for the events that transpired.
Because there was a violation of the terms of the permit, the school could take disciplinary
action. But any penalty had to be proportionate to the offense and here, the one-year period of
suspension was deemed much too severe.
The pronouncement in the Malabanan case was reiterated a year later in Villar, et al v.
Technological Institute of the Philippines, et al130 where the court specifically upheld
students131 rights to peaceable assembly and free speech within the context of the academic
freedom enjoyed by learning institutions. The court ruled in this case:
The academic freedom enjoyed by institutions of higher learning includes the
right to set academic standards to determine under what circumstances failing
grades suffice for the expulsion of students. Once it has done so, however, that
standard should be followed meticulously. It cannot be utilized to discriminate
129

Malabanan v. Ramento, supra note 127.


G.R. No. 69198, April 17, 1985.
131
Once again, there was no mention of the ages of the students. As in the previous case of Malabanan, as
university students, they were more likely older children. As well, the case title indicates that this was brought by
the students themselves.
130

114
against those students who exercise their constitutional rights to peaceable
assembly and free speech. If it does so, then there is a legitimate grievance by the
students thus prejudiced, their right to the equal protection clause being
disregarded.132
The case of Guzman, et al v. National University133 decided in 1986 also upheld the
constitutional rights of students within educational institutions. Not only did the court sustain
the rights of peaceable assembly and free speech, it also guaranteed students right to due
process in school disciplinary proceedings. The students134 in this case were refused readmission
because of their alleged participation in mass actions within the premises of the school. The
students argued that, in addition to having their constitutional right to peaceful assembly and
free speech violated, they were, in effect, being subjected to the extreme penalty of expulsion
without cause or if there was cause, without being informed of such cause and without being
afforded the opportunity to defend themselves. The school, on the other hand, argued that the
students had failed to enroll before the deadline, that they had academic deficiencies, and that
the school had the right to discipline its students.
The court found that the school had never conducted proceedings of any sort to determine
whether the students had indeed led or participated in mass actions within the school premises,
which according to the school disrupted classes and were accompanied by acts of vandalism,
coercion, intimidation and slander. The school also failed to show to the court any duly
published rule by which students could be expelled or refused re-enrollment for poor scholastic
standing. Given these findings, the court ruled that the students were denied their right to
continue their studies and were disciplined without due process. However, the court still made
clear that it did not withhold power from educational institutions to impose student discipline.
The imposition of such disciplinary sanctions required observance of procedural due process.
The court laid down the rule:
[D]ue process in disciplinary cases involving students does not entail proceedings
and hearings similar to those prescribed for actions and proceedings in courts of
justice. The proceedings in student discipline cases may be summary; and crossexamination is notan essential part thereof. There are withal minimum standards
which must be met to satisfy the demands of procedural due process; and these are,
132

Villar, et al v. Technological Institute of the Philippines, et al, supra note 130.


G.R. No. L-68288, July 11, 1986.
134
With no mention of age, the three petitioners in this case were simply characterized as students of respondent
National University. Also, the case title indicates that the action was filed by the three students themselves.
133

115
that (1) the students must be informed in writing of the nature and cause of any
accusation against them; (2) they shall have the right to answer the charges against
them, with the assistance of counsel, if desired; (3) they shall be informed of the
evidence against them; (4) they shall have the right to adduce evidence in their
own behalf; and (5) the evidence must be duly considered by the investigating
committee or official designated by the school authorities to hear and decide the
case.135
What this string of cases from Malabanan to Guzman clearly establishes is that students are
guaranteed their constitutional rights within schools. This is a clear victory for students and an
important acknowledgement of their status as citizens. In fact, there was even a statement by the
court that students enjoy like the rest of the citizens the freedom to express their views and
communicate their thoughts to those disposed to listen in gatherings.136
The victories gained by students in the upholding of their fundamental rights and freedoms
while in school and the movement towards some acknowledgment of their role within the
educational system took a significant step back in 1988 with the case of Alcuaz, et al v.
Philippine School of Business Administration, et al137 where the court seemed to revert to its
original stance of sanctioning the all-embracing authority of schools over students. In this case,
the court considered the issue of rights of students as a question of contractual obligations thus
moving away from constitutional standards. The case involved students138 who were prohibited
from re-enrolling on account of their participation in demonstrations or protests characterized by
the school as anarchic rallies. The students argued that they were not given due notice and a
fair and proper hearing before being barred from re-enrolment, which amounted to their
expulsion. Furthermore, the students argued that the acts of the school constituted a violation of
their constitutional rights of expression and assembly. In ruling against the students, the court
decreed:
It is beyond dispute that a student once admitted by the school is considered
enrolled for one semester.It is thus evident that after the close of the first
semester, the [school] no longer has any existing contractwith the
students.Such being the case, the charge of denial of due process is untenable. It
135

Guzman, et al v. National University, supra note 133.


Malabanan v. Ramento, supra note 127.
137
G.R. No. 76353, May 2, 1988.
138
Without any mention of their ages, the students were identified as bonafide students of the Philippine School of
Business Administrationan institution of higher learning education. The case was filed by the students
themselves without any indication of being assisted or represented by their parents.
136

116
is a time-honored principle that contracts are respected as the law between the
contracting parties. The contract having been terminated, there is no more contract
to speak of. The school cannot be compelled to enter into another contract with
said students and teachers. The courts, be they the original trial court or the
appellate court, have no power to make contracts for the parties (citations
omitted).139
In construing the issue of rights of students within schools as a question of contractual
obligation, the court clearly went against precedents that resolved such cases as constitutional
matters. In effect, by upholding the supposed contract between the students and the school, the
court simply endorsed the latters all-embracing authority over the former.140 However, two
years later, this was overturned and dismissed as doctrinal error141 through Non v. Dames.142
This case once again, involved students143 who were denied readmission or re-enrollment after
leading and participating in student protests against the school. After setting aside as misplaced
the ruling that the issue of the rights of students within schools was a contractual question, the
court reiterated the settled principle of protecting students rights to free speech and peaceable
assembly as guaranteed by the Constitution. Citing the leading case of Malabanan, the court
ruled:
[Students] invoke their rights to peaceable assembly and free speech. They are
entitled to do so. They enjoy like the rest of the citizens the freedom to express
their news and communicate their thoughts to those disposed to listen in gatherings
such as was held in this case. They do not, to borrow from the opinion of Justice

139

Alcuaz, et al v. Philippine School of Business Administration, et al, supra note 137.


This case was, however, met with rebuke in a strongly worded dissenting opinion, Dissenting Opinion of Justice
Abraham F. Sarmiento, Alcuaz, et al v. Philippine School of Business Administration, et al, G.R. No. 76353, May 2,
1988 that argued that the case had to be treated as a serious constitutional question rather than a simple case of
contractual relations and extinguishment of contract. Significantly, the dissent expressly recognized the role of
students within the educational environment, especially in situations of disagreement with the administration:
There is no doubt that in the case at bar, a controversy had been raging on campus, a controversy serious enough
to force a school-student dialogue. Obviously, it was not a case of a few hotheads on a rampage on the school
grounds, but apparently, student leaders seeking redress for some legitimate grievance. I think that the respondent
College was overreacting when, rather than confront the petitioners, it threatened them with disciplinary action.
Academic freedom does not mean untrammelled liberty for schools and school authorities.Moreover, the
privilege applies to students as well. Why recognize the schools right to it and deny that of students?
141
Concurring Opinion of Justice Ameurfina Melencio-Herrera, Non v. Dames, G.R. No. 89317, May 20, 1990.
142
G.R. No. 89317, May 20, 1990. This decision was underscored by a concurring opinion from the same jurist
who wrote the vigorous dissent in the prior case of Alcuaz. Expressing vindication, Justice Sarmiento stated: I
have always held that schools are not free to penalize, by administrative sanction or outright expulsion, students on
account alone of the fact that they had taken part in mass actions or assemblies. Students, as all persons, enjoy
freedom of speech and assembly, rights granted by the Constitution, and one nobody may abridge.
143
Once again, there was no mention of the ages of the students in this case. They were simply identified as college
students of private respondent school. The case title also indicates that this action was brought by the students
themselves.
140

117
Fortas in Tinker v. Des Moines Community School District,144 shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate.
While, therefore, the authority of educational institutions over the conduct of
students must be recognized, it cannot go so far as to be violative of constitutional
safeguards.145
Finally, an important illustration of the movement of the court towards an acknowledgment of
the role of children in education and a recognition of their rights within that system is the 1995
decision in Ebralinag, et al. v. The Division of Superintendent of Schools of Cebu.146 As if
coming full circle, this case revisited the same issue of students exercise of freedom of religion
in the schools discussed at the beginning of this sub-section in the case of Gerona147 some thirty
years earlier. As in Gerona, this case involved a group of students148 who were expelled from
their respective schools because of their refusal, on account of their religious beliefs, to take part
in the flag ceremony which included singing the Philippine national anthem, saluting the
Philippine flag and reciting the patriotic pledge. In defending the expulsion orders, the Solicitor
General had strong words against both the students and their religious practices which were
described as bizarre and certain to produce rebellious and anti-social school children and
consequently disloyal and mutant Filipino citizens.149
This time, however, the case was decided in favor of the students. In its ruling, the court relied
on the inviolability of the Bill of Rights using the words of the U.S. Supreme Court that
children do not shed their constitutional rightsat the schoolhouse gate.150 The court held:
The idea that one may be compelled to salute the flag, sing the national anthem,
and recite the patriotic pledge, during a flag ceremony on pain of being dismissed
from ones job or of being expelled from school, is alien to the conscience of the
present generation of Filipinos who cut their teeth on the Bill of Rights which

144

Because the constitutional guarantee of fundamental rights and freedoms in the Philippines, specifically the Bill
of Rights, is patterned after the United States Constitution, decisions of the US Supreme Court with respect to these
issues carry persuasive effect in the Philippines.
145
Non v. Dames, supra note 142.
146
G.R. No. 95770, March 1, 1993.
147
Gerona, et al v. Secretary of Education, et al, supra note 109.
148
Without specifically indicating their ages, the court identified the petitioners in this case as high school and
elementary school students. They were characterized as all minors[and] assisted by their parents who belong to
the religious group known as Jehovahs Witnesses. The case title also indicates that in bringing this action, the
children were represented by their parents.
149
Ebralinag, et al v. The Division of Superintendent of Schools of Cebu, supra note 146.
150
Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506 (1969).

118
guarantees their rights to free speech and the free exercise of religious profession
and worship.151
Although this was a clear case of upholding a constitutional right of students within the school
system, it is worth noting that the court was conspicuously cautious in its ruling.152 After
deciding in favor of the students, the court situated its decision within the socializing role of
schools. Thus, while the right of students to exercise their religion was to be respected, the
power of the school to discipline remained if [students] should commit breaches of the peace
by actions that offend the sensibilities, both religious and patriotic, of other persons.153 The
court even issued this admonition:
It is appropriate to recall the Japanese occupation of our country in 1942-1944
when every Filipino, regardless of religious persuasion, in fear of the invader,
saluted the Japanese flag and bowed every Japanese soldier. Perhaps, if petitioners
had lived through that dark period of our history, they would not quibble now
about saluting the Philippine flag.
xxx
[W]e hope, nevertheless, that another foreign invasion of our country will not be
necessary in order for our countrymen to appreciate and cherish the Philippine
flag.154
This caveat seemed to imply that the students did not appreciate and cherish the Philippine flag,
contradicting the courts own ruling that the actions of the students were not specifically aimed
against the Philippine flag per se but were a legitimate exercise of their religion. Clearly, the
court wanted to underscore that although the fundamental right to exercise religion was
sustained in this case, the educational and disciplinary functions of schools over children
remained.
Similarly, the courts denial of the Motion for Reconsideration155 filed in this case reiterated the
same function of education but constrained by the fundamental right of students to the free
exercise of their religion. The court declared:
151

Ebralinag, et al v. The Division of Superintendent of Schools of Cebu, supra note 146.


In fact, the court even declared: Our task here is extremely difficult, for the 30-year old decision of this court in
Gerona upholding the flag salute law and approving the expulsion of students who refuse to obey it, is not lightly to
be trifled with.
153
Ebralinag, et al v. The Division of Superintendent of Schools of Cebu, supra note 146.
154
Ibid.
155
G.R. No. 95770, December 29, 1995.
152

119
No doubt, the State possesses what the Solicitor General describes as the
responsibility to inculcate in the minds of the youth the values of patriotism and
nationalism and to encourage the involvement in public and civic affairs. The
teaching of these value ranks at the very apex of educations high responsibility
of shaping up the minds of the youth in those principles which would mold them
into responsible and productive members of our society. However, the
governments interest in molding the young into patriotic and civic spirited citizens
is not totally free from a balancing process when it intrudes into other
fundamental rights such as those specifically protected by the Free Exercise
Clause (emphasis added).156
3. MAKING SENSE OF THE JUDICIAL RESPONSE TO STUDENTS CLAIMS OF RIGHTS:
RESTRAINED VICTORY
These cases decided by the Supreme Court on claims for the recognition and protection of the
rights of students within the school system demonstrate how the legal system has evolved from a
philosophy of exclusion to a framework of recognition.
The early cases that categorically denied the rights of students within schools were decided with
the straightforward justification that educational institutions had the solemn duty to teach,
develop, produce and discipline students to become responsible and mature citizens and adults.
As a necessary consequence of this educational function, children were seen as dependent,
immature and irresponsible by themselves. In these cases, the court chose to reject the voices of
students by relying on the construction of them as non-beings. Thus, these students were either
mistaken in their beliefs or had limited (or none at all) understanding of these claims for rights.
In the end, they were better served by the socializing function of educational institutions that
prepared them for a life of adulthood and citizenship.
The succeeding cases upholding the constitutional rights of students within schools are
undoubtedly victories for students. The cases clearly establish that students are guaranteed their
fundamental rights and freedoms within schools. Such judicial decisions now acknowledge the
role of students within the process of education and recognize their rights within that system.
This is a clear victory for students and an important acknowledgement of their status as citizens.
By sustaining the fundamental rights and freedoms of students, the court has moved away from
156

Ibid.

120
exclusion towards the direction of recognition. Thus, within the established power of
educational institutions, there is a limit to their authority when confronted with constitutionally
protected rights.
However, without detracting from the significance of these victories for students, it should also
be clear that these decisions have had limited impact precisely because they exclusively deal
with fundamental rights and freedoms that focus on the inviolability of the Bill of Rights in the
Constitution. Although they have created an opening for a broader repositioning of students
within the educational system with respect to these rights, their fundamental value is really in
the triumph of constitutional rights and freedoms. It should also be noted that a majority of these
cases involved older students in institutions of higher learning. Thus, given their exceptional
nature, these court challenges have not promoted systemic changes within education, especially
in the daily experiences of students including younger children157 within schools.
Equally significant, underneath these cases is still the overriding influence of a framework based
upon the overarching socialization function of education. In fact, these constitutionally protected
rights are located within the established power of educational institutions, albeit a limitation to
their authority. Because the court still operates under the framework of the socializing function
of education, schools retain their authority subject only to the limitation of students
constitutional rights. Consistent in these cases is the pronouncement that although these
fundamental rights and freedoms are sustained, the educational and disciplinary functions of
educational institutions over students still remain. Thus, the court, in justifying its rulings and
qualifying their scope, slides into the terrain of the dominant paradigm by reverting to the
language of the solemn duty of educational institutions to teach citizenship and produce mature
and responsible adults.
Given the limitations of these judicial determinations, a more far-reaching transformation of the
daily educational experiences of children will require concrete educational policy reforms, but
as will be shown in the next subsection, such reforms undertaken have had limited effect to date.
157

In fact, in resolving the Motion for Reconsideration of the Ebralinag case, supra note 155, the court seemed to
restrict the impact of the victory of the students when it made a statement that its decision to uphold the right of
students to the free exercise of their religion within schools was partly justified by the unassailable interest of
parents to guide the religious upbringing of their children in accordance with the dictates of their conscience and
their sincere religious beliefs.

121

B. POLICY RESPONSE TO THE ENGAGEMENTS OF STUDENTS:


THE RHETORIC OF PARTICIPATION VS. THE REALITY OF EXCLUSION
This sub-section now looks at how the executive branch has responded to the engagements of
children in the development and implementation of educational policies. Specifically, the subsection examines two major policy programs undertaken by the Department of Education that
have attempted to re-assess and reform the structure and curriculum of basic education in the
Philippines. The first initiative was the Basic Education Curriculum of 2002 (BEC) and the
second, the K+12 Basic Education Program (BEP) carried out in 2011. Set against a legal
environment that has articulated both the dominant and emerging paradigms of education, these
state actions demonstrate the push and pull of the two approaches in the system of education.
These programs initiated by the executive branch are very explicit in their recognition of the
active role of students in the system of education. On the surface, these policies seem to be a
concrete realization of the emerging paradigm that recasts and repositions students within the
educational system. However, this sub-section shows that the expressed recognition of the
participation of children within education in these reforms is contradicted by the very rationales
that have brought about the programs in the first place. The justifications for these programs still
proceed from the dominant understanding of education that is highly focused on the socializing
function of education to the exclusion of children. Students are, in fact, seen as failures and
dependents who need to be developed into responsible and productive adults and citizens
through a proper education.
1. THE CURRICULAR REFORM OF 2002:
THE INVOLVEMENT OF THE CHILD-LEARNER OR A CURE FOR STUDENTS?
Under the legal framework of both the Education Act of 1982 and Governance of Basic
Education Act of 2001, the Department of Education initiated a major curricular reform in
primary and secondary education the Basic Education Curriculum of 2002 (BEC).158
158

Department of Education, The 2002 Basic Education Curriculum in the Philippines (Manila: Department of
Education, 2002).

122
Following the goals and objectives of basic education laid down in the two laws,159 the
Department maintained:
We have to educate our Filipino learners to filter information critically, seek
credible sources of knowledge, and use data and facts creatively so that they can
survive, overcome poverty, raise their personal and national self-esteem, and
realize a gracious life in our risky new world.160
To this end, the BEC laid down its vision of Philippine education:
The ideal Filipino learner in our rapidly changing world is one who is empowered
for lifelong learning, is an active maker of meaning, and can learn whatever s/he
needs to know in any new context. Such an empowered learner is competent in
learning how to learn and has life skills so that s/he becomes a self-developed
person who is makabayan (patriotic), makatao (mindful of humanity),
makakalikasan (respectful of nature), and maka-Diyos (godly).161
Clearly, the BEC intended to transform the system of education by building on the emerging
paradigm where children take on an active role in their educational experience. Thus:

159

The Governance of Basic Education Act of 2001, supra note 28, s. 2 provides in part:
It shall be the goal of basic education to provide them [children] with the skills, knowledge and
values they need to become caring, self-reliant, productive and patriotic citizens.
The Education Act of 1982, supra note 76, ss. 21-23 provide:
Section 21. Objectives of Elementary Education. The objectives of elementary education are:
1. To provide the knowledge and develop the skills, attitudes, and values essential to personal
development and necessary for living in and contributing to a developing and changing social
milieu;
2. To provide learning experiences which increase the child's awareness of and responsiveness to
the changes in and just demands of society and to prepare him for constructive and effective
involvement;
3. To promote and intensify the child's knowledge of, identification with, and love for the nation
and the people to which he belongs; and
4. To promote work experiences which develop the child's orientation to the world of work and
creativity and prepare himself to engage in honest and gainful work.
Section 22. Objectives of Secondary Education. The objectives of secondary education are:
1. To continue to promote the objectives of elementary education; and
2. To discover and enhance the different aptitudes and interests of the students so as to equip him
with skills for productive endeavor and/or prepare him for tertiary schooling.
Section 23. Objectives of Tertiary Education. The objectives of tertiary education are:
1. To provide a general education program that will promote national identity, cultural
consciousness, moral integrity and spiritual vigor;
2. To train the nation's manpower in the skills required for national development;
3. To develop the professions that will provide leadership for the nation; and
4. To advance knowledge through research work and apply new knowledge for improving the
quality of human life and responding effectively to changing societal needs and conditions.
160
Department of Education, supra note 158.
161
Ibid.

123
The design of the [BEC] is based on the principle that there are two main sources
of reliable and meaningful knowledge for contemporary basic education: expert
systems of knowledge and the learners experience in his/her context. The
curriculum has been restructured so that these two main sources will interact with
one another reciprocally, and in this sense, the restructured curriculum is an
interactive one (emphasis added).
This curriculum promotes more mutual interaction between students and teachers,
between students themselves (collaborative learning), between students and
instructional materials, between students and multi-media sources, and between
teachers of different disciplines (collaborative teaching).162
By recognizing the experiences of a child as a definitive source of knowledge for educational
policy, the BEC, in very concrete terms, acknowledged children as social actors whose
interactions produce consequences. Such a view highlighted childrens meaning-making
capacity allowing for the opportunity to assert their participation. Also, because of the value
accorded to the child-learner, education was no longer construed as a one-way, top-to-bottom
process. Accordingly, the BEC refashioned the role of the teacher as a trustworthy facilitator or
manager of the learning process.She enables learners to become active constructors of
knowledge and not passive recipients of information.163 The BEC explained:
The ideal teacher helps students to learn not primarily answers but how to reflect
on, characterize and discuss problems, and how, on their own initiative, they can
form or find valid answers. It is learning how and not just what, in order that
learners do the work themselves and thus have an experience of genuine
democracy, where people have not only rights but also responsibilities.164
The BEC initiative promoted a curriculum that was less prescriptive and detailed and more
flexible. Because of concerns with curriculum overcrowding and a one-size-fits-all
approach165 of the then existing educational curriculum, the BEC was designed as a system that
allowed for more innovative instructional strategies. This transformed the teaching-learning
endeavor as an interactive process. The focus was to be on students growth in learning over
time, emphasizing performance and application, rather than knowledge.166 This clearly

162

Ibid.
Ibid.
164
Ibid.
165
Ibid.
166
Ibid.
163

124
recognized the participation of children in their education and encouraged them to participate
even more actively in their learning experiences.
The expressed design of the BEC was indeed a clear recognition of the participation of children
in education indicative of the emerging paradigm. However, despite its recognition of the active
role that children play in their education, the reform was actually constrained by the dominant
understanding of education. In its official documents, the Department of Education admitted that
this curricular reform was really pursued to help raise the achievement level of students.167 As a
remedy to the characterization of children as being in danger, the BEC not only [sought] to
cure the inability of students who cannot read with comprehension at grade 3 and worse, at
grade 6168 but also to teach students to become developed persons (emphasis added).169 This
showed that the underlying impetus for this curricular reform stemmed from the Departments
belief of what children need to become i.e., mature and rational beings who can survive in the
real world. This, in effect, has negated the supposed active role of children in the process of
transforming the educational system. The Institute on Church and Social Issues of the Ateneo de
Manila University has stated that the curriculum overhaul was undertaken because:
In recent years, the proficiency level of Filipino students has gone down to
alarming levels. The latest National Elementary Assessment Test (NEAT) and
National Secondary Assessment Test (NSAT) results show the very poor standing
of students in the core subjects. Although the Philippines has a high basic literacy
rate, students, even those in high school, often have problems reading or
understanding the things they read, much more, apply what they have learned.170
These policy considerations revealed that the Department of Education was heavily influenced
by the dominant paradigm that imposes a proper education on children as a blanket
prescription. Such an understanding, leading to a reliance on standardized attainment targets, has
relegated children once again to the status of passive recipients of education.171 Consequently,
this has undermined the expressed inclusive and participative objective of the program.

167

Ibid.
Department of Education Order No. 25, s. 2002, June 17, 2002.
169
Department of Education, supra note 158.
170
Institute on Church and Social Issues, Ateneo de Manila University, Education Integration online: Child
Protection
in
the
Philippines:
Philippine
Resource
Network
<http://www.childprotection.org.ph/monthlyfeatures/archives/oct2k2b.html>.
171
James and James, supra note 25 at 125 see an explicit link between standardized testing and a developmental
model of childhood. According to them, a focus on standard attainment targets sees childhood as a preparation for
168

125

As well, although the BEC claimed to reformulate education as a system that operates from the
bottom-up, the program itself was the result of a highly centralized curriculum reform process172
characteristic of the dominant paradigm. In fact, even though the Governance of Basic
Education Act of 2001 introduced a framework of contextualized governance, the BEC was
undertaken through the still highly centralized and hierarchical structure of the Department of
Education173 where the powers of the national government under the Secretary of Education174
and the Bureaus of Elementary175 and Secondary176 Education to formulate, develop, and
evaluate programs and educational standards including curricular designs177 have remained.
This centralized and hierarchical system of education under which the BEC was formulated has
raised concerns about the program; and has undermined its claims of including children and
recognizing their participation within education.178 In fact, the school environment, even with
the BEC, has continued to be characterized as both authoritative and hierarchical179 clearly the
adulthood by establishing a set of predictive indicators that will reveal the contribution children will make to
society as future adults.
172
Allan Bernardo and Rizalyn Mendoza, Makabayan in the Philippine Basic Education Curriculum: Problems
and Prospect for Reforming Student Learning in the Philippines in Chi-Hung Ng and Peter Renshaw, eds,
Reforming Learning: Concepts, Issues and Practice in the Asia-Pacific Region (Netherlands: Springer Netherlands,
2009).
173
See e.g. Ma. Cynthia Rose B. Bautista, Allan B.I. Bernardo, and Dina Ocampo, When Reforms Dont
Transform: Reflections on Institutional Reforms in the Department of Education (Quezon City, Philippines: Human
Development Network, 2010) at 59-60 who argue that despite the presence of the current law with a framework of
decentralized educational bureaucracy, the Department of Education remains resistant to change as apparent in its
unwillingness to adopt approaches, processes and procedures that worked effectively in reform projects.
174
Governance of Basic Education Act of 2001, supra note 28, s. 7 provides:
The Secretary has authority, accountability and responsibility for the following:
(1) Formulating national educational policies:
(2) Formulating a national basic education plan;
(3) Promulgating national educational standards;
(4) Monitoring and assessing national learning outcomes;
(5) Undertaking national educational research and studies;
(6) Enhancing the employment status, professional competence, welfare and working conditions of
all personnel of the Department; and
(7) Enhancing the total development of learners through local and national programs and/or projects.
175
Education Act of 1982, supra note 76, s. 62.
176
Ibid., s. 63.
177
Ibid., ss. 62(1) and (2); 63(1) and (2).
178
See e.g. Bernardo and Mendoza, supra note 172. They have identified a number of circumstances that
undermine the implementation of the BEC including: 1) lack of involvement of teachers in the reform process, in
part, because they have not been quick to acquire new teaching approaches and partly because their working
environment does not fully support a change in pedagogical approaches e.g. extensive and highly prescriptive
monitoring and surveillance, non-transparent incentive systems, and lack of material and organizational support
from administrators; and 2) the other more detailed curriculum-related documents that actually determine how the
curriculum is given life in classrooms were not addressed during the curriculum reform process and prior to its
implementation.
179
Yacat and Ong, supra note 29.

126
opposite of inclusion and participation. This obviously negates the expressed objectives of the
BEC. Thus, contrary to the vision of the BEC, Velayo finds that: In the classroom, the students
are expected to follow the teachers instructions.Children lack the position to ask questions or
challenge adult authority; rather they recognize the need to succumb to authority.180 These
circumstances surrounding the BEC demonstrate that despite the programs expressed
endorsement of the emerging paradigm, it has still functioned under the dominant paradigm.
In the end, Bernardo and Mendoza provide an insightful assessment of the BEC:
[I]t would not be fair to say that the BEC has failed. Although the BEC has not
fully articulated and realized the themes of the curricular and learning reforms, it
has, in a rather forceful way, called the attention of the educational sector to an
alternative way of thinking about learning in schools, and to the role of
curriculum in this process.Thus, although the BEC is not likely to directly
result in improved student learning in primary and secondary schools in the
country, it has provided a new vocabulary and philosophy for allowing
Philippine schools to better address student learning in years to come.181
2. THE CURRENT REFORM TO BASIC EDUCATION:
AN INCLUSIVE SYSTEM OR AN IMPOSING SCHEME?
The educational curriculum under the BEC had undergone a number of revisions since its
original implementation in 2002.182 The latest of these revisions is the current Enhanced K+12
Basic Education Program (BEP).183 At the beginning of the 2011-2012 school year, the
Department of Education implemented a major restructuring of basic education in the
Philippines through the BEP. Previously, basic education was composed of six (or optional
seven) years of elementary education and four years of high school/secondary education for a
total of 10 years education. With the BEP, students now go through universal kindergarten and a
180

Velayo, supra note 29 at 194.


Bernardo and Mendoza, supra note 172 at 195.
182
The reality is that each Secretary of Education brings a new set of policies to implement within the Department
derailing any long term educational policy.
183
Prior to the BEP, there were other educational reforms undertaken by the Department of Education. At the
beginning of the 2005-2006 school year, the Department of Education initiated the Schools First Initiative. This
was a package of policy reforms that that attempt[ed] to significantly enhanceefforts at improving the quality of
education in [the] country. As a reform package, it had three components: 1) enhancement of learning; 2) more
resources for learning; and 3) focused organization for learning. Just a year later, the Department of Education then
rolled out the Basic Education Sector Reform Agenda (2006-2010) with five key reform thrusts focused on:
schools, teachers, social support to learning, complementary interventions, and the Department of Educations
institutional culture.
181

127
12-year basic education program, thus K+12. This 12-year program is composed of six years of
elementary education, four years of junior high school and two years of senior high school.
Following this structural reform, a new curriculum has also been introduced beginning the 20122013 school year. Each school year, particular grades will be phased into the revised structure
and curriculum of the BEP with the end goal of having all the 12 grades fully implemented by
the 2017-2018 school year.
The BEP is heralded as an extensive and bold reform to basic education in the Philippines.184 By
pushing for this educational reform, the Department of Education intends to raise the quality of
basic education through the enhancement of the curriculum and the expansion of the basic
education cycle.185 In this manner, the State fulfills its responsibility of establish[ing],
maintain[ing], and support[ing] a complete, adequate, and integrated system of education
relevant to the needs of the people and society.186
Undoubtedly, the BEP draws upon the emerging paradigm of education. This is evident in an
expansive curriculum that is more inclusive in terms of content and performance standards.
Thus, the content standards of the curriculum define not only what students are expected to
know (knowledge: facts and information) and what they should be able to do (process or skills)
with what they know,187 but also the meanings or understandings that they construct or make
as they process the facts and information.188 As well, the performance standards that define the
proficiency level of students are expressed in two ways: students should be able to use their
learning or understanding in real-life situations; and they should be able to do this on their
own.189 These standards clearly recognize students as active participants in their education
where their meaning-making capacity is acknowledged.
To institutionalize this recognition of the more participative role of students in their education,
particularly in the educational curriculum, the Department of Education has, in fact, pushed for
184

Journal of the Republic of the Philippines Senate, Session No. 22, October 8, 2012.
Department of Education, Discussion Paper on the Enhanced K+12 Basic Education Program online:
Department of Education <http://www.deped.gov.ph/cpanel/uploads/issuanceImg/K12new.pdf> at 5.
186
Constitution, supra note 59, art. XIV, s. 2(1).
187
Implementing Guidelines of Grades 1-10 to Enhanced Basic Education Curriculum, Department of Education
Order No. 31, s. 2012, April 17, 2012 at 1.
188
Ibid.
189
Ibid.
185

128
legislation articulating this framework. The proposed parallel law currently pending in
Congress190 that would implement the BEP precisely recognizes the realities of the child and the
diversities of the childhood experience as the bases for the setting of an enhanced curriculum.
The proposed law191 provides:
The [Department of Education] shall adhere to the following standards and
principles in developing the enhanced basic education curriculum:
(a) The curriculum shall be learner-centered, inclusive and developmentally
appropriate;
xxx
(d) The curriculum shall be relevant, responsive and research-based. The basic
curriculum shall be adapted locally to the languages, cultures and values of
Filipino learners in order to aid teachers in planning lessons which build what the
learners already knew;
xxx
(g) The curriculum shall be integrative, contextualized, broad-based and global;
(h) The curriculum shall use pedagogical approaches that are constructivist,
inquiry-based, reflective, collaborative and integrative;
xxx
190

During the writing of this thesis, the proposed legislation embodying the BEP was passed and signed into law by
the President on May 15, 2013. Republic Act No. 10533 (2013) An Act Enhancing the Philippine Basic Education
System by Strengthening its Curriculum and Increasing the Number of Years for Basic Education, Appropriating
Funds Therefor and for Other Purposes [Enhanced Basic Education Act of 2013].
191
The recently signed law contains substantially the same provision on an enhanced basic education curriculum.
Ibid, s. 5 provides:
The DepED shall adhere to the following standards and principles in developing the enhanced basic
education curriculum:
(a) The curriculum shall be learner-centered, inclusive and developmentally appropriate;
(b) The curriculum shall be relevant, responsive and research-based;
(c) The curriculum shall be culture-sensitive;
(d) The curriculum shall be contextualized and global;
(e) The curriculum shall use pedagogical approaches that are constructivist, inquiry-based,
reflective, collaborative and integrative;
(f) The curriculum shall adhere to the principles and framework of Mother Tongue-Based
Multilingual Education (MTB-MLE) which starts from where the learners are and from what they
already knew proceeding from the known to the unknown; instructional materials and capable
teachers to implement the MTB-MLE curriculum shall be available;
(g) The curriculum shall use the spiral progression approach to ensure mastery of knowledge and
skills after each level; and
(h) The curriculum shall be flexible enough to enable and allow schools to localize, indigenize and
enhance the same based on their respective educational and social contexts. The production and
development of locally produced teaching materials shall be encouraged and approval of these
materials shall devolve to the regional and division education units.

129
(m) The curriculum shall be flexible enough to enable and allow schools to
localize, indigenize and enhance the same based on their respective educational
and social contexts. The production and development of locally produced teaching
materials shall be encouraged and approval of these materials shall devolve to the
regional and division education units (emphasis added).192
The standards and principles laid out in this proposed law translate into a participative and
inclusive educational curriculum that repositions children as more than passive recipients of
education. This endorses the active role of children within the educational community and the
value of their engagements within the system clear indications of the emerging paradigm.
However, upon further analysis it becomes clear that the BEP is still heavily influenced by the
dominant paradigm that focuses on the socializing function of education. As stated in its goals,
the primary objective of the BEP is to create a functional basic education system that will
produce productive and responsible citizens equipped with the essential competencies and skills
for both life-long learning and employment (emphasis added).193 This future-looking
construction of children is expressed by what the BEP envisions as the results of an enhanced
education:
An individual who has learnedthe competence to engage in work and be
productive, the ability to coexist in fruitful harmony with local and global
communities, the capability to engage in autonomous critical thinking, and the
capacity to transform others and ones self.194
In fact, the BEP states that its objective is to prepare children for the future where they will be
able to think for [themselves] and make sound decisions on the best courses of action to take in
the different circumstances of [their lives] (emphasis added).195 It clearly uses the language of
the dominant paradigm when it declares that education must prepare the child to be ready to

192

House Bill No. 6643 introduced by Reps. Escudero, Angara, Belmonte (F.), Piamonte, Teodoro, Gonzales (N.),
Magsaysay (E.), Rodriguez (R.), Palmones, Bagasina, Climaco, Herrera-Dy, Dimaporo (F.), Co, Batocabe, Garbin,
Alcala, Calixto-Rubiano, Sakaluran, Castro, Ocampo, Aumentado, Biazon, Cortuna, Abaya, Almario, Sarmiento
(M.), Arago, Yap (S.), Lagman, Abayon, Cerafica, Velarde, Teves, Gullas, Mercado (R.), Almonte, Garin (S.),
Gunigundo, Banal, Sy-Alvarado, Agyao, Dalog, Tinga, Asilo, Castelo, Espina, Zamora, Balindong, Gonzalez,
Evardone, Flores, Lacson-Noel, Jalosjos (R.), Briones, Lagdameo (M.), Noel And Limkaichong, Per Committee
Report No. 2438, An Act Enhancing the Philippine Basic Education System by Strengthening Its Curriculum and
Increasing the Number of Years for Basic Education, Appropriating Funds Therefor and for other Purposes.
193
Department of Education, supra note 185 at 7.
194
Ibid at 6.
195
Ibid.

130
take his or her place as a productive member of society.196 As such, the BEP reinforces the
view that children are the passive recipients of education where they simply receive an
education based on an enhanced and decongested curriculum.
Equally significant, the BEP maintains universalized conceptions of children and childhood by
declaring that its objective is to provide an education that fulfills the basic learning needs of all
students; is geared towards excellence; and is internationally recognized and comparable.197 As
James and James correctly observe, a universal and monolithic version of the educational needs
of children is, in essence, a societal prescription of what children need in order to secure their
future as adult citizens.198
Closely related to this homogenization of the educational experience of children, the BEP also
reinforces a developmental view of children that depends heavily on assumptions about the
relationship between age, competence and future contributions to society. The BEP declares that
basic education requires restructuring by the addition of two years of schooling because as it
currently stands most graduates are too young to enter the labor force (emphasis added).199
Thus, if they do not pursue higher education, these children would be unproductive or be
vulnerable to exploitative labor practices.200 The BEP further asserts that psychologists and
educators say that children under 18 are generally not emotionally prepared for entrepreneurship
or employment or higher education disciplines.201 These rationalizations for the BEP clearly
demonstrate the heavy influence of the dominant paradigm.
Equally important, the justification used by the Department of Education for the BEP
undermines its claim of recognizing the active role of students in educational policies. In
promoting the BEP, the Department of Education sees the dismal results of both national and
international standardized tests as a characterization of children as failures. Such a
characterization, in fact, endorses a construction of children as passive recipients of education.
The Department of Education states:
196

Ibid.
Ibid at 7.
198
James and James, supra note 25 at 122.
199
Department of Education, supra note 185 at 4.
200
Ibid.
201
Ibid. But see the next Chapter on Labor for a comprehensive discussion of the relationship between working
children and the school.
197

131
The poor quality of basic education is reflected in the low achievement scores of
Filipino students. Many students who finish basic education do not possess
sufficient mastery of basic competencies.The National Achievement Test (NAT)
for grade 6 in SY 2009-2010 passing rate is only 69.21%. Although this is already
a 24% improvement over the SY 2005-2006 passing rate, further reforms are
needed to achieve substantial improvement. The NAT for high school is 46.38% in
SY 2009-2010, a slight decrease from 47.40% in SY 2008-2009.
International tests results like 2003 TIMSS (Trends in International Mathematics
and Science Study) rank the Philippines 34th out of 38 countries in HS II Math and
43rd out of 46 countries in HS II Science; for grade 4, the Philippines ranked 23rd
out of 25 participating countries in both Math and Science. In 2008, even with only
the science high schools participating in the Advanced Mathematics category, the
Philippines was ranked lowest.202
Clearly, the Department of Education has used these performance indicators to quantify the
(in)competence of children.203 As such, the test results reflect the failure of children to achieve
what they should be capable of doing at particular stages of their development. This is reflective
of the exclusionary and universalizing construction of children characteristic of the dominant
paradigm. This then justifies action on the part of the state to remedy the situation by
determining the proper education for children and imposing changes to the educational system
that it deems necessary for children to become204 productive and responsible adults.
Accordingly, this educational reform is constrained by what is expected of young people and
what is in effect natural for them.205
3. EDUCATIONAL POLICY REFORMS AND THE PARTICIPATION OF CHILDREN:
MUTED VICTORY
In the end, both of these policy reforms initiated by the Department of Education presented in
this sub-section demonstrate how, on the one hand, the state has expressed its desire to move
202

Ibid at 3.
On the issue of performance indicators, Bautista, Bernardo and Ocampo, supra note 173 at 74 find that: The
most important metric to develop, however, relates to student learning. Earlier studies have revealed fundamental
problems in [the Department of Educations] systems for assessing student learning and in [the Department of
Educations] internal capacity to maintain an adequate educational assessment system.[S]ome schools are
helping students achieve much higher levels of attainment that are not being measured by [the Department of
Educations] existing tests and measures.
204
The literature on childhood studies is replete with discussions on how children have been viewed as
becomings rather than beings. See e.g. Chris Jenks, Childhood, 2d ed (London: Routledge, 2005).
205
Roger Smith, Doing Justice to Young People: Youth Crime and Social Justice (Oxon: Willan Publishing, 2011)
at 16.
203

132
towards the recognition of the participation of students in the system of education, but on the
other, it is still highly focused on the socializing function of education to the exclusion of
children. Although there is an expressed effort to involve students in the institution of a system
of education relevant to their needs as evidenced by changes in content and performance
standards, this is, nevertheless, contradicted by the underlying rationalizations used by the
Department for its policy reforms. These justifications rely on a framework that is based on the
overarching authority of education to develop and produce productive and responsible citizens
and adults. As such, the actual engagements of students are dismissed as failures which, in
turn, legitimizes their perceived inherent vulnerability and dependency. Thus, students are
merely treated as the targets of educational policies that seek to cure them of their inadequacies
and prepare them to take their place as a productive member of society. In the end, the
educational experience of students will remain to be authoritative and hierarchical negating the
claim of recognizing their participation within the educational system.
V. CONCLUDING REFLECTIONS:
MOVING FORWARD
The effect of the educational system on the lives of children is undeniable. This is even more
evident in a country where people are heavily dependent on education as their primary source of
learning.206 It is typical for parents in the Philippines to tell their children edukasyon lang ang
maipamamana namin sa iyo (education will be our only legacy to you), highlighting the value
of education in society.207 In fact, the school is considered a strong institutional power in the
country.208
As demonstrated in this chapter, there is an intricate Philippine legal environment with respect
to education. Although there is a strong presence of the dominant understanding of education
articulated in the solemn duty of educational institutions to prepare the child for the
responsibilities of adulthood, there is also a distinct attraction in the law to the emerging
paradigm where the role of students within education is acknowledged and their rights within
206

See e.g. Education Act of 1982, supra note 76, s.19 and Governance of Basic Education Act of 2001, supra note
28, s. 2.
207
Yacat and Ong, supra note 29.
208
Velayo, supra note 29.

133
the system recognized. The interplay of these frameworks has been exhibited in, among others,
the judicial determination of the fundamental rights and freedoms of students within the school
system and the educational policy reforms initiated by the executive branch.
Moving forward, we must clearly recognize that there is so much promise in the emerging
paradigm to transform not only the Philippine educational system in general but also the
educational experiences of the Filipino child in particular. The fact that the effects of this
emerging framework have been limited and undermined clearly demonstrates how the discourse
of children and childhood influences the recognition of and opportunities for the participation of
children within the educational system.
The value of the emerging paradigm is the possibility that it opens up for the state to shift its
focus from the socializing function of educational institutions towards the recognition of the
interdependent engagements of the different members of the educational community including
children. Thus, the framework does not simply involve looking to children. More importantly, it
reformulates the purpose of education as a shared undertaking, which challenges the
overarching authority of educational institutions. As such, in reformulating education in the
Philippines to push for the participation of children, we must draw upon indigenous relational
connections evocative of the kapwa philosophy where all the members of the educational
community are engaged with their system of education. This is accomplished not only through
the exercise of rights but also through the establishment of connections as expressed in
reciprocal responsibilities and relationships.
To be sure, the recognition of the engagements of each member of the educational community,
including children, does not mean unabridged license. It is a privilege that assumes a correlative
duty to exercise it responsibly drawing on the relational framework of shared purposes. In fact,
as underscored throughout this thesis, the participation of children respects the relationships
formed and maintained between children and the people around them in the environment that
they are in. This implies that within the educational setting, claims of rights of students
establish, engage and respect the connections that they have with the educational community.
Far from being unfettered choice, these assertions entail interdependency, which according to

134
Minow signal[s] and strengthen[s] [an individuals] relation to a community.209
For example, the claims brought by students in the judicial cases were specifically treated by the
court as constitutional questions. On one level, they are, indeed, claims by students for the
recognition of their fundamental rights and freedoms. But on another level, they are also claims
for an acknowledgment of their participation within education. The rights claim of the students
is their way of negotiating new boundaries and connections between themselves, the school and
the state. This participation entails not only exercising their rights but also owning up to their
responsibilities and establishing relationships. By seeking a redefinition of the boundaries of the
school system to recognize the exercise of their rights, the students are making a claim for the
educational system to acknowledge their voice. Minow expounds on understanding these
assertions of rights, especially by students within the educational system:
When advocates for children ask a court to recognize childrens rights to privacy,
due process, or other protections, they seek judicial statements that will articulate
new boundaries and connections between children and adults. They seek the
chance to use these judicial articulations to negotiate new relationships between
children and adults in the arrangements of daily life.
Rights provide a language that depend upon and express human interconnection
at the very moment when individuals ask others to recognize their separate
interests.
The language of rights thus draws each claimant into the community and grants
each a basic opportunity to participate in the process of communal debate. The
discourse of rights registers commitment to a basic equality among the participants
as participants, even when the participants are children.
The equality embodied by rights claims is an equality of attention.Rights as
words and as forms structure attention even for the claimant who is much less
powerful than the authorities, and even for individuals and groups treated
throughout the community as less than equal.210
To construe these claims as more than an assertion of constitutional rights provides an
appreciation of the students intimate connections to the educational community where they
implicitly invest themselves in a larger community, even in the act of seeking to change it.211
209

Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (New York: Cornell
University Press, 1990) at 294.
210
Ibid at 296-297.
211
Ibid at 294.

135
A crucial context not to be overlooked in all the court cases is the reciprocity of responsibilities.
While the rights of these students are not only an inevitable part of the process of attending
school [but] also an important part of the educational process,212 these rights are not to collide
with the rights of others.213 In this formulation, the students are protected in the exercise of their
rights but imbued with the responsibility of respecting the rights of others. Thus, the recognition
of the assertions of these students denotes a similar regard for the claim of others.214 This
signifies an understanding of the participation of children that values the relationship with the
other.215 In fact, the assertions of these students clearly demonstrate how they themselves
recognize their connection with the entire school community. The students in the 1995
Ebralinag216 freedom of religion case purposely argued:
[W]hile [we] do not take part in the compulsory flag ceremony, [we] do not engage
in external acts or behavior that would offend [our] countrymen who believe in
expressing their love of country through the observance of the flag ceremony.
[We] quietly stand at attention during the flag ceremony to show [our] respect for
the right of those who choose to participate in the solemn proceedings.217
With respect to the policy initiatives of the Department of Education, it is clear that these were
undertaken because of certain shortcomings in the educational system. The Department of
Education has understood these as the failings of students. Such understanding is not only
restrictive but also misleading. But with the shared purpose framework that de-emphasizes the
overriding authority of education in society and values the interdependent engagements of the
educational community including students, these shortcomings could, in fact, be acknowledged
as failures of the system itself. Thus, it should be understood that the students themselves, using
the very same measures devised by the State, have engaged with the system by expressing their
rejection, appreciation or even indifference to the education that they have been receiving. The
fact that these engagements of children within the educational system, albeit not necessarily in
the way the state intended, have pushed the Department of Education to re-examine its
educational policy should have signaled, as put by James and James, the importance, if social
policies are to be successful, of acknowledging the very real contributions of childrens agency
212

Malabanan v. Ramento, supra note 127.


Ibid.
214
Minow, supra note 209 at 294.
215
See the discussion of the indigenous concept of kapwa as a representation of the other in Section IV of the
Family Chapter.
216
Ebralinag, et al v. The Division of Superintendent of Schools of Cebu, supra note 146.
217
Ibid.
213

136
to the achievement of desired outcomes.218 By understanding the moves of the Department of
Education as concrete responses to the engagement of students, children are shown to be agents
whose interactions with others make a difference to a relationship or to a decision, to the
workings of a set of social assumptions or constraints.219 The Department of Education cannot
simply dismiss children as the mere targets of its policies and reforms. At the heart of these
initiatives are children who have maintained an active, involved and intimate role in the shaping
of their educational experiences. McDonald correctly points out:
[P]olicy which fails to engage with children may miss the point of who children
think they are and what children want. It may, for example, imagine identities
which do not or at best, partially exist. Re-stated epistemologically, such
misidentification in policy underscores what the new sociologists of childhood
have been trying so hard to tell us that policy knowledge misreads children, in
particular with regard to childrens competence and agency. More importantly (and
shifting to the ontological level), failure to understand how policy operating as
welfare discourse shapes identity also contributes to failure to understand how they
shape the materiality of childrens lives. Misrecognition at this level can have a
range of consequences. It may, for example, inadvertently and inappropriately
totalise the social category of children and constrain our capacity to acknowledge
and respond to difference (citations omitted).220
Significantly, the role of students in the educational system cannot simply be dismissed as
incidental for the inherent vulnerability which we perceive in children is not an objective
definition of their capacity.221 Along these lines, Christensen aptly argues: [T]he construction
of children as essentially vulnerable tends to exclude consideration of the cultural and social
context in which vulnerability is constituted and to render childrens own understandings of
themselvesas unimportant.222 The specific instances laid out in this chapter that have evoked
a state response must be seen as a demonstration of the engagements of children. Children,
whether we see them this way or not, are participants in the education system and are engaged
with it. They are the individuals who actually live out educational policies and they inevitably
respond to these power, authority and value systems,223 be it through rejection, appreciation,
indifference, disobedience or demands for change.
218

James and James, supra note 25 at 126.


Mayall, supra note 50 at 21.
220
McDonald, supra note 35 at 242.
221
Gerison Lansdown, Childrens Rights to Participation and Protection: A Critique in Christopher Cloke and
Murray Davies, eds, Participation and Empowerment in Child Protection (London: Pitman Publishing, 1995).
222
Pia Christensen, Childhood and the Cultural Constitution of Vulnerable Bodies in Alan Prout, ed, The Body,
Childhood and Society (Great Britain: Macmillan Press Ltd., 2000) at 38.
223
James and James, supra note 25 at 118.
219

137
CHAPTER III
THE CHILD, LABOR AND THE LAW
[C]hildhood is endowed with certain inherent and
inalienable rights, among which are freedom from toil for
daily bread.
[W]e declare ourselves to be helpless and dependent;
that we are and of right ought to be dependent, and that
we hereby present the appeal of our helplessness that we
may be protected in the enjoyment of the rights of
childhood.
[W]e demand the restoration of our rights by the
abolition of child labor.1
[W]e are committed to promoting our rights, developing
actions aimed at reducing poverty, and improving our
working conditions; we are committed to fighting against
child trafficking and exclusion, and also against violence
perpetrated against children and working children in
particular.
We promote and defend the dignified work of children.
We are the main actors in changing our working and
living conditions.
We ask for more consideration and respect of our rights by
our governments and by all the peoples. We would like
them to support us and to see us as children who have
rights, as all other children have. They must listen to us
and they must involve us in the decision-making processes
that concern us: our proposals must be taken into account.
Other children have to accept us and see us as brothers
and sisters.2
These two statements are instructive because they set up the conversation on the conflicting
positions about children and work. Although both passages use we, an important qualifier is
that they come from two distinct sources. Articulated almost a century apart, the former is the
battle cry of campaigners on behalf of working children formulated in the early 1900s, while the
latter is an expression by working children themselves made in 2006. These conflicting views
represent the debates surrounding children and work.
1

Declaration of Dependence by the Children of America in Mines and Factories and Workshops Assembled,
National Child Labor Committee 1913. Russell Freedman, Kids at Work: Lewis Hine and the Crusade Against
Child Labor (New York: Clarion Books, 1994) at 91.
2
Final Declaration of the 3rd Meeting of the World Movement of Working Children held in Siena, Italy from
October 15-29, 2006.

138

One view sees children and work as incompatible. The antagonism between these two is
sufficiently articulated in the statement that the term child labour is a paradox for when labour
beginsthe child ceases to be.3 When children work or in the words quoted above, toil for
daily bread childhood itself is violated. From this perspective, children are clearly seen as
victims. Because of this vulnerability, they have to be protected by prohibiting them from
entering the adult world of work. The state then, as parens patriae, is under the obligation to
protect those of tender years.4 An essential part of the states responsibility to act as the
father of his country5 is ensuring that children remain in a special and separate world,
regulated by affection and education, not work or profit.6 By keeping children away from work,
the state preserves their childhood.
In contrast, the opposing view acknowledges not only the capacity of children to work but also
the reality that they are already in the work force. This position, in fact, recognizes the right of
children to work, albeit with dignity and freedom from exploitation. On this view, children are
seen as involved participants in the labor force with rights as workers and citizens.
To a great extent, the legal and policy frameworks in the Philippines, a country in which there
are in fact millions of working children,7 are based on the first perspective. Prohibition of child
work is the norm because it is believed that any type of work both harms children and deprives
them of their childhood. A childhood involving work and economic participation goes against
the norm of a happy, innocent and protected childhood. In fact, without requiring actual scrutiny
of whether a particular form of child work is harmful or not, the legal system subsumes all
3

Hugh Cunningham, The Rights of the Child and the Wrongs of Child Labour An Historical Perspective in
Kristoffel Lieten and Ben White, eds, Child Labour: Policy Options (Amsterdam: Aksant Academic Publishers,
2001) at 15.
4
See e.g. Malto v. People, G.R. No. 164733, Sept. 21, 2007; People v. Baylon, G.R. No. L-35785, May 29, 1974.
5
See e.g. Vasco v. Court of Appeals, G.R. No. L-46763, February 28, 1978.
6
Viviana Zelizer, Pricing the Priceless Child The Changing Social Value of Children (New York: Basic Books,
Inc., 1985) at 209.
7
According to the International Labour Organization and the National Statistics Office, in 2011, there were 5.492
million working children from the ages of 5-17 in the Philippines. International Labour Organization (ILO) and the
National Statistics Office (NSO), The Number of Working Children 5 to 17 Years Old is Estimated at 5.5 Million
(Preliminary Results of the 2011 Survey on Children) online: National Statistics Office
<http://www.census.gov.ph/content/number-working-children-5-17-years-old-estimated-55-million-preliminaryresults-2011-survey>. In the previous comprehensive survey undertaken by the National Statistics Office in 2001,
the number of working children from the ages of 5-17 was reported at 4.018 million. National Statistics Office,
2001 Survey on Children 5-17 Year Old Final Report (Philippines: International Labor Organization, 2003) [2001
Philippine Survey].

139
forms of child work under the morally reprehensible label of child labor. With the language of
child labor, the legal system has devised a universal framework based on prohibition and
removal. However, as this chapter argues, such a framework undermines children, their
capacities, realities and personhood. The chapter attempts to show that a simplistic strategy of
prohibition and removal may cause more harm to children, proving the fitting adage of throwing
the baby out with the bath water. These harms include cutting off the means of survival for the
child and the family, pushing the child into underground work, forcing the child out of school,
failing to put in place protective measures (wages, health, safety) for children who are actually
working because of the refusal to recognize their existence, and forcing working children to
question their identity. Maintaining a discourse of prohibition puts children in a precarious
situation. Wedged between the supposed ideal of a healthy and normal childhood and the
reality and necessity of child work, the millions of working children in the Philippines8 are made
to believe that somehow their childhood is lost which must be rescued.
This chapter does not dispute that there are situations of child work considered abusive and
exploitative. Rather, what the chapter attempts to show is that abuse and exploitation do not
sufficiently describe the phenomenon of child work. Child work involves a whole gamut of
contextualized circumstances and relationships: the decision to work is not only a childs but
also the familys; the reasons for working are not necessarily confined to economics; the work
environment is affected by internal and external factors; child workers may see their work and
the circumstances surrounding it differently from an outsider; child workers do not necessarily
dichotomize between work and education. These and many other contextual circumstances show
the diversity of the lives of children, their families and the communities they live in.
The second statement quoted at the beginning of this chapter the declaration by working
children themselves representing an alternative view of children and work, is significant in
that it clearly situates the primary stakeholder in child work within the discourse. It indicates
that children indeed offer a significant perspective on the way they live their lives. After decades
8

Worldwide, the International Labor Organization-International Programme on the Elimination of Child Labour
(ILO-IPEC) in its statistical information on working children for 2008 found that there were some 306 million
children in economic activity among the worlds almost 1.6 billion children from 5 to 17 years old. This accounts
for almost one-fifth of all children in this age group (19.3%). This number includes all children in employment
whether in safe and allowed work or in unsafe and hazardous work. Yacouba Diallo, et al., Global Child Labour
Developments: Measuring Trends From 2004 to 2008 (Geneva: International Labour Organization, 2010).

140
of being protected and looked after which translated into their virtual invisibility in the
discourse on child work an emerging perspective now recognizes children as active
participants in the construction of their lives. This perspective, mainly influenced by childhood
studies and the child rights movement, respects and values what children have to say about their
lives. Christensen and Prout write of this emerging paradigm:
It focuses on children as social actors in their present lives and it examines the ways
in which they influence their social circumstances as well as the ways in which they
are influenced by them. It sees children as making meaning in social life through
their interactions, with other children as well as with adults. Finally, childhood is
seen as part of society not prior to it and it is subject to the same type of influences
that shape other social phenomena.9
Section I of the chapter presents the competing paradigms of children and work. In this section,
the framework of the dominant and emerging paradigms of children and childhood are set out.
These paradigms provide the foundation for analyzing child work laws and policies. Through an
understanding of the paradigms laid down in this section, the chapter is able to situate the
influences of the definitions and regulations of child work in the Philippines.
The dominant paradigm sees the incompatibility between children and work. This flows from
the supposed inherent characteristics of childhood i.e. innocence, dependency and vulnerability.
As such, work deprives children of their childhood which is not only an aberration [but also] an
outrage.10 On the other hand, the emerging paradigm repositions children in the discourse of
work. More than objects of protection, children are, in fact, active participants in the shaping
and understanding of the phenomenon of child work. Understanding child work entails an
examination of the cultural and social context in which it occurs. This necessitates an
exploration of the diverse realities of children and an appreciation of how they make meaning of
these experiences.
Section II then reviews the history of child work legislation in the Philippines, revealing a long
history of a prohibitory regime against child work. It traces how child work laws have shifted

Pia Christensen and Alan Prout, Anthropological and Sociological Perspectives on the Study of Children in
Sheila Greene and Diane Hogan, eds, Researching Childrens Experience Methods and Approaches (London: Sage
Publications Ltd., 2005) at 42.
10
Allison James, Chris Jenks and Alan Prout, Theorizing Childhood (Cambridge: Polity Press, 1998) at 101.

141
from regulation to prohibition showing the changing characterizations and evaluations of work
and children.
Section III goes on to examine the decisions, interests and assumptions that have shaped child
work legislation in the Philippines. Specifically, this section looks at the varying themes culled
from the child work laws that reveal the influences of the dominant paradigm of children and
childhood. It examines how these influences have impacted the legal response to child work.
As will be argued, child work in the Philippines largely reflects the dominant paradigm and is
based on an idealized vision of what children should be and how they should live their
childhood. By prescribing what children should be doing and more emphatically what they
should not be doing laws and policies reveal their antagonism towards child work. Because
childhood has been constructed as a time solely for innocence, dependency, play and schooling,
any type of work then for the child goes against the order of nature. Such construction has led to
the articulation of the phenomenon of child work in a value-laden language, that of harmful and
abusive child labor. Thus, the discourse of child work has come to be confined to the harmful
and damaging effects of work on children.
The final Section IV, then engages in a critical assessment of the current legal framework using
emerging paradigms of children and childhood which provide a more expansive and
contextually-sensitive understanding of children and their realities. Social science evidence,
especially the experiences of working children themselves, is used to support alternative ways of
looking at children and work.
The section presents a child work framework fully informed by the realities of children. By
recognizing the experiences of working children, these children are given a voice in the process
of making decisions that affect their lives. This is the very essence of the growing collection of
empirical studies that have recognized the participation of children where their views are given
due weight. With a focus on how the child experiences work, and what the child needs to thrive
and develop[and how] all children [are to] be treated with full respect for their rights,

142
opinions, potential and individuality,11 this emerging paradigm suggests a path for
reformulation of the law of child work.
I. THE COMPETING PARADIGMS OF CHILDREN AND WORK
A. THE DOMINANT PARADIGM
The idea that children and work are incompatible has generated the current dominant discourse
on child work. Because work does not belong in childhood, working children are in fact
deprived of their childhood. Reflecting the influence of such dominant paradigm, international
standards and policies on child work have tended to be abolitionist in tone.12 Most
prominently, the International Labour Organization (ILO) has devoted a major part of its
standard setting activity to abolition of child labor.13 In the 2002 Global Report of the
International Labour Office, it is declared:
Child labour is clearly detrimental to individual children, preventing them from
enjoying their childhood, hampering their development and sometimes causing
lifelong physical or psychological damage; it is also detrimental to families, to
communities and to society as a whole. As both a result and a cause of poverty, child
labour perpetuates disadvantage and social exclusion. It undermines national
development by keeping children out of school, preventing them from gaining the
education and skills that would enable them as adults to contribute to economic
growth and prosperity.14
The activities of the ILO to combat child labor originate from its creation in 1919.15 From its
earliest minimum age convention, the ILO believed that children below a certain age should be
kept out of work and that their work be prohibited, with that minimum age being progressively
raised over time. This operated under a general framework of prohibition. In 1919, the ILOs
11

William Myers and Jo Boyden, Child Labour: Promoting the Best Interests of Working Children (London:
International Save the Children Alliance, 1998) at 5.
12
Holly Cullen, Child Labor Standards: From Treaties to Labels in Burns Weston, ed, Child Labor and Human
Rights Making Children Matter (London: Lynne Rienner Publishers, Inc., 2005) at 87.
13
Ingrid Stegeman, Child Labour in the Context of Globalisation in G.K. Lieten, ed, Working Children Around
the World Child Rights and Child Reality (New Delhi: Institute for Human Development, 2004) at 54. Although the
ILO distinguishes between work and labor, such distinction is fraught with complications especially when
applied to the Philippines as discussed in Section III.B. below.
14
International Labour Office, A Future Without Child Labour: Global Report under the Follow-up to the
Declaration on Fundamental Principles and Rights at Work (Geneva: International Labour Office, 2002) at 1.
15
Sharon Detrick, Child Labour and the UN Convention on the Rights of the Child in G.K. Lieten, ed, Working
Children Around the World Child Rights and Child Reality (New Delhi: Institute for Human Development, 2004) at
31.

143
first minimum age convention prohibited children under the age of fourteen years from working
in any public or private industrial undertaking.16 Interestingly, at that early date, the ILO had
already granted exceptions to certain countries where the provisions of the Convention were not
to be applied e.g. in Japan, children under fourteen but over twelve years of age could be
admitted into employment if they have finished the course in the elementary school;17 and in
India, the minimum age for employment was also set lower, at twelve years, and those even
younger were allowed to work under certain conditions.18 These exceptions were an implicit
recognition of the complexity of setting universal norms. Later, the prohibition of child work in
industries for children under fourteen years of age was expanded to other areas of work,
specifically: work on sea vessels;19 agriculture;20 and non-industrial employment.21 Then
between 1936 and 1959, the minimum employable age for these different industries was raised
to fifteen years.
In 1973, the ILO consolidated these industry specific conventions into one convention, operative
to this day, which solidifies the philosophy of keeping children away from work. The ILO
Minimum Age Convention, 197322 mandates the minimum age of fifteen years for entry to any
employment. It provides that the minimum employable age shall not be less than the age of
completion of compulsory schooling and, in any case, shall not be less than 15 years.23 More
generally, the prohibition against child work is made clear in its opening provision as it insists
that:
Each Member for which this Convention is in force undertakes to pursue a national
policy designed to ensure the effective abolition of child labour and to raise
progressively the minimum age for admission to employment or work to a level
consistent with the fullest physical and mental development of young persons.24
16

Convention Fixing the Minimum Age for Admission of Children to Industrial Employment (entered into force 13
June 1921) [C5 Minimum Age (Industry) Convention, 1919].
17
Ibid, art. 5
18
Ibid, art. 6.
19
Convention Fixing the Minimum Age for Admission of Children to Employment at Sea (entered into force 27
September 1921) [C7 Minimum Age (Sea) Convention, 1920].
20
Convention Concerning the Age for Admission of Children to Employment in Agriculture (entered into force 31
August 1923) [C10 Minimum Age (Agriculture) Convention, 1921].
21
Convention Concerning the Age for Admission of Children to Non-Industrial Employment (entered into force 6
June 1935) [C33 Minimum Age (Non-Industrial Employment) Convention, 1932].
22
Convention Concerning Minimum Age for Admission to Employment (entered into force 19 June 1976) [C138
Minimum Age Convention, 1973].
23
Ibid, art. 2(3).
24
Ibid, art. 1.

144
In its desire to set normative frameworks for child work, the ILO Minimum Age Convention,
1973 makes it appear that keeping children out of work is not only desirable but also possible.
Such a mandate is based on the dominant views of children. The setting of a universal minimum
employable age is reflective of the thinking that the experience of childhood is homogeneous in
every place and situation. At the same time, the insistence on completion of compulsory
schooling is a reinforcement of the belief that childhood is reserved for the world of care and
instruction as embodied by attendance in school. It is in the nature of children that they need to
be protected from the harsh realities of work.
A review of the history of childhood in the West reveals how this movement towards the
removal of children from the world of work came about. Until the early 19th century, a majority
of families routinely sought employment for their children.25 Cunningham writes of the British
experience:
States and parents had until [the 1830s] automatically assumed that one of their roles
was to find work opportunities for children. The idle child was the one who was
feared, and to prevent the damage that such children could do to their own futures
and to the peace of their neighborhoods, strenuous efforts were made to provide
work for children.26
Similarly, in the United States, children were active participants in the family economy. Zelizer
states that work for children was not only economically indispensible but also a legitimate
social practice.27 She concludes that: American children had always worked.28 However, from
the mid-19th century, calls for the removal of children from labor took shape. Two key factors,
among others, were significant in this development: 1) changes in economic conditions; and 2) a
redefinition of childhood. The link between these two factors cannot be overemphasized.
Because the necessity of child work to the family economy had been reduced,29 the worth of
children had also been transformed from economic to sentimental. Zelizer, in her seminal work
25

Colin Heywood, A History of Childhood Children and Childhood in the West from Medieval to Modern Times
(Cambridge, UK: Polity Press, 2001) at 121.
26
Cunningham, supra note 3 at 14.
27
Zelizer, supra note 6 at 59.
28
Ibid.
29
Zelizer writes: Rising real incomes, on the other hand, explains the reduced need for childrens wages. As the
standard of living steadily improved between the late nineteenth century and the 1920s, child labor declined simply
because families could afford to keep their children in school. Particularly important was the institutionalization of
the family wage in the first two decades of the twentieth century, by which a male worker was expected to earn
enough to forgo the labor of his wife and children. Ibid at 62-63.

145
Pricing the Priceless Child, famously wrote:
While in the nineteenth century, the market value of children was culturally
acceptable, later the new normative ideal of the child as an exclusively emotional
and affective asset precluded instrumental or fiscal considerations.The economic
and sentimental value of children were thereby declared to be radically
incompatible.30
With the devaluation of the economic worth of child work also came a construction of childhood
that led to the moral outrage against child work. This construction has three distinct
characteristics emblematic of the dominant paradigm: organic, romantic and utilitarian. First,
Cunningham and Stromquist trace a construction of childhood coming from ideas of nature
where: [c]hildhood had been set aside as a time for growth and play. There was an order of
nature whereby the adults in a family should provide for the fledgling children.31 Such an
endogenous representation of childhood has been instrumental in universalizing these Western
views. Because childhood is based on an order of nature, all children pass through the same,
predetermined stages of development. Boyden, et al explain:
Defining development in terms of progressive stages fits the empirical observation
that children everywhere grow bigger and stronger with age and master new skills
and new insights daily. It also seems to make feasible the measurement of
developmental progress in individual children through the application of behavioral
and developmental tests. And very importantly, it apparently provides a benchmark
of well-being upon which child care services and education programmes at all
levels, pre-school through to higher education can be built.32
Thus, when child development theory prescribes that it is in the best interest of children to be
free from work, this is perceived as inherent in childhood. Necessarily, this view results in
labeling as problematic those whose development and experience are different, specifically
working children. The reliance on a natural childhood alienates the millions of children who
perform work and who do not conform to the prescribed standard. A universalist approach
simply falsifies the lived realities and experiences of these children.33 Working children then
become the targets of intervention because they are considered as either deviants or victims.
30

Ibid at 11.
Hugh Cunningham and Shelton Stromquist, Child Labor and the Rights of Children: Historical Patterns of
Decline and Persistence in Burns Weston, ed, Child Labor and Human Rights Making Children Matter (London:
Lynne Rienner Publishers, Inc., 2005) at 60-61.
32
Jo Boyden, et al., What Works for Working Children (Sweden: Save the Children Sweden, 1998) at 31.
33
Manfred Liebel, A Will of Their Own: Cross-Cultural Perspectives on Working Children (London: Zed Books
Ltd., 2004).
31

146

Second, romantic notions of childhood see this as a stage of being innocent and carefree.
Childhood is defined as a period of happiness and dependency. Children are spared from the
responsibilities of the harsh adult world because of the belief that adults should be responsible
for them. Zelizer writes: for reformers, true parental love could only exist if the child was
defined exclusively as an object of sentiment and not as an agent of production.34 This
legitimizes the construction of children as dependents. Consequently, child work is vilified as an
aberration from the notion of a happy and healthy childhood.
The representation of childhood as a period of protected innocence and economic dependency
has obscured our understanding of the meaning and worth of child work. Because children are
measured against a conception of the child as being dependent, carefree, and within the
confines of the family and school the working child, who does not necessarily fit this mold,
needs rescuing. To bolster this view, working children are typified as pitiful children in slavelike conditions. Thus, the phenomenon of working children has become inextricably linked to
abuse and exploitation. Of course, this is not to say that such conditions do not exist. The
problem lies in the instinctive characterization of child work as offensive to childhood. With the
dominant representation of child work as abusive, the proper response of the state is to remove
and rescue children from these activities.
Third, a utilitarian view constructs childhood as a phase where children are prepared to become
useful and productive adults.35 Such a construction influences how the capabilities of children
and their successful socialization into maturity are understood. Seen as future assets, children
are protected from work in their childhood to preserve their potential for a productive adulthood.
Cunningham writes of this utilitarian discourse:
Immersion in labour at too young an age [unfits] children for an appropriate role in
adulthood. Their health and physique might be damaged[:] they would, if female,
fail to learn essential homemaking skills; if male, they would, by confinement within
routine forms of work exclusive to children, fail to acquire the range of aptitudes

34

Zelizer, supra note 6 at 72.


See e.g. Chapter II of this thesis as its examines the sacred task of educational institutions in developing children
to become responsible adults and citizens. See also George Guthrie and Pepita Jacobs, Child Rearing and
Personality Development in the Philippines (University Park: Pennsylvania State University Press, 1966).
35

147
necessary for survival in the adult labour market.36
Expounding on how a utilitarian view of childhood is opposed to child labor, Cunningham and
Stromquist explain:
Here the argument is that child labor has harmful effects both on individual children
and on society as a whole. Individual children suffer in their health, and they learn
skills that serve them in childhood but for which there is no useful outlet in adult
life. Society as a whole needs adults able to work in a wide variety of roles, both
domestic and in the labor market, and child labor [hinders] the development of such
adults. Children therefore have a right, from which society benefits, to be trained in
skills that will provide them with an adult livelihood.37
The ILO, through its Minimum Age Convention, 1973 supports this utilitarian view. The
Convention rests on the assumption that by prohibiting child work through the progressive
raising of the minimum age for employment it is protecting the future potential of children by
allowing for their fullest physical and mental development.38 Cunningham writes of the ILO
approach:
The reason for not admitting a child too early to remunerative employment is that its
physical development is not yet complete; moreover, the period of childhood ought
to be the period of school attendance if the future worker is to have every
opportunity of developing his adult personality to the full.39
The concern with the utilitarian argument is the oft-repeated characterization of children as
becomings rather than beings. Because of the emphasis on the potential of children, the
current contributions of children are often devalued and depreciated. Lansdown asserts that the
social and economic contributions of children are rendered invisible because of the lack of
recognition of their capacities.40 At most, working children are seen as pitiful victims burdened
with adult responsibilities whose futures are regrettably compromised. The perceived lack of
capacity for children transforms them into either objects of development or objects of care.41
This elicits the correlative response from adults to develop these immature children and protect

36

Cunningham, supra note 3 at 15-16.


Cunningham and Stromquist, supra note 31 at 78.
38
C138 Minimum Age Convention, supra note 22, art. 1.
39
Cunningham, supra note 3 at 20.
40
Gerison Lansdown, The Evolving Capacities of the Child (Florence, Italy: UNICEF Innocenti Research Centre,
2005).
41
Liebel, supra note 33.
37

148
them from the evil influences and the rough reality of (adult) society.42
B. EMERGING PARADIGM
Because of the growing understanding of childhood as a social construction, a new discourse on
children is also emerging. What was once thought to be the natural and universal experience of
childhood is slowly coming to be seen as, in fact, a very particular conception influenced by
space and time. To this end, childhood is now being examined from a more particularistic and
contextually-sensitive framework. Thus James and Prout,43 whose work has been very
influential in furthering this new view of childhood, have posited: Childhood, as distinct from
biological immaturity, is neither a natural nor universal feature of human groups but appears as
a specific structural and cultural component of many societies44 This recognition allows our
discourse to accommodate and consider the realities of those previously excluded in society. In
other words, the contextualization of childrens lives allows for the recognition of different
childhood realities. Boyden, et al explain:
But childhood embraces a remarkably heterogeneous set of experiences, supported
by a broad range of developmental goals. There are many different kinds of
childhood in the world today; children in different places face very different
challenges, and are raised in very different ways and with very different expectations
and outcomes. Different societies have their own ideas about childrens capacities
and vulnerabilities, the ways in which they learn and develop and what is good for
them and what is bad. Even basic concepts such as child work or child
exploitation are interpreted in different ways by different people in different parts
of the world. Ultimately, childrens well-being and development are influenced
more than anything by their own competencies and by the opportunities and
constraints, social, cultural, and economic, associated with the particular context
they live in.45
With the acknowledgment of the diversity of childrens lives comes a distinctive interest in the
child. Because childhood is now about a childs particular reality, the focus is on how a child

42

Ibid at 275.
Alan Prout and Allison James, A New Paradigm for the Sociology of Childhood? Provenance, Promise and
Problems in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary
Issues in the Sociological Study of Childhood (London: The Falmer Press, 1997).
44
Ibid at 8.
45
Boyden, et al., supra note 32 at 32.
43

149
understands and experiences that reality. Children are now seen as social actors46 who are active
in the construction and determination not only of their own social lives but also of the lives of
those around them and of the societies in which they live.47 Children whether in families, in
schools, at work or in other settings equally share in the shaping of the experience of
childhood, having the capacity to understand their experiences and construct meaning out of
them. Myers writes of this appreciation of children:
It understands children to be resilient as well as vulnerable, to be capable as well as
inexperienced, to be characterized by knowledge as well as ignorance, to have a
variety of intelligences as well as learning needs, and to be active rather than passive
agents in their development. It also appreciates that children learn best through
personal engagement in life activities, and that crucial self-esteem comes in part
from a sense of efficacy in the world. This view contrasts with perspectives that
represent children more passively as present or potential victims, as blank slates to
be written on by schools and other institutions, or as mere products and expressions
of their culture.48
This emerging paradigm is closely linked to the childrens rights discourse in which children are
fully recognized as rights holders. They are not mere passive recipients of adult protective care,
but are also active holders of rights. The United Nations Convention on the Rights of the Child
(UNCRC) fully endorses this view with its strong espousal in article 12 of a childs right to
express his or her views freely in all matters affecting him or her with those views being given
due weight.49 In fact, the right of participation is one of the core values of the UNCRC. As
active and capable individuals, children contribute to their own development and therefore what
they say matters.
Treating children as subjects transforms our understanding of child work. Working children are
no longer seen as belonging to the periphery of society, but rather a legitimate and integral part
of it. Their lived experiences become a consideration for any program or policy for child work.
Our own standards for work may be insufficient, or even flawed, to capture the essence of their
realities. Liebel argues that understanding child work denotes:

46

Berry Mayall, Towards a Sociology for Childhood: Thinking from Childrens Lives (Buckingham: Open
University Press, 2002).
47
Prout and James, supra note 43 at 8.
48
William Myers, Valuing Diverse Approaches to Child Labour in Kristoffel Lieten and Ben White, eds, Child
Labour: Policy Options (Amsterdam: Aksant Academic Publishers, 2001) at 40-41.
49
Convention on the Rights of the Child, 1577 UNTS 3 (entered into force 2 September 1990) [UNCRC], art. 12(1).

150
Seeing childrens work from the childrens perspective and finding answers to the
question of what work means to the children and in what way it is experienced and
judged by the children. This meansaccepting that children may feel and see their
work in quite a different way from which our habitual way of thinking suggests.
This includes allowing childrens perspective and judgment [of] their own rightful
existence, taking them seriously, and recognizing them as at least equal status.50
Although cautious in its formulation, the UNCRC expresses the opening up of a space for
children in the world of work. Article 32(1) of the Convention provides:
States Parties recognize the right of the child to be protected from economic
exploitation and from performing any work that is likely to be hazardous or to
interfere with the childs education, or to be harmful to the childs health or
physical, mental, spiritual, moral or social development.51
The greatest value of the UNCRC is its use of the language of rights in its treatment of working
children. Not only does the Convention provide for the right of the child to be protected from
economic exploitation, it also provides for the childs right to be protected against hazardous or
harmful work. The clear implication of this is that the UNCRC does not prohibit all forms of
child work. Rather, it distinguishes between work that is beneficial and work that is detrimental
to the child. By recognizing safe and beneficial work for children, the UNCRC, in fact,
acknowledges the realities of children who are working. Such recognition allows for the lives of
working children to be considered a legitimate childhood experience. Consequently, the
principles of upholding the best interests of the child and the childs right to participation
espoused by the UNCRC equally apply to the working child. These values are informed by the
fundamental assertion that a working child as any other child is not a mere passive object of
concern but more importantly, an active rights holder.
Along these lines, UNICEF has expressed the belief that generalizing all child work as
dangerous creates more concerns. In its 1997 State of the Worlds Children, the agency issued a
crucial statement:
But to treat all work by children as equally unacceptable is to confuse and trivialize
the issue and to make it more difficult to end the abuses. This is why it is important
to distinguish between beneficial and intolerable work and to recognize that much

50
51

Liebel, supra note 33 at 9.


UNCRC, supra note 49, art. 32(1).

151
child labour falls into a grey area between these two extremes.52
The distinction between harmful work and other forms of child work is also manifested in the
ILO Worst Forms of Child Labour Convention, 1999. In this Convention, the ILO shifted its
focus to the most dangerous and abusive forms of child work, implicitly recognizing that other
forms of child work are not as harmful.
Previously, when dealing with child workers, adults were influenced by conceptions of children
as passive, vulnerable and helpless beings. Thus, the intuitive response was to rescue children
from work so that they may reclaim their childhood. But with a reconceptualized childhood,
Myers and Boyden push for the full respect of the rights, opinions, potential and
individuality53 of children. They argue that addressing child work:
Begins from a position of respect for [childrens] persons, for the contribution they
make to their families and communities, and for their right and capacity to shape
their own lives. It arrives at decisions about childrens work and what should be
done about their work, by starting with an in-depth consideration of the children
involved. It develops a response to childrens work problems in collaboration with
the children and on the basis of what is best for them.54
From this perspective, the working child becomes an active participant in the exchange of
insights that facilitate our understanding of child work. Camacho writes:
As children tell and retell, recall and reframe their stories, they are able to construct
a clearer understanding of themselves and discover deeper meanings and create new
interpretations of the events and experiences in their lives.55
Consequently, any program or policy relating to child work must be contextually sensitive and
relevant to the lives of those actually affected.
II. A HISTORICAL ANALYSIS

OF THE

LEGAL FRAMEWORK

OF

CHILD WORK

IN THE

PHILIPPINES
Having laid out the competing paradigms in Section I, this section now traces the historical
52

UNICEF, The State of the Worlds Children 1997 (UK: Oxford University Press, 1997) at 24.
Myers and Boyden, supra note 11.
54
Ibid.
55
Agnes Zenaida Camacho, Changing Perceptions of Child Work (Quezon City: SC-UK Philippines and UP CIDS,
2001) at 27.
53

152
context of child work legislation in the Philippines. By examining the child work laws in each
period of its legislative history, this section demonstrates the influences to the definitions and
regulations of child work in the Philippines. Looking at this history of child work laws, this
section shows how the legal system largely reflects the dominant paradigm and how it has been
based on an idealized vision of what children should be and how they should live their
childhood. With such a discourse, child work laws and policies have characteristically
prescribed the universal response of prohibition and removal.
A. THE FIRST CHILD LABOR LAW OF 1923:
INDUSTRY-SPECIFIC CHILD WORK REGULATION
In its early history, Philippine law specifically recognized child work. As such, the legal thrust
then was merely to regulate child work. If there was prohibition, it was industry-specific and
limited to particular forms of undertakings.
During the period of Spanish colonial rule56 in the Philippines, working children were prevalent.
Work included doing household chores for the clergy, Spanish officials and foreigners in the
country. Del Rosario and Bonga, for example, found that children were used by priests to pound
palay57 and clean their churches and convents.58 Similarly, Camagays study identified
children called bata59 and whose average age was 13 working in the households of rich
foreigners in the country:
The young boys were often referred to as muchachos. From accounts of foreign
visitors of the Philippines during the 19th century the muchachos were usually
employed by the male members of the foreign community. They did such tasks as
polishing the shoes of the master, pulling the punkah or lighting the lamps of the
house.
As for the young girls, they assumed household tasks they were capable of
undertaking at their age. These included practically all types of household chores
such as cleaning the house, washing clothes and even sewing.60
56

Spanish colonization began with the arrival of Ferdinand Magellan in 1521.


Unhusked rice grain.
58
Rosario Del Rosario and Melinda Bonga, Child Labor in the Philippines A Review of Selected Studies and Policy
Papers (Quezon City: UP-OVCRD, 2000).
59
Literally means child in Filipino.
60
Maria Luisa Camagay, Working Women of Manila in the 19th Century (Manila: University of the Philippines
Press and the University Center for Womens Studies, 1995) at 58-59.
57

153
Aside from working in churches and households, children were also in other industries. They
entered the agricultural industry and became part of the labor force of Hacienda (plantation)
owners;61 young girls worked in the tobacco manufacturing monopolized by the Chinese; they
were also in the industries of embroidery, sewing, tailoring and weaving; young males were
employed as service workers; and child vendors were noticeably more visible in the streets and
theatres.62 Later, during the American occupation,63 there was widespread and systematic
employment of children in the different industries.
In the early 1900s, while the number of working children in the Philippines was increasing, a
national campaign against child labor was taking root in the United States, the colonial authority
at that time. In the US, laws were passed banning children under a specific age from working in
factories; restricting hours of work; requiring documentation of age for child workers; and
strengthening compulsory school attendance.64 Before long, such campaigns reached the
Philippines.
In 1923, a law65 regulating the employment of children (and women) in certain industries was
passed. Although the law specifically targeted children in work, this early attempt at legislation
was not intended as a blanket prohibition for all forms of child work. The Act merely regulated
the employment of children of certain ages in specific industries. As in the US, this legislation
was framed to control child employment in industries where there was particular cause for
concern.66 But at the same time, this law was also one of the first attempts to use age as a
marker for certain types of child work. Even if the assumption was that the harm was considered
inherent in the industries and undertakings regulated, such harm was inherent only to children of
a certain age. Thus, a child below fourteen years could not work in mines or places with
explosives while a child below sixteen was prohibited from working as an operator of
61

Amparita Sta. Maria, Internal Trafficking In Children For The Worst Forms Of Child Labor, A Report Submitted
to the ILO-IPEC, 2001.
62
Del Rosario and Bonga, supra note 58.
63
The American rule began in 1898 when Spain ceded the Philippines by virtue of the Treaty of Paris.
64
For a more comprehensive discussion of the history of American child labor laws, see Judith Sealander, The
Failed Century of the Child: Governing Americas Young in the Twentieth Century (New York: Cambridge
University Press, 2003).
65
Act No. 3071 (1923) An Act to Regulate the Employment of Women and Children in Shops, Factories, Industrial,
Agricultural and Mercantile Establishments, and Other Places of Labor in the Philippine Islands; to Provide
Penalties for Violations Hereof, and for Other Purposes.
66
Cunningham, supra note 3 at 16.

154
machinery or elevators or as a fireman or motorman or in places with poisonous materials and
where games are played for money. The law provided, among others:
Sec. 1. It shall be unlawful for any person, firm, or corporation to employ females or
males below the age of fourteen years as laborers in the mines or in places of labor
where explosives are used or manufactured.
Sec. 5. It shall be unlawful for any person, firm, or corporation licensed to establish
a bar to employ or permit the employment in said bar of females under eighteen or
males under sixteen years of age.
Sec. 7. It shall be unlawful for any person, firm, or corporation to employ or permit
the employment of persons below the age of sixteen years in departments or
divisions of their factories, shops or other places of labor where work is being done
in connection with the preparation of any poisonous, noxious, explosive, or
infectious substance.
Sec. 8. It shall be unlawful for any person, firm, or corporation to employ or permit
the employment in his factory, shop, commercial or industrial establishment or other
place of labor of persons below the age of eighteen years for performing any work
not specified in this Act which involves serious danger to life of the laborer.
Sec. 10. No person, firm, or corporation shall employ or permit the employment in
its factory, shop or other place of labor of any person below the age of sixteen years
as operator of elevators, motorman or fireman or to clean machinery, work
underground, or do similar work.
Sec. 11. It shall be unlawful for any person, firm, or corporation to employ or cause
the employment of persons below the age of sixteen years in billiard rooms,
cockpits, or other places where games are played for stakes of money or things
worth money, and in dance halls, stadiums, or race courses as bailarinas, boxers, or
jockeys.
Sec. 14. It shall be unlawful for any person, firm, or corporation to employ or permit
the employment of persons below the age of sixteen years for the sale of medicines
and drugs in a pharmacy, or for any work that may affect the health of the public.67
Quite noticeable in this law was the fact that it was specifically directed against the persons,
firms or corporations who employed children in their establishments and not the children
themselves. Thus, the law was really a regulation against the hiring of children of particular ages
in these specific industries and activities. As proof that this early law did not prohibit all forms
of child work but instead recognized the reality of working children, it specifically provided for

67

Act No. 3071, supra note 65.

155
measures and conditions aimed at protecting children in the workplace. These provisions
included:
Sec. 2. Any person, firm or corporation owning a factory, shop or industrial or
mercantile establishment, shall be obliged to provide and place in its establishment,
for the use of its laborers, seats proper for women and children and permit them to
use said seats during the hours when they are free of work and during working
hours, provided they can perform their duties in this position without detriment to
efficiency. Laborers shall be allowed not less than sixty minutes for their noon meal.
Sec. 3. No person, firm or corporation shall employ nor permit the employment of
any person below the age of sixteen years for work in its shop, factories, commercial
or industrial establishment or other places of labor for more than seven hours daily
or forty-two hours weekly. It shall be the duty of every employer to post signs in the
most conspicuous places in each room where minors are working, stating the hours
during which these are authorized to work.
Sec. 4. No person, firm or corporation shall employ nor permit the employment of
any boy or girl below the age of fourteen years in its factory, shop, commercial or
industrial establishment or other place of labor on school days, unless such child
knows how to read and write. Every employer shall be obliged to have in his
establishment a duly certified copy of the birth certificate of each of his laborers
below the age of eighteen years while such laborer is employed by him.
Sec. 9. Any person, firm or corporation owning, leasing or managing a factory, shop
or place of labor of any description shall be obliged to establish for the use of its
laborers separate and suitable closets and separate lavatories for males and females,
and to provide at least one dressing-room for the women and children: Provided,
That the Director of the Bureau of Labor shall be authorized, in his discretion, to
exempt from this provision small shops which, on account of their small capital,
cannot comply with the provisions of this section.
Sec. 12. No person, firm or corporation shall employ in its factory, shop or other
place of labor or permit the employment therein of any person below the age of
sixteen years, to work before six oclock ante meridian or after six oclock post
meridian.68
B. THE 1952 LAW:
TRANSITION FROM REGULATION TO PROHIBITION
The 1950s saw the introduction of universal minimum age legislation and with that came a shift
in approach from regulation to the blanket prohibition of child work. During this transition from
68

Ibid.

156
regulation to prohibition the law introduced distinctions between prohibited employment and
permissible work by use of such standards as light work, prejudicial to normal development
and the like. Such distinctions served to indirectly define what the law considers as child work.
Also during this time, the law introduced age thresholds whereby children of a certain age were
matched with certain conditions and circumstances of child work.
After the Philippines gained independence from the United States in 1946, the thrust of
regulating child work slowly turned to prohibiting children from working. Thus, child work
laws became more wide-ranging in their formulation. In 1952, An Act to Regulate the
Employment of Women and Children69 was passed. Although this law was not a straightforward
blanket prohibition of child work, it was the beginning of a long legal history of minimum age
legislation in the Philippines anchored on a framework of prohibition. Softened with some
permissive language, this law saw the first statement restricting children of a certain age, i.e. 14,
from working in any industry or undertaking. While in the first child labor law of 1923, enacted
during the American period, the prohibition was set out only with respect to specific industries,
this time the restriction was more all encompassing. Also quite telling was that the language of
the law was specifically directed against children themselves. The law provided:
Sec. 1. Employment of children below fourteen years of age. - (a) Children below
fourteen years of age may only be employed to perform light work (1) which is not harmful to their health or normal development, and
(2) which is not such as to prejudice their attendance in school or to benefit from the
instruction there given.
(b) No child below fourteen years of age shall be employed or permitted or suffered
to work on school days in any shop, factory, commercial, industrial, or agricultural
establishment or any other place of labor unless such child knows how to read and
write. The fact that a child knows how to read and write shall be evidenced by an
educational certificate issued by the principal of the public or private elementary
school in the locality where such child resides; but in case the child cannot produce
said certificate, the managing employer of the establishment concerned shall conduct
an intelligence test to determine whether the child can read or write.70

69

Republic Act No. 679 (1952) An Act to Regulate the Employment of Women and Children, to Provide Penalties
for Violation Hereof , and for Other Purposes.
70
Ibid, s. 1.

157
As a transition from the framework of regulation to that of prohibition, this law created the
impression that not all forms of child work were prohibited. To this end, the law introduced for
the first time the concept of light work, together with the standards of health and normal
development as the benchmarks for permissible child work. However, quite to the contrary, the
introduction of these undefined standards would later be used to justify a pejorative
characterization of child work that equated all forms of child work with the harmful concept of
child labor. This would lead to the subsequent antagonism towards all forms of child work
meriting its total abolition.
Most striking in this law was the absence of any intimation of what constituted light work.
Instead, it was characterized using even more indeterminate standards. Light work was
understood as not harmful either to childrens health or their normal development. Instead of
clarifying the concept, such descriptions raised even more questions. Most fundamental was
whether harm to the childs health could be described in terms of physical burden, hours of
work, working environment or some other factor. If such were the case then it was not the work
per se that was harmful but the conditions surrounding the work. Such questions also raised
concerns as to whose standard was to be used in determining whether the work was light or
whether it was harmful. Equally problematic was the qualification that the light work must not
be harmful to the childs normal development. Which standard of a normal development was the
law referring to? Obviously, the realities of working children and their development differ
from that of non-working children. Given this, a working childs development would never be
normal compared these other children and such fact would make any work inevitably
harmful.
The second qualification for light work was that it not prejudice attendance in school. The law
reflected the belief that work and education were contradictory. Interestingly, this law equated
schooling with the ability to read and write. Although there may be some correlation, such a
limited view detracts from the real essence of an education. Worse, the law seemed to associate
reading and writing with intelligence, rendering certain children vulnerable to exploitation and
abuse by giving adults the power to determine a childs intelligence.
Significantly, this law also introduced a category of work in which children of any age and

158
under any circumstance were allowed to engage. Because these activities were specifically
separated from light work, the implication was that they were under a different category
altogether. As will be discussed in the succeeding section, the law did not see these instances as
work and thus did not merit regulation. These included:
1) domestic work in a family;
2) employment in [an] establishment in which only members of the employers
family are employed, except employment which is harmful, prejudicial or dangerous
under other provisions of this Act;
3) work done [for] vocational, technical, or professional schools, which is essentially
of an educative character and is not intended for commercial profit, provided such
schools are duly authorized under the law; or
4) employment as gymnast, acrobat, circus or show performer, or in any dancing,
theatrical or musical exhibition.71
The 1952 law made very clear assumptions about children and childhood. For the first time,
child work was clearly delineated by distinctions between ages. There were three threshold ages
in the law: 14 was the minimum employable age while the ages of 16 and 18 merited specific
work prohibitions. For example, these two latter age thresholds prohibited the employment of
children in undertakings such as mines, shipbuilding, civil engineering works, construction,
establishments operating machinery, places of gambling, bars,72 pharmacies and other similar
places of labor. As in the first child labor law of 1923 enacted during the American period, the
enumeration of prohibited industries implied an inherent and standardized claim of danger for
children.
Notwithstanding the move towards a framework of prohibition, this 1952 law nevertheless
recognized the reality and necessity of child work for families. While the law set a minimum
employable age where children below 14 were allowed to work only in certain circumstances
(and 16 and 18-year olds were restricted in their employments), at the same time, the law also
recognized an overriding situation where these prohibitions did not apply. An important
provision in the law was the exemption from the prohibitory regime granted to any child worker
on grounds of economic necessity:

71
72

Ibid, s. 1(c).
This is specifically for women. Ibid, s. 3(a) provides:
No woman below eighteen years of age shall be employed or permitted or suffered to work in any
bar, night club, or dance hall.

159
Sec. 10. Special work permits; rules and regulations. - (a) The Secretary of Labor or
his duly authorized representative shall have the power to grant a special permit for
the employment of any child whose employment is otherwise prohibited in this Act,
whenever in his judgment the economic necessity of the family to which such child
belongs requires his assistance for increasing the family income. Such permit shall
be issued under such conditions as will not prejudice the compulsory school
attendance of any child under the rules and regulations prescribed by the Secretary
of Education under section 1 of this Act and as may be necessary for the protection
of such child (emphasis added).73
This specific provision was common in child labor legislation in the United States during the
1900s where poverty permits allowed young children to work if their earnings were necessary
for self-support or to assist their widowed mothers or disabled fathers.74 This exception clearly
recognized the necessity of the work of children to their families. Such an exception not only
acknowledged that work was indeed a reality for many children but also, more importantly, that
their contribution to the family economy was essential.
With the institutionalization of the prohibitory regime against child work, the next two decades,
as will be shown below, saw more definitive minimum age legislation articulated in prohibitory
language. The prohibitions became broader embracing more settings that were unrecognized in
previous laws, including domestic service and street trades. Most significantly, this period also
saw child work coming to be considered a specific issue of child protection.
C. THE 1971 AND 1973 AMENDMENTS:
MORE DEFINITIVE MINIMUM AGE LEGISLATION

WITH A

CLEARER PROHIBITION AGAINST

CHILD WORK
In 1971, a law75 amending the 1952 Act introduced a much more definitive statement of the
prohibition against work below a minimum age the age of 12. Passed approximately 20 years
later, this law used explicitly prohibitive language whereby no child below 12 years old was
allowed to work. Although there was an exception to the minimum age requirement for work in
the home or farm enterprise of the childs parent or guardian, this law was the first explicit
statement that a child of a certain age could not be employed. The prohibition was also very
73

Ibid, s. 10.
Zelizer, supra note 6 at 64.
75
Republic Act No. 6237 (1971) An Act Further Amending Republic Act Numbered Six Hundred Seventy-Nine, as
Amended by Republic Act Numbered Eleven Hundred Thirty-One (Re: Woman and Child Labor Law).
74

160
broad as it prohibited work with or without compensation in any setting, including domestic
service and street trades making the prohibition all-encompassing. The 1971 amendment
provided:
Sec. 1. Employment of children below twelve years of age. No child below
twelve years of age shall be employed or permitted or suffered to work with or
without compensation in any shop, factory, commercial, industrial, or agricultural
establishment, in any kind of work, including domestic service and street trades;
provided, however, that this paragraph shall not apply to work performed outside
school hours in the home or farm enterprise of the childs parent or guardian.76
With the introduction of this minimum age requirement for employment, the previous age
thresholds were also changed. Twelve to14 year-olds were restricted to light work; and 15 year
olds were subject to prohibitions from employment in certain undertakings. The prohibitions on
16 and 17 year-olds remained the same.
Further amendments were made two years later77 specifically raising the minimum employable
age from 12 to 14 and making the prohibitions for the different age thresholds even broader. In
addition to raising the minimum employable age, this law also eliminated distinctions such as
light work, domestic work, work done in schools, etc. The only exception to the minimum
employable age of 14 was for work directly under the sole responsibility of the parent or
guardian, involving activities which were not hazardous in nature and which did not in any way
interfere with schooling. For children above the minimum employable age, the conditions
allowing them to work were quite vague and discretionary: they could be employed in nonhazardous undertakings as determined by the Secretary of Labor. The standards for nonhazardous work were not only undefined but also largely dependent on the discretion of an
individual, i.e. the Secretary of Labor. The law provided:
Sec. 1. Minimum Employable Age. No child below 14 years of age shall be
employed by any employer, except where the child works directly under the sole
responsibility of his parent or guardian, involving activities which are not hazardous
in nature and which do not in any way interfere with his schooling.
Sec. 2. Age Eligibility for Employment. Any person between 14 and 18 years of age
may be employed in any non-hazardous undertaking as determined by the Secretary
76

Ibid, s. 1
Presidential Decree No. 148 (1973) Amending Further Certain Sections of Republic Act Numbered Six Hundred
Seventy-Nine, as Amended, Commonly Known as the Woman and Child Labor Law.
77

161
of Labor. The employer shall not discriminate against any such person in respect to
terms and conditions of employment on account of his age.78
An important development in this 1973 amendment was the express repeal of the original power
of the Secretary of Labor to grant exemptions to prohibited employment based on the economic
necessity of the family. Clearly indicating a move towards a more stringent prohibition of child
work, the removal in the law of this exemption signified that the policy of keeping children
away from work could not be overridden by the economic needs of the family.
D. THE 1974 PHILIPPINE LABOR CODE AND CHILD AND YOUTH WELFARE CODE:
CHILD WORK AS AN ISSUE OF BOTH LABOR REGULATION AND CHILD PROTECTION
Significant legal reforms in 1974 saw child work both as an issue of labor regulation and child
protection. This further strengthened the framework of prohibition. In 1974, the law on the
employment of children was revised once again. This time, the all-embracing Labor Code79 was
passed. This law maintained the strategy of imposing a blanket minimum employable age it
was raised to 15 in this law as opposed to 14 in the immediately preceding law. The only
exception to this was when the child worked under the sole responsibility of the parents or
guardian, provided that such employment did not interfere with schooling. In addition, the
standards of hazardous and deleterious were used to limit the kinds of work that could be
done by children between the ages of 15 and 18. As has been a recurring theme in the legal
history of child work, the problem with these standards, was that they became even more
ambiguous as they were based on a subjective assessment of risk rather than on actual danger or
harm, leading to the virtual prohibition of all types of child work. The concern was the openendedness of the definition of hazardous work as being exposed to risk that was an imminent
danger to safety and health. The provision on the minimum employable age provided:
Art. 139. Minimum employable age.
a) No child below 15 years of age shall be employed, except when he works directly
under the sole responsibility of his parents or guardian and his employment does not
in any way interfere with his schooling.
78

Ibid, ss. 1 and 2.


Presidential Decree No. 442 (1974) A Decree Instituting a Labor Code, Thereby Revising and Consolidating
Labor and Social Laws to Afford Protection to Labor, Promote Employment and Human Resources Development
and Ensure Industrial Peace Based on Social Justice [Labor Code].
79

162
b) A person between 15 and 18 years of age may be employed for such number of
hours and such periods of the day as determined by the Secretary of Labor and
Employment in appropriate regulations.
c) The foregoing provisions shall in no case allow the employment of a person
below 18 years of age in an undertaking which is hazardous or deleterious in nature
as determined by the Secretary of Labor and Employment.80
For work not to be hazardous, the law defined such circumstance as:
[A]ny work or activity in which the employee is not exposed to any risk which
constitutes an imminent danger to his safety and health. The Secretary of Labor and
Employment shall from time to time publish a list of hazardous work and activities
in which persons 18 years of age and below cannot be employed.81
Immediately after the Labor Code was passed, the Child and Youth Welfare Code of 197482 was
enacted into law. This law served as the governments framework for the promotion of the
welfare of children. It codified the rights and responsibilities of children covering the different
aspects of the child from the family, to schools, to the community. The section dealing with
working children provided:
Article 107. Employment of Children Below Sixteen Years. - Children below
sixteen years of age may be employed to perform light work which is not harmful to
their safety, health or normal development and which is not prejudicial to their
studies.
The provisions of the Labor Code relating to employable age and conditions of
employment of children are hereby adopted as part of this Code insofar as not
inconsistent herewith.83
With the Labor Code and the Child and Youth Welfare Code both dealing with child work, there
was an impression that child work needed even more regulatory protection. Child work was not
only a labor issue, as addressed by the Labor Code, but it had also become a child protection
concern under the ambit of the Child and Youth Welfare Code thus pushing even further the
framework of prohibition.
E. THE 1992 ANTI-CHILD ABUSE LAW:
HINTS OF A NEW DIRECTION IN CHILD LABOR LEGISLATION
80

Ibid, s. 139.
Omnibus Rules Implementing the Labor Code (1989) Rules to Implement the Labor Code, Book 3 Rule XII, s. 3.
82
Presidential Decree No. 603 (1974) The Child and Youth Welfare Code.
83
Ibid, art 107.
81

163

Departing from the long history of prohibition, the 1990s briefly saw an opening for the
recognition of child work. During this time, the focus of the governing legislation shifted from
prohibiting underage employment to ensuring that there were protective measures for working
children. This approach was reminiscent of the regulatory nature of the early history of child
work laws. This approach was short-lived, however, and the law quickly reverted to its
prohibitory strategy. As an added measure, the exceptions to minimum employable age were
made even more rigid.
1992 was a very interesting year for child work legislation in the Philippines. Coming on the
heels of the UNCRC84, the Special Protection of Children Against Child Abuse, Exploitation
and Discrimination Act85 or more commonly known as the Anti-Child Abuse Law was passed.
This law was one of the main responses of the Philippines to the UNCRC. The provisions on
working children in this law were significant in two ostensibly contradictory ways. Although the
law reformulated child work as an issue of child abuse thereby evoking protectionism, it
nevertheless still took one of the most liberal approaches in dealing with minimum employable
age a marked departure from its predecessors. Consequently, it was both lauded and severely
criticized, depending on where one stood.
In its declaration of policies and principles, the Anti-Child Abuse Law stated:
It is hereby declared to be the policy of the State to provide special protection to
children from all forms of abuse, neglect, cruelty, exploitation and discrimination,
and other conditions prejudicial to their development; provide sanctions for their
commission and carry out a program for prevention and deterrence of and crisis
intervention in situations of child abuse, exploitation and discrimination. The State
shall intervene on behalf of the child when the parent, guardian, teacher or person
having care or custody of the child fails or is unable to protect the child against
abuse, exploitation and discrimination or when such acts against the child are
committed by the said parent, guardian, teacher or person having care and custody of
the same.86
84

The UNCRC was adopted on November 20, 1989 and entered into force less than a year later on September 2,
1990 in accordance with Article 49. The Philippines signed the UNCRC on January 26, 1990 and was ratified on
August 21, 1990.
85
Republic Act No. 7610 (1992) An Act Providing for Stronger Deterrence and Special Protection Against Child
Abuse, Exploitation And Discrimination, Providing Penalties for its Violation, and for Other Purposes [Anti-Child
Abuse Law].
86
Ibid, s. 2.

164
Under this framework, child labor was easily reformulated as an issue of child abuse.87 The use
of the language of abuse and exploitation reinforced the sentiment of antagonism against any
type of child work. This gave support to the response of rescue and removal. Camacho writes:
[The law] contains comprehensive provisions for the protection of children in
various circumstances of abuse, including the working child. This was the
governments main policy framework for the protection of children in especially
difficult circumstances (CEDC).Other terms were formulated to draw up public
support and sympathy. The CEDCs were considered as children at risk or
children in crisis. They were vulnerable children. They were abused and
exploited.88
On the other hand, however, the Anti-Child Abuse Law included one of the most permissive
articulations of a minimum employable age which opened up space for the recognition of child
work:
SEC. 12. Employment of Children. - Children below fifteen (15) years of age may
be employed: Provided, that, the following minimum requirements are present:
(a) The employer shall secure for the child a work permit from the Department of
Labor and Employment;
(b) The employer shall ensure the protection, health, safety and morals of the child;
(c) The employer shall institute measures to prevent exploitation or discrimination
taking into account the system and level of remuneration, and the duration and
arrangement of working time; and
(d) The employer shall formulate and implement a continuous program for training
and skill acquisition of the child.
The Department of Labor and Employment shall promulgate rules and regulations
necessary for the effective implementation of this section (emphasis added).89
The language used in the law was a striking departure from its predecessors. Specifically, while
the Labor Code, and the laws prior to it, set a minimum employable age by using prohibitory
language i.e. that no child below 15 shall be employed, the approach under the Anti-Child Abuse
Law was permissive children below 15 may be employed. Also, the imposition of conditions
to allow for child work below the minimum employable age was not a restriction on children,
but rather a responsibility imposed on employers. The implication was that a child of any age
87

The law also dealt with children in prostitution, trafficked children, abused children, children of indigenous
cultural communities and children in situations of armed conflict.
88
Camacho, supra note 55 at 19.
89
Anti-Child Abuse Law, supra note 85, s.12.

165
could work with the proviso that if the child was below 15, protective measures had to be in
place, such as the requirements on the employer to secure a child permit; ensure the protection,
health, safety and morals of the child; institute measures to prevent exploitation; and institute
programs for training. Significantly, the formulation of the law signaled that the focus of
legislation was not to prohibit underage employment but rather to ensure that there were
protective measures for these working children. Implicitly, this meant a recognition of the
existence of child work and the laws sanction of it. The law had become more accommodating
and had opened up a space for child work.
F. THE 1993 AMENDMENT TO THE ANTI-CHILD ABUSE LAW:
A QUICK RESPONSE UNDERSCORING THE POLICY AGAINST CHILD WORK
Because of the liberal stance taken by the child work provisions in the Anti-Child Abuse Law, it
was interpreted as allowing children to suffer from child work. This meant a resounding
disapproval from the public and childrens crusaders. With these mounting protests, the law
was immediately amended a year later, resulting in a return to the previous prohibitory language
found in the 1974 Labor Code. To stress the point, this amending law was in fact entitled An Act
Prohibiting the Employment of Children Below 15 Years of Age in Public and Private
Undertakings, Amending[the Anti-Child Abuse Law].90 This new law signaled a return to
blanket minimum age legislation and restored the restrictions on work for children below the
minimum employable age.
In strong reaction against the permissive nature of the previous Anti-Child Abuse Law, this 1993
law sent a clear message that 15 was the minimum employable age. Once again, the main thrust
of the law was to direct its attention towards the prohibition of child work. Moreover, the
exceptions to minimum employable age were made even stricter than the 1974 Labor Code.
Employment below 15 years of age was only allowed when it was directly under the sole
responsibility of the parents and where only members of the employers family were employed.
This latter condition was not present in the 1974 Labor Code. The new law also required that the
employment of a child below 15 neither endanger the life, safety, health and morals of said child
90

Republic Act No. 7659 (1993) An Act Prohibiting the Employment of Children Below 15 Years of Age in Public
and Private Undertakings, Amending for This Purpose Section 12, Article VIII of R.A. 7610.

166
nor impair the childs normal development. Further, the parent of such working child was
required to provide the prescribed primary and/or secondary education. These conditions
effectively combined the restrictions both in the Labor Code and the Child and Youth Welfare
Code into one law. The law provided:
Sec. 12. Employment of Children. Children below fifteen (15) years of age shall
not be employed except:
(1) When a child works directly under the sole responsibility of his parents or legal
guardian and where only members of the employers family are employed:
Provided, however, That his employment neither endangers his life, safety, health
and morals, nor impairs his normal development: Provided, further, That the parent
or legal guardian shall provide the said minor child with the prescribed primary
and/or secondary education;91
In accordance with this law, the Department of Labor and Employment issued its guidelines on
work for persons below 18 years of age.92 As expected, this directive dealt with child work
identified as hazardous and deleterious basing such characterizations on the laws standards of
endangering the childs life, safety, health, morals and normal development. This meant that
efforts were focused on ensuring that children were kept away from work lest they fall victim to
child labor.
G. THE 2003 LAW ON THE ELIMINATION OF THE WORST FORMS OF CHILD LABOR:
PRIORITIZATION OR REDUNDANCY
The current law governing child work in the Philippines attempts to combine two strategies that
the international community has grappled with: prohibition of child work through minimum age
legislation and the elimination of the worst forms of child labor. The last ten years of the 20th
century were characterized by strong influences from the UNCRC. In its formulation of child
work, the UNCRC was deeply rooted in a rights framework. Article 32 provides:
1. States Parties recognize the right of the child to be protected from economic
exploitation and from performing any work that is likely to be hazardous or to
interfere with the child's education, or to be harmful to the childs health or physical,

91

Ibid, s. 1.
Department Order No. 04 Series of 1999 (1999) Hazardous Work and Activities to Persons Below 18 Years of
Age.
92

167
mental, spiritual, moral or social development.93
The declaration that the child is to be protected from any work that is likely to be hazardous or
harmful implies that not all kinds of work are necessarily exploitative.94 Cullen agrees that the
UNCRC implicitly distinguishes between benign (permissible) and harmful (impermissible)
child work.95 This thinking clearly influenced the ILO to re-examine its approach to child
labor. In 1973, the ILO, through its Minimum Age Convention was focused on a framework of
prohibition against child work. It pushed for the progressive raising of the minimum age for
admission to work. Although there was considerable optimism in the beginning, this strategy
was later seen as nave.96 There was a growing consensus that it was impossible or at least
unrealistic to try to ban all instances of child work.97 Instead, the ILO through its Worst Forms
of Child Labour Convention, 1999 called on its member-states to take immediate and effective
measures to secure the prohibition and elimination of the worst forms of child labour as a matter
of urgency (emphasis added).98
At the international level, there was a movement away from minimum employable age
legislation and a new focus on addressing the most abusive and harmful types of child work.
That was precisely the approach of the ILO with its jump from the Minimum Age Convention,
1973 to the Worst Forms of Child Labour Convention, 1999: prioritize the abolition of the more
universally condemned practices of child labor rather than attempt to abolish all forms of child
employment which was the objective of minimum age legislation. In contrast however, the
Philippines attempts to do both: continue with the approach of setting a minimum employable
age and at the same time eliminate the worst forms of child labor. It does this through its Act
Providing for the Elimination of the Worst Forms of Child Labor and Affording Stronger
Protection for the Working Child99 passed three years after ratifying the Worst Forms of Child
Labour Convention in 2000.
93

UNCRC, supra note 49, art. 32(1).


Detrick, supra note 15.
95
Cullen, supra note 12 at 93.
96
Cunningham and Stromquist, supra note 31 at 73.
97
Cullen, supra note 12 at 93.
98
Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child
Labour (entered into force 19 November 2000) [C182 ILO Worst Forms of Child Labour Convention, 1999], art. 1.
99
Republic Act No. 9231 (2003) An Act Providing for the Elimination of the Worst Forms of Child Labor and
Affording Stronger Protection for the Working Child, Amending for This Purpose Republic Act No. 7610, As
Amended, Otherwise Known as the Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act.
94

168

The problem with the Philippine approach embodied in this 2003 law is conflation.
Unfortunately, the law does not seem to distinguish between child work in general and its worst
forms. As can easily be seen, unlike the international movement that prioritizes the elimination
of the worst forms of child labor through its specific targeting of these forms of child labor, the
current Philippine law merely adds the elimination of worst forms of child labor to the already
existing framework of the general prohibition of child work embodied in its amended Anti-Child
Abuse law. Thus, this 2003 act was passed not as a separate law specifically targeting the worst
forms of child labor but merely as an addition to the current articulation of the Anti-Child Abuse
law. This meant that the elimination of the worst forms of child labor was an additional
protection that the state had to provide for children aside from the special protection already
undertaken from conditions prejudicial to their development including child labor.100 Looking
at the ILO Convention, precisely because it shifts its focus on the elimination of the worst forms
of child labor, there is no mention of the minimum employable age. However, in the Philippine
law, the elimination of the worst forms of child labor is simply attached to its already existing
prohibitions on child work in general that still includes minimum employable age among others.
It does not actually shift the focus to the worst forms of child labor rather, it sees this as an
additional agenda to its prohibition of child labor.
The conflation becomes even more apparent as there is an overlap of definitions. Child labor
refers to any work or economic activity performed by a child that subjects him/her to any form
of exploitation or is harmful to his/her health and safety or physical, mental or psychosocial
development101 whereas the worst forms of child labor are:
1) All forms of slavery, as defined under the Anti-trafficking in Persons Act of
2003, or practices similar to slavery such as sale and trafficking of children, debt
bondage and serfdom and forced or compulsory labor, including recruitment of
children for use in armed conflict; or
2) The use, procuring, offering or exposing of a child for prostitution, for the
production of pornography or for pornographic performances; or
3) The use, procuring or offering of a child for illegal or illicit activities, including
100

Ibid, s. 1.
Department Order No. 65-04 (2004) Rules and Regulations Implementing Republic Act No. 9231 Amending R.A.
7610, as amended, s. 3(b).
101

169
the production and trafficking of dangerous drugs and volatile substances prohibited
under existing laws; or
4) Work which, by its nature or the circumstances in which it is carried out, is
hazardous or likely to be harmful to the health, safety or morals of children, such
that it:
a) Debases, degrades or demeans the intrinsic worth and dignity of a child as a
human being; or
b) Exposes the child to physical, emotional or sexual abuse, or is found to be highly
stressful psychologically or may prejudice morals; or
c) Is performed underground, underwater or at dangerous heights; or
d) Involves the use of dangerous machinery, equipment and tools such as powerdriven or explosive power-actuated tools; or
e) Exposes the child to physical danger such as, but not limited to the dangerous
feats of balancing, physical strength or contortion, or which requires the manual
transport of heavy loads; or
f) Is performed in an unhealthy environment exposing the child to hazardous
working conditions, elements, substances, co-agents or processes involving ionizing,
radiation, fire, flammable substances, noxious components and the like, or to
extreme temperatures, noise levels, or vibrations; or
g) Is performed under particularly difficult conditions; or
h) Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans,
nematodes and other parasites; or
i) Involves the manufacture or handling of explosives and other pyrotechnic
products (emphasis added).102
The question is whether the law actually targets the worst forms of child labor. More
fundamental is the question of how different are the worst forms of child labor from child labor
in general or from any other form of child work for that matter. Based on the definition, the
worst forms of child labor include work that is hazardous or likely to be harmful to the health,
safety or morals of children, which is how the law has consistently defined child labor in general
(that is not the worst form). Because the law continues to use the same less than objective
standards of harm, safety, morals and normal development that it has consistently used in its
long history to justify its framework of prohibiting child work, there is now no substantial
difference between the worst forms of child labor and the already prohibited and highly
regulated (not worst-)child labor. The same standards used to justify the prohibition of child
work in the past are the same standards used to address the worst forms of child labor. At best,
what a worst forms of child labor articulation achieves is simply a reiteration of the
characterization of child labor as repulsive that merits the laws disapproval.
102

Republic Act No. 9231, supra note 99, s. 12-D.

170

Equally worth highlighting is the fact that even after almost a century of prohibiting child work
through minimum age legislation, the phenomenon of child work still persists. The irony is that
the most visible child workers have been so commonplace that they have in fact, been rendered
invisible.103 At the same time, the rest of the working children, considered the majority, who are
workers in rural areas in household-operated or small farms/businesses remain undetected by
state scrutiny.104 In fact, this was the primary motivation for the international community to
move away from minimum age legislation. Because this strategy was not producing the results it
intended, the ILO refocused its efforts towards a more realistic objective of targeting the worst
forms of child labor. However, despite such realization, the current Philippine law chooses to
merely add the elimination of the worst forms of child labor to its existing agenda of prohibiting
child work. Such merging of objectives not only takes away the focus from a more realistic goal
but also strains resources jeopardizing efforts to reach those in the worst forms of child labor.
Thus, a recent study on child labor suggested that hazards present in a particular form of child
work must be carefully examined whether they are the results of general poverty, child work in
general or specific forms child labor.105 The observation in that study is telling:
In the meantime, the government can ill-afford to use up societys limited resources
on poorly designed programs to eliminate child labor. This brings up the importance
of tracing the negative consequences of child labor to specific activities, work
environments, or even particular forms of child work. Such information can form the
basis for alternative courses of action to deal with child labor.106
III. CHILD WORK LAWS AND POLICIES:
A DOMINANT CONSTRUCTION OF CHILDREN AND CHILDHOOD
An examination of the legislative history of child work reveals that laws and policies have been
significantly influenced by the dominant paradigm of children and childhood. This has impacted

103

James, Jenks and Prout, supra note 10 at 109. See e.g. Catherine Scerri, Sagip or Huli?: Rescue of Street
Children in Caloocan, Manila, Pasay and Quezon City (Manila: Bahay Tuluyan and UNICEF Philippines, 2009).
See also the discussion in the succeeding Chapter on Youth Justice that looks at how the State has used the criminal
justice system (e.g. law on vagrancy) to respond to working children on the streets.
104
See 2001 Philippine Survey, supra note 7.
105
Emmanuel Esguerra, An Analysis of the Causes and Consequences of Child Labor in the Philippines online:
International
Labor
Organization:
ILO-IPEC
<http://www.ilo.org/ipecinfo/product/viewProduct.do?productId=3688> at 33.
106
Ibid.

171
the legal response to child work. By prescribing conditions and circumstances of child work,
law and policy define childrens capacities and vulnerabilities in a very specific manner.
Likewise, the legal system insists on certain expectations and outcomes from children.
Deviations from this norm are met with the appropriate response embodied in the universal
agenda of rescuing children as objects of protection.
From the long history of laws and policies governing child work in the Philippines, there has
been a lack of a definitional clarity of work for children and correspondingly, permissible and
prohibited work. Attempts to define child work have raised concerns for being biased, restrictive
and unrealistic. These definitions of work have been largely influenced by dominant paradigms
of children and children. They rely on age, contributions to the national economy, adult
standards of output or productivity and other similar parameters. Yet they do not take into
account the most basic fact that child work is done by children. Not only are these definitions
imprecise representations of the real lives of children but more importantly, they ignore the
child, who is the subject of the definition in the first place. Equally problematic is the adult
undertaking of defining work by distinguishing between acceptable and prohibited child work.
The exercise of dividing work into seemingly clear-cut categories makes it appear that such
distinctions are objective standards rather than conscious or at times instinctive decisions
that reflect certain interests and assumptions. In fact, the creation of such labels as children in
productive activities, light work, child labor, harmful work and other such terms to
distinguish between acceptable and prohibited child work have created the impression that child
work easily fits into either permissible or prohibited work. In reality, each expression is used
with the intention of conveying a certain signification that evokes a specific response from law
and policy.
Child work laws in the Philippines have been operating under the framework of prohibition of
work for children as evidenced by its consistent use of minimum age legislation. Under this
approach, prohibition of child work is the norm while permissible child work is an exception.
To this end, laws have relied heavily on the twin standards of age and harm as if these were
straightforward and purely objective to rationalize this prohibitory framework. The focus on
prohibiting age-inappropriate and harmful work for children has in fact transformed the
language of child work to the morally reprehensible child labor. Yet the legal history of child

172
work shows that the standard of age has constantly changed with each law while harm has been
understood in a multitude of ways. This legislative history not only shows the changing
assumptions, interests and agendas involved in regulating child work but also confirms a
socially constructed childhood heavily influenced by the dominant paradigms. As pointed out by
researchers, definitions and evaluations of childrens work [imply] certain prior decisions and
[reflect] certain interests[they] also [include] as a rule culture specific assumptions.107 This
section examines those decisions, interests and assumptions that shape child work legislation in
the Philippines.
A. AGE IS A DEFINITIONAL MARKER
The most fundamental decision embodied in child work laws is the use of age as a definitional
marker. Whether the law prescribes a minimum employable age or determines the specific ages
for particular industries or tasks, age is decidedly the key determinant of what children can or
cannot do or more precisely what children are allowed or not allowed to do. The legislative
history of child work in the Philippines clearly demonstrates this determination. Age has been at
the center of child work regulations. The legal system has no difficulty countenancing child
work laws that do not even provide a definition of what constitutes work so long as they
establish the age for regulation. Age provides a most straightforward measure that establishes
uniformity and facilitates monitoring and enforcement.
The law assumes that since age is a fixed characteristic, it necessarily translates into a normative
concept. In this sense, age is used in child work legislation to quantify competence. So when the
law utilizes a certain age as the basis for its regulation (say, minimum employable age), that
decision is implicitly based on the assumed competency or lack thereof of the child at that
specific age. This is believed to be effective because of the assumption that children follow a
universal pattern of development; that every child neatly fits into an established structure of
childhood where he/she goes through the same predictable stages. Such consistency provides
the legal system with the ability to adopt a uniform and effective response i.e. age-appropriate
labor laws. This clearly ignores the highly contextualized realities of childrens lives. As
Boyden et al. warn:
107

Liebel, supra note 33 at 46.

173
Clearly children are raised in different ways and with different expectations in
different parts of the world. They thrive, and indeed flourish, in widely contrasting
conditions and circumstances and have different capacities and needs, to which a
universal child development model which is based on only one type of childhood
is not sensitive.108
The use of age as an indicator cannot be more evident than in minimum age legislation. The
minimum employable age has changed a number of times ranging from the lowest age of 12 in
1971109 (increased to 14 two years later110) to the current age of 15111 originally adopted in
1974.112 Whether the language used is permissive or prohibitory, a minimum age for
employment assumes that work is not the proper place for children and that the law should
keep children out of this world. Furthermore, the setting of a minimum age for work assumes
that childhood is and can be defined, and uniformly at that, based on age.
Internationally, minimum age legislation has been recognized in the various ILO minimum age
conventions culminating in the Minimum Age Convention, 1973113 which the Philippines
ratified in 1998. The approach of that Convention, as with other minimum age legislation, is to
decree that children below a certain age should not be in work and that their employment
should, in fact, be prohibited. Although the Convention prescribes 15 years old as the minimum
employable age, it also enjoins states to progressively raise that age. The first article of the
Convention is most telling as it is based on an approach of abolishing all child labor by
progressively raising the minimum age for employment. The policy not only promotes but also
imposes an idealized version of childhood. As Boyden et al. argue:
The minimum age standard expresses an ideal of childhood as a privileged phase of
life properly dedicated only to play and schooling, and with an extended period of
dependence during which economic activity is discouraged or actually denied.114
Cullen critiques the minimum age legislation approach thus:

108

Boyden, et al., supra note 32 at 39.


Republic Act No. 6237, supra note 75, s. 1.
110
Presidential Decree No. 148, supra note 77, s. 1.
111
Republic Act No. 9231, supra note 99, s. 2.
112
Labor Code, supra note 79, art. 139.
113
C138 Minimum Age Convention, supra note 22.
114
Boyden, et al., supra note 32 at 195.
109

174
Unrealistic rules on minimum age can have the effect of driving child work
underground, where employers conceal the use of the underaged and the conditions
under which they work. Moreover, precisely because minimum age conventions
focus on preventing the employment of underage workers, they naturally do not
encourage states to adopt protective legislation (minimum wage, health, and safety)
on behalf of such workers, as adopting protective rules for working children
acknowledges their existence.115
B. ALL CHILD WORK IS CHILD LABOR
A review of the laws and policies governing child work reveals that the phenomenon has
persistently been described in terms of the harmful and damaging effects it has on children and
childhood. Child work then became articulated in a value-laden language that of the morally
reprehensible child labor. The association of child work with harm and abuse that led to its
conflation with child labor is the result of almost a century of a prohibitory legal approach to
child work. In its early legal history, child work was merely regulated which allowed for an
open recognition of children in work. However, with the introduction of explicitly prohibitive
language in child work laws, work became a forbidden context for children. Any child who
entered the work force was at risk and needed to be removed from that situation. This even led
child work to be an issue of child abuse and protection.
The introduction of standards that attempted to distinguish child labor and other forms of child
work, in fact, accomplished the contrary. The introduction of undefined standards such as harm,
health, morals, normal development and the like have been used to justify a pejorative
characterization of child work that equated all forms of child work with child labor. This has led
to the subsequent antagonism towards all forms of child work meriting its total abolition.
Because these standards were undefined and subjective, the question really has been: in what
context has the law used these standards? Throughout its legislative history, child work laws
have understood these standards based on a specific nature of the child a protected, healthy,
moral and normal child treading a precise path of development. The childhood used as the
ideal represents the dominant paradigm. Thus, working children are bound to fail to measure up
to the standard that was not devised for them in the first place. A childhood maintaining work
and economic participation goes against the norm of a happy, innocent and protected childhood
115

Cullen, supra note 12 at 90-91.

175
characterized by affection and education. So the response is that instinctively a working child is
in a harmful situation and needs to be removed from work and returned to a normal
childhood. Thus, James, Jenks and Prout write:
By making the distinction between work and labour turn on moral judgments about
what promotes healthy development for children, writings on child labour often fail
to make specific distinctions between different forms of labour.116
The Philippines has, in fact, opened up the official definition of child labor to an expansive
characterization as work that deprives [children] of their childhood, their potential and their
dignity.117 Such an understanding in effect, subsumes all types of child work. Treating all child
work as child labor is further bolstered by the state view that all working children are
basically at risk: the ultimate objective of society should therefore be the elimination of child
labour.118 Instead of looking at the actual conditions and circumstances of each type of work
for children, the state merely relies on the standard of an idealized child and childhood. Such
ideal is a social construction based on organic, romantic and utilitarian views of children and
childhood. Because childhood has been constructed as a time solely for innocence, dependency,
play and schooling, any type of work for the child goes against the order of nature. Simply put,
child work is a violation of childhood and that in itself brings harm to the child.
As a result of the conflation, a child working in a safe environment is considered to be as much
in need of rescue as a child in an exploitative work situation simply because both are in the
world of work. The rhetoric of child abuse has further aggravated the situation. The definition of
child abuse uses the same standard of harm as work laws, implying that child work necessarily
entails child abuse. The state has thus come to see every instance of child work as child abuse
whether actual or potential. This subjects working children to more policing, which ironically
now makes them vulnerable targets of abuse and exploitation.119
C. PERMISSIBLE CHILD WORK IS NOT WORK

116

James, Jenks and Prout, supra note 10 at 110.


Bureau of Women and Young Workers, Philippine Program Against Child Labor Plan of Action 2008-2010 at 7.
118
International Labor Organization-International Programme for the Elimination of Child Labour (ILO-IPEC),
Attacking Child Labour in the Philippines: An Indicative Framework for Philippine-ILO Action based on the
National Planning Workshop on Child Labour held in Manila from July 26 to 29, 1994 at 4.
119
See e.g. Scerri, supra note 103.
117

176
As observed earlier, the legislative history of child work has shown that work has never really
been defined. Instead, the law jumps into categorizing child work as either permissible or
prohibited. The law does this by providing for permissible child work articulated as an
exception to the general framework of prohibiting child work. So it would seem that the law
does allow for some forms of child work. However, upon closer scrutiny, these exceptions are
indeed permissible but the issue is whether they are considered work. In evaluating these
activities, the law relies heavily once again on the dominant constructions of children and
childhood. Consistent with the belief that work is inconsistent with children and childhood,
permissible work then is construed as non-work. With this, the law is able to address a range of
childrens activities that exist but which do not fit within its construction of child labor.
1. WORK UNDER THE SOLE RESPONSIBILITY OF THE PARENTS
Consistently present in the history of child work laws has been the qualifier that children of any
age, even those below the minimum employable age, may perform work in the parental home
or farm or under the sole responsibility of the parent or guardian. The most fundamental of this
type of work is domestic work, which is expressly excluded as non-work under laws and
policies.
Statistical data, which has been the primary impetus for child work policy, expressly excludes
domestic work as an identifier of the working child. In the comprehensive 2001 Survey on
Children 5-17 Years Old (2001 Philippine Survey)120 conducted by the National Statistics Office
(NSO) in collaboration with the International Labor Organization-International Programme on
the Elimination of Child Labour (ILO-IPEC), working Filipino children are counted as the 4
million 5 to 17 year-olds engaged in an economic activity.121 Economic activity expressly
excludes household work referred to as housekeeping in the survey. Housekeeping is
defined as:
non-economic activities done at home such as cleaning and maintaining dwelling
units including small repair, preparing and serving meals, caring for the sick, infirm
and old people. No payment or remuneration is received for doing any of these
120
121

2001 Philippine Survey, supra note 7.


Ibid at 23.

177
activities. If a child receives any payment, that person is considered as working.122
From this definition, the exclusion of housekeeping from work is not because of the work itself
but rather because it is unpaid. If the child were to do the same work in the same situation but
with payment, it then becomes an economic activity. But more than the issue of being unpaid,
domestic work done mostly by girls within their own family is excluded as work because it
is regarded simply as assisting without any economic value. This type of activity is seen as
having no economic consequence, being unpaid and done by children within their own family. It
is relegated to the category of mere help which does not warrant official recognition.123 Such a
view fails to consider the fact that parents are able to perform paid employment outside of the
household because of this unrecognized work by children making it essential to the family
economy. The work is trivialized not only because it is unpaid, but more importantly, because it
is done by children and girls at that. So a child doing an hour of economic activity and 5 to 6
hours of housework is considered working for only an hour.
Ironically, despite the exclusion of household work from economic activities, the 2001
Philippine Survey still prominently looks at housekeeping activities by children as part of the
economic characteristic of working children.124 In its characterization of the working child, the
survey looks at how these children combine work with three specific activities: schooling,
looking for work and housekeeping. More telling, in analyzing the other activities of working
children,125 the survey looks at two specific activities of working children relevant to their
being considered as working children: 1) their secondary occupation;126 and 2) their
housekeeping activity.127 The survey, in fact, reveals that almost 91.5% or 3.7 million of all 5
to17 year old working children performed housekeeping activities,128 some even going beyond
10 hours every week.129 This importance given to housekeeping activities of children seems
paradoxical given that it is excluded from economic activities in the first place. This
122

Ibid at 7.
Similarly, there is a whole discourse about domestic work within ones home traditionally considered (adult-)
female tasks not being classified as work at all simply because they are seen as a necessary consequence of being a
woman. See e.g. Anne Statham, et al., eds, The Worth of Womens Work: A Qualitative Synthesis (Albany: State
University of New York Press, 1988).
124
2001 Philippine Survey, supra note 7 at 28.
125
Ibid at 65.
126
Ibid at 66.
127
Ibid at 72.
128
Ibid.
129
Ibid at 73.
123

178
highlighting of housekeeping activities of children is an implicit recognition that removing
domestic work from the definition of child work is far more complicated than imagined.
If we were to use household work as a child labor indicator, as done for example in the
Philippines Child Labour Data Country Brief,130 it would become apparent that children in the
Philippines are introduced early into the world of work. Female children, for example, are
expected from a very young age to do chores such as taking care of their siblings, cleaning the
house, washing the dishes and cooking rice.131 As early as age seven, girls act as mother
substitutes.132 Boys, on the other hand, do the work done by their fathers.133 Sons of fishermen
assist by running the motor, paddling, repairing agricultural implements or mending fish gear.134
As children grow into puberty, their tasks increase with an emphasis on division of labor.135
Jocano observes:
In the farm, the girls do light tasks like planting and harvesting; the boys do the
heavier ones like plowing, harrowing, and hauling. Occasionally, the girls may tend
to the carabaos, goats, and cows, but the greater part of their work schedule is at
home cooking, taking care of their siblings, feeding the chickens and pigs, and
laundering the clothes. The men fetch water and chop firewood, but women do these
tasks also when work schedules in the field are tight.136
Even if domestic work were not to be explicitly excluded as work, it would still be
characterized as work that is part of the childs socialization.137 Camacho writes: These are
work activities that are usually done in the home under the parents supervision and largely
considered as beneficial to the childs development.138 From a regulation point of view, these
activities will come under the label of work done in the home or work under the sole
responsibility of the parent. Not only do these activities perform an important socializing role,
130

International Programme on the Elimination of Child Labour, Philippines Child Labour Data Country Brief
(Geneva: International Labor Office, 2008).
131
Elizabeth Protacio, et al., Trust and Power: Child Abuse in the Eyes of the Child and the Parent (Manila: Save
the Children UK and the United Nations Childrens Fund, 2001).
132
Ma. Emma Concepcion Liwag, et al., How We Raise our Daughters and Sons: Child-Rearing and Gender
Socialization in the Philippines (Manila: UNICEF/Ateneo Wellness Center, 1999).
133
Del Rosario and Bonga, supra note 58.
134
Liwag, et al., supra note 132.
135
These gender- and age-based divisions of labor are borne out by statistical data. Girls are more likely than boys
to participate in household chores just as older children are likely to do more of these chores. International
Programme on the Elimination of Child Labour, supra note 130.
136
Felipe Landa Jocano, Filipino Social Organization: Traditional Kinship and Family Organization (Metro
Manila, Philippines: Punlad Research House, 1998) at 129.
137
Camacho, supra note 55 at 15.
138
Ibid.

179
but they also validate dominant constructions of children and childhood. The home, together
with the school, is prescriptively where [children] should be located.139 Working with ones
parents in the home is what a normal childhood entails. Through these activities, the child is
prepared for adult responsibilities. This is consistent with the understanding that a child does not
become an adult until he/she is taught or trained to become one. Childhood is therefore a
preparation for adulthood; teaching children through these non-work activities shapes them to
become proper adults.
2. LIGHT WORK
Closely linked to work under parental supervision is the concept of light work. At certain points
the law has allowed children below a certain age to perform only light work. Although not
present in the current law, the concept of light work first appeared in the 1952 law140 and was
retained in the 1971 law.141 The ILO Minimum Age Convention, 1973 treats light work as an
exception to the minimum employable age.142 Although never defined, light work demonstrated
a particular characterization not only of childrens capacities (or their lack thereof), but of their
contributions as well. In allowing only light work for children in certain instances, the law
assumed that children were in fact only capable of doing work to that extent. Such work was
viewed as less than what a fully functioning member of society143 could accomplish. These
activities could not be valued as work because children were incomplete individuals who still
needed protection and guidance. The category of light work afforded children protection from
being burdened with adult responsibilities and at the same time provided them with the
gradual process of being introduced into the real world.

139

Rosalind Edwards, Introduction: Conceptualising Relationships Between and Home and School in Childrens
Lives in Rosalind Edwards, ed, Children, Home and School: Regulation, Autonomy or Connection? (London:
RoutledgeFalmer, 2002) at 4.
140
Republic Act No. 679, supra note 69.
141
Republic Act No. 6237, supra note 75.
142
C138 Minimum Age Convention, supra note 22, art. 7 provides:
1. National laws or regulations may permit the employment or work of persons 13 to 15 years of age
on light work which is-(a) not likely to be harmful to their health or development; and
(b) not such as to prejudice their attendance at school, their participation in vocational orientation or
training programmes approved by the competent authority or their capacity to benefit from the
instruction received.
143
Camacho, supra note 55 at 14.

180
3. PRIVILEGED WORK
As described by Liebel, an important development in the phenomenon of working children was
the emergence of children in the media:
The vigorous expansion in the media and advertising market has brought about
many very attractive new working opportunities for children. They range from
participation in public performances within a show-business and media context to
the designing of their own websites.
Many of these jobs are attractive, because they offer relatively high chances for
earning money, but also because they are accompanied by public attention and
correspond to narcissistic desires. Working on radio, in television or even in film is
seen as a privileged activity by children. The expectations of lucrative payment are
in this regard particularly attractive, as is a popularity which is accompanied by high
regard and an improvement in the social standing (of the child and its parents)
among ones contemporaries. Another factor which cannot be disregarded is the
parents pride in their offspring.144
More fascinating than the growth of this industry is the privilege accorded to it by child labor
laws. Beginning in 1993, Philippine law explicitly recognized and allowed these types of
activities. In the current 2003 child labor law, this particular type of work is an exception to
the minimum employable age regulation. Particularly, the law allows children below 15 years of
age to work in public entertainment or the media as follows:
Sec. 12. Employment of Children. Children below fifteen (15) years of age shall
not be employed except:
xxx
2) Where a childs employment or participation in public entertainment or
information through cinema, theater, radio or television or other forms of media is
essential: Provided, That the employment contract is concluded by the childs
parents or legal guardian, with the express agreement of the child concerned, if
possible, and the approval of the Department of Labor and Employment: and
Provided, further, That the following requirements in all instances are strictly
complied with:
(a) The employer shall ensure the protection, health, safety, morals and normal
development of the child;
144

Manfred Liebel, Between Prohibition and Praise: Some Hidden Aspects of Childrens Work in Affluent
Societies in Beatrice Hungerland, et al, eds, Working to Be Someone Child Focused Research and Practice with
Working Children (London: Jessica Kingsley Publishers, 2007) at 124.

181
(b) The employer shall institute measures to prevent the childs exploitation or
discrimination taking into account the system and level of remuneration, and the
duration and arrangement of working time; and
(c) The employer shall formulate and implement, subject to the approval and
supervision of competent authorities, a continuing program for training and skills
acquisition of the child.
In the above-exceptional cases where any such child may be employed, the
employer shall first secure, before engaging such child, a work permit from the
Department of Labor and Employment which shall ensure observance of the above
requirements.145
A number of reasons have been proffered to justify the privileged position accorded to child
media work. Some of these justifications are economic, while others are sentimental. Whatever
the reason, these activities are not seen as work consistent with the laws disapproval of child
work. It is precisely because of the privilege given to child media work that the law does not
consider it as work. Liebel asserts that this type of work is accompanied with prestige, fame,
relatively high earnings and the promise of a careeralsoit creates in children the
impression that they belong to the chosen ones.146 This characterization removes it from the
ambit of morally repugnant child labor. As well, these activities can also be considered a form
of light work. Requiring only a few moments of mental effort, such activities are similar to
childrens play.147
More importantly, these children are paid to be children. In this kind of work, what the law sees
is not the working child but what the child represents. The charm, purity and innocence of these
representations all evocative of the ideals of childhood mask the fact that the child is
working. Consequently, the child is just being a child. Zelizer illustrates how children working
in public entertainment have been sentimentalized, specifically in American history:
the sentimental dramas of the day worked to their highest pitch by the
introduction of a tender infant, or a docile child. In the twentieth century, theatre
enthusiasts raved about the child-value in plays, the emanation of the spirit of
childhood; an emanation that only a little child can convincingly give forth.
[F]or except as you are a little child, you shall not enter the kingdom of
happiness. [T]he charm of the child on the stage is its childishness. [T]hese

145

Republic Act No. 9231, supra note 99, s. 2.


Liebel, supra note 144 at 125.
147
Zelizer, supra note 6 at 92-93.
146

182
little folk of the theatre assures you that they belong as much to the land of dolls and
tin soldiers as to the realm of limelight and rouge.148
D. ADULTS KNOW BEST
Implicit in all of the child labor laws and policies is that adults are empowered to act on
childrens behalf in order to protect them and their best interests. A clear demonstration of this is
the articulation of what constitutes work and the characterization of permissible and prohibited
work. As discussed earlier, understandings of work rely heavily on adult standards such as age,
contributions to the national economy, output or productivity and other similar parameters. As
well, adults are the ones to gauge and assess the harm brought by child labor to children and
their childhood. Verhellen, for example, talks about adult control through the concept of
adulto-centricity.149 According to her, adults keep using their power to make their definitions
dominant by oppressing the childs meaning-making capacities or at least by considering them
as inferior.150 Thus, harm is made to appear as an objective standard in examining child work
but in reality is an adult imposition based on its agenda of prohibiting child work.
Consider the following observations of the participants in the National Planning Workshop on
Child Labour:
Today, however, we also find hundreds of thousands of Filipino children being
deprived of the opportunity to share in the prospects of development. The door of
opportunity is closed on them because their childhood is wasted on premature work
rather than nurtured in school and at play. Deprived of an opportunity for education
and of appropriate social, cultural, physical and psychological development, their
capacity to contribute to society as adults is seriously being jeopardized (emphasis
added).151
These adult opinions not only marginalize childrens realities but, more importantly, deny their
lived experiences. Most striking in this perspective is the notion that work simply wastes a
childs childhood and that such activity is of no value in contributing to society. The law needs

148

Ibid at 95.
Eugeen Verhellen, Children and Participation Rights in Pia-Liisa Heilio, Erja Lauronen and Marjatta Bardy,
eds, Politics of Childhood and Children at Risk: Provision Protection Participation (Vienna: European Centre for
Social Welfare Policy and Research, 1993) at 50.
150
Ibid.
151
Bureau of Women and Young Workers, supra note 117 at foreword.
149

183
to protect children from work because of their potential to become economically productive
adults. The current worth of the childs work is simply disregarded and made invisible.
The right to protection is a clearly recognized right of children. The UNCRC, most prominently,
establishes the standard to be used in all actions concerning children: the best interests of the
child.152 This is not to suggest, however, that applying these standards is straightforward.
Lansdown explains:
The conventional view of protection has been a one-way process, with adults as
agents and children as recipients. What is now needed is a more sophisticated
approach, in which it is understood as a dynamic process in which adults take
responsibility for keeping children safe by listening to and respecting their
perspectives, while empowering them to contribute towards their own protection.153
The insistence on adult standards is clearly related to the idea of childhood as a period of
dependency that is part of the dominant paradigm. As dependents, children need adults to
protect them and make decisions for them. In the discourse of child work, the imposition of
adultist standards based on a view of children as dependent has resulted in laws that focus on
removing children from the world of work. Since children are cast as weak and vulnerable
members of our society, it is not surprising that they are made invisible. As Oakley observes:
[their] welfare[is] based not on asking them what they want or need, but on what
other people consider to be the case. It is a philosophy of exclusion and control
dressed up as protection, and dependent on the notion that those who are protected
must be so because they are deemed incapable of looking after themselves.154
IV. REFORMULATING CHILD WORK LEGISLATION:
CHILDREN AND PARTICIPATION
An approach to child work that rests exclusively on a prohibitory regime is not only simplistic
152

UNCRC, supra note 49, art. 3(1) provides:


In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
153
Gerison Lansdown, International Developments in Childrens Participation: Lessons and Challenges in E. Kay
Tisdall et al., eds, Children, Young People and Social Exclusion Participation for What? (Great Britain: The Policy
Press, 2006) at 149.
154
Ann Oakley, Women and Children First and Last: Parallels and Differences between Childrens and Womens
Studies in Berry Mayall, ed, Childrens Childhoods Observed and Experienced (London: The Falmer Press, 1994)
at 16.

184
but also shortsighted. Such an approach fails to recognize the context within which child work
exists e.g. families live in poverty and face severe constraints. In the 2000 Family Income and
Expenditure Survey of the National Statistics Office (NSO),155 the number of poor families in
the Philippines had reached 5.1 million.156 This means, as suggested by one researcher, action
against child labor should, therefore, concentrate on understanding the constraints faced by
families and removing them.157 Within these families is a child who lives that reality and is
able to construct an understanding of their circumstances.
This perceptive child is at the core of the emerging paradigm. The starting point of such
paradigm is the recognition of children and their participation i.e. their rights, realities and
relationships. Since much of the legal and policy frameworks on child work have depended on
an idealized construction of children and childhood, it is unsurprising that children have been
pushed to the periphery treated either as deviants or victims. When the legal system accepts in
toto a child work framework that is exclusively based on a dominant paradigm of children and
childhood, not only are working children denied their voice but more importantly, they are
denied their identities.
The significance of an emerging paradigm primarily lies in broadening our understanding of
children and their lives. Such an understanding will be the basis of child work laws and policies
that are more responsive to the needs of children and more relevant to their lives. So the
question is: in reformulating laws and policies on child work, who is the child and what reality
does the child live?
A. AN EQUALLY REAL CHILDHOOD
As has been emphasized throughout this chapter, child work laws in the Philippines have
operated under a framework of prohibiting children from work. This is fundamentally based on
a work-deprives-childhood argument. The rationale is that children do not belong in the world
of work. The childhood that the law endorses is clearly a work-free period where children are
155

National Statistics Office, 2000 Family Income and Expenditure Survey (FIES) Final Release on Poverty
online: National Statistics Office: NSO <http://www.census.gov.ph/data/sectordata/2000/ie00pftx.html>.
156
Ibid.
157
Esguerra, supra note 105.

185
neither unfairly burdened by economic responsibilities nor endangered and corrupted by the
hazards of the workplace.158 This is based on the dominant construction of childhood. But as the
emerging paradigm broadens our understandings of childhood, we are able to appreciate the
diversity of childhoods. There is the childhood based on the reality that children, in fact, are
working. The 2001 Philippine Survey revealed that of the almost 25 million 5 to 17 year-olds in
the Philippines, almost 20% or about 4 million were engaged in an economic activity.159 Some
of these children even held two occupations.160 These children worked as laborers; service, shop
or sales attendants; or farmers and fishermen. They could be found in various industries, with
58.5% of them in agriculture, 31.7% in the service sector (including retail, transportation, hotels
and restaurants and domestic work) and the rest in mining, manufacturing, construction and
other similar industries.161 This means that work is a reality in the childhood of millions of
children. An idealized norm of childhood will not make this childhood any less real nor will it
take away the actual experiences of these children. Using the work-free childhood to measure
the diverse realities of children creates what Minow calls exclusion.162 She explains: shifting
perspectives exposes how a difference depends on a relationship, a comparison drawn between
people with reference to a norm. And making this reference point explicit opens up the
debate.163
B. A CAPABLE AND PERCEPTIVE CHILD
An argument espoused by the dominant paradigm used in justifying the prohibition of child
work is the childs lack of capacity. Child work laws purport to use age as an accurate and
objective indicator of the capacities of a child. But what the emerging paradigm offers, as
Boyden, et al. posit, is a recognition that development is not a single built-in process through
set stages the same for all children.164 They write further:
158

Myers, supra note 48 at 30.


It should be noted that the number of working children has increased in 2011 as revealed in the preliminary
results of the 2011 Survey on Children, supra note 7. According to this report, there were 5.492 million working
children from the ages of 5-17 in the Philippines in 2011. However, since the National Statistics Office has only
released the preliminary results, facts and figures from the 2001 Philippine Survey are used.
160
2001 Philippine Survey, supra note 7 at 66.
161
Ibid at 31.
162
Martha Minow, Making All the Difference Inclusion, Exclusion and American Law (New York: Cornell
University Press, 1990).
163
Ibid at 377.
164
Boyden, et al., supra note 32 at 36.
159

186
Children have multiple capacities, which can be fostered in many different ways, but
assumptions about child nature, the goals of child development, and how best to
stimulate development in children vary greatly between societies; opinions are
widely divergent on what is appropriate learning experience in childhood and what
is not.
We have suggested that developmental outcome, or in other words the specific
psychological, social, and physical capabilities acquired by children, varies
significantly not just with individual capacity but also with experience, and with
beliefs and expectations to do with childhood in particular social and cultural
contexts.165
Understanding capacities does not simply involve a determination of age; rather it entails an
appreciation of competencies, opportunities and constraints, and responsibilities.166 Thus, child
work laws need to acknowledge that the use of age as an indicator of capacity is neither precise
nor objective. For example, children in the Philippines assume responsibilities in the homes167
and in family trades and businesses at varying ages some starting very young. In the homes,
childrens responsibilities include taking care of younger siblings, cleaning the house, washing
dishes, cooking meals for the family, fetching water, gathering firewood and feeding and
tending to their animals.168 Despite being excluded by child work legislation, household chores
show varying competencies, opportunities and responsibilities. In the workplace, some children
reported that they started working even before the age of five.169
In constructing child workers as helpless victims who are coerced into stressful and hazardous
environments, the law relies on notions of a nave and dependent child. Because the child is
incapable of making mature decisions, the decision for a child to work is either irrational or one
that is forced upon the child. Children should never be put in a situation where they will have to
sacrifice their childhood in order to work. Yet as discussed earlier, work is a reality for millions
of children. And for these children, it is clear that they either want to help in their own
household enterprise or supplement their family income.170

165

Ibid at 56-57.
Ibid.
167
Liwag, et al., supra note 132.
168
Felipe Jocano, Social Organization in Three Philippine Villages: An exploration in Rural Anthropology (Manila:
Centro Escolar University, 1988).
169
2001 Philippine Survey, supra note 7 at 24.
170
Ibid at 76.
166

187
Contrary to the characterization of children as immature, studies in fact show that children are
very perceptive about the circumstances of their family. Children are aware of the difficulties of
their families, for example when parents are unemployed or underemployed and additional
employment in the family is necessary.171 Rather than seeing the childs decision to work as
taking responsibility, it is characterized as an unfortunate and deplorable imposition on the
child. Child work is fundamentally the outcome of a family decision172 and in these family
decision making processes, the child plays a significant role. For example, in her study of child
domestic helpers, Camacho finds that:
The decision to work and to migrate is regarded by the children as their own, made
in consultation with other members of their families. This suggests two things: (1)
the increasing role afforded to and claimed by the children in matters affecting them,
and (2) the apparently favorable attitude of their families to child labour
migration.173
Even in instances where there is uncertainty or unwillingness to work among children, De Vries
contends:
[Some] children had to be prodded to work to help their family. While this may be
so, one cannot assume that they resent the idea of early work. Generally, these
children have manifested deriving a certain degree of self-worth as most of them
value the economic worth of their contribution to their family. [They] perceived
themselves to be a big help to the family. When asked why they have such a
perception, these children proudly said that kasi meron kaming pambili ng bugas
(because we will have money to buy rice). This claim is consistent with the
reportthat their earnings are spent for food. Further, some of the children even
narrated how happy they were during those times that they were able to share part of
their earnings to their brothers or sisters. Usually, these children would buy food for
their siblings whenever they get their share of their earnings. One girl even
mentioned that she is saving money to buy her sister a gift on her birthday.174

171

National Economic and Development Authority-UNICEF, Child Labor Survey Report of Selected Provinces in
Southern Tagalog Region online: Child Protection in the Philippines: Philippine Resource Network
<http://www.childprotection.org.ph/monthlyfeatures/archives/dec2000a.html>.
172
Esguerra, supra note 105.
173
Agnes Zenaida Camacho, Family, Child Labour and Migration: Child Domestic Workers in Metro Manila
(1997) 6 Childhood 57 at 70.
174
Saul de Vries, Child Labor in Agriculture: Causes, Conditions and Consequences online: Child Protection in
the
Philippines:
Philippine
Resource
Network
<http://www.childprotection.org.ph/monthlyfeatures/archives/dec2k2b.html> at 27.

188
Moreover, childrens contributions to the family economy are not only essential175 but also
substantial.176 As such, their actual work can no longer be undervalued and discriminated
against, but must be socially acknowledged.177 The fact is that children are active participants
in the family economy, including the decision to work. It is slowly being understood that
children see their own work not primarily as a burden, but as a legitimate right and an
opportunity to play a more active and important part in society.178 In one study, children
revealed that they value paid work because it gives them an adult status and a feeling of
belongingness in a bigger world of adults.179 Thus, contrary to the assumptions which inform
the law, children may not be unwilling and unwitting participants in the world of work and they
may not necessarily need rescuing.

C. A BROADER UNDERSTANDING OF HARM

As discussed in earlier sections, the association of child work with harm and abuse that led to its
conflation with child labor is the result of almost a century of a prohibitory legal approach to
child work. An examination of child work laws shows that there is absolutely no recognition of
the benefits of work for children. Instead, the focus is on protecting children from harmful and
hazardous tasks and undertakings. Such protection is highlighted by the recurring caution that
work should not harm the life, safety, health, morals and normal development of the child.
While policy is framed in terms of the negative impacts of work, research has shown that child
work cannot be sufficiently understood by its ill effects alone. In a comprehensive participatory
study on child work conducted in six countries, including the Philippines, Woodhead concluded:

International efforts to combat child labour inevitably concentrate on the harmful


effects of work, for example on the damage to physical and psychological health of
175

Ibid.
Chris Sakellariou, Child Labor and Schooling in the Philippines online: Child Protection in the Philippines:
Philippine Resource Network <http://www.childprotection.org.ph/monthlyfeatures/archives/july2k4b.html>.
177
Liebel, supra note 33 at 22.
178
Ibid at 10.
179
Marieta Baez-Sumagaysay, Emerging Issues and Concerns on the Working Youth in Eastern Visayas
online:
Child
Protection
in
the
Philippines:
Philippine
Resource
Network
<http://www.childprotection.org.ph/monthlyfeatures/archives/sept2k3b.html> at 12.
176

189
children in hazardous industries, the risks of violence and abuse to domestic
workers, etc. When the problem is framed as being about hazard, interventions that
eradicate harmful work from childrens lives seems appropriate. But work is not a
physical and psychological toxin, in this simple sense. A more complete picture of
the problem emerges from talking with working children themselves, who also
recognize many of the hazards, but are sustained by beliefs about the necessity of
their work and the value it brings to themselves and their family. International
opinion may judge these children to be misguided. But intervention must start from
childrens feelings as well as expert knowledge and public pressure.180

To fully understand the harm in child work, we need to understand how children interpret or
construct the meaning of their experiences. The way the law perceives harm may not necessarily
be the same way that the child sees it. In this sense, the child is active in defining the effective
environment for development, according to what kinds of activity they seek out, what kinds of
stimulation they attend to, and what selective interpretation they place on what they see, hear
and feel.181 Boyden, et al. point out:
It is important to consider whose judgment of risk prevails, what indicators of risk
are being used, how these are identified and by whom. Seldom are the views of the
protagonists, in this case working children, taken into account, although often their
perspective on risk is very different.182
For example, in the 2001 Philippine Survey, the most common problem reported by working
children was not that their work was stressful, that they were required to do heavy physical
work, or that their work was risky and dangerous. Instead, 1.5 million children (37.6%)183
reported that they were bored with their work. As another example, in the Woodhead study cited
earlier, working children indicated that the ill treatment they received from their employers,
customers, police and the public caused as much harm as the physical hazards in their work.184
As Boyden, et al. observe, the consequences of harm depend on the social and normative

180

Martin Woodhead, Childrens Perspectives on their Working Lives A Participatory Study in Bangladesh,
Ethiopia, The Philippines, Guatemala, El Salvador and Nicaragua (Sweden: Radda Barnen, 1998) at 61.
181
Boyden, et al., supra note 32 at 45.
182
Ibid at 86.
183
2001 Philippine Survey, supra note 7 at 85.
184
Woodhead, supra note 180.

190
context of work, the nature and severity of a hazard, and how children respond individually.185
Harm and hazard are not only conceptually ambiguous terms, but also misleading because:

Some children working in industries defined as hazardous may in fact be doing quite
safe jobs. By the same token, children working in generally safe industries can be
doing a dangerous job. Also, the tendency to list all the hazards associated with a
particular industry overlooks the question of their relative severity of impact;
whereas some hazard are really quite minor, others are life-threatening. Besides
some of the most serious hazards are not occupationally specific but prevalent across
all economic sectors, arising from a general deficit of safety measures and unsafe
working environments.186

D. A REALITY OF WORK AND SCHOOL


A fundamental assumption made by child labor laws is that children belong in schools and work
is harmful because it only serves to push them out of where they should be. From the earliest
child work law, the effect of work on the childs education has been an important criterion for
the determination of harm. The standard has been formulated in various ways: work shall not
prejudice the childs attendance in school;187 no work on school days unless the child knows
how to read and write;188 work shall not interfere with the childs schooling;189 or the most
recent, the parent or guardian shall provide the working child with the prescribed primary and/or
secondary education.190 Internationally, both the UNCRC and the ILO Minimum Age
Convention, 1973 also recognize the relationship between work and education. The UNCRC
provides that the child has the right to be protected from work that interferes with education191
while the ILO Convention prescribes that the minimum age for admission to work shall not be
less than the age of completion of compulsory schooling.192

185

Boyden, et al., supra note 32 at 79.


Ibid at 86.
187
Republic Act No. 679, supra note 69, s. 1(a)(2); Republic Act No. 6237, supra note 75, s. 1.
188
Ibid, s. 1(b); Ibid, s. 1.
189
Presidential Decree No. 148, supra note 77, s. 1; Labor Code, supra note 79, art. 139(a).
190
Republic Act No. 9231, supra note 99, s. 2.
191
UNCRC, supra note 49, art. 32(1).
192
C138 Minimum Age Convention, supra note 22, art. 2(3).
186

191
The legal system has seemed to suggest that the harmful effects of work on the childs education
can be understood rather simplistically. Contrary to the way the law makes it appear, the issue is
not just about choosing between work and education. The insistence on preserving the childs
education when the child is working (or is about to work) has merely served to dichotomize the
worlds of work and education children either work or go to school.
The 1987 Constitution mandates that elementary education is compulsory for all children of
school age.193 To this end, the State shall establish and maintain, a system of free public
education in the elementary and high school levels.194 There is no question that schools indeed
serve an important function in society. Not only does it create opportunities, but it also
facilitates growth and development. The concern with child work legislation is the belief that
working and attending school are mutually exclusive. By dichotomizing these two settings, the
law legitimizes the view that it is a choice between one or the other. Working children who
tread a path different from a safe and protected childhood then become the targets of
regulation. As Myers and Boyden explain:
The idea of a linear pattern of growth and change raised the possibility that children
whose development does not conform to this pattern are in some way abnormal or at
risk. Because the developmental norm was based on full-time schooling, working
children, even those going to school part time, came to be seen either as deviants or
victims. The idea that the earliest stages of child development mould development in
later stages has given rise to the notion that particularly stressful or traumatic events
of early childhood will disrupt or distort childrens later development, often with
life-long negative effects. Early exposure to hazardous work, for example, is
assumed to result in permanent damage to childrens psychological development.195
In reality, there is a fine line separating work from school in the Philippines. Of the 4 million
children working in the country, at least 2.6 million (65.9%) also attend school.196 In fact,
children understand the situation of combining work with school. In the comprehensive study by
Woodhead, an overwhelming 77% of the children surveyed indicated that a combination of
work and study was the best option for their circumstances. Woodhead explained:
Combining work and school is the overwhelming preference. These young people
recognised the potential benefits of attending school, but they were also aware of the
193

1987 Philippine Constitution, art. XIV, s. 2(2).


Ibid.
195
Myers and Boyden, supra note 11 at 10.
196
2001 Philippine Survey, supra note 7 at 26.
194

192
difficulties, both the direct costs, (fees etc.) indirect costs (loss of income) as well as
the other negative effects of schooling.
Many of these participants did not see them as alternatives. Schooling is desirable,
but work is a necessity. Work provides the income to support basic necessities, for
self and family, and in many cases makes it possible to afford the additional costs of
going to school.197
Some studies even show the causality between school and work. Children work in order to
remain or get back to school or to send their siblings to schools.198 Although primary and
secondary education are free as mandated by the Constitution, there are still direct and indirect
costs of children attending school. These include the cost of uniforms, transportation, food, other
learning materials, and miscellaneous fees, in addition to the opportunity cost of the child being
in school and out of the work place. Forcing children to leave work may cause them more harm
because they lose their source of income that is considered as essential in the family economy.
Besides, removing children from work will not necessarily guarantee that they will return to
school. On the contrary, it may even completely remove them from school or lead them to enter
into more dangerous jobs.
When a working child leaves school, work is instinctively blamed as the cause for such exit.
However, that is not necessarily accurate. In the 2001 Philippine Survey, the two most common
reasons why children dropped out of Philippine schools were: (i) not interested in school
(31.4%) and (ii) cannot afford to go to school (28.3%).199 To engage in employment only comes
in third with 9.9%.200 These findings are reiterated in subsequent studies.201 Instead of blaming
work for children dropping out of school, energies should be directed towards the growing
number of children who are neither working nor studying. Also of significance is the fact that of
all the working children who were also in school, at least 55% reported that they were able to
manage work and school. Of the other 40% who reported problems, the main concern was
difficulty in catching up with the lessons. However, these working children also ranked high on

197

Woodhead, supra note 180 at 76.


Rosemarie Fernandez and Melba Manapol, A Study on Child Labor Situation in Southern Philippines: The
Working Children in International Seaports of Sasa, Davao City and Makar, General Santos City online: Child
Protection
in
the
Philippines:
Philippine
Resource
Network
<http://www.childprotection.org.ph/monthlyfeatures/archives/archive04.html>.
199
2001 Philippine Survey, supra note 7 at 84.
200
Ibid.
201
Woodhead, supra note 180.
198

193
their concerns: the high costs of supplies/books/transportation; the distance of school from their
residence; and even teachers not being supportive. Thus, as Boyden, et al. argue:
Policies of education and work should be built on considerations of firstly what
children need and want to learn in the particular context in which they live and
secondly how children learn most effectively, acknowledging that schooling is not
always educationally more beneficial for children than are some other activities,
including at least some kinds of work. Different environments provide different
opportunities and means for children to learn and children in different environments
acquire distinct competencies. It is becoming increasingly clear that, to meet
childrens multiple capacities and address the multiple developmental goals in
different social and cultural settings, a variety of learning opportunities need to be
provided in a range of learning contexts.202
V. CONCLUDING REFLECTIONS
The confluence of childhood studies and the increasing recognition of children as right holders
has given substance to alternative ways of looking at child work. International agencies such as
UNICEF and nongovernmental organizations such as Save the Children and the End Child
Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes (ECPAT) have
pushed for these emerging perspectives. Even the ILO through the establishment of the
International Programme on the Elimination of Child Labour (IPEC) in 1992 has quickly
integrated advocacy of more direct, pragmatic methods of combating child labor.203 Thus, the
ILO has set its priority as targeting the worst forms of child labor as defined in the Worst Forms
of Child Labour Convention, 1999. With this growing push for a child-centered view of child
work, there is a corresponding demand for a more contextually-sensitive understanding of the
realities of children. In response, policy researches in the Philippines have now begun to look at
working children (such street children, child domestic workers, children in prostitution, etc.) as
active participants in the construction of their realities.204
In the end, the question really is, what does the law make of working children? If these children
have been deprived of their childhood then their real lived experiences become inconsequential.
202

Boyden, et al., supra note 32 at 61.


Cullen, supra note 12 at 94.
204
See e.g. Protacio-De Castro, et al., Integrating Child-Centered Approaches in Childrens Work (Quezon City:
SC-UK Philippines and UP CIDS PST, 2002); Violeta Bautista, et al., Working with Abused Children From the
Lenses of Resilience and Contextualization (Quezon City: UP CIDS PST and Save the Children Sweden, 2001).
203

194
The thrust then of the legal system is simply to save these children. That is what the dominant
paradigm tells us. Limiting ones understanding of children and work to traditional approaches
may mislead one into thinking that there is a straightforward solution to the issue of child
work. Child labor legislation creates the impression that it has found that solution. However, as
this chapter has attempted to show, the issue is far more complex.
Contextualized studies that focus on how working children see their work in particular and their
lives more generally provide us with a broader understanding of the phenomenon of child work.
As Woodhead reminds us, the working child as the target and principal stakeholder has a
well-developed perspective on their situation.205 At the same time, these sociological and
anthropological inquiries provide an avenue for the voices of children to be heard. Consistent
with the participation of children, these voices provide an essential, additional perspective on
these processes, from the childrens point of view.206 And according to the UNCRC, if the right
to participation is to be given significance, these views of children are to be given due weight.
The emerging perspectives help broaden our understanding of the reality of children and work.
This means acknowledging that our definitions and evaluations of children and work are based
on specific interests and assumptions; that child labor laws and policies are informed by
dominant paradigms of children and childhood. Unfortunately, these dominant constructions
detract us from the most important focus of this whole discourse the child who is a real live
human being. The recognition of the participation of children in the discourse of child work
signifies a respect of their rights, realities and relationships. Simply, it is a recognition of who
children are, what they are capable of and the connections that they establish in their lives. This
demand for respect is, in fact, actively pursued by a world movement of working children from
Africa, Asia and Latin America. As declared by these working children:
We want recognition of our problems, our initiatives, proposals and our process of
organisation.
We are against the boycott of products made by children.
We want respect and security for ourselves and the work that we do.
205
206

Martin Woodhead, Combatting Child Labor: Listen to What the Children Say (1999) 6 Childhood 27 at 36.
Ibid at 45.

195
We want an education system whose methodology and content are adapted to our
reality.
We want professional training adapted to our reality and capabilities.
We want access to good health care for working children.
We want to be consulted in all decisions concerning us, at local, national or
international level.
We want the root causes of our situation, primarily poverty, to be addressed and
tackled.
We want more activities in rural areas and decentralisation in decision making, so
that children will no longer be forced to migrate.
We are against exploitation at work but we are for work with dignity with hours
adapted so that we have time for education and leisure.207

207

The Kundapur Declaration. These are the ten points of consensus identified by the working child delegates
during the First International Meeting of Working Children held in Kundapur, India from November 27 to
December 9, 1996.

196
CHAPTER IV
THE CHILD, YOUTH JUSTICE AND THE LAW
Children in conflict with the law (CICL) are called
by many different names: kriminal, magnanakaw,
mamamatay tao (criminal, thief, murderer), rapist.
When people look at them, if they look at all, all they
see are the faces of little criminals, fierce, vicious
and rough. When people speak of them, their voices
are often full of contempt, derision and even
condemnation.
These children are often given names that speak only
of their crimes and not of their humanity. Their
harsh faces are taken to be reflections of their
depraved spirits. Many wish to be rid of such
useless, hopeless creatures with the belief that these
children will continue to lead a life of crime
throughout their lives.
What many do not know, or do not wish to know, is
that the wicked faces we believe these children to
have is just a mask one that children have put on
themselves to hide their pain, anger, and fear, or one
that we, in our ignorance and hate, have put on
them.1
Youth justice policies not only characterize child offenders2 and their activities but also
articulate the values that we hold as a society. It is thus unsurprising that the question of the
appropriate approach to take with respect to youth crime inevitably raises heated, and at times
emotional, debates. When children become entangled with the youth justice system, the issue
becomes the cornerstone of a number of key concerns about a disordered present.3

Arnie C. Trinidad, et al, Behind the Mask: Experiences of Children in Conflict with the Law from Rural and NonMajor Urban Areas (Makati City, Philippines: Plan Philippines, 2006) at 10.
2
In the literature of childhood studies, questions have been raised with the use of the term child offender. See e.g.
Allison James and Adrian James, Constructing Childhood: Theory, Policy and Social Practice (Houndmills,
Basingstoke, Hampshire: Palgrave Macmillan, 2004) at 167-168 who argue that the term child or young offenders
raises the question of what else it might be they offend against other than the criminal law. Our answer would be
that their offense is also against hegemonic adult perceptions of what childhood and children are. Part of these is
how they should behave and in this sense, their offending behaviour is also offensive to adults. In the Philippines,
laws and policies have been moving towards the use of the term children in conflict with the law (CICL).
3
John Muncie, Youth and Crime, 2d ed (London: Sage Publications Ltd, 2004) at 9.

197
Moral4 panic overcomes society with questions such as Are the streets safe? Are schools too
permissive? Are parents failing to exercise proper control? Is television a corrupting influence?
Are courts too soft on young offenders?5 Maruna and King suggest that the youngbecome
a potent symbol for societies that are anxious about social change and the erosion of shared
values and traditions.6 In this sense, Cohen writes:
[Y]oung people have had to carry a peculiar burden of representation; everything
they do, say, think, or feel, is scrutinised by an army of professional commentators
for signs of the times. Over the last century the condition of youth question has
assumed increasing importance as being symptomatic of the health of the nation or
the future of the race, the welfare of the family, or the state of civilisation as-weknow-it.7
Youth justice policy is, in fact, a discourse on what-the-young-offender-represents that
focuses on societal values, most especially social order.8 In such a scheme, the voices of
children are shut out because young offenders are treated merely as legal objects who must
either be saved or controlled. Thus, dealing with child offenders through a youth justice system
has solely focused on two potentially competing objectives as identified by McAra:
(i) [first,] to help troubled young people to change, develop and overcome their
problems to provide a turning point in their lives; [and]
(ii) [second,] to deliver a firm, prompt and appropriate response to youth offending
a response which offers the best means of protecting the public when necessary
(emphasis added).9
These twin objectives are based on the two dominant constructions of childhood that have
shaped the history of laws and policies addressing juvenile delinquency. May calls these
4

See Michael King, Introduction in Michael King, ed, Moral Agendas for Childrens Welfare (London:
Routledge, 1999) at 2 who argues: [A]ll this moralizing about children has to be seen in the context of a social
world where the terms morals and morality are freely and openly tossed around as if everyone knew exactly
what they meant by them. Everyone seems to know what morality is and where to find it.[I]f there are those who
behave badly, causing misery and suffering for others, this can be improved simply by turning individuals into
better people.
5
Muncie, supra note 3.
6
Shadd Maruna and Anna King, Youth, Crime and Punitive Public Opinion: Hopes and Fears for the Next
Generation in Monica Barry and Fergus McNeill, eds, Youth Offending and Youth Justice (London: Jessica
Kingsley Publishers, 2009) at 105.
7
Phil Cohen, The Same Old Generation Game (1997) 28:1 Criminal Justice Matters 8 at 9.
8
This is consistent with the socialization discourse in both the familial and educational contexts discussed in
Chapters I and II respectively of this thesis. As elaborated in those chapters, socialization is viewed exclusively as
the adult concern for the reproduction of social order.
9
Lesley McAra, Models of Youth Justice in David Smith, ed, A New Response to Youth Crime (UK: Willan
Publishing, 2010) at 288.

198
constructions Innocence and Experience10, which in law and policy translate into a choice
between the welfare and justice approaches respectively.11 Although such dual objectives
have been described as an over-simplified understanding of the myriad principles12 shaping
policy discourse, these two perspectives still dominate the conversations on youth justice
systems, pulling them back to this polarizing dichotomy. Because these youth justice models see
a young offender as a child who is either deprived or depraved, the corresponding response is
rescue or control, both of which are external impositions on the child. In both responses,
children are merely treated as the objects of youth justice laws and policies.
The current debates in the Philippines illustrate the influence of these two approaches. Very
recently, incidents of armed car burglary committed by children along one of the busiest streets
in the Philippine capital of Manila triggered debates on how to deal with these children.
There was a barrage of news footage showing a series of armed robberies committed by children
who would forcibly open the doors of taxis caught in traffic, rob the driver and passengers at
gunpoint, and scamper away with the loot.13 Media reports lamented that despite the
brazenness of their acts, these children would be let go without so much as a slap on the
wrist.14
These children grabbed so much media attention that they earned the moniker batang hamog.
Said one newspaper report:
The term batang hamog, as far as I know, is a recent addition to our urban lexicon. It
refers to indigent children who roam the streets of Manila, often begging, sometimes
stealing but often under the influence of glue, more popularly known by the brand
name Rugby, to which many of them have become addicted. Nobody knows for sure
how the term originated, which translates to English as child of dew or child of
mist. Maybe it refers to the vapor that forms on car windows to which these young
vagabonds press their faces to make themselves look more pitiable or perhaps to
get a better view of what valuables can be grabbed from inside the vehicle.15
10

Margaret May, Innocence and Experience: The Evolution of the Concept of Juvenile Delinquency in the MidNineteenth Century in John Muncie, et al, eds, Youth Justice: Critical Readings (London: Sage Publications Ltd.,
2002).
11
See e.g. Roger Smith, Welfare vs. Justice Again! (2005) 5:3 Youth Justice 3.
12
McAra, supra note 9 at 287.
13
Joel
Adriano,
Wasted
Youth
in
the
Philippines,
online:
Asia
Times
<http://www.atimes.com/atimes/Southeast_Asia/MJ15Ae02.html>.
14
Dan Mariano, Pangilinan Law and Batang Hamog, online: The Manila Times
<http://www.manilatimes.net/index.php/opinion/columnist1/7263-pangilinan-law-and-batang-hamog>.
15
Ibid.

199
The media took this opportunity to highlight the resurgence of crimes committed by children.
This media coverage created a sense of panic that has fuelled antagonism against the current
Philippine law on youth crime and invoked calls for harsher laws. The conflict primarily comes
from the fact that the present youth justice law,16 in place since 2006, raised the minimum age of
criminal responsibility to 15. This means that a child 15 years of age or under at the time of the
commission of the offense is exempt from criminal liability.17 In addition to this, a child above
15 but below 18 years of age is also exempt from criminal liability if such child acted without
discernment. Under the previous law,18 the much lower age of nine marked the commencement
of criminal responsibility. As well, the exemption for those who acted without discernment was
only for those above nine and below 15. Thus, under the previous legal regime, children were
caught within the criminal justice system at a much younger age whereas under the current
law, the threshold for criminal responsibility has been pushed higher. The dispute heatedly
focuses on whether or not to lower the age for criminal responsibility.
The current debates in the Philippines ostensibly seem to be concerned only with the question of
the minimum age of criminal responsibility. In reality, however, the current debates reflect a
broader disagreement between proponents of the welfare and justice responses to youth
offending. By arguing for the lowering of the minimum age of criminal responsibility, those
who oppose the current law espouse the broader responsibilization and punishment of children.
This argument is fundamental to the justice model. On the other hand, proponents of the current
law who defend the minimum age of criminal responsibility at 15 continue to argue for a
welfarist approach in dealing with child offenders with the understanding that: Children in

16

Republic Act No. 9344 (2006) An Act Establishing a Comprehensive Juvenile Justice and Welfare System,
Creating The Juvenile Justice and Welfare Council under the Department of Justice, Appropriating Funds Therefor
and for other Purposes [Juvenile Justice and Welfare Act of 2006].
17
The law uses the phrase 15 years of age or under to identify children who are exempt from criminal liability.
This has caused some confusion in identifying the precise age when criminal responsibility begins. The Philippine
Supreme Court later clarifies this in A.M. No. 02-1-18-SC (2009) Revised Rule on Children in Conflict with the
Law, s. 4(a) when it defines the age of criminal responsibility as the age when a child, fifteen (15) years and one
(1) day old or above but below eighteen (18) years of age, commits an offense with discernment (emphasis added).
This means that criminal responsibility begins precisely on the day immediately succeeding the 15th birthday of a
child.
18
Presidential Decree No. 603 (1974) Child and Youth Welfare Code.

200
conflict with the law should not be treated by the state as hardened criminals but as victims of
circumstances beyond their control (emphasis added).19
This chapter argues that despite the fact that the 2006 law introduced a new framework into the
Philippine youth justice system that attempts to move away from a simplistic either-or
dichotomy between the welfare and justice models, the legal system is still caught in the push
and pull of these two dominant models. Significantly, the current Philippine law has introduced
a new framework of participation into the youth justice system that radically repositions the
child within the system. However, because the youth justice system has had a long legal history
of being shaped and influenced by particular understandings of these two dominant approaches,
the current debates reflexively revert to them. Thus, notwithstanding the introduction of a
participatory framework within the Philippine legal system, rooted in new understandings of
children and childhood, the conversations on youth justice policy remain fixed on a choice
between the two dominant paradigms that continue to see young offenders simply as objects of
the youth justice system.
To be sure, the chapter does not discount the significance of setting an appropriate minimum age
of criminal responsibility. In fact, the United Nations Convention on the Rights of the Child
(UNCRC) mandates, among others:
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:
(a) The establishment of a minimum age below which children shall be presumed
not to have the capacity to infringe the penal law.20
The setting of a minimum age of criminal responsibility has even led the Committee on the
Rights of the Child (Committee) to direct states parties to the UNCRC not to set a MACR
[minimum age of criminal responsibility] at a too low level and to increase the existing low

19

Leila B. Salaverria, Jailing Kids No Answer to Rising Criminality, Says DSWD Exec, online: Philippine Daily
Inquirer <http://newsinfo.inquirer.net/198599/jailing-kids-no-answer-to-rising-criminality-says-dswd-exec>.
20
Convention on the Rights of the Child, 1577 UNTS 3 (entered into force 2 September 1990) [UNCRC], art.
40(3)(a).

201
MACR to an internationally acceptable level.21 The Committee urges:
From these recommendations, it can be concluded that a minimum age of criminal
responsibility below the age of 12 years is considered by the Committee not to be
internationally acceptable. States parties are encouraged to increase their lower
MACR to the age of 12 years as the absolute minimum age and to continue to
increase it to a higher age level.22
What the chapter attempts to highlight is that the issue of fixing the minimum age of criminal
responsibility is part of an entire legal and policy framework governing child offending. The
Committee itself underscores that a juvenile justice policy must not be limited to the
implementation of the specific provisions contained in[the] CRC.23 States must develop and
implement a comprehensive juvenile justice policy that takes into account the general principles
of the UNCRC including, among others, the participation of children and their right to be
heard.24 As such, unless there is a careful exploration of the overall framework of youth justice
policy, the system will continue to exclude children by treating them as legal objects and failing
to recognize and provide for their participation.
The chapter argues that underneath the debates on youth justice policy is the equally important
discourse of how society through its legal system constructs children and childhood. As
James and James have put it: the way in which adults respond to the crimes of the
younghelps us to understand how childhood is produced and reproduced.25 Whether the
youth justice policy aims to address the needs of the victim-child or control the behavior of the
responsibilized child offender, the underlying assumption is that child offenders have to be
returned to their childhood and become the child again. The construction of children and
childhood in these dominant approaches are, at best, insufficient to encapsulate the essence of
the diverse lives and experiences of children. Given that these polarizing arguments have
dominated the discourse of youth justice policy, this chapter attempts to reframe the discussion
by moving away from that simplistic either-or choice between the welfare and justice models

21

United Nations Committee on the Rights of the Child, General Comment No. 10 (2007) Childrens Rights in
Juvenile Justice, CRC/C/GC/10, 44th Sess (2007) at 11, par. 32.
22
Ibid.
23
Ibid, par. 4 at 3.
24
Ibid.
25
James and James, supra note 2 at 168.

202
and to explore the framework of participation that has already been introduced into Philippine
law, at least on paper, and which has been obscured in recent debates.
The chapter demonstrates the limitations of a discourse solely focused on the dominant
understandings of the welfare and justice approaches that has obscured the remarkable
achievement of the current law. The chapter proposes an understanding of the 2006 Philippine
law on youth justice policy as based not solely on the welfare model, as its current detractors
would portray it, but as a complex merger and harmonization of the principles of welfare and
justice combined with a fundamental recognition of and respect for the participation of children
within the system. Moving away from the dominant understandings of the welfare and justice
approaches allows for a broader understanding of the diverse realities of children and at the
same time shows greater respect for their rights and the system of relationships within which
those rights are exercised. The chapter argues that through the utilization of the principles and
mechanisms of individualized intervention programs, contextualized diversion and communitybased rehabilitation and reintegration within an overall a framework of restorative justice, the
law advances the participation of children in a way that recognizes and respects their rights,
realities and relationships.
The chapter begins in Section I by looking at the two dominant models of youth justice policy
that reflect the dominant constructions of children and childhood. Viewing child offenders as
purely victims is built around romantic notions of innocence and dependence. This justifies
the welfarist objective of saving the child offender. On the other hand, the construction of child
offenders as a threat to society elicits the image of a depraved and uncontrollable other who
needs to be punished and taught a lesson, the response of the justice approach. These models
translate the responses to child offending into either rescuing children by providing for their
needs or responsibilizing and punishing them for their deeds.
The chapter then moves on to Section II which examines an emerging paradigm informed by a
broader understanding of what it means to be a child and the experience of childhood. The
opening up of the discourse of children and childhood through this emerging paradigm supports
the participation of children within youth justice laws and policies. Recognition of the
participation of children leads to a richer understanding of the circumstances of children, which

203
in turn allows them to take responsibility for their actions. The system of youth justice then is
not necessarily directed at the rescue of the innocent child. Neither is it necessarily directed at
attribution of individual responsibility for the delinquent child. These new understandings
demonstrate a harmonization of the welfare and justice approaches and a re-imagining of their
fundamental values within the context of childrens participation. As such, youth justice is not
confined to a universalized response of rescue or control but in fact, is cognizant of the
importance of individualized responses that are both appropriate and proportionate to the childs
circumstances and offense.
In Section III, the chapter traces the evolution of youth justice policy in the Philippines
beginning in the nineteenth century. It looks at how laws and policies, up until the 1990s,
essentially maintained a rhetoric of welfare which portrays children as victims of circumstances
who must be rescued. Within this predominantly welfarist articulation, however, there was still
the presence of a justice approach that attributed responsibility through the finding of fault and
the imposition of punishment on certain children, particularly repeat offenders and those
committing serious crimes. The portrayal of child offenders as either victims or dangerous
delinquents elicited straightforward responses leading to the dichotomization of the welfare and
justice approaches with the understanding that the youth justice system was simply a choice
between rescue and punishment. Despite this dichotomy between the welfare and justice models
at the level of rhetoric, there was nevertheless a conflation of understandings in practice. Thus,
despite the overt rhetoric of welfare, in practice the implementation of youth justice laws and
policies took on a patently punitive justice-oriented approach. This dichotomy between welfare
and justice at the level of rhetoric and their conflation in practice led to a polarized and
inconsistent system of youth justice.
Section III then goes on to demonstrate how, more recently, the system of youth justice has been
reformulated to reflect a new, emerging paradigm of children and childhood. Attempting to
address both the rhetoric and the reality of the youth justice system, these reforms culminated in
the enactment of the current law, the Juvenile Justice and Welfare Act of 2006. In the 2006 law
one finds not only a harmonization of the principles of both approaches to youth justice policy
but also and more importantly a reformulation of those values within the context of
childrens participation. However, as will also be shown in the last part of this section, despite

204
the introduction of a new, and very different, set of understandings of the youth justice system in
the current law, this very positive development has been overshadowed by the current debates
about the 2006 law that are still structured around the dominant understandings and the polarity
between the welfare and justice traditions. This has reinforced the notion that youth justice
policy is indeed restricted to a choice between whether it should rescue children or attribute
responsibility and punishment to offenders.
In Section IV, the chapter examines in detail the current law on youth justice in the Philippines,
the Juvenile Justice and Welfare Act of 2006. It begins with an analysis of the limitations of the
debates focusing on the dominant understandings of welfare and justice that merely see children
as the targets of the youth justice system. The section then shows how the current law has, in
fact, addressed these issues through the introduction of a participative framework. The section
focuses on this alternative framework that recognizes and respects the participation of children
within the youth justice system. The participatory framework introduced by the law is translated
into the principles and mechanisms of individualized intervention programs, contextualized
diversion and community-based rehabilitation and reintegration, all in accord with the rights,
realities and relationships of the child offender. Thus, instead of unbridled impositions on
children characterized as either curative or punitive, the law espouses a system that engages in a
process of rebuilding and reconnecting.
The chapter concludes in Section V by looking at the potential of the participative framework
introduced by the current law. By allowing the youth justice system to recognize and respect the
rights, realities and relationships of children, the law makes a judicious attempt to transform
how we understand and respond to children, their needs and their deeds. However, there is a
difficult task ahead for the law especially with the full understanding and implementation of the
transformative framework that it introduces. The final section acknowledges that changing the
discourse in the law requires a corresponding implementation throughout the system and on the
ground. As Glendon reminds us of this critical interaction between rhetoric and reality: But just
as we must guard against having exaggerated expectations of what law can accomplish on its

205
own, we must also take care not to fall into the opposite error of unduly minimizing its potential
to influence social trends.26
I. DOMINANT MODELS OF YOUTH JUSTICE POLICY:
REFLECTING THE DOMINANT CONSTRUCTIONS OF CHILDREN AND CHILDHOOD
The manner of intervention embodied in the models of youth justice policy is based on a
particular construction of children and childhood.27 Discussions of youth justice policy center on
two dominant models that demonstrate how child offenders have been viewed either as victims
or threats. These models translate the responses to child offending into either rescue for the
child in need or punishment for the young criminal.28 They find their justification in
constructing young offenders either as innocent vulnerable children who have to be saved in
their childhood or crafty and mischievous young adults who have to be punished and controlled.
Consequently, as Muncie and Hughes lament, government debates circulate around how to
responsibilize, how to mange, how to control, rather than challenging established discourses
about youth and childhood.29 It is important to make clear, at the beginning, that both welfare
and justice are complex concepts and that the focus here is on the totalizing and restrictive
ways in which these concepts have been applied in the youth justice context. As will be shown
below, the emerging paradigm does not completely reject these concepts, but rather combines
and reformulates them into a framework that respects the rights and participation of children.
A. WELFARE AND THE ETHIC OF CARE:
SAVING THE INNOCENT CHILD
The first of the two dominant models of youth justice policy places primary emphasis on
addressing the needs of young offenders instead of considering the wrongfulness of the offense.

26

Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and
Western Europe (Chicago: University of Chicago Press, 1989) at 311.
27
See Barry Goldson and John Muncie, Critical Anatomy: Towards A Principled Youth Justice in Barry Goldson
and John Muncie, eds, Youth Crime and Justice: Critical Issues (London: Sage Publications Ltd, 2006) at 214.
28
See e.g. Alberto Muyot, An Overview of the Legal Regime for Child Protection in the Philippines (2004) 30:1
Journal of the Integrated Bar of the Philippines 1.
29
John Muncie and Gordon Hughes, Political Rationalities, Criminalization and Resistance in John Muncie, et al,
eds, Youth Justice: Critical Readings (London: Sage Publications Ltd., 2002) at 15.

206
Ensuring the welfare of children is a key formal principle30 underlying work with young
offenders. Within the tradition of the welfare approach, the criminal behavior of the child is
understood to be merely a manifestation of underlying problems. Thus, Smith writes: [young
offenders] actions are largely determined by adverse circumstances.31 In this welfare model,
the objective is to improve the lives of children by protecting them in their childhood and
promoting their development into productive adults.32 Mallonga explains:
The focus of judicial intervention is shifted from the offense to the offender.
Supposedly, it is not the offense, committed in the past or prior to any pending State
action that determines the content and intensity of the intervention, but the welfare
of the offender, as a future aim. Whereas penal justice, which the Court must
dispense, is deemed retrospective in the sense that the offender shall be accountable
for a previous deed. Yet juvenile justice is prospective in that the child offender
must be treated or rehabilitated for reformation or restoration purposes, making the
child a constructive member of society.33
Given this agenda of the welfare model, youth justice policy is seen as a means of keeping the
innocence of children in their childhood. Jenks traces this perspective of seeing childhood as a
protected phase of development:
An archaeology of the ideas which give rise to the modern child reveals a strong
and continuous commitment to conceptions of childhood innocence. First,
emanating from Rousseau, children are awarded a purity, by virtue of their special
nature. Emerging from the Enlightenment, they are the Ideal immanence, and the
messengers of Reason. It is the experience of society which corrupts them. Left to its
own devices the child would by nature, it was supposed, be guiltless. A second
engagement with childhood innocence stems from Locke: children are thought to be
innocent, not innately, but, like halfwits, as a consequence of their lack of social
experience. Through time, the unknowing, unworldly child may become corrupted
by society.
Notwithstanding differences in accounts of childhoods state of being, nor yet of the
purpose and intent of its usage over time, the theme of innocence has remained
closely tied to the child.34

30

Muncie, supra note 3 at 250.


Roger Smith, Childhood, Agency and Youth Justice (2009) 23:4 Children and Society 252 at 256.
32
In the Philippines, this model has been significantly influenced and shaped by the child-saving movement of the
United States. Thus, the Child and Youth Welfare Code, supra note 18, arts. 1 and 3(3) mandate that every effort
must be exerted to promote the welfare of the child to the end that he may become a happy, useful and active
member of society.
33
Eric Mallonga, In the Childs Best Interest: Reorienting Juvenile Justice (2004) 30:1 Journal of the Integrated
Bar of the Philippines 28 at 29.
34
Chris Jenks, Childhood (London: Routledge, 1996) at 123-124.
31

207
Because welfarist policies are formed around the romantic rhetoric of innocence, vulnerability
and dependency of childhood, children are subjected to over-sentimentalization. Wall puts it
succinctly: putting a subset of humanity up on a pure and ethereal pedestal is another way to
dehumanize and exclude them.35 Equally important, in this discourse, parental responsibility is
critical. Parents have the responsibility of providing moral guidance and discipline to their
children and of supervising their activities. Consequently, child offending is seen as a
manifestation of parental failure,36 which also sets into motion the state responsibility of parens
patriae in caring for and supervising these victim-children. Mallonga explains the duty of the
state towards children:
Court intervention [is] justified by the theory that a childs natural protectors the
parents [are] unable or unwilling to provide the appropriate care. The Court [takes]
the place of the parents, and hence, the beginning of parens patriae and its eventual
evolution.
Under such doctrine, the courts would adopt a paternalistic attitude and consider the
child as a distinct individual entitled to treatment and rehabilitation rather than
prioritise the victims retribution (emphasis added).37
This duty of the state validates the position of James and James that youth justice policies also
represent the drive to reassert not only parental responsibility but also adult authority over
children in the face of the challenge of youth crime.38 Scott further elucidates:
Reinforcing this image of youthfulness [is] the metaphor of the state as the kind
parent concerned only with the welfare of children.
[D]elinquent youths and children who [are] neglected by their parents [are] not very
different from each other. All of the children who [come] within the jurisdiction of
the court [are] innocent victims of inadequate parental care, and the states role in
both delinquency and neglect cases [is] to intervene in the spirit of a wise parent
toward an erring child. Indeed, parental neglect [is] understood to be the primary
cause of delinquency. The political objective [is] to promote an image of young
offenders as children whose parents[fail] them, rather than as criminals who
[threaten] the community.39

35

John Wall, Human Rights in Light of Childhood (2008) 16 Intl J of Childrens Rts 523 at 526.
In fact, in the Philippines, the Child and Youth Welfare Code, supra note 18, art. 61 provides:
Whenever a child is found delinquent by any court, the father, mother or guardian may be judicially
admonished.
37
Mallonga, supra note 33 at 28-29.
38
James and James, supra note 2 at 171.
39
Elizabeth Scott, The Legal Construction of Adolescence (2000) 29 Hofstra L Rev 547 at 581.
36

208
In the end, the construction of children in the welfare approach as innocents and dependents
legitimizes the dominant and problematic notion that child offenders are no more than
victims who need to be saved. With such a view, the voices of children are shut out and they are
treated merely as the passive targets of laws and policies. Because they have been deprived of
their childhood, youth justice policies return these children to a proper life of growth and
carefree play where vulnerability and dependency are objective markers of childhood. This also
justifies the regulation of child offending using the same ideological basis as the welfare system:
that the youth justice system is intended to help the clients, not to punish them.40
B. JUSTICE AND RESPONSIBILIZATION:
CONTROLLING THE DANGEROUS CHILD
The second dominant model of youth justice policy is the justice approach, which is primarily
concerned with managing the behavior of young offenders. Fundamental in this approach is the
attribution of responsibility to child offenders for the crimes that they commit. There are two
important aspects to this responsibilization of child offenders: first, is the overarching emphasis
on punishment; and second, is an underlying reliance on a strict judicial process.
1. Responsibility and the Imposition of Punishment
Fundamentally, a justice approach in youth justice policy is concerned with behavior, i.e., the
specific act that initiates the child into the justice system, rather than the circumstances of the
child offender. As such, personal qualities and attributes areseen to be represented by what
[child offenders] do, rather than by any underlying factors.41 Since the response in this model is
offense-based, children can, therefore, be legitimately punished for what they have done.42
Disregarding the circumstances of the child offender, the justice model sees offending as an
individualised activity, for which the young people concerned must accept exclusive
responsibility.43
40

Joel Handler and Margaret Rosenheim, Privacy in Welfare: Public Assistance and Juvenile Justice (1966) 31
Law & Contemp Probs 377 at 394.
41
Smith, supra note 31.
42
Stewart Asquith, Justice, Retribution and Children in Allison Morris and Henri Giller, eds, Providing Criminal
Justice for Children (London: Edward Arnold Publishers, Ltd., 1983) at 8.
43
Smith, supra note 31 at 253.

209

The basic assumption of the justice model is that delinquency is a matter of opportunity and
choicethe actis a manifestation of the rational decision to that effect.44 This argument finds
its basis in the fundamental principle of responsibility in that when a child commits an act, that
child must face the consequences. Because offending is seen as a product of rational choice,45
child offenders understand their actions and must take responsibility for their behavior.46
Consequently, the behavior need not be understood but simply controlled. Von Hirsch, a leading
proponent of the justice model in the U.S. explains:
Punishing someone conveys in dramatic fashion that his conduct was wrong and that
he is blameworthy for having committed it.47
The offender may justly be subjected to certain deprivations because he deserves it;
and he deserves it because he has engaged in wrongful conduct conduct that does
or threatens injury and that is prohibited by law. The penalty is thus not just a means
of crime prevention but a merited response to the actors deed, rectifying the
balanceand expressing moral reprobation of the actor for the wrong.48
Underneath this approach of responsibility and punishment to youth justice policy is a
fundamental idea of [d]emons hav[ing] invaded the innocents49 where children are the
dangerous other.50 Jenks graphically describes this demonized child:
Children, it is supposed, enter the world as a willful material force, they are impish
and harbour a potential evil. This primal force will be mobilized if, in any part, the
adult world should allow them to stray away from the appropriate path that the
blueprint of human culture has provided for them. Such children must not fall into
bad company, establish bad habits, or develop idle hands all of these contexts will
44

Muncie, supra note 3 at 265.


McAra, supra note 9.
46
For example, in a proposed bill in Philippine Congress, when a child aged 12-15 is accused of murder, parricide,
infanticide, homicide, kidnapping and serious illegal detention, rape, robbery, destructive arson, carnapping, drug
trafficking or other offenses punishable by more than twelve 12 years, there is an automatic presumption that the
child acted with discernment. House Bill No. 6052 introduced by Representatives Salvador H. Escudero III,
Cinchona Cruz-Gonzales, Mel Senen S. Sarmiento, Jerry P. Treas, Mary Mitzi L. Cajayon, Roberto V. Puno,
Pablo P. Garcia, Rex Gatchalian, Karlo Alexei B. Nograles, Erico B. Aumentado, Anthony Rolando T. Golez, Jr.
Romeo M. Acop, Pedro P. Romualdo, Rene L. Relampagos, Rufus B. Rodriguez, Cesar V. Sarmiento, Jeci A.
Lapus, Carlo V. Lopez, Mercedes K. Alvarez, Maria Zenaida B. Angping, Susan A. Yap, Arnel M. Cerafica and
Marlyn L. Primicias-Agabas, An Act Strengthening the Juvenile Justice System in the Philippines, Amending for the
Purpose Republic Act No. 9344, Otherwise Known as the Juvenile Justice And Welfare Act Of 2006.
47
Andrew von Hirsch, Doing Justice: The Choice of Punishments (New York: Northeastern University Press,
1986) at 48.
48
Ibid at 51.
49
Muncie, supra note 3 at 7.
50
Ibid.
45

210
enable outlets for the demonic force within, which is, of course, potentially
destructive not just of the child but also of the adult collectivity.51
With the demonization of children, childhood is constructed as a period of natural barbarism,
tyranny, and fickleness of human nature [that it] needs to be elevated toward civilization and
justice.52 Children now represent the perceived threat to social stability posed by unregulated,
undisciplined and disorderly youth outside adult control.53 This view of children rationalizes
the perception that children exceed limits on a constant basis. Jenks explains:
The idea that the child might be inherently evil stems from an earlier historical
period but is not without trace elements in contemporary moralizing, criminology
and debate over pedagogic practice. This image rests upon the assumption of an
initial evil, corruption, baseness, disruption and incompetence as being primary
elements in the constitution of the child. Childhood, then, is found in the exercise of
restraint upon these dispositions or more intrusively, in the exorcism of these
dispositions by programmes of discipline and punishment.54
Such a construction of children creates the impression that child offending can be understood in
a simplistic dichotomy between good and evil or innocent and depraved.55 Jenks explains that
such an image of wilful and unconstrained potentialhas always provided the dark side or
inarticulate backdrop to our contemporary and dominant images of innocence.56 This child-asa-threat construction rests not only on a mistrust of children in general, but also on a fear of a
failing justice system that has become too soft on crime. Brown explains:
Delinquents [are] no longer social casualties. They [are] deliberate lawbreakers who
must be held responsible for their actions in other words, they [are] young
criminals. Insofar as offending [has] a cause, its roots lay in a decline in discipline
and a growth in permissiveness in families and schools. This [produces] a lack of
respect for adults, authority and the law. Crime could only be controlled if it [is]
punished more severely by tougher custodial and non-custodial sentences. The
police [need] to be strengthened and the courts given increased powers.57

51

Jenks, supra note 34 at 71.


Wall, supra note 35 at 524.
53
Sheila Brown, Understanding Youth and Crime: Listening to Youth? (Buckingham: Open University Press, 1998)
at 77.
54
Chris Jenks, Childhood and Transgression in Jens Qvortrup, ed, Studies in Modern Childhood: Society,
Agency, Culture (Houndmills, Basingstoke, Hampshire: Palgrave Macmillan, 2005) at 122-123.
55
See King, supra note 4.
56
Jenks, supra note 34 at 126.
57
Brown, supra note 53 at 64.
52

211
In the end, Scott finds that advocates for tougher juvenile crime policies reject virtually every
aspect of the Progressive image of young offenders as immature children because:
[T]he romanticized accounts of youngsters getting into scrapes with the law have
no relevance in a world in which savvy young offenders commit serious crimes.
These reformers apparently assume that there are no psychological differences
between adolescent and adult offenders that are important to criminal responsibility.
Juvenile offenders are criminals who happen to be young, not children who happen
to commit crimes (citations omitted).58
2. Responsibility and a Determinate System of Justice
There is another aspect of the justice model: the insistence on a formal system of justice that
protects children in conflict with the law from the intrusive discretionary power of the state.
This component of the justice model remains linked to the basic principle of responsibility that
underpins the justice approach. The attribution of responsibility to child offenders, with its
corresponding imposition of punishment, is justified by a court system that protects against the
insidious welfarist agenda of the state. Within this system, responsibility and punishment are
portrayed as rational, consistent and determinate.59
While a welfarist approach looks at the needs of the offender to determine not only whether
intervention is necessary but also the appropriate type of intervention, the justice model insists
on proof of commission of an offense [as] the sole justification for intervention and the sole
basis of punishment.60 Asquith highlights the problem of the unaccountable and indeterminate
discretion of the state operating under the welfarist model:
[W]elfarism is based on philosophically unsound principles insomuch as it is not
possible to identify criteria which can either be employed to explain delinquent
behavior or to inform the measures to which children are subjected in their best
interests. In short, if we do not really know what we are doing with children we
should not pretend to be employing the rhetoric of therapy when what is being
exercised is a very subtle form of social control.61

58

Scott, supra note 39 at 583-584.


Phil Scraton and Deena Haydon, Challenging the Criminalization of Children and Young People: Securing a
Rights-Based Agenda in John Muncie, et al., eds, Youth Justice: Critical Readings (London: Sage Publications
Ltd., 2002) at 311.
60
Muncie, supra note 3 at 265.
61
Asquith, supra note 42.
59

212
In contrast, the justice model situates the requirement of proof of commission of a crime
within a determinate system of justice where discretion is removed from unaccountable welfare
professionals who have dictated the types of intervention to be received by children offenders.
Accordingly, the determinate court system espoused by the justice model is looked to as a
counterpoint to the expansive intrusion of the welfare model into the lives of children. Scraton
and Haydon write that the justice model allows responsibility and punishment to fit the crime
while protecting the child against disproportionate or arbitrary punitive measures masked as
treatment.62 Significantly, within the dominant framework of youth justice that offers only a
dichotomized choice between welfare and justice, rights are exclusively associated with the
justice model. Those seeking to protect the rights of child offenders from arbitrary treatment and
control are required to turn to the justice model, where rights are secondary to a system focused
on responsibility and punishment. As Asquith writes: only in a system in which children are
punished for what they have done can their rights best be protected.63
II. EMERGING PARADIGM:
LOCATING THE CHILD WITHIN YOUTH JUSTICE POLICY
One of the main themes of this thesis, building on the seminal work of Prout and James, is that
childhood is a social construction: childhood, as distinct from biological immaturity, is neither
a natural nor universal feature of human groups but appears as a specific structural and cultural
component of many societies.64 The dominant models of youth justice policy, carrying with
them their particular images of children and childhood, illustrate this process of social
construction. As adverted to earlier, James and James write: the way in which adults respond to
the crimes of the younghelps us to understand how childhood is produced and reproduced.65
With the recognition that childhood is a social construction, there is the possibility of
broadening the understanding of what it means to be a child and of what informs the experience
of childhood. James and James eloquently maintain:
62

Scraton and Haydon, supra note 59.


Asquith, supra note 42.
64
Alan Prout and Allison James, A New Paradigm for the Sociology of Childhood? Provenance, Promise and
Problems in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary
Issues in the Sociological Study of Childhood, 2d ed (London: The Falmer Press, 1997) at 8.
65
James and James, supra note 2.
63

213
[C]hildhood varies with regard to the ways in which concepts of child-specific
needs and competencies are articulated and made evident in law and social
policy, as well as in the more mundane and everyday social interactions that take
place between adults and children. Here, then, is the social construction of
childhood, depicted as the complex interweaving of social structures, political and
economic institutions, beliefs, cultural mores, laws, policies and the everyday
actions of both adults and children, in the home and on the street.66
The opening up of the discourse of children and childhood to encompass the diversity of
childhood experiences exposes the restrictiveness of a youth justice policy based solely on a
choice between welfare and justice. By reducing the realities of children to a universalized
conception and restrictive duality of either innocent victims or cunning delinquents, the two
dominant approaches simply treat child offenders as the passive targets of adult rescue and
control. Children then remain silent and only become visible as they relate to the adult-centric
agenda.67 Goldson and Muncie capture the totalizing and limiting construction of children in the
dominant approaches: when the constructionist gaze shifts from the child as victim to the
child as threat, inclusionary welfarism is starkly displaced by exclusionary punitivism.68 This
means that within the dominant models, children fit into either a victim or villain mold that
evokes straightforward institutional infrastructures. Smith aptly argues that reducing youth
justice policy to no more than polarized exchanges between proponents of justice or welfare
solutions to the problems represented by young offenders69 portrays young people and their
actions to the level of caricature.70
The emerging paradigm opens up the understanding of childhood to the various realities and
experiences of children. As such, there is neither an exclusive representation of who child
offenders are nor a universal prescription of what they need contrary to what the dominant
models would suggest. Consequently, youth justice policy represents more than a mutually
exclusive choice between these dominant models. As Muncie and Hughes remind us:

66

Ibid at 13.
See e.g. Ann Oakley, Women and Children First and Last: Parallels and Differences Between Childrens and
Womens Studies in Berry Mayall, ed, Childrens Childhoods: Observed and Experienced (London: The Falmer
Press, 1994).
68
Goldson and Muncie, supra note 27.
69
Smith, supra note 31 at 252.
70
Ibid.
67

214
The history of youth justice is a history of conflict, contradictions, ambiguity and
compromise. Conflict is inevitable in a system that has traditionally pursued the twin
goals of welfare and justice. Welfarism promises a focus on meeting needs and
rehabilitation but has always been compromised by an enduring neo-conservative
framework of moral culpability and punishment. Justice implies a commitment to
individual rights and due process but has readily been translated into neo-liberal
responsibilization and neo-conservative retributive strategies. A narrow justice v.
welfare debate is thus particularly moribund, for neither model has ever been fully
realized in practice. Rather, youth justice tends to act on an amalgam of rationales,
oscillating around and beyond the caring ethos of social sciences and the neo-liberal
legalistic ethos of responsibility and punishment. As a result it continually seeks the
compromise between youth as a special deserving case and youth as fully
responsible for their own actions.71
Within this opening up of the discourse of children and childhood, the emerging paradigm offers
the opportunity to recognize the participation of children within youth justice laws and policies.
With such an acknowledgment, there is a richer understanding of the circumstances of children,
which in turn allows them to take responsibility for their actions. Youth justice laws and policies
then become more relevant and meaningful to the lives and experiences of the children
themselves. These understandings challenge the conventional construction of children as either
purely innocent and vulnerable or cunning and dangerous upon which the traditional models of
youth justice policy have based their strategies. Instead, the emerging paradigm recognizes the
diverse realities of children and their capacity to process, make meaning and express those
experiences. Thus, youth justice policies are with children, not just about them.
An important influence on the emerging paradigm is the international movement recognizing
children as rights-bearers. This has changed the position of children from passive recipients of
adult care and protection to active rights holders who participate in the construction and
determination of their own lives, the lives of those around them and of the societies in which
they live.72 Thus, Foley et al explain that the childrens right movement has moved beyond a
traditional concern with the protection of children.73 This movement has culminated with the
UNCRC which requires that systems of youth justice accord a fundamental recognition of the
personhood of every child. The UNCRC asserts that a core value of the youth justice system is
71

Muncie and Hughes, supra note 29 at 1.


Prout and James, supra note 64.
73
Pam Foley et al, Contradictory and Convergent Trends in Law and Policy Affecting Children in England in
Christine Hallett & Alan Prout, eds, Hearing the Voices of Children: Social Policy for a New Century (London:
RoutledgeFalmer, 2003) at 108.
72

215
the promotion of the childs sense of dignity and worth.74 Within this understanding, the
UNCRC redefines protection and responsibility focusing clearly on their interdependency in the
youth justice system. This is tellingly illustrated by article 40(1) which links promotion of the
childs sense of worth and dignity with respect for the rights of others and the childs
assumption of a constructive role in society:
States Parties recognize the right of every child alleged as, accused of, or
recognized as having infringed the penal law to be treated in a manner consistent
with the promotion of the childs sense of dignity and worth, which reinforces the
childs respect for the human rights and fundamental freedoms of others and which
takes into account the childs age and the desirability of promoting the childs
reintegration and the childs assuming a constructive role in society.75
In advancing the emerging paradigm, the UNCRC insists on the recognition and respect of
children as children. A key principle is the development of a system of youth justice specifically
applicable to children, which is seen as including the establishment of a minimum age of
criminal responsibility and the use, whenever appropriate and desirable, of measures in dealing
with young offenders that do not involve resorting to judicial proceedings.76 Thus there is a
significant protective element and a recognition that the harsh adult justice system will often not
serve the best interests of children. Within such recognition, however, the UNCRC does not
understand childhood as being incomplete, deficient or a less preferred state. Rather, it
appreciates the value of childhood, highlighting the evolving capacities of children. As such,
youth justice is not necessarily confined to a universalized response of rescue or control; instead
the UNCRC framework acknowledges the importance of individual responses that are both
appropriate and proportionate to the childs circumstances and offense. Such individualized
responses, in turn, demonstrate the recognition of the diverse realities and experiences of
children who are caught within the system of youth justice. In particular, the UNCRC provides:
A variety of dispositions, such as care, guidance and supervision orders;
74

UNCRC, supra note 20, art. 40(1).


Ibid.
76
Ibid, art. 40(3) provides:
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:
(a) The establishment of a minimum age below which children shall be presumed not to have the
capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for dealing with such children without resorting
to judicial proceedings, providing that human rights and legal safeguards are fully respected.
75

216
counselling; probation; foster care; education and vocational training programmes
and other alternatives to institutional care shall be available to ensure that children
are dealt with in a manner appropriate to their well-being and proportionate both to
their circumstances and the offence.77
That children are not mere passive recipients of adult protective care but more importantly,
active rights-bearers is further recognized by the UNCRC as it particularizes the rights of the
child offender, both substantive and procedural. Transcending the dichotomized models found in
the dominant discourse, the UNCRC treats the recognition and protection of the rights of
children as a fundamental element of any youth justice system, not simply as an adjunct to a
system focused on punishment. For example, the UNCRC mandates states parties to ensure that
every child shall have the following basic rights when brought within the system of youth
justice:
(a) No child shall be alleged as, be accused of, or recognized as having infringed the
penal law by reason of acts or omissions that were not prohibited by national or
international law at the time they were committed;
(b) Every child alleged as or accused of having infringed the penal law has at least
the following guarantees:
(i) To be presumed innocent until proven guilty according to law;
(ii) To be informed promptly and directly of the charges against him or her,
and, if appropriate, through his or her parents or legal guardians, and to have
legal or other appropriate assistance in the preparation and presentation of his
or her defence;
(iii) To have the matter determined without delay by a competent, independent
and impartial authority or judicial body in a fair hearing according to law, in
the presence of legal or other appropriate assistance and, unless it is considered
not to be in the best interest of the child, in particular, taking into account his
or her age or situation, his or her parents or legal guardians;
(iv) Not to be compelled to give testimony or to confess guilt; to examine or
have examined adverse witnesses and to obtain the participation and
examination of witnesses on his or her behalf under conditions of equality;
(v) If considered to have infringed the penal law, to have this decision and any
measures imposed in consequence thereof reviewed by a higher competent,
independent and impartial authority or judicial body according to law;
(vi) To have the free assistance of an interpreter if the child cannot understand
or speak the language used;
(vii) To have his or her privacy fully respected at all stages of the
proceedings.78

77
78

Ibid, art. 40(4).


Ibid, art. 40(2).

217
Equally significant is the incorporation in the UNCRC framework for youth justice of the
fundamental value of the participation of children embodied in the all-important article 12 of the
Convention:
1. States Parties shall assure to the child who is capable of forming his or her own
views the right to express those views freely in all matters affecting the child, the
views of the child being given due weight in accordance with the age and maturity of
the child.
2. For this purpose, the child shall in particular be provided the opportunity to be
heard in any judicial and administrative proceedings affecting the child, either
directly, or through a representative or an appropriate body, in a manner consistent
with the procedural rules of national law (emphasis added).79
Aside from the UNCRC, other international rules and guidelines relating to child offenders
demonstrate the movement towards the recognition of the participation of children within the
youth justice system. These include the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (The Beijing Rules),80 the United Nations Guidelines for the
Prevention of Juvenile Delinquency (The Riyadh Guidelines)81 and the United Nations Rules for
the Protection of Juveniles Deprived of their Liberty.82 These international documents insist on
opportunities for the participation of children within youth justice policy and, in fact, push for
the actual recognition of the participation of child offenders within the system. The statement in
the Riyadh Guidelines embodies this mandate:
For the purposes of the interpretation of the present Guidelines, a child-centred
orientation should be pursued. Young persons should have an active role and
partnership within society and should not be considered as mere objects of
socialization or control.83
III. THE YOUTH JUSTICE SYSTEM IN THE PHILIPPINES:
WELFARE AND JUSTICE IN RHETORIC AND REALITY

79

Ibid, art. 12.


United Nations General Assembly, United Nations Standard Minimum Rules for the Administration of Juvenile
Justice (The Beijing Rules), A/RES/40/33, 96th plenary meeting (1985).
81
United Nations General Assembly, United Nations Guidelines for the Prevention of Juvenile Delinquency (The
Riyadh Guidelines), A/RES/45/112, 68th plenary meeting (1990).
82
United Nations General Assembly, United Nations Rules for the Protection of Juveniles Deprived of their
Liberty, A/RES/45/113, 68th plenary meeting (1990).
83
The Riyadh Guidelines, supra note 81, guideline 3 under Fundamental Principles.
80

218
This section now traces the history of youth justice policy in the Philippines from the nineteenth
century. It shows how laws and policies in the Philippines until the 1990s primarily drew upon a
rhetoric of welfare in dealing with child offenders. This welfarist orientation was demonstrated
by features such as: the setting of a minimum age of criminal responsibility; the development of
a rebuttable presumption that children of certain ages acted without discernment; suspension of
sentence; and committal of child offenders to institutions other than jails. The rationalizations
used by these laws and policies were essentially to save the juvenile offender who was
constructed as a victim of circumstances. Within this predominantly welfarist articulation,
however, there were also expressions of the justice approach with provisions that aimed to
responsibilize dangerous delinquents through a finding of fault and imposition of punishment.
For example, the welfarist provisions of certain laws and policies were inapplicable to repeat
offenders and to those who committed serious crimes. Thus, there was a distinction created for
child offenders who did not deserve to be rescued or were beyond rescue and instead dealt with
punitively. The portrayal of child offenders as either innocent victims or dangerous delinquents
elicited straightforward responses leading to the dichotomization of the welfare and justice
approaches with the understanding that the youth justice system was simply a choice between
rescue and punishment.
However, despite this dichotomy between the welfare and justice models at the level of rhetoric,
there was, nevertheless, a conflation of understandings at the level of practice where actors on
the ground often adopted a harsh justice approach to implement welfarist youth justice laws and
policies. Thus, despite the overt rhetoric of welfare, application in practice of these youth justice
laws and policies took on a patently punitive justice approach. Children caught within a
supposedly welfare-oriented youth justice system routinely experienced punishment, suffered
incarceration and lived through the stigma of criminality all because such responses taught
them a lesson not to engage in criminal activities, instilled discipline in them and were what
they deserved.84 Ironically, by expanding the reach of the youth justice system through rescue
objectives, a wider range of children were dealt with more punitively with their activities
criminalized, as seen for example in the violent rounding up of street children in the guise of
rescuing them. The combination of a rigid dichotomy between the welfare and justice models at

84

Trinidad, et al, supra note 1 at 23.

219
the level of rhetoric and their conflation in practice led to a polarized and inconsistent system of
youth justice.
Recognizing this division and incongruence between the welfare and justice models, the law
began, at the end of the twentieth century, to reformulate its approach to youth justice by
moving towards a more complex and nuanced system that blends elements of both models
within an overall framework reflective of the diversity of childrens lives and their participation.
The current law, the Juvenile Justice and Welfare Act of 2006, is the culmination of this
development in which the principles of both the welfare and justice models are harmonized and
their fundamental values re-imagined within a framework that recognizes childrens rights,
responsibilities and participation. However, as will be shown in the last part of this section,
despite the current laws endorsement of a new paradigm for youth justice, this very positive
development has been overshadowed by the current debates about the 2006 law that are still
structured around the dominant understandings and the polarity between the welfare and justice
traditions. As such, the discourse on the current law has been pulled back once again to the
restrictive question of whether it rescues children or properly punishes offenders.
A. FIRST ARTICULATION OF A YOUTH JUSTICE POLICY:
ORIGINS OF WELFARISM
Owing to the Philippines protracted colonial history, many of its laws and policies derive their
philosophies from those of the colonial power. The original articulation of a youth justice policy
in the Philippines was through a penal law derived from Spain. Despite using the vehicle of a
penal law signifying the basic justice model of crime and punishment the Spanish Penal
Code of 187085 in fact emphasized a distinctive consideration for the welfare of children. Two
provisions governed:
Art. 8. The following are not delinquent and are therefore exempt from criminal
liability:
xxx

85

This was extended to the Philippines by Royal Order on September 4, 1884 and took effect on December 17,
1886.

220
2. A person under nine years of age.
3. A person over nine years of age and under 15, unless he has acted with the
exercise of judgment.
The court shall make an express declaration with regard to this point in imposing a
penalty or in declaring said person irresponsible.
When the minor is declared irresponsible, in accordance with the provisions of this
and of the preceding number, he shall be delivered to his family with a charge to
guard and educate him. In the absence of a person to guard or educate him he shall
be taken to a charitable institution for the education of orphans and foundlings, and
he shall not leave said institution except at the time and under the conditions
prescribed for its inmates (emphasis added).86
Art. 84. Upon a person under 15 but over 9 years of age, who is not exempt from
liability by reason of the court having declared that he acted with the exercise of
judgment, a discretionary penalty shall be imposed, but always lower by two degrees
at least than that prescribed by law for the crime which he committed.
Upon a person over 15 and under 18 years of age the penalty shall always be
imposed in the proper degree which is next lower than that prescribed by law
(emphasis added).87
These provisions, which would be the basis of succeeding laws on child offending, embodied
two clear propositions. First, as embodied in the most comprehensive treatise of centuries of
Spanish laws, until a certain age, a child although he might attempt to commit an offenseno
man should believe that he could accomplish it, and if he should he would not have sufficient
intelligence to understand or know what he was doing.88 This introduced into youth justice
policy the use of age as the marker for intelligence and understanding to determine when a
child could enter the criminal justice system and begin to be held criminally responsible. Not
surprisingly, during this time there was no dispute with regard to the age that the law had set for
the commencement of criminal liability or the justification for such determination. As the first
articulation of a youth justice policy more so, the first expression of a minimum age of
criminal responsibility this law was considered a significant step towards the
institutionalization of a protective attitude towards children in general and child offenders in
particular. The promotion of the welfare of children and child offenders was made even more
evident with the use of the language of exemption from criminal responsibility.

86

(1870) The Penal Code, art. 8(2) and (3).


Ibid, art. 84.
88
Samuel Parsons Scott, Las Siete Partidas (Chicago: Commerce Clearing House, Inc., 1931) at 1307.
87

221

However, as the subsequent history of youth justice policies reveals, the appropriate age when
a child can be brought within the reach of the court system and be considered criminally
responsible has been a recurring issue. In fact, proponents of both the welfare and justice models
have utilized the standard of competence to call for the raising or lowering of the minimum
age of criminal responsibility.
Second, for a child found liable for an offense, there should not be inflicted upon him as severe
a penalty in person or property as would be inflicted on another person who was older, but a
much lighter punishment should be imposed.89 This was the precursor of the welfarist initiative
of alternative forms of punishment for child offenders, expressed in this early law as a
discretionary penalty but always lower. Although a child could be convicted and punished
with imprisonment, promoting the welfare of child offenders still meant being indulgent to the
failings of youth90 by protecting them from the full gravity of criminal punishment. Although
one can find in this early law the origins of the welfare approach, it did not completely disregard
a justice approach emphasizing responsibility and punishment.
B. SUSPENSION OF JUDGMENT AND ALTERNATIVE FORMS OF COMMITMENT:
INFLUENCES OF THE CHILD-SAVING MOVEMENT
With the arrival of the United States as a new colonial power, youth justice policy in the
Philippines was pushed towards a more manifest welfare approach reflecting the influence of
the child-saving movement sweeping the U.S. at that time. Juvenile delinquency was removed
from the penal law and was now governed by a special law dealing with juvenile offenders
which saw the introduction of two new principles: first, suspension of the pronouncement of
guilt for child offenders; and second, the commitment of child offenders to non-penal
institutions such as reformatory, charitable or educational establishments. This further
institutionalized a welfarist approach in the countrys youth justice policy.

89
90

Ibid.
Ibid at 1308.

222
Act No. 1438 enacted by the Philippine Commission on January 11, 1906 gave the courts
discretion to suspend judgment against a minor males between eight and 16 and females
between eight and 18 found guilty of crimes not punishable by life imprisonment or death. As
well, children could be sent to a charitable or educational institution for care and reform instead
of to a public prison or jail. The law provided:
Section 1. Whenever any male minor between the ages of eight and sixteen or any
female minor between the ages of eight and eighteen shall be found guilty by any
court of competent jurisdiction of an offense not punishable by life imprisonment or
death, the court, instead of directing the confinement of such minor in any public
prison or jail, may, in its discretion, suspend judgment and commit such minor to the
custody of any orphan asylum, reform school, charitable society, or society for the
prevention of cruelty to children, or to any other charitable or educational
institution having for its purpose the care, betterment, reform, or education of
minors, until such minor shall have reached his majority or for such less period as
to the court may seem proper: Provided, however, That the court prior to making
commitment of any minor to any such institution shall take into consideration the
religion of the minor and that of his parents or next of kin and shall not commit such
minor without the approval of the parents or next of kin to any private institution not
under the control and supervision of the religious sect or denomination to which
such minor and his parents or next of kin belong (emphasis added).91
At the outset, it should be noted that unlike the previous Spanish Penal Code of 1870, this law
did not explicitly state an age for the commencement of criminal responsibility. However, by
providing for the manner of treatment of child offenders between the ages of eight and 16 for
males and eight and 18 for females, the law implicitly set the minimum age of criminal
responsibility. It was implied that children could only enter the criminal court system at the
same age at which they could begin to benefit from the provisions on suspension of judgment
and commitment to non-penal institutions. The way the law was articulated suggested that the
minimum age of criminal responsibility was not an issue, with the real focus being the
possibility of the suspension of judgment and the alternative forms of commitment.
While under the Spanish Penal Code of 1870 children could be convicted and punished
although less harshly than adults this 1906 law allowed courts to suspend judgment and
commit the child to a non-penal institution. These new provisions meant that blame did not

91

Act No. 1438 (1906) An Act Providing for the Confinement of Juvenile Offenders Between Certain Ages to
Charitable or Educational Institutions Instead of to the Public Prisons or Jails, and for the Transfer of such
Offenders from Public Prisons or Jails to such Charitable or Educational Institutions, and for Other Purposes.

223
automatically attach to the child offender found guilty by the courts. The law also recognized
the need for the child offender to be cared for, bettered, reformed and educated rather than to be
confined in a public prison or jail.
In 1924,92 in an act directed at the care and custody of neglected and delinquent children, the
welfarist elements of the law were reinforced when the discretion of the court to grant
suspensions of sentence and order alternative forms of commitment was removed, making these
provisions mandatory. Also, the law was made applicable to any child under the age of 18,
effectively raising the upper age limit for child offenders who would benefit from these
provisions. The law provided:
Sec. 3. Whenever any boy or girl less than eighteen years of age shall be accused in
any court of an offense not punishable by life imprisonment or death, the court,
before passing sentence of conviction, shall suspend all further proceedings in the
case and shall commit such minor to the custody of any of the institutions mentioned
in sections one and two of this Act, until said minor shall have reached his majority
or for such less period as to the court may seem proper, subject to the conditions
provided in sections seven hereof, or may allow him to remain and be cared for
elsewhere, under probation officer, as hereinafter provided, whom the court may
require to report from time to time on the case: Provided, That the court prior to
making the commitment of any minor to any private institution shall take into
consideration the religion of the minor and that of his parents or next of kin, and
avoid his commitment to any private institution not under the control and
supervision of the religious sect or denomination to which such minor or his parents
or next of kin belong (emphasis added).93
The philosophy behind these provisions was very much reflective of the sentiments of the childsaving movement in the U.S. during the early 1900s which aimed at rescuing the delinquent,
dependent and neglected youth.94 Platt describes the American situation:
Underlying the juvenile court system was the concept of parens patriae by which
the courts were authorized to handle with wide discretion the problems of its least
fortunate junior citizens. The administration of juvenile justice, which differed in
many important respects from the criminal court system, was delegated extensive
powers of control over youth. A child was not accused of a crime but offered
92

Act No. 3203 (1924) An Act Relating to the Care and Custody of Neglected and Delinquent Children; Providing
Probation Officers Therefor; Imposing Penalties for Violations of its Provisions and for Other Purposes.
93
Ibid, s. 3.
94
Anthony Platt, The Child-Saving Movement and the Origins of the Juvenile Justice System in Ronald Berger
and Paul Gregory, eds, Juvenile Delinquency and Justice: Sociological Perspectives (Boulder, Colorado: Lynne
Rienner Publishers, Inc., 2009) at 17.

224
assistance and guidance; intervention in the lives of delinquents was not supposed
to carry the stigma of criminal guilt.[J]udgesconcerned themselves with
motivation rather than intent, seeking to identify the moral reputation of problematic
children (citations omitted).95
Further describing the American sentiment, Ryerson writes that the defect which produced
juvenile crime lay not so much in the child as in the environment from which he had come and,
therefore, that no child should be treated as a criminal.96 Adopting such an attitude, the
Philippine law of 1924 in fact provided:
All provisions of this Act and other laws applicable to minors shall be liberally
construed and the judgment of the court and the care, custody, and discipline of the
children by the persons in charge of them shall approximate that which they should
receive from their parents and they shall be treated, not as criminals, but as in need
of aid, encouragement, and guidance (emphasis added).97
Although the Philippine legislature did not create a special court for child offenders as
occurred in the U.S. at this time the concepts it introduced were, in the words of the Philippine
Supreme Court in 1925: [A] necessary measure for the better care of juvenile offenders,
providing that they be considered not as common criminals, but as children lacking help,
encouragement and guidance in the normal development.98 The rhetoric of children not being
treated as criminals translated into a construction of children as in need of aid, encouragement
and guidance. This justified the power of the state to save these children, leading to a long
history of a welfarist inclination in the countrys youth justice policy.
It is important to note, however, that the welfarist orientation of the law embodied in the
principles of suspension of sentence and commitment to non-penal institutions did not apply to
child offenders who committed serious crimes, i.e., those whose offenses were punishable by
life imprisonment or death. This exclusion, reflecting a justice approach of crime and
punishment, created a distinction based on the gravity of the offense. Thus, certain child
offenders could not benefit from the child-saving objective of the welfare model either
because they did not deserve being rescued or because they were beyond rescue. In these
95

Ibid at 17-18.
Ellen Ryerson, Best-Laid Plans: The Ideal Juvenile Court in Ronald Berger and Paul Gregory, eds, Juvenile
Delinquency and Justice: Sociological Perspectives (Boulder, Colorado: Lynne Rienner Publishers, Inc., 2009) at
28.
97
Act No. 3203, supra note 92, s. 14.
98
Bactoso v. Provincial Governor of Cebu, G.R. No. 24046, Sept. 25, 1925.
96

225
instances, they had to take responsibility for their actions and face the consequences of
punishment. Nevertheless, since the focus of the laws during this time was precisely to save the
juvenile offender who needed aid, encouragement and guidance, these laws were principally
construed as endorsing a welfarist approach.
C. OVER 40 YEARS OF CARE, CORRECTION AND EDUCATION:
CONTINUING THE WELFARE TRADITION
Six years later, in 1930, youth justice policy was returned to the countrys penal law with the
enactment of the Revised Penal Code,99 a situation that would remain for the next 40 years. This
return to penal law might have intimated a justice approach with a focus on crime and
punishment, however, there was still a markedly welfarist orientation to this move. As was true
of the original Spanish Penal Code of 1870, the provisions governing child offenders in this
penal law were again expressed as exemptions to criminal liability, indicating a continuation of
the welfarist justifications in the law. More significantly, the welfare approach was even further
established by extending the welfarist provisions of suspension of sentence and alternative
forms of commitment to all child offenders regardless of the nature or gravity of the offense.
In its Article 12, the Revised Penal Code provided:
Article 12. Circumstances which exempt from criminal liability. The following
are exempt from criminal liability:
xxx
2. A person under nine years of age.
3. A person over nine years of age and under fifteen, unless he has acted with
discernment, in which case, such minor shall be proceeded against in accordance
with the provisions of Art. 80 of this Code.
When such minor is adjudged to be criminally irresponsible, the court, in
conformably with the provisions of this and the preceding paragraph, shall commit
him to the care and custody of his family who shall be charged with his surveillance
and education otherwise, he shall be committed to the care of some institution or
person mentioned in said Art. 80 (emphasis added).100
99

Act No. 3815 (1930) An Act Revising the Penal Code and Other Penal Laws [Revised Penal Code].
Ibid, art. 12.

100

226
Also, the provisions introduced in 1906 and 1924 for the suspension of sentence of child
offenders and their commitment to a benevolent or charitable institution were retained, but this
time without qualification as to the nature or gravity of the crime for a child offender to benefit
from the law. The law provided:
Article 80. Suspension of Sentence of Minor Delinquents. Whenever a minor
under eighteen101 years of age, of either sex, be accused of a crime, the court, after
hearing the evidence in the proper proceedings, instead of pronouncing judgment,
shall suspend all further proceedings and shall commit such minor to the custody or
care of a public or private, benevolent or charitable institution, established under
the law for the care, correction or education of orphaned, homeless, defective and
delinquent children, or to the custody or care of any other responsible person in any
other place subject to visitation and supervision by the Public Welfare
Commissioner or any of his agents or representatives, if there be any, or otherwise
by the superintendent of public schools or his representatives, subject to such
conditions as are prescribed hereinbelow, until such minor shall have reached his
majority or for such less period as the court may deem proper (emphasis added).102
As with the original Spanish Penal Code of 1870, this Revised Penal Code explicitly declared
nine as the minimum age of criminal responsibility. However, because of the presence of the
welfarist provisions with respect to suspension of sentence and alternative forms of
commitment, there was little concern that the age was set too low. By suspending the
pronouncement of guilt, the youth justice system was allowed to shield the child from the stigma
of criminal guilt. Also, through the process of commitment to a non-penal institution, the
delinquent child who the law saw as sharing the characteristics of an orphaned, homeless and
defective child would be rescued by being cared for, corrected and educated. The objective
of providing for the care, correction and education of child offenders through alternative forms
of commitment not only upheld the principle of the welfare of the child but also responded to
the needs of the child which were understood as the cause of the offending in the first place.
Most importantly, as evidence of the clear endorsement of a welfarist approach to the system of
youth justice, the welfarist provisions of the law now applied to all child offenders regardless of
the nature or gravity of the offense.

101

However, this age was lowered in 1946 to benefit only a minor of either sex under sixteen years of age.
Republic Act No. 47 (1946) An Act to Amend Article Eighty of the Revised Penal Code, As Amended.
102
Revised Penal Code, supra note 99, art. 80.

227
Previously, the Spanish Penal Code of 1870 had introduced the principle that a child between
the ages of nine and 15 could be held criminally responsible if there was an exercise of
judgment. In the Revised Penal Code, this was reformulated into the principle of a child acting
with discernment. With this principle, the law was seen to provide yet another layer of
protection for children over the age of nine and under 15, who committed criminal acts but
could not be considered criminally liable due to deficiencies in their understanding of right and
wrong. This concept of discernment is similar to the common law principle of doli incapax
which extended to children above the minimum age of criminal responsibility the benefit of a
rebuttable presumption that they could not distinguish between right and wrong and were thus
incapable of committing a crime.103
D. YOUTH JUSTICE POLICY IN CHILD WELFARE LAW:
WELFARE AND ITS INTRUSIVE REACH
After more than 40 years of being governed by the Revised Penal Code, youth justice policy
expanded its reach when it was removed from the penal law and reintroduced in the countrys
all-encompassing child welfare law. The articulation of youth justice policy in the countrys
Child and Youth Welfare Code104 in 1974 marked a broadening of the scope of the welfare
approach: dealing with child offenders was now to be seen as a matter of child protection. This
placement of the youth justice system within the countrys welfare law meant an increased
protection of the welfare of child offenders. More children were brought within the purview of
the justice system to protect their welfare and a wider range of childrens activities were now
monitored and scrutinized to prevent delinquency. However, with the widening reach of the
youth justice policy also came an expansion of the discretionary power of the state to intrude
into the lives of children. Most tellingly, this increasingly intrusive reach of the youth justice
system under the banner of welfare and protection exposed the essentially punitive way that
youth justice laws and policies were actually being implemented, informed by often extreme
versions of a justice oriented approach that insisted on imposing responsibility, blame and
punishment especially incarceration. Ironically, the move to place youth justice policy within

103

See e.g. Stephanie Millet, The Age of Criminal Responsibility in an Era of Violence: Has Great Britain Set a
New International Standard? (1995) 28 Vand J Transnatl L 295.
104
Child and Youth Welfare Code, supra note 18.

228
the welfare law criminalized more activities of children, exposing more of them to the punitive
treatment that child offenders had been experiencing in practice.
In unequivocal terms, the 1974 Child and Youth Welfare Code mandated that in all questions
regarding the care, custody, education and property of the child, [his/her] welfare shall be the
paramount consideration.105 The law not only provided for the protection and care of youthful
offenders, it also put in place an entire mechanism for the prevention of child delinquency.
Primarily, the law defined a youthful offender as one who [was] over nine years but under
twenty-one years of age at the time of the commission of the offense.106 Thus, a child nine
years of age or under at the time of the offense was exempt from criminal liability.107 Such child
was to be committed to the care of his or her father or mother, or nearest relative or family
friend in the discretion of the court and subject to its supervision.108 The same was to be done
for a child over the age of nine and under 15 who acted without discernment.109 For those
considered criminally responsible and found liable, the provisions on suspension of sentence
and alternative forms of commitment again applied:
Article 192. Suspension of Sentence and Commitment of Youthful Offender. - If
after hearing the evidence in the proper proceedings, the court should find that the
youthful offender has committed the acts charged against him the court shall
determine the imposable penalty, including any civil liability chargeable against him.
However, instead of pronouncing judgment of conviction, the court shall suspend all
further proceedings and shall commit such minor to the custody or care of the
Department of Social Welfare, or to any training institution operated by the
government, or duly licensed agencies or any other responsible person, until he shall
have reached twenty-one years of age or, for a shorter period as the court may deem
proper, after considering the reports and recommendations of the Department of
Social Welfare or the agency or responsible individual under whose care he has been
committed.
The youthful offender shall be subject to visitation and supervision by a
representative of the Department of Social Welfare or any duly licensed agency or
such other officer as the Court may designate subject to such conditions as it may
prescribe (emphasis added).110

105

Ibid, art. 8.
Ibid, art. 189.
107
Ibid.
108
Ibid.
109
Ibid.
110
Ibid, art. 192.
106

229
The Child and Youth Welfare Code advanced its welfare objectives for child offenders in several
ways. First, the welfare provisions extended to children from the ages of nine to 21. This raised
the upper limit of those who would benefit from the law. The wider definition of youthful
offenders expanded the welfare benefits to as many children as possible. Second, the law
afforded protection to those above the minimum age of criminal responsibility of nine but below
15 with the rebuttable presumption that they acted without discernment and were thus criminally
irresponsible. Third, those child offenders below the age of criminal responsibility and those
found criminally irresponsible (i.e., those who acted without discernment) were still rescued by
being committed to their parents or relatives under the supervision of the court. Fourth, as
provided for previously, youthful offenders found criminally liable were to benefit from the
suspension of the pronouncement of the judgment of conviction and commitment to non-penal
institutions, such as the Department of Social Welfare, or any training institution operated by the
government or duly licensed agencies or any other responsible person. Fifth, the benefits of
suspension of sentence and alternative forms of commitment were mandatory, at least when the
law took effect. Finally, sixth, these benefits applied regardless of the nature or gravity of the
offense of the child offender, again at least when the law took effect. Reflecting the constant
interplay between welfare and justice, it should be noted, however, that some of these
protections were subsequently rolled back. The law was amended three years later, in 1977, to
remove the automatic operation of the suspension of judgment and commitment to non-penal
institutions adding the condition that the court may grant these benefits upon application of the
youthful offender if it [the court] finds that the best interest of the public as well as that of the
offender will be served thereby.111 As well, the amendatory law excluded from these welfarist
provisions a youthful offender who has once enjoyed suspension of sentenceorone who is
convicted of an offense punishable by death or life imprisonment.112
Because the youth justice system was now embodied in the welfare law, there was a liberal
articulation of the welfarist provisions that protected child offenders. However, with the
increased protection of the welfare of child offenders also came an expansion of the intrusive
reach of youth justice policy into the lives of children. This affected children in two respects:
111

Presidential Decree No. 1179 (1977) Amending Certain Provisions of Chapter Three, Title Eight of Presidential
Decree Numbered Six Hundred and Three Otherwise Known as the Child and Youth Welfare Code and for Other
Purposes, s. 2.
112
Ibid.

230
first, a wider range of childrens activities were now either monitored to prevent delinquency or
actually brought within the purview of the youth justice system by being criminalized; and
second, more children including predelinquent children, sometimes referred to as children at
risk, became entangled with the youth justice system.
The first effect of the widening reach of the youth justice system through its welfarist policy was
the closer monitoring of as many activities of children as possible. The lines between acts that
were criminal and those that were considered harmful to the welfare of children became
blurred. This signified a movement to bring within the ambit of government control a set of
youthful activities that had been previously ignored or dealt with on an informal basis.113 For
example, to prevent child offending, the Child and Youth Welfare Code mandated parents to
monitor and supervise the innocent daily activities of children, including their recreation.114
Thus, the Code in its arts. 52-55 provided as follows:
Art. 52. Association with Other Children Parents shall encourage the child to
associate with other children of his own age with whom he can develop common
interests of useful and salutary nature. It shall be their duty to know the child's
friends and their activities and to prevent him from falling into bad company. The
child should not be allowed to stay out late at night to the detriment of his health,
studies or morals.
Art. 53. Community Activities Parents shall give the child every opportunity to
form or join social, cultural, educational, recreational, civic or religious
organizations or movements and other useful community activities.
Art. 54. Social Gatherings When a party or gathering is held, the parents or a
responsible person should be present to supervise the same.
Art. 55. Vices Parents shall take special care to prevent the child from becoming
addicted to intoxicating drinks, narcotic drugs, smoking, gambling, and other vices
or harmful practices.115
When children stepped into public spaces, beyond the reach of parental supervision, their mere
presence (reformulated as loitering or vagrancy) set into motion the youth justice system.
Curfew regulations, sanctioned by law116 specifically targeted children by restricting their
movement and activities. A number of major cities in the National Capital Region (NCR),
113

Platt, supra note 94 at 18-19.


Child and Youth Welfare Code, supra note 18, art. 46(3).
115
Ibid, arts. 52-55.
116
Ibid, art. 139.
114

231
including the capital of Manila, in fact implemented curfew regulations against children.117
These regulations usually ranged from the hours of 10 p.m. to 4 a.m., during which time
children were not allowed in public places or any other area outside the immediate vicinity of
their residence.118 Violations of curfew regulations elicited sanctions ranging from reprimand to
imprisonment of up to 10 days for repeat offenders. By regulating the movement of children, the
state was, in fact, protecting children from engaging in activities that were not considered
lawful thus harmful.
A number of cities and municipalities also implemented anti-vandalism laws. These regulations
attempted to curb the defacing of any private or public property through painting, writing,
scribbling, scrawling, drawing, smearing, colouring, stamping or inscribing. These laws were
premised on the belief that acts of vandalism were signs of disorder in a community and an open
and direct challenge to authorities. As such, children had to be removed from the ambit of such
dangerous activities. Some other welfarist regulations that criminalized activities of children
included:119
an indecent exposure and disorderly behavior ordinance in Manila;120
a prohibition on the selling of merchandise on the streets;
a regulation disallowing the playing of video games during the hours of school or
beyond 8pm;
prohibitions against the use of roller skates and skateboards on national and city roads;
an anti-toy gun ordinance which prohibited the sale or possession of metal or plastic
toy guns capable of being fired with the use of plastic pellet bullets;121 and
in some jurisdictions, prohibitions against kite flying.
These legal provisions were clear examples of what Handler and Rosenheim have described as
the expansion of the definition of delinquency to include:

117

Adhikain Para sa Karapatang Pambata Ateneo Human Rights Center, Research on the Situation of Children in
Conflict With the Law in Selected Metro Manila Cities (Quezon City, Philippines: Save the Children UK, 2004)
[Children in Conflict with the Law in Metro Manila]. These curfew regulations were enacted from the late 1970s to
the early 2000s.
118
Some exceptions to the curfew regulations included: children who were accompanied by their parents; those
running lawful errands; those studying at night schools and those lawfully working. From this, there was a clear
sense of what activities the State viewed as proper for children.
119
Children in Conflict with the Law in Metro Manila, supra note 117.
120
Indecent exposure was dressing in lewd attire not in consonance with the customs and traditions of the people,
and which invited/induced the public to sexual pleasure, or enticed them to offensive and scandalous behaviour
while disorderly behavior referred to a drunken, boisterous, rude or indecent manner.
121
The ordinance was a result of incidents where unscrupulous teenagers or adults had used such toys, which
appear to be real guns, in committing crimes.

232
[Violations] of vaguely defined catchalls that seem to express the notion that the
adolescent, if allowed to continue, will engage in more serious conduct. In this latter
category, one finds statutes proscribing associations with vicious or immoral
persons, running away from home without just cause, and using vile, obscene, or
vulgar language, as well as conduct leading to the conclusion that the youth is
incorrigible, disorderly, given to sexual irregularities, beyond the control of
parent or guardian or that he so deports himself as willfully to injure or endanger
the morals or health of himself or others.122
Furthermore, the expanded reach of the welfarist agenda of youth justice policy also saw the
entanglement of more children in the protective efforts of the law. Youth justice policy not only
dealt with juvenile delinquents but also with predelinquent children children who occupy the
debatable ground between criminality and innocence.123 The impression created was that youth
justice policy could accurately predict and identify those headed towards a criminal career.
This led to specific children and their activities being targeted and labeled as criminal.
One of the largest and most visible groups of predelinquent children that the youth justice
system targeted was street children. The term street children in the Philippines has been used
to describe young boys and girls (under the age of 18) who consider the streets their home and
source of livelihood.124 Although it has been difficult to establish the number of street
children,125 estimates have ranged from 45,000126 to as many as 200,000.127 In addition to living
on the street, street children also work and engage in what are perceived to be high-risk
behaviors.128 In response, a number of national laws and municipal ordinances were enacted

122

Handler and Rosenheim, supra note 40 at 395.


Platt, supra note 94 at 18.
124
Henry Ruiz, A Study of Policies and Programmes in the Philippines Addressing the Right of Street Children to
Education (Philippines: Child Hope Asia Philippines, 2006).
125
Ibid at 11. Ruiz explains: It has always been difficult to establish the correct number of street children in the
Philippines especially because of their constant mobility and vacillating nature. Street children are not usually
counted, nor subject to census, so their numbers are not usually known. Some of them are highly visible. Some of
them work on the streets under cover of darkness. Moreover, their experiences overlap with other categories of
children, such as those who are trafficked and those engaged in exploitative work. This reality further complicates
the problem of counting them.
126
Ibid at 12.
127
Ibid. In considering the Third and Fourth Periodic Reports submitted by the Philippines in 2009 to the
Committee on the Rights of the Child under the UNCRC, the Committee estimated the number of children living in
the streets in the Philippines to nearly 250,000. United Nations Committee on the Rights of the Child,
Consideration of Reports Submitted by States Parties under Article 44 of the Convention Concluding Observations:
The Philippines, CRC/C/PHL/CO/3-4, 52nd Sess (2009) at 21, par. 74.
128
Catherine Scerri, Sagip or Huli?: Rescue of Street Children in Caloocan, Manila, Pasay and Quezon City
(Manila: Bahay Tuluyan and UNICEF Philippines, 2009).
123

233
with the aim of using the youth justice system to protect the welfare of these children.129
Most children on the streets entered the youth justice system through the catch-all penal
provision on vagrancy.130 Beginning in 1930, the Revised Penal Code penalized vagrants.131 The
goal of charging street children under the vagrancy provisions was to protect the welfare of
these disadvantaged children. However, this was done by stigmatizing their realities and
labeling their activities as criminal. The Mendicancy Law of 1978132 went further and made
begging, one of the main activities of street children, punishable under the law. The child-saving
approach of this law was made clear in the preamble in which it was stated that mendicancy
[bred] crime, [created] traffic hazards, [endangered] health, and [exposed] children to
indignities and degradation.133 To save children from this dreadful condition and prevent
criminality in the process they were brought into the youth justice system.134
129

See discussion in the previous Chapter on Labor where street children as workers having become so
commonplace are, in fact, ignored by labor laws. As such, they are dealt with by the state through the criminal
justice system.
130
Scerri, supra note 128.
131
Revised Penal Code, supra note 99, art. 202 provides:
Vagrants and prostitutes; penalty. The following are vagrants:
1. Any person having no apparent means of subsistence, who has the physical ability to work and
who neglects to apply himself or herself to some lawful calling;
2. Any person found loitering about public or semi-public buildings or places or trampling or
wandering about the country or the streets without visible means of support;
3. Any idle or dissolute person who ledges in houses of ill fame; ruffians or pimps and those who
habitually associate with prostitutes;
4. Any person who, not being included in the provisions of other articles of this Code, shall be found
loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable
purpose;
5. Prostitutes.
For the purposes of this article, women who, for money or profit, habitually indulge in sexual
intercourse or lascivious conduct, are deemed to be prostitutes.
Any person found guilty of any of the offenses covered by this articles shall be punished by arresto
menor [Arresto Menor is a considered a light penalty the duration of which is imprisonment from
one day to 30 days.] or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor
[Arresto Mayor is a considered a correctional penalty the duration of which is imprisonment from
one month and one day to six months.] in its medium period to prision correccional [Prision
Correccional is a considered a correctional penalty the duration of which is imprisonment from six
months and one day to six years.] in its minimum period or a fine ranging from 200 to 2,000 pesos,
or both, in the discretion of the court.
132
Presidential Decree No. 1563 (1978) Establishing an Integrated System for the Control and Eradication of
Mendicancy, Providing Penalties, Appropriating Funds Therefor, and for Other Purposes [Mendicancy Law of
1978].
133
Ibid, 2nd whereas clause.
134
Ibid, s. 4 provides:
Section 4. Apprehension Of And Services For Persons Found Begging. Any infants or child 8 years
old and below who is found begging or is being utilized by a mendicant for purposes of begging
shall be apprehended as a neglected child under Article 141 of PD 603 and shall be committed to
the custody and care of the Department of Social Services and Development or to any duly licensed

234

Another welfarist response of youth justice policy specifically targeting street children was the
enactment of a law to save them from volatile substances used to induce intoxication. Sniffing
rugby was tagged as a widespread activity among street children where a solvent-like solution
(a common brand is Rugby) was inhaled to induce intoxication. A 1978 law prohibited such
activity, specifically to curtail this common practice among street children as it [induced]
dependency, self-destructive and anti-social actsand [led] to the use of other drugs.135
The targeting of predelinquent children, particularly street children and their activities, echoed
the claim of the original child-saving movement in the U.S. that the youth justice system could
transform potential criminals into respectable citizens by training them in habits of industry,
self-control and obedience to law.136 Ryerson writes:
By blurring the distinctions between dependent, neglected, and delinquent children,
by minimizing questions of guilt or innocence of specific acts, and by including in
the definition of delinquency noncriminal conduct, the juvenile court reformers were
intentionally advocating a jurisdiction for the court which would augment the power
of the state to intervene in the lives of children and in the relationships between the
children and their parents.137
Ultimately, the expansive reach of the youth justice system brought a significant development: it
highlighted the way in which youth justice laws and policies were actually being implemented.

child placement agency or individual.


Any minor over 9 years of age under 15 found begging or is being utilized for purposes of begging
and who acted without discernment shall be apprehended as a neglected child under Article 141 of
Presidential Decree No. 603 and shall be committed to the custody and care of the Department of
Social Services and Development or to any duly licensed placement agency or individual.
Any minor over 9 years of age and under 15 who is found begging or is being utilized for the
purpose of begging and who acted with discernment shall be proceeded against in accordance with
the provisions of Chapter 3, Title VIII of Presidential Decree No. 603 [referring to Youthful
Offenders] (emphasis added). [This means that a child over nine years of age but under 15 found
begging and who acted with discernment shall be considered a youthful offender. As such, the child
shall be entitled to a suspension of the pronouncement of guilt and shall be committed to the
Department of Social Welfare or any other similar institution.]
Any person not otherwise covered in the preceding paragraph of this Section who is found begging
and who is physically or mentally incapable of gainful occupation shall be provided the integrated
package of services by the Department of Social Services and Development, the Welfare units of
local governments and other cooperating agencies.
135
Presidential Decree No. 1619 (1979) Penalizing the Use or Possession or the Unauthorized Sale to Minors of
Volatile Substances for the Purpose of Inducing Intoxication or in Any Manner Changing, Distorting or Disturbing
the Auditory, Visual or Mental Process, 2nd whereas clause.
136
Platt, supra note 94 at 18.
137
Ryerson, supra note 96 at 34.

235
The reality was that despite the rhetoric of welfare in youth justice laws and policies, they were
implemented punitively with reliance on ideas rooted in the justice model, indeed often extreme
harsh versions of that model, that insisted on imposing responsibility, blame and punishment
especially incarceration. Ironically, expansion of the welfarist objectives envisioned by the
Child and Youth Welfare Code exposed more children to the punitive treatment that child
offenders were actually experiencing.
E. BLURRING THE LINES BETWEEN WELFARE AND JUSTICE:
SEEDS OF THE EMERGING PARADIGM
In the 1990s, after the Philippines signing onto and ratification of the UNCRC, youth justice
laws and policies began to respond to the apparent dichotomy between the welfare and justice
approaches and the incongruence between rhetoric and practice.138 Laws and policies began to
acknowledge the values of both the welfare and justice models and to gradually harmonize the
two, paving the way for a more radical reformulation of the youth justice system a decade later.
As laws and policies affirmed their commitment to uphold the welfare of child offenders, at the
same time, they institutionalized a formal system of justice in which the rights of children were
primary.
In 1995, after the expansive welfarist approach of the Child and Youth Welfare Code had
been in place for 20 years, the Council for the Welfare of Children (CWC) finally enacted
the Rules139 to implement that same Code. Primarily trying to address the conflation between
welfare and justice in the implementation of the law, the CWC established basic guidelines
on the apprehension, investigation, prosecution and rehabilitation of youth offenders
consistent with the need to protect their rights and promote their best interests. On the one
hand, these Rules maintained the welfarist provisions of the Child and Youth Welfare Code
specifically those relating to minimum age of criminal responsibility;140 referral of children
138

This inconsistency between rhetoric and reality will be discussed in detail in the immediately succeeding subsection to provide a context for the current law.
139
Rules and Regulations Pursuant to Article 209 of Presidential Decree No. 603, The Child and Youth Welfare
Code, as Amended (1995) Rules and Regulations on the Apprehension, Investigation, Prosecution and
Rehabilitation of Youth Offenders.
140
Ibid, s. 21 provides:
Exemption from Criminal Liability. If the youth who is alleged to have committed an offense is
nine years of age or under at the time of the commission of the offense, he shall be exempt from

236
to a social worker for supervision, counseling or some other intervention measures or
services;141 and suspension of sentence.142 But equally important, within this welfarist
approach, the intrusive reach of youth justice was circumscribed by a system whereby the
legal rights of child offenders were recognized and protected. Specifically, the Rules
provided protections with respect to the manner of apprehension;143 the investigation
process;144 and commitment to a penal institution;145 and also recognized the legal rights of
criminal liability and shall be committed by the judge to the care of his parents, or nearest relative or
family friend in the discretion of the court and subject to its supervision. The same shall be done for
a child over nine years and under fifteen years of age at the time of the commission of offense,
unless he acted with discernment.
141
Ibid, s. 8 provides:
Referral of Case to Social Worker. After consultations with the Department and if the interest of
the youth will be served thereby, the arresting officer shall release the youth to the custody of a
social worker or a responsible person in the community for supervision, counseling or provision of
other intervention measures or services.
142
Ibid, s. 21 provides:
Suspension of Sentence. If, after hearing, the court finds that the youth committed the acts charged
against him, the court shall determine the imposable penalty, including any civil liability chargeable
against him.
However, instead of pronouncing judgment of conviction, the court upon application of the youth
offender and if it finds that the best interest of the public as well as that of the offender will be
served thereby, shall suspend all further proceedings and shall commit the youth offender to the
custody or care of the Department, or to any training institution operated by the Government, or any
other responsible person, until he has reached twenty-one years of age, or for a shorter period as the
court may deem proper after considering the reports and recommendation of the Department, or the
government training institution, or responsible individual under whose care the youth offender had
been committed.
143
Ibid, s. 4 provides:
Apprehension of Youth. Whenever a youth is taken into custody for an alleged act of delinquency,
the arresting police officer shall immediately inform the youth of the reason for his apprehension
and advise the youth of his legal rights in a language that is understood. If the arresting police
officer is not in uniform, he shall identify himself to the youth and present identification papers.
Thereafter, the youth shall be brought immediately to the nearest police station where the
apprehension, including the name of the arresting officer, shall be recorded in the police blotter. The
police shall notify the Department and the parents or guardian of the youth of the cause or reason of
apprehension is made.
Also, s. 5 provides:
Manner of Apprehension of Youth. The arresting police officer shall not employ unnecessary
force in arresting or searching the youth. A female youth shall only be searched by a female police
officer. Vulgar or profane words shall not be used. Unless absolutely necessary, handcuffs or other
instruments of restraint shall not be used on the child.
144
Ibid, s. 6 provides:
Investigation/Interview of Youth. A youth shall only be investigated or his statement secured in
the presence of his legal counsel and whenever possible his parents, guardian or a social worker. The
parents or guardian shall be informed of the nature of the offense allegedly committed by the youth
and advised of the right of the youth to remain silent and to have competent legal counsel preferably
of his own choice. The interview of the child shall, as far as practicable, be held privately.
145
Ibid, s. 30 provides:
Commitment to Penal Institution for Service of Sentence. A youth offender who is under twenty
one years of age at the time of the pronouncement of the judgment of conviction shall be committed
to the proper penal institution to serve the remaining period of his sentence. Whenever practicable,
the convicted youth offender shall be completely segregated from adult offenders and grouped

237
child offenders, especially the right to counsel146 and the right to privacy.147 In its
straightforward articulation, the Rules were espousing a welfarist approach within a system
that recognizes and protects the rights of children. As such, it began blurring the lines
between welfare and justice and was moving though preliminarily towards an emerging
paradigm that dissociates rights protection from a punitive justice model.
A few years after the CWC promulgated its Rules, the Family Courts Act of 1997148 was enacted
establishing a separate system of courts the Family Courts to hear and decide cases
involving a range of family issues, including criminal cases involving children.149 With the
establishment of a court system that specifically deals with child offenders, the dichotomy
between the welfare and justice models diminished even more. On the one hand, the law
acknowledges the duty of the state to promote the welfare of children by taking into account
their peculiar circumstances.150 As such, the law also reaffirms the welfarist provisions in the
Child and Youth Welfare Code specifically relating to suspension of sentence and alternative
forms of commitment. It mandates that the sentence of a child offender found guilty of any

according to age levels, pathological or behavioral tendencies or other suitable criteria to ensure his
speedy rehabilitation.
146
Ibid, s. 10 provides:
Right of Youth to Counsel. The arresting officer, prosecutor or judge shall ensure that the youth is
represented by counsel before proceeding with the investigation or trial. Counsel shall be assigned to
represent the youth if his parents or guardian are unable to give him adequate representation.
147
Ibid, s. 33 provides:
Records of Proceedings before a Prosecutor or Municipal Judge. Where a youth has been charged
before any prosecutor or before a municipal judge for the commission of an offense and the charges
have been ordered dropped, all the records pertaining thereto, irrespective of the results of the
proceedings, shall be considered as privileged and may not be disclosed directly or indirectly to any
person for any purpose whatsoever.
As well, s. 34 provides:
Case Records. Where a youth has been charged before the court and after the trial is acquitted, or
if the case against him is dismissed, or if he is committed to a training institution and is subsequently
released pursuant to Section 25 of these Rules, all the records of his case shall be considered as
privileged and may not be disclosed directly or indirectly to anyone except to the extent necessary to
answer inquiries received from
a. another court or from the Department or other government agency to determine if the youth
offender may have his sentence suspended or if he may be granted probation under the provisions of
the Probation Law; or
b. from any victim of the youth offender, or if the victim is deceased, from the legal heirs of such
victim, relating to the final disposition of the civil case filed against the youth offender in connection
with the offense committed by the latter.
148
Republic Act No. 8369 (1997) An Act Establishing Family Courts, Granting Them Exclusive Original
Jurisdiction Over Child and Family Cases, Amending Batas Pambansa Bilang 129, as Amended, Otherwise Known
as Act of 1980, Appropriating Funds Therefor and for Other Purposes [Family Courts Act of 1997].
149
Ibid, s. 5(a).
150
Ibid, s. 2.

238
offense shall be suspended without need of application.151 With respect to the alternative
forms of commitment, aside from the institutions mentioned in the Child and Youth Welfare
Code, the law also specifically provides for alternatives to detention and institutional care.
These include counseling, recognizance, bail, community continuum, or diversions from the
justice system.152
Also reflective of the welfare perspective is the underlying principle of family courts that child
offending has a strong and direct relationship with issues relating to the family. The same family
court, in fact, has jurisdiction over cases involving annulment and declaration of nullity of
marriages; guardianship; custody of children; support; adoption; child abuse; petitions for
declaration of status of children as abandoned, dependent or neglected; petitions for voluntary or
involuntary commitment of children; the suspension, termination, or restoration of parental
authority; and other similar cases.153
On the other hand, however, the creation of a separate court for children also institutionalized a
formal system of justice that clearly attributes responsibility. Such attribution of responsibility is
done within a family court system where children are now clearly recognized as rights bearers.
Thus, the institution of the family courts is a demonstration of a youth justice system that
protects the welfare of child offenders but at the same time attributes responsibility not
necessarily tied to punishment within a scheme of rights. The coming together of the welfare
and justice approaches signifies that the legal rights held by children in conflict with the law
transcend both models and are held by them irrespective of their needs and circumstances or
deeds and responsibility.
In a major development in 2002, the Philippine Supreme Court, through an en banc resolution,
moved more explicitly into the harmonization of the welfare and justice approaches. With the
UNCRC as a major influence, the Court shifted the youth justice system in the direction of the
emerging paradigm and clearly paved the way for the major reformulation of youth justice law
in 2006. The Rule on Juveniles in Conflict with the Law (2002 SC Rules)154 was an explicit
151

Ibid, s. 5(a).
Ibid, s. 8.
153
Ibid, ss. 5(b)-(k).
154
A.M. No. 02-1-18-SC (2002) Rule on Juveniles in Conflict with the Law.
152

239
espousal of values that have characterized both approaches to youth justice policy. Evident in
this pronouncement was a balancing of interests. On the one hand, the child offender was
recognized as having distinct characteristics as a child. Thus, the 2002 SC Rules recognized a
basic concern for the welfare of child offenders. However, at the same time they acknowledged
an attribution of responsibility within a system where rights were fundamental. The system of
youth justice then was not necessarily directed at either the rescue of the innocent child or the
attribution of individual responsibility within the context of blame or punishment for the
delinquent child. Instead, echoing the language of the UNCRC, the 2002 SC Rules
reformulated youth justice as a system that treats every juvenile in conflict with the law in a
manner that recognizes and upholds his human dignity and worth155 Within this reformulation,
welfare and justice were understood within a context that emphasized instilling respect for the
fundamental rights and freedom of others and taking into account the childs, developmental
age and the desirability ofreintegration into and assumption of a constructive role in society
in accordance with the principle of restorative justice.156
In its understanding of welfare, the 2002 SC Rules was guided by the fundamental principle of
remov[ing] from juveniles in conflict with the law the stigma of criminality and the
consequences of criminal behavior.157 This was realized through the diversion from the justice
system of juveniles who can be cared for or placed under community-based alternative
programs of treatment, training and rehabilitation in conformity with the principle of restorative
justice.158 The 2002 SC Rules provided for diversion proceedings for less serious offences,159
offering mechanisms whereby the child would not be brought within a rigid court system but
instead referred to alternative measures or services offered by non-court institutions.160 For
155

Ibid, s. 2.
Ibid.
157
Ibid, s. 2(d).
158
Ibid, ss. 2(b).
159
Ibid, ss. 20-21. The diversion proceedings were for child offenders charged with offenses where the maximum
penalty imposed by law is imprisonment of not more than six (6) months, regardless of fine or fine alone regardless
of amount. Such proceedings considered the following factors: The record of the juvenile on his conflict with the
law; Whether the imposable maximum penalty of the offense is more than six (6) months, regardless of fine; or
only a fine, regardless of amount; Whether the juvenile is an obvious threat to himself and/or the community;
Whether the juvenile is unrepentant; Whether the juvenile or his parents are indifferent or hostile; and Whether
the juveniles relationships with his peers increase the possibility of delinquent behavior.
160
Ibid, s. 22 provides:
Diversion Programs. The diversion program designed by the Committee shall be distinct to each
juvenile in conflict with the law limited for a specific period. It may include any or a combination of
the following:
156

240
those who could not avail themselves of diversion proceedings and who were eventually found
criminally responsible by the court, the 2002 SC Rules provided for the automatic suspension of
sentence, except for the most serious offences,161 and disposition measures best suited for the
rehabilitation and welfare of the child offender.162
On the other hand, with respect to the justice approach, the 2002 SC Rules also clearly
incorporated the principle of attribution of responsibility. Such responsibility was understood
within the framework of instilling respect for the fundamental rights and freedoms of
others.163 Thus, diversion programs provided for in the 2002 SC Rules were described as
alternative child-appropriate process[es] of determining the responsibility and treatment of a
juvenile in conflict with the law on the basis of his social, cultural, economic, psychological or
educational background without resorting to formal court adjudication.164 This signified that
the 2002 SC Rules did not undermine the principle of responsibility but instead reformulated it
within the individual context of the child and the demands of restorative justice. The 2002 SC
Rules provided that in instances where there is a finding of criminal responsibility, judgment
against the child shall be guided by the following:

a) Written or oral reprimand or citation;


b) Return of property;
c) Payment of the damage caused;
d) Written or oral apology;
e) Guidance and supervision orders;
f) Counseling for the juvenile and his family;
g) Training, seminars and lectures on
(i) anger management skills;
(ii) problem-solving and/or conflict resolution skills;
(iii) values formation; and
(iv) other skills that will aid the juvenile to properly deal with situations that can lead to a
repetition of the offense;
h) Participation in available community-based programs;
i) Institutional care and custody; or
j) Work-detail program in the community.
161
Ibid, s. 32 provides:
The sentence shall be suspended without need of application by the juvenile in conflict with the
law.The benefits of suspended sentence shall not apply to a juvenile in conflict with the law who
has once enjoyed suspension of sentence, or to one who is convicted of an offense punishable by
death, reclusion perpetua or life imprisonment, or when at the time of promulgation of judgment the
juvenile is already eighteen (18) years of age or over.
162
Ibid. Disposition measures may include: [1.] care, guidance, and supervision orders; [2.] drug and alcohol
treatment; [3.] participation in group counseling and similar activities; [4.] commitment to the Youth Rehabilitation
Center of the DSWD or other centers for juvenile in conflict with the law authorized by the Secretary of the DSWD
163
Ibid, s. 2.
164
Ibid, s. 4(f).

241
1. It shall be in proportion to the gravity of the offense, and shall consider the
circumstances and the best interests of the juvenile, the rights of the victim, the
needs of society in line with the demands of restorative justice.
2. Restrictions on the personal liberty of the juvenile shall be limited to the
minimum. Where discretion is given by law to the judge to determine whether the
penalty to be imposed is fine or imprisonment, the imposition of the latter should be
preferred as the more appropriate penalty.
3. No corporal punishment shall be imposed.165
Within these understandings of welfare and justice, the 2002 SC Rules clearly laid out the
substantive and procedural rights166 of child offenders, insisting, once again, on the
harmonization of both approaches through a procedure in the adjudication of juveniles in
conflict with the law that takes into account their distinct circumstances and assures the parties
of a fair hearing with their constitutional and statutory rights and recognized and respected
(emphasis added).167 In envisioning both a fair adjudicative process and one that takes into
account the distinct circumstances of the child, the 2002 SC Rules clearly demonstrated a
blurring of the sharp lines between the welfare and justice approaches where rights protection
was now dissociated from a punitive justice model.
165

Ibid, s. 30.
Ibid, s. 26 provides:
Duty of the Family Court to Protect the Rights of the Juvenile. In all criminal proceedings in the
Family Court the judge shall ensure the protection of the following rights of the juvenile in conflict
with the law:
(a) to be presumed innocent until the contrary is proved beyond reasonable doubt;
(b) to be informed promptly and directly of the nature and cause of the charge against him, and if
appropriate, through his parents or legal guardians;
(c) to be present at every stage of the proceedings, from arraignment to promulgation of judgment.
The juvenile may, however, waive his presence at the trial pursuant to the stipulations set forth in his
bail, unless his presence at the trial is specifically ordered by the court for purposes of identification.
The absence of the juvenile without justifiable cause at the trial of which he had notice shall be
considered a waiver of his right to be present thereat. When the juvenile under custody escapes, he
shall be deemed to have waived his right to be present in all subsequent hearing until custody over
him is regained;
(d) to have legal and other appropriate assistance in the preparation and presentation of his defense;
(e) to testify as a witness in his own behalf and subject to cross-examination only on matters covered
by direct examination, provided that the Rule on the Examination of a Child Witness shall be
observed whenever convenient and practicable. The juvenile shall not be compelled to be a witness
against himself and his silence shall not in any manner prejudice him;
(f) to confront and cross-examine the witnesses against him;
(g) to have compulsory process issued to secure the attendance of witnesses and production of other
evidence in his behalf;
(h) to have speedy and impartial trial, with legal or other appropriate assistance and preferably in the
presence of his parents or legal guardian, unless such presence is considered not to be in the best
interests of the juvenile taking into account his age or other peculiar circumstances;
(i) to appeal in all cases allowed and in the manner prescribed by law;
(j) to be accorded all the rights under the Rule on Examination of a Child Witness; and
(k) to have his privacy fully respected in all stages of the proceedings.
167
Ibid, s. 2(a).
166

242

F. WELFARE AND JUSTICE IN RHETORIC AND PRACTICE:


REFORMULATING THE YOUTH JUSTICE SYSTEM
In 2006, cognizant of the realities of children entangled with the youth justice system and taking
its cue from the legal shifts that had been taking place in the law since the 1990s, the Philippine
legislature enacted a comprehensive reformulation of the law governing youth justice policy. As
a result, the emerging paradigm in the youth justice system that was endorsed by the courts in
the 2002 SC Rules was enacted into legislation. This new law, which is still in force, deals with
the entire structure of child offending from prevention to actual entry and engagement with or
diversion from the criminal justice system to rehabilitation and reintegration. As a legislative
enactment (and not merely a court-promulgated rule), the Juvenile Justice and Welfare Act of
2006168 constitutes a major reform of youth justice policy in the country.
At the outset, the Juvenile Justice and Welfare Act of 2006 is based on an acknowledgement of
the realities of children in conflict with the law. The reform was prompted by numerous
comprehensive studies169 documenting the experiences of children within the youth justice
system which made it clear that a complete overhaul of the entire system of youth justice was
required. Highlighting the incongruence between rhetoric and practice, these studies revealed
serious flaws in the implementation of laws on juvenile justice as well as abusive practices and
attitudes of police officers and barangay170 officials towards children who have come into
conflict with the law.171 The punitive treatment that children were receiving clearly negated the
168

This law will be discussed in detail in the last section focusing on its participatory framework as a demonstration
of my argument that the law has, in fact, reframed the discourse of youth justice policy to move away from the
dominant understandings of welfare and justice.
169
Trinidad, supra note 1; Florence Martin and John Parry-Williams, The Right Not to Lose Hope: Children in
Conflict with the Law A Policy Analysis and Examples of Good Practice (London, UK: Save the Children UK,
2005); Save the Children UK, Breaking Rules: Children in Conflict with the Law and the Juvenile Justice Process
The Experience in the Philippines (Quezon City, Philippines: Save the Children UK, 2004) [Breaking Rules];
Children in Conflict with the Law in Metro Manila, supra note 117; Felisa Etemadi, et al, Children in Conflict with
the Law in Cebu: Profile and Experience with the Juvenile Justice Process (Quezon City, Philippines: Save the
Children UK, 2004); Mae Fe Ancheta-Templa, Understanding Children in Conflict with the Law: Contradictions
on Victimisation, Survivor Behaviour and the Philippine Justice System A Study of the Situation of Children in
Conflict with the Law in Davao (Quezon City, Philippines: Save the Children UK, 2004); Program on Psychosocial
Trauma and Human Rights UP Center for Integrative and Development Studies, Painted Gray Faces, Behind
Bars and in the Streets: Street Children and the Juvenile Justice System in the Philippines (Quezon City: UP CIDS
PST and Consortium for Street Children, 2003) [Painted Gray Faces].
170
The barangay is the smallest local government unit in the Philippines roughly equivalent to a village.
171
Painted Gray Faces, supra note 169 at 97.

243
supposed welfarist approach articulated in laws and policies. One study,172 for example,
graphically detailed the experiences of numerous children brought within the system as
expressed in their own words, highlighting the serious concerns with the existing system of
youth justice:
I got beaten up and they electrocuted my ass. The cell smelled so badly. I dont
know, if it smelled like shit or pee. You cant eat with that smell. I was in jail only
for two days. A policeman friend set me free. When I got arrested for vagrancy, I
got beaten up. They beat me up as soon as they arrested me. They hit me with the
butt of their guns and I was electrocuted. They placed bullets between my fingers
and squeezed it tight. The toilet was unbearable. The walls were dirty with graffiti.
A trash dumps better than prison. When you have to go, you use a tin can. You
could step on the urine-filled floor while eating.173

We were like pigs. The cell was very filthy. The women had a different cell, and the
men too. There were so many mosquitoes and even kittens inside. There is no toilet
inside the cell. There was some questioning before one is placed inside the cell.
When one is caught for robbery, he is beaten up, and when one is caught for
vagrancy straight to the cell. They never fed us. All of us in the cell were male, but
we were mixed in with the adults, each with different cases.174

Barangay policeman Donato, also the barangay captain, arrested me. They brought
us near the Day Care Center. There, they hit us with the butt of their guns. They hit
me with a dustpan. We got caught again in the Sandawa area. A policeman named
Lamping hit me with a piece of wood. When they were going to set us free, they hit
us again. We were in jail for a night. They told us that we could have our freedom if
we let them place their fingers inside our vaginas or let them fondle our breasts.175
These experiences unmistakably demonstrated that although welfarist provisions in laws and
policies had moved away from blame and punishment through such mechanisms as suspended
sentence and alternative forms of commitment, child offenders, continued to experience blame
and punishment. The abusive treatment that these children were receiving during arrest, while in
the process of trial, or even during rehabilitation reflects dominant constructions of children who
have to be taught, guided and controlled by attributing responsibility understood as laying
blame and imposing punishment.

172

Ibid.
Ibid at 99, Experience of David, male 15 years old.
174
Ibid at 103, Experience of Oscar, male 17 years old.
175
Ibid at 102, Experience of Dahlia, female 16 years old.
173

244
Another study176 even found that notwithstanding any proof of the commission of a crime,
arresting officers had justified punitive treatment of children because children deserve it; it
teaches children a lesson not to engage in criminal activities; and it instills discipline in them.177
In some provinces, cases had even been reported of children being placed in jail by their parents
to instill discipline and also to keep them safe from gang members.178 Furthermore, despite the
mandate of alternative forms of commitment, children were, in fact, being punished through
detention in deplorable circumstances from the moment they were introduced into the youth
justice system. It was not uncommon for children to be detained in police cells and jails for days
and even months upon their arrest, only to find their cases dismissed later on. These cases,179
involving mostly crimes against property (including theft and robbery),180 substance abuse and
violations of local ordinances and vagrancy, could take months even before the children were
charged in court, and much more time before their trial was concluded. While waiting for their
cases to be heard, children have remained in detention facilities in intolerable conditions:
Moreover, since most police stations had only one or two cells, if both males and
females are held, [children in conflict with the law] are kept in the cells together
with adults of the same sex. Aside from this, there were no police funds for food,
beddings, utensils and clothes so that without the gifts coming from relations,
friends and/or fellow inmates and sometimes the city social worker (CSW), the
children would go hungry. In addition, most cells are very cramped and
unsanitary.181
Even alternative commitment facilities were found to pose their own problems. Aside from the
limited number of these rehabilitation centers, studies revealed an absence of comprehensive
rehabilitation programs within these institutions.182 Furthermore, as found in one study:
[Within these facilities], the children were still deprived of their liberty and [these
facilities were] quite far from [the city]. As a result, the childrens parents and
friends seldom visited them. Some of the children even tried to escape, while others
wanted to go back to the jail because of the boredom they felt despite the routine. In
additionchildren who just arrived into the centres go through a period of from 3 to
176

Trinidad, supra note 1.


Ibid at 23.
178
Ibid at 24.
179
Breaking Rules, supra note 169 at 27.
180
Painted Gray Faces, supra note 169. It is illuminating to see the reasons of children for committing crimes
against property. Although there are economic reasons such as wanting to buy food and medicines for their families
or wanting to procure drugs or illegal substances, there are also non-economic pressures such as revenge against
those who stole from them and those that doubted their honesty in doing an honest trade.
181
Breaking Rules, supra note 169 at 31.
182
Painted Gray Faces, supra note 169 at 140.
177

245
14 days in an observation/isolation room. This is the same room where children
were also sent for punishment or disciplining. It is not very clear what the purpose
of this segregation was.Their being mixed with children who were there to be
punished further confuses the rooms purpose.183
Studies examining the Philippine system of youth justice have consistently pointed to the same
problems in the implementation of youth justice laws and policies. As such, the broader
protection envisioned by the expanded welfarist system of youth justice rooted in the Child and
Youth Welfare Code has instead exposed more children to blame and punishment. As found, for
example, in a study examining the rescue operations of street children:
Rescue operations are frequently carried out indiscriminately and for reasons other
than child protection. The best interests of the child are often secondary to other
concerns. Rescuers are frequently unclear about their objectives in conducting
rescue and therefore use inappropriate intervention techniques. This unnecessarily
criminalises, stigmatises and traumatises children.Often more than one objective
is present in a rescue operation and these are conflicting [such as] trying to
clean/beautify the city and provide children with appropriate social services.184
Activities implemented as part of rescue operations are often inappropriate or in
conflict with objectives [such as] removal against will, use of weapons, beating and
detention of children in the name of child protection.185
Against the backdrop of these harsh realities, the 2006 law fundamentally restructures the youth
justice system by placing the primary emphasis on keeping young offenders out of the criminal
justice system through mechanisms of prevention directed at at risk children,186 intervention
programs for offenders under the age of criminal responsibility, diversion for those who are of

183

Breaking Rules, supra note 169 at 34-35.


Scerri, supra note 128 at 144.
185
Ibid at 145.
186
Section 4(d) provides:
Child at Risk refers to a child who is vulnerable to and at the risk of committing criminal offenses
because of personal, family and social circumstances, such as, but not limited to, the following:
(1) being abused by any person through sexual, physical, psychological, mental, economic or any
other means and the parents or guardian refuse, are unwilling, or unable to provide protection for the
child;
(2) being exploited including sexually or economically;
(3) being abandoned or neglected, and after diligent search and inquiry, the parent or guardian
cannot be found;
(4) coming from a dysfunctional or broken family or without a parent or guardian;
(5) being out of school;
(6) being a streetchild;
(7) being a member of a gang;
(8) living in a community with a high level of criminality or drug abuse; and
(9) living in situations of armed conflict.
184

246
the age of criminal responsibility but who have committed less serious offences, and alternate
sentencing, all within a framework of restorative justice aimed at rehabilitation of the child
offender and reintegration within the community. As part of this package, the minimum age of
criminal responsibility has been raised to 15. Several of these provisions will be examined in
more detail in Section IV, which focuses on the ways in which the right of participation informs
the entire process put in place by this Act. The objective here is to identify, more generally, the
ways in which the 2006 law restructures the discourse of youth justice and transcends the
dichotomy between the welfare and justice approaches.
The title of the law itself the Juvenile Justice and Welfare Act of 2006 bears out the attempt
to merge the principles of both the welfare and justice approaches. The Act moves away from
the dominant understandings and the dichotomous polarization of welfare and justice and
instead adopts the fundamental values of both models with a clear focus on the context of the
child offender. Addressing the concerns of both approaches and the realities on the ground, the
law expresses a basic concern for the welfare of child offenders but at the same time
acknowledges responsibility within a system where context is essential and rights are
fundamental. In its Declaration of State Policy, the law unequivocally declares that it
recognizes the distinct circumstances of the child offender. However, it also recognizes a system
of justice whereby responsibility is attributed to children and legal rights are fully respected:
Pursuant to Article 40 of the United Nations Convention on the Rights of the Child,
the State recognizes the right of every child alleged as, accused of, adjudged, or
recognized as, having infringed the penal law to be treated in a manner consistent
with the promotion of the childs sense of dignity and worth, taking into account the
childs age and desirability of promoting his/her reintegration. Whenever
appropriate and desirable, the State shall adopt measures for dealing with such
children without resorting to judicial proceedings, provided that human rights and
legal safeguards are fully respected. It shall ensure that children are dealt with in a
manner appropriate to their well-being by providing for, among others, a variety of
disposition measures such as care, guidance and supervision orders, counseling,
probation, foster care, education and vocational training programs and other
alternatives to institutional care (emphasis added).187
Embedded within the law is an espousal of the welfare of child offenders articulated in the
language of the best interests of the child where youth justice policy considers the totality of
the circumstances and conditions which are most congenial to the survival, protection and
187

Juvenile Justice and Welfare Act of 2006, supra note 16, s. 2(d).

247
feelings of security of the child and most encouraging to the childs physical, psychological and
emotional development.188 Also pursuant to the philosophy of the welfare approach that
considers the circumstances of the child offender, the law devotes a great deal of attention to
community-based services which respond to the special needs, problems, interests and
concerns of children and which offer appropriate counseling and guidance to them and their
families.189
However, countering an intrusive and unaccountable welfare approach, the law is unequivocal
that no child shall be received in any rehabilitation or training facility without a valid order
issued by the court after a hearing for the purpose.190 In this respect, the law explicitly
acknowledges the discriminatory nature of status offenses191 ensuring a more accountable and
equitable system of youth justice. In fact, the law now specifically exempts all children from
prosecution for the crime of vagrancy and prostitution under Section 202 of the Revised Penal
Code;192 of mendicancy under the Mendicancy Law of 1978;193 and sniffing of rugby under
Presidential Decree No. 1619194 catch-all laws that were previously used in the sweeping and
intrusive welfarist approach of the state.
Alongside these welfarist values is the principle of responsibility. Clearly, the law does not
preclude the attribution of responsibility. In fact, the mechanisms and measures provided for in
this law are processes of determining the responsibility of child offenders albeit through
alternative, child-appropriate process[es]on the basis of his/her social, cultural, economic,
psychological or educational background without resorting to formal court proceedings.195
Thus, responsibility is understood within the framework of restorative justice which requires a
process of resolving conflicts with the maximum involvement of the victim, the offender and the
188

Ibid, s. 4(b).
Ibid, s. 19. These are broken down into: (a) Primary intervention includes general measures to promote social
justice and equal opportunity, which tackle perceived root causes of offending; (b) Secondary intervention includes
measures to assist children at risk; and (c) Tertiary intervention includes measures to avoid unnecessary contact
with the formal justice system and other measures to prevent re-offending.
190
Ibid, s. 45.
191
Ibid, s. 57 provides:
Any conduct not considered an offense or not penalized if committed by an adult shall not be considered an offense
and shall not be punished if committed by a child.
192
Ibid, s. 58.
193
Ibid.
194
Ibid.
195
Ibid, s. 4(i).
189

248
community.196 As such, the law espouses responsibility by [seeking] to obtain reparation for
the victim; reconciliation of the offender, the offended and the community; and reassurance to
the offender that he/she can be reintegrated into society.197
Equally important, within this new mix of welfare and justice, the law is unequivocal in its
recognition of the rights of children. Transcending the dominant discourse which associates
rights protection exclusively with a justice model focused on punishment, the 2006 law
mandates that childrens substantive and procedural rights be recognized and respected through
the entire period of engagement with the youth justice system.198 Finally, as will be examined in
196

Ibid, s. 4(q).
Ibid.
198
Ibid, s. 5 provides:
Rights of the Child in Conflict with the Law. Every child in conflict with the law shall have the
following rights, including but not limited to:
(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;
(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;
(l) 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.
As well, s. 21 provides:
Procedure for Taking the Child into Custody. From the moment a child is taken into custody, the
law enforcement officer shall:
197

249
more detail in Section IV, in addition to these specific rights, the childs right of participation is
a fundamental value that runs through the entire process.

(a) Explain to the child in simple language and in a dialect that he/she can understand why he/she is
being placed under custody and the offense that he/she allegedly committed;
(b) Inform the child of the reason for such custody and advise the child of his/her constitutional
rights in a language or dialect understood by him/her;
(c) Properly identify himself/herself and present proper identification to the child;
(d) Refrain from using vulgar or profane words and from sexually harassing or abusing, or making
sexual advances on the child in conflict with the law;
(e) Avoid displaying or using any firearm, weapon, handcuffs or other instruments of force or
restraint, unless absolutely necessary and only after all other methods of control have been
exhausted and have failed;
(f) Refrain from subjecting the child in conflict with the law to greater restraint than is necessary for
his/her apprehension;
(g) Avoid violence or unnecessary force;
(h) Determine the age of the child pursuant to Section 7 of this Act;
(i) Immediately but not later than eight (8) hours after apprehension, turn over custody of the child
to the Social Welfare and Development Office or other accredited NGOs, and notify the childs
parents/guardians and Public Attorneys Office of the child's apprehension. The social welfare and
development officer shal1 explain to the child and the childs parents/guardians the consequences of
the childs act with a view towards counseling and rehabilitation, diversion from the criminal justice
system, and reparation, if appropriate;
(j) Take the child immediately to the proper medical and health officer for a thorough physical and
mental examination. The examination results shall be kept confidential unless otherwise ordered by
the Family Court. Whenever the medical treatment is required, steps shall be immediately
undertaken to provide the same;
(k) Ensure that should detention of the child in conflict with the law be necessary, the child shall be
secured in quarters separate from that of the opposite sex and adult offenders;
(l) Record the following in the initial investigation: (1) Whether handcuffs or other instruments of
restraint were used, and if so, the reason for such; (2) That the parents or guardian of a child, the
DSWD, and the PAO have been duly informed of the apprehension and the details thereof; and (3)
The exhaustion of measures to determine the age of a child and the precise details of the physical
and medical examination or the failure to submit a child to such examination; and
(m) Ensure that all statements signed by the child during investigation shall be witnessed by the
childs parents or guardian, social worker, or legal counsel in attendance who shall affix his/her
signature to the said statement.
A child in conflict with the law shall only be searched by a law enforcement officer of the same
gender and shall not be locked up in a detention cell.
Finally, s. 22 provides:
Duties During Initial Investigation. The law enforcement officer shall, in his/her investigation,
determine where the case involving the child in conflict with the law should be referred.
The taking of the statement of the child shall be conducted in the presence of the following: (1)
child's counsel of choice or in the absence thereof, a lawyer from the Public Attorney's Office; (2)
the child's parents, guardian, or nearest relative, as the case may be; and (3) the local social welfare
and development officer. In the absence of the childs parents, guardian, or nearest relative, and the
local social welfare and development officer, the investigation shall be conducted in the presence of
a representative of an NGO, religious group, or member of the BCPC.
After the initial investigation, the local social worker conducting the same may do either of the
following:
(a) Proceed in accordance with Section 20 if the child is fifteen (15) years or below or above fifteen
(15) but below eighteen (18) years old, who acted without discernment; and
(b) If the child is above fifteen (15) years old but below eighteen (18) and who acted with
discernment, proceed to diversion under the following chapter.

250
G. DEBATES ON THE CURRENT LAW
WELFARE VS. JUSTICE AGAIN
Unfortunately, the current discourse on the Juvenile Justice and Welfare Act of 2006 has not
escaped the traditional polarized debates between the welfare and justice models. At the center
of the debates is the provision dealing with the minimum age of criminal responsibility. Under
this current law, a child 15 years or under is exempt from criminal liability. Also, a child over
15 but under 18 who acts without discernment is likewise exempt. The law provides in section
6:
Minimum 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.199
Critics of the present law use this provision to characterize the law as a triumph of the welfare
model that not only infantilizes children but also abets them in the commission of even more
crimes more serious crimes at that. It is within this context that those critics, proponents of the
justice model, oppose the supposed welfarist orientation of the law and argue for a system of
responsibilization and punishment.200
Because of the long history of welfarist objectives in youth justice laws and policies in the
Philippines, the current law is seen as a continuation of that tradition. In fact, the proponents of
the law suggest that child offenders are indeed victims. Consequently, in their view the law,
with its minimum age of criminal responsibility at 15, endeavors to save these children and not

199

Ibid, s. 6.
However, as clearly discussed in sub-section F above, the reality is that despite the rhetoric of welfare in youth
justice laws and policies, children brought within the youth justice system are treated punitively in accordance with
ideas rooted in a harsh justice model that insists on imposing individual responsibility, blame and punishment
especially incarceration. The opponents of the current law ignore the fact that despite the supposed welfarist
objectives of the law, child offenders have often been dealt with in an extremely and excessively punitive way.
200

251
treat them as hardened criminals but as victims of circumstances beyond their control.201 The
welfarist approach to youth justice policy is further suggested in the pronouncement of the law
that the State shall promote and protect the physical, moral, spiritual, intellectual and social
well-being of children.202 Thus, consistent the tradition of the welfare approach in which the
criminal behavior of the child is understood to be merely a manifestation of underlying
problems, the current law is understood to subscribe to the view that these children are
helpless and cannot be blamed for their actions for these are largely determined by adverse
circumstances.
Not surprisingly, the justice model gains momentum with the occurrence of highly publicized
youth crimes often described as a wave. With the emergence of the batang hamog203
phenomenon, discussed at the beginning of this Chapter, and a number of high-profile crimes
committed by children in recent years,204 the justice model proponents have focused their
argument on the unacceptable raising of the minimum age of criminal responsibility. This has
provided the platform for their discussion of the consequences of coddling cunning juvenile
delinquents, the softening of the justice system on criminality and the failure of the welfarist
model.
Echoing the belief that child offenders understand their actions and must take responsibility for
their behavior,205 opponents of the current Juvenile Justice and Welfare Act of 2006 object to the
201

Salaverria, supra note 19; See also Anne Marxze D. Umil, Lowering Age Discernment Wont Solve Juvenile
Delinquency Childrens Rights Groups, online: Bulatlat.com <http://bulatlat.com/main/2011/11/04/loweringage-discernment-wont-solve-juvenile-delinquencychildrens-rights-groups/>.
202
Juvenile Justice and Welfare Act of 2006, supra note 16, s. 2(a).
203
See Mariano, supra note 14.
204
See e.g. Karen Boncocan and Tonette Orejas, 13-Year-Old Boy Shoots Alleged Lover, Then Self, online:
Philippine Daily Inquirer <http://newsinfo.inquirer.net/61961/another-shooting-incident-in-sm-mall-branchreported>; Arnell Ozaeta, Teener to Go Scot-Free for Rape, Near-Killing, online: The Philippine Star
<http://www.philstar.com/nation/article.aspx?publicationsubcategoryid=67&articleid=730274>; Chito Aragon, Girl
Stabbed
by
Teen
She
Called
Prostitute,
online:
Philippine
Daily
Inquirer
<http://newsinfo.inquirer.net/310475/girl-stabbed-by-teen-she-called-prostitute>.
205
For example, in a proposed bill in Philippine Congress, when a child aged 12-15 is accused of murder, parricide,
infanticide, homicide, kidnapping and serious illegal detention, rape, robbery, destructive arson, carnapping, drug
trafficking or other offenses punishable by more than twelve 12 years, there is an automatic presumption that the
child acted with discernment. House Bill No. 6052 introduced by Representatives Salvador H. Escudero III,
Cinchona Cruz-Gonzales, Mel Senen S. Sarmiento, Jerry P. Treas, Mary Mitzi L. Cajayon, Roberto V. Puno,
Pablo P. Garcia, Rex Gatchalian, Karlo Alexei B. Nograles, Erico B. Aumentado, Anthony Rolando T. Golez, Jr.
Romeo M. Acop, Pedro P. Romualdo, Rene L. Relampagos, Rufus B. Rodriguez, Cesar V. Sarmiento, Jeci A.
Lapus, Carlo V. Lopez, Mercedes K. Alvarez, Maria Zenaida B. Angping, Susan A. Yap, Arnel M. Cerafica and

252
setting of the minimum age of criminal responsibility at 15, taking the position that is sets too
high a threshold. As one legislator who has proposed the lowering of the age of criminal
responsibility has argued: But it is a known medical fact, that at the age of 10 years old, a child
can already be mentally mature to distinguish and understand a right from a wrongful act and so
much so children ages 15 to 18 years old.206 It is argued that in setting the minimum age of
criminal responsibility at 15 in todays society, the law assumes that children of this time are
more ignorant (mangmang) and innocent (walang alam) that they cannot distinguish
between right and wrong.207 As one senator maintains, the reality is that children today know
so much more (mas marami ang alam) especially with the advent of technology.208 Such an
argument underscores the belief that more children at a younger age must be held responsible
for their acts. This, according to the justice proponents, can only be achieved by lowering the
minimum age of criminal responsibility. The insistence on a lower age indicates how their
arguments are heavily underpinned by responsibility that focuses on punishment.
Interestingly, those who are currently advocating a lowering of the minimum age of criminal
responsibility to the age of nine use very different arguments to justify the setting of the age this
low from those used in the past. Historically, the low age set for the commencement of
criminal responsibility was understood in terms of promoting childrens welfare, i.e., as a way to
bring more children into the welfarist domain of youth justice policy. For the current proponents
of a justice model, however, justifications for lowering the age of criminal responsibility lie in
the concepts of responsibilization and punishment. Part of the argument emphasizing
responsibility and punishment are calls to distinguish between serious and light offenses
specifically for those 15 years and below who are considered, in the current law, criminally
irresponsible regardless of the gravity of the offense. Insisted one commentator: [t]here is an
urgent need to amend that stupid law [Juvenile Justice and Welfare Act of 2006] that exempts

Marlyn L. Primicias-Agabas, An Act Strengthening the Juvenile Justice System in the Philippines, Amending for the
Purpose Republic Act No. 9344, Otherwise Known as the Juvenile Justice And Welfare Act Of 2006.
206
House Bill No. 3423 introduced by Rep. Anthony Rolando T. Golez. Jr., An Act Reinstating the Criminal
Liability of a Person of Children Under Eighteen Years of Age, Amending for the Purpose Republic Act No. 9344,
Known as the Juvenile Justice and Welfare Act of 2006 and for Other Purposes.
207
Transcript of Interview with Senator Chiz Escudero on Juvenile Justice Law, online: Senate of the Philippines
<http://www.senate.gov.ph/press_release/2011/0912_escudero1.asp>.
208
Ibid.

253
young criminals from punishment even if they have committed heinous crimes.209 As one
proposal for amendment of the current law warns:
On their own, teen-aged offenders are committing serious crimes like rape, murder
or robbery, with full knowledge that what they are doing are criminal and
reprehensible acts. They are abetted or even encouraged to do so because of the
impunity and protection that the law RA 9344 [Juvenile Justice and Welfare Act of
2006] so generously yet so undeservedly and unjustly grants to them.210
One lawmaker went as far as saying that some children even bring with them their birth
certificates which they readily show to the police every time they are caught in order to avoid
arrest and detention.211 With this attitude towards child offenders, the State must [then] be
protected from physically and mentally mature youth who are hiding from penal liability merely
due to their age.212 By punishing these child offenders, juvenile justice law will not only
protect the best interests of the child but also promote the general welfare and maintain peace
and order that everyone in this country rightly deserves.213
In the end, the objections to the current law represent more than criticisms of where the
minimum age of criminal responsibility has been set. They are, in reality, a critique of the
failed welfarist model of youth justice. It is being argued that the tradition of welfare has not
only been unsuccessful in preventing reoffending but has in fact been a failure in averting first
time offending. Even the current Director General of the Philippine National Police (PNP) was
quoted as saying: On the part of the PNP, we ourselves are aware that more children have been
involved in criminal incidents. We know that for a fact based on our statistics because it is the
PNP which investigates these incidents[.]214 Within the scheme of the welfare/justice divide,
this frustration against the welfare approach is framed as nothing works: that it was a waste of
209

Ramon
Tulfo,
That
Stupid
Pangilinan
Law,
online:
Philippine
Daily
Inquirer
<http://newsinfo.inquirer.net/62815/that-stupid-pangilinan-law>.
210
House Bill No. 2894 introduced by Rep. Pablo P. Garcia, An Act Amending Republic Act Numbered Nine
Thousand Three Hundred Fort-Four, Otherwise Known as the Comprehensive Juvenile Justice and Welfare Act of
2006, and for Other Purposes.
211
Ibid.
212
Senate Bill No. 43 introduced by Sen. Vicente C. Sotto III, An Act to Lower the Age of Exemption From
Criminal Responsibility Amending Sections 6, 20, 22, 23, 58 and 64 of R.A. 9344 Otherwise Known as The
Juvenile Justice and Welfare Act of 2006 and for Other Purposes.
213
House Bill No. 2611 introduced by Rep. Mary Mitzi Mitch L. Cajayon, An Act Restoring the Criminal
Responsibility of Children Under Eighteen (18) Years of Age, Amending Republic Act No. 9344, Otherwise Known
as the Juvenile Justice and Welfare Act of 2006 and for Other Purposes.
214
Aaron Recuenco, PNP Chief Favors Amending Law on Juveniles Charged with Crimes, online: Manila Bulletin
<http://www.mb.com.ph/node/336056/pnp-chief-favor>.

254
time and money to devote energy to the rehabilitative treatment of (young) offenders.215 Thus,
the current proposals advocate a get tough on crime stance by adopting a justice model
heavily underpinned by punishment. As explained in one proposal:
Almost everywhere, law enforcers have complained about their inability or
helplessness in coping with the rising, if not alarming, incidence of serious crimes
committed by teen-aged offenders who, under RA 9344, are immune from arrest and
detention. The worst part is that criminal syndicates and other criminal elements are
taking advantage of the law and are now using these juvenile offenders in actually
carrying out their nefarious criminal activities such as murder, robbery, drug
trafficking and other serious crimes (emphasis added).216
These debates once again frame the discourse of youth justice policy as a choice between the
dominant understandings of both the welfare and justice models. Thus, the choice merely
becomes between saving the innocents or controlling the little criminals. With these
conversations, the re-imagining of the fundamental values and principles of both approaches
undertaken by the Juvenile Justice and Welfare Act of 2006 is undermined and the law is
understood merely as a vehicle for one of these dominant approaches.
IV. THE JUVENILE JUSTICE AND WELFARE ACT OF 2006 AND THE EMERGING PARADIGM:
A FRAMEWORK OF PARTICIPATION
A. LIMITATIONS OF THE DISCOURSE ON WELFARE/JUSTICE DIVIDE
Because the debates on youth justice policy emphasize the contradictions and failures of each
dominant approach, discussions typically focus on how those models differ from each other.
Thus, intervention has been reduced to a choice of which approach works. But Smith warns us:
It is not just a matter of resolving practical disagreements over what works, as this masks
fundamental divisions over what is proper and reasonable in terms of responding to problematic
behavior by young people.217 The more complex question to ask really is what works for
whom in what circumstances and how?218 In addition, although there are clear and substantial
differences in ideologies and infrastructures between these models of youth justice policy, they
215

Muncie, supra note 3 at 262.


House Bill No. 2894, supra note 210.
217
Smith, supra note 31 at 258.
218
Muncie, supra note 3 at 278.
216

255
have a fundamental similarity that exposes their limitations. The most crucial common thread
between these approaches is how they both view children as objects.
For the welfare advocate, young people are not fully responsible for their acts because of social
constraints. Smith writes: social factors exercise an irresistible influence on what happens to
young people; that is, they are unable to act in their own right with any degree of freedom.219
Because of these vulnerabilities in the life of a child, young offenders have to be saved from a
criminal career. Children, as innocent, dependent and nave, are easily corrupted by evil
influences so there is a need to tightly regulate the way they live their lives. Thus, efforts are
directed at keeping children within the confines of a romantic and innocent childhood. This
means strict supervision of childrens leisure and recreation; regulation of social behavior;
eliminating harmful ideologies and preparing children to become useful and productive
citizens. In short, interventions grounded in a welfare model are aimed at defining,
rationalizing and regulating the dependent status of youth.220 Platt describes this child-saving
project:
If, as it was believed, criminals are conditioned by biological heritage and brutish
living conditions, then prophylactic measures must be taken early in life. We must
get hold of these little waifs that grow up to form the criminal element just as early
in life as possible, exhorted an influential child-saver. Hunt up the children of
poverty, of crime, and of brutality, just as soon as they can be reached. Efforts were
needed to reach the criminals of future generations. They are born to crime, wrote
penologist Enoch Wines, brought up for it. They must be saved.221
On the other hand, for the justice proponent, it is because the child is seen as self-determining
and responsible although negatively that the actions of child offenders must be controlled
and regulated. Smith explains:
Justice-based strategies attribute responsibility and autonomy to children who
offendbut they apply measures of punishment and control which by their nature
deny young people the opportunity to act independently or to demonstrate that they
can behave responsibly.222

219

Smith, supra note 31 at 258.


Platt, supra note 94 at 22.
221
Ibid at 16-17.
222
Smith, supra note 31 at 258.
220

256
When the justice model imposes responsibility and punishment on a child offender, it is driven
by the overarching shared assumption that left to their own devises children lack collective
responsibility, run wild and destroy each other.223 Thus, youth justice policy must impose a
more direct and repressive form of control. By targeting child offenders, youth justice policies
aim to restore these children to the true position of childhood. Punitive measures referred to as
the civilizing process of adult society224 will control these children from sink[ing] to
unknown depths of cruelty and individualism.225
The measures of punishment and control are imposed on the child not only as an offender, but
more so as a child who exceed[s] the limits of what it is to be a child.226 This implies that a
child offender responsibilized and punished under the justice model is, in fact, the reverse of
what we desire to see in childhood.227 The language of responsibility then really highlights
weakness, wrong-doing, dangerousness and impressionability228 viewed as inherent in
childhood.
Because both models see children as objects, they inevitably find it difficult to accept the idea of
children as active participants in the construction and determination of their own lives, the lives
of those around them and of the societies in which they live. While the welfare approach
addresses the need of children to be rescued, the justice model, on the other hand, tackles
the need of children to be controlled. But as Woodhead warns us:
Childrens needs have been constructed as part of a standardized model in which
childhood is a period of dependency, defined by protectionist adult-child
relationships in which adults are dominant providers and children are passive
consumers. This standardized model is underpinned by separation of young
humanity from later life-phases, as a distinctive status.229
223

Phil Scraton, Whose Childhood? What Crisis? in Phil Scraton, ed, Childhood in Crisis? (London: UCL
Press, 1997) at 168.
224
Ibid.
225
Ibid.
226
Jenks, supra note 34 at 126.
227
Harry Hendrick, Constructions and Reconstructions of British Childhood: An Interpretative Survey, 1800 to the
Present in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary Issues
in the Sociological Study of Childhood, 2d ed (London: Falmer Press, 1997) at 44.
228
Elizabeth Such and Robert Walker, Young Citizens or Policy Objects? Children in the Rights and
Responsibilities Debate (2005) 34:1 Journal of Social Policy 39 at 54.
229
Martin Woodhead, Psychology and the Cultural Construction of Childrens Needs in Allison James and Alan
Prout, eds, Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of
Childhood, 2d ed (London: The Falmer Press, 1997) at 78.

257
Whether youth justice policies have been based on care or control, welfare or justice, treatment
or punishment, they have reflected adult societys view of what is in the best interests of
children. By aiming to change children their circumstances or their behavior both
approaches apply adult standards to judge the quality of childrens lives and the nature of their
behavior.230
In both approaches, children are treated merely as objects, with the result that the welfare and
responsibility attributed to the child offender comes as an external imposition. The particular
circumstances or acts of the child offender that welfare and justice models respectively
proclaim to focus on are understood and appreciated based on a set of ideals about children and
childhood and not necessarily on how that particular child lives, experiences and understands
them. Muncie and Hughes call it a politics of adultism231 where policies are driven by
professional discourses of protection (but realized as surveillance), discipline (but realized as
subservience) and correction (but realized as punishment).232 Within such language, children
are considered outsiders, the other to adult essentialism.233 As such, the dominant models
which inform our understanding of youth offending and shape our interventions offer only
partial explanations, and therefore incomplete solutions.234 Largely absent from the discussions
is, in fact, the central focus of any youth justice policy the child, or more precisely, the voice
of the child.
Armed with such insight, one can see that the Juvenile Justice and Welfare Act of 2006 breaks
new ground by introducing a new participatory framework in dealing with child offenders, an
aspect of the law that has been largely overlooked.
B. RE-FRAMING THE DISCOURSE OF YOUTH JUSTICE POLICY
As has been shown above, the Juvenile Justice and Welfare Act of 2006 breaks down the rigid
230

Smith, supra note 31 at 258.


Muncie and Hughes, supra note 29 at 15.
232
Ibid.
233
Deena Haydon and Phil Scraton, Condemn A Little More, Understand a Little Less: The Political Context and
Rights Implications of the Domestic and European Rulings in the Venables-Thompson Case (2000) 27:3 Journal
of Law and Society 416 at 448.
234
Smith, supra note 31 at 259.
231

258
lines between the welfare and justice models and re-imagines their fundamental values and
principles within a framework that draws on the emerging paradigm of children and childhood
and that centrally focuses on the contextual realities of the child. By repositioning the child, the
law prioritizes childrens accounts and experiences, the meaning they invest in their acts and
their active participation in the process.235 This has opened up a critical space for the
participation of children within the youth justice system. Consequently, in accordance with the
general framework of the law, it is a fundamental policy to promote and protect the right of
children to participate within the youth justice policy. The law provides in its Declaration of
State Policies:
Proceedings before any authority shall be conducted in the best interest of the child
and in a manner which allows the child to participate and to express himself/herself
freely. The participation of children in the program and policy formulation and
implementation related to juvenile justice and welfare shall be ensured by the
concerned government agency (emphasis added).236
Within the structure of the Juvenile Justice and Welfare Act of 2006, which has been outlined in
Section III, the theme of participation runs through the entire process of engagement of the child
with the youth justice system. For example, upon the turnover of the child to a social welfare
and development officer after apprehension, said officer shall immediately explain to the child
and the childs parents/guardians the consequences of the childs act with a view towards
counseling and rehabilitation, diversion from the criminal justice system, and, reparation, if
appropriate.237 The child is made aware of the circumstances of the situation; the options
available; and the consequences of such options. This treats the child as an individual who is
capable of forming an opinion and not merely an object of care or control. By keeping the child
thoroughly informed, such child becomes more involved and invested in the process that he/she
is entering making it more meaningful.
The most significant innovation that the law has introduced into the youth justice system is the
institutionalization of a participative framework within the concepts of intervention for those
who are below the age of criminal responsibility, diversion for children considered criminally
responsible and rehabilitation and reintegration for all child offenders. Any child brought within
235

Scraton and Haydon, supra note 59 at 325.


Juvenile Justice and Welfare Act of 2006, supra note 16, s. 2(b).
237
Ibid, s. 21(i).
236

259
the ambit of the youth justice system is given the opportunity to participate in the formulation
and implementation of intervention, diversion, rehabilitation and reintegration measures and
programs. Such participation is understood as the respect and recognition of their rights, realities
and relationships.
Intervention programs are for children below the minimum age of criminal responsibility (set at
15). Because these children are considered criminally irresponsible, they are released to their
parents, guardians or other responsible individual or institution but with an appropriate
intervention program designed to address issues that caused the child to get entangled with the
youth justice system in the first place. These intervention mechanisms take the form of an
individualized treatment programs.238 Within the framework of the law, these programs are
community-based services that respond not only to the needs of children but also their
problems, interests and concerns. Expanding the discourse of needs to include issues and
concerns relevant to the children themselves not only recognizes the need for participation but,
in fact, also provides an opportunity for child offenders to participate within youth justice
policies. Thus, intervention programs are not only unidirectional but also multi-level. 239
In fact, in these intervention programs, the law engages the various institutions within
the community including the family, 240 the educational system 241 and the local
238

Ibid, s. 4(l).
Ibid, s. 19 provides:
Community-based programs on juvenile justice and welfare shall be instituted by the LGUs [local
government units] through the LCPC [Local Councils for the Protection of Children], school, youth
organizations and other concerned agencies. The LGUs shall provide community-based services
which respond to the special needs, problems, interests and concerns of children and which offer
appropriate counseling and guidance to them and their families. These programs shall consist of
three levels:
(a) Primary intervention includes general measures to promote social justice and equal opportunity,
which tackle perceived root causes of offending;
(b) Secondary intervention includes measures to assist children at risk; and
(c) Tertiary intervention includes measures to avoid unnecessary contact with the formal justice
system and other measures to prevent re-offending.
240
Ibid, s. 12 provides:
The Family. The family shall be responsible for the primary nurturing and rearing of children
which is critical in delinquency prevention. As far as practicable and in accordance with the
procedures of this Act, a child in conflict with the law shall be maintained in his/her family.
241
Ibid, s. 13 provides:
The Educational System. Educational institutions shall work together with families, community
organizations and agencies in the prevention of juvenile delinquency and in the rehabilitation and
reintegration of child in conflict with the law. Schools shall provide adequate, necessary and
individualized educational schemes for children manifesting difficult behavior and children in
conflict with the law. In cases where children in conflict with the law are taken into custody or
detained in rehabilitation centers, they should be provided the opportunity to continue learning under
239

260
governments. 242
The mechanism of intervention signifies that for children below the age of criminal
responsibility who are accused of or recognized as having infringed the penal law, exemption
from criminal responsibility does not necessarily mean the absence of accountability for ones
acts. Before such a child is released to the parents, guardians or nearest relative, the local social
welfare and development officer shall determine the appropriate intervention program in
consultation with the child and the person having custody over the child.243 This responds to the
criticisms that the law simply exempts from criminal liability too many children with a
minimum age of criminal responsibility set too high. The provisions on intervention allay such
fears because even child offenders below the minimum age of criminal responsibility are not
allowed to simply turn their backs on responsibility but are rather subject to intervention
programs.244
Significantly, in this mechanism of intervention, the local social worker shall engage the active
participation of the child, in accordance with his/her evolving capacity, and his/her parents or
guardians in the formulation and the implementation of the intervention programs (emphasis
added).245 Thus, the process is not a mere determination on the part of the social worker.
Instead, the circumstances considered in arriving at an intervention program are given a more
nuanced appreciation with the involvement of the child. The law specifically lists these
considerations, quoted as follows:
(a) circumstances of the child (e.g., age, level of development, educational
background);
(b) needs of the child if specially disadvantaged, i.e., street child, or child with
mental or physical difficulties;
an alternative learning system with basic literacy program or non-formal education accreditation
equivalency system.
242
Ibid, s. 15 provides for the establishment and strengthening of Local Councils for the Protection of Children
(LCPC) which serves as the primary agency to coordinate with and assist the [local government unit] concerned
for the adoption of a comprehensive plan on delinquency prevention, and to oversee its proper implementation.
243
Ibid, s. 20.
244
Juvenile Justice and Welfare Council, Council Resolution No. 4 (2006) Rules and Regulations Implementing
Republic Act No. 9344, rule 37 [Rules and Regulations of the Juvenile Justice and Welfare Act]. These may include
any or a combination of the following: (a) Counseling; (b) Peer counseling and life skills training and education; (c)
Provision of support services to the family, e.g., parent effectiveness service, livelihood programs, skills trainings,
etc.; (d) Referral to other agencies for appropriate services, e.g., education, health, skills training, etc.; and (e)
Access to child and youth organizations in the community, such as but not limited to the Sangguniang Kabataan.
245
Ibid, rule 36.

261
(c) family and social background of the child;
(d) influence of the family and environment on the growth of the child;
(e) ability and willingness of the parents or guardians to guide and supervise the
child;
(f) nature and circumstances of the offense charged;
(g) availability of community-based programs for intervention and prevention; and
(h) safety and security of the child.246
Equally significant, the law also utilizes the concept of diversion for children entering the youth
justice system who are within the age of criminal responsibility and who are alleged to have
committed less serious crimes. Diversion refers to an alternative, child-appropriate process of
determining the responsibility and treatment of a child in conflict with the law on the basis of
his/her social, cultural, economic, psychological or educational background without resorting to
formal court proceedings.247 Diversion essentially involves individualized courses of action
where the responsibility and treatment of a child in conflict with the law are determined. Such a
process can occur at all levels248 of the proceedings before arraignment.249 Depending on the
level of the proceedings at which diversion takes place, these processes include mediation,
family conferencing and conciliation. What is essential is that diversion adopts indigenous
modes of conflict resolution in accordance with the best interest of the child with a view to
accomplishing the objectives of restorative justice and the formulation of a course of action
embodied in a diversion program.
The law clearly repositions children and recognizes their active involvement in this process of
diversion. In fact, at the beginning of the process where the suitability of diversion is just being
246

Ibid.
Juvenile Justice and Welfare Act of 2006, supra note 16, s. 4(i).
248
Ibid, s. 24 provides:
Diversion may be conducted at the Katarungang Pambarangay, the police investigation or the
inquest or preliminary investigation stage and at all 1evels and phases of the proceedings including
judicial level.
Furthermore, s. 23 provides:
Diversion at these stages are conducted by the law enforcement officer or Punong Barangay with the
assistance of the local social welfare and development officer or other members of the LCPC [Local
Councils for the Protection of Children].
249
Diversion may also be done at the judicial level. The process at this stage was later clarified in Revised Rule on
Children in Conflict with the Law, supra note 17, ss. 31-33. The suitability of diversion shall be determined by a
Diversion Committee composed of the Branch Clerk of Court as chairperson; the prosecutor, a lawyer of the
Public Attorneys Office assigned to the court, and the social worker assigned by the court to the child, as members
before arraignment. Pending the determination of diversion by the Committee, the court shall release the child on
recognizance to the parents, guardian or custodian, or nearest relative; or if this is not advisable, commit the child to
an appropriate youth detention home or youth rehabilitation center which shall be responsible for the presence of
the child during the diversion proceedings.
247

262
determined, the law already insists on the participation of children when it mandates authorities
to involve the child expressed in the duties herein quoted:
(1) explain to the child and his/her family the objective of the diversion proceedings,
the value of diversion and the consequence of not undergoing diversion.
(2) ask the child of the circumstances of the offense, the motives or purpose of the
offense and the factors that led the child to commit the offense.
(3) ask the child of his/her personal circumstance including his/her parents and
family, his/her peers and educational status.
(4) make the child in conflict with the law understand the consequences of his/her
actions and the corresponding responsibilities.
(5) ensure that the child understands and realizes his/her accountability, be
remorseful of his/her actions and takes on the responsibility in repairing the harm
done in lieu of filing a formal case in the court.250
Once diversion is deemed appropriate, the processes of mediation, family conferencing,
conciliation251 and other indigenous modes of conflict resolution252 are embarked on within an
understanding of restorative justice, which the law explicitly endorses as an operative principle
in all laws, policies and programs relating to the youth justice system.253 Restorative justice is
defined in the law as:
[A] principle which requires a process of resolving conflicts with the maximum
involvement of the victim, the offender and the community. It seeks to obtain
reparation for the victim; reconciliation of the offender, the offended and the
community; and reassurance to the offender that he/she can be reintegrated into
society.254
Similarly, Bazemore and Schiff describe restorative justice as involving:
an emphasis on the offenders personal accountability by key participants; and
an inclusive decision-making process that encourages participation by key
participants; and
the goal of putting right the harm that is caused by an offense.255
250

Rules and Regulations of the Juvenile and Justice Welfare Act, supra note 244, rule 47(a).
Juvenile Justice and Welfare Act of 2006, supra note 16, s. 25.
252
Ibid, s. 23.
253
Ibid, s. 2(f).
254
Ibid, s. 4(q).
255
Gordon Bazemore and Mara Schiff, Juvenile Justice Reform and Restorative Justice: Building Theory and
Policy from Practice (UK: Willan Publishing, 2005) at 32.
251

263
Under a restorative justice framework, victims, offenders and communities have the opportunity
for active involvement in the justice system as early and as fully as possible. It emphasizes the
value of participation, empowerment, communication, dialogue and negotiated agreements.256
Crawford and Newburn write:
One intended consequence of party-centred control and participation is to restore
responsibility to the participants, in the belief that this will encourage offenders to be
more accountable for their actions and to encourage others to take responsibility for
ensuring the successful implementation of any agreement reached. Discussion of the
consequences of offences is seen as a more powerful way of communicating their
gravity to offenders in a way that brings home their impact on victims. A process
that treats people with respect and encourages their empowerment, it is believed, will
be more legitimate in the eyes of those participating, encourage a more general
respect for the law and understanding of the consequences of individual actions upon
others.257
Because the diversion proceeding involves children in the process, it accords full respect for the
individual characteristics and the peculiar circumstances of the child offender. The childs
feelings and views are significantly relevant in the process. With the active participation of
children, they are recognized as providers of knowledge and information rather than as passive
recipients and as oppressed victims of adult power.258 In formulating an individualized
diversion program for the child, the law provides for considerations quoted as follows:
(1) the childs feelings of remorse for the offense he/she committed;
(2) the parents or legal guardians ability to guide and supervise the child;
(3) the victims view about the propriety of the measures to be imposed;
(4) the availability of community-based programs for rehabilitation and reintegration
of the child; and
(5) record of prior offenses, if any (emphasis added).259
Accordingly, unlike the understanding of responsibility as blame and punishment in the
dominant approach, in this system, responsibility is not imposed on the child. Rather, it is
engaged and taken on. As such, the ensuing diversion program is neither a paternalistic nor
punitive response as understood within the dominant models of youth justice. Reflecting a
reformulated understanding of responsibility that moves away from punishment, the law
256

Adam Crawford and Tim Newburn, Youth Offending and Restorative Justice: Implementing Reform in Youth
Justice (UK: Willan Publishing, 2003) at 22.
257
Ibid at 23.
258
Muncie and Hughes, supra note 29 at 15.
259
Rules and Regulations of the Juvenile and Justice Welfare Act, supra note 244, rule 49(a).

264
considers alternative outcomes embodied in diversion programs quoted herein:
(a) restitution of property;
(b) reparation of the damage caused;
(c) indemnification for consequential damages;
(d) written or oral apology;
(e) care, guidance and supervision orders;
(f) counseling for the child in conflict with the law and the childs family;
(g) attendance in trainings, seminars and lectures on:
(i) anger management skills;
(ii) problem solving and/or conflict resolution skills;
(iii) values formation; and
(iv) other skills which will aid the child in dealing with situations which can
lead to repetition of the offense;
(h) participation in available community-based programs, including community
service; or
(i) participation in education, vocation and life skills programs.
xxx
(b) confiscation and forfeiture of the proceeds or instruments of the
crime;
xxx
(b) written or oral reprimand or citation;
(c) fine;
(d) payment of the cost of the proceedings; or
(e) institutional care and custody.260
For those outside of these diversion proceedings and found criminally responsible by the court,
the law mandates an automatic suspension of sentence without need of application.261 The law
then provides for mechanisms to impose appropriate disposition measures for these child
offenders.262 Ultimately, all these mechanisms and procedures of intervention, diversion and
disposition are undertaken with the objective of rehabilitation and reintegration. These
objectives are significant because they reframe the system of youth justice as a recognition and
respect of the rights, realities and relationships of children. Thus, instead of unbridled
impositions on children characterized as either curative or punitive, the law pushes for a system
that is relevant and meaningful to the lives of children. This is demonstrated with the laws

260

Juvenile Justice and Welfare Act of 2006, supra note 16, s. 31.
Ibid, s. 38.
262
Ibid.
261

265
holistic approach with a strong emphasis on community-based programs. As such, the youth
justice system does not aim to stigmatize the realities of child offenders rather it aims to
prevent disruption in the education or means of livelihood of the child in conflict with the law
in case he/she is studying, working or attending vocational learning institutions.263 Equally
important, the system respects the relationships of children so that the law acknowledges that
the youth justice system must prevent separation of the child in conflict with the law from
his/her parents/guardians to maintain the support system fostered by their relationship and to
create greater awareness of their mutual and reciprocal responsibilities264 and facilitate the
rehabilitation and mainstreaming of the child in conflict with the law and encourage community
support and involvement.265
The introduction of a space for the participation of children is cognizant and respectful of the
relational connections that children maintain and establish within their lives and communities.
This very much represents the indigenous philosophy of kapwa where there is the unity of the
self with others. This implies that relationships do not merely involve dealing with the
other, but rather, they involve connecting with ones identity. Thus, it is a powerful legal and
moral concept with which to reconstruct our understanding of the youth justice system.266 In
fact, more general arguments have been put forward in the Philippines that offending, especially
when committed by children, should be understood as a break in relationships. As borne out by
the work of the Free Rehabilitation, Economic, Education and Legal Assistance Volunteers
Association, Inc. (FREELAVA), an organization pioneering in community-based diversion
programs in the Philippines:
Crime is fundamentally a violation of people and interpersonal relationships. The
crime committed has breached the relationship between the offender, the victim and
the community where the crime occurred. The primary victim is the most directly
affected by the offence but others, such as the family members of the victim and
offender, witnesses, and members of the affected community, are also victims. Since
crime has created an imbalance in the community (e.g. fear, distrust, anger), there is
the need to restore and address the relationship affected by the crime. The victim,
offender and the affected community, therefore, became the key stakeholders in
justice. A restorative justice process maximises the input and participation of these
263

Ibid, s. 54.
Ibid.
265
Ibid.
266
See e.g. Indigenous Administration of Justice and its Impact on the Protection of Children: The TagabawaBagobo and Subanen Experience (Quezon City, Philippines: Save the Children UK, 2006).
264

266
parties especially the primary victim as well as the offender in the search for
restoration, healing, responsibility and prevention. The roles of these parties will
vary according to the nature of the offence as well as the capacities and preferences
of the parties (emphasis added).267
Seen in this light, youth justice policy becomes more than an issue of cure, blame or
punishment. It becomes a participative tool for those engaged in reconnecting and reestablishing relationships. The current law unequivocally articulates a framework of
participation in which the vital and active engagements of the child offender in youth justice
policy are recognized and respected. Children are contextualized within their environments
and different discursive practices [now] produce different childhoods, each and all of
which are real within their own regime of truth.268 Thus, there is neither a real child nor
an authentic childhood experience. Rather, the law is more receptive and sensitive to the
validity of the experiences and actions of each child. As well, engaging the participation of
children within the process encourages them to take ownership of their actions and realize
accountability. As Smith writes: responsibility as a concept and responsibilisation as a
form of practice can and should be contrasted to those of blame and punishment.269 With
this understanding, youth justice policy is able to break away from the confining victimvillain construction of children that evokes either a child-saving or child-controlling
response.
Through the processes and mechanisms introduced in the law, youth justice policy is steered
away from the restrictive choice between welfare and justice approaches. They, in fact, offer
a new platform for youth justice policy by opening a space for children to participate in
addressing the offense, the offending behavior and the suitable response. In this manner, the
child is not merely an object of the youth justice system. Rather, the child becomes an active
participant in the processing not only of the event the offense, the offending behavior and
circumstances leading to and surrounding it but also of the goal of re-establishing the
connections severed by such event.

267

Back on Track: Making Community-Based Diversion Work for Children in Conflict with the Law A
Documentation of FREELAVAs Experience in Cebu City, Philippines (Quezon City, Philippines: Save the
Children UK, 2005) at 36-37.
268
Prout and James, supra note 64 at 26.
269
Smith, supra note 31 at 260.

267
V. THE WAY FORWARD:
GUARDED OPTIMISM
Following a legal regime that had been in place for decades, the Juvenile Justice and Welfare
Act of 2006 introduced a transformative framework of youth justice policy that allows the
system to acknowledge and respect the rights, realities and relationships of children. The law is
a judicious attempt to reformulate the values of both the welfare and justice models so that the
rhetoric of youth justice is steered away from the traditional debates focused on the
welfare/justice divide and the implementation of the law genuinely reflects its objectives.
However, the law faces an arduous task. It has been in existence for only a few years and has
neither been fully appreciated for the participatory framework it introduced nor even fully
implemented. If the current debates surrounding the law are any indication, the participatory
framework is being overlooked, raising concerns that the youth justice system is still tied to the
previous framework which confined youth justice policy to a choice between the two
dichotomous dominant models. Thus, despite the adoption in the current law of a framework
reflecting the emerging paradigm, the youth justice system is still understood in terms of the
previous approach of either rescue or control.
Equally challenging is the non-implementation of the law on the ground. In fact, funds for the
implementation of the law were only released in 2011, five years after the law came into
effect.270 The way in which children are being dealt with by the youth justice system in the few
years that the law has been in effect evidences this non-implementation. Because of the nonimplementation of the current law, children in conflict with the law are still treated as little
criminals who must be made responsible for their misdeeds through a punitive system. They
are still arrested and taken into custody using force and intimidation. They are even incarcerated
with adults while in custody.271 Those children brought to alternative facilities experience the
same punitive treatment. Many of these youth homes retain the structure and appearance of a

270

See Senator Kiko Pangilinan Welcomes Release of P50m for Proper Implementation of Juvenile Justice Law,
online: Senate of the Philippines <http://www.senate.gov.ph/press_release/2011/0215_pangilinan2.asp>.
271
Jessica Knowles, Still Behind Bars: Child Incarceration and Juvenile Justice Policy in the Philippines, online:
Peoples
Recovery,
Empowerment
and
Development
Assistance
(PREDA)
Foundation
<http://www.preda.org/en/wp-content/uploads/2010/07/still-behind-bars.pdf> at 33.

268
jail, including holding cells with bars.272 Thus, children report of their experiences in these
facilities: they are depressed, scared, anxious and eager to return home to their families.273 As
found further:
Diversion is rarely used and conditions in detention centers are worsening, and they
are becoming more overcrowded by the day. Children are subjected to violence,
both from guards, and by fellow inmates, without intervention from the authorities.
The educational welfare of the children is more often than not neglected. The
nutritional and health needs are left wanting.274
Despite these constraints in understanding and implementation, some policymakers are already
up in arms against the current law. One legislator even describes this law as one of those laws
that looks good during its passage but turns out to be prejudicial and detrimental.275 But what is
the prejudice being referred to? Is society prejudiced because children seemingly escape
punishment or because adults simply lose control over the lives of their children? Being
pulled back into the previous system of rhetoric and reality misleads us into believing that the
true measure of the success of the law is how it has either saved our children or controlled them.
Because the dominant models of youth justice policy rely on universalized notions of the child
and an authentic childhood experience, child offenders caught in this system continue to be
marginalized. Worse, they are exposed to even more serious forms of harm. They become the
other (not only in relation to adults but also against the normal child) whose childhood
needs to be restored. As Smith correctly argues:
We have seenthat there is a substantial gulf between their [young people] lives and
circumstances, on the one hand, and the ways in which they are stereotyped and dealt
with by the justice system, on the other. What we should be seeking is not to modify
this system, or simply to limit the damage caused, but rather to promote forms of
practice and policy change which will acknowledge, take account of, and respond
positively to young people in light of their backgrounds and experience.276
The current law has laid down the forms of practice and policy changes that Smith so keenly

272

Ibid at 37
Ibid at 35
274
Report on the Detention of Children and Lapses in the Implementation of the Comprehensive Juvenile Justice
System and Welfare Act of 2006 (RA 9344) (10 December 2008), online: Peoples Recovery, Empowerment and
Development
Assistance
(PREDA)
Foundation,
<http://www.preda.org/main/work/child%20rescue/rep121008.html> at 8.
275
House Bill No. 2894, supra note 210.
276
Roger Smith, Doing Justice to Young People: Youth Crime and Social Justice (Oxon: Willan Publishing, 2011)
at 169.
273

269
seeks. Indeed, for too long, the youth justice system has ignored children and has eroded that
space where children can be children not according to adult standards, but as who they really
are. Respecting that space simply means respecting a childs sense of dignity and worth and that
articulates genuine justice. Ultimately, the Juvenile Justice and Welfare Act of 2006, if taken
seriously, will make a real difference to childrens lives.

270
CONCLUSION
What childhood is and who children are
depend not only on where one looks but
also on the lens through which the gaze is
directed.1
The Philippines is a child-oriented society and one cannot doubt the attention given to children.
As keenly observed by Guthrie and Jacobs: Filipinos have many children, they watch them
carefully, and they love to talk about them. It is in many senses a society which takes great pride
in its children.2 Sociological and anthropological studies, in fact, confirm how the child in
Philippine society is much desired, wanted and enjoyed.3 Even the framers of the Constitution,
the fundamental law of the land, acknowledge how a major concern for Filipinos is their
children and their childrens welfare.4 Given this environment, the thesis set out to critically
examine how this concern for children has been translated into Philippine laws and policies,
specifically those that relate to the main contexts that children navigate. More importantly, the
thesis has explored how the Philippine legal system has defined children and childhood and
what this has meant for the recognition and respect of their rights, realities and relationships.
The four sites that are the subject of the four central chapters of this research the family, the
school, the workplace and the youth justice system are contexts where we can manifestly see
the lives of children unfold. These areas represent the sites where not only the realities of
children are lived and experienced but also where laws and policies have had a tremendous
impact on the lives of children. In looking at these four sites the thesis has taken as its starting
point that legal regulation of children shows the changing assumptions, interests and agendas
involved in defining children and childhood and that these definitions have in turn shaped the
material experiences of children.

Allison James, Understanding Childhood From an Interdisciplinary Perspective in Peter Pufall and Richard
Unsworth, eds, Rethinking Childhood (New Brunswick, New Jersey: Rutgers University Press, 2004) at 25.
2
George Guthrie and Pepita Jacobs, Child Rearing and Personality Development in the Philippines (University
Park: Pennsylvania State University Press, 1966) at 1.
3
See e.g. Felipe Landa Jocano, Filipino Social Organization: Traditional Kinship and Family Organization (Metro
Manila, Philippines: Punlad Research House, 1998). See also Felipe Landa Jocano, Growing Up in a Philippine
Barrio (New York: Holt, Rinehart and Winston, Inc., 1969).
4
Joaquin Bernas, SJ, The Intent of the 1986 Constitution Writers (Quezon City: Rex Bookstore, 1995).

271
Any exploration of issues involving children is always difficult as the subject, more often than
not, becomes very personal. Because children are believed to carry the burden of representing
the values that society holds, children bring with them a part of us just as much as we bear a
part of them. On the one hand, this us/them distinction has driven much of the dominant
discourse on children where they are constructed as the other a clear opposition to what is
desirable, i.e. rational adults characterized as independent, mature and competent. But at the
same time, this being a part of each other has also advanced an emerging paradigm where the
exploration of childhood involves a shift in how we recognize the personhood of children; how
we acknowledge their experiences; and how we respect and understand the relationships that
they build and form.
In its exploration of the Philippines, the thesis has shown a legal system that is heavily
immersed in the dominant paradigm of children and childhood, but at the same time concretely,
if hesitantly, attracted to an emerging paradigm. This dichotomy of legal frameworks that deal
with the status, conditions and circumstances of children in the family, the educational system,
the work environment and the youth justice system has highlighted not only the distinctive
position of children in the Philippines but also an intricate intersection between the countrys
colonial history and its indigenous traditions.5 The more than 400 years of colonial rule has
brought with it particular Western understandings of children and childhood rooted in the
dominant discourse. In particular, childhood is romanticized as a stage of innocence and
vulnerability where children are rendered as immature adults in the making, captured and
propelled by an inevitable telos of cognitive, physical, emotional and social development
towards some idealised and imagined end.6 Such an understanding has legitimized a system
based solely on the rhetoric of rescue and/or control where the child is viewed as a dependent
5

See e.g. Guthrie and Jacobs, supra note 2 at 84-85 who argue that colonial particularly American
constructions of childhood cloud rather than clarify understandings of a Filipino child. They write: If we apply
American concepts to the Philippines, we are obliged to conclude that the Filipino is very dependent. He is willing
and eager to receive help from his relatives and friends. He does not particularly aspire to be on his own and often
seeks the help and cooperation of others in activities which he could carry out himself. But American concepts
break down at this point because dependency is not the problem for the Filipino that it is for the American. The
concept of dependency with its connotation of conflict and feelings of inadequacy clouds rather than clarifies our
understanding of a Filipino childs developing pattern of relationships with older people. The pattern is different,
with different ideals, different goals, and a different product in adulthood. Instead of dependency, we should
consider closeness, cooperation, respect and duty. Giving and receiving help are important interpersonal encounters
in the Philippines at all ages. The Philippine ideal is not self-sufficiency and independence but rather familysufficiency and a refined sense of reciprocity.
6
Catherine McDonald, The Importance of Identity in Policy: The Case For and Of Children (2009) 23:4 Children
and Society 241 at 244.

272
and passive other.
However, despite the presence of the dominant discourse, the Philippine legal system has also
been drawn to an emerging paradigm that re-imagines childhood and repositions children in the
contexts where they live and experience their realities. One of the central arguments of the
thesis, which explains this attraction is that the emerging paradigm resonates with deeply held
indigenous relational values that emphasize ones connection to the other. Within the
indigenous value of relational interdependency, the child is acknowledged to share in reciprocal
responsibilities expressed through such ideals as closeness, cooperation, respect and duty. These
indigenous expressions are, in fact, a recognition of the participation of children. Just as the
emerging paradigm reconstructs notions of children and childhood perpetuated by the dominant
discourse, the indigenous framework, in turn, re-envisages childhood as a process within a
network of relational interdependencies and not simply as a state of dependency or a stage
towards an idealized end. Within such a re-imagining of childhood, children are consequently
seen as active participants in reciprocal and interdependent responsibilities. This participation of
children, as the thesis argues, represents the recognition and respect of the childs rights,
realities and relationships.
In each of the four contexts examined in this study, the thesis first looks at the definitions and
manifestations of both the dominant discourse and the emerging paradigm. It then explores how
these are expressed, if at all, in Philippine laws and policies and how they shape the discourse of
children and childhood and the corresponding engagements of children. The thesis then
presents a contextualized understanding of the emerging paradigm in each chapter using
indigenous relational values to recognize and respect a more inclusive and meaningful
participation of children.
I. THE DOMINANT DISCOURSE AND ITS PROFOUND INFLUENCE
The thesis has explored how a dominant discourse of children and childhood allows children to
be defined not based on their existing identities as manifested in their capacities, experiences
and realities but on who (the child) and what (childhood) they represent. This dominant
discourse is driven by deterministic and romantic notions that see childhood as a stage of

273
innocence set aside for growth and play. As such, children are simply viewed as dependent and
passive objects. Consequently, the actual engagements of children are obscured and minimized
and their opportunities for participation are limited. As demonstrated in this thesis, there has
been a long history of the dominant discourse in the Philippines. In the familial context, the
dominant discourse has been perpetuated through the legal concept of parental authority
whereby parents exercise control over their children. The concept was introduced during the
Spanish regime based on the Roman law concept of patria potestas and has since sanctioned the
adultist socialization function of the family according to which the child is the sole family
member upon whom familial, particularly parental, influence is exerted.
Similarly, in the educational context, laws and policies have been heavily influenced by the
socialization function of education to the exclusion of children. This approach was originally
based on the American system of education introduced in the Philippines in the early 1900s that
was highly centralized for practical and fiscal reasons and that was aimed at developing
rational and independent citizens.7 Such a system established the overarching authority of
educational institutions and the view that children are simply non-citizens and non-adults who
need education to develop, improve and grow-up into both citizenship and adulthood.
In the labor context, the legal and policy frameworks in the Philippines saw a steady progression
from regulation of child work to its prohibition, confirming a norm of childhood characterized
by innocence, dependency, play and schooling. Such a shift in approach was originally triggered
by the national campaign against child work burgeoning in the United States, the colonial
authority at that time. Thus, laws in the U.S. such as those banning children under a specific
age from working in factories, restricting hours of work, requiring documentation of age for
child workers, and strengthening compulsory school attendance shaped the legal
understanding of child work in the Philippines. A powerful translation of this influence has been
the use of the language of child labor such that the legal system has devised a universal
framework of labeling child work as necessarily harmful and justifying the over-simplistic
strategy of removal.
7

See e.g. Ma. Cynthia Rose B. Bautista, Allan B.I. Bernardo, and Dina Ocampo, When Reforms Dont Transform:
Reflections on Institutional Reforms in the Department of Education (Quezon City, Philippines: Human
Development Network, 2010) at 1 who explore the handicap of Filipino children of the early 1900s for receiving a
foreign system of education that was in a language not their own, under a curriculum directly borrowed from the
United States, [and] using materials suited for American children.

274

Finally, in the context of the youth justice system, laws and policies have historically been
confined to an approach of either saving the vulnerable child or punishing the little criminal.
The rhetoric of rescue was largely influenced by the American child-saving movement of the
early 20th century while that of punishment was shaped by a Western understanding of
individual responsibility. Such influences have led to the belief that youth justice is limited to a
choice between the mutually exclusive responses of either rescuing the innocents or controlling
the dangerous delinquents.
These responses embodied within the legal discourse have been subsumed under the general
framework of protecting the child whereby adults provide the protection and children are the
objects of such protective care. Within this framework, there must be a generation of adults and
one of youth, in interaction, and an influence exercised by the first on the second.8 Such an
understanding has highlighted the us/them distinction of the dominant discourse wherein
children are drawn along a trajectory leading them to the (preferred and dominant status) of
adult9 and children are seen as the targets of laws and policies.
The limitation of our understanding of children and childhood to universal and teleological
notions of innocence, dependence and development has clearly formed particular images of
children and responses to their engagements. This thesis has attempted to demonstrate that the
dominant conversations about a child, legal or otherwise, invoke images of the child and
understandings of childhood underpinned by an authentic childhood experience. Thus, the
sole and reflexive reliance on a dominant discourse has only served to universalize a particular
conception of children and childhood. As such, laws and policies reliant on a dominant
paradigm have offered, at best, a restrictive image of the child that fails to articulate whether
deliberately or otherwise the diversity in the lives and experiences of children. This restrictive
image has legitimized particular forms of intervention that have been confined, as this thesis has
shown, to either rescue or control where the child is the passive object of the legal system in
particular and of society in general. Within such a system, the voices of children have continued

Emile Durkheim, Education and Sociology, translated by Sherwood Fox (Glencoe, Illinois: The Free Press, 1956)
at 67.
9
McDonald, supra note 6 at 245.

275
to be shut out alienating children and pushing them even more into marginality.10 Worse,
children, in fact, have been exposed to even more vulnerabilities as shown by the treatment of
failing school children, child workers, street children and young offenders.
II. EXPRESSIONS OF THE EMERGING PARADIGM AND ITS TENUOUS FOOTHOLD
Against the backdrop of the dominant discourse of children and childhood, the thesis has looked
at the emergence over the last few decades of new ideas about children and childhood. There
have been two main influences on this emerging paradigm. The first is the literature of
childhood studies with an understanding of a more particularistic and contextually-sensitive
account of what it means to be a child of a particular culture and society at a specific point in
history. The second is the child rights movement, culminating in the United Nations Convention
on the Rights of the Child.
These influences have emphasized the need to recognize and respect the diversity of childrens
lives and the equal authenticity of each childhood experience. Such recognition and respect of
childrens lives has, in turn, challenged monolithic and universalistic conceptions of what is
expected of young people and what is in effect natural for them.11 Equally important, the
understanding of multiple childhood experiences has repositioned children as active participants
in the construction and determination of their own lives, the lives of those around them and of
the societies in which they live.12 As such, children are seen not only as moral agents possessing
the capacity for moral reasoning, but also as social actors whose dealings and interactions have
consequences.13 Within this framework, children are to be considered persons in their own right
who are entitled to equal consideration. They are valued for who they are and what they bring to
the definition and structuring of the different contexts where they live their realities.
10

Ibid at 243 argues that policies based on totalizing images of children tend to propel particular, negatively
characterised identities which culminate in social exclusion, marginalisation and often impoverishment.
11
Roger Smith, Doing Justice to Young People: Youth Crime and Social Justice (Oxon: Willan Publishing, 2011) at
16.
12
Alan Prout and Allison James, A New Paradigm for the Sociology of Childhood? Provenance, Promise and
Problems in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary
Issues in the Sociological Study of Childhood, 2d ed (London: The Falmer Press, 1997).
13
Berry Mayall, Towards a Sociology for Childhood: Thinking from Childrens Lives (Buckingham: Open
University Press, 2002) at 21 writes that these new understandings see children as agents whose engagements
involve negotiation with others, with the effect that the interaction makes a difference to a relationship or to a
decision, to the workings of a set of social assumptions or constraints.

276

It should be made clear, however, that this emerging paradigm has not denied differences
between adults and children. Indeed, children suffer specific and often greater harms not only as
children but also because they are children. McDonald aptly frames this understanding of
children and childhood:
The new approach, while not rejecting the notion that children develop and
mature biologically and cognitively, suggests instead that any approach which
conceptualises childhood as a universal biologically determined condition misses
the nuance and difference arising from temporal, historical and social variance in
the lives of children. As such, the new sociology attempts to overcome the
totalizing impetus embedded in traditional accounts in an effort to respond to
difference.14
What is crucial then is how the differences between children and adults are understood. In
advancing the recognition and respect of children as children, the emerging paradigm has
challenged the articulation of the difference between children and adults in terms of childhood
being incomplete, deficient and a less preferred state.15 Instead, the emerging paradigm pushes
for a contextualized understanding of children and childhood in which children equally share in
the shaping of the experience of childhood in any setting. Within this understanding, children
are guaranteed the possibility of being themselves16 or as James and James put it, children can
experiment, can test out their ideasand can be children.17
These understandings have opened up opportunities for the participation of children where they
are afforded the rightful and legitimate claim to have a say and adults are called upon to
listen to the voices of children. James and James expound on this movement:
Listening to the voices of children has become something of a clarion call since the
late 1970s, both within and outwith the academy, drawing attention to the pressing
need to take into account childrens own interests in and perspectives on the social
world. Since the emergence of the new paradigm in childhood studies, no longer
14

McDonald, supra note 6.


Ibid.
16
See e.g. Eugeen Verhellen, Children and Participation Rights in Pia-Liisa Heilio, Erja Lauronen and Marjatta
Bardy, eds, Politics of Childhood and Children at Risk: Provision Protection Participation (Vienna: European
Centre for Social Welfare Policy and Research, 1993).
17
Allison James and Adrian James, Constructing Childhood: Theory, Policy and Social Practice (Houndmills,
Basingstoke, Hampshire: Palgrave Macmillan, 2004) at 188.
15

277
can children be regarded as the passive output of child-rearing practices nor their
social development envisaged as the product of a simple biological determinism
(citations omitted).18
Taking these new understandings of children and childhood and what they mean for the
participation of children, the thesis has examined each of the four particular contexts where we
can manifestly see the lives of children unfold from the perspective of the emerging paradigm.
The focus has been both on identifying any openings for the emerging paradigm that have
already taken tenuous hold in Philippine law and on using the values of the emerging paradigm
to critique dominant tendencies in the current legal framework and to suggest a path for broader
reformulation of the legal system. This analysis allows us to see the opportunities and
constraints afforded to and/or denied children with respect to their participation. In the language
of this thesis, such an examination allows us to see how the legal system has, in fact, recognized
and respected childrens rights, realities and relationships.
As demonstrated in the thesis, there have been some concrete expressions of the emerging
paradigm in the current Philippine legal system, particularly in education and the youth justice
system.19 Even in the labor context, there was a period, although short-lived, when an emerging
paradigm was put forward. In these instances, the legal environment has become more cognizant
of the diverse realities of children and there is some concrete acknowledgment of the role of the
child in defining and structuring the particular context.
Within the educational system, the thesis has demonstrated concrete expressions of the
emerging paradigm in laws and policies which acknowledge the role of students within
education and recognize their rights within the system. The Education Act of 1982 has expressly
recognized students as members and elements of the educational community. As such, the law
has promoted and safeguarded their welfare and interests by defining their rights and
obligations, according them privileges, and encouraging the establishment of sound
relationships between them and the other members of the school community. This attention to
the rights of students has led to victories in court challenges where the fundamental rights and
18

Ibid at 23.
As indicated in Chapter I on The Family, the legal framework and the corresponding expressions in laws and
policies governing the family are (and have always been understood as) very much an expression of the dominant
discourse.
19

278
freedoms of students within schools have been sustained. As well, the Governance of Basic
Education Act of 2001 has acknowledged the different experiences of children by mandating the
translation and adaptation of educational policies, programs, projects and services to respond to
local needs and reflect local values. To this end, policy reforms informed by a vision of a learner
centered educational environment have been initiated and implemented.
Even in the labor context, there was a brief period when the emerging paradigm found
expression.

In 1992, with the Anti-Child Abuse Law, legislation shifted from prohibiting

underage employment to ensuring that there were protective measures for working children.
This law, albeit short-lived, articulated the emerging paradigm by diversifying childhood
through an implicit recognition of the working child as an equally authentic childhood
experience.
With respect to the system of youth justice, the current Juvenile Justice and Welfare Act of 2006
has centrally located the child within the youth justice system, manifesting a clear expression of
the emerging paradigm. The 2006 law clearly mandates the participation of children in the
formulation and implementation of youth justice programs and policies. The themes of context
and participation, characteristic of the emerging paradigm, are expressed in such principles and
mechanisms as restorative justice, individualized intervention programs, contextualized
diversion and community-based rehabilitation and reintegration. In all these processes, the law
has provided for the protection of the rights of children and their active involvement in the
system of youth justice. Such an expression in law has allowed for a broader understanding of
the diverse realities of children and at the same time has shown greater respect for their
capacities.
However, despite these expressions of the emerging paradigm in Philippine law, the thesis has
also shown that the effects of such an approach have still been limited. For example, in the
education context, court challenges dealing with the engagements of students within schools
have been exclusively framed as constitutional questions involving the inviolability of the Bill
of Rights in the Constitution. Thus, although these judicial determinations endorse the emerging
paradigm by sustaining the fundamental rights and freedoms of students in schools, these cases
are exceptional in nature and do not promote systemic changes within education, especially in

279
the daily experiences of students including younger children within schools. Equally
significant, underneath these cases is still the overriding influence of the dominant discourse that
stresses the overarching socialization function of education. Thus the recognition of students
rights, suggestive of growing support for the emerging paradigm, is justified by reversion to the
language of the sole duty of educational institutions to teach citizenship and produce mature and
responsible adults. As well, the expressed effort to involve students in the institution of a system
of education relevant to their needs evidenced by changes in curriculum and performance
standards is, nevertheless, contradicted by the underlying justifications used in educational
policy reforms that look to an idealized end of producing competent and independent
individuals. In the process of achieving this goal, unfortunately, the actual contributions of
students are dismissed as incidental.
In the youth justice system, despite a clear articulation of the participation of children in the
current law characteristic of the emerging paradigm, current debates have still focused on
concerns of the dominant paradigm whether to save the pitiful child offender or punish the
cunning delinquent. These debates have led to calls for the amendment of the law which has not
been understood, much less appreciated, for the participative framework it introduced. Worse
yet this law has not been even fully implemented.
The constraints faced by the emerging paradigm demonstrate not only the tenuous foothold of
this approach but also the still powerful sway held by the dominant discourse. Consequently,
these limitations demonstrate the need to challenge the dominant discourse and at the same time
articulate an emerging paradigm that can firmly establish itself where there is recognition and
respect of childrens rights, realities and relationships. An-Naim writes of this elaborate process
of challenging dominant norms through the introduction of alternative perspectives:
Global cultural diversity reflects the dominance of certain interpretations of the
major norms and institutions of each culture at a given point in time. Although the
proponents of dominant interpretations would normally purport to present them as
the only authentic or legitimate position of the culture on the issue in question,
different positions can usually be presented within a certain range of possibilities.
This is due to the fact that cultural norms and institutions are characterized by
varying degrees of ambivalence and flexibility in order to cater for the different
needs and circumstances of the population. Cultures also change and evolve over
time in response to external influence as well as internal demands.

280
There would therefore always be other perspectives which can be articulated to
challenge dominant interpretations, and thereby present alternative views of the
position of the culture on a particular issue at any given point in time. The
prevalence of one perspective or another is therefore open to challenge through
change or adjustment in the dynamics of power relations within the culture. It
should be noted here that the struggle over cultural resources can take place
through action or behaviour as well as verbal articulation. The absence of
particular manifestations of such struggle, or the lack of certain forms of challenge
and contestation of prevailing interpretations, does not mean that cultural
transformation is not happening at any point in time.
To be effective in changing the beliefs, attitudes and behaviour of the relevant
population, the proposed alternative perspective must be perceived by that
population to be consistent with the internal criteria of legitimacy of the culture,
and appreciated as relevant to their needs and expectations. It would therefore
seem to follow that the proponents of change must not only have a credible claim
to being insiders to the culture in question, but also use internally valid arguments
or means of presentation. In other words, the presentation and adoption of
alternative perspectives can best be achieved through a coherent internal discourse
(italics in the original).20
III. A CONTEXTUALIZED UNDERSTANDING

OF THE

EMERGING PARADIGM

AND

CHILDRENS

PARTICIPATION
It is clear that the challenge for this thesis has been to advance new understandings of children
and childhood that will ultimately [redefine] the place of children within the world and thus
[make] a real difference to all our lives.21 The emerging paradigm has provided those
understandings. However, as An-Naim contends, the more one is perceived to be confirming
existing beliefs and practices rather than challenging them, the better will be the prospects of
wide acceptance and implementation of ones alternative perspective.
A major ambivalence towards the emerging paradigm in the Philippines and the consequent
participation of children lies in the fear that the child will be taken away. Such apprehension
reveals an understanding that has been instinctively equated with autonomy and self-

20

Abdullahi An-Naim, Cultural Transformation and Normative Consensus on the Best Interests of the Child in
Philip Alston, ed, The Best Interests of the Child: Reconciling Culture and Human Rights (Oxford, New York:
Oxford University Press, 1994) at 67-68.
21
Bren Neale, Conclusion: Ideas Into Practice in Bren Neale, ed, Young Childrens Citizenship: Ideas Into
Practice (York, UK: Joseph Rowntree Foundation, 2004) at 172.

281
determination as understood within the liberal tradition22 where individual choice or freedom is
highly valued. The participation of children brought about by the emerging paradigm has been
understood as a dangerous centre23 that disrupts adult-child relations. On this understanding,
children are thought to have the freedom to decide for themselves in matters affecting them and
can and should accept responsibility for their own actions. Some have put this as leaving
children to their rights.24
Clearly, however, the understanding of the emerging paradigm and the consequent participation
of children espoused by this thesis has a distinctively indigenous character. The focus on the
indigenous concept of the kapwa as the basis for the emerging paradigm and the participation of
children provides the folk model that challenges the dominant discourse of children and
childhood but at the same time confirms existing Filipino beliefs and practices. With the use of
such an indigenous concept, the emerging paradigm does not necessarily introduce new
understandings of children and childhood in the Philippines but rather becomes an expression of
deeply held indigenous relational values. In turn, participation reflects how the child is really
connected to others, with participation being not only an end in itself but also, and as
importantly, a connective process where the child shares in reciprocal and interdependent
responsibilities. These understandings should allay fears that the emerging paradigm and
participation would signify the separation of children from adults. Quite the opposite, they, in
fact, establish deep and mutually reciprocal connections between children and adults. The use of
the indigenous relational concept of kapwa to ground the emerging paradigm and participation
involves a profound sharing of identities. As Jocano explains:
The term kapwa means of the same nature, of equal status, partnership,
shared orientation. Other writers use it to refer to our consciousness of shared
identities. This is indicated by the prefix ka, meaning co-equal. Thus,
whenever this word is prefixed another, it suggests a meaning of togetherness the

22

This autonomous and individualistic understanding of child participation was strengthened by a strong child
liberation movement from the 1970s to the 1980s. See e.g. Richard Farson, Birthrights: A Bill of Rights for
Children (New York: Macmillan Publishing Co., Inc., 1974); John Holt, Escape from Childhood (New York: E.P.
Dutton & Co., Inc., 1974).
23
Hilary Lim and Jeremy Roche, Feminism and Childrens Rights: The Politics of Voice in Deirdre Fottrell, ed,
10 Years of the UN Convention on the Rights of the Child (The Hague, The Netherlands: Kluwer Law International,
2000) at 51.
24
See e.g. Bruce Hafen and Jonathan Hafen, Abandoning Children to their Autonomy: The United Nations
Convention on the Rights of the Child (1996) 37:2 Harv Intl L J 449.

282
sharing of the same identity as in kapatid (sibling), kasama (companion),
kasintahan (fiance) and so forth.
Whichever meaning is used to describe it kapwa refers to the emphasis we place on
equality of status or of being part of any social collectivity. That is why we speak
of kapwa-tao when we speak of fellow human beings25
As the basis of the emerging paradigm and participation in the Philippines, this indigenous
concept of kapwa is not meant to assert individual autonomy as understood in Western liberal
traditions, but rather to share ones self with the other. Indeed, there is a substantial difference
in the use of the other in the Western liberal tradition as opposed to the other within the
Filipino concept of the kapwa. Enriquez poignantly captures this distinction:
When asked for the closest English equivalent of kapwa, one word that comes to
mind is the English word others. However, the Filipino word kapwa is very
different from the English word others. In Filipino, kapwa is the unity of the
self and others. The English others is actually used in opposition to the
self, and implies the recognition of the self as a separate identity. In contrast,
kapwa is a recognition of shared identity, an inner self shared with others.26
Through the lens of the kapwa framework, legal norms are not simply understood as impositions
upon a passive and dependent recipient-child. Instead, laws and policies, whether relating to the
family, the educational system, the labor market or the youth justice system, are seen as building
on a network of interdependencies in which participants including children engage in
reciprocal responsibilities and relationships. Consequently, the intrinsic quality and meaning of
actions of the child and towards the child take on a significant legal, social and moral value.
This understanding recognizes the inherent right of children as persons, acknowledges the
diversity of childrens lives and respects the relationships that they establish and maintain.
Within the familial context, the thesis has recognized that current laws and policies are still very
strongly anchored in the tradition of the dominant discourse, using the legal concept of parental
authority whereby power and control are exercised over the person and property of the child.
Thus, legal norms involving engagements of the members of the family for example, those
25

Felipe Landa Jocano, Asal: The Expressive Core of Filipino Value System (Quezon City, Philippines: Punlad
Research House, 1992) at 8.
26
Virgilio Enriquez, From Colonial to Liberation Psychology: The Philippine Experience (Diliman, Quezon City:
University of the Philippines Press, 1992) at 43.

283
governing support, guardianship, the family home, discipline and parental consent/advice have
been exclusively understood as rights, duties and obligations of parents towards their children,
relegating the latter to the status of passive recipients of the familys specifically adults
socialization. Here the thesis has challenged the basis for these legal norms, arguing that the
family within which these engagements occur is more than an institution characterized by a
structure of influence and obligations. In its exploration of the foundations of the Philippine
family, the thesis re-imagines the family as a network of relationships based on an indigenous
relational framework, providing an avenue for expression of the emerging paradigm. With a
reconceived notion of the nature of the family, the thesis shows how legal norms within the
current system can be re-interpreted as a recognition of the actual engagements of children that
demonstrate their rights, realities and relationships within the family. Children thus are given the
occasion to be acknowledged as active participants within the family where they share in
defining an identity for the family. As well, the acknowledgment of the role of children in
structuring the family reveals the diversity of the experiences of children. This re-imagining of
the family and the engagements occurring within it allows for new interpretations of current
laws and policies consistent with the emerging paradigm.
In the educational context, the thesis situates the current legal expression of the emerging
paradigm within the language of shared purpose, shared governance and contextualized
system of education found in the current legal framework. The thesis argues that such an
articulation of the emerging paradigm shifts the focus of education from its socializing function
the impetus of the dominant discourse towards the recognition of the interdependent
engagements of the different members of the educational community including children. In this
expression, all the members of the educational community, including children, are engaged with
their system of education not only through the exercise of their rights, but also through the
establishment of their connections as expressed in reciprocal responsibilities and relationships.
This articulation of the emerging paradigm once again draws upon deep relational connections
evocative of the indigenous kapwa philosophy that allows for the participation of children where
they are engaged in a system of deep and reciprocal attachments rather than in a system of
control, influence and direction.
In terms of the work environment, the thesis has demonstrated the still pervasive influence of

284
the dominant discourse on the current legal approach to child work. By relying on a legal regime
that uses prohibitory language with limited exceptions and subjective standards, the legal system
has directed attention towards the prohibition of child work, maintaining a construction of
children based solely on dependency and vulnerability. This has pushed children involved in
work to the periphery, treating them either as deviants or victims. Although there was a shortlived moment when the law shifted from the mode of prohibiting underage employment to
prioritizing protective measures for working children implying a recognition of the reality of a
working child the legal framework in the labor context has remained largely an articulation of
the dominant discourse.
Given the pervasiveness of the dominant discourse in child work laws and policies, the
emerging paradigm, with its understanding of the diverse realities of children, has challenged
the totalizing construction of the experience of childhood embodied in this dominant discourse.
Against the universal prohibitory child work legal regime in the Philippines, the thesis uses the
emerging paradigm to highlight the reality that children in the country are, in fact, working or
involved in some form of economic activity. As such, the emerging paradigm opens the
opportunity for childrens participation by broadening the understanding of childhood to reflect
the diversity of the lives of children, their families and the communities they live in, including
the phenomenon of child work. Child work is thus shown to involve a whole gamut of
contextualized circumstances and relationships that current child work laws and policies, based
on a universalized experience of childhood, fail to consider. These contextualized circumstances
include: the active role of the child in the decision to work; reasons for working that are not
necessarily confined to economics; work environments affected by internal and external factors;
child workers who may see their work and the circumstances surrounding it differently from an
outsider and who do not necessarily dichotomize between work and education.
Because the emerging paradigm allows for the repositioning of children as participants in the
structuring of the context where they live their realities, the thesis uses such an understanding to
advance a child work policy that is not based solely on age-based restrictions, but rather one that
entails an appreciation of childrens capacities, opportunities and constraints, and
responsibilities. The emerging paradigm exposes the inadequacy of a legal system that relies on
a reflexive characterization of child workers as helpless victims who are coerced into stressful

285
and hazardous environments. In other words, a legal understanding of child work limited to a
framework of abuse and exploitation will not sufficiently describe the phenomenon of child
work in the Philippines. Instead, laws and policies must consider the role of children in the
decision to work and how this provides an opportunity for them to partake in reciprocal
responsibilities within a network of interdependent relations. Such understandings once again
speak of the kapwa philosophy where articulations of the engagements of children are
understood within the context of interdependent connections.
Finally, with respect to the youth justice system, the thesis situates the current legal expression
of an emerging paradigm found within the Juvenile Justice and Welfare Act of 2006 within
deeply held indigenous philosophies cognizant and respectful of the relational connections
between and among the child offender, the victim and the community. As such, children become
active participants with the youth justice system where they share in reciprocal responsibilities.
In this sense, the youth justice system is not focused merely on the rights and responsibilities of
the young offender, rather, it essentially entails the reconnection and re-establishment of
relationships involved in youth offending.
Throughout all these contexts, the thesis has shown that the law has been a critical site of
engagement for understandings of children and childhood. Just as the law has ascribed
representations of the child that are restrictive, partial or worse, misleading which Graham and
Fitzgerald lament as resulting in imprisoning a child within a false, distorted, and reduced
mode of being27 it has, at the same time, also been a site where these roles and identities have
been reconceptualized.28 Glendon writes: But just as we must guard against having exaggerated
expectations of what law can accomplish on its own, we must also take care not to fall into the
opposite error of unduly minimizing its potential to influence social trends.29 Cotterrell further
asserts: Law [has the] power to shape the meaning of social relationships and social institutions

27

Anne Graham and Robyn Fitzgerald, Progressing Childrens Participation: Exploring the Potential of a
Dialogical Turn (2010) 17:3 Childhood 343 at 349.
28
See e.g. Brenda Cossman, Turning the Gaze Back on Itself: Comparative Law, Feminist Legal Studies, and the
Post-colonial Project (1997) 1997 Utah L Rev 525 at 531 where she locates her work as an exploration of how the
legal discourse is constitutive of womens subjectivities as wives and mothers, as passive and weak, as subordinate
and in need of protection[but the] law is, at the same time, a site where these roles and identities have been
challenged.
29
Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and
Western Europe (Chicago: University of Chicago Press, 1989) at 311.

286
and indeed, to define personal identity. Lawshapes expectations, responsibilities and
constraints attaching to social statuses.30
IV. MOVING FORWARD
What, then, does the thesis lay out as the way to move forward? Within the family context, an
important first step is a re-examination of the legal definition of parental authority. Because the
current definition in the Family Code speaks exclusively of the parental right and duty over
children within the family, engagements of children within the family are understood as a
translation of the rights, duties and obligations of parents towards their children. Consequently,
legal norms involving the family are seen as impositions on children that must be observed
pursuant to parental authority. In reformulating the definition of parental authority, there must
be a clear recognition of the relational nature of the family such that the engagements of both
parents and children are interpreted as responsibilities taken on by them in the intimate sharing
of collective values that define and structure the Philippine family. Concurrent with such a
redefinition of parental authority, there must also be a comprehensive review of all other laws,
policies and judicial interpretations relating to engagements within the family to reflect this
relational understanding of the family.
In the educational context, a critical opportunity for the legal system is to consider a
consolidated law that unequivocally articulates a shift in the framework of education away from
an overarching socialization function and towards a shared undertaking. Because the basic
framework of education is contained in two laws passed almost 20 years apart, the legal system
has to consider a harmonized law that would embody both the language of shared purpose and
cooperation in the Education Act of 1982 and that of shared governance in the Governance of
Basic Education Act of 2001.31 With a clear articulation of the function of education in society,
legal and policy interpretations of the role of the members of the educational community

30

Roger Cotterrell, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (England: Ashgate
Publishing Limited, 2006) at 99.
31
During the writing of this thesis, Republic Act No. 10533 (2013) An Act Enhancing the Philippine Basic
Education System by Strengthening its Curriculum and Increasing the Number of Years for Basic Education,
Appropriating Funds Therefor and for Other Purposes was passed and signed into law by the President on May 15,
2013. Although it moves towards the direction of articulating an educational system that is inclusive and
participative, it has to confront the issues raised in the Chapter on Education specifically with respect to the BEP.

287
including children in the educational system can be re-examined with a view of reflecting a
system characterized not merely with the exercise of rights, but also with reciprocal
responsibilities and relationships. Equally important, a clear legislative mandate will reduce, if
not eliminate, erratic policies brought about by political maneuverings in the Department of
Education, especially appointments to the Office of the Secretary of Education. Concomitantly,
the national educational bureaucracy must continue to shed its centralized powers by sharing
accountability with regional and local offices, including the local communities in the adoption
and translation of programs, policies and services that respond to and reflect local needs. Within
this sharing of responsibility, there must be meaningful, relevant and participative training for
the local units not only for the teachers but also for the local educational community to
undertake a transformative system of education.
In the context of the work environment, the legal system must re-examine its absolutist attitude
towards child work that universalizes childhood realities. In its treatment of children at work,
the law clearly must consider the well-developed perspective32 of the principal stakeholder
in child work. To this end, the United Nations Committee on the Rights of the Child
recommends:
Children working at younger ages than permitted by laws and International Labour
Organization Conventions Nos. 138 (1973) and 182 (1999) have to be heard in
child-sensitive settings in order to understand their views of the situation and their
best interests. They should be included in the search for a solution, which respects
the economic and socio-structural constraints as well as the cultural context under
which these children work. Children should also be heard when policies are
developed to eliminate the root causes of child labour, in particular regarding
education.33
As such, laws and policies have to take account of the diversity in the lives of children,
especially working children, and acknowledge how their habitus, dispositions and desires may
be quite different and maybe even at odds with that propelled in policies and associated
programmes.34 Concretely, these considerations suggest the need for a critical assessment of
the effects of the current prohibitory legal regime on the millions of children in work or some
32

Martin Woodhead, Combatting Child Labor: Listen to What the Children Say (1999) 6 Childhood 27 at 36.
United Nations Committee on the Rights of the Child, General Comment No. 12 (2009) The Right of the Child to
be Heard, CRC/C/GC/12, 51st Sess (2009) at 26, par. 116.
34
McDonald, supra note 6 at 249.
33

288
form of economic activity and the many more that are about to enter the world of work. Such
evaluations will inevitably lead to the even more basic task of defining child work.
Finally, in the system of youth justice, the current Juvenile Justice and Welfare Act of 2006 must
first be fully implemented before any call for its repeal and/or amendment is considered. The
recent release of hundreds of child offenders who were imprisoned before passage of the current
law should provide an appropriate test case as to how the mechanisms and processes provided in
the law, which reflect the principles of diversion and participation, will respond to young
offenders. While the law is being implemented, legal discourse must be channeled away from
the conventional and unproductive debates about whether the law has appropriately saved or
punished the children caught within the youth justice system. Instead, the focus should be
directed on whether the system has restored and addressed the relationships affected by the
crime.
In the end, as Neale has rightly observed, turning the principle of childrens participation into
practice is a complex task that involves changing the cultures of adulthood alongside those of
childhood.35 The Committee on the Rights of the Child asserts:
The concept of participation emphasizes that including children should not only be
a momentary act, but the starting point for an intense exchange between children
and adults on the development of policies, programmes and measures in all relevant
contexts of childrens lives.36
On one level this involves a legal discourse that recognizes and respects the rights, realities and
relationships of children. But on another level, this also involves shifting attitudes, values and
behavior towards children and childhood. What is fundamental is that these legal reforms and
shifting values will allow the possibility, as Graham and Fitzgerald declare, for children to
discover and negotiate the essence of who they are and their place in the world.37

35

Neale, supra note at 21 164.


United Nations Committee on the Rights of the Child, supra note 33 at 7, par. 13.
37
Graham and Fitzgerald, supra note 27 at 348-349.
36

289
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Adhikain Para sa Karapatang Pambata Ateneo Human Rights Center. Research on the Situation
of Children in Conflict With the Law in Selected Metro Manila Cities (Quezon City, Philippines:
Save the Children UK, 2004).
Allatt, Pat. Conceptualizing Parenting from the Standpoint of Children: Relationship and
Transition in the Life Course in Julia Brannen and Margaret OBrien, eds, Children in Families
Research and Policy (London: The Falmer Press, 1996).
Alston, Philip (ed). The Best Interests of the Child: Reconciling Culture and Human Rights
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