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SBC- HRA DEBATE CUP 2017

MOTION: Let it be resolved that the minimum age of

criminal responsibility be lowered to nine years old

NEGATIVE POSITION PAPER

Submitted by: 1-F

Debaters:

Ada, Neil Kirby

Constantino, Joshua

Corpuz, Francis Arthur

Head Researcher: Tabbu, Lyssa

Beadle: Acuña, Rhev Xandra

March 6, 2017

San Beda College of Law

Mendiola, Manila
Negative Position Paper (1F)

Let it be resolved that the minimum age of criminal responsibility be lowered to nine years

old

BACKGROUND

Republic Act No. 9344 or the Juvenile Justice System and Welfare Act of 2006, as

amended by Republic Act No. 10360, is a landmark piece of legislation that introduced novel

concepts, principles and procedures into our legal system and indubitably changed the face of

juvenile justice in the Philippines.1 R.A. No. 9344 established a comprehensive restorative

juvenile justice system and delinquency prevention program under the Department of Justice.

Under this new system, several government-run, center-based rehabilitation programs were

further strengthened, and community-based diversion programs were instituted for the

purpose of the social integration of children in conflict with the law. 2 The act also changed the

minimum age of criminal responsibility. It exempts children fifteen (15) years of age or under

from criminal liability but they are to be subjected to an intervention program. Meanwhile,

children above fifteen years but below eighteen (18) years of age are likewise exempted unless

it will be proven that they have acted with discernment.3

However, since it has been implemented, the Juvenile Justice System and Welfare Act

has been under fire for its inefficiency. Various advocates and lawmakers claimed that the

system failed to address crimes involving the youth and curtail the increasing crime rates in the

1
Quimpo-Sale, A. W. (2016). Children in Conflict with the Law and Court Diversion Procedure: Restorative Justice
in Action. PHILJA Bulletin, XVIII(69), 3. Retrieved from
http://philja.judiciary.gov.ph/assets/files/pdf/PHILJA_Bulletin/Bul69.pdf
2
https://www.unicef.org/evaldatabase/index_85542.html
3
Republic Act No. 9344
Negative Position Paper (1F)

country. They assert that the current laws on juvenile justice pamper offenders from the youth,

knowing that they are under the law exempt from any liability, thus worsening the problem on

criminality. It is on this ground that they push forward for the amendment of the current laws

and propose that the minimum age of criminal responsibility be lowered to nine years old.

We strongly disagree.

We are of the opinion that lowering the age of criminal responsibility is neither

necessary, nor beneficial, and ultimately impractical for it offers a myopic solution to a much

bigger problem. The current Juvenile Justice System Act is adequate enough to deal with

children in conflict with the law and at the same time ensure that the rights of these children

are also protected. There is only a need for a proper and more effective implementation of the

system’s mechanisms in order to reap the benefits it seeks to achieve.

I. NON-NECESSITY

According to Bobby Scott: giving a 10-year mandatory minimum for a second offense fist

fight is not going to reduce the chance that someone will be stabbed 16 times when you are not

funding any of the programs that are desperately needed to actually reduce juvenile crime.

It has been 12 years since RA 9344 or the Juvenile Justice and Welfare Act has been

enacted. It has been conceded that this law was passed because of the pressing circumstances.

It is the policy of the negative bench to retain the present minimum age of criminal

responsibility of above 15 years old to below 18 years of age who have acted with discernment.
Negative Position Paper (1F)

The Constitution provides that the State shall defend the right of children to assistance,

including proper care and nutrition and special protection [of children] from all forms of neglect,

abuse, cruelty, exploitation, and other conditions prejudicial to their development4 (Emphasis

supplied).

RA 9344 in connection to Article 12 of the Revised Penal Code provides that those

children above 15 and below 18 years old who only have acted with discernment are triable in

our courts of justice. It is absurd based on facts and recent studies to lower the age of criminal

responsibility to the tender age of 9 years old.

Statistics

According to the data of Amnesty International and the UNICEF: 50,000 children in the

Philippines are arrested and detained since 19955, 28 children are arrested every day and 8 out

of 10 CILC will commit only one offense in their lifetime. First time offenders who is kept out of

adult jails is 8 times more likely to change and become productive. According to PNP Data, the

number of crimes committed by children comprises only 1.72% of the total reported crimes in

the Philippines.6

Why will the lowering of age not address the country's problem on crimes?

4
Article XV, Section 2 (3), 1987 Constitution
5
Children in Jail in the Philippines (n.d). Retrieved March 5, 2017 from
https://en.wikipedia.org/wiki/Children_in_jail_in_the_Philippines
6
Jail is no place for a Child (n.d.). Retrieved March 5, 2017 from
https://www.unicef.org/philippines/children/jj_1.html
Negative Position Paper (1F)

According to the position paper of the Philippine Psychological Association on the House

Bill No. 60527, scientific evidence shows that although children may have discernment on what

is right and wrong (which may be a factor in mitigating their criminal liability), it is their

capability to act in relation to such discernment which is affected by some factors:

○ Deficiencies in Decision-making capacity



The adolescent brain is still under development. Especially those in the
prefrontal regions in charge with impulse control, decision making, long
term planning, emotion regulation, and evaluation of risks and rewards.
 The adolescent is psychologically immature compared to adults. Because
of still-developing cognitive abilities and limited life experiences.
 Adolescents differ from adults in their assessment of and attitude
towards risk. Places relatively less weight to risk and give more weight to
rewards.
 Steinberg,L.,& Scott,E.(2003)’s study argued that “Adolescents’ decision –
making capacities are diminished as they are less able to resist coercive
influence and their character is still undergoing change
 Another study by Steinberg L. (2008) on adolescent risk-taking found that
risk-taking increases between childhood and adolescence due to changes
in the brain’s social-economic system. The immaturity of young people
due to their brain underdevelopment influences their decision making
and susceptibility to perform risky activities. Thus, along with the
influence of criminogenic environments where children reside (i.e. many
CICL live in communities where crimes are rampant) and the CICL’s
personal circumstance (i.e. poor, lacking in education,
neglect/abandonment, poor parental supervision can be considered
mitigating factors in their criminal culpability.
○ Heightened vulnerability to Coercive Circumstances
 As minors, young people lack the freedom that adults have to assert their
own decisions and extricate themselves from criminogenic settings.
Children often subjected to abuse to commit crime where they are
powerless to resist.

7
Position Paper of the Philippine Psychological Association on the HB 6052 (n.d.). Retrieved March 5, 2017 from
https://www.pap.org.ph/includes/view/default/uploads/pap_position_paper_on_juvenile_justice_law_110812.pd
f
Negative Position Paper (1F)

 Adolescent are more susceptible to peer influence to adults. Because of


desire for approval and belonging.
○ The disadvantaged environment and profile of the Filipino CICL
 The typical CICL is poor, lacking in education, a victim of parental neglect

and/or abuse, and lives in a criminogenic environment. To place such

young person, already victimized into criminal justice would push them to

the negative life trajectory.

The Philippine Action for Youth Offenders (PAYO) conducted a Study on Age of

Discernment of Out-of-School Children. Researchers interviewed 300 out-of-school children

between the ages of 7 and 18, most of whom were street children. The study, which followed

up on a similar study conducted with school children, concluded that out-of-school youth have

a lower ability to make positive choices in life and were generally at a very low level of

discernment. At the age of 18, the out-of-school children tested were at a level of discernment

comparable to a seven year old. This dispelled the common myth that street children "grow up

faster" than school-going children, and if fact demonstrated that the contrary was true. While

street children had development "street smarts", their moral reasoning and cognitive

development were impaired by the surroundings in which they were living.8

The prevailing circumstances in the Philippines compounds the problem rather than

resolves it: There is no need to lower the age of criminal responsibility because it is not feasible

in an environment such as ours.

8
Study on Age of Discernment of Out-of-School Children. Philippine Action for Youth Offenders. Retrieved March
5, 2017 from http://www.crin.org/en/docs/PAYO%20stand%20on%20Senate%20Resolution%20280.pdf
Negative Position Paper (1F)

The Philippines is a third-world country where the lowest brackets of the social system

receive little to no education and are susceptible to external control and manipulation. Thus,

(supported by articles on child development) children often grow up without mental and moral

support as that of an average child. We can expect based on studies that these children are not

fully aware of their acts:

● The case of Ortega vs. People (G.R. No. 151085, August 20, 2008) shows a case where
children only follow orders of adults when it comes to perpetration of crimes. Despite
the ruling, which takes a paragraph from R.A. No. 9344, the children described in the
law are mere foot soldiers or couriers, but are not the ones who initiated the criminal
act by themselves.
Discernment is an important qualifier on whether or not a child is considered criminally

liable. For this, judicial or official examination must be done in order to know if discernment

was present in the act constituting the crime:

 In cases such as Anciro vs. People (G.R. No. 107819, December 17, 1993) and Madali vs.
People (G.R. No. 180380, August 4, 2009), the courts looked into evidence and
investigations with which to determine discernment of the accused.
Why is the enforcement of laws the better solution than lowering the age of criminal

responsibility?

First of all RA 9344 and RA 10630 are not yet fully implemented. It must be given a

chance to be executed by the local government units to test its effectiveness. RA 10630

provides for a multi-disciplinary team to be composed of a social worker, a psychologist or

mental health professional, a medical doctor, an educational or guidance counselor and a

Barangay Council for the Protection of Children (BCPC) member. However, the non-government
Negative Position Paper (1F)

organizations (NGOs) providing services for the CICL observed that the multi-disciplinary team,

as provided under RA 10630, has not functioned at the local level.

Enforcement of laws is better than lowering the age of criminal responsibility because a

youth entering the Juvenile Justice System has the opportunity to receive intervention

assistance from the state. In the care of the state, a youth may receive drug rehabilitation

assistance, counseling, and educational opportunities. The success of the Juvenile Justice

System is measured by how well it prepares youth to re-enter the community without

committing further crimes. Optimally, all juvenile detention facilities would catch youths up on

their education, provide them with job training, give them the experience of living in a safe,

stable environment, and provide them with assistance to break harmful habits.

The best interests of children shall be the paramount consideration in all actions

concerning them, whether undertaken by public or private social welfare institutions, courts of

law, administrative authorities, and legislative bodies, consistent with the principle of First Call

for Children as enunciated in the United Nations Convention of the Rights of the Child. Every

effort shall be exerted to promote the welfare of children and enhance their opportunities for a

useful and happy life.

II. NON-BENEFICIALITY

Lord Scarman, Gillick once said, “The law must be sensitive to human development and

social change.”
Negative Position Paper (1F)

A warning was once publicized by the United Nations Children’s Fund (UNICEF) that

lowering the age of criminal responsibility is a “great child violation.”9 As elucidated, reverting

to the former minimum age of criminal liability would conflict with international standards;

which follows a desecration of the principle of pacta sunt servanda. Philippines, as a signatory

to the United Nations Convention on the Rights of the Child (UNCRC) of 1989, ratified with the

definition of a child as a person below the age of 18. As a state party to the convention, the

Philippines is thus obligated to increase the degree of protection for individuals under 18

years.10 Let this side oppose the policy into two-fold impression, legal impression and

psychological impression.

The passage of Republic Act No. 9344 or the Juvenile Justice and Welfare Act (JJWA) of

2006, as amended by RA No. 10630, is a great leap forward in the improvement of the legal and

judicial protection of children. RA 9344 has introduced several reforms in the manner by which

children in conflict with the law are handled. It establishes a comprehensive system for the

administration of juvenile justice, including the rehabilitation of children in conflict with the

law, their reintegration into their respective communities and the prevention of juvenile

delinquency. It introduces the principle of restorative justice and a system of diversion in

dealing with children in conflict with the law. Moreover, a national council on juvenile justice

and welfare was created to ensure the effective implementation of the new law.11 With regard

9
Dana Sioson, UNICEF says lowering criminal liability to age 9  ‘very unfair to a child’, Asian Journal (14
February 2017) Retrieved from <http://asianjournal.com/news/unicef-says-lowering-criminal-liability-to-age-9-
%E2%80%AFvery-unfair-to-a-child/> (18 February 2017).
10
Center for Media Freedom and Responsibility, Lowering the Age of Criminal Liability: What to Be Considered?,
(22 July 2016) Retrieved from <http://cmfr-phil.org/in-context/lowering-the-age-of-criminal-liability-what-to-be-
considered/> (18 February 2017).
11
Florenda S. Frivaldo, CHILDREN IN CONF LICT WITH THE LAW: THE CASE OF STREET CHILDREN IN
THE PHILIPPINES. International Journal of Development Research, 6 (02), pp. 6801-6807, (2016), Retrieved from
<http://www.journalijdr.com/sites/default/files/4774.pdf> (18 February 2017).
Negative Position Paper (1F)

to this, the commitment of the government in safeguarding the welfare of the youth is far from

appalling. Records reveal that only 1.72% of the total reported crimes in the Philippines

comprise the children. Culled from the facts, despite the apparent drawbacks and limitations of

the implementation of RA 9344, most of which relates to lack of participation of the community

and the parents themselves, and less to the drawbacks of the provisions, statistics shows that

right after the implementation of RA 9344 in 2006, the trend of volume of CICL dramatically,

and consistently decreased since then, showing that it is indeed beneficial and effective in

crime prevention, but more effective measures and general participation still has to be

bolstered. If a new policy would be adopted, the assurance of efficient implementation can be

disputed by the plain reason that an existing legislation for almost a decade is regarded as

faulty. The adoption of the same could amount to waste of public funds since it merely

proposes the lowering of the age of criminal responsibility but the programs involved would be

the same. Therefore, it will only result to the increase in the number of youth liable to crimes

amplifying the burden of the government in catering such social issue.

We now deal with the psychological aspect of this issue. What is often missing from

discussions of juvenile crime today is recognition that children and adolescents are not just

little adults, nor is the world in which they live the world of adults. Physical, emotional, and

cognitive development continue throughout adolescence. Although young people can approach

decisions in a manner similar to adults under some circumstances, many decisions that children

and adolescents make are under precisely the conditions that are hardest for adults—
Negative Position Paper (1F)

unfamiliar tasks, choices with uncertain outcomes, and ambiguous situations.12 Subjecting

children that are 9 years of age to criminal responsibility would indiscriminately discount the

natural formation of a youthful mind. In a recent paper by Aizer and Doyle, studies show that

those incarcerated as a juvenile are 39% less likely to graduate from high school and are 41%

more likely to have entered adult prison by age of 25 compared with other public school

students from the same neighbourhood.13

Piaget in his work, “The Moral Judgement of the Child” established a theory of not only

the cognitive, but also the moral development of a child's mind, précising that they cannot

undertake certain tasks until they are psychologically mature enough to do so.14 Psychologist

Kohlberg expanded on Piaget's position, and their theories make it plain that by ten, children

are not capable of making moral decisions similar to that of an adult, as they have not fully

learned to do so. The theories suggest that there are two stages of moral reasoning named the

heteronomous stage and the autonomous stage. At the heteronomous stage, the child is

egocentric and believes the world revolves around them, and they will act depending on the

severity of the outcome. This stage continues past the age of ten. Subsequently, when they are

in the autonomous stage, intentions are more important than the consequences of action and

should be the basis for judging behaviour, and it is then that a child should be held accountable

for his or her actions, not before.15 Thus, lowering the age of criminal responsibility would only

12
Joan McCord, Cathy Spatz Widom & Nancy A. Crowell, Juvenile Crime, Juvenile Justice, (National Academy
Press, 2001), 186, DOI: 10/17226/9747
13
Anna Aizer & Joseph J. Doyle, Jr. (2013). What is the long term impact of incarceration of juveniles?, Retrieved
from <http://voxeu.org/article/what-long-term-impact-incarcerating-juveniles> (18 February 2017).
14
Trans by Gabian Piaget, The Moral Judgement of a Child, (Penguin, 1977).
15
Higgins Kohlberg, Power: Lawrence Kohlberg's approach to moral education, (Columbia University Press,
1991).
Negative Position Paper (1F)

to put so much pressure unto the child compelling him to be aware of himself at an early age as

undertaken in the policy of the proposed bill.

Detention is not always the solution. Criminality is not the problem. The most

contemporaneous view would be that lowering the age of criminal liability is depriving and

disadvantageous to the poor. Given the current state of the justice system in the country, the

proposed bill risks victimizing the poor, among whom most offending minors come from,

primarily because of need. The means of these families barely cover their needs, let alone hiring

a lawyer, as circumstance may require. While poverty is not an excuse to commit crime, there

ought to be a clear distinction between making the children responsible for their acts and

criminalizing them. We must accept the fact that the problem of children in conflict with the

law is actually deeply rooted in the social ills of the country. Our government remained

complacent to the reverberating needs of the poor like adequate social services particularly

free and accessible education. To put it simply, address first these social ills if the sole purpose

the bill is to deter crimes, come up with more holistic and nuanced solutions rather than

simply lowering the age of criminal liability.16 Take note that young people are liable to

overestimate their own understanding of a situation, underestimate the probability of negative

outcomes, and make judgments based on incorrect or incomplete information all because of

lack of experience which increases their vulnerability.17 Hence, the adoption of the proposed

policy is ostensibly non-beneficial.

III. IMPRACTICABILITY

16
Center for Media Freedom and Responsibility, Lowering the Age of Criminal Liability: What to Be Considered?,
(22 July 2016) Retrieved from <http://cmfr-phil.org/in-context/lowering-the-age-of-criminal-liability-what-to-be-
considered/> (18 February 2017).
17
Joan McCord, Cathy Spatz Widom & Nancy A. Crowell, Juvenile Crime, Juvenile Justice, (National Academy
Press, 2001), 186, DOI: 10/17226/9747
Negative Position Paper (1F)

The proposal of lowering the age of criminal responsibility to nine years old is NOT

practicable under the following reasons:

First, it is not feasible and unconstitutional.

Second, reverting to the former minimum age of criminal liability would conflict with

international agreements in which the Philippines is a signatory; and

Third, the policy violates the constitutional mandate of the government that its duty is

to defend the right of children from abuse, exploitation, and other conditions prejudicial to

their development18 and under the doctrine of Parens Patriae.

The lowering of age of criminal responsibility is not feasible because we already have a

working and complete law to regulate juvenile delinquency. RA 9344, or the Juvenile Justice

and Welfare Act of 2006, is a complete law capable of regulating children who deviate from the

public peace. It consists of an intervention program19 determined by the social worker for those

children who are exempted from any criminal liability, which means that the state still has a

hand in ensuring that these children are guided to the right path. For those ages fifteen to

eighteen who acted with discernment, RA 9344 allows for a diversion program20 without

undergoing court proceedings subject to certain conditions as enumerated. These programs

ensure that the approach towards the child in conflict with the law is rehabilitative and

punitive. Thus, the law being complete, the proper solution to address the problem of rising

18
Section 3(2), Article XV, 1987 Constitution
19
Section 20, RA 9344 – Juvenile Justice and Welfare Act of 2006
20
Section 23, RA 9344 – Juvenile Justice and Welfare Act of 2006
Negative Position Paper (1F)

criminality is the proper enforcement of RA 9344. Contrary to belief, our current law still

apprehends children who commit crimes.

Additionally, the implementation of a new law will entail unnecessarily large expenses.

Currently, our prison cells are congested and it is impossible to allocate cells exclusively for the

use of children. Also, according to Sen. Ralph Recto, the annual average per inmate spending

now runs at P73,910.00, and the BJMP and BuCor’s combined food budget for 135,000 inmates

amounts to more or less P2.5 billion. With cells built for 18,881 prisoners now housing 93,961,

BJMP said its facilities are 397 percent over capacity while BuCor reports a 158 percent

overcapacity rate at present, Recto said 21. We cannot afford to spend more on children’s

punitive measures which will be counterproductive to the goals of the state.

The lowering of the age of criminal responsibility will also be unconstitutional, based on

the equal protection clause. In the case of People v. Cayat, the Supreme Court has laid down

the requisites of a valid classification:

a. There must be real and substantial distinctions;

b. It must be germane to the purposes of the law;

c. It must not be limited to existing conditions only; and

d. It must apply equally to all members of the same class.22

Children who are nine years old cannot be clumped together with adult criminals and be

treated alike, because there are a lot of substantial distinctions between a child and an adult. A

child’s reception to its environment is very important, that is why it is paramount for the state

to place the child in a surrounding conducive to his development, unlike adults, where the value

21
http://www.senate.gov.ph/press_release/2016/0830_recto1.asp, retrieved 3/3/2017.
22
People vs. Cayat, 68 Phil. 12
Negative Position Paper (1F)

formation is already finished and his character is already rigid. Being labeled as a criminal will

create a more impactful emotional scar that will traumatize the child, rendering him

unproductive and immobile. The approach to a child differs than that of an adult, because a

child requires more tender care for them to understand things. Therefore, children and adults

must not be treated in the same way, regardless of the acts of the former.

Reverting to the former minimum age of criminal liability would conflict with

international agreements and conventions. The United Nations Convention on the Rights of the

Child (UNCRC) of 1989, where one of the countries who first signed the agreement is the

Philippines, defines a child as a person below the age of 1823. As a state party to the said

convention, the Philippines is required to increase the age of criminal responsibility for

compliance. Additionally, the United Nations Standard Minimum Rules for the Administration

of Juvenile Justice, known as the “Beijing Rules,” Rule 4.1 states that:

“In those legal systems recognizing the concept of the age of criminal
responsibility for juveniles, the beginning of that age shall not be fixed at too low
an age level, bearing in mind the facts of emotional, mental and intellectual
maturity.24

This rule admits the fact that the significance of the minimum age of criminal

responsibility is that it recognizes that a child has attained the emotional, mental and

intellectual maturity to be held responsible for their actions.

Lastly, the Constitution itself mandates the state to the following duty:

“Sec. 3 – The State shall defend:

23
Article 1, United Nations Convention on the Rights of the Child of 1989
24
Rule 4.1, United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing
Rules") of 1985
Negative Position Paper (1F)

(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”25 (emphasis supplied)

By lowering the age of criminal responsibility to nine years old, the state violates this

constitutional duty. Apprehending children and placing them to state custody for punishment

will subject them to conditions which might affect their physical, emotional, and mental

faculties for their development. It will subject them into greater harm and may cause them to

be traumatized for life. Imprisonment or incarceration, or mere criminal apprehension where

children are treated as fugitives will make a negative impact in terms of how they view

mistakes.

Under the doctrine of Parens Patriae, one of the important tasks of the government is

to act as the guardian of the rights of the people. One of the most imperative duty of the

government is to make sure that the child’s interest is best catered. In the case of Cabanas v.

Pilapil, the Supreme Court ruled that the State may weigh in the balance of the interest of the

preservation of the family, versus the interest of the child, to come up to a conclusion that it

may decide what is best for both the parties26.

It is the paramount duty of the state as the Parens Patriae to consider the child as its

paramount interest. It has to make sure that every child lives a deserving life full of hope. In

choosing what’s best for the child, apprehending them and treating them as criminals for

mistakes they may have done is not the best interest for the child.

25
Section 3(2), Article XV, 1987 Constitution
26
Cabanas v. Pilapil, G.R. No. L-25843, [July 25, 1974], 157 PHIL 97-102