Statement attributable to Ms.

Lotta Sylwander
Representative, UNICEF Philippines 

MANILA, 18 January 2019 – UNICEF is deeply concerned about ongoing efforts in

Congress to lower the minimum age of criminal responsibility in the Philippines below
15 years of age. The proposed lowering vary from 9 and 12 years, and goes against the
letter and spirit of child rights. 

There is a lack of evidence and data that children are responsible for the increase in
crime rates committed in the Philippines. Lowering the age of criminal responsibility will
not deter adult offenders from abusing children to commit crimes.

UNICEF supports the Philippine government, as a signatory to the United Nations

Convention on the Rights of the Child (UNCRC), to ensure that children grow up in a
safe environment protected from crime and violence.

Sadly, lowering the age of criminal responsibility is an act of violence against children.
Children in conflict with the law are already victims of circumstance, mostly because of
poverty and exploitation by adult crime syndicates. Children who are exploited and
driven by adults to commit crimes need to be protected, not further penalized. Instead
they should be given a second chance to reform and to rehabilitate.

Scientific studies show that brain function reaches maturity only at around 16 years old,
affecting children’s reasoning and impulse control. Proposals to lower the age of
criminal responsibility argue that children as young as 9 years old are criminally mature
and are already capable of discernment. If this was the case, then why is the legal age
to enter marriage, legal contracts and employment in the Philippines at 18 years old? A
9-year old child has not yet even reached the age of puberty and their brains are not
developed to understand the consequences of actions.

The current proposal is to delay sentence up to a maximum age of 25 years. If a child is

jailed at 9 years old it means that they may have to waste away their life for 17 years
under imprisonment until they can get a sentence for the crime committed. There is no
mechanism to protect these children from cohabiting with hardened criminals and no
guarantee that in detention they will be protected from violence and exploitation in jail.

Detaining children will not teach them accountability for their actions. In order to
maximize their potential to contribute to nation-building, children must grow up in a
caring, nurturing and protective environment. This requires strong parenting support
programs and access to health, education and social services as well as to child-
sensitive justice and social welfare systems.

The current Juvenile Justice and Welfare Law, which sets the minimum age of criminal
responsibility at 15, already holds children in conflict with the law accountable for their
actions. It provides them with rehabilitation programs using the framework of restorative,
not punitive justice.

Noteworthy efforts from the judiciary and the executive agencies like the Juvenile
Justice and Welfare Council, Departments of Education and Social Welfare and
Development deserve full support of Congress, particularly on increasing life skills of
adolescent learners; establishing an evidence-based parenting program for babies all
the way through adolescence; and decreasing use of detention and increase use of
diversion and community-based mechanisms to address delinquency. UNICEF calls on
the government and civil society to focus on strengthening the implementation of this
law instead of amending it.

Branding children as criminals removes accountability from adults who are responsible
for safeguarding them. If children who have been exploited by criminal syndicates are
penalized instead of the adults who abused them, we fail to uphold the rights and well-
being of children.

If we fail to understand the underlying reasons how and why children commit crimes, we
as adults, fail our children.

The Pro’s https://www.wheninmanila.com/bill-lowering-the-age-of-criminal-liability-to-9-

is-widely-supported-by-politicians/

Politicians who support this amendment justify it by parallelizing it with other countries that
have a low criminal age. Several federal states in America operate on the common law age
of 7. The United Kingdom and Indonesia prosecute criminally from the age of 8, while Asian
countries like India and Singapore do so from the age of 7.

They also cite curbing crimes as a benefit. Individuals are starting to involve themselves in
crimes and deviant behaviors at a younger age today. There are even children who commit
rape, murder, and/or homicide. Some say it is the act and the gravity of harm that should be
judged, and the not the age of the perpetrator.
This is in line with the fact that the bill punishes on the basis of intent. A crime committed by
those above 9 but under 18 will only be prosecuted if proven to be premeditated. This
means that the crime had to be clearly planned or deliberate to be an offense.

The most critical and controversial provision in House Bill 8858 (and this also applies to the above-
mentioned Senate bills) is the provision (HB Section 4) amending the current law, by lowering the
minimum age of responsibility of children in conflict with the law from the current 15 years of age to
12 years of age. Further, HB Section 2 states that a child 12 years of age and above but
below 18 years of age “who has acted with discernment…shall be subjected to the appropriate
intervention and diversion proceedings...”

Allow us then to enumerate and explain the reasons why we object to the lowering of the minimum
age of responsibility of “children in conflict with the law” (previously termed minimum age of
criminal responsibility) to 12 years old.

1. Discernment

House Bill 8858 subjects the child who “acts with discernment” to
“intervention and diversion proceedings.”

The standard dictionary definition of discernment is: “The act or process of exhibiting keen insight
and good judgment.” The capability to discern thus goes beyond having access to full information
and being rational.

Discernment requires intellectual, psychological, and emotional maturity, which is a challenge to

children and adolescents.

However, Section 22 of the existing law, which House Bill 8858 retains, is vague in its definition and
determination of discernment, except to say that “the local social welfare and development officer
shall conduct an initial assessment to determine the appropriate interventions and whether the child
acted with discernment, using the discernment assessment tools developed by the DSWD”
[Department of Social Welfare and Development]. (1) Section 8 of House Bill No. 8858 seeks to add
context through an amendment to “include identification of physical and mental health issues,
substance abuse and family issues” in the assessment, although it is unclear if the presence of these
issues will be considered as
mitigating circumstances in determining the child’s discernment.

We wish to cite evidence drawn from studies taking into account brain and behavioral development
in the Philippine context, which shows that the age of discernment for children is between 15 and 18
years old.

For reference, see: 1) Pamantasan ng Lungsod ng Maynila, “Beyond

Innocence,”1997, a research commissioned by the Philippine
government’s Council for the Welfare of Children and 2) Philippine
Action for Youth Offenders, “Arrested Development,” 2002. “Beyond
Innocence” sets the age of discernment for Filipino schoolchildren at 15 years old. “Arrested
Development” establishes the discernment age of outof-school children at 18 years old.
More recently, the Philippine Pediatric Society states in its position paper (undated) that:
“Neuroscience research has proven that the brain does not fully develop until the age of 25.”

This is in agreement with Johnson Sara B., Blum, Robert W., and Gledd, Jay N., “Adolescent
Maturity and the Brain: The Promise and Pitfalls of Neuroscience Research in Adolescent Health
Policy,” J Adolesc Health, 2009 September 45(3): 216-221. To quote this journal article:
“Longitudinal neuromanaging studies demonstrate that the adolescent brain continues to mature well
into the 20s.”

This is the kind of evidence that informs the current legislation titled
Juvenile Justice and Welfare Act of 2006 or Republic Act (RA) No. 9344, which states that a “child
fifteen (15) years of age or under shall be exempt from criminal liability.” Further, RA No. 9344 says
that 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….”

Some quarters will point out that United Nations Convention on the Rights of the Child General
Comment No. 10 (UN CRC GC 10) considers the minimum age of criminal responsibility below the
age of 12 years as “internationally acceptable.” But in the same breath (paragraph 32), it says: “States
parties are encouraged to increase their minimum age of criminal responsibility…to a higher level.”
Moreover, in paragraph 33, the UN CRC GC 10 “urges States parties not to lower their minimum age
of criminal responsibility to the age of 12.”

Clearly then, reducing the minimum age of criminal responsibility in the Philippines from the present
age of 15 years old to the age of 12 years old is a serious retrogression. House Bill 8858 and Senate
Bills 1603 and 2026 ignore the evidence drawn from the specific Philippine context and from
neuroscience research, and they violate the spirit of the international convention.

2. Consistency of Legislation

Legislation concerning children and adolescents must be consistent with other laws. Philippine
legislation and other rules are aware of the constraints on the intellectual, psychological, and
emotional maturity of adolescents.

Examples abound. One cannot get married if he or she is under the age of 18 years old. And one must
be at least 21 years old to get married without parental consent. A requirement for voting is that the
citizen should be 18 years of age and above. The minimum legal age is 18 years old for any person to
buy, sell, or smoke tobacco and alcohol products. In a word, the age of 18 years is the age of majority
in the Philippines.

In short, House Bill 8858 and Senate Bills 1603 and 2026 contradict the intent and substance of other
pieces of legislation that govern the behavior of adolescents.

Some make the fuss that House Bill 8858 and Senate Bills 1603 and 2026 distinguish the treatment
as between adults and adolescents (from 12 years of age to below 18 years of age). Adolescent
offenders who commit serious crimes will be placed mandatorily within a youth care facility or
Bahay Pag-asa, while adolescent repeat offenders (not necessarily of serious crimes) shall undergo an
“intensive intervention program” that includes placement in a youth care facility or Bahay Pag-asa
(Sections 4 and 5 of HB 8858). By definition, the physical mobility of residents of these centers may
be restricted pending court disposition of charges against them (Sections 4.s and 4.t of RA 9344).
The existing law allows the imprisonment of not more than 12 years (as maximum penalty) but
also authorizes institutional care and custody as part of a court-level diversion program (Sections 37
and 31.c.5 respectively of RA 9344).

3. Effectiveness and Efficiency

We question the effectiveness and efficiency of reducing the minimum age of criminal responsibility
to 12 years old in deterring crime and participation of juveniles in criminal activities.

The proposal merely addresses the technique (or the technology) that uses juveniles as accessories to
commit crimes. But criminals will adapt and will use a different strategy and technique in response to
the change in the rule. In designing rules, we anticipate the change in behavior of subjects. Behavior
has variations and can move towards different directions, depending on the rule design.

Like any other person, a criminal has a “feasible set of alternatives,” constrained by his human,
financial and technological resources. In this case, lowering the age of criminal responsibility does
not deter commission of the crime because the criminal will look for an alternative way to commit
the crime. He can, for example, deploy other children who are below 12 years old to commit the
crime!

Using children between the age of 12 years old and 18 years old to commit crime will not stop either.
Consider their attributes: They lack discernment (based on the scientific evidence); they do not have
full information about the law and its consequences; they do not make a calculus of the costs of
criminal behavior; they are prone to increased risktaking and novelty-seeking activities; they can be
easily coerced to follow orders.

The design of the law therefore must avoid unintended perverse

consequences. Strategic action requires focusing the work on capturing the head and the core of the
criminal syndicates, not the minors.

It goes without saying that the effective strategy in discouraging crime is by increasing the
probability of capture and conviction of criminals, making punishment and fines credible, and
tackling the social and economic causes of crime.

4. Fairness

To be sure, the main causes of crime, especially crimes against property where children are involved,
include poverty, lack of education, and lack of productive opportunities or gainful employment.
Thus, the majority of children who commit crime come from the poor. Yet, the statistics from the
Philippine National Police (January 2002 to December 2012) show that children commit only two
percent of the total number of crimes.

The predictable outcome of further reducing the minimum age of criminal responsibility is having
more children from poor families being detained or imprisoned. A sledgehammer is being used to
crack a nut, as it were, considering that the children account for a tiny fraction of total crimes. The
House Bill 8858 and Senate Bills 1603 and 2026 are fixated on an outlier in the system, but one
which adversely affects mostly the poor.

5. Social Norms
The field of law and economics recognizes how formal laws co-exist with social norms. Social norms
are shared, observed and enforced by society in general, without need to resort to legalese. These
social norms include the respect and care for the elderly or senior citizens and the children or
juveniles.

Legislation must not undermine a social norm of the whole of Philippine society—the care and
protection of children. Such a norm can partly explain why children are shielded from the
commission of crimes (as shown by the statistics that children commit only a small fraction of
crimes). Yes, even criminals cannot escape the social norms. As a custom or as a norm, making
children become evil is simply not done.

Another example in the law that contradicts Filipino social norms pertains to the intent and use of the
youth rehabilitation centers and Bahay Pagasa. Ostensibly, they are for rehabilitation. But section 4.s
and 4.t of RA 9344 design them as a place of detention when the law allows the physical mobility of
children to be restricted pending court disposition of the charges. Will detention, particularly the
involuntary type, serve rehabilitation and restorative justice?

Essential to Filipino social norms is the role of the family unit in the
development of a child. Similarly, community spirit and cooperation are part of our social norms. In
this light, the locus of rehabilitation and restorative justice is the family and the community;
separating vulnerable children (those ages 12-15 years old with more impressionable minds) from
their families, without providing proof that the alternatives offer greater opportunities for resolving
the issues that caused the children to commit offenses in the first place seem illogical. Detention in
an impersonal center pushes children away from society, which is more likely to make them
recidivist and turn them into hardened criminals.

Compounding the problem is the lack of Bahay Pag-asa facilities.

According to the Juvenile Justice and Welfare Council (JJWC), only 35 of the 114 (the mandated
number) Bahay Pag-asa facilities are fully operational. This means that a significant number of the
detained juveniles will have to be transferred to prisons occupied by adult convicts. Accounts also
reveal that some of the Bahay Pag-asa centers are “worse than prisons.” The Executive Director of
JJWC told Philippine Star (January 29, 2019) that some of the facilities have “subhuman conditions.”

Here, we can infer that politicians in local government units have a weak commitment to improving
the infrastructure and service of Bahay Pagasa. The incentive is weak because the children in the
Bahay Pag-asa, after all, do not vote, and their families are disempowered.

In conclusion, we appeal to the legislators in both the House of

Representatives and the Senate to set aside or do away with House Bill 8858 and Senate Bills 1603
and 2026. They fail the criteria we have set, in terms of discernment, consistency of legislation,
effectiveness and efficiency, fairness, and social norms.

The evidence and the science, together with the application of law and economics that we have
learned from our profession and discipline, tell us that the bills’ controversial measures will result in
worse outcomes for our children and our society.

In this light, we express solidarity with the concerned sectors of society, including the other
professional associations, which have articulated well-argued positions and expressed opposition to
the said bills.
 Our position paper acknowledges that the existing legislation on juvenile justice has its weaknesses.
For that matter, no law is perfect.

From our discipline, we are aware that the so-called first-best option does not necessarily produce the
best outcome in the real world. Similarly, while the law is supposed to result in providing the most
benefits for society, the minimum necessary condition is to ensure that the law will cause the least
harm to our people. In this context, the Juvenile Justice and Welfare Act of 2006, despite its flaws, is
an improvement, and it causes least harm in comparison to House Bill 8858 and the pending bills in
the Senate.

We instead urge our legislators to affirm the implementation of the

Juvenile Justice and Welfare Act of 2006 and seek ways to improve its practice by emphasizing
restorative, not punitive, justice.

What we seek, to quote the late Senator Pepe Diokno, is “a nation for our children.” -- 28 January
2019

ENDNOTE:                                                                                                                                         

(1) Page 6 of DSWD Administration Order 10 (2007) stated that discernment will be based on:
(i) facts and circumstances surrounding the case; (ii) educational level and performance of
the child in school; (iii) appearance, attitude and child’s demeanor before, during and after
commission of the offense; and (iv) assessment of a psychologist/psychiatrist which the
social worker may request. We contend that these may still lead to arbitrary and subjective
judgments.
news.abs-cbn.com/focus/02/01/19/opinion-position-paper-of-the-up-school-of-economics-
alumni-on-bills-lowering-the-minimum-age-of-criminal-responsibility

Criminal Responsibility of Adolescents: Youth as Junior

Citizenship

Children below a certain age are too young to be held responsible for breaking
the law. There is wide consensus about this principle, which is spelled out in the
Convention on the Rights of the Child and in other international standards,
such as the Beijing Rules for juvenile justice. The Convention calls for nations to
establish a minimum age “below which children shall be presumed not to have
the capacity to infringe the penal law”. And since the beginning of this year
(2008) it sets 12 as the minimum age, explicitly. Worldwide, though, there is
continuing debate about the appropriate age. This debate too often tends to
arise when exceptional cases involving children who have committed heinous
offences are given prominent coverage by the media. Sometimes this has far-
reaching consequences.

 In England, children have become fully accountable for offending at 10

since the murder of two-year-old James Bulger by two young boys, both 10, in
1993. In New South Wales, the 1999 manslaughter trial of an 11-year-old boy for
throwing his 6-year-old companion into a river attracted widespread comment
and the NSW Attorney-General started a review of the age of criminal
responsibility of children. In Japan, the minimum age was lowered from 16 to
14 in 2001 following public outrage over the brutal beheading of a little boy by a
14-year-old in 1997. The murder of another youth by a 12-year-old in 2003 in
Nagasaki prompted the discussion again. In the USA, the state of Arkansas
lowered the age at which young people could be tried as adults for murder to age
11, after an 11-year-old and a 13-year-old killed a youth with rifles at the
entrance to their school. In the Czech Republic the minimum age is 15, but the
Minister of Justice is considering lowering the age for particularly serious
crimes, since in August 2006, six boys under the age of 15 robbed and killed an
elderly woman and in February 2007 a 14-year-old boy confessed to the rape
and murder of a classmate. Ido Weijers Thomas Grisso

https://link.springer.com/chapter/10.1007/978-0-387-89295-5_4