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com
Lowering the Age of Absolute Irresponsibility: Amending Section 6,
Chapter 2, Title 1 of R.A. 9344

Insight on Current Issue
by: Manolyn A. Collado Jr.

Criminal Intent Required
Actus non facit reum nisi mens sit rea which means ―the act itself does not make a man
guilty unless his intentions were so.‖ This is a requisite for one to be held criminally liable for
felonies committed by means of deceit (dolo).
1
Intent is a mental state, the existence of which is
shown by the overt acts of a person.
2
The court in People vs. Doqueña states that xxx we must
take into consideration not only the facts and circumstances which gave rise to the act committed
by the minor, but also his state of mind at the time the crime was committed.
3
Thus, there is no
felony by dolo if there is no intent.
An accused, who is a minor, shall be exempted from criminal liability provided he
committed the crime during his tender age and is coupled with the absence of intent. In
expounding on the element of dolus, Albert has stated: ―The second element of dolus is
intelligence; without this power, necessary to determine morality of human acts to distinguish a
licit from and illicit act, no crime can exist, and because ... the infant (has) no intelligence, the
law exempts (him) from criminal liability.
4
‖ It is thus presumed that in the eyes of a child, there
is a mistake of fact as to the right and wrong and is thus excusable. It is then deemed important
to categorize those who should benefit from this doctrine.
Response to Reality
The legislative branch, in compliance with several international agreements,
5
passed the
Juvenile Justice and Welfare Act of 2006 (R.A. No. 9344).
6
Herein, child was referred to as
persons under the age of eighteen (18) years.
7
Those who enjoy absolute criminal responsibility
are, to wit;
A child (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 the Act.
8

Nonetheless, children are developing at a quicker rate than previously. Today, given
technological era, children have a greater understanding of the world.
9
According to Senator
Francis ―Chiz‖ Escudero, ―youths of today are more knowledgeable, even minors, as held

1
Article 3, Revised Penal Code
2
Soriano vs. People, 88 Phil. 368, 374
3
People vs People vs Doqueña 68 Phil. 580
4
Guerra vs. Almodovar G.R. No. 75256 January 26, 1989
5
United Nations Standard Minimum Rules for the Administration of Juvenile Justice or ―Beijing Rules,‖ United
Nations Guidelines for the Prevention of Juvenile Delinquency or the ―Riyadh Guidelines,‖ and the United Nations
Rules for the Protection of Juvenile Deprived of Liberty.
6
Section 72, R.A. No. 9344
7
Section 4 (c), R.A. No. 9344
8
Section 6, R.A. No. 9344
9
Ohio State Journal of Criminal Law (Volume 2: 493) Age and Criminal Responsibility by Gerry Maher (Professor
of Criminal Law, University of Edinburgh; Scottish Law Commissioner)

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relevant from the past).
10
This suggests a need to amend aforementioned provision to pace with
the changing minor’s mental capacity.
News recently erupted focusing on the ―batang hamog‖ or ―Spider Gang‖ whereby
youths engaged in notorious ―bukas-taxi‖ modus operandi in the vicinity of Makati, especially
along the length of the Epifanio delos Santos Avenue (EDSA) in Guadalupe.
11
Brought by this
incident, the Senate committee on justice and human rights is ready to submit to the plenary a
measure suspending the continued implementation of R.A. 9344. The reason why there is a need
to amend aforesaid section was because the very nature for its enactment – to give minors a
better chance in society. However, since it was enacted, law enforcers and even social workers
have blamed R.A. 9344 for the widespread commission of criminal activities involving minors
who know that they cannot be charged in court, even if they are caught red-handed or positively
identified by their victims. It thus appears that the intention of the law which is to reform the
delinquent minor is derailed.
One of the loopholes of law is that it failed to foresee the concerted efforts between
syndicates who use minors as principals by direct participation in the commission of the crime. It
was not anticipated that syndicates would illegally resort to this.
12
Ones they have executed the
crime, law enforcers have no power to detain them because of this law. Only birth certificate as
get-out-jail-for-free cards is needed.
13
Many nonetheless had contempt this amendatory proposal.
Leading herein is the Commission on Human Rights Chairperson Loretta Ann ―Etta‖ Rosales
and Senator Francis Pangilinan, the main author for the law. Commissioner’s contention that it
goes against international standards and violates Republic Act 9344 is bereft of legal basis.
14
Similar case held with Senator Pangilinan’s contention that it is not scientifically and
psychologically supported.
Evaluation of Contentions
The contention that it transgresses international standards, whereby the Philippines is a
signatory, is legally blinded. Section 1(d), Chapter I, Title I of R.A. 9344 states that:
Pursuant to Article 40 of the United Nations Convention on the Rights of the Child
15
, 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 child’s
sense of dignity and worth, taking into account the child’s 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, providing 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, counselling, probation, foster care,
education and vocational training programs and other alternatives to institutional care.

10
Senate to approve Juvenile Law Suspension

11
Zen Hernandez. Cops can’t Jail ―bukas-kotse‖ youths ABS-CBN News
12
Annabelle L. Ricalde. Lawyer Jose A. Fabia, director general of the Philippine Information Agency (PIA), told
Sun Star Cagayan de Oro. February 3, 2011.
13
Section 7, R.A. 9344 Determination of Age – The child in conflict with the law shall enjoy the presumption of
minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen
(18) years of age or older. The age of a child may be determined from the child’s birth certificate, baptismal
certificate or any other pertinent documents. In the absence of these documents, age may be based on information
from the child himself/herself, testimonies of other persons, the physical appearance of the child and other relevant
evidence xxx
14
Jon Carlos Rodriguez, CHR chair opposes lowering the age of criminal liability to 9. Abs-cbnNews.com
15
UN Convention on the Rights of the Child which had been ratified in the Philippines on July 1990 and become
effective on September 2 1990

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In addition thereto, the Beijing Rules states that the age of criminal responsibility ―shall
not be fixed at too low an age level, bearing in mind the facts of emotional, mental and
intellectual maturity.‖
16
It is thus evident that appurtenant international agreements left the
discretionary authority of determining the age of absolute irresponsibility on state’s municipal
law. The doctrine of incorporation
17
, constitutionally enunciated, and pacta sunt servanda with
respect to the rule on the principle on par in parem non habet imperium (concept of legal
equality)
18
should be harmonized.
States, signatories of the same, had enacted their respective municipal laws. The table
below shows states’ adopted age of absolute irresponsibility.
Country Age Notes
Mexico
6–
12
Most states 11 or 12 years; age 11 for federal crimes.
United States
6–
12
Age determined by each state; the minimum age is 6 (North
Carolina),

[19][20]
however, only 15 states have set minimum
ages, which range from 6 to 12 years. States without statutory
minimum ages rely on common law, which means that 7
[21]
is
the minimum age in most states; for federal crimes the age has
been set at 11.
India 7

Myanmar 7

Nigeria 7

Pakistan 7

Singapore 7

Sudan 7

Tanzania 7

Thailand 7

Indonesia 8

Kenya 8

Bangladesh 9

Ethiopia 9

Iran
9–
15
Age 9 for girls, 15 for boys
Australia 10 Presumption of incapacity of committing crime: 14.
[22]

England and 10
[23][24]

16
Beijing Rule 4.1
17
Section 2, Article II, 1987 Philippine Constitution. xxx adopts the generally accepted principles of international
law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom , cooperation, and
amity with all nations.
18
Even the strongest state cannot assume jurisdiction over another state, no matter how weak, or question the
validity of its acts in so far as they are made to take effect within its own territory. (Cruz Isagani: International Law
(2000) p.107)
19

"Children in the US Justice System". Amnesty International USA

20
Saving a generation of young people by Dr Don Brash, Justice, 2005

21

"Old enough to be a criminal?". UNICEF United Nations Children's Fund

22

Ages of criminal responsibility in Australian jurisdictions, Australian Governments official website

23
The Children and Young Persons Act 1933 (23 & 24 Geo.5 c.12), section 50; as amended by The Children and
Young Persons Act 1963 (c.37), section 16(1)


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Wales (UK)
Northern
Ireland (UK)
10
[25]
Nepal 10

South Africa 10

Switzerland 10

Turkey 11

Scotland (UK) 12

Canada 12
[26]
Ireland 12
[27]
Israel 12

Japan 12
[28]
Morocco 12

Netherlands 12

South Korea 12

Uganda 12

Algeria 13

France 13

Austria 14

China 14
Absolute minimum for acts that constitute the following
crimes: homicide, wounding resulting in death, rape, robbery,
arson, explosion, planting of toxic substances and trafficking in
dangerous drugs. The minimum age for other crimes are 16. In
Hong Kong, the minimum age is 10
[29]
and in Macau, 16
Estonia 14

Germany 14

Hungary 14

Italy 14

New Zealand 14
Children in New Zealand can be charged with murder or
manslaughter from age 10, several very serious offenses from
the age 12, and all other offences from the age of 14.
[30]

Romania 14

Russia 14
16 by default, 14 years specifically for crimes as listed in
Section 20 of the Criminal code, like murder, rape, robbery,
extortion, kidnapping, motor vehicle theft, terror attack,
stealing restricted substances like explosives or narcotics,


24
Young offenders section of the UK Governments official website

25

Report on the Draft Justice (NI) Bill of the Northern Ireland Assembly's official website

26

Criminal Code of Canada, s. 13; may received reduced sentencing under the Youth Criminal Justice Act until age
18.

27

Children and the criminal justice system in Ireland, Irish Government official website

28

Japanese Penal Code (Act No.45 of 1907), article 41

29

Section 3 of the Juvenile Offenders Ordinance 2003 (Chapter 226, Laws of Hong Kong)a

30
http://www.legislation.govt.nz/act/public/1989/0024/latest/DLM153418.html?search=qs_act_murder+manslaughte
r+10+years_resel&p=1&sr=1


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aggravated anti-social behaviour, vandalism, false report of a
terror attack
Slovenia 14

Spain 14 31

Ukraine 14

Vietnam 14

Czech
Republic
15

Denmark 14 14 as of July 1, 2010

Egypt 15

Finland 15

Iceland 15

Norway 15

Sweden 15

Uzbekistan 15

Portugal 16
Currently being studied the possibility of lowering the age of
criminal responsibility to 14. From age 12 to 15 children are
kept in juvenile correction centres.

Poland 17
Official age of criminal responsibility; from age 12, children's
actions are subject to juvenile legal proceedings.
Argentina 18

Belgium 18

Brazil 18
Official age of criminal responsibility; from age 12, children's
actions are subject to juvenile legal proceedings.
Colombia 18
Official age of criminal responsibility; from age 12, children's
actions are subject to juvenile legal proceedings.
Peru 18
Official age of criminal responsibility; from age 12, children's
actions are subject to juvenile legal proceedings.
DR Congo 18

Some states refuse to set a fixed minimum age, but leave discretion to prosecutors to
argue or the judges to rule on whether the child or adolescent ("juvenile") defendant understood
that what was being done was wrong. If the defendant did not understand the difference
between right and wrong, it may not be considered appropriate to treat such a person as culpable.
Second, the contention that it violates Republic Act 9344 is unconstitutional for this
would acknowledge irrepealable laws thus limiting the power of incumbent legislatures.
32
Lastly,
Senator Pangilinan’s contention that it is not scientifically and psychologically supported is
absence of factual basis. Prior to the adoption of R.A. 9344, Philippines had already pertinent
laws involving the absolute irresponsibility of minors.
First is the circumstances which exempt from criminal liability. A person under nine
years of age or 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 Article 80 of this Code.
33
Second is THE CHILD AND YOUTH WELFARE

31

Ley Orgánica 5/2000, de 12 de enero, reguladora de la responsabilidad penal de los menores

32
Atitiw vs. Zamora 471 SCRA 329
33
Article 12 (2 and 3) Revised Penal Code

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CODE.
34
Herein, a child nine years of age or under at the time of the commission of the offense
shall be exempt from criminal liability and shall 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. The same shall be done for a child over nine years and under fifteen years of age at
the time of the commission of the offense, unless he acted with discernment, in which case he
shall be proceeded against in accordance with Article 192.
35
The provisions of Article 80
[36]
of
the Revised Penal Code are repealed by the provisions of aforesaid code.
The contention then of Senator Pangilinan for the hearsay facts and absence of concrete
scientific and psychological evidence is doubting. This would implicate that enactors of said
laws merely indicated therein said provisions because of personal views and without any
supportive facts. This would as well imply that there is constancy on child’s mental development
and limiting the view on ceteris paribus principle.
Based from an empirical data, from about ages 6 to 12, children acquire heightened
capacities for judgment, reasoning, social understanding, emotion management, and self-
awareness. At the same time, the social world of middle childhood broadens beyond the family
to include the school, neighborhood, peer group, and other influences. Children begin to perceive
themselves in multiple roles and relationships besides those of the family, even though family
relationships remain central.

In contrast to the rapid physical development of the earlier years, children grow more
slowly and gradually during middle childhood. Even so, children who are well nourished gain
about 6 cm (2.5 in) in height and 1.8 to 2.3 kg (4 to 5 lb) in weight each year. Children typically
become slimmer as their body proportions change. Muscular growth and better coordination
enable children to ride a bicycle, run faster and for longer distances, participate in organized
sports, write neatly with a pencil, learn to sew, and acquire other skills that require greater
strength, endurance, or precision than younger children can manage. Brain growth contributes to
these physical achievements, especially as brain pathways governing sensation, action, and
thinking become speedier.

Older children also begin to master and enjoy their intellect. They become more
consciously aware of their mental processes—such as what it takes to memorize a spelling list or
remember a specific past event—and can deliberately enlist their cognitive powers to accomplish
their goals. For example, they enlist memory strategies that strengthen their recall of experiences
and information. Older children seem to think more quickly than younger children (and many
adults) because they know how to do so. They spontaneously monitor and evaluate their progress
and thus correct and improve their work. They are more likely to use external aids, such as
writing things down, to help them think. These qualities make older children more capable and
motivated learners.
Many other cognitive skills also improve. Reading and mathematical ability advances
significantly, along with vocabulary and grammatical skills. Many children begin to learn a
second language in middle childhood. Children’s knowledge of many specific topics that interest
them expands dramatically, whether of planets, dinosaurs, or rock stars. Capacities to read music
and master a musical instrument grow significantly. Although children at this stage are still
rather concrete thinkers—that is, abstractions and hypothetical issues are hard for them to
understand—they have the intellectual skills to function competently in the adult world.
37

Before the time of Marcos, the Juvenile and Domestic Relations Courts viewed the minor
as a victim not as an aggressor.
38
The problem is that we are living in the past. The present
scenario and reality is navigating the society. Even policemen are also complaining and objected

34
P.D. 603 (December 10, 1974)
35
Article 189, Chapter III, P.D. No. 603
36
Suspension of sentence of minor delinquents clause
37
Thompson, Ross A. "Child Development." Microsoft® Encarta® 2009 [DVD]. Redmond, WA: Microsoft
Corporation, 2008.
38
Marianne Murdoch-Verwijs, LLM. Juvenile Justice in the Philippines – A Personal Experience (Free University,
Amsterdam).

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to RA 9344 because of the one instance wherein a 14-year-old from one of the barangays in the
city murdered his own brother but authorities did not file a case against him because of his age.
City Police Director Benedicto Lopez said that minors were being trained as ―akyat bahay‖ (a
term used to refer to those who break into houses to steal) because they can easily enter a house
through a small entrance. Aside from this, Lopez added that most of the snatchers and
pickpockets in the city are minors. When arrested, they are eventually turned by the police over
to the Department of Social Welfare and Development (DSWD) or to other concerned agencies
for custody.
39
If the passed governs, then the there is no accused. The passive and object subject
are both victims leaving no one with criminal liability.
Points as to the emphasis should be on the syndicates abusing minors as principals is
unnecessary. Revised Penal Code already provides a punishment for principals who directly
force or induce others to commit it.
40
Those who committed a crime with the aid of persons
under fifteen (15) years of age is as well provided.
41

The amendment proposed herein, is limited to absolute criminal irresponsibility but shall
be subjected to civil liability. Human Relations on Civil Code states that, ―Every person who,
contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for
the same.‖
42
Civil liability shall devolve upon those having such a person under their legal
authority or control, unless it appears that there was no fault or negligence on their part.
43


Conclusion and Foreseeable Fruits

Lowering the age of absolute criminal irresponsibility will not eliminate minor
delinquents but will aid in decreasing the same. Mathematical probability will reduce juvenile
delinquents because the age of irresponsibility, as held relevant from the range mentioned in
governing law, is minimized. The aggressiveness of minors, because of their cloak of immunity
and impunity, shall be reduced significantly. The feared concerted syndicates using minors as
principals for the crime shall as well be lessened. As stated by Director Lopez, syndicates trained
minors. With this amendment, persons nine (9) years of age shall be easier to capture as held
relevant from full bodied and powerful minors’ age fifteen (15).
Lowering the age of absolute irresponsibility to nine (9) year of age is not only proper,
being well established above, but also this increases the safeguards accorded to law abiding
citizens. This would, if accrued, lead to a well established and harmonious society. It has been
jurisprudentially verified that every person must in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and observe honesty and good
faith.

39
Annabelle L. Ricalde Sun Star Cagayan de Oro. February 3, 2011
40
Article 17, Title II, RPC
41
Article 14(20), Chapter 4, Title I
42
Article 20, Chapter 2, R.A. 386
43
Article 101, RPC