Sec. 6.

Minimum age of criminal responsibility

A child fifteen (15) years

Sec. 6. Minimum age of criminal responsibility

A child above fifteen (15)

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.

years but below eighteen (18) years of age shall likewise be exempt from criminal liability, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings (Diversion Program) in accordance with this Act.

INTERVENTION

DIVERSION

a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counselling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being.

an alternative, childappropriate process of determining the responsibility and treatment 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

1.

The authority having initial contact shall cause the immediate release to the custody of his parent/guardian, or in the absence thereof, the childs nearest relative.
a). The term initial contact refers to: (i) the apprehension or taking into custody of a CICL either by the law enforcement agents or by a private citizens (ii) receipt of a subpoena in connection with the conduct of a Preliminary Investigation (iii) receipt of summons under the Rules on Summary Procedure b). The turn over shall be immediately but not later than 8 hours after apprehension

2.

If the parents, guardians, or nearest relatives cannot be located, or if they refused to take custody, the child may be released to any of the following: a. duly registered NGO or religious organization

b. a barangay official or a member of the Barangay council for the Protection of Children
c. a local social welfare and development officer d. the DSWD

3. If the child has been found by the Local Social Welfare and Development Officer to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or local SWDO

4. If detention is necessary, the child shall be secured in quarters separate from that of the opposite sex and adult offenders

A. First Step. Face-to-Face Initial Confrontation with the Victim

1. Where the impossible penalty is not more than 6 years imprisonment, the following shall be conducted by the law enforcement officer or Punong Barangay with the assistance of the local SWDO: a) mediation b) family conferencing and conciliation c) appropriate indigenous modes of conflict resolution in accordance with the best interest of the child

2. In victimless crimes where the penalty is not more than 6 yeas of imprisonment, the local SWDO shall meet with the child and his/her parents or guardians for the development of the appropriate a diversion and rehabilitation program 3. Where the impossible penalty for the crime committed exceeds 6 years imprisonment, diversion measures may be resorted to only by the court. In case the penalty imposable is not more than twelve (12) years.

B. Second Step: Execution of a Contract of Diversion

1.

If the child voluntarily admits the commission of the act, a diversion program shall be developed taking into account the following factors: (i) The childs feelings of remorse for the offense committed (ii). The parents, or legal guardians ability to guide and supervise the child (ii). The victims view about the propriety of the measures to be imposed (iv). The availability of community-based programs for rehabilitation and reintegration of the child a. (Privilege character of the admission).The admission shall not be used against the child in any subsequent judicial, quasi-judicial or administrative proceedings

2. The diversion program shall be reduced into writing and shall be effective and binding if accepted by the parties in writing and signed by the parties and concerned authorities

C. Third Step: The CICL shall present himself/herself to the competent authorities that imposed the diversion program at least once a month for reporting and evaluation of the effectiveness of the program.
1.

If the CICL fails to comply with the terms and conditions of the Contract of Diversion, as certified by the local SWDO, the offended party shall have the option to institute the appropriate legal action. The period of prescription of the offense shall be suspended during the effectivity of the diversion program, but not exceeding a period of two years ( Section 26)

2.

The Juvenile Justice and Welfare Act of 2006 or RA 9344 has been put into issue with the rising crimes involving youth offenders. Calls for the lowering of age of exemption from criminal liability became widespread. Congressman Neil Tupas proposed a bill lowering the age of exemption of criminal liability of minors to thirteen years old. Senator Chiz Escudero claimed that the children today are more mature than the previous generations due to their exposure to the internet and social media platforms, hence a need to amend the law.

In Davao City, a 13 year old boy was stabbed nine (9) times by his classmate also 13 years old, outside their school in Porras elementary school in Barangay Duterte in Agadao District. Before stabbing, the two minors had a squabble, the victim was attacked by his classmate on his way home

In Barangay Loyola Heights , Quezon City, Police arrested four (4) minors for allegedly raping a 15-year-old girl. The victim said that she felt dizzy after drinking alcohol, which she said was laden with "vetsin". She was then overpowered by the suspects, who caught her in a headlock and covered her mouth with a handkerchief until she lost consciousness.

In Bocaue Bulacan, two 15-year olds were arrested by local policemen in barangay Igulotfor allegedly raping their 15-year old friend at a vacant lot.
And in Guiguinto Bulacan, a 12 year old boy was arrested while his young cohort escaped after they robbed the Botika ng Bayan in Barangay Sta. Cruz. The suspects entered by destroying the roof.

A total of 2,158 cases involving minors were reported to Philippine National Police Women and Children Protection Center
half of them theft cases committed from January to December of 2008, cases of drug use also raised by 13%, from 113 in 2007 to 145 and 208 reports involving youth offenders, seven incidents more than 2007 total.

In 2010, there has been 4,246 children in conflict with the law mostly committed property-related crimes (PNP,2010). Theft was the highest (1,631 cases) and Robbery was the third highest.

The age of criminal responsibility acts as the gateway to the criminal justice system under a certain age you are kept out. Most jurisdictions have this age barrier because it is widely understood that children need sheltering from the criminal law consequences of their behaviour until they are developed enough to understand whether their behaviour is wrong or the lack of the required mens rea. Such rationale in believing that children are incapable of determining the right from the wrong paves the way in pegging age brackets granting criminal immunity to children.

In our jurisdiction, children 15 years old and below pursuant to section 6 of R.A. 9344 are criminally exempt from criminal liability.
In the Netherlands, the age is 12, in Belgium 18, in

Canada the age is 12 and in the United States it varies between 16 and 18. In China, children from ages 14 to 18 are dealt with by juvenile justice, in Japan offenders below the age of 20 are tried in a Family Court rather in a criminal court system. The minimum age in Bangladesh, India, Myanmar, Thailand and in Singapore the age of criminal responsibility is lpegged at 7.

If an age of criminal responsibility was a matter of applying developmental psychology, then even allowing for crosscultural differences, why was there such disparity in the ages adopted?

On a theoretical level, Maher, Gerry, drew conclusions from his research, "Age of Criminal Responsibility, the two different ways in which a legal system could deal with "the age of criminal responsibility".

In the first sense, this is the age below which a child is deemed to lack the capacity to commit a crime, or simply, immunity in the age of criminal liability in the capacity sense.

By contrast another sense of age of criminal responsibility is the point at which the age of a suspect or offender has no relevance for his treatment or disposal as part of the criminal justice system, most typically the age at which an accused person becomes subject to the full, or adult system of prosecution and punishment. In our jurisdiction, the exemption of children below 15 years old and below from the judicial proceedings or prosecution. (Process Based)

Maher, further suggests that it is the second sense of criminal responsibility that should be dealt with.

The second sense refers to the answerability or the process by which a person is held responsible for his conduct should be given preference.
If such would be the case, there is no need for the

pegging of age of criminal responsibility of children and immunity from criminal liability.

What we are currently using is the first sense of the age of criminal responsibility which is the capacity sense.
The problem posed in this type is for the children to either be

absolutely exempt from criminal liability or to be subject in an adult process and punishment to be answerable for his conduct. What he noticed is that there is the lack of system appropriate for children who can be made answerable or accountable for their actions and at the same time considers the penalty to be age appropriate.

We can totally abolish the age of exemption and focus more on the process by which children regardless of age can be subject of criminal justice system but which is also considerate of the age of the accused of convicted in terms of the process and penalty to be taken. The system would refer from the custody to trial and in cases applicable to service of sentence or rehabilitation programs.

In the crimes and cases cited above, one will notice that more often than not, victims who are also minors especially victims of rape are on the losing end. We have seen the regret of the courts in People v. Ortega, G.R. No. 151085, 276 SCRA166 stating that much to their regret, the accused was acquitted because of the immunity granted by the law for children 15 and below. However, the law failed to consider the situation wherein the parties in the cases namely, the accused and the victim are both minors. In this kind of situation, still, the provisions of the law on the protection of the child offender is given more preference than the victim who is also a minor.

The law provides though for the civil liability, however, child offenders came mostly from poor families and have no means of income. The victim, again is on the losing end and left emptyhanded since the families of those children accused of crimes have no means to compensate for the damages incurred by the victims and their families.

Section 43 of RA 9344
All records and proceedings involving children in

conflict with the law from initial contact until final disposition of the case shall be considered privileged and confidential. It shall not be used in subsequent proceedings for cases involving the same offender as an adult, except when beneficial for the offender and upon his/ her written consent.

Section 43 also provides that a child in conflict with the law shall not be held liable under any provision of law, to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to inquiry made to him/her for any purpose.
Perjury (Article 183 of the Revised Penal Code) - the willful and corrupt assertion of a falsehood under oath or affirmation administered by authority of law on a material matter.

Continuing problems in the implementation of the provisions of RA 9344 especially on the part of the LGUs (PREDA Foundation)
1. Section 16. Appointment of Local Social Welfare and Development Officer. This is not very well coordinated as social workers put CICL in the least of their priorities.

2. Section 18. Development of a Comprehensive Juvenile Intervention Program is not being taken seriously by local cities and municipalities. It says there that LGUs shall set aside an amount necessary to implement their respective juvenile intervention programs in their annual budget. No budget allocated, therefore, no implementation can be made.

3. Section 19. Community-based Programs on Juvenile Justice and Welfare. Actually, there is no implementation of this section of the law. CICL released to their parents do not participate in any community-based programs as there are no programs drawn for them by the LGU. What is actually happening is that the CICL only shows up quarterly to the office of the social worker for monitoring.
There is a lack of coordination between the government agencies concerned specifically the DSWD and the concerned Local Government Units and NGOs. Also, there is nothing stated in the law regarding the qualifications and competency of social workers who handle the different programs for the children.

This paper is an attempt to show that the passage of the Juvenile Justice and Welfare Act of 2006 was ineffective in curbing crimes and failed to at least minimize crimes involving youth offenders.

While the current law recognizes the protection and rehabilitation of children in conflict with the law, it failed to consider the penal aspect of the law, and that is to afford also justice to the victims and their families and society in general.
Also, being penal in character, this should help at least to minimize crimes for the protection of the society in general.

The problem of RA 9344 is two-fold 1. Substantive 2. Procedural.

On the Substantive side, it is in such sense that children 15 years old and below can freely roam around the streets and pretty much do anything they want without the thinking of the repercussions of their actions.
We are more concern with the age of criminal responsibility on the capacity- sense, that there is a conclusive presumption of innocence.

As a result, victims especially minor victims are left in the losing end.

On the procedural aspect of the law, instead of providing focusing on the age of criminal responsibility on the capacity-sense why not focus on the process?
RA 9344 does not provide for a separate and distinct

hearing system for children but only provides for guidelines in dealing with them. An ideal system would be one where children can undergo the justice system suited for their age, and be accountable for their actions if the required mens rea has been proved regardless of age.

While the intention and objective of the law is ideal and commendable, it fell short on the process and repercussions of providing an age of criminal irresponsibility. If we are indeed for the welfare of the child to be the paramount interest, we need to help them and not totally exclude them from system based only on age. When we say help, we mean that we are teaching children to learn and be accountable of their actions if there is indeed discernment and at the same time restorative by mandating them to undergo the system of rehabilitation regardless of their age.