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Lacaden, Reynald C.

JD-1A
Legal Research and Thesis Writing

JUSTIFYING THE LOWERING OF THE AGE OF EXEMPTION FROM


CRIMINAL LIABILITY TO PERSONS AGED 12 YEARS OLD AND
BELOW ACCORDING TOTHEIR INFORMATIONAL KNOWLEDGE OR
ACADEMIC ATTAINMENT.

In this age there are a lot of criminals lurking everywhere, and some
of them are even minors who are aged below eighteen years old. Some
say that they are still young and that their minds and consciousness are not
yet matured, but others say that they have the capability to think and know
what is wrong and what is right. In this case this study will justify the age of
which criminal liability should be determined.
As a definition, criminal liability shall be incurred by any persons committing
a felony wherein the felony is either committed with deliberate intent or by
means of fault1. In this topic we shall focus on the minors acts through
deliberate intent or deceit.
The latin axiom of Actus non facit reum nisi mens sit rea which means the
act itself does not make a man guilty unless his intentions were so. is one
of the requisite for one to be held criminally liable for felonies committed by
means of deceit (dolo).2 Intent is a mental state, the existence of which is
shown by the overt acts of a person.3 The court in People vs. Doquea
states that we must take into consideration not only the facts and
1 Article 3, Revised Penal Code
2 Article 3, Revised Penal Code
3 Soriano vs. People, 88 Phil. 368, 374

circumstances which gave rise to the act committed by the minor, but also
his state of mind at the time the crime was committed. 4 Thus, there is no
felony by dolo if there is no intent.
As of the current laws an accused, who is a minor aged 15 years and
below, 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.5 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.
CURRENT LAW
The legislative branch, in compliance with several international
agreements,6 passed the Juvenile Justice and Welfare Act of 2006 (R.A.
No. 9344). 7 Herein, child was referred to as persons under the age of
eighteen (18) years.8 Those who enjoy absolute criminal responsibility are,
to wit;

4 People vs People vs Doquea 68 Phil. 580


5 Guerra vs. Almodovar G.R. No. 75256 January 26, 1989
6 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.
7 Section 72, R.A. No. 9344
8 Section 4 (c), R.A. No. 9344

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. 9
Nevertheless, children are developing at a quicker rate than previously.
Today, given technological era, children have a greater understanding of
the world. 10 According to Senator Francis Escudero, youths of today are
more knowledgeable, even minors, as held relevant from the past. 11 This
suggests a need to amend aforementioned provision to pace with the
changing minors mental capacity.
PROBLEM
In the past a news 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. 12 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.
9 Section 6, R.A. No. 9344
10 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)
11 Senate to approve Juvenile Law Suspension

12 Zen Hernandez. Cops cant Jail bukas-kotse youths ABS-CBN News

Another problem of this act is that it may encourage criminal groups, drug
dealers and other illegal activities to use these children in their operations
as they know that these kids are immune from criminal liability likewise they
will use the kids to perform their acts for the syndicates as children can be
easily swayed by these people through bribes, toys, or even drugs as a
means of reward for committing the act.
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.13 Ones they have executed the crime, law enforcers
have no power to detain them because of this law. Only birth certificate is
needed.14 Rosales and Senator Francis Pangilinan, the main author for the
law. Commissioners contention that it goes against international standards
and violates Republic Act 9344 is bereft of legal basis. 15 Similar case held
with Senator Pangilinans 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:

13 Annabelle L. Ricalde. Lawyer Jose A. Fabia, director general of the Philippine Information Agency
(PIA), told Sun Star Cagayan de Oro. February 3, 2011.
14 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 childs
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
15 Jon Carlos Rodriguez, CHR chair opposes lowering the age of criminal liability to 9. Abs-cbnNews.com

Pursuant to Article 40 of the United Nations Convention on the Rights of the


Child16, 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, 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.
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. 17 It is thus evident that
appurtenant international agreements left the discretionary authority of
determining the age of absolute irresponsibility on states municipal law.
The doctrine of incorporation18, 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) 19 should be harmonized.

16 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
17 Beijing Rule 4.1
18 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.

19 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)

States, signatories of the same, had enacted their respective municipal


laws. The table below shows states adopted age of absolute
irresponsibility.
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.20 Lastly, Senator Pangilinans
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.21 Second is THE CHILD AND YOUTH WELFARE CODE.22
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. 23
20 Atitiw vs. Zamora 471 SCRA 329
21 Article 12 (2 and 3) Revised Penal Code
22 P.D. 603 (December 10, 1974)

The provisions of Article 80[24] 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 childs 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.

23 Article 189, Chapter III, P.D. No. 603


24 Suspension of sentence of minor delinquents clause

Older children also begin to master and enjoy their intellect. They become
more consciously aware of their mental processessuch as what it takes
to memorize a spelling list or remember a specific past eventand 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. Childrens
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 thinkersthat is, abstractions and
hypothetical issues are hard for them to understandthey have the
intellectual skills to function competently in the adult world. 25
Before the time of Marcos, the Juvenile and Domestic Relations Courts
viewed the minor as a victim not as an aggressor.26 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 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
25 Thompson, Ross A. "Child Development." Microsoft Encarta 2009 [DVD]. Redmond, WA: Microsoft
Corporation, 2008.

26 Marianne Murdoch-Verwijs, LLM. Juvenile Justice in the Philippines A Personal Experience (Free
University, Amsterdam).

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.27 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. 28
Those who committed a crime with the aid of persons under fifteen (15)
years of age is as well provided.29
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.30 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.31

Lowering the age of absolute criminal irresponsibility will not eliminate


minor delinquents but will aid in decreasing the same. Mathematical
27 Annabelle L. Ricalde Sun Star Cagayan de Oro. February 3, 2011
28 Article 17, Title II, RPC
29 Article 14(20), Chapter 4, Title I
30 Article 20, Chapter 2, R.A. 386
31 Article 101, RPC

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.