A Case study on Children in Conflict with the Law in Caloocan City PDF

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NATIONAL COLLEGE OF PUBLIC ADMINISTATION AND GOVERNANCE Diliman, Quezon City A Case study on Children in Conflict with the Law in Caloocan City A research paper for PA 299.2 Hazel J. Urminita PA 299.2 Research Methods in Public Administration I 5:30 – 8:30PM Professor Rizalino Cruz I. RATIONALE Chil...

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NATIONAL COLLEGE OF PUBLIC ADMINISTATION AND GOVERNANCE Diliman, Quezon City

A Case study on Children in Conflict with the Law in Caloocan City

A research paper for PA 299.2

Hazel J. Urminita

PA 299.2 Research Methods in Public Administration I 5:30 – 8:30PM Professor Rizalino Cruz

I.

RATIONALE Children, consisting of 39% of the overall population of the Philippines can play a

significant role as agents of transformation. However, these children often live in remote areas with limited infrastructures and access to basic services. In a typical Filipino community where poverty is a very common complication growing rapidly in an urban setting, for example in Metro Manila where 20% resides in informal housings or slum areas1.Children from impoverished households are often victims of extreme forms of child labor such as prostitution or recruitment into armed forces. The effects of poverty are also visible through that large amount of children living and working in the streets in the Philippines, even though not very visible, there are an estimated 246,111 children living and working in the streets, between the ages of 0-17 years old2. With the current environment in the Philippines, children are not exempt from the extreme expression of violence where arbitrary extrajudicial killings are very common, street children are common victims of summary executions, violence, trafficking and exploitation. Last 2014, there are 14,993 cases of Children in Conflict with the Law (CICL) in the Philippines3. That is more than one child per hour being accused or adjudged of committing an offense under Philippine laws and they are susceptible to abuse during arrest and detention.

The Philippines is home to over 15,000 Children in Conflict with the Law (CICL) as of 2014 data from the Philippine National Police (PNP). Majority of them were property-related crimes wherein theft was considered the highest with the outstanding number of 5886 cases per year.

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UNICEF Philippines, Annual Country Report 2010 Situation of the Filipino Children, CWC 2012 3 Council for the welfare of Children, 2015 Compendium of Statistics on Children 2

Thus, this study aims to explore more on the CICL situation and the Juvenile Justice Welfare System in the country. II.

DETAILS OF THE RESEARCH

1. Statement of the Research Problem a. What are the factors behind children in conflict with the law? b. Do existing programs of the government particularly the DSWD and policies address the issues on Children in Conflict with the Law? c. How is restorative justice for CICL being implemented and how does the implementation serve to further the rights and principles of children in the Philippines? 2. Objectives a. To know the different factors behind Children in Conflict with the Law b. To know existing programs of the government particularly the DSWD and policies address the issues on Children in Conflict with the Law c. To determine if restorative justice for CICL is being implemented and how its implementation is being served to further the rights and principles of children in the Philippines. 3. Significance of the Study This study further heeds to amplify the importance of the children in our society and the plight they are experiencing specifically the Children in Conflict with the Law. Children being considered as the most vulnerable sector in our society, there is a need for their rights and situation to be put into a priority. The study would also like to give contribution to the awareness of the situation of children in the Philippines and giving it a sense of significance in ensuring and looking into the process of juvenile justice in the Philippines.

Furthermore, as this study draws attention to a sector that is most of the time being set aside, the researcher is hoping to spark discussions and attention to the children’s sector to further call for actions on implementation of programs and policy legislation.

4. Definition of Terms a. Child – refers to a person under the age of eighteen (18) years old b. Children in conflict with the law – refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws c. Juvenile Justice and Welfare System – refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development. d. Restorative Justice – refers to an alternative measure in the criminal justice process that is not punitive in nature but rather seeks to render justice to offenders and victims alike, instead of tilting the balance heavily in favor of one of the stakeholders to the disadvantage of another and, focuses on the social harmony as the ultimate goal as well.

III.

REVIEW OF RELATED LITERATURE a. International Instruments: i. The United Nations Convention on the Rights of a Child (UNCRC) The UNCRC defines the child as a person under 18 years of age. It acknowledges the

primary role of parents and the family in the care and protection of children, as well as the obligation of the State to help them carry out these duties.

The UN Convention consists of 41 articles, each of which details a different type of right. These rights are not ranked in order of importance; instead they interact with one another to form one integrated set of rights. A common approach is to group these articles together under the following themes:

1. Survival rights: include the child’s right to life and the needs that are most basic to existence, such as nutrition, shelter, an adequate living standard, and access to medical services. 2. Development rights: include the right to education, play, leisure, cultural activities, access to information, and freedom of thought, conscience and religion. 3. Protection rights: ensure children are safeguarded against all forms of abuse, neglect and exploitation, including special care for refugee children; safeguards for children in the criminal justice system; protection for children in employment; protection and rehabilitation for children who have suffered exploitation or abuse of any kind. 4. Participation rights: encompass children's freedom to express opinions, to have a say in matters affecting their own lives, to join associations and to assemble peacefully. As

their capacities develop, children should have increasing opportunity to participate in the activities of society, in preparation for adulthood.

The UN Convention includes four articles that are given special emphasis. These are also known as ‘general principles’. These rights are the bedrock for securing the additional rights in the UN Convention.

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that all the rights guaranteed by the UNCRC must be available to all children without discrimination of any kind (Article 2);

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that the best interests of the child must be a primary consideration in all actions concerning children (Article 3);

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that every child has the right to life, survival and development (Article 6); and

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that the child’s view must be considered and taken into account in all matters affecting him or her (Article 12).

b. National Instruments (National policies for CICLs) i. The Juvenile Justice Welfare Act of 2006 In 2006, the Juvenile Justice and Welfare Act (Republic Act 9344) was passed, marking the establishment of the comprehensive juvenile justice and welfare system.

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The act was

developed in coherence with the international standards in juvenile justice and the rights of the child, recognizing “the right of every child alleged as, accused of, adjudged, or recognized as,

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Republic of the Philippines, Congress of the Philippines, 13th Congress, Second Regular Session, Republic Act 9344, “The Juvenile Justice and Welfare Act of 2006” 25 July 2005

having infringed the penal law to be treated in a manner consistent with the promotion of the child’s age and desirability of promoting his/her reintegration. 5 The act therefore recognizes the primary objective of resorting first and foremost to non-judicial measures, and the use of detention as a measure of last resort. 6 Emphasizing the imperative that all children deprived of their liberty must be separated from adult offenders “at all times”. 7 The act also provides broad, as well as specific protection from violence against children in the justice system. The governing principles of the act generally prohibit all forms of neglect, abuse, cruelty and exploitation. 8 Section 5 recognizes the right of children who come into conflict with the law not to be subjected to torture or cruelty, inhumane or degrading treatment of punishment, as well as the right not to be imposed a sentence of capital punishment or life imprisonment, without the possibility of release.9 The Act elaborates on acts that are prohibited to be resorted to by justice officials, this include labelling children as ‘young criminals, juvenile delinquents, prostitutes or attaching to them any derogatory names’, recognizing the prolonged negative effects that such stigmatization causes children. 10 Similarly, the use of threats, or coercive or punitive measures, or the employment of degrading, inhuman and cruel forms of punishment is strictly forbidden.11

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Section 2 (d) of the act Section 5 (c) 7 Section 5 (d) 8 Section 2 (c) 9 Section 5 (b) 10 Section 60 11 Section 61 (a-d) 6

The act specifically prohibits the penalization of children for status offences, as well as the crimes of vagrancy, prostitution, begging or sniffing rugby, preferring that children in these situations benefit from counselling or treatment.12 c. Restorative Justice and Diversion under the act The Act recognizes restorative justice as one of its governing principles, and develops a system whereby the use of restorative justice is mainstreamed and used a primary measure for children who have committed offences warranting not more than 6 years imprisonment 13. In all such cases the “law enforcement officer with the assistance of the social welfare and development officer or other members of the LCPC shall conduct mediation, family conferencing and conciliation – with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program”14. However, the use of diversion measures is not limited to cases warranting not more than 6 years in prison, rather there are various stages at which diversion may be decided upon: at the primary investigation stage and all other stages of the judicial proceedings diversion is a possibility. For more serious cases, that warrant note more than 12 years imprisonment, the court may decide upon a measure of diversion, where this is deemed appropriate15. The right of diversion is recognized on a voluntary basis, if the child qualifies for diversion. Conferencing, mediation and conciliation may be referred to before the child enters into formal

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Sections 57 and 58 Section 23 (a) 14 Section 23 (a) 15 Section 23 (c) see also section 37 and 24 13

judicial proceedings. It is during this process that the child has the opportunity to admit responsibility for the offence at hand, and if so, may give his or her consent to partake into a diversion program. The admission of guilt cannot be used against the child in any subsequent judicial proceedings 16 . It is during this process that the child has the opportunity to admit responsibility for the offence at hand, and if so, may give his or her consent to partake in a diversion program. The admission of guilt cannot be used against the child in any subsequent judicial proceedings. The diversion proceedings are limited to be completed within a delay of 45 days, and the social welfare and development officer shall oversee the implementation of the diversion programme. The diversion program is in essence then, the agreed terms of the conference, mediation or conciliation process. The diversion programme can contain an appropriate diversion programme the ability of the family to guide and supervise the child is a decisive factor. The Act also identifies family counselling as a possible diversion program. An innovation of the Act is its incorporation of the recognition of indigenous conflict resolution mechanisms that comply with the rights of the child. For less serious crimes, where the mediation is conducted by the law enforcement officer or Barangay with support of the social welfare and development officer, the Act provides that, where appropriate, “indigenous modes of conflict resolution” should be utilized, “in accordance with the best interest of the child with a view to accomplishing the objectives of restorative justice”. Another innovation is the recognition of the particular vulnerabilities of girls who become involved with the justice system, and the importance of addressing their special needs as girls.

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Section 26

Specifying that girls should be handled by “female doctors, correction officers and social workers, and shall be accommodated separately from male children in conflict with the law”. The Act protects the child’s right to be heard at all stages of the preliminary investigation and any subsequent judicial proceedings, as well the right to be accompanied by a parent or guardian when giving testimony. The Act goes further in recognizing the importance of children to be heard and to participate on all levels of decision-making that concern children. Therefore, the Act provides that the formulation of policies and strategies should be conducted in “consultation with children for the prevention of juvenile delinquency and the administration of justice, as well as for the treatment and rehabilitation of the children in conflict with the law” and that a mechanism is to be set up that ensures the involvement of children in “research and policy development”. Thereby children are legally established decision makers within the national policy agenda. Retroactive applicability of the provisions of the Act, meant that adoption of the Act would entail real change for children already in the justice system, that would benefit from its protection and their sentences would be “adjusted accordingly”. It is a significant development that with the adoption of the Act, the minimum age of criminal responsibility was raised from 9 years to 15 years. In 2008, the DSWD issued an Administrative Order entitled” Guidelines in the Conduct of Diversion for Children in Conflict with the Law” and the objectives state that the “Guideline is issued to ensure that diversion is appropriately conducted by social workers, law enforcement officers, prosecutors and other stakeholders” and aims to “provide a standard procedure” for

diversion, its implementation and supervision and monitoring232. The Guidelines further identify which children are eligible for diversion, under the Act, and describes the diversion procedure, identifying the various role players and structures needed. The annexes also provide interview guidelines and protocol in conducting diversion proceedings, so as to ensure a child friendly environment for children who are diverted. The Presidential Executive Order No. 633 of 2007, provided for the release of detained children in conflict with the law in accordance with the provisions of the Act. However, in 2011 NGOs transferred 446 minors to the Department of Social Welfare and Development (DSWD) rehabilitation centres, following a court order issued upon petition by the NGO or the Public Attorney’s Office, appealing to the provisions of the regulations of child detention provided for under the Act. NGOs and civil society organizations and the Public Attorney’s office continue to petition courts to release children wrongfully detained, and who are under the age of 15 years of age. Police stations have designated child and youth relations officers, that specialize in the handling of children who become involved with the justice system, even so, reports indicate that procedural rules concerning children are often not respected. The Department of Social Welfare and Development (DSWD) has implemented community based programs to protect children who become involved with the justice system from violence, abuse and other human rights violations. In 2007, 2,759 children benefited from community based and center based sentencing alternatives. 62% of males benefitted from community based programs. It was noted that girls were more equally distributed among center based and community based programs than males. d. Diversion Programs from Selected NGOs

The Community Based Diversion and Prevention Program in Cebu City 17 . This program was initiated before the adoption of the law in 2003, as a pilot project in 12 barangays in Cebu City, implemented by the local NGO, FREELAVA (Free Rehabilitation, Economic, Education and Legal Assistance Volunteers Association). A Children’s Justice Committee (CJC) is a trained group, that handle the diversion of eligible children, most commonly through mediation. The CJC is composed of members of the Barangay Council, the police, the school guidance councilor, the social worker, the Gender and Development Project officer (GAD), as well as community volunteers. The CJC recommends appropriate interventions and support services for the child at hand and implements these programs, the CJC is also responsible for following up on the implementation of the Diversion program and keeping records of the developments of the case. The CJC is a coordinates with the Barangay Council for the Protection of Children (BCPC). The GAD officer assists in preparing the assessment of the child, including interviewing the child, in order to determine appropriate diversion, rehabilitation and reintegration programs. The Social Worker also assists in conducting counselling sessions and preparing cases, as well as liaising with families. Furthermore, the social worker is engaged in implementing the psychosocial interventions that the child might need. Community volunteers and Peer Educators are vital in the rehabilitation and reintegration stages of the program, as well as in tertiary prevention, in other words to prevent re-offending, as a follow-up mechanism through peer counselling. The appropriateness of community

17 Free Rehabilitation, Economic, Education and legal Assistance Volunteers Association inc. and Save the Children UK, Guidelines for a Community-based Diversion and prevention programme for Children in Conflict with the Law, Philippines, 2005

volunteers is assessed in accordance to a set of criteria, such as, knowledge of their leadership qualities, their respected positions in the community and their willingness to be a volunteer. Former child offenders serve as peer educators and are good role models for children undergoing diversion, that encourage children to change their lives. This is often done in informal settings, where personal sharing is a central feature. Engaging peer educators is also an effective rehabilitation and tertiary prevention tool, that ensures that children who have been involved with the justice system are able to regain social recognition and respect, connected to a positive lifestyle, thereby building their self-esteem18. The Police is a crucial role player, as the officer’s affiliation ensures that police will pass eligible children directly through the CJC, so that eligible children may avoid pretrial detention. School guidance counsellors assist children who have returned to school, to ensure that they do not reoffend. “Community-based prevention of child offending and reoffending is a continuing process. Hence it cuts across the entire process of the community-based diversion work.” “To rehabilitate a diverted CICL, the CJC undertakes various psychos...