Deducting the age bar for punishing of criminal offences
- 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 varies 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.
- 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.
- 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. 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 the full support of Congress, particularly on increasing life skills of adolescent learners; establishing an evidence-based parenting program for babies 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.
- If we fail to understand the underlying reasons how and why children commit crimes, we as adults, fail our children.
Also in Australia, there is a campaign going on to increase the age bar from 10 to 14 years for punishing the child and treating him/her as an adult. Nation’s top court had deferred the proposal currently till 2021, on a reason “saying the honourable court needs more time to find an alternative for imprisonment.
This current law has got the worldwide attention because it is a violation of UN convention rules for the protection of rights of the Children and this age limit is very low in comparison to many other European countries, like Germany it is 14, Luxembourg it is 18, Portugal it is 16 and in India (Asia) it is 16 if proved the mental capability of the wrongdoer is developed that he/she was mature enough about the seriousness of the offence.
Arguments against the deduction of age bar:
- In 2019 the UN Committee on the Rights of the Child recommended all countries increase the minimum age of criminal responsibility to at least 14 years. It is just a recommendation, which lacks the binding force.
- 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.
- Mental health will get affected, due to putting the children behind the bars. This will not rehabilitate them, but in fact, might turn them into offenders or wrongdoers.
- Indian system follows the principle of reformative and this will cause fear and since they and their mind are not mature enough, there are high chances of having a bad influence on their mental health and thinking ability.
- Lowering the age of criminal responsibility will not deter adult offenders from abusing children to commit crimes.
- If this was the case, then why are 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.
- 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.
- Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
- Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love, and understanding,
- Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality, and solidarity,
- Bearing in mind that the need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (article 10) and the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children,
- Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “the child, because of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”,
- With the objective of “taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child, Recognizing the importance of international co-operation for improving the living conditions of children in every country, in particular in the developing countries”.
- Article 54 of the United Nations Convention on Rights of the Child (UNCRC) talks about “Children’s right to all the necessities and government cooperation so that it reaches to all the children who are in need.”
- Legal groups have long said locking up children doesn’t reduce crime and that young people drawn into the criminal justice system are more likely to face a future behind bars.
“Statement attributable to Ms Lotta Sylwander
Representative, UNICEF Philippines”
- Geneva Declaration of the Rights of the Child of 1924
- Universal Declaration of Human Rights
- United Nations Convention on the Rights of the Child
- Convention on the Rights of the Child
“ Adopted and opened for signature, ratification, and accession by general assembly resolution 44/25 of 20 November 1989. Entry into force 2 September 1990, by article 49.”
- BBC news article “Why Australia is facing calls to stop jailing 10 years old?”
- Amendment after “Nirbhaya Case” for heinous offences the wrongdoer will be punished as an adult if proved that he/she is psychologically mature enough to understand the nature of the act.
Author: Yuvraj Ranolia,
School of Law, Christ (deemed to be) University, Bengaluru, Karnataka, India.