salient features of the juvenile justice welfare act

Salient Features of the Juvenile Justice

Welfare Act (R.A. 9344

as amended by R.A. 10630)

By: Debbie G. Dulay-Del Val

Public Attorney, Baguio City

OVERVIEW• Brief History and Background of the

Law• Conceptual Framework of the Law• Salient Features of R.A. 9344 as

amended by R.A. 10630• Role of Barangay Council for

Protection of Children (BCPC’s)

Philippine Laws on Youthful Offenders prior to R.A. 9344,

as amended• National Laws protecting the Rights

of Youthful Offenders were limited.

a)Revised Penal Code

b)P.D. 603

Revised Penal Code• It was enacted in 1932• Adult-oriented / Distinct

circumstances of a CICL are not taken into account / No Diversion / Stigma of Criminality / No provision for aftercare / Punishes Status Offenses

• Children as young as 9 yrs. old can be incarcerated inside the jail

P.D. 603• The Child and Youth Welfare Code

enacted on Dec. 10, 1974 • It spelled out special procedures in

handling youthful offenders (Art. 189-204) – E.g. recognizance, suspension of

sentence, rehabilitation in RRCY, etc.

P.D. 603• Recognition of the role of the Five Pillars

of Justice (Community, Law Enforcement, Prosecution Service, Courts, Correctional Institution) in a collective effort to rehabilitate youthful offenders and dispense justice

• Establishment of BCPC’s• Studies showed a gap in the

implementation of the law by the Five Pillars of Justice

Result• Continued violations of child rights

were easily observed at the time of arrest and incarceration of a CICL.

• Formal education of child offenders who were enrolled at the time of arrest was disrupted.

• At the same time they also learn vices such as smoking, gambling, drinking and substance abuse from them.

UN Convention on the Rights of the Child

• Adopted by different nations on November 1989

• Philippines became a signatory in 1990

• It defines a “child” as any human being below 18 years old

UN Convention on the Rights of the Child

The Convention establishes in international law that:

Signatory Nations must ensure that all children—without discrimination in any form—benefit from:• Special protection measures and assistance• Have access to services such as education and health

care • Can develop their personalities, abilities and talents to

the fullest potential • Grow up in an environment of happiness, love and

understanding• Are informed about and participate in, achieving their

rights in an accessible and active manner.

Art. 40 of UN Convention on the Rights of the Child

• Right of CICL to legal help and fair treatment in a justice system that respects their rights

• To set a minimum age below which children cannot be held criminally responsible

• To provide the minimum guarantees for the fairness and quick resolution of judicial or alternative proceedings

What does the Convention mean for the Philippines?

• By accepting the Convention, the Philippines committed itself to undertake “…all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment”

What does the Convention mean for the Philippines?

• the country was entrusted with the mission to “…undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the Convention.”

Philippine Response• June 17, 1992 (2 yrs. From UN

Convention)– enactment of R.A. 7610 (Law on Special Protection of Children Against Abuse, Exploitation and Discrimination Act)

• April 28, 2006 (16 yrs. From UN Convention)– enactment of R.A. 9344 (Juvenile Justice Welfare Act) which became effective on May 20, 2006

What was happening to youthful offenders BEFORE R.A. 9344?

Two Kids, aged 9 and 10, arrested

allegedly for Theft, are jailed in

this small cell with

18 other child detainees and

16 adult prisoners.

(Photo: PREDA)

What was happening to youthful offenders BEFORE R.A. 9344?

Rosie, aged 5 years old, found wandering alone in the streets of Cebu, arrested allegedly for

Vagrancy, was jailed in this small cell together with adult prisoners.

(Photo: PREDA)

What was happening to youthful offenders BEFORE R.A. 9344?A child’s depiction of his arrest by law enforcers.

When dealing with children, the Police Handbook states that, on arrest, children should be “taken by the hands” rather than “dragged” or “collared.”

Despite these provisions, many child suspects are handcuffed upon arrest and during transfer.

There also continue to be persistent reports of torture or ill-treatment including punches, slaps, blows on the soles of the feet, being grabbed around the neck, etc.

Conceptual Framework of R.A. 9344

• Principle of Restorative Justice– Includes Diversion

• Best Interest of the Child

Restorative Justice• Enhancement of public safety by

activating the offender, the victim and the community in prevention strategies.

• It is one that presumes that children in conflict with the law are themselves victims.

Diversion• The various processes by which child

offenders are prevented from entering the formal criminal justice system.

• A typical component of the restorative approach

R.A. 9344• Juvenile Justice Welfare Act of

2006• It became effective on May 20, 2006• Its Implementing Rules and

Regulations (IRR) were enacted on September 19, 2006

Who are covered under R.A. 9344?

• Children in Conflict with the Law (CICL)– children who are alleged, accused of or

adjudged of or adjudged as having committed an offense under Phil. Laws

• Children-At-Risk– refers to children who are vulnerable to

and at the risk of committing criminal offenses because of personal, family and social circumstances

What is the Minimum Age of Criminal Responsibility?

• Children above 15 years of age but below 18 years of age who acted WITH DISCERNMENT

• Increased from above 9 years old to above 15 years old (as under the Revised Penal Code)

What is Discernment?• The mental capacity of a child to

understand the difference between what is right or wrong and the consequences of his acts

• Discernment relates to the moral significance that the person attaches to the act

Who is a Child Exempted from Criminal Responsibility?

1. A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability.

A child is deemed to be fifteen (15) years of age on the day of the fifteenth anniversary of his/her birthdate.

The child shall be subjected to an intervention program. (mandatory)

Who is a Child Exempted from Criminal Responsibility?

2. A child above fifteen (15) years but below eighteen (18) years of age who acted WITHOUT DISCERNMENT.

• The child shall be subjected to an intervention program. (mandatory)

Who is a Child Exempted from Criminal Responsibility?• Those who commit Status Offenses• Any conduct not considered an

offense or not penalized if committed by an adult shall not be considered an offense and shall not be punished if committed by a child.

• E.g. vagrancy, prostitution, sniffing of rugby

Violation of Local Ordinances

• Ordinances enacted by local governments concerning juvenile status offenses such as, but not limited to:

• curfew violations / truancy / parental disobedience / anti-smoking and anti-drinking laws /

• light offenses and misdemeanors against public order or safety such as, but not limited to, disorderly conduct / public scandal / harassment / drunkenness / public intoxication / criminal nuisance / vandalism /gambling / mendicancy / littering / public urination / and trespassing,

• Shall be for the protection of children.


• No penalty shall be imposed on children for said violations.

• They shall instead be brought to their residence or to any barangay official at the barangay hall to be released to the custody of their parents.


• Appropriate intervention programs shall be provided for in such ordinances.

• The child shall also be recorded as a ‘child at risk’ and not as a ‘child in conflict with the law’.

• The ordinance shall also provide for intervention programs, such as counseling, attendance in group activities for children, and for the parents, attendance in parenting education seminars.”

Are They Exempted Also from Civil Liability?

• NO.• “The exemption from criminal liability

herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws.”

• To be paid by their parents or guardian/s.

Procedure for Taking into Custody a Child Exempted from

Criminal Liability

Authority in Initial Contact with Child 15

yrs. old and below

Consult/Inform/Report to LSWD Officer

Immediately release the child to his/her

parents or guardian, or, the child’s nearest

relative

Community-Based Intervention Program

for Child by LSWD Officer

If for best interest of child: Refer to a Youth Care Facility or ‘Bahay

Pag-asa’

• If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following:a) A duly registered nongovernmental or

religious organization;b) A barangay official or a member of the

Barangay Council for the Protection of Children (BCPC);

c) A local social welfare and development officer; or, when and where appropriate, the DSWD.

• If the child has been found by the LSWD officer to be dependent, abandoned, neglected or abused by his/her parents and the best interest of the child requires that he/she be placed in a youth care facility or ‘Bahay Pag-asa’, the child’s parents or guardians shall execute a written authorization for the voluntary commitment of the child

• If the child has no parents or guardians or if they refuse or fail to execute the written authorization for voluntary commitment, the proper petition for involuntary commitment shall be immediately filed by the DSWD or the Local Social Welfare and Development Office (LSWDO) pursuant to PD 603.

• The minimum age for children committed to a youth care facility or ‘Bahay Pag-asa’ shall be twelve (12) years old.”

Procedure During Initial Investigation (Inquest)

Law Enforcer must determine where

case of CICL must be referred

Statement of Child taken in the presence of: (1) Counsel

or Public Attorney; (2) Child’s Parents/Guardians/Nearest Relative; (3) LSWD Officer.

Social Worker must conduct an intial assessment to: (a)

determine appropriate intevention; (b) determine

discernment

Proceed in accordance with Section 20 if the child is fifteen (15) years or below or above

fifteen (15) but below eighteen (18) years old, who acted

without discernment

If the child is above fifteen (15) years old but below eighteen (18) and who

acted with discernment, proceed to DIVERSION

Procedure During Preliminary Investigation & Filing of Information

Preliminary Investigation is Conducted by Prosecutor if:

(a) Child not qualified for Diversion; (b) Child & Parents refuse to undergo Diversion;

© Diversion is not appropriate

Prosecutor must (a) Serve subpoena and

affidavit of complainant to child; (b) Notify PAO & place of detention of CICL

What if Children who are Exempt from Criminal Responsibility Commit Serious Crimes?

• He/She shall be deemed a neglected child under PD 603

• He/She shall be mandatorily placed in a special facility within the youth care faculty or ‘Bahay Pag-asa’ called the Intensive Juvenile Intervention and Support Center (IJISC).

• Qualifications:1. The child is above twelve (12) years of age up to

fifteen (15) years of age2. The child commits:

a) parricide, b) murder, c) infanticide, d) kidnapping and serious illegal detention where the

victim is killed or raped, e) robbery, with homicide or rape, f) destructive arson, g) rape, or h) carnapping where the driver or occupant is killed or

raped or i) offenses under Republic Act No. 9165 (Comprehensive

Dangerous Drugs Act of 2002) punishable by more than twelve (12) years of imprisonment

• Procedure:1. Petition for involuntary

commitment and placement under the IJISC shall be filed by the local social welfare and development officer of the LGU where the offense was committed or by the DSWD worker

2. Filed within 24 hours from the time of the receipt of a report on the alleged commission of said child.

3. The Court shall decide on the petition within 72 hours.

What if Children who are Exempt from Criminal Responsibility are

Repeat Offenders?

• He/She shall be deemed a neglected child under PD 603

• He/She shall undergo an intensive intervention program supervised by the local social welfare and development officer

• Qualifications:1. The child is above twelve (12) years of age up to

fifteen (15) years of age2. The child was previously subjected to a

community-based intervention program3. The child’s parents or guardians shall execute a

written authorization for the voluntary commitment of the child if the best interest of the child requires that he/she be placed in a youth care facility or ‘Bahay Pag-asa’

4. Petition for Involuntary Commitment shall be immediately filed by the DSWD or the LSWDO: if the child has No parents or guardians or if they refuse or fail to execute the written

authorization for voluntary commitment

What if the Children are Exploited by Adults for the Commission of

Crimes?• Any person who, in the commission of a crime,

– makes use, takes advantage of, or profits from the use of children,

– including any person who abuses his/her authority over the child or who, with abuse of confidence,

– takes advantage of the vulnerabilities of the child and – shall induce, threaten or instigate the commission of

the crime, • shall be imposed the penalty prescribed by

law for the crime committed in its maximum period.

What if the Children are Exploited by Adults for the Commission of

Crimes?• Under R.A. 7610:• Any person who shall use, coerce, force or

intimidate a street child or any other child to:– Beg or use begging as a means of living;– Act as conduit or middlemen in drug trafficking

or pushing; or– Conduct any illegal activities,

• shall suffer the penalty of prision correccional in its medium period to reclusion perpetua

January 24, 2008 Notes of Atty. Debbie G. Dulay

Diversion• An alternative, child-appropriate

process of determining the responsibility and treatment of a CICL

• Based on his/her social, cultural, economic, psychological or educational background

• WITHOUT resorting to formal court proceedings


Who Undergoes Diversion?• CICL above fifteen (15) years but

below eighteen (18) years of age who acted with discernment

• Children who are 15 years old and below who committed an offense

• Diversion is the same a Tertiary Intervention


Venues Of Diversion• Barangay, Police, Prosecutor Level

– If offense has imposable penalty of not more than six (6) years of imprisonment

• Court– If the imposable penalty is more than six

(6) years of imprisonment but not more than twelve (12) years imprisonment


Katarungang Pambarangay Level

• Conducted by the Lupon Tagapamayapa, chaired by the Punong Barangay, with the assistance of the members of the BCPC

• Punong Barangay shall conduct mediation / family conferencing / conciliation / adopt indigenous modes of conflict resolution


Barangay Level…

• Absence of the offended party or his/her disagreement in its conduct shall not prevent the proceedings from being conducted.

• The Punong Barangay shall, however, endeavor to obtain the participation and the consent of the offended party in the formulation of the diversion program.


Barangay Level…• Objectives: restorative justice /

formulation of a diversion program

• Child and his/her family shall be present in the conduct of these diversion proceedings

• Offended party may participate in the diversion proceedings


Contract of Diversion

• Child voluntarily admits commission of the act

• Victim and offender must both agree to diversion


Diversion Program

• must be in writing signed by parties & concerned authorities

• Local Social Welfare Officer implements/supervises the Diversion Program

• Diversion proceedings to be completed in 45 days


On Diversion Program…

• Child must present himself/herself at least once a month for reporting & evaluation

• Failure to comply w/ the terms and conditions of DP as certified by the LSWDO, victim has the option to institute appropriate legal action


Formulation of the Diversion Program

• An individualized treatment• Consider the following factors:• Child’s feelings of remorse for the offense

he or she committed / Parents’ or legal guardians’ ability to guide and supervise the child / Victim’s view about the propriety of the measures to be imposed / Availability of community-based programs for rehabilitation and reintegration of the child


Kinds of Diversion Program• Restitution of property• Reparation of the damage caused• Indemnification for consequential damages• Written or oral apology• Care, guidance and supervision orders /

Counseling for the CICL and the child’s family

• Attendance in trainings, seminar and lectures on: anger management skills, problem solving and/or conflict resolution skills, values formation, other skills in dealing w/ situations which can lead to repetition


Barangay Level…• Participation in available community-

based programs including community service

• Participation in education, vocation and life skills programs


Law Enforcement & Prosecution & Social Worker Level …

• Diversion programs previously specified

• Confiscation and forfeiture of the proceeds or instruments of the crime


Court Level …• Diversion programs previously

specified• Written or oral reprimand or citation• Fine • Payment of cost of the proceedings• Institutional care and custody


Court Proceedings• Apply privileged mitigating

circumstance of Minority to fix, Reduce Bail

• IF CHILD IS DETAINED: Release On Recognizance, Bail, Transfer to Youth Home, Rehabilitation Center

• Institutionalization Last Resort, for Shortest Period

• No detention of child in jail pending trial


When CICL Found Guilty• Determine Civil Liability• Instead of pronouncing judgment of

conviction, automatic suspension of sentence ‘ full credit of time in detention, actual confinement / other disposition measures under SC Rule on JICL

Establishment of “Bahay Pag-asa”

• Each province and highly-urbanized city (the LGUs) shall be responsible for building, funding and operating a ‘Bahay Pag-asa’ within their jurisdiction following the standards that will be set by the DSWD and adopted by the JJWC.

“Bahay Pag-asa”• Refers to a 24-hour child-caring institution

established, • Funded and managed by local government

units (LGUs) and licensed and/or accredited nongovernment organizations (NGOs)

• Providing short-term residential care for children in conflict with the law who are above fifteen (15) but below eighteen (18) years of age who are awaiting court disposition of their cases or transfer to other agencies or jurisdiction.

“Bahay Pag-asa”

• “A multi-disciplinary team composed of a social worker, a psychologist/mental health professional, a medical doctor, an educational/guidance counselor and a Barangay Council for the Protection of Children (BCPC) member shall operate the ‘Bahay Pag-asa’. The team will work on the individualized intervention plan with the child and the child’s family.

Establishment of IJISC• “Part of the features of a ‘Bahay Pag-

asa’ is an Intensive Juvenile Intervention And Support Center (IJISC).

• “Every ‘Bahay Pag-asa’ will have a special facility called the IJISC. This Center will be allocated for children in conflict with the law in accordance with Sections 20, 20-A and 20-B hereof.

Establishment of IJISC• These children will be required to

undergo a more intensive multi-disciplinary intervention program.

Establishment of IJISC• The JJWC in partnership with, but not

limited to, the DSWD, the DOH, the DepED and the DILG, will develop and set the standards for the implementation of the multi-disciplinary intervention program of the IJISC. Upon institutionalization of the IJISC program, the JJWC will continue to monitor and provide technical assistance to the multi-disciplinary teams operating the said centers.”

Care and Maintenance of the Child in Conflict with the Law• The LGUs expected expenditures on the local

juvenile intervention program for children at risk and children in conflict with the law shall be included in the LGUs annual budget.

• Highly-urbanized cities and provincial governments should include a separate budget for the construction and maintenance of the ‘Bahay Pag-asa’ including the operation of the IJISC within the ‘Bahay Pag-asa’.”

THE END

salient features of the juvenile justice welfare act

Documents

rights of youthful offenders

childthe convention

handling youthful offenders

justice system

appropriate measures

time of arrest

pillars of justice community

special protection measures