Rights of the Child in the Philippines
By Nora O. Gamolo, Senior Desk Editor
Monday, December 31, 2007
World Organisation Against Torture Organisation Mondiale Contre la Torture P.O. Box 21 - 8, rue du Vieux-Billard CH 1211 Geneva 8, Switzerland Tel. +41-22-809.49.39 Fax +41-22-809.49.29
People's Recovery, Empowerment
Development Assistance Foundation, Inc.
Report on the implementation of the Convention on the Rights of the Child by the Philippines
A report prepared for the
Committee on the Rights of Child
38th Session - Geneva, January 2005
1.1 Legal Framework
2.2 Police Custody
President Gloria Macapagal-Arroyo has run the Republic of the Philippines since 20 January 2001. 1 It is estimated that approximately 40% of the population lives below the poverty line. The dependency rate in the country remains one of the highest in South-East Asia, with the proportion of the population under 14 at 38,3% and the proportion above 65% at 3,5%. Meaning that approximately 42% of the population needs support regarding education, health, nutrition, and housing. 2
The activities of political and regional rebel groups account have created instability in the Philippines. The National People's Army (NPA) and the Communist Party of the Philippines (CPP) represented by the National Democratic Front (NDF) have collided for over 35 years with the Filipino government, which resulted in clashes between the Armed Forces of the Philippines (AFP) and the NPA. The NDF claims that the current government is a puppet regime of the United States that propagates the Filipino system of oppression and exploitation. Peace talks with NDF have been protracted. In addition, the Filipino government has been in conflict with the Muslim minority. 3 A peace accord between The Moro Islamic Liberation Front (MILF) and the government was signed in 1996 and concerned greater political autonomy for the South Western province of Minadanao with the establishment of the Autonomous Region in Muslim Mindanao (ARMM). 4 However, the MILF continues to seek greater autonomy or an independent Islamic State. Currently the Philippine government and the MILF are on a yearlong cease-fire and prolong peace talks have been negotiated by Malaysia. 5
Economically the country can be described as a
market-based mixed economy with a current real economic growth rate of 4,5 %
and a relatively high unemployment rate of 11,4% (2003). The country is
struggling with a high annual population growth rate and an unequal
distribution of income.
2 Asian Development Bank, Country Gender Assessment, Sourtheast Asia Department, 2004, http://www.adb.org/documents/Reports/CGA/Phi-Ctry-Gender-Assesmt.pdf, p.7.
3 Muslims constitute the largest single minority group of the Philippines, they account for approximately 5% of the total population (79,5 million in 2002). Information from Asian Development Bank, Country Gender Assessment, Sourtheast Asia Department, 2004, http://www.adb.org/documents/Reports/CGA/Phi-Ctry-Gender-Assesmt.pdf, p.7.
The Republic of the Philippines signed the Convention on
the Rights of the Child (CRC) on 26 January 1990 and ratified the Convention
on 21 August of the same year. In addition, the Philippines ratified both
Optional Protocols: on the Rights of the Child on the involvement of children
in armed conflict and on the sale of children, child prostitution and child
pornography on 26 August 2003 and 28 May 2002 respectively.
The Philippines is also party to the following international conventions which directly or indirectly advance the rights of the child: the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) on 5 August 1981, the Convention on the Elimination of Racial Discrimination (CERD) on 15 September 1967, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 5 July 1995. The Philippines also acceded to the Convention against Torture and other cruel, inhuman or degrading treatment or punishment (CAT) in June 18, 1986 and the ILO Worst Forms of Child Labour Convention 1999 (C 182), ratified by the Philippines on 28 November 2000.
First report of the Philippines to the CRC was
submitted in 1993 after ratification, second report covers 1995-2000 (http://www.cia.gov/cia/publications/factbook/geos/rp.html)
7 Both Protocols were signed by the Philippines on 8 September 2000.
Although the Republic of the Philippines is struggling with poor economic conditions and reoccurring political unrest, the country has been actively engaged in law and policy making to protect children's rights. The subsequent alternative report aims at providing information on the state of affairs of the rights of Filipino children. 8 The most important observation flowing from the report is the incoherence between theory and practice. Unfortunately, in many instances practice does not coincide with what the Filipino law prescribes. A manifest illustration of this problem is found with respect to the sexual industry. The laws in the Philippines against commercial sexual exploitation of children, child prostitution, child sex tourism and trafficking are multiple. Regretfully these kind of practices have been too often observed and are clearly in contravention with the prescribed Philippine law and Article 34 of the Convention on the Rights of the Child (CRC).
Moreover, the report discerns that children have been affected by reoccurring incidences of armed conflict in the Philippines. In its fight against the New People's Army (NPA), the government has repeatedly unlawfully killed children and arbitrary detained them. Regarding armed conflict in the Philippines, OMCT is also concerned with the continuing recruitment of children by non-state armed groups.
In addition, OMCT is gravely concerned with the conditions of the Filipino Juvenile Justice System. Although there is ample legislation in that protects children in conflict with the law, implementation so far has been to say the least meager. Filipino children languish and are jailed with adult prisoners in cramped police jails where a number of them get raped, tortured, and tattooed and deprived of access to legal, medical, social, and psychological assistance and services in an institutionalized act of unlawful discrimination by the Philippine government against the children of the poorest of the poor. The right of the children to be treated in a manner conducive to their rehabilitation is denied in all cases. This is worrisome situation and a clear contravention of the Filipino obligations under Article 37 and 40 of the CRC.
In January 2004, OMCT, in partnership with Wedpro, Task Force Detainees of the Philippines and Preda Foundation, published an alternative report on State Violence in the Philippines for submission to the Human Rights Committee. The third part of this report concerned children's rights issues. 9
8, 9 For additional information on discrimination against Filipino children see Annex I.
The Family Code of the Philippines was amended by Republic Act 6809, which lowered the age of majority from 21 to 18 years old. Article 234 of the respective Act specifies that majority is acquired at the age of 18 with the termination of the parental authority over the child. Hence the CRC applies to 42,6% of the Filipino population, in other words 32,1 million Filipino children. 10
The minimum age of criminal responsibility is stipulated in Article 12 paragraph 2 of the Penal Code in which a person under nine years of age is exempted from criminal liability. The criminal responsibility age is to be changed from 9 to 12 years by section 7 of the proposed Comprehensive Juvenile Bill 1402 authored by Senator Francis Pangilinan. 11 (see section 5.1.1.)
For purposes of criminal procedures, Presidential Decree 1179 defines a young offender as a person over 9 but under 18 years old at the time of the commission of the offence.
In accordance with its obligations under the ILO Convention 138 ratified by the Philippines in 1998, Republic Act 7658 prohibits public and private employment of a child below the age of 15 provided that the employment does not endanger the child's safety, health, morals or impair his or her normal development. However, there are two exceptions to the minimum age employment; (1) the situation in which the child works directly under the sole responsibility of the parent/ guardian, or (2) in case of a child's necessary participation in public entertainment or information through cinema, theatre, radio or television.
The constitution provides for free compulsory primary education and free secondary education for all citizens. The compulsory schooling age is 6 years old set by Department of Education (Order No.65).
OMCT welcomes the awareness by the Philippine government of the complexity and arbitrariness of the definition of the rights of the child in its legislation.
11 Similarly to Article 12, Section 7 stipulates that criminal responsibility is also exempted for a child above 12 years but below 15 years of age, unless (s)he has acted with discernment..
III.1 Legal framework
The Philippine Government becoming a party to the Convention Against Torture in 1984 has an obligation to enact laws that conform to the provisions laid down in the Convention. Article III, Section 12 of the Bill of Rights contained in the 1987 Philippine Constitution prohibits torture. The legislator however has not yet criminalized torture in the penal code. Nevertheless, the Revised Penal Code (RPC) does provide for other crimes that may be used instead of torture in order to punish state agents. Article 19 (3) and Article 58, which sentence the abuse of public functions, constitute an example in this respect. Regarding children, Article 278 concerning the sexual exploitation of minors stipulates heavier sentences in case the victim is a child.
However, up to the present the State is yet to pass a law criminalizing torture as such. 12 On June 26 2004 the International Day for Victims of Torture, Task Force Detainees of the Philippines, Filipino based human rights NGO released a press statement urging Congress to pass a law criminalizing torture. "Bills criminalizing torture were filed in the Senate and the House of Representatives on the 12th Congress but until now, no law has been passed to declare that torture is a crime to be included in the Revised Penal Code. It is hoped that the next Congress will not let a year pass without enacting an anti-torture law." 13
OMCT urges the Republic of the Philippines to comply with its international obligations under the CAT and to pass a law criminalizing torture.
The practice of torture and other forms of inhuman or degrading treatment or punishment against children has been reported on occasion. In the following sections cases of torture are reported:
Practice of commercial sexual exploitation of children (CSEC), Child Prostitution, Child Sex Tourism, and Trafficking
Children in situations of Armed Conflict (Cases of grave violence, unlawful killings, arbitrary detention and torture towards children by military forces)
Lack of Compliance with the CRC; with regards to Juvenile Justice system and especially the conditions of detention of children.
The Universal Declaration of Human Rights declares the inherent right of every human being to life. Other international HR instruments reinforce this inherent right. Article 6 of the UN CRC calls upon signatory states to recognize that every child has the inherent right to life, while Article 37 of the ICCPR prohibits the imposition of thedeath sentence for crimes committed by persons below 18 years of age. Summary execution is among the worst form of human rights violation.
Davao and Digos Death Squads
For over eight years now, two vigilante groups respectively known as the Davao and Digos Death Squads have killed more than 150 people, including teenagers in and around Digos City in the Southern province of Mindanao. It is not clear how close the links are, if any, between both groups. However, the killings committed are carried out in a similar manner and against suspected drug pushers and petty criminals. The killings remain unpunished and seemingly un-investigated. Although the death squads appeared to have stopped in 2000 after an intensive campaign against the arbitrary killings of street children by the Davao Death Squads, they reappeared after Rodrigo Duterte, who had campaigned on a strong anti-crime and anti-drugs platform, won the mayoralty race in Davao City. Since his election, Mayor Duterte has constantly warned suspected drug dealers and petty criminals to leave his city or face his wrath.
According to the press, the police named most of the victims as suspected criminals or drug dealers, while no proof of any crime has been advanced nor any of the alleged convictions verified. Several of the reports indicated the ages of the victims, many of whom were children and youth. The majority appears to be street dwellers. 14
It appears from the media reports that the killings are not random attacks carried out by amateurs. The nature of the killings have lead NGOs to believe that they and their perpetrators are well organized and well funded. All of the killings appear to be carried out on the streets during broad daylight by armed men on unmarked motorcycles. Generally, there are two gunmen, usually wearing either black clothing or military fatigues, on each motorcycle. While no witnesses have ever surfaced out of fear, investigations and interviews with people witnessing the attacks, as well as newspaper accounts confirm that the assailants are organized and well informed about their targets. In most incidents, responding policemen are late to arrive at the crime scene where victim(s) are shot. 15
PREDA suspects that the renewed killing spree is an official policy aimed to curb street crime in order to garner support from local business people. In October 2001, the Region XI Commission on Human Rights (CHR) Director linked the increase of incidents of summary executions to a bounty system catered by wealthy patrons. He also pointed out that it was close to impossible for the police and military not to know the identities of the members of these groups given the huge budget allocated to intelligence work. In addition, some witnesses linked three police officers to the DDS. It was noted that the officers were, at one time or another, near the crime scene. They were suspected of either being the gunmen or having served as the contacts. The witnesses however were reluctant to provide written statements. Regardless of who is actually pulling the triggers, it is clear that the State has made no real attempt to investigate the killings and prosecute the perpetrators. As such, the killers appear to be allowed to act with complete impunity. 16
OMCT strongly urges the republic of the Philippines to do everything to stop the arbitrary executions and bring the perpetrators to justice.
A human rights defender, Rashid
Manahan, was killed in broad daylight 24th of August 2004 in front of Ponce
Suites, Bajada, Davao City. Manahan was with Prof. Nymia Simbulan, Executive
Director of Philrights and Ms. Martha Alvarez, a representative of the
European Union. The three were to attend a forum against the death penalty and
salvaging at UP Mindanao. http://www.preda.org/archives/2004/r04082601.html
15 A few months ago an independent investigating body composed of members of FIND (Families of Victims of Involuntary Disappearance) and the Commission on Human Rights discovered a killing field in Barangay Maa, Davao City where they found pieces of long bones, skulls and other remains scattered in an eroded portion of the place. Forensic analysis revealed that the skeletal remains belong to at least six persons, including a female child and that the killings most probably happened in the last six months to three years. Some of the skeletal remains were also found to have torture marks. A random search of the killing
16 The press has meanwhile closely linked Mayor Duterte to the killings by the DDS. It is a widely held belief that the mayor is linked to the killings. The Dow Jones Reuters report dated 29.10.2001 indicates the apparent rationale behind the killings. The report cites businessmen of the area who claimed that the investment climate in the city improved significantly, after the security situation stabilized during Duterte's term in the mid-1990s, the same period the DDS began their campaigns.
IV.1.1 Legal Framework
The Philippines is a signatory party to the UN CRC, the Optional Protocol to the CRC on the Sale of children, child prostitution and child pornography (since 8.09.2000). Realizing that the sexual exploitation of children is a global menace, some countries have adapted their existing domestic law. These changes allow the local prosecution of their citizens who have abused children overseas. These countries include Australia, Belgium, Denmark, Finland, France, Germany, Iceland, Japan, New Zealand, Norway, Sweden, Switzerland, and the USA. Countries in the process of changing their laws include Canada, Ireland, Italy and the United Kingdom. This change in the domestic laws in these countries allowed the Philippines to prosecute and incarcerate foreigners proven to have abused Filipino children.
The Philippines is also a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women, upholding the right to be protected from all forms of trafficking and prostitution including sexual slavery, generally and by the military, the deception of migrant women and "mail order" and false marriages.
As also emphasized by the Stockholm Agenda for Action, peer education programmes can be instrumental in countering child exploitation. The National Coalition of Children's Associations in the Philippines is a body composed of 15 child representatives from 500 local Filipino children's association working for the defence of children's rights. Currently, the group of children is giving theatre performances inschools and communities on children's rights, and pays special attention to the issue of sexual exploitation. A similar initiative is Tingong sa Kabataan, a radio programme by children victims of sexual abuse for children in Cebu City aimed at the prevention of commercial sexual exploitation of children. 17
In 1998, the Philippines ratified the ILO Convention No. 138, which set the minimum age for basic work at 15 years of age an for hazardous work at 18 years of age. In 1994, the country signed the International Program on the Elimination of Child Labor or IPEC of the ILO. The Philippine Labor Code defines child labor as the "work of children below 15 years old or the engagement of children aged between 15 to 17 years old in hazardous work." The law prohibits child labor except, when under the responsibility of their parents or guardians. It allows family labor, except when it prevents children from going to school. The law however contradicts itself by allowing children of at least 14 years of age to work as apprentices in industrial establishments.
The Philippine Labor Code also mandates that the granting of opportunity to at least acquire elementary education to children under 18 years of age who are employed in domestic house work. Violators of child labor laws are penalized with fines amounting between PhP 1,000 to 10,000 or an imprisonment between three months to three years or both. The law also prescribes the revoking of the operating license of repeat offenders.
Hence, in accordance with its obligations under international law, the Republic of the Philippines has enacted ample legislation ensuring the protection of children against all forms of violence, such as commercial sexual exploitation, child abuse, and child trafficking. Article 15, Section 3(2) of the 1987 Philippine Constitution ensures the right of children to assistance and protection from neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development. The RPC also lays down the laws for the protection of children. For example, the exploitation of children is the preserve of Article 278 of the RPC. Article 273, as amended by Republic Act No. 7610, meanwhile defines rape as a heinous crime in cases when the victim is under 12 years of age and regardless whether it was consensual or not. Article 340 to 343, which tackles the corruption of children, also relates to the white slave trade and abductions. Presidential Decree No. 603, or the Child and Youth Welfare Code of the Philippines defines the rights of children, the responsibilities of parents and the role of other institutions in promoting the welfare of Filipino children. Prohibited acts include: inflicting cruel and inhuman punishment to a child; leading the child to an immoral life; inducing a child to leave an institution where s/he is entrusted to care; failing to report abuse; unauthorized disclosure of information relating to child sexual abuse; and abetting, conniving or encouraging a child to delinquency.
Republic Act No. 7610, as a landmark piece of legislation for the protection of children, provides stronger deterrence and protection against child abuse, exploitation and discrimination, including those who are being prostituted or are in danger of being prostituted. It lays down mandatory reporting in cases of rape or abuse. Republic Act No. 7610 mandates teachers, school administrators, law enforcers and officials at the barangay or village level and other government workers to report all incidents of possible abuse to the Department of Social Welfare and Development (DSWD, the government agency mandated by the RPC and Executive Order No. 56 to take protective custody of children in prostitution and sexually exploited children.
17 Economic and Social Council, Report submitted by Juan Petit, Special Rapporteur on the sale of children, child prostitution and pornography, 5 January 2004, 60th session, Commission on Human Rights, E/CN/.4/2004/9, p.21.
Of the reported 1.5 million street children in the Philippines, 60,000 are prostituted. This makes the Philippines the fourth in nine countries with the most number of children in prostitution. Based on a report that 20% of the 50,000 prostituted women are minors, UNICEF provides a higher estimate: that there are 100,000 girls in the country. The DSWD, on the other hand, claims that the annual average increase of prostituted children is 3,266. It also reported a more than 100% increase in the case of sexually abused and exploited children. Rape constituted thirty-six percent (36%) of the reported cases, while child prostitution and paedophilia accounted for twelve percent (12%). The government has already ordered the crackdown on paedophiles, but the move, however, was not to protect the children, but - quoting former President Fidel V. Ramos - to "correct wrong perceptions about the Philippines, especially in the tourism industry." Ironically, child prostitution is highest in areas that are highly dependent on tourism, such as Puerto Galera in Mindoro, Pagsanjan in Laguna, Cebu and Baguio City, and Boracay Island in Aklan.
The development of a kind of tourism in the Philippines, which featured sex and prostitution as attractions began during the 1980s. A few years ago, government authorities cracked down on Pagsanjan, famous for sexual tourism, when the phenomenon had become too obvious for comfort. But some insiders believe the paedophile activities there have merely become more discreet. Most cities have large entertainment districts; 40 percent of the establishments are fronts for prostitution. It is estimated that one third of the girls working in the bars and clubs are underage. They are provided with fake birth certificates and made to appear older than they actually are. Two children aged 13 and 14 were recently rescued by the Preda children Foundation in Olongapo city after finding that both were being privately offered to customers for huge sums of money because they were virgins. 18
Other children are brought from remote villages to the tourist resorts that carter to foreigner tourists. The example of Puerto Galera is illustrative. In 2003 pimps or parents brought as young as eight and nine year olds to the beaches where foreigners lived in rented beach houses. The children were given trinkets and shells to offer to the foreigner tourists who lured the children inside their beach house and showed them videos of child pornography, some of the images down loaded from the Internet. Pimps target and supply foreigners because of their wealth and willingness to pay huge sums to abuse children. Besides they know that the Philippine police arereluctant to investigate a foreign suspect. Only four children out of 25 victims found in the Puerto Galera child prostitution ring were given protection and shelter by the Government. The Government claims not to have the resources. However massive sums of money are squandered on useless and failed projects and are 'lost' through corruption. Social welfare officials say the victims are getting therapy in their homes. This is inexplicable as the parents are involved in gross neglect or in pimping their own children.
None of the suspected pimps or parents has been charged and only one foreigner, a pedophile American, is in custody. The government's tourist policy is not to prosecute the pedophiles and sex tourist perverts lest the publicity abroad scares off other tourists. 19
If tourists are coming to the Philippines because of the children, there is also the reverse flow - the out-migration of under-aged youth for the purpose of prostitution abroad. State policies and programs and the international demand for cheap labor abroad have also facilitated the massive migration of women, even young girls, for work overseas. Government policies favor the export of entertainers and domestic helpers that put the lives of children and young women at risk. It is the combination of a legitimizing system that involves government and private sector recruiters and marketers, the local pressure of unemployment, the growing demand for bought sex and the operations of international crime syndicates, that have led to the worldwide explosion of the traffic in women and children.
Although more stringent laws against trafficking have been passed in 2003, notably the already discussed Republic Act No.9208, implementation of these laws have been weak so far. No effective prosecution of traffickers takes place due to corruption, weak judiciary and absence of enforcement of legislation. 20
OMCT urges the Republic of the Philippines to aggressively implement the legislation and to prosecute involved officials.
Report of Sexual Abuse of
Children in Tourism, Father Shay Cullen, November 2003, Preda Foundation,
19 Report of Sexual Abuse of Children in Tourism, Father Shay Cullen, November 2003, Preda Foundation, Philippines.
Unlike actual physical molestation, the very nature of pornography multiplies the abuse many times over. Pictures of the children being abused are shown or shared with others. These photos are also easily replicated - they get into sex publications, manuals, or brochures. They are reproduced by thousands or tens of thousands, often in different languages and distributed in numerous countries. Child pornography is becoming increasingly linked to the Internet, which provides new means to produce and distribute images secretly and globally. The pictures are usually accompanied with articles that give details about the child or children, about the Philippines, and how prostitution is run in the country. Filipinos are sold as sweet, warm, and hospitable. Behind the photos is the fact that the actual physical violence that accompanies the making of child pornography is very common.
Since 1990 Philippine authorities have been active in investigating and deporting pornographers such as Andrew Mark Harvey, a US National, for sexual abuse of children, and Hisayaoshi Naoyishi Maruyama, a Japanese national, for multiple abuses of children as young as 7 and kidnapped by intermediaries for the purpose, who was arrested ordered to pay a bail of USD 80 for each of the molested and/or disappeared child.
Local and foreign media have often been careless and insensitive in handling victims of pornography. One of the major areas for future studies is the effect of child pornography on the victims and the problems that emerge during rehabilitation. Children are practically labelled for years, even well into their adult years. NGOs such as ECPAT have repeatedly asked Filipino media not to join in exploiting these already exploited children, and although there has been some response, the practice still continues.
IV.1.4 Aids and sexual education
One of the great dangers of the thriving sex industry is the threat of a HIV/AIDS epidemic. In addition, the spread of the disease is also lingering in the Filipino jails, where adult inmates often sexually abuse children. 21 Partly due to the majority of Catholics among the population of the Philippines, one can detect a societal sentiment in the Philippines that rejects the use of condoms. Filipino Schools only provide rudimentary sex education and local authorities have even prohibited the distribution of condoms in public health facilities (e.g. Manila Mayor Jose "Lito" Atienza). Simultaneously AIDS is spreading and the two most powerful institutions in the country, the government and the Catholic Church, have taken little action to change the attitude. 22
A recent NGO report addresses the crucial failures of the Philippine government to adequately tackle the spread of HIV/AIDS. Not only do policies omit to stress the importance of the use of condoms for the prevention of the life-threatening disease, authorities expressly discourage their use. The anti-condom policies are manifested by bans of national funds for the supply of condoms and the prohibition on teachers to provide adequate sex education including health matters. In addition, numerous instances have been reported in which the police is said to have penalized a person in possession of condoms with prostitution. As a consequence, most Filipino youth and adolescents have no idea about the effects, transmission and protection against HIV/AIDS. 23
OMCT urges the government of the Philippines to actively engage in the fight against the spread of HIV/AIDS and promote the provision of adequate sex education and the use of condoms.
section 5.2.4. Conditions of
22 "AIDS epidemic looms over RP", Ami Evangelista, 4 July 2004, Philippine Daily Inquirer, http://www.inq7.net/opi/2004/jul/04/opi_commentary1-1.htm
23 "Unprotected: Sex, Condoms and the Human Right to Health in the Philippines" , Human Rights Watch report, May 2004 Vol. 16, No. 6 (C), http://hrw.org/reports/2004/philippines0504/
Since the time of authoritarian rule of Ferdinand Marcos in
the 1970s up to the present almost 4.5 million children have become direct and
indirect victims of war. The succeeding governments, from Aquino to Macapagal-Arroyo
declared periods of all-out war against the Communist insurgency and Muslim
separatist movements. Forty-two of the country's more than 70 provinces have
had recurring incidences of armed conflict, displacing around 1.3 million
people. Half of this figure consists of children. The Department of Social
Welfare and Development notes that 11,196 children annually become victims of
war as a result of the anti-insurgency campaigns the government is waging in
In addition, NGOs working throughout the affected areas reported violations of children's rights, which, according to the Task Force Detainees of the Philippines include arrest and detention, harassment and physical assault. Upon several occasions elements of the military have discriminatory used force and killed civilians in their fight against the NPA. These occurrences are clear violations of Article 38 paragraph 4 of the CRC under which a State is under the obligation to ensure protection and care of children affected by armed conflict in accordance with its duties under international humanitarian law.
Two cases illustrate the grave violence towards children by military forces.
(1) For instance on 7th of May 2004 military soldiers unlawfully killed two minors Maylene Golloso, 13 years old, and Raymund Golosso, 6 years old in Bulan, Sorsogin, Philippines. The victim's mother left the house to go to the centre and left her 4 children at home. Upon a loud burst of gunfire the children hid in the house and when the gunfire stopped for a short while, Mayelene and Raymund went outside to check if anybody was there and were hit by gunshots. Ms. Golosso ran back to the house when hearing the gunshots and saw 7 soldiers hiding in the garden around her house. When she saw her dying children she cried for help, but they left. The soldiers later went to the captain of the village and after request received a signed certification stating that the soldiers had engaged in a fire fight with the NPA and that they were the ones who killed the children. However this was a fake certification, since evidence proved to be contradictory. 24
(2) On 26th August 2003, in an open letter to president Gloria Macapagal-Arroyo, the International Secretariat of OMCT, informed by the Task Force Detainees of the Philippines (TFDP), denounced the case of a young boy who was arbitrarily arrested and tortured by military forces. Sixteen-year-old Jenny Rom was one of four youngsters arrested by members of the 19th IB based in Brgy on February 13, 2003. The military were conducting an intensified operation against rebels in the boundaries of Ormoc, when they encountered Jonathan Rom, Louie Rom, Jenny Rom, Genson Rom. They were handcuffed and accused of being rebels. Although the boys argued that they had just come from a day's work in the farm, the military conducted an interrogation. According to the information received, during the interrogation Jenny was punched and beaten every time he denied being a member of the NPA. Finally he was violently hit on the neck and left for dead by the military in an isolated place. Jenny woke up after a few hours and, despite his injuries, he managed to walk to his house. His uncle then rushed him to the hospital. The military arrived there and brought him to the Burauen Municipal Jail, having charged him with multiple homicides. Meanwhile, his three other friends were released after spending three days under military custody. No charges were filed against them. Last July, Jenny was transferred to a detention cell for minors at the Leyte Sub Provincial Jail while the perpetrators of the acts of torture remain unpunished.
OMCT urges the government of the Philippines to comply with Article 38 paragraph 4 of the CRC under which a State is under the obligation to ensure protection and care of children affected by armed conflict in accordance with its duties under international humanitarian law.
Philippines: Unlawful killing of two children by the military, Case PHL
180504.CC Child Concern/Unlawful killings http://www.omct.org/base.cfm?page=article&num=4894&consol=close&kwrd=OMCT&rows=11&cfid=1310942&cftoken=68782846
The Optional Protocol on children in armed conflict increases the minimum age for the participation of members of armed forces in hostilities from 15 to 18 years. OMCT welcomes the absence of Philippine military forces recruiting soldiers under the age of 18. The same rule applies to non-state armed forces and "States Parties shall take all feasible measures to prevent such recruitment and use, including the adoption of legal measures necessary to prohibit and criminalize such practices" by virtue of Article 4 paragraph 1 and 2 of the Optional Protocol. However, armed paramilitary groups have been regularly found to resort to children to compose their rebel groups. 25 It is highly difficult to quantify the number of children fighting with the various armed opposition groups. Especially the use of child combatants by the MILF and NPA are continuingly being reported. The Philippines Government estimated in 2001 that between 3 and 14 percent of the NPA's 9,000-10,000 regular fighters were children. 26
The NGO Group paper cited below pointed out that in clear violation of ILO Convention 182, article 3 (a), some children are physically forced or compelled to join the armed groups. Further the paper showed that although an ILO Study, showed that 34-40% of the respondents said they joined "voluntarily", others were invited to join by family members or rebel group leaders, or joined out of religious duty or for revenge. 27 However the paper went on to show that such volunteering was not always quite so voluntary as it identified reasons for such volunteering as domestic exploitation and abuse, lack of access to education and lack of alternative choices. 28
The Philippines' Department of Labor and Employment, 29 and a UNICEF study on under 18 years recruited into non-state armed groups in the Asia Pacific Region 30 cited similar factors in children "volunteering" into armed groups such as rural poverty, lack of free secondary education, and high levels of child labour.
Rights Watch, The Philippines: Child Soldier Use 2003,
A Briefing for the 4th UN Security Council Open Debate on Children and Armed
Conflict, January 16, 2004 , Multi Country Report
26 Marliza A Makinano: Child Soldiers in the Philippines (International Labor Affairs Service, Department of Labor and Employment, Philippines, 2001), pp 39-40
27 ILO IPEC: Philippines: Child Soldiers in Central and Western Mindanao: A Rapid Assessment (Investigating the Worst Forms of Child Labour No. 21), February 2002; UNICEF EAPRO: Adult Wars, Child Soldiers: Voices of Children involved in armed conflict in the East Asia and Pacific Region (October 2002), pxvi
28 The NGO Group paper on the Convention on the Rights of the Child Sub-Groups on Children in Armed Conflict and Child Labour paper in August 2003 on the Compliance with ILO Convention No. 182 Worst Forms of Child Labour Convention (ratified in 2000).
29 Marliza A Makinano: Child Soldiers in the Philippines (International Labor Affairs Service, Department of Labor and Employment, Philippines, 2001), pp 65-70.
30 UNICEF, "Adult Wars, Child Soldiers: Voices of Children Involved in Armed Conflict in the East Asia and Pacific Region" (2002) pp 23-31.
All of the children interviewed for the UNICEF study above were in situations which were intrinsically hazardous to the "health, safety and morals of children" within the meaning of ILO Convention 182 (article 3 (d)). Child soldiers and children working in a military environment are constantly exposed, both in combat and in training, to life-threatening situations, which, if they survive, could leave them severely physically or emotionally damaged.
The NGO paper showed that aside from the obvious hazards of living and working in a military or conflict environment, all of the children interviewed underwent harsh treatment and conditions (such as detention cells or only being allowed to eat at night) and that such harsh conditions compounded any illnesses to become severe diseases.
In addition, the NGO paper cited contraventions of ILO Convention 182 Article 3(d) such as working long hours, away from home and lack of education. In addition many state that they do not get paid for their services as child soldiers. Even those who volunteered and appreciate some aspects of the way in which they were treated by contrast with their normal existence, on escape or capture express concerns about the danger and fear associated with being involved in armed confrontations.
IV.2.3 Government Policy
Legal protection of children from military recruitment and use is specifically provided for in the 1991 Republic Act No. 7610 (the Special Protection of Children Against Abuse, Exploitation and Discrimination Act, July 1991), at Article X(22)(b).
The NGO Group paper concluded that the Government's legal provisions accord well with the requirements of ILO 182 both in relation to government armed forces and to armed opposition groups. However, it is not clear what action the Government actually takes to deter recruitment and use of under-18s by armed opposition groups in line with its obligations under ILO Convention 182 as this is the major current problem, in particular with the New People's Army and the Moro Islamic Liberation Front. 31
In this context the NGO Group concluded that it was particularly important that the Government develop an action plan, which addresses the reasons why children become child soldiers in armed opposition groups in addition to the legislative provisions prohibiting such activities as required under Articles 6 and 7 of ILO Convention 182.
31 ILO IPEC: Philippines: Child Soldiers in Central and Western Mindanao: A Rapid Assessment (Investigating the Worst Forms of Child Labour No. 21), February 2002; UNICEF EAPRO: Adult Wars, Child Soldiers: Voices of Children involved in armed conflict in the East Asia and Pacific Region (October 2002)
V.1 Legal Framework
The minimum age of criminal responsibility is stipulated in Article 12 paragraph 2 of the Penal Code in which a person under nine years of age is exempted from criminal liability. The following paragraph however seems less clear in its wording as it states that criminal liability is precluded for any person over nine years and under 15 years old, unless he has acted with discernment. The latter wording appears ambiguous, especially since no further clarification is provided in the penal code. The criminal responsibility age is to be changed from 9 to 12 years by section 7 of the proposed Comprehensive Juvenile Bill 1402 32 authored by Senator Francis Pangilinan.33 The same section also includes the ambiguous wording of discernment in that it provides that a child above 12 and below 15 years old is also exempted from criminal responsibility unless he/she has acted with discernment. According to Article 68, offenders between the ages of nine and fifteen, who demonstrate 'discernment' shall receive a sentence "two degrees lower" than an adult, and those under eighteen but above fifteen shall receive a sentence of "one degree lower." 34 Laying down the criteria of discernment could be helpful if consistently applied by the judge in each particular case and prevent misuse of the imprecision of the current term.
Children in Conflict with the Law are those that are between 9 and 18 years old who committed an offense or a crime whose case is filed in court with the prosecutor or the police. For purposes of criminal procedures, Presidential Decree 1179 defines a young offender as a person over 9 but fewer than 18 years old at the time of the commission of the offence. Article 68.1 of the revised Penal Code states that when the offender, at the time he commits the offence, is under 15 but over 9 years of age the penalty two degrees lower than that prescribed by law for persons over 18 shall be imposed as long as that person is found to have acted with discernment. Article 68.2 states that when the offender, at the time he commits the offense, is under 18 but over 15 years of age, the penalty one degree lower than that prescribed by law for persons over 18 shall be imposed. Persons under 9 years of cannot be convicted of criminal offenses under Philippine law. The RPC prescribes certain penalties depending on the seriousness of the crime. 35
However, this bill has not been
passed by Congress yet, and cannot be regarded as law of the Philippines (see
33 Similarly to Article 12, Section 7 stipulates that criminal responsibility is also exempted for a child above 12 years but below 15 years of age, unless (s)he has acted with discernment.
35 For example, a person who is convicted of theft of an item worth between P12,000 and P22,000 shall be sentenced to between 6 years and 1 day to 8 years imprisonment. However, a person who is convicted of theft of an item worth between P6,000 and P12,000 shall be sentenced to between 2 years 4 months and 1 day to 6 years imprisonment. The penalty in the latter case is described as being "one degree lower" than the former offense and is a lesser form of punishment because stealing a less valuable item is deemed to be a less serious offense.
Despite the poor human rights record of the government of Ferdinand E. Marcos, the dictatorial regime made some worthy legislation regarding the protection of children. PD No. 603 is the primary source of protection of CICL in the Philippines. PD 603 and its implementing rules, the Rules on the Apprehension, Investigation, Prosecution and Rehabilitation of Youthful Offenders ("the Implementing Rules"), provide a framework for the treatment of children from the moment of their apprehension to the conclusion of their rehabilitation or jail sentence. For example, Article 190 of Presidential Decree (PD) No. 603, or the "Child and Youth Welfare Code", as amended, stipulates that it is the duty of the concerned law enforcement agency to take the youth offender, 36 immediately after his apprehension, to the proper medical or health officer for a thorough physical and mental examination. Under PD 603 and the Implementing Rules, CICL are given strong protection, with duties and responsibilities placed upon the State in line with international human rights standards.
The Supreme Court of the Philippines also issued resolutions and circulars providing guidelines for the implementation of the law as laid down by PD No. 603 and its implementing rules. These circulars and rules of Court should apply to all cases involving children in conflict with the law. These include: "Special Treatment of Minor Detainees and Jail Decongestion" (February 2002), "Rule on Juveniles in Conflict with the Law" (April 2002) and "Rule on Commitment of Children". Due to Preda's reports on violations of previous circulars and strong lobbying to the Supreme Court and an international letter writing campaign, the Supreme Court issued another administrative circular NO. 13-2004 "Cases involving youthful offenders" on 30 March 2004. The latter circulation emphasizes the importance of the previous circulations for the protection of children in the juvenile justice system.
Republic Act (R.A.) No. 8369 or the "Family Courts Act of 1997", establishes Family Courts and grants them jurisdiction over child and family cases. It also contains important provisions regarding the supervision of youth detention homes (YDH) or homes for children awaiting or undergoing trial, as well as the training of Family Court Judges. Section 3 of RA 8369 states that "[t]here shall be established a Family Courtin every province and city in the country". The Act further states that Family Courts "shall have exclusive original jurisdiction to hear and decide", inter alia, criminal cases where minors are accused of crimes. Family Courts, therefore, are special courts aiming to give special attention to minors in conflict with the law so that there cases might be treated sensitively and expeditiously. Under Section 5 of RA 8369, only the Family Court has jurisdiction to deal with cases where the accused is a child at the time of the commission of the offence unless there is no Family Court in that particular province or city.
The subsequent acts regulate the administration of justice in the Philippines. They are general standards dealing with all persons in conflict with the law including children.
The Constitution of the
Philippines, and the Bill of Rights guarantee several rights which apply also
to children and include:
1. The right not to be deprived of liberty without due process of law.
2. The right to be informed of one's right to silence, legal representation etc.
3. The right not to be detained in circumstances that amount to torture.
4. The right to bail.
5. The right to be presumed innocent until proven guilty.
6. The right to a speedy, impartial and public trial.
Republic Act (RA) No. 7438 defines certain rights of all persons, including minors, arrested, detained or under custodial investigation, as well as the duties of the arresting, detaining and investigating officers. It also provides penalties for violations committed by the said officers.
Republic Act (RA) No. 8493 or the "Speedy Trial Act of 1998," this act provides time limits aimed at expediting criminal trials. It also contains positive obligations on government employees to ensure that criminal trials proceed expeditiously and provides for sanctions in cases they wilfully inhibit or obstruct the expedition of justice. Supreme Court Circular 38-98 implements the provisions of this Act.
Republic Act (RA) No. 7309 provides for the creation of a Board of Claims under the auspices of the Department of Justice (DOJ) for victims of unjust imprisonment and detention.
The Revised Rules of Criminal Procedure outline the procedures to be followed during the apprehension, investigation and trial of all persons in conflict with the law.
Several provisions of the Revised Penal Code of the Philippines (RPC) contain rules relating to the detention and investigation of all persons in conflict with the law. Article 125, for example, provides the rules on the apprehension of minors. Article 191 meanwhile provides for the right of CICL to be provided separate quarters from adult inmates in the absence of a child rehabilitation or detention centres.
The proposed Comprehensive Juvenile Bill authored by Sen. Francis Pangilinan, would rise the age of criminal responsibility from 9 to 12 years old (No.1402). In addition the Bill makes explicit reference to its goal of complying with Articles 37, 39 and 40 CRC in providing "a set of protective rights related to the juvenile justice system". The Bill prohibits the detention of children with adults; redirect cases of petty or victimless crimes from court to a diversion program; and develops a comprehensive delinquency prevention program. However as discussed earlier, this bill has not been passed by Congress. Senator Pangilinan filed the proposed Juvenile Justice System Bill during last Congress but unfortunately it was not passed in time before the 12th Congress adjourned. Senator Pangilinan re-filed it in the present Congress. Presently, it is undergoing deliberations on the Committee Level. 37
OMCT strongly urges the government of the Philippines to adopt the proposed legislation.
Youth offender is still being
used to describe CICL in many government reports and documents.
37 Information provided by Teddy Francisco Political Communications Officer Office of Majority Leader Francis Pangilinan, firstname.lastname@example.org
Unfortunately, the amalgam of laws designed for the
protection of people in conflict with the law is largely disjointed, often
contradictory, and misapplied in practice. While these laws grant CICL a high
level of protection, in practice this is not the case. As highlighted by the
following comments on implementation of the laws, there is an overwhelming
need for reform in this area. Any reform should be aimed at clarifying the
law, clearly setting the exact procedures to be followed starting from the
time a child initially comes into conflict with the law. Such reforms should
also provide for enforceable penalties for any breaches committed.
Each day, 36 to 54 Filipino children 38 languish and are jailed with adult prisoners in cramped police jails where a number of them get raped, tortured, and tattooed and deprived of access to legal, medical, social, and psychological assistance and services in an institutionalized act of unlawful discrimination by the Philippine government against the children of the poorest of the poor. This is worrisome situation and a clear contravention of the Filipino obligations under Article 37 of the CRC.
38 Thirty-six to 54 children-including girls and kids with mental disabilities-are jailed with adult prisoners everyday. This is based on statistics of the Public Attorney's Office who reported having handled 13,300 cases involving children in conflict with the law (36 kids per day) in 2002. The office of Philippine Senator Francis Pangilinan also expressed concern that 20,000 Filipino kids have been jailed (54 kids per day) in 2003.
Arrest with a Warrant
Since the apprehension of a person (either adult or minor) suspected to have committed a criminal offence involves the deprivation of liberty - albeit temporarily - the Philippine Constitution requires that arrest should be made only by a virtue of a warrant and unless the circumstances in which the person is arrested falls within the exceptions provided by law. An arrest warrant is issued following the conduct of a preliminary investigation 39 by a prosecutor, judge or other authorized official, and the filing of a criminal case in court. Under Section 4 of the Revised Rules of Criminal Procedure, the pre-arrest preliminary procedure should provide the accused adequate opportunity to submit refuting evidence to contest the complaint prior to facing the risk of imprisonment and the filing of criminal charges in court.
There is no effective provision under Philippine law for legal representation to be provided at the preliminary investigation stage to an accused unable to afford legal counsel, who can nonetheless be provided legal assistance by the Public Attorney's Office (PAO). In the majority of cases, a child will not have legal assistance at this stage and in practice, very few CICL are arrested pursuant to the issuance of an arrest warrant. Only two of the 69 minors interviewed in jail were detained on the foot of an arrest warrant issued after the conduct of a preliminary investigation. These two minors reported receiving a subpoena attached to an affidavit of complaint. Without legal assistance however, they were unable to understand the consequences. They ignored the documents and failed to submit any refuting evidence to the investigating prosecutor. The first real opportunity for these minors to submit evidence with the benefit of legal assistance came weeks or months at the arraignment stage of criminal proceedings and after their incarceration in an adult jail.
Arrest without a Warrant
Of the children interviewed, the majority was taken into custody without an arrest warrant, allegedly while committing the offense or in flagrante delicto. This does not constitute any violation of the law if done in accordance with Section 5 of Rule 113 of the Rules of Criminal Procedure, which determines the situations in which arrest without a warrant is lawful). Meanwhile, under Article 125 of the RPC, all persons (adults as well as children) who are arrested must be brought before the prosecutor, municipal court judge or duly assigned officer for an inquest investigation 40 with specific time frames, within 36 hours at the most, depending on the classification of the alleged crime. It would seem that in practice this only applies to cases of arrests without a warrant.
Inquiry as to Age
Under PD 603, a child is supposed to be treated differently from an adult from the moment of arrest (with or without warrant). It would seem to be an obvious requirement for the arresting officer to make all due effort to ascertain the age of those who appear to be minors as soon as it is practicable after arrest. But under Philippine law, there is no explicit requirement for an arresting officer to inquire as to the age of an accused immediately upon arrest. It is often the case that the arresting officer's report will not contain details of the age of the accused. As a result, the case is mistakenly filed in a court other than the Family Court. The officer, usually the prosecutor conducting the initial inquest investigation - in practice - rarely meets the accused at this stage, making it impossible for him to visually identify him as a minor.
The filing of the case in a court other than the appropriate Family court generally means that the child will have his arraignment and trial delayed for months before the case is eventually transferred to the appropriate court. More worryingly, the child will be unable to avail his rights under PD 603. (See also children on the death row. Numerous minors are awaiting the death penalty because there is uncertainty regarding their age.) Despite their youthful appearance, many of the children interviewed were treated as adults until such time as they were able to prove their age by producing of a birth certificate. However various factors (i.e. poverty, homelessness, etc.) make it often impossible to present a birth certificate.
Use of Handcuffs or Other Force
Section 5 of the Implementing Rules states that handcuffs and other instruments of restraint should only be used on children when absolutely necessary. Approximately 50% of the children interviewed report that they had been handcuffed on arrest and often during their transfer to and from court. As there is no obligation on the arresting officer to record details on the use of handcuffs and other instruments of restrain, there is no way to confirm or refute these allegations.
A preliminary investigation is
an inquiry to determine whether there are sufficient grounds to engender a
well-founded belief that a crime has been committed and that the accused is
probably guilty thereof. This procedure usually involves the exchange of
affidavits between the complainant and the respondent before the preliminary
examination hearing in front of a prosecutor, judge or other authorized
official. The complaint can then be either dismissed for want of evidence or
filed in court as a criminal charge. Once the case is filed in court, it is
given a criminal case number and an arrest warrant can be issued. A
preliminary investigation is an inquiry to determine whether there are
sufficient grounds to engender a well-founded belief that a crime has been
committed and that the accused is probably guilty thereof. This procedure
usually involves the exchange of affidavits between the complainant and the
respondent before the preliminary examination hearing in front of a
prosecutor, judge or other authorized official. The complaint can then be
either dismissed for want of evidence or filed in court as a criminal charge.
Once the case is filed in court, it is given a criminal case number and an
arrest warrant can be issued.
40 Inquest investigation is not to be confused with preliminary investigation, which occurs before the issuance of an arrest warrant as discussed previously. An inquest investigation is provided for under Section 7 of Rule 112 of the Revised Rules of Criminal Procedure. It is a more expeditious and less thorough investigation than a preliminary investigation because, unlike the latter, it does not involve the exchange of complaint-affidavits. In theory, an inquest investigation ensures that the detention of an accused is not illegal as he is supposed to be afforded an opportunity to examine the complaint and any evidence against him. It is unclear whether or not he is afforded an opportunity to submit controverting evidence at this stage and/or question the legality of his detention. At the end of the inquest investigation, the duly authorized officer decides whether or not there is enough evidence to pursue the prosecution of the offense or to order the release of the accused.
Duty to Inform Parents/Guardians
and the Department of Social Welfare and Development (DSWD)
Under Section 4 of the Implementing Rules, the arresting police officer is obliged to notify the Department of Social Welfare and Development (DSWD) 41 and the parents or guardian of the arrest of the child within eight hours. The officer is also obliged to explain to them the cause and reason for the arrest. Unfortunately, this rule is not applied consistently. In some jails, it seems that the child's parents and the DSWD had been informed of the child's detention almost immediately. In others, little or no effort had been made to contact either the child's parents or the DSWD. Had efforts been made to contact both parties and had these been recorded, it would go some way towards proving that the arresting officer diligently enforced the rights of the accused, even if the parents or guardians were not contactable.
Physical Examination of the
Under Article 190 of PD No. 603, an arresting officer is obliged to take the arrested child to any available government medical or health officer in the area for a physical and medical examination. This provision is intended to act as a deterrent to the use of unnecessary force during and after arrest. Only a small number of the children interviewed report to have had such an examination. Several of the children reported the use of unnecessary force against them by police officers during and after arrest and a physical examination would help confirm or disprove these allegations of abuse.
Right to be Informed Immediately
for the Reason for their Arrest
Under Section 4 of PD No. 603 and Section 2(b) of RA No. 7438, the arresting officer is obliged to immediately inform the youth of the reason for his arrest, and to advise him of his legal rights in a familiar language. In practice, this rarely happens. Almost all of the children interviewed reported a failure on the part of the arresting officers to adequately inform them of their rights.
RA No. 7438 also requires the arresting officer to reduce his custodial investigation report to writing. Section 2(c) of the same Act demands that the arresting officer must ensure that all accused persons have the contents of the custodial investigation report explained to them by an assisting counsel. Otherwise the custodial investigation report is null and void.
As none of the children interviewed had any legal counsel present at this stage, any custodial investigation report, whether signed by the minor or not, should be considered null and void. Consequently, there is no written evidence that any minor interviewed was ever informed of his constitutional rights. It seems that the police largely ignores RA No. 7438. Despite the penalties set out, many breaches go unpunished.
Right to Legal Counsel
After arrest, it is usual for the CICL to be brought to and questioned at the appropriate police station. According to the law, a child alleged to have committed any offence has a right to legal counsel effective from the time of his arrest. In all of the cases of children interviewed, there was no legal counsel present during the post-arrest interviews conducted by the police. Only rarely did the children have the benefit of the presence of their parents or guardians or a social worker. Many of the children reported that they have signed various unexplained documents under such circumstances.
The law needs to clarify a child's rights during post-arrest investigations, with questioning disallowed in the absence of a social worker or legal counsel. This would remove all confusion if a child later asserts that his legal rights were not respected at the custodial investigation stage.
Delivery to the Proper Judicial
In accordance with Article 125 of the RPC 43, the investigating police officer must forward the case of a child accused to have committed a crime to the appropriate official for the conduct of an inquest investigation within a maximum of 36 hours. In practice, it is usual for a child to have his inquest investigation performed within 48 hours of arrest. In addition, it is not considered necessary to bring to the inquest investigation those who had been arrested with a warrant, because it is presumed that they were afforded their rights to submit refuting evidence at the preliminary investigation stage, however these presumptions are often unfounded.
Article 125 of the RPC requires the delivery of an accused to the "proper judicial authorities" within the required time limits. However, most of the child respondents had no recollection of attending any inquest investigation or interview with any prosecutor or judge after their arrest. The information filed by the prosecutor in court is not signed by the accused and there is no proof that the child was actually brought before the judicial authorities. Many of the police officers interviewed informally stated that they would often only bring the papers for signature by the prosecutor, who will conduct the inquest investigation without seeing the accused.
Regarding practice, it is difficult to consider that the authorized officer conducting the inquest investigation is really fulfilling a judicial function. He or she is merely fulfilling an administrative formality. While the authorized officer has the power to file the case in court or to drop the charges, there are several preliminary orders outside his realm of authority. For example is the authority to have the child released on recognizance or bail, or transferred to a YDH or youth detention centre (YDC). It would take between two weeks to several months for a minor to be arraigned in court, during which time he is detained in an adult jail. Without legal counsel, the child has little or no opportunity to assert his legal rights to due process and fairness even at the early stage of the proceedings.
Waiver of Preliminary Investigation
If the child is arrested without a warrant it may ask to sign a waiver of preliminary investigation. He/she is then entitled to the more thorough preliminary investigation, which transgresses the prescribed time limits of a 'normal' preliminary investigation. From the case files of many of the minors interviewed, it is clear that the authorized officer uses the absence of a signed waiver as evidence that the accused minor has declined his right to a preliminary investigation. In reality, it is very rare that a minor will be presented with such a waiver. Section 7 does not place a positive obligation on the authorized officer to inform a child of his right to a preliminary investigation: a child who does not sign a waiver is not necessarily waiving his right to a preliminary investigation. A legitimate and understandable reason for the failure of the accused to request a preliminary investigation is the lack of awareness of his rights. This is clearly due to the absence of any legal assistance at the inquest investigation stage. The authorized officer however uses such failure to imply that the accused is waiving his right to preliminary investigation.
Several texts grant the right to
legal counsel to persons in conflict with the law. Same of them especially
apply to minors: Section 6 and 10 of the Implementing rules and section 8 and
26 of the Supreme Court Rules on Juveniles in Conflict with the Law
43 Basic International Human Rights Laws demands that an accused be brought promptly before the proper judicial authorities in order to question the circumstances of his detention. Article 125 of the RPC indicates that the purpose of bringing the accused before the inquest investigation is to provide him to submit controverting evidence to the prosecutor and challenge the legality of his detention. Article 125 is an attempt to fulfill the State's obligations under the ICCPR (Article 9(3) and the ICRC (Article 37(d)). These laws establish the right of an arrested person to be brought promptly before a judge or other officer authorized by law. The function of these officers is to decide whether there is sufficient evidence against the accused as to warrant their continued detention.
Delay before the Court
The majority of the children in the case studies reported that the arraignment was their first opportunity to appear before the relevant court. It was also their first opportunity to meet with their legal counsel. As shown by the case studies, weeks or even months may lapse before the arraignment takes place. In one of the cases, a child was arraigned within a week of his detention. In the case of another, it took more than 18 months. In all of the cases documented by PREDA, there is evidence of serious delays and breaches of the laws. Delays of months between hearings remain the rule rather than the exception, and these delays may have serious repercussions on the penalties imposable under law for CICL. Delays and constant postponements seem to be accepted as inherent and unavoidable by those involved in the justice system.
Children accused of having committed a crime, like everyone else, are supposed to enjoy the presumption of innocence, as provided by Article 40(b) of the CRC, yet many find themselves languishing in jail prior to their trial for lengthy periods of time.
The majority of children located in the various jails, not one is actually serving a sentence after trial and conviction in court. All of them are awaiting the disposition of their cases. In practice, it seems that prosecutors, complainants and even judges view the pre-judgment period - which can amount to years in some cases - as adequate punishment for the crime that was allegedly committed.
The lack of sufficient number of court social workers to make the case study reports and submit them to the judges with a recommendation for transfer of custody takes several weeks alone. There is only one court social worker for dozens of cases. NGOs are also assisting in the preparation of the reports, but the current staffing is far from adequate to deal with the number of CICL cases. . The children suffer weeks and months imprisoned before custody is approved.
The question of persons who
reach the age of majority while awaiting trial
In cases where the accused was a child at the time the crime had been committed, but not over 18 at the time of conviction, the penalties prescribed by the RPC are applicable. He should therefore not receive the full penalty that an adult offender would receive. The law recognizes the age of the accused at the time the offence was committed as a mitigating circumstance.
Presidential Decree 603 also applies to those who are sentenced before they turn 18. Article 192 of PD 603 states that if the court finds that the child has committed the acts charged against him, the prescribed penalties would be imposed. However, the court may decide - as a matter of upholding the best interest of the public and the child in question - to suspend all further proceedings and commit the child, who has not yet reached 18 years of age, to the custody of the DSWD or other appropriate institution for his rehabilitation until he reaches the age of 21 or for a shorter period as the court may deem proper. This suspension of sentence mechanism is very favourable to CICL as it gives them the opportunity to undergo rehabilitation. PD 603 also provides an opportunity for such youths to be released early from said YRCs once the court is satisfied that they have been successfully rehabilitated. Thus a child who is arrested, tried and convicted before he turns 18 is afforded an opportunity to undergo rehabilitation and may benefit from an early release.
However, unlike Article 68 of the revised penal code, the relevant provisions of PD 603 do not apply to children who turn 18 after arrest but before conviction. Such a person can only benefit from the reduction by one degree of his sentence if aged between 15 and 17 and two degrees if aged between 9 and 15.
The case of Marko illustrates this anomalous situation. At age 16, he was arrested for theft, but 18 months later, at age 18, he has yet to be arraigned. This means that he will not have the opportunity to benefit from the suspension of sentence provisions of PD 603 despite the fact that he was a child at the time of arrest. This also means that if found guilty, Marko is liable to a sentence of reclusion temporal minimum (12 years and 1 day), which is the penalty one degree lower than that prescribed for adult convicts. Instead of being able to avail of his right to a suspended sentence and rehabilitation, Marko might face a lengthy prison sentence as a result of the inexcusable delay on the part of the prosecution. Judging from Marko's case, serious delays in the processing of the criminal cases against children are primarily responsible for causing unjust situations. In practice, it means that the speed at which the trial of an accused occurs will determine the extent of punishment.
VI (2.3) OMCT urges the government of the Philippines to change PD 603 so as to also include children who turn 18 before conviction and hence can benefit from the suspension of sentence provisions.
44 Section 7 of RA 8493 states that the arraignment of an accused shall be held within 30 days from the filing of the Information, or from the date the accused has appeared before the justice, judge or court in which the charge is pending, whichever date last occurs. Section 12 of the same Act places positive obligations on PAO and persons having custody of prisoners to obtain the presence of a prisoner for trial. Section 14 provides for sanctions in cases where counsel for the accused, the public prosecutor or PAO obstruct the speedy resolution of criminal cases. Section 13 of the Act and section 9 of Rule 119 of the Revised Rules of Criminal Procedure also provide that when the accused is not brought to trial within the specified period, the Information may be dismissed upon the motion of the accused. Section 26(h) of the Supreme Court Rule on Juveniles in Conflict with the Law states that "In all criminal proceedings in the Family Court, the judge shall ensure the protection" of "the right to have a speedy and impartial trial, with legal or other appropriate assistance and preferably in the presence of his parents or legal guardian, unless such presence is considered not to be in the best interests of the juvenile taking into account his age or other peculiar circumstances". Therefore, it is clear that the cases of minors should receive priority over the cases of adults in terms of how quickly they proceed.
Minors in Jail Pending Judgment
Despite their respective mandates to establish detention and rehabilitation centres in the cities and provinces throughout the Philippines, the DSWD, the DILG, and local government units (LGUs) have not satisfactorily implemented their obligations to establish such centres. As a result, many areas of the country are left without these centres, and children awaiting trial are detained in jails along with adult prisoners.
Even in the rare cases where appropriate centres for children exist, legal provisions remain vague as to who is directly responsible for transferring the minor to such centres. The prosecutor who initially files the Information in court against the child has no authority to transfer the accused from jail to a rehabilitation or detention centre. While the judge has the sole authority to transfer the accused, he will rarely see the child in court until weeks after the minor had been arrested and placed in jail.
In practice, YRCs do not take minors into their custody without a valid court order out of fear that arbitrary detention proceedings will be brought against them. Many arresting officers as well as YDHs and YRCs do not wish to transfer or receive minors because they think that, interpreting Section 8 of RA No. 8369, a judge, having many responsibilities in relation to YDHs, should first issue the authorization of such a transfer. On the other hand, Section 8 of RA No. 8369 does not require the issuance of a court order by a Family Court judge authorizing a child transfer to a YDH or YRC.
Lack of awareness about the laws concerning CICL and apathy among jail authorities appear to play a large role in the failure to bring children arrested for crimes immediately to the DSWD. Jail authorities generally appear reluctant to transfer children to the YDHs or YRCs alleging fears that the children might escape from custody.
Plain disregard on the part of jail officers and public defendants also explains how children have ended up in jail. Overworked public defendants often advise the children to plead guilty to hasten the process. The case of Junjun, charged with rape, demonstrates utter disregard for the law and the child's welfare and best interest. He was brought to a juvenile detention center but was turned away because it was full. Without explanations, his escorts simply dropped him off at the Bilibid National Penitentiary. No one is pursuing his case, no one is filing an appeal on his behalf.
Despite a circular issued by the Supreme Court on the conduct of regular dialogues and periodic visits to jails by trial judges, none of the children who were interviewed reported having witnessed any visits from judges. However, it is also acknowledged that Family Courts are burdened with a massive caseload.
Lack of Youth Detention Homes
and Youth Rehabilitation Centres
A major problem with the current juvenile justice system is the lack of YDHs and YRCs throughout the Philippines. There is presently only a very small number of YDHs in the Philippines and there is not a much greater amount of YRCs. As a result, many courts will order the transfer of minors on trial to the custody of YRCs, which are centres for a child under rehabilitation who has received a suspended sentence in line with the provisions of PD 603, and not for a minor who is waiting or undergoing trial. This has the effect of placing a child accused of having committed a crime in a centre intended for children who have received sentencing. Furthermore, the very few YRCs in the country are unable to provide proper rehabilitation services to the children in their custody, with overcrowding one of the major problems.
The almost total lack of local government facilities for minors as mandated by PD 603 which states that a detention home ought to be provided for in every town. For not complying with this law the municipality is fined no more than the equivalent of sixty Euros. It is therefore of no political advantage for the municipality to spend money on such a costly project and easier to pay the fine.
Preda visited several jails and monitored the cases of many children since October 2003 (after the report UN HR Committee). In February this year Preda opened an alternative home for these children in prisons and accepted 70 boys so far. Twenty-five of these have already been reintegrated to their families as their cases have been dismissed or they have been acquitted. This reflects the changing attitude in the judiciary as at least eight judges have referred children from the prisons to the Preda alternative home. The main obstacle now in preventing the imprisonment of children in adult pisons is the lack of government-run holding centers to which judges can refer children. Even the Preda alternative home is filled up to capacity and needs expansion if to accept more children.
OMCT urges the executive branch of the Philippine government to establish additional holding centers for juveniles in order to accommodate the number of CICL and consequently prevent children being imprisoned with adults. The government should create a strong incentive for the local governments to comply with PD 603, or centralize the provision of YDH- and YRCs.
Lack of Diversionary Procedures
Diversionary procedures, known as the Katarungang Pambarangay are established as a method of keeping CICL out of the justice system. They are aimed at settling the problem in a child-friendly way. Rules dealing with the Katarungang Pambarangay have been issued by the Department of Justice. Ideally, the barangay captain or the local council chairperson can negotiate a deal regarding compensation between the complainant and the family of the child accused of having broken the law. This measure is to prevent the pressing of charges. While the barangay can legally dispose of a criminal case - in particularly those wherein the penalty does not exceed an imprisonment term of one year or a fine of PhP 5,000. However, in most of the cases documented by PREDA, the barangay was unable to dispose of the charges because of the absence of a private injured party. Many of the cases involved crimes against persons or personal property and the penalties involved exceeded the ceiling as required in the Katarungang Pambarangay.
Arbitrary Detention: Pre-trial
The inquest or preliminary examination procedure covers the majority of cases where no warrant of arrest had been issued. The legality of detention based on this procedure is questionable, with such a detention considered to constitute illegal and arbitrary detention and a breach of Article 125 of the RPC. While Republic Act (RA) no. 7309 provides for a Board of Claims under the DOJ for victims of unjust imprisonment and detention, in practice, a child accused of having broken the law - with little or no legal assistance - will never be informed of his right to compensation for any illegal detention he may suffered.
Evidence of illegal detention is difficult to gather, since custodial reports and case files rarely include the necessary details. Due to the heavy workload of PAO lawyers, it is impractical for them to raise procedural issues of illegal or arbitrary detention. A child's right to be compensated for suffering illegal and arbitrary detention may prove illusory and unenforceable in all but the most exceptional circumstances.
Arbitrary Detention: Post-trial
Many of the children in the case studies indicated that they were detained for long periods in jails along with adult prisoners even after the appropriate court had ordered their release, or transfer to a YRC or YDH. In one of the cases, a child was detained in jail for 49 days after the court had ordered for his transfer to a drugs rehabilitation centre. In many of the cases, the jail officials simply did not receive or act upon the court order days after it was made. Such detentions are deemed to be manifestly illegal and inexcusable and a breach of fundamental human rights, in particular of article 10.2 b) of the ICCPR.
While Philippine law provides for adequate protection from such arbitrary detention and lays down punitive measures for erring public officers, there is no attempt to implement and enforce the law.
Denial of Bail
In several of the case studies documented by PREDA, bail had been set at an inordinate and unreasonable amount that the children or their parents/guardian could never be expected to pay. In one of the cases, the bail for a ten-year old child accused of theft was set at the equivalent of USD 2,000. This amount would be impossible for the average middle-income earner to pay in the Philippines, let alone an impoverished child. Under international human rights law and except in the most serious of cases, it is illegal for persons awaiting trial to be denied the right to bail while detained in custody.
Prosecutors conducting preliminary/inquest investigations have been given guidelines from the Office of the Public Prosecutor setting out the appropriate bail amounts having regard to the seriousness of the offences charged. However, there are no separate guidelines for minors who are guaranteed special protection under the law.
Conditions While in Detention
Despite international texts which have established the minimum standards for the treatment of children in detention and recent rulings by the Supreme Court of the Philippines, such as the Rule on Juveniles in Conflict with the Law, any positive treatment of children in Philippine jails is rare and often provided by NGOs rather than the State. Since the previous alternative country report on the Philippines for the Human Rights Committee the conditions of abuse of children in detention has not changed. In fact, conditions have grown worse as poverty increases and more and more children are marginalized in society and families are breaking up in the desperate search for food.
In the Philippines, children as young as nine years old could be tried as adults, and subsequently sent to adult jails. Although Philippine law stipulates that children with pending cases should be brought to the YDCs, in most cases, this has not been possible since only a dozen of these centres exist in the entire country, and they are usually full. According to conservative estimates, the number of children in jails has grown to more than 20,000, or 10 percent of total prison population.
While in detention, the children are treated almost identically as adult inmates. In some of the jails visited by PREDA, the children were detained in separate cells from the adult prisoners. In the others, they were crammed into small cells along with convicted adult prisoners. In all of the jails, PREDA documented that the children mixed freely with convicted adult prisoners. In many of the jails, the children were made to perform massages on police officers and adult inmates in exchange for small amount of money or food. In addition, children are often beaten and abused by senior prisoners, called the "Mayors" or the trustees. The children are repeatedly sexually abused, forced to do sex acts on the older prisoners and they are raped. Not to co-operate with the wishes of the senior prisoners or to complain would be a reason for severe beatings or even murder. The right of the children to be treated in a manner conducive to their rehabilitation is denied in all cases. None of the children were provided with adequate exercise, and no attempt has been made to provide them healthy mental stimulation or rehabilitation.
Sanitary conditions vary from jail to jail. In some, like the Tarlac Provincial Jail, conditions appeared acceptable, while at the Angeles City District Jail and the San Fernando City Jail, both in Pampanga Province, the conditions posed a serious health risk to prisoners, including the child detainees, and detention in these two facilities amount to cruel, inhuman and degrading treatment. In many of the jails visited by PREDA, the children were made to provide their own bedclothes, clothing and sanitary items. In some of the jails, the children were made to sleep on the bare concrete floors or on very uncomfortable benches. In most of the cases documented, the children were initially detained at police stations and were forced to provide for their own food often for weeks before their eventual transfer to a jail facility.
The following paragraph further gives a description of the general conditions in five of the city and provincial jails visited by PREDA:
Angeles City District Jail: The children are detained in a small, unventilated, concrete cell measuring approximately 3x7 meters. The cell lacks a window and the children have only been recently been given access to an electric fan. There is a concrete cubicle/toilet in the corner of the cell. The cell is located in a block containing over a hundred convicted adult prisoners. Prisoners of all ages mix freely throughout the block. The same cell is always used to house male children. Reports from adult inmates indicate that the cell was used to contain up to 15 children. The jail does not supply any bedding or basic sanitary items. The children are not given any change of clothes and commonly wear rags. There have been recent reports of a Hepatitis and Tuberculosis epidemic in the jail. The children have only a maximum of a single hour of exercise a day, which they still have to request. They can have access to a small basketball hoop in the yard. Nonetheless, the children are allowed five hours a day to walk freely around the block and mix with the adult detainees. There are no mental stimuli of any kind provided to the children, who report being underfed. The daily food budget per child is PhP 30 or roughly US 0.55 cents.
Tarlac Provincial Jail: Has the highest standards in all of the jails visited by the PREDA team. It is a big, open-spaced prison. There is a large basketball court and open area surrounded by jail cells. It is clean, and quite cool. There is a constant supply of fresh water. The dining area has bench seating and is clean. The food is reported to be of a high standard, with meat like pork served regularly. However, similarly to other jails, the food budget is PhP 30 per prisoner per day. Health and sanitary conditions at the jail are reported by the minors to be high. All sick inmates are segregated from the others. Hence there are no reports of any epidemics, skin problems etc. Children in the jail share the same cell, which measures approximately 6 square meters. At the time of the visit, there were 4 boys in the jail, sharing the same cell. Each detainee has a bed. However, the Team was informed that at one time there were 13 minors in the same cell, meaning that some of the minors were forced to sleep on the floor. Bedding is supplied to the minors by the jail authorities. There is a CR facility in the corner of the minors' cell. It is not of a very high standard, but was found to be clean on inspection, with no insects or apparent foul odor. There is no educational stimulus provided to the children apart from weekly Bible studies. The children are confined to their cells only in the evening. During the day, they are free to mix with the adult prisoners and also to play sport.
Baguio City Jail: From outside appearances, the jail is quite small. Due to the use of basement cells, the jail is still large, with approximately 160 prisoners detained therein. The jail is dilapidated and in great need of repair. There is a small basketball court in a square in the middle of the jail. The cells for are located in the basement, in a dank and unventilated area. Apparently the basement cells were previously used as a solitary confinement area for adult prisoners. The steps down to the cell resemble steps to a dark dungeon. The lighting below is poor. Adjacent to the cells containing the children is another for convicted adults, with the children sleeping within 5 yards of them. Only bars separate them. The space provided for the children is minimal. While most of them have bunk beds, the younger ones are forced to sleep on a large table, without any bedclothes or mattress provided. The children reported that apart from weekly bible studies, there is no mental stimulus provided by the jail authorities. An NGO does provide limited amounts of education to the minors for two hours per day, three days a week. The minors do get 4 hours each day for exercise. They reported that they spend time playing cards, and gambling with adult prisoners, however they do not admit to being given alcohol. The children are fed twice a day with lunch and dinner. In general, they did not complain about the food. Sanitary conditions are reported to be passable. Toilet facilities are located outside the cells of the minors, and are basic but relatively clean and without a foul odor. There is a constant supply of fresh water. However, the dankness of the cells would suggest that virus and bacteria could spread easily and constitute a grave health risk. As Baguio is quite cool even in the summer, the children said that their cell rarely became unbearably hot.
In Navotas jail (Metro Manila): Preda visited the site on November 10, 2004. Currently, there are 750 inmates, although the available space can only accommodate 200 persons. The children are mixed with adults. Thirty minors are detained with sixteen adults in cells sizing 15 by 25 meters. In another cell children are crowded in one area, which has little ventilation and no space for normal exercise, privacy, or any form of human stimulation. The jail is built on a former swamp. The cells are flooded with up to two feet of filthy water that carries the contents of household and prison septic tanks, floating excrement is common at these times. If it is high tide in the nearby fishing port, the hundreds of inmates crammed behind bars in suffocating humid conditions climb on shelves and stools to escape the rising waters. Like rats in a cage they panic every time the floodwaters come steadily in to the cells. Also the 22 or so children climb the bars and cling there for hours to escape the contaminated waters and the flotsam of human waste from flooded septic tanks. But when the adult prisoners locked in with them take all the stools they can only hold on to the bars for so long. Exhausted then drop into the black slime. The cell beside the boys cell is so packed that sleeping on the concrete floor is impossible all together. They have to take it in shifts to lie down. The heat and humid heat is unbearable and the only respite is an electric fan. These are in short supply when there are 90 men crowded in a space good for twenty. They are malnourished and have red blotches of skin diseases, which are prone to infection. Cholera and typhoid is another deadly danger they all face besides tuberculosis and HIV-AIDS. The only food allowance for is 50 cents a day, but the weak do not get a fair share. 46
Mandaluyong City Jail (Metro Manila): 873 prisoners are detained in this prison although the facilities are only good for 200 inmates. The jail consists of 5 cells of which one for minors, in which 37 children were detained. Guards restricted access to the prison. However, Preda reports that the conditions seem similar to those of the above-described jails. 47
See Annex 1 for Sample Case Studies Documented by PREDA
Secret Cells for Children:
Documented Case of Abuses in a Government Center
Established in 1998, the Olongapo Center for Assistance, Rehabilitation and Empowerment (OCARE) was a project of Richard and Kate Gordon. Olongapo City won the award for the most-child friendly city of the Philippines in 2000 and 2002.
In February 2003 Swedish student researchers visited OCARE and interviewed 18 street children in Olongapo City and described inhuman and degrading conditions of detention, particularly the existence of secret cells where children between 8 and 15 were frequently locked up and mistreated.
After the issue was highlighted in a report on the Philippines to the Human Rights Committee 48, the Filipino government undertook action to change the appalling situation. The cells were cleaned for several months, no further detention of children was reported. However the detention center is now in the Olongapo City Jail. This was an alternative arrangement made by the city administration Olongapo City by the then Mayor Katherine Gordon. On November 9th Preda visited the Olongapo Jail Station A. On 16 square meters ten minors are detained they said not to have been abused. There is a toilet in the cell, but no beds. Hence, the children are forced to sleep on the cement floor. The jail does not provide for any recreation for the children, no television, games, sports or exercise yard. They are in 24 hours detention. The walls are dirty and the jail is full of insects, but no mosquito screen is provided. The children are dependent on their relatives for food. No medical check-up is available to the inmates. 49 The situation is certainly not ideal but the children do not seem to be ill-treated.
Section 4 of Rule 114 of the Revised Rules of Criminal Procedure, all persons
shall be admitted to bail as a matter of right. Similarly under section 13 of
the Philippine Constitution, it is stated that "excessive bail shall not be
required." The only occasion bail is not applicable, under the Constitution,
is where the offense is one which is punishable by death or life imprisonment,
and where evidence of guilt is strong. As all minors are subject to sentences
one or two degrees lower than adults - the mitigating circumstances rule of
Article 68 of the RPC - it is therefore only on rare occasions that bail
should be refused for a minor.
46 From the Streets to the Jails, Street children victims of prison torture, by Fr. Shay Cullen and Francis Bermido, Preda Foundation Philippines, November 2004.
47 From the Streets to the Jails, Street children victims of prison torture, by Fr. Shay Cullen and Francis Bermido, Preda Foundation Philippines, November 2004.
48 State Violence in the Philippines. An alternative report to the United Nations Human Rights Committee, OMCT, January 2004, p.95.
49 From the Streets to the Jails, Street children victims of prison torture, by Fr. Shay Cullen and Francis Bermido, Preda Foundation Philippines, November 2004
By virtue of Article 37 paragraph a CRC which states that ; "neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age", the Philippines is exempted from instituting the death penalty against a minor. The death penalty was abolished in 1987 but reintroduced in 1993, but its imposition on children was explicitly prohibited. Section 22 of Republic Act (RA) 7659, which amended the Revised Penal Code in order to provide for the death penalty, stipulates that persons below the age of 18 at the time the crime was committed cannot be subject to the death penalty. In addition, Article 68 of the Revised Penal Code, which sets out sentencing procedures for youth offenders, also prohibits the death penalty for minors.
A main discrepancy in the Filipino laws is the absence of any provision, which requires a formal ascertainment as to whether the suspect is below the age of 18. This is the main reason for several children to have been placed on the death row. The problem stems from the assumption by the police, court and social workers that most teens are over 18. Moreover, the concerned authorities rarely take the time to track down the birth certificates of impoverished children who are convicted of capital offences like murder and rape and failure to raise the issue of minority during trial by either defence or prosecution presented evidence.
August 9, 2004 acting Justice Secretary Ma. Merceditas Gutierrez visited the 6 youth offenders sentenced to death and confined at the Bilibid Prison in Muntinlupa City. Ma. Merceditas who is also Chair of the Special Committee on the Protection of Children said that minors are exempted from capital punishment, but during the time of their trial the six offenders have not presented any evidence regarding their minority. The six were transferred from the death row to the Medium Security Compound so they will not be mixed with adults on death row. In addition, she assured that she will look into their case, but before the government can grant any executive clemency, the decision of the court must become final. 50
Although the latest developments indicate that the situation of the 6 minors on the death row is about the change. OMCT urges the government of the Republic of the Philippines to take immediate action to remove the death sentence of the 6 minors currently on the death row. In addition, OMCT strongly recommends the Filipino government to pass a law, which obliges authorities to formally inquire into the age of the subject in order to prevent minors being placed on the death row in the future.
1) Regarding the protection against torture and other cruel, inhuman and degrading treatment or punishment in the Philippines:
OMCT recommends that the Committee on the Rights of the Child asks the government of the Philippines to comply with its international obligations under the CAT and pass a law criminalizing torture and particularly to provide with effective and heavier sentence when the victim is a person under 18 years old.
2) Regarding arbitrary execution, extrajudicial killings and especially the numerous cases of killings by the Dava and Digos Death Squads:
OMCT recommends that the Committee on the Rights of the Child asks the government of the Philippines to stop the arbitrary executions and to order a thorough and impartial investigation into the circumstances of these events in order to bring those responsible to trial and apply the penal and/or administrative sanctions as provided by law.
3) Regarding sexual exploitation:
Concerning the absence of determined age of sexual consent, OMCT encourages the Philippines to engage a debate at all levels in the society to discuss the age of sexual consent in a sense that could help to struggle the problem of sexual exploitation.
OMCT welcomes the initiatives taken to tackle sexual exploitation, particularly programs ruled by children themselves in order to make other children sensitive to this matter. However, this remains incomplete and OMCT recommends that the Committee on the Rights of the Child asks the government of the Philippines to adopt international and national legislations which purpose is to protect children from all forms of violence, such as commercial, sexual exploitation, child abuse and child trafficking.
OMCT also recommends that the Committee on the Rights of the Child asks the government of the Philippines to effectively implement the current legislation that prohibits sexual exploitation, child prostitution and trafficking of children and to prosecute officials involved in this crimes.
OMCT also recommends that the Committee on the Rights of the Child asks the government of the Philippines to strengthen the repression against paedophiles, particularly those from foreign countries and also to provide with material and personal means to struggle internet networks of paedophiles and pornographers.
OMCT recommends that the Committee on the Rights of the Child asks the government of the Philippines to actively engage in the fight against the spread of HIV/AIDS and set up specific programs to sensitize children to the importance of this issue, particularly by providing for adequate sexual education and promoting the use of condoms.
4) Regarding children in situations of armed conflict:
OMCT recommends that the Committee on the Rights of the Child asks the government of the Philippines to comply with Article 38 paragraph 4 of the CRC under which a State is under the obligation to ensure protection and care of children affected by armed conflict in accordance with its duties under international humanitarian law.
OMCT welcomes the efforts made by the Philippines to comply with the international standards with respect to legal protection of children from military recruitment and use but OMCT remains concerned by the use of under 18s by rebels armed groups and recommends that the Committee on the Rights of the Child asks the government of the Philippines to develop an action plan concerning this problem. In this regard, OMCT would like to remind the Committee that educational and economic and social background is highly linked with the recruitment of children in armed opposition groups.
5) Regarding minimum age of criminal responsibility:
OMCT recommends that the Committee on the Rights of the Child strongly asks the government of the Philippines to adopt the proposed Comprehensive Juvenile Justice Bill (S.B. 1402), which raises the age of criminal responsibility from 9 to 12 years old and reforms the juvenile justice system in order to follow the provisions laid down in the CRC;
and to, clarify the wording "act with discernment" and ensure that it will be applied consistently by the judges according to each particular case.
6) Regarding the issue of children in conflict with the law, OMCT recommends that the Committee on the Rights of the Child asks the government of the Philippines to:
reform the legal frame ruling children in conflict with the law by clarifying the current laws particularly the proceedings and create a criminal system specific to children that will be a real juvenile justice system;
enable the effective access to legal assistance from the arrest;
ensure that, where an accused claims to be a child and objectively has the appearance of a child, the burden of proving the age of the accused is shift to the State. Such an accused should be treated as a child unless/until his majority is proved;
ensure that child's parents and the Department of Social Welfare and Development have been informed within 8 hours after the arrest;
ensure that the officer conducting the preliminary examination ensures that the contact details of the accused, including his place of detention, are sent to the PAO together with the subpoena and affidavit of complaint in the event the accused child cannot afford private legal representation;
ensure that the arrested child is consistently informed by an officer of the reason of his or her arrest and possible custody and of his or her rights;
ensure that the arrested child has effectively been delivered to the proper judicial authorities within the required time limits and that his or her case has been examined;
clarify children's rights during police custody, interrogation, for instance by setting disallowed questions in the absence of a social worker or legal counsel and to create a system that enable to monitor the proper enforcement of the procedures - this could be easily controlled with the presence of a legal counsel or social worker from the beginning of the procedure (particularly during all post-arrest interviews) and/or with the record by the arresting officer of each stages of the procedure from the arrest (inquiry about age, use of handcuffs, medical or physical examination, get in touch with the guardians, information about the rights, etc.).
7) Regarding the deprivation of liberty, OMCT recommends that the Committee on the Rights of the Child asks the government of the Philippines to:
ensure that pre-trial detention is only used as a measure of last resort or at least for very short periods of time in compliance with international and national standards;
provide judicial personnel with training in order to sensitize them to consistently use of the pre-trial detention and make them aware of the principle of presumption of innocence, including for children.
change PD 603 so as to also include children who turn 18 before conviction and hence can benefit from the suspension of sentence provisions.
ensure that deprivation of liberty, particularly as a sentence, is used as a measure of last resort and that no child is detained with adult prisoners.
ensure that the procedure prescribing judges to visit children in jail is consistently applied; in this regard judges may be replaced by trained social workers.
enforce the current legislation protecting from arbitrary detention.
establish additional holding centres for juveniles in order to accommodate the number of CICL and consequently prevent children being imprisoned with adults. The government should create a strong incentive for the local governments to comply with PD 603, or centralize the provision of YDH- and YRCs.
8) Regarding the situation of children in the death row, OMCT recommends that the Committee on the Rights of the Child asks the government of the Philippines to take immediate action to remove the death sentence of the minors currently on the death row. In addition, OMCT strongly recommends the Filipino government to pass a law which obliges authorities to formally inquire into the age of the subject in order to prevent minors being placed on the death row in the future.
ANNEX 1: Situation of discrimination against Filipino children
The principle of non-discrimination is a fundamental principle for the implementation of the Convention. Laws in general and the 1987 Constitution of the Republic of the Philippines Article II recognize the general principle that all citizens are equal before the law and entitled to equal protection of the law. Considering the general situation of discrimination against children in the Filipino society it appears that there is discrimination against religious groups and gender discrimination of which children form a part. In addition, it used to be the fact that children of single or divorced parents were refused access to private or Catholic schools. However, in 2002 the secretary of Education ordered all schools to abandon these discriminatory practices. 51
Discrimination against religious minorities
Although approximately 90% of the population is Christian there is a clear separation between church and government and no state religion. Freedom of religion is also established in the education system. However, Islamic Schools, the so-called madrasses, are not financed by the government. Most madrasses are located in the ARMM province and comprise a total of approximately 2000 schools. Not even 15 % of these are registered at the department of education. On February 18, President Gloria Macapagal-Arroyo issued Executive Order No. 283 which establishes for the Madrassa Development Coordinating Committee (MDCC) tasked to manage financial assistance to the madrassa system from local and international sources. 52
Of the 32,1 million Filipino children boys are slightly in the majority with 51%. 53 A 1998 study by the International Food Policy Research Institute reports an overall lack of discrimination against females, which is well-integrated into the structure of the Filipino family. The Filipino society is considerably more gender egalitarian compared to neighbouring East-Asian countries; there are no striking differences between boys and girls with respect to school enrolment, distribution of food or health care.
ANNEX 2: Sample Case Studies Documented by PREDA
The individual case studies featured in this section are part of a study conducted by PREDA. They are, as far as possible, compiled from court records, and interviews with the children in detention, prison authorities, and the relevant State-appointed legal counsel and social workers. The names of all children have been altered in order to protect their identity.
Name: Clark (as of 20.11.2002)
Number of Visits by Parents: 1
Arrest Warrant: None
Manner of Arrest: Handcuffs were used. Upon arrest, Clark reports that the complainant, in the presence of the police, hit him using a wooden stick measuring 2 inches wide and 2 inches thick.
Rights Explained Upon Arrest: No
Physical and Medical Examination Upon Arrest: No
Parents Informed of Detention (Within 8 Hours): No
Visit from Social Worker: No
Duration of Stay Under Police Custody: One and half months in Station A, Olongapo City
Memory of Inquest Investigation: Yes, 2 days post-arrest at the Fiscal's Office, DOJ
Previous Convictions: Previous charges for theft were dismissed
First Appearance in Court/Access to a Lawyer: 27.09.2002, arraignment conducted 6 weeks after time of arrest
Court Orders: Pre-trial, 29.10.2002, next hearing set for 01.10.2003
Total Period of Detention in Adult Jail: 3 months, 10 days and counting
NOTE: Clark also reports suffering physical abuse at the hands of the Olongapo Police during his arrest. He has had no opportunity to complain about this abuse. It took six weeks for Clark to be arraigned although without any reason for delay/ Although his parents are willing to take custody pending trial, no efforts have been made.
Name: Noel (as of 20.11.2002)
Arrest Warrant: Originally arrested in flagrante delicto. However he was released on recognizance to his mother on 02.04.2002. After which, he failed to turn up to court hearings so he was arrested by warrant issued on 01.10.2002.
Manner of Arrest: Handcuffs were used upon his initial arrest. He also reports being beaten with a cane by police. He also claims that he was electrocuted by police using a live wire under his arm, to force a confession in Station A, Olongapo City where he was kept for two weeks after his initial apprehension.
Rights Explained upon Arrest: No.
Physical and Medical Examination Upon Arrest: No.
Parents informed of detention (within 8 hours): Yes, but not within 8 hours.
Visit from Social Worker: No
Duration of stay in police custody: 2 weeks
Memory of Inquest Investigation: At OPP in Olongapo City
Previous Convictions: No, but there are 2 cases currently against him.
First Appearance in Court/Access to a lawyer: No record in court file of an arraignment.
Court Orders: 15.11. 2002, pre-trial terminated and set for initial hearing for 02.04.2003.
Total period of detention in adult jail: Almost 8 months and continuing.
NOTE: It is not clear from said minor's court file when, or even if the accused was arraigned. Noel reports serious physical abuse at the hands of the police during and after his arrest, including electrocution. He has had no opportunity to complain about this treatment.
Name: Dan (as of 15.08.2002)
Age: 11 (age 10 at time of arrest).
Arrested: Mid-February 2001.
Charges: Theft committed with violence against the person. Stolen goods amounting to total of PhP 23,000 (Equivalent to US Dollars $460).
Manner of Arrest: No arrest warrant. On arrest Dan reports he was handcuffed and brought to a cemetery along with another 2 minors. In the cemetery the complainant identified them as the thieves, and apparently requested the police to beat them. The police beat the children. The complainant was also given the opportunity to beat them. Dan says that in the cemetery he had his hands tied to a wooden post above his head while he was beaten. He claims he was punched and kicked on his behind, and also had cigarettes stubbed out on his legs. There is a faded scar on his leg which Dan says is a result of the cigarette burns. Apparently, around fifteen policemen were present during the episode in the cemetery. They were then brought to Masinloc jail.
Physical and Medical Examination Upon Arrest: No
Parents informed of detention: Yes.
Visit from Social Worker: No
First Appearance in Court/Access to a lawyer: 06.03. 2001 (after 19 days in Masinloc jail). No Attorney present. They were then ordered to be transferred to a YRC pending arraignment and trial.
Arraignment: 13.03. 2001. Represented by PAO Attorney. Bail was set at PhP 100,000 each (equivalent to US $ 2,000).
Total Period of Detention in Adult Jail: 19 days.
NOTE: Dan knew that his trial was ongoing, but had little idea about the actual proceedings. He did not know his lawyer's name. He also felt scared to report any abuses done by the police, although he did inform the social worker at the Regional Youth Rehabilitation Center in Magalang after he had been transferred. While the social worker confirmed the instances of abuse, no further action was taken by the social workers. Dan's bail was set at the equivalent of USD 2,000 - despite the fact that he was only ten years of age at the time. Such an amount must be viewed as a breach of Dan's constitutional right to bail and his right to the presumption of innocence.
Name: Marko (as of 25.11.2002)
Date of Arrest: 22.05. 2001 (when he was aged 16).
Charges: Qualified Theft (2 Counts).
Manner of Arrest: No arrest Warrant. Handcuffs were used.
Informed of Legal and Constitutional Rights: On arrest he was informed of the reason why, however he was never informed of his right to counsel, right to silence etc.
Other details: At his post-arrest interview, he had neither his legal counsel nor his parents present. He claims that he was never asked to sign a custodial investigation report. His parents first visited him after 2 weeks (it is not confirmed when they were informed of his arrest). First social worker visit after 1 month.
Physical and Mental Examination: No.
First Appearance in Court: Marko was set to be arraigned on 12.11.2002, nearly 18 months after his arrest. The case was being transferred to another court at the last minute and his arraignment was postponed. Marko denies ever having been present at any inquest investigation or preliminary investigation after his arrest. Marko has therefore yet to receive the opportunity to question the legality of his detention. It also appears from his case file that the complainant expressed her wish more than a year ago to drop the charges as she is not willing to present evidence against him and has left the country to live in America.
Total Period of Detention in Adult Jail: 1 year, 6 months and continuing.
NOTE: Marko's predicament is an example of excessive delay. The delay appears to be the fault of the Office of the City Prosecutor, which appears to have let the case lie dormant for a year. The Prosecutor's Office pressed charges against Marko on 30.08.2002, more than a year after he was placed in jail. The prosecutor stated that the delay was caused by her massive workload. Marko's rights under Article 125 of the RPC have been breached. It also seemed that he was not provided the opportunity to submit any evidence during the preliminary investigation. As Marko is now 18, he is no longer avail of the rights under PD No. 603 afforded to children who have come into conflict with the law.
Name: Tonton (as of 15.07.2002)
Date of Arrest: 13.04.2000 (age 14).
Manner of Arrest: Tonton does not remember an arrest warrant being used. Handcuffs were used during his arrest.
Initial Detention: Initially held in a military camp for 2 days. Subsequently transferred to Iba Provincial jail after 2 days without any court order or court appearance.
Medical and Physical Examination: No.
Parents informed of detention: Yes.
Visits from Social Worker: Yes. 03.05.2000 National DSWD conducted a report into Tonton's case and recommended his transfer to a juvenile detention center. Apparently, local DSWD blocked the transfer as the complainant (Tonton's aunt) worked there.
First appearance before judicial authorities/meeting with lawyer: Tonton could not remember exact date but felt it was more than a month after initial detention. Bail was set at 20,000 Pesos (equivalent to US Dollars $400).
Number of Subsequent Court Hearings: According to Tonton only 3 court hearings in 2 and a half years in Regional Trial Court, Iba, Zambales. Trial adjourned for various reasons on all 3 occasions.
Released to custody of Mother: 09.08.2002 Case ongoing.
Total time spent in adult Jail: 2 years, and 4 months.
PREDA Action: DSWD contacted and asked for immediate explanation. PAO and judge also contacted. DSWD finally took action towards having Tonton released.
NOTE: Tonton remembers signing a confession admitting his
guilt for the crime. He reported that the confession was signed in the absence
of a legal counsel or a social worker. It is apparent that Tonton spent nearly
2 years and a half in jail among convicted adults without any regard to his
right to a speedy trial or due process. The delay in the case was a result of
the complainant's ability to influence the administration of justice through
her post as a DSWD social worker. Tonton's transfer to an appropriate center
As of 8th November 2002
|Children in Jail||Age of Minor on Arrest||Warrant shown on Arrest||Handcuffs of unnecessary Force used||Physical and Mental Exam||Parents of Social Worker Informed||Brought to Court/Met legal Counsel||Education Mental Stimuli Provided||Separate Detention from Adults||Period Spent in Adult Jail|
|No||Yes||No||Yes||After 64 Days||No||Adjacent Cell||1 yr, 2 Weeks +|
|2. Clark||15||No||Yes||No||No||After 6 weeks||No||Adjacent Cell||100 Days +|
|3. Noel||17||No||Yes||No||No||TBC||No||Adjacent Cell||9 Months +|
|4. Junjun||12||No||No||No||No||After 21 Days||No||Adjacent Cell||36 Days|
|5. Hadji||17||No||No||No||Yes||After 16 Days||No||Adjacent Cell||112 Days|
|6. Bernard||17||No||Yes||No||No||After 42 Days||No||Adjacent Cell||70 Days +|
|7. Nico||17||No||No||No||No||After 74 Days||No||Adjacent Cell||107 Days|
|8. Dan||10||No||Yes||No||Yes||After 19 Days||No||Yes||19 Days|
|9. Marko||16||No||Yes||No||No||Not Yet||No||Same Cell||18 Months +|
|10. Martin||15||No||Yes||No||Yes||TBC||No||Same Cell||30 Days|
|11. Nadia||15||No||No||No||No||Not Yet||No||Same Cell||5 Months +|
|12. Tonton||14||No||Yes||No||Yes||After 30 Days +||No||Same Cell||28 Months|
|13. Marvin||14||Yes||No||No||Yes||After 30 Days +||Yes (NGO)||Adjacent Cell||32 Days +|
|14. Gerry||16||No||No||No||No||+5 Months||Yes (NGO)||Adjacent Cell||9 Months +|
|15. Rudy||16||No||Yes||No||No||After 19 Days||Yes (NGO)||Adjacent Cell||4 Months +|
1. Minors in Navotas, Metro Manila prison during October 14, 2004 visit of Preda.
2. Minors in Navotas, Metro Manila prison during November 10, 2003 visit of Preda.
3. Caloocan City Jail, Metro Manila - April 23, 2004, visit of Preda: as many as 80 child prisoners in 1 room are detained which are also accessed by adult prisoners.
Researched and written by: Froukje Boele
Co-ordinated and edited by: Cécile Trochu
Director of the publication: Eric Sottas
Geneva, December 2004