E yuAFFIRMATIVE

Children are children are children. This is the basic premise of the why the law exempts children under or over fifteen (15) years of age or those who are above fifteen (15) years of age but below eighteen (18) who did not act with discernment from criminal responsibility (Sec 6. RA 9344). The basis of exemption from criminal liability is the complete absence of intelligence and freedom of action of the offender which is an essential element of a felony either by dolus or by culpa (Art 12, Paragraph 3 of the RPC in connection with Art 3 of the RPC). Borrowing from the words of Justice Albert himself:

“The second element of dolus is intelligence; without this power, necessary to determine the morality of human acts to distinguish a licit from an illicit act, no crime can exist, and because ... the infant 3 (has) no intelligence, the law exempts (him) from criminal liability1.”

Therefore, in differentiating adult offenders from child offenders is that the former are assumed to be intelligent and fully discerning beings due to their age whereas the latter are not.

But statistics speak for themselves. Crimes involving minors rose by 18% in 2008, just two years after the enactment of R.A. 9344. In the same year, cases of drug use rose by 28%; from 113 reported cases in 2007 to

1 GUEVARRA, vs. ALMODOVAR (1989; G.R. 75256)

145 in 20082. Things have not gotten any better. According to Council for Welfare of Childern (CWC), CICL were highest in NCR (8,807), followed by Central Visayas (1,631) and Western Visayas (1,002). (JJWC, 2009). Prevalent Types of Crimes – 4,246 CICL in 2010 were mostly property-related crimes (PNP, 2010) with theft being the highest (1,631 cases) and robbery was the 3rd highest (380 cases).

The Nature of Juvenile Offenders

** I have inserted this part because of the all too possible rebuttal from the affirmative side that most children in conflict with the law (CICL) are those who have attained a low level of education and the solution therefore, is not a lowering of the age of crim. Responsibility, but a strengthening of social efforts on the part of the government to actually guide children to leading a lawful life **

According to CWC, majority of CILC’s are: 1. Male, 2. Have a low educational attainment, 3. Belong to large, low earning families, and 4. Charged with property related crimes.

To rebut this argument from the affirmative side, I think it is important to give an overview of how criminal jurisprudence differentiate discernment, intelligence, and intent –for these are the three governing factors on why children are exempted from punishment

Step 2 is to show that there is no relation between educational attainment and the intelligence and discernment considered by criminal law, as proven by the long line of cases decided by Philippines courts.

Intelligence is the power necessary to determine the morality of human acts to distinguish a licit from an illicit act, as opposed to discernment which is the mental capacity to understand the difference between right and wrong. Discernment is also different from intent, which is:

(a) design; a determination to do a certain things; an aim; the purpose of the mind, including such knowledge as is essential to such intent;. . .; the design resolve, or determination with which a person acts.' (46 CJS Intent p. 1103.)3

From the foregoing, it is clear that the terms "intent" and "discernment" convey two distinct thoughts. While both are products of the mental processes within a person, the former refers to the desired of one's act while the latter relates to the moral significance that person ascribes to the said act. Hence a person may not intend to shoot another but may be aware of the consequences of his negligent act which may cause injury to the same person in negligently handling an air rifle. It is not connect, therefore, to argue, as petitioner does, that since a minor above nine years of age but below fifteen acted with discernment, then he intended such act to be done. He may negligently shoot his friend, hus did not intend to shoot him, and at the same time recognize the undesirable result of his negligence4.

In People v. Doquena (68 Phil 580. 1939) the court defined discernment as a person’s – or particularly, a child’s – mental capacity to understand the difference between right and wrong. The court further held in 2 Quismindo, Tarra. Philippines Daily Inquirer; “Juvenile Crimes up by 18% -- PNP”. February 10, 2009. 3 Ibid4 Ibid.

People v. Navarro ([CA[51 O.G. 4062] that discernment also includes the mental capacity of a minor to fully appreciate the consequences of his lawful act5.

How then does the court determine if the juvenile offender has in fact committed a felonious act with discernment? The affirmative side wants us to believe that the ability to tell which is right from which is wrong is imparted unto the tender minds of the youth by educational institutions. But such is not the case in Philippines Jurisprudence, for while it is indeed true that education plays so important a role in the lives of you, it is but in loco parentis or in place of the parent. Parents have the natural right and duty to raising their children; such is enshrined in the Constitution and our Civil Code.

More importantly, the Philippine courts, in determining discernment, do not resort to determining the educational attainment of the youthful offender. Discernment is proven by:

1. Evidence of physical appearance, 2. Attitude or deportment not only before and during the commission of the act, and3. Attitude also after and during the trial.

Thus in People v. Doquena, the 13 year old petition was convicted for homicide for stabbing a playmate after a game of volleyball turned sour, the Supreme Court affirmed the CFI of Pangasinan’s decision on the grounds that the behavior of the accused before, after, and during the commission of the crime show that he had acted with discernment in that he, in order to exact revenge on the person of the decease for PUNCHING him in the face, tried to look for a stone which he intended to use against the deceased but upon failing to find such, he asked his cousin for a KNIFE. And when the cousin refused to give him the knife, he snatched it from the latter’s pocket. The fact that he was in Intermediate school was not the crux for the sustainment of the conviction; it served as but an additional and supplementary argument to strengthen the court’s conviction.

Likewise, in Niel Llave v. people of the Philippines, the minor was convicted of rape. In sustaining the lower court’s conviction, the supreme court held: 6

“In the present case, the petitioner, with methodical fashion, dragged the resisting victim behind the pile of hollow blocks near the vacant house to insure that passersby would not be able to discover his dastardly acts. When he was discovered by Teofisto Bucud who shouted at him, the petitioner hastily fled from the scene to escape arrest. Upon the prodding of his father and her mother, he hid in his grandmother’s house to avoid being arrested by policemen and remained thereat until barangay tanods arrived and took him into custody.”

The fact that petitioner was an outstanding student in his school was but an apropos to strengthen the grounds for conviction. In Madali v. People the conviction of the accused minors for rape was likewise sustained because of the fact that7:

“Rodel, together with his cohorts, warned Jovencio not to reveal their hideous act to anyone; otherwise, they would kill him. Rodel knew, therefore, that killing AAA was a condemnable act and should be kept in secrecy. He fully appreciated the consequences of his unlawful act.”

5 Padilla, Ambrosio. p. 375, 1998 Ed. Criminal Law6 Llave v. People of the Philippines, 2006. G.R. 1660407 Madali v. People (2009) (G.R. no. 180380)

Likewise, in Guevara v. Hon. Almodovar, the court held that minors may be convicted of a quasi-offense, so long as they act with discernment and were negligent.