House Bill No. 6052, titled "An Act Strengthening the Juvenile Justice System in the Philippines," was approved on second reading on May 8, 2012 in the House of Representatives of the Philippine Congress. Referring to "youthful offenders" and "children in conflict with the law," the bill seeks to lower the age of criminal responsibility from 15 to 12 years of age, provided that criminal responsibility attaches only when the minor "acted with discernment." Not only does HB 6052 [PDF] fail to provide clear, adequate standards aimed to assist the trier of fact in determining whether the minor indeed "acted with discernment," lowering the minimum age of criminal responsibility to 12 will open up the Philippines to a possible, if not plausible, breach of international law, customary law and treaty law alike.
The Philippines is a signatory to the UN Convention on the Rights of the Child (UNCRC). Article 1 of the UNCRC states: "For the purposes of the present Convention a child means every human being below the age of eighteen unless, under the law applicable to the child, majority is attained earlier." Article 40(3a) provides that state parties to the Convention shall seek to establish a minimum age below which children shall be presumed not to have the capacity to infringe the criminal law. While no particular minimum age of criminal responsibility can be found in the UNCRC, leaving it to the state parties to decide that question, Article 12(1) provides that "States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child."
There is no question that the power to pass criminal laws finds its basis in the general police power of states and that parties to the UNCRC have every sovereign right to determine their own threshold for domestic criminal responsibility. The question lawmakers in the Philippines and elsewhere ought to ask is: should criminal responsibility, especially juvenile criminal responsibility, be determined by age demographics and criminality? Or does juvenile delinquency and juvenile criminality have more to do with circumstantial poverty and greater social forces at work?
One's approach to the question will depend for the most part on whether one ought to view errant minors as victims of injustice on one hand or perpetrators of injustice on the other. Here, I follow Matthew Happold in that any legislative reform seeking to fix the threshold age of criminal responsibility should consider the tension between "victim" and "perpetrator," and that in all cases the trier of fact ought to be inclined to look upon the circumstances of a child as a victim of society, rather than an active agent of social injustice. While Happold turns to the moral dilemma of punishing child soldiers for war crimes, crimes against humanity and other internationally wrongful atrocities, he still considers acts of genocide committed by children as young as seven as an opportunity to revisit the appropriate, internationally acceptable age of criminal responsibility for domestic juvenile justice systems in developed and developing societies alike.
An examination of state practice would show that besides outliers such as England and Wales states which set the threshold age at ten there may be a trend at converging that age in the "mid teens." No doubt there can be scholarship refuting this claim, but the preponderance of literature seems to point to an international convergence of the minimum age of criminal responsibility regardless of any status of "discernment" as framed under any one's domestic juvenile justice laws at approximately fifteen years old.
One can, of course, argue that the standards for setting any minimum age for criminal responsibility for higher order crimes such as genocide should be distinguished from ordinary crimes and the ordinary workings of any juvenile justice and welfare system. But, if a child is incapable of criminal responsibility at the age of 15 for war crimes, can one then argue that national legal orders, such as the Philippines, ought to maintain that 15-year-old threshold for "ordinary" crimes like murder? Stated otherwise, one could indeed argue that if children are considered by lawmakers to be incapable of criminal responsibility for war crimes at 15, then national and local statutes should not hold them criminally responsible for lesser crimes at a younger age. The Philippines, however, seems to be going against the grain of international norms. On a more general level, notions of domestic criminal justice and international criminal law are often outcome determinative of one another. Each is simultaneously and reciprocally shaped through the interplay of the different system. In fact, a trier of fact will likely be apt to conclude that if a certain behavior ought to be criminalized in one sphere, it should be criminalized in another. The difference only lies with the degree and proportionality of punishment.
Even if Article 1 of the UNCRC would leave it up to individual domestic systems to determine criminal responsibility imputable to children under 18, the burden still lies with a state party to the UNCRC a treaty which the Philippines signed on January 26, 1990 to lay a rational social predicate for the new legal fiction (of age 12) for criminal responsibility. This is a burden which proponents of HB 6052 have arguably failed to discharge or demonstrate under international treaty obligations. Beyond formal black-letter treaty provisions, the UNCRC also envisions a legal order where states should gain a kind of "social situation sense" over the tension, or correlation, between criminality and under-aged criminals, on one hand, and criminality and endemic circumstantial poverty on the other. Ultimately, the more proximate problem may lie with implementation and proof law-in-action rather than formal changes in legislation the-law-in-the-books.
Edsel Tupaz is currently a private prosecutor of the House prosecution panel in the impeachment trial of Philippine Chief Justice Renato Corona. Tupaz is a public interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines. He is a graduate of Harvard Law School and Ateneo Law School.
Suggested citation: Edsel Tupaz, Phillipine Bill on Juveniles Could Breach International Law, JURIST - Hotline, May 15, 2012, http://jurist.org/sidebar/2012/05/edsel-tupaz-phillipines-juveniles.php.
This article was prepared for publication by Stephen Zumbrun, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at email@example.com