Children in Conflict with the Law and the Juvenile Justice Process THE EXPERIENCE IN THE PHILIPPINES

BREAKING RULES:Children in Conflict with the Lawand the Juvenile Justice ProcessTHE EXPERIENCE IN THE PHILIPPINES

Save the Children UK is a member of the International Save the Children Alliance, the world’sleading independent children’s rights organisation, with members in 27 countries and operationalprogrammes in more than 100 countries.

Save the Children works with children and their communities to provide practical assistance and,by influencing policy and public opinion, bring about positive change for children.

BREAKING RULES: Children in Conflict with the Law and the Juvenile Justice ProcessThe Experience in the Philippines

Published by:

Save the Children UK3/F FSS Building 189 Scout Castor Street, Quezon City, Philippines

Copyright 2004Save the Children – UKPhilippines Programme

ISBN: 971-92959-0-2

This publication is copyright but may be reproduced by any method without fee or priorpermission for teaching purposes, but not for resale. For copying in any other circumstances,prior written permission must be obtained from the publisher, and a fee may be payable.

Technical editing by: Wilma T. Bañaga

Book Design and Layout by: Dok Pavia

Photography by: Michael Amendolia/Network Photographers

Printed by: Art Angel Printshop

Cover Photo: Courtesy of Adhikain Para sa Karapatang Pambata – Ateneo Human Rights Center

List of Acronyms vii

Glossary viii

List of Tables and Figures ix

Acknowledgements x

Foreword xi

Executive Summary xiv

1 Introduction 1Objectives of the ResearchMethodologySignificance of the StudyOrganisation and HighlightsRelated Studies

2 Summary of Relevant InternationalInstruments and Philippine Legislation 17International LawsPhilippine LegislationBarangay LegislationLocal Ordinances

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Contents

3 Profile of Children in Conflict with the Law 21Poverty BackgroundGeneral Characteristics of Children in Conflict with the LawTrends in Offending

4 Children in Conflict with the Law atDifferent Stages within the Justice System 27OffendingUpon ArrestBefore Arraignment or TrialArraignmentSentencing by the Family CourtDetentionRehabilitationEarly Release and Aftercare Programmes

5 Diversion at Different Stages 39Experiences of Diversion in CebuExperiences of Diversion in Metro ManilaExperiences of Diversion in Davao

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6 Children’s Perceptions of their Experiencesin the Criminal Justice System 45Reasons for Committing OffencesViolence in the Hands of the AuthoritiesBribery/SettlementFailure to Protect the Privacy of CICLCICL and Legal RepresentationLocation of the ChildSituation in JailsEffect of Jail Experience on CICLCICL’s Attitude Towards Rehabilitation CentresLack of Awareness and Understanding of What was HappeningImproving Treatment and Reducing the Number of CICL in Metro Manila

7 Summary of Findings and Conclusions 53First Offenders Monopolise the Children’s Justice SystemCommunity-Based DiversionDiversion at the Level of the PoliceViolence against CICL and Failures in Due Process by Law EnforcersBailIncreased Budget to Improve Conditions in Custodial CentresLack of Access to Information and Failures in Due ProcessViolation of CICL’s PrivacyOutdated Law Works Against ProportionalityCourt Practice and Non-custodial SentencesConditions in Jails and Rehabilitation CentresPrevention of OffendingChildren’s Participation in CICL IssuesViolations and Denials of Children’s “Best Interest”

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8 Gaps and Issues Concerning Duty-Bearersin the Five Pillars of the Justice System 65CommunityLaw Enforcement – The Police and the TanodsProsecutionCourtCorrectionThe Roles of the Five Pillars and Policy Makers

9 Recommendations for Programme Workand Advocacy 77Working for the Best Interest of the CICL in the CommunityWorking for the Best Interest of the CICL at the Level of the PoliceWorking for the Best Interest of the CICL at the Level of the CourtWorking for the Best Interest of the CICL during Correction, Rehabilitation and Reintegration into the CommunityChildren’s Participation in CICL IssuesAwareness Raising on Child Rights and Prevention of Offending By the Five Pillars and Civil SocietyCo-ordination among the Five Pillars at the National and Local Levels

Annex: Flowchart of the Juvenile Justice Process 84

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LIST OF ACRONYMS AND ABBREVIATIONSAKAP-AHRC Adhikain para sa Karapatang Pambata – Ateneo Human Rights CenterBBRC Bagong Buhay Rehabilitation CenterBCPC Barangay Council for the Protection of ChildrenBCYW Bureau of Children, Youth and WomenBJMP Bureau of Jail Management and PenologyBrgy. BarangayCCCWPC Cebu City Council for the Welfare and Protection of ChildrenCCSW City Council Social WorkerCEDC Children in Extremely Difficult CircumstancesCICL Children in Conflict with the LawCJC Children’s Justice CommitteeCJP Children’s Justice ProgramCNN Cebu NGO NetworkCSU Civil Security UnitCSW Court Social WorkerCVO Civilian Volunteers OrganisationCWC Council for the Welfare of ChildrenCYRO Children and Youth Relations OfficerCYRS Children and Youth Relations SectionDILG Department of Interior and Local GovernmentDSWD Department of Social Welfare and DevelopmentFGC Family Group ConferenceFGD Focus Group DiscussionIRR Implementing Rules and RegulationsJJG Juvenile Justice GroupJWU Juvenile Welfare UnitLGC Local Government Code (1992)LGU Local Government UnitNAPOLCOM National Police CommissionNCSD National Council for Social DevelopmentNGO Non-Government OrganisationPAO Public Attorney’s OfficePAYO Philippines Action for Young OffendersPD Presidential DecreeRA Republic ActRCDD Regional Center for Drug DependentsRRCY Regional Rehabilitation Center for Children and YouthROR Release on RecognisanceRTC Regional Trial CourtSCUK Save the Children UKSPAG Special Police Auxiliary GroupUN CRC United Nations Convention on the Rights of the ChildUNICEF United Nations Children’s FundWCD Women and Children’s Desk

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GLOSSARYamin plead guilty; admit offence

arbor compelling someone to give a personal belonging to him/her (e.g. getting children to take off their clothes in exchangefor old and worn ones)

areglo arrange or settle

bagansiya vagrancy

barangay the basic political unit of the country and is consideredthe “primary planning and implementing unit of governmentpolicies, plans, programs, projects and activities inthe community” (Local Government Code, Sec. 384)

barangay tanod village or community police; presently known as the BarangaySecurity and Development Officer (BSDO)

barkada peer group or gang

bartolina a room without windows, often referring to a prison cellfor solitary confinement; any room that is poorly ventilatedor very small.

boreum self-mutilation

buntog colloquial term for prostitute; literally means quail; usedfiguratively, it implies the act of hopping from one partnerto another

delihensiya petty extortion

katarungang pambarangay village justice

lupon tagapamayapa peace-and-order or peace-keeping committee

mayor senior adult inmate

mingaw loneliness

takal being beaten with a 2" x 2" piece of wood

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LIST OF TABLES

Table No. Page

1 Sources of data by research site and data collection method 82 List of centres involved in the research studies per research site 93 History of domestic abuse, Cebu, 2002 254 Penalty and term of imprisonment for theft by value of property stolen

(1932 Revised Penal Code) 60

LIST OF FIGURES

The research sites 5

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Acknowledgements

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Save the Children-UK Philippines Programme wishes to acknowledge the contributions of thefollowing institutions and individuals who made this publication possible.

The three research teams who painstakingly collected the wealth of data presented in thisbook:

• Prof. Felisa U. Etemadi, Ching Li Ye and Cresencio Bermudez, Jr., whoconducted the research in Cebu;

• Mae Fe Ancheta-Templa, who spearheaded the research in Davao; and

• the Adhikain Para Sa Karapatang Pambata – Ateneo Human Rights Center(AKAP-AHRC), who did the study in Metro Manila;

John Parry Williams, former Social Protection Adviser of Save the Children-UK office inSoutheast Asia and who has been working on children’s justice issues globally for the past 30years, for putting together the highlights and recommendations of the three studies into thisdistinct piece of work;

Our partner organisations—the Tambayan Center for the Care of Abused Children, Inc. and theFree Rehabilitation, Economic, Education and Legal Assistance Volunteers Association, Inc.(FREELAVA), for sharing their experiences and insights with the research teams and forparticipating in the validation activities and the research presentation;

Representatives from the five pillars of justice—law enforcement, prosecution, the courts,correction and the community—in the three research areas, for actively participating in theresearch activities, reflecting on their own practice and sharing their own insights, experiencesand recommendations;

Save the Children-Sweden and the European Commission, for funding the research and theprinting of this book;

and most especially,

the children, whose life stories, thoughts and dreams are mirrored in every page of this bookand inspire the continuing work to promote and advocate for the rights of children who comeinto conflict with the law.

ForewordBREAKING RULES presents the summaryand consolidated findings of three researchstudies commissioned by Save the Chil-dren-UK in three key cities in thePhilippines—Metro Manila in Luzon,Cebu City in the Visayas and Davao Cityin Mindanao. These studies aim to exam-ine the trends in the statistics and the natureof problems and issues confronting childrenin conflict with the law (CICL) as they gothrough the formal justice system.

These studies intend to inform the currentwork of Save the Children-UK and its part-ners on Children‘s Justice, which aims tointroduce changes in the administration ofjustice for CICL at the local level using theprinciples of children’s rights and restorativejustice. The project emphasises the diver-sion of CICL at the barangay (community)and police levels, knowing very well thatchildren experience abuses as they gothrough the criminal justice system. Thisis done through the piloting of a diversionand prevention of offending programme forCICL in Cebu City at the barangay level,and through capacity-building and aware-ness-raising activities of the five pillars ofthe justice system, namely, law enforce-ment, the court, the prosecution, the penalsystem and the community.

At the community level, our partner non-government organisations (NGOs) andgovernment entities among the pillars ofjustice are developing support systems forchildren that will facilitate the reintegra-tion of former CICL and prevention ofoffending or re-offending. This comes inthe form of peer support groups—formerCICL trained to become peer facilitatorswho can reach out to other children at riskof offending in the communities. Adultvolunteers from the different communitiesprovide the children with another level ofsupport—monitoring of the progress offormer CICL who have been reintegratedinto their families and communities, andawareness-raising activities among parentsand other significant adults on child rightsand children’s justice issues. Children’s jus-tice committees composed of barangayofficials, members of the lupong tagapa-mayapa (village justice committee),community volunteers and other stakehold-ers conduct mediation sessions anddiversion.

While the methods and approaches needfurther refinement, gains from such a pro-cess are already evident. Most notable arethe high incidence of children being di-verted from the formal justice system andthe behaviour change among them. It can

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also be noted that duty bearers and stake-holders are participating and are involvedin the process of mediation, diversion andprevention of offending/re-offending.

Although several studies have been doneon children’s justice, most of these had verylittle quantitative data. Statistics usuallyfocused on children who are in prisons,while other studies used secondary data.Some studies attempted to present the na-tional situation, but fall short of providingan analysis of the different local contexts.Moreover, the perspectives of the childrenwere seldom highlighted. While the direc-tion of the recommendations arising fromthe studies seems clear in terms of nationalpolicies, concrete recommendations thatcan be carried out at the local context werenot clearly articulated. Given these, we de-cided to embark on the three studiesprecisely to inform the work that our part-ners are doing at the local level, whereimpact on the lives of the children is moreevident.

Addressing issues of children in conflictwith the law requires a holistic and inte-grated approach. More and more, CICL areviewed with suspicion and as a threat, anddelinquent children and youth are seen pri-marily as offenders who should be punished

and not as children and youth who presentclear needs and concerns. We need to cor-rect this perspective and approach the issuewith a clear rights perspective.

With this piece of work on Children’s Jus-tice, we hope to reflect on prevailingthinking and paradigms, value systems andpractises in addressing issues of children inconflict with the law. May this work re-mind us that:

• CICL have rights just like otherchildren

• CICL have needs, issues and concernsthat must be addressed in a holisticand integrated way.

• CICL are not just passive objects ofdisdain, concern or sympathy. Theyare members of society who canactively take part in their own devel-opment, and shape their ownenvironment only if they are providedvenues to do so.

• We must look at issues of CICL inthe broader context of family, com-munity and society. Addressing issuesof CICL means looking at underly-ing factors and causes that broughtabout this situation, and adoptingcomplementary strategies at the com-munity, local and national levels.

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• Programmes, policies and systems forintervention should be grounded onthe concepts and principles of preven-tion, protection and upholding thechildren’s best interests as embodiedin the United Nations Convention onthe Rights of the Child (UN CRC).

As we pursue our work on Children’s Jus-tice, it is important to challenge oldthinking and traditions, and explore new

and creative solutions to reframe existingpolicies, programmes and practices; andrestructure systems and organisations. Indoing so, we will be able to move toward amore responsive, relevant and rights-basedapproach in addressing issues of childrenin conflict with the law.

RRRRRooooowwwwwena D. Corena D. Corena D. Corena D. Corena D. CorderderderderderoooooProgramme Director

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This report presents the consolidated find-ings of three researches commissioned bythe Save the Children-UK (SC-UK) Phil-ippines Programme that looked into theprofile of children in conflict with the law(CICL), and their situation and experiencesin the justice administration process in thethree main urban centres in the Philip-pines—Metro Manila, Cebu City andDavao City.

This consolidation research summarises themajor findings and recommendations of thethree studies. It also articulates its own con-clusions and recommendations based onthe findings of the three studies. The studyalso discusses the concept of “restorativejustice” and the more specific process called“diversion” as an alternative approach tohandling cases of CICL.

Restorative justice is a system of justicewherein the offender and the victim arebrought together to undergo a process ofmediation in the community with the goalof restoring balance and harmony in thecommunity and with the offender makingsome form of reparation and/or apology tothe victim to repair the harm done. Diver-sion, which refers to the various processesby which CICL are prevented from enter-ing the formal criminal justice system, isone example of how restorative justice is

Executive Summaryapplied. With the abuses experienced byCICL as soon as they are caught commit-ting an offence and brought to theauthorities, with the violation of their rightsas they enter and go through the justiceprocess, and with the poor condition incustodial facilities, restorative justice be-comes imperative.

Based on the three researches, the consoli-dated study found that poverty is a majorfactor that puts children at risk of offend-ing—pushing children and young peopleoutside their homes into the streets amongtheir peer group. The children also tend tooffend in the process of going about theirlivelihood activities such as peddling andbegging, which are actually violations oflaws or ordinances in many localities. Theconsolidated study also reports that thereare more boys than girls among the CICL.The average age was pegged at 14.4, withthe proportion of older children in custodyincreasing with age. The majority of theCICL covered by the studies reached onlyGrade 6.

Family violence—and not the influence ofgangs as is commonly viewed—was identi-fied as a major factor for children becomingat risk of offending. Three types of com-mon offences were identified: offencesagainst property, usually involving

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cellphone snatching and shoplifting; sub-stance abuse; and violation of localordinances like curfew and vagrancy. Of-fences were found to be most commonlycommitted in shopping malls and in verycongested areas, and on the streets. A sig-nificant number of first-time offendersamong CICL who are arrested are taken tocourt and taken into custody. The arrest-ing officer was usually the police, followedby the barangay tanod (village police; or also

known as the Barangay Security and De-velopment Officer, or BSDO).

One of the major findings about the pro-file of CICL was that almost all of the CICLinvolved in the studies were first-time of-fenders. The majority in various custodialcentres (particularly in Cebu) were foundto be there for the first time and the major-ity of them were also first-time offenders.

The researches also revealed the variousways by which the rights of CICL are vio-lated and/or ignored in the process of justiceadministration. The following were high-lighted:

– Abuses from law enforcers–verbal,physical and psychological–werecommon occurrence and the rightsof children were often denied or vio-lated, such as their right to bail,privacy and information; there is pres-sure for children to plea for guilt andrepresentation by public lawyers tendto be superficial and last-minute.

– Conditions in both police cells andjails were very poor, with basic facili-ties and supplies essentially lacking.

– Penalties set by outdated laws tendto be quite stiff in proportion to the

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offences usually committed by chil-dren.

– Practices and procedures in most offamily courts remain hostile or preju-dicial to CICL.

– International minimum standardswere often not upheld.

– Non-custodial sentences were seldomused and suspended sentences areusually spent in detention in rehabili-tation centres.

On a positive note, the study cites somesuccessful experiences in diversion, particu-larly highlighting the work of the FreeRehabilitation, Economic, Education andLegal Assistance Volunteers Association,(FREELAVA), Inc., a non-governmentorganisation (NGO) that has been success-fully diverting CICL in twelve barangaysin Cebu City. It also mentions the case ofshopping mall owners signing a memoran-dum of agreement with the CommunityScouts Rehabilitation and Youth GuidanceCenter to turn over to the barangay chil-dren caught shoplifting within theirpremises. (The Community Scouts is a re-habilitation facility established by the CebuCity Metropolitan Dstrict Police as a venuefor processing cases involving CICL.)However, while these successful experiencesare worth noting, the practice of diversion

and mechanisms for this remain in mostpart non-functional or non-existent.

Finally, the report proposes several actionpoints that the different pillars of justice(law enforcement, the courts, prosecution,correction and the community) can taketo prevent the entry of CICL into the crimi-nal justice system, improve the situationand protect the rights of CICL who are al-ready in the justice system, and improvetheir own practices:

1. For all pillars of justice to adopt di-version in the community particularlyfor all first-time offenders, unless theiroffences are very serious, and in allstages of justice administration.

2. For local government units (LGUs)to pass ordinances that will mandatethe setting up of and provision of sup-port to existing structures at thecommunity level (e.g. Children’s Jus-tice Committee [CJC] of theBarangay Council for the Protectionof Children [BCPC], lupongtagapamayapa [peace-keeping com-mittee]) as mechanisms for justiceadministration for children at thecommunity level.

3. For LGUs to integrate CICL matters,especially those concerning diversion,

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into the city children’s welfare codes,and to ensure that local ordinancesdo not make offences for children thatare not offences for adults, such ascurfew, and that local ordinancesemphasise non-penal child-friendlysanctions or penalties.

4. For all pillars to conduct trainingamong barangay officials, barangaytanods, influential local people, andgovernment social workers and otherpersonnel, and the police in the han-dling of children, also incorporatingchild-sensitive practices, andpractices that promote diversion in allguidelines, manuals and handbooks.

5. For the Police to adopt structuralchanges within its organisation thatwill ensure more effective and effi-cient handling of cases of children,such as creating a special Directoratefor Women and Children, whichbrings together the Investigation andCommunity Relations units.

6. For the court and the police to en-sure that the rights of CICL arerecognised, such as right to bail, pri-vacy and expression.

7. For the courts to speed up trial andavoid keeping children in custody,such as by ensuring that pre-trial cus-

tody is limited, children (especiallyfirst-time offenders) are released onrecognisance (ROR) and non-custo-dial sentences are prioritised.

8. For the correctional to upgrade thestatus of jails, rehabilitation centresand other detention facilities to morehumane conditions, doing away withfacilities or practices that impede thedevelopment of and subject childrenin detention to abuse (e.g. use of ob-servation rooms to isolate childrenupon arrival, shared cells or com-pounds with adult detainees) andadopting a semi-open programme forCICL.

9. Drawing children’s participation inCICL issues through the following.

– Informing children in the criminaljustice system of their rights.

– Ensuring that the voices of childrenare sought and heard in the commu-nity, in court, in institutions and inco-ordination bodies; and that theyare able to claim their rights.

– Interested young people, especiallyformer CICL, after appropriate train-ing and selection, are encouraged toassist current CICL in their re-inte-gration into the community, such as

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through recreational activities, posi-tive peer example and counselling.

– Involving street children and streetgangs in responding to and prevent-ing offending.

10. For the five pillars at the national andlocal levels to co-ordinate throughjoint review and/or formulation ofstrategies for CICL, with the Coun-cil for the Welfare of Children(CWC) taking a stronger lead at thenational level; well-coordinated deci-sions and implementation of goodpractices; joint monitoring of theimplementation of diversion, withlocal government officials taking thelead; and joint advocacy on behalf ofchildren at all levels.

11. For the five pillars and civil society towork towards raising awareness onchild rights and preventing offend-ing by the pillars and civil societythrough training/discussions on thebest interest of CICL and preventionof offending and re-offending, andalso incorporating the relevant partsof the UN Convention on the Rights

of the Child (UN CRC), other inter-national instruments, the proposedjuvenile justice bill and national laws;

12. For the five pillars and civil society toundertake advocacy involving themedia and the private sector in sup-porting diversion and restorativejustice, and pushing governmentunits at all levels to participate inimproving the quality of children’slives by analysing and addressing theconcerns of children (gained fromtheir participation) through a localplan of action.

13. For NGOs working in the area of careand protection to also link up withNGOs active in children’s justice andwith the five pillars

The study also puts forward the followingrecommendation that will help further de-velop models of restorative justice in thePhilippines:

• further research that will examine themost appropriate models of restor-ative justice, specifically the practiceof indigenous communities that mayconstitute restorative justice

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• development of guidelines on theprinciples and good practice of diver-sion—drawing from the experiencesof FREELAVA—that can be dissemi-nated to the pillars of justice

• replication of successful experiencesof diversion in other areas

Several lessons were also derived from theseexperiences in diversion and mediation, asfollows:

• Local initiatives and/or NGO-barangay partnerships are essential inestablishing BCPCs.

• Local ordinances, the political will (ofmayors, barangay captains, and otherlocal officials), advocacy in fosteringBCPCs, and Municipal and City

Councils for the Protection of Chil-dren (CPCs) have a very importantrole in instituting diversion.

• Appointment of members of thelupon or the CJC must not be lim-ited to barangay officials who tend tobe replaced as members once they losein the local elections.

• A variety of models are needed toenable community diversion to takeplace effectively.

• By bringing in the parents, socialworker and lawyer at the investiga-tion stage, the police can pave the wayfor a better understanding betweenthe offender and his/her parents andfor the consideration of diversionmeasures and ROR.

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“The vision of justice isn’t about saving money oraverting prison construction–and it’s certainly not aboutbeing soft on crime. It’s about making things rightinstead of lamenting what’s wrong, cultivating strengthrather than perpetuating failure.”

– Minneapolis Star Tribune editorial, 11 July 1993

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THE EXPERIENCE IN THE PHILIPPINES : A SUMMARY •

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1 INTRODUCTION

The criminal justice system in the Philip-pines – characterised by very poor andinadequate facilities, inhumane conditions,inefficient handling and resolution of cases,among others – has often failed for adultoffenders and more so for children whohave come into conflict with the law(CICL). These children, who are likely tohave experienced abuse and neglect in theirown homes and in their immediate envi-ronments, are now forced into harsh anddehumanising situations within the adultcriminal justice system that expose themto further abuse and tarnish any hope forthem to be reintegrated into their familiesand communities and become responsibleand productive citizens.

This is most evident in the fact that manychildren caught for various offences arebeing held in detention. The appalling con-ditions in most detention centres havecompelled the Supreme Court of the Phil-ippines to issue a directive to judges on the“Special Treatment of Minor Detainees andJail Decongestion.” Issues regarding humanrights become apparent in the way the cur-rent process of justice administration forchildren is carried out. There is no excusefor violations of children’s rights becausethe protection of children is the direct re-

sponsibility of the State, which in the caseof the Philippines, has ratified the UnitedNations Convention on the Rights of theChild (UN CRC) in 1990 and has en-shrined the promotion and protection ofchildren’s rights in its 1987 Constitution.

Wherever possible, children’s difficultiesshould be resolved in their respective com-munities, with the resolution depending onthe seriousness of the offence or whether itis a further offence. This may range from awarning given by the police to mediationwith a written agreement. This is the es-sence of what is called diversion. Diversionis the generic term given to describe thevarious processes that may be used to en-sure that CICL are prevented from enteringthe formal justice system.

Restorative justice, as opposed to retribu-tive justice (or justice attained by punishingor sanctioning the offender, which is thespirit of the existing justice system in thePhilippines), is increasingly seen as an ef-fective way by which diversion can be done.Restorative justice involves bringing to-gether the offender and the victim inmediation in a community setting, usingrespected community members as media-tors. These elements were common to most

• BREAKING RULES: Children in Conflict with the Law and the Juvenile Justice Process

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traditional community justice systems andhad, as they do today, the goal of restoringbalance and harmony in the communityby the offender making some form of repa-ration and/or apology to the victim to repairthe harm done. The offender experiencesjustice in a very real way by facing his/hervictim, confronting the offence and hope-fully working out a solution that isacceptable and mutually beneficial to allparties concerned. Although most commonat the community level, restorative justicecan take place while a child is in pre-trialdetention or even after finding guilt andbeing sentenced by a court. Its use in con-temporary times, however, requires that theoffender admits to the offence, that certainjustice safeguards are met and that thechild’s rights are not infringed.

Restorative justice in its strictest sense asdescribed above may not always be appro-priate or possible, as when the case is veryminor and only requires a police warning,in cases like drug taking where there is novictim (except the offender), or where thevictim is unwilling to attend. However, di-version can still take place through thepolice and in a variety of conditions.Through a diversion process, and uphold-ing the principles of restorative justice inthe community, a child in conflict with thelaw stays under the care of his/her parentsor guardian in their community and is not

removed from their home with all its nega-tive consequences until such time the victimand the CICL arrive at an agreement.

Diversion at the level of law enforcement,on the other hand, encourages the policeto maximise their discretion to use diver-sion upon their initial contact withchildren. Moreover, in restorative justice,the role of the community is given due rec-ognition in resolving cases involvingchildren through its own mediation so thatreconciliation between offenders and vic-tims can take place.

The use of diversion had been found tohave a positive impact on the rates of of-fending among children in a number ofcountries. In the case of New Zealand, al-though the number of apprehensions hasrisen among those under 17 years of age,the proportion of children among the num-ber of apprehended offenders remainedrelatively stable at 21% to 23%. The posi-tive impact of the approach was alsoindicated by the findings of a study on theeffects of the conduct of family group con-ferences (FGCs) on offenders six years afterthe conduct of the FGCs. It revealed thatof the 108 offenders sampled, half felt thatthings had gone well for them because ofthe FGC while one-fourth felt that it hadgone very well; only 10% felt it had gonebadly. By the end of the six years, more than


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two-fifths were not reconvicted or wereconvicted only once, while only one-fourthwere classified as being persistently recon-victed. The study also found that thestrategies geared at facilitating their socialinclusion were those that most helped of-fenders to feel good about themselves andbecome reintegrated into the community(Maxwell and Morris 1999).

The positive experiences in restorative jus-tice in these countries, as well as thenumerous instances were children’s rightsare violated as they go through the justiceprocess in the Philippines, underscore theneed to adopt restorative justice principlesin the existing justice system in the Philip-pines or in the formulation of a juvenilejustice system in order to ensure that therights of CICL are fulfilled and protected.Any recommendations, however, need tobe based on in-depth research that wouldtake into account the data available and theviews of stakeholders, including CICL, tounearth the details in the profile of thesechildren and the process they go throughand setting these against the expected mini-mum international standards.

It is for this reason that in 2001, the Savethe Children-UK (SC-UK) PhilippinesProgramme embarked on researches thatlooked into the profile of CICL, and theirsituation and experiences in the justice ad-ministration process in the three mainpopulation centres in the country—MetroManila, Cebu and Davao, representingLuzon, Visayas and Mindanao–the three mainisland groupings (see figure on page 5).

These studies show how much the countryis in need of an organised system of diver-sion, including a community-basedrestorative justice model of mediation. Theconclusions and recommendations of thisconsolidated research study focus mainlyon the need to ensure that all first offend-ers, many second offenders and even somethird-time offenders (unless charged withmurder, rape or an act of extreme violence)should be diverted from the court processthrough a graduated range of community-based options–from warning to mediation(with its varied options for agreement),depending on the seriousness of the offence.This is essential if society and the membersof the five pillars of the justice system1 are

1 The “five pillars of the criminal justice system” refers to the agencies, institutions and groups involvedin the entire justice process. These are the law enforcers (the police), the courts, the prosecutors(including the public attorneys), correction (jails and rehabilitation centres) and the community (includingelected village officials, informal leaders, adults and parents). In the children’s justice perspective, eachpillar is viewed as a “duty-bearer” who is duty-bound to protect the human rights of children andpromote their “best interest” (defined in Footnote No. 2 in the next page).


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serious about the “best interest of thechild.”2 It should be emphasised that fac-ing an angry victim and their family inmediation is often more difficult for an of-fender than simply serving his/herdetention without facing the person he/shehad hurt.

The consolidation of the three researchstudies aims to make the findings and rec-ommendations of the three studies moreaccessible. These researches are some of themost comprehensive studies on CICL, bothgeographically in that no such study hasbeen done before in Cebu and Davao, andin terms of quantitative data and thebreadth of process investigated.

While some of the conclusions and recom-mendations in this consolidation were notspecifically mentioned in the three reports,these were based on data generated by thestudies. In particular, the data highlightcertain approaches that need to be adoptedif the “best interest of the child” in relationto the administration of justice is to be met

as set out in the UN CRC and other rel-evant international instruments. It is fromthis standpoint that the conclusions andrecommendations are made.

OBJECTIVES OF THE RESEARCH

The three studies had the same objectives,namely:

1. To generate and analyse quantitativeand qualitative data on the situationof children in conflict with the law;

2. To describe the processes in adminis-tering children’s justice at thecommunity, police and prosecutorlevel and to identify gaps and prob-lems;3

3. To establish the various stages CICLare in within the justice system;

4. To understand better the impact ofthe criminal justice system by seek-ing the views of children who havebeen directly affected by it;

2 According to the UN CRC, the “best interest of the child” must always be the primary consideration inall actions undertaken by any public or private institution/agency or individual concerning the child. Itdefines “best interest” as the “protection and care as is necessary for [a child’s] well-being, taking intoaccount the rights and duties of his or her parents, legal guardians, or other individuals legally responsiblefor him or her, and, to this end, shall take all appropriate legislative and administrative measures”(Article 3.2).

3 The Metro Manila study added “court and correction” to Objective No. 2, which was also what wasactually done by the other two research teams.


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The Research Sites


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5. To establish trends in offences com-mitted by CICL at least two yearsback (demographic profile, areas ofhigh incidence of crime, kinds of vio-lations, among others); and

6. To recommend ways by which SC-UK can most strategically assist insustainably diverting children fromthe criminal justice system.

Aside from the above objectives, on the onehand, the Cebu study also aimed to iden-tify the factors or circumstances thatinfluence children to commit offences. TheDavao study, on the other hand, also addedthe following as its objectives:

• To establish differentiated situationsof children in conflict with the law, atvarious stages in the justice system,arising from the children’s gender dif-ferences; and

• To facilitate stakeholder discourse to-wards collection of practical andstrategic recommendations on the is-sue of diversion.

METHODOLOGY

RESEARCH SITES

The three researches were all conducted inurban areas, with the exception of theDavao study, which also sampled a ruralcommunity within the province. The cit-ies and/or municipalities covered were asfollows:

• Metro Manila: Manila, Quezon City,Pasay City, Parañaque City andKalookan City;

• Cebu: Cebu City, Mandaue City,Talisay City, Lapu-lapu City and themunicipality of Consolacion; and

Davao: Davao City, Tagum City (inDavao del Norte Province), the mu-nicipality of Nabunturan (the capitaltown of Compostela Valley Province)and the municipality of BraulioDujali.4

4 The municipality of Braulio Dujali was included in the Davao study to present the experiences ofreintegration of children charged with theft by guards of a plantation company located in the area.


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SOURCES OF DATA

The three research studies used a generallysimilar approach in generating the neededdata. The approach included the following:

• Interviews with stakeholders in thefive pillars of the justice system. Atotal of 496 interviews (349 in MetroManila, 71 in Cebu and 76 in Davao)were carried out with representativesfrom the five pillars (see Table 1).

• Interviews with children. The threestudies interviewed 194 children (5from each of the 7 detention centresin Metro Manila, or a total of 35 chil-dren; 93 from 7 detention centres inCebu; and 66 children in Davao). Inaddition, 104 children attended a one-day visual arts workshop and twodrama forums in Davao.

• Children’s case studies. Twenty-one(21) case studies (9 in Metro Manila,9 in Cebu and 3 in Davao) were writ-ten. In addition, the Davao studygenerated numerous small cameosketches.

• Review of documents. CICL fileswere studied and analysed at differentstages.

Arrest stage. In Cebu, the police re-corded 5,951 arrests in the entireresearch area in 1999-2001. In

Davao City, 2,306 arrests in 2000-2001 were recorded.

At the Family Courts. The three stud-ies analysed 1,246 children’s cases inthe family courts. The Metro Manilastudy analysed the files of 706 chil-dren involved in 416 cases in the 22family courts in 2001-2002; theCebu study, 447 cases in 3 familycourts in 2001; and in Davao, 79cases in the Tagum Family Court in1999-2001 and 14 cases inNabunturan in 2000-2002.

In detention centres. The Cebu re-search looked at 1,821 CICLdetained in 6 detention centres in1999-2001; 93 of these werestudied intensively. The Davao re-search recorded 67 CICL at theDavao City Jail and 31 at the TagumCity Jail. Some of the informationwere taken directly from the relevantledgers, while the rest were given bythe authorities.

There were also records obtained from thecommunity, such as those on CICL in theurban barangays (villages) of Ermita andSan Roque in 2001 and a study of 28 chil-dren at the Community ScoutsRehabilitation Center in Cebu in May 2002(only 6 of the 28 were CICL).


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It is important to point out that certain cit-ies within each study dominated the casesof CICL that were studied. This is expected,as these cities are more populated. Thus, inthe Metro Manila study, 80% of the CICLcases examined came from Manila andQuezon City. In the Cebu study, 77% ofthe police intake cases came from CebuCity. Davao City also accounted for thegreat majority of cases in the Davao study.

Each study interviewed children, met withstakeholders and obtained informationfrom the centres where CICL are deprivedof their liberty – whether officially calledjails, detention centres or rehabilitationcentres (see Table 2). The jails are run bythe Bureau of Jail Management and Penol-

ogy (BJMP) of the Department of Interiorand Local Government (DILG), while theRegional Rehabilitation Center for theYouth (RRCY) and the Regional Rehabili-tation Center for Drug Dependents(RCDD) are managed by the Departmentof Social Welfare and Development(DSWD).

DATA COLLECTION METHODS USED

All the studies used documentary research(including comparisons with similar pre-vious related research), review of files anddocuments, individual interviews, focusgroup discussions (FGDs) and general vali-dation sessions. The Davao study also usedcreative approaches to draw out the per-

Table 1. Sources of data by research site and data collection method

Metro Manila Cebu Davao Total

Interviews with the five pillars 349 71 76 496

Interviews with children 35 93 66 194

Drama forum with children 0 0 104 104

Case studies 9 9 3 21

Records review• Arrests No data 5,951 2,306 8,257• Family Courts (no. of cases) 706 447 93 1,246• Detention centres No data 1,821 67 1,888


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ceptions of children, such as the conductof a visual art shop with 71 children in theDavao City Jail, a poster discussion in theTagum City Jail and two drama forums,which brought together CICL and stake-holders.

SIGNIFICANCE OF THE STUDY

In the case of Cebu and Davao, this researchis the first systematic and in-depth studyof CICL in the areas involved. As Prof.Etemadi pointed out in the Cebu research:

• It contributes to the emerging litera-ture on child offenders by taking acloser look into the following aspects:

- The profile and experience of CICLthrough the eyes of children;

- The institutions and processes of theFive Pillars as defined by law on theone hand, and the juvenile justiceprocess in actual practice by stages onthe other;

- A multi-stakeholder analysis takinginto consideration the roles and per-spectives of the duty bearers in

Table 2. List of centres involved in the research studies per research site

• Mandaue City Jail

• Lapu-lapu City Jail

• Talisay City Jail

• Consolacion Municipal Jail

• The Bagong BuhayRehabilitation Center ofthe Cebu City Jail

• Cebu Provincial Deten-tion and RehabilitationCenter (under the Officeof the Governor)

• Regional RehabilitationCenter for Youth

• Juvenile Welfare Unit ofthe Davao City Jail

• Tagum City Jail

• Regional RehabilitationCenter for Youth

• Regional RehabilitationCenter for Drug Depen-dents

• Kalookan City Jail

• Paranaque City Jail

• National Training School

for Boys

• Pasay City Youth Home

• Manila Youth ReceptionCenter

• Marillac Hills

• Molave Youth ReceptionCenter

Manila Cebu Davao


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different institutions and at variouslevels (CYROs [Children and YouthRelations Officers], barangay officials,tanods, local social workers, DSWDsocial workers, RTC [regional trialcourt] social workers, probation of-ficers, prosecutors, jail wardens andadministrators, and judges) as well asthe observations of community mem-bers to balance the children’s views.Inputs from NGO developmentworkers also enriched the analysis.

- Diversion at the barangay and policelevels;

- Rehabilitation and reintegration ofCICL; and

- Impact of the CICL experience asperceived by the minors themselves.

• The baseline data generated by thisresearch could be used as a bench-mark by the concerned institutions.

• Implications drawn from the studyserve as basis for SC-UK programmesthrust and intervention.

• Findings of the study are useful foradvocacy purposes by the NGOs andminor offenders as well as the dutybearers.”

ORGANISATION AND HIGHLIGHTS

All studies had sections on the following:

• Introduction and methodology;

• Related studies in the Philippines;

• International and national law con-cerning CICL;

• Profile of CICL;

• Attitudes of the duty-bearers withinthe five pillars of the justice system;

• Case studies; and

• Quantitative tables.

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There are, however, certain differences inthe content of the studies. The Metro Ma-nila study has a chapter on diversion. Cebuand Davao have a chapter and section, re-spectively, on the experience of CICL inthe justice system based on interviews withthe children; that of the Metro Manila studyis contained within its case studies. Boththe Cebu and Davao studies have a usefulflowchart diagramming how children maygo through the juvenile justice process. Allstudies have a section/chapter on the over-all analysis or conclusion, including gapsand recommendations.

Some of the highlights of the different stud-ies also jointly add a greater richness to thecombined study. The unique contributionsof each study are presented below.

METRO MANILA

• A list of penal and non-penal city or-dinances, the actions required orprohibited and the penalties, whererelevant

• A chapter tabulating the views ofmembers of the five pillars of justiceconcerning CICL issues, plus the com-position of these groups by sex

CEBU

• A chapter on the views of CICL abouttheir experience of the juvenile justiceprocess based on interviews with them

• A 122-page tabulation of the resultsof interviews and the research

• A comparison between

- The experiences of CICL and theImplementing Rules and Regula-tions (IRR) of Presidential Decree(PD) 603 or The Child And YouthWelfare Code of 1974

- The IRR of PD 603 and the Su-preme Court Rule on Juveniles inConflict with the Law

- The experience of CICL in JuvenileJustice and the UN CRC

DAVAO

• The issue of human rights violationsin Davao in the form of summary ex-ecutions of suspected offenders.Between 1999 and September 2003,18 of 177 killed (or about 1 in every10 victims) were children aged 14 to17. This was despite Davao City be-ing named the “most child-friendlycity in the Philippines” by the Na-tional Council for the Welfare ofChildren (CWC) and having a quiteenlightened Davao City Children’sCode


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• An emphasis on how the economicsituation is affecting children’s livesboth as a result of globalisation andlocally through big businesses

RELATED STUDIES

Many national and local studies or reportshave already been completed on the sub-ject of children in conflict with the law. Theresearchers for this report have very muchacknowledged their deep debt to the workalready done and on which this report hasbuilt and we hope taken forward.

A major contribution was the study,Situational Analysis on Children In Conflictwith the Law and the Juvenile Justice Sys-tem, conducted by the AKAP-AHRC(1998), which contextualised the situationof CICL within the criminal justice system.It reviewed the data and the findings of sixstudies (1993-1996) on CICL and theirtreatment during arrest, detention, adjudi-cation and post adjudication. The studiesare as follows:

1. The National Police Commission(NAPOLCOM) Technical Commit-tee on Crime Prevention and CriminalJustice (1996), Survey of Non-Institu-tional Offenders at the National CapitalRegion;

2. The Philippine Action for YouthfulOffenders (PAYO, 1996), Youth inDetention: Issues and Challenge; 232CICL were interviewed in 18 key cit-ies and it concluded that children aretrapped in institutions that are verypunitive in character;

3. The National Council for Social De-velopment (NCSD) Foundation ofthe Philippines (1994), Children andYouth in Conflict with the Law: A Situ-ational Analysis in Metro Manila, CebuCity, Olongapo City and Baguio City;this looked particularly at the legalprotection of street children and CICL

4. The BCYW (Bureau of Children,Youth and Women)-DSWD andNAPOLCOM Crime and Coordina-tion Service (1993), Survey on YouthOffenders at Camp Sampaguita andCorrectional Institute for Women. Thesurvey concluded that poverty is oneof the causes of juvenile delinquency.With respect to the criminal justicesystem, it concluded that:

• Law enforcers had no training in deal-ing with CICL during apprehension;

• The facilities in custody do not com-ply with international standards; and

• There is no rehabilitation programmefor children while in confinement.


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The 1998 AKAP-AHRC study confirmedthat most CICL are usually male, betweenthe ages of 14 and 17, have low educationalattainment, are from low-income familiesand are middle or in-between children withabout four to six siblings. It had the fol-lowing recommendations:

1. Law enforcement officers, prosecutors,judges, court social welfare officers,public attorneys and legal aid groupsshould be given orientation seminarson international human rights instru-ments and child-related laws withemphasis on juvenile justice.

2. Government agencies and institutionsengaged in defending youthful offend-ers should coordinate their efforts inproviding protection to these childrenby establishing a common monitor-ing system covering the various stagesof the juvenile justice process.

3. Specialised juvenile and domestic re-lations courts should be created.

4. Support programmes for street chil-dren and other similarly vulnerablechildren should be increased as pre-ventive measures.

5. More facilities exclusively for childrenwho are detained and sentencedshould be constructed to prevent min-gling with adult offenders.

6. Community awareness of and involve-ment in non-institutionalrehabilitation programmes and ser-vices should be enhanced.

7. Non-governmental organisations en-gaged in multi-disciplinary outreachprogrammes with children in conflictwith the law should form a networkto maximise extension of assistance tothese children.

8. A comprehensive review of existinglaws and procedures on juvenile jus-tice in light of the CRC and otherinternational standard-setting instru-ments affecting children in conflictwith the law (CICL) should be un-dertaken for purposes of law reform.

Various studies have established that manyarrested children are either children on thestreets or of the streets when they were ap-prehended. A study by Dr. ExaltacionLamberte (1996), Today’s Metro ManilaStreet Children, aimed to provide bench-mark information about the life situationsof street children in Metro Manila, specifi-cally, Manila, Pasay City, Quezon City andMandaluyong City. The study conductedface-to-face structured interviews with 700sample street children. According to thestudy, the main deviant behaviours streetchildren engaged in are gambling, use of


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prohibited drugs, sexual behaviours andcommission of illegal acts. The data alsoshowed that 52% had been previously ar-rested by the police, 70% in connectionwith bagansiya (vagrancy5) or police raids.

The study also revealed that upon arrest,30% of the children were punished by takal(being beaten with a 2” x 2” piece of wood);26% were asked to clean the precinct; 5%were asked to give a massage to the police;and 2% were asked to give money to thepolice.

A participatory action research conductedby the Tambayan Center for the Care ofAbused Children, Inc. (2000) with streetadolescents (113 children – 79 girls and 34boys/young men) underscored the vulner-ability of street adolescents to police arrest.The majority (82%) of the adolescentrespondents claimed to stay in the streetsday and night. In the evenings, the adoles-cents would go to community discos andother outings, or engage in drug use, pettytheft and prostitution. The main risk asso-ciated with staying in the streets was thatof being arrested by abusive law enforcers,which was the response of 44% of the re-

spondents. Among the violations they ac-knowledged were sniffing rugby, vagrancy,petty theft and going against the 10 p.m.curfew imposed by the city.

Second to peers (48%), law enforcers (38%)were usually tagged as the perpetrators ofabuse in the streets, owing to their roughtreatment of and violence especially towardsmale juveniles. In terms of meeting dailyneeds, a third of the respondents mentionedpetty crimes (such as picking pockets), pros-titution and delihensiya (petty extortion) asa source. The high prevalence of substanceabuse was also noted (69%) and that it isoften used as a coping mechanism by chil-dren against hunger and boredom(Tambayan 2000).

Ortiz (2000) conducted a study on the dis-cernment of out-of school children inMetro Manila and found that the 300respondents’ level of discernment is verylow. He used Kohlberg’s six stages of moraldevelopment as a framework.

According to the study, “Adherence to theexisting laws, regulations and policies arenot the values or norms followed by the

5 Vagrancy is a minor offence committed in violation of a law that prohibits moving about or wanderingidly without lawful or visible means of support, without a permanent home, and relying on begging.


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respondents. They do not clearly knowwhat is right and what is wrong.” The dis-cernment study found that even at the ageof 18, out-of-school children determinedthe rightness or wrongness of their actionson the satisfaction of their needs and thatof others. This has several implications on

children’s accountability to crimes commit-ted.

Other studies and the outcomes of work-shops very much resonate the abovefindings and those of the three studies be-ing summarised in this consolidated report.

“Rights?Maybe we do not have that because we are still young…”

– Child detained at the Tagum City Jail in Davao del Norte Province

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INTERNATIONAL LAWS

Various international instruments set downstandards and procedures by which CICLshould be treated from the time of arrestthrough all the steps in the process. Theseinclude the International Covenant on Civiland Political Rights (1966); the UN CRC(1989), which is the first international in-strument that adopted a comprehensivespecific child rights approach; and otherinternational instruments concerning juve-nile justice. Although internationalminimum standards for most aspects ofchildren’s justice exist as a guide for allStates, the specific legal national regulationis left to the ratifying States.

In addition to the UN CRC, the UN hasset out various rules and guidelines to as-sist states in drawing up national laws forchildren’s justice. These include the UNStandard Minimum Rules for the Admin-istration of Juvenile Justice (Beijing Rules1985); the UN Guidelines for the Preven-tion of Juvenile Delinquency (RiyadhGuidelines 1990); the UN Standard Mini-mum Rules for Non-Custodial Sentences(Tokyo Rules 1990); the UN Rules for the

Protection of Juveniles Deprived of theirLiberty (JDL Rules 1990) and the ViennaGuidelines (1997), which describes how theUN CRC, Rules and Guidelines can be puttogether in practice.

PHILIPPINE LEGISLATION6

The Philippine Constitution of 1987 ad-dresses the protection of children. Inaddition, the Philippine Congress and theSupreme Court have provided a specific setof laws and rules for dealing with CICL.These rules include the following:

• Republic Act (RA) 8369 (1997), or theFamily Courts Act. RA 8369 establishedfamily courts all over the country andtheir jurisdiction.

• Rule on Juveniles in Conflict with theLaw. Issued by the Supreme Court inFebruary 2002, this rule now implementsPresidential Decree (PD) 603 and otherlaws. It supersedes the Rules and Regu-lation on the Apprehension,Investigation, Prosecution and Rehabili-tation of Youth Offenders (1995) and theRevised Rules on Criminal Procedure forCICL (1932; though still applicable for

6 For other national legislation relevant to the barangay, please see the subsection on local ordinances.

2 SUMMARY OF RELEVANT INTERNATIONALINSTRUMENTS AND PHILIPPINE LEGISLATION

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adult offenders) but both these laws aresupplementary on those areas not cov-ered by the Rule on Juveniles in Conflictwith the Law (such as the procedure forpreliminary investigation and bail).

• Supreme Court Administrative Circu-lar No. 14-93. This instructs that alldisputes should be subject to barangayconciliation before filing a case in courtunless the maximum penalty is over oneyear or the maximum fine is Php 5,000(around US$89 in July 20047).

• Rule on the Commitment of Children.This ruling took effect in April 2002 (Ad-ministrative Memorandum [AM] No.02-1-19-SC). It is the procedure appliedin court when a child is legally entrustedto the care of the Department of SocialWelfare and Development (DSWD) orany duly licensed child-placement orchild-care agency or individual (parent/guardian or any interested party). ThisRule applies to: (1) a dependent child,without parent/ guardian, or whose par-ents/guardian for good reason wish to berelieved of care and custody and so is de-pendent upon public support; (2) an

abandoned child; and (3) a physically oremotionally neglected child. If the CICLis found to be one of these children, theDSWD or any licensed child-placementor child-care agency may file a petitionfor the commitment of the child.

• R.A. 7610 (1991), or Special Protec-tion of Children against Child Abuse,Exploitation and Discrimination

• Rule on Examination of a Child Wit-ness, issued by the Supreme Court andeffective beginning December 2000.

BARANGAY LEGISLATION

Barangay8 legislation is very important inundertaking diversion from the formal jus-tice system. It is based on two majorlegislations, PD 603 and the KatarungangPambarangay (Barangay Justice System).

PD 603 (1974) mandates the establish-ment of the barangay council for theprotection of children (BCPC), which is amulti-sectoral body tasked with formulat-ing policies and programs to promote andprotect children’s rights at the barangaylevel.

7 US$ 1 = Php 55.93 in July 2004.

8 The barangay is the basic political unit of the country and is considered the “primary planning andimplementing unit of government policies, plans, programs, projects and activities in the community”(Local Government Code, Sec. 384).


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The Katarungang Pambarangay was setin place with the promulgation of PD 1508in 1978. It was strengthened by provisionsin the Local Government Code of 1991 andemphasised by the Supreme Court in itsAdministrative Circular No. 14-93 issuedin July 1993. Under the KatarungangPambarangay, conciliation can be per-formed by a Lupong Tagapamayapa(peace-and-order committee) for all dis-putes where the parties involved are fromthe same barangay. The law prescribes amaximum penalty of one-year imprison-ment or a fine of Php 5,000 (US$ 89)and recourse to the barangay, with certainexceptions, as a precondition before filinga case in court or any government office.

LOCAL ORDINANCES

The Local Government Code gives the city,the municipality and the barangay thepower to enact laws at their respective lev-els of governance. Local authorities haveproduced both penal and non-penal ordi-nances. In the three study areas, there arelocal penal ordinances that apply only tochildren such as violation of curfew, sub-stance abuse, anti-peddling, smoking anduse of tobacco, loitering and playing videogames. In Cebu City, the major ordinanceviolated is City Ordinance (CO) 1361,which rules against littering. With the en-forcement of this ordinance, children are

arrested while seeking food, plastic articlesand bottles from the rubbish, a graphic ex-ample of “survival offending.” The ultimatepunishment of custody is sometimes im-posed, ranging from one day to one year.Although graduated fines are often the mostlikely sentences, failure to pay could stilllead ultimately to custody. The Metro Ma-nila report prsents examples of these localordinances in the cities studied.

In Davao, the Davao City Children’s Wel-fare Code became an ordinance in 1994with the UN CRC as its framework. De-spite this, it did not address issuesconcerning CICL. It has a curfew provi-sion for children less than 15 but stipulatesthat law enforcers should escort these chil-dren home. It also emphasises parents’responsibility to keep their children at homewhich, if ignored by their children, couldresult in the parents being punished bydoing community service. Unfortunately,the law enforcers still follow the city lawson curfew circa 1957, which regarded cur-few breakers as law offenders. As a result,children are locked up in congested policestations overnight. This is strictly againstthe new Code and is an example of howthese local ordinances are interpreted in away that suits the convenience of the en-forcers and ignores the rights of the child.

“I have always been a hard-headed child. Do youknow why children are hard-headed? Becausesome parents lack love and caring. How comechildren do not obey their parents? Because theysee what their parents do. That must be whychildren go to jail.”

– Joy, 16

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POVERTY BACKGROUND

Poverty is a major factor in relation to CICLand is at the root of survival offending.Survival offending involves committing aviolation or offence while in the process ofcarrying out one’s livelihood or in the actof survival. Violation of laws against ped-dling or selling goods on the street, oragainst littering, as well as petty thievingare examples of survival offending. So arebeing and working on the streets, both of-ten categorised as “loitering” or being a“vagrant.” Unlike the better-off, povertymeans not being able to “settle” with thepolice or pay the money required for bail.

The case studies show that poverty is oneof the factors invariably linked to children’svulnerability and one of the tipping fac-tors in producing domestic violence. Allthese put together contribute significantlyto putting children “at risk” and to push-ing them to live outside their homes andamong their barkada (gang or peer group)or to running away from home altogether.These situations seem to dramatically in-crease the chance of offending.

Research quoted in the three studies statesthat a third of the Philippines’ 84.5 mil-lion population in 2002 live below the

government’s set poverty line of Php 38 perperson per day (68 US cents). Other inde-pendent studies (IBON Foundation) usinggovernment data estimate that 77% of thepeople are not earning enough to maintaina decent standard of living and that it iseven worse in rural areas where almost all(92%) rural families are poor. Figures fromthe National Statistics Office’s Family In-come and Expenditure Survey (2000)presents a more distinct picture of povertyand the dismal state of Filipino children:27% of homes have no electricity; 20%have no access to safe drinking water; about33% of family heads are unemployed orunder-employed (as of January 2002, 10%of the total workforce, or 3.4 million, wereunemployed); 15% of families have work-ing children; and 16% and 42% of thosewith children aged 6-12 and 13-16, respec-tively, are not able to send their children toschool.

GENERAL CHARACTERISTICS OF

CHILDREN IN CONFLICT WITH THE

LAW

Sex. Findings from all the studies show thatmore boys than girls come into conflict withthe law. In the Cebu study, police recordsin 1999-2001 revealed that the majority of

3 PROFILE OF CHILDREN IN CONFLICTWITH THE LAW

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children arrested were boys (79%). InDavao City, of the 497 arrested by the po-lice (January-June 2002), the majority(83%) were also boys. These findings werecorroborated by the Metro Manila study,which found that the majority (89%) ofthe 706 CICL handled by the FamilyCourts in 2001-2002 were boys. Boys alsodominated the prisons, with 95% in Cebuin 1999-2001 and 91% in Davao as ofNovember 2002.

Age. The average age of children arrestedin Cebu City over the study period was 14.4years. Very few children below the age of14 years were held in custody and the pro-portion of older children in custodyincreases with age. In Davao, children asyoung as 5 or 6 could be rounded up butwere then handed over to the DSWD.

Education. Majority of the children in thestudies have reached Grade 6. In the caseof Metro Manila and Davao, 38% and36%, respectively, have been in high school.In Cebu, 8 out of 10 were out of school atthe time of the offence while in MetroManila, majority have dropped out by theage of 14. Few children had no formal edu-cation at all (5% and 1% in Davao andMetro Manila, respectively). According tothe Cebu study, children stopped school-ing because of the lack of financial supportor because of peer influence.

Families. CICL in Metro Manila usuallycome from families with an average of sevenmembers. About half (47%) of CICL cov-ered by the study lived with parents, 30%with the mother alone and only 5% withnon-relatives. The Metro Manila study alsorevealed that 20% of the CICL sampledhad fathers who were unemployed and theaverage monthly income per family wasPhp 5,530 (US$ 98). In Cebu, majority ofthe CICL covered by the study had par-ents who were alive and were livingtogether. However, 60% of the childrenwere not living with their parents when ar-rested.

Family Violence. Of the CICL presentedin the case studies, nine discussed mostlyabout their family background, six of whomclearly came from violent, neglectful oruncaring homes. This appeared to havebeen a major factor to these children be-coming at risk and to three of them runningaway from home. Of the six, four high-lighted the significant role of their parentseither by blaming them for what happened(2 cases) or by realising the need to changebecause of their parents being more loving(1 case) or more concerned, that is, guid-ing and monitoring them (1 case). Morethan half (54%) of the 28 CICL held atthe Community Scouts Center in Cebusaid that they have been abused by familymembers. The extent of domestic abuse can


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be gleaned from figures presented in theCebu study, which showed that of the 82CICL in custody who were asked aboutdomestic violence, only 30% (21 boys and3 girls) admitted to having been abused (seeTable 3).

Social Environment. In Davao, the adultFGD participants particularly linked of-fending to poverty, lack of parenting skills,early marriage and the breakdown of thefamily system, while both children andadults saw pornography and peer influence,

* Multiple response: N = 24Source: Etemadi, Ye and Bermudez (2002).

Table 3. History of domestic abuse, Cebu, 2002

Response regarding experience Male Female TOTALof domestic abuse No. % No. % No. %

Whether minor has been abused

Abused 21 28.4 3 37.5 24 29.3

Not abused 53 71.6 5 62.5 58 70.7

Total 74 100.0 8 100.0 82 100.0

Type of abuses*

“Kulata” (mauling/ beating) 16 61.5 1 33.3 17 58.6

“Bunalan”(whipping) 7 26.9 2 66.7 9 31.0

Beaten by cable wire 1 3.8 0 0.0 1 3.4

Sexual abuse 1 3.8 0 0.0 1 3.4

Hang upside down 1 3.8 0 0.0 1 3.4

Total 26 100.0 3 100.0 29 100.0

Person inflicting abuse

Father 14 66.7 3 100.0 17 70.8

Uncle 2 9.5 0 0.0 2 8.3

Brother/cousins/grandpa 3 14.3 0 0.0 3 12.5

Not specified 2 9.5 0 0.0 2 8.3

Total 21 100.0 3 100.0 24 100.0


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and the lack of education and recreationalfacilities as contributory factors. In theMetro Manila study, 121 out of the 706CICL, or 17%, were working before theywere arrested (of which, 58% were streetvendors). Only a few said they were mem-bers of gangs (2% to 4%). In Cebu, 80%said they were members of a barkada. It isestimated that about 23% are members ofgangs. Of the nine boys in the Cebu casestudies, all but one was highly influencedby the barkada or close friends to performdeviant behaviour.

TRENDS IN OFFENDING

Three types of offences wereobserved to be quite commonin the three research areas – of-fences against property,drug-related offences andsexual offences. Several trendswere also noted in these typesof offences.

Offences against property. Of-fences against property are themost common offences for allthe study areas. In Metro Ma-nila, cellular or mobile phoneswere the most common tar-gets. In Cebu, offences againstproperty usually take the formof shoplifting.

Drug-related offences. Offences linked todrug abuse have increased over the recentyears. In a 1981 study, the University ofthe Philippines Law Center reported 323cases in Metro Manila, while a nationalstudy in 1996 did not record drug-relatedoffences. At the time of the three studies,however, this type of offence constituted13% of the reported offences committedby children in Metro Manila and had be-come the second most common offence inCebu (20%) and Davao (26%). Drug-re-lated offences were also the second mostcommon offence for girls in both MetroManila and Cebu.

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Compared with first offences, there is anincrease in drug-related offending in sec-ond-time offences. In Cebu for instance,drug-related offending rose from 14% to37% of all offences (Drug offences are nowthe most common cause of offendingamong CICL in Thailand and Lao People’sDemocratic Republic.). This has significantimplications for the Philippines with re-spect to providing accurate information toyoung people on the effects of drugs butalso in terms of addressing the issue in anon-alarmist way, that is, seeing it as pri-

marily an issue of children’s self-esteem andself-worth and how children can be assistedto achieve this. Individuals experiencing dif-ficult or unbearable situations take drugsto withstand hunger and try to forget mis-fortunes and frustrations.

Sex offences among children. Sex offencesbetween children were likewise up in MetroManila (AKAP communication). In Cebu,if a sex offender was a child, the victim wasusually also a child.

(no pic yet)

“I know that it’s bad but wehad to do it so we can eat.”

– child detained in the Davao City Jail

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The succeeding sections discuss the statusand experiences of CICL as they go througheach stage in the justice system, and howstakeholders and duty-bearers handledthem as they undergo the process (see flow-chart of the juvenile justice process in theannex on Pages 86 and 87).

OFFENDING

Most common types of offences. In all threestudy areas, offences against property werethe most common. According to policerecords, 5,976 children were arrested inCebu, majority of which (71%) were al-leged to have committed offences againstproperty. The proportion of this type ofoffences was much smaller in the other tworesearch areas – 37% of 2,306 children ar-rested in Davao and 38% of 706 court casesstudied in Metro Manila. Within Cebu,however, figures for offences against prop-erty also varied among the different courts.These figures accounted for 80% of CICLcases in Cebu City but only 31% of thosein Mandaue City.

In both Cebu and Davao, the second mostcommon offence was substance abuse,which constituted 20% of offences byCICL in Cebu and 26% of offences in

Davao. In Metro Manila, however, sub-stance abuse accounted for only 13% ofCICL offences, and came fourth after of-fences against the person (15%) andviolations of local ordinances (14%). Again,marked variations among the differentcourts in Cebu were observed – in MandaueCity, almost half of all the cases (47%) in-volved substance abuse while in Cebu City,it was only 15%.

Offences against local ordinances (especiallythose on curfew and vagrancy) were thethird most common offence in both theMetro Manila (14%) and Davao (23%)studies. In contrast, offences against ordi-nances and vagrancy were very few (lessthan 5% of recorded offences) in Cebu.

Most common types of offences among girls.Both the Cebu and the Metro Manila stud-ies had specific data concerning offencescharged against girls. The most commonoffences were those against property, whichconstituted majority (70%) of all offencescharged against girls in the Cebu study andalmost half (42%) of recorded offencesamong girls in the Metro Manila study. Thesecond most common offence among girlswas substance abuse, which accounted for24% of offences attributed to girls in the

4 CHILDREN IN CONFLICT WITH THE LAW ATDIFFERENT STAGES WITHIN THE JUSTICE SYSTEM

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Cebu study and 34% in the Metro Manilastudy. In Metro Manila, 15% of the of-fences committed by girls were against localordinances.

Most common places of offending. Themajority of all offences (77%) in the Cebustudy took place in Cebu City with its largecommercial areas. In the city itself, over50% of these offences took place aroundColon St., which is at the heart of down-town Cebu City, and near two giantshopping malls – SM Cebu and the AyalaCenter.

The Metro Manila study also identifiedhighly populous and congested areas whereoffences most commonly take place –Tondo and Sta. Cruz in the City of Ma-nila, and Cubao and Novaliches in QuezonCity. Each of these areas in Manila andQuezon City surpassed or nearly equalledin number the total of CICL for the threeother cities covered by the study. Most ofthe offences (59%) in the Metro Manilastudy took place on the street. It is clearthat if action is planned, these specific cen-tres would have to be prioritised forintervention.

Offending with accomplices. According tothe Cebu study, 80% of the CICL studiedoffended with an accomplice, usually an-other child. This was less an occurrence inMetro Manila, where 41% of the CICL had

an accomplice and for almost all (92%) ofthem, the accomplices were children. InDavao, if the offence was substance abuse,it was usually a group offence.

Record of offending. One of the most im-portant findings from the researches wasthe significant number of first-time offend-ers among CICL being arrested, taken tocourt and taken into custody.

It can be observed that in all three areas,almost all of the CICL cases covered by thestudies were charged or arrested for the firsttime — 94% of 5,233 children arrested bythe police in 1999-2001 in the Cebu study;91% of 452 CICL arrested based on thecity police records for January-June 2002in the Davao study; and 99% of 706children’s cases examined at the 22 FamilyCourts in 2001-2002 in the Metro Manilastudy.

This trend was likewise observed in the fivecustodial centres in Cebu where 86%(1,224) of the 1,421 children in custodywhere held in detention for the first time.While the study could not arrive at theexact number of first offenders because ofthe difficulty of cross-referencing police andBJMP databases, Prof. Etemadi thinks it islikely that the majority were first offend-ers.

That these first offenders had not been di-verted from arrest, court and custody is


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both a major failing of the system and achallenge to all duty-bearers involved inchildren’s justice and working for the bestinterests of children. There were no avail-able figures concerning custody of firstoffenders in Metro Manila and Davao butit is likely that the numbers would be closeto the Cebu figures given the high numberof first offenders going to court.

While it can be noted that many childrenin Cebu and Davao were being diverted bythe police (see the subsection, “Police ac-tion in relation to case filing and diversion”below), there is still much to be done inthe area of diversion.

UPON ARREST

Arresting officer. Findings in all three stud-ies showed that the arresting officer wasusually the police, followed by the barangaytanod. The proportion was especially highin the Metro Manila study (64% of arrests)and in the Davao study (25 out of 42 cases,more than half of the cases), than in theCebu study (31%). Barangay tanods ac-counted for only 18% of arrests in the Cebustudy and 19% in Metro Manila, but ap-peared to have made more arrests asreflected in the Davao study (33%).

In Davao, there were ancillary forces at-tached to the police such as the Davao CityPolice Auxiliary Group, which was a groupof volunteers; the Station Police Auxiliary

Groups (SPAGs) at the barangay level; theCivilian Volunteer Organisations (CVO);and the Civil Security Units (CSU). In thecase of Cebu, arrests were also made bycomplainants and by security guards inshopping malls (12% and 10%, respec-tively).

The usual practice was for the tanods andprobably the SPAGs to take the arrestedchildren to the police station/precinctrather than using the barangay system toresolve the problem. There were only a fewexamples in Cebu City of child offendersbeing brought to the attention of thebarangay captain (elected head of thebarangay). Barangay (Brgy.) Ermita, whichhad the most number of child offendersreported among all the barangays in CebuCity, only had an average of six child of-fenders per month.

Police action in relation to case filing anddiversion. In the Cebu study, the policetook several actions concerning cases ofCICL appearing in their records after ar-rest in the period 1999-2001. Of the 4,624CICL, more than half (3,120, or 68%) hadcases that were closed, settled and divertedby the police; 15% (696) had their casesfiled; 6% (270) were detained awaiting fil-ing; 4% (193) were released as theregulatory period had elapsed before filing;and 3% (155) were referred to the DSWD,the barangay or an NGO. As mentioned


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in the Davao study, about half of all chil-dren coming to the attention of the policewere referred to the DSWD and the CitySocial Services (46% in 2000 and 55% in2001).

Police responsibility at the time of arrest.Upon arrest, a child should be informed ofthe reason for his/her arrest and his/herrights, including the right to contact one’sparents or a social worker and a lawyer. InCebu, only 33 out of 85 (39%) of childreninvolved in the study were informed of theirrights. While the majority (18 out of 23)of CICL respondents at the BBRC wereasked about the name and address of theirparents, only two said that the police con-tacted their parents by phone. Nonetheless,the children had discovered other ways ofinforming their parents so that the major-ity (about 73%) of families knew wheretheir children were. In the case of BBRC,half (10 out of 20) of the children in cus-tody were visited. Apart from using thephone, the police made no other effort tocontact the parents.

All police stations in cities should have aWomen’s and Children’s Desk (WCD) of-ficer, previously called the Child and YouthRelations Section (CYRS) or, if outside a

city, a Child and Youth Relations Officer(CYRO). The WCD/CYRS should oper-ate as a separate functional unit within thepolice station and treat children in a pro-tective way. All CICL must, if possible, beseen by the WCD. In reality, however,WCD officers are present only from 8 a.m.until 5p.m., except in Davao where theyare on duty 24 hours a day. As most arrestsare made at night, this means they are dealtwith by officers who do not specialise orare not trained in handling CICL. More-over, the names of children arrested areusually included in the general police blot-ter9 – rather than in the children’s blotter –which are open to media inspection.

BEFORE ARRAIGNMENT OR TRIAL

Time held in custody before filing a case.By law, the filing of a case should be donewithin 12 to 36 hours depending on itsseriousness. Within this time, the parentsshould have been informed, a medical andmental health examination has been com-pleted and any statement is already takenfrom the child. The statement should bemade in the presence of the child’s parents/guardians, social worker or lawyer. TheCebu study showed that children had beenspending more time than required in po-

9 The police blotter is a daily written record or logbook of events and important facts about the event(including complaints and arrests) in a police station.


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lice stations. In the case of CICL respon-dents in BBRC, half of them had spent 2to 3 days in police cells before they weremoved to BBRC, while one-fifth spent 4to 5 days and even longer during holidays.

Moreover, since most police stations hadonly one or two cells, if both males andfemales are held, CICL are kept in the cellstogether with adults of the same sex. Asidefrom this, there were no police funds forfood, beddings, utensils and clothes so thatwithout the gifts coming from relations,friends and/or fellow inmates and some-times the city social worker (CSW), thechildren would go hungry. In addition,most cells are very cramped and unsani-tary.

In Cebu’s three family courts in 2001, 79%of those awaiting arraignment/trial weredetained, 11% were bonded10 and 5% werereleased on own recognisance (ROR).11

Posting bail. In the Cebu study, 91% ofCICL in custody were detained pendingarraignment or trial, while only 8% hadbeen sentenced. The issue of bail12 seemedoften to be first raised during the filing ofthe case with the prosecutor. However, chil-dren were often not informed of their rightto bail. Of the 40 BBRC respondents, about15% said they were made more aware oftheir rights, 50% thought their cases werebailable, and 30% said they were never toldof their right to bail. In the Davao study, itwas estimated that 80% of cases were bail-able. The cost of bail was variable accordingto the offence and could be set from Php500 (US$ 8.90) to Php 120,000 (aroundUS$ 2,145). Most poor families could noteasily afford these amounts. Instances ofROR were few before going to the familycourt (for instance, 22% were released onROR by family courts in Metro Manila).

10 That is, an insurance company has agreed to pay the amount of bail (defined in Footnote No. 10) set andto whom the recipient pays 10% for each year spent out on bail.

11 To “release on one’s own recognisance” means to release from custody without requiring the personto post bail.

12 Bail refers to the money that a person charged of a crime or offence pays as a guarantee that he or shewill show up in court at a later date.


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ARRAIGNMENT

According to the Cebu study, arraignment13

usually took two months. The Metro Ma-nila study, however, indicated a longerperiod (around 2 to 3 months) with 10%of the CICL whose cases were examinedspending less than a month; 28%, a month;37%, 2 to 3 months and 19%, 4-20months.

In terms of the child’s plea, 75% of theCebu CICL said they were guilty but theyalso said they were persuaded both by thepolice and the Public Attorney’s Office(PAO) lawyer to plead guilty (amin) as oth-erwise they would spend a lot of time incustody (which unfortunately seems oftento be true). However, in Metro Manila,most CICL pleaded “not guilty.” Cases in“not guilty” pleas were often delayed be-cause of the failure of the complainant tocome or the lawyer concerned to attend.There was automatically a delay of 15 daysfor a social background report.

SENTENCING BY THE FAMILY COURT

After arraignment, CICL usually remaineddeprived of their liberty for two to threemore months before going to court for sen-

tencing. The only way to avoid this was ifthe child’s family had the money for a com-petent and active lawyer.

Family courts were only introduced in1997. The AKAP-AHRC (1998) and theUNICEF have recommended their exten-sion. However, these courts do not dealwith CICL cases alone but also with casesinvolving children as victims and all civilcases where children and adults are involvedtogether.

In Cebu, more than half (278 cases, or62%) of the 447 cases brought at the threefamily courts in 2001 had been decided.However, almost all (255 cases, or 92%) ofthese cases resulted in children serving sen-tences in custody (232 in jail and 23 inRRCY and Balay). Non-custodial sentences(fines and reprimands) came to only 1%.Four percent of the resolved cases were dis-missed while in 2% of the cases, thechildren had been serving beyond their sen-tences. Of the total cases filed at the familycourts, 134 cases (30%) were still pending.

According to key informants from thecourts, majority of the CICL cases in Davaowere terminated by dismissal rather than

13 Arraignment refers to the initial appearance of an accused person before a judge in a criminal case. Atan arraignment, the charges against the person accused of a crime are read, a lawyer is appointed if theperson cannot afford one, and the person’s plea is entered.


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by sentencing. Most of these involved chil-dren who have over-served their sentenceswhile being remanded in custody. In somecases, the complainants withdrew theircharges or failed to turn up. Sentences wereusually automatically suspended, and youthoffenders given this sentence were sent tothe RRCY and the RCDD and/or orderedto pay fines to the victims or their families.

In Davao, stakeholders seemed to see aclosed institution as the appropriate placefor those given a suspended sentence. Theconcept of a suspended sentence is verydifferent in the Philippines than in the UK,where it would mean a non-custodial sen-

tence. However, according to key infor-mants in the Davao study, there was a 60-40division in favour of the court giving com-munity sentences rather than suspendedsentences to be served in rehabilitation cen-tres. The perceptions of the stakeholders,however, seem to contradict what recordsindicate, which is an almost nil number ofcommunity-based sentences.

The Davao City Family Court appeared tobe very slow and congested, as it handledcases other than those involving CICL. Thenumber of cases disposed between 2000and 2001 fell from 686 to 411, while thenumber pending at the end of the year hadincreased from 569 in 2000 to 763 in 2001.

The Supreme Court has ruled that forCICL cases disposed with a sentence of lessthan six months, diversion at the local levelshould be administered (AM No. 02-1-18-SC, or Rule on Juveniles in Conflict withthe Law, Sec. 20). Despite this ruling, di-version was hardly being practised.

DETENTION

In the Cebu study, the average length oftime a child is detained was five monthsbut a number of the children (91) spentlonger than 12 months in detention; themajority (1,295, or 71%) spent less thanfour months in custody.

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The Metro Manila study was able to deter-mine the time interval between arrest andarraignment for 178 CICL cases. It foundthat an average of about two months lapsedbetween arrest and arraignment. For themost number of cases (35%), children spentthree to nine months; 21% spent twomonths; 28%, one month; and only 10%spent less than a month.

REHABILITATION

There were a number of rehabilitation cen-tres in the study areas. The most detail wasgiven on those in Cebu and Davao. Bothareas had an RRCY, which were only forboys and usually only for those on sus-pended sentence (which can only be givenon a first court sentence). Under a sus-pended sentence,14 the boys were allowedto leave the city jails upon the order of thejudge, which was usually following arecommendation by the DSWD or theCSW. As of August 2003, three 11-year-olds were present among the 43 childrenresiding at the RRCY in Argao, Cebu. Oneof them was there for allegedly stealing Php40 (72 US cents) and another for rugbysniffing. Thirteen were there for rape. It wasnoted that the children in the four dormi-tories were not separated according to age.

The condition in the RRCY was observedto be much better compared with that injails, as children there had their own beds,were cared for by the DSWD staff (referredto as foster parents) and had a daily rou-tine or schedule of activities that kept themoccupied. These activities included primaryschooling, training on life skills, sports,counselling, vocational training on variousareas such as farming, information on drugawareness and the understanding of valuesand spiritual development.

Despite these programs, the children werestill deprived of their liberty and, in the caseof children residing in the RRCY in Argao,lived quite far from Cebu City (two hoursby bus). As a result, the children’s parentsand friends seldom visited them. Some ofthe children even tried to escape, whileothers wanted to go back to the jail becauseof the boredom they felt despite the rou-tine. In addition, it was found in bothDavao and Cebu studies that children whojust arrived into the centres go through aperiod of from 3 to 14 days in an “observa-tion/isolation room.” This is the same roomwhere children were also sent for punish-ment or “disciplining.” It is not very clearwhat the purpose of this segregation was,

14 A suspended sentence is when the serving of the sentence imposed by the court upon a finding of guiltof the CICL is held in abeyance; meanwhile, the child undergoes rehabilitation


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whether this was intended to check on thenewcomer’s health or behaviour. Theirbeing mixed with children who were thereto be punished further confuses the room’spurpose.

In Cebu, there was also the BalayPasilungan and the Community Scouts,which are run by FREELAVA (a local NGO)and the CYRS, respectively. Both centres

provided children some degree of freedom– the children attended the local schools,including high school, and were allowed tovisit their parents at home (once a monthin the case of Balay Pasilungan). Moreover,the system was much less punitive (at theBalay Pasilungan, dishwashing was thepunishment given for bad behaviour).Other than this, the overall system andmanagement was similar to that of theRRCY.

Most of the 93 CICL (88%) in the Cebustudy agreed that their stay at RRCY hadprepared them to go back to their commu-nities and they are optimistic about theirbehaviour change. They said they havelearned to be responsible and respectful to-wards their elders. Mostly first offenders,these children expressed remorse, unlike thesecond- time offenders, who said that theyhad become incorrigible.

The Regional Center for Drug Dependents(RCDD) in Davao, like the RRCY in Cebu,had an observation room where newco-mers were often placed for two weeks. Thisroom was located in the basement of thebuilding and was described by the childrenas being “dark, damp and foul-smelling.”Children who had escaped from the RCDDand were interviewed in the Tagum Cityjail felt they were better off in jail than inthe centre. One child related, “We escapedfrom the RCDD because we did not like it

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there; the bartolina15 smelled foul, newcom-ers were mauled, then our clothes wereconfiscated.”

Another child shared, “Walay istorya, diretsolang sa bartolina, baho unya ngitngit pa gyud(There are no discussions, one is sent tothe bartolina immediately, the smell thereis so foul and it’s so dark!).” The RCDDalso served as a “catch-all” detention homefor children in difficult circumstances andboys caught in armed conflict charged withpossession of firearms. Corporal punish-ment, inappropriate punishment andisolation were apparently also common tothe rehabilitation centres in Davao.

The Metro Manila study covered fiveDSWD-run centres – the National Train-ing School for Boys, the Pasay City YouthHome, the Manila Youth Reception Cen-ter, the Marillac Hills and the Molave YouthReception Center – and one NGO-runcentre, the Kanlungan sa Erma. Of the 486children (out of 706) whose whereaboutshad been noted down in court records, 36%

were staying in these centres, but there wasno other information about them.

Children in all these centres remain underindeterminate sentences until they reach theage of 21. The children would be releasedearlier if the staff assessed that theirbehaviours have improved and if they rec-ommend release to the sentencing judge.Their stay, therefore, could last between sixmonths and five years. Balay Pasilungan inCebu involved the child and his/her par-ents in planning for the child’s release, andmonitored his/her reintegration into thecommunity.

EARLY RELEASE AND AFTERCARE

PROGRAMMES

Of all the jails covered by the studies, onlythe Mandaue City Jail had an early releasescheme, which, according to the jail man-agement, saved them some Php 200,000(around US$ 3,500) in 2001.

Supervision through aftercare16

programmes seemed largely absent. The

15 A Filipino word for a room without windows, often referring to a prison cell for solitary confinement.It is also often used to refer to any room that is poorly ventilated or very small.

16 Aftercare programmes provide services to children and youth who are released from residential orinstitutional placements. Ideally, aftercare programmes are concerned not only with supervising thechildren but also with providing opportunities for education and work and facilitating the children’sreintegration into the community.


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17 As mentioned earlier, at the time of the study, CICL in Davao City and neighbouring areas were beingharassed or stalked by unidentified armed men; some were summarily executed on the streets byvigilante or paramilitary groups, to whom some people gave the name, “Davao Death Squad,” amongothers.

Metro Manila study showed that only about25% of the children who are released fromthe centres are followed up. Meanwhile, theDavao study noted the absence of aftercareservices. It observed that evading the deathsquads17 appeared to be foremost in the

minds of the released children rather thanreintegration. Moreover, family and com-munity support in Davao was observed tobe weak, given the high number of brokenhomes and high levels of poverty.

“It would be very difficult to changebecause in the eyes of the people, wealready have a bad record.”

– A child from the RegionalRehabilitation Center for the Youth,Cebu City

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The research studies were able to identifysome important features and approachesconcerning diversion, discussed below.

EXPERIENCES OF DIVERSION IN CEBU

In Cebu City, an informal agreement forgedby the CYRS with shop owners, which wasformalised in 2000, had significantly re-duced the number of court appearances ofchildren involved in shoplifting. Accord-ing to the agreement, any child who hasshoplifted should either return the stolengoods or pay the shop owner the full valueof the goods stolen but no more.

This is unlike in other places wherestoreowners often demand ten times thevalue of what was taken. If this is not done,the shop owner files a complaint at thepolice station. Most often than not, the par-ents/child could not pay the amount andthe child is consequently placed in custodywhile she/he awaits a court hearing.

This agreement in Cebu City paved the wayfor more police diversion after arrest. Ofthe 3,267 CICL arrests by the police inCebu City in 2000-2001, 89% (2,914)were settled and did not go to court. Manyof these arrests would have been for shop-lifting. If diversion did not take place, the

number of children held in custody duringthis period would have been almost fourtimes greater. This is supported by the factthat in 1999-2001, only 1,297 CICL (or28%) of the 4,594 CICL arrested were de-tained (and some of these children indetention could have been in custody priorto 1999). This indicates a diversion rate of72% during that period (This number,however, must be taken only as an estimateas it is not altogether satisfactory to drawconclusions from across police and jail sta-tistics that have slightly different criteria forcalculating their figures). Outside CebuCity, the CCSW (City Council Social Wor-ker) has referred many cases to the DSWD,the barangays and Balay Pasilungan.

In Brgy. Ermita and some other barangays,diversion is also taking place primarily as aresult of FREELAVA’s implementation ofits “Community-based Diversion/Media-tion Programme for CICL” and its settingup of Children’s Justice Committees(CJCs).

According to 2001 statistics as cited in theCebu study, almost half of known CICLcases in Brgy. Ermita (36 out of 74) hadbeen diverted from the formal court pro-cess in various ways, primarily by releasing

5 DIVERSION AT DIFFERENT STAGES

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children with a stiff warning, while 14 morecases were also settled at this level. Thus, itappears that more than half (67%) of thecases were resolved in the community atthe least.

Only 8 of the 74 cases were forwarded toother entities outside the barangay (3 werereferred to the police and 5 were filed orfor filing) to decide how the CICL shouldbe dealt with.

The above figures point to the relative suc-cess of diversion efforts in Brgy. Ermita.Given that the figures presented above re-flect the reality before FREELAVA’sdiversion program started in October 2001,the diversion of CICL in Brgy. Ermita andin the other five barangays whereFREELAVA was also present can be ex-pected to intensify. It had been agreed,through the CJCs, that in these barangays,a case could not be filed against a CICLapprehended by the tanod or the policeunless an attempt had been made to settleit at the barangay level. An exception tothis would be CICL involved in grave of-fences.

The diversion of CICL at both the barangayand the police level in Cebu City is dra-matically different from those CICL whogo to the family courts in Cebu where, ofthe 278 cases decided in 2001, almost all(91%) will face some form of deprivation

of liberty either in jail (232 cases), in theRRCY (11 cases) or in Balay Pasilungan (12cases). Only 5 received a non-custodial sen-tence – 2 were fined and 3 werereprimanded.

EXPERIENCES OF DIVERSION INMETRO MANILA

Through interviews, the Metro Manilastudy drew out the stakeholders’ andchildren’s ideas and attitudes on diversion.The succeeding paragraphs present theseperceptions

Stakeholders’ practise of diversion. TheMetro Manila study highlighted the atti-tude of members of the five pillars towardsdiversion. More than half of those in thecommunity, the barangay tanods and thecorrectional staff thought that all CICLshould be diverted from the criminal jus-tice system. Those interviewed from amongcommunity members, the police, probationand the court social workers said that di-version should primarily be at thecommunity level, while those interviewedfrom the courts, prosecution and correc-tion said this should take place at all levels.Among the members of the pillars who wereinterviewed, the most number of those whosaid they practised diversion were the so-cial workers (76%), the courts, and theprosecution (73%). More than half of thoseinterviewed from among community mem-


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bers (66%) and barangay tanods (60%) alsosaid they undertake diversion at their level.The pillar that practised diversion the leastwas the police (46%). Based on interviews,the Metro Manila study was able to iden-tify several forms of diversion beingpractised by the different pillars.

Community and Barangay Tanod

• Procedure specified in theKatarungang Pambarangay Law

• Informal talks with the child, givinghim/her advice

• Children are given three chances, orotherwise turned over to the DSWD

• The child is asked to sign a letter,where he/she promises no longer toviolate the law

• Ask the child to clean the streets orperform tasks to beautify the barangay

• Call the child’s parents and ask themto sign an agreement

• Talk with both parties and urge themto settle the case amicably

• Lecture to parents and/or the child

• Ask the parents or the child to paydamages

• Give warning to first offenders

• Ask the children why they committedthe crime

Police

• Talk with the complainants and if theyagree to diversion, ask them to signthe police blotter

• Ask the parents of the child to signthe blotter if there is settlement

• Encourage parents of child to talk withthe Complainant and for the latter tosettle the case

• To reprimand the child, ask child toclean the office

• If first time offender, child is given awarning and a second chance

• Ask guidance counsellor of school tobe a witness

• Refer the child to the barangay

• Lecture the child, especially the par-ents

Court and Prosecution

• Diversion under the Rule on Juvenilesin Conflict with the Law

• Talk with the police officers and thecomplainant

• If the complainant does not appearduring trial, dismiss the case

• Ask the Public Prosecutor if settlementis possible

• During pre-trial stage, ask the com-plainant to settle the case


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Despite the above, many felt there was no“official” diversion programme, exceptthrough the court under the SupremeCourt Rules on Children in Conflict withthe Law. Only 42% of the 118 communitymembers interviewed said there was aBarangay Council for the Protection forChildren (BCPC) in their barangay. Only11% said there is a committee in the BCPCfor the protection of children, includingresolving issues of CICL. The largest per-centage of the stakeholders interviewedreported that they are able to divert less than10 children in a year. They all agreed thatthe most important consideration in pur-suing diversion were the nature of theoffence and the age of the child.

CICL’s attitude towards diversion. In thenine CICL case studies prepared by theMetro Manila study, the children wereasked what they thought about diversionand about how it should be done. Seven ofthe children favoured diversion. Five chil-dren wanted it to take place at thecommunity level so they would not be sentto jail, they would not be separated fromtheir families and they could avoid the po-lice exacting money for bail. They also feltthis was most appropriate for handlingpetty offences. One wanted diversion at thecourt level to ensure the compliance of dif-ferent parties, while another wanted it tobe applied for those under nine years old

and to take place at all levels, from thebarangay to the courts. One child felt thatprison helped children think about whatthey had done, while another’s position wasnot too clear.

EXPERIENCES OF DIVERSION INDAVAO

The Davao study reported that the CYRShad also tried to arrange a deal with storeowners wherein a child involved in theft ofan item valued at less than Php 100 (al-most US$ 2) should do community serviceat the barangay level. However, storeownersstill had little trust that the BCPC wouldensure that the system works. Storeownersdo little to stop children who have stolensomething but they usually wait until theyleave the shop to catch them. They alsomake out their complaint on the spot sothey leave the police little room for discre-tion. In the past, malls put up photographsof children who had shoplifted but this vio-lation of children’s rights has recentlydecreased.

Of the 180 barangays in Davao City, 104have a BCPC but child rights advocates aredoubtful as to whether they are function-ing. It is not easy to determine how manychildren are dealt with at the barangay levelas seldom is there a separate blotter for re-cording children’s names.


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Some experiments in mediation are beingpracticed at the barangay level, as repre-sented by the experience of Brgy. LosAmigos in Davao City, where the barangaycaptain had taken a special interest inchildren’s justice. The process did not al-ways directly involve the complainant.Investigation was undertaken with the childand his/her parents in a non-threateningway. If the child admits the offence, a deci-sion was made depending on the numberof times the child had committed an of-fence. For the first instance of offence, thechild must apologise and promise not tocommit the offence again. In the case of asecond offence, the parents of the child wereasked to pay for damages. For the third in-stance, the child rendered communityservice for five to seven days. A log is keptof what is done and a certificate is given tothe child and the complainant uponcompletion of the service.

The barangay captain reported that therehad been a sharp decline in cases/complain-ants concerning children from 400 to 500cases in 1997 to only 37 cases in January-May 2002. No case has been forwarded tothe police of late as all are dealt with at thebarangay level. However, when thebarangay captain lost in the 2003 election,this form of mediation appears to have been

discontinued, showing how fragile theseinnovations can be unless mandated in alocal ordinance.

The experience of Brgy. Los Amigos issomewhat similar to the system thatFREELAVA had set up in 12 barangays inCebu City except that the latter used theCJC in the BCPC whose members under-went training and were supported in theirdecision-making about interventions withCICL by adult community volunteers. Inaddition, young adult peer educators di-rectly assisted the diverted CICL to adopta less troublesome lifestyle. These peer edu-cators had been CICL themselves but havestayed away from trouble by being involvedin this and other initiatives (such as con-tinuing their education).

However, in Nabunturan, one of the re-search sites in the Davao study, the socialworker perceived the barangay to be usinguntrained people and exposing CICL tounnecessary interrogation. In response, theDSWD now convenes a case conference at-tended by the child, his/her parents andbarangay officials with the CYRS duringwhich a decision is made and then followedup with the child to instil accountabilityand discipline.

“There is an interview before one is put inside thecell. When your offence is theft, you are beaten-up,but when it is only curfew violation, you are simplysent straight to the jail cell.”

– A child interviewed in Davao City

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REASONS FOR COMMITTING

OFFENCES

In Cebu, 60% of the CICL interviewedshared that they offended because of per-sonal reasons, linking it mainly to their ownmisconduct and the temptations aroundthem especially if they live on the street.Of the Cebu study’s 93 key informants,75% admitted they had committed the of-fence. However, in the Metro Manila study,almost all of the children (92.7 %) coveredby the study pleaded not guilty. The CICL’scircumstances when asked for this infor-mation were probably very different, hencethe contradiction.

VIOLENCE IN THE HANDS OF THE

AUTHORITIES

From the time of arrest, CICL were alreadyexposed to violent treatment and intimi-dation. In Cebu, most of the 93 CICLinterviewed said they received rough treat-ment from the police on arrest (beingknocked on the head or collared), while75% were handcuffed (although Section 5of PD 603 allows handcuffing of children

only if absolutely necessary). More than half(61%) of the CICL interviewed said theyexperienced violence at the police station.The most common forms are mauling andpunching, followed by whipping, slappingand dunking their heads in water. Of thenine girls interviewed, two said they expe-rienced physical abuse.

While in Cebu it appeared that barangaytanods and security guards seldom inflictedharm on CICL, this seemed to be less thecase in Davao where, according to infor-mants, tanods and security guards wereinconsistent on how they treated children.There were reports of members of civilianvolunteer organisations beating up CICLafter arrest and encouraging the public todo so as well. The police were also chargedby CICL of encouraging adult prisoners tobeat them up when placed with them inpolice cells. A range of abuses, from shout-ing and pointing guns at CICL to tortureand sexual abuse, were reported. Informantsreported that girls experienced strong ver-bal abuse, including being called buntog.18

18 Buntog is a word in the Cebuano language that is a colloquial term for prostitute. Literally, it meansquail; used figuratively, it implies the act of hopping from one partner to another.

6 CHILDREN’S PERCEPTIONS OF THEIR EXPERIENCESIN THE CRIMINAL JUSTICE SYSTEM

45


46

One of the worst examples of police bru-tality was cited in the Davao study where agroup of five friends were given electricshocks to their anuses by the police for re-peatedly breaking the curfew.19 The Davaoreport was also more explicit about thesexual abuse of both girls and boys. A com-ment from a CICL that “boys become girlsinside police detention cells” is an area ofabuse that may involve both the police andinmates and about which little is knownbecause of the embarrassment and shamethat goes with it.

BRIBERY/SETTLEMENT

The Cebu study cited examples of the po-lice seeking bribes (areglo, literally meaningarrange or settle) before dropping the case.In Davao, there was a case of the policeseeking to engage a CICL as an informant.

FAILURE TO PROTECT THE PRIVACY

OF CICL

Apart from the WCD officers, other po-lice officers as well as the courts seemed toexert very little effort to keep informationand processes concerning CICL away fromthe attention of the media. The fact thatthe police often use the general blotter forrecording information on CICL means it

is open to media inspection. In Davao,CICL reported that they had been filmedwhile being interviewed by the police with-out their permission. In the Metro Manilastudy, only 5 of the 50 court and prosecu-tion personnel interviewed said that themedia should not come into contact withCICL cases.

CICL AND LEGAL REPRESENTATION

Only 10% of CICL in Cebu were seen bya lawyer before coming to court. However,most CICL in all the studies had a lawyerfrom the PAO to represent them in court.The children met their lawyers and dis-cussed their cases briefly beforehand. InMetro Manila, almost all (91%) of the 458known cases were represented by PAO law-yers and only 8% by privately hired lawyers.

LOCATION OF THE CHILD

The Metro Manila study was able to ob-tain a breakdown of the location of 486CICL whose whereabouts had been re-corded by the court for the period 2001-2002 – 31% were in five DSWD centresand an NGO centre; 22% were in the cus-tody of their parents; 13% were at-large(gone missing); 11% were in jail and 2.5%were with relatives and friends. These fig-

19 The Davao City government has issued an ordinance that imposes curfew on minors between 10 p.m..and 4 a.m.


47

ures point to a greater preference forDSWD centres over jails. However, almosthalf of the CICL (42%) were still deprivedof their liberty, but 25% were legitimatelyin the community. This is quite differentfrom the situation in Cebu that was de-scribed earlier in this study (see the section,“Diversion at Different Stages”).

In 2001, about half (53%) of 447 knowncases in the three family courts were in someway deprived of their liberty. It was notknown where the 134 children with ongo-ing cases were being held, although itseemed likely they were also in custody. Ifthis was such, it would mean that a greatmajority (82%) were in some form of de-tention (Ninety-one percent were reportedto be in custody awaiting arraignment ortrial).

SITUATION IN JAILS

In Cebu, it was quite usual for CICL, onentering their cell in jail, to be subjected toarbor (being compelled to take off theirclothes in exchange for old and worn ones).This takes place upon the instruction of asenior adult (the mayor) or fellow inmates.The clothes confiscated were then sold offby the senior inmates. In addition, newinmates were often told to contribute fromPhp 0.25 to Php 10 (18 US cents) to a sink-ing fund maintained for the purchase ofmedicines, among others.

Many CICL join jail gangs during their stayfor protection and comradeship, as familyvisits are irregular. Only 65% of the CebuCICL received visits. Self-mutilation(boreum) happens particularly among thoseaged 12-14 who were not visited and greatlymissed their mothers.

Many of the Cebu jails had no beddings orutensils for inmates. These were eitherbrought in by visitors, bought or inheritedfrom other inmates. Most jails had a bud-get of Php 30 (57 US cents) per inmate perday for food. Hunger and petty theft werecommon features of life in custody. Mostjails had some sort of medical facility, al-though the Mandaue City Jail did not.These facilities are open only during theday.

Young children were sometimes “adopted”by an adult as a sleeping partner and/or anerrand boy. An outreach worker for BBRCalluded to sexual abuse of children by adultinmates. This underscores the importanceof separating children from adults. This wasnot happening in the Mandaue and Lapu-lapu City Jails as well as in the ConsolacionMunicipal Jail in Cebu. At the BBRC andin the Lapu-lapu, Talisay and Mandauejails, girls were mixed with female adults.


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In the Parañaque City and Caloocan CityJails in Metro Manila, although childrenare kept in separate cells, they are in thesame building or compound. Thus, it didnot seem difficult for adults and childrento come together outside their respectivecells.

In Cebu City, Operation Second Chance,a separate detention facility for childrenawaiting trial, was established to segregatethe children from the adult offenders andto reduce abuses. This is run by the citygovernment and the BJMP. With this fa-cility present, in principle, there should beno children kept at the Cebu City Jail.However, abuse among children especiallyfrom the older ones, is still possible as in-dicated by a recent allegation of rape of onechild by three older children and a reportof group stabbings as revenge for bullying,all taking place after children had beentransferred to Operation Second Chance.

When it comes to activities in jail, childrenidentified the main activities as listening tothe radio, watching TV and Bible sharing/reading. Of all the jails in Cebu, only theBBRC had education sessions, which weregiven by an NGO three days a week. InMetro Manila, the jail staff said that themajority of the CICL (62%) could con-

tinue their education if they wanted to andthat there were some vocational trainingand occasional seminars.

EFFECT OF JAIL EXPERIENCE ON

CICL

According to the Cebu study, of the 93CICL in jails who were interviewed, ma-jority shared that their experience in jail hadaffected their lives negatively. The socialworkers and jail staff who were interviewedconfirmed this. Most of the CICL were firstoffenders. Moreover, they were concernedabout finding work, afraid they would beteased if they return to school or afraid sim-ply of the general prejudice from society.About one-fourth (24%) said they wereused to being in custody and that they couldadjust to life in jail easily as they did nothave to do anything. Some (15%) claimedthat custody had not affected their life,adding that they have become hardened andwere no longer afraid of jail and of com-mitting further offence. One first time maleoffender said: “Nagkadugay wala namakaapekto kay nisamot kaisog ug bugoygihapon (It has not affected me. The longerI stay here, the more I become unruly).”As one correctional staff member shared,“Some CICL were like puppies when theyfirst entered the jail; a few days later, theybecome rough.”


49

CICL’S ATTITUDE TOWARDS THE

REHABILITATION CENTRES

All the eight CICL interviewed by the Cebustudy who were staying at the RRCY inArgao preferred the RRCY to the Cebu CityJail. According to them, this was becausethe RRCY had no grills, had better food,provided them with beds and beddings, hadrecreational activities and had attentivestaff. Majority felt that being detained pre-pared them to go back to their communitiesand they were optimistic about theirbehaviour change. However, everyone com-plained of mingaw (loneliness) becausemost of them missed their families – halfof them did not receive visits, in some casesbecause the centre was too far.

While the centre had an elementary school,none of those interviewed had been en-rolled, maybe because it was after the schoolyear had started. Nonetheless, no informalschooling had been arranged. However,skills training were offered for those whowere not in school (e.g. block making, pigraising, cooking and farming). Some re-ported on their being placed in an isolationroom (The observation or isolation roomwas more fully discussed in the subsectionon rehabilitation centres under the section,“Children in Conflict with the Law at Dif-ferent Stages within the Justice System”).

None of the respondents knew when theywould be released or the process for it. Theyknew, however, that their release would insome way depend on their being of goodbehaviour while in the centre.

LACK OF AWARENESS AND

UNDERSTANDING OF WHAT WAS

HAPPENING

A frequent statement made by majority ofCICL interviewed in the Cebu study wasthat they did not understand what was go-ing on from the time of their arrest up towhen they were released. They were fre-quently not informed of their rights and ifso, little was done to ensure that these wereprotected. Often, they did not know whatwas going on when their cases went for fil-ing, what was going to happen in court orwhat had happened there. The majority didnot know how they came to be sent to arehabilitation centre nor when they wouldbe released and how that decision wouldbe made.

IMPROVING THE TREATMENT AND

REDUCING THE NUMBER OF CICL INMETRO MANILA

In the Metro Manila case studies, the nineCICL interviewed were asked their opin-ions concerning the gaps and problems inthe administration of justice and their sug-


50

gestions for improvement. Their commentson diversion have already been describedabove.

Of the nine children, seven had been ar-rested for the first time (one for a secondtime and one for a third time). Only twomentioned violence by the police. In onecase, a child claimed that a plastic bag wasput over his head to force a confession. Fourof the CICL described how the investiga-tion process and the court hearing wereopened to the media and/or the public. Intwo cases, the media filmed CICL beinginterviewed without the latter’s permission;one was with the barangay captain and theother at the police station.

The children gave the following suggestionsto help improve justice administrationamong children.

Age of criminal responsibility. When askedwhat the minimum age of criminal respon-sibility should be (which currently standsat nine years20 ), three different answerscame out: 20 (one response), 18 years (threeresponses) and 13 years (one response). Itis interesting how this seems to fit the studyon discernment conducted by PAYO (seethe section, “Related Studies”).

Role of parents. Seven of the CICL inter-viewed emphasised the importance ofparents talking and explaining to childrenwhy they should behave in a certain wayinstead of beating them because, as one boysaid, this only leads children to display ag-gressive behaviour.

Diversion. Seven supported the use of di-version when dealing with cases of CICL.

20 This means that below the age of nine, children do not know the difference between right and wrong

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Presence of female police. The children feltthere should be more female police offic-ers.

Procedure for arrest. Three children saidthe rights of the child and the reasons forarrest should be explained immediatelyupon apprehension.

Prevention at the barangay level. Two chil-dren believed that barangay officials andstaff have a role in helping children andkeeping them out of jail. It would help ifthere are more recreational facilities forchildren of all ages within the barangay.Children should not loiter on the streets;they are less likely to be on the streets ifthey are studying full time. Parallel to this,“round-ups” of children should not beallowed to take place.

Procedure in court. Two children suggestedthat the court ask the child for his/her sideof the story on what happened, as well asher/his views. They also said that the pub-lic should be kept out of the court.

Custodial care. The need for more fund-ing for custodial places for childrenespecially for food was also recognised.These facilities should also provide oppor-tunities for children to finish their studiesand gain access to books, conduct openforums (two responses) and provide guid-ance. Custody for children was also seen assomething that should not be pursued, al-though one said that this was all right ifthe child was really at fault.

Finally, the children see themselves as alsobeing able to change.

(no pic yet)

“I heard someone was killed outside the disco.I went and found that it was my friend, thefriend I took drugs with was killed. He wasthe one who told me to start a new life, thatwe can’t change anymore when we’re dead.”

– Nonoy, 17

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This section discusses the major findingsof the three researches, identifying com-monalities as well as significant deviationsamong the three studies.

FIRST OFFENDERS MONOPOLISE THE

CHILDREN’S JUSTICE SYSTEM

The findings of the three studies revealedthat almost all (more than 90%) of theCICL arrested (94% of 5,233 CICL inCebu) or whose cases had been lodged withfamily courts (99% of 706 cases in MetroManila and 91% of 452 cases in Davao)were first-time offenders. Moreover, a greatmajority (86%) of CICL in various custo-dial centres in Cebu were found to be therefor the first time and the majority of themwere also first-time offenders.

What is the implication of these findingson the children? The effect has not reallybeen established but it is very likely thatchildren would be labelled, both in theirown minds and in the minds of those intheir communities, as “criminals,” therebyincreasing the tendency towards furtheroffending. If the CICL had experiencedbeing beaten up by the police, this wouldalienate the CICL from law enforcers andwould turn them against the latter. If placed

with other offenders, the children tend tobecome more hardened into an anti-socialthinking.

The entry of CICL into the criminal jus-tice system has also been clogging up thecourts and custodial centres. The person-nel in these two institutions cannot do theirjob as well as they would wish and this coststhe taxpayers dearly. This is a waste of scarceresources.

The experiences in diversion presented inthe three studies also pointed to the avail-ability and feasibility of community-baseddiversion alternatives. However, guidelinesfor implementing this in the most effectiveway are required. The issue of how diver-sion can be best institutionalised will alsohave to be addressed.

COMMUNITY-BASED DIVERSION

A look into the different experiences in un-dertaking diversion at various stages in thejustice process indicated that the practiceof diversion and mechanisms for this re-main in most part non-functional ornonexistent. Below are some significant ob-servations as regards diversion at thecommunity:

7 SUMMARY OF FINDINGS ANDCONCLUSIONS

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54

• PD 603 “encourage[s]” but does notmandate the setting up of BCPCs. Fewwere active, and even fewer were in-volved in CICL

• The Lupong Tagapamayapa and theBCPC seldom divert CICL (with afew exceptions like Brgy. Los Amigosin Davao; and the few barangays inCebu City where FREELAVA hadsucceeded in setting up CJCs, whichwere known to have been divertingCICL).

• Although Brgy. Los Amigos had beenable to practise mediation and diver-sion in handling offences, includingthose of children, the mediation sys-tem reportedly collapsed when thebarangay captain lost the local elec-tions. This raises the issue of how toretain BCPC staff who had beentrained in and committed to media-tion/diversion.

• It was found that tanods were unawareof or did not use diversion in resolv-ing the cases of CICL. Instead, theytook CICL to the police.

• The provision on the KatarungangPambarangay Law in the Local Gov-ernment Code of 1992 mentionschildren only once (Sec. 415). It statesthe role of the mayor in achieving ef-fective implementation andadministration of the Katarungang

Pambarangay (Sec. 421). Settlementtakes place only if there is a privatecomplainant (Section 408) and if thereis a punishment of a maximum of one-year imprisonment or a penalty ofPhp 5,000 (US$ 89). The provisionon the Katarungan Pambarangay ap-pears too limited. The role of theLupon/BCPC should be expanded.

• Violation of local ordinances consti-tuted the third most common offencefor CICL in Manila and Davao. Manywere offences only if committed bychildren, and this needs to be reviewedas this often leads to their being placedin custody.

• Stakeholders in the five pillars of jus-tice were shown to support diversionat the community level but there ap-pears to be a need for a special bodyfor children’s justice in the BCPC. Anexecutive order, along with guidelines,seems to be required.

Several lessons were also derived from theseexperiences in diversion and mediation.These are as follows:

• Local initiatives and/or NGO-barangay partnerships are essential inestablishing BCPCs.

• Local ordinances, the political will (ofmayors, barangay captains, and other


55

local officials), advocacy in fosteringBCPCs, and Municipal and CityCPCs have a very important role ininstituting diversion.

• To ensure sustainability, the appoint-ment of members of the lupon or theCJC must not be limited to barangayofficials who tend to be replaced asmembers once they lose in the localelections.

• A variety of models are needed to en-able community diversion to takeplace effectively.

• By bringing in the parents, socialworker and lawyer at the investigationstage, the police can pave the way fora better understanding between theoffender and his/her parents and forthe consideration of diversion mea-sures and ROR.

DIVERSION AT THE LEVEL OF THE

POLICE

The findings also revealed that some formof diversion, quite few but with significanteffect, was also taking place at the level ofthe police. These positive outcomes are evi-dent in the figures presented in the Cebuand Davao studies, discussed below.

• The creativity of the WCD/CYRS inCebu in forging an agreement withshop owners resulted in the diversion

of 89% of CICL in 2000-2001. Thisunderscores the critical role of theWCD and the need for the PhilippineNational Police (PNP) to come outwith a national policy on diversion.

• The Davao police also practiced somedegree of diversion, referring 46% ofCICL cases in 2000 and 55% in 2001to the DSWD/CSW.

• The WCD and other key players needto prioritise those parts of cities whereoffending is most common.

VIOLENCE AGAINST CICL AND

FAILURES IN DUE PROCESS BY LAW

ENFORCERS

The studies also found that abuses from lawenforcers – verbal, physical and psychologi-cal – were common occurrence and therights of children were often denied or vio-lated. These are evident in the followingspecific findings:

• There is a failure in respecting childrights as well as a failure to securechildren’s right to due process. At thetime of this study, a discussion on thetreatment and handling of CICL can-not be found in the main PNPHandbook (Interestingly, a jointPNP-UNICEF handbook on childrenin extremely difficult circumstances orCEDC has 14 pages on CICL butonly one sentence on diversion).


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average of two to three months inappalling jail conditions.

• Social workers, prosecutors and thepolice seldom recommended ROR oraffordable bail at court.

• Judges are the ones who decide on thegranting of bail but this power wasobserved to have been largely under-utilised at arraignment, unless a lawyerrepresented a child.

• If bail was granted, the hearings wereextremely delayed to a point where thechild had already reached the age of18 and therefore had become nolonger eligible for sentences renderedto children (e.g., suspended sentence).

INCREASED BUDGET TO IMPROVE

CONDITIONS IN CUSTODIAL

CENTRES

It was found that conditions in both policecells and jails were quite appalling, withbasic facilities and supplies essentiallylacking.

In police cells, the following conditionswere consistently noted in all three studies:

• Overcrowding, or the lack of reason-able space;

• Absence of beddings in police cells andsome jails;

• No clothing was provided;

• Once a CICL was arrested, many lawenforcers started seeing that person asa criminal first, not a child, and there-fore, as a “criminal” had forfeited his/her rights.

• Superiors need to be up-front in moni-toring and in acting on violations.

• There appears to be a lack of under-standing of children’s rights andrelevant international instrumentsamong law enforcers.

Given these violations, there is a need togive the WCD more status within the po-lice organization and proper training forall police officers especially those in thefrontline.

BAIL

CICL’s access to their “right to bail” wasalso found to be very restricted, as reflectedin the following observations:

• Bail, when given, was usually mon-etary. Thus, this practice tended to bediscriminatory, favouring the betteroff. Family courts seldom recommendROR for CICL.

• Those who had not been convictedwere subjected to both pre-arraign-ment and pre-sentencing detentionunder very poor and subhuman con-ditions. Detention lasted for an


57

• No eating utensils; and

• No food provided.

The conditions are not any different in jails.Aside from the non-provision of beddings,food was also found to be insufficient. Itwas found that the average budget per dayfor each resident was only Php 30 (approxi-mately 54 US cents), which in MetroManila can buy only one meal of rice andfish or vegetable bought from a sidewalkfood stall. Aside from these, the researchesalso noticed that there are no educationsessions and few rehabilitative activities forCICL.

While diversion would help lessen the ef-fects of these problems, still the policegenerally would still require a budget formaintaining the cells.

LACK OF ACCESS TO INFORMATION

AND FAILURES IN DUE PROCESS

It was observed that CICL were often notgiven information that would help themunderstand what was going on as they wentthrough the justice process, as well as pressfor their rights and protect themselves.Neither were their views and opinions so-licited nor considered. The studies pointedto several instances:

• Most CICL do not understand whatis going on at each stage of the justiceprocess.

• CICL were not always told of theiroffence during arrest.

• The children were not informed of alltheir rights (e.g. their right to contacta parent or lawyer and a social worker,to remain silent, among others).

• In many instances, the police tried tocontact the child’s parents only byphone.

• In courts, the children were not askedfor their views.

Due process for CICL was also pervasivelyweak in the courts, as shown in the follow-ing findings:

• There was no proactive action to ar-range bail for CICL.

• Police officers and PAO lawyerstended to press for guilty pleas.

• Representation by the PAO was foundto be superficial and last minute.

• Seldom was a court Case Study Re-port prepared by the social worker forthe court.


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VIOLATION OF CICL’S PRIVACY

It was observed that the CICL’s privacy wasnot ensured particularly in the courts. Thestatus of the CICL was often not kept pri-vate and was instead divulged to the media.Moreover, hearings in the family court weremade open to the public and the media.Given this, guidelines for all court person-nel involved in CICL procedures, as well

as for responding to CICL’s queries mustbe required.

OUTDATED LAW WORKS AGAINST

PROPORTIONALITY

Penalties specified for theft in the RevisedPenal Code of 1932 (Title 10, “CrimesAgainst Property,” Chapter 3) manifestshow outdated the law has become with in-

Value of property stolen Penalty Term of imprisonment/Detention

Excess of P 22,000 Prisión Mayor maximum + 1 year for 10 years and 1 day - 12 years +each additional P 10,000, but total years 10 yrs but not exceeding 20 yrsimposed not to exceed 20 years

> P12,000 ≤ P 22,000 Prisión Mayor minimum and medium period 6 years and 1 day - 10 years

> P6,000 ≤ P12,000 Prisión Correccional medium and maximum 2 years, 4 months - 6 years

> P200 ≤ P 6,000 Prisión Correccional minimum and medium 6 months and 1 day - 4 yearsand 2 months

> P 50 ≤ P 200 Arresto Mayor medium to Prisión 2 months and 1 day - 2 yearsCorreccional minimum and 4 months

> P 5 ≤ P 50 Arresto Mayor full extent 1 month and 1 day - 6 months.

≤ P 5 Arresto Mayor minimum and medium 1 - 4 months

≤ P 5 Arresto Menor or a fine not exceeding 1 - 30 daysP 200 pesos [1]

≤ P 5 Arresto Menor minimum or fine 1 - 10 daysnot exceeding P 50 [2]

Table 4. Penalty and term of imprisonment for theft by value of property stolen (1932 RevisedPenal Code)


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flation and the need for the penalties inproperty offences to be reviewed. As mostCICL offences are those against property,this law can be very harsh with children(see Table 4). It is essential that this code issuperseded by a law on Juvenile Justice asfar as children are concerned.

To illustrate, a 16-year-old caught stealinga very expensive cellular phone (wortharound Php 22,000 or US$ 393), underthe existing Revised Penal Code, could re-ceive a six-year sentence, child or no child.This is but a step away from the maximumpenalty imposed on theft.

COURT PRACTICE AND NON-CUSTODIAL SENTENCES

With only 78 courts across the countrydesignated by the Supreme Court as fam-ily courts, many cities and municipalitiesin the country would not have their ownfamily courts. However, even in placeswhere there are family courts, such as inthe research sites, practices and proceduresin most of these courts remain hostile orprejudicial to CICL. In the research sites,it was found that the courts did not keepseparate records for children.

It was also observed that international mini-mum standards were often not upheld. Forone, cases were certainly not “determined

without delay” (UN CRC, Article 40) bothin the time taken before arraignment (twomonths and five months in Manila andCebu, respectively) and for trial. Accord-ing to the Davao figures, the court processmay even be becoming slower. The delay isworsened by the fact that while awaitingtrial, these CICL were most likely deprivedof their liberty yet have not pleaded or havebeen found guilty. One good news in theMetro Manila study was the finding that92% of the CICL covered by the study re-ceived legal assistance from a PAO lawyerat the time of the arraignment.

It was quite evident that a culture of com-munity-based sentencing is yet to bedeveloped among judges in the familycourts. The following findings demonstratethis:

• Non-custodial sentences were seldomused (In Cebu, only 1% of 278 de-cided cases resulted in non-custodialsentences).

• Suspended sentences are usually spentin detention at rehabilitation centresunlike in the United Kingdom whereCICL in suspended sentences arebrought back to the community.

The Supreme Court Ruling on Juvenilesin Conflict with the Law, Section 32 could


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change this with the automatic suspensionof sentence for CICL. The Supreme Courtruling, however, allows diversion onlywhere the offence committed is punishableby a maximum penalty of six months de-tention. Thus, rugby sniffing, whichinvolves a minimum penalty of six monthsplus one day detention, is not includedamong offences that can be diverted.

Despite this, there had been little actionyet within the children’s justice system andthe society in general to press for and use apossible range of community-based sen-tences. With guidelines and training, moreserious cases could be resolved at the com-munity level through supervision,counselling on offending behaviour, com-munity service and mediation, amongothers.

CONDITIONS IN JAILS AND

REHABILITATION CENTRES

It was found that children in jails and re-habilitation centres were experiencing abusefrom the hands of the staff and even olderchildren. These and other findings detail-ing the dreadful conditions in places ofcustody point to either an absence of offi-cial guidelines for the staff as to howchildren should be treated in custody, a lackof awareness of the existence of such guide-lines or conscious non-compliance with

such guidelines. The confinement of a new-comer in an “observation room” for 3 daysto 14 days in isolation or with others forpunishment is likely to cause unnecessarydeprivation and regulations for this seemednonexistent.

The lack or absence of a serious rehabilita-tion programme in custodial centres wasalso common. Children were found to ex-perience boredom in jails, with themonotony of routine pushing them to es-cape. It was also observed that very few ofthe CICL are able to go out to attendschool. Reintegration planning was alsofound to be minimal.

Children also said they prefer a centre withat least semi-open conditions like the BalayPasilungan and the Community Scouts,where they could go out to school and visittheir families.

There was also no proportionality in sen-tencing for CICL sent to rehabilitationcentres, as CICL often received indetermi-nate sentences. Even if the child is a firsttime offender, the decision of when to re-lease the child is primarily made by thecentre staff. It was revealed that childrenwere kept in custody anytime from sixmonths to five years. There appears to be aneed to review this practice.


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Meanwhile, CICL who have been con-victed a second time are not officiallyeligible to be placed in a rehabilitationcentre. Thus, they are either sent to jail ormade to apply for probation. However, onlya few seemed to know how to go aboutapplying for probation.

PREVENTION OF OFFENDING

Prevention of offending seemed largely ig-nored yet this is fundamental if offendingis to be reduced. This is linked to the

delivery of children’s rights in the commu-nity. The studies found that the factors thatpush children towards offending includepoverty, domestic and gender violence,dropping out of school, peer group pres-sure, public attitudes and overcrowding athome (that led children to go to the streets).

Violation of local ordinances (e.g. anti-ped-dling and status offences like curfew),which are usually penal and involve thepossibility of custody, was found to be thethird most common cause of arrest forCICL in Manila and Davao. Anti-peddling,for instance, compel children engaged instreet vending to commit an offence whenin fact they are merely involved in a liveli-hood activity, often a self or family survivalmechanism.

The five pillars, in a coordinated way, couldbe a major force in locally advocatingagainst such ordinances (such as withLGUs, shop owners, BCPCs). In addition,there is a need to support poor families byensuring schooling, health care, a basic stan-dard of living and opportunities for workand recreation.

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CHILDREN’S PARTICIPATION IN CICLISSUES

Aside from the work of FREELAVA in di-verting CICL in Cebu, there was little/noinvolvement of children in the diversionand reintegration of CICL.

FREELAVA gives training to former CICLand selects those who are adopting pro-social behaviour to work with adultcommunity volunteers in assisting CICL,such as through counselling or giving ad-vice. This involvement of former CICLassists their reintegration and empowersthem to help present CICL (as they speakfrom experience).

Former CICL have an important role asadvocates for or as advisers/researchers onchildren’s justice, particularly drawing fromtheir experiences as formerly detained chil-dren – experiences in the criminal justicesystem and in mediation, among others.Imaginative schemes like this with youngpeople, especially former CICL, can con-tribute significantly in reducing offending.Most of the CICL covered in the MetroManila case studies have stressed the roleof parents and that of diversion at thebarangay level, as well as how the staff canhelp. Individual suggestions included ban-ning “round-ups” and the need for morefemale police officers.

VIOLATIONS AND DENIALS OF

CHILDREN’S “BEST INTEREST”

The studies revealed several instances wherethe “best interest” of children, as providedfor in the UN CRC and other internationalinstruments, are violated or denied as theygo through the justice process. The follow-ing are but some of the specific provisionsthat were being violated or ignored.

• “No child shall be subjectedto…cruel…or degrading treatment orpunishment” and “every child de-prived of their liberty shall be treatedwith humanity” (UN CRC, Art. 37).

• “To have his or her privacy fully re-spected at all stages of theproceedings,” (UN CRC Art. 40).

• Children’s cases should be “determinedwithout delay” (UN CRC, Art. 40).

• “The child shall in particular be pro-vided the opportunity to be heard inany judicial...proceedings affecting thechild…” (UN CRC, Art. 12).

• Provision of bedding, clothing, food,complaints and requests, medial care,etc., for those in custody (UN Stan-dard Minimum Rules for theTreatment of Prisoners)

• “Deprivation of personal liberty shallnot be imposed unless the child is ad-judicated of a serious act involvingviolence against another person or of


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persistence in committing other seri-ous offences and unless… no otherappropriate response” (Beijing Rules,Sec.17).

• “Arrest, detention or imprisonment ofa child... shall be used only as a mea-sure of last resort and for the shortestpossible time” (UN CRC, Art. 3).

There were also provisions on diversion thatwere also being ignored:

• “…police, prosecution or other agen-cies dealing with juvenile cases shall

be empowered to dispose of such cases,at their discretion, without recourseto formal hearings…” (Beijing Rules,Sec. 11).

• ”States Parties shall seek to promote…measures for dealing with such chil-dren without resorting to judicialproceedings…” (UN CRC, Art. 40).

• “Reintegration shall take place in anenvironment which fosters the health,self-respect and dignity of the child”(UN CRC, Art. 39).

“We are trash in the eyes of society andbecause we are regarded as such, we areprone to do wrong.”

– Tata, 17

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The following gaps and issues were raisedin the three studies, categorised accordingto the five pillars of justice.

COMMUNITY

Parents/Guardians

• CICL in both the Cebu and the Ma-nila case studies emphasise more thananything else the role parents can haveboth in pushing them away from thefamily because of their behaviour orhelping them come through the diffi-cult adolescent period by talking,explaining and guiding them in whatthey as parents see as being right.

• Parents should be aware of the harmthat domestic violence betweenspouses has on children as also thebeating of children.

• More needs to be done to enable par-ents to know the importance of theirroles and to inform them of goodparenting practice. Some parents ac-tually want jail officers to take theirchild without court proceedings andsome refuse to take them back afterbeing in custody or while on ROR.

• The UN CRC stresses in its preamblethe family’s role in the growth and

well-being of children. However, inpoor families, the amount of time andenergy is often limited because bothparents have to work and because ofthe heavy pressures of scrapping to-gether a subsistence living.Government needs to look at ways ofalleviating this situation with a mini-mum wage, good working practicesfor parents, pre-school facilities, edu-cation for all, among others.

Local government units, the barangay andits officials

• There is very little understanding ofthe potential role of BCPCs withinbarangays.

• The role of pro-actively protectingCICL at the barangay level throughmediation is a vital part of diversion.The barangay captain’s initiative inBarangay Los Amigos in Davao andBarangay Ermita in Cebu, as well asthe joint efforts of barangay officialsand FREELAVA in 12 BCPCs inCebu City through a Children’s Jus-tice Committee, has had a positiveeffect on children’s lives. Unfortu-nately, these are the exceptions. InMetro Manila, less than half of the

8 GAPS AND ISSUES CONCERNING DUTY-BEARERSIN THE FIVE PILLARS OF THE JUSTICE SYSTEM

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barangays have a BCPC and inbarangays where BCPCs are present,apart from providing sports activities,few are otherwise functional and fewerare concerned with CICL.

• The importance of diversion isemphasised in Article 40 (3b) of theUN CRC, which says that: “StatesParties shall seek to promote… when-ever appropriate and desirable,measures for dealing with such chil-dren without resorting to judicialproceedings…”

• There is little understanding in thebarangays of children’s rights and “bestinterest,” of prevention, diversion, re-storative justice, rehabilitation andreintegration.

• To better protect children, LGUsshould mandate the setting up ofBCPCs and monitor their roles inadvancing the best interest of children,including that of CICL through me-diation. Much hinges on the supportof the mayor and the barangay cap-tain as they are usually more interestedin infrastructural growth than childrights.

• The barangay captain and officialsshould find ways in conjunction withother players (such as NGOs, themedia and the private sector) to ad-vocate for the importance of the

BCPC and to involve members of thecommunity in helping children whoare victims, “at risk” or are in conflictwith the law. Presently, there is lowpublic awareness of why childrenshould be kept in the community andnot institutionalised.

• Some of those involved in mediationand the CJC should be appointed onmerit by a body well-disposed tochildren (such as the Barangay Devel-opment Committee) and not solely bythe barangay captain, and that they beappointed for four to five years to en-sure continuity.

• The tanods should be encouraged tobring all CICL (90% of whom arelikely to be first offenders) to theBCPC for resolution and not to takechildren straight to the police. Thesuccessful functioning of such a pro-cess would dramatically reduce thenumber of children being held in cus-tody and going to court, thus savingconsiderable money, greatly reducingthe criminalising of children andthereby allowing the authorities to usetheir services better for the most seri-ous offenders. To succeed, this requiresofficials to have an understanding ofthe rights of the child and to be moti-vated to work in their “best interest.”


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• Wherever possible, translated versionsof the Riyadh Guidelines on the Pre-vention of Juvenile Delinquencyshould be made available to barangayofficials so they would be aware of itscontents.

• NGOs should be seen as possible part-ners by barangay captains and thebarangay council in CICL advocacy,monitoring and mediation implemen-tation.

• Support to BCPCs from all pillarsconcerning CICL mediation wouldhelp.

• There are very few programmes any-one is aware of for reintegrating CICLback into the community.

Social workers (DSWD and CCSWs)

• CCSWs could greatly assist in the pre-court diversion process as they havethe right to be involved immediatelyafter apprehension, to refer cases backfrom the police to the barangay, topropose ROR for the appropriate per-son, including placement in NGOcentres. However, they currently sel-dom visit a CICL until just beforearraignment, usually because of a re-ferral. The studies showed that socialworkers usually only become involvedduring the detention period and dur-ing after-care.

• A better coordination process mighthelp bring them in earlier to encour-age diversion but it would require adecision by the DSWD and the LGUover the most effective use of their lim-ited staff resources.

LAW ENFORCEMENT—THE POLICE

AND THE TANODS

• Tanods appeared unclear of their rolewith CICL.

• There is nothing in the main PNPHandbook on CICL. While the pro-cedure for dealing with children is laiddown in the PNP-UNICEF Hand-book on CEDC, as it is not in themain handbook, the frontline policeappear to ignore it. The problem ismore with the lack of knowledge andnon-implementation of the rules con-cerning “due process” rather than thelack of such rules as these had beenset out in PD 603 (e.g. the eight-hourrule for informing child of offence andrights; contacting parents and socialworker/lawyer; 12 to 36-hour rule formedical checks, investigation and casefiling).

• It is imperative that the abuse of CICLby the police is stopped. It is commonfor CICL to speak about the abusethey are subjected to on arrest by thepolice. International standards are very


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clear: Article 40 of the UN CRC statesthat the child should be treated “in amanner consistent with the promotionof the child’s sense of dignity andworth.” Further, Article 37 states that“no child shall be subjected to tortureor other cruel, inhuman or degradingtreatment or punishment” and “thatevery child deprived of their libertyshall be treated with humanity.” It isclear that the current standards fallwell below that which the Govern-ment of the Philippines hasundertaken to uphold.

• Frontline police are resistant to doingCICL work as they do not see this astheir job but that of the DSWD.Moreover, they do not see themselvesas having a “community relations”role, which is necessary when promot-ing diversion.

• There is a lack of clarity in the law asto what to do with children after fil-ing a case – whether they should beplaced with DSWD or with the BJMP.

• The role of the WCD of the PNP issplit under the Directorates of Inves-tigation and Community Relations,with Investigation having the opera-tional authority. Under such anarrangement, it would seem that thecommunity initiatives of the WCD arereduced and the community-relations aspect of its workdeprioritised.

• The WCD is generally understaffed(As of this writing, the ratio of front-line police to the population in thePhilippines is 1:701). Usually, there isonly one WCD officer per police sta-tion. In some cities, there are two.

• Most WCD officers are only on dutyduring the day and not at night whenmost arrests take place. There are onlya few cities with WCD officers 24hours a day, such as Davao. If therewere more all-day WCD officers in

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areas where there are high numbers ofyoung offenders, then diversion islikely to increase.

• There is a need to know how theWCD is perceived within the PNPand how it is closely monitored.

• It is clear from the experience in CebuCity that the police have helped byforging their agreement with shopowners to divert most child shoplift-ers from custody. Because of this andother actions, 68% of cases (3,120) areclosed and never went to court. Whatis the reason for Cebu CYRS beingable to negotiate with shop-owners sowell and why can this not be done else-where?

• Wherever possible, sending childrenback to the barangay for their case tobe resolved would be the best solutionas most children are first offenders.

• Apparently, the PNP has no funds forfood, beddings, and other amenitiesfor those held in cells.

• Most police stations have only twocells. If both adult sexes are present,then children and adults will be mixed.

• Ancillary police groups (e.g. SPAGs,CVO, DCPA and CSU) should begiven proper, adequate and intensivetraining on how to properly handleCICL according to the UN CRC andother international instruments.

• Are there PNP guidelines concerningpolice use of discretion and diversionbefore and after arrest? How muchdiscretion for diversion do the policehave? How can the police become aforce for diversion?

• Coordination between the police, thetanods, the barangay, the localDSWD, the LGUs and the courts isquite weak.

• Other international standards veryrelevant to the police are as follows.

- Beijing Rules, Sec. 11 on diversion:“The police, the prosecution or otheragencies dealing with juvenile casesshall be empowered to dispose of suchcases, at their discretion, without re-course to formal hearings…”

- Section 10 on initial contact

- Section 12 on specialization within thepolice

- Section 13 on detention pending trial,which sets out good practice for theenforcement services and their staff

Article 27 of the Beijing Rules refers to theUN Standard Minimum Rules for theTreatment of Prisoners, which applies par-ticularly to the Philippines with respect tothe provision of beddings, clothing, food,complaints and requests, medical care,among others, for those in police or BJMPcustody.


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PROSECUTION

• Family court prosecutors could havea role in upholding the “best interest”of the child when his/her case is filed,such as to advocate for less seriousCICL cases to be resolved by diver-sion.

• Is their role to work for the “best in-terest” of the child?

• Often, prosecutors do not informCICL that the case is bailable.

• The prosecutors’ role in pushing forROR or otherwise a reasonableamount for bail seems weak.

• Prosecutors should not be a cause ofdelay in the filing and hearing of cases.

• There is a lack of coordination be-tween the police, the court and theCSWs, prosecution, the PAO and thejudges regarding community-basedalternatives to deprivation of libertyof CICL.

• International standards state that the“prosecution …dealing with juvenilecases shall be empowered to disposeof such cases, at their discretion, with-out recourse to formal hearings…”(Beijing Rules, Sec. 11). Also, Article40 of the UN CRC states that thechild’s case should be “determinedwithout delay.” However, the currentsystem is often very slow and moreoften than not, the child is held in cus-

tody so that at the time of sentencing,the offender has already been incar-cerated for longer than the sentencethat can be given. A group of threechildren in Davao, at age 13, wereasked to help farmworkers move co-conut shells and were later arrested fortheft. These children had been await-ing trial for 6 years. At the time of thestudy, they had reached the age of 18and dreading what might happen tothem, being now considered as adults.

COURT

Judges

• In Metro Manila, judges visit the pris-ons one to three times a year andbecause of Supreme Court Adminis-trative Circular No. 04-2002, this isnow the expected duty of all desig-nated judges. This may be a useful wayfor judges to become more aware ofthe awful conditions in the jails andthe loneliness (mingaw) children evenexperience in the rehabilitation cen-tres.

• Case study reports by the CSW oneach CICL before sentencing are notautomatically prepared.

• The public and press are often allowed,or not prevented from entering aCICL hearing in the family court (inMetro Manila, only 39% exclude the


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public). This is in direct contraven-tion of Article 40 (2bvii) of the UNCRC.

• The judge seldom seeks the child’sviews. Everything is left to his/hercounsel. Article 12 of the UN CRCstresses the child’s right to be heard.There does seem an obligation for thejudge to check whether the child isbeing correctly represented andwhether he/she has anything furtherto say.

• There seems to be little understand-ing by court officials of a child’s “bestinterest.”

• Judges can push for speedy trials. Thiswas likely the case in Pasay City. Frombeing the city with the second mostnumber of CICL cases filed in MetroManila in 1981, the Pasay City Fam-ily Court in 2001 had become the leastbusy of the five city courts looked atin the Metro Manila study. This wasattributed to the attitude of the resi-dent judge, who heard cases with aslittle delay as possible and avoided in-carcerating children. This shows thatjudges can truly take initiatives.

• As so many CICL coming to court arefirst offenders who are not hardenedto offending, bail should be a pre-sumption and community disposalsprioritised.

• Judges make too much use of deten-tion and make little use ofcommunity-based sentencing, despitealternative ways of imposing a sus-pended sentence (Supreme CourtRuling on Juveniles in Conflict withthe Law). The UN sets out in the To-kyo Rules information concerningnon-custodial sentencing, which isimportant reading for judges in thefamily court.

• Article 37 of the UN CRC is not fol-lowed, namely, that detention shouldonly be used “as a measure of last re-sort and for the shortest possibletime.”

• The family court judges have a role inadvocating for diversion.

• The Supreme Court should considerincreasing the seriousness of offencesfor community diversion to a maxi-mum penalty of six years. It would behelpful if the Supreme Court reviewedthe use of status offences, that is, whenan offence is only such for childrenand not for adults (e.g., curfew ordi-nances).

• There should be a greater role for pro-bation officers with CICL who have asecond conviction.

• With regard to good practice in sen-tencing, Section 17 of the BeijingRules states that “Deprivation of per-


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sonal liberty shall not be imposed un-less the child is adjudicated of a seriousact involving violence against anotherperson or of persistence in commit-ting other serious offences andunless…no other appropriate re-sponse.” Very few children currentlyin custody would fall under these cri-teria, so most if found guilty shouldbe serving their sentences in the com-munity.

Public Attorney’s Office (PAOs)

• There are not enough lawyers in thePAO. Thus, it is not possible for themto see every CICL upon arrest.

• PAO lawyers, although criticised fornot contacting CICL before comingto the arraignment, seem to be undera heavy workload. In Davao, two PAOlawyers take eight to 10 cases per day,which would leave little time if theyare to be presented properly for visit-ing CICL at the time of arrest.

• PAO lawyers do not appear active inseeking bail for CICL at arraignmentnor in advocating for non-custodialsentences.

• Should it be the task of the PAO tocheck whether a CICL has overstayedin custody and to inform the judge?

• Because of the rushed nature of theproceedings and the lack of prepara-tion, it is questionable whether thecourt process is explained satisfacto-rily to the CICL or the case ispresented “in the best interest of thechild.” The PAO lawyer often tries topersuade the CICL to plead guiltyrather than to take the risk of gettinga very long stay in custody.

• Training on children’s rights for PAOlawyers is required.

• To give fair justice to children, morePAO lawyers should be recruited.Government should also allocate morefunds as representation, especially fora child in custody and facing a custo-dial sentence, is a child’s right underthe UN CRC (Article 40).

Probation Officers

• There is one probation officer per citybut they do not seem to be involvedwith CICL. No application was re-ceived by the probation officer inManila or Pasay City from those whohave already received a suspended sen-tence.

• Could these officers not be better usedto assist repeat offenders?


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CORRECTION

BJMP

• There are no separate rules for chil-dren in detention.

• CICL are not separated from adultsin some jails (e.g. boys in Mandaueand Lapu-lapu City Jails, and theConsolacion Municipal Jail; girls inthe Lapu-lapu, Talisay and MandaueCity Jails).

• Abuses (i.e., exploitative and sexual)were prevalent; as one CICL com-mented, “There are more vices insidethan outside.”

• There is little or no schooling in jails.Neither are there forums, vocationaltraining nor other activities.

• UN Rules for the Protection of Juve-niles Deprived of their Liberty (JDL)would be expensive to implement,which can be another reason to imple-ment diversion.

• Are UN Rules for JDL translated andread by all?

• Wardens also voiced their concernabout what happens to a child in theircare who approaches 18 years.

DSWD and foster parents in rehabilitationcentres

• As regards indeterminate sentencing,rehabilitation centres make the execu-tive decision as to when to stopdeprivation of liberty. Is this not abreach of the UN CRC’s standard forcustody at the “shortest appropriateperiod of time”?

• There is an issue about the use of theisolation/observation room for all newarrivals and mixing these newcomerswith those sent to these rooms aspunishment.

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• There is an insufficient number ofsocial workers for all CICL, includ-ing the latter’s case management.

• More attention appears to be given tothe offending behaviour. The issues ofthe CICL are seldom addressed.

• About 75% of CICL in Metro Ma-nila and 100% in Davao who werereleased were not followed up.

• Article 27 of the UN CRC (“No childshall be subjected to…cruel…or de-grading treatment or punishment”) isconstantly being violated inside cus-todial centres.

It should be noted that NGOs seem to feelthey are not given an active role in theseprocesses, except at the community level.There may be more they could offer at otherlevels as well.

THE ROLES OF THE FIVE PILLARS AND

POLICY MAKERS

The following are some of the significantroles that the members of the five pillars ofjustice and the policy makers can play increating a justice system that will put asprimary consideration the best interest ofthe CICL:

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• Addressing all these gaps and con-straints requires action by the policymakers within each pillar and regularmeetings across pillars at the central,provincial, city, municipal andbarangay levels.

• It requires their understanding of:

- The interdependent roles of the fivepillars;

- Children’s rights, the internationalstandards on children’s justice, espe-cially diversion and restorative justice;and

- The work of NGOs involved in thepromotion of children’s rights andchildren’s justice.

• It requires support for the JuvenileJustice Bill and advocacy for policiesto ensure its effectiveness.

• Asserting for resources

It should be clear from the above that theUN CRC and other international UN in-struments provide a set of good practiceprinciples for all those involved in the crimi-nal justice system in working for the “bestinterest” of CICL. However, relevant keysections need to be selected and presentedto each pillar rather than everything to en-able useful debate on the critical issues.There is much work to be done if theseminimum standards are to be met.

“My hope?...a happy family.”

– Tomas, Cebu City

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This consolidated study puts forward waysby which the five pillars of justice can workmost effectively for the best interest ofCICL.

WORKING FOR THE BEST INTEREST

OF THE CICL IN THE COMMUNITY

First offenders and diversion at the com-munity level

• All first-time offenders should be of-fered diversion in the community,unless their offences are very serious(e.g. murder, rape, extreme violence,among others).

• Graduated diversion (tariff ) should bedeveloped that will be based on thedegree of seriousness of the offence.Below is an example:

- Police/tanod warning at barangay orprecinct

- Police/tanod warning at home--parents present

- Apology to the victim

- Reparation/compensation

- Community work and/or adultguidance

- Mediation with the victim; agreementon reparation, apology and compen-sation

- Community work, adult guidance

- Mediation without the victim

• Guidelines on the principles and goodpractice in mediation processes andprocedures involving CICL should beproduced. Procedures for the follow-ing aspects should be included:

- The mediation body not being a courtbut a means of reaching agreementbetween the child offender and his/her family and the victim and his/herfamily with the aid of mediators

- The child admitting the offence

- Privacy

- The child making amends

- Restoring harmony

- Confidentiality, membership

- Culturally appropriate approachwithin human rights guidelines

- Training

- Pro-child/wise mediators

- Follow-up

• The court should refuse to hear a caseof a first offender unless it knows thatdiversion has been tried and failed, thechild did not admit offence or it is amatter of extreme violence.

9 RECOMMENDATIONS FOR PROGRAMMEWORK AND ADVOCACY

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• Police/tanod powers are clarified bythe PNP and the barangay respectivelyregarding diversion and tariff.

• The above tariff allows for diversionin the community after second andthird offences.

• Barangay should be allowed to dealwith CICL where maximum penaltyis six years. This may require a revi-sion of the Revised Penal Code.

• There should be a presumption of bailon ROR for all first and most secondand third non-serious offenders.

Setting up of and support to the BCPCsand the lupong tagapamayapa

• The national government and theLGUs should exercise their mandateto set up BCPCs and to provide theguidelines, training and funding forthe equivalent of the Children’sJustice Committee in either the BCPCor the Lupong Tagapamayapa.

• There should be a strong advocacywith mayors, city councillors, associa-tion of barangay councils, individualbarangay captains and other influen-tial players to set up councils for theprotection of children at the city, mu-nicipal and barangay levels.

• LGUs should issue a local ordinancethat would mandate the setting upand/or provide support to the BCPCand CJC.

• The CSWs and the DSWD shouldmonitor the BCPCs.

• There is a need for more research onthe most appropriate model of restor-ative justice. The practice ofindigenous communities that mayconstitute restorative justice can beexamined.

• Guidelines on principles and goodpractice should be developed, draw-ing from the experiences ofFREELAVA in implementing com-munity-based diversion through theCJC in BCPCs. This should also bedistributed to the DILG, PNP,Department of Justice, the SupremeCourt, DSWD, CWC and otherrelevant agencies and interestedorganisations/groups.

• The use of the FREELAVA model ofCJC, community volunteers and peereducators at the BCPC or Lupon canbe tried elsewhere.

• FREELAVA and other NGOs mayattempt to pilot work directly with theLupon on its setting up a CJC as thismay be a simpler model.


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• There should be funding for trainingand transportation for the barangay’sCJC work.

• LGUs should desist from doinground-ups or “rescues” of street chil-dren.

• There should be training of and coor-dination among barangay officials,tanods, influential local people andcity social workers, DSWD and thepolice in the handling of children.

• CICL matters, especially those con-cerning diversion, should beintegrated into the city children’swelfare codes, as in Davao.

Violation of local ordinances, status of-fences and penalties

• Local ordinances should not make of-fences for children those that are notoffences for adults, such as curfew.

• The penalties for violation of localordinances by children should not in-clude custody.

• Local ordinances should emphasisenon-penal child-friendly issues, notpenal ones as at present.


OF THE CICL AT THE LEVEL OF THE

POLICE

• The main PNP Handbook should beamended to include what is expectedof police when in contact with CICL.It should direct all police to adopt achild rights approach in how they treatCICL and to promote diversionthrough a tariff system including me-diation.

• The PNP should promote the successof and develop the WCD diversionefforts in Cebu (forging an agreementwith shop owners) into a national ini-tiative.

• Apprehending officers should use di-version methods.

• All PNP officers should receive train-ing on what is expected of them wheninvolved with CICL.

• A national seminar should be con-ducted with the PNP to studysuccessful models of diversion in thePhilippines and elsewhere, and to in-troduce a national diversionprogramme.


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• The number of WCD officers shouldbe increased in high offending urbanareas so that these officers can be onduty 24 hours a day.

• The WCD should be made open toall child-sensitive police includingmales.

• The PNP hierarchy should recognisethe advantage of a special Directoratefor WCD, which brings together In-vestigations and CommunityRelations.

• The PNP should work in a coordi-nated way with the other pillars ofjustice.

• There should be a presumption of bailfor all CICL on arrest without mon-etary payment, i.e., ROR. The onlyexceptions are cases of extreme vio-lence and serious repeaters.

• Certified NGO homes should be al-lowed to take children on bail who donot wish to go home. This needs tobe allowed and negotiated.

• The LGU, the police and relevantNGOs should work together withstreet children and street gangs to planhow offending can be reduced.


OF THE CICL AT THE LEVEL OF THE

COURT

• If ROR is not given at the filing of thecase or at arraignment, the prosecutoror judge must give the reason and itmay be appealed against.

• It should be the task of the police, theDSWD, the PAO lawyers and theprosecutor to ensure ROR is given toCICL, especially first offenders.

• There must be a limit to the length oftime a CICL may be kept in pre-trialcustody (e.g. three months).

• There should be a limit for bail (e.g.six months) after which the case is dis-missed.

• When diversion is not possible, non-custodial sentences should beprioritised except for extreme violenceor serious repeaters.

• Judges should use their influence tospeed up trials and make ROR thenorm.

• Judges should seek the views of CICL.

• Unless extreme violence or serious re-peaters are involved, no first offendershould be given a custodial sentence.


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• Separate court records should be keptfor children.

• If there is any reasonable doubt, non-discernment should be the ruling ofthe court.


OF THE CICL DURING CORRECTION,REHABILITATION AND REINTEGRATION

INTO THE COMMUNITY

• All places of detention should haveguidelines regarding the treatment ofCICL and should inform each CICLof his/her rights while detained.

• The JDL Rules should be applied.

• The giving of indeterminate sentencesas currently operational in rehabilita-tion centres should be stopped.

• Rehabilitation centres should be opento CICL who have been convictedmore than once.

• The use of observation rooms to iso-late children on arrival at rehabilitationcentres should be stopped.

• Semi-open institutions for CICLwhere custody is necessary should re-place the current closed ones.

CHILDREN’S PARTICIPATION IN CICLISSUES

• Children in the criminal justice sys-tem need to be informed of theirrights.

• Adults should ensure that the voicesof children, including CICL, aresought and heard in the community,in court, in institutions and in coor-dination bodies; and that they are ableto claim their rights.

• Interested young people, especiallyformer CICL, after appropriate train-ing and selection, may be encouragedto assist current CICL in their reinte-gration into the community, such asthrough recreational activities, positivepeer example and advice.

AWARENESS RAISING ON CHILD

RIGHTS AND PREVENTION OF

OFFENDING BY THE FIVE PILLARS AND

CIVIL SOCIETY

• Central and local coordinating groupsand relevant departments may arrangetraining discussions for stakeholdersboth focused by pillar and jointly, ofhow to meet the best interest of CICLand prevent offending and re-offend-ing.


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• It is important that facilitators/train-ers prepare and implement modulesthat will incorporate the relevant partsof the UN CRC, international instru-ments, proposals for a juvenile justicelaw and national laws, and make surethat these are presented according tothe specific roles and responsibilitiesof each pillar.

• Members of the five pillars should tellCICL about their rights.

• The five pillars should review how of-fending can be reduced at their levelof operation, which is in the “best in-terest” of children.

• Each area (region, city, municipalityand barangay) should participate inimproving the quality of children’slives by analysing and addressingareas of concern to children (gainedfrom their participation) through alocal plan of action.

• The five pillars should coordinate theirdecisions and advocate jointly on be-half of children at all levels.

• NGOs working in the field of care andprotection should also link up withNGOs active in children’s justice andwith the five pillars, with the perspec-tive that CICL came from anenvironment (at home and/or in the

streets) where there is abuse and vio-lation of their rights and, as CICL,continue to experience abuse as theygo through the criminal justice pro-cess and thus need protection as well.

• The five pillars and NGOs shouldpositively involve the media and theprivate sector in supporting diversionand restorative justice.

• The five pillars should advocate lawsworking for the “best interest of thechild,” CICL and protection policiesand the guidelines necessary for arights-based, fair and responsiblechildren’s justice system.

CO-ORDINATION AMONG THE FIVE

PILLARS AT THE NATIONAL AND

LOCAL LEVELS

• The national offices of concerned na-tional agencies should meet togetherregularly to develop and review a jointstrategy around a CICL “best inter-est” agenda.

• The CWC should take a stronger leadnationally.

• Trained CSWs should actively supportcommunity members in assisting inthe reintegration of CICL.

• The mayors and barangay captainsshould bring together the five pillars


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for monitoring on implementation ofdiversion. The agenda should include:

- Gauging the promotion and successof diversion especially for all first of-fenders;

- A review of data on community andpolice diversion, arrests and offences,ROR and bail and pre-trial detention,court cases, sentencing practice, espe-cially the proportion ofcommunity-based as opposed to cus-todial sentences, and custodyplacements and reintegration prac-tices;

- An analysis of the effects of diversionpolicy;

- An analysis of the trends in child of-fending;

- A review of the children’s justice pro-cess and whether this has beenreducing the number of serious CICLoffenders;

- Taking stock of a prevention of offend-ing strategy;

- How better to advocate principlesaround the “best interest” for CICL;

- A plan on how to improve diversionmethods; and

- The involvement of children, espe-cially CICL, in these processes.

References Cited:

Maxwell G., and Morris A. UnderstandingReoffending. Wellington: Victoria Univer-sity, 1999.


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........

......

.....

.....

Parents arecontacted

ANNEX: FLOWCHART OF THE JUVENILE JUSTICE PROCESS

Child is releasedwith warning/

made to rendercommunity

work.

(for first timeoffender, lightoffenses with

complainant orno complainant,

or when thecomplainant

refuses to file acase)

Info/advice(child andparents)


Police Prosecutor

PoliceInvestigation


Investigation atthe barangay

outpost

Filing ofcomplaint

Community(Diversion)

Preliminaryinvestigation/

inquest

Investigation atthe store/mall(conducted by

housedetectives)

Detained at CSfor safekeeping

Posting of bail/order of

commitment

Child isreleased after

lapse ofreglamentary

period

Child isreleased with

warning

Child isreleased with

warning

Case is settled(police, parents& complainant)

Case is settled(complainant

refused to file)

Referral to cityhospital for

medical check-up

Detained atpolice station


84

Referral topolice


85

Pre-trial

Trial

Decision

Sentence

Child isreleased –overserved

Child isreleased – case

dismissed

Suspension ofsentence

Court

Follow-up bysocial worker

Child isreleased

Social workerprepares

terminationreport

TerminationOrder

Transfer toRRCY or Balay

Detained priorto arraignment/

trial

Pre-trialDetention

Post-trialDetention

Rehabilitation(Suspended Sentence)

Child isreleased

CS Community Scouts

Seldom observed

Refers to Cebu City only;diversion at the Community Scouts

Detained(serving

sentence)

Arraignment

ReintegrationLegend:

Detained (whilewaiting transfer

to RRCY/Balay)

Released tocustody of

parents

Source:Etemadi, Ye and Bermudez (2002).

...........


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Save the Children UKPhilippines Programme

3/F FSS Building 1, 89 Scout Castor St.,Quezon City, Philippines

Telephone (+632) 372–3483 • Fax (+632) 372–3484www.savethechildren.org.uk

BREAKING RULES presents the consolidatedfindings of three researches commissioned bythe Save the Children–UK PhilippinesProgramme that looked into the profile ofchildren in conflict with the law, and theirsituation and experiences in the justiceadministration process in the three main urbancentres in the Philippines—Metro Manila, CebuCity and Davao City.

This consolidation research summarises themajor findings and recommendations of thethree studies. It also articulates its ownconclusions and recommendations based on thefindings of the three studies. The study alsodiscusses the concept of “restorative justice”and the more specific process called “diversion”as an alternative approach to handling cases ofchildren in conflict with the law.

Children in Conflict with the Law and the Juvenile Justice Process THE EXPERIENCE IN THE PHILIPPINES

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