SPECIAL REPORT

Children on Death Row and the Child-unfriendly Justice System
Third of four parts

by Mylene Buensuceso, Ronald Caraig, Likha Cuevas, and Jenielle Marie Enojo
Bulatlat

Life was just starting for the eight minors when they were incarcerated inside the New Bilibid Prison (NBP) in Muntinglupa City, 28 kms south of Manila. A DSWD Head Office report said they were sentenced to death.

Some legal experts said that it is unlawful to mete out death sentences to minors.

“They should not be there,” said Judge Nimfa Vilches, presiding judge of the Manila Regional Trial Court, Branch 48 (Family Court). She said that it is the mistake of the presiding RTC judges. “Pagkakamali ng mga courts yoon. Hinabla na nga yan sa Supreme Court. (The courts made a mistake. The judges were even charged in the Supreme Court.) The judges are not aware that the death penalty cannot be imposed on a minor. Kaya maraming nasa death row (This is why there are many minors on death row).”

On the other hand, the Children’s Legal Rights and Development Center, Inc. (CLRD) pointed out that the Revised Penal Code (RPC) states that children are exempt from criminal liability if they are below nine years old; or if they are above 9 but below 15 years old and have committed the alleged criminal act without discernment (Art. 12, Sec. 2-3).

If the child over 9 but younger than 15 years old is not exempted from liability (as stated in Art. 12) because s/he acted with discernment when s/he committed the crime, a discretionary penalty shall be imposed but it should always be by two degrees lower than what the prescribed for such crime. (See Tables 1 and 2). However, if the minor is over 15 years old but younger than 18, the penalty should be one degree lower than what the law has prescribed for his crime. (Art. 68, Sec. 1 and 2).

Based on penalties for minors under Art. 68 of the RPC, it would seem that a minor cannot be sentenced to death since their penalties are automatically lowered. However, laws are sometimes vague and are subject to many interpretations.

In Art. 47 of the RPC, only guilty persons more than 70 years old are exempted from the death penalty. The rest of the cases are decided by the lower courts with the Supreme Court (SC) reviewing the decisions automatically. It does not state directly that minors are exempt from death penalty.

Lawyers and human rights advocates said that the minors incarcerated in Bilibid may spend years inside prison before their cases could be reviewed. When their cases are finally reviewed by the SC, they may not be minors anymore. Their youth may therefore get wasted inside their cells.

Vilches said that the BJMP does not have the power to get these minors out of death row or even out of Bilibid and have the children transferred to youth homes. “Maski yung head nila wala siyang authority na maglipat. Yan ang problema namin dahil authority niyan nasa korte (Even the head does not have authority to transfer them. That is the problem because the authority is with the court).”

Two years ago, Vilches together with the Public Attorney’s Office (PAO), worked together to get these children out of death row. But it proved to be difficult. “Hihingi ka ng order sa court para mailipat from there. Paano ka hihingi ng order sa court kung iyan na nagbigay ng judgment na death penalty? (You would ask the court to transfer them. How would you request the very court that rendered judgement on the death penalty?)” she said.

Overloaded lawyers

Usually, these CICL come from poor families who cannot afford lawyers to represent them in court. The state provides its indigent citizens with lawyers from PAO. However, PAO lawyers handle several cases and they also get swamped with work. This is usually the reason why these lawyers could not concentrate on the CICL’s cases.

“That’s not an excuse but we recognize the gravity of the problem of overworked, underpaid, and overloaded public attorneys,” Dashell Yancha admitted. PAO lawyers only get to see their CICL clients when they are already in court.

One CICL interviewed in Parañaque City Jail initially said that he does not have a lawyer. In the course of the interview, he mentioned something about a “PAO person” who makes him sign documents after the hearing of his case. He did not know that the “PAO person” was his lawyer.

The 2004 study of Save the Children UK Philippines (SCUK-Phils) also found that most CICL do not understand what is going on at each stage of the justice process. The lawyers, so it seemed, did not explain to their clients what is happening and what will happen to them. The children interviewed for this report often say words like arraignment, preliminary investigation, dismissal but they could not define these words when asked to explain.

Dado (not his real name) said he cannot understand the hearings and the papers he signed because they were in English. Even if he was able to reach first year high school before he was jailed, his command of the English language was not enough for him to follow the proceedings of his case.

In an ideal world, these children should be well-represented in court. However, Vilches said that in the real world, PAO lawyers in Manila may have four different courts assigned to them. “(The children) don’t have a voice, they don’t have representation, they don’t have support persons, they don’t have proper legal aid,” Vilches said.

The courts and the CICL

To comply with provisions of the United Nations Convention on the Rights of Children (UN CRC), courts should implement release on recognizance (ROR). ROR is the release of the child to his family or responsible guardian pending trial and they would be accompanied to hearings until the case is resolved.

Vilches revealed that prosecutors do not agree with releasing a child on recognizance because most children on RORs do not come back for hearing, which contributes to backlogs because of their pending cases.  

According to Vilches, most fiscals object to carrying out RORs because of the custodian’s misunderstanding of the conditions of recognizance. “For the program to work,” Vilches explained, “custodians should understand their duty and they should be reminded that they could be arrested if they do not bring the children to court.”

She said, “The family court is a social delivery system. We are concerned with the well-being of the child. (We should be conscious of) our treatment when we are dealing with CICL. The judges are not there to punish the children and to set them as an example but rather judges should treat the child more humanely.”

The family court judge, according to Vilches, should observe the policy of parens patriae, i.e., when the parents and children cannot take care of themselves, the state, through the family court judge, should act as parent.

However, it seems that the establishment of family courts and child-sensitive judges are not enough to help CICL. Lawyer Eric Henry Joseph Mallonga said that the children who are presented in court feel traumatized by the experience. “The mere presence of the judge in robes would make the child feel that he is indeed a criminal,” he said.

He pointed out that however child-sensitive the court is, the child would still feel that he is a very bad person. The court set-up, the atmosphere, and the presence of other people in the room are enough to make him feel terrified. This is evident especially when he is grilled with questions and the inquisition is not at a level where he could easily articulate his thoughts. Bulatlat