This story
was taken from Bulatlat, the Philippines's alternative weekly
newsmagazine (www.bulatlat.com, www.bulatlat.net, www.bulatlat.org).
Vol. V, No. 36, October 16-22, 2005
Children on Death Row and the Child-unfriendly Justice
System
by Mylene Buensuceso,
Ronald Caraig, Likha Cuevas, and Jenielle Marie Enojo 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
Doing
Time in the Company of Hardened Criminals
Slow
Justice for Detained Children © 2005 Bulatlat
■
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