Children Prisoners in the Philippines: An International Human Rights Law Analysis

(This forms part of the publication titled KIDS BEHIND BARS - A study on children in conflict with the law: towards investing in prevention, stopping incarceration and meeting international standards edited by Stan Meuwese and published in Amsterdam.)The Philippines is a state party to a host of international human rights treaties, especially those concerning children, notably the Convention on the Rights of the Child (CRC), which entered into force on 2 September 1990, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.The 1987 Philippine Constitution accords special protection to children and youth. Its Bill of Rights provides for the basic constitutional rights of persons, including children, under arrest and during trial. This includes the right to a speedy, impartial and public trial, to confront the witnesses against them and to adduce their own evidence. Like any other person, children during custodial investigation are entitled to be informed of their right to remain silent and to a competent and independent counsel preferably of their own choice. The Constitution proscribes the use of torture, force, violence, threat, intimidation or any other means that vitiates the free will. It also prohibits the admission in evidence of any confession or admission obtained in violation of the said rights. During trial, children are entitled to be presumed innocent until the contrary is proven beyond reasonable doubt. Children also have the right against self-incrimination and to confront witnesses against them as well as to a compulsory process to secure the attendance of witnesses and the production of evidence in their favour.Several domestic laws have incorporated into Philippine municipal law the basic provisions of the CRC. The Philippine Congress has passed the Family Courts Act of 1997 (Republic Act 8369) with express reference to the provisions of the CRC. Recently, the Philippine Supreme Court issued the 2002 Rule on Juveniles in Conflict with the Law pursuant to the provision of the Family Courts Act. The Rule on Juveniles mandates the adoption of the principle of restorative justice as the broad policy framework in dealing with children in conflict with the law. The establishment of the Philippine Judicial Academy, which trains judges, is a big factor towards the introduction and popularisation of new child laws among judges of family courts.However, a wide gap exists between law and reality. While recent policy developments prove promising for children in conflict with the law, the traditionally punitive approach of the criminal justice system virtually negates these advancements. For example, the recently enacted Comprehensive Drugs Act of 2002 (Republic Act 9165) does not expressly grant children arrested and convicted for the crime of drug trafficking the benefits of a suspended sentence, thereby putting children in an equal status with adults in this respect. This law penalizes drug traffickers with the penalty of life imprisonment to death. It is debatable whether the privileged mitigating circumstance of minority is applicable to children convicted for drug trafficking considering that RA 9165 is a special law.A growing number of children are being arrested, detained, and tried for drug trafficking. The Child and Youth Welfare Code, the Family Courts Act of 1997, and the 2002 Rule on Juveniles in Conflict with the Law expressly exclude children found guilty of having committed capital offences (those punishable by life imprisonment to death) from availing of the benefits of a suspended sentence. A Philippine Supreme Court ruling held that while children so charged are entitled to the privileged mitigating circumstance of minority, they are not entitled to avail of the benefits of a suspended sentence if convicted.The approach still remains to be largely punitive. In general, though, like other prisoners, children may eventually avail of parole or executive clemency, in case they were lucky enough for their case to be looked into.Prosecutors, public defenders, and judges share the prejudice society has against detained prisoners. The social stigma attached to detention contributes to the prolonged detention of children. The insensitivity of judicial players to the special circumstances of children in jail contributes to the neglect of their cases.The point of arrest is critical. It is at this stage where some children suffer torture in the hands of the police as a form of punishment or as a way of exacting confession. Others receive blows in the hands of local guardsmen and/or their fellow inmates. Since the processing of court orders for the commitment of these children to detention facilities take quite a while, the time lapse allows for the healing of children’s wounds sustained on account of police brutality.