SPEECH OF SEN. FRANCIS N. PANGILINAN ON RESTORATIVE JUSTICE and DIVERSION: THE CASE OF THE JUVENILE JUSTICE and WELFARE ACT

Magandang hapon po sa kanilang lahat. Thank you for inviting me to the 3rd National Family Courts Summit. This afternoon's discussion is centered on the Juvenile Justice and Welfare Act in the Philippines, also called -- sometimes with contempt -- as the Pangilinan Law.

This law, Republic Act 9344, as amended, sadly has been misunderstood by many in the public. It has been criticized for allowing children guilty of crime to go scot-free when it does the opposite; it makes them accountable for their actions -- only, in ways that match their age. Many politicize and criticize the law, further perpetuating wrong information and false assumptions regarding the said law.

With the law either not completely or fully implemented or wrongly implemented, children in conflict with the law continue to suffer. Many of them are abused, detained in facilities with subhuman conditions, experiencing violence in detention and being branded as criminals because this issue is muddled to misinform.

In fact if I'm not mistaken, just the other week, I read an article wherein a 16-year-old who committed an offense was sent home because the law according to the report says that minors should be sent home if they commit offenses, obviously a mistake.

Children will make mistakes but they need to be disciplined in a child-appropriate process and that's precisely the spirit and the intent of the Juvenile Justice and Welfare Law.

I have four children: Frankie, Miel, KC, and Miguel. KC of course is already 32, Frankie is 16, Miel is 12, and our little boy Miguel is 7.

Children will make mistakes. I remember bringing my son to school when he was six years old. After one week of going to school every day, that was his first week and so I checked on him, and as I brought him to school in the morning, I reminded him: Are you listening and obeying, Miguel? Do you listen to your teacher? Do you obey your teacher? And he said: Yes, Daddy. I'm always saying I'm sorry. Obviously his concept of obedience at that age, iba ho.

Fankie and Miel, when they were younger, minsang hanggang sa ngayon parang aso't pusa, nag-aaway, nagtatampuhan. Just the other day, I had to referee the two. But I remember several years back, when they were, I think, 8 and 5 or 8 and 6, they were into each other's' nerves. It was noisy, they were shouting at each other. Obviously they were not being disciplined. They were misbehaving. And so they had to go through my version of a diversion program.

They were grounded and the grounding was simple: The whole day today, you Frankie and you Miel will do everything together. You will eat together, you will play together, if there is siesta, you will siesta together and you will be in the same room wherever you are. You cannot be separated the whole day because I want you to learn to get along. A couple of hours later, they were laughing and joking on another. So they were grounded, they were disciplined, but they were disciplined in a child-appropriate process. So kahit sa bahay po namin, mayroon pong Juvenile Justice Law in effect. So ganito po ang ating concern about our children.

Of course we don't let wrongdoings slide. Children need to be disciplined, and in a manner that is age-appropriate process. Children are prone to making mistakes. They do not yet have a solid understanding of right or wrong, or a clear foresight of the consequences of their actions.

It is of course our responsibility as adults and as a community to provide them with guidance and an environment where they can grow and realize their full potential. These are precisely the reasons why the law was put into place.

From 2006 when the law was enacted to 2010, however, clearly, the formative years, if there is such a thing, at least sa children, formative years 'yung first six, seven years, for the Juvenile Justice and Welfare Law, the first four years were critical years but challenging years.

From 2006 to 2010, the record will show that of the 250 million pesos that should have been allocated for the law, less than 50 million actually was allocated. Napakaliit for a law that was national in scope. During those four years until 2010, the Juvenile Justice and Welfare Council only had seven full-time employees. It did not have its own office for four years. It was squatting at the Department of Justice, and you will ask why in the Department of Justice, that was another problem with the law that we had to amend in 2010. The law in 2006 provided that the Juvenile Justice and Welfare Council will be attached to the Department of Justice but headed by an undersecretary of social welfare and development. So obviously, it was schizophrenic. And that, we corrected in 2010 when we amended the law. Today, if I'm not mistaken, the Juvenile Justice and Welfare Council has a staff of over 60, so pretty much a long way from seven. Today, it is no longer an attached agency of the Department of Justice. It is now an attached agency under the Department of Social Welfare and Development. Today, there are regional Juvenile Justice and Welfare Councils, whereas before, there were none. So we have marked improvements in the law, but there are still challenges.

What is the Juvenile Justice and Welfare Act? Basically, the law says children who commit offenses must be held into account in a child-appropriate process. They do not go scot-free obviously, as has been the mantra of some to condemn or criticize the law. Of course, children in a child-appropriate process should not be detained with hardened criminals. It adheres to restorative justice; rehabilitation rather than retribution. Of course there is more to the law. The two significant principles of the law are: (1) Treat children as children, adolescents as adolescents. (2)And it takes a village or a community to raise a child.

Under the first principle, the law provided for age-appropriate proceedings and disposition measures.

We look to science for the rationale. According to the Psychological Association of the Philippines, scientific research on adolescent development and juvenile delinquency shows that children and adolescents differ significantly from adults.

Although they may be able to discern right from wrong, they are incapable to act in ways consistent with that knowledge. Why? Because at this stage, the adolescent brain is still developing and does not fully form until young adulthood.

A recent study suggests that the brain of a human being is fully developed at 20 years old.

Let us all try to remember how we were as teenagers. Weren't we a little more adventurous then than now? And the psychologists again have the answer why this is so: The cognitive abilities of early and middle adolescents (ages 12 to 16) are still developing and their life experiences are still limited. This makes them especially vulnerable to risky and reckless behavior.

Unlike adults, adolescents are less able to consider the long-term consequences of their actions; they are less concerned about risk, and more concerned about rewards; they are more vulnerable to coercive circumstances. And they are unlikely and unable to assert their own decisions and extricate themselves from crime-prone settings.

Also in a briefing during the crafting of the law, the Philippine National Police candidly admitted that children in conflict with the law are often used and abused by adults, including people in authority like rogue policemen and corrupt barangay officials, to engage in criminal activities. They are very, very vulnerable. In such situations, children are powerless. They fear retribution, do not have or are not aware of alternative actions, or they look up to or are emotionally attached to these criminal proponents.

Sabi po nung iba, ngayon daw dahil sa batas na ito, ay lumalakas na ang loob ng mga menor de edad na gumawa ng krimen. But the data will show that behind children in conflict with the law involved for example, the hamog boys or the bukas kotse gang, are syndicates.

Hindi ho malakas ang loob ng bata dahil sa batas na ito. Lumalakas ang loob ng mga pariwarang bata dahil mayroon silang mga backer na mga sindikato of adults who prey and take advantage of their vulnerability as children.

Also, unlike adults, adolescents are more susceptible to peer pressure because at this stage, they desire for approval and belonging. Peers and adults serve as models of behavior. Peer pressure is a major factor why juvenile crimes tend to happen in groups or gangs.

Sabi nga po nila, dahil ginagamit daw ng sindikato ang mga bata, kaya dapat amyendahan ang batas, Juvenile Justice and Welfare Law, para maparusahan ang mga bata. Eh ginagamit ng sindikato, bakit hindi habulin 'yung sindikato. Dahil 'pag hinuli na ang sindikato wala nang gagamit dun sa mga bata. Ang tanong ko, baka ang kaya lang nila ay bata. Ayaw ko namang isipin, eh baka kasi either kasabwat sila dun sa sindikato, o hindi kaya eh kabaro nila at mahirap banggain ang kabaro nilang sindikato. Madaling banggain as usual the marginalized, the powerless and in this case, the child in conflict with the law.

When a child offender is exposed to the criminal justice system, where he or she is labeled a criminal, where he or she is exposed to criminal models, and where he or she is more likely to be abused and tortured, the child offender is more likely to establish a"criminal identity". Subsequently, this leads to more and violent crimes.

PNP stats show however that less than 2% of offenses committed or crimes committed under our criminal laws are committed by minors. 98-point-plus percent are committed by adults and this is precisely a question: Why are we so hung on going against children up to nine years old when less than 2% of the crimes are committed by them.

The second principle under the law is: It takes a village to raise a child. With this, the law provided for the creation of local councils for the protection of children, I don't have the data now but I assume that many of these councils are not functional or have not been created. This is a challenge.

All of us would agree, who wants our children to be taken cared of by government? No one would raise his or her hand because it's not government's responsibility to take care of children. It is the parents', it is the family, and at most the extended family, the community.

So we have to have community participation and involvement. The local councils for the protection of children was envisioned to be a group composed of citizens, personalities, organizations, community, Rotary, Kiwanis, Catholic Women's League, NGOs coming together and deciding, providing inputs for how children in conflict with the law maybe cared for and the issue addressed in their communities. Apart from the creation of the councils for the protection of children, the comprehensive juvenile intervention programs, community-based programs on juvenile justice and welfare, and community diversion programs. All these are meant to make children in conflict with the law accountable for their action while ensuring their rehabilitation to become useful, responsible citizens of the country.

How have we done so far? In 2014, UNICEF commissioned an evaluation to assess these programs involving 15 facilities These are the Regional Rehabilitation and Youth Centers, Bahay Pag-Asa.

The good news is: Most facilities provide an enabling environment for rehabilitation. There, most youth offenders were able to continue their formal schooling. Some were able to attend vocational training programs. And the residential programs were able to reshape their behavior through various spiritual, value-formation, and recreational activities.

I remember one case, he was here in Manila, he was 14 years old, he was a leader of a gang, and he was involved also in the use of drugs. If the law was not in place, clearly he would have been brought to the city jail, clearly they would have filed criminal cases against him and obviously, that would have condemned him for life, as a rule. But this boy, because of the law, went through a diversion program with the ERDA Foundation. He was given the necessary skills. So from being a gang leader, he is now a sales assistant in one of the convenience stores here in Manila; a new life, ika nga.

There is another case, acts of lasciviousness, a child 16 years old, when you read the case, girlfriend niya, nagkaroon siya ng relasyon, nagalit 'yung ama nung batang babae, kinasuhan ng criminal case, etc. acts of lasciviousness. If this law was not in place, he would have been tried in our regular criminal courts and obviously makukulong, city jail ulit, etc. but because of this law, he was able to go through a diversion program, he was confined and went through rehabilitation/involuntary confinement, went through training, ended up going through a course on marine/seafaring. Today, he is now a seaman. He is now providing/sending money to his parents. He would not been such without this law. Therefore this is precisely giving our young people a second chance because we all make mistakes. All of us make mistakes when we were growing up. All of us would say those mistakes don't define us or should not have defined us and that's why we are where we are today.

However, the evaluators found interconnected gaps related to the legal system: delayed court proceedings due to lack of judges that specialize in these cases resulting in alleged widespread practice of pre-trial detention of children instead of rehabilitation and diversion.

The gap in budget may also see the end of community-based and NGO-run programs, as few LGUs comply with the provision of the law allocating at least 1% of the barangay's IRA (or the internal revenue allotment) for these programs.

The UNICEF-commissioned study thus recommended: Fully implement and adequately comply with the law and its 2013 amendment, including the allocation of sufficient funds and competent people. Things have developed and progressed, have become a little better than before in terms of the implementation of this law. In Davao region for example, when this law was passed, there was only one rehabilitation center for the youth offenders. Today, there are five.

The law, in 2013 when in was amended, provided for additional close to half a billion pesos worth of funds for infrastructure building and rehabilitation centers. At the same time we must continue to close the gap between what the law provides and how the law is understood and implemented by government officials particularly the local government and also how it is understood and reported by the mass media.

The truth is, more than half of the crimes committed by youthful offenders are crimes against property. And close to 90% of these offenders are actually first time offenders. Minsan lang nagkamali, kaya napakahalaga na tinututukan po natin. The recidivists, the incorrigible youth, would be around 10% of the cases yet that 10% seems to be the poster boy for the Juvenile Justice and Welfare Council. They don't talk about the 90% or the first time offenders; they're talking about those who committed serious offenses. So we have to also explain and be able to connect and communicate.

I come from a big family. Nine children po kami. Ako po 'yung pang-lima. So middle-child po ako. Apat ang nauna, apat ang sumunod. Sabi nila 'pag nasa gitna, marunong bumalanse. Alam ko po ang mga kapatid ko, ako ho sabi ng nanay ko hindi daw ako kasing kulit nung mga kapatid kong lalaki, mabait daw ako. Ewan ko kung totoo. Pero ang mga bata, mausisa, maraming tanong, makulit, naughty. Different personalities, different wants, different needs, different levels of understanding.

With the law not yet fully implemented, we are actually alarmed that there are proposals still to lower the age of criminal liability to nine years old. Hindi ho kami sang-ayon po rito. At least sa Senado, wala hong ganung klaseng proposal.

For standing firm with children in conflict with the law, and with the law that keeps them away from adult detention centers, we have been criticized repeatedly. Somebody said that the law is the stupid 'Pangilinan law' but that's okay because I know that many young people have benefitted from this law. Many have been able to turn a new leaf. Many have better futures precisely because this law is in place. So let the critics say what they want. We have a law that has provided our people with the opportunity to move away from wrongdoing. Let us give young people who have gone astray this opportunity. Let us allow them to start anew. Let us all do our part to properly implement the Juvenile Justice and Welfare Act, as amended.

Let us, as a village, do what's right for our children.

Magandang hapon po sa kanilang lahat. Maraming salamat.

Source: Senate of the Philippines

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