Are biennial flagship publication from CIDCM) there is

Are children in conflict with the law oppressed by the Filipino juvenile
justice system?

Is the oppressive relationship between children in conflict with the law
and the Filipino juvenile justice system symptomatic of the failings of state
security provision?

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Introduction

                The
purpose of this dissertation is to conceptualise the protracted intra-state
conflict of the Philippines from a child-sensitive perspective. Further, it may
contribute to an under researched topic (which is??) within conflict studies
(and indeed other fields that overlap, such as international relations, law or
cultural anthropology). Its purpose is both analytical and normative; it may be
useful for Filipino policy-makers, operating charities and
international/non-government organisations in the Philippines.  Extensive collation of material from primary
sources to secondary scholarly sources.

A conceptualisation of the conflictual relationship
between juvenile justice and children in conflict with the law in the
Philippines is underwhelming under researched. This paper is intended to
provide a starting point to filling this gap, and help to understand whether or
not the juvenile justice system has failed children. In this sense, a broader
yet important question this paper proposes is whether or not emancipating children
from oppressive juvenile justice relationships contributes to the alleviation
of the national protracted intra-state conflict.

Literature Review

Identifying a gap in recent quantitative research
of Filipino street children in conflict with the law or in the system. In the 2014 issue (2014 Peace and Conflict biennial
flagship publication from CIDCM) there is a special focus on the hitherto often
neglected micro-level study of conflict and peacebuilding data, not only from
within states but right down to local level.1

 

                A
comprehensive analysis on the minimum age of criminal responsibility (MACR)
would require an entirely other paper, however this paper does address the issues
facing children who fall below the MACR. As Cipriani astutely notes, whilst it
garners much controversy it is not the most pressing challenge in either the
juvenile justice system nor in children’s rights (Cipriani, p xvi). Thus the
importance of a specific MACR becomes a significant turning point within the wider
framework of national operations to effectuate ‘juvenile justice and children
protection systems that fully respect child rights’2.
Especially considering the social construction of childhood informs the
culturally acceptable MACR as opposed to the children themselves3,
invariably differing across countries depending on historical, cultural, social,
political and other factors.

In brief, the United Nations recommends the very minimum
age of criminal responsibility (MACR) be age 12 (insert reference); the United
Nations Convention on the Rights of the Child (CRC) urges member states (under
article 43) to set a minimum age at which a child is believed to possess a
minimum level of discernment to know the crime committed is wrong (CRC Art.
40(3) under (a)). Below the established age, a child is not liable to face
criminal responsibility or prosecution of any kind. In theory and practice, this
concept is highly complex and the controversial debate continues over what the
MACR should be. Further than this, the fundamental disagreement is over the objective
of the MACR (Cipriani, 2009, foreword lol) – beyond different views, what it should
accomplish varies from actor to actor.4

Under the Revised Penal Code (wait this was for the
original 9 years age ne, don’t know what the 15 years old one is from) the
Philippines current MACR is 15 years old5,
and since being introduced in 2006 has been just one of 19 countries with an
MACR of 15 and above6.
Since Rodrigo Duterte’s 2016 inauguration, the government’s stance on crime and
the justice system has veered conceptually right. Insert statistics about his
government. It’s important to frame this debate within the wider international
context to realise the Philippines would not be the first or last to penalise
children in the justice system – in Britain, the MACR is 10 years old, with
this legislation having been institutionalised through colonialism to countries
such as Australia, South Africa, New Zealand and India. In India the MACR is
just 7 years old. In the USA although the national age is 11 for federal
crimes, just 15 of the 50 states have even set a MACR7
where the majority of crimes are dealt with at the state level.

Problems: supporters of the bill say it would stop adult criminals recruiting
children under the age of criminal responsibility for drug-trafficking, however
human rights advocates counter that there is no evidence that this would reduce
crime. Leo Ratledge of Child Rights International Network (a British charity) says
it would punish victims of exploitation rather than those who exploit them. From
the economist article

Whilst not the greatest issue facing children, it
is a symptom of the government’s failure to protect children when coupled with adult-oriented
processes within the juvenile justice system, extremely congested courts
resulting in slow processing, the detention of children with adults, and noting
abuses whist in detention. Further, the issue directly relates to one of the
most urgent threats facing children in the Philippines in recent history;
extrajudicial killings through vigilante ‘justice’ advocated by the president. Whilst
courts dismiss MACRs to deprive children of their liberty —, Cipriani remarks
that extrajudicial actions, alongside private vigilante justice, is targeted
against children when the pubic consensus of ineffective legal responses arise8.
This conceptualisation can be applied to the Philippines with the extrajudicial
killings of those assumed to be associated with drugs since Duterte’s
presidency. In particular, children who fall below the national MACR face a greater
risk due to the absence of a substantive ‘response’ to acts that under adult
law would be deemed illegal, which drive dissatisfaction with children’s
culpability. (Needs further analysis: This can be tied into PSC through –). Applying
Cipriani’s theoretical/conceptual thread to the Philippine government, the
juvenile justice system has not maintained an appropriate, nor credible,
response to children in conflict with the law – especially below the age of the
national MACR. This is clear in the examination of the system’s failings. This
therefore offers an explanation as to why the proposed decrease in MACR has had
political support.

Violence in juvenile justice

Recriminalising delinquency

Detention of children pending trial is still
prevalent. As of September 2012,458 children, 21 of which were female, were
detained in Bureau of Jail Management and Penology (BJMP) Jails while their
cases are pending.9
The average litigation time of criminal cases is 2 years 9 months and 22 days,
but a survey in 2008 would place the average disposition of cases of inmates
from 5 to 6 years.10
This kind of implementation runs against the ‘best interest of the child’ as it
violates all the rights that are enumerated in the Convention on the Rights of
the Child. The Supreme Court issued a five year programme to hasten the
judicial process as a result of the widely acknowledged slow, corrupted and
inefficient judiciary11.
In congested jail, survival rights are at risk. In a jail where inmates have
nothing to do but sit, development rights are arrested. In a jail where liberty
is constrained, participation rights are at risk. And in a place where children
share a facility with adults for a long period of time, protection rights are
violated.12

Detention of children with adults

Arbitrary detention

Abuses whilst in detention

Adding to the picture that children are frequently
tried as adults is that although juvenile justice cases are under the
jurisdiction of a specialized Family Courts and there are specific rules on
children in conflict with the law, the reality is, the setting and most of the
procedures are adult-oriented.13

 

 

The juvenile justice system/relationship between
CICL and juvenile justice can be used as an expression of the disarticulation
between the state and society as a whole as espoused by Azar. The power exerted
over the identity group is a microcosm of the power of the state over the
Filipino population.

Failings of the State

                In
establishing whether or not the failings of the juvenile justice system is
isolated and the problems separate from the state, the state should be examined
within its traditional role as the primary agent of child security provision.
The key referent of security, in keeping with the Westphalian notion that the
relationship between the individual and the state is fixed, is the state
itself. The questions explored here are whether or not the Philippines can be
categorised as a failed or weak state, and subsequently whether the juvenile
justice system is a symptom of this. By extension of the state, where the
central actor is typically the government, the judiciary represents an essential
feature of the state. Wait, law and order
are also features of democracy, mention that we are not debating whether this
is a democracy here or not.

                In
liberal theory as espoused in the West, individuals constitute a state whose neutral
position arbitrates intra-state conflicts to govern successfully. Trends in
newer and/or more unstable states tend to contradict this expectation where, according
to Azar, political authority is “monopolised by the dominant identity group of
a coalition of hegemonic groups”14.
The state then becomes a tool to exploit for personal gain, at the detriment of
marginalised identity groups. These identities can be created through shared
ethnicity, religion, class15
etc. In light of a globalised world where personal beliefs are regularly
challenged and national identity wains, perhaps a contemporary addition to the binding
commonality may simply be the sense of belonging to a social group – a street
children gang, a barangay. The dominant individuals limit fair access to
political institutions whilst communal groups likely break into violent
conflict for basic needs like recognition, acceptance, security, economic
participation (1991:93)16.
Through the ruling elite’s monopolisation of power expedites a “crisis of
legitimacy, so that ‘regime type and the level of legitimacy’ come to be seen
as ‘important linkage variable between needs and protracted social conflict’.

This can be interpreted for the Philippines as the
state, being the key referent of power and security, exerting dominance over
the individual (majority of the identity groups). This can be interpreted in
the context of the Philippines as the * people in positions of power within the
juvenile justice system being the dominant identity group who monopolises
control of the multi communal society of the Philippines.

                Being
what Mary Kaldor would have referred to as a ‘new war’, a protracted intra-state
conflict plagues the Philippines. This very categorisation of war was
conceptualised first in international relations literature by theorist Edward
Azar in 1986 or 1990. His model is comprehensive and often overlooked in
contemporary literature, as highlighted by Oliver Ramsbotham in his 2005–. Highlighting
arguably the most significant parallel between both theories, the intrinsic
factor in intra state conflict is a crisis of identity, inherently linking the relationship
between the deprivation of human needs17
and the state to be at the heart of conflict18.
This contrasts to the levels of analysis approach promulgated by Kenneth Waltz
(1959)

Where the two theories split theoretical hairs is
that Kaldor connects intra-state conflict to the weakness of the state to
provide security in an era of globalisation (199: 319),
whilst Azar elaborates on the state’s inability through centralisation of the
root causes into the four aforementioned clusters (or in appendices) in
relation to identity groups. (PLUS the frustration of needs) In some ways, Azar
is a comprehensive extension of Kaldor’s work (despite predating it). However,
Azar’s work was published several decades before the eruption of literature on
globalisation (is that true?).

“Many conflicts currently active in the
underdeveloped parts of the world are characterised by a blurred demarcation
between internal and external sources and actors. Moreover, there are multiple
causal factors and dynamics, reflected in changing goals, actors and targets.
Finally, these conflicts do not show clear starting and terminating points.”
(Azar, 1990:6)

Azar links the disjunction between state and society in many parts of
the world to a colonial legacy which artificially imposed European ideas of
territorial statehood onto ‘a multitude of communal groups’ on the principle of
‘divide and rule’. This is evident when looking at the
heritage of Filipino judiciary; the Spanish provided the template for the first
Penal Code in 1887, in the early 20th century the essential aspects
of judiciary were adopted from American practice (including statutes regulating
trade and commerce, tax, banking and currency, labour relations, and government
operations). This colonial legacy has long been entrenched, as is evident by
the fact that most official notices, laws, and court decisions, are issued in
English. ‘The basis of the legal code is primarily Spanish and Anglo-American
law’. The Spanish-American War led to the American occupation of the
Philippines in the late 1890s, subsequently with significant changes in the
nation’s governance.

Somewhere in the middle of these two theories may be common ground enough
to inform policy makers. Is the placement of the state or the individual as a
key referent even relevant to the oppression and abuse CICL face?

 

Conclusion

Characterising the intra-state conflict of the
Philippines through analysis of the oppressive relationship between children in
conflict with the law and juvenile justice.