Juvenile Justice and Welfare Act (Q&A)

Juvenile Justice and Welfare Act (RA 9344 as amended by RA 10630)

Q&A

Submitted by Jose Parcon

to the PUP Office of the Legal Aid

Q: What is Juvenile Justice and Welfare System?

A: Under RA 9344, it is a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, reintegration and aftercare to ensure their normal growth and development. (Sec. 1. RA 9344)

Q: Who are those children considered at risk, and who are those children considered as in conflict with the law?

A:

1)   “Child at risk” refers to a child who is vulnerable to and at the risk of committing criminal offenses because of personal, family and social circumstances. (Sec. 4(d), RA 9344)

2)   “Child in conflict with the law” refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. (Sec. 4(e), RA 9344)

Q: To what age does the word “child” refer to under the Juvenile Justice and Welfare Act (RA 9344)?

A: Child refers to a person under the age of eighteen (18) years. (Sec. 4(c), RA 9344)

Q: Who are deemed to be law enforcement officers under the Juvenile Justice and Welfare Act?

A:  Under Sec. 4(n) of Juvenile Justice and Welfare Act, “Law Enforcement Officer” refers to the person in authority or his/her agent as defined in Article 152 of the Revised Penal Code, including a barangay tanod.

Q: What is the special procedure for taking the child into custody as mandated by RA 9344?

A: Under Sec. 21 of the Act, the following are the procedures for taking child into custody:

1)   From the moment the child is taken into custody, the law enforcement officer shall immediately notify the child’s parents/guardians, the local social welfare and development officer (LSWDO), and the Public Attorney’s Office of the child’s apprehension, not later than eight (8) hours after apprehension.

2)   After explaining to the child in simple language and in a language or dialect that he/she can understand the reason for placing the child under custody, the offense that he/she allegedly committed, and his/her constitutional rights, the law enforcement officer shall immediately start the determination of the age of the child and take the child immediately to the proper medical and health officer for a thorough physical and mental examination and thereafter turn over the custody of the child to the local social welfare and development officer (LSWDO) or other accredited non-government organizations immediately but not later than eight (8) hours.

3)   A child in conflict with the law shall only be searched by a law enforcement officer of the same gender.

  

   4) The law enforcement officer, specifically from the Women and Children   Protection Desk where present, shall take the statement of the child during the initial investigation in the presence of the child’s counsel of choice or in the absence thereof, a lawyer from the Public Attorney’s Office, his parents, guardian, or nearest relative, as the case may be; and the local social welfare and development officer. In the absence of the child’s parents, guardian, or nearest relative, and of the LSWDO, the investigation shall be conducted in the presence of a representative of an NGO or faith-based group, or a member of the BCPC.

Q: In taking the statement of the child, what are the guidelines that should be followed by the law enforcement officer?

A:

    1. The investigation shall be child friendly and be conducted in a non-intimidating manner.

2. The interview of the child shall be conducted in a separate interview room to make the child feel comfortable and free to express him/herself.

3. The law enforcement officer shall use simple and understandable language in taking the statement of the child during the initial investigation.

4. The law enforcement officer shall allow the LSWDO, or the persons taking his/her place as above enumerated, to actively assist in conducting the initial investigation.

5. There should be enough privacy to avoid unnecessary interruptions, distractions and/or participation from non-parties that could humiliate or make the child uncomfortable.

6. The written statement to be prepared shall reflect the language used by the child and not the language used by the law enforcement officer.

The initial investigation shall be conducted in the best interest of the child and in a manner that allows the child to participate and to express him/herself freely.

The law enforcement officer conducting the initial investigation shall ensure that all statements signed or thumb marked by the child during investigation shall be witnessed by the child’s parents or guardian, the LSWDO, or if not present, any other social worker, or counsel in attendance, who shall affix his/her signature to the said statement.

Q: If the child who is fifteen (15) years of age but below eighteen (18) acted with discernment, what will the law enforcement officer do?

A: After the initial investigation, in case of a child who is above fifteen (15) years of age but below eighteen (18) years of age, the law enforcement officer shall refer the records of the child to the LSWDO for an assessment if the child acted with discernment.

Q: If the child who is fifteen (15) years of age but below eighteen (18) acted without discernment, what will the law enforcement officer do?

A: After the initial investigation, the law enforcement officer shall refer the case of the child to the LSWDO for INTERVENTION in accordance if the child is 15 years old or below or above 15 but below 18 years of age and acted without discernment.

Q: What is INTERVENTION in RA 9344?

A: Intervention refers to a series of activities, which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program, which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psychosocial well-being.

Q: What is DIVERSION in RA 9344?

A: Diversion refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings.

 Diversion is required if the child is above 15 but below 18 years of age and acted with discernment and the offense committed carries an imposable penalty of not more than six (6) years of imprisonment.

Q: What if the child above fifteen (15) years of age but below eighteen (18), and acted with discernment and the offense committed carries an imposable penalty of more than six (6) years of imprisonment, what will the law enforcement officer do?

A: After initial investigation, the record of the case shall be referred the prosecutor or judge if the child is above fifteen (15) but below 18 years of age and acted with discernment and the offense committed carries an imposable penalty of more than six (6) years of imprisonment.

Q: After apprehension and initial investigation, what does RA 9344 requires upon the law enforcement officers?

A: In all cases, the law enforcement officer shall turn over the physical custody of the child to the LSWDO within eight (8) hours from apprehension, as required under Section 21(i) of R.A. No. 9344, even if the law enforcement officer has not yet exhausted all measures to determine the age of the child and even if the initial investigation has not yet been terminated.

Q: In the event a child whose custody is turned over by the law enforcement officer is 15 years old or below, what should the LSWDO do?

A: In the event a child whose custody is turned over by the law enforcement officer is 15 years old or below, the LSWDO shall take all measures to release the child to the parents or guardians, or to any of the persons or organizations authorized by R.A. No. 9344, and proceed with the development of appropriate programs as provided by the said law.

Q: What are the prohibited acts when the child is under custody?

A: The prohibited acts when in custody of child are:

1. A child in conflict with the law shall not be locked up in a detention cell.

2. The child shall not be detained in the provincial, city or municipal jail, even if there are quarters separate from adult detainees.

3. A child in conflict with the law shall not be searched by a law enforcement officer of the opposite sex.

4. The law enforcement officer having custody of the child shall refrain from using vulgar or profane words and from sexually harassing or abusing, or making sexual advances on the child in conflict with the law.

5. If handcuffs or other instruments of restraint are used on the child, the law enforcement officer shall record such fact in the report on the initial investigation, and the reason for the use of such instruments of restraint.

6. The law enforcement officer from the time of initial contact with the child shall avoid displaying or using any firearm, weapon, handcuffs or other instruments of force or restraint, unless absolutely necessary and only after all other methods of control have been exhausted and have failed.

7. The law enforcement officer shall avoid the use of violence or unnecessary force on the child in conflict with the law.

Q: Under RA No. 9344 (Juvenile Justice and Welfare Act), who are exempt from criminal liability?

A: As to the matter of criminal responsibility, pursuant to Section 6 of R.A. No.9344, the following shall be exempt from criminal liability:

1. A child 15 years of age or under at the time of the commission of the offense;

2. A child above 15 years but below 18 years of age who acted without discernment at the time of the commission of the offense.

The exemption from criminal liability of children under the law does not include exemption from civil liability, which shall be enforced in accordance with existing laws.

Q: What is the “presumption of minority” rule?

A: The “presumption of minority” rule under Sec. 7 of R.A. No. 9344 provides that the child in conflict with the law “shall enjoy the presumption of minority” and “all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older”.

Q: What is the remedy if an interested party is contesting the age of the child in conflict with the law?

A: Sec. 7 of R.A. No. 9344 gives “any person contesting the age of the child in conflict with the law prior to the filing of the information in any appropriate court (the right) to file a case in a summary proceeding for the determination of age before the Family Court which shall decide the case within twenty four (24) hours from receipt of the appropriate pleadings of all interested parties”. If a case has been filed against the child in conflict with the law and is pending in the appropriate court, “the person shall file a motion to determine the age of the child in the same court where the case is pending”. Meanwhile, the proceedings on the main case shall be suspended. In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned shall exert all efforts at determining the age of the child in conflict with the law.

Q: What is the duty of the law enforcement officer when it has been the determined that the child taken into custody is fifteen (15) years old or below?

A: Sec. 20 of R.A. 9344 provides that if it has been determined that the child taken into custody is 15 years old or below, the authority which will have initial contact with the child has the duty to “immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child’s nearest relative” and “notify the LSWDO for the determination of appropriate intervention and prevention programs for the child”.

Q: If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody of the child, what shall the law enforcement officer do:

A: Under Rule 31.b of the IRR, if the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody of the child, the child may be released by the authority having initial contact with the child to any of the following:

(1) A duly registered non-governmental organization, i.e., duly licensed and accredited by the DSWD;

(2) A faith-based organization;

(3) A barangay official;

(4) A member of the BCPC;

(5) An LSWDO; or

(6) The DSWD when and where appropriate.

Q: When will the DIVERSION program be conducted at the BARANGAY LEVEL?

A: Under Rule 42, as provided under Section 24 of the Act, if the imposable penalty for the offense committed is not more than six (6) years of imprisonment, diversion may be conducted at the:

(a) Katarungang Pambarangay level under the Punong Barangay as provided in Rule 43.

Q: Does the rules in Katarungang Pambarangay apply under RA 9344 (The Juvenile Justice and Welfare Act)?

A: Under Rule 43, etc., the rules of the Katarungang Pambarangay may apply. A child in conflict with law may undergo diversion proceedings outside the criminal justice system when his/her case is referred to the barangay through the Lupon Tagapamayapa.

Q: How is DIVERSION at the level of Katarungang Pambarangay being conducted?

A: Diversion at the Katarungang Pambarangay level shall be conducted by the Lupon Tagapamayapa, chaired by the Punong Barangay, with the assistance of the members of the BCPC, as provided in Section 23 (a) of the Act. The Punong Barangay shall conduct mediation, family conferencing and conciliation and, where appropriate, adopt indigenous modes of conflict resolution with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program.

Q: Who are the participants in the conduct of DIVERSION at the Barangay level?

A: The child and his/her family shall be present in the conduct of these diversion proceedings. The offended party may participate in the diversion proceedings. The absence of the offended party in the diversion proceedings or his/her disagreement in its conduct shall not prevent the proceedings from being conducted. The Punong Barangay shall, however, endeavor to obtain the participation and the consent of the offended party in the formulation of the diversion program.

Q: What is the duty of the Punong Barangay upon termination of the diversion program?

A: Pursuant to Section 27 of the Act, the Punong Barangay handling the case shall, within three (3) days from determination of absence of jurisdiction or termination of the diversion proceedings as provided below, forward the records of the case to the:

(1) Law enforcement officer or prosecutor – when the child or the child’s parents/guardian does not consent to a diversion. Upon the issuance of the corresponding document, certifying to the fact that no agreement has been reached by the parties, the case shall be filed according to the regular process.

(2) Prosecutor or the court – when the case involves an offense with an imposable penalty of more than six (6) years imprisonment.

Q: What are the kinds of Diversion Programs available at the level of Punong Barangay?

A: Under Sec. 31 of the Act, the following diversion programs may be agreed upon, such as, but not limited to:

(a) At the Punong Barangay level:

1)   Restitution of property;

2)   Reparation of the damaged caused;

3)   Indemnification for consequential damages;

4)   Written or oral apology;

5)   Care, guidance and supervision orders;

6)   Counseling for the child in conflict with the law and the child’s family;

7)   Attendance in trainings, seminars and lectures on:

(i)            Anger management skills;

(ii)          Problem solving and/ or conflict resolution skills;

(iii)         Values formation; and

(iv)         Other skills which will aid the child in dealing with situations which can lead to repetition of the offense;

8)   Participation in available community-based programs, including community service, or

9)   Participation in education, vocation and life skills programs.

Q: Under R.A. 9344, as amended by R.A. 10630, which organizations have the responsibility in designing the community based diversion program?

A: The community-based programs for diversion shall be developed by the LGUs through the LSWDOs and the LCPCs, in coordination with the schools, youth organizations and other concerned agencies. These programs shall be consistent with the standards prescribed in the Act and guidelines issued by the DSWD.

The Sangguniang Kabataan, as prescribed by Section 17 of the Act, shall coordinate with the LCPC in the formulation and implementation of diversion programs in the community.

Q: Who are responsible for the assessment and evaluation of the community-based diversion program?

A: LGUs shall be responsible making the assessment and evaluation of the community-based programs for diversion in their annual report on the comprehensive juvenile intervention programs.

Q: Does the child in conflict with the law together with the parents required to report to the authority conducting the diversion program?

A: Per Rule 51, the child together with the parents or guardians shall present themselves to the competent authorities that imposed the diversion program at least once a month for reporting and evaluation of the effectiveness of the program.

Q: What if there’s a failure to comply with the terms and conditions of the diversion program?

A: In cases where the there is failure of diversion at the Barangay level, the Punong Barangay that conducted the diversion proceedings, upon a finding of failure to comply, may refer the case of the child to the law enforcement officer or prosecutor as if there is no consent to the diversion or that diversion is not appropriate and desirable for the child as provided in Section 29 of the Act.