Child, criminal

The last few days have seen heated debates around a bill to amend our minimum age of criminal liability. On first reading, the minimum age was lowered from 15 to 9; but, maybe because of the intense negative public reaction, it went up to 12 on second reading.

Internationally, there is a term used, complete with an abbreviation, which I think better captures what we’re debating: minimum age of criminal responsibility (MACR). I prefer this term because it shifts the focus away from “liability,” which in the Philippine context is so focused on getting caught and punished. In Filipino, “Hala! Lagot ka!”

I also prefer “responsibility,” because the debates should not be only about prosecution, but also about the state’s responsibilities to help young people who get into trouble with the law.

I went to the website of the Child Rights International Network (CRIN) to look for MACR information, expecting to find more developed countries having a higher minimum age.

My hunch was wrong. Within the Asean (Association of Southeast Asian Nations), the richest member countries have the highest MACR: 7 in Brunei and Singapore.  The MACR in the other countries are 8 in Indonesia, 10 in Malaysia, 15 in the Philippines (at least for now) and 16 in Vietnam and Laos.

The MACR in African countries is generally higher than in Asia, hovering around the age of 13, with only a few below 10.

Among the developed countries, the MACR is 10 in England and Wales, 12 in Canada, Belgium and the Netherlands, 14 in Spain and Italy, 15 in Denmark.

The most shocking figures for developed countries come from the United States, which leaves the MACR to individual states. There, 33 of the states do not even prescribe a minimum. CRIN comments that, theoretically, in these states children of any age could be held criminally liable. Among the remaining states that do have an MACR, North Carolina has the lowest at 7, while Wisconsin has the highest at 10.

As an anthropologist, I look at all this in relation to the dilemmas we face around the definition of “child” and of morality. Among animals (yes, we are animal), humans have the longest period of offspring being dependent on their parents, during which we want to assure children’s rights, such as having adequate food and shelter and access to education, as well as not having to be married off at an early age.

At the same time, we think of childhood as a time when values and morality are formed, when children learn to distinguish between right and wrong, and to be responsible for what they do.

Some cultures are stricter with children than others, and I thought that maybe the more authoritarian ones would have a lower MACR. But both North and South Korea have the same MACR of 14. China’s MACR is 16, while, surprisingly, in Hong Kong it is 10.

As I looked through CRIN’s information, I realized that many of the MACR laws do have important clarificatory provisions on criminal responsibility.  These provisions address three issues: the nature of the crime, concepts of maturity, and the state’s responsibility.

Several countries qualify that the MACR may be lowered for serious crimes like murder.  Malaysia dispenses with the MACR for violations of the Internal Security Act.

Countries also incorporate concepts of maturity. Muslim Sharia (also spelled Syariah) laws will invoke puberty as the dividing line for criminal liability (and, incidentally, eligibility for marriage).

Maturity is described in various ways, with Brunei and Malaysia explicitly stating: “sufficient maturity of understanding to judge the nature and consequences of their actions at the time of the offense.” The existing Philippine law on criminal liability uses “discernment,” a good term.

Finally, in several countries, MACR laws are oriented toward defining what the state’s role is. Will it be mainly as punisher? Remember that in 1961, Marcial Perez, better known as Baby Ama, was convicted for murder and executed by electric chair at the age of 16. A movie was even made about him, titled “Bitayin si Baby Ama (Execute Baby Ama).”

Many countries’ laws define MACR in relation to “social protection,” meaning children can be taken into custody to protect them and to provide rehabilitation.

I understand this is what Filipino legislators are trying to do right now, but I still worry. Our jails are now globally notorious for their subhuman living conditions, made worse in recent years because so many people are being arrested in the war on drugs. A law that allows 9- or 12-year-olds to be detained, even if in the name of social protection, and even if the children are separated from adult criminals, could mean the creation of juvenile hells.

mtan@inquirer.com.ph