Discernment

CHILD CRIMINALS—what to do with them? The Juvenile Justice and Welfare Act provides some guidance. It says: “A child above 15 years but below 18 years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act.”

There’s the rub: “unless he/she has acted with discernment”. What is discernment? Who decides whether a teenager’s criminal actions are the result of full and conscious knowledge on his/her part, and not merely the consequence of youthful ignorance? That legal qualifier suggests the need for a working public mental-health support structure staffed with competent child psychologists and psychiatrists, working hand-in-hand with the law-enforcement and justice systems.

Something like it does exist at present. For example, apprehended members of the infamous “batang hamog,” the gang of street urchins who target and steal from vehicles stalled by traffic on Edsa, are routinely turned over to the custody of the Makati Social Welfare Department. Technically, despite their detention, the kids are not under arrest and no charges are filed against them, since the law absolves them of criminal liability. Under the social welfare system, these wayward kids are presumably given counseling and rehabilitation in the hope that, once they are allowed to rejoin their families, they will not end up returning to the streets, graduating into full-fledged criminals in their adulthood, and adding to the congestion of our jails and prisons.

But is this intervention enough?

Recent news have brought home the chilling fact that the “batang hamog” and their ilk have leapfrogged from being petty thieves and the bane of motorists during rush hour into far more deadly types. A few days ago, a 9-year-old boy was beaten up by two street children in Bonifacio Global City in Taguig, and then thrown into a 5-foot hole filled with water, where he drowned. The victim, “Nonoy,” was reportedly with a friend in a playground when the assailants approached them and demanded money. Failing to get any, the assailants chased their victims into a construction site. Nonoy’s companion escaped, but Nonoy was caught and his hands and feet bound before he was pushed down the hole.

An 11-year-old boy has been arrested for the killing.

Who deserves blame for this crime? Is an 11-year-boy in a mental and psychological position to appreciate the horrific consequences of his actions? Should not his parents share part of the blame, and the criminal liability? But in a fraying, overpopulated metropolis like Manila where millions of destitute families live in hovels and squatter communities, where jobs are scarce and living conditions are a nightmare, penalizing parents for the acts of children they are unable to supervise can run the risk of being a rather simplistic solution, one that reduces the issue to a law-enforcement problem.

Last June, House Bill No. 6052, which seeks to strengthen the Juvenile Justice and Welfare Act, was passed by the chamber. A notable passage in the bill says that “if the offense charged is murder, parricide, homicide, kidnapping, rape, robbery, drug trafficking or other offenses punishable by more than 12 years, such child shall be presumed to have acted with discernment.”

If the amendments are signed into law, the boy who killed Nonoy, all 11 years old of him, will be “presumed to have acted with discernment” and will be charged with murder as an adult. Will justice be served by this blunt tack, or is there a better way, including one that educates adults?

The government should ramp up urgent state remedies such as counseling and focused social services for street kids and their families (with stringent monitoring requirements similar to those for the Conditional Cash Transfer program, for instance, and with emphasis on the education not only of the kids but also of the parents). A penal solution such as passage of a law exacting some degree of responsibility from parents for their kids’ behavior may then be a good supplement to such a program.

At one point in Kara David’s recent TV documentary “Anak ng Kalsada” on GMA 7, she asks a 14-year-old “batang hamog” whether he didn’t fear being punished for his acts. The boy answered, calmly, that he and his fellows would not be thrown in jail, anyway: “Hindi naman kami makukulong.”

That sounds very much like discernment. For them, but also—more soberingly—for us.