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Position paper on the Senate Bill on Children in Situation of Armed Conflict

A careful scrutiny of the Bill leads us to present the following suggestions and comments on the items included in the Bill. We are strongly suggesting that the necessary revisions be made in order to carry out our objective in promoting and protecting the rights of the Filipino child.

All parties to the conflict, the Armed Forces and other Armed Groups must be treated as possible perpetrators and should not be given any special treatment or consideration. They should be on equal footing if what we are after is the welfare of the Filipino Children.

Chapter I b.

Take into account the Paris Principles on the Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, the United Nations Guiding Principles on Internal Displacement, the United Nations Security Council Resolutions related to children affected by armed conflict, Rome Statute of the International Criminal Court and other pertinent international instruments in the implementation of its treaty obligations and of this Act;

COMMENT:

This should be removed. The inclusion of the Paris Principle in the Declaration of State Policies necessarily contradicts the provisions in the Convention on the Rights of the Child and its Optional Protocol. The Convention on the Rights of the Child being recognized as the standard in International Law in terms of providing for the protection and promotion of the rights of the child should be used as a pattern and the basis of this Act.

f. Take all the necessary measures to address the root causes of armed conflict that result in involving, affecting or displacing children, which include poverty, lack or absence of quality basic psycho-social services, belief in the ideologies of an armed group, secessionist advocacy, affiliation of family members in armed groups, pursuit of alternative justice for atrocities, abuses and injustices experienced, and persistence of armed conflicts;

COMMENT:

The item is vague. The root cause of armed conflict and measures to address the same must be stated.

SEC. 5. Definition of Terms

a. “Armed Conflict” - refers to armed confrontations occurring between governmental armed forces and one or more armed groups, or between such groups arising in the Philippine territory. These shall include activities which may lead to armed confrontation or armed violence that put children's lives at risk and their rights violated;

COMMENT:

The definition should be revised and the definition proposed by the International Committee of the Red Cross (ICRC) defining Non-international armed conflict should be used. ICRC defined it as “protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Convention]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organisation”.

This is to limit and to make a more precise definition so as not to include those armed confrontations arising from, e.g. sporadic and isolated violent armed confrontations.

d. “Attacks on Schools, Hospitals, Places of Worship, Evacuation Centers and Public Places Where Children are Usually Found” - refer to the occupation without a lawful purpose, shelling, targeting for propaganda in relation to unlawful purposes or purposes contrary to public policy, order, or morals, of schools, hospitals or places of worship; causing damage to such places, or harm or injury to their personnel; or causing the total or partial physical destruction of such facilities; or disruption of educational activities and health services. It also refers to attacks of such places which have been temporarily abandoned by the community as a result of armed conflict, unless these places have been declared as a "no man's land";

COMMENT:

It should be read as occupation per se without any qualification. The same goes to propaganda as it should be propaganda per se without qualification. The addition of “unlawful purpose, contrary to public policy, order or morals” would necessarily exempt the propaganda activities of the military such as but not limited to forums demonizing legitimate partylists and organizations. Being the Armed Forces of the ‘duly constituted authority’, they/their activities enjoy the presumption of being lawful and in line with morals and public policy.

Further, the declaration of a community as a ‘no man’s land’ has no qualifying requirements and no clear guidelines as to who makes the declaration.

h. “Children Involved in Armed Conflict (CIAC)” - refers to children who are either forcibly, compulsorily recruited or who voluntarily joined in any governmental armed forces or any armed group in any capacity to participate directly in armed hostilities as combatants or as fighters, or take support roles such as but not limited to scouting, spying, sabotaging, acting as decoys, assisting in checkpoints, being couriers, messengers, porters, or cooks, and being used for sexual purposes;

COMMENT:

This is the Paris Principle definition. The definition in the optional protocol of the convention on the rights of the child must be used. Armed conflicts are armed confrontations and therefore it is just logical that children involved in armed conflict are only those children directly participating in armed hostilities.

n. “Governmental Armed Forces” - refer to the Armed Forces of the Philippines (AFP), including the Civilian Armed Force Geographical Units Active Auxiliaries (CAA); and shall likewise include the Philippine National Police (PNP), and other law enforcement agencies;

COMMENT:

The definition should include ‘and other armed groups who are under the control, supervision, and mandate of the Government’.

v. “Intentional Delayed Reporting of a Child In Custody” - is the failure of any person, who shall take custody pursuant to Section 22 of this Act, of children involved in armed conflict (CIAC) to report the same to the Local Social Welfare and Development Office (LSWDO), Armed Forces of the Philippines (AFP), Philippine National Police (PNP), or barangay office within forty-eight (48) hours from taking such custody;

COMMENT:

The Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) should be removed from the enumeration. Worth noting is the fact that the AFP and the PNP are parties to the armed conflict as they are defined to be the Governmental Armed Forces. Therefore, they are possible violators of this Act.

CHAPTER II

RIGHTS OF CHILDREN IN ARMED CONFLICT

i. The right not to be interned in or confined in camp, especially IDC and their families;

COMMENT:

Camp in this item must be specifically defined. It should include barracks, detachment, headquarters, or any similar military, police or paramilitary building or structure of the government.

CHAPTER III

UNLAWFUL AND PROHIBITED ACTS

SEC. 8. Unlawful and Prohibited Acts.

c. It shall also be unlawful for parents, ascendants, guardians, step parents or collateral relatives within the third degree of consanguinity or affinity or any person having control or moral ascendancy to the child to allow, willfully encourage, compel, coerce, or influence their child or children to be part of an armed group or a governmental armed force.

COMMENT:

This should be removed or it must be reformulated. We agree that compelling and coercing a child must be punishable. It should be formulated in such a way to only punish acts of compulsion and coercion otherwise it would be highly violative of the Consitution and the established rules on how one incurs criminal liability. First, it can be inferred that this provision blatantly runs counter to the Constitutional recognition of the family as the basic unit of the society and the undertaking of the State to preserve its sanctity. It necessarily alienates family members from each other as the communication between them are imputed with malice. Second, what is punished here is the act of ‘allowing, willfully encouraging, compelling, coercing, and influencing’ a child ‘to be a part’; ‘to be a part’ would mean that the child has not yet been enlisted or recruited. Unless the child has been enlisted or recruited, no violation has been committed/ no consummation of the offense. Acts in violation of a special law constitute mallum prohibitum and the acts should necessarily be committed in its consummated stage, unless the special law provides for its attempted and frustrated stages.

CHAPTER IV

PENALTIES AND PRESCRIPTION OF OFFENSES

SEC. 9. Penalties

d. Parents, ascendants, guardians, step parents or collateral relatives within the third degree of consanguinity or affinity or any person having control or moral ascendancy to the child to allow, willfully encourage, compel, coerce, or influence their child or children to be part of an armed group shall be punished with not less than six (6) years but not more than twelve (12) years. : Provided, however, That parents, ascendants, guardians, step parents or collateral relatives within the third degree of consanguinity or affinity or any person having control or moral ascendancy to the child found guilty hereof may be allowed to serve the minimum period of imprisonment based on the sound discretion of the courts guided by the principles of parens patriae.

COMMENT:

The penalties are very excessive and not commensurate with the violation.

SEC. 10. Non-implementation or Violation of any other Provisions of this Act or the Rules and Regulations in General.

Any person who shall commit any other act not covered in Section 8, which shall result in prejudicing the rights of CIAC, CAAC or IDC protected under this Act shall be punished with an imprisonment of not less than six (6) months but not more than six (6) years.

COMMENT:

This section violates the basic rule in criminal law and the law on statutory construction. Punishable acts must be clearly defined and specified because the violation of which would mean imprisonment and penalty. This is so broad and would result in creating an ipso facto law.

SEC. 11. Forfeiture of Proceeds, Property and Assets. - The court shall order the forfeiture of proceeds, property and assets derived, directly or indirectly, from the offenses defined and penalized in this Act, without prejudice to the rights of the bona fide third party. The court shall impose the corresponding accessory penalties under the Revised Penal Code, especially where the offender is a public officer.

The liabilities imposed in this Act shall not prejudice the application of other existing offense, civil and administrative liabilities that may additionally be imposed upon the person.

COMMENT:

This section must be clearly defined. It is very vague as to what are these properties, proceeds, and assets that are to be forfeited. The parameters must be clearly discussed as this would result in the violation of the constitutional right of a person to property and these properties must not be taken from him or her without due process.

SEC. 12. Non-Prescription . - The offenses defined and penalized under this Act, their prosecution, and the execution of sentences imposed on their account, shall not be subject to any prescription.

COMMENT:

A prescriptive period must be set. Even the felony of murder which carries with it the penalty of reclusion perpetua has a prescriptive period, the acts punishable under this Act must have a prescriptive period.

CHAPTER V

PRINCIPLES OF CRIMINAL LIABILITY AND APPLICATION OF PENALTIES

SEC. 16. Unknown Superior .- Where the offenses defined and penalized under this Act have been committed by a person pursuant to an order or command of an unknown superior, any person who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, or who has performed similar acts, on behalf of the armed groups shall be deemed the superior.

COMMENT:

The section should also include governmental armed forces.

CHAPTER VI

INVESTIGATION, PROSECUTION AND COURT

SEC. 17. Court, Prosecutors and Investigators The Commission on Human Rights (CHR), the Department of Justice (DOJ) and its attached agencies, the Philippine National Police (PNP) or other concerned law enforcement agencies shall designate prosecutors or investigators, as the case may be, for cases involving offenses punishable under this Act.

COMMENT:

Prosecutors for violations of this Act should only be the Department of Justice (DOJ) for they are the ones who are equipped with the necessary training and expertise not to mention that it is in their job description.

SEC. 21. Immunity from Suit for Persons Providing Assistance . - Any person who shall take custody of CIAC to ensure their safety or provide them any form of assistance shall be exempt from any civil, criminal and administrative liability for abduction provided that the person shall report the fact of such custody to the Local Social Welfare and Development Office (LSWDO), the Armed Forces of the Philippines (AFP), Philippine National Police (PNP) or to the barangay office within forty-eight (48) hours from the time the child is taken in his custody.

COMMENT:

The Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) should be removed from the enumeration. Worth noting is the fact that the AFP and the PNP are parties to the armed conflict as they are defined to be the Governmental Armed Forces. Therefore, they are possible violators of this Act.

Further, it should be specified that parties to the armed conflict, members of the governmental armed forces and members of any other armed group should not be included as among those who can enjoy immunity from suit. Granting immunity to any member of a party to the armed conflict would prejudice the rights of the child as his/her family would be denied the remedies like the extraordinary writs of habeas corpus and writ of amparo.

CHAPTER VIII

INVOLVEMENT OF GOVERNMENT AGENCIES AND NON-GOVERNMENT ORGANIZATIONS

SEC. 26. Involvement of Government Agencies (GAs) and Nongovernment Organizations (NGOs) .- To effectively address the issue of CSAC, the Council for the Welfare of Children (CWC) together with its member agencies shall be assisted by the following government agencies (GAs) for the proper implementation of this Act:

a. Department of National Defense (DND);

b. Armed Forces of the Philippines (AFP);

c. Commission on Human Rights (CHR);

d. Local Government Units (LGUs);

e. National Commission on Indigenous Peoples (NCIP);

f. National Commission on Muslim Filipinos (NCMF);

g. National Disaster Risk Reduction and Management Council (NDRRMC);

h. Office of the Presidential Adviser on the Peace Process (OPAPP);

i. Philippine Commission on Women;

j. Department of the Interior and Local Government (DILG);

k. Philippine National Police (PNP); and

l. Bureau of Jail Management and Penology (BJMP).

m. Non-government organizations (NGOs) involved in caring for CSAC shall take active part in and strengthen their programs on protecting these children.

COMMENT:

The Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) should be removed from the enumeration. They are parties to the armed conflict as they are defined to be the Governmental Armed Forces. Therefore, they are possible violators of this Act. Placing them in the Council would vest them immunity as it would be convenient for them to be detaining and taking into custody any child whom they suspect to be a CIAC.

CHAPTER X

TRANSITORY PROVISIONS

SEC. 28. Children Involved in Armed Conflict. - Upon the effectivity of this Act, offense cases against ClAC shall immediately be dismissed and the child shall be referred to the LSWDO. Such office, upon thorough assessment of the child, shall determine whether to release the child to the custody of the parents, or refer the child to prevention, rehabilitation, reintegration programs as provided under this Act. Those with suspended sentences and undergoing rehabilitation at the youth rehabilitation center shall likewise be released: Provided, That the Family Court shall, in consultation with concerned agencies, determine and order the appropriate prevention, rehabilitation, reintegration programs the person shall undergo as provided in this Act.

SEC. 29. Inventory of CSAC in Custody. - The DND/AFP, the DILG/PNP, the BJMP, the DSWD, the NCIP, NCMF, and the concerned LGUs are hereby directed to submit to the CWC, within ninety (90) days from the effectivity of this Act, an inventory of all CSAC under their custody.

SEC. 30. Children Who Reach the Age of Eighteen (18) Years Pending Court Proceedings or in Suspended Sentences. - In cases where a child involved in armed conflict reaches the age of eighteen (18) years during the pendency of the case, the Family Court shall dismiss the case against the person and determine in consultation with concerned agencies whether or not there is a need for the person to undergo appropriate rehabilitation and reintegration programs provided in this Act. Those with suspended sentences and undergoing rehabilitation at the youth rehabilitation center shall likewise be released: Provided, That the Family Court shall, in consultation with concerned government agencies, determine and order the appropriate rehabilitation, reintegration programs the person shall undergo as provided in this Act.

SEC. 31. Children Who Have Been Convicted and are Serving Sentence. – Children involved in armed conflict who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time of the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. They shall be entitled to appropriate dispositions provided under this Act and their sentences shall be adjusted accordingly. They shall be immediately released if they are so qualified under this Act.

COMMENT:

The whole transitory provision runs counter to the provisions of RA 9344. The guidelines are already set and providing for a different guidelines would just cause blunder in the implementation of laws for the welfare and for the benefit of the child.

 

CONCLUSION

We've stated our position on the bill, unless the proposed revisions are carried over, the purpose of the Bill to promote and protect the rights of the child will be defeated.

We can forgo with the other comments and suggestions we have interposed except on the inclusion of the Paris Principle, the giving of blanket immunity, and the ipso facto law provisions.

In conclusion,the passage of this bill does not entirely assure us that it would be implemented in the way that the law aims to do, as shown by RA 7610. All components of this Bill are already covered by law: the Revised Penal Code and other Special Laws such as the RA 7610, RA 9344, to mention a few.

The climate of impunity in committing human rights violations still pervades and is a major stumbling block to our goal of ensuring children in situation of armed conflict are protected. With all these, CRC still stand that the government should address poverty, unemployment, landlessness, low wages, injustices, and lack of basic services. And by resolving the root cause of armed conflict which is the main assurance that all children will fully enjoy their rights.###

Children's Rehabilitation Center in consultation with the National Union of People's Lawyers

21 January 2013