Child Participation in the Philippines:
Reconstructing the Legal Discourse of Children and Childhood
by
Rommel Salvador
A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto
© Copyright by Rommel Salvador 2013
Child Participation in the Philippines:
Reconstructing the Legal Discourse of Children and Childhood
Rommel Salvador
Doctor of Juridical Science
Faculty of Law University of Toronto
2013
Abstract
This thesis explores the participation of children within legal discourse by looking at how laws and policies engage or disengage children. The basic premise is that to understand children’s participation is to confront the discourse of children and childhood where we uncover underlying assumptions, interests and agendas that inform our conception of who the child is and what the experience of childhood entails. Specifically, the thesis examines child participation within the Philippine legal framework by looking at the status, conditions and circumstances of children in four contexts: family, educational system, work environment and youth justice system. It argues that our conceptions of children and childhood are not only produced from a particular discourse but in turn are productive of a particular construction and practices reflected in the legal system.
In its examination, the thesis reveals a complex Philippine legal framework shaped by competing paradigms of children and childhood that both give meaning to and respond to children’s engagements. On the one hand, there is a dominant discourse based on universal patterns of development and socialization that views children as objects of adult control and influence. But at the same time, there is some concrete attraction to an emerging paradigm
ii influenced by childhood studies and the child rights movement that opens up opportunities for children’s participation.
In advocating for broader acceptance of the emerging paradigm, the thesis identifies distinctive understandings of this paradigm in the Philippine context. A central argument is that in reconstructing the legal discourse of children and childhood, children’s participation grounded on the emerging paradigm does not necessarily introduce “new” understandings of children and childhood in the Philippines but, in fact, confirms existing beliefs and practices that articulate deeply held indigenous relational values. Within this contextualized understanding of the emerging paradigm, the thesis articulates children’s participation as: recognition of children as rights-bearers; acknowledgment of children’s realities as lived and experienced by them; and respect for the meaningful and constitutive relationships that children establish. Consequently, the intrinsic quality and meaning of actions of the child and towards the child take on a significant legal, social and moral value.
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Acknowledgments
I am profoundly grateful for having embarked on this intellectual and personal journey with a truly dedicated and exceptional mentor, Prof. Carol Rogerson. She was deeply engaged in every step of this road I travelled. She knew when to push and when to pull back. She has been a true source of admiration and inspiration. I am humbled and overwhelmed by her trust and confidence in me; her unwavering support and encouragement; and her selfless commitment to share her intellectual expertise and see me through in this research. I have nothing but deep and profound respect for her.
I am thankful to Profs. Jennifer Nedelsky and Brenda Cossman for their thoughtful, valuable and challenging insights all throughout this process that have helped me look at a multitude of issues that my dissertation has raised. Not only have they been exceptionally committed to this research but they have also been incredibly supportive and encouraging. Truly, they have been instrumental in this research of mine. I would also like to thank the external and internal members of my examination committee, Prof. Nicholas Bala, who travelled from the Faculty of Law of Queen’s University to engage with me for my defense and Prof. Kerry Rittich. Prof. Bala provided very insightful comments and raised critical issues having done so much work with children and being a leading expert in the area of children and the law. Prof. Rittich has pushed me even more towards intellectual inquiry and has encouraged me to be even more critical with the issues raised by my research. Their engagements have made this process even more intellectually fulfilling and stimulating.
I am also thankful to the Faculty of Law of the University of Toronto, especially the Graduate Program for having been my home while I embarked on this journey. I especially would like to thank Profs. David Dyzenhaus and Jutta Brunnee who have always supported and encouraged me throughout my doctoral studies. Their belief in me has provided that extra push I needed during times of discouragement and doubt. I would also like to express my deep gratitude and appreciation to Julia Hall whose untiring commitment and dedication to the Graduate Program and all its students have been a constant source of inspiration. She has been truly helpful and supportive throughout this entire journey of mine.
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I would also like to thank all the institutions and individuals who have provided academic, administrative and personal support throughout my doctoral studies. I would especially like to thank the very able and helpful staff of the Bora Laskin Law Library of the Faculty of Law of the University of Toronto and the Robarts Library. They have provided exceptional research assistance. I also thank all my cohorts in the SJD program, all the past and present students with whom I have shared discussions, stories and experiences, all the professors I have engaged with and all the staff at the Faculty who have shaped and influenced my stay at the Faculty.
I would like to thank my family here in Toronto, my parents, Primitivo and Corazon, my sister and her family, Maricor, Ronald and Paolo and my brother and his family in the U.S., Lenin, Myla and Yelena. All of them have always been supportive and encouraging throughout this long and at times, difficult journey. I would also like to thank our family back in the Philippines, Alfonso, Araceli, Alain, Angela, Allian and Amia who have been patiently praying and supporting me. They have all been a constant source of inspiration.
Finally, I dedicate this dissertation to the four people who have grounded me throughout this journey and who have given meaning to what I do everyday. I dedicate this work to my wife and partner in life, Aleli, who has stood by me in this journey of wins, losses and breakevens; endured all my fits and madness; prayed, cried and laughed with me; celebrated with me for every draft submission; shared in my joy for every approved draft; encouraged me in the midst of despair with every ripped or rejected draft or when I doubted if I could ever finish; and with whom I have felt and experienced unconditional love. I also dedicate this work to our three beautiful children, Moira, Sandrina and Isabella who have made me so much more hopeful. All of you are reason enough why life is a blessing and for me to be thankful everyday of my life.
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TABLE OF CONTENTS
INTRODUCTION…..…………………………………………………………………...1 I. INTRODUCTION……………………………………………………………………….1 II. THE DISCOURSE OF CHILDREN, CHILDHOOD AND PARTICIPATION…………………11 A. THE DOMINANT DISCOURSE OF CHILDREN AND CHILDHOOD…………………...11 1. THE DEVELOPING CHILD: “CHILDHOOD AS NATURE”……………………...…..14 2. THE SOCIAL CHILD: “CHILDHOOD AS NURTURE”……………………………....16 B. THE EMERGING PARADIGM OF CHILDREN AND CHILDHOOD……………….……17 1. CHILDHOOD STUDIES…………………………………………………….……18 2. CHILD RIGHTS AND THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD …...………………….……………………..…..20 C. ARTICULATING THE PARTICIPATION OF CHILDREN………..…………………….22 1. PARTICIPATION AS A RECOGNITION OF CHILDREN AS RIGHTS-BEARERS…...…..25 2. PARTICIPATION AS AN ACKNOWLEDGMENT OF CHILDREN’S REALITIES...……..29 3. PARTICIPATION AS RESPECT FOR THE RELATIONSHIPS OF CHILDREN…..………29 III. THE FRAMEWORK APPLIED: FOUR CONTEXTUAL STUDIES………………………..34 CHAPTER I: THE CHILD, THE FAMILY AND THE LAW………………….……36 I. THE DOMINANT PARADIGM…………………………………………………………40 II. THE EMERGING PARADIGM………………………………………………………...43 III. THE DOMINANT PARADIGM AND THE PHILIPPINE FAMILY: THE RHETORIC OF PARENTAL AUTHORITY…………………………………..…….46 IV. A RE-IMAGINING OF THE PHILIPPINE FAMILY AS THE BASIS OF THE EMERGING PARADIGM: THE PARTICIPATION OF CHILDREN IN THE FAMILIAL NETWORK OF RELATIONSHIPS………………………………….…..55 V. RE-INTERPRETING LEGAL NORMS TO REFLECT THE RELATIONAL NATURE OF THE FAMILY: RECOGNIZING THE ENGAGEMENTS OF THE CHILD AS PARTICIPATION……………………….………………………….62 A. SUPPORT…………………………………………………………………..…….67 B. GUARDIANSHIP………………………………………………………………….69 C. FAMILY HOME……………………………………………………….………….70 D. FAMILY AFFAIRS, “CHILD-REARING” AND DISCIPLINE……………………....….71 E. PARENTAL CONSENT AND ADVICE………………………………………………75 VI. CONCLUDING REFLECTIONS: PROSPECTS FOR THE PARTICIPATION OF CHILDREN WITHIN THE PHILIPPINE FAMILY………………………………………….……….77 CHAPTER II: THE CHILD, EDUCATION AND THE LAW………………………80 I. THE “ABSENCE” OF CHILDREN IN EDUCATION: DOMINANT REPRESENTATION…...…88 II. ACKNOWLEDGING CHILDREN IN EDUCATION: EMERGING PARADIGM……………...90 III. THE LEGAL CONTEXT OF THE PHILIPPINE EDUCATIONAL SYSTEM: A DICHOTOMY OF FRAMEWORKS…………………………………………………….…….………92 A. THE DOMINANT LEGAL FRAMEWORK IN THE PHILIPPINE EDUCATIONAL SYSTEM: A UNIVERSAL PRESCRIPTION FOR THE DEVELOPMENT OF FUTURE CITIZENS..….93 B. THE EMERGING PARADIGM IN THE PHILIPPINE EDUCATIONAL SYSTEM: AN ACKNOWLEDGMENT OF THE ROLE AND RIGHTS OF STUDENTS IN EDUCATION……………………………………………..……..99 IV. STATE RESPONSE TO THE ENGAGEMENTS OF CHILDREN IN EDUCATION: TWO STEPS FORWARD, ONE STEP BACK………………………………………….105 A. JUDICIAL RESPONSE TO CLAIMS FOR THE EXERCISE OF STUDENTS’ RIGHTS:
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A NARRATIVE OF EXCLUSION AND RECOGNITION………...... ……………..106 1. REJECTING STUDENTS’ RIGHTS WITHIN EDUCATION: AN ATTITUDE OF EXCLUSION….…………………………………………….107 2. UPHOLDING STUDENTS’ FUNDAMENTAL RIGHTS AND FREEDOMS: INDICATIONS OF RECOGNITION……….……………………………….…….112 3. MAKING SENSE OF THE JUDICIAL RESPONSE TO STUDENTS’ CLAIMS OF RIGHTS: RESTRAINED VICTORY…………….……………………..………………….119 B. POLICY RESPONSE TO THE ENGAGEMENTS OF STUDENTS: THE RHETORIC OF PARTICIPATION VS. THE REALITY OF EXCLUSION….………121 1. THE CURRICULAR REFORM OF 2002: THE INVOLVEMENT OF THE CHILD-LEARNER OR A “CURE” FOR STUDENTS?...... 121 2. THE CURRENT REFORM TO BASIC EDUCATION: AN INCLUSIVE SYSTEM OR AN IMPOSING SCHEME?...... 126 3. EDUCATIONAL POLICY REFORMS AND THE PARTICIPATION OF CHILDREN: MUTED VICTORY………….……………………………………..………….131 V. CONCLUDING REFLECTIONS: MOVING FORWARD………………………………...132 CHAPTER III. THE CHILD, LABOR AND THE LAW...…………………..……..137 I. THE COMPETING PARADIGMS OF CHILDREN AND WORK…………………………..142 A. THE DOMINANT PARADIGM…….………………………………………...……142 B. EMERGING PARADIGM…………………………………………………...…….148 II. A HISTORICAL ANALYSIS OF THE LEGAL FRAMEWORK OF CHILD WORK IN THE PHILIPPINES………….……………………….……………..151 A. THE FIRST CHILD LABOR LAW OF 1923: INDUSTRY-SPECIFIC CHILD WORK REGULATION…………………………..…..152 B. THE 1952 LAW: TRANSITION FROM REGULATION TO PROHIBITION…....………155 C. THE 1971 AND 1973 AMENDMENTS: MORE DEFINITIVE MINIMUM AGE LEGISLATION WITH A CLEARER PROHIBITION AGAINST CHILD WORK…...159 D. THE 1974 PHILIPPINE LABOR CODE AND CHILD AND YOUTH WELFARE CODE: CHILD WORK AS AN ISSUE OF BOTH LABOR REGULATION AND CHILD PROTECTION……………………………………………………….161 E. THE 1992 ANTI-CHILD ABUSE LAW: HINTS OF A NEW DIRECTION IN CHILD LABOR LEGISLATION………………………………….………..……162 F. THE 1993 AMENDMENT TO THE ANTI-CHILD ABUSE LAW: A QUICK RESPONSE UNDERSCORING THE POLICY AGAINST CHILD WORK…….165 G. THE 2003 LAW ON THE ELIMINATION OF THE WORST FORMS OF CHILD LABOR: PRIORITIZATION OR REDUNDANCY……………………………………..…………166 III. CHILD WORK LAWS AND POLICIES: A DOMINANT CONSTRUCTION OF CHILDREN AND CHILDHOOD……………..…….170 A. AGE IS A DEFINITIONAL MARKER…………………………………..………….172 B. ALL CHILD WORK IS “CHILD LABOR”……………………………………...….174 C. PERMISSIBLE CHILD WORK IS NOT WORK………………………………….….175 1. WORK UNDER THE SOLE RESPONSIBILITY OF THE PARENTS…………………..176 2. LIGHT WORK…………………………………………………………..……..179 3. “PRIVILEGED” WORK……………………………………………….………..180 D. ADULTS KNOW BEST……………………………………………………..……182 IV. REFORMULATING CHILD WORK LEGISLATION: CHILDREN AND PARTICIPATION……...…………………………………………...183 A. AN EQUALLY “REAL” CHILDHOOD………………………………………....….184
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B. A CAPABLE AND PERCEPTIVE CHILD……………………………………..……185 C. A BROADER UNDERSTANDING OF HARM………………………………………188 D. A REALITY OF WORK AND SCHOOL……………………………………………190 V. CONCLUDING REFLECTIONS………………………………………………...…….193 CHAPTER IV. THE CHILD, YOUTH JUSTICE AND THE LAW………..……...196 I. DOMINANT MODELS OF YOUTH JUSTICE POLICY: REFLECTING THE DOMINANT CONSTRUCTIONS OF CHILDREN AND CHILDHOOD……..205 A. WELFARE AND THE ETHIC OF CARE: SAVING THE INNOCENT CHILD……....…..205 B. JUSTICE AND RESPONSIBILIZATION: CONTROLLING THE DANGEROUS CHILD….208 1. RESPONSIBILITY AND THE IMPOSITION OF PUNISHMENT………………….….208 2. RESPONSIBILITY AND A “DETERMINATE” SYSTEM OF JUSTICE…………….....211 II. EMERGING PARADIGM: LOCATING THE CHILD WITHIN YOUTH JUSTICE POLICY….212 III. THE YOUTH JUSTICE SYSTEM IN THE PHILIPPINES: WELFARE AND JUSTICE IN RHETORIC AND REALITY…………………………...…217 A. FIRST ARTICULATION OF A YOUTH JUSTICE POLICY: ORIGINS OF WELFARISM...... 219 B. SUSPENSION OF JUDGMENT AND ALTERNATIVE FORMS OF COMMITMENT: INFLUENCES OF THE CHILD-SAVING MOVEMENT………………………………221 C. OVER 40 YEARS OF CARE, CORRECTION AND EDUCATION: CONTINUING THE WELFARE TRADITION…………………………...…………..225 D. YOUTH JUSTICE POLICY IN CHILD WELFARE LAW: WELFARE AND ITS INTRUSIVE REACH……………………………….…………227 E. BLURRING THE LINES BETWEEN WELFARE AND JUSTICE: SEEDS OF THE EMERGING PARADIGM………...……………………..…………235 F. WELFARE AND JUSTICE IN RHETORIC AND PRACTICE: REFORMULATING THE YOUTH JUSTICE SYSTEM………………………………..242 G. DEBATES ON THE CURRENT LAW WELFARE VS. JUSTICE – AGAIN……...……………………………….………..250 IV. THE JUVENILE JUSTICE AND WELFARE ACT OF 2006 AND THE EMERGING PARADIGM: A FRAMEWORK OF PARTICIPATION………………………………………….……254 A. LIMITATIONS OF THE DISCOURSE ON WELFARE/JUSTICE DIVIDE…………...….254 B. RE-FRAMING THE DISCOURSE OF YOUTH JUSTICE POLICY……………..………257 V. THE WAY FORWARD: GUARDED OPTIMISM…………………………………...….267 CONCLUSION……..………………………………………………………...……….270 I. THE DOMINANT DISCOURSE AND ITS PROFOUND INFLUENCE………………...……272 II. EXPRESSIONS OF THE EMERGING PARADIGM AND ITS TENUOUS FOOTHOLD…...…275 III. A CONTEXTUALIZED UNDERSTANDING OF THE EMERGING PARADIGM AND CHILDREN’S PARTICIPATION………………………………………………..280 IV. MOVING FORWARD…………………………………………………….………..286 BIBLIOGRAPHY………………………………………………………………...…..289
viii 1 INTRODUCTION
I pondered deeply, then, over the adventures of the jungle. And after some work with a colored pencil I succeeded in making my first drawing. My Drawing Number One….I showed my masterpiece to the grown-ups, and asked them whether the drawing frightened them. But they answered: ‘Frighten? Why should any one be frightened by a hat?’ My drawing was not a picture of a hat. It was a picture of a boa constrictor digesting an elephant. But since grown-ups were not able to understand it, I made another drawing: I drew the inside of the boa constrictor, so that the grown-ups could see it clearly. They always need to have things explained….The grown-ups’ response, this time, was to advise me to lay aside my drawings of boa constrictors, whether from the inside or the outside, and devote myself instead to geography, history, arithmetic and grammar….Grown-ups never understand anything by themselves, and it is tiresome for children to be always and forever explaining things to them.1
It is clear that listening to children, hearing children, and acting on what children say are three very different activities, although they are frequently elided as if they were not. The (re)discovery of children in the academy is akin in some respects to the rediscovery of poverty, of women, or of the working class in the 1960s and 1970s. Children have always been with us. There have always been people who have listened, sometimes there have been people who have heard, and perhaps less often, those who have acted wisely on what children have had to say (citations omitted).2
I. INTRODUCTION
The statement that children have been “(re)discovered” although they “have always been with
1 Antoine de Saint Exupéry, The Little Prince, translated by Katherine Woods (New York: Harcourt, Brace & World, Inc., 1943) at 3-4. 2 Helen Roberts, “Listening to Children: and Hearing Them” in Pia Christensen and Allison James, eds, Research with Children: Perspectives and Practices (London: Falmer Press, 2000) at 238.
2 us” is indicative of the absence of children in the discourse of children and childhood. This is not to say that there has been a lack of interest in children. Rather, in matters relating to children, the voices of children themselves have been shut out.3 The rediscovery of children referred to in the opening passage represents the movement over the last three decades towards a greater recognition of children’s participation in matters that affect them. Graham and Fitzgerald write that “a substantial body of research has focused on the importance of affording children the rightful and legitimate claim to ‘have a say’ and for adults to ‘listen to the voices of children’ in relation to the decisions and activities that influence their lives.”4 This process of participation where children’s “own interests and perspectives”5 are taken into account is, in fact, now well documented both theoretically and empirically.6 Article 12 of the United Nations Convention on the Rights of the Child (UNCRC) provides:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.7
Although “participation” does not appear in the text of the UNCRC, the Committee on the Rights of the Child notes that “this term has evolved and is now widely used to describe ongoing processes, which include information-sharing and dialogue between children and adults based on mutual respect, and in which children can learn how their views and those of adults are taken into account and shape the outcome of such processes.”8 However, despite these developments, children’s participation is increasingly described as “ambiguous, uncertain and
3 See e.g. Hilary Lim and Jeremy Roche, “Feminism and Children’s Rights: The Politics of Voice” in Deirdre Fottrell, ed, 10 Years of the UN Convention on the Rights of the Child (The Hague, The Netherlands: Kluwer Law International, 2000). 4 Anne Graham and Robyn Fitzgerald, “Progressing Children’s Participation: Exploring the Potential of a Dialogical Turn” (2010) 17:3 Childhood 343 at 344. 5 Allison James and Adrian James, Constructing Childhood: Theory, Policy and Social Practice (Houndmills, Basingstoke, Hampshire: Palgrave Macmillan, 2004) at 23. 6 See The United Nations Children’s Fund, The State of the World’s Children 2003 (New York: UNICEF, 2002); Christine Hallett and Alan Prout, eds, Hearing the Voices of Children: Social Policy for a New Century (London: RoutledgeFalmer, 2003); E. Kay Tisdall et al, eds, Children, Young People and Social Inclusion: Participation for What? (Bristol, UK: Policy Press, 2006). See also the Special Issue of the International Journal of Children’s Rights on “Theorising Children’s Participation: International and Interdisciplinary Perspectives” (2008) 16:3 Int’l J Child Rts. 7 Convention on the Rights of the Child, 1577 UNTS 3 (entered into force 2 September 1990) [UNCRC], art. 12. 8 United Nations Committee on the Rights of the Child, General Comment No. 12 (2009) The Right of the Child to be Heard, CRC/C/GC/12, 51st Sess (2009) at 5, par. 3.
3 contested.”9 Sinclair encapsulates the difficulty: “[T]here is still much uncertainty about how to involve children, especially how to do so in a way that is effective and brings about change – particularly change that is lasting.”10 The challenge is understandable considering that an exploration of the participation of children is as much about looking at ourselves as a society as it is about focusing on children. Recognizing the participation of children really compels us to examine how “we” see children and their place in society.11 Graham and Fitzgerald view this examination as a process in which adults “plac[e] our own experience at risk”12 by “acknowledg[ing] our prejudices and pre-understandings, many of which are hidden from view or so deeply embedded in our assumptions and behaviours that we may not readily recognize them.”13 This means that to understand children’s participation is to confront the discourse of children and childhood where we uncover underlying assumptions, interests and agendas that inform our conceptions of who the child is and what the experience of childhood entails.14 Moss, Dillon and Statham characterize the undertaking in terms of value and ethics, with the appropriate question being: “[W]ho do we think children are?”15
In its exploration of children’s participation, this thesis confronts the very question of “who do we think children are?” by looking at how the Philippine legal system engages (or disengages) children16 and asking what that engagement (or disengagement) means for both children and adults. In particular, the thesis examines the Philippine legal frameworks that deal with the status, conditions and circumstances of children in the family, the educational system, the work environment and the youth justice system. This examination reveals not only how the legal
9 Graham and Fitzgerald, supra note 4 at 343. 10 Ruth Sinclair, “Participation in Practice: Making it Meaningful, Effective and Sustainable” (2004) 18 Children and Society 106 at 106. 11 See e.g. Richard Dyer, The Matter of Images: Essays on Representations (London: Routledge, 2002) who argues that how we treat others is based on how we see them. 12 Graham and Fitzgerald, supra note 4 at 354. 13 Ibid. 14 The significance of this statement is enhanced by the recognition that “children are one of the most governed groups by both the state and civic society.” Malcolm Hill et al, “Moving the Participation Agenda Forward” (2004) 18 Children and Society 77 at 77. 15 Peter Moss, Jean Dillon and June Statham, “The ‘Child in Need’ and ‘the Rich Child’: Discourses, Constructions and Practice” (2000) 20:2 Critical Social Policy 233 at 251. 16 Throughout this thesis, the term “child” or “children” is used within the definition of the current Philippine legal context unless otherwise indicated. By virtue of Republic Act No. 6809 (1989) An Act Lowering the Age of Majority from Twenty-One to Eighteen Years Amending for the Purpose Exec. Order No. 209, and for Other Purposes, the age of majority is currently set at 18 years. This conforms to the UNCRC, supra note 7, art. 1 which defines a child as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”
4 system constructs children and childhood but also how such constructions shape the participation of children as reflected in the opportunities and constraints accorded and/or denied them by laws and policies especially in those contexts where they live and experience their realities. Ultimately, these legal constructions of “the child” and “childhood” impact the material experiences of Filipino children. As Cotterrell reminds us: “Law [has the] power to shape the meaning of social relationships and social institutions and indeed, to define personal identity. Law…shapes expectations, responsibilities and constraints attaching to social statuses.”17
The position of children in the Philippines is quite distinctive. The Philippines is said to be a child-oriented society. The country’s fascination with children is clearly borne out by the oft- repeated aphorism of its national hero, Jose Rizal, who refers to Philippine youth as the “fair hope of my fatherland.”18 Children are a central part of the fabric of the Filipino culture: “Filipinos have many children, they watch them carefully, they love to talk about them…[and] in many senses [the Philippines] is a society which takes great pride in its children.”19 Who would not take pride in their children in a country of more than 92 million20 in which almost 40%21 of its population are children? In this context, it becomes critical then to examine how this “focus” on children is translated into laws and policies and what this means both for children in their claim to “have a say” and for adults in “listening” to these voices of children.
17 Roger Cotterrell, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (England: Ashgate Publishing Limited, 2006) at 99. 18 In his immortalized poem A La Juventud Filipina (To the Philippine Youth) written in 1879, Dr. Jose Rizal wrote: Alza su tersa frente, Juventud Filipina, en este día! Luce resplandeciente tu rica gallardía, Bella esperanza de la Patria Mía! (Hold high the brow serene, O youth, where now you stand; Let the bright sheen of your grace be seen, Fair hope of my fatherland!) 19 George Guthrie and Pepita Jacobs, Child Rearing and Personality Development in the Philippines (University Park: Pennsylvania State University Press, 1966) at 1. 20 Based on the 2010 Census of Population and Housing (CPH) undertaken by the National Statistics Office, the total population of the Philippines as of May 1, 2010 is 92,337,852. National Statistics Office, 2010 Census and Housing Population, online: National Statistics Office, Republic of the Philippines
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In examining the Philippine legal system, the thesis reveals a complex legal framework shaped by competing paradigms of children and childhood that both give meaning to and respond to the engagements of children. Contributing to the complexity is an intricate interplay between the country’s colonial past and its indigenous traditions. On the one hand, the thesis explores a dominant discourse of children and childhood based on universal patterns of development and socialization. This dominant discourse is driven by homogenized, deterministic and romantic notions of childhood that see it as a stage of innocence and dependency “progressing” towards an idealized end. As such, children are viewed as the objects of adult control and influence. The thesis looks at how this dominant discourse serves to universalize a particular conception of “the child” and an “authentic childhood” that effectively shuts out the voices of children by “[creating] a sense of what is expected of young people and what is in effect natural for them.”22 Thus, reliance on a dominant discourse offers, at best, a restrictive image of the child that fails to articulate – whether deliberately or otherwise – the diversity in the lives and experiences of children. McDonald asserts that “[p]olicy has the capacity to speak to a child that may not exist. Or, and perhaps more likely, we may speak to a ‘child’ which is an artefact of the people engaged in making and implementing policy.”23 The danger of an ascribed representation that is restrictive, partial or worse, misleading, is that it dismisses the engagements of children and denies them the opportunity for participation by imprisoning children within a “false, distorted, and reduced mode of being.”24
The thesis demonstrates the heavy influence of this dominant discourse of children and childhood on Philippine laws and policies built around notions of innocence, dependence, incompetence and vulnerability. A major part of this influence implicates Western understandings of children and childhood brought about by more than 400 years of colonial rule in the country. Within this tradition, a particular identity and status is ascribed to children – either “children in danger”25 or “children as dangerous”26 – resulting in the adoption of forms of
22 Roger Smith, Doing Justice to Young People: Youth Crime and Social Justice (Oxon: Willan Publishing, 2011) at 16. 23 Catherine McDonald, “The Importance of Identity in Policy: The Case For and Of Children” (2009) 23:4 Children and Society 241 at 249. 24 Graham and Fitzgerald, supra note 4 at 349. 25 Alan Prout, “Participation, Policy and the Changing Conditions of Childhood” in Christine Hallett and Alan Prout, eds, Hearing the Voices of Children: Social Policy for a New Century (London: RoutledgeFalmer, 2003) at 12. 26 Ibid.
6 action embodied in the rhetoric of rescue and/or control where the role of the child is obscured and minimized. Children in this dominant discourse are defined for who (“the child”) and what (“childhood”) they represent, consequently limiting, if not completely denying, opportunities for their participation. Such a denial of participation is even more pronounced in the legal treatment of children whose childhoods are “different”, for example “children at risk” including “failing” school children, child workers, street children and young offenders, pushing them into even further marginality.
Against this totalizing dominant discourse, the thesis traces the development of an emerging paradigm of children and childhood that espouses a broader understanding of what it means to be a child and of the experience of childhood. The thesis locates this emerging paradigm within two influences: 1) childhood studies which brings with it contextualized understandings of the different experiences of childhood; and 2) the child rights movement that recognizes children as rights bearers most notably enshrined in the UNCRC. In contrast to the dominant paradigm, this emerging paradigm both acknowledges the diversity of children’s lives and recognizes the active role of children in defining and structuring the different contexts where they live their realities. As Prout and James capture: “Childhood, as distinct from biological immaturity, is neither a natural nor universal feature of human groups but appears as a specific structural and cultural component of many societies.”27 Boyden et al further explain:
But childhood embraces a remarkably heterogeneous set of experiences, supported by a broad range of developmental goals. There are many different kinds of childhood in the world today; children in different places face very different challenges, and are raised in very different ways and with very different expectations and outcomes. Different societies have their own ideas about children’s capacities and vulnerabilities, the ways in which they learn and develop and what is good for them and what is bad….Ultimately, children’s well-being and development are influenced more than anything by their own competencies and by the opportunities and constraints, social, cultural, and economic, associated with the particular context they live in.28
The emerging paradigm challenges monolithic and universalistic conceptions of children and childhood. As well, it repositions children by recognizing their active role in the construction of
27 Alan Prout and Allison James, “A New Paradigm for the Sociology of Childhood? Provenance, Promise and Problems” in Allison James and Alan Prout, eds., Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood, 2d ed (London: The Falmer Press, 1997) at 8. 28 Jo Boyden et al, What Works for Working Children (Sweden: Save the Children Sweden, 1998) at 32.
7 their own lives, the lives of those around them and of the societies in which they live.29 Within this reconstruction of the discourse of children and childhood, children’s participation finds meaning and significance: children not only have the rightful and legitimate claim to participate but in fact, have the capacity to do so. It thus follows that the participation of children is firmly anchored in the emerging paradigm, reflecting the main premise of this thesis, i.e., understanding children’s participation requires engagement with the discourse of children and childhood.
But it should be clear that participation does not “obscure the very real differences that exist between children of substantially different ages.”30 As Neale writes: “The social experience, understanding and social contributions of a baby or a pre-school-age child, for example, are likely to be markedly different from those of a young person of secondary-school age or over.”31 At the same time, children of the same age from different communities will also have varying experiences of childhood. As such, childhood is not uniformly linked to biological age. Neither does it occur in a social vacuum. To this end, the emerging paradigm brought about by childhood studies and the child rights movement, relies upon the concept of the evolving capacities of the child32 and a contextualized understanding of childhood. The Committee on the Rights of the Child notes: “Research has shown that information, experience, environment, social and cultural expectations, and levels of support all contribute to the development of a child’s capacities to form a view.”33 Consequently, the emerging paradigm allows for a progressive understanding of childhood where the challenge is, according to Neale, “recognising the strengths and competencies of the youngest members of society and finding ways to nurture these qualities so that young children can flourish.”34
In applying this emerging paradigm to the context of the Philippines, the thesis demonstrates that the Philippine legal system has indeed shown some concrete attraction to the emerging
29 Prout and James, supra note 27. 30 Bren Neale, “Introduction: Young Children’s Citizenship” in Bren Neale, ed, Young Children’s Citizenship: Ideas Into Practice (York, UK: Joseph Rowntree Foundation, 2004) at 10. 31 Ibid. 32 Geraldine Van Bueren, The International Law on the Rights of the Child (The Hague: Martinus Nijhoff Publishers, 1998) posits that the evolving capacities of the child, in fact, is one of the new principles of interpretation underpinning the UNCRC. 33 United Nations Committee on the Rights of the Child, supra note 8 at 11, par. 29. 34 Neale, supra note 30 at 14.
8 paradigm opening opportunities for the participation of children. In the Philippines it has been boldly stated, for example, that the participation of children is “valued as a normative principle.”35 It has even been asserted in policy frameworks that by the year 2025, every child in the Philippines shall be “assertive of her (his) rights as well as those of others and actively participating in decision-making and governance, in harmony and in solidarity with others, in sustaining the Filipino nation.”36 However, the thesis also shows that this attraction to the emerging paradigm is uncertain, tenuous and contested, and that dominant discourses often tend to prevail in the end. As such, opportunities for and actual recognition of children’s participation within the legal system have remained limited and exceptional.
In advocating for broader acceptance of the emerging paradigm, the thesis identifies distinctive understandings of the emerging paradigm in the Philippine context. A central argument of the thesis is that in reconstructing the discourse of children and childhood, the emerging paradigm does not necessarily introduce “new” understandings of children and childhood in the Philippines but, in fact, confirms existing beliefs and practices. The emerging paradigm can be understood as an expression of deeply held indigenous relational values reflecting an interdependent understanding of children and childhood where mutually reciprocal connections between children, adults and their communities are highly valued. Thus the participation of children draws upon an understanding of the child being part of reciprocal and interdependent responsibilities. Within this contextualized understanding of the emerging paradigm, the recognition of children’s participation embodies three important concepts: rights, realities and relationships. Participation involves the recognition of children as rights-bearers; the acknowledgment of children’s realities as lived and experienced by them; and respect for the meaningful and constitutive relationships that children establish.
The conceptualization of children’s participation in terms of rights, realities and relationships distinguishes it from individual choice or autonomy as understood within the liberal tradition.37
35 Sharon Bessell, Adult Attitudes Towards Children’s Participation in the Philippines, online: (2007) Crawford School of Economics and Government The Australian National University
9
Such a conceptualization also responds to fears that the participation of children is disruptive of adult-child relations because it rests upon the idea that children have the freedom to decide for themselves in matters affecting them and can – and should – accept responsibility for their own actions. This autonomous and individualistic understanding of the participation of children was influenced by a strong child liberation movement in the West that started in the 1970s. The so- called child liberationists removed distinctions between children and adults. Farson, for example, has argued that the liberation of children could be realized through their right to self- determination that includes granting them personal, social and political rights.38 Similarly, Holt has argued for “the right of children to do, in general, what any adult may legally do”39 including the right to vote, the right to financial independence and the right to be legally responsible for one’s life.
In advancing its conceptualization of children’s participation, this thesis insists on the recognition and respect of children as children.40 In fact, it recognizes differences between adults and children. What is crucial, however, is how those differences are understood.41 Under the dominant discourse, the difference between children and adults is understood in terms of childhood being incomplete, deficient and a less preferred state. On the other hand, the emerging paradigm, within which children’s participation is situated, appreciates the value of
38 Richard Farson, Birthrights: A Bill of Rights for Children (New York: Macmillan Publishing Co., Inc., 1974). See Michael Wald, “Children’s Rights: A Framework for Analysis” (1979) 12 UC Davis L Rev 255 at 257 who in looking at the dichotomous debates on children’s rights, explains this self-determination: “Children’s rights can only be realized when all children have total freedom to decide for themselves what is best for them, including the right to sexual freedom, financial independence and the right to choose where they shall live. Therefore Farson argues for the elimination of both state and parental control of children.” 39 John Holt, Escape from Childhood (New York: E.P. Dutton & Co., Inc., 1974) at 19. 40 See e.g. Eugeen Verhellen, “Children and Participation Rights” in Pia-Liisa Heilio, Erja Lauronen and Marjatta Bardy, eds, Politics of Childhood and Children at Risk: Provision Protection Participation (Vienna: European Centre for Social Welfare Policy and Research, 1993) at 58 who argues that the idea of children’s rights “is not to treat children and adults in the same way, but to guarantee children that they can be themselves.” Similarly, James and James, supra note 5 at 188 espouse a social space where “children can experiment, can test out their ideas…and can ‘be’ children.” 41 See e.g. Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (New York: Cornell University Press, 1990) at 376-377 who argues that we must think seriously about difference otherwise its meanings will operate without examination or justification. She writes: “The perspective of those who are labeled ‘different’ may offer an important challenge to those who imposed the label, but it is a correlative lens, another partial view, not the absolute truth. It is the complexity of our reciprocal realities and the conflict between our realities that constitute us which we need to understand. Shifting perspectives exposes how a ‘difference’ depends on a relationship, a comparison drawn between people with reference to a norm. And making this reference point explicit opens up the debate. Maybe the reference point itself should change….Changing the ways we classify, evaluate, reward and punish may make the differences we had noticed less significant, irrelevant or even a strength. The way things are is not the only way things could be. By aligning ourselves with the ‘different’ person, for example, we could make difference mean something new; we could make all the difference.”
10 childhood and highlights the interdependency between children and adults. As Knutsson explains:
“Childhood is continuously interacting with other components in the total web of human reality. Through this interaction, children are in their own specific way not only crucial for the production, reproduction and sustainability of human life, but are in a very real sense also co-builders of the social and cultural structures which make up our communities and societies.”42
The remainder of this introductory chapter (Part II) provides a fuller presentation of the concepts and understandings that structure this thesis in its exploration of the discourse of children, childhood and participation.
The first section begins by presenting the dominant discourse of children and childhood. It looks at the foundations of this perspective and how it has deeply influenced understandings of children and childhood. As this dominant approach sees childhood as a universal biologically determined condition, its use of the construct of “the child” embodies an entire category of people – children. Inevitably, “the child” represents the “real” child living an “authentic” childhood. In this manner, actions towards children are based on a totalizing portrayal of “the child” living what is considered a “normal” childhood. This shuts out the voices of children and denies opportunities for and actual recognition of children’s participation.
The second section then traces the development of an emerging paradigm that moves towards a broader understanding of children and childhood. In contrast to the dominant paradigm, this view acknowledges the diversity of children’s childhoods as shaped by the particularities of the real, lived experiences of children. Such acknowledgement, in turn, supports the notion that “children are not simply passive objects, the product of universal biological and social processes, but are active participants in their own social worlds and in those of adults.”43 The thesis locates this emerging paradigm within two influences: 1) childhood studies which brings with it understandings of a more particularistic and contextually-sensitive account of what it means to be a child of a particular culture and society at a specific point in history; and 2) the
42 Karl Eric Knutsson, Children: Noble Causes or Worthy Citizens (England: Ashgate Publishing Limited, 1997) at 42. 43 James and James, supra note 5 at 24.
11 child rights movement that recognizes children as rights bearers most notably enshrined in the UNCRC. In its simplest form, these two forces inform this thesis by advancing an emerging paradigm that not only recognizes and respects the diversity of children’s lives where each childhood experience is equally authentic, but also values children for who they are and what they bring to the definition and structuring of the different contexts where they live their realities. Ultimately, this emerging paradigm involves, as Neale believes, “redefining the place of children within the world and thus making a real difference to all our lives.”44
The final section of this introductory chapter then proceeds to examine in detail the concept of children’s participation and how it is articulated within a contextualized understanding of the emerging paradigm. As the emerging paradigm advanced in this thesis is understood within the context of deeply held indigenous relational values of the Philippines, the participation of children draws on ideas of the child sharing in reciprocal and interdependent responsibilities. The section expounds on this participation of children as an embodiment of three important concepts that underlie a contextualized understanding of the emerging paradigm: recognition of children as rights-bearers; acknowledgment of children’s realities as lived and experienced by them; and respect for the meaningful and constitutive relationships that children establish.
II. THE DISCOURSE OF CHILDREN, CHILDHOOD AND PARTICIPATION
A. THE DOMINANT DISCOURSE OF CHILDREN AND CHILDHOOD
When dealing with children – especially children who do not “obey” their adult carers – adults typically assert that it is futile to engage the child because children simply do not understand “the whys” of a situation.45 Adults simply declare that a child is too young to understand. On the surface, this statement reflects some sense of frustration on the part of adults, especially when children do not “obey” them. However, on another level, it is reflective of what most adults perceive as the “proper” place of the child in a rational grown-up world. Innocuous as it may seem, the statement “a child is too young to understand” carries with it many implications that expose the deep influence of a dominant discourse of children and childhood.
44 Bren Neale, “Conclusion: Ideas Into Practice” in Bren Neale, ed, Young Children’s Citizenship: Ideas Into Practice (York, UK: Joseph Rowntree Foundation, 2004) at 172. 45 See e.g. Elizabeth Scott and Laurence Steinberg, “Blaming Youth” (2003) 81 Tex L Rev 799.
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First, the assertion is based on a definitional marker – age. Age has become a key determinant of what children can or cannot do – or more precisely what children are allowed or not allowed to do. As well, age is the indicator of whether a child is achieving what other children of the same age should be accomplishing. This has facilitated the task of labeling as “normal” those who conform to this set normative concept and as deviants (or failures) those who fall below the competence mark.
Second, the statement suggests universalized notions of what children and childhood are. Owing largely to assumptions about fixed stages of children’s development, it is assumed that every child fits neatly into the overall structure of childhood. Children everywhere go through the same predictable experiences and we have established responses to their actions.
Third, children, unlike adults, do not have the competence to enable them to make rational decisions. Childhood is defined and described as “a period of dependence conflated with an idea of innocence.”46 Children eventually develop into mature and reasonable adults but for the time being, they are simply non-adults.
Finally the statement validates an accepted fact – that adults are empowered to act on children’s behalf in order to protect the latter and their best interests.
These implications provide us with an image of how society views children and childhood.47 Children have been defined not based on their existing identities as manifested in their capacities, experiences and realities but on who (“the child”) and what (“childhood”) they represent. As well, children are simply viewed as non-adults creating the impression that the difference between children and adults “is couched in terms of children being somehow
46 Andy West, “Power Relationships and Adult Resistance to Children’s Participation” (2007) 17:1 Children, Youth and Environments 123. 47 One of the leading authorities in the study of the history of childhood in the West, Philippe Aries, Centuries of Childhood: A Social History of Family Life, translated by Robert Baldick (New York: Alfred A. Knopf, 1962) at 128 argues that in medieval society, the idea of childhood did not exist. There was a lack of awareness of any distinction between the child and the adult. See however David Archard, Children: Rights and Childhood, 2d ed (Milton Park: Routledge, 2004) at 22-23 who writes that “[i]n fact what the past lacked was our concept of childhood. Previous society did not fail to think of children as different from adults; it merely thought about the difference in different ways from ours (italics in the original).”
13 incomplete”48 justifying a lower regard for their status. Such representations not only militate against efforts to promote participation but in fact expose a child to even more vulnerabilities.49
Since the definition of “the child” has been shaped by so many stakeholders – other than children themselves – it is unsurprising that there are a multitude of perspectives endeavoring to influence and control the discourse of childhood. This has led James, Jenks and Prout to assert that:
Childhood…is that status of personhood which is by definition often in the wrong place. Though all people in any society are subject to geographical and spatial prohibitions, whether delineated by discretion, private possession or political embargo, the child’s experience of such parameters is…particularly paradoxical, often unprincipled, and certainly erratic.50
Children have been characterized either as “innocents” living a romanticized carefree and “play- full” life or “brutes” needing to be controlled and disciplined. Inherent in these sentimentalizing and subordinating images is the treatment of children as “blank slates” who eventually develop into mature and reasonable adults.51 As such, dealings with children operate within the framework of “rescue/protection” and/or “control/development.”52
It is indisputable that children lack power in society.53 They suffer specific and often greater harms not only as children but also because they are children.54 The United Nations Children’s Fund (UNICEF) itself reports that children, apart from being excluded from receiving essential services such as health care, education, food and shelter, also face exclusion from participation
48 McDonald, supra note 23 at 244. 49 Ibid at 243 argues that policies tend to “propel particular, negatively characterised identities which culminate in social exclusion, marginalisation and often impoverishment.” 50 Allison James, Chris Jenks and Alan Prout, Theorizing Childhood (Cambridge: Polity Press, 1998) at 37. 51 See generally John Wall, “Human Rights in Light of Childhood” (2008) 16 Int’l J Child Rts 523. 52 See e.g. Prout, supra note 25 who attributes the ambiguity of childhood to two different but problematic images of childhood: “children in danger” and “children as dangerous”. 53 See e.g. Katherine Hunt Federle, “Rights Flow Downhill” (1994) 2 Int’l J Child Rts 343 who argues that the current rights talk is inadequate because it fails to remedy the powerlessness of children. She challenges rights discourse that centers on capacity because it uses the language of the powerful elite and not of the powerless. See also Michael Gallagher, “Foucault Power and Participation” (2008) 16 Int’l J Child Rts 395, who uses a Foucauldian analysis to look at the participation of children in relation to how adults exercise power. 54 Archard, supra note 47.
14 in society.55 This exclusion and invisibility of children is rooted in a construction of children as not possessing the “competence” to enable them to make rational and mature decisions regarding appropriate life choices.56 Since they are cast as weak and vulnerable members of our society, it is not surprising that:
[Their] welfare…[is] based not on asking them what they want or need, but on what other people consider to be the case. It is a philosophy of exclusion and control dressed up as protection, and dependent on the notion that those who are protected must be so because they are deemed incapable of looking after themselves.57
As Verhellen, who talks about this adult control through the concept of “adulto-centricity,”58 describes the process: “adults keep using their power to make their definitions dominant by oppressing the child’s meaning-making capacities or at least by considering them as inferior.”59
1. THE DEVELOPING CHILD
“CHILDHOOD AS NATURE”
Much of our understanding of children and childhood is influenced by developmental psychology. This field of knowledge emerged in the context of the historical development of positivism in the late nineteenth and early twentieth centuries when “the social sciences [were] attempting to emulate the scientific methods of the natural sciences in classifying, ordering, theorizing and predicting the behavior of natural phenomena.”60 Through this developmental approach, childhood is seen as a stage characterized by an inherent lack of skills. This in turn explains the need to control, protect and develop children. The goal then of childhood is to “progress” to adulthood where one is considered a social, moral and legal being. Archard writes:
55 The United Nations Children’s Fund, The State of the World’s Children 2006: Excluded and Invisible (New York: UNICEF, 2005). 56 See e.g. Jeremy Roche, “Children’s Rights: A Lawyer’s View” in Mary John, ed, Children in Our Charge: The Child’s Right to Resources (London: Jessica Kingsley Publishers, 1996). 57 Ann Oakley, “Women and Children First and Last: Parallels and Differences Between Children’s and Women’s Studies” in Berry Mayall, ed, Children’s Childhoods: Observed and Experienced (London: The Falmer Press, 1994) at 16. 58 Verhellen, supra note 40 at 50. 59 Ibid. 60 Allison James and Adrian James, Key Concepts in Childhood Studies (London: Sage Publications, 2008) at 46.
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“if childhood is a stage, it is a stage on the way to adulthood. Adulthood is not a stage. It is the culmination and goal of development, and thus what brings to an end the sequence of stages.”61
One of the leading authorities in this developmental tradition is Jean Piaget. His work has greatly influenced understandings of children, which in turn has shaped the discourses on childhood. In his work, The Psychology of the Child, he asserts that “the mental development of the child appears as a succession of three great periods. Each of these extends the preceding period, reconstructs it on a new level, and later surpasses it to an even greater degree.”62 He describes these successive “periods or stages” as: constant; characterized by an overall structure of which the main behavior patterns can be explained; and integrative and non- interchangeable.63 The most striking feature of his model is the universality of its approach. His subject “child” represents all children in that “the individual subject is an exemplar, the typical representative of the species….Thus the processes, including those of cognitive development are the same in all single individuals, so that one need only study any exemplar and generalize.”64 Piaget’s approach has become the basis of subsequent generations of scholars and researchers. One can find his influences especially in the areas of child rearing and education. Focusing on the context of education, Brown, Metz and Campione65 conclude that the primary influence of the Piagetian theory has been “to define constraints on what it is that children can reasonably be expected to learn and understand.”66
Equally important in Piaget’s work, and characteristic of the developmental model of childhood, is the evolutionary nature of the process of development. Piaget made clear that each of his stages “results from the preceding one, integrating it as a subordinate structure, and prepares for the subsequent one, into which it is sooner or later itself integrated.”67 In the process of moving towards childhood’s goal, there may be “accelerations or retardations” but the sequence remains constant. This has supported the practice of categorizing children whereby those who “measure
61 Archard, supra note 47 at 44. 62 Jean Piaget and Barbel Inhelder, The Psychology of the Child (New York: Basic Books, Inc., 1969) at 152. 63 Ibid at 153. 64 Chris Jenks, Childhood, 2d ed (London: Routledge, 2005) at 23. 65 Ann Brown, Kathleen Metz and Joseph Campione, “Social Interaction and Individual Understanding in a Community of Learners: The Influence of Piaget and Vygotsky” in Anastasia Tryphon and Jacques Voneche, eds, Piaget-Vygotsky The Social Genesis of Thought (UK: Psychology Press, 1996). 66 Ibid at 148. 67 Piaget and Inhelder, supra note 62 at 153.
16 up” to the standard are identified as “normal”; those who go through an “acceleration” are commended as “gifted”; and those who experience “retardations” and fall below the competency mark are labeled as “deviants or failures.”
An underlying certainty in this model of childhood is that development is solely biologically determined. Archard describes this endogeneity as self-propelled in that “it derives its motive force from structures, functions and processes which are rooted within the child’s nature.”68 This understanding directs attention to the relationship between chronological age and various types of physical and psychological traits. Piaget calls this biological fact of construction and transition from one stage to the next as “internal mechanism.” He describes it rather graphically:
It is a process of equilibrium, not in the sense of a simple balance of forces, as in mechanics, or an increase of entropy, as in thermodynamics, but in the sense – which has now been brought out so clearly by cybernetics – of self-regulation; that is a series of active compensations on the part of the subject in response to external disturbances and an adjustment that is both retroactive (loop systems or feedbacks) and anticipatory, constituting a permanent system of compensations.69
The focus on biological determinism has led to a normative standard that all children, at a specific age, “attain” certain capabilities and competencies determinative of the kinds of control and intervention that must be put in place.
2. THE SOCIAL CHILD
“CHILDHOOD AS NURTURE”
Closely related to the discourses on childhood from developmental psychology are the sociological accounts. Jenks explains:
Thus childhood is spoken about as: a ‘becoming’; tabula rasa; laying down the foundations; shaping the individual; taking on; growing up; preparation; inadequacy; inexperience; immaturity, and so on. Such metaphoricity all speaks of an essential and magnetic relation to an unexplicated, but nevertheless firmly established, rational adult world. This adult world is assumed to be not only complete, recognizable and in stasis, but also, and perhaps most significantly,
68 Archard, supra note 47 at 43. 69 Piaget and Inhelder, supra note 62 at 157.
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desirable. It is a benevolent and coherent totality which extends a welcome to the child, invites him to cast off the qualities that ensure his differences, and encourages his acquiescence to the preponderance of the induction procedures that will guarantee his corporate identity.70
Fundamental to the sociological approach is the process of socialization most famously propounded by Talcott Parsons. He defines socialization of the child specifically as the process of acquisition by the child of the patterns of behavior expected of persons in his or her particular society.71 As such, Prout and James posit:
[S]ocialization is the process which magically transforms [children] into [adults], the key which turns the asocial child into a social adult….The child is portrayed, like the laboratory rat, as being at the mercy of external stimuli: passive and conforming. Lost in a social maze it is the adult who offers directions. The child, like the rat, responds accordingly and is finally rewarded by becoming ‘social’, by becoming adult.72
Socialization implies that a child does not become an adult until he or she is taught or trained to become one. Childhood is therefore a preparation for adulthood; and teaching children – including parenting – is understood as the process of shaping children to become “proper” adults. In this sense, socializing children becomes an important role that adults must undertake in the lives of children.
B. THE EMERGING PARADIGM OF CHILDREN AND CHILDHOOD
This thesis looks to two significant developments that have reshaped understandings of children and childhood over the course of the past three decades. First, there has been a surge of critical re-evaluation of the dominant accounts of childhood within many different fields of study including psychology, sociology, anthropology, history and education studies that, in turn, have advocated for a more particularistic and contextually-sensitive account of what it means to be a child of a particular culture and society at a specific point in history. Second, there has also been the emergence of a modern children’s rights movement culminating with the UNCRC. Not only have these influences pushed for an acknowledgement of the diversity of children’s lives but
70 Jenks, supra note 64 at 8. 71 Talcott Parsons, The Social System (London: Routledge, 1991). 72 Prout and James, supra note 27 at 13.
18 they have also espoused a repositioning of children within the different contexts where they live their realities.
1. CHILDHOOD STUDIES
The new understandings of childhood have coalesced around the label of “childhood studies”. With the recognition that homogenized and universalistic conceptions of childhood are inadequate to represent the diversity in the lives of children, a new standard for the study of childhood emerged reflected in the notion that childhood is a social construction influenced by a specific society’s economic, social and cultural processes.73 Generally, Berger and Luckmann have articulated the concept of social construction in their work, The Social Construction of Reality.74 They argue that reality is nothing more than a symbolic universe constructed by the individual. It consists of the “matrix of all socially objectivated and subjectively real meanings; the entire historic society and the entire biography of the individual.”75 Explaining this constructed reality, they write:
Man is biologically predestined to construct and to inhabit a world with others. This world becomes for him the dominant and definitive reality. Its limits are set by nature, but once constructed, this world acts back upon nature. In the dialectic between nature and the socially constructed world the human organism itself is transformed. In this same dialectic man produces reality and thereby produces himself.76
Within the literature of childhood studies, the notion of childhood as a social construction has been understood as a demand for a more particularistic and contextually-sensitive account of what it means to be a child of a particular culture and society at a specific point in history. Thus, McDonald writes:
73 See Sharon Stephens, “Introduction: Children and the Politics of Culture in ‘Late Capitalism’” in Sharon Stephens, ed, Children and the Politics of Culture (New Jersey: Princeton University Press, 1995); See also Allison James & Alan Prout, “Strategies and Structures: Towards a New Perspective on Children’s Experiences of Family Life” in Julia Brannen and Margaret O’Brien, eds, Children in Families Research and Policy (London: The Falmer Press, 1996). 74 Peter Berger and Thomas Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (New York: Anchor Books, 1967). 75 Ibid at 96. 76 Ibid at 183.
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The ‘new’ approach, while not rejecting the notion that children develop and mature biologically and cognitively, suggests instead that any approach which conceptualises childhood as a universal biologically determined condition misses the nuance and difference arising from temporal, historical and social variance in the lives of children. As such, the ‘new’ sociology attempts to overcome the totalizing impetus embedded in traditional accounts in an effort to respond to difference.77
The seminal work of Prout and James78 in childhood studies outlines the new understandings of children and childhood:
1. Childhood is understood as a social construction. As such it provides an interpretive frame for contextualizing the early years of human life. Childhood, as distinct from biological immaturity, is neither a natural nor universal feature of human groups but appears as a specific structural and cultural component of many societies.
2. Childhood is a variable of social analysis. It can never be entirely divorced from other variables such as class, gender, or ethnicity. Comparative and cross-cultural analysis reveals a variety of childhoods rather than a single and universal phenomenon.
3. Children’s social relationships and cultures are worthy of study in their own right, independent of the perspective and concerns of adults.
4. Children are and must be seen as active in the construction and determination of their own social lives, the lives of those around them and of the societies in which they live. Children are not just the passive subjects of social structures and processes.
5. Ethnography is a particularly useful methodology for the study of childhood. It allows children a more direct voice and participation in the production of sociological data than is usually possible through experimental or survey styles of research.
6. Childhood is a phenomenon in relation to which the double hermeneutic of the social sciences is acutely present. That is to say, to proclaim a new paradigm of childhood sociology is also to engage in and respond to the process of reconstructing childhood in society.79
77 McDonald, supra note 23 at 244. 78 Prout and James, supra note 27. 79 Ibid.
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Given the contextualization of childhood, the import of childhood studies is the recognition that “different discursive practices produce different childhoods, each and all of which are real within their own regime of truth.”80 The result is the recognition that there are multiple childhood experiences – influenced by specific contexts – producing multiple realities. Lansdown writes:
What these cultural frameworks offer is a more complex understanding of how children develop and what influences that process. They challenge the view that certain behaviors, thinking and social relationships can be ascribed as ‘normal’ at any given age, and they challenge assumptions that it is possible to prescribe what is likely to be appropriate or harmful to a child’s development without understanding the context in which it arises, the underlying values and the prior experiences of learning.81
Equally important, within the understanding of multiple childhood experiences, this emerging paradigm also recognizes children as active participants in the construction and determination of their own lives, the lives of those around them and of the societies in which they live. This underscores their capacities to express their ideas and contribute on matters and events that affect them. Thus, children are seen not only as moral agents possessing the capacity for moral reasoning, but also as social actors whose dealings and interactions have consequences. As McDonald asserts:
[T]he ‘new’ sociology of childhood…emphasises the competence of children as social actors and as informants about their lives. Children are ‘keen, constructive and thoughtful commentators on their everyday lives at home, at school and in the wider community’ and as such, have a richness of knowledge to offer that would be senseless to neglect (citation omitted).82
2. CHILD RIGHTS AND THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD
The second important development that has led to a reshaping of understandings of children and childhood is the strong influence of the children’s rights discourse culminating in the adoption and near universal acceptance of the UNCRC. Human rights advocates have pushed for the
80 Ibid at 26. 81 Gerison Lansdown, The Evolving Capacities of the Child (Florence, Italy: UNICEF Innocenti Research Centre, 2005) at 12. 82 McDonald, supra note 23 at 245.
21 recognition of children as full-fledged legal persons. According to Verhellen, “the starting point…underlying this demand is the equality of all people, regardless of age.”83 However, she is quick to add that: “the idea is not to treat children and adults in the same way, but to guarantee children that they can be themselves.”84
The Convention itself was initially delayed by a long and difficult drafting process, but the resulting document is nonetheless both ambitious and far-reaching. The potential exists within the UNCRC to advance considerably the rights of children all over the globe.85 That the UNCRC has generated considerable enthusiasm among states is evidenced by the fact that on the day it opened for signature in January 1990, 61 states became signatories and it came into force a mere seven months later.86 The UNCRC has achieved almost universal acceptance and at present it already has 193 Parties;87 only the U.S.,88 Somalia89 and South Sudan (which became an independent State only in 2011) are outside the UNCRC. The UNCRC represents an evolution of attitudes towards, and perceptions of, children and childhood. As James and James underscore, the UNCRC has a “huge importance as a catalyst to cultural change and thus the gradual modification of national laws and the childhoods these construct.”90
83 Verhellen, supra note 40 at 58. 84 Ibid. 85 Deidre Fottrell, “One Step Forward or Two Steps Sideways? Assessing the First Decade of the Children’s Convention on the Rights of the Child” in Deidre Fottrell, ed, Revisiting Children’s Rigts:10 Years of the UN Convention on the Rights of the Child (The Hague: Kluwer Law International, 2000). 86 Ibid. The UNCRC was adopted on November 20, 1989 and entered into force less than a year later on September 2, 1990 in accordance with Article 49. Earlier international human rights instruments entered into force as follows: both the International Covenant on Civil and Political Rights [ICCPR] and International Covenant on Economic, Social and Cultural Rights [ICESCR] were opened for signature on December 19, 1966 but the former entered into force only on March 23, 1976 in accordance with Article 49 while the latter entered into force on January 3, 1976 in accordance with Article 27; the International Convention on the Elimination of all forms of Racial Discrimination [ICERD] entered into force on January 4, 1969, three years after it was adopted on December 21, 1965; the Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW] was opened for signature on March 1, 1980 and entered into force a year and a half later on September 3, 1981 in accordance with Article 27(1). 87 United Nations Treaty Collection, Chapter IV: Human Rights, online: United Nations Treaty Collection
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Notably, for the first time in international law,91 a universal human rights document explicitly recognizes a child’s right to express his or her views freely in all matters affecting him or her with those views being given due weight. Article 12 of the UNCRC provides:
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.92
The right accomplishes two important goals: 1) it draws attention to children’s capacity to act and make meaning of their experiences; and 2) it reframes adults’ responses to children’s actions. As such, these objectives change the position of children from passive recipients of adult care and protection to active rights holders who participate in the construction and determination of their own lives, the lives of those around them and of the societies in which they live. Foley et al. explain the expanding objectives of children’s rights:
While children’s rights has a long history, for much of the time it has focused on the need for policy measures and legal initiatives to better promote the welfare of children. Today, while this is still the dominant meaning, the modern children’s right movement has moved beyond a traditional concern with the protection of children inside and outside the home. Now the issue of the child’s voice or participation is seen as central to the children’s rights project.93
C. ARTICULATING THE PARTICIPATION OF CHILDREN
91 But see Henk van Beers et al, Creating an Enabling Environment: Capacity Building in Children’s Participation, Save the Children Sweden, Vietnam, 2000-2004 (Bangkok, Thailand: Save the Children Sweden, 2006) who posit that: “Even though the CRC might be argued to be the origin of a certain legal notion of children’s participation (in Articles 12, 13 and 15 in particular), the fact that participation applies to children is fundamental to human rights as expressed in UN legal documents from 1945 (and to a certain extent in the earlier documents of the League of Nations). The CRC simply made it specific that, for human beings less than 18 years of age, participation is modified in view of their ‘evolving capacities’”. 92 UNCRC, supra note 7. In 2006, the Committee on the Rights of the Child held a day of general discussion in order to explore the meaning and significance of Art. 12 of the UNCRC. As a result of that day of general discussion, the Committee came out with its General Comment No. 12 (2009) The Right of the Child to be Heard, supra note 8 which outlines the requirements and the impact of children’s participation in different situations and settings. 93 Pam Foley et al, “Contradictory and Convergent Trends in Law and Policy Affecting Children in England” in Christine Hallett and Alan Prout, eds, Hearing the Voices of Children: Social Policy for a New Century (London: RoutledgeFalmer, 2003) at 108.
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This final section now examines in detail the concept of children’s participation through an understanding that makes it meaningful and relevant within the Philippine context. The concern that the participation of children is “ambiguous, uncertain and contested”94 highlights the fact understanding children’s participation entails engaging in the discourse of children and childhood. This means that to fully understand the implications of children’s participation, one has to uncover underlying assumptions, interests and agendas that inform conceptions of who the child is and what the experience of childhood entails as done in the preceding section. Clearly, children’s participation is anchored in an emerging paradigm of children and childhood that resists universalistic conceptions of childhood and repositions children in society. The emerging paradigm challenges the dominant discourse that sanctions a restrictive and totalizing construction of children and childhood by promoting “forms of practice and policy change which will acknowledge, take account of, and respond positively to young people in light of their backgrounds and experience.”95
With the changing construct of childhood and the increasing recognition of the engagements of children brought about by the emerging paradigm, there is a need to clarify exactly what participation means and how it can be achieved in specific contexts. McNeish and Newman, in fact, argue that “the debate has moved on from whether to involve children and young people to how such involvement can be achieved and what approaches are most appropriate in which situations.”96 They identify four issues with respect to this contextualization of children’s participation: 1) addressing attitudinal barriers; 2) creating more participatory structures and processes; 3) achieving inclusive participation and; 4) motivating young children to be involved.97 These factors focus on both the child as the actor-participant and the mechanisms and institutions that promote or prevent the participation of children.
The challenge then in articulating the participation of children is not simply for children to “have a say” but also for adults to “listen to children’s voices.” As the UNCRC reminds us,
94 Graham and Fitzgerald, supra note 4 at 343. 95 Smith, supra note 22 at 169. 96 Diana McNeish and Tony Newman, “Involving Children and Young People in Decision Making” in Diana McNeish et al, eds, What Works for Children? Effective Services for Children and Families (Buckingham: Open University Press, 2002) at 187. 97 Ibid.
24 children’s participation involves not only the right of children to express their views but also that those views be given due weight.98 Graham and Fitzgerald assert:
While inviting children is an important first step in facilitating their participation, the extent to which our own knowledge, values and assumptions are open to question will largely determine the process and outcomes of the encounter, including what we select to report or act upon.99
Lundy writes that “a prerequisite for the meaningful engagement of children and young people in decision making is the creation of an opportunity for involvement – a space in which children are encouraged to express their views.”100 But space alone cannot fully guarantee the involvement of children. Completing it is the assurance that the views expressed by children are given due weight. Lundy explains this in terms of audience and influence. According to her: “Implicit within the notion of due weight is the fact that children have a right to have their views listened to (not just heard) by those involved in the decision-making processes.”101
The emerging paradigm advanced by this thesis, within which the participation of children is located, has a distinctive contextual understanding. This emerging paradigm can be understood as an expression of deeply held indigenous relational values reflecting an interdependent understanding of children and childhood where mutually reciprocal connections between children, adults and their communities are highly valued. Within this contextualized understanding of the emerging paradigm, the participation of children finds application using the same lens of indigenous relational frameworks where the child shares in reciprocal and interdependent responsibilities. The section frames this participation of children as an embodiment of three important concepts that underlie a contextualized emerging paradigm: recognition of children as rights-bearers; acknowledgment of children’s realities as lived and experienced by them; and respect for the meaningful and constitutive relationships that children establish.
98 UNCRC, supra note 7. It should be noted that aside from this core provision on participation, the UNCRC also provides for different forms, conditions and requirements of participation of children such as: Art. 13 on the Right to Freedom of Expression; Art. 14 on Freedom of Thought, Conscience and Religion; Art. 15 on Freedom of Association and Peaceful Assembly; and Art. 31 on the Participation in Cultural and Artistic Life. 99 Graham and Fitzgerald, supra note 4 at 352. 100 Laura Lundy, “Voice is Not Enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child” (2007) 33 British Educational Research Journal 927 at 933. 101 Ibid at 936.
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The participation of children needs to be appropriate to its context; its purpose needs to clear and the processes need to be accessible. The three concepts used in this section to frame children’s participation – rights, realities, and relationships – provide a meaningful and relevant means of effectively implementing participation. Significantly, this framework draws on three definitive studies where children were asked to articulate their own understandings of participation.102
1. PARTICIPATION AS A RECOGNITION OF CHILDREN AS RIGHTS-BEARERS
Participation entails a recognition of the rights of children as individuals with a distinct personhood. Being a rights-holder means that every child deserves respect as a fellow human being. Respect for the intrinsic worth of every person should mean that individuals are not to be perceived or treated merely as instruments or objects of the will of others.103 Supporting this understanding, Neale writes:
It is only when children are recognised as people in their own right that adults can acknowledge that they have their own ways of understanding the world and are capable of defining their own needs, rights, interests and responsibilities. When adults begin to notice children in this new way, they can then begin to appreciate and show some respect for children’s subjective world views. Recognising and respecting children in these ways is the necessary precursor for developing appropriate modes of participation, and knowing how and when (and when not) to employ them.104
As discussed in the previous section, at the core of the emerging paradigm is the understanding that children are capable actors active in the construction and determination of their own lives, the lives of those around them and of the societies in which they live. With such an understanding, children’s participation focuses on the capacities of children by moving away from the normative criterion of competence. Instead of measuring the child’s ability based on an
102 Child 21 Framework, supra note 36; Standing Up for Ourselves: A Study on the Concepts and Practices of Young People’s Right to Participation (Manila, Philippines: ECPAT International, International Young People's Action Against Sexual Exploitation of Children-IYP ASEC, AusAID, UNICEF, 1999) [Standing Up for Ourselves]; Elizabeth Protacio-de Castro et al, “Walking the Road Together: Issues and Challenges in Facilitating Children’s Participation in the Philippines” (2007) 17:1 Children, Youth and Environments 105. 103 Oscar Schachter, “Human Dignity as a Normative Concept” (1983) 77 Am J Intl L 848. 104 Neale, supra note 30 at 9.
26 adultist standard of “competence,” capacity simply recognizes what the child is able to do here and now. Neale explains:
There is an underlying assumption that it is only when (or if) young people can accommodate to the world of adulthood that they will have something worth saying and can be taken seriously. In other words, their inclusion is conditional on their assuming ‘adult’ modes of behaving and communicating.105
Even though children and adults perceive and make meaning of their environments in different ways, this does not make children any less capable nor detract from their personhood. This reconstruction of the child as an actor-participant is borne out by the principle of evolving capacities of the child enshrined in the UNCRC.106 The focus of the dominant discourse on children and childhood has been on the promotion of the “normal” development of children. Within that dominant discourse, children have been measured based on how “un-adult-like” they are. This has entailed the construction of children as essentially vulnerable, dependent and incompetent. The objective then has been to “outgrow” these shortcomings by becoming an adult. As McDonald writes, the dominant paradigm tends to “objectify children, rendering them as immature adults in the making, captured and propelled by an inevitable telos of cognitive, physical, emotional and social development towards some idealised and imagined end.”107 However, within the framework of the UNCRC, the emphasis is now on the child’s evolving capacities which involves:
…a positive point of view, to try to determine which choices and decisions children should and can make at different stages of development, what kinds of responsibility they are able to and can benefit from having and how their decision- making and responsibility-taking capacities can be encouraged, supported and enhanced.108
105 Ibid at 15. 106 UNCRC, supra note 7, art. 5 provides: States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention (emphasis added). See Van Bueren, supra note 32. 107 McDonald, supra note 23 at 244. 108 Målfrid Grude Flekkøy and Natalie Hevener Kaufman, The Participation Rights of the Child: Rights and Responsibilities in Family and Society (London: Jessica Kingsley Publishers, 1997) at 68.
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Recognition of the evolving capacities of the child rests on a progressive understanding of childhood within which a child’s development and social realities are inadequately represented by the institution we refer to as “childhood.” As such, the concept of the evolving capacities of children engages a more expansive understanding of development.109 Although it cannot be denied that children indeed go through a process of development, children in different environments who face diverse experiences have varied paths of evolution in different contexts. Clearly, the transition from childhood to adulthood is “not a linear process from dependence and incompetence to independence and competence.”110 Given this understanding of children, the limitation of age as the sole universal measure to characterize a child becomes apparent. As Neale correctly posits:
[C]hildren do not become any more deserving of recognition, respect or participation simply by virtue of growing older. Nor do they earn it by acquiring competencies, responsibilities, understanding or maturity. These qualities are not the product of biological growth, nor do they develop in a social vacuum. They are born of experiences, activities and interactions with others – in short, they develop through participatory practices.111
Within the Philippine context, participation as a recognition of the child’s right as a person finds meaning not only through the socio-cultural significance attached to the child112 but also through the legal recognition of the child as “endowed with the dignity and worth of a human being from the moment of his conception.”113 In the Philippine value system, dignity and human worth find context in the indigenous principle of dangal which “embodies the moral imperatives of the core value system”114 that is “used to characterize identity, pride and commitment
109 In fact, in giving meaning to Art. 12 of the UNCRC, the United Nations Committee on the Rights of the Child, supra note 8 at 9, par. 20 notes that the phrase ‘States parties shall assure the right to be heard to every child capable of forming his or her own views’ “should not be seen as a limitation, but rather as an obligation for States parties to assess the capacity of the child to form an autonomous opinion to the greatest extent possible. This means that States parties cannot begin with the assumption that a child is incapable of expressing her or his own views. On the contrary, States parties should presume that a child has the capacity to form her or his own views and recognize that she or he has the right to express them; it is not up to the child to first prove her or his capacity.” 110 Samantha Punch, “Negotiating Autonomy: Childhoods in Rural Bolivia” in Leena Alanen and Berry Mayall, eds, Conceptualizing Child-Adult Relations (London: RoutledgeFalmer, 2001) at 34. 111 Neale, supra note 30 at 13-14. 112 See e.g. Felipe Landa Jocano, Filipino Social Organization: Traditional Kinship and Family Organization (Metro Manila, Philippines: Punlad Research House, 1998) who demonstrates that the child is the link between the network of relationships considered vital within the social context including the family, ancestry and spirituality. 113 Presidential Decree No. 603 (1974) The Child and Youth Welfare Code, art. 3, par. 1. 114 Felipe Landa Jocano, Notion of Value in Filipino Culture: The Concept of Pamantayan Punlad Research Paper No. 2 Series on Filipino Values (Quezon City, Philippines: Punlad Research House, 1992) at 16.
28 to…principles…and people.”115 From these understandings, the intrinsic quality and meaning of actions of the child and towards the child take on a significant legal, social and moral value.
In fact, children themselves understand that participation involves an expression of the capacities of each and every child, especially “their capacity to stand up for what they believe in and to accomplish what they set out to do.”116 Consequently, participation acknowledges this distinct identity of children – not merely as non-adults, but as individuals in their own right. This understanding is in keeping with the tradition of the UNCRC which sees the right of the child to have a say and to be listened to as a basic human right.117 The Committee on the Rights of the Child has called this a “new social contract”118 which fully recognizes children as rights- holders. They are not mere passive recipients of adult protective care, but are also active participants in all matters affecting them. Flekkøy and Kaufman explain:
People with the same rights are worthy of the same respect, which is reciprocal and thus involves responsibility in relation to the other as well as to oneself, to listen to and to consider the rights and views of others as well as expressing individual views and rights.119
Brennan and Noggle elucidate this recognition of the right of children as persons through what they refer to as “Equal Consideration Thesis.”120 They write:
[The Equal Consideration Thesis] means that children are to be taken seriously as moral agents, and that their moral claims are not to be discounted merely because they are children….[T]he Equal Consideration Thesis does mean that the moral status of children does not depend merely on their age. The mere fact that they are children does not give them an inferior moral status.
The basis for the Equal Consideration Thesis is the fact that children are persons. Because they are persons, they are entitled to the same moral consideration to
115 Ibid. 116 Standing Up for Ourselves, supra note 102 at 156. 117 See also Liam Cairns, “Participation with Purpose” in E. Kay Tisdall et al, eds, Children, Young People and Social Inclusion: Participation for What? (Bristol, UK: Policy Press, 2006). 118 United Nations Committee on the Rights of the Child, Day of General Discussion on the Right of the Child to Be Heard, 43rd Sess (2006) online: Office of the United Nations High Commissioner for Human Rights
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which anyone is entitled merely in virtue of being a person. In other words, a certain moral status attaches generally to all persons, including children.121
2. PARTICIPATION AS AN ACKNOWLEDGMENT OF CHILDREN’S REALITIES
Participation is also understood as a recognition of the lives that children live and the experiences that they bring with them. Given the contextualization of childhood brought about by the emerging paradigm which recognizes “different discursive practices produce different childhoods, each and all of which are real within their own regime of truth,”122 participation allows children to be open about their realities and have these considered as equally and legitimately influential in defining the experience of childhood. Children are given a voice, especially those, as McDonald asserts, “normally excluded from giving authentic lived accounts of the impact of particular policy domains.”123
Within the Philippine context, participation is understood to be an acknowledgment of diverse realities as manifested in the assertion of children themselves that they have something to share about themselves, their lives, their families, and the communities they live in.124 This demonstrates the fact that each child lives a distinct experience. Thus, when children declare that they “know their own experience best and are capable of articulating issues that affect them,”125 they, in effect, emphasize a diversity of values, needs and aspirations. The challenge then for effective recognition of children’s participation is to respond and reflect these local needs and values. As well, any system must be able to recognize these diverse realities of children rather than to promote a supposedly “authentic childhood experience” that may be irrelevant and meaningless to the lives of children or may push them even more into marginality.
3. PARTICIPATION AS RESPECT FOR THE RELATIONSHIPS OF CHILDREN
An important concept that frames the participation of children is respect for the relationships
121 Ibid at 3. 122 Prout and James, supra note 27 at 26. 123 McDonald, supra note 23 at 245. 124 Standing Up for Ourselves, supra note 102. 125 Ibid.
30 that children establish and maintain. Under the emerging paradigm, an important re-imagining of children is, as Prout and James famously declare, that: “Children are and must be seen as active in the construction and determination of their own social lives, the lives of those around them and of the societies in which they live.”126 With such reconstruction, children are seen not only as moral agents possessing the capacity for moral reasoning, but also as social actors whose dealings and interactions have consequences.127
The understanding of children’s participation under the emerging paradigm does not “suggest that the views of children and young people should be afforded any special status – only that they should be accepted as being valid as the views of other citizens.”128 McDonald asserts: “children’s knowledge is (at a minimum) as valuable, authentic and significant as any other form of social scientific knowledge.”129 Marchant and Kirby sum this up by declaring that adults at a minimum “should listen, seriously consider the expressed views and feed back what action they do (or do not) plan to take.”130 Neale further says that participation is far from claiming “unfettered choice.”131 Rather, it opens opportunities for the child to be involved in collaborative and supportive decision-making.
This understanding of participation shows that the child is really connected to others, with participation being not only an end in itself but also, and as importantly, a connective process. That process genuinely represents the interdependency and mutuality in the relationships of children.132 This understanding of participation has an even greater significance within the Philippine context. The understanding of the participation of children as contextualized within the Philippines takes on a distinctively indigenous character when expressed through the
126 Prout and James, supra note 27. 127 Berry Mayall, Towards a Sociology for Childhood: Thinking from Children’s Lives (Buckingham: Open University Press, 2002) at 21 writes that these new understandings see children as agents whose engagements involve “negotiation with others, with the effect that the interaction makes a difference – to a relationship or to a decision, to the workings of a set of social assumptions or constraints.” 128 Cairns, supra note 117 at 219. 129 McDonald, supra note 23 at 246. 130 Ruth Marchant and Perpetua Kirby, “The Participation of Young Children: Communication, Consultation and Involvement” in Bren Neale, ed, Young Children’s Citizenship: Ideas Into Practice (York, UK: Joseph Rowntree Foundation, 2004) at 155. 131 Neale, supra note 30. 132 Nedelsky, supra note 37; Jennifer Nedelsky, “Reconceiving Autonomy: Sources, Thoughts and Possibilities” (1989) 1 Yale J Law and Fem 7. Similarly, Minow, supra note 41 talks about autonomy in the dimension of interdependencies and interconnectedness of lives.
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Filipino concept of the kapwa.133 As an articulation of participation, kapwa involves the establishment of deep and mutually reciprocal connections between children and adults. In this expression, all the members of the community, including children, are engaged in any given context not only through the exercise of their rights, but also through the establishment of their connections as expressed in reciprocal responsibilities and relationships. Clearly, this manifestation of participation is not meant to assert individual autonomy, but rather to share one’s self with “the other”. Indeed, there is a substantial difference in the use of “the other” in the Western liberal tradition as opposed to “the other” within the Filipino concept of the kapwa. Enriquez explains:
When asked for the closest English equivalent of kapwa, one word that comes to mind is the English word “others.” However, the Filipino word kapwa is very different from the English word “others.” In Filipino, kapwa is the unity of the “self” and “others.” The English “others” is actually used in opposition to the “self,” and implies the recognition of the self as a separate identity. In contrast, kapwa is a recognition of shared identity, an inner self shared with others.134
Indicative of this relational understanding of participation, children themselves view their participation as a “process” wherein all of the participants experience change as a result of their interactions:
Child participation involves interacting with people. It means being able to speak up and stand up for one’s rights. It is sharing and being involved in issues concerning children. It means joining activities and taking on responsibilities based on one’s current capabilities. It means helping others even in a small way.
Child participation means being part of the decision-making in families and communities. This means young people will do their part and responsibilities to improve their communities. This means children take active part in changing their present community and society.135
Equally important, children understand participation as sharing: “sharing one’s opinion and knowledge on important matters…shar[ing] one’s feelings…[and] shar[ing] one’s wishes, to be
133 See full discussion of the kapwa philosophy in Section IV of the Family Chapter. 134 Virgilio Enriquez, From Colonial to Liberation Psychology: The Philippine Experience (Diliman, Quezon City: University of the Philippines Press, 1992) at 43. 135 Standing Up for Ourselves, supra note 102 at 157.
32 listened to, and that these be considered and acted upon.”136 This demonstrates the relational understanding of participation within the Philippine context in that it respects children in ways that make them understand what is happening to them; enables them to participate effectively in decisions affecting their lives, and enables them to define and pursue their goals – all within the context of the relationships they create and maintain. Participation involves a process of sharing identities in which children negotiate complex roles, responsibilities and relationships in their lives. Consequently, the recognition of children’s participation entails the reflection and acknowledgement of this system of interdependencies and interconnectedness of lives.
A concern raised with respect to participation is that the vulnerable child is unnecessarily exposed to even more dangers. This apprehension is, once again, derived from an understanding of participation as a grant of autonomy to children where they are deemed independent and allowed to be left to themselves. From such an understanding, participation endangers the child and consequently becomes diametrically opposed to protection.137 However, the relational nature of participation negates the premise that participation is autonomy, which according to such view exposes the child to undue dangers. Instead of establishing independence from adults, participation, in fact, builds interdependencies where children create connections with the people around them. This contextualization of participation and its impact on the “vulnerable” child simply proves the point of Christensen that: “The construction of children as essentially vulnerable tends to exclude consideration of the cultural and social context in which vulnerability is constituted and to render children’s own understandings of themselves and their bodily experiences as unimportant.”138
It is not denied that children experience vulnerabilities both as children and because they are children. In fact, there are clear mandates to protect children both locally139 and
136 Child 21 Framework, supra note 36 at 14. Similarly, in one of the seminal works on child participation, Roger Hart, Children’s Participation: From Tokenism to Citizenship (Florence, Italy: UNICEF International Child Development Centre, 1992) at 7 defines participation as “the process of sharing decisions which affect one’s life and the life of the community in which one lives.” 137 Michael Freeman, The Moral Status of Children: Essays on the Rights of the Child (The Hague, The Netherlands: Kluwer Law International, 1997) refers to this dichotomy between protection and participation as salvation vs. liberation. 138 Pia Christensen, “Childhood and the Cultural Constitution of Vulnerable Bodies” in Alan Prout, ed, The Body, Childhood and Society (Great Britain: Macmillan Press Ltd., 2000) at 38. 139 1987 Philippine Constitution, art. II, s. 13 provides: The State recognizes the vital role of the youth in nation-building and shall promote and protect their
33 internationally.140 However, the duties of parents, legal guardians or other individuals legally responsible for the child to provide protection and care141 are tempered with the responsibility of providing appropriate direction and guidance to the child in the exercise of his or her rights, in a manner consistent with the child’s evolving capacities.142 Lansdown explains:
The conventional view of protection has been a one-way process, with adults as agents and children as recipients. What is now needed is a more sophisticated approach, in which it is understood as a dynamic process in which adults take responsibility for keeping children safe by listening to and respecting their perspectives, while empowering them to contribute towards their own protection.143
Participation and protection are not mutually exclusive.144 Rather, they are interlinked and as Marchant and Kirby argue, “children’s meaningful participation is inherently protective.”145 With this understanding, the participation of children becomes transformative.
Returning to the statement at the beginning of this chapter, the participation of children
physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. As well, Art. XV, s. 3(2) provides: The State shall defend: (2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development. 140 See e.g. UNCRC, supra note 7, 4th preambular clause citing the Universal Declaration of Human Rights, GA Res. 217A (III), UN GAOR, 3d Sess. Supp. No. 13, UN Doc A/810 (1948) 71, art. 25(2). See also UNCRC, supra note 7, 9th preambular clause citing the Declaration of the Rights of the Child, GA Res. 1386 (XIV), UN Doc A/841 (1959), 3rd whereas clause. These provisions emphasize that children are entitled to special care and assistance by reason of their biological make-up. 141 For example, UNCRC, supra note 7, art. 3(2) provides: States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 142 For example, UNCRC, supra note 7, art. 5 provides: States Parties shall respect the responsibilities, rights, and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. 143 Gerison Lansdown, “International Developments in Children’s Participation: Lessons and Challenges” in E. Kay Tisdall et al, eds, Children, Young People and Social Inclusion: Participation for What? (Bristol, UK: Policy Press, 2006) at 149. 144 In fact, the United Nations Committee on the Rights of the Child, supra note 8 at 18, par. 74 notes that “there can be no correct application of the [best interests of the child] if the components of article 12 [on participation] are not respected.” 145 Marchant and Kirby, supra note 130 at 115.
34 essentially entails an inquiry into how we define children and childhood. More strikingly, the question “who do we think children are?” was posed as a means of engaging the discourse of children and childhood. Under the framework of children’s participation adopted within this thesis, the question becomes whether we recognize and respect the rights, realities and relationships of children or simply rely upon and sanction the construction of “the child” protected in their “childhood”. How we respond will certainly be a reflection of our values as a society. More importantly, it will make a real difference to the lives of children.
III. THE FRAMEWORK APPLIED: FOUR CONTEXTUAL STUDIES
The remaining chapters of the thesis involve the application of the framework of dominant and emerging paradigms to critically analyze the discourse of children and childhood and how these have allowed for the engagement/disengagement of children in four specific areas of Philippine law. The four areas of law chosen represent the principal arenas where we see the lives of children unfold and where their realities are lived and experienced. Laws and policies in these areas thus have a significant impact upon the lives of children. Chapter I looks at the child in the family; Chapter II looks at the child within the educational system; Chapter III examines the child at work and; Chapter IV looks at the child entangled with the youth justice system. In each of these specific contexts, the thesis endeavors to look at how Philippine laws and policies define what being a child means and what childhood entails. This examination, in turn, reveals the engagement/disengagement of the legal system with children through its recognition/non- or misrecognition of their rights, realities and relationships.
As indicated at the beginning of this introductory chapter, in each context the thesis will demonstrate the heavy influence of the dominant discourse of children and childhood on Philippine laws and policies built around notions of innocence, dependence, incompetence and vulnerability. At the same time, it will be shown that the Philippine legal system has indeed shown some concrete attraction to the emerging paradigm, opening up opportunities for the participation of children. However, this attraction to the emerging paradigm will be shown to be uncertain, tenuous and contested, and dominant discourses often tend to prevail in the end. As such, opportunities for and actual recognition of children’s participation within the legal system have remained limited and exceptional. In each chapter, the thesis advocates for broader
35 acceptance of the emerging paradigm, and sketches the outlines of a legal framework for participation which is both appropriate to each specific context and, at the same time, broadly consistent with indigenous relational values.
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CHAPTER I
THE CHILD, THE FAMILY AND THE LAW
As the chief agency of socialization, the family reproduces cultural patterns in the individual. It not only imparts ethical norms, providing the child with his first instruction in the prevailing social rules, it profoundly shapes his character, in ways of which he is not even aware. The family instills modes of thought and action that become habitual. Because of its enormous emotional influence, it colors all of a child’s subsequent experience.1
Social historian Christopher Lasch opens his oft-cited work, Haven in a Heartless World: The Family Besieged2 with the above quoted passage. It sets up the critical role of the family in society “to which the work of socialization was once confined.”3 This focus on the socialization role of the family indicates a narrative between the child and the family where “the child is an open window to the family, and the family is portrayed in the child.”4 The same statement of Lasch introduces this chapter but for a different reason. It provides the context for a re- examination of the status and identity of children within a dominant discourse of “the family” and socialization.
The rhetoric of “family as the site of socialization” has influenced much of our thinking about the family and even more about children and childhood. Because family socialization is viewed exclusively as the “adult concern for the reproduction of social order”5 where the asocial child is magically transformed into a social adult,6 the result is that children are “positioned simply as [culture’s] disembodied vehicle in the next generation, as if, through socialization, culture was
1 Christopher Lasch, Haven in a Heartless World: The Family Besieged (New York: Basic Books, Inc., 1977) at 3. 2 Ibid. 3 Ibid at 189. In fact, Lasch further argues at 130 that “the only function of the family that matters is socialization.” 4 Dimitra Makrinioti, “Conceptualization of Childhood in a Welfare State: A Critical Reappraisal” in Jens Qvortrup, et al, eds, Childhood Matters: Social Theory, Practice and Politics (England: Avebury Ashgate Publishing Limited, 1994) at 268. 5 Alan Prout and Allison James, “A New Paradigm for the Sociology of Childhood? Provenance, Promise and Problems” in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood, 2d ed (London: The Falmer Press, 1997) at 13. 6 Ibid.
37 literally able to be imprinted upon the child.”7
This chapter demonstrates how the preferential status accorded by the Philippine legal system to the family and its socialization role8 has been used to justify an absolutist model of adult authority9 in the family where power and control are exercised over the “person and property” of the child. Thus, legal norms involving engagements of the members of the family e.g. support, guardianship, discipline, etc. have been exclusively understood as rights, duties and obligations of parents towards their children relegating the latter to the status of passive recipients of the family’s – specifically adults’ – socialization. Under such adult authority, children are constructed as dependents and incompetents whose experience of the family is limited to being “brought up,” “taught” and “developed.” This means that the involvement of children in legal norms within the family is interpreted simply as an occasion to carry out the expectations imposed upon them by the family. Such a legal understanding not only ignores the role of children and the value of their engagements within the family but also obscures the mutually interdependent relationships between children and their families which has deep foundational basis in the Philippines.
A fundamental argument of the chapter is that the Philippine family is more than an institution characterized by a structure of influence and obligations. The chapter argues that to fully grasp the family as an important context within which children live their lives, it must be understood as a system of deep and profound sharing of identities embodied in the indigenous relational framework of pakikipagkapwa.10 With such an understanding of the family, the engagements of
7 Allison James & Alan Prout, “Strategies and Structures: Towards a New Perspective on Children’s Experiences of Family Life” in Julia Brannen & Margaret O’Brien, eds, Children in Families Research and Policy (London: The Falmer Press, 1996) at 42-43. 8 The significance of the socialization role of the family in the Philippines is embodied in the entrenched state policy of “the future of humanity passes by way of the family.” Joaquin Bernas, SJ, The Intent of the 1986 Constitution Writers (Quezon City: Rex Bookstore, 1995) at 1128. 9 Philippine law uses the concept of parental authority, which will be discussed in detail in Section III, but this does not necessarily mean that authority is limited to parents. In fact, the Family Code, infra note 53, art. 216 enumerates the persons who may exercise substitute parental authority over children in this order: the surviving grandparent, the oldest brother or sister, over 21 years of age or the child’s actual custodian, over 21 years of age. In addition, in case of foundlings, abandoned neglected or abused children and other children similarly situated, parental authority “shall be entrusted in summary judicial proceedings to heads of children’s homes, orphanages and similar institutions duly accredited by the proper government agency.” Ibid, art. 217. As well, the school, its administrators and teachers, or the individual, entity or institution engaged in child care shall have “special parental authority and responsibility” over the minor child while under their supervision, instruction or custody. Ibid, art. 218. 10 Understood within the Philippine value system, pakikipagkapwa involves a sharing of one’s self thus it embodies much more than mere interaction. This concept will be discussed in detail in Section IV.
38 its members as articulated within the legal system are interpreted as reciprocal and interdependent. Seen in this manner, the intrinsic quality and meaning of actions of the child and towards the child take on a significant legal, social and moral value. Legal norms then are not simply interpreted as obligations imposed upon the child but are construed as responsibilities undertaken by the child in this network of relationships. This recognizes the child as an active participant in defining what the family is and what it means to be a child in that family.
Section I begins by examining the dominant paradigm of the family with its socialization role and the corresponding constructions of children and childhood. Because the family is viewed as the fundamental social institution, it has been ascribed with its own rights where the rights of its members, particularly those of children, have been subsumed under it. Inherent in this understanding of the family is the dominant theory of childhood that constructs children as dependents and incompetents. With these understandings, parents are given the obligation and duty – in fact, guaranteed the right – to bear and rear their child while the child is reduced to the only family member upon whom influence is exerted.
Section II then explores an emerging paradigm where children are recognized as persons to be considered in their own right who are worthy of equal consideration. Through the perspectives of childhood studies and children’s rights, children are acknowledged as active participants in the structuring and defining of the family where they are understood as “complex actors in, and interpreters of, a complex world”11 whose “forms of engagement” translate into the “strategies of action” that they utilize within the family.12 Consequently, children are not to be constructed merely as passive recipients of the family’s socialization. Such a reconstruction of children leads to a shift in our understanding of socialization that it is not just about how adults influence children but it is also as much about how children shape the family through their “mov[ing] in and out of relative independence and competence in relation to different people.”13
Section III moves on to consider the current legal understandings of the family in the Philippines and proceeds to demonstrate how these have been heavily influenced by the
11 James and Prout, supra note 7 at 49. 12 Ibid. 13 Samantha Punch, “Negotiating Autonomy: Childhoods in Rural Bolivia” in Leena Alanen and Berry Mayall, eds, Conceptualizing Child-Adult Relations (London: RoutledgeFalmer, 2001) at 34.
39 dominant paradigm. In the current legal framework, engagements of members of the family are understood through the legal concept of parental authority where parents exercise control over their children. Thus, the rights, duties and obligations of parents towards their children simply echo the dominant understanding of the socialization task of families i.e. to magically transform the asocial child into a social adult14 as embodied in the legal duty to “prepare the child for the responsibilities of adulthood.” In sanctioning the family’s performance of its socialization function, the legal system effectively constructs children as passive, dependent and vulnerable individuals in need of this familial influence.
Having considered the current legal understandings of the Philippine family in Section III, Section IV then engages in a critical analysis of these conceptions of the family. Examining the nature and basis of the Philippine family reveals deeply entrenched indigenous concepts of relationships that are, in fact, embedded within the legal system. Such a re-imagining of the family provides an even more solid anchorage for the emerging paradigm where both the child and the adult mutually influence each other in their relations within the family. Thus, the family and its role of socialization are not based merely on the assumption of the dependency of the child on the adult. This section demonstrates that as opposed to the dominant paradigm based on a scheme of influence and obligations (as manifested in the concepts of parental authority and child obedience), the emerging paradigm draws upon the relational nature of the family to recognize the active – in fact, essential – role of children in defining and structuring the fundamental nature of the family.
With the insights provided in Section IV, Section V goes into an analysis of specific legal norms involving engagements of the members of the family that have been interpreted and understood based on the dominant paradigm. The section specifically looks at: 1) support; 2) guardianship; 3) family home; 4) family affairs, child rearing and discipline; and 5) parental consent and advice. These legal concepts have been typically understood from the adult perspective where they are interpreted as rights, duties and obligations of parents towards their children. Because of the heavy influence of the dominant paradigm as manifested in the pervasive legal concept of parental authority, this section argues that the acknowledgment of the participation of children in these specific norms is virtually non-existent. At most, the engagement of children is limited
14 Prout and James, supra note 5.
40 to being passive recipients of adult socialization upon whom expectations are demanded. This obscures the child’s role within the family, trivializes the child’s identity, and forecloses the possibility of allowing children opportunities to participate. The section proposes an interpretation of the law that makes use of the relational nature of the family where the child is a critical strand in this network of interdependencies. What this means is that the engagements of children are interpreted as responsibilities taken on by them in the intimate sharing of collective values that define and structure the Philippine family. With this legal understanding, children are thus recognized to play an active and fundamental role in the family. Consequently, children are reconstructed as active partakers in their own lives, the lives of those around them and of the societies in which they live giving substance to the emerging paradigm.
I. THE DOMINANT PARADIGM
The family is commonly viewed as the fundamental social institution. Because of this status, the family is understood to possess its own rights. In fact, this overarching significance accorded to the family has been translated into a familial rights doctrine. What this familial right involves, Nauck writes, is that “the child has the right to be nurtured in the intimate existence of the family, and the family has the right to do the nurturing.”15 According to Archard, the right of the family really translates into parental rights. He maintains that the familial right is the entitlement of “the adults of a family to make important decisions in the rearing and educating of the children within that family.”16 Guggenheim accepts this characterization of parental rights as familial rights in that children reciprocally share the rights of their parents.17 He argues that the right of the family is not just about the rights of parents to bear and rear their children but it is also the right of the children to remain in their families. Thus, for Guggenheim, the most important legal and political justifications for the rights of children lie within the rights of parents and the family.18 These understandings highlight the attempt to subsume the issues of
15 Barbara Nauck, “Implications of the United States Ratification of the United Nations Convention on the Rights of the Child: Civil Rights, the Constitution and the Family” (1994) 42 Clev St L Rev 675. Closely related to this familial rights doctrine, Western liberal traditions have also attributed to the family a “familial privacy” where the state is barred from interfering in its affairs. See e.g. Joseph Goldstein, Anna Freud and Albert Solnit, Beyond the Best Interests of the Child (New York: The Free Press, 1973) and Joseph Goldstein, Anna Freud and Albert Solnit, Before the Best Interests of the Child (New York: The Free Press, 1979). 16 David Archard, Children: Rights and Childhood, 2d ed (Milton Park: Routledge, 2004) at 167. 17 Martin Guggenheim, What’s Wrong with Children’s Rights (Cambridge, Mass.: Harvard University Press, 2005) at 37. 18 Ibid at 17.
41 children under those of the family’s. Thus, it came to be that what is “good” for the family is also in the child’s best interests.
The preferential status accorded to the family – or as shown above, the adults within the family – is closely tied to its role of socialization. As the major site of socialization, the family has the heavy responsibility of transforming the “passive representatives of the future generation.”19
Guggenheim explains:
Because childrearing involves considerably more than providing sustenance to infants and children…it is impossible to raise children without teaching them at the same time. Moreover, it is inconceivable to teach them anything without shaping their values and outlook in life. Everything that goes on in a household is fodder for learning. Well beyond speech and communication skills, we teach our children manners, and inculcate them with lifelong values. And, of course, religion is something into which children are raised. Parents are free to attempt to inculcate 20 their preferred religious beliefs or disbeliefs in their children.
There are three clear implications of this family socialization rhetoric on understandings of the child which are consistent with the dominant paradigm of children and childhood: first, children are the passive recipients of this socialization function; second, because it involves transformation, the child who is the object of socialization is seen as “different” from the adult upon whom the function rests; and third, socialization assumes universal truths about children and childhood.
First, although the family is described as “one of the most studied, debated and analysed concepts in the social sciences,”21 an examination of discourses on the family reveals that adults are consistently the subject of inquiry. Children are considered only in relation to the actions of the adults and how they are “socialized” within the family. James and Prout observe:
19 Prout and James, supra note 5. 20 Guggenheim, supra note 17 at 24. Because this childrearing function of the family involves forming the values, interests, ideas, and religious beliefs of the next generation, Guggenheim argues that “we should expect American law to insist, as the Supreme Court has, that the state cannot enter the domain of family life.” But see Frances Olsen, “The Myth of State Intervention in the Family” (1985) 18 U Mich J L Reform 835 at 843 where she argues: “Even today the state is often expected to enforce parents’ authority over their children. To many who endorse hierarchical family relations, ‘nonintervention’ seems to mean simply state support for the family member with power. ‘Nonintervention’ loses much of its appeal if one thinks of it as mere reinforcement of the status quo.” 21 Heather Montgomery, “Children and Families in an International Context” in Heather Montgomery and Mary Kellett, eds, Children and Young People’s Worlds: Developing Frameworks for Integrated Practice (UK: The Policy Press, 2009) at 77.
42
Traditional texts on the family, invariably made but passing mention to children, subsuming their experiences of family life under index entries such as ‘child- rearing’, ‘socialization’ and ‘education’ or, alternatively, linking children with other adult-centred activities, viz, children ‘and conjugal roles’, ‘and experts’, ‘and importance to parents’ and children ‘and punishment’. Clearly, whilst children might have been seen within family sociology they were certainly not meant to be heard (citations omitted).22
By focusing on the familial role of socialization, children are reduced to a passive role of recipients of this family function. Thus, children are merely seen as the family member upon whom influence is exerted. James and Prout describe this restricted role of children in the socialization process: “children simply ‘take on’ the mantle of childhood, destined, in their turn, to become adult socializers of other children through later ‘taking on’ the familial role of parent.”23
Second, because of the understanding of socialization as the transformation of children, McDonald writes: “children are drawn along a trajectory leading them to the (preferred and dominant status) of adult.”24 This has allowed the difference between adults and children to be “couched in terms of children being somehow incomplete.”25 As Archard argues: “if childhood is a stage, it is a stage on the way to adulthood. Adulthood is not a stage. It is the culmination and goal of development, and thus what brings to an end the sequence of stages.”26 In characterizing this difference between adults and children, Prout and James write:
Children are regarded as ‘immature, irrational, incompetent, asocial [and] acultural’ with adults being ‘mature, rational, competent, social and autonomous’. They are, in effect, two different instances of the species. Socialization is the process which magically transforms the one into the other, the key which turns the asocial child into a social adult.27
Third, socialization and its intended effects happen as expected because children everywhere go through a universal stage of development. James and Prout write: “The child, indeed any child, [is] cited as an unproblematic representative of a largely undifferentiated category.”28 This
22 James and Prout, supra note 7 at 41. 23 Ibid at 43. 24 Catherine McDonald, “The Importance of Identity in Policy: The Case For and Of Children” (2009) 23:4 Children and Society 241 at 245. 25 Ibid at 244. 26 Archard, supra note 16 at 44. 27 Prout and James, supra note 5. 28 James and Prout, supra note 7 at 43.
43 reflects the strong influence of the developmental paradigm of children and childhood that rests on the themes of naturalness and universality. Mayall explains:
The supremacy of developmentalists’ ideas of children and childhood has allowed us to bask in the comfortable view that children are the same children wherever they are. Their emotional, relational and cognitive competences and incompetences, relate to their age and their stage. In this vision, children can be observed and described as having attained a certain level of development and competence whatever the social context, rather than perceived as people whose competence, confidence, knowledge and interactions vary according to the social context.29
II. THE EMERGING PARADIGM
Innocuous as it may seem, the observation that children are typically seen as part of the family has implications on how society treats children. When children are merely “seen” and not heard and “a part of the family” without an identity of their own, they are construed as passive recipients of the family socialization. This becomes the basis for their less preferred status and peripheral identity within the family. Halldén writes:
Often the family is studied as a sociological arena in which the child is the family member upon whom influence is exerted. It is adults who are the subject of sociological inquiry, it is their actions that are studied in relation to the child. Even when children are included in the research, they are seldom studied in their own 30 right.”
The challenge then for both childhood studies and the children’s rights movement has been to move the study of childhood “from being the study of children as passive beings structured by the social context of the family…to the study of children’s active part in that structuring.”31 It is through this approach that children are studied “on their own” with a recognition of their personhood and the active role that they play within the family. This involves “moving on from the narrow focus of socialisation and child development (the study of what children will become) to a sociology that attempt[s] to take children seriously as they experience their lives in
29 Berry Mayall, “Children in Action at Home and School” in Berry Mayall, ed, Children’s Childhoods: Observed and Experienced (London: The Falmer Press, 1994) at 118. 30 Gunilla Halldén, “The Family – A Refuge from Demands or an Arena for the Exercise of Power and Control – Children’s Fictions on Their Future Families” in Berry Mayall, ed, Children’s Childhoods Observed and Experienced (London: The Falmer Press, 1994) at 63. 31 James and Prout, supra note 7 at 45.
44 the here and now” (emphasis in the original).32
Childhood studies, according to James and Prout, allows us to recognize that:
[T]he ways in which children are thought about vary cross-culturally and through time and that, therefore, the biological base of childhood should not be awarded any over-determining role in explaining how particular children live through that period in the life course known as childhood.33
Such a shift in our understanding of children in families allows us to recognize how different children live, navigate and negotiate their childhoods within their own families and those of others that they interact with. With this shift in understanding also comes the reconstruction of children as social actors and informants about their lives. This recognition, in turn, allows us to respect each childhood experience as equally authentic challenging monolithic and universalistic conceptions of “what is expected of young people and what is in effect natural for them.”34
Equally significant, the children’s rights discourse repositions children as persons to be considered in their own right who are entitled to equal consideration. In this sense, children are “valued” for who they are and what they bring to the definition and structuring of the family. A child is an end by herself and not merely a means for another’s end.35
In this emerging paradigm, it is clear that the family remains an important context within which to locate the child. To disregard the family would fail to adequately account for the total experience of the child.36 Thus, one strategy according to Brannen and O’Brien is “to recontextualize children within their families, to begin to prioritize their interests and perspectives, and to take account of the permeability of the boundaries between families and the outside world and the ways in which children negotiate these.”37 Essential in this re-
32 Virginia Morrow, “Children, Young People and their Families in the UK” in Heather Montgomery and Mary Kellett, eds, Children and Young People’s Worlds: Developing Frameworks for Integrated Practice (UK: The Policy Press, 2009) at 63. 33 James and Prout, supra note 7 at 44. 34 Roger Smith, Doing Justice to Young People: Youth Crime and Social Justice (Oxon: Willan Publishing, 2011) at 16. 35 Thomas Murray, The Worth of a Child (Berkeley: University of California Press, 1996). See also Oscar Schachter, “Human Dignity as a Normative Concept” (1983) 77 Am J Int’l L 848. 36 James and Prout, supra note 7. 37 Julia Brannen and Margaret O’Brien, “Introduction” in Julia Brannen and Margaret O’Brien, eds, Children in Families: Research and Policy (London: The Falmer Press, 1996) at 1.
45 contextualization is a shift in our understanding of the family socialization and the role of the child in such a process.
Highlighting the significance of the family is hardly surprising considering that it is usually the first social unit to which the child is exposed.38 It is an institution where many social interactions – or using Mackay’s characterization of adult-child interactions, “cultural assimilation”39 – occur between adults and children. In fact, the United Nations Convention on the Rights of the Child (UNCRC), although heralding the recognition of the rights of children, recognizes the primary role of the family in any society. In the UNCRC, the family is afforded the necessary protection and assistance as the fundamental group of society and the natural environment for the growth and well-being of all its members, particularly children.40 The UNCRC also recognizes the importance of a family environment for the full and harmonious development of the child and her personality.41 Even the principal international human rights instruments acknowledge the family as the natural and fundamental group unit of society entitled to protection.42 Van Bueren writes:
Although international law recognises childhood as a separate status, it does not follow that the rights of the child can be best protected when treated in isolation from the rest of the family. International law acknowledges the family both as the basic unit of society and as the natural environment for the growth and well being of the child. Hence how international law defines the family is critical to the child….To be able to protect the rights of children effectively, international law must be both sufficiently flexible to accommodate a range of different family and community structures and values, whilst simultaneously enshrining universally- agreed minimum standards on the international legal rights of the child.43
38 But see Archard, supra note 16 at 166 who proposes a “diffusion of parenting” which means that: “even where the family still retains its social role as the main form of childrearing, responsibility for upbringing should not continually and exclusively fall upon the parents. Parenting may be ‘embedded’ in a network of kin and community, who can assume – occasionally and to varying degrees – parental responsibility.” See also discussion in supra note 9. 39 Robert Mackay, “Conceptions of Children and Models of Socialization” in Hans Peter Dreitzel, ed, Recent Sociology No. 5 Childhood and Socialization (New York: Macmillan Publishing Co., Inc., 1973) at 31. 40 Convention on the Rights of the Child, 1577 UNTS 3 (entered into force 2 September 1990) [UNCRC], 5th preambular clause. 41 Ibid, 6th preambular clause. 42 Universal Declaration of Human Rights, GA Res. 217A (III), UN GAOR, 3d Sess. Supp. No. 13, UN Doc A/810 (1948) 71, art. 16; International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) [ICCPR], art. 23(1); International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 993 UNTS 3, (entered into force 3 January 1976) [ICESCR], art. 10(1). 43 Geraldine Van Bueren, The International Law on the Rights of the Child (The Hague: Martinus Nijhoff Publishers, 1998) at 67.
46
Clearly, protection of the family is tempered with the responsibility of providing appropriate direction and guidance to the child in the exercise of rights, in a manner consistent with evolving capacities. As the UNCRC provides:
States Parties shall respect the responsibilities, rights, and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.44
With the recognition that the family plays an essential role in the life of a child, the succeeding sections of the chapter carefully look at the socio-legal understandings of the Philippine family and how these effectively construct a particular status and identity for children. Not only do such constructions define the place of the child within the family but they also shape the experience of “being a child” in the family. As Ncube stresses, “the family constructs the norms and values which define its conception of childhood and its entitlements and obligations.”45
The immediately succeeding section looks at how the preferential status accorded by the Philippine legal system to the family has been translated to a familial right characterized by a structure of influence and obligations. Informed largely by the dominant paradigm, this view of the family utilizes a model of parental authority where the adult exercises control over the child. Thus, the child is constructed as a passive recipient of this adult influence.
III. THE DOMINANT PARADIGM AND THE PHILIPPINE FAMILY:
THE RHETORIC OF PARENTAL AUTHORITY
In the Philippines, the family occupies an almost sacred social position. The law is very explicit in its esteem for the family. In its Declaration of Policies and Principles, the 1987 Philippine
44 UNCRC, supra note 40, art. 5. See United Nations Committee on the Rights of the Child, General Comment No. 12 (2009) The Right of the Child to be Heard, CRC/C/GC/12, 51st Sess (2009) at 21, par. 91. The Committee re- asserts that: “The Convention recognizes the rights and responsibilities of parents, or other legal guardians, to provide appropriate direction and guidance to their children…but underlines that this is to enable the child to exercise his or her rights and requires that direction and guidance are undertaken in a manner consistent with the evolving capacities of the child.” 45 Welshman Ncube, “The African Cultural Fingerprint? The Changing Concept of Childhood” in Welshman Ncube, ed, Law, Culture, Tradition and Children’s Rights in Eastern and Southern Africa (Brookfield, Vermont: Ashgate, 1998) at 13.
47
Constitution46 enshrines the “sanctity of family life” and enjoins its protection and strengthening as a basic autonomous social institution.47 It also provides: “The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.”48
More emphatically, the supreme law of the land devotes an entire separate article to the family,49 according it the same stature as the national territory,50 the Bill of Rights51 and the three branches of government,52 among others. This move to enshrine the provisions relating to the family in a separate article highlights the importance given to the family in Philippine society. Supporting this constitutional mandate, the Family Code of the Philippines53 which took effect in 1988 asserts:
The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect.54
These legal provisions are reinforced by the strong social recognition that the family is “perceived to be a very important aspect of the Filipino’s life as happiness is closely tied to a satisfying family situation.”55
46 The 1987 Constitution of the Republic of the Philippines [Constitution]. The 1987 Philippine Constitution was approved by a 1986 Constitutional Commission. It was later ratified and proclaimed in force in February 1987. This Constitution comes after a bloodless “People’s Power” revolution in February 1986 where the then-President Ferdinand Marcos was ousted from the presidency. The Constitution prior to the 1987 Constitution was the 1973 Constitution although there was an interim 1986 Freedom Constitution promulgated immediately after the 1986 revolution by the then newly-installed President Corazon Aquino. 47 Ibid, art. II, s. 12. 48 Ibid, art. XV, s. 1. 49 Ibid, art. XV (entitled The Family). 50 Ibid, art. I (entitled National Territory). 51 Ibid, art. III (entitled Bill of Rights). 52 Ibid, arts. VI, VII, VIII (entitled Legislative, Executive and Judicial Department respectively). 53 Executive Order No. 209 (1988) The Family Code of the Philippines [Family Code]. The Family Code was enacted through Executive Order by then President Corazon Aquino and took effect on August 3, 1988. It was enacted primarily to govern family law in the country. Through its enactment, it amended (but where there is no inconsistency, it supplemented) provisions of the Civil Code of 1950 and the Child and Youth Welfare Code of 1975 specifically relating to the family including marriage, property relations, children and other areas relating to the law on family. 54 Ibid, art. 149. 55 Michelle Ong, “The Role of the Family in Philippine Society and in the Protection of Children’s Rights” online: Child Protection in the Philippines: Philippine Resource Network
48
In articulating the family, the married couple is highlighted to a large extent because according to the legal system, at the core of the family lies the “inviolable social institution” of marriage.56 In fact, in the drafting of the Constitution, it was observed that “family life is premised on married life.”57 Consequently, it now provides that: “Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.”58 This legal union determines a whole gamut of status and identity including those of children born within and out of marriages.59
Because of the preferential status accorded to the family by the legal system, it has been distinguished as an institution conferred with its own rights. As a protected institution, there is an understanding that the rights of the members of the family, specifically children, are to be protected through this familial right. Thus, in the proceedings of the drafting of the Constitution, there was an acknowledgment of the common understanding that: “Differentiating families from people [in turn, children] is making a mockery of the [Philippine] Constitution.”60
One of the main reasons why the family has been accorded this favored status is embodied in the deeply entrenched belief “the future of humanity passes by way of the family.”61 This way, the Philippine legal system acknowledges the socialization role of the family toward the child. The Constitution refers to this as “the natural and primary right and duty of parents in the
9.45 out of 10; health the second most important source, with a score of 8.95 and followed by religion with 8.59. Politics is the least important, scoring only 5.84. Dr. Romulo Virola, “How Happy are Pinoys with Sex?” online: National Statistical Coordination Board
49 rearing of the youth for civic efficiency and the development of moral character.”62 In its basic legal framework of children and childhood as embodied in the Child and Youth Welfare Code,63 the law provides:
The molding of the character of the child starts at the home. Consequently, every member of the family should strive to make the home a wholesome and harmonious place as its atmosphere and conditions will greatly influence the child’s development.
Attachment to the home and strong family ties should be encouraged but not to the extent of making the home isolated and exclusive and unconcerned with the interests of the community and the country.
The natural right and duty of parents in the rearing of the child for civic efficiency should receive the aid and support of the government.
Other institutions, like the school, the church, the guild, and the community in general, should assist the home and the State in the endeavor to prepare the child for the responsibilities of adulthood (emphasis added).64
As recognized by law, “the home” plays a central role in raising children and “prepar[ing them] for the responsibilities of adulthood.”65 The task of raising children, in fact, falls squarely on the parents thus the language: “the natural right and duty of parent in the rearing of the child.”66 This function of parents is articulated in law by the legal norm of parental authority derived from the Roman law concept of patria potestas.67 Significantly, parental authority shapes much of the identity and status of children. For example, unlike the UNCRC which defines a child simply as “every human being below the age of 18 years,”68 Philippine law does not merely rely on the age of majority. The law provides a definition of children by referring to the condition of emancipation in relation to parental authority.69 Thus, in the eyes of the law, a child is
62 Constitution, supra note 46, art. 2, s. 12. 63 Presidential Decree No. 603 (1974) The Child and Youth Welfare Code [Child and Youth Welfare Code]. The Child and Youth Welfare Code was enacted through presidential decree by then President Ferdinand Marcos. It was signed in December 1974 and became effective in June 1975. At the time of its enactment, the Philippines was under Martial Law having been declared by the president on September 21, 1972. The Decree codifies laws on rights and responsibilities of children and parents as well as substantive and procedural provisions on children with respect to the Home, Church, Community, Samahan [an association of workers], Education and the State. 64 Ibid, art. 1. 65 Ibid. 66 Ibid. 67 See Ruben Balane, Spanish Antecedents to the Philippines Civil Code (Quezon City: UP Law Center, 1979). 68 UNCRC, supra note 40, art. 1. 69 Republic Act No. 6809 (1989) An Act Lowering the Age of Majority from Twenty-One to Eighteen Years Amending for the Purpose Exec. Order No. 209, and for Other Purposes.
50 unemancipated and is “released” only upon the attainment of majority i.e. 18 years of age where “emancipation…terminate[s] parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life.”70
The concept of parental authority is defined as “the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter’s needs.”71 According to the Family Code, such authority and responsibility is “pursuant to the natural right and duty of parents over the person and property of their unemancipated children”72 and shall include “the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.”73 As such, the law clearly acknowledges that the socialization role of the family towards the child is undertaken by parents through parental authority. Expounding on this role of parental authority in the socialization of children, the law lays down the particular tasks of parents with regard to their children. The Child and Youth Welfare Code provides:
Art. 46. General Duties – Parents shall have the following general duties toward their children:
1. To give him affection, companionship and understanding; 2. To extend to him the benefits of moral guidance, self-discipline and religious instruction; 3. To supervise his activities, including his recreation; 4. To inculcate in him the value of industry, thrift and self-reliance; 5. To stimulate his interest in civic affairs, teach him the duties of citizenship, and develop his commitment to his country; 6. To advise him properly on any matter affecting his development and well-being; 7. To always set a good example; 8. To provide him with adequate support…; and 9. To administer his property, if any, according to his best interests….74
The Family Code later on essentially reiterates these tasks of parents – as an exercise of parental authority – in the socialization of their children. It provides:
Art. 220. The parents and those exercising parental authority shall have with respect to their unemancipated children or wards the following rights and duties:
70 Ibid, s. 3. 71 Santos, Sr. v. Court of Appeals, et al., G.R. No. 113054, March 16, 1995. 72 Family Code, supra note 53, art. 209. 73 Ibid. 74 Child and Youth Welfare Code, supra note 63, art. 46.
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(1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; (2) To give them love and affection, advice and counsel, companionship and understanding; (3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; (4) To enhance, protect, preserve and maintain their physical and mental health at all times; (5) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; (6) To represent them in all matters affecting their interests; (7) To demand from them respect and obedience; (8) To impose discipline on them as may be required under the circumstances; and (9) To perform such other duties as are imposed by law upon parents and guardians.75
Echoing the characterization of children by traditional family socialization, the concept of parental authority in Philippine law also sees children simply as the passive recipients of this socializing task of parents who are “entitled to control their children and keep them in their company.”76 This authority granted by law to parents is characterized as having “for its purpose [children’s] physical development, the cultivation of their intelligence, and the development of their intellectual and sensitive faculties.”77 In fact, it represents the right of the parents to do 78 “almost everything…for the sake of their children.”
Typical of the traditional understanding of the family socialization where the focus is on the adults and children are merely the passive recipients of this familial influence, even early Spanish documents that became the basis of 16th century Philippine laws and policies on the family, in fact, refer to children only in relation to how parents should bring them up.79
75 Family Code, supra note 53, art. 220. 76 Reyes, et al. v. Mother Superior of the Beaterio dela Compañia de Jesus, et al., G.R. No. L-3957, October 3, 1907. 77 Ibid. 78 Journal of the Constitutional Commission, supra note 57 at 1454. 79 Samuel Parsons Scott, Las Siete Partidas (Chicago: Commerce Clearing House, Inc., 1931) at 972. Title XIX, Law I of the Las Siete Partidas provides: “Nurture is one of the most important good actions which one person can perform for another, because every man is induced to do this through the great affection which he entertains toward the child whom he brings up, whether the latter is his own, or that of a stranger. This nurture has great force, and especially that which a father gives his child, for although he may have natural love for it, because it was begotten
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Clearly, parental authority imposes a heavy obligation on parents to provide for their children. Because parents know what is best for their children, norms dictate that the authority of parents should remain respected and unquestioned. This norm is based on the belief that children are immature and thus do not know what is good for them.80 It is also a common belief that adults “know more than the children” because they are older and they have had more experiences. Children, on the other hand, are “ignorant” because they are young. Parents tend to say: “Bata ka pa. Wala ka pang alam” (You are still young. You know nothing yet).81 A 2001 study in the Philippines describes the power relations between adults and children in this manner:
The belief that children are not competent persons makes it difficult for adults to consider children as ‘equals’. This unequal power relation makes it harder for children to exercise their rights to participate. This power relation backs the notion that rights are ‘given’ and that adults hold the right to bestow these on children. Although the State recognizes children’s rights and mandates all to uphold these, in the context of family, the parents still have the authority to bestow these rights as they see fit. In most cases, parents provide only the rights to survival and development. Sadly, participation rights are not considered as important due to the belief that children are vulnerable.82
The unemancipated status of a child defined by law finds justification in traditional social definitions that construct them as “passive, dependent and vulnerable.”83 Thus, Ong finds in her study that from the perspective of adults:
Children [are] walang-isip, walang-alam, walang-malay (mindless, know- nothings, innocent). The child is weak and therefore needs protection. He cannot fend for himself, and so childhood is seen as an extended period of dependency prior to adulthood when one can start earning for oneself and one’s family. He is also born tabularasa --- without knowledge, without goals, and without morals.84
These conceptions of the child are very much reflective of the dominant paradigm of children by him, his affection for it increases much more by reason of the nurture which he affords it; and the child is also bound the more to love and obey its father, because he was willing to endure the trouble of bringing it up, rather than commit it to someone else.” 80 Elizabeth Protacio, Ma. Teresa dela Cruz, Faye Balanon, Jay Yacat and Carolina Francisco, Trust and Power: Child Abuse in the Eyes of the Child and the Parent (Manila: Save the Children UK and the United Nations Children’s Fund, 2001). 81 Council for the Welfare of Children and UNICEF, “The National Framework for Children’s Participation: A Guide in Promoting and Upholding Children’s Participation in the Philippines” online: UNICEF
53 and childhood. Passivity, dependence and vulnerability represent the traits that children have which make them “different”85 from adults. Such difference then becomes the basis for labeling children as incompetents who need adults – primarily parents – to take “responsibility for the child, for his survival, for his physical and mental growth, for his eventual adaptation to community standards.”86 In this sense, “adults monopolize the determination of what is in the best interests of the child under the guise that childhood by its definition makes the child ill- suited to make rational, reasonable and wise decisions about his or her life and interests.”87
Adults, especially parents, look at children as incomplete persons because they lack certain faculties necessary to be considered adult.88 Therefore children are weak and vulnerable and need a great deal of protection and guidance from adults. They are encouraged to be dependent on their parents. A child does not become an adult until taught or trained to become one. Childhood is therefore a preparation for adulthood and parenting is thus understood as the process of shaping children to become proper adults.89 The role of the family then, especially the parents, is to mold the child into a socially responsible adult.
In addition to the statutory rights and duties of parents over their children, the courts have also described the scope of parental authority as including the rearing and caring for children with
85 See Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (New York: Cornell University Press, 1990) who argues that we must think seriously about difference otherwise its meanings will operate without examination or justification. At 376-377 she writes: “The perspective of those who are labeled ‘different’ may offer an important challenge to those who imposed the label, but it is a correlative lens, another partial view, not the absolute truth. It is the complexity of our reciprocal realities and the conflict between our realities that constitute us which we need to understand. Shifting perspectives exposes how a ‘difference’ depends on a relationship, a comparison drawn between people with reference to a norm. And making this reference point explicit opens up the debate. Maybe the reference point itself should change….Changing the ways we classify, evaluate, reward and punish may make the differences we had noticed less significant, irrelevant or even a strength. The way things are is not the only way things could be. By aligning ourselves with the ‘different’ person, for example, we could make difference mean something new; we could make all the difference.” 86 Joseph Goldstein, Anna Freud and Albert Solnit, Beyond the Best Interests of the Child (New York: The Free Press, 1973) at 9. 87 Ncube, supra note 45 at 17. See also Ann Oakley, “Women and Children First and Last: Parallels and Differences between Children’s and Women’s Studies” in Berry Mayall, ed, Children’s Childhoods Observed and Experienced (London: The Falmer Press, 1994) who compares children with women as vulnerable members of society. At 16 Oakley observes: “The welfare of women and children are based not on asking them what they want or need, but on what other people consider to be the case. It is a philosophy of exclusion and control dressed up as protection, and dependent on the notion that those who are protected must be so because they are deemed incapable of looking after themselves.” 88 Elizabeth Protacio-de Castro, “Negotiating Trust and Power: Parenting in the Context of Conflict Resolution” online: Child Protection in the Philippines: Philippine Resource Network
54 the “right to the child’s services and earnings, and the right to direct his activities and make decisions regarding his care and control, education, health and religion.”90 Thus, it is clear that the rights and duties of parents extend to the “whole plethora of the child’s personality.”91
Entrenched in all these constructions of the child brought about by the legal concept of parental authority is an understanding that the child is simply the result of age and a particular stage of development.92 Parental authority accomplishes its goal of socialization because any unemancipated child within the family is wholly dependent on the parents and must therefore “always observe respect and reverence towards [the] parents and…obey them as long as the [child is] under parental authority.”93 Thus, the law relies heavily on notions of levels of
90 Cang v. Court of Appeals, et al., G.R. No. 105308, September 25, 1998. See also Dissenting Opinion of Justice Makasiar in Luna v. Intermediate Appellate Court, G.R. No. L-68374, June 18, 1985. 91 Journal of the Constitutional Commission, supra note 57 at 1358. In relation to this, the law provides that parental authority may not be renounced or transferred except in cases authorized by law. There are two types of termination of parental authority: permanent and non-permanent. Permanent termination occurs upon death of the parents; death of the child or; emancipation of the child (Family Code, supra note 53, art. 228). Non-permanent termination of parental authority occurs upon adoption of the child; appointment of a general guardian; judicial declaration of abandonment of the child in a case filed for the purpose; final judgment of a competent court divesting the party concerned of parental authority; or judicial declaration of absence or incapacity of the person exercising parental authority (Family Code, supra note 53, art. 228). In these cases, the termination is non- permanent as parental authority can be revived by court order. The revival is allowed because these “are events without the fault of the parents or with the fault of the parents but without malice.” (Minutes of the 135th Meeting of the Civil Code and Family Law Committees, March 22, 1986, 9). Short of termination of parental authority, the law also provides for instances where it can merely be suspended (Family Code, supra note 53, art. 230-231). These instances include: 1) conviction of a crime which carries with it the penalty of civil interdiction (Art. 34 of the Revised Penal Code states that civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos); 2) treating the child with excessive harshness or cruelty; 3) giving the child corrupting orders, counsel or examples; 4) compelling the child to beg; 5) subjecting the child or allowing her to be subjected to acts of lasciviousness; and 6) cases which have resulted from culpable negligence. The law gives the courts some discretion to deprive the guilty party of parental authority or adopt other measures as may be proper under the circumstances depending on the degree of seriousness or whether the welfare of the child so demands (Family Code, supra note 53, art. 231, par. 3). Also, the suspension, deprivation or revival of parental authority depends on whether the courts find that the cause therefore has ceased and will not be repeated (Family Code, supra note 53, art. 231, par. 4). 92 On the part of parents, parental authority attaches to the biological status of both the father and the mother. In case of disagreement between the spouses, the father’s decision prevails. The mother’s recourse is to get a judicial order contrary to the father’s decision (Family Code, supra note 53, art. 211). Further pursuing paternal preference, the law is replete with references to the preferential authority of the father. In the administration of the property of the children, the father’s decision will prevail in case of disagreement with the mother with whom the father shares joint legal guardianship (Family Code, supra note 53, art. 225). In cases of persons between the ages of 18 and 21 who are to contract marriage, consent to their marriage must be obtained from their father, mother, surviving parent or guardian or persons having legal charge of them, in that order (Family Code, supra note 53, art. 14). Also, the responsibility for the quasi-delicts (tort) of the child is still vested in the father and only in case of his death or incapacity does it devolve upon the mother (Family Code, supra note 53, art. 2180). 93 Family Code, supra note 53, art. 211, par. 2.
55 growth94 and phases of development95 to ensure the child’s “fullest,” “healthy” and “normal” development.96 To this end, the law – through its sanctioning of parental authority – reduces the lives of children within the family to a universal experience of childhood. Such homogenization is demonstrated by the law’s uniform prescription for parents in dealing with children on such diverse matters as: winning the child’s confidence;97 discovering the child’s talents;98 cultivating reading habit;99 and preventing the child from falling into bad company by supervising association with other children,100 community activities,101 social gatherings102 and vices.103
IV. A RE-IMAGINING OF THE PHILIPPINE FAMILY AS THE BASIS OF THE EMERGING PARADIGM:
THE PARTICIPATION OF CHILDREN IN THE FAMILIAL NETWORK OF RELATIONSHIPS
94 Child and Youth Welfare Code, supra note 63, art. 9 on levels of growth provides: The child shall be given adequate care, assistance and guidance through his various levels of growth, from infancy to early and later childhood, to puberty and adolescence, and when necessary even after he shall have attained age 21. 95 Ibid, art. 10 on phases of development provides: The child shall enjoy special protection and shall be given opportunities and facilities, by law and by other means, to ensure and enable his fullest development physically, mentally, emotionally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity appropriate to the corresponding developmental stage. 96 Ibid. 97 Ibid, art. 48 on winning the child’s confidence provides: Parents shall endeavor to win the child’s confidence and to encourage him to conduct with them on his activities and problems. 98 Ibid, art. 50 on special talents provides: Parents shall endeavor to discover the child’s talents or aptitudes, if any, and to encourage and develop them. If the child is especially gifted, his parents shall report this fact to the National Center for Gifted Children or to other agencies concerned so that official assistance or recognition may be extended to him. 99 Ibid, art. 51 on reading habit provides: The reading habit should be cultivated in the home. Parents shall, whenever possible, provide the child with good and wholesome reading material, taking into consideration his age and emotional development. They shall guard against the introduction in the home of pornographic and other unwholesome publications. 100 Ibid, art. 52 on association with other children provides: Parents shall encourage the child to associate with other children of his own age with whom he can develop common interests of useful and salutary nature. It shall be their duty to know the child’s friends and their activities and to prevent him from falling into bad company. The child should not be allowed to stay out late at night to the detriment of his health, studies or morals. 101 Ibid, art. 53 on community activities provides: Parents shall give the child every opportunity to form or join social, cultural, educational, recreational, civic or religious organizations or movements and other useful community activities. 102 Ibid, art. 54 on social gatherings provides: When a party or gathering is held, the parents or a responsible person should be present to supervise the same. 103 Ibid, art. 55 on vices provides: Parents shall take special care to prevent the child from becoming addicted to intoxicating drinks, narcotic drugs, smoking, gambling, and other vices or harmful practices.
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Given the current understandings of the family explored in the previous section, this section now tries to go beyond such notions by doing a careful scrutiny of the foundational basis of the Philippine family. It re-imagines the family as a network of relationships based on an indigenous relational framework that provides context for the emerging paradigm. With a reconceived notion of the nature of the family, this section demonstrates the role of children and the value of their engagements within the family reconstructing them as active participants within this familial network of relations.
The Filipino family is known as the mag-anak. The expression mag-anak clearly signifies the importance of the role of a child in the family because “anak” is the Filipino term for child. What this means is that Filipino tradition dictates that a married couple (mag-asawa) only becomes a family with the birth of a child.104 Jocano explains:
In all sectors of Philippine society, the child is much desired, wanted and enjoyed. The orientation appears to have been deeply engrained in the Filipino cultural psyche such that it is almost a natural thing to want a child. Many consider it morally wrong not to want a child when one is married. To have a child or children is the dream of married couples.105
Coupled with this social significance attached to the child is the legal recognition that the child is “endowed with the dignity and worth of a human being from the moment of his conception.”106 Within the Philippine value system, dignity and human worth find context in the indigenous principle of dangal which “embodies the moral imperatives of the core value system”107 that is “used to characterize identity, pride and commitment to…principles…and people.”108 From these fundamental understandings of the child, the intrinsic quality and meaning of actions of the child and towards the child take on a significant legal, social and moral value.
Given the acknowledgment of the value of children by themselves and within the family, there is the possibility of reconceiving the family and the socialization that occurs within it. As
104 Ong, supra, note 55. 105 Felipe Landa Jocano, Filipino Social Organization: Traditional Kinship and Family Organization (Metro Manila, Philippines: Punlad Research House, 1998) at 77-78. 106 Child and Youth Welfare Code, supra note 70, art. 3, par. 1. 107 Felipe Landa Jocano, Notion of Value in Filipino Culture: The Concept of Pamantayan Punlad Research Paper No. 2 Series on Filipino Values (Quezon City, Philippines: Punlad Research House, 1992) at 16. 108 Ibid.
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Giddens writes:
The unfolding of childhood is not time elapsing just for the child: it is time elapsing for its parental figures, and for all other members of society; the socialisation involved is not simply that of the child, but of the parents and others with whom the child is in contact, and whose conduct is influenced by the child just as the latter’s is by theirs in the continuity of interaction.109
Mayall reformulates the socialization of the family as “interactive encounters.”110 Contextualized within the Philippines, such socialization is understood as a system of deep and profound sharing of identities embodied in the relational philosophy of pakikipagkapwa.111 An opportunity to recognize the identity and the personhood of the child within the family is to locate such child within this context of relationships. Seen in this manner, the child is described as an important participant in the social structure of kinship. This reveals the child’s active role within the family.
Fundamentally, the overall conception of the family highlighting relationships is described by the sponsorship speech made during the introduction of the provision of “The Family” in the Constitution:
We have risen to the rights of the individual, of women, of children. The rights of the person, however, have a fundamental social dimension in the institution of the family. The family as a natural society exists prior to the State or any other community. Thus…the future of humanity passes by way of the family.
We Filipinos are truly a family-centered culture and this is one of our real strengths as a nation. We are poor in many ways but not in our instinctive love and commitment to family life. Our core family values may yet prove to be our greatest contribution to the rest of the contemporary world where family life has continually been eroding.
The typical Filipino couple’s major concern is their children, their children’s welfare, education and their future. In turn, their children care for their elderly parents in personal and sacrificing ways that are increasingly disappearing in many contemporary cultures. Such a deeply human family system as ours deserves to be enhanced and preserved not only for the sake of our own country but even for the sake of the rest of the world. It deserves the fullest support and protection from the
109 Anthony Giddens, Central Problems in Social Theory: Action, Structure and Contradiction in Social Analysis (Berkeley: University of California Press, 1979) at 139. 110 Mayall, supra note 29 at 118. 111 Understood within the Philippine value system, pakikipagkapwa involves a sharing of one’s self thus it embodies much more than mere interaction. This concept will be discussed in detail in the last part of this section.
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State. Without such protection and support, we may inevitably capitulate to the powerful forces from without and witness the gradual collapse of our Filipino family system (emphasis added).112
The framework of the family, stressing a “fundamental social dimension,” validates the notion that relationships are very important to Filipinos. From the moment of birth, a person’s life is intimately connected to the network of kin. Culturally, the basic units of Philippine society are the nuclear family, consisting of the husband, wife, and children and the bilaterally extended families of both the husband and the wife.113 This leads anthropologists to define the Filipino kinship system as bilateral. Jocano writes:
[T]wo lateral groups of individuals, related or not, are brought together, by virtue of the marriage of their kin. When a child or children are born, the relation is shifted from affinal to consanguineal, with the child or children as the point of reference.114
This social structure of relationships signifies that the Filipino recognizes a network of kinship. The kinship structure, known as the magkakamag-anak,115 “serves as the point of reference in identifying persons as kin or non-kin, in tracing descent from an ancestor or group of ancestors, in defining the range and limit of relations, and in establishing quasi-kin relations.”116 As proof of the expansive relationships recognized by Filipinos, kinship may, in fact, be consanguineal,117 affinal or compadrazgo.118
Blood ties are the first source of kinship. Because the connection in this case can be traced to the blood (nasa dugo), children are conceived to be related not only to the mother and father but
112 Bernas, supra note 8 at 1128-1129. 113 Belen TG Medina, The Filipino Family: A Text with Selected Readings, (Diliman, Quezon City: University of the Philippines Press, 1991) at 35. 114 Jocano, supra note 105 at 21. 115 It should be noted that even this network of kinship referred to as “magkakamag-anak” still includes the term “anak” in it, which means child. Again, this signifies how in the structure of kinship, the child remains at the nucleus. 116 Ibid. 117 The significance afforded to bloodlines is part of the reason why civil law provisions point to an obvious bias against illegitimacy. In the case of Maria Jeanette C. Tecson, et al v. The Commission on Elections, et al, G.R. No 161434, March 3, 2004, the Philippine Supreme Court through J. Vitug explained: “The discriminatory attitude may be traced to the Spanish family and property laws, which, while defining proprietary and successional rights of members of the family, provided distinctions in the rights of legitimate and illegitimate children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and wealth were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by foreign blood was paramount.” 118 A Spanish term which denotes close friendship usually occurring as a result of a religious ritual which connects one person to another.
59 also to the relatives of both. This is one of the reasons why links with distant cousins, aunts and uncles are recognized.119 Affinal relations, meanwhile, are given the stamp of permanency as well. Not surprisingly, the law does not allow for divorce,120 trying to keep a husband and wife together.
The law validates these family relations by combining consanguineal and affinal networks held by the people. Thus the law provides that family relations include those between husband and wife; between parents and children; among other ascendants and descendants; and among brothers and sisters, whether of the full or half-blood.121
A third source of kinship is equally important in Philippine society, the compadrazgo. Religious rituals (e.g. weddings, baptisms, confirmations) create these ties where a godfather (ninong) or godmother (ninang) is chosen to function as a second parent to the godchild (inaanak). Jocano describes this relationship:
The godparents are expected to help in the upbringing and education of the godchild and to assist him in time of need. In turn, the child is expected to help his godparents when they need his assistance. He has to obey and respect them as though they were his real parents.122
What is formalized in the rite is the moral obligation to assist in times of crisis. This obligation is part of the expectations of those involved in the relationship.123
Entrenched within this deep and complex system of relationships is the child who is the point of reference in identifying affinal, consanguineal and compadrazgo relations. A clear case in point, two angkan124 – that of the mother’s and the father’s – merge into one in the generation of the child. This shows that the child is not only the bridge between and among generations but is also the tie that binds relations.
119 This is also part of the reason why marriages between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree are prohibited by public policy. Family Code, supra note 53, art. 38. 120 Although technically the law does not allow for divorce, the Family Code, supra note 53, art. 36 provides for a ground for the declaration of absolute nullity of a marriage where one of the parties to the marriage is psychologically incapacitated to comply with the essential marital obligations of marriage. This ground is based on Canon law. 121 Family Code, supra note 53, art. 150. 122 Jocano, supra note 105 at 44. 123 Ibid at 45. 124 A group of related families from which descent is traced.
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Furthermore, within the framework of familial relationships, the child also provides these significant functions:
1) The child is a source of happiness (Ang anak ay kaligayahan)125 2) A child is an evidence of love (Ang anak ay katibayan ng pagmamahal)126 3) The child is a gift of God (Ang anak ay biyaya ng Diyos)127 4) Children are necessary in order to maintain the family lineage (Ang mga anak ay kailangan upang mapanatili ang angkan)128
From these functions, it is discernible that the child is the link between the network of relationships considered vital within the social context. With the first and second functions, the child stands as the strength of the family establishing interdependency and solidarity among the members. The third and fourth functions see the child as the fundamental connection between the family and two critical aspects of existence: spirituality and ancestry.
It is not surprising then that the law encourages attachment to the home and strong family ties.129 Children are supported to strongly identify with the family. Respect and strong interpersonal relations with neighbors and kinsmen are valued. Children are also expected to be industrious and to strive in order to achieve and improve their economic condition. They are expected to help in all family activities whenever they are not in school.130 Seen from an interdependency perspective, the child is intimately connected to the members of the family within the context of deeply entrenched relationships. What this means for the child is that the child is considered an essential part of an intimately connected network of relationships. Without the child, there is a break in the link of social interactions.
Harmony within the family unit is primordial.131 Accordingly, before a person can file a suit against another belonging to the same family, earnest efforts must first be made to settle the case
125 Jocano, supra note 105 at 80. 126 Ibid at 84. 127 Ibid at 82. 128 Ibid at 86. 129 Child and Youth Welfare Code, supra note 63, art. 1, par. 4. 130 Medina, supra note 113 at 200-201. 131 In this regard, Act No. 3815 (1930) An Act Revising the Penal Code and other Penal Laws, art. 15 [Revised Penal Code] recognizes relationship as an alternative circumstance which shall be taken into consideration when the offended party is the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by affinity in the same degrees of the offender.
61 amicably; otherwise, the suit is dismissible.132 Maintaining the image of an ideal united family, the drafters of the law commented:
It is difficult to imagine a sadder and more tragic spectacle than a litigation between members of the family. It is necessary that every effort should be made toward a compromise before a litigation is allowed to breed hate and passion in the family. It is known that a lawsuit between close relatives generates deeper bitterness than strangers.133
But more than what the law explicitly states is the essence of these relations. Although the law seems to simply decree an avoidance of conflict, what the law actually represents is described by Enriquez as the “collective values shared with the whole humanity and the deep respect for the dignity and inherent worth of a fellow human being.”134
Family pride is a very strong incentive for unity.135 This is embodied in the phrase “di ka na iba sa akin” which literally translates to “you are no different from who I am.” The concept of unity in Philippine society has an even more profound significance when seen through the perspective of interconnectedness. One will find the philosophy of “kapwa” in the core of Philippine relationships. Enriquez keenly observes:
When asked for the closest English equivalent of kapwa, one word that comes to mind is the English word “others.” However, the Filipino word kapwa is very different from the English word “others.” In Filipino, kapwa is the unity of the “self” and “others.” The English “others” is actually used in opposition to the “self,” and implies the recognition of the self as a separate identity. In contrast, kapwa is a recognition of shared identity, an inner self shared with others.136
This unity of the “self” with “others” serves as the basis for all relationships, especially those within the family. What this implies is that relationships do not merely involve dealing with the
132 Republic Act No. 386 (1950) Civil Code of the Philippines, art. 2035 [Civil Code] mandates that this is not absolute as no compromise upon the following questions shall be valid: 1) the civil status of persons; 2) the validity of a marriage or a legal separation; 3) any ground for legal separation; 4) future support; 5) the jurisdiction of courts; 6) future legitime. Additionally, the rule on earnest efforts also does not apply to special proceedings like a petition for the settlement of estate guardianship and custody of children, and habeas corpus. 133 Melencio Sta. Maria, Jr, Persons and Family Relations Law (Manila: Rex Bookstore, Inc., 2004) at 554 quoting the Report of the Civil Code Commission at 18. 134 Virgilio Enriquez, From Colonial to Liberation Psychology: The Philippine Experience (Diliman, Quezon City: University of the Philippines Press, 1992) at 43. 135 Pura Santillan-Castrence, “The Role of the Family in the Philippines” in Cultures in Encounter: Germany and the Southeast Asian Nation: A Documentation of the ASEAN Cultural Week Tübingen, Summer 1977 (Stuttgart: Institut für Auslandsbeziehungen, 1978) at 131. 136 Enriquez, supra note 134 at 43.
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“other,” but rather, it is connecting with one’s identity. Kapwa serves two important functions: 1) it describes equality of status and 2) it speaks of a shared orientation. Thus, the kapwa philosophy can be a powerful legal and moral concept to reconstruct our understanding of the dynamics of a family and what it means to be a child in that family. Enriquez provides a useful elaboration of this concept:
Pakikipagkapwa137 as a conviction emanating from a shared inner self does not simply imply either pakikitungo (amenities), pakikisama (adjusting), or any other modes and levels of interaction.
Pakikipagkapwa is much deeper and profound in its implications. It also means accepting and dealing with the other person as an equal.... [T]he Filipino way demands and implements the idea that they treat one another as fellow human beings (kapwa-tao). This means a regard for the dignity and being of others.
The complexity of interpersonal relations is recognized in the…proverb: ‘Madali ang maging tao, mahirap ang magpakatao.’ (It is easy to be born a human, but it is not as easy to be one).138
V. RE-INTERPRETING LEGAL NORMS TO REFLECT THE RELATIONAL NATURE OF THE
FAMILY: RECOGNIZING THE ENGAGEMENTS OF THE CHILD AS PARTICIPATION
This last section does an analysis of specific legal norms involving engagements of the members of the family that have been interpreted and understood based on the dominant paradigm. These legal concepts have been typically understood from the adult perspective where they are interpreted as rights, duties and obligations of parents towards their children. The section proposes an interpretation of the law that makes use of the relational nature of the family where the engagements of children are interpreted as responsibilities taken on by them in the intimate sharing of collective values that define and structure the Philippine family. Such an interpretation thus recognizes the active participation of children within the familial context.
Clearly, there is a heavy demand on children to live out certain ideals e.g. upright and virtuous life, love, respect and obedience. Numerous studies have been conducted on what parents desire from their children and these reveal that the traits of industry, respect (especially for parents and
137 The closest English translation would be “relating to others” but as explained in the text, this does not accurately describe the essence of interconnectedness embodied in this relational value. See ibid. 138 Enriquez, supra note 134 at 45.
63 elders), perseverance in studies and kindness are the main expectations from children.139 For many parents, a disobedient child is a “bad” child while the “good” child is obedient and subservient.140 When these expectations are seen as obligations imposed on children, there is difficulty in reconciling them with the understanding that children are active participants within the family. Thus, many see the reality of children in the Philippines as being passive recipients of adult exigencies. From the moment they are born, children are required to furnish emotional gratification and provide recognition and respect for their male and female procreators. Children are then expected to go to school, learn, and be educated. Then as they grow up, children are obligated to support their parents and other family members. This perspective of obligations definitely has an impact on the child’s status and identity. Ncube, for example, lays out the effects of internalized and rigorously enforced obedience:
The notion of respect and obedience has implications on the capacity of both the children to assert their rights and of the families to act as mechanisms for the defence and promotion of children’s rights. If the traditional family expects ‘childhood’, in its general sense, to be a continuous period of self-effacing obedience to traditional authority which is often inconsistent with individual assertion of child rights as defined in international instruments, it is difficult to imagine how the same family may champion the rights and expectations of childhood which may not be consistent with its expectations. Furthermore, the children themselves having been heavily socialized into obedience and ‘respect’ are unlikely to see their stage of childhood as a period during which they may vigorously assert their rights.141
However, when these expectations are seen as responsibilities, they take on a completely different character. The fact that the law recognizes that children have both rights and responsibilities is a strong indication that children are not mere passive recipients of rights. Rather, they can exercise rights and take responsibilities for such actions.142 The law provides for these responsibilities of the child through the Child and Youth Welfare Code:
Art. 4. Responsibilities of the Child. – Every child, regardless of the circumstances of his birth, sex, religion, social status, political antecedents and other factors shall:
139 Carol Sobritchea, “The Ideology of Female Domesticity: Its Impact On the Status of Filipino Women” (1990) Review of Women’s Studies 26. 140 Protacio, et al, supra note 80. 141 Ncube, supra note 45 at 19. 142 One of the arguments against according children rights is that they are incapable of taking responsibility for these rights. Thus, they are relegated to having protection rights which means that they are mere recipients of adult benevolence.
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(1) Strive to lead an upright and virtuous life in accordance with the tenets of his religion, the teachings of his elders and mentors, and the bidding of a clean conscience; (2) Love, respect and obey his parents, and cooperate with them in the strengthening of the family; (3) Extend to his brothers and sisters his love, thoughtfulness and helpfulness and endeavor with them to keep the family harmonious and united; (4) Exert his utmost to develop his potentialities for service, particularly by undergoing a formal education suited to his abilities, in order that he may become an asset to himself and to society; (5) Respect not only his elders but also the customs and traditions of our people, the memory of our heroes, the duly constituted authorities, the laws of our country, and the principles and institutions of democracy; (6) Participate actively in civic affairs and in the promotion of the general welfare, always bearing in mind that it is the youth who will eventually be called upon to discharge the responsibility of leadership in shaping the nation's future; and (7) Help in the observance of individual human rights, the strengthening of freedom everywhere, the fostering of cooperation among nations in the pursuit of their common aspirations for programs and prosperity, and the furtherance of world peace.143
An earlier articulation of these responsibilities of the child was provided for in 1950 through the Civil Code:144
Art. 357. Every child shall:
(1) Obey and honor his parents or guardian; (2) Respect his grandparents, old relatives, and persons holding substitute parental authority; (3) Exert his utmost effort for his education and training; (4) Cooperate with the family in all matters that make for the good of the same.145
With a reconceptualization of the family coupled with a reconstruction of children and childhood, these provisions on the responsibilities of the child have the possibility to take on a legal signification that recognizes and respects their participation within the family. Thus, the chapter proposes a re-interpretation of these provisions that moves away from the legal norm of
143 Child and Youth Welfare Code, supra note 63, art. 4. 144 Civil Code, supra note 132. The Civil Code of the Philippines is the codification of private laws in the country. It was approved in 1949 and took effect on August 30, 1950 and still remains in force today although there have been amendments and revisions. The Civil Code is the result of the work of a Code Commission that was constituted a number of times. The final draft of the Code was completed in 1947 and was submitted to Congress. The Civil Code is very much influenced by the Spanish Civil Code of 1888 which was extended to the Philippines by royal decree when the country was under Spanish rule. The Civil Code is made up of a Preliminary Title and four books covering 1) Persons (which includes family relations); 2) Property, Ownership and its Modifications; 3) Different Modes of Acquiring Ownership; and 4) Obligations and Contracts. 145 Ibid, art. 357.
65 parental authority. Instead, the chapter puts forward an interpretation of these responsibilities of children provided for by law as actual engagements of children that demonstrate their rights, realities and relationships within the family.
Responsibilities establish children as active participants in the structuring of the family that is described as a system of relationships. As responsibilities, these expectations become tasks that children undertake. This underscores their capacities to express their ideas and share in the choices on matters and events that affect them. Children are thus seen not only as moral agents possessing the capacity for moral reasoning but also social actors whose dealings and interactions have consequences. Take for example the child’s responsibilities to love, respect, obey and help parents, brothers and sisters. Seen as responsibilities, the law establishes the child’s connection to one’s family which reconstructs our understanding of the dynamics of that institution. The child then shares a common identity with the other members of the family. This in turn gives the child the occasion to be recognized as an active partaker within that structure. True enough, the law recognizes the responsibility of the child to “help in the observance of individual human rights and the strengthening of freedom everywhere.”146
Parents, in fact, attribute responsibilities to children in the family:
In many Filipino households, for example, the panganay (firstborn) is expected to be responsible, level-headed and mature. The bunso (youngest child), on the other hand, is seen as playful and easy going.
Thus, the panganay or eldest children are usually tasked to take care of their siblings especially when both parents are working. At a very young age, they are expected to do certain household chores such as cleaning the house, washing the dishes and cooking rice. This is especially true if the eldest is a female.147
Thus, it is not uncommon for children to actually exercise authority. Although hierarchical in nature, “older children, whether male or female, are dominant over the younger ones. The eldest child, in particular, has a quasi-paternal status and has authority including the right to punish the younger siblings for misbehavior.”148 Furthermore, Filipino children are exposed to the rigors of working and earning a living at an early age. In terms of domestic work, children, especially
146 Child and Youth Welfare Code, supra note 63, art. 4, par. 7. 147 Protacio, et al, supra note 80 at 105. 148 Medina, supra, note 113 at 24-25.
66 girls, are expected to do household chores and act as pseudo-parents to younger siblings. In terms of earning income, children actively participate in the planting and harvesting of crops, and in the preparation of foodstuffs for sale and the vending thereof.149 But since the objective of these activities, according to the adults, is to prepare children to become mature members of society, the capacities and contributions of children are minimized, if not completely disregarded.
The child’s role in paid and domestic work is a powerful tool to reconceive the child’s capabilities. When parents are not doing the work that they were doing before, the work has not disappeared – as parents would think – “rather a major part of it has been taken over by the children themselves.”150 If these social and economic contributions are simply recognized as such, then the tasks of the child are given value. Not only does this re-position the child within the family but it also attaches importance to such role. The child is then acknowledged as an active contributor in the creation of a shared identity of the family.
Re-interpreting the law to recognize the responsibilities of children as actual engagements within the family has far reaching implications on the nature of children’s experiences, the expectations of adults around them and the opportunity for children to take even greater responsibility for decisions that affect their lives. Children are caught between a characterization that on the one hand, they are weak and vulnerable and on the other, that they are active links in the preservation of interdependencies within familial relations.
Using this responsibility-as-engagement framework to re-interpret the law, the last part of the section now undertakes to examine specific legal norms within the family that have been typically understood from the parental perspective. Because of the overarching influence of parental authority, these concepts are interpreted as rights, duties and obligations of parents towards their children. Pursued in this manner, the chapter shows that such understanding validates the dominant perspective of children as passive recipients of adult socialization. This obscures the child’s role within the family, trivializes the child’s identity, and forecloses the
149 Felipe Landa Jocano, Social Organization in Three Philippine Villages: An exploration in Rural Anthropology (Manila: Centro Escolar University, 1988). 150 Anne Solberg, “Negotiating Childhood: Changing Constructions of Age for Norwegian Children” in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood, 2d ed (London: The Falmer Press, 1997) at 139.
67 possibility of allowing children opportunities to participate. The chapter argues that because the law has been conflated with the concept of parental authority, children have been relegated to a peripheral status and identity where their engagement is not recognized. As an alternative, this section of the chapter proposes a reading of the law that constructs these legal norms as responsibilities taken on by the child. This, however, does not detract from the eventual objective of laying down a more definitive legal framework that reformulates our understanding of the family, socialization and children. Ultimately, the law needs to manifestly recognize the participation of children within the family. Towards that goal, current legal understandings of children and their responsibilities must be recast to open up that space for them within the law and the family. The emerging paradigm allows us that possibility by re-interpreting these specific legal circumstances, in the words of James and Prout, as “strategies of action which [children] use – sometimes effectively, sometimes not – as engaged and embedded but also mobile actors confronting different social settings.”151
A. SUPPORT
The law enumerates the family members obliged to support each other. These include the spouses; legitimate ascendants and descendants; parents and their legitimate and illegitimate children and further, the legitimate and illegitimate children of these children; and legitimate or illegitimate brothers and sisters, whether of full or half-blood.152 Support is an essential concept in the Philippines not only legally but also socially. The legal definition of support stresses its importance. It “comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.”153
The dominant interpretation of this concept is the parental duty to provide the child with adequate support154 and to provide for the child’s upbringing.155 This is coupled with the right of parents to the child’s “services and earnings.”156 Because parents carry out this obligation
151 James and Prout, supra note 7 at 49. 152 Family Code, supra note 53, art. 195. 153 Ibid, art. 194. 154 Child and Youth Welfare Code, supra note 63, art. 46, par. 8. 155 Family Code, supra note 53, art. 220, par. 1. 156 Cang v. Court of Appeals, et al., supra note 90.
68 towards their children, it is understood that children too are obligated towards their parents. Children are even said to be “indebted” to their progenitors. This creates an obligation to “repay” what has been “bestowed” upon them. The arrangement more than compensates for the lack of an effective social security system in the country. As members of the family age, the burden on children to care for the older generation will rise in the absence of increases in public sources of support.157 In a National Demographic Survey, women of reproductive age (15 to 49 years) were asked about their expectations for support in old age.158 More than half expect to live with one or more children, and more than a third expect to receive financial or material support from children or relatives.159 This dominant understanding of the system of support rests on the basic premise that children are investments (ang mga anak ay puhunan).160
However, because support is reciprocal between parents and children, it can also be read as a recognition of the responsibilities of children not only towards the parents but also towards the family. Thus, to re-interpret support as a responsibility of the child to the family is to treat it as an actual engagement of the child that shapes and influences the family. When children take on the responsibility of support, not only does this acknowledge their right as a vital constituent of the family but it also recognizes what it means for them to be a member of their family. An essential part of this experience of children is their engagement in the values of family identification and reciprocity.161 The legal concept of support actually recognizes the strong socio-cultural concept of identifying with the family. This implies that one is never really separate from the family. Responsibility for the members of a family – as a shared ideal – rests
157 The system of support extends to grandparents as most live their families. Lita Domingo and Maruja Asis, “Living Arrangements and the Flow of Support Between Generations in the Philippines” (1995) 10 Journal of Cross Cultural Gerontology 21 at 23 write: “The 1988 National Demographic Survey (NDS) offers some insights into how the family (as indicated by living arrangements) provides support for the elderly. Only a small minority of the elderly - 4% - live alone. Data from the survey suggest that the Filipino elderly are part of fairly large households, with a mean average size of 5.14. An examination of the age structure of elderly households indicates that 83% of the elderly live with someone aged 15 to 59 (in particular, more elderly live with those aged 15 to 34 than those aged 35 to 59), and close kin are most likely to be the co-residents of the elderly.” 158 Ann Biddlecom and Lita Domingo, “Aging Trends-The Philippines” (1996) 11 Journal of Cross Cultural Gerontology 109 at 113. 159 Note however that the proportion expecting to rely on family support in old age declines steadily with increasing education. Over 70% of women with no education expect to live with a child, versus 43% of women with more than a secondary school education. These data suggest that rising levels of education of succeeding elderly cohorts may make family support more strongly related to the needs of the elderly and less related to custom. 160 Jocano, supra note 105 at 85. 161 It is common, in fact, that children are given the task of caring for the elderly in the family home. Biddlecom and Domingo, supra note 158 at 113 assert that “retirement homes or nursing homes are uncommon and house a very small fraction of the elderly population.”
69 on the family members themselves. Once a person starts thinking of herself as separate from kapwa, that person becomes individuated thereby denying her “self.” As such, the engagement of children in support is a clear manifestation of the relationships they maintain and establish within the family. Support is further motivated by the principle of reciprocity that builds on these important concepts of relationships within the Filipino culture. Bautista explains:
Relationships are very important to a Filipino. Perhaps this is because he has always lived his life intimately within a group. Early in his life, he learns that he does not belong to himself alone. He grows comfortably with the idea that somehow his life infringes on others’ lives and lives of others affect his as well.162
B. GUARDIANSHIP
A legal concept closely linking parental authority with support is guardianship. It is defined as “a trust relation of the most sacred character, in which one person, called a ‘guardian,’ acts for another, called the ‘ward,’ whom the law regards as incapable of managing his own affairs.”163
In keeping with the policy of parental authority, the father and mother jointly exercise legal guardianship over the property of their unemancipated common child without the necessity of a court appointment.164 In the case of disagreement between the parents, the decision of the father prevails, unless there is a judicial order to the contrary. The property of the child earned or acquired with her work or industry or by onerous or gratuitous title belongs to her in ownership and is devoted exclusively to her support and education unless the title or transfer provides otherwise.165
The dominant understanding of guardianship implies parental control over the person and property of the child. The child is thus obligated to obey and respect the decisions of the guardian-parents. A child only becomes involved in a petition for guardianship if 14 years of age or over.166 Prior to that, a child is considered unemancipated and there is no mention of the child’s participation in the administration of the fruits of her labor.
162 Violeta Bautista, “The Socio-Psychological Make-up of the Filipino” in Evelyn Miranda-Feliciano, ed, All Things to All Men: an Introduction to Missions in Filipino Culture (Quezon City: New Day, 1998) at 3. 163 Sta. Ana, supra note 133 at 791. 164 Family Code, supra note 53, art. 225. 165 Ibid, art. 226, par. 1. 166 AM No. 03-02-05-SC (2003) Rule on Guardianship of Minors, s. 2.
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However, certain implications of guardianship suggest a recognition of the child’s active role in the family. For one, the law implicitly recognizes the right of the child to ownership. Obviously, without any recognition of the capacity of the child to have ownership (including the capacity to work and earn income), there would be no issue of guardianship. But more importantly, guardianship once again returns to the concept of familial ties. Because of the deep relations shared by members of the family, guardianship recognizes the kapwa relationship between the child and the parent. Moreover, the law adds another dimension to the concept by relating it to support. If the child’s property is more than sufficient for her own maintenance, it may be used for the collective daily needs of the family.167 This attaches a responsibility aspect to the concept of guardianship. In this sense, the child is seen as involved – as an actual contributor – in the maintenance of the family making such child a critical part of the family’s survival, economic or otherwise.
C. FAMILY HOME
The family home, established jointly by the husband and wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated.168 The beneficiaries of the family home include the parents, ascendants, descendants, brothers and sisters, whether the relationship is legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support.169 As an important representation of the family, the family home becomes a principal site for defining who the child is. Allatt writes: “it [the concept of home] concerns feelings of belonging, of moral claims to be there, as well as material and emotional support and physical place.”170
The family home is primarily constituted by husband and wife or an unmarried head of the family. A dominant interpretation of this legal provision is that children are merely incidental in the constitution of the family home. If the family home is to be sold, only the consent of
167 Family Code, supra note 53, art. 226, par. 2. 168 Ibid, art. 152. 169 Ibid, art. 154. This enumeration shows the extent of family relations in Philippine society. It is also an indication of the composition of homes in the Philippines. 170 Pat Allatt, “Conceptualizing Parenting from the Standpoint of Children: Relationship and Transition in the Life Course” in Julia Brannen and Margaret O’Brien, eds, Children in Families Research and Policy (London: The Falmer Press, 1996) at 132.
71 majority of the beneficiaries of legal age is required. Only the adult residents of the family home participate in these important matters that directly affect the child.
Viewed from the emergent paradigm, children actually influence the constitution of the family home. Such influence is an actual engagement of children where they are active participants in the constitution of the family home. The occupancy of any of the beneficiaries, including children, can constitute a home as a family home. Likewise, so long as any of the beneficiaries actually reside in the family home, it continues to be such and is exempt from execution, forced sale or attachment.171 Furthermore, despite the death of one or both spouses or of the unmarried head of the family, the family home shall continue as such for a period of 10 years or for as long as there is a minor beneficiary.172 These provisions show how a child influences and shapes the constitution of the family home. Furthermore, such role of the child within the legal concept of the family home is understood once again as part of the network of relations in the family. The child then, just like any other member of the family, is an important link in this circle of relationships which is the basis of the constitution of the family home. As well, the child once again serves as the focal point in what the family home represents, the network of relationships embodied in the family. As Jocano observes, “functionally, the family is the only ‘corporate unit’ in the society in that practically all group actions emanate from and are unified first in the family.”173
D. FAMILY AFFAIRS, “CHILD-REARING” AND DISCIPLINE
There is an express recognition in Philippine law of the participation of children with respect to family affairs. The Child and Youth Welfare Code provides:
“Whenever proper, parents shall allow the child to participate in the discussion of family affairs, especially in matters that particularly concern him. In cases involving his discipline, the child shall be given a chance to present his side.”174
Reading this provision from the child-as-dependent dominant perspective diminishes the law’s recognition of the actual ability of the child to participate. From this interpretation, the law is
171 Family Code, supra note 53, art. 153. 172 Ibid, art. 159. 173 Jocano, supra note 105 at 62. 174 Child and Youth Welfare Code, supra note 63, art. 47.
72 formulated as a grant of permission from the standpoint of parents. It is understood that children may participate in the discussion of family affairs so long as their parents allow them. This is further qualified by the important proviso that such permission is granted only “whenever proper,” thus limiting the participation of children even more. This legal construction is very much consistent with the view that parents determine which rights their children may enjoy. It also confirms the accepted cultural norm that parents “bestow” rights on their children as discussed in Section III on the dominant understandings of family socialization.
Filipino parents are given the great responsibility of raising their young, weak, dependent, passive and walang-isip (mindless/cannot think for themselves) children. As such, parents find it difficult to surrender their power and not to impose their own standards, their own wishes on their children. They are comfortable with the role of guide and disciplinarian, in which they use their own lives as guides or templates for their children and in which practically any method is allowed for them to keep their children on the right path.175 Since parents know best, they are to be trusted regarding decisions directly affecting the child. This practice rests on the cultural assumption that no parent wishes harm on their children (walang masamang hangad ang magulang sa kanyang anak).176
Looking specifically at the context of discipline within the family, it is not surprising to see once again the influence wielded by parental authority. The law expressly recognizes the right of parents to discipline their children in both the Child and Youth Welfare Code and the Family Code:
Parents have the right to discipline the child as may be necessary for the formation of his good character, and may therefore require from him obedience to just and reasonable rules, suggestions and admonitions.177
The parents and those exercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties:
175 Ong, supra, note 55. 176 Ibid. The penal law even explicitly exempts parents from criminal liability for any physical injuries done on their child. The Revised Penal Code, supra note 131, art. 263, in part, states that: “The provisions of the preceding paragraph [referring to the crime of serious physical injuries] shall not be applicable to a parent who shall inflict physical injuries upon his child by excessive chastisement.” 177 Child and Youth Welfare Code, supra note 63, art. 45.
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(7) To impose discipline on them as may be required under the circumstances…178
The dominant understanding of family socialization maintains that since parents have the duty to “transform” their weak and immature children into “good” and responsible adults, parents are allowed to use practically any method in discharging this responsibility.179 When children are seen as dependents and passive recipients of this socialization function, it then becomes the task of parents to correct the child using any means. Thus, the terms discipline and punishment are used interchangeably.180 Guthrie and Jacobs confirm that Filipino parents deem the following as the most effective punishments of children: whipping with a belt, a slipper or a stick, spanking, pinching, ear-pulling, slapping, locking in a room, tying to a pole and tying in a sack.181 These practices are a necessary response to the belief that “children possess a natural penchant to do mischief.”182 Protacio-De Castro describes Philippine attitudes towards discipline:
The child who has done something wrong is punished in the hope that the behavior will not be repeated. The belief is that pain must be felt for learning to take place. The child may learn to fear getting caught and to avoid repeating the same behavior if the punishment is severe. Thus, for punishment to be effective, it must be severe and the severity must increase with subsequent infractions.183
The law does not seem to distinguish between discipline and punishment. The focus really is the formation of “good behavior” on children. The experience of children, who are on the receiving end of the punishment, is shaped by the obligation of obedience that has been set for them. Guthrie and Jacobs explain:
Since Philippine parents expect that their children will be penitent after they have been punished, the children learn to accept punishment rather stoically. The youngster is often required to fetch the instrument of punishment and to bend over to receive the treatment. After the punishment and the tears, he may sit quietly saying with his eyes and his posture what he dare not say with his mouth. In a one-room house the mother and her child are not able to get away from one another. The mother often takes this as an opportunity for advising and in the process relieves herself of her anger and proclaims her adherence to family values.
178 Family Code, supra note 53, art. 220 par. 7. 179 Ong, supra, note 55. 180 It is not surprising the relatively high incidence of physical punishment by parents on their children in the Philippines is included in the World Health Organization’s World Report on Violence and Health. See Etienne Krug, Linda Dahlberg, James Mercy, Anthony Zwi and Rafael Lozano, eds, World Report on Violence and Health (Geneva: World Health Organization, 2002). 181 George Guthrie and Pepita Jacobs, Child Rearing and Personality Development in the Philippines (University Park: Pennsylvania State University Press, 1966). 182 Protacio, et al, supra note 80 at 104. 183 Protacio-de Castro, supra note 88.
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The child, meanwhile, is denied an opportunity to retaliate and is more or less compelled to suppress his anger and bitterness.184
The emergent paradigm, on the other hand, allows us to open family affairs as an opportunity for children to participate in the structuring of the family. Instead of simply conceiving childhood as a product of parenting, the emergent paradigm allows us to see parenting as a response to the actual engagements of children.185 Socialization then becomes reciprocal acknowledging the interdependence between parents and children. Within this scheme, the recognition of children as active participants in the discussion of family affairs highlights a fundamental responsibility of children in the maintenance of harmonious relationships. The participation of children in family affairs should be seen within the context of establishing connections among the network of kins. Such engagement of the child is not meant to assert individual autonomy as understood in Western liberal traditions but rather to share one’s self to the members of the family. Thus, participation within family affairs does not signify asserting an individual’s self, rather, it affirms the kapwa as an inclusive sense of personhood.
This relational framework of the participation of children also recasts our understanding of the experience of child rearing. Specifically, it clarifies the concept of discipline and how this differs from punishment. Discipline and punishment represent two very distinct beliefs about children in the family.186 For example, in the Civil Code of 1950 based largely on the Spanish Civil Code of 1888, parents had the power with respect to their unemancipated children “to correct them and to punish them moderately.”187 However, in the current Family Code, the law simply provides for the imposition of “discipline as may be required under the circumstances.”188
184 Guthrie and Jacobs, supra, note 181 at 112-113. 185 Allison James & Adrian James, Constructing Childhood: Theory, Policy and Social Practice (Houndmills, Basingstoke, Hampshire: Palgrave Macmillan, 2004). 186 Susan Bitensky, “Spare the Rod, Embrace our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment of Children” (1998) 31 U Mich J L Reform 353 at 399 for example, explains of how corporal punishment is violative of the child’s right to participation as “participation implies dialogue, mutual respect and tolerance. It facilitates the negotiation of solutions and promotes the growing responsibility of children. Similarly, participation in family life is a form of dialogue which leads to the ability for negotiation and peaceful conflict resolution.” 187 Civil Code, supra note 132, art. 316, par. 2. 188 Family Code, supra note 53, art. 220 (7).
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In a study189 conducted on child discipline and child abuse, both Filipino adults and children agree that it is the discipline of children that is necessary. It is the responsibility of parents to discipline their child otherwise, the parent is seen as not only having failed to fulfill a social obligation but more importantly, having been abusive. Discipline is not only focused on instilling values and correcting behaviors but it is also an expression of love and care of parents.190 In fact, discipline is considered “as an essential tool in maintaining a harmonious relationship within the family.”191 Equally important is how children themselves view discipline as a form of their engagement in the family:
Children of various ages look at child discipline as a manifestation of their parents’ love and concern. One respondent commented that he felt happy whenever his parents discipline him because mahalaga pala ako sa kanila (I am important to them). For the children-respondents, discipline helps them distinguish between right and wrong and develop righteous attitudes….Child discipline is essential so children learn from their own mistakes, change their attitudes and do what is right. The children-respondents also consider discipline important to enable them to grow healthy, strong, bright and respectful (underscore added).192
This understanding of child discipline affirms the connection of children to the family, which represents, in turn, a connection to themselves. Children therefore see themselves with the responsibility of maintaining these relational interdependencies. This defines their status as active social actors whose behavior evokes consequences.
E. PARENTAL CONSENT AND ADVICE
The legal requirements of parental consent and advise before the marriage of a “child”193 has traditionally been understood as a constraint on the child. As discussed earlier, the law provides that emancipation takes place upon the attainment of majority, which commences at the age of 18. However, although an 18 year old is emancipated and qualified for all acts of civil life, that person still requires parental consent until the age of 20 to contract marriage.194 The law requires
189 Understanding Child Discipline and Child Abuse in the Filipino Context (Manila, Philippines: Plan Philippines, 2005). 190 Ibid at 12. 191 Ibid. 192 Ibid at 13. 193 The term child in this section is used to denote “a child only in relation to the parent” because according to Philippine law, a person who is to get married must be 18 years and is thus no longer a child. 194 Family Code, supra note 53, art. 236, par. 2.
76 that contracting parties to a marriage from the ages of 18 to 20 must exhibit to the local civil registrar the consent to their marriage of their father, mother, surviving parent, or guardian or persons having legal charge of them, in the order mentioned.195 The absence of such parental consent makes the marriage voidable or annullable.196 As explained by Sta. Maria:
The law considers persons of the age of at least 18 years and below 21 years as not possessing that degree of maturity to be able to comprehend thoroughly the consequences and serious responsibilities of marital relations. Hence, before, marriage, he or she must obtain parental consent. Any marriage contracted by persons of these ages are considered annullable at the instance of the party whose parent, guardian or person having substitute parental authority did not give his or her consent and of the parents, guardian or person having substitute parental authority over the party in that order. The opportunity to annul the marriage exists in this situation so that the probability of a troublesome, ill-advised or stormy marriage relationship due to unpreparedness of the contracting parties financially, emotionally and psychologically to enter into such relationship can be terminated or prevented.197
The drafters of the law recognize that an 18 year old would most likely still be in school and thus dependent on her parents.198 This suggests that the parental consent requirement is a “repayment” on the part of the child for the support, whether financially or otherwise, given by the parents.199 Such a motivation clearly articulates the concept as an obligation.
Additionally, the law has also created a requirement of parental advice. Contracting parties to a marriage who are between the ages of 21 and 25 are obliged to ask their parents or guardians for advice upon the intended marriage.200 If they do not obtain such advice or if it is unfavorable, the marriage license cannot be issued until three months following the completion of the publication of the application.201 This highlights the oft-repeated justification of parental authority – that parents know best and that they only make decisions for the good of their children. These twin requirements of parental consent and advise speak of how a child is always a child relative to the parents.
195 Ibid, art. 14. 196 Ibid, art. 45, par. 1. 197 Sta. Maria, supra, note 133 at 267. 198 Records of the Senate, June 6, 1989 at 69. 199 Incidentally, support defined by law for the education of a child includes schooling or training for some profession, trade or vocation, even beyond the age of majority. Family Code, supra note 53, art. 194. 200 Family Code, supra note 53, art. 15. 201 Ibid.
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Seen as an engagement of the child, parental consent and advice are two important norms that speak of an important responsibility of the child within the family. When a child asks for consent or advise from the parents before marriage, such engagement once again establishes the connection among the members of the family. What this means is that the child is not the only one to enter into this new relationship in marriage. The child brings an entire network of kin and relations. Going back to an earlier discussion, upon marriage, the man and the woman bring with them their entire family into the new relationship. Thus, even before such union happens, the members of one’s family take part in that decision to marry. The legal requirements of consent and advice, in fact, recognize the central role of the child in that structure of kinship. As such, they are constructed not merely as obligations but more importantly as responsibilities that such a child undertakes.
VI. CONCLUDING REFLECTIONS:
PROSPECTS FOR THE PARTICIPATION OF CHILDREN WITHIN THE PHILIPPINE FAMILY
It is clear in Philippine law that the family has been accorded preferential status. Such safeguarding has been used to subsume the rights of its members for the benefit of the institution. However, a careful examination of the understanding of the family in the Philippines reveals that more than an institution, the family is a network of relationships. This means that the family is no more meaningful than the relationships existing within it. These relational interdependencies provide the basis for a collective sharing of values and a deep respect for the dignity and inherent worth of a fellow human being. As such, protection of the rights of individuals is perfectly compatible with being in a relationship. This recognition provides an opening for revision of the legal framework to accommodate respect for the unique value of each person, especially children.
The prevalent construction of the child within the context of the family in the Philippines is that of dependency. As a dependent, the expectations from the child are seen as obligations. This is manifested, for example, in the twin traditions of unquestionable parental authority and child obedience. In addition, deeply ingrained social norms label the child as weak, vulnerable and incompetent. The Committee on the Rights of the Child itself has observed of the Philippines that “children’s right to participation and free expression of their views is still limited…partly
78 due to traditional attitudes in society.”202 In this regard, it has been recommended that the Philippines strengthen its efforts to promote, especially within the family, respect for the views of the child and facilitate their interactive participation in all matters affecting them.203
What the emerging paradigm of children and childhood brings is the possibility of the construction of the child as an active participant in the structuring of the family. Children are not mere passive recipients of the family socialization. This recognizes them as active social participants whose acts evoke consequences. Fundamental in this definition is the recognition of the personhood of the child; the experiences of the child “as a child” within the family; and the relationships established, maintained and preserved.
Through the lens of childhood studies and children’s rights, we are able to see an emerging paradigm of childhood. Understanding that the law is not exclusively based on a construction of the child as a dependent opens a door for a new appreciation of the engagements and influence of the child within the family. This, however, is not to say that legal reform is unnecessary in dealing with children in the family. With the law still controlled by the dominant paradigm of childhood, there is a need to re-evaluate the current legal landscape. What this chapter undertakes to show is that within the current legal framework, there are powerful and effective means of advocating for the participation of children. The emerging paradigm of childhood, highlighting the child’s active role in the family, can be used to identify the seeds of a competing construction of the child as interdependent which offers the possibility for greater realization of the participation of children. It is through giving significance to the child’s identity in the here and now that we can see them as active participants in the structuring of the family.
Reframing obligations as responsibilities empower children as active participants in the structuring of the system of relationships. As responsibilities, these expectations become tasks that children undertake. Children are then recognized as partakers in the construction of their own lives, the lives of those around them and of the societies in which they live. This underscores their capacities to express their ideas and participate in making choices on matters
202 United Nations Committee on the Rights of the Child, CRC Concluding Observations: Philippines, 39th Sess, UN Doc CRC/C/15/Add.259 (2005) at par. 29. 203 Ibid at par. 30.
79 and events that affect them and their families.
The reality of Philippine society, as reflected in the family, is that there is a mutual sharing of rights and responsibilities. This is emphasized in the value of interconnectedness. The philosophy of kapwa underscores a consciousness of shared identities. Thus, the child’s participation within the family is not meant to break familial ties. Rather, it is meant to strengthen them. The relationships that the child negotiate within the structure of kin stem from collective values shared with the whole of humanity and the deep respect for the dignity and inherent worth of a fellow human being. Indeed “family relationships are based on inter- dependency of family members, and not merely on an assumption of children’s dependency on adults.”204 Given the immense power of the law, it can be an important means for recontextualizing children within their families and reformulating relationships negotiated within those structures. This also involves recognizing the inherent dignity and worth of a child. Such acknowledgment, in turn, transforms the intrinsic quality and meaning of actions of the child and actions towards the child.
204 Gerison Lansdown, The Evolving Capacities of the Child (Florence, Italy: UNICEF Innocenti Research Centre, 2005) at 58.
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CHAPTER II
THE CHILD, EDUCATION AND THE LAW
This boy did not go to school. He went to play in the water. He does not like to go to school. He does not like to read and write. He does not like his teacher. He will not make jars and baskets. He will not get water for his mother. He will not carry the baskets for her. He is not a good boy. He is a bad boy. He will not be a good man.1
From the point of view of society, formal educational institutions are developed to prepare younger members to effectively carry out the legitimate roles of adult social life: to meet the expectations mature members of society have of them and to perpetuate the existing social order after older generations die out. Schools do, in fact, usually transmit much of the dominant culture of the society and, at the same time, imbue some level of commitment to that society and to its culture. The content of the transmitted culture includes, in large measure, the values, norms, knowledge, beliefs, and symbols upon which there is general social agreement. In the case of disagreement, it includes those characteristics that the most powerful groups in the society want to perpetuate.2
One of the most evident symbols of difference between children and adults is the school. The belief that children should be in school highlights the distinction drawn between childhood and adulthood. While the adult is thought to be rational, autonomous and independent, the child on
1 Glenn May, Social Engineering in the Philippines: The Aims, Execution, and Impact of American Colonial Policy, 1900-1913 (Connecticut: Greenwood Press, 1980) at 101 citing David Gibbs, The Insular First Reader (New York, 1904). 2 Audrey James Schwartz, The Schools and Socialization (New York: Harper & Row, 1975) at 94.
81 the other hand lacks the capabilities to participate in the adult world.3 Given this disparity, the child is assumed to occupy “a special and separate world, regulated by affection and education, not work or profit.”4
The “special place” for the child has long been the subject of discourse. Philippe Aries famously argued that in medieval society, the idea of childhood did not exist.5 This meant that society then did not distinguish the child from the adult and “as soon as the child could live without the constant solicitude of his mother, his nanny or his cradle-rocker, he belonged to adult society.”6 Even for schools, Aries argued that it was not a separate world intended for children:
On the contrary, for a long time the school remained indifferent to the separation and distinction of the ages, because it did not regard the education of children as its essential aim. Nothing predisposed the medieval Latin school for this function of moral and social education. The medieval school was not intended for children: it was a sort of technical school for the instruction of clerics, ‘young or old’ as Michault’s Doctrinal put it. Thus it welcomed equally and indifferently children, youths, adults, the precocious and the backward, at the foot of the magisterial rostrum.7
A number of authors have theorized on the emergence of this separate world of childhood. Zelizer in her seminal work, Pricing the Priceless Child,8 argues that the redefinition of children, at least in the United States, was part of a cultural process of sacralization of children’s lives. The result was an understanding that “properly loved children, regardless of social class, belonged in a domesticated, nonproductive world of lessons, games and token money.”9 Edwards, meanwhile, maintains that education as a process of institutionalisation has regulated much of children’s lives. She writes of institutionalisation:
It has been historically promoted by the introduction of compulsory schooling in the industrialised world, and children’s accompanying exclusion from substantial paid work activity. This process addresses children’s increasing compartmentalisation in specifically designated, separate and protected organised
3 David Archard, Children: Rights and Childhood (Milton Park: Routledge, 2004). 4 Viviana Zelizer, Pricing the Priceless Child: The Changing Social Value of Children (New York: Basic Books, Inc., 1985) at 209. 5 Philippe Aries, Centuries of Childhood: A Social History of Family Life (New York: Alfred A. Knopf, 1962). See however Archard, supra note 3 who argues that what was lacking was not a concept of childhood but “our” conception of childhood. 6 Ibid at 128. 7 Ibid at 330. 8 Zelizer, supra note 4. 9 Ibid at 11.
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settings, hierarchically supervised by professionals and hierarchically structured according to age and ability.10
Prout, another leading scholar in childhood studies, postulates that within the last few years there has been a progressive relocation of children to special and protected spaces arising from increased levels of institutional control over them.11 This, according to him, is evidenced by such phenomena as compulsory schooling, formal exclusion of children from work and the process he calls domestication.12
The “confinement” of the child in schools, as well as in homes, best represents the special and separate world of childhood. These two sites of engagement, by “conceptually constraining and substantively containing”13 children, are deemed as “the only proper place” for them. The school and the home are “bounded settings where children not only empirically tend to spend increasing amounts of time, but also prescriptively where they should be located.”14 The United Nations Convention on the Rights of the Child (UNCRC), for example, makes primary education compulsory;15 encourages the development of different forms of secondary education;16 and works towards the availability and accessibility of both higher education17 and general and vocational education.18 It even mandates that the state take measures to encourage regular attendance at schools and to reduce drop-out rates.19 The fact is that education itself has been recognized as necessary for the full development of the human personality.20 Coomans writes:
Education is a social good, because it creates opportunities and provides people with choices. In this sense, education is an end in itself. However, it is also a
10 Rosalind Edwards, “Introduction: Conceptualising Relationships Between and Home and School in Children’s Lives” in Rosalind Edwards, ed, Children, Home and School: Regulation, Autonomy or Connection? (London: RoutledgeFalmer, 2002) at 5. 11 Alan Prout, “Participation, Policy and the Changing Conditions of Childhood” in Christine Hallett and Alan Prout, eds, Hearing the Voices of Children Social Policy for a New Century (London: RoutledgeFalmer, 2003). 12 Ibid. Prout defines domestication as the progressive removal of children from the streets and other public spaces and their relocation in special protected places. 13 Julia Brannen and Margaret O’Brien, “Introduction” in Julia Brannen and Margaret O’Brien, eds, Children in Families Research and Policy (London: The Falmer Press, 1996) at 1. 14 Edwards, supra note 10 at 4. 15 Convention on the Rights of the Child, 1577 UNTS 3 (entered into force 2 September 1990) [UNCRC], art. 28(1)(a). 16 Ibid, art. 28(1)(b). 17 Ibid, art. 28(1)(c). 18 Ibid, art. 28(1)(d). 19 Ibid, art. 28(1)(e). 20 Universal Declaration of Human Rights, GA Res. 217A (III), UN GAOR, 3d Sess. Supp. No. 13, UN Doc A/810 (1948) 71 [UDHR], art. 26(2).
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means to an end, because it helps to achieve economic growth, health, poverty reduction, personal development and democracy.21
Consequently, education is accepted as a right with a solid basis in international human rights law.22 The UNCRC proclaims the right to education in Art. 28:
1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need; (c) Make higher education accessible to all on the basis of capacity by every appropriate means; (d) Make educational and vocational information and guidance available and accessible to all children; (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.
2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.
3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.23
Given the centrality of education in the lives of children, this chapter examines how the discourses on education have impacted the educational experiences of children. Traditionally, conversations about education have focused on whether the educational system is a site of
21 Fons Coomans, “Content and Scope of the Right to Education as a Human Right and Obstacles to its Realization” in Yvonne Donders and Vladimir Volodin, eds., Human Rights in Education, Science and Culture: Legal Developments and Challenges (UK: Ashgate Publishing Co., 2007) at 185. 22 See e.g. UDHR, supra note 20, art. 26; United Nations Educational, Scientific and Cultural Organization, Convention Against Discrimination in Education, online: UNESCO
84 cultural transformation or simply a vehicle for the reproduction of the existing state of affairs.24 In these debates, there is hardly any acknowledgment of the voice of children and their engagements within education. Children are simply positioned as “passive receptors of implicit and subtle messages about identity inscripted in the educational process and the policies through which schooling takes place.”25 As in the dominant understanding of the family, where socialization has been viewed as the “adult concern for the reproduction of social order,”26 the dominant vision of education has been understood simply as a system to prepare children “to effectively carry out the legitimate roles of adult social life.”27
This chapter shows the strong presence of the dominant paradigm of education in Philippine laws and policies. Within this framework, Filipino children – positioned as “non-citizens” who need education “to become caring, self-reliant, productive and patriotic citizens (emphasis added)”28 – are merely the targets of the educational system. Thus, under this approach, the educational environment is principally adult-centric and control-driven through which children are simply prepared to become responsible citizens.29 But at the same time, the chapter also shows that within the current legal context of the Philippine educational system, there is a concrete articulation of an educational framework that, contrary to the dominant paradigm, opens up a space for the participation of students in schools. In this alternative view, there is an acknowledgment of the role of children within the process of education and a recognition of their rights within that system. Given the existence of the two frameworks in Philippine laws and policies, the chapter reveals an intricate Philippine legal environment with respect to education.
24 See e.g. Michael F D Young, ed, Knowledge and Control: New Directions for the Sociology of Education (London: Collier-Macmillan Publishers, 1971). 25 Allison James & Adrian James, Constructing Childhood: Theory, Policy and Social Practice (Houndmills, Basingstoke, Hampshire: Palgrave Macmillan, 2004) at 117. 26 Alan Prout and Allison James, “A New Paradigm for the Sociology of Childhood? Provenance, Promise and Problems” in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood, 2d ed (London: The Falmer Press, 1997) at 13. 27 Schwartz, supra note 2. 28 Republic Act No. 9155 (2001) An Act Instituting a Framework of Governance for Basic Education, Establishing Authority and Accountability, Renaming the Department of Education, Culture and Sports as the Department of Education, and for other Purposes [Governance of Basic Education Act of 2001], s. 2. 29 See e.g. Jay Yacat and Michelle Ong, Beyond the Home: Child Abuse in the Church and School (Quezon City, Philippines: Save the Children UK, Philippines and Psychosocial Trauma and Human Rights Program, Center for Integrative and Development Studies and University of the Philippines, 2001); Richard Velayo, “A Perspective on Child Abuse in the Philippines: Looking at Institutional Factors” in Florence Denmark, et al, eds, Violence in Schools: Cross-National and Cross-Cultural Perspectives (New York: Springer Science+Business Media, Inc, 2005).
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In particular, the chapter demonstrates a dichotomy of frameworks in specific state actions that deal with the status, conditions and circumstances of children within the system of education. The principal argument is that in these instances of state action where there seems to be an expressed recognition of the participation of children i.e. upholding of the fundamental rights and freedoms of students in schools; initiation of a learner-based curriculum; institution of an inclusive educational content and performance standards, these are undermined by rationalizations that still proceed from the overarching socialization function of education to the exclusion of children. Thus, even with a clear endorsement of the emerging framework, the effects of such an approach are limited by the heavy influence of the dominant paradigm that fundamentally excludes children. Because the dominant paradigm still holds a powerful sway, the engagements of children are obscured and their role in the system of education is made incidental. Consequently, this places children “outside of society and public life”30 where they are assigned to “a conceptual space that lacks the legal, moral and political values to which adult citizens supposedly subscribe.”31 As such, there is a legitimation of the construction of childhood simply as a preparation for adulthood and citizenship; and teaching children is understood as the process of forming them to become “proper” adults and responsible citizens.32
The chapter advances an alternative educational framework based on the language of “shared purpose” found in the current law. This is very much consistent with the indigenous relational philosophy of kapwa. Such a framework challenges the overarching authority of education. It opens up the possibility to shift the focus of education from its socializing function towards the recognition of the interdependent engagements of the different members of the educational community – including children. The framework emphasizes the deep attachment of the members of the community to their system of education that only in an atmosphere of engagement can the true goals and objectives of education be fulfilled. This allows all the members of the educational community to be engaged with their system of education not only through the exercise of their rights but also through the establishment of their connections as expressed in reciprocal responsibilities and relationships.
30 James and James, supra note 25 at 123. 31 Ibid. 32 See generally Brenda Simpson, “Regulation and Resistance: Children’s Embodiment During the Primary- Secondary School Transition” in Alan Prout, ed, The Body, Childhood and Society (Great Britain: Macmillan Press Ltd., 2000).
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The chapter begins in Section I by laying down the dominant representations of children and childhood within the prevailing understanding of the educational system. It looks at how childhood has been distinguished from adulthood by constructing children as incompetent, irrational and incapable non-adults. Through such a depiction, education is understood as the means by which children are developed and pushed towards the more preferred status of adulthood. This construction of children creates the restrictive environment within which they are educated and the corresponding limited opportunities available to them within this context.
Section II examines the emerging paradigm of childhood that recognizes the diversity of the lives of children. This, in turn, exposes the inadequacy of the dominant representations of childhood to account for the actual experiences of children. Within this emerging paradigm, children are also recognized as social actors and active informants of their lives. Not only does this open up the educational process to the engagement of children but it also reconceptualizes the school setting as a site in which children participate in the discovery of their identities as “selves”.
The next section then demonstrates and explores the intricate legal environment of the Philippine educational system where there is a heavy influence of the dominant paradigm but at the same time there is a concrete attraction to the emerging paradigm. Section III first looks at the dominant legal understandings of the educational system in the Philippines where there is a heavy and reflexive emphasis on the role of the school “to prepare the child for the responsibilities of adulthood.”33 Within this framework, children are simply seen as non-citizens and non-adults who need education to develop, improve and grow-up into both citizenship and adulthood. This construction not only tends to exclude the diversity in children’s lives, it also obscures the active engagements of children within the educational system. This then justifies the characterization of childhood as a state of incapacity and irresponsibility with children being treated as the passive recipients of education.
This same section also explores an alternative vision of education that has found expression in the law. Through an articulation of the values of shared purpose and contextualized governance
33 Presidential Decree No. 603 (1974) The Child and Youth Welfare Code [Child and Youth Welfare Code], art. 1.
87 in education, there is the possibility of shifting state focus from the socializing function of educational institutions towards the recognition of the interdependent engagements of the different members of the educational community. Within this alternative framework, there is, in fact, recognition of students as integral members of the educational community. As such, there is a more concrete opportunity to acknowledge the diverse lives of students and their active role in ensuring that the values, needs and aspirations of the educational community are reflected in the system of education. However, because of the still pervasive influence of the dominant understanding of education, this alternative framework has had limited effect on the system of education in general and the educational experience of students in particular. The struggle between these two educational frameworks and the extent of their effects are clearly demonstrated by the specific instances of state responses to the engagements of children within education discussed in the succeeding section.
Section IV examines two specific contexts in which the state has been asked to respond to the engagements of students within the educational system: the first context involves the judiciary, and a series of Supreme Court decisions in which the court had been asked to recognize and protect students’ exercise of their rights in schools; the second context involves the executive branch, through the Department of Education and two recent attempts to initiate and implement major reforms in curriculum and educational policy. In each context one finds some recognition of the participation and engagement of children but this recognition is limited by the overwhelming influence of the dominant paradigm and a reflexive reversion to the overarching socialization function of education to the exclusion of children. Thus, children continue to be seen predominantly as the passive targets of a “proper” education that seeks to cure them of their inadequacies and prepare them to take their place as a productive member of society. In the end, the engagements of children remain incidental and their educational experience remains authoritative and hierarchical, legitimized by their perceived inherent vulnerability and dependency.
Finally, Section V concludes by drawing on the language of shared purpose present in Philippine education laws and policy to promote an alternative educational framework reflective of the indigenous relational philosophy of kapwa. As adverted to earlier, this approach opens up the possibility to shift the focus of education from its socializing function towards the
88 recognition of the interdependent engagements of the different members of the educational community – including children. With this understanding, engagements of children within education are re-interpreted as expressions of their deep connections to the educational community and not merely the exercise of rights. Such a re-interpretation involves seeing these engagements as reciprocal responsibilities and relationships that leads towards a transformed educational environment.
I. THE “ABSENCE” OF CHILDREN IN EDUCATION:
DOMINANT REPRESENTATION
Education laws and policies are largely responsible for the kind of environment that children experience while they are in school. These laws and policies are based on adult representations of the child. More particularly, they are based on how adults see children and childhood. Because adults use adult standards to define children, laws and policies have been based on the child’s difference from adults. Christensen and Prout aptly describe the dominant construction of childhood:
Childhood is ascribed special meaning as a phase in human life; the child is surrounded with care and concern which endeavor to prepare and protect the child; at the same time these perceptions attribute value to childhood and the child mostly in relation to a future adult life through the status of ‘non-adult’; the child is more valued as a being in process, that is, being socialized towards a goal through which to take his or her place in society, than in his or her present state.34
Schools, in turn, provide the socialization “wherein children are drawn along a trajectory leading them to the (preferred and dominant status) of adult.”35 As Durkheim asserts: “In order that there be education, there must be a generation of adults and one of youth, in interaction, and an influence exercised by the first on the second.”36 The disparity between children and adults and the uni-directional influence exercised by the latter over the former consequently fashions children as non-citizens whose rights and responsibilities are in the future. McDonald writes of
34 Pia Christensen and Alan Prout, “Anthropological and Sociological Perspectives on the Study of Children” in Sheila Greene and Diane Hogan, eds, Researching Children’s Experience Approaches and Methods (London: Sage Publications, 2005) at 45. 35 Catherine McDonald, “The Importance of Identity in Policy: The Case For and Of Children” (2009) 23:4 Children and Society 241 at 245. 36 Emile Durkheim, Education and Sociology, translated by Sherwood Fox (Glencoe, Illinois: The Free Press, 1956) at 67.
89 this future-looking construction of children: “[It] render[s] them as immature adults in the making, captured and propelled by an inevitable telos of cognitive, physical, emotional and social development towards some idealised and imagined end.”37
This construction of children also translates into dependency. Education laws and policies depict children as wholly dependent on adults. Such dependence heralds the social engineering goals of education that reflect the idea of the tabula rasa child. In the words of Durkheim:
Education is the influence exercised by adult generations on those that are not yet ready for social life. Its object is to arouse and develop in the child a certain number of physical, intellectual and moral stages, which are demanded of him by both political society as a whole and the social milieu for which he is specifically destined.38
James and Prout have graphically characterized the child’s learning in traditional paradigms:
The child is portrayed, like the laboratory rat, as being at the mercy of external stimuli: passive and conforming. Lost in a social maze it is the adult who offers directions. The child, like the rat, responds accordingly and is finally rewarded by becoming ‘social’, by becoming adult.39
In accordance with this dominant characterization of children and education, laws and policies rely heavily on homogeneity to keep the child in check within the school setting. Universalizing the experiences and capacities of children brings order and consistency to the educational system. Owing largely to developmental assumptions, every child is understood to neatly fit into age-appropriate skills and behavior. This makes it possible to accurately chart the educational course of children. On a pragmatic level, one can gauge children’s learning and understanding expectancies at given age levels. In turn, such assessments dictate the content of educational materials and the activities children are allowed to undertake. Educators often refer to the abilities of students as though making factual observations.40 This attitude sanctions the practice of measuring the competencies of a child against those of other children of the same age. Those
37 McDonald, supra note 35 at 244. 38 Durkheim, supra note 36 at 71. 39 Prout and James, supra note 5. 40 Lise Bird, “Creating the Capable Body: Discourses about Ability and Effort in Primary and Secondary School Studies” in Berry Mayall, ed, Children’s Childhoods: Observed and Experienced (London: The Falmer Press, 1994).
90 who “measure up” to the standard are identified as “normal”, those who fall below the competency mark, as deviants or failures.
II. ACKNOWLEDGING CHILDREN IN EDUCATION:
EMERGING PARADIGM
The distinction between children and adults as laid down by the dominant paradigm in the previous section has brought about the discourse of the “separate and special place” for children. The dominant representation of education, its socializing function and the corresponding construction of children within this environment have, in fact, furthered the notion referred to in the beginning of this chapter of a “conceptually constraining and substantively containing”41 world for children embodied in both the school and the home.
Both childhood studies and children’s rights discourse have exposed the inadequacy of the dominant representation of childhood to account for what it is to be a child. This has brought about a demand to recognize the diversity of the lives of children around the world. As understood in this thesis, the new understandings of childhood proceed from the premise that childhood is “neither a natural nor universal feature of human groups.”42 Going back to the assertion of Prout and James that “different discursive practices [now] produce different childhoods, each and all of which are real within their own regime of truth,”43 the understanding is that there is neither “the real child” nor an authentic childhood experience. Instead, universalistic and monolithic conceptions of childhood have marginalized more and more children whose realities have either been ignored or downright denied. Such marginalization has led to efforts towards a more particularistic and contextually-sensitive construction of childhood that is more inclusive and representative of the real lives of children.44
As emphasized throughout this thesis, an acknowledgment of the diversity of the lives of children also means a reconstruction of children as “active in the construction and determination of their own social lives, the lives of those around them and of the societies in which they
41 Brannen and O’Brien, supra note 13. 42 Prout and James, supra note 5 at 8. 43 Ibid at 25. 44 Sharon Stephens, “Introduction Children and the Politics of Culture in ‘Late Capitalism’” in Sharon Stephens, ed, Children and the Politics of Culture (New Jersey: Princeton University Press, 1995).
91 live.”45 Such a reconstruction, McDonald writes: “emphasises the competence of children as social actors and as informants about their lives.”46 In particular, with respect to the understandings of children within the educational system, children cannot simply be positioned as “passive receptors of implicit and subtle messages about identity inscripted in the educational process.”47 There must be “a real acknowledgment of and engagement with children as social agents who receive and participate in the educational process as pupils in the school system.”48 It contemplates a school environment where the educational experience is not simply “founded on adult direction, within laid down social norms”49 but where the engagements of students are recognized and they are given opportunities for genuine participation. To underscore this point, children, in fact, are not only seen as social actors but also as agents.50 James and James write:
Since the emergence of the new paradigm in childhood studies, no longer can children be regarded as the passive output of child-rearing practices nor their social development envisaged as the product of a simple biological determinism. Instead, acknowledgment has to be made of the diversity of children’s childhoods and of children’s own part as social agents in shaping their childhood experiences.51
Even the right to education under the UNCRC52 incorporates a new dimension: “education should be child-centered and child-friendly in both a protective and empowering way.”53 By explicitly recognizing the child as the holder of the right, the UNCRC articulates the centrality of the child’s voice and participation in the right to education embodied in its Art. 28.54 In fact, the Committee on the Rights of the Child notes that “respect for right of the child to be heard
45 Prout and James, supra note 5 at 8. 46 McDonald, supra note 35 at 245. 47 James and James, supra note 25. 48 Ibid. 49 Berry Mayall, “Children in Action at Home and School” in Berry Mayall, ed, Children’s Childhoods: Observed and Experienced (London: The Falmer Press, 1994) at 124. 50 Berry Mayall, Towards a Sociology for Childhood: Thinking from Children’s Lives (Buckingham: Open University Press, 2002) at 21 describes a social actor and an agent as follows: “A social actor does something, perhaps something arising from a subjective wish. The term agent suggests a further dimension: negotiation with others, with the effect that the interaction makes a difference – to a relationship or to a decision, to the workings of a set of social assumptions or constraints.” 51 James and James, supra note 25 at 23. 52 Education, in fact, is accepted as a right with a solid basis in international human rights law. See supra note 22. 53 Mieke Verheyde, “Article 28: The Right to Education” in André Alen, et al, eds, A Commentary on the United Nations Convention on the Rights of the Child (Leiden: Martinus Nijhoff Publishers, 2006) at 9. 54 UNCRC, supra note 15.
92 within education is fundamental to the realization of the right to education.”55 As such, the Committee recommends:
In all educational environments, including educational programmes in the early years, the active role of children in a participatory learning environment should be promoted. Teaching and learning must take into account life conditions and prospects of the children.56
The significance given by the UNCRC to the child as an individual reflects the emerging paradigm of children and childhood. Indicative of the emerging paradigm of children in the educational environment is the opening up of opportunities for children to participate on “educational matters, such as the content of the curriculum, exam schedules, pedagogic styles, school facilities (toilets, pupil lockers, vending machines, etc.), sports events, dressing code etc.”57 As well, a broader understanding of the right to education now signifies that the free choice of education is no longer the exclusive prerogative of the parents. Verheyde writes:
The rights the parents have in the education of their children are subject to the underlying principles of the CRC such as the best interest of the child and the evolving capacities of the child. Furthermore, the parental rights should be balanced against the child’s own rights under the Convention, such as the right of the child to receive an education that promotes tolerance and respect of others and its participation rights (emphasis added).58
III. THE LEGAL CONTEXT OF THE PHILIPPINE EDUCATIONAL SYSTEM:
A DICHOTOMY OF FRAMEWORKS
The legal framework of the educational system in the Philippines is embodied in four major documents: the 1987 Philippine Constitution, the Child and Youth Welfare Code, the Education Act of 1982 and the Governance of Basic Education Act of 2001. This section demonstrates the complexity of the Philippine legal environment with articulations of both the dominant and emerging paradigms in the system of education.
55 United Nations Committee on the Rights of the Child, General Comment No. 12 (2009) The Right of the Child to be Heard, CRC/C/GC/12, 51st Sess (2009) at 24, par. 105. 56 Ibid at 24, par. 107. 57 Verheyde, supra note 53 at 58. 58 Ibid at 48.
93
An analysis of these laws reveals the strong presence of the dominant understanding of education with the resolute endorsement of the solemn duty of educational institutions to prepare the child for the responsibilities of adulthood. But at the same time, there have also been concrete expressions in the law that move towards an emerging paradigm where the role of students within education is acknowledged and their rights within the system recognized. However, as will be shown later on, this emerging paradigm has been obscured by the overwhelming emphasis on the socialization function of education to the exclusion of children. This has sanctioned the cycle of perpetuated control and dependency where children continue to be treated simply as the targets of education.
A. THE DOMINANT LEGAL FRAMEWORK IN THE PHILIPPINE EDUCATIONAL SYSTEM:
A UNIVERSAL PRESCRIPTION FOR THE DEVELOPMENT OF FUTURE CITIZENS
The Philippine Constitution, as the supreme law of the land, lays down the general framework of protecting children and inculcating values in its future citizens. The Declaration of Principles and State Policies provides:
The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well- being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.59
In advancing these principles, the Constitution mandates that the State give priority to education60 by “protect[ing] and promot[ing] the right of all citizens to quality education at all levels, and…tak[ing] appropriate steps to make education accessible to all.”61 The State, in fact, is called upon to “establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society.”62 To this end, education is to be assigned the highest budgetary priority by the State.63 Such precedence given to education is
59 1987 Philippine Constitution [Constitution], art. II, s.13. 60 Ibid, art. II, s. 17. 61 Ibid, art. XIV, s. 1. 62 Ibid, art. XIV, s. 2(1). 63 Ibid, art. XIV, s. 5(5). While it is true that under the Constitution, education is assigned the highest budgetary priority by the State, this does not mean that education will, in fact, get the highest budgetary allocation. In Guingona v. Carague, G.R. No. 94571, April 22, 1991 the Supreme Court of the Philippines ruled that “it does not thereby follow that the hands of Congress are so hamstrung as to deprive it the power to respond to the imperatives of the national interest and for the attainment of other state policies or objectives.”
94 necessary to achieve the goals of “foster[ing] patriotism and nationalism, accelerat[ing] social progress, and promot[ing] total human liberation and development.”64 Within the existing constitutional articulation, human liberation and development are to be achieved by children remaining under the care and protection of adults. This understanding is apparent in the declaration that:
[Educational institutions] shall inculcate patriotism and nationalism, foster love of humanity, respect for human rights, appreciation of the role of national heroes in the historical development of the country, teach the rights and duties of citizenship, strengthen ethical and spiritual values, develop moral character and personal discipline, encourage critical and creative thinking, broaden scientific and technological knowledge, and promote vocational efficiency (emphasis added).65
The language of the fundamental law is derived from its predecessors. As early as the 1935 Constitution, the primary aim of schools was – as it is now – “to develop moral character, personal discipline, civic conscience, and vocational efficiency, and to teach the duties of citizenship (emphasis added).”66 In the 1973 Constitution, all educational institutions were required to “aim to inculcate love of country, teach the duties of citizenship, and develop moral character, personal discipline, and scientific, technological, and vocational efficiency (emphasis added).”67
Both the language and tenor of the Constitution are clear in ascribing the status and identity of children. Children are non-citizens who need to develop, improve and grow up by being taught citizenship, values and character – qualities possessed by adults. Childhood is represented as a preparation for adulthood and citizenship; and schools provide the crucial function of shaping children to become “proper” adults and responsible citizens. The value then of childhood lies in its potential worth in the future. The educational system enables children to “progress” to adulthood where they will be considered social, moral and legal beings. Once again, Archard’s observation resonates: “if childhood is a stage, it is a stage on the way to adulthood. Adulthood is not a stage. It is the culmination and goal of development, and thus what brings to an end the sequence of stages.”68 The significant distinction between children and adults is that childhood
64 Ibid, art. II, s. 17. 65 Ibid, art. XIV, s. 3(2). 66 1935 Constitution, art. XIII, s. 5. 67 1973 Constitution, art. XV s. 8, par. 4. 68 Archard, supra note 3 at 44.
95 is understood as an incomplete and less preferred state. This understanding becomes the basis for an educational system in which children are the recipients of “instruction” necessary for their future. This in turn “legitimises the exertion of adult power over children”69 and explains the need to control, to protect and to teach children within the school system.
The other legal instruments detailing educational policy are even more unequivocal in characterizing children’s current incapacities. In its opening provision, the Child and Youth Welfare Code clearly distinguishes the child from the adult when it mandates that the school, like other institutions, for example the church, should assist the home and the State in the “endeavor to prepare the child for the responsibilities of adulthood.”70 Furthermore, the same Code expresses a clear characterization of children as it lays down the aims of education:
(3) Every child has the right to a well-rounded development of his personality to the end that he may become a happy, useful and active member of society.
x x x
(6) Every child has the right to an education commensurate with his abilities and to the development of his skills for the improvement of his capacity for service to himself and to his fellowmen.71
x x x
(12) Every child has the right to grow up as a free individual, in an atmosphere of peace, understanding, tolerance, and universal brotherhood, and with the determination to contribute his share in the building of a better world (emphasis added).72
Although these provisions are articulated as rights of the child, they construct childhood as being characterized by deficiencies. The insistence on preparing the child for the responsibilities of adulthood speaks strongly about the perceived nature of children and childhood. By stating that education prepares the child for the responsibilities of adulthood, the law implicitly constructs childhood as a state of irresponsibility. As well, the assertion by law that children, through education, may develop the capacity to be of service to themselves and others is a clear indication of the law’s acknowledgement of the present incapacity of the child. It tends to
69 McDonald, supra note 35 at 244. 70 Child and Youth Welfare Code, supra note 33, art. 1, par. 6. 71 Ibid, art. 3(6). 72 Ibid, art. 3(12).
96 disregard any moral voice that children demonstrate in their daily lives. The Code even proclaims that a child shall “exert his utmost to develop his potentialities for service, particularly by undergoing a formal education suited to his abilities, in order that he may become an asset to himself and to society.”73 By focusing on the objective of preparing children for adulthood and overlooking the present capacities of children, the law reflects the view of James and James: “And it is through education, through literally turning ‘children’ into ‘pupils’, that they can be introduced into society and come to understand how, as adults, they will find their place within it.”74
Equally revealing is the law’s recognition that a child has the right to grow up to be free, confirming the child’s current lack of freedom. In idealizing the prospects for the child in the future, the law in fact says much more about the realities of the child today. Being free and contributing to “building a better world”75 are traits that children may only aspire to attain.
These representations of children and childhood are similarly echoed in the Education Act of 1982. It declares in its objectives that “all educational institutions shall aim to inculcate love of country, teach the duties of citizenship, and develop moral character, personal discipline and scientific, technological and vocational efficiency (emphasis added).”76 In particular, the educational system aims to:
Provide for a broad general education that will assist each individual in the peculiar ecology of his own society, to (a) attain his potentials as a human being; (b) enhance the range and quality of individual and group participation in the basic functions of society; and (c) acquire the essential educational foundation of his development into a productive and versatile citizen (emphasis added).77
In the later Governance of Basic Education Act of 2001, which supplements and partly amends the Education Act of 1982, the law declares that “the goal of basic education [is] to provide [Filipino children] with the skills, knowledge and values they need to become caring, self- reliant, productive and patriotic citizens (emphasis added).”78 Such a goal was articulated as
73 Ibid, art. 4(4). 74 James and James, supra note 25 at 123. 75 Child and Youth Welfare Code, supra note 33, art. 3(12). 76 Batas Pambansa Bilang 232 (1982) An Act Providing for the Establishment and Maintenance of an Integrated System of Education [Education Act of 1982], s. 4, last par. 77 Ibid, s. 4(1). 78 Governance of Basic Education Act of 2001, supra note 28, s. 2.
97 early as the first Education Act of 1953, which required schools to “develop healthy citizens of good moral character, equipped with the knowledge, habits, and ideals needed for a happy and useful home and community life (emphasis added).”79
Because of these constructions of children in education law, the goals of learning in general and of schools in particular become apparent. In this environment, schools hold the key to learning. Children are treated as mere recipients in the education process.80 The clearest expression of this hierarchical learning is the recognition that the primary right of the student in school is to receive competent, relevant and quality education.81 In the Constitution, the entire section on education focuses on providing a system of education in which the child is seen as an object of the noble aims of education. In this system, there is an emphasis on teaching the rights and duties of citizenship, strengthening values and developing moral character and personal discipline.82 In the Governance of Basic Education Act of 2001, through education, children are the recipients of skills, knowledge and values that they “need to become caring, self-reliant, productive and patriotic citizens.”83 In the Child and Youth Welfare Code, the law constructs the child as a mere target of the educational process when it mandates that the child is to be developed, brought up and improved by an education commensurate with his abilities.84 In fact, in the law it is the school’s responsibility, along with other institutions such as the family and the church, to instill high moral principles in the child.85 Likewise, the representation of the child as a recipient within the educational system is expressed in the child’s obligation to: “Exert his utmost to develop his potentialities for service, particularly by undergoing a formal education suited to his abilities, in order that he may become an asset to himself and to society (emphasis added).”86
79 Republic Act No. 896 (1953) An Act to Declare the Policy on Elementary Education in the Philippines, s. 2. 80 The term “process” here should be used with ambivalence for what takes place in this type of environment is “transference”. 81 Education Act of 1982, supra note 76, sec. 9(1). 82 Constitution, supra note 59, art. XIV, s. 3(2). 83 Governance of Basic Education Act of 2001, supra note 28, s. 2. 84 Child and Youth Welfare Code, supra note 33, art. 3(6). 85 Ibid, art. 14. 86 Ibid, art. 4(4). This provision is almost identical to the duty of the child mandated by the Education Act of 1982, supra note 76, s. 15(1) as follows: 1. Exert his utmost to develop his potentialities for service, particularly by undergoing an [compared to the Child and Youth Welfare Code, the word ‘formal’ is deleted in the Education Act of 1982] education suited to his abilities, in order that he may become an asset to his family [compared to the Child and Youth Welfare Code, the word ‘himself’ is deleted and replaced with ‘to his family’] and to society.
98
Another important aspect of educational laws is their reliance on developmentalism. This is evident in the way the law sets out the goals of education based on the twin assumptions of universalized notions of childhood and predetermined developmental stages. This facilitates the creation of a conventional environment for children in schools based on an “authentic childhood experience” of the child created by law. The actual experiences of each child, “all of which are real within their own regime of truth”,87 are either stigmatized or simply left out. This diminishes the actual engagements of children within the educational system and disregards the plurality of voices of children. Thus, as “schools shall have a single aim of providing the best possible basic education for all learners,”88 the law prescribes the standard environment within which the child is to be educated.
Homogeneity is sanctioned when the law endorses the potentialities of every child and the corresponding right to an education “commensurate with his abilities.”89 The idea of “commensurate with abilities” is based on developmentally laid out standards for children of every age. In this approach to education, children receive skills, knowledge and values that they “need to become caring, self-reliant, productive and patriotic citizens.”90 This is what James and James call “a societal prescription of what children need in order to secure their future as adult citizens.”91
Specifically, universalized notions of childhood are recognized in the following articulation:
The child shall enjoy special protection and shall be given opportunities and facilities, by law and by other means, to ensure and enable his fullest development physically, mentally, emotionally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity appropriate to the corresponding developmental stage (emphasis added).92
The law clearly prescribes a universal standard of “normal” within which children should develop. It fails to acknowledge that the experience of growing up is diverse and shaped by particularities in the life of each child. Even stronger evidence of the law’s desire to universalize
87 Prout and James, supra note 5 at 25. 88 Governance of Basic Education Act of 2001, supra note 28, s. 2. 89 Child and Youth Welfare Code, supra note 33, arts. 3(6) & 4(4). 90 Governance of Basic Education Act of 2001, supra note 28, s. 2. 91 James and James, supra note 25 at 122. 92 Child and Youth Welfare Code, supra note 33, art. 10.
99 the experience of childhood is the law’s categorization of the rights of “different” children. The Child and Youth Welfare Code provides:
(3) Every child has the right to a well-rounded development of his personality to the end that he may become a happy, useful and active member of society.
The gifted child shall be given opportunity and encouragement to develop his special talents.
The emotionally disturbed or socially maladjusted child shall be treated with sympathy and understanding, and shall be entitled to treatment and competent care.
The physically or mentally handicapped child shall be given the treatment, education and care required by his particular condition (emphasis added).93
The way this provision is crafted exposes a method of marginalizing children who are deemed not to be “normal”. The law begins with the standard of the child who has developed in a well- rounded way and who will eventually become a happy, useful and active member of society. It then moves to the “gifted” child who surpasses the standard. Then finally, there are those children who fall below the standard, i.e. the emotionally disturbed, the socially maladjusted and the physically or the mentally handicapped, who shall be “treated” with sympathy, understanding and care. Therefore, the goal for every “normal” child is a “well-rounded development” to be happy, useful and active. This categorization applies universally to all children based on developmentally appropriate stages. Not only does this legal framework concretize assumptions of what children should be able to do but it also articulates moral, social, legal and political choices made by adults with respect to what they think children need.94 Consequently, this legal framework limits the space within which children may assert themselves in accordance with their own real and lived experiences and more importantly, it becomes a tool for marginalization.
B. THE EMERGING PARADIGM IN THE PHILIPPINE EDUCATIONAL SYSTEM:
AN ACKNOWLEDGMENT OF THE ROLE AND RIGHTS OF STUDENTS IN EDUCATION
93 Ibid, art. 3. 94 See e.g. Martin Woodhead, “Psychology and the Cultural Construction of Children’s Needs” in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood, 2d ed (London: The Falmer Press, 1997).
100
Notwithstanding the dominant legal framework of the Philippine educational system expressed in the solemn duty of educational institutions to “endeavor to prepare the child for the responsibilities of adulthood,”95 there is also an articulation within the law of ideas that reflect the emerging paradigm and that acknowledge the role of children within the process of education and recognizes their rights within that system.
At the outset, the very recognition by the Constitution of the “vital role of the youth in nation- building”96 opens up an opportunity to establish a conception of children as actual participants in society. Though very broad in its formulation, this acknowledgment nevertheless encourages the youth to be involved “in public and civic affairs.”97
The alternative framework for education was first articulated in the Education Act of 1982 and is specifically expressed in the language of “spirit of shared purposes and cooperation.” In its Declaration of Policy and Objectives, the law provides:
It is likewise declared government policy to foster, at all times, a spirit of shared purposes and cooperation among the members and elements of the educational community, and between the community and other sectors of society, in the realization that only in such an atmosphere can the true goals and objectives of education be fulfilled (emphasis added).98
The language of “spirit of shared purposes and cooperation” broadens the understanding of education as a system that is not solely restricted to the duty of educational institutions to develop children. Such an articulation clearly diffuses the function of education. Because this framework reformulates the purpose of education as a shared undertaking, there is the possibility of challenging the overarching authority of educational institutions. The framework re-imagines education as a process originating from the bottom-up rather than being hierarchical and authoritative. It emphasizes the deep attachment of the members of the community to their system of education that only in an atmosphere of engagement can the true goals and objectives of education be fulfilled. Within this framework, education, thus, becomes a common objective in which the members of the community partake in instead of being an externally imposed goal that they reflexively receive. Significantly, this “spirit of shared purposes and cooperation”
95 Child and Youth Welfare Code, supra note 33, art. 1, par. 6. 96 Constitution, supra note 59, art. II, s. 13. 97 Ibid. 98 Education Act of 1982, supra note 76, s. 5.
101 opens up the opportunity for engagement not only for parents, teachers and schools but also for “students and pupils” who are recognized in the law as “members and elements of the educational community.” The law declares:
‘Educational community’ refers to those persons or groups of persons as such or associated in institutions involved in organized teaching and learning systems. The members and elements of the educational community are:
x x x
2. ‘Students,’ or those enrolled in and who regularly attend an educational institution of secondary or higher level or a person engaged in formal study. ‘Pupils,’ are those who regularly attend a school of elementary level under the supervision and tutelage of a teacher.99
The significance of students in the realization of the goals of education is further bolstered when the law specifically enjoins the state to “promote and safeguard the welfare and interests of the students by defining their rights and obligations, according them privileges, and encouraging the establishment of sound relationships between them and the other members of the school community.”100 This statement appears to provide a recognition of the participation of students within the educational system. It gives due consideration to students who – through their rights and obligations, privileges and relationships – clearly share in the responsibility of realizing the “true goals and objectives of education.”101 Thus, such an understanding repositions students within the school system where they can be seen as critical and active participants i.e. they are intimately connected to the educational community where their engagements share in the shaping and promotion of their system of education.
The Education Act of 1982 then goes on to provide for the rights and responsibilities of students within schools as follows:
Rights of Students in School. — In addition to other rights, and subject to the limitations prescribed by law and regulations, [students] and pupils in all schools shall enjoy the following rights:
99 Ibid, s. 6. 100 Ibid, s. 5(2). 101 Ibid, s. 5.
102
1. The right to receive, primarily through competent instruction, relevant quality education in line with national goals and conducive to their full development as persons with human dignity. 2. The right to freely choose their field of study subject to existing curricula and to continue their course therein up to graduation, except in cases of academic deficiency, or violation of disciplinary regulations. 3. The right to school guidance and counseling services for making decisions and selecting the alternatives in fields of work suited to his potentialities. 4. The right of access to his own school records, the confidentiality of which the school shall maintain and preserve. 5. The right to the issuance of official certificates, diplomas, transcript of records, grades, transfer credentials and other similar documents within thirty days from request. 6. The right to publish a student newspaper and similar publications, as well as the right to invite resource persons during assemblies, symposia and other activities of similar nature. 7. The right to free expression of opinions and suggestions, and to effective channels of communication with appropriate academic channels and administrative bodies of the school or institution. 8. The right to form, establish, join and participate in organizations and societies recognized by the school to foster their intellectual, cultural, spiritual and physical growth and development, or to form, establish, join and maintain organizations and societies for purposes not contrary to law. 9. The right to be free from involuntary contributions, except those approved by their own he organizations or societies.102
Duties and Responsibilities of Students. — In addition to those provided for under existing laws, every student shall:
1. Exert his utmost to develop his potentialities for service, particularly by undergoing an education suited to his abilities, in order that he may become an asset to his family and to society. 2. Uphold the academic integrity of the school, endeavor to achieve academic excellence and abide by the rules and regulations governing his academic responsibilities and moral integrity. 3. Promote and maintain the peace and tranquility of the school by observing the rules of discipline, and by exerting efforts to attain harmonious relationships with fellow students, the teaching and academic staff and other school personnel. 4. Participate actively in civic affairs and in the promotion of the general welfare, particularly in the social, economic and cultural development of his community and in the attainment of a just, compassionate and orderly society. 5. Exercise his rights responsibly in the knowledge that he is answerable for any infringement or violation of the public welfare and of the rights of others.103
The fact that the law recognizes children as having both rights and responsibilities within the
102 Ibid, s. 9. 103 Ibid, s. 15.
103 school system – aside from their being considered a “member and element” of the educational community – suggests that children, indeed, are not mere passive recipients of education. One could imagine this as being a platform for the participation of children that is not only most meaningful to them but also respectful of the context within which they live their lives.
The later Governance of Basic Education Act of 2001 did not render inoperative the provisions of the Education Act of 1982. In fact, the participatory framework of “shared purposes and cooperation” of the prior law was been carried over to the current law, albeit reconceptualized. It is now expressed in the language of shared governance and a contextualized system of education. With this reconceptualization, the law now squarely addresses the bureaucratic and hierarchical system of education governance. It provides:
Principles of Shared Governance. — (a) Shared governance is a principle which recognizes that every unit in the education bureaucracy has a particular role, task and responsibility inherent in the office and for which it is principally accountable for outcomes;
(b) The process of democratic consultation shall be observed in the decision- making process at appropriate levels. Feedback mechanisms shall be established to ensure coordination and open communication of the central office with the regional, division and school levels;
(c) The principles of accountability and transparency shall be operationalized in the performance of functions and responsibilities at all levels; and
(d) The communication channels of field offices shall be strengthened to facilitate flow of information and expand linkages with other government agencies, local government units and nongovernmental organizations for effective governance104
What this law stresses is a framework of contextualized governance within the education bureaucracy. This involves the devolution of education governance to the localized levels.105 The fundamental objective of such a framework is to translate and adapt educational policies
104 Governance of Basic Education Act of 2001, supra note 28, s. 5. 105 See e.g. Bella Mariñas and Maria Pelagia Ditapat, “Philippines: Curriculum Development” online: United Nations Educational, Scientific and Cultural Organization (UNESCO) - International Bureau of Education (IBE)
104 into localized needs. Thus, the establishment and maintenance of education is brought closer to the communities where programs, projects and services not only respond to local needs but also reflect local values. In its Declaration of Policy, the law states:
Governance of basic education shall begin at the national level. It is at the regions, divisions, schools and learning centers — herein referred to as the field offices — where the policy and principle for the governance of basic education shall be translated into programs, projects and services developed, adapted and offered to fit local needs.
The State shall encourage local initiatives for improving the quality of basic education. The State shall ensure that the values, needs and aspirations of a school community are reflected in the program of education for the children, out-of- school youth and adult learners. Schools and learning centers shall be empowered to make decisions on what is best for the learners they serve.106
This commitment to contextualized and localized governance within the education bureaucracy reinforces an alternative framework in which education is a process that stems from the bottom- up rather than one that is hierarchical and authoritative. The fundamental understanding within this more particularistic and contextually-sensitive setting of educational policies is the diversity in the lives and values of different communities. Within these communities are children who contribute to this diversity and equally share in the formation of the local values, needs and aspirations.
However, despite this articulation of an emerging paradigm in the law that seems to express the idea of recognizing children as participants within the process of education and as having rights within that system, this framework has had limited effect on the system of education in general and the educational experience of students in particular. Because of the pervasive influence of the dominant paradigm which places an overarching emphasis on the duty of education to develop and produce productive and responsible citizens and adults, there is still a characteristic exclusion of children in the establishment and maintenance of a system of education that is, in the words of the Constitution, “relevant to the needs of the people and society.”107 In this regard, the argument of Woodhead is apropos:
106 Governance of Basic Education Act of 2001, supra note 28, s. 2. 107 Constitution, supra note 59, art. XIV, s. 2(1).
105
Children’s needs have been constructed as part of a standardized model in which childhood is a period of dependency defined by protectionist adult-child relationships in which adults are dominant providers and children are passive consumers.108
The struggle between these two educational frameworks and the extent of their effects are clearly demonstrated by the response of the state, through the judicial and executive branches, to engagements of children within education. In the succeeding section, it will be shown how specific instances of state action demonstrate this dichotomy of frameworks where despite an expressed recognition of the participation of children, state rationalizations – which still rely heavily on the overarching socialization function of education to the exclusion of children – negate such claims, or otherwise limit their effects.
IV. STATE RESPONSE TO THE ENGAGEMENTS OF CHILDREN IN EDUCATION:
TWO STEPS FORWARD, ONE STEP BACK
This section now looks at the complex interplay of these two educational frameworks as the Philippine legal system has grappled with concrete issues of student engagements. On the one hand, there has been a long-standing tradition of emphasizing the socialization function of educational institutions necessary to produce mature and responsible adults and citizens. On the other hand, however, there are also clear intimations of a commitment to acknowledging the active role of children in education and recognizing their rights within that system. These latter efforts have the potential to broaden the understanding of education and to shift the educational system in the direction of the alternative framework. However, as will be shown, these moves are undermined and limited by the still influential dominant legal framework that reflexively reverts to the overarching socialization function of education to the exclusion of children.
Specifically, the section examines two contexts where the state has dealt with the claims and assertions of students relating to their education. The first context involves the judiciary, and a series of Supreme Court decisions in which the court had been asked to recognize and protect students’ exercise of their rights in schools. The second context involves the executive branch, acting through the Department of Education, and two recent attempts to initiate and implement major reforms in curriculum and educational policy. These state actions demonstrate how even
108 Woodhead, supra note 94 at 78.
106 in instances where there seems to be an expressed recognition of the participation of children e.g. cases where the fundamental rights and freedoms of students in schools are upheld; learner- based curriculum; inclusive educational content and performance standards, underlying state rationalizations still proceed from the overarching socialization function of education to the exclusion of children. The effect of these justifications is that they minimize, if not totally disregard, the very real contributions of children to the establishment, maintenance and attainment of a system of education relevant to the needs of the people. Thus, children continue to be seen predominantly as the passive targets of a “proper” education that seeks to cure them of their inadequacies and prepare them to take their place as a productive member of society. Such exclusion of children simply undermines the claim of recognizing their participation within the educational system that the state proclaims to carry out.
A. JUDICIAL RESPONSE TO CLAIMS FOR THE EXERCISE OF STUDENTS’ RIGHTS:
A NARRATIVE OF EXCLUSION AND RECOGNITION
This first sub-section looks at a series of judicial cases decided by the Philippine Supreme Court where students have had their rights denied by the school and have brought their claim before the court, seeking recognition and protection of their rights within the school system. The sub- section traces how the legal system has moved from rationalizations in its early jurisprudence that flatly rejected students’ assertion of rights based on the construction of children as non- adults who need schools to be socialized and developed into citizenship to a series of important decisions that acknowledged the status of students as citizens by upholding their fundamental rights and freedoms within the school system.
The later cases upholding the constitutional rights of students within schools have indeed been clear victories for students. By sustaining the fundamental rights and freedoms of students, the court has moved in the direction of providing some recognition for the rights of children as citizens while in school. However, without detracting from the significance of these victories for students, it should also be clear that the impact of these decisions has been limited precisely because they only dealt with constitutional rights that focused on the inviolability of the Bill of Rights in the Constitution. Although they have created an opening for a broader repositioning of
107 students within the educational system with respect to these rights, their fundamental value is really in the victory of constitutional rights and freedoms.
Equally significant, underneath these cases was still the overriding influence of a framework based upon the overarching socialization function of education. In fact, these constitutionally protected rights were located within the established power of educational institutions, albeit a limitation to their authority. Because the court was still operating under the framework of the socializing function of education in the resolution of those cases, schools retained their authority subject only to the limitation of students’ constitutional rights. Thus, although the court upheld the rights of students in those cases, it reverted to the language of the dominant paradigm expressed in the solemn duty of education to develop, teach and prepare the child for the responsibilities of citizenship and adulthood. In the end, these court challenges, exceptional as they were with their potentially powerful principles, have not effected systemic changes within education, especially in the daily experiences of students within schools.
1. REJECTING STUDENTS’ RIGHTS WITHIN EDUCATION:
AN ATTITUDE OF EXCLUSION
The clearest and most controversial use by the Supreme Court of the language of the dominant paradigm to deny the voice of children in education was in the case of Gerona, et al v. Secretary of Education, et al109 brought in 1959 which involved the assertion by students of their right to the exercise of freedom of religion within schools.
This case arose when the Secretary of Education ordered the expulsion of a number of students in a certain school who refused to salute the flag, sing the national anthem and recite the patriotic pledge contrary to a Department of Education Order requiring all students to do so. The students’ refusal to comply with the required acts was in accordance with their religious beliefs as Jehovah’s Witnesses that they should not bow down, revere or serve any image including the flag. As a result, they were all expelled from school and other children similarly situated were
109 G.R. No. L-13954, August 12, 1959.
108 under threat of also being expelled from all public schools in the Philippines. The students110 questioned this Order arguing that it violated their religious freedom.
The court ruled against the students111 declaring that, in effect, the practice of these students was based on a mistaken belief because “[t]he Filipino flag is not an image that requires religious veneration…[and] that the flag salute is not a religious ceremony but an act and profession of love and allegiance and pledge of loyalty to the fatherland which the flag stands for….112 Not only did the court supplant the beliefs of the students, it essentially dictated to them what they were to believe or not believe. Implicit in the reasoning of the court was the assumption that children were incapable of understanding what the assertion of this right meant. The court relied heavily on a construction of children as non-beings and non-citizens who needed to be taught the responsibilities of adulthood. On such an understanding of children, educational institutions had a clear duty to develop children and teach civic consciousness and the duties of citizenship. The court even went on to compare students in schools to “school children of kingdoms and empires” who were “taught early to respect and love the king or the emperor for these rulers and sovereigns symbolize the nation, and the children as future citizens or subjects will come to love their country.”113 This reinforced the less preferred status of children in society and in the process, strengthened the special nature of the school environment characterized by control and instruction.
The court then turned to the ill effects of granting the students an exemption from this “non- discriminatory school regulation”114 and allowing this small portion of the school population to “impose its will.” In justifying its ruling, the court stated that not only was it protecting the school’s duty of “educating” these particular students, it was also looking after the welfare of
110 Throughout the official document of this case, there was no indication of the ages of the children involved. The court simply referred to the students as “children attending the Buenavista Community School, Uson, Masbate, [who] refused to salute the flag, sing the national anthem and recite the patriotic pledge contrary to the requirement of Department Order No. 8; [who] as a result…were expelled from school sometime in September, 1955.” It would also appear that this case was brought by the parents of the children as the court referred to the students as the “petitioners’ children” indicating that the children were not the petitioners themselves. 111 Although it appears that the students were not the petitioners, the court, nevertheless, was specifically addressing the children as the real party in interest. Clearly, the Departmental Order in question involved the flag-raising ceremony in schools where “pupils…or students…who are in school and its premises shall assemble in formation facing the flag.” Thus, in its discussion of the case, the court was looking at the children’s “failure or refusal to obey school regulations about the flag salute.” 112 Gerona, et al v. Secretary of Education, et al, supra note 109. 113 Ibid. 114 Ibid.
109 the “other pupils.” The court expressed alarm that should an exemption be granted to some students, it would cause disobedience from other students:
The trouble with exempting petitioners from participation in the flag ceremony aside from the fact that they have no valid right to such exemption is that the latter would disrupt school discipline and demoralize the rest of the school population which by far constitutes the great majority. If the children of Jehovah Witnesses are exempted, then the other pupils, especially the young ones seeing no reason for such exemption, would naturally ask for the same privilege because they might want to do something else such as play or study, instead of standing at attention saluting the flag and singing the national anthem and reciting the patriotic pledge, all of which consume considerable time….115
The blanket reference of the court to these “young ones” invokes a dominant representation of children. The fact that the court spoke on behalf of these “young ones” confirmed its homogenizing view of all children. The court posited itself as an authority, certain about what these other children would think, say and do. Even more troubling was the court’s assumption that children did not understand the whole business of saluting the flag, singing the national anthem and reciting the patriotic pledge. The court made it appear that these were activities that students had no understanding of and that children would rather be doing something else – likely playing. This view of children simply reinforced the duty of schools to teach and inculcate citizenship to these immature and irresponsible future citizens.
Equally problematic was the notion of the uncontrollable child from whom disobedience necessarily ensued. Not only was this a statement of the child’s perceived incompetence but also, more importantly, of the child’s irrationality. The court could not seem to fathom the idea that children could understand differences among children in a way that would not lead to chaos. The reasoning used in this case sanctioned the prevalent view that children by themselves were helpless, immature and irresponsible. Children were also seen as “dangerous”116 justifying the socializing role of educational institutions.
In the end, the court chose to reject the claim of rights by relying on the construction of children
115 Ibid. 116 See e.g. Alan Prout, “Participation, Policy and the Changing Conditions of Childhood” in Christine Hallett & Alan Prout, eds, Hearing the Voices of Children: Social Policy for a New Century (London: RoutledgeFalmer, 2003). Prout uses two different but equally problematic images to articulate ambiguities about childhood: “children in danger” and “children as dangerous”.
110 as non-beings. The children were mistaken in their beliefs and were better served by the socializing function of educational institutions that prepared them for citizenship. Indicative of a dismissive attitude towards these students, the court said: “they [students] could take it or leave it….Having elected not to comply with the regulations about the flag salute, they forfeited their right to attend public schools.117
The emphasis on the socializing function of educational institutions to the exclusion of children articulated in this 1959 Gerona case became firmly planted in Philippine jurisprudence and incorporated within the concept of academic freedom. In the 1975 case of Garcia v. The Faculty Admission Committee, Loyola School of Theology,118 the court had the occasion to articulate the import of academic freedom of learning institutions, in this case, an institution of higher learning.119 Quoting the U.S. Supreme Court, the court ruled that academic freedom involves the freedom of a university “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”120 As in the Gerona case, the court focused on affirming the duty of schools to develop its students into mature, responsible, effective and worthy citizens, barely referencing the role of students in this system of education.
The academic freedom of educational institutions was later reiterated and further expanded to apply “to any school” in the 1982 case Angeles v. Sison121 which raised the issue of the extent of the reach of schools with regard to acts of its students. In setting out the elements of an educational environment conducive to learning, this case laid down the necessity of discipline that extends to acts of students beyond the school premises. The case involved two students122 who were accused of mauling a professor outside the school premises and after school hours. An administrative complaint was filed in the school, which was opposed by the students. The school argued that the complaint it filed and the ensuing investigation were simply “in furtherance of the university’s legally recognized right to discipline its students.” On the other hand, the
117 Gerona, et al v. Secretary of Education, et al, supra note 109. 118 G.R. No. L-40779, November 28, 1975. 119 This particular case involved a graduate student, indicating an older student, seeking court relief that she be (re-) admitted to graduate school. 120 Concurring Opinion of Justice Felix Frankfurter, Sweezy v. New Hampshire, 364 U.S. 234, 263 (1957). 121 G.R. No. L-45551, February 16, 1982. 122 This case involved two students in mechanical engineering at a university in Manila. There was no express mention of their ages except for the reference that one was “then a minor…represented by his father.”
111 students maintained that since the acts complained of were beyond the confines of the school, any investigation conducted by the school with regard to this incident was, in their words, “violative of [their] right[s] to privacy and peace of mind.”
In ruling against the students, the court relied on the all-encompassing socializing function of educational institutions over its students. By focusing solely on the function of schools to develop children into “mature, responsible, effective and worthy citizens,” the court reinforced the view of children as passive recipients of education. Children were seen as helpless, immature and irresponsible by themselves. In the case of students who were seen as “dangerous”, educational institutions had the responsibility to discipline them. Thus, the court declared:
A college, or any school for that matter, has a dual responsibility to its students. One is to provide opportunities for learning and the other is to help them grow and develop into mature, responsible, effective and worthy citizens of the community. Discipline is one of the means to carry out the second responsibility. Thus, there can be no doubt that the establishment of an educational institution requires rules and regulations necessary for the maintenance of an orderly educational program and the creation of an educational environment conducive to learning. Such rules and regulations are equally necessary for the protection of the students, faculty, and property. The power of school officials to investigate, an adjunct of its power to suspend or expel, is a necessary corollary to the enforcement of such rules and regulations and the maintenance of a safe and orderly educational environment conducive to learning.123
This principle of academic freedom, specifically the right of educational institutions to “determine on academic grounds who shall be admitted to study, who may teach, and what shall be the subjects of the study and research”124 was later expressly incorporated into the Education Act of 1982. Integral to this is the right of teachers and school administrators to be “deemed
123 Angeles v. Sison, supra note 121. 124 Education Act of 1982, supra note 76, s. 13(2). See also Republic Act No. 7722 (1994) An Act Creating the Commission on Higher Education, Appropriating Funds Therefor and for other Purposes [Higher Education Act of 1994], s. 2: The State shall likewise ensure and protect academic freedom and shall promote its exercise and observance for the continuing intellectual growth, the advancement of learning and research, the development of responsible and effective leadership, the education of high-level and middle-level professionals and the enrichment of our historical and cultural heritage. State-supported institutions of higher learning shall gear their programs to national, regional or local development plans. Finally, all institutions of higher learning shall exemplify through their physical and natural surroundings the dignity and beauty of as well as their pride in, the intellectual and scholarly life.
112 persons in authority when in the discharge of lawful duties and responsibilities, and…therefore, [to] be accorded due respect and protection.”125
2. UPHOLDING STUDENTS’ FUNDAMENTAL RIGHTS AND FREEDOMS:
INDICATIONS OF RECOGNITION
Even though the academic freedom of educational institutions is clearly recognized within the legal framework with the passing of the Education Act of 1982, the same law also expressly acknowledges the role of children within the process of education and recognizes their rights within that system. Most significant, the law particularly enjoins the state to “promote and safeguard the welfare and interests of the students by defining their rights and obligations, according them privileges, and encouraging the establishment of sound relationships between them and the other members of the school community.”126 This movement towards an emerging framework of education is reflected in the succeeding cases where the court has been more receptive to the view that questions of students’ exercise of rights within schools implicate more than the socializing function of educational institutions. Thus, in these cases, the court has clearly engaged in balancing the education function of schools against the fundamental rights and freedoms of students.
The case in which the court began to more thoroughly consider the rights of students within the educational system is Malabanan, et al v. Ramento, et al127 decided in 1984. In this case, the court was tasked to resolve whether certain disciplinary actions and penalties imposed on students violated their rights of peaceable assembly and free speech. The facts were fairly simple. The students128 applied for and were granted a permit to hold an assembly. However, on the day of the assembly, the students marched towards areas not covered by the permit and beyond the time allotted. In the process, the students made utterances that were severely critical of school authorities. Classes were disrupted and some school personnel had to stop their work.
125 Education Act of 1982, supra note 76, ss. 11(3) and 12. 126 Ibid, s. 5(2). 127 G.R. No. 62270, May 21, 1984. 128 There was no express mention of the ages of the students involved in this case. The decision simply referred to them as “students of the Gregorio Araneta University Foundation…who were officers of the Supreme Student Council.” Being identified as university students is an indication that they were more likely older children. Also, the case title indicates that this action was brought by the students themselves without the assistance of their parents.
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The students involved were suspended for a year. Before the court, the students invoked their rights to peaceable assembly and free speech, while the school cited its power to discipline its students.
The court ruled in favor of the students, upholding their rights to peaceable assembly and free speech. Expounding on the students’ rights, the court said:
The rights to peaceable assembly and free speech are guaranteed to students of educational institutions. Necessarily, their exercise to discuss matters affecting their welfare or involving public interest is not to be subjected to previous restraint or subsequent punishment unless there be a showing of a clear and present danger to a substantive evil that the state has a right to present. As a corollary, the utmost leeway and scope is accorded the content of the placards displayed or utterances made.129
While the court recognized the authority of educational institutions over its students, their powers could not go so far as to violate constitutional rights guaranteed to these students. The court did, however, make clear that schools could take disciplinary action for conduct which materially disrupted class work or involved substantial disorder or invasion of the rights of others. In this case, the students could not be totally absolved for the events that transpired. Because there was a violation of the terms of the permit, the school could take disciplinary action. But any penalty had to be proportionate to the offense and here, the one-year period of suspension was deemed much too severe.
The pronouncement in the Malabanan case was reiterated a year later in Villar, et al v. Technological Institute of the Philippines, et al130 where the court specifically upheld students’131 rights to peaceable assembly and free speech within the context of the academic freedom enjoyed by learning institutions. The court ruled in this case:
The academic freedom enjoyed by ‘institutions of higher learning’ includes the right to set academic standards to determine under what circumstances failing grades suffice for the expulsion of students. Once it has done so, however, that standard should be followed meticulously. It cannot be utilized to discriminate
129 Malabanan v. Ramento, supra note 127. 130 G.R. No. 69198, April 17, 1985. 131 Once again, there was no mention of the ages of the students. As in the previous case of Malabanan, as university students, they were more likely older children. As well, the case title indicates that this was brought by the students themselves.
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against those students who exercise their constitutional rights to peaceable assembly and free speech. If it does so, then there is a legitimate grievance by the students thus prejudiced, their right to the equal protection clause being disregarded.132
The case of Guzman, et al v. National University133 decided in 1986 also upheld the constitutional rights of students within educational institutions. Not only did the court sustain the rights of peaceable assembly and free speech, it also guaranteed students’ right to due process in school disciplinary proceedings. The students134 in this case were refused readmission because of their alleged participation in mass actions within the premises of the school. The students argued that, in addition to having their constitutional right to peaceful assembly and free speech violated, they were, in effect, being subjected to the extreme penalty of expulsion without cause or if there was cause, without being informed of such cause and without being afforded the opportunity to defend themselves. The school, on the other hand, argued that the students had failed to enroll before the deadline, that they had academic deficiencies, and that the school had the right to discipline its students.
The court found that the school had never conducted proceedings of any sort to determine whether the students had indeed led or participated in mass actions within the school premises, which according to the school disrupted classes and were accompanied by acts of vandalism, coercion, intimidation and slander. The school also failed to show to the court any duly published rule by which students could be expelled or refused re-enrollment for poor scholastic standing. Given these findings, the court ruled that the students were denied their right to continue their studies and were disciplined without due process. However, the court still made clear that it did not withhold power from educational institutions to impose student discipline. The imposition of such disciplinary sanctions required observance of procedural due process. The court laid down the rule:
[D]ue process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings in student discipline cases may be summary; and cross- examination is not…an essential part thereof. There are withal minimum standards which must be met to satisfy the demands of procedural due process; and these are,
132 Villar, et al v. Technological Institute of the Philippines, et al, supra note 130. 133 G.R. No. L-68288, July 11, 1986. 134 With no mention of age, the three petitioners in this case were simply characterized as “students of respondent National University.” Also, the case title indicates that the action was filed by the three students themselves.
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that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them, with the assistance of counsel, if desired; (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.135
What this string of cases – from Malabanan to Guzman – clearly establishes is that students are guaranteed their constitutional rights within schools. This is a clear victory for students and an important acknowledgement of their status as citizens. In fact, there was even a statement by the court that students “enjoy like the rest of the citizens the freedom to express their views and communicate their thoughts to those disposed to listen in gatherings….”136
The victories gained by students in the upholding of their fundamental rights and freedoms while in school and the movement towards some acknowledgment of their role within the educational system took a significant step back in 1988 with the case of Alcuaz, et al v. Philippine School of Business Administration, et al137 where the court seemed to revert to its original stance of sanctioning the all-embracing authority of schools over students. In this case, the court considered the issue of rights of students as a question of contractual obligations thus moving away from constitutional standards. The case involved students138 who were prohibited from re-enrolling on account of their participation in demonstrations or protests characterized by the school as “anarchic” rallies. The students argued that they were not given due notice and a fair and proper hearing before being barred from re-enrolment, which amounted to their expulsion. Furthermore, the students argued that the acts of the school constituted a violation of their constitutional rights of expression and assembly. In ruling against the students, the court decreed:
It is beyond dispute that a student once admitted by the school is considered enrolled for one semester….It is thus evident that after the close of the first semester, the [school] no longer has any existing contract…with the students….Such being the case, the charge of denial of due process is untenable. It
135 Guzman, et al v. National University, supra note 133. 136 Malabanan v. Ramento, supra note 127. 137 G.R. No. 76353, May 2, 1988. 138 Without any mention of their ages, the students were identified as “bonafide students of the Philippine School of Business Administration…an institution of higher learning education.” The case was filed by the students themselves without any indication of being assisted or represented by their parents.
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is a time-honored principle that contracts are respected as the law between the contracting parties. The contract having been terminated, there is no more contract to speak of. The school cannot be compelled to enter into another contract with said students and teachers. The courts, be they the original trial court or the appellate court, have no power to make contracts for the parties (citations omitted).139
In construing the issue of rights of students within schools as a question of contractual obligation, the court clearly went against precedents that resolved such cases as constitutional matters. In effect, by upholding the supposed contract between the students and the school, the court simply endorsed the latter’s all-embracing authority over the former.140 However, two years later, this was overturned and dismissed as “doctrinal error”141 through Non v. Dames.142 This case once again, involved students143 who were denied readmission or re-enrollment after leading and participating in student protests against the school. After setting aside as misplaced the ruling that the issue of the rights of students within schools was a contractual question, the court reiterated the settled principle of protecting students’ rights to free speech and peaceable assembly as guaranteed by the Constitution. Citing the leading case of Malabanan, the court ruled:
[Students] invoke their rights to peaceable assembly and free speech. They are entitled to do so. They enjoy like the rest of the citizens the freedom to express their news and communicate their thoughts to those disposed to listen in gatherings such as was held in this case. They do not, to borrow from the opinion of Justice
139 Alcuaz, et al v. Philippine School of Business Administration, et al, supra note 137. 140 This case was, however, met with rebuke in a strongly worded dissenting opinion, Dissenting Opinion of Justice Abraham F. Sarmiento, Alcuaz, et al v. Philippine School of Business Administration, et al, G.R. No. 76353, May 2, 1988 that argued that the case had to be treated as a serious constitutional question rather than a simple case of contractual relations and extinguishment of contract. Significantly, the dissent expressly recognized the role of students within the educational environment, especially in situations of disagreement with the administration: “There is no doubt that in the case at bar, a controversy had been raging on campus, a controversy serious enough to force a school-student dialogue. Obviously, it was not a case of a few hotheads on a rampage on the school grounds, but apparently, student leaders seeking redress for some legitimate grievance. I think that the respondent College was overreacting when, rather than confront the petitioners, it threatened them with disciplinary action. Academic freedom does not mean untrammelled liberty for schools and school authorities….Moreover, the privilege applies to students as well. Why recognize the schools’ right to it and deny that of students?” 141 Concurring Opinion of Justice Ameurfina Melencio-Herrera, Non v. Dames, G.R. No. 89317, May 20, 1990. 142 G.R. No. 89317, May 20, 1990. This decision was underscored by a concurring opinion from the same jurist who wrote the vigorous dissent in the prior case of Alcuaz. Expressing vindication, Justice Sarmiento stated: “I have always held that schools are not free to penalize, by administrative sanction or outright expulsion, students on account alone of the fact that they had taken part in mass actions or assemblies. Students, as all persons, enjoy freedom of speech and assembly, rights granted by the Constitution, and one nobody may abridge.” 143 Once again, there was no mention of the ages of the students in this case. They were simply identified as college students of private respondent school. The case title also indicates that this action was brought by the students themselves.
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Fortas in Tinker v. Des Moines Community School District,144 ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ While, therefore, the authority of educational institutions over the conduct of students must be recognized, it cannot go so far as to be violative of constitutional safeguards.145
Finally, an important illustration of the movement of the court towards an acknowledgment of the role of children in education and a recognition of their rights within that system is the 1995 decision in Ebralinag, et al. v. The Division of Superintendent of Schools of Cebu.146 As if coming full circle, this case revisited the same issue of students’ exercise of freedom of religion in the schools discussed at the beginning of this sub-section in the case of Gerona147 some thirty years earlier. As in Gerona, this case involved a group of students148 who were expelled from their respective schools because of their refusal, on account of their religious beliefs, to take part in the flag ceremony which included singing the Philippine national anthem, saluting the Philippine flag and reciting the patriotic pledge. In defending the expulsion orders, the Solicitor General had strong words against both the students and their religious practices which were described as “bizarre” and certain to “produce rebellious and anti-social school children and consequently disloyal and mutant Filipino citizens.”149
This time, however, the case was decided in favor of the students. In its ruling, the court relied on the inviolability of the Bill of Rights using the words of the U.S. Supreme Court that “children do not shed their constitutional rights…at the schoolhouse gate.”150 The court held:
The idea that one may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during a flag ceremony on pain of being dismissed from one’s job or of being expelled from school, is alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which
144 Because the constitutional guarantee of fundamental rights and freedoms in the Philippines, specifically the Bill of Rights, is patterned after the United States Constitution, decisions of the US Supreme Court with respect to these issues carry persuasive effect in the Philippines. 145 Non v. Dames, supra note 142. 146 G.R. No. 95770, March 1, 1993. 147 Gerona, et al v. Secretary of Education, et al, supra note 109. 148 Without specifically indicating their ages, the court identified the petitioners in this case as “high school and elementary school students.” They were characterized as “all minors…[and] assisted by their parents who belong to the religious group known as Jehovah’s Witnesses.” The case title also indicates that in bringing this action, the children were represented by their parents. 149 Ebralinag, et al v. The Division of Superintendent of Schools of Cebu, supra note 146. 150 Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506 (1969).
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guarantees their rights to free speech and the free exercise of religious profession and worship.151
Although this was a clear case of upholding a constitutional right of students within the school system, it is worth noting that the court was conspicuously cautious in its ruling.152 After deciding in favor of the students, the court situated its decision within the socializing role of schools. Thus, while the right of students to exercise their religion was to be respected, the power of the school to discipline remained “if [students] should commit breaches of the peace by actions that offend the sensibilities, both religious and patriotic, of other persons.”153 The court even issued this admonition:
It is appropriate to recall the Japanese occupation of our country in 1942-1944 when every Filipino, regardless of religious persuasion, in fear of the invader, saluted the Japanese flag and bowed every Japanese soldier. Perhaps, if petitioners had lived through that dark period of our history, they would not quibble now about saluting the Philippine flag.
x x x
[W]e hope, nevertheless, that another foreign invasion of our country will not be necessary in order for our countrymen to appreciate and cherish the Philippine flag.”154
This caveat seemed to imply that the students did not appreciate and cherish the Philippine flag, contradicting the court’s own ruling that the actions of the students were not specifically aimed against the Philippine flag per se but were a legitimate exercise of their religion. Clearly, the court wanted to underscore that although the fundamental right to exercise religion was sustained in this case, the educational and disciplinary functions of schools over children remained.
Similarly, the court’s denial of the Motion for Reconsideration155 filed in this case reiterated the same function of education but constrained by the fundamental right of students to the free exercise of their religion. The court declared:
151 Ebralinag, et al v. The Division of Superintendent of Schools of Cebu, supra note 146. 152 In fact, the court even declared: “Our task here is extremely difficult, for the 30-year old decision of this court in Gerona upholding the flag salute law and approving the expulsion of students who refuse to obey it, is not lightly to be trifled with.” 153 Ebralinag, et al v. The Division of Superintendent of Schools of Cebu, supra note 146. 154 Ibid. 155 G.R. No. 95770, December 29, 1995.
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No doubt, the State possesses what the Solicitor General describes as the responsibility ‘to inculcate in the minds of the youth the values of patriotism and nationalism and to encourage the involvement in public and civic affairs.’ The teaching of these value ranks at the very apex of education’s ‘high responsibility’ of shaping up the minds of the youth in those principles which would mold them into responsible and productive members of our society. However, the government’s interest in molding the young into patriotic and civic spirited citizens is ‘not totally free from a balancing process’ when it intrudes into other fundamental rights such as those specifically protected by the Free Exercise Clause (emphasis added)….156
3. MAKING SENSE OF THE JUDICIAL RESPONSE TO STUDENTS’ CLAIMS OF RIGHTS:
RESTRAINED VICTORY
These cases decided by the Supreme Court on claims for the recognition and protection of the rights of students within the school system demonstrate how the legal system has evolved from a philosophy of exclusion to a framework of recognition.
The early cases that categorically denied the rights of students within schools were decided with the straightforward justification that educational institutions had the solemn duty to teach, develop, produce and discipline students to become responsible and mature citizens and adults. As a necessary consequence of this educational function, children were seen as dependent, immature and irresponsible by themselves. In these cases, the court chose to reject the voices of students by relying on the construction of them as non-beings. Thus, these students were either mistaken in their beliefs or had limited (or none at all) understanding of these claims for rights. In the end, they were better served by the socializing function of educational institutions that prepared them for a life of adulthood and citizenship.
The succeeding cases upholding the constitutional rights of students within schools are undoubtedly victories for students. The cases clearly establish that students are guaranteed their fundamental rights and freedoms within schools. Such judicial decisions now acknowledge the role of students within the process of education and recognize their rights within that system. This is a clear victory for students and an important acknowledgement of their status as citizens. By sustaining the fundamental rights and freedoms of students, the court has moved away from
156 Ibid.
120 exclusion towards the direction of recognition. Thus, within the established power of educational institutions, there is a limit to their authority when confronted with constitutionally protected rights.
However, without detracting from the significance of these victories for students, it should also be clear that these decisions have had limited impact precisely because they exclusively deal with fundamental rights and freedoms that focus on the inviolability of the Bill of Rights in the Constitution. Although they have created an opening for a broader repositioning of students within the educational system with respect to these rights, their fundamental value is really in the triumph of constitutional rights and freedoms. It should also be noted that a majority of these cases involved older students in institutions of higher learning. Thus, given their exceptional nature, these court challenges have not promoted systemic changes within education, especially in the daily experiences of students – including younger children157 – within schools.
Equally significant, underneath these cases is still the overriding influence of a framework based upon the overarching socialization function of education. In fact, these constitutionally protected rights are located within the established power of educational institutions, albeit a limitation to their authority. Because the court still operates under the framework of the socializing function of education, schools retain their authority subject only to the limitation of students’ constitutional rights. Consistent in these cases is the pronouncement that although these fundamental rights and freedoms are sustained, the educational and disciplinary functions of educational institutions over students still remain. Thus, the court, in justifying its rulings and qualifying their scope, slides into the terrain of the dominant paradigm by reverting to the language of the solemn duty of educational institutions to teach citizenship and produce mature and responsible adults.
Given the limitations of these judicial determinations, a more far-reaching transformation of the daily educational experiences of children will require concrete educational policy reforms, but as will be shown in the next subsection, such reforms undertaken have had limited effect to date.
157 In fact, in resolving the Motion for Reconsideration of the Ebralinag case, supra note 155, the court seemed to restrict the impact of the victory of the students when it made a statement that its decision to uphold the right of students to the free exercise of their religion within schools was partly justified by “the unassailable interest of parents to guide the religious upbringing of their children in accordance with the dictates of their conscience and their sincere religious beliefs.”
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B. POLICY RESPONSE TO THE ENGAGEMENTS OF STUDENTS:
THE RHETORIC OF PARTICIPATION VS. THE REALITY OF EXCLUSION
This sub-section now looks at how the executive branch has responded to the engagements of children in the development and implementation of educational policies. Specifically, the sub- section examines two major policy programs undertaken by the Department of Education that have attempted to re-assess and reform the structure and curriculum of basic education in the Philippines. The first initiative was the Basic Education Curriculum of 2002 (BEC) and the second, the K+12 Basic Education Program (BEP) carried out in 2011. Set against a legal environment that has articulated both the dominant and emerging paradigms of education, these state actions demonstrate the push and pull of the two approaches in the system of education.
These programs initiated by the executive branch are very explicit in their recognition of the active role of students in the system of education. On the surface, these policies seem to be a concrete realization of the emerging paradigm that recasts and repositions students within the educational system. However, this sub-section shows that the expressed recognition of the participation of children within education in these reforms is contradicted by the very rationales that have brought about the programs in the first place. The justifications for these programs still proceed from the dominant understanding of education that is highly focused on the socializing function of education to the exclusion of children. Students are, in fact, seen as “failures” and dependents who need to be developed into responsible and productive adults and citizens through a “proper” education.
1. THE CURRICULAR REFORM OF 2002:
THE INVOLVEMENT OF THE CHILD-LEARNER OR A “CURE” FOR STUDENTS?
Under the legal framework of both the Education Act of 1982 and Governance of Basic Education Act of 2001, the Department of Education initiated a major curricular reform in primary and secondary education – the Basic Education Curriculum of 2002 (BEC).158
158 Department of Education, The 2002 Basic Education Curriculum in the Philippines (Manila: Department of Education, 2002).
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Following the goals and objectives of basic education laid down in the two laws,159 the Department maintained:
We have to educate our Filipino learners to filter information critically, seek credible sources of knowledge, and use data and facts creatively so that they can survive, overcome poverty, raise their personal and national self-esteem, and realize a gracious life in our risky new world.160
To this end, the BEC laid down its vision of Philippine education:
The ideal Filipino learner in our rapidly changing world is one who is empowered for lifelong learning, is an active maker of meaning, and can learn whatever s/he needs to know in any new context. Such an empowered learner is competent in learning how to learn and has life skills so that s/he becomes a self-developed person who is makabayan (patriotic), makatao (mindful of humanity), makakalikasan (respectful of nature), and maka-Diyos (godly).161
Clearly, the BEC intended to transform the system of education by building on the emerging paradigm where children take on an active role in their educational experience. Thus:
159 The Governance of Basic Education Act of 2001, supra note 28, s. 2 provides in part: It shall be the goal of basic education to provide them [children] with the skills, knowledge and values they need to become caring, self-reliant, productive and patriotic citizens. The Education Act of 1982, supra note 76, ss. 21-23 provide: Section 21. Objectives of Elementary Education. — The objectives of elementary education are: 1. To provide the knowledge and develop the skills, attitudes, and values essential to personal development and necessary for living in and contributing to a developing and changing social milieu; 2. To provide learning experiences which increase the child's awareness of and responsiveness to the changes in and just demands of society and to prepare him for constructive and effective involvement; 3. To promote and intensify the child's knowledge of, identification with, and love for the nation and the people to which he belongs; and 4. To promote work experiences which develop the child's orientation to the world of work and creativity and prepare himself to engage in honest and gainful work.
Section 22. Objectives of Secondary Education. — The objectives of secondary education are: 1. To continue to promote the objectives of elementary education; and 2. To discover and enhance the different aptitudes and interests of the students so as to equip him with skills for productive endeavor and/or prepare him for tertiary schooling.
Section 23. Objectives of Tertiary Education. — The objectives of tertiary education are: 1. To provide a general education program that will promote national identity, cultural consciousness, moral integrity and spiritual vigor; 2. To train the nation's manpower in the skills required for national development; 3. To develop the professions that will provide leadership for the nation; and 4. To advance knowledge through research work and apply new knowledge for improving the quality of human life and responding effectively to changing societal needs and conditions. 160 Department of Education, supra note 158. 161 Ibid.
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The design of the [BEC] is based on the principle that there are two main sources of reliable and meaningful knowledge for contemporary basic education: expert systems of knowledge and the learners’ experience in his/her context. The curriculum has been restructured so that these two main sources will interact with one another reciprocally, and in this sense, the restructured curriculum is an interactive one (emphasis added).
This curriculum promotes more mutual interaction between students and teachers, between students themselves (collaborative learning), between students and instructional materials, between students and multi-media sources, and between teachers of different disciplines (collaborative teaching).162
By recognizing the experiences of a child as a definitive source of knowledge for educational policy, the BEC, in very concrete terms, acknowledged children as social actors whose interactions produce consequences. Such a view highlighted children’s meaning-making capacity allowing for the opportunity to assert their participation. Also, because of the value accorded to the child-learner, education was no longer construed as a one-way, top-to-bottom process. Accordingly, the BEC refashioned the role of the teacher as a “trustworthy facilitator or manager of the learning process….She enables learners to become active constructors of knowledge and not passive recipients of information.”163 The BEC explained:
The ideal teacher helps students to learn not primarily answers but how to reflect on, characterize and discuss problems, and how, on their own initiative, they can form or find valid answers. It is learning how and not just what, in order that learners do the work themselves and thus have an experience of genuine democracy, where people have not only rights but also responsibilities.164
The BEC initiative promoted a curriculum that was less prescriptive and detailed and more flexible. Because of concerns with curriculum overcrowding and a “one-size-fits-all” approach165 of the then existing educational curriculum, the BEC was designed as a system that allowed for more innovative instructional strategies. This transformed the teaching-learning endeavor as an interactive process. The focus was to be on students’ growth in learning over time, emphasizing performance and application, rather than knowledge.166 This clearly
162 Ibid. 163 Ibid. 164 Ibid. 165 Ibid. 166 Ibid.
124 recognized the participation of children in their education and encouraged them to participate even more actively in their learning experiences.
The expressed design of the BEC was indeed a clear recognition of the participation of children in education indicative of the emerging paradigm. However, despite its recognition of the active role that children play in their education, the reform was actually constrained by the dominant understanding of education. In its official documents, the Department of Education admitted that this curricular reform was really pursued to help raise the achievement level of students.167 As a remedy to the characterization of children as “being in danger,” the BEC not only “[sought] to cure the inability of students who cannot read with comprehension at grade 3 and worse, at grade 6”168 but also to teach students to become developed persons (emphasis added).169 This showed that the underlying impetus for this curricular reform stemmed from the Department’s belief of what children need to become i.e., mature and rational beings who can “survive” in the “real” world. This, in effect, has negated the supposed active role of children in the process of transforming the educational system. The Institute on Church and Social Issues of the Ateneo de Manila University has stated that the curriculum overhaul was undertaken because:
In recent years, the proficiency level of Filipino students has gone down to alarming levels. The latest National Elementary Assessment Test (NEAT) and National Secondary Assessment Test (NSAT) results show the very poor standing of students in the core subjects. Although the Philippines has a high basic literacy rate, students, even those in high school, often have problems reading or understanding the things they read, much more, apply what they have learned.170
These policy considerations revealed that the Department of Education was heavily influenced by the dominant paradigm that imposes a “proper” education on children as a blanket prescription. Such an understanding, leading to a reliance on standardized attainment targets, has relegated children once again to the status of passive recipients of education.171 Consequently, this has undermined the expressed inclusive and participative objective of the program.
167 Ibid. 168 Department of Education Order No. 25, s. 2002, June 17, 2002. 169 Department of Education, supra note 158. 170 Institute on Church and Social Issues, Ateneo de Manila University, “Education Integration” online: Child Protection in the Philippines: Philippine Resource Network
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As well, although the BEC claimed to reformulate education as a system that operates from the bottom-up, the program itself was the result of a highly centralized curriculum reform process172 characteristic of the dominant paradigm. In fact, even though the Governance of Basic Education Act of 2001 introduced a framework of contextualized governance, the BEC was undertaken through the still highly centralized and hierarchical structure of the Department of Education173 where the powers of the national government under the Secretary of Education174 and the Bureaus of Elementary175 and Secondary176 Education to formulate, develop, and evaluate programs and educational standards including curricular designs177 have remained. This centralized and hierarchical system of education under which the BEC was formulated has raised concerns about the program; and has undermined its claims of including children and recognizing their participation within education.178 In fact, the school environment, even with the BEC, has continued to be characterized as both authoritative and hierarchical179 – clearly the
adulthood by “establishing a set of predictive indicators that will reveal the contribution children will make to society as future adults.” 172 Allan Bernardo and Rizalyn Mendoza, “Makabayan in the Philippine Basic Education Curriculum: Problems and Prospect for Reforming Student Learning in the Philippines” in Chi-Hung Ng and Peter Renshaw, eds, Reforming Learning: Concepts, Issues and Practice in the Asia-Pacific Region (Netherlands: Springer Netherlands, 2009). 173 See e.g. Ma. Cynthia Rose B. Bautista, Allan B.I. Bernardo, and Dina Ocampo, When Reforms Don’t Transform: Reflections on Institutional Reforms in the Department of Education (Quezon City, Philippines: Human Development Network, 2010) at 59-60 who argue that despite the presence of the current law with a framework of decentralized educational bureaucracy, the Department of Education remains resistant to change as apparent in its “unwillingness to adopt approaches, processes and procedures that worked effectively in reform projects.” 174 Governance of Basic Education Act of 2001, supra note 28, s. 7 provides: The Secretary has authority, accountability and responsibility for the following: (1) Formulating national educational policies: (2) Formulating a national basic education plan; (3) Promulgating national educational standards; (4) Monitoring and assessing national learning outcomes; (5) Undertaking national educational research and studies; (6) Enhancing the employment status, professional competence, welfare and working conditions of all personnel of the Department; and (7) Enhancing the total development of learners through local and national programs and/or projects. 175 Education Act of 1982, supra note 76, s. 62. 176 Ibid., s. 63. 177 Ibid., ss. 62(1) and (2); 63(1) and (2). 178 See e.g. Bernardo and Mendoza, supra note 172. They have identified a number of circumstances that undermine the implementation of the BEC including: 1) lack of involvement of teachers in the reform process, in part, because they have not been quick to acquire new teaching approaches and partly because their working environment does not fully support a change in pedagogical approaches e.g. extensive and highly prescriptive monitoring and surveillance, non-transparent incentive systems, and lack of material and organizational support from administrators; and 2) the other more detailed curriculum-related documents that actually determine how the curriculum is given life in classrooms were not addressed during the curriculum reform process and prior to its implementation. 179 Yacat and Ong, supra note 29.
126 opposite of inclusion and participation. This obviously negates the expressed objectives of the BEC. Thus, contrary to the vision of the BEC, Velayo finds that: “In the classroom, the students are expected to follow the teacher’s instructions….Children lack the position to ask questions or challenge adult authority; rather they recognize the need to succumb to authority.”180 These circumstances surrounding the BEC demonstrate that despite the program’s expressed endorsement of the emerging paradigm, it has still functioned under the dominant paradigm.
In the end, Bernardo and Mendoza provide an insightful assessment of the BEC:
…[I]t would not be fair to say that the BEC has failed. Although the BEC has not fully articulated and realized the themes of the curricular and learning reforms, it has, in a rather forceful way, called the attention of the educational sector to an alternative way of thinking about learning in schools, and to the role of curriculum in this process….Thus, although the BEC is not likely to directly result in improved student learning in primary and secondary schools in the country, it has provided a new vocabulary and philosophy for allowing Philippine schools to better address student learning in years to come.181
2. THE CURRENT REFORM TO BASIC EDUCATION:
AN INCLUSIVE SYSTEM OR AN IMPOSING SCHEME?
The educational curriculum under the BEC had undergone a number of revisions since its original implementation in 2002.182 The latest of these revisions is the current Enhanced K+12 Basic Education Program (BEP).183 At the beginning of the 2011-2012 school year, the Department of Education implemented a major restructuring of basic education in the Philippines through the BEP. Previously, basic education was composed of six (or optional seven) years of elementary education and four years of high school/secondary education for a total of 10 years education. With the BEP, students now go through universal kindergarten and a
180 Velayo, supra note 29 at 194. 181 Bernardo and Mendoza, supra note 172 at 195. 182 The reality is that each Secretary of Education brings a new set of policies to implement within the Department derailing any long term educational policy. 183 Prior to the BEP, there were other educational reforms undertaken by the Department of Education. At the beginning of the 2005-2006 school year, the Department of Education initiated the Schools First Initiative. This was a package of policy reforms that “that attempt[ed] to significantly enhance…efforts at improving the quality of education in [the] country.” As a reform package, it had three components: 1) enhancement of learning; 2) more resources for learning; and 3) focused organization for learning. Just a year later, the Department of Education then rolled out the Basic Education Sector Reform Agenda (2006-2010) with five key reform thrusts focused on: schools, teachers, social support to learning, complementary interventions, and the Department of Education’s institutional culture.
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12-year basic education program, thus K+12. This 12-year program is composed of six years of elementary education, four years of junior high school and two years of senior high school. Following this structural reform, a new curriculum has also been introduced beginning the 2012- 2013 school year. Each school year, particular grades will be phased into the revised structure and curriculum of the BEP with the end goal of having all the 12 grades fully implemented by the 2017-2018 school year.
The BEP is heralded as an extensive and bold reform to basic education in the Philippines.184 By pushing for this educational reform, the Department of Education “intends to raise the quality of basic education through the enhancement of the curriculum and the expansion of the basic education cycle.”185 In this manner, the State fulfills its responsibility of “establish[ing], maintain[ing], and support[ing] a complete, adequate, and integrated system of education relevant to the needs of the people and society.”186
Undoubtedly, the BEP draws upon the emerging paradigm of education. This is evident in an expansive curriculum that is more inclusive in terms of content and performance standards. Thus, the content standards of the curriculum define not only “what students are expected to know (knowledge: facts and information) and what they should be able to do (process or skills) with what they know,”187 but also “the meanings or understandings that they construct or make as they process the facts and information.”188 As well, the performance standards that define the proficiency level of students are expressed in two ways: “students should be able to use their learning or understanding in real-life situations; and they should be able to do this on their own.”189 These standards clearly recognize students as active participants in their education where their meaning-making capacity is acknowledged.
To institutionalize this recognition of the more participative role of students in their education, particularly in the educational curriculum, the Department of Education has, in fact, pushed for
184 Journal of the Republic of the Philippines Senate, Session No. 22, October 8, 2012. 185 Department of Education, “Discussion Paper on the Enhanced K+12 Basic Education Program” online: Department of Education
128 legislation articulating this framework. The proposed parallel law currently pending in Congress190 that would implement the BEP precisely recognizes the realities of the child and the diversities of the childhood experience as the bases for the setting of an enhanced curriculum. The proposed law191 provides:
The [Department of Education] shall adhere to the following standards and principles in developing the enhanced basic education curriculum:
(a) The curriculum shall be learner-centered, inclusive and developmentally appropriate;
x x x
(d) The curriculum shall be relevant, responsive and research-based. The basic curriculum shall be adapted locally to the languages, cultures and values of Filipino learners in order to aid teachers in planning lessons which build what the learners already knew;
x x x
(g) The curriculum shall be integrative, contextualized, broad-based and global; (h) The curriculum shall use pedagogical approaches that are constructivist, inquiry-based, reflective, collaborative and integrative;
x x x
190 During the writing of this thesis, the proposed legislation embodying the BEP was passed and signed into law by the President on May 15, 2013. Republic Act No. 10533 (2013) An Act Enhancing the Philippine Basic Education System by Strengthening its Curriculum and Increasing the Number of Years for Basic Education, Appropriating Funds Therefor and for Other Purposes [Enhanced Basic Education Act of 2013]. 191 The recently signed law contains substantially the same provision on an enhanced basic education curriculum. Ibid, s. 5 provides: The DepED shall adhere to the following standards and principles in developing the enhanced basic education curriculum: (a) The curriculum shall be learner-centered, inclusive and developmentally appropriate; (b) The curriculum shall be relevant, responsive and research-based; (c) The curriculum shall be culture-sensitive; (d) The curriculum shall be contextualized and global; (e) The curriculum shall use pedagogical approaches that are constructivist, inquiry-based, reflective, collaborative and integrative; (f) The curriculum shall adhere to the principles and framework of Mother Tongue-Based Multilingual Education (MTB-MLE) which starts from where the learners are and from what they already knew proceeding from the known to the unknown; instructional materials and capable teachers to implement the MTB-MLE curriculum shall be available; (g) The curriculum shall use the spiral progression approach to ensure mastery of knowledge and skills after each level; and (h) The curriculum shall be flexible enough to enable and allow schools to localize, indigenize and enhance the same based on their respective educational and social contexts. The production and development of locally produced teaching materials shall be encouraged and approval of these materials shall devolve to the regional and division education units.
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(m) The curriculum shall be flexible enough to enable and allow schools to localize, indigenize and enhance the same based on their respective educational and social contexts. The production and development of locally produced teaching materials shall be encouraged and approval of these materials shall devolve to the regional and division education units (emphasis added).192
The standards and principles laid out in this proposed law translate into a participative and inclusive educational curriculum that repositions children as more than passive recipients of education. This endorses the active role of children within the educational community and the value of their engagements within the system – clear indications of the emerging paradigm.
However, upon further analysis it becomes clear that the BEP is still heavily influenced by the dominant paradigm that focuses on the socializing function of education. As stated in its goals, the primary objective of the BEP is “to create a functional basic education system that will produce productive and responsible citizens equipped with the essential competencies and skills for both life-long learning and employment (emphasis added).”193 This future-looking construction of children is expressed by what the BEP envisions as the “results” of an enhanced education:
An individual who has learned…the competence to engage in work and be productive, the ability to coexist in fruitful harmony with local and global communities, the capability to engage in autonomous critical thinking, and the capacity to transform others and one’s self.194
In fact, the BEP states that its objective is to prepare children for the future where they “will be able to think for [themselves] and make sound decisions on the best courses of action to take in the different circumstances of [their lives] (emphasis added).”195 It clearly uses the language of the dominant paradigm when it declares that education must prepare the child to be “ready to
192 House Bill No. 6643 introduced by Reps. Escudero, Angara, Belmonte (F.), Piamonte, Teodoro, Gonzales (N.), Magsaysay (E.), Rodriguez (R.), Palmones, Bagasina, Climaco, Herrera-Dy, Dimaporo (F.), Co, Batocabe, Garbin, Alcala, Calixto-Rubiano, Sakaluran, Castro, Ocampo, Aumentado, Biazon, Cortuna, Abaya, Almario, Sarmiento (M.), Arago, Yap (S.), Lagman, Abayon, Cerafica, Velarde, Teves, Gullas, Mercado (R.), Almonte, Garin (S.), Gunigundo, Banal, Sy-Alvarado, Agyao, Dalog, Tinga, Asilo, Castelo, Espina, Zamora, Balindong, Gonzalez, Evardone, Flores, Lacson-Noel, Jalosjos (R.), Briones, Lagdameo (M.), Noel And Limkaichong, Per Committee Report No. 2438, An Act Enhancing the Philippine Basic Education System by Strengthening Its Curriculum and Increasing the Number of Years for Basic Education, Appropriating Funds Therefor and for other Purposes. 193 Department of Education, supra note 185 at 7. 194 Ibid at 6. 195 Ibid.
130 take his or her place as a productive member of society.”196 As such, the BEP reinforces the view that children are the passive recipients of education where they simply receive an education based on an enhanced and decongested curriculum.
Equally significant, the BEP maintains universalized conceptions of children and childhood by declaring that its objective is to provide an education that fulfills the basic learning needs of all students; is geared towards excellence; and is internationally recognized and comparable.197 As James and James correctly observe, a universal and monolithic version of the educational needs of children “is, in essence, a societal prescription of what children need in order to secure their future as adult citizens.”198
Closely related to this homogenization of the educational experience of children, the BEP also reinforces a developmental view of children that depends heavily on assumptions about the relationship between age, competence and future contributions to society. The BEP declares that basic education requires restructuring by the addition of two years of schooling because as it currently stands “most graduates are too young to enter the labor force (emphasis added).”199 Thus, if they do not pursue higher education, these children “would be unproductive or be vulnerable to exploitative labor practices.”200 The BEP further asserts that “psychologists and educators say that children under 18 are generally not emotionally prepared for entrepreneurship or employment or higher education disciplines.”201 These rationalizations for the BEP clearly demonstrate the heavy influence of the dominant paradigm.
Equally important, the justification used by the Department of Education for the BEP undermines its claim of recognizing the active role of students in educational policies. In promoting the BEP, the Department of Education sees the “dismal results” of both national and international standardized tests as a characterization of children as failures. Such a characterization, in fact, endorses a construction of children as passive recipients of education. The Department of Education states:
196 Ibid. 197 Ibid at 7. 198 James and James, supra note 25 at 122. 199 Department of Education, supra note 185 at 4. 200 Ibid. 201 Ibid. But see the next Chapter on Labor for a comprehensive discussion of the relationship between working children and the school.
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The poor quality of basic education is reflected in the low achievement scores of Filipino students. Many students who finish basic education do not possess sufficient mastery of basic competencies….The National Achievement Test (NAT) for grade 6 in SY 2009-2010 passing rate is only 69.21%. Although this is already a 24% improvement over the SY 2005-2006 passing rate, further reforms are needed to achieve substantial improvement. The NAT for high school is 46.38% in SY 2009-2010, a slight decrease from 47.40% in SY 2008-2009.
International tests results like 2003 TIMSS (Trends in International Mathematics and Science Study) rank the Philippines 34th out of 38 countries in HS II Math and 43rd out of 46 countries in HS II Science; for grade 4, the Philippines ranked 23rd out of 25 participating countries in both Math and Science. In 2008, even with only the science high schools participating in the Advanced Mathematics category, the Philippines was ranked lowest.202
Clearly, the Department of Education has used these performance indicators to quantify the (in)competence of children.203 As such, the test results reflect the failure of children to achieve what they should be capable of doing at particular stages of their development. This is reflective of the exclusionary and universalizing construction of children characteristic of the dominant paradigm. This then justifies action on the part of the state to remedy the situation by determining the “proper” education for children and imposing changes to the educational system that it deems necessary for children to become204 productive and responsible adults. Accordingly, this educational reform is constrained by “what is expected of young people and what is in effect natural for them.”205
3. EDUCATIONAL POLICY REFORMS AND THE PARTICIPATION OF CHILDREN:
MUTED VICTORY
In the end, both of these policy reforms initiated by the Department of Education presented in this sub-section demonstrate how, on the one hand, the state has expressed its desire to move
202 Ibid at 3. 203 On the issue of performance indicators, Bautista, Bernardo and Ocampo, supra note 173 at 74 find that: “The most important metric to develop, however, relates to student learning. Earlier studies have revealed fundamental problems in [the Department of Education’s] systems for assessing student learning and in [the Department of Education’s] internal capacity to maintain an adequate educational assessment system….[S]ome schools are helping students achieve much higher levels of attainment that are not being measured by [the Department of Education’s] existing tests and measures.” 204 The literature on childhood studies is replete with discussions on how children have been viewed as “becomings” rather than “beings”. See e.g. Chris Jenks, Childhood, 2d ed (London: Routledge, 2005). 205 Roger Smith, Doing Justice to Young People: Youth Crime and Social Justice (Oxon: Willan Publishing, 2011) at 16.
132 towards the recognition of the participation of students in the system of education, but on the other, it is still highly focused on the socializing function of education to the exclusion of children. Although there is an expressed effort to involve students in the institution of a system of education relevant to their needs as evidenced by changes in content and performance standards, this is, nevertheless, contradicted by the underlying rationalizations used by the Department for its policy reforms. These justifications rely on a framework that is based on the overarching authority of education to develop and produce productive and responsible citizens and adults. As such, the actual engagements of students are dismissed as “failures” which, in turn, legitimizes their perceived inherent vulnerability and dependency. Thus, students are merely treated as the targets of educational policies that seek to cure them of their inadequacies and prepare them to take their place as a productive member of society. In the end, the educational experience of students will remain to be authoritative and hierarchical negating the claim of recognizing their participation within the educational system.
V. CONCLUDING REFLECTIONS:
MOVING FORWARD
The effect of the educational system on the lives of children is undeniable. This is even more evident in a country where people are heavily dependent on education as their primary source of learning.206 It is typical for parents in the Philippines to tell their children “edukasyon lang ang maipamamana namin sa iyo” (education will be our only legacy to you), highlighting the value of education in society.207 In fact, the school is considered a strong institutional power in the country.208
As demonstrated in this chapter, there is an intricate Philippine legal environment with respect to education. Although there is a strong presence of the dominant understanding of education articulated in the solemn duty of educational institutions to prepare the child for the responsibilities of adulthood, there is also a distinct attraction in the law to the emerging paradigm where the role of students within education is acknowledged and their rights within
206 See e.g. Education Act of 1982, supra note 76, s.19 and Governance of Basic Education Act of 2001, supra note 28, s. 2. 207 Yacat and Ong, supra note 29. 208 Velayo, supra note 29.
133 the system recognized. The interplay of these frameworks has been exhibited in, among others, the judicial determination of the fundamental rights and freedoms of students within the school system and the educational policy reforms initiated by the executive branch.
Moving forward, we must clearly recognize that there is so much promise in the emerging paradigm to transform not only the Philippine educational system in general but also the educational experiences of the Filipino child in particular. The fact that the effects of this emerging framework have been limited and undermined clearly demonstrates how the discourse of children and childhood influences the recognition of and opportunities for the participation of children within the educational system.
The value of the emerging paradigm is the possibility that it opens up for the state to shift its focus from the socializing function of educational institutions towards the recognition of the interdependent engagements of the different members of the educational community – including children. Thus, the framework does not simply involve looking to children. More importantly, it reformulates the purpose of education as a shared undertaking, which challenges the overarching authority of educational institutions. As such, in reformulating education in the Philippines to push for the participation of children, we must draw upon indigenous relational connections evocative of the kapwa philosophy where all the members of the educational community are engaged with their system of education. This is accomplished not only through the exercise of rights but also through the establishment of connections as expressed in reciprocal responsibilities and relationships.
To be sure, the recognition of the engagements of each member of the educational community, including children, does not mean unabridged license. It is a privilege that assumes a correlative duty to exercise it responsibly drawing on the relational framework of shared purposes. In fact, as underscored throughout this thesis, the participation of children respects the relationships formed and maintained between children and the people around them in the environment that they are in. This implies that within the educational setting, claims of rights of students establish, engage and respect the connections that they have with the educational community. Far from being unfettered choice, these assertions entail interdependency, which according to
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Minow “signal[s] and strengthen[s] [an individual’s] relation to a community.”209
For example, the claims brought by students in the judicial cases were specifically treated by the court as constitutional questions. On one level, they are, indeed, claims by students for the recognition of their fundamental rights and freedoms. But on another level, they are also claims for an acknowledgment of their participation within education. The rights claim of the students is their way of negotiating new boundaries and connections between themselves, the school and the state. This participation entails not only exercising their rights but also owning up to their responsibilities and establishing relationships. By seeking a redefinition of the boundaries of the school system to recognize the exercise of their rights, the students are making a claim for the educational system to acknowledge their voice. Minow expounds on understanding these assertions of rights, especially by students within the educational system:
When advocates for children ask a court to recognize children’s rights to privacy, due process, or other protections, they seek judicial statements that will articulate new boundaries and connections between children and adults. They seek the chance to use these judicial articulations to negotiate new relationships between children and adults in the arrangements of daily life.
…Rights provide a language that depend upon and express human interconnection at the very moment when individuals ask others to recognize their separate interests.
The language of rights thus draws each claimant into the community and grants each a basic opportunity to participate in the process of communal debate. The discourse of rights registers commitment to a basic equality among the participants as participants, even when the participants are children.
…The equality embodied by rights claims is an equality of attention….Rights – as words and as forms – structure attention even for the claimant who is much less powerful than the authorities, and even for individuals and groups treated throughout the community as less than equal.”210
To construe these claims as more than an assertion of constitutional rights provides an appreciation of the students’ intimate connections to the educational community where they “implicitly invest themselves in a larger community, even in the act of seeking to change it.”211
209 Martha Minow, Making All the Difference: Inclusion, Exclusion and American Law (New York: Cornell University Press, 1990) at 294. 210 Ibid at 296-297. 211 Ibid at 294.
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A crucial context not to be overlooked in all the court cases is the reciprocity of responsibilities. While the rights of these students are “not only an inevitable part of the process of attending school [but] also an important part of the educational process,”212 these rights are not to collide with the rights of others.213 In this formulation, the students are protected in the exercise of their rights but imbued with the responsibility of respecting the rights of others. Thus, the recognition of the assertions of these students denotes a “similar regard for the claim of others.”214 This signifies an understanding of the participation of children that values the relationship with “the other.”215 In fact, the assertions of these students clearly demonstrate how they themselves recognize their connection with the entire school community. The students in the 1995 Ebralinag216 freedom of religion case purposely argued:
[W]hile [we] do not take part in the compulsory flag ceremony, [we] do not engage in external acts or behavior that would offend [our] countrymen who believe in expressing their love of country through the observance of the flag ceremony. [We] quietly stand at attention during the flag ceremony to show [our] respect for the right of those who choose to participate in the solemn proceedings.217
With respect to the policy initiatives of the Department of Education, it is clear that these were undertaken because of certain shortcomings in the educational system. The Department of Education has understood these as the failings of students. Such understanding is not only restrictive but also misleading. But with the shared purpose framework that de-emphasizes the overriding authority of education in society and values the interdependent engagements of the educational community including students, these shortcomings could, in fact, be acknowledged as failures of the system itself. Thus, it should be understood that the students themselves, using the very same measures devised by the State, have engaged with the system by expressing their rejection, appreciation or even indifference to the education that they have been receiving. The fact that these engagements of children within the educational system, albeit not necessarily in the way the state intended, have pushed the Department of Education to re-examine its educational policy should have signaled, as put by James and James, “the importance, if social policies are to be successful, of acknowledging the very real contributions of children’s agency
212 Malabanan v. Ramento, supra note 127. 213 Ibid. 214 Minow, supra note 209 at 294. 215 See the discussion of the indigenous concept of “kapwa” as a representation of “the other” in Section IV of the Family Chapter. 216 Ebralinag, et al v. The Division of Superintendent of Schools of Cebu, supra note 146. 217 Ibid.
136 to the achievement of desired outcomes.”218 By understanding the moves of the Department of Education as concrete responses to the engagement of students, children are shown to be agents whose interactions with others make a difference “to a relationship or to a decision, to the workings of a set of social assumptions or constraints.”219 The Department of Education cannot simply dismiss children as the mere targets of its policies and reforms. At the heart of these initiatives are children who have maintained an active, involved and intimate role in the shaping of their educational experiences. McDonald correctly points out:
[P]olicy which fails to engage with children may miss the point of who children think they are and what children want. It may, for example, imagine identities which do not or at best, partially exist. Re-stated epistemologically, such misidentification in policy underscores what the ‘new’ sociologists of childhood have been trying so hard to tell us – that policy knowledge ‘misreads’ children, in particular with regard to children’s competence and agency. More importantly (and shifting to the ontological level), failure to understand how policy operating as welfare discourse shapes identity also contributes to failure to understand how they shape the materiality of children’s lives. Misrecognition at this level can have a range of consequences. It may, for example, inadvertently and inappropriately totalise the social category of children and constrain our capacity to acknowledge and respond to difference (citations omitted).220
Significantly, the role of students in the educational system cannot simply be dismissed as incidental for “the inherent vulnerability which we perceive in children is not an objective definition of their capacity.”221 Along these lines, Christensen aptly argues: “[T]he construction of children as essentially vulnerable tends to exclude consideration of the cultural and social context in which vulnerability is constituted and to render children’s own understandings of themselves…as unimportant.”222 The specific instances laid out in this chapter that have evoked a state response must be seen as a demonstration of the engagements of children. Children, whether we see them this way or not, are participants in the education system and are engaged with it. They are the individuals who actually live out educational policies and they inevitably respond to these “power, authority and value systems,”223 be it through rejection, appreciation, indifference, disobedience or demands for change.
218 James and James, supra note 25 at 126. 219 Mayall, supra note 50 at 21. 220 McDonald, supra note 35 at 242. 221 Gerison Lansdown, “Children’s Rights to Participation and Protection: A Critique” in Christopher Cloke and Murray Davies, eds, Participation and Empowerment in Child Protection (London: Pitman Publishing, 1995). 222 Pia Christensen, “Childhood and the Cultural Constitution of Vulnerable Bodies” in Alan Prout, ed, The Body, Childhood and Society (Great Britain: Macmillan Press Ltd., 2000) at 38. 223 James and James, supra note 25 at 118.
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CHAPTER III
THE CHILD, LABOR AND THE LAW
…[C]hildhood is endowed with certain inherent and inalienable rights, among which are freedom from toil for daily bread…. …[W]e declare ourselves to be helpless and dependent; that we are and of right ought to be dependent, and that we hereby present the appeal of our helplessness that we may be protected in the enjoyment of the rights of childhood. …[W]e demand the restoration of our rights by the abolition of child labor….1
[W]e are committed to promoting our rights, developing actions aimed at reducing poverty, and improving our working conditions; we are committed to fighting against child trafficking and exclusion, and also against violence perpetrated against children – and working children in particular. We promote and defend the dignified work of children. We are the main actors in changing our working and living conditions. We ask for more consideration and respect of our rights by our governments and by all the peoples. We would like them to support us and to see us as children who have rights, as all other children have. They must listen to us and they must involve us in the decision-making processes that concern us: our proposals must be taken into account. Other children have to accept us and see us as brothers and sisters.2
These two statements are instructive because they set up the conversation on the conflicting positions about children and work. Although both passages use “we”, an important qualifier is that they come from two distinct sources. Articulated almost a century apart, the former is the battle cry of campaigners on behalf of working children formulated in the early 1900s, while the latter is an expression by working children themselves made in 2006. These conflicting views represent the debates surrounding children and work.
1 Declaration of Dependence by the Children of America in Mines and Factories and Workshops Assembled, National Child Labor Committee 1913. Russell Freedman, Kids at Work: Lewis Hine and the Crusade Against Child Labor (New York: Clarion Books, 1994) at 91. 2 Final Declaration of the 3rd Meeting of the World Movement of Working Children held in Siena, Italy from October 15-29, 2006.
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One view sees children and work as incompatible. The antagonism between these two is sufficiently articulated in the statement that “the term child labour is a paradox for when labour begins…the child ceases to be.”3 When children work – or in the words quoted above, “toil for daily bread” – childhood itself is violated. From this perspective, children are clearly seen as victims. Because of this vulnerability, they have to be protected by prohibiting them from entering the “adult” world of work. The state then, as parens patriae, is under the obligation to protect those of “tender years.”4 An essential part of the state’s responsibility to act as the “father of his country”5 is ensuring that children remain in “a special and separate world, regulated by affection and education, not work or profit.”6 By keeping children away from work, the state preserves their childhood.
In contrast, the opposing view acknowledges not only the capacity of children to work but also the reality that they are already in the work force. This position, in fact, recognizes the right of children to work, albeit with dignity and freedom from exploitation. On this view, children are seen as involved participants in the labor force with rights as workers and citizens.
To a great extent, the legal and policy frameworks in the Philippines, a country in which there are in fact millions of working children,7 are based on the first perspective. Prohibition of child work is the norm because it is believed that any type of work both harms children and deprives them of their childhood. A childhood involving work and economic participation goes against the norm of a happy, innocent and protected childhood. In fact, without requiring actual scrutiny of whether a particular form of child work is harmful or not, the legal system subsumes all
3 Hugh Cunningham, “The Rights of the Child and the Wrongs of Child Labour An Historical Perspective” in Kristoffel Lieten and Ben White, eds, Child Labour: Policy Options (Amsterdam: Aksant Academic Publishers, 2001) at 15. 4 See e.g. Malto v. People, G.R. No. 164733, Sept. 21, 2007; People v. Baylon, G.R. No. L-35785, May 29, 1974. 5 See e.g. Vasco v. Court of Appeals, G.R. No. L-46763, February 28, 1978. 6 Viviana Zelizer, Pricing the Priceless Child The Changing Social Value of Children (New York: Basic Books, Inc., 1985) at 209. 7 According to the International Labour Organization and the National Statistics Office, in 2011, there were 5.492 million working children from the ages of 5-17 in the Philippines. International Labour Organization (ILO) and the National Statistics Office (NSO), “The Number of Working Children 5 to 17 Years Old is Estimated at 5.5 Million (Preliminary Results of the 2011 Survey on Children)” online: National Statistics Office
139 forms of child work under the morally reprehensible label of “child labor”. With the language of child labor, the legal system has devised a universal framework based on prohibition and “removal”. However, as this chapter argues, such a framework undermines children, their capacities, realities and personhood. The chapter attempts to show that a simplistic strategy of prohibition and removal may cause more harm to children, proving the fitting adage of throwing the baby out with the bath water. These harms include cutting off the means of survival for the child and the family, pushing the child into underground work, forcing the child out of school, failing to put in place protective measures (wages, health, safety) for children who are actually working because of the refusal to recognize their existence, and forcing working children to question their identity. Maintaining a discourse of prohibition puts children in a precarious situation. Wedged between the supposed ideal of a “healthy and normal childhood” and the reality and necessity of child work, the millions of working children in the Philippines8 are made to believe that somehow their “childhood” is “lost” which must be “rescued”.
This chapter does not dispute that there are situations of child work considered abusive and exploitative. Rather, what the chapter attempts to show is that abuse and exploitation do not sufficiently describe the phenomenon of child work. Child work involves a whole gamut of contextualized circumstances and relationships: the decision to work is not only a child’s but also the family’s; the reasons for working are not necessarily confined to economics; the work environment is affected by internal and external factors; child workers may see their work and the circumstances surrounding it differently from an “outsider”; child workers do not necessarily dichotomize between work and education. These and many other contextual circumstances show the diversity of the lives of children, their families and the communities they live in.
The second statement quoted at the beginning of this chapter – the declaration by working children themselves – representing an alternative view of children and work, is significant in that it clearly situates the primary stakeholder in child work within the discourse. It indicates that children indeed offer a significant perspective on the way they live their lives. After decades
8 Worldwide, the International Labor Organization-International Programme on the Elimination of Child Labour (ILO-IPEC) in its statistical information on working children for 2008 found that there were some 306 million children in economic activity among the world’s almost 1.6 billion children from 5 to 17 years old. This accounts for almost one-fifth of all children in this age group (19.3%). This number includes all children in employment whether in safe and allowed work or in unsafe and hazardous work. Yacouba Diallo, et al., Global Child Labour Developments: Measuring Trends From 2004 to 2008 (Geneva: International Labour Organization, 2010).
140 of being protected and looked after – which translated into their virtual invisibility in the discourse on child work – an emerging perspective now recognizes children as active participants in the construction of their lives. This perspective, mainly influenced by childhood studies and the child rights movement, respects and values what children have to say about their lives. Christensen and Prout write of this emerging paradigm:
It focuses on children as social actors in their present lives and it examines the ways in which they influence their social circumstances as well as the ways in which they are influenced by them. It sees children as making meaning in social life through their interactions, with other children as well as with adults. Finally, childhood is seen as part of society not prior to it and it is subject to the same type of influences that shape other social phenomena.9
Section I of the chapter presents the competing paradigms of children and work. In this section, the framework of the dominant and emerging paradigms of children and childhood are set out. These paradigms provide the foundation for analyzing child work laws and policies. Through an understanding of the paradigms laid down in this section, the chapter is able to situate the influences of the definitions and regulations of child work in the Philippines.
The dominant paradigm sees the incompatibility between children and work. This flows from the supposed inherent characteristics of childhood i.e. innocence, dependency and vulnerability. As such, work deprives children of their childhood which is not only an “aberration [but also] an outrage.”10 On the other hand, the emerging paradigm repositions children in the discourse of work. More than objects of protection, children are, in fact, active participants in the shaping and understanding of the phenomenon of child work. Understanding child work entails an examination of the cultural and social context in which it occurs. This necessitates an exploration of the diverse realities of children and an appreciation of how they make meaning of these experiences.
Section II then reviews the history of child work legislation in the Philippines, revealing a long history of a prohibitory regime against child work. It traces how child work laws have shifted
9 Pia Christensen and Alan Prout, “Anthropological and Sociological Perspectives on the Study of Children” in Sheila Greene and Diane Hogan, eds, Researching Children’s Experience Methods and Approaches (London: Sage Publications Ltd., 2005) at 42. 10 Allison James, Chris Jenks and Alan Prout, Theorizing Childhood (Cambridge: Polity Press, 1998) at 101.
141 from regulation to prohibition showing the changing characterizations and evaluations of work and children.
Section III goes on to examine the decisions, interests and assumptions that have shaped child work legislation in the Philippines. Specifically, this section looks at the varying themes culled from the child work laws that reveal the influences of the dominant paradigm of children and childhood. It examines how these influences have impacted the legal response to child work.
As will be argued, child work in the Philippines largely reflects the dominant paradigm and is based on an idealized vision of what children should be and how they should live their childhood. By prescribing what children should be doing – and more emphatically what they should not be doing – laws and policies reveal their antagonism towards child work. Because childhood has been constructed as a time solely for innocence, dependency, play and schooling, any type of work then for the child goes against the order of nature. Such construction has led to the articulation of the phenomenon of child work in a value-laden language, that of harmful and abusive “child labor”. Thus, the discourse of child work has come to be confined to the harmful and damaging effects of work on children.
The final Section IV, then engages in a critical assessment of the current legal framework using emerging paradigms of children and childhood which provide a more expansive and contextually-sensitive understanding of children and their realities. Social science evidence, especially the experiences of working children themselves, is used to support alternative ways of looking at children and work.
The section presents a child work framework fully informed by the realities of children. By recognizing the experiences of working children, these children are given a voice in the process of making decisions that affect their lives. This is the very essence of the growing collection of empirical studies that have recognized the participation of children where their views are given due weight. With a focus on “how the child experiences work, and what the child needs to thrive and develop…[and how] all children [are to] be treated with full respect for their rights,
142 opinions, potential and individuality,”11 this emerging paradigm suggests a path for reformulation of the law of child work.
I. THE COMPETING PARADIGMS OF CHILDREN AND WORK
A. THE DOMINANT PARADIGM
The idea that children and work are incompatible has generated the current dominant discourse on child work. Because work does not belong in childhood, working children are in fact deprived of their childhood. Reflecting the influence of such dominant paradigm, international standards and policies on child work have “tended to be abolitionist in tone….”12 Most prominently, the International Labour Organization (ILO) has devoted a major part of its standard setting activity to abolition of child labor.13 In the 2002 Global Report of the International Labour Office, it is declared:
Child labour is clearly detrimental to individual children, preventing them from enjoying their childhood, hampering their development and sometimes causing lifelong physical or psychological damage; it is also detrimental to families, to communities and to society as a whole. As both a result and a cause of poverty, child labour perpetuates disadvantage and social exclusion. It undermines national development by keeping children out of school, preventing them from gaining the education and skills that would enable them as adults to contribute to economic growth and prosperity.14
The activities of the ILO to combat child labor originate from its creation in 1919.15 From its earliest minimum age convention, the ILO believed that children below a certain age should be kept out of work and that their work be prohibited, with that minimum age being progressively raised over time. This operated under a general framework of prohibition. In 1919, the ILO’s
11 William Myers and Jo Boyden, Child Labour: Promoting the Best Interests of Working Children (London: International Save the Children Alliance, 1998) at 5. 12 Holly Cullen, “Child Labor Standards: From Treaties to Labels” in Burns Weston, ed, Child Labor and Human Rights Making Children Matter (London: Lynne Rienner Publishers, Inc., 2005) at 87. 13 Ingrid Stegeman, “Child Labour in the Context of Globalisation” in G.K. Lieten, ed, Working Children Around the World Child Rights and Child Reality (New Delhi: Institute for Human Development, 2004) at 54. Although the ILO distinguishes between “work” and “labor”, such distinction is fraught with complications especially when applied to the Philippines as discussed in Section III.B. below. 14 International Labour Office, A Future Without Child Labour: Global Report under the Follow-up to the Declaration on Fundamental Principles and Rights at Work (Geneva: International Labour Office, 2002) at 1. 15 Sharon Detrick, “Child Labour and the UN Convention on the Rights of the Child” in G.K. Lieten, ed, Working Children Around the World Child Rights and Child Reality (New Delhi: Institute for Human Development, 2004) at 31.
143 first minimum age convention prohibited children under the age of fourteen years from working in any public or private industrial undertaking.16 Interestingly, at that early date, the ILO had already granted exceptions to certain countries where the provisions of the Convention were not to be applied e.g. in Japan, children under fourteen but over twelve years of age could be admitted into employment if they have finished the course in the elementary school;17 and in India, the minimum age for employment was also set lower, at twelve years, and those even younger were allowed to work under certain conditions.18 These exceptions were an implicit recognition of the complexity of setting universal norms. Later, the prohibition of child work in industries for children under fourteen years of age was expanded to other areas of work, specifically: work on sea vessels;19 agriculture;20 and non-industrial employment.21 Then between 1936 and 1959, the minimum employable age for these different industries was raised to fifteen years.
In 1973, the ILO consolidated these industry specific conventions into one convention, operative to this day, which solidifies the philosophy of keeping children away from work. The ILO Minimum Age Convention, 197322 mandates the minimum age of fifteen years for entry to any employment. It provides that the minimum employable age “shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years.”23 More generally, the prohibition against child work is made clear in its opening provision as it insists that:
Each Member for which this Convention is in force undertakes to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.24
16 Convention Fixing the Minimum Age for Admission of Children to Industrial Employment (entered into force 13 June 1921) [C5 Minimum Age (Industry) Convention, 1919]. 17 Ibid, art. 5 18 Ibid, art. 6. 19 Convention Fixing the Minimum Age for Admission of Children to Employment at Sea (entered into force 27 September 1921) [C7 Minimum Age (Sea) Convention, 1920]. 20 Convention Concerning the Age for Admission of Children to Employment in Agriculture (entered into force 31 August 1923) [C10 Minimum Age (Agriculture) Convention, 1921]. 21 Convention Concerning the Age for Admission of Children to Non-Industrial Employment (entered into force 6 June 1935) [C33 Minimum Age (Non-Industrial Employment) Convention, 1932]. 22 Convention Concerning Minimum Age for Admission to Employment (entered into force 19 June 1976) [C138 Minimum Age Convention, 1973]. 23 Ibid, art. 2(3). 24 Ibid, art. 1.
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In its desire to set normative frameworks for child work, the ILO Minimum Age Convention, 1973 makes it appear that keeping children out of work is not only desirable but also possible. Such a mandate is based on the dominant views of children. The setting of a universal minimum employable age is reflective of the thinking that the experience of childhood is homogeneous in every place and situation. At the same time, the insistence on “completion of compulsory schooling” is a reinforcement of the belief that childhood is reserved for the world of care and instruction as embodied by attendance in school. It is in the nature of children that they need to be protected from the harsh realities of work.
A review of the history of childhood in the West reveals how this movement towards the removal of children from the world of work came about. Until the early 19th century, a majority of families routinely sought employment for their children.25 Cunningham writes of the British experience:
States and parents had until [the 1830s] automatically assumed that one of their roles was to find work opportunities for children. The idle child was the one who was feared, and to prevent the damage that such children could do to their own futures and to the peace of their neighborhoods, strenuous efforts were made to provide work for children.26
Similarly, in the United States, children were active participants in the family economy. Zelizer states that work for children “was not only economically indispensible but also a legitimate social practice.27 She concludes that: “American children had always worked.”28 However, from the mid-19th century, calls for the removal of children from labor took shape. Two key factors, among others, were significant in this development: 1) changes in economic conditions; and 2) a redefinition of childhood. The link between these two factors cannot be overemphasized. Because the necessity of child work to the family economy had been reduced,29 the worth of children had also been transformed from economic to sentimental. Zelizer, in her seminal work
25 Colin Heywood, A History of Childhood Children and Childhood in the West from Medieval to Modern Times (Cambridge, UK: Polity Press, 2001) at 121. 26 Cunningham, supra note 3 at 14. 27 Zelizer, supra note 6 at 59. 28 Ibid. 29 Zelizer writes: “Rising real incomes, on the other hand, explains the reduced need for children’s wages. As the standard of living steadily improved between the late nineteenth century and the 1920s, child labor declined simply because families could afford to keep their children in school. Particularly important was the institutionalization of the family wage in the first two decades of the twentieth century, by which a male worker was expected to earn enough to forgo the labor of his wife and children.” Ibid at 62-63.
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Pricing the Priceless Child, famously wrote:
While in the nineteenth century, the market value of children was culturally acceptable, later the new normative ideal of the child as an exclusively emotional and affective asset precluded instrumental or fiscal considerations….The economic and sentimental value of children were thereby declared to be radically incompatible.30
With the devaluation of the economic worth of child work also came a construction of childhood that led to the moral outrage against child work. This construction has three distinct characteristics emblematic of the dominant paradigm: organic, romantic and utilitarian. First, Cunningham and Stromquist trace a construction of childhood coming from ideas of nature where: “[c]hildhood had been set aside as a time for growth and play. There was an ‘order of nature’ whereby the adults in a family should provide for the fledgling children.”31 Such an endogenous representation of childhood has been instrumental in universalizing these Western views. Because childhood is based on an order of nature, all children pass through the same, predetermined stages of development. Boyden, et al explain:
Defining development in terms of progressive stages fits the empirical observation that children everywhere grow bigger and stronger with age and master new skills and new insights daily. It also seems to make feasible the measurement of developmental progress in individual children through the application of behavioral and developmental tests. And very importantly, it apparently provides a benchmark of well-being upon which child care services and education programmes at all levels, pre-school through to higher education can be built.32
Thus, when child development theory prescribes that it is in the best interest of children to be free from work, this is perceived as inherent in childhood. Necessarily, this view results in labeling as problematic those whose development and experience are different, specifically working children. The reliance on a “natural” childhood alienates the millions of children who perform work and who do not conform to the prescribed standard. A universalist approach simply falsifies the lived realities and experiences of these children.33 Working children then become the targets of intervention because they are considered as either deviants or victims.
30 Ibid at 11. 31 Hugh Cunningham and Shelton Stromquist, “Child Labor and the Rights of Children: Historical Patterns of Decline and Persistence” in Burns Weston, ed, Child Labor and Human Rights Making Children Matter (London: Lynne Rienner Publishers, Inc., 2005) at 60-61. 32 Jo Boyden, et al., What Works for Working Children (Sweden: Save the Children Sweden, 1998) at 31. 33 Manfred Liebel, A Will of Their Own: Cross-Cultural Perspectives on Working Children (London: Zed Books Ltd., 2004).
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Second, romantic notions of childhood see this as a stage of being innocent and carefree. Childhood is defined as a period of happiness and dependency. Children are “spared” from the responsibilities of the harsh adult world because of the belief that adults should be responsible for them. Zelizer writes: “for reformers, true parental love could only exist if the child was defined exclusively as an object of sentiment and not as an agent of production.”34 This legitimizes the construction of children as dependents. Consequently, child work is vilified as an aberration from the notion of a happy and healthy childhood.
The representation of childhood as a period of protected innocence and economic dependency has obscured our understanding of the meaning and worth of child work. Because children are measured against a conception of “the child” – as being dependent, carefree, and within the confines of the family and school – the working child, who does not necessarily fit this mold, needs rescuing. To bolster this view, working children are typified as pitiful children in slave- like conditions. Thus, the phenomenon of working children has become inextricably linked to abuse and exploitation. Of course, this is not to say that such conditions do not exist. The problem lies in the instinctive characterization of child work as offensive to childhood. With the dominant representation of child work as abusive, the proper response of the state is to “remove and rescue” children from these activities.
Third, a utilitarian view constructs childhood as a phase where children are prepared to become useful and productive adults.35 Such a construction influences how the capabilities of children and their “successful” socialization into maturity are understood. Seen as future assets, children are protected from work in their childhood to preserve their potential for a productive adulthood. Cunningham writes of this utilitarian discourse:
Immersion in labour at too young an age [unfits] children for an appropriate role in adulthood. Their health and physique might be damaged[:] they would, if female, fail to learn essential homemaking skills; if male, they would, by confinement within routine forms of work exclusive to children, fail to acquire the range of aptitudes
34 Zelizer, supra note 6 at 72. 35 See e.g. Chapter II of this thesis as its examines the sacred task of educational institutions in developing children to become responsible adults and citizens. See also George Guthrie and Pepita Jacobs, Child Rearing and Personality Development in the Philippines (University Park: Pennsylvania State University Press, 1966).
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necessary for survival in the adult labour market.36
Expounding on how a utilitarian view of childhood is opposed to child labor, Cunningham and Stromquist explain:
Here the argument is that child labor has harmful effects both on individual children and on society as a whole. Individual children suffer in their health, and they learn skills that serve them in childhood but for which there is no useful outlet in adult life. Society as a whole needs adults able to work in a wide variety of roles, both domestic and in the labor market, and child labor [hinders] the development of such adults. Children therefore have a right, from which society benefits, to be trained in skills that will provide them with an adult livelihood.37
The ILO, through its Minimum Age Convention, 1973 supports this utilitarian view. The Convention rests on the assumption that by prohibiting child work – through the progressive raising of the minimum age for employment – it is protecting the future potential of children by allowing for their fullest physical and mental development.38 Cunningham writes of the ILO approach:
The reason for not admitting a child too early to remunerative employment is that its physical development is not yet complete; moreover, the period of childhood ought to be the period of school attendance if the future worker is to have every opportunity of developing his adult personality to the full.39
The concern with the utilitarian argument is the oft-repeated characterization of children as “becomings” rather than “beings”. Because of the emphasis on the potential of children, the current contributions of children are often devalued and depreciated. Lansdown asserts that the social and economic contributions of children are rendered invisible because of the lack of recognition of their capacities.40 At most, working children are seen as pitiful victims burdened with adult responsibilities whose futures are regrettably compromised. The perceived lack of capacity for children transforms them into either objects of development or objects of care.41 This elicits the correlative response from adults to develop these immature children and protect
36 Cunningham, supra note 3 at 15-16. 37 Cunningham and Stromquist, supra note 31 at 78. 38 C138 Minimum Age Convention, supra note 22, art. 1. 39 Cunningham, supra note 3 at 20. 40 Gerison Lansdown, The Evolving Capacities of the Child (Florence, Italy: UNICEF Innocenti Research Centre, 2005). 41 Liebel, supra note 33.
148 them “from the evil influences and the rough reality of (adult) society.”42
B. EMERGING PARADIGM
Because of the growing understanding of childhood as a social construction, a new discourse on children is also emerging. What was once thought to be the natural and universal experience of childhood is slowly coming to be seen as, in fact, a very particular conception influenced by space and time. To this end, childhood is now being examined from a more particularistic and contextually-sensitive framework. Thus James and Prout,43 whose work has been very influential in furthering this new view of childhood, have posited: “Childhood, as distinct from biological immaturity, is neither a natural nor universal feature of human groups but appears as a specific structural and cultural component of many societies”44 This recognition allows our discourse to accommodate and consider the realities of those previously excluded in society. In other words, the contextualization of children’s lives allows for the recognition of different childhood realities. Boyden, et al explain:
But childhood embraces a remarkably heterogeneous set of experiences, supported by a broad range of developmental goals. There are many different kinds of childhood in the world today; children in different places face very different challenges, and are raised in very different ways and with very different expectations and outcomes. Different societies have their own ideas about children’s capacities and vulnerabilities, the ways in which they learn and develop and what is good for them and what is bad. Even basic concepts such as ‘child work’ or ‘child exploitation’ are interpreted in different ways by different people in different parts of the world. Ultimately, children’s well-being and development are influenced more than anything by their own competencies and by the opportunities and constraints, social, cultural, and economic, associated with the particular context they live in.45
With the acknowledgment of the diversity of children’s lives comes a distinctive interest in the child. Because childhood is now about a child’s particular reality, the focus is on how a child
42 Ibid at 275. 43 Alan Prout and Allison James, “A New Paradigm for the Sociology of Childhood? Provenance, Promise and Problems” in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood (London: The Falmer Press, 1997). 44 Ibid at 8. 45 Boyden, et al., supra note 32 at 32.
149 understands and experiences that reality. Children are now seen as social actors46 who are active in the construction and determination not only of their own social lives but also of the lives of those around them and of the societies in which they live.47 Children – whether in families, in schools, at work or in other settings – equally share in the shaping of the experience of childhood, having the capacity to understand their experiences and construct meaning out of them. Myers writes of this appreciation of children:
It understands children to be resilient as well as vulnerable, to be capable as well as inexperienced, to be characterized by knowledge as well as ignorance, to have a variety of intelligences as well as learning needs, and to be active rather than passive agents in their development. It also appreciates that children learn best through personal engagement in life activities, and that crucial self-esteem comes in part from a sense of efficacy in the world. This view contrasts with perspectives that represent children more passively as present or potential victims, as blank slates to be written on by schools and other institutions, or as mere products and expressions of their culture.48
This emerging paradigm is closely linked to the children’s rights discourse in which children are fully recognized as rights holders. They are not mere passive recipients of adult protective care, but are also active holders of rights. The United Nations Convention on the Rights of the Child (UNCRC) fully endorses this view with its strong espousal in article 12 of a child’s right to express his or her views freely in all matters affecting him or her with those views being given due weight.49 In fact, the right of participation is one of the core values of the UNCRC. As active and capable individuals, children contribute to their own development and therefore what they say matters.
Treating children as subjects transforms our understanding of child work. Working children are no longer seen as belonging to the periphery of society, but rather a legitimate and integral part of it. Their lived experiences become a consideration for any program or policy for child work. Our own standards for work may be insufficient, or even flawed, to capture the essence of their realities. Liebel argues that understanding child work denotes:
46 Berry Mayall, Towards a Sociology for Childhood: Thinking from Children’s Lives (Buckingham: Open University Press, 2002). 47 Prout and James, supra note 43 at 8. 48 William Myers, “Valuing Diverse Approaches to Child Labour” in Kristoffel Lieten and Ben White, eds, Child Labour: Policy Options (Amsterdam: Aksant Academic Publishers, 2001) at 40-41. 49 Convention on the Rights of the Child, 1577 UNTS 3 (entered into force 2 September 1990) [UNCRC], art. 12(1).
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Seeing children’s work from the children’s perspective and finding answers to the question of what work means to the children and in what way it is experienced and judged by the children. This means…accepting that children may feel and see their work in quite a different way from which our habitual way of thinking suggests. This includes allowing children’s perspective and judgment [of] their own rightful existence, taking them seriously, and recognizing them as at least equal status.50
Although cautious in its formulation, the UNCRC expresses the opening up of a space for children in the world of work. Article 32(1) of the Convention provides:
States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.51
The greatest value of the UNCRC is its use of the language of rights in its treatment of working children. Not only does the Convention provide for the right of the child to be protected from economic exploitation, it also provides for the child’s right to be protected against hazardous or harmful work. The clear implication of this is that the UNCRC does not prohibit all forms of child work. Rather, it distinguishes between work that is beneficial and work that is detrimental to the child. By recognizing safe and beneficial work for children, the UNCRC, in fact, acknowledges the realities of children who are working. Such recognition allows for the lives of working children to be considered a legitimate childhood experience. Consequently, the principles of upholding the best interests of the child and the child’s right to participation espoused by the UNCRC equally apply to the working child. These values are informed by the fundamental assertion that a working child – as any other child – is not a mere passive object of concern but more importantly, an active rights holder.
Along these lines, UNICEF has expressed the belief that generalizing all child work as dangerous creates more concerns. In its 1997 State of the World’s Children, the agency issued a crucial statement:
But to treat all work by children as equally unacceptable is to confuse and trivialize the issue and to make it more difficult to end the abuses. This is why it is important to distinguish between beneficial and intolerable work and to recognize that much
50 Liebel, supra note 33 at 9. 51 UNCRC, supra note 49, art. 32(1).
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child labour falls into a grey area between these two extremes.52
The distinction between harmful work and other forms of child work is also manifested in the ILO Worst Forms of Child Labour Convention, 1999. In this Convention, the ILO shifted its focus to the most dangerous and abusive forms of child work, implicitly recognizing that other forms of child work are not as harmful.
Previously, when dealing with child workers, adults were influenced by conceptions of children as passive, vulnerable and helpless beings. Thus, the intuitive response was to rescue children from work so that they may reclaim their childhood. But with a reconceptualized childhood, Myers and Boyden push for the full respect of the “rights, opinions, potential and individuality”53 of children. They argue that addressing child work:
Begins from a position of respect for [children’s] persons, for the contribution they make to their families and communities, and for their right and capacity to shape their own lives. It arrives at decisions about children’s work and what should be done about their work, by starting with an in-depth consideration of the children involved. It develops a response to children’s work problems in collaboration with the children and on the basis of what is best for them.54
From this perspective, the working child becomes an active participant in the exchange of insights that facilitate our understanding of child work. Camacho writes:
As children tell and retell, recall and reframe their stories, they are able to construct a clearer understanding of themselves and discover deeper meanings and create new interpretations of the events and experiences in their lives.55
Consequently, any program or policy relating to child work must be contextually sensitive and relevant to the lives of those actually affected.
II. A HISTORICAL ANALYSIS OF THE LEGAL FRAMEWORK OF CHILD WORK IN THE
PHILIPPINES
Having laid out the competing paradigms in Section I, this section now traces the historical
52 UNICEF, The State of the World’s Children 1997 (UK: Oxford University Press, 1997) at 24. 53 Myers and Boyden, supra note 11. 54 Ibid. 55 Agnes Zenaida Camacho, Changing Perceptions of Child Work (Quezon City: SC-UK Philippines and UP CIDS, 2001) at 27.
152 context of child work legislation in the Philippines. By examining the child work laws in each period of its legislative history, this section demonstrates the influences to the definitions and regulations of child work in the Philippines. Looking at this history of child work laws, this section shows how the legal system largely reflects the dominant paradigm and how it has been based on an idealized vision of what children should be and how they should live their childhood. With such a discourse, child work laws and policies have characteristically prescribed the universal response of prohibition and removal.
A. THE FIRST CHILD LABOR LAW OF 1923:
INDUSTRY-SPECIFIC CHILD WORK REGULATION
In its early history, Philippine law specifically recognized child work. As such, the legal thrust then was merely to regulate child work. If there was prohibition, it was industry-specific and limited to particular forms of undertakings.
During the period of Spanish colonial rule56 in the Philippines, working children were prevalent. Work included doing household chores for the clergy, Spanish officials and foreigners in the country. Del Rosario and Bonga, for example, found that children were used by priests to pound ‘palay’57 and clean their churches and convents.58 Similarly, Camagay’s study identified children – called bata59 and whose average age was 13 – working in the households of rich foreigners in the country:
The young boys were often referred to as muchachos. From accounts of foreign visitors of the Philippines during the 19th century the muchachos were usually employed by the male members of the foreign community. They did such tasks as polishing the shoes of the master, pulling the punkah or lighting the lamps of the house….
As for the young girls, they assumed household tasks they were capable of undertaking at their age. These included practically all types of household chores such as cleaning the house, washing clothes and even sewing.60
56 Spanish colonization began with the arrival of Ferdinand Magellan in 1521. 57 Unhusked rice grain. 58 Rosario Del Rosario and Melinda Bonga, Child Labor in the Philippines A Review of Selected Studies and Policy Papers (Quezon City: UP-OVCRD, 2000). 59 Literally means “child” in Filipino. 60 Maria Luisa Camagay, Working Women of Manila in the 19th Century (Manila: University of the Philippines Press and the University Center for Women’s Studies, 1995) at 58-59.
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Aside from working in churches and households, children were also in other industries. They entered the agricultural industry and became part of the labor force of Hacienda (plantation) owners;61 young girls worked in the tobacco manufacturing monopolized by the Chinese; they were also in the industries of embroidery, sewing, tailoring and weaving; young males were employed as service workers; and child vendors were noticeably more visible in the streets and theatres.62 Later, during the American occupation,63 there was widespread and systematic employment of children in the different industries.
In the early 1900s, while the number of working children in the Philippines was increasing, a national campaign against child labor was taking root in the United States, the colonial authority at that time. In the US, laws were passed banning children under a specific age from working in factories; restricting hours of work; requiring documentation of age for child workers; and strengthening compulsory school attendance.64 Before long, such campaigns reached the Philippines.
In 1923, a law65 regulating the employment of children (and women) in certain industries was passed. Although the law specifically targeted children in work, this early attempt at legislation was not intended as a blanket prohibition for all forms of child work. The Act merely regulated the employment of children of certain ages in specific industries. As in the US, this legislation was “framed to control child employment in industries where there was particular cause for concern.”66 But at the same time, this law was also one of the first attempts to use age as a marker for certain types of child work. Even if the assumption was that the harm was considered inherent in the industries and undertakings regulated, such harm was inherent only to children of a certain age. Thus, a child below fourteen years could not work in mines or places with explosives while a child below sixteen was prohibited from working as an operator of
61 Amparita Sta. Maria, Internal Trafficking In Children For The Worst Forms Of Child Labor, A Report Submitted to the ILO-IPEC, 2001. 62 Del Rosario and Bonga, supra note 58. 63 The American rule began in 1898 when Spain ceded the Philippines by virtue of the Treaty of Paris. 64 For a more comprehensive discussion of the history of American child labor laws, see Judith Sealander, The Failed Century of the Child: Governing America’s Young in the Twentieth Century (New York: Cambridge University Press, 2003). 65 Act No. 3071 (1923) An Act to Regulate the Employment of Women and Children in Shops, Factories, Industrial, Agricultural and Mercantile Establishments, and Other Places of Labor in the Philippine Islands; to Provide Penalties for Violations Hereof, and for Other Purposes. 66 Cunningham, supra note 3 at 16.
154 machinery or elevators or as a fireman or motorman or in places with poisonous materials and where games are played for money. The law provided, among others:
Sec. 1. It shall be unlawful for any person, firm, or corporation to employ females or males below the age of fourteen years as laborers in the mines or in places of labor where explosives are used or manufactured.
Sec. 5. It shall be unlawful for any person, firm, or corporation licensed to establish a bar to employ or permit the employment in said bar of females under eighteen or males under sixteen years of age.
Sec. 7. It shall be unlawful for any person, firm, or corporation to employ or permit the employment of persons below the age of sixteen years in departments or divisions of their factories, shops or other places of labor where work is being done in connection with the preparation of any poisonous, noxious, explosive, or infectious substance.
Sec. 8. It shall be unlawful for any person, firm, or corporation to employ or permit the employment in his factory, shop, commercial or industrial establishment or other place of labor of persons below the age of eighteen years for performing any work not specified in this Act which involves serious danger to life of the laborer.
Sec. 10. No person, firm, or corporation shall employ or permit the employment in its factory, shop or other place of labor of any person below the age of sixteen years as operator of elevators, motorman or fireman or to clean machinery, work underground, or do similar work.
Sec. 11. It shall be unlawful for any person, firm, or corporation to employ or cause the employment of persons below the age of sixteen years in billiard rooms, cockpits, or other places where games are played for stakes of money or things worth money, and in dance halls, stadiums, or race courses as bailarinas, boxers, or jockeys.
Sec. 14. It shall be unlawful for any person, firm, or corporation to employ or permit the employment of persons below the age of sixteen years for the sale of medicines and drugs in a pharmacy, or for any work that may affect the health of the public.67
Quite noticeable in this law was the fact that it was specifically directed against the persons, firms or corporations who employed children in their establishments and not the children themselves. Thus, the law was really a regulation against the hiring of children of particular ages in these specific industries and activities. As proof that this early law did not prohibit all forms of child work but instead recognized the reality of working children, it specifically provided for
67 Act No. 3071, supra note 65.
155 measures and conditions aimed at protecting children in the workplace. These provisions included:
Sec. 2. Any person, firm or corporation owning a factory, shop or industrial or mercantile establishment, shall be obliged to provide and place in its establishment, for the use of its laborers, seats proper for women and children and permit them to use said seats during the hours when they are free of work and during working hours, provided they can perform their duties in this position without detriment to efficiency. Laborers shall be allowed not less than sixty minutes for their noon meal.
Sec. 3. No person, firm or corporation shall employ nor permit the employment of any person below the age of sixteen years for work in its shop, factories, commercial or industrial establishment or other places of labor for more than seven hours daily or forty-two hours weekly. It shall be the duty of every employer to post signs in the most conspicuous places in each room where minors are working, stating the hours during which these are authorized to work.
Sec. 4. No person, firm or corporation shall employ nor permit the employment of any boy or girl below the age of fourteen years in its factory, shop, commercial or industrial establishment or other place of labor on school days, unless such child knows how to read and write. Every employer shall be obliged to have in his establishment a duly certified copy of the birth certificate of each of his laborers below the age of eighteen years while such laborer is employed by him.
Sec. 9. Any person, firm or corporation owning, leasing or managing a factory, shop or place of labor of any description shall be obliged to establish for the use of its laborers separate and suitable closets and separate lavatories for males and females, and to provide at least one dressing-room for the women and children: Provided, That the Director of the Bureau of Labor shall be authorized, in his discretion, to exempt from this provision small shops which, on account of their small capital, cannot comply with the provisions of this section.
Sec. 12. No person, firm or corporation shall employ in its factory, shop or other place of labor or permit the employment therein of any person below the age of sixteen years, to work before six o’clock ante meridian or after six o’clock post meridian.68
B. THE 1952 LAW:
TRANSITION FROM REGULATION TO PROHIBITION
The 1950s saw the introduction of universal minimum age legislation and with that came a shift in approach from regulation to the blanket prohibition of child work. During this transition from
68 Ibid.
156 regulation to prohibition the law introduced distinctions between prohibited employment and permissible work by use of such standards as “light work”, prejudicial to normal development and the like. Such distinctions served to indirectly define what the law considers as child work. Also during this time, the law introduced age thresholds whereby children of a certain age were matched with certain conditions and circumstances of child work.
After the Philippines gained independence from the United States in 1946, the thrust of regulating child work slowly turned to prohibiting children from working. Thus, child work laws became more wide-ranging in their formulation. In 1952, An Act to Regulate the Employment of Women and Children69 was passed. Although this law was not a straightforward blanket prohibition of child work, it was the beginning of a long legal history of minimum age legislation in the Philippines anchored on a framework of prohibition. Softened with some permissive language, this law saw the first statement restricting children of a certain age, i.e. 14, from working in any industry or undertaking. While in the first child labor law of 1923, enacted during the American period, the prohibition was set out only with respect to specific industries, this time the restriction was more all encompassing. Also quite telling was that the language of the law was specifically directed against children themselves. The law provided:
Sec. 1. Employment of children below fourteen years of age. - (a) Children below fourteen years of age may only be employed to perform light work -
(1) which is not harmful to their health or normal development, and (2) which is not such as to prejudice their attendance in school or to benefit from the instruction there given.
(b) No child below fourteen years of age shall be employed or permitted or suffered to work on school days in any shop, factory, commercial, industrial, or agricultural establishment or any other place of labor unless such child knows how to read and write. The fact that a child knows how to read and write shall be evidenced by an educational certificate issued by the principal of the public or private elementary school in the locality where such child resides; but in case the child cannot produce said certificate, the managing employer of the establishment concerned shall conduct an intelligence test to determine whether the child can read or write.70
69 Republic Act No. 679 (1952) An Act to Regulate the Employment of Women and Children, to Provide Penalties for Violation Hereof , and for Other Purposes. 70 Ibid, s. 1.
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As a transition from the framework of regulation to that of prohibition, this law created the impression that not all forms of child work were prohibited. To this end, the law introduced for the first time the concept of “light work”, together with the standards of “health” and “normal development” as the benchmarks for permissible child work. However, quite to the contrary, the introduction of these undefined standards would later be used to justify a pejorative characterization of child work that equated all forms of child work with the harmful concept of “child labor”. This would lead to the subsequent antagonism towards all forms of child work meriting its total abolition.
Most striking in this law was the absence of any intimation of what constituted light work. Instead, it was characterized using even more indeterminate standards. Light work was understood as not harmful either to children’s health or their normal development. Instead of clarifying the concept, such descriptions raised even more questions. Most fundamental was whether harm to the child’s health could be described in terms of physical burden, hours of work, working environment or some other factor. If such were the case then it was not the work per se that was harmful but the conditions surrounding the work. Such questions also raised concerns as to whose standard was to be used in determining whether the work was light or whether it was harmful. Equally problematic was the qualification that the light work must not be harmful to the child’s normal development. Which standard of a normal development was the law referring to? Obviously, the realities of working children – and their development – differ from that of non-working children. Given this, a working child’s development would never be “normal” compared these “other” children and such fact would make any work inevitably harmful.
The second qualification for light work was that it not prejudice attendance in school. The law reflected the belief that work and education were contradictory. Interestingly, this law equated schooling with the ability to read and write. Although there may be some correlation, such a limited view detracts from the real essence of an education. Worse, the law seemed to associate reading and writing with intelligence, rendering certain children vulnerable to exploitation and abuse by giving adults the power to determine a child’s “intelligence.”
Significantly, this law also introduced a category of “work” in which children of any age and
158 under any circumstance were allowed to engage. Because these activities were specifically separated from light work, the implication was that they were under a different category altogether. As will be discussed in the succeeding section, the law did not see these instances as “work” and thus did not merit regulation. These included:
1) domestic work in a family; 2) employment in [an] establishment in which only members of the employer’s family are employed, except employment which is harmful, prejudicial or dangerous under other provisions of this Act; 3) work done [for] vocational, technical, or professional schools, which is essentially of an educative character and is not intended for commercial profit, provided such schools are duly authorized under the law; or 4) employment as gymnast, acrobat, circus or show performer, or in any dancing, theatrical or musical exhibition.71
The 1952 law made very clear assumptions about children and childhood. For the first time, child work was clearly delineated by distinctions between ages. There were three threshold ages in the law: 14 was the minimum employable age while the ages of 16 and 18 merited specific work prohibitions. For example, these two latter age thresholds prohibited the employment of children in undertakings such as mines, shipbuilding, civil engineering works, construction, establishments operating machinery, places of gambling, bars,72 pharmacies and other similar places of labor. As in the first child labor law of 1923 enacted during the American period, the enumeration of prohibited industries implied an inherent and standardized claim of danger for children.
Notwithstanding the move towards a framework of prohibition, this 1952 law nevertheless recognized the reality and necessity of child work for families. While the law set a minimum employable age where children below 14 were allowed to work only in certain circumstances (and 16 and 18-year olds were restricted in their employments), at the same time, the law also recognized an overriding situation where these prohibitions did not apply. An important provision in the law was the exemption from the prohibitory regime granted to any child worker on grounds of economic necessity:
71 Ibid, s. 1(c). 72 This is specifically for women. Ibid, s. 3(a) provides: No woman below eighteen years of age shall be employed or permitted or suffered to work in any bar, night club, or dance hall.
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Sec. 10. Special work permits; rules and regulations. - (a) The Secretary of Labor or his duly authorized representative shall have the power to grant a special permit for the employment of any child whose employment is otherwise prohibited in this Act, whenever in his judgment the economic necessity of the family to which such child belongs requires his assistance for increasing the family income. Such permit shall be issued under such conditions as will not prejudice the compulsory school attendance of any child under the rules and regulations prescribed by the Secretary of Education under section 1 of this Act and as may be necessary for the protection of such child (emphasis added).73
This specific provision was common in child labor legislation in the United States during the 1900s where “poverty permits allowed young children to work if their earnings were necessary for self-support or to assist their widowed mothers or disabled fathers.”74 This exception clearly recognized the necessity of the work of children to their families. Such an exception not only acknowledged that work was indeed a reality for many children but also, more importantly, that their contribution to the family economy was essential.
With the institutionalization of the prohibitory regime against child work, the next two decades, as will be shown below, saw more definitive minimum age legislation articulated in prohibitory language. The prohibitions became broader embracing more settings that were unrecognized in previous laws, including domestic service and street trades. Most significantly, this period also saw child work coming to be considered a specific issue of child protection.
C. THE 1971 AND 1973 AMENDMENTS:
MORE DEFINITIVE MINIMUM AGE LEGISLATION WITH A CLEARER PROHIBITION AGAINST
CHILD WORK
In 1971, a law75 amending the 1952 Act introduced a much more definitive statement of the prohibition against work below a minimum age – the age of 12. Passed approximately 20 years later, this law used explicitly prohibitive language whereby no child below 12 years old was allowed to work. Although there was an exception to the minimum age requirement for work in the home or farm enterprise of the child’s parent or guardian, this law was the first explicit statement that a child of a certain age could not be employed. The prohibition was also very
73 Ibid, s. 10. 74 Zelizer, supra note 6 at 64. 75 Republic Act No. 6237 (1971) An Act Further Amending Republic Act Numbered Six Hundred Seventy-Nine, as Amended by Republic Act Numbered Eleven Hundred Thirty-One (Re: Woman and Child Labor Law).
160 broad as it prohibited work with or without compensation in any setting, including domestic service and street trades making the prohibition all-encompassing. The 1971 amendment provided:
Sec. 1. Employment of children below twelve years of age. — No child below twelve years of age shall be employed or permitted or suffered to work with or without compensation in any shop, factory, commercial, industrial, or agricultural establishment, in any kind of work, including domestic service and street trades; provided, however, that this paragraph shall not apply to work performed outside school hours in the home or farm enterprise of the child’s parent or guardian.76
With the introduction of this minimum age requirement for employment, the previous age thresholds were also changed. Twelve to14 year-olds were restricted to light work; and 15 year olds were subject to prohibitions from employment in certain undertakings. The prohibitions on 16 and 17 year-olds remained the same.
Further amendments were made two years later77 specifically raising the minimum employable age from 12 to 14 and making the prohibitions for the different age thresholds even broader. In addition to raising the minimum employable age, this law also eliminated distinctions such as light work, domestic work, work done in schools, etc. The only exception to the minimum employable age of 14 was for work directly under the sole responsibility of the parent or guardian, involving activities which were not hazardous in nature and which did not in any way interfere with schooling. For children above the minimum employable age, the conditions allowing them to work were quite vague and discretionary: they could be employed in non- hazardous undertakings as determined by the Secretary of Labor. The standards for “non- hazardous” work were not only undefined but also largely dependent on the discretion of an individual, i.e. the Secretary of Labor. The law provided:
Sec. 1. Minimum Employable Age. No child below 14 years of age shall be employed by any employer, except where the child works directly under the sole responsibility of his parent or guardian, involving activities which are not hazardous in nature and which do not in any way interfere with his schooling.
Sec. 2. Age Eligibility for Employment. Any person between 14 and 18 years of age may be employed in any non-hazardous undertaking as determined by the Secretary
76 Ibid, s. 1 77 Presidential Decree No. 148 (1973) Amending Further Certain Sections of Republic Act Numbered Six Hundred Seventy-Nine, as Amended, Commonly Known as the Woman and Child Labor Law.
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of Labor. The employer shall not discriminate against any such person in respect to terms and conditions of employment on account of his age.78
An important development in this 1973 amendment was the express repeal of the original power of the Secretary of Labor to grant exemptions to prohibited employment based on the economic necessity of the family. Clearly indicating a move towards a more stringent prohibition of child work, the removal in the law of this exemption signified that the policy of keeping children away from work could not be overridden by the economic needs of the family.
D. THE 1974 PHILIPPINE LABOR CODE AND CHILD AND YOUTH WELFARE CODE:
CHILD WORK AS AN ISSUE OF BOTH LABOR REGULATION AND CHILD PROTECTION
Significant legal reforms in 1974 saw child work both as an issue of labor regulation and child protection. This further strengthened the framework of prohibition. In 1974, the law on the employment of children was revised once again. This time, the all-embracing Labor Code79 was passed. This law maintained the strategy of imposing a blanket minimum employable age – it was raised to 15 in this law as opposed to 14 in the immediately preceding law. The only exception to this was when the child worked under the sole responsibility of the parents or guardian, provided that such employment did not interfere with schooling. In addition, the standards of “hazardous” and “deleterious” were used to limit the kinds of work that could be done by children between the ages of 15 and 18. As has been a recurring theme in the legal history of child work, the problem with these standards, was that they became even more ambiguous as they were based on a subjective assessment of risk rather than on actual danger or harm, leading to the virtual prohibition of all types of child work. The concern was the open- endedness of the definition of hazardous work as being exposed to “risk” that was “an imminent danger to safety and health.” The provision on the minimum employable age provided:
Art. 139. Minimum employable age.
a) No child below 15 years of age shall be employed, except when he works directly under the sole responsibility of his parents or guardian and his employment does not in any way interfere with his schooling.
78 Ibid, ss. 1 and 2. 79 Presidential Decree No. 442 (1974) A Decree Instituting a Labor Code, Thereby Revising and Consolidating Labor and Social Laws to Afford Protection to Labor, Promote Employment and Human Resources Development and Ensure Industrial Peace Based on Social Justice [Labor Code].
162
b) A person between 15 and 18 years of age may be employed for such number of hours and such periods of the day as determined by the Secretary of Labor and Employment in appropriate regulations. c) The foregoing provisions shall in no case allow the employment of a person below 18 years of age in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labor and Employment.80
For work not to be hazardous, the law defined such circumstance as:
[A]ny work or activity in which the employee is not exposed to any risk which constitutes an imminent danger to his safety and health. The Secretary of Labor and Employment shall from time to time publish a list of hazardous work and activities in which persons 18 years of age and below cannot be employed.81
Immediately after the Labor Code was passed, the Child and Youth Welfare Code of 197482 was enacted into law. This law served as the government’s framework for the promotion of the welfare of children. It codified the rights and responsibilities of children covering the different aspects of the child from the family, to schools, to the community. The section dealing with working children provided:
Article 107. Employment of Children Below Sixteen Years. - Children below sixteen years of age may be employed to perform light work which is not harmful to their safety, health or normal development and which is not prejudicial to their studies.
The provisions of the Labor Code relating to employable age and conditions of employment of children are hereby adopted as part of this Code insofar as not inconsistent herewith.83
With the Labor Code and the Child and Youth Welfare Code both dealing with child work, there was an impression that child work needed even more regulatory protection. Child work was not only a labor issue, as addressed by the Labor Code, but it had also become a child protection concern under the ambit of the Child and Youth Welfare Code thus pushing even further the framework of prohibition.
E. THE 1992 ANTI-CHILD ABUSE LAW:
HINTS OF A NEW DIRECTION IN CHILD LABOR LEGISLATION
80 Ibid, s. 139. 81 Omnibus Rules Implementing the Labor Code (1989) Rules to Implement the Labor Code, Book 3 Rule XII, s. 3. 82 Presidential Decree No. 603 (1974) The Child and Youth Welfare Code. 83 Ibid, art 107.
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Departing from the long history of prohibition, the 1990s briefly saw an opening for the recognition of child work. During this time, the focus of the governing legislation shifted from prohibiting underage employment to ensuring that there were protective measures for working children. This approach was reminiscent of the regulatory nature of the early history of child work laws. This approach was short-lived, however, and the law quickly reverted to its prohibitory strategy. As an added measure, the exceptions to minimum employable age were made even more rigid.
1992 was a very interesting year for child work legislation in the Philippines. Coming on the heels of the UNCRC84, the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act85 or more commonly known as the Anti-Child Abuse Law was passed. This law was one of the main responses of the Philippines to the UNCRC. The provisions on working children in this law were significant in two ostensibly contradictory ways. Although the law reformulated child work as an issue of child abuse thereby evoking protectionism, it nevertheless still took one of the most liberal approaches in dealing with minimum employable age – a marked departure from its predecessors. Consequently, it was both lauded and severely criticized, depending on where one stood.
In its declaration of policies and principles, the Anti-Child Abuse Law stated:
It is hereby declared to be the policy of the State to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development; provide sanctions for their commission and carry out a program for prevention and deterrence of and crisis intervention in situations of child abuse, exploitation and discrimination. The State shall intervene on behalf of the child when the parent, guardian, teacher or person having care or custody of the child fails or is unable to protect the child against abuse, exploitation and discrimination or when such acts against the child are committed by the said parent, guardian, teacher or person having care and custody of the same.86
84 The UNCRC was adopted on November 20, 1989 and entered into force less than a year later on September 2, 1990 in accordance with Article 49. The Philippines signed the UNCRC on January 26, 1990 and was ratified on August 21, 1990. 85 Republic Act No. 7610 (1992) An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation And Discrimination, Providing Penalties for its Violation, and for Other Purposes [Anti-Child Abuse Law]. 86 Ibid, s. 2.
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Under this framework, child labor was easily reformulated as an issue of child abuse.87 The use of the language of abuse and exploitation reinforced the sentiment of antagonism against any type of child work. This gave support to the response of rescue and removal. Camacho writes:
[The law] contains comprehensive provisions for the protection of children in various circumstances of abuse, including the working child. This was the government’s main policy framework for the protection of children in especially difficult circumstances (CEDC)….Other terms were formulated to draw up public support and sympathy. The CEDC’s were considered as ‘children at risk’ or ‘children in crisis’. They were ‘vulnerable children’. They were ‘abused and exploited’.88
On the other hand, however, the Anti-Child Abuse Law included one of the most permissive articulations of a minimum employable age which opened up space for the recognition of child work:
SEC. 12. Employment of Children. - Children below fifteen (15) years of age may be employed: Provided, that, the following minimum requirements are present:
(a) The employer shall secure for the child a work permit from the Department of Labor and Employment; (b) The employer shall ensure the protection, health, safety and morals of the child; (c) The employer shall institute measures to prevent exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and (d) The employer shall formulate and implement a continuous program for training and skill acquisition of the child.
The Department of Labor and Employment shall promulgate rules and regulations necessary for the effective implementation of this section (emphasis added).89
The language used in the law was a striking departure from its predecessors. Specifically, while the Labor Code, and the laws prior to it, set a minimum employable age by using prohibitory language i.e. that no child below 15 shall be employed, the approach under the Anti-Child Abuse Law was permissive – children below 15 “may” be employed. Also, the imposition of conditions to allow for child work below the minimum employable age was not a restriction on children, but rather a responsibility imposed on employers. The implication was that a child of any age
87 The law also dealt with children in prostitution, trafficked children, abused children, children of indigenous cultural communities and children in situations of armed conflict. 88 Camacho, supra note 55 at 19. 89 Anti-Child Abuse Law, supra note 85, s.12.
165 could work with the proviso that if the child was below 15, protective measures had to be in place, such as the requirements on the employer to secure a child permit; ensure the protection, health, safety and morals of the child; institute measures to prevent exploitation; and institute programs for training. Significantly, the formulation of the law signaled that the focus of legislation was not to prohibit underage employment but rather to ensure that there were protective measures for these working children. Implicitly, this meant a recognition of the existence of child work and the law’s sanction of it. The law had become more accommodating and had opened up a space for child work.
F. THE 1993 AMENDMENT TO THE ANTI-CHILD ABUSE LAW:
A QUICK RESPONSE UNDERSCORING THE POLICY AGAINST CHILD WORK
Because of the liberal stance taken by the child work provisions in the Anti-Child Abuse Law, it was interpreted as allowing children to “suffer” from child work. This meant a resounding disapproval from the public and children’s “crusaders”. With these mounting protests, the law was immediately amended a year later, resulting in a return to the previous prohibitory language found in the 1974 Labor Code. To stress the point, this amending law was in fact entitled An Act Prohibiting the Employment of Children Below 15 Years of Age in Public and Private Undertakings, Amending…[the Anti-Child Abuse Law].90 This new law signaled a return to blanket minimum age legislation and restored the restrictions on work for children below the minimum employable age.
In strong reaction against the permissive nature of the previous Anti-Child Abuse Law, this 1993 law sent a clear message that 15 was the minimum employable age. Once again, the main thrust of the law was to direct its attention towards the prohibition of child work. Moreover, the exceptions to minimum employable age were made even stricter than the 1974 Labor Code. Employment below 15 years of age was only allowed when it was directly under the sole responsibility of the parents and where only members of the employer’s family were employed. This latter condition was not present in the 1974 Labor Code. The new law also required that the employment of a child below 15 neither endanger the life, safety, health and morals of said child
90 Republic Act No. 7659 (1993) An Act Prohibiting the Employment of Children Below 15 Years of Age in Public and Private Undertakings, Amending for This Purpose Section 12, Article VIII of R.A. 7610.
166 nor impair the child’s normal development. Further, the parent of such working child was required to provide the prescribed primary and/or secondary education. These conditions effectively combined the restrictions both in the Labor Code and the Child and Youth Welfare Code into one law. The law provided:
Sec. 12. Employment of Children. – Children below fifteen (15) years of age shall not be employed except:
(1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer’s family are employed: Provided, however, That his employment neither endangers his life, safety, health and morals, nor impairs his normal development: Provided, further, That the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education;91
In accordance with this law, the Department of Labor and Employment issued its guidelines on work for persons below 18 years of age.92 As expected, this directive dealt with child work identified as hazardous and deleterious basing such characterizations on the law’s standards of endangering the child’s life, safety, health, morals and normal development. This meant that efforts were focused on ensuring that children were kept away from work lest they fall victim to child labor.
G. THE 2003 LAW ON THE ELIMINATION OF THE WORST FORMS OF CHILD LABOR:
PRIORITIZATION OR REDUNDANCY
The current law governing child work in the Philippines attempts to combine two strategies that the international community has grappled with: prohibition of child work through minimum age legislation and the elimination of the worst forms of child labor. The last ten years of the 20th century were characterized by strong influences from the UNCRC. In its formulation of child work, the UNCRC was deeply rooted in a rights framework. Article 32 provides:
1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child’s health or physical,
91 Ibid, s. 1. 92 Department Order No. 04 Series of 1999 (1999) Hazardous Work and Activities to Persons Below 18 Years of Age.
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mental, spiritual, moral or social development.93
The declaration that the child is to be protected from any work that is likely to be hazardous or harmful implies that not all kinds of work are necessarily exploitative.94 Cullen agrees that the UNCRC “implicitly distinguishes between benign (permissible) and harmful (impermissible) child work.”95 This thinking clearly influenced the ILO to re-examine its approach to child labor. In 1973, the ILO, through its Minimum Age Convention was focused on a framework of prohibition against child work. It pushed for the progressive raising of the minimum age for admission to work. Although there was considerable optimism in the beginning, this strategy was later seen as “naïve”.96 There was a growing consensus that it was impossible or at least unrealistic to try to ban all instances of child work.97 Instead, the ILO through its Worst Forms of Child Labour Convention, 1999 called on its member-states to “take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency (emphasis added).”98
At the international level, there was a movement away from minimum employable age legislation and a new focus on addressing the most abusive and harmful types of child work. That was precisely the approach of the ILO with its jump from the Minimum Age Convention, 1973 to the Worst Forms of Child Labour Convention, 1999: prioritize the abolition of the more universally condemned practices of child labor rather than attempt to abolish all forms of child employment which was the objective of minimum age legislation. In contrast however, the Philippines attempts to do both: continue with the approach of setting a minimum employable age and at the same time eliminate the worst forms of child labor. It does this through its Act Providing for the Elimination of the Worst Forms of Child Labor and Affording Stronger Protection for the Working Child99 passed three years after ratifying the Worst Forms of Child Labour Convention in 2000.
93 UNCRC, supra note 49, art. 32(1). 94 Detrick, supra note 15. 95 Cullen, supra note 12 at 93. 96 Cunningham and Stromquist, supra note 31 at 73. 97 Cullen, supra note 12 at 93. 98 Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (entered into force 19 November 2000) [C182 ILO Worst Forms of Child Labour Convention, 1999], art. 1. 99 Republic Act No. 9231 (2003) An Act Providing for the Elimination of the Worst Forms of Child Labor and Affording Stronger Protection for the Working Child, Amending for This Purpose Republic Act No. 7610, As Amended, Otherwise Known as the “Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act”.
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The problem with the Philippine approach embodied in this 2003 law is conflation. Unfortunately, the law does not seem to distinguish between child work in general and its worst forms. As can easily be seen, unlike the international movement that prioritizes the elimination of the worst forms of child labor through its specific targeting of these forms of child labor, the current Philippine law merely adds the elimination of worst forms of child labor to the already existing framework of the general prohibition of child work embodied in its amended Anti-Child Abuse law. Thus, this 2003 act was passed not as a separate law specifically targeting the worst forms of child labor but merely as an addition to the current articulation of the Anti-Child Abuse law. This meant that the elimination of the worst forms of child labor was an additional protection that the state had to provide for children aside from the special protection already undertaken from “conditions prejudicial to their development including child labor.”100 Looking at the ILO Convention, precisely because it shifts its focus on the elimination of the worst forms of child labor, there is no mention of the minimum employable age. However, in the Philippine law, the elimination of the worst forms of child labor is simply attached to its already existing prohibitions on child work in general that still includes minimum employable age among others. It does not actually shift the focus to the worst forms of child labor rather, it sees this as an additional agenda to its prohibition of child labor.
The conflation becomes even more apparent as there is an overlap of definitions. Child labor refers to “any work or economic activity performed by a child that subjects him/her to any form of exploitation or is harmful to his/her health and safety or physical, mental or psychosocial development”101 whereas the worst forms of child labor are:
1) All forms of slavery, as defined under the ‘Anti-trafficking in Persons Act of 2003’, or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict; or
2) The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances; or
3) The use, procuring or offering of a child for illegal or illicit activities, including
100 Ibid, s. 1. 101 Department Order No. 65-04 (2004) Rules and Regulations Implementing Republic Act No. 9231 Amending R.A. 7610, as amended, s. 3(b).
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the production and trafficking of dangerous drugs and volatile substances prohibited under existing laws; or
4) Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children, such that it:
a) Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or b) Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically or may prejudice morals; or c) Is performed underground, underwater or at dangerous heights; or d) Involves the use of dangerous machinery, equipment and tools such as power- driven or explosive power-actuated tools; or e) Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which requires the manual transport of heavy loads; or f) Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious components and the like, or to extreme temperatures, noise levels, or vibrations; or g) Is performed under particularly difficult conditions; or h) Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes and other parasites; or i) Involves the manufacture or handling of explosives and other pyrotechnic products (emphasis added).102
The question is whether the law actually targets the worst forms of child labor. More fundamental is the question of how different are the worst forms of child labor from child labor in general or from any other form of child work for that matter. Based on the definition, the worst forms of child labor include work that is hazardous or likely to be harmful to the health, safety or morals of children, which is how the law has consistently defined child labor in general (that is not the worst form). Because the law continues to use the same less than objective standards of harm, safety, morals and normal development that it has consistently used in its long history to justify its framework of prohibiting child work, there is now no substantial difference between the worst forms of child labor and the already prohibited and highly regulated (not worst-)child labor. The same standards used to justify the prohibition of child work in the past are the same standards used to address the worst forms of child labor. At best, what a “worst forms of child labor” articulation achieves is simply a reiteration of the characterization of child labor as repulsive that merits the law’s disapproval.
102 Republic Act No. 9231, supra note 99, s. 12-D.
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Equally worth highlighting is the fact that even after almost a century of prohibiting child work through minimum age legislation, the phenomenon of child work still persists. The irony is that the most visible child workers have been so commonplace that they have in fact, been rendered invisible.103 At the same time, the rest of the working children, considered the majority, who are workers in rural areas in household-operated or small farms/businesses remain undetected by state scrutiny.104 In fact, this was the primary motivation for the international community to move away from minimum age legislation. Because this strategy was not producing the results it intended, the ILO refocused its efforts towards a more realistic objective of targeting the worst forms of child labor. However, despite such realization, the current Philippine law chooses to merely add the elimination of the worst forms of child labor to its existing agenda of prohibiting child work. Such merging of objectives not only takes away the focus from a more realistic goal but also strains resources jeopardizing efforts to reach those in the worst forms of child labor. Thus, a recent study on child labor suggested that hazards present in a particular form of child work must be carefully examined whether they are the results of general poverty, child work in general or specific forms child labor.105 The observation in that study is telling:
In the meantime, the government can ill-afford to use up society’s limited resources on poorly designed programs to eliminate child labor. This brings up the importance of tracing the negative consequences of child labor to specific activities, work environments, or even particular forms of child work. Such information can form the basis for alternative courses of action to deal with child labor.106
III. CHILD WORK LAWS AND POLICIES:
A DOMINANT CONSTRUCTION OF CHILDREN AND CHILDHOOD
An examination of the legislative history of child work reveals that laws and policies have been significantly influenced by the dominant paradigm of children and childhood. This has impacted
103 James, Jenks and Prout, supra note 10 at 109. See e.g. Catherine Scerri, Sagip or Huli?: Rescue of Street Children in Caloocan, Manila, Pasay and Quezon City (Manila: Bahay Tuluyan and UNICEF Philippines, 2009). See also the discussion in the succeeding Chapter on Youth Justice that looks at how the State has used the criminal justice system (e.g. law on vagrancy) to respond to working children on the streets. 104 See 2001 Philippine Survey, supra note 7. 105 Emmanuel Esguerra, “An Analysis of the Causes and Consequences of Child Labor in the Philippines” online: International Labor Organization: ILO-IPEC
171 the legal response to child work. By prescribing conditions and circumstances of child work, law and policy define children’s capacities and vulnerabilities in a very specific manner. Likewise, the legal system insists on certain expectations and outcomes from children. Deviations from this norm are met with the appropriate response embodied in the universal agenda of rescuing children as objects of protection.
From the long history of laws and policies governing child work in the Philippines, there has been a lack of a definitional clarity of work for children – and correspondingly, permissible and prohibited work. Attempts to define child work have raised concerns for being biased, restrictive and unrealistic. These definitions of work have been largely influenced by dominant paradigms of children and children. They rely on age, contributions to the national economy, adult standards of output or productivity and other similar parameters. Yet they do not take into account the most basic fact that child work is done by children. Not only are these definitions imprecise representations of the real lives of children but more importantly, they ignore the child, who is the subject of the definition in the first place. Equally problematic is the adult undertaking of defining work by distinguishing between acceptable and prohibited child work. The exercise of dividing work into seemingly clear-cut categories makes it appear that such distinctions are objective standards rather than conscious – or at times instinctive – decisions that reflect certain interests and assumptions. In fact, the creation of such labels as “children in productive activities”, “light work”, “child labor”, “harmful work” and other such terms to distinguish between acceptable and prohibited child work have created the impression that child work easily fits into either permissible or prohibited work. In reality, each expression is used with the intention of conveying a certain signification that evokes a specific response from law and policy.
Child work laws in the Philippines have been operating under the framework of prohibition of work for children as evidenced by its consistent use of minimum age legislation. Under this approach, prohibition of child work is the norm while permissible child work is an exception. To this end, laws have relied heavily on the twin standards of age and harm – as if these were straightforward and purely objective – to rationalize this prohibitory framework. The focus on prohibiting age-inappropriate and harmful work for children has in fact transformed the language of child work to the morally reprehensible “child labor”. Yet the legal history of child
172 work shows that the standard of age has constantly changed with each law while harm has been understood in a multitude of ways. This legislative history not only shows the changing assumptions, interests and agendas involved in regulating child work but also confirms a socially constructed childhood heavily influenced by the dominant paradigms. As pointed out by researchers, definitions and evaluations of children’s work “[imply] certain prior decisions and [reflect] certain interests…[they] also [include] as a rule culture specific assumptions.”107 This section examines those decisions, interests and assumptions that shape child work legislation in the Philippines.
A. AGE IS A DEFINITIONAL MARKER
The most fundamental decision embodied in child work laws is the use of age as a definitional marker. Whether the law prescribes a minimum employable age or determines the specific ages for particular industries or tasks, age is decidedly the key determinant of what children can or cannot do – or more precisely what children are allowed or not allowed to do. The legislative history of child work in the Philippines clearly demonstrates this determination. Age has been at the center of child work regulations. The legal system has no difficulty countenancing child work laws that do not even provide a definition of what constitutes work so long as they establish the age for regulation. Age provides a most straightforward measure that establishes uniformity and facilitates monitoring and enforcement.
The law assumes that since age is a fixed characteristic, it necessarily translates into a normative concept. In this sense, age is used in child work legislation to quantify competence. So when the law utilizes a certain age as the basis for its regulation (say, minimum employable age), that decision is implicitly based on the assumed competency – or lack thereof – of the child at that specific age. This is believed to be effective because of the assumption that children follow a universal pattern of development; that every child neatly fits into an established structure of childhood where he/she goes through the same predictable “stages”. Such consistency provides the legal system with the ability to adopt a uniform and effective response i.e. “age-appropriate” labor laws. This clearly ignores the highly contextualized realities of children’s lives. As Boyden et al. warn:
107 Liebel, supra note 33 at 46.
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Clearly children are raised in different ways and with different expectations in different parts of the world. They thrive, and indeed flourish, in widely contrasting conditions and circumstances and have different capacities and needs, to which a universal child development model – which is based on only one type of childhood – is not sensitive.108
The use of age as an indicator cannot be more evident than in minimum age legislation. The minimum employable age has changed a number of times ranging from the lowest age of 12 in 1971109 (increased to 14 two years later110) to the current age of 15111 originally adopted in 1974.112 Whether the language used is permissive or prohibitory, a minimum age for employment assumes that work is not the “proper place” for children and that the law should keep children out of this world. Furthermore, the setting of a minimum age for work assumes that childhood is and can be defined, and uniformly at that, based on age.
Internationally, minimum age legislation has been recognized in the various ILO minimum age conventions culminating in the Minimum Age Convention, 1973113 which the Philippines ratified in 1998. The approach of that Convention, as with other minimum age legislation, is to decree that children below a certain age should not be in work and that their employment should, in fact, be prohibited. Although the Convention prescribes 15 years old as the minimum employable age, it also enjoins states to progressively raise that age. The first article of the Convention is most telling as it is based on an approach of abolishing all child labor by progressively raising the minimum age for employment. The policy not only promotes but also imposes an idealized version of childhood. As Boyden et al. argue:
The minimum age standard expresses an ideal of childhood as a privileged phase of life properly dedicated only to play and schooling, and with an extended period of dependence during which economic activity is discouraged or actually denied.114
Cullen critiques the minimum age legislation approach thus:
108 Boyden, et al., supra note 32 at 39. 109 Republic Act No. 6237, supra note 75, s. 1. 110 Presidential Decree No. 148, supra note 77, s. 1. 111 Republic Act No. 9231, supra note 99, s. 2. 112 Labor Code, supra note 79, art. 139. 113 C138 Minimum Age Convention, supra note 22. 114 Boyden, et al., supra note 32 at 195.
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Unrealistic rules on minimum age can have the effect of driving child work underground, where employers conceal the use of the underaged and the conditions under which they work. Moreover, precisely because minimum age conventions focus on preventing the employment of underage workers, they naturally do not encourage states to adopt protective legislation (minimum wage, health, and safety) on behalf of such workers, as adopting protective rules for working children acknowledges their existence.115
B. ALL CHILD WORK IS “CHILD LABOR”
A review of the laws and policies governing child work reveals that the phenomenon has persistently been described in terms of the harmful and damaging effects it has on children and childhood. Child work then became articulated in a value-laden language – that of the morally reprehensible “child labor”. The association of child work with harm and abuse that led to its conflation with child labor is the result of almost a century of a prohibitory legal approach to child work. In its early legal history, child work was merely regulated which allowed for an open recognition of children in work. However, with the introduction of explicitly prohibitive language in child work laws, work became a forbidden context for children. Any child who entered the work force was at risk and needed to be removed from that situation. This even led child work to be an issue of child abuse and protection.
The introduction of standards that attempted to distinguish child labor and other forms of child work, in fact, accomplished the contrary. The introduction of undefined standards such as harm, health, morals, normal development and the like have been used to justify a pejorative characterization of child work that equated all forms of child work with child labor. This has led to the subsequent antagonism towards all forms of child work meriting its total abolition. Because these standards were undefined and subjective, the question really has been: in what context has the law used these standards? Throughout its legislative history, child work laws have understood these standards based on a specific nature of the child – a protected, healthy, moral and normal child – treading a precise path of development. The childhood used as the ideal represents the dominant paradigm. Thus, working children are bound to fail to measure up to the standard that was not devised for them in the first place. A childhood maintaining work and economic participation goes against the norm of a happy, innocent and protected childhood
115 Cullen, supra note 12 at 90-91.
175 characterized by affection and education. So the response is that instinctively a working child is in a harmful situation and needs to be removed from work and “returned” to a normal childhood. Thus, James, Jenks and Prout write:
By making the distinction between work and labour turn on moral judgments about what promotes healthy development for children, writings on child labour often fail to make specific distinctions between different forms of labour.116
The Philippines has, in fact, opened up the official definition of child labor to an expansive characterization as “work that deprives [children] of their childhood, their potential and their dignity.”117 Such an understanding in effect, subsumes all types of child work. Treating all child work as “child labor” is further bolstered by the state view that “all working children are basically at risk: the ultimate objective of society should therefore be the elimination of child labour.”118 Instead of looking at the actual conditions and circumstances of each type of work for children, the state merely relies on the standard of an idealized child and childhood. Such ideal is a social construction based on organic, romantic and utilitarian views of children and childhood. Because childhood has been constructed as a time solely for innocence, dependency, play and schooling, any type of work for the child goes against the order of nature. Simply put, child work is a violation of childhood and that in itself brings harm to the child.
As a result of the conflation, a child working in a safe environment is considered to be as much in need of “rescue” as a child in an exploitative work situation simply because both are in the world of work. The rhetoric of child abuse has further aggravated the situation. The definition of child abuse uses the same standard of harm as work laws, implying that child work necessarily entails child abuse. The state has thus come to see every instance of child work as child abuse – whether actual or potential. This subjects working children to more policing, which ironically now makes them vulnerable targets of abuse and exploitation.119
C. PERMISSIBLE CHILD WORK IS NOT WORK
116 James, Jenks and Prout, supra note 10 at 110. 117 Bureau of Women and Young Workers, Philippine Program Against Child Labor Plan of Action 2008-2010 at 7. 118 International Labor Organization-International Programme for the Elimination of Child Labour (ILO-IPEC), Attacking Child Labour in the Philippines: An Indicative Framework for Philippine-ILO Action based on the National Planning Workshop on Child Labour held in Manila from July 26 to 29, 1994 at 4. 119 See e.g. Scerri, supra note 103.
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As observed earlier, the legislative history of child work has shown that work has never really been defined. Instead, the law jumps into categorizing child work as either permissible or prohibited. The law does this by providing for permissible child work articulated as an exception to the general framework of prohibiting child work. So it would seem that the law does allow for some forms of child work. However, upon closer scrutiny, these exceptions are indeed permissible but the issue is whether they are considered work. In evaluating these “activities”, the law relies heavily once again on the dominant constructions of children and childhood. Consistent with the belief that work is inconsistent with children and childhood, permissible work then is construed as non-work. With this, the law is able to address a range of children’s activities that exist but which do not fit within its construction of child labor.
1. WORK UNDER THE SOLE RESPONSIBILITY OF THE PARENTS
Consistently present in the history of child work laws has been the qualifier that children of any age, even those below the minimum employable age, may perform “work” in the parental home or farm or under the sole responsibility of the parent or guardian. The most fundamental of this type of work is domestic work, which is expressly excluded as non-work under laws and policies.
Statistical data, which has been the primary impetus for child work policy, expressly excludes domestic work as an identifier of the working child. In the comprehensive 2001 Survey on Children 5-17 Years Old (2001 Philippine Survey)120 conducted by the National Statistics Office (NSO) in collaboration with the International Labor Organization-International Programme on the Elimination of Child Labour (ILO-IPEC), working Filipino children are counted as the 4 million 5 to 17 year-olds engaged in an economic activity.121 Economic activity expressly excludes household work – referred to as “housekeeping” in the survey. Housekeeping is defined as:
…non-economic activities done at home such as cleaning and maintaining dwelling units including small repair, preparing and serving meals, caring for the sick, infirm and old people. No payment or remuneration is received for doing any of these
120 2001 Philippine Survey, supra note 7. 121 Ibid at 23.
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activities. If a child receives any payment, that person is considered as working.122
From this definition, the exclusion of housekeeping from work is not because of the work itself but rather because it is unpaid. If the child were to do the same work in the same situation but with payment, it then becomes an economic activity. But more than the issue of being unpaid, domestic work – done mostly by girls – within their own family is excluded as work because it is regarded simply as “assisting” without any economic value. This type of activity is seen as having no economic consequence, being unpaid and done by children within their own family. It is relegated to the category of mere “help” which does not warrant official recognition.123 Such a view fails to consider the fact that parents are able to perform paid employment outside of the household because of this unrecognized work by children making it essential to the family economy. The work is trivialized not only because it is unpaid, but more importantly, because it is done by children – and girls at that. So a child doing an hour of economic activity and 5 to 6 hours of housework is considered working for only an hour.
Ironically, despite the exclusion of household work from economic activities, the 2001 Philippine Survey still prominently looks at housekeeping activities by children as part of the economic characteristic of working children.124 In its characterization of the working child, the survey looks at how these children combine work with three specific activities: schooling, looking for work and housekeeping. More telling, in analyzing the “other activities of working children,”125 the survey looks at two specific activities of working children relevant to their being considered as working children: 1) their secondary occupation;126 and 2) their housekeeping activity.127 The survey, in fact, reveals that almost 91.5% or 3.7 million of all 5 to17 year old working children performed housekeeping activities,128 some even going beyond 10 hours every week.129 This importance given to housekeeping activities of children seems paradoxical given that it is excluded from economic activities in the first place. This
122 Ibid at 7. 123 Similarly, there is a whole discourse about domestic work within one’s home traditionally considered (adult-) female tasks not being classified as work at all simply because they are seen as a necessary consequence of being a woman. See e.g. Anne Statham, et al., eds, The Worth of Women’s Work: A Qualitative Synthesis (Albany: State University of New York Press, 1988). 124 2001 Philippine Survey, supra note 7 at 28. 125 Ibid at 65. 126 Ibid at 66. 127 Ibid at 72. 128 Ibid. 129 Ibid at 73.
178 highlighting of housekeeping activities of children is an implicit recognition that removing domestic work from the definition of child work is far more complicated than imagined.
If we were to use household work as a child labor indicator, as done for example in the Philippines Child Labour Data Country Brief,130 it would become apparent that children in the Philippines are introduced early into the world of work. Female children, for example, are expected from a very young age to do chores such as taking care of their siblings, cleaning the house, washing the dishes and cooking rice.131 As early as age seven, girls act as mother substitutes.132 Boys, on the other hand, do the work done by their fathers.133 Sons of fishermen assist by running the motor, paddling, repairing agricultural implements or mending fish gear.134 As children grow into puberty, their tasks increase with an emphasis on division of labor.135 Jocano observes:
In the farm, the girls do light tasks like planting and harvesting; the boys do the heavier ones like plowing, harrowing, and hauling. Occasionally, the girls may tend to the carabaos, goats, and cows, but the greater part of their work schedule is at home cooking, taking care of their siblings, feeding the chickens and pigs, and laundering the clothes. The men fetch water and chop firewood, but women do these tasks also when work schedules in the field are tight.136
Even if domestic work were not to be explicitly excluded as “work”, it would still be characterized as “work that is part of the child’s socialization.”137 Camacho writes: “These are work activities that are usually done in the home under the parents’ supervision and largely considered as beneficial to the child’s development.”138 From a regulation point of view, these activities will come under the label of “work done in the home” or “work under the sole responsibility of the parent.” Not only do these activities perform an important socializing role,
130 International Programme on the Elimination of Child Labour, Philippines Child Labour Data Country Brief (Geneva: International Labor Office, 2008). 131 Elizabeth Protacio, et al., Trust and Power: Child Abuse in the Eyes of the Child and the Parent (Manila: Save the Children UK and the United Nations Children’s Fund, 2001). 132 Ma. Emma Concepcion Liwag, et al., How We Raise our Daughters and Sons: Child-Rearing and Gender Socialization in the Philippines (Manila: UNICEF/Ateneo Wellness Center, 1999). 133 Del Rosario and Bonga, supra note 58. 134 Liwag, et al., supra note 132. 135 These gender- and age-based divisions of labor are borne out by statistical data. Girls are more likely than boys to participate in household chores just as older children are likely to do more of these chores. International Programme on the Elimination of Child Labour, supra note 130. 136 Felipe Landa Jocano, Filipino Social Organization: Traditional Kinship and Family Organization (Metro Manila, Philippines: Punlad Research House, 1998) at 129. 137 Camacho, supra note 55 at 15. 138 Ibid.
179 but they also validate dominant constructions of children and childhood. The home, together with the school, is “prescriptively where [children] should be located.”139 “Working” with one’s parents in the home is what a “normal” childhood entails. Through these activities, the child is prepared for adult responsibilities. This is consistent with the understanding that a child does not become an adult until he/she is taught or trained to become one. Childhood is therefore a preparation for adulthood; teaching children through these “non-work” activities shapes them to become “proper” adults.
2. LIGHT WORK
Closely linked to work under parental supervision is the concept of light work. At certain points the law has allowed children below a certain age to perform only light work. Although not present in the current law, the concept of light work first appeared in the 1952 law140 and was retained in the 1971 law.141 The ILO Minimum Age Convention, 1973 treats light work as an exception to the minimum employable age.142 Although never defined, light work demonstrated a particular characterization not only of children’s capacities (or their lack thereof), but of their contributions as well. In allowing only light work for children in certain instances, the law assumed that children were in fact only capable of doing “work” to that extent. Such work was viewed as less than what a “fully functioning member of society”143 could accomplish. These activities could not be valued as work because children were incomplete individuals who still needed protection and guidance. The category of light work afforded children protection from being “burdened” with adult responsibilities and at the same time provided them with the gradual process of being introduced into the “real” world.
139 Rosalind Edwards, “Introduction: Conceptualising Relationships Between and Home and School in Children’s Lives” in Rosalind Edwards, ed, Children, Home and School: Regulation, Autonomy or Connection? (London: RoutledgeFalmer, 2002) at 4. 140 Republic Act No. 679, supra note 69. 141 Republic Act No. 6237, supra note 75. 142 C138 Minimum Age Convention, supra note 22, art. 7 provides: 1. National laws or regulations may permit the employment or work of persons 13 to 15 years of age on light work which is-- (a) not likely to be harmful to their health or development; and (b) not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the competent authority or their capacity to benefit from the instruction received. 143 Camacho, supra note 55 at 14.
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3. “PRIVILEGED” WORK
As described by Liebel, an important development in the phenomenon of working children was the emergence of children in the media:
The vigorous expansion in the media and advertising market has brought about many very attractive new working opportunities for children. They range from participation in public performances within a show-business and media context to the designing of their own websites.
Many of these jobs are attractive, because they offer relatively high chances for earning money, but also because they are accompanied by public attention and correspond to narcissistic desires. Working on radio, in television or even in film is seen as a privileged activity by children. The expectations of lucrative payment are in this regard particularly attractive, as is a popularity which is accompanied by high regard and an improvement in the social standing (of the child and its parents) among one’s contemporaries. Another factor which cannot be disregarded is the parents’ pride in their offspring.144
More fascinating than the growth of this industry is the privilege accorded to it by child labor laws. Beginning in 1993, Philippine law explicitly recognized and “allowed” these types of activities. In the current 2003 child labor law, this particular type of “work” is an exception to the minimum employable age regulation. Particularly, the law allows children below 15 years of age to work in public entertainment or the media as follows:
Sec. 12. Employment of Children. – Children below fifteen (15) years of age shall not be employed except:
x x x
2) Where a child’s employment or participation in public entertainment or information through cinema, theater, radio or television or other forms of media is essential: Provided, That the employment contract is concluded by the child’s parents or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: and Provided, further, That the following requirements in all instances are strictly complied with:
(a) The employer shall ensure the protection, health, safety, morals and normal development of the child;
144 Manfred Liebel, “Between Prohibition and Praise: Some Hidden Aspects of Children’s Work in Affluent Societies” in Beatrice Hungerland, et al, eds, Working to Be Someone Child Focused Research and Practice with Working Children (London: Jessica Kingsley Publishers, 2007) at 124.
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(b) The employer shall institute measures to prevent the child’s exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and (c) The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child.
In the above-exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements.145
A number of reasons have been proffered to justify the privileged position accorded to child media work. Some of these justifications are economic, while others are sentimental. Whatever the reason, these activities are not seen as work – consistent with the law’s disapproval of child work. It is precisely because of the privilege given to child media work that the law does not consider it as work. Liebel asserts that this type of work is “accompanied with prestige, fame, relatively high earnings and the promise of a ‘career’…also…it creates in children the impression that they belong to the ‘chosen ones.’”146 This characterization removes it from the ambit of morally repugnant child labor. As well, these activities can also be considered a form of light work. Requiring only a few moments of mental effort, such activities are similar to children’s play.147
More importantly, these children are paid to be children. In this kind of work, what the law sees is not the working child but what the child represents. The charm, purity and innocence of these representations – all evocative of the ideals of childhood – mask the fact that the child is working. Consequently, the child is just being a child. Zelizer illustrates how children working in public entertainment have been sentimentalized, specifically in American history:
…the sentimental dramas of the day ‘worked to their highest pitch by the introduction of a tender infant, or a docile child. In the twentieth century, theatre enthusiasts raved about the ‘child-value’ in plays, ‘the emanation of the spirit of childhood; an emanation that only a little child can convincingly give forth….’ ‘[F]or except as you are a little child, you shall not enter the kingdom of happiness….’ [T]he charm of the child on the stage is its childishness….’ ‘[T]hese
145 Republic Act No. 9231, supra note 99, s. 2. 146 Liebel, supra note 144 at 125. 147 Zelizer, supra note 6 at 92-93.
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little folk of the theatre assures you that they belong as much to the land of dolls and tin soldiers as to the realm of limelight and rouge’.148
D. ADULTS KNOW BEST
Implicit in all of the child labor laws and policies is that adults are empowered to act on children’s behalf in order to protect them and their best interests. A clear demonstration of this is the articulation of what constitutes work and the characterization of permissible and prohibited work. As discussed earlier, understandings of work rely heavily on adult standards such as age, contributions to the national economy, output or productivity and other similar parameters. As well, adults are the ones to gauge and assess the harm brought by child labor to children and their childhood. Verhellen, for example, talks about adult control through the concept of “adulto-centricity”.149 According to her, “adults keep using their power to make their definitions dominant by oppressing the child’s meaning-making capacities or at least by considering them as inferior.”150 Thus, harm is made to appear as an objective standard in examining child work but in reality is an adult imposition based on its agenda of prohibiting child work.
Consider the following observations of the participants in the National Planning Workshop on Child Labour:
Today, however, we also find hundreds of thousands of Filipino children being deprived of the opportunity to share in the prospects of development. The door of opportunity is closed on them because their childhood is wasted on premature work rather than nurtured in school and at play. Deprived of an opportunity for education and of appropriate social, cultural, physical and psychological development, their capacity to contribute to society as adults is seriously being jeopardized (emphasis added).151
These adult opinions not only marginalize children’s realities but, more importantly, deny their lived experiences. Most striking in this perspective is the notion that work simply “wastes” a child’s childhood and that such activity is of no value in contributing to society. The law needs
148 Ibid at 95. 149 Eugeen Verhellen, “Children and Participation Rights” in Pia-Liisa Heilio, Erja Lauronen and Marjatta Bardy, eds, Politics of Childhood and Children at Risk: Provision Protection Participation (Vienna: European Centre for Social Welfare Policy and Research, 1993) at 50. 150 Ibid. 151 Bureau of Women and Young Workers, supra note 117 at foreword.
183 to protect children from work because of their potential to become economically productive adults. The current worth of the child’s work is simply disregarded and made invisible.
The right to protection is a clearly recognized right of children. The UNCRC, most prominently, establishes the standard to be used in all actions concerning children: the best interests of the child.152 This is not to suggest, however, that applying these standards is straightforward. Lansdown explains:
The conventional view of protection has been a one-way process, with adults as agents and children as recipients. What is now needed is a more sophisticated approach, in which it is understood as a dynamic process in which adults take responsibility for keeping children safe by listening to and respecting their perspectives, while empowering them to contribute towards their own protection.153
The insistence on adult standards is clearly related to the idea of childhood as a period of dependency that is part of the dominant paradigm. As dependents, children need adults to protect them and make decisions for them. In the discourse of child work, the imposition of adultist standards based on a view of children as dependent has resulted in laws that focus on removing children from the world of work. Since children are cast as weak and vulnerable members of our society, it is not surprising that they are made invisible. As Oakley observes:
[their] welfare…[is] based not on asking them what they want or need, but on what other people consider to be the case. It is a philosophy of exclusion and control dressed up as protection, and dependent on the notion that those who are protected must be so because they are deemed incapable of looking after themselves.154
IV. REFORMULATING CHILD WORK LEGISLATION:
CHILDREN AND PARTICIPATION
An approach to child work that rests exclusively on a prohibitory regime is not only simplistic
152 UNCRC, supra note 49, art. 3(1) provides: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 153 Gerison Lansdown, “International Developments in Children’s Participation: Lessons and Challenges” in E. Kay Tisdall et al., eds, Children, Young People and Social Exclusion Participation for What? (Great Britain: The Policy Press, 2006) at 149. 154 Ann Oakley, “Women and Children First and Last: Parallels and Differences between Children’s and Women’s Studies” in Berry Mayall, ed, Children’s Childhoods Observed and Experienced (London: The Falmer Press, 1994) at 16.
184 but also shortsighted. Such an approach fails to recognize the context within which child work exists e.g. families live in poverty and face severe constraints. In the 2000 Family Income and Expenditure Survey of the National Statistics Office (NSO),155 the number of poor families in the Philippines had reached 5.1 million.156 This means, as suggested by one researcher, “action against child labor should, therefore, concentrate on understanding the constraints faced by families and removing them.”157 Within these families is a child who lives that reality and is able to construct an understanding of their circumstances.
This perceptive child is at the core of the emerging paradigm. The starting point of such paradigm is the recognition of children and their participation i.e. their rights, realities and relationships. Since much of the legal and policy frameworks on child work have depended on an idealized construction of children and childhood, it is unsurprising that children have been pushed to the periphery – treated either as deviants or victims. When the legal system accepts in toto a child work framework that is exclusively based on a dominant paradigm of children and childhood, not only are working children denied their voice but more importantly, they are denied their identities.
The significance of an emerging paradigm primarily lies in broadening our understanding of children and their lives. Such an understanding will be the basis of child work laws and policies that are more responsive to the needs of children and more relevant to their lives. So the question is: in reformulating laws and policies on child work, who is the child and what reality does the child live?
A. AN EQUALLY “REAL” CHILDHOOD
As has been emphasized throughout this chapter, child work laws in the Philippines have operated under a framework of prohibiting children from work. This is fundamentally based on a “work-deprives-childhood” argument. The rationale is that children do not belong in the world of work. The childhood that the law endorses is clearly a work-free period where children are
155 National Statistics Office, “2000 Family Income and Expenditure Survey (FIES) Final Release on Poverty” online: National Statistics Office: NSO
185 neither unfairly burdened by economic responsibilities nor endangered and corrupted by the hazards of the workplace.158 This is based on the dominant construction of childhood. But as the emerging paradigm broadens our understandings of childhood, we are able to appreciate the diversity of childhoods. There is the childhood based on the reality that children, in fact, are working. The 2001 Philippine Survey revealed that of the almost 25 million 5 to 17 year-olds in the Philippines, almost 20% or about 4 million were engaged in an economic activity.159 Some of these children even held two occupations.160 These children worked as laborers; service, shop or sales attendants; or farmers and fishermen. They could be found in various industries, with 58.5% of them in agriculture, 31.7% in the service sector (including retail, transportation, hotels and restaurants and domestic work) and the rest in mining, manufacturing, construction and other similar industries.161 This means that work is a reality in the childhood of millions of children. An idealized norm of childhood will not make this childhood any less real nor will it take away the actual experiences of these children. Using the “work-free” childhood to measure the diverse realities of children creates what Minow calls exclusion.162 She explains: “shifting perspectives exposes how a ‘difference’ depends on a relationship, a comparison drawn between people with reference to a norm. And making this reference point explicit opens up the debate.”163
B. A CAPABLE AND PERCEPTIVE CHILD
An argument espoused by the dominant paradigm used in justifying the prohibition of child work is the child’s lack of capacity. Child work laws purport to use age as an accurate and objective indicator of the capacities of a child. But what the emerging paradigm offers, as Boyden, et al. posit, is a recognition that “development is not a single built-in process through set stages the same for all children.”164 They write further:
158 Myers, supra note 48 at 30. 159 It should be noted that the number of working children has increased in 2011 as revealed in the preliminary results of the 2011 Survey on Children, supra note 7. According to this report, there were 5.492 million working children from the ages of 5-17 in the Philippines in 2011. However, since the National Statistics Office has only released the preliminary results, facts and figures from the 2001 Philippine Survey are used. 160 2001 Philippine Survey, supra note 7 at 66. 161 Ibid at 31. 162 Martha Minow, Making All the Difference Inclusion, Exclusion and American Law (New York: Cornell University Press, 1990). 163 Ibid at 377. 164 Boyden, et al., supra note 32 at 36.
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Children have multiple capacities, which can be fostered in many different ways, but assumptions about child nature, the goals of child development, and how best to stimulate development in children vary greatly between societies; opinions are widely divergent on what is appropriate learning experience in childhood and what is not….
We have suggested that developmental outcome, or in other words the specific psychological, social, and physical capabilities acquired by children, varies significantly not just with individual capacity but also with experience, and with beliefs and expectations to do with childhood in particular social and cultural contexts.165
Understanding capacities does not simply involve a determination of age; rather it entails an appreciation of competencies, opportunities and constraints, and responsibilities.166 Thus, child work laws need to acknowledge that the use of age as an indicator of capacity is neither precise nor objective. For example, children in the Philippines assume responsibilities in the homes167 and in family trades and businesses at varying ages – some starting very young. In the homes, children’s responsibilities include taking care of younger siblings, cleaning the house, washing dishes, cooking meals for the family, fetching water, gathering firewood and feeding and tending to their animals.168 Despite being excluded by child work legislation, household chores show varying competencies, opportunities and responsibilities. In the workplace, some children reported that they started working even before the age of five.169
In constructing child workers as helpless victims who are coerced into stressful and hazardous environments, the law relies on notions of a naïve and dependent child. Because the child is incapable of making mature decisions, the decision for a child to work is either irrational or one that is forced upon the child. Children should never be put in a situation where they will have to sacrifice their childhood in order to work. Yet as discussed earlier, work is a reality for millions of children. And for these children, it is clear that they either want to help in their own household enterprise or supplement their family income.170
165 Ibid at 56-57. 166 Ibid. 167 Liwag, et al., supra note 132. 168 Felipe Jocano, Social Organization in Three Philippine Villages: An exploration in Rural Anthropology (Manila: Centro Escolar University, 1988). 169 2001 Philippine Survey, supra note 7 at 24. 170 Ibid at 76.
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Contrary to the characterization of children as immature, studies in fact show that children are very perceptive about the circumstances of their family. Children are aware of the difficulties of their families, for example when parents are unemployed or underemployed and additional employment in the family is necessary.171 Rather than seeing the child’s decision to work as taking responsibility, it is characterized as an unfortunate and deplorable imposition on the child. Child work is fundamentally the outcome of a family decision172 and in these family decision making processes, the child plays a significant role. For example, in her study of child domestic helpers, Camacho finds that:
The decision to work and to migrate is regarded by the children as their own, made in consultation with other members of their families. This suggests two things: (1) the increasing role afforded to and claimed by the children in matters affecting them, and (2) the apparently favorable attitude of their families to child labour migration.173
Even in instances where there is uncertainty or unwillingness to work among children, De Vries contends:
[Some] children had to be prodded to work to help their family. While this may be so, one cannot assume that they resent the idea of early work. Generally, these children have manifested deriving a certain degree of self-worth as most of them value the economic worth of their contribution to their family. [They] perceived themselves to be a big help to the family. When asked why they have such a perception, these children proudly said that “kasi meron kaming pambili ng bugas” (“because we will have money to buy rice”). This claim is consistent with the report…that their earnings are spent for food. Further, some of the children even narrated how happy they were during those times that they were able to share part of their earnings to their brothers or sisters. Usually, these children would buy food for their siblings whenever they get their share of their earnings. One girl even mentioned that she is saving money to buy her sister a gift on her birthday.174
171 National Economic and Development Authority-UNICEF, “Child Labor Survey Report of Selected Provinces in Southern Tagalog Region” online: Child Protection in the Philippines: Philippine Resource Network
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Moreover, children’s contributions to the family economy are not only essential175 but also substantial.176 As such, their actual work “can no longer be undervalued and discriminated against, but must be socially acknowledged.”177 The fact is that children are active participants in the family economy, including the decision to work. It is slowly being understood that “children see their own work not primarily as a burden, but as a legitimate right and an opportunity to play a more active and important part in society.”178 In one study, children revealed that they value paid work because it gives them “an adult status and a feeling of belongingness in a bigger world of adults.”179 Thus, contrary to the assumptions which inform the law, children may not be unwilling and unwitting participants in the world of work and they may not necessarily need rescuing.
C. A BROADER UNDERSTANDING OF HARM
As discussed in earlier sections, the association of child work with harm and abuse that led to its conflation with child labor is the result of almost a century of a prohibitory legal approach to child work. An examination of child work laws shows that there is absolutely no recognition of the benefits of work for children. Instead, the focus is on protecting children from harmful and hazardous tasks and undertakings. Such protection is highlighted by the recurring caution that work should not harm the life, safety, health, morals and normal development of the child. While policy is framed in terms of the negative impacts of work, research has shown that child work cannot be sufficiently understood by its ill effects alone. In a comprehensive participatory study on child work conducted in six countries, including the Philippines, Woodhead concluded:
International efforts to combat child labour inevitably concentrate on the harmful effects of work, for example on the damage to physical and psychological health of
175 Ibid. 176 Chris Sakellariou, “Child Labor and Schooling in the Philippines” online: Child Protection in the Philippines: Philippine Resource Network
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children in hazardous industries, the risks of violence and abuse to domestic workers, etc. When the problem is framed as being about ‘hazard’, interventions that eradicate harmful work from children’s lives seems appropriate. But work is not a physical and psychological toxin, in this simple sense. A more complete picture of ‘the problem’ emerges from talking with working children themselves, who also recognize many of the hazards, but are sustained by beliefs about the necessity of their work and the value it brings to themselves and their family. International opinion may judge these children to be misguided. But intervention must start from children’s feelings as well as expert knowledge and public pressure.180
To fully understand the harm in child work, we need to understand how children interpret or construct the meaning of their experiences. The way the law perceives harm may not necessarily be the same way that the child sees it. In this sense, “the child is active in defining the effective environment for development, according to what kinds of activity they seek out, what kinds of stimulation they attend to, and what selective interpretation they place on what they see, hear and feel.”181 Boyden, et al. point out:
It is important to consider whose judgment of risk prevails, what indicators of risk are being used, how these are identified and by whom. Seldom are the views of the protagonists, in this case working children, taken into account, although often their perspective on risk is very different….182
For example, in the 2001 Philippine Survey, the most common problem reported by working children was not that their work was stressful, that they were required to do heavy physical work, or that their work was risky and dangerous. Instead, 1.5 million children (37.6%)183 reported that they were bored with their work. As another example, in the Woodhead study cited earlier, working children indicated that the ill treatment they received from their employers, customers, police and the public caused as much harm as the physical hazards in their work.184 As Boyden, et al. observe, the consequences of harm depend on “the social and normative
180 Martin Woodhead, Children’s Perspectives on their Working Lives A Participatory Study in Bangladesh, Ethiopia, The Philippines, Guatemala, El Salvador and Nicaragua (Sweden: Radda Barnen, 1998) at 61. 181 Boyden, et al., supra note 32 at 45. 182 Ibid at 86. 183 2001 Philippine Survey, supra note 7 at 85. 184 Woodhead, supra note 180.
190 context of work, the nature and severity of a hazard, and how children respond individually.”185 Harm and hazard are not only conceptually ambiguous terms, but also misleading because:
Some children working in industries defined as hazardous may in fact be doing quite safe jobs. By the same token, children working in generally safe industries can be doing a dangerous job. Also, the tendency to list all the hazards associated with a particular industry overlooks the question of their relative severity of impact; whereas some hazard are really quite minor, others are life-threatening. Besides some of the most serious hazards are not occupationally specific but prevalent across all economic sectors, arising from a general deficit of safety measures and unsafe working environments.186
D. A REALITY OF WORK AND SCHOOL
A fundamental assumption made by child labor laws is that children belong in schools and work is harmful because it only serves to push them out of where they should be. From the earliest child work law, the effect of work on the child’s education has been an important criterion for the determination of harm. The standard has been formulated in various ways: work shall not prejudice the child’s attendance in school;187 no work on school days unless the child knows how to read and write;188 work shall not interfere with the child’s schooling;189 or the most recent, the parent or guardian shall provide the working child with the prescribed primary and/or secondary education.190 Internationally, both the UNCRC and the ILO Minimum Age Convention, 1973 also recognize the relationship between work and education. The UNCRC provides that the child has the right to be protected from work that interferes with education191 while the ILO Convention prescribes that the minimum age for admission to work shall not be less than the age of completion of compulsory schooling.192
185 Boyden, et al., supra note 32 at 79. 186 Ibid at 86. 187 Republic Act No. 679, supra note 69, s. 1(a)(2); Republic Act No. 6237, supra note 75, s. 1. 188 Ibid, s. 1(b); Ibid, s. 1. 189 Presidential Decree No. 148, supra note 77, s. 1; Labor Code, supra note 79, art. 139(a). 190 Republic Act No. 9231, supra note 99, s. 2. 191 UNCRC, supra note 49, art. 32(1). 192 C138 Minimum Age Convention, supra note 22, art. 2(3).
191
The legal system has seemed to suggest that the harmful effects of work on the child’s education can be understood rather simplistically. Contrary to the way the law makes it appear, the issue is not just about choosing between work and education. The insistence on preserving the child’s education when the child is working (or is about to work) has merely served to dichotomize the worlds of work and education – children either work or go to school.
The 1987 Constitution mandates that elementary education is compulsory for all children of school age.193 To this end, the State shall “establish and maintain, a system of free public education in the elementary and high school levels.”194 There is no question that schools indeed serve an important function in society. Not only does it create opportunities, but it also facilitates growth and development. The concern with child work legislation is the belief that working and attending school are mutually exclusive. By dichotomizing these two settings, the law legitimizes the view that it is a choice between one or the other. Working children – who tread a path different from a “safe and protected childhood” – then become the targets of regulation. As Myers and Boyden explain:
The idea of a linear pattern of growth and change raised the possibility that children whose development does not conform to this pattern are in some way abnormal or at risk. Because the developmental norm was based on full-time schooling, working children, even those going to school part time, came to be seen either as deviants or victims. The idea that the earliest stages of child development mould development in later stages has given rise to the notion that particularly stressful or traumatic events of early childhood will disrupt or distort children’s later development, often with life-long negative effects. Early exposure to hazardous work, for example, is assumed to result in permanent damage to children’s psychological development.195
In reality, there is a fine line separating work from school in the Philippines. Of the 4 million children working in the country, at least 2.6 million (65.9%) also attend school.196 In fact, children understand the situation of combining work with school. In the comprehensive study by Woodhead, an overwhelming 77% of the children surveyed indicated that a combination of work and study was the best option for their circumstances. Woodhead explained:
Combining work and school is the overwhelming preference. These young people recognised the potential benefits of attending school, but they were also aware of the
193 1987 Philippine Constitution, art. XIV, s. 2(2). 194 Ibid. 195 Myers and Boyden, supra note 11 at 10. 196 2001 Philippine Survey, supra note 7 at 26.
192
difficulties, both the direct costs, (fees etc.) indirect costs (loss of income) as well as the other negative effects of schooling….
Many of these participants did not see them as alternatives. Schooling is desirable, but work is a necessity. Work provides the income to support basic necessities, for self and family, and in many cases makes it possible to afford the additional costs of going to school.197
Some studies even show the causality between school and work. Children work in order to remain or get back to school or to send their siblings to schools.198 Although primary and secondary education are free as mandated by the Constitution, there are still direct and indirect costs of children attending school. These include the cost of uniforms, transportation, food, other learning materials, and miscellaneous fees, in addition to the opportunity cost of the child being in school and out of the work place. Forcing children to leave work may cause them more harm because they lose their source of income that is considered as essential in the family economy. Besides, removing children from work will not necessarily guarantee that they will return to school. On the contrary, it may even completely remove them from school or lead them to enter into more dangerous jobs.
When a working child leaves school, work is instinctively blamed as the cause for such exit. However, that is not necessarily accurate. In the 2001 Philippine Survey, the two most common reasons why children dropped out of Philippine schools were: (i) not interested in school (31.4%) and (ii) cannot afford to go to school (28.3%).199 To engage in employment only comes in third with 9.9%.200 These findings are reiterated in subsequent studies.201 Instead of blaming work for children dropping out of school, energies should be directed towards the growing number of children who are neither working nor studying. Also of significance is the fact that of all the working children who were also in school, at least 55% reported that they were able to manage work and school. Of the other 40% who reported problems, the main concern was difficulty in catching up with the lessons. However, these working children also ranked high on
197 Woodhead, supra note 180 at 76. 198 Rosemarie Fernandez and Melba Manapol, “A Study on Child Labor Situation in Southern Philippines: The Working Children in International Seaports of Sasa, Davao City and Makar, General Santos City” online: Child Protection in the Philippines: Philippine Resource Network
193 their concerns: the high costs of supplies/books/transportation; the distance of school from their residence; and even teachers not being supportive. Thus, as Boyden, et al. argue:
Policies of education and work should be built on considerations of firstly what children need and want to learn in the particular context in which they live and secondly how children learn most effectively, acknowledging that schooling is not always educationally more beneficial for children than are some other activities, including at least some kinds of work. Different environments provide different opportunities and means for children to learn and children in different environments acquire distinct competencies. It is becoming increasingly clear that, to meet children’s multiple capacities and address the multiple developmental goals in different social and cultural settings, a variety of learning opportunities need to be provided in a range of learning contexts.202
V. CONCLUDING REFLECTIONS
The confluence of childhood studies and the increasing recognition of children as right holders has given substance to alternative ways of looking at child work. International agencies such as UNICEF and nongovernmental organizations such as Save the Children and the End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes (ECPAT) have pushed for these emerging perspectives. Even the ILO through the establishment of the International Programme on the Elimination of Child Labour (IPEC) in 1992 has “quickly integrated advocacy of more direct, pragmatic methods of combating child labor.”203 Thus, the ILO has set its priority as targeting the worst forms of child labor as defined in the Worst Forms of Child Labour Convention, 1999. With this growing push for a child-centered view of child work, there is a corresponding demand for a more contextually-sensitive understanding of the realities of children. In response, policy researches in the Philippines have now begun to look at working children (such street children, child domestic workers, children in prostitution, etc.) as active participants in the construction of their realities.204
In the end, the question really is, what does the law make of working children? If these children have been deprived of their childhood then their real lived experiences become inconsequential.
202 Boyden, et al., supra note 32 at 61. 203 Cullen, supra note 12 at 94. 204 See e.g. Protacio-De Castro, et al., Integrating Child-Centered Approaches in Children’s Work (Quezon City: SC-UK Philippines and UP CIDS PST, 2002); Violeta Bautista, et al., Working with Abused Children From the Lenses of Resilience and Contextualization (Quezon City: UP CIDS PST and Save the Children Sweden, 2001).
194
The thrust then of the legal system is simply to “save” these children. That is what the dominant paradigm tells us. Limiting one’s understanding of children and work to traditional approaches may mislead one into thinking that there is a straightforward “solution” to the issue of child work. Child labor legislation creates the impression that it has found that solution. However, as this chapter has attempted to show, the issue is far more complex.
Contextualized studies that focus on how working children see their work in particular and their lives more generally provide us with a broader understanding of the phenomenon of child work. As Woodhead reminds us, the working child as the “target” and “principal stakeholder” has a “well-developed perspective on their situation.”205 At the same time, these sociological and anthropological inquiries provide an avenue for the voices of children to be heard. Consistent with the participation of children, these voices provide “an essential, additional perspective on these processes, from the children’s point of view.”206 And according to the UNCRC, if the right to participation is to be given significance, these views of children are to be given due weight.
The emerging perspectives help broaden our understanding of the reality of children and work. This means acknowledging that our definitions and evaluations of children and work are based on specific interests and assumptions; that child labor laws and policies are informed by dominant paradigms of children and childhood. Unfortunately, these dominant constructions detract us from the most important focus of this whole discourse – the child who is a real live human being. The recognition of the participation of children in the discourse of child work signifies a respect of their rights, realities and relationships. Simply, it is a recognition of who children are, what they are capable of and the connections that they establish in their lives. This demand for respect is, in fact, actively pursued by a world movement of working children from Africa, Asia and Latin America. As declared by these working children:
We want recognition of our problems, our initiatives, proposals and our process of organisation.
We are against the boycott of products made by children.
We want respect and security for ourselves and the work that we do.
205 Martin Woodhead, “Combatting Child Labor: Listen to What the Children Say” (1999) 6 Childhood 27 at 36. 206 Ibid at 45.
195
We want an education system whose methodology and content are adapted to our reality.
We want professional training adapted to our reality and capabilities.
We want access to good health care for working children.
We want to be consulted in all decisions concerning us, at local, national or international level.
We want the root causes of our situation, primarily poverty, to be addressed and tackled.
We want more activities in rural areas and decentralisation in decision making, so that children will no longer be forced to migrate.
We are against exploitation at work but we are for work with dignity with hours adapted so that we have time for education and leisure.207
207 The Kundapur Declaration. These are the ten points of consensus identified by the working child delegates during the First International Meeting of Working Children held in Kundapur, India from November 27 to December 9, 1996.
196
CHAPTER IV
THE CHILD, YOUTH JUSTICE AND THE LAW
Children in conflict with the law (CICL) are called by many different names: kriminal, magnanakaw, mamamatay tao (criminal, thief, murderer), rapist. When people look at them, if they look at all, all they see are the faces of little criminals, fierce, vicious and rough. When people speak of them, their voices are often full of contempt, derision and even condemnation.
These children are often given names that speak only of their crimes and not of their humanity. Their harsh faces are taken to be reflections of their depraved spirits. Many wish to be rid of such useless, hopeless creatures with the belief that these children will continue to lead a life of crime throughout their lives.
What many do not know, or do not wish to know, is that the wicked faces we believe these children to have is just a mask – one that children have put on themselves to hide their pain, anger, and fear, or one that we, in our ignorance and hate, have put on them.1
Youth justice policies not only characterize “child offenders”2 and their activities but also articulate the values that we hold as a society. It is thus unsurprising that the question of the “appropriate” approach to take with respect to youth crime inevitably raises heated, and at times emotional, debates. When children become entangled with the youth justice system, the issue becomes the “cornerstone of a number of key concerns about a disordered present.”3
1 Arnie C. Trinidad, et al, Behind the Mask: Experiences of Children in Conflict with the Law from Rural and Non- Major Urban Areas (Makati City, Philippines: Plan Philippines, 2006) at 10. 2 In the literature of childhood studies, questions have been raised with the use of the term “child offender”. See e.g. Allison James and Adrian James, Constructing Childhood: Theory, Policy and Social Practice (Houndmills, Basingstoke, Hampshire: Palgrave Macmillan, 2004) at 167-168 who argue that the term child or young offenders “raises the question of what else it might be they offend against other than the criminal law. Our answer would be that their offense is also against hegemonic adult perceptions of what childhood and children are. Part of these is how they should behave and in this sense, their offending behaviour is also offensive to adults.” In the Philippines, laws and policies have been moving towards the use of the term “children in conflict with the law” (CICL). 3 John Muncie, Youth and Crime, 2d ed (London: Sage Publications Ltd, 2004) at 9.
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Moral4 panic overcomes society with questions such as “Are the streets safe? Are schools too permissive? Are parents failing to exercise proper control? Is television a corrupting influence? Are courts too soft on young offenders?”5 Maruna and King suggest that “‘the young’…become a potent symbol for societies that are anxious about social change and the erosion of shared values and traditions.”6 In this sense, Cohen writes:
[Y]oung people have had to carry a peculiar burden of representation; everything they do, say, think, or feel, is scrutinised by an army of professional commentators for signs of the times. Over the last century the ‘condition of youth question’ has assumed increasing importance as being symptomatic of the health of the nation or the future of the race, the welfare of the family, or the state of civilisation as-we- know-it.7
Youth justice policy is, in fact, a discourse on “what-the-young-offender-represents” that focuses on societal values, most especially social order.8 In such a scheme, the voices of children are shut out because young offenders are treated merely as legal objects who must either be saved or controlled. Thus, dealing with child offenders through a youth justice system has solely focused on two potentially competing objectives as identified by McAra:
(i) [first,] to help troubled young people to change, develop and overcome their problems – to provide a turning point in their lives; [and]
(ii) [second,] to deliver a firm, prompt and appropriate response to youth offending – a response which offers the best means of protecting the public when necessary (emphasis added).9
These twin objectives are based on the two dominant constructions of childhood that have shaped the history of laws and policies addressing “juvenile delinquency.” May calls these
4 See Michael King, “Introduction” in Michael King, ed, Moral Agendas for Children’s Welfare (London: Routledge, 1999) at 2 who argues: “…[A]ll this moralizing about children has to be seen in the context of a social world where the terms ‘morals’ and ‘morality’ are freely and openly tossed around as if everyone knew exactly what they meant by them. Everyone seems to know what morality is and where to find it….[I]f there are those who behave badly, causing misery and suffering for others, this can be improved simply by turning individuals into better people….” 5 Muncie, supra note 3. 6 Shadd Maruna and Anna King, “Youth, Crime and Punitive Public Opinion: Hopes and Fears for the Next Generation” in Monica Barry and Fergus McNeill, eds, Youth Offending and Youth Justice (London: Jessica Kingsley Publishers, 2009) at 105. 7 Phil Cohen, “The Same Old Generation Game” (1997) 28:1 Criminal Justice Matters 8 at 9. 8 This is consistent with the socialization discourse in both the familial and educational contexts discussed in Chapters I and II respectively of this thesis. As elaborated in those chapters, socialization is viewed exclusively as the adult concern for the reproduction of social order. 9 Lesley McAra, “Models of Youth Justice” in David Smith, ed, A New Response to Youth Crime (UK: Willan Publishing, 2010) at 288.
198 constructions “Innocence and Experience”10, which in law and policy translate into a choice between the “welfare” and “justice” approaches respectively.11 Although such dual objectives have been described as an “over-simplified understanding of the myriad principles”12 shaping policy discourse, these two perspectives still dominate the conversations on youth justice systems, pulling them back to this polarizing dichotomy. Because these youth justice models see a young offender as a child who is either deprived or depraved, the corresponding response is rescue or control, both of which are external impositions on the child. In both responses, children are merely treated as the objects of youth justice laws and policies.
The current debates in the Philippines illustrate the influence of these two approaches. Very recently, incidents of armed car burglary committed by children along one of the busiest streets in the Philippine capital of Manila triggered debates on how to “deal” with “these” children. There was a barrage of news footage showing a series of armed robberies committed by children who would “forcibly open the doors of taxis caught in traffic, rob the driver and passengers at gunpoint, and scamper away with the loot.”13 Media reports lamented that despite the brazenness of their acts, these children would be “let go without so much as a slap on the wrist.”14
These children grabbed so much media attention that they earned the moniker “batang hamog.” Said one newspaper report:
The term batang hamog, as far as I know, is a recent addition to our urban lexicon. It refers to indigent children who roam the streets of Manila, often begging, sometimes stealing but often under the influence of glue, more popularly known by the brand name Rugby, to which many of them have become addicted. Nobody knows for sure how the term originated, which translates to English as “child of dew” or “child of mist.” Maybe it refers to the vapor that forms on car windows to which these young vagabonds press their faces to make themselves look more pitiable – or perhaps to get a better view of what valuables can be grabbed from inside the vehicle.15
10 Margaret May, “Innocence and Experience: The Evolution of the Concept of Juvenile Delinquency in the Mid- Nineteenth Century” in John Muncie, et al, eds, Youth Justice: Critical Readings (London: Sage Publications Ltd., 2002). 11 See e.g. Roger Smith, “Welfare vs. Justice – Again!” (2005) 5:3 Youth Justice 3. 12 McAra, supra note 9 at 287. 13 Joel Adriano, Wasted Youth in the Philippines, online: Asia Times
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The media took this opportunity to highlight the “resurgence” of crimes committed by children. This media coverage created a sense of panic that has fuelled antagonism against the current Philippine law on youth crime and invoked calls for harsher laws. The conflict primarily comes from the fact that the present youth justice law,16 in place since 2006, raised the minimum age of criminal responsibility to 15. This means that a child 15 years of age or under at the time of the commission of the offense is exempt from criminal liability.17 In addition to this, a child above 15 but below 18 years of age is also exempt from criminal liability if such child acted without discernment. Under the previous law,18 the much lower age of nine marked the commencement of criminal responsibility. As well, the exemption for those who acted without discernment was only for those above nine and below 15. Thus, under the previous legal regime, children were “caught” within the criminal justice system at a much younger age whereas under the current law, the threshold for criminal responsibility has been pushed higher. The dispute heatedly focuses on whether or not to lower the age for criminal responsibility.
The current debates in the Philippines ostensibly seem to be concerned only with the question of the minimum age of criminal responsibility. In reality, however, the current debates reflect a broader disagreement between proponents of the welfare and justice responses to youth offending. By arguing for the lowering of the minimum age of criminal responsibility, those who oppose the current law espouse the broader responsibilization and punishment of children. This argument is fundamental to the justice model. On the other hand, proponents of the current law who defend the minimum age of criminal responsibility at 15 continue to argue for a welfarist approach in dealing with child offenders with the understanding that: “Children in
16 Republic Act No. 9344 (2006) An Act Establishing a Comprehensive Juvenile Justice and Welfare System, Creating The Juvenile Justice and Welfare Council under the Department of Justice, Appropriating Funds Therefor and for other Purposes [Juvenile Justice and Welfare Act of 2006]. 17 The law uses the phrase “15 years of age or under” to identify children who are exempt from criminal liability. This has caused some confusion in identifying the precise age when criminal responsibility begins. The Philippine Supreme Court later clarifies this in A.M. No. 02-1-18-SC (2009) Revised Rule on Children in Conflict with the Law, s. 4(a) when it defines the age of criminal responsibility as “the age when a child, fifteen (15) years and one (1) day old or above but below eighteen (18) years of age, commits an offense with discernment (emphasis added).” This means that criminal responsibility begins precisely on the day immediately succeeding the 15th birthday of a child. 18 Presidential Decree No. 603 (1974) Child and Youth Welfare Code.
200 conflict with the law should not be treated by the state as hardened criminals but as victims of circumstances beyond their control (emphasis added).”19
This chapter argues that despite the fact that the 2006 law introduced a new framework into the Philippine youth justice system that attempts to move away from a simplistic either-or dichotomy between the welfare and justice models, the legal system is still caught in the push and pull of these two dominant models. Significantly, the current Philippine law has introduced a new framework of participation into the youth justice system that radically repositions the child within the system. However, because the youth justice system has had a long legal history of being shaped and influenced by particular understandings of these two dominant approaches, the current debates reflexively revert to them. Thus, notwithstanding the introduction of a participatory framework within the Philippine legal system, rooted in new understandings of children and childhood, the conversations on youth justice policy remain fixed on a choice between the two dominant paradigms that continue to see young offenders simply as objects of the youth justice system.
To be sure, the chapter does not discount the significance of setting an appropriate minimum age of criminal responsibility. In fact, the United Nations Convention on the Rights of the Child (UNCRC) mandates, among others:
States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:
(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.20
The setting of a minimum age of criminal responsibility has even led the Committee on the Rights of the Child (Committee) to direct states parties to the UNCRC “not to set a MACR [minimum age of criminal responsibility] at a too low level and to increase the existing low
19 Leila B. Salaverria, Jailing Kids No Answer to Rising Criminality, Says DSWD Exec, online: Philippine Daily Inquirer
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MACR to an internationally acceptable level.”21 The Committee urges:
From these recommendations, it can be concluded that a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable. States parties are encouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level.22
What the chapter attempts to highlight is that the issue of fixing the minimum age of criminal responsibility is part of an entire legal and policy framework governing child offending. The Committee itself underscores that a juvenile justice policy must “not be limited to the implementation of the specific provisions contained in…[the] CRC.”23 States must develop and implement a comprehensive juvenile justice policy that takes into account the general principles of the UNCRC including, among others, the participation of children and their right to be heard.24 As such, unless there is a careful exploration of the overall framework of youth justice policy, the system will continue to exclude children by treating them as legal objects and failing to recognize and provide for their participation.
The chapter argues that underneath the debates on youth justice policy is the equally important discourse of how society – through its legal system – constructs children and childhood. As James and James have put it: “the way in which adults respond to the crimes of the young…helps us to understand how childhood is produced and reproduced.”25 Whether the youth justice policy aims to address the needs of the victim-child or control the behavior of the responsibilized child offender, the underlying assumption is that child offenders have to be “returned to their childhood” and become “the child” again. The construction of children and childhood in these dominant approaches are, at best, insufficient to encapsulate the essence of the diverse lives and experiences of children. Given that these polarizing arguments have dominated the discourse of youth justice policy, this chapter attempts to reframe the discussion by moving away from that simplistic either-or choice between the welfare and justice models
21 United Nations Committee on the Rights of the Child, General Comment No. 10 (2007) Children’s Rights in Juvenile Justice, CRC/C/GC/10, 44th Sess (2007) at 11, par. 32. 22 Ibid. 23 Ibid, par. 4 at 3. 24 Ibid. 25 James and James, supra note 2 at 168.
202 and to explore the framework of participation that has already been introduced into Philippine law, at least on paper, and which has been obscured in recent debates.
The chapter demonstrates the limitations of a discourse solely focused on the dominant understandings of the welfare and justice approaches that has obscured the remarkable achievement of the current law. The chapter proposes an understanding of the 2006 Philippine law on youth justice policy as based not solely on the welfare model, as its current detractors would portray it, but as a complex merger and harmonization of the principles of welfare and justice combined with a fundamental recognition of and respect for the participation of children within the system. Moving away from the dominant understandings of the welfare and justice approaches allows for a broader understanding of the diverse realities of children and at the same time shows greater respect for their rights and the system of relationships within which those rights are exercised. The chapter argues that through the utilization of the principles and mechanisms of individualized intervention programs, contextualized diversion and community- based rehabilitation and reintegration within an overall a framework of restorative justice, the law advances the participation of children in a way that recognizes and respects their rights, realities and relationships.
The chapter begins in Section I by looking at the two dominant models of youth justice policy that reflect the dominant constructions of children and childhood. Viewing child offenders as purely “victims” is built around romantic notions of innocence and dependence. This justifies the welfarist objective of saving the child offender. On the other hand, the construction of child offenders as a “threat” to society elicits the image of a depraved and uncontrollable “other” who needs to be punished and “taught a lesson,” the response of the justice approach. These models translate the responses to child offending into either rescuing children by providing for their needs or responsibilizing and punishing them for their deeds.
The chapter then moves on to Section II which examines an emerging paradigm informed by a broader understanding of what it means to be a child and the experience of childhood. The opening up of the discourse of children and childhood through this emerging paradigm supports the participation of children within youth justice laws and policies. Recognition of the participation of children leads to a richer understanding of the circumstances of children, which
203 in turn allows them to take responsibility for their actions. The system of youth justice then is not necessarily directed at the rescue of the “innocent” child. Neither is it necessarily directed at attribution of individual responsibility for the “delinquent” child. These new understandings demonstrate a harmonization of the welfare and justice approaches and a re-imagining of their fundamental values within the context of children’s participation. As such, youth justice is not confined to a universalized response of rescue or control but in fact, is cognizant of the importance of individualized responses that are both appropriate and proportionate to the child’s circumstances and offense.
In Section III, the chapter traces the evolution of youth justice policy in the Philippines beginning in the nineteenth century. It looks at how laws and policies, up until the 1990s, essentially maintained a rhetoric of welfare which portrays children as victims of circumstances who must be rescued. Within this predominantly welfarist articulation, however, there was still the presence of a justice approach that attributed responsibility through the finding of fault and the imposition of punishment on certain children, particularly repeat offenders and those committing serious crimes. The portrayal of child offenders as either victims or dangerous delinquents elicited straightforward responses leading to the dichotomization of the welfare and justice approaches with the understanding that the youth justice system was simply a choice between rescue and punishment. Despite this dichotomy between the welfare and justice models at the level of rhetoric, there was nevertheless a conflation of understandings in practice. Thus, despite the overt rhetoric of welfare, in practice the implementation of youth justice laws and policies took on a patently punitive justice-oriented approach. This dichotomy between welfare and justice at the level of rhetoric and their conflation in practice led to a polarized and inconsistent system of youth justice.
Section III then goes on to demonstrate how, more recently, the system of youth justice has been reformulated to reflect a new, emerging paradigm of children and childhood. Attempting to address both the rhetoric and the reality of the youth justice system, these reforms culminated in the enactment of the current law, the Juvenile Justice and Welfare Act of 2006. In the 2006 law one finds not only a harmonization of the principles of both approaches to youth justice policy but also – and more importantly – a reformulation of those values within the context of children’s participation. However, as will also be shown in the last part of this section, despite
204 the introduction of a new, and very different, set of understandings of the youth justice system in the current law, this very positive development has been overshadowed by the current debates about the 2006 law that are still structured around the dominant understandings and the polarity between the welfare and justice traditions. This has reinforced the notion that youth justice policy is indeed restricted to a choice between whether it should rescue children or attribute responsibility and punishment to offenders.
In Section IV, the chapter examines in detail the current law on youth justice in the Philippines, the Juvenile Justice and Welfare Act of 2006. It begins with an analysis of the limitations of the debates focusing on the dominant understandings of welfare and justice that merely see children as the targets of the youth justice system. The section then shows how the current law has, in fact, addressed these issues through the introduction of a participative framework. The section focuses on this alternative framework that recognizes and respects the participation of children within the youth justice system. The participatory framework introduced by the law is translated into the principles and mechanisms of individualized intervention programs, contextualized diversion and community-based rehabilitation and reintegration, all in accord with the rights, realities and relationships of the child offender. Thus, instead of unbridled impositions on children characterized as either curative or punitive, the law espouses a system that engages in a process of rebuilding and reconnecting.
The chapter concludes in Section V by looking at the potential of the participative framework introduced by the current law. By allowing the youth justice system to recognize and respect the rights, realities and relationships of children, the law makes a judicious attempt to transform how we understand and respond to children, their “needs” and their “deeds”. However, there is a difficult task ahead for the law especially with the full understanding and implementation of the transformative framework that it introduces. The final section acknowledges that changing the discourse in the law requires a corresponding implementation throughout the system and on the ground. As Glendon reminds us of this critical interaction between rhetoric and reality: “But just as we must guard against having exaggerated expectations of what law can accomplish on its
205 own, we must also take care not to fall into the opposite error of unduly minimizing its potential to influence social trends.”26
I. DOMINANT MODELS OF YOUTH JUSTICE POLICY:
REFLECTING THE DOMINANT CONSTRUCTIONS OF CHILDREN AND CHILDHOOD
The manner of intervention embodied in the models of youth justice policy is based on a particular construction of children and childhood.27 Discussions of youth justice policy center on two dominant models that demonstrate how child offenders have been viewed either as victims or threats. These models translate the responses to child offending into either “rescue” for the “child in need” or “punishment” for the “young criminal.”28 They find their justification in constructing young offenders either as innocent vulnerable children who have to be saved in their childhood or crafty and mischievous young adults who have to be punished and controlled. Consequently, as Muncie and Hughes lament, “government debates circulate around how to responsibilize, how to mange, how to control, rather than challenging established discourses about youth and childhood.”29 It is important to make clear, at the beginning, that both “welfare” and “justice” are complex concepts and that the focus here is on the totalizing and restrictive ways in which these concepts have been applied in the youth justice context. As will be shown below, the emerging paradigm does not completely reject these concepts, but rather combines and reformulates them into a framework that respects the rights and participation of children.
A. WELFARE AND THE ETHIC OF CARE:
SAVING THE INNOCENT CHILD
The first of the two dominant models of youth justice policy places primary emphasis on addressing the needs of young offenders instead of considering the wrongfulness of the offense.
26 Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (Chicago: University of Chicago Press, 1989) at 311. 27 See Barry Goldson and John Muncie, “Critical Anatomy: Towards A Principled Youth Justice” in Barry Goldson and John Muncie, eds, Youth Crime and Justice: Critical Issues (London: Sage Publications Ltd, 2006) at 214. 28 See e.g. Alberto Muyot, “An Overview of the Legal Regime for Child Protection in the Philippines” (2004) 30:1 Journal of the Integrated Bar of the Philippines 1. 29 John Muncie and Gordon Hughes, “Political Rationalities, Criminalization and Resistance” in John Muncie, et al, eds, Youth Justice: Critical Readings (London: Sage Publications Ltd., 2002) at 15.
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Ensuring the welfare of children is a “key formal principle”30 underlying work with young offenders. Within the tradition of the welfare approach, the “criminal” behavior of the child is understood to be merely a manifestation of underlying problems. Thus, Smith writes: “[young offenders’] actions are largely determined by adverse circumstances.”31 In this welfare model, the objective is to “improve” the lives of children by protecting them in their childhood and promoting their development into productive adults.32 Mallonga explains:
The focus of judicial intervention is shifted from the offense to the offender. Supposedly, it is not the offense, committed in the past or prior to any pending State action that determines the content and intensity of the intervention, but the welfare of the offender, as a future aim. Whereas penal justice, which the Court must dispense, is deemed retrospective in the sense that the offender shall be accountable for a previous deed. Yet juvenile justice is prospective in that the child offender must be treated or rehabilitated for reformation or restoration purposes, making the child a constructive member of society.33
Given this agenda of the welfare model, youth justice policy is seen as a means of keeping the innocence of children in their childhood. Jenks traces this perspective of seeing childhood as a protected phase of development:
An archaeology of the ideas which give rise to the modern ‘child’ reveals a strong and continuous commitment to conceptions of childhood innocence. First, emanating from Rousseau, children are awarded a purity, by virtue of their special nature. Emerging from the Enlightenment, they are the Ideal immanence, and the messengers of Reason. It is the experience of society which corrupts them. Left to its own devices the child would by nature, it was supposed, be guiltless. A second engagement with childhood innocence stems from Locke: children are thought to be innocent, not innately, but, like halfwits, as a consequence of their lack of social experience. Through time, the unknowing, unworldly child may become corrupted by society….
Notwithstanding differences in accounts of childhood’s state of being, nor yet of the purpose and intent of its usage over time, the theme of innocence has remained closely tied to ‘the child’.34
30 Muncie, supra note 3 at 250. 31 Roger Smith, “Childhood, Agency and Youth Justice” (2009) 23:4 Children and Society 252 at 256. 32 In the Philippines, this model has been significantly influenced and shaped by the child-saving movement of the United States. Thus, the Child and Youth Welfare Code, supra note 18, arts. 1 and 3(3) mandate that every effort must be exerted to promote the welfare of the child “to the end that he may become a happy, useful and active member of society.” 33 Eric Mallonga, “In the Child’s Best Interest: Reorienting Juvenile Justice” (2004) 30:1 Journal of the Integrated Bar of the Philippines 28 at 29. 34 Chris Jenks, Childhood (London: Routledge, 1996) at 123-124.
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Because welfarist policies are formed around the romantic rhetoric of innocence, vulnerability and dependency of childhood, children are subjected to over-sentimentalization. Wall puts it succinctly: “putting a subset of humanity up on a pure and ethereal pedestal is another way to dehumanize and exclude them.”35 Equally important, in this discourse, parental responsibility is critical. Parents have the responsibility of providing moral guidance and discipline to their children and of supervising their activities. Consequently, child offending is seen as a manifestation of parental failure,36 which also sets into motion the state responsibility of parens patriae in caring for and supervising these victim-children. Mallonga explains the duty of the state towards children:
Court intervention [is] justified by the theory that a child’s natural protectors – the parents – [are] unable or unwilling to provide the appropriate care. The Court [takes] the place of the parents, and hence, the beginning of parens patriae and its eventual evolution.
Under such doctrine, the courts would adopt a paternalistic attitude and consider the child as a distinct individual entitled to treatment and rehabilitation rather than prioritise the victim’s retribution (emphasis added).37
This duty of the state validates the position of James and James that youth justice policies also represent the drive to reassert not only parental responsibility but also adult authority over children in the face of the challenge of youth crime.38 Scott further elucidates:
Reinforcing this image of youthfulness [is] the metaphor of the state as the kind parent concerned only with the welfare of children.
[D]elinquent youths and children who [are] neglected by their parents [are] not very different from each other. All of the children who [come] within the jurisdiction of the court [are] innocent victims of inadequate parental care, and the state’s role in both delinquency and neglect cases [is] to intervene ‘in the spirit of a wise parent toward an erring child.’ Indeed, parental neglect [is] understood to be the primary cause of delinquency. The political objective [is] to promote an image of young offenders as children whose parents…[fail] them, rather than as criminals who [threaten] the community.39
35 John Wall, “Human Rights in Light of Childhood” (2008) 16 Int’l J of Children’s Rts 523 at 526. 36 In fact, in the Philippines, the Child and Youth Welfare Code, supra note 18, art. 61 provides: Whenever a child is found delinquent by any court, the father, mother or guardian may be judicially admonished. 37 Mallonga, supra note 33 at 28-29. 38 James and James, supra note 2 at 171. 39 Elizabeth Scott, “The Legal Construction of Adolescence” (2000) 29 Hofstra L Rev 547 at 581.
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In the end, the construction of children in the welfare approach as innocents and dependents legitimizes the dominant – and problematic – notion that child offenders are no more than victims who need to be saved. With such a view, the voices of children are shut out and they are treated merely as the passive targets of laws and policies. Because they have been deprived of their childhood, youth justice policies return these children to a “proper” life of growth and carefree play where vulnerability and dependency are objective markers of childhood. This also justifies the regulation of child offending using the same ideological basis as the welfare system: that the youth justice system is intended to “help the clients,” not to punish them.40
B. JUSTICE AND RESPONSIBILIZATION:
CONTROLLING THE DANGEROUS CHILD
The second dominant model of youth justice policy is the justice approach, which is primarily concerned with managing the behavior of young offenders. Fundamental in this approach is the attribution of responsibility to child offenders for the crimes that they commit. There are two important aspects to this responsibilization of child offenders: first, is the overarching emphasis on punishment; and second, is an underlying reliance on a strict judicial process.
1. Responsibility and the Imposition of Punishment
Fundamentally, a justice approach in youth justice policy is concerned with behavior, i.e., the specific act that initiates the child into the justice system, rather than the circumstances of the child offender. As such, “personal qualities and attributes are…seen to be represented by what [child offenders] do, rather than by any underlying factors.”41 Since the response in this model is offense-based, “children can, therefore, be legitimately punished for what they have done.”42 Disregarding the circumstances of the child offender, the justice model sees offending as an “‘individualised’ activity, for which the young people concerned must accept exclusive responsibility.”43
40 Joel Handler and Margaret Rosenheim, “Privacy in Welfare: Public Assistance and Juvenile Justice” (1966) 31 Law & Contemp Probs 377 at 394. 41 Smith, supra note 31. 42 Stewart Asquith, “Justice, Retribution and Children” in Allison Morris and Henri Giller, eds, Providing Criminal Justice for Children (London: Edward Arnold Publishers, Ltd., 1983) at 8. 43 Smith, supra note 31 at 253.
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The basic assumption of the justice model is that “delinquency is a matter of opportunity and choice…the act…is a manifestation of the rational decision to that effect.”44 This argument finds its basis in the fundamental principle of responsibility in that when a child commits an act, that child must face the consequences. Because offending is seen as a product of rational choice,45 child offenders understand their actions and must take responsibility for their behavior.46 Consequently, the behavior need not be understood but simply controlled. Von Hirsch, a leading proponent of the justice model in the U.S. explains:
Punishing someone conveys in dramatic fashion that his conduct was wrong and that he is blameworthy for having committed it.47
The offender may justly be subjected to certain deprivations because he deserves it; and he deserves it because he has engaged in wrongful conduct – conduct that does or threatens injury and that is prohibited by law. The penalty is thus not just a means of crime prevention but a merited response to the actor’s deed, ‘rectifying the balance’…and expressing moral reprobation of the actor for the wrong.48
Underneath this approach of responsibility and punishment to youth justice policy is a fundamental idea of “[d]emons hav[ing] invaded the innocents”49 where children are the “dangerous other.”50 Jenks graphically describes this demonized child:
Children, it is supposed, enter the world as a willful material force, they are impish and harbour a potential evil. This primal force will be mobilized if, in any part, the adult world should allow them to stray away from the appropriate path that the blueprint of human culture has provided for them. Such children must not fall into bad company, establish bad habits, or develop idle hands – all of these contexts will
44 Muncie, supra note 3 at 265. 45 McAra, supra note 9. 46 For example, in a proposed bill in Philippine Congress, when a child aged 12-15 is accused of murder, parricide, infanticide, homicide, kidnapping and serious illegal detention, rape, robbery, destructive arson, carnapping, drug trafficking or other offenses punishable by more than twelve 12 years, there is an automatic presumption that the child acted with discernment. House Bill No. 6052 introduced by Representatives Salvador H. Escudero III, Cinchona Cruz-Gonzales, Mel Senen S. Sarmiento, Jerry P. Treñas, Mary Mitzi L. Cajayon, Roberto V. Puno, Pablo P. Garcia, Rex Gatchalian, Karlo Alexei B. Nograles, Erico B. Aumentado, Anthony Rolando T. Golez, Jr. Romeo M. Acop, Pedro P. Romualdo, Rene L. Relampagos, Rufus B. Rodriguez, Cesar V. Sarmiento, Jeci A. Lapus, Carlo V. Lopez, Mercedes K. Alvarez, Maria Zenaida B. Angping, Susan A. Yap, Arnel M. Cerafica and Marlyn L. Primicias-Agabas, An Act Strengthening the Juvenile Justice System in the Philippines, Amending for the Purpose Republic Act No. 9344, Otherwise Known as the “Juvenile Justice And Welfare Act Of 2006.” 47 Andrew von Hirsch, Doing Justice: The Choice of Punishments (New York: Northeastern University Press, 1986) at 48. 48 Ibid at 51. 49 Muncie, supra note 3 at 7. 50 Ibid.
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enable outlets for the demonic force within, which is, of course, potentially destructive not just of the child but also of the adult collectivity.51
With the demonization of children, childhood is constructed as a period of “natural barbarism, tyranny, and fickleness of human nature [that it] needs to be elevated toward civilization and justice.”52 Children now represent “the perceived threat to social stability posed by unregulated, undisciplined and disorderly youth outside adult control.”53 This view of children rationalizes the perception that children exceed limits on a constant basis. Jenks explains:
The idea that the child might be inherently evil stems from an earlier historical period but is not without trace elements in contemporary moralizing, criminology and debate over pedagogic practice. This image rests upon the assumption of an initial evil, corruption, baseness, disruption and incompetence as being primary elements in the constitution of the child. Childhood, then, is found in the exercise of restraint upon these dispositions or more intrusively, in the exorcism of these dispositions by programmes of discipline and punishment.54
Such a construction of children creates the impression that child offending can be understood in a simplistic dichotomy between good and evil or innocent and depraved.55 Jenks explains that such “an image of wilful and unconstrained potential…has always provided the dark side or inarticulate backdrop to our contemporary and dominant images of innocence.”56 This “child-as- a-threat” construction rests not only on a mistrust of children in general, but also on a fear of a failing justice system that has become too soft on crime. Brown explains:
Delinquents [are] no longer social casualties. They [are] deliberate lawbreakers who must be held responsible for their actions – in other words, they [are] young criminals. Insofar as offending [has] a cause, its roots lay in a decline in discipline and a growth in permissiveness in families and schools. This [produces] a lack of respect for adults, authority and the law. Crime could only be controlled if it [is] punished more severely by tougher custodial and non-custodial sentences. The police [need] to be strengthened and the courts given increased powers.57
51 Jenks, supra note 34 at 71. 52 Wall, supra note 35 at 524. 53 Sheila Brown, Understanding Youth and Crime: Listening to Youth? (Buckingham: Open University Press, 1998) at 77. 54 Chris Jenks, “Childhood and Transgression” in Jens Qvortrup, ed, Studies in Modern Childhood: Society, Agency, Culture (Houndmills, Basingstoke, Hampshire: Palgrave Macmillan, 2005) at 122-123. 55 See King, supra note 4. 56 Jenks, supra note 34 at 126. 57 Brown, supra note 53 at 64.
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In the end, Scott finds that “advocates for tougher juvenile crime policies reject virtually every aspect of the Progressive image of young offenders as immature children” because:
…[T]he romanticized accounts of youngsters getting into scrapes with the law have no relevance in a world in which savvy young offenders commit serious crimes. These reformers apparently assume that there are no psychological differences between adolescent and adult offenders that are important to criminal responsibility. Juvenile offenders ‘are criminals who happen to be young, not children who happen to commit crimes’ (citations omitted).58
2. Responsibility and a “Determinate” System of Justice
There is another aspect of the justice model: the insistence on a formal system of justice that protects children in conflict with the law from the intrusive discretionary power of the state. This component of the justice model remains linked to the basic principle of responsibility that underpins the justice approach. The attribution of responsibility to child offenders, with its corresponding imposition of punishment, is justified by a court system that protects against the insidious welfarist agenda of the state. Within this system, responsibility and punishment are portrayed as “rational, consistent and determinate.”59
While a welfarist approach looks at the “needs” of the offender to determine not only whether intervention is necessary but also the appropriate type of intervention, the justice model insists on “proof of commission of an offense [as] the sole justification for intervention and the sole basis of punishment.”60 Asquith highlights the problem of the unaccountable and indeterminate discretion of the state operating under the welfarist model:
[W]elfarism is based on philosophically unsound principles insomuch as it is not possible to identify criteria which can either be employed to explain delinquent behavior or to inform the measures to which children are subjected in their ‘best interests’. In short, if we do not really know what we are doing with children we should not pretend to be employing the rhetoric of therapy when what is being exercised is a very subtle form of social control.61
58 Scott, supra note 39 at 583-584. 59 Phil Scraton and Deena Haydon, “Challenging the Criminalization of Children and Young People: Securing a Rights-Based Agenda” in John Muncie, et al., eds, Youth Justice: Critical Readings (London: Sage Publications Ltd., 2002) at 311. 60 Muncie, supra note 3 at 265. 61 Asquith, supra note 42.
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In contrast, the justice model situates the requirement of “proof of commission of a crime” within a determinate system of justice where discretion is removed from unaccountable welfare professionals who have dictated the types of intervention to be received by children offenders. Accordingly, the determinate court system espoused by the justice model is looked to as a counterpoint to the expansive intrusion of the welfare model into the lives of children. Scraton and Haydon write that the justice model allows responsibility and punishment to “fit the crime while protecting the child against disproportionate or arbitrary punitive measures masked as ‘treatment.’”62 Significantly, within the dominant framework of youth justice that offers only a dichotomized choice between welfare and justice, rights are exclusively associated with the justice model. Those seeking to protect the rights of child offenders from arbitrary treatment and control are required to turn to the justice model, where rights are secondary to a system focused on responsibility and punishment. As Asquith writes: “only in a system in which children are punished for what they have done can their rights best be protected.”63
II. EMERGING PARADIGM:
LOCATING THE CHILD WITHIN YOUTH JUSTICE POLICY
One of the main themes of this thesis, building on the seminal work of Prout and James, is that childhood is a social construction: “childhood, as distinct from biological immaturity, is neither a natural nor universal feature of human groups but appears as a specific structural and cultural component of many societies.”64 The dominant models of youth justice policy, carrying with them their particular images of children and childhood, illustrate this process of social construction. As adverted to earlier, James and James write: “the way in which adults respond to the crimes of the young…helps us to understand how childhood is produced and reproduced.”65
With the recognition that childhood is a social construction, there is the possibility of broadening the understanding of what it means to be a child and of what informs the experience of childhood. James and James eloquently maintain:
62 Scraton and Haydon, supra note 59. 63 Asquith, supra note 42. 64 Alan Prout and Allison James, “A New Paradigm for the Sociology of Childhood? Provenance, Promise and Problems” in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood, 2d ed (London: The Falmer Press, 1997) at 8. 65 James and James, supra note 2.
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[C]hildhood varies with regard to the ways in which concepts of child-specific ‘needs’ and ‘competencies’ are articulated and made evident in law and social policy, as well as in the more mundane and everyday social interactions that take place between adults and children. Here, then, is the social construction of childhood, depicted as the complex interweaving of social structures, political and economic institutions, beliefs, cultural mores, laws, policies and the everyday actions of both adults and children, in the home and on the street….66
The opening up of the discourse of children and childhood to encompass the diversity of childhood experiences exposes the restrictiveness of a youth justice policy based solely on a choice between welfare and justice. By reducing the realities of children to a universalized conception and restrictive duality of either innocent victims or cunning delinquents, the two dominant approaches simply treat child offenders as the passive targets of adult rescue and control. Children then remain silent and only become visible as they relate to the adult-centric agenda.67 Goldson and Muncie capture the totalizing and limiting construction of children in the dominant approaches: “when the constructionist gaze shifts from the child as ‘victim’ to the child as ‘threat’, inclusionary welfarism is starkly displaced by exclusionary punitivism.”68 This means that within the dominant models, children fit into either a victim or villain mold that evokes straightforward institutional infrastructures. Smith aptly argues that reducing youth justice policy to “no more than polarized exchanges between proponents of ‘justice’ or ‘welfare’ solutions to the problems represented by young offenders”69 portrays young people and their actions “to the level of caricature.”70
The emerging paradigm opens up the understanding of childhood to the various realities and experiences of children. As such, there is neither an exclusive representation of who child offenders are nor a universal prescription of what they “need” contrary to what the dominant models would suggest. Consequently, youth justice policy represents more than a mutually exclusive choice between these dominant models. As Muncie and Hughes remind us:
66 Ibid at 13. 67 See e.g. Ann Oakley, “Women and Children First and Last: Parallels and Differences Between Children’s and Women’s Studies” in Berry Mayall, ed, Children’s Childhoods: Observed and Experienced (London: The Falmer Press, 1994). 68 Goldson and Muncie, supra note 27. 69 Smith, supra note 31 at 252. 70 Ibid.
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The history of youth justice is a history of conflict, contradictions, ambiguity and compromise. Conflict is inevitable in a system that has traditionally pursued the twin goals of welfare and justice. Welfarism promises a focus on meeting needs and rehabilitation but has always been compromised by an enduring neo-conservative framework of moral culpability and punishment. Justice implies a commitment to individual rights and due process but has readily been translated into neo-liberal responsibilization and neo-conservative retributive strategies. A narrow justice v. welfare debate is thus particularly moribund, for neither model has ever been fully realized in practice. Rather, youth justice tends to act on an amalgam of rationales, oscillating around and beyond the caring ethos of social sciences and the neo-liberal legalistic ethos of responsibility and punishment. As a result it continually seeks the compromise between youth as a special deserving case and youth as fully responsible for their own actions.71
Within this opening up of the discourse of children and childhood, the emerging paradigm offers the opportunity to recognize the participation of children within youth justice laws and policies. With such an acknowledgment, there is a richer understanding of the circumstances of children, which in turn allows them to take responsibility for their actions. Youth justice laws and policies then become more relevant and meaningful to the lives and experiences of the children themselves. These understandings challenge the conventional construction of children as either purely innocent and vulnerable or cunning and dangerous upon which the traditional models of youth justice policy have based their strategies. Instead, the emerging paradigm recognizes the diverse realities of children and their capacity to process, make meaning and express those experiences. Thus, youth justice policies are with children, not just about them.
An important influence on the emerging paradigm is the international movement recognizing children as rights-bearers. This has changed the position of children from passive recipients of adult care and protection to active rights holders who participate in the construction and determination of their own lives, the lives of those around them and of the societies in which they live.72 Thus, Foley et al explain that the “children’s right movement has moved beyond a traditional concern with the protection of children.”73 This movement has culminated with the UNCRC which requires that systems of youth justice accord a fundamental recognition of the personhood of every child. The UNCRC asserts that a core value of the youth justice system is
71 Muncie and Hughes, supra note 29 at 1. 72 Prout and James, supra note 64. 73 Pam Foley et al, “Contradictory and Convergent Trends in Law and Policy Affecting Children in England” in Christine Hallett & Alan Prout, eds, Hearing the Voices of Children: Social Policy for a New Century (London: RoutledgeFalmer, 2003) at 108.
215 the promotion of the child’s sense of dignity and worth.74 Within this understanding, the UNCRC redefines protection and responsibility focusing clearly on their interdependency in the youth justice system. This is tellingly illustrated by article 40(1) which links promotion of the child’s sense of worth and dignity with respect for the rights of others and the child’s assumption of a constructive role in society:
States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.75
In advancing the emerging paradigm, the UNCRC insists on the recognition and respect of children as children. A key principle is the development of a system of youth justice specifically applicable to children, which is seen as including the establishment of a minimum age of criminal responsibility and the use, whenever appropriate and desirable, of measures in dealing with young offenders that do not involve resorting to judicial proceedings.76 Thus there is a significant protective element and a recognition that the harsh adult justice system will often not serve the best interests of children. Within such recognition, however, the UNCRC does not understand childhood as being incomplete, deficient or a less preferred state. Rather, it appreciates the value of childhood, highlighting the evolving capacities of children. As such, youth justice is not necessarily confined to a universalized response of rescue or control; instead the UNCRC framework acknowledges the importance of individual responses that are both appropriate and proportionate to the child’s circumstances and offense. Such individualized responses, in turn, demonstrate the recognition of the diverse realities and experiences of children who are caught within the system of youth justice. In particular, the UNCRC provides:
A variety of dispositions, such as care, guidance and supervision orders;
74 UNCRC, supra note 20, art. 40(1). 75 Ibid. 76 Ibid, art. 40(3) provides: States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: (a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law; (b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.
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counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.77
That children are not mere passive recipients of adult protective care but more importantly, active rights-bearers is further recognized by the UNCRC as it particularizes the rights of the child offender, both substantive and procedural. Transcending the dichotomized models found in the dominant discourse, the UNCRC treats the recognition and protection of the rights of children as a fundamental element of any youth justice system, not simply as an adjunct to a system focused on punishment. For example, the UNCRC mandates states parties to ensure that every child shall have the following basic rights when brought within the system of youth justice:
(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed; (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i) To be presumed innocent until proven guilty according to law; (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence; (iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians; (iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality; (v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law; (vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used; (vii) To have his or her privacy fully respected at all stages of the proceedings.78
77 Ibid, art. 40(4). 78 Ibid, art. 40(2).
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Equally significant is the incorporation in the UNCRC framework for youth justice of the fundamental value of the participation of children embodied in the all-important article 12 of the Convention:
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law (emphasis added).79
Aside from the UNCRC, other international rules and guidelines relating to child offenders demonstrate the movement towards the recognition of the participation of children within the youth justice system. These include the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules),80 the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines)81 and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty.82 These international documents insist on opportunities for the participation of children within youth justice policy and, in fact, push for the actual recognition of the participation of child offenders within the system. The statement in the Riyadh Guidelines embodies this mandate:
For the purposes of the interpretation of the present Guidelines, a child-centred orientation should be pursued. Young persons should have an active role and partnership within society and should not be considered as mere objects of socialization or control.83
III. THE YOUTH JUSTICE SYSTEM IN THE PHILIPPINES:
WELFARE AND JUSTICE IN RHETORIC AND REALITY
79 Ibid, art. 12. 80 United Nations General Assembly, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), A/RES/40/33, 96th plenary meeting (1985). 81 United Nations General Assembly, United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), A/RES/45/112, 68th plenary meeting (1990). 82 United Nations General Assembly, United Nations Rules for the Protection of Juveniles Deprived of their Liberty, A/RES/45/113, 68th plenary meeting (1990). 83 The Riyadh Guidelines, supra note 81, guideline 3 under Fundamental Principles.
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This section now traces the history of youth justice policy in the Philippines from the nineteenth century. It shows how laws and policies in the Philippines until the 1990s primarily drew upon a rhetoric of welfare in dealing with child offenders. This welfarist orientation was demonstrated by features such as: the setting of a minimum age of criminal responsibility; the development of a rebuttable presumption that children of certain ages acted without discernment; suspension of sentence; and committal of child offenders to institutions other than jails. The rationalizations used by these laws and policies were essentially to “save” the juvenile offender who was constructed as a victim of circumstances. Within this predominantly welfarist articulation, however, there were also expressions of the justice approach with provisions that aimed to responsibilize dangerous delinquents through a finding of fault and imposition of punishment. For example, the welfarist provisions of certain laws and policies were inapplicable to repeat offenders and to those who committed serious crimes. Thus, there was a distinction created for child offenders who did not deserve to be rescued or were beyond rescue and instead dealt with punitively. The portrayal of child offenders as either innocent victims or dangerous delinquents elicited straightforward responses leading to the dichotomization of the welfare and justice approaches with the understanding that the youth justice system was simply a choice between rescue and punishment.
However, despite this dichotomy between the welfare and justice models at the level of rhetoric, there was, nevertheless, a conflation of understandings at the level of practice where actors on the ground often adopted a harsh justice approach to implement welfarist youth justice laws and policies. Thus, despite the overt rhetoric of welfare, application in practice of these youth justice laws and policies took on a patently punitive justice approach. Children “caught” within a supposedly welfare-oriented youth justice system routinely experienced punishment, suffered incarceration and lived through the stigma of criminality all because such responses “taught them a lesson not to engage in criminal activities, instilled discipline in them and were what they deserved.”84 Ironically, by expanding the reach of the youth justice system through rescue objectives, a wider range of children were dealt with more punitively with their activities criminalized, as seen for example in the violent “rounding up” of street children in the guise of rescuing them. The combination of a rigid dichotomy between the welfare and justice models at
84 Trinidad, et al, supra note 1 at 23.
219 the level of rhetoric and their conflation in practice led to a polarized and inconsistent system of youth justice.
Recognizing this division and incongruence between the welfare and justice models, the law began, at the end of the twentieth century, to reformulate its approach to youth justice by moving towards a more complex and nuanced system that blends elements of both models within an overall framework reflective of the diversity of children’s lives and their participation. The current law, the Juvenile Justice and Welfare Act of 2006, is the culmination of this development in which the principles of both the welfare and justice models are harmonized and their fundamental values re-imagined within a framework that recognizes children’s rights, responsibilities and participation. However, as will be shown in the last part of this section, despite the current law’s endorsement of a new paradigm for youth justice, this very positive development has been overshadowed by the current debates about the 2006 law that are still structured around the dominant understandings and the polarity between the welfare and justice traditions. As such, the discourse on the current law has been pulled back once again to the restrictive question of whether it rescues children or properly punishes offenders.
A. FIRST ARTICULATION OF A YOUTH JUSTICE POLICY:
ORIGINS OF WELFARISM
Owing to the Philippines’ protracted colonial history, many of its laws and policies derive their philosophies from those of the colonial power. The original articulation of a youth justice policy in the Philippines was through a penal law derived from Spain. Despite using the vehicle of a penal law – signifying the basic justice model of crime and punishment – the Spanish Penal Code of 187085 in fact emphasized a distinctive consideration for the welfare of children. Two provisions governed:
Art. 8. The following are not delinquent and are therefore exempt from criminal liability:
x x x
85 This was extended to the Philippines by Royal Order on September 4, 1884 and took effect on December 17, 1886.
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2. A person under nine years of age. 3. A person over nine years of age and under 15, unless he has acted with the exercise of judgment.
The court shall make an express declaration with regard to this point in imposing a penalty or in declaring said person irresponsible.
When the minor is declared irresponsible, in accordance with the provisions of this and of the preceding number, he shall be delivered to his family with a charge to guard and educate him. In the absence of a person to guard or educate him he shall be taken to a charitable institution for the education of orphans and foundlings, and he shall not leave said institution except at the time and under the conditions prescribed for its inmates (emphasis added).86
Art. 84. Upon a person under 15 but over 9 years of age, who is not exempt from liability by reason of the court having declared that he acted with the exercise of judgment, a discretionary penalty shall be imposed, but always lower by two degrees at least than that prescribed by law for the crime which he committed.
Upon a person over 15 and under 18 years of age the penalty shall always be imposed in the proper degree which is next lower than that prescribed by law (emphasis added).87
These provisions, which would be the basis of succeeding laws on child offending, embodied two clear propositions. First, as embodied in the most comprehensive treatise of centuries of Spanish laws, until a certain age, a child “although he might attempt to commit an offense…no man should believe that he could accomplish it, and if he should he would not have sufficient intelligence to understand or know what he was doing.”88 This introduced into youth justice policy the use of age as the marker for “intelligence and understanding” to determine when a child could enter the criminal justice system and begin to be held criminally responsible. Not surprisingly, during this time there was no dispute with regard to the age that the law had set for the commencement of criminal liability or the justification for such determination. As the first articulation of a youth justice policy – more so, the first expression of a minimum age of criminal responsibility – this law was considered a significant step towards the institutionalization of a protective attitude towards children in general and child offenders in particular. The promotion of the welfare of children and child offenders was made even more evident with the use of the language of exemption from criminal responsibility.
86 (1870) The Penal Code, art. 8(2) and (3). 87 Ibid, art. 84. 88 Samuel Parsons Scott, Las Siete Partidas (Chicago: Commerce Clearing House, Inc., 1931) at 1307.
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However, as the subsequent history of youth justice policies reveals, the “appropriate” age when a child can be brought within the reach of the court system and be considered criminally responsible has been a recurring issue. In fact, proponents of both the welfare and justice models have utilized the standard of “competence” to call for the raising or lowering of the minimum age of criminal responsibility.
Second, for a child found liable for an offense, “there should not be inflicted upon him as severe a penalty in person or property as would be inflicted on another person who was older, but a much lighter punishment should be imposed.”89 This was the precursor of the welfarist initiative of “alternative” forms of punishment for child offenders, expressed in this early law as a “discretionary penalty but always lower.” Although a child could be convicted and punished with imprisonment, promoting the welfare of child offenders still meant being “indulgent to the failings of youth”90 by protecting them from the full gravity of criminal punishment. Although one can find in this early law the origins of the welfare approach, it did not completely disregard a justice approach emphasizing responsibility and punishment.
B. SUSPENSION OF JUDGMENT AND ALTERNATIVE FORMS OF COMMITMENT:
INFLUENCES OF THE CHILD-SAVING MOVEMENT
With the arrival of the United States as a new colonial power, youth justice policy in the Philippines was pushed towards a more manifest welfare approach reflecting the influence of the child-saving movement sweeping the U.S. at that time. “Juvenile delinquency” was removed from the penal law and was now governed by a special law dealing with juvenile offenders which saw the introduction of two new principles: first, suspension of the pronouncement of guilt for child offenders; and second, the commitment of child offenders to non-penal institutions such as reformatory, charitable or educational establishments. This further institutionalized a welfarist approach in the country’s youth justice policy.
89 Ibid. 90 Ibid at 1308.
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Act No. 1438 enacted by the Philippine Commission on January 11, 1906 gave the courts discretion to suspend judgment against a minor – males between eight and 16 and females between eight and 18 – found guilty of crimes not punishable by life imprisonment or death. As well, children could be sent to a charitable or educational institution for care and reform instead of to a public prison or jail. The law provided:
Section 1. Whenever any male minor between the ages of eight and sixteen or any female minor between the ages of eight and eighteen shall be found guilty by any court of competent jurisdiction of an offense not punishable by life imprisonment or death, the court, instead of directing the confinement of such minor in any public prison or jail, may, in its discretion, suspend judgment and commit such minor to the custody of any orphan asylum, reform school, charitable society, or society for the prevention of cruelty to children, or to any other charitable or educational institution having for its purpose the care, betterment, reform, or education of minors, until such minor shall have reached his majority or for such less period as to the court may seem proper: Provided, however, That the court prior to making commitment of any minor to any such institution shall take into consideration the religion of the minor and that of his parents or next of kin and shall not commit such minor without the approval of the parents or next of kin to any private institution not under the control and supervision of the religious sect or denomination to which such minor and his parents or next of kin belong (emphasis added).91
At the outset, it should be noted that unlike the previous Spanish Penal Code of 1870, this law did not explicitly state an age for the commencement of criminal responsibility. However, by providing for the manner of treatment of child offenders between the ages of eight and 16 for males and eight and 18 for females, the law implicitly set the minimum age of criminal responsibility. It was implied that children could only enter the criminal court system at the same age at which they could begin to benefit from the provisions on suspension of judgment and commitment to non-penal institutions. The way the law was articulated suggested that the minimum age of criminal responsibility was not an issue, with the real focus being the possibility of the suspension of judgment and the alternative forms of commitment.
While under the Spanish Penal Code of 1870 children could be convicted and punished – although less harshly than adults – this 1906 law allowed courts to suspend judgment and commit the child to a non-penal institution. These new provisions meant that blame did not
91 Act No. 1438 (1906) An Act Providing for the Confinement of Juvenile Offenders Between Certain Ages to Charitable or Educational Institutions Instead of to the Public Prisons or Jails, and for the Transfer of such Offenders from Public Prisons or Jails to such Charitable or Educational Institutions, and for Other Purposes.
223 automatically attach to the child offender found guilty by the courts. The law also recognized the need for the child offender to be cared for, bettered, reformed and educated rather than to be confined in a public prison or jail.
In 1924,92 in an act directed at the care and custody of neglected and delinquent children, the welfarist elements of the law were reinforced when the discretion of the court to grant suspensions of sentence and order alternative forms of commitment was removed, making these provisions mandatory. Also, the law was made applicable to any child under the age of 18, effectively raising the upper age limit for child offenders who would benefit from these provisions. The law provided:
Sec. 3. Whenever any boy or girl less than eighteen years of age shall be accused in any court of an offense not punishable by life imprisonment or death, the court, before passing sentence of conviction, shall suspend all further proceedings in the case and shall commit such minor to the custody of any of the institutions mentioned in sections one and two of this Act, until said minor shall have reached his majority or for such less period as to the court may seem proper, subject to the conditions provided in sections seven hereof, or may allow him to remain and be cared for elsewhere, under probation officer, as hereinafter provided, whom the court may require to report from time to time on the case: Provided, That the court prior to making the commitment of any minor to any private institution shall take into consideration the religion of the minor and that of his parents or next of kin, and avoid his commitment to any private institution not under the control and supervision of the religious sect or denomination to which such minor or his parents or next of kin belong (emphasis added).93
The philosophy behind these provisions was very much reflective of the sentiments of the child- saving movement in the U.S. during the early 1900s which aimed at rescuing the “delinquent, dependent and neglected youth.”94 Platt describes the American situation:
Underlying the juvenile court system was the concept of parens patriae by which the courts were authorized to handle with wide discretion the problems of ‘its least fortunate junior citizens.’ The administration of juvenile justice, which differed in many important respects from the criminal court system, was delegated extensive powers of control over youth. A child was not accused of a crime but offered
92 Act No. 3203 (1924) An Act Relating to the Care and Custody of Neglected and Delinquent Children; Providing Probation Officers Therefor; Imposing Penalties for Violations of its Provisions and for Other Purposes. 93 Ibid, s. 3. 94 Anthony Platt, “The Child-Saving Movement and the Origins of the Juvenile Justice System” in Ronald Berger and Paul Gregory, eds, Juvenile Delinquency and Justice: Sociological Perspectives (Boulder, Colorado: Lynne Rienner Publishers, Inc., 2009) at 17.
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assistance and guidance; intervention in the lives of ‘delinquents’ was not supposed to carry the stigma of criminal guilt….[J]udges…concerned themselves with motivation rather than intent, seeking to identify the moral reputation of problematic children (citations omitted).95
Further describing the American sentiment, Ryerson writes that “the defect which produced juvenile crime lay not so much in the child as in the environment from which he had come and, therefore, that no child should be treated as a criminal.”96 Adopting such an attitude, the Philippine law of 1924 in fact provided:
All provisions of this Act and other laws applicable to minors shall be liberally construed and the judgment of the court and the care, custody, and discipline of the children by the persons in charge of them shall approximate that which they should receive from their parents and they shall be treated, not as criminals, but as in need of aid, encouragement, and guidance (emphasis added).97
Although the Philippine legislature did not create a “special” court for child offenders – as occurred in the U.S. at this time – the concepts it introduced were, in the words of the Philippine Supreme Court in 1925: “[A] necessary measure for the better care of juvenile offenders, providing that they be considered not as common criminals, but as children lacking help, encouragement and guidance in the normal development.”98 The rhetoric of children not being treated as criminals translated into a construction of children as “in need of aid, encouragement and guidance.” This justified the power of the state to “save” these children, leading to a long history of a welfarist inclination in the country’s youth justice policy.
It is important to note, however, that the welfarist orientation of the law embodied in the principles of suspension of sentence and commitment to non-penal institutions did not apply to child offenders who committed serious crimes, i.e., those whose offenses were punishable by life imprisonment or death. This exclusion, reflecting a justice approach of crime and punishment, created a distinction based on the gravity of the offense. Thus, certain child offenders could not benefit from the child-saving objective of the welfare model – either because they did not deserve being rescued or because they were beyond rescue. In these
95 Ibid at 17-18. 96 Ellen Ryerson, “Best-Laid Plans: The Ideal Juvenile Court” in Ronald Berger and Paul Gregory, eds, Juvenile Delinquency and Justice: Sociological Perspectives (Boulder, Colorado: Lynne Rienner Publishers, Inc., 2009) at 28. 97 Act No. 3203, supra note 92, s. 14. 98 Bactoso v. Provincial Governor of Cebu, G.R. No. 24046, Sept. 25, 1925.
225 instances, they had to take responsibility for their actions and face the consequences of punishment. Nevertheless, since the focus of the laws during this time was precisely to save the juvenile offender who needed aid, encouragement and guidance, these laws were principally construed as endorsing a welfarist approach.
C. OVER 40 YEARS OF CARE, CORRECTION AND EDUCATION:
CONTINUING THE WELFARE TRADITION
Six years later, in 1930, youth justice policy was returned to the country’s penal law with the enactment of the Revised Penal Code,99 a situation that would remain for the next 40 years. This return to penal law might have intimated a justice approach with a focus on crime and punishment, however, there was still a markedly welfarist orientation to this move. As was true of the original Spanish Penal Code of 1870, the provisions governing child offenders in this penal law were again expressed as exemptions to criminal liability, indicating a continuation of the welfarist justifications in the law. More significantly, the welfare approach was even further established by extending the welfarist provisions of suspension of sentence and alternative forms of commitment to all child offenders regardless of the nature or gravity of the offense.
In its Article 12, the Revised Penal Code provided:
Article 12. Circumstances which exempt from criminal liability. — The following are exempt from criminal liability:
x x x
2. A person under nine years of age. 3. A person over nine years of age and under fifteen, unless he has acted with discernment, in which case, such minor shall be proceeded against in accordance with the provisions of Art. 80 of this Code.
When such minor is adjudged to be criminally irresponsible, the court, in conformably with the provisions of this and the preceding paragraph, shall commit him to the care and custody of his family who shall be charged with his surveillance and education otherwise, he shall be committed to the care of some institution or person mentioned in said Art. 80 (emphasis added).100
99 Act No. 3815 (1930) An Act Revising the Penal Code and Other Penal Laws [Revised Penal Code]. 100 Ibid, art. 12.
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Also, the provisions introduced in 1906 and 1924 for the suspension of sentence of child offenders and their commitment to a benevolent or charitable institution were retained, but this time without qualification as to the nature or gravity of the crime for a child offender to benefit from the law. The law provided:
Article 80. Suspension of Sentence of Minor Delinquents. — Whenever a minor under eighteen101 years of age, of either sex, be accused of a crime, the court, after hearing the evidence in the proper proceedings, instead of pronouncing judgment, shall suspend all further proceedings and shall commit such minor to the custody or care of a public or private, benevolent or charitable institution, established under the law for the care, correction or education of orphaned, homeless, defective and delinquent children, or to the custody or care of any other responsible person in any other place subject to visitation and supervision by the Public Welfare Commissioner or any of his agents or representatives, if there be any, or otherwise by the superintendent of public schools or his representatives, subject to such conditions as are prescribed hereinbelow, until such minor shall have reached his majority or for such less period as the court may deem proper (emphasis added).102
As with the original Spanish Penal Code of 1870, this Revised Penal Code explicitly declared nine as the minimum age of criminal responsibility. However, because of the presence of the welfarist provisions with respect to suspension of sentence and alternative forms of commitment, there was little concern that the age was set too low. By suspending the pronouncement of guilt, the youth justice system was allowed to shield the child from the stigma of criminal guilt. Also, through the process of commitment to a non-penal institution, the delinquent child – who the law saw as sharing the characteristics of an “orphaned, homeless and defective child” – would be rescued by being “cared for, corrected and educated.” The objective of providing for the care, correction and education of child offenders through alternative forms of commitment not only upheld the principle of the welfare of the child but also responded to the “needs” of the child which were understood as the cause of the offending in the first place. Most importantly, as evidence of the clear endorsement of a welfarist approach to the system of youth justice, the welfarist provisions of the law now applied to all child offenders regardless of the nature or gravity of the offense.
101 However, this age was lowered in 1946 to benefit only a minor of either sex under sixteen years of age. Republic Act No. 47 (1946) An Act to Amend Article Eighty of the Revised Penal Code, As Amended. 102 Revised Penal Code, supra note 99, art. 80.
227
Previously, the Spanish Penal Code of 1870 had introduced the principle that a child between the ages of nine and 15 could be held criminally responsible if there was an “exercise of judgment.” In the Revised Penal Code, this was reformulated into the principle of a child acting with “discernment.” With this principle, the law was seen to provide yet another layer of protection for children over the age of nine and under 15, who committed criminal acts but could not be considered criminally liable due to deficiencies in their understanding of right and wrong. This concept of discernment is similar to the common law principle of doli incapax which extended to children above the minimum age of criminal responsibility the benefit of a rebuttable presumption that they could not distinguish between right and wrong and were thus incapable of committing a crime.103
D. YOUTH JUSTICE POLICY IN CHILD WELFARE LAW:
WELFARE AND ITS INTRUSIVE REACH
After more than 40 years of being governed by the Revised Penal Code, youth justice policy expanded its reach when it was removed from the penal law and reintroduced in the country’s all-encompassing child welfare law. The articulation of youth justice policy in the country’s Child and Youth Welfare Code104 in 1974 marked a broadening of the scope of the welfare approach: dealing with child offenders was now to be seen as a matter of child protection. This placement of the youth justice system within the country’s welfare law meant an increased protection of the welfare of child offenders. More children were brought within the purview of the justice system to “protect” their welfare and a wider range of children’s activities were now monitored and scrutinized to prevent delinquency. However, with the widening reach of the youth justice policy also came an expansion of the discretionary power of the state to intrude into the lives of children. Most tellingly, this increasingly intrusive reach of the youth justice system under the banner of welfare and protection exposed the essentially punitive way that youth justice laws and policies were actually being implemented, informed by often extreme versions of a justice oriented approach that insisted on imposing responsibility, blame and punishment – especially incarceration. Ironically, the move to place youth justice policy within
103 See e.g. Stephanie Millet, “The Age of Criminal Responsibility in an Era of Violence: Has Great Britain Set a New International Standard?” (1995) 28 Vand J Transnat’l L 295. 104 Child and Youth Welfare Code, supra note 18.
228 the welfare law criminalized more activities of children, exposing more of them to the punitive treatment that child offenders had been experiencing in practice.
In unequivocal terms, the 1974 Child and Youth Welfare Code mandated that “in all questions regarding the care, custody, education and property of the child, [his/her] welfare shall be the paramount consideration.”105 The law not only provided for the protection and care of youthful offenders, it also put in place an entire mechanism for the prevention of child delinquency. Primarily, the law defined a youthful offender as “one who [was] over nine years but under twenty-one years of age at the time of the commission of the offense.”106 Thus, a child nine years of age or under at the time of the offense was exempt from criminal liability.107 Such child was to be committed “to the care of his or her father or mother, or nearest relative or family friend in the discretion of the court and subject to its supervision.”108 The same was to be done for a child over the age of nine and under 15 who acted without discernment.109 For those considered criminally responsible and found liable, the provisions on suspension of sentence and alternative forms of commitment again applied:
Article 192. Suspension of Sentence and Commitment of Youthful Offender. - If after hearing the evidence in the proper proceedings, the court should find that the youthful offender has committed the acts charged against him the court shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court shall suspend all further proceedings and shall commit such minor to the custody or care of the Department of Social Welfare, or to any training institution operated by the government, or duly licensed agencies or any other responsible person, until he shall have reached twenty-one years of age or, for a shorter period as the court may deem proper, after considering the reports and recommendations of the Department of Social Welfare or the agency or responsible individual under whose care he has been committed.
The youthful offender shall be subject to visitation and supervision by a representative of the Department of Social Welfare or any duly licensed agency or such other officer as the Court may designate subject to such conditions as it may prescribe (emphasis added).110
105 Ibid, art. 8. 106 Ibid, art. 189. 107 Ibid. 108 Ibid. 109 Ibid. 110 Ibid, art. 192.
229
The Child and Youth Welfare Code advanced its welfare objectives for child offenders in several ways. First, the welfare provisions extended to children from the ages of nine to 21. This raised the upper limit of those who would benefit from the law. The wider definition of youthful offenders expanded the welfare benefits to as many children as possible. Second, the law afforded protection to those above the minimum age of criminal responsibility of nine but below 15 with the rebuttable presumption that they acted without discernment and were thus criminally irresponsible. Third, those child offenders below the age of criminal responsibility and those found criminally irresponsible (i.e., those who acted without discernment) were still rescued by being committed to their parents or relatives under the supervision of the court. Fourth, as provided for previously, youthful offenders found criminally liable were to benefit from the suspension of the pronouncement of the judgment of conviction and commitment to non-penal institutions, such as the Department of Social Welfare, or any training institution operated by the government or duly licensed agencies or any other responsible person. Fifth, the benefits of suspension of sentence and alternative forms of commitment were mandatory, at least when the law took effect. Finally, sixth, these benefits applied regardless of the nature or gravity of the offense of the child offender, again at least when the law took effect. Reflecting the constant interplay between welfare and justice, it should be noted, however, that some of these protections were subsequently rolled back. The law was amended three years later, in 1977, to remove the automatic operation of the suspension of judgment and commitment to non-penal institutions adding the condition that the court may grant these benefits “upon application of the youthful offender if it [the court] finds that the best interest of the public as well as that of the offender will be served thereby.”111 As well, the amendatory law excluded from these welfarist provisions “a youthful offender who has once enjoyed suspension of sentence…or…one who is convicted of an offense punishable by death or life imprisonment.”112
Because the youth justice system was now embodied in the welfare law, there was a liberal articulation of the welfarist provisions that protected child offenders. However, with the increased protection of the “welfare” of child offenders also came an expansion of the intrusive reach of youth justice policy into the lives of children. This affected children in two respects:
111 Presidential Decree No. 1179 (1977) Amending Certain Provisions of Chapter Three, Title Eight of Presidential Decree Numbered Six Hundred and Three Otherwise Known as the Child and Youth Welfare Code and for Other Purposes, s. 2. 112 Ibid.
230 first, a wider range of children’s activities were now either monitored to prevent delinquency or actually brought within the purview of the youth justice system by being criminalized; and second, more children including predelinquent children, sometimes referred to as “children at risk”, became entangled with the youth justice system.
The first effect of the widening reach of the youth justice system through its welfarist policy was the closer monitoring of as many activities of children as possible. The lines between acts that were criminal and those that were considered “harmful” to the welfare of children became blurred. This signified a movement to bring “within the ambit of government control a set of youthful activities that had been previously ignored or dealt with on an informal basis.”113 For example, to prevent child offending, the Child and Youth Welfare Code mandated parents to monitor and supervise the “innocent” daily activities of children, including their recreation.114 Thus, the Code in its arts. 52-55 provided as follows:
Art. 52. Association with Other Children – Parents shall encourage the child to associate with other children of his own age with whom he can develop common interests of useful and salutary nature. It shall be their duty to know the child's friends and their activities and to prevent him from falling into bad company. The child should not be allowed to stay out late at night to the detriment of his health, studies or morals.
Art. 53. Community Activities – Parents shall give the child every opportunity to form or join social, cultural, educational, recreational, civic or religious organizations or movements and other useful community activities.
Art. 54. Social Gatherings – When a party or gathering is held, the parents or a responsible person should be present to supervise the same.
Art. 55. Vices – Parents shall take special care to prevent the child from becoming addicted to intoxicating drinks, narcotic drugs, smoking, gambling, and other vices or harmful practices.115
When children stepped into public spaces, beyond the reach of parental supervision, their mere presence (reformulated as loitering or vagrancy) set into motion the youth justice system. Curfew regulations, sanctioned by law116 specifically targeted children by restricting their movement and activities. A number of major cities in the National Capital Region (NCR),
113 Platt, supra note 94 at 18-19. 114 Child and Youth Welfare Code, supra note 18, art. 46(3). 115 Ibid, arts. 52-55. 116 Ibid, art. 139.
231 including the capital of Manila, in fact implemented curfew regulations against children.117 These regulations usually ranged from the hours of 10 p.m. to 4 a.m., during which time children were not allowed in public places or any other area outside the immediate vicinity of their residence.118 Violations of curfew regulations elicited sanctions ranging from reprimand to imprisonment of up to 10 days for repeat offenders. By regulating the movement of children, the state was, in fact, “protecting” children from engaging in activities that were not considered “lawful” – thus “harmful.”
A number of cities and municipalities also implemented anti-vandalism laws. These regulations attempted to curb the defacing of any private or public property through painting, writing, scribbling, scrawling, drawing, smearing, colouring, stamping or inscribing. These laws were premised on the belief that acts of vandalism were signs of disorder in a community and an open and direct challenge to authorities. As such, children had to be removed from the ambit of such dangerous activities. Some other welfarist regulations that “criminalized” activities of children included:119
• an indecent exposure and disorderly behavior ordinance in Manila;120 • a prohibition on the selling of merchandise on the streets; • a regulation disallowing the playing of video games during the hours of school or beyond 8pm; • prohibitions against the use of roller skates and skateboards on national and city roads; • an anti-toy gun ordinance which prohibited the sale or possession of metal or plastic toy guns capable of being fired with the use of plastic pellet bullets;121 and • in some jurisdictions, prohibitions against kite flying.
These legal provisions were clear examples of what Handler and Rosenheim have described as the expansion of the definition of delinquency to include:
117 Adhikain Para sa Karapatang Pambata Ateneo Human Rights Center, Research on the Situation of Children in Conflict With the Law in Selected Metro Manila Cities (Quezon City, Philippines: Save the Children UK, 2004) [Children in Conflict with the Law in Metro Manila]. These curfew regulations were enacted from the late 1970s to the early 2000s. 118 Some exceptions to the curfew regulations included: children who were accompanied by their parents; those running “lawful” errands; those studying at night schools and those lawfully working. From this, there was a clear sense of what activities the State viewed as “proper” for children. 119 Children in Conflict with the Law in Metro Manila, supra note 117. 120 “Indecent exposure” was dressing in lewd attire not in consonance with the customs and traditions of the people, and which invited/induced the public to sexual pleasure, or enticed them to offensive and scandalous behaviour while “disorderly behavior” referred to a drunken, boisterous, rude or indecent manner. 121 The ordinance was a result of incidents where “unscrupulous teenagers or adults” had used such toys, which appear to be real guns, in committing crimes.
232
[Violations] of vaguely defined catchalls that seem to express the notion that the adolescent, if allowed to continue, will engage in more serious conduct. In this latter category, one finds statutes proscribing associations with ‘vicious or immoral’ persons, running away from home ‘without just cause,’ and using vile, obscene, or vulgar language, as well as conduct leading to the conclusion that the youth is ‘incorrigible,’ ‘disorderly,’ ‘given to sexual irregularities,’ ‘beyond the control of parent or guardian’ or that he ‘so deports himself as willfully to injure or endanger the morals or health of himself or others.’122
Furthermore, the expanded reach of the welfarist agenda of youth justice policy also saw the entanglement of more children in the protective efforts of the law. Youth justice policy not only dealt with juvenile delinquents but also with predelinquent children – “children who occupy the debatable ground between criminality and innocence.”123 The impression created was that youth justice policy could accurately predict and identify those headed towards a “criminal career.” This led to specific children – and their activities – being targeted and labeled as “criminal.”
One of the largest and most visible groups of predelinquent children that the youth justice system targeted was street children. The term “street children” in the Philippines has been used to describe “young boys and girls (under the age of 18) who consider the streets their home and source of livelihood.”124 Although it has been difficult to establish the number of street children,125 estimates have ranged from 45,000126 to as many as 200,000.127 In addition to living on the street, street children also work and engage in what are perceived to be “high-risk” behaviors.128 In response, a number of national laws and municipal ordinances were enacted
122 Handler and Rosenheim, supra note 40 at 395. 123 Platt, supra note 94 at 18. 124 Henry Ruiz, A Study of Policies and Programmes in the Philippines Addressing the Right of Street Children to Education (Philippines: Child Hope Asia Philippines, 2006). 125 Ibid at 11. Ruiz explains: “It has always been difficult to establish the correct number of street children in the Philippines especially because of their constant mobility and vacillating nature. Street children are not usually counted, nor subject to census, so their numbers are not usually known. Some of them are highly visible. Some of them work on the streets under cover of darkness. Moreover, their experiences overlap with other categories of children, such as those who are trafficked and those engaged in exploitative work. This reality further complicates the problem of counting them.” 126 Ibid at 12. 127 Ibid. In considering the Third and Fourth Periodic Reports submitted by the Philippines in 2009 to the Committee on the Rights of the Child under the UNCRC, the Committee estimated the number of children living in the streets in the Philippines to nearly 250,000. United Nations Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention Concluding Observations: The Philippines, CRC/C/PHL/CO/3-4, 52nd Sess (2009) at 21, par. 74. 128 Catherine Scerri, Sagip or Huli?: Rescue of Street Children in Caloocan, Manila, Pasay and Quezon City (Manila: Bahay Tuluyan and UNICEF Philippines, 2009).
233 with the aim of using the youth justice system to protect the welfare of these children.129
Most children on the streets entered the youth justice system through the catch-all penal provision on vagrancy.130 Beginning in 1930, the Revised Penal Code penalized vagrants.131 The goal of charging street children under the vagrancy provisions was to protect the welfare of these “disadvantaged” children. However, this was done by stigmatizing their realities and labeling their activities as criminal. The Mendicancy Law of 1978132 went further and made begging, one of the main activities of street children, punishable under the law. The child-saving approach of this law was made clear in the preamble in which it was stated that mendicancy “[bred] crime, [created] traffic hazards, [endangered] health, and [exposed] children to indignities and degradation.”133 To “save” children from this dreadful condition – and prevent criminality in the process – they were brought into the youth justice system.134
129 See discussion in the previous Chapter on Labor where street children as workers – having become so commonplace – are, in fact, ignored by labor laws. As such, they are dealt with by the state through the criminal justice system. 130 Scerri, supra note 128. 131 Revised Penal Code, supra note 99, art. 202 provides: Vagrants and prostitutes; penalty. — The following are vagrants: 1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself to some lawful calling; 2. Any person found loitering about public or semi-public buildings or places or trampling or wandering about the country or the streets without visible means of support; 3. Any idle or dissolute person who ledges in houses of ill fame; ruffians or pimps and those who habitually associate with prostitutes; 4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose; 5. Prostitutes. For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes. Any person found guilty of any of the offenses covered by this articles shall be punished by arresto menor [Arresto Menor is a considered a light penalty the duration of which is imprisonment from one day to 30 days.] or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor [Arresto Mayor is a considered a correctional penalty the duration of which is imprisonment from one month and one day to six months.] in its medium period to prision correccional [Prision Correccional is a considered a correctional penalty the duration of which is imprisonment from six months and one day to six years.] in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court. 132 Presidential Decree No. 1563 (1978) Establishing an Integrated System for the Control and Eradication of Mendicancy, Providing Penalties, Appropriating Funds Therefor, and for Other Purposes [Mendicancy Law of 1978]. 133 Ibid, 2nd whereas clause. 134 Ibid, s. 4 provides: Section 4. Apprehension Of And Services For Persons Found Begging. Any infants or child 8 years old and below who is found begging or is being utilized by a mendicant for purposes of begging shall be apprehended as a neglected child under Article 141 of PD 603 and shall be committed to the custody and care of the Department of Social Services and Development or to any duly licensed
234
Another welfarist response of youth justice policy specifically targeting street children was the enactment of a law to save them from volatile substances used to induce intoxication. “Sniffing rugby” was tagged as a widespread activity among street children where a solvent-like solution (a common brand is “Rugby”) was inhaled to induce intoxication. A 1978 law prohibited such activity, specifically to curtail this common practice among street children as it “[induced] dependency, self-destructive and anti-social acts…and [led] to the use of other drugs.135
The targeting of predelinquent children, particularly street children and their activities, echoed the claim of the original child-saving movement in the U.S. that the youth justice system “could transform potential criminals into respectable citizens by training them in ‘habits of industry, self-control and obedience to law.’”136 Ryerson writes:
By blurring the distinctions between dependent, neglected, and delinquent children, by minimizing questions of guilt or innocence of specific acts, and by including in the definition of delinquency noncriminal conduct, the juvenile court reformers were intentionally advocating a jurisdiction for the court which would augment the power of the state to intervene in the lives of children and in the relationships between the children and their parents.137
Ultimately, the expansive reach of the youth justice system brought a significant development: it highlighted the way in which youth justice laws and policies were actually being implemented.
child placement agency or individual. Any minor over 9 years of age under 15 found begging or is being utilized for purposes of begging and who acted without discernment shall be apprehended as a neglected child under Article 141 of Presidential Decree No. 603 and shall be committed to the custody and care of the Department of Social Services and Development or to any duly licensed placement agency or individual. Any minor over 9 years of age and under 15 who is found begging or is being utilized for the purpose of begging and who acted with discernment shall be proceeded against in accordance with the provisions of Chapter 3, Title VIII of Presidential Decree No. 603 [referring to Youthful Offenders] (emphasis added). [This means that a child over nine years of age but under 15 found begging and who acted with discernment shall be considered a youthful offender. As such, the child shall be entitled to a suspension of the pronouncement of guilt and shall be committed to the Department of Social Welfare or any other similar institution.] Any person not otherwise covered in the preceding paragraph of this Section who is found begging and who is physically or mentally incapable of gainful occupation shall be provided the integrated package of services by the Department of Social Services and Development, the Welfare units of local governments and other cooperating agencies. 135 Presidential Decree No. 1619 (1979) Penalizing the Use or Possession or the Unauthorized Sale to Minors of Volatile Substances for the Purpose of Inducing Intoxication or in Any Manner Changing, Distorting or Disturbing the Auditory, Visual or Mental Process, 2nd whereas clause. 136 Platt, supra note 94 at 18. 137 Ryerson, supra note 96 at 34.
235
The reality was that despite the rhetoric of welfare in youth justice laws and policies, they were implemented punitively with reliance on ideas rooted in the justice model, indeed often extreme harsh versions of that model, that insisted on imposing responsibility, blame and punishment – especially incarceration. Ironically, expansion of the welfarist objectives envisioned by the Child and Youth Welfare Code exposed more children to the punitive treatment that child offenders were actually experiencing.
E. BLURRING THE LINES BETWEEN WELFARE AND JUSTICE:
SEEDS OF THE EMERGING PARADIGM
In the 1990s, after the Philippines’ signing onto and ratification of the UNCRC, youth justice laws and policies began to respond to the apparent dichotomy between the welfare and justice approaches and the incongruence between rhetoric and practice.138 Laws and policies began to acknowledge the values of both the welfare and justice models and to gradually harmonize the two, paving the way for a more radical reformulation of the youth justice system a decade later. As laws and policies affirmed their commitment to uphold the welfare of child offenders, at the same time, they institutionalized a formal system of justice in which the rights of children were primary.
In 1995, after the expansive welfarist approach of the Child and Youth Welfare Code had been in place for 20 years, the Council for the Welfare of Children (CWC) finally enacted the Rules139 to implement that same Code. Primarily trying to address the conflation between welfare and justice in the implementation of the law, the CWC established basic guidelines on the apprehension, investigation, prosecution and rehabilitation of youth offenders consistent with the need to protect their rights and promote their best interests. On the one hand, these Rules maintained the welfarist provisions of the Child and Youth Welfare Code – specifically those relating to minimum age of criminal responsibility;140 referral of children
138 This inconsistency between rhetoric and reality will be discussed in detail in the immediately succeeding sub- section to provide a context for the current law. 139 Rules and Regulations Pursuant to Article 209 of Presidential Decree No. 603, The Child and Youth Welfare Code, as Amended (1995) Rules and Regulations on the Apprehension, Investigation, Prosecution and Rehabilitation of Youth Offenders. 140 Ibid, s. 21 provides: Exemption from Criminal Liability. – If the youth who is alleged to have committed an offense is nine years of age or under at the time of the commission of the offense, he shall be exempt from
236 to a social worker for supervision, counseling or some other intervention measures or services;141 and suspension of sentence.142 But equally important, within this welfarist approach, the intrusive reach of youth justice was circumscribed by a system whereby the legal rights of child offenders were recognized and protected. Specifically, the Rules provided protections with respect to the manner of apprehension;143 the investigation process;144 and commitment to a penal institution;145 and also recognized the legal rights of
criminal liability and shall be committed by the judge to the care of his parents, or nearest relative or family friend in the discretion of the court and subject to its supervision. The same shall be done for a child over nine years and under fifteen years of age at the time of the commission of offense, unless he acted with discernment. 141 Ibid, s. 8 provides: Referral of Case to Social Worker. – After consultations with the Department and if the interest of the youth will be served thereby, the arresting officer shall release the youth to the custody of a social worker or a responsible person in the community for supervision, counseling or provision of other intervention measures or services. 142 Ibid, s. 21 provides: Suspension of Sentence. – If, after hearing, the court finds that the youth committed the acts charged against him, the court shall determine the imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court upon application of the youth offender and if it finds that the best interest of the public as well as that of the offender will be served thereby, shall suspend all further proceedings and shall commit the youth offender to the custody or care of the Department, or to any training institution operated by the Government, or any other responsible person, until he has reached twenty-one years of age, or for a shorter period as the court may deem proper after considering the reports and recommendation of the Department, or the government training institution, or responsible individual under whose care the youth offender had been committed. 143 Ibid, s. 4 provides: Apprehension of Youth. – Whenever a youth is taken into custody for an alleged act of delinquency, the arresting police officer shall immediately inform the youth of the reason for his apprehension and advise the youth of his legal rights in a language that is understood. If the arresting police officer is not in uniform, he shall identify himself to the youth and present identification papers. Thereafter, the youth shall be brought immediately to the nearest police station where the apprehension, including the name of the arresting officer, shall be recorded in the police blotter. The police shall notify the Department and the parents or guardian of the youth of the cause or reason of apprehension is made. Also, s. 5 provides: Manner of Apprehension of Youth. – The arresting police officer shall not employ unnecessary force in arresting or searching the youth. A female youth shall only be searched by a female police officer. Vulgar or profane words shall not be used. Unless absolutely necessary, handcuffs or other instruments of restraint shall not be used on the child. 144 Ibid, s. 6 provides: Investigation/Interview of Youth. – A youth shall only be investigated or his statement secured in the presence of his legal counsel and whenever possible his parents, guardian or a social worker. The parents or guardian shall be informed of the nature of the offense allegedly committed by the youth and advised of the right of the youth to remain silent and to have competent legal counsel preferably of his own choice. The interview of the child shall, as far as practicable, be held privately. 145 Ibid, s. 30 provides: Commitment to Penal Institution for Service of Sentence. – A youth offender who is under twenty one years of age at the time of the pronouncement of the judgment of conviction shall be committed to the proper penal institution to serve the remaining period of his sentence. Whenever practicable, the convicted youth offender shall be completely segregated from adult offenders and grouped
237 child offenders, especially the right to counsel146 and the right to privacy.147 In its straightforward articulation, the Rules were espousing a welfarist approach within a system that recognizes and protects the rights of children. As such, it began blurring the lines between welfare and justice and was moving – though preliminarily – towards an emerging paradigm that dissociates rights protection from a punitive justice model.
A few years after the CWC promulgated its Rules, the Family Courts Act of 1997148 was enacted establishing a separate system of courts – the “Family Courts” – to hear and decide cases involving a range of family issues, including criminal cases involving children.149 With the establishment of a court system that specifically deals with child offenders, the dichotomy between the welfare and justice models diminished even more. On the one hand, the law acknowledges the duty of the state to promote the welfare of children by taking into account their peculiar circumstances.150 As such, the law also reaffirms the welfarist provisions in the Child and Youth Welfare Code specifically relating to suspension of sentence and alternative forms of commitment. It mandates that the sentence of a child offender found guilty of any
according to age levels, pathological or behavioral tendencies or other suitable criteria to ensure his speedy rehabilitation. 146 Ibid, s. 10 provides: Right of Youth to Counsel. – The arresting officer, prosecutor or judge shall ensure that the youth is represented by counsel before proceeding with the investigation or trial. Counsel shall be assigned to represent the youth if his parents or guardian are unable to give him adequate representation. 147 Ibid, s. 33 provides: Records of Proceedings before a Prosecutor or Municipal Judge. – Where a youth has been charged before any prosecutor or before a municipal judge for the commission of an offense and the charges have been ordered dropped, all the records pertaining thereto, irrespective of the results of the proceedings, shall be considered as privileged and may not be disclosed directly or indirectly to any person for any purpose whatsoever. As well, s. 34 provides: Case Records. – Where a youth has been charged before the court and after the trial is acquitted, or if the case against him is dismissed, or if he is committed to a training institution and is subsequently released pursuant to Section 25 of these Rules, all the records of his case shall be considered as privileged and may not be disclosed directly or indirectly to anyone except to the extent necessary to answer inquiries received from — a. another court or from the Department or other government agency to determine if the youth offender may have his sentence suspended or if he may be granted probation under the provisions of the Probation Law; or b. from any victim of the youth offender, or if the victim is deceased, from the legal heirs of such victim, relating to the final disposition of the civil case filed against the youth offender in connection with the offense committed by the latter. 148 Republic Act No. 8369 (1997) An Act Establishing Family Courts, Granting Them Exclusive Original Jurisdiction Over Child and Family Cases, Amending Batas Pambansa Bilang 129, as Amended, Otherwise Known as Act of 1980, Appropriating Funds Therefor and for Other Purposes [Family Courts Act of 1997]. 149 Ibid, s. 5(a). 150 Ibid, s. 2.
238 offense “shall be suspended without need of application.”151 With respect to the alternative forms of commitment, aside from the institutions mentioned in the Child and Youth Welfare Code, the law also specifically provides for alternatives to detention and institutional care. These include counseling, recognizance, bail, community continuum, or diversions from the justice system.152
Also reflective of the welfare perspective is the underlying principle of family courts that child offending has a strong and direct relationship with issues relating to the family. The same family court, in fact, has jurisdiction over cases involving annulment and declaration of nullity of marriages; guardianship; custody of children; support; adoption; child abuse; petitions for declaration of status of children as abandoned, dependent or neglected; petitions for voluntary or involuntary commitment of children; the suspension, termination, or restoration of parental authority; and other similar cases.153
On the other hand, however, the creation of a separate court for children also institutionalized a formal system of justice that clearly attributes responsibility. Such attribution of responsibility is done within a family court system where children are now clearly recognized as rights bearers. Thus, the institution of the family courts is a demonstration of a youth justice system that protects the welfare of child offenders but at the same time attributes responsibility – not necessarily tied to punishment – within a scheme of rights. The coming together of the welfare and justice approaches signifies that the legal rights held by children in conflict with the law transcend both models and are held by them irrespective of their needs and circumstances or deeds and responsibility.
In a major development in 2002, the Philippine Supreme Court, through an en banc resolution, moved more explicitly into the harmonization of the welfare and justice approaches. With the UNCRC as a major influence, the Court shifted the youth justice system in the direction of the emerging paradigm and clearly paved the way for the major reformulation of youth justice law in 2006. The Rule on Juveniles in Conflict with the Law (2002 SC Rules)154 was an explicit
151 Ibid, s. 5(a). 152 Ibid, s. 8. 153 Ibid, ss. 5(b)-(k). 154 A.M. No. 02-1-18-SC (2002) Rule on Juveniles in Conflict with the Law.
239 espousal of values that have characterized both approaches to youth justice policy. Evident in this pronouncement was a balancing of interests. On the one hand, the child offender was recognized as having distinct characteristics as a child. Thus, the 2002 SC Rules recognized a basic concern for the welfare of child offenders. However, at the same time they acknowledged an attribution of responsibility within a system where rights were fundamental. The system of youth justice then was not necessarily directed at either the rescue of the “innocent” child or the attribution of individual responsibility within the context of blame or punishment for the “delinquent” child. Instead, echoing the language of the UNCRC, the 2002 SC Rules reformulated youth justice as a system that “treats every juvenile in conflict with the law in a manner that recognizes and upholds his human dignity and worth”155 Within this reformulation, welfare and justice were understood within a context that emphasized instilling “respect for the fundamental rights and freedom of others” and taking into account the child’s, “developmental age” and the “desirability of…reintegration into and assumption of a constructive role in society in accordance with the principle of restorative justice.156
In its understanding of welfare, the 2002 SC Rules was guided by the fundamental principle of “remov[ing] from juveniles in conflict with the law the stigma of criminality and the consequences of criminal behavior.”157 This was realized through the diversion from the justice system of “juveniles who can be cared for or placed under community-based alternative programs of treatment, training and rehabilitation in conformity with the principle of restorative justice.”158 The 2002 SC Rules provided for diversion proceedings for less serious offences,159 offering mechanisms whereby the child would not be brought within a rigid court system but instead referred to alternative measures or services offered by non-court institutions.160 For
155 Ibid, s. 2. 156 Ibid. 157 Ibid, s. 2(d). 158 Ibid, ss. 2(b). 159 Ibid, ss. 20-21. The diversion proceedings were for child offenders charged with offenses where the maximum penalty imposed by law is imprisonment of not more than six (6) months, regardless of fine or fine alone regardless of amount. Such proceedings considered the following factors: The record of the juvenile on his conflict with the law; Whether the imposable maximum penalty of the offense is more than six (6) months, regardless of fine; or only a fine, regardless of amount; Whether the juvenile is an obvious threat to himself and/or the community; Whether the juvenile is unrepentant; Whether the juvenile or his parents are indifferent or hostile; and Whether the juveniles’ relationships with his peers increase the possibility of delinquent behavior. 160 Ibid, s. 22 provides: Diversion Programs. – The diversion program designed by the Committee shall be distinct to each juvenile in conflict with the law limited for a specific period. It may include any or a combination of the following:
240 those who could not avail themselves of diversion proceedings and who were eventually found criminally responsible by the court, the 2002 SC Rules provided for the automatic suspension of sentence, except for the most serious offences,161 and disposition measures best suited for the rehabilitation and welfare of the child offender.162
On the other hand, with respect to the justice approach, the 2002 SC Rules also clearly incorporated the principle of attribution of responsibility. Such responsibility was understood within the framework of instilling “respect for the fundamental rights and freedoms of others.”163 Thus, diversion programs provided for in the 2002 SC Rules were described as “alternative child-appropriate process[es] of determining the responsibility and treatment of a juvenile in conflict with the law on the basis of his social, cultural, economic, psychological or educational background without resorting to formal court adjudication.”164 This signified that the 2002 SC Rules did not undermine the principle of responsibility but instead reformulated it within the individual context of the child and the demands of restorative justice. The 2002 SC Rules provided that in instances where there is a finding of criminal responsibility, judgment against the child shall be guided by the following:
a) Written or oral reprimand or citation; b) Return of property; c) Payment of the damage caused; d) Written or oral apology; e) Guidance and supervision orders; f) Counseling for the juvenile and his family; g) Training, seminars and lectures on (i) anger management skills; (ii) problem-solving and/or conflict resolution skills; (iii) values formation; and (iv) other skills that will aid the juvenile to properly deal with situations that can lead to a repetition of the offense; h) Participation in available community-based programs; i) Institutional care and custody; or j) Work-detail program in the community. 161 Ibid, s. 32 provides: The sentence shall be suspended without need of application by the juvenile in conflict with the law….The benefits of suspended sentence shall not apply to a juvenile in conflict with the law who has once enjoyed suspension of sentence, or to one who is convicted of an offense punishable by death, reclusion perpetua or life imprisonment, or when at the time of promulgation of judgment the juvenile is already eighteen (18) years of age or over. 162 Ibid. Disposition measures may include: [1.] care, guidance, and supervision orders; [2.] drug and alcohol treatment; [3.] participation in group counseling and similar activities; [4.] commitment to the Youth Rehabilitation Center of the DSWD or other centers for juvenile in conflict with the law authorized by the Secretary of the DSWD 163 Ibid, s. 2. 164 Ibid, s. 4(f).
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1. It shall be in proportion to the gravity of the offense, and shall consider the circumstances and the best interests of the juvenile, the rights of the victim, the needs of society in line with the demands of restorative justice. 2. Restrictions on the personal liberty of the juvenile shall be limited to the minimum. Where discretion is given by law to the judge to determine whether the penalty to be imposed is fine or imprisonment, the imposition of the latter should be preferred as the more appropriate penalty. 3. No corporal punishment shall be imposed.165
Within these understandings of welfare and justice, the 2002 SC Rules clearly laid out the substantive and procedural rights166 of child offenders, insisting, once again, on the harmonization of both approaches through “a procedure in the adjudication of juveniles in conflict with the law that takes into account their distinct circumstances and assures the parties of a fair hearing with their constitutional and statutory rights and recognized and respected (emphasis added).”167 In envisioning both a fair adjudicative process and one that takes into account the distinct circumstances of the child, the 2002 SC Rules clearly demonstrated a blurring of the sharp lines between the welfare and justice approaches where rights protection was now dissociated from a punitive justice model.
165 Ibid, s. 30. 166 Ibid, s. 26 provides: Duty of the Family Court to Protect the Rights of the Juvenile. – In all criminal proceedings in the Family Court the judge shall ensure the protection of the following rights of the juvenile in conflict with the law: (a) to be presumed innocent until the contrary is proved beyond reasonable doubt; (b) to be informed promptly and directly of the nature and cause of the charge against him, and if appropriate, through his parents or legal guardians; (c) to be present at every stage of the proceedings, from arraignment to promulgation of judgment. The juvenile may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence at the trial is specifically ordered by the court for purposes of identification. The absence of the juvenile without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When the juvenile under custody escapes, he shall be deemed to have waived his right to be present in all subsequent hearing until custody over him is regained; (d) to have legal and other appropriate assistance in the preparation and presentation of his defense; (e) to testify as a witness in his own behalf and subject to cross-examination only on matters covered by direct examination, provided that the Rule on the Examination of a Child Witness shall be observed whenever convenient and practicable. The juvenile shall not be compelled to be a witness against himself and his silence shall not in any manner prejudice him; (f) to confront and cross-examine the witnesses against him; (g) to have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf; (h) to have speedy and impartial trial, with legal or other appropriate assistance and preferably in the presence of his parents or legal guardian, unless such presence is considered not to be in the best interests of the juvenile taking into account his age or other peculiar circumstances; (i) to appeal in all cases allowed and in the manner prescribed by law; (j) to be accorded all the rights under the Rule on Examination of a Child Witness; and (k) to have his privacy fully respected in all stages of the proceedings. 167 Ibid, s. 2(a).
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F. WELFARE AND JUSTICE IN RHETORIC AND PRACTICE:
REFORMULATING THE YOUTH JUSTICE SYSTEM
In 2006, cognizant of the realities of children entangled with the youth justice system and taking its cue from the legal shifts that had been taking place in the law since the 1990s, the Philippine legislature enacted a comprehensive reformulation of the law governing youth justice policy. As a result, the emerging paradigm in the youth justice system that was endorsed by the courts in the 2002 SC Rules was enacted into legislation. This new law, which is still in force, deals with the entire structure of child offending from prevention to actual entry and engagement with – or diversion from – the criminal justice system to rehabilitation and reintegration. As a legislative enactment (and not merely a court-promulgated rule), the Juvenile Justice and Welfare Act of 2006168 constitutes a major reform of youth justice policy in the country.
At the outset, the Juvenile Justice and Welfare Act of 2006 is based on an acknowledgement of the realities of children in conflict with the law. The reform was prompted by numerous comprehensive studies169 documenting the experiences of children within the youth justice system which made it clear that a complete overhaul of the entire system of youth justice was required. Highlighting the incongruence between rhetoric and practice, these studies revealed “serious flaws in the implementation of laws on juvenile justice as well as abusive practices and attitudes of police officers and barangay170 officials towards children who have come into conflict with the law.”171 The punitive treatment that children were receiving clearly negated the
168 This law will be discussed in detail in the last section focusing on its participatory framework as a demonstration of my argument that the law has, in fact, reframed the discourse of youth justice policy to move away from the dominant understandings of welfare and justice. 169 Trinidad, supra note 1; Florence Martin and John Parry-Williams, The Right Not to Lose Hope: Children in Conflict with the Law – A Policy Analysis and Examples of Good Practice (London, UK: Save the Children UK, 2005); Save the Children UK, Breaking Rules: Children in Conflict with the Law and the Juvenile Justice Process The Experience in the Philippines (Quezon City, Philippines: Save the Children UK, 2004) [Breaking Rules]; Children in Conflict with the Law in Metro Manila, supra note 117; Felisa Etemadi, et al, Children in Conflict with the Law in Cebu: Profile and Experience with the Juvenile Justice Process (Quezon City, Philippines: Save the Children UK, 2004); Mae Fe Ancheta-Templa, Understanding Children in Conflict with the Law: Contradictions on Victimisation, Survivor Behaviour and the Philippine Justice System A Study of the Situation of Children in Conflict with the Law in Davao (Quezon City, Philippines: Save the Children UK, 2004); Program on Psychosocial Trauma and Human Rights – UP Center for Integrative and Development Studies, Painted Gray Faces, Behind Bars and in the Streets: Street Children and the Juvenile Justice System in the Philippines (Quezon City: UP CIDS PST and Consortium for Street Children, 2003) [Painted Gray Faces]. 170 The barangay is the smallest local government unit in the Philippines roughly equivalent to a village. 171 Painted Gray Faces, supra note 169 at 97.
243 supposed welfarist approach articulated in laws and policies. One study,172 for example, graphically detailed the experiences of numerous children brought within the system as expressed in their own words, highlighting the serious concerns with the existing system of youth justice:
I got beaten up and they electrocuted my ass. The cell smelled so badly. I don’t know, if it smelled like shit or pee. You can’t eat with that smell. I was in jail only for two days. A policeman friend set me free. When I got arrested for vagrancy, I got beaten up. They beat me up as soon as they arrested me. They hit me with the butt of their guns and I was electrocuted. They placed bullets between my fingers and squeezed it tight. The toilet was unbearable. The walls were dirty with graffiti. A trash dump’s better than prison. When you have to go, you use a tin can. You could step on the urine-filled floor while eating.173 … We were like pigs. The cell was very filthy. The women had a different cell, and the men too. There were so many mosquitoes and even kittens inside. There is no toilet inside the cell. There was some questioning before one is placed inside the cell. When one is caught for robbery, he is beaten up, and when one is caught for vagrancy – straight to the cell. They never fed us. All of us in the cell were male, but we were mixed in with the adults, each with different cases.174 … Barangay policeman Donato, also the barangay captain, arrested me. They brought us near the Day Care Center. There, they hit us with the butt of their guns. They hit me with a dustpan. We got caught again in the Sandawa area. A policeman named Lamping hit me with a piece of wood. When they were going to set us free, they hit us again. We were in jail for a night. They told us that we could have our freedom if we let them place their fingers inside our vaginas or let them fondle our breasts.175
These experiences unmistakably demonstrated that although welfarist provisions in laws and policies had moved away from blame and punishment through such mechanisms as suspended sentence and alternative forms of commitment, child offenders, continued to experience blame and punishment. The abusive treatment that these children were receiving during arrest, while in the process of trial, or even during rehabilitation reflects dominant constructions of children who have to be taught, guided and controlled by attributing responsibility – understood as laying blame and imposing punishment.
172 Ibid. 173 Ibid at 99, Experience of David, male 15 years old. 174 Ibid at 103, Experience of Oscar, male 17 years old. 175 Ibid at 102, Experience of Dahlia, female 16 years old.
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Another study176 even found that notwithstanding any proof of the commission of a crime, arresting officers had justified punitive treatment of children because children deserve it; it teaches children a lesson not to engage in criminal activities; and it instills discipline in them.177 In some provinces, cases had even been reported of children being placed in jail by their parents to instill discipline and also to keep them safe from gang members.178 Furthermore, despite the mandate of alternative forms of commitment, children were, in fact, being punished through detention in deplorable circumstances from the moment they were introduced into the youth justice system. It was not uncommon for children to be detained in police cells and jails for days and even months upon their arrest, only to find their cases dismissed later on. These cases,179 involving mostly crimes against property (including theft and robbery),180 substance abuse and violations of local ordinances and vagrancy, could take months even before the children were charged in court, and much more time before their trial was concluded. While waiting for their cases to be heard, children have remained in detention facilities in intolerable conditions:
Moreover, since most police stations had only one or two cells, if both males and females are held, [children in conflict with the law] are kept in the cells together with adults of the same sex. Aside from this, there were no police funds for food, beddings, utensils and clothes so that without the gifts coming from relations, friends and/or fellow inmates and sometimes the city social worker (CSW), the children would go hungry. In addition, most cells are very cramped and unsanitary.181
Even alternative commitment facilities were found to pose their own problems. Aside from the limited number of these rehabilitation centers, studies revealed an absence of comprehensive rehabilitation programs within these institutions.182 Furthermore, as found in one study:
[Within these facilities], the children were still deprived of their liberty and [these facilities were] quite far from [the city]. As a result, the children’s parents and friends seldom visited them. Some of the children even tried to escape, while others wanted to go back to the jail because of the boredom they felt despite the routine. In addition…children who just arrived into the centres go through a period of from 3 to
176 Trinidad, supra note 1. 177 Ibid at 23. 178 Ibid at 24. 179 Breaking Rules, supra note 169 at 27. 180 Painted Gray Faces, supra note 169. It is illuminating to see the reasons of children for committing crimes against property. Although there are economic reasons such as wanting to buy food and medicines for their families or wanting to procure drugs or illegal substances, there are also non-economic pressures such as “revenge against those who stole from them and those that doubted their honesty in doing an honest trade.” 181 Breaking Rules, supra note 169 at 31. 182 Painted Gray Faces, supra note 169 at 140.
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14 days in an ‘observation/isolation room.’ This is the same room where children were also sent for punishment or ‘disciplining.’ It is not very clear what the purpose of this segregation was….Their being mixed with children who were there to be punished further confuses the room’s purpose.183
Studies examining the Philippine system of youth justice have consistently pointed to the same problems in the implementation of youth justice laws and policies. As such, the broader protection envisioned by the expanded welfarist system of youth justice rooted in the Child and Youth Welfare Code has instead exposed more children to blame and punishment. As found, for example, in a study examining the “rescue” operations of street children:
Rescue operations are frequently carried out indiscriminately and for reasons other than child protection. The best interests of the child are often secondary to other concerns. Rescuers are frequently unclear about their objectives in conducting rescue and therefore use inappropriate intervention techniques. This unnecessarily criminalises, stigmatises and traumatises children….Often more than one objective is present in a rescue operation and these are conflicting [such as] trying to clean/beautify the city and provide children with appropriate social services.184
Activities implemented as part of rescue operations are often inappropriate or in conflict with objectives [such as] removal against will, use of weapons, beating and detention of children in the name of child protection.185
Against the backdrop of these harsh realities, the 2006 law fundamentally restructures the youth justice system by placing the primary emphasis on keeping young offenders out of the criminal justice system through mechanisms of prevention directed at “at risk children”,186 intervention programs for offenders under the age of criminal responsibility, diversion for those who are of
183 Breaking Rules, supra note 169 at 34-35. 184 Scerri, supra note 128 at 144. 185 Ibid at 145. 186 Section 4(d) provides: “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, such as, but not limited to, the following: (1) being abused by any person through sexual, physical, psychological, mental, economic or any other means and the parents or guardian refuse, are unwilling, or unable to provide protection for the child; (2) being exploited including sexually or economically; (3) being abandoned or neglected, and after diligent search and inquiry, the parent or guardian cannot be found; (4) coming from a dysfunctional or broken family or without a parent or guardian; (5) being out of school; (6) being a streetchild; (7) being a member of a gang; (8) living in a community with a high level of criminality or drug abuse; and (9) living in situations of armed conflict.
246 the age of criminal responsibility but who have committed less serious offences, and alternate sentencing, all within a framework of restorative justice aimed at rehabilitation of the child offender and reintegration within the community. As part of this package, the minimum age of criminal responsibility has been raised to 15. Several of these provisions will be examined in more detail in Section IV, which focuses on the ways in which the right of participation informs the entire process put in place by this Act. The objective here is to identify, more generally, the ways in which the 2006 law restructures the discourse of youth justice and transcends the dichotomy between the welfare and justice approaches.
The title of the law itself – the Juvenile Justice and Welfare Act of 2006 – bears out the attempt to merge the principles of both the welfare and justice approaches. The Act moves away from the dominant understandings and the dichotomous polarization of welfare and justice and instead adopts the fundamental values of both models with a clear focus on the context of the child offender. Addressing the concerns of both approaches and the realities on the ground, the law expresses a basic concern for the welfare of child offenders but at the same time acknowledges responsibility within a system where context is essential and rights are fundamental. In its “Declaration of State Policy”, the law unequivocally declares that it recognizes the distinct circumstances of the child offender. However, it also recognizes a system of justice whereby responsibility is attributed to children and legal rights are fully respected:
Pursuant to Article 40 of the United Nations Convention on the Rights of the Child, the State recognizes the right of every child alleged as, accused of, adjudged, or recognized as, having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, taking into account the child’s age and desirability of promoting his/her reintegration. Whenever appropriate and desirable, the State shall adopt measures for dealing with such children without resorting to judicial proceedings, provided that human rights and legal safeguards are fully respected. It shall ensure that children are dealt with in a manner appropriate to their well-being by providing for, among others, a variety of disposition measures such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational training programs and other alternatives to institutional care (emphasis added).187
Embedded within the law is an espousal of the welfare of child offenders articulated in the language of the best interests of the child where youth justice policy considers “the totality of the circumstances and conditions which are most congenial to the survival, protection and
187 Juvenile Justice and Welfare Act of 2006, supra note 16, s. 2(d).
247 feelings of security of the child and most encouraging to the child’s physical, psychological and emotional development.”188 Also pursuant to the philosophy of the welfare approach that considers the circumstances of the child offender, the law devotes a great deal of attention to community-based services which “respond to the special needs, problems, interests and concerns of children and which offer appropriate counseling and guidance to them and their families.”189
However, countering an intrusive and unaccountable welfare approach, the law is unequivocal that “no child shall be received in any rehabilitation or training facility without a valid order issued by the court after a hearing for the purpose.”190 In this respect, the law explicitly acknowledges the discriminatory nature of status offenses191 ensuring a more accountable and equitable system of youth justice. In fact, the law now specifically exempts all children from prosecution for the crime of vagrancy and prostitution under Section 202 of the Revised Penal Code;192 of mendicancy under the Mendicancy Law of 1978;193 and sniffing of rugby under Presidential Decree No. 1619194 – catch-all laws that were previously used in the sweeping and intrusive welfarist approach of the state.
Alongside these welfarist values is the principle of responsibility. Clearly, the law does not preclude the attribution of responsibility. In fact, the mechanisms and measures provided for in this law are processes of determining the responsibility of child offenders albeit through “alternative, child-appropriate process[es]…on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings.”195 Thus, responsibility is understood within the framework of restorative justice “which requires a process of resolving conflicts with the maximum involvement of the victim, the offender and the
188 Ibid, s. 4(b). 189 Ibid, s. 19. These are broken down into: (a) Primary intervention includes general measures to promote social justice and equal opportunity, which tackle perceived root causes of offending; (b) Secondary intervention includes measures to assist children at risk; and (c) Tertiary intervention includes measures to avoid unnecessary contact with the formal justice system and other measures to prevent re-offending. 190 Ibid, s. 45. 191 Ibid, s. 57 provides: Any conduct not considered an offense or not penalized if committed by an adult shall not be considered an offense and shall not be punished if committed by a child. 192 Ibid, s. 58. 193 Ibid. 194 Ibid. 195 Ibid, s. 4(i).
248 community.”196 As such, the law espouses responsibility by “[seeking] to obtain reparation for the victim; reconciliation of the offender, the offended and the community; and reassurance to the offender that he/she can be reintegrated into society.”197
Equally important, within this new mix of welfare and justice, the law is unequivocal in its recognition of the rights of children. Transcending the dominant discourse which associates rights protection exclusively with a justice model focused on punishment, the 2006 law mandates that children’s substantive and procedural rights be recognized and respected through the entire period of engagement with the youth justice system.198 Finally, as will be examined in
196 Ibid, s. 4(q). 197 Ibid. 198 Ibid, s. 5 provides: Rights of the Child in Conflict with the Law. – Every child in conflict with the law shall have the following rights, including but not limited to: (a) the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; (b) the right not to be imposed a sentence of capital punishment or life imprisonment, without the possibility of release; (c) the right not to be deprived, unlawfully or arbitrarily, of his/her liberty; detention or imprisonment being a disposition of last resort, and which shall be for the shortest appropriate period of time; (d) the right to be treated with humanity and respect for the inherent dignity of the person, and in a manner which takes into account the needs of a person of his/her age. In particular, a child deprived of liberty shall be separated from adult offenders at all times. No child shall be detained together with adult offenders. He/She shall be conveyed separately to or from court. He/She shall await hearing of his/her own case in a separate holding area. A child in conflict with the law shall have the right to maintain contact with his/her family through correspondence and visits, save in exceptional circumstances; (e) the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his/her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on such action; (f) the right to bail and recognizance, in appropriate cases; (g) the right to testify as a witness in his/her own behalf under the rule on examination of a child witness; (h) the right to have his/her privacy respected fully at all stages of the proceedings; (i) the right to diversion if he/she is qualified and voluntarily avails of the same; (j) the right to be imposed a judgment in proportion to the gravity of the offense where his/her best interest, the rights of the victim and the needs of society are all taken into consideration by the court, under the principle of restorative justice; (k) the right to have restrictions on his/her personal liberty limited to the minimum, and where discretion is given by law to the judge to determine whether to impose fine or imprisonment, the imposition of fine being preferred as the more appropriate penalty; (l) in general, the right to automatic suspension of sentence; (m) the right to probation as an alternative to imprisonment, if qualified under the Probation Law; (n) the right to be free from liability for perjury, concealment or misrepresentation; and (o) other rights as provided for under existing laws, rules and regulations. As well, s. 21 provides: Procedure for Taking the Child into Custody. – From the moment a child is taken into custody, the law enforcement officer shall:
249 more detail in Section IV, in addition to these specific rights, the child’s right of participation is a fundamental value that runs through the entire process.
(a) Explain to the child in simple language and in a dialect that he/she can understand why he/she is being placed under custody and the offense that he/she allegedly committed; (b) Inform the child of the reason for such custody and advise the child of his/her constitutional rights in a language or dialect understood by him/her; (c) Properly identify himself/herself and present proper identification to the child; (d) 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; (e) 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; (f) Refrain from subjecting the child in conflict with the law to greater restraint than is necessary for his/her apprehension; (g) Avoid violence or unnecessary force; (h) Determine the age of the child pursuant to Section 7 of this Act; (i) Immediately but not later than eight (8) hours after apprehension, turn over custody of the child to the Social Welfare and Development Office or other accredited NGOs, and notify the child’s parents/guardians and Public Attorney’s Office of the child's apprehension. The social welfare and development officer shal1 explain to the child and the child’s parents/guardians the consequences of the child’s act with a view towards counseling and rehabilitation, diversion from the criminal justice system, and reparation, if appropriate; (j) Take the child immediately to the proper medical and health officer for a thorough physical and mental examination. The examination results shall be kept confidential unless otherwise ordered by the Family Court. Whenever the medical treatment is required, steps shall be immediately undertaken to provide the same; (k) Ensure that should detention of the child in conflict with the law be necessary, the child shall be secured in quarters separate from that of the opposite sex and adult offenders; (l) Record the following in the initial investigation: (1) Whether handcuffs or other instruments of restraint were used, and if so, the reason for such; (2) That the parents or guardian of a child, the DSWD, and the PAO have been duly informed of the apprehension and the details thereof; and (3) The exhaustion of measures to determine the age of a child and the precise details of the physical and medical examination or the failure to submit a child to such examination; and (m) Ensure that all statements signed by the child during investigation shall be witnessed by the child’s parents or guardian, social worker, or legal counsel in attendance who shall affix his/her signature to the said statement. A child in conflict with the law shall only be searched by a law enforcement officer of the same gender and shall not be locked up in a detention cell. Finally, s. 22 provides: Duties During Initial Investigation. – The law enforcement officer shall, in his/her investigation, determine where the case involving the child in conflict with the law should be referred. The taking of the statement of the child shall be conducted in the presence of the following: (1) child's counsel of choice or in the absence thereof, a lawyer from the Public Attorney's Office; (2) the child's parents, guardian, or nearest relative, as the case may be; and (3) the local social welfare and development officer. In the absence of the child’s parents, guardian, or nearest relative, and the local social welfare and development officer, the investigation shall be conducted in the presence of a representative of an NGO, religious group, or member of the BCPC. After the initial investigation, the local social worker conducting the same may do either of the following: (a) Proceed in accordance with Section 20 if the child is fifteen (15) years or below or above fifteen (15) but below eighteen (18) years old, who acted without discernment; and (b) If the child is above fifteen (15) years old but below eighteen (18) and who acted with discernment, proceed to diversion under the following chapter.
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G. DEBATES ON THE CURRENT LAW
WELFARE VS. JUSTICE – AGAIN
Unfortunately, the current discourse on the Juvenile Justice and Welfare Act of 2006 has not escaped the traditional polarized debates between the welfare and justice models. At the center of the debates is the provision dealing with the minimum age of criminal responsibility. Under this current law, a child 15 years or under is exempt from criminal liability. Also, a child over 15 but under 18 who acts without discernment is likewise exempt. The law provides in section 6:
Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act.
A child above fifteen (15) years but below eighteen (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.199
Critics of the present law use this provision to characterize the law as a triumph of the welfare model that not only infantilizes children but also abets them in the commission of even more crimes – more serious crimes at that. It is within this context that those critics, proponents of the justice model, oppose the supposed welfarist orientation of the law and argue for a system of responsibilization and punishment.200
Because of the long history of welfarist objectives in youth justice laws and policies in the Philippines, the current law is seen as a continuation of that tradition. In fact, the proponents of the law suggest that child offenders are indeed victims. Consequently, in their view the law, with its minimum age of criminal responsibility at 15, endeavors to save these children and not
199 Ibid, s. 6. 200 However, as clearly discussed in sub-section F above, the reality is that despite the rhetoric of welfare in youth justice laws and policies, children brought within the youth justice system are treated punitively in accordance with ideas rooted in a harsh justice model that insists on imposing individual responsibility, blame and punishment – especially incarceration. The opponents of the current law ignore the fact that despite the “supposed” welfarist objectives of the law, child offenders have often been dealt with in an extremely and excessively punitive way.
251 treat them as “hardened criminals but as victims of circumstances beyond their control.”201 The welfarist approach to youth justice policy is further suggested in the pronouncement of the law that the State shall promote and protect the physical, moral, spiritual, intellectual and social well-being of children.202 Thus, consistent the tradition of the welfare approach in which the “criminal” behavior of the child is understood to be merely a manifestation of underlying problems, the current law is understood to subscribe to the view that these children are “helpless” and cannot be “blamed” for their actions for these are largely determined by adverse circumstances.
Not surprisingly, the justice model gains momentum with the occurrence of highly publicized youth crimes – often described as a “wave.” With the emergence of the batang hamog203 phenomenon, discussed at the beginning of this Chapter, and a number of high-profile crimes committed by children in recent years,204 the justice model proponents have focused their argument on the unacceptable raising of the minimum age of criminal responsibility. This has provided the platform for their discussion of the consequences of coddling cunning juvenile delinquents, the softening of the justice system on criminality and the failure of the welfarist model.
Echoing the belief that child offenders understand their actions and must take responsibility for their behavior,205 opponents of the current Juvenile Justice and Welfare Act of 2006 object to the
201 Salaverria, supra note 19; See also Anne Marxze D. Umil, Lowering Age Discernment Won’t Solve Juvenile Delinquency – Children’s Rights Groups, online: Bulatlat.com
252 setting of the minimum age of criminal responsibility at 15, taking the position that is sets too high a threshold. As one legislator who has proposed the lowering of the age of criminal responsibility has argued: “But it is a known medical fact, that at the age of 10 years old, a child can already be mentally mature to distinguish and understand a right from a wrongful act and so much so children ages 15 to 18 years old.”206 It is argued that in setting the minimum age of criminal responsibility at 15 in today’s society, the law assumes that children of this time are more “ignorant” (mangmang) and “innocent” (walang alam) that they cannot distinguish between right and wrong.207 As one senator maintains, the reality is that children today “know so much more” (mas marami ang alam) especially with the advent of technology.208 Such an argument underscores the belief that more children at a younger age must be held responsible for their acts. This, according to the justice proponents, can only be achieved by lowering the minimum age of criminal responsibility. The insistence on a lower age indicates how their arguments are heavily underpinned by responsibility that focuses on punishment.
Interestingly, those who are currently advocating a lowering of the minimum age of criminal responsibility to the age of nine use very different arguments to justify the setting of the age this “low” from those used in the past. Historically, the “low” age set for the commencement of criminal responsibility was understood in terms of promoting children’s welfare, i.e., as a way to bring more children into the welfarist domain of youth justice policy. For the current proponents of a justice model, however, justifications for lowering the age of criminal responsibility lie in the concepts of responsibilization and punishment. Part of the argument emphasizing responsibility and punishment are calls to distinguish between serious and light offenses specifically for those 15 years and below who are considered, in the current law, criminally irresponsible regardless of the gravity of the offense. Insisted one commentator: “[t]here is an urgent need to amend that stupid law [Juvenile Justice and Welfare Act of 2006] that exempts
Marlyn L. Primicias-Agabas, An Act Strengthening the Juvenile Justice System in the Philippines, Amending for the Purpose Republic Act No. 9344, Otherwise Known as the “Juvenile Justice And Welfare Act Of 2006.” 206 House Bill No. 3423 introduced by Rep. Anthony Rolando T. Golez. Jr., An Act Reinstating the Criminal Liability of a Person of Children Under Eighteen Years of Age, Amending for the Purpose Republic Act No. 9344, Known as the Juvenile Justice and Welfare Act of 2006 and for Other Purposes. 207 Transcript of Interview with Senator Chiz Escudero on Juvenile Justice Law, online: Senate of the Philippines
253 young criminals from punishment even if they have committed heinous crimes.”209 As one proposal for amendment of the current law warns:
On their own, teen-aged offenders are committing serious crimes like rape, murder or robbery, with full knowledge that what they are doing are criminal and reprehensible acts. They are abetted or even encouraged to do so because of the impunity and protection that the law – RA 9344 [Juvenile Justice and Welfare Act of 2006] – so generously yet so undeservedly and unjustly grants to them.210
One lawmaker went as far as saying that some children even bring with them their birth certificates which they readily show to the police every time they are caught in order to avoid arrest and detention.211 With this attitude towards child offenders, “the State must [then] be protected from physically and mentally mature youth who are hiding from penal liability merely due to their age.”212 By punishing these child offenders, “juvenile justice law will not only protect the best interests of the child but also promote the general welfare and maintain peace and order that everyone in this country rightly deserves.”213
In the end, the objections to the current law represent more than criticisms of where the minimum age of criminal responsibility has been set. They are, in reality, a critique of the “failed” welfarist model of youth justice. It is being argued that the tradition of welfare has not only been unsuccessful in preventing reoffending but has in fact been a failure in averting first time offending. Even the current Director General of the Philippine National Police (PNP) was quoted as saying: “On the part of the PNP, we ourselves are aware that more children have been involved in criminal incidents. We know that for a fact based on our statistics because it is the PNP which investigates these incidents[.]”214 Within the scheme of the welfare/justice divide, this frustration against the welfare approach is framed as “‘nothing works’: that it was a waste of
209 Ramon Tulfo, That Stupid Pangilinan Law, online: Philippine Daily Inquirer
254 time and money to devote energy to the rehabilitative treatment of (young) offenders.”215 Thus, the current proposals advocate a “get tough on crime” stance by adopting a justice model heavily underpinned by punishment. As explained in one proposal:
Almost everywhere, law enforcers have complained about their inability or helplessness in coping with the rising, if not alarming, incidence of serious crimes committed by teen-aged offenders who, under RA 9344, are immune from arrest and detention. The worst part is that criminal syndicates and other criminal elements are taking advantage of the law and are now using these juvenile offenders in actually carrying out their nefarious criminal activities such as murder, robbery, drug trafficking and other serious crimes (emphasis added).216
These debates once again frame the discourse of youth justice policy as a choice between the dominant understandings of both the welfare and justice models. Thus, the choice merely becomes between saving the innocents or controlling the little criminals. With these conversations, the re-imagining of the fundamental values and principles of both approaches undertaken by the Juvenile Justice and Welfare Act of 2006 is undermined and the law is understood merely as a vehicle for one of these dominant approaches.
IV. THE JUVENILE JUSTICE AND WELFARE ACT OF 2006 AND THE EMERGING PARADIGM:
A FRAMEWORK OF PARTICIPATION
A. LIMITATIONS OF THE DISCOURSE ON WELFARE/JUSTICE DIVIDE
Because the debates on youth justice policy emphasize the contradictions and “failures” of each dominant approach, discussions typically focus on how those models differ from each other. Thus, intervention has been reduced to a choice of which approach works. But Smith warns us: “It is not just a matter of resolving practical disagreements over ‘what works’, as this masks fundamental divisions over what is proper and reasonable in terms of responding to problematic behavior by young people.”217 The more complex question to ask really is “what works for whom in what circumstances and how?”218 In addition, although there are clear and substantial differences in ideologies and infrastructures between these models of youth justice policy, they
215 Muncie, supra note 3 at 262. 216 House Bill No. 2894, supra note 210. 217 Smith, supra note 31 at 258. 218 Muncie, supra note 3 at 278.
255 have a fundamental similarity that exposes their limitations. The most crucial common thread between these approaches is how they both view children as objects.
For the welfare advocate, young people are not fully responsible for their acts because of social constraints. Smith writes: “social factors exercise an irresistible influence on what happens to young people; that is, they are unable to act in their own right with any degree of freedom.”219 Because of these vulnerabilities in the life of a child, young offenders have to be saved from a “criminal career.” Children, as innocent, dependent and naïve, are easily corrupted by evil influences so there is a need to tightly regulate the way they live their lives. Thus, efforts are directed at keeping children within the confines of a romantic and innocent “childhood.” This means strict supervision of children’s leisure and recreation; regulation of social behavior; eliminating “harmful” ideologies and preparing children to become “useful and productive” citizens. In short, interventions grounded in a welfare model are aimed at “defining, rationalizing and regulating the dependent status of youth.”220 Platt describes this child-saving project:
If, as it was believed, criminals are conditioned by biological heritage and brutish living conditions, then prophylactic measures must be taken early in life. ‘We must get hold of these little waifs that grow up to form the criminal element just as early in life as possible,’ exhorted an influential child-saver. ‘Hunt up the children of poverty, of crime, and of brutality, just as soon as they can be reached.’ Efforts were needed to reach the criminals of future generations. ‘They are born to crime,’ wrote penologist Enoch Wines, ‘brought up for it. They must be saved.’221
On the other hand, for the justice proponent, it is because the child is seen as self-determining and responsible – although negatively – that the actions of child offenders must be controlled and regulated. Smith explains:
Justice-based strategies attribute responsibility and autonomy to children who offend…but they apply measures of punishment and control which by their nature deny young people the opportunity to act independently or to demonstrate that they can behave ‘responsibly’.222
219 Smith, supra note 31 at 258. 220 Platt, supra note 94 at 22. 221 Ibid at 16-17. 222 Smith, supra note 31 at 258.
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When the justice model imposes responsibility and punishment on a child offender, it is driven by “the overarching shared assumption that left to their own devises children lack collective responsibility, run wild and destroy each other.”223 Thus, youth justice policy must impose a more direct and repressive form of control. By targeting child offenders, youth justice policies aim to restore these children to the true position of childhood. Punitive measures – referred to as the “civilizing process of adult society”224 – will control these children from “sink[ing] to unknown depths of cruelty and individualism.”225
The measures of punishment and control are imposed on the child not only as an offender, but more so as a child who “exceed[s] the limits of what it is to be a child.226 This implies that a child offender responsibilized and punished under the justice model is, in fact, the “reverse of what we desire to see in childhood.”227 The language of responsibility then really highlights “weakness, wrong-doing, dangerousness and impressionability”228 viewed as inherent in childhood.
Because both models see children as objects, they inevitably find it difficult to accept the idea of children as active participants in the construction and determination of their own lives, the lives of those around them and of the societies in which they live. While the welfare approach addresses the “need” of children to be “rescued,” the justice model, on the other hand, tackles the “need” of children to be “controlled.” But as Woodhead warns us:
‘Children’s needs’ have been constructed as part of a standardized model in which childhood is a period of dependency, defined by protectionist adult-child relationships in which adults are dominant providers and children are passive consumers. This standardized model is underpinned by separation of young humanity from later life-phases, as a distinctive status.229
223 Phil Scraton, “Whose ‘Childhood’? What ‘Crisis’?” in Phil Scraton, ed, ‘Childhood’ in ‘Crisis’? (London: UCL Press, 1997) at 168. 224 Ibid. 225 Ibid. 226 Jenks, supra note 34 at 126. 227 Harry Hendrick, “Constructions and Reconstructions of British Childhood: An Interpretative Survey, 1800 to the Present” in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood, 2d ed (London: Falmer Press, 1997) at 44. 228 Elizabeth Such and Robert Walker, “Young Citizens or Policy Objects? Children in the ‘Rights and Responsibilities’ Debate” (2005) 34:1 Journal of Social Policy 39 at 54. 229 Martin Woodhead, “Psychology and the Cultural Construction of Children’s Needs” in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood, 2d ed (London: The Falmer Press, 1997) at 78.
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Whether youth justice policies have been based on care or control, welfare or justice, treatment or punishment, they have reflected adult society’s view of what is in the best interests of children. By aiming to change children – their circumstances or their behavior – both approaches apply adult standards “to judge the quality of children’s lives and the nature of their behavior.”230
In both approaches, children are treated merely as objects, with the result that the “welfare” and “responsibility” attributed to the child offender comes as an external imposition. The particular “circumstances” or “acts” of the child offender that welfare and justice models respectively proclaim to focus on are understood and appreciated based on a set of ideals about children and childhood and not necessarily on how that particular child lives, experiences and understands them. Muncie and Hughes call it a “politics of adultism”231 where policies are “driven by professional discourses of protection (but realized as surveillance), discipline (but realized as subservience) and correction (but realized as punishment).”232 Within such language, children are considered outsiders, “the ‘other’ to adult essentialism.”233 As such, “the dominant models which inform our understanding of youth offending and shape our interventions offer only partial explanations, and therefore incomplete solutions.”234 Largely absent from the discussions is, in fact, the central focus of any youth justice policy – the child, or more precisely, the voice of the child.
Armed with such insight, one can see that the Juvenile Justice and Welfare Act of 2006 breaks new ground by introducing a new participatory framework in dealing with child offenders, an aspect of the law that has been largely overlooked.
B. RE-FRAMING THE DISCOURSE OF YOUTH JUSTICE POLICY
As has been shown above, the Juvenile Justice and Welfare Act of 2006 breaks down the rigid
230 Smith, supra note 31 at 258. 231 Muncie and Hughes, supra note 29 at 15. 232 Ibid. 233 Deena Haydon and Phil Scraton, “’Condemn A Little More, Understand a Little Less’: The Political Context and Rights Implications of the Domestic and European Rulings in the Venables-Thompson Case” (2000) 27:3 Journal of Law and Society 416 at 448. 234 Smith, supra note 31 at 259.
258 lines between the welfare and justice models and re-imagines their fundamental values and principles within a framework that draws on the emerging paradigm of children and childhood and that centrally focuses on the contextual realities of the child. By repositioning the child, the law “prioritizes children’s accounts and experiences, the meaning they invest in their acts and their active participation in the process.”235 This has opened up a critical space for the participation of children within the youth justice system. Consequently, in accordance with the general framework of the law, it is a fundamental policy to promote and protect the right of children to participate within the youth justice policy. The law provides in its Declaration of State Policies:
Proceedings before any authority shall be conducted in the best interest of the child and in a manner which allows the child to participate and to express himself/herself freely. The participation of children in the program and policy formulation and implementation related to juvenile justice and welfare shall be ensured by the concerned government agency (emphasis added).236
Within the structure of the Juvenile Justice and Welfare Act of 2006, which has been outlined in Section III, the theme of participation runs through the entire process of engagement of the child with the youth justice system. For example, upon the turnover of the child to a social welfare and development officer after apprehension, said officer shall immediately explain to the child and the child’s parents/guardians the consequences of the child’s act with a view towards counseling and rehabilitation, diversion from the criminal justice system, and, reparation, if appropriate.237 The child is made aware of the circumstances of the situation; the options available; and the consequences of such options. This treats the child as an individual who is capable of forming an opinion and not merely an object of care or control. By keeping the child thoroughly informed, such child becomes more involved and invested in the process that he/she is entering making it more meaningful.
The most significant innovation that the law has introduced into the youth justice system is the institutionalization of a participative framework within the concepts of intervention for those who are below the age of criminal responsibility, diversion for children considered criminally responsible and rehabilitation and reintegration for all child offenders. Any child brought within
235 Scraton and Haydon, supra note 59 at 325. 236 Juvenile Justice and Welfare Act of 2006, supra note 16, s. 2(b). 237 Ibid, s. 21(i).
259 the ambit of the youth justice system is given the opportunity to participate in the formulation and implementation of intervention, diversion, rehabilitation and reintegration measures and programs. Such participation is understood as the respect and recognition of their rights, realities and relationships.
Intervention programs are for children below the minimum age of criminal responsibility (set at 15). Because these children are considered criminally irresponsible, they are released to their parents, guardians or other responsible individual or institution but with an appropriate intervention program designed to address issues that caused the child to get entangled with the youth justice system in the first place. These intervention mechanisms take the form of an individualized treatment programs.238 Within the framework of the law, these programs are community-based services that respond not only to the “needs” of children but also their problems, interests and concerns. Expanding the discourse of “needs” to include issues and concerns relevant to the children themselves not only recognizes the need for participation but, in fact, also provides an opportunity for child offenders to participate within youth justice policies. Thus, intervention programs are not only unidirectional but also multi-level.239 In fact, in these intervention programs, the law engages the various institutions within the community including the family,240 the educational system241 and the local
238 Ibid, s. 4(l). 239 Ibid, s. 19 provides: Community-based programs on juvenile justice and welfare shall be instituted by the LGUs [local government units] through the LCPC [Local Councils for the Protection of Children], school, youth organizations and other concerned agencies. The LGUs shall provide community-based services which respond to the special needs, problems, interests and concerns of children and which offer appropriate counseling and guidance to them and their families. These programs shall consist of three levels: (a) Primary intervention includes general measures to promote social justice and equal opportunity, which tackle perceived root causes of offending; (b) Secondary intervention includes measures to assist children at risk; and (c) Tertiary intervention includes measures to avoid unnecessary contact with the formal justice system and other measures to prevent re-offending. 240 Ibid, s. 12 provides: The Family. – The family shall be responsible for the primary nurturing and rearing of children which is critical in delinquency prevention. As far as practicable and in accordance with the procedures of this Act, a child in conflict with the law shall be maintained in his/her family. 241 Ibid, s. 13 provides: The Educational System. – Educational institutions shall work together with families, community organizations and agencies in the prevention of juvenile delinquency and in the rehabilitation and reintegration of child in conflict with the law. Schools shall provide adequate, necessary and individualized educational schemes for children manifesting difficult behavior and children in conflict with the law. In cases where children in conflict with the law are taken into custody or detained in rehabilitation centers, they should be provided the opportunity to continue learning under
260 governments.242
The mechanism of intervention signifies that for children below the age of criminal responsibility who are accused of or recognized as having infringed the penal law, exemption from criminal responsibility does not necessarily mean the absence of accountability for one’s acts. Before such a child is released to the parents, guardians or nearest relative, the local social welfare and development officer shall determine the appropriate intervention program in consultation with the child and the person having custody over the child.243 This responds to the criticisms that the law simply exempts from criminal liability too many children with a minimum age of criminal responsibility set too high. The provisions on intervention allay such fears because even child offenders below the minimum age of criminal responsibility are not allowed to simply turn their backs on responsibility but are rather subject to intervention programs.244
Significantly, in this mechanism of intervention, the local social worker shall “engage the active participation of the child, in accordance with his/her evolving capacity, and his/her parents or guardians in the formulation and the implementation of the intervention programs (emphasis added).”245 Thus, the process is not a mere “determination” on the part of the social worker. Instead, the circumstances considered in arriving at an intervention program are given a more nuanced appreciation with the involvement of the child. The law specifically lists these considerations, quoted as follows:
(a) circumstances of the child (e.g., age, level of development, educational background); (b) needs of the child if specially disadvantaged, i.e., street child, or child with mental or physical difficulties;
an alternative learning system with basic literacy program or non-formal education accreditation equivalency system. 242 Ibid, s. 15 provides for the establishment and strengthening of Local Councils for the Protection of Children (LCPC) which serves as the “primary agency to coordinate with and assist the [local government unit] concerned for the adoption of a comprehensive plan on delinquency prevention, and to oversee its proper implementation.” 243 Ibid, s. 20. 244 Juvenile Justice and Welfare Council, Council Resolution No. 4 (2006) Rules and Regulations Implementing Republic Act No. 9344, rule 37 [Rules and Regulations of the Juvenile Justice and Welfare Act]. These may include any or a combination of the following: (a) Counseling; (b) Peer counseling and life skills training and education; (c) Provision of support services to the family, e.g., parent effectiveness service, livelihood programs, skills trainings, etc.; (d) Referral to other agencies for appropriate services, e.g., education, health, skills training, etc.; and (e) Access to child and youth organizations in the community, such as but not limited to the Sangguniang Kabataan. 245 Ibid, rule 36.
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(c) family and social background of the child; (d) influence of the family and environment on the growth of the child; (e) ability and willingness of the parents or guardians to guide and supervise the child; (f) nature and circumstances of the offense charged; (g) availability of community-based programs for intervention and prevention; and (h) safety and security of the child.246
Equally significant, the law also utilizes the concept of diversion for children entering the youth justice system who are within the age of criminal responsibility and who are alleged to have committed less serious crimes. 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.”247 Diversion essentially involves individualized courses of action where the responsibility and treatment of a child in conflict with the law are determined. Such a process can occur at all levels248 of the proceedings before arraignment.249 Depending on the level of the proceedings at which diversion takes place, these processes include mediation, family conferencing and conciliation. What is essential is that diversion adopts indigenous modes of conflict resolution in accordance with the best interest of the child with a view to accomplishing the objectives of restorative justice and the formulation of a course of action embodied in a “diversion program.”
The law clearly repositions children and recognizes their active involvement in this process of diversion. In fact, at the beginning of the process where the suitability of diversion is just being
246 Ibid. 247 Juvenile Justice and Welfare Act of 2006, supra note 16, s. 4(i). 248 Ibid, s. 24 provides: Diversion may be conducted at the Katarungang Pambarangay, the police investigation or the inquest or preliminary investigation stage and at all 1evels and phases of the proceedings including judicial level. Furthermore, s. 23 provides: Diversion at these stages are conducted by the law enforcement officer or Punong Barangay with the assistance of the local social welfare and development officer or other members of the LCPC [Local Councils for the Protection of Children]. 249 Diversion may also be done at the judicial level. The process at this stage was later clarified in Revised Rule on Children in Conflict with the Law, supra note 17, ss. 31-33. The suitability of diversion shall be determined by a Diversion Committee – composed of the Branch Clerk of Court as chairperson; the prosecutor, a lawyer of the Public Attorney’s Office assigned to the court, and the social worker assigned by the court to the child, as members – before arraignment. Pending the determination of diversion by the Committee, the court shall release the child on recognizance to the parents, guardian or custodian, or nearest relative; or if this is not advisable, commit the child to an appropriate youth detention home or youth rehabilitation center which shall be responsible for the presence of the child during the diversion proceedings.
262 determined, the law already insists on the participation of children when it mandates authorities to involve the child expressed in the duties herein quoted:
(1) explain to the child and his/her family the objective of the diversion proceedings, the value of diversion and the consequence of not undergoing diversion.
(2) ask the child of the circumstances of the offense, the motives or purpose of the offense and the factors that led the child to commit the offense.
(3) ask the child of his/her personal circumstance including his/her parents and family, his/her peers and educational status.
(4) make the child in conflict with the law understand the consequences of his/her actions and the corresponding responsibilities.
(5) ensure that the child understands and realizes his/her accountability, be remorseful of his/her actions and takes on the responsibility in repairing the harm done in lieu of filing a formal case in the court.250
Once diversion is deemed appropriate, the processes of mediation, family conferencing, conciliation251 and other indigenous modes of conflict resolution252 are embarked on within an understanding of restorative justice, which the law explicitly endorses as an operative principle in all “laws, policies and programs” relating to the youth justice system.253 Restorative justice is defined in the law as:
[A] principle which requires a process of resolving conflicts with the maximum involvement of the victim, the offender and the community. It seeks to obtain reparation for the victim; reconciliation of the offender, the offended and the community; and reassurance to the offender that he/she can be reintegrated into society.254
Similarly, Bazemore and Schiff describe restorative justice as involving:
• an emphasis on the offender’s personal accountability by key participants; and • an inclusive decision-making process that encourages participation by key participants; and • the goal of putting right the harm that is caused by an offense.255
250 Rules and Regulations of the Juvenile and Justice Welfare Act, supra note 244, rule 47(a). 251 Juvenile Justice and Welfare Act of 2006, supra note 16, s. 25. 252 Ibid, s. 23. 253 Ibid, s. 2(f). 254 Ibid, s. 4(q). 255 Gordon Bazemore and Mara Schiff, Juvenile Justice Reform and Restorative Justice: Building Theory and Policy from Practice (UK: Willan Publishing, 2005) at 32.
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Under a restorative justice framework, victims, offenders and communities have the opportunity for active involvement in the justice system as early and as fully as possible. It emphasizes the value of participation, empowerment, communication, dialogue and negotiated agreements.256 Crawford and Newburn write:
One intended consequence of party-centred control and participation is to restore responsibility to the participants, in the belief that this will encourage offenders to be more accountable for their actions and to encourage others to take responsibility for ensuring the successful implementation of any agreement reached. Discussion of the consequences of offences is seen as a more powerful way of communicating their gravity to offenders in a way that brings home their impact on victims. A process that treats people with respect and encourages their empowerment, it is believed, will be more legitimate in the eyes of those participating, encourage a more general respect for the law and understanding of the consequences of individual actions upon others.257
Because the diversion proceeding involves children in the process, it accords full respect for the individual characteristics and the peculiar circumstances of the child offender. The child’s feelings and views are significantly relevant in the process. With the active participation of children, they are recognized as “providers of knowledge and information rather than as passive recipients and as oppressed victims of adult power.”258 In formulating an individualized diversion program for the child, the law provides for considerations quoted as follows:
(1) the child’s feelings of remorse for the offense he/she committed; (2) the parents’ or legal guardians’ ability to guide and supervise the child; (3) the victim’s view about the propriety of the measures to be imposed; (4) the availability of community-based programs for rehabilitation and reintegration of the child; and (5) record of prior offenses, if any (emphasis added).259
Accordingly, unlike the understanding of responsibility as blame and punishment in the dominant approach, in this system, responsibility is not imposed on the child. Rather, it is engaged and taken on. As such, the ensuing diversion program is neither a paternalistic nor punitive response as understood within the dominant models of youth justice. Reflecting a reformulated understanding of responsibility that moves away from punishment, the law
256 Adam Crawford and Tim Newburn, Youth Offending and Restorative Justice: Implementing Reform in Youth Justice (UK: Willan Publishing, 2003) at 22. 257 Ibid at 23. 258 Muncie and Hughes, supra note 29 at 15. 259 Rules and Regulations of the Juvenile and Justice Welfare Act, supra note 244, rule 49(a).
264 considers alternative outcomes embodied in diversion programs quoted herein:
(a) restitution of property; (b) reparation of the damage caused; (c) indemnification for consequential damages; (d) written or oral apology; (e) care, guidance and supervision orders; (f) counseling for the child in conflict with the law and the child’s family; (g) 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; (h) participation in available community-based programs, including community service; or (i) participation in education, vocation and life skills programs.
x x x
(b) confiscation and forfeiture of the proceeds or instruments of the crime;
x x x
(b) written or oral reprimand or citation; (c) fine; (d) payment of the cost of the proceedings; or (e) institutional care and custody.260
For those outside of these diversion proceedings and found criminally responsible by the court, the law mandates an automatic suspension of sentence without need of application.261 The law then provides for mechanisms to impose appropriate disposition measures for these child offenders.262 Ultimately, all these mechanisms and procedures of intervention, diversion and disposition are undertaken with the objective of “rehabilitation and reintegration”. These objectives are significant because they reframe the system of youth justice as a recognition and respect of the rights, realities and relationships of children. Thus, instead of unbridled impositions on children characterized as either curative or punitive, the law pushes for a system that is relevant and meaningful to the lives of children. This is demonstrated with the law’s
260 Juvenile Justice and Welfare Act of 2006, supra note 16, s. 31. 261 Ibid, s. 38. 262 Ibid.
265 holistic approach with a strong emphasis on community-based programs. As such, the youth justice system does not aim to stigmatize the realities of child offenders rather it aims to “prevent disruption in the education or means of livelihood of the child in conflict with the law in case he/she is studying, working or attending vocational learning institutions.”263 Equally important, the system respects the relationships of children so that the law acknowledges that the youth justice system must “prevent separation of the child in conflict with the law from his/her parents/guardians to maintain the support system fostered by their relationship and to create greater awareness of their mutual and reciprocal responsibilities”264 and “facilitate the rehabilitation and mainstreaming of the child in conflict with the law and encourage community support and involvement.”265
The introduction of a space for the participation of children is cognizant and respectful of the relational connections that children maintain and establish within their lives and communities. This very much represents the indigenous philosophy of “kapwa” where there is the unity of the “self” with “others”. This implies that relationships do not merely involve dealing with the “other,” but rather, they involve connecting with one’s identity. Thus, it is a powerful legal and moral concept with which to reconstruct our understanding of the youth justice system.266 In fact, more general arguments have been put forward in the Philippines that offending, especially when committed by children, should be understood as a break in relationships. As borne out by the work of the Free Rehabilitation, Economic, Education and Legal Assistance Volunteers Association, Inc. (FREELAVA), an organization pioneering in community-based diversion programs in the Philippines:
Crime is fundamentally a violation of people and interpersonal relationships. The crime committed has breached the relationship between the offender, the victim and the community where the crime occurred. The primary victim is the most directly affected by the offence but others, such as the family members of the victim and offender, witnesses, and members of the affected community, are also victims. Since crime has created an imbalance in the community (e.g. fear, distrust, anger), there is the need to restore and address the relationship affected by the crime. The victim, offender and the affected community, therefore, became the key stakeholders in justice. A restorative justice process maximises the input and participation of these
263 Ibid, s. 54. 264 Ibid. 265 Ibid. 266 See e.g. Indigenous Administration of Justice and its Impact on the Protection of Children: The Tagabawa- Bagobo and Subanen Experience (Quezon City, Philippines: Save the Children UK, 2006).
266
parties — especially the primary victim as well as the offender — in the search for restoration, healing, responsibility and prevention. The roles of these parties will vary according to the nature of the offence as well as the capacities and preferences of the parties (emphasis added).267
Seen in this light, youth justice policy becomes more than an issue of cure, blame or punishment. It becomes a participative tool for those engaged in reconnecting and re- establishing relationships. The current law unequivocally articulates a framework of participation in which the vital and active engagements of the child offender in youth justice policy are recognized and respected. Children are contextualized within their environments and “different discursive practices [now] produce different childhoods, each and all of which are real within their own regime of truth.”268 Thus, there is neither a “real child” nor an “authentic childhood experience.” Rather, the law is more receptive and sensitive to the validity of the experiences and actions of each child. As well, engaging the participation of children within the process encourages them to take ownership of their actions and realize accountability. As Smith writes: “responsibility as a concept and ‘responsibilisation’ as a form of practice can and should be contrasted to those of ‘blame’ and punishment.”269 With this understanding, youth justice policy is able to break away from the confining victim- villain construction of children that evokes either a child-saving or child-controlling response.
Through the processes and mechanisms introduced in the law, youth justice policy is steered away from the restrictive choice between welfare and justice approaches. They, in fact, offer a new platform for youth justice policy by opening a space for children to participate in addressing the offense, the offending behavior and the suitable response. In this manner, the child is not merely an object of the youth justice system. Rather, the child becomes an active participant in the processing not only of the event – the offense, the offending behavior and circumstances leading to and surrounding it – but also of the goal of re-establishing the connections severed by such event.
267 Back on Track: Making Community-Based Diversion Work for Children in Conflict with the Law A Documentation of FREELAVA’s Experience in Cebu City, Philippines (Quezon City, Philippines: Save the Children UK, 2005) at 36-37. 268 Prout and James, supra note 64 at 26. 269 Smith, supra note 31 at 260.
267
V. THE WAY FORWARD:
GUARDED OPTIMISM
Following a legal regime that had been in place for decades, the Juvenile Justice and Welfare Act of 2006 introduced a transformative framework of youth justice policy that allows the system to acknowledge and respect the rights, realities and relationships of children. The law is a judicious attempt to reformulate the values of both the welfare and justice models so that the rhetoric of youth justice is steered away from the traditional debates focused on the welfare/justice divide and the implementation of the law genuinely reflects its objectives.
However, the law faces an arduous task. It has been in existence for only a few years and has neither been fully appreciated for the participatory framework it introduced nor even fully implemented. If the current debates surrounding the law are any indication, the participatory framework is being overlooked, raising concerns that the youth justice system is still tied to the previous framework which confined youth justice policy to a choice between the two dichotomous dominant models. Thus, despite the adoption in the current law of a framework reflecting the emerging paradigm, the youth justice system is still understood in terms of the previous approach of either rescue or control.
Equally challenging is the non-implementation of the law on the ground. In fact, funds for the implementation of the law were only released in 2011, five years after the law came into effect.270 The way in which children are being dealt with by the youth justice system in the few years that the law has been in effect evidences this non-implementation. Because of the non- implementation of the current law, children in conflict with the law are still treated as “little criminals” who must be made responsible for their misdeeds through a punitive system. They are still arrested and taken into custody using force and intimidation. They are even incarcerated with adults while in custody.271 Those children brought to “alternative” facilities experience the same punitive treatment. Many of these youth homes “retain the structure and appearance of a
270 See Senator Kiko Pangilinan Welcomes Release of P50m for Proper Implementation of Juvenile Justice Law, online: Senate of the Philippines
268 jail, including holding cells with bars.”272 Thus, children report of their experiences in these facilities: they are “depressed, scared, anxious and eager to return home to their families.”273 As found further:
Diversion is rarely used and conditions in detention centers are worsening, and they are becoming more overcrowded by the day. Children are subjected to violence, both from guards, and by fellow inmates, without intervention from the authorities. The educational welfare of the children is more often than not neglected. The nutritional and health needs are left wanting.274
Despite these constraints in understanding and implementation, some policymakers are already up in arms against the current law. One legislator even describes this law as “one of those laws that looks good during its passage but turns out to be prejudicial and detrimental.”275 But what is the prejudice being referred to? Is society prejudiced because children seemingly “escape” punishment or because adults simply lose “control” over the lives of their children? Being pulled back into the previous system of rhetoric and reality misleads us into believing that the true measure of the success of the law is how it has either saved our children or controlled them. Because the dominant models of youth justice policy rely on universalized notions of “the child” and “an authentic childhood experience,” child offenders caught in this system continue to be marginalized. Worse, they are exposed to even more serious forms of harm. They become the “other” (not only in relation to adults but also against the “normal” child) whose childhood needs to be restored. As Smith correctly argues:
We have seen…that there is a substantial gulf between their [young people] lives and circumstances, on the one hand, and the ways in which they are stereotyped and dealt with by the justice system, on the other. What we should be seeking is not to modify this system, or simply to limit the damage caused, but rather to promote forms of practice and policy change which will acknowledge, take account of, and respond positively to young people in light of their backgrounds and experience.276
The current law has laid down the “forms of practice and policy changes” that Smith so keenly
272 Ibid at 37 273 Ibid at 35 274 “Report on the Detention of Children and Lapses in the Implementation of the Comprehensive Juvenile Justice System and Welfare Act of 2006 (RA 9344)” (10 December 2008), online: People’s Recovery, Empowerment and Development Assistance (PREDA) Foundation,
269 seeks. Indeed, for too long, the youth justice system has ignored children and has eroded that space where children can be children – not according to adult standards, but as who they really are. Respecting that space simply means respecting a child’s sense of dignity and worth and that articulates genuine justice. Ultimately, the Juvenile Justice and Welfare Act of 2006, if taken seriously, will make a real difference to children’s lives.
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CONCLUSION
What childhood is and who children are depend not only on where one looks but also on the lens through which the gaze is directed.1
The Philippines is a child-oriented society and one cannot doubt the attention given to children. As keenly observed by Guthrie and Jacobs: “Filipinos have many children, they watch them carefully, and they love to talk about them. It is in many senses a society which takes great pride in its children.”2 Sociological and anthropological studies, in fact, confirm how the child in Philippine society is much desired, wanted and enjoyed.3 Even the framers of the Constitution, the fundamental law of the land, acknowledge how a “major concern” for Filipinos is their children and their children’s welfare.4 Given this environment, the thesis set out to critically examine how this “concern” for children has been translated into Philippine laws and policies, specifically those that relate to the main contexts that children navigate. More importantly, the thesis has explored how the Philippine legal system has defined children and childhood and what this has meant for the recognition and respect of their rights, realities and relationships.
The four sites that are the subject of the four central chapters of this research – the family, the school, the workplace and the youth justice system – are contexts where we can manifestly see the lives of children unfold. These areas represent the sites where not only the realities of children are lived and experienced but also where laws and policies have had a tremendous impact on the lives of children. In looking at these four sites the thesis has taken as its starting point that legal regulation of children shows the changing assumptions, interests and agendas involved in defining children and childhood and that these definitions have in turn shaped the material experiences of children.
1 Allison James, “Understanding Childhood From an Interdisciplinary Perspective” in Peter Pufall and Richard Unsworth, eds, Rethinking Childhood (New Brunswick, New Jersey: Rutgers University Press, 2004) at 25. 2 George Guthrie and Pepita Jacobs, Child Rearing and Personality Development in the Philippines (University Park: Pennsylvania State University Press, 1966) at 1. 3 See e.g. Felipe Landa Jocano, Filipino Social Organization: Traditional Kinship and Family Organization (Metro Manila, Philippines: Punlad Research House, 1998). See also Felipe Landa Jocano, Growing Up in a Philippine Barrio (New York: Holt, Rinehart and Winston, Inc., 1969). 4 Joaquin Bernas, SJ, The Intent of the 1986 Constitution Writers (Quezon City: Rex Bookstore, 1995).
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Any exploration of issues involving children is always difficult as the subject, more often than not, becomes very personal. Because children are believed to carry the burden of representing the values that society holds, children bring with them a part of “us” just as much as we bear a part of “them”. On the one hand, this us/them distinction has driven much of the dominant discourse on children where they are constructed as “the other” – a clear opposition to what is desirable, i.e. rational adults characterized as independent, mature and competent. But at the same time, this being a part of each “other” has also advanced an emerging paradigm where the exploration of childhood involves a shift in how we recognize the personhood of children; how we acknowledge their experiences; and how we respect and understand the relationships that they build and form.
In its exploration of the Philippines, the thesis has shown a legal system that is heavily immersed in the dominant paradigm of children and childhood, but at the same time concretely, if hesitantly, attracted to an emerging paradigm. This dichotomy of legal frameworks that deal with the status, conditions and circumstances of children in the family, the educational system, the work environment and the youth justice system has highlighted not only the distinctive position of children in the Philippines but also an intricate intersection between the country’s colonial history and its indigenous traditions.5 The more than 400 years of colonial rule has brought with it particular Western understandings of children and childhood rooted in the dominant discourse. In particular, childhood is romanticized as a stage of innocence and vulnerability where children are rendered “as immature adults in the making, captured and propelled by an inevitable telos of cognitive, physical, emotional and social development towards some idealised and imagined end.”6 Such an understanding has legitimized a system based solely on the rhetoric of rescue and/or control where the child is viewed as a dependent
5 See e.g. Guthrie and Jacobs, supra note 2 at 84-85 who argue that colonial – particularly American – constructions of childhood cloud rather than clarify understandings of a Filipino child. They write: “If we apply American concepts to the Philippines, we are obliged to conclude that the Filipino is very dependent. He is willing and eager to receive help from his relatives and friends. He does not particularly aspire to be on his own and often seeks the help and cooperation of others in activities which he could carry out himself. But American concepts break down at this point because dependency is not the problem for the Filipino that it is for the American. The concept of dependency with its connotation of conflict and feelings of inadequacy clouds rather than clarifies our understanding of a Filipino child’s developing pattern of relationships with older people…. The pattern is different, with different ideals, different goals, and a different product in adulthood. Instead of dependency, we should consider closeness, cooperation, respect and duty. Giving and receiving help are important interpersonal encounters in the Philippines at all ages. The Philippine ideal is not self-sufficiency and independence but rather family- sufficiency and a refined sense of reciprocity.” 6 Catherine McDonald, “The Importance of Identity in Policy: The Case For and Of Children” (2009) 23:4 Children and Society 241 at 244.
272 and passive “other”.
However, despite the presence of the dominant discourse, the Philippine legal system has also been drawn to an emerging paradigm that re-imagines childhood and repositions children in the contexts where they live and experience their realities. One of the central arguments of the thesis, which explains this attraction is that the emerging paradigm resonates with deeply held indigenous relational values that emphasize one’s connection to the “other”. Within the indigenous value of relational interdependency, the child is acknowledged to share in reciprocal responsibilities expressed through such ideals as closeness, cooperation, respect and duty. These indigenous expressions are, in fact, a recognition of the participation of children. Just as the emerging paradigm reconstructs notions of children and childhood perpetuated by the dominant discourse, the indigenous framework, in turn, re-envisages childhood as a process within a network of relational interdependencies and not simply as a state of dependency or a stage towards an idealized end. Within such a re-imagining of childhood, children are consequently seen as active participants in reciprocal and interdependent responsibilities. This participation of children, as the thesis argues, represents the recognition and respect of the child’s rights, realities and relationships.
In each of the four contexts examined in this study, the thesis first looks at the definitions and manifestations of both the dominant discourse and the emerging paradigm. It then explores how these are expressed, if at all, in Philippine laws and policies and how they shape the discourse of children and childhood – and the corresponding engagements of children. The thesis then presents a contextualized understanding of the emerging paradigm in each chapter using indigenous relational values to recognize and respect a more inclusive and meaningful participation of children.
I. THE DOMINANT DISCOURSE AND ITS PROFOUND INFLUENCE
The thesis has explored how a dominant discourse of children and childhood allows children to be defined not based on their existing identities as manifested in their capacities, experiences and realities but on who (“the child”) and what (“childhood”) they represent. This dominant discourse is driven by deterministic and romantic notions that see childhood as a stage of
273 innocence set aside for growth and play. As such, children are simply viewed as dependent and passive objects. Consequently, the actual engagements of children are obscured and minimized and their opportunities for participation are limited. As demonstrated in this thesis, there has been a long history of the dominant discourse in the Philippines. In the familial context, the dominant discourse has been perpetuated through the legal concept of parental authority whereby parents exercise control over their children. The concept was introduced during the Spanish regime based on the Roman law concept of patria potestas and has since sanctioned the adultist socialization function of the family according to which the child is the sole family member upon whom familial, particularly parental, influence is exerted.
Similarly, in the educational context, laws and policies have been heavily influenced by the socialization function of education to the exclusion of children. This approach was originally based on the American system of education introduced in the Philippines in the early 1900s that was highly centralized – for practical and fiscal reasons – and that was aimed at developing rational and independent citizens.7 Such a system established the overarching authority of educational institutions and the view that children are simply non-citizens and non-adults who need education to develop, improve and grow-up into both citizenship and adulthood.
In the labor context, the legal and policy frameworks in the Philippines saw a steady progression from regulation of child work to its prohibition, confirming a norm of childhood characterized by innocence, dependency, play and schooling. Such a shift in approach was originally triggered by the national campaign against child work burgeoning in the United States, the colonial authority at that time. Thus, laws in the U.S. – such as those banning children under a specific age from working in factories, restricting hours of work, requiring documentation of age for child workers, and strengthening compulsory school attendance – shaped the legal understanding of child work in the Philippines. A powerful translation of this influence has been the use of the language of “child labor” such that the legal system has devised a universal framework of labeling child work as necessarily “harmful” and justifying the over-simplistic strategy of “removal”.
7 See e.g. Ma. Cynthia Rose B. Bautista, Allan B.I. Bernardo, and Dina Ocampo, When Reforms Don’t Transform: Reflections on Institutional Reforms in the Department of Education (Quezon City, Philippines: Human Development Network, 2010) at 1 who explore the handicap of Filipino children of the early 1900s for receiving a foreign system of education “that was in a language not their own, …under a curriculum directly borrowed from the United States, [and] using materials suited for American children.”
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Finally, in the context of the youth justice system, laws and policies have historically been confined to an approach of either saving the vulnerable child or punishing the little criminal. The rhetoric of rescue was largely influenced by the American child-saving movement of the early 20th century while that of punishment was shaped by a Western understanding of individual responsibility. Such influences have led to the belief that youth justice is limited to a choice between the mutually exclusive responses of either rescuing the innocents or controlling the dangerous delinquents.
These responses embodied within the legal discourse have been subsumed under the general framework of protecting the child whereby adults provide the protection and children are the objects of such protective care. Within this framework, “there must be a generation of adults and one of youth, in interaction, and an influence exercised by the first on the second.”8 Such an understanding has highlighted the us/them distinction of the dominant discourse “wherein children are drawn along a trajectory leading them to the (preferred and dominant status) of adult”9 and children are seen as the targets of laws and policies.
The limitation of our understanding of children and childhood to universal and teleological notions of innocence, dependence and development has clearly formed particular images of children and responses to their engagements. This thesis has attempted to demonstrate that the dominant conversations about a child, legal or otherwise, invoke images of “the child” and understandings of childhood underpinned by “an authentic childhood experience.” Thus, the sole and reflexive reliance on a dominant discourse has only served to universalize a particular conception of children and childhood. As such, laws and policies reliant on a dominant paradigm have offered, at best, a restrictive image of the child that fails to articulate – whether deliberately or otherwise – the diversity in the lives and experiences of children. This restrictive image has legitimized particular forms of intervention that have been confined, as this thesis has shown, to either rescue or control where the child is the passive object of the legal system in particular and of society in general. Within such a system, the voices of children have continued
8 Emile Durkheim, Education and Sociology, translated by Sherwood Fox (Glencoe, Illinois: The Free Press, 1956) at 67. 9 McDonald, supra note 6 at 245.
275 to be shut out alienating children and pushing them even more into marginality.10 Worse, children, in fact, have been exposed to even more vulnerabilities as shown by the treatment of “failing” school children, child workers, street children and young offenders.
II. EXPRESSIONS OF THE EMERGING PARADIGM AND ITS TENUOUS FOOTHOLD
Against the backdrop of the dominant discourse of children and childhood, the thesis has looked at the emergence over the last few decades of new ideas about children and childhood. There have been two main influences on this emerging paradigm. The first is the literature of childhood studies with an understanding of a more particularistic and contextually-sensitive account of what it means to be a child of a particular culture and society at a specific point in history. The second is the child rights movement, culminating in the United Nations Convention on the Rights of the Child.
These influences have emphasized the need to recognize and respect the diversity of children’s lives and the equal authenticity of each childhood experience. Such recognition and respect of children’s lives has, in turn, challenged monolithic and universalistic conceptions of “what is expected of young people and what is in effect natural for them.”11 Equally important, the understanding of multiple childhood experiences has repositioned children as active participants in the construction and determination of their own lives, the lives of those around them and of the societies in which they live.12 As such, children are seen not only as moral agents possessing the capacity for moral reasoning, but also as social actors whose dealings and interactions have consequences.13 Within this framework, children are to be considered persons in their own right who are entitled to equal consideration. They are valued for who they are and what they bring to the definition and structuring of the different contexts where they live their realities.
10 Ibid at 243 argues that policies based on totalizing images of children tend to “propel particular, negatively characterised identities which culminate in social exclusion, marginalisation and often impoverishment.” 11 Roger Smith, Doing Justice to Young People: Youth Crime and Social Justice (Oxon: Willan Publishing, 2011) at 16. 12 Alan Prout and Allison James, “A New Paradigm for the Sociology of Childhood? Provenance, Promise and Problems” in Allison James and Alan Prout, eds, Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood, 2d ed (London: The Falmer Press, 1997). 13 Berry Mayall, Towards a Sociology for Childhood: Thinking from Children’s Lives (Buckingham: Open University Press, 2002) at 21 writes that these new understandings see children as agents whose engagements involve “negotiation with others, with the effect that the interaction makes a difference – to a relationship or to a decision, to the workings of a set of social assumptions or constraints.”
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It should be made clear, however, that this emerging paradigm has not denied differences between adults and children. Indeed, children suffer specific and often greater harms not only as children but also because they are children. McDonald aptly frames this understanding of children and childhood:
The ‘new’ approach, while not rejecting the notion that children develop and mature biologically and cognitively, suggests instead that any approach which conceptualises childhood as a universal biologically determined condition misses the nuance and difference arising from temporal, historical and social variance in the lives of children. As such, the ‘new’ sociology attempts to overcome the totalizing impetus embedded in traditional accounts in an effort to respond to difference.14
What is crucial then is how the differences between children and adults are understood. In advancing the recognition and respect of children as children, the emerging paradigm has challenged the articulation of the difference between children and adults in terms of childhood being incomplete, deficient and a less preferred state.15 Instead, the emerging paradigm pushes for a contextualized understanding of children and childhood in which children equally share in the shaping of the experience of childhood in any setting. Within this understanding, children are guaranteed the possibility of being themselves16 or as James and James put it, “children can experiment, can test out their ideas…and can ‘be’ children.”17
These understandings have opened up opportunities for the participation of children where they are afforded the rightful and legitimate claim to “have a say” and adults are called upon to “listen to the voices of children.” James and James expound on this movement:
Listening to the voices of children has become something of a clarion call since the late 1970s, both within and outwith the academy, drawing attention to the pressing need to take into account children’s own interests in and perspectives on the social world. Since the emergence of the new paradigm in childhood studies, no longer
14 McDonald, supra note 6. 15 Ibid. 16 See e.g. Eugeen Verhellen, “Children and Participation Rights” in Pia-Liisa Heilio, Erja Lauronen and Marjatta Bardy, eds, Politics of Childhood and Children at Risk: Provision Protection Participation (Vienna: European Centre for Social Welfare Policy and Research, 1993). 17 Allison James and Adrian James, Constructing Childhood: Theory, Policy and Social Practice (Houndmills, Basingstoke, Hampshire: Palgrave Macmillan, 2004) at 188.
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can children be regarded as the passive output of child-rearing practices nor their social development envisaged as the product of a simple biological determinism (citations omitted).18
Taking these new understandings of children and childhood and what they mean for the participation of children, the thesis has examined each of the four particular contexts where we can manifestly see the lives of children unfold from the perspective of the emerging paradigm. The focus has been both on identifying any openings for the emerging paradigm that have already taken tenuous hold in Philippine law and on using the values of the emerging paradigm to critique dominant tendencies in the current legal framework and to suggest a path for broader reformulation of the legal system. This analysis allows us to see the opportunities and constraints afforded to and/or denied children with respect to their participation. In the language of this thesis, such an examination allows us to see how the legal system has, in fact, recognized and respected children’s rights, realities and relationships.
As demonstrated in the thesis, there have been some concrete expressions of the emerging paradigm in the current Philippine legal system, particularly in education and the youth justice system.19 Even in the labor context, there was a period, although short-lived, when an emerging paradigm was put forward. In these instances, the legal environment has become more cognizant of the diverse realities of children and there is some concrete acknowledgment of the role of the child in defining and structuring the particular context.
Within the educational system, the thesis has demonstrated concrete expressions of the emerging paradigm in laws and policies which acknowledge the role of students within education and recognize their rights within the system. The Education Act of 1982 has expressly recognized students as “members and elements of the educational community.” As such, the law has promoted and safeguarded their welfare and interests by “defining their rights and obligations, according them privileges, and encouraging the establishment of sound relationships between them and the other members of the school community.” This attention to the rights of students has led to victories in court challenges where the fundamental rights and
18 Ibid at 23. 19 As indicated in Chapter I on The Family, the legal framework and the corresponding expressions in laws and policies governing the family are (and have always been understood as) very much an expression of the dominant discourse.
278 freedoms of students within schools have been sustained. As well, the Governance of Basic Education Act of 2001 has acknowledged the different experiences of children by mandating the translation and adaptation of educational policies, programs, projects and services to respond to local needs and reflect local values. To this end, policy reforms informed by a vision of a learner centered educational environment have been initiated and implemented.
Even in the labor context, there was a brief period when the emerging paradigm found expression. In 1992, with the Anti-Child Abuse Law, legislation shifted from prohibiting underage employment to ensuring that there were protective measures for working children. This law, albeit short-lived, articulated the emerging paradigm by diversifying childhood through an implicit recognition of the working child as an equally authentic childhood experience.
With respect to the system of youth justice, the current Juvenile Justice and Welfare Act of 2006 has centrally located the child within the youth justice system, manifesting a clear expression of the emerging paradigm. The 2006 law clearly mandates the participation of children in the formulation and implementation of youth justice programs and policies. The themes of context and participation, characteristic of the emerging paradigm, are expressed in such principles and mechanisms as restorative justice, individualized intervention programs, contextualized diversion and community-based rehabilitation and reintegration. In all these processes, the law has provided for the protection of the rights of children and their active involvement in the system of youth justice. Such an expression in law has allowed for a broader understanding of the diverse realities of children and at the same time has shown greater respect for their capacities.
However, despite these expressions of the emerging paradigm in Philippine law, the thesis has also shown that the effects of such an approach have still been limited. For example, in the education context, court challenges dealing with the engagements of students within schools have been exclusively framed as constitutional questions involving the inviolability of the Bill of Rights in the Constitution. Thus, although these judicial determinations endorse the emerging paradigm by sustaining the fundamental rights and freedoms of students in schools, these cases are exceptional in nature and do not promote systemic changes within education, especially in
279 the daily experiences of students – including younger children – within schools. Equally significant, underneath these cases is still the overriding influence of the dominant discourse that stresses the overarching socialization function of education. Thus the recognition of students’ rights, suggestive of growing support for the emerging paradigm, is justified by reversion to the language of the sole duty of educational institutions to teach citizenship and produce mature and responsible adults. As well, the expressed effort to involve students in the institution of a system of education relevant to their needs evidenced by changes in curriculum and performance standards is, nevertheless, contradicted by the underlying justifications used in educational policy reforms that look to an idealized end of producing competent and independent individuals. In the process of achieving this goal, unfortunately, the actual contributions of students are dismissed as incidental.
In the youth justice system, despite a clear articulation of the participation of children in the current law characteristic of the emerging paradigm, current debates have still focused on concerns of the dominant paradigm – whether to save the pitiful child offender or punish the cunning delinquent. These debates have led to calls for the amendment of the law which has not been understood, much less appreciated, for the participative framework it introduced. Worse yet this law has not been even fully implemented.
The constraints faced by the emerging paradigm demonstrate not only the tenuous foothold of this approach but also the still powerful sway held by the dominant discourse. Consequently, these limitations demonstrate the need to challenge the dominant discourse and at the same time articulate an emerging paradigm that can firmly establish itself where there is recognition and respect of children’s rights, realities and relationships. An-Na’im writes of this elaborate process of challenging dominant norms through the introduction of alternative perspectives:
Global cultural diversity reflects the dominance of certain interpretations of the major norms and institutions of each culture at a given point in time. Although the proponents of dominant interpretations would normally purport to present them as the only ‘authentic’ or ‘legitimate’ position of the culture on the issue in question, different positions can usually be presented within a certain range of possibilities. This is due to the fact that cultural norms and institutions are characterized by varying degrees of ambivalence and flexibility in order to cater for the different needs and circumstances of the population. Cultures also change and evolve over time in response to external influence as well as internal demands.
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There would therefore always be other perspectives which can be articulated to challenge dominant interpretations, and thereby present alternative views of the position of the culture on a particular issue at any given point in time. The prevalence of one perspective or another is therefore open to challenge through change or adjustment in the dynamics of power relations within the culture. It should be noted here that the struggle over cultural resources can take place through action or behaviour as well as verbal articulation. The absence of particular manifestations of such struggle, or the lack of certain forms of challenge and contestation of prevailing interpretations, does not mean that cultural transformation is not happening at any point in time.
To be effective in changing the beliefs, attitudes and behaviour of the relevant population, the proposed alternative perspective must be perceived by that population to be consistent with the internal criteria of legitimacy of the culture, and appreciated as relevant to their needs and expectations. It would therefore seem to follow that the proponents of change must not only have a credible claim to being insiders to the culture in question, but also use internally valid arguments or means of presentation. In other words, the presentation and adoption of alternative perspectives can best be achieved through a coherent internal discourse (italics in the original).20
III. A CONTEXTUALIZED UNDERSTANDING OF THE EMERGING PARADIGM AND CHILDREN’S
PARTICIPATION
It is clear that the challenge for this thesis has been to advance “new” understandings of children and childhood that will ultimately “[redefine] the place of children within the world and thus [make] a real difference to all our lives.”21 The emerging paradigm has provided those understandings. However, as An-Na’im contends, the more one is perceived to be confirming existing beliefs and practices rather than challenging them, the better will be the prospects of wide acceptance and implementation of one’s alternative perspective.
A major ambivalence towards the emerging paradigm in the Philippines and the consequent participation of children lies in the fear that the child will be “taken away”. Such apprehension reveals an understanding that has been instinctively equated with autonomy and self-
20 Abdullahi An-Na’im, “Cultural Transformation and Normative Consensus on the Best Interests of the Child” in Philip Alston, ed, The Best Interests of the Child: Reconciling Culture and Human Rights (Oxford, New York: Oxford University Press, 1994) at 67-68. 21 Bren Neale, “Conclusion: Ideas Into Practice” in Bren Neale, ed, Young Children’s Citizenship: Ideas Into Practice (York, UK: Joseph Rowntree Foundation, 2004) at 172.
281 determination as understood within the liberal tradition22 where individual choice or freedom is highly valued. The participation of children brought about by the emerging paradigm has been understood as a “dangerous centre”23 that disrupts adult-child relations. On this understanding, children are thought to have the freedom to decide for themselves in matters affecting them and can – and should – accept responsibility for their own actions. Some have put this as leaving children to their rights.24
Clearly, however, the understanding of the emerging paradigm and the consequent participation of children espoused by this thesis has a distinctively indigenous character. The focus on the indigenous concept of the kapwa as the basis for the emerging paradigm and the participation of children provides the “folk model” that challenges the dominant discourse of children and childhood but at the same time confirms existing Filipino beliefs and practices. With the use of such an indigenous concept, the emerging paradigm does not necessarily introduce “new” understandings of children and childhood in the Philippines but rather becomes an expression of deeply held indigenous relational values. In turn, participation reflects how the child is really connected to others, with participation being not only an end in itself but also, and as importantly, a connective process where the child shares in reciprocal and interdependent responsibilities. These understandings should allay fears that the emerging paradigm and participation would signify the separation of children from adults. Quite the opposite, they, in fact, establish deep and mutually reciprocal connections between children and adults. The use of the indigenous relational concept of kapwa to ground the emerging paradigm and participation involves a profound sharing of identities. As Jocano explains:
The term kapwa means ‘of the same nature,’ ‘of equal status,’ ‘partnership,’ ‘shared orientation.’ Other writers use it to refer to our consciousness of ‘shared identities.’ This is indicated by the prefix ‘ka,’ meaning ‘co-equal.’ Thus, whenever this word is prefixed another, it suggests a meaning of togetherness – the
22 This autonomous and “individualistic” understanding of child participation was strengthened by a strong child liberation movement from the 1970s to the 1980s. See e.g. Richard Farson, Birthrights: A Bill of Rights for Children (New York: Macmillan Publishing Co., Inc., 1974); John Holt, Escape from Childhood (New York: E.P. Dutton & Co., Inc., 1974). 23 Hilary Lim and Jeremy Roche, “Feminism and Children’s Rights: The Politics of Voice” in Deirdre Fottrell, ed, 10 Years of the UN Convention on the Rights of the Child (The Hague, The Netherlands: Kluwer Law International, 2000) at 51. 24 See e.g. Bruce Hafen and Jonathan Hafen, “Abandoning Children to their Autonomy: The United Nations Convention on the Rights of the Child” (1996) 37:2 Harv Int’l L J 449.
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sharing of the same identity as in kapatid (sibling), kasama (companion), kasintahan (fiancée) and so forth.
Whichever meaning is used to describe it kapwa refers to the emphasis we place on equality of status or of being part of any social collectivity. That is why we speak of kapwa-tao when we speak of fellow human beings…25
As the basis of the emerging paradigm and participation in the Philippines, this indigenous concept of kapwa is not meant to assert individual autonomy as understood in Western liberal traditions, but rather to share one’s self with “the other”. Indeed, there is a substantial difference in the use of “the other” in the Western liberal tradition as opposed to “the other” within the Filipino concept of the kapwa. Enriquez poignantly captures this distinction:
When asked for the closest English equivalent of kapwa, one word that comes to mind is the English word “others.” However, the Filipino word kapwa is very different from the English word “others.” In Filipino, kapwa is the unity of the “self” and “others.” The English “others” is actually used in opposition to the “self,” and implies the recognition of the self as a separate identity. In contrast, kapwa is a recognition of shared identity, an inner self shared with others.26
Through the lens of the kapwa framework, legal norms are not simply understood as impositions upon a passive and dependent recipient-child. Instead, laws and policies, whether relating to the family, the educational system, the labor market or the youth justice system, are seen as building on a network of interdependencies in which participants – including children – engage in reciprocal responsibilities and relationships. Consequently, the intrinsic quality and meaning of actions of the child and towards the child take on a significant legal, social and moral value. This understanding recognizes the inherent right of children as persons, acknowledges the diversity of children’s lives and respects the relationships that they establish and maintain.
Within the familial context, the thesis has recognized that current laws and policies are still very strongly anchored in the tradition of the dominant discourse, using the legal concept of parental authority whereby power and control are exercised over the “person and property” of the child. Thus, legal norms involving engagements of the members of the family – for example, those
25 Felipe Landa Jocano, Asal: The Expressive Core of Filipino Value System (Quezon City, Philippines: Punlad Research House, 1992) at 8. 26 Virgilio Enriquez, From Colonial to Liberation Psychology: The Philippine Experience (Diliman, Quezon City: University of the Philippines Press, 1992) at 43.
283 governing support, guardianship, the family home, discipline and parental consent/advice – have been exclusively understood as rights, duties and obligations of parents towards their children, relegating the latter to the status of passive recipients of the family’s – specifically adults’ – socialization. Here the thesis has challenged the basis for these legal norms, arguing that the family within which these engagements occur is more than an institution characterized by a structure of influence and obligations. In its exploration of the foundations of the Philippine family, the thesis re-imagines the family as a network of relationships based on an indigenous relational framework, providing an avenue for expression of the emerging paradigm. With a reconceived notion of the nature of the family, the thesis shows how legal norms within the current system can be re-interpreted as a recognition of the actual engagements of children that demonstrate their rights, realities and relationships within the family. Children thus are given the occasion to be acknowledged as active participants within the family where they share in defining an identity for the family. As well, the acknowledgment of the role of children in structuring the family reveals the diversity of the experiences of children. This re-imagining of the family and the engagements occurring within it allows for new interpretations of current laws and policies consistent with the emerging paradigm.
In the educational context, the thesis situates the current legal expression of the emerging paradigm within the language of “shared purpose”, “shared governance” and “contextualized system of education” found in the current legal framework. The thesis argues that such an articulation of the emerging paradigm shifts the focus of education from its socializing function – the impetus of the dominant discourse – towards the recognition of the interdependent engagements of the different members of the educational community including children. In this expression, all the members of the educational community, including children, are engaged with their system of education not only through the exercise of their rights, but also through the establishment of their connections as expressed in reciprocal responsibilities and relationships. This articulation of the emerging paradigm once again draws upon deep relational connections evocative of the indigenous kapwa philosophy that allows for the participation of children where they are engaged in a system of deep and reciprocal attachments rather than in a system of control, influence and direction.
In terms of the work environment, the thesis has demonstrated the still pervasive influence of
284 the dominant discourse on the current legal approach to child work. By relying on a legal regime that uses prohibitory language with limited exceptions and subjective standards, the legal system has directed attention towards the prohibition of child work, maintaining a construction of children based solely on dependency and vulnerability. This has pushed children involved in work to the periphery, treating them either as deviants or victims. Although there was a short- lived moment when the law shifted from the mode of prohibiting underage employment to prioritizing protective measures for working children – implying a recognition of the reality of a working child – the legal framework in the labor context has remained largely an articulation of the dominant discourse.
Given the pervasiveness of the dominant discourse in child work laws and policies, the emerging paradigm, with its understanding of the diverse realities of children, has challenged the totalizing construction of the experience of childhood embodied in this dominant discourse. Against the universal prohibitory child work legal regime in the Philippines, the thesis uses the emerging paradigm to highlight the reality that children in the country are, in fact, working or involved in some form of economic activity. As such, the emerging paradigm opens the opportunity for children’s participation by broadening the understanding of childhood to reflect the diversity of the lives of children, their families and the communities they live in, including the phenomenon of child work. Child work is thus shown to involve a whole gamut of contextualized circumstances and relationships that current child work laws and policies, based on a universalized experience of childhood, fail to consider. These contextualized circumstances include: the active role of the child in the decision to work; reasons for working that are not necessarily confined to economics; work environments affected by internal and external factors; child workers who may see their work and the circumstances surrounding it differently from an “outsider” and who do not necessarily dichotomize between work and education.
Because the emerging paradigm allows for the repositioning of children as participants in the structuring of the context where they live their realities, the thesis uses such an understanding to advance a child work policy that is not based solely on age-based restrictions, but rather one that entails an appreciation of children’s capacities, opportunities and constraints, and responsibilities. The emerging paradigm exposes the inadequacy of a legal system that relies on a reflexive characterization of child workers as helpless victims who are coerced into stressful
285 and hazardous environments. In other words, a legal understanding of child work limited to a framework of abuse and exploitation will not sufficiently describe the phenomenon of child work in the Philippines. Instead, laws and policies must consider the role of children in the decision to work and how this provides an opportunity for them to partake in reciprocal responsibilities within a network of interdependent relations. Such understandings once again speak of the kapwa philosophy where articulations of the engagements of children are understood within the context of interdependent connections.
Finally, with respect to the youth justice system, the thesis situates the current legal expression of an emerging paradigm found within the Juvenile Justice and Welfare Act of 2006 within deeply held indigenous philosophies cognizant and respectful of the relational connections between and among the child offender, the victim and the community. As such, children become active participants with the youth justice system where they share in reciprocal responsibilities. In this sense, the youth justice system is not focused merely on the rights and responsibilities of the young offender, rather, it essentially entails the reconnection and re-establishment of relationships involved in youth offending.
Throughout all these contexts, the thesis has shown that the law has been a critical site of engagement for understandings of children and childhood. Just as the law has ascribed representations of the child that are restrictive, partial or worse, misleading which Graham and Fitzgerald lament as resulting in imprisoning a child within a “false, distorted, and reduced mode of being”27 it has, at the same time, also been a site where these roles and identities have been reconceptualized.28 Glendon writes: “But just as we must guard against having exaggerated expectations of what law can accomplish on its own, we must also take care not to fall into the opposite error of unduly minimizing its potential to influence social trends.”29 Cotterrell further asserts: “Law [has the] power to shape the meaning of social relationships and social institutions
27 Anne Graham and Robyn Fitzgerald, “Progressing Children’s Participation: Exploring the Potential of a Dialogical Turn” (2010) 17:3 Childhood 343 at 349. 28 See e.g. Brenda Cossman, “Turning the Gaze Back on Itself: Comparative Law, Feminist Legal Studies, and the Post-colonial Project” (1997) 1997 Utah L Rev 525 at 531 where she locates her work as an exploration of how the “legal discourse is constitutive of women’s subjectivities as wives and mothers, as passive and weak, as subordinate and in need of protection…[but the] law is, at the same time, a site where these roles and identities have been challenged.” 29 Mary Ann Glendon, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (Chicago: University of Chicago Press, 1989) at 311.
286 and indeed, to define personal identity. Law…shapes expectations, responsibilities and constraints attaching to social statuses.”30
IV. MOVING FORWARD
What, then, does the thesis lay out as the way to move forward? Within the family context, an important first step is a re-examination of the legal definition of parental authority. Because the current definition in the Family Code speaks exclusively of the parental right and duty over children within the family, engagements of children within the family are understood as a translation of the rights, duties and obligations of parents towards their children. Consequently, legal norms involving the family are seen as impositions on children that must be observed pursuant to parental authority. In reformulating the definition of parental authority, there must be a clear recognition of the relational nature of the family such that the engagements of both parents and children are interpreted as responsibilities taken on by them in the intimate sharing of collective values that define and structure the Philippine family. Concurrent with such a redefinition of parental authority, there must also be a comprehensive review of all other laws, policies and judicial interpretations relating to engagements within the family to reflect this relational understanding of the family.
In the educational context, a critical opportunity for the legal system is to consider a consolidated law that unequivocally articulates a shift in the framework of education away from an overarching socialization function and towards a shared undertaking. Because the basic framework of education is contained in two laws passed almost 20 years apart, the legal system has to consider a harmonized law that would embody both the language of “shared purpose and cooperation” in the Education Act of 1982 and that of “shared governance” in the Governance of Basic Education Act of 2001.31 With a clear articulation of the function of education in society, legal and policy interpretations of the role of the members of the educational community –
30 Roger Cotterrell, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (England: Ashgate Publishing Limited, 2006) at 99. 31 During the writing of this thesis, Republic Act No. 10533 (2013) An Act Enhancing the Philippine Basic Education System by Strengthening its Curriculum and Increasing the Number of Years for Basic Education, Appropriating Funds Therefor and for Other Purposes was passed and signed into law by the President on May 15, 2013. Although it moves towards the direction of articulating an educational system that is inclusive and participative, it has to confront the issues raised in the Chapter on Education specifically with respect to the BEP.
287 including children – in the educational system can be re-examined with a view of reflecting a system characterized not merely with the exercise of rights, but also with reciprocal responsibilities and relationships. Equally important, a clear legislative mandate will reduce, if not eliminate, erratic policies brought about by political maneuverings in the Department of Education, especially appointments to the Office of the Secretary of Education. Concomitantly, the national educational bureaucracy must continue to shed its centralized powers by sharing accountability with regional and local offices, including the local communities in the adoption and translation of programs, policies and services that respond to and reflect local needs. Within this sharing of responsibility, there must be meaningful, relevant and participative training for the local units – not only for the teachers but also for the local educational community – to undertake a transformative system of education.
In the context of the work environment, the legal system must re-examine its absolutist attitude towards child work that universalizes childhood realities. In its treatment of children at work, the law clearly must consider the “well-developed perspective”32 of the “principal stakeholder” in child work. To this end, the United Nations Committee on the Rights of the Child recommends:
Children working at younger ages than permitted by laws and International Labour Organization Conventions Nos. 138 (1973) and 182 (1999) have to be heard in child-sensitive settings in order to understand their views of the situation and their best interests. They should be included in the search for a solution, which respects the economic and socio-structural constraints as well as the cultural context under which these children work. Children should also be heard when policies are developed to eliminate the root causes of child labour, in particular regarding education.33
As such, laws and policies have to take account of the diversity in the lives of children, especially working children, and acknowledge how their “habitus, dispositions and desires may be quite different and maybe even at odds with that propelled in policies and associated programmes.”34 Concretely, these considerations suggest the need for a critical assessment of the effects of the current prohibitory legal regime on the millions of children in work – or some
32 Martin Woodhead, “Combatting Child Labor: Listen to What the Children Say” (1999) 6 Childhood 27 at 36. 33 United Nations Committee on the Rights of the Child, General Comment No. 12 (2009) The Right of the Child to be Heard, CRC/C/GC/12, 51st Sess (2009) at 26, par. 116. 34 McDonald, supra note 6 at 249.
288 form of economic activity – and the many more that are about to enter the world of work. Such evaluations will inevitably lead to the even more basic task of defining child work.
Finally, in the system of youth justice, the current Juvenile Justice and Welfare Act of 2006 must first be fully implemented before any call for its repeal and/or amendment is considered. The recent release of hundreds of child offenders who were imprisoned before passage of the current law should provide an appropriate test case as to how the mechanisms and processes provided in the law, which reflect the principles of diversion and participation, will respond to young offenders. While the law is being implemented, legal discourse must be channeled away from the conventional and unproductive debates about whether the law has appropriately saved or punished the children caught within the youth justice system. Instead, the focus should be directed on whether the system has restored and addressed the relationships affected by the crime.
In the end, as Neale has rightly observed, “turning the principle of children’s participation into practice is a complex task that involves changing the cultures of adulthood alongside those of childhood.”35 The Committee on the Rights of the Child asserts:
The concept of participation emphasizes that including children should not only be a momentary act, but the starting point for an intense exchange between children and adults on the development of policies, programmes and measures in all relevant contexts of children’s lives.36
On one level this involves a legal discourse that recognizes and respects the rights, realities and relationships of children. But on another level, this also involves shifting attitudes, values and behavior towards children and childhood. What is fundamental is that these legal reforms and shifting values will allow the possibility, as Graham and Fitzgerald declare, “for children to discover and negotiate the essence of who they are and their place in the world.”37
35 Neale, supra note at 21 164. 36 United Nations Committee on the Rights of the Child, supra note 33 at 7, par. 13. 37 Graham and Fitzgerald, supra note 27 at 348-349.
289
BIBLIOGRAPHY
LEGISLATION, EXECUTIVE ISSUANCES AND JUDICIAL RULES (ARRANGED CHRONOLOGICALLY)
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290
A Decree Instituting a Labor Code, Thereby Revising and Consolidating Labor and Social Laws to Afford Protection to Labor, Promote Employment and Human Resources Development and Ensure Industrial Peace Based on Social Justice, Presidential Decree No. 442 (1974).
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292
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293
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294
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SECONDARY MATERIAL: ARTICLES
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Birnbaum, Rachel, Nicholas Bala & Francine Cyr. “Children’s Experiences with Family Justice Professionals in Ontario and Ohio” (2011) 25:3 Journal of Law, Policy and the Family 398.
Bitensky, Susan. “Spare the Rod, Embrace our Humanity: Toward a New Legal Regime Prohibiting Corporal Punishment of Children” (1998) 31 U Mich J L Reform 353.
Brennan, Samantha & Robert Noggle. “The Moral Status of Children: Children’s Rights, Parent’s Rights and Family Justice” (1997) 23:1 Social Theory and Practice 1.
Camacho, Agnes Zenaida. “Family, Child Labour and Migration: Child Domestic Workers in Metro Manila” (1997) 6 Childhood 57.
Cohen, Phil. “The Same Old Generation Game” (1997) 28:1 Criminal Justice Matters 8.
Cossman, Brenda. “Turning the Gaze Back on Itself: Comparative Law, Feminist Legal Studies, and the Post-colonial Project” (1997) 1997 Utah L Rev 525.
Domingo, Lita & Maruja Asis. “Living Arrangements and the Flow of Support Between Generations in the Philippines” (1995) 10 Journal of Cross Cultural Gerontology 21.
Federle, Katherine Hunt. “Rights Flow Downhill” (1994) 2 Int’l J Child Rts 343.
Gallagher, Michael. “Foucault Power and Participation” (2008) 16 Int’l J Child Rts 395.
Graham, Anne & Robyn Fitzgerald. “Progressing Children’s Participation: Exploring the Potential of a Dialogical Turn” (2010) 17:3 Childhood 343.
Hafen, Bruce & Jonathan Hafen. “Abandoning Children to their Autonomy: The United Nations Convention on the Rights of the Child” (1996) 37:2 Harv Int’l L J 449.
Handler, Joel & Margaret Rosenheim. “Privacy in Welfare: Public Assistance and Juvenile Justice” (1966) 31 Law & Contemp Probs 377.
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Haydon, Deena & Phil Scraton. “‘Condemn A Little More, Understand a Little Less’: The Political Context and Rights Implications of the Domestic and European Rulings in the Venables-Thompson Case” (2000) 27:3 Journal of Law and Society 416.
Hill, Malcolm, et al. “Moving the Participation Agenda Forward” (2004) 18 Children and Society 77.
Lundy, Laura. “Voice is Not Enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child” (2007) 33 British Educational Research Journal 927.
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Marcelino, Elizabeth Protacio. “Towards Understanding the Psychology of the Filipino” (1990) 9:1-2 Women and Therapy 105.
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Protacio-de Castro, Elizabeth, et al. “Walking the Road Together: Issues and Challenges in Facilitating Children’s Participation in the Philippines” (2007) 17:1 Children, Youth and Environments 105.
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Scott, Elizabeth. “The Legal Construction of Adolescence” (2000) 29 Hofstra L Rev 547.
Scott, Elizabeth & Laurence Steinberg. “Blaming Youth” (2003) 81 Tex L Rev 799.
Shier, Harry. “Pathways to Participation: Openings, Opportunities and Obligations” (2001) 15:2 Children and Society 107.
Sinclair, Ruth. “Participation in Practice: Making it Meaningful, Effective and Sustainable” (2004) 18 Children and Society 106.
Smith, Roger. “Childhood, Agency and Youth Justice” (2009) 23:4 Children and Society 252.
Smith, Roger. “Welfare vs. Justice – Again!” (2005) 5:3 Youth Justice 3.
Sobritchea, Carol. “The Ideology of Female Domesticity: Its Impact On the Status of Filipino Women” (1990) Review of Women’s Studies 26.
Such, Elizabeth & Robert Walker. “Young Citizens or Policy Objects? Children in the ‘Rights and Responsibilities’ Debate” (2005) 34:1 Journal of Social Policy 39.
Theis, Joachim. “Performance, Responsibility and Political Decision-Making: Child and Youth Participation in Southeast Asia, East Asia and the Pacific” (2007) 17:1 Children, Youth and Environments 1.
Wald, Michael. “Children’s Rights: A Framework for Analysis” (1979) 12 UC Davis L Rev 255.
Wall, John. “Human Rights in Light of Childhood” (2008) 16 Int’l J Child Rts 523.
West, Andy. “Power Relationships and Adult Resistance to Children’s Participation” (2007) 17:1 Children, Youth and Environments 123.
Woodhead, Martin. “Combatting Child Labor: Listen to What the Children Say” (1999) 6 Childhood 27.
OTHER MATERIALS
Adriano, Joel. Wasted Youth in the Philippines, online: Asia Times
309
Aragon, Chito. Girl Stabbed by Teen She Called “Prostitute”, online: Philippine Daily Inquirer
Bañez-Sumagaysay, Marieta. “Emerging Issues and Concerns on the Working Youth in Eastern Visayas” online: Child Protection in the Philippines: Philippine Resource Network
Bessell, Sharon. Adult Attitudes Towards Children’s Participation in the Philippines, online: (2007) Crawford School of Economics and Government The Australian National University
Boncocan, Karen & Tonette Orejas. 13-Year-Old Boy Shoots Alleged Lover, Then Self, online: Philippine Daily Inquirer
Council for the Welfare of Children and UNICEF. “The National Framework for Children’s Participation: A Guide in Promoting and Upholding Children’s Participation in the Philippines” online: UNICEF
Esguerra, Emmanuel. “An Analysis of the Causes and Consequences of Child Labor in the Philippines” online: International Labor Organization: ILO-IPEC
Fernandez, Rosemarie & Melba Manapol. “A Study on Child Labor Situation in Southern Philippines: The Working Children in International Seaports of Sasa, Davao City and Makar, General Santos City” online: Child Protection in the Philippines: Philippine Resource Network
Institute on Church and Social Issues, Ateneo de Manila University. “Education Integration” online: Child Protection in the Philippines: Philippine Resource Network
International Labor Organization-International Programme for the Elimination of Child Labour (ILO-IPEC). Attacking Child Labour in the Philippines: An Indicative Framework for Philippine-ILO Action based on the National Planning Workshop on Child Labour held in Manila from July 26 to 29, 1994.
Knowles, Jessica. Still Behind Bars: Child Incarceration and Juvenile Justice Policy in the Philippines, online: People’s Recovery, Empowerment and Development Assistance (PREDA) Foundation
310
Mariano, Dan. Pangilinan Law and “Batang Hamog”, online: The Manila Times
Mariñas, Bella & Maria Pelagia Ditapat. “Philippines: Curriculum Development” online: United Nations Educational, Scientific and Cultural Organization (UNESCO) - International Bureau of Education (IBE)
National Economic and Development Authority-UNICEF. “Child Labor Survey Report of Selected Provinces in Southern Tagalog Region” online: Child Protection in the Philippines: Philippine Resource Network
National Statistics Office. “2000 Family Income and Expenditure Survey (FIES) Final Release on Poverty” online: National Statistics Office: NSO
National Statistics Office, 2001 Survey on Children 5-17 Year Old Final Report (Philippines: International Labor Organization, 2003).
National Statistics Office, 2010 Census and Housing Population, online: National Statistics Office, Republic of the Philippines
National Statistics Office. The Age and Sex Structure of the Philippine Population: (Facts from the 2010 Census), online: National Statistics Office, Republic of the Philippines
Ong, Michelle. “The Role of the Family in Philippine Society and in the Protection of Children’s Rights” online: Child Protection in the Philippines: Philippine Resource Network
Ozaeta, Arnell. Teener to Go Scot-Free for Rape, Near-Killing, online: The Philippine Star
PREDA Foundation. “Report on the Detention of Children and Lapses in the Implementation of the Comprehensive Juvenile Justice System and Welfare Act of 2006 (RA 9344)” (10 December 2008), online: People’s Recovery, Empowerment and Development Assistance (PREDA) Foundation,
Protacio-de Castro, Elizabeth. “Negotiating Trust and Power: Parenting in the Context of Conflict Resolution” online: Child Protection in the Philippines: Philippine Resource Network
311
Recuenco, Aaron. PNP Chief Favors Amending Law on Juveniles Charged with Crimes, online: Manila Bulletin
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Salaverria, Leila. Jailing Kids No Answer to Rising Criminality, Says DSWD Exec, online: Philippine Daily Inquirer
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