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Child Participation in the Philippines

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Child Participation in the Philippines 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. iii 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. iv 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. v 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
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