Perfecto Caparas

(The author is a lawyer and the convener of the Coalition to Stop Child Detention Through Restorative Justice.)

Lean, agile and barely 1.2metres tall, 11-year-old Julian (not his real name) could hardly be seen amid the mounds of flesh huddled together in a decrepit, tiny police cell measuring only 12 square metres beside a river.

The police jail nestles in Metro Manila's bustling premier city splashed with mega-malls, and just a spitting distance from rows of restaurants and karaoke bars. Packed with five other kids and 19 adult inmates, the small inferno not only swarms with half-naked and tattooed prisoners but also lacks adequate ventilation and sanitation facilities. The jailbirds only survive with food brought to the cell by relatives of some of the prisoners, which they share among themselves according to the command of their mayores who enforces this age-old tradition am o n g c e l l m a t e s . M a y ore si s prisoners' parlance for a jail chief who is usually the longest staying prisoner or trustee of the lawmen.

During the period of his police detention, Julian, just like the rest, was deprived of access to any medical, social, psychological and legal assistance and services. 

He even confided to the author that upon arrest, a policeman kicked him on the stomach, throwing him off the ground, crushing his frail body against a wooden door. He writhed in pain. The lawman was trying to force him to return the necklace that he allegedly snatched from a woman on board
a passenger jeepney, the common means of public transportation in the Philippines. Julian, who lives by peddling cigarettes to motorists, knew nothing about the robbery.

Nonexistent Prisoners

Julian's condition mirrors the risks and dangers of being held in police custody. Elsewhere in the Philippines, other children suffer from a far worse fate.

In Davao City, which is located in the southern province of the archipelago with a population of 82.7 million, for example, "incorrigible" children
suspected of criminal involvement are systematically liquidated with impunity by death squads believed to be backed up by state functionaries.

The older children detained with Julian were tattooed by the adult prisoners with symbols of gangs. "They (adult prisoners) threaten us. They beat us," said the children who got tattooed.

Other children who suffered from police detention similarly complain of torture, rape, tattooing and other brutalities inflicted on them by
police officers and adult prisoners. More and more children suffer from police arrest and detention without judicial warrant. According to
figures from the Office of Philippine Senator Francis Pangilinan, 20,000 children were detained last year. The Public Attorney's Office reported
that it rendered assistance to 13,300 children in 2002. That means, on the average, 36 to 54 children get arrested and detained with adults in
cramped police jails every day all over the country. All of them are virtually arrested without judicial warrants but subsequently charged r o u t i n e l y i n c o u r t b y i n q u e s t prosecutors, without due regard to t h e i r s p e c i a l e n t i t l e m e n t s a s children, such as protection from tattooing and segregation from adult prisoners. Those children include beggars, scavengers, street hawkers, prostituted girls and street urchins. Even those with mental disabilities
are not spared from the brutal de facto policy of the Philippine government of jailing kids with adults. A growing number of the children are held for drug-related offences.

Yet, officially, they do not exist. 

Official Approval

The police practice of jailing children with adults under the aegis of no less than President Gloria M a c a p a g a l -A r r o y o a n d h e r concerned cabinet officials reeks of a d i s c r i m i n a t o ry f l a v o u r a n d character.

Based on the 1990-2002 statistics of the Molave Youth Home, an exclusive youth detention centre run by the s o c i a l s e rv i c e s d e v e l o p m e n t department of Quezon City, most of these children prisoners facing trial come from families with a monthly income between 2,000 pesos and 4,000 pesos (US$ 35.7-$ 71.4). This is way below the 6,817 pesos monthly income needed by a family of six to live decently in 2000, according to the government's National Economic and Development Authority. These children, aged between 15 and 17, barely have adequate education. They are ignorant of their own human rights and the intricate processes of the criminal justice s y s t e m , m a k i n g t h e m m o r e vulnerable to state abuses. They lack
the power and the voice to assert and stand up for their own rights in the f a c e o f t h e i n s t i t u t i o n a l i s e d violations ruthlessly committed by state agents. They suffer in meek silence and submission as practically all stakeholders acquiesce in the practice by virtually justifying its perpetuation on the pretext of l a c k i n g f a c i l i t i e s . T h e l a c k o f grassroots mechanisms to combat these violations only serves to fortify the wall of impunity permeating this
long-running violation. 

President Arroyo-in spite of her authority as the chief executive who is sworn to uphold the rule of law and do justice to every man, woman and child-fails and refuses to stop t h i s i l l e g a l i t y a n d b a r b a r i s m committed against the children. She knows the situation. Yet she does nothing to stop and prevent the illegal, widespread, organised and s y s t e m a t i c p r a c t i c e o f j a i l i n g children with adult crime suspects. This is despite the fact that both Philippine and international laws forbid the commission of this dastardly deed that criminalises the young.

As the commander in chief, the president -through her Secretary of the Department of Interior and local governments -exercises control and
supervision over the officers and personnel of the Philippine National Police who directly perpetrate this serious human rights violation with impunity.
In spite of the welter of laws giving special protection to children, state a u t h o r i t i e s-r a n g i n g f r o m community guardsmen (known in local parlance as barangay tanod) and police officers to top cabinet officials and the president herself-fail to stop the despicable and gruesome practice of police detention that Julian and other children from mostly poor families get routinely s u b j e c t e d t o . T h a t t h e r e b y institutionalises and perpetuates the ignominious violations of children's inviolable human rights without any form of redress.

President's Tacit Consent

Although the matter of mixing up children with adult prisoners under sub-human conditions had been personally brought to her attention by Fr Anthony Ranada and the author in January 2003, President Arroyo chose to sweep the problem under the rag. She perfunctorily referred the matter to Silvestre Afable, secretary of the presidential management staff who, in turn, referred it to the Department of Social Welfare and Development.

The latter, however, in its response on April 1 last year, simply begged the question by harping on the law supposedly protecting children in violation of the law, without alluding at all to the insidious state practice o f j a i l i n g c h i l d r e n w i t h a d u l t prisoners in police jails nationwide. 

The Office of the President, speaking through presidential spokesman Ricardo Saludo, vowed to stop the practice last December 11. Fielding
questions from the press, Saludo said: "We will speedily take any measures necessary in order to address any injustice or violation of rights that may be happening. At this point we do not have any solid information yet on the situation and we'll have to look into this."

Yet the official pronouncement that was published in TODAY newspaper turned out to be merely intended for public consumption. The mixing up
of children with adult prisoners persists without letup to this day.

Not a single police official has been investigated and prosecuted for this egregious violation of the human rights of the children. This is not
only on account of the esprit de corps pervasive among members of t h e p o l i c e f o r c e a n d o t h e r government agencies but more importantly because of the seemingly tacit consent by Arroyo herself and her top officials to perpetuating the illegal practice.

Official Inaction 

The class action suit filed by five children prisoners with the support of the Coalition to Stop Child Detention Through Restorative Justice against the president and her top cabinet and police officials on December 10 last year demanding that the practice be immediately and unconditionally stopped has yet to be acted upon by the Office of the Ombudsman. 

The Department of Justice has also y e t t o a c t o n a m a s s p e t i t i o n spearheaded by the coalition on January 7 this year for inquest prosecutors all over the country to be required to ensure that no children are detained by the police especially in the company of adults. T h e p e t i t i o n a l s o d e m a n d e d  guarantee of the right of children under arrest to diversion or to be turned over to their next-of-kin, s o c i a l w o r ker s o r r e s p o n s i b l e members of the community at the point of arrest.

This, after all, is the essence of the law (Section 8 of the Rules and Regulations on the Apprehension, Investigation, Prosecution and Rehabilitation of Youth Offenders a n d A r t i c l e 1 9 1 o f t h e C h i l d a n d Yo u t h We l f a r e C od e [Presidential Decree 603]) requiring children to be diverted at the point
of arrest to any of the above persons pursuant to the children's best interests.

But Arroyo and her cabinet officials opt not only to pay lip service to the human rights of children prisoners but also to conceal their own brutality from the rest of the world. 

In their second country report to the United Nations Committee on the Rights of the Child, state officials -knowing fully well that the practice is brazenly illegal-concealed by omitting any mention at all of the state norm and de facto policy of routinely detaining children with adults in cramped police jails all over the country. 

Yet the deliberate, widespread, o r g a n i s e d a n d s y s t e m a t i c c o -mingling of children with adults in police jails under sub-human conditions and deprived of access to any assistance and services per se constitutes a cruel, inhumane and d e g r a d i n g t r e a t m e n t a n d punishment outlawed by the 1987 Philippine Constitution as well as the Universal Declaration of Human R i g h t s a n d th e I n t e r n a t i o n a l Covenant on Civil and Political Rights (ICCPR).

Crime against Humanity

Such practice constitutes a crime against humanity. Inviolable human rights inhere in the person of children prisoners as human beings and as children entitled to special protection. The ICCPR that the Philippines ratified on October 23, 1986 and the United Nations Convention on the Rights of the
Child (UNCRC) that came into force on September 2, 1990 prohibit the mixing up of children with adult prisoners, except under specific circumstances. Having attained the status of quasi-universality, the UNCRC (as far as the matter of segregation of children prisoners from adults, at least, is concerned) should be considered-like torture and slavery-as a non-derogable right, as a principle of customary international law, permitting of no deviation whatsoever by the state. This is so, considering further that as early as 1924, the League of Nations had come out with the Geneva Declaration on the Rights of the Child guaranteeing special protection to children. 

B a s e d o n t h e h o l d i n g s o f t h e L i m b u r g P r i n c i p l e s a n d the Maastricht Guidelines-which should also be construed to apply to civil and political rights owing to their symbiotic, interdependent and i n d i v i s i b l e c h a r a c t e r v i s-à -v i s economic, social and cultural rights -the state has the obligation to
respect, protect and fulfill the human rights of children prisoners.

As far as their obligation to respect human rights is concerned, all Arroyo, her top cabinet and police officials have to do is to cease and desist immediately, permanently and unconditionally from further jailing children with adult prisoners, e s p e c i a l l y u n d e r s u b -h u m a n c o n d i t i o ns w i t h o u t a c c e s s t o adequate psychological, social, medical and legal services and assistance.

Mechanisms

The Philippine experience shows that state functionaries have no q u a l m s i n p e r p e t u a t i n g institutionalised human rights violations even against children
prisoners. They mask their egregious deeds with the sugar-coated language of the law to cover up for what is really obtaining on the ground (as if
harping on the law, just like what Philippine officials did in their report to the U. N. Committee, can b e e q u a t e d w i t h i t s a c t u a l observance).

It is this schism between law and reality that has to be narrowed down by demanding and enforcing official accountability-by pressing for their
culpability for such atrocities -by means of mechanisms for enforcing human rights duties on the part of state officials.

Given its vitality and dynamism, the global community of human rights advocates should farther push the frontiers of international human rights law by elevating to the status of a crime against humanity the state practice of jailing of children with a d u l t s u n d e r i n h u m a n e a n d oppressive conditions in a systematic, organised and widespread manner. 

State officials should be held to account for their egregious deeds by virtue of the principle of command responsibility. This would strip state
officials like President Arroyo of sovereign immunity from suit -upon whom the doctrine of command responsibility properly applies -and
make them accountable before the bar of justice.