Sunday, November 11, 2007

New rule on children facing drugs cases

I have digested below the very fresh EN BANC A.M. No. 07-8-2-SC took effect (“RULE ON CHILDREN CHARGED UNDER REPUBLIC ACT NO. 9165 OR THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, in relation to the Rule on Juveniles in Conflict with the Law, the Rule on the Examination of a Child Witness,

Republic Act No. 9344, and Republic Act No. 8369, also known as The Family Courts Act of 1997). It took effect on November 5, 2007.

The Rule aims “to provide a rule of procedure in the Family Courts or the Regional Trial Courts, as the case may be, for children charged with any of the acts penalized under The Comprehensive Dangerous Drugs Act of 2002”, taking into consideration their “developmental age and potential to recover from dependence on drugs and to stop substance abuse, so that they can live productive, substance-free and crime-free lives”.

The Rule shall be “construed and interpreted liberally in favor of the child in conflict with the law, consistent with the best interest of the child, the declared state policy, the rights of the child in conflict with the law and the principle of balanced and restorative justice”.

A child charged before the prosecutor’s office with a criminal offense not penalized by the Act (RA 9165), but with an imposable penalty of imprisonment of not less than six years and one day, shall be subjected to a “mandatory drug test”. (Note: My petition [with companion cases} in the Supreme Court questioning the constitutionality of certain parts of Art. 3 of RA 9165 in re: suspicionless, random and mandatory drug tests, in relation to the 4th Amendment, are still pending in the Supreme Court).

A positive screening laboratory test must be confirmed for the positive finding to be valid in court.

A child who is a drug dependent or suspected to be one may ─ personally or through the parent, guardian or relative within the fourth degree of consanguinity or affinity ─ “apply to the Board or its duly recognized representative for treatment and rehabilitation of the drug dependency”. The Board shall then “submit the matter to the court, which shall immediately order that the child be examined for drug dependency”.

The court shall likewise “direct the court social worker to prepare and submit to it a Case Study Report” for its consideration pursuant to Section 19 of the Rule on Juveniles in Conflict with the Law.

The examination for drug dependency shall be conducted by an accredited physician of the DOH. If the results show that the child is a drug dependent, “the court shall order that the child undergo treatment and rehabilitation in a Center designated by the Board for a period of not less than six months”.

A child drug dependent may be placed under the care of a DOH-accredited physician if: “(a) no Center is near or accessible to the residence of the child; or (b) where the child is a first-time offender and nonconfinement in a Center will not pose a serious danger to his/her family or community”.

The court shall also direct that the intervention treatment program include the active participation and collaboration of “the child’s family, the law enforcers, the child’s school, if any, various community organizations dealing with at-risk youths, and the court system itself”.

Confinement in a Center for treatment and rehabilitation or under the care of a DOH-accredited physician shall “not exceed one year”, after which time the head of the Center or the said physician, as the case may be, shall apprise the court, as well as the Board, of the status of the treatment and rehabilitation of the child. The court, together with the Board, shall determine “whether further confinement or care will be for the welfare and best interest of the child drug dependent and his/her family or the community”.

A child drug dependent under the “voluntary submission program” who is “finally discharged from confinement” shall be “exempt from criminal liability” under Section 15 of the RA 9165, subject to the following conditions:

(a) He/she has complied with the rules and regulations of the Center or those imposed by the DOH-accredited physician, the applicable rules and regulations of the Board, including the aftercare and follow-up program “for at least eighteen months following temporary discharge from confinement” in the Center or, in the case of a drug dependent placed under the care of the DOHaccredited physician, the after-care program and follow-up schedule formulated by the Department of Social Welfare and Development (DSWD) and approved by the Board;

(b) He/she has never been charged with or convicted of any offense punishable “under the Act, the Dangerous Drugs Act of 1972 or Republic Act No. 6425, as amended, the Revised Penal Code, as amended, or any other special penal law”;

(c) He/she has “no record of escape from a Center” or, if an escapee, has “surrendered personally or through the parents, guardian or relative within the fourth degree of consanguinity or affinity, within one week from the date of the escape”; and

(d) He/she “poses no serious danger to his/her person, family or community”.

Should the child fail to comply with any of the above conditions, the case shall be “referred to the prosecutor for regular preliminary investigation”.

Upon certification by the Center or the DOH-accredited physician that the child drug dependent under the voluntary submission program may be temporarily released, the court shall order such release on condition that the child shall report to the DOH for after-care and follow-up treatment, including urine testing, for a period not exceeding eighteen months under such terms and conditions that the court may impose.

If at any time during the period of after-care and follow-up program, the child is certified to be rehabilitated, the court shall order his/her “final discharge, subject to the provisions of Section 12 of this Rule, without prejudice to the outcome of any pending

case filed in court”.

Should the DOH find that during the initial after-care and follow-up program of eighteen months, the child “requires further treatment and rehabilitation” in the Center or by the DOH-accredited physician, he/she “shall be so recommitted”. Thereafter, he/she “may again be certified for temporary release and ordered released” for another after-care and follow-up program pursuant to Section 13 of this Rule.

A child drug dependent under the voluntary submission program who is discharged as

rehabilitated by the Center or DOH-accredited physician, but does not qualify for exemption from criminal liability under Section 55 of the Act, may be charged under the provisions of the Act.

However, “the court upon its discretion may order that the child be placed on probation and that he/she undergo community service in lieu of imprisonment and/or fine, without prejudice to the outcome of any pending case filed in court”.

A child drug dependent under the voluntary ubmission program who is “not rehabilitated after a second Commitment” to the Center or a DOH-accredited physician under the voluntary submission program shall be charged and prosecuted, upon recommendation of the Board, with violation of “Section 15 of the Act”. If convicted, the child shall be credited for the period of confinement and rehabilitation in the Center or by the DOHaccredited physician, in the service of the sentence. In addition thereto, the child shall enjoy all the rights provided under the Rule on Juveniles in Conflict with the Law that are not inconsistent with the provisions of the Act.

If, subsequent to a recommitment, the child once again escapes from confinement, he/she shall be charged with violation of Section 15 of the Act and be “subjected to compulsory confinement upon order of the Board or upon order of the court, as the case may be”.

The judicial and medical records of a child drug dependent under the voluntary submission program shall be confidential and shall not be used against him/her for any purpose, except to determine how many times the child by himself/herself, or through his/her parent, guardian, or relative within the fourth degree of consanguinity or affinity underwent voluntary submission for confinement, treatment and rehabilitation or commitment to a Center or to the custody and care of a DOH-accredited physician under the program.

Where the child is not exempt from criminal liability under Section 55 of the Act, or when he/she is not rehabilitated under the voluntary submission program, or when he/she escapes again from confinement after recommitment, the records mentioned in the immediately preceding provisions that are necessary for conviction may be utilized in court as evidence against such child.

Notwithstanding any law, rule and regulation to the contrary, any child found to be dependent on dangerous drugs who “refuses to apply under the voluntary submission program” shall, upon petition by the Board or any of its authorized representatives, be confined for treatment and rehabilitation in any Center duly designated or accredited by the DOH.

A petition for the confinement to a Center of a child alleged to be drug dependent may be filed by any person authorized by the Board with the Family Court, or, in the absence thereof, the Regional Trial Court of the province or city where such person is found.

After the petition is filed, the court shall immediately order a hearing, fix a date therefor, and serve a copy of such order on the child and his/her parents, guardian or custodian.

If the facts established at the hearing so warrant, the court shall order the child to be examined by two physicians accredited by the Board. If both physicians conclude that the child is not a drug dependent, the court shall order his/her discharge. If either physician finds the child to be a dependent, the court shall conduct a hearing and consider all relevant evidence which may be offered.

If a child charged with an offense where the imposable penalty is imprisonment of less than six years and one day is found by the prosecutor or by the court, at any stage of the proceedings, to be a drug dependent, the prosecutor or the court, as the case may

be, shall suspend all further proceedings and transmit copies of the records of the case to the Board.

In the event the Board determines, after the medicalexamination, that public interest requires that such child drug dependent be committed to a Center for treatment and rehabilitation, it shall file a petition for commitment with theFamily Court or, in the absence thereof, the Regional Trial Court of the province or city where the child is being investigated ortried: Provided, that where a criminal case is pending court, thepetition shall be filed in such court. The court shall take judicial notice of the prior proceedings in the case and shall proceed to hear the petition.

Thereafter, the prosecution of the child for any offense punishable by law shall be instituted or shall continue, as the case may be. In case of conviction and the child has been certified by the treatment and rehabilitation center to have maintained good behavior, the judgment shall indicate that the child shall be given full credit for the period he/she was confined in the Center: Provided, however, that when the offense is for violation of Section 15 of the Act and the child is not a recidivist, the penalty therefor shall be deemed to have been served in the Center upon the release of the child therefrom after certification by the Center and the Board that the child has been rehabilitated.

A child committed under Sections 20, 22 and 23 of this Rule who is finally discharged

from confinement shall be exempt from criminal liability for the use of a dangerous drug under Section 15 of the Act, without prejudice to the outcome of any pending case filed in court.

A child who is not rehabilitated after a second commitment to the Center shall, upon conviction by the appropriate court, suffer the same penalties provided for under Section 15 of the Act, without prejudice to the outcome of any pending case filed in court.

If a child is under eighteen years of age at the time of the commission of the offense and is found guilty thereof, the court shall determine and ascertain any civil liability. However, instead of pronouncing the judgment of conviction, the court shall place the child under suspended sentence, “without need of application”. Suspension of sentence shall still be applied even if the child is already eighteen years of age at the time of the conviction.

While under suspended sentence, the child shall be under the supervision and rehabilitation surveillance of the Board, under such conditions that the court may impose for a period ranging from six to eighteen months.

If the child under suspended sentence complies with the applicable rules and regulations of the Board, including confinement in a Center or care of a DOH-accredited physician, the court, upon a favorable recommendation of the Board or the physician, shall discharge him and dismiss all proceedings under Section 11 of the Act.

The child so discharged shall not be held thereafter to be guilty of perjury, concealment or misrepresentation by reason of failure to acknowledge the case or recite any fact related thereto in response to any inquiry made for any purpose.

If the child violates any of the conditions of the suspended sentence, the applicable rules and regulations of the Board exercising supervision and rehabilitative surveillance, including the rules and regulations of the Center should confinement be required, he/she shall be returned to the court which, after due notice and hearing and after finding sufficient basis therefor, shall execute the judgment of conviction.

In cases involving violations of Sections 11 and 15 of the Act, the court, upon application and in its discretion, may place the child under probation. “Probation may still be availed of even if the sentence provided under the Act is higher than that provided under the Probation Law”.

Any parent or guardian who, without valid reason, refuses to cooperate with the Board or any concerned agency in the treatment and rehabilitation of a child, or in any manner prevents or delays the after-care, follow-up or other programs for the welfare of the childdrug dependent, whether under a voluntary or a compulsory submission program, may be cited for contempt by the court.

Atty. Manuel J. Laserna Jr.

LCM Law, Las Pinas City, Philippines

lcmlaw@gmail.com

No comments:

Post a Comment