Doli incapax

Are we to return to savage days when no distinction stood between children and adults in the commission of offenses? When the central aim of criminal justice is punishment, retribution, deterrence, we are doomed to witnessing scenes like that in London where, in 1833, a 9- year-old boy was sentenced to hang for stealing paint. In the US, in 1872 a 10-year-old boy was sentenced to death for his role in a robbery and murder. Fortune Ferguson Jr. was actually executed in Florida in 1927 at the age of 13. Here at home, Marcial “Baby” Ama was sent to the chair in 1961. He was 16.

Lex Talionis. This obsession with the lowering of the minimum age of criminal responsibility (MACR) is characteristic of the classical theory of criminal law. Man is seen as essentially moral and with an absolute free will to decide on right vs. wrong. When he chooses to do wrong, there is a corresponding, mechanically applied proportionate penalty. The intention is retribution. This is President Rodrigo Roa Duterte’s an eye for an eye mindset. 

The contra approach, the positivist theory, concedes that Man, at times, is simply overcome with the urge to do wrong even against his better judgment. Predetermined punishments are not effective to combat what are essentially natural phenomena. Penalties are seen as reformative instruments. 

This debate between retributive justice as against restorative/transformative justice in the context of minors has continued to confound policy makers. MACR as a public issue is eclipsed only by the death penalty in the minds and hearts of concerned citizens. Hence, the place of precedence it has taken in the recent public debate.

Too young. For centuries, there was a conclusive presumption under the common law (doli incapax) that children up to a certain age were incapable of criminal intent. The classical theory that saw in Man the absolute voluntariness to discern, also saw in minors the lack of that capacity to discern. The science to affirm the proof of the proposition was not even extant then.

Society has since become more enlightened. And science has supplied the evidence that, indeed,  there is still an immaturity in neurodevelopment at that early adolescence stage. 

Developmental milestones are governed by law. As repeatedly pointed out in public discussions, they are not old enough to marry, to contract nor to vote. They can’t buy a drink, a smoke or even a movie ticket. This is, by no means, an exhaustive list. But here are SIX evidentiary proofs confirming that the State already knows that minors do not have the same capacity to discern as adults. 

Another goose, another gander. Last column we noted how the administration fervidly seconded DFA Sec. Teddyboy Locsin in the Passport Breach fiasco. They agreed that applicants for passport renewal should no longer be required to resubmit NSO true copies of their birth certificates. Sec. Panelo, in concurrence, understood that the data is presumed to be already in the system. With  the applicant having no fault in the loss of his data, why should the burden be on him to prove his previous compliance?

Sec. Sal has not been as quick to use Malacanang’s mantle to cloak the nagging question on the MISLATEL franchise revocation. At last Wednesday’s Senate oversight hearing, when former Senate President Frank Drilon pointed out the infirmities in the MISLATEL franchise and argued that the same had been ipso facto revoked, Sec. Sal simply said the government would just look for another company.

Bubble bursting. The rush to get a third telco viable and the haste in awarding it to MISLATEL has produced this seemingly unending comedy of errors that MISLATEL, Udenna and Chelsea have had to manage. Their response to Senator Drilon was that the National Telecommunications Commission cleared them when the latter published a list of qualified telcos. So take it up with the NTC. 

The same haughtiness didn’t work for Senator Trillanes in his amnesty application. And he had otherwise competent evidence to back up his claim. MISLATEL, on the other hand, is not producing any evidence, competent or incompetent, to show that it did comply with the franchise conditions. 

The Senate is now reduced to using “in the interest of the public” justifications if it were to greenlight the award to MISLATEL. This even after expressing concern that they may thereby be creating a dangerous precedent for future non-conforming franchise applicants. 

Fight within a fight. At that Las Vegas extravaganza last week, Manny Pacquiao (MP) clearly outclassed Adrien Broner, both as a fighter and as a person. MP had poise and had grace. Broner, after losing spectacularly, proceeded to further default at any chance of redemption by refusing to accept the fairness of the verdict. Broner has no poise and no grace.

Poor fellow, after being utterly demolished by our Filipino hero, he had that one remaining opening to salvage what dignity he could. He may not have won, but he didn’t have to come out a loser. 

This was in stark contrast to our MP. He has always comported himself in a manner befitting a champ. He didn’t need the title of Senator to be the idol that he is for his exploits both in and out of the ring. Even on the House or Senate floor, though outmatched in the tale of the tape of academic qualification or political experience, MP never allowed himself to be anyone’s punchline. The same preparation and grim determination applied to his boxing matches is visibly devoted also to his public service. 

They say that MP has his eyes set on a prize larger than a last championship belt or a grudge match with Floyd. With the ethic and dedication he has displayed, you’ve got to like his chances to be a contender.

Passages. Our condolences to the family and to the Nation on the passing of a giant of generosity and altruism, Dr. Henry Sy.