What is discernment to our lawmakers?

I had to retrieve from my library my oldest book on Criminal Law if only to be able to react to this paper’s editorial last Tuesday. It was Sen Vicente Francisco’s work, the Revised Penal Code, a 1958 edition, which I got hold of. This is a very well preserved 67-year-old book and its introductory page it said that this work is a Francisco revision of his former book. It does not state however when was the earlier book published. By the way, the Revised Penal Code, identified as Act No. 3815, took effect on January 1, 1932.

I opened right away to an article in the Revised Penal Code in this Francisco book which reads: The following are exempt from criminal liability: (1) An imbecile or an insane person xxx. (2) A person under nine years of age. According to Francisco, “a child under the age of nine is conclusively presumed incapable of entertaining criminal intent and cannot commit a crime. A child over nine years of age and under fifteen is presumed to be incapable but the presumption may be rebutted by proof that he acted with discernment. At the age of fifteen, he is presumed to have sufficient capacity and must affirmatively show the contrary.”

I had to get that old Francisco book because 42 years later, President Ferdinand E. Marcos, (may his soul rest in peace) wrote into the Philippine statute books the concept of youthful offender thru Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code which took effect on December 10, 1974. Marcos himself amended this concept about two years later with Presidential Decree 1179, Aug. 15, 1977. He redefined youthful offender “as a child, minor or youth, including one who is emancipated in accordance with law, who is over nine years but under eighteen years of age (21 years in PD 603) at the time of the commission of the offense. Under this new law, “A child nine years of age or under at the time of the offense shall be exempt from criminal liability” as it was in the Revised Penal Code s although with the modification that such youthful offender “shall 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. The same shall be done for a child over nine years and under fifteen years of age at the time of the commission of the offense, unless he acted with discernment xxx.”

Then 72 years after the Revised Penal Code took effect, came Republic Act No. 9344 otherwise known as the Juvenile Justice and Welfare Act of 2006, signed into law by President Gloria Macapagal Arroyo on April 28, 2006 and amended in 2013. This is often referred to as the Sen. Kiko Pangilinan law. RA 9344 prescribes the minimum age of criminal responsibility thus: “A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability.”

To be sure, RA 9344 generated a lot of serious controversy, one which I am not prepared to join. In fact, in 2018, former President Rodrigo Duterte Duterte blamed the Pangilinan law for rising crimes. Recently, Sen Robin Padilla filed a bill to amend the age aspect of criminal liability. I believe that the center of the issue is discernment. It is not difficult to understand that “discernment describes a wise way of judging between things, or a particularly perceptive way of seeing things. What was discernment for a person between 9-15 years in 1932 (or 15-18 in the Pangilinan law) compared to a 9-15 years old person in 2025 (or 15-18 in the Pangilinan law)? 1932 and 2025 are just 7 years short of a century! That must be the focus of the legislative action.