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People vs. Optana
G.R. No. 133922.
February 12, 2001
Upon a sworn
complaint filed by Maria Rizalina
Onciano on November 28, 1995, four (4) Informations
for violation of Section 5 of Republic Act No. 7610, or known
as the Special Protection of Children Against
Child Abuse and four (4) Informations
for Rape were filed against herein accused-appellant Deolito
Optana.
Mindful of the well-settled
rule that findings of facts of the trial court are accorded
great respect considering that the trial judge has observed
the demeanor of the witnesses, the Court does not find any
cogent reason to depart from such rule. The trial judge had
these observations about the witness:
Rizalina was already 14 years old when she testified
in Court. At the time she testified she was succinct in her
declaration and appeared to the Court to be truthful. She
had no reason to fabricate a story against the accused who
supported her in her daily needs and spent for her education
until she finished Grade 6. Ingratitude is not a trait common
to a provincial child still innocent of the vicissitudes of
life.
A witness who testifies in a
categorical, straightforward, spontaneous and frank manner
and remains consistent is a credible witness. Since the trial
court found Maria Rizalinadepart from such s testimony to be credible and trustworthy,
it was more than sufficient to sustain the accused-appellant
depart from such s conviction. The fact that the accused-appellant
had carnal knowledge with the young victim is corroborated
by the findings of Dr. Laila Patricio,
who upon examination on November, 1995 found Maria Rizalina
to be 6-7 months pregnant already Maria Rizalina
confided to her that her stepfather raped her. This accusation
was repeated when she was investigated by SPO3 Cesar Antolin at the Subic Police Station,
Subic, Zambales, and
when she was interviewed by Social Welfare Officer II, Ana
Ecle of the DSWD, Iba,
Zambales.
When the accused-appellant was
courting Nida Onciano,
he was very aware that she had a daughter. Before they agreed
to live together, he was made to understand that he had to
accept and treat Maria Rizalina
as his own daughter, too-caring for her and providing for
her education. Since Maria Rizalina did not have a father, she regarded the accused-appellant
as such. Even at her young age, she recognized the parental
authority the accused-appellant had over her and in return,
she gave the reverence and respect due him as a father. Undeniably,
there was moral ascendancy on the part of the accused-appellant
over the victim.
In a rape committed by a father against the daughter, the former depart from such moral ascendancy and influence over
the latter substitutes for violence and intimidation.
Accused-appellant denies having
raped his stepdaughter alleging that it was quite impossible
for him to have committed the crime in broad daylight, in
a small house, abundant with open windows and doors, peopled
by six or seven mischievous and open-eyed curious souls keen
with every unusual scenarios of members involving kins and idols like their fathers.
The Court sees no impossibility
for the commission of this abominable act on the victim under
the alleged circumstances. Many cases attest to the unfortunate
fact that rape can be committed even in places where people
congregate: in parks, along the roadside, within school premises
and even inside a house where there are occupants. Lust is
no respecter of time or place.
Furthermore, accused-appellant
points to his sister-in-law, Evelyn Nallos
as the person who allegedly pressured his stepdaughter to
file the charges of rape against him considering an old grudge
existing between the two of them. It can be recalled that
Evelyn Nallos took care of two of their children who, unfortunately,
died under her care, one died of meningitis and pneumonia
and the other by drowning in a flood. To the defense, the
deaths were plainly due to Evelyn’s negligence. Since then,
their relationship was estranged.
This contention deserves scant
consideration. Ill motive is never an essential element of
a crime. It becomes inconsequential in a case where there
are affirmative, nay, categorical declarations towards the
accused-appellant’s accountability for the felony. Maria Rizalina’s
straightforward and consistent testimony belies any claim
of being pressured by her aunt to concoct a story of defloration
against the stepfather. Upon cross examination, she was quick
to deny that her Tita Evelyn prompted
her to report to the authorities about her physical condition
and the person responsible thereof.
To the accused-appellant, it
strains credulity why the victim never said anything about
the incidents until the discovery by the mother on November 24, 1994 when she revealed that it was her stepfather
who was responsible for her pregnancy.
Delay in reporting the crime
is understandable. It is not uncommon for young girls to conceal
for some time the assaults on their virtue because of the
rapist’s threat on their lives. The case at bar is no exception
to these well-founded rule. Maria Rizalina never said anything to her mother of the many times
the accused-appellant had sexually abused her for fear of
her life. She was definitely afraid of her stepfather who
threatened to kill her once she reports the matter to her
mother.
Neither was there any medical
impossibility to the commission of the crime as accused-appellant
argues:
Granting en gratia arguendo that accused-appellant
did the act complained of in September 1993, or the last act
on October 28, 1995, it is medically impossible and contrary to the natural laws
and religious belief. And, the medical books and hospital
records is in dearth or paucity of four (4) months premature
births.
x x x
xxx the turning point when the
pregnancy became apparent and noticeable was a clear span
or intereggnum (sic) of one (1) year and five (5) months from
the month and year subject matter of this review (November
24, 1995) which logically coincides with the months that complainant
gallivanted with the “barkada”,
but is off-tangent and is irreconcilable and medically and
naturally impossible with the alleged commission of rape of
September 1993.
This defense is unavailing.
Maria Rizalina
gave birth on February 23, 1996. She testified that she was raped several
times by her stepfather. While she could hardly remember the
exact dates of these instances, she only remembered the first
time she was raped which was in September, 1993 when she was
only 12 years old and was in Grade IV and the last time was
on October 28, 1995. Obviously, she could not have conceived
in September, 1993 because as she testified, she was not yet
menstruating at that time. She started to have her menstruation
when she was in Grade V or in 1994. She denies going home
late after school and is not fond of being out with friends.
Since she maintained that her stepfather raped her several
times, the child was definitely conceived as a result of the
rape between September, 1993 and October 28, 1995.
Given all these facts and circumstances,
we rule with moral certainty that the accused-appellant is
indeed guilty of the crimes.
Accused-appellant was charged
for violation of Section 5(b) of R.A. 7610 and Article 335
of the Revised Penal Code for rape which read as follows:
Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether
male or female, who for money, profit, or any other consideration
or due to the coercion or influence of any adult, syndicate
or group, indulge in sexual intercourse or lascivious conduct,
are deemed to be children exploited in prostitution and other
sexual abuse.
The penalty of reclusion temporal
in its medium period to reclusion perpetua
shall be imposed upon the following:
x x x
(b) Those who commit the act
of sexual intercourse or lascivious conduct with a child exploited
in prostitution or subjected to other sexual abuse:Provided,
that when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph
3, for rape and Article 336 of Act No. 3815, as amended,
the Revised Penal Code, for rape or lascivious conduct, as
the case may be: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12) years of age
shall be reclusion temporal in its medium period;
x x x
ART. 335 When and how rape is
committed. - Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived
of reason or otherwise unconscious; and
3. When the
woman is under twelve years of age, even though neither of
the circumstances mentioned in the two next preceding paragraphs
shall be present.
The crime of rape shall be punished
by reclusion perpetua.
x x x
Anent the numerous informations filed, the trial court corrected the erroneous
filing of these informations as
it explained:
It will be noted, however, that
for the same act committed on the same date by the accused
on the same offended party, the accused stands charged with
two offenses: for violation of Section 5, paragraph (b) of
Republic Act 7610 and for rape committed through force and
intimidation. Thus: (1) in Criminal Case Nos. 482-95 and 487-95,
the accused was charged with rape and violation of Section
5 paragraph (b) of Republic Act 7610, respectively, committed
on the same date, October 1995, when the victim was 13 years
old and 9 months; (2) in Criminal Case Nos. 484-95 and 488-95,
the Informations charged rape and violation of the same special
law, respectively, committed on the same date, September 1995,
when the victim was 13 years and 9 months old; (3) in Criminal
Case Nos. 483-95 and 489-95, the accused was charged with
rape and violation of the same special law, respectively,
committed in October 1995 when the child was 11 years and
10 months old; and (4) in Criminal Case Nos. 485-95 and 486-95,
the accused was charged with rape and violation of the same
special law, respectively, committed in September 1993 when
the victim was 11 years and 9 months old.
Charging the accused with two
different offenses for the same act committed on the same
date against the said victim is erroneous as it is illegal,
except where the law itself so allows. Section 5 (b) Republic
Act 7610, however, does not so allow. The said law in fact
provides that if the child is below 12 years old, the accused
must be prosecuted under Article 335 of the Revised Penal
Code. Conversely, if the child is above 12 years old but below
18 years old, then the accused must be prosecuted under Republic
Act 7610 for the so called child abuse.
The trial court correctly convicted
the accused for Rape under Article 335 of the RPC in Criminal
Case No. 485-95 for it was clearly proven that the accused
had carnal knowledge with the victim through force and intimidation
on that fateful day in September, 1993. This was the first
time the accused raped Maria Rizalina
who was able to give a detailed account of this traumatic
experience. She was below 12 years old at that time. While
Maria Rizalina also testified that
she was raped several times after September, 1993, the prosecution,
however, failed to establish the material details as to the
time, place, and manner by which these offenses were committed.
There is still a need for proof beyond reasonable doubt that
the offenses alleged in the informations
were indeed committed Thus, the trial court acquitted the
accused under Criminal Case Nos. 482-95, 483-95, 484-95, 486-95,
488-95, 489-95 for want of sufficient evidence.
Aside from the first incident
of rape, all what Maria Rizalina
could say was that she was molested by the accused for the
last time on October 28, 1995. Whether there was force and
intimidation to qualify this incident as rape was, unfortunately,
not proven. Nonetheless, there is no dispute that Maria Rizalina was sexually abused by the accused on this occasion.
Hence, the trial court convicted the accused under Criminal
Case No. 487-95 for violation of Sec. 5(b) of R.A. 7610 or the Child Abuse Law.
In the case of People v.
Larin, the Court has explained that the elements of the
offense penalized under this provision are as follows;
1. The accused commits the act
of sexual intercourse or lascivious conduct.
2. The said act is performed
with a child exploited in prostitution or subjected to other
sexual abuse.
3. The child, whether male or
female, is below 18 years of age.
A child is deemed exploited
in prostitution or subjected to other sexual abuse, when the
child indulges in sexual intercourse or lascivious conduct
(a) for money, profit, or any other consideration; or (b)
under the coercion or influence of any adult, syndicate or
group. Under RA 7610, children are "persons below eighteen
years of age or those unable to fully take care of themselves
or protect themselves from abuse, neglect, cruelty, exploitation
or discrimination because of their age or mental disability
or condition."
It must be noted that the law
covers not only a situation in which a child is abused for
profit, but also one in which a child, through coercion or
intimidation, engages in any lascivious conduct. Hence, the
foregoing provision penalizes not only child prostitution,
the essence of which is profit, but also other forms of sexual
abuse of children. This is clear from the deliberations of
the Senate.
From the above disquisition,
the accused is certainly guilty for sexual abuse committed
on his stepdaughter, using his moral ascendancy in intimidating
the victim to engage in sexual intercourse with him.
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Republic Act No.
7610
Special Protection of Children Against Abuse,
Exploitation and Discrimination Act
(Promulgated June 17, 1992)
Note: Please see Republic
Act 9231 which amended certain provisions of RA 7610.
ARTICLE I
Title, Policy, Principles and Definitions of Terms
Section 1. Title. - This Act shall be known as the "Special
Protection of Children Against Abuse, Exploitation
and Discrimination Act."
Sec.
2. Declaration of State Policy and Principles. - It is hereby declared to be the policy of
the State to provide special protection to children from all forms
of abuse, neglect, cruelty exploitation and discrimination and other
conditions, prejudicial their development; provide sanctions for
their commission and carry out a program for prevention and deterrence
of and crisis intervention in situations of child abuse, exploitation
and discrimination. The State shall intervene on behalf of the child
when the parent, guardian, teacher or person having care or custody
of the child fails or is unable to protect the child against abuse,
exploitation and discrimination or when such acts against the child
are committed by the said parent, guardian, teacher or person
having care and custody of the same.
It shall be the policy of the State
to protect and rehabilitate children gravely threatened or endangered
by circumstances which affect or will affect their survival and
normal development and over which they have no control.
The best interests of children
shall be the paramount consideration in all actions concerning them,
whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities, and legislative bodies,
consistent with the principle of First Call for Children as enunciated
in the United Nations Convention of the Rights of the Child. Every
effort shall be exerted to promote the welfare of children and enhance
their opportunities for a useful and happy life.
Sec. 3. Definition of Terms. -
(a) "Children" refers
to person below eighteen (18) years of age or those over but are
unable to fully take care of themselves or protect themselves
from abuse, neglect, cruelty, exploitation or discrimination because
of a physical or mental disability or condition;
(b) "Child abuse" refers
to the maltreatment, whether habitual or not, of the child which
includes any of the following:
(1) Psychological and physical
abuse, neglect, cruelty, sexual abuse and emotional maltreatment;
(2) Any act by deeds or words
which debases, degrades or demeans the intrinsic worth and dignity
of a child as a human being;
(3) Unreasonable deprivation
of his basic needs for survival, such as food and shelter; or
(4) Failure to immediately
give medical treatment to an injured child resulting in serious
impairment of his growth and development or in his permanent
incapacity or death.
(c) "Circumstances which
gravely threaten or endanger the survival and normal development
of children" include, but are not limited to, the following:
(1) Being in a community where
there is armed conflict or being affected by armed conflict-related
activities;
(2) Working under conditions
hazardous to life, safety and normal which unduly interfere
with their normal development;
(3) Living in or fending for
themselves in the streets of urban or rural areas without the
care of parents or a guardian or basic services needed for a
good quality of life;
(4) Being a member of an indigenous cultural community and/or living under conditions
of extreme poverty or in an area which is underdeveloped and/or
lacks or has inadequate access to basic services needed for
a good quality of life;
(5) Being a victim of a man-made
or natural disaster or calamity; or
(6) Circumstances analogous
to those above-stated which endanger the life, safety or normal
development of children.
(d) "Comprehensive program
against child abuse, exploitation and discrimination" refers
to the coordinated program of services and facilities to protected
children against:
(1) Child Prostitution and
other sexual abuse;
(2) Child trafficking;
(3) Obscene publications and
indecent shows;
(4) Other acts of abuses; and
(5) Circumstances which threaten
or endanger the survival and normal development of children.
ARTICLE II.
Program on Child Abuse, Exploitation and Discrimination
Sec. 4. Formulation of the Program. - There shall be
a comprehensive program to be formulated, by the Department of Justice
and the Department of Social Welfare and Development in coordination
with other government agencies and private sector concerned, within
one (1) year from the effectivity of this Act, to protect children against child
prostitution and other sexual abuse; child trafficking, obscene
publications and indecent shows; other acts of abuse; and circumstances
which endanger child survival and normal development.
ARTICLE III.
Child Prostitution and Other Sexual Abuse
Sec. 5. Child Prostitution and Other Sexual Abuse. -
Children, whether male or female, who for money, profit, or any
other consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children
exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal
in its medium period to reclusion perpetua
shall be imposed upon the following:
(a) Those who
engage in or promote, facilitate or induce child prostitution
which include, but are not limited to, the following:
(1) Acting as a procurer of
a child prostitute;
(2) Inducing a person to be
a client of a child prostitute by means of written or oral advertisements
or other similar means;
(3) Taking advantage of influence
or relationship to procure a child as prostitute;
(4) Threatening
or using violence towards a child to engage him as a prostitute;
or
(5) Giving monetary consideration
goods or other pecuniary benefit to a child with intent to engage
such child in prostitution.
(b) Those who commit the act
of sexual intercourse of lascivious conduct with a child exploited
in prostitution or subject to other sexual abuse; Provided, That
when the victims is under twelve (12) years of age, the perpetrators
shall be prosecuted under Article 335, paragraph 3, for rape and
Article 336 of Act No. 3815, as amended, the Revised Penal Code,
for rape or lascivious conduct, as the case may be: Provided,
That the penalty for lascivious conduct when the victim is under
twelve (12) years of age shall be reclusion temporal in its medium
period; and
(c) Those who
derive profit or advantage therefrom, whether as manager or owner
of the establishment where the prostitution takes place, or of
the sauna, disco, bar, resort, place of entertainment or establishment
serving as a cover or which engages in prostitution in addition
to the activity for which the license has been issued to said
establishment.
Sec. 6. Attempt To Commit Child Prostitution. - There is an attempt to commit
child prostitution under Section 5, paragraph (a) hereof when any
person who, not being a relative of a child, is found alone with
the said child inside the room or cubicle of a house, an inn, hotel,
motel, pension house, apartelle or other similar establishments, vessel, vehicle
or any other hidden or secluded area under circumstances which would
lead a reasonable person to believe that the child is about to be
exploited in prostitution and other sexual abuse.
There is also an attempt to commit
child prostitution, under paragraph (b) of Section 5 hereof when
any person is receiving services from a child in a sauna parlor
or bath, massage clinic, health club and other similar establishments.
A penalty lower by two (2) degrees than that prescribed for the
consummated felony under Section 5 hereof shall be imposed upon
the principals of the attempt to commit the crime of child prostitution
under this Act, or, in the proper case, under the Revised Penal
Code.
Back to top
ARTICLE IV.
Child Trafficking
Sec. 7. Child Trafficking. - Any person who shall engage
in trading and dealing with children including, but not limited
to, the act of buying and selling of a child for money, or for any
other consideration, or barter, shall suffer the penalty of reclusion
temporal to reclusion perpetua. The penalty shall be imposed in its maximum period
when the victim is under twelve (12) years of age.
Sec. 8. Attempt to Commit Child Trafficking. - There is an attempt to commit child
trafficking under Section 7 of this Act:
(a) When a child travels alone
to a foreign country without valid reason therefor
and without clearance issued by the Department of Social Welfare
and Development or written permit or justification from the child's
parents or legal guardian;
(b) When a pregnant mother executes an affidavit of consent for
adoption for a consideration
(c) When a person, agency, establishment
or child-caring institution recruits women or couples to bear
children for the purpose of child trafficking; or
(d) When a doctor, hospital or
clinic official or employee, nurse, midwife, local civil registrar
or any other person simulates birth for the purpose of child trafficking;
or
(e) When a person engages in
the act of finding children among low-income families, hospitals,
clinics, nurseries, day-care centers, or other child-during institutions
who can be offered for the purpose of child trafficking.
A penalty lower two (2) degrees
than that prescribed for the consummated felony under Section 7
hereof shall be imposed upon the principals of the attempt to commit
child trafficking under this Act.
ARTICLE V. Obscene Publications and Indecent Shows
Sec. 9. Obscene Publications and Indecent Shows. - Any
person who shall hire, employ, use, persuade, induce or coerce a
child to perform in obscene exhibitions and indecent shows, whether
live or in video, or model in obscene publications or pornographic
materials or to sell or distribute the said materials shall suffer
the penalty of prision mayor in its medium period.
If the child used as a performer,
subject or seller/distributor is below twelve (12) years of age,
the penalty shall be imposed in its maximum period.
Any ascendant, guardian, or person
entrusted in any capacity with the care of a child who shall cause
and/or allow such child to be employed or to participate in an obscene
play, scene, act, movie or show or in any other acts covered by
this section shall suffer the penalty of prision mayor in its medium
period.
ARTICLE VI.
Other Acts of Abuse
Sec. 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation
and Other Conditions Prejudicial to the Child's Development.
-
(a) Any person who shall commit
any other acts of child abuse, cruelty or exploitation or be responsible
for other conditions prejudicial to the child's development including
those covered by Article
59 of Presidential Decree No. 603, as amended, but not covered
by the Revised Penal Code, as amended, shall suffer the penalty
of prision mayor in its minimum period.
(b) Any person who shall keep
or have in his company a minor, twelve (12) years or under or
who in ten (10) years or more his junior in any public or private
place, hotel, motel, beer joint, discotheque, cabaret, pension
house, sauna or massage parlor, beach and/or other tourist resort
or similar places shall suffer the penalty of prision mayor in
its maximum period and a fine of not less than Fifty thousand
pesos (P50,000.00): Provided, That this provision shall not apply
to any person who is related within the fourth degree of consanguinity
or affinity or any bond recognized by law, local custom and tradition
or acts in the performance of a social, moral or legal duty.
(c) Any person who shall induce,
deliver or offer a minor to any one prohibited by this Act to
keep or have in his company a minor as provided in the preceding
paragraph shall suffer the penalty of prision mayor in its medium
period and a fine of not less than Forty thousand pesos (P40,000.00);
Provided, however, That should the perpetrator be an ascendant,
stepparent or guardian of the minor, the penalty to be imposed
shall be prision mayor in its maximum period, a fine of not less
than Fifty thousand pesos (P50,000.00), and the loss of parental
authority over the minor.
(d) Any person, owner, manager
or one entrusted with the operation of any public or private place
of accommodation, whether for occupancy, food, drink or otherwise,
including residential places, who allows any person to take along
with him to such place or places any minor herein described shall
be imposed a penalty of prision mayor in its medium period and
a fine of not less than Fifty thousand pesos (P50,000.00), and the loss of the license to operate such a place
or establishment.
(e) Any person
who shall use, coerce, force or intimidate a street child or any
other child to:
(1) Beg or use begging as a
means of living;
(2) Act as conduit or middlemen
in drug trafficking or pushing; or
(3) Conduct any illegal activities,
shall suffer the penalty of prision correccional in its medium
period to reclusion perpetua.
For purposes of this Act, the penalty
for the commission of acts punishable under Articles 248, 249, 262,
paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, the
Revised Penal Code, for the crimes of murder, homicide, other intentional
mutilation, and serious physical injuries, respectively, shall be
reclusion perpetua when the victim is under twelve (12) years of age.
The penalty for the commission of acts punishable under Articles
337, 339, 340 and 341 of Act No. 3815, as amended, the Revised Penal
Code, for the crimes of qualified seduction, acts of lasciviousness
with the consent of the offended party, corruption of minors, and
white slave trade, respectively, shall be one (1) degree higher
than that imposed by law when the victim is under twelve (12) years
age.
The victim of the acts committed
under this section shall be entrusted to the care of the Department
of Social Welfare and Development.
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ARTICLE VII.
Sanctions for Establishments or Enterprises
Sec. 11. Sanctions of Establishments or Enterprises which Promote,
Facilitate, or Conduct Activities Constituting Child Prostitution
and Other Sexual Abuse, Child Trafficking, Obscene Publications
and Indecent Shows, and Other Acts of Abuse. - All establishments
and enterprises which promote or facilitate child prostitution and
other sexual abuse, child trafficking, obscene publications and
indecent shows, and other acts of abuse shall be immediately closed
and their authority or license to operate cancelled, without prejudice
to the owner or manager thereof being prosecuted under this Act
and/or the Revised Penal Code, as amended, or special laws. A sign
with the words "off limits" shall be conspicuously displayed
outside the establishments or enterprises by the Department of Social
Welfare and Development for such period which shall not be less
than one (1) year, as the Department may determine. The unauthorized
removal of such sign shall be punishable by prision correccional.
An establishment shall be deemed
to promote or facilitate child prostitution and other sexual abuse,
child trafficking, obscene publications and indecent shows, and
other acts of abuse if the acts constituting the same occur in the
premises of said establishment under this Act or in violation of
the Revised Penal Code, as amended. An enterprise such as a sauna,
travel agency, or recruitment agency which; promotes the aforementioned
acts as part of a tour for foreign tourists; exhibits children in
a lewd or indecent show; provides child masseurs for adults of the
same or opposite sex and said services include any lascivious conduct
with the customers; or solicits children or activities constituting
the aforementioned acts shall be deemed to have committed the acts
penalized herein.
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ARTICLE VIII.
Working Children
Sec. 12. Employment of Children. - Children below fifteen
(15) years of age may be employed except:
(1) When a child works directly
under the sole responsibility of his parents or legal guardian
and where only members of the employer's family are employed:
Provided, however, That his employment neither endangers his life,
safety and health and morals, nor impairs his normal development:
Provided, further, That the parent or legal guardian shall provide
the said minor child with the prescribed primary and/or secondary
education; or
(2) When a child's employment
or participation in public & entertainment or information
through cinema, theater, radio or television is essential: Provided,
The employment contract concluded by the child's parent or guardian,
with the express agreement of the child concerned, if possible,
and the approval of the Department of Labor and Employment: Provided,
That the following requirements in all instances are strictly
complied with:
(a) The employer shall ensure
the protection, health, safety and morals of the child;
(b) the employer shall institute
measures to prevent the child's exploitation or discrimination
taking into account the system and level of remuneration, and
the duration and arrangement of working time; and
(c) The employer shall formulate
and implement, subject to the approval and supervision of competent
authorities, a continuing program for training and skill acquisition
of the child.
In the above exceptional cases
where any such child may be employed, the employer shall first secure,
before engaging such child, a work permit from the Department of
Labor and Employment which shall ensure observance of the above
requirement.
The Department of Labor and Employment
shall promulgate rules and regulations necessary for the effective
implementation of this Section.
Sec.
13. Non-formal Education for Working Children. - The Department of Education, Culture and Sports shall promulgate a course
design under its non-formal education program aimed at promoting
the intellectual, moral and vocational efficiency of working children
who have not undergone or finished elementary or secondary education.
Such course design shall integrate the learning process deemed most
effective under given circumstances.
Sec.
14. Prohibition on the Employment of Children in Certain
Advertisements. - No person shall employ child models in all commercials or advertisements
promoting alcoholic beverages, intoxicating drinks, tobacco and
its byproducts and violence.
Sec. 15. Duty of Employer. - Every employer shall comply
with the duties provided for in Articles
108 and 109 of Presidential Decree No. 603.
Sec.
16. Penalties. - Any person who shall violate any provision of this Article shall suffer
the penalty of a fine of not less than One thousand pesos (P1,000)
but not more than Ten thousand pesos (P10,000) or imprisonment of
not less than three (3) months but not more than three (3) years,
or both at the discretion of the court: Provided, That, in case
of repeated violations of the provisions of this Article, the offender's
license to operate shall be revoked.
ARTICLE IX.
Children of Indigenous Cultural Communities
Sec. 17. Survival, Protection and Development. - In addition
to the rights guaranteed to children under this Act and other existing
laws, children of indigenous cultural communities shall be entitled
to protection, survival and development consistent with the customs
and traditions of their respective communities.
Sec. 18. System of and Access to Education. - The Department
of Education, Culture and Sports shall develop and institute an
alternative system of education for children of indigenous cultural
communities which culture-specific and relevant to the needs of
and the existing situation in their communities. The Department
of Education, Culture and Sports shall also accredit and support
non-formal but functional indigenous educational programs conducted
by non-government organizations in said communities.
Sec. 19. Health and Nutrition. - The delivery of basic
social services in health and nutrition to children of indigenous
cultural communities shall be given priority by all government agencies
concerned. Hospitals and other health institution shall ensure that
children of indigenous cultural communities are given equal attention.
In the provision of health and nutrition services to children of
indigenous cultural communities, indigenous health practices shall
be respected and recognized.
Sec. 20. Discrimination. - Children of indigenous cultural
communities shall not be subjected to any and all forms of discrimination.
Any person who discriminates against
children of indigenous cultural communities shall suffer a penalty
of arresto mayor in its maximum period and a fine of not less than
Five thousand pesos (P5,000.00) more than
Ten thousand pesos (P10,000.00).
Sec. 21. Participation. - Indigenous cultural communities,
through their duly-designated or appointed representatives shall
be involved in planning, decision-making implementation, and evaluation
of all government programs affecting children of indigenous cultural
communities. Indigenous institution shall also be recognized and
respected.
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ARTICLE X. Children in Situations of Armed Conflict
Sec. 22. Children as Zones of Peace. - Children are hereby
declared as Zones of Peace. It shall be the responsibility of the
State and all other sectors concerned to resolve armed conflicts
in order to promote the goal of children as zones of peace. To attain
this objective, the following policies shall be observed.
(a) Children shall not be the
object of attack and shall be entitled to special respect. They
shall be protected from any form of threat, assault, torture or
other cruel, inhumane or degrading treatment;
(b) Children shall not be recruited
to become members of the Armed Forces of the Philippines of its
civilian units or other armed groups, nor be allowed to take part
in the fighting, or used as guides, couriers, or spies;
(c) Delivery of basic social
services such as education, primary health and emergency relief
services shall be kept unhampered;
(d) The safety and protection
of those who provide services including those involved in fact-finding
missions from both government and non-government institutions
shall be ensured. They shall not be subjected to undue harassment
in the performance of their work;
(e) Public infrastructure such
as schools, hospitals and rural health units shall not be utilized
for military purposes such as command posts, barracks, detachments,
and supply depots; and
(f) All appropriate steps shall
be taken to facilitate the reunion of families temporarily separated
due to armed conflict.
Sec. 23. Evacuation of Children During Armed Conflict.
- Children shall be given priority during evacuation as a result
of armed conflict. Existing community organizations shall be tapped
to look after the safety and well-being of children during evacuation
operations. Measures shall be taken to ensure that children evacuated
are accompanied by persons responsible for their safety and well-being.
Sec. 24. Family Life and Temporary Shelter. - Whenever
possible, members of the same family shall be housed in the same
premises and given separate accommodation from other evacuees and
provided with facilities to lead a normal family life. In places
of temporary shelter, expectant and nursing mothers and children
shall be given additional food in proportion to their physiological
needs. Whenever feasible, children shall be given opportunities
for physical exercise, sports and outdoor games.
Sec. 25. Rights of Children Arrested for Reasons Related to Armed Conflict. - Any
child who has been arrested for reasons related to armed conflict,
either as combatant, courier, guide or spy is entitled to the following
rights;
(a) Separate detention from adults
except where families are accommodated as family units;
(b) Immediate free legal assistance;
(c) Immediate notice of such
arrest to the parents or guardians of the child; and
(d) Release of the child on recognizance
within twenty-four (24) hours to the custody of the Department
of Social Welfare and Development or any responsible member of
the community as determined by the court.
If after hearing the evidence in
the proper proceedings the court should find that the aforesaid
child committed the acts charged against him, the court shall determine
the imposable penalty, including any civil liability chargeable
against him. However, instead of pronouncing judgment of conviction,
the court shall suspend all further proceedings and shall commit
such child to the custody or care of the Department of Social Welfare
and Development or to any training institution operated by the Government,
or duly-licensed agencies or any other responsible person, until
he has had reached eighteen (18) years of age or, for a shorter
period as the court may deem proper, after considering the reports
and recommendations of the Department of Social Welfare and Development
or the agency or responsible individual under whose care he has
been committed.
The aforesaid child shall subject to visitation and supervision by a representative of
the Department of Social Welfare and Development or any duly-licensed
agency or such other officer as the court may designate subject
to such conditions as it may prescribe.
The aforesaid child whose sentence
is suspended can appeal from the order of the court in the same
manner as appeals in criminal cases.
Sec. 26. Monitoring and Reporting of Children in Situations of Armed Conflict.
- The chairman of the barangay affected by the armed conflict shall
submit the names of children residing in said barangay to the municipal
social welfare and development officer within twenty-four (24) hours
from the occurrence of the armed conflict.
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ARTICLE XI.
Remedial Procedures
Sec.
27. Who May File a Complaint. - Complaints on cases of unlawful acts committed against the children
as enumerated herein may be filed by the following:
(a) Offended party;
(b) Parents or guardians;
(c) Ascendant or collateral relative
within the third degree of consanguinity;
(d) Officer, social worker or
representative of a licensed child-caring institution;
(e) Officer or social worker
of the Department of Social Welfare and Development;
(f) Barangay chairman; or
(g) At least three (3) concerned
responsible citizens where the violation occurred.
Sec. 28. Protective Custody of the Child. - The offended
party shall be immediately placed under the protective custody of
the Department of Social Welfare and Development pursuant to Executive
Order No. 56, series of 1986. In the regular performance of this
function, the officer of the Department of Social Welfare and Development
shall be free from any administrative, civil or criminal liability.
Custody proceedings shall be in accordance with the provisions of
Presidential Decree No. 603.
Sec. 29. Confidentiality. - At the instance of the offended
party, his name may be withheld from the public until the court
acquires jurisdiction over the case.
It shall be unlawful for any editor,
publisher, and reporter or columnist in case of printed materials,
announcer or producer in case of television and radio broadcasting,
producer and director of the film in case of the movie industry,
to cause undue and sensationalized publicity of any case of violation
of this Act which results in the moral degradation and suffering
of the offended party.
Sec. 30. Special Court Proceedings. - Cases involving
violations of this Act shall be heard in the chambers of the judge
of the Regional
Trial Court duly designated as Juvenile and Domestic Court.
Any provision of existing law to
the contrary notwithstanding and with the exception of habeas corpus,
election cases, and cases involving detention prisoners and persons
covered by Republic Act No. 4908, all courts shall give preference
to the hearing or disposition of cases involving violations of this
Act.
ARTICLE XII.
Common Penal Provisions
Sec. 31. Common Penal Provisions. -
(a) The penalty provided under
this Act shall be imposed in its maximum period if the offender
has been previously convicted under this Act;
(b) When the offender is a corporation,
partnership or association, the officer or employee thereof who
is responsible for the violation of this Act shall suffer the
penalty imposed in its maximum period;
(c) The penalty provided herein
shall be imposed in its maximum period when the perpetrator is
an ascendant, parent guardian, stepparent or collateral relative
within the second degree of consanguinity or affinity, or a manager
or owner of an establishment which has no license to operate or
its license has expired or has been revoked;
(d) When the offender is a foreigner,
he shall be deported immediately after service of sentence and
forever barred from entry to the country;
(e) The penalty provided for
in this Act shall be imposed in its maximum period if the offender
is a public officer or employee: Provided, however, That if the
penalty imposed is reclusion perpetua
or reclusion temporal, then the penalty of perpetual or temporary
absolute disqualification shall also be imposed: Provided, finally,
That if the penalty imposed is prision correccional or arresto
mayor, the penalty of suspension shall also be imposed; and
(f) A fine to be determined by
the court shall be imposed and administered as a cash fund by
the Department of Social Welfare and Development and disbursed
for the rehabilitation of each child victim, or any immediate
member of his family if the latter is the perpetrator of the offense.
ARTICLE XIII.
Final Provisions
Sec. 32. Rules and Regulations. - Unless otherwise provided
in this Act, the Department of Justice, in coordination with the
Department of Social Welfare and Development, shall promulgate rules
and regulations of the effective implementation of this Act.
Such rules and regulations shall
take effect upon their publication in two (2) national newspapers
of general circulation.
Sec. 33. Appropriations. - The amount necessary to carry
out the provisions of this Act is hereby authorized to be appropriated
in the General Appropriations Act of the year following its enactment
into law and thereafter.
Sec. 34. Separability Clause. - If any provision of this Act is declared invalid
or unconstitutional, the remaining provisions not affected thereby
shall continue in full force and effect.
Sec. 35. Repealing Clause. - All laws, decrees, or rules
inconsistent with the provisions of this Acts are hereby repealed
or modified accordingly.
Sec. 36. Effectivity Clause. - This Act shall take effect upon completion of its
publication in at least two (2) national newspapers of general circulation.
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