Section 6 of Republic Act No. 9344 or the Juvenile Justice and Welfare Act of 2006 states that: A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to the appropriate proceedings in accordance with this Act. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act.
Under paragraph 2 of RA 9344, a child above fifteen (15) years but below eighteen (18) years is also exempt from criminal liability unless he/she has acted with discernment. But what is discernment and how is it determined?
To begin with, Discernment is defined as the capacity of the child at the time of the commission of the offense to understand the difference between right and wrong and the consequences of the wrongful act.[1]
The Supreme Court, in the case of CICL XXX vs People of the Philippines[2], lengthily discussed the jurisprudential pronouncements and development throughout the years as to how discernment can be determined, to wit:
Among the earliest discussions on discernment is the 1917 case of US v. Maralit. The Court stated that in establishing discernment, it must appear from the evidence that the accused acted with knowledge of the nature of his acts and of the results which would naturally follow therefrom. To establish the fact that a person acted with discernment, it is not necessary that some witness declare directly and in words that he acted with discernment. It is sufficient that, from the evidence as a whole, it is a necessary inference that he so acted. The trial court may take into consideration all the facts and circumstances presented by the record, together with the appearance of the accused as he stood and testified during trial.
In the 1939 case of People v. Doqueña (Doqueña), the Court restated that discernment was the mental capacity to understand the difference between right and wrong. Discernment should be determined by taking into consideration all the facts and circumstances accorded by the records in each case, the very appearance, the very attitude, the very comportment and behavior of said minor, not only before and during the commission of the act, but also after and even during the trial.
In Guevarra v. Hon. Almodovar (Guevarra), the Court had the opportunity to distinguish discernment from criminal intent. A crime, whether committed by dolo or culpa, requires the distinct element of intelligence. This intelligence necessarily includes the concept of discernment: [T]he terms “intent” and “discernment” convey two distinct thoughts. While both are products of the mental processes within a person, the former refers to the desire of one’s act while the latter relate to the moral significance that person ascribes to the said act. xxx In further outlining the distinction between the words “intent” and “discernment,” it is worthy to note the basic reason behind the enactment of the exempting circumstances embodied in Article 12 of the RPC; the complete absence of intelligence freedom of action, or intent, or on the absence of negligence on the part of the accused.
In Remiendo v. People, the Court reiterated Doqueña and Guevarra emphasizing that the prosecution is burdened to prove that the accused acted with discernment and that the surrounding circumstances must demonstrate that the minor knew what he was doing and that it was wrong. Such circumstance includes the gruesome nature of the crime and the minor’s cunning and shrewdness.
The Court in Dorado v. People (Dorado) further elucidated that when a minor above fifteen (15) years old but below eighteen (18) years old is charged with a crime, it cannot be presumed that he or she acted with discernment. During the trial, the prosecution must specifically prove as a separate circumstance that the child in conflict with the law committed the alleged crime with discernment. Notably, Dorado also specified circumstances which would exhibit discernment, viz.:
“The discernment that constitutes an exception to the exemption from criminal liability of a minor [. . .] who commits an act prohibited by law, is his mental capacity to understand the difference between right and wrong, and such capacity may be known and should be determined by taking into consideration all the facts and circumstances accorded by the records in each case, the very appearance, the very attitude, the very comportment and behavior of said minor, not only before and during the commission of the act, but also after and even during the trial.”
“The basic reason behind the exempting circumstance is complete absence of intelligence, freedom of action of the offender which is an essential element of a felony either by dolus or by culpa. Intelligence is the power necessary to determine the morality of human acts to distinguish a licit from an illicit act. On the other hand, discernment is the mental capacity to understand the difference between right and wrong.” As earlier stated, the “prosecution is burdened to prove that the accused acted with discernment by evidence of physical appearance, attitude or deportment not only before and during the commission of the act, but also after and during the trial. The surrounding circumstances must demonstrate that the minor knew what he was doing and that it was wrong. Such circumstance includes the gruesome nature of the crime and the minor’s cunning and shrewdness.” In an earlier case, it was written:
For a minor at such an age to be criminally liable, the prosecution is burdened to prove beyond reasonable doubt, by direct or circumstantial evidence, that he acted with discernment, meaning that he knew what he was doing and that it was wrong. Such circumstantial evidence may include the utterances of the minor; his overt acts before, during and after the commission of the crime relative thereto; the nature of the weapon used in the commission of the crime; his attempt to silence a witness; his disposal of evidence or his hiding the corpus delicti.
On the basis of the foregoing, this Court consistently held for more than a hundred years that in determining discernment, courts shall consider the totality of facts and circumstances in each case. Further, discernment may be established by either direct or circumstantial evidence. These circumstances include, but are not limited to: (i) the very appearance, the very attitude, the very comportment and behavior of said minor, not only before and during the commission of the act, but also after and even during trial, (ii) the gruesome nature of the crime, (iii) the minor’s cunning and shrewdness, (iv) the utterances of the minor, (v) his overt acts before, during and after the commission of the crime, (vi) the nature of the weapon used, (vii) his attempt to silence a witness, and (viii) his disposal of evidence or his hiding the corpus delicti.
[1] G.R. No. 238798, March 14, 2023
[2] G.R. No. 238798, March 14, 2023