STA.

MARIA PERSONS AND FAMILY RELATIONS

MOOT COURT

THE ANTI-CORPORAL PUNISHMENT ACT OF 2013 IS

NECESSARY IN LIGHT OF THE
EXISITING PROVISIONS OF THE FAMILY CODE
REGARDING PARENTAL AUTHORITY

MEMORIAL FOR THE RESPONDENT

TEAM NUMBER: 1-B

ATENEO DE MANILA UNIVERSITY

SCHOOL OF LAW
August 2013

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1-B | Memorial for Respondent | 1

TABLE OF CONTENTS

TABLE OF CONTENTS..2
INDEX OF AUTHORITIES.4
SUMMARY OF PLEADING.6
PLEADINGS AND AUTHORITIES.8
I. CHILDREN ARE AFFORDED RIGHTS TO PROTECTION UNDER
PHILIPPINE LAWS..8
A. Corporal Punishment is incompatible with the legally established safeguards
protecting children ........................................................10
II FAMILY CODE PROVISIONS ON PARENTAL AUTHORITY ARE NOT
SUFFICIENT

AS

PREVENTIVE

MEASURES

AGAINST

CORPORAL

PUNISHMENT...13
A.

The

Family

Code

Provisions

implicitly

allows

Corporal

Punishment13
B. There is a lack of standards that limits the exercise of parental right to
discipline children..14
C. Even assuming that the State can limit instances of corporal punishment under
the Family Code provisions, prohibition of corporal punishment alone is
incomplete15
III. PENAL AND SPECIAL LAWS SUPPOSEDLY FILLING IN THE GAPS OF
THE FAMILY CODE PROVISIONS BY IMPLICITLY OR EXPLICITLY

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PROHIBITING

CORPORAL

PUNISHMENT

ARE

NOT

ADEQUATE.16
A. Special Laws prohibiting abuse and violence do not necessarily prohibit
corporal punishment.16
B. Penal laws implicitly prohibiting corporal punishment allow offenders to
invoke good faith as a
defense....17
C. Senate Bill 227 provides for a more comprehensive approach in prohibiting
corporal punishment and introducing positive discipline as an alternative17

CONCLUSION AND PRAYER FOR RELIEF...21

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INDEX OF AUTHORITIES
Constitution
The 1987 Philippine Constitution
Codes, Statutes and Bills
An Act Prohibiting All Forms of Corporal Punishment and All Other Forms of
Humiliating or Degrading Punishment of Children and Promoting Positive and NonViolent Discipline of Children, Appropriating Funds Therefor, and For Other
Purposes [Anti-Corporal Punishment Act of 2013], Senate Bill No. 227 (2013).
An Act Providing For Stronger Deterrence and Special Protection Against Child
Abuse, Exploitation and Discrimination, and For Other Purposes [SPECIAL
PROTECTION OF CHILDREN AGAINST ABUSE, EXPLOITATION AND
DISCRIMINATION ACT], Republic Act No. 7610 (1992).
An Act Defining Violence Against Women and Their Children, Providing For
Protective Measures for Victims, Prescribing Penalties Therefore and for Other
Purposes [ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT
OF 2004], Republic Act No. 9262 (2004)
The Family Code of the Philippines, Executive Order No. 209, art. 211 (1987).

An Act Revising the Penal Code and Other Penal Laws [REVISED PENAL CODE],
Act No. 3815 art. 263 (1930).

9, 11

11,17, 18,
19, 20

16

16

13, 14, 17,

17

Treaties, Conventions and International Instruments

Committee on the Rights of the Child, General Comment No. 8, available at
http://daccess-ods.un.org/access.nsf/Get?Open&DS=CRC/C/GC/8&Lang=E (last
accessed Aug 25, 2013).

11, 12

Convention on the Rights of the Child, Nov. 20, 1989, available at

http://www.ohchr.org/en/professionalinterest/pages/crc.aspx

10, 12

Statute of the International Court of Justice, available at http://www.icjcij.org/documents/?p1=4&p2=2&p3=0Icj

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Philippine Cases
Pat-Og v. Civil Service Commission, G.R. No. 198755, Jun. 5, 2013, available in
http://sc.judiciary.gov.ph/jurisprudence/2013/june2013/198755.pdf

17

Books
JOAQUIN G. BERNAS, S.J., THE 1987 PHILIPPINE CONSTITUTION: A
COMPREHENSIVE REVIEWER 19 (2011 ed.).

Internet Sources
African Commission on Human and Peoples Rights, Curtis Francis Doebbler v.
Sudan, as cited in
http://www.unicef.org/violencestudy/2.%20World%20Report%20on%20Violence%2
0against%20Children.pdf

12

Carlos O. Tulali, Parenting Without Punishing, available at

http://www.scribd.com/doc/22401007/Anti-Corporal-Punishment-of-Children

10, 15, 16

Nelson Mandela. World Report on Violence and Health, available at

http://www.who.int/violence_injury_prevention/violence/world_report/en/summary_e
n.pdf

Situation of the Filipino Children 2012. available at

http://cwc.gov.ph/index.php/dls/category/7-facts-children?download=92%3A2012situationer-on-children

Save the Children, A Time for Change, available at

http://www.pstcrrc.org/docs/CorpPunishment_Book_2.pdf (last accessed August 24,
2013).

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10, 14

SUMMARY OF PLEADINGS

Children are accorded with rights that directly support their wholesome development as an
effective member of society and are grounded upon the idea of a childs civic efficiency and the
development of moral character. Hence, the idea of corporal punishment as a means of
discipline serves as a deterrent in adhering with the main contention of such rights and this is
addressed by the passage of the Anti Corporal Act of 2013.
First, the Constitution recognizes the protection accorded to children against even those
who exercise parental authority for the benefit of their development and growth. Furthermore,
International Conventions and Treaties on childrens rights upon which the Philippines is a stateparty thereto provide for similar protection against all forms of physical and mental violence,
mandating strict compliance. Corporal Punishment involves not only physical, but also mental
and emotional violence detrimental to the development of a child. Thus, acts that go against the
established rights of children and negatively affects their being wholesome individuals should be
given preventive action.
Second, there are provisions in the Family Code which tend to leave out a gray area
between statutorily allowed discipline and cruelty amounting to the termination of parental
authority. As the qualifications for the latter are given specifically, there is a room for
circumvention when an act exceeds the confines of discipline, but falls short of those amounting
to cruelty, without any corresponding penalty thereto. Such area is treated as corporal
punishment, but is hidden under a veil of discipline. Hence, the bill addresses these

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circumstances by filling in the vacuum and giving corresponding punishment. But even
assuming that corporal punishment can be limited; there is still a need for an alternative method
of discipline that would prevent even the smallest amount of circumvention leading to a violation
of established rights.
Lastly, current special laws, as well as penal laws, do not explicitly reprimand acts that are
construed to be corporal punishment. These statutes provide for broadened terms that are either
too extreme as to discount corporal punishment, or too subjective hence allowing circumvention.
Furthermore, as intent is material under our penal laws, offenders would only use such as a
defense in order to reduce criminal liability under the guise of disciplinary action. Hence, the
introduction of the Anti-Corporal Punishment Act of 2013 which comprehensively covers both
prohibition of and introduction of an alternative to corporal punishment as a means of discipline
would directly address acts that are clearly violative of childrens rights yet are not punishable
under existing laws.

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PLEADINGS and AUTHORITIES

I. CHILDREN ARE AFFORDED RIGHTS TO PROTECTION UNDER PHILIPPINE

LAWS
Children, among the members of society, are the most susceptible to abuse and violence1.
For instance, the Department of Social Welfare and Development handled a total of 5, 691 cases
of child abuse for the year 2011 alone2. In response to this reality, the State is expected to adopt
preventive measures to ensure that no one takes advantage of children and their vulnerability. A
survey of Philippine laws would reveal that children are, in fact, granted with rights to receive
protection against any form of harm or abuse detrimental to their development.
The fundamental law of the land for instance, sets forth the duty of the State to intervene
with family matters whenever the best interests of the child necessitate. Section 12 of Article II
of the 1987 Constitution provides that:
The State recognizes the sanctity of the family life and shall protect
and strengthen the family as a basic autonomous social institution.
..

NELSON MANDELA, Foreword, World Report on Violence and Health, available at

http://www.who.int/violence_injury_prevention/violence/world_report/en/summary_en.pdf (last
accessed Aug. 23, 2013).
2

Situation of the Filipino Children 2012. available at

http://cwc.gov.ph/index.php/dls/category/7-facts-children?download=92%3A2012-situationeron-children (last accessed Aug. 23, 2013).
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The natural and primary right and duty of the parents in the rearing
of the youth for civic efficiency and the development of moral
character shall receive the support of the Government.3
Parents have the utmost authority of rearing their children to become effective members of
society. In cases where parents fail or are unable to cope with their duties to their children, the
State has the authority and duty to step in and intervene as parens patriae.4 In effect, the state
protects the family and its autonomy, but the grant of privacy of the family, like other rights, is
not absolute. The state has the right and duty to intervene whenever necessary. Only those
interests of the State of the highest order and not otherwise served can overbalance the primary
interest of parents.5 The development of children is of such character. Hence, acts that are
prejudicial to the childs development must be given positive action by the State.
Section 2 of Article II of the Constitution provides that International Laws form part of the
law of the land6. Treaties are a source of International Law7. The Philippines, being a state party
to the Convention on the Rights of the Child (CRC), is mandated to adhere to the standards and
obligations imposed therein. The treaty views a child not as property of their parents, but human
beings with rights. Section 2 Article II of the CRC provides that States shall take all measures to
ensure that the child is protected against all forms of discrimination or punishment from parents,

PHIL. CONST. art.

VI, 12.

JOAQUIN G. BERNAS, S.J., THE 1987 PHILIPPINE CONSTITUTION: A

COMPREHENSIVE REVIEWER 19 (2011 ed.).
5

Id.

PHIL. CONST. art.

Statute of the International Court of Justice. art. 38, 1.

II 2.

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legal guardians, and family members.8 The State is expected to comply with this obligation in
order to uphold the best interests of the child.
A. Corporal Punishment is incompatible with the legally established safeguards
protecting children
The most common means used to discipline children in the Filipino home is corporal
punishment.9 A study conducted in 2005 by Save the Children Sweden in the Philippines
revealed that 85% of Filipino children who participated admitted that they were being punished
at home.10 Extensive research on the effects of corporal punishment shows that such practice can
cause serious physical and psychological harm to children.11 The negative effects include the
tendency of children subjected to corporal punishment to be more anxious and aggressive than
those disciplined through alternative methods.12 In consideration of the negative effects of such
practice, corporal punishment is not compatible with the legal rights to protection from harm
granted to children. Among the proposed policies of the State that seeks to address the issue of

Convention on the Rights of the Child, , Nov. 20, 1989, art. 2, 2, 1990. available at
http://www.ohchr.org/en/professionalinterest/pages/crc.aspx (last accessed, Aug. 25, 2013).
[hereinafter CRC]
9

Save the Children, A Time for Change, available at

http://www.pstcrrc.org/docs/CorpPunishment_Book_2.pdf (last accessed August 24, 2013).
10

CARLOS O. TULALI, Parenting Without Punishing, available at

http://www.scribd.com/doc/22401007/Anti-Corporal-Punishment-of-Children (last accessed
Aug. 25, 2013).
11

Id.

12

Id.
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prohibiting corporal punishment and introducing alternative disciplinary methods is Senate Bill
227.13
The State must adhere to the mandate of the Philippine Constitution, particularly those that
safeguard the upbringing of children. Allowing corporal punishment as a form of discipline
seemingly circumvents such safeguards. Corporal punishment must therefore be sanctioned since
it can negatively affect a childs development of civic efficiency and the development of moral
character.14 Prohibition on corporal punishment is also in consonance with responsible
parenthood15 and freedom from all forms of derogatory acts 16 set forth under Article XV of the
Constitution. The need for a law banning corporal punishment that would redound to the States
police power as parens patriae is simply a logical extension of existing limitations.
The CRC does not explicitly ban corporal punishment. Human rights instruments, however,
must be regarded as, a living instrument whose interpretation develops over time.17
Accordingly, the Committee on the Rights of the Child declared corporal punishment as
incompatible with the treaty.18 A right to punish would be equivalent to a State-sanctioned

13

An Act Prohibiting All Forms of Corporal Punishment and All Other Forms of Humiliating or
Degrading Punishment of Children and Promoting Positive and Non-Violent Discipline of
Children, Appropriating Funds Therefor, and For Other Purposes [ANTI-CORPORAL
PUNISHMENT ACT OF 2013], Senate Bill No. 227 (2013).
14

PHIL. CONST. art.

II, 12.

15

PHIL. CONST. art.

XV, 3, 1.

16

Id.

17

Committee on the Rights of the Child, General Comment No. 8, available at http://daccessods.un.org/access.nsf/Get?Open&DS=CRC/C/GC/8&Lang=E (last accessed Aug 25, 2013).
18

Id.
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torture which violates the CRC.19 The S.B. 227 is the solution to the mandate of Article 19 of the
CRC which provides, States shall take all appropriate legislative, administrative, and social
measures to protect the child from all forms of physical or mental violencefrom parent, legal
guardian.20 The Committee on the Rights of the Child has required all state parties to enact or
repeal laws to prohibit all forms of violence.21
Protection of the child is of paramount interest. State policies must therefore maintain the
harmony among the laws that grant rights to protection and put prime on the development of the
children. The necessary measure to be adopted by the State as parens patriae should lean toward
that of caution and protection. Admitting that one may never accurately determine the when a
disciplinary act of a parent or any adult starts to become detrimental to a child, it becomes
imperative for the State to ban such acts that may be harmful to their development.

19

African Commission on Human and Peoples Rights, Curtis Francis Doebbler v. Sudan, as
cited in
http://www.unicef.org/violencestudy/2.%20World%20Report%20on%20Violence%20against%2
0Children.pdf
20

CRC, supra note 8, art. 4 and 19

21

Committee on the Rights of the Child, supra note 17

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II. FAMILY CODE PROVISIONS ON PARENTAL AUTHORITY ARE NOT

SUFFICIENT AS PREVENTIVE MEASURES AGAINST CORPORAL PUNISHMENT
A. The Family Code implicitly allows Corporal Punishment
The Family Code provides that both mother and father shall jointly exercise parental
authority over the persons of their common children22 as a natural duty and right23. Such
exercise is not only limited to a childs parents, but also to those who exercise Substitute and
Special Parental Authority24. As provided by law, those who exercise Substitute Parental
Authority shall have the same authority over the person of the child as the parents.25
Those granted such authority are allowed, by express provision, to impose discipline on
them (children) as may be required under the circumstances26. The Code, however, is silent as
to what circumstances would call for such imposition of discipline. Also, it prohibits school
administrators, teachers, and those engaged in child care and exercising special parental
authority from inflicting corporal punishment27, but nowhere provides prohibitions on parents
and other individuals exercising substitute parental authority. In effect, the Family Code
provisions implicitly allow instances of parents and those exercising substitute parental authority
inflicting corporal punishment upon children (1) by granting parents not only the right to

22

The Family Code of the Philippines, Executive Order No. 209, art. 211 (1987).

23

Id. art. 209.

24

Id. ch. 2, title 9

25

Id. art. 233, 1.

26

Id. art. 220, 8.

27

Id. art. 233, 2.

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discipline their children but also the discretion as to when such discipline is called for; and (2) by
excluding them from the express provision that prohibits the infliction of corporal punishment.
B. There is a lack of standards that limits the exercise of parental right to discipline
children
Standards defining what constitutes acceptable and reasonable imposition of discipline
would serve to control the exercise of the right of parents in disciplining their children. The
Family Code provisions, however, do not provide such standards necessary for effectively
protecting children from the harm of corporal punishment. Case law is also silent on the matter.
There is yet to be a landmark case interpreting and establishing delineations on what constitutes
reasonable discipline. This lack allows disciplinary measures to take various forms of
punishment not limited to physical abuse but also psychological abuse, verbal abuse, ridicule,
isolation or ignoring the child.28 Such acts endanger the childrens right to dignity and selfrespect29.
The Family Code does not grant an absolute right to parents to impose discipline on
children. It implicitly provides a limit to this right by way of termination of parental authority
whenever the person exercising such authority treats the child with excessive harshness and
cruelty.30 The lack of standards clarifying what constitutes excessive harshness and cruelty
that would warrant the termination of parental authority result in a gray area. This gray area
pertains to acts considered unreasonable and abusive disciplinary measures beyond what are
allowed under Article 220, paragraph 8 yet are not cruel and excessively harsh enough to
28

Save the Children, A Time for Change, available at

http://www.pstcrrc.org/docs/CorpPunishment_Book_2.pdf (last accessed August 24, 2013).
29

Id.

30

The Family Code of the Philippines, art. 231.

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warrant termination of parental authority under Article 233. Under the Family Code, there is no
liability for those who exercise measures falling in such gray area. The acts that constitute
corporal punishment enumerated in SB 227 may well be taken as acts falling under this gray
area. The Senate Bill can fill the vacuum by defining such acts and providing penalties for them.
C. Even assuming that the State can limit instances of corporal punishment under the
Family Code provisions, prohibition of corporal punishment alone is incomplete.
Even assuming, arguendo, that case law is able to provide standards that would limit the
exercise of the parental right of disciplining ones children, thereby effectively prohibiting
corporal punishment, such measure is incomplete. In order to effectively lessen cases of corporal
punishment among the families, an alternative disciplinary method must be introduced.31
Positive ways to teach, correct, or discipline childrenare better for childrens development
and contribute to building relationships based on trust and mutual respect.32 The Senate Bill
provides for a complete preventive measure to lessen cases of corporal punishment since it not
only seeks to prohibit such acts but also extensively deals with the introduction of a healthier
disciplinary measure to Filipino families.

31
32

TULALI, supra note 10, at 4

.Id.
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II. PENAL AND SPECIAL LAWS SUPPOSEDLY FILLING IN THE GAPS OF THE
FAMILY CODE PROVISIONS BY IMPLICITLY OR EXPLICITLY PROHIBITING
CORPORAL PUNISHMENT ARE NOT ADEQUATE.
A. Special Laws prohibiting abuse and violence do not necessarily prohibit
corporal punishment
RA 761033 and RA 926234 both penalize acts of abuse and violence against children. Both
give emphasis not only to physical, but emotional, psychological maltreatment and neglect as
well. RA 7610 may arguably be broad in scope so as to include the acts sought to be prohibited
under SB22735. The same may be true for RA 9262. However, abuse and violence, on one
end, and corporal punishment on the other, are not treated similarly under family laws. Whereas
there are no immediate legal defenses for abuse and violence against children, acts inflicting
corporal punishment are means of discipline that is implicitly allowed in the Family Code. Acts
done for the purpose of imposing corporal punishment which may be possibly abusive and
violent for the child are possibly justifiable under the provisions on parental authority.

33

An Act Providing For Stronger Deterrence and Special Protection Against Child Abuse,
Exploitation and Discrimination, and For Other Purposes [SPECIAL PROTECTION OF
CHILDREN AGAINST ABUSE, EXPLOITATION AND DISCRIMINATION ACT], Republic
Act No. 7610 (1992).
34

An Act Defining Violence Against Women and Their Children, Providing For Protective
Measures for Victims, Prescribing Penalties Therefore and for Other Purposes [ANTIVIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004], Republic Act No.
9262 (2004).
35

TULALI, supra note 10.

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B. Penal laws implicitly prohibiting corporal punishment allow offenders to invoke

good faith as defense
Provisions of the Revised Penal Code such as Article 263 on serious physical injuries36 that
allegedly serve to provide sanctions for offenses involving corporal punishment do not do so
effectively especially when intent becomes material in determining criminal liability. It becomes
easy for offenders who violated such laws while exercising parental authority over children to
invoke good faith as a defense given that the Family Code grants them the authority to impose
discipline upon children37. For instance, a teacher who punched his student in the stomach for
disobedience was accused of grave misconduct. Lowering the penalty for the accused, the
Supreme Court said that he was not motivated by bad faith or ill will because he acted in the
belief that, as a teacher, he was exercising authority over Bang-on in loco parentis, and was,
accordingly, within his rights to discipline his student.38
C. Senate Bill 227 provides for a more comprehensive approach in prohibiting
corporal punishment and introducing positive discipline as an alternative
The Senate Bill does not only seek to prohibit and penalize corporal punishment, it
comprehensively outlines the steps to be taken in order to promote positive and non-violent
disciplinary measures39. The enactment of the contended bill would not only enable the State to
36

An Act Revising the Penal Code and Other Penal Laws [REVISED PENAL CODE], Act No.
3815 art. 263 (1930).
37

The Family Code of the Philippines, art. 233 1.

38

Pat-Og v. Civil Service Commission, G.R. No. 198755, Jun. 5, 2013, available at
http://sc.judiciary.gov.ph/jurisprudence/2013/june2013/198755.pdf (last accessed Aug. 25,
2013).
39

Senate Bill No. 227 Anti-Corporal Punishment Act of 2013 11 and 12

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act upon the constitutionally enacted rights of children, it would also fill statutory gaps in the
Family Code, Penal Laws and Special Laws.
1. SB 227 Clearly Defines and Delineates Acts Constituting Corporal Punishment
The bill defines Corporal Punishment as Punishment or penalty for an offense, real or imagined,
and/or acts carried out for the purpose of discipline, training
or control, inflicted by an adult, who has been given or has
assumed authority or responsibility for punishment or
discipline. It includes physical and humiliating or degrading
punishment, such as but not limited to40
Light physical acts against the child, verbal abuse, coercion, threats, confinement,
humiliation and other degrading means, and use of external substances all of which are
employed for the sole purpose of discipline, are sanctioned under the bills purview. 41 These acts
would necessarily fill in the vacuum that exists between discipline and excessive punishment.
2. SB 227 enumerates who has standing to file charges
Furthermore, the proposed bill specifies those who have standing to file against corporal
punishment or humiliating or degrading treatment of children, which includes the child
him/herself, immediate family members (including those within the 3rd degree of consanguinity
or affinity), officers of both private and public welfare institutions, public authorities and their
40

Senate Bill No. 227 Anti-Corporal Punishment Act of 2013 3 b7

41

Id. 3 b7
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agents, teachers, NGO workers, health providers, or at least two concerned persons having
knowledge of such acts.42
3. SB 227 Introduces Positive Discipline as an Alternative to Corporal Punishment
The bill introduces the definition of Positive Discipline an aspect that is mentioned, but
not defined under the Family Code. It is an approach to parenting that teaches children and
guides their behavior, while respecting their rights to healthy development, protection from
violence and participation in their learning.43
4. SB 227 specifically identifies measures to be taken to promote positive discipline
Comprehensive programs that would tend to promote the positive and non-violent
discipline of children and the prevention of the use of corporal punishment and humiliating or
degrading forms of punishment44 shall be established by governmental organizations with the
help of the private sector, academic institutions, and parent-teacher-community associations are
ensured by the bill.45 The Department of Social Welfare and Development, Department of
Education, and Commission on Higher Education shall also administer training programs
towards officials, teachers and personnel of schools and child-caring institutions.46 Assistance

42

Senate Bill No. 227 Anti-Corporal Punishment Act of 2013 6

43

Id. 3 g

44

Id. 12

45

Id. 12

46

Id.
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given by all local social welfare and development offices and Local Councils for the Protection
of Children shall also be afforded to victims.47
Also, all relevant information within the Act shall be disseminated by the Council for the
Welfare of Children to all relevant and concerned government agencies and entities for the
purpose of effective implementation.48 In connection, local government units are empowered to
act upon cases of corporal punishment49. For effective deterrence, the Sangguinang Kabataan is
also mandated to include programs having the purpose of preventing corporal punishment.50

47

Senate Bill No. 227 Anti-Corporal Punishment Act of 2013 . 12 c

48

Id. e

49

Id. f

50

Id. g,
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CONCLUSION AND PRAYER FOR RELIEF

The respondents, upon the aforementioned pleadings, respectfully requests that the AntiCorporal Punishment Act of 2013 (or Senate Bill 227) be passed in its full extent.
As the Family Code implicitly allows corporal punishment that is in violation of
Constitutionally-created rights as well as international treaties and conventions upon which the
Philippines is a state party there to, respondent deems it of the highest importance to repeal
Article 233 of the Family Code and restate Articles 220 (8) and 23 as:
Furthermore, in the application of Articles 220 (8) and 231 of the Code, respondent deems
it necessary to incorporate the provisions of the Anti-Corporal Punishment Act of 2013 [Senate
Bill 227] to the effect of setting boundaries between discipline and excessive punishment or
cruelty to children.

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