In Senate Bill No. 1427 (2007) filed by Sen. M. A. Madrigal, the matter of command responsibility was addressed, inspired by the recommendations made during the Supreme Court-led national summit on extrajudicial killings and enforced disappearances held in July 2007. I had the opportunity to participate in the precedent-setting national summit, upon invitation of the Chief Justice Reynato Puno. All sectors were duly represented, from the Left to the Right.
It will be noted that the Rules of Evidence of the Philippines do not create the presumption of command responsibility against the superiors of government employees and agents who are guilty of extrajudicial or political killings and enforced disappearances.
In her explanatory note, the proponent of the bill, Sen. Madrigal, stated that “the repeated involvement or implication of accused and suspected soldiers or subordinates in the rampant, country-wide and systematic cases of extrajudicial killings and enforced disappearances could not have transpired without their superiors ordering or at the very least knowing or encouraging these acts”. She added that “not one suspected perpetrator of any of the 871 summary killings and 180 enforced disappearances of political activists since January 2001 had been arrested, tried and convicted and that the climate of impunity had fostered the thinking that the unabated bloody pattern targeting leftist activists stems from an official state policy that had placed murderous wrongdoers beyond the reach of the law”.
The good senator added that “a commanding officer has the legal duty to take the necessary measures to prevent human right violations and to punish the perpetrators thereof”. The doctrine of command responsibility has long become part of “customary international law”. It has since been continuously refined and expanded in many jurisdictions, especially with the creation of the International Criminal Court to combat impunity for war crimes, crimes against humanity and genocide. While the Philippines has yet to ratify the ICC treaty, “it however adopts the generally accepted principles of international law as part of the laws of the land, which makes the doctrine of command responsibility an essential part of the country’s domestic law”, she stated.
The Additional Protocol I of the Geneva Convention states thus: ”The fact that a breach of the Conventions or this Protocol was committed by a subordinate does not absolve his superiors from responsibility if they knew, or had information which should have enabled them to conclude in the circumstances at the time that he was committing or about to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.”
Further, the International Criminal Tribunal for the former Yugoslavia Article 7(3) establishes that “crimes committed by a subordinate do not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators”.
Domestically, Executive Order 226 issued by President Fidel V. Ramos on 17 February 1995 states that, “Any (AFP) officer shall be held accountable for neglect of duty under the doctrine of command responsibility, if he has knowledge that a crime or offense shall be committed, is being committed, or has been committed by his subordinates, or by others within his area of responsibility and, despite such knowledge, he did not take preventive or corrective action either before, during or immediately after its commission.”
The principle of command responsibility was first applied in the country in the wartime case of Yamashita (G.R. No. L-129, 19 December 1945). However, the principle has subsequently disappeared in Philippine jurisprudence even if it remains much wanting in the prosecution of criminal cases, according to the sponsor of the bill.
Sen. Madrigal stated that the bill “provides for a legal basis to make superior officials culpable for the acts of their subordinates under the doctrine of command responsibility”; that it “upholds the ethos of responsible leadership and accountability - that government officials must be called to account for their acts, especially murders of political activists and journalists in their jurisdictions, instead of hiding behind the cloak of due process to avoid criminal responsibility”; and that it seeks “to integrate the principle and practice of command responsibility into our justice and political systems, in harmony with existing laws and international law”.
The bill, if approved, would be known as the "Command Responsibility Act of
2007."
It is premised on the following policies: a) To uphold the Constitutional principle that public office is a public trust; b) To implement the basic Constitutional premise that public employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, and act with patriotism and justice; and c) To make public officials and superiors accountable for the acts of their subordinates under the principle of Command Responsibility.
It defines Command Responsibility as “the responsibility of an official or superior for crimes or offenses committed by their subordinates subject to their effective control or supervision or which their subordinates were about to commit or have committed, and such official or superior did not take measures to prevent such commission of crimes or offenses, or having learned about such crimes or offenses did not act to prevent and punish the offending subordinates”.
By “Official/Superior” is meant the person “who has actual powers to exercise effective control over the actions of their subordinates considering their position, their capacity to issue orders, the procedure for appointment; and the tasks that their subordinates are performing; and that they have the material ability to prevent and punish criminal acts of their subordinates”. The control may be “de jure or de facto and the official/superior may be military or civilian”.
The proposed law applies to all employees of the government whether in the executive, legislative and judicial branches and all their agencies and instrumentalities as well as in all Constitutional Commissions.
Any government official or superior shall be responsible for the crimes or offenses committed by their subordinates “if the official or superior has knowledge that a crime will be committed or has been committed by their subordinate and, despite such knowledge, did not take any measures to prevent such commission of crimes or offense, and having learned about such crime or offense did not act to prevent and punish the offending subordinate”.
A military officer or person effectively acting as a military commander shall be criminally responsible for crimes committed by forces under their effective command and control, or effective authority and control as the case may be, as a result of their “failure to exercise control properly over such forces”, where:
1. That military commander or person “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes”; and
2. That military commander or person “failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution”.
The bill creates a presumption. A government official or superior is “presumed
to have knowledge of the crime committed by his or her subordinates when any of the following circumstances are present:
a) When the same crime was committed by his or her subordinates “two or more times in one year, whether or not the said offenses were committed by the same subordinate”;
b) When the crime committed by the subordinate was “pursuant to a policy being implemented by the official or superior whether or not said policy is in writing”; and
c) When the crime was committed “in compliance with the order of the superior, albeit only the intended result was manifested to the subordinate”.
The penalties proposed in the bill are imprisonment not exceeding a maximum of thirty (30) years; a fine; and forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties. In all cases, the penalty provided shall carry with it the accessory penalty of perpetual disqualification from holding public office.
