Doctrine of command responsibility

THE CONTEMPORARY LAW OF SUPERIOR RESPONSIBILITY

American Journal of International Law v.93, no. 3, July 1999 

By Ilias Bantekas⁽¹⁾

 

“x x x.

II. Legal Nature of the Doctrine

The Existence of a Duty 

People who fail to prevent or punish their subordinates' illegal acts are liable under the doctrine of command responsibility. Accordingly, the doctrine does not address actions but omissions. Most systems of criminal law punish unlawful positive conduct, thus requiring the commission of an act. Exceptionally, common law jurisdictions recognize personal liability for omissions only where a specific duty is prescribed either by statute or by the common law.⁽²²⁾ Such duties include those arising from familial,⁽²³⁾ contractual,⁽²⁴⁾ doctor-patient⁽²⁵⁾ and voluntary assumption of care⁽²⁶⁾ relationships, as well as the duty to avert injurious consequences arising from one's own fault.⁽²⁷⁾ 

Express formulations of duties pertaining to commanders are found in Article 86 of Geneva Protocol I (1977), Article 6 of the International Law Commission's (ILC) Draft Code of Crimes Against the Peace and Security of Mankind,⁽²⁸⁾ Article 7(3) of the ICTY Statute,⁽²⁹⁾ Article 6(3) of the ICTR⁽³⁰⁾ Statute and Article 28(2) of the ICC statute.⁽³¹⁾ All these instruments give commanders the responsibility to prevent their subordinates from violating the laws of war and the responsibility to punish their subordinates if the laws of war are violated. 

X x x.

 

III. Subordination

Establishing a Superior-Subordinate Relationship 

The required three elements of the crime have developed over time. Depending on the source from which authority is acquired, the existence of a superior-subordinate relationship can be established in two independent ways, de jure and de facto. The most obvious means for the assumption of power is through official delegation of command from a pertinent office. This authority evinces de jure command over other persons. However, a position of command cannot be determined by reference to formal status alone.⁽⁴⁷⁾ In the absence of a formal grant of authority, the accused must actually be found to possess the right to control subordinates.⁽⁴⁸⁾ Mere authority to control actions of others does not preclude a finding of command responsibility.⁽⁴⁹⁾ 

Such de jure command may be determined by reference to the position of the accused "in the overall organization, with a view to determining [his/her] institutional functions."⁽⁵⁰⁾ Primarily, therefore, the nature of the "organization" must be discerned, and specifically its capacity to delegate further authority. Formal executive structures, such as state entities, usually vest such authority by passing legislative acts, which provide evidence of de jure command. For example, the Akayesu case involved allegations of incitement and complicity of a Rwandan local civilian official for the actions of others resulting in genocide against the Tutsi population residing in his commune. The ICTR Trial Chamber adduced that according to Rwandese law, Akayesu's position as burgomaster placed him as (1) the head of the communal administration; (2) the officier de l'état, and (3) the person responsible for maintaining and restoring the peace.⁽⁵¹⁾ That was sufficient to establish Akayesu's de jure authority as a necessary element of his conviction for the crime of genocide. 

De jure power determines one's competence and jurisdiction in the sense that authority to take action or intervention is confined to a pre-defined field beyond which there exists no competency and subsequently no liability.⁽⁵²⁾ Nonetheless, de jure command is not the best determinant of actual authority, since problems of identification will arise when legislation is absent, obscure, or, even if available, it inadequately describes one's actual functions and the amount of authority actually exercised.⁽⁵³⁾ 
 
The Sources of de Jure Command 

Both the civilian and military components of every state's machinery constitute integral national defense structures. This hierarchical model is built upon a vertical scale, which seeks to effectively filter the dictates of the decision-makers down to the soldier on the battlefield. This vertical scale assumes four general stages of command. The first is policy command. That involves the power to determine policy objectives and, consequently, the power to commit or withdraw a state's armed forces. This is exercised by state leaders either personally or collectively.⁽⁵⁴⁾ The second is the phase of strategic command. The highest military authorities are responsible to produce a viable military plan to achieve policy command objectives. These plans are usually drawn up by the Joint Chiefs of Staff in conjunction with other senior government officials, and require authorization by those with policy command authority before implementation.⁽⁵⁵⁾ 

When the plan is finally authorized, it is passed down the chain of command for implementation on the battlefield. This is undertaken at the third operational level by senior military officers who command midlevel groupings of forces, mainly in the form of corps or divisions. Senior military officers do not issue orders directly to troops, but direct the commanders of smaller groupings.⁽⁵⁶⁾ At the end of the scale, tactical commanders exercise direct command over troops. At this level, persons of any rank may assume tactical command, since even a senior private can head a unit whose other superiors have been incapacitated from battle.⁽⁵⁷⁾ 

This structure is divided differently in cooperative international military actions. In the recent United Nations command structure,⁽⁵⁸⁾ for example, authority for both policy and strategic command is vested in and exercised by the Security Council and, to a very limited degree, by the Secretary-General.⁽⁵⁹⁾ A UN operation consists of a Force Commander who exercises operational command over contingents provided by member states.⁽⁶⁰⁾ For the duration and purposes of the specific operation military personnel under the Force Commander are "international personnel," although they remain in their national service.⁽⁶¹⁾ In practice, Force Commanders have been granted "full authority" over their forces and have as a result been held "operationally responsible" for their performance.⁽⁶²⁾ 
 
De Facto Command and the Concept of Control 

If liability for the acts of others is established through the element of authority over subordinates, it follows that the mere existence of such authority, whether acquired de jure or de facto, renders one a superior for the purposes of Article 7(3) of the ICTY Statute.⁽⁶³⁾ While instances of de facto command authority are a phenomena of civil warfare, their existence was contemplated even in the context of inter-state conflicts. The United States Military Tribunal in the Sadaiche case pointed out that "superior means superior in capacity and power to force a certain act. It does not mean superiority only in rank [since] it could easily happen in an illegal enterprise that the captain guides the major, in which case the captain could not be heard to plead superior orders."⁽⁶⁴⁾ In that case, the accused, a commanding officer of a POW camp, was held liable because he was led to acquiescence by his "more powerful adjutant."⁽⁶⁵⁾ Power to force a certain act inevitably involves the power to demand and an actual capacity to impose obeisance. Therefore, usurpation of authority contrary to national law would not prevent an individual from being convicted on the basis of command responsibility for international crimes committed if the person had de facto authority. 

This view was upheld during the preparatory conferences that led to Protocol I (1977), where reference to "commanders" in Article 87 encompassed persons in command "at the highest level to leaders with only a few men under their command."⁽⁶⁶⁾ This consistent irrelevance of rank in attributing superior responsibility indicates that the international law-making institutions look to actual and effective control,⁽⁶⁷⁾ rather than formality.⁽⁶⁸⁾ Article 87 of Geneva Protocol I (1977) extends the legal obligations of commanders beyond troops under their command to cover in addition "other persons under their control."⁽⁶⁹⁾ This obligation is applicable to superiors at all levels of command.⁽⁷⁰⁾ If the case were different, superiors with ample means to intervene in crimes committed by troops under their control, but not under their command, would be fully justified in being passive. Accordingly, the concept of "command" is not the only operative term for ascribing command liability, as the text of Article 87 extends the obligations of commanders to troops under their control.⁽⁷¹⁾ 

Evidence of de facto control requires proof of a superior-subordinate relationship.⁽⁷²⁾ The elebii judgment recognized that the accused, Delali, by special authorization of his local War Presidency, was authorized to negotiate and conclude important contracts and agreements on their behalf, but noted that he never acquired any status which placed him in a hierarchy of authority creating a superior and subordinate relationship.⁽⁷³⁾ His function was described as one of "co-ordination." This consisted of negotiating agreements for the President. That rendered him influential, but it did not create a superior-subordinate relationship.⁽⁷⁴⁾ Control in this sense must be effective. However, partial control will suffice when superiors have not exercised their potential for full control, in an attempt to evade personal liability.⁽⁷⁵⁾ Similarly, when troops not normally under one's command are assigned to another's forces, they too are considered to be forces under the special commander.⁽⁷⁶⁾ 

A superior-subordinate relationship finally requires a chain of command.⁽⁷⁷⁾ Thus, tactical commanders exercise "direct subordination" over troops assigned to them, while commanders of occupied territory (executive commanders) enjoy "indirect subordination" over a civilian mob which they are under a duty to prevent from committing crimes against other civilians in the territory occupied.⁽⁷⁸⁾ Since a chain of command is a prerequisite for the exercise of superior authority, it follows that one cannot be termed a superior without corresponding subordinates.⁽⁷⁹⁾ That is why staff officers, who, irrespective of their rank, do not command troops, are only responsible when their participation in the delivery and execution of criminal orders is proven.⁽⁸⁰⁾ The sole exception to the requirement of subordination is the case of executive commanders in occupied territory.⁽⁸¹⁾ Their responsibility is coextensive with their area of command,⁽⁸²⁾ and is not dependent on the persons they command or the exercise of effective control. They are responsible for the behavior of the occupation forces as well as the civilian population in the occupied territory.⁽⁸³⁾ 
 

X x x.

 

V. Types of Command And Extent of Liability

Superior authority necessitates a chain of command.⁽¹²⁰⁾ While operational command supposes vested authority over units linked to the operational superior through the leader of each unit, tactical command refers to a state of actual control over a defined number of subordinates. Command and control are thus not the same thing but are evidently inter-related.⁽¹²¹⁾ The following is an analysis of the necessary and reasonable measures expected of operational, tactical and POW camp commanders, as well as the extent of their liability in accordance with either the people they command or control, or the territory they occupy. 
 
Operational Commanders 

The Yamashita case is a fine example of operational command. The accused, Supreme Military Commander of the Japanese Imperial Army on the Philippines and Governor of the islands, was charged with breaching his duty to control his troops, thereby permitting them to perpetrate numerous and large-scale offenses.⁽¹²²⁾ Despite his de jure command, Yamashita, who assumed his post only eleven days before the invasion by United States forces,⁽¹²³⁾ ordered a partial evacuation. He then split the remainder of the Japanese forces into three separate fighting units, ceding full command of two, and commanding the other himself.⁽¹²⁴⁾ Contrary to his orders, the evacuation did not occur, and Yamashita was left isolated in a remote mountainous region, apparently lacking communications with his headquarters and the two other commanders.⁽¹²⁵⁾ 

Yamashita's conviction was upheld for acts of troops beyond his de facto control, on the ground that operational command responsibility cannot be ceded for the purposes of the doctrine of command responsibility even though the specific aspects of such command are actually ceded to others.⁽¹²⁶⁾ This rule, referred to as the "delegation principle," is recognized as a general principle of criminal law.⁽¹²⁷⁾ It strains the mind to consider the possibility of upholding criminal responsibility in cases where both de facto control is missing and de jure command was already ceded for military purposes and not for the purpose of escaping criminal responsibility.⁽¹²⁸⁾ Certainly, it must have seemed to the Supreme Court that authority was delegated for the purpose of evading responsibility which raised the risks of crime.⁽¹²⁹⁾ Command responsibility cannot be avoided. 

The test followed in subsequent cases strikes a reasonable balance between knowledge of subordinate offenses and material capacity to act. Thus, the murderous onslaught of Japanese forces on the Chinese city of Nanking under the command of General Matsui, rendered the General liable even though he issued instructions to abide by the laws of war, albeit lukewarm instructions at best, because he had every opportunity and ability to act to prevent and stop the crimes.⁽¹³⁰⁾ It is now well established that operational commanders must exercise the full potential of their authority to avert war crimes. They will not be exonerated in cases of non-assertive orders or failure to supervise their implementation.⁽¹³¹⁾ Similarly, the United States Military Tribunal in the High Command case demanded a "personal dereliction," for the application of the failure to act doctrine,⁽¹³²⁾ indicating that command responsibility was not viewed as a form of vicarious or strict liability. Personal dereliction in this sense is tantamount to a failure to supervise. That supervision is commensurate with the exercise of actual control in the given circumstances. Knowledge of every aspect of operational command is not required.⁽¹³³⁾ Rather, commanders may lawfully, within reason, presume that "details entrusted to subordinates will be legally executed."⁽¹³⁴⁾ 
 
Executive Commanders 

Executive or occupation commanders are those individuals vested by the occupying state with supreme governing authority in the occupied territory. The difference between operational and executive commanders is that while the former are responsible for the acts of people under their command or control, the latter are accountable within the territory they occupy to assure that the rights of civilians and POWs therein are fully protected. In the case of executive commanders, subordination is unimportant, their responsibility is co-extensive with their appointed command structure.⁽¹³⁵⁾ This responsibility cannot be limited, even by a commander's own state's legislation.⁽¹³⁶⁾ Since executive superiors are not bound under the rule of subordination, they have a duty to prevent and punish crimes which involve auxiliary or allied forces stationed within their area of command.⁽¹³⁷⁾ A similar duty exists in cases of inter-communal rivalry.⁽¹³⁸⁾ Commanders are also obliged to enforce discipline in related events in order to protect both local majorities and minorities. 

In cases where executive commanders also perform operational tasks, they must nonetheless be aware of any occurrences within their territory, even if they are not present.⁽¹³⁹⁾ Hence, the exercise also of operational command does not absolve them from their executive command obligations. Acquisition of information can be achieved by demanding constant and reliable appraisal of all pertinent facts.⁽¹⁴⁰⁾ This generally involves establishing an effective reporting system which would ensure delivery of adequate and up to date information to the commander.⁽¹⁴¹⁾ The duty of executive commanders to protect and care for the welfare of civilians is a strict responsibility element in the actus reus definition of their command responsibility.⁽¹⁴²⁾ 
 
Persons Entrusted with the Care of Prisoners 

According to a basic principle of military law and practice, once under captivity, prisoners become subordinates to the captor commanders,⁽¹⁴³⁾ and are deemed to be in the hands of the captor state.⁽¹⁴⁴⁾ Since Hague Convention IV (1907) POWs are customarily offered humane treatment.⁽¹⁴⁵⁾ Therefore, responsibility for their treatment rests with government officials, operational officers in command of formations who are holding the prisoners, as well as officials in departments concerned with prisoner welfare and any other civilian or military official being in direct and immediate control of prisoners.⁽¹⁴⁶⁾ It seems unreasonable, however, to hold government officials responsible without requiring proof of knowledge and a capacity to act.⁽¹⁴⁷⁾ However, rules that hold the Head of government and minister in charge of prisoner affairs responsible are reasonable, since these officials' duties are to acquire knowledge and act accordingly.⁽¹⁴⁸⁾ 

While the liability of POW camp commanders is based on direct subordination,⁽¹⁴⁹⁾ the responsibility of departmental officials charged with prisoner affairs can be justified only if assimilated to that of staff officers who exercise neither command nor control authority. They would incur responsibility only when there is proof of direct participation.⁽¹⁵⁰⁾ Since camp commanders are entrusted with the care of prisoners, subordination of any kind is irrelevant; their authority and responsibility extends over the entire institution and all its personnel.⁽¹⁵¹⁾ 
 

X x x.

 

VII. The Duty to Act

Article 7(3) of the ICTY Statute, Article 6(3) of the ICTR Statute, Article 86(2) of Geneva Protocol I and Article 28(1)(a) of the ICC statute firmly establish the existence of a duty to prevent and a duty to punish the crimes of subordinate persons.⁽¹⁹⁰⁾ They constitute distinct and independent legal obligations,⁽¹⁹¹⁾ and this is further affirmed by the use of the disjunctive "or" in Article 86(2) of Geneva Protocol I. These articles necessarily suggest a further "duty to control." 
 
The Duty to Prevent 

Article 86(2) of Geneva Protocol I and Article 7(3) of the ICTY Statute expressly establish a duty to prevent at the moment subordinates "are going (or "are about") to commit a crime."⁽¹⁹²⁾ The duty to prevent commences upon the preparation or planning of an offense by subordinates. Commanders are even responsible for failure to prevent if they fail to take into account factors such as the age, training or similar elements that point to obvious conclusions regarding the likelihood that such crimes would be committed.⁽¹⁹³⁾ The abundance of information clearly indicating a massacre at two Palestinian refugee camps in Lebanon that was available to the Israeli Chief-of-Staff and the Defense Minister rendered them "indirectly responsible" under a test of anticipated foreseeability lacking direct intent.⁽¹⁹⁴⁾ Their duty, according to a subsequent investigative report of a governmental commission, was to recognize the potential danger and to prevent the killings by doing everything in their power to stop them.⁽¹⁹⁵⁾ 

Superiors successfully discharge their duty to prevent subordinate crimes when they employ every means in their power to do so.⁽¹⁹⁶⁾ This also involves pointing out objections to a criminal plan, even if the accused has no further authority to intervene.⁽¹⁹⁷⁾ Reference to a duty to prevent has been limited thus far in the ICTY and ICTR.⁽¹⁹⁸⁾ In the Akayesu case, Trial Chamber I pointed out that whether a superior had the power to prevent the crimes of subordinates is irrelevant if the superior did not attempt to do so.⁽¹⁹⁹⁾ However, failure to condemn incendiary statements uttered at an already formed gathering would not be tantamount to approval.⁽²⁰⁰⁾ This conclusion should be approached with some caution since it arose in the unique circumstances of the Rwandan massacres. It may not reflect a statement of general law,⁽²⁰¹⁾ but may pertain to civilian superiors whose authority to intervene is unclear.⁽²⁰²⁾ 
 
The Duty to Punish 

A superior's "duty to punish" arises after the commission of an offense. It is predicated upon offenses by others which have already occurred, not future offenses.⁽²⁰³⁾ Punishment is, therefore, intended to deter the commission of future offenses. This duty to punish is distinct from a commander's preventive duty. For that reason, failure to prevent recurrence of future crimes is another aspect of the "duty to punish."⁽²⁰⁴⁾ Failure to punish, as a form of command responsibility, is a species of imputed responsibility for an omission and is neither akin to the common law concepts of "accessory after the fact"⁽²⁰⁵⁾ nor "misprision of felony."⁽²⁰⁶⁾ The duty to punish does not require a pre-existing relationship to those who perpetrated the offenses, as this would have been part of the incumbent superior's preventive duty at the time the offenses occurred. Thus even persons who assume command after such offenses have taken place are under a duty to investigate and punish the offenders. 

Since it will not always be feasible to initiate judicial proceedings, especially in the midst of military operations, the only available option may be to commence adequate investigations and report the findings to superiors. Tolerating criminal conduct, as evidenced by the failure to punish, is tantamount to acquiescence.⁽²⁰⁷⁾ When superiors are physically unable to prosecute, arrest, incarcerate or in any way discipline a subordinate, they must try to discover whether crimes were committed and, if they are ongoing, to find ways to stop them.⁽²⁰⁸⁾ If a crime is discovered, they must refer the case to the appropriate judicial or prosecutorial authorities, or to any other competent

authority.⁽²⁰⁹⁾ 

In conclusion, a superior should be held responsible for failing to take all measures that are "within his material possibility."⁽²¹⁰⁾ Trial Chamber I in the elebii case correctly disagreed with the ILC's demand that both legal and material possibility to take appropriate measures be present. The Chamber took the position that only the latter is required.⁽²¹¹⁾ It would be absurd for superiors to claim that they were not legally entitled to prevent an act of genocide when they were materially capable of doing so. 
 
x x x.

VIII. Conclusion

The interplay between humanitarian and criminal law at the international level suggests that the best approach to the doctrine of command responsibility should be through the concept of control. Assessment of de jure command must not mislead tribunals as to the accused's actual authority. This in no way widens the ambit of command responsibility, since it follows the established principle of international law that actual power is linked to responsibility. The interest of the state in the protection of its officials should not obstruct the development of these norms. If the international community seriously intends to combat gross human rights violations it has to do so irrespective of particular states interests in order to attain the interests of the broader international society. An ideal ground would be to strengthen the international criminal justice system in ways that would not jeopardize national security interests by applying the law uniformly regardless of the state or region involved. 

Increasingly, the need for review or re-assessment of humanitarian norms will arise, especially when cases come before tribunals, such as the ICTY and ICTR. Then, factors like the unpredictable nature of civil warfare will demand adaptation of established rules to fit these new circumstances. Since Yamashita, the law of command responsibility has moved to new realms. The question now seems to center around the issue of subordination and control, while fierce debate exists on the applicable mens rea standard. A presumption of knowledge in cases of notorious and widespread criminality is an emerging rule of customary law. The traditional "failure to act" doctrine is too limited to cover situations in which a superior's negligent or deliberate inactivity to control his or her troops causes crimes to be committed by them when under another superior's command. 

Furthermore, command responsibility should not be overlooked when examining the nature of a mixed conflict. The ICJ in the Nicaragua case determined that when an intervening state gives "direct and critical combat support" to an insurgent force and insurgent operations reflect "strategy and tactics wholly devised" by the intervening state, then an agency relationship is established.⁽²²²⁾ Indeed, despite the inconsistent understanding and application of the Nicaragua test by the various ICTY Chambers,⁽²²³⁾ in cases where an agency relationship is found to exist it is not far-fetched to consider the military or political leaders of the intervening state to be individually responsible for certain acts of their agent "subordinates." 

The obvious strategy for any prosecution for a breach of humanitarian law is to choose one that provides evidence of the accused's direct participation in the crime, such as ordering or inciting the actions, preserving command liability as a second option. In any event, however, prosecutorial authorities should not hesitate to indict persons who, while in positions of authority and with knowledge of subordinate criminality, intentionally or negligently fail to prevent or punish those persons who directly participated in the crime. 

X x x.”

Conspiracy of silence and inaction

EN BANC
[G.R. No. 81563. December 19, 1989.]
AMADO C. ARIAS, petitioner, vs. THE SANDIGANBAYAN, respondent.
[G.R. No. 82512. December 19, 1989.]
CRESENCIO D. DATA, petitioner, vs. THE SANDIGANBAYAN, respondent.
Paredes Law Office for petitioner.

"SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CONSPIRACY; PROOF OF EXISTENCE THEREOF. C A conspiracy need not be proved by direct evidence of the acts charged, but may and generally must be proven by a number of indefinite acts, conditions and circumstances (People vs. Maralit, G.R. No. 71143, Sept. 19, 1988; People vs. Roca, G.R. No. 77779, June 27, 1988).

2. ID.; ID.; ID.; ESTABLISHED BY THE SILENCE AND INACTION OF ACCUSED. C This case presents a conspiracy of silence and inaction where chiefs of office who should have been vigilant to protect the interest of the Government in the purchase of Agleham's two-hectare riceland, accepted as gospel truth the certifications of their subordinates, and approved without question the million-peso purchase which, by the standards prevailing in 1976-78, should have pricked their curiosity and prompted them to make inquiries and to verify the authenticity of the documents presented to them for approval. The petitioners kept silent when they should have asked questions; they looked the other way when they should have probed deep into the transaction. Since it was too much of a coincidence that both petitioners were negligent at the same time over the same transaction, the Sandiganbayan was justified in concluding that they connived and conspired to act in that manner to approve the illegal transaction which would favor the seller of the land and defraud the Government.

3. ADMINISTRATIVE LAW; STATE AUDIT CODE OF THE PHILIPPINES; ASPECTS OF THE AUDITIONAL FUNCTION OF AN AUDITOR. C The primary function of an auditor is to prevent irregular, unnecessary, excessive or extravagant expenditures of government funds. The auditorial function of an auditor, as a representative of the Commission on Audit, comprises three aspects: (1) examination; (2) audit: and (3) settlement of the accounts, funds, financial transactions and resources of the agencies under their respective audit jurisdiction (Sec. 43, Government Auditing Code of the Phil.). Examination, as applied to auditing, means "to probe records, or inspect securities or other documents; review procedures, and question persons, all for the purpose of arriving at an opinion of accuracy, propriety, sufficiency, and the like." (State Audit Code of the Philippines, Annotated by Tantuico, 1 982 Ed., p. 57.)

4. REMEDIAL LAW; SPECIAL CIVIL ACTION; EMINENT DOMAIN; TAX DECLARATION; A GUIDE OR INDICATOR OF THE REASONABLE VALUE OF THE PROPERTY. C The acquisition of Agleham's riceland was not done by expropriation but through a negotiated sale. In the course of the negotiations, there was absolutely no allegation nor proof that the price of P80 per square meter was its fair market value in 1978, i.e., eleven (11) years ago. What the accused did was to prove the value of the land through fake tax declarations (Exhs. B, F, K), false certifications (Exhs. J, D and E) and a forged sworn statement on the current and fair market value of the real property (Exh. Z) submitted by the accused in support of the deed of sale. Because fraudulent documents were used, it may not be said that the State agreed to pay the price on the basis of its fairness, for the Government was in fact deceived concerning the reasonable value of the land. When Ocol testified in 1983 that P80 was a reasonable valuation for the Agleham's land, he did not clarify that was also its reasonable value in 1975, before real estate values in Pasig soared as a result of the implementation of the Mangahan Floodway Project. Hence, Ocol's testimony was insufficient to rebut the valuation in Agleham's genuine 1978 Tax Declaration No. 47895 that the fair valuation of the riceland then was only P5 per square meter. A Tax Declaration is a guide or indicator of the reasonable value of the property (EPZA vs. Dulay, 149 SCRA 305).

5. ID.; EVIDENCE; PARTIALITY; MAYBE PROVEN BY ATTENDANT CIRCUMSTANCES IN THE ABSENCE OF DIRECT EVIDENCE. C Partiality for Agleham/Gutierrez may be inferred from their having deliberately closed their eyes to the defects and irregularities of the transaction in his favor and their seeming neglect, if not deliberate omission, to check, the authenticity of the documents presented to them for approval. Since partiality is a mental state or predilection, in the absence of direct evidence, it may be proved by the attendant circumstances."

Doctrine of command responsibility in PH Govt.

EXECUTIVE ORDER NO. 226 
February 17, 1995

INSTITUTIONALIZATION OF THE DOCTRINE OF "COMMAND RESPONSIBILITY" IN ALL GOVERNMENT OFFICES, PARTICULARLY AT ALL LEVELS OF COMMAND IN THE PHILIPPINE NATIONAL POLICE AND OTHER LAW ENFORCEMENT AGENCIES.

WHEREAS, strict and effective management and control of an organization by the supervisor is critical in ensuring responsive delivery of services by the government, especially in police matters;

WHEREAS, a supervisor/commander is duty-bound and, as such, is expected to closely monitor, supervise, direct, coordinate, and control the overall activities of his subordinates within his area of jurisdiction, and can be held administratively accountable for neglect of duty in taking appropriate action to discipline his men; 

WHEREAS, in order to ensure a more effective, sustained, and successful campaign against erring government personnel, it is imperative that the doctrine of "command responsibility" be institutionalized and strictly applied in all government offices and at all levels of command in the PNP and other law enforcement agencies.

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me by law, do hereby order:

Sec. 1. Neglect of Duty Under the Doctrine of "Command Responsibility". - Any government official or supervisor, or officer of the Philippine National Police or that of any other law enforcement agency 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.

Sec. 2. Presumption of Knowledge. - A government official or supervisor, or PNP commander, is presumed to have knowledge of the commission of irregularities or criminal offenses in any of the following circumstances:

a. When the irregularities or illegal acts are widespread within his area of jurisdiction;

b. When the irregularities or illegal acts have been repeatedly or regularly committed within his area of responsibility; or

c. When members of his immediate staff or office personnel are involved. 

Sec. 3. Implementing Rules and Regulations. - The National Police Commission (NAPOLCOM) in coordination with the Department of Interior and Local Government (DILG) and the Civil Service Commission (CSC) shall promulgate the necessary rules and regulations of this Executive Order within thirty (30) days after the issuance thereof.

Sec. 4. Administrative Liability. - Any violation of this Executive Order by any government official, supervisor, officer of the PNP and that of any law enforcement agency shall be held administratively accountable for violation of existing laws, rules and regulations. 

Sec. 5. Effectivity. - This Executive Order shall take effect immediately.lawphi1.net

Done in the City of Manila this 17th day of February, in the year of our Lord, nineteen hundred and ninety-five.

Command responsibility

"x x x.

On the other hand, Atty. Inocentes seeks to distance himself from the events that transpired and the reprimand resulting therefrom by asserting that he was incorrectly punished for Atty. Camano’s acts when his mere participation in the fiasco was to refer complainant and his mother to Atty. Camano.

However, it is precisely because of such participation, consisting as it did of referring the complainant to his associate lawyer, that Atty. Inocentes may be held administratively liable by virtue of his associate’s unethical acts. His failure to exercise certain responsibilities over matters under the charge of his law firm is a blameworthy shortcoming.  The term “command responsibility,” as Atty. Inocentes suggests, has special meaning within the circle of men in uniform in the military; however, the principle does not abide solely therein.  It controls the very circumstance in which Atty. Inocentes found himself.

We are not unaware of the custom of practitioners in a law firm of assigning cases and even entire client accounts to associates or other partners with limited supervision, if at all.  This is especially true in the case of Attys. Inocentes and Camano who, from the records, both appear to be seasoned enough to be left alone in their work without requiring close supervision over each other’s conduct and work output.   However, let it not be said that law firm practitioners are given a free hand to assign cases to seasoned attorneys and thereafter conveniently forget about the case.  To do so would be a disservice to the profession, the integrity and advancement of which this Court must jealously protect. 

That the firm name under which the two attorneys labored was that of Oscar Inocentes and Associates Law Office does not automatically make Atty. Inocentes the default lawyer acting in a supervisory capacity over Atty. Camano.  It did, however, behoove Atty. Inocentes to exert ordinary diligence to find out what was going on in his law firm.  It placed in Atty. Inocentes the active responsibility to inquire further into the circumstances affecting the levy of complainant’s properties, irrespective of whether the same were in fact events which could possibly lead to administrative liability.  Moreover, as name practitioner of the law office, Atty. Inocentes is tasked with the responsibility to make reasonable efforts to ensure that all lawyers in the firm should act in conformity to the Code of Professional Responsibility.[22]    It is not without reason or consequence that Atty. Inocentes’s name is that which was used as the official designation of their law office.

With regard to the actual existence of Atty. Inocentes’s supervisory capacity over Atty. Camano’s activities, the IBP Investigating Commissioner based the same on his finding that Atty. Inocentes received periodic reports from Atty. Camano on the latter’s dealings with complainant.  This finding is the linchpin of Atty. Inocentes’s supervisory capacity over Atty. Camano and liability by virtue thereof. 

Law practitioners are acutely aware of the responsibilities that are naturally taken on by partners and supervisory lawyers over the lawyers and non-lawyers of the law office.    We have held that lawyers are administratively liable for the conduct of their employees in failing to timely file pleadings.[23]  In Rheem of the Philippines, Inc., et al. v. Zoilo R. Ferrer, et al.,[24] partners in a law office were admonished for the contemptuous language in a pleading submitted to court despite, and even due to, the fact that the pleading was not passed upon by any of the partners of the office.  We held therein that partners are duty bound to provide for efficacious control of court pleadings and other court papers that carry their names or the name of the law firm.[25] 

We now hold further that partners and practitioners who hold supervisory capacities are legally responsible to exert ordinary diligence in apprising themselves of the comings and goings of the cases handled by the persons over which they are exercising supervisory authority and in exerting necessary efforts to foreclose the occurrence of violations of the Code of Professional Responsibility by persons under their charge.   Nonetheless, the liability of the supervising lawyer in this regard is by no means equivalent to that of the recalcitrant lawyer.  The actual degree of control and supervision exercised by said supervising lawyer varies, inter alia, according to office practice, or the length of experience and competence of the lawyer supervised.  Such factors can be taken into account in ascertaining the proper penalty.  Certainly, a lawyer charged with the supervision of a fledgling attorney prone to rookie mistakes should bear greater responsibility for the culpable acts of the underling than one satisfied enough with the work and professional ethic of the associate so as to leave the latter mostly to his/her own devises.

While Atty. Camano’s irregular acts perhaps evince a need for greater supervision of his legal practice, there is no question that it has been Atty. Inocentes’ practice to allow wide discretion for Atty. Camano to practice on his own.  It does constitute indifference and neglect for Atty. Inocentes to fail to accord even a token attention to Atty. Camano’s conduct which could have brought the then impending problem to light.  But such is not equivalent to the proximate responsibility for Atty. Camano’s acts.  Moreover, it appears from the records that Atty. Inocentes is a former judge and a lawyer who, as of yet, is in good standing and it is the first time in which Atty. Inocentes has been made to answer vicariously for the misconduct of a person under his charge.  An admonition is appropriate under the circumstances.

        WHEREFORE, PREMISES CONSIDERED, the Petition is hereby GRANTED.  The Resolution dated 16 April 2004 is AFFIRMED in respect of the sanction meted out on Atty. Camano.  Atty. Inocentes is hereby ADMONISHED to monitor more closely the activities of his associates to make sure that the same are in consonance with the Code of Professional Responsibility with the WARNING that repetition of the same or similar omission will be dealt with more severely.

x x x."

See:

GEORGE C. SOLATAN,                       A.C. No. 6504

               Complainant,                           

                                                           Present:

                                                           PUNO, J.,

                                      Chairman,

         -  versus  -                                 AUSTRIA-MARTINEZ,

                                                           CALLEJO, SR.,

                                                           TINGA, and

           CHICO-NAZARIO, JJ.

                   

       

ATTYS. OSCAR A. INOCENTES                   Promulgated:

and JOSE C. CAMANO,

               Respondents.                       August 9, 2005

x-------------------------------------------------------------------x

Duty of suspended lawyer - GR 8235.pdf

See - 8235.pdf





"x x x.

When a lawyer agrees to take up a client's cause, he makes a commitment to exercise due diligence in protecting the latter's rights. Once a lawyer's services are engaged, "he is duty bound to serve his client with competence, and to attend to his client's cause with diligence, care and devotion regardless of whether he accepts it for a fee or for free. He owes fidelity to such cause and must always be mindful of the trust and confidence reposed on him."25 A lawyer's acceptance to take up a case "impliedly stipulates [that he will] carry it to its termination, that is, until the case becomes final and executory. " 26



Atty. Baterina's duty to his clients did not automatically cease with his suspension. At the very least, such suspension gave him a concomitant responsibility to inform his clients that he would be unable to attend to their case and advise them to retain another counsel. 



A lawyer - even one suspended from practicing the profession - owes it to his client to not "sit idly by and leave the rights of his client in a state of uncertainty." 27 The client "should never be left groping in the dark" and instead must be "adequately and fully informed about the developments in his case."28 



Atty. Baterina practically abandoned this duty when he allowed the proceedings to run its course without any effort to safeguard his clients' welfare in_ the meantime. His failure to file the required pleadings on his clients' behalf constitutes gross negligence in violation of the Code of Professional Responsibility29 and renders him subject to disciplinary action. The penalties for a lawyer's failure to file the required brief or pleading range from warning, reprimand, fine, suspension, or in grave cases,

disbarment.J 1



Further, Atty. Baterina's reckless disregard for orders and directives of the courts is unbecoming of a member of the Bar. His conduct has shown that he has little respect for rules, court processes, and even for the Court's disciplinary authority. Not only did he fail to follow the trial court's orders in his clients' case, he even disregarded court orders in his own disciplinary proceedings.

x x x."

Competence and diligence - GR 8235.pdf

See - 8235.pdf





"x x x.

The Code of Professional Responsibility governing the conduct of lawyers states:



CANON 18 - A LAWYER SHALL SERVE HIS CLIENT WITH COMPETENCE AND DILIGENCE. 

xx xx 



RULE 18.03 - A lawyer shall not neglect a legal matter entrusted_ to him, and his negligence in connection therewith shall render him liable. 



RULE 18.04 - A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the client's request for information. 

x x x."

Good faith; operative fact doctrine - GR 209287.pdf

See - 209287.pdf





"x x x.

It is equally important to stress that the ascertainment of good faith, or the lack of it, and the determination of whether or not due diligence and prudence were exercised, are questions of fact.49 The want of good faith is thus better determined by tribunals other than this Court, which is not a trier of facts.50 For sure, the Court cannot jettison the presumption of good faith in this or in any other case. The presumption is a matter of law. It has had a long history. Indeed, good faith has long been established as a legal principle even in the heydays of the Roman Empire.51 In Soriano v. Marcelo,

52 citing Collantes v. Marcelo,53 the Court emphasizes the necessity of the presumption of good faith, thus:



Well-settled is the rule that good faith is always presumed and the Chapter on Human Relations of the Civil Code directs every person, inter alia, to observe good faith which springs from the fountain of good conscience. Specifically, a public officer is presumed to have acted in good faith in the performance of his duties. Mistakes committed by a public officer are not actionable absent any clear showing that they were motivated by malice or gross negligence amounting to bad faith. "Bad faith" does not simply connote bad moral judgment or negligence. There must be some dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a sworn duty through some motive or intent or ill will. It partakes of the nature of fraud. It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes. 



The law also requires that the public officer’s action caused undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. x x x



 The Court has further explained in Philippine Agila Satellite, Inc. v. Trinidad-Lichauco: 54



We do not doubt the existence of the presumptions of “good faith” or “regular performance of official duty”, yet these presumptions are disputable and may be contradicted and overcome by other evidence. Many civil actions are oriented towards overcoming any number of these presumptions, and a cause of action can certainly be geared towards such effect. The very purpose of trial is to allow a party to present evidence to overcome the disputable presumptions involved. Otherwise, if trial is deemed irrelevant or unnecessary, owing to the perceived indisputability of the presumptions, the judicial exercise would be relegated to a mere ascertainment of what presumptions apply in a given case, nothing more. 



Consequently, the entire Rules of Court is rendered as excess verbiage, save perhaps for the provisions laying down the legal presumptions. Relevantly, the authors, proponents and implementors of the DAP, being public officers, further enjoy the presumption of regularity in the performance of their functions. This presumption is necessary because they are clothed with some part of the sovereignty of the State, and because they act in the interest of the public as required by law.55 However, the

presumption may be disputed.56 At any rate, the Court has agreed during its deliberations to extend to

the proponents and implementors of the DAP the benefit of the doctrine of operative fact. This is because they had nothing to do at all with the adoption of the invalid acts and practices.



x x x."

Constitution - GR 209287.pdf

See - 209287.pdf





"x x x.

In this connection, the respondents must always be reminded that the Constitution is the basic law to which all laws must conform. No act that conflicts with the Constitution can be valid.24 In Mutuc v. Commission on Elections, 25 therefore, we have emphasized the importance of recognizing and bowing to the supremacy of the Constitution:



x x x The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the

discharge of the functions with which it is [sic] entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, whether substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law.



Also, in Biraogo v. Philippine Truth Commission of 2010,26 we have reminded that: –



The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental powers of government are established, limited and defined, and by which these powers are distributed among the several departments. The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be simply made to sway and accommodate the call of situations and much more tailor itself to the whims and caprices of government and the people who run it.27



x x x."

Savings - GR 209287.pdf

See - 209287.pdf





"x x x.

The decision of the Court has underscored that the exercise of the power to augment shall be strictly construed by virtue of its being an exception to the general rule that the funding of PAPs shall be limited to the amount fixed by Congress for the purpose.14 Necessarily, savings, their utilization and their management will also be strictly construed against expanding the scope of the power to augment.15 Such a strict interpretation is essential in order to keep the Executive and other budget implementors within the limits of their prerogatives during budget execution, and to prevent them from unduly transgressing Congress’ power of the purse.16 Hence, regardless of the perceived beneficial purposes of the DAP, and regardless of whether the DAP is viewed as an effective tool of stimulating the national economy, the acts and practices under the DAP and the relevant provisions of NBC No. 541 cited in the Decision should remain illegal and unconstitutional as long as the funds used to finance the projects mentioned therein are sourced from savings that deviated from the relevant provisions of the GAA, as well as the limitation on the power to augment under Section 25(5), Article VI of the Constitution. In a society governed by laws, even the best intentions must come within the parameters defined and set by the Constitution and the law. Laudable purposes must be carried out through legal methods.17

x x x."

Judicial review - GR 209287.pdf

See - 209287.pdf





"x x x.

xxx. Indeed, the interpretation of the GAA and its definition of savings is a foremost judicial function. This is because the power of judicial review vested in the Court is exclusive. As clarified in Endencia and Jugo v. David:

12



Under our system of constitutional government, the Legislative department is assigned the power to make and enact laws. The Executive department is charged with the execution of carrying out of the provisions of said laws. But the interpretation and application of said laws belong exclusively to the Judicial department. And this authority to interpret and apply the laws extends to the Constitution. Before the courts can determine whether a law is constitutional or not, it will have to interpret and ascertain the meaning not only of said law, but also of the pertinent portion of the Constitution in order to decide whether there is a conflict between the two, because if there is, then the law will have to give way and has to be declared invalid and unconstitutional. 



x x x x



We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the

interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative department. If the Legislature may declare what a law means, or what a specific portion of the

Constitution means, especially after the courts have in actual case ascertain its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decisions. Under such a system, a final court determination of a case based on a judicial interpretation of the law of the Constitution may be undermined or even annulled by a

subsequent and different interpretation of the law or of the Constitution by the Legislative department. That would be neither wise nor desirable, besides being clearly violative of the fundamental,

principles of our constitutional system of government, particularly those governing the separation of powers.

13



The respondents cannot also ignore the glaring fact that the petitions primarily and significantly alleged grave abuse of discretion on the part of the Executive in the implementation of the DAP. The resolution of the petitions thus demanded the exercise by the Court of its aforedescribed power of judicial review as mandated by the Constitution.



x x x."

Republic Act No. 10650 - “Open Distance Learning Act”

See - Republic Act No. 10650 | Official Gazette of the Republic of the Philippines

[REPUBLIC ACT NO. 10650]

AN ACT EXPANDING ACCESS TO EDUCATIONAL SERVICES BY INSTITUTIONALIZING OPEN DISTANCE LEARNING IN LEVELS OF TERTIARY EDUCATION AND APPROPRIATING FUNDS THEREFOR

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. Short Title. – This Act shall be known as the “Open Distance Learning Act”.

SEC. 2. Declaration of Policy. – It is hereby declared the policy of the State to expand and further democratize access to quality tertiary education through the promotion and application of open learning as a philosophy of access to educational services, and the use of distance education as an appropriate, efficient and effective system of delivering quality higher and technical educational services in the country.

SEC. 3. Definition of Terms. – As used in this Act:

(a) Distance education refers to a mode of learning in which students and teachers are physically separated from each other. It is student-centered, guided independent study, making use of well-studied teaching and learning pedagogies to deliver well-designed learning materials in various media. It is also sometimes described as flexible learning and distributed learning;

(b) Higher education refers to the higher learning level after high school offering baccalaureate, graduate or post-graduate programs;

(c) Higher education degree programs refer to specific courses of study in the higher level of the education system leading to a bachelor’s, master’s or doctoral degree;

(d) Higher education institution (HEI) refers to an institution of higher learning which primarily offers degree-granting programs duly recognized by the Commission on Higher Education (CHED) and leading to the conferment of a diploma;

(e) Open Distance Learning (ODL) refers to the merger of two (2) concepts, that of open learning and distance education. It is a system which combines the methodology of distance education with the concepts of open learning and flexible learning;

(f) Open learning refers to a philosophy of learning that is based on flexibility of access for equity in education, an educational system accessible to every individual with minimal restrictions and emphasizing the flexibility of the system to eradicate problems caused by barriers like age, geographical location, time constraints and economic situation;

(g) Open university/college/institution refers to a degree-granting HEI recognized by the CHED which has at least a Level III accreditation in the programs offered in the conventional classroom or traditional mode and which employs operational procedures and strategies of an open learning institution;

(h) Post-secondary school refers to an institution that offers nondegree technical-vocational programs accredited by the Technical Education and Skills Development Authority (TESDA);

(i) Technical-vocational programs refer to post-secondary certificate courses, officially recognized as nondegree programs aimed at preparing technicians, paraprofessionals and other categories of middle-level workers by providing them with a broad range of general education, theoretical, scientific and technological studies, and related job skills training; and

(j) Tertiary education refers to higher education degree programs, as well as post-secondary technical-vocational programs.

SEC. 4. Coverage. – This Act shall apply to public and private higher education institutions (HEIs) and post-secondary schools in the Philippines which have existing ODL programs, and to other HEIs and post-secondary schools which shall later be authorized as qualified implementers of ODL programs.

SEC. 5. Institutionalization of Open Distance Learning. – ODL is hereby institutionalized in accordance with the provisions of this Act. The ODL programs shall conform to the guidelines set by the CHED and the TESDA for both the conventional classroom or traditional mode and the nonconventional mode.

SEC. 6. Guiding Principles for ODL Courses or Subjects. – All courses or subjects offered in the ODL mode shall adhere to the following principles:

(a) Learner Centeredness – ODL programs shall focus on the needs of the learner and the goal of facilitating independent learning;

(b) Quality and Relevant Programs – ODL programs shall be equivalent in challenges and depth to conventional classroom or traditional programs in nonconventional delivery;

(c) Transparency to Guide Informed Choice – ODL implementers shall make information about their programs, particularly on the curriculum and delivery system, instructional materials development, delivery mode/strategies, student support services, and other relevant information available to accrediting bodies, academic peers, regulators and students. Updated information shall he made accessible through such media as the internet;

(d) Peer Review – A review by experts in ODL to determine the acceptability of the course or subject shall be institutionalized following the criteria set by the CHED and/or the TESDA, as applicable;

(e) Public Responsibility and Accountability – Implementers shall heed the public impact of ODL programs and shall always exercise due diligence in avoiding harm to program stakeholders, especially students. Consumer protection, in particular, shall be a priority because of the high value that Filipinos put on education; and

(f) Quality and Continuous Improvement – An HEI or post-secondary school shall embed in its program framework the proactive needs assessment of students and stakeholders in terms of the ODL program planning, implementation and evaluation. The interaction of students’ needs, interests and perceptions, faculty interests and skills/technology available and Filipino culture should be carefully examined, explored and monitored to continuously improve all aspects of development and delivery.

SEC. 7. Admission and Other Academic Policies and Requirements. – Admission and other academic policies and requirements in all HEIs and post-secondary schools offering ODL programs shall conform to the minimum policies, standards and requirements set by the CHED and/or the TESDA, as applicable.

SEC. 8. Program, Curriculum and Course Development Offerings and Requirements. – The curricular offerings using ODL mode shall ensure that the learning outcomes are clearly articulated in terms of competencies, skills and behavioral attributes and conform to the respective policies, standards and guidelines for ODL set by the CHED and/or the TESDA, as applicable.

There shall be a defined set of courses or subjects and/or examinations, and/or special projects and activities, the completion of which shall be required for graduation from the higher education degree program or technical-vocational program, and which shall be equivalent to those under the conventional mode of instruction. The following shall also be considered:

(a) The place, pace, and mode of study of the student shall be at the option and convenience of the student within the time frame as may be prescribed by the learning institution: Provided, That the content, context and conduct of examination shall be determined by the HEIs or post-secondary schools offering the ODL program;

(b) The concerned HEIs or post-secondary schools shall formulate and implement a mechanism to monitor the academic progress of the students;

(c) The curricular offerings using ODL shall conform to respective policies, standards and guidelines for ODL of the CHED and/or the TESDA, as applicable;

(d) Practicum or on-the-job trainings shall be observed for courses that require the same;

(e) Completion of all the requirements for the academic program shall be evidenced by the award of the appropriate academic degree or certificate; and

(f) For the practice of the profession for which one has acquired the necessary academic credentials through ODL, the existing requirement of the Professional Regulation Commission or other relevant government agencies of passing a licensure examination for programs offered in the conventional classroom or traditional mode, or technical-vocational programs shall also apply to graduates of ODL programs.

SEC. 9. Mode of Delivery. – The ODL programs may be delivered using information and communications technology and other approaches, such as the following:

(a) Print – textbooks, study guides, workbooks, course syllabi, correspondence feedback and other print formats;

(b) Audio-Visual – radio, audio cassettes, slides, film, videotapes, television, telephone, fax, audio-conferencing and video-conferencing;

(c) Electronic/Computer Technology and Virtual Classrooms – internet, CD-ROM, electronic mail, e-bulletin boards, podcasts, m-learning, i-lectures, e-learning or online learning management systems; and

(d) Face-to-Face Sessions – conducted in learning and study centers.

SEC. 10. Support to ODL Programs. – The CHED and the TESDA shall provide support to HEIs and post-secondary schools in developing and providing high quality programs and offerings in ODL education. This support shall include the following:

(a) Training of qualified teachers, providers, and other professionals;

(b) Relevant curriculum, courseware, and program development;

(c) Development of appropriate learning materials;

(d) Cyber infrastructure planning, resource sourcing, and implementation;

(e) School operations and management planning and development, including support services, learning management systems, instructional design and development, and research on emerging technologies; and

(f) Formal linkages and networking with institutions which may serve as learning or testing centers.

SEC. 11. Support to Students. – Any student enrolled in ODL programs under this Act shall have access to all privileges, opportunities and entitlements that a student similarly situated under the conventional system of instruction may have access to, including the availment of scholarships, grants-in-aid, and loans from the government or government-administered funding sources. Specifically, HEIs and post-secondary schools engaged in ODL programs shall be tasked to perform the following student support services:

(a) Provide clear admission policies and procedures for applicants;

(b) Maintain faculty-student dialogue and interactivity through virtual classrooms linked electronically or through established learning centers, or both, whichever may be feasible, to ensure greater knowledge sharing, access to counseling and other support services;

(c) Provide for an efficient and reliable communication system, feedback mechanism, especially on learners’ academic progress, and multimedia support;

(d) Show evidence of regular monitoring of learners’ progress; and

(e) Provide a wide range of relevant, updated and accessible learning resources that are easily accessible to students.

SEC. 12. Role of the University of the Philippines Open University. – The University of the Philippines Open University, hereinafter referred to as the UPOU, shall assist and provide expertise to the CHED and the TESDA in the performance of its functions pursuant to Section 14 of this Act. As such, it shall:

(a) Provide leadership in the development of ODL in the country and in the appropriate use of information and communications technologies in support of quality tertiary education;

(b) Promote best practices in ODL in the Philippines;

(c) Share knowledge through informed and innovative research and other development activities related to ODL through its exemplar policies, programs, materials, learning management systems, guidelines and offerings;

(d) Provide technical assistance to the CHED and the TESDA in matters relating to ODL, particularly in the development of basic curricular design and formulation of national policies, standards and guidelines for ODL programs and institutions in the country;

(e) Design model curricular programs which shall serve as prototype programs upon which similar programs to be offered by other HEIs and post-secondary schools in the country shall be patterned after;

(f) Develop and promote appropriate information and communications technology to facilitate quality ODL programs in the country;

(g) Design quality learning materials and objects, both in print and multimedia formats, for higher education and post-secondary instruction in the country;

(h) Make instructional materials for ODL programs accessible to the public through collaborative arrangements and other appropriate mechanisms;

(i) Assist other interested educational institutions in developing their ODL programs, courses, and materials for specific learner groups or the public at large;

(j) Design and implement a continuing program to develop high level expertise in the fields of ODL in the Philippines through quality higher education degree programs and technical-vocational programs through either or both ODL and face-to-face modes of instruction and training; and

(k) Help capacitate ODL teachers and practitioners through capacity building and professionalization programs.

SEC. 13. Zonal ODL Centers. – Zonal ODL centers shall be established, one each in Metro Manila, Luzon, Visayas and Mindanao, and eventually one in each region, to assist the CHED and the TESDA in performing its tasks. The zonal ODL centers shall take charge of the training of teachers for ODL programs.

SEC. 14. Roles of the CHED and the TESDA. – The CHED and the TESDA shall be respective regulators of HEIs and post-secondary schools involved in ODL programs. As such, they shall:

(a) Formulate, promulgate, disseminate and implement the necessary policies, standards, guidelines, rules and regulations for the effective implementation of ODL in the country;

(b) Develop strategies to improve the quality of ODL programs and implement a system of quality control for ODL in the country;

(c) Monitor and evaluate existing ODL programs and effect the continuation or closure of programs in accordance with the provisions of Republic Act No. 7722 or the “Higher Education Act of 1994″, the Manual of Regulations for Private Higher Education (MORPHE) and other issuances of the CHED and/or the TESDA, as applicable;

(d) Review and approve or disapprove proposals from HEIs and post-secondary schools for the implementation of new ODL programs; and

(e) Recommend to the Department of Budget and Management (DBM) the budget for ODL programs of qualified state HEIs and post-secondary schools based on the monitoring and evaluation results of the CHED and the TESDA, respectively.

SEC. 15. Roles of Broadcast Media and Telecommunications Networks. – Broadcast media and telecommunications networks are encouraged to provide as much assistance and cooperation to HEIs and post-secondary schools offering ODL programs. Such assistance may include, but not necessarily be limited to, the transmission of learning materials for formal and non-formal courses to learners not only within the Philippines, but also outside the country.

SEC. 16. Independent Evaluation. – In aid of better policy making, the CHED and the TESDA shall enter into an agreement with reputable research institutions to conduct an independent evaluation of the state, regulatory governance, quality, concerns, challenges and prospects of ODL programs in the Philippines. It shall survey a diverse group of HEIs and post-secondary schools with respect to size, mission and geographic distribution.

SEC. 17. Interim and Final Report. – The agreement under Section 16 of this Act shall require that the reputable research institutions submit to the CHED Chairperson, the TESDA Director General, the Senate Committee on Education, Culture and the Arts, and the House Committee on Higher and Technical Education the following:

(a) An interim report regarding the evaluation, as provided herein, not later than six (6) months after the date of the enactment of this Act; and

b) A final report regarding such evaluation not later than one (1) year after the date of the enactment of this Act.

SEC. 18. Tax Exemptions. – Any donation, contribution, bequest and grant, in cash, materials, and services which may be made by individuals and organizations, including private entities, which shall, provide appropriate materials, time and delivery support services for the promotion of ODL in partnership with HEIs delivering academic degree programs and post-secondary schools delivering technical-vocational programs through ODL, shall be exempt from the donor’s tax and the same shall be considered as allowable deduction from the gross income in the computation of the income tax of the donor in accordance with the provisions of the National Internal Revenue Code of 1997, as amended.

SEC. 19. Implementing Rules and Regulations. – The CHED, through its Technical Panel for Distance Education, the TESDA, and the UPOU, in consultation with relevant stakeholders in higher degree and post-secondary education, are hereby mandated to formulate the rules and regulations to implement this Act within a period of ninety (90) days from the effectivity thereof.

SEC. 20. Appropriations. – The amount needed for the initial implementation of this Act shall be charged against the current year’s appropriations of the CHED, the TESDA, and the state universities and colleges which have existing ODL programs. Thereafter, such sums as may be necessary for the continued implementation of this Act shall be included in the annual General Appropriations Act.

SEC. 21. Separability Clause. – If any provision of this Act or any part hereof be declared unconstitutional or invalid, the same shall not affect the validity of the other provisions of this Act.

SEC. 22. Repealing Clause. – All laws, decrees, orders, ruled and regulations or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended or modified accordingly.

SEC. 23. Effectivity. – This act shall take effect fifteen (15) days after its publication in the Official Gazette or in a newspaper of general circulation.

Approved,

(Sgd.) FELICIANO BELMONTE JR.Speaker of the House of Representatives

(Sgd.) FRANKLIN M. DRILONPresident of the Senate

This Act which is a consolidation Senate Bill No. 2274 and House Bill No. 4553 was finally passed by the Senate and the House of Representatives on September 23, 2014 and September 24, 2014, respectively.

(Sgd.) MARILYN B. BARUA-YAPSecretary General House of Representatives

(Sgd.) OSCAR G. YABESSecretary of the Senate

Approved: DEC 09 2014

(Sgd.) BENIGNO S. AQUINO III
President of the Philippines

RESOURCES

• [PDF] Republic Act No. 10650, December 9, 2014