CRIMES AGAINST INTERNATIONAL HUMANITARIAN LAW, GENOCIDE AND OTHER CRIMES AGAINST HUMANITY

REPUBLIC ACT NO. 9851

AN ACT DEFINING AND PENALIZING CRIMES AGAINST INTERNATIONAL HUMANITARIAN LAW, GENOCIDE AND OTHER CRIMES AGAINST HUMANITY, ORGANIZING JURISDICTION, DESIGNATING SPECIAL COURTS, AND FOR RELATED PURPOSES

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

CHAPTER I
INTRODUCTORY PROVISIONS

Section 1. Short Title. - This Act shall be known as the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity".

Section 2. Declaration of Principles and State Policies. -

(a) The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to a policy of peace, equality, justice, freedom, cooperation and amity with all nations.

(b) The state values the dignity of every human person and guarantees full respect for human rights, including the rights of indigenous cultural communities and other vulnerable groups, such as women and children;

(c) It shall be the responsibility of the State and all other sectors concerned to resolved armed conflict in order to promote the goal of "Children as Zones of Peace";

(d) The state adopts the generally accepted principles of international law, including the Hague Conventions of 1907, the Geneva Conventions on the protection of victims of war and international humanitarian law, as part of the law our nation;

(e) The most serious crimes of concern to the international community as a whole must not go unpunished and their effective prosecution must be ensured by taking measures at the national level, in order to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes, it being the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes;

(f) The State shall guarantee persons suspected or accused of having committed grave crimes under international law all rights necessary to ensure that their trial will be fair and prompt in strict accordance with national and international law and standards for fair trial, It shall also protect victims, witnesses and their families, and provide appropriate redress to victims and their families, It shall ensure that the legal systems in place provide accessible and gender-sensitive avenues of redress for victims of armed conflict, and

(g)The State recognizes that the application of the provisions of this Act shall not affect the legal status of the parties to a conflict, nor give an implied recognition of the status of belligerency

CHAPTER II
DEFINITION OF TERMS

Section 3. For purposes of this Act, the term:

(a) "Apartheid' means inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one racial group or groups and committed with the intention of maintaining that regime

(b) "Arbitrary deportation or forcible transfer of population" means forced displacement of the persons concerned by expultion by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under domestic or international law.

(c) "Armed conflict" means any use of force or armed violence between States or a protracted armed violence between governmental authorities and organized armed groups or between such groups within that State: Provided, That such force or armed violence gives rise, or may give rise, to a situation to which the Geneva Conventions of 12 August 1949, including their common Article 3, apply. Armed conflict may be international, that is, between two (2) or more States, including belligerent occupation; or non-international, that is, between governmental authorities and organized armed groups or between such groups within a state. It does not cover internal disturbances or tensions such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

(d) "Armed forces" means all organized armed forces, groups and units that belong to a party to an armed conflict which are under a command responsible to that party for the conduct of its subordinates. Such armed forces shall be subject to an internal disciplinary system which enforces compliance with International Humanitarian Law

(e) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in Section 6 of this Act against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.

(f) "Effective command and control" or " effective authority and control" means having the material ability to prevent and punish the commission of offenses by subordinates.

(g) "Enforced or involuntary disappearance of persons" means the arrest, detention, or abduction of persons by, or with the authorization support or acquiescence of, a State or a political organization followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing from the protection of the law for a prolonged period of time

(h) "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.

(i) "Extermination" means the international infliction of conditions of life, inter alia, the deprivation of access to food and medicine, calculated to bring about the destruction of a part of a population.

(j) " Forced pregnancy" means the unlawful confinement of a women to be forcibly made pregnant, with the intent of affecting the ethnic composition of any population carrying out other grave violations of international law.

(k) "Hors de Combat" means a person who:

(1) is in the power of an adverse party;

(2) has clearly expressed an intention to surrender; or

(3) has been rendered unconscious or otherwise incapacitated by wounds or sickness and therefore is incapable of defending himself: Provided, that in any of these cases, the person form any hostile act and does not attempt to escape.

(l) "Military necessity" means the necessity of employing measures which are indispensable to achieve a legitimate aim of the conflict and are not otherwise prohibited by International Humanitarian Law

(m) "Non-defended locality" means a locality that fulfills the following conditions:

(1) all combatants, as well as mobile weapons and mobile military equipment, must have been evacuated;

(2) no hostile use of fixed military installations or establishments must have been made;

(3) no acts of hostility must have been committed by the authorities or by the population; and

(4) no activities in support of military operations, must have been undertaken.

(n) "No quarter will be given' means refusing to spare the life of anybody, even of persons manifestly unable to defend themselves or who clearly express their intention to surrender.

(o) "Perfidy" means acts which invite the confidence of an adversary to lead him/her to believe he/she is entitled to, or is obliged to accord, protection under the rules of International Humanitarian Law, with the intent to betray that confidence, including but not limited to:

(1) feigning an intent to negotiate under a flag of truce;

(2) feigning surrender;

(3) feigning incapacitation by wounds or sickness;

(4) feigning civilian or noncombatant status; and

(5) feigning protective status by use of signs, emblems or uniforms of the United Nations or of a neutral or other State not party to the conflict.

(p) "Persecution" means the international and severe deprivation of fundamental rights contrary to international law by reason of identity of the group or collectivity.

(q) "Protect person" in an armed conflict means:

(1) a person wounded, sick or shipwrecked, whether civilian or military;

(2) a prisoner of war or any person deprived of liberty for reasons related to an armed conflict;

(3) a civilian or any person not taking a direct part or having ceased to take part in the hostilities in the power of the adverse party;

(4) a person who, before the beginning of hostilities, was considered a stateless person or refugee under the relevant international instruments accepted by the parties to the conflict concerned or under the national legislation of the state of refuge or state of residence;

(5) a member of the medical personnel assigned exclusively to medical purposes or to the administration of medical units or to the operation of or administration of medical transports; or

(6) a member of the religious personnel who is exclusively engaged in the work of their ministry and attached to the armed forces of a party to the conflict, its medical units or medical transports, or non-denominational, noncombatant military personnel carrying out functions similar to religious personnel.

(r) " Superior" means:

(1) a military commander or a person effectively acting as a military commander; or

(2) any other superior, in as much as the crimes arose from activities within the effective authority and control of that superior.

(s) "Torture" means the intentional infliction of severe pain or suffering, whether physical, mental, or psychological, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.

(t) "Works and installations containing dangerous forces" means works and installations the attack of which may cause the release of dangerous forces and consequent severe losses among the civilian population, namely: dams, dikes, and nuclear, electrical generation stations.

CHAPTER III
CRIMES AGAINST INTERNATIONAL HUMANITARIAN LAW,
GENOCIDE AND OTHER CRIMES AGAINST HUMANITY

Section 4. War Crimes. - For the purpose of this Act, "war crimes" or "crimes against Interntional Human Humanitarian Law" means:

(a) In case of an international armed conflict , grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under provisions of the relevant Geneva Convention:

(1) Willful killing;

(2) Torture or inhuman treatment, including biological experiments;

(3) Willfully causing great suffering, or serious injury to body or health;

(4) Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly;

(5) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(6) Arbitrary deportation or forcible transfer of population or unlawful confinement;

(7) Taking of hostages;

(8) Compelling a prisoner a prisoner of war or other protected person to serve in the forces of a hostile power; and

(9) Unjustifiable delay in the repatriation of prisoners of war or other protected persons.

(b) In case of a non-international armed conflict, serious violations of common Article 3 to the four (4) Geneva Conventions of 12 August 1949, namely , any of the following acts committed against persons taking no active part in the hostilities, including member of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause;

(1) Violence to life and person, in particular, willful killings, mutilation, cruel treatment and torture;

(2) Committing outrages upon personal dignity, in particular, humiliating and degrading treatment;

(3) Taking of hostages; and

(4) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

(c) Other serious violations of the laws and customs applicable in armed conflict, within the established framework of international law, namely:

(1) Internationally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(2) Intentionally directing attacks against civilian objects, that is, object which are not military objectives;

(3) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions or Additional Protocol III in conformity with intentional law;

(4) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as ling as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(5) Launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be excessive in relation to the concrete and direct military advantage anticipated;

(6) Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, and causing death or serious injury to body or health .

(7) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives, or making non-defended localities or demilitarized zones the object of attack;

(8) Killing or wounding a person in the knowledge that he/she is hors de combat, including a combatant who, having laid down his/her arms or no longer having means of defense, has surrendered at discretion;

(9) Making improper use of a flag of truce, of the flag or the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions or other protective signs under International Humanitarian Law, resulting in death, serious personal injury or capture;

(10) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives. In case of doubt whether such building or place has been used to make an effective contribution to military action, it shall be presumed not to be so used;

(11) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind, or to removal of tissue or organs for transplantation, which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his/her interest, and which cause death to or seriously endanger the health of such person or persons;

(12) Killing, wounding or capturing an adversary by resort to perfidy;

(13) Declaring that no quarter will be given;

(14) Destroying or seizing the enemy's property unless such destruction or seizure is imperatively demanded by the necessities of war;

(15) Pillaging a town or place, even when taken by assault;

(16) Ordering the displacements of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;

(17) Transferring, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

(18) Commiting outrages upon personal dignity, in particular, humiliating and degrading treatments;

(19) Commiting rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions or a serious violation of common Article 3 to the Geneva Convensions;

(20) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

(21) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indespensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions and their Additional Protocols;

(22) In an international armed conflict, compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;

(23) In an international armed conflict, declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

(24) Commiting any of the following acts:

(i) Conscripting, enlisting or recruiting children under the age of fifteen (15) years into the national armed forces;

(ii) Conscripting, enlisting or recruiting children under the age of eighteen (18) years into an armed force or group other than the national armed forces; and

(iii) Using children under the age of eighteen (18) years to participate actively in hostilities; and

(25) Employing means of warfare which are prohibited under international law, such as:

(i) Poison or poisoned weapons;

(ii) Asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(iii) Bullets which expand or flatten easily in the human body, such as bullets with hard envelopes which do not entirely cover the core or are pierced with incisions; and

(iv) Weapons, projectiles and material and methods of warfare which are of the nature to cause superfluous injury or unecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict.

Any person found guilty of commiting any of the acts specified herein shall suffer the penalty provided under Section 7 of this Act.

Section 5. Genocide - (a) For the purpose of this Act, "genocide" means any of the following acts with intent to destroy, in whole or in part, a national, ethnic, racial, religious, social or any other similar stable and permanent group as such:

(1) Killing members of the group;

(2) Causing serious bodily or mental harm to members of the group;

(3) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(4) Imposing measures intended to prevent births within the group; and

(5) Forcibly transferring children of the group to another group.

(b) It shall be unlawful for any person to directly and publicly incite others to commit genocide.

Any person found guilty of committing any of the acts specified in paragraphs (a) and (b) of this section shall suffer the penalty provided under Section 7 of this Act.

Section 6. Other Crimes Against Humanity. - For the purpose of this act, "other crimes against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Willful killing;

(b) Extermination;

(c) Enslavement;

(d) Arbitrary deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime defined in this Act;

(i) Enforced or involuntary disappearance of persons;

(j) Apartheid; and

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Any person found guilty of committing any of the acts specified herein shall suffer the penalty provided under Section 7 of this Act.

CHAPTER IV
PENAL PROVISIONS

Section 7. Penalties. - Any person found guilty of committing any of the acts provided under Sections 4, 5 and 6 of this Act shall suffer the penalty of reclusion temporal in its medium to maximum period and a fine ranging from One hundred thousand pesos (Php 100,000.00) to Five hundred thousand pesos (Php 500,000.00).

When justified by the extreme gravity of the crime, especially where the commision of any of the crimes specified herein results in death or serious physical injury, or constitutes rape, and considering the individual circumstances of the accused, the penalty of reclusion perpetua and a fine ranging from Five hundred thousand pesos (Php 500,000.00) to One million pesos (Php 1,000,000.00) shall be imposed.

Any person found guilty of inciting others to commit genocide referred to in Section 5(b) of this Act shall suffer the penalty of prision mayor in its minimum period and a fine ranging from Ten thousand pesos (Php 10,000.00) to Twenty thousand pesos (Php 20,000.00).

In addition, the court shall order the forfeiture of proceeds, property and assets derived, directly or indirectly, from that crime, without prejudice to the rights of bona fide third (3rd) parties. The court shall also impose the corresponding accessory penalties under the Revised Penal Code, especially where the offender is a public officer.

CHAPTER V
SOME PRINCIPLES OF CRIMINAL LIABILITY

Section 8. Individual Criminal Responsibilities. - (a) In addition to existing provisions in Philippine law on principles of criminal responsibility, a person shall be criminally liable as principal for a crime defined and penalized in this Act if he/she:

(1) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(2) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(3) In any other way contributes to the commission or attempted commission of such a crime by a group of person acting with a common purpose. Such contribution shall be intentional and shall either:

(i) be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime defined in this Act; or

(ii) be made in the knowledge of the intention of the group to commit the crime.

(b) A person shall be criminally liable as accomplice for facilitating the commission of a crime defined and penalized in this Act if he/she aids, abets or otherwise assists in its commission or attempted commission, including providing the means for its commission.

(c) A person shall be criminally liable for a crime defined and penalized in this Act if he/she attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intention. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Act for the attempt to commit the same if he/she completely and voluntarily gave up the criminal purpose.

Section 9. Irrelevance of Official Capacity. - This Act shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Act, nor shall it, in and of itself, constitute a ground for reduction of sentence. However:

(a) Immunities or special procedural rules that may be attached to the official capacity of a person under Philippine law other than the established constitutional immunity from suit of the Philippine President during his/her tenure, shall not bar the court from exercising jurisdiction over such a person; and

(b) Immunities that may be attached to the official capacity of a person under international law may limit the application of this Act, nut only within the bounds established under international law.

Section 10. Responsibility of Superiors. - In addition to other grounds of criminal responsibility for crimes defined and penalized under this Act, a superior shall be criminally responsible as a principal for such crimes committed by subordinates under his/her effective command and control, or effective authority and control as the case may be, as a result of his/her failure to properly exercise control over such subordinates, where:

(a) That superior either knew or, owing to the circumstances at the time, should have known that the subordinates were committing or about to commit such crimes;

(b) That superior failed to take all necessary and reasonable measures within his/her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Section 11. Non-prescription. - The crimes defined and penalized under this Act, their prosecution, and the execution of sentences imposed on their account, shall not be subject to any prescription.

Section 12. Orders from a Superior. - The fact that a crime defined and penalized under this Act has been committed by a person pursuant to an order of a government or a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless all of the following elements occur:

(a) The person was under a legal obligation to obey orders of the government or the superior in question;

(b) The person did not know that the order was unlawful; and

(c) The order was not manifestly unlawful.

For the purposes of this section, orders to commit genocide or other crimes against humanity are manifestly unlawful.

CHAPTER VI
Protection of Victims and Witnesses

Section 13. Protection of Victims and Witnesses. - In addition to existing provisions in Philippine law for the protection of victims and witnesses, the following measures shall be undertaken:

(a) The Philippine court shall take appropriate measures to protect the safety, physical and physiological well-being, dignity and privacy of victims and witnesses. In so doing, the court shall have regard of all relevant factors, including age, gender and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and to a fair and impartial trial;

(b) As an exception to the general principle of public hearings, the court may, to protect the victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of the victim of sexual violence or a child who is a victim or is a witness, unless otherwise ordered by the court, having regard to all the circumstances, particularly the views of the victim or witness;

(c) Where the personal interests of the victims are affected, the court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the court in manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the court considers it appropriate in accordance with the established rules of procedure and evidence; and

(d) Where the disclosure of evidence or information pursuant to this Act may lead to the grave endangerment of the security of a witness for his/her family, the prosecution may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and to a fair and impartial trial.

Section 14. Reparations to Victims. - In addition to existing provisions in Philippine law and procedural rules for reparations to victims, the following measures shall be undertaken:

(a) The court shall follow the principles relating to the reparations to, or in respect of, victims,including restitution, compensation and rehabilitation. On this basis, in its decision, the court may, wither upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and state the principles on which it is acting;1avvphi1

(b) The court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation; and

(c) Before making an order under this section, the court may invite and shall take account of representations from or on behalf of the convicted person, victims or other interested persons.

Nothing in this section shall be interpreted as prejudicing the rights of victims under national or international law.

CHAPTER VII
Applicability of International Law and Other Laws

Section 15. Applicability of International Law.- In the application and interpretation of this Act, Philippine courts shall be guided by the following sources:

(a) The 1948 Genocide Convention;

(b) The 1949 Genava Conventions I-IV, their 1977 Additional Protocols I and II and their 2005 Additional Protocol III;

(c) The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, its First Protocol and its 1999 Second Protocol;

(d) The 1989 Convention on the Rights of the Child and its 2000 Optional Protocol on the Involvement of Children in Armed Conflict;

(e) The rules and principles of customary international law;

(f) The judicial decisions of international courts and tribunals;

(g) Relevant and applicable international human rights instruments;

(h) Other relevant international treaties and conventions ratified or acceded to by the Republic of the Philippines; and

(i) Teachings of the most highly qualified publicists and authoritative commentaries on the foregoing sources as subsidiary means for the determination of rules of international law.

Section 16. Suppletory Application of the Revised Penal Code and Other General or Special Laws. - The provisions of the Revised Penal Code and other general or special laws shall have a suppletory application to the provisions of this Act.

CHAPTER VII
JURISDICTION

Section 17. Jurisdiction.- The State shall exercise jurisdiction over persons, whether military or civilian, suspected or accused of a crime defined and penalized in this Act, regardless of where the crime is committed, provided, any one of the following conditions is met:

(a) The accused is a Filipino citizen;

(b) The accused, regardless of citizenship or residence, is present in the Philippines; or

(c) The accused has committed the said crime against a Filipino citizen.

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.

No criminal proceedings shall be initiated against foreign nationals suspected or accused of having committed the crimes defined and penalized in this Act if they have been tried by a competent court outside the Philippines in respect of the same offense and acquitted, or having been convicted, already served their sentence.

Section 18. Philippine Court, Prosecutors and Investigators. - The Regional Trial Court of the Philippines shall have original and exclusive jurisdiction over the crimes punishable under this Act. Their judgments may be appealed or elevated to the Court of Appeals and to the Supreme Court as provided by law.

The Supreme Court shall designate special courts to try cases involving crimes punishable under this Act. For these cases, the Commission on Human Rights, the Department of Justice, the Philippine National Police or other concerned law enforcement agencies shall designate prosecutors or investigators as the case may be.

The State shall ensure that judges, prosecutors and investigators, especially those designated for purposes of this Act, receive effective training in human rights, International Humanitarian Law and International Criminal Law.

CHAPTER IX
FINAL PROVISIONS

Section 19. Separability Clause. - If, for any reason or reasons, any part or provision of this Statute shall be held to be unconstitutional or invalid, other parts or provisions hereof which are not affected thereby shall continue to be in full force and effect.

Section 20. Repealing Clause. - All laws, presidential decrees and issuances, executive orders, rules and regulations or parts thereof inconsistent with the provisions of this Statute are hereby repealed or modified accordingly.

Section 21. Effectivity. - This Act shall take effect fifteen (15) days after its complete publication in the Official Gazette or in two (2) newspapers general circulation.

Approved,

Sgd. PROSPERO C. NOGRALES
Speaker of the House of Representative Sgd. JUAN PONCE ENRILE
President of the Senate
This Act which is a consolidation of Senate Bill No. 2669 and House Bill No. 6633 was finally passed by the Senate and the House of Representatives on October 14, 2009 and October 16, 2009, respectively.

For:

Sgd. MARILYN B. BARUA-YAP
Secretary General
House of Representatives

Sgd. EMMA LIRIO-REYES
Secretary of the Senate
Approved:

Sgd. GLORIA MACAPAGAL-ARROYO
President of the Philippines

December 11, 2009

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

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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."