Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City

FIFTEENTH CONGRESS
First Regular Session

4948

HOUSE BILL NO.

Introduced by Representatives NERI JAVIER COLMENARES,
TEDDY A. CASINO, RAFAEL V. MARIANO, ANTONIO L. TINIO,
LUZVIMINDA C, ILAGAN, EMERENCIANA A. DE JESUS
and RAYMOND V. PALATINO

AN ACT PUNISHING MILITARY COMMANDERS OR SUPERIORS
FOR CRIMES OR OFFENSES COMMITTED BY THEIR
SUBORDINATES UNDER THE PRINCIPLE OF
COMMAND RESPONSIBILITY

EXPLANATORY NOTE

If there is one word that describes the state of human rights in the Philippines today—it is
impunity. There were 1,206 deaths by extra judicial killing under the Arroyo Administration
according to the 2010 Year-end Report on the Human Rights Situation by the Human
Rights group Karapatan. Under the new administration, the killings continue with already
44 cases — that brought about the record of 4-5 political killings in a month. But not one
suspect has been convicted. Also since 2001, there have been 211 victims of enforced
disappearance, with their families still in the dark as to the fate or whereabouts of their
loved ones.

The Philippine government is obligated under the Universal Declaration of Human Rights
to defend, protect and promote the human rights of all persons. Section 2 of the said
instrument provides that:

Everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.

Specifically, the government is obligated under Section 2 of the International Covenant on
Civil and Political rights in this wise:


2. xxx each State Party to the present Covenant undertakes to take the necessary
steps, xxx, to adopt such laws or other measures as may be necessary to give
effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized
are violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity;

In November 2007 United Nations Special Rapporteur on Extrajudicial, Summary or
Arbitrary Executions released his report saying that the counter-insurgency program of the
Philippine Government has led to the numerous cases of extrajudicial killings of activists.

‘Then former President Gloria Macapagal Arroyo created the Melo Commission, that
established military involvement in extrajudicial killings when it released a report submitted
to Arroyo, linking state security forces to the murder of militants. It also recommended that
military officials, notably retired Major General Jovito Palparan, be held liable under the
principle of command responsibility for killings in their areas of assignment.

Despite these, not one case was ever solved, and the killings continue.

One of the-major reasons for this state of impunity is the lack of accountability and
prosecution of military commanders for the acts of their subordinates despite widespread
charges of the responsibility of many of their officers and personnel. This lack of
accountability on the part of military commanders and superiors is what this bill on
command responsibility seeks to address.

The concept of command responsibility is not alien to the Philippine notion of justice and
accountability. In 1945, the infamous General Tomoyuki Yamashita was charged and
convicted with unlawfully disregarding and failing to discharge his duty as a commander to
control the acts of members of his command by permitting them to commit war crimes in
the Philippines. His case has since became a precedent regarding the command
responsibility for war crimes and is known as the Yamashita Standard.

In fact, the Philippines ratified the Additional Protocol II to the Geneva Conventions which
expressly requires under Article 86(2) that the fact that a breach of the convention or of the
Protocol was committed by a subordinate does not absolve his superiors from penal or
disciplinary responsibility, as the case may be, if they knew, or had information which
should have enabled them to conclude in the circumstances at the time, that he was
committing or was going to commit such a breach and if they did not take all feasible
measures within their power to prevent or repress the breach.

Admittedly, the difficulty of applying command responsibility in criminal prosecution in the
Philippines stems from the fact that there is no Philippine law on the matter.


Itis high time for Congress to contribute in efforts to stem the escalating human rights
violation by enacting a law that will ensure accountability on the part of military officers by
penalizing their acts or omission in preventing, if not punishing, human rights offenses by
their subordinates.

Hence, we earnestly urge the passage of this bill into law.

Approved,

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NI IENARE: TEDDY A. CASINO
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ACT Teachers Party Anakpawis Party-List

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LU IINDA C. ILAG: EMERENCIANA A, DE JESUS.
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RAYMOND ¥. PALATINO:
Kabatdan Party-List


Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City

FIFTEENTH CONGRESS
First Regular Session

4948

HOUSE BILL NO.

Introduced by Representatives NERI JAVIER COLMENARES,
TEDDY A. CASINO, RAFAEL V. MARIANO, ANTONIO L. TINIO,
LUZVIMINDA C. ILAGAN, EMERENCIANA A. DE JESUS
and RAYMOND Y. PALATINO

AN ACT PUNISHING MILITARY COMMANDERS OR SUPERIORS FOR
CRIMES OR OFFENSES COMMITTED BY THEIR SUBORDINATES UNDER
‘THE PRINCIPLE OF COMMAND RESPONSIBILITY

Section 1. Title. — This Act shall be known as the “Command Responsibility Act of 2011.”
Section 2. Policy. — It shall be the policy of the State to:

(a) Ensure obedience to the Constitutional principle that civilian authority is, at all
times, supreme over the military; that the Armed Forces of the Philippines is the
protector of the people; and that public officers and employees must at all times be
accountable to the people.

(b) Uphold the policy that the State values the dignity of every human person and
guarantees full respect for human rights.

(©) Address impunity by making military commanders or superiors accountable for the
acts of their subordinates under the principle of Command Responsibility.

Section. 3. Definition of Terms. — For purposes of this Act, the following terms shall
mean;

(a) Command Responsibility — is the criminal responsibility ofa military commander
or superior for a crime or offense committed by a subordinate under his or her
effective command and control if the commander or superior knew or under the
circumstances should have known that the subordinate committed, was committing
or about to commit such crime or offense and he or she failed to take all the
necessary and reasonable measures to prevent or repress such acts, or submit the
matter to competent authorities for investigation and prosecution, as the case may
be.


(6) Military Commander or Superior — is a person who has effective powers of
command and control over the actions of units or paramilitary units of the Armed
Forces of the Philippines (AFP) or its personnel including its civilian agents. The
command and control may be de jure or de facto and the commander or superior
may be military or civilian and shall include other government officials who actually
exercise such powers.

(©) Subordinate — is the military or paramilitary unit or individual persons, including
civilian agents, under the effective command and control of the military commander

ian Agent — is a person who is not a member of the AFP or any of its para-
military units but whose services are utilized by it in the conduct of operations,
whether or not such services are paid for.

(©) Personal Crime ~ is a crime committed by a subordinate which is totally unrelated to
his being a member of the military, paramilitary, or as a civilian agent of the AFP.

Section 4. Scope. ~ This law shall apply to all military commanders or superiors of the AFP
including those commanding its civilian agents or paramilitary forces established or
employed by the AFP. Provided, that nothing in this act shall be construed as holding a
commander or superior criminally liable for personal crimes committed by a subordinate,

Section 5. Direct Liability. ~ Any person, including the military commander or superior
himself or herself, who actually participated in any crime or offense in any manner, either
by planning, instigating, ordering, committing, aiding, abetting or otherwise, giving rise to
liability under this Act, shall continue to be separately liable for the crime committed under
existing laws.

Section 6. Responsibility of a Military Commander or Superior. —

(a) It is the responsibility of military commanders or superiors to properly command,
control and supervise their subordinates, A military commander ot superior is
responsible for the proper performance by his or her subordinates of their duties. He
or she has complete and overall responsibility for all activities within his or her unit
or of those under his or her effective command and control, and is therefore
responsible for everything his or her unit or subordinate does or does not do. It is the
duty of a military commander or superior to give clear and concise orders within the
bounds of the law and insure that the same is properly understood by his or her
subordinates.

(b) Any person acting as a military commander or superior shall be criminally liable for
crimes committed by a subordinate under his or her command and control, where the
commander or superior knew or should have known that the subordinate committed,
‘was committing or about to commit such acts and he or she failed to take all
necessary and reasonable measures to prevent or repress such acts, or to punish the
perpetrators or submit the matter to competent authorities for investigation and
prosecution, as the case may be.

(©) Other superior officers or those higher in the chain of command of the immediate
military commander or superior, including the commanger-in-chief, of the


subordinate who committed, was committing or is about to commit a crime, shall be
criminally responsible for crimes committed by subordinates under his or her
effective authority and control, as a result of his or her failure to exercise control
properly over such subordinates, where:

a. The superior either knew, or disregarded information which clearly
indicated, that the subordinates committed, were committing or about to
commit such crimes. Complaints in the Commission on Human Rights,
courts or complaints submitted to the AFP and reports of the media or other
government agencies shall form part of the information referred to in this
Act;

b. The crimes concerned activities that were within the effective responsibility
and control of the superior; and

c. The superior failed to take all necessary and reasonable measures to prevent
or repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.

Section 7. Presumption of Knowledge. — A military commander or superior is presumed
to have knowledge of the crime committed by his or her subordinate when any of the
following circumstances are present:

(a) The same crime is committed by his or her subordinates two or more times in one
year, whether or not the said offenses were committed by the same subordinate;

(b) Crimes, whether or not the same, are repeatedly committed by his or her
subordinates during the course of his or her career as a military commander or
superior.

(©) When the crime committed by the subordinate is pursuant to a policy being
implemented by the commander or superior whether or not said policy is in writing;
and

(d) When the crime is committed in compliance with the order of the commander or
superior, albeit only the intended result was manifested to the subordinate.

Section 8. Penalties. ~ For acts provided under Sections 6 (b) and (c), the following
penalties shall be imposed:

a) Imprisonment for at least ten (10) years up to life imprisonment. Provided, that the
Court in the determination of the appropriate term for imprisonment, shall consider
the gravity of the crime committed by the subordinate, the extent of the military
commander's or superior’s own personal involvement in said crime or the
seriousness of the failure to perform his or her responsibilities. Provided further,
that if the crime was committed by the subordinate through the behest or command
of the commander or superior, the maximum penalty of life imprisonment shall be
imposed;

A fine of at least One Hundred Thousand Pesos (P 100,000.00); or both fine and
imprisonment, at the discretion of the court;

b)


©) Forfeiture of proceeds, property and assets derived directly or indirectly from the
crime committed by the subordinate, if any, without prejudice to the rights of the
private offended party;

4) Perpetual disqualification from holding public office; and

€) Loss of all retirement and separation benefits from the Government, if any.

Section 9. Prescription. — The offense of command responsibility under this Act shall not

prescribe.

Section 10. Separability Clause. ~ If any part, section or provision of this Act shall be held
invalid or unconstitutional, the other provisions shall not be affected thereby.

Section 11. Repealing Clause. ~ All other acts, laws, executive orders, presidential
issuances, rules and regulations or any part thereof which are inconsistent herewith are
hereby deemed repealed or modified accordingly.

Section 12. Effectivity Clause. — The provisions of this Act shall take effect fifteen (15)
days from its publication in at least two (2) national newspapers of general circulation.

Approved,