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Republic of the Philippines | 1
HOUSE OF REPRES INTATIVES DATE Me AUG 2016
Quezon City, Metro Manila = a
SEVENTEENTH CONGRI | ev: wh
First Regular Session |

mid
House Bill No._27 84

Introduced by BAYAN MUNA Rep. CARLOS ISAGANI T. ZARATE

AN ACT
PUNISHING MILITARY COMMANDERS OR SUPERIORS FOR CRIM
OR OFFENSES COMMITTED BY THEIR SUBORDINA’ fl
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. Despite the 1,513 extra judicial killings from committed between 2001-
2016 (307 cases alone under the previous Aquino administration), not one suspect has
been convicted. At present, there are also more than 200 victims of enforced
disappearance, and yet their families remain 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,
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.

‘ach 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;

Military involvement in extrajudicial killings was already established in the past. For
example, the Melo Commission released a report submitted to the then Arroyo


administration linking state security forces to the murder of militants and 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,
Even UN Special Rapporteur Phillip Alston in his report on extrajudicial summary or
rbitrary executions in the Philippines said that the counter-insurgeney program of the
Philippine Government has led to the numerous cases of extrajudicial killings of
activists. Despite this, not one case was ever solved, and the killings continue.

A more recent case is the extrajudicial killing of a pregnant /umad leader Juvy Capion
and her two young sons on what is now dubbed as the Capion Massacre. The family was
killed after members of the 27" Infantry Battalion strafed their dwelling in the mining-
affected Tampakan, Davao del Sur. The Department of Justice later conducted
investigation and filed charges against 13 soldiers involved in the massacre, but
exonerated Lt, Col. Alexis Bravo, Lt. Dante Jimenez from any command responsibility
despite their roles as commanders

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 Conventioi
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.

This bill was first filed in the 15" Congress by Bayan Muna Reps. Teddy Casino and
Neri Colmenares in response to the grievous unresolved extrajudicial killings in the
afiermath of the Arroyo administration.

However, the continuing extrajudicial killings and impunity makes this bill significant
today. It is 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,

Bayan Muna Party-list


Republic of the Philippines
HOUSE OF RESENTATIVES
Quezon City, Metro Manila

SEVE! ENTH CONGRI
First Regular Session

"
House Bill No,_27 81

Introduced by BAYAN MUNA Rep. CARLOS ISAGANI T, ZARATE

AN ACT
PUNISHING MILITARY COMMANDERS OR SUPERIORS FOR CRIMES
OR OFF! '§ COMMITTED BY THEIR SUBORDINATES UNDER TH
PRINCIPLE OF COMMAND RESPONSIBILITY

Section 1, Title. — This Act shall be known as the “Command Responsibility Act”,

Section 2. Policy, — It shall be the policy of the State to:

ture 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.

c. 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 of a 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.

b. Military Commander or Superior, ~ is a person who has effective powers of
command and control over the s itary units of the Armed

civilian agents. The
command and control may be de jure or de facto and the commander ot 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 or superior,



d. Civilian Agent. ~ isa person who is not a member of the AFP or any of its
paramilitary units but whose services are utilized by it in the conduct of
operations, whether or not such services are paid for.

e. 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
AEP 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,
cither 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. Itis the responsibility of military commanders or superiors to properly
command, control and supervise their subordinates. A military commander or
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.

c, Other superior officers or those higher in the chain of command of the immediate
military commander or superior, including the commander-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

ffective 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 concemed 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.

Scetion 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:

Section 8. Penaltic

he 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;

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

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.

For acts provided under Sections 6 (b) and (c), the following

penalties shall be imposed:

a.

d.
e.

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;

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;

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,