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Republic of the Philippines
HOUSE OF REPRESENTA’
‘Quezon City, Metro Manila

SIXTEENTH CONGRESS
First Regular Session
6

House Bill No.

Introduced by
Representatives NERI J. COLMENARES, CARLOS ISAGANI T. ZARATE,
LUZVIMINDA C. ILAGAN, EMMI A. DE JESUS, ANTONIO L. TINIO,
FERNANDO HICAP and TERRY RIDON

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. Despite the 1,206 deaths by extra judicial killings since 2001 (plus 137

cases under the present administration), not one suspect has been convicted. Until this day
more than 200 have been 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 instrament
provides that:

Exveryone 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, x x2 each State Party tothe present Covenant undertakes to take the necessary steps, xX,
to adopt such laws or other measures as may be necessaty 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 efctve remedy, notwithstanding thatthe violation has been committed by persons
acting in an official capacity;

Military involvement in extrajudicial killings was established when the Melo Commission
released a report submitted to Arroyo, 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 responsibilty for killings in their areas of assignment. Even UN Rapporteur
Phillip Aiston in his report on extrajudicial summary or arbitrary executions in the Philippines said that
the counter-insurgency 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.

‘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 ot 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 af 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.


Apprond,

Rep. LUZVIMINDA C. ILAGAN 2 CARLOS IS, ee T. ZARATE
Gabriela Women’s Party Bayan Muna Party-list
ives o/ aan
Rep. EMMI A. DE JESUS ‘ep. ANTONIO L. TINIO
Gabriela Women’s Party ACT Teachers Party-list

dwt iy

Rep. FERNANDO HICAP
Anakpawis Party list



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

SIXTEENTH CONGRESS
First Regular Session
699

House Bill No.

Introduced by
Representatives NERI J. COLMENARES, CARLOS ISAGANI T. ZARATE,
LUZVIMINDA C. ILAGAN, EMMI A. DE JESUS, ANTONIO L. TINIO,
FERNANDO HICAP and TERRY RIDON

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”.
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.

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 ot 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 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 or
superior.

Civilian Agent. —is a 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.

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. —

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 ot her unit or subordinate does or does not do. It is the duty of a
military commander ot 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.
‘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 ot 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 ot superior, including the commander-in-chief, of the subordinate
who committed, was committing or is about to commit a crime, shall be criminally
esponsible 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 cleatly 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

©. 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

b.

“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;

Crimes, whether ot 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.

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

a

d.

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 (P100,000.00); or both fine and
imprisonment, at the discretion of the court;

Forfeiture of proceeds, property and assets derived directly o 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 ot 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
sepealed 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,