defend her President, de Lima forgot that on at least two

The President is Commander-in-Chief of the PNP occasions, President Aquino referred to himself as the

posted March 20, 2015 at 12:01 am by Manila Standard Commander-in-Chief of the PNP.

The Chain of Command was violated. The President,

At the graduation rites of the 2013 graduating class of
the suspended CPNP Purisima and the former Director,
the Philippine National Academy on March 22, 2013,
SAF Napenas kept the information to themselves and
attended by top officials of the PNP and policemen from
deliberately failed to inform the OIC, PNP and the
various parts of the country, he declared in his
SILG. The Chain of Command should be observed in
Commencement Speech that: Malinaw po ang atas ko
pursuing mission operations.
bilang Commander-in-Chief at hindi optional ang

Although in the passive voice where the focus is on the pagsunod sa batas. Wala akong sisinuhin sa nagtitigas-

subjectChain of Command- and not in the active voice tigasan pa rin sa ating kautusan.

where the emphasis would have been on the actor

In his address to the nation of February 6, 2015
President - Justice Secretary Leila de Lima must have
following the massacre of 44 PNP-SAF Commandos
been shocked and surprised upon reading above-quoted
on January 25, 2015 at Mamasapano, Aquino re-
statement on pages 9-10 (Executive Summary) of the
asserted his role as Commander-in-Chief of the PNP,
PNP Board of Inquiry Report on the Mamasapano
thus: As President and Commander-in-Chief, I am fully
Incident. Shocked and surprised because she never
responsible for any resultany triumph, any suffering,
expected that such a bold and frank statement a
and any tragedythat may result from our desire for
virtual indictment of the President of the Philippines
lasting peace and security.
could come from the members of the PNP Board of

Inquiry (BOI), composed of officers of the PNP who, in

Citing the February 14, 1992 decision of the Supreme
the usual and ordinary course of things would have been
Court in the case of Carpio versus Executive
deferential to the President of the Philippines not only
Secretary, de Lima asserted that the President is not
out of respect for the position he holds but also for the
the Commander-in-Chief of the PNP. He is not the PNP
more pragmatic reason that their future in the police
Commander-in-Chief because under the 1987
service depends on the President.
Constitution, the PNP is no longer part of the armed

forces. The President is only Commander-in-Chief in

After recovering from some moments of stunned silence,
relation to the armed forces. The PNP, being a civilian
de Lima, instead of reading the BOI Report further,
agency, is not part of the armed forces.
hurriedly prepared a written statement for the press

assailing the Report for starting on the wrong premise

De Lima probably thought that nobody would take the
that the President of the Philippines is the Commander-
initiative or bother to read the Carpio case, hence her
in-Chief of the Philippine National Police. In her haste to
statement would remain un-contradicted. She was
miserably mistaken because I did exactly the opposite of control and commander-in-chief powers. Under the

what she had in mind and this is what I found out. cited provision, within 24 months from the effectivity of

R. A. 6975 the Armed Forces of the Philippines (AFP)

In the Carpio case, the Supreme Court ruled that the
shall continue its present role of preserving the internal
President of the Philippines is the Commander-in-Chief
and external security of the State: Provided, that said
of the Philippine National Police pursuant to his power
period may be extended by the President, if he finds it
of control over all executive departments, bureaus and
justifiable, for another period not exceeding twenty-four
officeswhich include the PNP; and of his power of
(24) months, after which, the Department (of Interior &
supervision over local governments. The Supreme
Local Government) shall automatically take over from
Court reached this conclusion based on the answers of
the AFP the primary role of preserving internal security,
Commissioner Teodulo Natividad to the interpellation of
leaving to the AFP its primary role of preserving
Commissioner Francisco Rodrigo during the October 1,
external security.
1986 deliberation of the 1986 Constitutional

Commission on what is now Art. XVI, Sec. 6 of the Secretary de Limas reliance on the Carpio decision is,

1987 Constitution providing for the establishment and therefore, totally misplaced.

maintenance of one police force national in scope but

Not content with misinterpreting the Supreme Court
civilian in character. Commissioner Natividad was the
decision in the Carpio case, de Lima then resorted to a
sponsor the draft of said provision. Commissioner
play of words by stating that: In relation to the PNP, the
Nativad stressed that the President is the Commander-
President is the Chief Executive, in the same way
in-Chief of the national police not under the specific
that he acts as the Chief Executive to all the civilian
constitutional provision making him the Commander-in-
agencies of the Executive bureaucracy. By referring to
Chief of the armed forces but under his power of control
the President of the Philippines as Chief Executive, the
over all executive offices and his power of supervision
implication is there are other executives in the executive
over local governments.
department and the President of the Philippines

The statement in the Carpio decision that the national is only their chief. But the Philippine Constitution, to

police force does not fall under the Commander-in- paraphrase Justice Jose P. Laurel in the case of Villena

Chief powers of the President was made, in answer to, versus Secretary of Interior, created a singular, not a

and in order to dispose of, the contention of petitioner plural executive when that very Constitution vested

Castro that Sec. 12 of Republic Act No. 6975 which executive power on the President of the

established the Philippine National Police under a Philippines. This means the President of the Philippines

reorganized Department of Interior and Local is the Executive, and no other; not even the department

Government, is an encroachment upon, interference secretaries whom the President appoints and serves at

with, and an abdication by the President of, executive his pleasure.


Time and again, Secretary de Lima has been very quick
in defending his President. This is, therefore, a good
occasion as any to remind her that under the 1987
Administrative Code (Executive Order No. 292, dated
July 25, 1987), the principal mandate of the Department
of Justice which she heads isamong others- act as
principal law agency of the government and as legal
counsel and representative thereof xxx (Title III,
Chapter I, Sections 2 and 3). Consequently, as
Secretary of the DOJ, the primary authority and
responsibility for the exercise of the mandate of her
Department and for the discharge of its powers and
functions is vested on her (Book IV, Chapter 2, Section
6). To repeat and emphasize, therefore, as Attorney
General of the Republic of the Philippines by virtue of
her position as Secretary of Justice, Secretary de Lima
is the legal counsel of the Government of the Republic of
the Philippines; not the legal counsel of President
Benigno Simeon Aquino, III.
She should, therefore, act as Secretary of Justice; not as
SECRETARY OF JUSTIFICATION!
Taking stock of the
command responsibility
doctrine
IN an effort to find lasting solutions to the nagging issue
of unabated extrajudicial killings and enforced
disappearances in the country, the Supreme Court has
called for a two-day multi-sectoral summit beginning
today. Expected to attend are representatives from the
executive and legislative departments, including the
Armed Forces of the Philippines and the Philippine
National Police, and the Commission on Human Rights,
media, academe, civil society, and other stakeholders.
Under Chief Justice Reynato
Puno, the High Court has
sought a more active role
regarding the issue of politically
motivated killings that the top
magistrate says has given a
black eye to the country, with
the Arroyo government coming
under both local and
international pressure for being
unable to put an end to the murderous rampage largely
blamed on security forces.
Last March, the SC already designated 99 regional trial
courts all over the country to hear, try, and decide cases
involving the killings of judges, political activists, and
members of the media.
Of the summit, Puno had earlier articulated the need for
the judiciary to explore how the expanded powers of
judicial review granted to it under the 1987 Constitution
as a guardian and protector of civil liberties will be fully
utilized. The Chief Justice hinted at a reexamination of
legal procedures to make these more helpful to the
victims, more forceful against suspected perpetrators,
and more demanding of government agents to solve
such cases.
At the center of the review and a possible rewriting of
the rules of the countrys legal system is the concept of
command responsibility, which promises to be one of
the more difficult, ticklish issues, as Puno himself
acknowledged, to be tackled in the summit.
Already, a Manila RTC judge, Judge Silvino Pampilo Jr.,
has argued that a commander, including the President,
as commander-in-chief of the Philippine military, may be
held criminally liable under the principle of command
responsibility if he or she tolerated, failed to prevent or
played blind to extrajudicial killings and enforced
disappearances committed by his subordinates.
Pampilo also cited the recommendation made by
the Melo Commission in its reportregarding the use of
the command responsibility doctrine. The commission
said that responsibility for summary executions or
disappearances extends beyond the person or persons
who actually committed these acts. Anyone with higher
authority who authorized, tolerated or ignored these acts
are liable for them.
Contrary to Executive Secretary Eduardo Ermitas
assertions that command responsibility applies only to
military personnel and does not extend to the President
as commander-in-chief, the doctrine has evolved over
the years through the work of tribunals that have been
created to prosecute war crimes and crimes against
humanity, as well as international laws, to also cover
civilian authorities.
As the Center for People Empowerment and Governance
(CenPEG) pointed out in a recent paper, the initial
attempt to codify the principle of command
responsibility was through The Hague Convention (IV)
of 1907 Respecting the Laws and Customs of War on
Land. It was first applied at the Leipzig War Trials in 1920
where Emil Muller, a German army captain, was tried and
sentenced to imprisonment for his failure to prevent the
commission of crimes inside a prisoner-of-war camp
under his command.
Next came the Additional Protocol I of 1977 to
the Geneva Conventions of 1949where it was clearly
emphasized that superiors are not absolved of any
responsibility if they knew or had reason to know
about the commission of a crime by a subordinate and
did nothing to prevent any breaches of the Convention.
Command responsibility, from a reading of Article 68 of
the protocol, can extend to as high as any officer in the
chain of command.
Later, the International Criminal Tribunal for the
former Yugoslavia created in 1993 again upheld the
principle of command responsibility in a number of cases
it tried from 1998-2001, even asserting that ignorance
cannot be a defense (if) the absence of knowledge is the
result of negligence in the discharge of (the
commanders) duties.
Other international laws like the 1998 Rome Statute of
the International Criminal Court and the international
criminal tribunals held in Nuremberg, Tokyo, and
recently in Rwanda, have demonstrated that command
responsibility can be extended to cover civilian
authorities exercising control over military forces.
In the post-World War II prosecutions in Tokyo, the most
prominent civilian authorities convicted of war crimes
were Japanese Prime Minister Hideki Tojo, a former
military commander, and Foreign Minister Koki Hirota.
President Slobodan Milosevic and other government
officials were indicted for grave breaches of the Geneva
Conventions, violations of the laws or customs of war,
genocide and crimes against humanity, committed in the
former Yugoslavia since 1991.
In his 1998 trial, former Rwandan Prime Minister Jean
Kambanda pleaded guilty to six criminal counts,
including genocide and crimes against humanity, for
which he is now serving a life sentence.
In the Philippine context, the doctrine of command
responsibility served as basis for the trial and execution
of General Tomoyuki Yamashita by a U.S. military
tribunal for atrocities perpetrated by Japanese forces
under his command during World War II.
Below are the pertinent provisions of international
statutes and conventions that give legal basis to the
doctrine of command responsibility:
Lieber Code
Article 71
Whoever intentionally inflicts additional wounds on an
enemy already wholly disabled, or kills such an enemy, or
who orders or encourages soldiers to do so, shall suffer
death, if duly convicted, whether he belongs to the Army
of the United States, or is an enemy captured after
having committed his misdeed.
The Hague Convention (IV) of 1907 Respecting the
Laws and Customs of War on Land
Article 1 of the Annex
The Contracting Powers shall issue instructions to their
armed land forces which shall be in conformity with the
Regulations respecting the laws and customs of war on
land, annexed to the present Convention.
Article 3
A belligerent party which violates the provisions of the
said Regulations shall, if the case demands, be liable to
pay compensation It shall be responsible for all acts
committed by persons forming part of its armed forces.
Additional Protocol I of 1977 to the Geneva
Conventions of 1949
Article 86 Failure to Act
1. The High Contracting Parties and the Parties to the
conflict shall repress grave breaches, and take measures
necessary to suppress all other breaches, of the
Conventions or of this Protocol which result from a
failure to act when under a duty to do so.
2. The fact that a breach of the Conventions or of this
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.
Article 87 Duty of Commanders
1. The High Contracting Parties and the Parties to the
conflict shall require military commanders, with respect
to members of the armed forces under their command
and other persons under their control, to prevent and,
where necessary, to suppress and to report to competent
authorities breaches of the Conventions and of this
Protocol.
2. In order to prevent and suppress breaches, High
Contracting Parties and Parties to the conflict shall
require that, commensurate with their level of
responsibility, commanders ensure that members of the
armed forces under their command are aware of their
obligations under the Conventions and this Protocol.
3. The High Contracting Parties and Parties to the
conflict shall require any commander who is aware that
subordinates or other persons under his control are
going to commit or have committed a breach of the
Conventions or of this Protocol, to initiate such steps as
are necessary to prevent such violations of the
Conventions or this Protocol, and, where appropriate, to
initiate disciplinary or penal action against violators
thereof.
International Criminal Tribunal for the Former
Yugoslavia
Article 7 Individual Criminal Responsibility
1. A person who planned, instigated, ordered, committed
or otherwise aided and abetted in the planning,
preparation or execution of a crime referred to in articles
2 to 5 of the present Statute, shall be individually
responsible for the crime.
2. The official position of any accused person, whether as
Head of State or Government or as a responsible
Government official, shall not relieve such person of
criminal responsibility nor mitigate punishment.
3. The fact that any of the acts referred to in articles 2 to
5 of the present Statute was committed by a subordinate
does not relieve his superior of criminal responsibility if
he knew or had reason to know that the subordinate was
about to commit such acts or had done so and the
superior failed to take the necessary and reasonable
measures to prevent such acts or to punish the
perpetrators thereof.
4. The fact that an accused person acted pursuant to an
order of a Government or of a superior shall not relieve
him of criminal responsibility, but may be considered in
mitigation of punishment if the International Tribunal
determines that justice so requires.
International Criminal Tribunal for Rwanda
Article 6 Individual Criminal Responsibility
1. A person who planned, instigated, ordered, committed
or otherwise aided and abetted in the planning,
preparation or execution of a crime referred to in articles
2 to 4 of the present Statute, shall be individually
responsible for the crime.
2. The official position of any accused person, whether as
Head of State or Government or as a responsible
Government official, shall not relieve such person of
criminal responsibility nor mitigate punishment.
3. The fact that any of the acts referred to in articles 2 to
4 of the present Statute was committed by a subordinate
does not relieve his or her superior of criminal
responsibility if he or she knew or had reason to know
that the subordinate was about to commit such acts or
had done so and the superior failed to take the
necessary and reasonable measures to prevent such acts
or to punish the perpetrators thereof.
4. The fact that an accused person acted pursuant to an
order of a Government or of a superior shall not relieve
him or her of criminal responsibility, but may be
considered in mitigation of punishment if the
International Tribunal for Rwanda determines that justice
so requires.
International Criminal Court
Article 28 Responsibility of Commanders and other
Superiors
In addition to other grounds of criminal responsibility
under this Statute for crimes within the jurisdiction of the
Court:
(a) A military commander or person effectively acting as
a military commander shall be criminally responsible for
crimes within the jurisdiction of the Court committed by
forces under his or her effective command and control,
or effective authority and control as the case may be, as
a result of his or her failure to exercise control properly
over such forces, where:
(i) That military commander or person either knew or,
owing to the circumstances at the time, should have
known that the forces were committing or about to
commit such crimes; and
(ii) That military commander or person failed to take all
necessary and reasonable measures within his or her
power to prevent or repress their commission or to
submit the matter to the competent authorities for
investigation and prosecution.
(b) With respect to superior and subordinate
relationships not described in paragraph (a), a superior
shall be criminally responsible for crimes within the
jurisdiction of the Court 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:
(i) The superior either knew, or consciously disregarded
information which clearly indicated, that the
subordinates were committing or about to commit such
crimes;
(ii) The crimes concerned activities that were within the
effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and
reasonable measures within his or her power to prevent
or repress their commission or to submit the matter to
the competent authorities for investigation and
prosecution.
Draft Code of the International Law Commission of
1996
Article 6 Responsibility of the Superior
The fact that a crime against the peace and security of
mankind was committed by a subordinate does not
relieve his superiors of criminal responsibility, if they
knew or had reason to know, in the circumstances at the
time, that the subordinate was committing or was going
to commit such a crime and if they did not take all
necessary measures within their power to prevent or
repress the crime.

http://www.lawofwar.org/command_responsibility.htm