BIGGER HEADS MUST ROLL
(Speech delivered by Rep. Edcel C. Lagman on 01 September 2010)
The rite of human sacrifice as a ritual for atonement is ingrained in the cultures of antiquity, including that of the Hebrew civilization.
The sacrificial death of Christ to atone for the sins of the world and to save mankind could be part of this tradition as interpreted by ecclesiastical scholars.
Human sacrifice in the ancient western tradition was death in the hands of a high priest or civilian authority.
However, in feudal Japan (1192-1868) the sacrifice was self- inflicted as ritual suicide and formally known as seppuku or hara-kiri in common parlance, which was practiced by the Samurai (military nobility) and Daimyo (feudal lord) who was next only to the Shogun.
To the Samurai, seppuku – whether ordered as a judicial punishment or chosen as a form of personal redemption or atonement – was a veritable “demonstration of their honor, courage, loyalty, and moral character”. Death is considered better than dishonor.
From human sacrifice and hara-kiri, a new concept of vicarious accountability or responsibility has evolved in what is known as “command responsibility”, also referred to as the “Yamashita standard” or the “Medina standard”. Command responsibility is the doctrine of hierarchical responsibility in cases of war crimes.
The doctrine of “command responsibility” was first established by the Hague Conventions and initially applied by the German Supreme Court in Leipzig after World War I in the 1921 trial of Emil Muller.
The “Yamashita standard” was set by the United States Supreme Court in the case of Japanese General Tomoyuki Yamashita who was prosecuted in 1945 for atrocities committed by troops under his command in the Philippines. Yamashita was charged 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.”
The “Medina standard” originated in the 1971 prosecution of US Army Captain Ernest Medina in connection with the My Lai massacre during the Vietnam War. It holds that “a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action”.
It is said that “command responsibility is an omission mode of individual criminal liability: the superior is responsible for crimes committed by his subordinates and for failing to prevent or punish (such crimes)”.
A superior is culpable for “personal dereliction” or “where his failure to properly supervise his subordinates constitutes criminal negligence on his part.”
Guenael Mettraux in his The Law of Command Responsibility wrote that command responsibility “is a sui generis form of liability for culpable omission. The core of the commander’s culpa, and the basis of his liability, stands not in the contribution that he has made to the crime of the subordinate but in a culpable dereliction of duty.”
The doctrine of “command responsibility” has been applied in the corporate world, as well as in civilian establishment of government.
Adopting the “constructive knowledge” theory in command responsibility, Executive Order. No. 226, entitled “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” and dated 17 February 1995, provides:
“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.” (Emphasis supplied).
Moreover, Section 2 of the same EO specifies presumption of knowledge:
“Section 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.” (Emphasis supplied).
The rationale for the issuance of EO 226 is found in its “whereas” clauses which read:
“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.”
The doctrine of command responsibility underlies the determination of criminal liability in Section 13 (3) of Republic Act 9745, the “Anti-Torture Act of 2009” which provides that:
“The immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies shall be held liable as a principal to the crime of torture or other cruel or inhuman and degrading treatment or punishment for any act or omission, or negligence committed by him/her that shall have led, assisted, abetted or allowed, whether directly or indirectly, the commission thereof by his/her subordinates. If he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed, or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence shall also be liable as principals.”
The relatively recent doctrine of “command responsibility” traces its ancestry to the common law principle of respondeat superior which was established in 17th century England to impute legal liability on an employer, master or superior for the tortuous actions of an
employee, servant or subordinate who is performing functions within the scope of his employment or agency.
The doctrine of respondent superior implies the responsibility of superiors on the actions of their subordinates in the discharge of the latter’s assigned duties.
This doctrine has been adopted by the Philippine Civil Code on damages arising from tort or quasi-delict with respect to the father or mother for damages caused by minor children; guardians in relation to delinquent acts of their wards; employers in relation to their employees; teachers in relation to their pupils; and the State in relation to damaging acts of special agents.
I have belabored the foregoing traditions and doctrines on vicarious responsibility or substituted accountability to further underscore the relevance and urgency of our call for the resignation or ouster of Secretary Jesse Robredo of the Department of the Interior and Local Government and Secretaries Ricky Carandang and Herminio Coloma of the Presidential Communications Group in the wake of the hostage-taking fiasco which claimed the lives of eight tourists from Hong Kong and that of the hostage-taker.
This shameful and horrifying 11-hour ordeal which was witnessed virtually by the entire country and the whole world speaks for itself, consistent with the Latin maxim res ipsa loquitor.
The resignation or ouster of the three Cabinet members concerned is not premature nor should it wait for the results of the ongoing investigations because their patent incompetence, culpable indifference and unmistakable failure of leadership cannot be erased or mitigated by any postmortem investigation.
Their censurable omissions and admitted absence during the crisis speak for themselves. No inculpatory evidence needs to be adduced to establish their respective liability or accountability. Neither is exculpatory proof acceptable to mitigate their responsibility.
In the case of Secretary Robredo, as the topmost official of the DILG in charge of the Philippine National Police, he is responsible for the errant negotiations and rescue operations bungled by his men. Worse, he is even guilty of contributory negligence for failing to take full control of the crisis situation.
It is a lame excuse that it is Undersecretary Rico Puno who has been designated “in charge of police affairs” according to President Benigno Aquino III. But Puno is only an underling. He is still accountable and under Secretary Robredo who, as alter-ego of the President, is the over-all in charge of the PNP.
Moreover, concerned police officials, Manila Mayor Alfredo Lim and Secretary Robredo and President Aquino themselves, admitted the gross mishandling of the crisis which led to the fatal fiasco.
Everything that could have gone wrong went wrong. The entire negotiation and rescue operations abysmally fell apart under Secretary Robredo’s watch.
Ironically, instead of voluntarily resigning or being forcibly fired, Secretary Robredo was named Vice Chair of the inter-agency task force which would, among others, determine his culpability.
In the case of Secretaries Carandang and Coloma, they are equally accountable for failing to enforce well-established international protocol for media covering hostage-taking incidents which are designed to secure the safety of hostages and prevent the leak of sensitive police rescue operations.
On hindsight, broadcast networks have conceded that they would have followed orders for a news blackout had they been instructed to do so. Both Carandang and Coloma were culpably unmindful of the adverse consequences of the fatal fiasco which was aggravated by the improvident blow-by-blow coverage by media which the two miserably failed to prevent.
The alibi of Malacañang that the Special Weapons and Tactics (SWAT) elements lack training and equipment because no funds were allocated for police modernization in the past is belied by adequate appropriations provided for in prior years.
In 2008 the then administration allocated P10-Billion for police modernization to be spread over five years at P2-Billion per year starting 2008.
In fact, immediately after the hostage-taking fiasco, PNP Director General Jesus Verzosa requested for the realignment of P230-Million from the PNP Modernization Program of P2.0-Billion for 2010 of which P50-Million will be used for the training of the PNP SWAT Teams and P150-Million for the procurement of ISO/Anti-Terrorism equipment. This request was endorsed by Secretary Robredo to DBM Secretary Florencio Abad in a letter antedated 25 August 2010. This only shows that requisite amounts have been appropriated and available, otherwise there would be nothing to realign.
The automatic and standard answer of Malacañang that the minority is “expected” to criticize the administration and its officials is evasive, trivial and unresponsive. The very serious indictments of “palpable incompetence”, “culpable indifference” and “unmistakable lack of leadership” are serious accusations based on facts and admissions which should not be dismissed as mere ranting or politicking of the minority bloc. The resignation call represents the overwhelming sentiments of an outraged people.
Even if I were allied with the present administration I would just the same spearhead the resignation call because this is the right action to pursue.
I do not ask Secretaries Robredo, Carandang and Coloma to offer themselves as human sacrifice in the tradition of antiquity as a ritual of atonement for others.
I do not ask Secretaries Robredo, Carandang and Coloma to commit sepukku or hara-kiri in the tradition of the Samurai to demonstrate moral character, honor and courage.
I do not yet trace command responsibility all the way to the Presidency even if it has effective responsibility and control over the Presidential Communications Group and the DILG.
I demand that Secretaries Robredo, Carandang and Coloma resign or be ousted from the Cabinet, not as a penalty consequent to an investigation but in compliance with the doctrine of “command responsibility” and the tenet of respondeat superior.
This would be an appropriate sacrifice before the venerable altar of official competence and the temple of patriotism.
Thank you Mr. Speaker and distinguished colleagues.
Noynoy: Heads will roll over hostage rescue lapses
By Aurea Calica (The Philippine Star) Updated September 01, 2010 12:00 AM Comments (373)
Senators press Aquino: Heads must roll
By Gil C. Cabacungan Jr.
Philippine Daily Inquirer
First Posted 00:58:00 09/06/2010