A DARING ACT OR REBELLIOUS SPIRIT MERITS COMPASSION

(EXPLANATION OF VOTE RE:

HOUSE CONCURRENT RESOLUTION NO. 08)

By: Rep. Edcel C. Lagman

          The grants of amnesty and pardon are acts of magnanimity and grace of the State, which is the principal offended party in criminal cases like mutiny, rebellion and other high-profile offenses.         

           Since the State is the prime aggrieved party, criminal cases are aptly captioned “People of the Philippines” versus the accused.

           Under Section 19 of the 1987 Constitution, the power of the President to grant amnesty is unqualified as to beneficiaries and the nature of the covered offenses. The only condition is that it must have the “concurrence of a majority of all the Members of the Congress.”

           The beneficent objective of the grant of amnesty is the attainment of peace and reconciliation. It serves the national interest.

           However, in order not to embolden future adventurism in attempting to illegally seize political power under the pretense of addressing grievances against the government, affording amnesty must be sparing.

           It must be recalled that the last effective amnesty was proclaimed 10 years ago in 2000 with the House of Representatives and the Senate signifying their concurrence on 06 December 2000 and 07 February 2001, respectively, to Proclamation No. 390 which granted amnesty to members and supporters of the Moro Islamic Liberation Front (MILF).

           The congressional concurrence to an amnesty proclamation must transcend partisan boundaries. It is for this reason that the House Minority has decided to allow its individual members to cast conscience votes.

           However, the Minority has agreed to make four major recommendations to the President with respect to the amnesty proclamation and/or its implementation:

           1. The effectivity of Proclamation No. 50 must be changed from “upon the signature of the President” to “upon concurrence of a majority of all the Members of the Congress.” This is to abide with the constitutional prescription on congressional concurrence and also for the President not to marginalize the Congress. This has been adopted with the issuance of Proclamation No. 75 which amended Proclamation No. 50.

           2. All parties to the amnesty application – the applicant, the oppositor, and any intervenor – must have the right to appeal to the Office of the President from the decision of the Secretary of National Defense. Proclamation No. 75 likewise complies with this suggestion.

           3. No applicant must be granted amnesty without his admitting his guilt or criminal culpability in writing as expressed in his application. This is now incorporated in House Concurrent Resolution No. 08.

           4. Pending appeal by the proper party to the Office of the President from the decision of the Secretary of National Defense in the application for amnesty, such decision should not be executory in order not to render naught the right to appeal. Again, this is included in House Concurrent Resolution No. 08 as a recommendation to the President.

            Accordingly, I vote in favor of House Concurrent Resolution No. 08, as amended.

           A final word: while a daring act or rebellious spirit merits compassion, there must be no pardon or amnesty for incompetence and ineptitude.

SPONSORSHIP REMARKS

(Delivered by REP. EDCEL C. LAGMAN, Principal Author of House Bill No. 96, at the public hearing on the RH bills by the Committee on Population and Family Relations on 24 November 2010)

If the oppositors to the RH bills can be true and candid to the public and to themselves, they would admit that they are objecting not because the bills are health measures but because the bills are basically family planning and population measures.

 Verily, the referral of the bills to the Committee on Population and Family Relations is correct and consistent with the jurisdiction of the committee on “all matters directly and principally relating to population growth and family planning” as provided by Section 27 (mm) of the Rules of the House.

 Family planning and population and development are interlinked with reproductive health.

 The RH bills aim to ensure an enabling environment for people to choose freely and responsibly the number and spacing of their children and the method of family planning best suited to their needs and personal convictions – which are basic human rights. They seek to help women and couples meet their fertility goals and guarantee the reproductive health of all Filipinos.

 Neither the Church nor the State has the right to dictate on the faithful or citizens which form of family planning they should use. That choice primarily and ultimately belongs to the couple, but most especially to women who bear the brunt of pregnancy, childbirth and childcare.

 The central concept of the RH bills is freedom of informed choice. There is neither compulsion or reprisals for non-acceptors nor rewards or incentives for acceptors.

A comprehensive, rights-based, health-oriented and development-driven law on reproductive health and population development will also:

 1.  Improve maternal, newborn and child health and nutrition, and reduce maternal, infant and child mortality, consistent with the Millennium Development Goals whose common denominator is reproductive health and family planning;

2.  Effectuate the people’s right to sustainable human development;

3.  Help lower the incidence of abortion by preventing unplanned, mistimed and unwanted pregnancies – the very pregnancies which are terminated through abortion;

4.  Enhance the success  of the country’s poverty alleviation agenda; and

5.  Enable government to confront the challenges of climate change and environmental despoliation. I am positive that the enactment of a national statute that upholds the right of every woman to safe motherhood; the right of every Filipino to reproductive self-determination; and the right of every child to be born wanted, is nearing its ultimate realization.

 The people have spoken in favor of the RH bills in numerous surveys with consistent results; the leadership of the House is committed to prioritize consideration of the bills and put to a vote a consolidated version; the President is steadfast for responsible parenthood and voluntary contraceptive use; and the Holy Father has moderated the Church’s prior total ban on the use of condoms in favor of their use for health reasons.

I earnestly urge the approval of House Bill 96 together with the five allied bills.

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 17^th 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.

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Noynoy: Heads will roll over hostage rescue lapses
By Aurea Calica (The Philippine Star) Updated September 01, 2010 12:00 AM Comments (373)

Link:http://www.philstar.com/Article.aspx?articleId=607996&publicationSubCategoryId=63

Senators press Aquino: Heads must roll

By Gil C. Cabacungan Jr.
Philippine Daily Inquirer
First Posted 00:58:00 09/06/2010

           Link: http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100906-290721/Senators-press-Aquino-Heads-must-roll

                                                    DEAL OR NO DEAL
                    (Privilege Speech Delivered by Hon. Edcel C. Lagman

on 23 August 2010 on the Hacienda Luisita Controversial “Stock Distribution Option”)



          Mr. Speaker and Distinguished Colleagues:

          On 16 January 1986 then presidential candidate Cory Aquino in a major speech in Davao declared: “Land-to-the-tiller must become a reality, instead of an empty slogan.” She further said: “You will probably ask me – will I also apply it to my family’s Hacienda Luisita? My answer is yes.”

          On 09 February 2010 or 24 years later, candidate Noynoy Aquino also vowed to “ensure the distribution of Hacienda Luisita’s 4,500-hectare plantation to farmer-beneficiaries by June 2014.”

          President Corazon Aquino, a truly beloved and respected leader, redeemed her promise by making agrarian reform the centerpiece program of her administration.

          On 10 June 1988, she signed the Comprehensive Agrarian Reform Law (CARL). However, this milestone legislation was improvidently tarnished by its Section 31 which considered “Stock Distribution Option” as sufficient compliance with the Comprehensive Agrarian Reform Program (CARP).

         Consequently, Hacienda Luisita was exempted from the coverage of land distribution. To the Hacienda Luisita agrarian beneficiaries, it was not “land-to-the-tiller” as promised. It was “parchment-to-the-tiller”. And what a piece of paper!

         President Benigno “Noynoy” Aquino has yet to redeem his campaign promise of having the Hacienda Luisita lands distributed to the tillers.

         He recently demurred from answering questions on his said campaign promise by conveniently invoking sub judice which in his estimation precluded him from commenting on an issue involving the validity of Hacienda Luisita’s “Stock Distribution Option”  which is pending before the Supreme Court.

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