Thursday, October 6, 2022

Command Responsibility vs. Commanding Irresponsibility

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(AFP PHOTO /Noel Celis)

To be goaded to question a legal decision is one thing; to be reduced to a speechless wreck is another.

This, apparently, is where the train slammed against the tree: When I read a Philippine Daily Inquirer report saying that the Department of Justice (DOJ) had recently cleared 13 Caloocan City police officers implicated earlier in the murder of 17-year-old Kian delos Santos (Tetch Torres-Tupas, “DOJ clears 13 cops implicated in Kian slay,” The Philippine Daily Inquirer, 30 Jan. 2018).

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I wasn’t sure what to make of it at first. My willingness to suspend all quota of disbelief, my giving the decision its allowable portion of the benefit of the doubt, proved only futile in the end.

Culpability of the said officers forms an inherent part of my understanding of the doctrine of command responsibility. Seeing these officers go scot-free defies every rule of common sense, logic, and any understanding of justice and the rule of law.

The Inquirer report stated, “In its 41-page resolution, the DOJ dismissed the case against Chief Inspector Amor C. Cerillo, Police Officer 2 Arnel Canezares, PO2 Diony B. Corpuz, PO1 Reynaldo Dan M. Blanco Jr., PO2 Fernand C. Cano, PO1 Silverio C. Garcia Jr., PO1 Ronald B. Herrera, PO1 Myrldon L. Yagi, PO1 Christian Joy G. Aguilar, PO1 J-Rossillini O. Lorenzo, PO1 Erwin C. Romeroso, PO1 Ferdinand R. Claro and PO1 Ceferino B. Paculan.”

Only three (3) Caloocan cops and a civilian are facing charges:

“Charged before the Caloocan court include Police Officer 3 (PO3) Arnel G. Oares, PO1 Jeremias T. Pereda and PO1 Jerwin Cruz as well as civilian Renato Perez Loveras alias ‘Nono’ or ‘Nonong,’ an asset who identified Kian as a drug pusher. The four are facing a case for murder, violation of Republic Act 9165 or the Comprehensive Dangerous Drugs Act for planting of dangerous drugs, and RA 10591 or the Comprehensive Firearms and Ammunition Regulation Act or planting of firearm.”

As for those charged, “[T]he DOJ also noted that the forensic results from both the Philippine National Police (PNP) and the Public Attorneys’ Office (PAO) Forensic Laboratory showed that ‘the gunshot wounds sustained by Kian were all found at the back, particularly the head. Forensic results from the PNP and PAO prove an indisputable conclusion that Kian was shot while in somewhat kneeling/fetal position,’ the DOJ resolution further stated.”

As for the dismissed 13 cops: “’Stress is taken that there is no evidence that the Philippine National Police (PNP) has adopted a policy of summary execution of persons involved in drugs. Neither was it established that Cerilo, on his own, gave instructions, express or implied, to his subordinate policemen to kill any drug suspects,’ the DOJ resolution added.”

The most damning part of the decision, which defends the alleged failure to build a case against Chief Inspector Amor C. Cerillo on the issue of command responsibility, came from the DOJ decision itself.

“The DOJ said Cerillo, precinct commander of Caloocan Police Station 6, cannot be held liable under the doctrine of command responsibility [emphasis, mine] because there was no evidence to prove that he gave instructions to kill during the drug operation when Kian was killed.”

I find this intriguing because at no time was it ever doubtful that command responsibility played a role in the effort to strengthen the charges against the accused.

Based on the Peace and Justice Initiative, command responsibility is defined as follows: “A superior, whether de jure or de facto, may be held criminally responsible under that doctrine in relation to crimes committed by subordinates where, at the time relevant to the charges, he was in a relationship of superior-subordinate with the perpetrators, knew or had reason to know (or, in the case of military superiors at the ICC, ‘should have known’) that these crimes had been committed or were about to be committed and, with and despite that knowledge, willfully and culpably failed to prevent or punish these crimes.”

In the Philippine setting, Executive Order No. 226 signed by former President Fidel V. Ramos on Feb. 17, 1995 further institutionalized the Doctrine of Command Responsibility as a means to “ensuring responsive delivery of services by the government, especially in police matters”.

Under Sec. 2 of the aforementioned E.O. No 226, presumption of knowledge comes into play when “[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.”

Let’s take Sec. 2 point by point.

Presumption of knowledge must be applied under three circumstances: One, when the irregularities or illegal acts are widespread within his area of jurisdiction; and two, when the irregularities or illegal acts have been repeatedly or regularly committed within his area of responsibility.

In short, frequency and spread of the aforementioned illegal acts are sufficient, by law, to presume the officers are fully aware of the proliferation of the crime.

(AP Photo/Bullit Marquez)

Or in another way of phrasing it, in order to charge the Caloocan police chief using the doctrine of command responsibility, these crimes must have already been prevalent, thus within full view of the officers in charge, prior to the murder of Kian delos Santos.

Seventeen-year-old Kian was murdered on Aug. 16, 2017. Months before he was accosted by police officers and shot at the back, Caloocan figured in the news as a hotbed of vigilante killings of which the police, if not the prime suspects, did little, if at all, to solve the killing spree.

ABS-CBN reported the death of a certain Jaime Trinidad on July 28, 2016. Trinidad was said to have surrendered earlier under the government’s Oplan Tokhang.

On July 31, 2016, Pilipino Star Ngayon reported the slaying of four individuals: Michael Tayao (Brgy. 54), Marciano Jurok (Brgy. 63), Jonathan Jervoso and Jervy Sta. Maria (Brgy. 175). This was hours after Rodrigo Duterte assumed office as President of the Republic.

Aug. 2, 2016 was particularly disturbing. Based on a Pang-Masa report, eight individuals fell at the hands of the “Caloocan Death Squads.” The victims were found in different areas of the city.

Four other individuals from Caloocan fell on Aug. 6, 2016 within hours of each other based on Pilipino Star Ngayon report: Benilda Mayores, 59, a vendor from Block 33 Lot 6; Rogel Bonifacio of Brgy. 166; Mark Jayson Rivera of Brgy. 167; and a person known only in the area as alyas Owa.

August 26, 2016 saw the killing of a tricycle driver named Michael Young by 10 suspected members of a vigilante group according to a report by Balita.

During the last legs of Dec. 2016, Brgy. Bagon Silang in Caloocan was rattled by the murder of seven individuals.

This list doesn’t include victims who fell during police operations in the said area.

A quick browse of news reports before and after Kian was killed indicates a clear pattern of vigilante murders, the same disturbing accounts that forced the hand of National Capital Region Police Office (NCRPO) chief Director Oscar Albayalde to sack all the 3,500-personnel of the Caloocan City Police on the morning of Sept. 15, 2017.

That act alone, based on several police and news reports, would’ve given the DOJ more than enough legal ammunition to establish “presumption of knowledge,” thus command responsibility, based on the first two circumstances mentioned in EO 226:

(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.

In fact, as early as mid-August 2016, Northern Police District (NPD) Director chief Supt. Roberto Fajardo already demanded an explanation why “widespread killings” were taking place.

While these reports do not necessarily prove police involvement in the string of murders, they speak tons about neglect of duty. Impunity, or failure to prevent or punish such crimes, is enough to implicate the senior commanding officer of neglect using the doctrine of command responsibility.

As for the third and last circumstance where knowledge must be presumed, “[w]hen members of his immediate staff or office personnel are involved,” we must revisit the definition of the doctrine of command responsibility:

“A superior, whether de jure or de facto, may be held criminally responsible under that doctrine in relation to crimes committed by subordinates where, at the time relevant to the charges, he was in a relationship of superior-subordinate with the perpetrators, knew or had reason to know (or, in the case of military superiors at the ICC, ‘should have known’) that these crimes had been committed or were about to be committed and, with and despite that knowledge, willfully and culpably failed to prevent or punish these crimes.”

“Knew or had reason to know […] that these crimes had been committed or were about to be committed” is a phrase that has particular significance in my argument.

President Duterte, who time and again had stressed that he is the Commander-in-Chief of both the police and the military, had repeatedly given his unflinching support for police personnel if and when they break the law, skirt due process, or plant evidence.

By these statements of the President, the chief of the Caloocan police should have immediately warned his men to stand down and do nothing outside of his explicit instructions and the provisions of existing laws.

The Caloocan police chief had more than enough reason to anticipate a breakdown in how police officers might conduct themselves during a police operation all because the statements came from the President himself.

Why the DOJ came to its conclusions without the least bit effort to look into existing reports will probably remain a mystery.

The doctrine of command responsibility was included in our laws precisely because “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” (E.O. No. 226).

Beyond the threat of a suffocating sense of injustice lies the even greater danger of police officers going rogue all because their Commander-in-Chief knew no better than to encourage them to break the police officer’s code of conduct.

The murdered being what they are—dead and unable to defend themselves—fall to a mere statistic for those whose jobs is to crunch numbers on paper.

The murdered cannot be brought back to life. It remains the responsibility of the living to make sense of the untimely passing of Oplan Tokhang’s victims. As it is, justice for Kian remains bleak and untenable, and this includes the thousands upon thousands more who fell—and will continue to fall—without due process in Duterte’s war on drugs.

But make no mistake about it: the dead will continue to speak. And speak they must, Kian most of all, through the thinkers of our generation, if only to hold on to that hope which will enable this country to resurrect its sense of justice and what is right. G

 

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