COMMISSION ON APPOINTMENTS It is a constitutional body of congress of the Philippines as provided by the constitution. It is an independent body separate and distinct from legislature, although its membership is confined to members of congress.

LEGAL BASIS: Sec. 18 Art. VI, Phil Constitution

There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve Senators, and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members. MANDATE: The Commission on Appointments (CA) acts on all appointments submitted to it within 30-session days of Congress from the submission of said appointments. The CA, cognizant of the consideration given by the Appointing Authority to the exercise of the power of appointment, accords due weight and respect to the appointment to the end that doubts relative to it are resolved in favor of approval or confirmation. It acts as a restraint against abuse of the Appointing Authority to the end that the power of disapproval is exercised to protect and enhance the public interest. The CA discharges its constitutional duties towards the efficient and harmonious functioning of government.

The commission on appointment does not curtail the presidents appointing authority but serves as a check and balance against its abuse. It assures that the president has exercised the power to appoint wisely by appointing only those who are fit and qualified. Its mandates form parts of the very delicate mechanism of check and balances establish by the constitution to ensure that the coordinate department of government will function in a way that will be most conducive to the public welfare. COMPOSITION: Senate President as ex-officio chairman

12 senators

12 members of House of representatives

Proportional Representation. The members of the Commission shall be elected by each House on the basis of proportional representation from the political party and party list.

The sense of the Constitution is that the membership in the Commission on Appointment must always reflect political alignments in Congress and must therefore adjust to changes. It is understood that such changes in party affiliation must be permanent and not merely temporary alliances (Daza v. Singson) Endorsement is not sufficient to get a seat in Commission on Appointment. (Coseteng v. Mitra)

Fractional Seats. Fractional seats cannot be rounded off. The seats should be vacant. (Coseteng v. Mitra) A political party must have at least 2 elected senators for every seat in the Commission on Appointments. Thus, where there are two or more political parties represented in the Senate, a political party/coalition with a single senator in the Senate cannot constitutionally claim a seat in the Commission on Appointments. It is not mandatory to elect 12 senators to the Commission; what the Constitution requires is that there must be at least a majority of the entire membership. (Guingona, Jr. v. Gonzales, G.R. No. 106971, October 20, 1992)

Holders of proportion belonging to distinct parties may not form a unity for purposes of obtaining a seat in the Commission. (Guingona v. Gonzales)

VOTING: Majority wins

The Chairman shall not vote except in the case of a tie.

Sec. 16 Art. VII, 1987 Phil Constitution

The President shall nominate and with the consent of Commission on Appointment, appoints the heads of the executive departments, ambassadors, other public ministers and consuls or officers of the armed forces from the rank of colonel or naval captain and other officers whose appointments are vested in him in this constitution. He shall appoint all other officers of the government whose appointment are not otherwise provided for by law and those whom he may be authorized by law to appoint. The congress may by law vest the appointment of other officers lower in rank in the president alone, in the courts or in the heads of department agencies, commissions or boards. Under the above provision, the president shall have the power to appoint and necessarily the Commission on Appointment must confirm such appointment: Heads of Executive departments (except Vice-President who is elected to position); Ambassadors, other public ministers or consuls Officers of the AFP from the rank of Colonel or Naval Captain; Other officers whose appointments him by the Constitution The following appointments not necessarily needs confirmation of the Commission on Appointments All other officers of the government whose appointment are not otherwise provided for by law

Those whom the president may be authorized by law

Officers lower in rank whose appointments, the congress may by law vest in the president alone.

Congress cannot by law require that the appointment of a person to an office created by such law shall be subject to CA confirmation. (Calderon vs. Carale)Ad interim appointments not acted upon. Ad interim appointments not acted upon at the time of the adjournment of the Congress, even if the thirty day period has not yet expired, are deemed bypassed under Article VII, Section 16. It shall only be effective: Until disapproval by the Commission on Appointments; or Until the next adjournment of Congress.Note: The Commission shall act on all appointments submitted to it within 30 session days of the Congress from the submission.

Note: The rule that the Commission on Appointments can meet only during session of the congress is the reason why ad interim appointments are permitted under the constitution. These appointments are made during recess, subject to consideration later by the commission, for confirmation or rejection. However, where the congress is in session, the president must first clear his nominations with the commission on appointments, which is why it must be constituted as soon as possible unless, it is organized; no appointment can be made by the president in the meantime. Appointments in an acting capacity need not subject to confirmation by the commission on appointments being temporary and can be revoke anytime (Pimentel vs. Ermita)

PROCEDURE/PROCESS

Submission of the nomination/appointment by the president. Upon submission of the necessary requirement, the chairman of the commission immediately refers the nomination/ appointment to the corresponding standing committee. Within three (3) days from referral- all nominations/ appointments referred shall be duly publicized in two (2) newspapers of general circulation.

After one (1) week, from publications- concerned committee then conduct public hearing to deliberate on the said nomination/ appointment, then subsequently, makes its recommendation, such will be calendared for reconsideration by the commission en banc during its plenary session. Lastly, the issuance of Certificate of Confirmation stating that he/she has successfully passed the confirmatory process and that his fitness and qualifications for the position have been established and ascertained.

COMMAND RESPONSIBILITY

HISTORICAL BACKGROUND:

In 1439, King Charles VII of Orleans promulgated an ordinance which states that his military commanders were to be held liable should those under their command commit crimes against the civilian population, irrespective of the commander's participation in the crimes.

In the early 1860s, in order to control the behavior of armies in the field, the United States government worked with Alfred Lieber, a professor at Columbia University to codify the rules governing warfare. The United States adopted the results, a document known as the Lieber Code. At the end of World War II, the doctrine of command responsibility was redefined into todays recognized standard.

ELEMENTS TO PROVE THE LIABILITY OF A MILITARY COMMANDER

In order to hold a military commander either criminally or civilly liable under the doctrine of command responsibility, the prosecution/plaintiff must prove three elements, namely:

1) those committing the atrocities/war crimes were under the command of the defendant;

2) the commander knew or should have known, based on the surrounding circumstances at the time, that the subordinates were engaging impermissible conduct; and

3) the commander failed to prevent or punish those responsible for the commission of such crimes.In the United States this legal standard was first articulated by the Supreme Court in the case of Yamashita, 327 U.S. 1(1946). In Yamashita, the court held that under the laws of war, a commander was responsible for the actions of his subordinates even if he did not directly order them to commit the crimes, provided that he knew or should have known that troops under his command were engaged in wrongful acts. As part of its holding, the court recognized that military commanders, by virtue of their position, were under an affirmative duty to act and that a failure to prevent or punish their subordinates could lead to personal criminal liability.

Such were also adopted in the Philippines, as manifested by various laws enacted and presidential issuances in both the Armed Forces of the Philippines and Philippine National Police.

The following law and executive issuances cite the principle of command responsibility as practiced in the Armed Forces of the Philippines (AFP), namely:

Commonwealth Act No. 1, known as the National Defense Act (December 21, 1935) as amended, states that:

SEC. 23.(a) The Chief of Staff shall be directly subordinate to the President of the Philippines." The above cited provision of law states that the Chief of Staff shall have direction, authority, and control over the Armed Forces of the Philippines subject only to the authority of the Secretary of National Defense and the President, including full and final authority over preparation of the planning, development, and execution of the national defense program as prescribed by the Secretary of National Defense, pursuant to his command function as authorized by the President of the Philippines. Executive Order No. 94, dated October 4, 1947, providing for the reorganization of the Armed Forces of the Philippines. It states, among other things, the following: a. "SEC. 97. The President of the Philippines is Commander-in-Chief of the Armed Forces of the Philippines. He exercises command through the Secretary of National Defense who directly represents him." b. "SEC. 98. The Chief of Staff executes the President's command functions in relation to strategy, tactics and operations. He is the immediate advisor of the Secretary of National Defense and is responsible for the planning, development and execution of the National Defense program as prescribed by the Secretary of National Defense. He has command of all elements of the Armed Forces, and in the discharge of this responsibility, the Headquarters of National Defense Forces shall function as a field Headquarters and prescribe the functions, duties and powers of the various staffs, services, installations, and other units of the Armed Forces." c. The subject of "Command Responsibility" is specifically contained in Circular No. 28, Series of 1956, Armed Forces of the Philippines, thus: 3.a. In the military service it is an axiom that the state of discipline of a command is an infallible index of the efficiency of its commander. The behavior of the members of a military unit is nothing more than a reflection of the qualities of their leader and the kind of influence he has over them. This is so because unlike other leaders, the military commander is vested with a high degree of authority over his men extending to matters normally considered individual and personal. 3.b. Responsibility in the military hierarchy belongs to the commander alone and whatever his unit does or fails to do, he is solely responsible. Command Responsibility in the Philippine National Police.Executive Order No. 226 take effects on 17th day of February 1995 which institutionalize the Doctrine of Command Responsibility in ALL GOVERNMENT OFFICES, particularly at all levels of command in the PHILIPPINE NATIONAL POLICE (PNP) and other LAW ENFORCEMENT AGENCIES.Concept:

A 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.

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.Purpose:

In order to ensure a more effective, sustained and successful campaign against erring government personnel.

Under this Executive order it provides that, any government official or supervisor or the 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 offenses; 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. (Section 1)

Under section 2 of the same law- it provides that a government official or supervisor or PNP commander is presumed to have knowledge of the commission of the irregularities or criminal offenses in any of the following circumstances:

when the irregularities or illegal acts are widespread within his area of responsibility.

when the irregularities and illegal acts have been repeatedly or regularly committed within his area of jurisdiction.

When members of his immediate staffs or office personnel are involved.

ELEMENTS/ REQUISITES of COMMAND RESPONSIBILITY:

(Petition for writ of amparo and habeas data for Noriel Rodriguez vs Gloria Macapagal Arroyo et al..) Existence of Superior-Subordinate relationship between the accused as superior and perpetrator of the crime as his subordinate.

The superior knew or had reason to know that the crime was about to be or had been committed.

The superior failed to take necessary and reasonable measures to prevent the criminal acts or punish the perpetrators there of.

APPLICABILITY OF COMMAND RESPONSIBILITY IN AMPARO PROCEEDINGS. In Rubrico vs. Arroyo and Rodriguez vs. Arroyo the court stated that, Command responsibilitypertains to the responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict.Although originally used for ascertaining criminal complicity, the command responsibility doctrine has also found application in civil cases for human rights abuses.In the United States, for example, command responsibility was used inFord v. GarciaandRomagoza v. Garcia civil actions filed under the Alien Tort Claims Act and the Torture Victim Protection Act.This development in the use of command responsibility in civil proceedings shows that the application of this doctrine has been liberally extended even to cases not criminal in nature. Thus, command responsibility may likewise find application in proceedings seeking the privilege of the writ ofamparo.It may plausibly be contended that command responsibility, as legal basis to hold military/police commanders liable for extra-legal killings, enforced disappearances, or threats, may be made applicable to this jurisdiction on the theory thatthe command responsibility doctrine now constitutes a principle of international law or customary international law in accordance with the incorporation clause of the Constitution.If command responsibility were to be invoked and applied to these proceedings,it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under existing administrative issuances, if there be any.

Precisely in both cases, the doctrine of command responsibility may be used to determine whether respondents are accountable for and have the duty to address the abduction of Rubrico and Rodriguez in order to enable the courts to devise remedial measures to protect their rights. Clearly, nothing precludes this Court from applying the doctrine of command responsibility inamparoproceedings to ascertain responsibility and accountability in extrajudicial killings and enforced disappearances. In Tagitis case, the court applied the doctrine of command responsibility in this wise;

Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise the extraordinary diligence that the Amparo Rule requires.We hold these organizations accountable through their incumbent Chiefswho, under this Decision,shall carry the personal responsibility of seeing to it that extraordinary diligence, in the manner the Amparo Rule requires,is applied in addressing the enforced disappearanceof Tagitis.

COMMAND RESPONSIBILITY in MASASAPANO DEBACLE.- DOJ Secretary De Lima claims that command responsibility is not applicable in the Philippine National Police as it was a civilian agency, the command responsibility applies only in the military, thus absolving President Aquino from being responsible over the Masasapano incident. The three panel Senate Inquiry report and former president Ramos stated otherwise:

- Executive Order 226 is very clear and categorical doctrine of command responsibility is applicable not only with the military but to all government offices particularly stating the Philippine National Police and other law enforcement agencies.

- In every organization, in the government or private sector, there is always a hierarchical structure through which authority is exercise. This is the essence of a chain of command, while the term is often associated with the military; it has been applied to hierarchical structures in civilian government agencies and private enterprises as well.

- Where there is a chain of command, the doctrine of command responsibility also generally applies

- The chain of command is established in all government even in colonized government, where officials are in chain of command. This has not been amended, so it is still exists,- Ramos

- In the context of supervision and control of the President on all executive departments, bureaus and offices as provided in Section 17, Article VII of the 1987 Constitution, the Supreme Court, in a September 2005 case, defined such term this way: in administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgmnt of the former for that of the latter.

The liability under the doctrine of command responsibility attaches only when the subordinate commits a criminal offense and the superior has knowledge of the subordinates commission of the offense and fails to either prevent its commission or punish the perpetrator, As the PNP is under the DILG, the President as chief executive exercises supervision and control over the same, thus given that the president gave the policy direction to arrest Malaysian Terrorist Zulkipli bin Hir alias Marwan and Basit Usman, and that he approved Oplan Exodus with full knowledge of its operational details, the chief executive is ultimately responsible for the success or failure of the mission.