In the Philippines, the President issued on November 19, 1999 a Memorandum “Invoking the Doctrine of Command Responsibility for Corruption in Government Offices.” Command responsibility is also mentioned in Supreme Court decisions on civil and criminal cases and one of these is Republic vs. Arias (G.R. No. 188909, September 17, 2014).
But the question is, “Can the President be held accountable under the doctrine of Command Responsibility?” I opine, Yes, he can be. He has the Constitutional mandate to “supervise” and “control” his subordinates’ acts and see to it that these are within the bounds of the law.
Can he be held liable? This is another matter. Being accountable is not synonymous with being liable. A sitting Philippine President cannot be sued, he being the Head of State (and Head of Government at the same time), under the doctrine of Non-Suability of the State (Art. XVI, Section 3. The State may not be sued without its consent).
As such sitting President, the only remedy is through impeachment to determine whether or not he is liable. On the relationship beween accountability an liability, the Supreme Court stated it in this wise:
“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” (Lourdes Rubrico, et al. vs. Gloria Macapagal-Arroyo, et al., G.R. No. 183871, February 18, 2010)
THE YAMASHITA STANDARD
Command responsibility was first used in the Philippine legal system in the trial of General Tomoyuki Yamashita, he being the Supreme Commander of the Axis power in the Philippines. He was found guilty and meted with a death penalty. He argued that he did not know anything about the atrocities committed by his subordinates and that he did not order them to do so.
But he was made accountable and eventually liable because the court said that he should have known and/or should have done something to stop the terroristic acts of his men but he chose to keep a blind eye on all those crimes.
Take note, the victors were the Allies, who acted as the complainant, prosecutor and judge in the war tribunal.
NON-INDICTMENT OF EMPEROR HIROHITO
Contrary to what an established and well-known lawyer said, Emperor Hirohito, prior to World War II, was the Commander-in-Chief of the armed forces of Japan and not merely a titular/ceremonial head. He played an active role as CiC in many wars that Japan waged against its neighboring countries and during WWII (read “War Responsibility and Historical Memory: Hirohito’s Apparition” at http://japanfocus.org/-herbert_p_-bix/2741).
He became a ceremonial figurehead with clipped powers after WWII when the “Constitution of Japan” was put into place.
(Nota Bene: The Commander-in-Chief of the United Kingdom, a Constitutional monarchy, is the King or Queen, whatever the case may be. The Prime Minister “maintains de facto authority.” Likewise in Russia, a parliamentary government, the CiC is the President (now Putin) and the Prime Minister is the Head of Government. Remember Marcos as President and Virata as PM?)
Why was he not indicted? There are accounts which state that when Japan was in the brink of losing the war, documents and papers that are attributed to him were systematically detroyed. The government covered him up. Add to this the ignorance of the western powers of the role of an emperor in a monarchy (he was seen as somebody who is peace loving and that he has no role over the military but only as a symbol of nationhood).
Even when Japan was losing, Hirohito did not choose to surrender, until the atom bombs where dropped.
When the Allies saw that every Japanese citizen is willing to die to defend their country, fighting will still continue and longer than what they wanted. Hirohito was then pressured by the Allies to make a “surrender speech” which helped end the war in the Pacific. His prime minister, Gen. Tojo Hideki was the one who took all the cudgels and was sentenced to die. It is also believed that Gen. MacArthur, who indirectly ruled Japan, deleted from the records of the trial any testimony that has reference to “Head of State.” Concessions? Maybe. Hirohito preserved his royal status albeit with less powers for decades after the war.
Let us also take note that during those times, the Japanese regard their emperor as a god and are willing to die for him. Punishing him will only make matters worse. And the victors needed him in rebuilding Japan.
THE MEDINA STANDARD AND NON-INDICTMENT OF THE US PRESIDENT
Capt. Ernest Medina was the Commander of a Company which massacred the villagers of Mai Lai in Vietnam. He ordered his men to wipe out the VietCongs in Mai Lai which he believed to be one of their strongholds. Lieutenant William Calley Jr., a platoon leader, belongs to this Company.
When they arrived at Mai Lai, much to their frustration, they only found one VietCong and all the rest are women, children and elderlies. It is said that it was Calley who ordered his men to kill all civilians (he believed are VietCong sympathizers).
Calley was court-martialled. Later, Medina was included because Calley contended that it was Medina who ordered to kill all civilians. Medina denied this accusation contending that it was Calley who actively participated in the slaughter.
Medina was found not guilty. Calley was sentenced to life imprisonment but the penalty was reduced to 3 and 1/2 years of “house arrest.”
Many believed that Calley was just a scapegoat and that the trial was just a sham.
If Medina was found not liable, how much more the US President who fully sanctioned the Vietnam missions.
The US policy of waging a war against the VietCongs was not the President’s act alone. It was a State act. The President sought the consent and approval of the US Congress (Senate and House of Representatives). So, if we indict the President, we should indict the whole State of the United States of America. Again, we come again to the principle of State non-suability.
Further, Medina and Calley are Americans and tried on an American soil for acts committed against a foreign country. There is already a discrimination as such unlike with that of Yamashita. These boys may had even been regarded as heroes by their countrymen. If they have been tried in a VietCong court, for sure the death penalty is the only punishment avaiable.