¹ 5 U.S. (1 Cranch) 137 (1803) at 163.

² State of the Nation Address, Joint Opening Session of the 14th Congress (23 July 2007), online: Republic of the Philippines <http://www.gov.ph/news/?i=18238>.

³ Estimates of the number of leftists, journalists, student activists, farmers, priests, and other dissenters murdered or abducted vary, and understandably so, from several hundred to almost a thousand. From field reports, NGOs and human rights organizations have culled detailed summaries and provided the necessary context. The organization Karapatan (‘Rights’) reports the number of victims of extrajudicial, summary or arbitrary execution under the Arroyo Government at 887, with 68 reported killings from January to October 2007, 209 in 2006, 187 in 2005, 83 in 2004, 123 in 2003, 118 in 2002, and 99 in 2001. See “Dangerous Regime, Defiant People - Karapatan 2007 Human Rights Report”, online: Stop the Killings in the Philippines <http://stopthekillings.org>. For international reports, see “Scared Silent: Impunity for Extrajudicial Killings in the Philippines (2007)”, online: Human Rights Watch <http://www.hrw.org./report/2007/philippines0607/index.htm>; “Philippines: Political Killings, Human Rights & The Peace Process (2006)”, online: Amnesty International <http://www.amnesty.org/en/library/info/ASA35/006/2006>. According to the Community to Protect Journalists’ Impunity Index, in absolute numbers, the Philippines ranks as the second most dangerous country for journalists to practice their profession, with 24 unsolved murders (next to 79 for Iraq) from 1998 to 2007. See “Getting Away With Murder”, online: CPJ Press Freedom Online <http://www.cpj.org/impunityindex/>.

⁴ See Phil. Const., art. XI, §§2-3.

⁵ See Alston, Philip, Report of the Office of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, in the Philippines, UN GAOR, 8^th Sess., UN Doc A/HRC/8/3/Add. 2 (2008)Google Scholar [Alston Report], in which Prof. Philip Alston notes: “The military is in a state of denial concerning the numerous extrajudicial executions in which its soldiers are implicated. Some military officers would concede that a few killings might have been perpetrated by rogue elements within the ranks, but they consistently and unequivocally reject the overwhelming evidence regarding the true extent of the problem.”

⁶ Republic Act No. 386 (19 June 1949), which provides:

Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: …

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain a periodical publication;

(4) Freedom from arbitrary or illegal detention;…

(9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures;…

(12) The right to become a member of associations or societies for purposes not contrary to law;

(13) The right to take part in a peaceable assembly to petition the Government for redress of grievances; …

In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.…

⁷ Attribution in international law for violation of the laws of war, from Yamashita to Milosevic, has always referred to criminal responsibility, from imprisonment to imposing the death penalty, and tribunals have always taken the form of criminal courts. For a historical survey of the concept of command responsibility, see Triffterer, Otto, “Causality, a Separate Element of the Doctrine of Superior Responsibility as Expressed in Article 28 Rome Statute?” (2002) 15 Leiden J. Int'l L. 179 CrossRefGoogle Scholar; Green, L.C., “Command Responsibility In International Humanitarian Law” (1995) 5 Transnat'l L. & Contemp. Probs. 319 Google Scholar.

⁸ Phil. Const., art. VII, §17: “The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.”

⁹ 42 U.S.C. §1983 (2006), which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

¹⁰ See Yamashita v. Styer, G.R. No. L-129, 75 Phil. 563 (1945)Google Scholar; Kuroda v. Jalandoni, G.R. No. L-2662, 83 Phil. 171 (1949)Google Scholar.

¹¹ See Agabin, Pacifico, “Presidential Immunity and All The King's Men: The Law of Privilege as a Defense To an Action for Damages” (1987) 62 Phil. L.J. 113 Google Scholar. The article was cited in the decision of the Philippine Supreme Court in Estrada v. Desierto, G.R. Nos. 146710-5 (2 March 2001).

¹² 16 Phil. 534 (1910), dismissing a civil suit against the American Governor-General of the Philippines by a Chinese businessman for illegal expulsion and deportation. Aff'd Chuoco Tiaco v. Forbes, 228 U.S. 549 (1913)Google Scholar. Interestingly, the entire basis of the affirmation had nothing to do with the immunity of the governor-general from personal suits. The decision of the Philippine Supreme Court was affirmed on the ground that three weeks after the original suit was filed, the Philippine legislature passed a statute confirming the authority of the governor-general. The U.S. Supreme Court held that the statute, in effect, validated the executive action and thus immunized the governor-general from personal liability.

¹³ See Phil. Const., art. XI.

¹⁴ During the 14 March 2007 hearing before the United States Senate regarding what policies may be adopted by the federal government, which allocates funding for the training of the Philippine Army, Amnesty International USA noted that “[i]t is disturbing to note that, even though hundreds have been killed so far, to date there has not been a single conviction.” Kumar, T., “Extrajudicial Killings in the Philippines”, online: Amnesty International USA <http://www.amnestyusa.org/document.php?lang=e&id=ENGUSA20070314001>>Google Scholar. In its 2008 Freedom of the World Survey, Freedom House downgraded the Philippines from “free” to “partly-free” because, among other things, of the unresolved killings of journalists and dissenters, “Map of Freedom 2008: Philippines (2008)”, online: Freedomhouse.org <http://www.freedomhouse.org/template.cfm?page=22&year=2008&country=7470>.

¹⁵ “National Summit on Extrajudicial Killings”, online: Supreme Court of the Philippines <http://www.supremecourt.gov.ph/publications/summit/>.

¹⁶ A.M. No. 07-9-12-SC (25 September 2007).

¹⁷ A.M. No. 08-1-16 (22 January 2008).

¹⁸ Created under Administrative Order No.157 (s.2006) [MCR]. A copy of the report is available at Melo, Jose A. R., “Independent Commission to Address Media and Activist Killings”, online: Office of the Press Secretary <www.news.ops.gov.ph/melo%20commission%20report.doc>>Google Scholar. Incidentally, the government initially refused to release a copy of the report to the public at the height of the UN Human Rights Council's investigation on the extrajudicial executions in the country. See Dalangin-Fernandez, Lira, “Police won't release Melo Commission report”, online: Inquirer.net <http://newsinfo.inquirer.net/breakingnews/nation/view_article.php?article_id=49484>>Google Scholar.

¹⁹ Ibid. at 1.

²⁰ Press Statement, “Extrajudicial Killings have a corrosive effect on civil society and public discourse in the Philippines, says UN independent expert at end of visit” (21 February 2007) [UNHCHR Press Statement], online: <http://www.unhchr.ch/huricane/huricane.nsf/view01/F90A40ACDFB45C3DC125728A004C59C2?opendocument>>Google Scholar.

²¹ MCR, supra note 18 at 48, acknowledges this, stating that “the killings of activists were invariably laid at the doorstep of the military.”

²² See Hilao v. Estate of Ferdinand Marcos, 103 F.3d 767 (9^th Cir. 1996), in which the U.S Court of Appeals for the 9^th Circuit affirmed the judgment of the District Court awarding a class $1.2 billion in exemplary damages and $766 million in compensatory damages for human rights violations committed during the Marcos regime. The decision opens with a powerful descriptive, at 771: “This case arises from human-rights abuses—specifically, torture, summary execution, and ‘disappearance’—committed by the Philippine military and paramilitary forces under the command of Ferdinand E. Marcos during his nearly 14-year rule of the Philippines.” See also “Philippines: Political Killings, Human Rights & The Peace Process”, supra note 3.

²³ Most notorious among them is retired General Jovito Palparan. See MCR, supra note 18; “Scared Silent: Impunity for Extrajudicial Killings in the Philippines”, supra note 3.

²⁴ UNHCHR Press Statement, supra note 20 at 5:

The AFP remains in a state of almost total denial (as its response to the Melo Report amply demonstrates) of its need to respond effectively and authentically to the significant number of killings which have been convincingly attributed to them. The President needs to persuade the military that its reputation and effectiveness will be considerably enhanced, rather than undermined, by acknowledging the facts and taking genuine steps to investigate. When the Chief of the AFP contents himself with telephoning Maj-Gen. Palparan three times in order to satisfy himself that the persistent and extensive allegations against the General were entirely unfounded, rather than launching a thorough internal investigation, it is clear that there is still a very long way to go.

A more detailed instance of Gen. Esperon's lack of interest in investigating these matters is narrated by one of the mothers of the disappeared in “Statement of Edith T. Burgos”, online: Free Jonas Burgos Movement <http://freejonasburgosmovement.com/jonasmotherstatement.htm>.

²⁵ See Thompson, Mark R., The Anti-Marcos Struggle: Personalistic Rule and Democratic Transition in the Philippines (New Haven: Yale University Press, 1996) at 3 Google Scholar: “During the dictatorship large parts of the armed forces became, in effect, Marcos’ praetorian guard.”

²⁶ UNHCHR Press Statement, supra note 20 at 5.

²⁷ Alston, Philip, “Preliminary Note on The Visit of The Special Rapporteur on Extrajudicial, Summary or Arbitrary executions” [Alston Preliminary Note], online: Project on Extrajudicial Executions <http://www.extrajudicialexecutions.org/report/A_HRC_4_20_Add_3.pdf>>Google Scholar.

²⁸ Llewellyn, Karl, “The Constitution As An Institution” (1934) 34 Colum. L. Rev 1 CrossRefGoogle Scholar.

²⁹ See Sunstein, Cass R., Democracy And The Problem Of Free Speech (New York: The Free Press, 1993)Google Scholar; Meiklejohn, Alexander, Free Speech & Its Relation To Self-Government (New York: Harper Brothers Publishers, 1948)Google Scholar.

³⁰ Phil. Const., art. II, §1.

³¹ Phil. Const., art. III, §4.

³² Phil. Const., art. VII, §1: “The executive power shall be vested in the President of the Philippines.”

³³ It is sound to say that the Legislature has a role to play in this matter through legislative inquiries and other forms of oversight that can publicize the concerns of the elected representatives at the ground level. This power, though potent, is undermined by the fact that the Lower House is dominantly controlled by supporters of the President, which explains why efforts of civil society and the political opposition to impeach her have failed so far; and the Senate which, though willing to investigate, has had difficulty proceeding because of the order of the President to prevent members of the Executive Department, including the military and the police, from testifying without her consent. See Senate of the Philippines v. Ermita, 488 SCRA 1 (2006).

³⁴ Phil. Const., art. VII, §18.

³⁵ See Rossiter, Clinton, The American Presidency (Baltimore: The John Hopkins University Press, 1960) at 5 Google Scholar.

³⁶ Cf. Hilbay, Florin T., “Tyrannosaurus Text and The Doctrinal Slip: PP1017 and The Problematics of Executive Legislation”, (2006) 81 Phil. L.J. 1 Google Scholar.

³⁷ Phil. Const., art.VII, §17. This clause appears in previous Philippine Constitutions which, in turn, were copied from Art.II, §3 of the U.S. Constitution which directs that “[the President] take Care that the Laws be faithfully executed.…”.

³⁸ Marcos v. Manglapus, G.R. No. 88211 (27 October 1989).

³⁹ David v. Macapagal-Arroyo, G.R. No. 171396 (3 May 2006).

⁴⁰ Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)Google Scholar. See Lessig, Lawrence & Sunstein, Cass, “The President and the Administration”, (1994) 94 Colum. L. Rev. 1 CrossRefGoogle Scholar, noting that “unlike the other power clauses of Article II [of the U.S. Constitution], the Take Care Clause is expressed as a duty rather than a power.”

⁴¹ See Burlington Industries, Inc. v. Ellerth, 524 U.S. 74 (1998)Google Scholar, imposing vicarious liability on the employer for actionable hostile environment created by a supervisor; Faragher v. City of Boca Raton, 524 U.S. 775 (1998)Google Scholar, allowing the employer to raise an affirmative defense that looks to the reasonableness of the employer's conduct in seeking to prevent and correct harassing conduct and to the reasonableness of the employee's conduct in seeking to avoid harm.

⁴² Republic Act No. 7877 (14 February 1995)

⁴³ The relevant text of §4 provides: Duty of the Employer or Head of Office in a Work-related, Education or Training Environment.—It shall be the duty of the employer or the head of the work-related, education or training environment or institution, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. Towards this end, the employer or head of office shall:

(a) Promulgate appropriate rules and regulations in consultation with and jointly approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation of sexual harassment cases and the administrative sanctions therefor.…

(b) Create a committee on decorum and investigation of cases on sexual harassment. The committee shall conduct meetings, as the case may be, with officers and employees, teachers, instructors, professors, coaches, trainors and students or trainees to increase understanding and prevent incidents of sexual harassment. It shall also conduct the investigation of alleged cases constituting sexual harassment.…

⁴⁴ Ibid., §5.

⁴⁵ Ibid., §6.

⁴⁶ Phil. Civil Code, art. 2176: “Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.” Art. 2180 provides:

The obligation imposed by article 2176 is demandable not only for one's own act or omission, but also for those of persons for whom one is responsible.… The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within their assigned tasks, even though the former are not engaged in any business or industry.… The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

⁴⁷ Phil. Revised Penal Code, art.102 provides: “Subsidiary Civil Liability of Innkeepers, Tavernkeepers, and Proprietors of Establishments.—In default of the persons criminally liable, innkeepers, tavernkeepers, and any other person or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees.…” Art. 103 provides: “Subsidiary Civil Liability of Other Persons.—The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties.”

⁴⁸ See Barredo v. Garcia, G.R. No. L-4057 (31 March 1952); Metro Manila Transit Corporation v. Court of Appeals, G.R. No. 104408 (21 June 1993); Jose v. Court of Appeals, G.R. No.118441 (18 June 2000).

⁴⁹ Tolentino, Arturo, Commentaries and Jurisprudence On The Civil Code Of The Philippines (Quezon City: Central Professional Books, Inc, 1992) at 611 Google Scholar.

⁵⁰ See Santos v. BLTB Co., Inc., G.R. No. L-26810 (31 August 1970); Franco v. Intermediate Appellate Court, G.R. No. 71137 (5 October 1989).

⁵¹ See “Proceedings of the public hearing of the Joint Senate and House Code Committees” (31 May 1951) XVI The Lawyers' Journal, No. 5 at 258 Google Scholar:

Dean Bocobo: The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is the effective protection of individual rights. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties. Precisely, the object of the Article is to put an end to official abuse by the plea of good faith. In the United States this remedy is in the nature of a tort.

⁵² Tolentino, Arturo, Commentaries and Jurisprudence On The Civil Code Of The Philippines (Quezon City: Central Professional Books, Inc, 1992) at 129 Google Scholar.

⁵³ Report, Code Commission, 31 (26 January 1948). See Silahis International Hotel, Inc. v. Soluta, G.R. No. 163087 (20 February 2006).

⁵⁴ Sison, Carmelo, ed., The Civil Code Reader (Manila: U.P. Law Center 2006), citing the Report of the Code Commission, at 541–742 Google Scholar.

⁵⁵ See Lui v. Matillano, G.R. No. 141176 (27 May 2004); MHP Garments, Inc. v. Court of Appeals, G.R. No. 86720 (2 September 1984).

⁵⁶ No. L-69866 (15 April 1988).

⁵⁷ Ibid. at 595.

⁵⁸ Ibid. at 606: “No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen.”

⁵⁹ See Cojuangco, Jr. v. Court of Appeals, G.R. No. 119398 (2 July 1999); Obra v. Court of Appeals, G.R. No. 120852 (28 October 1999).

⁶⁰ Lim v. Ponce de Leon, No. L-2554 (29 August 1975).

⁶¹ See Vinzons-Chato v. Fortune Tobacco Corporation, G.R. No.141309 (19 June 2007).

⁶² See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) at 389 Google Scholar, holding that a violation of the Fourth Amendment “by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct.”

⁶³ In contrast, Bivens actions are judicially-created causes of action which the U.S. Supreme Court justified on functional grounds:

“The present case involves no special factors counseling hesitation in the absence of affirmative action by Congress. We are not dealing with a question of ‘federal fiscal policy’.… Nor are we asked in this case to impose liability upon a congressional employee for actions contrary to constitutional prohibition, but merely said to be in excess of the authority delegated to him by the Congress. Finally, we cannot accept respondents’ formulation as to whether the availability of money damages is necessary to enforce the Fourth Amendment.” (internal citations omitted). Ibid. at 396-397.

⁶⁴ Phil. Const., art. II, §2: “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to a policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”

⁶⁵ It is not the mere fact of relationship that opens the superior to liability. See Aberca v. Ver, supra note 56 at 605: “The doctrine of respondeat superior has been generally limited in its application to principal and agent or to master and servant (i.e., employer and employee) relationship. No such relationship exists between superior officers of the military and their subordinates.”

⁶⁶ As the experience of the Yugoslavia and Rwanda tribunals and an analysis of Article 28 of the Rome Statute, infra note 89, reveal, there are various forms of superior responsibility which ultimately depends upon the specific factual settings in different cases, which have practical implications in the degree of attribution and, ultimately, the punishment that may be imposed on the superior. See Meloni, Chantal, “Command Responsibility: Mode Of Liability For The Crimes Of Subordinates Or Separate Offense Of The Superior?” (2007) 5 Journal of International Criminal Justice 619 CrossRefGoogle Scholar, discussing the possible ramification of “should have known,” “gross negligence,” “failure to prevent,” “failure to punish” standards as available vocabularies to describe the different features of superior responsibility. For a discussion of the different forms of superior responsibility under Article 28, see Volker Nerlich, “Superior Responsibility Under Article 28 ICC Statute” (2007) 5 Journal of International Criminal Justice 665.

⁶⁷ See Hansen, Victor, “What's Good For The Goose Is Good For The Gander Lessons From Abu Ghraib: Time For The United States To Adopt A Standard Of Command Responsibility towards Its Own” (2007) 42 Gonz. L. Rev. 335 at 348 Google Scholar. The commander's liability is derived from his relationship to his subordinates and the link between his act or omission and the crimes committed by his subordinates.

⁶⁸ Paust, Jordan J., “Superior Orders and Command Responsibility” in Bassiouni, M. Cherif, ed., International Criminal Law, 2d ed. (Ardsley, N.Y.: Transnational Publishers, 1998) at 237 Google Scholar.

⁶⁹ Bonafé, Beatrice, “Finding A Proper Role For Command Responsibility”, (2007) 5 Journal of International Criminal Justice 599 CrossRefGoogle Scholar.

⁷⁰ Arthur O'Reilly, Thomas, “Command Responsibility: A Call To Realign Doctrine With Principles”, (2004) 20 Am. U. Int'l L. Rev. 71 at 73 Google Scholar.

⁷¹ See L. C. Green, supra note 7.

⁷² For a survey of the 20^th century history of the doctrine of command responsibility, see Lippman, Matthew, “The Evolution And Scope Of Command Responsibility”, (2000) 13 Leiden Journal of International Law 139 CrossRefGoogle Scholar.

⁷³ For a generalized context of the development of command responsibility in the 20^th century in relation to international criminal law, see Danner, Allison & Martinez, Jenny, “Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law”, (2005) 93 Cal. L. Rev. 75 Google Scholar.

⁷⁴ See Yamashita v. Styer, 327 U.S. 1 (1946)Google Scholar, Murphy J., dissenting at 26-27, pointed out: “The immutable rights of the individual. belong not alone to the members of those nations that excel on the battlefield or that subscribe to the democratic ideology. They belong to every person in the world, whatever may be his race, color or beliefs.” See also, Guy, George F., “The Defense of General Yamashita”, (1950) 4 Wyo. L. J. 153 Google Scholar. The narration of George Guy is particularly interesting, having been one of Gen. Yamashita's military counsel during his defense.

⁷⁵ See Lippman, supra note 72 at 167: “[t]he penal doctrine of command responsibility is designed to provide military commanders and civilian superiors with an incentive to control the conduct of their troops. This is part of a constellation of rules which are intended to preserve the humanitarian impulse underlying the law of war.”

⁷⁶ In re von Leeb and Others (The High Command Trial) (1948), 12 United Nations War Crimes Commission, Law Reports Of Crimes Of War Criminals 1Google Scholar.

⁷⁷ In re List and Others (The Hostages Trial), (1949) 8 United Nations War Crimes Commission, Law Reports Of Crimes Of War Criminals 34Google Scholar.

⁷⁸ For a study of the context of the war in the Philippines and the subsequent prosecution of Yamashita, see Lael, Richard, The Yamashita Precedent: War Crimes & Command Responsibility (Wilmington, Delaware: Scholarly Resources, 1982)Google Scholar.

⁷⁹ See Landrum, Bruce, “The Yamashita War Crimes Trial: Command Responsibility Then and Now”, (1995) 149 Mil. L. Rev. 293 at 294 Google Scholar: “General Yamashita had no way of knowing that he would be judged against the strictest standard ever devised to hold a commander responsible for the actions of his subordinates. Not only was he at the wrong place and time when he took command of the 14^th Area Army, he also was at the wrong place and time when he was captured and tried as a war criminal the following year.”

⁸⁰ Yamashita v. Styer, supra note 10 at 578.

⁸¹ Ibid. at 596. The universalist language of the Supreme Court was clearest in Justice Perfecto's concurrence:

(7) That in violation of the law of nations, the offended party is the people of the whole world, and the case against petitioner could be properly entitled as “Humanity versus Tomoyuki Yamashita,” and no person in position to prosecute the violators can honesty shirk the responsibility of relentlessly prosecuting them, lest he be branded with the stigma of complicity.(8) That the absence of a codified International Penal Code or of a criminal law adopted by the comity of nations, with specific penalties for specific and well-defined international crimes, is not a bar to the prosecution of war criminals, as all civilized nations have provided in their laws the necessary punishment for war crimes which, for their very nature, cease to be lawful acts of war, and become ordinary crimes with the extraordinary character of having been committed as an aggravating circumstance.

⁸² Yamashita v. Styer, supra note 74.

⁸³ Ibid. at 6.

⁸⁴ Ibid. at 14-15.

⁸⁵ L.C. Green, supra note 7 at 371: [T]here can be no doubt that the principle of command responsibility in armed conflict has been sufficiently recognized and applied in practice to prevent any possibility of such liability being denied in the future, whether the accused is a political or a military superior, whether he has issued an order or failed to control or suppress those under his command. It is also of no consequence whether charges are brought for war crimes in the traditional sense, either for crimes against humanity or for breaches of humanitarian law.

⁸⁶ Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1), 8 June 1977. 1125 U.N.T.S. 3, 16 I.L.M. 1391 Google Scholar.

⁸⁷ Article 7(3): The fact that any of the acts referred to in article 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. See Statute of the International Tribunal for the Former Yugoslavia, SC Res 827, UN SCOR, 48th Sess., 3217th Mtg., UN Doc. S/RES/927 (1993), online: United Nations <http://www.un.org/icty/legaldoc-e/basic/statut/statute-feb08-e.pdf>.

⁸⁸ Article 6(3): The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. See Statute of the International Tribunal for Rwanda, SC Res 955, UN SCOR 49th Sess., 3453rd Mtg., UN Doc. S/RES/955 (1994), online: <http://69.94.11.53/ENGLISH/basicdocs/statute/2007.pdf>.

⁸⁹ Rome Statute of the International Criminal Court, 17 July 1998, UN Doc A/CONF. 183/9, 37 I.L.M. 1007 (1998); 2187 U.N.T.S. 90, Article 28, online: ICC <http://www.icc-cpi.int/about/Official_Journal.html>:

Responsibility of commanders and other superiors.—(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.,

⁹⁰ Phil. Const. Of 1935, art. II, §3: “The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation.” Article II, §2 of the present Constitution embodies the same declaration, supra note 64.

⁹¹ 83 Phil. Rep. 171 (1949).

⁹² Establishing A National War Crimes Office and Prescribing Rules and Regulations Governing The Trial of Accused War Criminals (29 July 1947).

⁹³ Kuroda v. Jalandoni, supra note 10 at 176.

⁹⁴ Ibid. at 177.

⁹⁵ Ibid. at 178.

⁹⁶ See Vetter, Greg R., “Command Responsibility Of Non-Military Superiors In The International Criminal Court”, (2000) 25 Yale J. Intl'l L. 89, comparing command responsibility between military and non-military superiorsGoogle Scholar.

⁹⁷ Beatrice Bonafé, supra note 69.

⁹⁸ Phil. Const., art. II, §3: “Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.”

⁹⁹ Phil. Const., art.VII, §16: “The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consults, 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.”

¹⁰⁰ Justice Murphy conceded that “brutal atrocities inflicted upon the helpless Filipino people, to whom tyranny is no stranger, by Japanese armed forces under the petitioner's command [was] undeniable.” Starvation, executions or massacre without trial, torture, rape, murder and wanton destruction of property were foremost among the outright violations of the laws of war and of the conscience of a civilized world: Yamashita, supra note 73 at 29; See also George Guy, supra note 73 at 158, “The proof of murder, torture, rape, and maltreatment of thousands of Filipinos and of hundreds of Americans and of some scores of other nationalities, was clear and overwhelming.”

¹⁰¹ This was exactly the fate of at least one petition for habeas corpus filed against Gen. Palparan by the wife of one of the desaparecidos. See Esguerra, Christian V. & Salaverria, Leila, “Appellate Court Junks Case Against Palparan” Inquirer.net (4 July 2007), online: Inquirer.net <http://opinion.inquirer.net/inquireropinion/letterstotheeditor/view_article.php?article_id=74252>Google Scholar. To date, the Supreme Court has ordered the President and the Chief of Staff of the Military to respond to the petition for habeas corpus filed by Editha Burgos, mother of the disappeared Jonas Burgos.

¹⁰² MCR, supra note 18 at 50 states that “despite the refusal of activist groups to cooperate, and regardless of the question of their legitimacy, certain facts, taken together with admissions and statements by the witnesses, lead the Commission to conclude that there is some circumstantial evidence that a certain group in the military, certainly not the whole military organization, is responsible for the killings. To maintain otherwise would be closing one's eyes to reality.”

¹⁰³ Foremost in Alston's set of “interim recommendations” is for the government to “immediately direct all military officers to cease making public statements linking political or other civil society groups to those engaged in armed insurgencies.” See Alston Preliminary Note, supra note 27. As highlighted by the MCR, supra note 18 at 77: “even assuming that these victims and these ‘enemies of the state’ are indeed guilty of crimes against the nation, they have not been convicted of the said offenses. If some military elements indeed had reason to believe that these persons were NPA (communist rebels) agents or operatives, then they could have simply instituted the proper criminal actions against them and had them arrested. By declaring persons enemies of the state, and in effect, adjudging them guilty of crimes, these persons have arrogated unto themselves the power of the courts and of the executive department.”

¹⁰⁴ For details of the story of Jonas Burgos, see online: Free Jonas Burgos Movement <http://freejonasburgosmovement.blogspot.com/>.

¹⁰⁵ Martinez, Jenny, “Understanding Mens Rea in Command Responsibility”, (2007) 5 Journal of International Criminal Justice 638 at 640 CrossRefGoogle Scholar.

¹⁰⁶ Wu, Timothy and Kang, Yong-Sung, “Criminal Liability For The Actions of Subordinates—The Doctrine of Command Responsibility and Its Analogues In United States Law”, (1997) 38 Harv. Int'l L. J. 272 at 7Google Scholar.

¹⁰⁷ Judgment (IT-96-21-T), Trial Chamber, 16 November 1998, §346.

¹⁰⁸ Ibid., §383. For an interpretation of the mens rea standard as imposing a “duty of knowledge,” see Jenny Martinez, supra note 105.

¹⁰⁹ See “Dangerous Regime, Defiant People”, and “Scared Silent: Impunity for Extrajudicial Killings in the Philippines”, supra note 3.

¹¹⁰ See “Philippines: Political Killings, Human Rights & The Peace Process”, supra note 3.

¹¹¹ MCR, supra note 18 at 5.

¹¹² Ibid. at 48.

¹¹³ Ibid. at 52 [emphasis in the original].

¹¹⁴ Delalic, supra note 107.

¹¹⁵ MCR, supra note 18 at 20.

¹¹⁶ Ibid. at 28:

So if I have, within my capacity to prevent it, I would prevent the same. But in the course of our campaign, I could have encouraged people to do that. So maaaring may responsibility ako doon, [I may have some responsibility] on that aspect. But how could I prevent that, we are engaged in this conflict. All my actuations really are designed to defeat the enemy. And in doing so, others might have been encouraged to take actions on their own…. whoever did this…could have been encouraged by my actions and actuations in the course of my campaign, whoever they are. That is why I said relatively. If there are some soldiers, maybe then, I could have been remiss in that aspect. But we are doing our best to keep our soldiers within our mandate.

¹¹⁷ Ibid. at 50. In another portion of the report, at 53, the MCR reported:

General Palparan's statements and cavalier attitude towards the killings inevitably reveals that he has no qualms about the killing of those whom he considers his enemies, whether by his order or done by his men independently. He mentions that if his men kill civilians suspected of NPA connection, ‘it is their call,’ obviously meaning that it is up to them to do so. This gives the impression that he will not order the killings, but neither will he order his men to desist from doing so. Under the doctrine of command responsibility, General Palparan admitted his guilt of the said crimes when he made this statement. Worse, he admittedly offers encouragement and ‘inspiration’ to those who may have been responsible for the killings.

¹¹⁸ Ibid. at 53.

¹¹⁹ Ibid.

¹²⁰ See Agabin, Pacifico A., “Accountability Of The President Under The Command Responsibility Doctrine” (2008) 82 Phil. L. J. 29 Google Scholar. This article was also presented during the Supreme Court's impunity summit, online: <http://www.supremecourt.gov.ph/publications/summit/Summit%20Papers/Agabin%20%20Accountability%20oP/o20the%20President.pdf>.

¹²¹ See Amar, Akhil Reed, “Prosecuting Presidents” (1999) 27 Hofstra L. Rev. 671 Google Scholar; Freedman, Eric M., “Protecting Accountability”, (1999) 27 Hofstra L. Rev. 677 Google Scholar.

¹²² For a discussion of the history of immunity in the United States, see Matraia, Michael T., “Running For Cover Behind Presidential Immunity: The Oval Office as Safe Haven From Civil Suits” (1995) 29 Suffolk U. L. Rev. 195 at 199–224 Google Scholar; Long, Jennifer, “How to Sue the President: A Proposal for Legislation Establishing the Extent of Presidential Immunity” (1995) 30 Val. U. L. Rev. 283 (1995)Google Scholar.

¹²³ Phil. Const., art. XVI, §3: “ The State may not be sued without its consent.”

¹²⁴ “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

¹²⁵ See Republic v. Feliciano, G.R. No. L-7-853 (12 March 1987); Philippine Rock Industries v. Board of Liquidators, G.R. No. L-74322 (29 July 1988); United States v. Quinto, G.R. No. 76607 (26 February 1990); Republic v. Sandiganbayan, G.R. No. 88537 (17 April 1990); Fontanilla v. Maliaman, G.R. No. 55963 (27 February 1991); The Holy See v. Rosario, G.R. No.101949 (1 December 1994).

¹²⁶ See Sanders v. Veridiano, G.R. No. L-46930 (10 June 1988); United States v. Quinto, ibid.; Republic v. Court of Appeals, G.R. No. 86147 (26 February 1990); United States v. Reyes, G.R. No. 79253 (1 March 1993); Lansang v. Court of Appeals, G.R. No. 102667 (23 February 2000).

¹²⁷ Forbes v. Chuoco Tiaco, supra note 12. Cf. Stein, Theodore P., “Nixon v. Fitzgerald: Presidential immunity As A Constitutional Imperative”, (1983) 32 Cath. U. L. Rev. 759 at 762–763 Google Scholar: “Although the notion that the King can do no wrong survives today in American jurisprudence in the doctrine of sovereign immunity, American courts have relied exclusively on public policy grounds for according immunity from civil liability to judges and executive branch officials.”

¹²⁸ See II Records Of The Constitutional Commission Of 1986 (29 July 1986) at 423 Google Scholar.

¹²⁹ Ibid.:

Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out this second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the President shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigations, as the President-in-exile in Hawaii is now facing litigations almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit. Mr. Suarez. So there is no need to express it here?

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things.

¹³⁰ Indeed, it was testament to Marcos's tendency for overkill that, notwithstanding an immunity clause in the 1973 Constitution (Article VII, §7 of which provided that “[t]he President shall be immune from suit during his tenure”) giving him protection during his tenure, he had the immunity expanded by amending the constitution to protect all his and his cronies' acts even after their tenure.

¹³¹ G.R. No.171396 (3 May 2006).

¹³² Ibid. at 224 [emphasis in original].

¹³³ See In re: Saturnino V. Bermudez, No. L-76180 (24 October 1986), dismissing a petition for declaratory relief questioning whether then-president Corazon Aquino was the President referred to in the 1987 Constitution on the ground that “incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure”; See also Lecaroz v. Sandiganbayan, No.L-56384 (22 March 1984): “to allow a public officer who may be removed solely by impeachment to be charged criminally while holding his office with an offense that carries the penalty of removal from office, would be violative of the clear mandate of the fundamental law.” In Re: RaulM. Gonzales, Adm. Matter No.88-4-5433 (15 April 1988):

a member of the Supreme Court must first be removed from office via the constitutional route of impeachment under §§2&3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he may then be held to answer either criminally or administratively (by disbarment proceedings) for any wrong or misbehaviour that may be proven against him in appropriate proceedings.

Cuenco v. Fernan, Adm. Case No.3135, (17 February 1988): “To grant a complaint for disbarment of a Member of the Court during the Member's incumbency, would in effect be to circumvent and hence to run afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI(2) of the Constitution”; Jarque v. Desierto, A.C. No.4509 (5 December 1995):

[The Court is not here saying that the Ombudsman and other constitutional officers who are required by the Constitution to be members of the Philippine Bar and are removable only by impeachment, are immunized from liability for possible criminal acts or for violation of the Code of Professional Responsibility or other claimed misbehavior. What the Court is saying is that there is here a fundamental procedural requirement which must be observed before such liability may be determined and enforced. The Ombudsman or his deputies must first be removed from office via the constitutional route of impeachment under [the Constitution].

¹³⁴ Supra note 11.

¹³⁵ Ibid. at 522.

¹³⁶ Ibid. at 521.

¹³⁷ Ibid. at 522.

¹³⁸ Ibid. at 524.

¹³⁹ See David v. Macapagal-Arroyo, supra note 39 at 275. The dispositive portion of the decision held:

WHEREFORE, the Petitions are partly granted. The Court rules that PP1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of PP1017 command the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over privately-owned public utility or business affected with public interest without prior legislation. …The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL.

¹⁴⁰ This is exactly why all actions of the President, when challenged before the courts, always implead the Executive Secretary or some other alter ego as a respondent.

¹⁴¹ G.R. No.178497 (pending).

¹⁴² 16 July 2007.

¹⁴³ Forbes v. Chuoco Tiaco, supra note 12 at 649.

¹⁴⁴ Ibid. at 645.

¹⁴⁵ Ibid. at 649.

¹⁴⁶ Only three sitting American Presidents have been defendants in civil litigation involving their actions prior to taking office. Complaints against Theodore Roosevelt and Harry Truman had been dismissed before they took office; the dismissals were affirmed after their respective inaugurations. Two companion cases arising out of an automobile accident were filed against John F. Kennedy in 1960 during the presidential campaign. After taking office, he unsuccessfully argued that his status as commander in chief gave him a right to stay under the Soldiers’ and Sailors’ Civil Relief Act of 1940. The motion for stay was denied by the District Court and the matter was settled out of court. See Clinton v. Jones, 520 U.S. 681 (1997) at 692 Google Scholar. See also Turley, Jonathan, “‘From Pillar To Post’: The Prosecution Of American Presidents” (2000) 37 Am. Crim. L. Rev. 1049 Google Scholar.

¹⁴⁷ See Freedman, Eric M., “The Law as King and the King as Law: Is a President Immune from Criminal Prosecution Before Impeachment?” (1992) 20. Hastings Const L. Q. 7 Google Scholar.

¹⁴⁸ See Nixon v. United States, 506 U.S. 224 (1993)Google Scholar. Nixon, a former Chief Judge of the United States District Court for the Southern District of Mississippi, was convicted by a jury of two counts of making false statements before a federal grand jury and sentenced to prison. The investigation stemmed from reports that Nixon had accepted a gratuity from a Mississippi businessman in exchange for asking a local district attorney to halt the prosecution of the businessman's son. Because Nixon refused to resign from his office as a United States District Judge, he continued to collect his judicial salary while serving out his prison sentence, which prompted the House of Representatives to impeach him.

¹⁴⁹ See Joseph Isenbergh, “Impeachment and Presidential Immunity from Judicial Process”, (1999) 18 Yale L. & Pol'y Rev. 53; Jonathan Turley, supra note 146; Akhil Amar, supra note 121.

¹⁵⁰ 457 U.S. 735 (1982).

¹⁵¹ Ibid.

¹⁵² Nixon initially assumed responsibility for Fitzgerald's firing, but later on recanted. Ibid. at 737.

¹⁵³ See Michael T. Matraia, supra note 122 at 207: “The functional approach requires courts to focus on the official's allegedly harmful act and determine if that act demands protection from suit to ensure effective functioning of the official.”

¹⁵⁴ See Scheuer v. Rhodes, 416 U.S. 232 (1974) at 247 Google Scholar: “In varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action of which liability is sought to be based.” See also Butz v. Economou, 438 U.S. 478 (1978)Google Scholar.

¹⁵⁵ Nixon v. Fitzgerald, supra note 150 at 755.

¹⁵⁶ Ibid. at 750.

¹⁵⁷ Ibid. at 766.

¹⁵⁸ See Note, “Immunity of the President And Other Government Officials” (1982) 96 Harv. L. Rev. 226 Google Scholar; Theodore Stein, supra note 127.

¹⁵⁹ See Nixon v. Fitzgerald, supra note 148 at 764 per White J., dissenting: “A President, acting within the outer boundaries of what Presidents normally do, may, without liability, deliberately cause serious injury to any number of citizens even though he knows his conduct violates a statute or tramples on the constitutional rights of those who are injured.”.

¹⁶⁰ Amar, Akhil Reed & Katyal, Neal, “Executive Privileges and Immunities: The Nixon And Clinton Cases” (1995) 108 Harv. L. Rev. 701 at 708 CrossRefGoogle Scholar.

¹⁶¹ See Matraia, supra note 122 at 224: “The Fitzgerald Court could have adequately protected Presidents from suits by continuing to apply the functional approach announced in Imbler v. Pachtman and by granting the President primarily qualified immunity.”

¹⁶² Supra note 146.

¹⁶³ Clinton v. Jones, ibid. at 692-693.

¹⁶⁴ Ibid. at 695.

¹⁶⁵ Ibid. at 700.

¹⁶⁶ Nixon v. Fitzgerald, supra note 150 at 767.

¹⁶⁷ See Phil. Const., art. II.

¹⁶⁸ Codifying the due process and equa protection clauses (§2), right against unreasonable searches and seizures (§2), the privacy of communication and the exclusionary rule (§3), freedoms of speech, press and assembly (§4), free exercise of religion (§5), right to travel (§6), right to information (§7), right to form unions (§8), free access to courts (§11), the Miranda Warnings (§12), the privilege of the writ of habeas corpus (§15), right to speedy disposition of cases (§16), right against self-incrimination (§17), right against torture (§18), right against cruel and unusual, or degrading punishment (§19), among others.

¹⁶⁹ Phil. Const., art. VIII.

¹⁷⁰ Phil. Const., art. XIII, §§17, 18.

¹⁷¹ Phil. Const., art. VII, §18.

¹⁷² Phil. Const., art. XI, §§5-14.

¹⁷³ Nixon v. Fitzgerald, supra note 150 at 754.

¹⁷⁴ This policy is more explicit in the case of judges. Thus, Article 32, in reference to Arts. 204-207 of the Revised Penal Code (“knowingly rendering unjust judgment,” “judgment rendered through negligence,” “unjust interlocutory order,” “malicious delay in the administration of justice”) provides: “The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.” See also Clinton v. Jones, supra note 146.

¹⁷⁵ See Spalding v. Vilas, 161 U.S. 483 (1896) at 498: “In exercising the functions of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint.”

¹⁷⁶ Soliven v. Makasiar, 167 SCRA 393 (1988)Google Scholar.

¹⁷⁷ Phil. Const., art.VI, §5.

¹⁷⁸ Nixon v. Fitzgerald, supra note 150 at 754-754.

¹⁷⁹ See Ely, John Hart, Democracy & Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980)Google Scholar.

¹⁸⁰ See Phil. Const., art. VIII, §1:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch of instrumentality of the Government.

¹⁸¹ See David v. Macapagal-Arroyo, supra note 39 (nullifying, as applied, arrests of demonstrators and the takeover of a newspaper critical to the President); Senate v. Executive Secretary, supra note 33, (nullifying the President's orders to prohibit members of the Executive Department and the military from testifying in the Senate about massive cheating in the 2004 presidential elections and corrupt transactions in government); Bayan v. Executive Secretary, G.R. No.169838 (25 April 2006) (nullifying the policy of “calibrated preemptive response” against rallyists and restricting the application of the “no permit, no rally” policy of the Executive Secretary to the President).

¹⁸² bambino v. Commission on Elections, G.R. No.174153 (25 October 2006).

¹⁸³ See Javellana v. Executive Secretary, L-36142 (31 March 1973), holding that while the procedure adopted by the executive department controlled by former President Marcos for the ratification of the then-proposed 1973 Constitution was inconsistent with the 1935 Constitution, it nevertheless could not be nullified because the question was political, not legal.

¹⁸⁴ See Amar & Katyal, supra note 160.

¹⁸⁵ See Hilao v. Estate of Ferdinand Marcos, supra note 22.

¹⁸⁶ In addition, a decision rejecting immunity and allowing the case to proceed does not mean that the court may compel the attendance of the President at any specific time or place. See Clinton v. Jones, supra note 146 at 691.