In the News: Liability of Public Officials for Hostage Taking Incident

The kidnapping of 25 tourists (and murder of eight Hong Kong citizens) in Manila on August 23, 2010 could have been avoided. Many believe the authorities mishandled the crisis. President Aquino himself concedes that he should have taken a “more direct role” in resolving the dispute.

President Aquino directed the Department of Justice and Department of Interior and Local Government to conduct a joint investigation of the incident. In compliance with that directive, the DILG and DOJ formed an Incident Investigation and Review Committee (IIRC) to help determine what happened and evaluate how the various officials concerned handled the crisis. In its report dated September 17, 2010, the IIRC implicated at least 13 government officials and private individuals as responsible for the failed attempt to rescue the hostages.

The victims and their families undoubtedly suffered what are considered moral damages under Philippine law in the form of mental anguish, fright, serious anxiety, wounded feelings and moral shock during and after the incident. Do they have any remedy under Philippine law? Do they have a cause of action against public officials deemed to have mishandled the situation or even the Philippine government itself?

It is doubtful that any such suit against the Republic would prosper. Article XVI, section 3 of the Constitution embodies the long-accepted rule that the State may not be sued without its consent. Here, the Philippine government did not “consent” to being sued, as it did not enter into a private contract (Santos v. Santos, G.R. No. L-4699, November 26, 1952) or engage in a purely private business enterprise, not incidental to its governmental functions (Mobil Philippines v. Customs Arrastre Service, G.R. No. L-23139, December 17, 1966), nor initiate suit against a private party (Lim v. Brownell, G.R. No. L-8587, March 24, 1960). Neither is there any law that expressly authorizes private parties to sue the Philippine government in cases such as the Manila hostage incident.

This does not mean that the private parties affected (the hostages and their families) do not have any means of obtaining redress for their wrongs. There appears to be basis for the position that the injured parties may sue the public officials and other persons found to have mishandled the hostage crisis. The Supreme Court has held that state immunity from suit applies to actions filed against public officers only if the obligation sought to be imposed by judgment against such officers will ultimately rest with the government, e.g., when the judgment cannot be enforced unless the state appropriates public funds to pay damages awarded to the plaintiff. Immunity does not apply where the public official is “charged in his official capacity for acts that are unlawful and injurious to the rights of others,” and “[p]ublic officials are not exempt, in their personal capacity, from liability arising from acts committed in bad faith” (Lansang v. Court of Appeals, G.R. No. 102667, February 23, 2000). Arguably, this rule is not limited to acts committed in “bad faith,” but may be extended to gross negligence on the part of public officials.

In any event, Article 27 of the Civil Code expressly provides that public officials who fail to perform their official duties may be liable for damages and subject to administrative action:

Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against he latter, without prejudice to any disciplinary administrative action that may be taken.

The IIRC report states that the first critical incident that led to the killings was that public officials failed to properly activate a Crisis Management Committee (CMC) in accordance with manuals and protocols prescribed by the DILG and Philippine National Police (PNP) on the activation of such CMCs to deal with a “terrorist-based crisis” (see Executive Order No. 309 [1998], as amended; Memorandum Order No. 121 [October 31, 2000]; and DILG Memorandum Circular No. 101-03 [May 14, 2003]). According to the IIRC report, the failure to activate the CMC resulted in a lack of coordination among (and hence, inefficiency of) the various teams assigned to handle the crisis.

If it is finally established that the failure to activate the CMC was the proximate cause of the damages suffered by the hostages and their families, then applying Article 27 of the Civil Code cited above, the injured parties could file an action against the public officials concerned for their “failure to perform [their] official duty.” The public officials concerned may also be subject to disciplinary administrative action.

The IIRC report also states that certain police officers committed acts of insubordination in disobeying categorical orders from President Aquino to use the PNP Special Action Force — Crisis Response Group (SAF-CRG) for the assault. Instead, the police deployed a Special Weapons and Tactics (SWAT) unit, with disastrous results. If it is finally established that the police officers in charge did in fact openly refuse to execute an order validly issued by the President, they could be held guilty for open disobedience under Article 231 of the Revised Penal Code:

Any judicial or executive officer who shall openly refuse to execute the judgment, decision or order of any superior authority made within the scope of the jurisdiction of the latter and issued with all the legal formalities, shall suffer the penalties of arresto mayor in its medium period to prisión correccional in its minimum period, temporary special disqualification in its maximum period and a fine not exceeding 1,000 pesos.

The Manila hostage incident should serve as a cautionary tale for handling future crises. President Aquino has assured the public that the government is committed to “implementing the necessary changes to upgrade the capabilities of our local government units, police and security forces, to ensure safety of the public.” Hopefully these changes will actually be implemented, and prevent future loss of life.

(Philbert would like to thank Bryan D.G. Tiojanco for his assistance in preparing this post.)

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