In The News: Liability of Public Officials For Hostage Taking Incident

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

Posted on October 6, 2010 by Philbert E. Varona Posted in Civil Law, Constitutional Law,
Remedial Law
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
prisin 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.

In The News: Liability of Public Officials For Hostage Taking Incident

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

In The News: Liability of Public Officials For Hostage Taking Incident

Uploaded by

Copyright:

Available Formats

In the News: Liability of Public Officials for

Hostage Taking Incident

You might also like