On October 2015, the reputation of Philippine Government plummeted to abysmal lows. The country was perceived “most violent in Asia next to Korea”,with law order virtually non-existent. The UN warned its staff to wrap its bags in plastic to prevent the notorious planting of bullets by members of the Philippine Airport Police.  Travel advisories in the UK  issued cautionary bulletins.

Explorers of all walks of life had fallen victim to Filipino agents of the government. We have American pastors, Japanese businessmen, veteran domestic helpers and under age youth.

The State’s answer?

“You’re  carrying bullets as a life talisman. Those bullets were legitimately found. You will face a case”

What pastors of God and child stars have to do with belief in bullets’ life protecting powers boggles the mind. The Inquirer recently confirmed the existence of bullet planting syndicates working in the shadow of government authority.

The Question for Today: If I am a Foreigner, Aggrieved, Harassed, Framed: Can I sue The Philippine Government 

The NAIA shenanigans lead to legitimate queries from vexed foreign individuals: “If a bullet were planted on my luggage, if your corrupt officials incarcerated me for days and deprived me access to lawyers or aid, can I sue your government? Can I go back to my home state of Australia and sue your asses [sic ] in Queensland” (profanity provided by the individual)

The answer may be found in Article XVI Section 3, of the 1987 Constitution which states that  as a rule  a state may not be sued without its consent- and such principle is based on of the generally accepted principles of international law.

So what is the scope of state immunity from suit?

Shauf vs Court of Appeals clarifies

While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself although it has not been formally impleaded. 42 It must be noted, however, that the rule is not so all-encompassing as to be applicable under all circumstances.

It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of plaintiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. 43 “Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in equity against a State officer or the director of a State department on the ground that, while claiming to act or the State, he violates or invades the personal and property rights of the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State withinin the constitutional provision that the State may not be sued without its consent.” 44 The rationale for this ruling is that the doctrinaire of state immunity cannot be used as an instrument for perpetrating an injustice. 45

In the case of Baer, etc. vs. Tizon, etc., et al., 46 the magistrates of the land voiced:

There should be no misinterpretation of the scope of the decision reached by this Court. Petitioner, as the Commander of the United States Naval Base in Olongapo, does not possess diplomatic immunity. He may therefore be proceeded against in his personal capacity, or when the action taken by him cannot be imputed to the government which he represents.

Also, in Animos, et al. vs. Philippine Veterans Affairs Office, et al., 47 we held that:

. . . it is equally well-settled that where a litigation may have adverse consequences on the public treasury, whether in the disbursements of funds or loss of property, the public official proceeded against not being liable in his personal capacity, then the doctrine of non-suability may appropriately be invoked. It has no application, however, where the suit against such a functionary had to be instituted because of his failure to comply with the duty imposed by statute appropriating public funds for the benefit of plaintiff or petitioner. . . . .

In Amaratunga v. Northwest Atlantic Fisheries Organization:

“According to a general rule of customary international law, states enjoy immunity from the jurisdiction of other states. The International Court of Justice has held that state immunity derives from the principle of sovereign equality of states, which, as §2.1 of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order.

“Like other jurisdictions, Canada has legislated on state immunity. Parliament has enacted the State Immunity Act which confers immunity from the jurisdiction of Canadian courts on foreign states, except in proceedings that relate to a commercial activity. Canada has adopted a restrictive approach to state immunity and rejected the absolute approach under which states had historically enjoyed immunity in all circumstances

“In the case of international organizations, unlike that of states, the prevailing view at present is that no rule of customary international law confers immunity on them.

But The State Can Be Sued Under Specific Circumstances:

To answer the queries of the terrorized foreign travellers on the issue of state suite and immunity:

As a consequence of independence, territorial supremacy and equality, a State (such as the Philippine Government) enjoys immunity from the exercise of jurisdiction (legislative, executive or judicial) by another state EXCEPT:

  1. The state had waived immunity
  2. The state had granted consent
  3. The state had voluntarily submitted to jurisdiction of the court concerned.

AND, such immunity is recognized only with respect to soverign or public acts of said body politic and cannot be invoked with respect to private or proprietary acts.

By no stretch of the imagination can the business of running an airport, and by extension, planting bullets , be considered sovereign acts cloaked in legality.  The laws of the land even allow the prosecution of Senators and Congressmen committing crimes punishable by more than six years in prison.

The best legal remedy, therefore, is to hold all government officials directly involved in crime, as well as their superiors, accountable before a court of law enjoying jurisdiction.

Countering the  Rule of Command Responsibility, MIA General Manager Honrado was quoted as saying: “I can perform my duties, but I cannot exercise accountability” to distance himself from the criminal activity occurring under his watch.The following photo went viral on DZRH

no accountability

Still Planning to Sue Government?

The following infographic serves as the gude

How to Sue the Government

The Long Arm Statute May Apply

Long arm statute refers to the jurisdiction a court has over out-of-state defendants. International Shoe v. Washington was a landmark case that set precedent for establishing the right for government to use the long arm statute to bring an action against a defendant .

If an entity is located in one state, does business in another state and employs people in yet another state, they just may fall under the long arm statue. This sounds confusing, but it really boils down to this: long arm statute allows a state to exercise jurisdiction over out-of-state defendants, provided that the government can prove that the defendant has at least minimum contacts in the forum state.

For the current case, the NAIA is considered to have “entered into business” with foreign nationals by providing transport services for a fee.

Minimum Contacts Principle

The United States Supreme Court, in International Shoe v. Washington  and later on in World-Wide Volkswagen Corp. v. Woodson, has held that a person must have minimum contacts with a State, in order for a court in one state to assert personal jurisdiction over a defendant from another state. As the Court noted in the latter case,

As has long been settled, and as we reaffirm today, a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist “minimum contacts” between the defendant and the forum State…. The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.

The US Courts  May Sue

On the query  by which a foreign government such as that of the Philippines  may be sue or be sued in federal and state courts are narrowed by the Foreign Sovereign Immunities Act and the 11th Amendment to the United States Constitution.

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