C O N S T I T U T I O N A L L A W- I

Theoretical Basis of the ConstitutionSocial Contract Theory

Philosophical View of the ConstitutionThe Constitution is a social contract. (Marcos v .Manglapus) Viewed in the light of the Social Contract Theories, the Constitution may be considered as the Social Contract itself in the sense that it is the very basis of the decision to constitute a civil society or State, breathing life to its juridical existence, laying down the framework by which it is to be governed, enumerating and limiting its powers and declaring certain fundamental rights and principles to be inviolable. The Constitution as a political document may be considered as the concrete manifestation or expression of the Social Contract or the decision to abandon the state of nature and organize and found a civil society or State. According to Dean Baustista, the Constitution is asocial contract between the government and the people, the governing and the governed. 7(ASM: I dont necessarily agree with this statement. As a social contract, the Constitution, I think is a contract between and among the people themselves and not between the government and the people. The government is only an effect or consequence of the social contract of the people. In other words, the government is only a creature of the Constitution. Hence, the government cannot be a party to a contract that creates it. In the 1987 Philippine Constitution, it reads, We the sovereign Filipino peoplein order to build a society and establish a government ordain and promulgate this Constitution.) According to Dean Bautista, the Constitution reflects majoritarian values but defends minoritarian rights.The theory of a social contract is a hypothesis explaining how society originates as well as the presumed relationship between its members, how they incur responsibilities, and their rights. Early proponents of the social contract, like Hobbes (1985) and Locke (2003), differed in their views and both have been surpassed by Rousseau whose influential 1762 treatise, The Social Contract, has made him synonymous since its publication with the theory of the social contract.

Constitution Defined

It is "a law for the government, safeguarding individual rights, set down in writing." (Hamilton.)

"It may be more specifically defined as a written instrument organizing the government, distributing its powers and safeguarding the rights of the People." (Tanada and Fernando)

"It is the written instrument by which the fundamental powers of government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic. (Malcolm and Laurel)

"According to Schwartz, "a constitution is seen as an organic instrument, under which governmental powers are both conferred and circumscribed. Such stress upon both grant and limitation of authority is fundamental in American theory. The office and purpose of the constitution is to shape and fix the limits of governmental activity.'" (Fernando, The Constitution of the Philippines, 20-21, 2nd ed., 1977.)

Comprehensive: That body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised. (Cooley)

American sense: A constitution is a written instrument by which the fundamental powers of government are established, limited, and defined and by which these powers are distributed among several departments, for their more safe and useful exercise, for the benefit of the body politic. (Justice Miller quoted by Bernas)

The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials, must defer. (Cruz, Constitutional Law, 1998 ed., p. 4)

Purpose of the Constitution

To prescribe the permanent framework of a system of government; and, To assign to the several departments their respective powers and duties, and to establish certain first principles on which the government is founded.

N: Majoritarianism is a traditional political philosophy which asserts that a majority of the population is entitled to a certain degree of primacy in the society, and has the right to make decisions that affect the society.

Historical Background of the 1987 Constitution

began on 11 April 1899, the date when the Treaty of Paris between the United and Spain of 10 December 1898 became effective upon the exchange of instruments of ratification of both countries. Sources of the 1987 Constitution:(i) McKinley's Instructions to the Second Philippine Commission; (ii) Spooner Amendment; (iii) Philippine Bill of 1902; (iv) Jones Law of 1916, known as the Philippine Autonomy Act; (v) 1935 Constitution; (vi) 1973 Constitution; and,(vii) Freedom Constitution of 1986 and its implementing orders.

1. Proclamation of the Freedom Constitution a. Proclamation No. 1, February 25, 1986, announcing that she (Corazon Aquino) and VP Laurel were assuming power. *announced the Provisional Constitution* seemed to suggest that it was a revolutionary government, since it announced that the "new government was installed, through a direct exercise of the power of the Filipino people assisted by units of the New Armed Forces," referring to the EDSA revolution.

b. Executive Order No.1, (Febrauary28, 1986) c. Proclamation No.3, March 25, 1986, announced the promulgation of the Provisional (Freedom) Constitution, pending the drafting and ratification of a new Constitution. It adopted certain provisions in the 1973 Constitution, contained additional articles on the executive department, on government reorganization, and existing laws. It also provided of the calling of a Constitutional Commission to be composed of 30-50 members to draft a new Constitution.* Contents of Provisional Constitution: Art I Adoption of certain provision of the 1973 Constitution as amended Art II on the President, Vice President and Cabinet Government reorganization promoting economy, efficiency and the eradication of graft and corruption Existing laws, treaties and contracts shall remain operative until amended, modified or repealed Art V Adoption of a new Constitution (Constitutional Commission) Art VI Holding of Elections Art VII Effective Date

2. Adoption of the ConstitutionProcessA Commission shall be appointed by the President to draft a new Constitution within 60 days from the date of this proclamation (Sec 1, Proclamation No. 3)New Constitution shall be presented by the Commission to the President (Sec 5, Proclamation No. 3)The President shall fix the date for the holding of a plebiscite within 60 days following its submission to the President (Sec 5, Proclamation No. 3)New Constitution shall become valid and effective upon ratification by a majority of the votes cast in such plebiscite (Sec 5, Proclamation No. 3)Composition of CommissionNumber: 30-50 membersRequirements (Sec 1, Proclamation No 3) Natural-born citizen Of recognized probity, known for their independence, nationalism and patriotism Chosen by the President after consultation with various sectorsb. 1987 Constitution, Art. XVIII, sec. 27.EFFECTIVITY* This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. * Approved by the Constitutional Commission of 1986on the twelfth day of October 1986* Accordingly signed on the fifteenth day of October 1986 at the Plenary Hall, National Government Center, Quezon City, by the Commissioners whose signatures are hereunder affixed.c. Proclamation No. 58, February 11, 1987d. Effectivity of the 1987 Constitution: February 2, 1987Parts of a good written constitution Constitution of Government. The series of provisions outlining the organization of the government, enumerating its powers, laying down certain rules relative to its administration and defining the electorate. (ex. Art VI, VII, VIII and IX)

Constitution of Liberty.The series of prescriptions setting forth the fundamental civil and political rights of the citizens and imposing limitations on the powers of government as a means of securing the enjoyment of those rights. (Ex. Article III)

Constitution of Sovereignty. The provisions pointing out the mode or procedure in accordance with which formal changes in the fundamental law maybe brought about. (Ex. Art XVII)[Social and economic rights]

STATE

A community of persons, more or less numerous, permanently occupying a fixed territory and possessed of an independent government organized for political ends to which the great body of inhabitants render habitual obedience.

CIR v. Campos RuedaA State is a politically organized sovereign community, independent of outside control, bound by ties of nationhood, legally supreme within its territory, and acting through government functioning under a regime of law.

Elements of the State

People --- inhabitants of the State (1) Inhabitants, as used in:a. The State shall protect and promote the right to health of the people and instill health consciousness among them.(Sec 15. Art II)

b. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. (Sec 16, Art II)

c. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable x x x (Sec 2, Art III)

Qua Chee Gan v Deportation Board (1963): The right of an individual to be secure in his person is guaranteed by the Constitution. The same is declared a popular right of the people and indisputably applies to both citizens and foreigners in this country.

d. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. (Sec 1, Art XIII)

(2) Electors, as used in:a. The President and the Vice-President shall be elected by direct vote of the people (Sec 4, Art VII)

b. The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum. (Sec 2, Art XVI)

c. After the expiration in 1991 of the Agreement between the RP and USA concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.(Sec 25, Art XVIII)

(3) Citizens, as used in:a. Preamble, 1987 Constitution ;

b. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. (Sec 1, Art II)

c. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military, or civil service. (Sec 4, Art II)

d. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. (Sec 7, Art III)

Territory --- fixed portion of the surface of the earth inhabited by the people of the State

Article I of the 1987 ConstitutionNational Territory of the Philippines comprises of: Philippine archipelago that body of water studded with islands which is delineated in the Treaty of Paris, as amended by the Treaty of Washington and the Treaty with Great Britain. With all the islands and waters embraced therein; and all other territories over which the Philippines has sovereignty or jurisdiction;Definition: It includes any territory that presently belongs or might in the future belong to the Philippines through any of the internationally accepted modes of acquiring territory. Consisting of itsa. Terrestrialb. Fluvial; and CODE: TFAc. Aerial domains Including itsa. Territorial seab. The seabedc. The subsoil CODE: TSSIOd. The insular shelves; ande. The other submarine areas

The watersa. Aroundb. Between andc. Connectingd. The islands of the archipelago CODE: ABCIRegardless of their breadth and dimensionsForm part of the INTERNAL WATERS of the Philippines.

Archipelagic Doctrine(1989 Bar Question)It is the principle whereby the body of waterstudded with islands, or the islands surroundedwith water , is viewed as a unity of islands andwaters together forming one integrated unit. Forthis purpose, it requires that baselines be drawn byconnecting the appropriate points of the outermostislands to encircle the islands within thearchipelago. We consider all the waters enclosedby thes traight baselines as internal waters.

Purpose of Archipelagic Doctrine: To protect the territorial integrity of the archipelago. Without it, there would be pockets of high seas between some of our islands and islets, thus foreign vessels would be able to pass through these pockets of seas and would have no jurisdiction over them.

Elements: Definition of internal waters Internal waters refer to all waters landwards from the baseline of the territory

The straight line method of delineating theTerritorial sea.

Straight Baseline Method- drawn connectingselected points on the coast without departing toany appreciable extent from the general directionof the coast. RA 3046 and RA5446 have drawnstraightbaselines around the Philippines. (The problem with the straight baseline method is that it conflicts with the Law of the Sea because it recognizes the right of innocent passage in archipelagic waters. That is why we made a reservation. However, as Bernas pointed out, the reservation is ad cautelam)The claim made in the Constitution took effect in 1973 before the 1982 Law of the Sea Convention wasformulated. Article 8(2) of the Convention itselfsays that the new rule on archipelagic waters applies only to areas which had not previouslybeen considered as internal waters.

Territorial sea- 12 nautical miles (n.m.) Contiguous zone-12 n.m. from the edge of the territorial sea Exclusive economic zone - 200 n.m. from the baseline [includes (1) and (2)]

1) Those ceded to the US by virtue of the Treaty of Paris on December 10, 1898. 2) Those defined in the treaty concluded between the US and Spain (Treaty of Washington) on November 7, 1990, which were not defined in the Treaty of Paris, specifically the islands of Cagayan,Sulu and Sibuto.3) Those defined in the treaty concluded on January 2, 1930, between the US and Great Britain (Treaty with Great Britain),specifically the Turtle and Mangsee islands.4) The island of Batanes, which was covered under a general statement in the 1935 Constitution.5) Those contemplated in the phrase belonging to the Philippines by historic right or legal title in the1973 Constitution.

According to UNCLOS, in Archipelagic waters, a right of innocent passage shall exist in these waters. But, the Philippines made a reservation, thus, The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straitsConnecting these waters with the economic zone orhigh sea from the rights of foreign vessel to transitpassage for international navigation.Bernas: The reservation is ad cautelam. The claimmade in the Constitution took effect in 1973 beforethe 1982 Law of the Sea Convention wasformulated. Article 8(2) of the Convention itselfsays that the new rule on archipelagic waters applies only to areas which had not previouslybeen considered as internal waters.

According to UNCLOS, Archipelagic waters refers to areas enclosed as internal waters by using the baseline method which had not been previously considered as internal waters. (See Article 53 of UNCLOS)

Territorial sea is an adjacent belt of sea with abreadth of 12 nautical miles measured from thebaselines of a state and over which the state hassovereignty .(Article 2, 3 of UNCLOS)

Internal waters refer to all waters landwards fromthe baseline of the territory . Is from which thebreadth of territorial sea is calculated. (Brownlie,Principles of PIL) No right of innocent passage forforeign vessels exist in the case of internal waters.(Harris, Cases and Material on International Law,5th ed., 1998, p.407) Under Section 1, Article I of the 1987 Constitution, the internal waters of the Philippines consist of the waters around between and connecting the islands of the Philippine archipelago regardless of their breadth and dimensions including the waters in bays, rivers, and lakes.

Contiguous zone is a zone contiguous to theterritorial sea and extends up to twelve nauticalmiles from the territorial sea and over which thecoastal state may exercise control necessary toprevent infringement of its customs, fiscal, immigration or sanitary laws and regulations withinits territory or territorial sea. (Article 33 of theConvention on the Law of the Sea.)

The EEZ extends 200 nautical miles from thebaseline. The EEZ is recognized in the UNConvention on the Law of the Sea. Although it is not part of the national territory, exclusive economic benefit is reserved for the country within the zone. By virtue of PD 1599, the Philippine declares that it has sovereign rights to explore, exploit, conserve and manage the natural resources of the seabed, subsoil, and superjacent waters. Other states are prohibited from using the zone except for navigation and overflight, laying of submarine cables and pipeline, and other lawful uses related to navigation and communication.

Government --- agency/ instrumentality through which the will of the State is formulated, expressed, and realized.

Government of the Republic of the Philippines a term which refers to the corporate governmental entity through which the functions of government are exercised throughout the Philippine Islands, including, save as the contrary appears from context, the various arms through which political authority is made effective in said Islands, whether pertaining to the central Government or to the provincial or municipal branches or other form of local government.(Section 2 of the Revised Administrative Code(1917). On the national scale, the term government of the Philippines refers to the three great departments. On the local level, it means the regional, provincial, city municipal and barangay governments.It does not include government entities which aregiven a corporate personality separate and distinct for the government and which are governed by the corporation lawFunctions of the Governmenta. Constituent functions - constitute the very bonds of society; compulsory keeping of order and providing protection fixing of legal relations between man and wife, and children regulation of the holding, transmission andinterchange of property define crime and punishment regulates and determines contract betweenindividuals dealings of state with foreign powers

b. Ministrant functions - undertaken to advance the general interests of society; optional public works public education public charity health and safety regulations trade and industry

HOWEVER, the distinction between constituent and ministrant functions is not relevant in our jurisdiction. ACCFA v Federation of Labor Unions

Doctrine of parens patriae It is the task of the government to act as guardian of the rights of the people. This prerogative of parens patriae is inherent in the supreme power of every state, whether that power is lodged in a royal person or in the legislature

De jure and de facto governmentsa. De jure government has rightful title no power or control, either because this has been withdrawn from it, or because it has not yet actually entered into the exercise thereof.b. De facto government government of fact, that is, it actually exercises power or control without legal title.

SOVEREIGNTY Supreme and uncontrollable power inherent in a State by which the State is governed

Characteristics: permanent exclusive comprehensive absolute indivisible inalienable imprescriptible

Kinds of Sovereignty

A. Legal Sovereignty is the authority which has the power to issue final commands. In our country, the Congress is the legal sovereign. (Cruz) described as the supreme power to make laws. is the supreme power to affect legal interests either by legislative, executive or judicial action. This is lodged in the people but is normally exercised by state agencies (Bernas)

Sinco prefers not to make the distinction and places legal sovereignty in the state itself considered as a juridical person.

B. Political Sovereignty Sum total of all the influences of a State, legaland non-legal which determine the course of law. power behind the legal sovereign as the sum total of all influences in a state, legal or non-legal, which determine the course of law . (Bernas)

C. Internal Sovereignty It refers to the power of the State to control its domestic affairs. It is the supreme power overEverything within its territory.

D. External Sovereignty Also known as Independence, which is freedom from external control. It is the power of State to direct its relations with other States.

Doctrine of Sovereign Immunity The State cannot be sued without its consent. (Sec. 3, Art. XVI, 1987 Constitution)Basis: It reflects nothing less than recognition of the sovereign character of the State and an express affirmation of the unwritten rule effectively insulating it from the jurisdiction of courts. It is based on the very essence of sovereignty. There can be no legal right against the authority which makes the law on which the right depends (Republic vs. Villasor, GRN L30671, November 28, 1973). However, it may be sued if it gives consent, whether express or implied. If the State is amenable to suits, all its time would be spent defending itself from suits and this would prevent it from performing it other functions. [Republic v. Villasor]

Suits Against the State When the Republic is sued by name; When the suit is against an unincorporated government agency; When the suit is on its face against a government officer but the case is such that ultimate liability will belong not to the officer but to the government. (Republic v. Sandoval, G.R. No. 84607, Mar. 19, 1993)

A. A suit is against the State, if it produces adverse consequences to the public treasury in terms of disbursement of public funds and loss of government property.

cannot prosper unless the State has given its consent.

B. Suit is not against the State:

a) when the purpose of the suit is to compel an officer charged with the duty of making payments pursuant to an appropriation made by law in favor of the plaintiff to make such payment, since the suit is intended to compelperformance of a ministerial duty. (Begoso v. PVA)

b) when from the allegations in the complaint, it is clear that the respondent is a public officer sued in a private capacity;

c) when the action is not in person am with the government as the named defendant, but an action in rem that does not name the government in particular.

State can be sued with:

A. Express consent maybe manifested through general or special law. It is effected only by the will of the legislature through the medium of a duly enacted statute. Note: Solicitor General cannot validly waive immunity from suit. Only the Congress can (Republic v. Purisima, G.R. No. L36084, Aug.31, 1977). General Law authorizes any person who meets the conditions stated in the law to sue the government in accordance with the procedure in the law

CA 327: an act fixing the time within which theAuditor General should render his decision and prescribing the manner of appeal decision rendered within 60 days after receipt of necessary information for cases involving settlement of accounts or claims decision rendered within 100 days from submission for accounts for accountable officers decision may be appealed in writing to the President or the Supreme Court within 30 days if aggrieved party is a private person appeal may be taken by the proper head of department or head of office or branch immediately concerned

Special Law may come in the form of a private bill authorizinga named individual to bring suit on a special claim

Act 2189: Provinces, cities and municipalities shall be liable for damages for the death or injuries suffered by any person by reason of the defective conditions of roads, streets, public buildings and other public works under their control and supervision

B. Implied consent is given when the State itself commences litigation or when it enters into a contract. There is an implied consent when the state enters into a business contract. (US v. Ruiz, G.R. No. L35645 May 22, 1985) Note: This rule is not absolute.

when the State enters into a business contract or itself commences litigation. State may only be liable for proprietary acts (jure gestioni) and not for sovereign acts (jure imperii) When state files complaint, suability will result only where the government is claiming affirmative relief from the defendant when it would be inequitable for the State to invoke its immunity in instances when the State takes private property for public use or purpose.

The Government is only liable for the acts of its agents, officers and employees, when they act as special agents within the meaning of (ART. 2180 (6) CC). Special agent one who receives a definite and fixed order orcommission, foreign to the exercise of the duties of his office if he is a special official.

This concept does not apply to any executive agent who is an employee of the active administration and who on his own responsibility performs the functions which are inherent in and naturally pertain to his office and which are regulated by law and the regulations(Merritt v. Govt of the Philippine Islands)

Shauf v CA 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. The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen, for acts without authority or in excess of the powers vested in him.

When the Government creates a corporation, it invariably provides this corporation a separate entity and with the capacity to sue and be sued. Consent to be sued includes actions based on quasi-delict even though committed by regular, and not special, agents. Rule: a government entity can be sued for tort, but if it is, it can invoke the defense that it acted through its regular employee, and not through a special agent. The principle of State immunity from suit does not apply when the relief demanded requires no affirmative official action on the part of the State no the affirmative discharge of any obligation which belongs to the State in its political capacity, even though the officers or agents who are made defendants claim to hold or act only by virtue of a title of the State and as its agents and servants. (Republic v Sandoval)

Implications of this phrase waiver of immunity by the State does not mean a concession of its liability When the State gives its consent to be sued, all it does is to give the other party an opportunity to show that the State is liable. Accordingly, the phrase that waiver of immunity by the State does not mean a concession of liability means that by consenting to be sued, the State does not necessarily admit that it is liable. In such a case the State is merely giving the plaintiff a chance to prove that the State is liable but the State retains the right to raise all lawful defenses. (Philippine Rock Industries, Inc. v. Board of Liquidators, G.R. No. 84992, December 15, 1989)

SUABILITY Depends on the consent of the State to be sued The circumstance that a State is suable does not necessarily mean that it is liable.

LIABILITY Depends on the applicable law and the established facts The State can never be held liable if it is not suable.

The difference between the suability and liability of the Local Government Where the suability of the state is conceded and by which liability is ascertained judicially, the state is at liberty to determine for itself whether to satisfy the judgment or not. (Municipality of Hagonoy Bulacan vs. Hon. Simeon Dumdum, G.R. No. 168289 March 22, 2010)

Doctrine of State Immunity also apply as well to foreign government

This doctrine also applies to foreign government because of the sovereign equality of all the state. Accordingly, immunity is enjoyed by other States, consonant with the public international law principle of par in parem non habet imperium. The head of State, who is deemed the personification of the State, is inviolable, and thus, enjoys immunity from suit. (JUSMAG Philippines v. NLRC, G.R. No. 108813, December 15, 1994)

Q: Petitioners sued the Philippine National Railways for damages for the death of their son who fell from an overloaded train belonging to the PNR. The trial court dismissed the suit on the ground that the charter of the PNR, as amended by P.D No. 741 has made the same a government instrumentality, and thus immune from suit. Is the dismissal proper? A: No. The correct rule is that not all government Entities whether corporate or noncorporate, are immune from suits. Immunity from suit is determined by the character of the objects for which the entity is organized. When the government enters into a commercial business, it abandons its sovereign capacity and is to be treated like any other corporation. In this case, the State divested itself of its sovereign capacity when it organized the PNR which is no different from its predecessors, the Manila Railroad Company. (Malang v. PNRC, G.R. No. L49930, August 7, 1985) Q: Distinguish unincorporated government agency performing governmental function and one performing proprietary functions according to the applicability of the Doctrine of State Immunity.

Unincorporated Government Agency Performing Governmental Functions

Immunity has been upheld in its favor because its function is governmental or incidental to such function

Unincorporated Government Agency Performing Proprietary Function Immunity has not been upheld in its favor whose function was not in pursuit of a necessary function of government but was essentially a business. (Air Transportation Office v. Spouses David, G.R. No. 159402, February 23, 2011)

Restrictive Theory of State Immunity from Suit The Restrictive Theory of State Immunity means that a State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. However, the restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. It does not apply where the contract relates to the exercise of its sovereign functions. (United States vs. Ruiz, G.R. No. L35645, May 22, 1985)

Q: When is a suit against a public official deemed to be a suit against the State? A: The doctrine of State Immunity from suit applies to complaints filed against public officials for acts done in the performance of their duties within the scope of their authority. GR: The rule is that the suit must be regarded as one against the state where the satisfaction of the judgment against the public official concerned will require the state to perform a positive act, such as appropriation of the amount necessary to pay the damages awarded to the plaintiff. XPNs: The rule does not apply where: 1. The public official is charged in his official capacity for acts that are unlawful and injurious to the rights of others. Public officials are not exempt, in their personal capacity, from liability arising from acts committed in bad faith; or 2. The public official is clearly being sued not in his official capacity but in his personal capacity, although the acts complained of may have been committed while he occupied a public position. (Lansang vs. CA, G.R. No. 102667, February 23, 2000)

Sec. 2 of CA 327 has been amended by Sec. 50 of PD 1445 and by Sec. 35, Chapter 5, Subtitle B, Title I, Book V, Administrative Code of the Philippines, as follows:

Sec. 50. Appeal from decisions of the Commission.-- The party aggrieved by any decision, order, or ruling of the Commission may within thirty days from his receipt of a copy thereof appeal on certiorari to the Supreme Court in the manner provided by law and the Rules of Court. When the decision, order, or ruling adversely affects the interests of any government agency, the appeal may be taken by the proper head of that agency. (PD 1445.)

Sec. 35. Appeal from Decision of the Commission.-- Any decision, order or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof in the manner provided by law and the Rules of Court. When the decision, order or ruling adversely affects the interest of any government agency, the appeal may be taken by the proper head of that agency. (Subtitle B, Title I, Book V, Administrative Code of the Philippines.)

Before the 1987 Constitution, the law in force was Act 3038 and CA 327 which, according to Sayson v Singson (a suit to compel payment of electrical supplies delivered to CAA), allowed suit only for money claims arising from contract, and providing a special procedure. Under this procedure, the claim must be filed with the Auditor General (now, COA). If the Auditor did not act within 60 days, then the claimant could file his claim with the RTC. But if the Auditor rendered a decision, then the appeal could be made to the SC, unless the claimant was a public official in which case appeal was to the President.

Art. IX of the 1987 Constitution now gives a different procedure. All money claims are to be filed with COA, which has 60 days within which to act. If it fails to so act, the claimant must wait anyway. Once a decision has been made, he has, within 30 days to appeal by certiorari to the SC.

Art. 2180 of the Civil Code allows a suit against the government for quasi-delicts committed by the government when acting through special agents (those performing non-regular functions)But if the tortious act was committed by a regular employee, the injured party could only bring a suit for damages against the employee in his personal capacity. It should be noted in this connection, that in Merritt vs Govt. of the Philippine Islands, 34 Phil 311, the SC said that it is therefore evident that the State is only liable for acts of its agents, officers and EEs when they act as special agents within the meaning of Art. 1903 (now Art. 2180) and that the chauffeur of the ambulance of the General Hospital was not such agent. In this case, the Philippine General Hospital (PGH), the agency involved, did not yet have separate legal personality from the Philippine Govt. It should further be noted that the plaintiff was allowed to sue by virtue of a special law but was unable to hold the defendant govt. liable since the injuries were caused by a regular driver of the govt. and not a special agent.

Incorporation of government-owned or controlled corps.When the government creates a corporation, it invariably provides this corporation a separate entity and with the capacity to sue and be sued. If the government entity is given the capacity to be sued, the suit encompasses any kind of action, including one from tort. In SSS v CA, 120 SCRA 707 (1983), the property of one Socorro Cruz was foreclosed due to the negligence of the regular employees of SSS in mistaking her account, which was updated, with that of another Socorro Cruz, which was in arrears. The SC, in granting nominal damages to the claimant, seemed to be saying that SSS could have invoked the defense of Art. 2180, which it did not. The separate opinion of Makasiar enunciated this. [Note: Consent to be sued includes actions based on quasi-delict even though committed by regular agents and not by special agents.]So the rule, it seems, is that a government entity can be sued for tort, but if it is, it can invoke the defense that it acted through its regular employees, not special agents.

OTHER READINGS

Republic Act No. 3083AN ACT DEFINING THE CONDITIONS UNDER WHICH THE GOVERNMENT OF THE PHILIPPINE ISLANDS MAY BE SUED

SECTION 1. Complaint against Government. Subject to the provisions of this Act, the Government of the Philippine Islands hereby consents and submits to be sued upon any moneyed claim involving liability arising from contract, expressed or implied, which could serve as a basis of civil action between private parties.

SECTION 2. A person desiring to avail himself of the privilege herein conferred must show that he has presented his claim to the Insular Auditor and that the latter did not decide the same within two months from the date of its presentation.

SECTION 3. Venue. Original actions brought pursuant to the authority conferred in this Act shall be instituted in the Court of First Instance of the City of Manila or of the province were the claimant resides, at the option of the latter, upon which court exclusive original jurisdiction is hereby conferred to hear and determine such actions.

SECTION 4. Actions instituted as aforesaid shall be governed by the same rules of procedure, both original and appellate, as if the litigants were private parties.

SECTION 5. When the Government of the Philippine Island is plaintiff in an action instituted in any court of original jurisdiction, the defendant shall have the right to assert therein, by way of set-off or counterclaim in a similar action between private parties.

SECTION 6. Process in actions brought against the Government of the Philippine Islands pursuant to the authority granted in this Act shall be served upon the Attorney-General whose duty it shall be to appear and make defense, either himself or through delegates.

SECTION 7. Execution. No execution shall issue upon any judgment rendered by any court against the Government of the Philippine Islands under the provisions of this Act; but a copy thereof duly certified by the clerk of the Court in which judgment is rendered shall be transmitted by such clerk to the Governor-General, within five days after the same becomes final.

SECTION 8. Transmittal of Decision. The Governor-General, at the commencement of each regular session of the Legislature, shall transmit to that body for appropriate action all decisions so received by him, and if said body determine that payment should be made, it shall appropriate the sum which the Government has been sentenced to pay, including the same in the appropriations for the ensuing year.

SECTION 9. This Act shall take effect on its approval.

Approved, March 16, 1923.

Commonwealth Act No. 327AN ACT FIXING THE TIME WITHIN WHICH THE AUDITOR GENERAL SHALL RENDER HIS DECISIONS AND PRESCRIBING THE MANNER OF APPEAL THEREFROM

Section 1. In all cases involving the settlement of accounts or claims, other than those of accountable officers, the Auditor General shall act and decide the same within sixty days, exclusive of Sundays and holidays, after their presentation. If said accounts or claims need reference to other persons, office or offices, or to a party interested, the period aforesaid shall be counted from the time the last comment necessary to a proper decision is received by him. With respect to the accounts of accountable officers, the Auditor General shall act on the same within one hundred days after their submission, Sundays and holidays excepted.

In case of accounts or claims already submitted to but still pending decision by the Auditor General on or before the approval of this Act, the periods provided in this section shall commence from the date of such approval.

Section2. The party aggrieved by the final decision of the Auditor General in the settlement of an account for claim may, within thirty days from receipt of the decision, take an appeal in writing:

(a) To the President of the United States, pending the final and complete withdrawal of her sovereignty over the Philippines, or (b) To the President of the Philippines, or (c) To the Supreme Court of the Philippines if the appellant is a private person or entity.

If there are more than one appellant, all appeals shall be taken to the same authority resorted to by the first appellant.

From a decision adversely affecting the interests of the Government, the appeal may be taken by the proper head of the department or in case of local governments by the head of the office or branch of the Government immediately concerned.

The appeal shall specifically set forth the particular action of the Auditor General to which exception is taken with the reasons and authorities relied on for reversing such decision.

Section3. This Act shall take effect upon its approval.

Prepared by: Kxy Paula C. Pascual, RNArellano University School of Law 1