The Human Security Act and the Right to Sue the State

Under the Human Security Act of 2007 (RA 9327), the accused who is acquitted from the charge shall be entitled to damages in the amount of P500,000 for each day that he has been detained. The Human Security Act also provides for detailed mechanism on how the damages should be paid. The pertinent provision of the Human Security Act reads:

SEC. 50. Damages for Unproven Charge of Terrorism. — Upon acquittal, any person who is accused of terrorism shall be entitled to the payment of damages in the amount of Five Hundred Thousand Pesos (P500,000.00) for every day that he or she has been detained or deprived of liberty or arrested without a warrant as a result of such an accusation. The amount of damages shall be automatically charged against the appropriations of the police agency or the Anti-Terrorism Council that brought or sanctioned the filing of the charges against the accused. It shall also be released within fifteen (15) days from the date of the acquittal of the accused. The award of damages mentioned above shall be without prejudice to the right of the acquitted accused to file criminal or administrative charges against those responsible for charging him with the case of terrorism.

Any officer, employee, personnel, or person who delays the release or refuses to release the amounts awarded to the individual acquitted of the crime of terrorism as directed in the paragraph immediately preceding shall suffer the penalty of six (6) months of imprisonment.

If the deductions are less than the amounts due to the detained persons, the amount needed to complete the compensation shall be taken from the current appropriations for intelligence, emergency, social or other funds of the Office of the President.

In the event that the amount cannot be covered by the current budget of the police or law enforcement agency concerned, the amount shall be automatically included in the appropriations of the said agency for the coming year.

Why the detailed provision?

A public officer shall not be personally liable for damages for acts done in the performance of official duties, unless there is a clear showing of bad faith, malice or gross negligence. The Human Security Act follows the general rule that official duties are regularly performed. The police officers, in enforcing the Human Security Act, are acting as mere agents of the State. The State, on the other hand, cannot be sued without its consent.

Consent may be express or implied. Express consent may be embodied in a general law or a special law. Consent is implied when the state enters into a contract or it itself commences litigation. However, not all contracts entered into by the government will operate as an implied consent; distinction must be made between its sovereign and proprietary acts. Stated differently, a State may be deemed to have tacitly given its consent to be sued only when it enters into business contracts.

In instances where the State may not be sued, the only legal remedy is to file the claim under Act No. 3083 (1923), the general law expressly waiving the immunity of the state from suit. The claim must first be filed with the Commission on Audit (COA), which must decide the claim within sixty days from the date of its submission for decision or resolution. If the COA fails to decide the matter within said period, the appropriate action may then be filed with the regular courts. If the COA decides within the said period and denies the claim, the decision may be brought to the Supreme Court on certiorari.

Assuming that the a party succeeds in asserting its claim, it cannot execute the judgment may like ordinary civil cases. Within five days from the finality of the judgment, the clerk of court will forward a copy of the decision to the President of the Philippines, who will transmit the same to the Congress at the commencement of each regular session for appropriate action. This will be considered by Congress in preparing the annual national budget. Funds should be appropriated by Congress for the specific purpose of satisfying the judgment before the same may be paid.

By providing for a procedure in claims against the State or its agents, the Human Security Act makes it “relatively” easier for victims to get compensation. If this provision is not present, victims of abuses under the Human Security Act will again be victims in going through the difficult maze of suing – and getting paid by – the State.

Atty.Fred

2 thoughts on “The Human Security Act and the Right to Sue the State

  1. AvatarGrandeur

    Good evening, Sirs!

    We were charged with Violation of PD No. 1866 as amended by RA No. 9516 on September 14, 2014. The NBI alleged that we are going to bomb NAIA Terminal 3, among others on September 1, 2014. Aforementioned criminal act is included under Section 3 of the RA No. 9372 otherwise known as the Human Security Act of 2007. We were allowed to post bail on October 2015 due to weak evidence. We spent 404 days in jail. On July 6, 2017, we were acquitted from the charges. On October 13, 2017, our counsel filed a request for payment of damages in accordance with RA No. 9372 before the Anti-Terrorism Council thru the Secretary of Justice, Vitaliano Aguirre.

    On February 20, 2018, Sec. Benjamin Diokno of DBM made a reply to our counsel alleging that we were never charged and acquitted of terrorism. Sec. Diokno also averred that it is the Anti-Terrorism Council which should request funding for payment of damages arising from unproven charges of terrorism upon compliance with the provisions of the law. Absence the funding for the purpose authorized in the General Appropriations Act, the Department of Budget and Management has no basis to release the amount requested.

    On February 22, 2018, the DOJ Board of Claims thru its Chairman, Acting Prosecutor General Jorge Catalan Jr. sent us a letter per Resolution No. 2018-02 dated January 11, 2018 denying our claims for compensation under RA 7309 and regrettably averred that our case does not fall under Sec. 3(a) of the aforesaid law. He opined that the said law provides that any person who was unjustly accused, convicted, and imprisoned but subsequently released by virtue of final judgement of acquittal may file a claim for compensation before the Board. This means, as per his interpretation of the law, that there must have been a prior conviction and subsequent acquittal on appeal. He further opined that since we were a detention prisoner subsequently released after the charge against us was dismissed, the requirement of prior conviction is lacking in our case; hence the denial of our claim.

    On March 1, 2018, Sec. Diokno wrote a letter to SOJ Aguirre containing a paragraph that says, “It is fundamental rule in criminal procedure that criminal actions shall be instituted either by filing a complaint or information, sufficient in form and substance. Based on the letter request, none of the accused were charged and acquitted of terrorism but of other crimes such as…, and unlawful possession of explosives.”

    In connection with, I wish that I would be enlightened by your good Office on possible errors that my counsel has committed and what should have been done and further prays if your good Office can represent us in pursuing this compensation claims of ours in the interest of justice!

    Reply

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