7. Immunity of Public Officers

GROUNDS

General rule: A public officer is not liable for injuries caused by official acts performed within the scope of the officer’s authority.

Exceptions:

• Bad faith;
• Malice;
• Negligence; or
• An unauthorized or unlawful act, or another established basis for personal liability.

PRESIDENTIAL IMMUNITY

Immunity from suit is personal to the President and may be invoked by him alone. The President may waive it impliedly, as when he himself files suit (Soliven v. Makasiar, G.R. No. 82585, Nov. 14, 1988).

The presidential immunity from suit remains preserved under our system of government, albeit not expressly reserved in the present constitution (Rubrico, et al. v. Gloria Macapagal-Arroyo, et al., G.R. No. 183871, Feb. 18, 2010).

Unlawful acts of public officials are not acts of State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser. Once out of office, even before the end of the six-year term, immunity for non-official acts is lost (Estrada v. Desierto, G.R. No. 146710-15, March 2, 2001).

Even if the DECS Secretary is an alter ego of the President, the President’s immunity from suit cannot be invoked because the questioned acts are not the acts of the President but merely those of a Department Secretary (Gloria v. CA, G.R. No. 119903, Aug. 15, 2000).

Presumption of good faith in the discharge of official duties.

Every public official is entitled to the presumption of good faith in the discharge of official duties. Although a public officer is the final approving authority and the employees who processed the transaction were directly under his supervision, personal liability does not automatically attach to him but only upon those directly responsible for the unlawful expenditures. (Dimapilis-Baldoz v. COA, G.R. No. 199114, April 28, 2014)

Official immunity

Only protects public officials from tort liability for damages arising from acts or functions in the performance of their official duties.

Public officers may be sued to restrain them from enforcing an act claimed to be unconstitutional.

Exceptions: when liability does not devolve ultimately to the State such as:

• A petition to require official to do his duty;
• A petition to restrain him from doing an act;
• To recover taxes from him;
• Those where the officer impleaded may by himself alone comply with the decision of the court;
• Where the government itself has violated its own laws.

Where a public officer has committed an ultra vires act, or where there is a showing of bad faith, malice or gross negligence, the officer can be held personally accountable even if such acts are claimed to have been performed in connection with official duties. (Wylie v. Rarang, G.R. 74135, 1992)

Immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic. (Republic v. Sandoval, G.R. 84607, 1993)

Where the public officer is sued in his personal capacity, state immunity will not apply. (Lansang v. CA, G.R. 102667, 2000)

Presidential Immunity

The President as such cannot be sued, enjoying as he does immunity from suit. But the validity of his acts can be tested by an action against other executive officials [Carillo v. Marcos, G.R. No. L-21015 (1981)].

• May be invoked only by the President

Immunity from suit pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. The President may waive the protection afforded by the privilege and submit to the court's jurisdiction [Soliven v. Makasiar, G.R. No. 82585 (1988); Beltran v. Makasiar, G.R. No. 82827(1988)].

But presidential decisions may be questioned before the courts where there is grave abuse of discretion or that the President acted without or in excess of jurisdiction [Gloria v. CA, G.R. No. 119903 (2000)].

• Limitations

Immunity from suit applies throughout the President’s incumbency, including to suits concerning nonofficial acts. After tenure, the Chief Executive cannot invoke immunity from suit for civil damages arising out of acts done by him while he was President which were not performed in the exercise of official duties [Estrada v. Desierto, G.R. Nos. 146710-15 (2001)].

This presidential privilege of immunity cannot be invoked by a non-sitting president even for acts committed during his or her tenure [Saez v. Macapagal-Arroyo, G.R. No. 183533 (2012)].

After tenure: A former president may be sued if the act is one not arising from official conduct; this does not permit suit against a sitting President [See Estrada v. Desierto, supra].

Presidential Privilege

It is "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public" [Rozell].

Note: Case law uses the term presidential privilege to refer to either (a) immunity from suit (i.e. immunity from judicial processes, see Neri v. Senate, infra, and Saez v. Macapagal-Arroyo, supra); or (b) executive privilege [Akbayan v. Aquino, infra]

Judicial Privilege

Judicial privilege insulates the Judiciary from an improper intrusion into the functions of the judicial branch and shields justices, judges, and court officials and employees from public scrutiny or the pressure of public opinion that would impair a judge’s ability to render impartial decisions. (In Re: Production of Court Records and Documents and the Attendance of Court Officials and Employees as Witnesses under the Subpoenas of February 10, 2012 and the Various Letters of Impeachment Prosecution Panel dated January 19 and 25, 2012, Notice of Resolution, February 14, 2012).

Deliberative Process Privilege (Id.)

This privilege guards against the disclosure of information/communication involving as it does the deliberative process of reaching a decision. This enables the Members of the Court to freely discuss the issues without fear of criticism for holding unpopular positions or fear of humiliation for one's comments.

To qualify for protection under the deliberative process privilege, the agency must show that the document is both predecisional and deliberative.

• Predecisional – if it precedes, in temporal sequence, the decision to which it relates i.e. if they were made in the attempt to reach a final conclusion.
• Deliberative – if it reflects the give-and-take of the consultative process. The key question in determining whether the material is deliberative in nature is whether disclosure of the information would discourage candid discussion within the agency.

Suits against Public Officers

General Rule: The doctrine of state immunity also applies to complaints filed against officials of the State for acts performed by them in the discharge of their duties within the scope of their authority.

Exception: The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his (1) private and personal capacity as an ordinary citizen, for (2) acts without authority or in excess of the powers vested in him [Lansang v. CA, G.R. No. 102667 (2000)].

Note: Acts done without authority are not acts of the State (see Beyond Scope of Authority).

Absolutely Privileged Communications

Those which are not actionable even if the author has acted in bad faith.

This classification includes statements made by members of Congress in the discharge of their functions as such, official communications made by public officers in the performance of their duties, and allegations or statements made by the parties or their counsel in their pleadings or motions or during the hearing of judicial proceedings, as well as the answers given by witnesses in reply to questions propounded to them, in the course of said proceedings, provided that said allegations or statements are relevant to the issues, and the answers are responsive or pertinent to the questions propounded to said witnesses.