Sovereign immunity does not cover ultra vires acts of a public officer

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@



The Manila Times


Dear PAO, I am a member of the police force and I was involved in an operation where we impounded a vehicle. The alleged owner sued us for violation of a certain special penal law. Will the suit be dismissed since we only acted in the performance of our duty? Herlene Dear Herlene, Lawful performance of a duty is a justifying circumstance which exempts an accused who is a public officer from criminal liability. This is in consonance with Article 11 (5) of the Revised Penal Code of the Philippines, as amended, which states that: “Article 11. Justifying circumstances. - The following do not incur any criminal liability: xxx 1. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office. xxx” The Supreme Court enumerated the elements of the said justifying circumstance in the case of Baxinela vs. People of the Philippines, G.R. No. 149652, March 24, 2006, penned by Honorable Former Associate Justice Adolfo S. Azcuna, to wit: “In order to avail of this justifying circumstance it must be shown that: 1) the accused acted in the performance of a duty or in the lawful exercise of a right or office; and 2) the injury caused or the offense committed is the necessary consequence of the due performance of duty or the lawful exercise of a right or office.” Thus, a public official who acted in bad faith in the performance of a duty may be held accountable for his actions. This finds support in the case of Uy, et al. vs. Sergio, Jr. and Jacalan, G.R. No. 232814, February 3, 2021, where the Supreme Court speaking through Honorable Associate Justice Henri Jean Paul B. Inting stated that: “As a general rule, public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they have acted ultra vires or where there is a showing of bad faith. It is also paramount that tortious acts or crimes committed while discharging official functions are not covered by sovereign immunity. An action at law or suit in equity against a government official who violates or invades the personal and property rights of a plaintiff under an unconstitutional act or under an assumption of authority which he does not have, with a claim to have acted for the State, is not a suit against the State. The actions of petitioners herein as government officials could not be considered as authorized by the State for the State authorizes only legal acts by its officers.” Applying the above-cited decision in your situation, the justifying circumstance of “lawful performance of a duty” may be availed by the public officer who was sued while performing acts in connection with his official duties. However, this circumstance does not cover ultra vires acts and acts done in bad faith. The Supreme Court is clear on the matter that sovereign immunity does not cover tortious or crimes committed while discharging official duties or functions. Thus, your belief that the case will be dismissed since you are only acting in the performance of your duty is not correct because you may still be held liable if it will be proven during the trial that your actions are ultra vires or there is bad faith, that is, if the impounding of the subject vehicle was done without any valid ground or legal justification. We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.