CHAPTER 4
STATE IMMUNITY
State Immunity
- The State may not be sued without its consent (Sec. 3, Article XVI)
- True, the doctrine, not too infrequently, is derisively called “the royal prerogative of dishonesty” because
it grants the state the prerogative to defeat any legitimate claim against it by simply invoking its non-
suability (Dept of Agriculture vs. NLRC, Nov. 11, 1993)
Reason for Immunity
- With the well-known propensity on the part of our people to go to court, at the least provocation, the
loss of time and energy required to defend against lawsuits, in the absence of such a basic principle that
constitutes such an effective obstacle, could very well be imagined.” (Republic vs. Villasor, November 28,
1973)
Diplomatic Immunity
- A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
- He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
o (a) a real action relating to private immovable property situated in the territory of the receiving
State, unless he holds it on behalf of the sending Sate for the purposes of the mission;
(Article 31, Vienna Convention on Diplomatic Relations)
o (b) an action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;
o (c) an action relating to any professional or commercial activity exercised by the diplomatic agent
in the receiving State outside his official functions. (Article 31, Vienna Convention on Diplomatic
Relations)
Bottomline: Must be related to his official function or official business. If it is not work
related, the diplomat is not immune from suit
This immunity is only applicable only to sovereign and diplomatic representative.
International organizations do not get immunity out of the Vienna Convention.
Where do international organizations get their immunity? It is via their treaty between
the host state and the international organization. Example: World Health Organization
vs. Aquino
- Why is the immunity also invoked by another sovereign? It is because of the principle of equality of all
sovereign. Par en parem non habet imperium = all sovereigns are equal.
- So, if you cannot sue the Philippine State in the Philippine courts, because of the immunity granted by
the Constitution, neither could you sue in another sovereign because they are equal. This is also because
of the principle of reciprocity; our state cannot also be sued in the courts in another state abroad.
Immunity is not Absolute
- The state may not be sued without its consent is not really absolute for it does not say that the state may
not be sued under any circumstance.
- On the contrary, as correctly phrased, the doctrine only conveys, ‘the state may not be sued without its
consent’; its clear import then is that the State may at times be sued.
- The States’ consent may be given either expressly or impliedly. (Republic vs. NLRC, October 17, 1996)
Express Consent to be Sued
- Express consent may be made through a general law or a special law.
- In this jurisdiction, the general law waiving the immunity of the state from suit is found in Act. No. 3038,
where the Philippine government consents and submits to be sued upon any money claim involving
liability arising from contract, express or implied, which could be serve as a basis of civil actions between
private parties. (Republic vs. NLRC, October 17, 1996)
Consent to be Sued Under Special Law
- Under a special law consent to be sued may come in the form of a private bill authorizing a named
individual to bring suit on a special clam. A special law was passed to enable a person to sue the
government for an alleged tort. (United States vs. Guinto, February 26, 1990)
- The consent of the State to be sued must emanate from statutory authority. Waiver of State immunity
can only be made by an act of the legislative body. (Republic Of The Philippines vs. Feliciano, March 12,
1987)
Implied Consent to be Sued
- Implied consent, is conceded when
o (a) the State itself commences litigation, thus opening itself to a counter-claim, or
o (b) when it enters into a contract (Republic vs. NLRC, October 17, 1996)
- The immunity of the state from suit does not deprive it of the right to sue private parties in its own
courts (Froilan vs. Pan Oriental Shipping Co., September 30, 1954)
- Implied consent is conceded when the State itself commences litigation, thus opening itself to a counter-
claim or when it enters into a contract. (Republic vs. NLRC, Oct. 17. 1996)
When the State Commences Litigation
- In this situation, the government is deemed to have descended to the level of the other contracting
party and to have divested itself of its sovereign immunity. (DOH vs. Phil. Pharma Wealth, Feb. 20, 2013)
When the State Enters into a Contract
- There is implied consent when the state enters into a contract or itself commences litigation.
- However, it must be clarified that when a state enters into a contract, the State will be deemed to have
impliedly waived its non-suability only if it has entered into a contract in its proprietary or private
capacity. (DOH vs. Phil. Pharma Wealth, Feb. 20, 2013)
o Propriety or private capacity: When the state acts like a private entity or business. For example,
if the state enters into a commercial contract to buy supplies or services, it is acting in a
proprietary capacity. In this capacity, the state may be subject to the same legal responsibilities
and liabilities as any private party.
- And because these activities by the State it has been necessary to distinguish them:
o Jure imperii – sovereign and governmental acts – there is immunity
o Jure gestionis – private, commercial and proprietary acts – there is waiver of immunity. (US vs.
Ruiz, May 22, 1985)
- Dept Agriculture vs. NLRV, Nov 11, 1993
o 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.
o It does not apply when the contracts relate to the exercise of its sovereign functions.
Suability Does not Mean Liability
- Suability does not necessarily mean liability on the part of the particular instrumentality or agency of the
government.
- When the State gives its consent to be sued, it does not thereby necessarily consent to an unrestrained
execution against it.
- Tersely put, when the State waives its immunity, all it does, in effect, is to give the other party an
opportunity to prove, if it can, that the State has a liability. (Republic vs. NLRC, October 17, 1996)
When the Suit is Deemed Against the State
- The Suit is deemed against the State when:
o The Republic is sued by its name;
o The suit is against an unincorporated government agency;
o The suit is on its face against a government officer but the case is such that the ultimate liability
will belong not to the officer but to the government. (Republic vs. Sandoval, March 19, 1993)
Immunity from suit by the State cannot be used to institutionalize irresponsibility
- This doctrine of immunity from suit by the State cannot be used to institutionalize irresponsibility and
non-accountability nor grant a privileged status not claimed by any other official of the Republic.
- This Court has made it quite clear that even a “high position in the government does not confer a license
to persecute or recklessly injure another” (Chavez vs. Sandiganbayan, January 24, 1991)