The Doctrine of State Immunity

Outline

Basis (Republic vs. Villasor, 54 SCRA 83)

How may consent of the State to be sued given?

When is a suit against a public official deemed to be a suit against the State?

What are the instances when a suit against the State is proper?

May the government validly invoke the doctrine of State immunity from suit if its invocation
will serve as an instrument for perpetrating an injustice on a citizen?

Leslie Riego Balgemino

Master of Arts in Teaching Social Science
Advance Constitution

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Answer

1. Basis (Republic vs. Villasor, 54 SCRA 83)

The Doctrine of State Immunity sometimes called “the royal prerogative of dishonesty”
as declared in the Constitution affirms, “ The state may not be sued without its
consent”. This provision is merely recognition of the sovereign character of the state and
an express affirmation of the unwritten rule insulating it from the jurisdiction of the courts
of justice.

According to Justice Holmes the doctrine of non-suability is based not on any formal
conception or obsolete theory but on the logical and practical ground that there can be no
legal right against the authority, which makes the law on which the right depends.
Another justification is the practical consideration that the demands and inconveniences
of litigation will divert the time and resources of the state from the more pressing
matters demanding its attention, to the prejudice of the public welfare.

The doctrine is also available to foreign states insofar as they are sought to be sued in the
courts of the local state. The added basis in this case is the principle of the sovereign
equality of states, under which one state cannot assert jurisdiction over another in
violation of the maxim par in parem non habet imperium. To do so would “unduly
vex the peace of nations.

2. How may consent of the State to be sued given?

The consent of the state to be sued may be given expressly or impliedly. Express
consent may be manifested either through a general law or a special law. Implied
consent is given when the State itself commences litigation or when it enters into a
contract.

The general law providing for the standing consent of the State to be sued is Act No.
3083, declaring that “the Government of the Philippine Islands hereby consents and
submits to be sued upon any moneyed claim involving liability arising from contract,
express or implied, which could serve as a basis of civil action between private
parties.”

Under C.A. No. 327 as amended by P.D. No. 1445, a claim against the government must
first be filed with the Commission on Audit, which must act upon it within sixty (60)
days. Rejection of the claim will authorize the claimant to elevate the matter to the
Supreme Court on certiorari and in effect sue the state with its consent.

The express consent of the State to be sued must be embodied in a duly enacted statute
and may not be given by a mere counsel of the government.

It should also be observed that when the State gives its consent to be sued, it does not
thereby also to the execution of the judgment against it. Such execution will require
another waiver, lacking which the decision cannot be enforced against the State.

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3. When is a suit against a public official deemed to be a suit against the State?

Because actions are rarely instituted directly against the Republic of the Philippines, the
usual practice is to file such claims not against the State itself but against the officer of
the government who is supposed to discharge the responsibility or grant the redressed
demanded. It is important then, to determine if the State is the real party in interest, that
is, that the claim if proved will be a direct liability of the State and not merely of the
officer impleaded. If this is shown, the action can be dismissed as a suit against the State
unless its immunity had been previously waived.

There are many instances when a public officer may be sued in his official capacity
without the necessity of first obtaining the consent of the State to be sued. A public
officer may be impleaded to require him to do a duty required by law, or to restrain him
from doing an act alleged to be unconstitutional or illegal, or to recover from him taxes
unlawfully assessed or collected. It has been held also that where an action is filed against
a public officer for recovery only of title or possession of property claimed to be held by
him in his official capacity, the said action is not a suit against the State for which prior
waiver of immunity is required. But it is different where there is an addition a claim for
recovery of damages, such as accrued rentals, inasmuch as it allowance would require the
government to appropriate the necessary amount for the satisfaction of the judgment.

Assuming the decision is rendered against the public officer impleaded, enforcement
thereof will require an affirmative act from the State, such as the appropriation of the
needed amount to satisfy the judgment. If it does, the suit is one against the State and its
inclusion as party defendant is necessary. If on the other hand, the officer impleaded may
by himself alone comply with the decision of the court without the necessity o involving
the State, then the suit can prosper against him and will not be considered a claim against
the State. Lastly, when a public officer acts without or in excess of jurisdiction, any injury
caused by him is his own personal liability and cannot be imputed to the State.

4. What are the instances when a suit against the State is proper?

Three instances are considered suit against the state. These are:

When the Republic is sued by name. To sue the State, its express consent should be ask
and be manifested through a general law or a special law, while the implied consent is
given when the State commences litigation or the state entering into a contract. The
general law that provides for the consent of the State to be sued is Act No. 3083 (“the
Government of the Philippine Islands hereby consents and submits to be sued upon any
moneyed claim involving liability arising from contract, express or implied, which could
serve as a basis of civil action between private parties.”).

When an Unincorporated government agency is sued. If suit is filed against one of the
government entities, it must be ascertained whether or not the State, as the principal that
may ultimately be held liable, has given its consent to be sued. This ascertainment will
depend in the first instance on whether the government agency impleaded is
incorporated or unincorporated.

An incorporated agency has a charter of its own that invests it with a separate juridical
personality, like the Social Security System, the University of the Philippines and the City
of Manila. On the other hand, the unincorporated agency has no separate juridical

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personality but is merged in the general machinery of the government, like the
Department of Justice, the Bureau of Mines and the Government Printing Office.

If the agency is incorporated, the test of its suability is found in its charter. The simple
rule is that it is suable if its charter says so, and this is true regardless of the functions it is
performing. Municipal corporations like provinces and cities, are agencies of the State
when they are engaged in governmental functions and therefore should enjoy the
sovereign immunity from suits. They are subject to suit even in the performance of such
functions because their charter provides that they can sue and be sued. Unincorporated
agency, as there would be no charter and no separate juridical personality to consult, any
suit filed against it is necessarily an action against the Philippine Government of which it
is part of. This being so, it is necessary to determine the nature of the functions in which
the agency is engaged, so as to hold it suable if they are proprietary and not suable if they
are governmental. The test in every case is the nature of the primary functions being
discharged. The non-suability of the State is available to the agency even if it is shown
that it is engaged not only in governmental functions but also, as a sideline, or
incidentally in proprietary enterprises.

When a public officer is sued in the performance of his official acts and the ultimate
liablity rest upon the State. In such cases, it is important to determine if the State is real
party in interest, such as the claim if proved will be a direct liability of the State and not
merely of the officer impleaded.

Three denominators are common among these three considerations. First is that it must
require the government to disburse public funds to satisfy any award in that case or an
amount is appropriated, Second, it would mean loss of government property.

5. May the government validly invoke the doctrine of State immunity from suit if
its invocation will serve as an instrument for perpetrating an injustice on a
citizen?

Although the doctrine of State immunity is sometimes called “the royal prerogative of
dishonesty”, it must be observed in fairness that the State does not often avail itself of
this rule to take undue advantage of parties that may have legitimate claims against it. The
principle fortunately has a built-in qualification: the state may, if it so desires, divest
itself of its sovereign immunity and thereby voluntarily open itself to suit. In fine,
the state may be sued if it gives its consent.