HO # 2 - General Considerations

HAND OUT No.
2 – NATURE OF THE CONSTITUTION

& THE PHILIPPINES AS A STATE
By: Atty. Rene Callanta, Jr.
Constitutional Law I, 1st Semester, SY 2014-2015
P.U.P. College of Law
THE PHILIPPINES AS A STATE

I. STATE DEFINED.
 A State is a politically organized sovereign community, independent of outside control, bound by ties of
nationhood, legally supreme within its territory, and acting through government functioning under a
regime of law.1
 A State is a community of persons, more or less numerous, permanently occupying a fixed territory and
possessed of an independent government organized for political ends to which the great body of
inhabitants render habitual obedience. 2
THE ELEMENTS OF A STATE ARE THE FOLLOWING:
1) People refers simply to the inhabitants of the State.
2) Territory is the fixed portion of the surface of the earth inhabited by the people of the State.
3) Government is the agency or instrumentality through which the will of the State is formulated,
expressed and realized.
4) Sovereignty is the supreme and uncontrollable power inherent in a State by which that State is
governed.
II. COMPONENTS OF THE PHILIPPINE STATE
A. PEOPLE
 As a requisite for Statehood: The people comprising the state must be adequate enough for self
sufficiency and defence. Furthermore they must be of both sexes in order that they may perpetuate
themselves
1. Three meanings of the word "People"
The word "people" is used in at least three senses in the Constitution:
a. "People" as Inhabitants
Art. XIII, Section 1. The Congress shall give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity,
reduce social, economic, and political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common good.
Art. II, Section 15. The State shall protect and promote the right to health of the
people and instill health consciousness among them.
Section 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of nature.
Art. III, Section 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, xxx
 The right of an individual to be secure in his person is guaranteed by the

Constitution. Under our Constitution, the same is declared a popular right of the
1
CIR v. Campos -Rueda, 42 SCRA 23 (1971)
2
Prof. Samilo Barlongay quoting Garner, Introduction to Political Law, 41.)
Hand Out No. 2 in Political Law
Atty. Rene Callanta, Jr.
1st Semester, P.U.P. College of Law
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people and, of course, indisputably applies to both citizens and foreigners in this
country.3
b. People as Citizens
PREAMBLE - We, the sovereign Filipino people imploring the aid of Almighty God, in
order to build a just and humane society and establish a Government that shall
embody our ideals and aspirations, promote the common good, conserve and
develop our patrimony, and secure to ourselves and our posterity the blessings of
independence and democracy under the rule of law and a regime of truth, justice,
freedom, love, equality and peace, do ordain and promulgate this Constitution.
Art. II, Sec. 1. The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from them.
Art. II, Sec. 4. The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State and, in the
fulfillment thereof, all "citizens" may be required to render personal military or civil
service.
Art. III, Sec. 7. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents, and papers
pertinent to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizens
subject to limitations provided by law.
c. People as Electors
Art. VII, Sec. 4. The President and Vice-President shall be elected by direct vote of
the people xxx.
Art. XVI, Sec. 2. The Congress may, by law, adopt a new name for the country, a
national anthem, or a national seal, which shall all be truly reflective and symbolic of
the ideals, history, and traditions of the people. Such law shall take effect only upon
its ratification by the people in a national referendum.
Art. XVIII, Sec. 25. After the expiration in 1991 of the Agreement between
Republic of the Philippines and United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when Congress requires,
ratified by a majority of the votes cast by the people in a national referendum held
for that purpose, and recognized as a treaty by the other contracting party.
B. TERRITORY - The Archipelago Concept
Art. I. The national territory comprises the Philippine archipelago,

with all the islands and waters embraced therein, and all other
territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial, and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between, and connecting the
islands of the archipelago, regardless of their breadth and dimen-
sions, form part of the internal waters of the Philippines.
 In short, the Philippine territory consists of: (1) the Philippine archipelago, and
(2) all territories over which the Philippines has sovereignty or jurisdiction.
3
Qua Chee Gan vs. Deportation Board, 9 SCRA 27 (1963)
Page 3 of 33
1. The Philippine Archipelago
What comprises the Philippine Archipelago as stated in Article 1 of the 1987 Constitution?4
1) All the waters within the limits set forth in the:

a) Treaty of Paris of December 10, 1898 (Cession of the Philippine Islands by Spain to the U.S.),
b) between Spain and U.S., The Treaty of Spain and U.S. at Washington, November 1, 1900 (Cagayan,
Sulu & Sibuto),
c) Treaty between U.S. and Great Britain, January 2, 1930 (Turtle and Mangsee Islands);
2) All the waters around, between and connecting the various islands of the Philippine Archipelago,
irrespective of their width or dimension, have always been considered as necessary appurtenances of the
land territory, forming part of the inland or internal waters of the Philippines;
3) All the waters beyond the outermost islands of the archipelago but within the limits of the boundaries set
forth in the aforementioned treaties comprise the territorial sea of the Philippines.
4) The baselines from which the territorial sea of the Philippines is determined consist of straight lines
joining the appropriate points of the outermost islands of the archipelago (straight baseline method) ;
 The definition of the baselines of the territorial sea of the Philippine archipelago is without prejudice
to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in
North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.
ARCHIPELAGIC DOCTRINE
 Outermost points of the archipelago shall be connected by straight baselines and all
islands and waters therein are regarded as one integrated unit
 The basic concept of an archipelago is that body of water studded with islands, or the islands
surrounded with water, is viewed as a unity of islands and waters together forming one unit. This is
in contrast to a continent which is a single mass of land.
 The main purpose of the archipelagic doctrine is to protect the territorial interests of an archipelago.
If we follow the old rule of international law, it is possible that between islands, e.g. Bohol and
Siquijor, due to the more than 24 mile distance between the 2 islands, there may be high seas.
Thus, foreign vessels may just enter anytime at will, posing danger to the security of the State.
According to the doctrine, even these bodies of water within the baseline, regardless of breadth, form
part of the archipelago and are thus considered as internal waters.
 The archipelagic doctrine has a two-fold purpose: (1) economic reasons;(2) national security.
 The archipelagic doctrine is the principle that it is an integrated unit; everything within it comprises the
archipelago.
 The Constitutional provisions embodying this doctrine are:
1. "archipelago, with all the island and waters embraced therein"
2. "the waters around, between, and connecting the islands of the archipelago, regardless of the breadth
and dimensions, form part of internal water"
Method of determining the baselines
1. RA No. 3046 (17 June 1961)
4
Public International Law, Isagani Cruz
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 Determine appropriate points of the outermost Islands of the archipelago, then

connect them by means of a straight line until all islands are surrounded or enclosed
by the imaginary straight lines.
 "The baselines from which the territorial sea of the Philippines is determined consist
of straight lines joining appropriate points of the outermost islands of the
archipelago." (fifth whereas clause.)
2. RA No. 5446 (8 September 1968) - Sec. 2 of the Act provides that the definition of
the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice
to the delineation of the baselines of the territorial sea around the territory of Sabah,
situated in North Borneo, over which the Republic of the Philippines has acquired dominion
and sovereignty.
Uses of the baseline:
a. Basis for determining what comprises the internal water (all waters inside the baseline,
whether or not more than 12 miles from the shore).
b. Used to determine the 200 mile EEZ.
c. Basis for the Archipelagic Doctrine
 An archipelago is a body of water, studded with islands.
 Territorial sea means water outside the baseline extending up to 12 miles.
 Internal water refers to water within the baseline.
 Insular shelf means the land which is submerged under water which may extend
beyond 12 miles as long as it is not more than 300 ft. deep. It is also known as
intercontinental shelf.
2. Other territories over which the Philippines has sovereignty or jurisdiction
PD No. 1596 (11 June 1978)
 Claims the Kalayaan Group of Islands as part of Philippine territory on the basis of
historic rights and legal title.
 The claim was made "by reason of history, indispensable need, and effective
occupation and control established in accordance with international law. xxx"
3. The territorial sea, the sea bed, the subsoil, the insular shelves and other
submarine areas
4. Exclusive Economic Zone
 PD No. 1599 (11 June 1978). There is established an exclusive economic zone
extending "to a distance of two hundred (200) nautical miles beyond and from the
baselines from which the territorial sea is measured. Provided, That, where the
outer limits of the zone as thus determined overlap the exclusive economic zone of
an adjacent or neighboring state, the common boundaries shall be determined by
agreement with the state concerned or in accordance with pertinent generally
recognized principles or international law on delimitation." (Sec. 1 thereof.)
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Other states shall enjoy in the exclusive economic zone freedoms with respect to
navigations and overflight, the laying of submarine cables and pipelines, and other
internationally lawful uses of the sea relating to navigation and communications. (Sec. 4
thereof.)
Purposes:
1. Sovereign rights to explore, exploit, conserve and manage the natural resources, living
or non-living, renewable or non-renewable of the seabed, subsoil, and superadjacent
waters.
 Economic exploitation and exploration of the resources of the zone such as the
production of energy from the water, currents and winds.
2. Exclusive rights and jurisdiction with repect to the establishment and utilization of
artificial islands, off-shore terminals, installations and structures; the preservation of
the marine environment, including the prevention and control of pollution and scientific
research.
3. Such other rights as are recognized by international law.
Other states are prohibited from using the Exclusive Economic Zone to:
1. Explore or exploit any resources;

2. Carry out any search, excavation or drilling operations;
3. Conduct any research;
4. Construct or operate any artificial island, off-shore terminal, installation, or other
structure;
5. Perform any activity which is contrary to, or in derogation of, the sovereign rights and
jurisdiction herein provided.
Other states are allowed to use the Exclusive Economic Zone for:
1. Navigation and over flight;
2. Laying down of submarine cable and pipelines;
3. Other lawful uses related to navigation and communication.
 In case of overlapping of EEZs, the common boundaries are to be detemined by (i)

agreement and (ii) international rules on delimitations.
UN Convention on the Law of the Sea (30 April 1982.)
The exclusive economic zone which shall not extend beyond 200 nautical miles from
baselines from which the breadth of the territorial sea is measured, is recognized in the
UNCLOS, of which the Philippines is a signatory. Its concept is that although it is not part
of the territory, exclusive economic benefit is reserved for the country.
C. GOVERNMENT
1. Government is that institution or aggregate of institutions by which an

independent society makes and carries out those rules of action which are necessary to
enable men to live in a social state or which are imposed upon the people forming that
society by those who possess the power or authority of prescribing them. Government is
the aggregate of authorities which rule a society. (US v. Dorr, 2 Phil 332, 339).
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U.S. vs. Dorr, GR No. 1051, May 19, 1903 (2 Phil 332)
FACTS: The defendants were convicted upon a complaint charging them with the offence of writing, publishing,
and circulating a scurrilous libel against the Government of the United States and the Insular Government of the
Philippine Islands. The complaint is based upon Sec. 8 of Act No. 292 of the Commission which punishes any
person who shall "utter seditious words or speeches, write, publish, or circulate scurrilous libels against the U.S.
Government or the Insular Government of the Phil. Islands, or which tend to disturb or obstruct any lawful officer
in executing his office, or which tend to instigate others to cabal or meet together for unlawful purposes, or
which suggest or incite rebellious conspiracies or riots, or which tend to stir up the people against the unlawful
authorities".
The alleged libel was published as an editorial in the issue of the "Manila Freedom". The article mentioned about
the "foolish work that the Civil Commission is doing all over the Islands" referring to the appointment by the latter
of natives which were referred to as "insurgents" and "rogues" to important Government positions.
ISSUE: Whether the publication constitutes an offence under Sec. 8 of ACT. No. 292
HELD: NO. The term "government" as employed in ACT No. 292 of the U.S. Philippine Commission is used in the
abstract sense of the existing political system as distinguished from the concrete organism of the Government.
The article in question contains no attack upon the governmental system of the U.S., and it is quite apparent
that, though grossly abusive as respects both the Commission as a body and some of its individual members, it
contains no attack upon the governmental system by which the authority of the U.S. is enforced in these islands.
The form of Government by a Civil Commission and a Civil Governor is not assailed. It is the character of the
men who are instructed with the administration of the government that the writer is seeking to bring into
disrepute.
Note on the case:
Administration means the aggregate of those persons in whose hands the reins of the
govt are for the time being entrusted.
A. Functions
The government performs two kinds of functions, to wit, the constituent and the
ministrant.
 Constituent functions constitute the very bonds of society and are therefore
compulsory.
 Ministrant functions are those undertaken to advance the general interests of

society, such as public works, public charity, and regulation of trade and
industry.
Fontanilla vs. Maliaman, GR Nos. L-55963 & 61045, February 27, 1991 (194 SCRA 486)
HELD: It may not be amiss to state at this point that the functions of government have been classified into
governmental or constituent and proprietary or ministrant. The former involves the exercise of sovereignty and
considered as compulsory; the latter connotes merely the exercise of proprietary functions and thus considered
as optional.
 To our SC, however, the distinction between constituent and ministrant functions is not relevant in
our jurisdiction. In PVTA v. CIR, 65 SCRA 416, it reiterated the ruling in ACCFA v. Federation of
Labor Unions, 30 SCRA 649, that such distinction has been blurred because of the repudiation of
the laissez faire policy in the Constitution.
PVTA vs. CIR, GR No. L-32052, July 25, 1975 (65 SCRA 416)
HELD: "The growing complexities of modern society, however, have rendered this traditional classification of the
functions of government quite unrealistic, not to say obsolete. The areas which used to be left to private
enterprise and initiative and which the government was called upon to enter optionally, and only 'because it was
better equipped to administer for the public welfare than is any private individual or group of individuals,'
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continue to lose their well-defined boundaries and to be absorbed within activities that the government must
undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost
everywhere else the tendency is undoubtedly towards a greater socialization of economic forces. Here of course
this development was envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration
of principle concerning the promotion of social justice." Thus was laid to rest the doctrine in Bacani v. National
Coconut Corporation (100 Phil. 468), based on the Wilsonian classification of the tasks incumbent on government
into constituent and ministrant in accordance with the laissez faire principle. That concept, then dominant in
economics, was carried into the governmental sphere, as noted in a textbook on political science, the first edition
of which was published in 1898, its author being the then Professor, later American President, Woodrow Wilson.
He took pains to emphasize that what was categorized by him as constituent functions had its basis in a
recognition of what was demanded by the "strictest [concept of] laissez faire, [as they] are indeed the very bonds
of society." The other functions he would minimize as ministrant or optional.
It is a matter of law that in the Philippines, the laissez faire principle hardly commanded the authoritative position
which at one time it held in the United States. As early as 1919, Justice Malcolm in Rubi v. Provincial Board (39
Phil. 660), could affirm: "The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of
economic and political theory, are of the past. The modern period has shown a widespread belief in the amplest
possible demonstration of government activity." The 1935 Constitution, as was indicated earlier, continued that
approach. As noted in Edu v. Ericta (35 SCRA 481) : "What is more, to erase any doubts, the Constitutional
Convention saw to it that the concept of laissez-faire was rejected. It entrusted to our government the
responsibility of coping with social and economic problems with the commensurate power of control over
economic affairs. Thereby it could live up to its commitment to promote the general welfare through state
action." Nor did the opinion in Edu stop there: "To repeat, our Constitution which took effect in 1935 erased
whatever doubts there might be on that score. Its philosophy is a repudiation of laissez-faire.
B. Doctrine of Parens Patriae
 One of the important tasks of the government is to act for the State as parens patriae, or guardian of the
rights of the people.
 This prerogative of parens patriae is inherent in the supreme power every State, whether that power is
lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are
sometimes exerted by irresponsible monarchs to the great detriment of the people and the destruction of
their liberties.
 Blacks Law definition:

1) The state regarded as a sovereign: the state in its capacity as provider of protection to those unable to
care for themselves;
2) A doctrine by which a government has standing to prosecute a lawsuit in behalf of a citizen especially on
behalf of someone who is under legal disability to prosecute the suit. The State ordinarily has no standing
to sue in behalf of its citizens, unless a separate, sovereign interest will be served by the suit.
 Latin for "father of his country," the term for the doctrine that the government is the ultimate guardian of all
people under a disability, especially children, whose care is only "entrusted" to their parents. 5
C. De Jure and De Facto Governments
A de jure government has rightful title but no power or control, either because this has been withdrawn from it or
because it has not yet actually entered into the exercise thereof.
A de facto government, on the other hand, is a government of fact, that is, it actually exercises power or control
but without legal title.
The three kinds of de facto government are as follows:

(1) The government that gets possession and control of, or usurps, by force or by the voice of the majority, the
rightful legal government and maintains itself against the will of the latter.
(2) That established as an independent government by the inhabitants of a country who rise in insurrection
against the parent state.
(3) That which is established and maintained by military forces who invade and occupy a territory of the enemy
in the course of war, and which is denominated as a govt of paramount force, like the Second Republic of
the Philippines established by the Japanese belligerent.
5
Dictionary.Law.com
Page 8 of 33
The characteristics of this third kind of de facto government are:

(a) Its existence is maintained by active military power within the territories, and against the rightful authority of
an established and lawful govt.
(b) During its existence, it must necessarily be obeyed in civil matters by private citizens who, by acts of
obedience rendered in submission to such force, do not become responsible, as wrongdoers, for those acts,
though not warranted by the laws of the rightful govt.
2. "GOVERNMENT OF THE PHILIPPINES" defined
Bacani vs. NACOCO, GR No. L-9657, November 29, 1956 (100 PHIL 468)
DOCTRINE: TERM "GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES" CONSTRUED. — The term
"Government of the Republic of the Philippines" used in section 2 of the Revised Administrative Code refers to
that government entity through which functions of the government are exercised as an attribute of sovereignty,
and in this are included those arms through which political authority is made effective whether they be provincial,
municipal or other form of local government. These are what we call municipal corporations. They do not include
government entities which are given a corporate personality separate and distinct from the government and
which are governed by the Corporation Law, such as the National Coconut Corporation. Their powers, duties and
liabilities have to determined in the light of that law and of their corporate charters. They do not therefore come
within the exemption clause prescribed in section 16, Rule 130 of our Rules of Court.
HELD: NACOCO is a government entity organized to promote the coconut industry. In a litigation concerning
NACOCO, the government counsel appeared for it and obtained a transcript of stenographic notes. Under the
Rules of Court, the government is exempted from payment of the transcript. Is NACOCO part of the
government?
The SC held that it is not because NACOCO was organized to perform ministrant functions.
But according to Confederation of Government Employees vs. Agrarian Reform, the distinction between the two
functions of the government - constituent and ministrant - no longer holds under the 1935 Constitution, which
imposed a greater role on the government.
NATIONAL GOVERNMENT refers to the entire machinery of the central government, as

distinguished from the different forms of local governments.
D. SOVEREIGNTY
 "Sovereignty is the supreme and uncontrollable power inherent in a State by which the
State is governed. There are two kinds of sovereignty, to wit, legal and political.
Legal sovereignty is the authority which has the power to issue final commands
whereas political sovereignty is the power behind the legal sovereign, or the sum total
of the influences that operate upon it.
 Sovereignty may also be internal or external. Internal sovereignty refers to the power
of the State to control its domestic affairs. External sovereignty, which is the power of
the State to direct its relations with other States, is also known as independence. xxx"
(Cruz.)
 The supreme power of the State to govern persons and things within its territory.
 “Theory of Auto-Limitation” is the property of the State-force due to which a State has
exclusive legal competence of self-limitation and self-restriction (Jellinek).
 In Reagan v CIR, it was held that the provision in the military bases agreement giving
the US criminal jurisdiction over crimes committed even by Filipinos inside the bases is
not a derogation of Philippine sovereignty. The Philippines has the power to limit the
exercise of its sovereignty. When it allows a foreign State to use part of its territory
and waives jurisdiction over crimes committed therein, it does not give up part of its
sovereignty but only limits the exercise of its sovereignty."
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Kinds of Sovereignty
Legal Political Internal External

Refers to the Refers to the power Refers to the power Refers to the power
Authority that has behind legal of the state to of the state to
the power to issue sovereignty, ie; the control its domestic direct its relations
Final commands, different sectors affairs with other states
That is the Congress that mold public a.k.a. Independence
Opinion
Tanada v. Angara, GR No. 118295, May 2, 1997 (272 SCRA 18)
Is sovereignty really absolute?
HELD: While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it
is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly,
as a member of the family of nations. In its Declaration of Principles and State Policies, the Constitution "adopts
the generally accepted principles of international law as part of the law of the land, and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity, with all nations." By the doctrine of incorporation, the
country is bound by generally accepted principles of international law, which are considered to be automatically
part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda —
international agreements must be performed in good faith. "A treaty engagement is not a mere moral obligation
but creates a legally binding obligation on the parties . . . A state which has contracted valid international
obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of
the obligations undertaken."
1. DOMINIUM and IMPERIUM
Imperium refers to the State's authority to govern. It covers such activities as passing
laws governing a territory, maintaining peace and order over it, and defending it against
foreign invasion. When the State act in this capacity jure imperii, it generally enjoys
sovereign immunity.
Dominium refers to the capacity of the State to own property. It covers such rights as
title to land, exploitation and use of it, and disposition or sale of the same. The Regalian
doctrine whereby all lands of the public domain belong to the State, and anyone claiming
title has the burden to show ownership, comes within this concept. In this capacity jure
gestium, the State descends to the status of ordinary persons and thus becomes liable as
such."
 A state as a juridical person may act in the capacity of sovereign as well as owner.
xxx "As there are overtones indicative of skepticism, if not of outright rejection, of
the well-known distinction in public law bet. the governmental authority possessed
by the state which is appropriately embraced in the concept of sovereignty, and its
capacity to own or acquire prop., it is not inappropriate to pursue the matter
further. The former comes under the heading of imperium and the latter of
dominium. The use of this term is appropriate w/ reference to lands held by the
state in its proprietary character. In such capacity, it may provide for the
exploitation and use of lands and other natural resources, including their disposition,
except as limited by the Consti. Dean Pound did speak of the confusion that existed
during the medieval era bet. two such concepts, but did note the existence of res
publicae as a corallary to dominium. xxx [T]here was a recognition by J. Homes in
Carino v. Insular Gov't, that 'Spain in its earlier decrees embodied the universal
theory that all lands were held from the Crown***.' That was a concept of jus
regalia, w/c was adopted by the 1973 Consti., ownership however being vested in
the state as such rather than the head thereof. (Fernando 56.)
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Distinguish sovereignty from dominion.
Sovereignty is the right to exercise the functions of a State to the exclusion of any other
State. It is often referred to as the power of imperium, which is defined as the
government authority possessed by the State. On the other hand, dominion, or
dominium, is the capacity of the State to own or acquire property such as lands and
natural resources.6
2. TERRITORIAL, PERSONAL, and EXTRATERRITORIAL JURISDICTION
Jurisdiction is the manifestation of sovereignty.
 The jurisdiction of the state is understood as both its authority and the sphere of the
exercise of that authority. (Sinco 26.)
a. Territorial jurisdiction is the authority of the State to have all persons and things
within its territorial limits to be completely subject to its control and protection.
 When exercised in reference to persons or things found within the territory of the
state, it is known as territorial jurisdiction. All persons within that area, regardless
of nationality, are subject to the territorial jurisdiction of the state.
 The territorial jurisdiction of a state is sovereignty operating or applied within its

territory. Its scope and effect are expressed in this classic statement of Chief
Justice Marshall on the subject:
"The jurisdiction of the nation within its own territory is necessarily exclusive
and absolute. It is susceptible of no limitation not imposed by itself. Any
restriction upon it, deriving validity from an external source, would imply a
diminution of its sovereignty to the extent of the restriction, and an
investment of that sovereignty to the same extent in that power which would
impose such restriction. All exceptions, therefore, to the full and complete
power of a nation w/in its own territories, must be traced up to the consent of
the nation itself. They can flow from no other legitimate source. This consent
may be either express or implied." (Sinco 26-27.)
b. Personal jurisdiction is the authority of the state over its nationals, their persons,
property, and acts, whether within or outside its territory. The Civil Code provision that
prohibitory and mandatory laws follow citizens wherever they go is an example.
 When jurisdiction is exercised on the basis of the status of the persons affected,
independent of their presence or absence in the territory of the state, it is known as
personal jurisdiction. (Sinco 26.)
 The personal jurisdiction of the state is exercised over all its citizens within or
without its territory. It affects their person, property, and even some of their acts
performed abroad. The authority of the state to which they owe permanent
allegiance follows them at all times wherever they might reside and as long as their
membership of the state subsists. (Sinco 28.)
c. Extraterritorial jurisdiction is the authority of the State over persons, things or acts,
outside its territorial limits by reason of their effects to its territory. Art. 2 of the RPC is a
classic example of this.
6
Separate Opinion, Kapunan, J., in Isagani Cruz vs. Secretary of DENR, G.R. No. 135385, Dec. 6, 2000, En Banc
Page 11 of 33
 By agreement with other states, a state may establish its legal institutions outside
its territorial limits. Thus if a state does not have sufficient confidence in the
administration of justice and the system of law obtaining in a particular country, it
may enter into a treaty for the establishment of its own courts in the latter country
where its citizens or nationals may be tried.
 Regardless of treaty or agreement, however, a state has full authority to adopt rules
intended to apply to persons, whether citizens or aliens, and things found in the
territory of other states or on the high seas under certain conditions. Of course, the
actual enforcement of rules intended to have extraterritorial effect may be
accomplished only when the persons concerned are found w/in the territorial
jurisdiction of the state. To enforce them in the territorial limits of another state
would be to violate the sovereignty of the latter, unless this state gives its consent
thereto. Thus, we have Art. 2 of the Revised Penal Code:
"Art. 2. Except as provided in the treaties and laws of preferential

application, the provisions of this Code shall be enforced not only within the
Philippine Archipelago, including its atmosphere, its interior waters and
maritime zone, but also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship.
2. Should forge or counterfeit any coin or currency note of the Philippine
Islands or obligations and securities issued by the Government of the
Philippines.
3. Should be liable for acts connected with the introduction into these
islands of the obligations and securities mentioned in the preceding
number.
4. While being public officers or employees, should commit an offense in
the exercise of their functions; or
5. Should commit any of the crimes against national security and the law
of nations, defined in Title One of Book Two of this Code."
DOCTRINE OF STATE IMMUNITY FROM SUIT

(A) BASIS
i. Constitutional
Art. XVI, Sec. 3. The State may not be sued without its consent.
ii. Jurisprudence
Positivist theory: There can be no legal right as against the authority that makes the
laws on which the right depends.7
Sociological theory: If the State is amenable to suits, all its time would be spent
defending itself from suits and this would prevent it from performing its other functions.8
 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." (Cruz.)
Basis of the Doctrine of State Immunity

Ethical Practical
As to a local state As to a foreign state
"There can be no "Par in parem non The state will be
7
Justice Holmes as stated in the doctrinal case of Kawananakoa vs. Polyblank)
8
Republic vs. Villasor, 54 SCRA 83
Page 12 of 33
legal right against habet imperium" busy defending

the authority that Doctrine of sovereign itself from lawsuits
makes the law on equality of all states
which the right
depends"
Republic vs. Villasor, GR No. L-30671, November 28, 1973 (54 SCRA 83)
QUESTION: What is the reason behind the Doctrine of State Immunity from suit?
HELD: It is a fundamental postulate of constitutionalism flowing from the juristic concept of sovereignty that the
state as well as its government is immune from suit unless it gives its consent. It is readily understandable why it
must be so. A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on
the logical and practical ground that there can be no legal right as against the authority that makes the law on
which the right depends. (J. Holmes, Kawananakoa v. Polyblank, 205 US 349.) Sociological jurisprudence
supplies an answer not dissimilar. A continued adherence to the doctrine of non-suability is not to be deplored
for as against the inconvenience that may be caused private parties, the loss of governmental efficiency and the
obstacle to the performance of its multifarious functions are far greater if such a fundamental principle were
abandoned and the availability of judicial remedy were not thus restricted.
The State may not be sued without its consent. A corollary, both dictated by logic and sound sense from such a
basic concept is that public funds cannot be the object of a garnishment proceeding even if the consent to be
sued had been previously granted and the state liability adjudged. This is based on considerations of public
policy. Disbursements of public funds must be covered by the corresponding appropriation as required by law.
The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the
diversion of public funds from their legitimate and specific objects, as appropriated by law.
Department of Agriculture vs. NLRC, 227 SCRA 693 (1993) GR No. 104269
QUESTION: Why is the Doctrine of State Immunity from suit called “the Royal prerogative of dishonesty”?
HELD: The basic postulate enshrined in the Constitution that “The State may not be sued without its consent,”
reflects nothing less than a recognition of the sovereign character of the State and an express affirmation of the
unwritten rule effectively insulating it from the jurisdiction of courts . It is based on the very essence of
sovereignty. As has been aptly observed by Justice Holmes, a sovereign is exempt from suit, not because of any
formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as
against the authority that makes the law on which the right depends. 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. We have had occasion to explain in its defense,
however, that a continued adherence to the doctrine of non-suability cannot be deplored, for the loss of
governmental efficiency and the obstacle to the performance of its multifarious functions would be far greater in
severity than the inconvenience that may be caused private parties, if such fundamental principle is to be
abandoned and the availability of judicial remedy is not to be accordingly restricted.
QUESTION: Is the doctrine of State Immunity absolute?
HELD: The rule, in any case, is not really absolute for it does not say that the state may not be sued under any
circumstances. On the contrary 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 State's consent may be given either expressly or
impliedly. Express consent may be made through a general law (i.e., Commonwealth Act No. 327, as amended
by Presidential Decree No. 1445 [Sections 49-50], which requires that all money claims against the government
must first be filed with the Commission on Audit which must act upon it within sixty 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
thereby) or a special law. In this jurisdiction, the general law waiving the immunity of the state from suit is found
in Act No. 3083, where the Philippine government “consents and submits to be sued upon any money claim
involving liability arising from contract, express or implied, which could serve as a basis of civil action between
the private parties.” Implied consent, on the other hand, is conceded when the State itself commences litigation,
thus opening itself to a counterclaim or when it enters into a contract. 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.
(B) WHEN A SUIT IS AGAINST THE STATE AND WHEN IT IS NOT.

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A suit is against the State, regardless of who is named as the defendant, if it produces adverse consequences to
the public treasury in terms of disbursement of public funds and loss of government property.
 When a suit is against the State, it cannot prosper unless the State has given its consent.
In the following cases, however, the suit is not really against the State.
1. When the purpose of the suit is to compel an officer charged with the duty of making payments pursuant to an
appropriation made by law in favor of the plaintiff to make such payment. For in this case, the suit is not
really against the State, the State having acknowledged its liability to the plaintiff through the enactment of an
appropriation law. Rather, the suit is intended to compel performance of a ministerial duty. (Begoso v PVA,
32 SCRA 466 and Del Mar v PVA, 51 SCRA 340 both involving the War Widow Benefits Law due the
veterans.)
2. When from the allegations in the complaint, it is clear that the respondent is a public officer sued in a private
capacity.
3. When the action is not in personam with the government as the named defendant, but an action in rem that
does not name the government in particular.
Lansang vs. CA, GR No. 102667, February 23, 2000 (326 SCRA 259)
QUESTION: When is a suit against a public official considered a suit against the state and when is it not?
HELD: The doctrine of state immunity from suit applies to complaints filed against public officials for acts done in
the performance of their duties. The rule is that the suit must be regarded as one against the State where the
satisfaction of the judgment against the public official concerned will require the State itself to perform a positive
act, such as appropriation of the amount necessary to pay the damages awarded to the plaintiff.
The rule does not apply where the public official is charged in his official capacity for acts that are unlawful and
injurious to the rights of others. Public officials are not exempt, in their personal capacity, from liability arising
from acts committed in bad faith.
Neither does it apply where the public official is clearly being sued not in his official capacity but in his personal
capacity, although the acts complained of may have been committed while he occupied a public position.
Sanders vs. Veridiano II, GR No. L-46930, June 10, 1988 (162 SCRA 88)
The basic issue to be resolved in this case is whether or not the petitioners were performing their official duties
when they did the acts for which they have been sued for damages by the private respondents?
HELD: It is stressed at the outset that the mere allegation that a government functionary is being sued in his
personal capacity will not automatically remove him from the protection of the law of public officers and, if
appropriate, the doctrine of state immunity. By the same token, the mere invocation of official character will not
suffice to insulate him from suability and liability for an act imputed to him as a personal tort committed without
or in excess of his authority. These well-settled principles are applicable not only to the officers of the local state
but also where the person sued in its courts pertains to the government of a foreign state, as in the present case.
It is abundantly clear in the present case that the acts for which the petitioners are being called to account were
performed by them in the discharge of their official duties. Sanders, as director of the special services department
of NAVSTA, undoubtedly had supervision over its personnel, including the private respondents, and had a hand in
their employment, work assignments, discipline, dismissal and other related matters. It is not disputed that the
letter had written was in fact a reply to a request from his superior, the other petitioner, for more information
regarding the case of the private respondents. Moreover, even in the absence of such request, he still was within
his rights in reacting to the hearing officer's criticism — in effect a direct attack against him — that Special
Services was practicing "an autocratic form of supervision."
As for Moreau, what he is claimed to have done was write the Chief of Naval Personnel for concurrence with the
conversion of the private respondents' type of employment even before the grievance proceedings had even
commenced. Disregarding for the nonce the question of its timeliness, this act is clearly official in nature,
performed by Moreau as the immediate superior of Sanders and directly answerable to Naval Personnel in
matters involving the special services department of NAVSTA. In fact, the letter dealt with the financial and
Page 14 of 33
budgetary problems of the department and contained recommendations for their solution, including the re-
designation of the private respondents. There was nothing personal or private about it.
Given the official character of the above-described letters, we have to conclude that the petitioners were, legally
speaking, being sued as officers of the United States government. As they have acted on behalf of that
government, and within the scope of their authority, it is that government, and not the petitioners personally,
that is responsible for their acts. Assuming that the trial can proceed and it is proved that the claimants have a
right to the payment of damages, such award will have to be satisfied not by the petitioners in their personal
capacities but by the United States government as their principal. This will require that government to perform an
affirmative act to satisfy the judgment, viz., the appropriation of the necessary amount to cover the damages
awarded, thus making the action a suit against that government without its consent.
There should be no question by now that such complaint cannot prosper unless the government sought to be
held ultimately liable has given its consent to be sued. So we have ruled not only in Baer but in many other
decisions where we upheld the doctrine of state immumity as applicable not only to our own government but also
to foreign states sought to be subjected to the jurisdiction of our courts.
All this is not to say that in no case may a public officer be sued as such without the previous consent of the
state. To be sure, there are a number of well-recognized exceptions. It is clear that a public officer may be sued
as such to compel him to do an act required by law, as where, say, a register of deeds refuses to record a deed
of sale; or to restrain a Cabinet member, for example, from enforcing a law claimed to be unconstitutional; or to
compel the national treasurer to pay damages from an already appropriated assurance fund; or the commissioner
of internal revenue to refund tax overpayments from a fund already available for the purpose; or, in general, to
secure a judgment that the officer impleaded may satisfy by himself without the government itself having to do a
positive act to assist him. We have also held that where the government itself has violated its own laws, the
aggrieved party may directly implead the government even without first filing his claim with the Commission on
Audit as normally required, as the doctrine of state immunity "cannot be used as an instrument for perpetrating
an injustice."
Republic vs. Feliciano, GR No. 70853, march 12, 1987 (148 SCRA 424)
FACTS: Respondent Pablo Feliciano filed a complaint in the CFI (now RTC) of Camarines Sur against the Republic
of the Philippines, represented by the land authority, for the recovery of ownership and possession of a parcel of
land in Tinambac, Camarines Sur. He alleged that the lot in question should be excluded from the NARRA
settlement reservation program of the government under Proc. No. 90, since it's his private property being
covered by a possessory information title in the name of his predecessor-in-interest. (Proc. No. 90 reserves for
settlement purposes, under the administration of the NARRA, now the Land Authority, a tract of land situated in
the Municipalities of Tinambac and Siruma, Camarines Sur.) Feliciano prayed that he be declared the rightful
owner of the property in question.
A motion to dismiss, principally on the ground that the Republic of the Philippines cannot be sued without its
consent and hence the action cannot prosper, was filed by 86 settlers (as intervenors) of the land in question.
The CFI granted the motion to dismiss, which was then reversed by the IAC on appeal. Hence this petition by the
Republic.
ISSUES: 1. WON the doctrine of non-suability of the state can be invoked in this case . (YES)
HELD: The doctrine of non-suability of the State has proper application in this case. The plaintiff has impleaded
the RP as defendant in an action for recovery of ownership and possession of a parcel of land, bringing the State
to court just like any private person who is claimed to be usurping a piece of property. A suit for the recovery of
property is not an action in rem, but an action in personam.
By its caption and its allegation and prayer, the complaint is clearly a suit against the State, which under settled
jurisprudence is not permitted, except upon a showing that the State has consented to be sued, either expressly
or by implication through the use of statutory language too plain to be misinterpreted. There is no such showing
of consent in the instant case. Worse, the complaint itself fails to allege the existence of such consent. This is a
fatal defect, and on this basis alone, the complaint should have been dismissed.
The failure of the petitioner to assert the defense of immunity from suit when the case was tried before the court
a quo, as alleged by private respondent, is not fatal. It is now settled that such defense "may be invoked by the
courts sua sponte at any stage of the proceedings."
Page 15 of 33
2. WON the consent of the RP may be read from Proc. No. 90 itself. (NO)
HELD: The exclusion of existing private rights from the reservation established by Proc. no. 90 cannot be
construed as a waiver of the immunity of the State from suit. Waiver of immunity, being in derogation of
sovereignty, will not be inferred lightly, but must be construed in strictissimi juris. Moreover, the Proclamation is
not a legislative act. 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.
Begosa vs. Chairman, Philippine Veterans Adm., GR No. L-25916, April 30, 1970 (32 SCRA 466)
FACTS: Gaudencio Begosa, plaintiff-appellee, was an "enlisted men of the Philippine Commonwealth Army,
inducted in the service of the USAFFE" having taken "active participation in the battle of Bataan" as well as the
"liberation drive against the enemy" thereafter became "permanently incapacitated from work due to injuries he
sustained in line of duty xxx."
Plaintiff filed his claim for disability pension as far back as March 4, 1955; but it was erroneously disapproved on
May 21, 1955, because his dishonorable discharge from the Army was not a good or proper ground for the said
disapproval, and that on reconsideration asked for by him on November 1, 1957, which he continued to follow
up, the Board of Administrators, Philippine Veterans Administration (PVA), finally approved his claim on
September 2, 1964, at the rate of P30/mo. Judge Soriano noted that: "had it not been for the said error, it
appears that there was no good ground to deny the said claim, so the latter was valid and meritorious even as of
the date of its filing on March 4, 1955, hence to make the same effective only as of the date of its approval on
September 2, 1964 - according to defendants stand - would be greatly unfair and prejudicial to plaintiff.
The appeal assigns as one error what it considers to be the failing of the LC in not holding that the complaint in
this case is in effect a suit against the State which has not given its consent thereto.
HELD: It does not admit of doubt that if the suit were in fact against the State, the Lower Court should have
dismissed the complaint. Nor is it to be doubted that while ostensibly an action may be against a public official,
the defendant may in reality be the government. As a result, it is equally well-settled that where a litigation may
have adverse consequences on the public treasury, whether in the disbursement of funds or loss of prop., the
public official proceeded against not being liable in his personal capacity, then the doctrine of non-suability may
appropriately be invoked. It has no application, however, where the suit against such a functionary had to be
instituted because of his failure to comply w/ the duty imposed by statute appropriating public funds for the
benefit of plaintiff or petitioner. Such is the present case.
However, where the judgement in such a case would result not only in the recovery of possession of the property
in favour of said citizen but also in a charge against or financial liability of the Government, then the suit should
be regarded as one against the government itself, and consequently, it cannot prosper or be validly entertained
by the courts except with the consent of said Government.
Del Mar v. Philippine Veterans Administration (PVA), 51 SCRA 340 (1973) GR No. L-27299
FACTS: Del Mar averred that he served during WW II as chief judge advocate of the Cebu Area Command (a
duly recognized guerrilla organization) with the rank of major; that he subsequently obtained an honorable
discharge from the service on October 20, 1946 on a certificate of permanent total physical disability; that upon
proper claim presented and after hearing and adjudication, the Phil. Veterans Board granted him a monthly life
pension of P50 effective January 28, 1947; that in March 1950, the said Board discontinued payment of monthly
life pension on the ground that his receipt of similar pension from the US Government, thru the US Veterans
Administration by reason of military service rendered in the US in the Far East during the war, precluded him
from receiving any further monthly life pension from the Philippine Government; that he wrote the said Board
twice, demanding the continued payment of his monthly pension but his demands went unheeded. And petition
for mandamus was filed with CFI-Cebu which rendered judgment upholding Del Mar's claim.
The PVA argues that the court a quo was without jurisdiction to try the civil case because it involves a money
claim against PVA - a mere agency of the Govt performing governmental functions with no juridical personality of
its own- and, in reality, partakes of an action against the Phil. Govt which is immune from suit without its
consent.
HELD: As a general proposition, the rule on the immunity of the Govt from suit without its consent holds true in
all actions resulting in "adverse consequences on the public treasury, whether in the disbursements of funds or
loss of property. Needless to say, in such actions, which, in effect, constitute suits against the Government, the
court has no option but to dismiss them. Nonetheless, the rule admits of an exception. It finds no application
Page 16 of 33
where a claimant institutes an action against a functionary who fails to comply with his statutory duty to release
the amount claimed from the public funds already appropriated by statute for the benefit of the said claimant. As
clearly discernible from the circumstances, the case at bar falls under the exception.
Shauf vs. CA, 191 SCRA 713 (1990) GR No. 90314
Doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his
private and personal capacity as an ordinary citizen.
FACTS: By reason of her non-selection to a position at Clark Air Base, Shauf filed an equal opportunity complaint
against officers of Clark Air Base, for alleged discrimination against the former by reason of her nationality and
sex. She then filed a complaint for damages with the RTC. Respondents filed a MTD on the ground that as
officers of the US Armed Forces performing official functions in accordance with the powers vested in them, they
are immune from suit.
Shauf contends that the officers are being sued in their private capacity for discriminatory acts performed beyond
their authority, hence the instant action is not a suit against the US Govt. which would require its consent.
According to respondents, the complaint is barred by the immunity of the US since the acts sued upon are
governmental activities of the US.
HELD: 1. The general rule is that a state may not be sued without its consent. While the doctrine appears to
prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of
the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment
against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as
against the state itself, although it has not been formally impleaded.
2. It is a different matter where the public official is made to account in his capacity as such for acts contrary to
law and injurious to the rights of plaintiff. Inasmuch as the State authorizes only legal acts by its officers,
unauthorized acts of govt. officials or officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a
suit against the State within the rule of immunity of the State from suit. The doctrine of state immunity cannot be
used as an instrument for perpetrating an injustice.
3. The cloak of immunity is removed from the moment the public official is sued in his individual capacity such as
where he acts without authority or in excess of the powers vested in him. A public official may be liable in his
personal capacity for whatever damage he may have caused by his act done with malice and in bad faith, or
beyond the scope of his authority or jurisdiction. In this case, the officers are liable for damages.
Republic vs. Sandoval, GR No. 84607, March 19, 1993 (220 SCRA 124)
ISSUE: WON herein public officials, having been found to have acted beyond the scope of their authority, may
be held liable for damages.
FACTS: The heirs of the 12 rallyists who perished during the Mendiola massacre filed an action for damages.
Such action was filed against the government. This was by virtue of a recommendation made by the Citizen's
Mendiola Commission (created for the purpose of conducting an investigation of the disorder, deaths and
casualties that took place during the Mendiola incident.) that the heirs and wounded victims of the incident be
compensated by the Govt. Notwithstanding such recommendation, no concrete form of compensation was
received by the victims. The Caylo Group (the group of marchers in the said incident) filed a formal letter of
demand from the govt. Still unheeded for almost a year, the group filed an action against the government,
together with the military officers and personnel involved in the incident before the trial court. Respondent Judge
dismissed the complaint as against the RP on the ground that there was no waiver by the Sate.
HELD: 1. The principle of immunity from suit is based on the very essence of sovereignty, and on the practical
ground that there can be no legal right as against the authority that makes the law on which the right depends.
It also rests on reasons of public policy -- that public service would be hindered, and the public endangered, if the
sovereign authority could be subjected to law suits at the instance of every citizen and consequently controlled in
the uses and dispositions of the means required for the proper administration of the government.
2. This is not a suit against the State with its consent. Firstly, the recommendation made by the Mendiola
Commission regarding indemnification of the heirs and the victims of the incident by the government does not in
any way mean that liability automatically attaches to the State. The Commission was merely a fact-finding body
Page 17 of 33
and its recommendation was not final and executory. Secondly, whatever acts or utterances that President
Aquino may have done or said, the same are not tantamount to the State having waived its immunity from suit.
Although consent to be sued may be given impliedly, such consent was not given in this case.
3. Some instances when a suit is against the State:

(1) when the Republic is sued by name;
(2) when the suit is against an unincorporated govt. agency;
(3) when the suit is on its face against a govt. officer but the case is such that the ultimate liability will
belong not to the officer but to the govt.
In this case, while the Republic is sued by name, the ultimate liability does not pertain to the government
Although the military officers were discharging their official functions when the incident occurred, their functions
ceased to be official the moment they exceeded their authority. Immunity from suit cannot institutionalize
irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the
Republic.
The principle of state immunity from suit does not apply, as in this case, when the relief demanded by the suit
requires no affirmative official action on the part of the State nor the affirmative discharge of any obligation w/c
belongs to the State in its political capacity, even though the officers or agents who are made defendants claim to
hold or act only by virtue of a title of the state and as its agents and servants.
They are therefore liable for damages.
(C) CONSENT TO BE SUED
How consent is given
The consent to be sued, in order to be effective, must come from the State, acting
through a duly enacted statute. Waiver of state immunity can only be made by an act of
legislative body.
In Republic v Purisima, 78 SCRA 470 (1977), the SC held that a contract entered into by the Rice
and Corn Administration stipulating that in the event of breach, action may be filed by the
parties, cannot be the basis of a money claim against the RCA, a government entity under
the Office of the President, since the RCA had no authority to bind the government to be
sued. Only a statute could.
Republic vs. Purisima, GR No. L-36084, August 31, 1977 (78 SCRA 470)
Suability of the State. The Need for a Statute Giving Consent
FACTS: The Rice & Corn Administration (RCA) entered into a contract with the Yellow Ball Freight Lines in which
they agreed that in the event of breach, action may be filed with the courts of Manila. In 1972, Yellow Ball filed a
money claim against RCA. The case was assigned to respondent Judge, who denied a motion to dismiss filed by
RCA relying on the stipulation in the contract of the parties.
HELD: The RCA is part of the govt, being in fact an office under the Office of the President and therefore cannot
be sued w/o the consent of the State. The consent to be effective.... must come from the State, acting thru a
duly enacted statute. Thus, whatever counsel for def. RCA agreed to, had no binding force in the govt. That was
clearly beyond the scope of his authority.
In Republic v Feliciano, 148 SCRA 424, the SC held that the Proclamation of the President of
the Philippines (recognizing private rights to the land) cannot be the source of consent,
since the Proclamation is not a legislative act.
Express consent:
(1) Money claims arising from contracts, express or implied.
Act No. 3083.

Page 18 of 33
An Act Defining the Conditions under which the

Government of the Philippines may be Sued.
Sec. 1. Subject to the provisions of this Act, the Government of the Philippines 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.
Sec. 2. A person desiring to avail himself of the privilege herein conferred must show that he
has presented his claim to the Commission on Audit and that the latter did not decide the same
within two months from the date of its presentation.
Sec. 3. Original actions brought pursuant to the authority conferred in this Act shall be instituted
in the Regional Trial Court of the City of Manila or of the province where the claimant resides, at
the option of the latter, upon which court exclusive original jurisdiction is hereby conferred to
hear and determine such actions.
Sec. 4. Actions instituted as aforesaid shall be governed by the same rules of procedure, both
original and appellate, as if the litigants were private parties.
Sec. 5. When the Government of the Philippines is plaintiff in an action instituted in any court of
original jurisdiction, the defendant shall have the right to assert therein, by way of set-off or
counterclaim in a similar action between private parties.
Sec. 6. Process in actions brought against the Government of the Philippines pursuant to the
authority granted in this Act shall be served upon the Solicitor-General whose duty it shall be to
appear and make defense, either himself or through delegates.
Sec. 7. No execution shall issue upon any judgment rendered by any court against the
Government of the Philippines under the provisions of this Act; but a copy thereof duly certified
by the clerk of the Court in which judgment is rendered shall be transmitted by such clerk to the
President of the Philippines, within five days after the same becomes final.
Sec. 8. The President of the Philippines, at the commencement of each regular session of the
Legislature, shall transmit to that body for appropriate action all decisions so received by him,
and if said body determine that payment should be made, it shall appropriate the sum which the
Government has been sentenced to pay, including the same in the appropriations for the ensuing
year.
Sec. 9. This Act shall take effect on its approval.
Approved, March 16, 1923.
Com. Act 327.

An Act Fixing the Time within which the Auditor General
shall Render His Decisions and Prescribing the
Manner of Appeal Therefrom.
Sec. 1. In all cases involving the settlement of accounts or claims, other than those of
accountable officers, the Auditor General shall act and decide the same within sixty days,
exclusive of Sundays and holidays, after their presentation. If said accounts or claims need
reference to other persons, office or offices, or to a party interested, the period aforesaid shall be
counted from the time the last comment necessary to a proper decision is received by him. With
respect to the accounts of accountable officers, the Auditor General shall act on the same within
one hundred days after their submission, Sundays and holidays excepted.
In case of accounts or claims already submitted to but still pending decision by the Auditor
General on or before the approval of this Act, the periods provided in this section shall commence
from the date of such approval.
Sec. 2. The party aggrieved by the final decision of the Auditor General in the settlement of an
account or claim may, within thirty days from receipt of the decision, take an appeal in writing:
(a) xxx
Page 19 of 33
(b) To the President of the Philippines, or

(c) To the Supreme Court of the Philippines, if the appellant is a private person or entity.
If there are more than one appellant, all appeals shall be taken to the same authority resorted to
by the first appellant.
From a decision adversely affecting the interests of the Government, the appeal may be taken by
the proper head of the department or in case of local governments by the head of the office or
branch of the Government immediately concerned.
The appeal shall specifically set forth the particular action of the Auditor General to which
exception is taken with the reasons and authorities relied on for reversing such decision.
Sec. 3. This Act shall take effect upon its approval.
Approved, June 18, 1938.
Sec. 2 of CA 327 has been amended by Sec. 50 of PD 1445 and by Sec. 35, Chapter 5,
Subtitle B, Title I, Book V, Administrative Code of the Philippines, as follows:
Sec. 50. Appeal from decisions of the Commission.-- The party aggrieved by any
decision, order, or ruling of the Commission may within thirty days from his receipt of a copy
thereof appeal on certiorari to the Supreme Court in the manner provided by law and the Rules
of Court. When the decision, order, or ruling adversely affects the interests of any government
agency, the appeal may be taken by the proper head of that agency. (PD 1445.)
Sec. 35. Appeal from Decision of the Commission.-- Any decision, order or ruling of the
Commission may be brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from his receipt of a copy thereof in the manner provided by law and the Rules of
Court. When the decision, order or ruling adversely affects the interest of any government
agency, the appeal may be taken by the proper head of that agency. (Subtitle B, Title I, Book V,
Administrative Code of the Philippines.)
Before the 1987 Constitution, the law in force was Act No. 3038 and CA No. 327 which, according to Sayson v.
Singson (a suit to compel payment of electrical supplies delivered to CAA), allowed suit only for money claims
arising from contract, and providing a special procedure.
Under this procedure, the claim must be filed with the Auditor General (now, COA). If the Auditor did not act
within 60 days, then the claimant could file his claim with the RTC. But if the Auditor rendered a decision, then
the appeal could be made to the SC, unless the claimant was a public official in which case appeal was to the
President.
Art. IX of the 1987 Constitution now gives a different procedure. All money claims are to be filed with COA,
which has 60 days within which to act. If it fails to so act, the claimant must wait anyway. Once a decision has
been made, he has, within 30 days to appeal by certiorari to the SC.
Sayson vs. Singson, GR No. L-30044, December 19, 1973 (54 SCRA 282)
FACTS: In 1/67, the Office of the District Engr. requisitioned various spare parts for the repair of a D-8 Bulldozer.
A public bidding for the said items was conducted wherein the awards committee accepted the winning bid of
P43,530 given by Singkier Motor Service owned by resp. Singson. Said award was approved by the Sec. of Public
Works and Comm. who then directed the immediate delivery of the parts. In due course, the voucher w/c
covered the transaction reached the hands of petitioner Highway Auditor Sayson who then made inquiries about
the reasonableness of the price. After finding the price reasonable (as was evidenced by the indorsements of the
Div. Engr. and the Comm. of Public Highways, the approval of the Sec. of PW & C, and the verification of the
representative of the Bureau of Supply Coordination), petitioner approved and effected payment of the voucher
and withheld the 20% equivalent of P8,706 in order to submit the documents covering the transaction to the
Supervising Auditor for review. After making a canvass, the General Auditing Office determined the transaction
to be overpriced by at least P40,000. Malversation charges were failed against the district engr. and civil engr.
involved. A mandamus suit was filed by the resp. w/c sought to compel petitioner government auditors to
approve the payment of the voucher covering the balance. The LC decided in favor of resp. Singson. Hence this
appeal by certiorari.
Page 20 of 33
HELD: It is apparent that resp. Singson's cause of action is a money claim against the Govt, for the payment of
the alleged balance of the cost of spare parts supplied by him to the Bureau of Public Highways. Assuming
momentarily the validity of such claim, mandamus is not the remedy to enforce the collection of such claim
against the State ***, but an ordinary action for specific performance***. Actually, the suit disguised as one for
mandamus to compel the Auditors to approve the vouchers for payment, is a suit against the State, w/c cannot
prosper or be entertained by the Court except w/ the consent of the State***. In other words, the resp. should
have filed his claim w/ the General Auditing Office, under the provisions of CA 327*** w/c prescribe the
conditions under w/c money claim against the government may be filed.
It is true that once consent is secured, an action may be filed. There is nothing to prevent the State, however, in
such statutory grant, to require that certain administrative proceedings be had and be exhausted. Also, in the
proper forum in the judicial hierarchy can be specified if thereafter an appeal would be taken by the party
aggrieved. Here, there was no ruling of the Auditor Gen. Even had there been such , the court to w/c the matter
should have been elevated is this Tribunal; the LC could not legally act on the matter.
(2) Quasi-delicts committed by special agents
Art. 2180. The obligation imposed by article 2176 is demandable not only
for one's own acts or omissions, but also for those of persons for whom one is
responsible.
xxx
The State is responsible in like manner when it acts through a special agent,
but not when the damage has been caused by the official to whom the task done
properly pertains, in which case what is provided in Art. 2176 shall be applicable.
xxx (Civil Code.)
Art. 2176. Whoever by act or omission causes damage to another, there

being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter. (ibid.)
Art. 2180 of the Civil Code allows a suit against the government for quasi-delicts committed by the government
when acting through special agents (those performing non-regular functions)
But if the tortious act was committed by a regular employee, the injured party could only bring a suit for
damages against the employee in his personal capacity.
It should be noted in this connection, that in Merritt vs. Govt. of the Philippine Islands, 34 Phil 311, the SC
said that it is therefore evident that the State is only liable for acts of its agents, officers and EEs when they act
as special agents within the meaning of Art. 1903 (now Art. 2180) and that the chauffeur of the ambulance of the
General Hospital was not such agent. In this case, the Philippine General Hospital (PGH), the agency involved,
did not yet have separate legal personality from the Philippine Govt. It should further be noted that the plaintiff
was allowed to sue by virtue of a special law but was unable to hold the defendant govt. liable since the injuries
were caused by a regular driver of the govt. and not a special agent.
Merritt vs. Government of the Philippine Islands, GR No. L-11154, March 21, 1916 (34 Phil 311)
FACTS: Merritt, while riding his motorcycle was hit by an ambulance owned by the Philippine General Hospital. It
was driven by a driver employed by the hospital. In order for Merritt to sue the Philippine government, Act No.
2457 was enacted by the Philippine Legislature authorizing E. Merritt to bring suit against the Government of the
Philippine Islands and authorizing the Attorney-General of said Islands to appear in said suit. A suit was then
filed before the CFI of Manila which fixed the responsibility for the collision solely on the ambulance driver and
determined the amount of damages to be awarded to Merritt. Both parties appealed from the decision, plaintiff
Merritt as to the amount of damages and defendant in rendering the amount against the government.
ISSUE: Did the defendant in enacting Act No. 2457 simply waive its immunity from suit or did it also concede its
liability to the plaintiff?
HELD: By consenting to be sued, a state simply waives its immunity from suit. It does not thereby concede its
liability to the plaintiff, or create any cause of action in his favor, or extend its liability to any cause not previously
Page 21 of 33
recognized. It merely gives a remedy to enforce a pre-existing liability and submit itself to the jurisdiction of the
court, subject to its right to interpose any lawful defense.
Act No. 2457 authorizes E. Merritt to bring suit for the purpose of fixing the responsibility for the collision and
determining the amount of damages, if any, to which E. Merritt is entitled on account of said collision. The
government did not assume any liability under the Act.
The Government of the Philippine Islands is only liable, for the acts of its agents, officers and employees when
they act as special agents within the meaning of paragraph 5 of A1903, OCC (par. 6, Art. 2180, NCC). A special
agent is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his
office if he is a special official. The special agent acts in representation of the state and executes the trust
confided to him. This concept does not apply to any executive agent who is an employee of the active
administration and who on his own responsibility performs the functions w/c are inherent in and naturally pertain
to his office and w/c are regulated by law and the regulations. The responsibility of the State is limited to that
w/c it contracts through a special agent, duly empowered by a definite order or commission to perform some act
or charged w/ some definite purpose w/c gives rise to the claim, and not were the claim is based on acts or
omissions imputable to a public official charged w/ some administrative or technical office who can be held to the
proper responsibility in the manner laid down by the law of civil responsibility. The chauffeur of the ambulance
of the General Hospital was not such an agent.
US vs. Ceballos, GR No. 80018, February 26, 1990 (182 SCRA 644)
FACTS: Resp. was employed as barracks boy in Camp O'Donnel, and was arrested following a buy-bust operation
conducted by petitioners, who are officers of the US Air Force and special agents of the Air Force Office of Special
Investigators. Petitioners filed charges against resp. for violation of RA 6425 and testified against him at the trial.
Respondent was dismissed from employment as a result of the filing of the charge. Resp. filed a complaint for
damages against petitioners for his removal. Defendants (petitioners herein) filed the affirmative defense that
they had only done their duty in the enforcement of Phil. laws inside the American bases pursuant to the RP-US
MBA. Later, their counsel filed a motion to withdraw answer and moved for the dismissal of the complaint on the
ground that defendants were acting in their official capacity and that the complaint against them was in effect a
suit against the US w/o its consent.
HELD: Petitioners cannot be directly impleaded for acts imputable to their principal which has not given its
consent to be sued. Petitioners were acting in the exercise of their official functions when they conducted the
buy-bust operation.
Private resp. invoke Art. 2180, NCC w/c holds the govt liable if it acts through a special agent. The argument, it
would seem, is premised on the ground that since the officers are designated as "special agents," the US govt
should be liable for their torts.
Suability v. Liability. There seems to be a failure to distinguish between suability and liability. Suability depends
on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance
that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it
does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be
sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it
can, that the defendant is liable.
The said article establishes a rule of liability, not suability. The govt may be held liable under this art. only if it
first allows itself to be sued through any of the accepted forms of consent.
Moreover, the agent performing his regular functions is not a special agent even if he is so denominated, as in
the case at bar. No less important, the said provision appears to regulate only the relations of the local state w/
its inhabitants and, hence, applies only to the Phil. govt and not to foreign govts impleaded in our courts.
We reject the conclusion of the trial court that the answer filed by the special counsel of the Office of the Sheriff
Judge Advocate of Clark Air Base was a submission by the US govt to its jurisdiction. Express waiver of immunity
cannot be made by a mere counsel of the govt but must be effected through a duly-enacted statute. Neither
does such answer come under the implied forms of consent.
NOTES on the consolidated cases US v. Guinto, et al.:

Page 22 of 33
1. The doctrine of state immunity is sometimes derisively called the "royal prerogative of
dishonesty" because of the privilege it grants the state to defeat any legitimate claim
against it by simply invoking its non-suability. This implies however that the State may
be sued with its consent.
2. The consent of the state to be sued may be manifested expressly or impliedly. Express
consent may be embodied in a general law or a special law. Express consent is effected
only by the will of the legislature through the medium of a duly enacted statute. Consent
is implied when the state enters into a contract or it itself commences litigation. When
the govt. enters into a contract, it is deemed to have descended to the level of the other
contracting party and divested of its sovereign immunity from suit with its implied
consent. However, distinctions must be made between sovereign and proprietary acts.
The state may only be liable for proprietary acts. As for the filing of a complaint by the
govt., suability will result only where the govt. is claiming afffirmative relief from the
defendant.
3. There is no question that the US will be deemed to have impliedly waived its non-
suability if it has entered into a contract in its proprietary or private capacity. It is only
when the contract involves its sovereign or governmental capacity that no such waiver
may be implied.
4. In this case, by entering into an employment contract [a proprietary function] with the
respondents, the US impliedly divested itself of its sovereign immunity. The state could
therefore be sued since such contracts are commercial in nature.
(3) Incorporation of government-owned or controlled corps.
Suits against government agencies

A) Incorporated Agency
 Test of suability is found in its charter
B) Unincorporated Agency
 Test of suability depends upon the primary functions it discharges
When the government creates a corporation, it invariably provides this corporation a

separate entity and with the capacity to sue and be sued. If the government entity is
given the capacity to be sued, the suit encompasses any kind of action, including one
from tort.
In SSS v. CA, 120 SCRA 707 (1983), the property of one Socorro Cruz was foreclosed due to the
negligence of the regular employees of SSS in mistaking her account, which was updated,
with that of another Socorro Cruz, which was in arrears. The SC, in granting nominal
damages to the claimant, seemed to be saying that SSS could have invoked the defense
of Art. 2180, which it did not. The separate opinion of Makasiar enunciated this. [Note:
Consent to be sued includes actions based on quasi-delict even though committed by
regular agents and not by special agents.]
So the rule, it seems, is that a government entity can be sued for tort, but if it is, it can
invoke the defense that it acted through its regular employees, not special agents.
PNB vs. CIR, GR No. L-32667, January 31, 1978 (81 SCRA 314)
Since the PHHC had the capacity to be sued, any judgment against it could be enforced by a writ of execution,
and its funds could even be garnished.
FACTS: The United Homesite Employees and Laborers Association of the People's Homesite and Housing
Corporation (PHHC) in a case filed before the Court of Industrial Relations prevailed over PHHC. The final and
executory judgment was sought to be enforced via a writ of garnishment against PHHC's funds deposited with
Page 23 of 33
PNB. PNB sought to quash the writ alleging that the funds were "public in character." The motion was denied,
hence this petition for certiorari alleging grave abuse of discretion in denying the motion.
HELD: PHHC was a government-owned entity. It has personality distinct and separate from the government. It
has all the powers of a corporation under the Corporation Law, accordingly it may sue and be sued and may be
subjected to court processes just like any other corporation. By engaging in business through the instrumentality
of a corp., the govt divests itself of its sovereign character, so as to render the corp. subject to the rules
governing private corporations. Garnishment is a proper remedy for a prevailing party to proceed against the
funds of a corporate entity even if owned or controlled by the government. It is well-settled that when the
government enters into commercial business, it abandons its sovereign capacity and is to be treated just like any
other corporation. (The case was based primarily on NASSCO v CIR, 118 Phil 782.)
Rayo vs. CFI of Bulacan, GR No. L-55273-83 (110 SCRA 456)
FACTS: Petitioners are among the many victims of the flooding caused by the simultaneous opening of the three
floodgates of Angat Dam during the height of typhoon "Kading". The complaints they filed before the CFI of
Bulacan were dismissed for the reason that the NPC in the operation of the Angat Dam is `performing a purely
governmental function,' thus it `can not be sued without the express consent of the State.' Respondent CFI
denied MRecon, hence, this petition.
HELD: The government has organized a private corporation, put money in it and has allowed it to sue and be
sued in any court under its charter [RA 6395, Sec. 3(d)]. As a government owned and controlled corporation, it
has a personality of its own, distinct and separate from that of the Government (NASSCO v CIR). Moreover, the
charter provision that the NPC can "sue and be sued in any court" is without qualification on the cause of action
and accordingly it can include a tort claim such as the one instituted by petitioners.
SSS V. CA, GR No. L-41299, February 21, 1983 (120 SCRA 707)
FACTS: The Spouses David and Socorro Cruz obtained a loan from SSS on the security of a lot located in Sto.
Rosario, Pateros, Rizal. Claiming that the couple had defaulted in the payment of the monthly amortizations, the
SSS applied for the foreclosure of the mortgage. As a result the sheriff scheduled the sale of the prop.
mortgaged and notice of the sale was published. It turned out that while the couple failed to pay some of the
amortizations on time, at the time of the application for foreclosure, their account was up to date. The SSS
mistook the couple's account for that of another one bearing the same name Socorro Cruz, although w/ different
middle name. The spouses sued SSS for damages.
HELD: (1) Having accepted the late payments of the monthly instalments, the SSS could not suddenly and w/o
prior notice to the couple apply for the extrajudicial foreclosure of their mortgage. There was negligence on the
part of the SSS when it mistook the loan account of Socorro J. Cruz for that of Socorro C. Cruz. Its attention was
called to the error but it refused to acknowledge its mistake. SSS should, thus, be held liable for nominal
damages.
(2) Under its charter [RA 1161, sec. 4(k)] the SSS can sue and be sued. So, even assuming that the SSS enjoys
immunity from suit as an entity performing governmental functions by virtue of the explicit provision of the
enabling law, it can be sued. The government must be deemed to have waived immunity in respect of the SSS,
although it does not thereby concede its liability.
Makasiar, dissenting:
xxx. The provision that it can be sued and be sued merely allows a private citizen a remedy for the enforcement
of his rights but always subject to the defense of the govt. Since under Art. 2180, NCC the State is liable for tort
only when it acts through special agents but not when it acts through officials to whom the task done properly
pertains and who alone are liable for their torts, the SSS cannot be held liable for damages in this case.
Implied consent:
(1) When the government enters into business contracts
When the government is in the performance of governmental function (jure imperii), even
if it enters into a contract with private persons, it cannot be sued without its consent.
Page 24 of 33
Thus, in United States vs. Ruiz, 136 SCRA 487 (1985), a contract for the repair of wharves and
piers at the naval base in Subic was held to be in line with the governmental function of
the US Government and so the immunity existed.
But when the government enters into commercial contracts and descends to the status of
ordinary persons (jure gestioni), it can be sued like any other person.
In Malong vs. PNR, 138 SCRA 63 (1985), it was held that when the state organized the
Philippine National Railway, it divested itself of its sovereign capacity, and so became
liable for damages that arose from the death of one who fell from an overloaded train.
United States of America vs. Ruiz, GR No. L-35645, May 22, 1985 (136 SCRA 487)
State Immunity from Suits Extends to contracts relating to Sovereign Functions.
FACTS: In 5/72, the US advertised for bid projects involving the repair of wharves and certain works on the
shorelines at its naval base in Subic, Zambales. Eligio de Guzman & Co., Inc. (EG & Co.) submitted proposals in
connection w/ w/c it received 2 telegrams from the US govt asking it to confirm its price proposals and the name
of its bonding co. However, in 6/82, EG & Co. was informed that its proposals had been rejected and the
projects had been awarded to 3rd parties. EG & Co. brought suit in the CFI to compel the US govt to allow it to
perform the work on the projects. It also asked for a writ of prel. inj. to restrain the US govt from entering into
contract w/ 3rd parties for work on the projects. The US govt moved to dismiss the complaint, but its motion
was denied. Hence the petition for review.
HELD: It has been necessary to distinguish bet. sovereign and governmental acts ( jure imperii) and private,
commercial and proprietary acts (jure gestionis.) The result is that State immunity now extends only to acts jure
imperii. However, the resp. Judge held that by entering into a contract for the repair of wharves or shorelines
the State did not act in its governmental capacity.
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. The rule does not apply where the contract
relates to the exercise of its sovereign functions.
In this case the projects are an integral part of the naval base w/c is devoted to the defense of both the US and
the Phils., indisputably a function of the govt of the highest order; they are not utilized for, nor dedicated to,
commercial or business purpose.
Malong vs. PNR, GR No. L-49930, August 7, 1985 (138 SCRA 63)
PNR not Immune from Suit
FACTS: The petitioners sued the Philippine National Railway (PNR) for damages for the death of their son who
fell from an overloaded PNR train on October 30, 1977. However, the trial court dismissed the suit on the ground
that, under its charter as amended by PD 741, the PNR had been made a government instrumentality, and that
as such it is immune from suit.
HELD: The correct rule is that "not all government entities, whether corporate or non corporate, are immune
from suits. Immunity from suit is determined by the character of the objects for w/c the entity is organized."
When the govt enters into a commercial transaction it abandons its sovereign capacity and is to be treated like
any other corp. In this case, the state divested itself of its sovereign capacity when it organized the PNR, w/c is
no different from its predecessor, the Manila Railroad Co.
Department of Agriculture vs. NLRC, GR No. 104269, November 11, 1993 (227 SCRA 693)
Restrictive Doctrine of State immunity from suit
HELD: Not all contracts entered into by the government operate as a waiver of its non-suability; distinction must
still be made between one which is executed in the exercise of its sovereign function and another which is done
in its proprietary capacity.
In United States of America v. Ruiz (136 SCRA 487), where the questioned transaction dealt with the
improvements on the wharves in the naval installation at Subic Bay, we held:
Page 25 of 33
“The traditional rule of immunity exempts a State from being sued in the courts of another State
without its consent or waiver. This rule is a necessary consequence of the principle of
independence and equality of States. However, the rules of International Law are not petrified;
they are constantly developing and evolving. And because the activities of states have
multiplied, it has been necessary to distinguish them - between sovereign and governmental acts
(jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that
State immunity now extends only to acts jure imperii. The restrictive application of State
immunity is now the rule in the United States, the United Kingdom and other states in Western
Europe.
The restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic affairs.
Stated differently, 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. It does not apply where the contracts relate to the exercise of its sovereign functions.
In this case the projects are an integral part of the naval base which is devoted to the defense of
both the United States and the Philippines, indisputably a function of the government of the
highest order; they are not utilized for nor dedicated to commercial or business purposes.”
(2) When it would be inequitable for the state to invoke its immunity, or when it takes
private property for public use or purpose.
In Amigable vs. Cuenca, (43 SCRA 360), Alfonso vs. Pasay and Ministerio vs. CFI, 40 SCRA 464, the SC
allowed suit for the recovery of possession of titled lands previously (decades) taken over
by the government for expansion of roads without just compensation and the proper
expropriation proceedings. In so holding, it said that it would be unjust for the
government to invoke immunity after it has itself violated the rights of the parties-claim-
ant by taking over the possession of the lands.
In Santiago vs. Republic, 87 SCRA 294 (1978), the SC allowed the revocation of a deed of
donation made to the Bureau of Plant Industry for its failure to comply with the condition
that it should install a lightning and water system on the property and build an office
building with parking lot before a certain date. It would be unfair, said the court, for the
government to invoke its immunity after gratuitously receiving property and not fulfilling
its conditions.
The case of Commissioner of Public Highways vs. Burgos, 96 SCRA 831, simply implemented the
ruling in Amigable vs. Cuenca, 43 SCRA 360. In the earlier case, the question raised was the
right of the plaintiff to sue the govt. for recovery of the value of her property which had
been converted into public streets without payment to her of just compensation. Although
it was shown that she had not previously filed her claim with the Auditor General as
normally required, the SC decided in her favor. The SC held that the doctrine of
governmental immunity from suit cannot serve as an instrument for perpetrating an
injustice on a citizen. In this instant case, the SC fixed just compensation based on the
market value of the land at the time of the taking.
Santiago vs. Republic, GR No. L-48214, December 19, 1978 (87 SCRA 284)
Consent to be Sued Presumed where Allowance of Immunity Would be Inequitable
FACTS: Petitioner filed an action in the CFI of Zamboanga City for the revocation of a deed of donation w/c he
and his wife had made to the Bureau of Plant Industry. He claimed that the donee failed to comply w/ the
condition of the donation that the donee should install a lighting and water system on the prop. and build an
office building w/ parking lot thereon not later than 12/7/74. The trial court dismissed the action on the ground
of sovereign immunity.
HELD: Ordinarily, a suit of this nature cannot prosper. It would, however, be manifestly unfair for the govt, as
donee, w/c is alleged to have violated the condition under w/c it received gratuitously certain prop., to invoke its
Page 26 of 33
immunity. Since it would be against equity and justice to allow such a defense in this case, consent to be sued
could be presumed.
Gregorio R. Vigilar, et al. vs. Arnulfo D. Aquino, G.R. No. 180388, January 18, 2011.
HELD: The doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an
injustice to a citizen. It would be the apex of injustice and highly inequitable to defeat respondent’s right to be
duly compensated for actual work performed and services rendered, where both the government and the public
have for years received and accepted benefits from the project and reaped the fruits of respondent’s honest toil
and labor. The rule, in any case, is not absolute for it does not say that the state may not be sued under any
circumstance.
Commissioner of Public Highways vs. Burgos, GR No. L-36706, March 31, 1980 (96 SCRA 831)
FACTS: Private respondent Victoria Amigable was the owner of a parcel of land in Cebu City; sometime in 1924
the Government took this land for road-right-of-way purpose. In 1959, she filed in the CFI of Cebu a complaint
for recovery of ownership and possession plus damages. This complaint was dismissed on the grounds of
estoppel and the statute of limitations and also on the ground of non-suability of the Government. The SC on
appeal reversed the CFI and remanded the case for the purpose of determining the compensation to be paid
Amigable, directing that to determine just compensation for the land, the basis should be the price or value
thereof at the time of the taking. Respondent judge, however did not heed the directive but instead took into
account supervening inflation of the currency and adjusted the value in accordance with the prevailing peso-
dollar exchange rate. His basis was Article 1250 of the Civil Code. The Sol-Gen appealed the decision.
HELD: Art. 1250 applies only to cases where a contract or agreement is involved. It does not apply where the
obligation to pay arises from law, independent of contract. The taking of private property by the Government in
the exercise of its power of eminent domain does not give rise to a contractual obligation. The value of the
property at the time the govt took possession of the land in question, not the increased value resulting from the
passage of time, w/c invariably brings unearned increment to real estate, represents the value to be paid as just
compensation for the prop. taken.
EPG Construction Co. vs. Vigilar, GR No. 131544, March 16, 2001 (354 SCRA 566)
HELD: To our mind, it would be the apex of injustice and highly inequitable for us to defeat petitioners-
contractors’ right to be duly compensated for actual work performed and services rendered, where both the
government and the public have, for years, received and accepted benefits from said housing project and reaped
the fruits of petitioners-contractors’ honest toil and labor.
Incidentally, respondent likewise argues that the State may not be sued in the instant case, invoking the
constitutional doctrine of Non-suability of the State, otherwise known as the Royal Prerogative of Dishonesty.
Respondent’s argument is misplaced inasmuch as the principle of State immunity finds no application in the case
before us.
Under these circumstances, respondent may not validly invoke the Royal Prerogative of Dishonesty and
conveniently hide under the State’s cloak of invincibility against suit, considering that this principle yields to
certain settled exceptions. True enough, the rule, in any case, is not absolute for it does not say that the state
may not be sued under any circumstances.
Thus, in Amigable v. Cuenca, this Court, in effect, shred the protective shroud which shields the state from suit,
reiterating our decree in the landmark case of Ministerio v. CFI of Cebu that “the doctrine of governmental
immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen.” It is just as
important, if not more so, that there be fidelity to legal norms on the part of officialdom if the rule of law were to
be maintained.
Although the Amigable and Ministerio cases generously tackled the issue of the State’s immunity from suit vis a
vis the payment of just compensation for expropriated property, this Court nonetheless finds the doctrine
enunciated in the aforementioned cases applicable to the instant controversy, considering that the ends of justice
would be subverted if we were to uphold, in this particular instance, the State’s immunity from suit.
To be sure, this Court – as the staunch guardian of the citizens’ rights and welfare – cannot sanction an injustice
so patent on its face, and allow itself to be an instrument in the perpetration thereof. Justice and equity sternly
demand that the State’s cloak of invincibility against suit be shred in this particular instance, and that petitioners-
Page 27 of 33
contractors be duly compensated – on the basis of quantum meruit – for construction done on the public works
housing project.
(3) If the Govt. files a complaint, defendant may file a counterclaim against it
In Froilan vs. Oriental Pan Shipping, GR L-6060 (Sept. 30, 1950), the SC held that when the State
itself files a complaint, the defendant is entitled to file a counterclaim against it. This is
based on equitable grounds. The SC ruled that the govt. impliedly allowed itself to be
sued when it filed a complaint in intervention for the purpose of asserting a claim for
affirmative relief against the plaintiff, to wit, recovery of a vessel.
Froilan vs. Oriental Pan Shipping, GR No. L-11897, October 31, 1964 (12 SCRA 276)
FACTS: Froilan purchased from Shipping Commission a vessel for P200,000 paying P50 T downpayment. A CM
was executed to secure the payment of the balance. For various reasons including non-payment of installments,
the Commission took possession of the vessel and considered the contract of sale cancelled. The Commission
chartered and delivered said vessel to Pan Oriental. Froilan appealed from the action of the Commission and he
was restored to all the rights under the original contract. However, Pan Oriental retained the possession of the
vessel. Froilan filed a complaint to recover possession of the vessel. A writ of replevin was issued. The Govt
intervened alleging that Froilan failed to pay the balance to the Commission; that the intervenor was entitled to
the possession of said vessel under the terms of the original contract or in order for it to effect the extrajudicial
foreclosure of the mortgage. Pan Oriental answered the complaint in intervention praying that if RP succeeded in
obtaining the possession of the vessel, to comply w/ its obligation of delivering it to Pan Oriental pursuant to their
contract of bareboat charter w/ option to purchase. Complaint in intervention was dismissed upon Froilan's
payment of his account to the RP. RP filed a motion to dismiss the counterclaim w/c Pan Oriental had filed
against it in view of the court's order dismissing the complaint in intervention. Counterclaim of Pan O. against RP
was dismissed. Hence, this appeal. RP raised, among others, as ground for the dismissal of Pan O's
counterclaim, the State's immunity from suit.
HELD: By filing its complaint in intervention, the govt in effect waived its right of non-suability. Stated
otherwise, by taking the initiative in an action against a private party, the State surrendered its privileged position
and came down to the level of the def. The latter automatically acquires, w/in certain limits, the right to set up
whatever claims and other defenses he might have against the State.
(D) SCOPE OF CONSENT
(1) Under Act No.3083
Sec. 1. Subject to the provisions of this Act, the Government of the Philippines
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 a money judgment is given against the government, the ordinary rule for execution would not apply, for
the consent of the government to be sued is only up to the point of judgment. If it does not pay, it cannot be
compelled to pay by attachment or otherwise.
The procedure is for one to furnish the Office of the President with the decision so it could include the amount in
the budget for the next year as the basis for appropriation (since there can be no disbursement of public funds
except in pursuance of law).
If the judge nonetheless issues a writ of execution against government funds or property, no ordinary civil action
can be filed against the judge, unless there is a showing of malice. But, a reinstatement of the funds to
government accounts and refund by the private party can be ordered. 9
Commissioner of Public Highways vs. San Diego, GR No. L-30098, February 18, 1970 (31 SCRA 616)
FACTS: On 11/20/40, the Govt filed a complaint for eminent domain (ED) in the CFI for the expropriation of land
belonging to N.T. Hashim needed to construct EDSA. On 11/25/40, the Govt took possession of the prop. upon
9
Commissioner of Public Highways vs. San Diego, 31 SCRA 616 (1970), reiterating the case of Alsua v Johnson.
Page 28 of 33
deposit w/ the city treasurer of the sum fixed by the court as the provisional value of all the lots needed to
construct the road. In 1958, the estate of Hashim, through its Judicial Administrator, Tomas Hashim, filed a
money claim w/ the QC Engr's Office, w/c was alleged to be the FMV of the prop. in question. Nothing having
come out of the claim, the estate filed a complaint for the recovery of the FMV against the Bureau of Public
Highways (BPH.) The parties entered into a compromise agreement w/c was approved by the CFI. The estate
filed a motion for the issuance of a writ of execution, w/c the court granted. A notice of garnishment, together
w/ a writ of execution was served on PNB, notifying it that levy was thereby made upon the funds of petitioner
Bureau and the Auditor General on deposit. Resp. Coruna, in his capacity as Chief, Documentation Staff of PNB's
Legal Dept., authorized the issuance of a cashier's check of the bank in the amount of the judgment/ compromise
agreement. Petitioners contend that PNB acted precipitately in having delivered the amount w/o affording
petitioner Bureau a reasonable time to contest the validity of the garnishment. It demands that the bank credit
the petitioner's account w/ the amount garnished.
HELD: Although the govt, as plaintiff in expropriation proceedings, submits itself to the jurisdiction of the Court
and thereby waives its immunity from suit, the judgement that is thus rendered requiring its payment of the
award determined as just compensation for the condemned prop. as a condition precedent to the transfer to the
title thereto in its favor, cannot be realized upon execution. It is incumbent upon the legislature to appropriate
any additional amount, over and above the provisional deposit, that may be necessary to pay the award
determined in the judgment, since the Govt cannot keep the land and dishonor the judgment.
The universal rule that where the State gives its consent to be sued by private parties either by general or special
law, it may limit claimant's claim "only up to the completion of proceedings anterior to the stage of execution"
and that the power of the Courts end when the judgment is rendered , since govt funds and properties may not
be seized under writs of execution or garnishment to satisfy such judgments, is based on obvious considerations
of public policy. Disbursements of public funds must be covered by the corresponding appropriations as required
by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted
by the diversion of public funds from their legitimate and specific objects, as appropriated by law.
(2) Under a charter
When consent to be sued is provided by the charter, the consent does not stop with the
rendition, but goes up to the satisfaction of the judgment.
In PNB v CIR, 81 SCRA 314 (1978), the SC held that since the PHHC had the capacity to be
sued, any judgment against it could be enforced by a writ of execution, and its funds
could even be garnished.
(E) MEASURE OF RECOVERY
When property has been unlawfully taken by the government so that it is now compelled
to make payment, the measure of recovery is the fair market value of the property at the
time of taking (Ministerio v CFI, 40 SCRA 464).
The value of the peso in relation to the dollar at the time of taking cannot be considered.
For Art 1250 of the Civil Code concerning supervening inflation has no application in
eminent domain cases, being applicable only to contractual obligations [Commissioner of
Public Highways v Burgos, 96 SCRA 831 (1980)]. Ultimately, the face value of the peso then is
the amount to be paid now.
(F) SOVEREIGN OR DIPLOMATIC IMMUNITY
Minucher vs. CA, GR No. 142396, February 11, 2003 (397 SCRA 244)
HELD: The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and, by
the time of its ratification on 18 April 1961, its rules of law had long become stable. X x x Traditionally, the
exercise of diplomatic intercourse among states was undertaken by the head of state himself, as being the
preeminent embodiment of the state he represented, and the foreign secretary, the official usually entrusted with
the external affairs of the state. Where a state would wish to have a more prominent diplomatic presence in the
receiving state, it would then send to the latter a diplomatic mission. Conformably with the Vienna Convention,
the functions of the diplomatic mission involve, by and large, the representation of the interests of the sending
state and promoting friendly relations with the receiving state.
Page 29 of 33
The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios
accredited to the heads of state, (b) envoys, ministers or internuncios accredited to the head of states; and (c)
charges d' affairs accredited to the ministers of foreign affairs. Comprising the " staff of the (diplomatic) mission"
are the diplomatic staff, the administrative staff and the technical and service staff. Only the heads of missions,
as well as members of the diplomatic staff, excluding the members of the administrative, technical and service
staff of the mission, are accorded diplomatic rank. Even while the Vienna Convention on Diplomatic Relations
provides for immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding
that the same be restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested
with blanket diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the
heads of missions or members of the diplomatic staff, thus impliedly withholding the same privileges from all
others. It might bear stressing that even consuls, who represent their respective states in concerns of commerce
and navigation and perform certain administrative and notarial duties, such as the issuance of passports and
visas, authentication of documents, and administration of oaths, do not ordinarily enjoy the traditional diplomatic
immunities and privileges accorded diplomats, mainly for the reason that they are not charged with the duty of
representing their states in political matters. Indeed, the main yardstick in ascertaining whether a person is a
diplomat entitled to immunity is the determination of whether or not he performs duties of diplomatic nature.
X x x An attaché belongs to a category of officers in the diplomatic establishment who may be in charge of its
cultural, press, administrative or financial affairs. There could also be a class of attaches belonging to certain
ministries or departments of the government, other than the foreign ministry or department, who are detailed by
their respective ministries or departments with the embassies such as the military, naval, air, commercial,
agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief of mission in his duties and
are administratively under him, but their main function is to observe, analyze and interpret trends and
developments in their respective fields in the host country and submit reports to their own ministries or
departments in the home government. These officials are not generally regarded as members of the diplomatic
mission, nor are they normally designated as having diplomatic rank.
Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the
government. In World Health Organization vs. Aquino (48 SCRA 242), the Court has recognized that, in such
matters, the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and incautious grant of
immunity, designed to gain exemption from the jurisdiction of courts, it should behoove the Philippine
government, specifically its Department of Foreign Affairs, to be most circumspect, that should particularly be no
less than compelling, in its post litem motam issuances. It might be recalled that the privilege is not an immunity
from the observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity
from the exercise of territorial jurisdiction. X x x
But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently established that,
indeed, he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of
suspected drug activities within the country on the dates pertinent to this case. If it should be ascertained that
Arthur Scalzo was acting well within his assigned functions when he committed the acts alleged in the complaint,
the present controversy could then be resolved under the related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary
international law then closely identified with the personal immunity of a foreign sovereign from suit and, with the
emergence of democratic states, made to attach not just to the person of the head of state, or his representative,
but also distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent.
Suing a representative of a state is believed to be, in effect, suing the state itself. The proscription is not
accorded for the benefit of an individual but for the State, in whose service he is, under the maxim — par in
parem, non habet imperium — that all states are sovereign equals and cannot assert jurisdiction over one
another. The implication, in broad terms, is that if the judgment against an official would require the state itself
to perform an affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the
damages decreed against him, the suit must be regarded as being against the state itself, although it has not
been formally impleaded.
In United States of America vs. Guinto (182 SCRA 644) , involving officers of the United States Air Force and
special officers of the Air Force Office of Special Investigators charged with the duty of preventing the
distribution, possession and use of prohibited drugs, this Court has ruled —
"While the doctrine (of state immunity) appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts allegedly
Page 30 of 33
performed by them in the discharge of their duties. . . . . It cannot for a moment be imagined
that they were acting in their private or unofficial capacity when they apprehended and later
testified against the complainant. It follows that for discharging their duties as agents of the
United States, they cannot be directly impleaded for acts imputable to their principal, which has
not given its consent to be sued. . . . As they have acted on behalf of the government, and within
the scope of their authority, it is that government, and not the petitioners personally, [who were]
responsible for their acts."
This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals (191 SCRA 713)
elaborates:
"It is a different matter where the public official is made to account in his capacity as such for
acts contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice
Zaldivar in Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA
368): 'Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of
government officials or officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such acts, for the protection of his
rights, is not a suit against the State within the rule of immunity of the State from suit. In the
same tenor, it has been said that an action at law or suit in equity against a State officer or the
director of a State department on the ground that, while claiming to act for the State, he violates
or invades the personal and property rights of the plaintiff, under an unconstitutional act or
under an assumption of authority which he does not have, is not a suit against the State within
the constitutional provision that the State may not be sued without its consent. The rationale for
this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating
an injustice.
"xxx xxx xxx
"The doctrine of immunity from suit will not apply and may not be invoked where the public
official is being sued in his private and personal capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of the government is removed the moment they are
sued in their individual capacity. This situation usually arises where the public official acts without
authority or in excess of the powers vested in him. It is a well-settled principle of law that a
public official may be liable in his personal private capacity for whatever damage he may have
caused by his act done with malice and in bad faith or beyond the scope of his authority and
jurisdiction."
A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be
established that he is acting within the directives of the sending state. The consent of the host state is an
indispensable requirement of basic courtesy between the two sovereigns . Guinto and Shauf both involve officers
and personnel of the United States, stationed within Philippine territory, under the RP-US Military Bases
Agreement. While evidence is wanting to show any similar agreement between the governments of the
Philippines and of the United States (for the latter to send its agents and to conduct surveillance and related
activities of suspected drug dealers in the Philippines), the consent or imprimatur of the Philippine government to
the activities of the United States Drug Enforcement Agency, however, can be gleaned from the facts heretofore
elsewhere mentioned. The official exchanges of communication between agencies of the government of the two
countries, certifications from officials of both the Philippine Department of Foreign Affairs and the United States
Embassy, as well as the participation of members of the Philippine Narcotics Command in the "buy-bust
operation" conducted at the residence of Minucher at the behest of Scalzo, may be inadequate to support the
"diplomatic status" of the latter but they give enough indication that the Philippine government has given its
imprimatur, if not consent, to the activities within Philippine territory of agent Scalzo of the United States Drug
Enforcement Agency. The job description of Scalzo has tasked him to conduct surveillance on suspected drug
suppliers and, after having ascertained the target, to inform local law enforcers who would then be expected to
make the arrest. In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the
buy-bust operation, and then becoming a principal witness in the criminal case against Minucher, Scalzo hardly
can be said to have acted beyond the scope of his official function or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States Drug
Enforcement Agency allowed by the Philippine government to conduct activities in the country to help contain the
problem on the drug traffic, is entitled to the defense of state immunity from suit.
Liang vs. People, G.R. No. 125865, January 28, 2000
FACTS: Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for
allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before the
Page 31 of 33
Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation docketed as
Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued by the MeTC. After
fixing petitioner’s bail at P2,400.00 per criminal charge, the MeTC released him to the custody of the Security
Officer of ADB. The next day, the MeTC judge received an "office of protocol" from the Department of Foreign
Affairs (DFA) stating that petitioner is covered by immunity from legal process under Section 45 of the Agreement
between the ADB and the Philippine Government regarding the Headquarters of the ADB (hereinafter Agreement)
in the country. Based on the said protocol communication that petitioner is immune from suit, the MeTC judge
without notice to the prosecution dismissed the two criminal cases.
ISSUE: WON the action of the METC judge was proper?
HELD: NO. Courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is
covered by any immunity. The DFA’s determination that a certain person is covered by immunity is only
preliminary which has no binding effect in courts. In receiving ex-parte the DFA’s advice and in motu proprio
dismissing the two criminal cases without notice to the prosecution, the latter’s right to due process was violated.
It should be noted that due process is a right of the accused as much as it is of the prosecution. The needed
inquiry in what capacity petitioner was acting at the time of the alleged utterances requires for its resolution
evidentiary basis that has yet to be presented at the proper time. At any rate, it has been ruled that the mere
invocation of the immunity clause does not ipso facto result in the dropping of the charges.
Slandering a person could not possibly be covered by the immunity agreement because our laws do not allow the
commission of a crime, such as defamation, in the name of official duty. The imputation of theft is ultra vires and
cannot be part of official functions. It is well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his act done with malice or in bad faith or
beyond the scope of his authority or jurisdiction.
Under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is such, enjoys
immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any
professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official
functions. As already mentioned above, the commission of a crime is not part of official duty.
The Holy See vs. Rosario, GR No. 101949, December 1, 1994 (238 SCRA 524)
QUESTION: How to plead Diplomatic Immunity before our courts of justice?
HELD: In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic
immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that
said defendant is entitled to immunity.
In the Philippines, the practice is for the foreign government or the international organization to first secure an
executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office
conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190 SCRA
130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment,
informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. In
World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a
telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign
Affairs to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at
Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the "suggestion"
in a Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court
to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its
memorandum in support of petitioner's claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents
through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus
Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and companion cases ).
In cases where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their
own determination as to the nature of the acts and transactions involved.
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See,
through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government
since 1957. This appears to be the universal practice in international relations.
Page 32 of 33
Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted
principles of International Law. Even without this affirmation, such principles of International Law are deemed
incorporated as part of the law of the land as a condition and consequence of our admission in the society of
nations (United States of America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to
the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of
another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only
with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public International Law
194 [1984]).
This Court has considered the following transactions by a foreign state with private parties as acts jure imperii:
(1) the lease by a foreign government of apartment buildings for use of its military officers ( Syquia v. Lopez, 84
Phil. 312 [1949]); (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station
(United States of America v. Ruiz, supra.); and (3) the change of employment status of base employees ( Sanders
v. Veridiano, 162 SCRA 88 [1988]).
On the other hand, this Court has considered the following transactions by a foreign state with private parties as
acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three restaurants, a cafeteria, a
bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to American
servicemen and the general public (United States of America v. Rodrigo, 182 SCRA 644 [1990]); and (2) the
bidding for the operation of barber shops in Clark Air Base in Angeles City ( United States of America v. Guinto,
182 SCRA 644 [1990]). The operation of the restaurants and other facilities open to the general public is
undoubtedly for profit as a commercial and not a governmental activity. By entering into the employment
contract with the cook in the discharge of its proprietary function, the United States government impliedly
divested itself of its sovereign immunity from suit.
In the absence of legislation defining what activities and transactions shall be considered "commercial" and as
constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test.
Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in
the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade,
the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity,
or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit.
As held in United States of America v. Guinto, (supra):
"There is no question that the United States of America, like any other state, will be deemed to
have impliedly waived its non-suability if it has entered into a contract in its proprietary or private
capacity. It is only when the contract involves its sovereign or governmental capacity that no
such waiver may be implied."
In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business,
surely the said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the
acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property for
the site of its mission or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said
claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for
commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal
Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for
the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on
Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and entered into force in
the Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating to private immovable property situated in the
territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the
Page 33 of 33
mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be
recognized as regards the sovereign itself, which in this case is the Holy See.
The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental character. Petitioner did not sell Lot 5-A for profit or gain. It merely wanted to dispose off the same
because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of the
donation. The fact that squatters have occupied and are still occupying the lot, and that they stubbornly refuse to
leave the premises, has been admitted by private respondent in its complaint.
The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light of the
pleadings, particularly the admission of private respondent. Besides, the privilege of sovereign immunity in this
case was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. As
the department tasked with the conduct of the Philippines' foreign relations ( Administrative Code of 1987, Book
IV, Title I, Sec. 3), the Department of Foreign Affairs has formally intervened in this case and officially certified
that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt
from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy
in this country. The determination of the executive arm of government that a state or instrumentality is entitled
to sovereign or diplomatic immunity is a political question that is conclusive upon the courts (International
Catholic Migration Commission v. Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is recognized and
affirmed by the executive branch, it is the duty of the courts to accept this claim so as not to embarrass the
executive arm of the government in conducting the country's foreign relations (World Health Organization v.
Aquino, 48 SCRA 242 [1972]). As in International Catholic Migration Commission and in World Health
Organization, we abide by the certification of the Department of Foreign Affairs.
Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public
International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can
ask his own government to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against
the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the validity of
its claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the
relations between the Philippine government and the Holy See ( Young, Remedies of Private Claimants Against
Foreign States, Selected Readings on Protection by Law of Private Foreign Investments 905, 919 [1964] ). Once
the Philippine government decides to espouse the claim, the latter ceases to be a private cause.
According to the Permanent Court of International Justice, the forerunner of the International Court of Justice:
"By taking up the case of one of its subjects and by reporting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own rights — its right to
ensure, in the person of its subjects, respect for the rules of international law ( The Mavrommatis
Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).

HO # 2 - General Considerations

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HO # 2 - General Considerations

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HAND OUT No.

2 – NATURE OF THE CONSTITUTION

THE PHILIPPINES AS A STATE

THE ELEMENTS OF A STATE ARE THE FOLLOWING:

1) People refers simply to the inhabitants of the State.

II. COMPONENTS OF THE PHILIPPINE STATE

1. Three meanings of the word "People"

The word "people" is used in at least three senses in the Constitution:

 The right of an individual to be secure in his person is guaranteed by the

B. TERRITORY - The Archipelago Concept

Art. I. The national territory comprises the Philippine archipelago,

1. The Philippine Archipelago

1) All the waters within the limits set forth in the:

 The Constitutional provisions embodying this doctrine are:

1. "archipelago, with all the island and waters embraced therein"

Method of determining the baselines

1. RA No. 3046 (17 June 1961)

 Determine appropriate points of the outermost Islands of the archipelago, then

Uses of the baseline:

b. Used to determine the 200 mile EEZ.

c. Basis for the Archipelagic Doctrine

 An archipelago is a body of water, studded with islands.

 Territorial sea means water outside the baseline extending up to 12 miles.

 Internal water refers to water within the baseline.

2. Other territories over which the Philippines has sovereignty or jurisdiction

PD No. 1596 (11 June 1978)

4. Exclusive Economic Zone

3. Such other rights as are recognized by international law.

1. Explore or exploit any resources;

 In case of overlapping of EEZs, the common boundaries are to be detemined by (i)

UN Convention on the Law of the Sea (30 April 1982.)

1. Government is that institution or aggregate of institutions by which an

 Ministrant functions are those undertaken to advance the general interests of

B. Doctrine of Parens Patriae

 Blacks Law definition:

C. De Jure and De Facto Governments

The three kinds of de facto government are as follows:

The characteristics of this third kind of de facto government are:

2. "GOVERNMENT OF THE PHILIPPINES" defined

NATIONAL GOVERNMENT refers to the entire machinery of the central government, as

Legal Political Internal External

Tanada v. Angara, GR No. 118295, May 2, 1997 (272 SCRA 18)

Is sovereignty really absolute?

1. DOMINIUM and IMPERIUM

Distinguish sovereignty from dominion.

2. TERRITORIAL, PERSONAL, and EXTRATERRITORIAL JURISDICTION

Jurisdiction is the manifestation of sovereignty.

 The territorial jurisdiction of a state is sovereignty operating or applied within its

"Art. 2. Except as provided in the treaties and laws of preferential

DOCTRINE OF STATE IMMUNITY FROM SUIT

Basis of the Doctrine of State Immunity

legal right against habet imperium" busy defending

QUESTION: Is the doctrine of State Immunity absolute?

(B) WHEN A SUIT IS AGAINST THE STATE AND WHEN IT IS NOT.

Shauf vs. CA, 191 SCRA 713 (1990) GR No. 90314

3. Some instances when a suit is against the State:

They are therefore liable for damages.

(C) CONSENT TO BE SUED

How consent is given

Suability of the State. The Need for a Statute Giving Consent

(1) Money claims arising from contracts, express or implied.

Act No. 3083.

An Act Defining the Conditions under which the

Sec. 9. This Act shall take effect on its approval.