Political Law; Constitutional Law; General Considerations; State Immunity

The basis of state immunity, under Philippine law, is the constitution. The constitution states that, “The
State may not be sued without its consent.” [Sec. 3, Art. XVI, 1987 Constitution]

As a consequence of independence, territorial supremacy and equality, a state enjoys immunity from the
exercise of jurisdiction (legislative, executive or judicial) by another state, unless it has given consent,
waived its immunity, or voluntarily submitted to the jurisdiction of the court concerned. Neither may its
public property be attached or taxed, nor its public vessels be boarded, arrested or sued. This is based
on the principle of par in parem non habet imperium. [Nachura, Outline Reviewer in Political Law
(2009)]

It is a suit against the State when the Republic is sued by name, the suit is against an unincorporated
government agency, or when the suit is on its face against a government officer but the case is such that
ultimate liability will belong not to the officer but to the government. [Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer (2011)]

This immunity, however, is recognized only with respect to sovereign or public acts of the state, and
cannot be invoked with respect to private or proprietary acts. The Supreme Court has distinguished the
acts of the government as juri imperii (between sovereign and governmental acts) and jure gestionis
(private, commercial and proprietary acts), the result is that State immunity now extends only to acts jure
imperii. [U.S. v. Ruiz, G.R. No. L-35645, May 22, 1985] The immunity also extends to diplomatic
personnel to the United Nations and specialized agencies and to international organizations. [Lasco v.
UN Revolving Fund for Natural Resources Exploration, G.R. Nos. 109095-109107, February 23,
1995]

The state is deemed to have waived its immunity when it gives consent at the time the proceeding is
instituted; when it takes steps relating to the merits of the case before invoking immunity; when by treaty
or contract, it had previously given consent; or when, by law or regulation in force at the time the
complaint arose, it has indicated that it will consent to the institution of the proceedings. [Nachura,
Outline Reviewer in Political Law (2009)]

Consent may either be express or implied. Express consent is when there is a law expressly granting
authority to sue the State or any of its agencies. There is implied consent when the State enters into a
private contract [Syquia v. Almeda-Lopez, G.R. No. L-1648, August 17, 1949], when the State enters
into an operation that is essentially a business operation, unless the business operation is merely
incidental to the performance of a governmental function [Mobil Philippines v. Customs Arrastre
Service, G.R. No. L-23139, December 17, 1966], and when the state sues a private party, unless the
suit is entered into only to resist a claim [Lim v. Brownell, G.R. No. L-8587, March 24, 1960] Immunity
from suit may be waived by implied consent to be sued as when the state enters into a contract that is
proprietary in character. [Traders Royal Bank v. Intermediate Appellate Court, G.R. No. 68514,
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December 17, 1990]

The general rule is that public officials can be held personally accountable for acts performed in
connection with official duties where they have acted ultra vires or where there is a showing of bad faith.
High position in government does not confer a license to persecute or recklessly injure another. [Chavez
v. Sandiganbayan, G.R. No. 91391, January 24, 1991] However, government officials enjoy the
presumption of good faith and of regularity of official actions. [Farolan v. Solmac Marketing, G.R. No.
83589, March 13, 1991] A suit against an officer is not a suit against the when the owner of a motor
vehicle, seized by officers of the Department of Environment and Natural Resources for transporting
illegally cut timber, sued them to recover the motor vehicle. [Calub vs. Court of Appeals, G.R. No.
115634, April 27, 2000] In contrast, a suit against an official is a suit against the state when it is a suit for
violation of constitutional rights. [Aberca v. Ver, G.R. No. L-69866, April 15, 1988]

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