CONSTITUTIONAL LAW 1

CHAPTER 4 “Doctrine on State Immunity”

The last time we talk about the elements of the state and government and sovereignty.

The Act of State – usually performed by the head of the state.

- When the state acts, it is always immune from suit or responsibility, precisely
because of this exercise of the sovereign power.

The states immunity from suit

- Our constitutional provision Art 16. Sec 3.
o The state cannot be sued without its consent
What is the purpose?
We have learned that the very reason why the state cannot be sued is basically grounded
on the fact that there can be no legal rights against the authority that makes the law on which the
rights (we are exercising) depend on it.
How can you go against the one who is actually the authority that makes the law or which
the rights we are exercising depends on it.
That’s the basis for the Principle

However, this is not really a new concept. This concept is already popular in older times. There
is a saying that, “This immunity from suit is also known as the Royal Prerogative against
Dishonesty”
Why do we apply this Prerogative of Dishonesty”
- Because in the old time, the king cannot err or what you call infallibility of the
king or the monarch. In fact, this also adopted by the catholic in infallibility of
the Pope.
- That Prerogative is given to monarch, because, how can you contest a person
who is your sovereign. That’s the prerogative of the monarch.
This Principle of Old now been adopted in the present and we have practical reason in
adoption of this Principle which later on becomes the “State Immunity from Suit”

Underlying Principle
“If the Government would always be sued, if its officers and employees will always be
sued. Then, there will be no time for the government and officials to perform their duties and
responsibilities. Their time will always be allotted facing cases in courts. Because there are
always propensity of filing cases, there are people who has the propensity of always going to
court in the event that they are not satisfied on the government, people or of our officials.
If this Principle is not followed, then the President will always be facing charges and
always put his/her time defending in courts, just like the other officials and employees of the
government. This principle has also its practical reason, and the reason that I informed to you is
one of the reason.
 So, the state cannot be sued so it follows that the state and the president cannot be sued.
That also includes in general, agencies and instrumentalities of the state (for later discussion).

Other states also that are within the Philippines cannot also be sued. So that is under the
principle of Territoriality.
The Principle that the state sovereignty extends beyond its territorial jurisdiction
especially involving their embassies and under their delegates, like ambassadors and consuls.
While in the Philippines, they also enjoys their immunity. However, before they enjoy the
immunity it is also important that they must be considered as a State or an extension of the State.

Who gives the recognition?

Of Course the President uses recognition. And for the purpose of international relations, aside
from the President, it is the secretary of Department of Foreign Affairs that provides recognition
of States, and other international organization that come to the Philippines that wants status of
immunity.

There is one case decided by the Supreme Court where it was the office of the Solicitor
General that extended the recognition of a status of the State or the Representative of the State.
With the end purpose of providing immunity on the part of organization from suit in the
Philippines:
But the SC held, “It is not the office of the Solicitor General, but the Department of Foreign
Affairs that should provide that recognition of Non-Suability.
The reason for that is that in internal relation is usually the secretary of Department of Foreign
Affairs that heads international relationship.

This state immunity from suit extends to other states that are in the Philippines under the
International Law Principle “Par in parem non habet imperium” so that means, you cannot be
over and above of people of the same rank “Par in parem” “equality among equals. “All
countries should be treated among equals.

It is important that any foreign dignitaries, consuls or employees that are here in the Philippines
for the purpose of representing their state, it is important that they must do so in the discharge of
their official functions. If they don’t do their functions in their official capacity, then that
extension of immunity cannot be given to them. (Ex. Ambassador, consul would come) it must in
the performance of their official functions. Because if they are doing it in their official function
then there is probability that they can be sued because that’s already personal aspect on their
part, but not as a governmental aspects.

In so far as other organization, they are also, like the UN and international organization, they are
also given immunities including the Vatican See, is also given a recognition because the Vatican
is also a state.

Then there is also other organization (National Red Cross) be given some recognition, but it is
always the Department of Foreign Affairs that provides the recognition in case there is a conflict
whether or not such international organization is covered by the immunity.
How will you know if a suit is against the state?
Ex. Juan De Cruz vs Republic of the Philippines
- That is not a problem, the court can immediately dismiss the case because that
is really a suit against the state, clearly, very clearly.
- That is violation of Section 3 of Article 16.

The Problem comes in now with the subject matter of immunity from suit when the suit is not
directed against the Republic of the Philippines, but directed against the agencies or public
officers of the Republic of the Philippines.
That’s where the question rise.
- So its not really when it is directed against the Republic, but when it is
directed against the agencies of the states and it public officers, that’s where
the problem lies.
Main Topic
How will we if that is really a suit against the state, because its not directed against
Republic of the Philippines.

Test:
- If the suit is against the Department of Transportation, or DSWD, DPWH, or
the person involves or the Chief of Police of the PNP.
o It is a suit against the State if after the Trial, if it will require an
action on the part of the government, then that will be considered
a suit against the state.
- If the ultimate goal or consequences of filing the case would result in the
state doing an affirmative act. Ex. Allocating fund in order to satisfy the
judgment of the court then that will be considered as suit against the state.
- If you file against public officers, assuming that the case that the complainant
won the case, so how be the complainant be satisfied with the judgment. If
the judgment would require the state to pay the complainant, then that
would be considered as suit against the state because ultimately it’s the
state that would be paying. But if, as of the result of the suit, it will not be
the state but the defendant who would be the one pay, then that suit is a
personal case against the defendant or official concern. Then that is not a
suit against the State.
- It will always be determining if the state will ultimately pay, or if the state will
perform an action in order to satisfy the judgment of the court. So that’s how
we are going to test it, but if it will not be the state that will be required satisfy
or to perform an affirmative action, then that will not be a suit against the
state.
Every year, there is always a budget, a proceeding with respect to the preparation of our general
appropriations law, or the budget for the 2022. So every expenses must always be approved by
the congress and by the Philippines.
- There can be no money released outside from the national treasurer, unless
there is appropriation law authorizing the release.
- If there is no law authorizing the release of that fund, you cannot release any
fund in the government

If you file a case against the state, and there will be judgment, that cannot be satisfied by
the state, because there is no appropriation for the case that you filed. So that will now
require the state to prepare budget, affirmative act of on the part of the State, to prepare, to
allocate budget for you. Therefore, that is really a suit against the state, and that is not allowed.
So that is the reason why it is prohibited for a court to entertain any suit against the suit, because
there is no budget for that, because every item in the budget is dedicated to a specific purpose.

SUBJECT MATTER

First, let us check on Whether there is a suit against the state involving governmental agencies.
How can we know if it is a suit against a state when one files a case against a governmental
agencies (DSWD, PNP, DPWH,) and other agencies.
- Our answer always depends whether this particular agency is an
o Incorporated
o Unincorporated
Incorporated Agencies
When we say incorporated agencies, these are agencies that have Charters, which
provides that they can sue or can be sued. They are governmental agencies that were created
pursuant to a law. Kaya tinatawag na incorporated dahil they have their own Charter.
So, we could check if that particular agencies enjoys immunity from the law that creates
them. We will on the charter on the law, if the law says “that they can sue or be sued” even if it’s
a government agency, it has consented to be sued. But that’s not really the problem here .

Agencies that are incorporated

- NPC – National Power Corporation
- NTC – National Transmission Corporation
- NIA – National Irrigations Administration
“Has their own Charter and Laws”

Most of these are government own and controlled corporations, mostly performing Proprietary
functions. Because of their function, they partake their immunity from suit or their immunity
from suit is not really strict.
So you look into the law created them, and if the law says “it can sue and be sued” then you can
sue.
Unincorporated Agencies
These agencies do have their own charters but are really part and performing generally
governmental functions.
In order for us to know, if it is unincorporated agencies and exempted from suit, you will
always know they primarily performs governmental functions. But, there is a possibility that
unincorporated agencies may also perform propriety functions.
Ex. Bureau of Customs
- Aside from the fact that the principal function of Bureau of Customs is to levy
and imposed duties and taxes for imported goods.
- In the process, it also earns incomes, there are also proprietary like in other
services performed by the bureau.
- So, that can also be an issue.
In case of Bureau of Printing Office
- It performs governmental functions as the national printing office of the
government, but it also allows some printing aside from the government. So in
the process it also earns income.
We are now wondering, how are we going to determine , here there is no clear provision that it
could be sued or it could sue but performs both governmental as well as proprietary functions.
In several cases decided by the Supreme Court for unincorporated agencies, to determine if it is
suable or not, you check whether the complained act is in the Primary Function.” Is it a
primary function or just an incident of its primary function.
- If the act being sued is purely governmental function, then the question is, it
can always set the defense of non suability.
- But if the primary function is proprietary in nature, then it can be sued.
o But if the proprietary function is only an incident if his governmental
function, then, that agency can still invoke the principle of non-
suability.
 In governmental, always check if it has a charter.
 If the charter says it could be sued, you can sue
 If the agency does not have a charter
 Determine first what is the primary function of the
agency
 If the act complained involves a proprietary action
on the part of that agency, make sure that it is not
an incident of its governmental function.(works
mandated by the office)
 Otherwise, if its only a mere incident, the government
agency involved could still invoked the Principle of
Non-Suability.
Public Officers
Can a public officer set the defense of non-suability?
Yes, for as long as it is in the performance of his official functions, he can always set the
defense of non-suability.
However, if the public officer concern is sued in his persona capacity, not in relation to
his function (committed a crimes). Those are personal in nature and the public officer cannot use
his official standing as a defense on this kinds of crime.
 But, if it is in performance of his official function, like for example, disapproval of an
application by a citizen because it is now allowed in their own rules, that is in the performance in
his official capacity.
“Exemption”
- Even if it is related to performance of his capacity, but there is an allegation
of grave abuse of his authority or it was done in bad faith, or it in excess of
jurisdiction in doing that. Then these are not included in the defense of non
suability.
“Exemption”
- Something that, like a case of mandamus which requires a performance of a
particular act by a public officers, that is not. Because that is something that
requires the performance of his functions or to compel a public officer to
perform a task. That’s an exemption to the rule, or when there is already
appropriation for that particular purpose and yet the public officer will not
release the fund. So that’s an exemption to the rule. You can sue, for act or
omission that is grave abuse of discretion.

BUT AS A RULE!!!!!!!!!
The public officer concern, can always set a defense in his office that he is just
performing his duty as a public officer.

So we have already provided you with the instances where a suit is filed against the state. Since
you can’t directly file to the Republic of the Philippines, you file it against the agency or the
public officers.

TAKE NOTE

Art. 16 section 3, provides for an exemption to this non-suability.

In fact there is no declaration in the constitution that says “That State Cannot be Sued
(smile) right, there is no such declaration.
- Because this is inherent in the state, once there is already a state, comes the
principle of non-suability.
- There is no need for a declaration from the constitution to say “that the state Is
immune from suit” there is no need for that
- What is only needed is the instance when the state could be sued
o Art 16 Sec 3 ‘that the state may not be sued without its consent”
Rule that the State Could be Sued once it consent to be sued

This is possible in two ways

- Express Consent on the part of the State
- Implied Consent

1. Expressed Provision of the Law (Expressed Consent)

a. General law
b. Special law

Where that law expressly provides that any individual can already file a case against the
state

Genera Law
- Ex. – Commonwealth act that allows any claims against the government, for
as long as you have already filed a case before the Commission on Audit.
- Once the COA finds that you have a valid claim against the government, then
COA will now allow you to file a claim against that particular government
agency, and because of that, the State had effectively consented to be sued.
o The commonwealth act which is a general law
o You cannot go to court immediately, COA first for the consent to
be sued
Special Law
- Special in character
- Laws which provides consent on the part of the state on specific instances,
like claim for damages against local government units or agencies
- If you can find a special law which allows the government to be sued, then use
that particular law
o But there is already the Commonwealth Act
o Merrit Case

2. Implied Consent (not by virtue of the law)

When is there an implied consent
- When a government enters into a contract, you have to determine if the
contract is Jurie Imperii (Governmental)
- Jure Gestiones (Proprietary) – you can file against that
-
- The implied may be made when the state commences litigation (when the
state file a case). So when the state files a case to any individuals, it is now
vulnerable to a counter claim.
- When the state files a case, that is an implied consent on the part of the state to
be counter sued, that is already form of a waiver
- The state cannot say that “I can only file a case but you cannot” its unfair
However, if the filing of the case by the court is only to intervene in a case pending, and would
eventually make the state liable, then that is not considered as an implied, that is not considered a
waiver.
 Exemption to the rule when the state file a suit it also impliedly consents to be sued, is
when the state merely intervenes in a case for the purpose of asserting its non suability of the
suit.

Ex. When the state enters into a business contract

When the state enters a memorandum of agreement, lease, usufructury, sale, joint
ventures with a private corporation for the purpose of exploration of Gas or expansion of
highways.
This is an example of state entering into a business contract. When the state enters into a
business contract, it lowers down its personality just like and individual, (Bumababa ang state,
pumapantay na sa individuals) therefore it exposes itself to suit and it cannot anymore uses a
defense later on if there is a violation of the contract and say “even if I violated the contract, I
cant be sued because I am the state” NO, because the fact that you entered into a contract is
already a waiver in your part of your non-suability.

Even entering into a contract, there is also an exemption to the rule.

Center is the rule that when the state goes into a business contract it goes down into the level of
individual. However, there is an exemption to that rule, but if the contract that was entered into
by the state is governmental then that is exemption to the rule. However if the contract entered
into is proprietary in nature, that is something Suable.

There is one case of a repair of an elevator in an embassy, there was a contractor for the
repairs. A breach happened, and there was a claim against the embassy who was renting the
building. The SC held, the embassy could use the defense of non-suability because the elevator is
part of the premises and also because it was a governmental function. And not for the purpose of
proprietary function.
However, if the state would come up with a hotel, leisure part, (barbershop, groceries etc)
and the contractor who was hired to build the park found out that there was unpaid works, so
filed against the government under the contract of the construction of the leisure park.
- Here, the state cannot set the defense of non-suability because the contract
that was entered into by the contractor and the state is proprietary in nature.
- Any breach on the proprietary aspect of the project could be considered
as a exemption to rule of non-suability, because the contract not
governmental but purely propriety in character. That the exemption to
the exemption.

So, we have already give you the instances when the state would now be sued because there is an
express law that allows you to sue and there is has impliedly waived its consent to be sued.
Because, the state has impliedly waived its consent to be sued when he entered into a contract
which is proprietary in nature.

Assuming that you were allowed to sue in court because there was consent given by the state
under the exemption. What is now the scope of the waiver given by the state?
We have this principle of Suability is not Outright Liability
- While the court consented to be sued, the state has not consented to be liable.
The states consent is limited for you to file case in the court. It does not follow
that once you have already file the case in court, you can also garnished their
money.
- Suability is not outright liability
- There must be another consent to be liable
- The consent to sued is entirely separate and distinct from consent to be liable.
Even if you file a case against the governmental agencies or against public officer concern, the
consent given is up to the judgment portion. So will have a paper judgment muna, you cannot go
to the bank and get the money.
Ex. In case where you are asking for damages because of the injuries sustained, and it was done
not in the performance of the officer.
You are allowed to do that because of the special law granted to you. It doesn’t mean that you
can already be paid. You cannot go to the Department of Public Awards, and garnish the money
that it has in the bank. Why? Because the money which is own by the government agencies, is
considered a public fund.

In the case of UP vs Dizon,

- Even if it says, that the university could be sued or be sued. Because under its
charter it could be sued, however you cannot just get the money of UP in the
bank because the money is a form of public fund
Note: No money can be removed from the treasurer unless there is a special appropriation
on that particular purpose. So that’s the reason why there has to be a consent again, and
this time, the consent maybe given by the Government thru a law to be liable.
- For example if you have already won a case, how are you going to ensure that
you will be paid from the money judgment.
o Go to the Commission on Audit, and present the final judgment of the
court so that COA will determine from the records if there was really a
already a final executory judgment. And when COA finds that was
already final and exeutory judgment then that will now recommend
that an appropriation for this particular fund be made by the
government. So that the judgment creditor may be able to collect
money.
- As ive told you earlier, before that year, everything that we spend for this year
has already special allotment.
- If you are going to take money from this special allotment, that would be
violation
- You also be removing fund that has already provided for a specific purpose.
- So cannot do that, you cannot garnish, otherwise, the garnishment will result
in disturbing the orderly expenditure of the government.
o The money is allotted for public welfare would be garnished and be
given to individual or group of people to be given. Imagine the result.
IT will deprive the people who was intended to be provided with that
budget
 - That’s why you first go to COA so that the COA will recommend for the
appropriation for the particular money judgment. And that will now be
considered as a consent and also to be liable. The consent would now only
result in being suable but also being liabe.
- It its not COA, or if from the LGU, Provinces, Municipalities. If there is no
particular budget for that money claim. Then you can lobby that the
municipality concern will pass a resolution providing a special budget for the
payment. So they could pay a final judgment made by the court
-
If the LGU will not appropriate funds for their purpose because they are against you. This is
now the time you file a case for mandamus to compel LGU concern to issue an ordinance.
(Not to compel the LGU for you to pay, but the LGU to issue and ordinance, an
appropriate particular fund for that particular purpose.
o Because you cannot mandate the congress and legislative bodies to do
an act which is decretionary on their part. Because that would
transgress their very principal of Political Question. You cannot
compel a political question like to appropriate money for you. That is a
political matter
o However, you can compel them to exercise their discretion. So you
compel LGU thru a mandamus to exercise this discretion and come up
with an appropriate ordinance for the payment of the money judgment.
That’s the only time that your claim for damages may be paid. But if
there is no such thing, then your judgment will only be on the paper.
o You should not only be prepared to file a case against the state, you
must also be prepared how you are going to enforce any money
judgment awarded to you by the court by virtue of “Waiver Immunity”
 That is the principle of “Suability is not Outright Liability”
- Of course, it is also for the reason that money of the government partakes of a
public fund and everything that has already been provided for in the budget
and appropriated for specific purpose. And if you are going to garnish that
money, that will deprive the intent beneficiary of that particular budget.
o There is a procedure for the money claim would be realized, following
the prescribe rules of the COA as well as jurisprudencial rules set by
the decision of the Supreme Court.

That would be all about the Principle of Non-Suability of the State

The basic concept and why it could not be sued

The instances when it could and could not be sued.
The reason of being sued
- Express Waiver
- Implied Waiver
o While there is a waiver doesn’t mean that the government will pay
you, you must also secure another consent, this time for the
government to consent to be liable.
o And that is to file a claim before the COA under Commonwealth Act
143
o Or to file a case of mandamus against local government, that’s for
them to exercise the discretion to appropriate fund for that particular
purpose.