Chapter 4: THE DOCTRINE OF STATE IMMUNITY
"The State may not be sued without its consent."
Basis:
The State may not be sued indiscriminately, because such suits will...
Impair the dignity of the State,
Challenge the supposed infallibility of the State, and
Consume time and resources that will cause inconvenience to the State and prejudice to the
public welfare.
The principle of the sovereign equality of States, which states that...
One State cannot assert jurisdiction over another in violation of the maxim "par in parem non
habet imperium," which means that "equals have no sovereignty over each other."
The restrictive application of the Doctrine of State Immunity, which states that...
A State cannot be sued if it is engaged in purely sovereign and/or governmental contracts (jure
imperri), but when a State is engaged in purely commercial, private and/or proprietary contracts
(jure gestionis), it may be said that the State have descended to the level of an individual and
can thus be deemed to have tacitly given its consent to be sued. However...
Not all acts even purely jure imperii may exempt a State from suit (e.g. as in the case of its
exercise of its power of eminent domain, when done without payment of just compensation,
the State is suable).
The two (2) conflicting concepts of sovereign immunity, which are...
The classical or absolute theory, where a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign, and
The restrictive theory, where the immunity of the sovereign is recognized only with regard to
public acts (jure imperri) of a State, but not with regard to private acts (jure gestionis).
Application:
The usual practice is not to sue the State, so as to avoid its involvement, but the officer of the
government who is supposed to discharge the responsibility or grant the redress demanded.
However:
Even when an officer of the government, in his official capacity, is sued, but as long as the State
has not waived its immunity, the suit against the officer of the government, bearing the State
immunity, will be dismissed;
It is to be noted that it is the officers who act on behalf of the government, and within the scope
of their authority, it is the government, and not the officers personally, that is responsible for
their acts. Thus, making a suit against the officers a suit against the government without its
consent, instead; and
When an officer of the government, in his official capacity, is sued, but as long as the State has
discharged its obligation, the suit against the officer of the government, even with or without
the waiver of State immunity, will be his to address and satisfy alone.
Waiver of Immunity:
The State may, if it so desires, divest itself of its sovereign immunity and thereby voluntarily open
itself to suit, which means that the State may be sued if it gives its consent. It is to be noted that
State immunity is sometimes called "the royal prerogative of dishonesty."
Forms of Consent:
The two (2) forms of consent of the State to be sued, which are...
The express consent, which manifests either through a general law (e.g. Act No. 3083) or a
special law, and
The implied consent, which is given when the State itself commences litigation or when it enters
into a contract. However:
Even though the State gives is consent to be sued, it does not thereby also consent to the
execution of the judgment against it, for such execution will require another waiver, lacking
which the decision cannot be enforced against the State; and
It is to be noted that under C.A. No. 327 as amended by P.D. No. 1445, a claim against the
government must first be filed with the Commission on Audit.
Suits Against Government Agencies:
The two (2) types of government agency, which are...
The incorporated agency, which has a charter of its own that invests it with a separate juridical
personality (e.g. the Social Security System (SSS), the University of the Philippines (UP), the City
of Manila, etc.), in which the test of its suability is found in its charter if it says so (that it can
both sue and be sued), regardless of the functions it is performing (whether proprietary (jure
gestionis) or governmental (jure imperri)), and
The unincorporated agency, which has no charter (e.g. the Department of Justice (DOJ), the
Bureau of Mines, the Government Printing Office, etc.), and means that any suit filed against it is
necessarily an action against the Philippine Government of which it is part, in which it is suable if
it is engaged in purely proprietary contracts (jure gestionis), but not suable if engaged in purely
governmental contracts (jure imperri).
Exemption from Legal Requirements:
When the State litigates, either directly or through its authorized officers, it is not required to put
up a bond for damages, or an appeal bond, since it can be assumed that it is always solvent.
Suability vs. Liability:
The mere fact that the State is suable does not mean that it is liable or the waiver of immunity by
the State does not mean concession of its liability, because...
Suability is the result of the express or implied consent of the State to be sued, while
Liability is determined after hearing on the bass of the relevant laws and the established facts.
And...
It is to be noted that the State, in many cases, may be suable but not liable.
