Topic: Immunity from Suit

Principle of Non-Suability

Article XVI Section 3, 1987 Philippine Constitution

Section 3. The State may not be sued without its consent.

Department of Health, et al. V. Phil. Pharmawealth G.R. No. 169304 March 13, 2007

The rule that a state may not be sued without its consent, now embodied in Section 3, Article
XVI of the 1987 Constitution, is one of the generally accepted principles of international law, which we
have now adopted as part of the law of the land.

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
performed by them in the discharge of their duties.[26] The suit is regarded as one against the state
where satisfaction of the judgment against the officials will require the state itself to perform a
positive act, such as the appropriation of the amount necessary to pay the damages awarded against
them.

The rule, however, is not so all-encompassing as to be applicable under all circumstances.

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. As was clearly set forth by
Justice Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et
al., "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. (Emphasis and underscoring
supplied

Hence, the rule does not apply where the public official is charged in his official capacity for
acts that are unauthorized or unlawful and injurious to the rights of others. 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

Department of Health v. Phil Pharmawealth G.R. No 182358 February 20, 2013

As a general rule, a state may not be sued. However, if it consents, either expressly or
impliedly, then it may be the subject of a suit. There is express consent when a law, either special or
general, so provides. On the other hand, there is implied consent when the state "enters into a
contract or it itself commences litigation." However, it must be clarified that when a state enters into
a contract, it does not automatically mean that it has waived its non-suability. The State "will be
deemed to have impliedly waived its non-suability [only] if it has entered into a contract in its
proprietary or private capacity. [However,] when the contract involves its sovereign or governmental
capacity[,] x x x no such waiver may be implied." "Statutory provisions waiving [s]tate immunity are
construed in strictissimi juris. For, waiver of immunity is in derogation of sovereignty."

Philippine Textile v. Court of Appeals G.R. Nos. 223319 & 247736 October 9, 2019.
 x x x “there is implied consent on the part of the State to be subjected to suit when the State
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. However, 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 functions and another
which is done in its proprietary capacity.

In the instant case, not only did PTRI descend to the level of a contracting party by entering
into the subject Contract, under the subject Contract itself, which contemplated a situation wherein
legal action may arise from the execution of the agreement and incorporating provisions on the
procedures to be undertaken in settling legal disputes, PTRI also manifested unequivocally its consent
to be subjected to suit with respect to disputes arising from the subject Contract. Further, the subject
Contract was clearly not executed in the exercise of PTRI's governmental function of aiding the textile
industry. The subject Contract dealt solely with the rehabilitation works of the electrical facilities of
PTRI's buildings.

In any case, the Court has held that the State's immunity from suit may be shelved when the
Court is convinced that its stubborn observance will lead to the subversion of the ends of justice.[29]
Likewise, the doctrine of governmental immunity from suit cannot serve as an instrument for
perpetrating an injustice on a citizen.”

Republic v. Spouses Nocom, G.R. No. 233988, November 15, 2021

Department of Transportation v. Spouses Abecina, G.R. No. 206484, June 29, 2016
The doctrine of state immunity cannot serve as an instrument for perpetrating an injustice
to a citizen. Even an unincorporated agency such as the DOTC may be sued, even when performing
sovereign functions, for taking of private property without filing an expropriation case. The
Department’s entry into and taking of possession of the respondents’ property amounted to an
implied waiver of its governmental immunity from suit.

Taisei Shimizu Joint Venture v. COA and DOTr, G.R. No. 238671 June 2, 2020

Actions against the State are not excluded from the jurisdiction of courts. For although, as a
rule, the State is immune from suit, it is settled that "a suit against the State is allowed when the State
gives its consent, either expressly or impliedly. Express consent is given through a statute, while
implied consent is given when the State enters into a contract or commences litigation."

We recently held that although the COA exercises broad powers pertaining to audit matters,
it is devoid of authority to determine the validity of contracts, lest it encroaches upon such judicial
function.40 We further decreed that the COA's jurisdiction is limited to audit matters only. Hence, we
set aside a ruling of the COA disapproving a deed of exchange between the City Government of Cebu
and a private corporation. The case clearly demonstrated why it was not unusual for the government
and its instrumentalities to be sued in the regular courts even when the action involved government
funds or property since such an action may entail resolution of issues falling within the jurisdiction of
the courts.

Other tribunals/adjudicative bodies, too, may have concurrent jurisdiction with the COA over
money claims against the government or in the audit of the funds of government agencies and
instrumentalities.
 In Development Bank of the Philippines v. COA, we held that under existing laws, the COA
does not have the sole and exclusive power to examine and audit government banks. The Central
Bank has concurrent jurisdiction to examine and audit, or cause the examination and audit, of
government banks. Neither was there any statutory obstacle for a government bank to hire a private
external auditor to examine its accounts without prejudice to its being concurrently subject to a COA
audit. The Court took into account, among others, the Constitutional Commission's deliberations
showing that the framers of the Constitution downvoted a proposal to add the word "exclusive" to
describe the powers of the COA under Article IX-D, Section 2(1) of the 1987 Constitution. It also
cannot be said, therefore, that the COA's "power, authority, and duty to x x x settle all accounts
pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or
held in trust by, or pertaining to, the Government" is exclusive.