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FUNDAMENTALS OF POLITICAL LAW REVIEW CONSTITUTIONAL LAW

CHAPTER 1: STATE IN GENERAL HANDOUT NO. 02 (STATE


IMMUNITY)

VI. SOVEREIGN IMMUNITY OR NON-SUABILITY OF THE STATE

DEFINITION OF TERMS

1. Sovereign/State Immunity is the freedom of the State before


its own courts from legal responsibility for its own actions. It
is the privilege of the State to be free from the hazards of
court litigation while performing its governmental functions.

2. Special Agent is a public official who is specially


commissioned to do a particular task which must be foreign to
his usual governmental functions, or a private person who is
commissioned by the GOVERNMENT to do or perform special
governmental task.

BASES OF THE PRINCIPLE OF SOVEREIGN IMMUNITY

1. Constitutional: The STATE may not be sued without its consent.


(Section 3, Article XVI, 1987 Philippine Constitution).

2. Jurisprudence:

a. POSITIVIST THEORY: There can be no legal right as against the


authority that makes the laws on which the right defends.
Immunity from suit is inherent in all sovereign STATES.

b. SOCIOLOGICAL THEORY: PUBLIC SERVICE would be hindered and


PUBLIC SAFETY would be endangered, if the STATE could be
subjected to a suit at the instance of every citizen.

TEST TO DETERMINE IF SUIT IS AGAINST THE STATE

1. When the REPUBLIC is sued by name.

2. When the suit is against an unincorporated government agency.

3. 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

4. When the suit produces adverse consequences to the public


treasury in terms of the disbursement of public funds and loss of
government property.

MODE OF CONSENT TO BE SUED

1. EXPRESS CONSENT: In order to be effective, consent to be sued


must come from the STATE acting through a DULY ENACTED STATUTE.
WAIVER OF STATE IMMUNITY can only be made through the positive
act of the Legislative Body:

a. BY MEANS OF A GENERAL LAW:

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FUNDAMENTALS OF POLITICAL LAW REVIEW CONSTITUTIONAL LAW
CHAPTER 1: STATE IN GENERAL HANDOUT NO. 02 (STATE
IMMUNITY)

1) CA No. 327 as amended by P.D. NO. 1445: defines the cases


where and prescribes the conditions under which that STATE
may be sued. It gives CONSENT TO SUE THE STATE in advance.
It provides that any claim against the Government must
first be filed with the Commission on Audit which must act
on it within sixty (60) days.

2) ACT No. 3083: The GOVERNMENT consents and submits itself to


be sued upon money claim involving liability arising from
contract, express or implied, which could serve as basis of
civil action between private parties.

3) ARTICLE 2180, CIVL CODE: The STATE is responsible in like


manner when it acts through a Special Agent.

4) ARTICLE 2189, CIVIL CODE: Provinces, cities, and


municipalities shall be liable for damages for the death
of, or injuries suffered by any person by reason of the
defective conditions of roads, streets, bridges, public
buildings and other public works under their control or
supervision.

5) SECTION 22 (2), REPUBLIC ACT NO. 7160: LOCAL GOVERNMENT


CODE OF 1991: Local Government Units (LGUs) has been given
the power to sue and be sued.

2. BY MEANS OF A SPECIAL LAW:

P.D. NO. 1807: It provides the PROCEDURE whereby the Republic of


the Philippines may waive sovereign immunity from suit. It
provides other LEGAL PROCEEDINGS with respect to itself on its
property in connection with foreign obligations contracted by it
pursuant to law.

IMPLIED CONSENT

1. When the STATE commences litigation, it becomes vulnerable to a


counterclaim.

2. When the State enters into a business contract.

3. When it would be equitable for the Government to claim


immunity.

SCOPE OF THE CONSENT

1. Under ACT No. 3083: 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 the government would not pay, it cannot be
compelled to pay by attachment or otherwise.

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FUNDAMENTALS OF POLITICAL LAW REVIEW CONSTITUTIONAL LAW
CHAPTER 1: STATE IN GENERAL HANDOUT NO. 02 (STATE
IMMUNITY)

The procedure is for the Commission on Audit to furnish the


Office of the President with the decisions so it could include
the amount in the budget for the next year as 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 the


Government funds or property, no ordinary civil action can be
filed against him, UNLESS there is a clear showing of malice. BUT
a reinstatement of the funds to the Government accounts and a
refund by the private party can be ordered. (Commissioner of
Public Highways vs. San Diego, 31 SCRA 616).

2. Under a CHARTER: When a consent to be sued is provided by a


charter, the consent does not stop with the RENDITION OF
JUDGMENT, but goes up to the SATISFACTION OF THE JUDGMENT.

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