DOCTRINE OF

STATE
IMMUNITY
Concept and Basis
• The State may not be sued without its
consent (Art. XVI, Sec. 3). It is
recognition of the sovereign
character of the State and an express
affirmation of the unwritten rule
insulating it from the jurisdiction of the
courts of justice. As it is obvious that
indiscriminate suits against the State
will result in the impairment of its
dignity, besides being challenge to its
supposed infallibility (Doctrine of non-
suability).
Concept and Basis
• Justification
1) There can be no legal right
against the authority which makes the
law on which the right depends; and
2) The demands and
inconveniences of litigation will divert
the time and resources of the State
from the more pressing matters
demanding its attention, to the
prejudice of the public welfare.
The doctrine is also available to
foreign States insofar as they are
sought to be sued in the courts of the
local State. The added basis in this
case is the principle of the sovereign
equality of States, under which one
State cannot assert jurisdiction
another in violation of the maxim par
in parem non habet imperium.
This does not mean though that the
foreign state would at all times be
immune from all suits filed against it
before courts of a host or local state.
Accordingly, it has been ruled that such
foreign states may be sued in the host
state if engaged regularly therein in a
business or trade, even if not so
engaged, on the basis of its contracts in
the host state which may be
considered as purely commercial,
private and proprietary acts.
However, the existence of a contract
itself does not per se, mean that
sovereign states, may at all times, be
sued in local courts. The complexity
of relationships between sovereign
states, brought about by their
increasing commercial activities,
mothered by a more restrictive
application of the doctrine.
• The Philippines adheres to the
restrictive application of the
doctrine. Thus, the application of
the doctrine of immunity from suit
has been restricted to sovereign or
governmental activities (jure
imperii). The mantle of state
immunity cannot be extended to
commercial, private and
proprietary acts (jure gestionis).
• A State may be said to have descended
to the level of an individual and can thus
be deemed to have tacitly given its
consent to be sued only when it enters
into business contracts. It does not apply
where the contract relates to the
exercise of its sovereign functions.
• The restrictive theory came about
because of the entry of sovereign states
into purely commercial activities
remotely connected with the discharge
of governmental functions. However, not
all acts jure imperii may exempt a State
from suit, as in the case of its exercise of
its power of eminent domain, when
done without payment of just
compensation.
Applications
• Actions are rarely instituted directly
against the Republic of the Philippines,
presumably because such a step will
provoke resort to the doctrine of State
immunity and possible dismissal of the
complaint for lack of jurisdiction. The
usual practice is to file such claims not
against the State itself, so as to avoid the
appearance of its involvement, but
against the officer of the government
Applications
• who is supposed to discharge the
responsibility or grant the redress
demanded. It is important then to
determine if the State is the real party in
interest, that is, that the claim if proved
will be a direct liability of the State and
not merely of the officer impleaded. So
the test is assuming the decision is
rendered against the public officer
impleaded, enforcement thereof will
require an
Applications
• affirmative act from the State, such
as the appropriation of the needed
amount to satisfy the judgment. It is
understood however, that where a
public officer acts without or in
excess of jurisdiction, any injury
caused by him is his own personal
liability and cannot be imputed to
the State.
Waiver of Immunity
Although the doctrine of State immunity is
sometimes called “the royal prerogative of
dishonesty,” it must be observed in fairness
that the State does not often avail itself of
this rule to take undue advantage of
parties that may have legitimate claims
against it. Hence, the State may, if it so
desires, divest itself of its sovereign
immunity and thereby voluntarily open
itself to suit. In fine, the State may be sued
if it gives its consent.
Forms of Consent
• The consent of the State to be sued may
be given expressly or impliedly. Express
consent may be manifested either
through a general law or a special law.
The express consent of the State must be
embodied in a duly enacted statute
and may not be given by a mere
counsel of the government.
Forms of Consent
• Implied consent is given when the State
itself commences litigation or when it
enters into a contract. When the
government enters into a contract, for
the State, then it is deemed to have
divested itself of the mantle of sovereign
immunity and descended to the level of
the ordinary individual. Having done so,
it becomes subject to judicial action and
processes.
Forms and Consent
• Note however, that when the State gives
its consent to be sued, it does not
thereby also consent to the to the
execution of the judgment against it.
Such that, execution will require another
waiver, lacking which the decision
cannot be enforced against the State.
Suits Against Government
Agencies
• When suit is filed not against the
government itself or its officials but
against one of its entities, it must be
ascertained whether or not the State, as
the principal that may ultimately be held
liable, has given its consent to be sued.
This ascertainment will depend on
whether the government agency
impleaded is incorporated or
unincorporated.
Suits Against Government
Agencies
• If the agency is incorporated, the test of
its suability is found in its charter. It is
suable if its charter says so, and this is
true regardless of the functions it is
performing. On the other hand, since
unincorporated agency has no separate
juridical personality, any suit filed against
it is necessarily an action against the
Philippine Government of which it is part.
Suits Against Government
Agencies
• Thus, it is necessary to determine to the
nature of the functions in which the
agency is engaged, so as to hold it
suable if they are proprietary and not
suable if they are governmental. The test
in every case is the nature of the primary
functions being discharged.
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.
However, this exemption does not, as a
general rule, apply to government-
owned or controlled corporations
because they have legal personalities
distinct from their shareholders.
Suability vs. Liability
• The mere fact that the State is suable
does not mean that it is liable; waiver of
immunity by the State does not mean
concession of its liability. Suability is the
result of the express or implied consent
of the State to be sued. Liability, on the
other hand, is determined after hearing
on the basis of the relevant laws and the
established facts.
Suability vs. Liability
When the State allows itself to be sued, all
it does in effect is to give the other party
an opportunity to prove, if it can, that the
State is liable. The State, in many cases,
may be suable but not liable.