Seatwork - Consti Law1 - State Immunity

University of Cebu
LAW 113 Constitutional Law 1

Atty. Ria Espina
Topic: State Immunity
1. Is the rule that “The State may not be sued without its consent” absolute? If not, h
ow may consent of the State to be sued given?
No, the rule is not absolute. The general rule is that the State may not be sued except when i
t gives consent is not absolute. As held by the Supreme Court in Municipality of San Fernan
do vs. Judge Firme, 195 SCRA 692, consent takes the form of express or implied consent:
Express consent may be embodied in a general law or a special law. The standing consent o
f the State to be sued in case of money claims involving liability arising from contracts is foun
d in Act No. 3083. A special law may be passed to enable a person to sue the government fo
r an alleged quasi-delict, as in Merritt v. Government of the Philippine Islands (34 Phil 311).
(see United States of America v. Guinto, G.R. No. 76607, February 26, 1990, 182 SCRA 644,
654.)
Consent is implied when the government enters into business contracts, thereby descending
to the level of the other contracting party, and also when the State files a complaint, thus ope
ning itself to a counterclaim. (Ibid)
2. When is a suit against a public official deemed to be a suit against the State?
As a general rule, a suit against a public official is deemed to be a suit against the State whe
n the suit is against the acts of the official in performance of the ordinary discharge of his fun
ction within the scope of his authority.
The rule does not apply where:
1. The public official is charged in his official capacity for acts that are unlawful and injuri
ous to the rights of others. Public officials are not exempt, in their personal capacity, from
liability arising from acts committed in bad faith; or
2. The public official is clearly being sued not in his official capacity but in his personal ca
pacity, although the acts complained of may have been committed while he occupied a p
ublic position. (Lansang vs. CA, G.R. No. 102667, February 23, 2000)
A test in determining whether a suit against a public officer is a suit against the State is that, i
f a public officer or agency is sued and made liable, the State will have to perform an affirmat
ive act of appropriating the needed amount to satisfy the judgment. If the State will have to d
o so, then, it is a suit against the State.
3.The rule that when the State enters into a contract with a private individual or entity,
it is deemed to have descended to the level of that private individual or entity and, the
refore, is deemed to have tacitly given its consent to be sued, is that without any quali
fication?
As a general rule, immunity only extends to acts of jure imperii. Private, commercial and pro
prietary acts (jure gestionis) of the State are not subject to State Immunity.
However, the general rule does not apply where the contract relates to the exercise of its sov
ereign functions. Distinction must still be made between one which is executed in the exercis
e of its sovereign function and another which is done in its proprietary capacity. As ruled in S
yquia vs. Lopez, 84 Phil. 312 (1949), the correct test for the application of State immunity is
not the conclusion of a contract by a State but the legal nature of the act is shown. Also in th
e same case, the United States concluded contracts with private individuals but the contracts
notwithstanding the States was not deemed to have given or waived its consent to be sued f
or the reason that the contracts were for jure imperii and not for jure gestionis.
CJ Marshall held in Bank of US vs. Planter’s Bank: "It is, we think, a sound principle, that wh
en a government becomes a partner in any trading company, it divests itself, so far as c
oncerns the transactions of that company, of its sovereign character, and takes that of a priv
ate citizen. As a member of a corporation, a government never exercises its sovereignty. It a
cts merely as a corporator, and exercises no other power in the management of the affairs of
the corporation, that are expressly given by the incorporating act." By engaging in a particula
r business thru the instrumentality of a corporation, the government divests itself pro hac vic
e of its sovereign character, so as to render the corporation subject to the rules of law gover
ning private corporations."
4. What is the Restrictive Doctrine of State Immunity from Suit?
The Restrictive Doctrine of State Immunity from Suit means that a State may be said to have
descended to the level of an individual and can thus be deemed to have tacitly given its cons
ent to be sued only when it enters into business contracts. However, the restrictive applicati
on of State immunity is proper only when the proceedings arise out of commercial transactio
ns of the foreign sovereign, its commercial activities or economic affairs. It does not apply w
here the contract relates to the exercise of its sovereign functions. (United States vs. Ruiz, G.
R. No. L‐ 35645, May 22, 1985)
Under the restrictive doctrine, sovereign immunity is only recognized with regard to public ac
ts or acts jure imperii (or those in pursuant to governmental functions) . If the act is private or
acts jure gestionis (those that are for profit), then immunity cannot be invoked. ( The Holy Se
e v. Rosario, et. al., 238 SCRA 524 (1994).

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University of Cebu

LAW 113 Constitutional Law 1

Topic: State Immunity

The rule does not apply where:

4. What is the Restrictive Doctrine of State Immunity from Suit?

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