CONSTI Chapter 4 Immunity

Question 1

Is the doctrine of state immunity also available to foreign states?

Answer 1

Yes, The basis is The Principle Of The Sovereign Equality of States. The State cannot assert jurisdiction over another, to do so would “unduly vex the peace of the nations”

This rule is a necessary consequence of the principles of independence and equality of States

Question 2

The Doctrine of State Immunity meaning

Answer 2

The traditional rule of State immunity exempts a State from being sued in the courts.

Question 3

Immunity from suits of foreign states absolute?

Answer 3

No, 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 or, 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, but not with respect to its contracts entered into by it as governmental or sovereign acts.

1. if engaged regularly therein in a business or trade
2. on the basis of its contracts in the host state which may be considered as purely commercial, private and proprietary acts

But not with respect to its contracts entered into by it as governmental or sovereign acts

(as it stands now, the application of the doctrine from suit has been restricted to sovereign or governmental activities (Jure imperii)

Question 4

The Constitution declares “The state may not be sued without its consent.” Why?

Answer 4

It is obvious that indiscriminate suits againts the state will result in the impairment of its dignity, besides being a challenge to its supposed infallibility

Another justification is the practical consideration that 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.

Question 5

To Justice Holmes, the doctrine of non-suitability is based on?

Answer 5

Not on “any formal conception or obsolete theory but on the logical and practical ground that there can be no legal right againts the authority which makes the law on which the right depends.

“That the state can do no wrong”

Question 6

Jure Imperii

Answer 6

as it stands now, the application of the doctrine from suit has been restricted to sovereign or governmental activities

“Governmental acts”
Ex. Eminent domain

Question 7

Jure Gestionis

Answer 7

The mantle of state immunity cannot be extended to commercial, private and proprietary acts

Propriety rights

Question 8

Restrictive Theory

Answer 8

As it stands now, the application of the doctrine from suit has been restricted to sovereign or governmental activities

Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the act involved whether the entity claiming immunity performs governmental as opposed to proprietary, functions.

Question 9

US v RUIZ

Answer 9

Whether the US may be sued?

HELD:
No. The traditional rule of State immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a necessary consequence of the principles of independence and equality of States. However, the rules of International Law are not petrified; they are constantly developing and evolving. In addition, because the activities of states have multiplied, it has been necessary to distinguish them — between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii. The restrictive application of State immunity is now the rule in the United States, the United Kingdom and other states in western Europe. (See Coquia and Defensor-Santiago, Public International Law, pp. 207-209 [1984].)

The restrictive application of state immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a state may be said to have descended to the level of an individual and can be thus deemed to have tacitly given its consent to be sued only when the contract relates to the exercise of its sovereign functions. In this case, the projects are an integral part of the naval base which is devoted to the defense of both the US and the Philippines, undisputed a function of the government of the highest order, they are not utilized for nor dedicated to commercial or business purposes.

Question 10

Restrictive application

Answer 10

The restrictive application of state immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a state may be said to have descended to the level of an individual and can be thus 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

Question 11

The fact that a foreign state enters into a contract with a private party in the host state would result automatically in the waiver of its sovereign immunity?

Answer 11

No, The mere entering into a contract by a foreign state with a private property cannot be the ultimate test. Such an act can only be start of the inquiry. the character of said contract would still need to be determined, such that said foreign state may be sued it its contract were commercial in nature.

Question 12

According to the newer or restrictive theory, the immunity of the sovereign is?

Answer 12

recognized only with regard to public acts or Jure Imperii of a state, but not with regard to private acts or acts Jure Gestionis

Question 13

The restrictive theory came about because of?

Answer 13

the entry of sovereign states into purely commercial activities remotely connected with the discharge of governmental functions

Question 14

China National Machinery v. Sta Maria and GTZ v CA

Answer 14

Although CNMEG claims to be Government-owned corporation, it failed to adduce evidence that it has not consented to be sued under Chinese law. It was CNMEG that initiated the undertaking, and not the Chinese government. Northrail project was a purely commercial transaction.

Following the court’s ruling in GTZ, in the absence of evidence to the contrary, CNMEG is to be presumed to be government-owned and controlled corporation without an original charter. As a result, it has the capacity to sue and be sued.

Question 15

Immunity from suit is determined by the?

Answer 15

character of the objects for which the entity was organized.

Question 16

Application: State Immunity

Answer 16

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. If this is shown, the action can be dismissed as a suit againts the State unless its immunity had been previously waived.

Question 17

Sanders v Veridiano

Answer 17

Where two american employees of the Subic Naval Base sued its commanding general for damages, for allegedly defamatory remarks

SC: Petitioners were being sued as officers of US government. As they have acted on behalf of that government, and within the scope of their authority, it is that government, and not the petitioners personality, that is responsible for their acts.

ISSUE:

Were the petitioners performing their official duties when they did the acts for which they are being sued for damages?

HELD:

YES. It is clear in the present case that the acts for which the petitioners are being called to account were performed by them in the discharge of their official duties. Sanders as director of the special services department of NAVSTA, undoubtedly had supervision over its personnel including the private respondents and had a hand in their employment, work, assignments, discipline, dismissal and other related matters. The act of Moreau is deadly official in nature, performed by him as the immediate superior of Sanders and directly answerable to Naval Personnel in matters involving the special department of NAVSTA.

Question 18

UP v Dizon

Answer 18

The reason was that as far as the state itself was concearned, it had already discharged its obligation; clearly, what the complainant wanted only was the actual payment of the amount already set aside, which payment was now the sole responsibility of the defendant. The action was properly filed againts him only and not againts the state and no waiver of its immunity was necessary.

A distinction should first be made between suability and liability. “Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable.

Question 19

The Test of suability, state or public officer

Answer 19

The test is whether, assuming the decision is rendered againts the public officer impleaded, enforement thereof will require an affirmative act from the state, such as the appropriation of the needed amount to satisfy the judgment. If it does, the suit is one againts the state and its inclusion as party defendant is necessary. If, on the other hand, the party impleaded may by himself alone comply with the decision of the court without the necessity of involving the state, then the suit can prosper against him and will not be considered a claim againts the state

where the 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.

Question 20

Holy See v Rosario

Answer 20

In the absence of legislation defining what activities and transactions shall be considered “commercial” and as constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may be. Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit.

In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business, surely the said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said claim.

The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and entered into force in the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be recognized as regards the sovereign itself, which in this case is the Holy See.

The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of the donation. The fact that squatters have occupied and are still occupying the lot, and that they stubbornly refuse to leave the premises, has been admitted by private respondent in its complaint.

WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against petitioner is DISMISSED.

Question 21

Forms of Consent

Answer 21

The consent of the state to be sued may be given expressly or impliedly.

Question 22

Express consent

Answer 22

Maybe manifested either through a general law or a special law.

1.General law
2.Special law

Question 23

Implied consent

Answer 23

is given when the state itself commences litigation or when it enters into a contract

1. commences litigation
2. enters into a contract

Question 24

The Doctrine of sovereign immunity was not an instrument for perpetrating any injustice on a citizen Example:

Answer 24

In exercising the right of imminent domain, the State exercises its Jure imperii, as distinguised from its propriety rights, or jus gestionis; yet, even in that area, when private property is to be taken in expropriation without just compensation being paid, the defense of immunity from suit cannot be set up by the state against an action for payment by the owners

Question 25

Example of express consent

Answer 25

Act No. 3083 (General law)
enacted by the legislature (Special law) - It must be embodied in a duly enacted statute and may not be given by a mere counsel of the government

Question 26

Example of Implied consent

Answer 26

1.Contract like deed of donation. Because there is no garnishment involved only the return of the property
2.When the state itself files a complaint, the defendant is entitled to file a counterclaim againts it.

The government impliedly allowed itself to be sued when it filed a complaint in intervention for the purpose of asserting a claim for affirmative relief against the plaintiff, to wit, recovery of a vessel.

The suability would follow only if the contract is entered into by the government in its proprietary capacity. Governmental contracts do not result in implied waiver of the immunity of the state from suit.

Question 27

When the State gives it consent to be sued, it does not thereby also consent to the execution of judgement against it. Why?

Answer 27

Villasor Case, is that execution will require another waiver, lacking which the decision will require another waiver, lacking which the decision cannot be enforced against the state.

Because, public funds cannot be the object of garnishment proceedings even if the consent to be sued had been previously granted and the state liability adjudged.

Disbursements of public funds must be covered by the corresponding appropriation as required by law. The functions and public services rendered by the state cannot be allowed to be paralized or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law.

But: funds of public corporations which can sue and be sued were not exempt from garnishment.

Question 28

UP v Dizon (Fundemantal rule that government properties are not subject to levy and execution, However

Answer 28

Unless otherwise provided for by statute.

the court has, in various intances, distinguished between government funds and properties for public use and those not held for public use.

Question 29

The question as to whether such property is leviable or not is to be determined by

Answer 29

The usage and purposes for which it is held.

Question 30

Not subject to levy and sale under execution

Answer 30

1.Properties held for public use and generally everything held for governmental purposes.
2.

Question 31

Such property may be seized and sold under execution against the corporation

Answer 31

1. Where a municipal corporation owns in its propriety capacity, as distinguished from its public or government capacity, property not used or used for a public purpose
2. If the public use is wholly abandoned, such property becomes subject to execution

Question 32

Incorporated Agency v Unincorporated

Answer 32

Incorporated - has a charter of its own that invests it with a separate juridical personality.

Ex. SSS, UP, City of Manila

Unincorporated - has no separate juridical personaliy but is merged in the general machinery of the government.

Ex. DOJ,