Immunity From Suit

Question 1

What is doctrine of state immunity from suit?

Answer 1

Article XVI, Sec. 3- “The State may not be sued without its consent.”

Question 2

Does the Doctrine of State Immunity form Suit apply also to foreign government or state?

Answer 2

Yes. We are bound by the DOCTRINE OF SOVEREIGN EQUALITY. All states are sovereign equals. An equal may not assume jurisdiction over another equal. Otherwise it will unduly vex the peace of nations

Question 3

Q. Can you sue the State?

Answer 3

A. Yes. As long as it gives its consent. A State may not be sued without its consent.

Question 4

Q. How does a State waive its immunity from suit?

Answer 4

A. Generally 2 ways EXPRESSLY or IMPLIEDLY.

Question 5

Q. How does the state waives its right EXPRESSLY?

Answer 5

Through the enactment by Congress of a general law or special law.

Question 6

May the Solgen validly waive immunity from suit?

Answer 6

No. A mere lawyer of the government cannot validly waive immunity from suit. Only the Congress can. (Republic vs. Purisima)

Question 7

What is an example of general law that waives immunity from suit?

Answer 7

COMMONWEALTH ACT 387 as amended by PD 1445 or the GENERAL AUDITING LAW- any money claim arising from contract with the government whether expressed or implied must first be presented to COA and only when COA refuses payment that a party can sue.

Question 8

Where do you appeal the decision of the COA?

Answer 8

The SC. Decisions of COA are reviewable by SC via petition for certiorari. (DAR vs. NLRC, J. Vitug)

Question 9

Give examples of Special Laws that waives immunity from suit

Answer 9

a. Article 2180, NCC- “The State is responsible xxx when it acts though a special agent xxx.”
b. Article 2189, NCC- “Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision.

c. Sec. 24, Local Government Code- “Liability for Damages- Local government units and their officials are not exempt from liability for death or injury to persons or damage to property.”
d. Charters of GOCC- GSIS, DBP, LBP

Question 10

What are the two ways which immunity from suit is waived impliedly?

Answer 10

1. When the State itself commences litigation, thereby opening itself to possible counterclaim.
2. When the State enters into a contract with private party

Question 11

What is the REstrictive Doctrine of State Immunity

Answer 11

The contract entered only thru a commercial or proprietary capacity (jure gestionis) is a waiver from suit.

Question 12

What is Jure Imperii?

Answer 12

contracts entered into by the government in its sovereign capacity; no waiver of state immunity from suit.

Question 13

What is Jure Gestionis?

Answer 13

contracts entered into by the government in its commercial and proprietary capacity; there is waiver of state immunity from suit. (Restrictive Doctrine of State Immunity from Suit)

Question 14

What is the difference between suability and Liability?

Answer 14

A state can never be held liable if it does not first consent to be sued. SUABILITY is just a matter of a state giving its consent to be sued.

• LIABILITY is a matter of applicable law and circumstance of the case. 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.
• If performing a governmental function, even if it can be sued, the state cannot be held liable

Question 15

If the state its immunity from suit, is it automatically liable?

Answer 15

No. If performing a governmental function, even if it can be sued, the state cannot be held liable

Question 16

Q. Assume that you are allowed by the State to sue. After trial, judgement was rendered in your favor, holding the State liable. Judgement thereafter attained finality. Can you garnish or levy government funds to execute the judgement?

Answer 16

A. No. It will paralyze the operations of the government. Waiver extends only up to the rendition of judgement. Execution requires another waiver. The disbursement of public funds requires an appropriate appropriation law.

Question 17

What is your remedy in case you win a case againts the state?

Answer 17

To make representation with the proper legislative authority for the enactment of an appropriation law necessary to satisfy the judgement.

Question 18

Q. What if the legislative authority refuses to enact the law in case you availed of the remedy of representation?

Answer 18

Go to the courts and ask for MANDAMUS to compel the legislative authority to enact the required law. True, the duty to appropriate is discretionary. The exception however, as in this case, is when there is already a money judgement against the government, the discretionary duty becomes ministerial

Question 19

When do you consider a suit against public officials as a suit against the state itself?

Answer 19

The suit must be regarded as one against the State where the satisfaction of judgement against the public official concerned will require the State itself to perform a positive act such as appropriation of the amount necessary to pay the damages awarded to the plaintiff. (LANSANG VS. GARCIA)

Question 20

The are the instances where a public official can be held liable in his personal capacity

Answer 20

a. Acts were unlawful or illegal
b. Acts were done in a personal capacity – Sexual Harassment in the office
c. Injurious to the rights of others with bad faith