Session 3.

State Immunity from Suit

Atty. Vincent Pepito F.Yambao, Jr.

Outline
Basis
When is a suit against the State?
Consent to be sued
Express consent
Implied Consent
Suit against Municipal Corporations
Suit against Foreign States
Suit against International Agencies
Suit against Public Officers
Consent to Execution
State Immunity from Suit
1987 Const., Art. XVI, Sec. 3. The State may not be sued
without its consent

Executive Order No. 292, Chapter 3, Section 10. Non-

suability of the State.No suit shall lie against the State
except with its consent as provided by law.
 The immunity from suit is based on the political
truism that the State, as a sovereign, can do no
wrong

Air Transportation Office v. Spouses David,

G.R. No. 159402, February 23, 2011
 In a republican state, like the Philippines, government
immunity from suit without its consent is derived from the will
of the people themselves in freely creating a government of
the people, by the people, and for the people a
representative government through which they have agreed to
exercise the powers and discharge the duties of their
sovereignty for the common good and general welfare. In so
agreeing, the citizens have solemnly undertaken to surrender
some of their private rights and interest which were
calculated to conflict with the higher rights and larger
interests of the people as a whole, represented by the
government thus established by them all. One of those
higher rights, based upon those larger interests is that
government immunity. The members of the respondent Labor
Union themselves are part of the people who have freely
formed that government and participated in that solemn
undertaking. In this sense and a very real one it is they
are in effect attempting to sue themselves along with the rest
of the people represented by their common government an
anomalous and absurd situation indeed.
Metran v. Paredes, G.R. No. L-1232 January 12, 1948
 Practical considerations dictate the establishment
of an immunity from suit in favor of the
State. Otherwise, and the State is suable at the
instance of every other individual, government
service may be severely obstructed and public
safety endangered because of the number of suits
that the State has to defend against.

Air Transportation Office v. Spouses David, G.R. No. 159402, February 23, 2011
 [A] continued adherence to the doctrine of non-suability
is not to be deplored for as against the inconvenience
that may be caused private parties, the loss of
governmental efficiency and the obstacle to the
performance of its multifarious functions are far greater
if such a fundamental principle were abandoned and the
availability of judicial remedy were not thus restricted.
With the well-known propensity on the part of our people
to go to court, at the least provocation, the loss of time
and energy required to defend against law suits, in the
absence of such a basic principle that constitutes such
an effective obstacle, could very well be imagined.

ProvidenceWashington Insurance Co. v. Republic (29 SCRA 598)

1 Is it a suit against the State?

2 Has the State given its consent?

3 Is the State Liable?

4 Can public funds be garnished?

Republic vs. Feliciano
The plaintiff has impleaded the Republic of the
Philippines as defendant in an action for recovery of
ownership and possession of a parcel of land, bringing
the State to court just like any private person who is
claimed to be usurping a piece of property. A suit for the
recovery of property is not an action in rem, but an
action in personam. It is an action directed against a
specific party or parties, and any judgment therein binds
only such party or parties. The complaint filed by
plaintiff, the private respondent herein, is directed
against the Republic of the Philippines, represented by
the Land Authority, a governmental agency created by
Republic Act No. 3844.
Sayson v. Singson

The suit disguised as one for mandamus to compel

the Auditors to approve the vouchers for payment, is
a suit against the State, which cannot prosper or be
entertained by the Court except with the consent of
the State.
Farolan v. CTA
Since the petitioner demands that the Commissioner of Customs
be ordered to pay for actual damages it sustained, for which
ultimately liability will fall on the government, it is obvious that
this case has been converted technically into a suit against the
state.

On this point, the political doctrine that "the state may not be
sued without its consent," categorically applies. As an
unincorporated government agency without any separate
juridical personality of its own, the Bureau of Customs enjoys
immunity from suit. Along with the Bureau of Internal Revenue, it
is invested with an inherent power of sovereignty, namely,
taxation. As an agency, the Bureau of Customs performs the
governmental function of collecting revenues which is definitely
not a proprietary function. Thus, private respondent's claim for
damages against the Commissioner of Customs must fail.
Shauf v. CA
The doctrine of immunity from suit will not apply and
may not be invoked where the public official is being
sued in his private and personal capacity as an ordinary
citizen. The cloak of protection afforded the officers and
agents of the government is removed the moment they
are sued in their individual capacity. This situation
usually arises where the public official acts without
authority or in excess of the powers vested in him. It is a
well-settled principle of law that a public official may be
liable in his personal private capacity for whatever
damage he may have caused by his act done with malice
and in bad faith, or beyond the scope of his authority or
jurisdiction
 Act No. 327 as
amended by
PD 1445

General EO 292

Express Civil Code

Provision of
Law
Charter of
GOCCs
Special Law
Local
Government
Code
 When the State engages in proprietary functions

When it files a suit in which case the adverse party may

file a counter-claim

When the doctrine would in effect be used to perpetuate

an injustice
Republic v. Feliciano
Private respondent contends that the consent of petitioner
may be read from the Proclamation itself, when it established
the reservation " subject to private rights, if any there be. "
The Court does not agree. No such consent can be drawn
from the language of the Proclamation. The exclusion of
existing private rights from the reservation established by
Proclamation No. 90 cannot be construed as a waiver of the
immunity of the State from suit.
Waiver of immunity, being a derogation of sovereignty, will not
be inferred lightly, but must be construed in strictissimi juris.
Moreover, the Proclamation is not a legislative act. The
consent of the State to be sued must emanate from statutory
authority. Waiver of State immunity can only be made by an
act of the legislative body.
Sayson v. Singson
Consent to be sued for money claims is contained in
Act No. 327.
Republic v. Purisima
The consent, to be effective though, must come from the
State acting through a duly enacted statute as pointed
out by Justice Bengzon in Mobil. Thus, whatever counsel
for defendant Rice and Corn Administration agreed to
had no binding force on the government. That was
clearly beyond the scope of his authority. At any rate,
Justice Sanchez, in Ramos v. Court of Industrial
Relations, was quite categorical as to its "not [being]
possessed of a separate and distinct corporate
existence. On the contrary, by the law of its creation, it is
an office directly 'under the Office of the President of the
Philippines."
SSS v. CA
There should be no question on this score considering that the SSS is a
juridical entity with a personality of its own. It has corporate powers
separate and distinct from the Government. SSS' own organic act
specifically provides that it can sue and be sued in Court. These words "sue
and be sued" embrace all civil process incident to a legal action. So that,
even assuming that the SSS, as it claims, enjoys immunity from suit as an
entity performing governmental functions, by virtue of the explicit provision
of the aforecited enabling law, the Government must be deemed to have
waived immunity in respect of the SSS, although it does not thereby
concede its liability. That statutoy law has given to the private-citizen a
remedy for the enforcement and protection of his rights. The SSS thereby
has been required to submit to the jurisdiction of the Courts, subject to its
right to interpose any lawful defense. Whether the SSS performs
governmental or proprietary functions thus becomes unnecessary to
belabor. For by that waiver, a private citizen may bring a suit against it for
varied objectives, such as, in this case, to obtain compensation in damages
arising from contract and even for tort.
Rayo v. CFI of Bulacan
It is not necessary to write an extended dissertation on
whether or not the NPC performs a governmental
function with respect to the management and operation
of the Angat Dam. It is sufficient to say that the
government has organized a private corporation, put
money in it and has snowed it to sue and be sued in any
court under its charter. (R.A. No. 6395, Sec. 3[d]). As a
government owned and controlled corporation, it has a
personality of its own, distinct and separate from that of
the Government. (See National Shipyards and Steel
Corp. vs. CIR, et al., L-17874, August 31, 1963, 8 SCRA
78 1). Moreover, the charter provision that the NPC can
'sue and be sued in any court' is without qualification on
the cause of action and accordingly it can include a tort
claim such as the one instituted by the petitioners.
Republic v. Sandiganbayan
Intervention is not an independent action, but is
ancillary and supplemental to an existing litigation.
Hence, the private respondents' action for
intervention in Civil Case No. 0025, not being an
independent action, is merely incidental to, or
related to, the said civil case.
Froilan v. Pan Oriental
The immunity of the state from suits does not
deprive it of the right to sue private parties in its own
courts. The state as plaintiff may avail itself of the
different forms of actions open to private litigants. In
short, by taking the initiative in an action against a
private party, the state surrenders its privileged
position and comes down to the level of the
defendant. The latter automatically acquires, within
certain limits, the right to set up whatever claims
and other defenses he might have against the state.
Lim v. Bowell
The claim for damages for the use of the property
against the intervenor defendant Republic of the
Philippines to which is was transferred, likewise, cannot
be maintained because of the immunity of the state
from suit. The claim obviously constitutes a charge
against, or financial liability to, the Government and
consequently cannot be entertained by the courts except
with the consent of said government.
Plaintiff argues that by its intervention, the Republic of
the Philippines, in effect, waived its right of non-suability,
but it will be remembered that the Republic intervened in
the case merely to unite with the defendant Attorney
General of the United States in resisting plaintiff's
claims, and for that reason asked no affirmative relief
against any party in the answer in intervention it filed.
Malong v. PNR
We hold that in the instant case the State divested itself of its
sovereign capacity when it organized the PNR which is no
different from its predecessor, the Manila Railroad Company. The
PNR did not become immune from suit. It did not remove itself
from the operation of articles 1732 to 1766 of the Civil Code on
common carriers.
The correct rule is that "not all government entities, whether
corporate or non-corporate, are immune from suits. Immunity
from suit is determined by the character of the objects for which
the entity was organized." (Nat. Airports Corp. vs. Teodoro and
Phil. Airlines, Inc., 91 Phil. 203, 206; Santos vs, Santos, 92 Phil.
281, 285; Harry Lyons, Inc. vs. USA, 104 Phil. 593.)
Suits against State agencies with respect to matters in which
they have assumed to act in a private or non-governmental
capacity are not suits against the State (81 C.J.S. 1319).
 Suits against State agencies with relation to matters in
which they have assumed to act in a private or non-
governmental capacity, and various suits against certain
corporations created by the State for public purposes,
but to engage in matters partaking more of the nature of
ordinary business rather than functions of a
governmental or political character, are not regarded as
suits against the State.
The latter is true, although the State may own the stock
or property of such a corporation, for by engaging in
business operations through a corporation the State
divests itself so far of its sovereign character, and by
implicating consents to suits against the corporation. (81
C.J. S. 1319.)
Amigable v. Cuenca
If the constitutional mandate that the owner be
compensated for property taken for public use were to
be respected, as it should, then a suit of this character
should not be summarily dismissed. The doctrine of
governmental immunity from suit cannot serve as an
instrument for perpetrating an injustice on a citizen. Had
the government followed the procedure indicated by the
governing law at the time, a complaint would have been
filed by it, and only upon payment of the compensation
fixed by the judgment, or after tender to the party
entitled to such payment of the amount fixed, may it
"have the right to enter in and upon the land so
condemned, to appropriate the same to the public use
defined in the judgment."
Suit Against Public Officers
Lansang v. CA
The doctrine of state immunity from suit applies to complaints filed
against public officials for acts done in the performance of their
duties. The rule is that the suit must be regarded as one against the
state where satisfaction of the judgment 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.
The rule does not apply where the public official is charged in his
official capacity for acts that are unlawful and injurious to the rights
of others. Public officials are not exempt, in their personal capacity,
from liability arising from acts committed in bad faith.
Neither does it apply where the public official is clearly being sued
not in his official capacity but in his personal capacity, although the
acts complained of may have been committed while he occupied a
public position.
 Officers/Agents
Unincorporated
Entity
Special Agents

Governmental
Municipal
Corporation
Proprietary
SECTION 11. The States Responsibility for Acts of Agents.
(1) The State shall be legally bound and responsible
only through the acts performed in accordance with the
Constitution and the laws by its duly authorized
representatives.
(2) The State shall not be bound by the mistakes
or errors of its officers or agents in the exercise of their
functions.
 Art. 24
Art. 34
Art. 2189
Art. 2176
Art. 2180, par 5.
Meritt v. Government
The state, by virtue of such provisions of law, is not
responsible for the damages suffered by private individuals in
consequence of acts performed by its employees in the
discharge of the functions pertaining to their office, because
neither fault nor even negligence can be presumed on the
part of the state in the organization of branches of public
service and in the appointment of its agents; on the contrary,
we must presuppose all foresight humanly possible on its part
in order that each branch of service serves the general weal
an that of private persons interested in its operation. Between
these latter and the state, therefore, no relations of a private
nature governed by the civil law can arise except in a case
where the state acts as a judicial person capable of acquiring
rights and contracting obligations. (Supreme Court of Spain,
January 7, 1898; 83 Jur. Civ., 24.)
 That the responsibility of the state is limited by article
1903 to the case wherein it acts through a special agent
(and a special agent, in the sense in which these words
are employed, is one who receives a definite and fixed
order or commission, foreign to the exercise of the duties
of his office if he is a special official) so that in
representation of the state and being bound to act as an
agent thereof, he executes the trust confided to him.
This concept does not apply to any executive agent who
is an employee of the acting administration and who on
his own responsibility performs the functions which are
inherent in and naturally pertain to his office and which
are regulated by law and the regulations."
Suit against Local Governments
 Local Government Code, Section 24. Liability for
Damages.- Local government units and their
officials are not exempt from liability for death or
injury to persons or damage to property.
Torio v. Fontanilla
Under Philippine laws municipalities are political bodies corporate
and as such are endowed with the faculties of municipal
corporations to be exercised by and through their respective
municipal governments in conformity with law, and in their proper
corporate name, they may inter alia sue and be sued, and contract
and be contracted with.

The powers of a municipality are twofold in character public,

governmental or political on the one hand, and corporate, private, or
proprietary on the other. Governmental powers are those exercised
by the corporation in administering the powers of the state and
promoting the public welfare and they include the legislative, judicial
public, and political Municipal powers on the other hand are
exercised for the special benefit and advantage of the community
and include those which are ministerial private and corporate.
 If the injury is caused in the course of the
performance of a governmental function or duty no
recovery, as a rule, can be had from the municipality
unless there is an existing statute on the matter, 10
nor from its officers, so long as they performed their
duties honestly and in good faith or that they did not
act wantonly and maliciously
Suit Against Foreign State
Holy See v. Rosario
There are two conflicting concepts of sovereign
immunity, each widely held and firmly established.
According to the classical or absolute theory, a
sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign.
According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with
regard to public acts or acts jure imperii of a state,
but not with regard to private acts or acts jure
gestionis
 Acts done by State in its
Jure Imperii
sovereign capacity

Acts done by State in its private

Jure Gestionis
capacity
 lease by a foreign government of apartment buildings
for use of its military officers (Syquia v. Lopez, 84 Phil.
312 [1949]);

conduct of public bidding for the repair of a wharf at a

United States Naval Station (United States of America
v. Ruiz, supra.); and

change of employment status of base employees

(Sanders v. Veridiano, 162 SCRA 88 [1988]).
 the hiring of a cook in the recreation center,
consisting of three restaurants, a cafeteria, a
bakery, a store, and a coffee and pastry shop at the
John Hay Air Station in Baguio City, to cater to
American servicemen and the general public (United
States of America v. Rodrigo, 182 SCRA 644
[1990]);
the bidding for the operation of barber shops in
Clark Air Base in Angeles City (United States of
America v. Guinto, 182 SCRA 644 [1990]).
 Operation of the restaurants and other facilities
open to the general public (US v. Guinto)
US v. Ruiz
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 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. In this case the
projects are an integral part of the naval base which is
devoted to the defense of both the United States and the
Philippines, indisputably a function of the government of
the highest order; they are not utilized for nor dedicated
to commercial or business purposes.
Rep. of Indonesia v. Vinzon
There is no dispute that the establishment of a diplomatic
mission is an act jure imperii. A sovereign State does not
merely establish a diplomatic mission and leave it at that; the
establishment of a diplomatic mission encompasses its
maintenance and upkeep. Hence, the State may enter into
contracts with private entities to maintain the premises,
furnishings and equipment of the embassy and the living
quarters of its agents and officials. It is therefore clear that
petitioner Republic of Indonesia was acting in pursuit of a
sovereign activity when it entered into a contract with
respondent for the upkeep or maintenance of the air
conditioning units, generator sets, electrical facilities, water
heaters, and water motor pumps of the Indonesian Embassy
and the official residence of the Indonesian ambassador.
 A foreign agent, operating within a territory, can be
cloaked with immunity from suit but only as long as
it can be established that he is acting within the
directives of the sending state. The consent of the
host state is an indispensable requirement of basic
courtesy between the two sovereigns.
Minucher v. CA
The official exchanges of communication between agencies of the government of the
two countries, certifications from officials of both the Philippine Department of
Foreign Affairs and the United States Embassy, as well as the participation of
members of the Philippine Narcotics Command in the buy-bust operation
conducted at the residence of Minucher at the behest of Scalzo, may be inadequate
to support the "diplomatic status" of the latter but they give enough indication that
the Philippine government has given its imprimatur, if not consent, to the activities
within Philippine territory of agent Scalzo of the United States Drug Enforcement
Agency. The job description of Scalzo has tasked him to conduct surveillance on
suspected drug suppliers and, after having ascertained the target, to inform local law
enforcers who would then be expected to make the arrest. In conducting surveillance
activities on Minucher, later acting as the poseur-buyer during the buy-bust operation,
and then becoming a principal witness in the criminal case against Minucher, Scalzo
hardly can be said to have acted beyond the scope of his official function or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of
the United States Drug Enforcement Agency allowed by the Philippine government to
conduct activities in the country to help contain the problem on the drug traffic, is
entitled to the defense of state immunity from suit.
US v. Guinto
It is clear from a study of the records of G.R. No. 80018 that
the individually-named petitioners therein were acting in the
exercise of their official functions when they conducted the
buy-bust operation against the complainant and thereafter
testified against him at his trial. The said petitioners were in
fact connected with the Air Force Office of Special
Investigators and were charged precisely with the function of
preventing the distribution, possession and use of prohibited
drugs and prosecuting those guilty of such acts. It cannot for
a moment be imagined that they were acting in their private
or unofficial capacity when they apprehended and later
testified against the complainant. It follows that for
discharging their duties as agents of the United States, they
cannot be directly impleaded for acts imputable to their
principal, which has not given its consent to be sued.
USA v. Reyes
Since it is apparent from the complaint that
Bradford was sued in her private or personal
capacity for acts allegedly done beyond the scope
and even beyond her place of official functions, said
complaint is not then vulnerable to a motion to
dismiss based on the grounds relied upon by the
petitioners because as a consequence of the
hypothetical admission of the truth of the
allegations therein, the case falls within the
exception to the doctrine of state immunity.
Suit against International
Organizations
WHO v. Aquino
The executive branch of the Philippine Government has expressly
recognized that petitioner Verstuyft is entitled to diplomatic
immunity, pursuant to the provisions of the Host Agreement. The
Department of Foreign Affairs formally advised respondent judge of
the Philippine Government's official position that accordingly "Dr.
Verstuyft cannot be the subject of a Philippine court summons
without violating an obligation in international law of the Philippine
Government" and asked for the quashal of the search warrant, since
his personal effects and baggages after having been allowed free
entry from all customs duties and taxes, may not be baselessly
claimed to have been "unlawfully imported" in violation of the tariff
and customs code as claimed by respondents COSAC officers. The
Solicitor-General, as principal law officer of the Government, 7
likewise expressly affirmed said petitioner's right to diplomatic
immunity and asked for the quashal of the search warrant.
 It is a recognized principle of international law and under our system
of separation of powers that diplomatic immunity is essentially a
political question and courts should refuse to look beyond a
determination by the executive branch of the government, and
where the plea of diplomatic immunity is recognized and affirmed by
the executive branch of the government as in the case at bar, it is
then the duty of the courts to accept the claim of immunity upon
appropriate suggestion by the principal law officer of the
government, the Solicitor General in this case, or other officer acting
under his direction. Hence, in adherence to the settled principle that
courts may not so exercise their jurisdiction by seizure and
detention of property, as to embarrass the executive arm of the
government in conducting foreign relations, it is accepted doctrine
that "in such cases the judicial department of (this) government
follows the action of the political branch and will not embarrass the
latter by assuming an antagonistic jurisdiction.
DFA v. NLRC
One of the basic immunities of an international
organization is immunity from local jurisdiction, i.e., that
it is immune from the legal writs and processes issued
by the tribunals of the country where it is found. (See
Jenks, Id., pp. 37-44). The obvious reason for this is that
the subjection of such an organization to the authority of
the local courts would afford a convenient medium thru
which the host government may interfere in their
operations or even influence or control its policies and
decisions of the organization; besides, such subjection
to local jurisdiction would impair the capacity of such
body to discharge its responsibilities impartially on
behalf of its member-states.
Garnishment of Public Funds
If the State is adjudged liable, can
public funds be garnished or public
property seized to satisfy the
judgment?
 The phrase that waiver of immunity by the State
does not mean a concession of liability means that
by consenting to be sued, the State does not
necessarily admit it is liable. The State is merely
giving the plaintiff a chance to prove that the State
is liable but the State retains the right to raise all
lawful defenses (Philippine Rock Industries, Inc. v.
Board of Liquidators, 180 SCRA 171 [1989]).
 Even though the rule as to immunity of a state from
suit is relaxed, the power of the courts ends when
the judgment is rendered. Although the liability of
the state has been judicially ascertained, the state
is at liberty to determine for itself whether to pay the
judgment or not, and execution cannot issue on a
judgment against the state. Such statutes do not
authorize a seizure of state property to satisfy
judgments recovered, and only convey an
implication that the legislature will recognize such
judgment as final and make provision for the
satisfaction thereof.
Sayson v. Singson
Once consent is secured, an action may be filed.
There is nothing to prevent the State, however, in
such statutory grant, to require that certain
administrative proceedings be had and be
exhausted. Also, the proper forum in the judicial
hierarchy can be specified if thereafter an appeal
would be taken by the party aggrieved.
CA 327
In all cases involving the settlement of accounts or claims, other
than those of accountable officers, the Auditor General shall act and
decide the same within sixty days, exclusive of Sundays and
holidays, after their presentation.
If said accounts or claims need reference to other persons, office or
offices, or to a party interested, the period aforesaid shall be
counted from the time the last comment necessary to a proper
decision is received by him."
The party aggrieved by the final decision of the Auditor General in
the settlement of an account or claim may, within thirty days from
receipt of the decision, take an appeal in writing: (a) To the
President of the United States, pending the final and complete
withdrawal of her sovereignty over the Philippines, or (b) To the
President of the Philippines, or (c) To the Supreme Court of the
Philippines if the appellant is a private person or entity."
City of Makati v. CA

Where a municipality fails or refuses, without

justifiable reason, to effect payment of a final money
judgment rendered against it, the claimant may avail
of the remedy of mandamus in order to compel the
enactment and approval of the necessary
appropriation ordinance, and the corresponding
disbursement of municipal funds therefor
Nessia v. Fermin
while it is true that Fermin may not be compelled by
mandamus to approve vouchers because they exceeded
the budgetary appropriations, he may, nevertheless, be
held liable for damages under Art. 27 for malicious
inaction because he did not act on the vouchers. This
provision against official inaction finds its ally in Sec. 3,
par. (f), of R.A. 3019, as amended, otherwise known as
the "Anti-Graft and Corrupt Practices Act," which
criminalizes "[n]eglecting or refusing, after due demand
or request, without sufficient justification, to act within a
reasonable time on any matter pending before him for
the purpose of . . . discriminating against any interested
party."
 funds of public corporations which can sue and be
sued were not exempt from garnishment. As
respondent Philippine Virginia Tobacco
Administration is likewise a public corporation
possessed of the same attributes, a similar outcome
is indicated.
Caloocan City v. Allarde

the rule on the immunity of public funds from

seizure or garnishment does not apply where the
funds sought to be levied under execution are
already allocated by law specifically for the
satisfaction of the money judgment against the
government. In such a case, the monetary judgment
may be legally enforced by judicial processes.