Chapter 4 – The Doctrine of State Immunity -USA vs Guinto: acted in the discharge of their official

Constitution – “the State may not be sued without its functions, sought to be held answerable for personal
consent” = recognition of the sovereign character of the torts, US not involved; ???
State -Holy See vs Rosario: SC dismissed civil complaint
against petitioner after the DFA had “officially certified
Basis that the Embassy of the Holy See = duly accredited
-Indiscriminate / random suits against the state = harm diplomatic mission to the RP = exempt from local
against its dignity, challenge to infallibility / being jurisdiction; determination (c/o executive arm of gov’t)
perfect if state or instrumentality is entitled to sovereign or
-Justice Holmes: doctrine of non-suability  practical diplomatic immunity = political question  up to the
ground: no legal right against the authority which courts
makes the law on which the right depends
-Inconvenience  divert time & resources of the State Waiver of Immunity
from more important matters -doctrine of State immunity = “the royal prerogative of
-available to foreign States = principle of the sovereign dishonesty”  does not often avail of rule to take
equality of States (a State cannot assert jurisdiction over undue advantage of parties
another) = “unduly vex the peace of nation”; maxim: -built-in qualification: State may divest itself of its
par in parem non habet imperium sovereign immunity & voluntarily open itself to suit
-State may be sued IF IT GIVES ITS CONSENT
Application
-usual practice: file claims against the officer of the Forms of Consent
government who is supposed to discharge the -expressly or impliedly
responsibility or grant the redress demanded  -express consent = general law or special law
important to determine IF THE STATE IS THE REAL -implied consent = commences litigation or enters into a
PARTY IN INTEREST (direct liability of the State unless its contract
immunity had been previously waived) -Act No. 3083 – general law providing standing consent
-appropriation of public funds = suit against the State of State to be sued; declare the gov’t consents &
-Sanders vs Veridiano (2 American employees of Subic submits to be sued upon any moneyed claim  from
Naval Base against commanding general & director of contract (express or implied) = civil action by private
special services – defamatory remarks)  as officers of parties
the US Gov’t = acted on behalf of gov’t & w/in scope of -CA No. 327 as amended by PD No. 1445 = claim against
authority = suit against government if made to gov’t  Commission on Audit (act upon 60 days);
appropriate funds rejection = SC on certiorari (sue State w/ its consent)
-SC: not against state  Sec. Of National Defense -2nd kind of express consent: special law enacted by
(payment of architect’s professional fees – Philippine Legislature  authorize individual to sue Phil.
appropriation had already been made by gov’t) Gov’t for injuries during motorcycle accident w/ gov’t
-public officer = may be sued in his official capacity w/o ambulance
necessity of first obtaining the consent of the State to -express consent = duly enacted statute, not mere
be sued  duty required by law, restrain him from counsel (Republic vs Purisima)
doing an act alleged to be unconstitutional / illegal, -doctrine of governmental immunity from suit cannot
recover taxes unlawfully assessed or collected serve as an instrument for perpetrating an injustice on a
-recovery only of title or possession of property claimed citizen (Amigable vs Cuenca – property into public
to be held in his official capacity = not against State streets w/o payment of just compensation; reiteration
-TEST: will enforcement require an affirmative act from from Ministerio vs City of Cebu)
the State (appropriation of the needed amount to -Santiago vs Republic: revocation of donation bec of
satisfy the judgment) failure to follow conditions  suit could prosper bec it
-public officer – acts w/o or in excess of jurisdiction  did not involve money claim against the State – return
injury = own personal liability, cannot be imputed to the only, no need to file w/ Commission on Audit first
State -when State itself files complaint, defendant entitled to
-Festejo vs Fernando: Director of Public Works took file a counterclaim  gov’t impliedly allowed itself to
over w/o authority property = irrigation canal  be sued (Froilan vs Pan Oriental Shipping Co.)
recovery was properly filed against the defendant in his
personal capacity
-Phil. Gov’t as successor in interest of US) intervention -non-suability of State  available not only for agency
only for the purpose of resisting claim implied waiver w/ gov’t functions (primary) but also w/ propriety
could be assumed (Lim vs Brownell) (sideline or incidentally)
-gov’t enters into a contract (State descends to level of -Bureau of Printing = execution of all printing and
the ordinary individual) = subject to judicial action & binding + work incidental to process; allowed to
processes undertake private binding jobs but PRIMARY is
-suitability would be follow ONLY IF CONTRACT is governmental
entered into by the gov’t in its PROPRIETARY CAPACITY -Bureau of Customs is part of Department of Finance 
-governmental contracts = not result in implied waiver primary function is governmental although engaged in
of immunity of the State from suit arrastre service
-activities of the State: sovereign & governmental acts
(jure imperii) or private, commercial & proprietary acts Exemption from Legal Requirements
(jure gestionis) -not required to put up a bond for damages or an
-immunity for jure imperii appeal bond
-State’s consent to be sued not = to consent to the -not to pay the legal fees as to Rules of Court
execution of the judgment against it -interest not chargeable except when expressly
-Rule (from RP vs Villasor) = execution will require stipulated
another waiver
-writ of execution = unlawful; postulate from 1935 Suability vs Liability
Constitution -suable is not liable
-limit of claimant’s action = completion of proceedings -waiver of immunity of State does not mean concession
anterior to the stage of execution; power of courts end of its liability
when judgment is rendered; gov’t funds & properties = -suability – express or implies consent of the State to be
not seized through writs of execution & garnishment sued
-Disbursements of public funds = covered by the -liability – determined AFTER hearing on the basis of
corresponding appropriation as required by law  relevant laws & other facts
public service cannot be disrupted by diversion of public -opportunity to prove
funds from legitimate & specific objects -State: responsible for torts only when acts through
-funds of public corporations which can sue & be sued = special agent
not exempt from garnishment -municipal corporations are suable; generally not liable
for torts except when acting in a proprietary capacity
Suits Against Government Agencies
-suits against one of its entities  ascertain whether or
not the State has given its consent to be sued; State is
principal that may ultimately be held liable
-ascertainment will depend if incorporated or
unincorporated
-incorporated agency = has a charter of its own that
invests it with a separate juridical personality (i.e. SSS,
UP, City of Manila)
-unincorporated agency = no separate juridical
personality; merges in general machinery of gov’t (i.e.
Dept. Of Justice, Bureau of Mines, Gov’t Printing Office)
-incorporated  test of suability found in its charter =
suable if charter says so, regardless of functions it is
performing (i.e. Municipal coporations)
-unincorporated agency  no charter to consult; no
separate juridical personality = suit filed against it is
action against Phil. Gov’t  determine the nature of
FUNCTIONS of agency
-suable if proprietary, not suable if governmental 
test = nature of PRIMARY FUNCTIONS being discharged
GR No. 101949 Holy See vs Rosario Dec. 1, 1994  Petitioner invokes privilege of sovereign immunity on
Quiason, J. its own behalf & behalf of official rep (papal nuncio)
 Motion for Intervention by DFA  claim of legal
 Petition for certiorari interest as regards to diplomatic immunity of
 Denied motion to dismiss the complaint petitioiner
 Denied motion for reconsideration  Procedural issue: petition for certiorari can be
 Petitioner = Holy See  exercises sovereignty over availed?  general rule = order denying a motion to
the Vatican City in Rome, Italy dismiss is not reviewable by the appellate courts;
 Represented in the Phil by Papal Nuncio exceptions = very clear that trial court has no
 Private Respondent = Starbright Sales Enterprises, alternative but to dismiss the complaint
Inc.  Other procedural question: personality or legal
 Controversy regarding a parcel of land (Lot 5-A, 6000 interest of the DFA
sq m, registered to petitioner  contiguous to Lot 5-  Public International Law = when state / international
B & Lot 5-C = registered under Philippine Realty agency wished to plead sovereign or diplomatic unity
Corp) in foreign court  request the Foreign Office of the
 Refusal of squatters to vacate  who is in charge? state where it is sued to convey to court that said
Petitioner or respondent? defendant is entitled to immunity
 More complication: Sale of Lot 5-A to Tropicana  US  procedure is “suggestion” = entity requests
Properties and Development Croporation Sec of State to determine if it is entitle to immunity;
 Private respondent: filed complaint w/ RTC  if yes, Attorney General will submit a “suggestion” to
annulment of sale of 3 parcels of land, specific the court that the defendant is entitled to immunity
performance & damages  England  same but Foreign Office issues a
 Complaint: Msgr. Cirilos Jr (on behalf of petitioner & certification to that effect instead of “suggestion”
PRC)  agreed to sell to Ramon Licup 5-a, 5-b & 5-d  Philippines  entity to secure executive
+ earnest money of P100k (sellers clear the lot of endorsement re claim of diplomatic immunity; Sec of
squatters) Foreign Affairs  sends a letter directly to Sec. Of
 Licup assigned rights to private respondent  Labor and Employment, or sending of telegram to
demanded the fulfilment of agreement trial court, US Embassy asks Sec. Of Foreign Affairs to
 Cirilos informed that the squatters would not leave request Solicitor General to make, in behalf of
 proposal to return earnest money & respondent Commander of US Naval Base at Olongapo City, a
to undertake clearing of squatters “suggestion”
 If eviction is to be undertaken, price of land should  Sometimes defense of sovereign immunity is
go lower submitted directly through private counsel
 Cirilos returned P100k & wrote respondent to pay  Burden of petition: respondent trial court has no
back purchase price w/in 7 days jurisdiction over petitioner (foreign state enjoying
 Private respondent sent earnest money back; sovereign immunity)
petitioner & PRC w/o notice sold the lots to  BUT private respondent insists of doctrine of non-
Tropicana  respondent wanted to develop the land suability is not absolute  entered into commercial
into a townhouse = lost P30M profits transaction for sale of land
 Private respondent prayed for: annulment of Deed of  Pope – monarch, Holy See, considered a subject of
Sale, reconveyance of lots, specific performance of International Law  position in International Law =
agreement to sell, damages controversial due to loss of Papal States and
 Petitioner moved to dismiss the complaint for lack of limitation of territory
jurisdiction based on sovereign immunity from suit  1929 – Holy See  Lateran Treaty – Italy recognizes
 Trial court dismissed after finding that petitioner exclusive dominion and sovereign jurisdiction of Holy
“shed off it sovereign immunity by entering into the See over the Vatican City + right of Holy See to
business contract in question” receive & send diplomats to foreign countries +
 Petitioner  moved for reconsideration + motion for enter into treaties
a hearing for the sole purpose of establishing factual  Lateran Treaty – established statehood of Vatican
allegation for claim of immunity as a jurisdictional City  to assure Holy See of absolute & visible
defense independence & guarantee indisputable sovereignty
in the field of international relations; difficult to
 determine whether statehood is vested in the Holy transaction should be tested by its nature (is it in
See or in Vatican City bec of wordings pursuit of sovereign activity)
 Vatican City = entity organized for ecclesiastical  US – deemed to have impliedly waived its non-
purposes & international objects; has its suability only when it enters into contract in its
independent gov’t w/ Pope as head of Roman proprietary or private capacity
Catholic Church (Holy See or Head of State);  Lot 5-A: petitioner claims that acquisition &
international state subsequent disposal was not for profit; acquired for
 Phil – has accorded the Holy See the status of foreign the site of its mission or Apostolic Nunciature in the
sovereign; Holy See through Ambassador Papal Philippines
Nuncio  Lot 5-A  acquired as a donation from Archdiocese
 Section 2 of Article II of the 1987 Constitution – of Manila; for construction of official place of
adopted generally accepted principles of residence of Papal Nuncio; right of foreign sovereign
International Law, even w/o affirmation  to acquire property, real or personal, in a receiving
incorporated as a condition and consequence of our state (for diplomatic mission)  recognized in 1961
admission in the society of nations Vienna Convention on Diplomatic Relations 
 2 conflicting concepts of sovereign immunity: concurred in by the Philippine Senate
classical / absolute theory and newer / restrictive  Article 31(a) of the Convention: diplomatic envoy 
theory immunity from civil & administrative jurisdiction of
 Classical / absolute – sovereign cannot be made a receiving state over any real action relating to
respondent in the courts of another sovereign w/o private immovable property situated in territory of
its consent receiving state (for the purpose of mission)
 Restrictive theory – immunity is recognized only with  Transfer of property, subsequent disposal 
regards to public acts or acts JURE IMPERII, but not governmental character
with private acts of JURE GESTIONIS; intended to be  Papal Nuncio wanted to dispose Lot 5-A because the
a solution re issue of foreign immunity but created squatters living thereon made it impossible for
problems for its own; came about bec of entry of petitioner to use it for the purpose of the donation
sovereign states into purely commercial activities   Immunity of the case – sufficiently established by the
remotely connected w/ discharge of gov’t functions Memorandum and Certification of the DFA; plea of
 States passed legislation to serve as guidelines for immunity recognized & affirmed by the executive
executive or judicial determination when an act is branch  duty of the courts to accept it
jure gestionis  Private respondent is not left without any legal
 Legal treaties & decisions – have difficulty in remedy  person who feels aggrieved by acts of
characterizing a contract of sovereign state w/ foreign sovereign  ask his own gov’t to espouse his
private party (jure gestionis or jure imperii) cause through diplomatic channels = persuade Phil
 SC  jure imperii: (1) lease of apartment buildings gov’t to take up with Holy See the validity of its
by foreign gov’t for use of military officers, (2) public claims but impact on relations should be determined
bidding for repair of wharf, (3) change of  Once gov’t decides to espouse the claim, the latter
employment status of base employees ceases to be a private cause
 Jure gestionis: (1) hiring of a cook for John Hay Air
Station in Baguio City to cater to American GR No. L-1154 Merrit vs Gov’t of Phil. Islands
servicemen & general public, (2) bidding for Trent, J.
operation of barber shop
 Operation of restaurants & other facilities open to  Appeal by both parties
general public = for profit as a commercial & not  Counsel insist that trial court erred: in limiting the
gov’tal activity general damages P5000 instead of P25000 as
 Phil – absence of legislation defining what activities claimed, limiting the time when plaintiff was disabled
and transactions shall be considered “commercial” /  Attorney-General on behalf defendant – court erred:
jure gestionis  come up with own guidelines in finding that the collision between the plaintiff’s
(tentative) motorcycle & the ambulance of General Hospital was
 Mere entering into contract by a foreign state w/ due to the negligence of the chauffeur, in holding the
private party = cannot be ultimate test Gov’t of the Philippines liable for damages sustained,
 Logical question – is foreign state engaged in the in rendering judgment against the defendant for the
activity in the regular course of business? – if not, sum of P14,741
 Fact: General Hospital ambulance, upon reaching  Par 5 of article 1903 of the Civil Code  state is
said avenue, instead of turning toward south, after liable when it acts through a special agent but not
passing the center thereof, so that it would be on the when the damage should have been caused by the
left side of said avenue (as prescribed by the official to whom properly it pertained to do the act
ordinance & Motor Vehicle Act)  TURNED performed
SUDDENLY w/o sounding a whistle or horn   The state is not responsible for the damages suffered
STRUCK THE PLAINTIFF by private individuals in consequence of acts
 Plaintiff – severely injured according to Dr. Saleeby, 1 performed by its employees in the discharge of the
or more fractures of the skull, suffering from functions pertaining to their office  neither fault
depression in the left parietal region + wound in the nor even negligence can be presumed on the part of
same place & back part of head + pulse was so weak the state in organization of branches in public service
 little chance of living and in appointment of its agents
 According to various merchants, plaintiff’s mental &  Reference is made to acts or omission of the persons
physical condition prior to accident was excellent, who directly or indirectly caused the damage
lost 50% efficiency  Responsibility for acts of third persons cease when
 Dissolved partnership w/ engineer persons mentioned in said article prove that they
 Outset  due solely to the negligence of the employed all the diligence of a good father of a
chauffeur family to avoid the damages
 Nothing in record to increase amount of first, but  Responsibility of the state is limited to that which it
found that plaintiff’s services were worth P1000 per contracts through a special agent, duly empowered
month  wholly incapacitated for a period of 6 by a definite order or commission to perform some
months act or charged with some definite purpose which
 Negligence which caused collision = tort committed gives rise to the claim; NOT where claim is based on
by an AGENT or EMPLOYEE of the Government  acts or omissions imputable to a public official
WHETHER GOVERNMENT IS LEGALLY-LIABLE for the charged with some administrative or technical office
damages resulting therefrom imputable to a public official
 Act No. 2457  an act authorizing E. Merrit to bring  Judgment reversed
suit against Gov’t of the Philippine Islands &
authorizing Attorney-General to appear in said suit GR No. L-48214 Santiago vs Gov’t of the Republic of the
 Did defendant simply waive its immunity from suit or Phil
did it also concede its liability to the plaintiff? Fernando, J.
 Consent of Gov’t to be sued – voluntary
 Plaintiff was authorized to bring action in order to:  Petition for certiorari – inherent weakness
fix responsibility for collision & determine amount of considering explicit provision of Constitution
damages prohibiting suit against gov’t
 “We have decided that accident was due solely to  Petitioner Idelfonso Santiago
the negligence of the chauffer”  Defendant government of the Republic of the
 In the US, state is NOT LIABLE for torts committed by Philippines as represented by the Director of the
its officers or agents whom it employs EXCEPT WHEN Bureau of Plant Industry
EXPRESSLY MADE by legislative enactment  Plea: revocation of a deed of donation executed by
 No claim against gov’t by reason of misfeasance, him and his spouse in Jan of 1971 with Bureau of
laches, or unauthorized exercise of powers by Plant Industry as the done
officers or agents (Melvin vs State)  Bureau contrary to terms of donation  failed to
 By consenting to be sued, state simply waives its install lighting facilities and water system on
immunity from suit; does not thereby concede its property donated & to build an office building and
liability to plaintiff or crate any cause of action in his parking lot (ready by Dec. 7, 1974)
favor or extends its liability to any cause not  Lower court  sustained motion to dismiss on the
previously recognized part of the Philippines
 Remove the state’s immunity from suit  gives  Unique aspect of this petition for certiorari – dealing
authority to commence suit for the purpose of with suit for revocation of a donation to the Republic
settling plaintiff’s controversies with the estate  Dismissal = unfairness; right to be heard??
 Rules of practice in civil cases shall apply  Republic cannot be sued without its consent;
especially if it results “in adverse consequences to
 the public treasury, whether in the disbursement of
fund or loss of property”
 Counsel of petitioner: constitutional provision will be
given retroactive application if case of suit for
revocation were dismissed BUT doctrine of non-
suability is recognized even prior to the effectivity of
the 1935 Constitution  untenable
 Santos vs Santos – should have been cautious
(petitioner’s counsel) in citing bec it showed that
constitutional provision of non-suability was
unavailaing in view of the suit being against
government-owned or controlled corp.
 Government-owned and controlled corporation has
a personality of its own distinct and separate from
that of gov’t  may sue & be sued
 Manifestly unfair for Republic as done, alleged to
have violated the conditions under which it received
gratitiously certain property