The principle enshrined in Section 3, Article XVI of the Constitution that the “State may not be sued without its consent” reflects nothing less than a recognition of the sovereign character of the State and an express affirmation of the unwritten rule effectively insulating it from the jurisdiction of courts. It is based on the very essence of sovereignty. A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends (Department of Agriculture v. NLRC, 227 SCRA 693[1993]).
The principle of state immunity from suit also rests on reasons of public policy—that public service would be hindered, and the public endangered, if the sovereign authority could be subjected to lawsuits at the instance of every citizen and consequently controlled in the uses and dispositions of the means required for the proper administration of the government (Republic v. Sandoval, 220 SCRA 124 [1993]).
The doctrine of sovereign immunity from suit may be invoked by any foreign state when it is sued in the country just as the Philippines may invoke sovereign immunity from suit filed in a foreign country, and except when it waives it, the suit will fail (The Holy See v. Rosario Jr., 228 SCRA 524 [1994]).
The doctrine, which says, “the state may not be sued without its consent” is clear that the State may be sued, with its consent, either expressly or impliedly. Express consent may be made through a general law or a special law. The Philippine government consents, through Republic Act (RA) 3083, to be sued upon any money claim involving liability arising from contract, expressly or implied, which could serve as a basis of civil action between private parties. Implied consent, on the other hand, arises when the State itself commences litigation, thus opening itself to a counterclaim, or when it enters into a contract in its proprietary capacity but not in its sovereign or governmental capacity. In this situation, the government is deemed to have descended to the level of the other contracting party and to have divested itself of its sovereign immunity. When the state itself commences litigation, irrespective of whether or not it is in its proprietary or non-governmental capacity, it waives its immunity from suit (Republic v. Sandiganbayan, 204 SCRA 212 [1991]).
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 only when it enters into a business contract. It does not apply where the contract relates to the exercise of its sovereign functions. In other words, the test is not the conclusion of a contract by the state but by the legal nature of the act. Thus, it has been held that there is no waiver of state immunity where the contract is a necessary incident of its prime government function (Traders Royal Bank v. IAC, 192 SCRA 305 [1990]).
By engaging in a particular business through a governmental agency or corporation, the state divests itself of its sovereign character and makes itself amenable to suit, for in the conduct of such business, there can be no one law for the sovereign and another for the subject, and both should stand upon equally before the law (Philippine National Railways v. IAC, 217 SCRA 401 [1993]).
The doctrine of state immunity from suit is also applicable to complaints filed against officials of the state for acts performed by them in the discharge of their duties. A public officer who is sued in connection with the performance of his duties may properly invoke the doctrine, when the suit is on its face against a government officer but the case is such that ultimate liability will belong not to the officer but to the government. The rule is that if the judgment against such official will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against him, the suit must be regarded as against the state itself although it has not been formally impleaded (United States of America v. Reyes, 219 SCRA 192 [1993]). In short, there can be no execution of judgment against government funds or properties. The claim should be presented for payment with the Commission on Audit.
This rule is, however, subject to exception, such as when the official is sued in his personal or private capacity for acts done with malice or in bad faith, or when the official does unauthorized or illegal acts or goes beyond the scope of his authority, or commits a crime, in which case, the principle of state immunity from suit does not apply and the official concerned may be held personally liable therefor. 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 (Lansang v. CA, 326 SCRA 259 [2000]). For the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice. High position in the government does not confer a license to persecute or recklessly injure another (Shauf v. Court of Appeals, 191 SCRA 713 [1990]). For a public official may be made to account in his personal capacity for acts contrary to law and injurious to the rights of the complainant, because illegal or unauthorized acts of officers are not acts of the state (Begosa v. Phil. Veterans Adm, 32 SCRA 466 [1970]).
Under the foregoing principles and doctrines laid down by law and our Supreme Court, does an aggrieved victim have any legal remedy for the redress of his grievances? Can the family of the victim of a tokhang extrajudicial killing file a case against the police scalawag who pulled the trigger? Can a home-owners association complain against a city mayor for arbitrarily hiking up, without public hearing, property tax by 500 percent? Can a commuter sue the responsible government officials who approved the deal with private parties who provided a malfunctioning and defective MRT system? Can beneficiaries of government low-cost housing sue government officials who approved and accepted substandard and indecent kalapati units unfit for human occupancy? Can the families of victims of the recent tragic accident that claimed the lives of 34 people sue the responsible government officials who failed to repair the gap in the railing of a public highway causing their bus to fall into a ditch? Can we sue erring government officials who approve increases in gasoline prices, electricity, water and other public utilities to the detriment of the public and in favor of private vested interests? Can we send to jail corrupt elective and appointive public officials who steal, cheat, abscond, misappropriate, swindle public funds and divert them for private gain instead of for public good? Can we sue public officials who neglect their duty to protect and defend our territory against usurpation by foreign interests? The answer, of course, is YES. In so doing, we are not suing the State—we will be redressing the wrongs and injustices done to us by corrupt, inept and negligent public officials in their personal and private capacity. Indeed, state immunity is not a shield for acts done in bad faith and with malice. Nor is state immunity a defense against unauthorized and illegal acts and crime.
What about idiots in government? My view is that no penalty is severe enough for the wrong they do to the Filipino people. There ought to be a law perpetually disqualifying them from public office!
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This is helpful and comprehensive. I am currently reviewing for our Constitutional Law 1st exam.