What is the constitutional basis of state immunity from suit?

The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability of the State, is expressly provided in Article XVI of the 1987 Constitution, viz:

Section 3. The State may not be sued without its consent. 

(Air Transportation Office vs. Sps. Ramos, G.R. No. 159402, February 23, 2011)

What is the basis of the doctrine of State immunity from suit?

● The immunity from suit is based on the political truism that the State, as a sovereign, can do no wrong. Moreover, as the eminent Justice Holmes said: "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."

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. Several justifications have been offered to support the adoption of the doctrine in the Philippines, but that offered in Providence Washington Insurance Co. v. Republic of the Philippines is “the most acceptable explanation,” according to Father Bernas, a recognized commentator on Constitutional Law, to wit:

[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. (Air Transportation Office vs. Sps. Ramos, G.R. No. 159402, February 23, 2011)

● The basic postulate enshrined in the Constitution that “[t]he 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.  As has been aptly observed by Justice Holmes, 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.  True, the doctrine, not too infrequently, is derisively called “the royal prerogative of dishonesty” because it grants the state the prerogative to defeat any legitimate claim against it by simply invoking its non-suability.  We have had occasion to explain in its defense, however, that a continued adherence to the doctrine of non-suability cannot be deplored, for the loss of governmental efficiency and the obstacle to the performance of its multifarious functions would be far greater in severity than the inconvenience that may be caused private parties, if such fundamental principle is to be abandoned and the availability of judicial remedy is not to be accordingly restricted. (Department of Agriculture v. NLRC, G.R. No. 104269, Nov. 11, 1993, 227 SCRA 693)

Is the rule that the State may not be sued absolute?

The rule, in any case, is not really absolute for it does not say that the state may not be sued under any circumstances. On the contrary, as correctly phrased, the doctrine only conveys, "the state may not be sued without its consent;" its clear import then is that the State may at times be sued. (Department of Agriculture v. NLRC, G.R. No. 104269, Nov. 11, 1993, 227 SCRA 693)

How may consent of the State to be sued given?

● The States' consent may be given expressly or impliedly. 

Express consent may be made through a general law or a special law. In this jurisdiction, the general law waiving the immunity of the state from suit is found in Act No. 3083, where the Philippine government "consents and submits to be sued upon any money claims involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties." 

Implied consent, on the other hand, is conceded when the State itself commences litigation, thus opening itself to a counterclaim or when it enters into a contract. 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. However, not all contracts entered into by the government operate as a waiver of its non-suability; distinction must still be made between one which is executed in the exercise of its sovereign function and another which is done in its proprietary capacity. 

In the Unites States of America vs. Ruiz, where the questioned transaction dealt with improvements on the wharves in the naval installation at Subic Bay, we held:

The traditional rule of 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. And 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 act ( jure gestionisis). 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.

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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 this be deemed to have actually given its consent to be sued only when it enters into business contracts. It does not apply where the contracts 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 not dedicated to commercial or business purposes. (Department of Agriculture v. NLRC, G.R. No. 104269, Nov. 11, 1993, 227 SCRA 693)

NOTE:

● Express consent is effected only by the will of the legislature through the medium of a duly enacted statute. (USA vs. Guinto, G.R. No. 76607, February 26, 1990)

● Another general law waiving the immunity of the state from suit is Art. 2180 or Ar. 2189 of the Civil Code.

● As for the filing of a complaint by the government, suability will result only where the government is claiming affirmative relief from the defendant. (Lim vs. Brownell, G.R. No. L-8587, March 24, 1960)

May the Government validly invoke the doctrine of State Immunity from suit if its invocation will serve as an instrument for perpetrating an injustice on a citizen?

No. The doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen. Ministerio vs. CFI of Cebu, G.R. No. L-31635, August 31, 1971, 40 SCRA 464 

In EPG Construction vs. Vigilar, G.R. No. 131544, March 16, 20013, 54 SCRA 566, the SC held that as the staunch guardian of the citizen's rights and and welfare, it cannot sanction an injustice so patent on its face, and allow itself to be an instrument in the perpetration thereof. Justice and equity sternly demand that the States cloak of invincibility against suit be shred in this particular instance, and that petitioners contractors be duly compensated on the basis of quantum meruit for construction done on the public works housing project.