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Sec. 3, Art. XVI, The State may not be sued without its consent.

It is based on the very essence of sovereignty. It 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

There can be no legal right against the authority which makes the law on which the right depends. However,
it may be sued if it gives consent, whether express or implied.

Does this doctrine apply as well to foreign government?

Yes, because of the sovereign equality of all the state. Immunity is enjoyed by other States, consonant with
the public international law of par in parem non habet imperium. The head of State, who is deemed the
personification of the State, is inviolable, and thus enjoys immunity from suit.

When the government enters into a contract, it is deemed to have descended to the level of the other
contracting party and divested of its sovereign immunity is expressed with more specificity in the RP-US
bases treaty. There is no question that the US, like any other state, will be deemed to have impliedly waived
its non-suability if it has entered into a contract in its proprietary or private capacity. It is only when the
contract involves its sovereign or governmental capacity that no such waiver may be implied.

How may consent be given?

The State’s consent may be given either expressly or impliedly.

Express consent – may be made through enactment by Congress of a general law or special law waiving
the immunity.

General Law –
 Act. No. 3083, where the Philippine government “consents and submits to be sued
upon any money claim involving liability arising from contract, express or implied,
which could serve as a basis of a civil action between the private parties.”
 CA 327 – General Auditing Law, requires that all money claims against the
government must first be filed with COA which must act upon it within 60 days.
Rejection of the claim will authorize the claimant to elevate the matter to SC on
certiorari and, in effect sue the State thereby.

DA may be sued for money claims based on a contract entered into in its governmental capacity, because
the express consent contained in Act 3083 provided that the claim be first brought to the COA in accordance
with CA 327, as amended. [Department of Agriculture vs NRLC]

Suit may lie because the doctrine of State immunity cannot be sued to perpetrate an injustice. [Ministerio
vs City of Cebu]

Public respondents’ belief that the property is public, even if buttressed by statements of other public
officials, is no reason for the unjust taking of the petitioner’s property; after all, the TCT was in the name
of the petitioner. [Delos Santos vs IAC]
Where the questioned transaction dealt with the improvements on the wharves in the naval installation at
Subic bay, SC held that 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 necessary consequence of the principle of
independence and equality of states. However, the rule of International Law are not petrified; they are
constantly developing and evolving.

Acta Jure Imperii – There is no waiver. The State is acting in its sovereign governmental capacity.

Acta Jure Gestionis – There is waiver of State immunity from suit. The State entered into a contract in its
commercial or proprietary capacity. The State descended to the level of a private entity.

RESTRICTIVE Doctrine of State immunity from suit – not all contracts entered into by the government
constitute a waiver.

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. State 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 contracts
relate to the exercise of its sovereign functions. In this case, the projects are integral parts of the naval base
which is devoted to the defense of both US and Philippines, indisputably a function of the government of
the highest order; they are not utilized for nor dedicated to commercial or business purpose.

The contract for the repair of wharves was a contract in jus imperii because the wharves were to be used in
national defense, a governmental function. There is no waiver. Only the American government can waived.
Act 3083 is not applicable. The remedy is to convince the DFA to take up the claim to the US government.

A contract for restaurant services within the Camp John Hay Air Station was held commercial in character.
The case should not be dismissed. The cafeteria caters not only Americans but also the general public.
There is waiver of State immunity from suit. This is a case of acta jure gestionis. [USA vs Guinto]

Even if, in exercising the power of eminent domain, the State exercises a power jus imperii, as distinguished
from its proprietary right of jus gestionis, where property has been taken without just compensation being
paid, the defense of immunity from suit cannot be set up in an action for payment by the owner. [Republic
vs Sandiganbayan]

Special Law – This form of consent must be embodied in a statute and cannot be given by a mere counsel.
e.g. Art 2180 and 2189, NCC

Local government units and their officials are not exempt from liability for death or injury to
persons or damage to property. A man fell in a manhole. Sec. 24 LGC. [Teotico vs City of Manila]

May the OSG validly waived?

A mere lawyer / OSG may not validly waived the immunity from suit of the State. Only Congress can.
[Republic vs Purisima] ---- 299 implied consent

Implied Consent:
- When the State commences the litigation. It becomes vulnerable to counterclaim. Intervention by
the State would constitute commencement of litigation
o EX: when the State intervenes not for the purpose of asking nay affirmative relief, but only
for the purpose of resisting the claim precisely because of immunity from suit. [Lim vs
- When the State enters into a business contact. [USA vs Guinto; USA vs Ruiz]

To sue and be sued. Section 22 (a2), LGC.

Suability vs Liability
Suability – State waiving the immunity
Liability – gives the claimant the opportunity to prove a claim against the State for a possible liability.
- will have to be determined by the court on the basis of evidence and the applicable laws.

When is a suit against a public official deemed to be a suit against the State?
- The doctrine of State immunity from suit applies to complaints filed against public official for acts
done in the performance of their duties within the scope of their authority.
- The rule is that the suit may be regarded as one against the State where the satisfaction of the
judgment against the public official concerned will require the State to perform a positive act, such
as appropriation of the amount necessary to pay the damages awarded to the plaintiff.
o 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.
o Neither does it apply where the public official is clearly being sued not in his official
capacity but in his personal capacity, although the act complained of may have been
committed while he occupies a public postion. [Liansang vs CA]

Instances when a suti against a State is proper:

1. When the Republic is sued by name
2. When the suit is against an unincorporated government agency – inquire into the principal functions
of the agency.
a. If governmental, NO SUIT WITHOUT CONSENT
b. If proprietary, SUIT WILL LIE.
3. When the suit is on its face against a government office but the case is such that ultimate liability
will belong not to the officer but to the government.

The doctrine of State immunity from suit extends only up to rendition of the judgment. When it comes to
execution to satisfy the judgment, it will require another waiver. The remedy is to make the necessary
representation with the lawmaking authority.

Duty to appropriate – discretionary and therefore cannot be compelled by mandamus.

- EX: Where the 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. [Municipal of Makati vs CA]
- An action for the recovery of the value of the property taken by the government and converted into
a public street without payment of just compensation was allowed despite the failure of the property
owner to file his claim with the Auditor General. The government should have followed first its
own rule (it should have filed an expropriation case) before it entered the property. Had it done so,
the suit can be waived. The state opened itself to a possible suit against it.

Scope of Consent: Consent to be sued does not include consent to the execution of judgment against it.
- Such execution will require another waiver, because the power of the court ends when the judgment
is rendered.
- But funds belonging to government corporations, whose charters provide that they can be sued and
be sued, that are deposited with a bank are not exempt from garnishment
o EX: Funds of a municipality are public in character and may not be garnished UNLESS
there is a corresponding appropriation ordinance duly passed by the Sangguniang Bayan.
[Municipality of San Miguel, Bulacan vs Fernandez]
- Funds belonging to government corporations which can sue and be sued that are deposited with a
bank. [PNB vs Pabalan]

Unincorporated Agency
- It has no legal personality separate and distinct from the government. When sued, it is deemed suit
against the State, there is no waiver of State immunity.
- It does not have its own charter like Bureau of Customs, BIR, DA, NBI
- Performs governmental functions; not suable without State consent even if performing proprietary
function incidentally. [Bureau of Printing vs Bureau of Printing Employees Assoc.]
- If performing proprietary functions; suable [Civil Aeronautics Administration vs CA]

Incorporated Agency
- It has a personality separate and distinct from the government
- It has its own charter such as SSS, GSIS, Landbank, DBP
- If its charter provides that it has the right to sue and sued, it is an express consent and it is suable.
[SSS vs CA]
- If its charter is silent, inquire into its functions based on the purpose for which it was created.
[Malong vs PNR]
o Proprietary – if the purpose is to obtain special corporate benefits or earn pecuniary profit,
o Governmental – if it is in the interest of health, safety, and for the advancement of public
good and welfare, affecting the public in general, NOT SUABLE [Balquera vs Alcala]

Rules regarding Payment of Interests by government in Money Judgments against it:

- GR: Government cannot be made to pay interests.
o EX:
1. Eminent domain
2. Erroneous collection of taxes
3. Where government agrees to pay interests pursuant to law
- The supreme and uncontrollable power inherent in a State by which that State is governed.
- It is the right to exercise the functions of a State to the exclusion of any other State.
- While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic
level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations. In its Declaration of Principles and
State Policies, the Constitution adopts the generally accepted principles of international law as part
of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation
and amity, with all nations. But the doctrine of incorporation, the country is bound by generally
accepted principles of international law, which are considered to be automatically part of our own
- Government of Laws and NOT of men
o Sovereignty of the people also includes the concept that government officials have only the
authority given them by law and defined by law, and such authority continues only with
the consent of the people.
- Often referred to as Imperium, is the State’s authority to govern, it includes passing laws governing
a territory, maintaining peace and order over it, and defending it against foreign invasion.
- Dominium is the capacity of the State to own or acquire property such as lands and natural
resources. [Lee Hong Hok vs David, 27 Dec 1972]
- It necessarily includes the power to alienate what is owned. It was the foundation for the early
Spanish decrees embracing the feudal theory of jura regalia that all lands were held from the

Kinds of Sovereignty:
a. Legal – the power to issue final commands
b. Political – the sum total of all the influences which lie behind the law
c. Internal – the supreme power over everything within its territory
d. External – also known as INDEPENDENCE – freedom from external control

a. Permanence
b. Exclusiveness
c. Comprehensive
d. Absoluteness
e. Indivisibility
f. Inalienability
g. Imprescriptibility

Effect of change of Sovereignty: [Macariola vs Asuncion]

 Political laws of the former sovereign are abrogated; UNLESS they are expressly reenacted by the
affirmative act of the new sovereign
 Municipal laws remain in force

Principle of Jus Postliminium

 At the end of the occupation, when the occupant is ousted from the territory, the political laws
which have suspended shall automatically become effective again. [Peralta vs Dir. Of Prisons, 12
Nov 1945]

Effect of Belligerent Occupation –

 There is no change in sovereignty
 the political laws are suspended; EXCEPT treason
 Municipal laws remain in force; UNLESS changed by the belligerent occupant.
Effect of Revolutionary Government
- It is bound by no constitution. However, it did not repudiate the Covenant or Declaration in the
same way it repudiated the Constitution. As the de jure government, the revolutionary government
could not escape responsibility for the State’s good faith compliance with its treaty obligations
under international law. During the interregnum when no constitution or bill of rights existed,
directives and orders issued by government officers did not exceed the authority granted them by
the revolutionary government. The directives or orders should not have also violated the Covenant
or the Declaration. [Republic vs Sandiganbayan, 21 July 2003]


Citizenship vs Nationality
- Citizenship is membership in a political community which is personal and more or less permanent
in character.
- Nationality is membership in any class or form of political community. Thus, nationals may be
citizens or subjects. It does not necessarily include the right or privilege of exercising political and
civil rights.

Modes of acquiring citizenship

1) By Birth
a) Jus sanguinis – by blood
b) Jus soli – by birth
2) By Naturalization
3) By Marriage

The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a child follows the
nationality or citizenship of the parents regardless of the place of his birth, as opposed to the doctrine of jus
soli which determines the nationality or citizenship on the basis of place of birth. [Valles vs COMELEC]

Modes by birth applied in the Philippines

A. Before the adoption of the 1935 Constitution
a. Jus sanguinis. All inhabitants of the islands who were Spanish subjects on 11 April 1899
and residing in the islands who did not declare their intention of preserving Spanish
nationality between said date and 11 October 1900, were declared citizens of the
Philippines [Sec. 4, Phil Bill of 1902, Sec. 2, Jones Law of 1916] and their children born
after 11 April 1899. (en masse Filipinization)
b. Jus Soli. Those declared as Filipino citizens by the courts are recognized as such today, not
because of the application of the jus soli principle, but principally because of the doctrine
of res judicata.
B. After the adoption of 1935 Constitution: only the Jus Sanguinis doctrine; Sec. 1, Art. IV – the
following are citizens of the Philippines:
a. Those who are citizens of the Philippines at the time of the adoption of this constitution, 2
Feb 1987
b. Those whose fathers or mothers are citizens of the Philippines; jus sanguinis
c. Those born BEFORE 17 Jan 1973, of Filipino mothers, who elect Philippine citizenship
upon reaching the age of majority;
d. Those who are naturalized in accordance with law

Natural-born citizens – are those who are citizens of the Philippines from birth without having to perform
any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in
accordance with par. 3, Sec. 1, hereof shall be deemed natural-born citizens. [Sec. 2, Art IV, 1987]

Marriage by Filipino to an alien: “Citizens of the Philippines who marry aliens shall retain their citizenship,
UNLESS by their act or omission they are deemed, under the law, to have renounced it.” [Sec. 4, Art IV]

If born before 17 January 1973, of Filipino mother, the person must elect Philippine citizenship upon
reaching the age of majority. Within REASONABLE TIME = 3 years, EXCEPT when there is justifiable
reason to delay.]

Procedure of election of Philippine citizenship: [Sec. 1, CA 625]

1. Election is expressed in a statement to be signed and sworn to by the party concerned before any
official authorized to administer oaths.
2. Statement to be filed with the nearest Civil Registry accompanied with the Oath of Allegiance to
the Constitution and the Government of the Philippines.

Those whose fathers or mothers are citizens of the Philippines – PROSPECTIVE application, consistent
with the 1973 Constitution.

The right to elect Philippine citizenship is an inchoate right; during his minority, the child is an alien.
[Villahermosa vs Commissioner of Immigration]