July 3 2013 Consitution I Atty Royvenne Jumao-as

Doctrine of Immunity of suit restrictively applies only to Governmental function (Jure imperii) of the state and not to the commercial/proprietary (Jure gestionis) acts of the state. Now we determine whether the suit against the state, we have to now whether or not the ultimate lia!ility falls with the state. "nd that the state is re#uired to perform some positive acts such as appropriating money to satisfy a $udgement against it. %o If it&s the case, it is a suit against the state notwithstanding the nominal party would !e a government office, agency, instrumentality or a pu!lic officer. %o when it comes to government offices it is important to now whether the government instrumentality/ agency is incorporated or unincorporated.

Government instrumentality ' Incorporated' has its own charter which means that it has its own $uridical personality separate and distinct from the state. In that case generally it can !e sued !ecause generally its charter would provide that it can sue and it can !e sued.

Now when it comes to pu!lic officers when would you now if it is a suit against the state( If the ultimate lia!ility is with the state to perform positive act. Now generally also when it comes to suits against pu!lic officers that will usually !e allowed. why( )ecause even the constitution provides that pu!lic office is a pu!lic trust so how can we ma e the officers lia!le or accounta!le it is the * +hrough the filing of suits so suits against pu!lic officers will !e allowed !ecause even the constitution provides for a $udicial dealing of the acts of the officer. %o generally it is not a suit against the state if he is sued in his official capacity or performing a governmental function !ut the suit or the relieve demanded does not re#uire the state to perform an act. ,or e-ample the suit is only for the officer to !e removed from a certain place then there is no lia!ility from the state, then it is not a suit against the state. ,or e-ample the suit is for a money claim !ut the money is already released in the office of the pu!lic officer !ut he $ust refused to pay or refused to release the money then in that case it is not a suit against the state, it is a suit against the pu!lic officer. It is also not a suit against the state if the pu!lic officer is sued in his official capacity !ut for his acts that are called un authorized acts or illegal acts !ecause the state does not state recogni.ed illegal ----( "cts !y his agents for e-ample in the case of /. D ! vs "! pharma #ealth' the relief demanded is in$unction, nullity of contract, and there0s also for damages. +he damage is a addressed against the pu!lic officers. In that case, the 1ndersecretary of D23. %o can that pu!lic officer invo e state Immunity(

$C held4 N2 she is !eing sued in her capacity,in the performance of his function, !ut she performed an unauthori.ed act. In this case she failed to act on her in#uest for an accreditation on registry or product so that product can !e included in the !idding process.

+he relief demanded is not one re#uiring the state to perform an act, it is one for nullification of an award or in$unction of the award so in this case it is not a suit the state !ut a suit against the particular pu!lic officer

5. "hilippine Agila vs %ichauco. +his is against 6ichauco. In this case 7"%I has already !een allotted an or!ital slot, !ut then this undersecretary 6ichauco awarded it to the un nown !idder. + he same or!ital slot. Now nullification and in$unction was filed, can 6ichauco claim immunity from suit( $C !&%D ' No. It is a suit against her !eing a pu!lic officer for an un'authori.ed act. 2ther than that if It is a suit against D2+8 it will not --- !ecause D2+8 is an incorporated it is performing governmental function. now it&s a suit against her !ut the act complained of is considered unauthori.ed or illegal so it is not a suit against the state.

Now let us say it&s a suit against the state, if it&s a suit against the state, can the state claim immunity( General rule4 9es +he state may not !e sued without its consent. In other words a state :"9 !e sued provided that it consented the suit. Now !ased on this premise it is important for us to eep in our mind the restrictive doctrine. We always go !ac to whether it is a governmental function we are dealing with or proprietary , !usiness , !usiness in character, commercial in character. %o if its governmental the general rule applies it may not !e sued without its consent . )ut if it is proprietary no consent is needed, !ecause the other rule will apply, it may !e sued, why( 8onsent may !e ;-press or implied.

8onsent4

/. &(press consent' it is --- that the state consented. 3ow will you now that the state has consented( "n e-press consent is given via a law. 2nly the congress has the authority to consent for the %tate. +he consent is given pursuant to an enactment or a law, in other words if the consent is given !y a lawyer or a counsel for the state it is not !inding upon the state !ecause only a law granting the privilege of the state can !e considered as e-press consent to the state. Now e-press consent pursuant to a law may !e !y virtue of general law or a special law. <hat do you mean !y that( "re you saying ma&am that we have now in e-istence the general law which allows a citi.en to sue the state( "nswer4 9;%. "ct =>?=' an act defining the condition under which the government of the 7hilippines Islands may !e sued. +hat law had !een enacted long time ago in /@/5.

+here is a general consent for the state or the 73 government to !e sued. In fact in section / states the 7hilippine government consents and su!mits to !e sued upon any money claims involving lia!ility arising from contract e-pressly implied which would serve the !asis of civil action !etween private parties. %o, how come there is a constitution provision that it may !e sued without consent( +he consent in this 6aw actually is not without conditions. It consents to !e sued provided that the claimant follows certain procedure. In this case, the procedure prescri!ed is a claim must first !e filed with 8ommission on "udit. %o money claims must !e first !e filed with 82". Now in relation to commonwealth "ct =5A, 8" =5A was amended !y 7D /BBC. +here is a particular period within which the commissioner must act on money claims. +hereafter if the decision is adverse to the claimant or the 82" fails to act in the prescri!ed period then claimant can file a certiorari case with the %upreme 8ourt. In other words ultimately it consents to !e ultimately sued after these procedures and the claimant is not satisfied. +his is "ct =>?= in relation to 8" =5A as amended 7D /BBC

=>?=' General law which consents, grants the consent for the state to !e sued. +he proceedings provided in relation to 8" =5A' period provisional period to act. 7D D law organi.ing the 82"

&(press consent via general la#

=. Department o) Agriculture v *%RC- there is a suit filed !y %ecurity guards against its security agency for non payment of wages, overtime pay, holiday pay, service incentives.+hey were serving with the Department of "griculture. +he N6E8 decided in favour of the %ecurity Guards !ecause these are statutory !enefits. +hese !enefits are mandated !y law particularly the la!or code. )ut the decision of N6E8 included D2" as the party solidarily lia!le with the security agency. %o there is a money $udgement in favour of the security guards, so the security guards filed for the e-ecution of this $udgement. Now N6E8 issued the writ of e-ecution against the security agency and also against Department of "griculture. D" refused to pay invo ing immunity from suit. )efore the ultimate decision the %8 discussed immunity from suit and mentioned 8" =>?= in relation to act =5A and 7D /BBC. $C said that money claims must !e first filed against the government under 8" act, stating 8" =>?= stands now merely as a general law waiving the state&s immunity from suit su!$ect to the general limitation e-pressed sec A thereof.

+hat&s the general law waiving immunity .Is there&s a special law waiving immunity(

&(press consent via special la#

%pecial law' congress acts a law specifically allowing a particular person to file a case against the state.

B. +eritt vs ,overnment' :eritt met an accident !y an am!ulance of a Government hospital. 3e is fortunate !ecause the legislature enacted a law authori.ing meritt to file a suit to state for the determination of who is lia!le. +he congress enacts this law allowing this particular person to file the suit. %8 held4 the fact the state consented to !e sued does mean that the state ac nowledges its lia!ility. )ased on the definition on who is an agent of the state, in this case the driver of the am!ulance is not acting in his authori.ed capacity. +herefore he is not in that instant considered as an agent of the state, thus the state is not lia!le.

Implied consent

Impliedly the state has consented to !e sued.

Instances4

/. <hen the state enters into a contract 5.<hen the state initiates a case/claim against another

In these 5 instances the state is said to have descended to the level of an ordinary citi.ens and opens itself to, for e-ample in a contract, to stipulation or agreement !etween the parties. "nd in initiation of case, it open itself up to possi!le counterclaims and defenses of the other party. +herefore it has impliedly consented !eing sued. Now in the matter in entering to contract, ta e not again that since we adhere to the restrictive doctrineF not all inds of contracts would operate as waiving of immunity. 2nly contracts that are proprietary in nature, commercial would !e an implied consent or would operate the waiver of immunity. Now, when it commences litigation, the state also impliedly consents to !e sued !ecause as held in

C.,roilan vs -- oriental shipping the government impliedly allowed itself to !e sued when it filed a complaint in intervention for the purpose of asserting a claim, such as recovery of the vessel and it opens itself to possi!le defense of counterclaim of other party.

C. Repu-lic vs $andigan-ayan D +he repu!lic of the 73 initiated a complaint against Negros 2ccidental golf country 8lu! incorporated for the reconveyance of certain shares of stoc s !elonging to Juan )enedicto. Now the repu!lic alleges that these shares of stoc s are ill gotten wealth. +herefore they are se#uestering the shares of stoc s. %o the shares of stoc s were turned over to the state. "fter, the state failed to pay the monthly/regular mem!ersip fees that is demanded or re#uired of mem!ers of that country clu! !ecause a shareholder is a mem!er and re#uired to pay mem!ership fees. +he government leave se#uestration, dili na lang siya ill gotten wealth. %o the conse#uence is that they have to return the shares of stoc . )ut in this case the state failed or refuse to return shares of stoc s that is why %andigan!ayan issued an order re#uiring the state to return the shares of stoc s if not the stoc certificate themselves the value e#uivalent to stoc s certificate. Now the state claim immunity from suit

$C !eld' <hen it initiated the complaint invo ing the shares of stoc s the state opens itself to all possi!le defenses and counterclaims and even to the orders of the court in relation to this shares of stoc s, therefore it has impliedly consented itself to !e sued and it cannot claim immunity from suit.

6et&s say that the agency is not performing propriety function and that the government officials are performing in their function, are there instances wherein notwithstanding all this elements present favora!le to immunity, the immunity is not availa!le( Jurisprudence would point to certain circumstance. ,or e-ample this doctrine of immunity from suit cannot !e claim or cannot serve as an instrument for perpetrating a in$ustice to citi.en. 8annot !e used as an instrument to perpetrate in$ustice against another

G. &pg construction vs .igilar/secretary o) dp#h) D in this case ;7G constructions along with other !uilders and suppliers initially entered into a contract with D7<3 to !uild houses in relation to the latter&s pro$ect. Now the contract is only up to a certain phase, 5/= of the pro$ect completion. Now after that the contract ends, after that there is yet no appropriation for the completion of the contract. )ut the undersecretary of D7<3 at that time made assurances with the !idders to the contractors/constructors that the money would !e forthcoming and it will !e appropriated, so,even without the needed contract and nowing that there&s no appropriation they completed the pro$ect. Now after completing the pro$ect the houses were !uilt they now filed a claim for the payment of the service of wor done. D7<3, the secretary, refused to pay.

Now the first #uestion is the D7<3 immune from suit( 9es. It is an unincorporated government office. It is a department !y itself, so it is immune from suit. Is it performing a governmental function( In this case providing for housing, in our review of acc)a vs cugcco the %upreme 8ourt said that housing could !e considered now as a governmental function so it&s a governmental function, it is an unincorporated government agency. )ut the %upreme 8ourt in this case said that it is not immune from suit. +he %upreme 8ourt said that immunity in this case cannot !e used to perpetrate in$ustice to the constructors and !uilders. <hy( 9ou&ve read the case of tesda vs provi0

tesda is also an unincorporated agency attached to Department of 6a!or. +;%D" trains citi.ens, issues credits, s ills, in relation to the training it issues certifications of -- and IDs so it contracted with 7E2HI, the latter will provide hi'tech IDs. Now in the case unfortunately +;%D" failed to pay 7E2HI, 7E2HI filed money claims to +;%D". $C !&%D4 +;%D" is immune from suit. <hy( Notwithstanding that it entered a contract with 7E2HI it is not in relation to a proprietary act or function. It is in relation to its governmental function of training, s ills, accreditation s ills. In that case +;%D", an unincorporated agency is immune from suit and the %8 defeated the claim of 7E2HI.

Now let&s go to D7<3, ;7G construction vs D7<3, the same an unincorporated government office performing government function, this time the %upreme 8ourt said that it is not immuned from suit, !ecause the doctrine of Non'%ua!ility cannot !e used in order to perpetrate in$ustice against the citi.en. <hat&s the different with this case with +;%D"( ;ven in$ustice was also committed against 7E2HI, so what&s fortunate is that the circumstances in D7<3 case all point to grave in$ustice against the constructors. <hy( In this case they have a contract and they have no intention to continue with the contract !ecause they now their limits !ut they continued nonetheless up to its completion without the !enefit of written contract, without the !enefit of appropriation !ecause of the ver!al assurances of the D7<3 1ndersecretary. Not only that, they made the demand with the D7<3 upon the recommendation of a D7<3 undersecretary. 2ther than that, the internal auditor of D7<3 imposed no o!$ection to the payment of this money claims and more than that, Department of )udget and :anagement has already allotted the money that they demanded and has actually released it to D7<3, only that ultimately the %ecretary refuse to release it to the payees or to the constructors and !uilders. Now the %8 said that for several years the houses were already completed the government has already !enefitted from it and not the only the government !ut also the citi.ens who are !eneficiaries of this pro$ects. %o if they, the %8, will defeat the claim if there&s already money paya!le they are !eing used as instruments to perpetrate in$ustice against the service provider. %o that&s the difference !etween HIGI6"E vs D7<3 and tesda vs provi. "lthough it is generally immune, the %upreme 8ourt actually use the invisi!ility cloa . +he state cannot hide !ehind or under the invisi!ility cloa of immunity. %o in this case we have to -- the inivis!ility cloa in order to prevent the perpetration of in$ustice against ;7H construction.

"nother instance when although immune from the suit, the doctrine of non sua!ility of immunity will not !e applied is when the government ta es private property for pu!lic use which demands payment of $ust compensation. Is this familiar to you( +a ing of 7rivate property for pu!lic use, !ecause in this case it is e#ually demanded that the payment of $ust compensation. +his is the e-ercise of the government of eminent domain or e-propriation. Now it is in fact the constitution under the !ill of rights which provided for the mandate that private property cannot !e ta en for pu!lic use or the payment of $ust compensation. %o ung government agent a !a, department a !a, instrumental a !a, G288, or pu!lic corporation in the e-ercise of his power , you open yourself up to suits. +he state is not immune from suit. <hy( )ecause it is a right, a !ill of right, a constitutional right.

A. A1 vs $pouses Ramos D %pouses Eamos who has a lot near the airport runway later discovered that part of the runway actually is their property. +hey had no idea that the government used the portion of their property. %o they made a demand with "+2 ("ir +ransportation 2ffice). %o they negotiated with the "+2 which is the office of the agency in charge with the administration management of airport so the "+2 agree to the negotiation and agreed to enter to a deed of sale for the portion of lot. <hat&s the pro!lem( "+2 later refused or failed to pay the amount as stipulated in the contract, so the spouses filed for a money claim. Now what they did, "+2 invo ed immunity. %o the ultimate #uestion the issue for resolution in this case whether or not the"+2 is immuned in suit. %o what is the action !ased on our discussions( )ased on the nature of the function of "+2. Is it performing a governmental function( $C !&%D4 "+2 here is an incorporated government agency performing a proprietary function. +he management and administration of airports is a !usiness endeavour of the state and the management of airport is not the e-clusive prerogative of the state. In fact it can give it up to private entities, puwede mag manage ng airport. %o this is a propriety function. )ut more than the nature of the function of "+2 even if govt function yan, the immunity will not apply why( It is not availa!le why( In ta ing a portion of a private property for pu!lic use "+2 is e-ercising power eminent domain. In the first place this should not have !een done without undergoing the e-propriation proceedings, !ut since the runway has already !een !uilt it is an o!ligation, the "+2 is under o!ligation to pay $ust compensation to the private owner. +herefore a suit is always allowed2 $o in this case ta3ing o) property a suit is al#ays availa-le2 In fact the discussion of %upreme 8ourt says even if, the %tate !uilt a road in its governmental function, the immunity cannot !e claimed !ecause this is the e-ercise of the power of eminent domain which is under the !ill of rights is a constitutional right.

Now, there is consent to !e sued there are law, general law, special law, e-press consent, implied consent. 2 ay, let&s go suing. 6et&s say that there&s a money $udgement in your favour, can you not as the court to issue an order re#uiring the state to pay the money $udgement. In legal terms it is called a writ of e-ecution, can you now re#uire or as the court to issue a writ of e-ecution, and if the court issues the writ of e-ecution, is it proper.

%8 3;6D4 N2. sua-ility is di))erent )rom lia-ility in fact you have this case of4

?. Repu-lic vs !idalgo- when the $udge issued the writ of e-ecution, e-ecuting the properties of the %tate, to satisfy the $udgement, the $udge was administratively sanctioned, for gross ignorance of law. <hy can&t we garnish the account of the state( +he general idea is that when you have a $udgement in your favour and the other party refuses to pay the easy route is to as for a writ of garnishment, what is that( +he court will order the !an where the party has an account for the !an to release money in your favour. 8an it !e done with the government( <rit of garnishment ang tawag niyan 1he $C !&%D' N2. <hy( 1nder our constitution also, pu!lic funds cannot !e used unless there is an appropriation for that purpose. <hen you say appropriation there

has to !e a law appropriating the use of this pu!lic funds. In other words, you cannot $ust ta e money from the pu!lic treasury and use it in payment of $udgement(() !ecause we have an appropriation act where the money were appropriated for certain purposes, now you cannot ta e some of the money to answer the money $udgment in your favour !ecause these were not set aside for that particular purpose. If it is done !y pu!lic officer that is called malversation, the use of pu!lic funds not in that particular purpose, redirecting the pu!lic fund appropriated for some other purpose in other words pu!lic funds can only !e released pursuant to appropriation. +herefore a $udge cannot issue a writ of e-ecution in your favour even if it is already determined that the %tate is lia!le !ecause is not the $udge who issues the appropriation, it is the legislative !ody. %o in other words sua!ility is not the same as lia!ility. %o the function of the $udge/court ends when the $udgement is rendered, and as the government funds and properties may not !e ceased under writ of e-ecution/garnishment to satisfy such $udgment. It is !ased also in pu!lic policy dis!ursement of funds must !e covered !y the correspondent appropriation as re#uired !y law otherwise it is diversion of pu!lic funds. In D2" vs N6E8 involving those security guards, di!a they have a money $udgement in their favour !ecause it was proven that they were not given statutory !enefits under the la!or code, !ut the D2" claimed immunity from suit what is there recourse therefore( "ct =>?= '',ile their money claims with 82" thereafter file a certiorari. In case of

@. !eirs o) "idacan vs A1 - this is also an e-propriation proceeding which grant for an award.(() there&s a final and e-ecutionary $udgement of the court (%8 even)in favour of the private owners, in this case, so we say the writ of e-ecution cannot !e issued against the state, !ut in this case that the garnishment issued !y the Judge is proper, why( )ecause in this case it has !een shown that the funds had already !een appropriated for the payment of the particular e-propriation. %o the funds have actually !een appropriated for that purpose so garnishment is allowed.

/>. *!A vs heirs o) rigodon/4)' here the N3" also e-ercised its power of e-propriation to !uild housing. Now they failed to pay the $ust compensation as ordered !y the 8ourt. 8an the funds of the N3" can !e garnished to satisfy the $udgement( +he $C held4 9;% why( N3" is an incorporated government agency. Iit is a pu!lic corporation and has a personality separate and distinct from the state. It has funds separate from the funds of the state therefore this particular fund can !e garnished.

$uits agains %ocal ,overnment 5nits

Now municipal corporations, provinces, cities, municipalities, these are created pursuant to law, they have a charter on their own. Now the charter provides that they have the capacity to

!e sued and sue. ;ven under the 6ocal government code there&s a provision that 6G1 are pu!lic corporations and such corporations they have the capacity to sue and !e sued. Does that mean that 6G1, cities, provinces, municipalities are ipso facto or automatically are not immune from suit( Is there already an implied or an e-press consent to !e sued( 1he $C !&%D4 N2, even if pu!lic corporations such as 6G1 have in their charters this general characteristic of corporation of the right to !e sued and !e sued, it does not mean that they are not immune from suit !ecause it is still an agency of state. It is still a government agency although in municipal level and is performing governmental function. 1ltimately we still have to determine if it is a governmental or propriety function. ;-ample4

//. Jaime vs Apostol' suit !y the parents of a minor who was illed in a vehicular accident. +he car was privately owned, it was driven !y the employee of the :unicipality of Ioronadal and the passenger was the mayor, the driver is driving him to airport. %o the parents sued the driver, mayor, municipality and the registered owner of the car and the possessor of the vehicle. +he ultimate decision4 only driver and the registered owner is lia!le. <hy not the mayor and the municipality of oronadal( +he mayor is not lia!le !ecause he is not the employer of the driver. <ho is the employee of the driver( +he municipality. +he driver is assigned to the office of mayor. Di!a with the negligent acts of the employees the employer is lia!le. )ut in this case the

$C held4 N2. +he municipality is a pu!lic corporation it has immunity from suit and specifically It is immune from torts. ;specially if the negligent acts were performed in governmental capacity or functions in relation to govt functions. It was shown here that the driver was driving the car not pursuant to a commercial activity !ut in pursuance to the function of the 6G1 as a government agency. /5. +unicipality vs Dumdum' a !usiness woman entered into a contract to municipality of 3agonoy )ulacan provided thereafter with several heavy e#uipment, tractor etc. %he has already delivered the e#uipment to the municipality. )ut, the municipality refused to pay. "ccording to them there is no contract, it does not underwent proceedings for deeds and awards so it refused to pay. %o the !usiness woman filed a money claim against the municipality. now while !eing her right was determined she as ed for preliminary attachment (pending pa ang trial). It means she is as ing the court to attach the property, hold it, in the meantime that her rights is !eing determined in the trial. In other words !y virtue of the writ of attachment, the government or the municipality cannot sell, dispose, hide the property. so that incase of the favora!le to the !usinesswoman the property is availa!le. Judge issued the writ. Is it proper( +he municipality claimed immunity from suit. "nd the $C !&%D4 :unicipality is immune from suit notwithstanding the charter says it can sued and !e sued. It is li e a state in general which has immunity from suit. +he court says that the preliminary attachment is useless why( In case of favoura!le $udgement in favour of the !usiness woman its useless, !ecause the property of the municipality cannot !e attached or e-ecuted to satisfy the $udgment. "gain there has to !e appropriation of pu!lic funds.

,eneral rule ' %ocal government units have the same immunity #ith the state2 6e go -ac3 to to determining #hether or not it is per)orming a governmental )unction or proprietary )unction2 It is incorporated !y the way so the general rule applies with 6G1

/=. +a3ati vs CA' /@> %8E" 5>G. +his is a case for its e-propriation filed !y the municipality. +here is a $udgment in favour of the private owner, !ut the municipality refused to pay $ust compensation. $C held4 there is recourse availa!le to the private owner. It can file a petition/case for mandamus so that the court upon $udgment may direct the local %anggunian to appropriate and act an ordinance to appropriate +3; sum of money to satisfy the $udgment. In this case the private party can file a suit for mandamus. )ut ta e note that the recourse or option here is only availa!le to local legislative !odies.