Article Xvi General Provisions 2q4p5y

Article XVI GENERAL PROVISIONS

Flag

The design of our flag may be changed only by constitutional amendment.

DOCTRINE OF STATE IMMUNITY FROM SUIT

Sec. 3, Article XVI 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 non-suability.

There can be no legal right against the authority which makes the law on which the right depends (Republic vs. Villasor, 54 SCRA 83). 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 principle 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.

®USA vs. Guinto, 182 SCRA 644 Fabian Genove filed a complaint for damages against petitioners Lamachia, Belsa, Cartalla and Orascion for his dismissal as cook in the US Air Force Recreation Center at Camp John Hay Air Station in Baguio City. It had been ascertained after investigation, from the testimony of Belsa, Cartalla and Orascion that Genove had poured urine into the soup stock used in cooking the vegetables served to the club customers. Lamachia, as club manager, suspended him and thereafter referred the case to a board of arbitrators conformably to the collective bargaining agreement between the center and its employees. The board unanimously found him guilty and recommended his dismissal. Genove’s reaction was to file his complaint against the individual petitioners.

SC: The rule that a State may not be sued without its consent is one of the generally accepted principles of international law that we have adopted as part of our law. Even without such affirmation, we would still be bound by the generally accepted principles of international law under the doctrine of incorporation. Under this doctrine, as accepted by the majority of states, such principles are deemed incorporated in the law of every civilized state as a condition and consequence of its hip in the society of nations. All states are sovereign equals and cannot assert jurisdiction over one another.

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.

Q: How may consent be given? A: 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 e.g. 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”. (correlate Act 3083 with CA 327 as amended by PD 1445)

Commonwealth Act 327 (General Auditing Law, as amended by PD 1445,

requires that all money claims against the government must first be filed with the 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.

Department of Agriculture vs. NLRC, 227 SCRA 693

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

Ministerio vs. City of Cebu, 40 SCRA 464

Suit may lie because the doctrine of State immunity cannot be used to perpetrate an injustice.

Delos Santos vs. IAC, 223 SCRA 11 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.

USA vs. Ruiz, 136 SCRA 487 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 a necessary consequence of the principle of independence and equality of states. However, the rules of International Law are not petrified; they are constantly developing and evolving.

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. Stated 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 purposes.

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 Department of Foreign Affairs to take up the claim to the US government (state to state).

USA vs. Guinto, 182 SCRA 644 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.

Republic vs. Sandiganbayan, 204 SCRA 212

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.

Special Law

This form of consent must be embodied in a statute and cannot be given by amere counsel. e.g. Articles 2180 and 2189 of the Civil Code

Article 2180 of the Civil Code

(paragraph 6) The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable.

Article 2189

Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control and supervision.

Teotico vs. City of Manila

a man fell in a manhole. Sec. 24, Local Government Code: “Local government units and their officials are not exempt from liability for death or injury to persons or damage to property.”

Q. May the OSG validly waived? A.Republic vs. Purisima, 78 SCRA 470, a mere lawyer (OSG) may not validly waived the immunity from suit of the State. Only Congress can.

IMPLIED CONSENT

1. When the State commences the litigation. It becomes vulnerable to a counterclaim. Intervention by the State would constitute commencement of litigation EXCEPT: when the State intervenes not for the purpose of asking for any affirmative relief, but only for the purpose of resisting the claim precisely because of immunity from suit. (Lim vs. Brownell, 107 Phil 345) 2. When the State enters into a business contract. (See USA vs. Guinto & USA vs. Ruiz) (This is the RESTRICTIVE DOCTRINE OF STATE IMMUNITY)

Mun. of San Fernando, La Union vs. Judge Firme,195 SCRA 692 the dump truck, owned by the municipality, was driven by its official driver. It was used for hauling gravel for the repair/construction of the municipal road. The truck collided with a jeepney. The heirs of the jeepney driver sued the Municipality of San Fernando, La Union. The SC held that municipal corporations are agencies of the State when they are engaged in governmental functions. Repair of municipal road is a governmental function. Therefore, should enjoy the immunity from suit. However, they are subject to suit even in the performance of such functions because their respective charters provide that they can sue and be sued.

Sec. 22 (a2) of the Local Government CodeTo sue and be sued;

Q. When is a suit against a public official deemed to be a suit against the State? A. The doctrine of State Immunity from suit applies to complaints filed against public officials for acts done in the performance of their duties within the scope of their authority. The rule is that the suit must 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.

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. Neither does it apply where the public official is clearly being sued not in his official capacity but in his personal capacity, although the acts complained of may have been committed while he occupied a public position. (Llansang vs. CA, Feb. 23, 2000) In this case, petitioner was sued for allegedly “personal motives” in ordering the ejectment of the general Assembly of the Blinds, Inc. (GABI) from the Rizal Park; thus, the case was not deemed a suit against the state.

Larkins vs. NLRC, 241 SCRA 598

private respondents were dismissed from their employment by Lt. Col. Frankha acting for and in behalf of the US government which, by right of sovereign power, operated and maintained the dormitories at the Clark Airbase for USAF .

Instances when a suit 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 officer but the case is such that ultimate liability will belong not to the officer but to the government.

Republic vs. Sandoval, 220 SCRA 124

this is not a suit against the state with its consent. Even as the SC dismissed the suit against the RP, the action for the damages against the military personnel and the policemen responsible for the 1989 Mendiola Massacre was upheld inasmuch as the initial findings of the Davide Commission showed that there was, at least, negligence on their part when they fired their guns. They exceeded their authority. The military personnel and the policemen were held to be liable in their individual capacity.

*hauling lumber for the repair of the public market—business enterprise of the government (local government) *celebration of town fiesta—Torio vs. Fontanilla—not a governmental function but a proprietary function

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. However, in Mun. of Makati vs. CA, 190 SCRA 206, where the municipality fails or refuses, without justifiable reasons, 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.

Amigable vs. Cuenca, 43 SCRA 360

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. a.

Such execution will require another waiver, because the power of the court ends when the judgment is rendered.

b. But funds belonging to government corporations (whose charters provide that they can sue and be sued) that are deposited with a bank are not exempt from garnishment. Exceptions: Municipality of San Miguel, Bulacan vs. Fernandez, 130 SCRA 56, funds of a municipality are public in character and may not be garnished UNLESS there is a corresponding appropriation ordinance duly ed by the Sangguniang Bayan.

PNB vs. Pabalan, 83 SCRA 595

funds belonging to government corporations which can sue and be sued that are deposited with a bank.

Rules Regarding Payment of Interests by Government in Money Judgments Against It:

G.R.—Government cannot be made to pay interests. Exceptions: 1. Eminent domain; 2. Erroneous collection of taxes; 3. Where government agrees to pay interest pursuant to law.

ARMED FORCES OF THE PHILIPPINES (AFP) The AFP is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. It consist of citizen armed force and a regular force. One police force— Republic Act 6975

Mass Media

It includes: 1. Radio 2. Television 3. Printed media

Full Filipinization Section 11 (1), article XVI—the ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens. It prohibits combination in restraint of trade and unfair competition, and commands Congress to regulate or prohibit monopolies in commercial mass media.

Advertising not treated as mass media but use of mass media.