CONSTITUTIONAL

L A W- I

Theoretical Basis of the Constitution

Social Contract Theory
Philosophical
View
of
the
Constitution
The
Constitution
is
a
social
contract.
(Marcos v .Manglapus)
Viewed in the light of the Social Contract
Theories, the
Constitution
may
be
considered
as
the
Social Contract
itself in the sense that it is the
very basis of the decision to constitute a
civil society or State, breathing life to
its juridical existence, laying down
the framework by which it is to
be
governed, enumerating
and
limiting
its
powers and
declaring
certain
fundamental
rights
and
principles
to
be inviolable. The
Constitution as a political document
may be considered as the concrete
manifestation
or expression of the
Social Contract or the decision to
abandon the state of nature and
organize
and found a civil society or
State. According to Dean Baustista, the
Constitution is asocial
contract
between the government and the
people,
the
governing
and
the
governed.
7(ASM:
I dont
necessarily
agree
with
this
statement. As a social contract, the
Constitution, I think is a contract
between
and
among
the
people
themselves
and not between the
government and the
people.
The
government is
only an effect
or
consequence of the social contract
of
the
people. In
other words, the
government is
only a creature of the
Constitution.
Hence, the government
cannot be a party to a contract that
creates it.
In the 1987 Philippine
Constitution, it reads, We the sovereign
Filipino peoplein order to build a
Prepared by: Kxy Paula C. Pascual, RN
Arellano University School of Law

society
and
establish
a
government ordain and promulgate
this Constitution.) According to Dean
Bautista,
the
Constitution reflects
majoritarian
values
but
defends
minoritarian rights.The theory of a
social
contract
is
a
hypothesis
explaining how society originates as
well as the presumed relationship
between its members, how they incur
responsibilities, and their rights. Early
proponents of the social contract, like
Hobbes (1985) and Locke (2003), differed
in their views and both have been
surpassed by Rousseau whose influential
1762 treatise, The Social Contract, has
made
him
synonymous
since
its
publication with the theory of the
social contract.
Constitution Defined
It is "a law for the government,
safeguarding
individual
rights,
set
down in writing." (Hamilton.)
"It may be more specifically defined as a
written
instrument
organizing
the
government, distributing its powers and
safeguarding the rights of the People."
(Tanada and Fernando)
"It is the written instrument by which
the
fundamental
powers
of
government are established, limited and
defined, and by which those powers are
distributed
among
the
several
departments for their safe
and useful exercise for the benefit of the
body politic. (Malcolm and Laurel)
"According to Schwartz, "a constitution
is seen as an organic instrument,
under which governmental powers are
both
conferred
and
circumscribed.
Such stress upon both grant and
limitation of authority is fundamental
in
American
theory. The office and
purpose of the constitution is to shape
1

and fix the limits of governmental

activity.'" (Fernando, The Constitution of
the Philippines, 20-21, 2nd ed., 1977.)
Comprehensive: That body of rules
and maxims in accordance with which
the powers of sovereignty are habitually
exercised. (Cooley)
American sense: A constitution is a
written instrument
by
which
the
fundamental
powers
of government
are established, limited, and defined
and
by
which
these powers are
distributed among several departments,
for their more safe and useful exercise,
for the benefit of
the body politic.
(Justice Miller quoted by Bernas)
The Constitution is the basic and
paramount law to which all other laws
must conform and to which all persons,
including the highest officials, must
defer. (Cruz, Constitutional Law, 1998
ed., p. 4)
Purpose of the Constitution

To prescribe the permanent framework of

a system of government; and,
To
assign
to
the
several
departments their respective powers
and duties, and to establish certain first
principles on which the government is
founded.
N: Majoritarianism is
a traditional
political philosophy which asserts that a
majority of the population is entitled to a
certain degree of primacy in the society,
and has the right to make decisions that
affect the society.
Historical Background of the 1987
Constitution
began on 11 April 1899, the date when
the Treaty of Paris
between
the
Prepared by: Kxy Paula C. Pascual, RN
Arellano University School of Law

United and Spain of 10 December

1898
became effective upon the
exchange
of
instruments
of
ratification of both countries.
Sources of the 1987 Constitution:
(i) McKinley's Instructions to the Second
Philippine Commission;
(ii) Spooner Amendment;
(iii) Philippine Bill of 1902;
(iv) Jones Law of 1916,
known
as
the Philippine
Autonomy Act;
(v) 1935 Constitution;
(vi) 1973 Constitution; and,
(vii) Freedom Constitution of 1986 and its
implementing orders.
1.
Proclamation
of
the
Freedom
Constitution
a. Proclamation No. 1, February 25,
1986, announcing that she (Corazon
Aquino) and VP Laurel were assuming
power.
*announced the Provisional Constitution*
seemed to suggest that it was a
revolutionary
government,
since
it
announced that the "new government
was installed, through a direct exercise of
the power of the Filipino people assisted
by units of the New Armed Forces,"
referring to the EDSA revolution.
b. Executive Order No.1, (Febrauary28,
1986)
c. Proclamation
No.3, March
25,
1986, announced the promulgation of
the Provisional (Freedom) Constitution,
pending the drafting and ratification
of
a
new Constitution. It
adopted
certain
provisions
in
the
1973
Constitution,
contained
additional
articles
on
the
executive
department,
on
government
reorganization, and
existing laws. It
also provided of the calling of a
Constitutional Commission to
be
composed of
30-50
members
to
draft a new Constitution.
* Contents of Provisional Constitution:
2

Art I Adoption of certain provision

of the 1973 Constitution as
amended
Art II on the President, Vice
President and Cabinet
Government
reorganization
promoting economy, efficiency and
the eradication of graft and
corruption
Existing
laws,
treaties
and
contracts shall remain operative
until
amended,
modified
or
repealed
Art V Adoption of a new
Constitution
(Constitutional
Commission)
Art VI Holding of Elections
Art VII Effective Date

2. Adoption of the Constitution

Process
A Commission shall be appointed by the
President to draft a new Constitution
within 60 days from the date of this
proclamation (Sec 1, Proclamation No. 3)
New Constitution shall be presented by
the Commission to the President (Sec 5,
Proclamation No. 3)
The President shall fix the date for the
holding of a plebiscite within 60 days
following its submission to the President
(Sec 5, Proclamation No. 3)
New Constitution shall become valid and
effective upon ratification by a majority
of the votes cast in such plebiscite (Sec
5, Proclamation No. 3)
Composition of Commission
Number: 30-50 members
Requirements (Sec 1, Proclamation No 3)
Natural-born citizen
Of recognized probity, known for
their independence, nationalism
and patriotism
Chosen by the President after
consultation with various sectors
b. 1987 Constitution, Art. XVIII, sec. 27.
EFFECTIVITY
Prepared by: Kxy Paula C. Pascual, RN
Arellano University School of Law

* This Constitution shall take effect

immediately upon its ratification by a
majority of the votes cast in a plebiscite
held for the purpose and shall supersede
all previous Constitutions.
* Approved by the Constitutional
Commission of 1986
on the twelfth day of October 1986
* Accordingly signed on the fifteenth day
of October 1986 at the Plenary Hall,
National Government Center, Quezon
City, by the Commissioners whose
signatures are hereunder affixed.
c. Proclamation No. 58, February 11,
1987
d. Effectivity of the 1987 Constitution:
February 2, 1987
Parts of a good written constitution
Constitution of Government.
The series of provisions outlining the
organization
of
the government,
enumerating its powers, laying down
certain
rules
relative
to
its
administration
and
defining
the
electorate. (ex. Art VI, VII, VIII and IX)
Constitution of Liberty.
The series of prescriptions setting forth
the fundamental civil and political rights
of the citizens and imposing limitations
on the powers of government as a
means of securing the enjoyment of
those rights. (Ex. Article III)
Constitution of Sovereignty.
The
provisions
pointing
out
the
mode or procedure in accordance with
which formal changes in the fundamental
law maybe brought about. (Ex. Art XVII)
[Social and economic rights]
STATE
A community of persons, more or less
numerous, permanently occupying a
fixed territory and possessed of an
independent government organized
for political ends to which the great
3

body of inhabitants render habitual

obedience.

and political power for the common

good. (Sec 1, Art XIII)

CIR v. Campos Rueda

A State is a politically organized
sovereign community, independent of
outside control, bound by ties of
nationhood, legally supreme within its
territory, and acting through government
functioning under a regime of law.

(2) Electors, as used in:

a. The President and the Vice-President
shall be elected by direct vote of the
people (Sec 4, Art VII)

Elements of the State

People --- inhabitants of the State
(1) Inhabitants, as used in:
a. The State shall protect and promote
the right to health of the people and
instill health
consciousness
among
them.(Sec 15. Art II)
b. The State shall protect and advance
the right of the people to a balanced and
healthful ecology in accord with the
rhythm and harmony of nature. (Sec 16,
Art II)
c. The right of the people to be secure in
their persons, houses, papers, and
effects against unreasonable searches
and seizures of whatever nature and for
any purpose shall be inviolable x x x
(Sec 2, Art III)
Qua Chee Gan v Deportation Board
(1963): The right of an individual to
be secure in his person is
guaranteed by the Constitution.
The same is declared a popular
right of the people and indisputably
applies to both citizens and
foreigners in this country.
d. The Congress shall give highest
priority to the enactment of measures
that protect and enhance the right of all
the people to human dignity, reduce
social,
economic,
and
political
inequalities,
and
remove
cultural
inequities by equitably diffusing wealth
Prepared by: Kxy Paula C. Pascual, RN
Arellano University School of Law

b. The Congress may, by law, adopt a

new name for the country, a national
anthem, or a national seal, which shall all
be truly reflective and symbolic of the
ideals, history, and traditions of the
people. Such law shall take effect only
upon its ratification by the people in a
national referendum. (Sec 2, Art XVI)
c. After the expiration in 1991 of the
Agreement between the RP and USA
concerning
Military
Bases,
foreign
military bases, troops, or facilities shall
not be allowed in the Philippines except
under a treaty duly concurred in by the
Senate and, when the Congress so
requires, ratified by a majority of the
votes cast by the people in a national
referendum held for that purpose, and
recognized as a treaty by the other
contracting State.(Sec 25, Art XVIII)
(3) Citizens, as used in:
a. Preamble, 1987 Constitution ;
b. The Philippines is a democratic and
republican State. Sovereignty resides in
the people and all government authority
emanates from them. (Sec 1, Art II)
c. The prime duty of the Government is
to serve and protect the people. The
Government may call upon the people to
defend the State and, in the fulfillment
thereof, all citizens may be required,
under conditions provided by law, to
render personal, military, or civil
service. (Sec 4, Art II)
d. The right of the people to information
on matters of public concern shall be
4

recognized. Access to official records,

and to documents, and papers pertaining
to official acts, transactions, or decisions,
as well as to government research data
used as basis for policy development,
shall be afforded the citizen, subject to
such limitations as may be provided by
law. (Sec 7, Art III)
Territory --- fixed portion of the surface
of the earth inhabited by the people of
the State
Article I of the 1987 Constitution
National Territory of the Philippines
comprises of:
Philippine archipelago that body
of water studded with islands which
is delineated in the Treaty of Paris,
as amended by the Treaty of
Washington and the Treaty with
Great Britain.
With all the islands and waters
embraced therein; and all other
territories
over
which
the
Philippines has sovereignty or
jurisdiction;
Definition: It includes any territory that
presently belongs or might in the future
belong to the Philippines through any of
the internationally accepted modes of
acquiring territory.
Consisting of its
a. Terrestrial
b. Fluvial; and
CODE: TFA
c. Aerial domains
Including its
a. Territorial sea
b. The seabed
c. The subsoil
CODE:
TSSIO
d. The insular shelves; and
e. The other submarine areas
The waters
a. Around
b. Between and
Prepared by: Kxy Paula C. Pascual, RN
Arellano University School of Law

c. Connecting
d.
The islands of the archipelago
CODE: ABCI
Regardless of their breadth and
dimensions
Form part of the INTERNAL WATERS of
the Philippines.
Archipelagic Doctrine
(1989 Bar Question)
It is the principle whereby the
body of water
studded with islands, or the islands
surrounded
with water , is viewed as a unity of
islands and
waters together forming one
integrated unit. For
this purpose, it requires that baselines be
drawn by
connecting the appropriate points of the
outermost
islands to encircle the islands
within the
archipelago. We consider all the
waters enclosed
by thes traight baselines as internal
waters.
Purpose of Archipelagic Doctrine:
To protect the territorial integrity of the
archipelago. Without it, there would
be pockets of high seas between
some of our islands and islets,
thus foreign vessels would be able
to pass through these pockets of
seas
and
would
have
no
jurisdiction over them.
Elements:
Definition of internal waters
Internal waters refer to
waters
landwards
from
baseline of the territory
The straight line
delineating the
Territorial sea.

all
the

method

of

Straight
Baseline
Methoddrawn connecting
selected points on the coast without
departing to
any appreciable
extent
from
the
general direction
of the coast. RA 3046 and RA5446
have drawn
straightbaselines around the Philippines.
(The
problem
with
the
straight
baseline
method is that
it conflicts
with the Law of the Sea because it
recognizes
the
right
of
innocent
passage in archipelagic waters. That
is
why
we
made
a reservation.
However, as Bernas pointed out,
the reservation is ad cautelam)
The claim made in the Constitution took
effect in 1973 before the 1982 Law
of the Sea Convention was
formulated.
Article
8(2)
of
the
Convention itself
says
that
the
new
rule
on
archipelagic waters applies only to
areas which had not previously
been considered as internal waters.
Territorial sea- 12 nautical miles
(n.m.)
Contiguous zone-12 n.m. from the
edge of the territorial sea
Exclusive economic zone - 200 n.m.
from the baseline [includes (1) and
(2)]
1) Those ceded to the US by virtue of
the Treaty of Paris on December 10,
1898.
2) Those defined in the treaty
concluded between the US and
Spain (Treaty of Washington) on
November 7, 1990, which were
not defined
in the Treaty
of
Paris, specifically the islands of
Cagayan,Sulu and Sibuto.
3) Those defined in the treaty
concluded on January 2, 1930,
Prepared by: Kxy Paula C. Pascual, RN
Arellano University School of Law

between the
US
and
Great
Britain
(Treaty
with
Great
Britain),specifically the Turtle and
Mangsee islands.
4) The island of Batanes, which
was covered under a general
statement
in
the
1935
Constitution.
5) Those contemplated
in
the
phrase
belonging to
the
Philippines by historic right or legal
title in the1973 Constitution.
According to UNCLOS, in
Archipelagic
waters,
a right
of
innocent
passage
shall
exist
in
these waters.
But, the
Philippines
made
a
reservation, thus, The
concept of archipelagic waters is similar
to the concept of internal waters
under
the Constitution of the
Philippines, and removes straits
Connecting these waters with the
economic zone or
high sea from the rights of foreign
vessel to transit
passage for international navigation.
Bernas: The reservation is ad cautelam.
The claim
made in the Constitution took effect in
1973 before
the
1982
Law
of
the
Sea
Convention was
formulated.
Article
8(2)
of
the
Convention itself
says
that
the
new
rule
on
archipelagic waters applies only to
areas which had not previously
been considered as internal waters.
According to UNCLOS,
Archipelagic waters refers to
areas
enclosed as internal waters by using
the baseline method which had not
been previously considered as internal
waters. (See Article 53 of UNCLOS)
Territorial sea is
of sea with a

an

adjacent

belt
6

breadth
of
12
nautical
miles
measured from the
baselines of a state and over which
the state has
sovereignty .(Article 2, 3 of UNCLOS)
Internal waters refer to all waters
landwards from
the baseline of the territory . Is
from which the
breadth
of
territorial
sea
is
calculated. (Brownlie,
Principles of PIL) No right of innocent
passage for
foreign vessels exist in the case of
internal waters.
(Harris,
Cases
and
Material
on
International Law,
5th ed., 1998, p.407) Under Section 1,
Article I of the 1987 Constitution, the
internal
waters of
the Philippines
consist of the waters around between
and connecting the islands of
the
Philippine archipelago regardless of
their breadth
and
dimensions
including the waters in bays, rivers,
and lakes.
Contiguous
zone
is
a
zone
contiguous to the
territorial sea and extends up to
twelve nautical
miles from the territorial sea and
over which the
coastal state may exercise control
necessary to
prevent infringement of its customs,
fiscal, immigration or sanitary laws and
regulations within
its
territory
or
territorial
sea.
(Article 33 of the
Convention on the Law of the Sea.)
The
EEZ
extends
200
nautical
miles from the
baseline. The EEZ is recognized in
the UN
Convention on the Law of the Sea.
Although it is not part of the national
Prepared by: Kxy Paula C. Pascual, RN
Arellano University School of Law

territory, exclusive economic benefit is

reserved for the country within the zone.
By virtue of PD 1599, the Philippine
declares that it has
sovereign
rights
to
explore,
exploit,
conserve and
manage the natural resources of the
seabed, subsoil,
and superjacent
waters.
Other states are prohibited
from using the zone except for
navigation and overflight, laying of
submarine cables
and pipeline, and
other lawful uses related to navigation
and communication.
Government --- agency/ instrumentality
through which the will of the State is
formulated, expressed, and realized.

Government of the Republic of the

Philippines
a
term
which
refers
to
the
corporate governmental entity through
which the functions of government
are
exercised
throughout
the
Philippine Islands, including, save as
the contrary appears from context,
the
various
arms
through which
political authority is made effective
in said Islands, whether pertaining
to
the
central Government
or
to
the provincial or municipal branches
or other form of local government.
(Section
2
of
the
Revised
Administrative Code
(1917).
On the national scale, the term
government of the Philippines refers
to the three great departments.
On the local level, it means the regional,
provincial, city municipal and barangay
governments.
It
does
not include
government
entities which are
given a corporate personality separate
and distinct for the government and
which are governed by the corporation
law
Functions of the Government
7

a. Constituent functions - constitute the

very bonds of society; compulsory
keeping of order and providing
protection
fixing of legal relations between
man and wife, and children
regulation
of
the
holding,
transmission and
interchange of property
define crime and punishment
regulates and determines contract
between
individuals
dealings of state with foreign
powers
b. Ministrant functions - undertaken to
advance the general interests of society;
optional
public works
public education
public charity
health and safety regulations
trade and industry
HOWEVER, the distinction between
constituent and ministrant functions is
not relevant in our jurisdiction. ACCFA v
Federation of Labor Unions
Doctrine of parens patriae
It is the task of the government to
act as guardian of the rights of the
people.
This prerogative of parens patriae
is inherent in the supreme power of
every state, whether that power is
lodged in a royal person or in the
legislature
De jure and de facto governments
a. De jure government
has rightful title
no power or control, either because
this has been withdrawn from it, or
because it has not yet actually
entered into the exercise thereof.
b. De facto government
Prepared by: Kxy Paula C. Pascual, RN
Arellano University School of Law

government of fact, that is, it

actually exercises power or control
without legal title.
SOVEREIGNTY
Supreme and uncontrollable power
inherent in a State by which the State
is governed
Characteristics:
permanent
exclusive
comprehensive
absolute
indivisible inalienable
imprescriptible
Kinds of Sovereignty
A. Legal Sovereignty
is the authority which has the
power to issue final commands. In
our country, the Congress is the
legal sovereign. (Cruz)
described
as
the
supreme
power to make laws.
is the supreme power to affect
legal
interests
either
by
legislative, executive or judicial
action.
This is lodged in
the
people but is normally exercised
by state agencies (Bernas)
Sinco prefers not to
make
the
distinction
and
places legal
sovereignty
in
the
state
itself
considered as a juridical person.
B. Political Sovereignty
Sum total of all the influences of
a State, legal
and non-legal which determine the
course of law.
power behind the legal sovereign
as the sum total of all influences in
a state, legal
or non-legal,
8

which determine the course of law .

(Bernas)
C. Internal Sovereignty
It refers to the power of the State
to control its domestic affairs. It
is the supreme power over
Everything within its territory.
D. External Sovereignty
Also known as Independence,
which is freedom
from external
control. It is the power of State to
direct its relations with other
States.
Doctrine of Sovereign Immunity
The State cannot be sued without
its consent. (Sec. 3, Art. XVI,
1987 Constitution)
Basis:
It reflects nothing less than
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.
There can be no legal right against
the authority which makes the law
on which the right depends
(Republic
vs.
Villasor, GRN L
30671,
November 28, 1973).
However, it may be sued if it gives
consent,
whether
express
or
implied.
If the State is amenable to suits, all
its time would be spent defending
itself from suits and this would
prevent it from performing it other
functions. [Republic v. Villasor]
Suits Against the State
When the Republic is sued by
name;
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Arellano University School of Law

When the suit is against an

unincorporated
government
agency;
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 v. Sandoval,
G.R. No. 84607, Mar. 19, 1993)

A. A suit is against the State, if

it produces adverse consequences
to the public treasury in terms of
disbursement of public funds and
loss of government property.

cannot prosper unless the State

has given its consent.

B. Suit is not against the State:

a) when the purpose of the suit is to
compel an officer charged with the duty
of making payments pursuant to an
appropriation made by law in favor of the
plaintiff to make such payment, since the
suit is intended to compel
performance of a ministerial duty.
(Begoso v. PVA)
b) when from the allegations in the
complaint, it is clear that the respondent
is a public officer sued in a private
capacity;
c) when the action is not in person am
with the government as the named
defendant, but an action in rem that does
not name the government in particular.
State can be sued with:
A. Express consent
maybe manifested
through
general or special law.
It is effected only by the will of
the legislature through the

medium of a duly enacted

statute.
Note: Solicitor General cannot
validly waive immunity from
suit. Only the Congress can
(Republic v. Purisima, G.R. No.
L36084, Aug.31, 1977).
General Law
authorizes any person who meets the
conditions stated in the law to sue the
government in accordance with the
procedure in the law

is given when the State itself

commences litigation or
when it
enters into a contract. There is an
implied consent when the state enters
into a business contract. (US v. Ruiz,
G.R. No. L35645 May 22, 1985)
Note: This rule is not absolute.

CA 327: an act fixing the time

within which the
Auditor General should render his
decision and prescribing the manner of
appeal
decision rendered within 60 days after
receipt of necessary information for
cases
involving
settlement
of
accounts or claims
decision rendered within 100 days
from submission for accounts for
accountable officers
decision may be appealed in writing to
the President or the Supreme Court
within 30 days if aggrieved party is a
private person
appeal may be taken by the proper
head of department or head of office
or branch immediately concerned

Special Law
may come in the form of a private bill
authorizing
a named individual to bring suit on a
special claim

Act
2189:
Provinces,
cities
and
municipalities
shall
be
liable
for
damages for the death or injuries
suffered by any person by reason of the
defective conditions of roads, streets,
public buildings and other public works
under their control and supervision
B. Implied consent
Prepared by: Kxy Paula C. Pascual, RN
Arellano University School of Law

when the State enters into a

business
contract
or
itself
commences litigation.
State may only be liable for
proprietary acts (jure gestioni)
and not for sovereign acts (jure
imperii)
When state files complaint,
suability will result only where
the government is claiming
affirmative
relief
from
the
defendant
when it would be inequitable for
the State to invoke its immunity in
instances
when the State takes private
property for public use or purpose.

The Government is only liable for the

acts of its agents, officers and
employees, when they act as special
agents within the meaning of (ART.
2180 (6) CC).
Special agent
one who receives a definite and fixed
order or
commission, foreign to the exercise
of the duties of his office if he is a
special official.

This concept does not apply to any

executive
agent
who
is
an
employee
of
the
active
administration and who on his own
responsibility
performs
the
functions which are inherent in and
naturally pertain to his office and
which are regulated by law and the
regulations
10

(Merritt v. Govt of the Philippine

Islands)
Shauf v CA

Unauthorized
acts
of
government officials or officers are
not acts of the State, and an action
against the officials or officers by
one whose rights have been
invaded or violated by such acts,
for the protection of his rights, is
not a suit against the State.
The doctrine of immunity from suit
will not apply and may not be
invoked where the public official is
being sued in his private and
personal capacity as an ordinary
citizen, for acts without authority or
in excess of the powers vested in
him.
When the Government creates a
corporation, it invariably provides
this corporation a separate entity
and with the capacity to sue and be
sued.
Consent to be sued includes
actions based on quasi-delict even
though committed by regular, and
not special, agents.
Rule: a government entity can be
sued for tort, but if it is, it can
invoke the defense that it acted
through its regular employee, and
not through a special agent.
The principle of State immunity
from suit does not apply when the
relief
demanded
requires
no
affirmative official action on the
part of the State no the affirmative
discharge of any obligation which
belongs to the State in its political
capacity, even though the officers
or
agents
who
are
made
defendants claim to hold or act
only by virtue of a title of the State
and as its agents and servants.
(Republic v Sandoval)
Prepared by: Kxy Paula C. Pascual, RN
Arellano University School of Law

Implications of this phrase

waiver of immunity by the State
does not mean a concession of its
liability

When the State gives its consent

to be sued,
all it does is to give the other party
an opportunity to show that the State
is liable. Accordingly, the phrase that
waiver of immunity by the State does
not mean a concession of liability means
that by consenting to be sued, the State
does not necessarily admit that it is
liable.
In such a case the State is merely
giving the plaintiff a chance to prove
that the State is liable but the State
retains the right to raise all lawful
defenses. (Philippine Rock Industries, Inc.
v. Board of Liquidators, G.R. No. 84992,
December 15, 1989)
SUABILITY
Depends on the consent of the
State to be sued
The circumstance that a State is
suable does not necessarily mean
that it is liable.
LIABILITY
Depends on the applicable law and
the established facts
The State can never be held liable if
it is not suable.
The difference between the suability
and liability of the Local Government
Where the suability of the state is
conceded
and by which liability is ascertained
judicially, the
state is at liberty to determine for
itself whether
to satisfy the judgment or not.
(Municipality of
11

Hagonoy Bulacan vs. Hon. Simeon

Dumdum, G.R.
No. 168289 March 22, 2010)

In this case, the State divested itself

of its sovereign capacity when it
organized the PNR which is no
different from its predecessors, the
Manila Railroad Company. (Malang v.
PNRC, G.R. No. L49930, August 7,
1985)

Doctrine of State Immunity also apply as

well to foreign government

This doctrine also applies to foreign

government
because
of
the
sovereign equality of all the state.
Accordingly, 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.
(JUSMAG Philippines v. NLRC, G.R.
No. 108813, December 15, 1994)

Q:
Petitioners
sued
the
Philippine National
Railways for damages for the
death of their son
who fell from an overloaded train
belonging to
the PNR. The trial court dismissed
the suit on the
ground that the charter of the
PNR, as amended
by P.D No. 741 has made the
same a
government instrumentality, and
thus immune
from suit. Is the dismissal proper?
A: No. The correct rule is that not all
government
Entities whether corporate or non
corporate, are immune from suits.
Immunity from suit is determined by
the character of the objects for which
the entity is organized. When the
government enters into a commercial
business, it abandons its sovereign
capacity and is to be treated like any
other corporation.
Prepared by: Kxy Paula C. Pascual, RN
Arellano University School of Law

Q:
Distinguish
unincorporated
government
agency
performing
governmental function and
one
performing
proprietary
functions according
to
the
applicability
of
the
Doctrine of State
Immunity.
Unincorporated
Government
Agency Performing Governmental
Functions

Immunity has been upheld in its

favor
because its function is governmental
or incidental to such function
Unincorporated Government Agency
Performing Proprietary Function
Immunity has not been upheld in its
favor whose function was not in pursuit
of a necessary function of government
but was essentially a business. (Air
Transportation Office v. Spouses David,
G.R. No. 159402, February 23, 2011)
Restrictive
Theory
Immunity from Suit

of

State

The Restrictive Theory of State

Immunity means that 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.
However, the restrictive application of
State immunity is proper only when
12

the
proceedings
arise
out
of
commercial transactions of the foreign
sovereign, its commercial activities or
economic affairs. It does not apply
where the contract relates to the
exercise of its sovereign functions.
(United States vs. Ruiz, G.R. No. L
35645, May 22, 1985)
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.
GR: 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.
XPNs: The rule does not apply where:
1. 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; or
2. 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. (Lansang vs. CA, G.R. No.
102667, February 23, 2000)

Prepared by: Kxy Paula C. Pascual, RN

Arellano University School of Law

Sec. 2 of CA 327 has been

amended by Sec. 50 of PD 1445
and by Sec. 35, Chapter 5, Subtitle B,
Title I, Book V, Administrative Code of
the Philippines, as follows:
Sec. 50. Appeal from decisions of the
Commission.-- The party aggrieved by
any decision, order, or ruling of the
Commission may within thirty days
from his receipt of a copy thereof
appeal on certiorari to the Supreme
Court in the manner provided by law
and the Rules of Court. When the
decision, order, or ruling adversely
affects
the
interests
of
any
government agency, the appeal may
be taken by the proper head of that
agency. (PD 1445.)
Sec. 35. Appeal from Decision of
the Commission.-- Any decision,
order or ruling of the Commission
may be brought to the Supreme Court
on certiorari by the aggrieved party
within thirty days from his receipt of a
copy thereof in the manner provided
by law and the Rules of Court. When
the decision, order or ruling adversely
affects the interest of any government
agency, the appeal may be taken by
the proper head of that agency.
(Subtitle
B,
Title
I,
Book
V,
Administrative
Code
of
the
Philippines.)
Before the 1987 Constitution, the
law in force was Act 3038 and CA
327 which, according to Sayson v
Singson (a suit to compel payment
of electrical supplies delivered to
CAA), allowed suit only for money
claims arising from contract, and
providing a special
procedure. Under this procedure, the
claim must be filed with the Auditor
General (now, COA). If the Auditor did
not act within 60 days, then the
13

claimant could file his claim with the

RTC. But if the Auditor rendered a
decision, then the appeal could be
made to the SC, unless the claimant
was a public official in which case
appeal was to the President.
Art. IX of the 1987 Constitution now
gives a different procedure. All money
claims are to be filed with COA, which
has 60 days within which to act. If it
fails to so act, the claimant must wait
anyway. Once a decision has been
made, he has, within 30 days to
appeal by certiorari to the SC.
Art. 2180 of the Civil Code
allows
a
suit
against
the
government
for
quasi-delicts
committed by the government when
acting through special agents (those
performing non-regular functions)
But if the tortious act was committed
by a regular employee, the injured
party could only bring a suit for
damages against the employee in his
personal capacity. It should be noted
in this connection, that in Merritt vs
Govt. of the Philippine Islands, 34 Phil
311, the SC said that it is therefore
evident that the State is only liable for
acts of its
agents, officers and EEs when they act
as special agents within the meaning
of Art. 1903 (now
Art. 2180) and that the chauffeur of
the ambulance of the General Hospital
was not such agent.
In this case, the Philippine General
Hospital
(PGH),
the
agency
involved, did not yet have
separate legal personality from the
Philippine Govt. It should further be
noted that the plaintiff
was allowed to sue by virtue of a
special law but was unable to hold the
defendant govt. liable

Prepared by: Kxy Paula C. Pascual, RN

Arellano University School of Law

since the injuries were caused by a

regular driver of the govt. and not a
special agent.
Incorporation
of
governmentowned or controlled corps.
When the government creates a
corporation, it invariably provides
this corporation a separate entity
and with the capacity to sue and be
sued. If the government entity is given
the
capacity
to
be
sued,
the
suit
encompasses any kind of action,
including one from tort. In SSS v CA, 120
SCRA 707 (1983), the property of one
Socorro Cruz was foreclosed due to the
negligence of the regular employees
of SSS in mistaking her account,
which was updated, with that of another
Socorro Cruz, which was in arrears. The
SC, in granting nominal damages to the
claimant, seemed to be saying that SSS
could have invoked the defense of Art.
2180, which it did not. The separate
opinion of Makasiar enunciated this.
[Note: Consent to be sued includes
actions based on quasi-delict even
though committed by regular agents and
not by special agents.]So the rule, it
seems, is that a government entity can
be sued for tort, but if it is, it can invoke
the defense that it acted through its
regular employees, not special agents.

14

OTHER READINGS
Republic Act No. 3083
AN ACT DEFINING THE CONDITIONS
UNDER WHICH THE GOVERNMENT OF
THE PHILIPPINE ISLANDS MAY BE SUED
SECTION
1.
Complaint
against
Government. Subject to the provisions
of this Act, the Government of the
Philippine Islands hereby consents and
submits to be sued upon any moneyed
claim involving liability arising from
contract, expressed or implied, which
could serve as a basis of civil action
between private parties.
SECTION 2. A person desiring to avail
himself of the privilege herein conferred
must show that he has presented his
claim to the Insular Auditor and that the
latter did not decide the same within two
months from the date of its presentation.
SECTION 3. Venue. Original actions
brought pursuant to the authority
conferred in this Act shall be instituted in
the Court of First Instance of the City of
Manila or of the province were the
Prepared by: Kxy Paula C. Pascual, RN
Arellano University School of Law

15

claimant resides, at the option of the

latter, upon which court exclusive
original jurisdiction is hereby conferred to
hear and determine such actions.

SECTION 9. This Act shall take effect on

its approval.
Approved, March 16, 1923.

SECTION
4.
Actions
instituted
as
aforesaid shall be governed by the same
rules of procedure, both original and
appellate, as if the litigants were private
parties.
SECTION 5. When the Government of the
Philippine Island is plaintiff in an action
instituted in any court of original
jurisdiction, the defendant shall have the
right to assert therein, by way of set-off
or counterclaim in a similar action
between private parties.
SECTION 6. Process in actions brought
against the Government of the Philippine
Islands pursuant to the authority granted
in this Act shall be served upon the
Attorney-General whose duty it shall be
to appear and make defense, either
himself or through delegates.
SECTION 7. Execution. No execution
shall issue upon any judgment rendered
by any court against the Government of
the
Philippine
Islands
under
the
provisions of this Act; but a copy thereof
duly certified by the clerk of the Court in
which judgment is rendered shall be
transmitted by such clerk to the
Governor-General, within five days after
the same becomes final.
SECTION 8. Transmittal of Decision. The
Governor-General, at the commencement
of each regular session of the Legislature,
shall
transmit
to
that
body
for
appropriate action all decisions so
received by him, and if said body
determine that payment should be made,
it shall appropriate the sum which the
Government has been sentenced to pay,
including the same in the appropriations
for the ensuing year.
Prepared by: Kxy Paula C. Pascual, RN
Arellano University School of Law

Commonwealth Act No. 327

AN ACT FIXING THE TIME WITHIN WHICH
THE AUDITOR GENERAL SHALL RENDER
HIS DECISIONS AND PRESCRIBING THE
MANNER OF APPEAL THEREFROM
Section 1. In all cases involving the
settlement of accounts or claims, other
than those of accountable officers, the
Auditor General shall act and decide the
same within sixty days, exclusive of
Sundays and holidays, after their
presentation. If said accounts or claims
need reference to other persons, office or
offices, or to a party interested, the
period aforesaid shall be counted from
the time the last comment necessary to
a proper decision is received by him.
With respect to the accounts of
accountable officers, the Auditor General
shall act on the same within one hundred
days after their submission, Sundays and
holidays excepted.
In case of accounts or claims already
submitted to but still pending decision by
the Auditor General on or before the
approval of this Act, the periods provided
in this section shall commence from the
date of such approval.
Section2. The party aggrieved by the
final decision of the Auditor General in
the settlement of an account for claim
may, within thirty days from receipt of
the decision, take an appeal in writing:
(a) To the President of the United States,
pending
the
final
and
complete
withdrawal of her sovereignty over the
Philippines, or (b) To the President of the
Philippines, or (c) To the Supreme Court
16

of the Philippines if the appellant is a

private person or entity.

branch of the Government immediately

concerned.

If there are more than one appellant, all

appeals shall be taken to the same
authority resorted to by the first
appellant.

The appeal shall specifically set forth the

particular action of the Auditor General to
which exception is taken with the reasons
and authorities relied on for reversing
such decision.

From a decision adversely affecting the

interests of the Government, the appeal
may be taken by the proper head of the
department
or
in
case
of
local
governments by the head of the office or

Prepared by: Kxy Paula C. Pascual, RN

Arellano University School of Law

Section3. This Act shall take effect upon

its approval.

17