Question 2, 2017 Political Law Bar Exam

II.

A.

(Question II-A, Political Law, 2017 Bar Exam)

Under the doctrine of immunity from suit, the State cannot be sued without its consent. How may the consent be given by the State? Explain your answer. (3%)

Suggested Answer:

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

Implied consent is conceded when the State itself commences litigation, thus opening itself to a counterclaim or when it enters into a proprietary contract. In this situation, the government is deemed to have descended to the level of the other contracting party and to have divested itself of its sovereign immunity. However, contract entered into in the exercise of its sovereign functions, the doctrine of state immunity applies.

Further, should the Government perpetrate an injustice to a citizen, it amounts to an implied waiver of immunity as well.

B.

(Question II-B, Political Law, 2017 Bar Exam)

The doctrine of immunity from suit in favor of the State extends to public officials in the performance of their official duties. May such officials be sued nonetheless to prevent or to undo their oppressive or illegal acts, or to compel them to act? Explain your answer. (3%)

Suggested Answer:

Yes. Under jurisprudence, the doctrine of State immunity extended to public officials does not apply where the public official is charged in his official capacity for acts that are unauthorized or unlawful and injurious to the rights of others. 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.

C.

(Question II-C, Political Law, 2017 Bar Exam)

Do government-owned or -controlled corporations also enjoy the immunity of the State from suit? Explain your answer. (3%)

Suggested Answer:

No, if their charter provides that they can sue and be sued. If the agency is incorporated, the test of its suability is found in its charter. The simple rule is that it is suable if its charter says so, and this is true regardless of the functions it is performing.

..

(Notice: The suggested answers simulate those that a bar examinee may provide, and thus specific citations are not provided. Notwithstanding, in the reviewers, the bar exam question is answered under the appropriate topic which discusses the concepts and principles, as well as provide for specific citations. Accordingly, please refer to it on the reviewer or in the Library.)

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