Sovereign immunity

Not to be confused with the principle of public international law that the government of a state is normally not amenable before the courts of another state, for which see State immunity.

Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution. This principle is commonly expressed by the popular legal maxim rex non potest peccare, meaning "the king can do no wrong."[1]

In constitutional monarchies the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by the courts, as they were created by the sovereign for the protection of his or her subjects.

By country

Australia

There is no automatic Crown immunity in Australia and the Australian Constitution does not establish a state of unfettered immunity of the Crown in respect of the States and the Commonwealth. The Constitution of Australia establishes items which the States and the Commonwealth legislate on independently of each other, in practice resulting in the States legislating on some things and the Commonwealth legislating on others. In some circumstances this can create ambiguity as to the applicability of legislation where there is no clearly established Crown immunity. The Australian Constitution does however, in s. 109, declares that, "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." Based on this, depending on the context of application and whether a particular statute infringes on the executive powers of the State or the Commonwealth the Crown may or may not be immune from any particular statute.

Many Acts passed in Australia, both at the State or the Federal level, contain a section declaring whether the Act binds the Crown, and, if so, in what respect:

  • Commonwealth Acts may contain wording similar to: "This Act binds the Crown in each of its capacities," or specify a more restricted application.
  • State Acts may contain wording similar to: "This Act binds the Crown in right of [the State] and, in so far as the legislative power of the Parliament of [the State] permits, the Crown in all its other capacities."

Whilst there is no ambiguity surrounding the first aspect of this declaration with respect to binding the Crown with respect to the State in question, there have been several cases in respect of the interpretation of the second aspect extending it to the Crown in its other capacities. Rulings by the High Court of Australia on specific matters of conflict between the application of States laws on Commonwealth agencies have provided the interpretation that the Crown in all of its other capacities includes the Commonwealth, therefore if a State Act contains this text then the act may bind the Commonwealth subject to the s. 109 test of inconsistency.

A landmark case which set a precedent for challenging broad Crown immunity and established tests for the applicability of State laws on the Commonwealth was Henderson v Defence Housing Authority in 1997.[2] This case involved the arbitration of a dispute between Mr. Henderson and the Defence Housing Authority (DHA). Mr. Henderson owned a house which the DHA had leased to provide housing to members of the Australian Defence Force (ADF). Under the NSW Residential Tenancies Act 1997,[3] Mr. Henderson sought orders from the Residential Tenancies Tribunal to enter the premises for the purposes of conducting inspections. In response, DHA claimed that as a Commonwealth agency the legislation of NSW did not apply to it [2] and further sought writs of prohibition attempting to restrain Mr. Henderson from pursuing the matter further. Up until this point the Commonwealth and its agencies claimed an unfettered immunity from State legislation and had used s. 109 to justify this position, specifically that the NSW Act was in conflict with the Act which created the DHA and s. 109 of the Constitution applied. Mr. Henderson took the case to the High Court and a panel of 7 justices to arbitrate the matter. By a majority decision of 6:1 the court ruled that the DHA was bound by the NSW Act on the basis that the NSW Act did not limit, deny or restrict the activities of the DHA but sought to regulate them, an important distinction which was further explained in the rulings of several of the justices. It was ruled that the NSW Act was one of general application and therefore the Crown (in respect of the Commonwealth) could not be immune from it, citing other cases in which the same ruling had been made and that it was contrary to the rule of law. As a result of this case, the Commonwealth cannot claim a broad constitutional immunity from State legislation.

In practice, three tests have been developed to determine whether a State law applies to the Commonwealth (and vice versa):

  1. does the law seek to merely regulate the activities of the Commonwealth as opposed to deny, restrict or limit them,
  2. is the State law constructed such that the Act binds the Crown in respect of all of its capacities, and
  3. is there no inconsistency between a State law and a Commonwealth law on the same matter.

If these three tests are satisfied then the Act binds the Crown in respect of the Commonwealth. It is important to note that in Australia there is no clear automatic Crown immunity or lack of it, as such there is a rebuttable presumption that the Crown is not bound by a statute, as noted in Bropho v State of Western Australia.[4] The Crown's immunity may also apply to other parties in certain circumstances, as held in Australian Competition and Consumer Commission v Baxter Healthcare.[5]

Belgium

Article 88 of the Constitution of Belgium states: "The King’s person is inviolable; his ministers are accountable."[6]

Bhutan

According to the constitution of Bhutan, the monarch is not answerable in a court of law for his or her actions.[7]

Canada

Canada inherited common law version of Crown immunity from British law. However, over time the scope of Crown immunity has been steadily reduced by statute law.[8] As of 1994, section 14 of the Alberta Interpretation Act stated, "No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, unless the enactment expressly states that it binds Her Majesty."[9] However, in more recent times "All Canadian provinces[...] and the federal government (the Crown Liability Act) have now rectified this anomaly by passing legislation which leaves the "Crown" liable in tort as a normal person would be. Thus, the tort liability of the government is a relatively new development in Canada, statute-based, and is not a fruit of common law."[10]

Since 1918, it has been held that provincial legislatures cannot bind the federal Crown, as Fitzpatrick CJ noted in Gauthier v The King:

“

Provincial legislation cannot proprio vigore [ie, of its own force] take away or abridge any privilege of the Crown in right of the Dominion.[11]

 ”

It has also been a constitutional convention that the Crown in right of each province is immune from the jurisdiction of the courts in other provinces. However this is now in question.[12]

Denmark

Article 13 of the Constitution of Denmark states: "The King shall not be answerable for his actions; his person shall be sacrosanct. The Ministers shall be responsible for the conduct of the government; their responsibility shall be determined by Statute."[13] Accordingly the monarch cannot be sued in his or her personal capacity. On the other hand this immunity from lawsuits does not extend to the state as such and article 63 explicitly authorises the courts to judge the executive authority: "The courts of justice shall be empowered to decide any question relating to the scope of the executive’s authority; though any person wishing to question such authority shall not, by taking the case to the courts of justice, avoid temporary compliance with orders given by the executive authority."[13]

Holy See

The Holy See, of which the current pope is head (often referred to incorrectly as the Vatican or Vatican City State, a distinct entity) claims sovereign immunity for the pope, supported by many international agreements.

Iceland

According to article 11 of the Constitution of Iceland the president can only be held accountable and be prosecuted with the consent of parliament.

Ireland

In Byrne v Ireland, the Irish Supreme Court declared that sovereign immunity had not survived the creation of the Irish Free State in 1922, and that accordingly the state could be sued for and held vicariously liable for the acts and omissions of its servants and agents.[14]

Italy

According to the Constitution, the President of the Italian Republic is not accountable, and he is not responsible for any act of his office, unless he has committed high treason or attempted to subvert the Constitution, as stated in Article 90:[15]

The President of the Republic is not responsible for the actions performed in the exercise of presidential duties, except in the case of high treason or violation of the Constitution. In such cases, the President may be impeached by Parliament in joint session, with an absolute majority of its members.

The Italian Penal Code makes it a criminal offence to insult the honor and prestige of the President (Art. 278), and until 2006 it was an offence to publicly give the President responsibility for actions of the Government (Art. 279 - abrogated).

The Italian Constitutional Court has declared the partial incompatibility with the Italian Constitution of a law that forced courts to delay all trials against the Italian Prime Minister while he is in office. The revised version says that the trial hearings have to be scheduled in agreement between the Judge and the Government.

Malaysia

In Malaysia, an amendment to the constitution in 1993 made it possible to bring proceedings against the king or any ruler of a component state in the Special Court. Prior to 1993, rulers, in their personal capacity, were immune from any proceedings brought against them.[16]

Nigeria

Section 308 of the Nigerian constitution of 1999 provides immunity from court proceedings, i.e., proceedings that will compel their attendance in favour of elected executive officers, namely the President and his vice and the Governors of the states and the deputies. This immunity extends to acts done in their official capacities so that they are not responsible for acts done on behalf of the state. However, this immunity does not extend to acts done in abuse of the powers of their office of which they are liable upon the expiration of their tenure. It is important to note that the judiciary has absolute immunity for actions decisions taken in their official capacity.

Norway

Article 5 of the Constitution of Norway states: "The King's person is sacred; he cannot be censured or accused. The responsibility rests with his Council."[17] Accordingly, the monarch cannot be prosecuted or sued in his or her personal capacity, but this immunity does not extend to the state as such.

Philippines

Article XVI, Section 3 of the Philippines Constitution states: "The State may not be sued without its consent."[18]

Spain

The Spanish monarch is personally immune from prosecution for acts committed by government ministers in the King's name, according to Title II, Section 56, Subsection 3 of the Spanish Constitution of 1978.[19][20]

The Person of the King of Spain is inviolable and shall not be held accountable. His acts shall always be countersigned in the manner established in section 64. Without such countersignature they shall not be valid, except as provided under section 65(2).[19][20][21]

At the time of the June 2014 abdication of King Juan Carlos the Spanish constitution did not state whether an abdicated monarch retains his legal immunity,[22] but the government was planning to make changes to allow this.[23] Legislation has been passed, although unlike his previous immunity, the new legislation does not completely shield the former sovereign. Juan Carlos must answer to the supreme court, in a similar type of protection afforded to many high-ranking civil servants and politicians in Spain. The legislation stipulates that all outstanding legal matters relating to the former king be suspended and passed "immediately" to the supreme court.[24]

Sri Lanka

By the Constitution of Sri Lanka, the President of Sri Lanka has sovereign immunity.

Sweden

Article 7, Chapter 5, of the Swedish Instrument of Government states: "The King may not be prosecuted for his actions. Nor may a Regent be prosecuted for his actions as Head of State." This only concerns the King as a private person, since he does not appoint the government, nor do any public officials act in his name. It does not concern other members of the Royal Family, except in such cases as they are exercising the office of Regent when the King is unable to serve. It is a disputed matter among Swedish constitutional lawyers whether the article also implies that the King is immune against lawsuits in civil cases, which do not involve prosecution.

Singapore

The President of Singapore does to a certain extent have sovereign immunity subjected to clause 22k(4).(See Part V under government regarding the President of Singapore)

United Kingdom

Immunity in proceedings

Historically, the general rule in the United Kingdom has been that the Crown has never been able to be prosecuted or proceeded against in either criminal or civil cases.[25] The only means by which civil proceedings could be brought were:

The position was drastically altered by the Crown Proceedings Act 1947 which made the Crown (when acting as the government) liable as of right in proceedings where it was previously only liable by virtue of a grant of a fiat.[26] With limited exceptions, this had the effect of allowing proceedings for tort and contract to be brought against the Crown.[26] Proceedings to bring writs of mandamus and prohibition were always available against ministers, because their actions derive from the royal prerogative.

Criminal proceedings are still prohibited from being brought against the UK government unless expressly permitted by Crown Proceedings Act.[27]

As the Crown Proceedings Act only affected the law in respect of acts carried on by or on behalf of the UK government, the monarch remains personally immune from criminal and civil actions.[28] However, civil proceedings can, in theory, still be brought using the two original mechanisms outlined above – by petition of right or by suit against the Attorney-General for a declaration.[29]

Other immunities

The monarch is immune from arrest in all cases; members of the royal household are immune from arrest in civil proceedings.[30] No arrest can be made "in the monarch's presence", or within the "verges" of a royal palace. When a royal palace is used as a residence (regardless of whether the monarch is actually living there at the time), judicial processes cannot be executed within that palace.[31]

The monarch's goods cannot be taken under a writ of execution, nor can distress be levied on land in their possession. Chattels owned by the Crown, but present on another's land, cannot be taken in execution or for distress. The Crown is not subject to foreclosure.[32]

United States

Federal sovereign immunity

In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party.[33] The United States as a sovereign is immune from suit unless it unequivocally consents to being sued.[34] The United States Supreme Court in Price v. United States observed: "It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it."[35]

State sovereign immunity

In Hans v. Louisiana (1890), the Supreme Court of the United States held that the Eleventh Amendment (1795) re-affirms that states possess sovereign immunity and are therefore generally immune from being sued in federal court without their consent. In later cases, the Supreme Court has strengthened state sovereign immunity considerably. In Blatchford v. Native Village of Noatak (1991), the court explained that

we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention." [Citations omitted.]

In Alden v. Maine (1999), the Court explained that while it has

sometimes referred to the States’ immunity from suit as "Eleventh Amendment immunity[,]" [that] phrase is [a] convenient shorthand but something of a misnomer, [because] the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment. Rather, as the Constitution's structure, its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.

Writing for the Court in Alden, Justice Anthony Kennedy argued that in view of this, and given the limited nature of congressional power delegated by the original unamended Constitution, the court could not "conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers."

However, a "consequence of [the] Court's recognition of preratification sovereignty as the source of immunity from suit is that only States and arms of the State possess immunity from suits authorized by federal law." Northern Insurance Company of New York v. Chatham County (2006 emphases added). Thus, cities and municipalities lack sovereign immunity, Jinks v. Richland County (2003), and counties are not generally considered to have sovereign immunity, even when they "exercise a 'slice of state power.'" Lake Country Estates, Inc. v. Tahoe Regional Planning Agency (1979). Nor are school districts, per Mt. Healthy City School District Board of Education v. Doyle (1977).

International law

Sovereign immunity is available to countries in international court, but if they are acting more as a contracting body (like by making agreements with regard to extracting oil and selling it), sovereign immunity may not be available.

Under customary international law, countries are normally immune from legal proceedings in another state.[36] The US recognizes the concept under the 1976 Foreign Sovereign Immunities Act.

On 3 February 2012, the International Court of Justice ruled that ius cogens relating to international humanitarian law does not prevail confronting state sovereign immunity in Case Germany v. Italy, Greece.[37]

See also

References

  1. ↑ Herbert Broom, A Collection of Legal Maxims, Classified and Illustrated, 23 (London, A. Maxwell and Son 1845).
  2. 1 2 Henderson v Defence Housing Authority [1997] HCA 36, 190 CLR 410, discussed in "The Commonwealth's Implied Constitutional Immunity From State Law - Legal Briefing Number 36". Australian Government Solicitor. 30 August 1997.
  3. ↑ Residential Tenancies Act 1987 (NSW), since replaced by the Residential Tenancies Act 2010 (NSW)
  4. ↑ Bropho v State of Western Australia [1990] HCA 24, (1990) 171 CLR 1 (20 June 1990)
  5. ↑ Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited [2007] HCA 38 (29 August 2007)
  6. ↑ Legal Department of the House of Representatives, with the collaboration of Mr A. MacLean (January 2009). "The Belgian Constitution" (PDF). Retrieved 2009-05-31.
  7. ↑ "Constitution Bhutan" (PDF). Retrieved 18 October 2014.
  8. ↑ http://www.ag.gov.bc.ca/ajo/down/statutory_immunity.pdf
  9. ↑ http://www.law.ualberta.ca/alri/docs/fr071.pdf
  10. ↑ http://www.duhaime.org/LegalResources/TortPersonalInjury/LawArticle-77/Government-Liability.aspx
  11. ↑ Gauthier v The King 1918 CanLII 85 at p. 194, [1918] 56 SCR 176 (5 March 1918), Canada)
  12. ↑ Walker, Janet. "Interprovincial Sovereign Immunity Revisited". Osgoode Hall Law Journal. 35 (2): 379–397.
  13. 1 2 Folketinget (2009-08-06). "Unofficial translation of the Constitutional Act of Denmark" (PDF).
  14. ↑ [1972] 1 IR 241
  15. ↑ "The Italian Constitution" (PDF). The official website of the Presidency of the Italian Republic.
  16. ↑ Lawyerment - Document Library - Laws of Malaysia - Constitution
  17. ↑ The Constitution of Norway in English Retrieved 21 November 2006
  18. ↑ http://www.lawphil.net/consti/cons1987.html
  19. 1 2 Título II. De la Corona, Wikisource
  20. 1 2 The Royal Household of H.M. The King website
  21. ↑ Original: La persona del Rey de España es inviolable y no está sujeta a responsabilidad. Sus actos estarán siempre refrendados en la forma establecida en el artículo 64, careciendo de validez sin dicho refrendo, salvo lo dispuesto en el artículo 65,2.
  22. ↑ Ellakuría, Iñaki (3 June 2014). "El Rey perderá su inviolabilidad tras la abdicación pero puede pasar a ser aforado [The King will lose his immunity after abdicating but could keep it]". La Vanguardia. Retrieved 5 June 2014.
  23. ↑ "Spain will have two kings and two queens". Retrieved 14 June 2014.
  24. ↑ "The guardian". Retrieved 5 August 2014.
  25. ↑ Halsbury's Laws of England, volume 12(1): "Crown Proceedings and Crown Practice", paragraph 101
  26. 1 2 Halsbury's Laws of England, volume 8(1): "Constitutional Law and Human Rights", paragraph 382
  27. ↑ Sunkin, Maurice (2003). "Crown immunity from criminal liability in English law". Public Law (Winter 2003): 716–729.
  28. ↑ Halsbury's Laws of England, volume 12(1): "Crown and Royal Family", paragraph 47
  29. ↑ Halsbury's Laws of England, volume 12(1): "Crown and Royal Family", paragraph 56
  30. ↑ Halsbury's Laws of England, volume 12(1): "Crown and Royal Family", paragraph 52
  31. ↑ Halsbury's Laws of England, volume 12(1): "Crown and Royal Family", paragraph 53
  32. ↑ Halsbury's Laws of England, volume 12(1): "Crown and Royal Family", paragraph 54
  33. ↑ Zoldan, Evan (2006). "The King is Dead, Long Live the King!: Sovereign Immunity and the Curious Case of Nonappropriated Fund Instrumentalities". Conn. L. Rev. 38: 459–60.
  34. ↑ United States v. Mitchell, 445 U.S. 535, 538 (1980)
  35. ↑ Price v. United States, 174 U.S. 373, 375-76 (1899)
  36. ↑ Akehurst's modern introduction to international law, by Peter Malanczuk, Michael Barton Akehurst, Routledge 7 ed., 1997, ISBN 0-415-11120-X, Page 118
  37. ↑ Immunité juridictionelles de l'Etat (Allemagne, Italie, Grèce)

External links

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