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Monday, June 7, 2010

Concept Of Sovereign Immunity

Sovereign immunity, or crown immunity, is a type of immunity that in common law jurisdictions traces its origins from early English law. Generally speaking it is the doctrine that the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution; hence the saying, "the king (or queen) can do no wrong". In many cases, states have waived this immunity to allow for suits; in some cases, an individual may technically appear as defendant on the state's behalf.

In constitutional monarchies


There is no automatic Crown immunity in Australia, although the Crown may be explicitly or implicitly immune from any particular statute. The Crown's immunity may also apply to other parties in certain circumstances: see Australian Competition and Consumer Commission v Baxter Healthcare.


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


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. Accordingly themonarch cannot be sued in his or her personal capacity, but this immunity from lawsuits does not extend to the state as such.

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. See pope#International position.


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.


The 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 immunmity 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. But does the elected executive constitute the sovereign in Nigeria? it seems that the judiciary will be better described as the sovereign in Nigeria if the sovereign is the person who in the last resort is able to decide his own competence and that of other contender in the event of any conflict of authority. Failing this, the constitution as an expression of the will of nigerians is the sovereign.It is important to note that the judiciary has absolute immunity for actions decisions taken in their official capacity.


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.[5] 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.


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.
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.


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.

United Kingdom

The position was drastically altered for the United Kingdom by the Crown Proceedings Act 1947 which made the government generally liable, with limited exceptions, in tort and contract. Even before then it was possible to claim against the Crown with the Attorney-General's fiat (i.e., permission) (a petition of right). Alternatively, Crown servants could be sued in place of the Crown, and the Crown as a matter of course paid any sums due. Further, mandamus and prohibition were always available against ministers because they derive from the royal prerogative.
However, as of 2010 lawsuits against the sovereign in his or her personal and private capacity remain inadmissible in British law. The State Immunity Act 1978 regulates the extent to which foreign states are subject to the jurisdiction of British courts.
In Iceland
According to article 11 of the constitution of Iceland the president is not accountable and cannot be prosecuted without parliament's consent.
In the United States

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.
State sovereign immunity

In Hans v. Louisiana, the Supreme Court of the United States held that the Eleventh Amendment 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, 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, 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, and 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 pre-ratification 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 (emphases added). Thus, cities and municipalities lack sovereign immunity, Jinks v. Richland County, 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.
International Law
Sovereign immunity is available to countries in international court but if they are acting more as a contracting body (example: making agreements in regards to extracting oil and selling it), then sovereign immunity may not be available to them.
Under international law, and subject to some conditions, countries are immune from legal proceedings in another state. This stems from customary international law. The US recognizes this concept under the Foreign Sovereign Immunities Act.

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