Sunday, October 13, 2013

Sovereign immunity

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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.
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, although the Crown may be explicitly or implicitly immune from any particular statute. There is a rebuttable presumption that the Crown is not bound by a statute: Bropho v State of Western Australia. The Crown's immunity may also apply to other parties in certain circumstances: see Australian Competition and Consumer Commission v Baxter Healthcare.

Belgium

Article 88 of the Constitution of Belgium states: The King’s person is inviolable; his ministers are accountable.[1]

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.[2] 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."[3] 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."[4]
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.[5]

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

Holy See

Main article: Pope#International position
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.[7]

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:[8]
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.[citation needed] The revised version says that the trial hearings have to be scheduled in agreement between the Judge and the Government.[citation needed]

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.[9]

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.[10] 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.

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.[11][12]
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.[11][12]
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).[11][12]

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).[1](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.[13] The only means by which civil proceedings could be brought were:
  • by way of petition of right, which was dependent on the grant of the royal fiat (i.e. permission);
  • by suits against the Attorney-General for a declaration; or
  • by actions against ministers or government departments where an Act of Parliament had specifically provided that immunity be waived.
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.[14] With limited exceptions, this had the effect of allowing proceedings for tort and contract to be brought against the Crown.[14] Proceedings to bring writs of mandamus and prohibition were always available against ministers, because their actions derive from the royal prerogative.[citation needed]
Criminal proceedings are still prohibited from being brought against the UK government unless expressly permitted by Crown Proceedings Act.[15]
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.[16] 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.[17]

Other immunities

The monarch is immune from arrest in all cases, and members of the royal household are also immune from arrest in civil proceedings.[18] 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.[19]
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.[20]

United States

Main article: Sovereign immunity in the 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.

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, 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 (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).

International law

Sovereign immunity is available to countries in international court. But if they are acting more as a contracting body (example: making agreements with regard 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.[21] The US recognizes this concept under the Foreign Sovereign Immunities Act (1976).
On 3 February 2012 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.[22]

See also

References

  1. Jump up ^ Legal Department of the House of Representatives, with the collaboration of Mr A. MacLean (2009-01). "The Belgian Constitution". Retrieved 2009-05-31.
  2. Jump up ^ http://www.ag.gov.bc.ca/ajo/down/statutory_immunity.pdf
  3. Jump up ^ http://www.law.ualberta.ca/alri/docs/fr071.pdf
  4. Jump up ^ http://www.duhaime.org/LegalResources/TortPersonalInjury/LawArticle-77/Government-Liability.aspx
  5. Jump up ^ http://www.ohlj.ca/archive/articles/35_2_walker.pdf
  6. Jump up ^ Folketinget (2009-08-06). "Unofficial translation of the Constitutional Act of Denmark".
  7. Jump up ^ [1972] 1 IR 241
  8. Jump up ^ "The Italian Constitution". The official website of the Presidency of the Italian Republic.
  9. Jump up ^ Lawyerment - Document Library - Laws of Malaysia - Constitution
  10. Jump up ^ The Constitution of Norway in English Retrieved 21 November 2006
  11. ^ Jump up to: a b c Título II. De la Corona, Wikisource
  12. ^ Jump up to: a b c The Royal Household of H.M. The King website
  13. Jump up ^ Halsbury's Laws of England, volume 12(1): "Crown Proceedings and Crown Practice", paragraph 101
  14. ^ Jump up to: a b Halsbury's Laws of England, volume 8(1): "Constitutional Law and Human Rights", paragraph 382
  15. Jump up ^ Sunkin, Maurice (2003). "Crown immunity from criminal liability in English law". Public Law (Winter 2003): 716–729. |accessdate= requires |url= (help)
  16. Jump up ^ Halsbury's Laws of England, volume 12(1): "Crown and Royal Family", paragraph 47
  17. Jump up ^ Halsbury's Laws of England, volume 12(1): "Crown and Royal Family", paragraph 56
  18. Jump up ^ Halsbury's Laws of England, volume 12(1): "Crown and Royal Family", paragraph 52
  19. Jump up ^ Halsbury's Laws of England, volume 12(1): "Crown and Royal Family", paragraph 53
  20. Jump up ^ Halsbury's Laws of England, volume 12(1): "Crown and Royal Family", paragraph 54
  21. Jump up ^ Akehurst's modern introduction to international law, by Peter Malanczuk, Michael Barton Akehurst, Routledge 7 ed., 1997, ISBN 0-415-11120-X, Page 118
  22. Jump up ^ Immunité juridictionelles de l'Etat (Allemagne, Italie, Grèce)
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