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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 kings (or queen) can do no wrong. In many cases, governments have waived this immunity to allow for suits; in some cases, an individual may technically appear as defendant on the state's behalf.

In the Middle Ages

Pope Gelasius I is generally regarded as the first pope who established sovereign immunity as a political principle, as a means to protect the sovereign pontiff and Holy See from trials and persecutions and also to build political alliances with kings and emperors.

There are two powers, august Emperor, by which this world is chiefly ruled, namely, the sacred authority of the priests and the royal power. Of these that of the priests is the more weighty, since they have to render an account for even the kings of men in the divine judgment. You are also aware, dear son, that while you are permitted honorably to rule over human kind, yet in things divine you bow your head humbly before the leaders of the clergy and await from their hands the means of your salvation. In the reception and proper disposition of the heavenly mysteries you recognize that you should be subordinate rather than superior to the religious order, and that in these matters you depend on their judgment rather than wish to force them to follow your will.

In constitutional monarchies

In a constitutional monarchy 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.

Belgium

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

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. 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.

Malaysia

In Malaysiamarker, 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.

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.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.

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).

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.

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.

United Kingdom

The above position was drastically altered for the United Kingdommarker by the Crown Proceedings Act 1947 which made the government generally liable, with limited exceptions, in tort and contract. Even before this time it was possible to claim against the Crown with the Attorney-General's fiat (i.e., permission.) This was called a petition of right. Alternatively, Crown servants could be sued in place of the Crown (and the Crown as a matter of course paid). Further, mandamus and prohibition were always available against ministers because they derive from the prerogative. However, even after the Crown Proceedings Act 1947, lawsuits against the Sovereign in his or her personal, private capacity are still inadmissible in British law.

In the United States

In the United Statesmarker, 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 Statesmarker 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

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

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.

Further reading

Michael J. Kelly, Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide & The Trials of Slobodan Milosevic and Saddam Hussein (Peter Lang 2005).

References

  1. Duo sunt
  2. Lawyerment - Document Library - Laws of Malaysia - Constitution
  3. The Constitution of Norway in English Retrieved 21 November 2006
  4. Título II. De la Corona, Wikisource
  5. The Royal Household of H.M. The King website
  6. Akehurst's modern introduction to international law, by Peter Malanczuk, Michael Barton Akehurst, Routledge 7 ed., 1997, ISBN:041511120X, Page 118


See also




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