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2 Sovereign immunity in republican democracies |
In a constitutional monarchy such as Great Britain, Canada or Australia, the sovereign is the historical origin of the authority which creates the courts and thus the courts have no power to compel the sovereign, their agents and/or servants to be bound by the courts as they were created by the sovereign for the protection of his or her subjects.
Sovereign immunity may be questioned in relation to the sovereign personally (i.e. prosecuting the crown for a crime); no one should be above the law in a society that recognizes the rule of law. Even the accusation of criminal fault on a monarch personally would most certainly precipitate a constitutional crisis calling into question the legitimacy of the legislative system as in British parliamentary systems since the Crown is considered a part of the Parliament, causing it to function properly.
Other aspects of this type of immunity have also been called into question, as governments may use it to prevent a finding of liability for acts that might otherwise be actionable if performed by private citizens. When the monarch personally, or through an agent, enters into a contract for goods or services, should not the person or company who provides such services receive due compensation or be able to sue for breach of contract? Should not the monarch be bound by principles of contract law like all others? However, it seems reasonable that governments may seek to be immune for prosecution or liability from government acts that are part and parcel of function of government which are created to benefit society as a whole and are thus outside the realm of private law.
The doctrine of sovereign immunity is also used in republican democracies such as the United States and India. In these systems governments or agents of the government may enjoy immunity for various acts, usually limited to acts that emanate from the function of government, and not those acts that would normally come within the ambit of the activities of private citizens such as contractual relations or liability for negligence.
See also: ImpeachmentSovereign immunity in constitutional monarchies
Critique of sovereign immunity
Sovereign immunity in republican democracies