Wednesday, October 3, 2007

Remedies of Human Rights Victims


INTRODUCTION


This paper discusses the various remedies of victims of human rights violations under existing Philippine laws: civil, criminal, and administrative.

"Human rights law practice", unlike in the case of the United States and Europe, is not deemed as a distinct and profitable legal specialization or law practice area among Philippine trial lawyers, most of whom are, as a rule, general law practitioners, except perhaps for MABINI, a group of human rights lawyers led by former Sen. Rene Saguisag, which was formed after the assassination of former Se. Ninoy Aquino, and the FREE LEGAL ASSISTANCE GROUP (FLAG), an old legal aid group created by former Sen. Jose Diokno and former Sen. Lorenzo Tanada and now led by Atty. Jose Manuel Diokno, Atty. Arno Sanidad, Atty. Theodore Te, et. al.



THE REMEDIES OF HUMAN RIGHTS VICTIMS:

A GENERAL DESCRIPTION


Human rights victims have three (3) kinds of legal remedies under existing Philippine laws, to wit:


1. CIVIL - the purpose of which is to secure civil indemnity for the wrong done under the Civil Code and other special laws;

2. CRIMINAL - the purpose of which is to secure penal sanctions against the wrongdoer under the Revised Penal Code and other special laws (mala prohibita); and

3. ADMINISTRATIVE - the purpose of which is to secure the imposition of administrative sanctions against the wrongdoer under the Civil Service Law, the Ombudsman Act, the Code of Ethics for Government Officers and Employees, the Anti-Graft and Corrupt Practices Act, and other special laws applicable to civil servants.



THE CIVIL ASPECT


Chapter 2 (Human Relations), Preliminary Title of the Civil Code (R.A. No. 386, as amended), in relation to Chapter 2, Title XVII (Quasi-Delicts) and Title XVIII (Damages), Book IV, of the Code, contains the basic provisions of the Code on the civil remedies of a human rights victim.



A. THE PRELIMINARY CHAPTER

OF THE CIVIL CODE


The Preliminary Chapter of the Civil Code commands that "every person, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith" (Art. 19); and that "every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same" (Art. 20).

The Code also provides that "any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages" (Art. 21)

It also mandates that "every person who through an act or performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him" (Art. 22); and that "even when an act or event causing damage to another's property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefitted" (Art. 23).

"He who has less in life must have more in law", so goes the maxim. This is reflected in Art. 24 of the Code, which provides that "in all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral, dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection".

The Code concretizes respect for human dignity as a positive law, as it provides, in Art. 25, that "every person shall respect the dignity, personality and peace of mind of his neighbors and other persons xxx".

The most direct provision of the Code on the civil liability of civil servants based on negligence or refusal to perform official duty is found in Art. 27 of the Code, which provides that "any person suffering from material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken."

Art. 27 must be read in conjunction with Art. 34 of the Code, with respect to the civil liability of policemen. The latter article provides that "when a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor." It adds that "the civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action."

On the other hand, the most direct provision of the Code on the civil liability of a person, whether a public official or employee or a private individual, for specific violations of the human rights of another is found in Art. 32 thereof, thus:


"Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:


(1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain a periodical publication;

(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;

(6) The right against deprivation of property without due process of law;

(7) The right to a just compensation when private property is taken for public use;

(8) The right to equal protection of the laws;

(9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures;

(10) The liberty of abode and of changing the same;

(11) The liberty of communication and correspondence;

(12) The right to become a member of associations or societies for purposes not contrary to law;

(13) The right to take part in a peaceable assembly to petition the Government for redress of grievance;

(14) The right to be free from involuntary servitude in any form;

(15) The right of the accused against excessive bail;

(16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf;

(17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make confession, except when the person confessing becomes a State witness;

(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and

(19) Freedom of access to the courts.


In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages,and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.


The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute."


When "defamation, fraud, and physical injuries" result as a consequence of, or incidental to, a human rights violation, Art. 33 of the Code provides that "xxx a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party (which) shall proceed independently of the criminal prosecution,and shall require only a preponderance of evidence."

It is note mentioning that under Art. 28, the Code provides that "unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or high-handed method shall give rise to a right of action by the person who thereby suffers damages." This seems to be the only provision of the Code which bears close proximity to the economic rights of consumers.



B. QUASI-DELICTS


Art. 2176 of the Code provides that "whoever by act or omission cause damage to another, there being fault or negligence, is obliged to pay for the damage done xxx."

Such fault or negligence, "if there is no pre-existing contractual relation between the parties, is called a quasi-delict". (id.)

An action for quasi-delict is also an independent civil action but the plaintiff cannot recover damages twice for the same act or omission of the defendant (Art. 2177).

Under the doctrine of vicarious liability, enunciated in Art. 2180 of the Code, the owners and managers and the employers, inter alia, are liable for damages caused by their employees. The same article also provides that "the State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable."

Art. 2180 must be read in conjunction with Art. 2187, re: the liabilities of manufacturers of foodstuffs, drinks, toilet articles and similar goods; Art. 2190, re: the liabilities of cities and municipalities; and Art. 2191, re: the liabilities of proprietors of buildings and businesses.



THE CRIMINAL ASPECT


A. THE REVISED PENAL CODE


THE CIVIL ASPECT OF THE FELONY. -


Art. 102 and Art. 103 of the Revised Penal Code speak of the subsidiary liability of "innkeepers, tavern keepers and proprietors of establishments" and of "employers, teachers, persons and corporations engaged in any kind of industry" for the felonies committed by their servants, pupils, workmen, apprentices, or employees. This must be read in relation to Art. 2180 of the Civil Code, supra.


Articles 104 to 113 of the Penal Code speak of the coverage of civil liability of a felony and the extinction thereof.

The civil liability established in Articles 100 to 103 of the Penal Code includes restitution, reparation of the damage caused, and indemnification for consequential damages (Art. 104).


SPECIFIC FELONIES COMMITTED BY PUBLIC OFFICERS WHICH HAVE A BEARING ON HUMAN RIGHTS LAW.-


Chapter 1, Title II, Book V of the Penal Code (Crimes Against the Fundamental Laws of the State) provide for the penal sanctions against public officers guilty of arbitrary detention or expulsion; violation of dwelling; prohibition, interruption and dissolution of peaceful meetings; and crimes against religious worship.

Further, Chapters 1 to 6, Title VII, Book V of the Penal Code provide for the penal sanctions against public officers guilty of malfeasance and misfeasance in office, frauds and illegal exactions and transactions, malversation of public funds or property, infidelity of public officers, and other offenses or irregularities by public officers (Arts. 203 to 245).

The other felonies committed by public officers or private persons, which have a bearing on human rights law, may be covered by the rest of the provisions of the Penal Code, depending on the facts of the case, thus:


1. Crimes against persons (Chapters 1 to 2, Title VIII, Book II);

2. Crimes against personal liberty and security (Chapters 1 to 3, Title IX, Book II);

3. Crimes against property (Chapters 1 to 10, Title X, Book II), crimes against chastity (Chapters 1 to 5, Title XI, Book II);

4. Crimes against honor (Chapter 1 to 2, Title XIII, Book II); and

5. Quasi offenses (Title XIV, Book II).



PROCEDURAL REMEDIES FOR FELONIES. -


Under Sec. 4 of P.D. 1606, as amended by P.D. 1629, B.P. Blg. 129, P.D. 1861, E.O. 101, and E.O. 184, the Sandiganbayan has jurisdiction over cases committed by public officers and employees involving:


1. Violations of R.A. 3019, as amended (Anti-Graft and Corrupt Practices Act);

2. Violations of R.A. 1379;

3. Violations of Chapter II, Section 2, Title VII of the Penal Code (malfeasance and misfeasance in office);

4. Other offenses or felonies committed by public officers and employees in relations to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision coreccional.

It exercises appellate jurisdiction over Regional Trial Courts and Municipal Trial Courts over such cases.


The preliminary investigations of such crimes are conducted by the Office of the Ombudsman under the Ombudsman Act of 1989 (R.A. No. 6770, in relation to E.O. No. 243 and E.O. No. 244 and Secs. 5 to 14, Art. XI of the 1987 Constitution (Accountability of Public Officers) and Sec. 6, Art. XIII of the 1973 Constitution (Tanodbayan).

Some of the major cases of the Supreme Court upholding the decisions and jurisdiction of the Sandiganbayan are the following: "Nunez v. SB", 111 SCRA 433 (constitutionality of PD 1606); "Lecaroz v. SB", 128 SCRA 324 (jurisdiction of SB); "Penaverde v. SB, 124 SCRA 345 (appeals from SB to Supreme Court, only questions of law); "De Guzman v. People", 119 SCRA 337 (SB rules of procedure); "Deloso v. SB", 173 SCRA 409 (preventive suspension); "Peredes v. SB", Jan. 28, 1991 (habeas corpus vs. SB); and "Cabatingan v. SB", 102 SCRA 187 (probation).



B. THE ANTI-GRAFT AND CORRUPT PRACTICES ACT


R.A. 3019, as amended, known as the Anti-Graft and Corrupt Practices Act, defines "corrupt practices" (see Sec. 3 thereof). Human rights violations may come under this definition in appropriate cases.

It has undergone a series of amendments by various laws: RA 3047, PD 677, PD 1288, BP 195, .

R.A. No. 3019 must be read in conjunction with R.A. No. 1379 (forfeiture of ill-gotten wealth) and other anti-graft laws, i.e., PD 46 (penalty for receiving gifts on any occasion), PD 749 (immunity to bribe givers), and PD 871 (increasing the penalty for bribery).

Some of the major Supreme Court decisions touching on R.A. No. 3019 are: "Garciano v. Oyao", 102 SCRA 195; "Jaravata v. SB", 127 SCRA 363; "Bernabe v. SB", 160 SCRA 682; "Gallego v. SB", 155 SCRA 793; "Luciano v. Estrella", 34 SCRA 769; "Macariola v. Asuncion", 114 SCRA 77; "IHMI v. CA", 90 SCRA 512; "Halili v. CIR", 136 SCRA 112; and Razon Inc. v. PPA", 151 SCRA 233.



C. THE OMBUDSMAN ACT OF 1989


As earlier stated, the preliminary investigations of the crimes cognizable by the Sandiganbayan under R.A. No. 3019 and related bribery and corruption laws are conducted by the Office of the Ombudsman under the Ombudsman Act of 1989 (R.A. No. 6770, in relation to E.O. No. 243 and E.O. No. 244 and Secs. 5 to 14, Art. XI of the 1987 Constitution (Accountability of Public Officers) and Sec. 6, Art. XIII of the 1973 Constitution (Tanodbayan).

But this is not the sole power of the Ombudsman. It may investigate human rights crimes committed by civil servants and public officers. As provided in Secs. 12 to 13 of Art. XI of the 1987 Constitution, it may perform, inter alia, the following powers:


1. "Investigate xxx any act or omission of any public official, employee, office, or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient" (Sec. 13, Par. 1, Art. XI);

2. "Direct xxx any public official or employee xxx to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties" (id., Par. 2);


3. "Recommend xxx (the) removal, suspension, demotion, fine, censure, or prosecution xxx" of a public officer or employee id., Par. 3);

4. "Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standard of ethics and efficiency" (id., Par. 7).

R.A. No. 6770 is known as the OMBUDSMAN ACT OF 1989. It grants the Ombudsman the power to act on criminal and administrative complaints against public officers and employees, human rights violations included sub silencio. (See Sec. 15 and Sec. 19, R.A. No. 6770). It may issued preventive suspension orders good for a maximum period of six (6) months, without pay (Sec. 24, id.). In administrative proceedings for violation of P.D. 807 (Civil Service Law), it shall follow the penalties therein set forth. It may administratively suspend a public officer or employee up to one (1) year or dismiss him (Sec. 25, id.).

Some of the major Supreme Court cases dealing with the jurisdiction and powers of the Ombudsman are the following: "Inting v. Tanodbayan", 97 SCRA 494; "Orap v. SB", 139 SCRA 252; "Quimpo v. Tanodbayan", 146 SCRA 137; "Tatad v. Tanodbayan", 159 SCRA 70; "In re: Raul M. Gonzales", 160 SCRA 771; and "BF v. Purisima", 161 SCRA 576.



D. THE CODE OF ETHICS FOR GOVERNMENT

OFFICERS AND EMPLOYEES


R.A. No. 6713 is known as the CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES. Victims of human rights violations, by way of administrative proceedings, may invoke this law, among other laws.

Sec. 7 of the said law speaks of the prohibited acts and transactions of public officers and employees, e.g. financial and material interest, outside employment and other activities related thereto, disclosure and/or misuse of confidential information, solicitation

and acceptance of gifts. Section 9 thereof speaks of conflict of interest and divestment.

The penal provision of the law is found in Sec. 11 thereof: maximum imprisonment of five (5) years and a maximum fine of P5,000.00 or both at the discretion of the court, in the proper cases.

Violations of this law may be administratively investigated by the concerned agency where the civil servant is connected, viz PD 807, or by the Ombudsman under R.A. No. 6770. Its criminal aspect may be investigated by the Ombudsman under RA 6770.



THE ADMINISTRATIVE ASPECT

Presidential Decree No. 807 is known as the CIVIL SERVICE LAW. Its administrative offenses and penalties must be read in conjunction with Book V of E.O. No. 292 (Administrative Code of 1987).

The Civil Service Commission has issued its OMNIBUS CIVIL SERVICE RULES implementing the foregoing laws.

The CSC is a constitutional commission governed by Art. IX (B) of the 1987 Constitution.

Human rights violations may be filed with the CSC, thru the agency where the respondent civil servant is connected, by way of an administrative case, and if he is found guilty of an administrative offense under PD 807 and EO 292, the proper penalties may be imposed on him, dismissal included.



By:


MANUEL J. LASERNA JR.

c. 1998


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