Alan F. Paguia*

Every citizen is entitled to the protection of his life, liberty and property.

     This protection is guaranteed by the Bill of Rights under Article Ill of the Constitution as against the vast powers of government which are some-times abused by the public officials who wield them.

     To effectively protect these individual rights, Article 32 was included in the Civil Code. Article 32 reads: 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 publica-tion;
  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 the equal protection of the laws;
  9. The right to be secure in one's person, house, papers, and effects against unreasonable seizures;
  10. The liberty of abode and of changing the same;
  11. The privacy 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 gov-ernment 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 witnesses 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 such a 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 inde-pendently 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. The obvious purpose of this codal provision, according to the Supreme Court in Aberca v. Ver, is "to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield -- borrowing the words of Chief Justice Claudio Teehankee -- to the law of 4orce rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to demo-cratic principles and to the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the community." In the same case, the Court duly noted that: "Only judges are excluded from liability under the said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute." According to the Code Commission that drafted the Civil Code, "The creation of an absolutely separate and independent civil action for violation of civil liberties is essential to the effective maintenance of democracy." It will be observed that Article 32 actually contains three (3) rules which identify who are liable under the said provision. These are: the GENERAL RULE, the EXCEPTION, and the EXCEPTION TO THE EXCEPTION. The GENERAL RULE is that all persons are liable. The EXCEPTION is that a judge is not liable. The EXCEPTION TO THE EXCEPTION is that a judge is liable when his act or omission constitutes a criminal offense. In order, therefore, to hold a judge liable under Art. 32, the complainant must duly allege and prove that the questioned act or omission has the elements of a criminal offense. Each element must be duly alleged. Otherwise, the complaint may be dismissed for lack of cause of action. It will be observed that the EXCEPTION TO THE EXCEPTION is actually a reversion to the GENERAL RULE of liability which may be proven by mere preponderance of evidence. The EXCEPTION TO THE EXCEP-TION remains a civil action that is absolutely separate and independent from any other action. Chairman Jorge Bocobo explains that: "The underlying purpose of the principle under consideration is to allow the citizen to enforce his rights in a private action brought by him, regardless of the action of the State Attorney. It is not conducive to civil spirit and to individual self-reliance and initiative to habituate the citizens to depend upon the government for the vindication of their own private rights, It is true that in many cases referred to in the provision cited, a criminal prosecution is proper, but it should be remembered that while the State is the complainant in the criminal case, the injured individual is the one most concerned because it is he who has suffered directly. He should be permitted to demand reparation for the wrong which peculiarly affects him". "In England and the United States, the individual may bring an action in tort for assault and battery, false imprisonment, libel and slander, deceit, trespass, malicious prosecution, and other acts which also fall within the criminal statutes. This independent civil action is in keeping with the spirit of individual initiative and the intense awareness of one's individual rights in those countries." Something of that same sense of self-reliance in the enforcement of one's rights is sought to be nurtured by the Project Civil Code. Freedom and civil courage thrive best in such an atmosphere, rather than a paternal-istic system of law." Now then, it may be asked: Does the term "judge" under Art. 32 include a Supreme Court Justice? The answer must necessarily be either yes or no. If the answer is yes, then a Supreme Court Justice is civilly liable when his act or omission constitutes a violation of the Penal Code or other penal statute --following the rule of EXCEPTION TO THE EXCEPTION. If the answer is no, meaning a Supreme Court Justice is not within the EXCEPTION, then the GENERAL RULE will apply. In such case, a Supreme Court Justice is civilly liable and in worse situation this time because, unlike in the EXCEPTION TO THE EXCEPTION, his civil liability is demandable even if the questioned act or omission is not a criminal offense. A Supreme Court Justice is therefore, civilly liable under Art. 32 of the Civil Code. In Urbano v. Chavez , the Supreme Court stated that: "The Court is aware of the possibility of public officials being haled to court in an endless array of civil suits. With or without this pronouncement, and considering the nature of a public office in the Philippines, vis--vis the litigious character of most Filipinos as demonstrated by the number of cases filed in the courts daily, this scenario is a fact that must be accepted. The possibility of being brought to court is an occupational hazard of both the public officer and the citizen, in the same way that every occupation has its own hazards to reckon with. This grim reality notwithstanding. public officials should know that nobody is above the law." In the said case, the Solicitor General was the defendant in a civil suit for damages arising from allegedly defamatory remarks uttered by him. The issue was whether the Office of the Solicitor General had authority to represent him. The Supreme Court ruled that the OSG is not authorized to represent a public official at any stage of a criminal case. The court clarified that the rule applies as well to a public official who is haled to court on a civil suit for damages arising from a felony allegedly committed by him. The court explained that any pecuniary liability he may be held to account for on the occasion of such civil suit is for his own account. The state is not liable for the same. A fortiori, the OSG likewise has no authority to represent him in such a civil suit for damages. And to bring home the point more emphatically, the Court categorically ruled that their said pronouncement "applies to all public officials and employees in the executive, legislative and judicial branches of the Gov-ernment." Based on this ruling, it would seem that a Supreme Court Justice who is sued under Art. 32 of the Civil Code cannot be represented by the OSG. According to the case of In Re: Raul Gonzales, a Member of the Supreme Court must first be removed by impeachment before he may be held to answer either: a. criminally, or b. administratively (by disbarment proceedings) "for any wrong or misbehavior that may be proven against him in appropriate proceedings." To allow such Member who under the Constitution may be removed from office SOLELY by impeachment, (a) to be charged criminally while holding his office with an offense that carries the penalty of removal from office, or (b) to be charged administratively (by disbarment proceedings) during his incumbency -- "would in effect be to circumvent and hence run afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment." The Court explained that "without the protection of this rule, Members of the Supreme Court would be vulnerable to all manners of charges which might be brought against them by unsuccessful litigants or their lawyers or by other parties who, for any number of reasons might seek to affect the exercise of judicial authority by the Court." Does this doctrine proscribe a civil suit against a Supreme Court Justice under Art. 32 of the civil code? It clearly does not seem so. While the doctrine categorically dealt with (a) criminal, or (b) administrative/disbarment charges, it totally omitted touching upon an independent civil action under Art. 32 of the Civil Code. The reason is not necessarily difficult to discern. While a criminal or disbarment proceeding against a Supreme Court Justice may lead to a circumvention of the rule on impeachment, the same is not true with a civil action for damages under Art. 32 which only leads to a liability for damages ---- not removal or disqualification -- on the part of the defendant Justice. The civil liability is personal to the defendant Justice because his criminal offense is clearly beyond the scope of his authority as a Member of the Court. The act of a member is not necessarily always the act of the Court. It is only when the act is performed in accordance with the Constitution and the laws that the same can be considered as an act of the Court. According to one Senator of the Republic, the Supreme Court stands today as "a potential tyrant under our Constitutional system." There is here room for disagreement. Within its constitutional authority, the Su-preme Court speaks for the State. "Inasmuch as the State can speak and act only by law, whatever it does say and do must be lawful, and that which is unlawful is not the word or deed of the State, but is the mere wrong or trespass of those individual persons who falsely speak and act in its name." When there was much force in the executive department, we were warned about the law of force threatening the force of law. If now, there really is much power in the judiciary, it may be apropos to warn ourselves of the law of power threatening the power of law.