CITIZEN’S REMEDIES AGAINST OFFICIAL ABUSES

Abstract of Chapter 7 of the book ANTI-GRAFT GUIDEBOOK

by S. B. Ursal

Director, Board of Trustees - Transparency International-Philippines Chapter

Indeed it is such kind of attitude of helplessness among the citizenry that encourages even more official abuses and graft in government. This chapter attempts to reverse such feeling of apathy and exhorts citizens to fight back corruption by invoking their rights under the law, instead of folding their arms and relying on people in government agencies to restore their sense of morality, and those in anti-graft agencies to prosecute crooked officials.

Philippine laws provide for the following remedies to citizens who are victims of abuses by public officials:

I. IMPEACHMENT AS REMEDY

1.0 Who can be Impeached. Impeachment is a remedy for removing from office the President, the Vice-President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman. Any citizen may file a verified complaint for impeachment upon a resolution of endorsement by any member of the House of Representatives.

1.01 Grounds for impeachment.- The grounds for impeachment are: (a) culpable violation of the Constitution, (b) treason, (c) bribery, (d) graft and corruption, (e) other high crimes, and (f) betrayal of public trust.

1.02 The procedure in brief.- The Committee of the House of Representatives to which the complaint is filed conducts hearings, and by majority vote of all its members submits its report to the House. A vote of at least 1/3 of all the members of the House is necessary to affirm a favorable resolution of the Committee.

Thereafter, the impeachment trial by the Senate shall proceed. No impeachment proceedings shall be initiated against the same official more than once within a period of one year. The Senate has the sole power to try and decide all cases of impeachment.

II. RECALL OF ELECTIVE LOCAL OFFICIALS

2.0 Recall as remedy against official abuse. Recall is a process of removing any elective provincial, city, municipal, or barangay official by the registered voters of the local government unit concerned for loss of confidence.

2.01 How ‘recall’ is initiated.- There are two ways of initiating recall proceedings. One is by a preparatory recall assembly convened for the purpose where the recall of an elective provincial, city or municipal official is initiated through a resolution adopted by a majority of all members of the assembly. The other is upon petition of at least 25% of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected.

2.02 Election recall.- Upon the filing of a valid resolution or petition for recall, the Commission on Election sets the date of the election on recall. Any elective local official may be subject of recall election for loss of confidence only once during his term of office.

III. CIVIL ACTION FOR DAMAGES

3.0 Right to recover damages. Philippine laws contain provisions empowering citizens to fight back abuses of people in government by granting them the right to recover damages for material or moral loss suffered due to the fault or negligence of public officers and employees, either from them or in certain cases from the State.

3.01 Who are victims of official abuses.- The following, among others, are considered victims of official abuses who can claim damages before the courts: (a) Those who suffered material or moral loss because a public officer or employee refuses or neglects, without just cause, to perform his official duty; (b) Those whose rights and liberties as guaranteed by the constitution and the laws have been obstructed, defeated, violated, impeded, or impaired by any public officer or employee; (c) Those who suffered injury, loss or damage caused by any public officer who showed bad faith, malice or gross negligence in the performance of his official duties; (d) Those who suffered damages caused by any public officer who, without just cause, neglects to perform a duty within a period fixed by law or regulation or within a reasonable period if none is fixed.

3.02 Kinds of “damages”.- “Damage” pertains to the detriment, injury, or loss which is occasioned by reason of fault of another in the property or person. It includes any and all damages that a human being may suffer in any and all the manifestations of his life: physical or material, moral or psychological, mental or spiritual, financial, economic, social, political, and religious. Under the Civil Code, damages may be: (a) Actual or compensatory; (b) Moral; (c) Nominal; (d) Temperate or moderate; (e) Liquidated; or (f) Exemplary or corrective.

3.02.1 Actual or compensatory damages.- The adequate compensation one is entitled to, is only for such pecuniary loss suffered by him as he has duly proved. If the loss is due to the fault or negligence of a public officer, he shall be liable for all damages that are the natural and probable consequences of the act or omission complained of.

3.02.2 Moral damages.- Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the offending public officer’s wrongful act or omission.

3.02.3 Nominal damages.- Nominal damages are awarded in order that a right of the offended party, which has been violated or invaded by the public officer, may be vindicated or recognized, and not for the purpose of indemnifying the former for any loss suffered by him.

3.02.4 Temperate or moderate damages.- Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be proved with certainty.

3.02.5 Liquidated damages.- Liquidated damages are those agreed upon by the parties to a contract, to be paid in case of breach thereof.

3.02.6 Exemplary or corrective damages.- Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages. In quasi-delicts, such as those committed by public officers, exemplary damages may be granted if there was gross negligence.

3.03 Legal basis of remedy.- The remedy of civil action for damages springs from the fundamental principle of law that “Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done.” This principle is extended by law to public officers and employees, as follows:

3.04 Right of person suffering loss due to refusal or neglect of public officer to perform duty.- Any person suffering 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 action that may be taken.

3.05 Liability of public officers for violating rights and liberties of persons.- 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 the 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 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 Government for redress of grievances; (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 such 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 above, 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, and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

3.06 Responsibility of State for its agents.- The State is responsible for the damage done by the acts or omission of its special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case the former is obliged to pay for the damage done.

3.07 Liability of Superior Officers: (1) A public officer may be civilly liable for acts done in the performance of his official duties, if there is a clear showing of bad faith, malice or gross negligence. (2) Any public officer who, without just cause, neglects to perform a duty within a period fixed by law or regulation, or within a reasonable period if none is fixed, shall be liable for damages to the private party concerned without prejudice to such other liability as may be prescribed by law. (3) A head of a department or a superior officer may be civilly liable for the wrongful acts, omissions of duty, negligence, or misfeasance of his subordinates, if he has actually authorized by written order the specific act or misconduct complained of.

3.08 Liability of Subordinate Officers: No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful negligent acts done by him which are contrary to law, morals, public policy and good customs, even if he acted under orders or instructions of his superiors.

4.0 Civil action for damages deemed instituted with criminal action. When a criminal action is filed against a public officer, the civil action for damages arising from the offense charged is deemed instituted with the criminal action. The offended party, or party who suffered the damage, may however either waive the civil action, reserve the right to institute it separately, or institute the civil action prior to the criminal action.

5.0 Assistance in filing civil action for damages. One of the reasons why only few victims of official abuses are interested in the aspect of civil action for damages, is the expenses involved. Even if the civil action for the recovery of civil liability is instituted in the criminal action, there might be need to engage the services of counsel to intervene in the prosecution of the offense. This is even more so if a civil action for damages has to be filed separately from the criminal action.

5.01 Legal assistance from Office of the Ombudsman.- A victim of official abuse may file a complaint before the Office of the Ombudsman who shall investigate it, and should it find that the act or omission complained of appears to be illegal, unjust, improper or inefficient, shall thereupon prosecute the same in the proper court. Consequently, the Office of the Ombudsman shall be assisting the complainant not only in the criminal aspect of the case, but in the civil action for damages as well.

5.02 Legal assistance from the Public Attorney’s Office.- A victim of official abuse who is an indigent may request for legal assistance from the Public Attorney’s Office (PAO). Among the activities of the PAO is to represent indigents or immediate members of their family in all civil, criminal, labor and administrative cases.

5.03 Assistance from the Office of the Citizen’s Counselor.- Under R.A. No. 6028 (1969) there is created the Office of the Citizen’s Counselor which seeks to promote higher standards of efficiency and justice in the administration of laws, and secure the right of the people to petition the government for redress of grievances.

5.04 Legal assistance from the Integrated Bar of the Philippines (IBP).- The IBP Vision in Combating Corruption is “to render legal assistance in the prosecution of cases against government officials accused of graft and corruption”, and among its stated strategies in fighting graft is “providing free legal assistance to victims of government officials involved in graft and corruption”.

5.05 Legal assistance from NGOs.- Active legal assistance are likewise extended by some Non-Government Organizations (NGOs) which specify as among their organizational goals preventing and fighting graft and corruption, such as the following: (a) Fellowship of Christians in Government, Inc.; (b) Concerned Citizens of Abra for Good Government, Inc. (CCAGG); (c) Citizens Oversight on Accountability, Inc. (COA, Inc.); (d) Although less adversarial and more on people empowerment, the Cebu Citizens' Involvement and Maturation in People’s Empowerment and Liberation Foundation, Inc. (C-CIMPEL) may also offer some assistance to victims of government corruption.

5.06 Legal assistance from young lawyers.- Young civic-minded lawyers who wish to render social service and restore morality in government, may find assisting complainants in filing cases against corrupt government people a socially fulfilling endeavor. Accepting engagements either as counsels or as private prosecutors in cases involving civil action for damages in behalf of victims of corruption on contingent basis can also be rewarding, aside from being socially beneficial.

IV. ADMINISTRATIVE DISCIPLINARY ACTION

6.0 Basic procedures in filing administrative action. Administrative disciplinary action against public officials and employees appears to be the remedy more frequently resorted to by victims of official abuses.

6.01 Preparing the administrative complaint.- There is no prescribed format in preparing an administrative complaint. Complaints may be in any form, either verbal or in writing. But for a speedier disposition of the complaint, it is preferable that it be in writing and under oath. However, the Civil Service Law specifically provides that except when initiated by the disciplining authority, no complaint against a civil service official or employee shall be given due course unless the same is in writing and subscribed and sworn to by the complainant.

6.02 Anonymous complaints.- In the Office of the Ombudsman, a complaint which does not disclose the identity of the complainant will be acted upon only if it merits appropriate consideration, or contains sufficient leads or particulars to enable the taking of further action. Similarly, in the Presidential Anti-Graft Commission, anonymous complaints against a presidential appointee are not given due course unless there appears on its face, or the supporting documents attached, a probable cause to engender a belief that the allegations may be true.

6.03 Grounds for filing administrative complaint.- In the Office of the Ombudsman, an administrative complaint may be filed for acts or omissions which are: (a) contrary to law or regulations; (b) unreasonable, unfair, oppressive or discriminating; (c) inconsistent with the general course of the agency’s functions though in accordance with law; (d) based on a mistake of law or arbitrary ascertainment of facts; (e) in the exercise of discretionary powers but for an improper purpose; (f) otherwise irregular, immoral or devoid of justification; or for (g) any delay or refusal to comply with the referral or directive of the Ombudsman or any of his deputies against the office or employee to whom it was addressed; and (h) such other grounds provided for under the Civil Service Law, Code of Conduct and Ethical Standards for Public Officials and Employees, and other applicable laws. Other grounds for administrative disciplinary action are provided for under the Civil Service Commission provision of the Administrative Code of 1987.

7.0 Where to file administrative complaint. An administrative complaint may be filed directly with the Civil Service Commission by a private citizen against a government official or employee. The complaint may also be filed with the Department Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities which have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction.

7.01 Filing with the Ombudsman.- Administrative complaints may be filed with the Office of the Ombudsman which has disciplinary authority over all elective and appointive officials of the government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local governments, government-owned and/or controlled corporations and their subsidiaries, except officials removable only by impeachment. However, the Office of the Ombudsman may investigate any serious misconduct in office allegedly committed by officials removable only by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.

7.02 Filing with the PAGC.- Complaints may also be filed with the Presidential Anti-Graft Commission which has the power to investigate administrative complaints against presidential appointees in government and any of its agencies or instrumentalities occupying the positions of assistant regional director, or equivalent rank, and higher, classified as Salary Grade "26" and higher, of the Compensation and Position Classification Act of 1989 (R.A. No. 6758).

7.03 Basic procedure in administrative cases against non-presidential appointees. - In the case of complaints filed with the Civil Service Commission or any authorized government agency by any person other than the agency head, the complainant shall submit sworn statements covering his testimony and those of his witnesses together with his documentary evidence. If on the basis of such papers a prima facie case is found not to exist, the disciplining authority shall dismiss the case. If a prima facie case exists, he shall notify the respondent in writing, of the charges against the latter, to which shall be attached copies of the complaint, sworn statements and other documents submitted, and the respondent shall be allowed not less than seventy-two hours after receipt of the complaint to answer the charges in writing under oath, together with supporting sworn statements and documents, in which he shall indicate whether or not he elects a formal investigation if his answer is not considered satisfactory.

7.04 Summary Proceedings. - No formal investigation is necessary and the respondent may be immediately removed or dismissed if any of the following circumstances is present: (1) When the charge is serious and the evidence of guilt is strong; (2) When the respondent is a recidivist or has been repeatedly charged and there is reasonable ground to believe that he is guilty of the present charge; and (3) When the respondent is notoriously undesirable.

7.05 Preventive Suspension. - The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.

8.0 Procedure in administrative cases against presidential appointees. In administrative cases against presidential appointees, the procedure prescribed by the office where the case is filed is followed. Thus, the procedure prescribed by the Office of the Ombudsman is followed if the case is filed thereat; or if the case is filed with the Presidential Anti-Graft Commission, the procedure prescribed by it is observed.

V. CRIMINAL COMPLAINT

9.0 Procedure in filing criminal complaint. To familiarize those concerned, below is a brief summary of the basic procedures for filing criminal cases before the Office of the Ombudsman.

9.01 Form of Criminal Complaint and Procedure for Filing.- A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party. A complaint is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omission complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.

9.02 Procedure for filing criminal case.- The procedure for filing criminal cases before the Office of the Ombudsman are as follows: (1) A Petition should be in writing, duly notarized and with proper annexes/evidences attached, to be addressed to the Ombudsman. (2) The Petition and all attachments should be delivered to the Central Records Division or the Area/Sectoral Office of the Office of the Ombudsman where the respondent resides. (3) The total number of copies to be furnished is the total number of respondents plus two (2).

9.03 Grounds for filing criminal complaint.- A criminal complaint may be brought for an offense in violation of R.A. 3019 (Anti-Graft and Corrupt Practices Act); R.A. 1379 (Forfeiture of Illegally Acquired Wealth); R.A. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees); the Revised Penal Code (Act No. 3815 [1932]); and for such other offenses committed by public officers and employees in relation to office. For a brief summary of the laws cited, please refer to Chapter 2, of this book.

VI. SPECIAL CIVIL ACTION

10.0 Remedy against abuses of officials or bodies exercising judicial, quasi-judicial or ministerial functions. Victims of gross abuse of discretion, or of proceedings in excess of jurisdiction, or of unlawful neglect to perform a duty, by any government official or body exercising judicial, quasi-judicial, or ministerial functions, may avail of the appropriate special civil action by filing a petition either for certiorari, prohibition, or mandamus. These remedies, however, may only be invoked if there is no other plain, speedy and adequate remedy in the ordinary course of law.

10.01 Petition for certiorari.- When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

10.02 Petition for prohibition.- When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.

10.03 Petition for mandamus.- When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

VII. ELECTION AS REMEDY

11.0 Leadership succession through elections. One of the advantages of constitutional democracy over the other systems of government is the observance of leadership succession through elections, where key positions in government are contested at regular intervals. In that manner the transfer of power is accomplished through orderly and peaceful means, instead of resorting to force in unseating unwanted incumbent officials. Thus, our Constitution and the electoral laws provide for the regular elections of the following officials:

11.01 Election of President and Vice-President.- The President and the Vice-President shall be elected by direct vote of the people for a term of six years, without reelection. The regular election for President and Vice-President of the Philippines is on the first Monday of May Nineteen hundred eighty seven (1987) and on the same day every six years thereafter.

11.02 Election of Senators.- In the case of the Senators, their term of office is for six years, provided no Senator may serve for more than two consecutive terms. Unless otherwise provided by law, the regular election of the Senators is held on the second day of May.

11.03 Members of the House of Representatives.- For Members of the House of Representatives, they shall be elected for a term of three years, provided no member may serve for more than three consecutive terms. Similarly, the regular election of the Members of the House of Representatives is held on the second Monday of May.

11.04 Regular elections of local officials. - The election of provincial, city and municipal officials whose positions are provided for by the Local Government Code shall be held throughout the Philippines on the first Monday of May, Nineteen hundred and eighty-six and on the same day every six years thereafter. In the case of barangay officials, their elections shall be held throughout the Philippines on the second Monday of May Nineteen hundred and eighty-eight and on the same day every six years thereafter.

VIII. CONCLUSION: THE REMEDY IN EXTREMIS

12.0 Citizen’s final remedy. All of the above regular remedies against official abuses presuppose a situation where the established political institutions of government still uphold the Constitution and the rule of law, and provide the citizenry with a channel through which they can seek redress for their legitimate complaints and grievances. But suppose the regular administrative and legislative avenues for such redress are sealed, what remedy is now left for the aggrieved citizenry? The Supreme Court is the final remedy, being the so-called bastion of the people’s rights, and the court of last resort. And perhaps rightly so. But then, is it not incapable of falling into error, or even of committing abuse, just like the two other departments of government?

13.0 A make believe scenario. Let us assume a scenario where the Executive, obsessed with perpetuating himself in power, succeeded in persuading Congress to revise the Constitution by changing the form of government as a way of circumventing the limitation of his tenure. In the ensuing plebiscite to ratify the change, massive electoral fraud was alleged and angry electorate rallied in the streets challenging the validity of the plebiscite. Let us further assume that the issue is now brought on appeal before the Supreme Court. Given that scenario, the fate of the nation now literally hangs on the outcome of the case.

14.0 The Supreme Court as bastion of people’s rights. In its 2003 Public Opinion Survey on Courts, the Social Weather Stations released the finding that “Filipino’s trust in the Supreme Court, Sandiganbayan, and trial courts is positive, but not outstanding.” It also found that: “Trust in the Supreme Court and in the Sandiganbayan (anti-corruption court) are only at par with trust in Congress and the National Government. Trust in trial courts is much less, though still slightly favorable.” Writing in his regular newspaper column on the subject “Criticism of the Courts”, retired Supreme Court Justice Isagani A. Cruz boldly asserted that “many citizens may think that the only faultless department of the government is the Judiciary. That is a naïve and ignorant assumption. This so-called bastion of the people’s rights has its share of the imperfections of our public service like corruption, inefficiency, toadying to political authority, greed for publicity, personal ambition and other similar weaknesses.” Justice Cruz then went on to cite specific cases where he alleged the Supreme Court committed lapses in its decisions. Going back to the make-believe scenario, suppose the Supreme Court was “toadying to political authority”, an imperfection that Justice Cruz remarked it has a share of, and thus rendered a decision which is perceived to be grossly erroneous, and roundly denounced by the electorate. Where then will the aggrieved citizenry now run to for relief?

15.0 The remedy in extremis. In the above scenario, which is portrayed merely as an academic exercise, the situation has finally reached the point in extremis. The people, now driven against the wall, may have to forcefully assert their right as the ultimate source of authority of government, and may be justified in reclaiming their inherent sovereignty that was only temporarily delegated to a set of elected representatives who have violated their trust, and have thus now lost the legitimate authority to govern. The