TORTS WITH INDEPENDENT CIVIL ACTIONI. CONCEPT There are views on the basis of the liabilityA. That the civil action which the Civil Code provisions allow to be filed is ex-delicto i.e. civil liability arising from delict (Madeja vs. Caro, 126 SCRA 293).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 civic 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. (Report of the Code Commission)The general rule is that when a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action unless the offended party reserves the his right to institute it separately; and after a criminal action has been commenced, no civil action arising from the same offense can be instituted. The present article creates an exception to this rule when the offense is defamation, fraud or physical injuries. (Tolentino, I Civil Code, p. 144 1974).B. That the liability sought to be enforced are based from the tortuous actions more of the nature of culpa aquiliana and then therefore separate and distinct from the civil liability arising from the crime. (Justice Caguioa, 1 Caguioa 53).A citizen who suffers damage or injury through another must rely upon the action of the prosecuting attorney if the offense is criminal. The proposed Civil Code lessens (but does not abolish) this dependence of the aggrieved party upon the criminal action.

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 civic 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. (Report of the Code Commission).II. Article 32: VIOLATION OF CIVIL & POLITICAL RIGHTSArticle 32 of the Civil Code holds any public officer, employee or private individual civilly liable for the violation of civil liberties, political liberties and other basic rights under the Constitution. The aggrieved party may recover actual, moral and exemplary damages and other relief. The civil action is separate and distinct and shall proceed independently of a criminal prosecution if one is instituted. Only a preponderance of evidence is required. If the violation of the civil or political rights constitutes a crime and a criminal action is instituted the civil action is also deemed instituted with the criminal action unless the same is reserved. (Judge Jarencio, 1977).A. Rationale: The creation of an absolutely separate and independent civil action for the violation of civil liberties is essential to the effective maintenance of democracy, for these reasons:(1) The threat to freedom originates from abuses of power by government officials and peace officers.

(2) Even when the prosecuting attorney filed a criminal action, the requirement of proof beyond reasonable doubt often prevented the appropriate punishment.

(3) Direct and open violations of the Penal Code trampling upon the freedom are not so frequent as those subtle, clever and indirect ways which do not come within the pale of penal law.

B. HOW COMMITTED and PERSONS LIABLEAlthough Article 32 normally involves intentional acts, the tort of violation of civil and political rights can also be committed through negligence. In addition, the rule is that good faith on the part of the defendant does not necessarily excuse such violation. The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is the effective protection of individual rights. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties. Precisely, the object of the Article is to put an end to official abuse by the plea of good faith. (Delfin Lim and Jikil Taha vs. Francisco Ponce De Leon et.al., G.R. No. L-22554).The provisions in the Bill of Rights and the recognition of the rights specified therein are normally directed against government abuse. The coverage of tort (in this jurisdiction) also cover even private individuals. The law expressly imposes liability on private individuals who obstruct, defeat, violate or in any manner impede or impair the rights and liberties of another. The law also provides that a person may be held liable whether his participation is direct or indirect.a. Superior Officers in relation to their subordinatesThe principles of accountability of public officials under the Constitution acquires added meaning and assumes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in thought that he does not have to answer the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizens (Aberca et.al. vs. Ver, 160 SCRA 590).C. STATE IMMUNITYA public officer who is defendant in a case for damages under Article 32 cannot escape liability under the doctrine of state immunity. The doctrine of state immunity applies only if the acts involved are acts done by the officers in the performance of official duties within the ambit of their powers. (Aberca et.al. vs. Ver, supra).D. Suspension of the privilege of the writ of habeas corpusSection 15 of the 1987 Constitution provides that the privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it.Only the right of the individual to seek release from his detention through this writ is suspended.

E. Examples of violations

1. Due Process Ruben Serrano vs. NLRC (GR No. 117040)

2. Right Against Searches and Seizures - Aberca et.al. vs. Ver, 160 SCRA 590

III. ART.33: DEFAMATION, FRAUD AND PHYSICAL INJURIESDefamation, fraud and physical injuries are crimes under the Revised Penal Code. Art. 33 of the Civil Code specifically declares that the civil action for damages for defamation, fraud and physical injuries is entirely separate and distinct from the criminal action and shall proceed independently of the criminal prosecution and shall require only a preponderance of evidence. Defamation, fraud and physical injuries are treated by the law not only as crimes but also as torts in so far as the aggrieved party is concerned. The terms defamation, fraud and physical injuries in Art. 33 are used in their generic sense and not in the sense defined in the Revised Penal Code.A. Defamation an invasion of the interest in reputation and good name, by communication to others which tends to diminish the esteem in which the plaintiff is held, or to excite adverse feelings or opinion against him (Prosser, Handbook on the law on Torts, p.52) A statement is defamatory if it is an imputation of circumstance tending to cause dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead (Revised Penal Code definition).In this jurisdiction, defamation includes the crimes of libel (written defamation) and slander (oral defamation). The liability imposed for defamation is brought about by the desire to protect the reputation of every individual. The enjoyment of reputation is one of those rights necessary to human society that underlie the whole scheme of civilization.a. Requisites: (1) it must be defamatory;

(2) it must be malicious;

(3) it must be given publicity; and

(4) the victim must be identifiable.

b. Persons Liable and Proof of Truth (as per Revised Penal Code)Art. 360. Persons responsible. Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same.

The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.

The criminal and civil action for damages in cases of written defamations as provided for in this chapter, shall be filed simultaneously or separately with the court of first instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense: Provided, however, That where one of the offended parties is a public officer whose office is in the City of Manila at the time of the commission of the offense, the action shall be filed in the Court of First Instance of the City of Manila, or of the city or province where the libelous article is printed and first published, and in case such public officer does not hold office in the City of Manila, the action shall be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense or where the libelous article is printed and first published and in case one of the offended parties is a private individual, the action shall be filed in the Court of First Instance of the province or city where he actually resides at the time of the commission of the offense or where the libelous matter is printed and first published: Provided, further, That the civil action shall be filed in the same court where the criminal action is filed and vice versa: Provided, furthermore, That the court where the criminal action or civil action for damages is first filed, shall acquire jurisdiction to the exclusion of other courts: And, provided, finally, That this amendment shall not apply to cases of written defamations, the civil and/or criminal actions which have been filed in court at the time of the effectivity of this law.

Preliminary investigation of criminal action for written defamations as provided for in the chapter shall be conducted by the provincial or city fiscal of the province or city, or by the municipal court of the city or capital of the province where such action may be instituted in accordance with the provisions of this article.

No criminal action for defamation which consists in the imputation of a crime which cannot be prosecuted de oficio shall be brought except at the instance of and upon complaint expressly filed by the offended party. (As amended by R.A. 1289, approved June 15, 1955, R.A. 4363, approved June 19, 1965).

Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

c. Defenses of Absolute Privileged Matters and Qualified Privileged.1. Absolute Privileged found in The 1987 Constitution:

Article III Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.Article VI Section 11. A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.

d.2. Qualified Privilege found in the Revised Penal Code:

Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

B. FraudThe tort of fraud under Art.33 includes cases which constitute the tort of deceit in England and the United States. In English law, the elements of fraud (Report of the Code of Commission). The elements of deceit in English law are: (1) the defendant must have made false representation to the plaintiff;

(2) the representation must be one of fact;

(3) the defendant must know that the representation is false or be reckless about

whether it is false;

(4) the defendant must have acted on the false representation;

(5) the defendant must have intended that the representation should be acted on;

(6) the plaintiff must have suffered damage as a result of acting on the representation (Elliot and Quinn, Tort Law, 1996 Ed.).

However, misrepresentation upon a mere matter of opinion is not an actionable deceit. (Sonco vs. Sellner, 37 Phil. 254). Nevertheless, According to Art. 1341 NCC. A mere expression of an opinion does not signify fraud, unless made by an expert and the other party has relied on the former's special knowledge.C. Physical InjuriesIt has been ruled in this jurisdiction that the term physical injuries in Art.33 include bodily injuries causing death (Capuno vs. Pepsi et.al., GR No. L-19331). However, it does not include the cases where the crime committed is reckless imprudence resulting to homicide. Physical Injuries is to be understood in its ordinary meaning and does not include homicide or murder because where physical injuries result in homicide or murder, the reason for the law (namely, to give the injured party personally the initiative to demand damages by an independent civil action) ceases, for the reason that a dead person can no longer personally, through his lawyer institute an independent civil action for damages. (Corpuz et.al. vs Paje, GR No. L-26737).IV. ART.34: Neglect of Duty

Article 34 of the Civil Code provides:

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 therefore. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.

The policeman is the government official to whom the common man usually turns for protection when his life or property is threatened with danger. To him the policeman is the external symbol of the governments power and authority. Thus it is the primary duty of city and municipal policemen not only to preserve and maintain peace and order but also to render aid and protection to life and property in their jurisdictions. If policemen refuse or fail to render aid or protection to any person whose life or property is in danger, they are unfaithful to their duty and Art. 34 of the Civil Code properly grants to the person damaged a right action against the recreant policeman. The law also holds the city or municipality subsidiarily responsible for the damage so that they will exercise great care in selecting conscientious and duly qualified policemen and exercise proper supervision over them in the performance of their duties as peace officers.Sources: 1. Timoteo Aquino on Torts and Damages

2. Judge Jarencio on Torts and Damages in Philippine Law

1Angelico Zenon M. Delos Reyes 2007-0122 -- Independent Civil Action - - Torts, Damages and Transportation