Wednesday, March 27, 2013

Fatal mistake of prosecutors in libel

Fatal mistake 
of prosecutors in libel


By BERTENI "TOTO" CATALUÑA CAUSING
Author of the book entitled "Simplified Libel Law in the Philippines"


How malice in libel must be stated in information sheet?


I share this part of my petition for review for the Supreme Court concerning a novel thought about how the element of malice must be stated in the accusatory page, or information sheet.

My proposition here is:

IT IS A FATAL DEFECT OF THE PROSECUTORS TO STATE IN THE INFORMATION FOR LIBEL THAT ELEMENT OF MALICE IN GENERAL TERMS SUCH AS "INTENTIONALLY, MALICIOUSLY AND KNOWINGLY IMPEACH THE HONOR AND REPUTATION" OF A PUBLIC OFFICIAL.

Read my analysis below. Rest assured this is something new idea on libel.





Fatally-defective information


            The two (2) information sheets for libel are defective because these failed to state the facts constituting the essential element of actual malice.

The facts constituting the element of actual malice must be stated in libel informations if the offended party are public officials. 

As will be explained below, it is insufficient for the information just to state: “knowingly, willfully, unlawfully, and feloniously, and with malicious intent of impeaching the honesty, virtue and reputation of” a public official.

This is because the Supreme Court has already made it as a law that if the offended party is a public officer as in the case at bar, the actual malice test must be the gauge in determining whether there exists the element of malice.

Some of these case laws are Guingguing vs Court of Appeals[1], Vasquez vs Court of Appeals[2], Borjal vs Court of Appeals[3], Filipinas Broadcasting Network Inc. vs Ago Medical and Educational Center[4], and many others.

The Supreme Court adopted the ACTUAL MALICE DOCTRINE from the US Supreme Court’s rulings, beginning with New York Times vs Sullivan[5].  

So that all informations for libel where the offended party are public officials must state specific facts constituing actual malice to duly inform the accused of the nature and cause of accusation.

And if this is not obeyed to the letter, there is doubt whether the accused is duly informed of the nature and cause of the accusation against him.

Let it be stressed that it is the duty of the State to DULY inform the accused of the nature and cause of the accusation against him.

And if this duty is not discharged, the accused must be acquitted on the ground of lack of due process, specifically lack of notice.

This is so because if an accused cannot duly understand the nature and cause of accusation, he will be guessing only on how to explain his side.

If that is so, there can be no valid arraignment. If arraignment is not valid, then the accused cannot be convicted.

The same is the legal effect if the information fails to state an essential set of facts constituting the crime charged: no valid arraignment such that there is no compliance with the due process of law  and in that the accused cannot be convicted.

There are two kinds of malice. 

The first kind of malice is one that is connected to the hatred in the heart of the speaker that he deliberately uttered words that defame or hurt the person against whom the speaker is angry at.  Here, it does not matter whether the words are true or false or that the harsh opinions are founded on truth or falsity. 

Hatred, love, motive of revenge, envy, jealousy, greed, extreme desire for aggrandizement, desire for glory, desire for sex, rivalry, ambition, desire for promotion, and other desires: they are all potent forces that each of them is enough to impel a person to defame or hurt another.

But in case the drive drove the man bold enough to expose the truth, that is not malice in the contemplation of Actual Malice.

One may be so angry at another that the former decided to publish the truth against the latter who is a public figure or a public officer and that truth maligned the the latter in public contempt.  The motive of revenge here is not material. It is always not libel under the test of Actual Malice.  It is founded on the truth.

With this, it is hoped that it is now clear that the specific facts that must be stated in any libel information must serve the requirements of the Actual Malice standard in libel.

In other words, there are two possibilities in hate words: either the words uttered may have been founded on truth or outrightly false, although both tend to defame.

As differentiated from plain ill-will, specks and spikes, Actual Malice means publishing false defamatory item despite knowledge of falsity or publishing with reckless disregard of the falsity of the defamatory item.

So that even if there was ill-will, specks and spikes, even if the anger was exceeding, there is no actual malice if the defamatory item published is not false or the falsity of the item was not proved by the accuser, or that the defamatory item published did not evoke a situation or circumstance that should prompt the publisher to check the veracity of the defamatory item.

So that every libel information involving a public officer or a public figure as the offended party must state the ELEMENT OF ACTUAL MALICE with the specific facts that the accused knew the falsity of the defamatory item yet he proceeded with publishing the same, or that the accused knew that the facts presented a situation or a circumstance that he should check the truth or falsity of the defamatory item but he did not do so and proceeded with the publication.

This is how the libel information should be written to reflect the actual malice element of libel if the offended party is a public officer or a public figure.  As demonstrated above, the doctrine of actual malice commands that an accused cannot be convicted of libel unless the prosecution proved first the falsity of the defamatory item and that the accused knew the falsity before publishing the item yet he proceeded in publishing the same, or unless the prosecution proved first that the defamatory imputation is false and that the accused was prompted by a situation or circumstance that he should have checked the truth or falsity of the imputation.

So that if what is an issue is a news story that is a straight news reporting, when there is no opinion involved, one statement of facts that complies with the actual malice standard may be stated this way: “...published that Governor Jose Abad Santos plotted to murder Mayor Andres Bonifacio despite prior knowledge it false...”

If the straight news reported that Catholic Bishop Oscar Cruz was charged with rape committed against a minor, it is natural that the publisher must first check this with sources and only after confirmation that there was indeed a complaint-affidavit for rape that was filed can the publisher publish the news report without any liability to libel.  And if Bishop Cruz filed a complaint and it had to be elevated to the court, one statment of facts that complies with the actual malice standard may be stated this way: “...published with reckless disregard of the falsity that Catholic Bishop Oscar Cruz was charged with rape committed against a minor...”

And if what is involved is a column or an opinion article that was published, it is also settled by Borjal vs CA that comments or remarks that are of public interest and fairly inferred from reasonably supposed facts are protected against libel liability, even after the facts turned out to be false after the publication.

If the opinions to be considered are those written in this case by accused Claudio Daquer, one statement of facts that complies with the malice standard may be stated this way: “...published an opinion that Arnie Grande, the head of the City Sports Council of Puerto Princesa City, was ‘kuto na nakapatong sa kalabaw,’ ‘mokong,’ ‘gago’ when these were inferred from  facts that the accused knew to be false.”

The instant two (2) information sheets for libel did not state this minimum malice standard when opinions that are matters of public interest because they were directed against a public officer, a city sports head in this case, did not state as suggested in the immediately preceding paragraph. 

INSTEAD, the present two (2) information sheets for libel state the element of malice as this:

Criminal Case No. 18814
xxx xxx

That on or about 4th day of April 2003, at Puerto Princesa City, Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the News Editor/Writer and publisher of the publication known as “The Palawan Mirror,” edited and published in the City of Puerto Princesa, which has a considerable circulation in said city and in the Province of Palawan, conspiring, confederating and mutually helping one another, did then and there wilfully (sic), unlawfully, and feloniously, and with malicious intent of impeaching the honesty, virtue and reputation of Anrie A. Grande, Sports Development Officer III-Program Manager of the City Government of Puerto Princesa, and with malicious intent of injuring and exposing said Anrie A. Grande to public hatred, contempt and ridicule, write and publish in the regular issue of its weekly publication of the Palawan Mirror dated April 4-10, 2003, Volume XXI Number 12, a certain article entitled “KUTO NA NAIS MAGING KALABAW SA CITY HALL”, quoted verbatim hereunder, to wit:



Criminal Case No. 18815
xxx xxx

That on or about 11th day of April 2003, at Puerto Princesa City, Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the News Editor/Writer and publisher of the publication known as “The Palawan Mirror,” edited and published in the City of Puerto Princesa, which has a considerable circulation in said city and in the Province of Palawan, conspiring, confederating and mutually helping one another, did then and there wilfully (sic), unlawfully, and feloniously, and with malicious intent of impeaching the honesty, virtue and reputation of Anrie A. Grande, Sports Development Officer III-Program Manager of the City Government of Puerto Princesa, and with malicious intent of injuring and exposing said Anrie A. Grande to public hatred, contempt and ridicule, write and publish in the regular issue of its weekly publication of the Palawan Mirror dated April 11-17, 2003, Volume XXI Number 13, a certain article entitled “UNSOLICITED ADVICE SA “MEDIA PRACS”, quoted verbatim hereunder, to wit:


           Clear, the two (2) information sheets do not comply.

The first and the second information stated that actual malice element in this way: ”... wilfully (sic), unlawfully, and feloniously, and with malicious intent of impeaching the honesty, virtue and reputation of Anrie A. Grande, Sports Development Officer III-Program Manager of the City Government of Puerto Princesa, and with malicious intent of injuring and exposing said Anrie A. Grande to public hatred, contempt and ridicule…”

As proposed above, even if the accused Claudio Daquer was exceedingly angry at or hating Anre Grande too much, it cannot be seen how statements of “malicious intent of impeaching the honesty, virtue and reputation of” convey the meaning that Daquer knew the facts upon which he based his opinions were false.

Of course, general statement that there was malice cannot satisfy the Constitutional requirement that the accused must be duly informed of the nature and cause of accusation against him.  So that the actual two (2) information sheets for libel filed and read against accused Daquer did not comply with the constitutional requirement that Daquer must be duly informed of the nature and cause of the acusation against him.

As a result of the general statement of malice, even the Regional Trial Court and the Court of Appeals proved to have been confused.

Both the RTC and the CA mistook the empathic words “kuto”, “mokong” and “gago”  for actual malice.

The two lower courts DID NOT EXPLAIN WHY THEY SHOULD REQUIRE DAQUER TO VERIFY THE FACTS FROM WHICH HE BASED HIS HARSH OPINIONS WHEN WHAT THE OFFENDED PARTY DID WAS ONLY TO MAKE A “CATEGORICAL DENIAL” AND CONTENTED TO THAT WITHOUT SUBMITTING EVIDENCE WHY THE FACTS WRITTEN IN THE OPINION ARTICLES WERE FALSE. 

Was it not believable for a sports official who is not a priest to have committed those acts that are manipulative, scheming and chair-lifting in order to defeat rivals to the position and glory before the eyes of Mayor Edward Hagedorn?

In fact, even if the offended party proved the falsity of the facts, the prosecution failed to prove that Daquer knew the falsities prior to the writing of the opinion articles.

The two lower courts did not penalize him for the content of the facts upon which Daquer based his opinions.

Nevertheless, what is important now is not whether the prosecution proved actual malice or not.

What is the single thing that spells the life or death of this case is THE FACT THAT THE TWO (2) INFORMATION SHEETS FOR LIBEL DO NOT STATE THAT ACCUSED DAQUER KNEW OF THE FALSITIES OF THE FACTS HE USED AND THAT KNOWLEDGE OCCURRED JUST BEFORE THE PUBLICATION OF THESE HARSH CRITICISMS.

The wisdom above means that even if the speech involved hate against the target of the speech, and the words uttered were full of hatred, the public officials as the offended parties cannot escape from the requisite that they must prove actual malice.

This wisdom of the Court proceeds from the basic idea that the interest of the society and the maintenance of good government demand a full discussion of public affairs as eloquently uttered by Justice Brennan.

Because public service is a public trust, the State has adopted the policy enunciated in US vs. Bustos[6] to ensure that the ends of public service is approximated.  In other words, public opinions and criticisms of public officials are the bedrock of democracy.  If these are limited, what happens is anarchy and warlordisms.

Thus, the Supreme Court said in Bustos:

The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good. Rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary -- to any or all the agencies of Government -- public opinion should be the constant source of liberty and democracy.

It is essential in libel cases filed by offended parties who are public officers that the published facts from which the opinions were drawn are false and that the accused knew before the publication was done that these facts are false.

            It is basic that when an element of the crime is not stated, even if proved it cannot be appricated.  In the same manner that when a less serious matter, a qualifying circumstance or an aggravating circumstance, cannot be appreciated even if proved if these are not stated in the information.

            Ergo, on the basis of the fact that the facts constituting the elements of actual malice were not stated in the two (2) informations for libel, the instant two criminal cases against Daquer cannot go other way but a judgment of acquittal.


[1] Guingguing vs CA, G.R. No. 128959, September 30, 2005
[2] Vasquez vs CA, G.R. No. 118971, September 15, 1999
[3] Borjal vs CA, G.R. No. 126466, January 14, 1999
[4] Filipinas Broadcasting vs Ago Medical, G.R. No. 141994, January 17, 2005
[5] New York Times vs Sullivan, 376 U.S. 254 (1964)
[6] US vs Bustos, L-12592 March 8, 1918
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