ON LIBEL CASES: Secretary's Certificate not enough to defeat presumption of innocence
ON LIBEL CASES: Secretary's Certificate not enough to defeat presumption of innocence
By BERTENI "TOTO" CATALUÑA CAUSING
Author of the book "SIMPLIFIED LIBEL LAW IN THE PHILIPPINES"
This writer hereby shares his Memorandum in defense of his client on seven counts of libel now up for decision before the Regional Trial Court of Pasig (sitting in San Juan City), Branch 160.
The purpose of sharing this is for those who are inclined to read to know some of the intricacies of libel in order to arm them with knowledge in their advocacy works that entail the risk of defaming other persons in the process.
Read and enjoy the Memorandum below.
Patriotically yours,
BERTENI "TOTO" CATALUÑA CAUSING
XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
By BERTENI "TOTO" CATALUÑA CAUSING
Author of the book "SIMPLIFIED LIBEL LAW IN THE PHILIPPINES"
This writer hereby shares his Memorandum in defense of his client on seven counts of libel now up for decision before the Regional Trial Court of Pasig (sitting in San Juan City), Branch 160.
The purpose of sharing this is for those who are inclined to read to know some of the intricacies of libel in order to arm them with knowledge in their advocacy works that entail the risk of defaming other persons in the process.
Read and enjoy the Memorandum below.
Patriotically yours,
BERTENI "TOTO" CATALUÑA CAUSING
XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
Republic
of the Philippines
National Capital Region
Regional Trial Court (of Pasig City)
Stationed
in San Juan City
Branch
160
PEOPLE
OF THE PHILIPPINES,
Plaintiff,
-versus- Criminal
Case Nos. 130350 to 130356
LEO
D. VILLAN, ET AL.,
Accused.
x--------------------------------------x
Memorandum
Accused Leo
Villan, by the undersigned counsel, respectfully submits this Memorandum.
The
Cases
These are seven cases for libel upon the theory that the
accused conspired with his staff members in Brigada News to impeach “the honesty, virtue and reputation
of FIRST QUADRANT PHILIPPINES, INC., represented by Rhodora “Doyee”
Tactacan-Tumpalan and with malicious intent of enduring and exposing said FIRST
QUADRANT PHILIPPINES, INC. to public hatred, contempt and ridicule” by means of
publishing and circulating stories.
The
first of the Informations of libel, in Criminal Case No. 130350, is hereby reproduced:
I N F O R M A T I O N
The undersigned Assistant Provincial Prosecutor LEO D. VILAN, CLARINDA, I. CATIMPO, FREDDIE SARROL, NESTORIO IBANEZ and
ROMMEL C. JAVIER of the crime of Libel (Vio. of Art. 355 of the Revised
Penal Code), committed as follows:
That on or about the 7th day of March 2003 in the
Municipality of San Juan, Metro Manila, Philippines and within the jurisdiction
of the Honorable Court, the above-named accused, being then the President and
Chairman of the Board, Editor in Chief, Executive Editor, Managing Editor and
Associate Editor, respectively of People’s Brigada News, a newspaper of general
circulation not only in Metro Manila but also throughout the entire
Philippines, conspiring and confederating together and mutually helping and
aiding one another, did then and there wilfully, unlawfully and feloniously and
with malicious intent of impeaching the honesty, virtue and reputation of FIRST
QUADRANT PHILIPPINES, INC., represented
by Rhodora “Doyee” Tactacan-Tumpalan and with malicious intent of
enduring and exposing said FIRST QUADRANT PHILIPPINES, INC. to public hatred,
contempt and ridicule, publish and circulate the documents as follows:
“DUMAGSA sa tanggapan ng People’s Brigada News ang mga nagrereklamo
laban sa First Quadrant, isang kompanay na nagtitinda ng mga apparel at
sinasabing pseudo investment firm.
Ayon sa mga nagsusumbong, nahikayat silang maging miyembro ng FQ at
nag-invest sila ng malaking pera dito dahil sa pangkong kikita sila ng limpak
na salapi kahit kukuyakoy na lang sila sa bahay.
xxx
Saan na napunta ang P6,800 pa? Iyon ba ang ipinamamahagi sa mga
uplines? Mali ‘yun, kung ganon. Isipin nyo na lang na kung sa isang daan lang
na “investors” na papasakop sa kanila, mayroon na silang ibinubulsang P680.00.
Isandaan pa lang ‘yun. Kung makakarating ka sa office ng First Quadrant,
maraming pumupunta run sa araw-araw, libo-libo! Ibig nitong sabihin, malalaking
pera ang kinamkam ng mga swapang sa First Quadrant,” hinaing naman ng isa pa sa
mga nagsumbong sa PBN.
In the damage and prejudice of said FIRST QUADRANT PHILS., INC.
CONTRARY TO LAW.
The SECOND information is hereby quoted, in Criminal Case
No. 130251, as follows:
I N F O R M A T I O N
The undersigned
Assistant Provincial Prosecutor accuses LEO
D. VILAN, CLARINDA I. CATIMPO, FREDDIE SARROL, NESTORIO IBANEZ and ROMMEL C.
JAVIER of the crime of Libel (Vio. of Art. 355 of The Revised Penal code),
committed as follows:
That on or about the 8th day of
March 2003, in the Municipality of San Juan, Metro Manila, Philippines and
within the jurisdiction of the Honorable Court, the above-named accused, being
then the President and Chairman of the Board, Editor in Chief, Executive
Editor, Managing Editor and Associate Editor, respectively of People’s Brigada
News, a newspaper of general circulation not only in Metro Manila but also
throughout the entire Philippines, not only in Metro
Manila but also throughout the entire Philippines, conspiring and confederating
together and mutually helping and aiding one another, did then and there
wilfully, unlawfully and feloniously and with malicious intent of impeaching
the honesty, virtue and reputation of FIRST QUADRANT PHILIPPINES, INC., represented by Rhodora “Doyee”
Tactacan-Tumpalan and with malicious intent of enduring and exposing
said FIRST QUADRANT PHILIPPINES, INC. to public hatred, contempt and ridicule,
publish and circulate the documents as follows:
“Ang seryeng mababasa nyo ngayon sa sadya kong
Isinulat para sa kapakanan ng mga nagrereklamo sa sa mga panloloko ng mga kompanyang sangkot sa illegal pyramiding o
network marketing scam.
Layunin naming
balatan ang mga kumpanayang Ito ng kanilang tunay na anyo. Hindi ko estilo ang
magsulat ng kolum Base sa mga pangamba, pananaw, o di naman kaya, opinion o
kuru-kuro. Sa trabaho kong ito, masusing
pag-aaral at imbestigasyon ang aking Isinasagawa.
At ang aking
pinababasehan ay iyon mismong mga nagrereklmaong biktima ng mga kompanyang nanloko sa kanila.
Lilinawin ko, ‘yung mga lehitimong nagrereklamong biltima na sumailalim sa
aming masusing imbestigasyon. Mahalaga sa amin ang mga dokumentong
pinanghahawakan ng mga biktimang humingi ng saklolo sa amin. Ito ang
pangunahing batayan ng mga biktimang humingi ng saklolo sa min. Ito ang
pangunahing batayan n gaming Expose.
Kahapon, tinalakay natin ang
pinaka-latest na inirereklamo, ang First Quadrant. Dumami pa lalo ang nagpunta
sa aming tanggapan upang ipahayag ang kanilang reklamo matapos mabasa ang
headline natin kahapon, anila’y nagkaroon lang sila ng lakas ng loob dahil
dati’y mukhang “untocuhables” ang pamunuan ng First Quadrant
dahil sa mga kilalang personalidad na nag-eendorse rito.
Inuulit
naming, hiningan naming ng pahayag ang First Quadrant noon pang pang nakaraang
lingo noon Huwebes lang nag-return call si Jong Medenilla (na ayon sa mga
nakasagot sa telepono ay PR daw ng FQ hindi para magbigay ng kanilang said kung
hindi upang mag-set ng interview kasama
ang kanilang resident, isang
Ms.Doyee, kahapon sana. Busy raw kasi si Ms. Doyee at sa Biyernes ay “isisingit” kami sa hectic
schedule ng kanilag presidente. Kahapon ng hapon, nakausap ng aming
Editor-in-Chief itong si Ms. Doyee at nagpasya ang huli na huwag nang
magpahayag pa ng side ng kumpanyang patungkol sa mga inihaing reklamo ng
kanilang mga recruits (o”investors”) sa amin. Expectedly, tanging ang kanilang intensyong
gumawa ng legal action ang ipinahayag ni Ms.
Doyee. Maliban ditto, “talk to my lawyer” ang mahinahon niyang dialogue
sa amin.
Anak ng buhay! Gaya ng nabanggit natin sa kolum
natin kahapon, at basa sa mga probisyon ng batas patungkol sa pyramiding, ang
FQ ay naka-classify na pyramiding dahil a pagkuha nito ng mga “investors” na
hinihingan nila ng one-time “investment” na P8,800 kasama ang pangako na kikita
sila ng hundredfolds. Paano? Ayon sa mga
nagreklamo may 50% cut sila sa mga mabebenta nilang produkto ng FQ dahil
discounted ng 50% ang mga produktong makukuha nila. Una anilang ibibigay sa
kanila ay 2,000 worth of products kasama ang pang=eengganyo namag-invite pa
sila ng iba pang “investor” dahil mayroon umano silang P1,500 sa unang pares na
mag-invest sa kanila at karagdagang 5% mula sa bawa’t potential investors na
mahihikayat nila.
Kung direct selling lang nae-engage ang FQ ay walang
panloloko rito. Pero ayon na rin sa mga nagreklamo sa aming tanggapan,
pinagakuan umano sila na kikta kapag nakag-engganyo sila ng iba pang taong
mag-iinvest sa FQ. Malinaw na pyramiding ito. Kahit anong klase ng pyramiding
scheme ay paglabag sa ating batas dahil ayon
sa RA7394, Article 4(k). Pyramiding sales schemes are sales devices whereby a
person, upon condition that he makes an investment, is granted by the
manufacturer or his representative a right to recruit to profit one or more
additional persons who will also be granted employing such right to recruit one
or more additional persons who will also be granted employing such right to
recruit upon condition of making similar investments. Provided that, the
profits of the person employing such plan are derived primarily from the
recruitment of other persons into the plan rather than from the sale of
Consumers products, services and credit...”
“Isang panawagan sa task force na itinatag ng
Department of Justice na itnayo para labanan ang mga kumpanyang nag-e-engage sa
pyramiding at iba pang pseudo investment firms. Dapat natin itong silipin upang
mabigyan naman ng pagkakataon ang mga biktima nito ng hustisya. Karamihan pa naman
sa kanila ay sumali sa FQ sa paniniwalang magkakaroon sila ng pagkakataong
kumita at maiangat ang kanilang buhay. Ang tanging gusto nilang mangyari ay
mabawi man lang ang kanilang pera, na kung titingnan ay maliit na halaga
lamang. Pero sa kanila, kinuha pa ito sa pambayad nila ng kuryente at tubig, ng
upa sa bahay, ng pambili ng bigas.
to the damage and prejudice of said FIRST
QUADRANT PHILS., INC.
CONTRARY TO LAW.
San Juan, Metro manila for Pasig City.
September 5, 2003.
The THIRD information states as follows:
INFORMATION
The undersigned Assistant Provincial
Prosecutor accuses LEO D. VILLAN, CLARINDA I. CATIMPO, FREDDIE SARROL, NESTORIO
IBNEZ and ROMMEL C. JAVIER of the crime of Libel (Vio. of Art. 355 of the
Revised Penal Code), committed as follows:
That on or about the 8th day of March 2003, in the Municipality of San
Juan, Metro Manila, Philippines and within the jurisdiction of the Honorable
Court, the above-named accused being then the President and Chairman of the
Board, Editor in Chief, Executive Editor, Managing Editor and Associate Editor,
respectively, of People’s Brigada News, a newspaper of general circulation not
only in Metro Manila but also throughout the entire Philippines, conspiring and
confederating together and mutually helping and aiding one another, did then
and there wilfully, unlawfully and feloniously and with malicious intentof
impeaching the honesty, virtue and reputation of the FIRST QUADRANT
PHILIPPINES, INC., represented by
Rhodora “Doyee” Tactacan-Tumpalan and with malicious intent of enduring
and exposing said FIRST QUADRANT PHILIPPINES, INC. To public hatred, contempt
and ridicule, publish and circulate the document as follows:
xxx
xxx xxx
The FOURTH information states as
follows:
INFORMATION
The undersigned Assistant Provincial
Prosecutor accuses LEO D. VILLAN, CLARINDA I. CATIMPO, FREDDIE SARROL, NESTORIO
IBNEZ and ROMMEL C. JAVIER of the crime of Libel (Vio. of Art. 355 of the
Revised Penal Code), committed as follows:
That on or about the 7th day of March 2003, in the Municipality of San
Juan, Metro Manila, Philippines and within the jurisdiction of the Honorable
Court, the above-named accused being then the President and Chairman of the
Board, Editor in Chief, Executive Editor, Managing Editor and Associate Editor,
respectively, of People’s Brigada News, a newspaper of general circulation not
only in Metro Manila but also throughout the entire Philippines, conspiring and
confederating together and mutually helping and aiding one another, did then
and there wilfully, unlawfully and feloniously and with malicious intentof
impeaching the honesty, virtue and reputation of the FIRST QUADRANT
PHILIPPINES, INC., represented by
Rhodora “Doyee” Tactacan-Tumpalan and with malicious intent of enduring
and exposing said FIRST QUADRANT PHILIPPINES, INC. To public hatred, contempt
and ridicule, publish and circulate the document as follows:
The FIFTH information for libel states as follows:
INFORMATION
The undersigned Assistant Provincial Prosecutor accuses LEO D. VILLAN,
CLARINDA I. CATIMPO, FREDDIE SARROL, NESTORIO IBNEZ and ROMMEL C. JAVIER of the
crime of Libel (Vio. of Art. 355 of the Revised Penal Code), committed as
follows:
That on or about the 11th day of March 2003, in the Municipality of San
Juan, Metro Manila, Philippines and within the jurisdiction of the Honorable
Court, the above-named accused being then the President and Chairman of the
Board, Editor in Chief, Executive Editor, Managing Editor and Associate Editor,
respectively, of People’s Brigada News, a newspaper of general circulation not
only in Metro Manila but also throughout the entire Philippines, conspiring and
confederating together and mutually helping and aiding one another, did then
and there wilfully, unlawfully and feloniously and with malicious intentof
impeaching the honesty, virtue and reputation of the FIRST QUADRANT
PHILIPPINES, INC., represented by
Rhodora “Doyee” Tactacan-Tumpalan and with malicious intent of enduring
and exposing said FIRST QUADRANT PHILIPPINES, INC. To public hatred, contempt
and ridicule, publish and circulate the document as follows:
The SIXTH information of the crime of libel being charged here is as
follows:
INFORMATION
The undersigned Assistant Provincial Prosecutor accuses LEO D. VILLAN,
CLARINDA I. CATIMPO, FREDDIE SARROL, NESTORIO IBNEZ and ROMMEL C. JAVIER of the
crime of Libel (Vio. of Art. 355 of the Revised Penal Code), committed as
follows:
That on or about the 14th day of March 2003, in the Municipality of San
Juan, Metro Manila, Philippines and within the jurisdiction of the Honorable
Court, the above-named accused being then the President and Chairman of the
Board, Editor in Chief, Executive Editor, Managing Editor and Associate Editor,
respectively, of People’s Brigada News, a newspaper of general circulation not
only in Metro Manila but also throughout the entire Philippines, conspiring and
confederating together and mutually helping and aiding one another, did then
and there wilfully, unlawfully and feloniously and with malicious intent of
impeaching the honesty, virtue and reputation of the FIRST QUADRANT
PHILIPPINES, INC., represented by
Rhodora “Doyee” Tactacan-Tumpalan and with malicious intent of enduring
and exposing said FIRST QUADRANT PHILIPPINES, INC. To public hatred, contempt
and ridicule, publish and circulate the document as follows:
The SEVENTH information for libel filed by the City Prosecutor read as
follows:
INFORMATION
The undersigned Assistant Provincial
Prosecutor accuses LEO D. VILLAN, CLARINDA I. CATIMPO, FREDDIE SARROL, NESTORIO
IBNEZ and ROMMEL C. JAVIER of the crime of Libel (Vio. of Art. 355 of the
Revised Penal Code), committed as follows:
That
on or about the 7th day of March 2003, in the Municipality of San Juan, Metro
Manila, Philippines and within the jurisdiction of the Honorable Court, the
above-named accused being then the President and Chairman of the Board, Editor
in Chief, Executive Editor, Managing Editor and Associate Editor, respectively,
of People’s Brigada News, a newspaper of general circulation not only in Metro
Manila but also throughout the entire Philippines, conspiring and confederating
together and mutually helping and aiding one another, did then and there
wilfully, unlawfully and feloniously and with malicious intentof impeaching the
honesty, virtue and reputation of the FIRST QUADRANT PHILIPPINES, INC., represented by Rhodora “Doyee”
Tactacan-Tumpalan and with malicious intent of enduring and exposing
said FIRST QUADRANT PHILIPPINES, INC. To public hatred, contempt and ridicule,
publish and circulate the document as follows:
The
Elements of Libel
By law and jurisprudence, the elements of libel can be
memorized simply by remembering the acronym DIMP, which stands for Defamation,
Identification, Malice and Publication.
To state it legally, the elements of libel are as
follows:
(a) There is
defamation on the part of a person, juridical or natural;
(b) The person
defamed is identified by name or by descriptions sufficient to pinpoint to no
other person but that person being defamed;
(c) There is malice
in the making of the defamation; and
(d) There is
publication of the defamatory item.
The ultimate
question in this case is whether or not all these elements were proven by the
prosecution as to each of the seven cases involved here.
In criminal law,
failure to prove even only one element means the crimes being charged were not
constituted and it calls for acquittal per se or by lack of evidence beyond
reasonable doubt.
The
Evidence Presented by the Prosecution
In their attempts to prove their cases, the prosecution,
through the private prosecutor, presented witnesses and marked documents as
exhibits.
There are only
two witnesses presented by the prosecution and these are the following:
1.
RHODORA TACTACAN-TUMPALAN, supposed to be the
representative of the private complainant corporation, First Quadrant Philippines, Inc.; and
2.
DIONESIO MEDENILLA.
The first witness
seated by the private prosecution was Medenilla, who was only made to identity
the judicial affidavit with the conformity of the original counsel of the
accused and made to identity accused Leo Villan.
Atty.
Jose Rizal Vicente, who is now deceased, was the original counsel of Villan. But the defense counsel opted not to conduct
any cross examination.
Because the
judicial affidavit of Medenilla was admitted and marked as EXHIBIT “I,” the
materiality of his testimonies to the seven cases of libel here can be found in
his Judicial Affidavit.
In his Judicial
Affidavit, Medenilla testified on the following:
1.
That on March 14, 2003 a group of dealers and their
security guard brought to him a person named Rey V. Adgay;
2.
Rey V. Adgay was identified to him by their dealers
as the same person seen on various other dates distributing copies of People’s
Brigada News to those persons loitering around the premises of the offices of
First Quadrant in Greenhilss, San Juan;
3.
That this Rey V. Adgay surrendered his
identification card to the security personnel of First Quadrant and Medenilla
photocopied the ID of Adgay and this photocopy was marked by Medenilla as EXHIBIT “X”;
4.
In that ID, Medenilla said that in the same ID it
was indicated that Adgay was the Circulation Manager of People’s Brigada News;
5.
Medenilla further stated that he asked Adgay as to
why he was circulating copies of that March 14, 2003 issue of People’s Brigada
News and he said that Adgay confessed the latter was just instructed to do so
by the management of the newspaper;
6.
Medenilla also presented a copy of the same issue of
the newspaper and he identified it as EXHIBIT
“O” and “O-1”;
7.
Medenilla also identified accused Leo Villan in open
court;
8.
Medenilla also presented copies of other issues of
People’s Brigada News, dated March 7, 8 and 11, which were already marked as EXHIBITS “N”, “N-1”, “N-2”, “O”, “O-1”,
“O-2”, “P”, “P-1” and “P-2.”
9.
Medenilla, however, did not testify as to how he got
hold of these other copies of alleged issues of People’s Brigada News;
10.
Medenilla also did not identify who these “dealers”
that he was referring to in his Judicial Affidavit;
11.
Medenilla also
identified and marked as EXHIBIT “M”
his Affidavit that he submitted before the Office of the City Prosecutor aof
San Juan City; and
12.
The
declarations sworn to by Medenilla in his Affidavit are the same as those in
the Judicial Affidavit, save for others that are not material anyway.
Analyzing the evidence presented through Medenilla, it
readily shows that it cannot be concluded that Rey V. Adgay was indeed
connected to accused Leo Villan, and can also never be said that he conspired
with Villan.
First,
with Medenilla alone it cannot be sufficiently concluded that what he declared
are the truth.
The problem of the private prosecutor is it did not
present the alleged security guard and “dealers” who he claimed to have bodily
brought Rey V. Adgay to him.
His presentation of a copy of the March 14, 2003 was
not enough to prove that what he declared with respect to Adgay were true. It is because a copy of the same issue can be
secured from elsewhere or by other means.
At the same time, it cannot also prove that the March 14, 2003 issue of People’s Brigada News really exists
because it is possible that anybody can just produce and print the same.
It boiled down to the fact that Medenilla as a witness
he did not prove the fact of malice, did not prove the fact of publication, did
not prove the fact that in the alleged incident that Rey V. Adgay was bodily
brought to him, did not prove the fact that there was a connection between Rey
V. Adgay and accused Villan, did not prove that fact of defamation because the
fact of existence of the March 14, 2003 issue was not proven by him alone, and,
in the same line of argument, did not prove the fact of publication because of
lack of witnesses to corroborate the claim that Adgay indeed distributed copies
of the pertinent issues of People’s Brigada News.
Medenilla’s testimony alone cannot also prove the
existence of alleged other issues of People’s Brigada News as to the issues of
March 7, 8 and 11, all of 2003.
The only way for the prosecution should be to present
more witnesses on the allegations made by Medenilla.
But what is important for now is that not a single
element of libel has been proven even by mere substantial evidence degree.
This now opens to consider the next witness, Rhodora
Tactacan-Tumpalan.
In the Transcript of Stenographic Notes of witness
Tumpalan, she just identified her Judicial Affidavit and reiterated the
markings of the attachments to her Judicial Affidavit. In short, Tumpalan rested her case and the
case of First Quadrant only on the contents of her Judicial Affidavit.
In the same TSN and Judicial Affidavit of Tumpalan,
she testified on the claimed damage to the reputation of First Quadrant Philippines,
Inc. and to the reputation of her person. As to her person, Tumpalan attempted to
prove her reputation by her curriculum vitae, articles about her, television
appearances, speaking engagements, etc.
As for her authority to file libel cases for and in
behalf of First Quadrant, the only proof cited in the TSN and the Judicial
Affidavit of Tumpalan is a SECRETARY’S CERTIFICATE.
A secretary’s certificate may be sufficient in a civil case to
prove the fact of the existence of authority of the delegate or agent of the
corporation. But in a criminal case, it
is not enough because the requirement is proof beyond reasonable doubt. The fact that it is relatively easier to
execute a secretary’s certificate behoves the private prosecutor to prove that
the secretary’s certificate was genuine by presenting either the board resolution
as the source documents and the person herself who certified as the
secretary. This is just like in a notice
of dishonor of checks, that if the accused denied having received the same the
registered mail and the proof of delivery of the registered mail can only be
sufficient for a civil case but not in a criminal case. Be it noted that the presumption of innocence
cannot be defeated by another presumption, but only by proof beyond reasonable
doubt.
It is noticeable also that the TSN and the Judicial
Affidavit of Tumpalan did not present any evidence of the existence of First
Quadrant Philippines, Inc. Not one
Articles of Incorporation and By-Laws was presented. If this is so, there is no proof beyond
reasonable doubt that the person of First Quadrant Philippines, Inc. existed
during the time of the commissions of the alleged seven crimes of libel.
It is also noticeable in the TSN and the Judicial
Affidavit did not furnish proofs of existence of the publications of the
alleged articles. These TSN and Judicial
Affidavit merely presented copies of alleged issues of People’s Brigada News.
They merely presumed that these indeed existed.
They did not present a certified true copy from the National Library
that keeps tabs of all newspapers through ISBNs. In the face of the strict
requisite of proof beyond reasonable doubt, the prosecution has the burden of
going beyond submitting copies of supposed issues of a newspaper that is easy
to be made by persons other than the accused.
The Evidence
Presented by the Defense
On the part
of the defense, the defense presented his Counter-Affidavit submitted to the
preliminary investigation as his direct testimony.
During the
cross-examination of accused Villan, the private prosecutor focused his
questions on the supposed involvement of Villan to TPG, said to be another
multi-level selling company selling insurance products.
Also, it was
repeatedly told by Villan during the cross-exam that he instructed his
editor-in-chief Cantimpo and reporter Laurente to get the side of First
Quadrant Philippines, Inc. before publishing the complaints of persons
complaining against First Quadrant. In
effect, Villan was maintaining that he instituted measures that should be fair
to the subjects of the stories to be published in People’s Brigada News as
being owned by him.
Also, it was
established during the cross-examination that Villan as the owner was not
involved in the editing and writing of the news articles as these duties were
on the shoulders of the editorial staffers led by Cantimpo. He made it clear he was not even a publisher.
Then, after
the undersigned entered appearance as the new counsel vice Atty. Vicente, it
led to the presentation of one more witness in the person of Rommel Mirasol, the
long-time driver of Villan and of People’s
Brigada News.
In his
testimony, Mirasol testified that he drove Cantimpo and Laurente to the office
of First Quadrant Philippines, Inc. and he heard the two complaining that they
were not entertained by First Quadrant Philippines, Inc. and that they were
even driven away.
This
testimony of Mirasol confirmed that assertion of Villan during the latter’s
cross-examination that he insisted on his editorial staff to get first the side
of First Quadrant before publishing the complaints of the complainants who went
to People’s Brigada News.
In short,
the defense presented evidence that the accused had been diligently telling his
staffers to be fair with the persons who were the subject matters of the
stories to be published in People’s Brigada News.
Officially,
the accused submitted Offer of Exhibits consisting of EXHIBIT “14” up to EXHIBIT “14-R” that consisted of his
Counter-Affidavit and annexes therein and the Judicial-Affidavit of Rommel
Mirasol as EXHIBIT “15” in series.
Jurisdictional
Issues
It is being made of record that the accused is
registering his continuing objection to the acquisition by this Honorable Court
of jurisdiction over the instant cases.
For the record, the accused through the new counsel
questioned the jurisdiction of the court by filing a motion to quash.
The bases used in questioning jurisdiction are that all
the informations do not alleged facts needed to vest jurisdiction on the part
of the court.
Specifically, these facts that were not stated in the
informations are:
1.
The fact of where was the place of
printing and the place of first publication of the questioned published
articles at the time of the commission of the alleged crimes of libel;
2.
The fact of whether the offended
party was a private individual or a public employee at the time of the alleged
commission of the crimes of libel; and
3.
If the offended party was a private
individual, the fact of the residence of the offended party at the time of the
commission of the alleged crimes of libel.
The Honorable Court admitted in its resolution denying
the motion to quash that indeed the informations do not state the facts stated
above. In the opinion of the Court, it
was enough that the elements of the crimes of libel were stated in the same
informations.
With due respect, the accused has a contrary opinion:
that these jurisdictional facts must be stated in compliance with the Agbayani vs Sayo[1]
doctrine.
The accused filed a motion for reconsideration and the
Honorable Court maintained its stand.
The accused therefore filed a petition for certiorari
and prohibition before the Honorable Court and the case was docketed CA-G.R. SP
No. 127209.
The Court of Appeals required the private prosecutor
to file its comment and the private prosecutor complied with. Up to now, the
case with the CA is still pending.
Motion to Suspend
Proceedings
In view of
the pending petition before the Court of Appeals, it is respectfully moved of
the Honorable Court to issue an order suspending the proceedings of the instant
cases.
The
suspension is necessary in the name of “judicial courtesy.”
This judicial courtesy is necessary so as not to
render moot and academic the resolutions of the issues of lack of jurisdiction
based on grave abuse of jurisdiction.
Relatively a new doctrine, judicial courtesy was first
enunciated in Republic vs Sandiganbayan[2].
For the
enlightenment of this Honorable Court, the lesson from Republic of the Philippines vs
Sandiganbayan, et al, is hereby reiterated, to wit:
There
are of course instances where even if there is no writ of preliminary
injunction or temporary restraining order issued by a higher court, it would be
proper for a lower court or court of origin to suspend its proceedings on the
precept of judicial courtesy. As this Court explained in Eternal Gardens Memorial
Park v. Court of Appeals:
Although
this Court did not issue any restraining order against the Intermediate
Appellate Court to prevent it from taking any action with regard to its
resolutions respectively granting respondents' motion to expunge from the
records the petitioner's motion to dismiss and denying the latter's motion to
reconsider such order, upon learning of the petition, the appellate court
should have refrained from ruling thereon because its jurisdiction was
necessarily limited upon the filing of a petition for certiorari with this
Court questioning the propriety of the issuance of the above-mentioned
resolutions. Due respect for the Supreme Court and practical and ethical
considerations should have prompted the appellate court to wait for the final
determination of the petition before taking cognizance of the case and trying
to render moot exactly what was before this court x xx (Emphasis and
underscoring supplied)
A
reading of Eternal Gardens Memorial Park shows that the appellate court’s failure
to observe judicial courtesy which was frowned upon by this Court lay in its
recall of its (the appellate court’s) Orders expunging from the records the
Motion to Dismiss filed by the therein petitioner, which Orders were the orders
being questioned before this Court via a petition for Certiorari and Mandamus.
Such act of the appellate court tended to render moot and academic the said
petition. No parity of circumstances obtains in the present case, however,
where merely setting the case for trial would not have the effect of rendering
the present petition moot.
This
Court explained, however, that the rule on "judicial courtesy"
applies where "there is a strong probability that the issues before the
higher court would be rendered moot and moribund as a result of the
continuation of the proceedings in the lower court [or court of origin]".
A
final word. This Court takes notice that in most cases where its interlocutory
orders are challenged before this Court, public respondent, Sandiganbayan,
suspends proceedings in the cases in which these assailed interlocutory orders
are issued despite the non-issuance by this Court of a temporary restraining
order or writ of preliminary injunction and the absence of a strong probability
that the issues raised before this Court would be rendered moot by a
continuation of the proceedings before it (Sandiganbayan).
Ergo, the Honorable Court is requested to refrain from issuing
yet any judgment on this case until after the Court of Appeals determined the
issues brought before it.
The
Conclusions
No
libel in so far as
Rhodora
Tactacan-Tumpalan
Is
concerned
In so far as Rhodora Tactacan-Tumpalan, there is no libel
to speak of because in all seven informations for libel she is not mentioned
as an offended party.
A reading of all seven information merely shows that
Rhodora Tactacan-Tumpalan’s participation in this case has only been as
REPRESENTATIVE OF FIRST QUADRANT PHILIPPINES, INC.
In short, there is no information that has been submitted
to state that Tumpalan is the offended party.
The common phrase in all the informations is as follows:
“...wilfully, unlawfully and
feloniously and with malicious intent of impeaching the honesty, virtue and
reputation of FIRST QUADRANT PHILIPPINES, INC., represented by Rhodora “Doyee” Tactacan-Tumpalan and with
malicious intent of enduring and exposing said FIRST QUADRANT PHILIPPINES, INC.
to public hatred, contempt and ridicule...”
In short, the informations merely state that it is only
the First Quadrant Philippines, Inc. that is the complainant and not Rhodora
“Doyee” Tactacan-Tumpalan.
To repeat, if there is any mention of Tumpalan’s name in
the information, it is only because she was the representative of First
Quadrant Philippines, Inc.
No
libel committed against
First
Quadrant Philippines, Inc.
A.
Lack of proof of existence of First Quadrant
Philippines, Inc. (FQPI)
Because of the failure of the private prosecution to
prove beyond reasonable doubt the existence of First Quadrant Philippines, Inc.
as a juridical person, then it is legally presumed that there is no such First
Quadrant Philippines, Inc. that existed as a person at the time of the
commission of the alleged libels.
Nowhere it is presented in all the exhibits and in all
the testimonies presented a proof beyond reasonable doubt of the existence
of First Quadrant Philippines, Inc.
Not one Articles of Incorporation and By-Laws was
presented.
Not one certification from the Securities and Exchange
Commission (SEC) was presented.
Neither the duly-constituted officer of the SEC was
called in to testify on the existence of First Quadrant Philippines, Inc.
B.
Lack of proof of authority to file libel on behalf
of FQPI
A review of the
exhibits and the testimonies presented by the private prosecution readily shows
that that the only proof presented to prove the fact of the existence of
authority of Rhodora Tactacan-Tumpalan to file these cases of libel against the
accused is only a SECRETARY’S CERTIFICATE.
While this
secretary’s certificate would be enough as a proof of the existence of
authority in a civil case because the law vests legal presumption in it as a
corporate document, that presumption is not enough to defeat the presumption of
innocence of the accused.
This is because the
Constitution is very strict in declaring that ONLY A PROOF BEYOND REASONABLE
DOUBT CAN DEFEAT THE PRESUMPTION OF INNOCENCE OF ANY ACCUSED.
To begin with, a
presumption cannot defeat another presumption. And for the defeat to come, the
presumption that must win must be the one whose proof is elevated to the level
of “clear and convincing” evidence.
In the instant
case, the private prosecution did not present even the affiant-secretary.
It did not even
present what is supposed to be the source document, a BOARD RESOLUTION passed
by the board of FQPI.
Under Article 360
of the Revised Penal Code, crimes against honor consisting of imputations
imputing crimes cannot be maintained ex-officio and it must have the consent of
the person whose honor is at stake for the prosecution of libel to be allowed.
The last
paragraph of Article 360 is as follows:
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.
approved June 15, 1955, R.A. 4363, approved June 19, 1965).
In the instant
case, the defamation consists of fraudulent acts constituting estafa or
swindling, a crime under the Revised Penal Code.
So that if there
is no consent from FQPI, even assuming it existed although not admitted, still
there is no authority to speak of for Rhodora Tactacan-Tampulan to file these
cases of libel against the accused.
C.
Lack of proof of existence of publication
With due respect
to the private prosecution, it failed to prove the existence of the publication
of the alleged defamatory items.
A review of the
exhibits and the testimonies readily shows that aside from presenting the
alleged copies of People’s Brigada News the prosecution did not present any
evidence to prove that these indeed existed.
There is still
doubt that lingers whether or not these alleged issues of People’s Brigada News
indeed existed. The doubt is because of
the fact that it is still possible for any person to manufacture newspaper and
make it appear that it indeed was published.
The ease to do this has been revolutionary because of the invention of
desktop publishing.
The prosecution
should have presented officials of the National Library to prove that the
copies of the issues of People’s Brigada News that they presented indeed
existed.
It is a judicial
notice that the National Library requires all publications to be registered
with it and all those that registered shall be given the corresponding unique
number called ISBN or International Standard Book Number.
D.
Lack of proof that the copies presented were
authentic
The prosecution
also did not exert any effort to prove that those alleged copies of issues of
People’s Brigada News were indeed the same copies of People’s Brigada News as
published.
The prosecution
did not even ask the accused to confirm all those copies whether these were
authentic to have been published by People’s Brigada News.
For failing to do
this, let the prosecution suffer.
E.
Lack of proof of malice
The prosecution
also failed to sufficiently prove the existence of malice.
In the face of
the defense of the accused that he caused the diligent efforts to be done to
get the side of FQPI and in the face of the fact that this was corroborated by
Rommel Mirasol, the driver of the accused, as he was even the one who drove
editor-in-chief Cantimpo and reporter Laurente to the office of FQPI to get the
side of FQPI, it behoves the prosecution to rebut these.
But the
prosecution chose to rest its case and did not avail of the right to submit
rebuttal evidence.
F.
Lack of proof of actual malice
In libel, malice
is different. It is not the usual ill
will, hatred or motives of revenge or gain.
In libel, particularly
imputations dealing with public figures, it is already a doctrine espoused and
firmly imprinted on the stones of jurisprudence that malice must only be ACTUAL
MALICE.
Actual malice is
not founded on hatred, envy or motive of gain.
Actual malice is
founded on falsity of the imputation.
So that if the
prosecution fails to prove that the matters involved in the imputation are
false, then there is no actual malice.
Actual malice is
defined by jurisprudence as publishing an imputation despite the knowledge it
was false or publishing with reckless disregard on the truth or falsity of the
imputation.
So that if the
publisher or author knew beforehand that the matter to be published were false
and yet he proceeded in publishing the same, that is ACTUAL MALICE.
But if he
published that matter because it was true, it is NOT ACTUAL MALICE EVEN IF THE PUBLISHER HAS MOTIVES OF HATE,
REVENGE OR GAIN AGAINST THE PERSON TO WHOM THE IMPUTATION IS TO BE ASCRIBED.
So that if the
publisher or author were confronted by the circumstance that it was highly
improbable to believe in the imputation and yet he proceeded in publishing the
same, there is ACTUAL MALICE.
But if the
circumstance is that the accused made efforts to get the side of the person
against whom a defamatory matter was to be published, there is no malice,
actual or otherwise.
Ergo, the instant
cases, if it were to be proceeded despite the necessity to observe judicial
courtesy, the conclusion is only one.
There is NO
LIBEL.
The Prayer
WHEREFORE, it
is prayed of the Honorable Court to admit this Memorandum and consider the same
in the process of making the judgment of these seven counts of libel.
Other reliefs
just and equitable are also prayed for. Respectfully submitted. Manila for
Pasig City. July 15, 2013.
RENTA PE CAUSING
SABARRE CASTRO & ASSOCIATES
Unit
1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila
Emails:
totocausing@yahoo.com, berteni.causing@gmail.com;
Telephone No.: +632-3105521
By:
BERTENI CATALUÑA
CAUSING
IBP
No. 876498 / Manila IV / 10-01-2013
PTR
No. 1435314 / Manila / 10-01-2013
Roll
No. 60944 / MCLE No. IV -0007338 / 08-10-2012
Cc:
JULPIHIR U.
JALAMBO
Trial Prosecutor, OFFICE OF THE CITY PROSECUTOR, San
Juan City
PRECIOSA R. PERLAS
Private
Prosecutor, Suite 3304 A & B, 33/F, Philippine Stock Exchange Center,
West
Tower, Exchange Road, Ortigas Center, Pasig City
Explanation
Far distance and lack of manpower compelled the service
of copy of this Memorandum to the other party by registered mails.
BERTENI CATALUÑA
CAUSING
Comments