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




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


[1] Agbayani vs Sayo, G.R. No. L-47880, April 30, 1979, 89 SCRA 699
[2] Republic of the Philippines vs Sandiganbayan, et al, G.R. No. G.R. No. 166859, June 26, 2006
Post a Comment

Popular Posts