Wednesday, September 25, 2013

ANSWER TO DISBARMENT CHARGE OF JANET LIM-NAPOLES

ANSWER TO DISBARMENT CHARGE 
OF JANET LIM-NAPOLES


Without any intention of soliciting sympathy from friends and relatives of Atty. Berteni "Toto" Cataluña Causing, who are naturally-inclined to support him, and the public, Toto is posting his Answer against the charge of Janet Lim-Napoles that he should be stripped of license to practice law just because he posted two (2) blogs about the lavish lifestyles of Jeane Lim Napoles, youngest daughter of Janet.

Rather, this poster insists that this is posted only to inform the public of the disbarment proceedings filed against Toto for the purpose of transparency and for purposes of educating the public in this one public-interest case.

Toto knows that the Commission on Bar Discipline is constituted by men and women who are trained in the science of wading through factual and legal issues that they cannot be swayed even by the contrary public outcry.  So that Toto has no intention of influencing them and that it is a fact that it is improbable to be able to influence the IBP.

Toto invoked the defense that the two blogs he posted were his exercise of the freedom of expression, of speech, and of the press and that this right is not diminished by the fact that he is a lawyer.

It is being stressed that everybody must look at this objectively and express his or her opinion without fear.




Republic of the Philippines
Integrated Bar of the Philippines
COMMISSION ON BAR DISCIPLINE
Julia Vargas Avenue, Pasig City




JANET LIM-NAPOLES,
                                      Complainant,


          - versus -                                           CBD Case No. 13-3908



ATTY. BERTENI C. CAUSING,
                                      Respondent.
x----------------------------------------------x


Verified Answer
In the Name of The
People of the Philippines



          In the name of the People of the Philippines, respondent Atty. Berteni Cataluña Causing, a Filipino and a law-abiding citizen who wants no less than clean governance, specifically on money matters, respectfully files this Verified Answer.



The Prologue



          The respondent here has been a passionate lover of the freedom of expression, of speech, and of the press.

          To him, these freedoms are as sacrosanct as the Constitution treats them that no law shall abridge them.

          The respondent has been a journalist since 1989. He was a sportswriter at first. He rose to become a deskman of the news desk of People’s Journal Tonight, which holds the record as the biggest circulated in the Philippines in the 1990s, selling 400,000 copies a day despite the fact that it was only sold within Metro Manila being an afternoon newspaper.    In 1998, he was promoted to the position of news editor by no less than by the most legendary press freedom fighter of all time, Joe Burgos Jr.   He left People’s Tonight in 2004 and became the managing editor of Kabayan English tabloid that was closed due to brushes with the Arroyo administration.    So that it is easy to see that the blood of a journalist and opinion writer cannot be separated from him.     It is in this context that the two controversial blogs involved in this case were written and published online.   It is therefore not connected to his being a lawyer.

          To reiterate, the blog articles being referred to in this Complaint for Disbarment are all about freedom of expression, of speech, and of the press.  And if these are about these sacred rights that are among the highest in the tiers of human rights, how else could it be a source of a cause of action for disbarment if there is no act of lying on the part of a lawyer-blogger? 

Libel, may be possible. But disbarment, no way.

A disbarment complaint is an administrative case for lawyers and it must apply on acts that are directly connected with the duties, responsibilities, and standing of a person who is a lawyer.

A lawyer may be guilty of homicide. But his conviction for that can never be considered a ground for disbarment or other minor disciplinary sanctions: even if he violated the law, the law on “thou shalt not kill.”

A lawyer may be guilty of rebellion.  But this can never be fathomed as a ground for disbarment.

A lawyer may be guilty of any traffic violation or any reckless imprudence.  But this can never be thought of as sufficient to disbar him.
         
A lawyer may be guilty of slander by deed or otherwise.  But this can hardly fit as a ground for disbarment.

          A lawyer may be guilty of libel.  But any justification would be hard to be found to disbar him for that.

          All these the respondent says without fear of contradiction that the instant complaint for disbarment must be barred.

          In gist, the statements above posit that if the lawyer-blogger did not commit any act of lying or that there is no proof that he lied, there can never be a room for disbarment or lesser disciplinary sanction.



The Answer Proper



          The denials or admission of the respondent are specifically written in seriatim, paragraph per paragraph in accordance with the paragraphing done by the complainant in her Complaint for Disbarment.


Paragraph 1

          The respondent denies the statement in this paragraph because he does not have personal knowledge about the allegations therein. He therefore is incompetent to state whether it is true or not.


Paragraph 2

          This paragraph is admitted.


Paragraph 3

          The respondent denies the statement that the two articles subjects of this Disbarment Complaint are libelous, there being no malice, actual or otherwise.

          The respondent stresses that while the blogs presented proofs of lavish lifestyle of the youngest daughter of the complainant, the intention was good. 

It was because the intention was to express his opinion that was his perfect right and at the same time to inform the people of the existence of this youngest daughter of a woman who has been denying the news articles released by Inquirer quoting its sources as saying that this woman, Janet Lim-Napoles, had been stealing public funds from the Priority Development Assistance Fund (PDAF) allotted to legislators totaling to 10 billion.

          To inform does not mean to induce.

          To inform is merely to inform.  With “to induce” is an act calculated in a manner that there is that conscious making of statements telling the people to believe in the writings because the factual recitals are true, tacitly or expressly.

          Nevertheless, there is nothing wrong in inducing the people to believe in the cause being fought for.  This is activism.  This is advocacy.

Looking at the facts used by the respondent, these consisted of the photographs copied from the Tumblr account of the youngest daughter of Janet Lim Napoles.    It is noted that the complainant has never denied that these photographs came from her daughter’s Tumblr account.      To the contrary, the complainant even charges the respondent of stealing these photos from her youngest daughter, Jeane Lim Napoles.    If she said it was stolen from her daughter’s Tumblr account, it means that the photos copied by the respondent are authentic.     By the way, copying the photos of Jeane Lim Napoles from her Tumblr account can never be said to be stealing: copying is one thing and stealing is another thing.    The fact that her daughter even posted these photos in a public domain like the internet is in itself a proof that she has consented to the copying of her photos by others.      The fact that it was copied is a proof that there was no privacy setting limiting it to be seen by persons other than the owner of the Tumblr account.     It is as simple as this: a private setting in any account, Tumblr or Facebook, makes the contents of that private account invisible to persons other than the account owner.  And if it cannot be viewed, then there is no possibility that other persons can copy the photos not viewed even if the link or the URL is attempted to be opened by any web browser.

Now, the theme of the disbarment complaint filed by Janet Lim-Napoles against is that the respondent should be stripped of license to practice as a lawyer because he wrote libels when he blogged two stories that her daughter Jeane Lim Napoles displayed arrogantly extremely-lavish lifestyles during a period of acute public want in the Philippines.

First, the complainant has no basis or any factual or legal support to conclude that the articles she referred to are libels.    It takes more than just an assertion to say that the said articles are libels.

To say that these articles she referred to are libels, the complainant must show clear and convincing evidence to show the existence of the elements of libel as defined under the Revised Penal Code, which elements are as follows:

a.    Defamatory imputation;

b.    Identification of the person to whom the defamatory imputation was ascribed;

c.    Malice in ascribing the defamatory imputation to the same person; and

d.    Publication of the said imputation.

Other than assertions, the complainant has never submitted any evidence to show that the imputation she identified is defamatory. 

And to show it is defamatory to her person, she must demonstrate clearly first before she can be permitted to sue.    This is because it can never be presumed that one phrase or defamatory item is indeed defamatory.  To say a sweeping statement it is defamatory is erroneous.

In her case, she said that her daughter was hospitalized because of the blog articles that the respondent wrote and uploaded onto his Blogspot account, www.totocausing.blogspot.com.    But she never even submitted a medical certificate to prove that her daughter was hospitalized.   

Further, Janet Lim-Napoles never even submitted any affidavit of her daughter stating how she suffered from the blog articles written by the respondent.     Janet Lim Napoles also did not submit any proof that she was authorized by her daughter to file a disbarment or libel suit on behalf of the daughter.

Janet Lim-Napoles also did not submit evidence to show that it is the blog articles of the respondent that caused the people to shun away from them or to consider them outcasts. 


For all she knows, the massive nationwide public contempt that Janet Lim Napoles and her family have gotten can be said more of a proximate result of the daily publications by television networks and newspapers about the Priority Development Assistance Fund (PDAF) that have been pocketed.  

The respondent’s blog articles about the lifestyles of the youngest daughter of Napoles maybe nothing compared to the daily bombardment they have gotten from Inquirer and other print publications and television and radio stations nationwide.

The respondent may concede that she has been identified in his blog articles.

The respondent may also concede that these blog articles she complained about were published on his personal Blogspot account, located at www.totocausing.blogspot.com.

But there is no element of malice. 

That is aside from the fact that she did not submit any evidence of malice.

Janet Lim Napoles is definitely required to submit evidence of malice because she was already a public figure at the time the respondent posted the two blogs on his blog site.

In this case, Article 354 of the Revised Penal Code does not apply.    This is because she was already a public figure when the blogs in question were posted online.     She was already a public figure that time because she has already thrown herself into the vortex of controversy by the time these two blogs were posted online.   She threw herself into the vortex of the controversy when she came out denying the accusations against him by the so-called “whistleblowers”, including Benhur Luy, her cousin who spilled the beans after he was rescued by National Bureau of Investigation (NBI) agents from the hands of Janet Lim Napoles.    Her coming-out happened days before these blogs were posted by the respondent.

Supporting the statement in the immediately-preceding paragraph is a ruling in Borjal vs Court of Appeals, 126466, January 14, 1999, that says:

But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in the FNCLT, would not qualify as a public figure, it does not necessarily follow that he could not validly be the subject of a public comment even if he was not a public official or at least a public figure, for he could be, as long as he was involved in a public issue.  If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved.   The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the participant's prior anonymity or notoriety.

There is no denying that the questioned articles dealt with matters of public interest.  A reading of the imputations of petitioner Borjal against respondent Wenceslao shows that all these necessarily bore upon the latter's official conduct and his moral and mental fitness as Executive Director of the FNCLT.  The nature and functions of his position which included solicitation of funds, dissemination of information about the FNCLT in order to generate interest in the conference, and the management and coordination of the various activities of the conference demanded from him utmost honesty, integrity and competence.  These are matters about which the public has the right to be informed, taking into account the very public character of the conference itself.


          In this case, there is no denying that Janet Lim-Napoles was already a public figure because she was involved in a public issue, the PDAF thievery issue.

So that what clearly apply now are the privileged communication doctrines. 

In this case, the specific privileged communication doctrine that applies is the Fair Comments Doctrine, which was given birth by Borjal vs Court of Appeals, G.R No. 126466, January 14, 1999.

The doctrine of fair comments does not respect whether the offended party is a private person or not.

What is important is that the issues or the matters involved are of public interest. 

In the case of Janet Lim-Napoles, the matters involved revolved around the pork barrel, particularly on whether these were stolen by Janet Lim-Napoles in connivance with lawmakers. 

And if the issues are matters of public interest, the doctrine of fair comments applies as a matter of course.   And if it is so, then the only measurement of whether malice exists or not is whether there is Actual Malice in the publication of the questioned imputations.

Now, actual malice means either an act of publishing a defamatory imputation that is false and the publisher knew such falsity even before he or she published the same; or an act of publishing a defamatory imputation with reckless disregard of the falsity of the imputation that by its nature should have required from the publisher a cross-checking of the truth or falsity of such imputation.

It is very clear, actual malice is founded on falsity.

So that the basic issue now is whether or not the respondent lied when he presented the photographs he copied from the Tumblr account of Jeane Lim Napoles, the contents of that photographs, the premise that Janet Lim Napoles stole from the Pork Barrels or the Priority Development Assistance Fund (PDAF) allotted to lawmakers, and the imputation that those million-peso-worth of apparels worn by Jeane Lim Napoles.

To stress: Did the respondent lie on those items?

Stated otherwise: Are those items false?

Before answering the issue, the Fair Comments Doctrine does not require absolute truth in the facts used by the opinion maker.  It only requires that at the time of the making of the opinions or comments that facts recited as the bases are reasonably true at the time of the making of the opinions and it does not matter even if those facts relied upon by the opinion maker turned out to be false after the publication.

With the fact that Inquirer and the National Bureau of Investigation (NBI) were already treating the revelations of the whistleblowers with serious concerns is sufficient for the respondent to reasonably rely on the statements published as true, particularly those statements that said that Janet Lim-Napoles faked documents in order for her to pocket PDAF funds in connivance with legislators.  The dates of publication of the blogs and the dates when Inquirer came out with a series of news articles will show that the blogs here were published only after the Inquirer series was published.

The first blog, “Meet girl in extremely-costly lifestyles using some of P10-B pork barrel of the people?,” was posted online on July 19, 2013.  It can be read at this website: http://totocausing.blogspot.com/2013/07/meet-girl-in-extremely-costly.html,

The second blog, “Napoles daughter 'legalized' 'stolen' billions; Celebrated expensive 21st b-day in Hollywood,” was posted online on July 30, 2013.  It can be read at this website: http://totocausing.blogspot.com/2013/07/napoles-daughter-legalized-stolen.html.

Now, the first story of Inquirer, “NBI probes P10-B scam,” was posted online on July 12, 2013.  It can be read at this website:  http://newsinfo.inquirer.net/443297/nbi-probes-p10-b-scam.

The second story of Inquirer, “I am not involved in any scam,” was posted online on July 13, 2013.  It can be read at this website: http://newsinfo.inquirer.net/443825/i-am-not-involved-in-any-scam.

The third story of Inquirer, “How P10-B racket works”, was posted online on July 14, 2013.  It can be read at this website: http://newsinfo.inquirer.net/444275/how-p10-b-racket-works.

The fourth story of Inquirer, “28 solons linked to scam,” was posted online on July 15, 2013.  It can be read at this website: http://newsinfo.inquirer.net/444693/28-solons-linked-to-scam.

The fifth story of Inquirer, “Malampaya fund lost P900M in JLN racket,” was posted online on July 16, 2013.  It can be read at this website: http://newsinfo.inquirer.net/445585/malampaya-fund-lost-p900m-in-jln-racket.

The sixth story of Inquirer, “Napoles: We control gov’t,” was posted online on July 17, 2013.  It can be read at this website: http://newsinfo.inquirer.net/446383/napoles-we-control-govt.

Additionally, it cannot be denied that Inquirer has been enjoying high reputation for believability in the news stories it publishes.

So that by the time the first blog of the respondent was published, the foundations of truth had already been solid for Inquirer to publish an imputation that Janet Lim-Napoles stole money from the PDAF of lawmakers.

There is therefore no issue that at the time of the posting of the two blogs in question the respondent was already too reasonable in believing in the truth of the imputation that Janet Lim-Napoles stole from the PDAF of lawmakers.

After the Department of Justice and the National Bureau of Investigation have found strong probable cause that Napoles stole billions of pesos from the Pork Barrel Funds of senators and congressmen, and after the Commission on Audit has issued its official findings that most of PDAF funds were channeled to the NGOs (non-governmental organizations) identified with Janet Lim-Napoles, how could the respondent now be said that he lied in all the factual recitals he wrote and he relied on for his opinions?

Never.

After whistleblower Benhur Luy testified before the Senate Blue Ribbon Committee where he detailed in straightforward and candid manner how Janet Lim-Napoles stole PDAF funds, how can it be said that the respondent lied in all the facts he recited as basis in making opinions such as calling Janet Lim Napoles as “motherfucker” and her child as a daughter of a “motherfucker” that they must be fucked to (not “in” as suggested by the complainant) prison?

Never.

How can it be said that the respondent lied in stating very harsh opinions inferred from the fact that Jeane Lim Napoles posted online photographs with captions that she herself wrote, stating what she was wearing in each of those photos?

Imagine those captions Jeane Lim Napoles wrote like the Hublot watch worth more than one million pesos that she wore and displayed with exuding arrogance, like those nine pairs of expensive YSL Tribute shoes, like those Chanel clutch bag, like those Herve Leger dresses. 

Imagine the pictures showing her posing with biggest celebrities in the word, including Justin Bieber and Justin Timberlake.   

It is very clear: It cannot be said that the respondent lied.  And if he did not lie, then the only other possibility is he told the truth as the basis of his harsh opinions.

Actually, Borjal vs Court of Appeals drew strength from a much-earlier case, US vs Bustos, G.R. No. L-12592, March 8, 1918.

In this case, the Supreme Court, through the genius of Justice Malcolm, declared that it is a right of the people to make opinions on matters of public interest.

Said Bustos:

The interest of society and the maintenance of good government demand a full discussion of public affairs. Completely 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 the 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 of 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. (See the well considered cases of Wason vs. Walter, 4 L. R. 4 Q. B., 73; Seymour vs. Butterworth, 3F. and F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1)

Now, even if there were errors of facts in the recitals in the blogs, they clearly appear to be in ignominy: they cannot be seen.

In Borjal vs Court of Appeals, errors in gathering of facts and of publishing them do not constitute libel.  It says:

Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice.   Errors or misstatements are inevitable in any scheme of truly free expression and debate.     Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language.     There must be some room for misstatement of fact as well as for misjudgment.    Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy.   In Bulletin Publishing Corp. v. Noel  we held -

A newspaper especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community.

Yes, the respondent may have been too uninhibited, robust and wide open in expressing his opinions of Janet Lim Napoles and of her youngest daughter.

Nevertheless, US Supreme Court Justice Brennan, in the case of New York Times vs Sullivan, 376 US 254 (1964), says that even if opinions used in debates were too harsh, it cannot be a justification to say it was libel.  Brennan wrote:  “[D]ebate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on the government and public officials.”

So that if it is really to be examined, it is very clear that there is no libel.

And for Napoles to insist otherwise, it is better for her to wait first the outcome of the accompanying libel complaint she filed at the same time against this respondent before the Office of the City Prosecutor of Taguig City.

Paragraph 4

          The respondent denies this because of lack of knowledge sufficient to form a belief in the truth or falsity in the allegations.

Paragraph 5

          The respondent admits the publication of the article stated therein, but vehemently denies that it is malicious.


Paragraph 6

          The respondent admits the posting of the pictures depicting the apparels worn by Jeane Lim Napoles, but vehemently denies that the copying of these pictures from the Tumblr account of Jeane Lim Napoles is illegal.  Nevertheless, whether the copying of these photos is legal or illegal is a legal question.


Paragraph 7

          The respondent admits posting photos showing Jeane Lim Napoles beside world celebrities, but vehemently denies that the intention was to insinuate that her youngest daughter was shameless and insensitive person.



Paragraph 8

          The respondent admits the use of the word “motherfucker” as his opinion of Janet Lim Napoles.  Let it be maintained that the respondent used the word “to” in stating “fucked to prison” to figuratively mean to haul them to prison.  It is not “fucked in prison.”


Paragraph 9

          The respondent admits paragraph 9.


Paragraph 10

          The respondent admits paragraph 10.


Paragraph 11

          The respondent vehemently denies that he had that malicious and defamatory agenda of painting an ugly picture of the complainant and her family in the minds of the public.


Paragraph 12

          The respondent denies paragraph 12 because he has no personal knowledge to form a belief in the mind whether these allegations are true or false.

Paragraph 13

          While the respondent admits the existence of those comments by some readers and his reactions, he vehemently denies that these were intended to put the complainant and her family in public ridicule and cause them damage, and he vehemently denies that he was fanning and adding fuel to the fire that he sparked.

          Remember, by the time that these blogs were posted online, the public outrage can be said to have already been generated by the Inquirer series of stories.


Paragraph 14

          There is nothing to admit or deny in paragraph 14 because this merely consists of statements of conclusion of the complainant.

          Nevertheless, it is pointed out that journalism is one thing and criminal proceedings is another thing.

          In journalism, conscience is the test for the publisher and author to decide whether to publish imputations or not and the time-honored dictum that says that “an accused is presumed innocent until proven guilty” applies only to criminal court trial. 

          To put it bluntly, it applies only on the question of whether to convict an accused or not.

          In blogging or writing for publication purposes, it has different yardstick in deciding to publish or not. 

          At any rate, it is awkward and illogical for the complainant to insist that the respondent must wait firs for the court to convict Janet Lim Napoles before publishing his blogs.

Paragraph 15

          This paragraph states an opinion of the complainant as culled from court decisions.  So, this cannot be denied or admitted.

          Anyway, the respondent is sorry to tell the complainant that HE DID NOT ACT IN SO GROSS A CHARACTER TO SHOW HIM TO BE MORALLY UNFIT FOR THE OFFICE OF A LAWYER.

To be morally unfit in an act of publishing a story, there is a necessity for the complainant to prove: (a) that the respondent knew the imputations to be false yet he proceeded in writing and publishing the same; or (b) that the respondent recklessly disregarded the truth or falsity of the imputations because the imputations were of the nature that requires the publisher to first cross-check the facts.

In this case, when one of the most credible newspapers, Inquirer, already published the imputations that Janet Lim Napoles raped the PDAF funds by the billions of pesos, how can it be said now that the respondent knew that the imputations were false or of the nature that requires cross-checking of facts?

An act of publishing a false imputation despite knowledge of falsity is the only way to say that the publisher is morally unfit, being a liar.

So how can the respondent be said to be morally unfit when Janet Lim Napoles has not submitted evidence to prove that these imputations are false?


Paragraph 16

          As clearly explained above that the blog articles posted by the respondent are not libels and that there has been no evidence to prove that the facts he relied on are false, that those opinions are mere opinions although may be harsh, and that all of those were meant to inform the public of matters of public interest and meant to exercise freedom to express opinions, it can never be said to be a clear gross misconduct unbecoming a lawyer. (to state “unbecoming of a lawyer is wrong grammatically.)


Paragraph 17

          Because the respondent was not even a lawyer of any party between Janet Lim Napoles and her nemeses who are the whistleblowers, the respondent cannot be considered to be an officer of the court when he wrote that blogs.

          It may be libel, but it can never be considered an act in violation of the Code of Professional Responsibility or the Lawyer’s Oath.


Paragraph 18

          Section 27 of Rule 138 of the Rules of Court does not apply in the case at bar.

          It applies to acts of lawyers in the performance of his function in that office as an officer of the court and it DOES NOT apply to acts of publishing in the exercise of freedom of expression, of speech, and of the press.

          It also applies to conviction of a crime involving moral turpitude. And in the instant case, the respondent has not been convicted of any crime.

          It applies to violations of the Lawyer’s Oath. In this case, the complainant does not even point out what particular oath in the Lawyer’s Oath that he violated.

          And if even read, there is nothing in the provisions of the Lawyer’s Oath that can apply in the case at bar.

          To make it clear, let the Lawyer’s Oath be quoted:

I___________ of ___________ do solemnly swear that I will maintain allegiance to the Republic of the Philippines;    I will support its Constitution and obey laws as well as the legal orders of the duly constituted authorities therein;   I will do no falsehood, nor consent to the doing of any court;    I will not wittingly nor willingly promote or sue any groundless, false or unlawful suit, or give aid nor consent to the same;   I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and I impose upon myself this voluntary obligations without any mental reservation or purpose of evasion. So help me God.

          Section 27 applies to willful disobedience to any lawful order of a superior court.  In the instant controversy, there is no lawful order to speak of.

          The same section applies to corrupt and willful appearing as an attorney for a party to a case without authority.  But in this case, there was no case to speak of in blogging.

          Section 27 also applies to the practice of soliciting cases for gain and there is no such thing in these two blogs.

         
Paragraph 19

          The statement is a matter of opinion of the complainant and with that it cannot be admitted or denied.


Paragraph 20

          The respondent did not violate Rule 1.02 because he did not engage in unlawful, dishonest, immoral or deceitful conduct.  To say otherwise is only an opinion of the complainant.

          As stated above, only proofs that will show the falsity of the imputations used for those opinions and that will show that the respondent knew of such falsity can the respondent be held liable.

          It is sorry to state that the complainant contented herself to opinions and allegations without supporting them with facts.


Paragraph 21

          It is stretching Canon 1 to unimaginable limits for the complainant to opine that the respondent violated the same.

          The respondent, to repeat, exercised the freedom of expression, of speech, and of the press and that the rule of “presumption of innocence does not apply in writing and publishing blogs.”  To repeat, this time-honored doctrine is only applicable when there is a case and the respondent or the accused must be presumed innocent until proven otherwise.


Paragraphs 22 and 23

          The respondent did not commit libel on two counts on those two blogs. 

          For the complainant to insist, she must prove first her libel case that she filed before the Office of the City Prosecutor of Taguig against the respondent, a blogger of Rappler.com, and reporters and editors of Inquirer.

          For her to insist libel in this proceeding is for her to cause prejudicial question to be set aside.


Paragraph 24

          The case of Remedios. Tapucar vs Atty. Lauro L. Tapucar, A.C. No. 4148.  July 30, 1998, is all about the immorality of Atty. Tapucar in cohabiting with a woman other than his wife Remedios.

          That is clearly immoral.

          It cannot be compared to the instant case where the respondent’s acts of publishing blogs are not immoral but genuine exercise of the freedom of expression, of speech, and of the press.

          There is nothing immoral for an act of a person who loves his country so much that he will write about acts that destroys the country’s government.

          To repeat, only when the respondent is proven to be lying in the imputations he published can he be considered to be immoral. 

And to think, the complainant has not even attached any proof in her complaint.

          Ergo, this case must be dismissed outright.

Paragraph 25

          Rule 13.02 of Canon 13 does not apply to the case at bar.

          It applies only to lawyers who are actively involved in cases and they resorted to publications of their causes in order to win their cases.

          In the instant case, the respondent is not even a lawyer of Benhur Luy and company.

          So that the respondent is not interested whoever wins between the complainant and the group of Benhur Luy.


Paragraphs 26 and 27

          Lest it be mistaken, there is no such a thing as “trial by publicity.”  It is only an invention of those who are guilty who found themselves being subject matters of news stories.  In short, it is only a defense mechanism to invoke such.

          Moreover, there is no such a thing as a crime or an administrative violation called “trial by publicity.”

          Nullum crimen nulla poena sine lege.  It is a not a crime when there is no law that punishes it.

          And to repeat, this is not a criminal proceeding where the accused or a respondent must be presumed innocent until proven otherwise.

          In publication, there is no such a thing as “convicted by publicity.”

          If the respondent used Blogspot as his venue for his blog stories, there is nothing that prohibits Janet Lim Napoles from using the same Blogspot to publish her defenses and lay down her proofs that all the accusations against her are false.

          While she is not prohibited and yet not availing of the tools of defenses, the presumption is she is ADMITTING SHE IS GUILTY.

          The freedom to reply in the internet is UNLIMITED.  She can post all over walls of friends and hers so that the whole world of Facebook knows that she is innocent of the charges hurled against them.

          To stress: The Constitutional right to be presumed innocent APPLIES ONLY TO CRIMINAL PROCEEDINGS, NOT IN PUBLICATIONS OF STORIES AS EXERCISES OF PRESS FREEDOM.

          So that it is also too presumptuous of the complainant to state that his intentions in blogging were to rally the people to believe in his baseless allegations to join him in perceiving the complainant and her family as “bloodsuckers” of the Philippine government.

          It is equally presumptuous for the complainant to state that it was an attempt on the part of the respondent to put an unwarranted hype and pressure for the initiation of a case against the complainant.

          For the complainant to say this is to say that Secretary De Lima and the NBI are acting under the direct control of the respondent.

          Oh my God.  How can it be possible for the respondent to dictate on De Lima and the NBI?


Paragraphs 28 and 29

          The opinion, again, of the complainant is erroneous.

          How an ordinary blogger or lawyer can have influence to the courts that he has that MAGICAL POWER to pre-empt decision-making processes of the courts?

          This is like saying that the complainant considers the respondent as a SUPERMAN in being a BLOGGER-LAWYER.

          To repeat, the blogs were an exercise of the Constitutional rights to freedom of expression, of speech, and of the press.  There was no purpose whatsoever for the respondent to influence the decision-makers for him to violate Canon 11 of the Code.

          To the contrary, the complainant must be educated that all judges and prosecutors in the Philippines are trained and educated to have the competence to decide on the merits of the cases despite the audacity of contrary opinions.

          So that it is impossible or improbable for the complainant to say that the respondent destroyed the dignity and authority of the courts.

          The complainant must be reminded that allegations and opinions are not equivalent to proofs.


Paragraphs 30, 31 and 32


          All statements made here by the complainant are matters of her opinions that the respondent respect.

          The fact that there was no court involved yet at the time the respondent posted his blogs, and the fact that until today the case of plunder out of the investigations conducted by the DOJ and the NBI is yet to be determined by the Office of the Ombudsman, it is unpleasant for the complainant to always invoke alleged MAGICAL POWERS of the respondent to influence the courts and the public.

          To say “conditioning the minds of the people” requires proof that indeed the people were conditioned by the MAGICAL POWERS of the respondent.

          There is also no proof to back up her claim that the respondent undermined the independence of the courts.

          For sure, the respondent did not violate any provision in the Code of Professional Responsibility. It is because the blogs and the circumstances that developed even proved that he did not lie.  Neither did the complainant submit any proof that the respondent lied in the two blogs.

          One thing that is very sure on the part of the respondent aside from the fact that he is innocent of the accusations of the complainant, is no other.

          He does not get payment from a client accused of plundering the country’s money. 

          If a person accused of plunder is proven guilty, where else did he get the money paid for his lawyers?



The Prayer


          WHEREFORE, it is prayed of the Honorable Commission on Bar Discipline and the Board of Governors to dismiss that instant case.

          Other reliefs just and equitable are also prayed for.  20 September 2013, Manila for Pasig City.


RENTA PE CAUSING SABARRE CASTRO & ASSOCIATES
Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila

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:

JANET LIM-NAPOLES
Detention House, Fort Sto. Domingo, Silang, Cavite


EXPLANATION

          For lack of time and distance, the above motion is served on the other party by mail.

BERTENI CATALUÑA CAUSING



Republic of the Philippines  )
City of Manila                       )SC

Verification

          I, BERTENI CATALUÑA CAUSING, of legal age, Filipino, whose office address is Unit 1, No. 2368 Leon Guinto St. corner JB Roxas St., Malate, Manila, do hereby depose and state:

1.     I wrote the foregoing Verified Answer;
2.     I read and understood the same; and
3.     All the allegations therein are true of my personal knowledge and based on authentic documents.

IN WITNESS WHEREOF, I sign this Verification on 20 September 2013 in the City of Manila.



BERTENI CATALUÑA CAUSING

          SUBSCRIBED AND SWORN TO BEFORE ME on 20 September 2013 in Manila, affiant exhibiting his IBP ID No. 60944 and Driver’s Lic. No. N02-94-241544, issued by the LTO and expiring on December 10, 2015.

Doc. No.:   ___;
Page No.:   ___;
Book No.:  ___;
Series of 2013.



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