First of my arguments vs disbarment suit filed by Napoles

First of my arguments vs
disbarment suit filed by Napoles



By BERTENI "TOTO" CATALUNA CAUSING
(The only blogger and the only lawyer to have been sued for libel and disbarment at the same time just because of blogging for the people, courtesy of Janet Lim-Napoles and her lawyer Lorna Kapunan)

 As I prepare to cross swords with Atty. Lorna Kapuna, I post here the first of dozens of my counter-arguments against their insistence that I violated the Lawyer's Oath and the Code of Professional Responsibility.
 
The theme of the disbarment complaint filed by Janet Lim-Napoles against me is that I should be stripped of my license to practice as a lawyer because I wrote a libel when I blogged a story that her daughter Jeane Lim Napoles displayed arrogantly extremely-lavish lifestyles during a period of acute public want in the Philippines.

Now, this is my first among the dozens of counter-arguments against her.

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. 

In her case, she said that her daughter was hospitalized because of the blog articles that I wrote and uploaded onto my blogspot account.  But she never even submitted a medical certificate to prove that fact.    Further, she never even submitted any affidavit of her daughter stating how she suffered from the blog articles I wrote.   Janet Lim Napoles also did not submit ny proof that she was authorized by her daughter to file a disbarment or libel suit on behalf of the daughter.

She also did not submit evidence to show several people shun away from them or considered them outcasts because of the blog articles I wrote and published. 

For all she knows, the massive nationwide public contempt that Janet Lim Napoles has gotten can be said more of a proximate result of the daily publications of television networks and newspapers about the Priority Development Assistance Fund (PDAF).  My blog articles about here were only two, unlike the daily bombardment she has gotten from the Inquirer and other print publications and television stations.

I may concede that she has been identified in my blog articles.

I may also concede that these blog articles she complained about were published on my personal blogsite 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.

She is required to submit evidence of malice because she was already a public figure at the time I posted the two blogs on my blogsite.

In this case, Article 354 of the Revised Penal Code does not apply because, as I said, she has already thrown herself into the vortex of controversy by the time these two blogs were posted online.

What apply now are the privileged communication doctrines.  In my 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 matters 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 to cross-check the truth of such imputation.

With the fact that 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, how could I be said that I was wrong to have written and blogged a very harsh opinion that from some of the stolen billions of pesos in Pork Barrel Funds came the Hublot watch worth more than one million pesos that was worn and displayed by her daughter Jeane Lim Napoles along with other expensive apparels?

So that if I 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 me before the Office of the City Prosecutor of Taguig City.
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