Lack of evidence of falsity of imputation makes no libel
Lack of evidence of falsity
of imputation makes no libel
In order to educate the Filipinos, this blogger shares a Rejoinder-Affidavit intended to be filed against the libel complaint filed by Mayor Antonino Calixto of Pasay City.
If you are minded, you can read it below.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Republic of the Philippines
Department of Justice
National Prosecution Service
Office of the City Prosecutor
Pasay
ANTONIO G. CALIXTO,
Complainant,
- versus - NPS Docket No.
XV-07-INV-12J-06895
JERRY S. YAP, GLORIA M. GALUNO,
and EDWIN R. ALCALA,
Respondents,
x--------------------------------------------x
Republic of
the Philippines )
City of Pasay )SC
Rejoinder Affidavit
We, JERRY S. YAP, GLORIA GALUNO and EDWIN R. ALCALA, all of legal age,
whose respective addresses are stated below, under oath do hereby depose and
state:
1.
WHERE ARE THE EVIDENCE OF ACTUAL MALICE?
2.
The complainant has never submitted any evidence that the facts
contained in the cellphone message published in toto by the respondents are
false?
3.
The complainant, with more reason that he is a public official, must be
taught that any libel case without any evidence of actual malice presented
during the preliminary investigation is NOT ALLOWED to be filed in court.
4.
This is the teaching in many Supreme Court cases;
5.
Among these cases is Salonga vs Paño, G.R. No. L-59524,
February 18, 1985, which teaches:
The purpose of a preliminary investigation is to secure the innocent
against hasty, malicious and oppressive prosecution, and to protect him from an
open and public accusation of crime, from the trouble, expense and anxiety of a
public trial, and also to protect the
state from useless and expensive trials. (Trocio v. Manta, 118 SCRA
241; citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary
investigation is a statutory grant, and to withhold it would be to transgress
constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in
order to satisfy the due process clause it is not enough that the preliminary
investigation is conducted in the sense of making sure that a transgressor
shall not escape with impunity. A preliminary investigation serves not only
the purposes of the State. More important, it is a part of the guarantees of
freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the
fiscal or the judge as the case may be, to relieve the accused from the pain
of going through a trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no probable cause
exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed
rule for the determination of probable cause since the same must be decided in
the light of the conditions obtaining in given situations and its existence
depends to a large degree upon the finding or opinion of the judge conducting
the examination, such a finding should not disregard the facts before the judge
nor run counter to the clear dictates of reasons (See La Chemise Lacoste, S.A.
v. Fernandez, 129 SCRA 391). The
judge or fiscal, therefore, should not go on with the prosecution in the hope
that some credible evidence might later turn up during trial for this
would be a flagrant violation of a basic right which the courts are created to
uphold. It bears repeating that the judiciary lives up to its mission by
vitalizing and not denigrating constitutional rights. So it has been before. It
should continue to be so. Mercado v. Court of First Instance of Rizal, 116 SCRA
93).
6.
Reality check: the complainant mayor cannot secure the conviction of
the respondent if he will not submit evidence now, evidence that those facts
narrated in the text messages published by the respondent are false;
7.
And if ever he can submit evidence of falsity of the narrated facts in
the text messages, he has to overcome one more obstacle: PROOF THAT THE
RESPONDENTS KNEW THESE FACTS WERE FALSE AT THE TIME OF THE PUBLICATION or at
the time of the commission of the crime;
8.
Now, there are two kinds of actual malice;
9.
The first kind is knowledge of falsity of imputation;
10.
The second kind is reckless
disregard when the imputation appears strongly unbelievable;
11.
In the first kind of malice, two
requisites must be proved beyond reasonable doubt in court and if the prosecutor
cannot assure himself or herself that he or she has no evidence that can stand
the test of probable cause, he or she must dismiss the case right at the level
of the preliminary investigation;
12.
Of course, the prosecutors know
that less than half of the cases they filed in court resulted in conviction
because of loose standard of probable cause, contributing in the process to the
clogging of cases in court;
13.
This early, the prosecutor has
a good chance at rejecting the case if Mayor Antonino Calixto cannot produce
evidence sufficient to stand the test of proof beyond reasonable doubt that the
imputations in the text messages recited facts that are false, and that the
respondent had the knowledge of falsity at the time of the publication of these
text messages;
14.
So where is the evidence of
Mayor Calixto that the facts recited in the two text messages are false?
15.
There is none;
16.
His only evidence is only his
assertions or allegations;
17.
Assertions and allegations can
never be the same as evidence;
18.
And if the prosecutor insists
in filing this case in court, rest assured it will suffer defeat because this
early the respondents assure that the prosecutor cannot prove the existence of
falsity in the recitals of facts in those two text messages;
19.
Where is the evidence of Mayor
Calixto that the respondent had prior knowledge of falsity of these recited
facts?
20.
This evidence of knowledge of
falsity is the second requisite to prove ACTUAL MALICE;
21.
LET US TALK ABOUT RECKLESS
DISREGARD MALICE;
22.
In this issue, the prosecutor
must also assure self that there is sufficient evidence presented during the
preliminary investigation that the recited facts in the text messages were
false;
23.
And if Mayor Calixto cannot
produce at this stage his evidence that these recited facts are false, how can
the prosecutor have moral authority to lodge an information sheet for libel in
court?
24.
If there is no evidence of
falsity of the recited facts, there can be no reckless disregard of the falsity
of the imputations;
25.
Now, even if there are evidence
of falsity of the recited facts, Mayor Calixto has to produce evidence that the
respondent recklessly disregarded the falsity of the imputations;
26.
Libel has four elements: (a) defamation; (b)
identification; (c) malice; and (d) publication;
27.
Under the criminal law, if one
of the elements is absent, then there is no crime;
28.
So that if there is no probable
cause for actual malice because Mayor Calixto has not submitted any evidence of
falsity of the recited facts in these two messages, then there is no probable
cause sufficient to excite a belief in an impartial mind that there is a good
chance to secure conviction;
29.
The prosecution must dismiss
this case now, because, to repeat, the mayor failed to submit any proof of
falsity of the imputations, and it is very obvious he has been relying only on
a misplaced presumption of malice;
30.
If Mayor Calixto cannot even
produce the evidence during the preliminary investigation, how can he be
expected to prove actual malice during the trial?;
31.
Now, there is no obstacle for Mayor Calixto to
have his side published;
32.
Jerry S. Yap put below his logo
Bulabugin those mechanism for reactions to reach him and to provide a system
for those aggrieved to have a fair chance to refute;
33.
To be
clear, let this mechanism be quoted, to wit: “Para sa mga reaksyon, suhestiyon,
reklamo at sumbong, magtext sa 0927888991o ag-email sa JERRYAP888@YAHOO.COM...”;
34.
So that if the complainant only sent in his
text message in reply, he is assured that his voice will be heard and
published;
35.
It will be completely a different matter if
there was no mechanism whereby the aggrieved parties can appeal by having their
side published, too;
36.
Additionally, the fact that the
text messages are published in verbatim, it means that the respondents did not
exert any effort to change the spin of the messages of these text messages;
37.
The column readily shows that the respondent is not being singled out
here;
38.
In the item “MAYOR TONY CALIXTO
MAY LIQUIDATION SQUAD?” must be viewed in the light of the QUESTION MARK put at
the end of the item title;
39.
The fact that there is a question mark is a caveat to the readers that
it is nothing more than a question and being a question it does not assert that
the one written and published is the true expression of the author;
40.
To stress again for clarity’s sake, the mayor
of Pasay City must be reminded time and again that as a public official he is
treated by law as a public figure;
41.
This is founded on the
Constitution principle that says: “Public Office is Public Trust”;
42.
The mayor must again be
reminded that jurisprudence that forms part of the law of the land is settled
that once a public figure is the libel complainant, he must submit proof that
there was actual malice in the making of the published item;
43.
Now, actual malice is not the usual malice or
intention to commit the crime with bad motives, such as ill-will, specks,
spikes, motive to gain, motive to revenge or whatever;
44.
Actual malice is the fact that
a publisher knew already that the imputation to be published was not true yet
the publisher proceeded in publishing the same, or that the publisher was
prompted by the level of unbelievability of the imputation that he was prompted
to make cross-checking yet he proceeded with the publication without any
verification of the allegations making up the imputation and that the imputation indeed was false;
45.
Please be reminded that
“unbelievability” of the imputation is not enough, there must be an evidence of
falsity for one to be guilty of reckless disregard of the falsity of the
imputation;
46.
In this case, it is unfortunate
that Mayor Calixto never even pointed out this;
47.
Mayor Calixto must be reminded
or educated that this actual malice doctrine proceeded from the rights of the
citizens to criticize their public officials and these rights proceeded from
the Constitution premise that says: “PUBLIC OFFICE IS A PUBLIC TRUST”;
48.
For the Mayor to understand further Actual Malice,
he is being referred to read Guingguing vs CA case, G.R. No.
128959, September 30, 2005;
The Sotto Law
49.
Republic Act 53, or the Sotto
Law, protects the respondents from being compelled to reveal the sources of
those two text messages;
50.
And if that is so, the
respondents cannot be presumed to have actual malice and cannot be considered
to have actual malice just because they choose to be silent on the sources of
these text messages;
51.
The accuser is always required
to submit proof of actual malice and is obligated to present the sources if the
accuser insists that the source of information was telling lies;
52.
Take note that it is too
difficult to prove falsity by pounding on who are the sources and demonstrate
the falsity and motives of the sources;
53.
Take note also that if the
respondents choose to keep the sources, there is no way to prove a proposition
that the sources are unbelievable for lack of credibility;
Presumed Malice
in Article 354 of the RPC does not
apply
54.
Again, let it be stressed that
the complainant must know that PUBLIC
OFFICE IS A PUBLIC TRUST and that this interest of the State always weighs
greater than his personal interest as a public officer;
55.
He must be old enough to know
he is the highest official of Pasay City that he swore to serve faithfully and
dutifully and knowledgeable that any citizen or of the public has the right to
malign him when it matters to acts that are relevant to his office;
56.
As mayor, he knows that he has
the duty to prevent crimes from happened;
57.
So that as a public official his
personal interest pales too far in comparison with the interest of the public;
58.
HE MUST GIVE WAY AND SACRIFICE
HIMSELF, to the point of being criticized in the foulest and the most painful
language;
59.
He must also be ready to accept
that PUBLIC OFFICE HAS INHERENT CRITICISMS FROM THE TAXPAYERS LIKE THE
RESPONDENTS;
60.
The mayor’s perks and salaries
are paid by the people;
61.
So that the mayor has no right to complain for
libel whenever any item published criticizes him;
62.
Because it is now a doctrine that public
officials cannot use the malice based on hate, motive of gain, motive of
revenge or jealousy, he must learn that the malice found in Article 354 does
not apply;
63.
To repeat, jurisprudence forms part of the law
of the land and many cases, like Guingguing vs CA, is clear enough to
explain that actual malice is not proving the intention to defame or the motive
of hate or whatever;
Public Figures Doctrine
64.
The complainant, being a mayor,
is a public figure as defined under the Public Figures Doctrine;
65.
Under the Public Figures
Doctrine, the complainant for libel is required to submit proof of actual
malice before he is allowed to sue, or submit proof of actual malice to show
probable cause of actual malice;
66.
Public figures terminology was
defined by the Supreme Court in Guingguing vs. Court of Appeals,
G.R. No. 128959, September 15, 2005, citing prominent American legal
commentator Cass Sunstein, as follows:
[C]onsider the law of libel. Here we have an explicit
system of free speech tiers. To simplify a complex body of law: In the highest,
most-speech protective tier is libelous speech directed against a “public
figure”. Government can allow libel plaintiffs to recover damages as a result
of such speech if and only if the speaker had “actual malice”–that is, the
speaker must have known that the speech was false, or he must have been
recklessly indifferent to its truth or falsity. This standard means that the
speaker is protected against libel suits unless he knew that he was lying or he
was truly foolish to think that he was telling the truth. A person counts as a public figure (1) if he is a “public official”
in the sense that he works for the government, (2) if, while not employed
by government, he otherwise has pervasive fame or notoriety in the community,
or (3) if he has thrust himself into some particular controversy in order to
influence its resolution. Thus, for example, Jerry Falwell is a public
figure and, as a famous case holds, he is barred from recovering against a
magazine that portrays him as having had sex with his mother. Movie stars and
famous athletes also qualify as public figures. False speech directed against
public figures is thus protected from libel actions except in quite extreme circumstances.
67.
Guingguing continued that if a
complainant is a public figure, the complainant must show proof of actual
malice first;
68.
The pertinent part of Guingguing
is as follows:
As it has been
established that complainant was a public figure, it was incumbent upon the
prosecution to prove actual malice on the part of
Lim and petitioner when the latter published the article subject matter of the
complaint. Set otherwise, the
prosecution must have established beyond reasonable doubt that the defendants
knew the statements in the advertisement was false or nonetheless proceeded
with reckless disregard as to publish it whether or not it was true.
69.
To repeat, in the instant complaint, the
complainant did not even submit any proof of actual malice;
70.
ERGO, by this alone, all the
instant complaint must be dismissed;
The Circulation Manager
71.
For having no participation in
the preparation, editing, and actual decision to publish the same stories that
are being challenged here, the Circulation Manager, respondent Edwin R. Alcala,
cannot be faulted for having no participation therefor;
72.
As such, it is obvious that the
complainant filed this complaint as a SHOTGUN COMPLAINT just to prejudice and
persecute;
IN WITNESS
WHEREOF, we
sign this Joint Rejoinder-Affidavit on this ___ September 2013 in Manila City.
JERRY
S. YAP GLORIA
M. GALUNO
_____ ID No. _______ _____ ID No. _______
EDWIN R. ALCALA
_____ ID No. _______
SUBSCRIBED AND SWORN TO BEFORE ME this 13th of August in
the City of Pasay. Further, I certify that I have examined the affiants and I
am satisfied that they read and understood the Joint Counter-Affidavit and that
they executed the same on their own free will.
Administering Officer
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