Monday, September 23, 2013

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.


Republic of the Philippines
Department of Justice
National Prosecution Service
Office of the City Prosecutor


            - versus -                                           NPS Docket No. XV-07-INV-12J-06895

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:


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;


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;


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. _______

_____ 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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