QUESTIONING THE LIBEL INTELLIGENCE OF CITY PROSECUTOR OF MANILA, JUDGE
Questioning the libel intelligence of City Prosecutor of Manila, RTC judge
Disgusted by the level of intelligence of the Office of the City Prosecutor of Manila and the RTC, that they made a decision to say there is probable cause to charge Alab ng Mamamahayag (ALAM) chairman Jerry S. Yap, Hataw editor Gloria Galuno and circulation manager Edwin Alcala, this pungent Motion for Determination of Probable Cause has been filed before the RTC of Manila, Branch 16, to demonstrate how poor has been the job of the OCP and the trial court.
To understand this point, please read the lengthy Motion for Determination of Probable Cause below:
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| Mla police try to arrest for libel |
Disgusted by the level of intelligence of the Office of the City Prosecutor of Manila and the RTC, that they made a decision to say there is probable cause to charge Alab ng Mamamahayag (ALAM) chairman Jerry S. Yap, Hataw editor Gloria Galuno and circulation manager Edwin Alcala, this pungent Motion for Determination of Probable Cause has been filed before the RTC of Manila, Branch 16, to demonstrate how poor has been the job of the OCP and the trial court.
To understand this point, please read the lengthy Motion for Determination of Probable Cause below:
National Capital
Judicial Region
Regional Trial
Court
Manila
Branch 16
PEOPLE OF THE
PHILIPPINES,
Plaintiff,
-versus- Criminal Case No. 13-300157-57
(NPS
DOCKET No. XV-07-INV-12J-06895)
For:
Libel
JERRY YAP,
EDWIN ALCALA,
GLORIA GALUNO,
Accused,
x------------------------------------------------x
Motion for Judicial
Determination
of Probable Cause
WHEN THE PROSECUTORIAL
ARM APPEARS ABUSIVE, THE COURT MUST STRICTLY EXERCISE ITS DISCRETION TO
SCRUTINIZE THE FILINGS OF CRIMINAL INFORMATION BY THE OFFICE OF THE CITY
PROSECUTOR.S
The presiding judge must
cease to give respect to all the representations of the Office of the
Prosecutor, who arbitrarily file criminal information EVEN WHEN IT CANNOT
CLEARLY WIN THE CASE IN COURT and EVEN WHEN THERE IS NO SUFFICIENT PROBABLE
CAUSE.
The accused here strongly
invoke Section 2 of Article III of the Constitution that commands unto the
judges:
Thou
shalt personally determine probable cause for the purpose of a warrant of
arrest upon examination under oath of the complainant and the witnesses he may
produce.
The No. 1 reason why
courts are clogged with criminal cases is the Office of the Prosecutor.
Often times, the Office
of the Prosecutor arbitrarily resolves every criminal complaint in favor of the
filing of criminal information in court.
Even if the Office of the
Prosecutor knows that its case lack evidence to sustain the fight to prove its
case beyond reasonable doubt, even if the probable cause is so little, it files
the same in court “in the name of misguided meaning of probable cause.”
The No. 2 reason why
courts are clogged with criminal cases is the LENIENCY of the courts to
scrutinize the evidence submitted by the prosecution offices. They do these because they give RESPECT to
the decisions of the fiscals. But mind
you, this RESPECT IS UNDUE.
As in the case at bar,
the accused are challenging the Court and the Office of the City Prosecutor of
Manila to be honest and truthful.
With these expressions of
disgust, the accused are moving the Honorable Court to PERSONALLY EXAMINE THE POLICE
OFFICER WHO FILED THE COMPLAINT FOR LIBEL and the WITNESSES HE MAY PRODUCE to
decide whether there is sufficient probable cause that the accused are guilty
of two counts of libel and that they must be held for trial.
This is mandatory in the
name of the Constitution, in the name of fairness, in the name of honesty, and
in the name of PRESS FREEDOM.
There Is No Probable Cause
With due respect, the Honorable Office
of the City Prosecutor committed an error tantamount to gross ignorance of the
law.
And with due respect to the Honorable
Court, there is clearly no probable cause that is sufficient to say the Office
of the City Prosecutor has solid evidence to prove its cause.
The Discussions
There
is failure to understand that the ONLY
MALICE to be considered is ACTUAL
MALICE.
There
is a false belief that in libel
involving public officer as the complainant, ACTUAL MALICE is not the ill-will or hatred or revenge or envy or
jealousy.
With due respect, the Honorable Office
and this Court do not understand the law on prejudicial question.
MALICE
MISUNDERSTOOD
It is unfortunate that the Office and
the Court found probable cause that the respondent committed libel when its
only obvious bases are limited to the fact that the words used in expressing the
opinions of the accused happened to be “pungent opinions” of the offended party
who is a police officer.
The prosecutors and the courts must be
educated if only to win the trust of the public in the Judiciary and in the
entire justice system.
The
prosecutors must be educated that WHEN THE COMPLAINANT IS A PUBLIC OFFICER,
there is libel only when there was ACTUAL MALICE.
Presumed
malice has no place if the offended party is a public officer.
And
if it is not disputed that the offended party was a public official at the time
of the happening of the alleged libel, then it is indispensable that the test
of malice is ACTUAL MALICE, nothing else.
So
that it is wrong for the prosecutor to measure presence or absence of malice
upon how harsh or how brutal were the opinions.
Words
may be full of hate, envy or jealousy.
But never can hate, envy or jealousy be synonymous with actual malice if we talk of libel.
To
repeat, with the offended party being a public official it is only the
existence of ACTUAL MALICE that will spell libel.
And
what is actual malice?
Jurisprudence
has defined actual malice as that
state where the author of the story in question knowingly wrote and published
false facts or a state where the author recklessly disregarded the falsity of
the facts presented in the story if the facts appear to be naturally
unbelievable that there was still a need to cross-check the facts.
Remember, however, that these false
facts in actual malice must have been known to be false when the author wrote
and published them.
There are two ways by which these
false facts may be used to commit libel, conforming to the jurisprudence.
The first mode is by presenting the
false facts as part of a straight news story.
The second mode is by presenting the
false facts as the bases of opinions written and published.
So that the ultimate issues in
determining the existence or probability of libel are as follows:
1.
Are the facts
presented as the body of a news story or as the bases of opinions false? If
yes, go to the next question.
2.
Did the author
who published the said facts in a news story or as the bases of opinions have
prior knowledge of the falsity or was confronted by the nature of those facts
as ones that need cross-checking against sources or verification with agencies
or persons having hold of the truth? If
yes, then there is ACTUAL MALICE.
The
propositions above are founded solidly on the lessons from the Supreme Court
declarations in many libel cases, including particularly Guingguing vs Court of Appeals,
G.R. No. 128959, September 30, 2005, to wit:
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.
If Article 8 of the Civil Code of the
Philippines says that judicial decisions applying or interpreting the laws or
the Constitution form part of the law of the land, then the Office of the
Prosecutor MUST FOLLOW this pronouncement in Guingguing.
Having said this, it is now therefore
very clear that IT DOES NOT MATTER WHETHER THE AUTHOR HAD THAT ILL-WILL or
HATRED or ENVY or JEALOUSY against the person ascribed by the story.
If actual malice is the yardstick, one
can have full of hate against another but he can never be said to have malice
or have committed libel just because of that hatred. The real yardstick of actual malice is FALSITY
and no other.
In
other words, these opinions were based on the facts narrated by the respondent.
The ultimate inquiry in libel,
however, is not the opinion
but whether or not the facts used in the story, as a piece of straight news or
as an opinionated story, are false and the writer knew of the falsity of the
said facts.
Now, the complainant DID NOT submit
evidence of falsity of the facts upon which the respondent based her opinions.
If the complainant did not submit any
evidence that the facts used by the respondent in coming out with those harsh
opinions, then he can never ever say—and the prosecutor can never ever say—that
there is actual malice.
And if the prosecutor can never say,
then there is no probable cause for libel.
Now, the Office of the City Prosecutor
can risk itself by maintaining this case in this court and this court can risk
to stand by in its decision to say there is probable cause. But they will
definitely suffer defeat—and in the process shame to the public that watches.
The prosecutor will only suffer defeat
because at the level alone of the preliminary investigation it has no solid
evidence to support its stand that there is probable cause for malice?
The undersigned discusses about malice
because it is one of the four elements of libel. In criminal law, the failure to prove the
existence of at least one element of the crime acquits the accused by
insufficiency of evidence or by clear declaration of innocence.
This is therefore a challenge to the
Office of the City Prosecutor to rethink its position and for this Court to
reflect whether it will heed this call of conscience:
(a)
To go ahead with the information for libel it filed in court despite the lack
of evidence of falsity of the facts used by the respondent in coming out with
those harsh opinions and suffer shame for failure to prove that the factual
allegations were false and that the respondent knew of the falsity yet she
proceeded in using them as bases for those hate opinions; or
(b)
To withdraw the information for libel it already filed in court.
The Office of the City Prosecutor is
therefore forewarned that it can never win this case if it decides to keep the two
sheets of information for libel in this
Court.
The
lack of evidence of knowledge of falsities at the time of publications of a
number of opinion articles in question will acquit the respondent. There is no way for the prosecutor to prove
the state of the minds of the accused at the time of publication of the stories
in question.
With this situation, it is better for
the prosecutor to desist from filing any libel information on any of the
opinion columns of the accused.
Lest, the prosecutor and this Court be
reminded that the complainant was a public figure at the time of publications
of the opinion columns in question because he was undisputedly a police
officer.
The undersigned will throw the book on
the prosecutor and on the Court during the trial and will not stop going to the
Supreme Court if needed.
As
such, IT IS THE ACTUAL MALICE TEST THAT SHALL APPLY under the instruction of Guingguing
vs Court of Appeals.
The prosecutor’s office anbd the court
have no choice: FOLLOW GUINGGUING!
The
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.
And
if indeed the Prosecutor’s Office and this Court are now educated, that it is
being hoped they will learn from this discourse, it must apply the ACTUAL
MALICE TEST.
To repeat, envy or ill-motive does not
constitute malice in libel cases where the complainant is a public figure at
the time of the publications of the questioned opinion articles.
And to repeat also, if the
Prosecutor’s Office and the Court will not use the actual malice test in
determining probable cause, it will never win this case if it decides to defend
the two information sheets for libel it already filed against the respondent.
The prosecution and the Court will
only be wasting their time and will unduly prejudice the accused by subjecting
them to the prejudicial trial and arrest that was attempted to be done with
lightning speed if this early it can be said to end up in acquittal.
If the prosecution will continue
prosecuting the instant case despite the clarity of the situation when the
prosecution has no evidence of actual malice, this act will constitute misuse
or malversation of public funds that are the equivalent of the time consumed in
using the machinery of the court and the prosecutor’s office for this clearly
groundless case.
Now,
let’s go to the SOLID EVIDENCE RULE.
Recently, so as not to waste the time
and avoid acquittal, Supreme Court Chief Justice Lourdes Sereno advised the
Ombudsman to build a solid case against Janet Lim-Napoles and other plunder
suspects or it will only be useless for it to file with insufficient probable
cause.
The
Office of the City Prosecutor MUST KNOW that the kind of probable cause that is
required is SUFFICIENT, not just the
small probability that it should file because of self-aggrandizement, whims,
caprice and wantonness.
Of course, it is very sure that the
prosecutor who files a criminal information despite small probability is
tainted by bias. It will be a ground to
imprison him for causing undue prejudice to the respondent.
Section 1 of Rule 112 prescribes the
correct standard of probable cause.
The
degree of probable cause required by this provision is “sufficient” probable
cause.
Yes,
the word “sufficient” is the key.
Section 1, Rule 112 says:
SECTION 1. Preliminary investigation defined; when
required.—Preliminary investigation is an inquiry or proceeding to determine
whether there is sufficient
ground to engender a well-founded belief that a crime has been committed and
the respondent is probably guilty thereof, and should be held for trial.
On
this score, this is the teaching in many Supreme Court cases;
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
caseor 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).
Reality
check: the complainant cannot secure the conviction of the respondent if he
will not submit evidence that those facts used by the respondent in forming her
opinions are false.
NOW,
LET US TALK ABOUT RECKLESS DISREGARD MALICE.
In
this issue, the prosecutor must also assure his or her self that there is sufficient
evidence presented during the preliminary investigation that the recited facts
in the opinion columns of the respondent were false.
And
if the complainant cannot produce at this stage his evidence that the recited
facts are false, how can the prosecutor have moral authority to lodge an
information sheet for libel in court?
If there is no evidence of falsity of the
recited facts, there can be no reckless disregard of the falsity of the
imputations.
That
is so because even if the imputation appeared to be false and the publisher did
not cross-check the facts, the publisher cannot be convicted if there is no
evidence that indeed the imputation was false at the time of the publication.
So
it is clear.
Inversely,
even if there are pieces of evidence of falsity of the recited facts, the
complainant has to produce evidence that the false imputations indeed appeared
to be likely false by the nature of imputation as against the nature of the
person against whom the imputation was ascribed and yet the publisher proceeded
in the publication of the imputations.
Again,
the test of sufficiency of the grounds is the test to say whether there is sufficient probable cause that
the accused committed the crime and he is likely guilty so that he must be
brought to trial.
So
that if there is no sufficient evidence of falsity of the facts used to find probable
cause for actual malice because the complainant has not submitted any evidence
of falsity of the recited facts in the opinion columns of the respondent, then
there must be NO sufficient ground to excite a belief in an impartial mind that
there is a good chance to secure conviction.
To
stress again for clarity’s sake, a police officer must be reminded time and
again that as a public official he is treated by law as a public figure.
This
is founded on the Constitution principle that says: “Public Office is Public Trust.”
A
police officer 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;
He
must be reminded that just because foul words were used to describe him, it is
not actual malice. There must be a proof
that the bases used in coming out with foul words must be proven false before
it can be said that foul words proceeded from falsity.
Just
to stress: It 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 to constitutes malice in libel.
To
stress again, 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;
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.
In
this case, it is unfortunate that the police officer never even pointed out
what are false in the writings of the respondent and never submitted evidence
to prove the falsity.
Police
Officer Ibay 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.”
For
the police officer to understand further Actual Malice, it is recommended to
him to read Guingguing vs CA case, G.R. No. 128959, September 30, 2005.
Presumed
Malice
in
Article 354 of the RPC does not apply
It
may be repetitive now but this needs to be retold.
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.
He must be old enough to know he was a high
police official that he swore to serve faithfully and dutifully and he must be
knowledgeable that any citizen or the public has the right to malign him when
it matters to acts that are relevant to his office.
As
a police officer, he must know that he had the duty to prevent crimes from
happening.
So
that as a public official his personal interest pales too far in comparison
with the interest of the public.
HE
MUST GIVE WAY AND SACRIFICE HIMSELF, to the point of being criticized in the
foulest and the most painful language.
He
must also be ready to accept that PUBLIC OFFICE HAS INHERENT CRITICISMS FROM
THE TAXPAYERS LIKE THE RESPONDENTS.
The
police officers perks and salaries are paid by the people. So that the police officer has no right to
complain for libel whenever any item published criticizes him.
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.
To
repeat, jurisprudence forms part of the law of the land and many cases, like Guingguing
vs CA, are clear enough to explain that actual malice is not proving
the intention to defame or the motive of hate or whatever.
On
Prejudicial Question
It is unthinkable why the Office of
the City Prosecutor did not take into consideration the argument of the
respondent that there exists a prejudicial question simply because the
respondent filed a civil complaint for damages against the complainant.
And this Court may have violated the
Prejudicial Question law when it would not suspend this case.
The justification put up by the
prosecution in setting aside the plea for prejudicial question smacks of
ignorance of the law, Article 36 of the Civil Code and the Rules of Court.
The complaint for damages was grounded
on the violation of the police officer of Article 32 of the Civil Code of the
Philippines.
Specifically, the act complained of by
the respondent was that the police official committed the act of filing the
instant complaint for libel and that act of filing violated the right of the
respondent to freedom of speech or the right to the freedom to write for the
press or maintain a periodical.
Article
32 of the Civil Code says:
Art. 32. Any public officer or employee, or any
private individual, who directly or indirectly obstructs, defeats, violates or
in any manner impedes or impairs any of the following rights and liberties of
another person shall be liable to the latter for damages:
(1) Freedom
of religion;
(2) Freedom of speech;
(3) Freedom to write for the
press or to maintain a periodical publication;
xxx xxx xxx
In any
of the cases referred to in this article, whether or not the defendant's act or
omission constitutes a criminal offense, the aggrieved party has a right to
commence an entirely separate and distinct civil action for damages, and for
other relief. Such civil action shall proceed independently of any criminal
prosecution (if the latter be instituted), and mat be proved by a preponderance
of evidence.
The
indemnity shall include moral damages. Exemplary damages may also be
adjudicated.
The
responsibility herein set forth is not demandable from a judge unless his act
or omission constitutes a violation of the Penal Code or other penal statute.
Under Article 36 of the Civil Code,
whenever there is prejudicial question, the criminal case must defer and the
civil case must first be decided by the Court.
Article 36 says:
Art. 36. Pre-judicial
questions which must be decided before any criminal prosecution may be
instituted or may proceed, shall be governed by rules of court which the
Supreme Court shall promulgate and which shall not be in conflict with the
provisions of this Code.
Hence, prudence dictates that the
Office of the City Prosecutor and this Court must have ordered the suspension
of the proceedings of the instant preliminary investigation in deference to the
pending civil case—if they prefer despite the BIG ISSUE on the determination of
probable cause.
A copy of the Complaint for civil
damages referred to is attached hereto as ANNEX
“A.”
The
Prayer
WHEREFORE,
it is respectfully prayed to dismiss the instant information sheets for libel.
Other
reliefs just and equitable are also prayed for.
18 October 2013.
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:
ROSALINO IBAY
1339 Sevilla Ext., Tondo, Manila
OFFICE OF THE CITY PROSECUTOR
City Hall, Manila
EXPLANATION
Lack of personnel and distance compelled the
service of copy of the motion by registered mail.
BERTENI CATALUÑA CAUSING
NOTICE OF HEARING
CLERK OF COURT
RTC of Manila, Branch 16
OFFICE OF THE
CITY PROSECUTOR
City Hall, Manila
ROSALINO
IBAY
1339
Sevilla Ext., Tondo, Manila
Greetings!
Please
be notified the undersigned submits the instant motion for the consideration of
the Honorable Court on 25 October 2013 at 2:00 p.m.
BERTENI CATALUÑA CAUSING
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