QUESTIONING THE LIBEL INTELLIGENCE OF CITY PROSECUTOR OF MANILA, JUDGE

Questioning the libel intelligence of City Prosecutor of Manila, RTC judge

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:




Republic of the Philippines
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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