3 media men ask Mla Judge to inhibit from 2 libel cases

3 media men ask

Mla Judge to inhibit

from 2 libel cases

            Below is the motion filed for Jerry S. Yap, Gloria M. Galuno and Edwin R. Alcala, columnist, editor and circulation manager of Hataw tabloid, respectively, because they believe that the actions of this Manila RTC judge have already betrayed that she stripped herself of the “cold neutrality of a judge,” tilted the scale of justice, and pried open the blindfold of the goddess of justice.

         The newsmen did not conclude that the presiding judge was biased, clearly stating that it is only their belief that she has become biased.  

           And due to the suspicion alone, the three journalists insist that this is enough for the judge to withdraw self from hearing and deciding the cases for libel filed against them.

            The reason for asking the inhibition  of the judge, whose name is being withheld, is the manifestations of clear bias in favor of the offended party in two counts of libel.

           

According to Yap, Galuno and Alcala, it was very clear that the two informations for libel do not state the jurisdictional facts.

           

            So that if this is the case, it is a horn-book rule that the information for criminal libel must be quashed in accordance with the law established by Supreme Court ruling in the case of Wilfredo Agbayani vs Sofronio Sayo, G.R. No. L-47880, decided on April 30, 1979.

            Despite this, the Judge played like ignorant of the law. 

The accused said that the complainant in libel is close to Vice-Mayor Isko Moreno who is, according to newspaper accounts, close to Madam Arlene Lerma Angeles, the one reported to be the case fixer at the Manila City Hall.  (See Manila Times report written by Senior Reporter Jomar Canlas, entitled “A tale of two big-time fixers” that can be read at this link:  http://www.manilatimes.net/a-tale-of-two-big-time-court-fixers/43750/.)

            The desire of the three newsmen to seek the judge to inhibit is contained in the motion they filed, which is reproduced below.

Motion for Inhibition

with

Motion for Reconsideration

            The three (3) accused, JERRY S. YAP, GLORIA M. GALUNO, and EDWIN R. ALCALA, by the undersigned counsel, respectfully move to inhibit the Honorable Presiding Judge from these two (2) cases of libel.

            At the same time, the accused are filing this Motion for Reconsideration of the Resolution of the Honorable Court dated 26 August 2014.  It was received by the law firm on 27 August 2014.  The fifteenth (15th) day to file a motion for reconsideration is to fall on 11 September 2014.

            But the accused move that the motion for reconsideration be resolved by the new branch of the RTC to where these cases may be raffled to, if the Presiding Judge inhibits.

            The accused, with due respect to the Presiding Judge, have entertained a belief that this Court has been biased in favor of the private complainant, Police Senior Inspector XXX, Jr.

            To the mind of the accused, with due respect, the Court erroneously denied the motion to quash.

            The reason of the Court in denying the motion to quash is not founded on any law.  It says that “the evil sought to be prevented” that is the indiscriminate or arbitrary laying of the venue in libel cases in distant isolated or far-flung places is absent because the accused conduct their offices in Manila.

            It is tantamount to ignoring the law.

            While the Court cited Agbayani vs. Sayo, it erroneously applied the same. 

There is nothing in Article 360 of the Revised Penal Code or in Agbayani vs Sayo that says that if the evil sought to be avoided is not present then there is jurisdiction to that particular court.  It is wrong, with due respect.  

What Agbayani vs Sayo lectured is that the evil sought to be avoided in filing cases in remote places was the wisdom behind for the amendment of the rules of venue for criminal libel trial.  Agbayani vs Sayo merely used that “wisdom” in explaining for the legislation of the amendment to Article 360 of the RCP. It never mentioned that if the laying of venue does not inconvenience the accused the court can acquire jurisdiction.

            In addition, there is no jurisprudence in the Philippine jurisdiction that allows the laying of venue of a criminal libel in a court just because in fact the accused cannot be inconvenienced anyway.

            Rather the Agbayani vs Sayo doctrine clearly states that it is mandatory for ALL CRIMINAL INFORMATIONS FOR LIBEL to STATE THE FACTS REQUIRED TO LAY THE VENUE.

            Hence, Agbayani first requires the statement in the information whether the offended party was a private person or a public officer at the time of the commission of libel.

            After the character of the offended party is stated, whether as a private person or as a public officer, the Agbayani doctrine requires that the information for libel must state the residence of the offended party if the offended party was a private person at the time of the commission of libel, and if otherwise the information must state the place of office of the offended party if the offended party was a public officer at the time of the commission of the crime of libel.

            But if the prosecutor chooses to lay the venue on the bases of the place of printing and first publication, the information for libel must state the place of printing and where the publication was first published. 

            So that even if the facts of the case are compliant to Article 360 of the RCP, the case must be dismissed if the prosecution failed to comply with the order of Agbayani vs Sayo to state in the INFORMATION FOR LIBEL all those facts as his basis in laying the venue.

            In the instant case, THERE IS NO ISSUE THAT THESE JURISDICTIONAL FACTS, either based on residence or office of the offended party or on the city or province of “printing and first publication,” WERE NOT STATED IN THE TWO LIBEL INFORMATIONS HERE.

            If these jurisdictional facts are not stated, IT IS IMMATERIAL IF THE ACCUSED CONDUCT OFFICE IN MANILA.

            So that the Court clearly erred.

            To be clear, let the basic rule of the doctrine of Wilson Agbayani, et al vs Honorable Sofronio G. Sayo, GR No. L-47880, be restated, to wit:

In order to obviate controversies as to the venue of the criminal action for written defamation, THE COMPLAINT OR INFORMATION SHOULD CONTAIN ALLEGATIONS AS TO WHETHER, AT THE TIME THE OFFENSE WAS COMMITTED, THE OFFENDED PARTY WAS A PUBLIC OFFICER OR A PRIVATE INDIVIDUAL AND WHERE HE WAS ACTUALLY RESIDING AT THAT TIME.  Whenever possible, the place where the written defamation was printed and first published should likewise be alleged.  THAT ALLEGATION WOULD BE A SINE QUA NON IF THE CIRCUMSTANCE AS TO WHERE THE LIBEL WAS PRINTED AND FIRST PUBLISHED IS USED AS THE BASIS OF THE VENUE OF THE ACTION. (Highlights and Upper Case Ours)

            Moreover, it is a horn-book rule that jurisdiction cannot be presumed. It must be expressly vested by law.  It cannot be based on the “wisdom” on the “evil sought to be avoided.”  It must be stated clearly.

            So that it is very clear that it is not “the evil” being sought to be avoided that is the basis of jurisdiction.

So that because of this, the three accused are entertaining doubts that the Court, with due respect, is biased in favor of Senior Inspector XXX Jr.

Moreover, the accused are also citing what they call as another indication of bias.  The Court required them a period shorter than the fifteen days mandated in the Rules of Court to file their motion for reconsideration, reasoning that the trial must be speedy.   To the mind of the accused, the right to speedy trial belongs to the accused only and not to the accuser.  The accused may waive the same.

The accused are also entertaining the belief of bias by the Court in the repeated denials of all the motions they filed and they believe that the Court was already pre-determined to convict them.

The accused stand pat that the Court did not carefully evaluate their motions to dismiss based on lack of probable cause because the filing of the information was a violation of the Salonga vs Paño doctrine.   This doctrine is very clear: the court must not allow the prosecution to file a case in court when it is to be privileged to hope for a piece of evidence to pop out during the trial.   In this case, there is no evidence to prove actual malice and there is also no single evidence to prove identification of the offended party.

            To the mind of the accused, the circumstances show that the Presiding Judge always acted in favor of XXX Jr.  

What is in Mr. XXX? 

All the accused knew that Mr. XXX has been very close to Vice-Mayor Isko Moreno.  And it has been reported in the newspapers that the vice-mayor is a close friend of Madam Arlene Lerma Angeles who was said to be a case fixer in the City Hall of Manila.

The accused even suspected from the start that their cases were fixed.

In sum, the three (3) accused believe that the Presiding Judge had tilted the scales of justice against them, she opened the blindfold on the eyes of the goddess of justice, and she lost the cold neutrality of a judge.

With due respect, the accused ask for forgiveness from the Presiding Judge.  But they believe they are entitled to entertain suspicions of bias based on the series of events that happened with this case.

            Again the three accused reiterate their arguments that the two (2) Informations failed to state:  Where the private complainant being a public officer held office at the time of publication, or where the publication subject of the Information was printed and first published as held in the case of Agustin vs. Pamintuan (G.R. No. 164938, August 22, 2005);

            Venue is jurisdictional in criminal actions such that the place where the crime was committed determines not only the venue of the action but constitutes an essential element of jurisdiction. (Macasaet vs. People, G.R. No. 156747 February 23. 2005).

Agbayani vs. Sayo, G.R. No-L 47880, April 30, 1979 provides:  

              The rule on Venue in Article 360 may be restated thus:

1.                  Whether the offended party is a public official or a private person, the criminal actions may be filed in the Court of First Instance of the province or city where the libelous article is printed and first published.

2.                  If the private party is a private individual, the criminal action may also be filed in the Court of First Instance of the province where he actually resided at the time of the commission of the offense.

3.                  If the offended party is a public officer whose office is in Manila at the time of the commission of the offense, the action may be filed in the Court of First Instance of Manila.    

4.                  If the offended party is a public officer holding office outside of Manila, the action may be filed in the Court of First Instance of the province or city where he held office at the time of the commission of the offense.

            In the instant case, the law is clear that the two INFORMATIONS  do not contain the statement as to where the publications at issue were first published and printed in Manila at the time of the commission of the alleged libel.

It is equally clear that the two INFORMATIONS do not contain the statement that the offended party was a private person residing in Manila at the time of the publication of the alleged libel.

It is equally clear that the two INFORMATIONS do not contain the statement that the offended party was a public officer who held office in Manila at the time of the commission of the alleged libel.

It is very clear in Agustin case and Agbayani cases that the effect of the omission of such allegations in the Information is the QUASHAL of the Information and the dismissal of the case because it affects the very foundation that is the jurisdiction: the authority of the court to hear and decide. 

It is crystal clear that the Honorable Judge erred in taking into consideration the defect of the two (2) Informations which DO NOT GRANT THE COURT THE AUTHORITY TO HEAR AND DECIDE THESE TWO “LIBELS.”