Friday, October 17, 2014

Impossible motion for liberty

Impossible motion for liberty


With the purpose of educating those who are minded to read long writings, including lawyers, I am posting here the Motion to Lift to En Banc Motion for Leave of Court to Admit Second Motion for Reconsideration.

That is aside from the fact that this is a public interest case: libel filed by a high government official against a mediaman.

This is a motion about a mediaman client convicted by the RTC of Manila, Branch 26, of libel filed by former Pagcor Chairman Ephraim Genuino.

In the Decision, Judge Pampilo sentenced the mediaman to an imprisonment period beyond what is allowed by the Revised Penal Code and ordered the mediaman to pay P5 million in moral damages and P5 million in exemplary or punitive damages.

The lawyer of the mediaman filed a notice of appeal.  But the counsel failed to file an Appellant's Brief, causing the Court of Appeals to dismiss the appeal and order the finality of the judgment.

Together with Atty. William "Bong" delos Santos, we filed a petition for relief from the judgment on the ground that the act of the former counsel in not filing the appellant's brief was gross negligence. We cited many cases where the Supreme Court reinstated appeals due to gross negligence of the counsel, including the case of Ace York Aguilar (a.k.a. Ace Vergel).

The CA denied the motion for relief and ruled that it cannot act on the petition for relief on the reasoning that the CA has no more power to act on petitions for relief under Rule 38 of the Rules of Court.  

We filed a motion for reconsideration and insisted that this petition for relief is not under Rule 38 but under the jurisprudence that gives relief to victims of gross negligence of the counsel.

The CA stood firm.

So that we filed a petition for certiorari alleging grave abuse of discretion on the part of the CA.

The First Division of the Supreme Court dismissed our petition upon its ruling that there was no grave abuse of discretion.  The concerned Resolution of the Supreme Court's First Division did not explain why there was no grave abuse of discretion.

Then we filed our first motion for reconsideration and it was again denied outright.

Clutching on straws, we decided to file a Second Motion for Reconsideration but this time asking it to be decided by the entire membership of the Supreme Court and not merely the First Division.

I do believe that I have just written another masterpiece in pleading for the freedom of this mediaman.

If you are minded to read, rest assured this is educating and the same motion is posted below:


Republic of the Philippines
Supreme Court
Manila




LEO VILLAN,
                                                            Petitioner,

            - versus -                                                       G.R. No. 208211


PEOPLE OF THE PHILIPPINES and COURT
OF APPEALS,
                                                            Respondents,
x-------------------------------------------------------x



Motion to Lift to En Banc
the Motion for Leave of Court,
Motion for Leave for Admission of
Second Motion for Reconsideration




            Accused-Appellant-Petitioner LEO VILLAN, by the undersigned collaborating counsel, respectfully moves the Honorable Court to Admit the Second Motion for Reconsideration and Motion to Lift the Motion for Leave to the Court En Banc.



The Grounds for Lifting Motion for Leave En Banc



            Because only a two-thirds or more vote of the actual membership of the Court En Banc can approve a second motion for reconsideration, there is a need to lift the instant Motion for Leave to Admit Second Motion for Reconsideration to the Court En Banc.



The Grounds for Admission of
Second Motion for Reconsideration



            For a second or subsequent motion for reconsideration to be granted, Section 3 of Rule 15 of the Internal Rules of the Supreme Court requires that there must be a higher interest of substantial justice that must be constituted by the following:


(a)  The assailed decision is legally erroneous;
(b) It is patently unjust; and
(c)  Potentially capable of causing unwarranted and irremediable injury or damage to the parties.


In the instant second motion for reconsideration, all these requisites are present.


            It is therefore submitted that the instant second motion for reconsideration must be allowed.



The Discussions



On the Motion to Lift En Banc



            As stated above, there is no other way for a motion for second reconsideration to get an opportunity to be heard.


That only way is for the Motion for Leave of Court to admit Second Motion for Reconsideration to be lifted first to the En Banc of the Supreme Court because it is only the Court En Banc that has the power to approve the same.


In Section 3 of Rule 15 of the Internal Rules of the Supreme Court, a second motion for reconsideration can be reconsidered only by a vote of at least two-thirds of the actual membership of the Court En Banc.


If it is so, then it behooves the Honorable Court to refer the Motion for Leave to Admit Second Motion for Reconsideration to the En Banc.



On Motion for Leave to Admit
Second Motion for Reconsideration



There is higher interest of substantial justice to grant leave to a second motion for reconsideration if the following are constituted, to wit:


(a)  The assailed decision is legally erroneous;
(b) It is patently unjust; and
(c)  Potentially capable of causing unwarranted and irremediable injury or damage to the parties.


Let each of these requisites be discussed in relation to the instant case.



(a)  The assailed decision legally erroneous



There are several issues spewing fire from the RTC a quo Decision either ignored or ruled as erroneous by either the Court of Appeals or the Regional Trial Court of origin.


Now, these errors are deemed upheld by the Supreme Court and will remain as a stain in the records of the jurisprudence on these issues because of the resolution of the First Division of the Supreme Court denying the petition for certiorari and the resolution denying the first motion for reconsideration.


It follows that the Resolutions of the First Division of the Supreme Court are also legally erroneous.


Nevertheless, the only way to authorize the Supreme Court to determine whether to reverse these resolutions is for its En Banc to grant first the Motion for Leave to admit second motion for reconsideration.  It was like what the High Court did in the case McBurnie vs Ganzon, et al, G.R. Nos. 178034 & 178117 G R. Nos. 186984-85, October 17, 2013.



Lack of jurisdiction makes
decision legally erroneous



The first legally erroneous ruling involved in this case is the NULL and VOID decision of the RTC of Manila, Branch 26.  This is due to the LACK OF JURISDICTION BY THE COURT A QUO.


This grave error is poised to cause prejudices to the accused-petitioner and to the entire body of judicial system.  That is, if it is let to exist despite the clear nullity that should not give that decision any right of existence.


The LACK OF JURISDICTION by the RTC of Manila is due to the TRUTH THAT THE INFORMATION FOR LIBEL DID NOT ALLEGE THE FACTS REQUIRED TO VEST JURISDICTION UNTO THE SAME RTC.


The present information for libel FAILED TO STATE THE FOLLOWING:


1.     THE CITY OR PROVINCE WHERE THE ARTICLE IN ISSUE WAS FIRST PUBLISHED AND PRINTED; and

2.     THE CITY OR PROVINCE WHERE THE OFFENDED PARTY HELD OFFICE AT THE TIME OF THE PUBLICATION WHEN IT STATED THAT THE OFFENDED PARTY (EPHRAIM GENUINO) WAS A PUBLIC OFFICER.


No less than the law, Article 360 of the Revised Penal Code, that commands that libel cases can be tried only in:

(a)  The court of the city or province where the libel was first published and printed; or

(b) The court of the city or province where the offended party resided at the time of the publication of libel if the offended party was a private person; or

(c)  The court of the city or province where the offended party held office at the time of the publication of libel if the offended party was a public office.


This law of Article 360 has been enforced by the Supreme Court through a series of cases it decided, beginning from Wilson Agbayani, et al vs Honorable Sofronio G. Sayo, GR No. L-47880.


Agbayani vs Sayo interpreted the law by requiring that all the facts vesting jurisdiction must be stated in the information or complaint for libel.  In case of failure to comply with this requirement, Agbayani vs Sayo commands that the information MUST BE QUASHED.

           
The pertinent decree stated by the Supreme Court in Agbayani vs Sayo is as follows:


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.



To be clear, let the first sentence in this pertinent part of the ruling be dissected phrase by phrase, 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 (of publication)

Let the second sentence in this part of the ruling be dissected phrase by phrase, to wit:


-         Whenever possible

-         (The complaint or information must state) the place where the written defamation was printed and first published.

-         This 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.


This is further reinforced by Agustin vs Pamintuan, G.R. No. 164938.  August 22, 2005.  In this case the Supreme Court quashed the information for libel because it did not state the residence of an offended party who was a private person at the time of the commission of the crime of libel.


This doctrine in Agbayani vs Sayo was also reiterated in Francisco I. Chavez and People of the Philippines vs. Court of Appeals, et al, GR No. 125813, February 6, 2007, where the Supreme Court stated that the phrase “general circulation in Manila” is not equivalent to “first published and printed in Manila.”  Because of this, the Court affirmed the quashal of the information for libel filed by Chavez.


What is more important in Chavez vs CA to bear down into the present issue is that it stated that:


If this disquisition impresses an unduly formalistic reading of the Information at hand, it should be reiterated that the flaws in the Information strike at the very heart of the jurisdiction of the Manila RTC.  It is settled that jurisdiction of a court over a criminal case is determined by the allegations of the complaint or information, and the offense must have been committed or any one of its essential ingredients took place within the territorial jurisdiction of the court.  Article 360 states, in as unequivocal a manner as possible, that the criminal and civil action for libel shall be filed with the court of the province or city “where the libelous article is printed and first published, or where any of the offended parties actually resides at the time of the commission of the offense.” If the Information for libel does not establish with particularity any of these two venue requirements, the trial court would have no jurisdiction to hear the criminal case.


 This principle on jurisdiction of libel cases enunciated in Agbayani vs Sayo is also reiterated in Soriano vs IAC, GR No. L-72383, November 9, 1988.


It is also invoked by the Supreme Court in Macasaet, et al vs People, G. R. No. 156747, February 23, 2005, where it ruled:


In the case at bar, private respondent was a private citizen at the time of the publication of the alleged libelous article, hence, he could only file his libel suit in the City of Manila where Abante was first published or in the province or city where he actually resided at the time the purported libelous article was printed.

A perusal, however, of the information involved in this case easily reveals that the allegations contained therein are utterly insufficient to vest jurisdiction on the RTC of Quezon City.  Other than perfunctorily stating “Quezon City” at the beginning of the information, the assistant city prosecutor who prepared the information did not bother to indicate whether the jurisdiction of RTC Quezon City was invoked either because Abante was printed in that place or private respondent was a resident of said city at the time the claimed libelous article came out.    As these matters deal with the fundamental issue of the court’s jurisdiction, Article 360 of the Revised Penal Code, as amended, mandates that either one of these statements must be alleged in the information itself and the absence of both from the very face of the information renders the latter fatally defective.  Sadly for private respondent, the information filed before the trial court falls way short of this requirement.  The assistant city prosecutor’s failure to properly lay the basis for invoking the jurisdiction of the RTC, Quezon City, effectively denied said court of the power to take cognizance of this case.

For the guidance, therefore, of both the bench and the bar, this Court finds it appropriate to reiterate our earlier pronouncement in the case of Agbayani, to wit:
(Highlights, underline and italics supplied)


An examination of the present information shows that it did not state that the issue of PEOPLE’S BRIGADA was first published and printed in Manila City; and it did not also state the City where the offended party, Ephraim Genuino, held office at the time of the publication of the OPEN LETTER.


Let us now examine the present information in the instant case, which states:


              Accused LEO D. VILLAN stands charged before this Court for Libel, which accordingly to the Information filed by Assistant City Prosecutor Marcial C. Distor, was committed as follows:

“That on or about September 12, 2002, in the City of Manila, Philippines, the said accused, being then the President and Chairman of the Board of Trustees, Managing Editor, and Editor-in-Chief, respectively of PEOPLE’S BRIGADA, conspiring and confederating together and helping one another, with malicious purpose of impeaching the virtue, honor, character and reputation of MR. EFRAIM C. GENUINO, THE Chairman of the Board of Trustees and Chief Executive Officer of the Philippine Amusement & Gaming Corporation (PAGCOR), and therefore a prominent person, did then and there wilfully, unlawfully, feloniously and maliciously publish, or cause to be published in the September 12, 2002,issue of PEOPLE’S BRIGADA, a newspaper of general circulation, an OPEN LETTER under the front page banner PAGCOR Chairman and CEO EFRAIM GENUINO, RESIGN NOW!” and continued its entirely in page 12 of the same People’s Brigada, to wit:

“ISANG open letter ang natanggap ng People’s Brigada na naglalayong isiwalat ang kanilang pinaniniwalang katiwalian na nagaganap sa nag-iisang gambling corporation sa bansa na sa katauhan ng Philippine Amusement Gaming Corporation (PAGCOR). Ang Sulat na tinanggap mula sa koreo ay nanggaling sa concerned Officers and Rank and file oldtimers and employees of PAGCOR. Sa koreo sinasabing nanggaling ito kay Mr. Randolph Subiri ng PAGCOR Holiday Inn Casino Filipino U.N. Avenue Manila. Sinikap ng People’s Brigada na alamin at beripikahin ang nilalaman ng sulat sa mga sumusunod na tauhan ng Casino tulad ni Valerio Santos, Asst. Branch Manager Casino Filipino at Mabuhay “Boy” Rosero, Managing Head Surveillance Department ng lahat ng pagtatankang hingin ang kanilang panig nabigo ang Brigada na makuha ito. Ngunit sa interes ng malayang pamamahayag minabuting ilathala ito ng People’s Brigada upang ipahatid ito sa kinauukulan at mabigyan ng pansin ang katotohanan nito. Ito ang original na sulat na aming natanggap.

“PAGCOR Chairman and CEO EFRAIM GENUINO RESIGN NOW!
             
“We the Concerned Officers and Rank and File old-timers and employees of the Philippine Amusement and Gaming Corporation (PAGCOR), call for your immediate resignation for GROSS INCOMPETENCE SOWING DEMORALIZATION, ACTS OF GRAFT AND CORRUPTION, AND LOSS OF TRUST AND CONFIDENCE.

“WE ACCUSE YOU OF GROSS INCOMPETENCE AND IGNORANCE IN THE KNOWLEDGE OF CASINO GAMBLING OPERATIONS AND MANAGEMENT. We all know that the Chairmanship of PAGCOR is political appointment and we do not care one bit if your appointment was due to the fact that you are a very close friend of Mike Arroyo and a part of the political campaign team of Pres. Macapagal-Arroyo. What we care most about is the way you configure outrageous and detrimental gaming operations and management policies totally  irreconcilable to the company’s existing guidelines that were structured through accepted international casino gaming norms and tenets.

“ACCUSED YOU OF ENDANGERING THE VERY PROFESSIONAL AND ORGANIZATIONAL STRUCTURE OF PAGCOR AND SOWING DEMORALIZATION WITHIN THE COMPANY BY PRACTISING NEPOTISM, DEEP SELECTION AND OBVIOUS CALLOUS POLITICAL AND PERSONAL CONVENIENCE by your appointment of relatives (even a boyfriend of your daughter) and friends from Makati Rotary Club Central, Bigkis Pinoy and TRACER Computer College (which you own) as department heads (Managing Heads and Assistant Managing Heads) and in various officer level position in the company.

“Like you, we also accuse all your appointees of gross incompetence and total ignorance in casino gaming operations and management. Like you, we question the competency of Rafael Francisco to be the company’s President and COO. This may be the reason why Mr. Francisco, for the first time in the history of PAGCOR, had his appointment railroaded and merely made through your rubber stamp Board of Director’s approval instead of through Malacañang. We question the competency of Rene Figueroa to head the company’s newly formed Research and Development Department. Does Mr. Figueroa have the proper training, background, experience and knowledge of even the most basic casino gaming and slot machine operations to head such a highly technical department? We question your appointment of the dental technician Mabuhay Rosero, first, as Officer-in-Charge of Jai-alai then, as the incumbent managing head of the Surveillance Department and Corporate Security Unit. Does Mr. Rosero have previous experience or background in military, police or private security investigation? What is it in the curriculum of dental technicians that made it possible for such to manage the overall protection of casinos? Your numerous approvals in the formations of numerous and new department in PAGCOR are only meant to facilitate the placement of your relatives, prospective son-in-law, political cronies’ in Bigkis Pinoy and TRACER Computer College and you and Mike Arroyo’s barkada in Rotary Club Central as Managing Heads and Assistant Managing Heads in these newly created department. In effect you created redundancy and overlapping functions within other existing/original departments in PAGCOR and added more weight to an already bloated bureaucracy in PAGCOR.

“WE ACCUSE YOU OF GRAFT AND CORRUPTION. We all know that the only reason why you blindly approved the partnership of PAGCOR with private operators/investors in the setting-up of Slot Machine Arcades is due to your greed to get and siphon so much money before 2002. With the profit sharing of 60% for PAGCOR and 40% share of the private operator is only 30% since the 10% part is your own personal cut! You know that PAGCOR has all the technical and financial means to establish its own slot machine arcades without private investor as its partner. But you are not interested in this lone venture since you can not dip your own hands in PAGCOR money for it would be too obvious for the internal auditors of the company of COA. So your alleged bright mind with the support of your barkada and some members of your board then the proposed to get private investors/operators so you can arrange your own percentage sharing from them cleanly. We all know the connection of your councilor-brother, Romy, from Navotas with all of these private investors/partners and we accuse him of being your bagman. We all know that all these private investors/partners are your personal friends one way or another. We also accuse the Managing Head of Property and Procurement Department, Carmencita Espinosa, of also being your bagman. We are appalled by the way Espinosa asks a “standard operating procedure” of 40%-50% of the total contract price from winning bidders and suppliers/dealers. All the winning bidders and suppliers/dealers shocked by the way Mrs. Espinosa ask this SOP from them most specially the slot machine, computer and CCFV winning bidders and suppliers/dealers. We accused you of resurrecting and reinstating Espinosa, a former forced-to-resign PAGCOR official, as well as appointing your prospective son-in-law Gerwin See to both take the lead in the Property and Procurement Department of PAGCOR to protect your commission sharing, price padding and “kotong” SOP interests.
             
“WE ACCUSED YOU FALSE MANAGEMENT AND COSTLY IMAGE-BUILDING. After more than a year of being exposed to your management style, we know for a fact that you are totally ignorant and do not know a thing in the intricate and complex management of casino operations, financing and marketing. You have, time and again, misled the Filipino people into thinking that you have personally increased PAGCOR’s income through your own effort, thanks to your lapdog and Goebbel-like overpaid PR men Gryk Ortaliza and Edward King. We know for a fact that if PAGCOR had a Chairman and CEO that is an expert in the casino business, unlike you, PAGCOR’s income would have a yearly increase multiplied by range of 1.75-2.25 to your achievement income. Your continued stay in PAGCOR, as well as your whole “barkada”, is considered therefore a yearly loss of income for the company. You are very lucky and owe your continued existence in PAGCOR due to the veteran and competent pre-Genuino promoted Senior Branch Managers and Branch Managers who are on their own marketing and stategizing for the company. Do we consider you, Francisco, Figueroa, Ortaliza, King, Espinosa, Rosero and the rest of your newcomers as casino operations, financing and marketing strategists as geniuses? No! You are all big jokes to us veterans!

“FOR THE SAKE OF THE COUNTRY. THE FILIPINO PEOPLE AND PAGCOR AS A GOVERNMENT-CONTROLLED CORPORATION AND WHAT IS LEFT OF IT AFTER YOUR PLUNDER-CONTROLLED  CORPORATION AND WHAT IS LEFT OF IT AFTER YOUR PLUNDER- RESIGN NOW! DO A GUINGONA, BANEZ AND ROCO NOW!
             
“RESIGN!RESIGN!RESIGN!”

Which published open letter/article wanted to convey, as in fact it did convey, false, derogatory and malicious insinuations and/or statements to the effect that  said Mr. Efraim C. Genuino is an incompetent, ignorant and corrupt officer of PAGCOR engaged in illegal activities and exercising favoritism in PAGCOR, the accused well knew, such were false and malicious, offensive and derogatory to the good name, character and reputation of Mr. Efraim C. Genuino and that said open letter/article containing such highly derogatory words, phrases, expressions and statements were prepared and published for no other purpose than to impeach and besmirch the good name, character and reputation of Mr. Efraim C. Genuino in order to expose him, as in fact he was exposed to dishonour, discredit, public hatred, contempt and ridicule.

              “CONTRARY TO LAW.”


Until this point, it is clear that the information for libel filed against accused-petitioner Villan did not confer jurisdiction unto the RTC of Manila, Branch 26.


It is also clear at this point that the Decision of the RTC of Manila is NULL and VOID, not simply a legally erroneous decision.


As such, it is also clear that the Court of Appeals IGNORED THIS CLEAR CRY OF INJUSTICE.


By issuing resolutions denying the petition for certiorari where this NULL and VOID decision was also pointed out, the Supreme Court unwittingly became an instrument of upholding the NULL and VOID decision.


At all cost, THIS IS A PROOF THAT THE DECISION OF THE RTC OF MANILA IS LEGALLY ERRONEOUS.


And when the Court of Appeals dismissed the petition for relief contending that it was a wrong remedy and denied the motion for reconsideration, its resolutions became DECISIONS THAT ARE LEGALLY ERRONEOUS BECAUSE IT ALLOWED THIS NULL AND VOID DECISION TO BE AFFIRMED WITH FINALITY.


If the Supreme Court will not allow the second motion for reconsideration, it will in effect allowing a NULL and VOID decision to take root and stay forever as a Sword of Damocles on its integrity.


If the Supreme Court En Banc will allow these legally erroneous decisions to stay in the books, it is in effect drastically overturning the doctrines announced in Agbayani vs. Sayo, Soriano vs IAC, Chavez vs CA, Agustin vs Pamintuan, Macasaet vs  People, etc,


Now, let us know the effect of the principle of immutability of decisions that has attained finality.


There is no doubt that the present decision of the RTC of Manila has become final and executory for failure of the counsel of the accused-petitioner to file the required appellant’s brief and for failure of the same to file a motion for reconsideration from the dismissal due to non-filing of the appellant’s brief.


Nevertheless, will this fact that the questioned RTC Decision has become final and immutable make the same decision valid despite the fact that it is established that the RTC that rendered the Decision did not have jurisdiction over the subject matter of the case?


The decision, even though declared final and executory, is not immutable if it was rendered by a court having no jurisdiction over the subject matter therein.


The principle of immutability of decisions covers only errors of judgment and does not cover errors of jurisdiction.


Nevertheless, lack of jurisdiction can be interposed even during appeal or even after the finality of judgment.  This is announced by the Supreme Court in Magno vs People, GR No. 171542, April 6, 2011, where the Court stated:

Lack of jurisdiction over the subject matter of the suit is yet another matter.    Whenever it appears that the court has no jurisdiction over the subject matter, the action shall be dismissed.    This defense may be interposed at any time, during appeal or even after final judgment. Such is understandable, as this kind of jurisdiction is conferred by law and not within the courts, let alone the parties, to themselves determine or conveniently set aside.


With this, more than ever, it is the obligation of the Supreme Court En Banc to correct the grave error of jurisdiction.


En Banc’s duty comes in because the SC First Division erred in issuing Resolutions ignoring this fact of the Decision of the RTC being Null and Void for lack of jurisdiction.


And the En Banc can correct this grave error of jurisdiction under its powers.


With the Decision of the RTC a quo established as NULL and VOID, it is submitted that this is one legal erroneous decision contemplated by Section 3 of Rule 15 of the Internal Rules of the Supreme Court.



No proof submitted to prove
facts conferring jurisdiction


There is another legally erroneous point in the Decision of the RTC of Manila.


A reading of the entire decision of the RTC a quo shows that the prosecution never submitted evidence that PEOPLE’S BRIGADA NEWS was printed in Manila and first published in Manila.


To the contrary, the defense testified that the editorial office of People’s Brigada News at Doña Avida Bldg. 2247 FB Harrison St., Pasay City. It is there that the newspaper was printed and first published.


Additionally, the prosecution did not present any proof that Ephraim Genuino held office in Manila.


With these, it is clear as a sky that the RTC of Manila did not have jurisdiction to hear and decide the instant libel case.


Like the previous discussion, the Court En Banc’s power is being pleaded to intercede and allow the second motion for reconsideration.


Hence, the instant motion for leave to admit second motion for reconsideration should be granted.


CA Decision ruling that petition for
relief must be dismissed for being
a wrong remedy is legally erroneous




It is clear in the contents of the petition for relief, the supplemental petition for relief, and the motion for reconsideration that it is actually the relief due to gross ignorance of the previous counsel that was being invoked in the same petition.


So that it is seen on the face itself that the accused-petitioner was invoking a remedy of relief under the doctrine of gross ignorance of the counsel and NOT under Rule 38 of the Rules of Court.


It being clear, it is also clear that the resolutions of the Court of Appeals in denying the petition for relief are legally erroneous.


Under this circumstance, the accused-petitioner is kneeling to the Court En Banc to exercise its power to allow the instant second motion for reconsideration.


There is no doubt that the resolutions of the Court of Appeals are legally erroneous. 


If the Resolutions of the First Division of this Court will not be reversed, it is like the Supreme Court En Banc is reversing several irreversible doctrines it has already established.


Why are the resolutions of the Court of Appeals legally erroneous?


The resolutions of the CA violated the jurisprudential rulings on gross negligence of counsel to put finish to the cause of accused-petitioner wrongfully convicted by the RTC of Manila.


It should have granted the petition for relief of the accused-petitioner upon the settled ground of gross negligence of counsel and NOT under Rule 38.


A reading of the resolutions of the Court of Appeals shows that it recognized the existence of gross ignorance of the counsel of the accused-petitioner.


But the CA nevertheless applied Rule 38 despite it being clear that is not applicable in the facts and circumstances.


It is therefore very clear that the Court of Appeals abandoned its positive duty.  This abandonment of duty constituted grave abuse of discretion in applying its duty tantamount to lack of excess of jurisdiction.


So that the Honorable First Division of the Supreme Court erred in stating that the Court of Appeals did not commit grave abuse of discretion when it dismissed the petition for relief.


            Cleary, the First Division of the Supreme Court failed to see that this petition for relief, although not written in the Rules of Court, is not the same as the Petition for Relief under Rule 38.


            This petition for relief is one that has been established by a series of decisions of the Supreme Court grounded on the GROSS NEGLIGENCE ALONE OF THE COUNSEL OF RECORD.


This “gross negligence of counsel” doctrine is settled in the case of Ace York Aguilar vs Court of Appeals and The People of the Philippines, G.R. No. 114282 November 28, 1995.


In this Aguilar case, the lawyer of accused Aguilar (an actor whose screen name was Ace Vergel) did not file the appellant’s brief. Through a new lawyer, Aguilar filed an entry of appearance and sought forty-five (45) days to file the appellant’s brief. The CA denied the entreaties of the new counsel. He went to the Supreme Court arguing that he was just a layman, ignorant of the intricacies and procedures in the appeal of his case, unfairly abandoned by his counsel without notifying him of the notice sent by the Court of Appeals to file his brief, and the same CA admitted the appeal brief of his co-accused. 


The Supreme Court reversed the CA and granted relief to Aguilar, justifying that:


Appeal is an essential part of our judicial system. Its purpose is to bring up for review a final judgment of the lower court. 6 The courts should, thus, proceed with caution so as not to deprive a party of the right to appeal. They should exercise their discretion on the allowance or denial of motions for extension of time to file the appellant's brief wisely and prudently, and serve the demands of substantial justice. They should consider public policy and necessity — that of putting an end to litigation speedily, and yet, harmonizing such necessity with the right of litigants to an opportunity to be heard. 7


The record indicates that petitioner appealed on time to the appellate court. Due to negligence, his former counsel did not file his (appellant's) brief. When he came to know of his counsel's failure, he tried to touch base with him. His efforts to contact his counsel were in vain for even the latter's office is unknown. As he was abandoned by his former counsel, he hired Atty. Arias on January 22, 1993, who entered his appearance before respondent court and immediately moved for an extension of forty-five (45) days to file appellant's brief. Atty. Arias cited the difficulty of gathering the records of the case. Respondent court was not persuaded and denied the motion for having been filed beyond the reglementary period.


In sharp contrast, respondent court graciously granted petitioner's co-accused an extension of time to file her brief. His co-accused's brief was filed beyond the grace period but was admitted on February 16, 1993 in the interest of justice. 8 There is no reason to treat the two (2) appellants with an uneven hand. Both allegedly conspired in committing the crime of Estafa. Their cases rest on the same facts. The better part of discretion is to admit petitioner's brief just as the late brief of Salvador was admitted. Equal protection of the law demands that we treat alikes, alike and the unalikes, unalike.

           
Further, the Supreme Court, citing book author Ruben Agpalo in his book Legal Ethics, said in Aguilar case, to wit:


More importantly, petitioner's right to appeal should not be lost through technicalities. His liberty is at stake. He faces a jail term of 17 years and 4 months to 20 years. If he has to spend this long stretch in prison, his guilt must be established beyond reasonable doubt. He cannot lose his liberty because of the gross irresponsibility of his lawyer. Losing liberty by default of an insensitive lawyer should be frowned upon despite the fiction that a client is bound by the mistakes of his lawyer.


The discourses lifted from Agpalo’s book are as follows:

xxx xxx xxx

The function of the rule that negligence or mistake of counsel in procedure is imputed to and binding upon the client, as any other procedural rule, is to serve as an instrument to advance the ends of justice. When in the circumstances of each case the rule desert its proper office as an aid to justice and becomes its great hindrance and chief enemy, its rigors must be relaxed to admit exceptions thereto and to prevent a manifest miscarriage of justice.
xxx xxx xxx
The court has the power to except a particular case from the operation of the rule whenever the purposes of justice require it.
xxx xxx xxx

If the incompetence, ignorance or inexperience of counsel is so great and the error committed as a result thereof is so serious that the client, who otherwise has a good cause, is prejudiced and denied his day in court, the litigation may be reopened to give the client another chance to present his case. In a criminal proceeding, where certain evidence was not presented because of counsel's error or incompetence, the defendant in order to secure a new trial must satisfy the court that he has a good defense and that the acquittal would in all probability have followed the introduction of the omitted evidence.  What should guide judicial action is that a party be given the fullest opportunity to establish the merits of his action or defense rather than for him to lose life, liberty, honor or property on mere technicalities.


In all the discourses of Aguilar case, the Supreme Court states nothing about any failure of the accused to update the status of his appeal by inquiring from his negligent counsel from time to time.


Obviously, the Supreme Court through the learned and erudite CJ Puno recognized the importance of the State’s obligation under the International Law that the States shall guarantee that all persons within their territories  be afforded all the rights to defend themselves against accusation before punishment.


Such that, it is immaterial whether or not there was an accompanying negligence on the part of the accused in order for him to avail of the relief.  What is indispensable to the State to do as a duty is to ensure that all persons are heard before getting condemned and to assure the world that they accord all opportunities to the accused before imprisoning him.  


It is the dissertation of the undersigned counsel that while it is forgivable for the State to err in judgment on the evidence presented because no one is a perfect judge, it is not allowed for the State to take advantage of the situation to seize the liberty of the accused just because of the grossly negligent lawyer who failed to comply with the requirements of appeal on matters of reglementary periods.  


This dissertation is further solidified by the fact that the Constitution and the courts require that before conviction the accused must be represented by a counsel.  And it is prohibited to convict the accused without a counsel.  Actually, not only a mere counsel is required by the Highest Law of the land, but a competent and independent counsel.   


If this is the command of the Constitution, it is as good as defiance to the Supreme Law and as good as convicting the accused without a counsel for the courts to seize his liberty just because his counsel’s negligence was accompanied by the failure of the accused to update his case with his lawyer.


This must be the rule when there is no express waiver on the part of the accused.


            Further, if this doctrine of gross negligence of counsel has been applied to Ace York Aguilar and many others, why will not the Supreme Court En Banc apply the same on accused-petitioner Leo Villan when he is similarly situated as the situations of Ace York Aguilar and others?



            Excessive Moral Damage Award of ₱5 million
and Exemplary Damage Award of ₱5 million



            There is no issue that excessiveness and oppressiveness of the Decision of the RTC of Manila are immediately seen on the face of the awards of ₱5 million for each of the moral damage and exemplary – for a libel case.


            In any yardstick, these monetary awards are excessive.  Hence, this part of the decision of the RTC of Manila is LEGALLY ERRONEOUS.


            With more reason that these awards are excessive and legally erroneous when the Decision of the RTC of Manila never cited a justification in the body of the decision to support these awards.


            Additionally, the RTC of Manila never picked the maximum of the maximum penalty of imprisonment in sentencing the accused-petitioner.  


            So that it may be asked: WHY AWARD EXCESSIVELY IN MORAL AND EXEMPLARY DAMAGES IF THE PRISON SENTENCE IS NOT EVEN IN THE MAXIMUM?


            In awarding ₱5 million for moral damage and another ₱5 million for exemplary damage, the RTC of Manila stated in the dispositive portion of the Decision, to wit:


              PREMISES CONSIDERED, judgment is hereby rendered finding accused Leo Villan GUILTY beyond reasonable doubt of the crime of libel.


              Applying Indeterminate Sentence Law, he is hereby ordered to suffer imprisonment of Six (6) months of Arresto Mayor as minimum to Two (2) Years, Eleven (11) Months and Ten (10) days of prision correccional as maximum.


              Accused is hereby ordered to pay Five (5) Million Pesos as moral damages, Five (5) Million Pesos as exemplary damages and legal fees in the amount of Twenty Thousand Pesos.


              Moral Damages are meant to compensate the claimant for any physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injuries unjustly caused.  Similarly, exemplary damages are imposed not to enrich one party or impoverish another but to serve as a deterrent against or as a negative incentive to curb socially deleterious actions.  (Allied Banking Corp. et al v. Sps. Eserjose, imposed, by way of example or correction for the public good. (Lietz, Inc. v. CA, et al, G.R. No. 122463)


              Since accused Nestorio Ibañez and Zandro Peralta remains at-large, let an alias warrant be issued against them and the case be sent to archives to be revived upon their apprehensions.

              SO ORDERED.

              Manila, Philippines, February 20, 2007.


            This other legally erroneous part of the judgment is another reason that the Supreme Court En Banc should allow the second motion for reconsideration in order to have an opportunity to scrutinize these legal errors.


            One thing is clear here:  the ₱5 million award for moral damages and the ₱5 million award for exemplary damage are legally erroneous.


            So that it is being pleaded to the Supreme Court En Banc to grant leave of court for the admission of his Second Motion for Reconsideration.


Neglect of facts of gross negligence
of counsel makes CA resolutions
legally erroneous that must corrected



            The circumstances and proofs proving gross negligence of counsel, Atty. Vicente, clearly present a picture of undisputed occurrence of gross negligence on his part.


            Now, let us revisit that gross negligence of the previous counsel, Atty. Romeo Rizal Vicente.


            The Regional Trial Court of Manila, Branch 26, promulgated the decision dated February 20, 2007, finding the accused-petitioner guilty of libel and sentenced him to suffer an imprisonment of six (6) months of arresto mayor as minimum to two (2) years, eleven (11) months and ten (10) days and to pay moral damages in the amount of Five Million Pesos (₱5,000,000.00) and exemplary damages in the amount of Five Million Pesos (₱5,000,000.00).


            A copy of the Decision of the RTC of Manila, Branch 26, was attached to the petition for certiorari as ANNEX “E.”


            The former lawyer of Villan, who was Atty. Romeo Rizal Vicente, filed a notice of appeal and it was granted by the RTC of Manila, Branch 26.


            Subsequently, the Court of Appeals issued a notice to file brief dated 29 January 2008 and it was received by Atty. Vicente on 5 February 2008.


            Atty. Vicente did not file any appellant’s brief.


            As a result, the Court of Appeals issued a Resolution dated 22 May 2008 dismissing the appeal for failure to file an appellant’s brief, declaring that the same appeal has been abandoned.  The same Resolution was received by Atty. Vicente on 28 May 2008.


            Atty. Vicente did not file any motion for reconsideration from the 22 May 2008 resolution.


            Consequently, the 22 May 2008 resolution was entered into the books of Entry of Judgment.


            Accused Villan was never informed by Atty. Vicente of all that happened with respect to the appeal.


            By that time, accused-petitioner Villan was already suffering from chronic high blood pressure until one day he was rushed to Manila Doctors Hospital on 7 April 2009 due to stroke. 


            Villan was confined at that hospital until 24 April 2009. 


Then he had to take more than a year of rest for him to finally recover from that illness.


            The fact of his hospitalization was proven by Annex “A” of the Supplemental Petition for Relief that he filed, now taken as an integral part of this petition. 


            Accused-petitioner Villan learned of the failure to file an appellant’s brief and the dismissal of his appeal when he learned of the issuance of a warrant for his arrest on 5 November 2012.


            Immediately, Villan filed a Petition for Relief From Judgment and filed a motion to lift the warrant on account of the Petition for Relief that was filed. It was granted by the Manila RTC, Branch 26.


            Thereafter, Villan filed a Supplemental Petition for Relief From Judgment.


            Briefly, he argued in those petitions for relief from judgment that the 22 May 2008 Resolution dismissing his appeal and the Entry of Judgment be set aside because it was a clear gross negligence on the part of his former lawyer, Atty. Romeo Rizal Vicente. 


Villan also argued that on his part, the accused-petitioner’s negligence was excusable considering his health condition for him to make verifications with his former lawyer, and considering further that his lawyer was actually a dying man who no longer had the capacity to write long pleadings such as appellant’s briefs.


Actually, not submitted to this case as part of the petition for relief from judgment is the fact that Atty. Vicente was involved in a vehicular accident.   So that what hastened further the death of Atty. Vicente was the fact that the taxicab he was riding smashed onto a trailer truck, crumpling beyond repair the said cab.  A copy of the police investigation report about the accident was attached to the Court of Appeals.


In its Resolution denying the petition for relief from judgment, the Court of Appeals virtually acknowledged the existence of gross negligence on the part of Atty. Vicente and the excusable negligence on the part of Villan.



            Decision is legally erroneous due to
total lack of proof of actual malice


           
A reading of the decision of the RTC of Manila shows immediately there is no mention or discussion of the existence of ACTUAL MALICE.  So that it is legally erroneous.


            It is acknowledged in the same decision that the offended party was a public officer.  In fact, the information stated that the offended party was a “prominent person.”


            And if he were stated in the information as a prominent person, it was an admission that the complainant was a public figure.


            And if he were a public figure, then the prosecution must submit proofs that there was actual malice in the publication of the OPEN LETTER.  This is a command of the Supreme Court in Guingguing vs Court of Appeals, G.R. No. 128959, September 30, 2005.


Actual malice means an act of publishing a false imputation despite knowledge of falsity or an act of publishing with reckless disregard of the truth or falsity of the imputation characterized by failure to cross-check the veracity of the same imputation.


At any rate, it must be proven first that the imputations involved in a libel case must first be proved to be false.


After proving the falsity, the obligation of the prosecution is to prove that the accused knew of the falsity before actually publishing the false imputations.


In the case at bar, the imputations involved were those written in the “Open Letter” at issue.   In fact, the contents in the same “Open Letter” was not written by the accused-petitioner.  It was written by the employees of Pagcor.


            Additionally, it is very clear in the decision of the RTC that the RTC did not resolve whether the factual allegations stated in the OPEN LETTER were false or true. 


            If there is no proof of falsity in any of the imputations stated in the OPEN LETTER, then there is no logic to conclude that actual malice existed.


            Stated otherwise, the fact that there is no proof of falsity mentioned in the decision of the RTC a quo, it is now very clear that the DECISION FINDING THE ACCUSED-PETITIONER GUILTY IS LEGALLY ERRONEOUS.


Instead, the Decision of the RTC only focused on its findings that the accused-petitioner met with officials of the offended party at Hyatt Hotel and that one of them in fact deposited ₱500.00 into the Metrobank account of accused-petitioner. 


Even if these meeting and deposit were true, this is not a proof actual malice. 


Actual Malice does not include the intention to gain or intention to take revenge. 


Stated otherwise, even if the author had the intention to destroy the honor of the offended party there is no actual malice if the imputations are true.


In the instant decision of the RTC of Manila, there is no factual ruling stating that the imputations in the OPEN LETTER are false.


It also did not rule whether the accused-petitioner knew those falsities in the “Open Letter,” assuming the contents of the “Open Letter” were false.


            So that if the accused-petitioner did not know whether the imputations were false, it can never be said that he knowingly published those imputations.


            Moreover, the RTC did not rule on whether those facts alleged in the “Open Letter” were of the nature and character that it was stupid to believe in them.


            To the contrary, the RTC can take judicial notice that the regime of Gloria Macapagal-Arroyo was oozing with graft and corrupt accusations from the citizens, so that it is reasonable to believe that her minions in various sensitive positions were also corrupt.  This is capable of demonstration.


            The RTC cannot take a blind eye on the Hello Garci tapes, the series of impeachment complaints filed against Gloria and many others.  The RTC promulgated the decision on 20 February 2007, when all those shenanigans in the Arroyo administration had been put on official records by various complaints.


            So that if these corrupt practices during the Gloria Arroyo administration were taken into account with the Open Letter, there was no circumstance that would obligate the accused-petitioner to make further cross-checking of the facts alleged in the same Open Letter.

           
            In short, the instant decision of the RTC of Manila is legally erroneous on account of lack of proof of actual malice.



Erroneous computation of penalties
makes decision legally erroneous



            On this score, the petitioner re-states his arguments in the petition to prove that the sentence is legally erroneous.


As to the imprisonment, Article 355 of the Revised Penal Code says as follows:

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

            It is a hornbook rule that all imprisonment terms under the Revised Penal Code must be divided into three periods.  This is mandatory to know how long is the minimum, how long is the medium, and how long is the maximum period.


            Under the RPC, prision correccional has the maximum of six (6) years.


            When Article 355 says that the convict of libel must be punished with prision correccional in its minimum and maximum periods, there is therefore an obligation on the part of the court to know what are the periods for minimum, medium and maximum in order to know the range of minimum and medium.


            If we were to compute, the period of imprisonment for the whole of prision correccional that is six (6) years must first be subtracted with the punishment below it that is arresto mayor that has the maximum of six (6) months before dividing the remaining balance of the period.


            Let six (6) years be converted to months and that is 6 years x 12 months a year = 72 months.


            Then subtract 6 months of arresto mayor and it leaves us with 66 months.


            Then divide 66 months by three (3) because there is a need to divide them into three periods.  And this gives the answer: 22 = 66 divided by 3.


            So that the range of the minimum of prision correccional proper is from six (6) months and one (1) day up to twenty-eight (28) months.

           
Expressing this by using the number of years as converted, the minimum proper of prision correccional per se is from six (6) months and one (1) day up to two (2) years and 4 months.


            Consequently, the medium proper of prision correccional ranges from two (2) years and four (4) months and one (1) day up to fifty (50) months (from 6 months of arresto mayor plus 44 months).


Expressing this using the number of years, the medium proper of prision correccional is from Two (2) Years and Four (4) months and One (1) day up to Four (4) Years and Two (2) months.

           
The range within the maximum shall not now be considered because the law on libel punishes up to the maximum of medium period of prision correccional.  This means that only fifty (50) months shall be considered.


            Now, the RPC requires that the whole range of penalty provided by law for a particular crime must be divided into three periods to determine the new minimum, the new medium, and the new maximum.


            Because the period to be considered to get the new three periods (minimum, medium, maximum) is Forty-Four (44) months, let 44 months be divided by 3 and we get 14.67 months.   This means that the interval of each period is 14.67 or 14 and two-thirds (2/3) months.  If the legal meaning of a month under the Civil Code is 30 days, two-thirds is equivalent to twenty (20) days.


With this, it is now understood that the new range of minimum shall be from “Six (6) Months and One (1) Day” up to the total periods of “six (6) months of arresto mayor plus 14.67 months (or plus 14 months plus 20 days)” and the total is 20.67 months (or 20 months plus 20 days).  If we express the total in years and months and days, we deduct twelve (12) months from 20.67 months to establish one year and be left with the balance of “eight (8) months and twenty (20) days” considering that 0.67 month is equal to twenty (20) days.


Expressing the terms with years, the new minimum is: “SIX (6) MONTHS AND ONE (1) DAY” up to “ONE (1) YEAR AND EIGHT (8) MONTHS AND TWENTY (20) DAYS.”


            The new medium shall start from ONE (1) YEAR, EIGHT (8) MONTHS and TWENTY-ONE (21) DAYS.”


To know the end day of the new medium, the interval period of 14.67 months must be added.


So we get the END DAY of the new medium as this:  14.67 months plus 20.67 months and we get the total as 35.33 months or 35 and 1/3 months.


Converting into an expression of years, months and days, the maximum of the new medium is: TWO (2) YEARS and ELEVEN (11) MONTHS and TEN (10) DAYS.


            Now, the RPC says that whenever there is NO AGGRAVATING CIRCUMSTANCE, THE PENALTY THAT MUST BE IMPOSED SHALL BE ANYWHERE IN THE MEDIUM RANGE.  And the medium here is the new medium as computed above.


            But if there is at least one mitigating circumstance, the penalty shall be imposed in the minimum.  And the minimum referred to here is the NEW MINIMUM AS COMPUTED.


            For clarity and convenience, Article 64 of the Revised Penal Code is hereby quoted, to wit:


Art. 64. Rules for the application of penalties which contain three periods. — In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of Articles 76 and 77, the court shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstances:

xxx          xxx          xxx

2. When only a mitigating circumstances is present in the commission of the act, they shall impose the penalty in its minimum period.

xxx          xxx          xxx



            So that it is very clear that the only legal maximum imprisonment to be meted out to the accused-petitioner, assuming he is guilty, should be ONE (1) YEAR and EIGHT (8) MONTHS and TWENTY (20) DAYS, considering that he surrendered to the authority of the Court to face trial.


In this case, the decision of the RTC of Manila imposed the maximum of Two (2) years, Eleven (11) months and Ten (10) days when there is no aggravating circumstance.  ERRONEOUS! 


            Even if the maximum of the new minimum is to be punished on accused-petitioner Villan, his maximum imprisonment should only be ONE (1) YEAR and EIGHT (8) MONTHS and TWENTY (20) DAYS.


            Applying now the Indeterminate Sentence Law, or Act No. 4103 as amended, the minimum of the sentence shall be taken anywhere from the penalty next lower in degree than the imposable penalty.


            In this case, applying rules of graduation of penalties, the penalty next lower in degree shall be arresto mayor medium to arresto mayor maximum.


            While the RTC of Manila chose Six (6) Months as the minimum as it is within its discretion, THIS CHOICE REFLECTS A PROOF THAT THE RTC WAS HOSTILE TO THE ACCUSED-PETITIONER.


            Considering the mitigating circumstance of voluntary surrender to the court by means of posting the bond required, the RTC should have chosen the arresto mayor medium.


            Very clear.  The sentence imposed is beyond what is allowed by law. There is now a VIOLATION AGAINST THE DOUBLE JEOPARDY RULE.


The first jeopardy attaches to the imprisonment period that is what is required by the law. 


The second jeopardy attaches when the same accused is imprisoned further for the same offense.     


            Hence, this is another proof that the Decision of the RTC is legally erroneous.



(b) Decision is patently unjust



Deducing from the discussions above that the decision is legally erroneous on all material points, it necessarily follows that the decision of the RTC of Manila is patently unjust.


            To sum up, the following are the reasons why the decision of the RTC of Manila is patently unjust, to wit:


(a)  The fact that the decision is null and void for lack of jurisdiction by the court a quo that rendered the same;

(b) The fact that there is no proof of actual malice;

(c)  The fact that the moral and exemplary damages awards are excessive and baseless; and

(d) The fact that the imprisonment sentenced is erroneously excessive, assuming the accused-petitioner is indeed guilty.

The resolutions of the Court of Appeals are likewise patently unjust because it failed to take into account the clear gross negligence of the counsel of the accused-petitioner.


            The CA resolutions are also patently unjust because it applied Rule 38 of the Rules of Court when what is applicable is the jurisprudential rule on gross negligence of counsel.


            Entirely, the CA resolutions are patently unjust because it did not recognize the injustice done on the accused-petitioner by the grossly-negligent counsel.


            Any accused is helpless and unjustly imprisoned if he or she is not given an amplest opportunity to avail of the process of appeal when there is gross negligence of the counsel.


(c)  Potentially capable of causing unwarranted and irremediable injury or damage to the parties



If the decision of the RTC is not quashed by lack of jurisdiction, there is no dispute that the accused-petitioner will be imprisoned by a null and void decision.


Any day of loss of freedom cannot be compensated by any amount of money.



The Conclusion



            Summing up, the accused-petitioner has established the requisites to constitute a higher interest of substantial justice warranting the allowance of the second motion for reconsideration.


            As such, it is prayed of the Supreme Court En Banc that it grants the motion for leave to admit the second motion for reconsideration.



The Second Motion for Reconsideration


            The accused-petitioner is repleading all of the above as integral parts of this Second Motion for Reconsideration.


            Nevertheless, in pursuance thereof, the accused-petitioner hereby alleges the grounds and discussions on these grounds in pursuance of his second motion for reconsideration.




The Grounds for Second Reconsideration



            With due respect, the Honorable First Division of the Supreme Court erred in stating that the Court of Appeals did not commit grave abuse of discretion when the Court of Appeals dismissed the petition for relief.


            The First Division failed to see that the legal error of the Court of Appeals is the wrong application of Rule 38 instead of the jurisprudence on gross negligence of counsel doctrine.


            Additionally, there are COMPELLING REASONS that accompany the instant second motion for reconsideration and these are:


(a) The fact that the RTC of Manila, Branch 26, did not have jurisdiction over the subject matter of the case;


(b)  The fact that the prosecution did not submit any evidence of actual malice;


(c)   Assuming the accused-petitioner to be guilty, the moral damage award of ₱5 million and the exemplary damage award of ₱5 million are patently excessive and baseless;


(d) Assuming the accused-petitioner to be guilty, the imprisonment meted out is erroneous; and


(e) Assuming the accused-petitioner to be guilty, Supreme Court Circular 08-2008 advising judges to impose fine only in libel convictions is applicable in this case and it must be applied.


            With these grounds, it is begged of the Supreme Court to grant the second motion for reconsideration.



The Discussions



Gross negligence of counsel doctrine
must be applied and not Rule 38



            As explained in the discussions above, what should have been applied by the Court of Appeals should have been the “gross negligence of counsel” doctrine established by jurisprudence, including the Ace York Aguilar case.


            The discourses above clearly show that the Court of Appeals committed grave abuse of discretion when it applied Rule 38 instead of the jurisprudential rule on gross negligence of counsel.


This error by the Court of Appeals was already in the degree of abdication of duty.


            So that it is very clear that the Court of Appeals committed grave abuse of discretion when it dismissed this petition for relief upon the ground that Rule 38 requires such petitions to be filed in the Regional Trial Court.


            That was the reason why the petition for relief was grounded mainly on gross negligence of the former counsel who is now deceased.


            What will now be the use of gross negligence of the lawyer in relation to the case of the client if the same can only be given due course if the client failed to comply with the six-month and sixty-day rules?


            Certainly, “excusable negligence” and “gross negligence” are worlds apart from each other.


            This is settled in the case of Ace York Aguilar vs Court of Appeals and The People of the Philippines, G.R. No. 114282 November 28, 1995, where the Supreme Court through Chief Justice Puno granted relief to the accused and directed the Court of Appeals to reinstate the appeal.   


In this Aguilar case, the lawyer of accused Aguilar (an actor whose screen name was Ace Vergel) did not file the appellant’s brief. Through a new lawyer, Aguilar filed an entry of appearance and sought forty-five (45) days to file the appellant’s brief.   The CA denied the entreaties of the new counsel.   He went to the Supreme Court arguing that he was just a layman, ignorant of the intricacies and procedures in the appeal of his case, unfairly abandoned by his counsel without notifying him of the notice sent by the Court of Appeals to file his brief, and the same CA admitted the appeal brief of his co-accused. 


The Supreme Court reversed the CA and granted relief to Aguilar, justifying that:


Appeal is an essential part of our judicial system. Its purpose is to bring up for review a final judgment of the lower court. 6 The courts should, thus, proceed with caution so as not to deprive a party of the right to appeal. They should exercise their discretion on the allowance or denial of motions for extension of time to file the appellant's brief wisely and prudently, and serve the demands of substantial justice. They should consider public policy and necessity — that of putting an end to litigation speedily, and yet, harmonizing such necessity with the right of litigants to an opportunity to be heard. 7


The record indicates that petitioner appealed on time to the appellate court. Due to negligence, his former counsel did not file his (appellant's) brief. When he came to know of his counsel's failure, he tried to touch base with him. His efforts to contact his counsel were in vain for even the latter's office is unknown. As he was abandoned by his former counsel, he hired Atty. Arias on January 22, 1993, who entered his appearance before respondent court and immediately moved for an extension of forty-five (45) days to file appellant's brief. Atty. Arias cited the difficulty of gathering the records of the case. Respondent court was not persuaded and denied the motion for having been filed beyond the reglementary period.


In sharp contrast, respondent court graciously granted petitioner's co-accused an extension of time to file her brief. His co-accused's brief was filed beyond the grace period but was admitted on February 16, 1993 in the interest of justice. 8 There is no reason to treat the two (2) appellants with an uneven hand. Both allegedly conspired in committing the crime of Estafa. Their cases rest on the same facts. The better part of discretion is to admit petitioner's brief just as the late brief of Salvador was admitted. Equal protection of the law demands that we treat alikes, alike and the unalikes, unalike.


            Further, the Supreme Court, citing book author Ruben Agpalo in his book Legal Ethics, said in Aguilar case, to wit:


More importantly, petitioner's right to appeal should not be lost through technicalities. His liberty is at stake. He faces a jail term of 17 years and 4 months to 20 years. If he has to spend this long stretch in prison, his guilt must be established beyond reasonable doubt. He cannot lose his liberty because of the gross irresponsibility of his lawyer. Losing liberty by default of an insensitive lawyer should be frowned upon despite the fiction that a client is bound by the mistakes of his lawyer.


The discourses lifted from Agpalo’s book are as follows:


xxx xxx xxx

The function of the rule that negligence or mistake of counsel in procedure is imputed to and binding upon the client, as any other procedural rule, is to serve as an instrument to advance the ends of justice. When in the circumstances of each case the rule desert its proper office as an aid to justice and becomes its great hindrance and chief enemy, its rigors must be relaxed to admit exceptions thereto and to prevent a manifest miscarriage of justice.

xxx xxx xxx

The court has the power to except a particular case from the operation of the rule whenever the purposes of justice require it.
xxx xxx xxx

If the incompetence, ignorance or inexperience of counsel is so great and the error committed as a result thereof is so serious that the client, who otherwise has a good cause, is prejudiced and denied his day in court, the litigation may be reopened to give the client another chance to present his case. In a criminal proceeding, where certain evidence was not presented because of counsel's error or incompetence, the defendant in order to secure a new trial must satisfy the court that he has a good defense and that the acquittal would in all probability have followed the introduction of the omitted evidence.  What should guide judicial action is that a party be given the fullest opportunity to establish the merits of his action or defense rather than for him to lose life, liberty, honor or property on mere technicalities.


In all the discourses of Aguilar case, the Supreme Court states nothing about any failure of the accused to update the status of his appeal by inquiring from his negligent counsel from time to time.


Obviously, the Supreme Court through the learned and erudite CJ Puno recognized the importance of the State’s obligation under the International Law that the States shall guarantee that all persons within their territories  be afforded all the rights to defend themselves against accusation before punishment.


Such that, it is immaterial whether or not there was an accompanying negligence on the part of the accused in order for him to avail of the relief.  What is indispensable to the State to do as a duty is to ensure that all persons are heard before getting condemned and to assure the world that they accord all opportunities to the accused before imprisoning him.  


It is the dissertation of the undersigned counsel that while it is forgivable for the State to err in judgment on the evidence presented because no one is a perfect judge, it is not allowed for the State to take advantage of the situation to seize the liberty of the accused just because of the grossly negligent lawyer who failed to comply with the requirements of appeal on matters of reglementary periods.  


This dissertation is further solidified by the fact that the Constitution and the courts require that before conviction the accused must be represented by a counsel.  And it is prohibited to convict the accused without a counsel.  Actually, not only a mere counsel is required by the Highest Law of the land, but a competent and independent counsel.   


If this is the command of the Constitution, it is as good as defiance to the Supreme Law and as good as convicting the accused without a counsel for the courts to seize his liberty just because his counsel’s negligence was accompanied by the failure of the accused to update his case with his lawyer.


This must be the rule when there is no express waiver on the part of the accused.


In the instant case of Petitioner Leo Villan, he has very meritorious defenses, let the lack of jurisdiction by the RTC of Manila alone, to make up compelling reasons to set aside technicalities that will clearly defeat justice rather than promote it.


The other meritorious defenses of the accused-petitioner are the patently excessive and baseless moral damage award of ₱5 MILLION and exemplary damage award of ₱5 MILLION.


Additionally, the accused-petitioner has the right to be benefited by Supreme Court Circular 08-2008 advising judges to impose fine only in libel convictions.


Further, the other meritorious defense of the accused-petitioner is the fact that the prosecution did not present proofs of actual malice.


Ergo, it is very clear that the instant case is one where there is gross negligence of the counsel coupled with meritorious defenses.


Yet, the CA committed a mistake that is too elementary to many lawyers. 

           
The instant case can be looked in another way.

           
It is ordinary to understand Rule 38 that the petition shall be filed in the court that issued the order or resolution or decision sought to be set aside.


            But in this case, the decision or resolution that is being challenged is the one issued by the Court of Appeals in dismissing the appeal of the accused-petitioner.


In this case, the relief sought is the setting aside of the 22 May 2008 resolution of the CA dismissing the appeal of Villan for failure of his lawyer to file the appellant’s brief.  It was also clear that the same petition was seeking the setting aside of the Entry of Judgment the CA entered in its books.


            Yet, the CA denied the petition for relief and dismissed the MR taken from such denial.


            Hence, it needs no more exhaustive argument to stress that the CA committed grave abuse of discretion.


            Now, it is also very clear that the CA did not debunk the arguments of the petitioner-accused that his deceased lawyer, Atty. Romeo Rizal Vicente, committed gross negligence.


            That is, although it is a fact that Atty. Vicente was a septuagenarian who was already sickly and who was unfortunate to have ridden the taxicab that smashed into a trailer truck that caused him very serious physical injuries.


            With that very advanced age and illness, it was no longer expected for a lawyer like him to write a long and exhaustive pleading such as an appellant’s brief.


            The CA also did not reject the argument that Villan’s negligence in not following up his appeal with Atty. Vicente, if ever there was any, was excusable.


            So that the silence by the CA over the arguments stressing that the lawyer of Villan committed gross negligence so that he cannot be bound thereby can now be presumed as approval of the existence of gross negligence on the part of the lawyer and at the same time the existence excusable negligence on the part of the accused-petitioner.


            The merits of the case for acquittal of accused-petitioner Villan are also overwhelming to be ignored.


            Hence, the demands of the interest of justice alone are so compelling to set aside the Rules of Court in order to pave the way for justice to reign supreme.


Gross Negligence of Counsel


            Let us revisit that gross negligence of the previous counsel, Atty. Vicente.


            The Regional Trial Court of Manila, Branch 26, promulgated the decision dated February 20, 2007, finding the accused-petitioner guilty of libel and sentenced him to suffer an imprisonment of six (6) months of arresto mayor as minimum to two (2) years, eleven (11) months and ten (10) days and to pay moral damages in the amount of Five Million Pesos (₱5,000,000.00) and exemplary damages in the amount of Five Million Pesos (₱5,000,000.00).


            A copy of the Decision of the RTC of Manila, Branch 26, was attached to the petition for certiorari as ANNEX “E.”


            The former lawyer of Villan, who was Atty. Romeo Rizal Vicente, filed a notice of appeal and it was granted by the RTC of Manila, Branch 26.


            Subsequently, the Court of Appeals issued a notice to file brief dated 29 January 2008 and it was received by Atty. Vicente on 5 February 2008.


            Atty. Vicente did not file any appellant’s brief.


            As a result, the Court of Appeals issued a Resolution dated 22 May 2008 dismissing the appeal for failure to file an appellant’s brief, declaring that the same appeal has been abandoned.  The same Resolution was received by Atty. Vicente on 28 May 2008.


            Atty. Vicente did not file any motion for reconsideration from the 22 May 2008 resolution.


            Consequently, the 22 May 2008 resolution was entered into the books of Entry of Judgment.


            Accused Villan was never informed by Atty. Vicente of all that happened with respect to the appeal.


            By that time, accused-petitioner Villan was already suffering from chronic high blood pressure until one day he was rushed to Manila Doctors Hospital on 7 April 2009 due to stroke. 


            Villan was confined at that hospital until 24 April 2009. 


Then he had to take more than a year of rest for him to finally recover from that illness.


            The fact of his hospitalization was proven by Annex “A” of the Supplemental Petition for Relief that he filed, now taken as an integral part of this petition. 


            Accused-petitioner Villan learned of the failure to file an appellant’s brief and the dismissal of his appeal when he learned of the issuance of a warrant for his arrest on 5 November 2012.


            Immediately, Villan filed a Petition for Relief From Judgment and filed a motion to lift the warrant on account of the Petition for Relief that was filed. It was granted by the Manila RTC, Branch 26.


            Thereafter, he filed a Supplemental Petition for Relief From Judgment.


            Briefly, he argued in those petitions for relief from judgment that the 22 May 2008 Resolution dismissing his appeal and the Entry of Judgment be set aside because it was a clear gross negligence on the part of his former lawyer, Atty. Romeo Rizal Vicente. 


Villan also argued that on his part, the accused-petitioner’s negligence was excusable considering his health condition for him to make verifications with his former lawyer, and considering further that his lawyer was actually a dying man who no longer had the capacity to write long pleadings such as appellant’s briefs.


Actually, not submitted to this case as part of the petition for relief from judgment is the fact that Atty. Vicente was involved in a vehicular accident.    So that what hastened further the death of Atty. Vicente was the fact that the taxicab he was riding smashed onto a trailer truck, crumpling beyond repair the said cab.  A copy of the police investigation report about the accident was attached to the petition for certiorari with this Court as ANNEX “F” series and the copies of the photographs of the accident are attached hereto as ANNEX “G” series.


In its Resolution denying the petition for relief from judgment, the Court of Appeals virtually acknowledged the existence of gross negligence on the part of Atty. Vicente and the excusable negligence on the part of Villan.


Erroneous computation of penalties



            On this score, the petitioner re-states his arguments in the petition.


As to the imprisonment, Article 355 of the Revised Penal Code says as follows:


Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.


            It is a hornbook rule that all imprisonment terms under the Revised Penal Code must be divided into three periods.  This is mandatory to know how long is the minimum, how long is the medium, and how long is the maximum period.


            Under the RPC, prision correccional has the maximum of six (6) years.


            When Article 355 says that the convict of libel must be punished with prision correccional in its minimum and maximum periods, there is therefore an obligation on the part of the court to know what are the periods for minimum, medium and maximum in order to know the range of minimum and medium.


            If we were to compute, the period of imprisonment for the whole of prision correccional that is six (6) years must first be subtracted with the punishment below it that is arresto mayor that has the maximum of six (6) months before dividing the remaining balance of the period.


            Let six (6) years be converted to months and that is 6 years x 12 months a year = 72 months.


            Then subtract 6 months of arresto mayor and it leaves us with 66 months.


            Then divide 66 months by three (3) because there is a need to divide them into three periods.  And this gives the answer: 22 = 66 divided by 3.


            So that the range of the minimum of prision correccional proper is from six (6) months and one (1) day up to twenty-eight (28) months.


            Expressing this by using the number of years as converted, the minimum proper of prision correccional per se is from six (6) months and one (1) day up to two (2) years and 4 months.


            Consequently, the medium proper of prision correccional ranges from two (2) years and four (4) months and one (1) day up to fifty (50) months (from 6 months of arresto mayor plus 44 months).


Expressing this using the number of years, the medium proper of prision correccional is from Two (2) Years and Four (4) months and One (1) day up to Four (4) Years and Two (2) months.


            The range within the maximum shall not now be considered because the law on libel punishes up to the maximum of medium period of prision correccional.  This means that only fifty (50) months shall be considered.

           
Now, the RPC requires that the whole range of penalty provided by law for a particular crime must be divided into three periods to determine the new minimum, the new medium, and the new maximum.


            Because the period to be considered to get the new three periods (minimum, medium, maximum) is Forty-Four (44) months, let 44 months be divided by 3 and we get 14.67 months. This means that the interval of each period is 14.67 or 14 and two-thirds (2/3) months.  If the legal meaning of a month under the Civil Code is 30 days, two-thirds is equivalent to twenty (20) days.


With this, it is now understood that the new range of minimum shall be from “Six (6) Months and One (1) Day” up to the total periods of “six (6) months of arresto mayor plus 14.67 months (or plus 14 months plus 20 days)” and the total is 20.67 months (or 20 months plus 20 days).  If we express the total in years and months and days, we deduct twelve (12) months from 20.67 months to establish one year and be left with the balance of “eight (8) months and twenty (20) days” considering that 0.67 month is equal to twenty (20) days.


Expressing the terms with years, the new minimum is: “SIX (6) MONTHS AND ONE (1) DAY” up to “ONE (1) YEAR AND EIGHT (8) MONTHS AND TWENTY (20) DAYS.”


            The new medium shall start from ONE (1) YEAR, EIGHT (8) MONTHS and TWENTY-ONE (21) DAYS.”


To know the end day of the new medium, the interval period of 14.67 months must be added.


So we get the END DAY of the new medium as this:  14.67 months plus 20.67 months and we get the total as 35.33 months or 35 and 1/3 months.


Converting into an expression of years, months and days, the maximum of the new medium is: TWO (2) YEARS and ELEVEN (11) MONTHS and TEN (10) DAYS.


            Now, the RPC says that whenever there is NO AGGRAVATING CIRCUMSTANCE, THE PENALTY THAT MUST BE IMPOSED SHALL BE ANYWHERE IN THE MEDIUM RANGE.  And the medium here is the new medium as computed above.


            But if there is at least one mitigating circumstance, the penalty shall be imposed in the minimum. And the minimum referred to here is the NEW MINIMUM AS COMPUTED.


            For clarity and convenience, Article 64 of the Revised Penal Code is hereby quoted, to wit:


Art. 64. Rules for the application of penalties which contain three periods. — In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of Articles 76 and 77, the court shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstances:

xxx          xxx          xxx

2. When only a mitigating circumstances is present in the commission of the act, they shall impose the penalty in its minimum period.

xxx          xxx          xxx


            So that it is very clear that the only legal maximum imprisonment to be meted out to the accused-petitioner, assuming he is guilty, should be ONE (1) YEAR and EIGHT (8) MONTHS and TWENTY (20) DAYS, considering that he surrendered to the authority of the Court to face trial.


In this case, the decision of the RTC of Manila imposed the maximum of Two (2) years, Eleven (11) months and Ten (10) days when there is no aggravating circumstance.  ERRONEOUS! 


            Even if the maximum of the new minimum is to be punished on accused-petitioner Villan, his maximum imprisonment should only be ONE (1) YEAR and EIGHT (8) MONTHS and TWENTY (20) DAYS.


            Applying now the Indeterminate Sentence Law, or Act No. 4103 as amended, the minimum of the sentence shall be taken anywhere from the penalty next lower in degree than the imposable penalty.


            In this case, applying rules of graduation of penalties, the penalty next lower in degree shall be arresto mayor medium to arresto mayor maximum.


            While the RTC of Manila chose Six (6) Months as the minimum as it is within its discretion, THIS CHOICE REFLECTS A PROOF THAT THE RTC WAS HOSTILE TO THE ACCUSED-PETITIONER.


            Considering the mitigating circumstance of voluntary surrender to the court by means of posting the bond required, the RTC should have chosen the arresto mayor medium.


            Very clear.  The sentence imposed is beyond what is allowed by law. There is now a VIOLATION AGAINST THE DOUBLE JEOPARDY RULE.


The first jeopardy attaches to the imprisonment period that is what is required by the law. 


The second jeopardy attaches when the same accused is imprisoned further for the same offense.     



Lack of evidence of actual malice


            Re-examining the Decision of the RTC, it shows immediately that there is no mention or discussion of HOW ACTUAL MALICE WAS PROVEN considering that the offended party was already a public figure at the time of the publication of the “Open Letter” in issue.


            Additionally, the Decision of the RTC clearly shows that the RTC did not resolve whether the factual allegations stated in the OPEN LETTER were false or true. 


The Decision of the RTC only focused on its findings that the accused-petitioner met with officials of the offended party at Hyatt Hotel. From here, the RTC obviously wanted to rule that the accused-petitioner only manifested the motive to extort from Ephraim Genuino.


            What is important is that the RTC did not understand the meaning of actual malice.


Also important is the RTC decision did not rule on whether the allegations in the same “Open Letter” were false. 


It also did not rule whether the accused-petitioner knew those falsities in the “Open Letter,” assuming the contents of the “Open Letter” were false.


            So that if the accused-petitioner did not know whether the imputations were false, it can never be said that he knowingly published those imputations.


            Moreover, the RTC did not rule on whether those facts alleged in the “Open Letter” were of the nature and character that it was stupid to believe in them.


            To the contrary, the RTC can take judicial notice that the regime of Gloria Macapagal-Arroyo was oozing with graft and corrupt accusations from the citizens, so that it is reasonable to believe that her minions in various sensitive positions were also corrupt.


            The RTC cannot take a blind eye on the Hello Garci tapes, the series of impeachment complaints filed against Gloria and many others.  The RTC promulgated the decision on 20 February 2007, when all those shenanigans in the Arroyo administration had been put on official records by various complaints.


            So that there was no circumstance that would obligate the accused-petitioner into making further cross-checking of the facts alleged in the same Open Letter.


            One such decisions of the Supreme Court defining actual malice is found in Guingguing vs Court of Appeals, G.R. No. 128959, September 30, 2005.


            It is sickening to see RTCs that do not know the meaning of actual malice.


Yet the CA ignored this as a compelling reason.


Excessive and baseless civil damages


            The RTC also blatantly committed the error of awarding damage awards when the libel complainant did not even pay filing fees. 


            But worst, the RTC awarded EXCESSIVE MORAL DAMAGES AND EXEMPLARY DAMAGES.


            Imagine how can it be justified for the RTC to slap on the petitioner ₱5,000,000 moral damage award and another ₱5,000,000 for the exemplary damage award.


            There was no explanation made in the Decision of the RTC to justify these exceedingly disgusting civil damages.


            Yet the CA did not look at this as a compelling reason to justify relief from judgment and give the petitioner another opportunity to file his Appellant’s Brief.


For moral damage to accrue, the plaintiff must show he or she suffered sleepless nights, fears, anxieties and besmirched reputation.  Thereafter, he must show that the act that caused these pains was deliberately done.


            In the instant case, the RTC never attempted to discuss why there was a cause of action for moral damage.


            There was also hardly any evidence to prove that Genuino suffered moral damage. 


To the contrary, his own men mentioned in the same “Open Letter” did not file any complaint against Villan, an indication that they were not damaged morally.


            The RTC also failed to justify with evidence to show that the act of publishing was deliberately down and without any legal justification.  To the contrary, the justifications were very clear: to inform the public of the corrupt activities being done at the Pagcor led then by Genuino.


            Now, every civil claim must be paid with docket fees.


To know whether a complainant paid for the fees, it can be known from the records of this case.


In this case, it is obvious there is nothing to show that Ephraim Genuino paid for the ₱5,000,000 moral damage award and another ₱5,000,000 for the exemplary damage award.


            Even assuming that Genuino paid for the filing fees that cost about ₱250,000, more or less, still the moral damage award and the exemplary damage award cannot be supported aside from being patently excessive.


            And if the intention was clear for public interest, and that there is no doubt that the Open Letter was a public interest, there is no basis to say that the act of publishing the Open Letter is detestable to the community to be followed such that there was a necessity to slap exemplary damage for the public good.


            Even assuming there were justifications to award moral and exemplary damage, still the RTC erred because it is blatantly excessive.


            The offended party, Ephraim Genuino, did not submit proof why he was entitled to that so high a stature to say that as much stature was lost because of the published Open Letter.


            New evidence cropped up to bolster the truth of the factual allegations in the “Open Letter.” Let alone the Sandiganbayan’s finding of probable cause that Genuino and King are guilty of graft and corruption along with other then high officials of Pagcor.


            These new evidence can be taken of judicial notice because they are of public knowledge, capable of unquestionable demonstration, or matters that the courts ought to know.



Lack of jurisdiction by RTC



            Now, information on libel that was read on the accused-petitioner patently shows LACK OF JURISDICTION of the RTC of Manila.


            The same information did not state where the libel offense was committed.


            Article 360 of the Revised Penal Code is very clear that libel offense is deemed to have committed in the following places:


1.     In the province or city where the libelous item was printed and first published; or


2.     In the province or city where the offended party resided at the time of the commission of libel if the offended party is a private person; or


3.     In the province or city where the offended party held office at the time of the commission of libel if he were a public officer.


Even the staff box of the copy of Brigada News that was presented to the RTC of Manila during the trial showed that its editorial offices were located on FB Harrison St., Pasay City.  Most likely, the printing was done in Pasay City the first distribution or first publication was also done in Pasay City.


While it was stated in the information that Genuino was the chairman of Pagcor, it is not stated there whether he held office at Pagcor’s offices in other sites.  Right now, for instance, Pagcor holds office at Resort World in Nichols Air Base, Pasay City.


In Agbayani vs. Sayo, it is explicitly commanded by the Supreme Court that all informations for libel must:


(a)  state whether the offended party is a private person or a public officer;

(b) state the city or province where offended party was holding office at the time of the commission of libel if he were a public officer;  or

(c)  state the city or province where the offended party resided at the time of the commission of libel if the offended party were a private person.


            And if any libel information does not state so, then the information must be quashed.  The CA rejected this.



SC Circular 08-2008 another compelling reason



            The Supreme Court issued Circular 08-2008 advising judges to impose fine only instead of imprisonment in case of conviction for libel. 


Even if this is not a law, the fact that it gives substantive right to freedom it is substantially a penal law that is beneficial to the accused, it must be applied retroactively.


            This is another matter the Court of Appeals cannot ignore, and this Court must apply.


            Libel has been losing appeal to the people that it has always been a subject matter of public discussions.


            To the contrary, there has been strong clamor for the repeal of the law on criminal libel.


            Almost all senators have already filed bills calling for the revocation of the libel law under the Revised Penal Code.


            In the face of the necessity of increased public participation of public issues, libel is also necessary to be revoked if only to remove the chill from the citizens.



The Prayer


           
            WHEREFORE, it is prayed of the Honorable Supreme Court that:


1.     To lift this Motion for Leave to the Supreme Court En Banc;


2.     To allow the second motion for reconsideration; and


3.     To grant the Petition for Certiorari nullifying the Resolution of the Court of Appeal dated January 29, 2014 and the Resolution of the Court of Appeals dated 30 July 2014; and


4.     To GRANT the instant petition for certiorari.


            Other reliefs just and equitable are also prayed for.  Manila, 29 September 2014.


CAUSING SABARRE CASTRO
Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila
Emails: totocausing@yahoo.com, berteni.causing@gmail.com; Telephone No.: +632-3105521


By:


BERTENI CATALUÑA CAUSING
IBP No. 928535 / 06-01-2014 / Manila IV
PTR No. 2529536 / 06-01-2014 / Manila
Roll No. 60944/MCLE No. IV – 0007338 issued 10 August 2012


Cc:

ATTY. WILLIAM DELOS SANTOS
Counsel of record of Petitioner
Block 7, Lot 1, Veraville Arcadia Subd.,
Dulong Bayan, Bacoor, Cavite 4102


COURT OF APPEALS, Manila (CA-GR-CR No. 30690)


OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo St., Makati


PRESIDING JUDGE
RTC of Manila, Branch 26 1000 Manila (Crim. Case No. 03-215325)


JUDGMENT DIVISION (Supreme Court)


EXPLANATION


            Lack of personnel compelled the filing and service of this Motion for Reconsideration by registered mails.



BERTENI CATALUNA CAUSING


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