Hataw defense vs Manila cop's 2nd libel

Hataw defense vs Manila cop's 2nd libel


Police Inspector Rosalino P. Ibay Jr. has filed his second libel case against me as the legal counsel of Hataw tabloid newspaper.

This is being posted to inform the public of this matter of public interest.

Read the Joint Counter-Affidavit to know and learn an art of writing a legal defense.


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Republic of the Philippines
Department of Justice
National Prosecution Service
CITY PROSECUTION OFFICE
M a n i l a


PSINSP. ROSALINO P. IBAY, JR.,
                                    Complainant,           

                   -versus-                                      NPS DOCK. No.  XV-07-INV-14K-07287
                                                                                    FOR: LIBEL

JERRY S. YAP, GLORIA M. GALUNO,
EDWIN R. ALCALA, ATTY. BERTENI
CAUSING, and BECKY RODRIGUEZ.,
                                    Respondents,
x-------------------------------------------x
Republic of the Philippines          )
City of Manila                                  )SC


JOINT COUNTER-AFFIDAVIT


We, JERRY S. YAP, GLORIA M. GALUNO and EDWIN R. ALCALA, of all legal ages, Filipinos, all of Rm. 103 National Press Club Bldg., Magallanes Drive, Intramuros, Manila, ATTY. BERTENI CATALUNA CAUSING, whose office is located at Unit 1, No. 2368 Leon Guinto St. corner JB Roxas St., Malate, Manila, and BECKY RODRIGUEZ, of legal age, with Office address at JGV Publishing House Inc., Leyland Bldg., Delgado St., Corner 20th St., Port  Area, Manila, after having been duly sworn to in accordance with law, hereby depose and aver that:


1.     We are the named respondents in the baseless, capricious and perjurious charge filed by the complainant, a public official, exercising his functions as a Police Senior Inspector of the Manila Police District, Moriones Police Station PS-2, J. Nolasco St., Tondo, Manila, as alleged by the complainant in his Complaint Affidavit subscribed and sworn to before the Assistant City Prosecutor, Jonathan R. Carungcong of the City Prosecutor Office dated November 18, 2014;


2.     The instant complaint arose from the article authored by Jerry S. Yap, which was entitled “SALOT NA TULAK SA DISTRITO UNO NG MAYNILA [ATTENTION: PDEA]”;


3.     The same article was published in the 3 October 2014 issue of Hataw and 4 October 2014 issue X-Files, so that the contents of the article as published in the former are the same as the contents published in the latter;


4.     According to the complainant, we committed the felony of libel by publishing the said article because the same allegedly gravely injured his name, reputation and character;


5.     With utmost respect to the complainant, the questioned column is not libelous;


6.     The contents are not vilifying or defamatory to his person and therefore;


7.     It is also clear from the contents that there was no ACTUAL MALICE that is applied if the offended party is a public official like the complainant;


8.     Actual malice is defined as knowingly publishing a false defamatory item or reckless disregard of the falsity of the defamatory item – a settled definition by jurisprudence, including the leading case of Guingguing vs Court of Appeals, GR No. 128959, September 30, 2005;


9.     There was also no intention to defame the complainant much less destroy his reputation;


10.                         The respondents journalists, except for Atty. Berteni Cataluna Causing who is only a legal counsel of Hataw and had no participation in the editing and publication of the questioned item, are entitled to the presumption that they performed regularly their official business as working journalists in the writing, editing and publication of the questioned article;


11.                         Libel as provided for by Article 353 of the Revised Penal Code is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act or omission, condition, status or circumstance tending to cause the dishonor, discredit or contempt of a natural or a juridical person, or to blacken the memory of one who is dead.


12.                         For an imputation to be libelous, the following requisites must concur: a) it must be defamatory; b) it must be malicious; c) it must be given publicity; and d) victim must be identifiable; as laid out in Novicio v. Agabon, 463 Phil, 510, 513.


13.                         In criminal law, it is required that all elements of a crime must exist to constitute a crime and the absence of only one element negates crime, the same is the rule in libel;


14.                        In the instant case, there is no libel to speak of because of the following legal reasons:

a.     the elements of defamation and malice are absent; and
                                  
b.     the questioned column is qualifiedly privileged being a fair commentary on matters of public interest.


No elements of defamation and malice


15.                         A repeated reading of the column article in question clearly shows there is no defamatory item in the column, at least in so far as the complainant is concerned;


16.                         First, the facts recited in the column article are not a product of sheer fabrication but a result of prudent gathering of facts which were counter-checked with sources having personal knowledge of the facts recited therein;


17.                         While the respondents can assure the veracity of the facts recited therein, the respondents are still invoking their right under Republic Act No. 53, or the “Sotto Law”, which protects journalists from being compelled to reveal their sources of news information;


18.                         The complainant decries that the article presented in the two (2) newspapers are the incident on the third week of August 2014 wherein a drug pusher was arrested at a checkpoint of PCP Don Bosco under PS-1;


19.                         In essence, the complainant bases his present complaint upon his claim he was already relieved from PS-1 on May 28, 2014 and reassigned to District Headquarters Support Unit of the MPD Headquarters prior to the publication of the questioned article;


20.                         With the premise resting on his claim that he was already relieved on 28 May 2014, Ibay is insinuating that he was libeled when it was published in the same column article that an illegal drug pusher was caught in August (there was no mention of the year in the column) with drugs and a .45 pistol at a checkpoint of the Don Bosco Police Station of the MPD Police Station No. 1 and that the said arrest occurred during the time of Ibay;


21.                         First, even if indeed the arrest occurred at the time of Ibay as the chief of the Don Bosco Police Station, there is no defamation because there was nothing written in the column article that Ibay was there present when the arrest was done and when the act of freeing the arrested person happened;


22.                         By being the head alone of a team of policemen who committed a crime does not bring defamation to the head, unless the same head committed subsequent acts of covering up for the erring cops;


23.                         With more reason that there would be no defamation if Ibay were telling the truth that he was no longer the head of the team of policemen who arrested – and freed – an illegal drug peddler for possession of an illegal drug and possession of a firearm;


24.                         Second, the column article mentioned merely mentioned that the arrest and freeing of an illegal drug peddler happened in August and it did not mention any year in order to make his reassignment on 28 May 2014 material to the issue of defamation;


25.                         In brief, the fact that there is no mention that Ibay participated in the arrest and freeing of the illegal drug peddler is A TRANSACTION THAT SPEAKS CLEARLY FOR ITSELF, that Ibay was not defamed;


26.                         To the contrary, if the claim of Ibay that he was already relieved on 28 May 2014 as chief of the Don Bosco sub-station were true, it may be possible also to say that his removal may be due to poor performance as a chief or due to a malfeasance, misfeasance or non-feasance;


27.                         Additionally, it is a fact that Supt. Anonueva was mentioned in the same column as the head of the entire Police Station No. 1 but he did not even file a libel case;


28.                         If Anonueva did not file any libel complaint, it is presumed that the questioned column article is not libel;


29.                         Just to enlighten the investigation prosecutor, pertinent portions of the questioned article are hereby quoted:

         “xxxxxx Una umanong nahuli ang nasabing tulak nuong third week ng Agusto sa checkpoint ng MPD-PS-1-PCP DON BOSCO. Panahon pa umano ito ni S/Insp. Rizalino Ibay, Jr. at Supt. Anonuevo. Ang sabi pa, nahulihan ng kalibre .45 at droga pero kinabukasan nakapagtatakang nakalabas agad ng kulungan?”

xxx xxx

       MPD district director, Gen. Rolando Asuncion, grabe na ang proliferation ng droga sa Tondo lalo na dyan sa area of responsibility (AOR) ng Tondo 1 na ang itinuturong No, 1 supplier ng illegal na droga lalo na ang shabu ay kaanak ng isang opisyal ng barangay.

       Pwede bang paki imbestigahan kung bakit mabilis na nakalalaya yang notorious drug pusher sa Tondo 1?

       Paki busisi na rin ninyo and mga lespu ninyo bakit medaling nakalulusot ang pusher nay an.

       Magkano ‘este ano ang dahilan!?”


30.                          Also, it is very clear that there is no actual malice in the same questioned article;


31.                         To begin with, actual malice involves only items that are defamatory, so that if there is no defamation in the writings as clearly shown above, no matter the falsity there is no actual malice;


32.                         Again, for emphasis, actual malice is defined as knowing publishing a DEFAMATORY item or reckless disregard of the falsity of the DEFAMATORY item;


33.                         It means that if the item is not defamatory, there is nothing that actual malice can be reckoned from;


34.                         A reading again of the same clearly show that columnist Jerry S. Yap alleged statement of facts;


35.                         For these statement of facts to be characterized as one with actual malice, going by the definition of the jurisprudence, these must be false and the columnist knew these were false at the time of writing, editing and publication;


36.                         Can it be said that these recited facts are false?


37.                         No, because the complainant did not even submit any proof that these facts are false;


38.                         Assuming these recited facts are false, can it be said that the writer, editor and publisher knew these are false at the time of the writing, editing and publishing?


39.                        No, because the complainant did not submit proof that the respondents knew these recited facts as false at the time of writing, editing and publishing;


40.                        Specifically, was it false to say that the complainant was the head of the Don Bosco Police Sub-station when the arrest and freeing of an illegal drug peddler in August?


41.                         No, because there is no reference time as to what year that arrest occurred in relation to 28 May 2014, so that there is no basis to say whether this is false or not;


42.                         In addition, it is still very much possible that the complainant was the head of the same sub-station when the arrest occurred in August of any year;


43.                         Specifically again, can it be said that the respondents already knew that the complainant was no longer the head of the sub-station when the same arrest and freeing of an illegal drug peddler occurred?


44.                         No, because the complainant did not submit any evidence to prove that the respondents knew that the complainant was no longer the chef of the sub-station when the arrest and freeing of the illegal peddler occurred;


45.                        , as recorded in the questioned column from the two (2) newspapers – who incidentally involve Law Enforcement Officer who were enjoy the presumption of regularity in the performance of their functions – and was not fabricated to disgrace Complainant. Likewise, the publication of the questioned column was not done maliciously;


46.                         It is to stress that no matter the presence of hatred, once the complainant for libel is a public officer, the only measure or gauge to know if malice exist is to test it under ACTUAL MALICE TEST, the intention of the speaker is immaterial;


47.                         The speaker may have harbored the most of ill motives against the offended party, but there is no ACTUAL MALICE because the defamatory item is true or there is no proof it is false;


48.                          Complainant himself must know that the words he uttered in his Complaint-Affidavit including the statement of his alleged witness are not proof or evidence: EVIDENCE is one thing, ALLEGATION is another;


49.                          There is no more evidence submitted other than those mentioned in his complaint-affidavit and all that he has in his complaint affidavit are ALLEGATIONS and nothing more;


50.                         It was, therefore, incumbent upon him to prove the same;


51.                        The basic rule is that mere allegation is not evidence, and it is not equivalent to proof, as laid by jurisprudence, including the case of Philippine National Bank v. Court of Appeals, G.R. No. 116181, January 6, 1997, 266 SCRA 136, 139;


Qualifiedly privileged being a fair
commentary on matters of public interest.


52.                          The contents of the questioned article are undisputedly of public interest;


53.                         From the root doctrine that PUBLIC OFFICE IS PUBLIC TRUST, matters of performance of an official are imbued with public interest;


54.                         The complainant, being a policeman, is occupying a public office, and therefore a public officer;


55.                         As a public officer, he must be reminded that it is the right of every citizen to be informed on what he is doing, whether he should be replaced or kept in the present position;


56.                         Therefore, for voluntarily joining public service, any person like the complainant must be ready that criticism on his performance is a fact of life and inherent in his position and rank;


57.                        To the distaff side, or the other side, are the people composing the public being served by all public officers;


58.                        It is awkward to say that the reputation of one public officer like the complainant must be protected from the public that demands good performance from the public officer;


59.                        The rule of contract in every public officer is that he gets salaries in return for good service from the taxpayers who are the people and who are the public


60.                         And if it is a contract of service to the public, complaints of whether the performance breached or fell short of the contractual obligations is always expected and the public officer concerned has no choice but to strive harder to do better and look better to the public;


61.                         In the normal course of life, the public has no way of knowing how each public officer performed except by way of the working journalists who reported to them what happened and who were involved in every happening, so that the public will have informed decision as to how to act on one official’s performance;


62.                         The above discussions jibe with the old case of US v. Bustos, 37 Phil. 731, 740-41 (1918), which proclaimed:

 “The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the incision of its probe relieves the abcesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged by the balm of clear conscience. A public officer must not be too thin-skinned with reference to comment upon his officials acts. Only thus can the intelligence and dignity of the individual be exalted. XXX”;

63.                          This Bustos proclamation was based upon the correct common ground that says that any person, even the President, the Vice-President, the Senator, the Congressmen, the Justices and all others including complainant Ibay is LESS THAN A STATE, and in protecting the state by means of criticism of any official’s act that destroys the foundation of the statehood and its government, that person may have been prejudiced and it is a form of damage without injury or damnum absque injuria because there is no other means of upholding the existence, honor, integrity and sovereignty of the STATE against a public officer whose acts are adjudged by the people or the public as inimical to the interest of the State;


64.                         So that Bustos stated:

Liberty to comment on the conduct of public men in free speech. The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech.   The sharp incision of its probe relieves the abscesses of officialdom.   Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience.    A public officer must not be too thin-skinned with reference to comment upon his official acts.   Only thus can the intelligence and dignity of the individual be exalted.  Of course, criticism does not authorize defamation.  Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good.  Rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary -- to any or all the agencies of Government -- public opinion should be the constant source of liberty and democracy. (See the cases of Wason vs. Walter, 4 L.R. 4 Q. B., 73; Seymour vs. Butterworth, 3 F. & F., 372; The Queen vs. Sir R. Garden, 5 Q. B. D., 1.)


65.                         This is followed up by the Fair Comments Law established under  Borjal v. Court of Appeals, G.R. No. 126466, January 14, 1999, 301 SCRA 1, 21-22, where the Supreme Court proclaimed once again that matters of public interest, even if the actor involved is a private citizen, are qualifiedly privileged;


66.                         The complainant must be reminded that just because he felt he was embarrassed, his own feelings is not the test of whether he was defamed or not;


67.                         Similarly, the complainant must also be reminded that just because he feels he has good reputation to the public, his own feelings is the test of whether he in facts has a good reputation;


68.                         It is now what one looks at his self or feels for his self, it is what the public holds him in the eyes of the people;


69.                         Let the complainant be reminded of the Supreme Court pronouncement in Bulletin Publishing Corp. v. Noel, G.R. No. L-76565, November 9, 1988, 167 SCRA 255, to wit:

           “The term “community” may of course be drawn as narrowly or as broadly as the user of the term and his purposes may require. The reason why for purposes of the law on libel the more general meaning of community must be adopted in the ascertainment of relevant standards, is rooted deep in our constitutional law. That reasons relates to the fundamental public interest in the protection and promotion of free speech and expression, an interest shared by all members of the body politic and territorial community. A newspaper. . . should free to report on events and developments in which the public has a legitimate interest, wherever they may take place within the nation and as well in the outside world, with minimum fear of being hauled to court by one group or another (however defined in scope) on criminal or civil charges for libel, so long as the newspaper respects and keep within the general community. Any other rule on defamation, in a national community like ours with many, diverse cultural, social, religious and other groupings, is likely to produce an unwholesome “chilling effect” upon the constitutionally protected operations of the press and other instruments of information and education.”


70.                           In view of the foregoing, this complaint must fail.

            IN WITNESS WHEREOF, we sign this Joint Counter-Affidavit on 6 January 2015 in the City Prosecutors Office of Manila.


JERRY S. YAP                 GLORIA M. GALUNO                          EDWIN R. ALCALA
     Affiant                                       Affiant                                       Affiant




ATTY. BERTENI CATALUNA CAUSING            BECKY RODRIGUEZ
                                          Affiant                                            Affiant


       SUBSCRIBED AND SWORN TO BEFORE ME on 6 January 2015 in the City of Manila.  I FURTHER CERTIFY that I have personally examined the affiants and I am convinced that they understood and voluntarily executed the same.



HON. AIDA D. COLIFLORES-ROMERO
Assistant City Prosecutor


            
  


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