Weird libel case okayed
by fiscal, court in Albay
To approve a case to be filed in court, the measurement used by the prosecutors is the existence of the elements of the crime being considered.
In libel, the elements are DIMP (defamation, identification, malice and publication).
A medical doctor in Albay filed a libel complaint against the publisher, editor and circulation manager of Hataw tabloid newspaper.
The subject matter of the complaint is a news story entitled "P68-M PHILHEALTH FUNDS 'NIRAKET NG ALBAY HOSPITAL.'"
The story merely said that the hospital was being pinpointed to have racketeered the funds of Philhealth by means of collecting for ghost patients using the names of existing Philhealth members. No name of any person or officer or director or stockholder of the hospital was mentioned in the same story.
Out of the blue, this doctor who identified himself as Dr. Jeremias T. Rebueno filed a libel complaint against Hataw publisher, editor and circulation manager.
The main defense I wrote against the complaint was that there was nothing in the story that identified the doctor as the one guilty of the falsification of patients so that it cannot be said that the doctor was defamed. It cannot also be stated there was malice against the doctor because he was not identified.
An assistant city prosecutor tasked by the Regional State Prosecutor to conduct the preliminary investigation ruled there was probable cause for libel upon the argument that it is known n Albay that once you mentioned the name of the hospital the people of Albay refer the same to Dr. Rebueno. This argument is weird.
It ended up in the Office of the Provincial Prosecutor filing an information for libel in the RTC of Ligao, Branch 31. The court obviously did not do its duty to personally examine the complainant and the witnesses to determine probable cause for libel. If only the RTC examined the evidence, it will easily see that the proposition was weird.
Nevertheless, I filed a motion to dismiss before the RTC of Ligao, Branch 14, on the justification that it is very clear and patent on the face that there was no defamation, there was no identification, there can be no malice and there can be no publication because the name of Dr. Rebueno was not published in the story to start with.
It is hoped that sense of justice and fairness rule upon the mind of the court.
To the said motion to dismiss, the prosecutor argued that it was filed late because it was filed beyond the 10-day reglementary period and that the prosecutor merely exercised its executive discretion when it decided to file this libel case and the court cannot clip its powers.
I argued that there is no such a thing as 10-day reglementary period in the filing of a motion to dismiss. As long as a cause for the dismissal appears, a motion therefor can be filed anytime.
Additionally, I argued that the Crespo vs. Mogul doctrine established by the Supreme Court calls for the exercise of discretion by the court whether to approve the case of the prosecutor or not.
The issues can be read through the Reply I filed against the opposition of the prosecutor.
If you dare to read a long pleading, here is the Reply:
Republic of the Philippines
Fifth Judicial Region
Regional Trial Court
PEOPLE OF THE PHILIPPINES,
- versus - Crim. Case No. 7437
JERRY YAP, GLORIA GALUNO
and EDWIN ALCALA, Owner/Publisher,
Managing Editor, and Circulation
Manager, respectively of Hataw! Dyaryo
Ng Bayan, with address at Rm. 106,
National Press Club Bldg., Magallanes
Drive, Intramuros, Manila,
(Motion to Dismiss
Lack of Probable Cause)
All the accused, by the undersigned counsel, respectfully file this Reply against the Opposition filed by the Assistant Provincial Prosecutor against the Motion to Dismiss filed upon the ground of OBVIOUS lack of probable cause.
No such thing as 10-day rule
It is sad and unfortunate for justice in Albay because its prosecutor is invoking a rule that is not found in any book.
Poor Bicolanos of Albay as they stand to be victims of injustice in the hands of their prosecutors.
In Rule 110 and Rule 112, there is no such a thing as 10-day rule when one files a motion to dismiss based on the lack of probable cause.
The ten-day rule it is saying is the 10 days of reglementary period within which the prosecutors must decide a preliminary investigation case.
As to the court, while it is required to make a ruling within ten (10) days as to the issue of whether there exists probable cause for the case filed by the prosecutors, it is not mandated to do the same within such period and the court can take its time as long as it is justified.
If the Court wants to be clarified, it can summon the witnesses to be personally examined by the judge to personally determine probable cause to hold the accused for trial.
So that this proposition of the prosecutor of Albay is dangerous to the name of justice in the province.
15-day reglementary period for MR
On the part of the accused, they have the right to file a motion for reconsideration within fifteen (15) days from receipt of a copy of the order finding probable cause.
There is nothing in the record that shows whether the accused have received a copy of an order of this Court declaring there is probable cause.
So that even if we were to subscribe to the erroneous argument of the provincial prosecutor of Albay, the fact that the accused have never received any order of the Court declaring the finding of probable cause, the instant motion can still be allowed as a substantial Motion for Reconsideration from the finding of probable cause by the Honorable Court.
Motion to Dismiss not bound by time
There is no time frame under the Rules of Court that prescribes as to when a motion to dismiss can be filed in a criminal proceeding.
As long as the ground for a motion to dismiss appears or at least can be argued, the same motion to dismiss can be filed anytime as long as it is not barred by the arraignment or by other causes.
In the instant case, there is no arraignment yet. Hence, everything is still in the preliminaries and all pre-arraignment issues can still be brought up before the Honorable Court.
Hence, the opposition of the Provincial Prosecutor on the basis of the alleged 10-day rule does not hold water, much less air.
Executive discretion to decide
probable cause not absolute
It is unfortunate for the Provincial Prosecutor to assert that just because its office has already decided to file a criminal case through a piece of criminal information it was already prohibiting the Court from dismissing the same.
That is erroneous.
The duty and power of the provincial prosecutor are to file a piece of criminal information in court if there is sufficient probability—not just an indicia of probability—that a crime was committed and that the accused is likely guilty thereof that he or she must be held for trial.
The provincial prosecutor has no power or no discretion to file a piece of criminal information if it is patent on the face of a case that there is no sufficient probability that a crime was committed.
Like in this case, there is no even slight indication that the crime of libel was committed in so far as the person of Dr. Jeremias T. Rebueno is concerned.
His name was not mentioned in the questioned news article published by Hataw. So that there is clearly no element of identification.
In criminal law, if one element of the crime is absent, then there is no crime.
The private complainant, Dr. Jeremias T. Rebueno, did not even submit evidence how he was identified. The Provincial Prosecutor through the delegated Assistant City Prosecutor took judicial notice that a defamatory attack against the hospital is also a defamatory attack against Dr. Jeremias T. Rebueno.
This is absurd and a blatant twist of the rule of law and the rule of evidence.
If the same was taken of judicial notice when it is not justified, chances are the prosecutor’s office was beholden to the influence or money of the complainant.
This Court therefore has the obligation to give relief to the accused as a bulwark of press freedom and freedom against persecution.
This executive discretion to file a complaint in court must be exercised cautiously and fairly, knowing that the executives in the persons of the prosecutors have that obligation or duty also to spare the innocent.
And when there is no evidence submitted, a person being charged before the prosecutor is deemed innocent. And because Dr. Jeremias T. Rebueno did not submit any evidence how he can be identified when the name of the hospital is mentioned, the Provincial Prosecutor has no authority to say there was probable cause that Dr. Jeremias T. Rebueno was identified.
This is so simple as this.
So that the Provincial Prosecutor cannot complaint if this Court dismiss the instant case for utter lack of the element of identification.
Next, there is also an utter lack of the element of defamation.
This is because of the lack of identification.
If no one was identified in the story that is deemed to be destructive to honor, then nobody is defamed.
In the instant case, if there was no insinuation that Dr. Jeremias T. Rebueno was the cause of the corruption or racketeering committed, there was no defamation against him. Simple as that.
So that it is obvious that there is no element of defamation. With this, there is no libel. As such, the instant case must be dismissed.
Crespo vs Mogul demands dismissal
Having clearly shown the lack of the elements of identification and defamation, the doctrine announced in the Crespo vs. Mogul case demands for the Court to exercise its power and discretion to save the accused from GRAVE ABUSE OF DISCRETION COMMITTED BY THE PROSECUTOR.
In this case, grave abuse of discretion committed by the provincial prosecutor of Albay is not only apparent. It is blatant on its face, crying to the whole world that prosecutors of Albay are torturers.
If in the eyes of the prosecutor there is probable cause for libel, it can never be seen by honest evaluation of any honest lawyer.
Has honesty been in crisis in this part of the country?
It is hoped it is not.
So that there is no other option for the Honorable Court. The demand for the dismissal is clear. The Court must therefore dismiss this case.
Motion for Consolidation by the Prosecutor
The accused are opposing the motion of the provincial prosecutor to consolidate this case with another case under Criminal Case No. 7436.
This is because of the following reasons:
First, the accused there is different.
Second, the instant case is dismissible on its face.
Third, how the acts were done in the other case are different from the acts being considered in the instant case.
As such, the Court must DENY the motion for consolidation.
Sharing of online post not liable
Justice Abad, in its ponencia in GR No. 203306, stated that only the original author of the online posting can be held liable and those who shared the same can never be liable.
In the instant case, the accused merely shared in full what was written and posted on the website of Radyo Bombo.
There is no issue that the complainant here did not charge Radyo Bombo, warranting a presumption that those statements or allegations published by Radyo Bombo were true because the private complainant here or the hospital concerned DID NOT FILE ANY CASE OR COMPLAINT against Radyo Bombo.
If the accused merely copied the online news and they are not original authors, then they cannot be charged. The instant case must be dismissed.
In this case, the original author was Radyo Bombo.
Said Justice Abad in GR No. 203306, to wit:
Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the challenged posting?
If the private complainant did not file any case against Radyo Bombo, what moral justification can he have in filing the case against the accused who only copied the news posted by Radyo Bombo on its website?
As ruled by Justice Abad, it is only when the reaction is different that the author of the reaction can be punished.
In this case, the posting of Radyo Bombo was merely copied and nothing more.
Principal vs accomplice
As argued by Atty. Zachary Estacio during the hearing, the instant case must also be dismissed because the accused, if at all, can be considered only as accomplices.
If there is no case against the principal despite knowledge of the prosecutor and the private complainant, then there can be no accomplice that is an accessory only of the principal crime committed, assuming for the sake of argument, by Radyo Bombo.
Accessory follows the principal. If the principal does not exist, the accessory cannot also exist.
Review of the Information
A review of the information is helpful if only to make the arguments clear.
In the first paragraph of the accusatory body of the INFORMATION, it states that the accused had malice and with intent to cause dishonor, discredit, and contempt upon the person of DR. JEREMIAS T. REBUENO, a private individual residing in Iraya Sur, Oas, Albay, and “the owner and medical director” of Dr. Manuel R. Rebueno Memorial Hospital located in Oas, Albay.
In the succeeding phrase of the same paragraph of the INFORMATION, the Office of the Provincial Prosecutor accuses that the accused did then and there wilfully, unlawfully and feloniously write, publish and permit to be written and published in the July 27, 2014 issue of Hataw! Dyaryo Ng Bayan, an injurious and defamatory article relative to and concerning the Rebueno Memorial Hospital with the headline “P68-M PHILHEALTH FUNDS ‘NIRAKET NG ALBAY HOSPITAL.’”
Subsequently, the INFORMATION reproduced the entire news article written with the title “P68-M PHILHEALTH FUNDS ‘NIRAKET NG ALBAY HOSPITAL.’”
A reading of the entire news article shows there is nothing there that mentioned the name of DR. JEREMIAS T. REBUENO. So that in the eyes of the Court that is neutral to the issue, there is nothing there that DR. JEREMIAS T. REBUENO was defamed.
It was also not mentioned in the news article that Dr. Jeremiah T. Rebueno was the owner or medical director or president or general manager of Dr. Manuel R. Rebueno Memorial Hospital.
What was mentioned was only the name of the hospital.
The hospital has a personality distinct from its directors, stockholders, managers, officers. An assault against the honor of the hospital therefore cannot be legally considered as an assault against its directors, officers, stockholders or related interests.
There is also nothing in the information that states how a defamatory assault on the hospital can be a defamatory assault also on Dr. Jeremiah T. Rebueno.
It is absurd to say that when the hospital, Dr. Manuel R. Rebueno Memorial Hospital (DMRRMH), is mentioned in vain, Dr. Jeremias T. Rebueno, is also put in vain.
The reverse is also absurd. It is absurd to say that the hospital is in vain when Dr. Jeremias T. Rebueno is put in vain.
It is difficult to imagine how it can be legally and logically supported to state at the bottom of the INFORMATION that the assault on the honor of the hospital transmitted maliciously to the public an impression that it Dr. Jeremias T. Rebueno was the one who stole funds when it was written in the news article that the hospital engaged in racketeering of Philhealth funds.
There was also no factual evidence submitted during the preliminary investigation to at least show the probability that an assault against the hospital was also an assault against Dr. Jeremias T. Rebueno.
So it is absurd to conclude that when it is reported that the hospital is said to be racketeering on Philhealth funds, it also means that Dr. Jeremias T. Rebueno is also said to be racketeering on Philhealth funds.
Unfortunately, it was only the Acting Provincial Prosecutor of Albay who provided the evidence not submitted by the complainant.
In supporting its loose stand, the Acting Provincial Prosecutor wrote in her Resolution that the element of identifiability was constituted because “Dr. Jeremias T. Rebueno is widely known” in Albay and Legazpi that “the hospital is owned by the complainant who also serves as the medical director thereof.”
Dr. Jeremias T. Rebueno did not submit any such evidence. It was the Acting Provincial Prosecutor that just said it out of nothing. IT WAS THEREFORE GRAVE ABUSE OF DISCRETION ON THE PART OF THE ACTING PROVINCIAL PROSECUTOR.
To stress again.
There is no evidence submitted to prove that indeed it is widely known that the hospital is owned by Dr. Rebueno.
There is no evidence to prove the assertion that when the hospital is mentioned, one would readily identify or relate it with Dr. Jeremias Rebueno.
Even if it is personally known to the investigating prosecutor or all the prosecutors, it is not enough to take judicial notice of that fact.
Respondents from Hataw News Team cannot be bound by that act of the prosecutor’s office to take judicial notice of that fact, considering alone that nobody in the Hataw News Team ever knows Dr. Rebueno personally or has met him.
Dr. Jeremias T. Rebueno is a nobody in the eyes of Hataw News Team.
The only way for Dr. Rebueno to avail of judicial notice privilege in this case is for him to demonstrate that in compliance with the Rules of Evidence.
To say there is identification of Dr. Jeremias T. Rebueno is to create something out of nothing when there is no evidence presented.
Moreover, there is no proof that there are no other persons having surname Rebueno in the same hospital. In fact, the name Dr. Manuel Rebueno is not referring to Dr. Jeremias T. Rebueno.
Further, this Office admitted that it was only tasked by the Regional State Prosecutor to conduct the instant preliminary investigation and that this case must be the case of the Office of the Provincial Prosecutor of Albay. It was only assigned after the Provincial Prosecutor inhibited itself from the case.
With this admission, it stands to reason that the Office of the City Prosecutor has no authority to take judicial notice that a hospital and a person are widely known in an area not within the jurisdiction of the City Prosecutor.
To adopt the justification given by the Office is like saying that when the Philippines is defamed, then the President is also defamed.
It is like saying that to say that the Department of Public Works and Highways (DPWH) is corrupt then the Secretary is also corrupt.
It is like saying that when the Catholic religion is being assaulted by a report that stated that there are unverified rapes committed by priests then the report also defamed the Pope.
It is absurd to say that the head of the family is also libelled if it has been reported that the family is beset by some children caught in the act of selling illegal drugs.
Ergo, it is very clear there was no identification of Dr. Jeremias T. Rebueno in the news story.
Further, libel is personal to the one against whom the libel is directed. If it were directed against the hospital, it can only be said to have libelled the hospital. It cannot transfer to Dr. Jeremias T. Rebueno. It was personal to the hospital, not to him.
The identifiability of the hospital is personal to it and it cannot be shifted or expanded to cover other persons.
To say otherwise is to say there is a law authorizing it when in truth there is none.
No Actual Malice:
No reckless disregard
On the issue of reckless disregard of the falsity, it is illogical and absurd to say that the members of Hataw News Team recklessly disregarded the possible falsity of the imputation under the unique situation.
There is no issue that Hataw News Team copied the news report from Bombo Radio Online report. The City Prosecutor did not dispute this.
It can also be taken of judicial notice that Bombo Radio Online is a national media outlet covering the entire country whose business is delivering news and that it has been a long-running institution for decades now.
If Hataw News Team relied completely its trust in Bombo Radio Online, can it be said to be guilty of reckless disregard of the falsity of the imputation written and published in Bombo Radio Online?
No, there was that presumption that the news presented by Bombo Radio Online was presumed to be reasonably true from the perspective of Hataw News Team.
Moreover, there was no name of Dr. Jeremias T. Rebueno that was written in the Bombo Radio Online report. So that Hataw News Team was not prompted to think twice and call the attention first of Dr. Jeremias T. Rebueno.
The act of recklessness occurs only when the source is doubtful yet the person concerned proceeded in using the news from that source.
In this case, there was no valid reason that can be pinpointed to conclude that Hataw News Team was not reasonable in giving faith in the report of Bombo Radio Online. If Dr. Rebueno did not file a case against Radyo Bombo, then the source that was the Radyo Bombo was not doubtful as to the truth thereof.
Neither Mr. Jeremias T. Rebueno offered any proof or argument to say it was unreasonable for Hataw News Team to believe outright in the representation of Bombo Radio Online.
In the face of lack of evidence from the accuser that it was not reasonable to believe in the report of Bombo Radio Online, there is no authority for any hearing officer to say it is unreasonable.
The reasonableness or unreasonableness to believe in Bombo Radio Online report about imputations against the hospital is a question that can only be answered by facts, not by the opinion of the investigating prosecutor. And the facts can only be established in the degree of probable cause if there were evidence presented.
On facts necessary to establish reasonability or un-reasonability, it is without dispute that Dr. Jeremias T. Rebueno did not submit any evidence to establish the facts needed to conclude that Hataw News Team indeed were unreasonable to give faith in the said report of Bombo Radio Online News.
Moreover, there is no proof offered to say that Dr. Jeremias T. Rebueno filed a case against Bombo Radio Online despite knowledge of the same.
With this truth that there was no evidence offered to establish necessary facts, it can never be said there is probable cause that Hataw News Team committed acts of reckless disregard of the falsity of the falsity of the report of Bombo Radio Online.
Applicability of Actual Malice Test
There is no doubt that Actual Malice Test applies in this case because of the ruling of the Office of the City Prosecutor that Dr. Jeremias T. Rebueno and the hospital have been widely known, although this ruling was misapplied on the issue of identifiability.
Dr. Rebueno did not submit evidence to disprove the allegations against the hospital.
As such, it cannot be said there is probable cause of malice.
The Court as well as the prosecutor is being reminded of Salonga vs Paño doctrine (G.R. No. L-59524 February 18, 1985) that commands that the prosecutor must not be allowed to file an information in court if the complainant did not submit evidence of any element of the crime because it is not allowed to hope that such evidence will pop out during the course of the trial.
WHEREFORE, it is prayed of the Honorable Court to dismiss the instant case for UTTER LACK OF PROBABLE CAUSE.
Other reliefs just and equitable are also prayed for. 3 August 2015. Manila for Ligao, Albay.
Causing Sabarre Castro Pelagio
Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila
BERTENI CATALUÑA CAUSING, CE
IBP No. 949537 / Manila IV / 06-01-2015
PTR No. 3834103 / Manila / 06-01-2015
Roll No. 60944 / MCLE No. IV -0007338 / 08-10-2012
DR. JEREMIAS T. REBUENO
Iraya, Sur, Oas, Albay
OFFICE OF THE ACTING PROVINCIAL PROSECUTOR OF ALBAY
PROSECUTOR JOSEPH R. RENIVA
Hall of Justice, Ligao City
Distance compelled the filing of the foregoing Reply to the Opposition of the Prosecutor on the Motion to Dismiss.
BERTENI CATALUÑA CAUSING, CE