Weird libel case okayed by fiscal, court in Albay
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:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Republic
of the Philippines
Fifth
Judicial Region
Regional Trial Court
Ligao City
Branch 14
PEOPLE
OF THE PHILIPPINES,
Complainant.
- versus - Crim. Case
No. 7437
For:
LIBEL
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,
Accused.
x---------------------------------------------------x
Reply
(Motion to Dismiss
on
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.
The Prayer
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
By:
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
Cc:
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
EXPLANATION
Distance compelled the filing of the
foregoing Reply to the Opposition of the Prosecutor on the Motion to Dismiss.
BERTENI CATALUÑA CAUSING, CE
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