Tuesday, February 23, 2016

My Plea vs Suspension as Lawyer Due to Blogs Criticizing Napoles

My Plea vs Suspension as Lawyer 
Due to Blogs Criticizing Napoles


Because the blogs I wrote that became the bases of the disbarment complaint filed by Janet Lim-Napoles were public anyway, and that because of these published blogs I have been recommended by the Board of Governors of the Integrated Bar of the Philippines (IBP) to be suspended for six (6) months from the practice of law, I am now waiving my right to confidentiality of the disbarment case against me so that I could make people understand more my positions in this issue.


So that I am now blogging my lengthy Motion for Reconsideration, which can be read below.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx


Republic of the Philippines
Integrated Bar of the Philippines
COMMISSION ON BAR DISCIPLINE
Julia Vargas Avenue, Pasig City




JANET LIM-NAPOLES,
                                         Complainant,


          - versus -                                             CBD Case No. 13-3908



ATTY. BERTENI C. CAUSING,
                                         Respondent.
x----------------------------------------------x




Motion for Reconsideration
(From Extended Resolution)




          The undersigned attorney, for himself as the respondent in this case, respectfully files this MOTION FOR RECONSIDERATION from the “Extended Resolution” dated 15 January 2016 signed for the Board of Governors by Ramon S. Esguerra, as Director of the Commission Bar Discipline, Integrated Bar of the Philippines.



The Timeliness



          On 2 February 2016 the undersigned received the said “Extended Resolution” and the attached “Report and Recommendation” signed and submitted by Investigating Commissioner Arsenio P. Adriano.


          Pursuant to the Resolution of the Supreme Court En Banc dated 31 July 2006 in Adm. Case No. 7055, entitled “Noriel J. Ramientas vs. Atty. Jocely P. Reyala,” the respondent has fifteen (15) days to file a motion for reconsideration from the resolution of the IBP Board of Governors.


          In this case, the fifteenth (15th) day falls on 17 February 2016.


          Hence, the filing of this Motion for Reconsideration today, 15 February 2016, is timely.



The Grounds



          With due respect, (a) misconduct does not apply in the case at bar because the act being complained about is not related at all to any work of a lawyer; (b) the two blogs subject matters of this case are not libel; and (c) the decision of the Board of Governors finding the undersigned guilty is not supported by any explanation or any law or jurisprudence.


The Discussions


No Misconduct


          By the inherent meaning of the word misconduct, it means that it refers to a conduct related to official functions.


          For a lawyer, it must be a conduct in relation to duties to clients, courts and quasi-judicial bodies where lawyers have to perform duties therefor, being a notary public, the community, and fellow lawyers.


          In the instant case, the acts of the undersigned that have been put in issue are acts that are completely foreign from the work of him as a lawyer and to his duties as a lawyer.


          In the first blog written by the undersigned, entitled “Meet girl in extremely-costly lifestyles using some of P10-B pork barrel of the people?”, found at this link, http://totocausing.blogspot.com/2013/07/meet-girl-in-extremely-costly.html, there was nothing that indicated there that the undersigned as the author identified himself as a lawyer.  


By thefact that the undersigned did not identify his name when he wrote that first blog, and did not also identify himself as a lawyer, the fellow lawyers of the undersigned cannot be put in bad light.  All the readers read the blog as an ordinary person’s blog, that’s all.   For sure, whatever intemperate rants there that may have been unpalatable were for sure generally and reasonably impressed upon readers that the same was written not by a lawyer.


FIRST BLOG.jpg
ANNEX “A” -- A screenshot of the first blog, showing no name of the author, nothing that says the author was a lawyer.


ANNEX “A” clearly shows that there is nothing that is read showing the name of Atty. BerteniCataluña Causing as the author.


And if there is no name of Atty. Berteni Cataluña Causing, then he was writing the same not as a lawyer but as an ordinary blogger.


So that it cannot be said the undersigned committed misconduct by violating the Code of Professional Responsibilities that mandate the obligations of all lawyers to fellow lawyers.


To stress, anywhere in that blog, there was nothing that suggested that the author was a lawyer.


In other words, there was no intention on the part of the undersigned to identify himself as a lawyer in writing that first blog about the daughter of Napoles.


Again, with this as a fact, it cannot be said that the public who had read the first blog cannot suspect or cannot get any clear idea that the author was using his status as a lawyer.


Again, the same proves that the undersigned did not act in relation to his duties to fellow lawyers that they may be put in bad light.


In the second blog, entitled “Napoles daughter 'legalized' 'stolen' billions; Celebrated expensive 21st b-day in Hollywood,” the undersigned even made it clearer that he was writing the second blog as a journalist and not as a lawyer.


          In the preliminary statement, the undersigned wrote:

          “(Note: The author writes this blog not as a lawyer but a journalist.  Being a sportswriter in the beginning to becoming a senior desk editor and the news editor of then popular People's Tonight tabloid, he cannot sway away from him, his blood as a journalist. Foremost of his reason in writing this is the dictate of a blood of a patriot, crying to see billions of pesos of the People's money being flaunted in a heartless extravagance for pleasure like what the daughter of Janet Lim-Napoles did in wearing a set of apparels worth at least One Million Pesos. The author is reasonable in concluding that the money used by this daughter is no less than the money filtered from the billions of pesos of pork barrels, Malampaya gas royalty fund, and Fertilizer Fund of Joc-jocBolante fame.)”


          This is supported by the second blog, which is marked hereto as ANNEX “B.”


SECOND BLOG.jpg
ANNEX “B” -- A screenshot of the second blog, showing no name of the author, nothing that says the author was a lawyer.


          So that if the undersigned made his stand clear that he was acting as a journalist, there was no possibility that he can commit misconduct by violating the duty to his fellow lawyers not to put their name in bad light.


          Therefore, even assuming without admitting that the same two blogs were libels, the undersigned cannot be said to have committed misconduct in relation to his obligation to his fellow lawyers.


Just to set the records straight, the undersigned did not commit any violation against his clients because the complainant and her daughter were not his clients.


Just to set the records straight, the undersigned did not commit any violation against the courts and the public.


          Discussions in
relation to Canons


Let this be discussed in relation to Canon 1, Rule 1.01, Canon 13, Rule 13.01, and Canon 11.


Canon 1 states: 


CANON 1 - A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and for legal processes.


Rule 1.01 states:


Rule 1.01: A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.


As will be expounded below that the two blogs were not libel, it cannot now be said that the undersigned engaged in unlawful conduct.


As correctly found and as being undisputed, all the facts presented in the two blogs are truthful being based on the photograph and captions as well as the video provided by Jeane Lim Napoles on her Tumblr account or admitted no less by Jeane Lim Napoles that she caused to have been made or created.


Ergo, there is no dispute that all those facts cited by the undersigned are true.   It is therefore not a dishonest conduct of the undersigned.


Now, it is clearer that the undersigned did not engage in deceitful act in the two blogs that he posted.


The undersigned did not tamper with the video and the photographs that he used in his blogs as these are true reproductions of the originals as posted by Jeane Lim Napoles.


The statements written as opinions out of those facts are clear to have not been libel so that these can never be unlawful, clear to have been truthful so that these can never constitute as dishonesty of the author, and clear to have not been deceitful because there has been employment of deception in the presentation of the same blogs.


Let us talk about Canon 13, particularly Rule 13.02.


But let us begin with Canon 13, that says:


CANON 13.A lawyer shall rely upon the merits of his cause and refrain from any impropriety which tends to influence, or gives the appearance or influencing the Court.


Rule 13.02 states:


Rule 13.02. A lawyer shall not make public statements in the mediaregarding a pending case tending to arouse public opinion foror against a party.


In this case, it can never be said that the undersigned attorney tended to arouse public opinion for or against a party.


This is because this does not apply on the undersigned attorney because he had no case for or against any of the Napoles family.


More so that it cannot apply because there was no cause yet at that time against Napoles.  Inquirernewspaper had just started its series of exposes against Napoles at that time.


So that it is erroneous to say that the undersigned wrote and published those blogs in order to arouse public opinion for or against a party.   The undersigned has had no ill motive to write just to put the Napoleses in more bad light.   The theme of corruption of pork barrels was too overwhelming at that time in order to have a room for personal objective.


The truth of the matter is that it cannot even be determined whether the blogs of the undersigned caused even to get attention from the public if only to know whether the blogs of the undersigned aroused public opinion.


For sure, it is a judicial notice to the IBP Board of Governors that the news about Napoles pork barrel scandal had been the daily meals over at ABS-CBN, GMA-7, TV-5 and even government television networks, the big radio stations such as DZRH, DZXL, BomboRadyo, DZMM, DZBB, the big newspapers such as Philippine Daily Inquirer, Philippine Star, Manila Bulletin, etc.


If ever there aroused public interest against the Napoles family, it was no other than the mainstream media and not the whimper generated by the blogs of the undersigned compared to these major media entities as the online media has never been still as effective as the mainstream’s.


So that it is grossly unfair for the IBP Board of Governors to make an opinion that the undersigned aroused public interest against Napoles when there is no basis at all.


Nevertheless, it cannot be avoided for the public to react heavily against the Napoleses considering the issues that turned out: stealing of pork barrel funds by billions of pesos as appearing in the investigation done by the National Bureau of Investigation (NBI), the Department of Justice (DOJ), and the Senate investigation.


In sum, there is no basis to convict the undersigned for the proven misdeeds of the Napoles family, including the conviction on the account of serious illegal detention suffered by witness BenhurLuy.


Let us now go to Canon 11, which says:


CANON 11. A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others.


This canon does not apply in the case at bar because there were no courts or judicial officers involved.


What were involved in this case were only blogs and nothing more.



No libel



          With all due respect to the IBP Board of Governors, there is no libel.


          It is erroneous for the IBP Board of Governors to conclude that the reliance by the undersigned on the doctrine of “fair commentaries on matters of public interest” is highly unavailing.


          What the IBP Board of Governors forgot was that while a discreditable imputation publicly made is deemed false because every man is presumed innocent until the guilt is judicially shown, IT DOES NOT APPLY WHEN THE IMPUTATION IS DIRECTED AGAINST A PUBLIC PERSON.


          Here, there is no issue.  They had become public figures at the time of the publication of the two blogs about Janet Lim Napoles and Jeane Lim Napoles, who is supposed to be the complainant here but who has not given authority to her mother.


          This is what was completely ignored or forgotten by the IBP Board of Governors.


          Then, the IBP Board of Governors made an UNWARRANTED conclusion that the undersigned to use as comments such words as “mother fucker,” “thick face”, and “must be fucked to prison.”


          It is wrong!


          The fair comments doctrine does not distinguish the comments from harsh to soft.  What is important is that the comments are based on facts established as true, at least reasonably.


          A reading of the entire blogs would lead one to say that it is even an understatement to say that the words “mother fucker”, “thick face” and “must be fucked to prison” are fair comments because they are at least statements of indignation and disgust.  It is not meant to defame, to connote a sexual act but an expression like “putang ina” that is a statement of disgust and not what its literal meanings says.


          In this case, it is very clear that “mother fucker” does not mean the literal fucker.  It meant the mother scammer of pork barrel funds and that her daughter must also be hauled off to prison.


          Now, let us cite the specific provision of Borjal vs CA in these hot comments, to wit:


To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander.  The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable.  In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition.  If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.

         
          Some other may opine that the opinions “mother fucker”, “thick face” and “must be fucked to prison” ventured into wild blue yonder.


          Besides, Borjal vs CA answered these sarcastic comments, as follows:


Concededly, petitioner Borjal may have gone overboard in the language employed describing the "organizer of the conference."  One is tempted to wonder if it was by some mischievous gambit that he would also dare test the limits of the "wild blue yonder" of free speech in this jurisdiction.  But no matter how intemperate or deprecatory the utterances appear to be, the privilege is not to be defeated nor rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York Times v. Sullivan, "[D]ebate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on the government and public officials.”



          Hence, it is now very clear: THAT IT IS ERRONEOUS FOR THE IBP BOARD OF GOVERNORS to rule that:

These fighting words (“mother fucker”, “thick face” and “must be fucked to prison”) and the public accusations made by the undersigned that the Napoleses pilfered public money to sustain their lavish lifestyle “cannot, by any stretch of imagination, be considered as fair comments on matters of public interest.”


Erroneous!


This erroneous conclusion is followed up with another illogical statement that says:“neither can Atty. Causing’s criminal imputations to complainant and her daughter be regarded as an expression of opinion based on established facts, precisely because complainant’s guilt and her alleged complicity in the controversial pork barrel scam are yet to be determined in the criminal proceedings initiated against her.”


          To these erroneous arguments of the IBP Board of Governors, the undersigned hereby reiterates this passage from Borjal:


But no matter how intemperate or deprecatory the utterances appear to be, the privilege is not to be defeated nor rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York Times v. Sullivan, "[D]ebate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on the government and public officials.”

         

`         The undersigned fully subscribes to the ruling of Investigating Commissioner Arsenio P. Adriano.


          It is because insisting on it means the IBP Board of Governors is going against the doctrine laid down by the Supreme Court in Borjal vs CA,   GR No. 126466, January 14, 1999.


          To the contrary, Investigating Commissioner Adriano correctly pointed out that there was no libel.


          Borjalvs CAsays:


But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in the FNCLT, would not qualify as a public figure, it does not necessarily follow that he could not validly be the subject of a public comment even if he was not a public official or at least a public figure, for he could be, as long as he was involved in a public issue.  If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved.   The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the participant's prior anonymity or notoriety.

There is no denying that the questioned articles dealt with matters of public interest.  A reading of the imputations of petitioner Borjal against respondent Wenceslao shows that all these necessarily bore upon the latter's official conduct and his moral and mental fitness as Executive Director of the FNCLT.  The nature and functions of his position which included solicitation of funds, dissemination of information about the FNCLT in order to generate interest in the conference, and the management and coordination of the various activities of the conference demanded from him utmost honesty, integrity and competence.  These are matters about which the public has the right to be informed, taking into account the very public character of the conference itself.


          In his conclusion, Commissioner Adriano stated that “the commentaries of the undersigned are fair comments concerning a public figure because Napoleses became as such after Janet Napoles was involved in the ‘pork barrel scam.’  Jeane also became a public figure.”


          Commissioner Adriano further stated:


              Their affluence and lavish lifestyle were shown on television nationwide for several weeks.  They became the subject of nationwide news on different broadsheets.   They became the subjects of indignation rallies attended by million Filipinos.


              Further, the matters they were involved in is a matter of public interest.  Certainly, the people have right to be informed of the extent of the ‘pork barrel scandal.’  Respondent opined that JeaneNapoles is enjoying the fruits of the ‘pork barrel scam’ involving her mother as the central figure.


The pictures of JeaneNapoles posted in the blogsite together with the articles indubitably show the truth of the comments of respondent, that JeaneNapoles is living a lavish lifestyle.


The comment or conclusion of respondent is reasonable and based on established facts – the finding of the COA, the finding of probable cause by the Department of Justice, the pictures shown in the blogsite, the nationwide news published on several broadsheets.  Thus --


“If the comment is an expression of opinion based on established fact, then it is immaterial that the opinion happens to be mistaken as long as it might reasonably be inferred from the facts. (Filipinas Broadcasting Network vs Ago, G.R. No. 141994, January 17, 2005.)



              How about the use of the words ‘motherfucker’ and ‘must be fucked to prison’?  Whatever respondent meant by these words, literal or figurative, they have an obscene connotation.  However, a reading of the entire comments of the respondent, these words were not intended to malign.   They were used to show indignation and anger.


              A Google search on the internet about ‘Napoles daughter’ revealed that there are other articles of JeaneNapoles like these shown in the blogsite of respondent.  Which came out first?  We can only guess.


              If malice cannot be presumed in a fair comment, the burden to prove it rests on the complainant.”

                    
Now, let the two blogs be analyzed by the rules of elements.


The elements of libel are: (a) defamatory imputation; (b) identification of the person against whom the defamatory imputation is ascribed; (c) publication of the defamatory imputation; and (d) malice.


In criminal law, all the members of the Board of Governors know that the absence of one element is sufficient to negate the existence of a crime.


And if there is no libel, then the undersigned attorney has no liability.


The undersigned argued that in this case, the complainant, Janet L. Napoles, who was the one who filed this complaint for disbarment on behalf of her daughter even without a written evidence of authority to file it on behalf of her daughter Jeane Lim Napoles, is undisputed to be already a public figure at the time of the publication online of the two blogs in question.


As such, the doctrine of qualifiedly privileged communication applies to remove the presumption of malice.


And if the presumption of malice is removed, the complaining offended party has the obligation to submit first proofs of actual malice.


Under the Borjal doctrine, it does not matter if the offended party is not a public figure. It is enough that the subject matters of the comment are in itself of public interest.


In the instant case, there is no issue that the subject matter of the blogs at bar, the pork barrel scam, have been of extreme public interest.


Hence, the same thing is the result. The instant blogs are of privileged communication.   And if these blogs are of privileged communication, the offended party is still required to submit first proof of actual malice.


Actual maliceis either publishing a defamatory imputation that is false and the publisher knew such falsity even before he or she published the same; or publishing a defamatory imputation with reckless disregard of the falsity of the imputation that by its nature should have required from the publisher to cross-checkthe truth or falsity of such imputation.


So, actual malice means asserting a falsity.


If we were to try actual malice test, the basic issue is whether the undersigned lied when he presented the photographs he copied from the Tumblr account of Jeane Lim Napoles, the contents of that photographs, the premise that Janet Lim Napoles stole from the Pork Barrels or the Priority Development Assistance Fund (PDAF) allotted to lawmakers, and the imputation that those million-peso-worth of apparels Jeane Lim Napoles as the bases of the opinions of the undersigned.


Did the undersigned attorney lie on those items?


Are those items false?


The Fair Comments Doctrine does not require absolute truth in the facts used by the opinion maker. 


It requires that at the time of making the opinions, the facts as bases were reasonably true.  It does not matter if those facts relied upon by the opinions turned out to be false after the publication.


With the fact that Inquirer and the National Bureau of Investigation (NBI) were already treating the revelations of the whistleblowers with serious concerns, it was sufficient for the respondent to reasonably rely on the statements published as true, particularly those statements that said that Janet Lim-Napoles faked documents in order for her to pocket PDAF funds in connivance with legislators. 


The dates of publication of the blogs and the dates when Inquirer came out with a series of news articles will show that the blogs here were published only after the Inquirer series was published.


          These means that the undersigned as a blogger had all the reasonable bases to rely on the reasonable truth of all his facts he used as bases of his opinions.


          And if he had all the reasonable bases to rely on the truth of the facts he used in making such comments, then THERE IS NO LIBEL.


          Now, let us see if the offended party, Jeane Lim Napoles, submitted proof of falsities of all these facts used by the undersigned, which are the photographs from tumbler, the captions of those photographs, the youtube video, the reports of the NBI published in Inquirer and other newspapers and TV and radio stations.


The mother who filed the case without authority from the daughter did not submit any evidence that all those are false.


          Now, if we look again at the fairness of the comments, as long as the comments are based on reasonable facts, the same is covered by the doctrine of qualifiedly-privileged communication.


          And to re-state, the fact that the comment was too defaming, obscene, profane and defaming does not matter as long as these are covered by the ambit of fair comments doctrine, the Borjal case explicitly prohibits liability, to wit:


But no matter how intemperate or deprecatory the utterances appear to be, the privilege is not to be defeated nor rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York Times v. Sullivan, "[D]ebate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on the government and public officials.”



Not supported
decision of IBP



          With due respect, a review of all the conclusions made by the IBP Board of Governors unfortunately not supported.


          First, the IBP Board of Governors said that the undersigned must be guilty of misconduct because the two blogs he wrote were libels.


          It is not supported. The contrary conclusion is firmly supported. 


          There is no proof of actual malice submitted.  There is no proof that the Napoleses are not public figures.  There is no proof that the “pork barrel scandal” is not a public interest. 


          Second, the IBP Board of Governors said that the opinions “mother fucker”, “thick face and “must be fucked to prison” made the undersigned liable for misconduct.


          This conclusion is not supported by the proof that the facts on which these opinions were based are not true. 


There is also no supporting law that punishes these kinds of opinions when based on reasonably true facts and directed against public figures.


Third, the IBP Board of Governors did not support with facts why the undersigned committed misconduct based on alleged violations of Rule 1.01, Rule 7.03, Canon 11 and Rule 13.01 of the Code of Professional Responsibility.


          In Rule 1.01, it is clearly argued above that there can never be unlawful conduct because there is no libel or any other crime committed by the posting of the two blogs.


          In Rule 7.03, it is clear that the writing of the blogs were done not in the practice of law as clearly explained above so that these blogs cannot be said to have reflected on the fitness of the undersigned to practice law or cannot be said to have behaved in a scandalous manner to the discredit of the legal profession.


          In Rule 13.02, as explained above, there is no support for the IBP to claim that the undersigned violated this provision, as clearly explained above.


          That is so because there is no proof submitted that there was a case pending where the undersigned was a counsel and the complainant was the adverse parties.


          In Canon 11, there was no judge, justice involved in the same two blogs.


          The IBP Board did not substantiate its conclusion why the undersigned committed misconduct.


          To the contrary, Commissioner Adriano is correct.




2 Blogs Merely Reacted
toInquirer Exposes



The fact remains that Inquirer and the National Bureau of Investigation (NBI) were already treating the revelations of the whistleblowers with serious concerns when the two blogs of the undersigned were written and posted online.


It is sufficient for the respondent to reasonably rely on the statements published as true, particularly those statements that said that Janet Lim-Napoles faked documents in order for her to pocket PDAF funds in connivance with legislators. 


The dates of publication of the blogs and the dates when Inquirer came out with a series of news articles will show that the blogs here were published only after the Inquirer series was published.


The first blog, “Meet girl in extremely-costly lifestyles using some of P10-B pork barrel of the people?,” was posted online on July 19, 2013.  It can be read at this website: http://totocausing.blogspot.com/2013/07/meet-girl-in-extremely-costly.html,


The second blog, “Napoles daughter 'legalized' 'stolen' billions; Celebrated expensive 21st b-day in Hollywood,” was posted online on July 30, 2013.  It can be read at this website: http://totocausing.blogspot.com/2013/07/napoles-daughter-legalized-stolen.html.


Now, the first story of Inquirer, “NBI probes P10-B scam,” was posted online on July 12, 2013.  It can be read at this website:  http://newsinfo.inquirer.net/443297/nbi-probes-p10-b-scam.


The second story of Inquirer, “I am not involved in any scam,” was posted online on July 13, 2013.  It can be read at this website: http://newsinfo.inquirer.net/443825/i-am-not-involved-in-any-scam.


The third story of Inquirer, “How P10-B racket works”, was posted online on July 14, 2013.  It can be read at this website: http://newsinfo.inquirer.net/444275/how-p10-b-racket-works.


The fourth story of Inquirer, “28 solons linked to scam,” was posted online on July 15, 2013.  It can be read at this website: http://newsinfo.inquirer.net/444693/28-solons-linked-to-scam.


The fifth story of Inquirer, “Malampaya fund lost P900M in JLN racket,” was posted online on July 16, 2013.  It can be read at this website: http://newsinfo.inquirer.net/445585/malampaya-fund-lost-p900m-in-jln-racket.


The sixth story of Inquirer, “Napoles: We control gov’t,” was posted online on July 17, 2013.  It can be read at this website: http://newsinfo.inquirer.net/446383/napoles-we-control-govt.


Additionally, it cannot be denied that Inquirer has been enjoying high reputation for believability in the news stories it publishes.

So that by the time the first blog of the respondent was published, the foundations of truth had already been solid for the Inquirer to publish an imputation that Janet Lim-Napoles stole money from the PDAF of lawmakers.





The Life
of the Respondent as a Journalist



          The respondent here has been a passionate lover of the freedom of expression, of speech, and of the press.


          To him, these freedoms are as sacrosanct as the Constitution treats them that no law shall abridge them.


          The respondent was an associate editor of Mindanao Varsitarian, the official organ of the students of Mindanao State University (MSU) – Marawi.


          The respondent has been a working journalist since 1989, after working for a few years in the engineering field, him being a civil engineer.


He was a sportswriter at first. He rose to become a deskman of the news desk of People’s Journal Tonight, which holds the record as the biggest circulated in the Philippines in the 1990s, selling 400,000 copies a day despite the fact that it was only sold within Metro Manila, being an afternoon newspaper.   


In 1998, he was promoted to the position of news editor no less than by the most legendary press freedom fighter of all time, Joe Burgos Jr.  


He left People’s Tonight in 2004 and became the managing editor of Kabayan English tabloid that was closed due to brushes with the Arroyo administration.   


So that it is easy to see that the blood of a journalist and opinion writer cannot be separated from him.    



The Constitution Does Not Reduce
Right of Press Freedom for Lawyers



It is in this context that the two controversial blogs involved in this case were written and published online.  It is therefore not connected to his being a lawyer.


          The constitutional right to free press and expression is not made an inch less just because it is the lawyer speaking.


          There is simply no constitutional provision that shortens the right if it were a lawyer who will speak.


          To reiterate, the blog articles being referred to in this Complaint for Disbarment are all about freedom of expression, of speech, and of the press. 


And if these are about these sacred rights that are among the highest in the tiers of human rights, how else could it be a source of a cause of action for disbarment if there is no act of lying on the part of a lawyer-blogger? 


Libel, may be possible. But disbarment, no way.


A disbarment complaint is an administrative case for lawyers and it must apply on acts that are directly connected with the duties, responsibilities, and standing of a person who is a lawyer.


A lawyer may be guilty of homicide. But his conviction for that can never be considered a ground for disbarment or other minor disciplinary sanctions: even if he violated the law, the law on “thou shalt not kill.”


A lawyer may be guilty of rebellion.  But this can never be fathomed as a ground for disbarment.


A lawyer may be guilty of any traffic violation or any reckless imprudence.  But this can never be thought of as sufficient to disbar him.
         

A lawyer may be guilty of slander by deed or otherwise.  But this can hardly fit as a ground for disbarment.


          A lawyer may be guilty of libel.  But any justification would be hard to be found to disbar him for that.


          All these the respondent says without fear of contradiction that the instant complaint for disbarment must be barred.


          In gist, the statements above posit that if the lawyer-blogger did not commit any act of lying or that there is no proof that he lied, there can never be a room for disbarment or lesser disciplinary sanction.


Do not be too thin-skinned



In this case, the Supreme Court, through the genius of Justice Malcolm, declared that it is a right of the people to make opinions on matters of public interest.


Said Bustos:


The interest of society and the maintenance of good government demand a full discussion of public affairs. Completely liberty to commenton 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 the 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 of 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 well considered cases of Wason vs. Walter, 4 L. R. 4 Q. B., 73; Seymour vs. Butterworth, 3F. and F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1)


Now, even if there were errors of facts in the recitals in the blogs, they clearly appear to be in ignominy: they cannot be seen.


In Borjal vs Court of Appeals, errors in gathering of facts and of publishing them do not constitute libel.  It says:


Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice.   Errors or misstatements are inevitable in any scheme of truly free expression and debate.     Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language.     There must be some room for misstatement of fact as well as for misjudgment.    Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy.   In Bulletin Publishing Corp. v. Noel  we held -

A newspaper especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community.


Yes, the respondent may have been too uninhibited, robust and wide open in expressing his opinions of Janet Lim Napoles and of her youngest daughter.


Nevertheless, US Supreme Court Justice Brennan, in the case of New York Times vs Sullivan, 376 US 254 (1964), says that even if opinions used in debates were too harsh, it cannot be a justification to say it was libel.  Brennan wrote:  “[D]ebate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on the government and public officials.”


So that if it is really to be examined, it is very clear that there is no libel.


And for Napoles to insist otherwise, it is better for her to wait first the outcome of the accompanying libel complaint she filed at the same time against this respondent before the Office of the City Prosecutor of Taguig City.




Presumption of Innocence Applies
to Criminal Law and Not to Press Freedom



          One reason why the presumption of innocence in criminal law cannot be demanded in the publication of newspapers is that it does not apply to the exercise of press freedom.

         
Lest it be mistaken, there is no such a thing as “trial by publicity.”  It is only an invention of those who are guilty who found themselves being subject matters of news stories.


In short, it is only a defense mechanism to invoke such.


          Moreover, there is no such a thing as a crime or an administrative violation called “trial by publicity.”


          Nullumcrimennullapoena sine lege.  It is not a crime when there is no law that punishes it.


          And to repeat, this is not a criminal proceeding where the accused or a respondent must be presumed innocent until proven otherwise.


          In publication, there is no such a thing as “convicted by publicity.”


          If the respondent used Blogspot as his venue for his blog stories, there is nothing that prohibits Janet Lim Napoles from using the same Blogspot to publish her defenses and lay down her proofs that all the accusations against her are false.


          While she is not prohibited and yet not availing of the tools of defenses, the presumption is she is ADMITTING SHE IS GUILTY.


          The freedom to reply in the internet is UNLIMITED.  She can post all over walls of friends and hers so that the whole world of Facebook knows that she is innocent of the charges hurled against them.


          To stress: The Constitutional right to be presumed innocent APPLIES ONLY TO CRIMINAL PROCEEDINGS, NOT IN PUBLICATIONS OF STORIES AS EXERCISES OF PRESS FREEDOM.


          So that it is also too presumptuous of the complainant to state that his intentions in blogging were to rally the people to believe in his baseless allegations to join him in perceiving the complainant and her family as “bloodsuckers” of the Philippine government.


          It is equally presumptuous for the complainant to state that it was an attempt on the part of the respondent to put an unwarranted hype and pressure for the initiation of a case against the complainant.


          For the complainant to say this is to say that Secretary De Lima and the NBI are acting under the direct control of the respondent.


          Oh my God.  How can it be possible for the respondent to dictate on De Lima and the NBI?



The Prayer



          WHEREFORE, it is prayed of the Honorable Board of Governors of the IBP to reverse its Extended Resolution and recommend that the instant complaint be DISMISSED.


          Other reliefs just and equitable are also prayed for.  16February 2016, Manila for Pasig City.

Causing SabarreCastro Pelagio
Unit 1, 2368 JB Roxas St. corner Leon Guinto St., Malate, Manila
Emails: totocausing@yahoo.comberteni.causing@gmail.com; Tel: +632-3105521


By:

BERTENI CATALUÑA CAUSING, CE
IBP No. 972694/ 04-12-2015 / Manila IV
PTR No. 4889732 / 04-12-2015 / Manila
Roll No. 60944
MCLE No. IV – 0007338 issued 10 August 2012
(Valid from 15 April 2013 until 14 April 2016)
MCLE No. V – 0013036 issued 13 January 2016
(Valid from 15 April 2016 until 14 April 2019)
Cc:

JANET LIM-NAPOLES
Correctional Rd. corner
BagongBuhay, Mandaluyong City

EXPLANATION

          For lack of time and distance, the above motion is served on the other party by mail.


BERTENI CATALUÑA CAUSING, CE

x-------------------------------------x
Republic of the Philippines    )
City of Manila                          )SC

Verification

          I, BERTENI CATALUÑA CAUSING, of legal age, Filipino, whose office address is Unit 1, No. 2368 Leon Guinto St. corner JB Roxas St., Malate, Manila, do hereby depose and state:

1.    I wrote the foregoing Motion for Reconsideration;
2.    I read and understood the same; and
3.    All the allegations therein are true of my personal knowledge and based on authentic documents.

IN WITNESS WHEREOF, I sign this Verification on 16 February 2016 in the City of Manila.



BERTENI CATALUÑA CAUSING

          SUBSCRIBED AND SWORN TO BEFORE ME on 16 February 2016  in Manila, affiant exhibiting his IBP ID No. 60944.

Doc. No.:    ___;
Page No.:    ___;
Book No.:   ___;

Series of 2016.
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