Monday, March 27, 2006

SC MONITOR: SC defines fair and true report in PJI case

SC Monitor is a new section of La Vida Lawyer where we will feature noted recent Supreme Court decisions published in the Supreme Court website, .

G.R. No. 143372 December 13, 2005 (ABRIDGED. A complete copy of the decision is found here.

J. MINITA V. CHICO-NAZARIO wrote the opinion of the Court.


On 30 September 1990, the following news item appeared in the People’s Journal, a tabloid of general circulation:

"Swiss Shoots Neighbors’ Pets

RESIDENTS of a subdivision in Parañaque have asked the Bureau of Immigration to deport a Swiss who allegedly shoots wayward neighbors’ pets that he finds in his domain.

The BF Homes residents through lawyer Atty. Efren Angara complained that the deportation of Francis Thoenen, of 10 Calcutta BF Homes Phase III, could help “prevent the recurrence of such incident in the future.”

Angara explained that house owners could not control their dogs and cats when they slip out of their dwellings unnoticed.

An alleged confrontation between Thoenen and the owner of a pet he shot recently threatens to exacerbate the problem, Angara said.

Cristina Lee"

The subject of this article, Francis Thoenen, is a retired engineer permanently residing in this country with his Filipina wife and their children. Claiming that the report was false and defamatory, and that the petitioners acted irresponsibly in failing to verify the truth of the same prior to publication, he filed a civil case for damages against herein petitioners Philippine Journalists, Inc., Zacarias Nuguid, Jr., its publisher, and reporter Cristina Lee.

The principal source of the article was a letter by a certain Atty. Efren Angara addressed to Commissioner Andrea Domingo of the Commission on Immigration and Deportation (CID, now Bureau of Immigration), which states:

Dear Madame:

We would like to request your office to verify the true status/authenticity of the residency in the Philippines of a foreign national (a Swiss) by the name of Francis Thoenen who is presently residing at No. 10 Calcuta cor. Beirut Street, BF Homes (PH. III), Parañaque, Metro Manila. I received (sic) complaint from my clients residing around his vicinity that this foreigner had (sic) been causing troubles ever since he showed up. He is too meticulous and had (sic) been shooting dogs and cats passing his house wall everytime.

Such act which (sic) is unacceptable to the owners especially if inspite (sic) of control their pets slips (sic) out unnoticed. A confrontation between him and the owner of the dog he shoot, (sic) already occurred last time. In some instances this guy had been always driving his car barbarously inside the subdivision with children playing around (sic) the street. Before my clients petitioned themselves with the endorsement of the Homeowners Association and filed to your office for deportation we’re respectfully seeking your assistance to investigate this alien to prevent further incident occurrence (sic) in the future. He should not be allowed to dominate the citizens of this country.

Very truly yours,

Atty. Efren B. Angara

The petitioners claim that Lee, as the reporter assigned to cover news events in the CID, acquired a copy of the above letter from a trusted source in the CID’s Intelligence Division. They claimed to “have reasonable grounds to believe in the truth and veracity of the information derived (from their) sources.”

It was proven at trial that the news article contained several inaccuracies. The headline, which categorically stated that the subject of the article engaged in the practice of shooting pets, was untrue.[5] Moreover, it is immediately apparent from a comparison between the above letter and the news item in question that while the letter is a mere request for verification of Thoenen’s status, Lee wrote that residents of BF Homes had “asked the Bureau of Immigration to deport a Swiss who allegedly shoots neighbors’ pets.” No complaints had in fact been lodged against him by any of the BF Homeowners,[6] nor had any pending deportation proceedings been initiated against him in the Bureau of Immigration.

Thoenen also submitted a Certification from the Office of the Bar Confidant that there was no lawyer in its rolls by the name of Efren Angara, earlier cited by petitioner Lee as the author of the letter on which she based her article. Finally, the trial also showed that despite the fact that respondent’s address was indicated in the letter, Cristina Lee made no efforts to contact either him or the purported letter-writer, Atty. Angara.


For the reasons stated below, we hold that the constitutional privilege granted under the freedom of speech and the press against liability for damages does not extend to the petitioners in this case.

“The right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” [19]

Libel is not protected speech. An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead.

As a general rule, malice is presumed. Article 354 of the Revised Penal Code states:

ART. 354. Requirement of Publicity. - Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

The article is not a privileged communication. We first discussed the freedom of speech and press and assembly vis-a-vis the laws on libel and slander in the groundbreaking case of US v. Bustos, where we applied the prevailing English and American jurisprudence to the effect that:

"The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good? Rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary - to any or all the agencies of Government - public opinion should be the constant source of liberty and democracy. (citations omitted)

The demand to protect public opinion for the welfare of society and the orderly administration of government inevitably lead to the adoption of the doctrine of privileged communication. “A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely privileged communications are those which are not actionable even if the author has acted in bad faith. An example is found in Sec. 11, Art. VI of the 1987 Constitution which exempts a member of Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly privileged communications containing defamatory imputations are not actionable unless found to have been made without good intention or justifiable motive. To this genre belong ‘private communications’ and ‘fair and true report without any comments or remarks.’”

The appellate court correctly ruled that the petitioners’ story is not privileged in character, for it is neither “private communication” nor a fair and true report without any comments or remarks.

US v. Bustos defined the concept of private communication thus: “A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained criminatory matter which without this privilege would be slanderous and actionable. A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board having some interest or duty in the matter.”

This defense is unavailing to petitioners. In Daez v. Court of Appeals[26] we held that:

As a rule, it is the right and duty of a citizen to make a complaint of any misconduct on the part of public officials, which comes to his notice, to those charged with supervision over them. Such a communication is qualifiedly privileged and the author is not guilty of libel. The rule on privilege, however, imposes an additional requirement. Such complaints should be addressed solely to some official having jurisdiction to inquire into the charges, or power to redress the grievance or has some duty to perform or interest in connection therewith. (emphasis supplied)

In the instant case, even if we assume that the letter written by the spurious Atty. Angara is privileged communication, it lost its character as such when the matter was published in the newspaper and circulated among the general population. A written letter containing libelous matter cannot be classified as privileged when it is published and circulated in public,[27] which was what the petitioners did in this case.

Neither is the news item a fair and true report without any comments or remarks of any judicial, legislative or other official proceedings; there is in fact no proceeding to speak of. Nor is the article related to any act performed by public officers in the exercise of their functions, for it concerns only false imputations against Thoenen, a private individual seeking a quiet life.

The petitioners also claim to have made the report out of a “social and moral duty to inform the public on matters of general interest.”

In Borjal v. Court of Appeals, we stated that “the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. We stated that the doctrine of fair commentaries 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.”

Again, this argument is unavailing to the petitioners. As we said, the respondent is a private individual, and not a public official or public figure. We are persuaded by the reasoning of the United States Supreme Court in Gertz v. Robert Welch, Inc.,[29] that a newspaper or broadcaster publishing defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim a constitutional privilege against liability, for injury inflicted, even if the falsehood arose in a discussion of public interest.[30]

Having established that the article cannot be considered as privileged communication, malice is therefore presumed, and the fourth requisite for the imputation of libel to attach to the petitioners in this case is met. The news article is therefore defamatory and is not within the realm of protected speech. There is no longer a need to discuss the other assignment of errors, save for the amount of damages to which respondent is entitled.

In Policarpio v. Manila Times Publishing Co., Inc., we awarded damages where the defendants deliberately presented a private individual in a worse light that what she actually was, and where other factual errors were not prevented although defendants had the means to ascertain the veracity of their report. Such are the facts obtaining here.

We must point out that Lee’s brief news item contained falsehoods on two levels. On its face, her statement that residents of BF Homes had “asked the Bureau of Immigration to deport a Swiss who allegedly shoots neighbors’ pets” is patently untrue since the letter of the spurious Atty. Angara was a mere request for verification of Thoenen’s status as a foreign resident. Lee’s article, moreover, is also untrue, in that the events she reported never happened. The respondent had never shot any of his neighbors’ pets, no complaints had been lodged against him by his neighbors, and no deportation proceedings had been initiated against him. Worse, the author of Lee’s main source of information, Atty. Efren Angara, apparently either does not exist, or is not a lawyer. Petitioner Lee would have been enlightened on substantially all these matters had she but tried to contact either Angara or Thoenen.

Although it has been stressed that a newspaper “should not be held to account to a point of suppression for honest mistakes, or imperfection in the choice of words,” even the most liberal view of free speech has never countenanced the publication of falsehoods, especially the persistent and unmitigated dissemination of patent lies.[ “There is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate.” The use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality… The knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection” (citations omitted).

The legitimate state interest underlying the law of libel is the compensation of the individuals for the harm inflicted upon them by defamatory falsehood. After all, the individual’s right to protection of his own good name “reflects no more than our basic concept of the essential dignity and worth of every human being – a concept at the root of any decent system of ordered liberty.”[36]

The appellate court awarded Thoenen moral damages of P200,000.00, exemplary damages of P50,000.00 and legal fees of P30,000.00, to be borne jointly and severally by the herein petitioners. In Guevarra v. Almario, we noted that the damages in a libel case must depend upon the facts of the particular case and the sound discretion of the court, although appellate courts were “more likely to reduce damages for libel than to increase them.” So it is in this case.

WHEREFORE, the Decision of the Court of Appeals of 17 January 2000 reversing the Decision of the Regional Trial Court, Branch 62, Makati City, of 31 August 1994 is hereby AFFIRMED, subject to the modification that petitioners are ordered to pay, jointly and severally, moral damages in the sum of P100,000.00, exemplary damages of P30,000.00, and legal fees of P20,000.00. No costs.


Wednesday, March 15, 2006

DOJ charges are ridiculous -PCIJ

PCIJ Statement 

IN an interview with ANC this afternoon, Justice Secretary Raul Gonzalez said that that the government is monitoring the Philippine Center for Investigative Journalism (PCIJ). “It is very clear,” he said, “they have been posting in their website many things I consider as inciting to sedition. We are studying them.”

“For example,” he added, “ the fact that it kept on posting the matters in the Garci tape is violative of [Republic Act] 4200 (the anti-wiretapping law).”

This charge is ridiculous. In June 2005, the PCIJ posted the three-hour audio recording of the alleged phone conversations of former elections commissioner Virgilio Garcillano. Our intent was to inform the public of the contents of those conversations so that they can make an independent judgment on the allegations of election fraud. The recording was clearly a matter of public interest, and it was this interest that we were upholding.

How can we be accused of inciting to sedition and of violating the anti-wiretapping law by posting the audio files of a tape that has been played in Congress? Radio and television stations have played portions of the tape as well. Press Secretary Ignacio Bunye even played and presented to the media a different version of the supposedly wiretapped recording.  Moreover, that recording is posted in about a dozen other websites and blogs.

Yet the Justice Secretary has prejudged our case and made a conclusion without giving the PCIJ the benefit of due process. How can a Justice Secretary do that?

As far as we know, the Bill of Rights and the Rules of Court are still in place. We are presumed innocent until proven guilty. We cannot be pronounced guilty on his mere say so.

I would like to ask the Justice Secretary: When the PCIJ published its exposés on the unexplained wealth and mansions of former President Joseph Estrada in 2001, were we also inciting to sedition? Our reports were used in the impeachment charge against  Estrada. Were we inciting to sedition then? If some people went to Edsa after reading our reports, was that inciting to sedition?

If it is, then any legitimate piece of investigative journalism is seditious. Then anything that comes out in the media today can be construed to be seditious.

Secretary Gonzalez intends to intimidate the PCIJ. That is not his job. The job of the justice system is to provide an enabling environment that allows free and responsible journalism to be practiced. It is to protect journalists like ourselves from harassment suits and ridiculous charges. Instead he has become the purveyor of these charges. We are so very disappointed.

Sheila S. Coronel

15 March 2006

Tuesday, March 14, 2006


Image hotlinked from Philippine Commentary 

Sol-Gen Alfredo Benipayo resigns reports that Solicitor General Alfredo Benipayo has tendered his resignation effective April 1, 2006, thus ending his long and distinguished career in government. Sec. Raul Gonzalez, of the Department of Justice said the reason for the resignation was Benipayo's desire to go back to private life. See story here.

Predictably, the Palace will downplay this major setback, in spite of the fact that it has a number "must-win" cases that are pending with the Supreme Court, which cases Sol-Gen Benipayo would leave behind.

But we cannot help but speculate about the reason for the sudden decision of Sol-Gen Benipayo to resign. Was he privately castigated for having admitted to the press that the police erroneously implemented Proc. No. 1017? Does he think his task of winning those "must-win" cases is impossible? Is he sick and tired of always defending the wrong side? is one plus one equals two? Was he asked to leave so a more trusted Palace protege (i.e., Sigma Rhoan, Rotarian, or Ateneo law classmate of you know who) could take his place? Yet, no matter how hard the Palace will try to unmate Benipayo's resignation with the ugliness of the cases it has thrown to the Sol-Gen's door, considering that this is a precarious situation for the Government to have its chief counsel walking out, people will think that this is a case of a lawyer dumping his impossible client.

Viva Benipayo!

Wednesday, March 08, 2006

Ridiculous Propaganda

Thanks to Rizalist who gave the link to the video of the Government-produced clip on Proc. No. 1017. I fell asleep midway into the clip, and then I was jolted by a soundbyte that sort of theorized that there was an understanding or alliance between the Leftists and Rightists, because Atty. JV Bautista and Atty. Argee Guevarra were seen together with Col. Querubin.  

I couldn't stop myself from laughing at the proposition, as I know Argee Guevarra as far back as the 80s when we were "smiling" activists in Ateneo.  and he was already investing his savings in the stock market. Argee even went around with teeth braces in La Salle Greenhills. In college, Argee made his mark in poetry by self-publishing his own erotic poems and consigning them in bookstores.  Argee became a lawyer in 1996, even if in the middle of his bar review he would often stop and write a poem instead. As a lawyer. Argee had a good run of famous cases including that of Ador Mawanay and the victims of the multitel scam
For many years. Argee has been writing a column for Businessworld, a capitalist tool most definitely, and is credited for having invented the concept of "Pogi Points" in one of his most memorable column pieces back in the 90's. 

While Argee appears to be a member of Sanlakas, the party-list group that lost in the last elections, this does not mean he represents the sentiments of Sanlakas or even the extreme or moderate left in the political spectrum. If the military did its intelligence work properly, it would have found out that Argee's protest actions and Sanlakas affiliations are more of a cover for his bourgoise sentiments and inclinations. (50 Pogi Points for that Argee for being a politically aware yuppie.)So if you see Col. Querubin and Argee Guevarra together, you could conclude nothing, except perhaps that Argee may have found a new client for his law firm or is just making more Pogi Points for himself.

Tuesday, March 07, 2006


Alan Paguia opines that, while GMA has lifted the declaration of state of emergency, she still has the country under a state of martial law. The reason for this is because she has not recalled the provision on Proc. No. 1017 in which she mandates the members of the armed forces to maintain law and order, prevent or suppress lawless iolence and to enforce obedience to all the laws and decrees. Rizalist publishes the opinion in this link

Thursday, March 02, 2006

Rep. Teddy Boy Locsin on Proc. 1017

The bright light from the abyss called the Philppine House of Representatives speaks on Proc. No. 1017, here.

"  X X X She (GMA) cannot call out the armed forces to settle political or personal scores, such as raiding the Tribune for attacking her day in and day out, or escape accountability for the misdeeds of her officials, such as Joc-Joc Bolante. To paraphrase Joker P. Arroyo, there can never be an emergency power to conceal crimes or suppress the truth."

" X X X Call the situation what she pleases, but there are things she cannot do under a proclamation of national emergency.

"One is enforcing a warrant of arrest that is 20 years old on a charge that has nothing to do with the current emergency and which history has changed into a piece of flattery. This habit of dredging up stale warrants is worse than illegal, it is baduy, an example of what is called in the vernacular, utak sarhento.

"Two, she cannot cite as the root of the emergency the exercise of fundamental freedoms like speech, press and peaceful assembly. Not even if these freedoms are exercised to discredit her. National emergencies are proclaimed precisely to protect these essential democratic features, never to suppress them, especially in the context of EO 464 stopping officials from testifying, possibly on what are alleged to be her administration's misdeeds. X X X"

" X X X And while she can invoke Article 12, Sec. 17, to take over public utilities when they create or exacerbate an emergency, such as jacking up oil and energy prices, she needs both an act of Congress and a better motive than the dislike that the owners of these utilities have for her. There is no power anywhere in law or the Constitution to compel affection, loyalty, let alone cooperation.  X X X"