Tuesday, June 10, 2008

Getting the facts right

Getting the facts right


FRONTLINE
Ninez Cacho-Olivares

06/10/2008

One can expect Gloria’s mouthpiece, Toting Bunye, to revel in my libel conviction, which is on appeal and the harsh jail sentence, plus fine of P4 thousand, plus actual and moral damages in the amount of some P5 million and P33 thousand.

After all, he and Gloria jumped for joy when F. Arthur Villaraza filed 48 counts of libel that were rejected for consolidation by the state prosecutors and the lawyers of Villaraza. Besides, Bunye himself has close ties with the law firm, since his daughter works for that firm and in fact became the spokesman of the First Gentleman in the early days.

Besides, Bunye really had no call to pontificate about getting the facts right, considering that he not only gave out a completely false report and showed a clear and reckless disregard for the truth when he came up in a press conference on the “Hello Garci” tapes, but even also manufactured evidence! And he dares speak of getting the facts right relating to my case?

But for Chay Hofilena and a Newsbreak magazine writer to say that journalists must get their facts right and to verify the report, obviously referring to my report, perhaps shows just how they judge without getting all the facts right and without having clear grasp of what the law says on libel cases, as it takes the version of the Villaraza version, which was adopted by RTC judge Winlove Dumayas.

Chay Hofilena and Newsbreak, and on record described the Firm as “well-connected” and in an article entitled Firmly in Power: The Villaraza law firm’s tentacles extend to the judiciary and the executive. Critics are up in arms.” If she believes that one should be careful in writing about private persons why did she write about the firm? Obviously because they could not have been private but public figures.

What my article said about Villaraza was nothing compared to that Newsbreak article. In my piece, only once was Villaraza mentioned, and referred to as the President’s personal lawyer, which certainly was no defamatory at all. The other instance where the word Villaraza was mentioned was in the sentence saying: “With all eyes focused on the Carpio-Villaraza-Cruz combine and its hold on the Arroyo administraton’s legal arena, as well as its pervasive power and influence in the country’s judiciary.” This statement is libelous, malicious and defamatory?

As for the Newsbreak writer Carmela Fonbuena, she claimed I did not verify the report, saying that the deputy ombudsman in Luzon, Vic Fernandez did not work in the Firm.

In the first place, Newsbreak did not get my side of the story in that report. In the second place, if Fonbuena read the memorandum submitted by my lawyer, Alex Medina of Pecabar, copies of which were given to the media on the day of the conviction, or even got hold of the court transcript of my testimony, she would have found out that I had testified to the fact that I never said Vic Fernandez, the deputy Ombudsman, was a partner of the Villaraza law firm but I did write he was connected with the firm and clarified in court that being connected to the firm meant he was a satellite lawyer. This was not rebutted by the lawyers.

In truth, the firm does have satellite lawyers. Two counsels I had approached earlier to handle my libel case begged off, saying they can’t touch this case, as they also work from time to time with the Firm on certain cases.

It is also on record, something which Dumayas and the junior lawyers of the Firm seem to ignore is the fact that I had testified to all this and that my testimony was not rebutted, as the Firm’s lawyers did not cross-examine me.

On the matter of my not having verified the statements made in my report, why on earth should I bother to verify with Villaraza or his firm when the story was not about him, or the Firm but on the former lawyers of the firm who were now in the Ombudsman’s office and in the executive branch?

This is something that should be gotten right. The information lodged against me does not charge me of libel against the Villaraza and Angcangco law offices. The private complainant in this instance is Villaraza, not the firm. And that article was certainly not about Villaraza and the firm but about their former lawyers and how the AEDC complaint was being handled. Section 6, Rule 110 of the Rules of Court were violated by the judge and the lawyers of the complainant.

No matter what Dumayas says in his decision, malice, actual and presumed, was never proved and we will prove that it was never established and proved.

Neal Cruz, this is for you: The high court has defined “actual malice” and malice in fact’ as an act that may be shown by proof of ill-will, hatred or “purpose to injure.” This was never proved by Villaraza.

I could not have been held liable civilly for actual and moral damages because the prosecution failed to adduce any admissible evidence to prove actual or compensatory damages.

The document shown by the prosecution was hearsay, given the fact that the person who prepared it (Villaraza) did not testify in court.

All this was brought out in court, but clearly ignored — for inexplicable reasons by Dumayas.

But that’s not the end of it because the case goes all the way to the appellate court and the Supreme Court.

In the meantime, I got my facts right, and those who bought the Villaraza lawyers spiel, should look at themselves first, before they judge and write.

6 comments:

Aries said...

As I See It
The many pitfalls of libel


By Neal Cruz
Philippine Daily Inquirer
First Posted 01:05:00 06/09/2008


MANILA, Philippines - This will not sit well with the press in general, but I do not think decriminalizing libel is a good idea. With the recent conviction of Daily Tribune publisher-editor in chief Ninez Cacho-Olivares for libel, there is again a clamor from press groups to decriminalize libel and some members of Congress trying to curry favor with journalists, especially with elections coming up, may do just that.

Chief Justice Reynato Puno has already issued a circular telling judges that in imposing penalties on those convicted of libel, preference should be for the imposition of a fine rather than imprisonment. (Nevertheless, Judge Winlove M. Dumayas of the Makati RTC sentenced Olivares to a prison term of from six months to two years, 10 months and 40 days and to pay a fine of P4,000 and to pay the complainants the sum of P33,732 as actual damages and P5 million in moral damages. She said the libel on complainants “was calculated and intentional” and that she did not “verify her false claims.” “A mere fine would depreciate the seriousness of the offense,” she said.)

Puno’s good intention is appreciated but I think he should look at some of the scurrilous items appearing in some tabloids (I will show him some samples if he wants) to see the situation more clearly. The broadsheets do not generally libel people intentionally but the tabloids, especially those circulated in the Bureau of Customs, are something else. Some of their writers, editors and publishers deserve to be clamped in jail and the key thrown away. You will cringe at what they are writing and ask: “Can they really do this?”

Unfortunately, we cannot have one law for tabloids and another for broadsheets. And I think the Puno circular and the decriminalization movement have emboldened some tabloid denizens (after all, the fine ranges only from P200 to P6,000; that hardly discourages libel) so that they are now running amuck. We cannot have that behavior in a decent society.

I feel sorry for Ninez and I think it should not happen to a fighting journalist. I read Judge Dumayas’ decision in full as well as a backgrounder on the whole case and I will discuss later why the judge convicted her. First I would like to warn fellow journalists of the pitfalls of libel. Many of them don’t understand the libel law. Some tabloids list “legal counsels” in their editorial boxes, but even these lawyers don’t fully understand the details of the libel law.

There are four elements of libel:

1. the imputation of a discreditable act or condition on a person;

2. publication of the imputation;

3. identity of the person defamed; and

4. existence of malice.

Existence of the first three elements is present when a complaint for libel is filed.

It is only malice that has to be proven, and here is where many journalists make a mistake.

There are two types of malice: malice in law or presumed malice, and malice in fact or actual malice. Malice is presumed the moment you defame anybody. Your defense to that is to prove that you have a good reason for publishing the imputation, such as it is for the public good. Failing that, you are as good as convicted.

But even after proving justifiable reason for the story, the complainant can still prove actual malice, meaning you bear ill-will against him or are motivated by revenge, which are both hard to prove. And here is where most journalists have a false sense of security. I don’t know him or I don’t have any ill will against him, how can I have malice? they say. Wrong.

Failure to check on the truth of an allegation is interpreted by the courts as malice. And this is a common mistake of journalists in a hurry. Malice is present when it is shown that the author of the libelous item made such remarks with knowledge that it was false or with reckless disregard of whether it was false or not. Failure to check on the veracity of an allegation is reckless disregard and is interpreted as malice.

Another common error is that public officials and public figures are fair game; the public has the right to know what they are doing. Public officials are those who are elected or appointed to public positions; public figures are those who voluntarily thrust themselves into the public eye, such as movie stars, entertainers, society matrons, prominent businessmen, artists, athletes, etc. But it does not mean that anybody who attracts public attention is a public figure if he did not voluntarily thrust himself into the limelight. He is a private individual who has private rights and it is very risky to defame him.

Still another error is “fair comment.” Many believe that any column is fair comment.

But the Supreme Court laid down the guidelines for a fair comment on matters of public interest:

“Comment which is true or which, if false, expresses the real opinion of the author, such opinion having been formed with a reasonable degree of care and on reasonable grounds.” An opinion must be based on fact. A columnist cannot make a false accusation and say “that is my opinion.”

This is where the judge condemned Ninez. Dumayas said the evidence shows that the allegations in Ninez’s article are not true and that she “did not exercise reasonable degree of care or good faith efforts to arrive at the truth before writing and publishing the article.” Also “the accused did not present evidence showing that she verified the truth of the contents of the article.” She “even admitted that she did not make any effort to ask private complainants to verify her information.”

Another of her defenses is that F. Arthur L. Villaraza of the CVC law office is a “public figure” and therefore cannot sue. He is not, the judge said. “The fact that private individuals are involved in events that attract media attention is not proof that they are public figures since they may have been dragged unwillingly into the controversy.”

gemini said...

I don't know, but if you ask me, writing about the same thing 48 times already raises the issue of motive. Perhaps, the law firm did not file cases against other writers and columnists because they wrote about them only once or twice, unlike ninez olivares who wrote about them 48 times, every day within a span of 3 or 4 months...

Did any other writer or publisher do something similar? Probably not because it would not be logical to do so... i bet if you ask any other journalist you will get the same answer. So the real question is: who was pushing Ninez' buttons that made her do what she did??? Poor Ninez - she may have been used without her knowing it. And she's paying the price now. tsk, tsk...

ricelander said...

There was Aries then Gemini. Where are Cancer, Sagittarius, Pisces and the rest of the Zodiac.

John I will post this on mine, ok?

You've covered this issue well, man.

john marzan said...

I don't know, but if you ask me, writing about the same thing 48 times already raises the issue of motive. Perhaps, the law firm did not file cases against other writers and columnists because they wrote about them only once or twice, unlike ninez olivares who wrote about them 48 times, every day within a span of 3 or 4 months...

Did any other writer or publisher do something similar? Probably not because it would not be logical to do so... i bet if you ask any other journalist you will get the same answer. So the real question is: who was pushing Ninez' buttons that made her do what she did??? Poor Ninez - she may have been used without her knowing it. And she's paying the price now. tsk, tsk...


those first 19 tribune articles were written around 2003, all about the fraport deal. it wasn't all by ninez, but they were all articles by reporters and editorials and opeds of the tribune.

up until august of last year (2007) when the world bank made it's decision, the fraport corruption issue was up in the air. it took four years before the WB made a decision.

and i think the Firm and the Arroyo admin were flexing it's muscles when it thru it's partisan judges, issued 19 arrest warrants for ninez on the same libel complaint, to be heard by 19 different judges.

Here's what that meant:

The arrest warrants, for two counts out of 19 counts, were issued by a Makati judge on a Friday, which is against the rules, and this was done without the Department of Justice (DoJ) granting me my right to ask for a motion for reconsideration, as this was just a preliminary investigation. This is a clear denial of due process for the accused.

The Makati judge rejected a motion from the DoJ to consolidate the cases, which paved the way for the issuance of 19 arrest warrants against me on the same libel complaint, to ensure that even after posting the bail, I would again be arrested, and arrested and arrested, as there were 17 more arrest warrants pending and to ensure that I would be charged excessive bail amounting to P190,000 for the charge of libel.

And the Makati judge rejected a motion to consolidate the 19 counts of libel, which translates to 19 judges hearing the same case of libel, with each sala hearing just one count even when there were just two complaints filed. Imagine 19 salas being utilized to hear one and the same case. What a waste of time and taxpayers' money.

This was also resorted to by Pancho and Gloria to ensure that I would be spending my time in 19 courts of Makati than in the newspaper.


but now it's up to 48 different judges? katulad ng sinabi ni mlq3. malakas.

john marzan said...

thanks ricelander.

john marzan said...

I don't know, but if you ask me, writing about the same thing 48 times already raises the issue of motive.

uhhh... dante ang also wrote a series of front page articles that railed against the corruption activities (including fraport) of Viaje aka Pancho Villaraza.

he was never arrested and made to face libel charges altho they tried to deport him. lol.