Final-mtq.docx

Republic of the Philippines National Capital Judicial Region REGIONAL TRIAL COURT Manila, Branch 46

THE PEOPLE PHILIPPINES,

OF

THE

Plaintiff, -versus-

Criminal Case No. R - MNL - 19 01141 - CR

REYNALDO SANTOS JR., MARIA ANGELITA RESSA, and RAPPLER, INC., Accused. x-----------------------------------x

MOTION TO QUASH Accused MARIA RESSA and REYNALDO SANTOS, JR. (“Ressa” and “Santos”), by counsel, respectfully states: 1.

The Information filed by the prosecution reads as follows:

“That on or about 19 February 2014, the above named accused, did then and there willfully, unlawfully and knowingly re-publish an article entitled “CJ Using SUVs of Controversial Businessman” quoted hereunder: “Shady past? At the time we were tracing the registered owner of the Chevrolet in early 2011, we got hold of an intelligence report that detailed Keng’s past. Prepared in 2002, it described Keng as a “naturalized Filipino citizen” whose ex-

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act birthdate is unknown. In the report, he was also identified as bearing the alias “Willy,” using a surname also spelled as “Kheng.” The report stated that Keng had been under surveillance by the National Security Council for alleged involvement in illegal activities, namely “human trafficking and drug smuggling.” He is supposedly close to lawmakers and had contacts with the US embassy at the time. The document also said Keng was involved in a murder case for which he was “never jailed.” It could be referring to the death of Manila Councilor Chika Go in 2002 where Keng had been identified as a mastermind. Go was also the architect of Keng’s Reina Regente condominium residence in Binondo, Manila. According to a 2002 Philippine Star report, Keng was also accused of smuggling fake cigarettes and granting special investors residence visas to Chinese nationals for a fee. Keng has denied his involvement in this illegal transaction, saying it’s easy to get visas to the Philippines.” In the website of Rappler, Inc. with malicious intent and evil motive of attacking, injuring and impeaching the reputation of one Wilfredo D. Keng, with residence at Carriedo Street, Manila, within the jurisdiction of this Honorable Court, as a businessman, and as a private citizen, thereby exposing him to public hatred, contempt, ridicule, discredit and dishonor.” 2. Section 3 (a), Rule 117 of the Rules of Court provides that when the facts charged in the information do not constitute an offense, the same is a ground for the quashal of an Information. 3. On the very face of the Information, the facts charged do not constitute an offense of cyber libel as the prosecution failed to mention that the same article was originally published on May 29, 20121. There has been a misapplication of the multiple publication as such has no basis in law. Furthermore, Republic Act No. 10175, other-

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See Annex “A”.

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wise known as Cybercrime Prevention Act of 2012, cannot be applied retroactively without violating the Constitution and the Revised Penal Code on the rule of prospectivity of laws. 4. Section 3 (g), Rule 117 of the Rules of Court provides that the extinguishment of the criminal action or liability is a ground for the quashal of an Information. 5. Even assuming that accused Ressa and Santos committed cyber libel, the same has been extinguished as Article 90 of the Revised Penal Code states that the crime of libel or other similar means shall prescribe in one year. The punishable acts, as stated in R.A. 10175, are those unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future. The Facts Charged in the Information Do Not Constitute the Offense of Cyber Libel 6. The prosecution’s basis of multiple republication for the information is misplaced and has no legal basis here in the jurisdiction of the Philippines. They claim that there was a republication since the article was first published in 2012 and was re-published in 2014. Their theory stands on a decision of a third division of the Supreme Court titled Marcelo Soriano vs Intermediate Appellate Court.2 7. Such decision of the Supreme Court is not binding in this case because the Soriano case was ruled by a Third Division of the Supreme Court not en banc. As such, the Soriano case does not form part of precedent. 8. Soriano vs Intermediate Appellate Court cannot be applied in this case because the issue in that case was the jurisdiction for the libel case and not a case of a republished article. The Court in said decision did not delve into the the counts of libel incurred by the accused. The Court stated that "multiple publication" rule in the Philippines “applies to every time the same written matter is communicated such communication is considered a distinct and separate publication of the libel”.3 However, the Court applied such definition for ascertaining the jurisdiction of the libel suit.4

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Soriano v. Intermediate Appellate Court, G.R. No. 72383, November 9, 1998. Ibid. 4 Ibid. 3

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9. Granting that the multiple republication rule applies in this case, the correction of a typographical error in the article does not constitute republication. No substantial change was done in the article. Consequently, the only date of publication to be considered is that of May 29, 2012. Given that the Information does not state the original publication as an offense, it must be quashed. 10. Furthermore, Article III, Section 22 of the 1987 Constitution prohibits the enactment of ex post facto laws. One type of ex post facto law has been identified by jurisprudence as that which makes criminal an act done before the passage of the law, which was innocent when done and punishes such an act.5 Furthermore, Article 22 of the Revised Penal Code prohibits the retroactive application of a penal law that is prejudicial to the accused. 11. The article written by Santos was originally published on May 29, 2012 and Republic Act No. 10175, punishing libel through a computer system or any other similar means6, was enacted on September 12, 2012. The law subsequently took effect on October 3, 2012 -- fifteen days after it was published in The Philippine Star. 12. By charging Ressa and Santos for violating Republic Act No. 10175, their act of publishing the article is made criminal by a law that was enacted after the said act was committed. This is a clear violation on the Constitutional prohibition on ex post facto laws as well as the prohibition on retroactive application of penal laws as it would clearly prejudice the accused. 13. Furthermore, if the correction of the article on February 19, 2014 would constitute as republication, Republic Act No. 10175 would still not apply as the Supreme Court issued a Temporary Restraining Order which barred any action that could have been taken under the law. In the case of Disini, Jr. v. Secretary of Justice,7 the TRO was issued on October 9, 2012 barring the enforcement of Republic Act No. 10175. The TRO was only lifted on April 22, 2014 when the Motions for Reconsideration were resolved with finality. As such, from October 9, 2012 to April 22, 2014, Republic Act No. 10175 had no legal and actual effect. 14. Considering the corrected article on February 19, 2014 as the basis for the criminal liability for cyber libel, the application of Republic 5

Benedicto v. Court of Appeals, G.R. No. 125359, September 4, 2001.

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Rep. Act No. 10175 (2012), sec. 4(c)(4).

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Disini v. Secretary of Justice, 727 Phil. 28 (2014).

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Act No. 10175 would be unconstitutional. Through the Disini case, the effectivity of Republic Act No. 10175 was suspended. Consequently, the court must strike down the Information which grounds its charge upon an ex post facto application of the law as it is bound to obey the Constitution, the laws and the decisions of the Supreme Court. The criminal action or liability was extinguished 15. Republic Act No. 10175 does not establish a new offense of cyber libel as manifestly stated in section 4(c)(4): (4) Libel. - The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future. 16. As expressly stated in RA 10175, the law only adds an additional means to commit libel as defined in Article 355 of the Revised Penal Code, not a new felony. 17. Cyber libel, being the same felony as defined in Article 355 of the Revised Penal Code but only committed in a different manner, is thus governed by the prescriptive period of one year, as defined in Article 90 of the Revised Penal Code. Article 91 of the same code states that the period of prescription shall be interrupted by the filing of the complaint or information. 18. Having no basis for the republication of the article for the reasons above-mentioned, the only relevant publication in this case is the one originally posted on May 29, 2012. The complaint was instituted only in 2014 and the instant information was filed only in 2019. It is apparent that the one year prescriptive period has lapsed, thus affording the court no judicial action other than to quash. 19. The charge was based on the re-published article of Rappler in 2014 and not 2012, making it appear that the complaint was for a later offense for which the prescriptive period should be computed. However, penal laws must be liberally construed in favor of the accused. 20. To give credence to the argument that the date of the republication in 2014 should be the basis from which the period should prescribe will make cyber libel an ex post facto law i.e., that makes an act, done

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before the passage of the law, and which was innocent when done, criminal, and punishes such act. Thus, the earliest publication in 2012 must instead be considered to give it the correct prescriptive period of one year. Otherwise, the governing law on cyber libel would be in violation of Constitution as well as the Revised Penal Code. 21. Simply, the foregoing unrefuted and conclusive facts on record completely destroy the prima facie truth accorded to the Information that accused Ressa and Santos supposedly committed the crime. Thus, applying the laws, supra, the instant Information should be quashed. PRAYER WHEREFORE, it is respectfully prayed that the Information be QUASHED and the instant case DISMISSED. Other reliefs, just and equitable are likewise prayed for. Taguig City, 13 March 2019

By:

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NOTICE/COPY FURNISHED (By Registered Mail) THE HON. CLERK OF COURT Regional Trial Court of the City of Manila Branch 46 EDWIN S. DAYOG Senior Assistant State Prosecutor DEPARTMENT OF JUSTICE NBI Building, Taft Avenue Ermita, Manila VILLA JUDAN & CRUZ ATTORNEYS-AT-LAW Counsel for Wilfredo D. Keng Penthouse, BPI-Philam Life Alabang Building, Alabang-Zapote Road, corner Acacia Avenue, Madrigal Business Park Ayala, Alabang, Muntinlupa DISINI & DISINI LAW OFFICE Counsel for Maria Angelita Ressa, Glenda M. Gloria and Reynaldo Santos 320 Philippine Social Science Center Commonwealth Avenue, Diliman, Quezon City 7

GORRICETA AFRICA CAUTION & SAAVEDRA Counsel for Nico Jose Nolledo, Felicia Huang Atienza And Manuel I. Ayala 15F & 4F Strata 200, F. Ortigas Jr. Road Ortigas Center, Pasig City POBLADOR BAUTISTA & REYES 5th Floor, SEDCOOI Building 120 Rada cor. Legaspi Street Legaspi Village, Makati City Retired Associate Justice Hector L. Hofileña Counsel for Jose Maria Hofileña Suite 208, Ermita Center Building 1350 Roxas Blvd., Ermita, Manila James C. Bitanga 5th Floor, Eurovilla 4 Building 853 Arnaiz Avenue, Makati City

Gentlemen: Please take notice that the undersigned will submit the foregoing Motion for the consideration and resolution of the Honorable Court on 25 March 2019 at 8:30 AM. JANINE S. ISMAEL

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WRITTEN EXPLANATION FOR SERVICE BY REGISTERED MAIL

Please be informed that the undersigned counsel served a copy of the foregoing Motion upon the above-named counsel/parties by registered mail, as evidenced by the attached Affidavit of Service by Registered Mail, due to the shortage of available manpower to effect personal delivery.

JANINE S. ISMAEL

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VERIFICATION I, MARIA ANGELITA RESSA, Filipino, of legal age, with address at Block 48 Lot 7, Lanao del Norte Street, Maharlika Village, Taguig City after being duly sworn in accordance with law, hereby depose and state that: 1. I am an accused in the above-captioned case and I have caused the preparation and filing of the foregoing Motion; 2. I have read and understood the contents of the foregoing Motion, and attest that the allegations therein are true and correct of my own personal knowledge and/or based on authentic records;

IN WITNESS HEREOF, I hereby affix my signature this __ of March 2019 in the City of _______.

MARIA ANGELITA RESSA

SUBSCRIBED AND SWORN to before me on the date and at the place first written above, affiant exhibiting to me her government issued ID bearing her signature and photograph, _____________, issued by ___________ and valid until _____________.

Doc. No. ; Page No. ; Book No. ; Series of 2019.

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AFFIDAVIT OF SERVICE

I, JOSE MARIE. ISTAN, of legal age, Filipino, single and a resident of 619 P. Burgos Street, Brgy. Poblacion, Makati City, after having been duly sworn to in accordance with law, depose and state: 1. That I am employed as a messenger of Atty. Justinne Jose Ma. Atienza with office address at 5th Floor DLSU College of Law Rufino Campus, Taguig City; 2. That on March 15, 2019, I served a copy of the following pleading/paper by registered mail in accordance with Sec. 10 of Rule 13 of the Rules of Court: MOTION TO QUASH in Criminal Case No. R-MNL-19-01141-CR entitled "People v Santos, Jr., et al.” by depositing a copy in the post office in a sealed envelope, plainly addressed to the defendant's lawyer at his office with postage fully paid, as evidenced by Registry Receipt No. 0427 attached and with instructions to the post master to return the mail to sender after ten (10) days if undelivered.

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of March 2019 in Manila City, Metro Manila, Philippines.

JOSE MARIE. ISTAN Affiant Voter's ID No. 8888 SUBCRIBED AND SWORN TO before me this __ day of March 2019 in Manila City, Metro Manila, Philippines, affiant exhibiting to me his valid proof of identification. Doc. No. _____; Page No. _____;

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Book No. _____; Series of 2019.

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ANNEX “A”

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