Motion For Reconsideration.docx

REPUBLIC OF THE PHILIPPINES DEPARTMENT OF JUSTICE OFFICE OF THE PROVINCIAL PROSECUTOR GROUND FLOOR PALACE OF JUSTICE, CAPITOL CEBU CITY

RUEL MORALDE, Complainant,

- versus -

NPS Docket No. VII-03-INV-18G-0846 For: Online Libel

MARLYN YAUN, Respondent. x--------------------------------------------------/

MOTION FOR RECONSIDERATION Respondent respectfully avers that – Respondent received a copy of the Resolution by this Honorable Office on March 18, 2019, which reads – “PREMISES CONSIDERED, the undersigned hereby recommends the filing of three (3) Information before the court of competent jurisdiction against the respondent for the crime of Libel under Article 353 of the Revised Penal Code in relation to RA 10175, on those posts dated September 23, 2015, October 7, 2015 and October 23, 2015.” Undaunted thereof, Respondent moves for the reconsideration of the Resolution dated January 28,2019 received on March 18, 2019 based on the following: GROUNDS I The Honorable Office erred in declaring that the crime herein charged has not yet prescribed.

DISCUSSION I ARTICLE 90 of the Revised Penal Code governs the prescriptive period for the crime of libel committed online

With all due respect to the Honorable Office, it is respectfully submitted that the proper law to be applied in considering the prescriptive period of the crime of Libel committed online is ART. 90 of the Revised Penal Code not Commonwealth Act no. 3326. Republic Act no. 10175 or the Cybercrime Prevention Act of 2012 is not a special act as defined by Commonwealth Act no. 3326 particularly with regards to Libel committed online. Not being a special act, the provisions of Commonwealth Act no. 3326 does not apply to the Cybercrime Prevention Act of 2012 particularly on Sec. 4(c)(4) thereof on the matter of Online Libel. Section 3 of Commonwealth Act no. 3326 unequivocally provides: “Sec. 3. For the purposes of this Act, special acts shall be acts DEFINING and PENALIZING violations of the law NOT INCLUDED IN THE PENAL CODE.”(emphasis supplied) The above provision is clear that CA 3326 governs only special acts that DEFINES and PENALIZES violations of the law. CA 3326 goes even further by providing that the special acts must DEFINE and PENALIZE violations of the law NOT INCLUDED IN THE PENAL CODE. Republic Act no. 10175 particularly online libel under Sec. 4(c)(4) does not define the crime of libel rather makes reference and acknowledges the existence of the crime of libel under ART. 355 of the Revised Penal Code. Sec. 4(c)(4) of RA 10175 provides: “(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” For its failure to define a violation of the law, RA 10175 Sec. 4(c)(4) does not qualify as a special act as defined under CA 3326. Even if Section 6 of RA 10175 provides a higher penalty for a different manner of committing a libel as defined under the Revised Penal Code, it falls short of the requirements under CA 3326 because the law requires that the special act must define and penalize a violation of the law. RA 10175 merely provides a higher penalty but does not define the crime of libel. Moreover, it has been further required by CA 3326 that the violation of the law under the special act must not be included in the Penal Code of the Philippines. The crime of libel is already a violation of the law, which is included in the Penal Code of the Philippines specifically under ARTICLE 355 thereof. Therefore, CA 3326 does not apply and will not govern RA 10175 on the matter of prescription of the crime on Online Libel. Since RA 10175 on Online Libel is not a special act that calls for the application of CA 3326; moreover, it does not provide for a prescriptive period of such crime thereby leaving it without a designated prescriptive period for the crime of online libel, ART. 90 of the Revised Penal Code must therefore be applied. ARTICLE 90 of the Revised Penal Code provides:

"Art. 90. Prescription of crimes. — Crimes punishable by death, reclusion perpetua or reclusion temporal shall prescribe in twenty years. "Crimes punishable by other afflictive penalties shall prescribe in fifteen years. "Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those punishable by arresto mayor, which shall prescribe in five years. "THE CRIME OF LIBEL OR OTHER SIMILAR OFFENSES SHALL PRESCRIBE IN ONE YEAR. "The offenses of oral defamation and slander by deed shall prescribe in six months. "Light offenses prescribe in two months. (emphasis supplied)

ART. 90 will apply even to a special law because of the principle that the Revised Penal Code is supplementary to such laws. ART. 10 of the Revised Penal Code provides: ART. 10. Offenses not subject to the provisions of this Code. – Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary. (emphasis supplied)

II The Revised Penal Code governs all forms of Libel including Online Libel Under RA 10175, Online Libel is not a new crime. It is still the same crime defined under ART. 353 of the Revised Penal Code and punished under ART. 355 of the same code, albeit committed through a computer system. It is one and the same crime of Libel that is defined and made punishable by the Revised Penal Code. RA 10175 merely provides for a higher penalty for Libel committed online. The Supreme Court has aptly made its position on this matter in the case of JOSE JESUS M. DISINI, JR. vs. THE SECRETARY OF JUSTICE G.R. No. 203335, February 11, 2014. The Supreme Court said: “xxx The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4) is not a new crime but is one already

punished under Article 353. Section 4(c)(4) merely establishes the computer system as another means of publication. xxx” There is therefore only one crime of Libel but has different manners of committing it due to different modes of publication. One of the modes of publication is by posting the libelous remarks online, which is still considered as Libel as defined under the Revised Penal Code but given a higher penalty by RA 10175. The elements of the crime of Libel are: a) it must be defamatory; b) it must be malicious; c) it must be given publicity; and, d) the victim must be identifiable. Absent one of these elements precludes the commission of the crime of libel (Dionisio Lopez Y Aberasturi Vs. People Of The Philippines And Salvador G. Escalante, Jr. G.R. No. 172203 February 14, 2011). A cursory look at all the elements of Libel clearly shows that there can only be one crime of Libel. The use of the phrase “computer system or any other similar means which may be devised in the future” could only refer to the element of publication. Regardless of the tenure of RA 10175 particularly on Libel, there is only one crime of Libel and that is Libel as defined under the Revised Penal Code. It is therefore logical to conclude that the provisions of the Revised Penal Code shall apply, not only on the matter of prescription of the crime of Libel but all the principles applicable to felonies under the Revised Penal Code. Further, complainant posits that when RA 10175 increased the penalty of Libel by one degree, it affected the prescriptive period of Libel as provided under ARTICLE 90 of the Revised Penal Code and applied CA 3326. It must be observed that when Congress enacted RA 4661, they particularly separated Libel and designated it into a different class of felony. Libel had an imposable penalty of prisión correccional as provided under ART. 355 of the Revised Penal Code, which would have had a prescriptive period of TEN (10) years as provided under ART. 90 of the Revised Penal Code but still Congress purposely gave Libel a prescriptive period of ONE (1) year. This is an indication that the intention of the legislators was to classify Libel not in accordance with its imposable penalty but by its very nature. Therefore, notwithstanding the imposable penalty of Online Libel, the prescriptive period of such crime should be ONE (1) year on the basis of its classification and in accordance with RA 4661 now Article 90 of the Revised Penal Code. III The Principle of Pro Reo should be applied With a belief that the Honorable Office has a fervent mind on the applicable justice in this case, it is respectfully submitted that the Honorable Office should have considered the Principle of Pro Reo. RA 10175 has left the bench and the bar hanging due to its silence on the matter of prescription of the crimes therein. There still remains a proper question as to what law on prescription of crimes should be applied. The Supreme Court has yet laid down guiding principles on this matter but still the Honorable Office has to act on this case.

The case of PEOPLE OF THE PHILIPPINES vs. ARTURO F. PACIFICADOR [G.R. No. 139405. March 13, 2001] is very enlightening. The Court said: It bears emphasis, as held in a number of cases, that in the interpretation of the law on prescription of crimes, that which is more favorable to the accused is to be adopted. The said legal principle takes into account the nature of the law on prescription of crimes which is an act of amnesty and liberality on the part of the state in favor of the offender. In the case of People v. Moran, this Court amply discussed the nature of the statute of limitations in criminal cases, as follows: The statute is not a statute of process, to be scantily and grudgingly applied, but an amnesty, declaring that after a certain time oblivion shall be cast over the offense; that the offender shall be at liberty to return to his country, and resume his immunities as a citizen; and that from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence, it is that statutes of limitation are to be liberally construed in favor of the defendant, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition and notification by the legislature of the fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt. Also, in PEOPLE OF THE PHILIPPINES vs. BETH TEMPORAD, G.R. No. 173473 December 17, 2008, the court said: The reason for this rule is elucidated in an eminent treatise on statutory construction in this wise: It is an ancient rule of statutory construction that penal statutes should be strictly construed against the government or parties seeking to enforce statutory penalties and in favor of the persons on whom penalties are sought to be imposed. This simply means that words are given their ordinary meaning and that any reasonable doubt about the meaning is decided in favor of anyone subjected to a criminal statute. This canon of interpretation has been accorded the status of a constitutional rule under principles of due process, not subject to abrogation by statute. The rule that penal statutes should be strictly construed has several justifications based on a concern for the rights and freedoms of accused individuals. Strict construction can assure fairness when courts understand it to mean that penal statutes must give a clear and

unequivocal warning, in language people generally understand, about actions that would result in liability and the nature of potential penalties. A number of courts have said: the rule that penal statutes are to be strictly construed is a fundamental principle which in our judgment will never be altered. Why? Because the lawmaking body owes the duty to citizens and subjects of making unmistakably clear those acts for the commission of which the citizen may lose his life or liberty. Therefore, all the canons of interpretation which apply to civil statutes apply to criminal statutes, and in addition there exists the canon [of strict construction] . The burden lies on the lawmakers, and inasmuch as it is within their power, it is their duty to relieve the situation of all doubts. xxxx Additionally, strict construction protects the individual against arbitrary discretion by officials and judges. As one judge noted: the courts should be particularly careful that the bulwarks of liberty are not overthrown, in order to reach an offender who is, but perhaps ought not to be, sheltered behind them. But also, for a court to enforce a penalty where the legislature has not clearly and unequivocally prescribed it could result in judicial usurpation of the legislative function. One court has noted that the reason for the rule is to guard against the creation, by judicial construction, of criminal offenses not within the contemplation of the legislature. Thus the rule requires that before a person can be punished his case must be plainly and unmistakably within the statute sought to be applied. And, so, where a statute is open to more than one interpretation, it is strictly construed against the state. Courts further rationalize this application of the rule of strict construction on the ground that it was not the defendant in the criminal action who caused ambiguity in the statute. Along these same lines, courts also assert that since the state makes the laws, they should be most strongly construed against it. It is therefore axiomatic for the Honorable Office, sans the pronouncement of the Supreme Court, to follow this principle in the light of the circumstances regarding the prescriptive period of the crime of Online Libel. With the above premises, the prescriptive period of the crime of Online Libel under RA 10175 Sec. 4(c)(4) is therefore one year, that which is prescribed under RA 4661 now ART. 90 of the Revised Penal Code, and that the crime here in charged has already prescribed as the action was filed beyond one year from the time the offended party discovered the alleged libelous remarks.

PRAYER WHEREFORE, it is most respectfully prayed that the Resolution by this Honorable Office on March 18, 2019 recommending the filing of THREE (3) informations against herein Respondent be reversed and set aside. It is further prayed that the case be dismissed as the crime charged herein has already prescribed. Other reliefs be granted as shall be deemed just and equitable in the premises. Cebu City, Philippines, March 27, 2019.

MARLYN YAUN Affiant

SUBSCRIBED AND SWORN to before me this ____ day of March 2019 at Cebu City, Philippines. Further, I certify that I personally examined the herein affiant and found out that he voluntarily executed the foregoing;

Doc. No. ____ Page No. ____; Book No. ____; Series of 20____.

Copy furnished: ATTY. ROQUESA M. JOYO-ALCOMENDRAS Ground Floor, JLM Building, Toledo Commercial Arcade Area Rafols St., Poblacion, Toledo City