CEBU

Nalzaro: Cyber and RPC libel; double jeopardy

Saksi

I AM writing this as a matter of personal privilege. This is an early Christmas gift for me that money cannot buy. Thank you, Lord, justice triumphed.

Miguel Osmeña, son of “has-been” mayor Tomas Osmeña, filed four libel cases against me last year: two in violation of Article 353 of the Revised Penal Code (RPC) and two for violation of the Cybercrime Prevention Act of 2012 or Republic Act 10175. These cases stemmed from my columns, both in SunStar Cebu and Superbalita, implicating him in the illegal butane canister business.

The two cases under RPC are now pending before the sala of Regional Trial Court (RTC) Branch 5 Presiding Judge Ricky Jones Macabaya. I posted bail in the amount of P60,000 for my liberty. Osmeña filed a total of eight libel cases against me. The other four are still pending before the Cebu City Prosecutor’s Office.

On the other hand, the two cyber libel cases were filed before the sala of RTC Branch 11 Presiding Judge Ramon Daomilas Jr., a cyber court. My lawyer, Joan Baron of the Jesus P. Garcia Law office, SunStar Publication’s legal counsel, filed a motion to quash information, citing double jeopardy. Of course, the complainant opposed. But Judge Daolimas, in his four-page joint order released last Dec. 6, ruled in my favor. Here’s his decision in granting my motion to quash.

“After weighing the respective assertion of both parties, the court finds the motion meritorious. Very relevant to these instant cases is the ruling of the Supreme Court in the Jose Jesus M. Disini Jr. et al. vs. The Secretary of Justice et al. as it determines the constitutionality of RA 10175, particularly Section 7 thereof.

“This provision states: Liability and other Laws.—A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code as amended, or special laws. Hence, under Section 7, the four information filed against accused Nalzaro would have been allowed. However, the Supreme Court took exception to the crime of libel and the offense of child pornography/violation of RA 9775. With regard to libel, the Supreme Court ruled and not merely opined.”

Judge Daomilas further ruled: “Online libel is different. There should be no question that if the published material on print, said to be libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate libels. 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 RA 10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the Office of the Solicitor General (OSG) 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. Charging the offender under both laws would be a blatant violation of the proscription against double jeopardy.

“Clearly then, there can only be one type of libel that the prosecution can file, either libel under the Revised Penal Code or Cyber libel under RA 10175. While the Alejandro case which prosecution cites is more recent, it does not directly rule on the peculiar circumstances attendant to these instant two cases; the Alejandro case merely ruled on the principle of double jeopardy in general. The Disini case, on the other hand, is on all fours to these instant two cases because it seeks to prevent what is precisely happening; a person sued twice for publishing an article through print media as violation of the Revised Penal Code and through the world wide web as violation of RA 10175.”

“In emphasis, the Disini case ruled on the constitutionality of RA 10175. It expressly proscribed the filing of two separate cases of libel under the Revised Penal Code and at the same time under RA 10175. There is no necessity to subject an accused to go through an entire trial and wait for a conviction or acquittal before he can invoke his right against double jeopardy. Apropos, prosecution has the choice on which kind of libel it will file.

“Whereof, the urgent motion to quash information (with prayer to suspend arraignment and proceedings) is hereby granted. The two information for cyber libel are hereby quashed and these two cases, dismissed.”

Hay salamat. Naibtan tag gamay tunok. Klaro ra man gyud ni nga harassment ba aron pahilumon ko (Thank you. I’m off the hook. It’s clear it was just meant to harass and silence me).


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