Seares: 2 libel charges vs. Nalzaro dumped. Judge sees double jeopardy before trial


AS EARLY as last Feb. 11, 2014, the Supreme Court (SC) made it clear in Jose Jesus M. Disini Jr., et al, vs. Secretary of Justice, et al (GR#203335) that a person cannot be charged with libel under both the Revised Penal Code (RPC) and the Cybercrime Prevention Act of 2012 for the same offense.

The other Friday, Dec. 6, 2019, Regional Trial Court Branch 11 Judge Ramon Daomilas Jr. leaned on that high court ruling to dismiss two out of four libel charges against broadcaster-newspaper columnist Bobby Nalzaro.

“An identical material cannot be the subject of two separate libel cases,” as they involve “essentially the same elements and are in fact one and the same offense,” said the SC in its Disini ruling. Charging the offender will be “a blatant violation of the proscription against double jeopardy.”

What must have prompted a Cebu City assistant prosecutor, one Russel Busico, to file the information in court charging Nalzaro with four counts of libel, instead of just two?

Two cases times two

Two complaints of cyber libel were filed by Miguel Osmeña, son of the former Cebu City mayor, on top of the two complaints for libel he filed under RPC for the same published material: Nalzaro’s columns of Sept. 5, 2018 and Sept. 12, 2018 in SunStar Cebu print and in SunStar Online.

The two columns linked Miguel to the “illegal” business of refilling butane canisters, in effect saying the elder Osmeña meddled in the case because of his son’s business interest. The young Osmeña said the publications were “malicious and libelous.” Filing four, not just two, counts of libel must be aimed to afflict Nalzaro as severely as possible .

Disini, Alejandro rulings

[1] Prosecutor Busico apparently rejected the Disini ruling and used for support the Cybercrime Prevention Law that generally allows prosecution under the said law and under the penal code (“prosecution under the cyber law is without prejudice to liability under the Revised Penal Code”). But in the Disini ruling, the SC excluded from that provision the crimes of libel and child pornography.

[2] Busico also preferred the SC ruling in the more recent People of the Philippines vs. Alejandro. But as pointed out by RTC 11 Judge Daomilas, who in a Dec. 6 joint ruling quashed the two cyber complaints against Nalzaro, the Alejandro case “merely ruled on the principle of double jeopardy in general while the Disini case applied on all fours to the Nalzaro cases.”

[3] The prosecutor may have been swayed too by the widespread belief that a respondent can avail himself of the benefit of double jeopardy only after trial and conviction. Double jeopardy, the standard definition says, is “putting a person on trial for an offense for which he has been previously put on trial under a valid complaint.” Judge Daomilas struck down that popular understanding by saying “the accused does not have to go through an entire trial and wait for a conviction or acquittal before he can invoke his right against double jeopardy.”

The higher penalty

It is bad enough for a journalist to face one-degree-higher penalty for libel, with the Cybercrime Prevention Law to blame. The aggrieved complainant almost always opts for the more severe sanction.

It is much worse for the journalist to face two cases for each libelous material, as what Nalzaro faced and resisted until an alert judge threw out the excess complaints.

Cyber libel now is punishable with a minimum jail term of four years and one day to a maximum of eight years per offense. While the SC has encouraged judges, in a memorandum-circular, to impose only a fine, the right to mete out the jail sentence stays; it has not been removed. And the qualifier for the libel penalty to rise is the use of computer or “any other means in the future” in committing libel.

In Pilate fashion

At his level, the prosecutor was expected to see the illegal additional charges filed against Nalzaro. The prosecutor did not find that in his review. Instead, he persisted in requiring the broadcaster-columnist to carry the additional burden.

A number of people in the prosecution service have learned to wash their hands, in Pilate fashion, off libel cases involving politicians and journalists. They fear to drop the charges despite wobbly evidence and instead toss the case to the court for a “full-blown trial,” which further harasses the journalist until a fair-minded judge who knows the law and jurisprudence finally sets things right.

Bobby Nalzaro is not yet off the hook. He still faces two libel cases under the RPC in another court. What offers some comfort is that his current lawsuits are cut down by half and the penalty, if convicted, is no longer one degree higher. Or he might just be slapped with a fine.


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