DISSENTING OPINION
LEONEN, J.:
Medel Arnaldo B. Belen has indeed made callous, acerbic, and intemperate comments through his motions before the prosecutor. His comments betray a lack of empathy for another human being. They also reveal his sense of undeserved superiority, which is as empty as it is comical.
However, in my view, he cannot be criminally liable for libel.
In his Omnibus Motion (for Reconsideration & Disqualify)1 filed before the Office of the City Prosecutor of San Pablo City in an estafa case,2 Medel Arnaldo B. Belen (Belen) stated:
In the instant case, however, the investigating Fiscal was not impartial and exhibited manifest bias for 20,000 reasons. These reasons were not legal or factual. These reasons were based on her malicious and convoluted perceptions. If she was partial, then she is stupid. The Investigating Fiscal's stupidity was clearly manifest in her moronic resolution to dismiss the complaint because she reasoned out that. . . .
Unfortunately, the investigating Fiscal's wrongful assumption were [sic] tarnished with silver ingots. She is also an intellectually infirm [sic] or stupidly blind. Because it was just a matter of a more studious and logical appraisal and examination of the documents and affidavits submitted by respondent's witnesses to establish that the lease started in 1993 . . . . For all the 20,000 reasons of the Investigating Fiscal, the slip of her skirt shows a corrupted and convoluted frame of mind - manifest partiality and stupendous stupidity in her resolution.
. . . .
Lastly, the invocation of the dismissal of LS. No. 03-1412 was a nail in the coffin for the idiocy and imbecility of the Investigating Fiscal. It was her fallacious rationale that because No. 03-1412 covered the same subject, the instant case should also be dismissed. . . . In other words, the Investigating Fiscal's invocation of the dismissal of I.S. No. 03-1412 was clearly imbecilic and idiotic.
All these matters could have been easily established. All the idiotic and corrupted reason [sic] of the Investigating Fiscal manifestly exposed, had the Investigating Fiscal exercised the cold partiality of judge and calendared the instant case for clarificatory questions. . . . Unfortunately, the Investigating Fiscal despite the letter-request for clarificatory question to shed lights [sic] of all the transaction [sic] and facts under investigation, chose to be guided by her manifest partiality and stupendous stupidity.
. . . Thus, she should resign from the prosecutorial arm of the government and be a defense counsel.1âwphi1 Then her infirmed intellectual prowess and stupid assumptions be exposed in trial on the merits under which complainant is afforded the due process requirement of the law. At that stage of trial, she would be exposed as a fraud and a quack bereft of any intellectual ability and mental honesty.3
Libel, as defined in the Revised Penal Code, consists of any writing or printed form that has been made public and that maliciously imputes to a person a crime, vice, defect, or any act or circumstance tending to cause him or her dishonor, discredit, or contempt.4
Conviction for libel requires proof of facts beyond reasonable doubt of: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the allegation; (c) identity of the person defamed; and (d) malice.5
For libel to prosper, the accused must be shown to have publicly alleged facts that can be proven to be true or false. Statements of opinion-being impressions subjective to the person-are not criminally actionable.
Furthermore, malice is an essential element for criminal libel.
I
Malice exists when a defamatory statement is made without any reason other than to unjustly injure the person defamed. 6 There must be an intention to annoy and injure, motivated by ill will or personal spite.7
Generally, malice is presumed in every defamatory statement. 8 The prosecution need not prove the element of malice to convict an accused.
This is not true with privileged communications. There are two (2) types of privileged communications: (i) absolutely privileged communications; and (ii) qualifiedly privileged communications. 9
In absolutely privileged communications, no statement can be considered libelous even though it is defamatory and maliciously made. 10 Qualifiedly privileged communications, on the other hand, are statements the malice of which must be proven by the prosecution before an accused is convicted. 11
II
Belen's statements fall under absolutely privileged communications. In absolutely privileged communications, the accused cannot be criminally liable for libel although he or she has made defamatory statements proven to be malicious. 12
Examples of absolutely privileged communications include: (i) statements in official legislative proceedings by members of the Congress; and (ii) statements made during judicial proceedings, including answers given by witnesses in reply to questions propounded to them during proceedings. 13
People v. Sesbreno14 discusses the rationale for exempting absolutely privileged communications:
The doctrine of privileged communication that utterances made in the course of judicial proceedings, including all kinds of pleadings, petitions and motions, belong to the class of communications that are absolutely privileged has been expressed in a long line of cases. . . . The doctrine of privileged communication rests upon public policy, which looks to the free and unfettered administration of justice, though, as an incidental result it may in some instances afford an immunity to the evil disposed and malignant slanderer. While the doctrine is liable to be abused, and its abuse may lead to great hardships, yet to give legal action to such libel suits would give rise to greater hardships. The privilege is not intended so much for the protection of those engaged in the public service and in the enactment and administration of law, as for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers, and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for the recovery of damages. Lawyers, most especially, should be allowed a great latitude of pertinent comment in the furtherance of the causes they uphold, and for the felicity of their clients, they may be pardoned some infelicities of language. 15 (Emphasis supplied, citations omitted)
The absolute privilege of communications in judicial proceedings extends to preliminary investigations.
Preliminary investigations are inquisitorial proceedings to determine probable cause-whether there is "sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof, and should be held for trial." 16 In conducting a preliminary investigation, the prosecutor exercises powers akin to those of a court, although he or she is an officer of the executive department. 17
In Alcantara v. Ponce: 18
Since the newsletter was presented during the preliminary investigation, it was vested with a privileged character. While Philippine law is silent on the question of whether the doctrine of absolute privilege extends to statements made in preliminary investigations or other proceedings preparatory to the actual trial, the U.S. case of Borg v. Boas makes a categorical declaration of the existence of such protection:
It is hornbook learning that the actions and utterances in judicial proceedings so far as the actual participants therein are concerned and preliminary steps leading to judicial action of an official nature have been given absolute privilege. Of particular interest are proceedings leading up to prosecutions or attempted prosecutions for crime . . . . [A] written charge or information filed with the prosecutor or the court is not libelous although proved to be false and unfounded. Furthermore, the information given to a prosecutor by a private person for the purpose of initiating a prosecution is protected by the same cloak of immunity and cannot be used as a basis for an action for defamation. 19 (Emphasis supplied, citations omitted)
This doctrine applies, although the statements are not directed against the opposing party. The only qualification to the doctrine of absolutely privileged communications is that the statements must be relevant to the issues or are responsive or pertinent to the questions propounded. 20
In Sesbreno, the accused called the opposing counsel an "irresponsible person, cannot be trusted, like Judas, a liar and irresponsible childish prankster."21 In discussing the test of relevancy, this Court held:
However, this doctrine [of absolutely privileged communication] is not without qualification. Statements made in the course of judicial proceedings are absolutely privileged - that is, privileged regardless of defamatory tenor and of the presence of malice - if the same are relevant, pertinent, or material to the cause in hand or subject of inquiry. A pleading must meet the test of relevancy to avoid being considered libelous.
As to the degree of relevancy or pertinency necessary to make alleged defamatory matters privileged, the courts are inclined to be liberal. The matter to which the privilege does not extend must be so palpably wanting in relation to the subject matter of the controversy that no reasonable man can doubt its irrelevance and impropriety. In order that a matter alleged in a pleading may be privileged, it need not be in every case material to the issues presented by the pleadings. It must, however, be legitimately related thereto, or so pertinent to the subject of the controversy that it may become the subject of the inquiry in the course of the trial.
. . . .
. . . Although the language used by defendant-appellee in the pleading in question was undoubtedly strong, since it was made in legitimate defense of his own and of his client's interest, such remarks must be deemed absolutely privileged and cannot be the basis of an action for libel.22 (Emphasis supplied, citations omitted)
When the statements are made to protect one's interests in the case-however caustic and severe the language used may be-they are considered absolutely privileged.1âwphi1
Belen's acerbic statements were made in an Omnibus Motion, a pleading filed before the Office of the Prosecutor in an estafa case. His statements constitute his justifications for filing his Motion. They include lengthy explanations on why the prosecutor erred in dismissing his estafa case. Although the statements were misguided and callous, to Belen it was necessary that he alleged them for his prayer to be granted. Belen made the statements as a means to protect his own interests as he believed that his estafa case was unjustly dismissed.
Necessarily, the statements are absolutely privileged.
III
Assuming that the communications are not absolutely privileged, the statements are, at the very least, qualifiedly privileged.
Qualifiedly privileged communications, although defamatory and offensive, are libelous only when actual malice is proven.23
Statutorily, qualifiedly privileged communications are provided for under Article 354 of the Revised Penal Code:
ARTICLE 354. Requirement for Publicity. - Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.
This enumeration, however, is not exclusive. Other communications may be deemed qualifiedly privileged when considered in light of the public policy to protect the right to freedom of speech. 24
In Flor v. People:25
In the case, however, of Borjal v. Court of Appeals, this Court recognized that the enumeration stated in Article 354 of the Revised Penal Code is not exclusive but is rendered more expansive by the constitutional guarantee of freedom of the press, thus:
. . . To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. The rule on privileged communications had its genesis not in the nation's penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. As early as 1918, in United States v. Cañete, this Court ruled that publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it express recognition in the statute punishing libels.26 (Emphasis supplied, citations omitted)