REPUBLIC OF THE PHILIPPINES

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

RUEL MORALDE,
Complainant,

NPS Docket No. VII-03-INV-18G-0846

- versus - 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