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PREDA Answer

November 22, 1999 · 

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Republic-of the Philippines
City of Olongapo……….. I

Counter-Affidavit

I, FR. SHAY CULLEN, Irish, of legal age, with postal address at PREDA Foundation, Inc., Upper Kalaklan, Olongapo City after having been duly sworn to in accordance with law do hereby depose and say :

1. That I, Fr. Shay Cullen, the undersigned respondent, deny that I libeled, wrote or published any defamatory remarks that caused injury or harm to Mayor Benjamin de Guzman. That what was written in the letter about the killing of street youths and the harassment of children by a death squad is the truth, plain and simple and the same has already been published in letters and news reports, but no libel case was filed against those writers and publishers.

1.1 Since the Mayor is the person with the power and authority obliged to stop the killings and bring the perpetrators to justice, having failed to do so, it is the moral duty of every citizen, and person of good conscience, especially the defendant, to freely exercise freedom of expression as protected by the constitution and human rights, and bring the matter to his attention. To point out that every human life is sacred, as Cardinal said recently we may never resort to swift justice by killing suspects”, (PDI 2)/11/99), for such is not justice at all but murder. The consequences of such killings of youth suspects would be to hold the highest authority responsible for bringing peace and order and protecting the youth and children. It was written for good reason and purpose, done without malice, to prevent more blood baths and butcheries on the streets of Davao that has horrified so many.

1.2 That when Mayor Benjamin De Guzman read the truth as was written by Fr. Shay Cullen, his conscience was stirred and he wrongly interpreted and paraphrased those words to mean something very different from the plain truth contained in the letter to something far worst that he mistakenly believed to be true, to wit:

“I as mayor of Davao city, harbor vigilantes out to murder street children and the killing of malnourished, abandoned, vulnerable, defenseless street children by organized crime (sic) of motorcycle riding gunmen is a daily occurrence in Davao City under my administration.”

1.3 Whereas he may have said this of himself as he understood it and as it emerged from his subconscious or grew in his imagination but the defendant did not say any such a thing, Yet the mayor filed a libel case that if allowed to succeed would turn the law into a weapon to instill fear into critics. It would restrain and inhibit the constitutional right to speak out and silence the voice of the innocent who cry out for justice. This especially true, for the advocates of children rights who speak for abused children such as the two youths who were shot dead in public, one a minor 17 years old and another 18. Attached hereto is the birth certificate of Lucio Roy Pahilan and the colored photos of the killings as Annex “A” and respectively.

2. That I am a Catholic Missionary from Ireland and a member of the Missionary Society of St. Columban, and have been in the Philippines since 1969 serving Filipino children and youth and defending their rights of thirty years in 1974, I established the PREDA Foundation in response to the various social conditions of Olongapo City among which were the condition of street children and youth who were caught in a spiral of drug abuse.

2.1 That from around 1990, young people who were tagged as suspected drug users were salvaged (summarily executed) by a vigilante death squad that operated in Olongapo city where I was assigned. That even then, despite the harsh intolerance of martial law I was obliged as part of my moral and social duty in defense of human rights to take steps to speak out against these abuses of human rights.

3. That to save these youth, who were marked for death, the social workers of the PREDA Center rescued them from jails and the streets and gave them sanctuary to save them from summary execution and torture. Based on reliable reports of child care institutions and NWs in Davao City, I feared that a similar pattern of summary execution of street youth was happening in that City and felt it necessary and proper to respond to the appeal for help from the. NGOs.

3.1 I was obliged not to remain silent and ignore the request, silence in such a situation can be construed as giving consent and approval. So I spoke out and appealed to the mayor Benjamin de Guzman, to take appropriate action to stop the killings and bring the killers to justice. This was done in strong terms as truly befits such a ghastly, heinous series of crimes for I was aware of many similar incidents in that city. Not to do so would be to ignore and even condone and condone the killings by inaction, omission and silence. All of which are morally repugnant and abhorrent to those who cherish the dignity and sacredness of all human life even the lives of those found guilty by a court of law. But more so to those who were arbitrarily marked for death as mere suspects without evidence or justifiable reason.

4. The moral duty to act and speak out to prevent a continuation of human rights violations is a moral, social and civic duty. The action to protest the human rights violations of the youth and call on government officials to protect victims and investigate the killings in Davao City is the duty of all citizens and part of the work of the PREDA Foundation.

5. The PREDA Foundation is an accredited and licensed by the Government and works closely with the DSWD, The Dangerous Drugs Board, and other government and non-government agencies to protect children and better the lives of the Filipino youth. It is internationally recognized and its work has been widely praised on many television documentaries, including CNN, NHK, NBC, ABC, ITV and many more radio programmes and hundreds of news articles around the world and in the Philippines.

5.1 That the defendant, Fr. Shay Cullen, is a person who has spoken out to defend the Filipino’s rights and has never libeled any person in the past thirty years (30) serving the Filipino youth and children.

6. That this work is internationally known as advocating children and youth rights carried out by nationally and internationally networking with hundreds of child care agencies. He is an international speaker, writer, journalist, media commentator on the care and empowerment of street children and youth and has conducted many successful international advocacy campaigns for children’s rights.

ARGUMENT:’THE LIBEL CASE IS DISCRIMINATORY PUNITIVE AND CONSTITUTES HARASSMENT.

7. That on or about August 23, 1999 Fr. Shay Cullen received a letter from the Tambayan Center for the care of Abused children Inc. with address at 63 Artriaga St., Davao City with enclosed chronological documentation signed by Pilgrim Bliss Gayo-Guasa, Programme Coordinator. The letter was a request begging for immediate help because street youth and children were summarily executed and others harassed by motorcycle riding vigilantes that shot two youths while a third fled.

“A death threat looms over our children and youth in the streets of Davao city. The deliverer of doom is called a “Death Squad’ disguised as a group of concerned, vigilant citizens who promote peace and order. Some of our children and youth, considered as “unsightly nuisance to our community” have been killed in mysterious circumstances and this has endangered the lives of their friends.

We need your support to stop the senseless death and harassment inflicted on our children and youth in the streets of this so-called “child-friendly” city. Please express your urgent concern by sending letters of protest to the City Mayor through this address; Hon. Benjamin de Guzman, City Mayor 8000 Davao City, Philippines. We call on you urgently respond to this situation. We believe that it is only through our concerted actions that we can ensure the protection of the rights of our children and youth.”
Attached hereto is the letter of Pilgrim Bliss Gayo-Guasa as
Annex “B” hereof.

8. That enclosed with that letter was seven (7) pages of chronological documentation of the events and happenings that are allegedly violations of the human rights of youth and street children. That this described in detail the events of shooting and harassment of youth and street children. Attached hereto is the chronology sent by Tambayan as Annex “C” hereof.

9. That a copy of another letter received with the documentation titled as “Statement of Alarm and Concern Regarding the arbitrary killing of children and youth In Davao City”. This came from another group of concerned nongovernment organization called KABIBA, dated 26 July, which describes itself as follows: Kabiba alliance for children’s Concerns “a network of more than 30 child focused NGOs, POs and 15 individual member child advocates serving those children who are in need of special protection and who, belong to the marginalized, oppressed and deprived sectors of our society. This letter of appeal, parts of which are herein quoted, was widely circulated among supporters and quoted and published by the media.

“We have gathered evidence and testimonies showing evidence that: Many young girls and boys suspected to be members of the ‘buntog’ gangs, rugby sniffers and snatchers have been caught, some forceable, due toalleged violations of the curfew ordinance on minors. These children and youth have allegedly been sexually molested while in custody and subjected to tortured (sic) and mockery by washers of the local policed (sic) force, the very people we thought would serve as guardians. What has become, of our police force that they have turned into patty tyrants and barbarians?

These, children suspects have been extremely harassed by unidentified motorists who keep them under continued surveillance, for reasons unknown to them . . . . two Juvenile boys suspected to be snatchers were summarily executed in broad daylight for no apparent reason. It was alleged that they were gunned down by the dreaded “death squad” to get rid of the individuals considered unsightly nuisance such as rugby boys and pushers. Who Is behind this despicable practice and why are they allowed to go scot-free?

Those children are already victims of poverty and dysfunctional families. Why should they continue to suffer under the hands of abusive lawman and lawless elements? Have they committed hideously serious crimes that they treated so brutally, and without regard of their civilian rights?

Those distressing conditions violate the rights of the children under the Constitution and the US Convention on the Rights of the Child, both bodies of law that recognize the inherent dignity and the equal and inalienable rights of the human family, lest they forget, these victims are human beings too.

We therefore call upon:

Mayor Ban de Guzman to immediately institute measures compelling concerned government units to undertake all appropriate legal and administrative measures to ensure that the child is protected against all forms of discrimination and punishment and to provide the necessary social services that are in the best interest of the child-victims; ” (emphasis supplied)
Attached hereto is the open letter of KABIBA as
Annex “D” hereof.

9.1That both these strongly worded letters, widely distributed and publicized, are stating the same concerns for the abused children and in fact lay responsibility on the shoulders of Mayor Ben De Guzman for the shortcomings of social services and they underline the brutality of the police force of his administration calling them petty tyrants and barbarians.

The letters point out the shocking abuses of children and the omissions of the Mayor, and the brutality of the police under his administration much more courageously and forcibly than the letter of the defendant Fr. Shay Cullen. But they nor the media who has reported the same have never been charged with libel. The defendant has been singled out by the complainant for punishment by this libel case.

9.2 That this group of 30 child caring NGO’s and Tambayan felt that the situation was an urgent and serious violation of human rights and was itself calling on supporters to write to the mayor to take action to end the killing, start an investigation and take action to bring the suspects to justice. A most reasonable and morally correct appeal and one that was taken up on their invitation by Fr.Shay Cullen.

9.3 Tha chronology of events dated from July 6,1999 when in the afternoon, an indisputable fact, two youths aged 17 years old and 18 years old, Roy Roy and Mamay were gunned down in public by two unidentified, men in black, in Ilustre St. near Galaxy theater. There were three youths in all. One was able to escape.

9.4 The above NGO’s all printed and distributed the same facts regarding the cases, expressed equal strong reactions, and called on the mayor to take action by investigating the murders of the youths, they appealed to the general public and made their letters available to the media, said letters appealing, for all to write to the mayor, but neither the newspapers or the radio stations, editors, publishers, or reporters or officials of the NGOs were charged with libel by Mayor De Guzman Date:

ANNEX: October 6, 1999 Newspaper: Mindanao Daily Mirror,
Headline: No child’s land?

9.5 This in itself indicates that respondent was singled out for special punishment and the complaint is discriminatory and as such constitutes harassment. In Vasquez v. Court of Appeals G.R. No.118971 in a decision promulgated September 15, 1999, Judge Vicente Mendoza and the Supreme Court en banc ruled against a decision of the Court of Appeals in a case involving a government official who brought a libel case against his critic, (the petitioner). The Supreme Court decision on page 11 upheld that the government official did not charge the reporters, editor, or publisher of the newspaper despite the fact that they were the, ones who actually published the alleged defamatory material.

9.6 Instead of the claim that petitioner was politically motivated in making the charges against the complainant it would appear that the complainant filed this case to harass petitioner. Art 360 of the Revised Penal Code provides.

“Persons responsible- any person who shall publish, exhibit or cause the publication or exhibition of any defamation in writing or by similar means, shall be responsible for the same.”

9.70 The court in the same case went on to cite from another case Manuel v. Paño 172 SCRA 225 (1989L)

“What was said in an analogous case may be applied inutatis mutandis to the case at bar : It is curious that the ones most obviously responsible for the publication of the alleged offensive new report, mainly the editorial staff and the periodical staff, were not at all lmpleaded. The charge was lavoled against the petitioner and filcuriouser” still, his clients who have nothing to do with the editorial policies of the newpaper. There is here a manifest effort to persecute and intimidate the petitioner for his temerity in accusing the ASAC agents who apparently enjoyed special privileges -and perhaps also immunities- during those oppressive times.”

ARGUMENT IT IS TRUE AND BASED ON ESTABLISHED FACTS.

10. That the respondent wrote his letter to the mayor after reading the letters, chronology of events and the other appeals from the NGOs. These establish the fact and bear testimony to the truth of the contents of the letter of the respondent.

10.1 Respondent was able to talk to the social workers of Tambayan over the phone and confirm the events and that a government investigation had not begun and youth and minors were still being harassed. He also learned that the vigilante group had killed as many as sixty (60) suspects since 1996. This was further reported without contradiction or denial from government officials in a report in the Philippine Daily Inquirer dated October 2, 1999. Nor were the publishers of this allegation, the Philippine Daily Inquirer hailed to court by the mayor. Attached hereto is the article of the Inquirer dated October 2, 1999 as Annex “E” hereof.

10.2 Likewise a newspaper article in TODAY dated
August 8,1999, published quotations that said that: at least two mayors, Benjamin De Guzman of Davao City and Rey Uy of Tagum City, said they favor deploying marshals to allow the government to snoop into the underworld and detect their plans”

. . . The Philippine Information agency in the samw article quoted de Guzman as saying that he favored the idea of having secret marshals in the city. . . . Attached hereto is the article in Today date August 8, 1999 as Annex “F” hereof.

10.3 That there are many other newspaper reports summarized here and enclosed as evidence that testify to the fact that a vigilante death squad operates in Davao City with impunity, that they can operate in broad daylight, use the same modus operandi and the same weapon, a .45 caliber gun. That there have been many deaths, that the mayor has been aware of the same and that he failed to stop them. Reports have also quoted the mayor as not being against secret marshals, setting up an elite police force, and for the police to shoot dead suspects if they resist. Below is the chronology and summary of the reported death squad killings in Davao.

Victims of the Reported Death Squad Killing in DavaoCity

Date: 28 September 1998
Newspaper: Mindanao Mirror
Headline: DDS victim’s kin want to get justice
Substance:
* Godofreda Dadang was shot three times in the head by two motorcycle riding men, armed with a .45 caliber pistol, in August.
* The family of Dadang believed that has execution was carried out by the Davao Death Squad at the request of criminal syndicates

Date: 10 Novwher 1998
Newspaper-. Sun Star
Headline: Agdao man shot dead
Substance:
* Romeo Gliveros y Saligumba, a man said to have a history of pick pocketing, was shot dead by three unidentified gunmen in Davao City on 9/11/8.
* Police recovered an empty shell of a .45 caliber gun and three empty shells of a .9mm handgun.

Date: 19 January 1999
Newspaper: Sun Star
Headline: Big bike killers strike again; shoot 2 traders
Substance:
* Nicholas Gavaca was shot outside his house in Davao on the 16/l/99 at 8.45 pm, by three unidentified assailants, using a .45 caliber pistol.
* Ulay Sultan died instantly from three gunshot wounds he received at 2.25 am on the 18/l/99 at the Bankerohan Underpass. The killer fired, riding on a motorbike, using a .45 caliber weapon. A cigarette-vendor was injured in the incident.

Date: 17 February 1999
Newspaper: Sun Star
Headline: Vigilantes kill another suspected drug pusher
Substance:
* Reofildo M. Danan, a driver from Davao City, was gunned at 10 am on the morning of 16/2/99. The incident occurred in front of Aglipay Church along Florentino Torres Street in Davao City. * He died due tG four gunshot wounds in the head. The shots were delivered by unidentified suspects from the back of a motorbike by what was believed to be a .45 caliber weapon.

Data: 18 February 1999
Newspaper: Sun Star
Headline: ‘Driver- pusher’ killed
Substance:
* Arman Mohamad Amerkhan, a thirty eight year old taxi driver from Davao City, was shot twice in the head by a .45 caliber bullet.
* The incident occurred at Madrazo Fruit Centre along Ponciano Reyes Street in Davao City at 11.45 pm on the 16/2/59, just thirteen hours after the murder of Danan.
* A witness alleged that he heard one of the gunmen shout, ‘drug pusher ni’

Date: 18 February 1999
Newspaper: Sun Star
Headline: Ben can’t guarantee safety of pushers Substance:
* De Guzman reiterated his call for drug pushers to get out of the city on the 17/2/99, but claimed that City Hall was not involved in the spate of vigilante killings over the previous two days.
* He claimed that the city could not guarantee protection for drug pushers from vigilantes.

Date: 10 March 1999
Newspaper: Sun Star
Headline; Woman pusher killed
Substance:
* Rebecca Rodin, a thirty nine year old woman, who was suspected of drug pushing, was killed at noon on the 9/3/99. The gunman shot her twice from motorbike, using a .45 caliber weapon.

Date: 31 March 1999
Newspaper: Sun Star
Headline: Laborer killed
Substance:
* Darwin Bualan, a twenty two year old laborer, was gunned down on the 29/3/99, by two unidentified men. He was shot in the eyebrow at vary close range.

Date: 4 May 1999
Newspaper: Daily Mirror
Headline: Woman shot dead by motorcycle killers
Substance:
* Marietta Padar, a forty three year old woman, was shot in front of her daughters on the 3/5/99.
* She was shot by an unidentified man on foot, using a .45 caliber weapon.

Date: 6 May 9.9L
Newspaper: Sun Star
Headline: DDS kills suspect just freed by cops
Substance:
* Teodoro Calubaqued, a forty one year old theft suspect, was gunned down shortly after having been released from police custody in San Pedro. He was shot while sitting in a jeep at noon on the 5/5/99 at an intersection by gunmen on a motor bike. The weapon used was a .45 caliber gun.
*Calubaqued was the second victim of suspected vigilante killings in twenty four hours.
* It was suggested that the DDS were no longer exclusively targeting drug pushers, but other criminals as well.

Date: 12 May 1999
Newspaper: Sun Star
Headline: Motorcycle rider,guns down laborer
Substance:
* Ronald Manzanares, a twenty six year old laborer, was gunned down by two unidentified motorcycle riding men in Davao del Norte on 11/5/59. He was shot once in the back of the head with a .45 caliber weapon at 6am in the morning, while riding a jeepney.

Date: 27 May 1999
Newspaper: Sun Star
Headline: Young man killed by bike riding men
Substance:
* Apolonio Mendoza, a twenty year old man, was shot by two gunmen on a motorbike, using a .45 caliber weapon. He sustained three gunshot wounds to the head.
* No group claiming to be the DDS has ever issued a statement owning or disowning any of the close to one hundred killings believed to be drug related during the last two years.

Date: 14 June, 1999
Newspaper: Sun Star
Headline: 3 vigilantes accused by Tugbok,couple
Substance:
*Three alleged vigilantes, Rene Rumagos, Edgardo Butiong and Allan Garcia; who tried to ambush a couple in Tugbok District sometime last December (1998) denied the frustrated murder case filed against them.

Date: 24 Juns 1999
Newspaper: Sun Star
Headline: Bike riding man kills Tagum City employee
Substance:
* Elmer Jurilla, a twenty six year old contractual employee assigned with the city engineer’s office, was shot twice in the head by gunman on a motorbike. The killing took place on 21/6/99 at 1.30 in the afternoon in Tagum City. The gunman used a .45 caliber weapon.

Date: 6 July 1999
Newspaper: Sun Star
Headline: Suspected Sasa thief shot dead
Substance:
* Noel Minoza a suspected thief, was shot by three gunmen while on a drinking spree with his friends in Davao City. The event took place on the evening of 6/7/99. One of the suspects was armed with a .45 caliber weapon.

Date: 7 July 1999
Newspaper: Sun Star
Headline: 2 gunned down along Ilustre St.
Substance:
* Two men were shot on the 6/7/99 at 5:55 in the afternoon in San Pedro. They had no forms of identification on them, but were believed to be pickpockets and petty thieves. The two gunmen were riding a motorcycle.

Date: 12 July 1999
Newspaper: Sun Star
Headline: Cabbie gunned down
Substance:
* Cesar Mandalihan, a thirty nine year old jeepney driver, was shot dead by three motorcycle riding men at a public market in Davao del Norte.

Date: 20 August 1999
Newspaper: Sun Star
Headline: Bike-riding men kill former soldier in P 1M rob
Substance:
* Cpl. Joey Bernabe, a twenty seven ex-solider, was shot twice in the head on the 19/8/99 on Quimpo Boulevard. The two gunmen involved were riding a motorbike and used a .45 caliber weapon. The incident occurred at 9:45 in the morning when the victim had left the Hall of Justice, after his arraignment for suspected involvement in an armed robbery. The shooting took place just a few metres away from a police outpost.

Date: 6 October 1999
Newspaper: Mindanao Daily Mirror
Headline: No child’s land?
Substance:
* This editorial highlights the inaction of Davaos City Hall in bringing any members of the vigilante gang to justice, even after fifty killings. It mentions that City Hall has done nothing to dispel rumors that they, were involved in the killings.
* For his part the Mayor blames the media for publishing biased press releases of NGOs that wish to bring him down.

Date: 11 October 1999
Newspaper: Today
Headline: Suspected Davao death squad men kill jeepney dispatcher
Substance:
* Jose Delirio, a forty seven year old jeepney dispatcher, was shot dead by gunmen riding a motorbike in Davao City on the 5/10/99. The victim sustained a single gunshot wound to the head from a .45 caliber weapon.
* Delirio’s wife claimed that he had been the target of an aborted killing the year before. She also said that he had an ongoing dispute with a jeepney operator and that thirty minutes prior to the killing he had been arguing with a police officer.
* In a separate incident Dionito Carmona, the barangay chairman of Coronon, Santa Cruz, Davao del Sur, was shot in the arm on the 6/10/9,9 by four unidentified armed men along the national highway in Zone 1.

Date: 20 October 1959
Newspaper: Today
Headline: Davao CHR probes child tormentors
Substance.
* The Southern Mindanao Commission on Human Rights has sent its investigators to work with NGGs in Davao to discover the identities of death squad members who were harassing street children. A sketch artist has been included in the team. The probe is separate from the committee, set up by De Guzman’s recently. A City Councilor Nenita Orcullo, committee chairwoman on women criticized Tambayan for allowing children to roam the street at night and advocating the use of condoms, despite the fact that she knew the provision of residential care was beyond the ability of the NGO. Both De Guzman and Orcullo called for an investigation into Tambayan.

Elite Police Force in Davao

Date: 27 October 1998
Newspaper: Sun Star
Headline: Ben’s new baby: SMART
Substanca:
* Mayor of Davao Ben de Guzman will form an elite team of police officers to “lower the incidence of crime”. It will be called the Special Mayor’s  Anti-crime Response Team or SMART.
* He denied that SMART was simply another vigilante group.

Date: 20 January l999
Newspaper: Sun Star
Headline: Ben to defiant pushers: Surrender or be killed
Substance:
* A total of forty two pushers and users have either been arrested or surrendered to authorities in a major police offensive against drug trafficking in Davao City and the surrounding areas between Friday or Sunday.
* Among those arrested was an eleven year old drug dependent in Davao City.
* De Guzman warned other pushers to surrender or leave the city or be killed in five days. He said that the police would “kill them if they resist and if they put up a fight.”

Date: 11 March 1999
Newspaper: Sun Star
Headline: Notorious street gangster nabbed
Substance:
* Elements of the Regional Narcotics Command ( Narcom ) in Southern Mindanao arrested members of two notorious youth groups Selgens and Badfish on 9/3/99.

Date: 14 June 1999
Newspaper: Sun Star
Headline: Drug pushers don’t have human rights. Duterte
Substance:
* Duterte maintained that once a person became involved in drugs, he not only became a potential criminal, but had already become a criminal.

Date: 8 August 1999
Newspaper: Today
Headline: Executives clash over ‘secret marshal’ plan
Substance:
* Two mayors De Guzman of Davao City and Rey Uy of Tagum city stated that they were in favor of deploying marshals to allow the government to snoop into the, underworld and detect their plans.
*National government agencies, including the Internal Affairs Service of the National Police cautioned against such a move as it was felt that it would lead to abuses in civil rights and create mistrust and division among the citizens.

Date: 30 August 1999
Newspaper: Sun Star
Headline: Photo
Substance:
* A photograph of two minors picked up as part of simultaneous police raids carried out by police in Davao. A second photo show De Guzman examining sachets of Shabu seized in the raids,

Date: 15 October 1999
Newspaper: Mindanao Times

Headline: Editorial: Satan’s Blood
Substance:
* It takes up Councilor Rene Galope argument regarding the City Council’s decision to approve another Supplemental Budget of P47.7 million, more than P20 million of which is allotted for espionage, to maintain peace and stability in Davao.
* Galope, vice chair on the council’s Committee on Peace and Public safety referred to the P62 million peace and order and intelligence budget as the ‘blood of Satan.’ He highlighted the lack of success and claimed that the ‘intelligence apparatus ‘is malfunctioning.’
* The editorial stresses the need for expenditure on dedicated policemen and barangay enforcers and not on ‘James Bond’ tactics.

Attached are, the supporting news articles as Annex “G” hereof.

10.4 That the defendants letter contained no more than what was already published and circulated in similar letters, appeals and petitions and even published in newspapers. He himself received two of these petitions and based his letter on them. The matters contained therein have not been disputed or denied by Mayor De Guzman and he did not act against any of these groups but he singled out the defendant who wrote similar content but with more robust style. Attached hereto are clippings from newspapers as Annex “H” hereof.

10.5 Thus all of these documents indicate that the respondent was writing about known facts, that the letter of defendant did not contain any material that was false, untrue or known to be false or untrue. Further evidence that one of the street youth shot, dead in cold blood was a minor is attested to by the fact that the birth certificate attests to his age ( please refer to Annex “A”). Likewise the testimony in the sworn affidavit of the street youth who escaped from the scene of the shooting is hereby attached together with the official police report that testifies that such shootings did take place. All this attesting to the truth of the matter contained in the letter of the respondent. Attached hereto is the police blotter and the affidavit of the witness as Annexes “I”.

10.6 While the defendant wrote only the truth and did not impute or accuse the complainant of any wrong doing and wrote only about a shocking violation of human rights by unknown persons of a secret marshal or vigilante group the weight of law is still heavily weighed on the side of the defendant because what the law grants in a more grievous circumstance, all the more does it apply in a lesser circumstance.

10.7 For the sake of argument even if the complainant construes the letter of the defendant to be an implied criticism of omission by his failure to perform his official duty, even then the truth would still be the solid bulwark of defense against libel. This is the sense and meaning of Art. 361 of the Revised Penal Code;

“Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against government employees with respect to facts related to the discharge of their official duties. In such cases if the defendant proves, the truth of the imputation made by him, he shall be acquitted.” (emphasis supplied)

“In every criminal Prosecution for libel, the truth may be given in evidence to the, court and if it appears that the matter charged as libelous is true and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted.” (emphasis supplied)

11. That respondents were disturbed by the TODAY report and moved by the letter appealing for help from Kabiba and Tambayan in Davao and the report that the minor who had witnessed the shooting and had been harassed was able to see one of the suspected vigilantes walking about City Hall, it is only reasonable, based on the reports coming from reputable and credible sources to conclude that someone in the administration could possibly and even allegedly gave tacit approval to the vigilantes since one of their members who had actually done the shooting was freely and unafraid to walk around the premises.

12. That there was no malicious motive on behalf of the defendant. Based on these reported events Fr. Shay Cullen believed it to be his moral and social duty, by virtue of his office and as a religious leader, and advocate for children’s and youth rights, and in good conscience was moved to write a petition letter to the mayor, call on others to support that appeal, and that in no way accused the mayor of any involvement in the crime or even implied that he was behind the vigilante group. It is the mayor’s misunderstanding that led him to that conclusion.

13. That the statements in the letter of respondent Fr. Shay Cullen was based on known facts, demonstrated to he true and correct and that his letter was bringing these realities to the attention of the complainant as it was his responsibility to act on the information and not to be held liable for that act as Article 361 of the Revised Penal Code states as quoted above.

13.1 That the complainant, Mayor de Guzman, misunderstood the intention and the contents of the letter and the urgency of the appeal. He misread the contents thinking that it was against him and incorrectly concluded that it defamed him, when in fact it was alerting him to an urgent situation where human rights of street children and youth had been violated by an alleged vigilante death squad and informing him that violence against children is an abiding and urgent concern of the international community supporting the Convention on the Rights of the Child of which the Philippines is a signatory.

14. That as an indication of his haste and and failure to appreciate the true contents and purpose of the letter of the respondent he even misread the date of the letter saying in his sworn affidavit that the acts complained of were committed sometime on September 8, 1999. (affidavit of Mayor De Guzman 3.,a) whereas the original signed letter of the defendant is in fact dated 29 August 1999 and sent to the mayor by DHL courier service on September 2 1999 received in his office September 4,1999 at exactly 9.48 AM by a certain E. Rafton at Davao City Hall. Attached hereto is the letter of Fr. Shay to Mayor De Guzman and the DHL delivery receipt as Annex “J” and Annex “K” respectively.

15. That the Mayor’s affidavit of complaint is not accompanied by a true copy of the original two page letter signed by Fr. Cullen. But strangely, the one annexed to the affidavit complaint of mayor de Guzman is an unsigned single page with only the text of the defendant’s letter. This is not even a true copy of the original letter signed by the defendant Fr.Shay Cullen.

16. That a second copy of the said letter of Fr.Shay Cullen, and with accompanying e-mail messages concerning the appeal was sent to the same address by DHL September 24, 1999, and delivered on September 25 at 9.50 AM and received by a certain E. Rañon. Attached is the DHL receipt as Annex “L” hereof.

ARGUMENT : THE ACT WAS FOR GOOD-AND JUSTIFIABLE REASONS.

17. That the complainant, Mayor de Guzman was clearly
confused and unfortunately misunderstood the request for action protecting human rights as an accusation against him. He incorrectly thought he was being accused of coddling the vigilante killers of the street youth and wrongly thought he was being accused of dereliction or omission of duty in not acting against them. The defendant flatly deny that there was any such allegation or intention to link him to such criminal actives. That the defamation is all in his imagination and emotions not in reality.

18. That the letter makes no allegation against the mayor or implies that he was coddling murderers of street children, as he claims. The contents of the letter is based on the truth and it was sent in the course of the respondent doing his moral and social duty and for good motives and justifiable ends. As stated in the letter of Fr. Shay Cullen ” It is your duty to bring them to justice for the murder of the children.” Please refer to Annex “K” parg. 7. Art.361 Revised Penal Code states.

“In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true and moreover that it was published with good motives and for justifiable ends, the defendants shall be acquitted.” (emphasis supplied)

19. That the complainant, Mayor De Guzman, failed to understand that the nature of Human Rights Advocacy is that letters of appeal and protest are almost at all times addressed to public figures who are in positions of authority and power with the responsibility and paramount duty to investigate violations of human rights and prevent the same from occurring again.

ARGUMENT : THAT LIBEL CASES SHOULD NOT BE USED AS A WEAPON TO INTIMIDATE OR SILENCE CRITICS

20. That it is well known that advocacy campaigns and appeals demanding official action to redress human rights violations are frequently shunned and disliked by people in authority. The letter of the respondent is the voice of the powerless crying out to the powerful. It is giving vent to the sufferings of the oppressed to their elected officials, it is the legitimate democratic act of the underprivileged appealing, through their advocates, to the privileged rulers for justice, so they can win by their appeals, freedom from fear and harassment and from the threat of death and injury and as such it is an exercise of free expression.

21. That a most basic right of the human person is to cry out for justice to the authorities. This freedom of expression is a constitutional right of every human person. This being the case a libel action should not be used by persons of authority as a tool to intimidate, curtail, restrict or suppress the most fundamental freedom to ask for the redress of a wrong from those with the duty and obligation to make such redress.

22. In fact, this being the case, a wayward government official can wrap himself in the cloak of immunity from criticism or challenge by dubbing every unwelcome communication about him, every petition asking him to do his duty, as defamatory by filing libel cases. Especially being a powerful public figure with the means and the influence, such officials could use libel as a weapon to punish and subdue his critics, manipulate the system to their advantage. Then the law would be aiding and abetting the growth of tyranny, the abuse of power and open the flood gates to graft and corruption and could go on unabated without fear of exposure, criticism and protest. In this instance, the libel case seeks to punish and intimidate the respondent for making his petition and thus frighten off others from doing likewise and to distract and misdirect the media’s attention from his own shortcomings and failures to bring the killers to justice and deflect criticism for failures.

ARGUMENT A PLEA FOR JUSTICE IS A DEMOCRATIC EXERCISE OF THE CONSTITUTIONAL RIGHT OF FREEDOM OF EXPRESSION AND DEFENDANT SHOULD NOT TO BE PENALIZED FOR EXERCISING THAT RIGHT BY THE USE OF THE LAW ITSELF.

23. Advocates of children’s rights, journalists, publishers social and media commentators, oppositionists, without the financial means to answer such a barrages of libel suits, would be subdued and muted and intimidated. The end result would be a drastic denial of the freedom of expression, a barrier to the open and uninhibited flow of opinion and commentary. Libel would become the gag and binding rope of the innocent who speak their minds and hearts in defense of human rights.

23.1 Therefore it follows, as night follows day, that the appeal contained in the letter of the defendant, is an act of free expression, protected by the constitution and as such is privileged that is to say, immune from claims of libel.

24. It is an established truism and principle that they who seek justice and the righting of wrongs, ought not to be punished for doing what is clearly true and right. Supporting this argument the Supreme Court has this to say:

In Manuel V. Paño,172 SCRA 225 Supreme Court Justice Isagani A. Cruz ruled on a case wherein a lawyer was charged with libel by the government authorities for publicly protesting their arbitrary acts. He dismissed the libel charges against the lawyer and concluded :

“It would be a sad day if for donouncing venality in the government, the citizen could be called to task and be himself punished on the ground of malicious defamation. If every accuser were himself to be accused for discharging his duty as he sees it, then will the wrongdoer have been granted in effect, and by this court no less, an undeserved immunity for his misdood or omissions.”

In Vasquez V. Court of Appeals, G.R. No.118971 promulgated September 15, 1999 the Supreme Court with unanimous concurrences ruled that

” The constitutional right of the freedom of speech and expression is designed to protect the human person’s right to appeal and demand justice, to right a wrong, to ask for protection, peace and order. A libel action, the very law designed to protect honor, character and reputation, should not be the instrument to violate this constitutional right. The law itself would thereby become the means by which fundamental rights are donled,  whereas the law is the- moans by which they are protected.”

25. A libel action ought not to be a ploy to suppress freedom of speech by prior restraint, deterrent or suppression of advocacy for human rights by legitimate forms of protest and appeal for justice. The free flow of ideas, thoughts and expression especially those of human rights advocates must have the utmost freedom and access to public figures with their lawful requests and appeals and the right to ask others to support and join their appeal. This too is at the heart of democracy.

26. That the letter of the respondent is an act of the freedom of expression and as an appeal for justice it is a fundamental exercise of democracy. As such it ought not to be restricted and curtailed by a libel action.

THE ARGUMENT FREE FROM MALICIOUS INTENT.

27. That there is nothing malicious in the said letter of the defendant. The complainant cannot prove that the plea and petition letter came from a person with a malicious intent nor from a person who has a grudge, a grievance from a previous misunderstanding or clash with the complainant, it came from Fr.Shay Cullen who is no enemy, a political opponent, or even a frequent social critic of the complainant. Complainant must show evidence, that is a basis and a motive for claiming that the defendant acted in malice. He has failed to do so in his complaint.

28. That Fr. Cullen has never met the complainant, neither has he communicated with him on any other issue, this letter is the one and only communication with the complainant malicious intent could not be present without some reasonable explanation for such malice. In fact a malicious act is reasonably expected to stem from a desire for revenge because of some a previous grudge but there is none and complaint cannot show any. So there is nothing malicious in the defendant joining other NGOs in writing his petition to the mayor to act on behalf of human rights.

29. For an act to be judged malicious, there must be proof of intent to harm another, the act must be done without just cause or reason, and one that will result in harm to another. None of those have been shown by the complainant to be present in the letter of the defendant, that is because there was no reason for malicious feeling, ill will, hatred or hostility against him.

29.1 That the complainant attributes to the defendant words and phrases that might imply malicious feeling or intent but these words and statements do not appear anywhere in the letter of the defendant.

29.2 It is clear and apparent that the letter of the defendant refers to the existence of a vigilante group, death squad, or secret marshals.

” the evidence is clear, children are being murdered on the streets by an organized squad of motorcycle riding gunmen” letter of defendant.

30. The truth of this statement has been established however it is not true that the complainant has been accused of being behind this gang who shot the street children even though the newspaper quoted him as being in favor of secret marshals. The complainant has to produce proof of such an accusation.

30.1 Because of the failure of the complainant to find any real, libelous or defamatoty material in the defendant’s letter, he constructed his own interpretation of the letter to make it appear defamatory. Judgment must be rendered on the actual written words of the defendant’s letter not the complainant’s interpretation of it or what hethinks the ordinary public might think it means.

30.2 The complainant had rewritten the defendant’s words. He is exercising his imagination by trying to make the actual words appear libelous and defamatory when he claims that this is the plain and ordinary sense in which the public would understand it:

” I, as Mayor of Davao City, harbor vigilantes out to murder street children and the killing of malnourished, abandoned, vulnerable, defenseless street children by organized crime of motorcycle riding gunmen is a daily occurrence in Davao city under my administration; “ Affidavit of the complainant.

31. Not only are these words not used in the letter but it is highly speculative if the public, would understand it in this way. What constitutes libel are the very words themselves used and which are complained of. Here the libel is said to occur because of what the complainant imagines, supposes and assumes the public would understand from the letter. The complainant cannot possibly know what the public would understand from the letter other than that which the words simply convey and none of them are remotely similar to the interpretation of the complainant.

31.1 The defendant strongly objects to this interpretation, it is self serving, has no relation with the words actually written and are in fact a fabrication. How can the defendant be held liable for the sentences he never wrote but are composed by the complainant ?

32. in fact the letter makes it clear that the mayor had no control over the vigilante group and therefore could not harbor them, that is why the defendant stated that he needed to bring the matter to the attention of another body to highlight the human rights abuses and get support for the victims. The letter says…

” I am appealing to the International community and the Presidential Committee for the Protection of Children, for direct action to stop these murders since you are unable to do so. “

Please refer to Annex “K” parg. 6

33. That this makes it abundantly clear that the respondents considered the mayor to have no personal connection with the vigilante group and he was at that time unable to stop them. The letter appealed to him to act in such a manner such as starting an official investigation, run after the suspects and not after the defendant.

34. That the letters from the supporters who used the phrases “shameful”, ‘heinous” and “unequivocally barbaric” is clearly in relation to the vigilante action of shooting the street youths. These comments do not refer to the Mayor and cannot constitute libel since they are not imputed to him, were not written by the respondent but by others, they refer to the act of the vigilante group.

SUMMARY of ARGUMENTS

35. In summary, the matters stated in the letter of Fr.Shay Cullen have been shown to be true and not a fabrication. They were written with an honest, justifiable, good motive and reason, namely to prevent more shooting and harassment of youth and children.

36. That the libel case was brought only against the defendant when others had made similar letters of petition and media publicized similar appeals and pleas. That its aim is to punish and silence the defendant for his temerity in writing in a frank and outspoken way and as a warning to intimidate others and deter them from criticizing the complainant.

37. That the complainant being a public figure of influence is the proper authority figure to address with such letters of appeal for justice but that the libel case is being used as a device to dissuade intimidate and stifle outspokenness and that such use is an unconstitutional restraint on the freedom of speech and lawful appeals. For such a libel case to prosper would be an undemocratic denial of a constitutional right.

38. That the complainant failed to show proof and convincing
evidence that there was substantial untruth in the letter or that
there was malice, in fact the contents of the letter show
otherwise.

39. That the phrases and words complained off by the complainant are not the original words of the letter of defendant but are a paraphrase and interpretation and a speculation as to their ordinary meaning to the point of complaining about something that was not written in the text of the letter but which was imagined to be the meaning.

IN WITNESS HEREOF, I here hereunto set my hand this day 22 of November 1999 at Olongapo City, Philippines.

FR. SHAY CULLEN
Affiant

SUBSCRIBED AND SWORN to before me this 22nd day of November 1999. I HEREBY CERTIFY that I personally interviewed and examined the herein Affiant and am satisfied that they voluntarily executed and understood the foregoing statement.

DORENTINO FLORESTA
Zambales Provincial Prosecutor
and Special Prosecutor for
Child Abuse Cases in Olongapo City
and Zambales

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