THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. FELIPE BUSTOS ET AL., DEFENDANTS AND APPELLANTS.

This appeal presents the specific question of whether or not the defendants
and appellants are guilty of a libel of Roman Punsalan, justice of the peace of
Macabebe and Masantol, Province of Pampanga. The appeal also submits the larger
question of the attitude which the judiciary should take in interpreting and
enforcing the Libel Law in connection with the basic prerogatives of freedom of
speech and press, and of assembly and petition. For a better understanding, the
facts in the present appeal are first narrated in the order of their occurrence,
then certain suggestive aspects relative to the rights of freedom of speech and
press and of assembly and petition are interpolated, then the facts are tested
by these principles, and, finally, judgment is rendered.

First, the facts. In the latter part of 1915, numerous citizens of the
Province of Pampanga assembled, and prepared and signed a petition to the
Executive Secretary through the law office of Crossfield & O’Brien, and five
individuals signed affidavits, charging Roman Punsalan, justice of the peace of
Macabebe and Masantol, Pampanga, with malfeasance in office and asking for his
removal. Crossfield & O’Brien submitted this petition and these affidavits
with a complaint to the Executive Secretary. The petition transmitted by these
attorneys was signed by thirty-four citizens apparently of considerable
standing, including councilors and property owners (now the defendants), and
contained the statements set out in the information as libelous. Briefly stated
the specific charges against the justice of the peace were:

1. That Francisca Polintan, desiring to make complaint against Mariano de los
Reyes, visited the justice of the peace, who first told her that he would draw
up the complaint for P5; afterwards he said he would take P3 which she paid;
also kept her in the house” for four days as a servant and took from her two
chickens and twelve “gandus;”

2. That Valentin Sunga being interested in a case regarding land which was on
trial before the justice of the peace, went to see the justice of the peace to
ascertain the result of the trial, and was told by the justice of the peace that
if he wished to win he must give him P50. Not having this amount, Sunga gave the
justice nothing, and a few days later was informed that he had lost the case.
Returning again to the office of the justice of the peace in order to appeal,
the justice told him that he could still win if he would pay P50;

3. That Leoncio Quiambao, having filed a complaint for assault against four
persons, on the day of the trial the justice called him over to his house, where
he secretly gave him (Quiambao) P30; and the complaint was thereupon
shelved.

The Executive Secretary referred the papers to the judge of first instance
for the Seventh Judicial District requesting investigation, proper action, and
report. The justice of the peace was notified and denied the charges. The judge
of first instance found the first count not proved and counts 2 and 3
established. In view of this result, the judge, the Honorable Percy M. Moir, was
of the opinion “that it must be, and it is hereby, recommended to the
Governor-General that the respondent be removed from his position as justice of
the peace of Macabebe and Masantol, Province of Pampanga, and it is ordered that
the proceedings had in this case be transmitted to the Executive Secretary.”

Later the justice of the peace filed a motion for a new trial; the judge of
first instance granted the motion and reopened the hearing; documents were
introduced, including a letter sent by the municipal president and six
councilors of Masantol, Pampanga, asserting that the justice of the peace was
the victim of prosecution, and that one Agustin Jaime, the auxiliary justice of
the peace, had instituted the charges for personal reasons; and the judge of
first instance ordered a suppression of the charges against Punsalan and
acquitted him of the same. Attorneys for complainants thereupon appealed to the
Governor-General, but whether the papers were forwarded to the Governor-General
as requested the record does not disclose.

Criminal action against the petitioners, now become the defendants, was
instituted on October 12, 1916, by virtue of the following information:

“That on or about the month of December, 1915, in the municipality of
Macabebe, Pampanga, P. I., the said accused, voluntarily, illegally, and
criminally and with malicious intent to prejudice and defame Mr. Roman Punsalan
Serrano who was at said time and place justice of the peace of Macabebe and
Masantol of this province, wrote, signed, and published a writing which was
false, scandalous, malicious, defamatory, and libelous against the justice of
the peace Mr. Roman Punsalan Serrano, in which writing appear among other things
the following:

” ‘That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of
Macabebe, on account of the conduct observed by him heretofore, a conduct highly
improper of the office which he holds, is found to be a public functionary who
is absolutely unfit, eminently immoral and dangerous to the community, and
consequently unworthy of the office.

” ‘That this assertion of the undersigned is evidenced in a clear and
positive manner by facts so certain, so serious, and so denigrating which appear
in the affidavits attached hereto, and by other facts no less serious, but which
the undersigned refrain from citing herein for the sake of brevity and in order
not to bother too much the attention of your Honor and due to lack of sufficient
proof to substantiate them.

” ‘That should the higher authorities allow the said justice of the peace of
this town to continue in his office, the protection of the rights and interests
of its inhabitants will be illusory and utopic; rights and interests solemnly
guaranteed by the Philippine Bill of Rights, and justice in this town will not
be administered in accordance with law.

” ‘That on account of the wrongful discharge of his office and of his bad
conduct as such justice of the peace, previous to this time, some respectable
citizens of this town of Macabebe were compelled to present an administrative
case against the said Roman Punsalan Serrano before the judge of first instance
of Pampanga, in which case there were made against him various charges which
were true and certain and of different characters.

” ‘That after the said administrative case was over, the said justice of the
peace, far from changing his bad and despicable conduct, which h^s roused the
indignation of this town of Macabebe, subsequently performed the acts above-
mentioned, as stated in the affidavits herewith attached, as if intending to
mock at the people and to show his mistaken valor and heroism.’

“All of this has been written and published by the accused with the
deliberate purpose of attacking the virtue, honor, and reputation of the justice
©f the peace, Mr. Roman Punsalan Serrano, and thus exposing him to public
hatred, contempt, and ridicule. All contrary to law.”

It should be noted that the information omits paragraphs of the petition
mentioning the investigation before the judge of first instance, the affidavits
upon which based and the concluding words, “To the Executive Secretary, through
the office of Crossfield & O’Brien.”

The Honorable Percy M. Moir found all the defendants, with the exception of
Felix Fernandez, Juan S. Alfonso, Restituto Garcia, and Manuel Mallari, guilty
and sentenced each of them to pay a fine of P10 and one thirty-second part of
the costs, or to suffer subsidiary imprisonment in case of insolvency. New
attorneys for the defense, coming into the case, after the handing down of the
decision, filed on December 16, 1916, a motion for a new trial, the principal
purpose of which was to retire the objection interposed by the then counsel for
the defendants to the admission of Exhibit A consisting of the entire
administrative proceedings. The trial court denied the motion. All the
defendants, except Melecio S. Sabado and Fortunato Macalino appealed making the
following assignments of error:

“1. The court erred in overruling the motion of the convicted defendants for
a new trial.

“2. The court erred in refusing to permit the defendants to retire the
objection inadvertently interposed by their counsel to the admission in evidence
of the expediente administrativo out of which the accusation in this
case arose.

“3. The court erred in sustaining the objection of the prosecution to the
introduction in evidence by the accused of the affidavits upon which the
petition forming the basis of the libelous charge was based.

“4. The court erred in not holding that the alleged libelous statement was
unqualifiedly privileged.

“5. The court erred in assuming and impliedly holding that the burden was on
the defendants to show that the alleged libelous statements were true and free
from malice.

“6. The court erred in not acquitting the defendants.

“7. The evidence adduced fails to show the guilt of the defendants beyond a
reasonable doubt This is especially true of all the defendants, except Felipe
Bustos, Dionisio Mallari, and Jose T. Reyes.”

We have thus far taken it for granted that all the proceedings,
administrative and judicial, were properly before this court. As a matter of
fact counsel for defendants in the lower court made an improvident objection to
the admission of the administrative proceedings on the ground that the
signatures were not identified and that the same was immaterial, which objection
was partially sustained by the trial court. Notwithstanding this curious
situation by reason of which the attorney for the defense attempted to destroy
through his objection the very foundation for the justification of his clients,
we shall continue to consider all the proceedings as before us. Not indicating
specifically the reason for this action, lat the following be stated: The
administrative proceedings were repeatedly mentioned during the trial. These
proceedings were the basis of the accusation, the information, the evidence, and
the judgment rendered. The prosecution cannot be understood without knowledge of
anterior action. Nothing more unjust could be imagined than to pick out certain
words which standing by themselves and unexplained are libelous and then by
shutting off all knowledge of facts which would justify these words, to convict
the accused. The records in question are attached to the rollo, and
either on the ground that the attorneys for the defense retired the objection to
the introduction of the administrative proceedings by the prosecution, or that a
new trial should have been had because under section 42 of the Code of Criminal
Procedure “a case may be reopened on account of errors at law committed at the
trial,” or because of the right of this court to call in such records as are
sufficiently incorporated into the complaint and are essential to a
determination of the case, or finally, because of our conceded right to take
judicial notice of official action in administrative cases and of judicial
proceedings supplemental to the basis action, we examine the record as before
us, containing not alone the trial for libel, but the proceedings previous to
that trial giving rise to it. To this action, the Government can not complain
for it was the prosecution which tried to incorporate Exhibit A into the
record.

With these facts pleading justification, before testing them by certain
principles which make up the law of libel and slander, we feel warranted in
seizing the opportunity to intrude an introductory and general discussion of
freedom of speech and press and assembly and petition in the Philippine Islands.
We conceive that the time is ripe thus to clear up certain misapprehensions on
the subject and to place these basic rights in their proper light.

Turning to the pages of history, we state nothing new when we set down that
freedom of speech as cherished in democratic countries was unknown in the
Philippine Islands before 1900. A prime cause for revolt was consequently ready
made. Jose Rizal in “Filipinas Despues de Cien Años” (The Philippines a Century
Hence, pages 62 et seq.) describing “the reforms sine quibus
non” which the Filipinos insist upon, said:

“The minister, * * * wno wants his reforms to be reforms, must begin by
declaring the press in the Philippines free and by instituting Filipino
delegates.”

The Filipino patriots in Spain, through the columns of “La Solidaridad” and
by other means invariably in exposing the wants of the Filipino people demanded
“liberty of the press, of cults, and of associations.” (See Mabini,
La Revolution Filipina.) The Malolos Constitution, the work of the
Revolutionary Congress, in its Bill of Rights, zealously guarded freedom of
speech and press and assembly and petition.

Mention is made of the foregoing data only to deduce the proposition that a
reform so sacred to the people of these Islands and won at so dear a cost,
should now be protected and carried forward as one would protect and preserve
the covenant of liberty itself.

Next comes the period of American-Filipino cooperative effort. The
Constitution of the United States and the State constitutions guarantee the
right” of freedom of speech and press and the right of assembly and petition. We
are therefore, not surprised to find President McKinley in that Magna Charta of
Philippine Liberty, the Instruction to the Second Philippine Commission, of
April 7,1900, laying down the inviolable rule “That no law shall be passed
abridging the freedom of speech or of the press or of the rights of the people
to peaceably assemble and petition the Government for a redress of
grievances.”

The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law,
the Act of Congress of August 29, 1916, in the nature of organic acts for the
Philippines, continued this guaranty. The words quoted are not unfamiliar to
students of Constitutional Law, for they are the counterpart of the first
amendment to the Constitution of the United States, which the American people
demanded before giving their approval to the Constitution.

We mention the foregoing facts only to deduce the proposition never to be
forgotten for an instant that the guaranties mentioned are part and parcel of
the Organic Law—of the Constitution—of the Philippine Islands.

These paragraphs found in the Philippine Bill of Rights are not threadbare
verbiage. The language carries with it all the applicable jurisprudence of great
English and American Constitutional cases. (Kepner vs. U. S. [1904],
195 U. S., 100; Serra vs. Mortiga [1907], 204 U. S., 470.) And what are
these principles? Volumes would inadequately answer. But included are the
following:

The interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life may suffer under
a hostile and an unjust accusation; the wound can be assuaged with the balm of a
clear conscience. A public officer must not be too thin-skinned with reference
to comment upon his official acts. Only thus can the intelligence and dignity of
the individual be exalted. Of course, criticism does not authorize defamation.
Nevertheless, as the individual is less than the State, so must expected
criticism be born for the common good. Rising superior to any official or set of
officials, to the Chief Executive, to the Legislature, to the Judiciary—to any
or all the agencies of Government—public opinion should be the constant source
of liberty and democracy. (See the well considered cases of Wason vs.
Walter, 4 L. R. 4 Q. B., 73; Seymour vs. Butterworth, 3 F. & F.,
372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1.)

The guaranties of a free speech and a free press include the right to
criticize judicial conduct. The administration of the law is a matter of vital
public concern. Whether the law is wisely or badly enforced is, therefore, a fit
subject for proper comment. If the people cannot criticize a justice of the
peace or a judge the same as any other public officer, public opinion will be
effectively muzzled. Attempted terrorization of public opinion on the part of
the judiciary would be tyranny of the basest sort. The sword of Damocles in the
hands of a judge does not hang suspended over the individual who dares to assert
his prerogative as a citizen and to stand up bravely before any official. On the
contrary, it is a duty which every one owes to society or to the State to assist
in the investigation of any alleged misconduct. It is further the duty of all
who know of any official dereliction on the part of a magistrate or the wrongful
act of any public officer to bring the facts to the notice of those whose duty
it is to inquire into and punish them. In the words of Mr. Justice Gayner, who
contributed so largely to the law of libel. “The people are not obliged to speak
of the conduct of their officials in whispers or with bated breath in a free
government, but only in a despotism.” (Howarth vs. Barlow [1906], 113
App. Div., N. Y., 510.)

The right to assemble and petition is the necessary consequence of republican
institutions and the complement of the right of free speech. Assembly means a
right on the part of citizens to meet peaceably for consultation in respect to
public affairs. Petition means that any person or group of persons can apply,
without fear of penalty, to the appropriate branch or office of the government
for a redress of grievances. The persons assembling and petitioning must, of
course, assume responsibility for the charges made.

Public policy, the welfare of society, and the orderly administration of
government have demanded protection for public opinion. The inevitable and
incontestable result has been the development and adoption of the doctrine of
privilege.

“The doctrine of privileged communications 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.’ ” (Abbott vs. National Bank of
Commerce, Tacoma [1899], 175 U. S., 409, 411.)

Privilege is classified as either absolute or qualified. With the first, we
are not concerned. As to qualified privilege, it is as the words suggest a
prima facie privilege which may be lost by proof of malice. The rule is
thus stated by Lord Campbell, C. J.

“A communication made bona fide upon any subject-matter in which the
party communicating has an interest, or in reference to which he has a duty, is
privileged, if made to a person having a corresponding interest or
duty,.although it contained criminatory matter which without this privilege
would be slanderous and actionable.” (Harrison vs. Bush, 5 E. & B.,
344; 1 Jur. [N. SJ, 846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C. L.,
344.)

A pertinent illustration of the application of qualified privilege is a
complaint made in good faith and without malice in regard to the chLracter or
conduct of a public official when addressed to an officer or a board having some
interest or duty in the matter. Even when the statements are found to be false,
if there is probable cause for belief in their truthfulness and the charge is
made in good faith, the mantle of privilege may still cover the mistake of the
individual. But the statements must be made under an honest sense of duty; a
self-seeking motive is destructive. Personal injury is not necessary. All
persons have an interest in the pure and efficient administration of justice and
of public affairs. The duty under which a party is privileged is sufficient if
it is social or moral in its nature and this person in good faith believes he is
acting in pursuance thereof although in fact he is mistaken. The privilege is
not defeated by the mere fact that the communication is made in intemperate
terms. A further element of the law of privilege concerns the person to whom the
complaint should be made. The rule is that if a party applies to the wrong
person through some natural and honest mistake as to the respective functions of
various officials such unintentional error will not take the case out of the
privilege.

In the usual case malice can be presumed from defamatory words. Privilege
destroy that presumption. The onus of proving malice then lies on the plaintiff.
The plaintiff must bring home to the defendant the existence of malice as the
true motive of his conduct. Falsehood and the absence of probable cause will
amount to proof of malice. (See White vs. Nicholls [1845], 3
How., 266.)

A privileged communication should not be subjected to microscopic examination
to discover grounds of malice or falsity. Such excessive scrutiny would defeat
the protection which the law throws over privileged communications. The ultimate
test is that of bona fides. (See White vs. Nicholls
[1845], 3 How., 266; Bradley vs. Heath [1831], 12 Pick. [Mass.], 163;
Kent vs. Bongartz [1885], 15 R. L, 72; Street, Foundations of Legal
Liability, vol. 1, pp. 308, 309; Newell, Slander and Libel, various citations;
25 Cyc. pages 385 et seq.)

Having ascertained the attitude which should be assumed relative to the basic
rights of freedom of speech and press and of assembly and petition, having
emphasized the point that our Libel Law as a statute must be construed with
reference to the guaranties of our Organic Law, and having sketched the doctrine
of privilege, we are in a position to test the facts of this case with these
principles.

It is true that the particular words set out in the information, if said of a
private person, might well be considered libelous per se. The charges
might also under certain conceivable conditions convict one of a libel of a
government official. As a general rule words imputing to a judge or a justice of
the peace dishonesty or corruption or incapacity or misconduct touching him in
his office are actionable. But as suggested in the beginning we do not have
present a simple case of direct and vicious accusations published in the press,
but of charges predicated on affidavits made to the proper official and thus
qualifiedly privileged. Express malice has not been proved by the prosecution,
further, although the charges are probably not true as to the justice of the
peace, they were believed to be true by the petitioners. Good faith surrounded
their action. Probable cause for them to think that malfeasance or misfeasance
in office existed is apparent. The ends and the motives of these citizens—to
secure the removal from office of a person thought to be venal—were justifiable.
In no way did they abuse the privilege. These respectable citizens did not
eagerly seize on a frivolous matter but on instances which not only seemed to
them of a grave character, but which were sufficient in an investigation by a
judge of first instance to convince him of their seriousness. No undue publicity
was given to the petition. The manner of commenting on the conduct of tfte
justice of the peace was proper. And finally the charges and the petition were
submitted through reputable attorneys to the proper functionary, the Executive
Secretary. In this connection it is sufficient to note that justices of the
peace are appointed by the Governor-General, that they may be removed by the
Governor-General upon the recommendation of a Judge of First Instance, or on the
Governor-General’s own motion, and that at the time this action took place the
Executive Bureau was the office through which the Governor-General acted in such
matters. (See Administrative Code of 1917, sees. 203 and 229, in
connection with the cases of U. S. vs. Galeza [1915], 31 Phil, 365, and
of Harrison vs. Bush, 5 E. & B., 344, holding that where defendant
was subject to removal by the sovereign, a communication to the Secretary of
State was privileged.)

The present facts are further essentially different from those established in
other cases in which private individuals have been convicted of libels of public
officials. Malice, traduction, falsehood, calumny, against the man and not the
officer, have been the causes of the verdict of guilty. (See U. S.
vs. Sedano [1909], 14 Phil., 338, 339; U. S. vs. Contreras
[1912], 23 Phil., 513; U. S. vs. Montalvo [1915], 29 Phil., 595.)

The Attorney-General bases his recommendation for confirmation on the case of
the United States vs. Julio Bustos ([1909}, 13 Phil., 690). The Julio
Bustos case, the Attorney-General says, is identical with the Felipe Bustos
case, with the exception that there has been more publicity in the present
instance and that the person to whom the charge was made had less jurisdiction
than had the Secretary of Justice in the Julio Bustos case. Publicity is
immaterial if the charge against Punsalan is in fact a privileged communication.
Moreover, in the Julio Bustos case we find wild statements, with no basis in
fact, made against reputable members of the judiciary, “to persons who could
not. furnish protection.” Malicious and untrue communications are not
privileged. A later case and one more directly in point to which we invite
especial attention is United States vs. Galeza ([1915], 31 Phil., 365).
(Note also Yancey vs. Commonwealth [1909], 122 So. W.,
123.)

We find the defendants and appellants entitled to the protection of the rules
concerning qualified privilege, growing out of constitutional guaranties in our
bill of rights. Instead of punishing citizens for an honest endeavor to improve
the public service, we should rather commend them for their good citizenship.
The defendants and appellants are acquitted with the costs de officio.
So ordered.

Arellano, C. J., Johnson, Araullo, Street, and Fisher, JJ.,
concur.

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CONCURRING OPINION

CARSON, .J., concurring:

I concur.

I think it proper to observe, however, that in my opinion the
Attorney-General is entirely correct when he says that this case is
substantially identical with the former “Bustos case (The United States
vs. Bustos, 13 Phil. Rep., 690). I believe that a careful reading of
our decisions in these cases is sufficient to demonstrate that fact. The truth
is that the doctrine of the prevailing opinion in the former Bustos case has
long since been abandoned by this court; and in my opinion it would make for the
more efficient administration of the Libel Law in these Islands to say so, in so
many words. (Cf. U. S. vs. Sedano, [1909], 14 Phil. Rep., 338, 339; U.
S. vs. Contreras [1912], 23 Phil. Rep., 513; U. S. vs.
Montalvo [1915], 29 Phil. Rep., 595; and U. S. vs. Galeza [1915], 31
Phil. Rep., 365.)