MANILA (UPDATE) – A Department of Justice (DOJ) panel of prosecutors has found probable cause to charge lawyer Lorna Kapunan with 2 counts of slander over statements against University of Santo Tomas (UST) Faculty of Civil Law Dean and Divina Law managing partner Nilo Divina.
In separate resolutions both dated March 4, DOJ prosecutors indicted Kapunan for defamatory statements she allegedly made against Divina on two different interviews both aired on the ABS-CBN News Channel (ANC) in September and October 2017 regarding the cases of former Commission on Elections (Comelec) Chair Andres Bautista and the alleged hazing death of UST law student Horacio Castillo III.
Divina accused Kapunan of discussing the disbarment case filed by Patricia Paz Cruz-Bautista, the former Comelec chief's estranged wife, against him and 20 other lawyers from his law firm during an interview with ANC’s Early Edition on Sept. 26, 2017.
In the transcript of the interview quoted in the resolution, Kapunan explained that the basis of the disbarment complaint was the “humongous amounts” which Divina’s law firm allegedly gave Bautista by way of referral fees.
This was the prosecutors' basis to recommend filing a grave oral defamation or slander charge against Kapunan.
“Based on her interview, respondent Atty. Lorna P. Kapunan imputed that complainant Atty. Nilo T. Divina and his law office made humongous payments to the Comelec Chairman Andres Bautista to sway him to act in their supposed client’s favor,” the resolution said.
“The statements made by Atty. Lorna P. Kapunan during said interview were imputations of a crime which were made orally, publicly and maliciously and were all directed to the complainants,” it added.
In another complaint, Divina claimed Kapunan maliciously accused him of having recruited Castillo to join the Aegis Juris Fraternity, of meeting with members of the fraternity after the alleged hazing happened, and coddling fraternity members who took part in the initiation rites where Castillo died in September 2017.
Kapunan allegedly made such statements during her interview on ANC on Oct. 27, 2017. Divina is a member of the same fraternity.
“It would appear that respondent imputed the commission or violation of the Anti-Hazing Law (R.A. No. 8049) against the complainant by being the recruiter of Horacio Castillo and assuring the latter that there would be no physical activity or hazing,” the resolution said.
“The respondent also insinuated that complainant was obstructing the apprehension and prosecution of criminal offenders when he allegedly coddled the members of the Aegis Juris Fraternity members who participated during the hazing rites of Horacio Castillo when they went to the Dean’s house,” it said.
Grave oral defamation under Article 358 of the Revised Penal Code carries a penalty of up to 2 years and 4 months in prison for each count.
LIBEL, CYBERLIBEL COMPLAINTS DISMISSED
Both resolutions, however, dismissed libel and cyberlibel complaints against Kapunan and Cruz-Bautista because the element of publication was missing.
Publication is one of the four elements in the crime of libel, aside from defamatory imputation, identity of the person defamed and the existence of malice.
Prosecutors said Kapunan and Cruz-Bautista did not cause the publication of the allegedly defamatory remarks against Bautista through print media, broadcast media or online media, and no evidence was presented to prove they conspired with media outfits to publish the allegedly defamatory remarks.
They used the same reasoning to dismiss the libel and cyber libel complaints against Kapunan involving her statements on the Castillo case, saying she was not the first person “who first published, exhibited or caused the exhibition of the said alleged defamatory remarks in writing or by similar means.”
The two resolutions were signed by Senior Assistant State Prosecutor Rassendell Rex Gingoyon and Associate City Prosecutor Laurence Joel Taliping, and approved by OIC-Prosecutor General Richard Anthony Fadullon.
A third member of the panel, Senior Assistant State Prosecutor Olivia Laroza-Torrevillas, signed the resolution regarding Bautista but inhibited herself from the Castillo case.
In a phone call to ABS-CBN News Wednesday afternoon, Kapunan said "it is uncalled for for lawyers to sue each other if a lawyer is defending his/her client with zeal and is telling the truth."
She added that Divina's move opens the door for her and her clients to tell the truth in court, saying that in a slander case, truth is a defense.
She said she has appealed the resolutions of the panel of prosecutors with the Department of Justice via a petition for review.