Republic of the Philippines

Department of Justice
National Prosecution Service
OFFICE OF THE CITY PROSECUTOR
Meycauayan City, Bulacan

CLAUDINE ASPERA y AYORA,

Complainant, NPS Docket No. III-08-INV-19-D-00165
FOR: Libel

-versus-

SHARLENE CALLADO y VILLARIN,

Respondent.
x ---------------------------------------------------- x

REJOINDER - AFFIDAVIT

I, SHARLENE CALLADO, of legal age, married with residence at Phase

3, Package 1, Block 12 Lot 12, Bagong Silang, Caloocan City and the
respondent in above-entitled case, by way of Rejoinder-Affidavit, under oath
declare:

THE CRIME CHARGE

Article 353 of the Revised Penal Code provides:

Art. 353. Definition of libel. — A libel is a public and

malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act or omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person or to blacken the
memory of one who is dead.

For an imputation then to be libelous, the following

requisites must concur:

(a) it must be defamatory;

(b) it must be malicious;

 (c) it must be given publicity; and

(d) the victim must be identifiable.

Any of the imputations covered by Article 353 is

defamatory and, under the general rule laid down in Article 354,
every defamatory imputation is presumed to be malicious, even
if it be true; if no good intention and justifiable motive for
making it is shown. There is malice when the author of the
imputation is prompted by personal ill-will or spite and speaks
not in response to duty but merely to injure the reputation of
the person who claims to have been defamed. Truth then is not
a defense, unless it is shown that the matter charged as libelous
was made with good motives and for justifiable ends.

Article 361 of the Revised Penal Code provides, in part, as

follows:

Art. 361. Proof of truth. — 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 defendant shall be acquitted.

However, malice is not presumed and must, therefore, be

proved, under the following exceptions provided for in Article
354, viz.:

1. A private communication made by any person to

another in the performance of any legal, moral or social duty;
and

2. A fair and true report, made in good faith, without

any comments or remarks; of any judicial legislative or other
official proceedings which are not of confidential nature, or of
any statement, report or speech delivered in said proceedings,
or of any other act performed by public officers in the exercise
of their functions.

The privileged character of these communications is not

absolute, but merely qualified since they could still be shown to
 be malicious by proof of actual malice or malice in fact. The
burden of proof in this regard is on the plaintiff or the
prosecution.1

1. Complainant’s Reply-Affidavit is just an iteration of her Complaint-

Affidavit which was accordingly rebutted in the Counter-Affidavit of herein
Respondent. No new matters were alleged in the Reply.

2. Nonetheless, Respondent will supplement its arguments and

discussions in her Counter-Affidavit to dispute the claims of the complainant.

3. Complainant’s denial to all the allegations of herein Respondent that

the former had an illicit relationship with the husband of the latter is purely
self-serving and without any factual basis.

Attached herewith is the only copy of the Complainant’s message

through Viber to the Respondent’s husband as admitted by the latter as
“Annex 11”.

4. Such denial is properly controverted by no less than the husband of

the Respondent Mr. Norman Benjamin Callado, through the latter’s
Affidavit attached to Respondent’s Counter-Affidavit. Moreover, to
extensively refute all the allegations of the Complainant in her Reply-
Affidavit, Norman Benjamin Callado executed a Supplemental-Affidavit to
further corroborate and explicated his statements on his own Affidavit.

Attached herewith is the Supplemental-Affidavit of Mr. Norman

Benjamin Callado as “Annex 12” and made an integral part hereof.

5. Complainant alleged that Respondent willfully, unlawfully, feloniously

and maliciously texted Ms. Steffi Choa, Store Manager of UCC Clockwork
Vertis North to impute defamatory acts that caused damage to her
reputation as an employee and as a woman is clearly no leg to stand on.

6. First, the message was a chat message from Facebook Messenger and
addressed only to Ms. Steffi Choa2 and not a text message as alleged by the
Complainant.

1
Dr. Merle A. Alonzo vs Court of Appeals Et. Al. G.R. No. 110088, February 1, 1995
2
Annex 2 in Respondent’s Counter-Affidavit
 Second, the said chat message was not an imputation of any crime
against the Complainant nor tends to cause dishonor, or discredit her
reputation as an employee or as a woman.

It is crystal clear that the said acts of the Respondent do not in any
manner satisfy or completes all the elements of the crime of libel as provided
by law and jurisprudence.

As stated above an imputation then to be libelous, the following

requisites must concur:

(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.3

However, applying the same in the case at bar, not all elements of the
crime of libel exist in order to charge herein Respondent.

The element of malice and publicity are lacking.

Malice connotes ill will or spite and speaks not in response

to duty but merely to injure the reputation of the person
defamed, and implies an intention to do ulterior and
unjustifiable harm. Malice is bad faith or bad motive. It is the
essence of the crime of libel.4

In this case, Respondent’s chat messages were sent only to inform the
store manager about her request to assign a different accountant other than

3
DIONISIO LOPEZ v. PEOPLE OF THE PHILIPPINES, G.R. No. 172203, February 14, 2011
4
Borjal, v. Court of Appeals, 361 Phil. 1, 24 (1999). (citations omitted)
the complainant. It is very clear that Respondent has no malice whatsoever
when the latter sent the said chat messages to the store manager.

In view of Complainant’s averments that Respondent’s imputed

several defamatory remarks that she (complainant) and the respondent’s
husband Norman Benjamin Callado are kissing and having an illicit affair with
each other despite the fact that both of them have respective partners, such
acts are not malicious.

As already stated by the Respondent in her Counter-Affidavit, the

imputation of the said acts was not made through ill-will or spite, nor to
injure the reputation of the complainant, nor implies an intention to do
ulterior and unjustifiable harm but was made because of the admission of
the Respondent’s husband.

“Although all the elements must concur, the defamatory

nature of the subject printed phrase must be proved first
because this is so vital in a prosecution for libel. Were the words
imputed not defamatory in character, a libel charge will not
prosper. Malice is necessarily rendered immaterial.”5

“An allegation is considered defamatory if it ascribes to a

person the commission of a crime, the possession of a vice or
defect, real or imaginary or any act, omission, condition, status
or circumstance which tends to dishonor or discredit or put him
in contempt or which tends to blacken the memory of one who
is dead. To determine "whether a statement is defamatory, the
words used are to be construed in their entirety and should be
taken in their plain, natural and ordinary meaning as they would
naturally be understood by persons reading them, unless it
appears that they were used and understood in another sense."6

Moreover, "[a] charge is sufficient if the words are

calculated to induce the hearers to suppose and understand that
the person or persons against whom they were uttered were
guilty of certain offenses or are sufficient to impeach the honesty,

5
DIONISIO LOPEZ v. PEOPLE OF THE PHILIPPINES, G.R. No. 172203, February 14, 2011
6
Buatis, Jr. v. People, G.R. No. 142509, March 24, 2006, 485 SCRA 275, 286.
 virtue or reputation or to hold the person or persons up to public
ridicule."7

“In Tawney vs. Simonson, Whitcomb & Hurley Co. (109

Minn., 341), 27 Phil. 52 (1914). the Supreme Court had the
following to say on this point: "In determining whether the
specified matter is libelous per se, two rules of construction are
conspicuously applicable: (1) That construction must be adopted
which will give to the matter such a meaning as is natural and
obvious in the plain and ordinary sense in which the public would
naturally understand what was uttered. (2) The published matter
alleged to be libelous must be construed as a whole."

“In applying these rules to the language of an alleged libel,

the court will disregard any subtle or ingenious explanation
offered by the publisher on being called to account. The whole
question being the effect the publication had upon the minds of
the readers, and they not having been assisted by the offered
explanation in reading the article, it comes too late to have the
effect of removing the sting, if any there be, from the words used
in the publication.”8

“Any of the imputations covered by Article 353 is

defamatory; and, under the general rule laid down in Article 354,
every defamatory imputation is presumed to be malicious, even if
it be true, if no good intention and justifiable motive for making it
is shown. Thus, when the imputation is defamatory, the
prosecution need not prove malice on the part of petitioner
(malice in fact), for the law already presumes that petitioner’s
imputation is malicious (malice in law).”9

Respondent’s chat messages as construed in its entirety was not made

to cause any disrespect nor tends to dishonor the complainant. As a matter
of fact, the chat messages clearly stated that Respondent’s husband already
admitted that he is courting herein complainant. Moreover, Respondent as
the legal wife, begs the store manager’s help in order to save her marriage
with Norman. Such acts of the Respondent are clearly not malicious.

7
United States v. O’Connel, supra note 12 at 772.
8
Buatis, Jr. v. People, G.R. No. 142509, March 24, 2006, 485 SCRA 275, 286.
9
Sazon v. Court of Appeals, 325 Phil. 1053, 1065 (1996).
 Third, the Respondent’s chat messages clearly depicted that the latter
has a good motive and justifiable cause. The purpose of the Respondent is to
save her marriage with Norman Benjamin Callado for further destruction. All
allegations made by herein Respondent in the said chat messages are based
in the admission made by the latter’s husband and nothing else.

As for the e-mail sent by herein Respondent, the same was in the form
of a complaint when the latter for the second time, discovered her husband
Norman Benjamin Callado having secret conversation with herein
Complainant. Such act of the Respondent is clearly not malicious but an
exercise of her right as the legal wife of Norman to protect their marriage
against anyone who has an intention to destroy the same which in this case,
the Complainant.

All told, all the acts of herein Respondent are made with legal and
factual basis and without any intention to discredit or to cause dishonor
against the complainant.

“There is publication if the material is communicated to a

third person. It is not required that the person defamed has read
or heard about the libelous remark. What is material is that a third
person has read or heard the libelous statement, for "a man's
reputation is the estimate in which others hold him, not the good
opinion which he has of himself."10

“Simply put, in libel, publication means making the

defamatory matter, after it is written, known to someone other
than the person against whom it has been written.”11

“The reason for this is that [a] communication of the

defamatory matter to the person defamed cannot injure his
reputation though it may wound his self-esteem. A man's
reputation is not the good opinion he has of himself, but the
estimation in which others hold him."12

10
Philippine Journalists Inc. (People's Journal) v. Thoenen, supra note 66
11
Buatis, Jr. v. People, 520 Phil. 149, 160 (2006)
12
Alonzo v. Court of Appeals, 311 Phil. 60, 73 (1995).
 “In libel, publication means making the defamatory matter,
after it is written, known to someone other than the person against
whom it has been written.”13

Respondent sent the letter only to the store manager of the UCC Vertis
North Branch. The former did not disseminate the chat messages and its
contents to third persons, nor was the same published and circulated to the
public. Doubtlessly, there was no publicity and the matter fell within the
ambit of Article 354(1) of the Revised Penal Code.

Article 354 of the Revised Penal Code provides:

Art. 354. Requirement for publicity ─ Every defamatory imputation is

presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the

performance of any legal, moral, or social duty; and

2. A fair and true report, made in good faith, without any comments
or remarks, of any judicial, legislative, or other official proceedings which are
not of confidential nature, or of any statement, report, or speech delivered
in said proceedings, or of any other act performed by public officers in the
exercise of their functions.

Clearly, the presumption of malice is done away with when the

defamatory imputation is a qualified privileged communication.

“In order to prove that a statement falls within the purview

of a qualified privileged communication under Article 354, No. 1, as
claimed by petitioner, the following requisites must concur: (1) the
person who made the communication had a legal, moral, or social
duty to make the communication, or at least, had an interest to
protect, which interest may either be his own or of the one to whom
it is made; (2) the communication is addressed to an officer or a
board, or superior, having some interest or duty in the matter, and
who has the power to furnish the protection sought; and (3) the
statements in the communication are made in good faith and
without malice.”14

13
Ledesma vs. Court of Appeals, 278 SCRA 656 [1997].
14
Brillante v. Court of Appeals, G.R. Nos. 118757 & 121571, October 19, 2004, 440 SCRA 541, 569.
 “Moreover, the law requires that for a defamatory
imputation made out of a legal, moral or social duty to be
privileged, such statement must be communicated only to the
person or persons who have some interest or duty in the matter
alleged, and who have the power to furnish the protection sought
by the author of the statement.”15

Applying the above principle in the case at bar, Respondent has a legal
and moral duty to make such communication for being the legal wife of
Norman Benjamin Callado and at least had an interest to protect which
interest may either be her own or of the one to whom it is made.
Respondent’s interest is very clear, and that is the sanctity of her marriage
with Norman. The said chat message was addressed to the store manager
only who has some interest or duty in the said matter, and who has the
power to furnish the protection sought, and that is the authority to assign a
different accountant other than the complainant. Lastly, the statements
made by the Respondent in the said chat messages are made in good faith
and without any malice whatsoever.

“Truth be told that somehow the private respondent was not

pleased with the controversial printed matter. But that is grossly
insufficient to make it actionable by itself. "[P]ersonal hurt or
embarrassment or offense, even if real, is not automatically
equivalent to defamation,"16

"Words which are merely insulting are not actionable as libel

or slander per se, and mere words of general abuse however
opprobrious, ill-natured, or vexatious, whether written or spoken,
do not constitute bases for an action for defamation in the absence
of an allegation for special damages. The fact that the language is
offensive to the plaintiff does not make it actionable by itself," as
the Supreme Court ruled in MVRS Publications, Inc. v. Islamic Da’
Wah Council of the Phils., Inc. 444 Phil. 230, 241 (2003).

It is crystal clear that the Complainant did not suffer any

damages as result of the chat messages sent by herein Respondent.
If there be any, complainant already lose her job with her employer

15
Buatis, Jr. v. People, 520 Phil. 149, 160 (2006)
16
GMA Network, Inc. v. Bustos, G.R. No. 146848, October 17, 2006, 504 SCRA 638, 654.
 or punished by the latter in some other way. Unfortunately, no
punishment has ever been inflicted against herein complainant.

"In criminal prosecutions, fundamental is the requirement

that the elemental acts constituting the offense be established with
moral certainty as this is the critical and only requisite to a finding
of guilt."17

“Where it appears from the allegations in the information

that the person accused of libel acted in good faith and for
justifiable ends in making the allegedly libelous imputations, there
is no need to prolong the proceedings to the prejudice of the
accused.”18

PRAYER
WHEREFORE, premises considered, it is respectfully prayed for unto
this Honorable Office to DISMISS the complaint filed by Claudine Aspera for
Libel against herein Respondent for lack of merit and lack of basis in law and
jurisprudence.

Other reliefs as may be just and equitable under the premises are
likewise prayed for

IN WITNESS WHEREOF I, have hereunto affixed my signature this ____

day of _______________, 2019, at City of Meycauayan, Bulacan, Philippines.

SHARLENE CALLADO
Affiant

17
People v. Obmiranis, G.R. No. 181492, December 16, 2008, 574 SCRA 140, 148.
18
People vs. Andres, 107 Phil. 1046 [1960].
 SUBSCRIBED AND SWORN to before me, this _____ day of
___________, 2019, at City of Meycauayan, Bulacan affiant exhibited to me
his ID no. ______________________ issued on _________________, at
___________________________.

PROSECUTOR

Doc. No. _______

Page No. _______
Book No. _______
Series of 2019.