Sunday, July 26, 2015

Good faith; bad faith; motive; credibility; mistake; burden of proof; public office; transparency; good governance; accountability; right to information; right of access to public records; RA 6713; social media; privacy.

In an administrative case involving the application of the 15-day rule of RA No. 6713, the good faith, motive, credibility, and legal standing of the complainant were questioned by the respondent. We assisted him in preparing his sur-reply.

Sec. 5 (a) of R.A 6713 provides:

“Act promptly on letters and request- All Public Official and employee shall, within (15) days  from receipt thereof, respond to letters, telegrams or other means of communication sent by the public. The reply must contain the action taken.”

The respondent alleges that the hands of the complainant are “unclean”. In response the complainant argues that the respondent’s self-serving allegation deserves no weight and credit; that the respondent has not presented any evidence of bad faith and malice; that the complainant is entitled to the presumption of good faith in the performance of his legal and moral duty as a citizen to participate and to be vigilant in insuring:

(a)            good governance,
(b)            transparency, and
(c)             accountability

in their Barangay, as commanded by Article XI of the 1987 Constitution.  

Sec. 1, Art. XI, of the 1987 Constitution provides that:

(a)             “public office is a public trust”  and that
(b)            “public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.”

The very Preamble of the 1987 CONSTITUTION speaks of:

(a)             the common good”,
(b)            “rule of law”, and
(c)             “truth, justice, (and) freedom”.

Sec. 28, Art. II of the 1987 Constitution provides thatthe State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”

Sec.7, Art. III of the 1987 Constitution provides that:

1.      “the right of the people to information on matters of public concern shall be recognized”; and that
2.    “access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen”.

The respondent claims that the complainant violated the Cybercrime Prevention Act (R.A. No. 10175) when the latter submitted to the investigating office the screen shot copy of the subject vehicle from the Facebook Timeline of a Brgy Ex-O. The respondent alleges that the picture does not prove any offense.

The complainant argues that the privacy status of the Facebook account of the Ex-O is “Public. It means that:

1.      all pictures posted by xxx are open to be seen by the General Public and
2.    the General Public has the right to access the same or to take screen shots thereof.

The picture of the vehicle attached to the reply-affidavit of the complainant was a corroborating evidence to describe to the Council the physical appearance of the subject motor vehicle.

The complainant argues that the pending issues is the violation by the respondent of the 15-day rule of R.A 6713. It is not about the physical appearance of the said motor vehicle.
On social media-based evidence, the case of RHONDA AVE S. VIVARES, et. al. vs. ST. THERESA’S COLLEGE, et. al., G.R. No. 202666, September 29, 2014,  is useful. It held:

1.      “Facebook connections are established through the process of “friending” another user.”
2.    “By sending a “friend request”, the user invites another to connect their accounts so that they can view any and all “Public” and “Friends Only” posts of the other.”
3.    “Once the request is accepted, the link is established and both users are permitted to view the other user’s “Public” or “Friends Only” posts, amon others.
4.    “Friending”, therefore, allows the user to form or maintain one-to-one relationships with other users, whereby the user gives his or her “Facebook friend” access to his or her profile and shares certain information to the latter.
5.     “(A) Facebook user can regulate the visibility and accessibility of digital images (photos) posted on his or her personal bulletin or “wall” except for the user’s profile picture and ID, by selecting his or her desired privacy setting:

(a)             “Public-the default setting; every Facebook user can view the photo;
(b)            “Friends of Friends- only the user’s Facebook friends and the their friends can view the photo;
(c)             “Friends-only user’s Facebook friends can view the photo;
(d)            “Custom-the photo is made visible only to particular friends and/or network of the Facebook user; and
(e)             “Only Me-the digital image can only be viewed can be viewed only by the user.”

6.       “Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said user xxx manifest the intention to keep certain posts private, through the employment of measures to prevent access thereto or to limit its visibility.”

7.        “As applied, even assuming that the photos in issue are visible only to the sanctioned students’ Facebook friends, respondent STC can hardly be taken to task for the perceive privacy invasion since it was the minors’ Facebook friends who showed the pictures to Tigol.”

8.       “Respondents were mere recipients of what were posted.”

9.       “They did not resort to any unlawful means of gathering the information as it was voluntarily given to them by persons who had legitimate access to the said posts.”

10.  “(I)nformation, otherwise private, voluntarily surrendered by them can be opened, read, or copied by third parties who may or may not be allowed to such access.”

The respondent questions the credibility of the complainant. The respondent claims that the complainant is not a law-abiding citizen; that the complainant has a previous case; that the subject Letter, dated xxx, of the complainant is untrue; and that the complainant is not a bona fide voter  nor a taxpayer of their Barangay.

In response the complainant argues that the claim of the respondent constitutes an unfair and dirty attempt to assassinate his character as a law-abiding and vigilant citizen; that the words of the respondent are unbecoming of an elected public official; that the respondent is employing diversionary tactics to maliciously confuse the Council and to unjustly destroy his credibility; that the argument of the respondent is irrelevant and immaterial to the pending issues; and that the malicious tactic of the respondents imposes a chilling effect on the part of vigilant citizens of their Barangay who might wish to participate in the future in promoting the rule of law, transparency, and good governance.

The complainant submitted a certified true copy of his Voters Registration Record issued by the Commission on Election to prove that he is a Registered Voter of their Barangay.

The complainant submitted a copy of the Official Receipt for the payment of the Local Real Estate Tax on the real property of his deceased stepmother to prove that he lives in the said property; that he is the one paying the said tax; and that he is a taxpayer of the City.

The complainant argues that the case for qualified theft against him in the past arose out of a mere misunderstanding between him and the Barangay Treasurer. The miscommunication referred to the turn-over of the hand-held radio which was assigned to him. His possession and use of the radio was authorized by a Memorandum issued by the Barangay Treasurer. The said case was dismissed.

The complainant argues that in the instant administrative case, the person on trial, so to speak, is the respondent, not the complainant; and that his  aforecited dismissed case is irrelevant and immaterial to the instant administrative case against the respondent.

The complainant argues that the respondent claims that his complaint is politically motivated for purposes of the upcoming 2016 Barangay Election. He states that he is not a politician; that he has never been a politician; that politics is not his career path; that he is an ordinary citizen who cares for good governance, transparency and accountability in their Barangay; that he is not a candidate in the 2016 Barangay Election; and that he is not a tool, dummy or crony of a politician who will in the 2016 Barangay Election.

The complainant argues that his good faith as a Complaining Citizen is presumed. If the respondent wishes to destroy the presumption of good faith in his favor the respondent has the burden of proof to prove her claim.

The complainant cited the case of Heirs of Severa Gregorio  vs. Court of Appeals, et al, G. R. No. 117609, December 19, 1998, which held that:  

1.      “(I)t is axiomatic that good faith is always presumed unless convincing evidence to the contrary is adduced”;
2.     “It is incumbent upon the party alleging bad faith to sufficiently prove such allegation”;  
3.     “Absent enough proof thereof, the presumption of good faith prevails”;
4.     “Without a clear and persuasive substantiation of bad faith, the presumption of good faith in favor of respondents stands”.

The complainant cited the analogous case of FRANCISCO M. LECAROZ, et. al. vs. SANDIGANBAYAN, et. al., G.R. No. 130872, March 25, 1999, which held that:

“The rule is that any mistake on a doubtful or difficult question of law may be the basis of good faith”.

The complainant cited the case of People vs. De Guzman, GR 106025, Feb.  9, 1994, which held that:

1.      Innocence, and not wrong-doing, is presumed. 
2.    Good faith is presumed;
3.    The “presumption prevails until it is overcome by clear and convincing evidence to the contrary”;
4.    “If not rebutted, it is conclusive”.  

The complainant argues that his motive as a  complaining citizen is not a valid and legal ground:

1.      to dismiss a consummated administrative offense or
2.    to free a guilty public official from administrative  liability.

Motive is irrelevant and immaterial to a determination of guilt of a respondent in a consummated administrative offense.

In the case of PEOPLE OF THE PHILIPPINES vs. LYNDON FLORES y MALARAYAP, G.R. No. 116524. January 18, 1996, it was held that there is no reason to doubt the credibility of a witness and the veracity of his testimony “if his statements are not tainted with any contradiction, inconsistency, or prevarication” and when the witness testified in a “candid, categorical, and consistent manner”. (Citing People vs. Barte, 230 SCRA 401 [1994]).

If there is nothing on the record to show that a witness was actuated by any improper motive, “his testimony shall be entitled to full faith and credit”. (Citing People vs. Dela Cruz, 229 SCRA 754 [1994]). 

In the analogous case of People v. Gloria, Gayo, Cabilosa, and Cuison[G.R. No. 111806. March 9, 2000], it was held that:
1.      In a criminal offense, “motive is not an element of the offense”.
2.    “Motive becomes material only when the evidence is circumstantial or inconclusive, and there is some doubt on whether a crime has been committed or whether the accused has committed it”.
3.    “Indeed, motive is totally irrelevant when ample direct evidence sustains the culpability of the accused beyond reasonable doubt.”

[Citing: People v. Astorga, 283 SCRA 420, 433 (1997), citing People v. Sta. Agata, 244 SCRA 677, 684 (1995); People v. Cayetano, 223 SCRA 770 (1993); People v. Magpayao, 226 SCRA 13, 27 (1993).]
4.    “Where a reliable eyewitness has fully and satisfactorily identified the accused as the perpetrator of the felony, motive becomes immaterial in the successful prosecution of a criminal case.” [Citing: People v. Castillo, 273 SCRA 22, 32 (1997), citing People v. Lovedioro, 250 SCRA 389 (1995).]

The complainant argues that his alleged bad faith as a complainant has not been proved by the respondent.

In the case of Ford Philippines, Inc. v. CA, G.R. No. 99039, February 3, 1997, the Supreme Court held:

1.      That “bad faith does not simply connote bad judgment or negligence”;
2.    That bad faith “imports a dishonest purpose or some moral obliquity and conscious doing of wrong”;
3.    That “it means a breach of a known duty through some motive or interest or ill will that partakes of the nature of fraud”;
4.    That “it must be reiterated that bad faith should be established by clear and convincing evidence”; and
5.     That “settled rule is that the law always presumes good faith such that any person who seeks to be awarded damages due to acts of another has the burden of proving that the latter acted in bad faith or with ill motive”.