Sub judice

The recent gag order issued by the Sandiganbayan on the parties in respect of the validity of the Garcia plea bargain and the show cause order issued by the Supreme Court against the “UP 37” law professors regarding comments made by the latter in a pending proceeding make it timely to revisit the so-called “sub judice” rule.

Wikipedia defines sub judice ( Latin for “under judgment”) as a particular case or matter currently under trial or being considered by a judge or court. In Commonwealth countries, it is generally considered inappropriate to comment on such cases, a violation of which can lead to contempt of court proceedings. This is particularly true in a criminal case where an individual’s liberty and/or reputation are at stake, and where unregulated, public comments may interfere with the due process rights of the accused and impact the administration of justice. 

In the United States, the importance of First Amendment free expression rights has resulted in a liberal implementation of the rule particularly when the media is involved. In Sheppard v. Maxwell, the US Supreme Court ruled that “there is nothing that proscribes the press from reporting events that transpire in the courtroom.”

In the Philippines, the concept is contained in Rule 13.02 of the Code of Professional Responsibility which provides that “A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party”.

In this regard, the Supreme Court held in the April 2009 case of Romero vs. Estrada that:

“The sub judice rule restricts comments and disclosures pertaining to judicial proceedings to avoid prejudging the issue, influencing the court, or obstructing the administration of justice. A violation of the sub judice rule may render one liable for indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court x x x” Said rule, in turn, provides:

“Indirect contempt to be punished after charge and hearing. — After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon, a person guilty of any of the following acts may be punished for indirect contempt: x x x

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; x x x”

 The crux of the matter lies in striking the right balance between due process/administration of justice concerns on the one hand and free speech and freedom of the press issues on the other hand. Media performs a critical, “watchdog” role by providing a spotlight on issues of public concern that may arise in a case. Equally important is the public right to scrutinize (even criticize) court decisions and proceedings which can prevent instances of judicial arbitrariness and assist in maintaining confidence in our judicial system.

But while Western democracies generally use a jury system, our jurisdiction relies on a judge who is both a trier of fact and decider of the law. And there lies the difference. 

Verily, one of the main objectives of the sub judice rule is to prevent the back door entry of inadmissible evidence thru exposure to mass media. In theory, a judge who is trained in the rudiments of law is enabled to properly screen out such evidence. Unlike lay jurors who may be swayed by public opinion, she is supposed to display the trait of an impartial yet skilled arbiter. Hence, the threat of such evidence being introduced and having any bearing on the judge’s decision is supposed to be minimized.

Of course, this is the legal theory. Believe it or not, judges are also humans who are susceptible to influence. But in trying to strike a balance among the competing values involved, what is important is that we formulate a rule that will not unduly restrict freedoms of speech and of the press more than is necessary to ensure a fair trial. 

In this regard, the bill that had been filed by Senator Miriam Defensor-Santiago regarding the sub judice rule deserves a serious second look. Entitled the “Judicial Right to Know Act,” the bill essentially prohibits “court orders, writs and injunctions which prevent media reports and commentaries on, or publications of, proceedings sub judice, except under certain circumstances.” The practical problem that I foresee is that the bill may be seen as an intrusion into the Supreme Court’s turf of promulgating rules “concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts.” The practical solution I can recommend is for the two co-equal branches to sit down and hammer out a rule that would serve their interests and, at the same time, strengthen our democratic set-up.

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Winning performance: One centavo is given this week to Xavier high school basketball player Jeron Teng for scoring 104 points in one game. The 6-foot-1 son of former PBA player Alvin Teng achieved this remarkable feat during a Freego Tiong Lian Basketball Association tournament game against Grace Christian College which Xavier won 164-74. His performance is reminiscent of Wilt Chamberlain’s 100 point output for the Philadelphia Warriors in a 169-147 victory over the New York Knicks on March 2, 1962. Jeron shattered all Philippine high school records in points per game. His individual score is higher by 30 points than the opponent’s combined total. And the 164 points and 90 point winning margin of Xavier were, not surprisingly, new tournament records. And while his dad and kuya Jeric are UST standouts, I am certain that the scouts from the other UAAP and NCAA teams are already eyeing this potential tiger and will be visiting him sometime soon. Jeron seems to be well on his way on the same path to stardom as co-Xavier alumnus Chris Tiu. 

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”The most successful man in the end is the one whose success is the result of steady accretion.”

— Alexander Graham Bell

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