EN BANC

Agenda of December 14, 2010

Item No. 85

G.R. Nos. 176389 and 176864 – ANTONIO LEJANO, et al., petitioners –

versus– COURT OF APPEALS, et al., respondents.

Promulgated:

December 14, 2010

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SUPPLEMENTAL OPINION

BRION, J.:

In addition to my vote and independently of the merits of the present case, I

write this opinion to point out the growing disregard and non-observance of the sub
judice rule, to the detriment of the rights of the accused, the integrity of the courts,
and, ultimately, the administration of justice. I seize this opportunity fully aware
that the present case – dubbed in the news media as the Vizconde Massacre – is
one of the most sensational criminal cases in Philippine history in terms of the
mode of commission of the crime and the personalities involved. From the time
the charges were filed, the case has captured the public’s interest that an unusual
amount of air time and print space have been devoted to it. Of late, with the
public’s renewed interest after the case was submitted for decision, key
personalities have again been unabashedly publicizing their opinions and
commenting even on the merits of the case before various forms of media. A
Senior Justice of this Court, who was a witness in the case (while he was in private
law practice) and who consequently inhibited himself from participation, was even
publicly maligned in the print and broadcast media through unsupported
speculations about his intervention in the case. That was how bad and how low
comments about the case had been.
 In essence, the sub judice rule restricts comments and disclosures pertaining
to pending judicial proceedings. The restriction applies not only to participants in
the pending case, i.e., to members of the bar and bench, and to litigants and
witnesses, but also to the public in general, which necessarily includes the
media. Although the Rules of Court does not contain a specific provision
imposing the sub judice rule, it supports the observance of the restriction by
punishing its violation as indirect contempt under Section 3(d) of Rule 71:

Section 3. Indirect contempt to be punished after charge and hearing. –

x x x a person guilty of any of the following acts may be punished for indirect
contempt:

x x x x

(d) Any improper conduct tending, directly or indirectly, to impede,

obstruct, or degrade the administration of justice[.]

Persons facing charges for indirect contempt for violation of the sub
judice rule often invoke as defense their right to free speech and claim that the
citation for contempt constitutes a form of impermissible subsequent punishment.

We have long recognized in this jurisdiction that the freedom of speech

under Section 4, Article III of the Constitution is not absolute. A very literal
construction of the provision, as espoused by US Supreme Court Justice Hugo
Black,[1] may lead to the disregard of other equally compelling constitutional rights
and principles. In Vicente v. Majaducon,[2] this Court declared that “[the freedom
of speech] needs on occasion to be adjusted to and accommodated with the
requirements of equally important public interests such as the maintenance of the
integrity of courts and orderly functioning of the administration of
justice.” Courts, both within and outside this jurisdiction, have long grappled with
the dilemma of balancing the public’s right to free speech and the government’s
duty to administer fair and impartial justice. While the sub judice rule may be
considered as a curtailment of the right to free speech, it is “necessary to ensure the
proper administration of justice and the right of an accused to a fair trial.”[3] Both
these latter concerns are equally paramount and cannot lightly be disregarded.

Before proceeding with this line of thought, however, let me clarify that
the sub judice rule is not imposed on all forms of speech. In so far as criminal
proceedings are concerned, two classes of publicized speech made during the
pendency of the proceedings can be considered as contemptuous: first, comments
on the merits of the case, andsecond, intemperate and unreasonable comments on
the conduct of the courts with respect to the case. Publicized speech should be
understood to be limited to those aired or printed in the various forms of media
such as television, radio, newspapers, magazines, and internet, and excludes
discussions, in public or in private, between and among ordinary citizens. The
Constitution simply gives the citizens the right to speech, not the right to
unrestricted publicized speech.

Comments on the merits of the case may refer to the credibility of witnesses,
the character of the accused, the soundness of the alibis offered, the relevance of
the evidence presented, and generally any other comment bearing on the guilt or
innocence of the accused.[4] The danger posed by this class of speech is the undue
influence it may directly exert on the court in the resolution of the criminal case, or
indirectly through the public opinion it may generate against the accused and the
adverse impact this public opinion may have during the trial. The significance of
the sub judice rule is highlighted in criminal cases, as the possibility of undue
influence prejudices the accused’s right to a fair trial. “The principal purpose of
the sub judice rule is to preserve the impartiality of the judicial system by
protecting it from undue influence.”[5] Public opinion has no place in a criminal
trial. We ruled that –

it is a traditional conviction of civilized society everywhere that courts and juries,

in the decision of issues of fact and law should be immune from every extraneous
influence; that facts should be decided upon evidence produced in court; and
 that the determination of such facts should be uninfluenced by bias,
prejudice or sympathies.[6]

The right to a fair trial is an adjunct of the accused’s right to due process which
“guarantees [him] a presumption of innocence until the contrary is proved in a
trial x x x where the conclusions reached are induced not by any outside force or
influence but only by evidence and argument given in open court, where fitting
dignity and calm ambiance is demanded.”[7]

In foreign jurisdictions, the courts do not hesitate to exercise their power to

punish for contempt where necessary to dispose of judicial business unhampered
by publications that tend to impair the impartiality of verdicts.[8]

If the media publish prejudicial material, they can appear to urge, or may
in fact be urging, a particular finding: the media can “wage a campaign” against
one of the parties to proceedings. If the jury decides in accordance with an
outcome promoted by the media, it will appear as if the jurors were swayed by the
media. By the same token, if the jury’s decision does not accord with media
opinion, it may appear as if they were deliberately reacting against it. Either way,
it may appear that the jury’s decision was not impartial and based on the evidence
presented in court, even if it was.[9]

The accused must be assured of a fair trial notwithstanding the prejudicial

publicity;[10] he has a constitutional right to have his cause tried fairly by an
impartial tribunal, uninfluenced by publication or public clamor.[11] “The sub
judice doctrine protects against the appearance of decisions having been influenced
by published material.”[12]

As may be observed from the cited material, the sub judice rule is used by
foreign courts to insulate members of the jury from being influenced by prejudicial
publicity. But the fact that the jury system is not adopted in this jurisdiction is not
an argument against our observance of the sub judice rule; justices and judges are
no different from members of the jury, they are not immune from the pervasive
effects of media. “It might be farcical to build around them an impregnable armor
against the influence of the most powerful media of public opinion.”[13] As I said
in another case, in a slightly different context, even those who are determined, in
their conscious minds, to avoid bias may be affected.[14]
Also, it is not necessary that the publicity actually influenced the court’s
disposition of the case; “the actual impact of prejudicial publicity is not relevant to
liability for sub judice contempt.”[15] In several cases, the Court has noted the
enormous effect of media in stirring public sentience x x x Even while it may
be difficult to quantify the influence, or pressure that media can bring to bear on
[witnesses and judges] directly and through the shaping of public opinion, it is a
fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees.
The conscious or unconscious effect that such a coverage may have on the
testimony of witnesses and the decision of judges cannot be evaluated but, it can
likewise be said, it is not at all unlikely for a vote of guilt or innocence to yield to
it.[16]

Comment on the conduct of the courts with respect to the case becomes
subject to a contempt proceeding when it is intemperate, is contumacious, and
unduly impairs upon the dignity of the court. A comment that impairs of the
dignity of the court “excites in the mind of the people a general dissatisfaction with
all judicial determinations, and indisposes their minds to obey them[.]”[17] If the
speech tends to undermine the confidence of the people in the honesty and integrity
of the court and its members, and lowers or degrades the administration of justice,
then the speech constitutes contempt.[18] “Unwarranted attacks on the dignity of
the courts cannot be disguised as free speech, for the exercise of said right cannot
be used to impair the independence and efficiency of courts or public respect
therefore and confidence therein.”[19] Without the sub judice rule and the contempt
power, the courts will be powerless to protect their integrity and independence that
are essential in the orderly and effective dispensation and administration of justice.
This, of course, is not meant to stifle all forms of criticism against the
court. As the third branch of the government, the courts remain accountable to the
people. The people’s freedom to criticize the government includes the right to
criticize the courts, their proceedings and decisions. This is the principle of open
justice, which is fundamental to our democratic society and ensures that (a) there
is a safeguard against judicial arbitrariness or idiosyncrasy, and that (b) the
public’s confidence in the administration of justice is maintained.[20] The criticism
must, however, be fair, made in good faith, and “not spill over the walls of decency
and propriety.”[21] And to enhance the open court principle and allow the people to
make fair and reasoned criticism of the courts, the sub judice rule excludes from its
coverage fair and accurate reports (without comment) of what have actually taken
place in open court.

In sum, the court, in a pending litigation, must be shielded from

embarrassment or influence in its all-important duty of deciding the case.[22] Any
publication pending a suit, reflecting upon the court, the parties, the officers of the
court, the counsel, etc., with reference to the suit, or tending to influence the
decision of the controversy, is contempt of court and is punishable. The resulting
(but temporary) curtailment of speech because of the sub judice rule is necessary
and justified by the more compelling interests to uphold the rights of the accused
and promote the fair and orderly administration of justice.

If we do not apply at all the sub judice rule to the present case, the reason is
obvious to those who have followed the case in the media – both parties are in pari
delicto as both have apparently gone to the media to campaign for the merits of
their respective causes. Thus, the egregious action of one has been cancelled by a
similar action by the other. It is in this sense that this Supplemental Opinion
is independent of the merits of the case. Their common action, however, cannot
have their prejudicial effects on both; whatever the results may be, doubts will
linger about the real merits of the case due to the inordinate media campaign that
transpired.

Lest we be misunderstood, our application of the sub judice rule to this case
cannot serve as a precedent for similar future violations. Precisely, this
Supplemental Opinion is a signal to all that this Court has not forgotten, and is in
fact keenly aware of, the limits of what can be publicly ventilated on the merits of
a case while sub judice, and on the comments on the conduct of the courts with
respect to the case. This Court will not standby idly and helplessly as its integrity
as an institution and its processes are shamelessly brought to disrepute.

[1]
See Justice Black’s concurring opinion in Smith v. California, 361 U.S. 147 (1959), part of which reads:
Certainly the First Amendment's language leaves no room for inference that abridgments of
speech and press can be made just because they are slight. That Amendment provides, in simple
words, that "Congress shall make no law . . . abridging the freedom of speech, or of the press." I
read "no law . . . abridging" to mean no law abridging. The First Amendment, which is the
supreme law of the land, has thus fixed its own value on freedom of speech and press by putting
these freedoms wholly "beyond the reach" of federal power to abridge. No other provision of the
Constitution purports to dilute the scope of these unequivocal commands of the First
Amendment. Consequently, I do not believe that any federal agencies, including Congress
and this Court, have power or authority to subordinate speech and press to what they think
are “more important interests.” The contrary notion is, in my judgment, court-made, not
Constitution-made. (361 U.S. 147, 157-159).
[2]
A.M. No. RTJ-02-1698, June 23, 2005, 461 SCRA 12, 24-25, citing Choa v. Chiongson, A.M. No. MTJ-95-
1063, August 9, 1996, 260 SCRA 477, 484-485.
[3]
Law Reform Commission – New South Wales, Discussion Paper 43 (2000) – Contempt by
Publication, http://www.lawlink.nsw.gov.au/lrc.nsf/pages/dp43chp02, last visited December 9, 2010.
[4]
Ibid.; the Discussion Paper 43 (2000) of the Law Reform Commission of New South Wales has identified some
“high-risk publications” against which the sub judice rule applies. These include:
a. A photograph of the accused where identity is likely to be an issue;
b. Suggestions that the accused has previous criminal convictions, has been previously charged for
committing an offense and/or previously acquitted, or has been involved in other criminal activity;
c. Suggestions that the accused has confessed to committing the crime in question;
d. Suggestions that the accused has confessed to committing the crime in question;
e. Suggestions that the accused is guilty or innocent of the crime for which he or she is charged, or that
the jury should convict or acquit the accused; and
f. Comments which engender sympathy or antipathy for the accused and/or which disparage the
prosecution, or which make favorable or unfavorable references to the character or credibility of the
accused or a witness.
[5]
Ibid.
[6]
Nestle v. Sanchez, Nos. L-75209 and 78791, September 30, 1987, 154 SCRA 542, 546.
[7]
Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the
Former President Joseph E. Estrada, A.M. No. 01-4-03-SC, June 29, 2001, 360 SCRA 248, 259-260.
[8]
People v. Godoy, G.R. Nos. 115908-09, March 29, 1995, 243 SCRA 64, 81, citing U.S. v. Sullen, 36 F. 2d 220.
[9]
Supra note 3.
[10]
See Wayne Overbeck, Major Principles in Media Law, p. 298.
[11]
Supra note 6, at 546.
[12]
Supra note 3.
[13]
Supra note 7, at 260.
[14]
Separate Opinion of the author in Louis "Barok" C. Biraogo v. The Philippine Truth Commission of 2010, G.R.
Nos. 192935 & 193036, December 7, 2010, part of which reads:
Where the government simply wants to tell its story, already labeled as true, well ahead of any
court proceedings, and judicial notice is taken of the kind of publicity and the ferment in public
opinion that news of government scandals generate, it does not require a leap of faith to conclude
that an accused brought to court against overwhelming public opinion starts his case with less than
equal chance of acquittal. The presumption of innocence notwithstanding, the playing field cannot
but be uneven in a criminal trial when the accused enters trial with a government-sponsored badge
of guilty on his forehead. The presumption of innocence in law cannot serve an accused in a
biased atmosphere pointing to guilt in fact because the government and public opinion have
spoken against the accused. [Citations omitted]
[15]
Supra note 3.
[16]
Supra note 7, at 259-260.
[17]
Supra note 8, at 82, citing J. Perfecto’s dissenting opinion in In re Francisco Brillantes, 42 O.G. 59.
[18]
Id. at 94.
[19]
In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya
Dated September 18, 19, 20, and 21, 2007, A.M. No. 07-09-13-SC, August 8, 2008, 561 SCRA 395, 448,
citing Roxas v. Zuzuarregui, G.R. Nos. 152072 & 152104, July 12, 2007, 527 SCRA 446.
[20]
Id.at 434.
[21]
Tiongco v. Savillo, A.M. No. RTJ-02-1719, March 31, 2006, 486 SCRA 48, 64, citing In re Almacen, infra note
22.
[22]
In re Almacen, No. L-27654, February 18, 1970, 31 SCRA 562.