By Dominador Maphilindo O. Carrillo
Penthouse Corner

WHENEVER invoked, the term “sub judice,” seems to some media practitioners to be the functional equivalent of a red light or a brick wall. Some press people refuse to comment on anything that has got to do with a pending case in view of the so-called sub judice rule. Those interviewed about a pending case find that they can easily escape questions from the press by simply uttering the magic words “sub judice.” Self-censorship appears to be the most prudent course for some media people -- it is best, they say, not to stick your nose into matters sub judice so that no trouble will come to you. Thus, the sub judice rule seems to have imposed an undesirable chilling effect on some media personalities. A brief discussion may somehow help demystify the rule.

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Sub judice is a Latin phrase that literally means “under judgment.” In practical terms, it refers to any matter that is presently under judicial consideration; thus, when a certain dispute or controversy is involved in a case being heard or tried before a court, then any question or comment related to the facts and issues involved in that dispute or controversy is deemed sub judice.

The sub judice rule embodies the struggle between the competing interests of free speech and free press on the one hand, and the independence of the judiciary on the other. Genuine democracies, where the people themselves theoretically govern, can only thrive where a robust and vibrant discussion of public matters by an eternally vigilant and well-informed people is assured. Free speech and free press keep the public well-informed about the burning issues of the day and thus place them in the best possible position to discuss such issues meaningfully and constructively. It follows that absent free speech and free press, no democracy can be authentic.

However, in common law jurisdictions such as the United States and Great Britain, where cases are decided by a jury, it was traditionally assumed that too much exposure to public attention, opinion, harassment, and biased information provided by the media might unduly pressure and influence the jurors, and therefore compromise the integrity of judicial proceedings.

The sub judice rule evolved out of this interest to protect the independence of the jury from external influences. Thus, common law courts were given broad discretion to issue “gag orders” on public discussions, even by media, about matters sub judice, and punish any violations thereof by contempt of court.

This common law assumption that media discussions about matters sub judice threaten the independence of judicial proceedings was carried over to the Philippines even though trial by jury was not. Thus, it was assumed even here that media discussions about matters sub judice might influence judges to the same extent as juries in common law jurisdictions.

In the Philippines, is the media prohibited from discussing matters sub judice? The answer is no. The rule is that the media is certainly free to discuss or comment about matters of public concern that are sub judice. A principal limitation is found in Rule 71, section 3(d) of the Rules of Court: such media discussions about matters sub judice should not amount to “improper conduct tending directly or indirectly, to impede, obstruct, or degrade the administration of justice.”

Those who cross the line may be charged and punished for indirect contempt of court. To be convicted of indirect contempt, the comments sub judice (a) must amount to improper conduct, and (b) must have tended directly or indirectly to impede, or obstruct, or degrade the administration of justice. A judgment of conviction, which is appealable, may lead to a sentence of imprisonment of up to six months or a maximum fine of P30,000, or both.

Probably nothing short of an unfair or baseless personal attack on the integrity of a judge handling a given case or a court where the case is pending will the court itself take action through contempt proceedings against the media practitioners involved.

It would be difficult to imagine how a fair and reasonable discussion in the media about the merits of a party’s evidence or arguments with respect to factual or legal issues in a pending case would amount to improper conduct in a democracy which values free speech and free press and deems these rights as essential to well-informed public discussions.

A media frenzy surrounded the cases against prominent sons of Cebu families involving the murder and rape of the Chiong sisters. Our Supreme Court set aside and declared void an injunction issued by a Regional Trial Court to prevent the release of the “Jessica Alfaro Story” movie while the criminal case involving the Vizconde Massacre was ongoing. Thus, the movie was released for public viewing even as the criminal case was pending.

The Vizconde Massacre trial itself was well publicized. The media coverage on the Sandiganbayan proceedings involving the plunder case against President Joseph Estrada was also extensive. Clearly, the public had benefitted more from the media attention devoted to these cases, and other cases that involve matters of public concern, than from the reduction of the risk of undue influence that such media attention may bring to bear on the judges involved.

Thus, to a large extent, the public interest involved in guaranteeing the exercise of free speech and free press trumps and is far more pressing than the fear that the exercise of such rights may unduly influence judges.