Should we keep our mouths shut? Supreme Court should clarify sub judice

The Supreme Court issues a show cause order against ousted Chief Justice Maria Lourdes Sereno for discussing the merits of the case before the media.

The Supreme Court (SC), in its recent decision in the quo warranto petition against Chief Justice Maria Lourdes Sereno, took exception in the way the Chief Justice had discussed the merits of the case before the media. It further considered the media releases of the Chief Justice as attacks against the Court.

The Court thus issued a show cause order against Sereno for “transgressing the sub judice rule and for casting aspersions and ill motives to the Members of the Supreme Court.”

But what is this sub judice rule? It simply means that a matter is before the court for consideration and, hence, should not be discussed in other fora. Thus, per the Court, “[t]he sub judice rule restricts comments and disclosures pertaining to the judicial proceedings in order to avoid prejudging the issue, influencing the court, or obstructing the administration of justice.” The rule is aimed at, among others, shielding the court from outside influence, and ensuring a fair trial – one based on facts, and not on public opinion.

Since the Sereno case is before the Supreme Court for further consideration, should the public desist from discussing it, and the media stop reporting on it? The Supreme Court is now given the best opportunity to clarify this.

The sub judice rule, it should be noted, directly affects a fundamental component of a democratic system – that is, free speech. An order then coming from the Supreme Court that restrains the free discussion of issues involving public concern, such as the Chief Justice’s case, will have a chilling effect on the media and the public. The Supreme Court must then balance the competing interests of free speech, open justice, fair trial, administration of justice, sub judice, and contempt.

It has to be remembered nevertheless that the sub judice rule came into our shores through the Americans, who in turn took the same from the British common law. What lies interesting, however, is that, in common law systems, trials by jury are the norm. In the Philippines’ hybrid legal system, bench trials, and not jury trials, are conducted. There is a huge difference in these two types of trials, and hence the sub judice rule as applied in judicial systems with jury trials would not operate hook, line, and sinker in court systems with bench trials.

In trials by jury, it is the jury that ultimately decides the case. The members of the jury are not learned in the law, and are selected from the general public. Empirical research in the United States, the United Kingdom, Australia, and New Zealand – all common law systems with jury trials – have revealed that jurors exposed to negative publicity on the accused and the crime are more likely to give a guilty verdict. The sub judice rule thus came about to shield the jury, who are composed of lay people, from the tendency to be influenced by public opinion, and thus prejudge the case.

In bench trials, the judge, who spent considerable time studying the law, sits on the bench, listens to the arguments of the parties, ascertains the facts, and decides the case based on its merits. In the Supreme Court, it is the 15 justices, having a wide range of legal or judicial experience, who decide cases before it. Judges and justices, considered to be legal luminaries, are deemed to be uneasily affected and influenced by the media and the public. This, given that the members of the judiciary have been selected and appointed to the Bench on account of their “proven competence, integrity, probity, and independence.” A judge cannot then be swayed by public opinion, passion, or prejudice.

The sub judice rule from the common law jury trial system should hence have a limited application in the Philippine bench trial judicial system. While its limited application should extend, for example, to criminal trials to ensure that the testimonies of witnesses are not influenced by the media, the sub judice rule should not operate, generally, in our trial courts, and especially in appellate courts, such as the Supreme Court.

Under the principle of open justice, the court system should, like any government office, be open and be subject to public scrutiny and criticism. Fair trial is reached with court hearings being open. To preserve public confidence in the administration of justice, the media and the public should at the same time be well-informed, honest, and fair in their criticism of the courts. But these objectives cannot be fulfilled if the court itself, invoking the sub judice rule, punishes with contempt speech against it.

Indeed, as they say, speech should be free so we can all discuss and comment on issues of public importance./Pelagio Palma –

Pelagio Palma Jr is a lawyer in the Philippines and in Australia. He clerked for two justices of the Supreme Court prior to studying at the University of New South Wales for his master of laws in media and technology.


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