Republic of the Philippines

SUPREME COURT
Manila

IN RE: PETITION FOR RADIO AND TELEVISION COVERAGE OF THE MULTIPLE MURDER CASES AGAINST MAGUINDANAO GOVERNOR ZALDY AMPATUAN, ET. AL. ,
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A.M. No.10-11-5-SC

LETTER OF HIS EXCELLENCY BENIGNO C. AQUINO III, PRESIDENT OF THE PHILIPPINES, DATED 22 NOVEMBER 2010

A.M. No. 10-11-7-SC

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MOTION FOR RECONSIDERATION

Petitioners, through undersigned counsel, respectfully allege: 1.0 On 21 November 2012, undersigned counsel received a Notice from the Clerk of Court En Banc, signed by Enriqueta E. Vidal, Clerk of Court, notifying the undersigned that the Honorable Court issued a Resolution dated 23 October 2012, the dispositive portion of which states: WHEREFORE, premises considered, the Court resolves to: 1. DENY the Partial Motion for Reconsideration dated June 29, 2011 of petitioners Editha Mirandilla and Glenna Logarta;

2. PARTIALLY GRANT the Motion for Reconsideration dated June 27, 2011 filed by accused Andal Ampatuan, Jr. and to MODIFY this Courts Resolution dated June 14, 2011, by disallowing the live media broadcast of the trial in Criminal Case Nos. Q-09-162148-72, Q09162216-31, Q-10-162652-66, and Q-163766, subject to the following guidelines on audio-visual recording and streaming of the video coverage: xxx xxx xxx

2.0 Petitioners reiterate their argument, among others, that the Aquino and Estrada policies reinstated in the assailed resolution violate the doctrine that proposed restrictions on constitutional rights are to be narrowly construed, that outright prohibition cannot stand when regulation is a viable alternative. Accordingly, petitioners hereby re-plead by reference all their arguments in their Petition dated 19 November 2010 and reproduce them herein by incorporation and reference.

GROUNDS FOR RECONSIDERATION

I. II. Compelling circumstances militate against blind adherence to stare decisis. The balancing-of-interests test applied in the resolution runs contra to the Courts established rulings on freedom of speech, and in truth, the rights of the accused and those of a free press, to information and to a public trial are not repugnant to each other. III. There are no factual bases to sustain the conclusion that live televised coverage will unduly influence judges and witnesses. IV. Regulation is to be preferred over outright prohibition; neither should prohibition in the guise of regulation be preferred.

DISCUSSION
COMPELLING CIRCUMSTANCES MILITATE AGAINST BLIND ADHERENCE TO STARE DECISIS. xxx Supreme Court rulings are not written in stone so that they will remain unerased and applicable for all times. The Supreme Court's review of rulings and their binding effects is a continuing one so that a ruling in one era may be declared by the Court at some future time to be no longer true and should thus be abandoned and changed. -- separate opinion of Justice Arturo Brion, De Castro v. Judicial and Bar Council

3.0 In its Resolution dated 14 June 2011, a unanimous Court1 voted to overturn a doctrine first enunciated in 1991 in Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquinos Libel Case2 then reiterated in 2001 in Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the Former President Joseph E. Estrada3 to the effect that live coverage by television and radio of courtroom proceedings are absolutely prohibited. The resolution, penned by former Associate Justice Conchita CarpioMorales, held that The rationale for an outright total prohibition was shrouded, as it is now, inside the comfortable cocoon of a feared speculation which no scientific study in the Philippine setting confirms, and which fear, if any, may be dealt with by safeguards and safety nets under existing rules and exacting regulations.

4.0 In this day and age, the Court ruled,

With the exception of former Chief Justice Renato Corona, who was on official leave at the time, and Associate Justice Arturo Brion, who was on sick leave.
2

En Banc Resolution dated 22 October 1991, hereinafter referred to as Aquino.

A.M. No. 01-4-03-SC dated 29 June 2001, 360 SCRA 248, hereinafter referred to as Estrada.

it is about time to craft a win-win situation that shall not compromise rights in the criminal administration of justice, sacrifice press freedom and allied rights, and interfere with the integrity, dignity and solemnity of judicial proceedings. Compliance with regulations, not curtailment of a right, provides a workable solution to the concerns raised in these administrative matters, while, at the same time, maintaining the same underlying principles upheld in the two previous cases.

5.0 In effect, it took two decades to overturn a prohibition, no doubt impelled by the unique circumstances of the instant case, yet in its Resolution of 23 October 2012, it took the Court all of 16 months to reverse itself, confiscate a boon it had extended to the people and revert to a ruling that, whether one acknowledges it or not, is based antiquatedly on an American case decided in the mid-1960s.4 The point need not be belabored that petitioners are greatly alarmed by the change-of-heart since it represents another instance of what has been described as the Courts recent tendency to flip-flop.5

6.0 While the resolution does not expressly so state, it in truth demonstrates the application of the principle of stare decisis et non quieta movere. This much is evident since the resolution virtually replicates Estrada and Aquino, citations which in themselves are problematic since they are the very same decisions being questioned on constitutional grounds by petitioners. Further, the resolution persists in relying on Estes,6 albeit indirectly since it cites Aquino citing Estes. Continuing reliance on these authorities, petitioners maintain, renders the Courts recent resolution as constitutionally suspect as its progenitors.

Estes v. Texas, 381 U.S. 532 (1965). As argued in the petition, Estes does not represent the most contemporary position of the Supreme Court of the United States on the issue of television cameras inside the courtroom; it has been overtaken by Chandler v. Florida, 449 U.S. 560 (1981).
5

The more notorious examples of these flip-flops are the Dinagat, FASAP and Hacienda Luisita cases. Of more recent vintage is Keppel v. Pioneer, G.R. Nos. 180880-81, 18 September 2012, where the Court en banc once again recalled a decision that had become final and executoryand recorded as such in the Book of Entries of Judgmentscomplicated by a similar circumstance in the FASAP, in that the losing party sent a letter to then Chief Justice Renato Corona.
6

See footnote 21 of the resolution.

The doctrine of stare decisis 7.0 In English, stare decisis et non quiete movere means to stand by decisions and not disturb the undisturbed.7 In matters of jurisprudence, it is deemed sound practice to follow and obey precedents as established by a superior court. In Negros Navigation Co., Inc. v. Court of Appeals, the Court held, to wit:

Adherence xxx is dictated by this Court's policy of maintaining stability in jurisprudence in accordance with the legal maxim "stare decisis et non quieta movere" (Follow past precedents and do not disturb what has been settled.). Where, as in this case, the same questions relating to the same event have been put forward by parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to relitigate the same issue. In Woulfe v. Associated Realties Corporation, the Supreme Court of New Jersey held that where substantially similar cases to the pending case were presented and applicable principles declared in prior decisions, the court was bound by the principle of stare decisis. Similarly, in State ex rel. Tollinger vs. Gill, it was held that under the doctrine of stare decisis a ruling is final even as to parties who are strangers to the original proceeding and not bound by the judgment under the res judicata doctrine. The Philadelphia court expressed itself in this wise: "Stare decisis simply declares that, for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different." 8 8.0 Stare decisis has its uses. To begin with, it permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.9 It reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right.10 On more practical terms, the principle is crucial since it insure[s] that people are guided in their personal and business dealings by prior court decisions, through established and fixed principles they announce.11

Blacks Law Dictionary, 9th ed. 281 SCRA 534, 542-543 (1997). Vasquez v. Hillery, 474 U.S. 254, 265-266 (1986). Agostini v. Felton, 521 U.S. 203, 235 (1997). Corby v. McCarthy, 154 Md. App. 446, 840 A.2d 188, 207 (2003).

10

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9.0 Apart from its theoretical importance, the doctrine has been said to possess operational significance as well. Thus, it has also been held that the application of stare decisis saves resources and promotes judicial efficiency. 12 10.0 Here, whether the doctrine has been applied correctly remains to be seen because, as authorities attest, the rule of stare decisis is not an inexorable command.

The rule of stare decisis is not absolute; exceptions

11.0 The general rule can be formulated that courts refrain from deviating from precedent especially when it has been followed for a long period of time.13 It is safe to say that there is no definite period in terms of exact days, months or years which will render a particular judicial pronouncement immutable, if indeed there can be any. Prior to the Courts reversal of its 14 June 2011 resolution, the ban on television cameras inside courtrooms had been in place for 20 years beginning in 1991 with Aquino and continuing through 2001 in Estrada. In those two decades, the prohibition had been tackled no oftener than two times until challenged here; thus, it cannot be said that stare decisis ought to be observed because many have relied on it.14 In those two challenges, the Court basically found that the constitutional rights of the accused greatly outweigh the freedom of the press, the right of the public to information and the right to a public trial.

12

State v. Ferguson, 260 Conn. 339, 796 A.2d 1118, 1138 (2002). See Missouri v. Ross, 299 U.S. 72, 75 (1936).

13

14

Stare decisis tends to be more strictly observed in cases involving property rights. See, for instance, City of Las Vegas v. Oman, 110 N.M. 425, 796 P.2d 1121 (Ct. App. 1990); Johnson v. Chicago, B. & Q. R. Co., 243 Minn. 58, 66 N.W.2d 763 (1954).

12.0 The Courts 14 June 2011 resolution, however, saw fit to rule differently. As the ponencia held, The indication of serious risks posed by live media coverage to the accuseds right to due process, left unexplained and unexplored in the era obtaining in Aquino and Estrada, has left a blow to the exercise of press freedom and the right to public information.15 In fact, in a sharp departure from Aquino and Estrada, the Court re-visioned the aforesaid freedoms as only seemingly competing but actually complementary rights. 13.0 As earlier mentioned, when compared to the 20-year lifespan of Aquino and Estrada, the 16 months it took for the Court to reverse itself since its 14 June 2011 resolution is a wink in time. (It can even be argued that Aquino and Estrada have roots that go way back, to the mid-1960s, in fact, because of their dependence on Estes.) During those 20-plus years, substantial changes occurred, in technology, social mores, and more to the point, in constitutional interpretation both here and in the United States. As the Courts resolution of 14 June 2011 recognized, Technology tends to provide the only solution to break the inherent limitations of the courtroom, to satisfy the imperative of a transparent, open and public trial.16 14.0 These radical changes, however, cannot be said to have taken place in the 16 months between the Courts first resolution and the second. Petitioners cannot identify a single compelling circumstance or circumstancesother than plain tergiversationthat merited a complete volte face,17 underscored, moreover, by the fact that the first resolution was handed down by a unanimous Court! As it is, the assailed second resolution does not reveal the voting of the Justices; thus, petitioners, as well as the bench and bar, are in the dark as to how the voting went in granting the Ampatuans motion for reconsideration.

15

652 SCRA 1, 18. Id..

16

17

The only notable change, as far as petitioners can tell, involved the impeachment and conviction of a Chief Justice and the appointment of another.

15.0 This departure was possible because, as a judicial policy, stare decisis is not an inflexible rule to be slavishly followed. In this connection, it has been held that the policy is at its weakest in constitutional disputes (such as the case at bar) first, because a Supreme Court interpretation of a Charter provision can only be altered by a constitutional amendment or the overruling of precedent,18 and second, because in such cases, correction through legislative action is practically impossible.19 In Planned Parenthood of Southeastern Pa. v. Casey, a fourway test was formulated by which obedience to, or abandonment of precedent, was in order, thus:

xxx when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability xxx; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, xxx; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine xxx; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification xxx. (citations omitted)20

16.0 As applied to this case, we may legitimately ask if, first, the prohibition against live television coverage in Aquino and Estrada has become unworkable; second, if overturning these authorities will work undue hardship to those who have relied on them; third, whether related principles of law have evolved such as to render these precedents an anachronism; and fourth, whether facts have so changed as to render the prohibition irrelevant or unjustifiable.

18

Agostini v. Felton, supra note 10, 235. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 63 (1996). Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854-855 (1992).

19

20

17.0 Anent the first, the inquiry begs itself because the prohibition is absolute: no television cameras are allowed inside courtrooms. In other words, there is nothing to unwork or that has become unworkable. Now, if the opposite were true, that is, if live coverage of criminal trials were allowed, then the inquiry will turn on whether or not live TV coverage has become so cumbersome, so unfeasible in practice that the effort does not justify the result. But that is not the case. 18.0 As to the second, neither may it be argued that overturning Aquino and Estrada will unduly prejudice those who have relied on them. Pertinent thereto, it has been held that In assessing reliance as a factor weighing against possible overruling of a previous case, the court must ask whether the previous decision has become so embedded, so accepted, so fundamental to everyones expectations that to change it would produce not just re-adjustments but practical real-world dislocations; to have reliance, the knowledge must be of the sort that causes a person or entity to attempt to conform his or her conduct to a certain norm before the triggering event.21

19.0 To repeat an earlier point, the issue of television cameras in Philippine courts has arisen only twice, precisely in these two cases, so anyone will be hard put to argue that over the years, a great number have relied upon them and that the rights of these non-existent great numbers will be gravely prejudiced by reversing Aquino and Estrada. 20.0 With regard to the third and fourth, in the years intervening between Aquino and Estrada and the Courts resolution of 14 June 2011, relevant facts and principles of law have evolved, beginning with Chandler v. Florida22 (which both cases failed to mention and which the Courts resolution of 23 October 2012 continues to ignore) in conjunction with the many authorities cited in the petition pertinent to constitutional rights, history and current events23
21

People v. Petit, 466 Mich. 624, 648, N.W.2d 193, 199 (2002). See footnote 4.

22

23

In the interest of brevity, petitioners will not reproduce them here, but in passing, these would include the model law of California and the state-by-state guide. Suffice it to state that a signal failing of the resolution dated 14 June 2011, as well as that of 23 October 2012, failed to directly address the many constitutional issues raised by petitioners. The Courts own resolution of 14 June 2011 acknowledges also, thus: Other jurisdictions welcome the idea of media coverage. Almost all the proceedings of United Kingdoms Supreme Court are filmed, and

which persuasively establish that prohibiting television cameras inside courtrooms finds no home in the open and transparent atmosphere of the 21st century. Facts, too, have changed: advances in technology, for one, have addressed many of the concerns raised in Estes about the intrusion of television cameras inside trial courts. As the Court itself noted in its 14 June 2011 resolution,

Indeed, the Court cannot gloss over what advances technology has to offer in distilling the abstract discussion of key constitutional precepts into the workable context. Technology per se has always been neutral. It is the use and regulation thereof that need fine-tuning. Law and technology can work to the advantage and furtherance of the various rights herein involved, within the contours of defined guidelines.24 21.0 The inescapable conclusion to be drawn is that stare decisis is not to be adhered to when the precedent is a mere survivor of obsolete constitutional thinking.25

Separate opinions as stare decisis

22.0 In the assailed resolution, the en banc held, to wit, In this case that has achieved notoriety and sensational status, a greater degree of care is required to safeguard the constitutional rights of the accused. To be in the best position to weigh the conflicting testimonies of the witnesses, the judge must not be affected by any outside force or influence. Like any human being, however, a judge is not immune from the pervasive effects of the media.

23.0 To support this argument, the resolution cites the separate opinions on the Hon. Justice Arturo D. Brion in Biraogo v. Philippine Truth Commission 26and Lejano v. People.27 Concurring or dissenting opinions, however, have been held to have no stare decisis effect.28

sometimes broadcast. The International Criminal Court broadcasts its proceedings via video streaming in the internet.
24

Estrada, at 17. Planned Parenthood, supra note 20, at 857.

25

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THE BALANCING-OF-INTERESTS TEST APPLIED IN THE RESOLUTION RUNS CONTRA TO THE COURTS ESTABLISHED RULINGS ON FREEDOM OF SPEECH AND IN TRUTH, THE RIGHTS OF THE ACCUSED AND THOSE OF A FREE PRESS, TO INFORMATION AND TO A PUBLIC TRIAL ARE NOT REPUGNANT TO EACH OTHER. The Supreme Court shall have the following powers: xxx promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, xxx. Such rules xxx shall not diminish, increase, or modify substantive rights. -- section 5(5), article VIII, Constitution

24.0 Often, a motion for reconsideration is junked on the premise that the movant failed to adduce new and convincing arguments that will warrant a reversal of the order or judgment being assailed, the operative word being rehash. It is unfortunateand indeed quite strange that both the resolutions dated 14 June 2011 and 23 October 2012 failed to even discuss, among other points, with some semblance of detail, petitioners assertion that the proscription against television cameras in the courtroom offend (1) freedom of the press; (2) right to information; (3) right to a fair and public trial; (4) right to assembly and to petition the government for redress of grievances; (5) right of free access to courts; and (6) freedom of association. This failure is all the more marked especially where the issue of constitutionality is the very lis mota of the case, as it is here, and the Court usually takes pains to discuss the issues raised, knowing full well that its decisions are not intended for the parties solely, but also for the profession of law and for the academe. As a result, petitioners are compelled to re-state the arguments in their petition, and to be fair, if petitioners are to be condemned for recycling arguments raised in support of the instant motion, the same adjective can also be applied to the resolution of 23 October 2012 which virtually reproduces the ratioalready traversed by petitionersof Aquino and Estrada.

26

637 SCRA 78 (2010). 638 SCRA 104 (2010). In re Thomas-Pinkney, 840 A.2d 700 (D.C. 2004); Boode v. Allied Mut. Ins. Co., 458 P.2d 653 (Wyo. 1969).

27

28

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25.0 In the questioned resolution, the Court held, While this Court recognizes the freedom of the press and the right to public information, which, by the way, are rights that belong to non-direct parties to the case, the rights of the direct parties should not be forgotten. In a clash among these competing interests and in terms of the values the Constitution recognizes, jurisprudence makes it clear that the balance should always be in favor of the accused[,] and as support, proceeds to cite Estrada. As already mentioned, the citation is problematic because it submits as an authority the very same decision whose constitutionality is being assailed. And then there is the obiter dictum to the effect that petitioners are non-direct parties to the case, a characterization which leads to some head-scratching. In a criminal case, the direct parties thereto are the People of the Philippines and the person of the accused; the victim of the crime ceases to be the offended party and as such, his or her interest becomes limited to the civil liability arising from the crime. In the process of splitting hairs, somehow, petitioners have become something less than people of the Philippines and presumably something else entirely, they know not what. 26.0 In any case, prescinding from the above, the assailed resolution regurgitates the notion that the rights of the accused are in competition with the peoples rights, a contention already debunked by the Courts resolution of 14 June 2011, to the effect that these rights, far from being competitive with each other, are in truth complementary. What the two resolutions fail to mention is that this latter characterization has legal support, duly cited by petitioners, in the case of Press-Enterprise Co., v. Superior Court, thus: [i]t is difficult to disagree in the abstract with that court's analysis balancing the defendant's right to a fair trial against the public right of access. It is also important to remember that these interests are not necessarily inconsistent. Plainly, the defendant has a right to a fair trial but, as we have repeatedly recognized, one of the important means of assuring a fair trial is that the process be open to neutral observers.29

29

478 U.S. 1, 7 (1986).

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The crucial difference here is that the authority cited by herein petitioners is not one whose constitutionality is under attack, unlike the Courts continued reliance on Estrada. 27.0 Two points ought to be kept in mind. First, [the freedom of the press] are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and an open society.30 Second, freedom of the press is not merely a private property right inuring to mass media enterprises.31

The result is only as valid as the test applied

28.0 That the banning of television cameras inside courtrooms is a content-based prohibition brooks no argument. This much is clear based on the case of Chavez v. Gonzales 32 cited in the petition whichagainthe resolutions fail to address. The error of the resolution of 23 October 2012 is that it stubbornly persists in applying a balancing-of-interests test when according to the Chavez, it shouldnt be so. As Chavez explains, freedom of the press has four components: (1) freedom from prior restraint; (2) freedom from subsequent punishment; (3) freedom of access to information; and (4) freedom of circulation. Most relevant here is the freedom from prior restraint which consists, basically, of actions by the State to restrict expression and the media in advance of publication or dissemination. The prior restraint element in Aquino and Estrada is evident because they prohibit the mere presence of television cameras inside the courtroom even before broadcasting.

30

Time, Inc. v. Hill, 385 U.S. 374, 389 (1967).

31

State ex rel Miami Herald Publishing Co. v. McIntosh (Fla), 340 So 2d 904 (1976); Firstamerica Development Corp. V. Daytona Beach News-Journal Corp., (Fla) 196 So 2d 97, 15 ALR3d 1238 (1966).
32

545 SCRA 441 (2008).

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29.0 Chavez is also insightful in that it explains the difference between a content-neutral prohibition and a content-based one: the former is merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards whereas the latter is one where the restriction is based on the subject matter of the utterance or speech. The distinction has to be made because it is determinative of the test appropriate to a free speech challenge.

When the speech restraints take the form of a contentneutral regulation, only a substantial governmental interest is required for its validity. Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approach somewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions. The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowlytailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach has been formulated in this manner: A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest. On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster, with the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the content-based restraint will be struck down. With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about especially the gravity and the imminence of the threatened harm otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, "but only by showing a substantive and imminent evil that has taken the life of a reality already on ground." As formulated, "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about
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the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression. Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken. Thus, when the prior restraint partakes of a contentneutral regulation, it is subjected to an intermediate review. A content-based regulation, however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague.33

30.0 In the instant case, the prohibition does not purport to regulate the incidents of speech or control the time, place or manner of expression. On the contrary, it absolutely forbids a very specific set of content: video and audio of the trial itself. Because the ban on television cameras is a content-based prohibition, the conclusion is inevitable that the correct test to apply is the clear and present danger test and not that of balancing-of-interests. 31.0 In applying the clear and present danger test, the State bears the burden of showing that a clear and present danger of a substantive evil exists, one which it has a right to prevent; said evil, being a question of proximity and degree, must be both substantial and imminent. As petitioners have repeatedly said that, in the absence of empirical evidence that television cameras will undoubtedly prejudice an accuseds right to a fair trial, fear is not the equivalent of proof.

33

Id., at 493-496.

15

With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about especially the gravity and the imminence of the threatened harm otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, "but only by showing a substantive and imminent evil that has taken the life of a reality already on ground." As formulated, "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression. Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken.34 32.0 Till now, the assailed resolution has failed to explain why it persists in applying the balancing-of-interests test.

THERE ARE NO FACTUAL BASES TO SUSTAIN THE CONCLUSION

THAT LIVE TELEVISED COVERAGE WILL UNDULY INFLUENCE JUDGES AND WITNESSES.

33.0 In asserting that live televised coverage of judicial proceedings involve an inherent denial of due process, the assailed resolution once more returns to Aquino, to the effect that Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to the camera, or become nervous. They are subject to extraordinary out-of-court influences which might affect their testimony. Also, telecasting not only increases the trial judges responsibility to avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject to the same psychological reactions as laymen. For the defense, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation of his defense.
34

Chavez, at 459.

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The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public.

34.0 Prejudicial publicity, however, has been debunked in a succession of cases35 as sufficient ground to either (a) overturn a conviction, or (b) to enjoin trial. More to the point, in People v. Teehankee, the Court formulated a totality of circumstances test, as follows:

We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and

now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible
reporting enhances an accused's right to a fair trial for, as well pointed out, "a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field . . . The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting in the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. Criticisms against the jury system are mounting and Mark Twain's wit and wisdom put them all in better perspective when he observed: "When a gentleman of high social standing, intelligence, and probity swears that testimony given under the same oath will outweigh with him, street talk and newspaper reports based upon mere hearsay, he is worth a hundred jurymen who will swear to their own ignorance and stupidity . . . Why could not the jury law be so altered as to give men of brains and honesty an equal chance with fools and miscreants?" Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation.
35

People v. Sanchez, 302 SCRA 21 (1999); People v. Sesbreo, 314 SCRA 87 (1999); Larranaga v. Court of Appeals, 287 SCRA 581 (1998); Webb v. De Leon, 247 SCRA 652 (1995); Martelino v. Alejandro, 32 SCRA 106, 117 (1970).

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Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et a1., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden. 36 (emphasis supplied)

35.0 A few points bear repeating, even at the risk of redundancy: 1. the right of an accused to a fair trial is not incompatible to a free press; 2. pervasive publicity is not per se prejudicial to the right of an accused to fair trial; 3. judges are learned in the law and are unlike juries in that the latter need to be protected to preserve their impartiality; and 4. there must be both (a) allegation and (b) proof that the judge has been unduly influenced.

36.0 Mystifyingly, the assailed resolution ignores Teehankee even though the totality-ofcircumstances test formulated therein was subsequently applied in the case of Estrada v. Desierto where it was held,

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is all set to file the criminal cases in violation of his right to due process.

36

249 SCRA 54, 104-106 (1995).

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There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases. The British approach the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat. The American approach is different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial probability of irreparable harm, strong likelihood, clear and present danger, etc. This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul convictions in high profile criminal cases. x x x xxx xxx xxx

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc. and its companion cases. viz.: Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. xxx The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was wisely held: x x x (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that the time this Nations organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In
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addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that societys criminal process satisfy the appearance of justice, Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nations system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. (b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond
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knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. (emphasis supplied) Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of proof. He needs to show more weighty social science evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds of the members of this special panel have already been infected by bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote petitioners submission, the respondent Ombudsman has been influenced by the barrage of slanted news reports, and he has buckled to the threats and pressures directed at him by the mobs. News reports have also been quoted to establish that the respondent Ombudsman has already prejudged the cases of the petitioner and it is postulated that the prosecutors investigating the petitioner will be influenced by this bias of their superior. Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of Criminal Procedure, give investigating prosecutors the independence to make their own findings and recommendations albeit they are reviewable by their superiors. They can be reversed but they cannot be compelled to change their recommendations nor can they be compelled to prosecute cases which they believe deserve dismissal. In other words, investigating prosecutors should not be
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treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the petitioner and the latter believes that the finding of probable cause against him is the result of bias, he still has the remedy of assailing it before the proper court. 37

37.0 Petitioners reiterate that while the Court is not a trier of facts, it nonetheless remains a court of facts. It cannot make its rulings based on conjecture and assumption; a decision must have something to support itself, which pertinently in this case would consist of weighty social science evidence. The assailed resolution perpetuates the erroneous and illogical belief that actual evidence is not necessary to uphold the view that television cameras per se prejudice an accuseds right to a fair trial. 38.0 To drive home the point further, it isnt as if a host of evidence materialized out of nowhere in the 16 months between the June 2011 resolution and the October 2012 resolution that can satisfactorily explain the Courts sudden turnabout. 39.0 Incidentally, insofar as the assailed resolution asserts that the right to a public trial belongs to the accused, such is not an entirely accurate description of the right. As acknowledged in the petition, just as an accused has a right to demand that his trial be held publicly, so too are the peoplein this case the People of the Philippinesentitled to demand that they be allowed to attend a trial. Again, the assailed resolution failed to address this, just as it overlooked Richmond Newspapers Inc. v. Virginia cited in the petition, to the effect that

People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case. The educative effect of public attendance is a material advantage. Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy.38

37

353 SCRA 452, 524-530 (2001). 448 U.S. 555, 572 (1980).

38

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40.0 The same case holds that, in modern society, media have evolved beyond being portals of news and information and have become surrogates that enable people to make lifechanging decisions based on accessible data. In earlier times, both in England and America, attendance at court was a common mode of "passing the time." x x x x With the press, cinema, and electronic media now supplying the representations or reality of the real life drama once available only in the courtroom, attendance at court is no longer a widespread pastime. Yet [i]t is not unrealistic, even in this day, to believe that public inclusion affords citizens a form of legal education, and hopefully promotes confidence in the fair administration of justice. x x x Instead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public. While media representatives enjoy the same right of access as the public, they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard. This contribute[s] to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system. . . .39 REGULATION IS TO BE PREFERRED OVER OUTRIGHT PROHIBITION; NEITHER SHOULD PROHIBITION IN THE GUISE OF REGULATION BE PREFERRED. The devil is compromise. Henrik Ibsen

41.0 Evidently, by ordering that CCTV cameras in lieu of public TV transmit images and audio to selected venues instead of general broadcast, the Court is attempting to forge a compromise between allowing the public to watch the proceedings and closing the proceedings to the wider public. Yet this compromise is unsatisfactory because it delimits the viewing possibilities to those who have the time and opportunity to go to the designated courts where CCTVs have been placed. The general public, in effect, is disenfranchised.

42.0 The Court rationalizes its ruling in this wise:

39

Id., at 572-573.

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To address the physical impossibility of accommodating the large number of interested parties inside the courtroom in Camp Bagong Diwa, it is not necessary to allow the press to broadcast the proceedings here and abroad, but the Court may allow the opening of closed-circuit viewing areas outside the courtroom where those who may be so minded can come and watch the proceedings. This out-of-court, real-time viewing grants to a larger audience the opportunity to monitor the proceedings as if they were inside the trial court but at the same time obviates the massive publicity entailed in media broadcasting. This is similar to the procedure adopted by this Court in allowing members of the public to watch its oral arguments at a viewing area outside of the Session Hall where a large monitor projects the image and sounds from inside the Session Hall in real time. Aside from providing a viewing area outside the courtroom in Camp Bagong Diwa, closed-circuit viewing areas can also be opened in selected trial courts in Maguindanao, Koronadal, South Cotabato, and General Santos City where most of the relatives of the accused and the victims reside, enabling them to watch the trial without having to come to Camp Bagong Diwa. These viewing areas will, at all times, be under the control of the trial court judges involved, subject to this Courts supervision.

It would seem that the Court took inspiration from the Antiterrorism and Effective Death Penalty Act of 1996 cited in the petition. The problem, however, is that this solution benefits the victims and their families yet extends practically nothing to the rest of the populace who, by the terms of the resolution, must travel all the way to the designated areas to watch the proceedings. Thus, if a resident of Samar wishes to apprise himself of the developments in the case, it will not be a simple matter of tuning in; instead, he will have to travel to either Mindanao or Manila to be updated in real-time. A citizen-journalist-blogger will also face the same difficulties, as will, say, crime watchdog organizations that monitor cases such as these. In other words, the compromise is no compromise at all because it severely delimits the audience who can watch the proceedings.

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The imposition of unreasonable conditions

43.0 In its 14 June 2011 resolution permitting the live televised coverage of the Ampatuan trial, the Court saw fit to impose conditions which many in the media saw as unduly harsh and completely unworkable. Among the more objectionable stipulations were (1) paragraph B disallowing selective or partial coverage; (2) paragraph E which requires that broadcasting for a particular day be continuous and in its entirety; (3) paragraph F which forbids commercial breaks or gaps of any kind; and (4) paragraph G which bans voice-overs and extended commentary. 44.0 Initially, when apprised of these conditions, petitioners were agog at their severity since they completely brushed aside the realities of broadcast news. Par. E, for one, presented huge logistical problems. Suppose that in the course of the live broadcast of the trial, a meteor crashed into the front portico of the Court; by the terms of the proviso, the broadcaster is not allowed to switch to breaking news. Par. F, in turn, had important financial consequences: commercial advertisements are the lifeblood of television; by prohibiting commercials, the proviso effectively cut off the means by which news programs sustain themselves financially.

45.0 However, counsel for petitioners reasoned that the Court could not possibly be malicious but instead was forging a new path, necessarily new and untested. Paragraph K, in particular, gave cause for hope since it apparently gave petitioners room to maneuver. At the very least, paragraph K enabled the stakeholders to engage in a continuous dialogue with an agent of the Court to address issues that may arise in such a novel undertaking. With its October 2012 resolution, however, all those provisos have been scotched. 46.0 Nevertheless, some words need to be said about the imposition of unreasonable conditions.

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Averting a confiscatory policy

47.0 In filing the instant motion, petitioners wish to avert a scenario wherein the Court reconsiders but in the process re-imposes the conditionsand then someenumerated in the resolution of 14 June 2011. This would represent no advancement at all. In such a case, the imposition of unworkable conditions gives credence to petitioners Editha Mirandilla-Tiamzon and Glenna Logartas assertion that continuous broadcast without commercial breaks constitute undue taking of private property,40 yet another issue that the Court chose not to address (and essentially a moot point in view of the Courts 23 October 2012 resolution). 48.0 The solution to the impasse can be found in paragraph K in the resolution of 14 June 2011, to wit: (k) The Court shall create a special committee which shall forthwith study, design and recommend appropriate arrangements, implementing regulations, and administrative matters referred to it by the Court concerning the live broadcast of the proceedings pro hac vice, in accordance with the above-outlined guidelines. The Special Committee shall also report and recommend on the feasibility, availability and affordability of the latest technology that would meet the herein requirements. It may conduct consultations with resource persons and experts in the field of information and communication technology. 49.0 A possible source of friction may lie in the fact that the Court sees the media as an adversary when in fact, the opposite can be true. The Court, in its Action Program for Judicial Reform, recognized that, 5.10 The judicial guarantees of and support for free speech, fair comment and public criticism encourage active mass media, which in turn can be influential in strengthening economic security, political liberties, legal and human rights, among other freedoms. 5.11 At the same time, because judicial reforms, current innovations, and latest judicial doctrines and decisions can be communicated through the mass media, the media can help ensure adequate, objective and balanced coverage of the Judiciary and therefore help create an informed public. They also serve as a check-and-balance and feedback mechanism for the general public, and help mobilize community action in support of policies and programs of the Judiciary.41
40

Partial Motion for Reconsideration dated 29 June 2011, 11-12. APJR 2001-2006 (with Supplement), at 94.

41

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50.0 Accordingly, the Court can take its own advice and convene the special committee mentioned in paragraph (k) that will study, design and recommend appropriate actions in relation to the issue of television cameras inside the courtroom. In other words, there is no prohibition against consultation among the stakeholders in the issue leading to the formulation of acceptable guidelines on the matter. 51.0 To recapitulate, absolute prohibitionor a disguised version thereofcannot be justified in the area of constitutional rights when reasonable regulation is a viable and preferred option.

PRAYER
WHEREFORE, it is respectfully prayed that: a. grant instant motion for reconsideration and set aside the Courts resolution dated 23 October 2012; b. convene the special committee per paragraph (k) of the Courts resolution dated 14 June 2011 to formulate the appropriate guidelines for live coverage of the subject trial; c. the allowance of live televised coverage be not made on a pro hac vice basis and instead be a definitive pronouncement applicable to similar cases that may arise in the future. Other reliefs just and equitable under the premises are likewise prayed for.

Makati city for Manila city; 05 December 2012.

PUBLIC INTEREST LAW CENTER Counsel for Petitioners 4/F Kaija Bldg. 7836 Makati Ave. corner Valdez St., Makati City Tel. No. (632) 8993439; Telfax: (632) 8993416 Email Address: publicinterestlawcenter@gmail.com

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Copy Furnished: ATTYS. PHILIP SIGFRID FORTUN & ALBERT LEE G. ANGELES Fortun Narvasa & Salazar Law Offices 23rd Flr. Multinational Bancorporation Centre 6805 Ayala Avenue, 1229 Makati City

HIS EXCELLENCY PRESIDENT BENIGNO S. AQUINO III Malacanang Palace San Miguel, Manila

SOLICITOR GENERAL FRANCIS JARDELEZA 134 Amorsolo St., Legaspi Village 1229 Makati City

HON. JOCELYN A. SOLIS-REYES Presiding Judge Regional Trial Court, Branch 221 Quezon City

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