G.R. No.

176389 - ANTONIO LEJANO, petitioner, -versus- PEOPLE OF THE

PHILIPPINES, respondent.

G.R. No. 176864 – PEOPLE OF THE PHILIPPINES, appellee, -versus- HUBERT

JEFFREY P. WEBB, et al., appellants.

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, may lead to the disregard of other equally
compelling constitutional rights and principles. In Vicente v. Majaducon, 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.” 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, and second, 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.
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.”
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.

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.”

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.

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.

The accused must be assured of a fair trial notwithstanding the prejudicial publicity; he has a
constitutional right to have his cause tried fairly by an impartial tribunal, uninfluenced by
publication or public clamor. “The sub judice doctrine protects against the appearance of
decisions having been influenced by published material.”
 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.” 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.

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.” 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.

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[.]” 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. “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.” 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. The criticism must,
however, be fair, made in good faith, and “not spill over the walls of decency and propriety.”
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. 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.

ARTURO D. BRION

Associate Justice