IN ESSENCE WHAT IS THE SUB JUDICE RULE?

In essence, the sub judice rule restricts comments and disclosures pertaining to
pending judicial proceedings.
TO WHOM DOES IT APPLY?
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.
WHAT IS THE LEGAL BASIS OF THE SUB JUDICE RULE?
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[.]
WHAT IS THE USUAL DEFENSE OF PERSONS FACING CHARGES FOR
INDIRECT CONTEMPT FOR VIOLATION OF THE SUB JUDICE RULE?
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.
IS THIS A VALID DEFENSE?
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][1] may
lead to the disregard of other equally compelling constitutional rights and
principles. In Vicente v. Majaducon,[2][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 publics right to free speech and the governments 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][3] Both these
latter concerns are equally paramount and cannot lightly be disregarded.

IS THE SUB JUDICE RULE IMPOSED ON ALL FORMS OF SPEECH?

No. Only on publicized speech. The Constitution simply gives the citizens the
right to speech, not the right to unrestricted publicized speech.
WHAT IS PUBLICIZED SPEECH?
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.
IN CRIMINAL PROCEEDINGS WHAT ARE PROHIBITED PUBLICIZED
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.
WHAT IS MEANT BY COMMENTS ON THE MERITS OF THE CASE?
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][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 accuseds 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][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][6]
The right to a fair trial is an adjunct of the accuseds 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][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][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 jurys 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 jurys decision was not impartial and based on the evidence
presented in court, even if it was.[9][9]
The accused must be assured of a fair trial notwithstanding the prejudicial
publicity;[10][10] he has a constitutional right to have his cause tried fairly by an
impartial tribunal, uninfluenced by publication or public clamor.[11][11] The sub
judice doctrine protects against the appearance of decisions having been
influenced by published material.[12][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][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][14]
Also, it is not necessary that the publicity actually influenced the courts
disposition of the case; the actual impact of prejudicial publicity is not relevant to
liability for sub judice contempt.[15][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][16]
WHAT IS MEANT BY COMMENT ON THE CONDUCT OF THE COURTS WITH
RESPECT TO THE CASE?
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][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][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][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 peoples 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 publics
confidence in the administration of justice is maintained. [20][20] The criticism must,
however, be fair, made in good faith, and not spill over the walls of decency and
propriety.[21][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][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.
[1][1] See Justice Blacks concurring opinion in Smith v. California, 361 U.S. 147
(1959), part of which reads:
Certainly the First Amendments 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, courtmade, not Constitution-made. (361 U.S. 147, 157-159).
[2][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][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][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][5] Ibid.
[6][6] Nestle v. Sanchez, Nos. L-75209 and 78791, September 30, 1987, 154
SCRA 542, 546.
[7][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. 01-403-SC, June 29, 2001, 360 SCRA 248, 259-260.
[8][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][9] Supra note 3.
[10][10] See Wayne Overbeck, Major Principles in Media Law, p. 298.
[11][11] Supra note 6, at 546.
[12][12] Supra note 3.
[13][13] Supra note 7, at 260.
[14][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][15] Supra note 3.
[16][16] Supra note 7, at 259-260.
[17][17] Supra note 8, at 82, citing J. Perfectos dissenting opinion in In re
Francisco Brillantes, 42 O.G. 59.
[18][18] Id. at 94.
[19][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][20] Id.at 434.
[21][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][22] In re Almacen, No. L-27654, February 18, 1970, 31 SCRA 562.