The term sub judice literally means under judicial consideration 1 or before the court or judge

for determination.2 At its most basic, the sub judice rule prohibits the publication of statements
which may prejudice court proceedings.3 Generally, the sub judice rule is a foreign legal
concept. It originated in countries such as the United States, whose justice systems have adopted
the trial by jury system. The courts apply the sub judice rule to isolate jury members from being
influenced by the prejudicial publicity. However, Philippine courts frequently invoke the rule,
notwithstanding the obvious differences between a jury system and the Philippine court system.

Justice Brion, in a Supplemental Opinion issued in the Vizconde Massacre Case, argues in his
Supplemental Opinion that 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.

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:

(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.4

1
The Onatrio Ministry of the Attorney General
2
Blacks Law Dictionary, 9th Edition
3
Robert Martin, Media Law, 2d ed (Toronto: Irwin Law, 2003) at 95
4
People v. Webb, et al. (G.R. No. 176864, 14 December 14, 2010) and Lejano v. People (G.R. No. 176389, 14 December 2010)
The sub judice rule restricts comments and disclosures pertaining to judicial proceedings to
avoid prejudging the issue, influencing the court, or obstructing the administration of justice. The
rationale for the rule is 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.5
For a comment to be considered as contempt of court "it must really appear" that such does
impede, interfere with and embarrass the administration of justice. What is, thus, sought to be
protected is the all-important duty of the court to administer justice in the decision of a pending
case. The specific rationale for the sub judice rule is that courts, 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 power of contempt is inherent in all courts in order to allow them to conduct their business
unhampered by publications and comments which tend to impair the impartiality of their
decisions or otherwise obstruct the administration of justice. As important as the maintenance of
freedom of speech, is the maintenance of the independence of the Judiciary. The "clear and
present danger" rule may serve as an aid in determining the proper constitutional boundary
between these two rights.6

This, of course, is not meant to suppress 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 asafeguardagainstjudicialarbitrarinessandthat(b)the
publicsconfidenceintheadministrationofjusticeismaintained.Thecriticismmust,however,
befair,madeingoodfaith,andnotspilloverthewallsofdecencyandpropriety.Andtoenhance

5
Nestle Philippines v. Sanchez (G. R. 75209)

6
Maratan v. Diokno (G.R. No. 205956, February 12, 2014)

theopencourtprincipleandallowthepeopletomakefairandreasonedcriticismofthecourts,
thesubjudiceruleexcludesfromitscoveragefairandaccuratereports(withoutcomment)of
whathaveactuallytakenplaceinopencourt.7

In the United States, the sub judice rule also used to be seen as a reasonable restriction on the
freedom of the press. Today, however, most U.S. Supreme Court decisions regard it as an
unconstitutional impairment of the latter. In Sheppard v. Maxwell, 384 U.S. 362-363, the US.
Supreme Court noted that: there is nothing that proscribes the press from reporting events that
transpire in the courtroom. This is just like saying that once a public hearing had been held,
what transpired there could not be subject to prior restraint. The Court found that Sheppard did
not receive a fair trial, although the freedom of expression should be given great latitude, it must
not be so broad as to divert the trial away from its primary purpose: that is, adjudicating both
criminal and civil matters in an objective, calm, and solemn courtroom setting. In addition, the
blatant and hostile trial coverage by Clevelands radio and print media and the physical
arrangement of the courtroom itself which facilitated collaboration between the prosecution and
present media, all combined to so deny him a fair trial.
That trend in America is decidedly an improvement on the sub judice rule. It affirms and
supports that idea that a peoples liberty depends on the freedom of the press which cannot be
limited without being lost. Now, if Philippine courts have transplanted the sub judice rule into
local jurisprudence, perhaps then, it is also high time that they improve on it. The constitutional
guarantees of free speech, free press, and right to information occupy lofty positions in the
Filipino peoples hierarchy of values. Any attempt at freezing them, which gag orders or other
form of prior restraint do, must be shown to be necessitated by an interest more substantial than
the guarantees themselves.8
7
People v. Webb, et al. (G.R. No. 176864, 14 December 14, 2010) and Lejano v. People (G.R. No. 176389, 14 December 2010)
8
Explanatory Note, Introduced by Senator Miriam Defensor-Santigo (Senate S.B. No. 1375)