A.M. No. 01-4-03-S.C.

       June 29, 2001

RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL OF IN THE

SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE FORMER
PRESIDENT JOSEPH E. ESTRADA.

SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA

BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO and ATTY.
RICARDO ROMULO, petitioners, 
vs.
JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES, oppositors.

VITUG, J.:

The travails of a deposed President continue. The Sandiganbayan reels to start hearing the
criminal charges against Mr. Joseph E. Estrada. Media seeks to cover the event via  live
television and live radio broadcast and endeavors this Court to allow it that kind of access to the
proceedings.

On 13 March 2001, the Kapisanan ng mga BroadKaster ng Pilipinas (KBP), an association

representing duly franchised and authorized television and radio networks throughout the
country, sent a letter requesting this Court to allow live media coverage of the anticipated trial of
the plunder and other criminal cases filed against former President Joseph E. Estrada before the
Sandiganbayan in order "to assure the public of full transparency in the proceedings of an
unprecedented case in our history."2 The request was seconded by Mr. Cesar N. Sarino in his
letter of 05 April 2001 to the Chief Justice and, still later, by Senator Renato Cayetano and
Attorney Ricardo Romulo.

On 17 April 2001, the Honorable Secretary of Justice Hernando Perez formally filed the instant
petition,3 submitting the following exegesis:

"3. The foregoing criminal cases involve the previous acts of the former highest official
of the land, members of his family, his cohorts and, therefore, it cannot be over
emphasized that the prosecution thereof, definitely involves a matter of public concern
and interest, or a matter over which the entire citizenry has the right to know, be informed
and made aware of.

"4. There is no gainsaying that the constitutional right of the people to be informed on
matters of public concern, as in the instant cases, can best be recognized, served and
satisfied by allowing the live radio and television coverage of the concomitant court
proceedings.

"5. Moreover, the live radio and television coverage of the proceedings will also serve the
dual purpose of ensuring the desired transparency in the administration of justice in order
to disabuse the minds of the supporters of the past regime of any and all unfounded
 notions, or ill-perceived attempts on the part of the present dispensation, to railroad the
instant criminal cases against the Former President Joseph Ejercito Estrada."4

Public interest, the petition further averred, should be evident bearing in mind the right of the
public to vital information affecting the nation.

In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of this Court in
a case for libel filed by then President Corazon C. Aquino. The resolution read:

"The records of the Constitutional Commission are bereft of discussion regarding the
subject of cameras in the courtroom. Similarly, Philippine courts have not had the
opportunity to rule on the question squarely.

"While we take notice of the September 1990 report of the United States Judicial
Conference Ad Hoc Committee on Cameras in the Courtroom, still the current rule
obtaining in the Federal Courts of the United States prohibits the presence of television
cameras in criminal trials. Rule 53 of the Federal Rules of Criminal Procedure forbids the
taking of photographs during the progress of judicial proceedings or radio broadcasting of
such proceedings from the courtroom. A trial of any kind or in any court is a matter of
serious importance to all concerned and should not be treated as a means of
entertainment. To so treat it deprives the court of the dignity which pertains to it and
departs from the orderly and serious quest for truth for which our judicial proceedings are
formulated.

"Courts do not discriminate against radio and television media by forbidding the
broadcasting or televising of a trial while permitting the newspaper reporter access to the
courtroom, since a television or news reporter has the same privilege, as the news
reporter is not permitted to bring his typewriter or printing press into the courtroom.

"In Estes vs. Texas. the United States Supreme Court held that television coverage of
judicial proceedings involves an inherent denial of the due process rights of a criminal
defendant. Voting 5-4, the Court through Mr. Justice Clark identified four (4) areas of
potential prejudice which might arise from the impact of the cameras on the jury,
witnesses, the trial judge and the defendant. The decision in part pertinently stated:

"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 judge's 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 defendant, telecasting is a form of
mental harassment and subjects him to excessive public exposure and distracts
him from the effective presentation of his defense. 1âwphi1.nêt
 'The television camera is a powerful weapon which intentionally or inadvertently
can destroy an accused and his case in the eyes of the public.'

"Representatives of the press have no special standing to apply for a writ of mandate to
compel a court to permit them to attend a trial, since within the courtroom, a reporter's
constitutional rights are no greater than those of any other member of the public. Massive
intrusion of representatives of the news media into the trial itself can so alter or destroy
the constitutionally necessary judicial atmosphere and decorum that the requirements of
impartiality imposed by due process of law are denied the defendant and a defendant in a
criminal proceeding should not be forced to run a gauntlet of reporters and photographers
each time he enters or leaves the courtroom.

"Considering the prejudice it poses to the defendant's right to due process as well as to
the fair and orderly administration of justice, and considering further that the freedom of
the press and the right of the people to information may be served and satisfied by less
distracting, degrading and prejudicial means, live radio and television coverage of court
proceedings shall not be allowed. Video footages of court hearings for news purposes
shall be restricted and limited to shots of the courtroom, the judicial officers, the parties
and their counsel taken prior to the commencement of official proceedings. No video
shots or photographs shall be permitted during the trial proper.

" Accordingly, in order to protect the parties' right to due process, to prevent the
distraction of the participants in the proceedings and in the last analysis, to avoid
miscarriage of justice, the Court resolved to PROHlBIT live radio and television
coverage of court proceedings. Video footage of court hearings for news purposes shall
be limited and restricted as above indicated."

Admittedly, the press is a mighty catalyst in awakening public consciousness, and it has become
an important instrument in the quest for truth. 5 Recent history exemplifies media's invigorating
presence, and its contribution to society is quite impressive. The Court, just recently, has taken
judicial notice of the enormous effect of media in stirring public sentience during the
impeachment trial, a partly judicial and partly political exercise, indeed the most-watched
program in the boob-tubes during those times, that would soon culminate in EDSA II.

The propriety of granting or denying the instant petition involve the weighing out of the
constitutional guarantees of freedom of the press and the right to public information, on the one
hand, and the fundamental rights of the accused, on the other hand, along with the constitutional
power of a court to control its proceedings in ensuring a fair and impartial trial.6

When these rights race against one another, jurisprudence7 tells us that the right of the accused
must be preferred to win.

With the possibility of losing not only the precious liberty but also the very life of an accused, it
behooves all to make absolutely certain that an accused receives a verdict solely on the basis of a
just and dispassionate judgment, a verdict that would come only after the presentation of credible
evidence testified to by unbiased witnesses unswayed by any kind of pressure, whether open or
subtle, in proceedings that are devoid of histrionics that might detract from its basic aim to ferret
veritable facts free from improper influence, 8 and decreed by a judge with an unprejudiced mind,
unbridled by running emotions or passions.

Due process guarantees the accused a presumption of innocence until the contrary is proved in a
trial that is not lifted above its individual settings nor made an object of public's attention and
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.

Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy
climate, with every reason to presume firmness of mind and resolute endurance, but it must also
be conceded that "television can work profound changes in the behavior of the people it focuses
on."11

Even while it may be difficult to quantify the influence, or pressure that media can bring to bear
on them 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.12 It might be farcical to build around them an impregnable armor against the influence
of the most powerful media of public opinion.13

To say that actual prejudice should first be present would leave to near nirvana the subtle threats
to justice that a disturbance of the mind so indispensable to the calm and deliberate dispensation
of justice can create.14 The effect of television may escape the ordinary means of proof, but it is
not far-fetched for it to gradually erode our basal conception of a trial such as we know it now. 15

An accused has a right to a public trial but it is a right that belongs to him, more than anyone
else, where his life or liberty can be held critically in balance. A public trial aims to ensure that
he is fairly dealt with and would not be unjustly condemned and that his rights are not
compromised in secrete conclaves of long ago. A public trial is not synonymous with publicized
trial; it only implies that the court doors must be open to those who wish to come, sit in the
available seats, conduct themselves with decorum and observe the trial process. In the
constitutional sense, a courtroom should have enough facilities for a reasonable number of the
public to observe the proceedings, not too small as to render the openness negligible and not too
large as to distract the trial participants from their proper functions, who shall then be totally free
to report what they have observed during the proceedings.16

The courts recognize the constitutionally embodied freedom of the press and the right to public
information. It also approves of media's exalted power to provide the most accurate and
comprehensive means of conveying the proceedings to the public and in acquainting the public
with the judicial process in action; nevertheless, within the courthouse, the overriding
consideration is still the paramount right of the accused to due process 17 which must never be
allowed to suffer diminution in its constitutional proportions. Justice Clark thusly pronounced,
"while a maximum freedom must be allowed the press in carrying out the important function of
informing the public in a democratic society, its exercise must necessarily be subject to the
maintenance of absolute fairness in the judicial process."18

This Court, in the instance19 already mentioned, citing Estes vs. Texas,20 the United States
Supreme Court holding the television coverage of judicial proceedings as an inherent denial of
due process rights of an accused, also identified the following as being likely prejudices:

"1. The potential impact of television x x x is perhaps of the greatest significance. x x x.

From the moment the trial judge announces that a case will be televised it becomes a
cause celebre. The whole community, x x x becomes interested in all the morbid details
surrounding it. The approaching trial immediately assumes an important status in the
public press and the accused is highly publicized along with the offense with which he is
charged. Every juror carries with him into the jury box these solemn facts and thus
increases the chance of prejudice that is present in every criminal case. x x x.

"2. The quality of the testimony in criminal trials will often be impaired. The impact upon
a witness of the knowledge that he is being viewed by a vast audience is Simply
incalculable. Some may be demoralized and frightened, some cocky and given to
overstatement; memories may falter, as with anyone speaking publicly, and accuracy of
statement may be severely undermined. x x x. Indeed, the mere fact that the trial is to be
televised might render witnesses reluctant to appear and thereby impede the trial as well
as the discovery of the truth.

"3. A major aspect of the problem is the additional responsibilities the presence of
television places on the trial judge. His job is to make certain that the accused receives a
fair trial. This most difficult task requires his undivided attention. x x x

"4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its
presence is a form of mental if not physical-harassment, resembling a police line-up or
the third degree. The inevitable close-up of his gestures and expressions during the ordeal
of his trial might well transgress his personal sensibilities, his dignity, and his ability to
concentrate on the proceedings before him -sometimes the difference between life and
death -dispassionately, freely and without the distraction of wide public surveillance. A
defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a
city or nationwide arena. The heightened public clamor resulting from radio and
television coverage will inevitably result in prejudice."

In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and radio
coverage could have mischievous potentialities for intruding upon the detached atmosphere that
should always surround the judicial process.21

The Integrated Bar of the Philippines, in its Resolution of 16 Apri1 2001, expressed its own
concern on the live television and radio coverage of the criminal trials of Mr. Estrada; to
paraphrase: Live television and radio coverage can negate the rule on exclusion of witnesses
during the hearings intended to assure a fair trial; at stake in the criminal trial is not only the life
and liberty of the accused but the very credibility of the Philippine criminal justice system, and
live television and radio coverage of the trial could allow the "hooting throng" to arrogate unto
themselves the task of judging the guilt of the accused, such that the verdict of the court will be
acceptable only if popular; and live television and radio coverage of the trial will not subserve
the ends of justice but will only pander to the desire for publicity of a few grandstanding lawyers.

It may not be unlikely, if the minority position were to be adopted, to see protracted delays in the
prosecution of cases before trial courts brought about by petitions seeking a declaration of
mistrial on account of undue publicity and assailing a court a quo's action either allowing or
disallowing live media coverage of the court proceedings because of supposed abuse of
discretion on the part of the judge.

En passant, the minority would view the ponencia as having modified the case law on the
matter. Just to the contrary, the Court effectively reiterated its standing resolution of 23 October
1991. Until 1991, the Court had yet to establish the case law on the matter, and when it did in its
23rd October resolution, it confirmed, in disallowing live television and radio coverage of court
proceedings, that "the records of the Constitutional Commission (were) bereft of discussion
regarding the subject of cameras in the courtroom" and that "Philippine courts (had) not
(therefore) had the opportunity to rule on the question squarely."

But were the cases decided by the U.S. courts and cited in the minority opinion really in point?

In Nebraska Press Association vs, Stewart,22 the Nebraska State trial judge issued an order
restraining news media from publishing accounts of confession or admissions made by the
accused or facts strongly implicating him. The order was struck down. In Richmond
Newspaper; Inc., vs, Virginia,23 the trial judge closed the courtroom to the public and all
participants except witnesses when they testify. The judge was reversed by the U.S. Supreme
Court which ruled that criminal trials were historically open. In Globe Newspaper vs. Superior
Court,24 the US Supreme Court voided a Massachusetts law that required trial judges to exclude
the press and the public from the courtroom during the testimony of a minor victim of certain
sexual offenses.

Justice Steward, in Chandler vs. Florida,25 where two police officers charged with burglary
sought to overturn their conviction before the US Supreme Court upon the ground that the
television coverage had infringed their right to fair trial, explained that "the constitutional
violation perceived by the Estes Court did not stem from the physical disruption that might one
day disappear with technological advances in the television equipment but inhered, rather, in the
hypothesis that the mere presence of cameras and recording devices might have an effect on the
trial participants prejudicial to the accused."26

Parenthetically, the United States Supreme Court and other federal courts do not allow live
television and radio coverage of their proceedings.

The sad reality is that the criminal cases presently involved are of great dimensions so involving
as they do a former President of the Republic. It is undeniable that these cases have twice
become the nation's focal points in the two conflicting phenomena of EDSA II and EDSA III
where the magnitude of the events has left a still divided nation. Must these events be invited
anew and risk the relative stability that has thus far been achieved? The transcendental events in
our midst do not allow us to turn a blind eye to yet another possible extraordinary case of mass
action being allowed to now creep into even the business of the courts in the dispensation of
justice under a rule of law. At the very least, a change in the standing rule of the court contained
in its resolution of 23 October 1991 may not appear to be propitious.

Unlike other government offices, courts do not express the popular will of the people in any
sense which, instead, are tasked to only adjudicate justiciable controversies on the basis of what
alone is submitted before them.27 A trial is not a free trade of ideas, Nor is a competing market of
thoughts the known test of truth in a courtroom.28

The Court is not all that umnindful of recent technological and scientific advances but to chance
forthwith the life or liberty of any person in a hasty bid to use and apply them, even before ample
safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price too
high to pay.

WHEREFORE, the petition is DENIED.