Brion's Supplemental Opinion on Webb Et Al Re Vizconde Massacre

8/8/2019 Brion's Supplemental Opinion on Webb Et Al Re Vizconde Massacre

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EN BANC

Agenda of December 14, 2010

Item No. 85

G.R. Nos. 176389 and 176864 ANTONIO LEJANO, et al., petitioners

versusCOURT OF APPEALS, et al., respondents.

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 thesub

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 themode of commission of the crime and the personalities involved. From the time

the charges were filed, the case has captured the publics interest that an unusual

amount of air time and print space have been devoted to it. Of late, with the

publics 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.


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In essence, thesub 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 themedia. Although the Rules of Court does not contain a specific provision

imposing the sub judicerule, 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 thesub

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,[1]

may lead to the disregard of other equally compelling constitutional rights

and principles. In Vicente v. Majaducon,[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 judicerule may be

considered as a curtailment of the right to free speech, it is necessary to ensure the


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proper administration of justice and the right of an accused to a fair trial.[3]

Both

these latter concerns are equally paramount and cannot lightly be disregarded.

Before proceeding with this line of thought, however, let me clarify thatthe sub judicerule is not imposed on all forms of speech. In so far as criminal

proceedings are concerned, two classes ofpublicizedspeech made during the

pendency of the proceedings can be considered as contemptuous:first, comments

on the merits of the case, andsecond, 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

unrestrictedpublicizedspeech.

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] 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 judicerule 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 judicerule is to preserve the impartiality of the judicial system by

protecting it from undue influence.[5]

Public opinion has no place in a criminaltrial. 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


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that the determination of such facts should be uninfluenced by bias,prejudice or sympathies.

[6]

The right to a fair trial is an adjunct of the accuseds right to due process whichguarantees [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]

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]

If the media publish prejudicial material, they can appear to urge, or mayin 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 anoutcome 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 mediaopinion, 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 evidencepresented in court, even if it was.

[9]

The accused must be assured of a fair trial notwithstanding the prejudicial

publicity;[10]

he has a constitutional right to have his cause tried fairly by an

impartial tribunal, uninfluenced by publication or public clamor.[11]

Thesub

judice doctrine protects against the appearance of decisions having been influenced

by published material.[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


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against the influence of the most powerful media of public opinion.[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]

Also, it is not necessary that the publicity actually influenced the courtsdisposition of the case; the actual impact of prejudicial publicity is not relevant to

liability forsub judice contempt.[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 toit.[16]

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]

If thespeech 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]

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]

Without thesub 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


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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]

The criticism

must, however, be fair, made in good faith, and not spill over the walls of decencyand propriety.

[21]And to enhance the open court principle and allow the people to

make fair and reasoned criticism of the courts, thesub 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]

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 thesub judice rule to the present case, the reason isobvious 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 thattranspired.

Lest we be misunderstood, our application of thesub 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


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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.

[1] See Justice Blacks concurring opinion in Smith v. California, 361 U.S. 147 (1959), part of which reads:

Certainly the First Amendment's language leaves no room for inference that abridgments ofspeech 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 puttingthese freedoms wholly "beyond the reach" of federal power to abridge. No other provision of theConstitution purports to dilute the scope of these unequivocal commands of the FirstAmendment. 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, court-made, not

Constitution-made. (361 U.S. 147, 157-159).[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]

Law Reform Commission New South Wales, Discussion Paper 43 (2000) Contempt byPublication, http://www.lawlink.nsw.gov.au/lrc.nsf/pages/dp43chp02, last visited December 9, 2010.[4]

Ibid.; the Discussion Paper 43 (2000) of the Law Reform Commission of New South Wales has identified some

high-risk publications against which thesub 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 forcommitting 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]Ibid.[6]Nestle v. Sanchez, Nos. L-75209 and 78791, September 30, 1987, 154 SCRA 542, 546.[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. 01-4-03-SC, June 29, 2001, 360 SCRA 248, 259-260.[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] Supra note 3.[10] See Wayne Overbeck, Major Principles in Media Law, p. 298.[11]Supra note 6, at 546.[12]Supra note 3.


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[13]Supra note 7, at 260.[14] Separate Opinion of the author inLouis "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 publicopinion that news of government scandals generate, it does not require a leap of faith to concludethat an accused brought to court against overwhelming public opinion starts his case with less thanequal 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]Supra note 3.[16]Supra note 7, at 259-260.[17]Supra note 8, at 82, citing J. Perfectos dissenting opinion inIn re Francisco Brillantes, 42 O.G. 59.[18]

Id. at 94.[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,citingRoxas v. Zuzuarregui, G.R. Nos. 152072 & 152104, July 12, 2007, 527 SCRA 446.

[20]Id.at 434.[21]Tiongco v. Savillo, A.M. No. RTJ-02-1719, March 31, 2006, 486 SCRA 48, 64, citingIn re Almacen, infra note

22.[22]In re Almacen, No. L-27654, February 18, 1970, 31 SCRA 562.

Brion's Supplemental Opinion on Webb Et Al Re Vizconde Massacre

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