Free expression, the Sub Judice rule, and the “UP 37”

In an Explanatory Note to a bill she introduced on the Sub Judice Rule, Sen. Defensor-Santiago noted that the rule means that all should refrain from commenting on any matter sub judice (“under a judge”). But she also said in effect that it has already been recognized elsewhere, especially in the U.S., that a literal application of the Rule would run counter to the constitutional guarantee of freedom of expression.  Black’s notes that when a judicial “gag order” is directed to the press, the order is unconstitutional.

In a news report, the Supreme Court spokesperson Jose Midas Marquez said that lawyers are barred from making public statements that tend to influence public opinion while a case is pending.

A literal reading of the Sub Judice Rule means that no one can comment on any pending case.  And yet a Court spokesperson himself violates the Rule by making a comment to the effect that the Rule should be read literally, given that promoting such a construction of the Rule would of course “tend to influence public opinion.”  In effect, he says that lawyers (and perhaps the public as well) should just “shut up,” because the case is sub judice.  It seems to rise to prior restraint, in which case it would seem to be “improper conduct” under Rule 71, sec. 3(d) [1].

A literal reading can also border on the ridiculous when, for example, one who may be charged criminally may try to use the Sub Judice Rule to justify remaining silent, even when the Constitution allows him that anyway. See G.R. No. 174105.

The case of the “UP 37” would perhaps require the Supreme Court to clarify the relationship between the Sub Judice Rule and freedom of expression.   It seems reasonable to expect the UP 37 to argue that the present formulation of the Rule suffers from overbreadth.  A potential problem is that the Court will have to judge its own Rules of Court, and it will be for it to show and act with impartiality as otherwise the proceeding could be rendered invalid as a violation of the Due Process clause.

Sometimes words are just that.  Sometimes what is sensible is more than words.

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[1] Rule 71, Sec. 3 reads as follows:

“After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:

(a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;

(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;

(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule;

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;

(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;

(f) Failure to obey a subpoena duly served;

(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him.

But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings.”


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4 thoughts on “Free expression, the Sub Judice rule, and the “UP 37”

  1. May kasabihan, “Ang Pikon ay laging Talo”. Sino kaya ang napikon dito? Ang 37 signatories ng UP College of Law Faculty o ang “Corona Supreme Court”? Oops sori mali, ang “Arroyo Supreme Court” pala…

    I hope I don’t get a “Show Cause” letter for this comment…kawawa naman ako…I failed my law 101 pa naman…

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  2. Good day, I just wanna ask, in your opinion, did the UP Law 37 violate the Sub Judice Rule? Do you think the clear and present danger rule should have been the very basis if there really was a violation of the rule? Thank you!

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    1. I believe the UP 37 case is still pending, and therefore sub judice. So, technically, we can’t comment, except perhaps just to ask questions, as you just did. And good questions they are.

      But apart from the particulars of the UP 37 case, I believe the sub judice rule applies to litigants, witnesses, judges, juries, anyone with a demarcated role in the judicial process. Everyone else has free expression.

      As to clear and present danger, I understand that that’s a throwback to the American regime, and no longer controlling. But then you never know. After all, the powers just enacted the Cyberlibel Law, a clearly unconstitutional construct. Go figure.

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