Sub Judice Rule and Excommunication by Joel Butuyan

A supposed violation of the sub judice rule is most likely a major argument that the Supreme Court will use against the brave UP Faculty members who came out with a commendable statement in the plagiarism issue.

If memory serves me right, even in contemporary jury trials in the United States — a country whose jurisprudence the Philippine Supreme Court loves to copy — the sub judice rule is not used by its courts to prevent the public (lawyers included) from publicly airing their views, arguments and criticisms in on-going trials.

The sub judice rule is never used to stifle public discussion or to prohibit public exercise of the constitutional right of free speech in on-going US jury trials.

What contemporary US Courts do is either of two things. First, they sequester the members of the jury by housing them in a hotel where their access to the media is restricted. Second, the jury members are allowed to go home but they are given strict orders to refrain from watching news on tv, listening to radio news, and reading newspapers.

If memory serves me right, contemporary US Courts never issue orders directing the public to refrain from engaging in a public discussion of on going trials and they never penalize the public (media practitioners and lawyers included) for exercising their constitutional right of free speech in connection with on going trials.

Contemporary US courts allow and never intervene in a vibrant, spirited, and even scathing discussion of a rainbow of views by the public at large on various aspects of an on going trial, no matter how potentially socially volatile the issues may be.

The Philippines does not have a jury system. The Philippine Supreme Court has had a long history of following US legal traditions. These twin features should prompt the Philippine Supreme Court to take a long pause and do a careful assessment before it decides to even initiate an investigation into the statement issued by the brave UP Faculty members.

Moreover, a re-examination of the history and sociological background of the sub judice rule may enlighten the Court on the propriety of still using the sub judice rule in this modern day and age.

I have a stinking suspicion that the sub judice rule was a tool widely employed during the reign of colonial masters. I have a stinking suspicion that the sub judice rule was employed by colonial courts to stifle public discussion and consequently prevent insurrection and revolt that may result from manifestly unjust and brazenly unfair decisions of their kangaroo courts.

I also have a stinking suspicion that the sub judice rule was widely employed by home-grown dictators — Marcos included — to stifle public dissent from lutong macao decisions of their kangaroo courts.

Like ex-communication, the sub judice rule is a relict of the lamentable past.

The Supreme Court must do a careful, thorough and exhaustive study of the historical and sociological background of the sub judice rule in this respect. If my suspicion on the historical and sociological background of the sub judice rule proves correct and the current Supreme Court decides to wield the rule as an instrument of punishment, there is grave danger that the judgment of history may harshly label the current members of the Supreme Court as successors of the lamentable colonial courts.

In this modern age of democracy, there is potential irreparable damage to the Supreme Court as a democratic institution if its current members rule that the cornerstone principle of democracy — the principle of “free trade in ideas” — does not apply to the Supreme Court.

It will do well for the current members of the Supreme Court to hark back to and revisit the pronouncements of their eminent predecessors, as follows:

“Courts and judges are not sacrosanct. They should expect critical evaluation of their performance. For like the executive and the legislative branches, the judiciary is rooted in the soil of democratic society and nourished by the periodic appraisal of citizens whom it should serve.”

“Ultimate good desired is better reached by the free trade in ideas… that the best test of truth is the power of a thought to be accepted in the competition of the market, and truth is the only ground by which their wishes can be carried out.”

“Sunshine is the best anti-septic; the maligned should answer back and let the marketplace of ideas work; when an idea is exposed to the public for debate, its merits and demerits are exposed and eventually, the public will know the truth and the false.

6 thoughts on “Sub Judice Rule and Excommunication by Joel Butuyan

  1. Renato Pacifico says:

    Example: OJ Simpson trial and Bill Clinton and Monica Lewinsky inquisition.

  2. Renato Pacifico says:

    But, hey! What goot is justice if these english-speaking jurors cannot know when evidences are trampled, violated and contaminated. Example: Failon murder/suicide and Ampatuan.

    If these two cases were tried in the U.S. the judge will send them back to law schools.

  3. In an Explanatory Note to a bill she introduced on the sub judice rule, Sen. Defensor-Santiago noted that the Sub Judice 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.

    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.   The UP 37 would likely argue that the present formulation of the Rule suffers from overbreadth.  The 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.

    • Thanks Orland for your thought provoking comment. I’m of the belief that the sub-judice rule is really meant for the jury type system where common people siting as judges of their peers may be influenced by anything said about the case. I don’t think it should apply at all to our system where only judges trained in the rules of evidence sit to judge cases.

      • But from the jurisprudence, esp. the Nestle case, it seems the Rule is invoked to support a judgment of indirect contempt. If the judgment is from the Supreme Court, there is no further recourse other than in the courts of public opinion, or (horrors!) on an argument that it would be a culpable violation of the constitutional guarantee of free expression.

        I also believe the “show cause” order is inconsistent with presumption of innocence.

  4. where i see the kangaroo?