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Commenting on the 'evidence:' They all do it
Seems just about anyone gets to have his or her say in the trial of impeached Chief Justice Renato Corona. But should everyone get away with just running their mouths off or publishing commentary as “news”— or worse, as “evidence”? There's almost as much argument about that as the so-called evidence itself.
Much deliberation happens outside the session hall of the Senate sitting as an impeachment court, with the media getting to interview senator-judges, prosecutors, defense counsel, and —during a ten-day trial recess— even the respondent himself, as well as the respective spokespersons of all parties. Easily recalled is Senator Gringo Honasan’s exasperated observation: “Apparently the trial outside the courtroom is proceeding faster than the trial in the court.” President Benigno Aquino III declared he will refrain from commenting on Corona’s trial, a few days after Malacañang spokespersons announced a self-imposed gag order not to comment on the case unless Aquino gets unfairly dragged into the issue. “Aided by media, the President and the Chief Justice are promoting the culture of irresponsible talk,” Malaya publisher Jake Macasaet said in his column. “The protagonists promote the ignorance about sub judice…” Senator Alan Peter Cayetano on Day 7 of the Corona trial explained that a gag rule is “absolute” because “[h]indi pwedeng magsalita at all tungkol sa kaso.” “Sub judice, on the other hand, has certain parameters,” he asserted. “If you're part of the media or a spokesman and you are merely recapping or showing both sides, that is not prohibited. Kung titingnan natin ang [Rule XVIII], ang nakalagay, ‘refrain’.” Sub judice rule explained Rule XVIII of the “Rules of Procedure on Impeachment Trials” requires that “at all times” during the trial “the doors of the Senate shall be open to the public” —but then instructs senators, prosecutors, the person impeached, and their respective lawyers and witnesses to “refrain from making any comments and disclosures in public pertaining to the merits of [the] pending impeachment trial.”
As for spokespersons, Senator Antonio Trillanes has pointed out that as long as they are “neither prosecutors nor defense counsels, they can speak about the impeachment case.” The sub judice rule— an oft-cited but little understood canon invoked by courts in general— is directed at litigants, their lawyers and even the mass media. Those who violate the rule are liable for indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court, and can be penalized with a fine and/or imprisonment. Interestingly, the very first time the sub judice rule was invoked here in the Philippines was in a 1930 case involving a journalist who had eavesdropped on closed-door proceedings undertaken for the removal of a judge. Since then, there have been cases too many to recount here as regards reportage or commentary constituting sub judice violations. Sub judice for judges, spokespersons, media
The Supreme Court through the Philippine Judicial Academy (PHILJA) — primarily tasked with training present and future judges—produced a “Manual Guide for the Judiciary in Dealing with the Media.” Although not yet in official use, it compiles established rules and jurisprudence— including “the pertinent response to media violations of the sub judice rule,” according to former SC justice and current PHILJA Chancellor Adolfo Azcuna. “When a case is pending in court, no one should comment on its merits in a way that may influence the court in the adjudication of the case except when done as part of the judicial process by those directly involved in it,” the Manual Guide provides. “The sub judice rule also guards against provoking public opinion on any pending case in such a way as may make it difficult for the court to render a fair judgment thereon unfettered by the threat of adverse public opinion.” The Manual Guide adds: “If the offending media personnel is a lawyer, he can also be administratively charged for professional misconduct for which he can be meted the administrative penalty of suspension.” Incidentally, the spokespersons of both camps — the House prosecution and Corona’s defense team — are all lawyers but none of them are media practitioners. The spokespersons are not covered by Senate Impeachment Rule XVIII but their conduct is regulated by the Code of Professional Responsibility — specifically, Rule 13.02 which provides that “A lawyer shall not make public statements in the media regarding a pending case tending to arouse public opinion for or against a party.”
Propaganda war waged Nonetheless, even before trial proper began some senators had taken a hard line on Rule XVIII, particularly after the House prosecution spokespersons announced to the public 45 supposed Corona properties.
Senator Tito Sotto said the press release was already violating the rules. Senator Ping Lacson said the Senate “might as well throw the impeachment rules out of the window or straight at their [House prosecutors] faces.” Senator Estrada chided the prosecution for being over-eager (“atat”) but cautioned against “mind-conditioning agenda” directed at the general public. The presiding officer Senate President Juan Ponce Enrile scolded the prosecution for presenting evidence to the media ahead of the impeachment court. Senator Santiago had called for the tight enforcement of the sub judice rule. “Habang nakabinbin ang paglilitis, huwag magsalita sa publiko sa merits of the case, sino ang tama, sino ang mali, sino ang nagsasabi ng totoo, sino ang nagsisisnungaling,” she said. “Pwedeng gawin ng media, report lang anong stage ang proceedings... But of course we can always report what happened without injecting personal opinion or commentary.” After Corona launched his own “media blitz” to denounce the prosecution’s claims against him, Senators TG Guingona and Antonio Trillanes expressed their disapproval. The House prosecution panel branded the move as “defense by publicity” while Justice Secretary Leila De Lima described Corona’s moves as “unbecoming of a chief justice.”
Opposition legislator Zambales Rep. Mitos Magsaysay blasted the Aquino administration’s alleged “double standard”, pointing out that “after hitting [Corona] and his family daily for months through the media” they now want him to shut up and deprive him of his right to defend himself in that forum. She added, “Do they want the media to report only their side?” Miriam both for and against sub judice
In July 2004, Senator Miriam Defensor Santiago filed a “Judicial Right to Know” bill — with which, she said in its explanatory note, the “elimination of the sub judice rule is earnestly sought.” She re-filed the same bill in 2007 and again in 2010. Each time, the bill gets no further than being referred to and deliberated upon at the committee-level. “The sub judice rule is a foreign legal concept,” Santiago said. “It originated in countries, such as the United States, whose justice systems have adopted the trial by jury system.” “Philippine courts frequently invoke the rule, notwithstanding the palpable absence of jurors who need to be sequestered from widespread publicity surrounding a court trial,” she said. Santiago said that in the United States, the sub judice rule 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 freedom of the press,” she said. The bill only allows a gag order to be issued against the media in cases where the report, commentary, or publication is based on information gained from other sources, and only upon prior showing that the report, commentary, or publication “will likely prevent, directly and irreparably, a fair and impartial resolution of the case.” The Judicial Right to Know bill, however, does not apply to litigants and their lawyers and witnesses who all remain covered by the sub judice rule.
Senator Koko Pimentel said he saw nothing wrong with Corona making the rounds in various broadcast stations for interviews, because both the prosecution and the defense have been talking to the media about the impeachment case anyway. Pimentel also lays claim to having “personal knowledge” of the sub-judice rule— repeatedly telling the parties talking to the media “to be ready for the consequences.” Pimentel said he himself was fined P35,ooo by the Commission on Elections for discussing in public the merits of the electoral protest case he had filed against former Senator Migz Zubiri. Senator Pia Cayetano said: “Nagalit na nga ako sa Defense before sa mga [bribery attempt] accusation nila. Ilang beses ko ring pinuna yung prosecution and yung mga spokesperson nila, na para bang meron silang ibang korte sa labas. Mali po yun dahil niloloko natin ang mga tao, we're making people think that these kinds of evidence are acceptable... So both parties, as far as I’m concerned, have gone beyond the limits of what the impeachment trial should have. Pero nandyan na yan, eh.”
In the season of abstention, it remains to be seen whether everyone can resist the temptation to talk about the merits of the impeachment case during the month-long Lenten break. - HS, GMA News 
