Archive for December, 2010


CASE 0013: PEOPLE OF THE PHILIPPINES VS. SANDIGANBAYAN (FOURTH DIVISION) AND IMELDA R. MARCOS (G.R. NO. 155832, 07 DECEMBER 2010) SUBJECT: DELEGATION OF QUASI JUDICIAL POWER; ESTOPPEL.

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December 17, 2010

PEOPLE OF THE PHILIPPINES VS. SANDIGANBAYAN (FOURTH DIVISION) AND IMELDA R. MARCOS (G.R. NO. 155832, 07 DECEMBER 2010) SUBJECT: DELEGATION OF QUASI JUDICIAL POWER; ESTOPPEL.

 

DOCTRINES:

JUDICIAL OR QUASI-JUDICIAL POWERS MAY NOT BE DELEGATED.

 

In PCGG v. Judge Peña,[1][17] the Court held that the powers, functions and duties of the PCGG amount to the exercise of quasi-judicial functions, and the exercise of such functions cannot be delegated by the Commission to its representatives or subordinates or task forces because of the well established principle that judicial or quasi-judicial powers may not be delegated.

 

A VOID ORDER PRODUCES NO EFFECT AND CANNOT BE VALIDATED UNDER THE DOCTRINE OF ESTOPPEL.

 

Petitioner Republic argues that Mrs. Marcos should be deemed estopped from questioning the sequestration of her Olot Resthouse by her actions in regard to the same.  But a void order produces no effect and cannot be validated under the doctrine of estoppel.  For the same reason, the Court cannot accept petitioner’s view that Mrs. Marcos should have first sought the lifting of the sequestration order through a motion to quash filed with the PCGG.  Being void, the Sandiganbayan has the power to strike it down on sight. 

 

XXXXXXXXXXXXXXXXXXXXXXXXXXX

 

 

DECISION

 

ABAD, J.:

This case involves the validity of a sequestration order signed, not by the Presidential Commission on Good Government (PCGG) Commissioners, but by designated agents and issued prior to the effectivity of the PCGG Rules and Regulations.

The Facts and the Case

On February 28, 1986, immediately after assuming power, President Corazon C. Aquino issued Executive Order 1, creating the PCGG.  She empowered the PCGG to recover all ill-gotten wealth allegedly amassed by former President Ferdinand E. Marcos, his family, and close associates during his 20-year regime.

On March 13, 1986 PCGG Commissioner Raul Daza gave lawyers Jose Tan Ramirez (Ramirez) and Ben Abella (Abella), PCGG Region VIII Task Force Head and Co-Deputy, respectively, written authority to sequester any property, documents, money, and other assets in Leyte, belonging to former First Lady Imelda R. Marcos (Mrs. Marcos), Benjamin Romualdez, Alfredo Romualdez, and their agents.

On March 18, 1986, acting on the authority given them, Attys. Ramirez and Abella issued a sequestration order against the Marcoses’ Olot, Tolosa, Leyte property (Olot Resthouse), a 17-room affair sitting on 42 hectares of beachfront land, with a golf course, swimming pool, cottages, a pelota court, and a pavilion.

On July 16, 1987 petitioner Republic of the Philippines, represented by the PCGG, filed a complaint for recovery of ill-gotten wealth against President Marcos and his wife, respondent Mrs. Marcos, before the Sandiganbayan, docketed as Civil Case 0002, which complaint was amended a number of times.[2][1]  Mrs. Marcos then filed her answer to the third amended complaint.[3][2]

On August 10, 2001 Mrs. Marcos filed a motion to quash the March 18, 1986 sequestration order against the Olot Resthouse,[4][3] claiming that such order, issued only by Attys. Ramirez and Abella, was void for failing to observe Sec. 3 of the PCGG Rules and Regulations.[5][4]  The rules required the signatures of at least two PCGG Commissioners.  The Republic opposed[6][5] the motion, claiming that Mrs. Marcos was estopped from questioning the sequestration order since by her acts, like seeking PCGG permission to repair the resthouse and entertain guests there, she had conceded the validity of the sequestration; that she failed to exhaust administrative remedies by first seeking its lifting as provided in the PCGG rules; that the rule requiring the signatures of at least two PCGG Commissioners did not yet exist when the Olot Resthouse was sequestered; and that she intended her motion to quash to delay the proceedings against her.

Mrs. Marcos filed a Supplement[7][6] to her earlier motion, claiming no prima facie evidence that the Olot Resthouse constituted ill-gotten wealth.  She pointed out that the property is the ancestral home of her family.

On February 28, 2002 the Sandiganbayan issued the assailed Resolution,[8][7] granting the motion to quash and ordering the full restoration of the Olot Resthouse to Mrs. Marcos.  The Sandiganbayan ruled that the sequestration order was void because it was signed, not by PCGG Commissioners, but by mere PCGG agents.  Although the sequestration order preceded the passage of the PCGG Rules, it remained that the law empowered only the PCGG to issue sequestration orders.[9][8]  Besides, under the law,[10][9] the PCGG is the sole entity charged with the responsibility of recovering ill-gotten wealth.  Its representatives or agents do not have such power.  The Republic moved for reconsideration of the resolution but the Sandiganbayan denied it on August 28, 2002.[11][10]  Thus, the Republic filed the present petition for certiorari.

The Issue Presented

 

The sole issue presented is whether or not the March 18, 1986 sequestration order against the Olot Resthouse, issued by PCGG agents before the enactment of the PCGG rules, was validly issued.

 

The Court’s Ruling

Under Section 26, Article XVIII of the Constitution, an order of sequestration may only issue upon a showing “of a prima facie case” that the properties are ill-gotten wealth under Executive Orders 1 and 2.[12][11]  When a court nullifies an order of sequestration for having been issued without a prima facie case, the Court does not substitute its judgment for that of the PCGG but simply applies the law.[13][12]

In Bataan Shipyard & Engineering Co, Inc. v. PCGG,[14][13] the Court held that a prima facie factual foundation that the properties sequestered are “ill-gotten wealth” is required.  The power to determine the existence of a prima facie case has been vested in the PCGG as an incident to its investigatory powers.  The two-commissioner rule is obviously intended to assure a collegial determination of such fact.[15][14] 

Here, it is clear that the PCGG did not make a prior determination of the existence of a prima facie case that would warrant the sequestration of the Olot Resthouse. The Republic presented no evidence before the Sandiganbayan that shows differently.  Nor did the Republic demonstrate that the two PCGG representatives were given the quasi-judicial authority to receive and consider evidence that would warrant such a prima facie finding.

Parenthetically, the Republic’s supposed evidence does not show how the Marcoses acquired the sequestered property, what makes it “ill-gotten wealth,” and how former President Marcos intervened in its acquisition. Taking the foregoing view, the resolution of the issue surrounding the character of the property sequestered – whether or not it could prima facie be considered ill-gotten – should be necessary.

          The issue in this case is not new.  The facts are substantially identical to those in the case of Republic v. Sandiganbayan (Dio Island Resort, Inc.).[16][15]  There, the same Atty. Ramirez issued a sequestration order on April 14, 1986 against Dio Island Resort, Inc. and all its assets and properties which were thought to be part of the Marcoses’ ill-gotten wealth.  Alerted by a challenge to his action, the PCGG passed a resolution “to confirm, ratify and adopt as its own all the Writs of Sequestration” that Attys. Ramirez and Abella issued “to remove any doubt as to the validity and enforceability” of their writs.  Still, the Court struck them down as void:

x x x  It is indubitable that under no circumstances can a sequestration or freeze order be validly issued by one not a Commissioner of the PCGG.

 

The invalidity of the sequestration order was made more apparent by the fact that Atty. Ramirez did not even have any specific authority to act on behalf of the Commission at the time he issued the said sequestration order. x x x

 

x x x x

 

Even assuming arguendo that Atty. Ramirez had been given prior authority by the PCGG to place Dio Island Resort under sequestration, nevertheless, the sequestration order he issued is still void since PCGG may not delegate its authority to sequester to its representatives and subordinates, and any such delegation is invalid and ineffective.

 

Under Executive Order Nos. 1 and 2, PCGG is the sole entity primarily charged with the responsibility of recovering ill-gotten wealth.  x x x The power to sequester, therefore, carries with it the corollary duty to make a preliminary determination of whether there is a reasonable basis for sequestering a property alleged to be ill-gotten.  After a careful evaluation of the evidence adduced, the PCGG clearly has to use its own judgment in determining the existence of a prima facie case. 

 

x x x x

 

The absence of a prior determination by the PCGG of a prima facie basis for the sequestration order is, unavoidably, a fatal defect which rendered the sequestration of respondent corporation and its properties void ab initio.  Being void ab initio, it is deemed non-existent, as though it had never been issued, x x x.[17][16]

 

          The Court is maintaining its above ruling in this case. 

Although the two PCGG lawyers issued the sequestration order in this case on March 18, 1986, before the passage of Sec. 3 of the PCGG Rules, such consideration is immaterial following our above ruling. 

          In PCGG v. Judge Peña,[18][17] the Court held that the powers, functions and duties of the PCGG amount to the exercise of quasi-judicial functions, and the exercise of such functions cannot be delegated by the Commission to its representatives or subordinates or task forces because of the well established principle that judicial or quasi-judicial powers may not be delegated.

It is the Republic’s theory of course that Commissioner Daza’s letter, directing Attys. Ramirez and Abella to search and sequester all properties, documents, money and other assets of respondents, should be considered as the writ of sequestration while the order issued by Attys. Ramirez and Abella  should be treated merely as an implementing order.

But the letter did not have the tenor of a sequestration order covering specific properties that the lawyers were ordered to seize and hold for the PCGG.   Actually, that letter is of the same kind issued to Attys. Ramirez and Abella in Dio Island Resort.  Consequently, there is no reason to depart from the Court’s ruling in the latter case where it said:

The invalidity of the sequestration order was made more apparent by the fact that Atty. Ramirez did not even have any specific authority to act on behalf of the Commission at the time he issued the said sequestration order.  Thus, the respondent Court noted:

 

“Contrary to plaintiff’s representation, nothing exists to support its contention that the Task Force had been given prior authority to place DIO under PCGG control.  On the contrary, as the text of the above letters clearly show, Attys. Jose Tan Ramirez and Ben Abella, had acted on broad and non-specific powers: ‘By authority of the commission and the powers vested in it. x x x.’”[19][18] 

 

Petitioner Republic argues that Mrs. Marcos should be deemed estopped from questioning the sequestration of her Olot Resthouse by her actions in regard to the same.  But a void order produces no effect and cannot be validated under the doctrine of estoppel.  For the same reason, the Court cannot accept petitioner’s view that Mrs. Marcos should have first sought the lifting of the sequestration order through a motion to quash filed with the PCGG.  Being void, the Sandiganbayan has the power to strike it down on sight. 

Besides, the lifting of the sequestration order will not necessarily be fatal to the main case since it does not follow from such lifting that the sequestered properties are not ill-gotten wealth. Such lifting simply means that the government may not act as conservator or may not exercise administrative or housekeeping powers over the property.[20][19]  Indeed, the Republic can be protected by a notice of lis pendens.

WHEREFORE, the Court DISMISSES the petition for lack of merit and AFFIRMS the challenged resolutions of the Fourth Division of the Sandiganbayan dated February 28, 2002 and August 28, 2002 in Civil Case 0002, which granted respondent Imelda R. Marcos’ Motion to Quash the March 18, 1986 Sequestration Order covering the Olot Resthouse.

Further, the Court DIRECTS the Register of Deeds of Leyte to immediately annotate a notice of lis pendens on the certificate of title of the Olot Resthouse with respect to the Republic of the Philippines’ claim over the same in Civil Case 0002 of the Sandiganbayan. 

No pronouncement as to costs.

SO ORDERED.

ROBERTO A. ABAD 

                                                              Associate Justice


WE CONCUR:

 

 

 

RENATO C. CORONA

Chief Justice

 

 

 

      ANTONIO T. CARPIO              CONCHITA CARPIO MORALES    

  Associate Justice                                               Associate Justice

 

 

             (On Official Leave)                               

PRESBITERO J. VELASCO, JR.     ANTONIO EDUARDO B. NACHURA

               Associate Justice                                     Associate Justice

 

 

 

TERESITA J. LEONARDO-DE CASTRO       ARTURO D. BRION

                     Associate Justice                                 Associate Justice

 

 

                       (No part)

       DIOSDADO M. PERALTA                     LUCAS P. BERSAMIN

                 Associate Justice                                      Associate Justice        

    

 MARIANO C. DEL CASTILLO             MARTIN S. VILLARAMA, JR.

              Associate Justice                                     Associate Justice

  JOSE PORTUGAL PEREZ                           JOSE CATRAL MENDOZA

            Associate Justice                                       Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA

          Chief Justice

 

 

 

[1][17]  243 Phil. 93 (1988).

[2][1]  Rollo, Vol. I, pp. 86-122.

[3][2]  Id. at 157-195.

[4][3]  Id. at 196-202.

[5][4]  Sec. 3. Who may issue. – A writ of sequestration or a freeze or hold order may be issued by the Commission upon the authority of at least two Commissioners, based on the affirmation or complaint of an interested party or motu proprio when the Commission has reasonable grounds to believe that the issuance thereof is warranted.

[6][5]  Rollo, Vol. I, pp. 205-226.

[7][6]  Id. at 230-236.

[8][7] Id. at 58-84; penned by Associate Justice Narciso S. Nario, and concurred in by Associate Justices Rodolfo G. Palattao and Nicodemo T. Ferrer.

[9][8]  Republic of the Philippines v. Sandiganbayan (Dio Island Resort, Inc.), 328 Phil. 210, 219 (1996).

[10][9]  Executive Orders 1 and 2.

[11][10]  Rollo, Vol. I, p. 85.

[12][11]         EXECUTIVE ORDER 1 – CREATING THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT.   WHEREAS, vast resources of the government have been amassed by former President Ferdinand E. Marcos, his immediate family, relatives, and close associates both here and abroad; 

x x x x

                Sec. 2.  The Commission shall be charged with the task of assisting the President in regard to the following matters:

                (a)           The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through nominees, by taking undue advantage of their public office and/or using their powers, authority, influence, connections or relationship.

x x x x

                EXECUTIVE ORDER 2. – REGARDING THE FUNDS, MONEYS, ASSETS, AND PROPERTIES ILLEGALLY ACQUIRED OR MISAPPROPRIATED BY FORMER PRESIDENT FERDINAND E. MARCOS, MRS. IMELDA ROMUALDEZ MARCOS, THEIR CLOSE RELATIVES, SUBORDINATES, BUSINESS ASSOCIATES, DUMMIES, AGENTS, OR NOMINEES.   

x x x x

                NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, hereby:

                (1)           Freeze all assets and properties in the Philippines in which former President Marcos and/or his wife, Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business associates, dummies, agents, or nominees have any interest or participation; x x x

[13][12]  Presidential Commission on Good Government v. Tan, G.R. Nos. 173553-56, December 7, 2007, 539 SCRA 464, 479-480.

[14][13]  234 Phil. 180, 214 (1987).

[15][14]  Republic of the Philippines v. Sandiganbayan, 355 Phil. 181, 195 (1998).

[16][15]  Supra note 8.

[17][16]  Id. at 218-219, 222.

[18][17]  243 Phil. 93 (1988).

[19][18]  Republic of the Philippines v. Sandiganbayan, supra note 8, at 218.

[20][19]  Presidential Commission on Good Government v. Sandiganbayan, 418 Phil. 8, 20 (2001).

Comment

BITS AND PIECES OF INFO: PROFITS OF OIL COMPANIES; STATE OF THE COCONUT INDUSTRY, ETC.

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TRIVIA

 

TOURIST ARRIVALS IN THE PHILIPPINES

NUMBER OF TOURIST ARRIVALS IN 2009 IN PH:             2.7M.

 

WE ARE BEHIND HONGKONG, MALAYSIA,

THAILAND AND SINGAPORE

 

SOURCE: MANILA STANDARD TODAY, 17 DEC 2007.

PROFITS OF OIL COMPANIES

 

NET INCOME OF PETRON CORP FROM JAN

TO SEPT 2010:                                                                      P5.35B.

THIS IS 59% ABOVE THE P3.37B NET

INCOME FROM JAN TO SEPT 2009.

 

NET PROFIT OF PETRON CORP IN 3RD

QUARTER OF 2010:                                                              P1.81B.

THIS IS 16% ABOVE THE P1.56B NET PROFIT

IN 3RD QUARTER OF 2009.

 

SOURCE: MANILA STANDARD TODAY, 17 DEC 2007.

 

SIGNIFICANCE OF THE COCONUT INDUSTRY IN PH

 

COCONUT IS OUR BIGGEST CROP, NOT RICE.

 

BASED ON 2002 CENSUS OF AGRICULTURE

THERE WERE 1.4M COCONUT FARMS IN THE

COUNTRY. THIS IS 29% OF ALL FARMS.

WHILE THERE ARE ONLY 1.35M RICE FARMS

WHICH IS 28% OF TOTAL FARMS. 

 

TOTAL LAND AREA PLANTED TO COCONUT WAS

3.3M HAS. OR 34%. WHILE RICE ONLY ACCOUNTED

FOR 2.5M HAS. OR 25%.

 

THERE ARE 3.4M COCONUT FARM WORKERS AND

FARMERS IN 70 OUT OF 81 FARMERS.

 

COCONUT IS OUR TOP FARM EXPORT

BRINGING IN UP TO US$900M PER YEAR.

 

80% OF COCONUT’S OUTPUT ARE EXPORTED

TO 114 COUNTRIES ACCORDING TO PCA.

 

BUT INCOME FOR FARMERS WAS QUITE LOW.

AVERAGE INCOME SOME YEARS BACK

PER HECTARE WAS ONLY P10,660 PER

HECTARE BUT AVERAGE FOR ALL CROPS

WAS P31,580.

 

COCONUT FARMERS ARE AMONG THE POOREST.

90% OF COCONUT FARMERS AND WORKERS ARE

BELOW THE POVERTY LINE. WHILE INCIDENCE

OF POVERTY AMONG RICE FARMERS WAS ONLY

AROUND 35%.

 

91% OF COCONUT OUTPUT IS COPRA FOR

COCONUT OIL. BUT THERE ARE MUCH MORE

POTENTIAL PRODUCTS: ACTIVATED CARBON,

VARIOUS COCO-BASED CHEMICALS, COCO DIESEL,

VIRGIN COCO OIL, COCONUT SUGAR, GEOTEXTILES,

NUTRICEUTICALS, COIR FIBRE, COCO LUMBER

AND COCO HANDICRAFTS.

 

BUT BULK OF GOVT MONEY IS INTO RICE:

AROUND 70%.  BUT RICE CONTRIBUTES

ONLY 16% OF THE VALUE OF TOTAL AGRICULTURAL

OUTPUT.

 

SOURCE: NO FREE LUNCH, CIELITO F. HABITO, PDI, 14 DECEMBER 2010.

 

 

 

 

 

XXX

Comment

CASE 0012-E: SUPPLEMENTAL OPINION OF JUSTICE BRION: G.R. No. 176389 – ANTONIO LEJANO, petitioner, -versus- PEOPLE OF THE PHILIPPINES, respondent.;G.R. No. 176864 – PEOPLE OF THE PHILIPPINES, appellee, -versus- HUBERT JEFFREY P. WEBB, et al., appellants.

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December 16, 2010

SUPPLEMENTAL OPINION OF JUSTICE BRION: G.R. No. 176389 – ANTONIO LEJANO, petitioner, -versus- PEOPLE OF THE PHILIPPINES, respondent.;G.R. No. 176864 – PEOPLE OF THE PHILIPPINES, appellee, -versus- HUBERT JEFFREY P. WEBB, et al., appellants.

 

                                                                   Promulgated: 

                                                                   December 14, 2010

x—————————————————————————————–x

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 the sub 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 the mode of commission of the crime and the personalities involved.  From the time the charges were filed, the case has captured the public’s interest that an unusual amount of air time and print space have been devoted to it.  Of late, with the public’s 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.

In essence, the sub 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 the media.  Although the Rules of Court does not contain a specific provision imposing the sub judice rule, 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 the sub 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 public’s right to free speech and the government’s duty to administer fair and impartial justice.  While the sub judice rule may be considered as a curtailment of the right to free speech, it is “necessary to ensure the 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 that the sub judice rule is not imposed on all forms of speech.  In so far as criminal proceedings are concerned, two classes of publicized speech made during the pendency of the proceedings can be considered as contemptuous: first, comments on the merits of the case, and second, 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 unrestricted publicized speech.

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 judice rule is highlighted in criminal cases, as the possibility of undue influence prejudices the accused’s right to a fair trial.  “The principal purpose of the sub judice rule is to preserve the impartiality of the judicial system by protecting it from undue influence.”[5]  Public opinion has no place in a criminal trial. 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 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 accused’s right to due process which “guarantees [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 may in 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 an outcome promoted by the media, it will appear as if the jurors were swayed by the media. By the same token, if the jury’s decision does not accord with media opinion, it may appear as if they were deliberately reacting against it. Either way, it may appear that the jury’s decision was not impartial and based on the evidence presented 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] “The sub 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 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 court’s disposition of the case; “the actual impact of prejudicial publicity is not relevant to liability for sub 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 to it.[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 the speech 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 the sub 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 people’s freedom to criticize the government includes the right to criticize the courts, their proceedings and decisions.  This is the principle of open 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 public’s 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 decency and propriety.”[21]  And to enhance the open court principle and allow the people to make fair and reasoned criticism of the courts, the sub 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 the sub judice rule to the present case, the reason is obvious 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 that transpired.

Lest we be misunderstood, our application of the sub 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 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.  

                                                          ARTURO D. BRION

                                                               Associate Justice

[1]  See Justice Black’s 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 of speech 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 putting these freedoms wholly “beyond the reach” of federal power to abridge.  No other provision of the Constitution purports to dilute the scope of these unequivocal commands of the First Amendment.  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 by Publication, 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 the sub 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 for committing 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.

[13] Supra note 7, at 260.

[14] Separate Opinion of the author in Louis “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 public opinion that news of government scandals generate, it does not require a leap of faith to conclude that an accused brought to court against overwhelming public opinion starts his case with less than equal 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. Perfecto’s dissenting opinion in In 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, citing Roxas 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, citing In re Almacen, infra note 22.

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

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