The Sub Judice rule and cases of public interest

SEN. LEILA de Lima’s trial has moved at a snail’s pace, dragging on for more than three years since her arrest in February 2017. Charged with conspiracy to commit illegal drug trading, she is detained without bail. It took 18 months after her arrest for her arraignment to take place. As the trial enters its fourth year, government lawyers have raised yet another legal obstacle against her defense.

In early November, media reported on recent hearings during which government investigators and inmates of the New Bilibid Prison took the witness stand for the prosecution. Citing defense lawyer Filibon Tarcadon as a source, media reported that several witnesses including convicted drug lord Vicente Sy, and officials of the Philippine Drug Enforcement Agency and the Anti-Money Laundering Council, among others, supposedly denied knowledge of De Lima’s alleged involvement in the illegal drug trade.

During a Kapihan sa Manila Bay forum on November 11, Prosecutor General Benedicto Malcontento accused de Lima’s lawyers of violating the sub judice rule which prohibits parties from discussing the merits of a case in public. Questioned on the matter, Justice Secretary Menardo Guevarra confirmed that he has ordered the filing of contempt charges against the lawyers.

Media reports on the sub judice charge against the defense included both defense and prosecution sources, which, given the polarity of views on the De Lima case, hardly helps. There was little attempt on the part of the media to draw from legal sources who were not involved in the case. They did not look into  the impact of the sub judice rule on the people’s right to know about cases of political relevance and great public interest.

It remained for columnists in the Op-ed sections of the dailies to provide the much needed context and analysis the issue required.

CMFR monitored reports from the three major Manila broadsheets (Manila Bulletin, Philippine Daily Inquirer and The Philippine Star); four primetime newscasts (ABS-CBN 2’s TV Patrol, CNN Philippines’ News Night, GMA-7’s 24 Oras and TV5’s Frontline Pilipinas); as well as selected news websites from November 11 to November 16, 2020.

Public interest

The public interest issue in the case of de Lima is obvious. The senator was among the first of the opposition politicians and critics to be targeted by the president. The senator had been a longtime critic of Rodrigo Duterte, even when he was still mayor. She investigated the extrajudicial killings in Davao while she was chairperson of the Commission on Human Rights. As a member of the Senate, she continued to speak out on the numerous killings which involved the police in the course of the administration’s war on drugs.

It was not long before hearings in the Senate and the House of Representatives focused on de Lima with allegations about her colluding with drug lords in the drug trade while these were serving sentences in the New Bilibid prison, leading quickly to her arrest and detention.

It is the kind of case that should have been followed as closely as possible from the beginning, detailing the failure of the judicial process with every delay and postponement suffered by the accused. It is the kind of trial that the public deserves to know about.

Unfortunately, the pandemic may have limited media attendance in the hearings in question. Court records are not made available right away. Without direct knowledge of what actually happened, reporters cited lawyers from defense and prosecution.

Citing de Lima and her lawyers to speak on the filing of sub judice/contempt of court charges filed against them weakens the arguments against the action of the DOJ. Legal views about the issue of sub judice should have come from legal or political experts who are not involved in the litigation.

The sub judice rule does not prohibit journalists from reporting what happens during a trial; but the doctrine cautions journalists from sensational treatment of developments in a trial that could influence the public and exert pressure on the courts. The principle is seen as more applicable to the jury system in other countries where media reports may contaminate the jury pool, making it difficult to form a jury of persons who can be objective in judging the case. Because in this  country the judge is the sole arbiter in a case, the sub judice rule has been seen as irrelevant and is perceived to be a measure to prevent public criticism of the judicial process.

Media accounts could have also reported on the issue of “public interest,” and why cases like these concern the public, justifying the free flow of information from the trial.

Reports could have also presented the studies on “lawfare,” the instrumentation of law to restrict or silence critics of those in power. International groups have focused on the prosecution of Senator de Lima as an example of the power of lawfare in action.  

Weaponizing the Law or Lawfare

Again, it was left to columns in the Op-ed section to provide the background the public needs to evaluate what the application of sub judice represents.

As veteran journalist Vergel O. Santos raised in his Rappler’s Thought Leaders column published on November 14, “How does the sub judice rule square with press freedom and the people’s right to know?” Santos also argued that a person who “should be so lacking in confidence as to feel susceptible to undue influence. . .has no business deciding human fates.”

In his Manila Standard column published earlier, on October 27, Lawyer Tony La Vina called De Lima’s case a “prime example of how the Duterte administration has weaponized the law,” recalling similar attacks against Rappler and other independent media.

In his opinion piece published on November 10, Inquirer columnist John Nery urged the Senate to defend its institutional dignity by showing solidarity with their colleague who is “being detained on a charge without any real evidence.” According to Nery, the majority senators’ inaction proves that the charges against her are politicized.

In her own opinion piece for the Inquirer published on October 31, columnist Solitas Collas-Monsod, expressed the same disappointment with the senators. Apart from preventing de Lima’s participation in their sessions, Monsod said they still refuse to join the call for the detained senator’s immediate release despite knowing “that there is literally no case against her.”

The fact that many media organizations have already been victimized by the weaponization of the law should have prompted journalists to report from this critical angle. But media’s undiscerning coverage of this development betrays their lack of knowledge of the sub judice and contempt of court rules as mechanisms applied primarily against the public’s right to know and the free exchange of ideas about a trial of genuine public interest.