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
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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 judicerule, 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 publics interest that an unusual amount
of air time and print space have been devoted to it.Of late, with the publics 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:
(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 publics right to free speech and the
governments 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 accuseds 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 accuseds 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 jurys 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 jurys 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 courts 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 peoples 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 publics 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.

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Section 5. Certification against forum shopping. — The plaintiff or principal party shall certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that
he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial
agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action
or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or
claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint
or initiatory pleading has been filed.

ELEMENTS OF FORUM SHOPPING:

The test to determine the existence of forum shopping is whether the elements of litis pendentia are present, or whether a final
judgment in one case amounts to res judicata in the other. Thus, there is forum shopping when the following elements are present,
namely: (a) identity of parties, or at least such parties as represent the same interests in both actions; (b) identity of rights asserted
and reliefs prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding particulars, such that any
judgment rendered in the other action will, regardless of which party is successful, amounts to res judicata in the action under
consideration.

HOW FORUM SHOPPING IS COMMITTED

There is forum shopping “when a party repetitively avails of several judicial remedies in different courts, simultaneously or
successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising
substantially the same issues either pending in or already resolved adversely by some other court.”[40] The different ways by which
forum shopping may be committed were explained in Chua v. Metropolitan Bank & Trust Company:[41]
Forum shopping can be committed in three ways: (1) filing multiple cases based on the same cause of action and with the
same prayer, the previous case not having been resolved yet (where the ground for dismissal is litis pendentia); (2) filing multiple
cases based on the same cause of action and the same prayer, the previous case having been finally resolved (where the ground
for dismissal is res judicata); and (3) filing multiple cases based on the same cause of action, but with different prayers (splitting
causes of action, where the ground for dismissal is also either litis pendentia or res judicata).
Common in these types of forum shopping is the identity of the cause of action in the different cases filed. Cause of action is
defined as “the act or omission by which a party violates the right of another.”[42]

DIRECT AND INDIRECT CONTEMPT

A contempt is indirect when it occurs out of the presence of the court, thereby requiring the court to rely on the testimony of third
parties for proof of the offense.

It is direct when it occurs under the court's own eye and within its own hearing.