Sub Judice

2005-12-21T01:43:00.000+08:00

Some two weeks ago, Garcillano, henceforth, “Garci”, erstwhile Commissioner of the Commission on Elections (COMELEC) attended his first hearing in the House of Representatives on the Garci Tapes- wiretapped material on alleged cheating by the incumbent President during the Presidential elections. In order to evade questions, Garci invoked the rule of sub judice, or the gag rule, claiming that he cannot be made to testify on a case he filed with the Supreme Court. Should he be allowed to invoke this rule?

I will have to admit that in my almost- going on- four years of the study of law, I have hardly, if ever, come across this principle. It seems to me something that should be apparent, even to one not trained in law. I decided to investigate. Maybe I was absent when it was taught. Hah!

Sub judice means, literally, “Under or before a judge or court; under judicial consideration; undetermined.” (Black’s Law Dictionary, 6th ed.) Okay. That’s not of much use for our purposes. Can Garci invoke it validly to avoid having to answer the questions of the House?

Going over Philippine cases decided by the Supreme Court doesn’t make things easier. There don’t seem to be cases where the Sub Judice Rule is the/ a main issue. However, a few principles can be distilled from several cases where sub judice has been invoked, either by a party-defendant, or a quasi-judicial body- or maybe even by the court itself.

Sub judice = under resolution by a court…
… simply meaning that a court has already taken jurisdiction over a case, and that it hasn’t decided on anything yet. Taking jurisdiction over a case simply means that a case has been filed, and the court with which the case has been filed can decide the case, because the law has conferred upon it jurisdiction over the offense (for example, cases for murder should be filed in the Regional Trial Courts- RTC’s, while cases for traffic violations must be filed with Metropolitan Trial Courts- MTC’s, etc, etc), the subject matter (for cases involving land, the land must be within the territorial jurisdiction of the court, etc, etc), and over the person of the defendant (ie, summons has been validly served- summons is that letter you get from the court informing you that a case has been filed against you by certain party, and that you may have to haul your ass to court; or that the crime was committed, or any of its elements, within the territorial jurisdiction of the court).

If a case is sub judice, any other court, or any other administrative agency, such as the BIR, the SEC, the Prosecutor, etc etc will not pass judgment on the same case that is brought upon it. The key question is why.

The essence of sub judice seems to me to be the following: the impeding of justice; undermining the faith and confidence of the people in the Court, and tending directly or indirectly to impede, obstruct unlawfully interfere with or influence the decision in the controversy or degrade and embarrass the administration of justice. [Allegations made by the plaintiff in Nazareno v Barnes (1985)]. These allegations constitute Indirect Contempt under Rule 71 of the Rules of Court. Thus, under section 3.b, Rule 71, this act may be punished for indirect contempt: any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice.

In short, this rule on contempt is meant to tell us that, hey, this case has already been filed with us (the courts) for our decision. Let us decide. If you interfere, there’ll be hell to pay. [Punishment is a fine that will not exceed 30kPhp, or imprisonment of up to 6 months, or both, (section 7, Rule 71, Rules of Court)].

So, going back to the original question. Can Garci invoke sub judice?

I submit that the answer is no. Garci cannot invoke the rule of sub judice.

Going by the cases which the Supreme Court decided, generally, it is not the party-litigant who invokes this rule, but it is the court or the administrative agency. Those bodies who have the power to judge cases brought before it are asked to enjoin themselves from deciding on a case which is already with the proper tribunal so that the possibility of confusing and conflicting decisions will be avoided. The party-litigant usually only invokes the rule once that body has refused to enjoin itself from giving a decision on the case.

I have not yet seen cases where the Sub Judice Rule is invoked to avoid testifying. Usually, some sort of privilege is invoked, such as relationship, marriage, attorney-client, doctor-patient, priest-confessant, etc- and recently, some form of the right to privacy. But not sub judice.

The usual course of events is for a party to say anything, or write anything regarding a case, and for another party to file a case for Contempt for blabbing about anything sub judice.

May Garci be slapped with indirect contempt if he testifies on a matter which is pending with another tribunal, in this case, the Supreme Court? That is not for him to decide. It is for the courts to cite him for contempt. Garci cannot put himself in contempt. Besides, on the grounds of impeding justice, it might be Garci himself who is impeding justice by refusing to answer the questions of legislators and claiming a sub judice.

May Garci be cited for contempt by answering the queries of the House? I submit: No. Remember, the grounds for indirect contempt are… impeding, obstructing, degrading justice. The legislative hearings on wiretapping hardly belong to any one of those categories. We presume that the acts of the legislature are valid, constitutional, and in good faith unless proven to be otherwise.

Executive Immunity

2005-12-12T07:19:00.000+08:00

Take a gander at the December 8, 2005 column of Conrado De Quiros. He says, and I quote,

"… we may prosecute senators and congressmen for calling up a Comelec official at an indeterminable time and place to help them with their electoral bid but not so a presumptive president who did so at a determinable time and place with the express intention to cheat. At the very least doesn’t presidential immunity pertain only to presidents? The question precisely is whether Arroyo is so or not. Her calling up Garci says she’s not. At the very most, who says presidential immunity exempts presidents from murder? Cheating at the polls murders a nation, which is worse than murdering an individual."

Very wise words from a person I can only aspire to be when I grow up (mentally, I’m only 18). Which leads me to want to go over the Doctrine of Presidential Immunity, or, as others call it, the Doctrine of Executive Immunity. I’ll call it the Doctrine of ICanDoAnythingIWantBecauseYouCan’tSueMe.

Still in the grip of sleep- it was still 0400h after all- I scanned my copy of the 1987 Constitution to look for the Presidential Immunity Provision. I didn’t see it. I didn’t, because it’s not there. Stupidmeforgot.

The 1973 Constitution had a specific provision guaranteeing this Immunity (Art VII, Sec 15); the present Constitution - before it’ll get bastardized by Congress- doesn’t. Father Bernas, Constitutionalist, and a member of the Commission which drafted our present Constitution explains that they didn’t include it anymore because it was already something that was understood in our jurisprudence. Right. Let me translate. I think what Father Bernas really wanted to say was, “We forgot.” But being the legal expert that he is, he is able to explain things by using legalese. (Translation: mumbojumbo.)

Which was why I wanted to become a lawyer in the first place. So that I can explain things in legalese. Take for an example… a situation where a policeman stops me for beating a red light. Being the aspiring lawyer that I am, I will explain my predicament by saying that, “It is understood in our jurisprudence that police power is not absolute and that I can order a double cheeseburger without cheese, if I have a mind to.” (Of course, my legalese will not be polished and… clear because I haven’t taken the Bar yet. Hopefully, it will improve after I do.) Which words translate to, for the benefit of you non-lawyer/lawstudents out there: “What the F#@*?!?” See how much fun it is to be a lawyer?

Philippine law, by the way, is not just what is provided for in the Constitution. Law is also... those which come from legislation (Congress, the Sanggunians, the Supreme Court_ but they'll deny it), and those which lawyers call jurisprudence. Juris, meaning law, and prudence, meaning showing care and foresight.

It’s also what makes up the body of decisions emanating from the Supreme Court. (We’ll discuss that topic later.)

The Immunity was ensconced in law to assure the exercise of Presidential duties and functions free from any hindrance and distraction (Soliven v Makasiar, 1988).

Of course, because I’m quoting from jurisprudence, what the President must really be saying, what that line really means, translated from legalese is, “Eat my shorts.” Or in this case, “panties”. Though why I equated shorts with panties is totally beyond me, I will blame it all on my being still “in the grip of sleep”. (I have definitely ruined whatever appetite I have for breakfast.)

BACK OFF!

Sub Judice

Executive Immunity