SUPREME COURT DECISIONS

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CONCURRING OPINION

KAPUNAN, J.:

Of course freedom of speech and of the press are essential to the enlightenment of a free people and in restraining those who wield power. Particularly should this freedom be employed in comment upon the work of courts who are without many influences ordinarily making for humor and humility, twin antidotes to the corrosion of power. But the Bill of Rights is not self-destructive. Freedom of expression can hardly carry implications that nullify the guarantees of impartial trials. And since the courts are the ultimate resorts for vindicating the Bill of Rights, a state may surely authorize a appropriate historic means to assure that the process for such vindication be not wrenched from its rational tracks into the more primitive melee of passion and pressure. The need is great that courts be criticized but just as great that they be allowed to do their duty.

-Bridges v. California

314 US 252, 284

In their separate petitions, the Kapisanan ng mga Brodkaster ng Pilipinas and the Secretary of Justice Hernando B. Perez would want this Court to allow live radio and television coverage of the court hearings on the plunder and other criminal cases filed against Former President Joseph Ejercito Estrada, et al. pending before the Sandiganbayan.

In support of their request, they invoke the constitutional guarantees on the right of the people to be informed on matters of public concern as well as the freedoms of speech and the press including the right to discuss publicly and truthfully any matter of public concern without censorship:

x x x

3. The foregoing criminal cases involve the previous acts of the former highest official of the land, members of his family, his cohorts and, therefore, it cannot be over emphasized that the prosecution thereof, definitely involves a matter of public concern and interest, or a matter over which the entire citizenry has the right to know, be informed and made aware of.

4. There is no gainsaying that the constitutional right of the people to be informed on matters of public concern, as in the instant cases, can best be recognized, served and satisfied by allowing the live radio and television coverage of the concomitant court proceedings.

x x x ¹cräläwvirtualibräry

Mr .Estrada, in his Comment on the petitions, expressed his opposition to the proposed live television and radio coverage of his trial arguing that such coverage would be prejudicial to his right to fair trial because radio and television as media can be easily manipulated for propaganda purposes; such coverage will play to the gallery; it may lead to the possibility that the trial court may be ultimately influenced by what sits well with the public; its rulings and decisions may take into account what will please the crowd; and it would "allow live play-by-play annotation of the hearings by people on radio and television with varying degrees of expertise and biases, in seeming mockery of the sub judice rule"; ² and that "it was the live TV coverage which ignited EDSA II. ³cräläwvirtualibräry

For its part, the Integrated Bar of the Philippines (IBP) likewise has taken the stand against the live broadcast coverage of criminal proceedings for the following reasons:

1. Live TV and radio coverage will negate the rule on exclusion of witnesses during the hearings intended to assure a fair trial.

2. At stake in the criminal trial is not only the life and liberty of the accused but the very credibility of the Philippine criminal justice system. Live TV and radio coverage of the trial will allow the 'hooting throng' to arrogate unto themselves the task of judging the guilt or innocence of the accused, such that the verdict of the court will be acceptable only if popular.

3. Live TV and radio coverage of the trial will not subserve the ends of justice but will only pander to the desire for publicity of few grandstanding lawyers. Instead of promoting the ends of justice, live TV and radio coverage will become the very instrument to distract litigants and judges, expose the judges to undue public scrutiny and pressure every step of the way, and undermine the integrity of the Sandiganbayan.

x x x ⁴cräläwvirtualibräry

I do not find merit in the petitions.

In a clash between the rights to free speech, free press and of access to information on matters of public concern, and the right to a fair trial, the right of the accused should be the utmost concern of the Court.

The instant petitions, if granted, would throw overboard a well-established policy that considers such live radio and television coverage not only as prejudicial to the defendants right to due process, but also as inimical to the fair and orderly administration of justice. In its Resolution, dated October 22, 1991, this Court laid down the guidelines for broadcast media coverage of courtroom trials, to wit:

x x x Considering the prejudice it poses to the defendants right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper.

The restrictions set forth in our Resolution of October 22, 1991, have remained sound and valid. I cannot find a rational basis to change the rule at this time, simply to suit the prosecution in the cases against Ex-President Estrada.

While the rights to press freedom and to information on matters of public concern are constitutionally protected ⁵ in acknowledgement of medias role as a potent catalyst in increasing public awareness and interest in governmental affairs as well as other significant events and occurrences, including court proceedings, ⁶ and of the importance of the free flow of ideas and information in a democracy, these are not absolute and must be taken hand-in-hand with other public interests. In weighing the freedoms of speech and the press and the right to public information, on one hand, and the right of the accused to a fair trial, on the other, the balance is never weighed against the accused. ⁷cräläwvirtualibräry

It must be made clear that there is no curtailment nor substantial diminution of the rights to free press and to information on matters of public concern brought about by the prohibition on live radio and television coverage of court proceedings. These rights remain amply protected even with the existence of such prohibition. In the criminal cases against Mr. Estrada before the Sandiganbayan, the press can still report on the proceedings being conducted therein. Media outfits can send their representatives to the trials and make their reports and comments thereon to their viewers or listeners. What is not allowed is for them to bring inside the courtroom their broadcasting equipment that would tend to hamper the orderly administration of justice. As aptly observed by Chief Justice Warren in his concurring opinion in Estes: ⁸cräläwvirtualibräry

Television is one of the great inventions of all time and can perform a large and useful role in society. But the television camera, like other technological innovations, is not entitled to pervade the lives of everyone in disregard of constitutionally protected rights. The television industry, like other institutions, has a proper area of activities and limitations beyond which it cannot go with its cameras. That area does not extend into an [American] courtroom. On entering that hallowed sanctuary, where the lives, liberty and property of people are in jeopardy, television representatives have only the rights of the general public, namely, to be present, to observe the proceedings, and thereafter, if they choose, to report them.⁹cräläwvirtualibräry

It bears emphasizing that the right to a public trial belongs first and foremost to the accused. Said right requires that proceedings be open to the public to ensure that the accused is fairly dealt with and not unjustly condemned. ¹⁰ The openness of a trial safeguards against attempts to employ the courts as instruments of persecution since it induces all the participants therein, e.g . judge, lawyers, witnesses, to perform their duties conscientiously, and provides the public with an opportunity to observe the events therein. ¹¹ However, a public trial is not to be equated with a "publicized trial," one characterized by pervasive adverse publicity that violates the accused's constitutional right to due process.

That the live broadcast coverage of the criminal proceedings may undermine the right of the accused to a fair trial cannot be ignored. Undoubtedly, television is one of the most powerful sources of information and news in our society. However, it is also one of the most manipulative. ¹² It can, intentionally or inadvertently, destroy an accused and his case in the eyes of the public. ¹³ It cannot deny the accused of his right to due process, including the right to a fair trial. ¹⁴cräläwvirtualibräry

Television does not simply mirror or reflect events as they unfold. The images transmitted onscreen are the end products of a series of technical modifications employed by television editors and cameramen. Editors may eliminate or cut certain scenes of a trial in order to appeal to a mass audience. Cameramen may also manipulate what the public sees through the use of space, camera angles, lighting, juxtaposition, and editing techniques, thereby limiting the publics perception of the events being covered. Sadly, the public in general lack an understanding of how these tools work and more often than not fail to realize the distorting effects of these devices executed by an experienced cameramen. ¹⁵cräläwvirtualibräry

The negative effects that live television coverage of criminal proceedings may have thereon may even exceed those resulting from the biases created in the mind of the viewers from watching the images appearing onscreen. It is not unlikely that the television stations may decide that the trial itself does not contain sufficient drama to sustain an audience and thus provide expert commentary on the proceedings by hiring persons with legal backgrounds to anticipate possible trial strategy, in the same manner as a basketball expert anticipates plays for his audience. ¹⁶ Arguably, this may be beneficial in the sense that the viewing public is offered guidance in understanding the events that transpire at a court proceeding. However, it cannot be denied that such live commentaries may intensify the biases shaped by the images of the trial on television, or worse, create wrong impressions in the viewers' minds. The same might also subvert our sub judice rule that media should refrain from publishing or airing comments regarding a pending case.

The transmission of edited images on television or the accompanying commentaries are not the only possible sources of bias which may unduly influence the outcome of a trial. The mere presence of the television camera inside the courtroom also inevitably affects the proceedings being covered for television can work profound changes in the behavior of the people it focuses on. ¹⁷cräläwvirtualibräry

A study explained the effects of the presence television cameras inside the courtroom on the witnesses in this wise:

The marketing consciousness of witnesses increases with the awareness of being on national or global television. There is a risk that a witness will alter his story in order to appeal to the television audience instead of fulfilling his evidentiary role. His testimony becomes more important for its entertainment value which may cause embellishment of certain aspects of his testimony. Many people dream of becoming a celebrity, and for many witnesses, this may be their only opportunity to shine in the limelight. This consciousness poses a danger of improper and inaccurate testimony. x x x¹⁸cräläwvirtualibräry

Even the behavior of lawyers may be influenced by the fact that their case is being covered by live television:

In addition, cameras pose a risk that lawyers will modify their roles. In a televised trial, the public becomes an extrajudicial audience that they must persuade. Lawyers may become preoccupied with the cameras which interferes with their devoting full attention to the fact- finder at trial. As a result, some lawyers direct at least part of their case to the television viewers instead of fully representing their clients to the presiding judge and the jury. Lawyers are motivated to present themselves well in they eyes of the public. In a highly televised trial, the marketing consciousness of lawyers may be affected. There is a danger that the media's production of the trial may transform into an excellent opportunity for the lawyers to gain free personal advertisement.¹⁹cräläwvirtualibräry

The presence of television cameras inside the courtroom also places additional responsibilities on the trial judge. In addition to his duties of listening to the testimonies of the witnesses, receiving documentary and object evidence, ruling on motions and objections and ensuring that the accused receives a fair trial, he must also supervise the television crew present in his courtroom ²⁰ to make sure that they do not disrupt the proceedings. Even the behavior of the judges themselves may be unduly influenced by such media presence, for although they are supposed to be more impervious to external pressures with respect to the cases pending before them, they still experience the same psychological reactions as laymen.

Judges and justices are also human beings. They cannot remain oblivious to the pressures that media can bear on them both directly and in the shaping of public opinion. Thus, any occasion that would give the impression that in rendering judgment, the judge was swayed by public opinion or any other factor extraneous to the evidence at hand should be avoided. As Chief Justice Taft in Tumey vs. Ohio ²¹ eloquently put it:

x x x the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man . . . to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.²²cräläwvirtualibräry

Further, the negative impact of live broadcast media coverage of the trial on the accused is not inconsequential:

x x x Its presence is a form of mental -if not physical - harassment, resembling a police line-up or the third degree. The inevitable close-ups of his gestures and expressions during the ordeal of his trial might well transgress his personal sensibilities, his dignity, and his ability to concentrate on the proceedings before him - sometimes the difference between life and death -dispassionately, freely and without the distraction of wide public surveillance. A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a city or nationwide arena. x x x²³cräläwvirtualibräry

There are those who believe that live media coverage would enhance the fair and orderly administration of justice. However, this belief ignores the fact that the behavior of the participants of the proceedings, e.g., lawyers and witnesses, may be unnaturally affected by their knowledge that their actions and testimonies are recorded on live television and radio. This was particularly observed by a law professor in the O.J. Simpson criminal trial in the United States:

Within the Simpson criminal trial, most of the media's participant-observer glitches were attributable to the real-time electronic media broadcast of the proceedings on a gavel-to-gavel basis, especially by television camera. As Ellis Cose opined, "Many journalists and others idealistically believed that televised trials would enhance the quality of justice and increase general knowledge about the courts by providing public oversight not previously available. Unfortunately, this was not the case. Television did not deter lying witnesses; instead it rendered many truthful ones nervous and inarticulate.

Television provided the temptation, and the opportunity, for media-savvy lawyers and a media-conscious judge to sell their respective cases not merely to the jury , but literally to the world. The camera in this case and in this courtroom proved to be a world class platform for rhetorician, a snare for the unwary, a seducer and mirror to the vain, an indiscriminate and often harsh recorder of humor, wit, guile, trickery, and lies, and the transmitter to the world of both excellent and poor lawyering on both sides.²⁴cräläwvirtualibräry

It is argued that the ruling in Estes vs. Texas ²⁵ that radio and television coverage infringes upon the accused's right to a fair trial has been abandoned in Chandler vs. Florida ²⁶ where the U.S. Supreme Court said:

An absolute constitutional ban on broadcast coverage of trials cannot be justified simply because there is a danger that, in some cases, prejudicial broadcast accounts of pre-trial and trial events may impair the ability of jurors to decide the issue of guilt or innocence uninfluenced by extraneous matter. The risk of juror prejudice in some cases does not justify an absolute ban on news coverage of trials by the printed media; so also the risk of such prejudice does not warrant an absolute constitutional ban on all broadcast coverage. The appropriate safeguard against such prejudice is the defendant's right to demonstrate that the media's coverage of his case--be it printed or broadcast-- compromised the ability of the particular jury that heard the case to adjudicate fairly.²⁷cräläwvirtualibräry

It should be pointed out that there are no television cameras permitted in federal courts in the United States ²⁸ despite experiments with their use. In contrast, there is no constitutional impediment to the use of television cameras in state courts, provided they do not distract the jurors and witnesses, or unduly burden the judge, thereby depriving the defendant of a fair trial. ²⁹cräläwvirtualibräry

It is evident that our policy banning live radio and television coverage of criminal proceedings is the same as that provided in U.S. federal courts. There is no convincing reason that the practice in some state courts is better than that followed in the federal courts concerning the banning of such radio and television coverage.

In any event, Chandler would necessarily imply that if the defendants right to fair trial is compromised by the broadcast coverage, then the ban should be imposed. Here, the fears expressed by Mr. Estrada and the IBP should live radio and television be allowed to cover his trial are not without bases. The pervasive radio and television coverage of Mr. Estradas impeachment hearing and of his arrest appear to have moved the crowd to march in the so-called EDSA II and EDSA III mass actions that toppled a government and tried to topple another.

With due respect, I doubt the efficacy of the measures suggested by the dissenting opinions to ensure fair trial in a criminal proceeding covered by live radio and television. These are: (1) no witness can be compelled to have his testimony televised; (2) the cameras and other equipment must be placed in the courtroom in such a manner as to be unobtrusive, possibly only a single fixed camera be installed in the courtroom to feed the broadcast stations; (3) no film, videotape, photography and audio reproductions may be used for advertising and commercial purposes; and (4) the radio and television broadcasters should give a balanced coverage of the prosecution and the defense. ³⁰cräläwvirtualibräry

It is not merely the obtrusive location in the courtroom of the cameras or their effects on the decorum, solemnity and dignity of the court that impinges on the accused's right to a fair trial. It is the beaming of or transmission of all events, testimonies and faces inside the courtroom directly to the viewing public, including the milling crowd outside the court's premises, coupled with the running accounts of the proceedings by the radio and television networks, which may be slanted or distorted by bias, self-interests and hate, thus whipping up passion and rage among the viewers, that offends the right of the accused to a fair trial. Depending upon the mood of the crowd, whether approving or threatening, witnesses may exaggerate, hesitate, backtrack or cower.

The judge has no immediate control over how the film, videotapes, etc. are used, whether for advertising or commercial purposes, although he may later on impose sanctions for their misuse, but then the deleterious effects to a fair trial are beyond recall.

Further, how can the court enforce guidelines that radio and television broadcasters should give a balanced coverage of the prosecution and the defense? Even if the court's rulings over the proposed guidelines are promptly made, they are subject to appeal, thus possibly delaying the court proceedings over collateral matters. And even if the trial should proceed and the accused convicted pending appeal on the courts rulings, the accused may seek the reversal of said conviction on the ground of mistrial due to the deprivation of his right to due process. The damage then to all concerned is irreparable.

I believe that the present prohibition on the live radio and television coverage of court proceedings strikes the balance between the rights to free speech and press and to information on matters of public concern, and the accuseds right to a fair trial, and remains to be the practical rule on the matter.

Finally, as I have earlier stressed, recent history as shown that television broadcasts of significant national events have a strong tendency to incite pent-up emotions and feelings of an emotional populace. Undeniably, the events that occurred on January 16, 2001 which led to the abrupt conclusion of Mr. Estradas impeachment trial, witnessed by thousands of viewers on their television screens, triggered EDSA II. In the same manner, the broadcast coverage of Mr. Estradas arrest caused pro-Estrada groups to express their outrage at EDSA III.

It is not unlikely that the televised coverage of Mr. Estradas trial would induce either or both of these groups to again resort to demonstrations aimed at pressuring the Sandiganbayan to come up with a verdict favorable to them. Any attempt to pressure or interfere with the judicial process should be avoided, for court proceedings are not like elections, to be won through the use of the meeting hall, the radio, and the newspaper. ³¹ The nature of judicial proceedings requires that the conclusions to be reached in a case will be induced only by evidence, and argument in open court, and not by any outside influence. ³²cräläwvirtualibräry

Our nation has only begun the reconciliation process between the pro- and anti-Estrada groups. Broadcasting Mr. Estradas trial would only ignite the spark that brought forth EDSA II and EDSA III and resurrect the division between these groups.

I vote to DENY the petitions.

---

Endnotes:

¹ Petition of the Secretary of the Department of Justice, p. 3.

² Supplemental Comment on Petition for Live Radio-TV Coverage, p. 3.

³ Comment on Petition for Live Radio-TV Coverage, p.4.

⁴ Resolution of the Board of Governors of the Integrated Bar of the Philippines dated April 8, 2001, pp. 1-2.

⁵ Article III of the Constitution provides:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

⁶ Estes vs. Texas, 381 US 532, 539 (1965).

⁷ Sheppard v. Maxwell, 384 US 333, 362 (1966).

⁸ Estes v. Texas, supra.

⁹ Id., at 585.

¹⁰ In re Oliver, 333 US 257.

¹¹ Estes v. Texas, supra, p.583.

¹² P. THALER, THE WATCHFUL EYE: AMERICAN JURISPRUDENCE IN THE AGE OF THE TELEVISION TRIAL (1994).

¹³ Estes v. Texas, supra, p. 554.

¹⁴ Article III, Section 14 of the Constitution provides:

(1) No person shall be held to answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

¹⁵ T. Smith,. The Distortion of Criminal Trials Through Televised Proceedings. 21 LAW AND PSYCHOLOGY REVIEW 257 (Spring, 1997). [hereafter referred to as Smith]

¹⁶ Separate Opinion of Warren, J. in Estes vs. Texas, supra, p. 572.

¹⁷ Id., at 569.

¹⁸ Smith, supra, p. 261.

¹⁹ Id., at 262.

²⁰ Estes v. Texas, supra, p. 548.

²¹ 273 U.S. 510, 71 L ed 749.

²² Id. at 532.

²³ Estes v. Texas, supra, p. 549.

²⁴ R. Pugsley, This Courtroom Is Not A Television Studio: Why Judge Fujisaki Made The Correct Call In Gagging The Lawyers And Parties, And Banning The Cameras From The O.J. Simpson Civil Case. Mr. Pugsley is a professor at the Southwestern University of School of Law, Los Angeles. His essay was included in the symposium entitled "The Sound of Silence: Reflections on the Use of the Gag Order" sponsored by the Loyola of Los Angeles Entertainment Law Journal in 1997.

²⁵ Supra.

²⁶ 26449 US 560 (1981).

²⁷ Id., at 574-575.

²⁸ Rule 53 of the Federal Rules of Criminal Procedure states:

The taking of photographs in the courtroom during the progress of judicial proceedings or the radio broadcasting of judicial proceedings from the courtroom shall not be permitted by the court.

²⁹ Th[e United States Supreme] Court has no supervisory jurisdiction over state courts, and in reviewing a state court judgement, the Supreme Court is confined to evaluating it in relation to the Federal Constitution. (Chandler v. Florida, 449 US 560, 570 [1981]) x x x [The U.S. Supreme Court is] not empowered by the Constitution to oversee or harness state procedural experimentation; only when the state action infringes fundamental guarantees, [is the U.S. Supreme Court] authorized to intervene. [The U.S. Supreme Court] must assume state courts will be alert to any factors impairing an accuseds fundamental rights (Chandler v. Florida, supra, p. 582).

³⁰ See Dissenting opinions of Mr. Justice Reynato S. Puno and Mr. Justice Artemio v. Panganiban.

³¹ Bridges v. California, , 314 US 252, 271 (1941).

³² Estes v. Texas, supra, p. 551, citing Patterson v. Colorado, 205 US 454, 462,.