EN BANC

[A.M. No. 01-4-03-SC. June 29, 2001]

RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL IN THE SANDIGANBAYAN OF THE PLUNDER CASES AGAINST THE FORMER PRESIDENT JOSEPH E. ESTRADA, SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO CAYETANO and ATTY. RICARDO ROMULO, petitioners, vs. JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES, oppositors.

D E C I S I O N

VITUG, J.:

The travails of a deposed President continue. The Sandiganbayan reels to start hearing the criminal charges against Mr. Joseph E. Estrada. Media seeks to cover the event via live television and live radio broadcast and endeavors this Court to allow it that kind of access to the proceedings.

On 13 March 2001, the Kapisanan ng mga Brodkaster ng Pilipinas (KBP), an association representing duly franchised and authorized television and radio networks throughout the country, sent a letter[1] requesting this Court to allow live media coverage of the anticipated trial of the plunder and other criminal cases filed against former President Joseph E. Estrada before the Sandiganbayan in order "to assure the public of full ransparency in the proceedings of an unprecedented case in our history."[2] The request was seconded by Mr. Cesar N. Sarino in his letter of 05 April 2001 to the Chief Justice and, still later, by Senator Renato Cayetano and Attorney Ricardo Romulo.

On 17 April 2001, the Honorable Secretary of Justice Hernando Perez formally filed the instant petition,[3] submitting the following exegesis:

"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.

"5. Moreover, the live radio and television coverage of the proceedings will also serve the dual purpose of ensuring the desired transparency in the administration of justice in order to disabuse the minds of the supporters of the past regime of any and all unfounded notions, or ill-perceived attempts on the part of the present dispensation, to 'railroad' the instant criminal cases against the Former President Joseph Ejercito Estrada."[4]

Public interest, the petition further averred, should be evident bearing in mind the right of the public to vital information affecting the nation.

In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of this Court in a case for libel filed by then President Corazon C. Aquino. The resolution read:

"The records of the Constitutional Commission are bereft of discussion regarding the subject of cameras in the courtroom. Similarly, Philippine courts have not had the opportunity to rule on the question squarely.

While we take notice of the September 1990 report of the United States Judicial Conference Ad Hoc Committee on Cameras in the Courtroom, still the current rule obtaining in the Federal Courts of the United States prohibit the presence of television cameras in criminal trials. Rule 53 of the Federal Rules of Criminal Procedure forbids the taking of photographs during the progress of judicial proceedings or radio broadcasting of such proceedings from the courtroom. A trial of any kind or in any court is a matter of serious importance to all concerned and should not be treated as a means of entertainment. To so treat it deprives the court of the dignity which pertains to it and departs from the orderly and serious quest for truth for which our judicial proceedings are formulated.

"Courts do not discriminate against radio and television media by forbidding the broadcasting or televising of a trial while permitting the newspaper reporter access to the courtroom, since a television or news reporter has the same privilege, as the news reporter is not permitted to bring his typewriter or printing press into the courtroom.

"In Estes vs. Texas, the United States Supreme Court held that television coverage of judicial proceedings involves an inherent denial of the due process rights of a criminal defendant. Voting 5-4, the Court through 'Mr. Justice Clark, identified four (4) areas of potential prejudice which might arise from the impact of the cameras on the jury, witnesses, the trial judge and the defendant. The decision in part pertinently stated:

"'Experience likewise has established the prejudicial effect of telecasting on witnesses. Witnesses might be frightened, play to the camera, or become nervous. They are subject to extraordinary out-of-court influences which might affect their testimony. Also, telecasting not only increases the trial judge's responsibility to avoid actual prejudice to the defendant, it may as well affect his own performance. Judges are human beings also and are subject to the same psychologjcal reactions as laymen. For the defendant, telecasting is a form of mental harassment and subjects him to excessive public exposure and distracts him from the effective presentation of his defense.

'The television camera is a powerful weapon which intentionally or inadvertently can destroy an accused and his case in the eyes of the public.'

"Representatives of the press have no special standing to apply for a writ of mandate to compel a court to permit them to attend a trial, since within the courtroom, a reporter's constitutional rights are no greater than those of any other member of the public. Massive intrusion of representatives of the news media into the trial itself can so alter or destroy the constitutionally necessary judicial atmosphere and decorum that the requirements of impartiality imposed by due process of law are denied the defendant and a defendant in a criminal proceeding should not be forced to run a gauntlet of reporters and photographers each time he enters or leaves the courtroom.

"Considering the prejudice it poses to the defendant's 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.

"Accordingly, in order to protect the parties right to due process, to prevent the distraction of the participants in the proceedings and in the last analysis, to avoid miscarriage of justice, the Court resolved to PROHIBIT live radio and television coverage of court proceedings. Video footages of court hearings for news purposes shall be limited and restricted as above indicated."

Admittedly, the press is a mighty catalyst in awakening public consciousness, and it has become an important instrument in the quest for truth.[5] Recent history exemplifies media's invigorating presence, and its contribution to society is quite impressive. The Court, just recently, has taken judicial notice of the enormous effect of media in stirring public sentience during the impeachment trial, a partly judicial and partly political exercise, indeed the most-watched program in the boob-tubes during those times, that would soon culminate in EDSA II.

The propriety of granting or denying the instant petition involve the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial.[6]

When these rights race against one another, jurisprudence[7] tells us that the right of the accused must be preferred to win.

With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to make absolutely certain that an accused receives a verdict solely on the basis of a just and dispassionate judgment, a verdict that would come only after the presentation of credible evidence testified to by unbiased witnesses unswayed by any kind of pressure, whether open or subtle, in proceedings that are devoid of histrionics that might detract from its basic aim to ferret veritable facts free from improper influence,[8] and decreed by a judge with an unprejudiced mind, unbridled by running emotions or passions.

Due process guarantees the accused a presumption of innocence until the contrary is proved in a trial that is not lifted above its individual settings nor made an object of public's attention[9] and where the conclusions reached are induced not by any outside force or influence[10] but only by evidence and argument given in open court, where fitting dignity and calm ambiance is demanded.

Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy climate, with every reason to presume firmness of mind and resolute endurance, but it must also be conceded that "television can work profound changes in the behavior of the people it focuses on."[11] Even while it may be difficult to quantify the influence, or pressure that media can bring to bear on them 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 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.[12] It might be farcical to build around them an impregnable armor against the influence of the most powerful media of public opinion.[13]

To say that actual prejudice should first be present would leave to near nirvana the subtle threats to justice that a disturbance of the mind so indispensable to the calm and deliberate dispensation of justice can create.[14] The effect of television may escape the ordinary means of proof, but it is not far-fetched for it to gradually erode our basal conception of a trial such as we know it now.[15]

An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secrete conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process. In the constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to observe the proceedings, not too small as to render the openness negligible and not too large as to distract the trial participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings.[16]

The courts recognize the constitutionally embodied freedom of the press and the right to public information. It also approves of media's exalted power to provide the most accurate and comprehensive means of conveying the proceedings to the public and in acquainting the public with the judicial process in action; nevertheless, within the courthouse, the overriding consideration is still the paramount right of the accused to due process[17] which must never be allowed to suffer diminution in its constitutional proportions. Justice Clark thusly pronounced, "while a maximum freedom must be allowed the press in carrying out the important function of informing the public in a democratic society, its exercise must necessarily be subject to the maintenance of absolute fairness in the judicial process."[18]

This Court, in the instance[19] already mentioned, citing Estes vs. Texas,[20] the United States Supreme Court holding the television coverage of judicial proceedings as an inherent denial of due process rights of an accused, also identified the following as being likely prejudices:

"1. The potential impact of television x x x is perhaps of the greatest significance. x x x. From the moment the trial judge announces that a case will be televised it becomes a cause celebre. The whole community, x x x becomes interested in all the morbid details surrounding it. The approaching trial immediately assumes an important status in the public press and the accused is highly publicized along with the offense with which he is charged. Every juror carries with him into the jury box these solemn facts and thus increases the chance of prejudice that is present in every criminal case. x x x

"2. The quality of the testimony in criminal trials will often be impaired. The impact upon a witness of the knowledge that he is being viewed by a vast audience is simply incalculable. Some may be demoralized and frightened, some cocky and given to overstatement; memories may falter, as with anyone speaking publicly, and accuracy of statement may be severely undermined. x x x. Indeed, the mere fact that the trial is to be televised might render witnesses reluctant to appear and thereby impede the trial as well as the discovery of the truth.

"3. A major aspect of the problem is the additional responsibilities the presence of television places on the trial judge. His job is to make certain that the accused receives a fair trial. This most difficult task requires his undivided attention. x x x

4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its presence is a form of mental - if not physical-harassment, resembling a police line-up or the third degree. The inevitable close-up 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. The heightened public clamor resulting from radio and television coverage will inevitably result in prejudice."

In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and radio coverage could have mischievous potentialities for intruding upon the detached atmosphere that should always surround the judicial process.[21]

The Integrated Bar of the Philippines, in its Resolution of 16 April 2001, expressed its own concern on the live television and radio coverage of the criminal trials of Mr. Estrada; to paraphrase: Live television and radio coverage can negate the rule on exclusion of witnesses during the hearings intended to assure a fair trial; 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, and live television and radio coverage of the trial could allow the "hooting throng" to arrogate unto themselves the task of judging the guilt of the accused, such that the verdict of the court will be acceptable only if popular; and live television and radio coverage of the trial will not subserve the ends of justice but will only pander to the desire for publicity of a few grandstanding lawyers.

It may not be unlikely, if the minority position were to be adopted, to see protracted delays in the prosecution of cases before trial courts brought about by petitions seeking a declaration of mistrial on account of undue publicity and assailing a court a quo's action either allowing or disallowing live media coverage of the court proceedings because of supposed abuse of discretion on the part of the judge.

En passant, the minority would view the ponencia as having modified the case law on the matter. Just to the contrary, the Court effectively reiterated its standing resolution of 23 October 1991. Until 1991, the Court had yet to establish the case law on the matter, and when it did in its 23rd October resolution, it confirmed, in disallowing live television and radio coverage of court proceedings, that "the records of the Constitutional Commission (were) bereft of discussion regarding the subject of cameras in the courtroom" and that "Philippine courts (had) not (theretofore) had the opportunity to rule on the question squarely."

But were the cases decided by the U.S. courts and cited in the minority opinion really in point?

In Nebraska Press Association vs. Stewart,[22] the Nebraska State trial judge issued an order restraining news media from publishing accounts of confession or admissions made by the accused or facts strongly implicating him. The order was struck down. In Richmond Newspaper, Inc., vs. Virginia,[23] the trial judge closed the courtroom to the public and all participants except witnesses when they testify. The judge was reversed by the U.S. Supreme Court which ruled that criminal trials were historically open. In Globe Newspaper vs. Superior Court,[24] the US Supreme Court voided a Massachusetts law that required trial judges to exclude the press and the public from the courtroom during the testimony of a minor victim of certain sexual offenses.

Justice Stewart, in Chandler vs. Florida,[25] where two police officers charged with burglary sought to overturn their conviction before the US Supreme Court upon the ground that the television coverage had infringed their right to fair trial, explained that "the constitutional violation perceived by the Estes Court did not stem from the physical disruption that might one day disappear with technological advances in the television equipment but inhered, rather, in the hypothesis that the mere presence of cameras and recording devices might have an effect on the trial participants prejudicial to the accused."[26]

Parenthetically, the United States Supreme Court and other federal courts do not allow live television and radio coverage of their proceedings.

The sad reality is that the criminal cases presently involved are of great dimensions so involving as they do a former President of the Republic. It is undeniable that these cases have twice become the nation's focal points in the two conflicting phenomena of EDSA II and EDSA III where the magnitude of the events has left a still divided nation. Must these events be invited anew and risk the relative stability that has thus far been achieved? The transcendental events in our midst do not allow us to, turn a blind eye to yet another possible extraordinary case of mass action being allowed to now creep into even the business of the courts in the dispensation of justice under a rule of law. At the very least, a change in the standing rule of the court contained in its resolution of 23 October 1991 may not appear to be propitious.

Unlike other government offices, courts do not express the popular will of the people in any sense which, instead, are tasked to only adjudicate justiciable controversies on the basis of what alone is submitted before them.[27] A trial is not a free trade of ideas. Nor is a competing market of thoughts the known test truth in a courtroom.[28]

The Court is not all that unmindful of recent technological and scientific advances but to chance forthwith the life or liberty of any person in a hasty to bid to use and apply them, even before ample safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price too high to pay.

WHEREFORE, the petition is DENIED.

SO ORDERED.

Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.

Davide, Jr., C.J., Bellosillo, and Quisumbing, JJ., joins the dissenting opinion of Puno, J.

Puno, and Panganiban, JJ., see dissenting opinion.

Kapunan, and Sandoval-Gutierrez, JJ., see concurring opinion.

Melo, J., joins the dissents.

Mendoza, J., concur in the majority opinion of Vitug, J., and join the separate opinion of Kapunan, J.

Ynares-Santiago, J., on leave.



[1] Signed by KBP President Ruperto S. Nicdao, Jr.

[2] Letter to Hon. Hilario Davide Jr. by Ruperto Nicdao, 13 March 2001

[3] "Petition 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."

[4] Petition, pp. 3-4.

[5] Perfecto Fernandez, Law of the Press, 2nd Edition, p. 210

[6] Re: Live TV and radio coverage of the hearing of President Corazon C. Aquino Libel Case; infra.

[7] People vs. Alarcon, 60 Phil 265; Estes vs. Texas, 381 US 532; Sheppard vs. Maxwell, 384 US 333

[8] People vs.; Stapleton, 18 Colo. 568, 33 p. 167, 23. L.R.A 787, (1983)

[9] 75 American Jurisprudence 2d, p. 569

[10] Patterson vs. Colorado, 205 US 454.

[11] Keating, American Jurisdiction 2d, p. 565.

[12] US Supreme Court Reports, 14 L ed 2d, p.552

[13] As Mr Justice Jackson, dissenting in Craig vs. Harney, 331 U.S. 396, aptly said: 'Who does not prefer good to ill report of his work? And if fame -a good public name -is, as Milton said, the "last Infirmity of the noble mind," it is frequently the "first infirmity of a mediocre one."

[14] Freedom of the Press vs. Impartial Justice," MLQ Quarterly, Volume 6, No.2, p.100

[15] Cf. Fay v. New York, 332 US 261; Offut vs. United States, 348 US 11

[16] Ibid., p.574

[17] Mr. Justice Harran concurring in Estes vs. Texas, supra

[18] Mr. Justice Tom Clark concurring in Estes vs. Texas, supra

[19] Re: Live TV and radio coverage of Pres. Corazon Aquino's Libel case, 23 October 1991

[20] 381 U.S. 532, 14 L ed 2d 543, 85 S Ct 1628.

[21] Mr. Justice Harlan, concurring in Estes vs. Texas, supra

[22] 427 US 539.

[23] 448 US 555.

[24] 457 US 596.

[25] 449 US 560

[26] Ibid, p. 758.

[27] Supra, p. 6

[28] Frankfurter, J., dissenting in Bridges vs. California, 314 U.S. 252, 283