REPORT NO.

14
Protection of the Right of the Accused against prejudicial publicity

What is prejudicial publicity? See the definition in Webb v. De Leon, 247 SCRA 653 (1995) and
People v. Teehankee, 249 SCRA 54 (1995). When is publicity prejudicial to the accused's right
to fair trial?

In the case of People of the Philippines (plaintiff-appellee) v. Teehankee

(accused-appellant), the appellant contended that:

THE PUBLICITY GIVEN THE CASE AGAINST THE APPELLANT WAS

MASSIVE, OVERWHELMING, AND PREJUDICIAL AS TO EFFECTIVELY
DEPRIVE THE ACCUSED OF RIGHT TO IMPARTIAL TRIAL.

In his third assigned error, appellant blames the press for his conviction as he
contends that the publicity given to his case impaired his right to an impartial
trial. He postulates there was pressure on the trial judge for high-ranking
government officials avidly followed the developments in the case (as no less
than Vice-President Joseph Estrada and then Department of Justice Secretary
Franklin Drilon attended some of the hearings and, President Corazon Aquino
even visited victim Maureen Hultman while she was still confined at the
hospital). He submits that the trial judge failed to protect him from prejudicial
publicity and disruptive influences which attended the prosecution of the
cases. He claims there were placards displayed during the hearing of the
cases, spectators inside the courtroom clapped their hands and converted the
proceedings into a carnival. In another instance, he was allegedly given the
"finger sign" by several young people while he was leaving the courtroom on
his way back to his cell

He cited instances where the trial judge failed to protect him from prejudicial publicity
and disruptive influences. He mentions that:

(1) The trial judge was under pressure as high-ranking government officials avidly
followed the developments of the case
(2) There were disruptive influences that attended the prosecution of the cases —
mentioning placards, a carnival-like proceeding with spectators clapping their
hands, and young people that allegedly gave him the “finger sign”

Here, he alleges that because of the media, his case garnered public attention (like the
instances cited above) that was partial and detrimental to his trial as it could have highly
influenced the judge’s judgment. With this, the appellant accuses the press and its
publicity of his case of impairing his right to an impartial trial — saying that the trial judge
failed to protect him from prejudicial publicity.

From this, we ask the following questions:

(1) What is prejudicial publicity?

(2) When is publicity prejudicial to the accused's right to a fair trial?

We cannot sustain appellant's claim that he was denied the right to impartial
trial due to prejudicial publicity. It is true that the print and broadcast media
gave the case at bar pervasive publicity, just like all high profile and high stake
criminal trials. Then and now, we rule that the right of an accused to a fair trial
is not incompatible to a free press. To be sure, responsible reporting enhances
an accused's right to a fair trial for, as well pointed out, "a responsible press
has always been regarded as the handmaiden of effective judicial
administration, especially in the criminal field . . . The press does not simply
publish information about trials but guards against the miscarriage of justice by
subjecting in the police, prosecutors, and judicial processes to extensive public
scrutiny and criticism.

As seen above, publicity is a normal occurrence in extraordinary and controversial

cases. In fact, publicity caters to both the public and the accused. It aids the demands of
freedom of speech and of the press and the public's right to information whilst being a
watchdog of justice for the accused.

This publicity, however, can also impede an accused's right to a fair and impartial trial.
Publicity that causes such impediment is what we define as prejudicial publicity.

Pervasive publicity is not per se prejudicial to the right of an accused to fair

trial. The mere fact that the trial of appellant was given a day-to-day,
gavel-to-gavel coverage does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired his impartiality. For one, it
is impossible to seal the minds of members of the bench from pre-trial and
other off-court publicity of sensational criminal cases… Our judges are learned
in the law and trained to disregard off-court evidence and on-camera
performances of parties to a litigation. Their mere exposure to publications and
publicity stunts does not per se fatally infect their impartiality.
Specifically, prejudicial publicity is publicity that unduly influences the judge’s opinion on
a case and an accused’s guilt. When publicity permeates the mind of the judge and
impairs his partiality, publicity is said to be prejudicial.

Now that we know what prejudicial publicity is, when exactly is publicity prejudicial to
the accused's right to a fair trial?

In the case Webb v. De Leon, 247 SCRA 653 (1995), the court recognized that
pervasive and prejudicial publicity under certain circumstances can deprive an accused
of his due process right to fair trial. To quote:

In democratic settings, media coverage of trials of sensational cases cannot

be avoided and oftentimes, its excessiveness has been aggravated by kinetic
developments in the telecommunications industry. For sure, few cases can
match the high volume and high velocity of publicity that attended the
preliminary investigation of the case at bar. Our daily diet of facts and fiction
about the case continues unabated even today. Commentators still bombard
the public with views not too many of which are sober and sublime. Indeed,
even the principal actors in the case — the NBI, the respondents, their lawyers
and their sympathizers — have participated in this media blitz. The possibility
of media abuses and their threat to a fair trial notwithstanding, criminal trials
cannot be completely closed to the press and the public.

“...while the light of publicity may be a good disinfectant of unfairness, too

much of its heat can bring to flame an accused's right to fair trial.”

In Rule 115 of the Revised Rules of Criminal Procedure, the rights of the accused at trial
include (a) to be presumed innocent until the contrary is proved beyond reasonable
doubt and (h) to have speedy, impartial and public trial. When these rights are
compromised by publicity, said publicity becomes prejudicial to the accused's right to a
fair trial.

To expound, publicity becomes prejudicial to the accused's right to a fair trial when
publicity permeates the mind of the judge and impairs his partiality, resulting to the
presumption of innocence being tainted and the judge becoming impartial — infringing
on the rights mentioned in the paragraph above.

How do we determine if an accused is denied their right to due process because of

prejudicial publicity?

At best, appellant can only conjure possibility of prejudice on the part of the
trial judge due to the barrage of publicity that characterized the investigation
and trial of the case. In Martelino, et al. v. Alejandro, et a1., we rejected this
 standard of possibility of prejudice and adopted the test of actual prejudice as
we ruled that to warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly influenced, not simply
that they might be, by the barrage of publicity. In the case at bar, the records
do not show that the trial judge developed actual bias against appellant as a
consequence of the extensive media coverage of the pre-trial and trial of his
case. The totality of circumstances of the case does not prove that the trial
judge acquired a fixed opinion as a result of prejudicial publicity which is
incapable of change even by evidence presented during the trial. Appellant
has the burden to prove this actual bias and he has not discharged the burden.

As seen above, the appellant only raised the ‘possibility of prejudice’ because of the
overwhelming amount of publicity that surrounded the case — implying that the said
publicity could have unduly influenced the judge’s decision. However, instead of using
the ‘possibility of prejudice’ to assess whether the accused has been denied their rights
at trial, the court used the test of actual prejudice and the totality of circumstances
test.

The test of actual prejudice requires that there must be allegation and proof that the
judges have been unduly influenced, not simply that they might be. This means that
before the court can conclude that the accused was prejudiced by media publicity, the
appellant must first show substantial proof, not merely cast suspicions. There must be a
showing that adverse publicity indeed influenced the court's decision. The appellant has
the burden to prove the actual bias and discharge the burden.

This test of actual prejudice is also partnered with the totality of circumstances test which
is used to determine if the allegation and proof are reliable enough to establish probable
cause that the accused was denied their right to due process because of prejudicial
publicity.

This test was also used in the case of Webb v. De Leon, 247 SCRA 653 (1995) where
the petitioner assailed the prejudicial publicity that attended their preliminary
investigation:

In the case at bar, we find nothing in the records that will prove that the tone
and content, of the publicity that attended the investigation of petitioners fatally
infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just
rely on the subliminal effects of publicity on the sense of fairness of the DOJ
Panel, for these are basically unbeknown and beyond knowing. To be sure,
the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior
State Prosecutors. Their long experience in criminal investigation is a factor to
consider in determining whether they can easily be blinded by the klieg lights
 of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of
bias for it does not appear that they considered any extra-record evidence
except evidence properly adduced by the parties. The length of time the
investigation was conducted despite its summary nature and the generosity
with which they accommodated the discovery motions of petitioners speak well
of their fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the ground of bias
resulting from their bombardment of prejudicial publicity.

In this case, the petitioner argues that the DOJ Panel lost impartiality due to prejudicial
publicity and that their right to due process was denied.

Using the test of actual prejudice, the court noted that there was no proof to back the
allegations — failing the test as it requires that there must be allegation and proof that
the judges have been unduly influenced, not simply that they might be. On the other
hand, using the totality of circumstances test, the court took into consideration the
judge’s credibility, the resolution itself, and the length of the investigation — concluding
that no evidence suggest bias or unduly influence caused by publicity

As seen in both cases, the issue of prejudicial publicity lies ambigously between the
conflicting demands of freedom of speech and of the press, the public's right to
information, and an accused's right to a fair and impartial trial. As such, finding a balance
between liberty and order is an imperative remedy. What can be done such that the
freedom of speech, of the press, and the right to information are exercised without
denying the accused’s right to a fair and impartial trial and vice versa?

Freedom of speech Accused’s right

Freedom of the press = to a fair
Public’s right to information and impartial trial
In Re: Request for Live Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder
Cases Against Former President Joseph E. Estrada, why did the Supreme Court allow the
audio-visual recording of former President Estrada’s trial at the Sandiganbayan? What were the
conditions set by the Supreme Court for the audio-visual recording?

On 13 March 2001, the Kapisanan ng mga Brodkaster ng Pilipinas (KBP), sent a letter
requesting the court to allow live media coverage of the anticipated trial of the plunder
and other criminal cases filed against former President Joseph E. Estrada in order to
assure the public of full transparency in the proceedings the case.

"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."

The petition, which was formally filed by then-Secretary of Justice Hernando Perez, cited
that the case was a matter of public concern and interest as it involved previous acts of
the impeached president, his family, and other government officials. They argued that
the case calls for recognition of the right of the public to vital information affecting the
nation, and that it is in such right’s best interest to allow the live coverage of the trial.

The petition sought the re-examination of the resolution of the libel case filed by
then-President Corazon C. Aquino wherein the court resolved to prohibit live radio and
television coverage of court proceedings. In the resolution, they voiced the country’s
scarce discourse regarding the presence of cameras in courtrooms— referencing
discussions from the United States in its stead.

Some references mentioned were Rule 53 of the Federal Rules of Criminal Procedure
and Estes vs. Texas which respectively prohibited (1) the taking of photographs during
the progress of judicial proceedings or radio broadcasting of such proceedings from the
courtroom and (2) live radio and television coverage of court proceedings.

The case Estes vs. Texas specifically 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.

(1) Live media coverage of a case highly publicizes the accused and the offenses he
is charged with— such publicity is carried by the juror, thus increasing the chance
of prejudice in handling the case.
(2) Live media coverage has a detrimental impact on witnesses as they are being
viewed by a wide audience. As such, the quality of testimonies will be adversely
affected— impeding the trial and the discovery of truth.
(3) Live media coverage increases a judge’s responsibility to avoid actual prejudice.
This added responsibility disrupts them of their job to make certain of a fair trial
which requires their undivided attention.
(4) Live media coverage impacts the defendant as it subjects him to excessive public
exposure and distracts him from the effective presentation of his defense.

To simplify the reasons enumerated above, the prohibition of live radio and television
coverage of cases was done in order to (1) protect the parties' right to due process, (2)
to prevent the distraction of the participants in the proceedings, and (3) to avoid
miscarriage of justice. In this ruling, the accused’s right to a fair and impartial trial
triumphed over freedom of speech and of the press and the public's right to information.

Following the resolution above, the petitioners filed a motion for reconsideration of the
court’s decision of denying their request and prohibiting the live broadcast of the trial.
They argued that (1) the right of the people and the press should be favored as the
people are entitled to information and that (2) live media coverage safeguards the court
from being used for selfish interests.

In opposition, Former President Joseph E. Estrada is firm in his objection to the live
coverage. He argues that it violates the sub judice rule which restricts comments and
disclosures pertaining to pending judicial proceedings in order to avoid prejudging the
issue, influencing the court, or obstructing the administration of justice. He goes on by
saying that live media coverage will pressure the court into making a decision and
contends that the right of the people to information may be served through other means
less distracting, degrading, and prejudicial than live TV and radio coverage.

The court, considering the arguments of both parties, found no reason to alter or modify
its decision prohibiting live or real-time broadcast by radio or television. As such:
 By a vote of nine (9) to six (6) of its members,1 the Court denies the motion for
reconsideration of the Secretary of Justice.

Despite maintaining its previous stand, the court resolved to allow the audio-visual
recording of the trial in place of live media coverage of the trial. This leads us to ask:
Why did the Supreme Court allow the audio-visual recording of former President
Estrada’s trial at the Sandiganbayan?

Considering the significance of the trial before the Sandiganbayan of former

President Estrada and the importance of preserving the records thereof, the
Court believes that there should be an audio-visual recording of the
proceedings. The recordings will not be for live or real time broadcast but for
documentary purposes. Only later will they be available for public showing,
after the Sandiganbayan shall have promulgated its decision in every case to
which the recording pertains. The master film shall be deposited in the
National Museum and the Records Management and Archives Office for
historical preservation and exhibition pursuant to law.

In line with the extract seen above, the audio-visual recording was allowed because of
the following reasons:
(1) the hearings are of historic significance.
The significance of the case is tremendous as it involves high-ranking
officials like the impeached president. The hearings are of historic
significance as they assert that these officials are not above the law and
that justice is fair and impartial.
(2) the Estrada cases involve matters of vital concern to our people who have
a fundamental right to know how their government is conducted
This right can be enhanced by audio-visual presentation.
(3) audio-visual presentation is essential for the education and civic training of
the people
Access to trial allows for public scrutiny of the judicial process, which in
turn enhances the integrity of the fact-finding process whilst allowing
people to observe the judicial process.
(4) for documentary purposes
Because of the limitations of print media and documents to preserve the
essence of the proceedings, the recordings will be primarily used when a
review of the trial is sought or becomes necessary such that accuracy is
ensured.
The court’s decision of allowing audio-visual recordings addresses the consequences of
live media coverage as the release of the tapes is delayed— serving many important
purposes (like that of the people’s right to information) as enumerated above without
impairing the right of the accused to a fair trial. The recordings, however, have their own
set of conditions in order to ensure that fairness and impartiality are maintained.

What were the conditions set by the Supreme Court for the audio-visual
recording?

For the purpose of recording the proceedings, cameras will be inconspicuously

installed in the courtroom and the movement of TV crews will be regulated,
consistent with the dignity and solemnity of the proceedings. The trial shall be
recorded in its entirety, except such portions thereof as the Sandiganbayan
may decide should not be held public pursuant to Rule 119, §21 of the Revised
Rules of Criminal Procedure. No comment shall be included in the
documentary except annotations which may be necessary to explain certain
scenes which are depicted. The audio-visual recordings shall be made under
the supervision and control of the Sandiganbayan or its Division as the case
may be.

In line with the passage above, the conditions set by the Supreme Court for the
audio-visual recording are as follows:
(1) the trial shall be recorded in its entirety, excepting such portions thereof as
the Sandiganbayan may determine should not be held public under Rule 119,
§21 of the Rules of Criminal Procedure;
Sec. 21. Exclusion of the public. – The judge may, motu proprio, exclude
the public from the courtroom if the evidence to be produced during the
trial is offensive to decency or public morals. He may also, on motion of
the accused, exclude the public from the trial except court personnel and
the counsel of the parties.
(2) cameras shall be installed inconspicuously inside the courtroom and the
movement of TV crews shall be regulated consistent with the dignity and
solemnity of the proceedings;
To serve the rights of the accused, the recording of the trial should be
unimposing and subtle as to minimize its impact and pressure on those
present during the trial.
(3) the audio-visual recordings shall be made for documentary purposes only
and shall be made without comment except such annotations of scenes depicted
therein as may be necessary to explain them;
The recordings are solely for documentary purposes and not that of
entertainment and the likes, as such, comments are not allowed as 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 the media should
refrain from publishing or airing comments regarding a pending case.
(4) the live broadcast of the recordings before the Sandiganbayan shall have
rendered its decision in all the cases against the former President shall be
prohibited under pain of contempt of court and other sanctions in case of
violations of the prohibition;
The live broadcast of the recordings or its release before the court is able
to finalize its decision shall be prohibited. The recordings shall only be
released after the court has decided in all the concerned cases.
(5) to ensure that the conditions are observed, the audio-visual recording of the
proceedings shall be made under the supervision and control of the
Sandiganbayan or its Division concerned and shall be made pursuant to rules
promulgated by it; and
(6) simultaneously with the release of the audio-visual recordings for public
broadcast, the original thereof shall be deposited in the National Museum
and the Records Management and Archives Office for preservation and
exhibition in accordance with the law.

As seen, the conditions set by the Supreme Court ensure the accused's right to a fair
and impartial trial— catering to the restrictions presented by live media coverage and
minimizing the chances of potential prejudice which might arise from the impact of the
cameras on the jury, witnesses, the trial judge and the defendant.
The police are proscribed from presenting suspects before the media “firing line.” Discuss the
2008 PNP Policy of Prescribing the Presentation or Non-Presentation of Suspects to the Media.
Do you think that the guidelines set forth in this Memorandum are being practiced in real life?

As defined in an article by Rappler, “Firing line” describes the position cameramen

usually take during a press conference or ambush media interviews. They tower beside
each other forming a line or a semi-circle, with their cameras pointing to the subject,
ready to shoot. Reporters stand at their sides, armed with questions.

Such presentation of suspects who have yet to undergo trial is a denial of the rights of
the accused, especially their right to be presumed innocent until the contrary is proved
beyond reasonable doubt, as they are paraded like criminals before their guilt is proven.
This act of publicity shames the accused and deprives them of the protection of their
dignity— a clear violation of human rights and their presumption of innocence.

In line with the objective to inform and protect the public from suspected
unscrupulous individuals it has been the practice of the PNP to present
suspects to the media in a "firing line" (arrested suspect in orange t-shirt
behind police officers). However, the presentation of the suspects to the media
is not only violative of their constitutional rights of presumption of innocence
but also of their human rights subjecting them to unwanted publicity thereby
besmirching their name and reputation including that of their family before guilt
is proven.

The presentation of suspects to the media in a “firing line” has been a common practice,
especially heightened during then-President Duterte’s infamous ‘War on Drugs’. During
his term, the police presented thousands of illegal drug suspects to the media. Oscar
Albayalde, former PNP Chief during that time, argued that their presentation of the
accused was in light of the public’s right to information. This, however, infringes on the
rights of the suspects as the law requires public trial and not trial by publicity.

These presentations, despite being done in favor of the public’s right to know, present
the suspects in a way such that they are assumed to be guilty of the crime without the
court’s judgment. Yet again, freedom of speech, of the press, and the public's right to
information, are pitted against an accused's right to a fair and impartial trial.

In line with this, the 2008 PNP Policy of Prescribing the Presentation or
Non-Presentation of Suspects to the Media ensures the balance of polarity between the
constitutionally provided right of the suspect vis a vis presumption of innocence
on one hand; and the right of the state to public order and safety and access to
information on matters of public information on the other.

On one hand, the right of the individual to presumption of innocence, human

dignity, due process, equal protection of laws (Section 1, Art 3, of the 1987 Phil
Constitution); and on the other hand, the right of the state to public order and
safety and the right of access to information on matters of public information
(Section 7, Art. 3 of the 1987 Phil. Constitution).

The guidelines set forth in the Memorandum are as follows:

(1) Suspects arrested for any violation of the law shall in no case be presented in
a “firing line” to the media.

(2) The arresting PNP office may use the media, print and broadcast alike, to inform
the public about the arrest of the suspect/s, the crime committed, its nature
and circumstances, the time and place of its commission, and the other
person/s involved.
With the restricted access to have suspects shot by cameras, police are
expected to compensate by providing media with information and footage
of arrested suspects as long as this does not compromise ongoing
probes.

(3) The PNP may continue publishing the pictures of wanted person with warrant/s
of arrest including their personal circumstances in any medium as their
continued absconding of justice would further derail and deny the administration
of justice. However, once arrested, arresting officers shall in no case present
them to the media in a “firing line” manner; provided that the provisions of RA
9344 (Juvenile Justice and Welfare Act) as regards to the treatment of Children
in Conflict with the Law (CICL) shall be strictly adhered to.
Only wanted persons with warrants of arrest, not arrested suspects, can
have their pictures and information published by the police as their
nonadherence to the law is an obstruction of justice. Mugshots can be
released by cops, but can be appealed by the accused if in case they
want them kept confidential

(4) The police shall not allow any form of manhandling or infliction of bodily
harm, such as slapping, boxing and the like, the person of the suspect by any
person. Likewise, it is stressed that proper criminal charges must be filed against
anyone who physically maltreat or harm the suspect while in police custody.
 (5) The concerned PNP office shall designate an area/space (i.e. police station
lobby/service desk area, press briefing room, etc.) where media can have
permissive access to information relative to an incident or any police activity,
in conformity with existing policies and regulations. Other areas that are not so
designated shall be deemed exclusion areas where security measures are to be
strictly enforced.
Concerned PNP offices are required to set up areas for the media to
acquire information on any criminal case, as long as they are not allowed
to overstep.

(6) PNP Personnel found violating this guideline shall be administratively

charged for Less Grave Neglect of Duty pursuant to NAPOLCOM
Memorandum Circular 2007-001, Rule 21, Section 2B, paragraph 1,
subparagraph A, "failure to execute lawful orders from higher authority or tolerate
any subordinate to ignore or ridicule any order, rule or regulation." And
subparagraph D "failure to comply with any lawful order or instruction of a
superior officer or Chief of Police." Further, repeated violation of the same will
translate to incorrigibility meriting the imposition of dismissal from the service.
Stated further, Chief of Offices or unit commanders are tasked to monitor all PNP
personnel assigned in their respective jurisdictions to ensure that this policy is at
all times being complied, and shall likewise be held accountable by virtue of
command responsibility.

Such guidelines have been implemented since 2008 but have since been snubbed and
left neglected by the police. It was only in 2018 that PNP officials formally decided to
follow the memorandum. Their public announcement of adherence to the memorandum,
however, did not last long. Until now, the accused are still subjected to degrading media
publicity with their personal information made public to the media even after their arrest,
instances of suspects being harmed or injured by the police are still common, and police
continuously violate the memorandum without consequence.

Recent examples concerning the memorandum can be enumerated from a number of

controversial cases. One case would be the presentation of Joel Escorial, who
confessed to the murder of radio broadcaster Percy Lapid, to the media where he was
interrogated by the police in front of a media “firing line”. He was asked questions
regarding the case in real-time which was broadcasted live for the public’s viewing. His
case is only one among many others,

All in all, the guidelines set forth in the memorandum are NOT being practiced in
real life.
How does Re: Request for Radio and Television Coverage of the Multiple Murder Cases Against
Maguindanao Governor Zaldy Ampatuan et al. differ from Estrada? What guidelines were laid
down to address the concerns mentioned in the Aquino and Estrada cases?

In Re: Request for Radio and Television Coverage of the Multiple Murder Cases Against
Maguindanao Governor Zaldy Ampatuan, numerous petitions were filed praying for the live
media coverage of the trial, the permission of recording devices in the courtroom, the installation
of a sufficient number of video cameras in the courtroom, and the formulation of reasonable
guidelines to govern the coverage and use of devices. All in all, they sought to lift the absolute
ban on live television and radio coverage of court proceedings.

In line with this, they urged the Court to revisit the following cases:
(1) 1991 ruling in Re: Live TV and Radio Coverage of the Hearing of President
Corazon C. Aquino’s Libel Case

RULING: Petition for live tv and radio coverage of the hearing of president
Corazon C. Aquino’s libel case was DENIED. The ruling is as follows:

“Considering the prejudice it poses to the defendant’s rights 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…”

(2) 2001 ruling in Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of
the Plunder Cases Against the Former President Joseph E. Estrada.

RULING: The motion for reconsideration of the decision denying the petitioners'
request for permission to televise and broadcast live the trial of former President
Estrada before the Sandiganbayan was DENIED. However, in lieu of live TV and
radio coverage of the trial, the court resolved to order the audio-visual
recording of the trial. Included in the ruling are as follows:

“Considering the significance of the trial before the Sandiganbayan of

former President Estrada and the importance of preserving the records
thereof, the Court believes that there should be an audio-visual
recording of the proceedings...”
In mentioning these cases, they contend that their rulings violate the doctrine that proposed
restrictions on constitutional rights are to be narrowly construed and outright prohibition cannot
stand when regulation is a viable alternative.

This simply means that laws must be written precisely to place as few restrictions as possible
on constitutional rights like that of freedom of speech, of the press, and the public’s right to
information. This means that the previously mentioned case rulings’ outright prohibition of live
media coverage violates the doctrine, especially when regulation is a viable alternative.

Hence, the present petitions which assert the exercise of the freedom of the
press, right to information, right to a fair and public trial, right to assembly and
to petition the government for redress of grievances, right of free access to
courts, and freedom of association, subject to regulations to be issued by the
Court.

This is especially true for the request for live coverage of the trial of the Maguindanao Massacre
cases, the worst election-related violence, and the most brutal killing of journalists in recent
history. The case’s historical significance and impact, specifically the gruesomeness of the
crime, prominence of the accused, and the number of media personnel killed emphasizes that
the case 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.

A decade after Estrada and a score after Aquino, the Court is once again faced with the issue of
balancing between freedom of speech, of the press, and the public's right to information on one
hand, and an accused's right to a fair and impartial trial on the other.

Specifically, they are yet again left with the responsibility of resolving the "serious risks" posed
by live media coverage to the accused’s right to due process that were left unexplained and
unexplored in the Aquino and Estrada cases— especially to their detrimental effects on the
exercise of press freedom and the right to public information.

How does Re: Request for Radio and Television Coverage of the Multiple Murder Cases
Against Maguindanao Governor Zaldy Ampatuan et al. differ from Estrada?

One apparent circumstance that sets the Maguindanao Massacre cases apart
from the earlier cases is the impossibility of accommodating even the
parties to the cases – the private complainants/families of the victims and
other witnesses – inside the courtroom.
The request for live media coverage of the Maguindanao Massacre trial differs from the
request for live media coverage of the Estrada trials in the unfortunate impossibility of
holding the proceedings in a courtroom that will accommodate all the interested
parties, whether private complainants or accused.

The rights of the accused include the right to a public trial which means ensures that his
rights are not compromised and is given a fair trial. As said earlier a public trial does not
mean trial by publicity, this means 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.

Furthermore, constitutionally, a courtroom should have enough facilities to cater to a

reasonable number of the public who wish to observe the trial— ot too small as to render
the openness negligible and not too large as to distract the trial participants from their
proper functions,

Despite both the Estrada and Maguindanao Massacre cases being matters over which
the entire citizenry has the right to know, be informed and made aware of, the latter case
was granted live media coverage due to the presence of hundreds of families that wish
to view the trial.

It cannot be gainsaid that the families of the 57 victims and of the 197
accused have as much interest, beyond mere curiosity, to attend or monitor
the proceedings as those of the impleaded parties or trial participants. It bears
noting at this juncture that the prosecution and the defense have listed more
than 200 witnesses each.

In consideration of this, the court ruled that:

Indeed, the Court cannot gloss over what advances technology has to offer in
distilling the abstract discussion of key constitutional precepts into the
workable context. Technology per se has always been neutral. It is the use
and regulation thereof that need fine-tuning. Law and technology can work
to the advantage and furtherance of the various rights herein involved, within
the contours of defined guidelines.

WHEREFORE, in light of the foregoing disquisition, the Court PARTIALLY

GRANTS PRO HAC VICE the request for live broadcast by television and
radio of the trial court proceedings of the Maguindanao Massacre cases,
subject to the guidelines herein outlined.
What guidelines were laid down to address the concerns mentioned in the Aquino and
Estrada cases?

In so allowing pro hac vice the live broadcasting by radio and television of the Maguindanao
Massacre cases, the Court laid down the following guidelines toward addressing the concerns
mentioned in Aquino and Estrada:

(1) An audio-visual recording of the Maguindanao massacre cases may be made both
for documentary purposes and for transmittal to live radio and television
broadcasting.
Unlike the Aquino and Estrada cases which respectively prohibited live media
coverage and allowed audio-visual recording for the sole purpose of
documentation, the Maguindanao Massacre trial cases permit audio-visual
recording for both documentary purposes and live media coverage.

(2) Media entities must file with the trial court a letter of application, manifesting that
they intend to broadcast the audio-visual recording of the proceedings and that they
have the necessary technological equipment and technical plan to carry out the same,
with an undertaking that they will faithfully comply with the guidelines and regulations
and cover the entire remaining proceedings until promulgation of judgment.
- No selective or partial coverage shall be allowed.
- No media entity shall be allowed to broadcast the proceedings without an
application duly approved by the trial court.

(3) A single fixed compact camera shall be installed inconspicuously inside the
courtroom to provide a single wide-angle full-view of the sala of the trial court. No
panning and zooming shall be allowed to avoid unduly highlighting or downplaying
incidents in the proceedings. The camera and the necessary equipment shall be
operated and controlled only by a duly designated official or employee of the
Supreme Court. The camera equipment should not produce or beam any distracting
sound or light rays. Signal lights or signs showing the equipment is operating should not
be visible. A limited number of microphones and the least installation of wiring, if
not wireless technology, must be unobtrusively located in places indicated by the trial
court. The Public Information Office and the Office of the Court Administrator shall
coordinate and assist the trial court on the physical set-up of the camera and equipment.
Overall, this guideline was included in order to make the media’s presence
unimposing and subtle so as to minimize its impact and pressure on those
present during the trial and keep the constitutionally necessary judicial
atmosphere and decorum of the court.

(4) The transmittal of the audio-visual recording from inside the courtroom to the media
entities shall be conducted in such a way that the least physical disturbance shall be
ensured in keeping with the dignity and solemnity of the proceedings and the
exclusivity of the access to the media entities.
 The hardware for establishing an interconnection or link with the camera equipment
monitoring the proceedings shall be for the account of the media entities, which should
employ technology that can (i) avoid the cumbersome snaking cables inside the
courtroom, (ii) minimize the unnecessary ingress or egress of technicians, and (iii)
preclude undue commotion in case of technical glitches.

If the premises outside the courtroom lack space for the set-up of the media entities’
facilities, the media entities shall access the audio-visual recording either via wireless
technology accessible even from outside the court premises or from one common web
broadcasting platform from which streaming can be accessed or derived to feed the
images and sounds.

At all times, exclusive access by the media entities to the real-time audio-visual
recording should be protected or encrypted.

(5) The broadcasting of the proceedings for a particular day must be continuous and
in its entirety, excepting such portions thereof where Sec. 21 of Rule 119 of the
Rules of Court27 applies, and where the trial court excludes, upon motion, prospective
witnesses from the courtroom, in instances where, inter alia, there are unresolved
identification issues or there are issues which involve the security of the witnesses and
the integrity of their testimony (e.g., the dovetailing of corroborative testimonies is
material, minority of the witness).

The trial court may, with the consent of the parties, order only the pixelization of the
image of the witness or mute the audio output, or both.

Sec. 21. Exclusion of the public. – The judge may, motu proprio, exclude the
public from the courtroom if the evidence to be produced during the trial is
offensive to decency or public morals. He may also, on motion of the accused,
exclude the public from the trial except court personnel and the counsel of the
parties.

(6) To provide a faithful and complete broadcast of the proceedings, no commercial break
or any other gap shall be allowed until the day’s proceedings are adjourned,
except during the period of recess called by the trial court and during portions of the
proceedings wherein the public is ordered excluded.

(7) To avoid overriding or superimposing the audio output from the on-going proceedings,
the proceedings shall be broadcast without any voice-overs, except brief annotations
of scenes depicted therein as may be necessary to explain them at the start or at the
end of the scene. Any commentary shall observe the sub judice rule and be subject
to the contempt power of the court;
 The sub judice rule restricts comments and disclosures pertaining to pending
judicial proceedings in order to avoid prejudging the issue, influencing the court,
or obstructing the administration of justice.

(8) No repeat airing of the audio-visual recording shall be allowed until after the
finality of judgment, except brief footages and still images derived from or cartographic
sketches of scenes based on the recording, only for news purposes, which shall likewise
observe the sub judice rule and be subject to the contempt power of the court;

(9) The original audio-recording shall be deposited in the National Museum and the
Records Management and Archives Office for preservation and exhibition in
accordance with law.

(10) The audio-visual recording of the proceedings shall be made under the supervision
and control of the trial court which may issue supplementary directives, as the
exigency requires, including the suspension or revocation of the grant of application by
the media entities.

(11) The Court shall create a special committee which shall forthwith study, design and
recommend appropriate arrangements, implementing regulations, and administrative
matters referred to it by the Court concerning the live broadcast of the proceedings pro
hac vice, in accordance with the above-outlined guidelines. The Special Committee shall
also report and recommend on the feasibility, availability and affordability of the
latest technology that would meet the herein requirements. It may conduct
consultations with resource persons and experts in the field of information and
communication technology.

(12) All other present directives in the conduct of the proceedings of the trial court
(i.e., prohibition on recording devices such as still cameras, tape recorders; and
allowable number of media practitioners inside the courtroom) shall be observed in
addition to these guidelines.
Note the vacillating decisions of the Supreme Court. Later, it disallowed the live coverage of the
Ampatuan trial upon the accused’s motion for reconsideration, citing lack of uniform rules, and
the need to protect the rights of the parties and maintain the dignity of court proceedings. But in
2019, the Court once again allowed live coverage during the promulgation of the judgment.
What uniform guidelines will you propose to protect both the right to a public trial and the right
against prejudicial publicity?

The decisions of the Supreme Court regarding the live coverage wavered across the
years with several petitions and motions for reconsideration submitted by the opposing
parties. The timeline is as follows:

2011
ALLOWED
The Supreme Court, for the first time, allowed the live
coverage of the trial and laid down the guidelines that
addressed the concerns mentioned in the cases of Aquino
and Estrada.

2012
The Supreme Court granted the motion for
reconsideration of the Ampatuan camp as they argued that
live media coverage would violate his right to due process.

2015
DISALLOWED
The Supreme Court affirmed its ruling disallowing the live
coverage of the Ampatuan Massacre trial, citing the lack of
uniformity in rule or practice in other jurisdictions in relation
to allowing cameras in the courtroom. It also cited the need
to protect the rights of the parties and the dignity of the
courts as well as ensure the orderly conduct of the
proceedings
 ⬇

2019
ALLOWED
The Supreme Court approved the live coverage of the
December 19 promulgation of the verdict in the Ampatuan
massacre case. Some guidelines included were:
(1) Only two cameras are allowed inside the
courtroom due to space limitations and security
concerns.
(2) The two cameras allowed inside the courtroom will
be manned by state television network PTV-4
under the strict control and supervision by the SC
Public Information Office.
(3) PTV-4 is required to allow other media entities to
tap into their network for their individual live
broadcasts.
(4) One camera will focus on the judge and the
person reading the decision, while another camera
will be directed at the parties and their counsel.
Only wide-angle shots are allowed.
(5) The decision on the Ampatuan massacre case will
be immediately uploaded on the Supreme Court
website.

What uniform guidelines will you propose to protect both the right to a public trial
and the right against prejudicial publicity?

The right to a public trial and the right against prejudicial publicity are both rights of the
accused that are said to be threatened by the permission of live media coverage of trials.
These rights are threatened as media, despite its purpose of being a source of news and
information, can be manipulated and intentionally or inadvertently, destroy an accused
and his case in the eyes of the public. As said before, publicity like such from the media
violates the accused's constitutional right to due process.

In consideration of these adverse effects of publicity, uniform guidelines I would propose

to protect both the right to a public trial and the right against prejudicial publicity would
be similar to the guidelines used in the Estrada trial audio-visual recordings and the
Maguindanao Massacre live coverage but with more emphasis on how (1) media
presence should be more un-intruding, subtle, and inconspicuous and how (2) the
coverage of the trial, including how the recordings are dealt with after, should be handled
with great sensitivity and guarded against any sort of error or manipulation.
(1) The trial shall be recorded in its entirety, excepting such portions thereof as
the Sandiganbayan may determine should not be held public under Rule 119,
§21 of the Rules of Criminal Procedure
(2) The audio-visual recordings shall be made both for documentary purposes
and for transmittal to live radio and television broadcasting and shall be
made without comment except such annotations of scenes depicted therein as
may be necessary to explain them;
Live commentaries are not allowed as they 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 the media should refrain from publishing or airing
comments regarding a pending case.
(3) Media entities must file with the trial court a letter of application, manifesting
that they intend to broadcast the audio-visual recording of the proceedings and
that they have the necessary technological equipment and technical plan to carry
out the same, with an undertaking that they will faithfully comply with the
guidelines and regulations and cover the entire remaining proceedings until
promulgation of judgment.
- No selective or partial coverage shall be allowed.
- No media entity shall be allowed to broadcast the proceedings without
an application duly approved by the trial court.
(4) Cameras shall be installed inconspicuously inside the courtroom and the
movement of TV crews shall be regulated consistent with the dignity and
solemnity of the proceedings;
To serve the rights of the accused, the recording of the trial should be
unimposing and subtle as to minimize its impact and pressure on those
present during the trial.
(5) The transmittal of the audio-visual recording from inside the courtroom to the
media entities shall be conducted in such a way that the least physical
disturbance shall be ensured in keeping with the dignity and solemnity of
the proceedings and the exclusivity of the access to the media entities. At all
times, exclusive access by the media entities to the real-time audio-visual
recording should be protected or encrypted.
(6) The broadcasting of the proceedings for a particular day must be
continuous and in its entirety, excepting such portions thereof where Sec.
21 of Rule 119 of the Rules of Court27 applies, and where the trial court
excludes, upon motion, prospective witnesses from the courtroom, in instances
where, inter alia, there are unresolved identification issues or there are issues
which involve the security of the witnesses and the integrity of their testimony
(e.g., the dovetailing of corroborative testimonies is material, minority of the
witness).
 The trial court may, with the consent of the parties, order only the
pixelization of the image of the witness or mute the audio output, or both.

Sec. 21. Exclusion of the public. – The judge may, motu proprio, exclude
the public from the courtroom if the evidence to be produced during the
trial is offensive to decency or public morals. He may also, on motion of
the accused, exclude the public from the trial except court personnel and
the counsel of the parties.
(7) To provide a faithful and complete broadcast of the proceedings, no commercial
break or any other gap shall be allowed until the day’s proceedings are
adjourned, except during the period of recess called by the trial court and during
portions of the proceedings wherein the public is ordered excluded.
(8) To avoid overriding or superimposing the audio output from the on-going
proceedings, the proceedings shall be broadcast without any voice-overs,
except brief annotations of scenes depicted therein as may be necessary to
explain them at the start or at the end of the scene. Any commentary shall
observe the sub judice rule and be subject to the contempt power of the
court;
The sub judice rule restricts comments and disclosures pertaining to pending
judicial proceedings in order to avoid prejudging the issue, influencing the court,
or obstructing the administration of justice.
(9) No repeat airing of the audio-visual recording shall be allowed until after
the finality of judgment, except brief footages and still images derived from or
cartographic sketches of scenes based on the recording, only for news purposes,
which shall likewise observe the sub judice rule and be subject to the contempt
power of the court;
(10) The original audio-recording shall be deposited in the National Museum
and the Records Management and Archives Office for preservation and
exhibition in accordance with law.
(11) The audio-visual recording of the proceedings shall be made under the
supervision and control of the trial court which may issue supplementary
directives, as the exigency requires, including the suspension or revocation of the
grant of application by the media entities.
(12) The Court shall create a special committee which shall forthwith study,
design and recommend appropriate arrangements, implementing regulations,
and administrative matters referred to it by the Court concerning the live
broadcast of the proceedings pro hac vice, in accordance with the above-outlined
guidelines. The Special Committee shall also report and recommend on the
feasibility, availability and affordability of the latest technology that would
meet the herein requirements. It may conduct consultations with resource
persons and experts in the field of information and communication technology.
(13) All other present directives in the conduct of the proceedings of the trial
court (i.e., prohibition on recording devices such as still cameras, tape recorders;
 and allowable number of media practitioners inside the courtroom) shall be
observed in addition to these guidelines.

The guidelines enumerated above are just modified version of the guidelines used in the
Estrada trial audio-visual recordings and the Maguindanao Massacre live coverage
combined. I, personally, am not versed enough in making guidelines, let alone uniform
ones, but I modified it such that both the court and the media are given great
responsibility in ensuring that the rights of the accused are protected. The role of media,
especially, in the issue of prejudicial prejudice as a tool that can violate the rights of the
accused, should be resolved by holding them responsible for their coverage. As such,
the guidelines above stress the responsibility of the media in ensuring that their
coverage of the trial is fair, just, and in accordance with the law.

All in all, I think that freedom of speech, of the press, and the public's right to information,
and the rights of the accused don’t necessarily contradict each other. None of these
rights have to be sacrificed or given more favor than the other in dealing with cases of
prejudicial publicity. With the advancement of media technology, safeguards can be put
in place in order to cater to the press and the public’s requests for live coverage of trials
without violating the rights of the accused. Media, especially, should serve both purposes
and serve the public’s right to know while protecting the rights of the accused.