On impeachment surveys and Sen. Miriam Santiago

Edsel Tupaz
Is Sen. Santiago's threat to punish for contempt those who disseminate a form of public opinion, in and of itself constitutionally permissible?

EDSEL TUPAZSenator Miriam Defensor-Santiago is poised to move to cite for contempt public opinion poll makers Pulse Asia and the Social Weather Station for conducting their March surveys asking respondents to give their take on the guilt or innocence of the accused in the ongoing impeachment trial.  

The accused, as one would know, is no less than the sitting Chief Justice of the Philippines. Pulse Asia would have a guilty verdict at 47%, and SWS, at a whopping 73%. Surely these numbers are of no small matter.

The first thing one ought to ask is, is the good Senator’s threat to punish for contempt those who disseminate a form of public opinion, in and of itself constitutionally permissible? Should the Senate, sitting as the Impeachment Court -– assuming Miriam’s order is adopted through a caucus vote, which is unlikely — proceed with censoring opinion poll makers and their dissemination via mass media? What could be Miriam’s very own motives for making such a threat?

Reputably the ‘legal luminary,’ ‘national treasure,’ and ‘constitutional expert’ that she is, one could assume that she knows her law, and knows that law very well. Let’s start with Senate Bill No. 1357 which she authored in 2007.

That bill is entitled the “Judicial Right to Know Act.” Her bill seeks to treat court orders, writs, and injunctions which prohibit media reports and commentaries of court proceedings as “invalid.” “The sub judice rule,” says the Senator in her Explanatory Note of the bill, “must be acknowledged by Philippine courts as an impermissible incursion on the salutary constitutional precept that discussion of public affairs in a free society cannot depend on the preliminary grace of judicial censors. Hence, this bill provides for the elimination of the sub judice rule.”
   
If we go by her legislative disposition, Senator Miriam can be a bit of an inconsistency. (But this should come as no surprise.)  Like any rule of law, as always there are, indeed, exceptions. 

The exceptions to prior restraints of speech under US and Philippine law do point to extraordinary and exigent circumstances such as war or insurrection. Another example would be obscenity, or obscene speech. In both these cases the state, acting through appropriate bodies, could issue gag orders and make prior restraints – in a word, censorship – against speech and press freedom. 

A strain of free speech restriction – sub judice – would point to the test of whether the circumstances of the courtroom would all combine to so inflame lay jury’s minds against the accused as to deny him a fair trial under the Sixth Amendment.

There is no question that Chief Justice Renato Corona is facing hard, trying times, but does his political and professional fate rise to the level of an existential threat to national security and survival?  Will the outcome of the impeachment, guilt or innocence, affect the security of Philippine society in ways similar to the effects of incitements to violence and overthrow of governments by force? 

And, on the point of sub judice, are our Senator-jurors really so easily susceptible to propaganda – if surveys can be deemed as such – as to be unable to discern the legitimacy of an incidence of public pulse?

Never mind that the good Senator is trying to pass legislation phasing out sub judice against the press. But a few points are in order.

Gag order

The first is that a gag order against public surveys will be a gag order against mass media.  

Gag orders, here and in the US, are ‘presumptively unconstitutional,’ and the proponent of any such restriction on speech bears a heavy burden to show a legitimate and compelling state interest and that no less speech-restrictive alternatives are available to regulate that speech.  

As a matter of fact, our own Supreme Court has held, and held rightly, that a statute prohibiting the publication of surveys “affecting” candidates both national and local is unconstitutional because it unduly abridges the freedom of speech, of expression, and of the press within the meaning of our Bill of Rights.  

In a leading case penned by Justice Mendoza, the Supreme Court held in no uncertain terms that the provision under the Fair Election Act (R.A. 9006, § 5.4 ) prohibiting the publication of surveys “affecting” candidates is unconstitutional within the meaning of Section 4, Art. III of the Bill of Rights.   

In particular, Social Weather Stations v. Comelec,  the Court held that as prior restraint, § 5.4 is presumed to be invalid. It found unconvincing the argument that such publication of election surveys might possibly undermine the integrity of the election. “The constitutional guarantee of freedom of expression,” the Court stated, means that “the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

In another case, the Supreme Court struck down a local ordinance unconstitutional because it observed that the real purpose of that ordinance was to silence the station which had been a strong critic of the local administration.
 
Under our legal system, the pronouncements of our Supreme Court are deemed to be “law” in the level of statute, even at the level of the Constitution if the object of interpretation is the Constitution. (The only remedy against a bad Supreme Court decision in that case, therefore, would be to amend the Constitution.)  

If national election surveys, even in real-time, are allowed, why should opinion polls about the guilt or innocence of an impeached official, chief justice or not, be treated as so sensitive as to rise above the gravity of national election surveys as to have them silenced?

Political vs judicial process

The second point is that proponents of any gag order against impeachment surveys will face an uphill struggle with three questions:
(1) whether sub judice can be invoked in an impeachment proceeding, which is inherently a political process and is not a judicial proceeding where sub judice applies
(2) whether Senator-jurors can be considered as ordinary jurors within the meaning of the sub judice rule
(3) whether the media at large are indeed covered by the sub judice rule.  

A review of US and Philippine case law would tend to show that the answers are a “No.”  

And, assuming that sub judice is applicable to impeachment trials, still US and Philippine courts tend to distinguish between attorney speech involved in the (criminal) case and speech made by the press. US courts are noticeably stricter in regulating speech uttered by counsel, defense and prosecution alike, and more liberal with the media. (It has been opined by judges and jurists alike that restrictions on attorney speech would not be constitutionally permissible against the press.)
 
Regardless of threats of contempt, impeachment surveys will likely continue.  

In fact, Senator Miriam and her colleagues should have every reason to celebrate – the very same surveys show that the legitimacy and respectworthy-ness of the Senate sitting as the Impeachment Court are at an all-time high and that the great majority of the public will abide by its verdict.   

Edsel Tupaz is a private prosecutor of the House prosecution panel in the impeachment trial of Philippine Chief Justice Renato Corona. He is a graduate of Harvard Law School and Ateneo Law School. Tupaz is a public interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines.

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