THE sub judice rule exists to protect the administration of justice. It prevents parties, lawyers, witnesses and the public from creating pressures that could prejudice a pending proceeding. It guards against prejudgment, distortion of evidence and attempts to influence those tasked with rendering judgment.
What it should never become is a weapon selectively used against one side.
This issue surfaced after defense counsel Sheila Sison called the impeachment court’s attention to a social media post by private prosecutor Amando Virgil Ligutan, who said, “A principle all lawyers and law students know by heart: Misleading questions are not allowed even on cross-examination.”
Ligutan did not name Vice President Sara Duterte, any counsel, witness or senator-judge. He did not discuss guilt, innocence, evidence or credibility. He stated a general rule of evidence.
The timing invited people to connect it to the heated exchange between private prosecutor Lorna Kapunan and defense counsel Kristine Ferrer. But context does not automatically transform a general legal statement into an improper attempt to influence a tribunal.
Presiding Senator-Judge Francis Escudero nevertheless cautioned the prosecution against crossing the line. Lead prosecutor Gerville Luistro responded with an important point: If commentary concerning the trial is going to be restricted, the standard cannot apply only to prosecutors. It must apply consistently.
If we are truly worried about extrajudicial statements affecting the impeachment trial, why begin with Ligutan?
Sara Duterte has hardly been a passive respondent quietly awaiting judgment. She has repeatedly taken her defense outside the impeachment court, publicly attacking the proceedings and portraying the impeachment as politically motivated and illegitimate.
She has every right to defend herself politically. Impeachment is both a constitutional and political process, and she retains her freedom of speech.
If Duterte may publicly attack the process, question the motives of those prosecuting her and construct a political narrative around the charges, it becomes difficult to justify an extraordinarily restrictive interpretation of sub judice when a prosecution lawyer merely states a general proposition of law.
Which has greater capacity to shape public opinion: Ligutan saying misleading questions are prohibited, or the vice president publicly questioning the legitimacy of the process deciding her fate?
Which is more likely to generate political pressure surrounding senator-judges?
This does not mean every statement Duterte makes violates the sub judice rule. That would be equally excessive. Public officials do not lose their freedom of speech simply because proceedings have been initiated against them.
But the same caution must apply in the other direction. If attacks against the impeachment process by the respondent can coexist with the proceedings, statements about general legal principles by prosecution lawyers cannot suddenly become dangerous simply because the defense dislikes their timing.
The inconsistency becomes even more pronounced when we consider senator-judges themselves.
Sen. Pia Cayetano shared an edited video involving prosecutor Chel Diokno that removed context and altered how his statement could be understood. Whatever her intention, a senator-judge circulating material that negatively portrays one side raises a more serious concern about perceived impartiality than Ligutan stating an evidentiary rule.
Senators Robinhood Padilla, Imee Marcos and Alan Peter Cayetano have also made interventions that, at times, sounded less like neutral clarification and more like arguments that could have been advanced by the defense. Senators Raffy Tulfo and Panfilo Lacson have argued with or scolded witnesses. Lacson even criticized a Commission on Audit witness over how auditors performed their jobs.
These may not technically constitute sub judice violations because they occurred within the proceedings. But they implicate something even more fundamental: the duty of senator-judges to maintain impartiality.
And therein lies the absurdity of selectively invoking sub judice.
We worry that a lawyer’s Facebook post explaining a rule of evidence might influence senator-judges while tolerating senator-judges themselves publicly displaying attitudes toward parties, lawyers, witnesses and evidence.
We worry about prosecutors influencing the tribunal while paying less attention to the respondent’s sustained effort to influence the political environment surrounding it.
Prosecution lawyers should exercise restraint. They should not try the case through Facebook or media interviews, disclose unpresented evidence, attack witnesses or mobilize public pressure upon senator-judges.
The defense should observe precisely the same restraint.
And if the respondent herself is permitted broad latitude to politically characterize the impeachment proceedings that reality must inform how sub judice is applied to everyone else.
Most importantly, senator-judges should impose an even higher standard upon themselves. They are neither prosecutors nor defense lawyers. They have taken an oath to render impartial justice. When they share distorted material, appear to adopt one side’s arguments, berate witnesses or publicly signal how they view the case, they risk undermining confidence in the institution over which they preside.
This is why Luistro’s intervention matters. She was not demanding that senator-judges remain silent. They obviously must ask questions, rule on objections, deliberate and eventually explain their votes.
The question is whether Escudero intends to establish a principled standard or merely police the prosecution.
If sub judice means protecting the integrity of the impeachment process, then the inquiry cannot begin and end with Ligutan. It must include the defense, the conduct of senator-judges and, yes, Sara Duterte herself.
Indeed, Duterte’s public attacks on the impeachment process make the Ligutan controversy look strangely misplaced. Whatever one thinks of her criticisms, they are far more directly connected to the pending proceedings than Ligutan’s abstract statement about misleading questions. They concern the impeachment, its legitimacy and the political motivations she attributes to those behind it.
But rights and standards must operate consistently.
The sub judice rule should protect proceedings, not insulate senator-judges from scrutiny. It should preserve fairness, not manufacture selective silence. It certainly should not become an instrument through which the respondent may publicly attack the process while those prosecuting her are warned against even explaining the law.
If Escudero intends to draw a line, then draw it clearly. And once drawn, apply it to everyone.
Otherwise, sub judice ceases to protect justice and becomes a tool for controlling who gets to speak.
Justice cannot demand restraint selectively.
Antonio P. Contreras is a professor at the University of the Philippines Los Baños School of Environmental Science and Management, and vice chairman of the board of the People’s Television Network Inc.