THE sub judice rule exists for a legitimate reason. It protects the administration of justice from improper external pressure and ensures that judges decide according to the evidence and the law, rather than narratives manufactured in public or amplified by powerful interests.
An impeachment trial, however, is not an ordinary judicial proceeding. It is a constitutional mechanism of political accountability. While it adopts some judicial rituals and procedures, it cannot be treated as simply another criminal case being heard by a regular court.
The Constitution assigns the power to try impeachment cases not to the judiciary but exclusively to the Senate. Senators sit as judges, but they remain elected political representatives. The Senate becomes an impeachment court, but it does not transform itself into a branch of the judiciary.
This is why the Senate has its own rules. The Rules of Court apply only suppletorily and whenever appropriate. They may fill procedural gaps, but they cannot erase the constitutional and political character of impeachment.
The same principle should apply to sub judice.
Senator-judges must evaluate the evidence, respect due process, and render impartial justice. They are also expected to refrain from publicly commenting on the merits. As decision-makers, their statements may reveal prejudgment, compromise the appearance of impartiality, or suggest that their votes have already been decided.
The Senate’s impeachment rules recognize this responsibility. They require the presiding officer and members of the Senate to refrain from making public comments and disclosures concerning the merits of a pending impeachment trial.
But this restriction specifically addresses senator-judges. It should not automatically be extended to the House prosecutors, the private prosecutors under their supervision, the defense panel, or the respondent.
The distinction is crucial. Senators are adjudicators. Prosecutors and defense lawyers are advocates. The respondent is the official whose conduct and fitness for office are being judged. They occupy fundamentally different positions and cannot reasonably be subjected to identical standards of silence.
The House prosecutors represent the institutional judgment of the House that an impeachable official must be called to account. Private prosecutors assist them under their supervision. Their function is not merely to present evidence but also to explain and defend the public case for accountability.
The defense panel has an equally legitimate right to challenge the accusations, correct what it considers misleading claims, explain its legal arguments, and defend its client before the public.
The respondent likewise cannot be ordered into absolute silence. An impeachable official does not lose the freedom to deny the charges, explain official actions, or criticize what he or she considers an abusive or politically motivated prosecution.
This becomes even more apparent in the age of social media. An impeachment trial is no longer experienced only by those inside the Senate chamber. It is aired live. Citizens watch the testimony, objections, rulings, arguments and behavior of the participants in real time. Video clips are immediately uploaded, edited, analyzed, and debated across multiple platforms.
The trial therefore unfolds simultaneously inside the Senate and in the broader public sphere. The official livestream invites citizens to witness and evaluate the proceedings. Once the State opens the trial to live public viewing, it becomes unreasonable to demand that the parties behave as if it were taking place inside a sealed courtroom isolated from public discourse.
The prosecution, defense and respondent will inevitably be asked to explain what happened during each hearing. Journalists will seek clarification. Lawyers and commentators will analyze the evidence. The parties will respond when they believe their positions have been misrepresented.
Their commentaries cannot be strictly bounded without preventing them from performing their roles as advocates in a publicly televised political trial.
This does not give them unlimited freedom. Prosecutors, defense lawyers and the respondent remain subject to professional ethics, lawful orders, and prohibitions against obstruction, intimidation, deception, and manipulation of evidence. Lawyers must not knowingly spread falsehoods, coach witnesses through public statements, disclose protected information, or attempt to corrupt the proceedings.
But these limitations address specific misconduct. They are not equivalent to a sweeping prohibition against discussing the merits.
Applying the same rule to adjudicators and advocates would be incoherent. Senator-judges must keep an open mind because they will render the verdict. Prosecutors and defense lawyers are not expected to be neutral. Their function is to advance and defend opposing positions. The respondent is entitled to answer accusations that threaten removal and possible disqualification from office.
Only the senator-judges, therefore, may properly be covered by the prohibition against public commentary on the merits. Other participants may be regulated against actual abuses, but they cannot be subjected to the same obligation of silence.
The public must also remain free to discuss the evidence. Journalists must be able to report and analyze the proceedings. Academics and lawyers must be allowed to explain legal and constitutional issues. Political commentators and civil society organizations must remain free to criticize arguments, take positions and demand accountability.
Public discussion is not necessarily interference. Criticism is not automatically intimidation. Explaining a rule of evidence is not obstruction of justice. Expressing an opinion about a prosecution or defense theory does not by itself corrupt the proceedings.
Otherwise, sub judice can become a weapon of selective silencing. Those wishing to avoid scrutiny can invoke it against their critics while their allies continue shaping public opinion through interviews, press statements, and social media. If silence is demanded only from one side, sub judice ceases to protect justice and begins to protect political advantage.
The appropriate standard is not absolute silence but responsible public advocacy. The Senate may punish actual contempt, protect witnesses, and prevent the fabrication or suppression of evidence. But restrictions must be narrowly defined and directed against demonstrable interference, not merely against speech that one party finds inconvenient.
Impeachment is legal, constitutional, political and public. Senator-judges must exercise restraint because they will render the verdict. The advocates and the respondent must be allowed to make their cases, not only before the Senate but also before the sovereign people watching in real time and in whose name the proceeding is being conducted.
The author is a professor at the University of the Philippines Los Baños and vice chairman of the board of People’s Television Network, Inc. (PTVNI).
