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Sub judice

Sub judice. The first thing I’d like to know is, why is it in Latin? An ancient, forgotten language that I had to learn (and promptly forgot) at school but no one else subsequently has. It’s not the only phrase in Latin in the law, there are a number of others. Why? I counted 30 in a casual review. “Ignorantia legis non excusat” — ignorance of the law excuses no one. Well, when it’s in Latin, I am ignorant, so I have every right to be excused. Surely, law in all its ramifications should be simple to understand by the public who have to abide by it. For sub judice, “under consideration” will do just fine, and we’ll all understand it.

More importantly, why does sub judice exist at all? Why can’t I publicly discuss a case that’s in court? That’s when it’s of most public interest. We want to know what’s happening, and what commentators think about it.

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I presume the rationale is that commenting on a case could influence those responsible for making a decision on it. Perhaps, and I emphasize “perhaps,” where there’s a jury system, we might need to protect the jury who are just ordinary people possibly susceptible to influence. Perhaps. But here where it’s only a judge or a panel who decides, are we saying our judges can be influenced by public discourse?

That doesn’t speak well of our judges, does it? I believe they are intelligent, highly educated people who are more than capable of evaluating offered opinion and their applicability to a case they are considering.

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My good friend Santi Dumlao detailed it well. Let me quote him: “Indeed, the sub judice injunction denigrates the intelligence of the judge. The judge is trained in the law, in the appreciation of facts, and by his/her experience in the bench, he/she acquires the faculty of sharp discernment. An open public discussion, if allowed, would bring forth a variety of perspectives that would enrich the judge’s way of understanding the multifaceted issues arising from a case, especially the complex ones.

“The court does ask the opposing litigants to submit their differing comments to help him make a decision. Sometimes amicus curiae (there we go again, ‘friends of the court’ would do just fine) are invited to add their opinions. So, why restrain the friends of the court that are the public? We should be more trusting of our judges and their sworn duty to be independent and fair.

“Our system of collegiality in decision-making in the higher courts safeguards, in a way, any ‘outside influence’ of public discussion.

“The marketplace of competing ideas should be a welcome influence rather than a dreaded influence. In fact, the adversarial nature of judicial proceedings promotes the competition of opinions to better bring out the truth and the rightful decision.”

As it now stands, judges listen to two opinions, opinions that are highly biased and can, therefore, be questioned and certainly should be. The prosecution and the defense are out to win the case. Seeking the truth is secondary to their goal. Listening to others should not hurt the objectivity and independence of a judge. It even helps by giving them a wider range of points and facts to consider. I suppose one risk we face of eliminating sub judice rules is that a defendant or complainant could employ social media mercenaries and trolls to flood the news with a biased position. But I think a judge could pretty easily discern that. That’s actually something the state needs to look into, not only here but worldwide: how to remove trolls from the internet.

Doesn’t sub judice infringe on our constitutional right to freedom of speech? The Constitution says: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.” That seems clear enough to me. We have the right to freedom of speech, no one can transgress it. Being unable to openly discuss an issue that is “under consideration” by the court surely does transgress our right to free speech. Maybe the Supreme Court would like to weigh in on this and issue a ruling that freedom to talk overrides efforts to restrict it. It’s time for sub judice to go. And Latin to follow.

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