Professional ethics and matters subjudice: the limits of public commentary

The law and theory of subjudice in many climes is tied inextricably to the derogation to right to freedom of expression and press. Section 39 (1) of the constitution of the Federal Republic of Nigeria 1999, as altered, provides that “Every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and impart ideas, and information without interference.

Section 39 (3) however provides that nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society (a) For the purpose of maintaining the authority and independence of courts.

Subjudice as a legal principle is a derogation from the right to freedom of expression guaranteed by the constitution. For purpose of maintaining the authority and independence of the court, matters before the court should be freed from comments likely to prejudice the
determination of the case.

Gilbert pocket size law dictionary simply defined the term Subjudice “as before a court, for its consideration”. A more expansive definition is captured by Google, the largest search engine. Accordingly, it states that “The Subjudice rule is a rule of court, a statutory rule, a parliamentary convention and a practice that has developed in the interaction between the media and public officials. At its most basic, subjudice prohibits the publication of statements which may prejudice court proceedings”

The principle of subjudice as a result of its variegated forms and vague nature has meant different things to different people at different times. The subjudice rule in some instance is considered as part of the law of contempt of court, specifically exfacie contempt, which refers to contemptuous acts committed outside the courtroom.

Wikipedia, the online encyclopaedia also defines the term subjudice as follows: “In law, subjudice, latin for “under judgment” means that a particular case or matter is under trial or being considered by a judge or court. The term may be used synonymously
with the “present case” or “ the case at bar” by some lawyers.

Public Commentary
In recent times, it is common place for lawyers, especially senior lawyers to be seen commenting on matters that they are handling in court. I cannot claim to be an exception . But I have also seen some senior lawyers resist this temptation of commenting in any form whatsoever.

In all honesty, there appears to be no justification whatsoever for counsel to comment in a manner that is prejudicial to the case he is handling and by so doing commit contempt of court. Flowing from this is the fact that some judicial correspondents are lawyers who are capable of distilling and making informed comments from matters in court. To hide behind lawyers to achieve what they cannot attempt on their own is a big disservice to the legal profession and great disrespect to the bench.

Rules 33 of rules of professional conduct 2007 provides succinctly “That a lawyer or law firm engaged in or associated with the prosecution or defence of a criminal matter or associated with a civil action shall not, while litigation is anticipated or pending in the matter, make or participate in making any exra-judicial statement that is

calculated to prejudice or interfere with, or is reasonably capably of prejudicing or interfering with fair trial of the matter or the judgment or sentence therein.
Analysis of Rule 33 Rule 33 does not expressly forbid all extra judicial statements but frowns at extra judicial statement that is calculated to prejudice or interfere with, or is reasonably capable of prejudicing or interfering with fair trial of the matter or the judgement.

My humble opinion is that counsel appearing on television to comment on a matter in court may in attempt to protect the interest of his client make statements that are reasonably capable of prejudicing or interfering with fair trial. The limits of public commentary therefore is to determine at all times whether or not the comment on television or to the media is capable of prejudicing or interfering with fair trial.

In Bello Vag Lagos, 2007, the court of Appeal, Lagos Division held as follows: “Comments on pending legal proceedings which purport to prejudge the issues, which are to be tried by the court are intrinsically objectionable as constituting an usurpation of the proper function of the court (tribunal). This may be published or restrained as a contempt irrespective of the effect or the likely effect on the particular proceedings in question. Anything in the nature of prejudging of a case or of specific issues is objectionable not only because of its possible effect on the particular case but also because of its side effects which may be far reaching. Trial by newspapers, television and other medium other than court is not only unacceptable but also objectionable.”

Still on the limits of public commentary,other common law jurisdictions have made far reaching contributions in developing the jurisprudence on prejudicial information. In 1974, the Quebec court of Appeal in Canada ruled on the case of Regina v Carocchia, in which the court held that “the truth of the published fact is not a defence against an accusation of contempt of court”

Although the truth of a prejudicial statement will not save it, the press has the right to report fairly and accurately on both criminal and civil actions. In determining the limits of public commentary, the Canadian case of Ontario (Residential Tenancy Commission) v Toronto Apartment Buildings Co (1983), the court found that where a lawyer had provided clarification to the press about a case, the lawyer was not in contempt as he had not disclosed “nothing that was not in the court proceeding.”

Another Canadian case of Bellitti v Canadian Broadcasting Corp (1973) seem to summarise the limits of public commentary, when the ability of the press to report factually on court proceedings was reaffirmed. The court stated as follows: “Only when publication or broadcast departs from factual reporting and expresses comments or opinions and those comments or opinions interfere with the administration of justice or prejudice a fair trial that the broadcast or publication will constitute contempt of court.

Acceptable/Inappropriate Commentary
There is certainly a thin line of divide between acceptable commentary and inappropriate commentary. More often than not, counsel proceeds from the premise of standing within the bounds of acceptable commentary and without realising what he is saying he veers off to inappropriate commentary. Besides, it is difficult for two lawyers on both sides of the adversarial contest to agree on issues for public consumption. What this means is that the media journalists use their tool of trade to get lawyers to move out of the realms of acceptable commentary by interviewing them one after the other.

In this context, public commentary becomes a marketing strategy of convincing your client and the general public that you are on top of your game and there is light afterwards at the end of the tunnel.

Monitoring And Compliance Enforcement
Rule 33, in my opinion is persistently and fragrantly abused because the NBA and its organs have not made it a serious issue worthy of its time. By this non-chalant attitude, counsel are indirectly emboldened to go ahead with inappropriate commentaries on matters subjudice.

Before highlighting what the NBA can do, it is pertinent to state that the judiciary should also openly denounce this attitude of counsel. By denouncing same, Judges will be sending a message that counsel can be cited for contempt of court ex facie, if the opposing counsel or any officer of the NBA or legal practitioner as friend of court produces a video recording of counsel commenting on a matter subjudice. Based on such evidence, the court can proceed to sanction counsel as appropriate.

The disciplinary committee of the NBA should step up its game in this regard. Unfortunately, I have seen members of the disciplinary committee indulging in this anomaly.
However, I have also been present where a member of the disciplinary committee rejected all entreaties to speak to the media during election petition trial. According to him, it will be the height of indiscretion to be found engaging in this contemptible conduct.

The Challenge of senior lawyers engaging in this despicable conduct is that it has serious mentoring implication on junior counsel. Many young lawyers now see it as acceptable pattern of legal practice. Indeed some senior lawyers delegate the assignment to their juniors in chambers.

My position is that as NBA has election monitoring outlet, so shall there be a media monitoring unit to mornitor and identify counsel breaching the articles of Rule 33. All names collected shall be forwarded to the NBA with date, nature of misconduct etc and then
from the NBA to the disciplinary committee.