Dear Corruption Watch: It seems the ace in every politician's hand is the sub judice rule, which somehow makes difficult questions go away. What does sub judice mean, and why are these words so powerful? - Latin illiterateDear Latin illiterate,Sub judice is a Latin expression meaning "under judgment". The power in these words is illusory.The sub judice rule is an extension of the common law rule that the proper administration of justice may not be prejudiced or interfered with.story_article_left1Traditionally, it prescribed that publications or statements that prejudiced the administration of justice in pending proceedings were in contempt of court. However, the effect of the rule has been significantly curtailed by the Supreme Court of Appeal.Politicians are, understandably, fond of the sub judice rule because it gives the appearance of legitimacy to their refusal to answer questions relating to pending legal proceedings. Recently, the rule was invoked to shield Danny Jordaan and Molefi Oliphant from answering to parliament for the Fifa bribery allegations. It was also used to get Cyril Ramaphosa off the hook when he was asked to explain the mysterious departure of Sudanese President Omar al-Bashir in breach of a court order.But the rule, in its strict form, does not fit well in a legal system like ours. It makes more sense in jurisdictions that employ juries and where jurors may be influenced by the opinions they hear and read outside the courtroom. Judges, however, are more adept at excluding such influences.In a constitutional democracy, competing rights must be weighed and balanced against each other. In the present example, it is the right to a fair trial (as protected by the sub judice rule) that must be balanced with the right to freedom of expression.story_article_right2In the case of Midi Television v Director of Public Prosecutions (Western Cape), the appeal court realigned the contours of the sub judice rule to ensure that it did not excessively impinge on the right to freedom of expression. It said that a publication would be unlawful only "if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place".In addition, a court would have to be satisfied that the disadvantage of limiting the free flow of information outweighed the advantage. The court said that, in assessing this, the interests of the public, which has access to the published information, as well as the interests of the publishers, must be taken into account.This puts a fairly onerous burden on anyone wishing to invoke the sub judice rule. It is not the panacea so many politicians seem to believe it is.In the case of Bashir, it is difficult to imagine how any prejudice to legal proceedings would arise out of Ramaphosa answering questions on the matter. And even if it did, it would surely not outweigh the prejudice that would be done to the public's right to information by refusing to answer such questions.You are therefore right to be sceptical of this rule and its use by those in positions of power. There is nothing absolute or inviolable about the words "sub judice".Do you face an ethical dilemma? Do you suspect corruption? If you need help to resolve such issues, write to the Corruption Watch experts at letters@businesstimes.co.za. Mark your letter ‘Dear Corruption Watch’..