RIGHTS OF THE ACCUSED UNDER CUSTODIAL INVESTIGATION

REPUBLIC ACT NO. 7438

April 27, 1992
AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER
CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND
INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF.
Section 1. Statement of Policy. - It is the policy of the Senate to value the dignity of every human
being and guarantee full respect for human rights.
Sec. 2. Rights of Persons Arrested, Detained or under Custodial Investigation; Duties of Public Officers.
- (a) Any person arrested detained or under custodial investigation shall at all times be assisted by
counsel.
(b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains
or investigates any person for the commission of an offense shall inform the latter, in a language
known to and understood by him, of his rights to remain silent and to have competent and
independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately
with the person arrested, detained or under custodial investigation. If such person cannot afford the
services of his own counsel, he must be provided with a competent and independent counsel by the
investigating officer.
(c) The custodial investigation report shall be reduced to writing by the investigating officer, provided
that before such report is signed, or thumbmarked if the person arrested or detained does not know
how to read and write, it shall be read and adequately explained to him by his counsel or by the
assisting counsel provided by the investigating officer in the language or dialect known to such
arrested or detained person, otherwise, such investigation report shall be null and void and of no
effect whatsoever.
(d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation
shall be in writing and signed by such person in the presence of his counsel or in the latter's absence,
upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse,
the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel
as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any
proceeding.
(e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised
Penal Code, or under custodial investigation, shall be in writing and signed by such person in the
presence of his counsel; otherwise the waiver shall be null and void and of no effect.
(f) Any person arrested or detained or under custodial investigation shall be allowed visits by or
conferences with any member of his immediate family, or any medical doctor or priest or religious
minister chosen by him or by any member of his immediate family or by his counsel, or by any
national non-governmental organization duly accredited by the Commission on Human Rights of by
any international non-governmental organization duly accredited by the Office of the President. The
person's "immediate family" shall include his or her spouse, fiance or fiancee, parent or child, brother
or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.
As used this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a
person who is investigated in connection with an offense he is suspected to have committed, without
prejudice to the liability of the "inviting" officer for any violation of law.
Sec. 3. Assisting Counsel. - Assisting counsel is any lawyer, except those directly affected by the case,
those charged with conducting preliminary investigation or those charged with the prosecution of
crimes.
The assisting counsel other than the government lawyers shall be entitled to the following fees:
(a) The amount of One hundred fifty pesos (P150.00) if the suspected person is chargeable with light
felonies;
(b) The amount of Two hundred fifty pesos (P250.00) if the suspected person is chargeable with less
grave of grave felonies;

(c) The amount of Three hundred fifty pesos (P350.00) if the suspected person is chargeable with a
capital offense.
The fee for the assisting counsel shall be paid by the city or municipality where the custodial
investigation is conducted, provided that if the municipality of city cannot pay such fee, the province
comprising such municipality or city shall pay the fee: Provided, That the Municipal of City Treasurer
must certify that no funds are available to pay the fees of assisting counsel before the province pays
said fees.
In the absence of any lawyer, no custodial investigation shall be conducted and the suspected person
can only be detained by the investigating officer in accordance with the provisions of Article 125 of the
Revised Penal Code.
Sec. 4. Penalty Clause. - (a) Any arresting public officer of employee, or any investigating officer, who
fails to inform any person arrested, detained or under custodial investigation of his right to remain
silent and to have competent and independent counsel preferably of his own choice, shall suffer a fine
of Six thousand pesos (P6,000.00) or a penalty of imprisonment of not less than eight (8) years but not
more than ten (10) years, or both. The penalty of perpetual absolute disqualification shall also be
imposed upon the investigating officer who has been previously convicted of a similar offense.
The same penalties shall be imposed upon a officer or employee or anyone acting upon orders of such
investigating officer or in his place, who fails to provide a competent and independent counsel to a
person arrested, detained or under custodial investigation for the commission of an offense if the
latter cannot afford the services of his own counsel.
(b) Any person who obstruct, persons or prohibits any lawyer, any member of the immediate family of
a person arrested, detained or under custodial investigation, or any medical doctor or priest or
religious minister chosen by him or by any member of his immediate family or by his counsel, from
visiting and conferring privately with him, of from examining and treating him, or from ministering to
his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand
pesos (P4,000.00).
The provisions of the above Section notwithstanding, any security officer with custodial responsibility
over any detainee or prisoner may undertake such reasonable measures as may be necessary to
secure his safety and prevent his escape.
Sec. 5. Repealing Clause. - Republic Act No. No. 857, as amended, is hereby repealed. Other laws,
presidential decrees, executive orders or rules and regulations, or parts thereof inconsistent with the
provisions of this Act are repealed or modified accordingly.
Sec. 6. Effectivity. - This Act shall take effect fifteen (15) days following its publication in the Official
Gazette or in any daily newspapers of general circulation in the Philippines.
Approved: April 27, 1992
Rights of a Person under Custodial Investigation
If ever youre arrested, here are a couple of things to keep in mind:
Enshrined under Section 12, Article III of the 1987 Constitution are the following rights:
Section 12. (1) Any person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall
be used against him. Secret detention places, solitary, incommunicado, or other similar forms of
detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible
in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their families.

In the case of Morales, Jr. vs. Enrile, et al., the Supreme Court laid down the procedure to be
followed in custodial investigations, to wit:
At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the
reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his
constitutional rights to remain silent and to counsel, and that any statement he might make could be
used against him. The person arrested shall have the right to communicate with his lawyer, a relative,
or anyone he chooses by the most expedient means _ by telephone if possible _ or by letter or
messenger. It shall be the duty of the arresting officer to see to it that this is accomplished. No
custodial investigation shall be conducted unless it be in the presence of counsel engaged by the
person arrested, by any person on his behalf, or appointed by the court upon petition either of the
detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall
not be valid unless made with the assistance of counsel. Any statement obtained in violation of the
procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be
inadmissible in evidence.
In addition, in the case of People vs Marra, et.al., the Supreme Court defined the meaning of
custodial investigation, It held that:
Custodial investigation involves any questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is
only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus
on a particular suspect, the suspect is taken into custody, and the police carries out a process of
interrogations that lends itself to eliciting incriminating statements that the rule begins to operate.
Also, in People vs Camat, et.al., the Court held further that:
As interpreted in the jurisdiction of their origin, these rights begin to be available where the
investigation is no longer a general inquiry into an unsolved crime but has began to focus on a
particular suspect, the suspect has been taken into police custody, and the police carry out a process
of interrogation that lends itself to eliciting incriminating statements.
G.R. Nos. L-37201-02

March 3, 1975

CLEMENTE MAGTOTO, petitioner,

vs.
HON. MIGUEL M. MANGUERA, Judge of the Court of First Instance (Branch II) of Occidental
Mindoro, The PEOPLE OF THE PHILIPPINES, IGNACIO CALARA, JR., and LOURDES CALARA,
respondents.
G.R. No. L-37424 March 3, 1975
MAXIMO SIMEON, LOUIS MEDNATT, INOCENTES DE LUNA, RUBEN MIRANDA, ALFONSO
BALLESTEROS, RUDOLFO SUAREZ, MANUEL MANALO, ALBERTO GABION, and RAFAEL BRILL,
petitioners,
vs.
HON. ONOFRE A. VILLALUZ, in his capacity as Judge of the Criminal Circuit Court of Pasig, Rizal, and
PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. L-38929 March 3, 1975
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HONORABLE ASAALI S. ISNANI, District Judge of the Court of First Instance of Zamboanga
del Sur, Branch II, VICENTE LONGAKIT, and JAIME DALION, respondents.
Felipe S. Abeleda for petitioner Clemente Magtoto.
Joaquin L. Misa for petitioners Maximo Simeon, et al.
Alan L. Roxas for respondents Ignacio Calara, Jr., et al.
Organo Law Office for respondent Vicente Longakit, et al.
Office of the Solicitor General Estelito P. Mendoza and Assistant Solicitor General Vicente V.
Mendoza for respondent and petitioner People of the Philippines.
FERNANDEZ, J.

The present cases involve an interpretation of Section 20, Article IV of the New Constitution, which
reads:t.hqw
No person shall be compelled to be a witness against himself. Any person under investigation for the
commission of an offense shall have the right to remain silent and to counsel, and to be informed of
such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall
be used against him. Any confession obtained in violation of this section shall be inadmissible in
evidence,
and specifically, the portion thereof which declares inadmissible a confession obtained from a person
under investigation for the commission of an offense who has not been informed of his right (to remain
silent and) to counsel. 1
We hold that this specific portion of this constitutional mandate has and should be given a prospective
and not a retrospective effect. Consequently, a confession obtained from a person under investigation
for the commission of an offense, who has not been informed of his right (to silence and) to counsel, is
inadmissible in evidence if the same had been obtained after the effectivity of the New Constitution on
January 17, 1973. Conversely, such confession is admissible in evidence against the accused, if the
same had been obtained before the effectivity of the New Constitution, even if presented after January
17, 1973, and even if he had not been informed of his right to counsel, since no law gave the accused
the right to be so informed before that date.
Accordingly, We hereby sustain the orders of the respondent Judges in G.R. No.
L-37201-02 2 and G.R. No. L-37424 3 declaring admissible the confessions of the accused in said
cases, and We hereby set aside the order of the respondent Judge challenged in G.R. No. L-38929 4
which declared inadmissible the confessions of the accused in said case, although they have not been
informed of their right to remain silent and to counsel before they gave the confessions, because they
were given before the effectivity of the New Constitution.
The reasons for these rulings are as follows:
Section 20, Article IV of the New Constitution granted, for the first time, to a person under
investigation for the commission of an offense, the right to counsel and to be informed of such right.
And the last sentence thereof which, in effect, means that any confession obtained in violation of this
right shall be inadmissible in evidence, can and should be given effect only when the right already
existed and had been violated. Consequently, because the confessions of the accused in G.R. Nos. L37201-02, 37424 and 38929 were taken before the effectivity of the New Constitution in accordance
with the rules then in force, no right had been violated as to render them inadmissible in evidence
although they were not informed of "their right to remain silent and to counsel," "and to be informed
of such right," because, We repeat, no such right existed at the time.
The argument that the second paragraph of Article 125 of the Revised Penal Code, which was added
by Republic Act No. 1083 enacted in l954, which reads as follows:t.hqw
In every case, the person detained shall be informed of the cause of his detention and shall be
allowed, upon his request, to communicate and confer at any time with his attorney or counsel.
impliedly granted to a detained person the right to counsel and to be informed of such right, is
untenable. The only right granted by said paragraph to a detained person was to be informed of the
cause of his detention. But he must make a request for him to be able to claim the right to
communicate and confer with counsel at any time.
The remark of Senator Cuenco, when Republic Act No. 1083 was being discussed in the Senate, that
the bill which became Republic Act No. 1083 provides that the detained person should be informed of
his right to counsel, was only the personal opinion of Senator Cuenco. We grant that he was, as We
personally knew him to be, a learned lawyer and senator. But his statement could reflect only his
personal opinion because if Congress had wanted Republic Act No. 1083 to grant a detained person a
right to counsel and to be informed of such right, it should have been so worded. Congress did not do
so.
As originally worded, Senate Bill No. 50, which became Republic Act No. 1083, provided: "In every case
the person detained shall be allowed, upon his request, to have the services of an attorney or counsel.
In the period of amendment, the phrase "have the services of" was changed to the present wording

"communicate and confer anytime with his." As the Solicitor General points out in his able
memorandum, apparently the purpose was to bring the provision in harmony with the provision of a
complementary measure, Republic Act No. 857 (effective July 16, 1953), which provides:t.hqw

SECTION 1. Any public officer who shall obstruct, prohibit, or otherwise prevent an attorney entitled
to practice in the courts of the Philippines from visiting and conferring privately with a person arrested,
at any hour of the day or, in urgent cases, of the night, said visit and conference being requested by
the person arrested or by another acting in his behalf, shall be punished by arresto mayor.
None of these statutes requires that police investigators inform the detained person of his "right" to
counsel. They only allow him to request to be given counsel. It is not for this Court to add a
requirement and carry on where both Congress and the President stopped.
The history behind the new right granted to a detained person by Section 20, Article IV of the New
constitution to counsel and to be informed of said right under pain of a confession taken in violation
thereof being rendered inadmissible in evidence, clearly shows the intention to give this constitutional
guaranty not a retroactive, but a prospective, effect so as to cover only confessions taken after the
effectivity of the New Constitution.
To begin with, Section 29, Rule 130 of the Rules of Court, provides:t.hqw
Confession.The declaration of an accused expressly acknowledging his guilt of the offense charged,
may be given in evidence against him.
And according to Section 3, Rule 133 of the Rules of Court:
Extrajudicial confession, not sufficient ground for conviction.An extrajudicial confession made by an
accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus
delicti.
Extrajudicial confessions of the accused in a criminal case are universally recognized as admissible in
evidence against him, based on the presumption that no one would declare anything against himself
unless such declarations were true. Accordingly, it has been held that a confession constitutes an
evidence of a high order since it is supported by the strong presumption that no person of normal
mind would deliberately and knowingly confess to a crime unless prompted by truth and conscience.
(U.S. vs. Delos Santos, 24 Phil. 329, 358).
The fundamental rule is that a confession, to be admissible, must be voluntary. And the first rule in this
connection was that before the confession could be admitted in evidence, the prosecution must first
show to the satisfaction of the Court that the same was freely and voluntarily made, as provided for in
Section 4 of Act 619 of the Philippine Commission (U.S. vs. Pascual, August 29, 1903, 2 Phil. 458). But
with the repeal of said provision of law by the Administrative Code in 1916, the burden of proof was
changed. Now, a confession is admissible in evidence without previous proof of its voluntariness on
the theory that it is presumed to be voluntary until the contrary is proved (5 Moran, Comments on the
Rules of Court, p. 264; People vs. Dorado, 30 SCRA 53, 57, citing U.S. vs. Zara, 42 Phil. 308; People vs.
Cabrera, 43 Phil. 64; People v. Singh, 45 Phil. 676; People v. Pereto, 21 SCRA 1469).
And once the accused succeeds in proving that his extrajudicial confession was made involuntarily, it
stands discredited in the eyes of the law and is as a thing which never existed. It is incompetent as
evidence and must be rejected. The defense need not prove that its contents are false (U.S. vs. Delos
Santos, 24 Phil. 329, 358; U.S. vs. Zara, 42 Phil. 325, November, 1921). The same rule was followed in
People vs. Nishishima. "Involuntary confessions are uniformly held inadmissible as evidence by
some courts on the ground that a confession so obtained is unreliable, and by some on the ground of
humanitarian principles which abhor all forms of torture or unfairness towards the accused in criminal
proceedings. ... ." (57 Phil. 26, 48, 51; 1932). 4* In the concurring opinion of Justice Butte, he said:
"Apart, from the fact that involuntary confessions will be declared incompetent and are therefore
utterly futile, it is high time to put a stop to these (third degree) practices which are a blot on our
Philippine civilization."
This rule was, however, changed by this court in 1953 in the case of People vs. Delos Santos, et al.,
G.R. No. L-4880, citing the rule in Moncado vs. People's Court, et al., 80 Phil 1, and followed in the case
of People vs. Villanueva, et al. (G.R. No. L-7472, January 31, 1956), to the effect that "a confession to
be repudiated, must not only be proved to have been obtained by force or violence or intimidation, but

also that it is false or untrue, for the law rejects the confession when by force or violence, the accused
is compelled against this will to tell a falsehood, not when by such force and violence is compelled to
tell the truth." This ruling was followed in a number of cases. 5
But the ruling in Moncado vs. People's Court et al., 80 Phil 1, which was the basis of the leading case of
People vs. Delos Santos, supra, was overruled in the case of Stonehill vs. Diokno (20 SCRA 383, June
19, 1963), holding that evidence illegally obtained is not admissible in evidence. So, We reverted to
the original rule. As stated by this Court, speaking thru Justice Teehankee in People vs. Urro (44 SCRA
473, April 27, 1972), "involuntary or coerced confessions obtained by force or intimidation are null and
void and are abhorred by law which proscribes the use of such cruel and inhuman methods to secure a
confession." "A coerced confession stands discredited in the eyes of the law and is as a thing that
never existed." The defense need not prove that its contents are false. Thus, We turned full circle and
returned to the rule originally established in the case of U.S. vs. Delos Santos, 24 Phil. 323 and People
vs. Nishishima, 42 Phil. 26. (See also People vs. Imperio, 44 SCRA 75).
It must be noted that all these Philippine cases refer to coerced confessions, whether the coercion was
physical, mental and/or emotional.
In the meantime, the United States Supreme Court decided the following cases: Massiah vs. United
States (377 U.S. 201, 1964), Escobedo vs. Illinois (378 U.S. 478, 1964); and Miranda vs. Arizona (384
U.S. 436, 1966). In Miranda vs. Arizona, it was held:t.hqw
To summarize, we hold that when an individual is taken into custody or otherwise deprived of his
freedom by the authorities in any significant way and is subjected to questioning, the privilege against
self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege
*[384 U.S. 479]* and unless other fully effective means are adopted to notify the person of his right of
silence and to assure that the exercise of the right will be scrupulously honored, the following
measures are required. He must be warned prior to any questioning that he has the right to remain
silent, that anything he says can be used against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to
any questioning if he so desires. Opportunity to exercise these rights must be afforded to him
throughout the interrogation. After such warning have been given, and such opportunity afforded him,
the individual may knowingly and intelligently waive these rights and agree to answer questions or
make statement. But unless and until such warning and waiver are demonstrated by the prosecution
at trial, no evidence obtained as a result of interrogation can be used against him. (Miranda vs.
Arizona, supra, p. 478)[Emphasis Ours]
When invoked in this jurisdiction, however, the Miranda rule was rejected by this Court. In the cases of
People vs. Jose (37 SCRA 450, February 6, 1971) and People vs. Paras 56 SCRA 248, March 29, 1974),
We rejected the rule that an extrajudicial confession given without the assistance of counsel is
inadmissible in evidence. This Court in the Jose case(as in the Paras case), held:t.hqw
The inadmissibility of his extrajudicial statements is likewise being questioned by Jose on the other
ground that he was not assisted by counsel during the custodial interrogations. He cites the decisions
of the Supreme Court of the United States in Massiah vs. U.S. (377 U.S. 201), Escobedo vs. Illinois (37
U.S. 478) and Miranda vs .Arizona (384 U.S. 436).
The provision of the Constitution of the Philippines in point is Article III (Bill of Rights), Section 1, par.
17 of which provides: "In all criminal prosecutions the accused shall ... enjoy the right to be heard by
himself and counsel ... ." While the said provision is identical to that in the Constitution of the United
States, in this jurisdiction the term criminal prosecutions was interpreted by this Court in U.S. vs.
Beechman, 23 Phil 258 (1912), in connection with a similar provision in the Philippine Bill of Rights
(Section 5 of Act of Congress of July 1, 1902), to mean proceedings before the trial court from
arraignment to rendition of the judgment. Implementing the said Constitutional provision, We have
provided in Section 1, Rule 115 of the Rules of Court that "In all criminal prosecutions the defendant
shall be entitled ... (b) to be present and defend in person and by attorney at every state of the
proceedings, that is, from the arraignment to the promulgation of the judgment." The only instances
where an accused is entitled to counsel before arraignment, if he so requests, are during the second
stage of preliminary investigation (Rule 112, Section 11) and after the arrest(Rule 113, Section 18).
The rule in the United States need not be unquestioningly adhered to in this jurisdiction, not only
because it has no binding effect here, but also because in interpreting a provision of the Constitution
the meaning attached hereto at the time of the adoption thereof should be considered. And even there
the said rule is not yet quite settled, as can be deduced from the absence of unanimity in the voting

by the members of the United States Supreme Court in all the three above-cited cases. (People vs.
Jose, supra, at page 472)
The Constitutional Convention at the time it deliberated on Section 20, Article IV of the New
Constitution was aware of the Escobedo and Miranda rule which had been rejected in the case of Jose.
That is the reason why the Miranda-Escobedo rule was expressly included as a new right granted to a
detained person in the present provision of Section 20, Article IV of the New Constitution.
When Delegate de Guzman (A) submitted the draft of this Section 20, Article IV to the October 26,
1972 meeting of the 17-man committee of the Steering Council, Delegate Leviste (O) expressly made
of record that "we are adopting here the rulings of US Supreme Court in the Miranda-Escobedo cases."
And We cannot agree with the insinuation in the dissenting opinion of Justice Castro that the Delegates
did not know of the existence of the second paragraph of Art. 125 of the Revised Penal Code.
Hence, We repeat, this historical background of Section 20, Article IV of the New Constitution, in Our
considered opinion, clearly shows that the new right granted therein to a detained person to counsel
and to be informed of such right under pain of his confession being declared inadmissible in evidence,
has and should be given a prospective and not a retroactive effect. It did not exist before its
incorporation in our New Constitution, as We held in the Jose and Paras cases, supra.
The authors of the dissenting opinions ignore the historical fact that the constitutional and legal
guarantees as well as the legal precedents that insure that the confession be voluntary, underwent a
slow and tedious development. The constitutional guarantee in question might indeed have come late
in the progress of the law on the matter. But it is only now that it had come under Section 20 of Article
IV of the 1973 Constitution. That is all that our duty and power ordain Us to proclaim; We cannot
properly do more.
Furthermore, to give a retroactive effect to this constitutional guarantee to counsel would have a great
unsettling effect on the administration of justice in this country. It may lead to the acquittal of guilty
individuals and thus cause injustice to the People and the offended parties in many criminal cases
where confessions were obtained before the effectivity of the New Constitution and in accordance with
the rules then in force although without assistance of counsel. The Constitutional Convention could not
have intended such a a disastrous consequence in the administration of justice. For if the cause of
justice suffers when an innocent person is convicted, it equally suffers when a guilty one is acquitted.
Even in the United States, the trend is now towards prospectivity. As noted in the memorandum of the
Solicitor General:t.hqw
... That survey indicates that in the early decisions rejecting retroactivity, the United States Supreme
Court did not require "pure prospectivity;" the new constitutional requirements there were applied to
all cases still pending on direct review at the time they were announced. (See Linkletter vs. Walker,
381 U.S. 618 (1965) (on admissibility of illegally-seized evidence); Tehan vs. Shott, 382 U.S. 406
(1966) (on the self-incrimination rule of Griffin vs. California, 380 U.S. 609 (1965). But the Court began
a new course with Johnson vs. New Jersey, 384 U.S. 719 (1966). It departed from Linkletter and Tehan
and came closer to "pure prospectivity" by refusing to permit cases still pending on direct review to
benefit from the new in-custody interrogation requirements of Miranda vs. Arizona. As Chief Justice
Warren observed in Jenkins vs. Delaware, 395 U.S. 213 (1969), "With Johnson we began increasing
emphasis upon the point at which law enforcement officials relied upon practices not yet prescribed."
"More recently," he continued, "we have selected the point of initial reliance." That development
began with Stovall vs. Denno, 388 U.S. 293 (1967) (on the line-up requirements of United States vs.
Wade, 388 U.S. 218 (1967) and Gilbert vs. California, 388 U.S. 263 (1967). These new rulings were
held applicable only in the immediate cases "and all future cases which involve confrontation for
identification purposes conducted in the absence of counsel after the dates of Wade and Gilbert." The
fact that Wade and Gilbert were thus the only beneficiaries of the new rules was described as an
"unavoidable consequence of the necessity that constitutional adjudications not stand as mere
dictum." In Jenkins vs. Delaware itself, the Court held that the Miranda requirement did not apply to a
re-trial after June 13, 1966 the cut-off point set for the Miranda requirement by Johnson vs. New
Jersey because Jenkins original trial had begun before the cut-off point.
Thus, the remarkable thing about this development in judge-made law is not that it is given limited
retroactive effort. That is to be expected in the case of judicial decision as distinguished from
legislation. The notable thing is that the limited retroactivity given to judge-made law in the beginning
by Linkletter vs. Walker has been abandoned as the Supreme Court in Johnson vs. New Jersey and in

Jenkins vs. Delaware moved toward "pure prospectivity" (pp. 26-28) (Respondents' memorandum, Feb.
16, 1974).
The provision of Article 22 of the Revised Penal Code that:t.hqw
Retroactive effect of penal laws.Penal laws shall have a retroactive effect insofar as they favor the
person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of
this Code, although at the time of the publication of such laws a final sentence has been pronounced
and the convict is serving the same,
is not applicable to the present cases: First, because of the inclusion We have arrived at that the
constitutional provision in question has a prospective and not a retrospective effect, based on the
reasons We have given; second, because the "penal laws" mentioned in Article 22 of the Revised Penal
Code refer to substantive penal laws, while the constitutional provision in question is basically a
procedural rule of evidence involving the incompetency and inadmissibility of confessions and
therefore cannot be included in the term "penal laws;" 6 and third, because constitutional provisions
as a rule should be given a prospective effect. 7
Even as We rule that the new constitutional right of a detained person to counsel and to be informed
of such right under pain of any confession given by him in violation thereof declared inadmissible in
evidence, to be prospective, and that confessions obtained before the effectivity of the New
Constitution are admissible in evidence against the accused, his fundamental right to prove that his
confession was involuntary still stands. Our present ruling does not in any way diminish any of his
rights before the effectivity of the New Constitution.
IN VIEW OF ALL THE FOREGOING, the petitions for writs of certiorari in G.R. Nos. L-37201-02 and G.R.
No. L-37424 are denied and that in G.R. No. L-38929 is granted. As a consequence, all the confessions
involved in said cases are hereby declared admissible in evidence. No costs.
G.R. No. L-49149 October 23, 1981
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GREGORIO TAYLARAN alias "Goring" defendant-appellant.
DE CASTRO, * J.:
Charged with murder ill the Court of First Instance of Bohol, appellant was convicted and sentenced to
life imprisonment and to indemnify the heirs of the deceased in the sum of P 12,000 and to pay costs.
Appealing to this Court, appellant insists on his defense of accidental, not deliberate killing.
We quote hereunder from the appealed decision the versions of both the prosecution and the defense,
as set forth therein:
EVIDENCE FOR THE PROSECUTION
At about 10:00 P.M. of November 5, 1976 accused called at the house of deceased Ofremia Atup y
Sarabosing located in barrio Binliw, Ubay, Bohol for the purpose of submitting himself to the latter for
treatment of his snake-bite located at this left foot. His announced purpose being good, the deceased
opened the door for him. Once inside, the deceased took her medicine paraphernalia (she being a
local quack doctor) and started treating the accused. Then all of a sudden the accused drew his small
bolo (Exhibit A) and stabbed the deceased several times causing her to fall on the floor dead. After
killing the deceased, accused proceeded to the house of the son of the deceased for the purpose of
killing him and his wife but accused did not accomplish his purpose because the deceased's son
refused to left him enter his house. After that the accused surrendered himself with his bolo to
policeman Demetrio Basilad who was then on guard at the municipal hall of Ubay. When asked why he
killed the deceased who was also his grandmother-in-law, accused answered, 'because she promised
to kill me with a 'barang', hence killed her first. (Testimonies of Salvador Atup, policeman Demetrio
Basilad and Juanita Busalla)
EVIDENCE FOR THE DEFENSE
At about 9:00 P.M. on November 5, 1976 accused went to tend to his carabao. On the way, he was
bitten by a snake at the smallest toe of his left foot. Hence, he proceeded to the house of his
grandmother-in-law, Ofremia Sarabosing which was located in barrio Binliw Ubay, Bohol for treatment
of snake-bite. Ofremia Sarabosing was a quack doctor known to cure snake-bites. He arrived at
deceased's house at about 10:00 P.M. The deceased opened the door to let him enter. Once inside he

and the deceased stood on the floor facing each other. Then the deceased instructed accused to open
his snake-bite with a bolo (Exhibit A) so that the venom can be drained out. While he was opening his
snake-bite with a bolo, he accidentally put out the light of the kerosene lamp which was placed on the
floor, This prompted the deceased to re-light said lamp. She banded her body down with her two
hands extended towards the floor to light said lamp. At the very time that deceased was bending her
body downward, accused lifted his right hand which was holding the bolo upward, so that the point of
the bolo accidentally hit deceased's right chest penetrating the nipple and resulting in her death. Upon
realizing that the deceased was fatally wounded, accused asked for her forgiveness and after that he
ran away. (Testimonies of accused himself and Elpidio Mendez). 1
As the trial court prefaced its decision, which version is correct?
That the deceased died from wounds inflicted by the appellant is not disputed. As gleaned from the
opposing versions set forth above, the conflict is in how the wounds were inflicted whether with
deliberate intent, or purely by accident.
It is extremely difficult to accept the accident version of appellant which he purveyed without
corroboration. More than one wound was found sustained by the deceased, on different parts of the
body. One single stroke could not have inflicted all of them. The first wound could possibly have been
accidentally inflicted, but the other, wounds could not have been similarly inflicted if, as just pointed
out, they did not result from the first blow. Their locations preclude that a single blow produced all the
wounds. This fact robs the accident theory of appellant of any plausibility.
The explanation of appellant as to how the wounds other than that located on the right chest was
inflicted simply cannot inspire belief. In trying to succor the old woman when she fell upon being hit
accidentally with the point of the bolo, as appellant alleged, he could not have kept on holding the
bolo. He would have dropped it instantly, as instinct would have made him do so. The infliction of more
wounds after the first was therefore deliberate and not by mere accident. It is, likewise, hard to believe
that a mere accidental hitting with the point of the small bolo, and therefore not with so much force,
would inflict a wound that is so fatal as that sustained on the chest.
That the wounding was with intent to kill is reflected by appellant's statement that he killed the old
woman because she had allegedly promised to kill him by "barang" or by witchcraft, which he gave
upon surrendering to Pat. Demetrio Basilad at the Municipal Building. It was just natural for appellant
to explain to the police why he was surrendering. For Pat. Basilad to testify on what appellant said on
this score is thus perfectly proper, and full credence must be accorded to him, being obviously an
impartial witness. It is not a matter of whether the statement is a part of the res gestae to be
admissible.
Appellant of course denies having made the admission, but in the light of the other evidence of the
prosecution, his denial is not convincing. As demonstrated earlier, his accident theory of the killing
merits not much credibility from the mere fact that more than one wound was inflicted which could not
have resulted from just one blow. Repeated blows easily negates any claim of wounding by mere
accident.
The fact that he was not allowed to enter the house of Juanita Busalla, daughter of the deceased,
when he went there directly from the old woman's house, would show that he appeared, by his
behavior or words, that he was dangerously in an angry mood, which is indicative of being a deliberate
killer rather than a sorrowful and harmless penitent for a killing he has committed only by accident. As
Juanita also testified, when appellant was already in jail, he told her that he killed her mother because
of witchcraft, corroborating Pat. Basilad's testimony. It would, therefore, be of no avail for appellant to
contend that the court a quo erred in admitting appellant's statement he made upon surrendering that
he killed the deceased because the latter intended to kill him by witchcraft as part of the res gestae.
The testimony of both Pat. Basilad and Juanita Busalla on the inculpatory statement of appellant is
legally admissible not because the statement is part of the res gestae, but for said witnesses having
heard appellant made the statement on their own perception.
It is hard to see why the aforementioned witnesses testified on the admission of appellant the way
they did unless they were prompted only by the truth. If appellant had surrendered with an admission
of killing the old woman by accident, as he must have tried to impress upon the authorities if such was
the truth, Pat. Basilad had no reason to give the killing the graver character than what it really was. As
far as he is concerned, he had no more problem relative to the solution of the crime, which is the usual
cause for police twisting the truth or other form of excesses when conducting investigations the desire
to solve a crime by all means.

That Dr. Silverio Gaviola who issued the post-mortem examination report failed to testify thereon
because he died before he could be called to the stand, so unduly stressed to show the quality of his
report as hearsay, does not affect the sufficiency of the evidence against appellant to entitle him to
the acceptance of his claim of accident to exempt him from criminal liability. As already shown, such
evidence is more than adequate to make the mind rest at ease on appellant's guilt as charged. The
autopsy report, if not admitted as such, is part of the testimony of Pat. Sarabosing. He testified on the
number and location of the wounds, and his testimony, being that of a peace officer with basic
knowledge in medico-legal medicine, having taken a course therein (p. 26, tsn, May 21, 1978) may
well serve the purpose of the autopsy report, if the report is not itself admissible as independent
evidence, as appellant would insist.
Appellant has also invoked the provision of Article IV, Section 20 of the Constitution in trying to block
the admission of his declaration to Pat. Basilad that he killed Ofremia Atup because of her alleged vow
to kill him by witchcraft, contending that the safeguards therefor have not been made available to
him. The cited provision reads:
Section 20. No person shall be compelled to be a witness against himself. Any person under
investigation for the commission of an offense shall have the right to remain silent and to counsel and
to be informed of such right No force, violence, threat, intimidation, or any other means which vitiates
the free will shall be used against himself. Any confession obtained in violation of this section shall be
inadmissible in evidence.
The applicability of the foregoing provision does not seem to contemplate cases like the print where no
written confession was sought to be presented in evidence as a result of formal custodial investigation.
What was testified to is only what appellant told the police why he is surrendering to them. It is but
natural for one who surrenders to the police to give reason or explanation for his act of surrendering. It
can hardly be said that under such circumstance, the surrendered is already "under investigation
within the meaning of the constitutional provision. As the Solicitor General correctly observes on the
circumstances of this case: "If however, he voluntarily admits the killing and it was precisely because
he surrendered to admit the killing, the constitutional safeguards to be informed of his rights to silence
and to counsel may not be invoked."

In any case, as previously pointed out, another witness, Juanita Busalla, who is not a policeman also
testified to appellant telling her when he was already in jail, that he killed Ofremia Atup because of her
promise to kill him by means of witchcraft, the same declaration he supposedly made to Pat. Basilad,
upon surrendering after the killing. The constitutional safeguard invoked can have no application to
Juanita's testimony on what appellant told her not in the course of a police investigation.
At any rate, even without the admission, the accident version of appellant is inherently incredible. As
already stated, that he was not allowed by Ofremia's daughter and husband to enter their house when
he went there direct from the old woman's house is a strong proof that he did not exhibit the harmless
mood of a repentant killer as he should visibly appear to them if the killing was only accidental. On the
contrary, he must have appeared so angry, displaying unmistakable intent to kill then after killing their
mother, as the daughter Juanita Busalla, so testified. (pp. 30-39, tsn, Feb. 1, 1978).
Verily, the issue is one of credibility. The lower court gave more of it to the testimony of the
prosecution witnesses. We find no reason to disturb the lower court's appreciation of the relative
credibility of the opposing witnesses. 2 Moreover, appellant having admitted the killing, the burden of
proving the exempting circumstance he has invoked in his defense calls for clear and convincing
evidence, as is required of similar defenses as that of self-defense. 3 This, he failed dismally to fulfill.
WHEREFORE, the appealed decision is affirmed, with costs.
SO ORDERED.
G.R. Nos. 71208-09
August 30, 1985
SATURNINA GALMAN AND REYNALDO GALMAN, petitioners,
vs.
THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE JUSTICES
AUGUSTO AMORES AND BIENVENIDO VERA CRUZ OF THE SANDIGANBAYAN, THE
HONORABLE BERNARDO FERNANDEZ, TANODBAYAN, GENERAL FABIAN C. VER, MAJOR
GENERAL PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT.

LEONARDO MOJICA SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AlC ANICETO ACUPIDO,
respondents.
G.R. Nos. 71212-13
August 30, 1985
PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN (OMBUDSMAN), petitioner,
vs.
THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO OLIVAS, SGT.
PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO,
SGT. PROSPERO BONA AND AIC ANICETO ACUPIDO, respondents
CUEVAS, JR., J.:
On August 21, 1983, a crime unparalleled in repercussions and ramifications was committed inside the
premises of the Manila International Airport (MIA) in Pasay City. Former Senator Benigno S. Aquino, Jr.,
an opposition stalwart who was returning to the country after a long-sojourn abroad, was gunned down
to death. The assassination rippled shock-waves throughout the entire country which reverberated
beyond the territorial confines of this Republic. The after-shocks stunned the nation even more as this
ramified to all aspects of Philippine political, economic and social life.
To determine the facts and circumstances surrounding the killing and to allow a free, unlimited and
exhaustive investigation of all aspects of the tragedy, 1 P.D. 1886 was promulgated creating an ad hoc
Fact Finding Board which later became more popularly known as the Agrava Board. 2 Pursuant to the
powers vested in it by P.D. 1886, the Board conducted public hearings wherein various witnesses
appeared and testified and/or produced documentary and other evidence either in obedience to a
subpoena or in response to an invitation issued by the Board Among the witnesses who appeared,
testified and produced evidence before the Board were the herein private respondents General Fabian
C. Ver, Major General Prospero Olivas, 3 Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo
Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido. 4
UPON termination of the investigation, two (2) reports were submitted to His Excellency, President
Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano Agrava; and another one,
jointly authored by the other members of the Board namely: Hon. Luciano Salazar, Hon. Amado
Dizon, Hon. Dante Santos and Hon. Ernesto Herrera. 'the reports were thereafter referred and turned
over to the TANODBAYAN for appropriate action. After conducting the necessary preliminary
investigation, the TANODBAYAN 5 filed with the SANDIGANBAYAN two (2) Informations for MURDER-one
for the killing of Sen. Benigno S. Aquino which was docketed as Criminal Case No. 10010 and another,
criminal Case No. 10011, for the killing of Rolando Galman, who was found dead on the airport tarmac
not far from the prostrate body of Sen. Aquino on that same fateful day. In both criminal cases, private
respondents were charged as accessories, along with several principals, and one accomplice.
Upon arraignment, all the accused, including the herein private ate Respondents pleaded NOT GUILTY.
In the course of the joint trial of the two (2) aforementioned cases, the Prosecution represented by the
Office of the petition TANODBAYAN, marked and thereafter offered as part of its evidence, the
individual testimonies of private respondents before the Agrava Board. 6 Private respondents, through
their respective counsel objected to the admission of said exhibits. Private respondent Gen. Ver filed a
formal "Motion to Exclude Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence
against him in the above-entitled cases" 7 contending that its admission will be in derogation of his
constitutional right against self-incrimination and violative of the immunity granted by P.D. 1886. He
prayed that his aforesaid testimony be rejected as evidence for the prosecution. Major Gen. Olivas and
the rest of the other private respondents likewise filed separate motions to exclude their respective
individual testimonies invoking the same ground. 8 Petitioner TANODBAYAN opposed said motions
contending that the immunity relied upon by the private respondents in support of their motions to
exclude their respective testimonies, was not available to them because of their failure to invoke their
right against self-incrimination before the ad hoc Fact Finding Board. 9 Respondent SANDIGANBAYAN
ordered the TANODBAYAN and the private respondents to submit their respective memorandum on the
issue after which said motions will be considered submitted for resolution. 10
On May 30, 1985, petitioner having no further witnesses to present and having been required to make
its offer of evidence in writing, respondent SANDIGANBAYAN, without the pending motions for
exclusion being resolved, issued a Resolution directing that by agreement of the parties, the pending
motions for exclusion and the opposition thereto, together with the memorandum in support thereof,
as well as the legal issues and arguments, raised therein are to be considered jointly in the Court's
Resolution on the prosecution's formal offer of exhibits and other documentary evidences. 11 On June

3, 1985, the prosecution made a written "Formal Offer of Evidence" which includes, among others, the
testimonies of private respondents and other evidences produced by them before the Board, all of
which have been previously marked in the course of the trial. 12
All the private respondents objected to the prosecution's formal offer of evidence on the same ground
relied upon by them in their respective motion for exclusion.
On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in these two (2)
petitions, admitting all the evidences offered by the prosecution except the testimonies and/or other
evidence produced by the private respondents in view of the immunity granted by P.D. 1886. 13
Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they now come
before Us by way of certiorari 14 praying for the amendment and/or setting aside of the challenged
Resolution on the ground that it was issued without jurisdiction and/or with grave abuse of discretion
amounting to lack of jurisdiction. Private prosecutor below, as counsel for the mother of deceased
Rolando Galman, also filed a separate petition for certiorari 15 on the same ground. Having arisen
from the same factual beginnings and raising practically Identical issues, the two (2) petitioners were
consolidated and will therefore be jointly dealt with and resolved in this Decision.
The crux of the instant controversy is the admissibility in evidence of the testimonies given by the
eight (8) private respondents who did not invoke their rights against self-incrimination before the
Agrava Board.
It is the submission of the prosecution, now represented by the petitioner TANODBAYAN, that said
testimonies are admissible against the private respondents, respectively, because of the latter's failure
to invoke before the Agrava Board the immunity granted by P.D. 1886. Since private respondents did
not invoke said privilege, the immunity did not attach. Petitioners went further by contending that
such failure to claim said constitutional privilege amounts to a waiver thereof. 16 The private
respondents, on the other hand, claim that notwithstanding failure to set up the privilege against selfincrimination before the Agrava Board, said evidences cannot be used against them as mandated by
Section 5 of the said P.D. 1886. They contend that without the immunity provided for by the second
clause of Section 5, P.D. 1886, the legal compulsion imposed by the first clause of the same Section
would suffer from constitutional infirmity for being violative of the witness' right against selfincrimination. 17 Thus, the protagonists are locked in horns on the effect and legal significance of
failure to set up the privilege against self-incrimination.
The question presented before Us is a novel one. Heretofore, this Court has not been previously called
upon to rule on issues involving immunity statutes. The relative novelty of the question coupled with
the extraordinary circumstance that had precipitated the same did nothing to ease the burden of
laying down the criteria upon which this Court will henceforth build future jurisprudence on a
heretofore unexplored area of judicial inquiry. In carrying out this monumental task, however, We shall
be guided, as always, by the constitution and existing laws.
The Agrava Board, 18 came into existence in response to a popular public clamor that an impartial and
independent body, instead of any ordinary police agency, be charged with the task of conducting the
investigation. The then early distortions and exaggerations, both in foreign and local media, relative to
the probable motive behind the assassination and the person or persons responsible for or involved in
the assassination hastened its creation and heavily contributed to its early formation. 19
Although referred to and designated as a mere Fact Finding Board, the Board is in truth and in fact,
and to all legal intents and purposes, an entity charged, not only with the function of determining the
facts and circumstances surrounding the killing, but more importantly, the determination of the person
or persons criminally responsible therefor so that they may be brought before the bar of justice. For
indeed, what good will it be to the entire nation and the more than 50 million Filipinos to know the
facts and circumstances of the killing if the culprit or culprits will nevertheless not be dealt with
criminally? This purpose is implicit from Section 12 of the said Presidential Decree, the pertinent
portion of which provides
SECTION 12. The findings of the Board shall be made public. Should the findings warrant the
prosecution of any person, the Board may initiate the filing of proper complaint with the appropriate
got government agency. ... (Emphasis supplied)
The investigation therefor is also geared, as any other similar investigation of its sort, to the
ascertainment and/or determination of the culprit or culprits, their consequent prosecution and

ultimately, their conviction. And as safeguard, the P.D. guarantees "any person called to testify before
the Board the right to counsel at any stage of the proceedings." 20 Considering the foregoing
environmental settings, it cannot be denied that in the course of receiving evidence, persons
summoned to testify will include not merely plain witnesses but also those suspected as authors and
co-participants in the tragic killing. And when suspects are summoned and called to testify and/or
produce evidence, the situation is one where the person testifying or producing evidence is
undergoing investigation for the commission of an offense and not merely in order to shed light on the
facts and surrounding circumstances of the assassination, but more importantly, to determine the
character and extent of his participation therein.
Among this class of witnesses were the herein private respondents, suspects in the said assassination,
all of whom except Generals Ver and Olivas, were detained (under technical arrest) at the time they
were summoned and gave their testimonies before the Agrava Board. This notwithstanding,
Presidential Decree No. 1886 denied them the right to remain silent. They were compelled to testify or
be witnesses against themselves. Section 5 of P.D. 1886 leave them no choice. They have to take the
witness stand, testify or produce evidence, under pain of contempt if they failed or refused to do so.
21 The jeopardy of being placed behind prison bars even before conviction dangled before their very
eyes. Similarly, they cannot invoke the right not to be a witness against themselves, both of which are
sacrosantly enshrined and protected by our fundamental law. 21-a Both these constitutional rights (to
remain silent and not to be compelled to be a witness against himself) were right away totally
foreclosed by P.D. 1886. And yet when they so testified and produced evidence as ordered, they were
not immune from prosecution by reason of the testimony given by them.
Of course, it may be argued is not the right to remain silent available only to a person undergoing
custodial interrogation? We find no categorical statement in the constitutional provision on the matter
which reads:
... Any person under investigation for the commission of an offense shall have the right to remain and
to counsel, and to be informed of such right. ... 22 (Emphasis supplied)
Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence 23 on this specific
portion of the subject provision. In all these cases, it has been categorically declared that a person
detained for the commission of an offense undergoing investigation has a right to be informed of his
right to remain silent, to counsel, and to an admonition that any and all statements to be given by him
may be used against him. Significantly however, there has been no pronouncement in any of these
cases nor in any other that a person similarly undergoing investigation for the commission of an
offense, if not detained, is not entitled to the constitutional admonition mandated by said Section 20,
Art. IV of the Bill of Rights.
The fact that the framers of our Constitution did not choose to use the term "custodial" by having it
inserted between the words "under" and investigation", as in fact the sentence opens with the phrase
"any person " goes to prove that they did not adopt in toto the entire fabric of the Miranda doctrine. 24
Neither are we impressed by petitioners' contention that the use of the word "confession" in the last
sentence of said Section 20, Article 4 connotes the Idea that it applies only to police investigation, for
although the word "confession" is used, the protection covers not only "confessions" but also
"admissions" made in violation of this section. They are inadmissible against the source of the
confession or admission and against third person. 25
It is true a person in custody undergoing investigation labors under a more formidable ordeal and
graver trying conditions than one who is at liberty while being investigated. But the common
denominator in both which is sought to be avoided is the evil of extorting from the very mouth of the
person undergoing interrogation for the commission of an offense, the very evidence with which to
prosecute and thereafter convict him. This is the lamentable situation we have at hand.
All the private respondents, except Generals Ver and Olivas, are members of the military contingent
that escorted Sen. Aquino while disembarking from the plane that brought him home to Manila on that
fateful day. Being at the scene of the crime as such, they were among the first line of suspects in the
subject assassination. General Ver on the other hand, being the highest military authority of his copetitioners labored under the same suspicion and so with General Olivas, the first designated
investigator of the tragedy, but whom others suspected, felt and believed to have bungled the case.
The papers, especially the foreign media, and rumors from uglywagging tongues, all point to them as
having, in one way or another participated or have something to do, in the alleged conspiracy that
brought about the assassination. Could there still be any doubt then that their being asked to testify,

was to determine whether they were really conspirators and if so, the extent of their participation in
the said conspiracy? It is too taxing upon one's credulity to believe that private respondents' being
called to the witness stand was merely to elicit from them facts and circumstances surrounding the
tragedy, which was already so abundantly supplied by other ordinary witnesses who had testified
earlier. In fact, the records show that Generals Ver and Olivas were among the last witnesses called by
the Agrava Board. The subject matter dealt with and the line of questioning as shown by the transcript
of their testimonies before the Agrava Board, indubitably evinced purposes other than merely eliciting
and determining the so-called surrounding facts and circumstances of the assassination. In the light of
the examination reflected by the record, it is not far-fetched to conclude that they were called to the
stand to determine their probable involvement in the crime being investigated. Yet they have not been
informed or at the very least even warned while so testifying, even at that particular stage of their
testimonies, of their right to remain silent and that any statement given by them may be used against
them. If the investigation was conducted, say by the PC, NBI or by other police agency, all the herein
private respondents could not have been compelled to give any statement whether incriminatory or
exculpatory. Not only that. They are also entitled to be admonished of their constitutional right to
remain silent, to counsel, and be informed that any and all statements given by them may be used
against them. Did they lose their aforesaid constitutional rights simply because the investigation was
by the Agrava Board and not by any police investigator, officer or agency? True, they continued
testifying. May that be construed as a waiver of their rights to remain silent and not to be compelled to
be a witness against themselves? The answer is yes, if they have the option to do so. But in the light
of the first portion of Section 5 of P.D. 1886 and the awesome contempt power of the Board to punish
any refusal to testify or produce evidence, We are not persuaded that when they testified, they
voluntarily waived their constitutional rights not to be compelled to be a witness against themselves
much less their right to remain silent.
Compulsion as it is understood here does not necessarily connote the use of violence; it may be the
product of unintentional statements. Pressure which operates to overbear his will, disable him from
making a free and rational choice, or impair his capacity for rational judgment would in our opinion be
sufficient. So is moral coercion 'tending to force testimony from the unwilling lips of the defendant. 26
Similarly, in the case of Louis J. Lefkowitz v. Russel 27 Turley" citing Garrity vs. New Jersey" where
certain police officers summoned to an inquiry being conducted by the Attorney General involving the
fixing of traffic tickets were asked questions following a warning that if they did not answer they would
be removed from office and that anything they said might be used against them in any criminal
proceeding, and the questions were answered, the answers given cannot over their objection be later
used in their prosecutions for conspiracy. The United States Supreme Court went further in holding
that:
the protection of the individuals under the Fourteenth Amendment against coerced statements
prohibits use in subsequent proceedings of statements obtained under threat or removal from office,
and that it extends to all, whether they are policemen or other members of the body politic. 385 US at
500, 17 L Ed. 562. The Court also held that in the context of threats of removal from office the act of
responding to interrogation was not voluntary and was not an effective waiver of the privilege against
self- incrimination.
To buttress their precarious stand and breathe life into a seemingly hopeless cause, petitioners and
amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right not to be compelled to be a witness
against himself" applies only in favor of an accused in a criminal case. Hence, it may not be invoked
by any of the herein private respondents before the Agrava Board. The Cabal vs. Kapunan 28 doctrine
militates very heavily against this theory. Said case is not a criminal case as its title very clearly
indicates. It is not People vs. Cabal nor a prosecution for a criminal offense. And yet, when Cabal
refused to take the stand, to be sworn and to testify upon being called as a witness for complainant
Col. Maristela in a forfeiture of illegally acquired assets, this Court sustained Cabal's plea that for him
to be compelled to testify will be in violation of his right against self- incrimination. We did not therein
state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take
the witness stand and testify, and that he can invoke his right against self-incrimination only when a
question which tends to elicit an answer that will incriminate him is profounded to him. Clearly then, it
is not the character of the suit involved but the nature of the proceedings that controls. The privilege
has consistently been held to extend to all proceedings sanctioned by law and to all cases in which
punishment is sought to be visited upon a witness, whether a party or not. 29 If in a mere forfeiture
case where only property rights were involved, "the right not to be compelled to be a witness against
himself" is secured in favor of the defendant, then with more reason it cannot be denied to a person
facing investigation before a Fact Finding Board where his life and liberty, by reason of the statements

to be given by him, hang on the balance. Further enlightenment on the subject can be found in the
historical background of this constitutional provision against self- incrimination. The privilege against
self- incrimination is guaranteed in the Fifth Amendment to the Federal Constitution. In the Philippines,
the same principle obtains as a direct result of American influence. At first, the provision in our organic
laws were similar to the Constitution of the United States and was as follows:
That no person shall be ... compelled in a criminal case to be a witness against himself. 30
As now worded, Section 20 of Article IV reads:
No person shall be compelled to be a witness against himself.
The deletion of the phrase "in a criminal case" connotes no other import except to make said provision
also applicable to cases other than criminal. Decidedly then, the right "not to be compelled to testify
against himself" applies to the herein private respondents notwithstanding that the proceedings
before the Agrava Board is not, in its strictest sense, a criminal case
No doubt, the private respondents were not merely denied the afore-discussed sacred constitutional
rights, but also the right to "due process" which is fundamental fairness. 31 Quoting the highlyrespected eminent constitutionalist that once graced this Court, the former Chief Justice Enrique M.
Fernando, due process
... is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put,
arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official
action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression.
Due process is thus hostile to any official action marred by lack of reasonableness. Correctly, it has
been Identified as freedom from arbitrariness. It is the embodiment of the sporting Idea of fair play
(Frankfurter, Mr. Justice Holmes and the Supreme Court, 1983, pp. 32-33). It exacts fealty "to those
strivings for justice and judges the act of officialdom of whatever branch "in the light of reason drawn
from considerations of fairness that reflect (democratic) traditions of legal and political thought."
(Frankfurter, Hannah v. Larche 1960, 363 US 20, at 487). It is not a narrow or '"echnical conception
with fixed content unrelated to time, place and circumstances."(Cafeteria Workers v. McElroy 1961,
367 US 1230) Decisions based on such a clause requiring a 'close and perceptive inquiry into
fundamental principles of our society. (Bartkus vs. Illinois, 1959, 359 US 121). Questions of due
process are not to be treated narrowly or pedantically in slavery to form or phrases. (Pearson v.
McGraw, 1939, 308 US 313).
Our review of the pleadings and their annexes, together with the oral arguments, manifestations and
admissions of both counsel, failed to reveal adherence to and compliance with due process. The
manner in which the testimonies were taken from private respondents fall short of the constitutional
standards both under the DUE PROCESS CLAUSE and under the EXCLUSIONARY RULE in Section 20,
Article IV. In the face of such grave constitutional infirmities, the individual testimonies of private
respondents cannot be admitted against them in ally criminal proceeding. This is true regardless of
absence of claim of constitutional privilege or of the presence of a grant of immunity by law.
Nevertheless, We shall rule on the effect of such absence of claim to the availability to private
respondents of the immunity provided for in Section 5, P.D. 1886 which issue was squarely raised and
extensively discussed in the pleadings and oral arguments of the parties.
Immunity statutes may be generally classified into two: one, which grants "use immunity"; and the
other, which grants what is known as "transactional immunity." The distinction between the two is as
follows: "Use immunity" prohibits use of witness' compelled testimony and its fruits in any manner in
connection with the criminal prosecution of the witness. On the other hand, "transactional immunity"
grants immunity to the witness from prosecution for an offense to which his compelled testimony
relates." 32 Examining Presidential Decree 1886, more specifically Section 5 thereof, which reads:
SEC. 5.
No person shall be excused from attending and testifying or from producing books,
records, correspondence, documents, or other evidence in obedience to a subpoena issued by the
Board on the ground that his testimony or the evidence required of him may tend to incriminate him or
subject him to penalty or forfeiture; but his testimony or any evidence produced by him shall not be
used against him in connection with any transaction, matter or thing concerning which he is
compelled, after having invoked his privilege against self-incrimination, to testify or produce evidence,
except that such individual so testifying shall not be exempt from prosecution and punishment for
perjury committed in so testifying, nor shall he be exempt from demotion or removal from office.
(Emphasis supplied)

it is beyond dispute that said law belongs to the first type of immunity statutes. It grants merely
immunity from use of any statement given before the Board, but not immunity from prosecution by
reason or on the basis thereof. Merely testifying and/or producing evidence do not render the witness
immuned from prosecution notwithstanding his invocation of the right against self- incrimination. He is
merely saved from the use against him of such statement and nothing more. Stated otherwise ... he
still runs the risk of being prosecuted even if he sets up his right against self- incrimination. The
dictates of fair play, which is the hallmark of due process, demands that private respondents should
have been informed of their rights to remain silent and warned that any and all statements to be given
by them may be used against them. This, they were denied, under the pretense that they are not
entitled to it and that the Board has no obligation to so inform them.
It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the petitioners
that the right against self-incrimination must be invoked before the Board in order to prevent use of
any given statement against the testifying witness in a subsequent criminal prosecution. A literal
interpretation fashioned upon Us is repugnant to Article IV, Section 20 of the Constitution, which is the
first test of admissibility. It reads:
No person shall be compelled to be a witness against himself. Any person under investigation for the
commission of an offense shall have the right to remain silent and to counsel, and to be informed of
such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall
be used against him. Any confession obtained in violation of this section shall be inadmissible in
evidence. (Emphasis supplied)
The aforequoted provision renders inadmissible any confession obtained in violation thereof. As herein
earlier discussed, this exclusionary rule applies not only to confessions but also to admissions, 33
whether made by a witness in any proceeding or by an accused in a criminal proceeding or any person
under investigation for the commission of an offense. Any interpretation of a statute which will give it
a meaning in conflict with the Constitution must be avoided. So much so that if two or more
constructions or interpretations could possibly be resorted to, then that one which will avoid
unconstitutionality must be adopted even though it may be necessary for this purpose to disregard the
more usual and apparent import of the language used. 34 To save the statute from a declaration of
unconstitutionality it must be given a reasonable construction that will bring it within the fundamental
law. 35 Apparent conflict between two clauses should be harmonized. 36
But a literal application of a requirement of a claim of the privilege against self- incrimination as a
condition sine qua non to the grant of immunity presupposes that from a layman's point of view, he
has the option to refuse to answer questions and therefore, to make such claim. P.D. 1886, however,
forecloses such option of refusal by imposing sanctions upon its exercise, thus:

SEC. 4.
The Board may hold any person in direct or indirect contempt, and impose appropriate
penalties therefor. A person guilty of .... including ... refusal to be sworn or to answer as a witness or to
subscribe to an affidavit or deposition when lawfully required to do so may be summarily adjudged in
direct contempt by the Board. ...
Such threat of punishment for making a claim of the privilege leaves the witness no choice but to
answer and thereby forfeit the immunity purportedly granted by Sec. 5. The absurdity of such
application is apparent Sec. 5 requires a claim which it, however, forecloses under threat of contempt
proceedings against anyone who makes such claim. But the strong testimonial compulsion imposed by
Section 5 of P.D. 1886 viewed in the light of the sanctions provided in Section 4,infringes upon the
witness' right against self-incrimination. As a rule, such infringement of the constitutional right renders
inoperative the testimonial compulsion, meaning, the witness cannot be compelled to answer UNLESS
a co-extensive protection in the form of IMMUNITY is offered. 37 Hence, under the oppressive
compulsion of P.D. 1886, immunity must in fact be offered to the witness before he can be required to
answer, so as to safeguard his sacred constitutional right. But in this case, the compulsion has already
produced its desired results the private respondents had all testified without offer of immunity. Their
constitutional rights are therefore, in jeopardy. The only way to cure the law of its unconstitutional
effects is to construe it in the manner as if IMMUNITY had in fact been offered. We hold, therefore, that
in view of the potent sanctions imposed on the refusal to testify or to answer questions under Sec. 4 of
P.D. 1886, the testimonies compelled thereby are deemed immunized under Section 5 of the same law.
The applicability of the immunity granted by P.D. 1886 cannot be made to depend on a claim of the
privilege against self-incrimination which the same law practically strips away from the witness.

With the stand we take on the issue before Us, and considering the temper of the times, we run the
risk of being consigned to unpopularity. Conscious as we are of, but undaunted by, the frightening
consequences that hover before Us, we have strictly adhered to the Constitution in upholding the rule
of law finding solace in the view very aptly articulated by that well-known civil libertarian and admired
defender of human rights of this Court, Mr. Justice Claudio Teehankee, in the case of People vs.
Manalang 38 and we quote:
I am completely conscious of the need for a balancing of the interests of society with the rights and
freedoms of the individuals. I have advocated the balancing-of-interests rule in an situations which call
for an appraisal of the interplay of conflicting interests of consequential dimensions. But I reject any
proposition that would blindly uphold the interests of society at the sacrifice of the dignity of any
human being. (Emphasis supplied)

Lest we be misunderstood, let it be known that we are not by this disposition passing upon the guilt or
innocence of the herein private respondents an issue which is before the Sandiganbayan. We are
merely resolving a question of law and the pronouncement herein made applies to all similarly
situated, irrespective of one's rank and status in society.
IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions without merit, same
are DISMISSED. No pronouncement as to costs.
SO ORDERED.
G.R. No. 85215
July 7, 1989
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial
Region, Baguio City, and FELIPE RAMOS, respondents.
Nelson Lidua for private respondent.
NARVASA, J.:
What has given rise to the controversy at bar is the equation by the respondent Judge of the right of
an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III
of the Constitution, with the right of any person "under investigation for the commission of an offense .
. . to remain silent and to counsel, and to be informed of such right," granted by the same provision.
The relevant facts are not disputed.
Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned at
its Baguio City station. It having allegedly come to light that he was involved in irregularities in the
sales of plane tickets, 1 the PAL management notified him of an investigation to be conducted into the
matter of February 9, 1986. That investigation was scheduled in accordance with PAL's Code of
Conduct and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine
Airlines Employees' Association (PALEA) to which Ramos pertained. 2
On the day before the investigation, February 8,1986, Ramos gave to his superiors a handwritten
notes 3 reading as follows:
2-8-86
TO WHOM IT MAY CONCERN:
THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE IRREGULARITIES
ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P 76,000 (APPROX.) SUBJECT TO CONDITIONS AS MAY
BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86.
(s) Felipe Ramos
(Printed) F. Ramos
At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City,
Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo
Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of the
Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in writing.

Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the tickets
mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that although
he had planned on paying back the money, he had been prevented from doing so, "perhaps (by)
shame," that he was still willing to settle his obligation, and proferred a "compromise x x to pay on
staggered basis, (and) the amount would be known in the next investigation;" that he desired the next
investigation to be at the same place, "Baguio CTO," and that he should be represented therein by
"Shop stewardees ITR Nieves Blanco;" and that he was willing to sign his statement (as he in fact
afterwards did). 4 How the investigation turned out is not dealt with the parties at all; but it would
seem that no compromise agreement was reached much less consummated.
About two (2) months later, an information was filed against Felipe Ramos charging him with the crime
of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January 29,
1987. In that place and during that time, according to the indictment, 5 he (Ramos)
.. with unfaithfulness and/or abuse of confidence, did then and there willfully ... defraud the Philippine
Airlines, Inc., Baguio Branch, ... in the following manner, to wit: said accused ... having been entrusted
with and received in trust fare tickets of passengers for one-way trip and round-trip in the total amount
of P76,700.65, with the express obligation to remit all the proceeds of the sale, account for it and/or to
return those unsold, ... once in possession thereof and instead of complying with his obligation, with
intent to defraud, did then and there ... misappropriate, misapply and convert the value of the tickets
in the sum of P76,700.65 and in spite of repeated demands, ... failed and refused to make good his
obligation, to the damage and prejudice of the offended party .. .
On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter
ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and
supervision of the Fiscal.
At the close of the people's case, the private prosecutors made a written offer of evidence dated June
21, 1988, 6 which included "the (above mentioned) statement of accused Felipe J. Ramos taken on
February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well as his
"handwritten admission x x given on February 8, 1986," also above referred to, which had been
marked as Exhibit K.
The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence." 7 Particularly as regards
the peoples' Exhibit A, the objection was that "said document, which appears to be a confession, was
taken without the accused being represented by a lawyer." Exhibit K was objected to "for the same
reasons interposed under Exhibits 'A' and 'J.'
By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the
testimony of the witnesses who testified in connection therewith and for whatever they are worth,"
except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it
appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL Baguio
City Ticket Office, in an investigation conducted by the Branch Manager x x since it does not appear
that the accused was reminded of this constitutional rights to remain silent and to have counsel, and
that when he waived the same and gave his statement, it was with the assistance actually of a
counsel." He also declared inadmissible "Exhibit K, the handwritten admission made by accused Felipe
J. Ramos, given on February 8, 1986 x x for the same reason stated in the exclusion of Exhibit 'A' since
it does not appear that the accused was assisted by counsel when he made said admission."
The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order dated September
14, 1988. 10 In justification of said Order, respondent Judge invoked this Court's rulings in Morales, Jr.
v. Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA 467, People. v. Sison, 142 SCRA
219, and People v. Decierdo, 149 SCRA 496, among others, to the effect that "in custodial
investigations the right to counsel may be waived but the waiver shall not be valid unless made with
the assistance of counsel," and the explicit precept in the present Constitution that the rights in
custodial investigation "cannot be waived except in writing and in the presence of counsel." He
pointed out that the investigation of Felipe Ramos at the PAL Baguio Station was one "for the offense
of allegedly misappropriating the proceeds of the tickets issued to him' and therefore clearly fell
"within the coverage of the constitutional provisions;" and the fact that Ramos was not detained at the
time, or the investigation was administrative in character could not operate to except the case "from
the ambit of the constitutional provision cited."
These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for certiorari
and prohibition at bar, filed in this Court by the private prosecutors in the name of the People of the

Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson and Felipe Ramos
to comment on the petition, and directed issuance of a "TEMPORARY RESTRAINING ORDER . . .
ENJOINING the respondents from proceeding further with the trial and/or hearing of Criminal Case No.
3488-R (People ... vs. Felipe Ramos), including the issuance of any order, decision or judgment in the
aforesaid case or on any matter in relation to the same case, now pending before the Regional Trial
Court of Baguio City, Br. 6, First Judicial Region." The Court also subsequently required the Solicitor
General to comment on the petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor
General have all been filed. The Solicitor General has made common cause with the petitioner and
prays "that the petition be given due course and thereafter judgment be rendered setting aside
respondent Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The
Solicitor General has thereby removed whatever impropriety might have attended the institution of
the instant action in the name of the People of the Philippines by lawyers de parte of the offended
party in the criminal action in question
The Court deems that there has been full ventilation of the issue of whether or not it was grave
abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will now
proceed to resolve it.
At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11 to which respondent
Judge has given a construction that is disputed by the People. The section reads as follows:
SEC. 20. No person shall be compelled to be a witness against himself Any person under investigation
for the commission of an offense shall have the right to remain silent and to counsel, and to be
informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the
free will shall be used against him. Any confession obtained in violation of this section shall be
inadmissible in evidence.
It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section,
namely:
1) the right against self-incrimination i.e., the right of a person not to be compelled to be a witness
against himself set out in the first sentence, which is a verbatim reproduction of Section 18, Article
III of the 1935 Constitution, and is similar to that accorded by the Fifth Amendment of the American
Constitution, 12 and
2) the rights of a person in custodial interrogation, i.e., the rights of every suspect "under investigation
for the commission of an offense."
Parenthetically, the 1987 Constitution indicates much more clearly the individuality and disparateness
of these rights. It has placed the rights in separate sections. The right against self- incrimination, "No
person shall be compelled to be a witness against himself," is now embodied in Section 17, Article III of
the 1987 Constitution. The lights of a person in custodial interrogation, which have been made more
explicit, are now contained in Section 12 of the same Article III. 13
Right Against Self-Incrimination
The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution,
is accorded to every person who gives evidence, whether voluntarily or under compulsion of
subpoena, in any civil, criminal, or administrative proceeding. 14 The right is NOT to "be compelled to
be a witness against himself"
The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of refusal
to answer incriminating questions and not a prohibition of inquiry." 16 It simply secures to a witness,
whether he be a party or not, the right to refue to answer any particular incriminatory question, i.e.,
one the answer to which has a tendency to incriminate him for some crime. However, the right can be
claimed only when the specific question, incriminatory in character, is actually put to the witness. It
cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to
decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness
receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer
questions. It is only when a particular question is addressed to him, the answer to which may
incriminate him for some offense, that he may refuse to answer on the strength of the constitutional
guaranty.
That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge, or
other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a

witness of his right against self-incrimination. It is a right that a witness knows or should know, in
accordance with the well known axiom that every one is presumed to know the law, that ignorance of
the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness
can be expected to know in advance the character or effect of a question to be put to the latter. 17
The right against self-incrimination is not self- executing or automatically operational. It must be
claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows
that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate
time. 18
Rights in Custodial Interrogation
Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of
rights. These rights apply to persons "under investigation for the commission of an offense," i.e.,
"suspects" under investigation by police authorities; and this is what makes these rights different from
that embodied in the first sentence, that against self-incrimination which, as aforestated,
indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative.
This provision granting explicit rights to persons under investigation for an offense was not in the 1935
Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v. Arizona,
19 a decision described as an "earthquake in the world of law enforcement." 20
Section 20 states that whenever any person is "under investigation for the commission of
an offense"1)

he shall have the right to remain silent and to counsel, and to be informed of such right, 21

2)
nor force, violence, threat, intimidation, or any other means which vitiates the free will shall be
used against him; 22 and
3)

any confession obtained in violation of x x (these rights shall be inadmissible in evidence. 23

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in
police custody, "in-custody interrogation" being regarded as the commencement of an adversary
proceeding against the suspect. 24
He must be warned prior to any questioning that he has the right to remain silent, that anything he
says can be used against him in a court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so
desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation.
After such warnings have been given, such opportunity afforded him, the individual may knowingly
and intelligently waive these rights and agree to answer or make a statement. But unless and until
such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as
a result of interrogation can be used against him.
The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated
atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights." 25
The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody
interrogation of accused persons." 26 And, as this Court has already stated, by custodial interrogation
is meant "questioning initiated by law enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant way." 27 The situation contemplated
has also been more precisely described by this Court." 28
.. . After a person is arrested and his custodial investigation begins a confrontation arises which at best
may be tanned unequal. The detainee is brought to an army camp or police headquarters and there
questioned and "cross-examined" not only by one but as many investigators as may be necessary to
break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he
meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They
employ all the methods and means that experience and study have taught them to extract the truth,
or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their
constitutional rights. And even if they were, the intimidating and coercive presence of the officers of
the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to
remedy this imbalance.

Not every statement made to the police by a person involved in some crime is within the scope of the
constitutional protection. If not made "under custodial interrogation," or "under investigation for the
commission of an offense," the statement is not protected. Thus, in one case, 29 where a person went
to a police precinct and before any sort of investigation could be initiated, declared that he was giving
himself up for the killing of an old woman because she was threatening to kill him by barang, or
witchcraft, this Court ruled that such a statement was admissible, compliance with the constitutional
procedure on custodial interrogation not being exigible under the circumstances.
Rights of Defendant in Criminal Case
As Regards Giving of Testimony
It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against selfincrimination and (2) those during custodial interrogation apply to persons under preliminary
investigation or already charged in court for a crime.
It seems quite evident that a defendant on trial or under preliminary investigation is not under
custodial interrogation. His interrogation by the police, if any there had been would already have been
ended at the time of the filing of the criminal case in court (or the public prosecutors' office). Hence,
with respect to a defendant in a criminal case already pending in court (or the public prosecutor's
office), there is no occasion to speak of his right while under "custodial interrogation" laid down by the
second and subsequent sentences of Section 20, Article IV of the 1973 Constitution, for the obvious
reason that he is no longer under "custodial interrogation."
But unquestionably, the accused in court (or undergoing preliminary investigation before the public
prosecutor), in common with all other persons, possesses the right against self- incrimination set out in
the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to answer a
specific incriminatory question at the time that it is put to him. 30
Additionally, the accused in a criminal case in court has other rights in the matter of giving testimony
or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness."
Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others1)
to be exempt from being a witness against himself, 31 and 2) to testify as witness in his own
behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however,
his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 32
The right of the defendant in a criminal case "to be exempt from being a witness against himself'
signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is
the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other
process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a
co-accused, or even for himself. 33 In other words unlike an ordinary witness (or a party in a civil
action) who may be compelled to testify by subpoena, having only the right to refuse to answer a
particular incriminatory question at the time it is put to him-the defendant in a criminal action can
refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question.
34 And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner
prejudice or be used against him." 35
If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does
testify, then he "may be cross- examined as any other witness." He may be cross-examined as to any
matters stated in his direct examination, or connected therewith . 36 He may not on cross-examination
refuse to answer any question on the ground that the answer that he will give, or the evidence he will
produce, would have a tendency to incriminate him for the crime with which he is charged.
It must however be made clear that if the defendant in a criminal action be asked a question which
might incriminate him, not for the crime with which he is charged, but for some other crime, distinct
from that of which he is accused, he may decline to answer that specific question, on the strength of
the right against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973
Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for
murder, the accused should testify in his behalf, he may not on cross-examination refuse to answer
any question on the ground that he might be implicated in that crime of murder; but he may decline to
answer any particular question which might implicate him for a different and distinct offense, say,
estafa.

In fine, a person suspected of having committed a crime and subsequently charged with its
commission in court, has the following rights in the matter of his testifying or producing evidence, to
wit:
1)
BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary
investigation), but after having been taken into custody or otherwise deprived of his liberty in some
significant way, and on being interrogated by the police: the continuing right to remain silent and to
counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any
other means which vitiates the free will; and to have evidence obtained in violation of these rights
rejected; and
2)
a)
b)
c)
d)
some

AFTER THE CASE IS FILED IN COURT 37

to refuse to be a witness;
not to have any prejudice whatsoever result to him by such refusal;
to testify in his own behalf, subject to cross-examination by the prosecution;
WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for
crime other than that for which he is then prosecuted.

It should by now be abundantly apparent that respondent Judge has misapprehended the nature and
import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has taken
them as applying to the same juridical situation, equating one with the other. In so doing, he has
grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to be
cogent and logical. The thesis was however so far divorced from the actual and correct state of the
constitutional and legal principles involved as to make application of said thesis to the case before him
tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders were thus
rendered with grave abuse of discretion. They should be as they are hereby, annulled and set aside.
It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under
custodial interrogation, as the term should be properly understood, prior to and during the
administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have
had a hand. The constitutional rights of a person under custodial interrogation under Section 20,
Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the
inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first
day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be
recorded, the record having thereafter been marked during the trial of the criminal action
subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit
K) that he sent to his superiors on February 8,1986, the day before the investigation, offering to
compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part.
They may not be excluded on the ground that the so-called "Miranda rights" had not been accorded to
Ramos.
His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the right of
any person against self-incrimination when the investigation is conducted by the complaining parties,
complaining companies, or complaining employers because being interested parties, unlike the police
agencies who have no propriety or pecuniary interest to protect, they may in their over-eagerness or
zealousness bear heavily on their hapless suspects, whether employees or not, to give statements
under an atmosphere of moral coercion, undue ascendancy and undue influence." It suffices to draw
attention to the specific and peremptory requirement of the law that disciplinary sanctions may not be
imposed on any employee by his employer until and unless the employee has been accorded due
process, by which is meant that the latter must be informed of the offenses ascribed to him and
afforded adequate time and opportunity to explain his side. The requirement entails the making of
statements, oral or written, by the employee under such administrative investigation in his defense,
with opportunity to solicit the assistance of counsel, or his colleagues and friends. The employee may,
of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt
to do so, in his defense to the accusation against him, it would be absurd to reject his statements,
whether at the administrative investigation, or at a subsequent criminal action brought against him,
because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to
silence and to counsel and to be informed thereof, etc.) which, to repeat, are relevant only in custodial
investigations. Indeed, it is self-evident that the employee's statements, whether called "position
paper," "answer," etc., are submitted by him precisely so that they may be admitted and duly
considered by the investigating officer or committee, in negation or mitigation of his liability.

Of course the possibility cannot be discounted that in certain instances the judge's expressed
apprehensions may be realized, that violence or intimidation, undue pressure or influence be brought
to bear on an employee under investigation or for that matter, on a person being interrogated by
another whom he has supposedly offended. In such an event, any admission or confession wrung from
the person under interrogation would be inadmissible in evidence, on proof of the vice or defect
vitiating consent, not because of a violation of Section 20, Article IV of the 1973 Constitution, but
simply on the general, incontestable proposition that involuntary or coerced statements may not in
justice be received against the makers thereof, and really should not be accorded any evidentiary
value at all.
G.R. No. L-56291 June 27, 1988
CRISTOPHER GAMBOA, petitioner,
vs.
HON. ALFREDO CRUZ, JUDGE of the Court of First Instance of Manila, Br. XXIX, respondent.
Rene V. Sarmiento for petitioner.
PADILLA, J.:
Petition for certiorari and prohibition, with prayer for a temporary restraining order, to annul and set
aside the order dated 23 October 1980 of the Court of First Instance of Manila, Branch XXIX, in
Criminal Case No. 47622, entitled "People of the Philippines, Plaintiff vs. Cristopher Gamboa y
Gonzales, Accused," and to restrain the respondent court from proceeding with the trial of the
aforementioned case.
Petitioner alleges that:
On 19 July 1979, at about 7:00 o'clock in the morning, he was arrested for vagrancy, without a warrant
of arrest, by Patrolman Arturo Palencia. Thereafter, petitioner was brought to Precinct 2, Manila, where
he was booked for vagrancy and then detained therein together with several others.
The following day, 20 July 1979, during the lineup of five (5) detainees, including petitioner,
complainant Erlinda B. Bernal pointed to petitioner and said, "that one is a companion." After the
Identification, the other detainees were brought back to their cell but petitioner was ordered to stay
on. While the complainant was being interrogated by the police investigator, petitioner was told to sit
down in front of her.
On 23 July 1979, an information for robbery was filed against the petitioner.
On 22 August 1979, petitioner was arraigned. Thereafter, hearings were held. On 2 April 1980, the
prosecution formally offered its evidence and then rested its case.
On 14 July 1980, petitioner, by counsel, instead of presenting his defense, manifested in open court
that he was filing a Motion to Acquit or Demurrer to Evidence. On 13 August 1980, petitioner filed said
Motion predicated on the ground that the conduct of the line-up, without notice to, and in the absence
of, his counsel violated his constitutional rights to counsel and to due process.
On 23 October 1980, the respondent court issued the following order (assailed in the petition at bar)
denying the Motion to Acquit:
For resolution is a motion to acquit the accused based on the grounds that the constitutional rights of
the said accused, to counsel and to due process, have been violated. After considering the allegations
and arguments in support of the said motion in relation to the evidence presented, the Court finds the
said motion to be without merit and, therefore, denies the same.
The hearing of this case for the purpose of presenting the evidence for the accused is hereby set on
November 28, 1980, at 8:30 o'clock in the morning.
Hence, the instant petition.
On 3 March 1981, the Court issued a temporary restraining order "effective as of this date and
continuing until otherwise ordered by the court". 1
Petitioner contends that the respondent judge acted in excess of jurisdiction and with grave abuse of
discretion, in issuing the assailed order. He insists that said order, in denying his Motion To Acquit, is
null and void for being violative of his rights to counsel and to due process. 2
We find no merit in the contentions of petitioner.

To begin with, the instant petition is one for certiorari, alleging grave abuse of discretion, amounting to
lack of jurisdiction, committed by the respondent judge in issuing the questioned order dated 23
October 1980.
It is basic, however, that for certiorari to lie, there must be a capricious, arbitrary and whimsical
exercise of power, the very antithesis of judicial prerogative in accordance with centuries of both civil
law and common law traditions. 3 To warrant the issuance of the extraordinary writ of certiorari, the
alleged lack of jurisdiction, excess thereof, or abuse of discretion must be so gross or grave, as when
power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal
hostility, or the abuse must be so patent as to amount to an evasion of positive duty, or to a virtual
refusal to perform a duty enjoined by law, or to act at all, in contemplation of law. 4 This is not the
situation in the case at bar. The respondent court considered petitioner's arguments as well as the
prosecution's evidence against him, and required him to present his evidence.
The rights to counsel and to due process of law are indeed two (2) of the fundamental rights
guaranteed by the Constitution, whether it be the 1973 or 1987 Constitution. In a democratic society,
like ours, every person is entitled to the full enjoyment of the rights guaranteed by the Constitution.
On the right to counsel, Sec. 20, Art. IV of the Bill of Rights of the 1973 Constitution, reads:
No person shall be compelled to be a witness against himself Any person under investigation for the
commission of an offense shall have the right to remain silent and to counsel, and to be informed of
such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall
be used against him. Any confession obtained in violation of this section shall be inadmissible in
evidence.
The same guarantee, although worded in a different manner, is included in the 1987 Constitution.
Section 12 (1, 2 & 3), Article III thereof provides:
Sec. 12 (1)
Any person under investigation for the commission of an offense shall have the right to
be informed of his right to remain silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of counsel.
(2)
No torture, force, violence, threat, intimidation, or any other means which vitiate the free will
shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of
detention are prohibited.
(3)
Any confession or admission obtained in violation of this or the preceding section shall be
inadmissible in evidence against him.
The right to counsel attaches upon the start of an investigation, i.e. when the investigating officer
starts to ask questions to elicit information and/or confessions or admissions from the
respondent/accused. At such point or stage, the person being interrogated must be assisted by
counsel to avoid the pernicious practice of extorting false or coerced admissions or confessions from
the lips of the person undergoing interrogation, for the commission of an offense.
Any person under investigation must, among other things, be assisted by counsel. The above-cited
provisions of the Constitution are clear. They leave no room for equivocation. Accordingly, in several
cases, this Court has consistently held that no custodial investigation shall be conducted unless it be
in the presence of counsel, engaged by the person arrested, or by any person in his behalf, or
appointed by the court upon petition either of the detainee himself, or by anyone in his behalf, and
that, while the right may be waived, the waiver shall not be valid unless made in writing and in the
presence of counsel.
As aptly observed, however, by the Solicitor General, the police line-up (at least, in this case) was not
part of the custodial inquest, hence, petitioner was not yet entitled, at such stage, to counsel. The
Solicitor General states:
When petitioner was Identified by the complainant at the police line-up, he had not been held yet to
answer for a criminal offense. The police line-up is not a part of the custodial inquest, hence, he was
not yet entitled to counsel. Thus, it was held that when the process had not yet shifted from the
investigatory to the accusatory as when police investigation does not elicit a confession the accused
may not yet avail of the services of his lawyer (Escobedo v. Illinois of the United States Federal
Supreme Court, 378 US 478, 1964). Since petitioner in the course of his Identification in the police

line-up had not yet been held to answer for a criminal offense, he was, therefore, not deprived of his
right to be assisted by counsel because the accusatory process had not yet set in. The police could not
have violated petitioner's right to counsel and due process as the confrontation between the State and
him had not begun. In fact, when he was Identified in the police line-up by complainant he did not give
any statement to the police. He was, therefore, not interrogated at all as he was not facing a criminal
charge. Far from what he professes, the police did not, at that stage, exact a confession to be used
against him. For it was not he but the complainant who was being investigated at that time. He "was
ordered to sit down in front of the complainant while the latter was being investigated" (par. 3.03,
Petition). Petitioner's right to counsel had not accrued. 6
Even under the constitutional guarantees obtaining in the United States, petitioner would have no
cause for claiming a violation of his rights to counsel and due process. In Kirby vs. Illinois, 7 the facts
of the case and the votes of the Justices therein are summarized as fellows:
After arresting the petitioner and a companion and bringing them to a police station, police officers
learned that certain items found in their possession had been stolen in a recent robbery. The robbery
victim was brought to the police station and immediately Identified the petitioner and his companion
as the robbers. No attorney was present when the Identification was made, and neither the petitioner
nor his companion had asked for legal assistance or had been advised of any right to the presence of
counsel. Several weeks later, the petitioner and his companion were indicted for the robbery. At trial in
an Illinois state court, the robbery victim testified that he had seen the petitioner and his companion
at the police station, and he pointed them out in the courtroom and Identified them as the robbers.
The petitioner and his companion were convicted, and the Illinois Appellate Court, First District,
affirmed the petitioner's conviction, holding that the constitutional rule requiring the exclusion of
evidence derived from out-of-court Identification procedures conducted in the absence of counsel did
not apply to pre-indictment Identifications (121 III App 2d 323, 257 NEE 2d 589).
On certiorari, the United States Supreme Court, although not agreeing on an opinion, affirmed. In an
opinion by STEWART, J., announcing the judgment of the court and expressing the view of four
members of the court, it was held that the constitutional right to counsel did not attach until judicial
criminal proceedings were initiated, and that the exclusionary rule relating to out-of-court
Identifications in the absence of counsel did not apply to Identification testimony based upon a police
station show-up which took place before the accused had been indicted or otherwise formally charged
with any criminal offense.
BURGER, Ch. J., concurring, joined in the plurality opinion and expressed his agreement that the right
to counsel did not attach until criminal charges were formally made against an accused.
POWELL, J., concurred in the result on the ground that the exclusionary rule should not be extended.
BRENNAN J., joined by DOUGHLAS and MARSHALL, JJ., dissented on the grounds that although
Supreme Court decisions establishing the exclusionary rule happened to involve post-indictment
Identifications, the rationale behind the rule was equally applicable to the present case.
WHITE, J., dissented on the grounds that Supreme Court decisions establishing the exclusionary rule
governed the present case. 8
Mr. Justice Stewart, expressing his view and that of three other members 9 of the Court, said:
In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell
v. Alabama, 287 US 45, 77 L Ed 158, 53 S Ct 55, 84 ALR 527, it has been firmly established that a
person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that
adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson
v. Zerbst, 304 US 458, 82 L Ed 1461, 58 S Ct 1019, 146 ALR 357; Hamilton v. Alabama, 368 US 52, 7 L
Ed 2d 114, 82 S Ct 157; Gideon v. Wainwright, 372 US 335, 9 L Ed 2d 799, 83 S Ct 792, 93 ALR 2d 733;
White v. Maryland, 373 US 59, 10 L Ed 2d 193, 83 S Ct 1050; Messiah v. United States, 377 US 201, 12
L Ed 246, 84 S Ct 1199; United States v. Wade, 388 US 218, 18 L Ed 2d 1149, 87 S Ct 1926; Gilbert v.
California, 388 US 263, 18 L Ed 2d 1178, 87 S Ct 1951; Coleman v. Alabama, 399 US 1, 26 L Ed 2d 387,
90 S Ct. 1999.
This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the
trial itself. The Powell case makes clear that the right attaches at the time of arraignment and the
Court has recently held that it exists also at the time of a preliminary hearing. Coleman v. Alabama,
supra. But the point is that, while members of the court have differed as to existence of the right to

counsel in the contexts of some of the above cases, all of those cases have involved points of time at
or after the initiation of adversary judicial criminal proceedings whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment. (Emphasis supplied). 10
As may be observed, the 1973 and 1987 Philippine Constitutions go farther and beyond the guarantee
of the right to counsel under the Sixth and Fourteenth Amendments to the U.S. Constitution. For while,
under the latter, the right to counsel "attaches only at or after the time that adversary judicial
proceedings have been initiated against him (the accused)," under the 1973 and 1987 Philippine
Constitutions, the right to counsel attaches at the start of investigation against a respondent and,
therefore, even before adversary judicial proceedings against the accused have begun.
Given the clear constitutional intent in the 1973 and 1987 Constitutions, to extend to those under
police investigation the right to counsel, this occasion may be better than any to remind police
investigators that, while the Court finds no real need to afford a suspect the services of counsel during
a police line-up, the moment there is a move or even an urge of said investigators to elicit admissions
or confessions or even plain information which may appear innocent or innocuous at the time, from
said suspect, he should then and there be assisted by counsel, unless he waives the right, but the
waiver shall be made in writing and in the presence of counsel.
On the right to due process, the Court finds that petitioner was not, in any way, deprived of this
substantive and constitutional right, as he was duly represented by a member of the Bar. He was
accorded all the opportunities to be heard and to present evidence to substantiate his defense; only
that he chose not to, and instead opted to file a Motion to Acquit after the prosecution had rested its
case. What due process abhors is the absolute lack of opportunity to be heard. 11 The case at bar is
far from this situation.
In any event, certiorari and prohibition are not the proper remedies against an order denying a Motion
To Acquit. Section 1, Rule 117 of the Rules of Court provides that, upon arraignment, the defendant
shall immediately either move to quash the complaint or information or plead thereto, or do both and
that, if the defendant moves to quash, without pleading, and the motion is withdrawn or overruled, he
should immediately plead, which means that trial must proceed. If, after trial on the merits, judgment
is rendered adversely to the movant (in the motion to quash), he can appeal the judgment and raise
the same defenses or objections (earlier raised in his motion to quash) which would then be subject to
review by the appellate court.
An order denying a Motion to Acquit (like an order denying a motion to quash) is interlocutory and not
a final order. It is, therefore, not appealable. Neither can it be the subject of a petition for certiorari.
Such order of denial may only be reviewed, in the ordinary course of law, by an appeal from the
judgment, after trial. As stated in Collins vs. Wolfe, 12 and reiterated in Mill vs. Yatco, 13 the accused,
after the denial of his motion to quash, should have proceeded with the trial of the case in the court
below, and if final judgment is rendered against him, he could then appeal, and, upon such appeal,
present the questions which he sought to be decided by the appellate court in a petition for certiorari.
In Acharon vs. Purisima, 14 the procedure was well defined, thus:
Moreover, when the motion to quash filed by Acharon to nullify the criminal cases filed against him
was denied by the Municipal Court of General Santos his remedy was not to file a petition for certiorari
but to go to trial without prejudice on his part to reiterate the special defenses he had invoked in his
motion and, if, after trial on the merits, an adverse decision is rendered, to appeal therefrom in the
manner authorized by law. This is the procedure that he should have followed as authorized by law
and precedents. Instead, he took the usual step of filing a writ of certiorari before the Court of First
Instance which in our opinion is unwarranted it being contrary to the usual course of law. 15
Conformably with the above rulings, whether or not petitioner was, afforded his rights to counsel and
to due process is a question which he could raise, as a defense or objection, upon the trial on the
merits, and, if that defense or objection should fail, he could still raise the same on appeal.
On the other hand, if a defendant does not move to quash the complaint or information before he
pleads, he shall be taken to have waived all objections which are grounds for a motion to quash,
except where the complaint or information does not charge an offense, or the court is without
jurisdiction of the same. 16

Here, petitioner filed a Motion To Acquit only after the prosecution had presented its evidence and
rested its case. Since the exceptions, above-stated, are not applicable, petitioner is deemed to have
waived objections which are grounds for a motion to quash.
Besides, the grounds relied upon by petitioner in his Motion to Acquit are not among the grounds
provided in Sec. 2, Rule 117 of the Rules of Court for quashing a complaint or information.
Consequently, the lower court did not err in denying petitioner's Motion to Acquit.
WHEREFORE, the petition is DISMISSED. The temporary restraining order issued on 3 March 1981 is
LIFTED. The instant case is remanded to the respondent court for further proceedings to afford the
petitioner-accused the opportunity to present evidence on his behalf.
This decision is immediately executory. With costs against the petitioner.
SO ORDERED.
Article 3, SECTION 12, Philippines Constitution (RIGHTS UNDER CUSTODIAL
INVESTIGATION)
----- RIGHTS UNDER SECTION 12: ORIGINS AND RATIONALE ----1. Magtoto v. Manguera
murder; admissibility of confession A confession obtained from a person under investigation for the
commission of an offense, who has not been informed of his right to silence and right to counsel is
INADMISSIBLE as evidence; Miranda and Escobedo
----- WHEN THE RIGHTS BECOME AVAILABLE ----2. People v. Taylaran
accidental killing
Right to silence and to counsel NOT applicable where no written confession was to be presented in
evidence as a result of a formal custodial investigation
3. Galman v. Pamaran
assassination of Ninoy; Agrava Commission The fact that the framers of the Constitution did not
use the word custodial investigation shows that it did not entirely adopt the Miranda Doctrine; The
accused are also entitled to be admonished of their constitutional right to remain silent, to counsel and
be informed that any or all statements given by them may be used against them; This also applies in
other cases, not just those criminal in nature
4. People v. Ayson
irregularity in the sale of plane tickets Right against self incrimination is accorded to every person
who gives evidence, whether voluntarily or under compulsion of subpoena in any proceeding. The
right is NOT to be compelled to be a witness against himself and NOT a prohibition of inquiry; The right
can only be claimed when the specific question, incriminatory in character, is actually put to the
witness; It does not give the right to refuse a subpoena. This right must be claimed, it is not
automatically operational | Miranda rights | Custodial investigation questioning initiated by law
enforcement officers after a person has been taken away into custody or otherwise deprived of his
freedom of action in anyway; A defendant on a trial or preliminary investigation is NOT under custodial
investigation; Accused
RIGHTS: BEFORE THE CASE IS FILED IN COURT
(or with public prosecutor for preliminary investigation; taken into custody)
a. right to remain silent
b. right to counsel
c. right to be informed
d. right to have evidence obtained in violation of those above rejected
RIGHTS: AFTER THE CASE IS FILED IN COURT
a. right to refuse to be a witness

b. not to have any prejudice whatsoever result to him because of such refusal
c. right to testify in his own behalf , subject to cross examination by the prosecution
d. while testifying: to refuse to answer an specific question which tends to incriminate him
for some crime other that which he is being prosecuted
----- POLICE LINE-UPS; PARAFFIN TEST; SIGNATURE ----5. Gamboa v. Cruz
vagrancy The right to counsel attaches at the start of the investigation (when investigating officers
elicit information/ admission/ confession. Police line-up not part of the inquest.
6. People v. Dimaano
robbery with homicide A police line-up is not part of the custodial inquest so at this stage, they
have no right to counsel yet. They are not being held to answer for criminal offense for which they are
being charged or convicted.
----- RIGHT TO COUNSEL ----7. Estacio v. Sandiganbayan
- estafa thru falsification When the waiver of the right to remain silent and assistance by counsel was
not made in the presence of counsel, the defect was cured when the lawyer arrived at the closing
stage of the interrogation, read the statement and talked to the accused before the latter signed it.
8. People v. De Jesus
robbery with homicide Right to counsel attaches upon the start of the investigation; Custodial
investigation is the stage where the police investigation is no longer a general inquiry into an unsolved
crime but has began to focus on the particular suspect who had been taken into custody; questions
initiated when a person is taken into custody and deprived of his freedom of action
9. People v. Lucero
extrajudicial confession; lawyer was away when accused gave his uncounselled confession - doctrine
same as above
----- RIGHT TO BE INFORMED ----10. People v. Pinlac
robbery The constitutional right of the accused to be informed of his rights to remain silent and to
counsel contemplates the transmission of meaningful information and not just a mere ceremonial and
perfunctory recitation of an abstract constitutional principle. Police officer is duty bound not just to
recite
the rights; he must explain it as well; Waiver MUST BE MADE in the presence of counsel
----- WAIVER ----11. People v. Rous
robbery with homicide
A confession is admissible until the accused successfully proves that it was given as a result of
violence, intimidation, threat or promise of reward of leniency; Presumption that a confession was
made
deliberately and knowingly.
G.R. Nos. 111771-77
November 9, 1993
ANTONIO L. SANCHEZ, petitioner,
vs.
The Honorable HARRIET O. DEMETRIOU (in her capacity as Presiding Judge of Regional Trial
Court, NCR, Branch 70, Pasig), The Honorable FRANKLIN DRILON (in his capacity as
Secretary of Justice), JOVENCITO R. ZUO, LEONARDO C. GUIYAB, CARLOS L. DE LEON,
RAMONCITO C. MISON, REYNALDO J. LUGTU, and RODRIGO P. LORENZO, the last six

respondents in their official capacities as members of the State Prosecutor's Office),

respondents.
Mario E. Ongkiko and Marciano P. Brion, Jr. for petitioner.
The Solicitor General for respondents
CRUZ, J.:
There is probably no more notorious person in the country today than Mayor Antonio L. Sanchez of
Calauan, Laguna, who stands accused of an unspeakable crime. On him, the verdict has already been
rendered by many outraged persons who would immediately impose on him an angry sentence. Yet,
for all the prejudgments against him, he is under our Constitution presumed innocent as long as the
contrary has not been proved. Like any other person accused of an offense, he is entitled to the full
and vigilant protection of the Bill of Rights.
Sanchez has brought this petition to challenge the order of the respondent judge denying his motion
to quash the informations for rape with homicide filed against him and six other persons. We shall
treat it as we would any other suit filed by any litigant hoping to obtain a just and impartial judgment
from this Court.
The pertinent facts are as follows:
On July 28, 1993, the Presidential Anti-Crime Commission requested the filing of appropriate charges
against several persons, including the petitioner, in connection with the rape-slay of Mary Eileen
Sarmenta and the killing of Allan Gomez.
Acting on this request, the Panel of State Prosecutors of the Department of Justice conducted a
preliminary investigation on August 9, 1993. Petitioner Sanchez was not present but was represented
by his counsel, Atty. Marciano Brion, Jr.
On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to the petitioner requesting him
to appear for investigation at Camp Vicente Lim in Canlubang, Laguna. It was served on Sanchez in
the morning of August 13,1993, and he was immediately taken to the said camp.
At a confrontation that same day, Sanchez was positively identified by Aurelio Centeno, and SPO III
Vivencio Malabanan, who both executed confessions implicating him as a principal in the rape-slay of
Sarmenta and the killing of Gomez. The petitioner was then placed on "arrest status" and taken to the
Department of Justice in Manila.
The respondent prosecutors immediately conducted an inquest upon his arrival, with Atty. Salvador
Panelo as his counsel.
After the hearing, a warrant of arrest was served on Sanchez. This warrant was issued on August 13,
1993, by Judge Enrico A. Lanzanas of the Regional Trial Court of Manila, Branch 7, in connection with
Criminal Cases Nos. 93-124634 to 93-124637 for violation of Section 8, in relation to Section 1, of R.A.
No. 6713. Sanchez was forthwith taken to the CIS Detention Center, Camp Crame, where he remains
confined.
On August 16, 1993, the respondent prosecutors filed with the Regional Trial Court of Calamba,
Laguna, seven informations charging Antonio L. Sanchez, Luis Corcolon, Rogelio Corcolon, Pepito
Kawit, Baldwin Brion, Jr., George Medialdea and Zoilo Ama with the rape and killing of Mary Eileen
Sarmenta.
On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court issued a warrant for the arrest of all
the accused, including the petitioner, in connection with the said crime.
The respondent Secretary of Justice subsequently expressed his apprehension that the trial of the said
cases might result in a miscarriage of justice because of the tense and partisan atmosphere in Laguna
in favor of the petitioner and the relationship of an employee, in the trial court with one of the
accused. This Court thereupon ordered the transfer of the venue of the seven cases to Pasig, Metro
Manila, where they were raffled to respondent Judge Harriet Demetriou.
On September 10, 1993, the seven informations were amended to include the killing of Allan Gomez
as an aggravating circumstance.
On that same date, the petitioner filed a motion to quash the informations substantially on the
grounds now raised in this petition. On September 13, 1993, after oral arguments, the respondent

judge denied the motion. Sanchez then filed with this Court the instant petition for certiorari and
prohibition with prayer for a temporary restraining order/writ of injunction.
The petitioner argues that the seven informations filed against him should be quashed because: 1) he
was denied the right to present evidence at the preliminary investigation; 2) only the Ombudsman had
the competence to conduct the investigation; 3) his warrantless arrest is illegal and the court has
therefore not acquired jurisdiction over him, 4) he is being charged with seven homicides arising from
the death of only two persons; 5) the informations are discriminatory because they do not include
Teofilo Alqueza and Edgardo Lavadia; and 6) as a public officer, he can be tried for the offense only by
the Sandiganbayan.
The respondents submitted a Comment on the petition, to which we required a Reply from the
petitioner within a non-extendible period of five days. 1 The Reply was filed five days late. 2 The Court
may consider his non-compliance an implied admission of the respondents' arguments or a loss of
interest in prosecuting his petition, which is a ground for its dismissal. Nevertheless, we shall disregard
this procedural lapse and proceed to discuss his petition on the basis of the arguments before us.
The Preliminary Investigation.
The records of the hearings held on August 9 and 13, 1993, belie the petitioner's contention that he
was not accorded the right to present counter-affidavits.
During the preliminary investigation on August 9, 1993, the petitioner's counsel, Atty. Marciano Brion,
manifested that his client was waiving the presentation of a counter-affidavit, thus:
Atty. Brion, Jr.:
[W]e manifest that after reviewing them there is nothing to rebut or countermand all these statements
as far as Mayor Sanchez is concerned, We are not going to submit any counter-affidavit.
ACSP Zuo to Atty. Brion:
xxx

xxx

xxx

Q. So far, there are no other statements.

A. If there is none then, we will not submit any counter-affidavit because we believe there is nothing to
rebut or countermand with all these statements.
Q.

So, you are waiving your submission of counter-affidavit?

A. Yes, your honor, unless there are other witnesses who will come up soon. 3
Nonetheless, the head of the Panel of Prosecutors, respondent Jovencito Zuo, told Atty. Brion that he
could still file a counter-affidavit up to August 27, 1993. No such counter-affidavit was filed.
During the hearing on August 1'3, 1993, respondent Zuo furnished the petitioner's counsel, this time
Atty. Salvador Panelo, with copies of the sworn statements of Centeno and Malabanan, and told him he
could submit counter-affidavits on or before August 27, 1993. The following exchange ensued:
ACSP Zuo:
For the record, we are furnishing to you the sworn statement of witness Aurelio Centeno y Roxas and
the sworn statement of SPO3 Vivencio Malabanan y Angeles.
Do I understand from you that you are again waiving the submission of counter-affidavit?
Atty. Panelo:
Yes.
ACSP Zuo:
So, insofar as the respondent, Mayor Antonio Sanchez is concerned, this case is submitted for
resolution. 4
On the other hand, there is no support for the petitioner's subsequent manifestation that his counsel,
Atty. Brion, was not notified of the inquest held on August 13, 1993, and that he was not furnished with

the affidavits sworn to on that date by Vivencio Malabanan and Aurelio Centeno, or with their
supplemental affidavits dated August 15, 1993. Moreover, the above-quoted excerpt shows that the
petitioner's counsel at the hearing held on August 13, 1993, was not Atty. Brion but Atty. Panelo.
The petitioner was present at that hearing and he never disowned Atty. Panelo as his counsel. During
the entire proceedings, he remained quiet and let this counsel speak and argue on his behalf. It was
only in his tardy Reply that he has suddenly bestirred himself and would now question his
representation by this lawyer as unauthorized and inofficious.
Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides that if the respondent cannot be
subpoenaed or, if subpoenaed, does not submit counter-affidavits, the investigating officer shall base
his resolution on the evidence presented by the complainant.
Just as the accused may renounce the right to be present at the preliminary investigation 5, so may he
waive the right to present counter-affidavits or any other evidence in his defense.
At any rate, it is settled that the absence of a preliminary investigation does not impair the validity of
the information or otherwise render the same defective and neither does it affect the jurisdiction of
the court over the case or constitute a ground for quashing the information. 6
If no preliminary investigation has been held, or if it is flawed, the trial court may, on motion of the
accused, order an investigation or reinvestigation and hold the proceedings in the criminal case in
abeyance. 7 In the case at bar, however, the respondent judge saw no reason or need for such a step.
Finding no arbitrariness in her factual conclusions, we shall defer to her judgment.
Jurisdiction of the Ombudsman
Invoking the case of Deloso v. Domingo, 8 the petitioner submits that the proceedings conducted by
the Department of Justice are null and void because it had no jurisdiction over the case. His claim is
that it is the Office of the Ombudsman that is vested with the power to conduct the investigation of all
cases involving public officers like him, as the municipal mayor of Calauan, Laguna.
The Ombudsman is indeed empowered under Section 15, paragraph (1) of R.A. 6770 to investigate
and prosecute, any illegal act or omission of any public official. However, as we held only two years
ago in the case of Aguinaldo v. Domagas, 9 this authority "is not an exclusive authority but rather a
shared or concurrent authority in. respect of the offense charged."
Petitioners finally assert that the information and amended information filed in this case needed the
approval of the Ombudsman. It is not disputed that the information and amended information here did
not have the approval of the Ombudsman. However, we do not believe that such approval was
necessary at all. In Deloso v. Domingo, 191 SCRA. 545 (1990), the Court held that the Ombudsman has
authority to investigate charges of illegal or omissions on the part of any public official, i.e., any crime
imputed to a public official. It must, however, be pointed out that the authority of the Ombudsman to
investigate "any [illegal] act or omission of any public official" (191 SCRA at 550) is not an exclusive
authority but rather a shared or concurrent authority in respect of the offense here charged, i.e., the
crime of sedition. Thus, the non-involvement of the office of the Ombudsman in the present case does
not have any adverse legal consequence upon the authority the panel of prosecutors to file and
prosecute the information or amended information.
In fact, other investigatory agencies, of the government such as the Department of Justice, in
connection with the charge of sedition, 10 and the Presidential Commission on Good Government, in
ill-gotten wealth cases, 11 may conduct the investigation,
The Arrest
Was petitioner Sanchez arrested on August 13, 1993?
"Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person into
custody in order that he may be bound to answer for the commission of an offense. Under Section 2 of
the same Rule, an arrest is effected by an actual restraint of the person to be arrested or by his
voluntary submission to the custody of the person making the arrest.
Application of actual force, manual touching of the body, physical restraint or a formal declaration of
arrest is not, required. It is enough that there be an intent on the part of one of the parties to arrest

the other and an intent onthe part of the other to submit, under the belief and impression that
submission is necessary. 12
The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by virtue of a letter-invitation
issued by PNP Commander Rex Piad requesting him to appear at the said camp for investigation.
In Babst v. National Intelligence Board 13 this Court declared:
Be that as it may, it is not idle to note that ordinarily, an invitation to attend a hearing and answer
some questions, which the person invited may heed or refuse at his pleasure, is not illegal or
constitutionally objectionable. Under certain circumstances, however, such an invitation can easily
assume a different appearance. Thus, where the invitation comes from a powerful group composed
predominantly of ranking military officers issued at a time when the country has just emerged from
martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely
been lifted, and the designated interrogation site is a military camp, the same can be easily taken, not
as a strictly voluntary invitation which it purports to be, but as an authoritative command which one
can only defy at his peril. . . . (Emphasis supplied)
In the case at bar, the invitation came from a high-ranking military official and the investigation of
Sanchez was to be made at a military camp. Although in the guise of a request, it was obviously a
command or an order of arrest that the petitioner could hardly he expected to defy. In fact, apparently
cowed by the "invitation," he went without protest (and in informal clothes and slippers only) with the
officers who had come to fetch him.
It may not be amiss to observe that under R.A. No. 7438, the requisites of a "custodial investigation"
are applicable even to a person not formally arrested but merely "invited" for questioning.
It should likewise be noted that at Camp Vicente Lim, the petitioner was placed on "arrest status" after
he was pointed to by Centeno and Malabanan as the person who first raped Mary Eileen Sarmenta.
Respondent Zuo himself acknowledged during the August 13, 1993 hearing that, on the basis of the
sworn statements of the two state witnesses, petitioner had been "arrested."
We agree with the petitioner that his arrest did not come under Section 5, Rule 113 of the Rules of
Court, providing as follows:
Sec. 5.Arrest without warrant; when lawful. A peace officer or a private person may, without a
warrant, arrest a person:
(a)
When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(b)
When an offense has in fact just been committed and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and
(c)
When the person to be arrested is a prisoner who has escapes from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
It is not denied that the arresting officers were not present when the petitioner allegedly participated
in the killing of Allan Gomez and the rape-slay of Mary Eileen Sarmenta. Neither did they have any
personal knowledge that the petitioner was responsible therefor because the basis of the arrest was
the sworn statements of Centeno and Malabanan. Moreover, as the rape and killing of Sarmenta
allegedly took place on June 28-June 29, 1993, or forty-six days before the date of the arrest, it cannot
be said that the offense had "in fact just been committed" when the petitioner was arrested.
The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the Regional Trial
Court lawfully acquired jurisdiction over the person of the petitioner by virtue of the warrant of arrest it
issued on August 26, 1993 against him and the other accused in connection with the rape-slay cases.
It was belated, to be sure, but it was nonetheless legal.
Even on the assumption that no warrant was issued at all, we find that the trial court still lawfully
acquired jurisdiction over the person of the petitioner. The rule is that if the accused objects to the
jurisdiction of the court over his person, he may move to quash the information, but only on that
ground. If, as in this case, the accused raises other grounds in the motion to quash, he is deemed to
have waived that objection and to have submitted his person to the jurisdiction of that court. 14

The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge Lanzanas
issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal Cases Nos. 93124634 to 93-124637 for violation of R.A No. 6713. 15 Pending the issuance of the warrant of arrest for
the rape-slay cases, this first warrant served as the initial justification for his detention.
The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the
corresponding warrant of arrest, against a person invalidly detained will cure the defect of that
detention or at least deny him the right to be released because of such defect. * Applicable by analogy
to the case at bar is Rule 102 Section 4 of the Rules of Court that:
Sec, 4.When writ is not allowed or discharge authorized. If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court or judge or by
virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of any informality or
defect in the process, judgment, or order. Nor shall, anything in this rule be held to authorize the
discharge of a person charged with or convicted of an offense in the Philippines or of a person
suffering imprisonment under lawful judgment.
In one case, 16 the petitioner, sued on habeas corpus on the ground that she had been arrested by
virtue of a John Doe warrant. In their return, the respondents declared that a new warrant specifically
naming her had been issued, thus validating her detention. While frowning at the tactics of the
respondents, the Court said:
The, case has, indeed, become moot and academic inasmuch as the new warrant of arrest complies
with the requirements of the Constitution and the Rules of Court regarding the particular description of
the person to be arrested. While the first warrant was unquestionably void, being a general warrant,
release of the petitioner for that reason will be a futile act as it will be followed by her immediate rearrest pursuant to the new and valid warrant, returning her to the same prison she will just have left.
This Court will not participate in such a meaningless charade.
The same doctrine has been consistently followed by the Court, 17 more recently in the Umil case. 18
The Informations
The petitioner submits that the seven informations charging seven separate homicides are absurd
because the two victims in these cases could not have died seven times.
This argument was correctly refuted by the Solicitor General in this wise:
Thus, where there are two or more offenders who commit rape, the homicide committed on the
occasion or by reason of each rape, must be deemed as a constituent of the special complex crime of
rape with homicide. Therefore, there will be as many crimes of rape with homicide as there are rapes
committed.
In effect, the presence of homicide qualifies the crime of rape, thereby raising its penalty to the
highest degree. Thus, homicide committed on the occasion or by reason of rape, loses its character as
an independent offense, but assumes a new character, and functions like a qualifying circumstance.
However, by fiction of law, it merged with rape to constitute an constituent element of a special
complex crime of rape with homicide with a specific penalty which is in the highest degree, i.e. death
(reduced to reclusion perpetua with the suspension of the application of the death penalty by the
Constitution).
It is clearly provided in Rule 110 of the Rules of Court that:
Sec. 13.
Duplicity of offense. A complaint or information must charge but one offense, except only
in those cases in which existing laws prescribe a simple punishment for various offenses.
Rape with homicide comes within the exception under R.A. 2632 and R.A. 4111, amending the Revised
Penal Code.
The petitioner and his six co-accused are not charged with only one rape committed by him in
conspiracy with the other six. Each one of the seven accused is charged with having himself raped
Sarmenta instead of simply helping Sanchez in committing only one rape. In other words, the
allegation of the prosecution is that the girl was raped seven times, with each of the seven accused

taking turns in abusing her with the assistance of the other six. Afterwards, their lust satisfied, all
seven of them decided to kill and thus silence Sarmenta.
Every one of the seven accused is being charged separately for actually raping Sarmenta and later
killing her instead of merely assisting the petitioner in raping and then slaying her. The separate
informations filed against each of them allege that each of the seven successive rapes is complexed
by the subsequent slaying of Sarmenta and aggravated by the killing of Allan Gomez by her seven
attackers. The separate rapes were committed in succession by the seven accused, culminating in the
slaying of Sarmenta.
It is of course absurd to suggest that Mary Eileen Sarmenta and Allan Gomez were killed seven times,
but the informations do not make such a suggestion. It is the petitioner who does so and is thus hoist
by his own petard.
The Alleged Discrimination
The charge of discrimination against the petitioner because of the non-inclusion of Teofilo Alqueza and
Edgardo Lavadia in the informations must also be dismissed.
While the prosecuting officer is required by law to charge all those who in his opinion, appear to be
guilty, he nevertheless cannot be compelled to include in the information a person against whom he
believes no sufficient evidence of guilt exists. 19 The appreciation of the evidence involves the use of
discretion on the part of the prosecutor, and we do not find in the case at bar a clear showing by the
petitioner of a grave abuse of such discretion. 20
The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special
cases by the President of the Philippines. 21 But even this Court cannot order the prosecution of a
person against whom the prosecutor does not find sufficient evidence to support at least a prima facie
case. The courts try and absolve or convict the accused but as a rule have no part in the initial
decision to prosecute him.
The possible exception is where there is an unmistakable showing of a grave abuse of discretion that
will justify judicial intrusion into the precincts of the executive. But in such a case the proper remedy
to call for such exception is a petition for mandamus, not certiorari or prohibition. 22 Moreover, before
resorting to this relief, the party seeking the inclusion of another person as a co-accused in the same
case must first avail itself of other adequate remedies such as the filing of a motion for such inclusion.
23
At any rate, it is a preposterous contention that because no charges have been filed against Alqueza
and Lavadia, the charges against the petitioner and his co-accused should also be dropped.
Jurisdiction of the Sandiganbayan
The petitioner argued earlier that since most of the accused were incumbent public officials or
employees at the time of the alleged commission of the crimes, the cases against them should come
under the jurisdiction of the Sandiganbayan and not of the regular courts. This contention was
withdrawn in his Reply but we shall discuss it just the same for the guidance of all those concerned.
Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D. No.1861, provides:
Sec. 4.Jurisdiction. The Sandiganbayan shall exercise:
a)

Exclusive original jurisdiction in all cases involving:

(1)
Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code:
(2)
Other offenses or felonies committed by public officers and employees in relation to their office,
including those employed in government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law is higher than prision correccional
or imprisonment for six (6) years, or a fine of P6,000.00. . . . (Emphasis supplied)
The crime of rape with homicide with which the petitioner stands charged obviously does not fall
under paragraph (1), which deals with graft and corruption cases. Neither is it covered by paragraph
(2) because it is not an offense committed in relation to the office of the petitioner.

In Montilla v, Hilario, 24 this Court described the "offense committed in relation to the office" as
follows:
[T]he relation between the crime and the office contemplated by the Constitution is, in our opinion,
direct and not accidental. To fall into the intent of the Constitution, the relation has to be such that, in
the legal sense, the offense cannot exist without the office. In other words, the office must be a
constituent element of the crime as defined in the statute, such as, for instance, the crimes defined
and punished in Chapter Two to Six, Title Seven, of the Revised Penal Code.
Public office is not of the essence of murder. The taking of human life is either murder or homicide
whether done by a private citizen or public servant, and the penalty is the same except when the
perpetrator. being a public functionary took advantage of his office, as alleged in this case, in which
event the penalty is increased.
But the use or abuse of office does not adhere to the crime as an element; and even as an
aggravating circumstance, its materiality arises not from the allegations but on the proof, not from the
fact that the criminals are public officials but from the manner of the commission of the crime
There is no direct relation between the commission of the crime of rape with homicide and the
petitioner's office as municipal mayor because public office is not an essential element of the crime
charged. The offense can stand independently of the office. Moreover, it is not even alleged in the
information that the commission of the crime charged was intimately connected with the performance
of the petitioner's official functions to make it fall under the exception laid down in People v. Montejo.
25
In that case, a city mayor and several detectives were charged with murder for the death of a suspect
as a result of a "third degree" investigation held at a police substation. The appearance of a senator as
their counsel was questioned by the prosecution on the ground that he was inhibited by the
Constitution from representing them because they were accused of an offense committed in relation
to their office. The Court agreed. It held that even if their position was not an essential ingredient of
the offense, there was nevertheless an intimate connection between the office and the offense, as
alleged in the information, that brought it within the definition of an offense "committed in relation to
the public office."
As Chief Justice Concepcion said:
It is apparent from these allegations that, although public office is not an element of the crime of
murder in abstract, as committed by the main respondents herein, according to the amended
information, the offense therein charged is intimately connected with their respective offices and was
perpetrated while they were in the performance, though improper or irregular, of their official
functions. Indeed they had no personal motive to commit the crime and they would not have
committed it had they not held their aforesaid offices. The co-defendants of respondent Leroy S.
Brown, obeyed his instructions because he was their superior officer, as Mayor of Basilan City.
(Emphasis supplied).
We have read the informations in the case at bar and find no allegation therein that the crime of rape
with homicide imputed to the petitioner was connected with the discharge of his functions as
municipal mayor or that there is an "intimate connection" between the offense and his office. It follows
that the said crime, being an ordinary offense, is triable by the regular courts and not the
Sandiganbayan.
Conclusion
As above demonstrated, all of the grounds invoked by the petitioner are not supported by the facts
and the applicable law and jurisprudence. They must, therefore, all be rejected. In consequence, the
respondent judge, who has started the trial of the criminal cases against the petitioner and his coaccused, may proceed therewith without further hindrance.
It remains to stress that the decision we make today is not a decision on the merits of the criminal
cases being tried below. These will have to be decided by the respondent judge in accordance with the
evidence that is still being received. At this time, there is yet no basis for judgment, only uninformed
conjecture. The Court will caution against such irrelevant public speculations as they can be based
only on imperfect knowledge if not officious ignorance.

WHEREFORE, the petition is DISMISSED. The respondent judge is DIRECTED to continue with the trial
of Criminal Cases Nos. 101141, 101142, 101143, 101144, 101145, 101146 and 101147 and to decide
them with deliberate dispatch.
SO ORDERED.
REQUISITIES FOR A VALID SEARCH
Requisites for Valid Search Warrant and Warrant of Arrest (Sec. 2. Art. III)
1. It must be issued upon probable cause;
2. The probable cause must be determined personally by the judge himself;
3. The determination of the existence of probable cause must be made after examination by the judge
of the complainant and the witnesses he may produce; and
4. The warrant must particularly describe the place to be searched, and the persons or things to be
seized.
WARRANTLESS ARREST
(Speech of Sen. MIRIAM DEFENSOR SANTIAGO at the Philippine National Police
Headquarters, Camp Crame, on March 13, 2006.)
Under the Rules of Court, Rule 113, Section 5, a warrantless arrest, also known as "citizens arrest," is
lawful under three circumstances:
1. When, in the presence of the policeman, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense. This is the "in flagrante delicto" rule.
2. When an offense has just been committed, and he has probable cause to believe, based on personal
knowledge of facts or circumstances, that the person to be arrested has committed it. This is the "hot
pursuit" arrest rule.
3. When the person to be arrested is a prisoner who has escaped from a penal establishment.
In flagrante delicto warrantless arrest should comply with the element of immediacy between the time
of the offense and the time of the arrest. For example, in one case the Supreme Court held that when
the warrantless arrest was made three months after the crime was committed, the arrest was
unconstitutional and illegal.
If an accused is caught in flagrante delicto, the warrantless arrest is lawful and the evidence obtained
in a search incidental to the arrest is admissible as evidence. One common example of a warrantless
arrest is a buybust operation.
An offense is committed in the presence or within the view of an officer when the officer sees the
offense, although at a distance; or hears the disturbance that it creates and proceeds at once to the
scene.
If the warrantless arrest turns out to be unlawful, still the court is capable of assuming jurisdiction over
the accused. Any objection to the courts jurisdiction is waived, when the person arrested submits to
arraignment without any objection.
The test of in flagrante delicto arrest is that the suspect was acting under circumstances reasonably
tending to show that he has committed or is about to commit a crime. Evidence of guilt is not
necessary. It is enough if there is probable cause. For example, if there was a prior arrangement to
deliver shabu inside a hotel, the immediate warrantless arrest of the accused upon his entry in the
hotel room is valid. By contrast, the discovery of marked money on the accused does not justify a
warrantless arrest.
Under the rule on "hot pursuit" arrest, the policeman should have personal knowledge that the suspect
committed the crime. The test is probable cause, which the Supreme Court has defined as "an actual
belief or reasonable grounds of suspicion."
Under this rule, the policeman does not need to actually witness the execution or acts constituting the
offense. But he must have direct knowledge, or view of the crime, right after its commission.

* Mentally disabled persons on emergency grounds.

* Arrest based on unreasonable suspicion.
The Constitution does not forbid warrantless search; it only forbids unreasonable search. The Rules of
Court, Rule 126, Section 13, allows a warrantless search, provided it is incident to a lawful arrest. The
law provides: "A person lawfully arrested maybe searched for dangerous weapons or anything which
may have been used or constitute proof in the commission of an offense without a search warrant."
To be valid, the search must have been conducted at about the time of the arrest or immediately
thereafter, and only at the place where the suspect was arrested, or the premises or surroundings
under his immediate control.
Any evidence obtained during an illegal search (even if it confirms initial suspicion of felonious
activity) is considered absolutely inadmissible for any purpose in any proceeding, since it is considered
to be the fruit of a poisonous tree. Since the Anti-Wiretapping Law provides that an illegal wiretap is
inadmissible for any purpose in any proceeding, being the fruit of a poisonous tree, do you wonder
how the alleged Garci tape could be possibly considered admissible? I wonder too.
A valid arrest must precede the search, not vice versa. One exception to the rule on search is waiver
by the suspect. For example, where the shabu was discovered by virtue of a valid warrantless search,
and the accused himself freely gave his consent to the search, the prohibited drugs found as a result
were inadmissible as evidence.
Another example, is the stop-and-frisk rule. A warrantless search is allowed if the officers had
reasonable or probable cause to believe before the search that either the motorist is a law offender, or
that they did find the evidence pertaining to the commission of a crime in the vehicle to be searched.
The rule for checkpoints is that the inspection of the vehicle should be limited to a visual search. The
vehicle itself should not be searched, and its occupants should not be subjected to a body search.
* Seizure of prohibited articles in plain view. The seizure should comply with the following
requirements:
(1) A prior valid intrusion based on a valid warrantless arrest, in which the police are legally present in
the pursuit of their official duties.
(2) The evidence was inadvertently discovered by the police who had the right to be where they are.
(3) The evidence must be immediately apparent.
(4) Plain view justified mere seizure of evidence without further search.
As a lawyer and a former RTC judge, I am a very strong law and-order person. The people upholding
law in society are policemen and therefore, all doubts should be resolved in favor of the police. After
all, the Rules of Court provides for the disputable presumption that official duty has been regularly
performed.
I submit that it is not fair to demand that the police should risk their very lives to uphold the rule of
law, and yet should be held in low esteem by people whose mission in life is to change or disregard
the law, outside of constitutional processes. Accordingly, as vice chair of the Senate Finance
Committee, I will file at the end of the Senate budget hearings, a motion to appropriate the sum of
R37 billion for the Philippine National Police.
* More firearms, both short and long; more radios, whether base, mobile, or handheld.
It is not the guns or armament or the money they can pay. It is the close cooperation that makes them
win the day. It is not the individual or the police as a whole but the everlasting teamwork.