Annotation Constitutional Rights of the Accused

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§ 1.

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B

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§ 2.

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B

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D

E

§ 3.

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C

D

E

F

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44 SUPREME COURT REPORTS ANNOTATED

Constitutional Rights of the Accused

A N N O T A T I O N

CONSTITUTIONAL RIGHTS OF THE ACCUSED

By

JOSE AG A TON R. SIBAL

__ ______________

Due Process, p. 45

Essentials of Due Process in Criminal Cases, p. 45

Certainty and Due Process, p. 49

Knowing Use of Perjured Testimony, p. 50

Right to Bail, p. 50

Constitutional Provision, p. 50

Importance of Right, p. 50

Scope of Right, p. 51

Hearing on Bail Application, p. 53

No Excessive Bail, p. 54

Specific Procedural Rights, p. 55

Constitutional Provision, p. 55Presumption of Innocence, p. 55

Right to be Heard by Himself , p. 57

Right to Counsel, p. 58

Right to be Informed of Nature and Cause of

Accusation, p. 60

Right to Speedy Trial, p. 62

Right to Public Trial, p. 65



H

§ 4.

A

B

C

D

E

F

§ 5.

§ 6.

§ 7.

Right to Confrontation, p. 66

Privilege Against Self-Incrimination, p. 68

Constitutional Provision, p. 68

History, p. 69

Reason for the Rule, p. 69

Prohibition Should be Liberally Construed, p. 70

Scope of Prohibition, p. 70

45

VOL. 186, JUNE 4, 1990 45


— Waiver of Privilege, p. 71

Excessive Fines and Cruel, Degrading or

Inhuman Punishment, p. 73

Employment of Physical, Psychological or

Degrading Punishment, p. 74

Conclusion, p. 74

_______________

§ 1. Due Process

The framers of our three Constitutions,1

following the

examples of the Jones Law, did not think it superfluous to

include in the Bill of Rights the provision that “No person

shall be deprived of life, liberty, or property without due

process of law, nor shall any person be denied the equal

protection of the laws,”

2

though it seems beyond questionthat whatever protection this specific provision gives can be

found also in the general due process clause. When the

Government chooses to pit its forces against him, the

individual is puny indeed and needs every protection

against the over-zealousness or malice of its officers, as the

protracted trial of Aurelia Conde from our judicial annals

attest.3

Fraenkel pointed out “the first step of the tyrant is

to use the criminal law to do away with the opposition.”4

and Edmund Burke added: “Kings will be tyrants from



policy, when subjects are rebels from principles.”

The constitutional rights of an accused are for the

protection of the guilty and the innocent alike. Only by the

assurance that even the guilty shall be given the benefit of

every constitutional guaranty can the innocent be secure in

the same rights.

A Essentials of Due Process in Criminal Cases

_______________

1 The 1935, 1973 and 1987 Constitutions.

2 Section 1, Article III, 1987 Constitution.

3 Conde vs. Court of First Instance, 45 Phil. 173; Conde vs. Rivera, 45

Phil. 650.

4 Our Civil Liberties, p. 6.

46



According to the Supreme Court in People vs. Castillo,5

the

requirement of due process in criminal proceedings is

satisfied if an accused person has been heard in a court

with power to try him, proceeded against under an orderly

process, and only punished after inquiry and investigation

upon notice to him and a judgment awarded within the

authority of a valid law. In a general way, due process as

applied to criminal cases requires a procedure that accords

with a “scheme of ordered liberty” and does not violate any

“principle of justice so rooted in the traditions and

conscience of our people as to be ranked fundamental.”6

As in the case of the due process in Section 1,7 no

definition of due process in criminal cases can be

formulated to cover all situations, and its meaning must begradually evolved from case to case. Thus, from the Castillo

requirement of due process the Supreme Court went on to

hold, in Arnault vs. Pecson,8

that due process includes a fair

and impartial trial and reasonable opportunity for

preparing a defense, which may require not only time but

adequate freedom of action. Pursuant to this principle, the

Supreme Court granted the petitioner, who was then under

indefinite confinement for contempt of the Senate, not less

than six hours within which to visit his house and his office



under proper surveillance in order to search for and get

papers which, according to him, he needed for his defense

in a pending criminal case against him. It has also been

held that the constitutional right of an accused to due

process, along with his other constitutional rights, would be

violated if the Labor Code9

were to be construed as vesting

the National Labor Relations with criminal jurisdiction to

impose the penalties provided in the Code for unfair laborpractices, because under the Code the quasi-judicial

tribunal is not bound by the Rules of Evidence and

procedure prevailing in courts of law and equity10

_______________

5 76 Phil. 72.

6 Palko vs. Connecticut, 302 U.S. 319.

7 Article III, 1987 Constitution.

8 87 Phil. 418.

9 Article 221, Labor Code.

10 See San Miguel Corporation vs. National Labor Relations

Commission, 173 SCRA 314.

47

VOL. 186, JUNE 4, 1990 47


may ascertain the facts without regard to technicalities of

law or procedure, and as a consequence it may even convict

on a mere preponderance of the evidence.11

In another

case,12

the Supreme Court to at least two days to prepare

for trial is a deprivation of the constitutional right by due

process.

The right to be heard, which is guaranteed in another

Section of the Bill of Rights,13

is also essentially a part of

procedural due process. The Supreme Court so held when itvoided an order of a trial court refusing to permit an

accused to present evidence in his defense after it had

denied his motion to dismiss based on the alleged

insufficiency of the evidence presented by the prosecution.14

Another right also specifically guaranteed in the Bill of

Rights,15

the right to counsel, has also been considered by

the Supreme Court as essential to due process.16

In one criminal case,17

upon the opening of the hearing,

the following incident occurred:



“COURT: Is this case ready for trial?

“FISCAL: I am ready, your honor.

“COURT: (to the accused) Q. Do you have an attorney or

are you going to plead guilty?—A. I have no

lawyer and I will plead guilty.

“COURT: Arraign the accused.

“NOTE: Interpreter read the information to the accusedin the local dialect after which he was asked this

question.

“Q. What do you plead?—A. I plead guilty, but I was

instructed by one Mr. Ocampo.”

Two days later the court convicted the defendant.

Commenting on the trial court’s question to the accused

—“Do you have an attorney or are you going to plead

guilty?”—The Supreme Court said:

_______________

11 See Scoty’s Department Store vs. Micaller, 52 O.G. 5119.

12 Montilla vs. Arellano, 89 Phil. 434.

13 Section 14, clause 2, Article III, 1987 Constitution.

14 Abriol vs. Homeres, 84 Phil. 525.

15 Section 12, clause 1, Article III, 1987 Constituion.

16 Abriol vs. Homeres, supra.

17 People vs. Holgado, 85 Phil. 752.

48



“Not only did such a question fail to inform the accused that it

was his right to have an attorney before arraignment, but, what is

worse, the question was so framed that it could have been

construed by the accused as a suggestion from the court that he

plead guilty if he had no attorney. And this is a denial of fair

hearing in violation of the due process clause contained in our

Constitution.”

x x x

“It must be added, in the instant case, that the accused who

was unaided by counsel pleaded guilty but with the following

qualification: ‘but I was instructed by one Mr. Ocampo.’ The trial



court failed to inquire as to the true import of this qualification.

The record does not show whether the supposed instruction was

real and whether it had reference to the commission of the offense

or to the making of the plea of guilty. No investigation was opened

by the court on this matter in the presence of the accused and

there is now no way of determining whether the supposed

instruction is a good defense or may vitiate the voluntariness of

the confession. Apparently the court became satisfied with thefiscal’s information that he had investigated Mr. Ocampo and

found that the same had nothing to do with this case. Such

attitude of the court was wrong for the simple reason that a mere

statement of the fiscal was not sufficient to overcome a qualified

plea of the accused. But above all, the court should have seen to it

that the accused be assisted by counsel specially because of the

qualified plea given by him and the seriousness of the offense

found to be capital by the court.”

The filing of criminal charges in court upon which a personaccused may be convicted or acquitted is usually preceded

by some kind of preliminary investigation to enable the

prosecuting authorities to determine whether there is a

prima facie case. This is to save persons from unnecessary

harassment and expenses. Since the Bill of Rights provides

no person shall be held to answer for a criminal offense

without due process of law,18

it seems that so long as a

preliminary investigation would amount to making a

person answer for a criminal offense without due process.19

_______________


19 Marcos vs. Cruz, 68 Phil. 96.

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VOL. 186, JUNE 4, 1990 49


B Certainty and Due Process

No principle is better settled in American constitutional

law than that “a statute which either forbids or requires

the doing an act in terms so vague that men of common

intelligence must necessarily guess at its meaning and

differ as its application, violates the first essential requisite



of due process of law.” In other words, no one may be

required at the peril of life, liberty or property to speculate

as to the meaning of penal statutes.21

Thus, a statute

making it criminal for a person, under certain

circumstances, to be a member of a gang, was invalidated

for vagueness and uncertainty. The phrase “consisting of

two or more persons” was the only one used in the statute

purporting to define “gang.” The Supreme Court pointedout that the meaning of that word indicated in dictionaries

and historical and sociological writings are numerous and

varied and that the meaning is not derivable from the

common law either.22

However, lack of precision is not itself offensive to the

requirements of due process, for the Constitution does not

require impossible standards. It is sufficient if the

language “conveys sufficiently definite warning as to the

prescribed conduct when measured by common

understanding and practices.”23

Accordingly, the UnitedStates Supreme Court has held that statutes prohibiting

“obscence, lewd, or filthy” publications or other publications

of an “indecent” character are not violative of due process,

because the adjectives used, when applied according to the

proper standard and mark “boundaries sufficiently distinct

for judges and juries fairly to administer the law x x x.

That there may be marginal cases in which it is difficult to

determine the side of the line on which a particular past

situation falls is no sufficient reason to hold the languagetoo ambiguous to define a criminal offense.”

_______________

20 Conally vs. General Construction Co., 269 U.S. 389.

21 Lanzetta vs. New Jersey, 306 U.S. 451.

22 For other illustrative cases see annotation: 83 L.ed. 893.

23 Roth vs. U.S., 354 U.S. 476, 491, citing U.S. vs. Petrillo, 332 U.S. 1, 7,

8.

50



C Knowing Use of Perjured Testimony

In the United States, the rule is that due process is denied



by a conviction following a trial in which perjured

testimony on a material point was knowingly used against

the accused, at least where he suffered prejudice by virtue

of the use of such testimony even though it might affect

only his credibility, or where the prosecution knowingly

permitted false testimony to be given by a prosecution

witness in cross-examination, without correcting it. A trial

in which such perjured testimony is knowingly presentedor permitted by the government, is said to be unfair.

24

§ 2. Right to Bail

A Constitutional Provision

All persons, except those charged with offenses punishable

by reclusion perpetua when evidence of guilt is strong,

shall, before conviction, be bailable by sufficient sureties, orbe released on recognizance as may be provided by law. The

right to bail shall not be impaired even when the privilege

of the writ of habeas corpus is suspended. Excessive bails

shall not be required.25

The word “bail” as used in the Constitution26

in the

phrase “excessive bails shall not be required,” is

inadequately translated by the word “fianza” as bail

implies a particular kind of bond—that is to say, a bond

given to secure the personal liberty of one held in restraint

upon a criminal or quasi-criminal charge.27

B Importance of Right

The evident purpose of this particular constitutional

guarantee is to prevent an innocent person from being

deprived of

_______________

24

Napue vs. Illinois, 360 U.S. 264; see annotations: 3 L.ed. 2d, 1991; 2L.ed. 2d. 1575.


26 Taken from Section 5 of the Act of Congress of July 1, 1902.

27 Insular Government vs. Punzalan, 7 Phil. 546.

51

VOL. 186, JUNE 4, 1990 51




liberty and thus punished, through the mere filing of

criminal charges against him.28

In the case of People vs.

Hernandez,29

the government, in opposing an application

for bail pending appeal from a judgment of the Court of

First Instance of Manila sentencing the defendant-

appellant to life imprisonment for the crime of rebellion,urged the Court, in the exercise of its discretion, take into

consideration that the appellant was a menace to the

security of the State and that the judgment of conviction

indicated that the evidence of guilt against him was strong.

On this point the Supreme Court stressed that the

preservation of liberty is a major preoccupation of our

political system, and declared “individual freedom is too

basic, too transcendental and vital in a republican state,

like ours, to be denied upon mere general principles and

abstract considerations of public safety. The Court

accordingly granted temporary release of the appellant on

bail pending appeal.30

C Scope of Right

The constitutional right to bail may be invoked by any

person arrested, detained, or otherwise deprived of his

liberty even if no complaint or information has yet been

filed against him. So, where a statute allowed the

prosecution a period of six months within which toinvestigate and file the corresponding information in the

cases of persons apprehended by the American liberation

forces on suspicion of treason suspects were entitled to

obtain their liberty under bail pending their investigation

and the filing of criminal charges against them.31

The right

to bail is not limited to cases where the person accused,

upon final conviction, would be ordered confined in a penal

institution. Hence, pending appeal by a minor from

conviction for a criminal offense for which he has been

committed to the custody of a correctional or educational

institution, like the Welfareville Correctional Institution,

he is entitled, like any other accused,

_______________

28 Teehankee vs. Rovira, 75 Phil. 634; People vs. Follantes, 63 Phil. 474;

Reyes vs. Court of Appeals, 83 Phil. 658.

29 52 O.G. 5506.



30 See Bolaños vs. Dela Cruz, 116 SCRA 78.

31 Teehankee vs. Rovira, 75 Phil. 634.

52



to provisional release on bail.32

According to Rule 114, Section 3, of the Revised Rules of

Court,33

in non-capital cases, a defendant, before final

conviction, is entitled to bail as a matter of right, except

those charged with a capital offense or an offense which,

under the law at the time of its commission and at the time

of the application for bail, is punished by reclusion

perpetua, when evidence of guilt is strong. Since admission

to bail is a matter of right before conviction in non-capitaloffenses, the fact that the accused has previously

absconded and there is high degree of probability that he

will escape again is not a ground at all for denying bail; it

gives the court no greater discretion than to increase the

bond to such an amount as will reasonably tend to assure

the presence of the defendant.34

Hence, the bail is a matter

of right, the granting of the same is mandatory.

In capital cases,35

when the evidence of guilt is strong,

the accused is not bailable at all,—so the wording of the

constitutional provision strongly implies. It has been held,

however, that to deny bail it is not enough that the

evidence of guilt is strong; it must also appear that in case

of conviction the defendant’s criminal liability would

probably for a capital punishment.36

And so, strong

evidence of guilt, still the defendant pending appeal may be

granted bail where the sentence imposed by the trial court

was life imprisonment.37

Moreover, on grounds of humanity

and in accordance with the modern trend

________________

32 Ching Juat vs. Ysip, 77 Phil. 848; see also Payao vs. Lesaca, 63 Phil.

218; People vs. Follantes, 63 Phil. 474; Reyes vs. Court of Appeals, 83

SCRA 658.

33 As amended by Resolutions of the Supreme Court up to March 14,

1989.

34 Sy Guan vs. Amparo, 79 Phil. 670; see also People vs. Alano, 81 Phil.

19.



35 Under the Revised Penal Code capital offenses are: treason, qualified

piracy, parricide, murder, infanticide, kidnapping, robbery with homicide,

and rape with homicide.

36 Montano vs. Ocampo, 49 O.G. 1855; Bravo, Jr. vs. Borja, 134 SCRA

466; People vs. Intermediate Appellate Court, 147 SCRA 219; People vs.

Albofera, 152 SCRA 123.

37 People vs. Hernandez, 52 O.G. 5506.

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VOL. 186, JUNE 4, 1990 53


of decisions, bail may also be granted to prisoners

irrespective of the nature and merits of the charge against

them, if it is shown that their continuous confinement

during the pendency of their case would be injurious totheir health or would endanger their lives.

38

By a good

number of precedents,39

it is now well established that

pending appeal a defendant convicted of a capital offense

but sentenced to less than the death penalty is bailable.40

In one case,41

the Supreme Court granted bail to a

defendant sentenced by the trial court to the capital

penalty, but that was after the government in its brief

recommended his acquittal. In no other case, however, has

the Supreme Court granted bail to an appellant sentenced

to the death penalty by the trial court.42

D Hearing on Bail Application

A person charged with a capital offense has the right to

have his application for bail be promptly heard as

extension of the trial on the merits of the case.43

The burden of proof to show that evidence of guilt is

strong, is on the prosecution.44

Mere affidavits, or recitals of

their contents are not sufficient to show the existence of

strong evidence,45

nor is hearsay and uncorroboratedtestimony.

46

Exclusion from bail in capital offenses being an

exception to the otherwise absolute right guaranteed by the

Constitution, the tendency has been toward a fair and

liberal appreciation of the

_______________

38 Dela Rama vs. People’s Court, 77 Phil. 461.

39 People vs. Berg, 79 Phil. 842 and cases cited therein; People vs.



Hernandez, 52 O.G. 5506.

40 People vs. Intermediate Appellate Court, 147 SCRA 219.

41 See People vs. Lacson, L-8188, October 15, 1956, unreported.

42 See People vs. Fernandez, 183 SCRA 511.

43 Gerardo vs. Judge, 47 O.G. 143; see also Section 15, Rule 114,

Revised Rules of Court.

44 Marcos vs. Cruz, 67 Phil. 82; see also Ocampo vs. Bernabe, 77 Phil.

55; People vs. Bocar, 27 SCRA 512; Section 5, Rule 114, Revised Rules of Court.

45 Ocampo vs. Bernabe, supra; Beltran vs. Diaz, 77 Phil. 484.

46 Enage vs. Provincial Warden, 83 Phil. 23.

54



evidence in determining the degree of proof necessary to

warrant deprivation of that right.47

Probability or improbability of flight is an important

factor to be taken into consideration in granting or denying

bail. “The exception to the fundamental right to be bailed

should be applied in direct ratio to the extent of the

probability of evasion of prosecution.” A defendant’s official

and social standing and his other personal circumstances

are to be considered in determining the matter.48

E No Excessive Bail

Obviously, when the Constitution prohibits excessive bail,49

it means that the bail that may be required should be

reasonable. The question of reasonableness is addressed to

the judicial discretion and to the court’s sense of justice.

That bail is reasonable which, in view of the nature of the

offense, the penalty which the law attaches to it, and the

probabilities that guilt will be established on the trial,

seems no more than sufficient to secure the party’sattendance. The prisoner’s pecuniary circumstances is of

course an important factor in determining the

reasonableness of the trial; that which is reasonable bail a

man of wealth being equivalent to a denial of the right to

bail if exacted of a poor man charged with a similar

offense.50

The chief factor which must be determined in fixing the

amount of bail is the probability of the appearance of the



accused, or of his flight to avoid punishment. Of importance

then is the possible penalty that may be meted. Of course,

penalty depends to a great extent upon the gravity of the

offense.51

_______________

47

Montano vs. Ocampo, 49 O.G. 1855.48 Ibid; People vs. Alano, 81 Phil. 19; Sy Guan vs. Amparo, 79 Phil. 670.

49 Last sentence of Section 13, Article III; see also opening sentence of

Section 19, clause 1, Ibid.

50 See Section 6, Rule 114, Revised Rules of Court for the guidelines in

fixing amount of bail.

51 Villaseñor vs. Abano, 21 SCRA 312.

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VOL. 186, JUNE 4, 1990 55


§ 3. Specific Procedural Rights


In all criminal prosecutions, the accused shall be presumedinnocent until the contrary is proved, and shall enjoy the

right to be heard by himself and counsel, to be informed of

the nature and cause of the accusation, against him, to

have a speedy, impartial, and public trial, to meet the

witnesses face to face, and to have compulsory process to

secure the attendance of witnesses and the production of

evidence in his behalf. However, after arraignment, trial

may proceed notwithstanding the absence of the accused

provided that he has been duly notified and his failure to

appear is unjustifiable.52

B Presumption of Innocence

It is a cardinal and important rule of law of evidence that

the defendant in a criminal trial, however degraded or

debased he may be, and no matter what may be the

enormity of the crime charged against him, must always be

presumed innocent of the crime for which he is indicted

until his guilt is proved beyond a reasonable doubt.



Nothing need be proved nor is any evidence necessary as

basis for this presumption.53

Rufus Choate said that this presumption is not a mere

phrase without meaning; that it is the nature of the

evidence for the defendant; that it is irresistible as the

heaven still overcome; that it hovers over the prisoner as a

guardian angel throughout the evidence.54

In any criminal proceeding, the starting point is thepresumption of innocence. By reason of this presumption,

an accused is not called upon to offer evidence on his

behalf, for his freedom is forfeited only if the requisite

quantum of proof necessary for conviction be in existence.55

_______________

52 Section 14, clause 2, Article III, 1987 Constitution; see also Section 1,

Rule 115, Revised Rules of Court.

53 Underhill’s Criminal Evidence, 4th ed. 49-51.

54 Wigmore on Evidence, Volume 9, 3rd ed., p. 408.

55 People vs. Dramayo, 42 SCRA 63.

56



The presumption of innocence,56 which is the logical

consequence of the rule of evidence placing the burden of

proof on the prosecution, has been elevated in this

jurisdiction to a constitutional precept.57

Notwithstanding

the presumption, however, the state has a right to specify

what proof shall constitute prima facie evidence of guilt,

and then put upon the defendant the burden of showing

that his act is innocent and without criminal intent. This

presumption of guilt is not unusual or arbitrary, since the

act relied upon by the defendant as justification relates tohim personally or otherwise lies peculiarly within his

knowledge, and a few words from him would be sufficient

to destroy the complainant’s prima facie case.58

Hence, a

statute providing that the failure of an employer to pay the

salaries of his employees at least once every two weeks or

one-half month as required by the statute, constitutes

prima facie a fraud committed by the employer on his

employees by means of false pretenses, does not offend the

constitutional presumption of innocence,59

for under the law



it is sufficient defense for the employer to show that such

failure was due to force majeure or to some other cause

beyond his control.60

In other words, it is not violative of the

Constitution for a law to provide that the presumption of

innocence may be overcome by a contrary presumption

founded upon the experience of human conduct and to

prescribe what evidence shall be sufficient to overcome the

presumption of innocence. An example of such valid law isthe Penal Code provision that the failure of a public officer

to produce public funds or property for which he is

chargeable, upon demand by another duly authorized

officer, shall be prima facie evidence that he has put such

missing funds or property to his personal use.61

The constitutional presumption of innocence imposes

upon

_______________

56 Yee Hem vs. U.S., 268 U.S. 178; People vs. Simbulan, 124 SCRA 927.

57 Cooley, Constitutional Limitations, 8th ed., Volume 1, p. 639.

58 U.S. vs. Tria, 17 Phil. 303.

59 See Cooley, supra, pp. 639-641; see also People vs. Capilitan, 182

SCRA 313.

60 People vs. Merilo, L-3489, June 28, 1951, unreported.

61 People vs. Mengao, 49 O.G. 1411; People vs. Livara.

57

VOL. 186, JUNE 4, 1990 57


the court the duty to ascertain in every case that no person

is made to answer for a crime without proof of his guilt

beyond reasonable doubt,62

it being preferable to acquit a

guilty person rather than convict an innocent one.63

However, the presumption is not conclusive and may yieldto positive proof that the crime has been committed by

accused, proof of which is strong enough to dispel all doubts

and sustain defendant’s conviction.64

C Right to be Heard by Himself

One aspect of an accused person’s constitutional right to be

heard by himself is the right to be present at every stage of

the trial from arraignment to pronouncement of judgment.65

While personal rights are generally waivable, the right of



(1)

(2)

an accused to be present at the trial may not be waived in

certain cases.

This right is jealously safeguarded. The Supreme Court

of the United States states “a leading principle that

pervades the entire law of criminal procedure is that, after

indictment nothing shall be done in the absence of the

prisoner.”66

And in Schwab vs. Berggren,67

the same court

said: “The personal presence of the accused from thebeginning to the end of a trial for felony, involving life or

liberty, as well as at the time final judgment is rendered

against him, maybe, and must be assumed to be, vital to

the proper conduct of his defense and cannot be dispensed

with.”68

The presence of accused is indispensable, except where

the accused is in custody and charged with a capital

offense, only at the following stages: (1) at the arraignment;

(2) when defendant answers the complaints, if he pleads

guilty; and (3) at the

________________

62 Aguirre vs. People, 155 SCRA 337; People vs. Guinto, 184 SCRA 287.

63 People vs. Solis, 182 SCRA 182.

64 People vs. Tagle, 176 SCRA 809.

65 People vs. Beechman, 23 Phil. 274; Cf. Section 1(c), Rule 115, Revised

Rules of Court.

66 Lewis vs. U.S., 146 U.S. 370.

67 143 U.S. 442.

68 See also People vs. Avanceña, 32 O.G. 713.

58



pronouncement of judgment.

69

But his presence at anyother stage of the case may be waived:

the accused may waive his presence at the trial

pursuant to the stipulations set forth in his bail

bond, unless his presence is specifically ordered by

the court for purposes of identification;

the absence of the accused without any justifiable

cause at the trial on a particular date of which he

had notice; and



(3) when an accused under custody had been notified of

the date of the trial and escapes.70

Whenever a protection given by the Constitution is waived

by the person entitled to protection, the presumption is

always against the waiver.71

D Right to CounselUnder the 1987 Constitution the right of a person under

investigation includes: “the right to have competent and

independent counsel preferably of his own choice and if he

cannot afford the services of counsel, he must be provided

with one.”72

The right to counsel cannot be waived except in writing

and in the presence of counsel. Hence, legal assistance is

needed to assist anyone before the courts of justice and in

quasi-judicial bodies to avoid miscarriage of justice.

The main purpose of the presence of counsel during

investigation is the ascertainment of truth.73

The scope of the constitutional right to counsel as

implemented by the Rules of Court74

and its importance to

the

_________________

69 Diaz vs. U.S., 223 U.S. 442; People vs. Francisco, 46 Phil. 40.

70

Section 1(c), Rule 115, Revised Rules of Court.71 People vs. Jara, 114 SCRA 516.

72 Section 12, clause 1, Article III; see also People vs. Manlapaz, 183

SCRA 300; the leading cases that have unfailingly applied the

constitutional edict are: Morales vs. Enrile, 121 SCRA 536; People vs.

Galit, 135 SCRA 465; People vs. Burgos, 144 SCRA 1; People vs. Albofera,

152 SCRA 128; People vs. Pinlac, 165 SCRA 674; Estacio vs.

Sandiganbayan, 183 SCRA 12; People vs. Aquino, 184 SCRA 205.

73 People vs. Masongsong, 174 SCRA 39.

74 Cf. Section 1(c), Rule 115.

59

VOL. 186, JUNE 4, 1990 59


accused are well stated by Chief Justice Moran in People

vs. Holgado:75



“In criminal cases there can be no fair hearing unless the accused

be given an opportunity to be heard by counsel. Even the most

intelligent or educated man may have no skill in the science of

law, particularly in the rules of procedure, and, without counsel,

he may be convicted not because he is guilty but because he does

not know how to establish his innocence. And this can happen

more easily to persons who are ignorant or uneducated. It is for

this reason that the right to be assisted by counsel is deemed soimportant that it has become constitutional and it is so

implemented that under our rules of procedure it is not enough

for the Court to apprise an accused of his right to have an

attorney, but it is essential that the court should assign one de

oficio for him if he so desires and he is poor or grant him a

reasonable time to procure an attorney of his own.”

The Court, considering the gravity of the offense and the

difficulty of the questions that may arise, shall appoint as

counsel de oficio only such members of the bar in goodstanding who, by reason of their experience and ability may

adequately defend the accused. But in localities where such

members of the bar are not available, the court may

appoint any person, resident of the province and of good

refute for probity and ability, to defend the accused.76

Denial or disregard by the trial court of the right of the

accused to be represented by counsel, and failure to inform

him of such right, or to assign to him a counsel de oficio if

he so desires, constitutes reversible error which can be

remedied by appeal,77 however, the denial of right to

counsel must be raised immediately for he can not raise

such question for the first time on appeal,78

and perhaps

through habeas corpus also.79

________________

75 85 Phil. 752, 756-757.

76 Section 7, Rule 116, Revised Rules of Court.

77 U.S. vs. Palisoc, 4 Phil. 207; People vs. Holgado, 85 Phil. 752.78 U.S. vs. Escalante, 36 Phil. 743; People vs. Nang Kay, 88 Phil. 515.

79 Abriol vs. Homeres, 84 Phil. 525; against the case of Velasco vs.

Superintendent, 67 Phil. 538; see also Section 20, Rule 41, Revised Rules

of Court.

60





The right to counsel is not violated when accused was given

opportunity to confer with counsel before his extrajudicial

confession was taken80

and also when his lawyer arrived at

the closing stage of the interrogation, read the statement

and talked to the accused before the latter signed it.81

The Court should perform this function of advising theaccused of his rights, when he appears without counsel.

How could the accused be expected to claim his right to

counsel and to make an issue of this in the trial court when

he has no one to advise him that what he should do? Most

often those who appear without counsel are those who

stand most in need of one. As stated by the United States

Supreme Court, “the guarantee would be nullified by a

determination that an accused’s ignorant failure to claim

his rights removes the protection of the Constitution.”82

E Right to be Informed of Nature and Cause of Accusation

The constitutional provision referring to the right of the

accused to be informed of the nature and cause of the

accusation against him83

is satisfied by a pleading that

leaves no doubt in the mind of any person of rudimentary

intelligence as to what the charge is and does not require

one that will exclude every misinterpretation capable of

occurring to an intelligence fired with a desire to perfect.84

The purpose of the Constitution is to prevent surprises thatmay lead to injustice,

85

and so where the criminal complaint

or information suffers from ambiguous, the defendant is

entitled to a bill of particulars from the prosecution

specifying the charge.86

________________

80 People vs. Masongsong, 174 SCRA 39.

81 Estacio vs. Sandiganbayan, 183 SCRA 12.

82 Johnson vs. Zerbst, 304 U.S. 458; quoted with approval in Abriol vs.

Homeres, 84 Phil. 525, 533.

83 Section 14, clause 2, Article III, 1987 Constitution; see also Section

1(b), Rule 115, Revised Rules of Court; People vs. Regala, 113 SCRA 613;

U.S. vs. Santos, 4 Phil. 419.

84 Cf. Section 9, Rule 110, Revised Rules of Court; Rosario vs. U.S., 207

U.S. 368.

85 People vs. Zulueta, 89 Phil. 907.

86 Section 10, Rule 116, Revised Rules of Court.



61

VOL. 186, JUNE 4, 1990 61


Also, the Constitution requires a person under

investigation “to be informed” of his right to remain silentand to counsel, it must be presumed to contemplate the

transmission of meaningful information rather than just

the ceremonial and perfunctory recitation of an abstract

constitutional principle. As a rule, therefore, it would not

be sufficient for a police officer just to repeat to the person

under investigation the provisions of the Constitution. He

is not only duty-bound to tell the person the rights to which

the latter is entitled, he must also explain their effects in

practical terms.87

In other words, the right of a person

under interrogation “to be informed” implies a correlative

obligation on the part of the police investigator to explain,

and contemplates an effective communication the results in

understanding what is conveyed. Short of this, there is a

denial of the right, as it cannot truly be said that the

person has been “informed” of his right. Now, since the

right “to be informed” implies comprehension, the degree of

explanation required will necessarily vary, depending upon

the education, intelligence, and other relevant personal

circumstances of the person under investigation. Suffice itto say that a simpler and more lucid explanation is needed

where the subject is unlettered.88

Under the Rules of Court, the right is safeguarded in

several stages of the criminal case. At the preliminary

investigation the accused is informed of the complaint

against him.89

The information must couched in ordinary

and concise language without repetition90

(1) to enable a

person of common understanding to know the offense is

intended to be charged and (2) to enable the court to

pronounce proper judgment.91

The information must charge

but one offense.92

At the arraignment, the information must

be read to the accused in the language or dialect known to

_______________

87 See People vs. Ramos, 122 SCRA 312; People vs. Caguioa, 95 SCRA

2.

88 People vs. Nicandro, 141 SCRA 289; cited in People vs. Duhan, 142



SCRA 100; People vs. Pinlac, 165 SCRA 674; See also People vs. Olapani,

174 SCRA 495.

89 Sections 2 and 3, Rule 112, Revised Rules of Court.

90 Section 9, Rule 110, Ibid.

91 People vs. Bandojo, 63 SCRA 1053.

92 Section 6, Rule 110, supra.

62



him and a copy must be furnished him by the Judge or

clerk.93

The presumption would be, from the failure of the

accused and his counsel to seek any further information,

that he was sufficiently informed of the charge and wassatisfied with the complaint, understood what it meant,

and was willing to go to trial on the assumption that it was

sufficient.94

Although an accused is deaf and dumb it will be

presumed that adequate measures were taken by the trial

court to translate to him, by signs, the contents of the

information and to ascertain his manifestation, in

connection with the acceptance of his plea.95

The right of defendant to be informed of the nature and

cause of accusation cannot be waived.

F Right to Speedy Trial

The right to speedy trial is necessarily relative, consistent

with unreasonable delays, and depends upon the

circumstances.96

It means therefore a right to free trial

from” vexatious, capricious and oppressive delays”97

and

also “justice delayed is justice denied.”98

Detention

prisoners, in particulars, have the right to have their cases

tried and decided as speedily as possible.99

But the right tospeedy trial does not extend to the pronouncement of

judgment.100

Furthermore, the Court consistently maintained that

although a speedy determination of an action implies a

speedy trial,

________________



93 Section 1, Rule 116, Ibid.

94 U.S. vs. Sarabia, 4 Phil. 876.

95 People vs. Nozorio, L-7628, September 29, 1955, unreported.

96 Aunabe vs. Director of Prisons, 77 Phil. 993; People vs. Romulo, 40

O.G. 489; Mercado vs. Santos, 66 Phil. 215; People vs. Romero, 93 Phil.

128; See also Section 16, Article III, 1987 Constitution; Section 1(h), Rule

115, Revised Rules of Court.

97 Conde vs. Rivera, 45 Phil. 650; Esguerra vs. Court of First Instance,95 Phil. 609; Kalaw vs. Apostol, 64 Phil. 852; Acosta vs. People, 5 SCRA

774.

98 Conde vs. Judge of First Instance, 45 Phil. 173.

99 Manabat vs. Provincial Warden, 94 Phil. 45.

100 Acosta vs. People, 5 SCRA 774; Talaban vs. Provincial Warden of

Iloilo, 78 Phil. 599.

63

VOL. 186, JUNE 4, 1990 63


speedy is not the chief objective of a trial. Careful and

deliberate consideration for the administration of justice, a

genuine respect for the rights of all parties and the

requirements of procedural due process and an adherence

to the Court’s standing admonition that the discretion

granted judges in the granting or denial of motions for

postponement and the setting aside denial orders

previously issued “should always be predicated on the

consideration that more than the mere convenience of the

court or of the parties in the case, the ends of justice and

fairness would be served thereby are more important than

a race to end the trial.”1

The right to speedy trial obtains without respect to the

grade of the crime of which the accused may stand charged.

It is guaranteed to every person accused of a crime, not

only to one so accused for the first time, but also to thehabitual offender. Even one who is imprisoned under

sentence for the commission of another crime is not without

the protection of this right.2

But reasonable delays do not operate to deprive an

accused of his right to speedy trial. What is a reasonable

delay depends upon the particular circumstances.3

So,

where an information was filed in July and trial was begun

and completed in December of the same year, it could not

be said that the accused was denied his right to speedy



trial because of continuances granted on several occasions

to the prosecution either by reason of temporary inability

to locate its star witness, or of transportation difficulties

and bad weather making streams impassable, or of transfer

of presiding judge.4

In other words, the defendant’s right to

speedy trial should not be carried to the extreme of

practically denying the prosecution its day in court, for

causes beyond its control.

5

It was therefore held an abuse of discretion for a trial court to refuse the prosecution’s

motion for postponement, which was the first asked by the

prosecution,

_______________

1 Yñiquez vs. Court of Appeals, 176 SCRA 235; citing Amberti vs. Court

of Appeals, 89 SCRA 240.

2 14 Am. Jur. 858; see also Shioji vs. Harvey, 43 Phil. 333.

3 Mercado vs. Court of First Instance, 66 Phil. 215; Gunabe vs. Director

of Prisons, 77 Phil. 993.

4 People vs. Lusanta, 47 O.G. 6161.

5 People vs. Alipao, 96 Phil. 20.

64



and to dismiss the case simply because of the non-

appearance of the complainant due to a typhoon warning,

although the defendant and his witnesses managed to

make the trip to court from the same place inspite of the

bad weather, it appearing, however, that the complaining

witness was the mother of several small boys whom she

was naturally unwillingly to leave alone at home under

such conditions.6

On the other hand, in a prosecution for

rape, it was held not an abuse of discretion for the trialcourt, after granting three movements on May 27, June 1

and June 12 upon showing that the complaining witness

was ill and confined in a hospital, to dismiss the case, upon

motion of the defendant who invoked his right to speedy

trial, when the complainant was still not in attendance

upon resumption of the trial.7

The accused must claim his right to a speedy and early

trial if he wishes its protection. Silence on his part cannot

be considered a demand for trial.8

He must see to it that his



case is tried at an early date.

The defendant who wants to avail of his right to speedy

trial should ask, not for dismissal of the case, but for its

trial, whereupon, if the prosecution, for lack of reasonable

ground for postponement, is ordered to proceed and fails to

do so, defendant becomes entitled to an absolute and

definite dismissal which will bar subsequent prosecution

for the same offense.

10

The right to speedy trial is waivable, and hence, when

the delay is acquisced in by the accused, or is attributable

to him, as where the absence of material witness is due to

the fact that they were being hidden by friends of the

accused, probably with his knowledge or connivance, he

cannot claim to have been denied speedy trial.11

_______________

6 Ibid.

7 People vs. Abaño, 97 Phil. 28; See also Mercado vs. Santos, 66 Phil.

215 and Kalaw vs. Apostol, 64 Phil. 852 for other examples of unjustified

delay.

8 State vs. Slorah, 118 Mc. 203, 4 ALR 1256.

9 See People vs. Jabajab, 100 Phil. 307.

10 Caes vs. Intermediate Appellate Court, 179 SCRA 54; People vs.

Jabajab, supra; see also People vs. Jaramilla, 51 O.G. 5593.

11 Esguerra vs. Court of First Instance, 95 Phil. 609; Gunabe vs.

65

VOL. 186, JUNE 4, 1990 65


G Right to Public Trial

The right to a public trial is manifestly intended to protect

the rights of a person accused of a crime, so that the publicmay see that he is fairly dealt with and not unjustly

condemned and that the presence of spectators may keep

his triers keenly alive to a sense of their responsibility and

to the importance of their functions.12

A public trial means one which is not limited or

restricted to any particular class of the community but is

open to the free observation of all.13

There is no general agreement as to what is meant by



public trial or as to the limitation on the attendance at a

criminal trial that a court may put consistently with the

constitutional provision.14

The obvious minimum

compliance with the requirement of public trial is to have

the trial open to the general public, without discrimination,

and conducted in a court room sufficient in size to

accomodate a reasonable proportion of the general public in

addition to the court officers, lawyers, parties andwitnesses.

15

The Rules of Court16

provide that where the evidence to

be presented offensive to decency and public morals, the

court may order the public to be excluded from the court.

This exception is considered by some American authorities

as valid and by others as violative of an accused’s right to

public trial.17

The right to a public trial may be waived by the

defendant.18

_______________

Director of Prisons, 77 Phil. 993; People vs. Jabajab, supra.

12 14 Am. Jur. 865.

13 People vs. Greeson, 230 Mich. 124; State vs. Keeler, 52 Mont. 205;

LRA 1916 E 472.

14 Annotation: Ann. Cases, 1917, 625; 156 A.L.R. 265; 48 A.L.R. 2d.

1438; Section 14, clause 2, Article III, 1987 Constitution.

15

See People vs. Murray, 89 Mich. 276, 50 N.W. 422, 1091; People vs.Greeson, 230 Mich. 124; 203 N.W. 141; State vs. Hensley, 75 Ohio St. 255;

79 N.E. 462, 9 LRANS 277; Annotation: 9 Ann. Cases III; 27 LRANS 487;

Ann. Cases 1917 E. 625.

16 Section 2, Rule 135.

17 See 14 Am. Jur. 866-868 and footnotes.

18 See Gunabe vs. Director of Prisons, 77 Phil. 993.

66



Thus, where for the convenience of witnesses a case was

tried in Bilibid prison, without any objection on the part of

the defendant as to the place of trial or that it was not

public at the time, it was held that the defendant had

waived by his acquiescence his right to public trial.19

Also for waiver to exist, the following elements must



concur: existence of a right; knowledge of the existence

thereof; and intention to relinquish such right. Such waiver

must be made in an unequivocal manner. The acts or

omissions relied upon as waiver should be so manifestly

consistent with, and indicative of, an intent to voluntarily

relinquish the particular right or advantage that no other

explanation of his conduct is possible.20

H Right to Confrontation

The right of the accused to meet the witnesses against him

face to face is not to enable them to gaze idly upon each

other, but has for its main and essential purpose to ensure

to the accused opportunity to cross-examine such

witnesses, and thus prevent his conviction upon

depositions or ex-parte affidavits given in his absence.21

Thus, the right of cross-examination is a substantial

right, the preservation of which is essential to a proper

administration of justice, and extends to all matters within

the knowledge of the witness, the disclosure of which is

material to the controversy.22

The constitutional right of confrontation, which

guarantees to the accused the right to cross-examine the

witnesses for the prosecution is one of the most basic rights

of the accused person under our system of justice. It is a

fundamental right which is

_______________

19 U.S. vs. Mercado, 4 Phil. 304.

20 See Fernandez vs. Subido, 70 Phil. 151.

21 U.S. vs. Javier, 37 Phil. 449; State vs. Shaughnessy, 212 Wis. 322,

249 N.W. 522, 90 A.L.R. 368; Maltox vs. U.S., 156 U.S. 237; Kirby vs. U.S.,

174 U.S. 42; 2 Wigmore on Evidence, Sections 1396-1397; Dowdell vs.

U.S., 227 U.S. 326.

22 Crossby vs. State, 82 S.E. 2d. 38; citing News Publishing Co. vs.

Butler, 22 S.E. 282; Richards vs. Harpe, 155 S.E. 85; See also People vs.

Bagano, 181 SCRA 747.

67

VOL. 186, JUNE 4, 1990 67


part of due process not only in criminal proceedings but

also in civil proceedings as well as in proceedings in



administrative tribunals with quasi-judicial powers.

In almost exactly the same language our three

Constitutions secured it, thus: “In all criminal

prosecutions, the accused x x x shall enjoy the right x x x to

meet the witnesses face to face.24

Echoing the same

guarantee, Section 1 (f) of Rule 115 of the Revised Rules of

Court provides that in all criminal prosecutions, the

accused shall be entitled to confront and cross-examine thewitnesses against him at the trial. Constitutional

confrontation requirements apply specifically to criminal

proceedings and have been held to have two purposes: first

and primarily, to secure the opportunity of cross-

examination, and secondarily, to obtain the benefit of the

moral impact of the courtroom atmosphere as it affects the

witness’ demeanor.25

Stated otherwise, it insures that the

witness will give his testimony under oath, thus deterring

lying by the threat of perjury charge; it forces the witness

to submit to cross-examination, a valuable instrument inexposing falsehood and bringing out the truth; and it

enables the court to observe the demeanor of the witness

and assess his credibility.26

In Savory Luncheonette vs. Lakas ng Manggagawang

Pilipino27

and the cases cited thereunder, the Court

speaking through Justice Palma, has provided us with a

concise overview of the right to cross-examination as a vital

element of due process. Thus:

“The right of a party to confront and cross-examine opposing

witnesses in a judicial litigation, be it criminal or civil in nature

or in proceedings before administrative tribunals with quasi-

judicial powers, is a fundamental right which is part of due

process. However, the

_______________

23 People vs. Seneris, 99 SCRA 92; citing Savory Luncheonette vs. Lakas ng

Manggagawang Pilipino, 62 SCRA 258.

24 Section 14, clause 2, Article III, 1987 Constitution; Section 19, Article IV,

1973 Constitution; and Section 17, Article III, 1935 Constitution.

25 21 Am. Jur. 2d. 360; see also U.S. vs. Javier, 37 Phil. 449.

26 People vs. Seneris, 99 SCRA 92; citing California vs. Green, 339 U.S. 157.

27 62 SCRA 258, 263-267.

68





right is a personal to a renunciation of the right of cross-

examination. Thus, where a party has had the opportunity to

cross-examine a witness but failed to avail himself of it, he

necessarily forfeits the right to cross-examine and the testimony

given on direct examination of the witness will be received or

allowed to remain in the record. The conduct of a party which maybe construed as an implied waiver of the right to cross-examine

may take various forms. But the common basic principle

underlying the application of the rule on implied waiver is that

the party was given the opportunity to confront and cross-

examine an opposing witness but failed to take advantage of it for

reasons attributable to himself alone.”28

The provision of the Constitution29

authorizing trial de

absentia of the accused in case of his non-appearance after

arraignment despite due notice means that he waives hisright to meet the witnesses face to face among others. An

express waiver of the appearance after arraignment has

the same effect.30

§ 4. Privilege Against Self-Incrimination


A witness will not be compelled to answer any questionwhich incriminates him or the reply to which will supply

evidence by which he could be convicted of a criminal

offense, under the provision of our Constitution to the effect

that “no person shall be compelled to be a witness against

himself.”31

Based on this constitutional guaranty, the

Revised Rules of Court provides that “in all criminal

prosecutions, the accused shall be entitled to be exempt

from being compelled to be a witness against himself.”32

_______________

28 Fulgado vs. Court of Appeals, 182 SCRA 81; see also People vs.

Seneris, 99 SCRA 92.

29 Section 14, clause 2, Article III.

30 Carredo vs. People, 183 SCRA 273.


32 Section 1(e), Rule 115.

69



VOL. 186, JUNE 4, 1990 69


B History

The provision that no one is bound to incriminate himself isolder than the Government of the United States. At an

early day it became a part of the common law of England.

It was established on the grounds of public policy and

humanity—of policy, because if the party were required to

testify, it would place the witness under the strongest

temptation to commit the crime of perjury, and of

humanity, because it would prevent the extorting of

confessions by duress.

It had its origin in a protest against the inquisitorial

methods of interrogating the accused person, which had

long obtained in the continental system.33

In otherwords, the very object of adopting this provision

of law was to wipe such practices as formerly prevailed in

those Islands of requiring accused persons to submit to

judicial examinations, and to give testimony regarding the

offenses with which they were charged.

In Emery’s case,34

it was said that the principle applies

equally to any compulsory disclosure of the guilt of the

offender himself, whether sought directy as the object of the inquiry, or indirectly and incidentally for the purpose of

establishing facts involved in an issue between the parties.

If the disclosure thus made would be capable of being

used against him as a confession of crime, or an admission

of facts tending to prove the commission of an offense, such

disclosure would be an accusation against himself.34a

C Reason for the Rule

In the language of Mr. Justice Bradley, in the Boyd case,

“any compulsory discovery by extorting the party’s oath x x

x to convict him of a crime x x x is contrary to the principles

of free government; it is abhorent to the instincts of an

English-man; it is abhorent to the instinct of an American.

It may suit the

______________

33 Jone’s Law of Evidence, Section 887; Black’s Constitutional Law, p.



“(1)

“(2)

“(3)

575.

34 107 Mass. 172.

34a U.S. vs. Navarro, 3 Phil. 143.

70



purposes of despotic power but it cannot abide the pure

atmosphere of political liberty and personal freedom.35

D Prohibition Should be Liberally Construed

The constitutional guaranty must be liberally construed in

favor of the witness, and when a proper question arises the

constitutional provision should be applied in a broad and

liberal spirit to secure to the citizen that immunity fromevery species of self-accusation implied in his,

36

also for the

security of person and property.37

E Scope of the Prohibition

As to the kinds of facts covered by the privilege, Wigmore

says:

The privilege applies to any fact to which a penalty

is attached by way of retribution or deterrence,

whether that penalty be a money fine or an

imprisonment or a deprivation of a right or

privilege. But it does not apply where a deprivation

or forfeiture or other loss is merely a measure to

prevent further improper exercise of a privilege,

e.g., a disbarment or the cancellation of a liquor

license. And of course it applies when in a civil

proceeding a penal fact is incidentally relevant.

The privilege applies not merely when the fact is in

itself a penal fact, but also when the fact wouldtend to criminate the witness. “Where the penalty

has once been imposed and suffered, the act is no

longer penal; hence a prior conviction can always be

asked about.

The privilege applies only to a fact penalized by the

law of the forum, and not by the law of any foreign

State or other jurisdiction. The theoretical reason

for this that courts cannot and do not attempt to



“(4)

“(5)

“(6)

enforce any law but that of their own State. The

practical reason is that to recognize a privilege

founded on the law of a foreign State

_____________

35 U.S. vs. Navarro, 3 Phil. 143; see also Galman vs. Pamaran, 138

SCRA 294; People vs. Gardner, 144 N.Y. 119; U.S. vs. Tan Teng, 23 Phil.145.

36 Ward vs. State, 27 Okla, Crim. Rep. 362, 228 P. 498; People vs.

Spain, 307 Ill. 282, 138 N.E. 614.

37 Boyd vs. U.S., 116 U.S. 616.

71

VOL. 186, JUNE 4, 1990 71


would require an encyclopedic analysis of any laws

in the world; which is impractical.

The privilege applies only to a penal act of the

witness himself, not of a third person. Otherwise,

no criminal trial could proceed. Moreover, the third

person would be protected, if he should be called as

a witness.

The privilege applies only to a natural person, notto a corporation. On principle, the privilege is

concerned chief with the extractions of testimonial

responses, and the artificial person is of course

incapable of being questioned.

The privilege does not apply to a record required to

be kept, of acts not in themselves criminal, which

become so only because of the person’s own choice;

e.g., to a pharmacist’s record of narcotics sold, for

the sale in itself is lawful if made on conditionsprescribed by law, such as physician’s prescription;

or to a clergyman’s record of marriages, for the act

of performing a marriage is lawful, unless the

celebrant omits to obey some prescribed conditions.

“This limitation of the privilege is sometimes judicially explained

on the ground that such records are ‘public books’ or ‘official

books,’ and that the official has impliedly undertaken to waive the

privilege.



“On the same principle as in paragraph 6, the privilege does

not apply to an oral report, required by law, of acts not in

themselves criminal; e.g. an automobile driver’s report of a

collision, or an arrested person’s disclosure of his name.”38

F Waiver of Privilege

There can be no implied waiver of a citizen’s right againstself-incrimination.

Any such renunciation cannot be predicated on such a

slender or tenuous reed as a dubious implication.

Otherwise, it would be easier to lose the human rights

guaranteed by the Bill of Rights than to protect or preserve

them; it would be easier to enslave the citizen than for him

to remain free. Such a result was never intended by the

Founding Fathers.

Section 17 of the Bill of Rights stating that “no person

shall be compelled to be a witness against himself,” appliesto both the ordinary witness and the suspect under

custodial investigation.

In support of the rule that there can be no implied

waiver of

______________

38 Wigmore on Evidence (Student Text), pp. 371-372.

72



the right against self-incrimination and all other

constitutional rights by the witness or by the accused, is

the fact that the right against double jeopardy can only be

renounced by the accused if the criminal case against himis dismissed or otherwise terminated with his express

consent. Without such express consent to the dismissal or

termination of the case, the accused can always invoke his

constitutional right against double jeopardy.39

The privilege may also be deemed waived by a witness

voluntarily taking the stand. The moment he testifies on a

matter which is part of a whole fact forming a single

relevant topic, he can be compelled to testify as to the

remaining parts of the whole.40

The accused, by testifying



when he could have remained silent, is also considered

waiving his privilege,41

although there is authority to the

contrary.42

Of several views concerning the extent of the

waiver when the accused takes the witness chair,

Wigmore,43

favors the one that holds that his testimony

upon any fact is a waiver on all other facts relevant to the

issue, and thereby excluding collateral matters such as

those affecting credibility.Wharton

44

added: “Since it is a personal right to be

exercised by him alone, the privilege against self-

incrimination may be waived by a witness and, when

waived by the voluntary offer of the witness to testify fully,

if he has been fully informed of his rights and acts under

advice of counsel, or by answering questions without

objection or without claiming the privilege. Hence, a

witness who voluntarily answers an incriminating question

on direct examination without claiming his privilege cannot

refuse to answer on cross-examination question germane tohis direct examination upon the ground that his answer

might incriminate him.”

_______________

39 Galman vs. Pamaran, 138 SCRA 294, concurring opinion of the then

Chief Justice Makasiar.

40 VIII Wigmore, 3rd ed., Section 2276.

41 Ibid.

42 Cooley, Constitutional Limitations, 3rd ed., p. 317; see also Wigmore,

Op. Cit., p. 449.

43 Op. Cit., pp. 441-445.

44 Criminal Evidence, 11th ed., p. 1144.

73

VOL. 186, JUNE 4, 1990 73


§ 5. Excessive Fines and Cruel, Degrading or

Inhuman Punishment

Excessive fines shall not be imposed, nor cruel, degrading

or inhuman punishment inflicted. Neither death penalty be

imposed, unless, for compelling reasons involving heinous



crimes, the Congress hereafter provides for it. Any death

penalty already imposed shall be reduced to reclusion

perpetua.45

According to the Supreme Court, it takes more than

merely being harsh, excessive, out of proportions, or severe

for a penalty to be obnoxious to the Constitutions. To come

under the ban, the punishment must be “flagrantly and

plainly oppressive,” “wholly disproportionate to the natureof the offense as to shock the moral sense of the

community.”46

By this test, the Court adjudged the penalty of

imprisonment for five (5) to ten (10) years imposed by law

for illegal possession of firearms, not to be cruel and

unusual, barbarous, or excessive to the extent of being

shocking to public conscience, taking into considerations

the public interest at stake and the necessity for a radical

measure to meet rampant criminality.47

In certain

exceptional circumstances obtaining in a particular casethe penalty may be out of proportion, but is not necessarily

offensive to the Constitution just for this reason. In any

case constitutionality of a statute is not to be judged in the

light of exceptional cases.48

Fortunately, the law in this

jurisdiction authorizes the court in such cases to

recommend executive clemency.

The Court49

has also held that a fine of up to P5,000 for

profiteering is not cruel and unusual or shocking to the

conscience, considering the necessity to prevent dealerstaking advantage of the country’s critical conditions to

make unusual profits. It may be thought that in a single

sale, as for example, in a sale of one can of milk, the profit

may be small, and in a prosecution for this one sale the

corresponding penalty may seem out of propor-

_______________


46 People vs. Estoista, 49 O.G. 3330; resolution, 50 O.G. 153.47 Ibid.

48 Ibid; see also People vs. Melgar, 52 O.G. 7238.

49 People vs. Tiu, 51 O.G. 1863.

74





tion, but similar transactions add up to a great number,

and cause great hardship, particularly on poor people.

A contempt order committing the party in contempt to

imprisonment until he complies with previous orders of the

court is remedial in purpose and coercive in character,

intended for the benefit of the other party, and the

indefinite confinement that may result from continued noncompliance is neither cruel nor excessive, particularly so

when the imprisoned man “carries the keys to his prison in

his own pocket.”50

The abolition of capital punishment of death is not

absolute. The Congress may impose by enacting a law on

capital punishment on offenses involving heinous crimes.

§ 6. Employment of Physical, Psychological or

Degrading Punishment

Under the New Constitution,51

the use of physical,

psychological, or degrading punishment against any

prisoner or detainee are now against the law which

Congress may enact and much more a direct smack on our

fundamental law.

The use of substantial or inadequate penal facilities

under subhuman conditions shall be dealt with by law.

Also, secret detention places, solitary, in communicado,

or other similar forms of detention are prohibited.

52

§ 7. Conclusion

The Bill of Rights constitutes the reservation of the

sovereign people against, as well as the limitation on, the

delegated powers of government. These rights need no

express assertion. On the contrary, the police and

prosecution officers of the country should respect these

constitutional liberties as directed by the decision in theHildawa vs. Ponce Enrile,

53

and Valmonte vs. Integrated

National Police54

cases. The established jurispru-

_______________

50 Harden vs. Director of Prisons, 81 Phil. 741.



53 138 SCRA 146.



54 138 SCRA 146.

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VOL. 186, JUNE 4, 1990 75


dence is that waiver by the citizen of his constitutional

rights should be clear, categorical, knowing, and

intelligent.55

And any evidence, confession or admission, in violation

of the Bill of Rights shall be inadmissible for any purpose

in any proceeding and/or in evidence against the accused.

——o0o——

_____________

55 Galman vs. Pamaran, 138 SCRA 294; Johnson vs. Zerbst, 304 U.S.

458; cited Abriol vs. Homeres, 84 Phil. 525 and in Chavez vs. Court of

Appeals, 24 SCRA 663.

76

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Annotation Constitutional Rights of the Accused

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