The rights of the accused consists of a collection of rules

and statutes that protect a person accused of a civil

or criminal offense.

Be it enacted by the Senate and House of

Representatives of the Philippines in Congress
assembled:: promulgated last April 27, 1992

Several Citizens experience huli-dap

or
arrested
,
detained
or
under
custodial
investigation
without
knowing
of
their
constitutional right. The citizens must have the
right to be informed about the law and their
respective rights as an accused, to circumvent
abuses from the authority and other law
enforcement
officer
and
be
punished
accordingly.

By granting suspects a range of legal protections, a

justice system can attempt to ensure that the rights of
those not yet proven to be guilty of a crime are not
infringed.

Republic of the Philippines

Congress of the Philippines
Metro Manila
Eighth Congress

Republic Act No. 7438

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
Once a person has been taken into police custody the
rules of RA 7438 are to be applied. It will protect the
rights of the persons arrested, detained or under
custodial investigation to value the dignity of every
human being and guarantee full respect for human
rights.
For instance, the use of physical torture or threats of violence is
often prohibited. A suspect be formally charged and tried
speedily, and that a suspect cannot be detained for longer than a
few days without charges being filed.

Custodial investigation involves any questioning by

law enforcement people after a person is taken into
custody or deprived of his freedom in any significant
manner. That includes "inviting" a person to be

investigated in connection of a crime of which he's

suspect and without prejudice to the "inviting" officer
for any violation of law.
If a person is taken into custody and the
interrogation/questioning tends to elicit incriminating
statements, RA 7438 becomes operative (People vs.
Tan, GR 117321, February 11, 1998.)
Application of actual force or restraint isn't necessary;
intent to arrest is sufficient as well as the intent of the
detainee/arrested person to submit while thinking that
submission is necessary. It will also apply if the
"invitation" is given by the military and the designated
interrogation site is a military outpost (Sanchez vs.
Demetriou, GR 111771-77, November 9, 1993.)

Section 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.
It is clear in the provision that accused can
demand for a counsel, if ever he cannot
afford he must be provided with one by the
law in order his rights will be protected
(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.lawphi1
The rights are enshrined in Article III Section 12 of
our Constitution. Its first paragraph states that 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.
The said provision contains a bundle of rights. Not only
is the person being investigated given the right to
remain silent and to have a counsel, but he also has
the right to be informed that he has such right. In
order to ensure the protection of the person under
investigation against threat, harassment and abuse,
the Constitution guarantees him with the right to not
just any counsel, but a competent and independent
one, preferably of his own choice. In one case, our
Supreme
Court
interpreted
competent
and

independent to mean that the lawyer must be willing

to fully safeguard the constitutional rights of the
accused, as distinguished from one who would merely
be giving a routine, peremptory and meaningless
recital of the individuals constitutional rights (People
vs. Deniega, G.R. 103499, December 29, 1995). The
term preferably of his own choice means that the
person under investigation may choose his own
counsel, and is not limited to the lawyer provided by
the police officers. But if the person cannot afford to
hire his own counsel, the police officers are duty
bound to provide him with one.

Aside from the foregoing, the person under

investigation also has the constitutional right not to be
subjected to torture and not to be forced, threatened
or intimidated. Secret detention places, solitary,
incommunicado, or other similar forms of detention
are prohibited (Article III, Section 12, Constitution).
Hence, persons under investigation may not be taken
to such places.

(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.
This means that the police officers must tell the
person under investigation of his constitutional rights,
and he must do so in a language known to or
understood by the person (Section 2 (b), Republic Act
(R.A.)7438). the accused shall be afforded due process
and properly informed of the nature and cause of the
accusations against them. - Stressing the importance
of this constitutional right of the accused, the Supreme
Court held that the right to be informed contemplates
the transmission of meaningful information rather than
just the ceremonial and perfunctory recitation of an
abstract constitutional principle (People vs. Basay,
G.R. 86941, March 3, 1993). The custodial
investigation report will be null and void if it hasn't
been read and explained to him by counsel before he
signed (or thumbmarked if he's illiterate) it. Hence, the
police officer must take measures to make the person
under investigation understand his constitutional
rights.
(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.
Extrajudicial Confession is a confession made out of
court, and not as a part of a judicial examination or
investigation. Such a confession must be corroborated
by some other proof of the corpus delicti, or else it is
insufficient to warrant a conviction. It must be put into
writing and signed by the person under arrest, detain
or in custody with the presence of his counsel or in his
absence upon a valid waiver and any of his family
members (parents, brother, sister, spouse), the
municipal mayor, the municipal judge, district school
supervisor, or priest or minister of the gospel as
chosen by him
The effect of an extra-judicial confession extracted in
violation of constitutionally enshrined rights is
inadmissible in evidence. Where the remaining pieces
of evidence are insufficient to determine guilt with
moral certainty, the appellant is entitled to an
acquittal. A conviction must rest on the strength of the
admissible evidence of the prosecution, not on the
weakness or insufficiency of the defense.

(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.

Inquest proceedings: If the person is arrested in

flagrante delicto or in the act of committing the
crime, the fiscal conducts an inquest, not a
preliminary investigation. Charges must be filed
within 18, 24, 36 hours depending on the gravity
of the crime as provided under Article 125 of the
Revised Penal Code (Delay in the delivery of
detained
persons).
If no charges are filed within the prescribed
period, the police officers who arrested the person
or the fiscal can be charged with violation of
Article 125 RPC. If anyone you know has been
arrested by the police, make sure that he reads
and understand completely what he may be asked
to sign. He might be signing a waiver of Article
125, in which case he can be detained beyond the
prescribed period. In order his rights will be
protected the waiver must 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 nongovernmental organization duly accredited by
the Office of the President. The person's
"immediate family" shall include his or her
spouse, fianc or fiance, parent or child,
brother or sister, grandparent or grandchild,

uncle or aunt, nephew or niece, and guardian or

ward.
Moreover, the person under investigation has the right
to be visited by his immediate family, medical doctor,
religious minister, or by any national nongovernmental organization duly accredited by the
Commission on Human Rights or by any international
non-governmental organization duly accredited by the
Office of the President. The persons immediate
family shall include his or her spouse, fianc or
fiance, parent or child, brother or sister, grandparent
or grandchild, uncle or aunt, nephew or niece, and
guardian or ward (Sec. 2 (f), R.A. 7438).
As used in 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.

Section 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;lawphi1alf
(b) The amount of Two hundred fifty pesos
(P250.00) if the suspected person is chargeable
with less grave or 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
or 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 counsel, custodial investigation
cant be proceed nor 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.
These rights are guaranteed by the Constitution and
our laws to a person under investigation and should
the investigating officers violate them, they may be
subjected
to
appropriate
criminal,
civil
and
administrative charges.

Section 4. Penalty Clause. (a) Any arresting

public officer or 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
public 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 obstructs, prevents 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, or 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).lawphi1
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.
A person under a normal audit investigation
is not considered to be under custodial investigation
since a COA audit examiner isn't considered an
arresting officer under RA 7438 (Navallo vs.
Sandiganbayan, 234 SCRA 175.)
Section 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.
Section 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.lawphi1