Friday, April 24, 2009

The Ted Failon case (2): RA 7438 rights of persons under custodial investigation; When police officers “invite” you ...

I will be saying some negative things about police officers and the way they handled the investigation of Failon’s case. Please take note however that I have nothing personal about police officers. I have defended several DEU (Drug Enforcement Unit) officers before the People’s Law Enforcement Boards of Pasig and Mandaluyong and in criminal cases related to their work. (The functions of the DEU have been transferred to the PDEA.) Oftentimes, police officers who arrest drug pushers are harassed by the pushers and their relatives who file various criminal and administrative cases against them.

When I was in MLQU law school in the late 80’s, I had several classmates who were police officers (an investigator who’s now a councilor in a Metro Manila city, a police photographer nicknamed Oca who, before our classes started, always took the bullets out of his .38 caliber revolver, and a Special Action Force guy who sweated profusely every time he got called to recite in our Persons class). Later on, in JRC’s law school, one of our underclassmen was a police officer who became the top PNP general several years ago.

Several of Failon’s household helpers and in-laws were forcibly arrested without warrants two weeks ago. TV news coverage of these arrests showed the police officers handcuffing and holding one suspect by his collar and shoving him inside a police vehicle. The police even arrested one guy inside Trina Etong’s hospital room. When asked by reporters why these persons were being arrested, the police answered that these persons will be subjected to inquest proceedings and then charged. Later on, the police said that they were merely “inviting” these persons for questioning.

What do you do when police officers “invite” you for questioning?

This practice of police officers of picking somebody up under the guise of “inviting” that person for questioning is a widely-abused practice. First of all, just like any invitation, anyone can refuse to go with these police officers when he is “invited” for questioning.

Secondly, police officers have to comply with the provisions of Republic Act 7438, our law on the rights of persons under custodial investigation.
RA 7438 provides in Section 2, sub-paragraph f, that custodial investigation includes the common police practice of “inviting” people for questioning. It is clear from the TV news reports that police officers who arrested Failon’s househelpers and relatives did not comply with RA 7438. Posted below are the provisions of this law which became effective in April 27, 1992.

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.

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.

2 comments :

Anonymous said...

i was also a victim of this illegal arrest me and my then fiancee,we we're illegally arrested by the people "in power" used the certain public office to harrass a foreigner to leave the country. he was arrested without a warrant of arrest accusing him of Human Security Act and all this have as a warrant which they didnt show as by the time of the "arrest" was a mission order to invite my fiancee and his partner. They use excessive force to us and the people with us. They did not read us our rights when they arrested us, been repeatedly asking them what is our violation, but instead of answering me, he headbutted me and did a body search on me and tell me to shut up or else his going to include me in the charges, in which i dont know what in the first place. Can you please sight me an instance that a foreigner can sue this people?

Atty. Gerry T. Galacio said...

Even as a foreigner, you can file the appropriate charges against these police officers. You can retain the services of a lawyer who will help you file a criminal complaint with the fiscal’s office in the town or city where the incident took place.

You can also file administrative proceedings against these police officers with the PLEB (People’s Law Enforcement Board) of the town or city where the incident took place.