Dissension in the Court: September 2010

The following is a decision promulgated by the High Court in September 2010 where at least one Justice felt compelled to express his or her dissent from the decision penned by the ponente.

1. Guilty or Not Guilty (Villarama vs. Carpio and Abad)

The consolidated cases of Lenido Lumanog, et al. vs. People of the Philippines, Cesar Fortuna vs. People of the Philippines and People of the Philippines vs. SPO2 Cesar Fortuna y Abudo, et al., involved the criminal trials and proceedings arising from the macabre ambush-slaying of Colonel Rolando N. Abadilla done in broad daylight in the morning of June 13, 1996.

In the course of police investigations, certain persons were at various stages, identified as suspects (both through sworn statements as well as at police line-ups), apprehended, subjected to custodial investigation and charged in court.

Justice Martin S. Villarama, Jr. went to great lengths to detail the facts of the case, the rulings of the trial court and the Court of Appeals, the evidence for the prosecution and defense and the arguments posited to the Supreme Court by each side.  Although the ponencia touches upon many important aspects of criminal law and procedure, one of the focal constitutional issues discussed in the decision revolved around the rights of the accused during custodial investigation, particularly the right to counsel.

In the Bill of Rights of the Constitution, Article III, Section 12 provides:

Sec. 12 (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

x     x     x

(3) Any confession or admission obtained in violation of this or section 17 hereof (right against self-incrimination) shall be inadmissible in evidence against him.

x     x     x

In implementation of Article Section 12 of the Constitution, Republic Act No. 7438 provides that:

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 private with the person arrested, detained or under custodial investigation.  If such person cannot afford the services of his own counsel, he must be provided by with a competent and independent counsel.

x     x     x

f.  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.

Justice Villarama noted that custodial investigation refers to the critical pre-trial stage when the investigation is no longer a general inquiry into an unsolved crime, but has begun to focus on a particular person as a suspect.  Since it was the case that at the time the accused were arrested by the police they were already considered suspects, they were entitled to the protection of this fundamental constitutional right.

Although in this case, the extrajudicial statements of certain persons (which formed the basis of including others among the accused) were formally taken down in the presence of counsel, Justice VIllarama concluded, based on the then attendant factual circumstances, the constitutional requirement was not observed.  Settled, he stated, is the rule that the moment a police officer tries to elicit admissions or confessions or even plain information from a suspect, the latter should, at that juncture, be assisted by counsel, unless he waives this right in writing and in the presence of counsel.  The purpose of providing counsel to a person under custodial investigation is to curb the police-state practice of extracting a confession that leads appellant to make self-incriminating statements.  In this case, there was evidence adduced that the initial questioning of suspects began at the Central Police District Command (CPDC) station, even before being brought to the Integrated Bar of the Philippines (IBP) Office for the taking of formal statements.

The ponente noted in any case, that even assuming that custodial investigation of the suspect started only during the execution of his formal statement before one of the IBP lawyers to whom the suspect was brought, still the said extrajudicial confession must be invalidated for having failed to comply with the constitutional requirement that the suspect should be assisted by counsel “preferably of his own choice.” A confession is not valid and not admissible in evidence when it is obtained in violation of any of the rights of persons under custodial investigation.

The main decision recognized that while the choice of a lawyer in cases where the person under custodial interrogation cannot afford the services of counsel – or where the preferred lawyer is not available – may be naturally lodged in the police investigators, the suspect has the final choice, as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused when he does not raise any objection against the counsel’s appointment during the course of the investigation, and the accused thereafter subscribes to the veracity of the statement before the swearing officer.

Justice Villarama noted however, that in addition to requirement that counsel must preferably be of the choice of the person under investigation, it is mandatory that such counsel must be independent and competent. He stated that “[w]e held that the modifier competent and independent in the 1987 Constitution is not an empty rhetoric.  It stresses the need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an informed judgment on the choices explained to him by a diligent and capable lawyer.  An effective and vigilant counsel necessarily and logically requires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession.  Moreover, the lawyer should ascertain that the confession is made voluntarily and that the person under investigation fully understands the nature and the consequence of his extrajudicial confession in relation to his constitutional rights.  A contrary rule would undoubtedly be antagonistic to the constitutional rights to remain silent, to counsel and to be presumed innocent.”

In this case, the majority of the justices were of the view that the prosecution failed to prove with clear and convincing evidence that the accused had enjoyed effective and vigilant counsel before he extrajudicially admitted his guilt, and accordingly, the extrajudicial confession cannot be given any probative value.  However, while the Supreme Court struck down the extrajudicial confession extracted in this case in violation of constitutionally enshrined rights and declared it inadmissible in evidence, the appellants were nonetheless not entitled to an acquittal because their conviction was not based on the evidence obtained during such custodial investigation.  Even without these extrajudicial confessions the trial court’s conviction was affirmed, as the testimonial and documentary evidence on record established the guilt of appellants beyond reasonable doubt.

Two justices, Antonio T. Carpio and Roberto A. Abad, dissented with the majority and opined that all of the accused should be acquitted.

Actually, they did not dissent on Justice Villarama’s conclusions with respect to failure to comply with the constitutional requirements regarding assistance of counsel during custodial interrogations.  However, Justice Carpio offers that the in-court testimonies given by witnesses should likewise be inadmissible for being the direct result of an illegal police activity—the coerced extraction of confessions.  Thus, the in-court identification of Joel and the rest of the accused did not cure the flawed out-of-court identification.  Without any credible evidence as to the identity, there would be no basis for holding the accused guilty.

Justice Abad, on the other hand, echoed Justice Carpio’s assertions (which included detailing of various other defects in the manner the police handled the investigation as well as various circumstances that signal an erroneous identification) and added his own observations on why the testimony of the main witness for the prosecution is not worthy of credence.

(Lenido Lumanog, et al. vs. People of the Philippines/Cesar Fortuna vs. People of the Philippines/People of the Philippines vs. SPO2 Cesar Fortuna y Abudo, et al., G.R. Nos. 182555/G.R. No. 185123/G.R. No. 187745. September 7, 2010. See dissenting opinions here:  J. CarpioJ. Abad.)

(author’s note: This author does not have a whole lot of observations regarding the actual points of dissent which essentially highlights how individual justices, being unique individuals, may differ in the manner they appreciate, and weight they give, to evidence, facts and other essential circumstances.  The author merely wishes to note that he yearns for the time when criminal cases are decided solely on the basis of whether an accused is guilty or not guilty of having committed the crime charged, without having things be complicated by deficient conduct, or allegations of deficient conduct, by investigators or lawyers.)

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