The rights of the accused consists of a collection of rules and statutes accused, to circumvent abuses from the authority
ity and other
that protect a person accused of a civil or criminal offense.
.
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
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
law enforcement officer and be punished accordingly.
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.lawphi1Ÿ
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 individual’s 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 non-governmental organization duly
accredited by the Office of the President. The person's
"immediate family" shall include his or her spouse, fiancé
or fiancée, 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 non-governmental 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 person’s “immediate family” shall include his or her
spouse, fiancé or fiancée, 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;lawphi1©alf
(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 can’t be
proceed nor conducted and the suspected person can only be
detained by the investigating officer in accordance with the needs, at any hour of the day or, in urgent cases, of the
provisions of Article 125 of the Revised Penal Code. night shall suffer the penalty of imprisonment of not
less than four (4) years nor more than six (6) years,
These rights are guaranteed by the Constitution and our laws to and a fine of four thousand pesos
a person under investigation and should the investigating (P4,000.00).lawphi1©
officers violate them, they may be subjected to appropriate
The provisions of the above Section notwithstanding, any
criminal, civil and administrative charges. security officer with custodial responsibility over any detainee or
prisoner may undertake such reasonable measures as may be
Section 4. Penalty Clause. – (a) Any arresting public officer or necessary to secure his safety and prevent his escape.
employee, or any investigating officer, who fails to inform any
person arrested, detained or under custodial investigation of his A person under a normal audit investigation is not considered to
right to remain silent and to have competent and independent be under custodial investigation since a COA audit examiner isn't
counsel preferably of his own choice, shall suffer a fine of Six considered an arresting officer under RA 7438 (Navallo vs.
thousand pesos (P6,000.00) or a penalty of imprisonment of Sandiganbayan, 234 SCRA 175.)
not less than eight (8) years but not more than ten (10) years,
or both. The penalty of perpetual absolute disqualification
Section 5. Repealing Clause. – Republic Act No. No. 857, as
shall also be imposed upon the investigating officer who has
amended, is hereby repealed. Other laws, presidential decrees,
been previously convicted of a similar offense.
executive orders or rules and regulations, or parts thereof
inconsistent with the provisions of this Act are repealed or
The same penalties shall be imposed upon a public modified accordingly.
officer or employee, or anyone acting upon orders of
such investigating officer or in his place, who fails to
Section 6. Effectivity. – This Act shall take effect fifteen (15)
provide a competent and independent counsel to a
days following its publication in the Official Gazette or in any
person arrested, detained or under custodial
daily newspapers of general circulation in the Philippines.
investigation for the commission of an offense if the
latter cannot afford the services of his own counsel.
Approved: April 27, 1992.lawphi1Ÿ
(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