TOPIC: The Rights of Persons Arrested, Detained, or Under Custodial Investigation under R.A. No. 7438

I. Overview of R.A. No. 7438

Republic Act No. 7438, also known as “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,” was enacted on April 27, 1992. It was implemented to ensure that the rights of individuals arrested, detained, or under custodial investigation are protected, in line with the guarantees provided by the 1987 Philippine Constitution, particularly Article III (Bill of Rights), Section 12.

II. Key Rights of Persons Under Custodial Investigation (R.A. No. 7438)

1. Right to Be Informed of Rights

Under Section 2(a) of R.A. No. 7438, it is mandated that persons arrested, detained, or under custodial investigation must be informed of the following rights:

Right to remain silent.
Right to have competent and independent counsel, preferably of their own choice.
Right to be informed that if they cannot afford the services of counsel, they must be provided with one.

This is consistent with Section 12(1) of the 1987 Constitution, ensuring that an individual in custody is aware of his/her rights, to prevent self-incrimination and safeguard the dignity of the person.

2. Right to Competent and Independent Counsel

Choice of Counsel: The arrested person has the right to counsel of his/her own choice. In cases where the person cannot afford a lawyer, the law mandates that an independent counsel be provided by the State at no cost. The lawyer must be competent and independent to ensure that the suspect’s rights are fully protected (Section 2(b)).
Mandatory Presence of Counsel: During the entire period of custodial investigation, no waiver of the right to counsel shall be valid unless it is made in writing, in the presence of counsel (Section 2(d)).
No Deprivation of Counsel: The law prohibits any individual under investigation from being prevented from conferring with counsel (Section 2(b)).

3. Prohibition on Torture, Violence, Threats, or Intimidation

Under Section 2(c), any use of force, violence, intimidation, threats, or other forms of coercion to extract information, confessions, or admissions from the individual under investigation is strictly prohibited. This provision safeguards the individual's dignity and human rights, reflecting the State's obligation to prevent torture and ensure humane treatment.

In addition to R.A. No. 7438, Republic Act No. 9745 (Anti-Torture Act of 2009) further strengthens this protection by criminalizing torture and any forms of inhumane treatment.

4. Custodial Interrogation and Recording Requirements

Section 2(f) of R.A. No. 7438 mandates that any confession or admission obtained from a person under custodial investigation must be in writing and signed in the presence of counsel. If the confession is oral, it must be written and signed or otherwise formalized.

5. Waiver of Rights

Waivers of the rights mentioned in R.A. No. 7438 are only valid if made knowingly, intelligently, and voluntarily. For a waiver to be valid, it must be made in writing and in the presence of the person’s counsel (Section 2(d)). This provision prevents the coercive extraction of waivers or admissions during custodial investigation.

III. Duties of Arresting, Detaining, and Investigating Officers

1. Duty to Inform the Person of Their Rights

The arresting, detaining, or investigating officer must inform the arrested person, detained individual, or suspect of their rights during custodial investigation, as specified under Section 2(a). Failure to do so will result in a violation of the law and possible criminal sanctions.

2. Duty to Provide Counsel

If the person cannot afford counsel, it is the duty of the arresting officer to provide competent and independent counsel at no cost (Section 2(b)). The law mandates that a lawyer must be made available during custodial investigation, and this must be respected at all times.

3. Duty to Allow the Presence of Family and Legal Representatives

Under Section 2(e), the arresting or detaining officer must allow relatives, legal counsel, doctors, and even religious ministers to visit or consult with the person under custodial investigation. This duty applies especially during the first 48 hours of detention and is crucial to ensuring the suspect’s well-being and legal rights.

IV. Penalties for Violations of R.A. No. 7438

Section 4 of R.A. No. 7438 provides for penalties for violations of the rights of persons under custodial investigation. Public officials or employees, or any arresting officer who fails to observe the rights provided by the law may face imprisonment, fines, or both, depending on the gravity of the violation. This provision serves as a deterrent against abuses committed by law enforcement authorities.

Imprisonment: Penalties range from 8 years and 1 day to 10 years of imprisonment.
Fines: A fine ranging from ₱6,000.00 to ₱10,000.00 may also be imposed, depending on the violation.

V. Related Constitutional Provisions (1987 Constitution)

1. Section 12, Article III of the 1987 Constitution:

This section explicitly provides that any person under investigation for the commission of an offense shall have the right to be informed of his rights to remain silent and to have competent and independent counsel, preferably of his own choice.
It also provides that any confession or admission obtained in violation of these rights shall be inadmissible in evidence against the person.
The State is further tasked to enact laws and provide penal sanctions for violations of these rights.

2. Section 2, Article III of the 1987 Constitution:

This section enshrines the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. It provides the legal basis for protection from arbitrary arrest or detention, thereby relating closely to the custodial investigation framework under R.A. No. 7438.

VI. Jurisprudence on R.A. No. 7438

Numerous Supreme Court decisions have expounded on the scope and application of the rights under R.A. No. 7438:

People v. Javar (G.R. No. 158071, 2008): The Court emphasized the inadmissibility of confessions made without the presence of counsel, reaffirming the mandatory requirement of legal assistance during custodial investigation.
People v. Mahinay (G.R. No. 122485, 1997): This case reiterated that the waiver of the right to counsel must be executed with the assistance of a lawyer and that confessions made without counsel are inadmissible.
People v. Bacamante (G.R. No. 142930, 2001): The Court ruled that the failure to inform the arrested person of their rights under R.A. No. 7438 amounts to a violation that voids any confession or admission obtained during custodial investigation.

VII. Conclusion

R.A. No. 7438 provides a robust framework for protecting the rights of individuals arrested, detained, or under custodial investigation, in line with constitutional principles. The law's emphasis on informed rights, the right to counsel, the prohibition of coercion, and the penalties for violation underscore the Philippines' commitment to human rights and due process in law enforcement procedures. Compliance with these safeguards is crucial for upholding the rule of law and preventing abuses during custodial investigation.