Practice Relating to Rule 100. Fair Trial Guarantees
Section E. Necessary rights and means of defence
The Joint Circular on Adherence to IHL and Human Rights (1991) of the Philippines provides: “Legal counsels of detainees or arrested persons must be granted free access to the detention center/jail where the detainees are held.”
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) provides:
While not in combat:
8. Inform the troops that a child taken in custody by government forces in an area of armed conflict should be informed of his/her constitutional rights and shall be treated humanely.
Some of [these] basic rights are “the right to remain silent”, “the right to be presumed innocent until proven guilty”, “the right to be notified of the charge,” “right to counsel”, “right to presence of parents or guardian”, and the “right to confront and cross examine witnesses.”
[emphasis in original]
The Philippines’ Revised Rules of Criminal Procedure (2000), in the rule dealing with the rights of the accused at trial, states:
In all criminal prosecutions, the accused shall be entitled to the following rights:
(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.
The Philippines’ Rule on Juveniles in Conflict with the Law (2002) states:
Sec. 26. Duty of the Family Court to Protect the Rights of the Juvenile. – In all criminal proceedings in the Family Court, the judge shall ensure the protection of the following rights of the juvenile in conflict with the law:
d) To have legal and other appropriate assistance in the preparation and presentation of his defense;
h) To have speedy and impartial trial, with legal or other appropriate assistance and preferably in the presence of his parents or legal guardian, unless such presence is considered not to be in the best interests of the juvenile taking into account his age or other peculiar circumstances.
The Philippines’ Republic Act No. 9344 (2006), the Juvenile Justice and Welfare Act of 2006, provides: “Every child in conflict with the law shall have the following rights, including but not limited to: … (e) the right to prompt access to legal and other appropriate assistance”.
The Philippines’ Republic Act No. 9372 (2007) states:
Rights of a Person under Custodial Detention.
– The moment a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism is apprehended or arrested and detained, he shall forthwith be informed, by the arresting police or law enforcement officers or by the police or law enforcement officers to whose custody the person concerned is brought, of his or her right: (a) to be informed of the nature and cause of his arrest, to remain silent and to have competent and independent counsel preferably of his choice. If the person cannot afford the services of counsel of his or her choice, the police or law enforcement officers concerned shall immediately contact the free legal assistance unit of the Integrated Bar of the Philippines (IBP) or the Public Attorney’s Office (PAO). It shall be the duty of the free legal assistance unit of the IBP or the PAO thus contacted to immediately visit the person(s) detained and provide him or her with legal assistance. These rights cannot be waived except in writing and in the presence of the counsel of choice; (b) informed of the cause or causes of his detention in the presence of his legal counsel; (c) allowed to communicate freely with his legal counsel and to confer with them at any time without restriction.
In its judgment in the Cuizon case in 1996, the Supreme Court of the Philippines stated:
It is clear that appellant Lee was effectively denied his right to counsel, for although he was provided with one, he could not understand and communicate with him concerning his defense such that, among other things, no memorandum was filed on his behalf; further, he was denied his right to have compulsory process to guarantee the availability of witnesses and the production of evidence on his behalf, including the services of a qualified and competent interpreter to enable him to present his testimony. In sum, he was denied due process. For this reason, we hold that the case as against Lee must be remanded to the court of origin for a re-trial.
In the Binamira case before the Supreme Court of the Philippines in 1997, in which the appellant appealed the decision of a lower court that had convicted him of the crime of robbery with homicide, the court reversed and set aside the lower court’s decision and ordered his immediate release from confinement. In doing so, the court noted:
In the present case, Appellant Binamira was not adequately informed of his constitutional right to engage a counsel of his own choice, much less afforded an opportunity to exercise such right …
Moreover, the extrajudicial confession itself shows that, in the course of the custodial investigation, Appellant Binamira was not fully apprised of his constitutional rights. While he was perfunctorily informed of his right to be represented by counsel, it was not explained to him that he
that counsel. More important, he was not given the chance to actually retain such counsel of his choice.
[emphasis in original]
In its judgment in the Liwanag case in 2001, the Supreme Court of the Philippines stated:
Accused-appellant’s citation of People v. Holgado and Powell v. Alabama, insofar as the right to be heard by counsel is concerned, is misleading. Both cases only defined the “right to be heard by counsel” as “the right to be assisted by counsel.” It cannot be inferred from these cases that “the right to be heard by counsel” presupposes “the right to an intelligent counsel.” The requirement is not for counsel to be “intelligent”, but to be effective.
Jurisprudence defined the meaning of “effective counsel” only in the light of Article III, Section 12 (1) of the Constitution, which refers to the right of persons under custodial investigation. In People v. Lucero, the rationale for this constitutional right was elucidated by this Court, to wit:
The 1987 Constitution requires that a person under investigation for the commission of a crime should be provided with counsel. We have constitutionalized the right to counsel because of our hostility against the use of duress and other undue influence in extracting confessions from a suspect. Force and fraud tarnish confessions and render them inadmissible. In providing for said right, this Court has held in the same case that when the Constitution requires the right to counsel, it did not mean any kind of counsel but effective and vigilant counsel. The requirements of effectiveness and vigilance of counsel during that stage before arraignment were for the purposes of guarding against the use of duress and other undue influence in extracting confessions which may taint them and render them inadmissible.
On the other hand, Article III, Section 14 (2) of the 1987 Constitution requires that the accused shall enjoy the right to be heard by himself and counsel. The reason for the latter provision was explained in People v. Holgado, thus:
One of the great principles of justice guaranteed by our Constitution is that “no person shall be held to answer for a criminal offense without due process of law”, and that all accused “shall enjoy the right to be heard by himself and counsel.” In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own.
In essence, the right to be heard by counsel simply refers to the right to be assisted by counsel for the purpose of ensuring that an accused is not denied the collateral right to due process, a fundamental right which cannot be waived by an accused. The underlying basis for due process is the concept of fairness, without which there can be no justice. In other words, there can be no due process accorded an accused if he is not given the right to be heard through counsel or assisted by counsel. It follows that in order to be heard, and therefore be accorded due process, the assistance given by counsel must be “effective” as implied in the rationale of Article III, Section 14 (2). In this sense, this Court subscribes to American jurisprudence when it held that “[t]he right of an accused to counsel is beyond question a fundamental right. Without counsel, the right to a fair trial itself would be of little consequence, for it is through counsel that the accused secures his other rights. In other words, the right to counsel is the right to effective assistance of counsel.”
[emphasis in original]
In the Alejano case before the Supreme Court of the Philippines in 2005, in which the petitioners (six junior officer detainees charged with coup d’état, together with two of their defence lawyers) sought to nullify a Court of Appeals decision to dismiss a petition for habeas corpus, the court dismissed the petition. In response to allegations by the detainees that access to their lawyers was being constrained at their place of detention, the court noted:
In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 [Republic Act No. 7438 – An Act Defining Certain Rights of the Person Arrested, Detained or Under Custodial Investigation] provides the standard to make regulations in detention centers allowable: “such reasonable measures as may be necessary to secure the detainee’s safety and prevent his escape.” In the present case, the visiting hours accorded to the lawyers of the detainees are reasonably connected to the legitimate purpose of securing the safety and preventing the escape of all detainees.
While petitioners may not visit the detainees any time they want, the fact that the detainees still have face-to-face meetings with their lawyers on a daily basis clearly shows that there is no impairment of detainees’ right to counsel. Petitioners as counsels could visit their clients between 8:00 a.m. and 5:00 p.m. with a lunch break at 12:00 p.m. The visiting hours are regular business hours, the same hours when lawyers normally entertain clients in their law offices. Clearly, the visiting hours pass the standard of reasonableness. Moreover, in urgent cases, petitioners could always seek permission from the ISAFP [Intelligence Service of the Armed Forces of the Philippines] officials to confer with their clients beyond the visiting hours.
In the present case, we cannot infer punishment from the separation of the detainees from their visitors by iron bars, which is merely a limitation on contact visits. The iron bars separating the detainees from their visitors prevent direct physical contact but still allow the detainees to have visual, verbal, non-verbal and limited physical contact with their visitors. The arrangement is not unduly restrictive. In fact, it is not even a strict non-contact visitation regulation like in Block v. Rutherford
[468 U.S. 576 (1984)]. The limitation on the detainees’ physical contacts with visitors is a reasonable, non-punitive response to valid security concerns.
[emphasis in original]
In its judgment in the Callangan case in 2006, the Supreme Court of the Philippines stated:
In criminal cases, the right of the accused to be assisted by counsel is immutable. Otherwise, there will be a grave denial of due process. The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned.
In People v. Ferrer, the essence of the right to counsel was enunciated:
The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement
by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his client
. Tersely put, it means an efficient and truly decisive legal assistance
and not a simple perfunctory representation.
[emphasis in original]