The Right Against Self-Incrimination

“I invoke my right against self-incrimination.”  These are the only words that are expected to come out of Janet Napoles’ mouth when she appears at the Senate inquiry on the pork barrel scam on November 7.

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But what was the Philippine law says about this right? Section 12, Article III of the 1987 Philippine Constitution reads:

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.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.

However, the said right has limitations, which are as follows:

1. The right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to which may incriminate himself for some offense that he may refuse to answer on the strength of the constitutional guaranty. However, if the witness becomes an accused in a criminal case, he can altogether avoid being asked any question, by simply refusing to take the witness stand.

2. A witness may refuse to answer questions or give documentary evidence only if the answer or document would incriminate the witness, that is, if it would lead to criminal liability in any jurisdiction.

3. The right against self-incrimination may only be asserted by persons and does not protect artificial entities such as corporations.

4. The privilege does not allow a witness to refuse to answer a question because the response may expose the witness to civil liability, social disgrace, loss of status, loss of private employment or possible embarrassment.

5. A witness may not claim the privilege on the grounds that an answer or document may incriminate a third party. It may be declared only by the witness for himself.

6. The right against self-incrimination covers testimonial compulsion only, and the compulsion to produce real or physical evidence using the body of the accused. However, in the following instances this right cannot be invoked – the taking of body fluids in the body of the witness or accused such as: drug test, DNA, urine and blood sample, physical examination, measurement, picture taking, or any object taken from his body or in his possession like clothes, wallet, jewelry, etc. On the other hand, the following are not permissible—handwriting, signature, and similar incidents which involve the use of intelligence or discretion.

All Filipinos are clamouring for answers to how billions of public funds were siphoned to the pockets of a few – high ranking officials included.  There have been so many unfounded accusations that have implicated various government officials.  These have left more questions than answers.  Now if only it were as easy to make them sing their confession as it was to buy shubb capos at musicians friend, then all these would be over and those who are really involved would be revealed and laid justice.

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