Every person has the natural right to self-preservation which is the root of the doctrine of self-defense and an aggregate of rights such as the right to remain silent, avert self-incrimination and to a competent and independent lawyer of a person in custodial investigation which is not empty rhetoric as a suspect, secluded from kin, badly needs the guiding hand of an effective and vigilant counsel (People v Peñaflor 766 Phil. 484 (2015). Legal representation can legitimize acts divergent of self-preservation.

Separated from the outside world, a person under custodial investigation finds himself or herself alone in a stress-filled and nerve-wracking environment of a police station or a military facility where human rights can be slaughtered with impunity. Disquietude ushers in survival mode that is determined to put an end to trouble even at the expense of the truth. A person’s will can easily crumble to interrogation procedures that are fertile grounds for coercion, both physical and psychological, devised to force a confession to a crime he or she may or may not have committed. The irony of this right to competent and independent counsel is seen in its purpose – to ensure the voluntariness of a confession that is perverse to his or her self-preservation.

Effective and vigilant lawyering goes beyond token participation in the custodial interview. A lawyer so engaged by the person of interest should be present at all stages of the custodial interview, spontaneously counselling or advising caution at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview. The counsel should be present from the time the confessant answers the first question until the signing of the extrajudicial confession, ascertaining the voluntariness of the confession and that the confessant fully understands the nature and the consequence of his extrajudicial confession.

As much as possible, the lawyer must be one provided by the family of the person in detention. Doubts persist on the voluntariness of an extra judicial confession made with the assistance of a police-provided lawyer, notwithstanding testimonials on the lawyer’s probity and supposed independence, since in many areas a symbiotic relationship exists between lawyers and law enforcement authorities (People v Obrero, 387 Phil. 937 (2000)). PAO lawyers by analogy raises qualms on the quality of lawyering afforded the confessant.

Corollary to the constitutional right to a lawyer is the mandatory requirement under Section 2(d) of RA 7438 that requires an adult family member, or the municipal mayor or municipal judge, or district school supervisor, or priest or minister of the gospel to be chosen by him executing an extra judicial confession to be present and stand as witness. Otherwise, such extrajudicial confession shall be inadmissible evidence in any proceeding.

In People of the Philippines vs. Jaynard Agustin [ G.R. No. 247718, March 03, 2021] a 12-year-old girl was raped and killed in a sugar plantation on November 1, 2010. Mr. Agustin, an illiterate person who only spoke Ilokano, admitted committing the heinous crime in a written extra judicial confession assisted by a lawyer provided for him by the PNP. Agustin and that lawyer were given only two minutes to confer with one another, and the written confession required constant translations from Ilokano to English. Both RTC and CA found Agustin guilty beyond reasonable doubt of having committed rape with homicide. Agustin raised the invalidity of his extra judicial confession for non-conformance with RA 7484 and Section 12 Article III of the Constitution. It appears that said lawyer’s role was limited to being a mere witness to the affixing of the thumbprint by Agustin. The Supreme Court said that such token participation is not the kind of legal assistance that should be afforded to him.

The right of a person under custodial investigation to be informed of his miranda rights necessitates an effective communication that results in an understanding thereof. Comprehension is the objective and the degree of explanation required will essentially depend on the education, intelligence, and other relevant personal circumstances of the person undergoing investigation (People v. Canoy, 385 Phil. 73 (2000). A routine, peremptory and meaningless recital thereof will not suffice. People v. Porio, 427 Phil. 82 (2002). Agustin’s illiteracy and monolingualism prompt a higher degree of scrutiny in determining whether he understood his rights as allegedly communicated to him. Hence, the extrajudicial confession executed by Agustin, even if gospel truth, is deemed an uncounseled confession, and must be struck down as inadmissible in evidence.

Our Constitution, laws and jurisprudence dearly value individual life and liberty and the right to a competent and independent lawyer safeguards self-preservation that is rarely surrendered voluntarily. Seen in this light, the key to unveil facts surrounding the mess between NTF-ELCAC and the two women environment advocates that disavowed the contents of their balikloob affidavits is evaluating whether the PAO lawyer merely dispensed token participation or appeared as a competent and independent counsel for the two affiants.

Atty. Magi Gunigundo is a former lawmaker, civil law instructor, and author of law books. He is also an education reformer and an advocate of anticipatory governance.