Section 12 (1), Article III of the 1987 Constitution

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.
This right is absolute and applies even if the accused himself is a lawyer. The right is more
particularly the right to independent and competent. An independent counsel is one not hampered
with any conflicts of interest, and a competent counsel is one who is vigilant in protecting the
rights of an accused.

Requirements of a competent & independent counsel

People v. Januario, 267 SCRA 608 (1997)

Facts:
 Januario and friends were accused with violation of Anti-Carnapping Law for stealing one
Isuzu passenger type jeepney, after killing its driver and conductor.
 The NBI team took the statements of the accused one at a time with the help of Atty. Saunar.
 In convicting Januario and friends, the trial court relied upon their extrajudicial confessions,
extracted and signed in the presence and with the assistance of a lawyer, Atty. Saunar, who
was applying for work in the NBI.
 Januario and friends allege that their extrajudicial confessions are inadmissible in evidence
for having been extracted in violation of their constitutional right to a competent and
independent counsel.
Issue: Whether Atty. Saunar was a competent and independent counsel of the accused.
Ruling:
1. No. Atty. Saunar is not a competent and independent counsel.
2. Section 12 (1), Article III of the 1987 Constitution requires that a person under investigation
for the commission of an offense shall have no less than "competent and independent counsel
preferably of his own choice.”
3. An independent counsel is one not hampered with any conflicts of interest, and a competent
counsel is one who is vigilant in protecting the rights of an accused.
4. In the case, Atty. Saunar was not the choice of accused Januario as his custodial investigation
counsel. Saunar's competence as a lawyer is beyond question. Under the circumstances
described by the prosecution however, he could not have been the independent counsel
solemnly spoken of by our Constitution. He was an applicant for a position in the NBI and
therefore it can never be said that his loyalty was to the confessants.
People v. Bagnate, G.R. No. 133685-68 May 20, 2004
Facts:
 Bagnate was accused for the crime of Murder and Rape. Bagnate was turned over to SPO2
Ambion. SPO2 Ambion informed him of his constitutional rights which Bagnate
acknowledged that he clearly understood.
 Bagnate told SPO2 Ambion that he is willing to confess. He was assisted by Atty.
Brotamonte whom the Bagnate accepted. Bagnate confessed on the crimes charged. After
typing the confessions, Atty. Brotamante and Bagnate signed thereon.
 Bagnate contested the admissibility of his extra-judicial confession pointing out that it was
executed in violation of his constitutional rights, particularly his right to a competent and
independent counsel. He allege that he was not fully apprised of the consequences of his
confession.
Issue: Whether Bagnate’s constitutional right to have a competent and independent counsel was
violated thereby rendering his extra-judicial confession inadmissible.
Ruling:
1. No, Bagnate’s constitutional rights were not violated.
2. What the Constitution regards as inadmissible in evidence is confession given by an accused
without having been informed of his right to remain silent, or, without having been given
competent and independent counsel, preferably his own choice, or if he cannot afford the
services of counsel, he was not provided with one; or the waiver of his rights was not in
writing and not in the presence of counsel; or, that he was tortured, forced, threatened,
intimidated, by violence or any other means that vitiated his free will. 
3. In the case, the failure of Atty. Brotamante to apprise appellant of the imposable penalty of
the crime he was to admit is not a sufficient ground to strike down appellant’s extra-judicial
confession.
4. There is nothing in the Constitution that mandates a counsel to inform an accused of the
possible penalty for the crime he committed. Neither would a presumption arise that the
counsel is incompetent or not independent just because he failed to apprise the accused that
the imposable penalty for the crime he was about to admit is death. 

Counsel of choice
People v. Gallardo, G.R. No. 113684, January 25, 2000
Facts:
 Gallardo, together with his co-accused were accused with murder for killing Orizal. They
were investigated by SPO4 Marcos, and they gave statements admitting that they killed
Orizal.
 During the course of the investigation, they were assisted by Atty. Velasco whom they
accepted as counsel. Accused-appellants signed their statements admitting the killing.
 Gallardo and friends contested the admissibility of the extra-judicial confession.
Issue: Whether the counsel must be known to the accused prior to investigation.
Ruling:
1. No, it is not required.
2. There is no requirement in the Constitution that the lawyer of an accused during custodial
investigation be previously known to them. The Constitution provides that the counsel be a
competent and independent counsel, who will represent the accused and protect their
Constitutionally guaranteed rights.
3. In addition, while the initial choice of the lawyer in cases where a person under custodial
investigation cannot afford the services of a lawyer is naturally lodged in the police
investigators, the accused really has the final choice as he may reject the counsel chosen for
him and ask for another one.
4. In the case, although Atty. Velasco was provided by the State and not by the accused
themselves, the accused were given an opportunity whether to accept or not to accept him as
their lawyer. They were asked and they immediately agreed to have Atty. Velasco as their
counsel during the investigation.

People v. Barasina, 229 SCRA 450 (1994)

Facts:
 Barasina was accused with illegal possession of firearm and murder for killing Fiscal Mayo.
He executed an extra-judicial confession for the crimes charged while assisted by Atty.
Torres.
 Barasina contested the admissibility of the extra-judicial confession raising that the manner
of the extra-judicial confession were extracted from him in the absence of a lawyer of his
own choice.
Issue: Whether Barasina’s right to have a counsel of his own choice was violated.
Ruling:
1. No, there is no violation.
2. Section 12(1), Article 3 of the 1987 Constitution requires 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.
3. The word “preferably” under this provision does not convey the message that the choice of a
lawyer by a person under investigation is exclusive as to preclude other equally competent
and independent attorneys from handling his defense. If the rule were otherwise, then, the
tempo of a custodial investigation will be solely in the hands of the accused who can impede,
 nay, obstruct the progress of the interrogation by simply selecting a lawyer who for one
reason or another, is not available to protect his interest.
4. In the case, Barasina failed to indicate in any manner and at any stage of the process that he
wishes to consult with an attorney of his own preference before speaking or giving any
statement. Indeed, there is no showing that he manifested any resistance when he was
assisted by Atty. Torres.

Counsel’s presence required in entire proceedings

People v. Lauga, G.R. No. 186228, March 15, 2010
Facts:
 Lauga was accused of qualified rape committed against his 13-year old daughter. One of the
witnesses for the prosecution was Moises Boy Banting, a bantay bayan in the barangay.
 He invited Lauga to the police station, to which Lauga obliged. At the police outpost, Lauga
admitted to him that he raped his daughter AAA because he was unable to control himself.
 Lauga contested the admissibility in evidence of his alleged confession with Banting. He
argues that even if he, indeed, confessed to Banting, a “bantay bayan,” the confession was
inadmissible in evidence because he was not assisted by a lawyer and there was no valid
waiver of such requirement.
Issue: Whether the extra-judicial confession made before a bantay bayan without the assistance
of a lawyer, admissible in evidence.
Ruling:
1. No, the extra-judicial confession by Lagua is not admissible.
2. Barangay-based volunteer organizations in the nature of watch groups, as in the case of the
"bantay bayan," are recognized by the local government unit to perform functions relating to
the preservation of peace and order at the barangay level.
3. Thus, without ruling on the legality of the actions taken by Banting, and the specific scope of
duties and responsibilities delegated to a "bantay bayan," particularly on the authority to
conduct a custodial investigation, any inquiry he makes has the color of a state-related
function and objective insofar as the entitlement of a suspect to his constitutional rights
provided for under Article III, Section 12 of the Constitution, otherwise known as the
Miranda Rights, is concerned.

People v. Morial, G.R. 129295, August 15, 2001

Facts:
 Morial and friends were accused of the crime of robbery with homicide. They were invited to
the police station and was turned over to SPO4 Fernandez. Then, SPO4 Fernandez
 volunteered to obtain a lawyer for Morial. Atty. Aguilar was contacted by SPO4 Fernandez
to assist the accused.
 Later, Atty. Aguilar met Morial and informed him of his rights under custodial investigation.
The investigation was conducted by SPO4 Fernandez with the presence of the counsel. After
“all material points” were asked, Atty. Aguilar left due to very important engagement.
 During and despite Atty. Aguilar’s absence, SPO4 Fernandez continued with the
investigation.
Issue: Whether Morial’s extra-judicial confession in the absence of his counsel in admissible in
evidence.
Ruling:
1. No, the extra-judicial confession is inadmissible as evidence.
2. Section 3, Republic Act No. 7438 provides that in the absence of any lawyer, no custodial
investigation shall be conducted.
3. Morial was effectively deprived of his right to counsel during the custodial investigation;
therefore his quasi-judicial confession is inadmissible in evidence against him and his other
co-accused. The Court stressed out that an accused under custodial interrogation must
continuously have a counsel assisting him from the very start thereof. SPO4 Fernandez
cannot justify that Atty. Aguilar only left after Leonardo had admitted that he and his
companions committed the crime. Neither can Atty. Aguilar rationalize that he only left after
Leonardo had admitted the “material points”, referring to the participation of the three
accused to the crime.
4. In addition, Section 12(1), Article 3 of the 1987 Constitution provides that the right to
counsel cannot be waived except in writing and in the presence of counsel.
5. Even granted that Leonardo consented Atty. Aguilar’s departure during the investigation and
to answer questions during the lawyer’s absence, such consent was an invalid waiver of his
right to counsel.