The administration seems to have a fetish for shooting itself in the foot (or, as happened to one Southern Luzon mayor I know, in the testicles), but to paraphrase Britney Spears, “oops, I did it again.”
Not having learned from the mistakes of having former President Duterte shanghaied off to The Hague; or the brazen trampling of our constitutional rights by the QuadComm; or the massive insertions in the 2025 national budget — all of which caused tremendous pushback that resulted in the current extreme unpopularity of the President — here comes his administration again showing a scandalous disregard for the rule of law.
The well-publicized arrest of former Air Force general Romeo Poquiz upon his arrival in the country last week had resulted in such a huge backlash that it may have directly led to at least one senior military officer (Col. Audie Mongao) openly withdrawing his support from the Commander-in-Chief. It could have been handled better, especially the blatant denial of Poquiz’s right to confer with his lawyer upon his arrest, which was done in full view of the media.
I have recently seen a spate of opinions by fellow members of the Bar saying that our demand to see our client, former Air Force General Romeo Poquiz at the NAIA, had no basis in law. Compañeros, I hate to be so blunt, but you are DEAD WRONG!
When laymen misinterpret the law, it may be comical but understandable (think Dan Fernandez). When lawyers do it, it is downright unforgivable.
There appears to be the erroneous belief among some of my brethren in the profession that the right to counsel is triggered only when a person is under custodial investigation, as stated in the Constitution. But being under custodial investigation is NOT the only time a person is entitled to counsel.
A 1992 law, Republic Act 7438, provides that “(a)ny person ARRESTED, detained or under custodial investigation shall at all times be assisted by counsel.” Thus, there are three instances wherein a person “shall AT ALL TIMES” be assisted by counsel: when he is arrested OR detained OR under custodial investigation.
The word used is “arrested.” It does not say whether the arrest is warrantless under Rule 113 of the Rules of Court, or arrests made by judicial warrant. Ubi lex non distinguit nec nos distinguire debemos. When the law does not distinguish, we should not distinguish.
The same lawyers placed undue emphasis on Section 12 of Article III, which states that only those under custodial investigation have the right to counsel. They would not be wrong. But they would not be totally right. That provision is by no means exclusionary. RA 7438 has expanded the right to counsel. And when it comes to fundamental constitutional rights, the rule is semper praesumo in favorem maiora iura. Always presume in favor of greater rights.
Secondly, Article 14(2) of the same Article III of the Constitution provides for the right to counsel “in all criminal prosecutions.” The service of an arrest warrant, issued after an information is filed in court and the finding of probable cause, initializes criminal proceedings. An arrest is made to ensure that the court may have jurisdiction over the person of the accused; otherwise, the trial cannot proceed and the case is archived. Differently stated, arrest (or surrender) is the first requisite for a criminal trial.
Therefore, under RA 7438, the taking of the accused into custody upon the service of an arrest warrant is the operative act that triggers the constitutional and statutory right to counsel.
Any other interpretation is not only erroneous, but it is dangerous; it will whittle away a basic right provided by the Constitution, by domestic law and — in addition — by provisions of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights which form part of our laws under the doctrine of incorporation.
It will definitely arrest the development of civil liberties in this country.