You always see it on TV and the movies. The police, after cornering the suspect, bellows out: “Freeze a**hole! You have the right to remain silent. Anything you say can and will be used against you in the court of law.” This lump of rights, plus the right to counsel and sans the “freeze”, is called the Miranda rights.
The Miranda rights stem from the landmark decision of the United States Supreme Court in Miranda v. Arizona. The Miranda doctrine requires that: (a) any person under custodial investigation has the right to remain silent; (b) anything he says can and will be used against him in a court of law; (c) he has the right to talk to an attorney before being questioned and to have his counsel present when being questioned; and (d) if he cannot afford an attorney, one will be provided before any questioning if he so desires.
This doctrine is enshrined in Article 3, Section 12 (1) of the Constitution, which provides:
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.
Compared to what is originally laid out in Miranda v. Arizona, Philippine law provides for more stringent standards – where the right to counsel was specifically qualified to mean competent and independent counsel preferably of the suspect’s own choice. Waiver of the right to counsel likewise provided for stricter requirements compared to its American counterpart; it must be done in writing, and in the presence of counsel. Any confession or admission obtained in violation of the requirements under the Miranda rights shall be inadmissible in evidence against the accused (Art. 3, Sec. 12 [3], Constitution).
The right to counsel was discussed in the leading cases of People vs. Galit and Morales, Jr. vs. Enrile, which rulings were subsequently incorporated into the present Constitution.
The right against deprivation of liberty is guaranteed by no less than the Constitution, which states that “[n]o person shall be deprived of life, liberty or property without due process of law xxx” (Article 3, Section 1) and that “[n]o search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.” (Art. 3, Sec.2) This right has been characterized by the Supreme Court as “a most basic and fundamental” right that has been “often violated and so deserving of full protection”.
As a rule, no arrest may be made without a warrant of arrest. The exceptions [also referred to as warrantless arrests] under the Revised Rules on Criminal Procedure (Rule 113, Sec. 5) are arrests made by a peace officer or a private person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
Sec. 5 (a) is also referred to as arrests in flagrante delicto, wherein two elements must exist: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. For an extended legal discussion on in flagrante delicto and hot pursuit arrests, click here, here or here.
On the other hand, Section 5 (b) refers to arrests made in hot pursuit, wherein two requisites must exist: (1) an offense has in fact just been committed; and (2) the arresting officer has probable cause based on personal knowledge of facts or circumstances indicating that the person to be arrested committed the offense.
Source: People vs. Mojello.
hi, Atty. Fred… I just would like to ask if the right of the accused against self-incrimination is also available to a student under disciplinary proceedings and if there’s already existing jurisprudence.. I will report on this topic.. Thank you and God bless.
good day sir!i have this credit 10,000.00 which becomes 20,000.00 now) from teresa lending investor. after 9 moths it was sold to abubot lending investor.i was not able to pay for one year because of financial constraint, my father got sick and died so i shoulder everything plus my family, i have ten kids.I was pestered by abubot lending,i was harassed at my work( i’m a teacher) and in my house, by abubot which i did not experience from teresa lending.i want to pay them, in fact i will pay them but i want to know if they have all the rights in this world to harass me. i was sent a summon indicating “second hearing” when in fact it was the first summon”.my questions are
1. can i pay them @ 1k per month (we will have hearing on sunday, tomorrow. am i not violating any law?
2. is a debt transferable from one company to another like abubot and teresa lending
thanks!
Good day ma’am. This is Abubot Lending Corp. I’m Googling for ‘abubot lending’ to search for something then I found a link to this. I would like to clarify things up. The reason why you failed to settle or update your account in TLIC is because their former collectors was not “pestering” you enough, as you put it. No wonder you haven’t made a single payment for one year. Their collection system was different from ours. We know that because we employed one of their collectors; thus, sharing the whereabouts of his former system and kind of service. Our collectors job is to collect, find ways to collect, find the client to collect. Our collectors are just doing their job. It is required from them to find the client, especially a delinquent one, wherever he/she is, to establish a solid agreement or plan of payment. It is required even more when the said client couldn’t even keep his/her promise. Regarding the pestering and harassing, we are compelled to doubt your accusations because, as per experience, those same accusations commonly come from our problem accounts; the delinquent ones. We never hear those complaints from good clients. And of course, legally, as long as it’s all hearsay, and you don’t have a solid proof, we have nothing to talk about. And as I’ve said, you did not experience our collection system from TLIC because it was different from ours. Look at where it put your account.
Regarding the brgy. hearings, you can always check their records for confirmation. Why would it deceive you in favor of us when they ought to be fair on you because they’re your own “ka-barangays”? Isn’t it unfair and judgmental to think otherwise? If you have complaints about it, it’s not our responsibility.
To answer your questions:
1. Your 30 days (1 month) accumulated interest based on the 10,000 balance is 448.00. Yes you can pay 1,000.00 per month, consecutively; otherwise, your interest will accumulate further.
2. I believe a debt is transferable when it is included in the sale of property/company, but you have a right to ask a lawyer for confirmation, of course. Yes, your account and all its interest and penalty was also sold to us. FYI, the transfer of your account to Abubot Lending Corporation was actually a good thing, because our rate for the delinquent account is the same as the current accounts; unlike in TLIC, which increases and let me tell you, it’s higher than ours. And also, you have to pay for a penalty upon failure to pay on schedule, percentage is based on the amortization schedule, which ALC doesn’t employ.
Ma’am I believe we got off the wrong foot. You can always communicate to us in our office for agreement or plans you have in mind, and we will accommodate if it deems fair. You can complain immediate incidents that our staff did/do against you in order to reprimand who deserves, or come to an understanding. Believe it or not, we only want to help you settle your account the most convenient way for you as possible. All we need is cooperation, compromise, and compliance. Thank you.
Gandang araw po atty. Itatanong ko lang sana kung me pagkakasala po ako sa pagpapahiram ng tseke sa isang kaibigan o asawa na ginwang collateral sa utang npara pautangin sya,
Sir how about the warrant of arrest was issued oct 20 then the person is arrested nov 3 at 5:30pm weekend (friday) means no bail at saturday and sunday. Can we file a complain to the arresto?
Hi attorney, nakautang po ako sa isang Tao worth 100k, nag issue ako ng checke.Di po ako nakabayad kahit ni singko due to the fact na humina ang negosyo ko hanggal na bank crupt po. Yong pera na inutang ko di nman po ako lahat ang gumamit Bali yong 40 k ay hiniram ng kaibigan ko n di rin bumayad sa akin ni Singko. In short, ako now ang sinisingil dahil sa pangalan ko ang umutang. Nasa labas po ako ng bansa , gustohin ko mm bumayad sa Kanya pakunti kunti pero ayaw Nya dahil nasa korte n ang case ko. At nagkataon din n nagkasakit ang tatay ko ng cancer n ako din halos lahat pampagamot pa. Pag Ganito ba attorney na di ako nakabayad ma issuehan b ako ng warrant of arrest. Gusto ko po umuwi ng pinas para bisitahin ang tatay ko pero natatakot po ako Baka hulihin po ako at di n ako makabalik sa abroad.
Hi. Is it legal for a company like Home Credit to “harrass” their clients even when the loan is not yet due? There are so many complaints about this and I’ve experienced this myself. They will call you, not less than 5 times a day to remind you of your loan which is not even due yet! That is harrassment! Is there a case we can file against this company? Thanks!