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 Abusing the right: Former AFP comptroller Carlos Garcia (right), accused of amassing millions of wealth from people's money, has repeatedly invoked his Constitutional right against self-incrimination in recent Senate investigation hearings, which also called on retired generals including former AFP Chief of Staff Roy Cimatu (left). RORIE FAJARDO The nation has witnessed many controversies over public funds purportedly amassed by government officials over the past few years. Congressional and Senate investigations are held, Blue Ribbon Committee Hearings convened and much publicity is generated --and temporary media feeding frenzy ensured.
Yet at the end of the day, such investigations are non-judicial in nature and resolve little. Impeachment cases aside where Congress sits as a court, most investigations and hearings can only aid or inform possible future legislation. While they may provide a venue for a public venting of frustration, they ultimately serve only to leave the general public wondering what the ultimate purpose and lasting effect was.
As some probing media commentators have already asked: Did these investigations provide those accused of corruption and graft due process of the law or were they prosecuted by means of coercion, public humiliation or worse? Were they merely victims of publicity stunts of grandstanding politicians?
Is there even a danger that due process and lasting justice be adversely affected by what some may legitimately call a kangaroo court of public opinion – and result in a degree of sympathy that a real court of law could prove to be unwarranted?
Everybody is entitled to their day in a real court.
In legal terms, any person accused of any offense, no matter what his or her status in society has a right to be protected against self-incrimination. It is enshrined in the 1987 Constitution, in Article 3 Section 17 of the Bill of Rights: “No person shall be compelled to be a witness against himself.”
The gold standard of many Western police authorities is the Miranda Doctrine (originating from a US Supreme Court case Miranda vs. Arizona in 1966) -- the right for criminal suspects to remain silent and avoid self-incrimination. It is also a constitutional right. Bayan Muna Rep. Neri Colmenares, a human rights lawyer by profession and currently a member of the prosecution team for the would-be impeachment case of Ombudsman Merceditas Gutierrez told the Philippine Public Transparency Reporting Project that it remained a central tenet of Philippine law.
“No one can force you to testify or witness against yourself. That is your right against self-incrimination. But you can answer any question that will incriminate you and if you admit the accusation against you, that is already a confession. Ang bawal lang naman ay ang pilitin kang sumagot (The only thing prohibited is forcing you to answer.).”
The right against self-incrimination was mainly employed to stop torture during the Inquisition of the 17th century when torture was used to extract information and confession from a suspect deemed to be against the State and Catholic Church in Western Europe. It found certain echoes in the US during the McCarthyite era of the 1950s when pseudo-judicial accusations of subversion and treason were made without due process. While those charged sought to plead the Fifth (US) Amendment – the right to avoid self-recrimination – that defense was by itself viewed by inquisitors as an admission of guilt.
Abusing the right
In recent years, the public have witnessed the Senate inquiry into the NBN-ZTE scandal; the fertilizer fund scam –and most recently the case against Armed Forces of the Philippines (AFP) generals and their wives who allegedly transferred substantial military funds for their own personal gain. General Jacinto Ligot and his wife Erlinda invoked what they saw as their right against self-incrimination, avoiding answering questions raised during the investigation – and yet as a consequence, they were held in contempt by the Senate.
In this particular case, Colmenares maintains there was an abuse in the use of the right. Asking the same question many times over like “how many times did you fly to the United States?” was not in itself an invitation for the couple to incriminate themselves, he told PPTRP.
“It’s not a crime to fly to the US,” Colmenares said. “A witness can invoke his right against self-incrimination only when a question tends to elicit an answer that will incriminate him is propounded [given] to him. However, he may offer to answer any question in an executive session and no person can refuse to testify or be placed under oath or affirmation or answer questions before an incriminatory question is asked. His invocation of such rights does not by itself excuse him from his duty to give testimony.”
The courts or the Senate can invoke a legal remedy to those who they see as intending to abuse the right by citing them in contempt.
Even former President and now Pampanga Rep. Gloria Macapagal-Arroyo, was quoted recently in media reports claiming the right against self-incrimination, while refusing to be a witness in the Sandiganbayan hearing of the graft charges against former National Economic Development Authority (NEDA) Secretary Romulo Neri. Arroyo claimed that she too is accused in the scuttled NBN-ZTE deal and therefore is not an “ordinary witness”. But the prosecution insisted that she could stand witness and later invoke her right against self-incrimination if such a question is asked.
Faulty system
Professor Bobby Tuazon, a political analyst and currently the Policy Director of the Center for Peoples Empowerment and Governance (CeNPEG), views the abuse or misuse of the right against self-incrimination as systemic in origin. Tuazon says that the government lacks measures to quell corruption, bribery and human rights violations.
“Unfortunately, we do not have a good system of transparency and accountability. Even without cases filed or charges heard in Congress and people should be allowed to have access in public deliberations and to documents inside the government,” Tuazon told PPTRP.
He said the right to self-incrimination is a due process accorded by law and should be exercised by anybody who is charged especially those who were unjustly charged of any offense.
Rep. Colmenares agrees. “As a general rule, the right against self-incrimination should not be taken out, that is human rights,” he said. He added that right against self-incrimination should not go against right to public information. “We all need this right.”
The right against self-incrimination, therefore can be used by anybody. It is a part of the due process of law. What the government should do to prevent abuse of the right, is to make the systems work properly, competently and judiciously.
For their part, the media and the general public must be vigilant in ensuring government transparency and the exercise of the public’s right to information to counter the misuse and abuse of the accused, especially the powerful and influential, to the right against self-incrimination. Philippine Public Transparency Reporting Project
(The author is the photojournalist of Pinoy Weekly Online. He is also an activist and an advocate for children’s rights.)
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What's wrong with these photos (apart from the blocked out bits)? 
