The 1987 Constitution, in Article III, Section 17, provides that “no person shall be compelled to be a witness against himself.” The phrase “self-incrimination” does not appear. Nor does it appear in Section 12 of the same Article III on the rights of a person in custodial investigation which provides, among others, for the “right to remain silent.”
Also, under the Rules of Criminal Procedure, particularly Rule 115, Section 1(e), an accused at trial is exempt from being compelled to be a witness against himself. The phrase self-incrimination does not appear. Likewise, self-incrimination is not used in Article VI, Section 21 of the Constitution in reference to inquiries in aid of Legislation. Section 21 provides that, “The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedures. The rights of persons appearing in, or affected by, such inquiries shall be respected.”
Why is this “right against self-incrimination” invoked everytime a witness refuses to answer a difficult question in Senate or House investigative hearings? Is this right without any limitations?
The landmark case of People v. Ayson (175 SCRA 1989, 225-230 [1989]) distinguishes between “the right against self-incrimination” and “the rights in custodial investigation.” The first right, against self-incrimination [Article III, Section 17], is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal or administrative proceedings. The right is not to “be compelled to be a witness against himself.” It prescribes an “option of refusal to answer incriminating questions” and not a prohibition of inquiry. It simply secures to a witness, whether he or she be a party, the right to refuse to answer any particular incriminating question, i.e., one to which has a tendency to incriminate him or her for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed or to refuse to testify altogether. The right against self-incrimination is not self-executing or automatically operational. It must be claimed. If not claimed, by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly or impliedly, as by a failure to claim it at the appropriate time” (People v. Ayson, at pp. 27-28).
“The rights in custodial investigation [Article III, Section 12] apply to persons ‘under investigation’ for the commission of an offense, i.e. suspects under investigation by police authorities.” This was not in the 1935 Constitution. It is avowedly derived from the decision of the United States Supreme Court (SC) in Miranda v.
Arizona (384 US 436, 16 L. Ed. 694), a decision described as an “earthquake in the world of law enforcement.” In Miranda Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, “in custody interrogation being regained as the commencement of an adversary proceeding against the suspect” (People v. Ayson, at pp. 228-229).
Understandably, People v. Ayson, decided by the SC in 1989 before Senate/House inquiries became a fad, does not expound on the right against self-incrimination in investigative inquiries in Congress. However, the Senate has provided in its Rules of Procedure Governing Inquiries in Aid of Legislation, in Section 19 thereof, that “the right against self-incrimination shall be allowed only when a question, which tends to elicit an answer that will incriminate, is propounded.” The senators can determine whether the right was properly invoked, by a majority vote of the committee members if there is a quorum present. The right against self-incrimination covers testimonial compulsion only and the compulsion to produce real or physical evidence using the body of the witness or accused. It applies to commutative testimony and not mechanical testimony. Commutative testimony involves the use of intelligence on the part of the accused or witness. Thus, handwriting, signatures and similar incidents, which involve the use of intelligence, are not permissible. Corollary, mechanical testimony, such as substance from the body, morphine from mouth, put on pants, physical exam, wallet, picture taking, etc. (not involving use of intelligence) is permissible (https://www.batasnatin.com).
Sadly, the right against self-incrimination (or more accurately, the right not to “be compelled to be a witness against himself”) has been rampantly abused. Case in point is the ongoing investigation on the anti-hazing law in connection with the charge of murder of Aegis Juris neophyte Horatio Castillo III, where Omerta appears to be the common strategy of accused fraternity members.
But what must not be forgotten is that before any questioning is done, the witness or accused is required to take an oath—to “tell the truth and nothing but the truth.” The consequence of not doing so would result in criminal prosecution for perjury under the Revised Penal Code.
Indeed, you can fool some people all the time, all people some of the time, but not all people all of the time!