THIRTEENTH C
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OF TH 
REPUBLIC OF THE ~ H I L ~ ~ P I ~ ~ ~  
Second Regular Session 
JUN 20 P6 :Qb 
S E N A T E  
S.B. No. 
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NOTE 
On April 27, 1992, Republic Act No. 7438, otherwise known as “AN ACT 
DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER 
CUSTODIAL INVESTIGATION AS WELL AS “HF? DUTIES OF THE ARRESTING, 
DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES 
FOR VIOLATIONS THEREOF”. was enacted into law 
RA 7438 was supposed to be the implementing law for the Rights of the Accused 
under the Bill of Rights, Article ILE, Section 12, ofthe 1987 Constitution, which reads: 
“(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. 
(2) No torture, force, violence, threat, intimidation, or any other 
means which vitiate the free will shall be used against them. Secret 
detention places, solitary, incommunicado, or other similar forms of 
detention are prohibited. 
(3) Any confession or admission obtained in violation of this or 
Section 17 hereof shall be inadmissible in evidence against him. 
(4) The law shall provide for penal and civil sanctions for 
violations of this section as well as compensation to and rehabilitation of 
victims of toIture or similar practices, and their families.” 
The said law, although laudable, failed to emphasize and enforce the State policy 
against torture and involuntary disappearances, which continues to be rampant, especially 
under the Arroyo Administration. 
In this regard, Article II, Section 11, of the Constitution provides that: 
“The State values the dignity of every human person and 
guarantees kll protection of human rights.” 
Moreover, Article III, Section 19, paragraph 2, of the Constitution provides that: 
“The employment of physical, psychological, or degrading 
punishment against any prisoner or detainee or the use of substandard or 


inadequate penal facilities under subhuman conditions shall be de& with 
by law.” 
On May 22, 2006, several openttives &om the Intelligence Service of the Armed 
Forces of the Philippines (ISAFP) and the Criminal Investigation and Detection Group 
(CIDG) of the Philippine National Police arrested, detained and investigated five (5) 
officials and members of the Union of the Masses for Democracy and Justice (UMDI) on 
purported rebellion charges. 
The facts and circumstances regarding the arrest, detention, and custodial 
investigation of the UMDJ 5 show that their constitutional rights and statutory rights 
under RA 7438 have been violated by the I S M  and CTDG. 
The UMDJ 5 were not informed of their right to remain silent and to have 
competent and independent counsel. They were not informed of the reasons for their 
arrest and detention. And for three (3) days, they were blindfolded, held incommunicado, 
and subjected to torture while being intemgated. In fact, Ruben Dionisio, one of the 
UMDJ 5, was hospitalized for broken ribs and possible damage to his internal organs. He 
claims that he was also subjected to severe ant bites, and that his private parts were 
electrocuted. The others claim that they were subjected to psychological torment. 
Unfortunately, RA 7438 has no provision on torture and incommunicado 
detention. This situation cannot he tolerated because the Philippines is a signatory to 
major international human rights treaties, such as the International Covenant on Civil and 
Political Rights and the Convention against Torture. 
Worse, the Commission on Human Rights (CHR), the constitutional body that is 
supposed to be the vanguard of human rights, appears to be helpless and toothless in the 
face of such blatant human right abuses by law enforcement agencies. The best that the 
CHR can do under the present circumstances is to conduct fact-finding investigations and 
submit its recommendation to the Department ofJustice or the Ombudsman. 
The CHR should at feast be able to conduct preliminary investigation regarding 
the violation of the custodial rights of persons arrested, detained, or under investigation 
by law enforcement agencies. 
In view of the foregoing considerations, the urgent passage of this bill is earnestly 
requested. 
Senator 


THIRTEENTH CONGRESS OF THE 
) 
REPUBLIC OF THE PHILIPPINES 
1 
Second Regular Session 
1 
S.B. No. 
2 
AN ACT 
PENALIZING THE C ~ ~ ~ I S S I O N  
OF ACTS OF TORTURE 
AND INVOLUNTARY DI§AP~EARANCE OF PERSONS ARRESTED, 
DETAINED OR UNDER CUSTODIAL INVESTIGATION, AND 
GRANTING JURISDICTION TO THE COM~IS~ION 
ON H ~ ~ A N  
RlGHTS 
TO CONDUCT PRELIMINARY INVESTI~ATION FOR VIOLATION OF 
THE CUSTODIAL RIGHTS OF THE ACCUSED, A~ENDING FOR THIS 
PURPOSE SECTIONS 2,3 AND 4 OF R.A. 7438, 
AND FOR OTHER PURPOSES 
Be it enacted by the Senate and House of Representatives of the 
Philippines in Congress assembled: 
Section 1. Section 2 0fR.A 7438 is hereby amended to read as follows: 
“Section 2. Rights of Persons Arrested, Detained or under 
CirstodiaEInvestigation; Duties of Public Qficers. - 
(a) 
Any person arrested, detained or under custodial 
investigation shall at all times be ALLOWED TO COMMUNICATE 
FREELY WITH, AND BE assisted by counsel. 
@) 
Any public officer or employee, or anyone acting under his 
order or in his place, who arrests, detains or investigates any person for the 
commission of an offense shall inform the latter, in a language known to 
and understood by him, of his rights to remain silent and to have 
competent and independent counsel, preferably of his own choice, who 
shall at all times, be allowed to confer in private with the person arrested, 
detained or under custodial investigation. If such person cannot afford the 
services of his own counsel, he must be provided with a competent and 
independent counsel by the investigating officer. SUCH PERSON SHALL 
1 


BE INFORMED OF THE CAUSE OR CAUSES OF HIS ARREST AND 
DETENTION IN THE PRESENCE OF HIS COUNSEL. 
(C) 
ANY PUBLIC OFFICER OR EMPLOYEE, OR ANYONE 
ACTING UNDER WIS ORDER OR IN HIS PLACE, WHO hRRESTS 
OR DETAINS ANY PERSON FOR THE COMMISSION OF AN 
OFFENSE SHALL IMMEDIATELY INFORM THE COMMISSION ON 
HUMAN RIGHTS OF THE FACTS AND CIRCUMSTANCES OF 
SUCH ARREST AND DETENTION. 
@) 
NO THREAT, INTIMIDATION, OR COERCION, AND 
NO ACT WHICH WILL INFLICT PHYSICAL. PAIN OR TOFUVENT, 
OR MENTAL OR MORAL PRESSURE, OR O T E R  ACTS OF 
T O R T W  ON THJ3 ARRESTED OR DETAINED PERSON, WHICH 
SHALL VITIATE HIS mE-WILL, SHALL BE EMPLOYED DURING 
THE INVESTIGATION AND INTERROGATION; OTHERWISE, THE 
EVIDENCE OBTAINED FROM SUCH ARRESTED OR DETAINED 
PERSON 
SHALL 
BE, 
R-4 
ITS 
ENTIRETY, 
ABSOLUTELY 
INADMISSIBLE AND USABLE AS EVIDENCE IN ANI' JUDICIAL, 
QUASI-JUDICIAL, 
LEGISLATIVE, 
OR 
ADMINISTRATIVE 
INVESTIGATION, INQUIRY, PROCEEDING, OR HEMUNG. 
[(c)l@) 
The custodial investigation report shall be reduced 
to writing by the investigating officer, provided that before such report is 
signed, or thumbmarked if the person arrested or detained does not know 
how to read and write, it shall be read and adequately explained to him by 
his counsel or by the assisting counsel provided by the investigating 
officer in the language or dialect known to such arrested or detained 
person, otherwise, such investigation report shall be null and void and of 
no effect whatsoever. 
[(dl1 Q 
Any extrajudicial confession made by a person 
arrested, detained or under custodial investigation shall be in wiiting and 
signed by such person in the presence of his counsel or in the latter's 
absence upon a valid waiver, and in the presence of any of the parents, 
elder brothers and sisters, his spouse, the municipal mayor, the municipal 
judge, district school supervisor, or priest or minister of the gospel as 
chosen by him; otherwise, such extrajudicial confession shall be, IN ITS 
2 


ENTIRETY, ABSOLUTELY inadmissible AND USABLE as evidence in 
any 
JUDICIAL, 
QUASI-~UDICULL, LEGISLATIVE, 
OR 
ADMINISTRATIVE INVESTIGATION, INQUIRY, proceeding, OR 
HEARING. 
[(e11 (G) 
Any waiver by a person arrested or detained under 
the provisions of Article 125 of the Revised Penal Code, or under 
custodial investigation, shall be in writing and signed by such person in 
the presence of his counsel; otherwise the waiver shall be null and void 
and of no effect. 
[OI (HI 
Any person arrested or detained or under custodial 
investigation shall be allowed TO CO-CATE 
FREELY WITH, 
AND TO BE VISITED [visits] by or HAVE conferences with any 
member of his immediate family, or any INDEPENDENT AND 
COMPETENT medical doctor or priest or religious minister chosen by 
him or by any member of his immediate family or by his counsel, or by 
any national non-governmental organization duly accredited by the 
Commission on Human Rights of by any international non-governmenfal 
organization duly accredited by the Office of the President. The person's 
"immediate family" shall include his or her spouse, fiance or fiancee, 
parent or child, brother or sister, grandparent or grandchild, uncle or aunt, 
nephew or niece, and guardian or ward. 
As used this Act, "custodial investigation" shall include the 
practice of issuing an "invitation" to a person who is investigated in 
connection with an offense he is suspected to have committed, without 
prejudice to the liability of the "inviting" officer for any violation of law." 
Section 2. Section 3 of RA. 7438 is hereby amended to read as follows: 
"Section 3. Assisting Counsel. - Assisting counsel is any lawyer, 
except those directly affected by the case, those charged with conducting 
preliminary investigation or those charged with the prosecution of crimes. 
The assisting counsel other than the government 1awye1-s shall be entitled 
to the following fees PER REQUIRED APPEARANCE UNDER THIS 
ACT: 
3 


(a) The amount of FIVE HUNDRED PESOS (P500.00) [One 
hundred fifty pesos (PlSO.OO)] if the suspected person is chargeable with 
light felonies; 
(b) The amount of SEVEN HUNDRED FlFTY PESOS (P750.00) 
[Two hundred fifty pesos (P250.00)] if the suspected person is chargeable 
with less grave of grave felonies; 
(c) The amount of ONE THOUSAND PESOS (P1,OOO.OO) [Three 
hundred fifty pesos (P35O.OO)J if the suspected person is chargeable with a 
capital offense. 
The fee for the assisting counsel shall be paid by the city or 
municipality where the custodial investigation is conducted, provided that 
if the municipality of city cannot pay such fee, the province comprising 
such municipality or city shall pay the fee: Provided, That the Municipal 
ofCity Treasurer must certify that no fbnds are available to pay the fees of 
assisting counsel before the province pays said fees. 
In the absence of any lawyer, no Gustodial investigation shall be 
conducted and the suspected person can only be detained by the 
investigating officer in accordance with the provisions of Article 125 of 
the Revised Penal Code.” 
Section 3. Section 4 0fR.A. 7438 is hereby amended to read as follows: 
“Section 4. Penal@ Clause. - (a) Any arresting public officer or 
employee, or any investigating officer, OR ANYONE ACTING UNDER 
HlS ORDER OR IN HIS PLACE who VIOLATES ANY OF THE 
AFOREMETIONED RIGHTS [fails to inform any] OF A person arrested, 
detained or under custodial investigation [of his right to remain silent and 
to have competent and independent counsel preferably of his own choice,], 
OR FAILS TO COMPLY W T H  ANY OF THE AFORMEDJTIONED 
DUTIES, OR COMMfTS ANY OF THE AFORMENTIONED 
PROHIBITED ACTS, shall BE GUILTY OF AN OFFENSE AND 
SHKL suffer [a fine of Six thousand pesos (P6,OOO.OO) or a] TI-IE 
4 


penalty of RECLUSION "PORBL [imprisonment of not Iess than 
eight (8) years but not more than ten (10) years, or both. The penalty of 
perpetual absolute disqualification shall also be imposed upon the 
investigating officer who has been previously convicted of a similar 
offense.], 
WITHOUT 
PREJUDICE 
TO 
PROSECUTION 
AND 
CONVICTION 
FOR 
OTUER 
CRlMES AMI 
OFEEN§BS 
PUNISHABLE BY THE REVISED PENAL, CODE AND OTHER 
LAWS. 
@) 
The same PENALTY [penaltiesJ UNDER THE ABOVE 
PARAGRAPH 
shall 
be 
imposed 
upon 
THE 
IMMEDIATE 
COMMANDING [aJ oficer or EQUIVALENT SENIOR OFFICIAL 
[employee or anyone acting upon orders of such investigating officer or in 
his place,j who fails to IMMEDIATELY INVESTIGATE AND CAUSE 
THE PROSECUTION, OR COOPEWTE IN THE PROSECUTION, OF 
THE PG3LIC OFRCERS AND EMPLOYEES WHO VIOLATED ANY 
PROVISION OF THIS ACT [provide a competent and independent 
counsel to a person arrested, detained or under custodial investigation for 
the commission of an offense if the latter cannot afford the services of his 
own counsel]. 
[(b) Any person who obstruct, prevents or prohibits any lawyer, 
any member of the immediate family of a person arrested, detained or 
under custodial investigation, or any medical doctor or priest or religious 
minister chosen by him or by any member of his immediate family or by 
his counsel, from visiting and conferring privately with him, or €?om 
examining and treating him, or from ministering to his spiritual needs, at 
any hour of the day or, in urgent cases, of the night shall suffer the penalty 
of imprisonment of not less than four (4) years nor more than six (6) years, 
and a fine of four thousand pesos Q?4,000.00).] 
(C) 
The provisions of the above Section notwithstanding, any 
security officer with custodial responsibility over any detainee or prisoner 
may undertake such reasonable measures as may be necessary to secure 
his safety and prevent his escape. 
@) 
THE COMMTSSION ON HUMAN RIGHTS SHALL 
HAVE PRIMARY JURISDICTION TO CONDUCT PRELIMINARY 
5 


INVESTIGATION, 
AT 
1TS 
OWN 
INITIATIVE 
OR 
WON 
COWLAINT, AND TO FILE THE NECESSARY INFORMATION 
WITH THE PROPER COURT FOR ANY VIOLATION OF THIS ACT.” 
Section 4. Repealing Cluuse. - Republic Act No. 7438 and all. other acts, laws, 
presidential decrees, executive orders, rules and regulations, or any part thereof which are 
inconsistent herewith are hereby deemed repealed or modified accordingly. 
Section 5. Eflectivi@. - This Act shall take effect fifteen (15) days after its 
publication in the Oficial Gazette or in at least fwo (2) national newspapers of general 
circulation in the Philippines, whichever comes earlier. 
6