The right to an attorney

By Atty. Eduardo T. Reyes III

 

In light of the recent spate of physical assaults on lawyers and the controversial letter swirling on social media that purports to be a request from an intelligence officer addressed to the Office of the Clerk of Court of Calbayog, Samar, for the names of the lawyers representing communist terrorist groups (CTGs), it brings to mind the ordeal of one of the greatest lawyers of all time.

Clarence Darrow who is arguably the best trial lawyer that ever lived rued in the later stages of his colorful career as described in the book entitled “Clarence Darrow” by Donald McRae, that: “This responsibility is almost too great for anyone to assume, but we lawyers can no more choose than the court can choose”.

Darrow who was also monikered as “lawyer for the damned” for representing infamous clients who committed horrifying crimes, was weighed down by the enormous responsibility of providing legal representation to his clients in pursuance of “the right to an attorney”. His passion for extending legal services to largely unpopular causes had made him a villain in the eyes of many. But to his clients, he was a hero for providing them with their right to an attorney.

What is the right to an attorney?

It all began in early 1641. Melvin I. Urofsky who is a professor of constitutional history and public policy at Virginia Commonwealth University, narrates in his book  “A March of Liberty” how the pioneers in America came to the realization that life would be hard- if not impossible- without lawyers, thus:  “English law, it should be recalled, included numerous branches, such as common and statutory law, equity, and admiralty, with an intricate system of pleadings and writs, which as Coke told James I, only lawyers could understand. But what if there were no lawyers? As a class,   lawyers bred much mistrust at home; witness the contempt in Shakespeare’s words” “The first thing we do, let’s kill all the lawyers [Henry VI, Part II]”  (p. 31) In 1648, the early settlers wanted to keep the New World free from lawyers, but as society and economy grew, so too did the need for men trained in the intricacies of the law. Merchants in litigation, landowners contesting title, faulty conveyances of property, all called for more than mere passing acquaintance with the law. As much as the settlers might have preferred simple resolution of disputes, the disputes themselves were often far from simple. X x x The colonies now needed lawyers as well before the Revolution, a self- elite profession had emerged in America that enjoyed considerable popular esteem and influence (p. 34).

Since then, the law profession had mirrored the social fabric of the times. But it was only in 1836 in England that the right to counsel for criminal cases was conceptualized. This reverberated to the United States and was crystallized when Chief Justice Earl Warren held in Miranda v. Arizona (1966), that an arrested person must be expressly and unequivocally instructed by the arresting officers of the right to remain silent and to have a lawyer present before any investigation can even begin.

This gave birth to what is now enshrined in Article III, Section 12 (1) of the 1987 Philippine Constitution, which states that any person under investigation must have a counsel preferably of his or her own choice.

Giving more teeth to this constitutional precept is statutory law which was invoked in PEOPLE v.  MAHINAY (1999). The Court cited the provisions of Republic Act 7438 otherwise known as “AN ACT DEFINING CERTAIN RIGHTS OF PERSONS ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF” in its discussion on the primordial rights of a person arrested, detained or under custodial investigation, viz:

    “Lastly, considering the heavy penalty of death and in order to ensure that the evidence against an accused were obtained through lawful means, the Court, as guardian of the rights of the people lays down the procedure, guidelines and duties which the arresting, detaining, inviting, or investigating officer or his companions must do and observe at the time of making an arrest and again at and during the time of the custodial interrogation in accordance with the Constitution, jurisprudence and Republic Act No. 7438. It is high-time to educate our law-enforcement agencies who neglect either by ignorance or indifference the so-called Miranda rights which had become insufficient and which the Court must update in the light of new legal developments:

 

1.The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; Every other warnings, information or communication must be in a language known to and understood by said person;

2.Xxx

3.He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice; Xxx”. (emphasis and underlining supplied)

These rights of the accused and other detained persons are not only enshrined in the Philippine Constitution and domestic laws, but is in keeping with, and an adherence to, the generally accepted principles of international law such as the Basic Principles on the Role of Lawyers which was adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba 27 August to 7 September 1990.

More important, the duty to ensure that the right to counsel as prescribed by the said treaty or international convention is properly observed, devolves on the government, thus:

 

“Access to lawyers and legal services

1. All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.
2. Xxx
3. Xxx
4. Governments and professional associations of lawyers shall promote programmes to inform the public about their rights and duties under the law and the important role of lawyers in protecting their fundamental freedoms. Special attention should be given to assisting the poor and other disadvantaged persons so as to enable them to assert their rights and where necessary call upon the assistance of lawyers.

 

Special safeguards in criminal justice matters

5. Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or detention or when charged with a criminal offence.
6. Xxx
7. Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention.
8. All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials. Xxx”. (emphasis and underlining supplied).

The 1987 Philippine Constitution embodies all the civil rights and liberties of the people. It is a legal document whose fullest meaning and substance will elude even an intelligent man who is not learned in the law.  Just like in 1641 when the early settlers in America had come to realize that life would be impossible without lawyers, so too will it be today, when lawyers are besieged for performing their constitutional duty to provide legal service.

Befitting is what Clarence Darrow had quipped: “You can only protect your liberties in this world by protecting the other man’s freedom . You can only be free, if I am free”.

Lawyers are not villains. They champion the people’s civil rights and liberties under the constitution.

They are heroes.

(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).