313 Galman v. Pamaran

EN BANC
[G.R. Nos. 71208-09. August 30, 1985.]
SATURNINA GALMAN AND REYNALDO GALMAN, petitioners, vs.

THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND
ASSOCIATE JUSTICES AUGUSTO AMORES AND BIENVENIDO
VERA CRUZ OF THE SANDIGANBAYAN, THE HONORABLE
BERNARDO FERNANDEZ, TANODBAYAN, GENERAL FABIAN C.
VER, MAJOR GENERAL PROSPERO OLIVAS, SGT. PABLO
MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA,
SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETO
ACUPIDO, respondents.
[G.R. Nos. 71212-13. August 30, 1985.]
PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN

(OMBUDSMAN), petitioner, vs. THE SANDIGANBAYAN, GENERAL
FABIAN C. VER, MAJOR GEN. PROSPERO OLIVAS, SGT. PABLO
MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA,
SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETO
ACUPIDO, respondents.
Lupino A. Lazaro and Ambrosio Padilla for petitioners.

Antonio P. Coronel for respondent Fabian Ver.
DECISION
CUEVAS, J : p
On August 21, 1983, a crime unparalleled in repercussions and

ramifications was committed inside the premises of the Manila International
Airport (MIA) in Pasay City. Former Senator Benigno S. Aquino, Jr., an
opposition stalwart who was returning to the country after a long sojourn
abroad, was gunned down to death. The assassination rippled shock-waves
throughout the entire country which reverberated beyond the territorial
confines of this Republic. The after-shocks stunned the nation even more as
this ramified to all aspects of Philippine political, economic and social life.
LLjur
To determine the facts and circumstances surrounding the killing and

to allow a free, unlimited and exhaustive investigation of all aspects of the
tragedy, 1 P.D. 1886 was promulgated creating an ad hoc Fact Finding Board
which later became more popularly known as the Agrava Board. 2 Pursuant
to the powers vested in it by P.D. 1886, the Board conducted public hearings
wherein various witnesses appeared and testified and/or produced
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documentary and other evidence either in obedience to a subpoena or in
response to an invitation issued by the Board. Among the witnesses who
appeared, testified and produced evidence before the Board were the herein
private respondents General Fabian C. Ver, Major General Prospero Olivas, 3
Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito
Torio, Sgt. Prospero Bona and AIC Aniceto Acupido. 4
Upon termination of the investigation, two (2) reports were submitted
to His Excellency, President Ferdinand E. Marcos. One, by its Chairman, the
Hon. Justice Corazon Juliano Agrava; and another one, jointly authored by the
other members of the Board — namely: Hon. Luciano Salazar, Hon. Amado
Dizon, Hon. Dante Santos and Hon. Ernesto Herrera. The reports were
thereafter referred and turned over to the TANODBAYAN for appropriate
action. After conducting the necessary preliminary investigation, the
TANODBAYAN 5 filed with the SANDIGANBAYAN two (2) Informations for
MURDER — one for the killing of Sen. Benigno S. Aquino which was docketed
as Criminal Case No. 10010 and another, Criminal Case No, 10011, for the
killing of Rolando Galman, who was found dead on the airport tarmac not far
from the prostrate body of Sen. Aquino on that same fateful day. In both
criminal cases, private respondents were charged as accessories, along with
several principals, and one accomplice. Cdpr
Upon arraignment, all the accused, including the herein private

respondents pleaded NOT GUILTY.
In the course of the joint trial of the two (2) aforementioned cases, the
prosecution represented by the Office of the petitioner TANODBAYAN,
marked and thereafter offered as part of its evidence, the individual
testimonies of private respondents before the Agrava Board 6 Private
respondents, through their respective counsel objected to the admission of
said exhibits. Private respondent Gen. Ver filed a formal "Motion to Exclude
Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence
against him in the above-cases" 7 contending that its admission will be in
derogation of his constitutional right against self-incrimination and violative
of the immunity granted by P. Dentitled. 1886. He prayed that his aforesaid
testimony be rejected as evidence for the prosecution. Major Gen. Olivas and
the rest of the other private respondents likewise filed separate motions to
exclude their respective individual testimonies invoking the same ground. 8
Petitioner TANODBAYAN opposed said motions contending that the immunity
relied upon by the private respondents in support of their motions to exclude
their respective testimonies, was not available to them because of their
failure to invoke their right against self-incrimination before the ad hoc Fact
Finding Board. 9 Respondent SANDIGANBAYAN ordered the TANODBAYAN
and the private respondents to submit their respective memorandum on the
issue after which said motions will be considered submitted for resolution. 10
On May 30, 1985, petitioner having no further witnesses to present and
having been required to make its offer of evidence in writing, respondent
SANDIGANBAYAN, without the pending motions for exclusion being resolved,
issued a Resolution directing that by agreement of the parties, the pending
motions for exclusion and the opposition thereto, together with the
memorandum in support thereof, as well as the legal issues and arguments,
raised therein are to be considered jointly in the Court's Resolution on the
prosecution's formal offer of exhibits and other documentary evidences. 11
On June 3, 1985, the prosecution made a written "Formal Offer of Evidence"
which includes, among others, the testimonies of private respondents and
other evidences produced by them before the Board, all of which have been
previously marked in the course of the trial. 12
All the private respondents objected to the prosecution's formal offer of
evidence on the same ground relied upon by them in their respective motion
for exclusion.
On June 13,1985, respondent SANDIGANBAYAN issued a Resolution,
now assailed in these two (2) petitions, admitting all the evidences offered
by the prosecution except the testimonies and/or other evidence produced
by the private respondents in view of the immunity granted by P.D. 1886. 13
Petitioners' motion for the reconsideration of the said Resolution
having been DENIED, they now come before Us by way of Certiorari 14
praying for the amendment and/or setting aside of the challenged Resolution
on the ground that it was issued without jurisdiction and or with grave abuse
of discretion amounting to lack of jurisdiction. Private prosecutor below, as
counsel for the mother of deceased Rolando Galman, also filed a separate
petition for Certiorari 15 on the same ground. Having arisen from the same
factual beginnings and raising practically identical issues, the two (2)
petitioners were consolidated and will therefore be jointly dealt with and
resolved in this Decision. cdrep
The crux of the instant controversy is the admissibility in evidence of

the testimonies given by the eight (8) private respondents who did not
invoke their rights against self-incrimination before the Agrava Board.
It is the submission of the prosecution, now represented by the
petitioner TANODBAYAN, that said testimonies are admissible against the
private respondents, respectively, because of the latter's failure to invoke
before the Agrava Board the immunity granted by P.D. 1886. Since private
respondents did not invoke said privilege, the immunity did not attach.
Petitioners went further by contending that such failure to claim said
constitutional privilege amounts to a waiver thereof. 16 The private
respondents, on the other hand, claim that notwithstanding failure to set up
the privilege against self-incrimination before the Agrava Board, said
evidences cannot be used against them as mandated by Section 5 of the
said P.D. 1886. They contend that without the immunity provided for by the
second clause of Section 5, P.D. 1886, the legal compulsion imposed by the
first clause of the same Section would suffer from constitutional infirmity for
being violative of the witness' right against self-incrimination. 17 Thus, the
protagonists are locked in horns on the effect and legal significance of failure
to set up the privilege against self-incrimination.
The question presented before Us is a novel one. Heretofore, this Court
has not been previously called upon to rule on issues involving immunity
statutes. The relative novelty of the question coupled with the extraordinary
circumstance that had precipitated the same did nothing to case the burden
of laying down the criteria upon which this Court will henceforth build future
jurisprudence on a heretofore unexplored area of judicial inquiry. In carrying
out this monumental task, however, We shall be guided, as always, by the
constitution and existing laws.
The Agrava Board, 18 came into existence in response to a popular
public clamor that an impartial and independent body, instead of any
ordinary police agency, be charged with the task of conducting the
investigation. The then early distortions and exaggerations, both in foreign
and local media, relative to the probable motive behind the assassination
and the person or persons responsible for or involved in the assassination
hastened its creation and heavily contributed to its early formation. 19
Although referred to and designated as a mere Fact Finding Board, the
Board is in truth and in fact, and to all legal intents and purposes, an entity
charged, not only with the function of determining the facts and
circumstances surrounding the killing, but more importantly, the
determination of the person or persons criminally responsible therefor so
that they may be brought before the bar of justice. For indeed, what good
will it be to the entire nation and the more than 50 million Filipinos to know
the facts and circumstances of the killing if the culprit or culprits will
nevertheless not be dealt with criminally? This purpose is implicit from
Section 12 of the said Presidential Decree, the pertinent portion of which
provides —
"SECTION 12. The findings of the Board shall be made
public. Should the findings warrant the prosecution of any person the
Board may initiate the filing of proper complaint with the appropriate
government agency. . . ..(Emphasis supplied).
The investigation therefor is also geared, as any other similar
investigation of its sort, to the ascertainment and/or determination of the
culprit or culprits, their consequent prosecution and ultimately, their
conviction. And as safeguard, the P.D. guarantees "any person called to
testify before the Board the right to counsel at any stage of the
proceedings." 20 Considering the foregoing environmental settings, it cannot
be denied that in the course of receiving evidence, persons summoned to
testify will include not merely plain witnesses but also those suspected as
authors and co-participants in the tragic killing. And when suspects are
summoned and called to testify and/or produce evidence, the situation is one
where the person testifying or producing evidence is undergoing
investigation for the commission of an offense and not merely in order to
shed light on the facts and surrounding circumstances of the assassination,
but more importantly, to determine the character and extent of his
participation therein. cdrep
Among this class of witnesses were the herein private respondents,

suspects in the said assassination, all of whom except Generals Ver and
Olivas, were detained (under technical arrest) at the time they were
summoned and gave their testimonies before the Agrava Board. This
notwithstanding, Presidential Decree No. 1886 denied them the right to
remain silent. They were compelled to testify or be witnesses against
themselves. Section 5 of P.D. 1886 leave them no choice. They have to take
the witness stand, testify or produce evidence, under pain of contempt if
they failed or refused to do so, 21 The jeopardy of being placed behind prison
bars even before conviction dangled before their very eyes. Similarly, they
cannot invoke the right not to be a witness against themselves, both of
which are sacrosantly enshrined and protected by our fundamental law. 21-A
Both these constitutional rights to remain silent and not to be compelled to
be a witness against himself) were right away totally foreclosed by P.D.
1886. And yet when they so testified and produced evidence as ordered,
they were not immune from prosecution by reason of the testimony given by
them. LLpr
Of course, it may be argued — is not the right to remain silent available

only to a person undergoing custodial interrogation? We find no categorical
statement in the constitutional provision on the matter which reads:
". . . Any person under investigation for the commission of an
offense shall have the right to remain and to counsel, and to be
informed of such right. ". . . 22 (Emphasis supplied).
Since the effectivity of the 1973 Constitution, we now have a mass of
jurisprudence 23 on this specific portion of the subject provision. In all these
cases, it has been categorically declared that a person detained for the
commission of an offense undergoing investigation has a right to be
informed of his right to remain silent, to counsel, and to an admonition that
any and all statements to be given by him may be used against him.
Significantly however, there has been no pronouncement in any of these
cases nor in any other — that a person similarly undergoing investigation for
the commission of an offense, if not detained, is not entitled to the
constitutional admonition mandated by said Section 20, Art. IV of the Bill of
Rights. cdrep
The fact that the framers of our Constitution did not choose to use the
term "custodial" by having it inserted between the words "under" and
investigation", as in fact the sentence opens with the phrase "any person"
goes to prove that they did not adopt in toto the entire fabric of the Miranda
doctrine. 24 Neither are we impressed by petitioners' contention that the use
of the word "confession" in the last sentence of said Section 20, Article 4
connotes the idea that it applies only to police investigation, for although the
word "confession" is used, the protection covers not only "confessions" but
also "admissions" made in violation of this section. They are inadmissible
against the source of the confession or admission and against third person.
25
It is true a person in custody undergoing investigation labors under a

more formidable ordeal and graver trying conditions than one who is at
liberty while being investigated. But the common denominator in both which
is sought to be avoided — is the evil of extorting from the very mouth of the
person undergoing interrogation for the commission of an offense, the very
evidence with which to prosecute and thereafter convict him. This is the
lamentable situation we have at hand.
All the private respondents, except Generals Ver and Olivas, are
members of the military contingent that escorted Sen. Aquino while
disembarking from the plane that brought him home to Manila on that
fateful day. Being at the scene of the crime as such, they were among the
first line of suspects in the subject assassination. General Ver on the other
hand, being the highest military authority of his co-petitioners labored under
the same suspicion and so with General Olivas, the first designated
investigator of the tragedy, but whom others suspected, felt and believed to
have bungled the case. The papers, especially the foreign media, and rumors
from ugly-wagging tongues, all point to them as having, in one way or
another participated or have something to do, in the alleged conspiracy that
brought about the assassination. Could there still be any doubt then that
their being asked to testify, was to determine whether they were really
conspirators and if so, the extent of their participation in the said
conspiracy? It is too taxing upon one's credulity to believe that private
respondents' being called to the witness stand was merely to elicit from
them facts and circumstances surrounding the tragedy, which was already
so abundantly supplied by other ordinary witnesses who had testified earlier.
In fact, the records show that Generals Ver and Olivas were among the last
witnesses called by the Agrava Board. The subject matter dealt with and the
line of questioning as shown by the transcript of their testimonies before the
Agrava Board, indubitably evinced purposes other than merely eliciting and
determining the so-called surrounding facts and circumstances of the
assassination. In the light of the examination reflected by the record, it is not
far-fetched to conclude that they were called to the stand to determine their
probable involvement in the crime being investigated. Yet they have not
been informed or at the very least even warned while so testifying, even at
that particular stage of their testimonies, of their right to remain silent and
that any statement given by them may be used against them. If the
investigation was conducted, say by the PC, NBI or by other police agency,
all the herein private respondents could not have been compelled to give
any statement whether incriminatory or exculpatory. Not only that. They are
also entitled to be admonished of their constitutional right to remain silent,
to counsel, and be informed that any and all statements given by them may
be used against them. Did they lose their aforesaid constitutional rights
simply because the investigation was by the Agrava Board and not by any
police investigator, officer or agency? True, they continued testifying. May
that be construed as a waiver of their rights to remain silent and not to be
compelled to be a witness against themselves? The answer is yes, if they
have the option to do so. But in the light of the first portion of Section 5 of
P.D. 1886 and the awesome contempt power of the Board to punish any
refusal to testify or produce evidence, We are not persuaded that when they
testified, they voluntarily waived their constitutional rights not to be
compelled to be a witness against themselves much less their right to
remain silent. llcd
"Compulsion as it is understood here does not necessarily

connote the use of violence; it may be the product of unintentional
statements Pressure which operates to overbear his will, disable him
from making a free and rational choice, or impair his capacity for
rational judgment would in our opinion be sufficient. So is moral
coercion tending to force testimony from the unwilling lips of the
defendant.'" 26
Similarly, in the case of Louis J. Lefkowitz v. Russel Turley 27 citing
Garrity vs. New Jersey 28 where certain police officers summoned to an
inquiry being conducted by the Attorney General involving the fixing of
traffic tickets were asked questions following a warning that if they did not
answer they would be removed from office and that anything they said might
be used against them in any criminal proceeding, and the questions were
answered, the answers given cannot over their objection be later used in
their prosecutions for conspiracy. The United States Supreme Court went
further in holding that:
"the protection of the individuals under the Fourteenth
Amendment against coerced statements prohibits use in subsequent
proceedings of statements obtained under threat or removal from
office, and that it extends to all, whether they are policemen or other
members of the body politic. 385 US at 500,17 L Ed. 562. The Court
also held that in the context of threats of removal from office the act
of responding to interrogation was not voluntary and was not an
effective waiver of the privilege against self-incrimination."
To buttress their precarious stand and breathe life into a seemingly
hopeless cause, petitioners and amicus curiae (Ex-Senator Ambrosio Padilla)
assert that the "right not to be compelled to be a witness against himself"
applies only in favor of an accused in a criminal case. Hence, it may not be
invoked by any of the herein private respondents before the Agrava Board.
The Cabal vs. Kapunan doctrine militates very heavily against this theory.
Said case is not a criminal case as its title very clearly indicates. It is not
People vs. Cabal nor a prosecution for a criminal offense. And yet, when
Cabal refused to take the stand, to be sworn and to testify upon being called
as a witness for complainant Col. Maristela in a forfeiture of illegally
acquired assets, this Court sustained Cabal's plea that for him to be
compelled to testify will be in violation of his right against self-incrimination.
We did not therein state that since he is not an accused and the case is not a
criminal case, Cabal cannot refuse to take the witness stand and testify, and
that he can invoke his right against self-incrimination only when a question
which tends to elicit an answer that will incriminate him is profounded to
him. Clearly then, it is not the character of the suit involved but the nature of
the proceedings that controls. The privilege has consistently been held to
extend to all proceedings sanctioned by law and to all cases in which
punishment is sought to be visited upon a witness, whether a party or not. 29
If in a mere forfeiture case where only property rights were involved, "the
right not to be compelled to be a witness against himself" is secured in favor
of the defendant, then with more reason it cannot be denied to a person
facing investigation before a Fact Finding Board where his life and liberty, by
reason of the statements to be given by him, hang on the balance. Further
enlightenment on the subject can be found in the historical background of
this constitutional provision against self-incrimination. The privilege against
self-incrimination is guaranteed in the Fifth Amendment to the Federal
Constitution. In the Philippines, the same principle obtains as a direct result
of American influence. At first, the provision in our organic laws were similar
to the Constitution of the United States and was as follows:
"That no person shall be . . . compelled in a criminal case to be

a witness against himself." 30
As now worded, Section 20 of Article IV reads:
"No person shall be compelled to be a witness against himself."
The deletion of the phrase "in a criminal case" connotes no other
import except to make said provision also applicable to cases other than
criminal. Decidedly then, the right "not to be compelled to testify against
himself" applies to the herein private respondents notwithstanding that the
proceedings before the Agrava Board is not, in its strictest sense, a criminal
case. LLpr
No doubt, the private respondents were not merely denied the afore-
discussed sacred constitutional rights, but also the right to "due process"
which is fundamental fairness. 31 Quoting the highly-respected eminent
constitutionalist that once graced this Court, the former Chief Justice Enrique
M. Fernando, due process —
". . . is responsiveness to the supremacy of reason, obedience
to the dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided. To satisfy the due process requirement, official
action, to paraphrase Cardozo, must not outrun the bounds of reason
and result m sheer oppression. Due process is thus hostile to any
official action marred by lack of reasonableness. Correctly, it has
been identified as freedom from arbitrariness. It is the embodiment of
the sporting idea of fair play (Frankfurter, Mr. Justice Holmes and the
Supreme Court, 1983, pp. 32-33). It exacts fealty 'to those strivings
for justice' and judges the act of officialdom of whatever branch in the
light of reason drawn from considerations of fairness that reflect
(democratic) traditions of legal and political thought.' (Frankfurter,
Hannah v. Larche, 1960, 363 US 20, at 487). It is not a narrow or '
technical conception with fixed content unrelated to time, place and
circumstances.' (Cafeteria Workers v. McEhroy, 1961, 367 US 1230)
Decisions based on such a clause requiring a 'close and perceptive
inquiry into fundamental principles of our society. (Bartkus vs.
Ilhmois, 1959, 359 US 121). Questions of due process are not to be
treated narrowly or pedantically in slavery to form or phrases.
(Pearson v. McGraw, 1939, 308 US 313).
Our review of the pleadings and their annexes, together with the oral
arguments, manifestations and admissions of both counsel, failed to reveal
adherence to and compliance with due process. The manner in which the
testimonies were taken from private respondents fall short of the
constitutional standards both under the DUE PROCESS CLAUSE and under
the EXCLUSIONARY RULE in Section 20, Article IV. In the face of such grave
constitutional infirmities, the individual testimonies of private respondents
cannot be admitted against them in any criminal proceeding. This is true
regardless of absence of claim of constitutional privilege or of the presence
of a grant of immunity by law. Nevertheless, We shall rule on the effect of
such absence of claim to the availability to private respondents of the
immunity provided for in Section 5, P.D. 1886 which issue was squarely
raised and extensively discussed in the pleadings and oral arguments of the
parties. LLphil
Immunity statutes may be generally classified into two: one, which

grants "use immunity"; and the other, which grants what is known as
"transactional immunity." The distinction between the two is as follows: "Use
immunity" prohibits use of witness' compelled testimony and its fruits in any
manner in connection with the criminal prosecution of the witness. On the
other hand, "transactional immunity" grants immunity to the witness from
prosecution for an offense to which his compelled testimony relates. 32
Examining Presidential Decree 1886, more specifically Section 5 thereof,
which reads:
"SEC. 5. No person shall be excused from attending and
testifying or from producing books, records, correspondence,
documents, or other evidence in obedience to a subpoena issued by
the Board on the ground that his testimony or the evidence required
of him may tend to incriminate him or subject him to penalty or
forfeiture; but his testimony or any evidence produced by him shall
not be used against him in connection with any transaction, matter or
thing concerning which he is compelled, after having invoked his
privilege against self-incrimination, to testify or produce evidence,
except that such individual so testifying shall not be exempt from
prosecution and punishment for perjury committed in so testifying,
nor shall he be exempt from demotion or removal from office."
(Emphasis supplied).
it is beyond dispute that said law belongs to the first type of immunity
statutes. It grants merely immunity from use of any statement given before
the Board, but not immunity from prosecution by reason or on the basis
thereof. Merely testifying and/or producing evidence do not render the
witness immuned from prosecution notwithstanding his invocation of the
right against self-incrimination. He is merely saved from the use against him
of such statement and nothing more. Stated otherwise . . . . he still runs the
risk of being prosecuted even if he sets up his right against self-
incrimination. The dictates of fair play, which is the hallmark of due process,
demands that private respondents should have been informed of their rights
to remain silent and warned that any and all statements to be given by them
may be used against them. This, they were denied, under the pretense that
they are not entitled to it and that the Board has no obligation to so inform
them.
It is for this reason that we cannot subscribe to the view adopted and
urged upon Us by the petitioners — that the right against self-incrimination
— must be invoked before the Board in order to prevent use of any given
statement against the testifying witness in a subsequent criminal
prosecution. A literal interpretation fashioned upon Us is repugnant to Article
IV, Section 20 of the Constitution, which is the first test of admissibility. It
reads:
"No person shall be compelled to be a witness against himself.
Any person under investigation for the commission of an offense shall
have the right to remain silent and to counsel, and to be informed of
such right. No force, violence, threat, intimidation, or any other
means which vitiates the free will shall be used against him. Any
confession obtained in violation of this section shall be inadmissible in
evidence." (Emphasis supplied).
The aforequoted provision renders inadmissible any confession
obtained in violation thereof. As herein earlier discussed, this exclusionary
rule applies not only to confessions but also to admissions, 33 whether made
by a witness in any proceeding or by an accused in a criminal proceeding or
any person under investigation for the commission of an offense.
Any interpretation of a statute which will give it a meaning in conflict
with the Constitution must be avoided. So much so that if two or more
constructions or interpretations could possibly be resorted to, then that one
which will avoid unconstitutionality must be adopted even though it may be
necessary for this purpose to disregard the more usual and apparent import
of the language used. 34 To save the statute from a declaration of
unconstitutionality it must be given a reasonable construction that will bring
it within the fundamental law. 35 Apparent conflict between two clauses
should be harmonized. 36
But a literal application of a requirement of a claim of the privilege
against self-incrimination as a condition sine qua non to the grant of
immunity presupposes that from a layman's point of view, he has the option
to refuse to answer questions and therefore, to make such claim. P.D. 1886,
however, forecloses such option of refusal by imposing sanctions upon its
exercise, thus:
"SEC. 4. The Board may hold any person in direct or indirect
contempt, and impose appropriate penalties therefor.
A person guilty of . . . including . . . refusal to be sworn or to
answer as a witness or to subscribe to an affidavit or deposition when
lawfully required to do so may be summarily adjudged in direct
contempt by the Board. . . ."
Such threat of punishment for making a claim of the privilege leaves
the witness no choice but to answer and thereby forfeit the immunity
purportedly granted by Sec. 5. The absurdity of such application is apparent
— Sec. 5 requires a claim which it, however, forecloses under threat of
contempt proceedings against anyone who makes such claim. But the strong
testimonial compulsion imposed by Section 5 of P.D. 1886 viewed in the
light of the sanctions provided in Section 4, infringes upon the witness' right
against self-incrimination. As a rule, such infringement of the constitutional
right renders inoperative the testimonial compulsion, meaning, the witness
cannot be compelled to answer UNLESS a co-extensive protection in the
form of IMMUNITY is offered. 37 Hence, under the oppressive compulsion of
P.D. 1886, immunity must in fact be offered to the witness before he can be
required to answer, so as to safeguard his sacred constitutional right. But in
this case, the compulsion has already produced its desired results — the
private respondents had all testified without offer of immunity. Their
constitutional rights are therefore, in jeopardy. The only way to cure the law
of its unconstitutional effects is to construe it in the manner as if IMMUNITY
had in fact been offered. We hold, therefore, that in view of the potent
sanctions imposed on the refusal to testify or to answer questions under Sec.
4 of P.D. 1886, the testimonies compelled thereby are deemed immunized
under Section 5 of the same law. The applicability of the immunity granted
by P.D. 1886 cannot be made to depend on a claim of the privilege against
self-incrimination which the same law practically strips away from the
witness.
With the stand we take on the issue before Us, and considering the
temper of the times, we run the risk of being consigned to unpopularity.
Conscious as we are of, but undaunted by, the frightening consequences
that hover before Us, we have Strictly adhered to the Constitution in
upholding the rule of law finding solace in the view very aptly articulated by
that well-known civil libertarian and admired defender of human rights of
this Court, Mr. Justice Claudio Teehankee, in the case of People vs.
Manalang, 38 and we quote:
"I am completely conscious of the need for a balancing of the
interests of society with the rights and freedoms of the individuals. I
have advocated the balancing-of-interests rule in all situations which
call for an appraisal of the interplay of conflicting interests of
consequential dimensions. But I reject any proposition that would
blindly uphold the interests of society at the sacrifice of the dignity of
any human being." (Emphasis supplied).
Lest we be misunderstood, let it be known that we are not by this
disposition passing upon the guilt or innocence of the herein private
respondents — an issue which is before the Sandiganbayan. We are merely
resolving a question of law and the pronouncement herein made applies to
all similarly situated, irrespective of one's rank and status in society.
IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant
petitions without merit, same are DISMISSED. No pronouncement as to costs.
SO ORDERED.
Aquino, J., concur.
Abad Santos, J., is on leave.
Makasiar, J., I hereby certify that Mr. Justice Ramon C. Aquino, before
he left for abroad, voted to dismiss the petition for lack of merit.
Separate Opinions
MAKASIAR, C.J., concurring:
To admit private respondents' testimonies and evidence before the
Fact-Finding Board (FFB) against them in the criminal prosecution pending
before the Sandiganbayan, would violate their constitutional or human rights
— the right to procedural due process, the right to remain silent, and the
right against self-incrimination.
That their testimonies and other evidence they submitted before the
FFB in these criminal cases are incriminatory, is confirmed by the very fact
that such testimonies and evidence were the very bases of the majority
report of the FFB recommending the prosecution of private respondents as
accessories.
It should be stressed that the basic purposes of the right against self-
incrimination are (1) humanity or humanitarian reasons — to prevent a
witness or accused from being coerced, whether physically, morally, and/or
psychologically, into incriminating himself, and (2 to protect the witness or
accused from committing perjury, because the first law of nature is self-
preservation.
The utilization in the prosecution against them before the
Sandiganbayan of the testimonies and other evidence of private respondents
before the FFB collides with Section 1, Section 17 and Section 20 of the Bill
of Rights of the 1973 Constitution:
"Section 1. No person shall be deprived of life, liberty or
property without due process of law, nor shall any person be denied
the equal protection of the laws.
xxx xxx xxx
"Section 17. No person shall be held to answer for a
criminal offense without due process of law.
xxx xxx xxx
"Section 20. No person shall be compelled to be a witness
against himself . Any person under investigation for the commission
of an offense shall have the right to remain silent and to counsel, and
to be informed of such right. No force, violence, threat, intimidation,
or any other means which vitiates the free will shall be used against
him. Any confession obtained in violation of this Section shall be
inadmissible in evidence."
The Bill of Rights constitutes the reservation of the sovereign people
against, as well as the limitation on, the delegated powers of government.
These rights thus enshrined need no express assertion. On the contrary, the
police and prosecution officers of the country should respect these
constitutional liberties as directed in the recent decision in the Hildawa and
Valmonte cases (G.R. Nos. 67766 and 70881, August 14, 1985). The
established jurisprudence is that waiver by the citizen of his constitutional
rights should be clear, categorical, knowing, and intelligent (Johnson vs.
Zerbst, 304 US 458, 464, cited in Abriol vs. Homeres, 84 Phil. 525 [1949] and
in Chavez vs. CA, 24 SCRA 663, 682-683).
The use of testimonies and other evidence of private respondents
before the FFB against them in the criminal cases subsequently filed before
the Sandiganbayan would trench upon the constitutional guarantees that "no
person shall be deprived of life, liberty, or property without due process of
law . . .", that "no person shall be held to answer for a criminal offense
without due process of law" and that (Section 17, Article IV, 1973
Constitution), that "no person shall be compelled to be a witness against
himself. . . ." and that " a person has the right to remain silent . . ." (Section
20, Article IV, 1973 Constitution).
There can be no implied waiver of a citizen's right against self-
incrimination or of his right to remain silent.
Any such renunciation cannot be predicated on such a slender or
tenuous reed as a dubious implication. Otherwise, it would be easier to lose
the human rights guaranteed by the Bill of Rights than to protect or preserve
them; it would be easier to enslave the citizen than for him to remain free.
Such a result was never intended by the Founding Fathers.
The first sentence of Section 20 of the Bill of Rights stating that "no
person shall be compelled to be a witness against himself," applies to both
the ordinary witness and the suspect under custodial investigation.
In support of the rule that there can be no implied waiver of the right
against self-incrimination and all other constitutional rights by the witness or
by the accused, is the fact that the right against double jeopardy can only be
renounced by the accused if the criminal case against him is dismissed or
otherwise terminated with his express consent. Without such express
consent to the dismissal or termination of the case, the accused can always
invoke his constitutional right against double jeopardy.
If Section 5 of P.D. 1886 were interpreted otherwise, said section would
become a booby trap for the unsuspecting or unwary witness. A witness
summoned either by subpoena or by invitation to testify before the FFB
under Section 5, cannot refuse, under pain of contempt, to testify or produce
evidence required of him on the ground that his testimony or evidence may
tend to incriminate or subject him to a penalty or forfeiture; because the
same Section 5 prohibits the use of such testimony or evidence which may
tend to incriminate him in any criminal prosecution that may be filed against
him. The law or decree cannot diminish the scope and extent of the
guarantee against self-incrimination or the right to remain silent or the right
against being held to answer for a criminal offense without due process of
law, or against deprivation of his life, liberty or property without due process
of law. cdrep
As a matter of fact, numerous decisions culled by American

jurisprudence are partial to the rule that immunity statutes which compel a
citizen to testify, should provide an immunity from prosecution that is as co-
extensive, as total and as absolute as the guarantees themselves (Jones Law
on Evidence, Chapter XVIII, Section 863, pp. 1621-1623; Kastigar vs. US
1972, 406 US 441).
Even if the witness testified pursuant to an invitation, the invitation
does not remove the veiled threat of compulsion, because as stated in the
Chavez case, supra:
"Compulsion as it is understood here does not necessarily
connote the use of violence; it may be the product of unintentional
statements. Pressures which operate to overbear his will, disable him
from making a free and rational choice, or impair his capacity for
rational judgment would in our opinion be sufficient. So is moral
coercion 'tending to force testimony from the unwilling lips of the
defendant '(Chavez vs. Court of Appeals, 24 SCRA 663, 679).
The summons issued to private respondents has been suphemistically
called as an invitation, instead of a subpoena or subpoena duces tecum, as
a sign of respect for the important and high positions occupied by private
respondents. But the effect of such an invitation thus worded is the same as
a subpoena or subpoena duces tecum. Precisely, the phraseology of Section
5 of P.D. 1886 entices the unsuspecting private respondents to testify before
the FFB, by dangling in the same Section 5 the assurance that their
testimony or the evidence given by them will not be used against them in a
criminal prosecution that may be instituted against them.
At the very least, their consent to testify was under such
misapprehension. Hence, there can be no clear, categorical, knowing and
intelligent waiver of the right to remain silent, against self-incrimination,
against being held to answer for a criminal offense without due process of
law, and against being deprived of life, liberty or property without due
process of law — under such misapprehension.
In any event, Section 5 of P.D. 1886 creates a doubt, which doubt is
accentuated by the difference of opinion thereon among the counsels in
these cases and among members of this Court. And it is basic in criminal law
that doubts should be resolved liberally in favor of the accused and strictly
against the government.
The procedural due process both under Sections 1 and 17 of the Bill of
Rights, Article IV of the 1973 Constitution, simply means, in the language of
Justice Frankfurter, the sporting idea of fair play. The FFB and its counsel did
not inform the private respondents herein of their right to remain silent and
their right against self-incrimination, and that their testimonies may be
utilized against them in a court of law, before they testified. This is not fair to
them, and hence, they were denied procedural due process.
It should be stressed that the FFB was merely a fact-finding agency for
the purpose of gathering all the possible facts that may lead to the identity
of the culprit. Such testimonies may provide leads for the FFB, its counsels
and agents to follow up. The FFB and its counsels cannot rely solely on such
testimonies to be used against the private respondents in these criminal
cases. It should be recalled that the FFB had ample funds for the purpose of
accomplishing its object. As a matter of fact, it refunded several million
pesos to the government after it concluded its investigation. The Board and
its counsel could have utilized the said amount to appoint additional agents
to look for witnesses to the assassination. In this respect, the FFB counsel
could be faulted in not utilizing the funds appropriated for them to ferret out
all evidence that Will identify the culprit or culprits. The failure of the FFB's
counsel to use said funds reflects on the initiative and resourcefulness of its
counsel. He could prosecute private respondents on evidence other than
their testimony and the evidence they gave before the FFB.
As heretofore stated, the private respondents were Compelled to
testify before the FFB whether by subpoena or by invitation which has the
effect of a subpoena as provided for in Section 5 of P.D. 1886; because
private respondents then believed, by reading the entire Section 6, that the
testimony they gave before the FFB could not be used against them in the
criminal cases subsequently filed before the Sandiganbayan. Because the
Board was merely a fact-finding board and that it was not conducting a
criminal prosecution, the private respondents were under the impression that
there was no need for them to invoke their rights to remain silent, against
self-incrimination and against being held for a criminal offense without due
process of law.
It should be recalled that the counsel of the FFB after submitting the
majority report, refused to cooperate with the Tanodbayan in these cases
with the pompous declaration that, after submitting their majority report, he
automatically became functus oficio. Was his refusal to cooperate with, and
assist, the Tanodbayan in the prosecution of these cases, born of the
realization that the FFB majority report is as weak as it was precipitate? And
when the Tanodbayan has now his back to the wall, as it were, by the ruling
of the respondent Sandiganbayan excluding the testimonies and other
evidence of private respondents herein on the ground that the use of their
testimonies and other evidence will incriminate them, the FFB counsel,
without being requested by the Tanodbayan, now files a memorandum in
support of the position of the Tanodbayan. What is the reason for this turn-
about — to save his report from the fire which they started with such
enthusiasm?
As above emphasized, it is the duty of the police and the prosecuting
authorities to respect their rights under the Constitution as we stated in the
recent Hildawa and Valmonte cases, supra.
The grant of immunity under Section 5 of P.D. 1886 would be
meaningless if we follow the posture of petitioners herein. Such a posture
would be correct if the phrase "after having invoked his privilege against
self-incrimination" were transposed as the opening clause of Section 5 to
read as follows "After having invoked his privilege against self-incrimination
no person shall be excused from attending and testifying . . . etc."
Said Section 5 has two clauses and contemplates two proceedings. The
first clause from "No person shall be excused . . . etc." up to "penalty or
forfeiture . . ." refers to the proceeding before the FFB. The second clause
after the semi-colon following the word "forfeiture which begins with ".. but
his testimony or any evidence produced by him shall not be used against
him in connection with any transaction, matter, or thing concerning which he
is compelled, after having invoked his privilege against self-incrimination to
testify . . ." refers to a subsequent criminal proceeding against him which
second clause guarantees him against the use of his testimony in such
criminal prosecution, but does not immunize him from such prosecution
based on other evidence.
The private respondents herein, if the contention of the prosecution
were sustained, would be fried in their own fat.
Consequently, the petition should be dismissed.
Concepcion Jr., Escolin De la Fuente, Alampay, Patajo and Gutierrez, Jr,
JJ., concur.
CONCEPCION, JR., J., concurring:
1. Let me preface my opinion by quoting from my dissent in
Pimentel. 1
"1. We are committed to the mandate of the Rule of Law.

We resolve controversies before Us without considering what is or
what might be the popular decision. No. We never do. We only
consider the facts and the law. Always the facts and the law."
2. The issue before Us is not — I repeat, not — the guilt or
innocence of Gen. Fabian C. Ver, Major Gen. Prospero Olivas, and others for
their alleged participation in the assassination of former Senator Benigno S.
Aquino, Jr.
3. The issue is: Are the testimonies given by them before the
Agrava Board admissible in evidence against them in their trial before the
Sandiganbayan?
4. The issue therefore is purely a question of law. It involves the
interpretation of Sec. 5, P.D. No. 1886 and calls for the application of the
Rule of Law.
5. Sec. 5, P.D. No. 1886 reads:
"No person shall be excused from attending and testifying or
from producing books, records, correspondence, documents, or other
evidence in obedience to a subpoena issued by the Board on the
ground that his testimony or the evidence required of him may tend
to incriminate him or subject him to penalty or forfeiture; but his
testimony or any evidence produced by him shall not be used against
him in connection with any transaction, matter or thing concerning
which he is compelled, after having invoked his privilege against self-
incrimination, to testify or produce evidence, except that such
individual so testifying shall not be exempt from prosecution and
punishment for perjury committed in so testifying, nor shall he be
exempt from demotion or removal from office."
6. This section means that any person who is invited or summoned
to appear must obey and testify as to what he knows. Even if the testimony
tends to incriminate him he must testify. Even if he claims his constitutional
right against self-incrimination, he still must testify. However, his testimony
cannot be used against him in any subsequent proceeding, provided that at
the time it is being presented, he invokes his privilege against self-
incrimination. His testimony, no matter what it may be, cannot in any way
cause him harm.
The only exception is if the testimony he gave is false, in which case he
can be prosecuted and punished for perjury. He may also be demoted or
removed from office.
7. The testimonies given by private respondents before the Agrava
Board are therefore not admissible against them in their trial before the
Sandiganbayan, having invoked their privilege against self-incrimination.
Makasiar, C.J., Escolin Alampay and Patajo, JJ., concur.
PLANA, J., concurring:
I would like to underscore some considerations underlying my
concurrence:
1. According to the Constitution, no person shall be compelled to be
a witness against himself. But the law (PD 1886) which created the Agrava
Board decrees that no person shall be excused from testifying on the ground
of self-incrimination. If the law had stopped after this command, it would
have been plainly at variance with the Constitution and void. It was to ward
off such a Constitutional infirmity that the law provided for immunity against
the use of coerced testimony or other evidence, an immunity which, to be
constitutionally adequate, must give at least the same measure of protection
as the fundamental guarantee against self-incrimination.
2. Presidential Decree 1886 was not intended either to restrict or
expand the constitutional guarantee against self-incrimination. On the one
hand, a law cannot restrict a constitutional provision. On the other hand, PD
1886 was adopted precisely to coerce the production of evidence that
hopefully would unmask the killers of Senator Aquino, although the
compulsory process is accompanied by "use" immunity.
3. It is argued that the right against self-incrimination must have
been invoked before the Agrava Board if the use of evidence given therein
against the witness in a subsequent criminal prosecution is to be barred. I
did not agree.
I fail to see why to preserve pursuant to law (PD 1886) one's
constitutional right against self-incrimination, one has to offer resistance to
giving testimony — a resistance which the said law itself says is futile and
cannot prevail, as no witness by its specific injunction can refuse to testify.
4. The constitutional right against self-incrimination may be waived
expressly. It may also be waived impliedly by speaking when one has the
option to hold his tongue. Waiver by implication presupposes the existence
of the right to keep silent. Thus, when one speaks because the law orders
him to do so, his action is not really voluntary and therefore his testimony
should not be deemed an implied waiver of his constitutional right against
self-incrimination.
5. Presidential Decree 1886 does not give private respondents
absolute immunity from prosecution. It only bars the use against them of the
evidence that was elicited from them by the Agrava Board. If there are other
evidence available, private respondents are subject to indictment and
conviction.
6. Moreover, the evidence given to the Agrava Board is not, in my
view, completedly immunized. What PD 1886 bars from use is only the
testimony of the witness who testified before the Agrava Board and
whatever was presented as part of his testimony, as such. PD 1886 could not
have intended to convert non-confidential official documents into shielded
public records that cannot be used as evidence against private respondents,
by the mere fact that they were admitted inevidence as part of private
respondents' testimony before the Agrava Board. In other words, evidence
otherwise available to the prosecution, such as official documents, do not
become barred just because they have been referred to in the course of the
testimony of private respondents and admitted in evidence as part of their
testimony. They may still be subpoenaed and offered in evidence.
Conceivably, some objections might be raised; but the evidence will be
unfettered by the exclusionary rule in PD 1886.
ESCOLIN, J., concurring:
I concur in the dismissal of the petitions. The admission in evidence of
the testimonies of private respondents given before the Agrava Board would
constitute a violation of their right against self-incrimination guaranteed
under Section 20, Article IV of the Constitution. I subscribe to the majority
view that Section 5 of P.D. 1886 cannot be constitutionally tenable, unless a
grant of immunity is read into it vis-a-vis the compulsion it imposes upon a
witness to testify. Otherwise stated, Section 5 of P.D. 1886 should be
interpreted as an immunity statute, which, while depriving one of the right to
remain silent, provides an immunity from prosecution that is as extensive, as
total and as absolute as the guarantees themselves. (Jones Law on Evidence,
Chapter XVIII, Section 863, pp. 1621-1623, Kastigar v. U.S., 1972, 406 US
441).
Clearly, this is how the private respondents understood the legal
provision under consideration. For ably assisted as they were by counsel,
they would not have allowed themselves to be deliberately dragged into
what the Chief Justice would call a "booby trap". Viewed from another angle,
therefore, it could not be truly said that private respondents had waived
their right against self-incrimination in a manner that is clear, categorical,
knowing and intelligent. (Johnson v. Zerbst, 304 US 458, 464, cited in Abriol
v. Homeres, 84 Phil. 525 and Chavez v. CA, 24 SCRA 663).
GUTIERREZ, JR., J., concurring:
I concur in the majority opinion penned by Justice Serafin R. Cuevas
and in the pithy separate opinion of Justice Nestor B. Alampay but would like
to add some personal observations.
This case furnishes an opportunity to appreciate the workings of our
criminal justice system.
The prosecutions which led to this petition serve as a timely reminder
that all of us — civilian or military, layman or judge, powerful or helpless —
need the Bill of Rights. And should the time ever come when like the
respondents we may have to invoke the Constitution's protection, the
guarantees of basic rights must be readily available, in their full strength and
pristine glory, unaffected by what is currently popular or decreed and
heedless of whoever may be involved.
In many petitions filed with this Court and lower courts, the military has
often been charged with riding roughshod over the basic rights of citizens.
Officers and enlisted men in the frontlines of the fight against subversion or
rebellion may, in the heat of combat, see no need to be concerned over such
"niceties" as due process, unreasonable searches and seizures, freedom of
expression, and right to counsel. They are best reminded that these rights
are not luxuries to be discarded in times of crisis. These rights are the
bedrock of a free and civilized society. They are the reason why we fight so
hard to preserve our system of government. And as earlier stated, there
may come times when we may have to personally invoke these basic
freedoms for ourselves. When we deny a right to an accused, we deny it to
ourselves.
The decision of the Court underscores the importance of keeping
inviolate the protections given by the Bill of Rights. Acts which erode or
sacrifice constitutional rights under seductive claims of preserving or
enhancing political and economic stability must be resisted. Any lessening of
freedom will not at all increase stability. The liberties of individuals cannot
be preserved by denying them.
The dividing line between legitimate dissent or opposition on one hand
and subversion or rebellion on the other may be difficult to pinpoint during
troubled times. The lesson of this petition is that those charged with
suppressing the rebellion and those who sit in courts of justice should ever
be vigilant in not lumping legitimate dissenters and rebels together in one
indiscriminate classification.
An abiding concern for principles of liberty and justice is especially
imperative in periods of crisis and in times of transition. And all persons —
from the mighty to the lowly — must be given the fullest measure of
protection under the Bill of Rights if our constitutional guarantees are to
have any meaning.
In addition to the right against self-incrimination, of not being
compelled to be a witness against one's self, so ably discussed by Justice
Cuevas in the Court's opinion, I am constrained by considerations of basic
fairness to vote against granting the petition.
The private respondents were called to testify before the Agrava
Commission. The decree creating the commission stated that no person may
refuse to attend and testify or to produce evidence before it on the ground
that what he says or produces may incriminate him. But since the witness is
compelled to give all he knows or possesses — in effect shorn by law of his
right not to incriminate himself — the decree states that the evidence wrung
from that witness may not be used against him later. This is, simply
speaking, what the petition is all about.
The respondents may be prosecuted as indeed they have been
prosecuted. They may eventually be convicted if the evidence warrants
conviction. However, they may not be convicted solely on the evidence
which came from their own mouths or was produced by their own hands. The
evidence must come from other sources. It would be the height of unfairness
and contrary to due process if a man is required to state what he knows even
if it would incriminate him, is promised immunity if he talks freely, and is
later convicted solely on the testimony he gave under such a promise of
immunity. LLpr
I believe that P.D. 1886 is the first Immunity Act to be enacted in the
Philippines. It may be relevant, therefore, to refer to American decisions
expounding on immunity statutes, more so when a comparison of P.D. 1886
with such statutes as the U.S. Immunity Act of 1954, 68 Stat. 745, 18
U.S.C.A. Section 3486, shows a similarity in the protection given by the
statutes.
The U.S. Immunity Act of 1954 was enacted to assist federal grand
juries in their investigations of attempts to endanger the national security or
defense of the United States by treason, sabotage, espionage, sedition,
seditious conspiracy, and violations of various laws on internal security,
atomic or nuclear energy, and immigration and nationality. The law stated
that a witness shall not be excused from testifying or from producing books,
papers, or other evidence on the ground that it may tend to incriminate him
or subject him to a penalty or forfeiture. The statute then provides:
"But no such witness shall be prosecuted or subjected to any
penalty or forfeiture for or on account of any transaction, matter, or
thing concerning which he is compelled, after having claimed his
privilege against self-incrimination, to testify or produce evidence nor
shall testimony so compelled be used as evidence in any criminal
proceeding . . . against him in any court."
The American statute provides immunity against prosecution,
penalties, and use of the testimony. P.D. 1886 is of more limited scope. Only
the use of the compelled testimony is proscribed. The witness may still be
prosecuted but the prosecution will have to look for evidence other than the
words of the accused given before the Agrava Commission.
I n Brown v. Walker (161 U.S. 591 ) the U.S. Supreme Court was
confronted with the validity of the 1893 Immunity Act. Brown was
subpoenaed to testify before a grand jury investigating railroad anomalies.
He refused to testify on grounds of self-incrimination, arguing that the
Immunity Act compelling him to testify was unconstitutional. The Court ruled
that "(While the constitutional provision in question is justly regarded as one
of the most valuable prerogatives of the citizen, its object is fully
accomplished by the statutory immunity and we are therefore of opinion that
the witness was compellable to answer." In other words, the statutory
immunity takes the place of the invocation of the constitutional guarantee.
There is no need at the time of taking testimony to invoke the Fifth
Amendment because it would be denied any way and the witness would be
compelled to testify. It would be absurd to invoke a protection which cannot
be availed of when compelled to testify. The time to invoke the immunity is
when the testimony is being used contrary to the granted immunity.
Protected by the statutory immunity, a witness cannot even insist on his
right to remain silent when testifying.
I n Ullmann v. United States (350 U.S. 422), the court interpreted the
Immunity Act of 1954 and stated.
xxx xxx xxx
". . . Since that time the Court's holding in Brown v. Walker has
never been challenged; the case and the doctrine it announced have
consistently and without question been treated as definitive by this
Court, in opinions written, among others, by Holmes and Brandeis,
Justices. See, e.g., McCarthy v. Arndstein, 226 U.S. 34, 42; Heike v.
United States, 227 U.S. 131, 142. The 1893 statute has become part
of our constitutional fabric and has been included 'in substantially the
same terms, in virtually all of the major regulatory enactments of the
Federal Government.' Shapiro v. United States, 335 U.S. 1, 6. For a
partial list of these statutes, see, id., 335 U.S. at pages 6-7, note 4.
Moreover, the States, with one exception — a case decided prior to
Brown v. Walker — have, under their own constitutions, enunciated
the same doctrine, 8 Wigmore, Evidence (3d ed.), 2281, and have
passed numerous statutes compelling testimony in exchange for
immunity in the form either of complete amnesty or of prohibition of
the use of the compelled testimony. For a list of such statutes, see 8
Wigmore, Evidence (3d ed., $2281, n. 11 (pp. 478-501) and Pocket
Supplement thereto, $2281, n. 11 (pp. 147-157)." (Emphasis
supplied).
xxx xxx xxx
It is interesting to note how the American Supreme Court in Ullmann
treated the immunity not only against the use of the testimony (as under
P.D. 1886) but even against prosecution.
xxx xxx xxx
"Petitioner, however, attempts to distinguished Brown v.
Walker He argues that this case is different from Brown v. Walker
because the impact of the disabilities imposed by federal and state
authorities and the public in general — such as loss of job, expulsion
from labor unions, state registration and investigation statutes,
passport eligibility and general public opprobrium — is so oppressive
that the statute does not give him true immunity. This, he alleges, is
significantly different from the impact of testifying on the auditor in
Brown v. Walker, who could the next day resume his job with
reputation unaffected. But, as this Court has often held, the immunity
granted need only remove those sanctions which generate the fear
justifying the invocation of the privilege: 'The interdiction of the 5th
Amendment operates only where a witness may possibly expose him
to a criminal charge. But if the criminality has already been taken
away, the amendment ceased to apply.' Hale v. Henkel, 201 U.S. 43,
67. Here, since the Immunity Act protects a witness who is compelled
to answer to the extent of his constitutional immunity, he has of
course, when a particular sanction is sought to be imposed against
him the right to claim that it is criminal m nature." (Emphasis
supplied).
I n United States v. Murdock (284 U.S. 141), the court ruled that "the
principle established i9 that full and complete immunity against prosecution
by the government compelling the witness to answer is equivalent to the
protection furnished by the rule against compulsory self-incrimination."
P.D. 1886, being an immunity statute should not be given a strained or
absurd interpretation in order to achieve a certain result. If the immunity
given by the decree is equivalent to the protection furnished by the right
against self-incrimination, then, paraphrasing Justice Frankfurter in Ullmann,
the same protection given by one of the great landmarks in man's struggle
to make himself civilized must not be interpreted m a hostile or niggardly
spirit,
xxx xxx xxx
". . . Too many, even those who should be better advised, view
this privilege as a shelter for wrongdoers. They too readily assume
that those who invoke it are either guilty of crime or commit perjury
in claiming the privilege. Such a view does scant honor to the patriots
who sponsored the Bill of Rights as a condition to acceptance of the
Constitution by the ratifying States. The Founders of the Nation were
not naive or disregardful of the interest of justice . . ."
I, therefore, join the majority in dismissing the petition.
DE LA FUENTE, J., concurring:
"No person shall be compelled to be a witness against himself."
1 This basic right against self-incrimination, which supplanted the
inquisitorial methods of interrogating the accused as practiced during
the Spanish regime, has become an indispensable part of our laws
since 1900. Pursuant thereto, an accused in a criminal case has the
right not only to refuse to answer incriminating questions but also to
refuse to take the witness stand. He cannot be compelled even to
utter a word in his defense. 2 As stressed in Chavez vs. Court of
Appeals, 3 the rule may otherwise be stated as "the constitutional
right of the accused to remain silent." The accused can forego
testimony 4 without any adverse implication drawn from his decision
to do so, The burden is on the State to establish the guilt of the
accused beyond reasonable doubt; the prosecution must look
elsewhere for other "evidence independently and freely secured." The
rule forbids what has been considered as "the certainly inhuman
procedure of compelling a person 'to furnish the missing evidence
necessary for his conviction'." According to Justice Harlan, it was
intended "to shield the guilty and imprudent as well as the innocent
and foresighted." 5 Transplanted in this country with the advent of
American sovereignty 6 and firmly imbedded in our fundamental law,
7 the said privilege against compulsory self-incrimination, which is
predicated on grounds of public policy and humanity, 8 "is
fundamental to our scheme of justice" 9 and is one of the procedural
guarantees of our accusatorial system. prcd
1. As I see it, what the prosecution proposed to do in these cases

was to present, as evidence of the alleged accessorial acts of private
respondents, the transcripts of their respective testimonies before the
Agrava Board. Confronted by the apparent unwillingness of said respondents
to be called to the witness stand in subsequent criminal proceedings, the
prosecution sought to put into the record of these criminal cases (in lieu of
private respondents' testimonies) the said transcripts and other evidence
given by them in the course of their testimony before the Agrava Board. If
allowed over and despite private respondents' objection, this would be a
clear infringement of the constitutional guarantee that they can invoke in
said criminal proceedings, as all of them did. Since the prosecution cannot
require said respondents to testify in the criminal cases before the
Sandiganbayan, it stands to reason that it is equally disabled from indirectly
compelling respondents to give evidence against themselves by using their
Agrava Board testimonies. The prosecution must present evidence "derived
from a legitimate source wholly independent of the compelled testimony." 10
2. It is contended, however, that these self-incriminatory
testimonies were given "voluntarily" because they did not claim the
constitutional guarantee before or while giving testimony to the Agrava
Board. Voluntariness, I think, cannot be inferred simply from such failure to
invoke the privilege. There was no fair warning or notice to the declarant
that his testimony would be used against him if incriminatory, unless the
privilege is invoked beforehand or during his testimony. If they were properly
warned and still gave testimony without invoking the privilege, then it would
be clear that they knowingly waived the privilege. Otherwise, it meant at the
most a willingness on their part to help the Agrava Board in its fact-finding
investigation without waiving (a) the immunity granted by law, and (b) the
constitutional guarantee against self-incrimination in case of subsequent
prosecution based on their self-incriminatory testimony. For waiver, it is
well-settled, to be effective, "must be certain unequivocal and intelligently,
understandably and willingly made ." 11 Mere submission to en illegal search
or seizure "is not consent" or waiver of objection. 12 The prosecution has the
burden to prove otherwise. The same standard should be observed in self-
incrimination cases. prLL
PD No. 1886 (as amended), which created that "independentad hoc

fact-finding Board," vested it with " plenary powers to determine the facts
and circumstances surrounding the killing [of former Senator Aquino] and to
allow for a free, unlimited and exhaustive investigation into all aspects of
said tragedy." In consonance with these objectives, the law declared that the
privilege was unavailable to an Agrava Board "witness", as follows: "No
person shall be excused from attending and testifying or from producing
other evidence on the ground that his testimony or any evidence requested
of him may tend to incriminate him," 13 etc. At the same time, the Board was
empowered to summarily hold and punish any person in direct contempt for
"refusal to be sworn or to answer as a witness," its judgment being " final
and unappealable."
Quite plainly, the constitutional right against compulsory self-
incrimination could not be invoked by Agrava Board witnesses. The privilege
was suspended or temporarily taken away for purposes of the investigation,
in order that the Board would have access to all relevant evidence and all
sources of information, not excluding compelled incriminatory statements of
probable and possible or potential defendants. An Agrava Board witness
was, under the terms of the quoted provision, placed in a trilemma: (1) to
answer truthfully all questions including those tending to be self-
incriminatory, since he cannot invoke the privilege; (2) to lie and become
liable criminally for perjury; and (3) to insist on his right to remain silent and
be summarily punished by the Board for direct contempt. It is plain that such
a witness was under compulsion to give self-incriminatory testimony. It was
not voluntary. Precisely because of its coerced nature (an infringement of his
constitutional right against self-incrimination), PD No. 1886 promised, in
exchange or as a substitute for the privilege, limited immunity (as provided
in the next succeeding clause, same section), to wit:
". . . but his testimony or any evidence produced by him shall
not be used against him in connection with any transaction matter or
thing concerning which he was compelled, after having invoked his
privilege against self-incrimination, to testify or produce evidence, . .
." 14
Such immunity 15 would bar the prosecution's use against the witness
of his said testimony in subsequent criminal proceedings (wherein he is
charged with offenses related to his testimony). Nevertheless, this would not
operate to change the involuntary nature of his self-incriminatory testimony.
As far as the witness is concerned, it was "coerced", not freely given,
because he was not fully accorded the "liberty of choice." The law withheld
his basic freedom to choose between testifying and remaining silent without
the risk of being punished for direct contempt — to forego testimony which
could possibly be to his detriment.
3. I cannot agree with the proposition that the privilege should be
invoked by the witness before or while giving testimony to the Agrava Board.
Section 5 should be reasonably construed and fairly applied to the cases at
bar, in the light of the accused's constitutional right against compulsory self-
incrimination. The formula of limited-immunity-in-lieu-of-the-privilege
contained in said section rendered unnecessary or superfluous, the
invocation of the privilege before the Board. Under said formula, the witness
was deprived of the privilege to protect himself against inquisitorial
interrogation into matters that a targeted defendant or virtual respondent
can keep to himself in ordinary investigations or proceedings. cdphil
Even if the provision is susceptible of an interpretation in support of

the petitioner's stand, it appears that the time for invoking the privilege is
not clear enough or certain from the language of the law. Equally plausible
and logical is the contrary view that it may be invoked later on when it
became apparent that the prosecution intended to use the testimony given
before the Board to secure conviction of the declarant in the subsequent
criminal proceedings. The privilege cannot be deemed waived by implication
merely as a consequence of failure to claim it before the Board. It bears
emphasis that the right of an accused "witnesses" against compulsory self-
incrimination is predicated on the constitutional guarantee, not on the
special law in question. LLpr
3. In the United States, the generally accepted approach in Fifth

Amendment Cases (involving the constitutional guarantee under
consideration) was stated as follows in Johnson vs. Zerbst: 16 "It has been
pointed out that 'courts indulge in every reasonable presumption against a
waiver ' of the fundamental rights and that we 'do not presume acquiescence
in the loss of such fundamental rights.'" Because, as Dean Griswold of
Harvard Law School (later, Solicitor General of the United States) eloquently
puts it:
"'[T]he privilege against self-incrimination is one of the great
landmarks in man's struggles to make himself civilized . . . [W]e do
not make even the most hardened criminal sign his own death
warrant, or dig his own grave .. We have through the course of history
developed a considerable feeling of the dignity and intrinsic
importance of the individual man. Even the evil man is a human
being." 17
In this jurisdiction, more than four decades ago, the late Justice Jose P.
Laurel — a nationalist, constitutionalist and eminent jurist, whose incisive
and authoritative opinions on constitutional questions are often cited by the
bench and the bar — voted to sustain a claim of the constitutional guarantee
in Bermudez vs. Castillo. 18 In his concurrence, he said inter alia:
"(1) As between two possible and equally rational
constructions, that should prevail which is more in consonance with
t h e purpose intended to be carried out by the Constitution. The
provision . . . should be construed with the utmost liberality in favor of
the right of the individual intended to be secured . . ."
"(2) I am averse to the enlargement of the rule allegedly
calculated to gauge more fully the credibility of a witness if the
witness would thereby be forced to furnish the means for his own
destruction. Unless the evidence is voluntarily given, the policy of the
constitution is one of protection on humanitarian considerations and
grounds of public policy . . ."
"(3) The privilege should not be disregarded merely
because it often affords a shelter to the guilty and may prevent the
disclosure of wrongdoing. Courts can not, under the guise of
protecting the public interest and furthering the ends of justice, treat
a sacred privilege as if it were mere excrescence in the Constitution."
(Emphasis supplied; at page 493.).
In sum, considering the pertinent legal provisions and judicial
pronouncements as well as the climate prevailing when the private
respondents testified before the Agrava Board, I find it unavoidable to reach
the conclusion that they did so under legal, moral and psychological
compulsion. Their compelled testimonies before the Agrava Board cannot
thereafter be used against them in the cases at bar in view of the immunity
granted by P.D. No. 1886. They were not obliged to invoke then and there
the constitutional guarantee. If they did, that would have sufficed to afford
them adequate protection. If they did not, they could do so later on when the
Government prosecutors (in spite of the statutory grant of immunity)
decided, in the subsequent criminal proceedings, to use against themtheir
Agrava Board testimonies. For, as earlier stated, there was no intelligent and
knowing waiver on their part of their constitutional right against self-
incrimination.
Accordingly, and for other reasons well stated in the main and separate
concurring opinions, I vote to dismiss the petitions.
ALAMPAY, J., concurring:
I vote for the dismissal of the petition in these consolidated cases.
What appears to be the basic and principal issue to which the
consideration of the Court is addressed to is the singular question of whether
testimonies adduced by the private respondents before the Ad Hoc Agrava
Fact Finding Board and sought to be introduced against them in the
Sandiganbayan wherein they have been accused were rightfully excluded as
evidence against them.
I find untenable the insistence of the petitioner Tanodbayan that the
private respondents should have claimed the right against self-incrimination
before the said Fact Finding Board and that having omitted doing so, the
said privilege afforded to them by law can no longer be invoked by them
before the Sandiganbayan.
The right claimed by private respondents rests on the fundamental
principle that no person shall be compelled to be a witness against himself
as so stated in our Constitution and from the fact that Section 5 of P.D. 1886
disallows the use against him of such testimony or any evidence produced
by him before the said Fact Finding Board, except for perjury. Petitioner
argues however, that there was a waiver of this right to self-incrimination
when respondents proceeded to give their testimonies on various dates
before the Agrava Fact Finding Board without formally invoking on said
occasions their right against self-incrimination.
As private respondents could not have excused themselves from
testifying before said Board as clearly emphasized in the very first clause of
Section 5 of P.D. 1886, and as at that point of time, there was no reason for
the declarant to anticipate or speculate that there would be any criminal
charge or any proceeding instituted against them, it would therefore, be
unnatural and illogical to expect that private respondents would even
contemplate the need of prefacing their declarations with an invocation
before the Fact Finding Board of their privilege against self-incrimination.
In fact for a declarant to announce his claim of the aforestated
privilege prior to or while testifying before said Fact Finding Board, would
irresistibly create an inference and convey an impression that said witness is
burdened with his own awareness that he stands already incriminated in
some wrong. To insist therefore, even in the absence yet of any proceeding
against him, that the witness invoke the said privilege before the Agrava
Fact Finding Board, would be obviously self-demeaning. Such an effect could
not have been intended by Section 5 of P.D. 1886, which was even meant to
grant to the witness a benefit rather than a burden. It is more reasonable
therefore, to conclude that the privilege against self-incrimination would be
accorded to said witness after he has invoked the same in a subsequent
proceeding wherein he has been charged of a wrong doing, except in a case
for perjury. It is only at such time when the necessity of invoking the mantle
of the privilege or the immunity afforded to him by law would arise.
It cannot also be rightfully concluded that private respondents had
intentionally relinquished or abandoned the said right which they claimed
before the Sandiganbayan. The fact that the issue of when and before what
forum should such claim to the right against self-incrimination be necessarily
presented has provoked much discussion and debate because of divergent
views. This has even prompted the submissions to the Court of opinions of
amicus curiae or friends of the court as to how Section 5 of Presidential
Decree 1886 should be construed and applied, — which are however
different from and contrary to the views expressed by the Justices of the
Sandiganbayan and other legal luminaries. These conflicting views negate
the proposition that there was an effective waiver made by the private
respondents of their rights.
It has earlier been stated by this Court that to be effective, such waiver
must be certain and unequivocal and intelligently, understandably and
willingly made. (Chavez vs. Court of Appeals, et al., 24 SCRA 663). In the
same cited case, it has been stated that courts indulge in every reasonable
presumption against waiver of fundamental constitutional rights and that we
do not presume acquiescence in the loss of fundamental rights (Citing
Johnson vs. Zerbst, 304 U.S. 458, 464, 82 L. ed. 1461, 1466). Furthermore,
whether the alleged waiver is express or implied, it must be intentional.
(Davison vs. Klaess, 20 N.E. 2d. 744, 748, 280 N.Y. 252; 92 CJS, 1058).
I find it difficult to accept that private respondents had at any time,
ever intended to relinquish or abandon their right against self-incrimination.
Makasiar, C.J., Concepcion Jr., Gutierrez, Jr., Escolin, De la Fuente and
Patajo, JJ., concur.
PATAJO, J., concurring:
I vote for the dismissal of the petition in these consolidated cases. Said
petitions do not merit being given due course and should be dismissed
outright.
I hold the view that the testimonies and evidence given before the
Agrava Board are inadmissible as evidence against those who testified or
gave said evidence irrespective of whether said persons were subpoenaed or
invited. I believe it is not a condition sine qua non to the non-admissibility of
said evidence that at the time they testified or gave evidence before the
Agrava Board that they had invoked their privilege against self-incrimination.
The Agrava Board was created as an independent ad hoc fact finding
board to determine all the facts and circumstances surrounding the
assassination of former Senator Benigno S. Aquino, Jr. on August 21, 1983. It
was given plenary powers to allow for a free, unlimited and exhaustive
investigation into all the aspects of said tragedy. It was given the power to
issue subpoena or subpoena duces tecum and "other compulsory processes"
requiring the attendance and testimony of witnesses and the production of
any evidence relative to any matter under investigation by said Board.
Those who have been subpoenaed to appear and testify or produce
any documentary evidence before the Board shall not be excused from
testifying or presenting evidence before said Board on the ground that their
testimony or evidence may tend to incriminate them or subject them to
penalty or forfeiture. I believe an invitation from the Board is as much a
compulsory process 1 to appear and testify before the Board as a subpoena
and one receiving said invitation cannot also excuse himself from appearing
and testifying before the Board. 2 Petitioners appear to share this view when
they said in subparagraph (c), paragraph 7 of their petition in G.R. No. L-
71208-09.
"(c) People were either invited or issued subpoenae,
depending upon their rank and office, to give testimony before the
Board and among those invited were respondents General Fabian C.
Ver and Major General Olivas while the rest of the military
respondents were issued subpoenae."
Unquestionably, it was the intention of the decree creating the Board
to investigate the Aquino assassination to encourage all who have some
information on any "aspect of said tragedy" to furnish the Board said
information whether they are subpoenaed or issued other forms of
compulsory process such as an invitation and to do so without fear that what
they will say may be used against them. It is in this context that Section 5 of
PD No. 1886 should be viewed. When they testified before the Board, they
were given full assurance that whatever they say before the Board will not
be used against them. Only if they testify falsely that they may be
prosecuted for perjury. This is to prevent people from preventing the Board
from finding out the truth about the Aquino assassination by giving false
leads or information for ulterior reasons.
Actually Section 5 of PD No. 1886 falls under that category of statutes
which do not pronounce an entire immunity by forbidding punishment or
prosecution for any testimony or evidence given in connection with the
investigation of certain offenses more widely known as immunity statutes,
but merely prohibit in any criminal prosecution the use of the testimony of
the witness. Immunity statutes as well as statutes prohibiting the use of
testimony in any subsequent criminal prosecution have been the expedients
resorted for the investigation of many offenses, chiefly those whose proof or
punishment were otherwise impracticable because of the implication in the
offense itself of all who could bear useful testimony.
"The expediency and practical utility of this mode of obtaining
evidence may, as a measure of legislation, be open to argument. But
the tradition of it as a lawful method of annulling the privilege against
self-incrimination is unquestioned in English history." Wigmore on
Evidence, Vol. 111, p. 469.
Speaking of this kind of privilege of non-admission of testimony given
by the witness in subsequent prosecutions as allowed by the common law
and modified by subsequent statutes, State vs. Quarles, 13 Ark 307, 311,
said:
"The privilege in question, in its greatest scope, as allowed by
the common law — and no one, be he witness or accused, can
pretend to claim it beyond its scope at the common law — never did
contemplate that the witness might not be proved guilty of the very
crime about which he may be called to testify; but only that the
witness should not be compelled to produce the evidence to prove
himself guilty of that crime. His privilege, therefore, was not an
exemption from the consequences of a crime that he might have
committed; but only an exemption from the necessity of himself
producing the evidence to establish his own crime . . . So long as it
might be lawful to produce in evidence against an accused party
whatever he might before have voluntarily said as a witness on a
prosecution against another, there were no means by which the
privilege could be made available short of a claim by the witness to
be silent; and as that was the rule of the common law, this was the
common-law mode of making the privilege available. And that silence
was but a mode of making the privilege available, and was not of the
essence of the privilege itself, is conclusively proven by all that
current of enlightened authority, to which we yield our fullest assent,
which holds that the privilege has ceased when the crime has been
pardoned, when the witness has been tried and acquitted, or is
adjudged guilty, or when the prosecution, to which he was exposed,
has been barred by lapse of time . . .But the Legislature has so
changed the common-law rule, by the enactment in question in the
substitution of a rule that the testimony, required to be given by the
act, shall never be used against the witness for the purpose of
procuring his conviction for the crime or misdemeanor to which it
relates, that it is no longer necessary for him to claim his privilege as
to such testimony, in order to prevent its being afterwards used
against him. And the only question that can possibly arise under the
present state of the law, as applicable to the case now before us, is as
to whether our statutory regulations afford sufficient protection to the
witness, responsive to this new rule and to his constitutional
guarantee against compulsory self-accusation . . ."
Considering the objectives sought to be achieved by PD No. 1886 the
provision thereof making testimony and evidence given before the Board
inadmissible in evidence against the ones giving the same, provides
protection beyond that granted by the Constitutional provision against self-
incrimination, otherwise it will be constitutionally suspect. Counselman vs.
Hitchcock, 142 US 547, 35 L Ed 1110. cdll
Of relevance are the observations of the District Court, N.D. Illinois, in

United States vs. Armour & Co., 112 Fed 808, 821, 822:
"All of these immunity acts are relied upon by the individual
defendants, and, while expressed in slightly varying language, they
all mean the same thing, and each of them is a substitute for the
privilege contained in that clause of the fifth amendment to the
Constitution, reading:
'Nor shall any person be compelled in any criminal case to be a
witness against himself.'
"This fifth amendment deals with one of the most cherished
rights of the American citizen, and has been construed by the courts
to mean that the witness shall have the right to remain silent when
questioned upon any subject where the answer would tend to
incriminate him. Congress by the immunity laws in question and by
each of them has taken away the privilege contained in the
amendment and it is conceded in argument that this cannot be done
without giving to the citizen by way of immunity something as broad
and valuable as the privilege thus destroyed. We are not without
authority on this question. By a previous act, Congress undertook to
take away the constitutional privilege by giving the citizen an
equivalent, and the Supreme Court held in the case of Counselman v.
Hitchcock, 142 U.S. 547, 12 Sup. Ct. 195, 35 L. Ed., 1110, that the
substitute so given was not an equivalent. Then, at various times, the
immunity acts in question were passed by Congress with full
knowledge that in furnishing a substitute for this great right of the
citizen, it must give something as broad as the privilege taken away.
It might be broader, but it could not be narrower.
"Now, in my judgment, the immunity law is broader than the
privilege given by the fifth amendment, which the act was intended
to substitute. The privilege of the amendment permits a refusal to
answer. The act wipes out the offense about which the witness might
have refused to answer. The privilege permits a refusal only as to
incriminating evidence The act gives immunity for evidence of or
concerning the matter covered by the indicement, and the evidence
need not be self-incriminating. The privilege must be personally
claimed by the witness at the time. The immunity flows to the witness
by action of law and without any claim on his part. Brown v. Walker,
161 U.S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819; Hale vs. Henkel
(recently decided) 26 Sup. Ct. 370, 50 L. Ed. ____; State v. Quarles, 13
Ark. 307, quoted in 142 U.S. 567, 12 Sup. Ct. 199 (35 L. Ed. 1110);
People v. Sharp, 107 N.Y. 427, 14 N.E. 319, 1 Am. St. Rep. 851;
Brown v. Walker, approved in Lamson v. Boyden, 160 Ill. 613, 620,
621, 43 N.E. 781; People v. Butler, St. Foundry, 201 Ill. 236, 248, 66
N.E. 349.
"I am further of opinion that the immunity given by the act must
be as broad as the liabilities imposed by the act. The act calls upon
the citizen to answer any 'lawful requirement' of the Commissioner.
'Require' means to ask of right and by authority. Webster's
Dictionary. Tenn. Coal Co. v. Saller (C.C.) 37 Fed. 545, 547. Anything
is a requirement by a public officer which brings home to the person
called upon that the officer is there officially and desires compliance.
'Demand' and 'require' are synonymous. Miller v. Davis, 88 Me. 454,
34 Atl. 265. The citizen may be punished for refusal to answer such
lawful requirement. I am of opinion that when the Commissioner of
Corporations, who has power to compel, makes his demand, it is the
duty of the witness to obey.
"The contention has been made that in order to get immunity
the citizen shall wait until the compulsion becomes irresistible. That is
the effect of the government contention. I am not able to bring my
mind to accept that doctrine. If I am right in saying that immunity
flows from the law, without any claim on the part of the defendant —
and at different times that has been conceded here in argument —
then no act of any kind on his part which amounts to a claim of
immunity, which amounts to setting up a claim of immunity, is
demanded by the law. The law never puts a premium on contumacy.
A person does not become a favored citizen by resistance to a lawful
requirement. On the contrary, the policy of the law favors the willing
giving of evidence whenever an officer entitled to make a demand
makes it upon a citizen who has no right to refuse. And it would be
absurd and un-American to favor the citizen who resists and places
obstacles in the way of the government as against the citizen who,
with a full knowledge of the law, obeys without resistance the
demand of an officer who has the legal right to make the demand for
something which the citizen has no legal right to refuse. This, then is
the proposition to which we are led: When an officer, who has a legal
right to make a demand makes such demand upon a citizen who has
no legal right to refuse, and that citizen answers under such
conditions, he answers under compulsion of the law."
There is no merit then to the contention that private respondents
should be invoked the privilege against self-incrimination before the Agrava
Board for precisely PD No. 1886 had explicitly provided that the testimony of
those who testified before the Board can not be used against them. It will be
a meaningless act of supererogation to require that said witnesses before
answering any question addressed to them must invoke their privilege
against self-incrimination. The phrase "after having invoked his privilege
against self-incrimination" in Section 5 of PD No. 1886 to be consistent with
the intention of said decree, should refer to the time that the testimony of
the witness will be used against him in another proceeding, such as the
cases now pending before the Sandiganbayan. It could not refer to the
proceedings before the Agrava Board because no one is being accused
before said Board and no matter how self-incriminating the testimony of said
witness is, he runs no risk of being prejudiced, much less convicted by the
Agrava Board. It is in the prosecution of cases based on the report of said
Board that the witness should invoke his right against self-incrimination.
These private respondents did just that when they moved for the exclusion
in evidence of their statement before the Agrava Board. Any other
interpretation would defeat the very purpose of PD No. 1886. cdll
Makasiar, C.J., Alampay, Concepcion Jr. and Escolin, JJ., concur.

TEEHANKEE, J., dissenting:
The majority decision is based on erroneous premises, viz., that the
case at bar presents a "novel question;" that "this Court has not been
previously called upon to rule on issues involving immunity statutes" and is
burdened with the "monumental task" of "laying the criteria . . . (to) build
future jurisprudence on a heretofore unexplored area of judicial inquiry." 1
The fact is that we have a wealth of settled jurisprudence and precedents,
Philippine and foreign, that control the determination of the simple issue at
bar and call for the setting aside of the exclusion order issued by respondent
court (Sandiganbayan) which wrongly rules as totally and absolutely
inadmissible the testimonies given by private respondents General Ver and
Olivas and their six co-respondents (all charged as accessories) as well as all
the documents, records and other evidence produced by them before the
Fact-Finding Board, notwithstanding that all were represented by counsel
and none of them invoked the privilege or right against self-incrimination or
made any claim or objection at the time of his testimony before the Board
that any question propounded to him and which he willingly answered called
for an incriminating answer against himself. LexLib
The following vital considerations based on settled jurisprudence and

precedents show that respondent court acted with gross error and
misconception of the applicable principles of the right against self-
incrimination:
1. Respondent court grossly disregarded the settled guidelines laid
down for trial courts by this Court in People vs. Yatco 3 thru Mr. Justice J.B.L.
Reyes, speaking for a unanimous Court that —
— "By so doing [ordering the exclusion of the proferred confessions of
the two accused upon a ground not raised by counsel but motu proprio by
the trial court, i.e. lack of independent proof of conspiracy] the [trial] court
overlooked that the right to object is a mere privilege which the parties may
waive; and if the ground for objection is known and not seasonably made,
the objection is deemed waived and the [trial] court has no power, on its
own motion, to disregard the evidence (Marella vs. Reyes, 12 Phil. 1) . . .
Suffice it to say that the lower court should have allowed such confessions to
be given in evidence at least as against the parties who made them, and
admit the same conditionally to establish conspiracy, in order to give the
prosecution a chance to get into the record all the relevant evidence at its
disposal to prove the charges. At any rate, in the final determination and
consideration of the case, the trial court should be able to distinguish the
admissible from the inadmissible, and reject what, under the rules of
evidence, should be excluded."
— Trial courts should be liberal in the matter of admission of proof and
avoid the premature and precipitate exclusion of evidence on doubtful
objections to its admissibility, citing the Court's long-standing basic ruling
and policy in Prats & Co. vs. Phoenix Ins. Co. 4 that reception and admission
of evidence objected to on doubtful or technical grounds is ultimately the
less harmful course to either litigant, since the Supreme Court upon appeal
would then have all the materials before it necessary to make a correct
judgment (instead of returning the case for a new trial which only prolongs
the determination of the case); and
— "There is greater reason to adhere to such policy in criminal cases
where questions arise as to admissibility of evidence for the prosecution, for
the unjustified exclusion of evidence may lead to the erroneous acquittal of
the accused or the dismissal of the charges, from which the People can no
longer appeal." 5
2. The right against self-incrimination is found in the first sentence
of section 20 of the Bill of Rights of the 1973 Constitution stating that "No
person shall be compelled to be a witness against himself." This single
sentence constituted the whole text of section 18 of the Bill of Rights of the
1935 Constitution. This right against self-incrimination has a settled meaning
in jurisprudence which is fully applicable here since the right against self-
incrimination was first enforced here as an "inviolable rule" in U.S. President
McKinley's instructions under date of April 7, 1900 to the Taft Commission 6
As recounted by the late Mr. Justice Conrado Sanchez as ponente for a
unanimous Court in the leading 1968 case of Chavez vs. Court of Appeals 7 ,
"Mr. Justice Malcolm, in expressive language, tells us that this maxim was
recognized in England in the early days in a revolt against the thumbscrew
and the rack. An old Philippine case [1904] speaks of this constitutional
injunction as 'older than the Government of the United States;' as having 'its
origin in a protest against the inquisitorial methods of interrogating the
accused person;' and as having been adopted in the Philippines 'to wipe out
such practices as formerly prevailed in these Islands of requiring accused
persons to submit to judicial examinations, and to give testimony regarding
the offenses with which they were charged.'" But Mr. Justice Sanchez equally
stressed that "(an) accused occupies a different tier of protection from an
ordinary witness. Whereas an ordinary witness may be compelled to take the
witness stand and claim the privilege as each question requiring an
incriminating answer is shot at him , 9
As restated by Mr. Justice J.B.L. Reyes for a unanimous Court in Suarez
vs. Tengco , 10 "No legal impediment exists against a litigant calling any of
the adverse parties to be his witness. . . . True, an accused in a criminal case
may not be compelled to testify, or to so much as utter a word, even for his
own defense (U.S. vs. Junio, 1 Phil. 50; U.S. vs. Luzon, 4 Phil. 344; U.S. vs.
Binayoh, 35 Phil. 23; Sec. 1(c), Rule 111, Rules of Court). But while the
constitutional guaranty against self-incrimination protects a person in all
types of cases, be they criminal, civil, or administrative (Art. 111, Sec. 1, No.
18, Phil. Constitution; Bermudez vs. Castillo, 64 Phil. 483), said privilege, in
proceedings other than a criminal case against him who invokes it, is
considered an option of refusal to answer incriminating question, and not a
prohibition of inquiry.
"'Except in criminal cases, there is no rule prohibiting a party
litigant from utilizing his adversary as witness. As a matter of fact,
section 83 of Rule 123, Ru les of Court expressly authorizes a party to
call an adverse party to the witness stand and interrogate him. This
rule is, of course, subject to the constitutional injunction not to
compel any person to testify against himself. But it is established that
the privilege against self-incrimination must be invoked at the proper
time, and the proper time to invoke it is when a question calling for a
criminating answer is propounded. This has to be so, because before
a question is asked there would be no way of telling whether the
information to be elicited from the witness is self-incriminating or not.
As stated in Jones on Evidence (Vol. 6, pp. 4926-4927), a person who
has been summoned to testify 'cannot decline to appear, nor can he
decline to be sworn as a witness' and 'no claim of privilege can be
made until a question calling for a criminating answer is asked; at
that time, and, generally speaking, at that time only, the claim of
privilege may properly be interposed.' (Gonzales vs. Sec. of Labor, L-
6409, February 5, 1954, 11 cit. in Navarro, Criminal Procedure, p.
302.)'"
Suarez was cited with favor and reaffirmed in Bagadiong vs. Gonzales,
12 wherein once again the Court, with the concurrence in the result of the
now Chief Justice, under similar facts held that the petitioner (provincial
treasurer) could not refuse to take the stand as an adverse party in a civil
case since the privilege against self-incrimination "in proceedings other than
a criminal case against him who invokes it, is considered an option to refuse
to answer incriminating questions, and not a prohibition of inquiry" and
"must be invoked when a question calling for an incriminating answer is
propounded, because before a question is asked, there would be no way of
telling whether the information to be elicited from the witness is self-
incriminating or not." The Court therein denied "the petition to prohibit
respondent judge from directing petitioner to take the witness stand and
testify .,. without prejudice to petitioner's properly invoking the guaranty
against self-incrimination when questions are propounded to him on the
stand. Costs against the petitioner."
3. All the respondents at bar were in this category of ordinary
witnesses in the hearings of the Fact-Finding Board. They were not accused
in any criminal case nor were they persons under custodial interrogation who
under the second part of section 20 of the Bill of Rights (consisting of three
additional sentences 13 ) were given additional rights to silence and counsel
and to be informed of such rights and to the outlawing of any confession
obtained in violation of the rights guaranteed in the cited section, by virtue
of the incorporation into the Bill of Rights of the rights granted in the rulings
of the U.S. Supreme Court in the Miranda-Escobedo cases. As noted by
former Chief Justice Enrique M. Fernando, "(I)t amounts to an acceptance of
the applicability in this jurisdiction of the epochal American Supreme Court
decision in Miranda vs. Arizona, the opinion being rendered by Chief Justice
Warren. It is thus now a part of our fundamental law. Such doctrine was
promulgated in response to the question of the admissibility of statements
obtained from an individual interrogated under police custody, considering
that such a time and under the stress of such conditions, his right against
self-incrimination could be rendered futile ." 14 The Miranda pronouncements
thus became necessarily a part and parcel of the additional rights granted in
the cited section 20, as made by the late U.S. Chief Justice Warren in the
Miranda case thus: "The prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective
to secure the privilege against self-incrimination. By custodial interrogation,
we mean questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action
in any significant way. " 15 These additional Miranda rights could not be
invoked by respondents, as the members of the Fact-Finding Board were not
law enforcement officers nor were respondents under custodial
interrogation.
As ordinary witnesses before the Fact-Finding Board and under the
settled jurisprudence above-cited, they could not invoke the right to silence
and refuse to take the witness stand. Their right and privilege (which is not
self-executory or automatic ipso jure) was, while testifying, whether
voluntarily or by subpoena, to invoke the privilege and refuse to answer as
and when a question calling for an incriminating answer is propounded.
Failure to invoke the privilege which is personal does automatically result in
its loss ipso facto. The law, usage and settled jurisprudence uniformly
require that the privilege must be asserted or else is lost. The court or board
upon its invocation still has to pass upon and rule upon the proper
application of the privilege. As restated by Francisco, the rule and exceptions
are: "Certainly, where the witness, on oath declares his belief that the
answer to the question would criminate or tend to criminate him, the court
cannot compel him to answer, unless it is clear perfectly, from a careful
consideration of all the circumstances of the case, that the witness is
mistaken, or is acting in bad faith, and that the answer cannot possibly have
any such tendency." 16
4. The view that withal, it is best, although not required, that a
warning to the witness of his option to refuse an answer to incriminating
questions — as advanced even by the Tanodbayan at the hearing — dates
back to a century ago and has been long discarded as "witnesses are usually
well enough advised beforehand by counsel as to their rights when such
issues impend" and "as general knowledge spread among the masses and
the preparation for testimony became more thorough." Thus, Wigmore, the
bible on the law of evidence so remarks and adds that "there is no reason for
letting a wholesome custom degenerate into a technical rule." —
"It is plausible to argue that the witness should be warned and
notified, when a criminating fact is inquired about, that he has an
option to refuse an answer; and this view was often insisted upon, a
century ago, by leaders at the Bar.
xxx xxx xxx
"But there are opposing considerations. In the first place. such a
warning would be an anomaly; it is not given for any other privilege;
witnesses are in other respects supposed to know their rights; and
why not here? In the next place, it is not called for by principle, since,
until the witness refuses, it can hardly be said that he is compelled to
answer; nor is it material that he believes himself compelled; for the
Court's action, and not the witness' state of mind, must be the test of
compulsion. Again, the question can at any rate only be one of
judicial propriety of conduct, for no one supposes that an answer
given under such an erroneous belief should be struck out for lack of
the warning. Finally, in practical convenience, there is no demand for
such rule; witnesses are usually well enough advised beforehand by
counsel as to their rights when such issues impend, and judges are
too much concerned with other responsibilities to be burdened with
the prevision of individual witnesses' knowledge; the risk of their
being in ignorance should fall rather upon the party summoning than
the party opposing. LLphil
"Nevertheless, it is plain that the old practice was to give such a

warning, when it appeared to be needed. But, as general knowledge
spread among the masses, and the preparation for testimony became
more thorough, this practice seems to have disappeared in England,
so far at least as any general rule was concerned.
"In the United States, both the rule and the trial custom vary in
the different jurisdictions. No doubt a capable and painstaking judge
will give the warning, where need appears, but there is no reason for
letting a wholesome custom degenerate into a technical rule." 17
But from the environmental facts and circumstances of the Fact-
Finding Board hearings, to require such a warning to the witness of his
option of refusal to answer incriminatory questions would have been an
exercise in absurdity and futility. As is a matter of public knowledge,
respondents had concluded in their investigation that Galman was the
assassin of the late Senator Aquino. As observed by former Senator
Ambrosio Padilla as amicus curiae at the hearing on the merits of August 15,
1985, they were all too eager to testify and make a strong effort to gain
support from the Fact-Finding Board and the public for the military version
and report that the assassin was Galman who was forthwith gunned down by
the military escorts and guards at the tarmac. It would have been ridiculous,
if not bordering on officiousness and impropriety, to warn them as the
highest ranking military officers of their option of refusal to answer
incriminatory questions and also as the majority holds, 18 of their right to
remain silent. When respondents generals appeared before the Board,
respondent Ver precisely made the opening statement that.
"GENERAL VER:
I welcome this opportunity, Madame Justice, members of this
Honorable Board, Dean, Gentlemen — this opportunity to assist . . .
this Honorable Board in the quest for truth and justice. We all deplore
this tragic incident which is now the subject of inquiry. This Board,
this Honorable Board is mandated to conduct a free, full, and
exhaustive investigation into the matter under investigation. We all
hope that my testimony, madame, will somehow dispel any
misconception, or any misinformation surrounding this tragic incident.
I am now ready to answer your questions.
JUSTICE AGRAVA:
Now, General, at the outset, we give the right and the privilege
for every witness to be assisted by counsel. Do you have your
counsel with you this morning?
GENERAL VER:
I did not bring any counsel, madame, but . . . if I need a
counsel, madame, I could probably look for . . . probably . . .
JUSTICE AGRAVA:
Yes?
GENERAL VER:
I may call Fiscal Parena, or the Public Coordinator. I was talking
to Atty. Tan to assist me, in the protection of my constitutional rights
...
JUSTICE AGRAVA:
Yes.
GENERAL VER:
. . . if it is necessary.
ATTY. TAN:
Your Honor, please, it is part of the function of this office to help
the witness if he doesn't have counsel, and so, if the General is willing
to have me, I will happily serve as counsel, Your Honor.
JUSTICE AGRAVA:
All right.
GENERAL VER:
Thank you." 19
Respondent Olivas likewise testified before the Board in response to its

invitation to assist it in determining the true facts and circumstances
surrounding the double killing.
6. The majority decision would go around this by asserting without
basis in the record that "(A)ll the private respondents, except Generals Ver
and Olivas, are members of the military contingent that escorted Sen.
Aquino while embarking from the plane that brought him home to Manila on
that fateful day. Being at the scene of the crime as such, they were among
the first line of suspects in the subject assassination. General Ver on the
other hand, being the highest military authority of his co-petitioners labored
under the same suspicion and so with General Olivas, the first designated
investigator of the tragedy, but whom others suspected, felt and believed to
have bungled the case. The papers, especially the foreign media, and rumors
from ugly-wagging tongues, all point to them as having, in one way or
another participated or have something to do, in the alleged conspiracy that
brought about the assassination. Could there still be any doubt then that
their being asked to testify, was to determine whether they were really
conspirators and if so, the extent of their participation in the said
conspiracy?" In fact, the respondent court's decision and separate opinions
as well as the majority decision at bar and the separate concurring opinions
all fail to specify the particular portions of the testimonies of respondents or
any specific question and answer that can be in any way deemed to be self-
incriminating. Indeed, even if we assumed arguendo that they were warned
of their right against self-incrimination and tried — absurdly — to invoke the
same, there is no specific question and answer by way of testimony that
could be pointed to them as having been made under compulsion — for the
simple reason that their testimony was in full support of their own military
report that Galman was Aquino's killer and for which they were trying to gain
the Board's acceptance. In the all too brief and inadequate deliberations held
on August 20 and 21, 1985 after the hearing on the merits of August 15,
1985, without reaching a definite conclusion, the ponente reported — and I
share this view from a cursory examination, for want of material time, of the
excluded testimonies only since the excluded documents, records and other
evidence produced by them were not before the Court — that there is
nothing in the excluded testimonies that could in any way be deemed self-
incriminatory per se. So there would be no legal basis whatever for their
exclusion. But the ponente circulated only last August 26th at noon his draft
for dismissal of the petitions which were filed only last month. And its
release has been set for August 30th.
7. There has not been enough time to weigh and ponder on the far-
reaching consequences of the decision at bar. The decision orders the total
and unqualified exclusion of the testimonies and evidence produced before
the Fact-Finding Board by the eight respondents charged as accessories
"even though (they) failed to claim (their) privilege before giving the
incriminating testimony" (citing 21 Am. Jur. 2d. 218). But the cited
compilation of American State and Federal Law expressly cautions that "The
question whether a witness must claim exemption from self-incrimination to
be entitled to immunity from subsequent prosecution must in each case be
determined in the light of constitutional and statutory provisions in the
jurisdiction where the question arises" (21 Am. Jur. 2d. 151). It recites on the
same cited page that "Under a statute granting immunity to persons who
have been compelled to testify, one who has appeared voluntarily and
testified without claiming his privilege against self-incrimination , or one who
has appeared and testified pursuant to a void subpoena or one addressed to
another person, without claiming the privilege, cannot say he has been
compelled to testify, and therefore, he is not entitled to immunity." And the
necessity of claiming the privilege against self-incrimination before an
administrative officer or board such as the Fact-Finding Board is recognized
to be essential, thus:
"This is not only equally true as for the case of testimony in a
judicial trial, but the explicitness is here even more essential, and
particularly where the administrative officer makes a general demand
for documents or testimony upon a broad class of topics. The reason
is clear. The officer has testimonial powers to extract a general mass
of facts, or which some, many, or most will certainly be innocent and
unprivileged, some may be privileged communications (e.g., between
attorney and client) whose privilege remains unaffected by the
statute defining his powers, and some may be privileged as self-
incriminating but liable to become demandable by overriding this
privilege with a grant of immunity. Among these mass of facts, then,
the officer will seek those which are relevant to his administrative
inquiry; he cannot know which of them fall within one or another
privilege in particular, which of them tend to criminate at all, or to
criminate a particular person; if such facts are there, he may not
desire or be authorized to exercised the option of granting immunity
so as to obtain them; his primary function and power is to obtain the
relevant facts at large, and his power to obtain a special and limited
class of facts by grant of immunity is only a secondary one, and one
which he will not exercise till a cause arises, if even then.
"For these reasons of practical sense, then, as well as for the
inherent requirements of principle already noticed for judicial officers,
it is particularly true for an inquiry by an administrative officer that
the witness must explicitly claim his privilege, and specifically the
privilege against self-incrimination, and must then be overridden in
that claim, before immunity can take effect." (VII Wigmore on
Evidence, 2282, pp. 517-518).
The concurrence of Justice Vera Cruz sounds even more ominous thus:
"I believe that where evidence is produced by a witness in
accordance with the conditions of the statute granting immunity such
as P. D. No. 1886, as amended, its immunity provisions attach
instantly and it is entirely immaterial what use the investigation
authority makes of it (People ex rel. Massarsky v. Adams, 47 N.Y.S. 2d
375, 62 N.E. 2d 244).
"Consequently, the evidence, given before the Agrava Board by
the accused in the instant cases namely, Generals Fabian Ver and
Prospero Olivas, and Sergeants Pablo Martinez, Tomas Fernandez,
Leonardo Mojica, Pepito Torio, Prospero Bona and Aniceto Acupido,
cannot be used against them and this proscription did attach
instantly when they testified before the same Board. Verily, the
prohibition stands, irrespective of the purpose for which the
prosecution would like to use this evidence."
The total and unqualified exclusion of the testimony and evidence
granted by respondent court and sustained by the majority decision herein
refers expressly to the eight respondents charged as accessories. Would not
this unprecedented grant of immunity and exclusion of testimony be now
claimed by the rest of the twenty-two accused charged as principals except
for the lone civilian? As reported by the press, respondent court has
suspended its trial and placed the pressure on the Court to rush its decision,
as "(T)he so-called 'trial of the century' has been delayed since last week on
motion of the defense panel which had argued that the high court's decision
on the admissibility of Ver's testimonies was a vital prerequisite to the
presentation of witnesses for the defense." 20 Would this not result in the
People holding an empty bag of excluded testimonies and evidence, since to
all intents and purposes all respondents-accused testified before the Fact-
Finding Board? Would their testimonies be inadmissible for purposes even of
impeaching such testimony as they may now give before respondent court?
These ponderous questions need not confront us had we but required
respondent court to hew to the settled procedure and doctrine of Yatco
(supra, par. 1 hereof) of giving the prosecution a chance to get into the
record its relevant evidence until the final determination and consideration
of the case, for the unjustified exclusion of evidence of the prosecution may
lead to the erroneous acquittal of the accused or dismissal of the charges,
from which the People can no longer appeal.
8. The alleged "ambiguous phraseology" of section 5 of P.D. 1886
cited in respondent court's questioned order and bolstered by the majority
decision's "novel" conclusion and ruling that the cited section quoted therein
21 requires a claim from the witness of the privilege against self-
incrimination but " forecloses under threat of contempt proceedings [under
section 4] against anyone who makes such a claim. But the strong
testimonial compulsion imposed by section 5 of P.D. 1886 viewed in the light
of the sanctions provided in section 4, infringes upon the witness' right
against self-incrimination. As a rule, such infringement of the constitutional
right renders inoperative the testimonial compulsion, meaning, the witness
cannot be compelled to answer UNLESS a co-extensive protection in the
form of IMMUNITY is offered. Hence, under the oppressive compulsion of P.D.
1886, immunity must in fact be offered to the witness before he can be
required to answer, so as to safeguard his sacred constitutional right. But in
this case, the compulsion has already produced its desired results — the
private respondents had all testified without offer of immunity, Their
constitutional rights are, therefore, in jeopardy. The only way to cure the law
of its unconstitutional effects is to construe it in the manner as if IMMUNITY
had in fact been offered. We hold, therefore, that in view of the potent
sanctions imposed on the refusal to testify or to answer questions under Sec.
4 of P.D. 1886, the testimonies compelled thereby are deemed immunized
under Section 5 of the same law. The applicability of the immunity granted
by P.D. 1886 cannot be made to depend on a claim of the privilege against
self-incrimination which the same law practically strips away from the
witness." Emphasis supplied).
It bears emphasis that none of respondents made any such claim
against self-incrimination. The "oppressive compulsion" if it may be so-
called, consists of a maximum penalty of P200. — fine and/or 30 days
imprisonment for direct contempt. As indicated, it would be ridiculous for
any respondent to make such claim when his testimony was but in full
support of their own military theory and report that Galman killed Aquino.
The language of the cited section 22 is plain and simple. It excuses no
one from testifying and producing books and records but grants him
immunity from prosecution (except for perjury) "after having invoked his
privilege against self-incrimination ." There is nothing oppressive about such
compulsion in exchange for immunity provided the witness invokes his and
claims his privilege against self-incrimination.
In the Court's Resolution of July 9, 1985, Mr. Justice Aquino, voting to
dismiss outright the petitions, opined that "The clause 'concerning which he
is compelled to testify after having invoked his privilege against self-
incrimination ' is surplusage. It is in conflict with the first clause which, as
already stated, gives immunity to the witness except in case of perjury. So,
section 5 should be read as if that clause were not there." This is contrary to
the rules of statutory construction that there is no room for construction
when the text is plain and simple, i.e. requires invocation and that the
provisions must be taken in context and all the words taken into account and
given their full meaning. The Anti-Gambling Law, Act No. 1757, enacted on
October 9, 1907 by the Philippine Commission (probably the first Philippine
immunity statute) granted such absolute immunity and does not contain the
conditional clause requiring that the witness invoke his privilege against self-
incrimination. Section 10 of the cited Act reads:
"Sec. 10. Upon any investigation or proceeding for violation
of this Act no person shall be excused from giving testimony upon the
ground that such testimony would tend to convict him of a crime, but
such testimony cannot be received against him upon any criminal
investigation or proceeding; Provided, however, That no person so
testifying shall be exempt from prosecution or punishment for perjury
committed in the course of any proceeding or investigation had by
virtue of this Act." (1 CPS [Rev. Ed.] 190).
But when the statute grants conditional immunity (and not absolute as
in the above-quoted section 10 of the Anti-Gambling Act) then it explicitly
contains the cited conditional clause in section 5 of P.D. 1886 granting
immunity only when " he is compelled to testify after having invoked his
privilege against self-incrimination."
This is but in accord with long-settled Philippine jurisprudence cited
above (supra, paragraph 2 hereof), that the witness has an option of refusal
to answer incriminatory questions, which he loses ipso facto if he does not
invoke the privilege and nevertheless answers the questions. Here, in view
of the national and international importance of the case with the country's
very prestige at stake, the P.D. added the incentive of offering immunity:
" T h e purpose of immunity provisions is to aid prosecuting officers by
inducing criminals or their confederates to turn state's evidence and tell on
each other, to enable prosecuting officers to procure evidence which would
otherwise be denied to them because of the constitutional right against self-
incrimination, and at the same time to protect every person from giving
testimony which directly or indirectly would be helpful to the prosecution in
securing an indictment or a conviction. The provisions for immunity are or
should be as broad as or co-extensive with the constitutional provisions
granting the privilege against self-incrimination." (21 Am. Jur. 2d. Criminal
Law, sec. 148). It is bad enough that no state's evidence turned up to tell on
his confederates in exchange of immunity. But to call the cited section "a
booby trap for the unsuspecting or unwary witness" unless it was construed
as granting absolute and unconditional immunity from the very fact of
merely testifying as a witness before the Board — without claiming immunity
nor giving any incriminatory information that would aid the state to
determine the true facts about Aquino's assassination — would be a sell-out.
It would make a shambles of the letter and spirit as well as the salutary
intent and objective of the Decree to ferret out the truth and obtain state
witnesses.
9. The truncated and distorted reading of the cited section 5 which
consists of a single integrated paragraph and splitting it into two isolated
parts so as to allow the privilege against self-incrimination (which was
already lost for failure to claim it in the Board hearings) to be resurrected
and raised in a much later time frame and "subsequent criminal proceeding"
is against all usage and rules of statutory construction, not to mention the
long line of above-cited jurisprudence to the contrary. And if there still be
doubt, we need only reproduce hereunder the similar wording of Senate Joint
Resolution 137 (Public Law 88-202) after which section 5 of P.D. 1886 was
patterned. Said law was enacted by the U.S. Congress in December 1963 to
empower the Warren Commission to issue subpoenas requiring the
testimony of witness and the production of evidence relating to any matter
under its investigation. The Report of the President's Commission on the
Assassination of President John F. Kennedy in its foreword on page X stated
that "In addition, the resolution authorized the Commission to compel
testimony from witnesses claiming the privilege against self-incrimination
under the fifth amendment to the U.S. Constitution by providing for the grant
of immunity to persons testifying under such compulsion." (Emphasis
supplied). The cited Public Law reads:
"(e) No person shall be excused from attending and
documents, or other evidence in obedience to a subpoena, on the
ground that the testimony or evidence required of him may tend to
incriminate him or subject him to a penalty or forfeiture; but no
individual shall be prosecuted or subjected to any penalty or
forfeiture (except demotion or removal from office) for or on account
of any transaction, matter, or thing concerning which he is compelled,
after having claimed his privilege against self-incrimination, to testify
or produce evidence , except that such individual so testifying shall
not be exempt from prosecution and punishment for perjury
committed in so testifying." (Emphasis supplied).
10. As already indicated above, none of the respondents,
public and private, has indicated the specific portions of their
testimony that they have been "oppressively compelled" to give, in
alleged violation of their privilege against self-incrimination. The
reason for this is that they all testified voluntarily and eagerly to
support the military report and version that Galman killed Senator
Aquino. The Board unanimously rejected the military report and found
that the killings were the product of criminal conspiracy. A brief
flashback is herein appropriate: Within 60 seconds from his being led
away by soldiers from his plane that had just landed at the Manila
International Airport on Sunday, August 21, 1983 at past one p.m.,
former Senator Benigno S. Aquino, Jr. who was coming home after
three years of self-exile in the U.S. laid dead face down on the
tarmac, with his brain smashed by a bullet fired point blank into the
back of his head by a murderous assassin. 23 Also lying dead on the
tarmac, face up, near the senator was another man, to be identified
much later as Rolando Galman, whom the soldiers admittedly gunned
down. The military pointed to him as Aquino's assassin, who had
somehow allegedly penetrated the air-tight security of close to 2000
men ringing the airport. The military version met with great public
disbelief and skepticism. The first fact-finding commission created
under Administrative Order No. 469 dated August 24, 1983 and P.D.
1879 dated August 27, 1983 was the object of several suits charging
bias and that the President "had already prejudged the case, by
rejecting the version of foreign media that it is one of the soldiers,
supposed to guard Aquino, who fatally shot him." 24 The said
commission was dissolved per P. D. 1886, dated October 14, 1983
(later amended by P. D. 1903 dated February 8, 1984) which created
the ad hoc Fact-Finding Board with plenary powers to investigate "the
treacherous and vicious assassination (which) has to all Filipinos
become a national tragedy and national shame . . . (and) to
determine the facts and circumstances surrounding the killing and to
allow for a free, unlimited and exhaustive investigation into all the
aspects of said tragedy." The Board after extensive hearings,
submitted to the President their majority report on October 24, 1984,
while the chairman former Court of Appeals Justice Corazon Agrava
submitted her minority report one day earlier on October 23, 1984.
All five members of the Board unanimously rejected the official
military version that Galman was the assassin and instead found that
there was criminal conspiracy. Their main difference of opinion is that
the four-member majority found twenty-five military men (headed by
respondents Generals Ver, Olivas and Luther Custodio) and one
civilian "indictable for the premeditated killing of Senator Benigno S.
Aquino, Jr. and Rolando Galman at the MIA on August 21, 1983." The
chairman's report confined the conspiracy to seven men headed by
respondents Ver and Olivas. (The chairman in her minority report had
found that "(T)he indications are that the plotters had agreed that
only one would be the assassin; that the others can either point to
Galman as the killer; or they can state that they did not see the
shooting; and that they will give false testimony to mislead and
confuse."
11. Only the former lawyers of the Fact-Finding Boards created
under P.D. No. 1886, consisting of Messrs. Andres R. Narvasa, Bienvenido A.
Tan, Jr., Mario E. Ongkiko and Francisco A. Villa have given us the answer
that there is nothing incriminatory per se in the testimonies of the
respondents, in the Memorandum submitted by them, to wit:
"I. The so-called 'Galman Theory' — that it was Rolando
Galman who killed Senator Aquino — is either true or untrue, a matter
the SANDIGANBAYAN will have to resolve.
"II. If the 'Galman Theory' be true — as advocated by the
military officers concerned — then the testimony of Ver, et al. is true.
It is self-incriminatory. There would the be no reason to exclude it.
"If, on the other hand, the theory be untrue — as the
prosecution in turn advocates — then the testimony of Ver, et al. is
untrue. It is self-incriminatory of them, because by giving it and
thereby seeking to hide the crime, they incriminated themselves.
Withal there would also be no reason to exclude it. Surely, after their
plot to deceive the Board had been exposed, they should not now be
allowed to use the law to bring about exclusion of the very proof of
their deception."
In short, the testimonies of respondents could only be deemed
incriminating if it be found that they sought thereby to hide or cover up the
crime and thus incriminate themselves, as accessories to the murder of
Senator Aquino. The former Fact-Finding Board lawyers amplify their theory,
as follows:
"5. The plain language of Section 5, PD 1886 precludes its
interpretation as extending immunity to all testimony or evidence
produced before the Board in obedience to subpoena — regardless of
whether the witness giving such evidence invokes the privilege
against self-incrimination or not.
"6. The fact is, the invocation by Ver, et al. of such right
would have been self-defeating first, it would have prevented them
from presenting evidence in substantiation of the 'Galman Theory,'
which they wished the Board to accept; and second, it might have
exposed to some extent their real objective, which was to deceive the
Board.
"7. It would have been incongruous for Ver, et al. to have
claimed that their testimony would incriminate them as accessories
to the murder of Aquino when they were, by testifying, actually in
process of committing that precise crime, becoming accessories.
"8. Neither PD 1886 nor the Constitution should be used as
a shield for crime, fraud or trickery.
"9. The foregoing propositions were ignored by the
SANDIGANBAYAN. Instead, with all due respect, it has —
a. given Section 5, PD 1886 a strained construction not justified by
and contrary to its plain language;
b. given Section 20, Article IV, Constitution, a meaning at odds with
its plain terms and contrary to relevant decisions of this Honorable Supreme
Court; and
c. sanctioned the use of legal provisions to shield persons from
criminal liability arising from their perfidious testimony before the Fact-
Finding Board."
There is no legal ground nor justification for the exclusion order. It is
for respondent court, upon consideration of the evidence for the People,
without any exclusion, and of the evidence for the defense in due course, to
render its verdict of guilty or not guilty. cdphil
With a word of commendation for the former Fact-Finding Board

lawyers and former Senator Ambrosio Padilla and Atty. Ramon Gonzales,
whose memoranda as amici curiae, have been of great assistance, I vote,
accordingly, to grant the petitions at bar and to set aside the questioned
exclusion order.
MELENCIO-HERRERA, J., dissenting:
I vote to grant the Petitions and to reverse the ruling of the
Sandiganbayan.
The resolution of the issue revolves around the interpretation to be
given to Sec. 5 of PD No. 1886, reading as follows:
the Board on the grounds that his testimony or the evidence required
forfeiture;"
"but his testimony or any evidence produced by him shall not
be used against him in connection with any transaction, matter, or
privilege against self-incrimination, to testify or produce evidence,
except that such an individual so testifying shall not be exempt from
prosecution and punishment for perjury committed in so testifying,
nor shall he be exempt from demotion or removal from office.
(Paragraphing supplied).
As I read the law, Section 5 does not require that the person testifying
before the Agrava Fact Finding Board (the Board, for short) shall first invoke
the privilege against self-incrimination. Under said statute it is obvious that
he has no such privilege.
But what is the effect of the second part providing that his testimony or
any evidence produced by him shall not be used against him in connection
with any transaction, matter or thing concerning which he is compelled,
after having invoked his privilege against self-incrimination, to testify or
produce evidence, except in case of perjury?
To my mind, the above portion does not grant to a person who has
testified before the Board absolute or total immunity. It should not operate
as a shield against criminal liability specially since, under Section 12 of the
same Decree, the Board may initiate the filing of the proper complaint if its
finding so warrant. Thus,
"SEC. 12. The findings of the Board shall be made public.
Should the findings warrant the prosecution of any person the Board
may initiate the filing of the proper complaint with the appropriate
government agency . . ." (Emphasis supplied).
The inquiry before the Board was a general one. It was not directed
against any particular individual or individuals. Private respondents did not
testify therein as suspects or as accused persons. There should therefore be
no hindrance to a criminal prosecution.
"It has been held that where an inquiry by a grand jury is a
general one and is not directed against a particular individual, the
fact that on the basis of the information elicited, grounds for a
criminal prosecution may evolve against a witness, may not serve as
a bar to such prosecution (U.S. v. Okin, D.C.N.J., 154 F. Supp. 553;
Berson v. Goldstein, 124 N.Y.S. 2d 452) even though he testified
before the grand jury without being warned of his constitutional
privileges against self-incrimination." (U.S. v. Okin, supra) (Emphasis
supplied).
The right against self incrimination is not a prohibition of inquiry but an
option of refusal to answer incriminating questions (Cabal vs. Kapunan, 6
SCRA 1059 [1962]). The kernel of the privilege is testimonial compulsion.
Whether or not any specific portion of the testimonies of private respondents
is incriminating should be determined by the Sandiganbayan itself. The claim
against self-incrimination should be invoked when a specific question, which
is incriminating in character, is put to a witness in the subsequent
proceeding. There should be no automatic "immunity bath" of the entire
testimony before the Board for immunity does not extend to such of the
evidence as is not privileged.
". . . But it is established that the privilege against self-
incrimination must be invoked at the proper time, and the proper time
to invoke it is when a question calling for an incriminating answer is
propounded. This has to be so, because before e question is asked
there would be no way of telling whether the information to be
elicited from the witness is self-incriminating or not. As stated in
Jones on Evidence (Vol. 6, pp. 4926-4927), a person who has been
summoned to testify 'cannot decline to appear, nor can be decline to
be sworn as a witness' and 'no claim or privilege can be made until a
question calling for a criminating answer is asked; at that time, and
generally speaking, at that time only, the claim of privilege may be
interposed.'" (Gonzales vs. Sec. of Labor, et al., 94 Phil. 325, 326
[1954]).
Moreover, the issue actually addresses itself to a question of
admissibility or competency of evidence and not to its credibility. Whether
the evidence so admitted is to be given any probative weight or credence is
best addressed to the Sandiganbayan. It should be recalled that the Board
was not unanimous in its assessment of the testimonies given.
There are additional considerations. While the right against self-
incrimination is indubitably one of the most fundamental of human rights,
Section 5 of PD No. 1886 should be construed so as to effect a practical and
beneficent purpose and not in such a manner as to hinder or obstruct the
administration of criminal justice.
". . . Any statute which, while it compels him to testify, protects
the witness if he does disclose the circumstances of his offense and
the sources from which or the means by which evidence of its
commission or of his connection with it may be obtained or made
effectual for his subsequent prosecution and conviction is sufficient to
comply with the constitutional requirements. Such a statute,
however, should be construed to effect a practical and beneficent
purpose, namely, at the same time to secure the witness in his
constitutional rights and to permit the prosecuting officer to secure
evidence of a crime. It should not be construed so as to unduly
impede, hinder, or obstruct the administration of criminal justice."
Brown v. Walker, 161 US 591, 16 Sup. Ct. 644, 40 L. Ed. 819." (People
ex rel Hunt vs. Lane, 116 N.Y.S. 990, 132 App. Div. 406).
The objective in all this exercise is to arrive at the truth. "Though the
constitutional provisions for the protection of one who appears . . . must be
liberally and fairly applied, the interests of the people are also entitled to
consideration" (Wharton's Criminal Evidence, 11th Ed., Vol. 1, p. 609; People
vs. Coyle, 15 N.Y.S. 2d 441, 172 Mis. 593). Specially so since, in the language
of PD No. 1886 itself, the "treacherous and vicious assassination of former
Senator Benigno S. Aquino, Jr. on August 21, 1983, has to all Filipinos
become a national tragedy and national shame."
In the interest of eliciting the truth, the excluded testimonies should be
admitted, leaving it to the Sandiganbayan to determine which specific
questions and answers are to be excluded because they are incriminatory,
and which should be given credibility, if found to be competent and
admissible.
RELOVA, J., dissenting:
The issue raised in these two petitions is whether the testimonies and
other evidence produced by the private respondents before the Agrava
Board may be used as evidence against them before the Sandiganbayan.
Respondent Sandiganbayan rejected their testimonies on the ground
that "under statutes providing in substance that no person shall be excused
from testifying or furnishing evidence on the ground that the testimony or
evidence may tend to incriminate him, but that no person shall be subject to
indictment or prosecution for anything concerning which he may testify or
furnish evidence, it has been held that one who testifies concerning criminal
offenses when required to do so is entitled to immunity from prosecution
even though he fails to claim his privilege before giving the incriminating
testimony (21 Am Jur 2d 218). He could not be required, in order to gain the
immunity which the law afforded, to go though the formality of an objection
or protest which, however made, would be useless (VIII Wigmore 516)." (p. 4,
Resolution of Sandiganbayan)
Section 5 of Presidential Decree No. 1886 provides that:
the Board on the ground that his testimony or the evidence required
forfeiture; but his testimony or any evidence produced by him shall
not be used against him in connection with any transaction, matter or
privilege against self-incrimination, to testify or produce evidence . .
.." (Emphasis supplied).
Pursuant to the above Presidential Decree no one can refuse to testify
or furnish evidence before the Fact Finding Board. However, his testimony or
any evidence produced shall not be used against him after he invoked the
privilege against self-incrimination. Stated differently, the privilege against
self-incrimination must be invoked when the question at the hearing before
the Board, calling for an incriminating answer is propounded; otherwise,
before any question is asked of the witness, he would not know whether the
information to be elicited from him is incriminating or not.
In the case of Gonzales vs. Secretary of Labor, et al., 94 Phil. 325, this
Court held that "the privilege against self-incrimination must be invoked at
the proper time, and the proper time to invoke it is when question calling for
a criminating answer is propounded. This has to be so, because before a
question is asked there would be no way of telling whether the information
to be elicited from the witness is self-incriminating or not. As stated in Jones
on Evidence (Vol. 6, pp. 4926-4927), a person who has been summoned to
testify 'cannot decline to appear, nor can he decline to be sworn as a
witness' and 'no claim of privilege can be made until a question calling for a
criminating answer is asked; at that time, and generally speaking, at that
time only, the claim of privilege may properly be interposed.'" And, since it is
a personal right to be exercised only by the witness, this privilege against
self-incrimination may be waived by him and, when so waived, cannot
thereafter be asserted. The privilege is waived by his voluntary offer to
testify by answering questions without objecting and/or claiming the
privilege.
When private respondents gave testimonies before the Board they
were not defendants but witnesses invited and/or subpoenaed "to ventilate
the truth through free, independent and dispassionate investigation." They
could not refuse or withhold answers to questions propounded to them
unless the inquiry calls for an incriminating answer and a timely objection is
raised.
In the case at bar, since the private respondents answered questions
from the Fact Finding Board without claiming the privilege against self-
incrimination they cannot now be allowed to invoke the immunity clause
provided in Section 5 of Presidential Decree No. 1886.
I vote to grant the petitions.
Footnotes
CUEVAS, J.:
1. SECOND WHEREAS.
2. Justice Corazon Juliano Agrava being the appointed Chairman of this ad hoc
Fact Finding Board.
3. Gen. Fabian C. Ver & Major Gen. Prospero Olivas both appeared and testified
in response to an invitation — p. 6, COMMENT.
4. The other private respondents appeared and testified pursuant to
subpoenas.
5. Petitioner in G.R. Nos. 71212-13.
6. Exh. VVV, tsn, April 6, 1984 Gen. Ver (1-97); Exh. VVV-1, tsn, April 6, 1984 —
Gen. Ver (1-54); Exh. VVV-2, tsn, April 10, 1984 — Gen. Ver (1-150); Exh.
VVV-3, tsn, April 23, 1984 — Gen. Ver (1-135); Exh. VVV-4, tsn, April 23,
1984 — Gen. Ver (1-43, go); Exh. WWW, tsn, June 27, 1984 — Gen. Olivas (1-
87); Exh. WWW-1, tsn, June 27, 1984 — Gen. Olivas (1-81, 93); Exh. XXX, tsn,
Dec. 22, 1983 — Martinez (1-93); Exh. XXX-1, Dec. 22, 1983 — Martinez (1-
82); Exh, XXX-2, tsn, Jan. 12,1984 — Martinez (1-20, 91); Exh. YYY, tsn, Dec,
28, 1983 — Fernandez (1-60); Exh. YYY-1, tsn, April 25, 1984 — Fernandez
(18-86, 104 with page 48); Exh. YYY-2, tsn, April 30,1984 — Fernandez (1-27,
80); Exh. ZZZ, tsn, Jan. 17,1984 — Mojica (1-83); Exh. ZZZ-1, tsn, Jan.
17,1984 — Mojica (1-111); Exh. ZZZ-2, no date — Mojica (57-106); Exh. ZZZ-
3, tsn, March 23, 1984 — Kavinta and Mojica (1-7); Exh. ZZZ-4, tsn, April 2,
1984 Mojica and Kavinta (1-43, 112); Exh. AAAA, tsn, Dec. 27, 1983 — Torio
(1-79); Exh, AAAA-1, tsn, Dec. 27, 1983 — Torio (1-25, 62); Exh. AAAA-2, tsn,
no date — Torio (36-54); Exh. AAAA-3, tsn, June 21, 1984 — Torio (43153);
Exh. BBBB, tsn, no date — Bona (80-93); Exh. BBBB-1, tsn, June 28, 1984 —
Bona (1-36, 83 without page 15); Exh. BBBB-2 no date — Bona (84-110); Exh.
CCCC, tsn, April 25, 1984 — Acupido (87104); Exh. CCCC-1, tsn, April
30,1984 — Acupido (1-46).
7. Annex "B", Petition.

8. Annexes "B" & "C", Petition.
9. Annex "E", Petition.
10. Annex "F", Petition.
11. Annex "J", Petition.
12. Petition, page 9.
13. Annex "N", Petition.
14. G.R. Nos. 71212-13.
15. G.R. Nos. 71208-09.
16. Petition, pages 14-18.
17. Comment, pages 8-11.

18. Ad Hoc Board.
19. Whereas — P.D. 1886.
20. Sec. 10, 3rd par., P.D 1886.
21. Section 4, P.D. 1886.
21-A. Art. IV Sec. 20, 1973 Constitution.
22. Art. IV, Sec. 20, 1973 Constitution.

23. Magtoto vs. Manguera, 63 SCRA 4 (1975); People vs. Jimenez, 71 SCRA 186
(1976); People vs. Buscato, 74 SCRA 30 (1976); People vs. Petla, 80 SCRA
589 (1977); People vs. Page, 77 SCRA 348 (1977); Draculan vs. Donato, 85
SCRA 266 (1978); People vs. Molleda, 86 SCRA 667 (1978); People vs.
Saldua, 87 SCRA 169 (1978); People vs. Beralde, 91 SCRA 125 (1979); People
vs. Tampus, 96 SCRA 624 (1980); People vs. Comendador, 100 SCRA 155
(1980); People vs. Hipolito, 106 SCRA 610 (1981); People vs. Matilla, 105
SCRA 768 (1981); People vs. Umali, 116 SCRA 23 (1982); Morales, Jr. vs.
Enrile, 121 SCRA 538 (1983); People vs. Ramos, 122 SCRA 312 (1983);
People vs. Jose, 124 SCRA 89 (1983); People vs. Colana, 126 SCRA 23 (1983);
People vs. Tuvera, 130 SCRA 168 (1984); People vs. Pizarro, 131 SCRA 624
(1984); People vs. Lachica, 132 SCRA 230 (1984); People vs. Pizarro, 131
SCRA 624 ( 1984).
24. Miranda vs. Arizona, 384 US 436.
25. Bernas, the 1973 Philippine Constitution, Cases & Materials, Part II, 1974
Ed., p. 745 citing Session of November 25, 1972; Session of November 27,
1972 of the 1971 Constitutional Convention.
26. Chavez vs. CA, 24 SCRA 663, citing State vs. Wolfe, 266 N.W., 116, 125;
104 ALR, 464.
27. 414 U.S. 70, 38 L. Ed. 2d 274 (1973).
28. 6 SCRA 1059.
29. 70 C.J. Sec. 875, page 722; Wigmore on Evidence, Volume 8, Section 2252,
pages 834-835.
30. President's Instructions to the Philippine Commission; Philippines Bill of July
1, 1902, Section 5, par. 3 — cited in Francisco's Revised Rules of Court in
Criminal Procedure, pages 390-391.

31. Pinkerton v. Farr, W., Va., 220 S.E. 2d 682, 687.
32. Black Law Dictionary, 5th Edition, 1979.
33. Proceedings of the Convention, Session of November 29, 1972, cited in

BERNAS; The 1973 Philippine Constitution Notes and Cases, Part II, 1974 ed.,
page 745.
34. In Re Guariña, 24 Phil. 375; Paredes v. Executive Secretary, 128 SCRA 6
(1984).
35. Yu Cong vs. Trinidad, 47 Phil. 385: Automotive Parts & Equipment, 30 SCRA
248 (1969).
36. Araneta vs. Concepcion, 52 O.G. 151.
37. Lefkowitz vs. Turley, 414 US 70, at 85.
38. 123 SCRA 583, 603 (1983).
CONCEPCION, JR., J., concurring:
1. G.R. No. 68113, Aquilino Q. Pimentel, Jr., versus Commission on Elections et

al., promulgated December 19, 1984.
DELA FUENTE, J., concurring:
1. Section 20, Art. IV, 1973 Constitution.
2. Bagadiong vs. Gonzales, 94 SCRA 906.
3. 24 SCRA 663.
4. Pascual vs. Board of Medical Examiner, 28 SCRA 344, at 350, citing Chavez.
5. Marchetti vs. United States, mentioned also in Chavez at page 678.
6. President McKinley's Instructions, under date of April 7, 1900.
7. Section 1(18), Art. III, 1935 Constitution; Section 20, Art. IV, 1973
Constitution.
8. ". . . of policy because it would place the witnesses against the strongest
temptation to commit perjury, and of humanity because it would be to extort
a confession of truth by a kind of duress every species and degree of which
the law abhors." (Chavez at page 679).
9. Ibid., at page 678.
10. Kastigar vs. US, 406 US 441, 32 L. Ed. 2d 212.
11. Chavez, at page 682.
12. Pasion Vda. de Garcia vs. Locson, 65 Phil. 689, 695.
13. Section 5, PD No. 1886.
14. "except that such individual so testifying shall not be exempt from
prosecution and punishment for perjury committed in so testifying, nor shall
he be exempt from demotion or removal from office."

15. which is not an immunity against prosecution as that found in RA No. 1379.
16. 304 U.S. 458, 464, cited in Chavez at p. 683.
17. E. Griswold, the Fifth Amendment Today, 1955, cited by Justice Fred Ruiz
Castro in his separate opinion in Chavez, at page 689, underscoring supplied.
18. 64 Phil. 483.
TEEHANKEE, J., dissenting:
1. At page 6.
2. Except respondent General Olivas, who as a member of the bar, represented
himself.
3. 97 Phil., 940 (1955); emphasis supplied.
4. 52 Phil. 807, 816-817 (1929).
5. Emphasis supplied.
6. Vol. 1, Public Laws of the Phil., p. 1 xiii.
7. 24 SCRA 663 (1968).

8. Gonzales vs. Secretary of Labor, 94 Phil. 325, 326.
9. Cabal vs. Kapunan, L-19052, December 29, 1962; 21 Am. Jur. 2d. p. 383; 98
C.J.S., p. 265; 8 Wigmore, Evidence 1961 ed., p. 406; 3 Wharton's Criminal
Evidence, 11th ed., pp. 1959-1960.
10. 2 SCRA 71(1961): emphasis supplied.
11. 94 Phil. 325.
12. 94 SCRA 906 (Dec. 28, 1979), First Division, per Pacifico de Castro, J.
13. ". . . Any person under investigation for the commission of an offense shall
have the right to remain silent and to counsel, and to be informed of such
right. No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him. Any confession obtained in
violation of this section shall be inadmissible in evidence."
14. Fernando, The Constitution of the Philippines, 2nd Ed., p. 710.
15. Miranda vs. Arizona, 384 U.S. 436 (1966).

16. VIII Francisco's Revised Rules of Court, Evidence, Part II, p. 226.
17. VIII Wigmore on Evidence, 2268, sec. 398-400.
18. Separate opinion of the Chief Justice at page 4.
19. Petition in G.R. No. 71208-09, p. 9.
20. Metro Manila Times issue of Aug. 28, 1985.
21. Quoted in full at page 14, majority decision.
22. At page 14, majority decision.

23. Par. 1.0.0., Board members' Majority Report, composed of Messrs. Luciano
S. Salazar, Amado C. Dizon, Dante G. Santos and Ernesto F. Herrera.
24. Petition in G.R. No. 64969, Ramon A. Gonzales vs. Fernando Commission,
page 5; G.R. No. 64983, LABAN vs. Chief Justice Enrique M. Fernando, and
G.R. No. 64993, Demetrio G. Demetria vs. Hon. E. M. Fernando, etc., et al.
The three cases were eventually dismissed as moot and academic by joint
Resolution of the Court dated October 20, 1983 "considering that the
respondent Chairman and four members of the respondent Commission
created by Administrative Order No. 469 had already tendered their
resignations, which the President of the Philippines accepted with deep
regret; and that the respondent Commission had been dissolved and
superseded by the Commission created by P.D. No. 1886."

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EN BANC

[G.R. Nos. 71208-09. August 30, 1985.]

SATURNINA GALMAN AND REYNALDO GALMAN, petitioners, vs.

[G.R. Nos. 71212-13. August 30, 1985.]

PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN

Lupino A. Lazaro and Ambrosio Padilla for petitioners.

On August 21, 1983, a crime unparalleled in repercussions and

To determine the facts and circumstances surrounding the killing and

Upon arraignment, all the accused, including the herein private

The crux of the instant controversy is the admissibility in evidence of

Among this class of witnesses were the herein private respondents,

Of course, it may be argued — is not the right to remain silent available

It is true a person in custody undergoing investigation labors under a

"Compulsion as it is understood here does not necessarily

"That no person shall be . . . compelled in a criminal case to be

Immunity statutes may be generally classiﬁed into two: one, which

As a matter of fact, numerous decisions culled by American

"1. We are committed to the mandate of the Rule of Law.

1. As I see it, what the prosecution proposed to do in these cases

PD No. 1886 (as amended), which created that "independentad hoc

Even if the provision is susceptible of an interpretation in support of

3. In the United States, the generally accepted approach in Fifth

Of relevance are the observations of the District Court, N.D. Illinois, in

Makasiar, C.J., Alampay, Concepcion Jr. and Escolin, JJ., concur.

The following vital considerations based on settled jurisprudence and

"Nevertheless, it is plain that the old practice was to give such a

Respondent Olivas likewise testiﬁed before the Board in response to its

With a word of commendation for the former Fact-Finding Board

7. Annex "B", Petition.

17. Comment, pages 8-11.

22. Art. IV, Sec. 20, 1973 Constitution.

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33. Proceedings of the Convention, Session of November 29, 1972, cited in

1. G.R. No. 68113, Aquilino Q. Pimentel, Jr., versus Commission on Elections et

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7. 24 SCRA 663 (1968).

15. Miranda vs. Arizona, 384 U.S. 436 (1966).

22. At page 14, majority decision.

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