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Republic of the Philippines

EN BANC

G.R. No. L-56291 June 27, 1988

CRISTOPHER GAMBOA, petitioner,

Rene V. Sarmiento for petitioner.

PADILLA, J.:

Petition for certiorari and prohibition, with prayer for a temporary restraining order, to annul and set aside the order dated 23 October 1980 of the Court of First
Instance of Manila, Branch XXIX, in Criminal Case No. 47622, entitled "People of the Philippines, Plaintiff vs. Cristopher Gamboa y Gonzales, Accused," and to
restrain the respondent court from proceeding with the trial of the aforementioned case.

Petitioner alleges that:

On 19 July 1979, at about 7:00 o'clock in the morning, he was arrested for vagrancy, without a warrant of arrest, by
Patrolman Arturo Palencia. Thereafter, petitioner was brought to Precinct 2, Manila, where he was booked for
vagrancy and then detained therein together with several others.

The following day, 20 July 1979, during the lineup of five (5) detainees, including petitioner, complainant Erlinda B.
Bernal pointed to petitioner and said, "that one is a companion." After the Identification, the other detainees were
brought back to their cell but petitioner was ordered to stay on. While the complainant was being interrogated by the
police investigator, petitioner was told to sit down in front of her.

On 23 July 1979, an information for robbery was filed against the petitioner.

On 22 August 1979, petitioner was arraigned. Thereafter, hearings were held. On 2 April 1980, the prosecution
formally offered its evidence and then rested its case.

On 14 July 1980, petitioner, by counsel, instead of presenting his defense, manifested in open court that he was
filing a Motion to Acquit or Demurrer to Evidence. On 13 August 1980, petitioner filed said Motion predicated on the
ground that the conduct of the line-up, without notice to, and in the absence of, his counsel violated his constitutional
rights to counsel and to due process.

On 23 October 1980, the respondent court issued the following order (assailed in the petition at bar) denying the
Motion to Acquit:

For resolution is a motion to acquit the accused based on the grounds that the constitutional rights of
the said accused, to counsel and to due process, have been violated. After considering the allegations
and arguments in support of the said motion in relation to the evidence presented, the Court finds the
said motion to be without merit and, therefore, denies the same.

The hearing of this case for the purpose of presenting the evidence for the accused is hereby set on
November 28, 1980, at 8:30 o'clock in the morning.

Hence, the instant petition.

On 3 March 1981, the Court issued a temporary restraining order "effective as of this date and continuing until
otherwise ordered by the court".1

Petitioner contends that the respondent judge acted in excess of jurisdiction and with grave abuse of discretion, in
issuing the assailed order. He insists that said order, in denying his Motion To Acquit, is null and void for being
violative of his rights to counsel and to due process. 2

We find no merit in the contentions of petitioner.

To begin with, the instant petition is one for certiorari, alleging grave abuse of discretion, amounting to lack of
jurisdiction, committed by the respondent judge in issuing the questioned order dated 23 October 1980.

It is basic, however, that for certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of power,
the very antithesis of judicial prerogative in accordance with centuries of both civil law and common law traditions. 3
To warrant the issuance of the extraordinary writ of certiorari, the alleged lack of jurisdiction, excess thereof, or
abuse of discretion must be so gross or grave, as when power is exercised in an arbitrary or despotic manner by
reason of passion, prejudice or personal hostility, or the abuse must be so patent as to amount to an evasion of
positive duty, or to a virtual refusal to perform a duty enjoined by law, or to act at all, in contemplation of law. 4 This is
not the situation in the case at bar. The respondent court considered petitioner's arguments as well as the
prosecution's evidence against him, and required him to present his evidence.

The rights to counsel and to due process of law are indeed two (2) of the fundamental rights guaranteed by the
Constitution, whether it be the 1973 or 1987 Constitution. In a democratic society, like ours, every person is entitled
to the full enjoyment of the rights guaranteed by the Constitution.

On the right to counsel, Sec. 20, Art. IV of the Bill of Rights of the 1973 Constitution, 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.

The same guarantee, although worded in a different manner, is included in the 1987 Constitution. Section 12 (1, 2 &
3), Article III thereof provides:

Sec. 12 (1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his
own choice. If the person cannot afford the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be
used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention
are prohibited.

(3) Any confession or admission obtained in violation of this or the preceding section shall be
inadmissible in evidence against him.

The right to counsel attaches upon the start of an investigation, i.e. when the investigating officer starts to ask
questions to elicit information and/or confessions or admissions from the respondent/accused. At such point or
stage, the person being interrogated must be assisted by counsel to avoid the pernicious practice of extorting false
or coerced admissions or confessions from the lips of the person undergoing interrogation, for the commission of an
offense.

Any person under investigation must, among other things, be assisted by counsel. The above-cited provisions of the
Constitution are clear. They leave no room for equivocation. Accordingly, in several cases, this Court has
consistently held that no custodial investigation shall be conducted unless it be in the presence of counsel, engaged
by the person arrested, or by any person in his behalf, or appointed by the court upon petition either of the detainee
himself, or by anyone in his behalf, and that, while the right may be waived, the waiver shall not be valid unless
made in writing and in the presence of counsel. 5

As aptly observed, however, by the Solicitor General, the police line-up (at least, in this case) was not part of the
custodial inquest, hence, petitioner was not yet entitled, at such stage, to counsel. The Solicitor General states:

When petitioner was Identified by the complainant at the police line-up, he had not been held yet to
answer for a criminal offense. The police line-up is not a part of the custodial inquest, hence, he was
not yet entitled to counsel. Thus, it was held that when the process had not yet shifted from the
investigatory to the accusatory as when police investigation does not elicit a confession the accused
may not yet avail of the services of his lawyer (Escobedo v. Illinois of the United States Federal
Supreme Court, 378 US 478, 1964). Since petitioner in the course of his Identification in the police line-
up had not yet been held to answer for a criminal offense, he was, therefore, not deprived of his right to
be assisted by counsel because the accusatory process had not yet set in. The police could not have
violated petitioner's right to counsel and due process as the confrontation between the State and him
had not begun. In fact, when he was Identified in the police line-up by complainant he did not give any
statement to the police. He was, therefore, not interrogated at all as he was not facing a criminal
charge. Far from what he professes, the police did not, at that stage, exact a confession to be used
against him. For it was not he but the complainant who was being investigated at that time. He "was
ordered to sit down in front of the complainant while the latter was being investigated" (par. 3.03,
Petition). Petitioner's right to counsel had not accrued. 6

Even under the constitutional guarantees obtaining in the United States, petitioner would have no cause for claiming
a violation of his rights to counsel and due process. In Kirby vs. Illinois, 7 the facts of the case and the votes of the
Justices therein are summarized as fellows:

After arresting the petitioner and a companion and bringing them to a police station, police officers
learned that certain items found in their possession had been stolen in a recent robbery. The robbery
victim was brought to the police station and immediately Identified the petitioner and his companion as
the robbers. No attorney was present when the Identification was made, and neither the petitioner nor
his companion had asked for legal assistance or had been advised of any right to the presence of
counsel. Several weeks later, the petitioner and his companion were indicted for the robbery. At trial in
an Illinois state court, the robbery victim testified that he had seen the petitioner and his companion at
the police station, and he pointed them out in the courtroom and Identified them as the robbers. The
petitioner and his companion were convicted, and the Illinois Appellate Court, First District, affirmed the
petitioner's conviction, holding that the constitutional rule requiring the exclusion of evidence derived
from out-of-court Identification procedures conducted in the absence of counsel did not apply to pre-
indictment Identifications (121 III App 2d 323, 257 NEE 2d 589).

On certiorari, the United States Supreme Court, although not agreeing on an opinion, affirmed. In an
opinion by STEWART, J., announcing the judgment of the court and expressing the view of four
members of the court, it was held that the constitutional right to counsel did not attach until judicial
criminal proceedings were initiated, and that the exclusionary rule relating to out-of-court Identifications
in the absence of counsel did not apply to Identification testimony based upon a police station show-up
which took place before the accused had been indicted or otherwise formally charged with any criminal
offense.

BURGER, Ch. J., concurring, joined in the plurality opinion and expressed his agreement that the right
to counsel did not attach until criminal charges were formally made against an accused.

POWELL, J., concurred in the result on the ground that the exclusionary rule should not be extended.

BRENNAN J., joined by DOUGHLAS and MARSHALL, JJ., dissented on the grounds that although
Supreme Court decisions establishing the exclusionary rule happened to involve post-indictment
Identifications, the rationale behind the rule was equally applicable to the present case.

WHITE, J., dissented on the grounds that Supreme Court decisions establishing the exclusionary rule
governed the present case. 8

Mr. Justice Stewart, expressing his view and that of three other members 9 of the Court, said:

In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v.
Alabama, 287 US 45, 77 L Ed 158, 53 S Ct 55, 84 ALR 527, it has been firmly established that a
person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that
adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson
v. Zerbst, 304 US 458, 82 L Ed 1461, 58 S Ct 1019, 146 ALR 357; Hamilton v. Alabama, 368 US 52, 7
L Ed 2d 114, 82 S Ct 157; Gideon v. Wainwright, 372 US 335, 9 L Ed 2d 799, 83 S Ct 792, 93 ALR 2d
733; White v. Maryland, 373 US 59, 10 L Ed 2d 193, 83 S Ct 1050; Messiah v. United States, 377 US
201, 12 L Ed 246, 84 S Ct 1199; United States v. Wade, 388 US 218, 18 L Ed 2d 1149, 87 S Ct 1926;
Gilbert v. California, 388 US 263, 18 L Ed 2d 1178, 87 S Ct 1951; Coleman v. Alabama, 399 US 1, 26 L
Ed 2d 387, 90 S Ct. 1999.

This is not to say that a defendant in a crimin