What is the right against self-incrimination?

Every celebrated witness in a Senate or House of Representatives “investigative” hearing, when faced with a difficult question to answer, utilizes a ploy often used in the organized crime hearings of the U.S.: “I invoke my right against self-incrimination.”

Oh, wait, they're just scenes from “The Godfather: Part 2.”
 

Seriously, what exactly is the right that these senators are tired of hearing about? (Yeah, but wait until they are actual witnesses.) 

 

Under Section 17 of Article III of the 1987 Constitution, “No person shall be compelled to be a witness against himself.” It does not exactly say “right against self-incrimination.” Also, under the Rules of Criminal Procedure, particularly Rule 115, Section 1 [e], an accused at TRIAL is exempt from being compelled to be a witness against himself. 

 

Again, no phrase involving the words “self-incrimination.” Lastly, and more importantly, under the Senate section (Article VI, The Legislative Department) of the Constitution, if there is an inquiry in the aid of “legislation”, the rights of persons appearing in, or affected by, such inquiries shall be respected (Section 21).

That means all RIGHTS, constitutional or otherwise.

 

Ironically, the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides the actual words verbatim. Under Section 19, the right against self-incrimination shall be allowed only when a question which tends to elicit an answer that will incriminate is propounded. Reading the section fully, the senators can determine whether the right was properly invoked. And this is by majority vote of the committees’ members if there is a quorum present. 

 

Is this legalese? Simply put, if a witness invokes the right, the right can be rejected if there is a majority vote of the members present and ONLY if the members present form a quorum of the whole committee. So, if there is a committee hearing with only one (1) senator present, any right of against self-incrimination cannot be questioned.

 

So, we have three rules allowing for this right to be used. Although I mentioned four, one is just reserved for criminal trials. Although, being in a Senate hearing can make one feel like being in a criminal trial.

 

Is this right abused?

 

First, the constitutional right is not limitless. But neither is it specific. Meaning, the limit for the invocation of this constitutional right can be at any form of inquiry by a government body. Cases in the Supreme Court have ruled that this right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It is only when a particular question is addressed to which may incriminate himself for some offense that he may refuse to answer on the strength of the constitutional guaranty (People v. Ayson, G.R. No. 85215, 7 July 1989, 175 SCRA 216, 226-227). Again, by being non-specific, it can be used during televised Senate hearings.

 

Consequently, the Senate itself respects and allows the right to be [ab]used. Only a majority vote of a committee that has a quorum can reject the right. If both the Constitution and the Senate Rules allow for this right to be available, why should one be punished (or ridiculed) if it is overused? 

 

What is not mentioned by complaining legislators and frustrated opinion-giving newscasters is the right not to be compelled to witness against himself or its synonym: right against self-incrimination is a subjective choice by the witness. If a witness feels the answer to the question (even if a denial) will lead into criminal charges, the right can be invoked. 

 

In addition, what really makes anything incriminating is the oath before any questioning. What is the effect of the oath? Perjury! The oath is not just symbolic. It is a threat that, if you are caught in a lie, you can be charged for giving false testimony under the Revised Penal Code (Article 183). This is the hidden self-incrimination criminal offense.

 

In conclusion, I would like to give the analogy of a fad eating habit: the buffet. Whether it be at the wallet-shrinking Spiral Restaurant or the birthday-singing Sambo Kojin, if there is bottomless tempura, should that same food establishment limit the number of shrimp one can eat? If both the Constitution and the Rules of the Senate allow the buffet privilege of self-incrimination, you can’t raise the price mid-stream.

 

The only way to change those rules is by constitutional amendment. – KDM, GMA News

 

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Atty. Rod Vera is a managing partner of the Vera and Associates law firm. This piece originally appeared on the Manila Speak blog. We are re-posting it here with the author's permission.