By: Philip Sigfrid A. Fortun


Late last week, a frantic call was placed by an Australian lady asking for assistance for employees of a company whose staff were placed under arrest by Philippine authorities and may be subject of illegal detention. Not knowing where the referral came from or how she knew about our Firm, we skipped the formalities and I authorized 3 associates to proceed to the offices of the distraught caller.

Quick Reaction

It was 7:00 p.m. on a weekday and traffic was heavy while our staff was winding-down the day’s activity to journey home. After giving a quick briefing to the lead associate of the 3-man team, they repaired to the site and spoke with the police officers who gave them a low-down of the charges. As our lawyers know not to interfere or provoke law enforcers while they are performing their functions to ensure the rights of individuals under custodial investigation are respected so they politely asked for papers relating to the accusations. My associates then spoke to the terrified staff and gave counsel about the rights of an accused and on what to expect and what will happen next. Thankfully, the arrested individuals were released in no time on RFI, a result that will be explained below.

This was not the first time that sudden arrests were made to some people who the Firm assists or who had been referred by existing clients. Charges range from offenses under special laws and for violations of the Revised Penal Code where the penalty would range from 6 to 18 years imprisonment. These then are bailable offenses and should enable the person arrested to regular preliminary investigation, and to post bail for his or her provisional liberty.

What then are the rights of a person subjected to arrest or detention (restriction of movement) by Philippine law enforcers?

Innocent Until Proven Otherwise

Under the Constitution, a presumption exists that a person is innocent until proven guilty before a court with authority to pass judgment on the offense to which one stands charged. A person is also entitled to be informed of his rights when subjected to arrest. These are (1) the right to remain silent, (2) anything he says or does may be used against him, hence, he should be careful in doing anything that aggravates the charge, (3) the right to counsel of the arrested person’s choice, and (4) if he has no counsel to assist him, one can be given him so that he is apprised of what he can or cannot do.

Counsel of Choice

Note that if an arrested individual does not know any lawyer or the police themselves cannot provide him with one, he is entitled to call a relative or some elder responsible person to assist him in the task of responding to questions that the police may ask him regarding the incident subject of his arrest. One then should never be alone or subjected to isolation such that he breaks down and answers questions which he does not intend to respond to or the answer to which are not entirely true but rather damaging to his position.


Within a fixed number of hours, the arrestee should be brought by the law enforcers to a prosecutor who will conduct a process called “inquest”. It is an investigation to determine whether on the basis of the facts at hand that relate to the incident, there is enough evidence to detain the arrestee, or, inadequate as would justify his “release for further investigation” or RFI. If the latter, the person arrested is free to leave but will have to submit to preliminary investigation before another assigned prosecutor called an investigating prosecutor, a process where he is allowed to present his side about the incident through a counter-affidavit usually done for him by counsel of his choice. This process is again safeguarded in our Constitution because preliminary investigation is part of a citizen’s right to be heard when asked to explain his side, a right which is called “due process of law”.

Should the inquest prosecutor find basis for his continued detention, the person arrested should obtain a certificate therefor from the same prosecutor to enable him to post bail through an application with the court with whom the case is filed. He also can ask for regular preliminary investigation within 5-days from the time he receives or is advised about the issuance of an inquest resolution by the inquest prosecutor. He then can use that open window as justification for his release on bail as he continues to be covered by the constitutional presumption of innocence. Again, a bail petition can be filed on that basis before the court hearing the case filed against him.

Situational Awareness

What is indispensable for an individual when subjected to an arrest is to keep calm, be alert about what is going on, be focused in ensuring he is not made to suffer more than what the facts or evidence are that had been made available to the law enforcement officers at the time of his arrest, take notes and a timeline of events as they occur, and get a seasoned criminal lawyer who knows his stuff.

Experienced Counsel

One needs to understand that arrest and police custodial investigation are the starting point of any criminal indictment and should thus be attended to by one who understands and knows the ins-and-out of court room processes and evidence presentation. Only lawyers who are exposed to these critical situations on a fairly regular basis can effectively prevent an arrested person from being the patsy or “scape goat” of an incident, or expose the arrestee to a situation more dire and complicated than what the evidence discloses when the incident happened.

FNS litigation lawyers handle incidents of this nature every week of the month, and their skills in litigation work are honed by daily attendance in courtroom practice (both before trial or single-judge courts, and collegiate or multiple-judge courts) resulting in excellent results beyond their client’s expectations.

(Founding Partner Sig Fortun leads the Litigation and Dispute Resolution practice group of the Firm. Sig has been recognized as one of the Top 100 Lawyers in the Philippines by Asia Business Law Journal in 2018. He may be reached at [email protected].)


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