VOL.

57, JUNE 28, 1974 481

The Right To Counsel

ANNOTATION

THE RIGHT TO COUNSEL

By
Atty. POMPEYO R.
J. CABRILLAS

§ 1. Concept and Basis, p. 481.

§ 2. Scope of the Right, p. 482.
§ 3. The Right is Indispensable, p. 482.
§ 4. The Right is Waivable, p. 483.
§ 5. Denial of Right and to be Informed of Such
Right Should be Raised in the Trial Court, p.
483.
§ 6. Denial of Right if Properly Presented in Trial
Court May Be Remedied by Appeal, p. 483.
§ 7. In Certain Cases, Lawyers Refusal Cannot Be
Used as a Defense, p. 484.
§ 8. Appointment of Counsel de oficio, p. 484.
§ 9. Compensation for Attorneys de oficio, p. 486.
§ 10. Time for Counsel de oficio to Prepare for
Arraignment or Trial, p. 486.
§ 11. Care by Counsel de oficio, p. 486.
§ 12. Care by the Courts, p. 486.
§ 13. Ignorance by Accused Without Counsel May
Result in his Conviction, p. 487.
§ 14. Lawyer Cannot Refuse, p. 487.
§ 15. But Frequent Appointment of Same Lawyer
as Counsel de oficio, Not Ideal, p. 487.
§ 16. Conclusion, p. 488.

__________________

§ 1. Concept and Basis

If the defendant appears without attorney, he must be
informed by the court that it is his right to have attorney
before being arraigned, and must be asked if he desires the
aid of attorney. If he desires and is unable to employ
attorney, the court must assign attorney. de oficio to defend
him. A reasonable time must be allowed for procuring
attorney. (Sec. 3, Rule 116, Revised Rules of Court).
The constitutional basis of this.right is found in Sec. 19,
Article IV of the New Constitution, which in full states
that:

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'ln all criminal prosecutions, the accused shall be presumed

innocent until the contrary is proved, and shall enjoy the
right to be heard by himself and counsel, to be informed of
the nature and cause of the accusation against him, to have
a speedy, impartial, and public trial, to meet the witnesses
face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in
his behalf. However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided. that
he has been duly notified and his failure to appear is
unjustified." (Italics supplied.)
It is a necessary implication that to forestall a failure of
justice and a denial of due process, a lawyer be present to
assure that the rights of an accused under the Bill of
Rights and the Rules of Court, be asserted and
safeguarded.

§ 2. Scope of the Right

In criminal cases there can be no fair hearing unless the

accused be given an opportunity to be heard by counsel.
Even the most intelligent or educated man may have no
skill in the science of law, particularly in the rules of
procedure, and, without counsel, he may be convicted not
because he is guilty but because he does not know how to
establish his innocence. And this can happen more easily to
persons who are ignorant or uneducated. It is for this
reason that the right to be assisted by counsel is deemed so
important that it has become a constitutional right and it is
so implemented that under our rules of procedure it is not
enough for the Court to apprise an accused of his right to
have an attorney, it is not enough to ask him whether he
desires the aid of an attorney, but it is essential that the
court should assign one de oficio for him if he so desires
and he is poor or grant him a reasonable time to procure an
attorney of his own. (People vs. Holgado, 85 Phil. 752, cited
in Political Law of the Philippines, Tañada and Carreon,
Vol II, First Edition, p. 269.)

§ 3. The Right is Indispensable

The right to counsel is an indispensable right of the

accused, especially if considered in the light of the
complexities of modern trial which can confuse a client, and
the inexhaustible bulk of statutes and judicial precedents
which even if read by the intelligent layman would still not
prepare him for the rigors of trial. A lawyer, schooled by
years of study and aged

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by court experiences must be appointed.

§ 4. The Right is Waivable

The right to counsel may be waived, as when, upon being

informed of such right and asked by the court if he desired
the aid of one, the accused replied that he did not, and to
the further question whether he was willing to have the
information read to him without the assistance of counsel,
he said "yes", and the information having been translated
to him in the local dialect, he pleaded guilty, and upon
being asked if he knew the consequences, he answered that
he did. (People vs. Sim Ben, 52 O.G. 211, cited in Political
Law of the Philippines, Tañada and Carreon, supra, p. 270,
271.)

§ 5. Denial of Right and to be Informed of such Right

Should be Raised in the Trial Court

The Supreme Court has however, held that the denial of

the right to counsel and to be informed of such right should
be raised in the trial court, otherwise it cannot be raised for
the first time on appeal. (People vs. Nang Kay, L-3565,
April 25, 1951, cited in Political Law of the Philippines,
supra.)
This harsh technicality ignores the fact that the
Constitution gives an accused the right to be represented
by counsel precisely in order that he can be properly
advised on his legal and constitutional rights, lest he be
condemned "not because he is guilty but because he does
not know how to establish his innocence." (Opinion of
Tañada and Carreon, Ibid, citing People vs. Holgado,
supra.)

§ 6. Denial of Right If Properly Presented in Trial

Court may be Remedied by Appeal

Denial or disregard by the trial court of the right of the

accused to be represented by counsel, and failure to inform
him of such right, or to assign to him a counsel de oficio if
he so desires, constitutes reversible error which can be
remedied by appeal (U.S. vs. Palisoc, 4 Phil. 207; People vs.
Holgado, supra, Ibid.), and perhaps by habeas corpus also.
(Abriol vs. Homeres, 84 Phil. 825, lbid.)
However, unless the contrary affirmatively appears in
the record, it will be presumed that the court performed its
duty and properly informed the accused of his
constitutional right to counsel Amar vs. Moscoso, 52 O.G.
206, Ibid.), a presumption which does not seem justified in
the case at least of courts of record, because it should also
be presumed that the court
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officers in charge of making up the record would make it

appear in the record that the court informed the accused of
his right to counsel, if such were the fact. Moreover,
whether an accused had been accorded a right so
indispensable for his protection, should not be rested on
mere presumptions. (Opinion of Tañada and Carreon, Ibid.,
Supra.)

§ 7. In certain cases, Lawyers Refusal cannot be used

as a Defense

Although the attorney de oficio appointed by the court

expressed reluctance to accept the assignment and even
stated that his personal opinion is against the accused, the
latter cannot be said to have been deprived of his right to
representation by counsel where the attorney de oficio
actually undertook and proceeded with the defense and
duly performed his duties. (People vs. Moreno, 77 Phil. 548;
People vs. Prieto, 80 Phil. 138.)
Neither can the accused claim to have been deprived of
such right where he was originally represented by counsel
of his choice who appeared for him in connection with
various motions to postpone and to dismiss, and other
incidents, until the court finally announced that it would
grant no further postponements and warned that failure to
appear next time would be deemed waiver of right to
present evidence for the defendant, and entered judgment
against him when his original counsel failed to show up at
the next hearing. (People vs. Angco, 54 O.G. 5702.)

§ 8. Appointment of Counsel de oficio

A court may assign an attorney to render professional aid

free of charge to any party in a case, if upon investigation it
appears that the party is destitute and unable to employ an
attorney, and that the services of counsel are necessary to
secure the ends of justice and to protect the rights of the
party. It shall be the duty of the attorney so assigned to
render the required service, unless he is excused therefrom
by the court for sufficient cause shown. (Sec. 32, Rule 138,
New Rules of Court.)
The attorney so employed or assigned must be a duly
authorized member of the bar. The court, considering the
gravity of the offense and the difficulty of the questions
that may arise, shall appoint as counsel de oficio only such
members of the bar as by reason of their experience and
ability may, in the court's opinion, adequately defend the
accused. But' in
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localities where duly authorized members of the bar are not

available the municipal court may in its discretion, admit
or assign a person, resident in the province and of good
repute for probity and ability, to aid the defendant in his
defense, although the person so admitted or assigned be
not a duly authorized member of the bar. (Sec. 4, Rule 116,
Revised Rules of Court.)

§ 9. Compensation for Attorneys de oficio

Subject to the availability of funds as may be provided by

law the court may, in its discretion, order an attorney
employed as counsel de oficio to be compensated in such
sum as the court may fix. Whenever such compensation is
allowed, it shall not be less than thirty pesos (P30) in any
case, nor more than the following amounts: Fifty pesos
(P50) in light felonies; One hundred pesos (P100) in less
grave felonies; Two hundred pesos (P200) in grave felonies
other than capital offenses; Five hundred pesos (P500) in
capital offenses. (Sec. 32, Rule 138, supra.)

§ 10. Time for Counsel de oficio to Prepare for

Arraignment or Trial

Whenever an attorney de oficio is employed or assigned by

the court to defend the accused either at the arraignment
or at the trial, he shall be given a reasonable time to
consult with the accused and prepare his defense before
proceeding further in the case, which shall not be less than
two (2) hours in case of arraignment and two (2) days in
case of trial, but the court may, for good cause shown,
shorten or extend the time. (Sec. 5, Ibid.)
Incidentally, since the right to counsel is based or is
included within the protective umbrella of the due process
clause of the Bill of Rights, or, is precisely ancillary to the
due process clause, there being a necessity for a lawyer to
see to it that the requisites thereof are properly complied
with, the above periods should not be strictly imposed on
the accused especially where he is not blessed financially or
mentally. Thus, it has been held by the Supreme Court in
Arnault vs. Pecson, 87 Phil. 427, that where a request by a
defendant charged with crime for a chance to make his
defense is reasonable and made in good faith and not for
delay, it is good policy to veer towards the liberal side
avoiding refinements of argument that may serve only to
hide the substance of the issue. It is even of
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The Right To Counsel
greater importance to cause of justice for courts to deviate
from the stereotyped technical rules of practice and lose a
few hours than to run the risk of depriving accused of the
requisite opportunity to present his side of the controversy.
While the Constitution, and the law of the land do not
specify what this opportunity (due process) is to consist of,
beyond stating that accused shall have not less than two
days to prepare for trial, it is by necessary implication
within the court's sound discretion in exceptional cases to
allow him, besides time, adequate freedom of action, if the
courts are to give form and substance to this guaranty.
(Ibid.)

§ 11. Care by Counsel de oficio

The mere fact that counsel de oficio has an extensive

practice, requiring his appearance in courts in Manila and
environs as well as the provinces of Bulacan and
Pampanga does not lessen that degree of care required of
him in defending an impoverished litigant. (People vs.
Ingco, 42 SCRA 171.)
It is clearly unworthy of membership in the Bar which
requires dedication and zeal in the defense of his client's
rights, a duty even more exacting when one is counsel de
oficio. On such an occasion, the honor and respect to which
the legal profession is entitled demand the strictest
accountability of one called upon to defend an impoverished
litigant. He who fails in his obligation then has manifested
a diminished capacity to be enrolled in its ranks. (Ibid.)

§ 12. Care by the Courts

Trial judges should exercise patience and circumspection in

explaining the meaning of the accusation and the full
import of the plea of guilty to the accused, who should
likewise be granted all the chances to acquaint his counsel
de oficio with his version of the incident and to conduct his
own investigation at the locale of the crime as much as
practicable, more than just examining the records of the
case. (People vs. Simeon, 47 SCRA 129)
The recognition of the discretion possessed by the trial
court to determine whether or not a plea has been
improvidently made notwithstanding, it has been the
constant concern of the Tribunal to require the most
meticulous care on its part. This is to avoid a life being
forfeited even if the circumstances that would militate
against such a conclusion. It is highly desirable that
evidence be taken to erase any doubt as to the degree of
culpability of the accused before a death sentence is
imposed.
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Considering all the awesome consequences that is entailed,

such degree of circumspection is a must. To such an
approach, both defense and the prosecution remain as they
should be, committed. (People vs. Espina, 45 SCRA 614,
cited in People vs. Andaya, 52 SCRA 137)
There is an exigent need that the accused in admitting
the commission of the offense charged does so of his own
free will. Moreover, to make a reality of the constitutional
presumption of innocence, the reception of evidence to
support the allegations of the information and the
aggravating circumstances is indicated more often than
not. (People vs. Andaya, supra.)

§ 13. Ignorance of Accused Without Counsel May

Result In His Conviction

The qualifying and/or aggravating circumstances of

treachery, evident premeditation, recidivism, and use of
superior strength alleged in the information are terms so
technical that laymen, especially unschooled ones, cannot
be expected to apprehend their meaning without the
requisite patient and competent explanations. (People vs.
Duque, 53 SCRA 136-137; People vs. Alamada, 52 SCRA
103.) The Revised Penal Code contains dozens of similar
complex words that are beyond the comprehension of most
accused persons. Without counsel, there is no possibility of
acquittal.

§ 14. Lawyer Cannot Refuse

It has been the frequent excuse by some lawyers to shirk

the responsibility of being appointed a counsel de oficio
that they are not practising lawyers and that for them to
defend an accused would expose the latter to more jeopardy
than if the accused stood for himself. This, of course, as
well as other alibis are not valid. To allow a different rule
would result in the refusal by the lawyers of de oficio cases
with the mere expedient of advancing excuses to the
detriment of pauper litigants.
§ 15. But Frequent Appointment of Same Lawyer as
Counsel de oficio, not Ideal

In People vs. Daeng, 49 SCRA 226, the Supreme Court has

cautioned all courts against the frequent appointment of
the same attorney as counsel de oficio, for two basic
reasons: first, it is unfair to the attorney concerned,
considering the burden of his regular practice that he
should be saddled with too many de

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oficio cases; and, second, the compensation provided for by

section 32 of Rule 138 of the Rules of Court (a fixed fee of
P500 in capital offense) might be considered by some
lawyers as a regular source of income, something which the
Rule does not envision. In every case, the accused stands to
suffer because the overburdened counsel would have too
little time to spare for his de oficio cases, and also would be
inordinately eager to finish such cases in order to collect
his fees within the earliest possible time.

§ 16. Conclusion

By specific authority, the court may assign an attorney to

render professional aid to a destitute appellant in a
criminal case who is unable to employ an attorney.
Correspondingly, a duty is imposed upon the lawyer so
assigned "to render the required service." A lawyer so
appointed "as counsel for an indigent prisoner," our Canons
of Professional Ethics demand, "should always exert his
best efforts" in the indigent's behalf. (People vs. Estebia, 27
SCRA 106.)
It is true that he is a court-appointed counsel. But we do
say that as such counsel de oficio, he has as high a duty to
the accused as one employed and paid by defendant
himself. Because, as in the case of the latter, he must
exercise his best efforts and professional ability in behalf of
the person assigned to his care. His is to render effective
assistance. The accused defendant expects of him due
diligence, not mere perfunctory representation. We do not
accept the paradox that responsiblity is less where the
defended party is poor. It has been said that courts should
 "have no hesitance in demanding high standards of duty of
attorneys appointed to defend indigent persons charged
with crime" (State vs. Delany, 351 P 2d 85, 90). Delany, .
For, indeed, a lawyer who is a vanguard in the bastion of
justice is expected to have a bigger dose of social conscience
and a little less of self-interest. Because of this, a lawyer
should remain ever conscious of his duties to the indigent
he defends (Id., pp. 109-110.)
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