It is not easy to make out a case of improvident exercise of authority on the part of a lower court when the assailed actuation was clearly inspired by a desire to adhere to the literal and explicit mandate of the Constitution. That is the difficulty confronting the prosecution when it filed this certiorari proceeding resulting from respondent Judge Eduardo P. Caguioa sustaining the objection of the defense to questions asked a witness based on an alleged extrajudicial admission by an accused, private respondent Paquito Yupo, during a police interrogation conducted on July 18, 1973, without his having been assisted by counsel. There was, in the opinion of respondent Judge, a clear failure to abide by the express prohibition in the fundamental law against the admissibility of any confession obtained from a person under investigation without his having been informed of his right to keep silent and to have the benefit of counsel.^[1] Clearly then, the leading case of Magtoto v. Manguera^[2] does not apply, the interrogation having taken place six months after the effectivity of the present Constitution. The prosecution would deny its applicability, contending that there was a waiver. Respondent Judge was of the view that this innovation in the Constitution, intended to buttress and fortify the right against self-incrimination, was not susceptible of waiver. When he remained firm in his stand, the petition was filed, a grave abuse of discretion being imputed to him.

According to the petition, the Provincial Fiscal of Bulacan filed on September 14, 1973, in the Court of First Instance of Bulacan, an information for murder against Paquito Yupo y Gonzales, which was docketed as Criminal Case No. 146-V-73, with the case, after the raffle, being assigned to Branch VIII, presided by respondent Judge.^[3] Upon arraignment on October 5, 1973, the accused pleaded not guilty.^[4] The trial of the case then proceeded, the prosecution having presented six witnesses, including the father of the deceased, Miguel Tribol, and his common-law wife, Lydia Begnotia, who allegedly received the ante mortem statement of the victim, Rodolfo Tribol.^[5] Then, at the hearing on June 3, 1974, the prosecution presented Corporal Conrado Roca of the Meycauayan Police Department, before whom a written statement of the accused Paquito Yupo and his alleged waiver of his right to remain silent and to be assisted by a counsel of his own choice was taken.^[6] After this witness had identified the statement of the accused and the waiver, he was questioned on the incriminating answers in such statement to the police, but there was an objection on the part of the defense counsel based on the ground of such statement being inadmissible in evidence, as the statement was taken by the police without any counsel assisting the accused in the investigation.^[7] Respondent Judge sustained the objection of the defense on the view that such judicial confession of the accused is inadmissible in evidence for being unconstitutional, it appearing that the accused was not assisted by a counsel when it was given.^[8] He likewise stated that such right could not be waived.^[9] Upon his refusal to reconsider such ruling, this petition was filed.

Certiorari does not lie. The petition must be dismissed. It was not shown that the alleged waiver was given freely and voluntarily. The questioning was rather perfunctory. An even more telling circumstance against such alleged waiver being given credence was that private respondent, a native of Samar, then nineteen years old, was interrogated extensively in Tagalog, no showing having been made that his acquaintance with the language was such that he could fully understand the import of what was asked him. On the specific question of whether or not the right to counsel during custodial interrogation may be waived, the Court rules that there is no bar to such a waiver if made intelligently and voluntarily, with full understanding of its consequences.

1. As far back as Abriol v. Homeres,^[10] a 1949 decision, decided under the 1935 Constitution, which did not contain a provision similar to Section 20 which adopted the Miranda doctrine, this Court, through Justice Ozaeta, relying on the leading American case of Johnson v. Zerbst,^[11] made clear that while there could be a waiver of the rights of an accused, it must be intelligently waived, otherwise a court's jurisdiction starting at the beginning of the trial may be lost in the course of the proceeding.^[12] The landmark opinion of Miranda v. Arizona,^[13] decided in 1966, as noted above, the source of this constitutional provision, emphasized that statements made during the period of custodial interrogation to be admissible require a clear intelligent waiver of constitutional rights, the suspect being warned prior to questioning that he has a right to remain silent, that any utterance may be used against him, and that he has the right to the presence of a counsel, either retained or appointed. In the language of Chief Justice Warren: "Our holding will be spelled out with some specificity in the pages which follow, but briefly stated, it is this: 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. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of those rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned."^[14]
   
   
2. Tested by such a clear and unequivocal standard, the alleged waiver falls far short. It is clearly inadmissible. There was a perfunctory opening statement asked by a certain Corporal Conrado B. Roca of the Police Force of Meycauayan, worded thus: "Ipinaaalam ko sa iyo na ikaw ay sinisiyasat tungkol sa isang paglabag sa batas na iyong ginawa, bago ko ipagpatuloy ang pagtatanong sa iyo, ikaw ay may karapatan na huwag magsalita kung ayaw mo at may karapatan ka rin na magkaroon ng abogado na iyong gusto, at dapat mo ring mabatid na anuman ang sabihin mo dito ay maaaring gamitin ng ayon o laban sa iyo, magsasalaysay ka pa rin ba?"^[15] Then came the monosyllabic answer Opo. That was all. Even the very annex submitted to the petition merely stated that there were signatures of private respondent Yupo, the aforesaid Roca, and a certain Roberto Sales. The day when it was subscribed and sworn to, allegedly before Municipal Judge Mariano Mendieta, was not even specified. Again, there was a statement that it was a certified true copy by a certain Teresita M. Tecson, whose connection with the case or with the court was not even shown. There was no signature. There were only illegible letters, perhaps indicating that they were the initials. The doubt that must have occurred to the police officials of Meycauayan is evident from their submitting a one-page statement, presumably signed by the same people and certified by the same Tecson, reading in full as follows: "[Sa sinumang Kinauukulan]: Ipinabasa, ipinaalam at naintindihan ni [Paquito Yupo y Gonzales], 19 na taong gulang, binata tubo sa San Policarpio, Eastern Samar ang nasa ibaba nito: '[Ikaw ay sinisiyasat ngayon dahilan sa paglabag sa batas. Karapatan mo ang huwag magsalita. Anumang iyong sasabihin ay maaring gamiting katibayan laban sa iyo. At ikaw ay may karapatan sa tulong at sa pagharap ng abogado na iyong napipisil].' Sa kabila ng kabatiran ni [Paquito Yupo] ng mga nilalaman ng nasa itaas nito, siya ay nagbigay pa rin ng salaysay."^[16] Could it be their way of trying to impress on a court the fact that there was an intelligent waiver? If so, it did not cure the fatal infirmity. Rather the contrary.
   
   
3. People v. Bacong^[17] stands as a warning against imputing to an accused an understanding of the proceeding when the language used is one with which he is not familiar. The point at issue was whether there was an improvident plea of guilt. It was stressed in the brief filed on behalf of the accused that he " 'is an ignorant and illiterate person, a neophyte in the national penitentiary, and one fully conversant [only] with his native Visayan. This is apparent from his statement thus: "26. T. Marunong ka bang bumasa at sumulat ng wikang tagalog? S. Naka-uunawa po ako sir, pero hindi po ako masyadong marunong, ang tangi ko pong naiisulat ay ang aking pangalan." * * * An observation and closer look [at] his signature indeed reveals that the accused is an illiterate and unschooled person. The strokes of his signature are irregular, halting, and show a difficult and laborious effort to write the letters of his name. * * * In his signature on file with this Honorable Court, the same observations can be made. * * * Admittedly, the accused is a Visayan and still a neophyte in the national penitentiary who does not understand well Tagalog. * * * We cannot expect the accused to have fully understood the legal signification of these qualifying circumstances, which allegations had been the subject of various interpretations of our courts. * * *. ' "^[18] As a matter of fact, in that case, Solicitor General Estelito P. Mendoza, in lieu of appellant's brief, filed a manifestation admitting that there was an improvident plea of guilt and that judgment should be set aside. In that case, there was an effort to ascertain whether the accused could read and write in Tagalog. In this case, the private respondent, a Visayan, was asked a kilometric question in Tagalog, and the interrogator was satisfied with the monosyllabic Opo. Also, the failure to submit to this Court the alleged signature of private respondent may be indicative of the fear on the part of counsel for petitioner that the absence of education of the nineteen-year old private respondent would be apparent. At any rate, it cannot be denied that to predicate a waiver under the circumstances disclosed would be to nullify the plain command of the constitutional provision requiring that a confession to be admissible must be given only if the accused were informed of his right to remain silent and to counsel; otherwise, it is "inadmissible in character." The lower court, therefore, acted in accordance with the plain dictate of the Constitution. To quote from that eminent civil libertarian, Justice Douglas: "Formulas of respect for constitutional safeguards cannot prevail over the facts of life which contradict them. They may not become a cloak for inquisitorial practices and make an empty form of [constitutional rights]."^[19]
   

WHEREFORE, the petition for certiorari is dismissed. The trial of the case is ordered to be resumed forthwith. No costs.

Makasiar, Concepcion, Jr., Santos, Fernandez, Guerrero, Abad Santos, De Castro, and Melencio-Herrera, JJ., concur.
Barredo, J., concurs in a separate opinion.
Teehankee, J., in the result.
Antonio, J., concurs with J. Aquino.
Aquino, J., see attached dissent.

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^[1] According to Article IV, Section 20 of the Constitution: "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."

^[2] L-37201-02, March 3, 1975, 63 SCRA 4.

^[3] Petition, pars. 2 and 3.

^[4] Ibid, par. 3.

^[5] Ibid, par. 4.

^[6] Ibid, par. 5.

^[7] Ibid, par. 6. The statement is attached as Annex B to the petition, and the alleged waiver, as Annex C.

^[8] Ibid, par. 7.

^[9] Ibid.

^[10] 84 Phil. 525.

^[11] 304 US 458.

^[12] 84 Phil. 525, 531.

^[13] 384 US 436.

^[14] Ibid, 444-445.

^[15] Annex B of Petition, 1.

^[16] Annex C of Petition.

^[17] L-36161, December 19, 1973, 54 SCRA 288.

^[18] Ibid, 290-291.

^[19] Haley v. State of Ohio, 332 US 596, 601 (1948).

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