thesis - latest version.pdf

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STATES RIGHT TO ASSET RECOVERY VERSUS

STATE WITNESS IMMUNITY:CHALLENGING THE IMMUNITY GRANTED TO THE STATE WITNESS

UNDER REPUBLIC ACT 6981 IN LIGHT OF

THE PRIORITY DEVELOPMENT ASSISTANCE FUND SCAM

A Thesis Presented to the

School of Law

Ateneo de Manila University

In partial fulfillment of the requirements for the

Degree of Juris Doctor

JAYPEE B. ORTIZ

10 NOVEMBER 2014


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ABSTRACT

10 Billion Pesos- This is said to be the amount of public funds diverted for the personal gain ofkey political leaders in the country through the alleged machinations of Janet Napoles, the

person accused as the mastermind in the Pork-barrel Fund scam. Identified as the mother of all

scams, it is arguably among the most scandalous of political controversies that aroused publicindignation in the Philippines most recent history. Public demand for investigation and

prosecution of the individuals responsible for defrauding the government and its people has not

waned since the scam was first exposed in 2013.

Either to escape criminal liability or to do service to the country, several individuals have

expressed interest to act as witnesses for the government in the prosecution of personsimplicated in the PDAF scam. There are two ways by which a person who has committed an

offense may escape criminal liability. The first is provided by Section 17 of Rule 119 of the

Revised Rules of Criminal Procedure, where the accused is discharged from the information sothat he may be used as a state witness. The second is for such persons to seek admission into the

Witness Protection, Security, and Benefits Program established by Republic Act 6981.

In light of the PDAF scam, a debate has surfaced as to whether the State can compel the return

of whatever kickbacks or incentives the state witness received for his participation in the offense.

While the proponent believes that the State must recover such kickbacks or incentives, he submitsthat the immunity granted by R.A. 6981 undermines the States right to asset recovery. It is in

this light that this thesis seeks an examination of the statutory grant of immunity under R.A.

6981, using as guide the developments in U.S. jurisprudence regarding immunity legislation,which are designed to allow the government to compel testimony from individuals despite the

persons right against self-incrimination. Three types of immunity legislations have developed:

simple use immunity provides that the compelled testimony of the witness cannot be used

against him in a subsequent criminal trial; transactional immunity provides that the witness

cannot be prosecuted for any crime about which he testified while under a grant of immunity;and use and derivative use immunity provides that the compelled testimony and any evidence

derived from that testimony may not be used against him in a subsequent prosecution.

This thesis submits that R.A. 6981 grants transactional and unqualified immunity to persons

admitted into the program. Despite the fact that transactional immunity is heavily criticized forbeing overly broad and unnecessary, R.A. 6981 seems to extend further the scope of immunity to

exempt the state witness from being subjected to any penalty and forfeiture. The wording of the

law is ambiguous in not qualifying the kind of forfeiture contemplated by it. This allows the statewitness to unjustly enrich himself by keeping part of the loot that he or she received for his

participation in the unlawful transaction. Clearly, this contravenes the constitutionally

recognized right of the State to recover its properties that are unlawfully acquired by its agents.

This thesis seeks to propose an amendment of R.A. 6981 in order to correct the ambiguity found

in the law. In particular, there is an imperative need to qualify the exemption from forfeiturecontemplated by R.A. 6981. Furthermore, other amendments are necessary to promote the

States right to recover its properties such as including the surrender of ill-gotten wealth as part

of the requirements for admission into the program.


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TABLE OF CONTENTS

CHAPTER ONE: INTRODUCTION ......................................................................................... 1

A. Background of the Study ..................................................................................................... 1

B. Objectives of the Study ........................................................................................................ 8

C. Significance of the Study ..................................................................................................... 9D. Statement of the Problem .................................................................................................. 10

E. Scope and Limitations of the Study .................................................................................. 12

F. Methodology ........................................................................................................................ 12

F. Organization of the Thesis ................................................................................................. 13

CHAPTER 2: THE STATE WITNESS UNDER THE RULES OF COURT VS. THE

PROTECTED WITNESS UNDER R.A. 6981 ......................................................................... 14

A. The Historical Development of the Rule on Discharging the Accused to be used as

state witness in the Philippines .............................................................................................. 14

B. Discharging An Accused Under The Rules Of Court ..................................................... 17

C. Precursors To The R.A. 6981: Presidential Decrees 1731 &1732 ................................. 20

D. Witness Protection, Security, and Benefit Act R.A. 6981 (1991) ................................... 23E. Procedure Of Discharging The Accused Under The Rules Of Court ........................... 29

F. Procedure For Admission Into The Program .................................................................. 30

G. Effects of being discharged as a state witness ................................................................. 32

H. Effects of being admitted into the Program .................................................................... 331. Security ............................................................................................................................. 33

2. Economic Support ............................................................................................................. 35

3. Immunity from Prosecution .............................................................................................. 36

CHAPTER THREE: THE INTERPLAY OF A PERSONS RIGHT AGAINST SELF-

INCRIMINATION AND THE GRANT OF IMMUNITY ..................................................... 40

A. The Right Against Self-Incrimination .............................................................................. 40

B. The Rationale Of Granting Immunity ............................................................................. 42C. Types Of Immunity ............................................................................................................ 42

1. Simple Use Immunity: ...................................................................................................... 43

2. Transactional Immunity .................................................................................................... 45

3. Use and Derivative Use Immunity .................................................................................... 48

D. Immunity Legislation In The Philippines ........................................................................ 52

E. Identifying As Transactional The Immunity Granted By R.A. 6981 ............................ 55

CHAPTER 4: CHALLENGING THE IMMUNITY PROVISION OF R.A. 6981 ............... 58

A. Constitutional Challenge to R.A. 6981 ............................................................................. 581. Basis .................................................................................................................................. 58

2. Asset Recovery Through Forfeiture.................................................................................. 62B. Textual Challenge to R.A. 6981......................................................................................... 69

C. The Ambiguity Of R.A. 6981 Constitutes Defective Waiver Of Rights ........................ 70

D. Solution: Legislative Action And Not Merely an Administrative Action ..................... 72

CHAPTER FIVE: CONCLUSIONS AND RECOMMENDATIONS: .................................. 78

Examination Of The Grant Of Immunity Provided By R.A. 6981 .................................... 80

The Unqualified Grant Of Immunity .................................................................................... 82

The Right of the State to Recover its Assets ......................................................................... 85


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The Need to Amend R.A. 6981 ............................................................................................... 86

PROPOSED AMENDMENTS TO R.A. 6981 .......................................................................... 88

BIBLIOGRAPHY


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CHAPTERONE:INTRODUCTION

A.BACKGROUND OF THE STUDY

In 2013, the Philippines had seen one of its most controversial political scandal involving

members of the Congress, other public officials and government agencies, private citizens and

Non-Government Organizations. Identified as the mother of all scams, the Priority

Development Assistance Fund Scam, also known as the PDAF scam or the pork barrel scam,

began after the Philippine Daily Inquirer first made an expos about it on July 12, 2013.1 The

PDAF scam revolved around the alleged misuse by several members of the Congress of their

Priority Development Fund (pork barrel), lump-sum appropriations in the annual General

Appropriations Act to fund the priority development programs and projects of the government.2

Janet Lim- Napoles, a businesswoman, was identified in the six-part expos of the

Philippine Daily Inquirer as the mastermind of the PDAF scam, after Benhur K. Luy, a second

cousin and former personal assistant, was rescued by agents of the National Bureau of

Investigation, after being detained for four months by Napoles at her unit at the Pacific Plaza

Towers in Fort Bonifacio.3

The NBI investigation revealed that Luy was apparently being held by Napoles in order to

preempt him from exposing the PDAF Scam operation being conducted by Napoles through the

JLN Group of companies and fake NGOs.4 For ten years since 2003, it is estimated that the

1

Carvajal, Nancy C. NBI probes P10-B scam. PHIL. DAILY INQ., July 12, 2013, available athttp://newsinfo.inquirer.net/443297/nbi-probes-p10-b-scam (last accessed April 2, 2014).2 Definition provided by the Department of Budget and Management on their website available at

http://pdaf.dbm.gov.ph. (last accessed April 2, 2014).3 Lawas, Hector. NBI pressing abduction quiz. PEOPLES JOURNAL, April 5, 2013 available at

http://www.journal.com.ph/index.php/news/top-stories/68909-sacked-nbi-execs-to-name-moles (last accessed April

2, 2014).4Executive Summary by the NBI on the PDAF complaints filed against Janet Lim-Napoles, et al. available at

http://www.gov.ph/2013/09/16/executive-summary-by-the-nbi-on-the-pdaf-complaints-filed-against-janet-lim-

napoles-et-al/ (last accessed on April, 3, 2014).


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government had been defrauded of some 10 billion pesos,5the amount having been diverted to

Napoles, participating members of the Congress and other government officials.

The scam has provoked public outrage, with calls being made for the immediate

investigation of the matter. At present, several investigations are simultaneously being carried by

the various agencies and departments of the government including the Ombudsman, the Senate

Blue Ribbon Committee, and the Department of Justice.

As the investigations are becoming more extensive, imputing participation of various

officials and employees in the scam, named individuals are coming out and manifesting their

interest to act as state witnesses and testify on the scam and against key political figures in the

country. Whatever their motivations may be for speaking up, either to do justice to the country or

to have themselves excused from criminal liability, it becomes necessary therefore to re-examine

the rules governing state witnesses in view of promoting the public interest of seeking out the

truth and making persons liable for defrauding the government and its people.

The ongoing investigations involving the pork barrel fund scam highlight the political

nature of the countrys WitnessProtection Program. Under present law and jurisprudence, there

are two ways by which a person who has participated in a crime or who has witnessed the

commission of a crime may be given immunity from criminal prosecution. The rules pertaining

to the matter may be found in the Rules of Court and under Republic Act 6981, also known as

Witness Protection, Security and Benefit Act of 1991.

An accused who participated in the commission of an offense may be discharged to be a

state witness pursuant to Section 17, Rule 119 of the Revised Rules of Court. Under this rule to

5 Carvajal, Nancy C.NBI probes P10-B scam. PHIL. DAILY INQ., July 12, 2013, available at

http://newsinfo.inquirer.net/443297/nbi-probes-p10-b-scam (last accessed April 2, 2014).


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be a state witness the accused should have already been charged for a crime in court. A person

then can be discharged as a State witness if the court is satisfied that:

(a)

There is absolute necessityfor the testimony of the accused whose discharge isrequested;

(b) There is no other direct evidence available for the proper prosecution of theoffense committed, except the testimony of said accused;

(c) The testimony of said accused can be substantially corroborated in itsmaterial points;

(d) Said accused does notappear to be the most guilty; and(e)

Said accused has notat any time been convicted of any offense involvingmoralturpitude.

6[emphasis supplied]

Republic Act 6981, otherwise known as Witness Protection, Security, and Benefit

Program Act, provides for an executive act by which the Department of Justice may admit into

its program:

(a) Any person who has knowledge of or information on the commission of a crimeand has testified or is testifying or is willing to testify.

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(b)

A witness in a congressional investigation, upon the recommendation of the

legislative committee where his testimony is needed and with the approval of theSenate President or the Speaker of the House of Representatives, as the case may

be.8

(c)

A witness who participated in the commission of a crime and who desires to

be a State witness. 9(d) An accused who is discharged from an information or criminal complaint by

the court in order that he may be a State witness.10[emphasis supplied]

The enumeration above identifies the types of witnesses who may seek admission into the

program. With respect to state witnesses, note must be had that under R.A. 6981, state witnesses

are not only those who participated in the offense and have been discharged in the information

by the courts but also include those who have not yet been charged in the courts. This, in effect,

62000 Revised Rules of Criminal Procedure rule 119 17.7An Act Providing for a Witness Protection, Security, and Benefit Program and For Other Purposes [Witness

Protection, Security, and Benefit Ac of 1991], Republic Act 6981, 3 (1991)8Id. 4.9Id. 10.10Id. 10.


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expanded the concept of state witness under the Rules of Court, which was limited only to those

who have already been indicted. Suffice it to say that the requirements under the Rules of Court

and R.A. 6981, in so far as state witnesses are concerned, are similar with the exception that in

R.A. 6981, there is an additional requirement that the offense to which the witness [his]

testimony will be used is a grave felony under the Revised Penal Code or its equivalent under

special laws.11

Sec. 18, Rule 119 of the Rules of Court provides that the order discharging an accused as

a state witness "shall amount to an acquittal of the discharged accused and shall be a bar to future

prosecution for the same offense, unless the accused fails or refuses to testify against his co-

accused in accordance with his sworn statement constituting the basis for his discharge."12

On

the other hand, a protected witness under R.A. 6981 may be granted immunity for the crime for

which he is testifying, be granted protection and a safe house, and it would seem, at first blush,

that he may even keep the fruits of the crime. Section 14 of the R.A. 6981 provides:

Section 14. Compelled TestimonyAny Witness admitted into the Programpursuant to Sections 3 and 10 of this act cannot refuse to testify or giveevidence or produce books, documents, records, or writings necessary for the

prosecution of the offense or offenses for which he has been admitted into theProgram on the ground of the constitutional right against self-incrimination

but he shall enjoy immunity from criminal prosecution and cannot be

subjected to any penalty or forfeiture for any transaction, matter or thing

concerning his compelled testimony or books, documents, records, and

writings produced.13[emphasis supplied]

Comparing these two laws would reveal that the Witness Protection, Security and

Benefit Act provides for greater benefits than that accorded to an accused discharged from the

information under the Rules of Court. R.A. 6981 entitles the state witness benefits such as

housing and security, immunity from prosecution, and the right not to be subjected to any

11Id.122000 REVISED RULES OF CRIMINAL PROCEDURE, rule 119 18.13Witness Protection, Security, and Benefit Act, 14.


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penalty or forfeiture of the fruits of the crime.14

These benefits may be argued as one of the

reasons why there had been strong public dissent in the admission of persons as state witnesses

in the investigations involving the PDAF scam. One may argue that being admitted into the

program would exculpate persons who may be equally guilty of an offense and allow them to be

enriched from the illegal transaction because of the exemption from forfeiture granted to them by

R.A. 6981.

The PDAF scam and investigations bring to fore the interplay of the states grant of

immunity of state witnesses and the social cost involved in granting immunity to persons to

entice them to serve as witnesses for the state.

Of particular note is the debate whether the state witnesses once admitted into the

program has the duty to forfeit in favor of the government whatever ill-gotten public funds/

property they may have acquired in view of the illegal transaction that they took part in. While

returning the part of the loot is not mentioned as a prerequisite for one to be qualified as a state

witness under the Rules of Court or to be a protected witness under the R.A.6981, what is clear is

that the state witness once admitted into the Program cannot be subjected to any forfeiture

pursuant to Section 14 of R.A. 6981.

The abovementioned concern highlights several issues which this thesis aims to focus on.

In particular, this thesis submits that the unqualified privilege of being exempted from forfeiture

proceedings is contrary to the states right to recover its unlawfully acquired properties. The

wording of the law is ambiguous and does not provide any qualification as to what type of

forfeiture is contemplated by Section 14 of R.A. 6981. Forfeiture proceedings are of two kinds:

conviction-based and non-conviction based. It is submitted that this distinction is of vital

importance considering the different laws and procedures that are applicable to each. In not

14Id. 8 & 14.


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qualifying the kind of forfeiture proceedings that the state witness cannot be subjected to, R.A.

6981 allows room for misinterpretation and misapplication of the extent of immunity granted to

state witnesses. More importantly, the ambiguity in the law would allow an interpretation that

deprives the State of its constitutional right to recover property that it rightfully owns. The

Constitution is clear and leaves no doubt as to its interpretation, the right of the State to recover

properties unlawfully acquired by public officials or employees, from them or from their

nominees or transferees, shall not be barred by prescription, laches, or estoppel.15

It cannot be argued that the abovementioned right of the State operates for as long as the

property is public in character and such property was unlawfully acquired by the governments

agents in whose hands it was entrusted. It is submitted that R.A. 6981, in granting unqualified

immunity to state witnesses, disregards the importance of the public character of the property

and the public character of the official or employee who unlawfully acquired the same. It is

submitted that properties and assets that forms part of the public fund cannot be treated similarly

with properties belonging to private individuals. In the same way, public officials cannot be

treated similarly with ordinary citizens. In granting too broad of an immunity to state witnesses,

R.A. 6981, as it is worded, seems to divest the government of its right to recover properties that

are public in nature. Consequently, the same provision could also be used as means to evade

criminal liability by erring public officials/employees and/or individuals in conspiracy with the

former and at the same time benefit from the exception from forfeiture, provided they serve as

witnesses for the State. It is undeniable that such a situation contravenes the constitutional

mandate that public office is a public a public trust.16

The Constitution also provides that,

public officers and employees must, at all times, be accountable to the people, serve them with

15PHIL. CONST. art. XI, 15.16PHIL.CONST.art. XI, 1.


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utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead

modest lives.17

R.A. 6981, in not distinguishing the rules between a government official and an

ordinary citizen who is admitted into the Program as a state witness, negates the constitutional

duty given to public officials and employees to be accountable to the people, especially when the

offense involves unlawful use of public funds. Undeniably, ordinary citizens and government

officials/ employees cannot be treated similarly in view of the public duty required of public

officials, a duty not required of ordinary citizens.

The grant of immunity provided by R.A. 6981 may be taken to mean as an implied

waiver of the states right to recover its properties and is a valid exercise of Congress plenary

authority to legislate, it may nevertheless be challenged not only as being an inadvertence on the

part of the Congress but also an invalid waiver for being contrary to public policy.

In assessing the questioned provision in R.A. 6981, reference has to be made also to the

declared policy of the state that it shall maintain honesty and integrity in the public service and

take positive and effective measures against graft and corruption.18

R.A. 6981 needs to be re-

examined whether it is consistent with the declared policy found in the Constitution. An

argument may be forwarded that the benefits granted by R.A. 6981 would allow a subordinate

public officer who had received kickbacks and other incentives from his/her superior public

officer to benefit from the crime committed and go scot-free provided that he later act as state

witness and testify against the superior officer. While he may meet the qualification to be

discharged as state witness for not being the most guilty, he may equally be culpable with the

other accused. It can be argued that R.A. 6981 did not intend to reward participation in criminal

acts.

17PHIL.CONST.art. XI, 1.18PHIL.CONST. art. II, 27.


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B.OBJECTIVES OF THE STUDY

This thesis has a four-fold objective:

1. To examine the grant of immunity to witnesses admitted into the Witness Protection,

Security, and Benefits Program.

2. To provide basis for challenging the unqualified grant of immunity and the exemption

granted to witnesses admitted into the Program from forfeiting in favor of the government

unlawfully acquired properties, including kickbacks received by the witness from corrupt

transactions.

3. To reconcile the right of the government to recover its assets unlawfully acquired by public

officials and employees, or private citizens in conspiracy with public officials or

employees with the immunity granted to those admitted into the Program.

4. To propose an amendment of R.A. 6981 that will focus on harmonizing seemingly

conflicting rules with respect to the states right to asset recovery vis --vis the immunity

granted by the Program. The proposal shall endeavor to make R.A. 6981 more responsive

to legal challenges resulting from the investigations on PDAF scam and government efforts

aimed at curbing corruption. In particular, the proposed amendment shall include

provisions that shall:

a. Distinguish the extent of immunity to be granted upon admission into the

Program depending on the offense committed.

b. Declare in unequivocal terms the correlative duty to forfeit in favor of the

government unlawfully acquired properties, in appropriate cases.

c. Make a disclosure of unlawfully acquired assets or kickbacks from corrupt

transaction as part of the conditions, in appropriate cases, for admission into

the Program.


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In pursuing these objectives, this thesis will examine R.A. 6981, highlighting the effects

of being admitted into the Program. Sections 17 and 18, Rule 119 of the Rules of Court shall

also be examined to provide the backdrop upon which R.A. 6981 will be examined. It shall look

into the intent behind the law and assess whether R.A. 6981 is consistent with declared state

policies enshrined in the Constitution and other legislations aimed at putting an end to graft and

corrupt practices. Furthermore, applicable laws and jurisprudence will be examined to identify

provisions that need to be included in the proposed amendment of R.A. 6981. In particular, this

thesis challenges the unqualified exemption granted to state witness from forfeiting in favor of

the government the fruits of the crime participated in by the public official turned state witness.

C.SIGNIFICANCE OF THE STUDY

The ongoing investigations of the PDAF scam necessitate the need to clarify rules on the

admission of state witnesses, in particular the extent of immunity granted to them by R.A 6981.

The governments efforts aimed at curbing corruption entails the need to have in place systems

and laws that would allow witnesses to be granted immunities and privileges in exchange for

their testimonies that are necessary for the prosecution of offenders without wholly abdicating its

right to recover what it rightfully owns.

With the growing public indignation against the prevalence of corruption in the country,

which is now even more highlighted by the PDAF scam, it becomes necessary to re-examine the

Witness Protection, Security, and Benefit Act and determine whether there are aspects in the law

that have to be amended in order to aid the government in its fight against corruption. While it is

recognized that the law permits the discharge of the accused to be a state witness both under

R.A. 6981 and the Rules of Court to encourage a person who has witnessed a crime or has

knowledge of its commission to come forward and testify in court or a quasi-judicial body, or


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before an investigating authority, by protecting him from reprisals and shielding him from

economic dislocation,"19

there is a need to balance the public interest in ferreting out the truth in

investigations and the need to protect and recover government funds and properties illegally

acquired by erring public officials and employees. In view of the pro-active stance of the

government in its fight against corruption, amending existing laws on the matter would be a

welcome development to facilitate better investigations and prosecution of offenses involving

present and future allegations of corrupt practices

D.STATEMENT OF THE PROBLEM

The proponent finds as problematic the extent of immunity granted by R.A. 6981. This

thesis submits that Section 14 of R.A. 6981 is constitutionally infirm for granting to state

witnesses admitted into the Program an unqualified transactional immunity, which appears to

extend beyond immunity from criminal prosecution and exempts the state witness from forfeiture

proceedings, thus depriving the State of its constitutional right to recover properties unlawfully

acquired by its agents. The present wording of the challenged provision is arguably ambiguous

that it allows a person who has participated in an offense involving the misuse of public funds to

keep part of the loot, kickbacks, or incentives he or she received for his participation in the

unlawful transaction, provided he becomes a witness for the government. This situation is clearly

violative of Article XI, Section 15 of the Philippine Constitution, which provides that the right

of the State to recover properties unlawfully acquired by public officials or employees, from

them or from their nominees or transferees, shall not be barred by prescription, laches or

estoppel.20

Section 14 of R.A. 6981 must be struck down as unconstitutional or at the very least

be amended to state in unequivocal terms the extent of the immunity granted to state witnesses.

19Ampatuan, Jr. v. Secretary of Justice, 695 SCRA 159 (2013).20PHIL.CONST. art. XI, 15.


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The ambiguous provision in R.A. 6981 has to be resolved because of the competing substantive

rights and public interests involved in a statutory grant of immunity.

In connection with the unqualified grant of immunity afforded to state witnesses, there is

also a need to clarify how the immunity operates in cases involving public funds, which are

normally entrusted to the care of public officials or agents. As it is written, R.A. 6981 equally

grants an unqualified transactional immunity without regard to the public character of the subject

matter of the offense or the persons involved. This allows public officials/employees who may

be equally guilty of an offense to be made scot-free without being subjected to forfeiture of the

fruits of the crime in favor of the government upon their admission to the Program. Hence, it

would seem that the government cannot compel the surrender of kickbacks received by public

officials who are later on admitted as state witnesses even though the same were illegally taken

from the public coffers. The law in question is contrary to the declared policy of the state that it

shall maintain honesty and integrity in the public service and take positive and effective

measures against graft and corruption.21

This is also an unsound policy and is a disservice to the

Filipino people. While, the Department of Justice in the ongoing investigations urges applicants

to the Program to first return to the government whatever they have illegally received, it may be

argued that such requirement finds no basis in R.A. 6981 or the Rules of Court, but can only find

support from the wide latitude of discretion granted to the Department of Justice in the

implementation of R.A. 6981. Needless to say, the absence of clear-cut rules on the matter would

make the law prone to abuse and misinterpretation.

21PHIL.CONST. art. II, 27.


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E.SCOPE AND LIMITATIONS OF THE STUDY

This thesis will necessarily discuss the rules on the discharge of the accused to be a state

witness under the Rules of Court and those provided under R.A. 6981. The thesis aims not to

delve on the requirements and qualifications to be admitted into the Program or to be discharged

as an accused since the same are already settled by existing jurisprudence. The primary focus of

this thesis is the examination of the effects and benefits of the discharge of the accusedto be a

state witness and/or his admission into the Witness Protection, Security and Benefits Program in

view of the submission that the unqualified grant of transactional immunity provided by R.A.

6981 is constitutionally infirm for depriving the State of its right to recover its properties that are

unlawfully acquired by its agents. While this thesis shall include forfeiture proceedings in its

analysis as means for the state to exercise its right to asset recovery, only a general overview of

laws providing for such means are included in this thesis. In the same way, this thesis shall be

limited to providing basis for the amendment of the R.A. 6981 with particular focus on the

immunity provision of the law. The proponent intentionally limited its scope to the extent of the

immunity granted by R.A. 6981 because the same has not yet been settled in jurisprudence. It

shall not delve on the authority of the Ombudsman, Sandiganbayan, and the Presidential

Commission on Good Government.

As for the other provisions of R.A. 6981, this thesis shall only make a general

examination of such to identify provisions that need to be included in the proposed amendment

with the end in view of clarifying the immunity granted to state witnesses admitted into the

Program.

F.METHODOLOGY

This is a research driven study of laws and jurisprudence pertaining to the discharge of

the accused to be a state witness and the admission of a witness or a discharged accused into the


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Witness Protection, Security, and Benefit Program with particular focus on providing basis to

challenge the unqualified exemption granted to state witnesses from forfeiting in favor of the

government the fruits of the crime. This thesis uses books, journals, newspaper articles, and

internet sources both in domestic and international fields. It shall also conduct key informant

interviews to develop the structure and arguments forwarded in this thesis.

F.ORGANIZATION OF THE THESIS

This thesis is comprised of five chapters. Chapter One begins by introducing the

background, objectives, and significance of the study. Chapter Two will discuss the rules on the

discharge of a defendant both under the Revised Rules of Court and under R.A. 6981. This

chapter will trace the history and legislative intent of the rules pertaining to the matter.

Moreover, this chapter will compare and contrast the judicial act of discharging an accused to be

a state witness with the executive act involved in the admission of a witness into the Witness

Protection, Security, and Benefit Act pursuant to R.A. 6981. The primary focus of this chapter is

to examine the effects of the discharge of the accused or his/her admission into the Witness

Protection, Security, and Benefits Program. Chapter Three shall look into the practice of

granting immunity to witnesses in exchange for their compelled testimony. This chapter shall

include developments in American jurispudence that deal with grant of immunity vis--vis the

witnesses right against self-incrimination. Chapter 4is devoted to an analysis of the immunity

provision of R.A. 6981. This chapter examines how the challenged provision contravenes the

constitutional right of the state to recover its assets. It shall also look into other laws that

facilitate the States right to asset recovery. In addition, this chapter shall also challenge the

validity of the immunity provision on the grounds that the same is ambiguous and may be

considered as a defective waiver of substantive rights. This chapter also establishes the need for a


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legislative action i.e. amendment of R.A. 6981 as opposed to a mere administrative action to

address the issues raised in this study. Chapter Five contains the conclusion and

recommendations of the study. It summarizes the key points of the study and highlights the need

to amend R.A. 6981.

CHAPTER2: THESTATEWITNESSUNDERTHERULESOFCOURTVS.THE

PROTECTEDWITNESSUNDERR.A.6981

Discharging an accused to be a state witness is often used by the courts to gather

information necessary for the conviction of an accused, which would not normally be accessible

if not for the testimony of one of the accused. Employing state witnesses have helped the

prosecution of cases brought to the court for their proper resolution. In order to understand the

practice, it becomes necessary to look into relevant laws and jurisprudence on the matter.

A.THE HISTORICAL DEVELOPMENT OF THE RULE ON DISCHARGING THE ACCUSED TO BE

USED AS STATE WITNESS IN THE PHILIPPINES

As early as 1900, the practice of discharging the accused to be used as witness for the

government was already provided in General Orders No. 58 of 1900,22

which was issued by the

Office of the United States Military Governor in the Philippines and provided for the rules of

criminal procedure applicable then. Of importance are sections 34-36 of G.O. 58, which are

reproduced as follows:

SEC. 34.When two or more persons shall be included in the same charge, thecourt, at any time before the defendants have entered upon their defence orupon the application of the counsel of the government, may direct anydefendant to be discharged that he may be a witness for the United States.

SEC. 35.When two or more persons shall be included in the same charge, andthe court shall be of opinion in respect to a particular defendant that there is

not sufficient evidence to put him on his defence, it must order him to bedischarged before the evidence is closed, that he may be a witness for his co-

defendant.

221900 CRIMINAL PROCEDURE GENERAL ORDER NO.58 (superseded 2000).


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SEC. 36. The order indicated in sections 34 and 35 shall amount to anacquittal of the defendant and shall be a bar to future prosecution for the same

offence.23

A subsequent legislation on the practice is found in Act No. 2709 of 1917.24

This Act

consists of four short provisions. Sections 1 and 2 are reproduced as follows:

SECTION 1. Every prosecution for a crime shall be in the name of the UnitedStates against all persons who appear to be responsible therefor, except in thecases determine in section two of this Act.

SEC. 2. When two or more persons are charged with the commission of a

certain crime, the competent court, at any time before they have entered upontheir defense, may direct any of them to be discharged, that he may be a

witness for the Government when in the judgment of the court:

(a) There is absolute necessity for the testimony of the accused whose

discharge is requested;

(b) There is no other direct evidence available for the proper prosecution of

the crime committed, except the testimony of said accused;

(c) The testimony of said accused can be substantially corroborated in its

material points;

(d) Said accused does not appear to be the most guilty, and

(e) Said accused has not at any time been convicted of the crime of perjury or

false testimony or of any other crime involving moral turpitude.25

The case of U.S. v. Abanzado26

gives an explanation on the intent of the two laws

abovementioned. In this case, a group of superstitious men murdered a family believed to have

been practicing sorcery. Years after the crime, 2 accomplices of the crime were discharged to be

used as a state witness. The discharged made by the judge was challenged to be invalid because

allegedly the trial judge did not have in mind the provisions of Act no. 2709, which amended

G.O. 58 when the discharge was made. It was also argued that the statute was made not long

231900 CRIMINAL PROCEDURE GENERAL ORDER NO.58 34-36.24Act no. 2709 of 191725Id.26U.S. v. Abanzado 37 Phil. 658 (1918).


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before the trial of the case and that because the trial judge had no information as to the precise

nature of the legislation when the discharge was made, his discharge should have been exercised

in accordance with section 34 of General Orders no. 58. The question presented to the court was

whether there are inconsistencies with G.O. no 58 and the subsequent legislation, Act no. 2079.

To this, the court stated:

Examining the terms of these statutory enactments, it is clear that it was notthe intention of the legislator, by the enactment of Act No. 2709, to deprivethe prosecution and the state of the right to make use of accomplices and

informers as witnesses, but merely to regulate the exercise of that right byestablishing the conditions under which it may properly be exercised. It is

clear, furthermore, that the legislator intended to rest the manner of the

enforcement of these conditions in the sound judicial discretion of the courts.This discretion, in the very nature of the thing must, as a general rule, be

exercised prior to the trial, and in all cases before the accused have enteredupon their defense.27

The Court in Abanzado explained that discharging an accused rests in the sound

discretion of the courts.28

It clarified that in enacting Act 2709, the legislature did not divest the

courts of its discretion but merely laid down the conditions upon which the prerogative shall be

exercised. The Court also recognized the role that the prosecution plays in aiding the courts in

the exercise of this discretion. The Court said:

Under the circumstances, it may well be expected that the court will err attimes in its exercise. A trial judge cannot be expected or required to inform

himself with absolute certainty at the very outset of the trial as to everythingwhich may be developed in the course of the trial in regard to the guilty

participation of the accused in the commission of the crime charged in thecomplaint. If that were practicable or possible there would be little need forthe formality of a trial. He must rely in large part upon the suggestions and the

information furnished by the prosecuting officer in coming to his conclusionsas to the "necessity for the testimony of the accused whose discharge isrequested;" as to availability or nonavailability of other direct or corroborativeevidence; as to which of the accused is "most guilty," and the like.

27Id.28U.S. v. Abanzado 37 Phil. 658


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As to the question whether these two laws are in conflict with each other, the court

answered in the negative. It said:

We find no real or substantial conflict, then, between the provisions of section2 of Act No. 2709 and the provisions of General Orders No. 58 on the samesubject.

Both recognize the judicial discretion of the courts in the premises; and theexpress condition set forth in the later statute are in substance and effectidentical with those implied in the grant of discretion in the earlier law, for the

provisions of General Orders No. 58 should not be presumed to haveamounted to a grant of an arbitrary discretion to the trial courts, but rather a

sound judicial discretion to be exercised with due regard to the correctadministration of justice.

The 1918 case of Abanzado may be used to highlight two things: First, the discharge of

an accused in a criminal information so that he or she may be used as a witness for the state

rightly falls within the domain of the courts. Second, a legislative enactment that provides for

conditions under which the courts shall exercise its jurisdictions does not necessarily encroach

upon judicial discretion, such as in this case, where the legislative enactment merely made

explicit what was already implied in the Rules of Criminal Procedure applicable in the

Philippines then.

B.DISCHARGING AN ACCUSED UNDER THE RULES OF COURT

The practice of discharging an accused was retained by the Supreme Court and included

it in the 1940 Rules of Court. Save for the condition that the accused should have not been in any

time convicted of the crime or perjury or false testimony as provided in Act. 2709 of 1917,

Section 9, Rule 115 of the 1940 Rules of Court is substantially the same with the earlier law. It

contained however a condition that the accused should not have been convicted of any offense

involving moral turpitude. The 1940 Rules of Court provides:

Sec. 9. Discharge of accused to be state witness. When two or more


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persons are charged with the commission of a certain offense, the competentcourt, at any time before they have entered upon their defense, may direct any

of them to be discharged with the latters consent that he may be a witness forthe government when in the judgment of the court:

(a) There is absolute necessity for the testimony of the accused whose

discharge is requested;(b) There is no other direct evidence available for the proper prosecution of

the offense committed, except the testimony of said defendant;

(c) The testimony of said defendant can be substantially corroborated in its

material points;

(d) Said defendant does not appear to be the most guilty;

(e) Said defendant has not at any time been convicted of any offense

involving moral turpitude.29

The provisions of the 1964 Rules of Court relating to the matter were an exact copy of

the 1940 rules. The 1964 provision was reproduced in the 1985 Rules of Criminal Procedure

with a few modifications. The 1985 Rules provides:

Sec. 9. Discharge of accused to be state witness. When two or more

persons are jointly charged with the commission of any offense, upon motionof the prosecution before resting its case, the court may direct one or more of

the accused to be discharged with their consent so that they may be witnessesfor the state when after requiring the prosecution to present evidence and

the sworn statement of each proposed state witness at a hearing in

support of the discharge, the court is satisfied that:

(a) There is absolute necessity for the testimony of the accused whosedischarge is requested;

(b) There is no other direct evidence available for the proper prosecution ofthe offense committed, except the testimony of said accused;

(c) The testimony of said accused can be substantially corroborated in itsmaterial points;

(d) Said accused does not appear to be the most guilty;

(e) Said accused has not at any time been convicted of any offense involving

moral turpitude.Evidence adduced in support of the discharge shall automatically form part ofthe trial. If the court denies the motion for discharge of the accused as state

witness, his sworn statement shall be inadmissible in evidence.30

[emphasissupplied]

291940 Rules of Court301985 Rules of Criminal Procedure


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While the 1985 Rules of Criminal Procedure contains the same conditions for an accused

to be discharged and be used as a state witness, it mandates that a hearing in support of the

discharge be held. The court in one case explained that the 1985 rules amends the old rule by

categorically requiring a hearing where the prosecution shall present the sworn statement of the

proposed witness and its other evidence for the purpose of proving to the satisfaction of the court

that the conditions for discharge as above-enumerated exist.31

The court further explained that

the amendment serves to avoid a repetition of the case of Flores v. Sandiganbayanwhere the

Supreme Court set aside the Order of Discharge of the Sandiganbayan because said court merely

relied on the information furnished by the fiscal in forming its conclusion of whether the

conditions for discharge have been met.32

The Court in another case declared that the trial court has the exclusive responsibility in

the discharge of the accused from the information and hence it has to ensure that:

xxx the requisites prescribed by the rules exist, particularly the requisite thatthere is absolute necessity for the testimony of the defendant whose discharge

is requested. Under this requisite, the fiscal must show that there is absolutenecessity for the testimony of the defendant whose discharge he seeks, inorder to be witness for the prosecution. This requirement is aimed to curtail

miscarriage of justice, before too common, through the abuse of the power toask for the discharge of one or more defendants. Absolute necessity of the

testimony of the defendant, whose discharge is requested must now be

shown if the discharge is to be allowed, and the power to determine thenecessity is lodged upon the court xxx33[emphasis supplied]

The Supreme Court explained that the 1985 Rules requirement for a hearing in support

of the discharge pertains to a proceeding, separate from the trial itself, where the prosecution

presents its evidence proving the existence of the conditions for discharge and the sworn

31People v. Court of Appeals 131 SCRA 107 (1984).32Id., at 115, citingFlores v. Sandiganbayan 124 SCRA 109 (1983).33People v. Court of Appeals 223 SCRA 479 (1993).


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statement of the proposed witness.34

The separate proceeding provides an opportunity for the

defense to oppose the motion to discharge. The Court said that the objective of the law is for

the court to receive or possess evidence for or against the discharge which will serve as tangible

and concrete basis, independent of the fiscal's or prosecution's persuasions, in granting or

denying the motion for discharge.35

However, the Court in the same case explained that it does not offend due process when

an actual hearing is not conducted. For as long as the sworn statement of the accused sought to

be discharged and its evidence is submitted in court and the defense is given an opportunity to

oppose the motion to discharge the spirit and intent of the Sec. 9, Rule 119 is satisfied. Where a

party was given the opportunity to be heard, either through oral arguments or pleadings, there

can be denial of procedural due process.36

The Revised Rules of Criminal Procedure, as amended (2000) reproduced verbatim

Section 9, Rule 119 of the 1985 Rules on Criminal Procedure. However, said section is

renumbered as Section 17, Rule 119 of the Revised Rules on Criminal Procedure.37

C.PRECURSORS TO THE R.A.6981:PRESIDENTIAL DECREES 1731&1732

Protection of citizens who are performing witness duty may be argued to be a reasonable

expectation in exchange for the risks that face in view of aiding the prosecution of offenders. In

1980, then President Ferdinand Marcos, issued Presidential Decree No. 1731 (Providing for

Rewards and Incentives to Government Witnesses and Informants and for Other Purposes).38

34Id. at 487.35Id.36Id.37REVISED RULES OF CRIMINAL PROCEDURE38Providing for Rewards and Incentives to Government Witnesses and Informants and for Other Purposes, PD 1731,

(1980).


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P.D. 1731 was issued during the wake of rampant bombings in Metro Manila.39

The decree was

issued to curb the organized crimes prevalent in the country at that time. The whereas clause of

the decree mentions the imperative need to neutralize crimes against National Security or

Public Order or organized/syndicated crime before they grow to unmanageable proportions by

providing rewards, incentives, protection and, in certain cases, immunity from criminal

prosecution to government witnesses, so that the total commitment of our people on the side of

law enforcement may be encouraged.40

Section 2 of the decree is reproduced as follows:

Section 2. Whenever in the judgment of the Minister of National Defensetestimony from, or willingness to testify by a witness, would place in danger

the witness' life or person, or the life or person of a member of his family orhousehold, the Minister of National Defense, upon the recommendation of theChief of the Philippine Constabulary or the chief of any law enforcementagency, is hereby authorized to:

(a) Provide for the security of such witness who testified/is willing to testify,or who provided/is willing to provide a vital information leading to the arrest

and/or prosecution of any member of an organized/syndicated crime group orperson who participated in any organized/syndicated criminal activity, or in

crimes against national security and public order.

(b) Purchase, rent or remodel protected housing facilities and to otherwiseoffer to provide measures for the health, safety, and welfare of such witnessesand potential witnesses and their families. Any person availing himself of an

offer by the Minister of National Defense to use such facilities may continueto use such facilities for as long as the Minister of National Defense

determines that there is danger to his life or his person.

(c) Upon application of such witnesses, relocate and/or provide new identitiesto them and their immediate members of their families. For all legal purposes,

such grant of new domiciles and new identities as duly certified by theMinister of National Defense, shall be valid and binding on all courts,

ministries, agencies and instrumentalities of the government as thoughacquired under the provisions of existing law.

(d) Grant monetary reward to any such witnesses in the amounts herein belowprovided:

39SEN REC. Vol. II, No. 51, at of the Philippine Senate, Oct 19, 1989 at page 9.40See Whereas clause of P.D. 1731.


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1. If the penalty imposable for the crime committed is life imprisonment todeath, the amount of the reward shall be 50,000.00 pesos;

2. If the penalty imposable for the crime committed is imprisonment of from

twelve years and one day to twenty years, the amount of the reward shall be40,000.00 pesos;

3. If the penalty imposable for the crime committed is imprisonment of from

six years and one day to twelve years, the amount of the reward shall be30,000.00 pesos ;

4. If the penalty imposable for the crime committed is imprisonment below six

years and one day, the amount of the reward shall be 25,000.00 pesos.41

Approved on the same date as PD 1731 and premised on the same goals, then President

Marcos issued Presidential Decree 1732 (Providing Immunity from Criminal Prosecution to

Government Witnesses and for other Purposes).42

Its whereas clause reveals the imperative need

to provoke the total involvement of the citizenry in the campaign against these criminal

elements by providing immunity from criminal prosecution to any witness who shall give vital

information to the government concerning the existence, operation and activity of such criminal

elements, and to provide for a compulsory process against uncooperative and recalcitrant

witnesses.43

PD 1732 also called for the creation of a Special Committee composed of the then

Minister of National Defense, the Minister of Justice, the Tanodbayan or their duly authorized

representatives,44

who shall process the admission of applicants seeking protection and immunity

who qualify based on the conditions set forth in section three of the decree. In the application for

immunity from criminal prosecution, the following factors are considered:

41P.D. 1731 2.42 Providing Immunity from Criminal Prosecution to Government Witnesses and for Other Purposes, P.D. 1732

(1980).43See Whereas Clause of P.D. 1732.44P.D.1732, 2.


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(a) The absolute necessity of the testimony of the witness and/or theproduction of documents, papers, books, records, writings, or other evidence

so requested;

(b) That there is no other direct evidence available for the properprosecution of the offense committed, except the testimony of said witness

and/or the production of the documents, papers, books, records, writings orother evidence so requested;

(c) That the testimony of said witness or the other evidence requested can

be substantially corroborated in its material points; and

(d) The witness, if he is suspect, respondent or defendant in a case underinvestigation or filed in court, does not appear to be the most guilty.45

Several years after the aforementioned decrees took effect, the Eighth Congress of the

Republic of the Philippines enacted into law R.A. 6981. This law, alongside Sections 17 & 18,

Rule 119 of the Rules of Court, may be argued to be highly significant in recent events

surrounding the PDAF scam.

D.WITNESS PROTECTION,SECURITY,AND BENEFIT ACT,R.A.6981(1991)

In 1991, the Philippine Congress enacted the Witness Protection, Security, and Benefit

Act which seeks to encourage a person who has witnessed or has knowledge of the commission

of a crime to testify before a court or quasi-judicial body, or before an investigating authority, by

protecting him from reprisals and from economic dislocation46

In the sponsorship speech of

Representative Isidro Zarraga, then Chairman of the Committee of Justice of the House of

Representatives, he intimated that the House bill is intended to provide witness protection to

obtain better cooperation from citizens in the investigations and prosecution of offenses against

criminals and suspects, for the early resolution of crimes.47 Fear of reprisals and sheer

indifference of witnesses hinder the resolution of crimes, necessitating the enactment of a law

45P.D. 1732 3.46Department of Justice website available at http://www.doj.gov.ph/witness-protection,-security-and-benefit-

program.html (last accessed June 15, 2014).47See Journals of October 17, 1990. Floor Deliberations p569.


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that would encourage persons who have information on the commission of an offense. The

protection afforded to a witness could be before, during, and even after the trial for as long as the

witness qualify to be admitted into the Program.

Undeniably, the importance of witnesses in the prosecution of crimes cannot be

overemphasized. Justice requires the participation and attendance of witnesses who are cognizant

of material facts, and there must be no unreasonable hindrance for them to come to the court and

give oral testimony. Recognizing the duty of citizens to help in the administration of justice also

brings to light the duty of the state to provide for mechanisms and safety measures to ensure that

the well-being of the witnesses is protected and promoted.

Interestingly, R.A. 6981 covers both protection and the grant of immunity from criminal

prosecution to witnesses admitted into the Program. R.A. 6981, grants protection to three classes

of witnesses:

1)

Those who witnessed or have knowledge of the commission of a crime, butare not participants in the commission thereof;48

2) Witnesses in case of legislative in aid of legislation;49and

3)

State Witnesses: Those who participated in the commission of the offense, butwhose testimony is necessary for the prosecution of the crime or those whohave been discharged from the information and turned into a state witness.50

It is submitted however, that the third type of witness may be further subdivided into two

categories:

a. Those who participated in the commission of the offense who are not

yet charged in court; andb.

Those who have participated in the commission of the offense, charged

in court, and later discharged to be a state witness.51

Section 3 of R.A. 6981 provides for the conditions for the first class of witnesses. He or

she may be any person who has witnessed or has knowledge or information on the commission

48Witness Protection, Security, and Benefit Ac of 1991, 3.49Id. 4.50Id. 10.51Id. 4.


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of a crime and has testified or is testifying or about to testify before any judicial or quasi-judicial

body, or before any investigating authority52

For purposes of this study, section three of R.A.

6981 will be identified as the general conditionsto be satisfied in order for one to be within the

coverage of the law because they all equally apply to the three types of witnesses sought to be

protected by the law.

The conditions set forth in said section may be summarized as follows:

a) the offense in which his testimony will be used is a grave felony as definedunder the Revised Penal Code, or its equivalent under special laws;

b) that the witness testimony can be substantially corroborated in its materialpoints;

c) that he or any member of his family within the second civil degree ofconsanguinity or affinity is subjected to threats to his life or bodily injury, orthat there is likelihood that he will be killed, forced, intimidated, harassed or

corrupted to prevent him from testifying or to falsely testify;

d) that the witness is not a law enforcement officer.53

The records of the Bicameral Conference Committee54

meeting on the disagreeing

provisions of the Senate Bill and House Bill versions of R.A. 6981 clarify that the protection

extends to persons who may not only have personally witnessed the commission of an offense

but to anyone who has information on the crime. Thus, informants may be deemed included

within the coverage of the law for as long as they satisfy the conditions set forth under the

section and provided they later testify in court. In the same way, it was also clarified under the

Bicameral Conference Committee meeting that a person who has already testified but has not yet

been admitted into the Program may still seek admission into the Program.

The first condition requires that the offense in which the witness testimony will be used

52Id. 3.53Id. 3.54See Records of the Bicameral Conference Meeting


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is a grave felony. The Revised Penal Code defines grave felonies as those to which the law

attaches the capital punishment or penalties which in any of their periods are afflictive.55

Under

the same code, afflictive penalties include: reclusion perpetua, reclusion temporal, perpetual

or temporary absolute disqualification, perpetual or temporary special disqualification,prision

mayor, and fine, whether imposed as single or as alternative penalty if it exceeds 6,000 Php.56

It is noteworthy that the present law under consideration expanded the scope of the House

Bill version of R.A. 6981. Under the original house bill, as expressed by Honorable Rodriguez in

the Bicameral Conference Committee Meeting, the version emphasized on organized criminal

activities, terrorism, threats to national security, and military abuses. This emphasis retained the

coverage under the Presidential Decrees issued by then President Marcos discussed above which

according to Honorable Gonzales was really intended against the Marcos objectors.57

As may

be gleaned from the Bicameral Conference Committee meeting, the legislators may have wanted

to expand and to make the requirement more encompassing; hence, R.A. 6981 is worded as

such.58

Applying the conditions set forth in section 3 of R.A. 6981, it would appear that a person

who has witnessed or who has information on the commission of a grave felony who will testify

or have testified in any court or quasi-judicial authorities and who have been subjected to threat

to his life or bodily injury, or whenever the threat is directed to his family within the second

degree may avail of the benefits of the Program. An expressed exception is given in case of law

enforcement officers, although the benefits of the Program may still be availed of the law

55An Act Revising the Penal Code and Other Penal Laws [REVISED PENAL CODE], Act No. 3815, art. 2 (1932).56Id. art 25.57Bicameral Conference Committee Meeting, Feb 13, 1991, 33.58Id.


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enforcement officers family.59

The rationale of this exception as explained in the Bicameral

Conference Committee meeting is the fact that police officers already have the means to protect

themselves.

A perusal of the legislative records would also reveal that the person actually admitted

into the Program is the witness himself and not his family. While the benefits and protection

extend to the witness family, the person who seeks admission and is expected to exercise the

rights and duties under the law is the witness himself.

Under Section 4 of R.A. 6981, the protection afforded by the law extends to a person

testifying before legislative investigations conducted by Congress or any of its committees. As

such, R.A. 6981 is broad enough to cover instances when there is yet to be filed any criminal

information against a person. R.A. 6981 is not limited to witnesses testifying in criminal cases

filed in court and its benefits may be availed by a person testifying before quasi-judicial bodies,

including investigations conducted by Congress. The same section provides that a person

appearing before a legislative investigation may be admitted into the Program provided he has

given his expressed consent and upon the recommendation of the legislative committee where

his testimony is needed. A further requirement is given by section 4, which requires the approval

of the Senate President or the Speaker of the House of Representatives.60

The third kind of persons who may avail of the benefits of the Program is what is

properly called as state witnesses. Prior to R.A. 6981, a state witness has been traditionally

defined according to the Rules of Court as one of two or more persons jointly charged with the

commission of a crime but who is discharged with his consent as such accused so that he may be

59Witness Protection, Security, and Benefit Act of 1991, 3.60Id. 4.


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a witness for the State.61

However as previously mentioned, Section 10 of R.A 6981, expands

this definition and contemplates two kinds of state witnesses. The first kind of state witness is a

person who has participated in the offense but has not yet been charged in the court. The second

kind of state witness that may be admitted into the Program is an accused who has been

discharged from the information in order to serve as witness for the government in accordance

with Section 17, Rule 119, of the Rules of Court.62

The distinction of these types of state

witnesses needs to be emphasized. For one, the discharge of an accused from the information

requires judicial action whereas the person who participated in the offense but has not yet been

charged in court may be admitted into the Program upon determination by the Department of

Justice.

Note must be had that R.A. 6981 provides for the same conditions for admission into the

Program that are applicable to both type of state witness. Save only for the additional

requirement in R.A. 6981 that the offense in which his testimony will be used is a grave felony

as defined under the Revised Penal Code or its equivalent under special laws.63

As with the

other requirements, R.A. 6981 and the Rules of Court similarly provides the following

requirements:

(a)There is ABSOLUTE NECESSITY for the testimony of the accusedwhose discharge is requested;

(b)There is NO OTHER DIRECT EVIDENCE AVAILABLE for theproper prosecution of the offense committed, except the testimony of saidaccused;

(c)The testimony of said accused can be substantiallyCORROBORATED in its material points;

(d)

Said accused does NOTappear to be the MOST GUILTY; and(e)

Said accused has NOT at any time been CONVICTED of any offenseinvolvingmoral turpitude.64[emphasis supplied]

612000 Revised Rules of Criminal Procedure, rule 119, 17.62Witness Protection, Security, and Benefit Act of 1991, 10.63Id 10 (a).64See 2000 Revised Rules of Criminal Procedure rule 119 17. See also Witness Protection, Security, and Benefit

Act of 1991, 10.


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E.PROCEDURE OF DISCHARGING THE ACCUSED UNDER THE RULES OF COURT

Under the Rules of Court, the court may discharge one of the accused upon motion of the

prosecution before resting its case so that the accused will be used as a witness for the

government provided that the court is satisfied after the prosecution presents evidence and the

sworn statement of the proposed state witness at a hearing in support of the discharge that the

abovementioned conditions are satisfied.65

One has to take note that Section 17, Rule 119 of the Rules of Court is applicable in

criminal cases and ordinarily would require that a criminal information has already been filed

against two or more accused before a motion for the discharge of one the accused to be a state

witness is filed. However, it has been held in one case that a person does not have to be first

charged in the information before he can testify for the prosecution.66

As the case of People v.

Binsol67

suggests even if the witness may have seemed to have participated in the offense but has

not been included in the information, he may still testify for the prosecution; however he is not

deemed as a state witness.68

The case ofPeople v. Chaves69

elucidates the need to differentiate a person testifying as a

state witness and an accused testifying against a co-accused. Under the first, the person is already

included in the information and is later discharged from the information after having satisfied the

conditions under Section 17, Rule 119 of the Rules of Court. As a consequence of such

discharge, he becomes exempted from any criminal liability pursuant to Section 18, Rule 119 of

the Rules of Court, which provides that [t]he order indicated in the preceding section shall

652000 Revised Rules of Criminal Procedure rule 119 17662 FLORENZD. REGALADO, REMEDIALLAWCOMPENDIUM563 (2008 edition).67People v. Binsol 100 Phil 713 (1957).68Id.69People v. Chaves, 397 SCRA 228 (2003).


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amount to an acquittal of the discharged accused and shall be a bar to future prosecution for the

same offense, unless the accused fails or refuses to testify against his co-accused in accordance

with his sworn statement constituting the basis for his discharge. In the second case, where the

accused testifies against his co-accused, he remains as an accused and can be made liable if he is

later found guilty of the offense charged.

F.PROCEDURE FOR ADMISSION INTO THE PROGRAM

Under R.A. 6981, before admission into the Program a state witness has to execute a

sworn statement describing in detail the manner in which the offense was committed and his

participation therein.

70

The Department of Justice shall conduct an examination of such person,

his sworn statement and other relevant facts and shall determine whether such person has

complied with the requirements for admission into the Program.71

One other requirement

applicable to all types of witnesses before being admitted into the Program is the execution of

memorandum of agreement that enumerates his responsibilities. Accordingly, he agrees that he

will testify before and provide all information to all appropriate law enforcement officials

concerning all appropriate proceedings in connection with or arising from the activities involved

in the offense charged.72

He or she shall also agree to avoid the commission of the crime; to

take all necessary precautions to avoid detection by others of the facts concerning the protection

provided him under the [this] Act; to comply with legal obligations and civil judgments against

him; to cooperate with respect to all reasonable requests of officers and employees of the

Government who are providing protection under this Act; and to regularly inform the appropriate

Program official of his current activities and address.73

70Witness Protection, Security, and Benefit Act of 1991, 11.71Id.72Id. 5 (a).73Id. (b-f).


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It is important to emphasize that R.A. 6981 has empowered the Department of Justice to

be the implementing agency of the Witness Protection, Security, and Benefits Program.

Furthermore, the admission into the Program of state witnesses also rests in the determination of

the Department of Justice, which is in contrast with the rules under the Rules of Court wherein

the discharge of the accused is placed under the authority of the courts. This conflict in the two

rules was resolved in the case of Webb v. De Leon.74

This case challenged the constitutionality of

R.A. 6981 on the grounds that the law constitutes intrusion into the judicial prerogative since

R.A. gave authority to the Department of Justice to declare one as a state witness. The court

stated:

the prosecution of crimes appertains to the executive department ofgovernment whose principal power and responsibility is to see that our lawsare faithfully executed. A necessary component of this power to execute ourlaws is the right to prosecute their violators. The right to prosecute vests the

prosecutor with a wide range of discretionthe discretion of whether, what

and whom to charge, the exercise of which depends on a smorgasbord offactors which are best appreciated by prosecutors. We thus hold that it is not

constitutionally permissible for Congress to enact R.A. 6981 vesting in theDepartment of Justice the power to determine who can qualify as a witness inthe Program and who shall be granted immunity from prosecution. Section 9

of Rule 119 does not support the proposition that the power to choose whoshall be a state witness is an inherent judicial prerogative.75

Interestingly, in the enactment of R.A. 6981, Congress adopted the language of the Rules

of Court with respect to the rule on state witness but it did not have an occasion to provide

guidelines as to how the rule on state witness and the provisions of R.A. 6981 would be

reconciled.76

It is of vital importance to take note that both these laws grant testimonial immunity to

persons qualifying under their respective provisions. Under R.A. 6981, testimonial immunity is

given to any of the three kinds of protected witnesses; whereas, Section 17, Rule 119 of the

74Webb v. De Leon, 247 SCRA 652 (1995).75Id.76Bicameral Conference Committee Meeting, Feb 13, 1991, page 33.


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Rules of Court provide testimonial immunity to an accused who had been discharged as a state

witness. With both the Rules of Court and R.A. 6981 providing immunity and benefits, it would

be wise to examine these two sources of law by comparison. What this study focuses on is the

effects and benefits of the Witness Protection, Security, and Benefit Program, in particular the

grant of too broad of an immunity to state witnesses as defined by R.A. 6981.

G.EFFECTS OF BEING DISCHARGED AS A STATE WITNESS

As previously mentioned, this study shall focus on the effects granted by admission into

the Witness Protection, Security, and Benefits Program. To better appreciate the broader benefits

granted by the Witness Protection, Security, and Benefit Act, a discussion on the effects of the

discharge from the information is in order.

The latter portion of Section 17, Rule 119 of the Rules of Court provides that evidence

adduced in support of the discharge shall automatically form part of the trial; but if the court

denies the motion for discharge of the accused as state witness, the sworn statement he has

provided shall be inadmissible in evidence.77

The Rules of Court provides:

Section 18. Discharge of accused operates as acquittal. The orderindicated in the preceding section shall amount to an acquittal of the

discharged accused and shall be a bar to future prosecution for the sameoffense, unless the accused fails or refuses to testify against his co-accused inaccordance with his sworn statement constituting the basis for the discharge. 78

Under the quoted provision, the order of the discharge shall constitute an acquittal and he

can no longer be prosecuted for the same offense except when he refuses or fails to testify

against his co-accused. Also, as held in one case, the confession of the discharged accused of his

participation in the commission of the offense may still be admissible against him, even if

77Revised Rules of Criminal Procedure rule 119, 17.78Id. 18.


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granted immunity under this rule if he fails to keep his part of the agreement.79

Contrasting the rules provided in the Rules of Court, it would appear that R.A. 6981

provides for greater benefits and privileges. The benefits provided the Republic Act may be

summarized as granting security, economic assistance, and immunity from criminal prosecution

and other from other penalties and forfeiture.

H.EFFECTS OF BEING ADMITTED INTO THE PROGRAM

1. Security

Section 7 of R.A. 6981 provides that all proceedings involving the application

for admission into the Program and the action taken thereon shall be

confidential in nature.80

Further, it provides the necessity of a written order from the

Department of Justice or a court order before any information or documents of such application

will be released.81

The confidentiality of the records may be considered as primary in affording protection to

the witness. Needless to say, the witness life and liberty will be put at risk once the other

perpetrators of a criminal offense receive information as to the interest and willingness of the

witness to testify for the state and against them. The said section provides for penal sanctions to

anyone who violates the confidentiality of the proceedings. Any person who violates such shall

upon conviction be punished with imprisonment of not less than one (1) year but no more than

six (6) years and deprivation of the right to hold a public office or employment for a period of

five (5) years.82

79People vs. Berberino, 79 SCRA 694 (1997).80Witness Protection, Security, and Benefit Act, 7.81Id.82Id.


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A witness admitted into the Program shall be entitled to a secure housing facility until

he has testified or until the threat or harassment disappears or is reduced to a manageable or

tolerable level.83

The threats that witnesses face vary and may be dependent on the weight of

the testimony to be given and the offense in which the testimony will be used. It is enlightening

that the not all witnesses are to be placed in secure housing facilities or more commonly known

in poIice terms as safe houses.84

The right to secure housing facility depends on the

circumstances of each case.

In the same way, the witness is also entitled to relocation and/or change of personal

identity at the expense of the Program, whenever the circumstances warrant. Such right may be

extended to members of the witness family within the second degree of consanguinity of

affinity.85

During the Bicameral Conference Committee meeting, the legislators discussed the

possibility of relocating the protected witness not only within the Philippines but also abroad.

Under the original house bill version of the law, relocation abroad was expressly provided.

However, it was agreed on the Bicameral Conference Meeting to delete the phrase on the ground

that the government may not have the means to facilitate relocation of the witness abroad. 86As

regards the change of personal identity, the Bicameral Conference Committee Meeting debated

on whether the change of personal identity merely allows the protected witness to make use of

aliases or pseudonyms, which is against a law87

, except for pseudonyms for literary or artistic

purposes or whether the change of personal identity would require judicial approval and

publication; thus, defeating the purpose of concealing the identity of the witness to be protected.

83Id. 8 (a)84Record of the Senate, 8thCongress., 3rdRegular Session., Senate Sess. 47 (Oct. 12, 1989).85Witness Protection, Security, and Benefit Act, 8 (a).86Bicameral Conference Committee Meeting, Feb 13, 1991, page 69.87 An Act Amending Commonwealth Act Numbered One Hundred Forty-two Regulating the Use of Aliases,

Republic Act No. 6085.


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It was also debated on whether the change of personal identity is equally applicable to persons

regardless of their civil status i.e. married or single, as this would affect the status of the witness

spouse and children. At this juncture, the legislators left the matter to the implementing agency,

the Department of Justice, for the same to be included in the Implementing Rules and

Regulations of RA 6981. Unfortunately, both the 1991 and the 2012 IRR did not contain an

explanation on the change of personal identity.

2. Economic Support

Depending on the circumstances of each case, a witness may be physically displaced

from his usual residence and work. Consequently, the witness usually contends with economic

dislocation. Hence, economic assistance is also given to the witness admitted into the Program. If

a witness is relocated, he/she is entitled to financial assistance from the Program for his

support and that of his family in such amount and for such duration as the

Department shall determine.88

The law also provides that the Department shall, whenever

practicable, assist the witness in obtaining a means of livelihood.89

This provision is undeniably

important especially to witnesses who are relocated or those accommodated in the safe houses

provided by the government.

Moreover, the witness is also protected from being dismissed or demoted from his/her

existing employment on account of his absences due to his witness duties. The witness shall not

be dismissed or demoted provided that his/her employer is notified through a certification

issued

by

the

Department, within

a

period of thirty (30) days from the date when the

witness last reported for work.90

However, in case of prolonged transfer or permanent

88WITNESSPROTECTION, SECURITY, ANDBENEFITACT, 8 (a).89Id.90Id. 8 (c).


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relocation, the employer shall then be allowed to remove the witness from employment after

securing clearance from the Department upon the recommendation of the Department of Labor

and Employment.91

In the same way, the Program obligates the state to pay any witness the salaries and

wages he/she failed to realize because of witness duty.92

The witness is also entitled to be

provided with reasonable traveling expenses and subsistence allowance by the Program for his

attendance in court, body, or authority where his testimony is required, as well as conferences

and interviews with prosecutors or investigating officers and interviews with prosecutors or

investigating officers.

93

In case of injury or illness the witness incurred because of his/her witness duty, he/she is

entitled to free medical treatment, hospitalization, and medicines in any public or private hospital

or institution at the expense of the Program.94

Burial benefit in the amount of not less than

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