The issue that faces P-Noy and De Lima is whether or not to accept Napoles:
1. As a "protected witness" (in which case, Napoles will not be impleaded by the Ombudsman as an accused in the criminal Information/s to be filed in Sandiganbayan, hence, freed from the pains to be caused by a warrant of arrest in non-bailable plunder case/s), or,
2. As a "state witness" (in which case Napoles will be impleaded by the Ombudsman as an accused in the criminal Information/s to be filed with the Sandiganbayan, hence, to be subjected to a warrant of arrest in a non-bailable plunder case/s, while the court hears the motion of the Ombudsman to discharge Napoles as a "state witness").
Protected Witness -
Section 12 of RA No. 6981 ("Witness Protection, Security and Benefit Act") provides that "the issuance of a certification of admission into the program shall be given full faith by the provincial or city prosecutor who is required NOT TO INCLUDE the witness in the criminal complaint or information, and if included, TO PETITION FOR HIS DISCHARGE in order that he can be utilized as a state witness."
Sec. of RA No. 6981 provides that "any person who has witnessed or has knowledge or information on the commission of a crime and has testified or is testifying or about to testify before any judicial or quasi-judicial body, or before any investigating authority, may be admitted into the Program."
The qualifications of the protected witness are as follows:
"x x x.
a) 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;
b) his testimony can be substantially CORROBORATED in its material points;
c) he or any member of his family within the second civil degree of consanguinity or affinity is subjected to THREATS TO HIS LIFE OR BODILY INJURY or there is a likelihood that he will be KILLED, FORCED, INTIMIDATED, HARASSED OR CORRUPTED to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony; and
d) he is NOT a law enforcement officer, even if he would be testifying against other law enforcement officers. In such a case, only the immediate members of his FAMILY may avail themselves of the protection provided for under this Act.
x x x."
If the Department of Justice, which administers the Witness Protection Program, is convinced that the requirements of RA No. 6981 and its implementing rules and regulations have been complied with, it "shall admit said applicant to the Program, require said witness to execute a sworn statement detailing his knowledge or information on the commission of the crime, and thereafter issue the proper certification."
State Witness -
In re: the matter of "state witness", Sec. 17, Rule 119 of the Rules of Criminal Procedure provides that "when two or more persons are jointly charged with the commission of any offense, upon motion of 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 witnesses for 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 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 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 any offense involving moral turpitude."
The same section provides that "evidence adduced in support of the discharge shall automatically form part of the trial' and that "if the court DENIES the motion for discharge of the accused as state witness, his sworn statement shall be INADMISSIBLE in evidence."
Sec. 18, Rule 119 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."
Will Napoles qualify as a "protected witness" or as a "state witness" considering that Benhur Luy, who appears to be a mere salaried subordinate and follower of Napoles (i.e., does not appear to be the "most guilty"), had been previously admitted by the DOJ as a protected witness under RA No. 6981 and whose previous confession will surely contradict the future confession of Napoles, if any?
At the end of the day, it is the call of the Ombudsman, in coordination with the Department of Justice (alter ego of P-Noy), based on the facts of the case and on the available documentary evidence, (a) whether or not to admit Napoles as a "protected witness" under RA No. 6981, or (b) whether or not to implead her as an accused and, later on, move before the Sandiganbayan to discharge her as a "state witness" under Rule 119 of the Rules of Criminal Procedure.
- Atty. Manuel J. Laserna Jr.
Las Pinas City
