Gagging Mariano Part 2

From the previous blog, I mentioned that each of the publicly stated reasons for the OSG’s recommendation to reject Mr. Tanenglian’s offer can be examined under a legal microscope.

First Reason: The danger that Mariano Tanenglian  will “suddenly [change] his mind and [turn] his back on [the State][1]?

The first reason offered by the Solicitor General to vindicate her recommendation is her concern that the witness may retract his statements or renege on his agreement to present evidence after immunity or discharge is granted by the State.

The “possibility” of such occurrence has to be acknowledged, but is the danger of retraction of such magnitude and degree that it would warrant the outright rejection of the offer of a willing witness to testify? My candid opinion is that it isn’t.

Discharge as state witness

The provision on “discharge” of a person accused as state witness is found in Section 17 of Rule 119 of the Rules of Court:

“Section 17. Discharge of the Accused to be a State Witness. 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 the 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.

“Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denied the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence.”

Note that the last sentence of Section 17 explicitly provides that “[i]f the court denied the motion for discharge x x x, his sworn statement shall be inadmissible in evidence.” This can only mean that before one may be considered a state witness and therefore be entitled to the effects of the discharge, he is required to execute a sworn statement containing the substance of his testimony.

The sworn statement mandated under the foregoing rule (which is usually in the form of an Affidavit) by itself provides a good measure of protection against the possibility of retraction.  A witness who contradicts the contents of his sworn statement will subject himself to Perjury punishable under Article 183 of the Revised Penal Code.

Thus, even absent any specific provision in the proposed Immunity Agreement which provides for sanctions against retraction of testimony, the requirement of the Rules to execute a Statement under oath already serves to deter the possibility that the “[witness] may refuse to cooperate with the Republic without any damage or prejudice to himself.”

Furthermore, the witness will not be discharged until he actually testifies against the accused in a criminal case in accordance with his sworn statement. Section 18 of the same Rule 119 states:

“Sec. 18. Discharge of accused operates as acquittal. – The order indicated in the preceding section 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 the discharge.”

[emphasis supplied]

Immunity from prosecution

For immunity from “future prosecution,” section 5, of Executive Order No. 14, as amended (the provision which empowers the PCGG to grant immunity from criminal prosecution) provides:

“Sec. 5. The Presidential Commission on Good Government is authorized to grant immunity from criminal prosecution to any person who provides information or testifies in any investigation conducted by such commission to establish the unlawful manner in which any respondent, defendant or accused has acquired or accumulated the property or properties in question in any case where such information or testimony is necessary to ascertain or prove the latter’s guilt or his civil liability. The immunity thereby granted shall be continued to protect the witness who repeats such testimony before the Sandiganbayan when required to do so by the latter or the commission.”

In the case of “Placido L. Mapa, Jr. et al vs. Sandiganbayan” [G.R. No. 100295, 26 April 1994], the Supreme Court held that the PCGG has ample discretion to impose conditions for the grant of immunity, thus:

“Contrary to the ruling of the respondent court, the failure of petitioners to testify in the RICO cases against the Marcoses in New York can not nullify their immunity. They have satisfied the requirements both of the law and the parties’ implementing agreements. Under Section 5 of E.O. No. 14, as amended, their duty was to give information to the prosecution, and they did. Under their Memorandum of Agreement, they promised to make themselves available as witnesses in the said RICO cases, and they did. Petitioners were ready to testify but they were to called to testify by the US prosecutors of the RICO cases. Their failure to testify was not of their own making. It was brought about by the decision of the US prosecutors who may have thought that their evidence was enough to convict the Marcoses. Since petitioner’s failure to testify was not of their own choosing nor was it due to any fault of their own, justice and equity forbid that they be penalized for their withdrawal of their immunity.” [emphasis supplied]

So, not only is the PCGG authorized to impose additional requirements not appearing in Section 5 of EO 14, the decision seems to imply that it is the duty of the PCGG to impose the conditions for the grant.  Indeed, the text of the Decision takes for granted the fact that a failure to testify allows the withdrawal of immunity.

In this connection,  recall that one of the reasons publicly offered by the OSG is that “the agreement does not provide any sanction/penalty/liability in the event that Tanenglian reneges on his obligations” and stops at that. If the statement is true and the agreement is indeed lacking in this respect, it would have been a simple matter for the OSG to recommend certain conditions which it deems would be sufficient to protect the State instead of rejecting the offer outright.

Similar to the case of a discharge, the OSG and eventually the PCGG may require Mariano Tanenglian to execute an affidavit and testify before any court. As discussed earlier, this by itself operates as a deterrent against retraction.

Indeed, the PCGG is also authorized to broaden or limit the scope of immunity granted to the applicant. This discretion was recognized by the Supreme Court in Jesus T. Tanchangco, et al. vs. Sandiganbayan, [G.R. No. 141675-96, 25 November 2005] where it stated:

“From these premises, we can draw useful conclusions. Section 5 is worded in such a manner as it does not provide any express limitations as to the scope of immunity from criminal prosecution that the PCGG is authorized to grant. The qualifications that Section 5 do provide relate to the character of the information or testimony before the PCGG of the grantee of the immunity, namely, that it “establish[es] the unlawful manner in which any respondent, defendant or accused has acquired or accumulated the property or properties in question in any case where such information or testimony is necessary to ascertain or prove the latter’s guilt or his civil liability.

Xxx

“Another consideration impels us to sustain this broad application of immunity under Section 5 of E.O. No. 14-A. We cannot ignore the special circumstances under which the PCGG was created, and the extra-ordinary powers with which it was vested. The Freedom Constitution itself, under which the body was created, recognized the need “to [r]ecover ill-gotten properties amassed by the leaders and supporters of the [Marcos] regime”. It has been acknowledged that the PCGG is “charged with the Herculean task of bailing the country out of the financial bankruptcy and morass of the previous regime and returning to the people what is rightfully theirs. For this reason, the PCGG was granted quasi-judicial functions encompassing special investigatory and prosecutorial powers. Among them, the power to grant immunity.

Xxx

“The overwhelming need to prosecute the ill-gotten wealth cases is entrenched in statute and public policy. The stakes being as they are, the need is apparent for a highly conducive environment under which witnesses may be induced to cooperate with the PCGG in the prosecution of the ill-gotten wealth cases. The authorization of the PCGG to broadly extend criminal immunity, as is apparent in the language of section 5, is attuned to such claims. Certainly, Section 5 as constructed leads to a reasonable conclusion that the scope of criminal immunity which the PCGG may offer need not be limited to prosecution relating to the information or testimony offered by the witness. And it is apparent on the face of the Cooperation Agreement with Tanchangco that the PCGG understood just as well that it had the power to grant criminal immunity even over such acts which did not directly bear on the information or testimony.

“Our conclusion is also supported by the fact that based on the PCGG immunity agreements which have come before this Court, the scope of offered immunity has proven variable. For example, the grant of immunity accorded by the PCGG to Jose Yao Campos and his family was qualified only by reference to Section 5 of E.O. No. 14. On the other hand, the immunity received by Placido Mapa and Lorenzo Vergara was limited “over any offense with reference to which [their] testimony and information are given, including any offense and commission of which any information, directly or indirectly derived from such testimony or other information is used as basis thereof, except a prosecution for perjury and/or giving false testimony.” In Tanchangco’s case, his entitlement to criminal immunity applies to three determinate circumstances: for acts committed while he was in the service of the Marcos government; acts committed in behalf of the Marcos government; and any other acts revealed by him in the course of his cooperation with the PCGG.

“These variances are indicative of the fact that the PCGG has the discretion to vest appropriate levels of criminal immunity according to the particular witness. There are several factors that may affect his choice, which may include the relative importance of the witness to the prosecution of ill-gotten wealth cases, the degree of culpability of such cases, or even the condition expressed by the witness as sufficient to induce cooperation. Given the language of Section 5, we do not doubt that latitude afforded to the PCGG in determining the extent of criminal immunity. [emphasis supplied]”

Furthermore, instead of immunity from criminal prosecution, the PCGG is authorized to grant  only “civil immunity” to Mr. Tanenglian.

In this connection, it may be worthwhile to note that Mr. Tanenglian’s offer pertains to an offer to testify in “Republic of the Philippines vs. Estate of Ferdinand Marcos, et al”.   This case is civil in nature and in fact bears a docket number denominated as CIVIL CASE NO. 005. Thus, the pertinent provision is Section 3 of E.O. No. 14, which states:

“Section 3. Civil suits for restitution, reparation of damages or indemnification for consequential damages, forfeiture proceedings provided for under Republic Act No. 1379, or any other civil actions under the Civil Code or other existing laws, in connection with Executive Order No. 1 dated February 28, 1986 and Executive Order No. 2 dated March 12, 1986, may be filed separately from and proceed independently of any criminal proceedings and may be proved by a preponderance of evidence.”

This was confirmed in Republic of the Philippines vs. Sandiganbayan [G.R. No. 84895, 4 May 1989] where the Supreme Court interpreted Section 3 in this wise:

“[T]he PCGG may file an independent civil action separate from the criminal action. Hence, section 5 thereof which empowers the PCGG to grant criminal immunity must be interpreted to relate only to a criminal action and not to a civil action. In case of a civil action, the power to grant immunity or the making of the decision not to file a civil case or to drop one already in progress must be related to section 3 of the law which specifically provides for the procedures and the applicable laws in the prosecution of civil suits.”

That being the case, the Supreme Court went on to declare that the power of the PCGG to grant immunity is not derived from Section 5 but on the rules of compromises under the Civil Code, to wit:

“In the absence of an express prohibition, the rule on amicable settlements and/ or compromises on civil cases under the civil code is applicable to PCGG cases.”

The case concluded:

“We thus hold that the Cooperation Agreement, validly undertaken between the PCGG and Tanchangco as it was, precludes the prosecution of Tanchangco under the subject charges. The Sandiganbayan acted with grave abuse of discretion in refusing to dismiss the charges despite its lack of jurisdiction to continue hearing the cases against Tanchangco. In the present petition, insofar as it relates to Tanchanco, must be granted. It goes without saying  though that this ruling does not shield all grantees under Section 5 of E.O. No. 14-A from all kinds of criminal prosecution. The extent of immunity available to each particular grantee depends on their respective immunity agreements with the PCGG and the surrounding facts.

In other words, in lieu of an outright denial of the offer to testify, the OSG would have been well within rights to recommend the grant of civil immunity only, depending on the circumstances of the case.

Consequently, it is clear that from a legal standpoint, the fear of retraction should not be an overriding factor that would warrant the outright rejection of Mr. Tanenglian’s testimony. Even if the possibility of such retraction is acknowledged, certain measures can be undertaken to minimize the impetus for its occurrence.


[1] Appearing in GET REAL: ABOUT FACE; Philippine Daily Inquirer, 10 October 2009

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