The recent admission of pork barrel scam co-conspirator Ruby Tuason highlights anew the political nature of the Witness Protection Program. Contrary to popular thinking, the WPP and the discharge of a witness as a state witness are two different things. The first is an executive act which, for all intents and purposes, is under the control and supervision of the Secretary of Justice, The latter is a judicial act and will require that the person sought to be discharged as a state witness first be charged in court.
The Witness Protection Program was created by an act of Congress, RA 6981. Under this statute, a person may either apply to the program if:
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.
As a consequence of being admitted into the program, a protected witness may be granted immunity for the crime for which he is testifying, be granted protection and a safe house, and may even keep his loot. This is because according to the web page of the DOJ, a person admitted into the program “may not be subjected to any penalty or forfeiture for any transaction, matter or thing concerning his compelled testimony or books, documents or writings produced.”
A discharge as state witness, on the other hand, is pursuant to Section 7, Rule 119 of the Revised Rules of Court. Unlike the WPP, the Rules of Court require that a state witness 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 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.”
While both provide for testimonial immunity for the accused who will testify for the state, it is clear that the WPP provides for more benefits. This includes protection, a safe house, and even the right to keep his loot. Moreover, unlike the discharge of a state witness, a person may be admitted into the WPP and be accorded all benefits of the program, including immunity form prosecution, on a very low threshold, that the testimony may be corroborated on its material points. It does not matter hence if the testimony is redundant nor that the testimony will not involve new matters that only the witness can testify on.
Simply put, admission into the WPP -which is tantamount to impunity for one’s criminal acts – is a highly political act. Unlike discharge of a state witness in court, all that is required is that there must be an alleged threat on the life of the witness and that the testimony is subject to corroboration. This is why many are aghast at the possibility that Ruby Tuason, who should be equally be prosecuted as Enrile, Estrada et al, appears to be off the hook. Just because the Secretary of Justice now admits that the cases she filed in connection with the PDAF scam does not have her “slam dunk” testimony, she now wants an equally corrupt character to be off the hook.
I have always believed in good governance and that all corrupt people in government should be thrown behind bars. In this regard, we must ensure that all those who stole from the public coffers should all spend the rest of their lives behind bars, Certainly, the admission to the WPP of Ruby Tuason, including her right now to keep part of her loot, as I think she has said that she will only return a measly P 40 million, is more reason for decent citizens to be aghast at the manner by which the WPP is being implemented.
The WPP, including the Rules of Court provision on state witnesses, exists to ensure that those who breach the law should be punished for their acts. It certainly should not be implemented in a manner to make some criminals appear luckier than others.
Totally uncalled for. While the Chinese may be expansionists, they’re certainly not genociders. The President, because we have initiated arbitration, should no longer comment on the issue. Calling our Chinese neighbors Nazis certainly does not bode well for peaceful resolution of the dispute.
The victims of the Luneta massacre —Chinese tourists from Hong Kong —and the victims of the Maguindanao massacre have much in common. Both were victims of multiple murders at the hands of state agents. The Luneta Hong tourists died in the hands of Rolando Mendoza and the inept PNP members, many of whom also shot and killed them. The Maguindanao massacre victims were killed by suspects, all of whom are government agents—from elected officials to state multipliers such as the civilan volunteer organizations (CVOs) and the Citizen Armed Force Geographical Unit (CAFGUs).
Both sets of victims have been waiting for a long time for justice. In the case of the Luneta hostages, their plight is slightly worse off because no one at all has been charged for the killings. The Maguindanao victims, on the other hand, stand to wait hundred sof years for justice given that four years later, more than 80 of the suspected perpetrators still have to be arrested.
Further, while all of them are victims of violations of the right to life, not one of them has received satisfaction in the form of an apology from the state. Neither has any of them received compensation from the state.
President Aquino and his cohorts have offered identical reasons why the Philippine government has not and will not apologize nor pay compensation to them. In the case of the Luneta victims, its is because Mendoza—not Mendoza – was solely at fault. In the case of the Maguinadanao massacre, it is because it was former President Gloria Arroyo and her allies at fault, and not the Aquino administration.
The President’s refusal to both apologize and pay compensation to all victims of the violation of the right to life is a continuing breach of international human rights law. Under the articles of state responsibility, a state incurs responsibility for an internationally wrongful act when it breaches a norm of international law and when it is committed by a person whose acts may be attributable to the state. Both of these elements are found in the Luneta and the Maguindanao massacres.
Under the International Covenant on Civil and Political Rights, states have the duty to protect and promote, among others, the right to life of their people. This is a guarantee against the arbitrary taking of life. But since the Philippines no longer has the death penalty, all killings are hence unlawful in the Philippines. The only question to invoke international responsibility for these killings is this: Who perpetrated them? If it is through a state agent or a private person acting upon orders or control of the state, then the state will be in breach of the obligation anent the right to life.
It is crystal clear that the killers in both massacres are state agents. Mendoza was with the PNP, albeit then suspended, while the rest of the bullets were “friendly fire” from other PNP officers. Meanwhile, the fiasco that led to the firefight, including the decision not to take down Mendoza earlier and to use force belatedly were formulated by other state agents. For this decision, a committee headed by Justice Secretary Leila De Lima recommended that criminal charges be filed against those who formulated the botched policy. Those recommended to be charged included then-Mayor Alfredo Lim, then-PNP General Jesus Versoza, and then-DILG Undersecretary Rico Puno. Strangely enough, until today, none of these individuals have been charged for anything.
In the case of the Maguindanao massacre, there can be no doubt that while the criminal cases against the suspected murderers are still on-going, all of those charged for the multiple murder are all state agents. There were two governors: of ARMMM and Maguindanao, mayors, vice-mayors, military men, and members again of the PNP. There too were CVOs and CAFGUs whose members are auxiliary members of the Armed Forces of the Philippines as force multipliers. In fact, although these paramilitary groups consist of members of a private army, they were nonetheless conferred the status of state agents by reason of an Executive Order issued by Mrs. Arroyo which, until now, remains in force.
But where do the victims differ?
Their nationalities. And boy, this makes a hell of a big difference.
The Luneta massacre victims are of course Hong Kong residents and nationals of China. The Maguindanao massacre victims are all Filipinos. This means that while the Luneta victims can expect their rights to be espoused by their state, the Maguindanao massacre victims cannot look forward to any support from their own state. True, the latter’s criminal cases have been prosecuted in the name of the Republic by public prosecutors. Big deal. Every single one of the victims has their own private prosecutors anyway. This is evidence that the victims have not relied on the state alone even for the conviction of the suspects for murder. Moreover, given the proximity of the accused to the then-administration of PGMA, many of them believe that even the manner by which the prosecution was initiated: against 197 accused and hence, guaranteed to take forever, was a means to ensure impunity for the very influential family accused of committing the murders. But meanwhile, anent their claim for satisfaction in the form of apology and compensation, the Maguindanao victims, unlike their Hong Kong counterparts, could only fend for themselves since it is their own state that has decided against issuing to them an apology and paying them compensation.
Meanwhile, the fact that Hong Kong has already taken steps to espouse the claim of their nationals against the Philippine government can only be the source of envy for the victims of the Maguindanao massacre. For while their own government has denied them their rights as victims, at least their Hong Kong counterparts can still hope to get satisfaction and compensation. Perhaps there is solace for them in this thought.
Some clearly are luckier then others. Sad.
It took a celebrity to call attention to the inherent weakness of our criminal justice system. By now, only Filipinos in Mars have not heard of what happened to the comedian. Apparently, he visited a woman who speaks like Melanie Marquez. Then he was beaten black and blue, probably sexually humiliated, illegally detained and made to confess to a rape. He was brought to a police station in Taguig where remarkably, the police did not bother to inquire how he sustained his injuries and was not assisted to get medical assistance. Instead, the police blottered what the alleged woman victim claimed was an attempted or consummated rape. But because a rape is a personal crime and requires the consent of the woman to be initiated, no charge of rape was made. The woman declined to press charges against him.
BLOGGERS enjoy the same protection as journalists.
This was the recent ruling of the US Court of Appeals in the case of Obsidian Finance Group v. Cox. In this case, Crystal Cox, a blogger, claimed that Obsidian finance company was guilty of tax fraud. The US District Court earlier found Cox guilty of defamation and awarded the finance company $ 2.5 in damages. The lower court issued its ruling anchored on the assumption that since Cox is a blogger and not a journalist, a complainant in a defamation suit is entitled to the presumption of” legal malice or a presumption that the defamatory statement is presumed malicious.
Further, Cox, as a mere blogger is not entitled to invoke the definition of actual malice established in the New York Times vs. Sullivan case. The 1964 US Supreme Court ruling set the precedent for the rule that journalists can only be held liable for false information if they knew of its falsity or in utter disregard of the same. Ten years after Sullivan, the US Supreme Court ruled in Gertz v. Robert Welch that the First Amendment required only a “negligence standard for private defamation actions.”
First Amendment refers to an amendment to the Constitution of the United States guaranteeing the right of free expression that includes freedom of speech, freedom of the press; or the right of the people to peaceful assembly, and to petition the Government for a redress of grievances.
In ruling that bloggers are entitled to the same protection as journalists, the US Court of Appeals covering the jurisdiction of California ruled that the case involved an intersection between Sullivan and Gertz “an area not yet fully explored x x x in the context of a medium of publication—the Internet—entirely unknown at the time of those decisions”. Citing the US Supreme Court, the Appellate Court ruled:” that a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.”
The dilemma is precisely because of a lack of precision on who are in fact and in law – journalists. In fact, separate definition on who is a journalist indicates a lack of consensus even from those who profess to practice the profession. For instance, the United States Congress, in a draft of a Federal shield law, defines a journalist as “one who works for a traditional media organization for pay or gain”, a definition adopted as well by the UNESCO. This will exclude bloggers altogether from the protection of the proposed shield law. On the hand, the Human Rights Committee in its General Comment, defines “it is a function shared by wide variety of actors, including professionals full time reporters and analysts, as well as bloggers and others who engage in forms of self-publications in print, on the internet, or elsewhere”.
But outside the definition of who a journalist is, the actual distinction between a regular media outfit and bloggers is the existence of a hierarchy of editorial controls to ensure accuracy in the news and fairness in commentary. This is why traditional journalists themselves sometimes scoff at the notion that “just about anyone can be a journalist”. In fact, Philippine jurisprudence even distinguishes between the amount of latitude given to the media in making factual errors depending on whether it is a “weekly” or a “daily”, with the latter being given wider latitude for mistakes.
But all these miss the point. There is protection accorded by the bill of rights not just to freedom of the press, but to freedom of expression in general. The normative values of these two freedoms are identical: to discern the truth and to facilitate “open, robust and even virulent discussion of pubic issues”. If both freedoms have the same normative content, why should the courts distinguish between an input to the market place of ideas coming from one who earns a living by it and one who does so anyway as a public duty?
The US Court of Appeal’s decisions, in my view, correctly refused a distinction between institutional media and bloggers because to recognize such would also violate the equal protection clause. This is another constitutional guarantee that those similarly situated will be treated alike. Had the court limited the protection of freedom of expression to professional journalists alone, it would send the message that only professional journalists can contribute to the public debate on public issues. This is contrary to the basic tenet that freedom of expression is a human right and not just a right of journalists.
In any case, the fact that journalists are paid and bloggers are not does not constitute a real basis for distinction. In Abrams, Holmes wrote; “the true test of truth is the power of a thought to be accepted in the market place of ideas”. Certainly, Holmes did not write that only paid journalists could contribute to this market.
24 January 2014, Manila—
Center for International Law Philippines, Inc. (CenterLaw) hails the decision of the Pasay City Regional Trial Court not to issue a temporary restraining order (TRO) against an on-going international conference on reproductive health at the Philippine International Convention Center.
The 7th Asia Pacific Conference on Reproductive and Sexual Health and Rights is from January 21-24.
According to lawyer Harry Roque, “the non-issuance of a TRO is a victory for freedom of expression and upholds our Constitutional right to discuss important issues.” Roque Jr. argued in open court against the a TRO on behalf of conference organizer Philippine NGO Council on Population Health and Welfare, Inc. (PNGOC)
RTC Judge Petronilo Sulla, Jr. denied the TRO application of Pro-Life Philippines Foundation due to lack of merit.
“It shows to the world that in the Philippines, discussion on reproductive rights is robust in the free market place of ideas,” added Roque who is also CenterLaw Chairperson.