Court has final say on Tuason as state witness

OMBUDSMAN. Ruby Tuason speaks briefly with Ombudsman Conchita Carpio-Morales and Justice Secretary Leila de Lima at the Ombudsman's office on Friday, February 7. Photo by Ben Nabong/Rappler

OMBUDSMAN. Ruby Tuason speaks briefly with Ombudsman Conchita Carpio-Morales and Justice Secretary Leila de Lima at the Ombudsman's office on Friday, February 7.

Photo by Ben Nabong/Rappler

MANILA, Philippines – Self-confessed pork barrel conduit Ruby Chan Tuason will have to be indicted first as an active participant in the Priority Development Assistance Fund scam before she can qualify as state witness. (READ: Ex-Erap aide wants to turn state witness)

A former Supreme Court justice and two incumbent Sandiganbayan justices separately told Rappler that only the court – in this case, the Sandiganbayan – can declare Tuason as a state witness upon the recommendation of the Ombudsman.

“She will have to be charged first. Once the information or the formal charge is filed before the court, then the Ombudsman will have to inform that she is being turned into a state witness,” retired SC justice and constitutionalist Vicente Mendoza explained. (Editor's note: We earlier wrote Jose Mendoza. We apologize for the error.)

Mendoza said that for the purpose of the criminal process, “the information will have to be filed first, and then the prosecution will inform the court about her application as state witness. This status is subject to the approval of the court. ”

Ultimately, the court has the final say, the former magistrate said. “It depends on the court.”

Not for DOJ to say

A member of the anti-graft court, for his part, castigated Department of Justice Secretary Leila de Lima for describing Tuason as a “provisional state witness.” (READ: Tuason a 'provisional' state witness)

“It is not for the DOJ to say or determine whether one is a state witness. Such determination lies with the Ombudsman, subject to the approval of the court,” the Sandiganbayan justice said.

In the first place, there is no absolute assurance that  Tuason can be declared a state witness until after the court has determined that she meets all the requirements stated in the Rules of Court.

“The court will determine if she is least guilty, that her testimony is materially substantive. What if the court says otherwise? What if the court determines she is equally liable as a mastermind to a crime?” the justice pointed out.

The magistrate also explained that being admitted to the Witness Protection Program and being declared state witness by the court are two different things.

The DOJ has full powers on who could be admitted to the WPP, under the Witness Protection, Security and Benefit Act. Persons taken into the program, however, are not necessarily among the accused. On the other hand, the application as state witness is the domain of the court.

Jail time for Tuason?

Another Sandiganbayan justice said that being indicted means that Tuason will have to be arraigned and enter her plea first, before the court can entertain her application as state witness.

"Being state witness presupposes that the goverment is tapping one accused, presumably the least guilty, for the conviction of the case. Apart from being the least guilty, the court will have to determine if conviction cannot be secured without the testimony of the one applying as state witness," the magistrate said.

While the court considers the application, the magistrate raised the possibility of Tuason spending some time in jail. "Remember that a plunder charge is a non-bailable offense. Will she be among those to be jailed while the court studies her application for state witness? The answer is yes. She will have to spend time in jail until the court declares her as state witness."

Her stay in jail will depend on how long the Sandiganbayan resolves her application.

The possibility of Tuason being jailed could probably explain why the DOJ is describing her as provisional state witness. "But there is no such thing as a provisional state witness."

One option is for the DOJ to file an amendment to the complaint before the Ombudsman removing Tuason as one of the accused. "But I do not think the DOJ should do that," the justice opined.

Criminal liability

After months on the lam, Tuason returned to the country to face the charges against her. She faces two complaints before the Ombudsman – one for the pork barrel scam and the other, the P900-million Malampaya Fund misuse, both allegedly perpetrated by Janet Lim Napoles as mastermind.

Napoles is now in jail in connection with the illegal detention case filed by her cousin and former staff, Benhur Luy. Luy is the principal whistleblower in the pork barrel scam controversy. 

If Tuason is discharged as accused and turns state witness, “then she is immune from the criminal aspect of the case.”

However, it does not mean Tuason cannot face civil liability, which may include reparation for damages to the government in connection with the crime. 

Lawyer Dennis Manalo, private counsel for Tuason, said that his client "is willing to return whatever amount she got” from the pork barrel scam. Tuason was the alleged conduit for senators Jinggoy Estrada, Juan Ponce Enrile and his resigned chief of staff, Jessica Lucila “Gigi” Reyes. (READ: Ruby Tuason to back pork whistleblowers)

He insisted that “there was no bargaining agreement” between his client and the DOJ for her decision to tell all in the pork barrel scam. – Rappler.com