Is Ruby Tuason free of criminal liability?

Ruby Tuason, who has been charged with plunder in the Office of the Ombudsman (OOO) by the Department of Justice (DOJ), executed an affidavit detailing her participation in the crime, implicating some of her alleged coconspirators and offering to return her share of the loot, which she admitted to the Senate blue ribbon committee as about P40 million. Is she now free of criminal liability?

DOJ’s role. My short answer is: No, not yet. But to begin with, Justice Secretary Leila de Lima granted her the benefits of the government’s Witness Protection Program (WPP) on condition that  she would testify and be cross-examined in court to validate her affidavit.

The DOJ, with the backing of Malacañang, believes that Tuason’s affidavit and putative testimony would corroborate, affirm and strengthen the charge against the principal offenders and would result in their conviction in what is expected to be a long and tedious litigation.

The WPP Law (Republic Act No. 6981) authorizes the DOJ to extend several benefits to potential witnesses and their immediate family, including free housing, 24-hour security, financial assistance, traveling expenses, medical treatment, and if needed, “relocation and/or change of identity at the expense of the Program.”

Witnesses who participated in the crime (like Tuason) must “not appear to be the most guilty.” Admission into the program entitles the witnesses “to immunity from criminal prosecution” provided they comply with their undertakings in the “memorandum of agreement” they executed with the DOJ.

Ombudsman’s role. To repeat, Tuason has been included as a respondent in the plunder complaint filed in the OOO by the DOJ. Thus, the DOJ can no longer exclude her from the complaint because the OOO has assumed jurisdiction over the case.

In cases involving public officials and their coconspirators (who may be private people), the OOO, as a rule, conducts the preliminary investigation; it therefore has the discretion to determine the existence of probable cause and to select who should or should not be charged in the Sandiganbayan (SBN).

Consequently, it is the OOO that has the prerogative to determine whether to include her in any information (or charge sheet) it may file in the SBN. A separate law (RA 6770) authorizes the OOO to grant immunity to coperpetrators. In short, Tuason’s immunity from prosecution depends on the OOO, no longer on the DOJ.

Sandiganbayan’s role. If the OOO decides to include Tuason in the information, the SBN—per the Rules of Court—may still discharge her as an accused, “provided the court is convinced” that (a) there is absolute necessity for her testimony, (b) there is no other available direct evidence, (c) her testimony can be substantially corroborated, (d) she does not appear to be the most guilty, and (e) she has not been convicted of any offense involving moral turpitude.

Once the information that includes her is filed, Tuason, like all the other accused, may be arrested and detained, possibly in the WPP safe house, because plunder is a capital and “nonbailable” offense. Moreover, the SBN can require the OOO to present evidence to “convince” the court that the five requisites had been complied with. However, once discharged by the court to become a state’s witness, she would be released from detention.

A discharge made by the court shall amount to an acquittal of the discharged accused and shall be a bar to future litigation for the same offense. In short, courts grant acquittal to the discharged accused while the DOJ and the OOO give merely “immunity from prosecution.”

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More on DAP. I wrote last Sunday that, as I retired jurist, I would not venture an opinion on whether the cases involving the Disbursement Acceleration Program should now be dismissed for having become “moot and academic” because the Supreme Court has not finished hearing the parties. Another oral argument is set on Feb. 18.

But enterprising readers googled my Separate Opinion in Sanlakas vs Exec. Sec. (Feb. 3, 2004) which said that a mooted case “capable of repetition yet evading review” may still be decided by the Court “provided the party raising it has been, or continues to be, prejudiced or damaged…”

Consequently, venturing an opinion now is premature since the parties have not completed their arguments. I need to see whether the petitioners have been personally prejudiced or injured by the government’s mooted actions.

Others perceptively opined that petitioners have not shown any direct personal injury; ergo, the DAP cases should now be dismissed for having become moot and academic. For the future guidance of our officials, I think the Court, while dismissing the mooted petitions, may still tackle two important issues: (1) the nature of the savings that can be realigned, and (2) the validity of cross-border transfer of funds.

The Court made this hybrid disposition in Lacson vs Perez (May 10, 2001) when it dismissed the mooted cases but “enjoined [the government] from arresting the petitioners … without the required judicial warrants…” Both the Sanlakas and the Lacson cases were taken up in my said column.

Many now know that my writings are not intended to spoon-feed readers. I expect them to reach their conclusions on the basis of the discussions I present. I do not wish to mesmerize them into adopting my opinions. Rather, I prefer them to analyze, think and make their own conclusions. I humbly believe that this is the better way of opining and teaching.

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