Major dailies, including the Inquirer in its May 5 editorial, have seen the materiality of Ruby Tuason’s proposed testimony, albeit opining that Tuason’s testimony is “inadequate.” The Inquirer asks: “[C]ouldn’t government prosecutors have pried this information out of Tuason even if she were an adverse witness?”
As part of the right against self-incrimination, an accused has the right not to take the witness stand. If Tuason is not granted immunity and hence impleaded as an accused, the prosecution cannot legally compel her to testify.
Case law teaches that the right of the defendant in a criminal case “to be exempt from being a witness against himself” signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a coaccused, or even for himself. His neglect or refusal to be a witness shall not in any manner prejudice or be used against him.
The main consideration in any grant of immunity is the importance of the testimony of a respondent who is not the most guilty. Not any respondent is entitled to immunity, however, even if they offer to return the plundered amount.
The restitution of pecuniary liability is not a required provision in an immunity agreement. In this case, as Tuason volunteered to return the amount, the Ombudsman saw it prudent to include the clause, as the latter is empowered by law to determine the terms and conditions of the agreement. Had it not been included in the agreement, there would be no other way of demanding that Tuason immediately return the amount.
The extant testimonial or documentary evidence does not furnish the exact amount or present a basis for this office to determine how much Tuason actually received. At all events, the government had risked computing and arrived at P31.15 million which is 5 percent of the subject PDAF amounts of Sen. Juan Ponce Enrile (P345 million) and Sen. Jinggoy Estrada (P278 million)—or P17.75 million which is 5 percent of the alleged kickbacks of Enrile (P172 million) and Estrada (P183 million), with which transactions Tuason claimed she had a hand. Criminals do not write down their lawless plans and plots, and the courts acknowledge this dictum when they decide cases. And this makes the testimony of Tuason even more credible, rather than inadequate.
The objective of a grant of immunity is to make the case stronger. The quantum of evidence required in preliminary investigation is only “probable cause” before filing a criminal case in court. When a case reaches the Sandiganbayan for trial, the quantum of evidence needed to convict an accused is already “proof beyond reasonable doubt.” The essence of the exercise of the power to grant immunity is sacrificing a useful small fish in order to compellingly convict the big fish.
The apprehension that the Ombudsman is sending a wrong message is just that, an apprehension.
—ASRYMAN T. RAFANAN,
spokesperson and assistant ombudsman,
Office of the Ombudsman