Zaldy Ampatuan’s bid for lifetime immunity

Zaldy Ampatuan’s offer to testify in exchange for witness protection conveniently confuses fundamental legal issues — and enables him to buy lifetime immunity from punishment for the Maguindanao massacre.

The hocus-pocus is this: Ampatuan wants to testify on one crime (election fraud) but buy immunity for another crime (the massacre). That is not contemplated by the law, but I share lawyer Harry Roque’s sense of just how Ampatuan plans to do it.

There are two possible legal regimes for an accused who turns his back on his cohorts and offers to testify in support of the prosecution: on one hand, discharge of an accused to be a state witness and, on the other, the Witness Protection Program that provides sanctuary to a witness in fear of his safety.

Notice that WPP applies both to the turncoat co-accused (the “state witness”) and the bystander who merely saw it happen, will speak out, but is afraid for his safety.

The first legal regime is the “Discharge of accused to be state witness” under the Rules of Court. This “operates as acquittal … and shall be a bar to future prosecution for the same offense” unless of course the accused does not deliver on his promised testimony.

The second legal regime is the Witness Protection Program or RA 6981 under which the witness is given security protection for himself and his family, including housing and allowances and other financial assistance. Both legal regimes give immunity to the turncoat/state witness only for the offense in which the testimony is given.

If Ampatuan is truly serious about making a clean breast of how Gloria Macapagal-Arroyo cheated Fernando Poe Jr. of the presidency in 2004, why doesn’t he apply to be discharged as a state witness? I can imagine several reasons.

One, as a state witness, he will first have to be charged as an accused in this case before he can be “discharged” if he offers valuable testimony. However, under the WPP, he need not even be charged at all. In fact, the prosecutor “is required not to include the Witness [as an accused] in the criminal complaint.”

Two, he would need the approval of the court to be discharged as a state witness, since he has already been included in the charge. But to be placed under witness protection, he would need only the approval of the prosecutor (a weakness already pointed out by UN Special Rapporteur Philip Alston, who felt this unduly politicized the process) or, if already charged, the court is duty bound to “order [his] discharge and exclusion [as an] accused.”

Third, discharge as a state witness requires very high standards, among others, that there is “absolute necessity” for the witness’ testimony; there is “no other direct evidence available”; his testimony is “substantially corroborated in its material points”; and he “does not appear to be the most guilty.”

While the WPP adopts the same high standards for the turncoat witness, it lowers the standard for the bystander witness, among others: that the crime involved be serious enough; his testimony is “substantially corroborated in its material points”; and there are genuine threats to his or his family’s safety.

While Zaldy Ampatuan was certainly no bystander in the Maguindanao massacre, it is unclear at this stage if he purports to be a direct participant or bystander in GMA’s election fraud.

Fourth, and this is the clincher, either way Ampatuan gains immunity only from prosecution for the offense in which his testimony is given, but the WPP offers even broader protection. The duration of WPP protection is phrased thus: “To have a secure housing facility until he has testified or until the threat, intimidation or harassment disappears or is reduced to a manageable or tolerable level.”

The logic of the WPP is perfectly understandable. If the goal is to encourage witnesses to step forward and tell the truth, the witness must be assured of sanctuary for as long as his safety and that of his family is in peril.

And if Ampatuan qualifies for witness protection for his testimony on GMA’s election fraud and he is subsequently convicted for his participation in the Maguindanao massacre, the WPP sanctuary will prevail over the arrest and commitment order to send him to Muntinlupa.

After all, he offered his truth in exchange for his safety. If we already have his truth, to send him to jail is tantamount to lifting all his protection and sending him to sure death.

That is why I say it again: If Ampatuan is truly serious about telling the truth about GMA’s fraud, let him do it via “discharge as a state witness.”

Frankly I doubt that he will thus qualify since GMA’s co-conspirators have begun to crawl out of the woodwork to speak out on their dark scheme to cheat FPJ, and there is no “absolute necessity” for his testimony since there is “other direct evidence” now available.

But if he still does qualify, he will be immunized from punishment only for the crime of election fraud, rather than for the murders of 58 innocent civilians in Maguindanao.

But for him to claim sanctuary under the WPP, he can be treated possibly as a mere bystander in election fraud and remain un-charged for that crime, still qualify for witness protection, and for as long as his safety is in jeopardy—which can be a very very long time—enjoy 24-hour security at government expense plus housing and financial assistance for himself and his family—even after he has been convicted for the massacre.

Upham Suwaib, the self-confessed Ampatuan henchman during the massacre, was assassinated after he was interviewed on Al-jazeera TV but before he qualified for witness protection. It must be one of the sadder ironies of Philippine justice that the quintessential state witness is dead and buried, and now an Ampatuan seeks witness protection.

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