Wednesday, October 23, 2013
Will JLN Bare it All or Will a Senate Contempt Reward Her?
As the Nation awaits the appearance of Janet Lim-Napoles (JLN), alleged mastermind of the 10-billion PDAF scam, before the Senate Blue Ribbon Committee on Nov. 7, 2013 presumably to testify on what she knows of the issue under investigation, speculations and analyses on whether she would bare all or whether she should be made a State Witness, thereby affording her immunity from prosecution, to cajole her into naming the lawmakers, executive officials, and private person she had conspired with and bribed, have swirled in the papers and online publications.
One senator opines that Janet Lim-Napoles should be made a State Witness citing the committee’s power and the fact that it had done so in the past, arguing that the country’s quest for truth about who among the government officials and private persons she colluded with in carrying out the elaborate scheme should justify letting her off the hook.
Another says the fact that she is already under detention on a charge of the illegal detention of her erstwhile trusted operator, and cousin Benhur Luy emasculates the coercive nature of the Senate committee’s contempt power as there is no incentive in avoiding the same –you can’t compel her under threat of detention if she refuses when she is detained elsewhere anyway.
Yet another senator even provides more color by hunching that she may even deliberately court senate contempt by refusing to answer any question so that the committee would detain her in the chamber’s holding room, citing the air-conditioned room, better amenities, possible internet and pc use are enough lure to escape her less desirable detention in a Police’s Special Action Force camp in Sta. Rosa Laguna.
These could spark a debate and even protest among the readers, so let’s give each of the above a short discussion.
On the issue of making her a state witness, it is worth noting that not every one (of the accused) may be made a state witness. Even the courts, upon which the power to discharge is bestowed as an exercise of its jurisdiction, on proposal and initiation of the prosecutor, have to be satisfied with the requirements of the law.
So who can be a State Witness? Section 9, Rule 119 of the Rules of Court provides enlightenment, to wit:
“Sec. 9. Discharge of accused to be state witness.
When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, 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;
(e) Said accused has not at any time been convicted of any offense involving moral turpitude.
Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as State Witness, his sworn statement shall be inadmissible in evidence.”
Is there absolute necessity for JLN’s testimony? This is answered by the answer to question no 2. It would not be difficult for the judge, on whom such determination is charged, to give a negative answer to question number one owing to the positive answer in question number two, and obviates answering question number three.
Put another way, there is no necessity, much less ABSOLUTE necessity, because there are whistleblowers who have similar firsthand detailed accounts of JLN’s inner workings such that their testimonies are enough to sustain conviction of the accused, including JLN.
On question number four, even considering that the law does not require that the person sought to be discharged be the LEAST GUILTY, but simply not the most guilty, JLN hardly seem to be lesser guilty than the other co-accused, she having masterminded the scam based on testimonies of the whistleblowers. If at all, she could ONLY BE equally guilty as her co-accused.
Lastly, whether she had been convicted of any offense involving moral turpitude, we have not heard the DOJ, the Court, or the Ombudsman making any pronouncement on the issue, but even on the first four requisites, JLN would not qualify as a State Witness.
Why others are floating the idea, no one really knows for sure what the real score is. Certainly, the public who has since been dumbfounded by the scale of the scam of which JLN et al. stand accused, would never sit idly if the ombudsman would eventually propose or resolve to discharge her as an accused in favor of her testifying for the State. Plainly, the tradeoff is unwarranted.
On another senator’s suggestion that the Senate contempt power and its consequent order of detention could hardly compel JLN because she is detained anyway already. Not true at all, let us remember that for time spent under preventive imprisonment she gets to earn the entire time or eighty percent thereof, as the case may be, as credit against her eventual sentence (Article 29, Revised Penal Code or RA 3815). The same is not true, though, if she were detained as a consequence of the senate committee citing her in contempt, for the latter is not deprivation of liberty in relation with the crime for which she is being presently detained (Serious Illegal Detention of Benhur Luy), and it is by order of another institution (the Senate), other than that issuing the commitment order (the courts).
On yet another senator’s banter that she might deliberately court Senate’s contempt preferring to be detained in the senate chamber apparently for its better condition, the Senate is not obliged to extend to its detainee the privilege to use and enjoy all its amenities. A detainee, certainly, and more importantly in this case one who is not a public official, or as the upper house would love to call it, a co-equal branch, does not annex to his/her rights the enjoyment of comforts available in a place of detention, which happens to be, this time, the Senate. After all, the Senate is not a correction facility, and the purpose of detention is correction, a penalty, not vacation or sort of reward.
Truth be told, there should be no pressure on the State to extend all sorts of accommodation to JLN. As things stand now, she is an accused, she must be treated like one.