Sunday, September 13, 2009

Live to tell: The Witness Protection Program

By Obiter07

Just last week, a witness to a double-murder was killed as he was set to testify.[1] One wonders what he was doing out in the open, considering how powerful the people he was set to witness against are. We do have laws on witness protection which he should have been made a part of.

Admission into the Program

REPUBLIC ACT NO. 6981 is the "Witness Protection, Security and Benefit Act" which is to be implemented by the Department of Justice (Section 2). Witnesses in criminal cases or in legislative investigations may be admitted to the program. Noteworthy is the fact that police officers cannot be admitted to the program but their families can be:

“SECTION 3. Admission into the Program. — Any person who has witnessed or has knowledge or information on the commission of a crime and has testified or is testifying or about to testify before any judicial or quasi-judicial body, or before any investigating authority, may be admitted into the Program:

Provided, That:

a) The offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code, or its equivalent under special laws;

b) His testimony can be substantially corroborated in its material points;

c) He or any member of his family within the second civil degree of consanguinity or affinity is subjected to threats to his life or bodily injury or there is a likelihood that he will be killed, forced, intimidated, harassed or corrupted to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony; and

d) He is not a law enforcement officer, even if he would be testifying against the other law enforcement officers. In such a case, only the immediate members of his family may avail themselves of the protection provided for under this Act. [underline supplied]

If the Department, after examination of said applicant and other relevant facts, is convinced that the requirements … have been complied with, it shall admit said applicant to the Program, require said witness to execute a sworn statement detailing his knowledge or information on the commission of the crime, and thereafter issue the proper certification …

SECTION 4. Witness in Legislative Investigations. — In case of legislative investigations in aid of legislation, a witness, with his express consent, may be admitted into the Program upon the recommendation of the legislative committee where his testimony is needed when in its judgment there is pressing necessity therefor: Provided, That such recommendation is approved by the President of the Senate or the Speaker of the House of Representatives, as the case may be.”

A prospective witness is required to execute an agreement setting forth his responsibility to testify, avoid crimes, take necessary precautions, comply with legal obligations and judgments, cooperate and inform the authorities of his current activities and address (Section 5). He can be discharged from the Program for breach thereof upon notice (Section 6). Admission to the Program is, of course, confidential (Section 7).

Program Rights and Benefits

What does the witness get? He can get housing, relocation, a new entity, and even paid leaves on top of security of tenure. Section 8 provides:

SECTION 8. Rights and Benefits. — The witness shall have the following rights and benefits:

a) 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. When the circumstances warrant, the Witness shall be entitled to relocation and/or change of personal identity .... This right may be extended to any member of the family of the Witness within the second civil degree of consanguinity or affinity (i.e., including the witness’ grandparents and uncles and aunts).

b) The Department shall, whenever practicable, assist the Witness in obtaining a means of livelihood. The Witness relocated … shall be entitled to a financial assistance … for his support and that of his family in such amount and for such duration as the Department shall determine.

c) In no case shall the Witness be removed from or demoted in work because or on account of his absences due to his attendance before any judicial or quasi-judicial body or investigating authority, including legislative investigations in aid of legislation, in going thereto and in coming therefrom: Provided, That his employer is notified through a certification issued by the Department, within a period of thirty (30) days from the date when the Witness last reported for work: Provided, further, That in the case of prolonged transfer or permanent relocation, the employer shall have the option to remove the Witness from employment after securing clearance from the Department upon the recommendation of the Department of Labor and Employment.

d) Any Witness who failed to report for work because of witness duty shall be paid his equivalent salaries or wages corresponding to the number of days of absence occasioned by the Program …

e) To be provided with reasonable traveling expenses and subsistence allowance … in such amount as the Department may determine for his attendance in the court, body or authority where his testimony is required, as well as conferences and interviews with prosecutors or investigating officers.

e) To be provided with free medical treatment, hospitalization and medicines for any injury or illness incurred or suffered by him because of witness duty ….

f) If a Witness is killed, because of his participation in the Program, his heirs shall be entitled to a burial benefit of not less than … P10,000.00 … exclusive of any other similar benefits he may be entitled to under other existing laws.

g) In case of death or permanent incapacity, his minor or dependent children shall be entitled to free education, from primary to college level in any state, or private school, college or university as may be determined by the Department, as long as they shall have qualified thereto.

One can ask though, is there any other tolerable or manageable level of threat that is less than zero?

State Witness under the Program

How do you get to be state witness and be eligible for the Program? With the exception of the grave felony offense, the Program conditions below are exactly the same as those required of would-be state witnesses under the Rules of Court:

SECTION 10. State Witness. — Any person who has participated in the commission of a crime and desires to be a witness for the State, can apply and, if qualified … shall be admitted into the Program whenever the following circumstances are present:

a) the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code or its equivalent under special laws;

b) there is absolute necessity for his testimony;

c) there is no other direct evidence available for the proper prosecution of the offense committed:

d) his testimony can be substantially corroborated on its material points;

e) he does not appear to be most guilty; and

f) he has not at any time been convicted of any crime involving moral turpitude.

Before admission, he is to execute a sworn statement “describing in detail the manner in which the offense was committed and his participation therein.” If the DOJ is satisfied, he can be admitted to the program but if denied, his sworn statement “shall not be admissible in evidence, except for impeachment purposes (Section 11).”

Upon admission, the prosecutor is required not to include the witness in the criminal complaint or information or to petition for his discharge as state witness. Admission entitles him to immunity from criminal prosecution for the offense in which testimony is to be used (Section 12). He is not freed from his participation in any other crime by virtue of his testimony. He is liable for contempt if he fails to testify. If he falsely or evasively testifies, he can be prosecuted for perjury. His immunity may also be removed and his enjoyment of rights under the Act terminated (Section 13). Harassment of witnesses is punishable by a fine of P3,000 or imprisonment of not less than six (6) months but not more than one year (Section 17).

How long can you remain protected? The law is not so clear on this but the proceedings in which the witness is to testify should, as much as possible, be finished within 3 months from filing (Section 9). However, this is not an absolute requirement. It would seen that being a state witness is almost akin to being a criminal on the run, watching your back all the time, and changing your routine. Only this time, you are not watching out against the police but your fellow former comrade criminals.

Pointing fingers is not easy especially when you share the burden of guilt. But if there is no other way to get justice, the law allows the use of participants to the crime, to at least get the most guilty. To get someone behind bars, another criminal may have to go free and live on the public’s tab if need be.

Related Post

Singing for your life (Turning State’s Witness)

[1] Bordadora, Witness in Dacer case killed, Philippine Daily Inquirer, First Posted 15:06:00 09/02/2009.


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