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Thursday, January 18, 2007
Whistleblowers lack state help
By Karlon N. Rama With Jovy S. Taghoy & Katrina N. Tabanao
CEBU CITY -- The impending trial of Bernard Liu reveals loopholes in the government's handling of witnesses in congressional hearings. If a whistleblower can be sent to jail for the things he reveals, who'd want to sit in the witness chair?
Bernard Liu, sitting detained at the Criminal Investigation and Detection Group (CIDG) since his arrest Tuesday morning, begs the answer.
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"Pait ning gobernoha (this government is hopeless)," he said in an interview after his arrest.
"Hinaut nga tabangan ta sa gobyerno. Kita ang mi-witness, gikiha na nuon ta. Makatagam (I hope the government helps me. I served as a witness and I end up getting charged)," he lamented.
But Regional State Prosecutor and law professor Antonio Arellano said the law does protect people like Liu.
He explained that the law that created the justice department's Witness Protection Program covers witnesses testifying before legislative bodies, like the House committee on dangerous drugs.
Protection
And what about after?
"The Constitution and the laws are more than sufficient to protect the rights of the individual and that of the state," he said.
Republic Act 6981 covers "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, or before any investigating authority."
It only requires that the offense the witness will testify about is a grave felony, that it can be corroborated in its material points, and that he or she or the immediate family is being threatened.
Section 4 covers "witnesses in legislative investigations."
"In investigations in aid of legislation, a witness, with his express consent, may be admitted into the (witness protection) program upon the recommendation of the legislative committee where his testimony is needed, when in its judgment there is pressing necessity therefore," it reads.
It requires that the Senate president or the speaker of the House of Representatives approve the recommendation.
Escorts
Coverage includes armed escorts during the investigation, housing in a secure location until the resolution of the case and, after the hearing, relocation.
But neither Liu, nor fellow witness Ananias Dy, ever got admitted into the program.
The legislative body they testified before in 2001, headed by Rep. Antonio Cuenco (Cebu City, south) didn't seek that they be included in the witness protection program. The program has existed since 1991.
Liu said he knew the risk when he and Dy decided to testify against their former employers, brothers Peter and Wellington Lim.
When asked about the death of Dy, who was gunned down last July 8, 2006, Liu said he spoke with the other witness a day before the attack. He said Dy confided to him about unidentified, motorcycle-riding men who had been following him.
"Ako siyang gitambagan nga di magkompyansa kay kita man ang mi-witness, delikado ta (I told him not to let his guard down because, as witnesses, our lives are in danger)," Liu said.
Testimony
Liu testified before the House committee on dangerous drugs in 2001 and implicated his former employer, businessman Peter Lim, in the illegal drugs trade.
He said he smuggled drugs into the Mactan-Cebu International Airport for his boss at least four times. In 2003, after the inquiry was terminated, four criminal cases were filed against him before the Regional Trial Court (RTC). All were based on his admission.
Lim has denied the testimony and was never charged.
Two of the cases against Liu, which ended up with Judges Meinrado Paredes of RTC 14 and Gabriel Ingles of RTC 58, got dismissed for lack of basis.
One got assigned to Judge Silvestre Maamo Jr., and was archived when the judge asked that the cases be consolidated.
Only the fourth, which got raffled to de Gracia, got upgraded for a full-blown trial. De Gracia issued Liu's arrest warrant.
In an interview Wednesday, the judge said he welcomed Cuenco's plan to file an administrative complaint against him over an allegedly "unjust judgment" on Liu.
Immunity
But de Gracia asked why Cuenco is running after him and not after those who recommended that the case be filed in court.
De Gracia also clarified that he found probable cause against Liu not because of his testimony before the House committee.
Liu, the judge pointed out, executed an affidavit before the National Bureau of Investigation (NBI), where he acknowledged that indeed he brought drugs in the country.
"Where is the immunity there? The NBI headquarters is not within the halls of Congress where he can be covered by parliamentary immunity," de Gracia said.
That issue is best left to the judge to decide, Arellano commented.
It is already pending," he said.
Other lawyers pointed out that Liu should just go though the process.
They said he should have himself arraigned, petition for bail and, through his lawyers, move for the dismissal of the case by attacking the evidence of the prosecution.
Voluntary
They said he could pursue the parliamentary immunity angle, as his testimony did stem from a House investigation, and invoke his right not to incriminate himself.
But, they pointed out, this can only be done in trial.
If he convinces the court, the case against him disappears forever because, after his arraignment, the double jeopardy rule now applies- he can no longer be charged with another case stemming from the same incident.
Peter Lim's lawyer, Oliveros Kintanar, is raring to go and is standing up for Judge de Gracia's ruling to hold Liu for trial.
He said it was those other judges who dismissed the case that got things wrong.
He believes that Liu enjoys no immunity from suit because his testimony before the House committee wasn't covered by parliamentary immunity.
Moreover, he added, de Gracia had no other option but to order Liu arrested for the trial because "the evidence of guilt against him is strong."
"What evidence could be stronger than an admission that was voluntarily given?" Kintanar posed.
Malice
He argued that absolute parliamentary immunity only covers members of Congress.
Witnesses like Liu, he argued, only enjoy conditional immunity-if the testimony the witness gives is found tainted with malice, the immunity ceases to exist.
"In this case, the testimony was very malicious. They lost their jobs beforehand and filed a labor case in the NLRC (National Labor Relations Commission) against my client. They testified against my client only after somebody offered to help them in the labor case," Kintanar alleged.
The document submitted to de Gracia as evidence was not prepared and signed during the inquiry but at the NBI headquarters, he added.
But Kintanar said the biggest point in the case against Liu was his voluntary admission that he smuggled drugs into the airport on four occasions.
"He dropped the name of my client but this was never proven. What stands now is his admission. And what evidence is stronger than that?" he argued. (Sun.Star Cebu)
For more Philippine news, visit Sun.Star Dumaguete. (January 18, 2007 issue)
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