EVEN before the alleged ringleader behind the P10-billion pork barrel scam, Janet Napoles, appears at the Senate Blue Ribbon Committee hearing, many people are already predicting that the next week’s scheduled inquiry will turn out to be a dud.
They claim the Senate hearing is just a ‘moro-moro’ (charade) meant to take the heat away from Malacañang’s controversial Disbursement Acceleration Program (DAP)—the so-called pork barrel fund of the Aquino administration. This after the recent pronouncement of Blue Ribbon committee chairman, Senator TG Guingona, thumbing down the proposal of Senator Serge Osmeña to grant Napoles immunity from prosecution.
We can certainly understand why some folks are skeptical about the real agenda of Guingona in requiring Napoles to appear in the Senate investigation knowing that, in all likelihood, she would “take the Fifth.”
After all, unless Napoles can be compelled to tell-all during the hearing, the legislative panel’s investigation would be nothing more than a publicity stunt and a waste of time and taxpayers’ money.
That Napoles will invoke her constitutional right against self-incrimination when she faces the Senate panel on November 7 is a foregone conclusion. Her lawyer confirmed as much, arguing that the Senate is not the appropriate venue for Napoles to give her testimony.
However, the vice-chairman of the Blue Ribbon committee, Senator Osmeña, believes that an offer of immunity to Napoles might get her to squeal on the lawmakers and government officials who benefited from her multibillion-peso scheme.
Osmeña’s view is shared by Senate President Franklin Drilon—a bar topnotcher and ex-partner at a well-known Manila law firm—who said that the Senate committee could grant immunity only in such a way that Napoles’ testimony at the hearing may not be used against her.
“That’s in the law, in the Witness Protection Program,” Drilon said. “But that doesn’t mean she’s already absolved because there are many other pieces of evidence that may be presented,” the Senate President added.
On the other hand, Guingona—who, incidentally, is also a lawyer—claimed that only the courts can grant immunity to Napoles and not the Senate.
According to Guingona, the Senate cannot grant immunity outside of its jurisdiction. “Kapag immunity against criminal prosecution, wala na pong jurisdiction diyan ang Senado. (if it’s immunity against criminal prosecution, the Senate no longer has jurisdiction over that). It is only the court that can decide when it comes to criminal issue,” Guingona said.
Curiously, Guingona’s stand echoes that of Napoles’ lawyer who says that an offer of immunity from lawsuit can only come from a court and not from a legislative body like the Senate.
Napoles’ lawyer also says that the Senate cannot even recommend immunity from criminal prosecution for a witness in its investigations in aid of legislation, owing to the principle of separation of power among co-equal branches.
But several constitutional law experts we’ve talked to are dumbfounded and dismayed at the stance of Guingona and Napoles’ lawyer.
The power to grant immunity, the experts said, is an inherent power of Congress necessary to exercise its legislative function. It can be exercised by Congress even without a statute like the witness protection law.
They add that the grant of immunity has long been recognized in Philippine jurisprudence.
There are two types of immunity that can be granted to a witness: transactional immunity and testimonial or “use-and-derivative-use immunity.”
With transactional immunity, a witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction.
In contrast, “use” immunity only assures the witness that his or her particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution. This is the type of immunity that Drilon suggests be given to Napoles.
Many constitutionalists agree that the grant of testimonial or “use” immunity is an indispensable tool of congressional investigations. Why? Because once given, a witness can no longer invoke the right against self-incrimination.
They also point out that our Congress was, in large part, modeled after the United States Congress where testimonial or use immunity orders are widely used for major probes even while parallel criminal investigations or prosecutions are on-going.
Other legal scholars, for instance, cite the 1986 Iran-Contra scandal involving the sale by Reagan administration officials of military hardware to Iran in order to fund Nicaraguan rebels. During its probe, the US Senate’s Iran-Contra committee depended heavily on the use of immunity grants to build their investigation.
They see no reason why Guingona could not—or would not—do the same in the case of Napoles.
The way we see it, however, our experts may be barking up the wrong tree.
Perhaps they ought to realize that the Blue Ribbon hearing was not really meant to uncover anything, but rather, to cover something up.