Should state witness applicants return ill-gotten wealth?

Remulla acknowledged that it isn't in the law, but returning ill-gotten wealth is an important step.

"Hindi lang po batas ang nagdidictate nito. It's also what's morally right and what is expected of us," he said. "'Yan po kasi, kahit hindi inilagay sa batas, given po 'yan sa ating lipunan."

Marcoleta insisted that restitution isn't a legal requirement for becoming a state witness, but Remulla stood his ground.

"This is a financial crime... I think it is just right," Remulla said.

Previously, Remulla said top government contractors Sarah and Curlee Discaya, who were applying for state witnesses, must first return the money they allegedly amassed as "first principle."

State witness conditions

Republic Act No. 6981, or the "Witness Protection, Security and Benefit Act," and the Revised Rules of Criminal Procedure, state the conditions of becoming state witnesses.

Rule 119 Section 17 of the Revised Rules of Criminal Procedure states that if two or more persons are jointly charged with the commission of any offense, the court may direct one or more of them to serve as witnesses under the following conditions:

• There is absolute necessity for the testimony of the accused whose discharge is requested
• There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused
• The testimony of said accused can be substantially corroborated in its material points
• Said accused does not appear to be the most guilty
• Said accused has not at any time been convicted of any offense involving moral turpitude

Aside from these five conditions, RA 6981's Section 10 also requires that the offense for which a would-be state witness's testimony will be used is a grave felony, as defined under the Revised Penal Code or its equivalent under special laws.

Of all the conditions, appearing as not the most guilty is considered the most important.

'There is a legal basis'

Just as Remulla noted, the law says nothing about restitution being an explicit part of the condition for becoming a state witness.

Retired Supreme Court associate justice Antonio Carpio, however, said there's a legal basis for it, according to veteran journalist Marites Vitug's Facebook post on Sept. 24.

Vitug said that according to Carpio, contractors came into possession of government funds without a legal basis or without valid consideration, as their flood control projects were non-existent, substandard, or overpriced.

"The district engineers have admitted rigging the bidding, so the contractors must return without delay what the government paid them. Otherwise the contractors will be unjustly enriched."

Carpio cited Article 22 of the Civil Code, which states, "Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him."

He also cited Section 5(d) of RA 6981, which requires the person accepted as a state witness "to comply with legal obligations and civil judgments against him."

"The return of government money unjustly or unlawfully obtained is a legal obligation," the analysis read. "There is no need for a court order if the government and the witness can amicably agree on the amount. To wait for the finality of a civil judgment will take years or even decades. By that time, the assets of the witness would have been dissipated."

Carpio also said the DOJ must "absolutely require" the state witness applicant to return the proceeds of the crime as a vital condition for being one.

He noted that based on Section 14 of RA 6971, a state witness who has been compelled to testify could no longer be required to return the money he unlawfully took from the government due to the on the ground of the constitutional right against self-incrimination.

The section states, "Any Witness admitted into the Program pursuant to Sections 3 and 10 of this Act cannot refuse to testify or give evidence or produce books, documents, records or writings necessary for the prosecution of the offense or offenses for which he has been admitted into the Program[.]"

"[H]e shall enjoy immunity from criminal prosecution and cannot be subjected to any penalty or forfeiture for any transaction, matter or thing concerning his compelled testimony or books, documents, records and writings produced," it also states.

For Carpio, if "the perpetrators of the biggest corruption scandal in Philippine history" are accepted as state witnesses, they would be "laughing all the way to the bank with their billions of stolen money without the legal obligation of restitution."

"That would be the perfect crime of plunder," he added.

Memorandum of agreement

Mel Sta. Maria, former dean of the Far Eastern University Institute of Law, on Facebook said Remulla is correct about requiring the return of ill-gotten wealth as a condition for state witness application.

"[R]eturn muna ang mga nakaw-yaman o pera na nakuha unjustifiably and unconscionably," Sta. Maria said. "Accordingly, even if admitted to the program, a witness cannot automatically be given protection."

He referred to the execution of a memorandum of agreement, which shall set forth an applicant's responsibilities before being provided protection. Section 5 of RA 6981 lists the following responsibilities:

• To testify before and provide information to all appropriate law enforcement officials concerning all appropriate proceedings in connection with or arising from the activities involved in the offense charged;
• To avoid the commission of the crime;
• To take all necessary precautions to avoid detection by others of the facts concerning the protection provided him under this Act;
• To comply with legal obligations and civil judgments against him;
• To cooperate with respect to all reasonable requests of officers and employees of the Government who are providing protection under this Act; and
• To regularly inform the appropriate program official of his current activities and address.

An MOA counts as an obligation that must be fulfilled, according to Sta. Maria. Under Article 1157 of the Civil Code, obligations arise from law, contracts, quasi-contracts, acts or omissions punished by law, and quasi-delicts.

He pointed out that the legal obligation to return money obtained or given without just or legal ground or as a result of graft and corruption falls under the Civil Code.

Article 22 provides that “every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him.” Article 23 provides that “even when an act or event causing damage to another's property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited.”

Contracting parties may then establish stipulations, clauses, terms, and conditions as they may deem convenient, "provided they are not contrary to law, morals, good customs, public order, or public policy," as provided by Article 1306. Moreover, "Contracts are perfected by mere consent, and from that moment the parties are bound not only to the fulfillment of what has been expressly stipulated but also to all the consequences which, according to their nature, may be in keeping with good faith, usage and law," as provided by Article 1315.

"So kung pumirma 'yung mga applicants sa MOA na ginagawang condition na ibalik nila 'yung lahat na kanilang nakuhang pera, dapat nilang tuparin iyon," Sta. Maria said. "Hindi naman contrary to law, morals, good customs, public order and public policy 'yung condition."

IRR reinforces restitution requirement

Dan Gatmaytan, a professor at the University of the Philippines College of Law, told PhilSTAR L!fe that RA 6981's implementing rules and regulations in 2012 reinforce the idea that restitution may count as a requirement for becoming a state witness.

"The contents thereof are not exclusive to those items listed in the law," Gatmaytan said. "The State, I believe, may incorporate restitution as one of the grounds for inclusion in the WPP."

Gatmaytan also noted possible additional requirements from the government, as stipulated in the IRR's Article III Section 1 B. These may include the following:

• Resolution on the Preliminary Investigation; Report of the Investigation; Information filed in Court; or, Order of discharge as state witness;
• Medical, psychological, drug test results of the applicant or those to be placed in the temporary shelter or safehouse;
• Threat Assessment by Law Enforcement Agencies;
• Income Tax Returns of the applicant;
• Certification of Indigency of the applicant from DSWD or barangay;
• Court, Police, and NBI Clearance of the applicant or those who will be placed in the temporary shelter or safehouse.

Gatmaytan also pointed out that according to Article VI, an MOA "is not a contract, but an undertaking which primarily describes what the witness should do or not do while he is under the program's coverage."

Upon executing an MOA, the applicant, aside from the responsibilities previously mentioned, may also be assigned "such other duties and responsibilities and terms and conditions as the Implementor may impose."

"Again, it is clear that this list is not exclusive," Gatmaytan said. "I submit that restitution may be made one of the grounds for inclusion in the program."

Discayas, ex-DPWH engineers considered 'protected witnesses'

The Discaya couple and dismissed Department of Public Works and Highways engineers Henry Alcantara, Brice Hernandez, and Jaypee Mendoza are now considered "protected witnesses" in the flood control probe, according to Remulla.

The SOJ elaborated on the distinction between a protected and a state witness. 

"Pwede na rin silang (Discayas) protected witnesses," Remulla said. "Pero 'yung state witness na status kasi, we are very careful about that. It takes a lot of doing to declare a person as a state witness. Because you're freeing them completely from criminal liability."

"Ang protected witness kasi, kaya ginawa ang witness protection program, para ang mga testigo sa mga kaso ay hindi masaktan at hindi pagtangkaan ang buhay, kaya iyan ay isang katungkulan na aming tinutupad,” he continued.

Meanwhile, the Palace said that the Discaya couple must first return any money they allegedly stole from the government before their application to the WPP can be considered.