EXPLAINER: Do Sarah and Curlee Discaya qualify as state witnesses in the flood control issue?
Sarah and Curlee Discaya—the couple whose construction firms won billions of pesos of DPWH contracts over the years—have been accused of corruption, especially after they flexed their dozens of luxury cars and other assets in their interviews with Korina Sanchez and Julius Babao.
It was only a matter of time before the Discayas' "inspiring" rags-to-riches story unraveled and opened a can of worms. That led to public outrage, flood control projects being the talk of the town, a Bureau of Customs chase, revocation of the Discaya companies' licenses, and congressional hearings.
But the pair is now flipping an all-too-familiar script: They're just victims of a broken system. In the Senate Blue Ribbon Committee Hearing on Monday, Sept. 8, they claimed that DPWH officials and congressmen made them participate in anomalous biddings with kickbacks ranging from 10% to 25%. Otherwise, they'd supposedly face termination of contracts, right-of-way problems, and removal from the government's contractors list.
Curlee name-dropped the officials, who promptly denied his claims. There were even some who said they'd file libel and perjury cases against the couple.
Amid their bombshell, the Discayas told senators they're willing to become state witnesses, promising to tell more about the alleged corruption involving the DPWH and Congress.
"Handa kaming tumestigo na walang pilit at kusang loob bilang state witness at sabihin ang lahat ng nangyayaring katiwalian ng Kamara, DPWH, at iba pang mga kawani ng gobyerno para gawin ang tama," Curlee said. He also asked for protection amid supposed threats to their lives.
But given the details they've shared with senators—suspicions of inconsistencies and perceived lack of the meatiest information notwithstanding—can the Discayas qualify as state witnesses?
'Return ill-gotten wealth first'
After the Sept. 8 Senate hearing, DOJ Sec. Boying Remulla told reporters that if the Discayas wish to become state witnesses, they must first return the ill-gotten wealth they may have.
“Parang first principle na gagamitin natin dito, kung meron silang nakukuhang perang hindi dapat, isauli nila sa republika," Remulla said. "‘Yun naman ang first condition natin lagi, 'di ba? You don't walk off laughing at the system because you enrich yourself and got away with the crime."
Until then, Remulla said it's the only time that immunity from prosecution will be considered.
"‘Yun talaga ang whistleblower act. We have to work on those premises,” he added.
The secretary said the DOJ is forming a team with the National Bureau of Investigation for possible forensic accounting.
“Kung magkakaroon sila ng offer to return, [malalaman kung] tama ba ‘yung figure o hindi. Kasi ‘yun nga, kinakailangan makita ‘yan, ‘yang money trail," he said. "Maging cooperative sila dapat when it comes to this."
What the law says
Atty. Hyacinth Merioles of Merioles Law Office told PhilSTAR L!fe that according to Rule 119 Section 18 of the Revised Rules of Criminal Procedure, 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
"All these elements have to be met for the Discayas to qualify as state witnesses," Merioles said. "The trial court, and not the prosecutor, has the final say on whether to discharge the accused to become a state witness."
Atty. Carlo John Pascual of Manalo and Valenton Law Offices told L!fe that the same conditions are stipulated in the Republic Act No. 6981, or the "Witness Protection, Security and Benefit Act."
Aside from the five conditions in the Revised Rules of Criminal Procedure, 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.
"Please note that all the circumstances must be present," Pascual said.
Of all the aforementioned conditions, he stressed that the applicant not appearing to be the most guilty must "especially" be met.
Both lawyers pointed out that to appear as not the most guilty, it will largely depend on who will be charged alongside the Discayas.
Pascual likewise noted that the application to be a state witness is still subject to evaluation and examination by the Department of Justice.
The lawyer pointed out that if the Discayas end up becoming state witnesses, they would be able to narrate things without fear of facing criminal complaints. Thus, it could pave the way for a more comprehensive investigation into the corruption issue.
By the same token, Pascual warned that applying for state witness may have an ulterior motive: a means of self-preservation and getting away with accountability. "It may lead to other contractors applying to be state witnesses and asserting that they are likewise 'victims' of the corrupt system," he said.