Blanket immunity versus use immunity

The spate of Congressional investigations like those relating to the Napoles and Binay cases has once again brought to the fore the relevance of immunity statutes.

Immunity statutes are generally classified into two. The first is “use or derivative use immunity” while the other is “transactional immunity.”

Use or derivative use immunity prohibits the use of the testimony of the witness or any evidence derived from it against the witness. This kind of immunity, however, does not prevent the prosecution from presenting independent evidence against the witness.

Otherwise stated, if the prosecution has other evidence substantiating the supposed crime independently of the witness’ testimony, the witness may then be prosecuted for the crime.

For example, suppose the prosecution grants Witness the use immunity for testifying in Defendant’s robbery trial. Witness states that after he and Defendant robbed the bank, he took some of the stolen money and used it to buy 1000 kilograms of cocaine from Dealer.

Witness then sold the 100 kilograms of cocaine to Buyer. Can the prosecution get Witness for robbery? Yes, but the prosecution cannot use Witness’ immunized testimony against him. It must rely on independent evidence that Witness robbed the bank, say a testimony from Witness B who saw the sale take place.

On the other hand, “transactional immunity” grants immunity to the witness from prosecution for an offense to which his compelled testimony relates. Known as the “blanket” or “total” immunity because it is broader in scope, it completely protects the witness from future prosecution for crimes related to his testimony.

In the Philippines, the distinction between these two kinds of immunities were illustrated in the 1985 Galman vs. Pamaran case, which covered the President Marcos-issued Presidential Decree No. 1886 creating the Agrava Board to investigate the killing of the late Senator Benigno Aquino Jr.

To encourage witnesses to come forward with evidence on the incident, the executive fiat provided the “[witness] testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter or thing concerning which he is compelled, after having invoked his privilege against self-incrimination, to testify or produce evidence…”

General Fabian Ver and Prospero Olivas testified before the Agrava Board. Subsequently, they were indicted for the murder of the late senator. In the course of the case against them at the Sandiganbayan, they objected to the admission of their testimony before the Agrava Board on the ground that their admission violated the immunity granted them by P.D. 1886.

Examining Section 5 of P.D. 1886, the Supreme Court held that what the law granted was “merely immunity from use of any statement given before the Board, but not immunity from prosecution by reason or on the basis thereof.”

It does “not render the witness immune from prosecution… [but] is merely saved from the use against him of such statement and nothing more. Stated otherwise, he still runs the risk of being prosecuted even if he sets up his right against self-incrimination.”

Two subsequent cases (Mapa vs. Sandiganbayan, G.R. No. 100295, April 26, 1994; and Tanchanco vs. Sandiganbayan, G.R. No. 141675-96, November 25, 2005) further distinguished the two immunity statutes. These cases involved Executive Order No. 14 Series of 1986, issued by former President Corazon Aquino pursuant to her legislative powers under the Freedom Constitution of 1986.

The Presidential Commission on Good Government (PCGG) granted immunity to witnesses who provided evidence in the alleged ill-gotten cases against the Marcoses pursuant to Section 5 of E.O. No. 14. This section authorized the PCGG “to grant immunity from criminal prosecution to any person who testifies to the unlawful manner in which any respondent, defendant or accused has acquired or accumulated the property or properties in question in cases where such testimony is necessary to prove violations of existing laws.” The high court held this kind of immunity is transactional immunity.

Another example of transactional immunity is R.A. 6981, more popularly known as the Witness Protection Act. Section 14 of the law provides that witnesses testifying and producing evidence pursuant to the law “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.”

The Witness Protection Act grants transactional immunity. Note, however, that while this kind of immunity is much broader than the use or derivative use immunity, it does not prevent the prosecution of the witness for criminal activities that are unrelated to the subject matter of his testimony.

For example, if whistleblower Benhur Luy is used as witness against alleged pork scam mastermind Janet Napoles under the Witness Protection Act, he cannot be prosecuted for malversation because the grant of transactional immunity protects him. What if, for purposes of example only, Luy pocketed some of the money to purchase heroin a month after the malversation case in question? He can be charged for the purchase and/or possession of the heroin because it is totally unrelated to the crime for he was granted immunity.

Three final points: The prosecution can give immunity only pursuant to the statutory grant or that which was provided by law. The prosecution does not have a wholesale authority     to give immunity. It is limited to instances specified by laws like R.A. 6981 or P.D. 1886. Second, it is not necessary the witness actually testifies in court.

It is enough that he provides evidence required by the prosecution as exemplified in the Mapa case. If the prosecution decides not to call him to the witness stand, he still enjoys the immunity. Lastly, the witness may still be prosecuted and imprisoned for any perjurious testimony.

(The author, a senior partner in the Accra Law Offices, teaches Evidence in the Ateneo Law School. The views in this column are exclusively his. He may be contacted at [email protected])