The Witness

February 23, 2014 at 4:47pm

         Ruby Tuason’s testimony before theSenate Blue Ribbon Committee has been characterized differently by differentpeople. From a slam dunk, bull’s eye, a 3-point buzzer beater winning shot to adud, suspicious or weak.  According toRappler, around 70% of netizens reacted negatively to her testimony. Theoverwhelming negative sentiment is borne out of suspicion of her motives aswell as cynicism over her real intent. But there are also those who admire hercourage and expressed hope that with her testimony the truth will finally comeout and pin the real culprits behind what Senator Santiago characterized as theworst financial scandal of Philippine politics in its entire history.

        What exactly did Ruby Tuason reveal inher testimony?  She confessed that shewas the “agent” that linked the senators Estrada and Enrile to Napoles way backin 2004. She recalled there were instances when she herself delivered thekickbacks of the senators. She said that she personally delivered commissionsto Senator Jinggoy Estrada. In the case of Enrile however, she said there wereoccasions in their meetings in posh restaurants that "Enrile would joinus, when we are almost done, for a cup of coffee." Tuason clarified thathe didn't stay long and would be silent throughout the meetings. After coffee,Enrile would leave and sometimes pick up Reyes. She said transactions had noreceipts and were done several times in cold cash and that she also received areferral fee of 1.5 percent.

      What is significant is that Tuason’stestimony provides a direct evidence of Senator Estrada’s participation in thepork barrel scam. It is a categorical eyewitness account which Senator Santiagotags as bulls-eye evidence. To counter the witness’ testimony, Senator Estradareportedly denied vehemently the allegations. If this were the only defense hecould muster, I must say Senator Estrada’s attempt at exoneration is anemic tosay the least. The principle in criminal law is that the defense of denialdeserves scant consideration since "denial cannot prevail over thepositive testimony of a witness. A mere denial, just like alibi, is aself-serving negative evidence which cannot be accorded greater evidentiaryweight than the declaration of credible witnesses who [testified] onaffirmative matters. Mere denial being unavailing, the most viable recourse forSenator Estrada is to assail her credibility and impute improper or ill motiveon her part to degrade her testimony.  

         As to Senator Enrile, Tuason wasunsure whether the Senator knew of the kickbacks. She only went as far assaying that Senator Enrile’s chief of staff Gigi Reyes received kickbacks onhis behalf.  Based on her testimony, theSenator was present during one of the meetings but remained silent allthroughout.  There are Supreme Courtdecisions to the effect that mere presence at the discussion of a conspiracy,even approval of it, without any active participation in the same, is notenough for purposes of conviction. Did Senator Enrile perform any overt act infurtherance of the conspiracy? Tuason’s testimony does not seem to establishhis active participation nor can his mere presence constitute an overt act infurtherance of the conspiracy. Again, jurisprudence would tell us that “merepassive and mute presence at the scene of the crime does not make him either aco-principal or accomplice in the commission of the offense” (People vs.Custodia, No. L-30463, October 30, 1972). The elements of conspiracy, like thephysical acts constituting the crime itself must be proven beyond reasonabledoubt.  In this regard, I believe thetestimony of Tuason may fall short to establish an overt act conclusivelyattributable to Senator Enrile which would pin him down as a co-conspirator.This is probably the reason why some quarters suspected that she was trying toshield Senator Enrile or that she was his Trojan horse.

       Of course, even without direct testimonythe accused may still be convicted based on circumstantial evidence; that is,if the prosecution, during trial, is able to establish participation in thecrime through credible and sufficient circumstantial evidence that leads to theinescapable conclusion that those accused committed the imputed crime.

       Not being a court of law and the SenateCommittee hearing not being designed to prosecute, Tuason’s testimony ismaterial only insofar as it would help the Senate come up with legislation toprevent similar scams from happening in the future. However, her affidavitsubmitted to the Office of the Ombudsman will, of course, be taken into accountin the determination of whether or not there is probable cause to file plundercases against the respondents. Her testimony will bolster and corroborate thestatements of the other whistleblowers that Napoles and some named lawmakersactively participated in and benefited from the greatest scam in Philippinehistory.

    The drama is still unfolding. Tuason, Luyand the other whistleblowers are not the end of it all. Other witnesses may yetreveal other “meaty info” in the days ahead. In fact based on reports other“participants” like Mat Ranillo are ready to testify before the Senatehearing.  Until then it might be unwiseto make a conclusive assessment on the probative value of Ruby Tuason’stestimony. But one thing is for sure; the work of the defense lawyers keepsgetting tougher and tougher with each passing adverse testimony. 

            As I write this, Ruby Tuason is inmy office at the Ateneo School of Government (ASoG). She was invited by theChristian Union for Socialist and Democratic Advancement (CRUSADA), a studentpolitical party in the Ateneo de Manila University, for an “open discussion”.Partnering with ASoG, CRUSADA hopes to have an engaged and intense dialoguewith the witness so that the students, professors and other members of theAteneo community can make their own judgment. It will be for sure aninteresting next two hours.