PLACIDO L. MAPA, JR, AND J. LORENZO VERGARA, PETITIONERS, VS. SANDIGANBAYAN, RESPONDENT.

The denial of the right to be free from further prosecution of a cooperative
witness who has been granted immunity is the core issue posed in this
petition. On balance are important rights in conflict: the right of an individual who has
surrendered his constitutional prerogative to be silent to the State to be
exempt from further prosecution; the right of the State to prosecute all
persons who appear to have committed a crime and its prerogative to revoke the
immunity it has granted to an accused for breach of agreement; and the extent
of the jurisdiction of the Sandiganbayan as an impartial tribunal to review the
grant of immunity extended by the PCGG to an accused.

First, the facts.

On January 20, 1987, petitioners Placido L. Mapa and Lorenzo
Vergara, together with Gregorio Ma. Araneta III, Fernando Balatbat, Ramon Aviado,
Jr., Dominador Lopez, Jr., Fernando Maramag, Jr., and Jose Crisanto, Jr., were
charged with violation of the Anti-Graft and Corrupt Practices Act (R.A. 3019)
as amended, docketed as Case No. 11960 in the respondent court, as follows:

“That on or about and during the period from March 1985 and
March 1986, in Metro Manila, Philippines, and within the jurisdiction of the
Honorable Sandiganbayan, accused Placido L. Mapa, Jr., J. Lorenzo Vergara,
Ramon F. Aviado, Jr., Dominador Lopez, Jr., Fernando Maramag, Jr., Jose C.
Crisanto, Jr., acting in various capacities as management officials of the
Philippine National Bank (PNB), National Investment and Development Corporation
(NIDC) and/or Pantranco North Express Inc. (PNEI), all government-owned and
controlled corporations, as well as Dolores Potenciano of BLTB, acting in
concert in the performance of their duties, in utter neglect of their fiduciary
responsibilities, and with intent to gain, conspiring and confederating with
one another and with accused Gregorio Ma. Araneta III, son-in-law of former
President Ferdinand E. Marcos and therefore related to the deposed President by
affinity within the third degree, and Fernando Balatbat, did then and there,
willfully and unlawfully, with manifest partiality and evident bad faith,
without proper board resolution and in disregard of better offers, promote and
facilitate the sale of a major portion of the public utility assets of the
Pantranco Express, Inc., for a consideration of SEVEN HUNDRED SEVENTY-FIVE
MILLION (P775,000,000.00) PESOS, Philippine Currency, to the North Express
Transport, Inc. (NETI), which the accused knew be a newly organized paper
corporation with a purported paid-up capital of only FIVE MILLION
(P5,000,000.00) PESOS and owned and controlled by accused Gregorio Ma. Araneta
III, by misleading, inducing and/or unduly influencing the Board of Directors
of PNB, NIDC and PNEI into approving a Memorandum of Agreement and later a
Purchase Agreement with manifestly and grossly disadvantageous terms and conditions
which made possible the premature delivery
of said PNEI assets to NETI without any down payment, and which, inter alia, allowed NETI to
operate PNEI’s franchises and utilize, even before the execution of the said
Purchase Agreement, not only the PNEI assets subject of the proposed sale, but
also other utility buses and properties of PNEI not covered by the sale,
thereby allowing NETI to derive an income from said operation between the
period of actual delivery and execution of the Purchase Agreement of the sum of
EIGHTY-FIVE MILLION SIX HUNDRED EIGHTY-NINE THOUSAND, ONE HUNDRED EIGHTY
(P85,689,180.00) PESOS before the actual payment of the agreed
FIFTY-FIVE MILLION (P55,000,000.00) PESOS down payment, thereby giving accused Gregorio Ma. Araneta III unwarranted
benefits, advantages and/or preferences and causing undue injury to the damage
and prejudice of the Government in the amount of FOUR HUNDRED MILLION
(P400,000,000.00) PESOS, and such other amounts as may be awarded by the Court.

CONTRARY TO LAW.”

Except for petitioner Araneta, all the
accused in Criminal Case No. 11960 were arraigned. Their trial started on September 20, 1988.

In the interim, the late President Ferdinand E. Marcos and Mrs.
Imelda R. Marcos were charged in New York with violations of the Racketeer
Influenced and Corrupt Organization Act (RICO) by transporting to the United
States and concealing the investment of money through cronies and offshore
organizations. To insure the conviction
of the Marcoses, the prosecution solicited the testimonies of witnesses. Among these witnesses were petitioners
Vergara and Mapa. Petitioner Vergara
was interviewed in 1987 by PCGG lawyers Kendall and Severina Rivera and by
United States Prosecutor Charles La Bella. Petitioner Mapa was interviewed on November 14, 1988 and August 11, 1989
also by Prosecutor La Bella at the behest of former Secretary of Justice
Sedfrey Ordonez and former PCGG Chairman Mateo Caparas. After their interviews, petitioners were requested
to testify in the said RICO cases against the former First Couple. They were promised immunity from further
criminal prosecution. They agreed.

On May 16, 1990, the Philippine Government through the PCGG, and
the petitioners formalized their separate agreements in writing. The agreement with petitioner Mapa provided:

“WHEREAS, REPUBLIC has requested MAPA to make himself
available as a witness in the case entitled “United States of America vs.
Ferdinand E. Marcos, et. al.,” more particularly in the on-going trial of
the case;

WHEREAS, MAPA is a defendant or respondent in several civil and
criminal cases which the REPUBLIC has filed or intends to file in relation to
his participation in various contracts that are alleged to have resulted in the
accumulation of ill-gotten wealth by Ferdinand
and Imelda Marcos in violation of Philippine laws, rules and regulations;

WHEREAS, on the basis of MAPA’s express intent to make himself
available as witness in the case entitled “United States of America vs.
Ferdinand E. Marcos, et, al.,” and in light of REPUBLIC’s re-appraisal of
the civil and criminal cases which it has filed or intends to file against MAPA
under the terms and conditions hereinbelow set forth.

NOW, THEREFORE, for and in consideration of the foregoing premises,
the parties agree as follows:

1. MAPA shall make himself available as a
witness in the case entitled “United States of America vs. Ferdinand E.
Marcos, et. al.”

2. In consideration of the same, REPUBLIC
grants MAPA immunity from investigation, prosecution and punishment for any offense
with reference to which his testimony and information are given, including any
offense and commission of which any information, directly or indirectly derived
from such testimony or other information is used as basis thereof, except a
prosecution for perjury and/or giving false testimony.

3. Likewise, in consideration of such
cooperation, and in light of REPUBLIC’s review of the cases both civil and
criminal which it has filed or intends to file against MAPA within the purview
of Executive Orders Nos. 1, 2, 14 and 14-A, the REPUBLIC shall cause the
dismissal or exclusion of MAPA as party defendant or respondent in all PCGG
initiated civil cases and criminal proceeding or investigation.

4. The immunity has been granted by the
REPUBLIC to MAPA on the basis of and relying on MAPA’s promise of cooperation
as described herein. In case of breach
of his commitment to fully cooperate and make himself available as a witness in
the case entitled “United States of America vs. Ferdinand E. Marcos, et.
al.”, the immunity herein granted shall forthwith be deemed revoked, and
of no force and effect.

5. The parties agree that the grant of immunity
from criminal prosecution to MAPA and his exclusion from PCGG initiated civil
cases and criminal proceeding or investigations has been undertaken in the
exercise of the PCGG’s authority under Executive Orders Nos. 1, 2, 14 and
14-A. Accordingly, nothing herein shall
be construed as an admission by MAPA of
any criminal or civil liability.”

The agreement with petitioner Vergara
stated:

“WHEREAS, REPUBLIC has requested VERGARA to make himself
available as a witness in the case entitled “United States of America vs.
Ferdinand E. Marcos, et. al.,” more particularly in the on-going trial of
the case;

WHEREAS, Vergara is a defendant in Criminal Case No. 11960 entitled
People vs. Gregorio Ma. Araneta, et. al., now pending before the Sandiganbayan,
Second Division;

WHEREAS, on the basis of VERGARA’s express intent to make himself
available as witness in the case entitled “United States of America vs.
Ferdinand E. Marcos, et. al.,” and in light of REPUBLIC’s re-appraisal of
VERGARA’s participation in Criminal Case No. 11960, the REPUBLIC approved to
grant immunity to VERGARA under the terms and conditions hereinbelow set forth.

NOW, THEREFORE, for and in consideration of the foregoing premises,
the parties agree as follows:

1. VERGARA shall make himself available as a
witness in the case entitled “United States of America vs. Ferdinand E.
Marcos, et. al.”

2. In consideration of the same, REPUBLIC
grants VERGARA immunity from investigation, prosecution and punishment for any
offense with reference to which his testimony and information are given,
including any offense and commission of which any information, directly or
indirectly derived from such testimony or other information is used as basis
thereof, except a prosecution for perjury and/or giving false testimony.

3. Likewise, in consideration of such
cooperation, and in light of REPUBLIC’s review of VERGARA’s participation in
Criminal Case No. 11960, the REPUBLIC shall cause the dismissal of VERGARA from
Criminal Case No. 11960.

4. The immunity has been granted by the
REPUBLIC to VERGARA on the basis of and relying on VERGARA’s promise of
cooperation as described herein. In
case of breach of his commitment to fully cooperate and make himself available
as a witness in the case entitled
“United States of America vs. Ferdinand E. Marcos, et. al.”, the
immunity herein granted shall forthwith be deemed revoked, and of no force and
effect.

5. The parties agree that the grant of immunity
from civil and criminal prosecution to VERGARA and his exclusion from Criminal
Case No. 11960 has been undertaken in the exercise of the PCGG’s authority
under Executive Orders Nos. 1, 2, 14 and 14-A. Accordingly, nothing herein shall be construed as an admission by
VERGARA of any criminal liability.”

On the same day, May 16, 1990, former PCGG Chairman Mateo Caparas
wrote to petitioner Mapa the following letter:

“Dear Sir:

With reference to the agreement executed between yourself and the
Republic of the Philippines on May 16, 1990, we would like to confirm that
among the criminal cases which the Republic agrees to cause the dismissal of
the case entitled “People of the Philippines vs. Mr. Gregorio Ma. Araneta
III, et. al.,” Criminal Case No. 11960 of the Sandiganbayan. We understand that in that case the
prosecution is in the process of closing its evidence with the submission of
its offer of documentary evidence and that it is your intention thereupon to
submit a Motion to Dismiss for failure of the prosecution to prove its
case. We affirm that if, because of the
situation of the case, it would not be possible for the Republic to file the necessary
motion to cause the dismissal thereof, then we shall upon submission of your
Motion to Dismiss offer no objection to its favorable consideration by the
court in relation to you.

We also affirm our understanding that we shall arrange with the
U.S. prosecutors the grant of immunity in your favor no less broad or extensive
than that granted to Mr. Jaime C. Laya.

Very truly yours,

(SGD.) M.A.T.
Caparas”

A similar letter was sent to petitioner
Vergara.

The petitioners complied with their respective undertaking. They travelled to New York to testify
against the Marcoses. Their travel fare
and hotel accommodations were even furnished by the PCGG. But despite their availability and
willingness to testify, the US prosecutors decided not to call them to the
witness stand. The result was a debacle
for the US prosecutors and the PCGG. Mrs. Imelda Marcos was acquitted by the jury. Earlier, former President Marcos was delisted as an accused as he
died in the course of the proceedings.

The legal struggle shifted back to the prosecution of petitioners
in Criminal Case No. 11960 before the respondent court. On the basis of the immunity granted to
them, petitioners filed a Joint Motion to Dismiss on October 22, 1990. Deputized PCGG prosecutors Vivencio B.
Dionido and Angel J. Parazo filed a Manifestation interposing no objection to
petitioners’ Motion, viz:

“That herein accused Placido L. Mapa, Jr. and J. Lorenzo
Vergara were granted immunity by the Presidential Commission on Good Government
from criminal liability arising from cases which PCGG had or intends to file
against them;

The PCGG, therefore, interposes no objection to the Joint Motion to
Dismiss filed by accused Placido L. Mapa, Jr, and J. Lorenzo Vergara in
Criminal Case No. 11960-PCGG by reason of the immunity aforestated.”

Despite PCGG’s concurrence, the
respondent court denied the Joint Motion to Dismiss, by a vote of 4-1.^[1]
Petitioners were undaunted. On April 8,
1991, they filed a Motion for Reconsideration. This was followed on May 23, 1991, by a Supplement to the Motion for
Reconsideration. The deputized
prosecutors again filed a Manifestation reiterating PCGG’s acquiescence to
petitioners’ Motion for Reconsideration. Respondent court, however, refused to budge from its prior
position. It denied petitioners’
motions.

Hence, this recourse where petitioners charge the respondent
court with grave abuse of discretion in denying their Motion to Dismiss and
Motion for Reconsideration. They pose
the following issues:

“2.00.a. Does
the fact that the information provided by petitioners to the Presidential
Commission on Good Government (PCGG) did not refer to Criminal Case No.11960
make the immunity granted to them inapplicable to Criminal Case No. 11960?

2.00.b. Is it necessary that information furnished the PCGG, which would become
basis of the grant of immunity, be submitted to the Sandiganbayan in order that
it may determine whether such information is necessary to ascertain or prove
the guilt or liability of a respondent, defendant or an accused in an action
involving the recovery of ill-gotten wealth?

2.00.c. Does the fact that the prosecution in the RICO cases did not actually
present petitioners as witnesses abrogate the immunity granted to them?

2.00.d. Was the immunity granted to petitioners too late considering that when
it was granted, the prosecution in Criminal Case No. 11960 had already rested
its case?”

The proceedings before us took a new wrinkle with the appointment
of Atty. David Castro as Chairman of PCGG. In its Comment dated January 6, 1992, the PCGG somersaulted from its
stance supporting the petitioners. Its
Comment states:

“1. The Presidential Commission on Good
Government has indeed granted Messrs. Placido L. Mapa, Jr., and Jesus Lorenzo Vergara
immunity from investigation, prosecution and punishment for any offense for
which civil and criminal cases have been or to be filed against them within the
purview of Executive Orders Nos. 1, 2, 14 and 14-A but such immunity is conditional.

2. The
conditions for giving such immunity is the cooperation said petitioners shall
give to said Commission by way of information and testimony in cases now
pending or to be filed before the Sandiganbayan against other defendants
therein to prove the latter’s acquisition or accumulation of property or
properties in violation of existing laws.

3. Failure on the part of petitioners Placido
Mapa, Jr. and Jesus Vergara to testify in favor of the government and against
other defendants on matters referred to in the immediately preceding paragraph nullifies the immunity granted to both
defendants (underscoring
supplied).”

It reiterated its breakaway from
petitioners in its Comment to the Reply of petitioners dated June 10, 1992,
where it adopted the respondent Sandiganbayan’s questioned Resolution and
Concurring Opinions dated March 6, 1991. It further stressed that “[T]he granting of ‘Immunity’ from
criminal liability and/or prosecution is a matter subject to the court’s
judicious determination and approval, after applying the test of compliance and
the standard of reasonableness with the rigid requirements for such grant under
Section 5 of Executive Order No. 14-A, as amended.” The Solicitor General
defended the stance of the PCGG and the respondent court.

We find merit in the petition.

The practice of granting government, its officials, and some
accused or respondents immunity from suit, has a long history.

We begin with the Constitution which expressly grants some of
these immunities. Article XVI, section
3 provides that “the State may not be sued without its consent.” The
classic justification for the non-suability of the State is that provided by
Mr. Justice Oliver Wendell Holmes: “…
there can be no legal right against the authority which makes the law on which
the right depends.”^[2]
Article VI, section 11 of the Constitution also grants parliamentary
immunities, viz: “A Senator or
Member of the House of Representatives shall, in all offenses punishable by not
more than six years imprisonment, be privileged from arrest while the Congress
is in session. No member shall be
questioned nor be held liable in any other place for any speech or debate in
the Congress or in any committee thereof.” Mr. Justice Isagani A. Cruz explains
the rationale for this immunity in the following manner: “x x x The first is intended to ensure
representation of the constituents of the member of the Congress by preventing
attempts to keep him from attending its sessions. The second enables the legislator to express views bearing upon
the public interest without fear of accountability outside the halls of the
legislature for his inability to support his statements with the usual evidence
required in the court of justice. In
other words, he is given more leeway than the ordinary citizen in the
ventilation of matters that ought to be divulged for the public good.”^[3]
The President was also immunized from suit during his tenure in the 1973
Constitution.

Aside from the Constitution, Congress has enacted laws giving
immunity to witnesses to facilitate the solution of crimes with high political,
social and economic impact against the people. Some of these statutory grants are related in the impugned
Resolution. Thus, PD 749 provides:

“Section 1. Any person
who voluntarily gives information about any violation of Articles 210, 211, 212
of the Revised Penal Code, Republic Act No. 3019, as amended; Section 345 of the Internal Revenue Code and Section
3604 of the Tariff and Customs Code and other provisions of the said codes
penalizing abuse or dishonesty on the part of the public officials concerned;
and other laws, rules and regulations punishing acts of graft, corruption and
other forms of official abuse; and who willingly testified, such violator shall
be exempt from prosecution or punishment for the offense with reference to
which his information and testimony were given, and may plead or prove the
giving of such information and testimony in bar of such prosecution: Provided,
That this immunity may be enjoyed even in cases where the information and the
testimony are given against a person who is not a public official but who is a
principal or accomplice, or accessory in the commission of any of the
above-mentioned violations: Provided,
further, That this immunity may be enjoyed by such informant or witness
notwithstanding that he offered or gave bribe or gift to the public official or
is an accomplice for such gift or bribe-giving; And, Provided, finally, That
the following conditions concur:

1. The information
must refer to consummated violations of any of the above?mentioned provisions of law, rules and
regulations;

2. The information
and testimony are necessary for the conviction of the accused public officer;

3. Such information
and testimony are not yet in the possession of the State;

4. Such information and testimony can be corroborated on its
material points; and

5. The informant or witness has not been previously convicted of a
crime involving moral turpitude.”

Likewise, under PD No. 1886, the Agrava
Fact Finding Board, created to conduct a fact-finding inquiry in the
Aquino-Galman double murder case, was given the power to compel testimony of a
witness. In exchange for his testimony,
such a witness was extended transactional immunity from later prosecution. Section 5 of said PD No. 1886 states:

“No person shall be excused from attending and testifying or
from producing books, records, correspondence, documents, or other evidence in obedience to a subpoena issued by the Board
on the ground that his testimony or the evidence required of him may tend to
incriminate him or subject him to penalty or forfeiture; but his 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, except that such individual so testifying shall not be exempt from
prosecution and punishment for perjury committed in so testifying, nor shall he
be exempt from demotion or removal from office.”

Indeed, as early as April 16, 1951, R.A.
602, establishing a minimum wage law, extended transactional immunity to
persons who testify or produce books, papers or other records and documents
before the Secretary of Labor or a Wage Board. A similar but not identical power is given to the prosecution under
section 9, Rule 119 of the 1985 Rules on Criminal Procedure to discharge an
accused to be utilized as a state witness.

Our immunity statutes are of American origin. In the United States, there are two types of
statutory immunity granted to a witness. They are the transactional immunity and the use-and-derivative-use
immunity. Transactional immunity is
broader in the scope of its protection. By its grant, a witness can no longer be prosecuted for any offense
whatsoever arising out of the act or transaction.^[4] In
contrast, by the grant of use­-and-derivative-use immunity, a witness is only
assured that his or her particular testimony and evidence derived from it will
not be used against him or her in a subsequent prosecution.^[5] In
Kastigar vs. US,^[6]
the rationale of these immunity grants is well explained, viz:

“The power of government to compel persons to testify in court
or before grand juries and other governmental agencies is firmly established in
Anglo-American jurisprudence . . . The
power to compel testimony, and the corresponding duty to testify, are
recognized in the Sixth Amendment requirements that an accused be confronted
with the witnesses against him, and have compulsory process for obtaining
witnesses in his favor. . .

x x x

But the power to compel testimony is not absolute. There are a number of exemptions from the
testimonial duty, the most important of which is the Fifth Amendment privilege
against compulsory self-incrimination. The privilege reflects a complex of our fundamental values and
aspirations, and marks an important advance in the development of our liberty. It can be asserted in any proceeding, civil or criminal, administrative
or judicial, investigatory or adjudicatory; and it protects against any
disclosures that the witness reasonably believes could be used in a criminal
prosecution or could lead to other evidence that might be so used. This Court has been zealous to safeguard the
values that underlie the privilege.

Immunity statutes, which have historical roots deep in
Anglo-American jurisprudence, are not incompatible with these values. Rather, they seek a rational accommodation
between the imperatives of the privilege and the legitimate demands of
government to compel citizens to testify. The existence of these statutes reflects the importance of testimony,
and the fact that many offenses are of such a character that the only persons
capable of giving useful testimony are those implicated in the crime. Indeed, their origins were in the context of
such offenses, and their primary use has been to investigate such offenses . . . (E)very State in the Union, as well as
the District of Columbia and Puerto Rico, has one or more such statutes. The commentators, and this Court on several
occasions, have characterized immunity statutes as essential to the effective
enforcement of various criminal statutes. . .”

We shall now examine the powers granted to PCGG by Executive
Order No. 14, as amended, to grant immunity from criminal prosecution. The pertinent sections provide:

x x x

“SEC. 2. Section 4 of Executive Order No. 14 dated May 7, 1986
is hereby amended to read as follows:

‘SEC. 4. A witness may refuse on the basis of his privilege against
self-incrimination, to testify or provide other information in a proceeding
before the Sandiganbayan if the witness believes that such testimony or
provision of information would tend to incriminate him or subject him to
prosecution. Upon such refusal, the
Sandiganbayan may order the witness to testify or provide information.

The witness may not refuse to comply with the order on the basis of
his privilege against self-incrimination; but no testimony or other information
compelled under the order (or any information directly or indirectly derived
from such testimony, or other information) may be used against the witness in
any criminal case, except a prosecution for perjury, giving a false statement,
or otherwise failing to comply with the order.’

SEC. 3. Section 5 of Executive Order No. 14 dated May 7, 1986 is
hereby amended to read as follows:

‘Sec. 5. The Presidential Commission on Good Government is
authorized to grant immunity from criminal prosecution to any person who
provides information or testifies in any investigation conducted by such
Commission to establish the unlawful manner in which any respondent, defendant
or accused has acquired or accumulated the property or properties in question
in any case where such information or testimony
is necessary to ascertain or prove the latter’s guilt or his civil
liability. The immunity thereby granted
shall be continued to protect the witness who repeats such testimony before the
Sandiganbayan when required to do so by the latter or by the Commission.'”

There are obvious differences between the powers granted to the PCGG under sections 4 and 5. Section
4 deals with the power which PCGG can
use to compel an unwilling witness to testify. On the other hand, section 5 speaks of the power which PCGG can wield to secure information
from a friendly witness. Under
section 4, the hostile witness compelled to testify is not immunized from
prosecution. He can still be prosecuted
but “no testimony or other information compelled under the order (or any information
directly or indirectly derived from such testimony or other information) may be
used against the witness in any criminal case … .” In contrast, under
section 5, the friendly witness is completely immunized from prosecution.

The case at bench involves an exercise of power by PCGG under
section 5, supra. Petitioners
are not hostile but friendly witnesses. It is not disputed that they furnished information to the PCGG during
their interviews conducted by PCGG lawyers and US prosecutor La Bella. Due to their cooperation, they were extended
immunity from prosecution by the PCGG. In return, they flew to New York to
testify in the RICO trial of Imelda Marcos. As they were witnesses for the prosecution, their expenses were
shouldered by the PCGG itself. At the last minute, however, US prosecutor
La Bella decided to dispense with their testimony. The rest is history. The
prosecution failed to convict Mrs. Marcos.

The first issue is whether the respondent court has jurisdiction
to review the immunity granted by PCGG in
favor of the petitioners. We sustain
the jurisdiction of the respondent court. To be sure, we have grappled with this once slippery issue in the case
of Republic vs. Sandiganbayan, 173 SCRA 76, 80-81, and we held:

“We first ascertain whether or not the Sandiganbayan has
jurisdiction to look into the validity of the immunity granted by the PCGG to Jose Y. Campos which was
extended to his son, petitioner-intervenor herein, Jose Campos, Jr.

x x x

“The powers of the PCGG
are not unlimited. Its
jurisdiction over cases involving ill-gotten wealth must be within the
parameters stated in Executive Order No. 14. Necessarily, the jurisdiction of the Sandiganbayan which is tasked to
handle the ill-gotten wealth cases must include the jurisdiction to determine
whether or not the PCGG exceeded
its power to grant immunity pursuant to the provisions of Executive Order No
14.”

It should also be noted that the
respondent court has already acquired jurisdiction to try and decide Case No.
11960 where petitioners stand accused of violating RA 3019. It has started receiving the evidence of the
prosecution against the petitioners. Petitioners, with the conformity of PCGG, then claimed their immunity via a motion to dismiss
addressed to the respondent court. The motion to dismiss is thus a mere incident
well within the jurisdiction of the respondent court to resolve.

The next issue is a finer and more difficult one, i.e., gauging
the range of the power of the respondent court to review the exercise of discretion
of the PCGG granting immunity to petitioners pursuant to section 5 of E.O. No.
14, as amended.

Respondent court, thru the Solicitor General, pushes the
proposition that said power of review is plenary in reach. It is urged that its plenitude and panoply
empower the respondent court to reverse the grant of immunity made by the PCGG
by supplanting the latter’s judgment. The submission will warrant the respondent court in examining the
intrinsic quality of the given information or testimony, i.e., whether it truly
establishes the “unlawful manner” in which the respondent, defendant
or accused has acquired or accumulated the property or properties in
question. Likewise, it will give a
warrant to the respondent court to change the judgment made by the PCGG that
the witness’ information or testimony is “necessary”
to ascertain or prove the guilt or civil liability of the respondent, defendant
or accused.

We are not prepared to concede the correctness of this
proposition. Neither the text nor the
texture of E.O. No. 14, as amended, lends color to the suggested
interpretation. Section 5 of E.O. No.
14, as amended, vests no such role in
respondent court. In instances, where
the intent is to endow courts of justice with the power to review and reverse tactical
moves of the prosecution, the law confers the power in clear and certain
language. Thus, under section 9 of Rule
119, the prosecution in the exercise of its discretion may tactically decide to
discharge an accused to be a state witness but its decision is made subject to
the approval of the court trying the case. It has to file a proper motion and the motion may be denied by the court
if the prosecution fails to prove that it has satisfied the requirements of the
rule on discharge of a witness. The
rule is crafted as to leave no iota of doubt on the power of the court to
interfere with the discretion of the prosecution on the matter. In the case at bench, E.O. 14, as amended,
is eloquently silent with regard to the range and depth of the power of the
respondent court to review the exercise of discretion by the PCGG granting a
section 5 immunity. This silence argues
against the thesis that the respondent court has full and unlimited power to
reverse PCGG’s exercise of discretion granting a section 5 immunity. Legitimate power can not arise from a
vacuum.

We observe that in contrast to our other laws on immunity,
section 5 of E.O. No. 14, as amended, confers on the PCGG the power to grant immunity alone and on its own
authority. The exercise of the power is
not shared with any other authority. Nor is its exercise subject to the approval or disapproval of another
agency of government. The basic reason
for vesting the power exclusively on the PCGG lies in the principle of
separation of power. The decision to
grant immunity from prosecution forms a constituent part of the prosecution
process. It is essentially a tactical
decision to forego prosecution of a person for government to achieve a higher
objective. It is a deliberate renunciation of the right
of the State to prosecute all who appear to be guilty of having committed a
crime. Its justification lies in the
particular need of the State to obtain the conviction of the more guilty
criminals who, otherwise, will probably elude the long arm of the law. Whether or not the delicate power should be
exercised, who should be extended the privilege, the timing of its grant, are
questions addressed solely to the sound judgment of the prosecution. The power to prosecute includes the right to
determine who shall be prosecuted and the corollary right to decide whom not to
prosecute. In reviewing the exercise of
prosecutorial discretion in these areas, the jurisdiction of the respondent
court is limited. For the business of a
court of justice is to be an impartial tribunal, and not to get involved with
the success or failure of the prosecution to prosecute. Every now and then, the prosecution may err
in the selection of its strategies, but such errors are not for neutral courts
to rectify, any more than courts should correct the blunders of the defense. For fairness demands that courts keep the
scales of justice at equipoise between and among all litigants. Due process demands that courts should
strive to maintain the legal playing field perfectly even and perpetually
level.

Prescinding from these baseline propositions, we hold that in
reviewing the grant of a section 5 immunity made by the PCGG to the
petitioners, the power of the respondents court can go no further than to pass
upon its procedural regularity. The respondent court should only ascertain: (a) whether the person claiming immunity has provided information
or testimony in any investigation conducted by the PCGG in the discharge of its
functions; (b) whether in the
bona fide judgment of the PCGG, the information or testimony given would
establish the unlawful manner in which the respondent, defendant or accused has
acquired or accumulated the property or properties in question; and (c) whether
in the bona fide judgment of the PCGG, such information or testimony is
necessary to ascertain or prove the guilt or civil liability of the respondent,
defendant or accused. Respondent court
cannot substitute its judgment to the discretion of the PCGG without involving
itself in prosecution and without ceasing to be a court catering untilted
justice.

Applying this standard, we hold that the respondent court
committed grave abuse of discretion when it denied petitioners’ motion to
dismiss based on a claim of immunity granted by the PCGG under section 5 of E.O. 14, as amended.

The records show that petitioners provided information to the
PCGG relating to the prosecution of the RICO
cases against the Marcoses in New York. They gave the information in the course of interviews conducted by PCGG
lawyers Kendall and Severina Rivera and US prosecutor Charles La Bella. They collaborated with the prosecution.

Sec. 5 requires that the information should relate to “any
case” which PCGG can prosecute as mandated by the Constitution and E.O.
Nos. 1, 2, 14 and 14-A. It does not
limit said information to be given only in a case where the informant is
himself an accused or a respondent. Such a reading adopted by the respondent court is unduly restrictive of
the intendment of section 5 of E.O. No. 14, as amended, even as it is clearly
in contravention of its plain language.

It is also fairly established that the pieces of information
given by the petitioners would in the judgment of the PCGG, establish the
“unlawful manner” with which the Marcoses acquired or accumulated their
properties and were “necessary” to prove their guilt. The totality of the circumstances of the
case established this element. Thus,
after their interview, the PCGG was obviously convinced of the evidentiary
value of the information given by the petitioners. It forthwith signed and sealed an agreement with petitioners
extending them immunity from prosecution. In the case of petitioner Mapa, “the Republic shall cause the dismissal
or exclusion of MAPA as party defendant or respondent in all PCGG initiated
civil cases and criminal proceeding or investigation.” In the case of
petitioner Vergara, “the Republic shall cause the dismissal of Vergara
from Criminal Case No. 11960.” This commitment was reiterated by former
Chairman Mateo Caparas of PCGG in his May 16, 1990 letters to the petitioners,
as related above. The parties’
agreements were then implemented. Petitioners travelled to New York to testify in the RICO cases against
the Marcoses. It was even the PCGG that
shouldered their expenses. All these
circumstances prove the judgment of the PCGG that the pieces of information
given by petitioners would establish the “unlawful manner” with which
the Marcoses acquired their wealth.

Contrary to the ruling of the respondent court, the failure of
petitioners to testify in the RICO cases against the Marcoses in New York can
not nullify their immunity. They have
satisfied the requirements both of the law and the parties’ implementing
agreements. Under section 5 of E.O. No.
14, as amended, their duty was to give information to the prosecution, and they
did. Under their Memorandum of
Agreement, they promised to make themselves available as witnesses in the said
RICO cases, and they did. Petitioners
were ready to testify but they were not called to testify by the US prosecutors
of the RICO case. Their failure to
testify was not of their own making. It
was brought about by the decision of the US prosecutors who may have thought that
their evidence was enough to convict the Marcoses. Since petitioners’ failure to testify was not of their own
choosing nor was it due to any fault of their own, justice and equity forbid
that they be penalized by the withdrawal of their immunity. Indeed, initially, the PCGG itself adopted
the posture that the immunity of petitioners stayed and should not be
disturbed. It joined the motion to
dismiss filed by petitioners in the respondent court. When the respondent court denied the motion, PCGG stuck to its
previous position as it again joined the petitioners in their motion for reconsideration. It is only in this petition for review on certiorari that PCGG, after a change of Chairman,
flip-flopped in its position.

We also rule that there was nothing irregular when PCGG granted a section 5 immunity to
petitioners while they were already undergoing trial in Criminal Case No.
11960. Section 5 of E.O. 14, as
amended, does not prohibit the PCGG from
granting immunity to persons already charged in court and undergoing
trial. As long as the privilege of
immunity so given will in the judgment of the PCGG assist it in attaining its greater objectives, the PCGG is well within legal grounds to
exercise this power at any stage of the proceedings. This section 5 immunity frees and releases one from liability,
and as it inures to the benefit of an accused, it can be invoked at any time
after its acquisition and before his final conviction. Our regard for the rights of an accused
dictates this result. Thus, we have
consistently held that laws that decriminalize an act or a grant of amnesty may
be given retroactive effect. They
constitute a bar against the further prosecution of their beneficiaries’
regardless of the appearance of
their guilt. To be sure, the guilt of
the petitioners in Criminal Case No. 11960 has yet to be established beyond
doubt. The PCGG itself does not appear
certain and confident of the strength of its evidence against the petitioners
in said criminal case. The records show
that petitioner Mapa was granted immunity not only because of the information
he gave to the prosecution but also “. . . in light of Republic’s review
of the cases both civil and criminal which it has filed or intends to
file against . . .” him. Similarly, petitioner Vergara was granted immunity “… in light of
Republic’s review of Vergara’s participation in Criminal Case No. 11960
… .” After reviewing its evidence against the petitioners, PCGG appears to
have sensed the sterility of its efforts of continuing their prosecution. Its former chairman, M.A.T. Caparas, learned
that petitioners would file a Motion to Dismiss Criminal Case No. 11960 after
PCGG rest its evidence, “for failure of the prosecution to prove its
case.” In his May 16, 1990 letters to the petitioners, he assured them
that “we shall … offer no objection to its favorable consideration.”
This is a patent admission that petitioners’ Motion to Dismiss has merit and
that the PCGG cannot prove its case against the petitioners in Criminal Case
No. 11960.

Finally, we reject respondent court’s ruling that the grant of
section 5 immunity must be strictly construed against the petitioners. It simplistically characterized the grant as
a special privilege, as if it was gifted by the government, ex gratia. In taking this posture, it misread the raison
d’etre and the long pedigree of the right against self-incrimination vis-a-vis
immunity statutes.

The days of inquisition brought about the most despicable abuses
against human rights. Not the least of
these abuses is the expert use of coerced confessions to send to the guillotine
even the guiltless. To guard against
the recurrence of this totalitarian method, the right against
self-incrimination was ensconced in the fundamental laws of all civilized
countries. Over the years, however,
came the need to assist government in its task of containing crime for peace
and order is a necessary matrix of public welfare. To accommodate the need, the right against self-incrimination was
stripped of its absoluteness. Immunity
statutes in varying shapes were enacted which would allow government to compel a witness to testify despite his plea
of the right against self-incrimination. To insulate these statutes from the virus of unconstitutionality, a
witness is given what has come to be known as transactional or a use-derivative-use
immunity, as heretofore discussed. Quite clearly, these immunity statutes are not a bonanza from
government. Those given the privilege
of immunity paid a high price for it – the surrender of their precious right to
be silent. Our hierarchy of values demands that the right against
self-incrimination and the right to be silent should be accorded greater
respect and protection. Laws that tend
to erode the force of these preeminent rights must necessarily be given a
liberal interpretation in favor of the individual. The government has a right to solve crimes but it must do it,
rightly.

IN VIEW WHEREOF, the resolutions of the respondent
court dated March 7, and June 3, 1991 are annulled and set aside and the
Amended Information against the petitioners in Criminal Case No. 11960 is ordered
dismissed. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado,
Davide, Jr., Romero, Bellosillo, Melo, Quiason, Vitug, and Kapunan, JJ., concur.

^[1]
The Resolution was written by Associate
Justice Romeo M. Escareal. Associate
Justices Jose S. Balajadia, Cipriano A. del Rosario and Sabino R. de Leon, Jr.,
wrote separate concurring opinions. Associate Justice Nathanael M. Grospe dissented.

^[2]
Kawanakoa vs. Polybank, 205 US 349.

^[3]
Philippine Political Law, 1993 ed., p. 115.

^[4]
Dr. Rolando del Carmen, Criminal Law and Procedure, Brooks/Cole Publishing Co.,
p. 336.

^[5]
Ibid.

^[6]
406 US 441 [1992]. See also Joseph
Varon, Searches, Seizures and Immunities, Dobbs-Merrill Co., pp. 731-­733.