TOMORROW, April 23, former Public Works undersecretary Roberto Bernardo will take the witness stand before the Sandiganbayan’s Third Division to begin his testimony in the multibillion-peso flood-control scandal. A number of legal experts have questioned whether his testimony in his new role as the State’s star witness would be valid.
The fundamental legal standard that determines whether one can be a state witness is that he must not be the “most guilty” among those charged, and his testimony must be indispensable to the prosecution’s case. This standard is nonnegotiable because it sacrifices some degree of justice: condoning some crimes in order to successfully prosecute larger ones. However, the more testimony that has been presented from Bernardo and others, the more it has become uncertain whether the standard has been observed in his case or not. Put another way, the multiple accounts presented in court have repeatedly identified Bernardo as the central figure in the transactions being scrutinized, suggesting that he might, in fact, be the “most guilty.”
The various cases being heard by the Sandiganbayan involve a number of flood-control projects across several regions in which public funds were disbursed for the implementation of the projects, but could not be accounted for by project outcomes. All of the projects were either incomplete, woefully substandard or, in some instances, never even begun. Testimonies given so far indicate that these common outcomes were coordinated by a central channel or gatekeeper, and that gatekeeper was Bernardo.
For example, Henry Alcantara, the former Department of Public Works and Highways (DPWH) Region 3 district engineer who is also a state witness, testified that he handed over approximately P1.8 billion in funds to Bernardo. However, he admitted under oath that he had no direct knowledge or documentation of where the money went. Alcantara also acknowledged that many of his other actions were according to assurances given by Bernardo, rather than on verified instructions with records in the DPWH workflow.
Unlike Alcantara, whose legitimacy as a state witness is based on his clearly having a subordinate role in the entire operation being unmasked in court, the revelations so far are only increasing skepticism of the prosecution’s decision to utilize Bernardo as a state witness. Other factors also raise questions, such as the multiple, inconsistent affidavits executed by Bernardo since his appearance in Senate hearings last year on the flood-control scandal. Bernardo’s commitment to return up to P290 million in ill-gotten funds to the government, which was a requirement for his being designated by prosecutors as a state witness, is also problematic because it is tangible evidence of his involvement in the corrupt transactions being examined in court.
No one is arguing that the use of a state witness is not a legitimate prosecutorial tool; it has been a long-accepted and highly successful method of obtaining convictions of the most heinous criminals. But as one longtime jurist we spoke with emphasized, no prosecutor — the Ombudsman in this case — “should not put all the proverbial eggs in the basket woven by (former) undersecretary Bernardo.”
We can find many examples of state witnesses being employed correctly and effectively in the number of high-profile trials of Mafia leaders in the US in the late 1990s, such as that of the one-time boss of the powerful Gambino crime family, the infamous John Gotti. His conviction was largely made possible by the testimony of a key state witness, his own underboss Sammy “The Bull” Gravano.
However, there were two key differences between the way the prosecution in Gotti’s trial used Gravano, and how the prosecution in the flood-control cases seems to be using Bernardo. First, Gravano’s testimony was used to “fill in the blanks,” so to speak, in the larger story being created by the prosecution; his testimony was used to corroborate and add detail to other hard evidence that had been gathered, and hard evidence was used, in turn, to corroborate Gravano’s testimony. Second, even though Gravano’s testimony was critical to securing Gotti’s conviction as the leader of a massive, violent criminal enterprise, Gravano’s own considerable guilt was not completely excused. He was exempted from many serious charges, but not entirely freed from criminal accountability, which made his testimony all the more credible.
A state witness should definitely not be one who would turn out to be the public official who orchestrated the grand theft of public funds, because his testimony admitting his own direct acts of amassing those funds is the very acts punished as the crime of plunder. Unless the prosecutors can establish beyond a doubt that the trail of corruption did not end at Bernardo’s desk, they risk losing the opportunity to hold anyone substantially accountable for the scandal.
