The Law on Immunity From Prosecution of Violators of The Anti Drugs Law, the Legal Strategy of Getting the Bigger Fish

The framers of Republic Act 9165 have provided a substantive and procedural requirement on those who could provide information on the violation of the law, when they are themselves charged for violating the law.

Under Section 33, Article II, the law provides, the Implementing Rules and Regulations a more exhaustive and clearer explanation:

“SEC. 33. Immunity from Prosecution and Punishment.- Notwithstanding the provisions of Section 17, Rule 119 of the Rules on Criminal Procedure and the Provisions of Republic Act 6981 or the Witness Protection, Security and Benefit Act of 1991, any person who has violated Sections 7,11, 12, 14, 15, and 19, Article II of the Act, who voluntarily gives information about any violation of Sections 4,5,6,8,10, 13 and 16, Article II of this Act, as well as any commission of the offenses mentioned if committed by a drug syndicate, or any information leading to the whereabouts, identities and arrest of all or nay of the members thereof, and who willingly testifies against such persons as described above, shall be exempted from prosecution or punishment for the offense with reference to which his/her information and testimony were given, and may plead or prove the giving of such information and testimony in bar of such prosecution:

(a) The information and testimony are necessary for conviction of the persons described above;
(b)Such information and testimony are not yet in the possession of the State;
(c) Such information and testimony can be corroborated on its material points;
(d)The informant or witness has not been previously convicted of a crime involving moral turpitude, except when there is no other direct evidence available for the State other than the information and testimony of the said informant or witness; and
(e) The informant or witness shall strictly and faithfully comply without delay, any condition or undertaking, reduced into writing, lawfully imposed by the State as further consideration for the grant of immunity from prosecution and punishment.

Provided further, that this immunity may be enjoyed by such informant or witness who does not appear to be the most guilty for the offense with reference to which his/her information/testimony were given; Provided finally, that there is no direct evidence available for the State except for the information and testimony of the said informant or witness.”

Clarence Paul V. Oaminal, in his book “Textbook on the Comprehensive Dangerous Drugs Act of 2002” cited by the Supreme Court in drug cases, explained:

“What the provision covers? Only for violation of Sections 7,11, 12, 14, 15 and 18. Excluded thereto are violations of Section 5 and 8. An accused therefore for violation of Section 5 and 8 could not avail of the benefit of this provision.”

The book further reads:

“The accused under this provision is different from the accused who is discharged by being a State Witness. For the accused in that case is a co-accused, while under this provision the accused gives information that results to the arrest and subsequent filing of a case to another accused.”

May this be a guide and be of use to our law enforcers in the event that they will have accused who are willing to be informants to get the bigger fish.

About the Author: Clarence Paul V. Oaminal is a lawyer and author of ‘The Textbook on The Comprehensive Dangerous Drugs Act of 2002’. He is the Vice-chairman and Undersecretary of the Dangerous Drugs Board and is the current adviser and presiding officer of Cebu City Anti-Drug Abuse Council. He also hosts the local advocacy program ‘Krimen ug Drugas’ in CCTN Channel 47.