Justice Secretary Vitaliano Aguirre has no authority to anoint Janet Napoles as state witness in the multi-billion peso PDAF scam.

The special prosecutor of the Office of the Ombudsman, who is prosecuting Napoles, and the Sandiganbayan where the plunder cases against her are pending, are the ones vested with the authority to convert Napoles from an accused to a state witness.

Section 17 of Rule 119 of the Rules of Court on criminal procedure, in relation to Section 10 of R.A. 6981 (Witness Protection, Security and Benefit Act), provides that: “upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the State” when the court is satisfied that the said accused “does not appear to be the most guilty”, among other prerequisites.

Verily, it is the special prosecutor of the Office of the Ombudsman who shall initially determine the qualification of Napoles to become a state witness.

Upon motion of the prosecutor, the Sandiganbayan has the jurisdiction to decide whether or not to discharge Napoles as state witness.

In either case, Aguirre has neither jurisdiction nor authority to intervene in the process of discharging an accused to become a state witness.

Both under Section 10 of R.A. 6981 and Section 17 of Rule 119 of the Rules of Court, it is only the accused who “appears not to be the most guilty” who is entitled to be discharged as a state witness.

Under any standard, one who is accused as the mastermind for plotting and executing the crime, like Napoles, cannot pretend “not to be the most guilty”.

EDCEL C. LAGMAN