Considering that the matter of the perpetuation of the testimony of Janet NAPOLES has been raised in the media, it is timely to review the applicable provisions of the Rules of Court.
There are 2 kinds of perpetuation of testimony under the 1997 Rules of Civil Procedure:
(a) while an action is “pending” (covered by Rule 23, 1997 Rules of Civil Procedure) and
(b) “before” an action is filed and while an “appeal is “pending” (covered by Rule 24, id.).
In the case of Napoles, her pending criminal case (Regional Trial Court, Makati City) is serious illegal detention, a non-bailable felony.
It is not the main concern of the Filipino people now.
The main interest of the country lies in the full revelation of the modus operandi and the complete facts and money flow relative to the heinous and unprecedented P10-Billion pork barrel scams perpetrated by Napoles and her co-conspirators in the Executive and the Legislative for the period 2007-2009 as reported by the Commission of Audit under the term of Pres. Gloria Arroyo (and, in theory, even up to the current term of Pres. Ninoy Aquino).
The Ombudsman and the Department of Justice, assisted by the National Bureau of Investigation, are still in the process of gathering all the evidence for purposes of filing the proper criminal Informations before the Sandiganbayan for plunder, malversation of public funds and falsification of public and private documents against Napoles and her co-conspirators in the Executive and the Legislative. (We do not have information on the final deadline set by the Ombudsman and the DOJ for such purpose).
What rules govern the perpetuation of testimonies?
RULE 24, 1997 Rules of Civil Procedure (“DEPOSITIONS BEFORE ACTION OR PENDING APPEAL”) governs the matter of the perpetuation of the testimony of a party/witness “before” an action is filed and while an appeal is pending.
Rule 24 was originally RULE 134 of the 1989 RULES OF EVIDENCE (“PERPETUATION OF TESTIMONY”).
Rule 24 is the rule that is applicable to Napoles as of this time. No action is pending against her as of now.
Rule 23, on the other hand, applies to the perpetuation of testimony of a party or witness in a “pending” action or a “pending appeal”.
PERPETUATION OF TESTIMONY UNDER RULE 24;
HOW COMMENCED –
A person, like NAPOLES, who desires to perpetuate her “own testimony or that of another person” regarding any matter that may be cognizable in any court of the Philippines, may file a “verified petition” in the court of the place of the residence of “any expected adverse party”. (Sec. 1, Rule 24).
The venue of the aforementioned “verified petition” is “the place of the residence of any expected adverse party”.
In contrast, under Rule 4 (“Venue of Actions”), the regular rules on venue for “ordinary civil actions” are as follows:
1. Venue of real actions.—“Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated”. (Sec. 1, Rule 4).
2. Forcible entry and detainer actions shall be commenced and tried in “the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated”. (Id.)
3. Venue of personal actions.—“All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff”. (Sec. 2, Rule 4).
4. Venue of actions against nonresidents.—“If any of the defendants does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found”. (Sec. 3, Rule 4).
5. When Rule 4 not applicable.— “This Rule shall not apply (a) In those cases where a specific rule or law provides otherwise; or (b) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof”. (Sec. 4, Rule 4).
VERIFIED PETITION FOR THE
PERPETUATION OF TESTIMONY -
The verified petition for the perpetuation of the testimony of a party/witness shall be entitled in the name of the petitioner and shall show:
(a) that “the petitioner expects to be a party to an action” in a court of the Philippines “but is presently unable to bring it or cause it to be brought”;
(b) the “subject matter” of the expected action and his interest therein;
(c) the “facts which he desires to establish” by the proposed testimony “and his reasons for desiring to perpetuate it”;
(d) the “names or a description of the persons he expects will be adverse parties and their addresses so far as known”; and
(e) the “names and addresses of the persons to be examined” and the “substance of the testimony which he expects to elicit from each”, and shall ask for “an order authorizing the petitioner to take the depositions of the persons to be examined” named in the petition for the purpose of perpetuating their testimony. (Sec. 2, Rule 24).
NOTICE AND SERVICE. –
The “petitioner” shall “serve a notice upon each person named in the petition as an expected adverse party”, together “with a copy of the petition”, stating that the petitioner will apply to the court, “at a time and place named therein”, for the order described in the petition. In addition, at least twenty (20) days before the date of the hearing, “the court shall cause notice thereof to be served on the parties and prospective deponents” in the manner provided for service of summons. (Sec. 3, Rule 24).
ORDER AND EXAMINATION. –
If the court is satisfied that the perpetuation of the testimony “may prevent a failure or delay of justice”, it shall “make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination” and “whether the depositions shall be taken upon oral examination or written interrogatories”. The depositions may then be taken “in accordance with Rule 23 before the hearing”. (Sec. 4, Rule 24).
Rule 23 refers to DEPOSITIONS PENDING ACTION.
USE OF DEPOSITION. –
If a deposition to perpetuate testimony is taken under the Rule 24, or if, although not so taken, it would be admissible in evidence, “it may be used in any action involving the same subject matter subsequently brought” in accordance with the provisions of “sections 4 and 5 of Rule 23”. (Sec. 6, R24).
Under Sec. 4 of Rule 23, at the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, “may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof”.
Under the foregoing Section 4, Rule 23, the deposition may be used in accordance with any one of the following provisions:
“x x x.
(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness;
(b) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose;
(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(1) that the witness is dead; or
(2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or
(3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or
(4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
(5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; and
(d) If only part of a deposition is offered in evidence by a party; the adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. (4a, R24).
X x x.”
The general rule is that Napoles as an accused must personally appear and testify in a pending criminal case, upon a subpoena issued by the trial court, to reveal her complete participation in the commission of the felonies charged, in which case, in effect, she waives her right against self-incrimination during her direct, cross, redirect, and recross examinations in court.
Her deposition as a deponent (accused) may be used, in her absence, only in the specific situations and under the legal provisions and limitations mentioned above, i.e., Sec. 4, Rule 23.
RULE 23 (DEPOSITIONS PENDING ACTION). –
Rule 23 (“depositions pending action”) is the basis for the “regular deposition” that the public know, that is, a deposition in a “pending” civil action.
In the present case of NAPOLES, there is no pending civil or criminal action yet that has been filed by the Ombudsman against her and her co-conspirators in the Legislative and the Executive before the Sandiganbayan for plunder, malversation, and falsification of public and/or private documents.
In such case, Rule 24 applies.
But the mechanics or principles on the taking and the use of the deposition are governed by Rule 23, by incorporation and reference made in Rule 24.
Depositions pending action,
when may be taken under Rule 23. -
By “leave of court” and “after jurisdiction has been obtained over any defendant or over property which is the subject of the action” (or “without such leave after an answer has been served”), the testimony of “any person”, whether a party or not, may be taken, “at the instance of any party”, by deposition upon “oral examination or written interrogatories”. (Sec. 1, Rule 23).
The attendance of witnesses may be “compelled by the use of a subpoena” as provided in Rule 21. (Id.).
Depositions pending an action shall be taken only in accordance with Rule 23. (Id.).
The deposition of a “person confined in prison”, as in the case of NAPOLES. may be “taken only by leave of court on such terms as the court prescribes”. (Id.).
Scope of examination.—
Unless otherwise ordered by the court as provided by section 16 or 18 of Rule 23, the deponent may be examined regarding:
1. “any matter, not privileged”,
2. “which is relevant to the subject of the pending action”,
3. “whether relating to the claim or defense of any other party”,
4. “including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things” and
5. including “the identity and location of persons having knowledge of relevant facts”. (Sec. 2, Rule 23)
Examination and cross-examination.—
“Examination and cross-examination of deponents” may proceed as permitted at the trial under “sections 3 to 18 of Rule 132” (Rules of Evidence). (Sec. 3, Rule 23).
Objections to admissibility.—
Subject to the provisions of section 29 of Rule 23, “objection may be made at the trial or hearing” to receiving in evidence any deposition or part thereof “for any reason which would require the exclusion of the evidence” if the witness were then present and testifying. (Sec. 6, Rule 23). The grounds for the objection should be clearly stated during the trial so that the trial judge may rule on it with clarity and dispatch.
Effect of taking depositions.—
A party shall “not be deemed to make a person his own witness for any purpose by taking his deposition”. (Sec. 7, Rue 23). The reason is that the taking of the deposition in a pending action is a mode of DISCOVERY.
The introduction in evidence of the deposition or any part thereof for any purpose “other than that of contradicting or impeaching the deponent” makes the deponent “the witness of the party introducing the deposition”, but this shall not apply to the use by an adverse party of a deposition as described in paragraph (b) of section 4 of this Rule 23. (Sec. 8, Rule 23).
As stated earlier, Sec. 4 (b), Rule 23, referred to above, provides that “the deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose”.
Persons before whom depositions
may be taken within the Philippines.—
Within the Philippines, depositions must be taken before “any judge, notary public, on the person referred to in section 14” of Rule 23. (Sec. 10, Rule 23).
Under Sec. 11, Rule 23, in a “foreign state or country”, depositions may be taken:
(a) on notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the Republic of the Philippines;
(b) before such person or officer as may be appointed by commission or under letters rogatory; or
(c) the person referred to in section 14 of Rule 23.
Sec. 14, Rule 23 referred to above provides that “if the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths, at any time or place, in accordance with these Rules, and when so taken may be used like other depositions”. (Sec. 14, Rule 23).
A “commission or letters rogatory” is issued by the trial court “only when necessary or convenient, on application and notice, and on such terms and with such direction as are just appropriate”. Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory “may be addressed to the appropriate judicial authority in the foreign country”. (Sec. 12, Rule 23).
Procedures and Mechanics
for the Taking of the Deposition. -
A “party” desiring to take the deposition of “any person” upon “oral examination” shall give “reasonable notice in writing to every other party to the action”. (Sec. 15, Rule 23).
The notice shall “state the time and place for taking the deposition” and the “name and address of each person to be examined”, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. On motion of any party upon whom the notice is served, “the court may for cause shown enlarge or shorten the time”. (Sec. 15, R24)
A “party” desiring to take the deposition of “any person” upon “written interrogatories” shall serve them upon “every other party” with “a notice stating the name and address of the person who is to answer them” and the “name of descriptive title and address of the officer before whom the deposition is to be taken”. (Sec. 25, Rule 23).
Within ten (10) days thereafter, a party so served may serve “cross-interrogatories” upon the party proposing to take the deposition. Within five (5) days thereafter, the latter may serve “re-direct interrogatories” upon a party who has served cross-interrogatories. Within three (3) days after being served with re-direct interrogatories, a party may serve “recross-interrogatories” upon the party proposing to take the deposition. (Id.).
Orders for the protection of parties and deponents.—
After the service of the interrogatories and prior to the taking of the testimony of the deponent, the court in which the action is pending, “on motion promptly made by a party or a deponent”, and “for good cause shown”, may:
1. make any order specified in sections 15 (“deposition upon oral examination; notice; time and place”), Sec. 16 (“orders for the protection of parties and deponents”) and Sec. 18 (“motion to terminate or limit examination”) of Rule 23 which is appropriate and just or
2. an order that the deposition shall not be taken before the officer designated in the notice or
3. that it shall not be taken except upon oral examination. (Sec. 28, Rule 23).
In the case of Napoles, if she decides to perpetuate her testimony as a potential accused in future pork barrel-related criminal cases that the Ombudsman may file against her and her co-conspirators in the Executive and the Legislative, the legal effects thereof are:
(a) to waive her constitutional right to remain silent (right against self-incrimination) as an accused, or, at the very least,
(b) to expose herself to the rigors and prejudicial effects of thorough and adversarial cross and recross examinations by the Prosecution (even if during such adversarial examinations she invokes her right to remain silent).
- Atty. Manuel J. Laserna Jr.
Las Pinas City, PH