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).
VENUE –
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).
SELF-INCRIMINATION.
-
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
