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Republic of the Philippines ie COURT OF APPEALS Manila MARIA CRISTINA P. SERGIO, ET AL., Petitioners, - Versus - Recewed Dates CA-G.R. SP NO. 149002 HON. ANARICA J. CASTILLO-REYES, ET AL, Respondents. x December 13, 2017 (2:10 PM) NOTICE OF DECISION ‘Sir/Madam: Please take notice that on December 13, 2017 a Decision, copy hereto attached, was rendered by the FORMER ELEVENTH DIVISION, Court of Appeals, in the above-entitled case, the original copy of which is on file with this office. You are hereby REQUIRED to INFORM this Court within five (5) days from receipt hereof the date when you received this notice. Copy Furnished: ty. Minera F Lopezseg w! re atonal Union of People's Lawyers 3" Floor Enthrna Buding | Maarain comer Matatag Steet, Central Distt, 1100 Quezon City (counsel for privat respondents) ice ofthe Solicitor General-zeg wre 134 Amorsolo St, Legaspi Vil 1229 Makati City (counsel for people ofthe phils.) Ay. Ana Lise M, Sorianoweg w/re Public Atorney’s Office DO) Agencies Bulding [NIA Rood cor, East Ave, Diliman M08 Quezon City (counsel for petitioners) Hon, Anarica J. Castillo Reyes-tog w 16 Presiding fudge, RTC ~ Branch 88 alos, Sto. Domingo, Nueva Ezia Respectfully Yours, TERESITA R. MARIGOMEN Clerk of Cs EVANGELI) Division - LLAMAS ik of Court Maria Cristina Serion y Pasadilareg we Jus Lazanlao y Largeres wi ‘Nueva Eola Provincial Jail (NEP) ‘Mahrlka High Brgy. Caalibangbangan, 3100 Cabanaian Cly, Nueva Eclia, Hon. Olivia Larova-Torevillaseg We ‘Asitant State Prosecutor Department of Justice Pade Faura St, Ermita, 1000 Manila 4. Bato Je de Republic of the Philippines - COURT OF APPEALS Manila FORMER ELEVENTH DIVISION MARIA CRISTINA iP: CA-G.R. SP NO. 149002 SERGIO and JULIUS L. LACANILAO, Members: Petitioners, BATO, JR., Chairperson, BARRIOS, and - versus - FRANCISCO, JJ. HON. ANARICA J. CASTILLO-REYES, in her capacity as Presiding Judge of REGIONAL TRIAL COURT, Branch 88, Baloc, Sto. Domingo, Nueva Ecija, and PEOPLE OF THE Promulgated: PHILIPPINES, pec 13 2 Respondents. Neosor sce scescc roses assess sere cee CERTIFIED ‘COPY DECISION Any. EVANG! R. LLAMAS BATO, JR. Srmmton Sings of Covet This resolves the Petition for Certiorari and Prohibition assailing the Resolutions’ dated 16 August and 3 November 2016 issued by Presiding Judge Anarica J. Castillo-Reyes [Branch 88, Regional Trial Court, Sto. Domingo, Nueva Ecija] in Criminal Case Nos. SD (15)- 3723. The factual antecedents: Mary Jane F. Veloso ("Mary Jane") was convicted of drug trafficking in Indonesia and was sentenced to death. On 31 March 2015, representatives from the Philippine Drug Enforcement Agency [PDEA], the Philippine National Police [PNP] Crime Laboratory and the Department of Foreign Affairs proceeded to Wirugonan Prison in Yogyakarta, Indonesia to interview Mary Jane. The latter executed a document denominated as a Sinumpaang Salaysay ni Mary Jane Fiesta Veloso® wherein she stated that it was Maria Cristina P. Sergio Rollo, pp. 31-43; pp. 44-60. Rolo, pp. 82-98 CA-G.R. SP NO. 149002 2 DECISION (“Sergio”) who recruited her and that it was a certain Ike who bought her bag. Accordingly, Director General Arturo G. Cacdac, Jr. of the PDEA recommended the filing of a case against Sergio for Illegal Recruitment under Republic Act No. 10022° and a case for violation of Republic Act No. 9208 (otherwise known as the Anti-Trafficking in Persons Act of 2003). Pursuant to the Resolution’ issued by the Department of Justice [DOJ], the corresponding Informations for violations of Republic Act No. 8042° and Article 315, paragraph 2 (a), of the Revised Penal Code were filed against Sergio and Julius Lacanilao [hereafter jointly referred to as the petitioners] before the Regional Trial Court [Branch 88, Sto. Domingo, Nueva Ecija’) respectively docketed as SD (15)-3724 and SD (15)-3753.° An Information for Qualified Trafficking in Persons under R.A. No. 9208 was likewise filed against the petitioners and Alias “Ike” before the same court, docketed as Criminal Case No. SD-(15)-3723. The petitioners were duly arraigned and both pleaded “not guilty” to the offenses charged.” Subsequently, the People of the Philippines (herein complainant) filed a Motion for Leave of Court to Take the Testimony of Complainant Mary Jane Veloso by Deposition Upon Written Interrogatories [hereafter referred to as the subject motion] in Criminal Case No. SD-(15)-3723 and alleged therein that prior to Mary Jane's scheduled execution, the Philippine government, through the DOJ, requested the Indonesian government to stop the execution on the ground that her testimony is needed to prosecute and convict the petitioners who were then in the custody of the PNP. Her execution was suspended and the Indonesian government has imposed the following conditions, viz.: (1) Mary Jane shall remain in detention in Yogyakarta, Indonesia; (2) no cameras may be used in the taking of her testimony; (3) none of the lawyers in the case shall be present during the taking of her testimony; and (4) the questions to be propounded must be in writing. The complainant alleged that the taking of Mary Jane's testimony through the use of deposition upon AN ACT AMENDING REPUBLIC ACT NO. 8042, OTHERWISE KNOWN AS THE MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT OF 1995, AS AMENDED. FURTHER IMPROVING THE STANDARD OF PROTECTION AND PROMOTION OF THE WELFARE OF MIGRANT WORKERS, THEIR FAMILIES AND OVERSEAS FILIPINOS IN DISTRESS, AND FOR OTHER PURPOSES + Rollo, p.79. * Rollo, pp. 99-114 © Migrant Workers and Overseas Filipinos Act of 1995. Originally fled before Regional Trial Court, Branch 37, Baloc, Sto. Domingo, Nueva Ecija presided by Judge Nelson A. Tribiana who subsequently inhibited from the case, Rolo, pp. 8 and 628 Rollo, pp. 526-527, Rollo, p $28 Rollo, pp. 136 CA-G.R. SP NO. 149002 3 DECISION written interrogatories is allowed under Rule 23"' of the Revised Rules of Civil Procedure considering that she is out of the country and that she will not be able to testify personally before the court by reason of her incarceration. Likewise, it alleged that Rule 23 applies suppletorily in criminal proceedings and that the use of deposition upon written interrogatories in criminal cases is not expressly prohibited under the Rules of Court. Also, it alleged that Rule 119 of the Revised Rules of Criminal Procedure does not squarely cover Mary Jane's predicament. Further, it alleged that the Supreme Court has allowed the dispensation of direct testimony in open court under the Rules of Procedure for Environmental Cases (A.M. No. 09-6-8- SC) and the Judicial Affidavit Rule (AM. No. 12-8-8-SC). Lastly, it alleged that the petitioners will have every opportunity to cross- examine Mary Jane by propounding their own set of written interrogatories through the designated consular officer who will be taking the deposition and that they are not precluded from objecting to the questions and answers. Their objections will be duly noted and ruled upon by the court and the latter may be apprised of the demeanor of the deponent on the basis of the consul's personal observation thereof. Thus, the complainant prayed that the testimony of Mary Jane be allowed to be taken by deposition upon written interrogatories before Consul Shirlene Mananquil or any other available consular officer of the Philippine Embassy in Jakarta, Indonesia in accordance with the procedure prescribed under Rule 23, The petitioners filed their Vehement Comment and Opposition” wherein they averred that the taking of the deposition should be made before and not during the trial as stressed in People v. Webb.”° They averred that the depositions taken pursuant to Rules 23 and 25" are not designed to replace the actual testimony of the witness in open court and the use thereof should be solely confined to civil cases. They also averred that the non-applicability of Rule 23 in criminal cases has been settled in Vda. De Manguerra v. Risos'* and Go, et al. v. People." They claimed that the proposed method of taking Mary Jane's testimony is violative of their right to confront the witnesses or to meet them face to face guaranteed under Section 14 (2) of the 1987 Philippine Constitution. In this connection, they claimed that under Section 15, Rule 119 of Revised Rules of Criminal DEPOSITIONS PENDING ACTIONS. ® Rollo, pp. 148-162 GR. No. 132577, 17 August 1999. INTERROGATORIES TO PARTIES. ® GR No, 12643, 28 August 2008. GR No, 185527, 18 July 2012 CA-G.R. SP NO. 149002 4 DECISION Procedure the conditional examination of witnesses shall be conducted before the judge or the court where the case is pending and in the presence of the accused. Finally, they claimed that the prosecution's reliance on the Rules of Procedure for Environmental Cases and the Judicial Affidavit Rule is misplaced because unlike in this case, the affiants therein are still subject to cross-examination by the adverse party. In its Reply,” the complainant asserted that the strict construction of Section 15, Rule 119 in the cases cited by the petitioners cannot be made in the instant case considering that Mary Jane is prevented from attending the trial not because of advanced age and sickness but because of her status as a convict in the death row of Wirogunan Prison in Yogyakarta, Indonesia. It asserted that the applicability of depositions in criminal actions was recognized in People v. Webb even as it limited the application therefor within the time provided for filing a pre-trial motion. However, this requirement of timeliness cannot be imposed in this case as it was Mary Jane's imprisonment which had prevented her from giving her testimony. The complainant stressed that strong considerations of substantive justice are manifest in this case, thus, justifying the application of Rule 23. It likewise stressed that it is securing the attendance of the respondent Judge at the deposition-taking to personally observe the process and her presence will also serve to remind Mary Jane of the sanctity of her oath and enhance the prospect of bringing out the truth. After an exchange of several pleadings by the parties, the respondent Judge issued the assailed Resolution on 16 August 2016. the dispositive portion of which reads. “IN VIEW OF THE FOREGOING REASONS, leave of court is hereby GRANTED to the Prosecution to take the testimony of Mary Jane Veloso by way of deposition upon written interrogatories in accordance with Rules 23 and 25 of the Revised Rules of Court under the following terms and conditions: 1. Considering that the Prosecution has already submitted their proposed questions in the written interrogatories, the accused through counsel, is given a period of ten (10) days from receipt of this Resolution to submit their comment to the proposed questions on the deposition upon written interrogatories for the witness Mary Jane Veloso. Upon receipt of the Comment, the Court shall promptly rule on the objections; Rollo, pp. 164-177 CA-G.R. SP NO. 149002 5 DECISION 2. The Court shall schedule the taking of the deposition in Yogyakarta, indonesia, which shall be presided by the undersigned trial judge. The final questions for the deposition {after ruling on the Defense objections), shall be propounded by the Consul of the Philippines in the Republic of Indonesia or his designated representative. The answers of the deponent to the written interrogatories shall be taken verbatim by a competent staff in the Office of the Philippine Consulate in the Republic of Indonesia; 3. The transcribed copy of the answers of the deponent shall be furnished the accused, through counsel, who shall thereafter submit their proposed cross _interrogatory questions to the Prosecution within ten (10) days from receipt: 4. The Prosecution is given the same period of ten (10) days from receipt of the proposed cross interrogatory questions of the Defense stating the ground for the objections. Upon receipt of the comment, the Court shall promptly rule on the objections; 5. The Court shall schedule the conduct of the cross interrogatory questions for the deposition of Mary Jane Veloso in Yogyakarta, Indonesia, which shall be presided by the undersigned trial judge. The final questions for the written cross interrogatories (after ruling on the Prosecution's objections), shall be propounded by the Consul of the Philippines in the Republic of Indonesia or his designated representative. The answers of the deponent to the written cross interrogatories shall be taken verbatim by a competent staff in the Office of the Philippine Consulate in the Republic of Indonesia: 6. Unless the Prosecution opts to conduct re-direct written interrogatories, the testimony of Mary Jane Veloso by way of deposition upon written interrogatories shall be deemed terminated. In case the Prosecution propounds re-direct written interrogatories on the deponent, the above- mentioned procedure for the conduct of direct and cross interrogatories shall be observed. SO ORDERED." Respondent Judge granted the complainant's motion based on the following grounds: (1) Rule 23 can be applied in a suppletory manner as Section 15, Rule 119 cannot be applied to Mary Jane because her incarceration in a foreign country incapacitates her from deciding to take the witness stand; (2) the denial of the prosecution's ® Rollo, pp. 42-43, CA-G.R. SP NO. 149002 6 DECISION motion would result in a highly inequitable situation where the sole witness relied upon by the prosecution to establish its case would be denied the opportunity to present her case due to procedural technicalities; (3) the deposition sought is specifically aimed at perpetuating the testimony of Mary Jane and it may be allowed at any stage of the proceedings; and (4) the offense involved in this case is qualified human trafficking which is a major transnational crime and is a policy concern among nations. As regards the petitioners’ constitutional right of confrontation, the respondent Judge ruled that the same is duly safeguarded because they have the right to conduct, cross written interrogatories to test the veracity and trustworthiness of Mary Jane's testimony which shall be taken before the respondent Judge, thereby affording the latter the chance to observe her demeanor and guarding against unreliable and rehearsed testimony. The petitioners filed their Omnibus Motion for Reconsideration and to Suspend Period of Time to File Comments to Proposed Questions for Deposition of Mary Jane Veloso (Re: Resolution dated August 16, 2016) and insisted that Rule 119 and the pronouncements in Vda. De Manguerra v. Risos and Go, et al. v. People must be applied in this case since Mary Jane's situation is akin to a witness who is sick or infirm as the prison bars of a foreign country presents a limitation on her mobility. They argued that the respondent Judge has violated their right to meet or confront the prosecution witnesses face to face and that her presence during the deposition taking is of no moment because they will not be afforded the opportunity to be present and their counsel will not be given the opportunity to timely object to the questions propounded to Mary Jane. They asserted that the opportunity for cross examination must be afforded to them at the time when the testimony is given in open court and not during the deposition-taking. Lastly, they asserted that the court should balance the right of the State to prosecute law violators with the right of the accused to confront the prosecution witnesses. On 3 November 2016, the RTC issued a Resolution denying the petitioners' Omnibus Motion. Hence, the petitioners filed this present recourse anchored on the following grounds: “1 WHETHER THE PUBLIC RESPONDENT PRESIDING JUDGE COMMITTED GRAVE ABUSE OF DISCRETION IN ALLOWING THE DEPOSITION UPON WRITTEN INTERROGATORIES OF PROSECUTION WITNESS MARY JANE VELOSO, WHO CANNOT TRAVEL TO THE PHILIPPINES DUE TO HER BEING A DEATH ROW CONVICT FOR DRUG TRAFFICKING CA-G.R. SP NO. 149002 7 DECISION IMPRISONED IN ANOTHER COUNTRY. u WHETHER THE PUBLIC RESPONDENT PRESIDING JUDGE COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN RULING THAT SHE CAN TRAVEL TO A FOREIGN COUNTRY TO PRESIDE OVER THE PROCEEDINGS IN THE CONDUCT OF THE DEPOSITION- TAKING OF MARY JANE VELOSO, IN CLEAR VIOLATION OF THE PARAMETERS OF BP. 129 ESTABLISHING THE JURISDICTION OF THE REGIONAL TRIAL COURTS."”® Anent the first ground, the petitioners argue that the respondent Judge could not legally allow the deposition upon written interrogatories in a criminal case of a prosecution witness who is outside the Philippines because it would be contrary to the constitutional right of an accused to meet the witnesses face to face or the right of confrontation under Section 14 of the 1987 Philippine Constitution. They argue that the non-applicability of Rule 23 of the Revised Rules of Civil Procedure in criminal cases has long been settled in the cases of Vda. De Manguerra v. Risos and Go, et al. v. People which had strictly disallowed depositions in criminal cases of prosecution witnesses who were outside the Philippines. Also, they argue that the subject motion was belatedly filed as a deposition should be taken before and not during the trial. Anent the second ground, the petitioners argue that a Philippine Judge could not just proceed to another country to conduct a court session thereat since this would not only violate the right to confrontation accorded to an accused but also the provisions of Batas Pambansa Bilang 29.” They argue that the taking of Mary Jane's deposition in Indonesia is outside the jurisdiction of the respondent Judge and whether she would preside over the deposition taking or act as a mere observer will not deviate from the fact that she would be officially travelling thereto to conduct court proceedings and to receive evidence in violation of BP 129. Hence, the petitioners argue that the respondent Judge committed grave abuse of discretion amounting to lack or in excess of jurisdiction when she granted the subject motion Meanwhile, the People of the Philippines, thru the Office of the Solicitor General [OSG], asserts in its Comment” that the outright dismissal of the petition is warranted in view of the following circumstances, viz.: (1) the petitioners failed to state the date when they had actually received the Resolution dated 3 November 2016; "Rolo p13 © The Judiciery Reorganization Act of 1980 Rollo, pp. £22-556. CA-G.R. SP NO. 149002 8 DECISION (2) they have other plain and adequate remedies since they could proceed to trial and assert their innocence by propounding questions to Mary Jane; and (3) their allegations necessarily require the factual determination of the probative value of the evidence or testimony to be taken of Mary Jane which is not a proper subject for certiorari. It contends that the petitioners had failed to demonstrate and specify any act of the respondent Judge which would amount to grave abuse of discretion since she has sufficiently and exhaustively explained the factual and legal basis for granting the subject motion. In this connection, it posits that Mary Jane is absolutely barred from presenting her testimony in open court because of her imprisonment in Indonesia and that the same is a material fact that requires the suppletory application of Rule 23. Moreover, it contends that the respondent Judge's territorial jurisdiction will not be violated since judges cannot be deprived of their role and unique opportunity to observe the deportment and demeanor of the witnesses. Mary Jane's parents, Celia and Cesar Veloso, had also filed their Comment.” In the interim, the respondent Judge issued a Resolution® setting the taking of the deposition at Yogyakarta, Indonesia on 27 April 2017 and has submitted a Request for Travel Authority* to Court Administrator Midas P. Marquez for the inclusive period of 26 to 28 April 2017 for the purpose of observing the deposition proceedings to be administered by the Philippine Consular Official therein Accordingly, at the instance of the petitioners, this Court has issued a Temporary Restraining Order’® dated 24 March 2017 enjoining and directing all the respondents to cease and desist from implementing the assailed Resolutions during the effectivity thereof. Celia and Cesar Veloso filed a Motion for Reconsideration® prompting the petitioners to file their Comment (to the Motion for Reconsideration dated 10 April 2017) With Motion to Expunge” arguing therein that the Velosos' motion does not deserve consideration because the People of the Philippines is the real party-in-interest in this case and it can only be represented by the OSG. Subsequently, this Court issued a Resolution® on 22 May 2017 granting the petitioners’ application for the issuance of a Writ of Preliminary Injunction. ® Rollo, pp. Rollo. pp. Rollo. pp. 3 Rollo, pp. 406-408. Rollo, pp. 527-521 Rollo. pp. 6 ® Rollo, pp. 606-611 CA-G.R. SP NO. 149002 9 DECISION Before discussing the substance of this case, We deem it best to address the preliminary issues raised by the parties. As regards the supposed failure of the petitioners to state the date when they had actually received the Resolution dated 3 November 2016 in their petition, We find that the latter had explicitly stated therein that the same was promulgated on 10 November 2016. They had also sufficiently explained in their Consolidated Reply” that it was during the hearing on this date when the respondent Judge gave the copies thereof to both the prosecution and the defense. Anent the complainant's argument that the issues raised in the petition involve a factual determination of the probative value of the evidence or testimony to be taken of Mary Jane, thusly, not a proper subject for certiorari, the petitioners had correctly asserted that “the factual issues and merits of the main case are not the issues presented here, but only the legality and propriety of the method being peddled by the prosecution in allowing the deposition to proceed under Rule 23 despite the lack of legal authority to do so under established laws, Rules of Court and jurisprudence.” With respect to the pleadings filed by Celia and Cesar Veloso, We agree with the petitioners that these do not deserve any consideration. The settled doctrine that the People of the Philippines or the State is the offended party in criminal cases. Besides, they were not impleaded as respondents in this case. At any rate, the arguments that they have raised in their Comment are substantially similar to those raised by the OSG which will be evaluated, passed upon and considered below. Going now to the substance of the petition, the Court finds the same to be impressed with merit. A special civil action for certiorari under Rule 65 will prosper only if grave abuse of discretion is alleged and proved to exist. By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law. In addition, grave abuse of discretion also refers to palpable errors of jurisdiction or to violations of the Constitution, the law and jurisprudence.*’ In the present case, We find that the petitioners have sufficiently established that the respondent Judge has committed grave abuse of discretion when it * Rollo, pp. 567-583. Rollo, p. 873. Pascual v. Burgos, et al, G.R. No. 171722, 11 January 2016 CA-G.R. SP NO. 149002 10 DECISION granted the subject motion. Generally, the examination of witnesses must be done orally before a judge in open court.* This is true especially in criminal cases where the Constitution secures to the accused his right to a public trial and to meet the witnesses against him face to face under Section 14 (2) thereof. The requirement is the safest and most satisfactory method of investigating facts as it enables the judge to test the witness’ credibility through his manner and deportment while testifying. The rule is not without exceptions, however, as Rules 23 to 28 of the Rules of Civil Procedure recognize the conditional examination of witnesses and the use of their depositions as testimonial evidence in lieu of direct court testimony. Thus, these rules allow the taking of depositions in civil cases, either upon oral examination or written interrogatories, before any judge, notary public or person authorized to administer oaths at any time or place within the Philippines; or before any Philippine consular official, commissioned officer or person authorized to administer oaths in a foreign state or country, with no additional requirement except reasonable notice in writing to the other party.* On the other hand, for purposes of taking the deposition in criminal cases, more particularly of a prosecution witness who would foreseeably be unavailable for trial, the testimonial examination should be made before the court, or at least before the judge, where the case is pending as required by the clear mandate of Section 15, Rule 119 of the Revised Rules of Criminal Procedure, to wit: “SEC. 15. Examination of witness for the prosecution. - When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused. or in his absence after reasonable notice to attend the examination has been served on him shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused.” In the instant case, the respondent Judge erred in granting the subject motion on the ratiocination that Rules 23 and 25 are ® Go etal v People, supra. citing Section 1, Rule 132, Rules of Court Go, et al. v. People, supra. citing Francisco, R.J.. Evidence, 1993 Edition, p. 437 “ Go. et al. v. People, supra. citing Sections 1, 10, 11, 14 and 15, Rule 23, 1987 Rules of Civil Procedure CA-G.R. SP NO. 149002 1 DECISION applicable in criminal cases. In Vda. De Manguerra v. Risos and Go, et al. v. People, the Supreme Court has elucidated that the modes of discovery prescribed by Rules 23 to 28 of the Rules of Civil Procedure is only applicable to civil cases. In Vda. De Manguerra v. Risos, the accused (Risos, et al.) were charged with Estafa Through Falsification of Public Document before the RTC [Cebu City] pursuant to the complaint filed by Concepcion Cuenco Vda. De Manguerra (‘Concepcion’). Although she was a resident of Cebu City, she was unexpectedly confined at the Makati Medical Center while on vacation in Manila. The private prosecutor then filed a motion to take the deposition of Concepcion due to her weak physical condition and old age which limited her freedom of mobility. The RTC granted the motion and directed that her deposition be taken before the Clerk of Court of Makati City. However, this Court ruled that the examination of prosecution witnesses is governed by Section 15, Rule 119 and not Rule 23 which only applies to civil cases. Pursuant to the specific provision of Section 15, Rule 119, the deposition should have been taken before the judge or the court where the case is pending, which is the RTC of Cebu, and not before the Clerk of Court of Makati City The Supreme Court upheld the foregoing pronouncement in this wise: “Petitioners contend that Concepcion’s advanced age and health condition exempt her from the application of Section 15. Rule 119 of the Rules of Criminal Procedure, and thus, calls for the application of Rule 23 of the Rules of Civil Procedure The contention does not persuade. XXX XXX XXX Undoubtedly, the procedure set forth in Rule 119 applies to the case at bar. It is thus required that the conditional examination be made before the court where the case is pending. It is also necessary that the accused be notified, so that he can attend the examination, subject to his right to waive the same after reasonable notice. As to the manner of examination, the Rules mandate that it be conducted in the same manner as an examination during trial, that is, through question and answer. XXX XXX XX Petitioners further insist that Rule 23 applies to the instant case, because the rules on civil procedure apply suppletorily to criminal cases. CA-G.R. SP NO. 149002 12: DECISION It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of civil procedure apply to all actions, civil or criminal, and special proceedings. In effect, it says that the rules of civil procedure have suppletory application to criminal cases. However, it is likewise true that the criminal proceedings are primarily governed by the Revised Rules of Criminal Procedure. Considering that Rule 119 adequately and squarely covers the situation in the instant case, we find no cogent reason to apply Rule 23 suppletorily or otherwise. To reiterate, the conditional examination of a prosecution witness for the purpose of taking his deposition should be made before the court, or at least before the judge, where the case is pending. Such is the clear mandate of Section 15, Rule 119 of the Rules. We find no necessity to depart from, or to relax, this rule. As correctly held by the CA, if the deposition is made elsewhere, the accused may not be able to attend, as when he is under detention. More importantly, this requirement ensures that the judge would be able to observe the witness deportment to enable him to properly assess his credibility. This is especially true when the witness testimony is crucial to the prosecutions case. While we recognize the prosecution's right to preserve its witness testimony to prove its case, we cannot disregard rules which are designed mainly for the protection of the accused's constitutional rights. The giving of testimony during trial is the general rule. The conditional examination of a witness outside of the trial is only an exception, and as such, calls for a strict construction of the rules.” [Citations omitted Emphasis supplied] Meanwhile, in Go, et al. v. People, the accused (Go, et al.) were charged with Other Deceits under Article 318 of the Revised Penal Code pursuant to the complaint filed by Li Luen Peng who had since returned to Laos, Cambodia. The private prosecutor moved for the taking of his oral deposition and alleged that he was being treated for lung infection in Cambodia and that he could not make the long travel to the Philippines by reason of ill health. The motion was granted by the Metropolitan Trial Court but was reversed by the RTC on the ground that, “Section 17, Rule 23 on the taking of depositions of witnesses in civil cases cannot apply suppletorily to the case since there is a specific provision in the Rules of Court with respect to the taking of depositions of prosecution witnesses in criminal cases, which is primarily intended to safeguard the constitutional rights of the accused to meet the witness against him face to face.” In upholding this ruling, the Supreme Court declared that the suggested suppletory application of Rule 23 in the testimonial examination of an CA-G.R. SP NO. 149002 13 DECISION unavailable prosecution witness has been categorically ruled out in Vda. De Manguerra. It reiterated that while it is true that the rules of civil procedure have suppletory application to criminal cases, it is likewise true that criminal proceedings are primarily governed by the Revised Rules of Criminal Procedure. Hence, it ruled that there is no cogent reason to apply Rule 23 suppletorily considering that Rule 119 adequately and squarely covers the situation in that case. In the instant case, the prosecution has failed to establish any compelling reason to justify the application of Rule 23._As correctly pointed out by the petitioners, the procedure set forth in Rule 119 and the pronouncements in Vda. De Manguerra v. Risos and Go, et al. v. People should be applied in this case because just like a witness who is sick or infirm, Mary Jane's imprisonment in Indonesia presents a limitation on her mobility. In addition, the conditional examination of witnesses in criminal proceedings are primarily governed by Rule 119 of the Revised Rules of Criminal Procedure as emphasized in Vda. De Manguerra v. Risos and Go, et al. v. People. It is thus required that the taking of her deposition or her conditional examination be made before the court where the case is pending and that the petitioners be notified thereof so that they can attend the examination. Certainly, to take the deposition of the prosecution witness elsewhere and not before the very same court where the case is pending would deprive a detained accused of his right to attend the proceedings.*> More importantly, it would be violative of the fundamental consideration that the 1987 Philippine Constitution secures to the accused, i.e. the right to meet the witnesses face to face or the right of confrontation. The right to confront a witness applies with particular urgency in criminal proceedings, for at stake is a man’s personal liberty, universally cherished among all human rights ee Article Ill, Section 14 (2) of the Constitution states: “in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the Vda. De Manguerra v. Risos, supra % People v. Estibal, G.R. No, 208749, 26 November 2014 CA-G.R. SP NO. 149002 14 DECISION accused provided that he has been duly notified and his failure to appear is unjustifiable.” [Emphasis, supplied] This right was echoed in Rule 115, Section 1 (f) of the Revised Rules on Criminal Procedure which explicitly provides: “Section 1. Rights of accused at trial, - In all criminal prosecutions, the accused shall be entitled to the following rights Xxx XXX XXX (f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him.” {Emphasis, supplied] It bears stressing that the right of confrontation is one of the fundamental rights guaranteed by the Constitution and the Rules of Court to the person facing criminal prosecution who should know, in fairness, who his accusers are and must be given a chance to cross- examine them on their charges. This right has a two-fold purpose: (1) to afford the accused an opportunity to test the testimony of witnesses by cross-examination, and (2) to allow the judge to observe the deportment of witnesses. Verily, the chief purpose of the right of confrontation is to secure the opportunity for cross-examination. In fine, the right to confrontation is essentially a guarantee that a defendant or an accused may cross-examine the witnesses of the prosecution.” Corollarily, the object of cross-examination is to weaken or disprove the case of one’s adversary, and break down his testimony in chief, test the recollection, veracity, accuracy, honesty and bias or prejudice of the witness, his source of information, his motives. interest and memory, and exhibit the improbabilities of his testimony.° On this score, the respondent Judge ruled that the petitioners will have the right to conduct cross written interrogatories to test the veracity and trustworthiness of Mary Jane's testimony. However, it is worthy to note that there is a great deal of difference Ho Wai Pang v. People, G.R. No, 176229, 18 October 2011 citing People v. Libo-on, 410 Phil 378 (2001) People v. Monje |. GR. No, 146689, 27 September 2002. CA-G.R. SP NO. 149002 15 DECISION between the face to face confrontation in a public criminal trial in the presence of the presiding judge and the cross-examination of a witness in a foreign place outside the courtroom, in the absence of a trial judge.* The ruling in Go, et al. v. People is instructive on this matter: “x xx In the aptly cited case of People v. Estenzo, the Court noted the uniqueness and significance of a witness testifying in open court, thus The main and essential purpose of requiring a witness to appear and testify orally at a trial is to secure for the adverse party the opportunity of cross-examination "The opponent’, according to an eminent authority, ‘demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross examination which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.’ There is also the advantage of the witness before the judge, and it is this - it enables the judge as trier of facts ‘to obtain the elusive and incommunicable evidence of a witness’ deportment while testifying, and a certain subjective moral effect is produced upon the witness. It is only when the witness testifies orally that the judge may have a true idea of his countenance, manner and expression, which may confirm or detract from the weight of his testimony. Certainly, the physical condition of the witness will reveal his capacity for accurate observation and memory, and his deportment and physiognomy will reveal clues to his character. These can only be observed by the judge if the witness testifies orally in court, x x x.” [Citations omitted] In this case, it may not be amiss to state that the purpose of a cross-examination could not be accomplished because the respondent Judge herself stated in the Resolution of 16 November 2016 that “the final questions for the written cross interrogatories x x x shall be propounded by the Consul of the Philippines in the Republic of Indonesia or his designated representative.” Hence, there can neither be a “direct and personal putting of questions and obtaining immediate answers” by the petitioners or their counsel nor a “subjective moral effect produced upon the witness.” Likewise, the respondent Judge may not accurately obtain a true idea of Mary Jane's countenance, manner and expression as these can only be observed by the judge if the witness testifies orally in court. The complainant cannot seek refuge in People v. Webb where Go. et al v People, supra CA-G.R. SP NO. 149002 16 DECISION the Supreme Court supposedly recognized the applicability of depositions in criminal actions. In that case, it was the accused (Webb) who filed a motion to take the depositions of several persons who were residents of the United States of America. The trial court denied the same on the ground that the taking of a deposition is not allowed by Section 4, Rule 24 and Sections 4 and 5 of Rule 119. Ina certiorari suit, this Court reversed the same and ruled, among others, that a reading of the rules on criminal procedure, specifically Section 4, Rule 119 vis-a-vis Section 1, Rule 23 of the Rules of Civil Procedure would reveal no inconsistency so as to exclude the application of the latter rule in criminal proceedings. In reversing the foregoing ruling, the Supreme Court held that the evidence to be obtained through the deposition-taking would be superfluous or corroborative at best. It has also declared that “the use of discovery procedures is directed to the sound discretion of the trial judge" and “that the deposition taking can not be based nor can it be denied on flimsy reasons.” \n any event, the Supreme Court has declared in the 2012 case of Go, et al. v. People: “It must be emphasized that while the prosecution must provide the accused every opportunity to take the deposition of witnesses that are material to his defense in order to avoid charges of violating the right of the accused to compulsory process, the State itself must resort to deposition-taking sparingly if it is to guard against accusations of violating the right of the accused to meet the witnesses against him face to face. Great care must be observed in the taking and use of depositions of prosecution witnesses to the end that no conviction of an accused will rely on ex parte affidavits and deposition.”*° {Emphasis supplied] In fact, to ensure the petitioners’ right to meet the witnesses face to face or the right of confrontation, it has been held that if it is the prosecution that seeks to depose the complaining witness against the accused, the stringent procedure under Section 15, Rule 119 cannot be ignored (i.e. the conditional examination of a prosecution witness shall be made before the court where the case is pending) without violating the constitutional rights of the accused to due process.*' Taking into account that the conditional examination or the taking of the deposition of a prosecution witness must take place at no other place than the court where the case is pending, the respondent Judge has clearly curtailed the petitioners’ right to meet Mary Jane face to face or the right of confrontation when she granted the subject motion and allowed the taking of her deposition before the Go. et al. v, People, supra. citing See Cruz, 1., Constitutional Law. 1996 Edition, p. 324 Go, etal v. People, supra CA-G.R. SP NO. 149002 17 DECISION Philippine consular official in Yogyakarta, Indonesia We are not unmindful of the gravity of the offenses charged against the petitioners. Likewise, We are not oblivious of the sad and unfortunate fate that befell Mary Jane. However, the circumstances in this case call for the application of Rule 119 which categorically states that the conditional examination of a prosecution witness shall be made before the court where the case is pending in light of the constitutionally enshrined right of the petitioners to meet the witnesses face to face or the right of confrontation and cross- examination. Especially since the cross-examination of a witness is an absolute right, not a mere privilege, of the party against whom he is called.*? As succinctly declared in Vda. De Manguerra v. Risos: “While we recognize the prosecution's right to preserve the testimony of its witness in order to prove its case, we cannot disregard the rules which are designed mainly for the protection of the accused's constitutional rights. The giving of testimony during trial is the general rule, The conditional examination of a witness outside of the trial is only an exception, and as such, calls for a strict construction of the rules.” To reiterate, grave abuse of discretion also refers to palpable errors of jurisdiction or to violations of the Constitution. the law and jurisprudence.*? Under the circumstances obtaining in this case, the respondent Judge has violated Article Ill, Section 14 (2) of the Constitution and Rule 115, Section 1 (f) of the Revised Rules on Criminal Procedure relative to the right of the petitioners to meet the witness face to face or the right of confrontation. She has also disregarded the jurisprudential precepts laid down by the Supreme Court in Vda. De Manguerra v. Risos and Go, et al. v. People. Ergo, the respondent Judge has committed grave abuse of discretion when it granted the Motion for Leave of Court to Take the Testimony of Complainant Mary Jane Veloso by Deposition Upon Written Interrogatories. While We commiserate with the plight of Mary Jane and recognize the prosecution's need to take and perpetuate her testimony, unless and until the aforementioned constitutional and statutory provisions are revised, modified or amended, We have no other option but to apply the same. Verily, the first and fundamental duty of the Court is to apply the law.* In view of all the foregoing, We need not belabor the issue of © People v. Monje, et al, G.R. No, 146689, 27 September 2002 “ Pascual v. Burgos, et al,, G.R. No. 171722, 11 January 2016, Philippine Veterans Bank v. Callangan, G.R. No. 191995, 3 August 2011 citing People v. Mapa, GR. No. L-22301, 30 August 1967. CA-G.R. SP NO. 149002 18 DECISION respondent Judge's territorial jurisdiction to preside over or observe the taking of Mary Jane's deposition in Yogyakarta, Indonesia. WHEREFORE, the Petition for Certiorari and Prohibition is GRANTED. The Resolutions dated 16 August 2016 and 3 November 2016 issued by Presiding Judge Anarica J. Castillo-Reyes [Branch 88, Regional Trial Court, Sto. Domingo, Nueva Ecija] in Crimirial Case No. SD-(15)-3723 are REVERSED and SET ASIDE. The Writ of Preliminary Injunction earlier issued is thus made permanent.“ SO ORDERED. RAMOMHSEAE, up. Associate Justice WE CONCUR ORIGINAL SIGNED mance SkRMBs RENATO C. FRANCISCO Associate Justice Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, | certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. ORIGINAL SIGNED RAMON M. BATO, JR. Associate Justice Chairperson, Former Eleventh Division