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A Philippine perspective

"We need to revisit and review the usefulness of the HCCH Evidence Convention on the Taking of Evidence."

 

This article is an excerpt from the lecture I delivered in the Hague Conference on Private International Law (webinar series) on 17 September 2020.

One of the difficulties of taking testimonies in a foreign country is dealing with their procedural rules and processes. While the world today is borderless and people may easily move from country to country, the taking of evidence has to comply with the legal formalities and requirements of the state where the evidence will be obtained. Now more than ever, when the world is in a pandemic, there is a need for our country to revisit and review the usefulness of the HCCH Convention on the Taking of Evidence.

As a young lawyer in the 90s, one of my first experiences in taking evidence outside the Philippines was through written interrogatories. I still remember reviewing carefully the provisions of Rule 23, Sections 25 and 26 of the Rules of Civil Procedure to faithfully comply with its requirements on forms and the periods in which to prepare written direct examination and redirect examination questions. These written interrogatories together with the cross and re-cross interrogatories of the opposing counsel were then collated and were sent to our consular officer in a foreign country where the deponent resides. I vividly remember when I sought the assistance of the Department of Foreign Affairs to liaise with the Philippine consular office in the foreign country. Years have passed and I have yet to receive the responses/answers to the written interrogatories.

The difficulty in taking evidence outside the country was even highlighted in the case of Dulay v. Dulay (G.R. No. 158857, November 11, 2005). In this case a sibling assisted his brother and a nephew to migrate to the United States. Rodrigo, a former Filipino citizen, took care of his brother and nephew; and because of his trust and affection toward his nephew Pfeger he opened a deposit account with the amount of $230,000.00 under his name. Both the brother and the nephew returned to the Philippines and squandered the money. In a complaint instituted in the Philippines by Rodrigo against his brother Godofredo and nephew Pfeger for the recovery of the sum of money with a prayer for writ of attachment, he applied for letters rogatory to take the deposition of several witnesses residing abroad which was granted by the court (G.R. No. 158857, November 11, 2005).

Letters rogatory is a request to a foreign country to give aid, backed by its power, to secure the desired information. If the request is entertained by the foreign country the methods of procedure to be followed are those of the foreign tribunal (Dulay v. Dulay, G.R. No. 158857, November 11, 2005). As it turned out, the deposition was not taken before the Clerk of Court of Massachussets who was the addressee of the letters rogatory, but was instead taken before the notary public in New York. The deposition taken through the notary public in New York, though originally not accepted by the Philippine court, had to be authenticated by a Philippine Consulate in the United States.

In a recent 2019 decision, the Supreme Court in the case People v. Sergio and Lacanilao applied suppletorily in a criminal case Rule 23 of the Rules of Civil Procedure because of compelling reasons and the right to due process of Mary Jane Veloso and the State (G.R. No. 240053, October 9, 2019). It has long been settled in the cases of Manguerra v. Risos and Go v. People in relation to Rule 119, Section 15, Rules of Criminal Procedure that the deposition or conditional examination (testimony ahead of the trial) of the prosecution witness in criminal cases will be taken only in the court where the case is pending, and it must be shown that the witness is either too sick or infirm to appear at the trial, or has to leave the Philippines with no definite day of returning.

The Supreme Court said that “Mary Jane is currently imprisoned in Indonesia for having been convicted of the crime of drug trafficking” and “she was already sentenced to death and is only awaiting her execution by firing squad.” Her situation according to the Supreme Court was not akin to a person whose limitation of mobility is by reason of ill-health or the grounds cited in Rule 119, Section 15. In fact, her restriction of movement is due to deprivation of liberty by reason of her detention in a foreign country(G.R. No. 240053, October 9, 2019). Hence, the taking of the written interrogatories of Mary Jane Veloso was allowed not under the restrictive provisions of Rule 119, Section 15 but under Rule 23.

With the challenges faced in the taking of evidence in a foreign country, including the present global pandemic, it is high time for the Philippines to consider acceeding to the HCCH Convention on the Taking of Evidence. The Convention applies to both civil or commercial matters in a judicial proceeding which is requested by a Contracting State from the competent authority of another Contracting State. The means by which the evidence or some “other judicial act” shall be taken is through a Letter of Request. The Convention requires that the evidence obtained through the Letter of Request shall be used only in judicial proceedings (Article 1, HCCH Convention on Taking of Evidence).

The Contracting States to the Convention shall designate and form a Central Authority which will undertake the receipt of Letters of Request coming from a judicial authority of another Contracting State and to transmit them to the competent authority within the State to execute them. (Article 1, HCCH Convention on Taking of Evidence). The method and procedures to be followed in the taking of evidence is the law of the judicial authority which executes the Letter of Requests (Article 9, HCCH Convention on Taking of Evidence).

The Contracting States to the Convention shall designate and form a Central Authority which will undertake the receipt of Letters of Request coming from a judicial authority of another Contracting State and to transmit them to the competent authority within the State to execute them. (Article 1, HCCH Convention on Taking of Evidence). The method and procedures to be followed in the taking of evidence is the law of the judicial authority which executes the Letter of Requests (Article 9, HCCH Convention on Taking of Evidence).

The simplicity and efficacy of the system established under the HCCH Convention is that the Letters of Requests shall be sent to the Central Authority of the State of execution without the need for transmission through any other authority of that State (Article 2, HCCH Convention on Taking of Evidence). This effectively shortens the process of taking evidence which was usually prolonged by the formalities to be observed in a country where the evidence is to be obtained, the administrative approvals to be secured, and the loss of evidence in transit due to circuitous processes.

The usual pragmatic concern among lawyers in the taking of evidence is the possibility of the refusal of the State of Execution to entertain the Letter of Request. The execution of a Letter of Request may be refused by the State of Execution if: (a) the execution of the Letter does not fall within the functions of the judiciary; or (b) its sovereignty or security would be prejudiced (Article 12, HCCH Convention on Taking of Evidence).

The Convention allows the taking of evidence before a diplomatic officer, consular agent or commissioner in aid of judicial proceedings commenced in the State he represents (Articles 15, 16, 17 and 18, HCCH Convention on Taking of Evidence). The taking of evidence may be by permission or compulsion authorized by competent authority. Any unsuccessful attempt to take evidence due to the refusal of the person concerned shall not prevent an application by Letters of Request (Article 22, HCCH Convention on Taking of Evidence).

The Contracting Parties to the Convention on the Taking of Evidence signed the Convention more than fifty years ago on 18 March 1970, deposited it in the archives of the Government of Netherlands and sent it through the diplomatic channels of the Contracting States represented at the Eleventh Session of the Hague Conference on Private International Law. Five decades have passed but the Convention remains as relevant as it was then. With the simplified and organized Convention there is no reason why our country should not look seriously on its usefulness for our judicial proceedings.

The number of civil and commercial cases in the Philippines through the years has grown immensely and the need to efficiently develop legal methods and systems is extremely necessary. Our Supreme Court, being fully aware of the need for a prompt and reliable legal system that includes the taking of evidence has taken measures to amend the Rules of Civil Procedure and Evidence to expedite legal proceedings. These measures include electronic filing and service and video-conferencing. It also played an essential role in the Philippines becoming a Contracting Party to the Convention Abolishing the Requirements of Legalization for Foreign Documents, otherwise known as the Apostille Convention. All these initiatives in the legal system will in the end prop the Philippines up towards a transitional economy.

Topics: Tranquil G.S. Salvador III , Hague Conference on Private International Law
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