The Sandiganbayan has denied a motion filed by businessman Ernest de Leon Escaler to reconsider its ruling that allowed the taking by Minister and Consul in Germany Gerardo P. Abiog of the deposition of the former consul in Switzerland Lilibeth V. Pono as part of the government’s evidence in a forfeiture case on alleged ill-gotten wealth.
Pono, now charge d’affaires in Germany, was former consul in Berne, Switzerland. While detailed in Switzerland, Pono issued certificate of authentication on certain documents relevant to the forfeiture case.
Escaler is a respondent in the forfeiture case together with former Justice Secretary Hernando "Nani" B. Perez, Perez’s wife, Rosario, and brother-in-law, Ramon Antonio Arceo Jr. The case was filed by the Office of the Ombudsman (OMB)
The case arose from the alleged demand made by Perez for $2 million from former Manila Rep. Mario Crespo, more popularly known as Mark Jimenez, in 2001.
The money was reportedly in exchange for the exclusion of Jimenez in the plunder investigation against former President Joseph "Erap" Estrada over the multi-billion-peso Caliraya-Botocan-Kalayaan (CBK) power plant project.
On Aug. 30, 2022, the Sandiganbayan’s third division granted the motion of OMB’s prosecutors to take the testimony of Pono through deposition to be administered by Abiog.
In his motion, Escaler said that "the testimony of Ms. Lilibeth V. Pono cannot be taken through deposition before the Minister and Consul, Mr. Gerardo P. Abiog, the latter being an employee of Petitioner (Philippine government) in this case, and is therefore expressly disqualified under Section 13, Rule 23 of the 2019 Amendments to the Rules on Civil Procedure."
Section 13 states: “No deposition shall be taken before a person who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of the parties; or who is a relative within the same degree, or employee of such counsel; or who is financially interested in the action.”
OMB’s prosecutors opposed Escaler’s motion which they described as “totally absurd.”
In a resolution issued last Nov. 8, the anti-graft court said: “After a judicious assessment of the arguments raised by respondent Escaler in his subject motions, the consolidated comment/opposition thereto of the prosecution, the applicable laws and jurisprudence on the matter, the Court finds absolutely no basis to grant the same.”
The anti-graft court also said:
“Since Mr. Abiog is the Minister and Consul at the Philippine Embassy in Berlin, Germany, he is fully-clothed with the authority to conduct the deposition taking of Ms. Pono.
“As correctly argued by the prosecution, giving credence to respondent Escaler's contention that Mr. Abiog is disqualified to conduct the deposition because he is an ‘employee’ of the Republic of the Philippines will only lead to absurdity.
“Indeed, a literal and short-sighted interpretation of the word ‘employee’ in Section 13, Rule 23 of the Rules of the Court, as amended, would even lead to the disqualification of the Members of this Court from hearing this case as they are also ‘employees’ of the Republic of the Philippines.
“Here, as discussed above, Mr. Abiog is not an employee of the OMB which instituted the present case. He is a Minister and Consul at the Philippine Embassy in Berlin, Germany, which is under the DFA, and which agency is not a party to this case.
“Thus, the evil sought to be avoided by Section 13, Rule 23 of the Rules of Court, as amended, i.e., interest of the deposition officer in the outcome of the action, will highly unlikely occur should Mr. Abiog be authorized to preside the deposition taking of Ms. Pono.
“WHEREFORE, respondent Ernest De Leon Escaler's (1) Omnibus Motion Ii] For Reconsideration of this Honorable Court's 30 August 2022 Resolution, and Iii] To Disqualify the Honorable Minister and Consul, Mr. Gerardo P. Abiog, from taking the deposition of the Honorable Lilibeth V. Pono, dated October 5, 2022, and (2) Opposition and Motion to Defer the Taking of Deposition of the Hon. Lilibeth V. Pono}, dated October 17, 2022, are hereby DENIED for utter lack of merit.
“The taking of the deposition by written interrogatories of Ms. Lilibeth V. Pono before Mr. Gerardo P. Abiog, Minister and Consul at the Philippine Embassy, located at Luisenstrasse 16, 10117 Berlin, Germany. The petitioner is given a NON-EXTENDIBLE PERIOD OF FORTY-FIVE (45) DAYS from notice hereof within which to complete and terminate the said deposition. SO ORDERED.”
Presiding Justice Amparo M. Cabotaje-Tang wrote the 11-page resolution with the concurrence of Associate Justices Bernelito R. Fernandez and Ronald B. Moreno.
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