Supreme Court junks government bid in ETPI case vs Marcos

MANILA, Philippines - The Supreme Court (SC) has junked the bid of the government to submit additional evidence in a civil suit against the late strongman Ferdinand Marcos and several others in pursuit of alleged ill-gotten wealth in several corporations, including Cable and Wireless Limited in Eastern Telecommunications Philippines Inc. (ETPI).

The high court dismissed the petition of the Presidential Commission on Good Government (PCGG) appealing a decision of the Sandiganbayan on Feb. 7, 2002 after justices voted 7-7 in consecutive full-court sessions last Dec. 6 and 13.

SC rules provide that a petition shall be dismissed and the lower court ruling shall be affirmed in a tie vote of justices.

In its 61-page ruling penned by Justice Arturo Brion, the court held that the “the issue before us does not involve the applicability of the rule on mandatory taking of judicial notice; neither is the applicability of the rule on discretionary taking of judicial notice seriously pursued.”

“Rather, the petitioner approaches the concept of judicial notice from a genealogical perspective of treating whatever evidence offered in any of the children cases as evidence in the parent case…or of the whole family of cases,” the SC said.

It stressed that “to the petitioner, the supposed relationship of these cases warrants the taking of judicial notice.”

“It is the duty of the petitioner, as a party-litigant, to properly lay before the court the evidence it relies upon in support of the relief it seeks, instead of imposing that same duty on the court…We therefore refuse, in the strongest terms, to entertain the petitioner’s argument that we should take judicial notice of the Bane deposition,” the SC decision read.

Bane was former director and treasurer-in-trust of ETPI. His testimony was taken in London, England on Oct. 23 and 24, 1996 by way of deposition by the Philippine government on oral examination before Consul General Ernesto Castro of the Philippine embassy there. This was done during the pendency of an incident in another civil case related to government’s urgent petition to increase ETPI’s authorized capital stock, where the deposition was considered by the anti-graft court.

Although the subject civil case was filed in 1987, it was only in 1996 and 1997 that the first pre-trial conference was scheduled and concluded. In its pre-trial brief, the government offered to present Bane, among its witnesses.

In 1998, the Sandiganbayan denied the government’s motion to adopt the Bane deposition as evidence because only Victor Africa cross-examined Bane. Africa was not impleaded in this civil case although his late father Jose was among the original respondents. Aside from Jose Africa, also named as original respondents were the Marcoses, Manuel Nieto Jr., Roberto Benedicto, Juan Ponce Enrile, Ferdinand Marcos, Jr., and Potenciano Ilusorio.

The majority held that the contents of the Bane deposition was not an issue unless the former can be established as a competent evidence. It held that the statement of authority cited on the effect of consolidation was lifted out of context and stressed that the purpose of consolidation was to aid the court in dispatching its business. Likewise, it held that the dissent ignored due process and misstates Sandiganbayan’s action. Lastly, it held that issue here was not simply one of technicality saying “the petitioner’s burgeoning lapses coupled with the due process concern which even the Sandiganbayan apparently ignored deserve more than a treatment of ‘technicality’ from this Court.”