The Office of the Solicitor General (OSG) has urged the Court of Appeals (CA) to reverse its ruling which thumbed down the Department of Justice’s (DOJ) bid to obtain the deposition of Mary Jane Veloso, who is currently detained in Indonesia, to be used in the prosecution of her alleged illegal recruiters in the Philippines.

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In a 43-page motion for reconsideration, dated January 16, the OSG argued that the December 13 decision of the appellate court’s former Eleventh Division ignored Veloso’s “extraordinary circumstance” of being an OFW who was convicted of drug trafficking, sentenced to death, but granted reprieve, thus, remains in prison in Yogyakarta, Indonesia.

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Veloso was sentenced to death by the District Court of Justice of Sleman in Yogjakarta on October 11, 2010. The death sentence was upheld on February 10, 2011 by the Court of Appeals of Yogjakarta, and on May 31, 2011 by the Supreme Court of Indonesia.

She was, however, able to get a reprieve on the basis of qualified trafficking charges filed against Maria Cristina Sergio and Julius Lacanilao.

The OSG said the ruling runs counter to a Supreme Court ruling that “utmost freedom governs the taking of depositions to allow the widest scope in the gathering of information by and for all parties in relation to their pending case.”

And while the appellate court recognized the right of the accused, the OSG said it “gravely disregarded” the equal right of the state, through the DOJ, to use deposition in the criminal action. The motion pointed out that this is permitted in the Rules of Court, such as under Section 1, Rule 111.

Taking Veloso’s testimony by deposition will not violate Sergio and Lacanilao’s constitutional rights, the OSG said, as the taking will be similar to the practice in other countries, such as the US, certain exceptions are admitted and that deposition may be allowed.

The OSG said the ruling undermines the State’s treaty obligations under the Asean Mutual Legal Assistance Treaty (MLAT) and unjustly deprived the prosecution of its substantial rights.

The writ of preliminary injunction should be dissolved as it violates Office of the Court Administrator Circular No. 79-03 dated 12 June 2003 as well as applicable jurisprudence that no injunction may be issued enjoining criminal prosecution, the OSG said.

In its assailed decision, the appellate court said the trial court violated the 1987 Philippine Constitution and Revised Rules on Criminal Procedure which accord the accused the right to meet the witnesses against them face to face or the right to confrontation.

The appellate court also pointed out that under the said rules “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.”

The CA also said Presiding Judge Anarica Castillo-Reyes of Baloc, Sto. Domingo, Nueva Ecija Regional Trial Court Branch 88 did not have any territorial jurisdiction to preside over or observe the taking of Veloso’s deposition, which was also contained in her assailed ruling.

“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,” the CA said.

“[T]he first and fundamental duty of the court is to apply the law,” the CA explained.