DEAD MANS STATUTE CAN BE WAIVED

Inestate estate of Marcelino Tongco, represented by JOSEFA TONGCO,

administratrix vs. ANASTACIA VIANZON (1927)

July 5, 1894 - Marcelino Tongco and Anastacia Vianzon contracted

marriage.

When Marcelino died in 1925, the court appointed his niece as

administratix (Josefa)

Before the death of Marcelino, he had presented claims in a cadastral

case in which he had asked for titles to certain properties in the name
of the conjugal partnership consisting of himself and his wife, and that
corresponding decrees for these lots were issued in the name of the
conjugal partnership not long after his death.

In the cadastral case, the widow began action in 1926, when she
presented a motion for a revision of certain decrees within the 1-year
period provided by the Land Registration Law. Issue was joined by the
administratrix of the estate.
o The court awarded new certificates of title to Anastacia, as
the exclusive property of her, free from all encumbrances
and liens
o MNT - Denied

The administratrix of the estate began action against Anastacia for the
recovery of specified property and for damages Same as the
cadastral case
o The court declared that of the value of the shares in the
Sociedad Cooperativa de Credito Rural de Orani, to the
amount of P10, belonging to the intestate estate of
Marcelino, which one-half interest must appear in the
inventory of the property of the estate of the deceased
Marcelino
o MNT- Denied

Administratix appealed on both cases. Joined

ISSUE: WON the testimony of the widow must be discarded.
HELD: No. Witness was competent.
The object and purpose of this statute is to guard against the temptation to
give false testimony in regard to the transaction is question on the part of the
surviving party. However, he has neglected the equally important rule that the
law was designed to aid in arriving at the truth and was not designed to
suppress the truth.
The law twice makes use of the word "against." The actions were not brought
"against" the administratrix of the estate, nor were they brought upon claims
"against" the estate. In the first case at bar, the action is one by the
administratrix to enforce demand "by" the estate. In the second case at bar,
the same analogy holds true for the claim was presented in cadastral
proceedings where in one sense there is no plaintiff and there is no
defendant.
In the matter of the estate of George M. Icard, deceased, JOSEPH K.
ICARD vs. CLARO MASIGAN, as special administrator of the estate of
George M. Icard; and EFFIE CARLAND ICARD (1941)

Antamok Central Group of mining claims were originally owned in

common by Fred M. Harden, the deceased George M. Icard, and
Joseph K. Icard. These mining claims were later sold to the Big Wedge
Mining Company, the deed of sale having been executed jointly by the
common owners, Fred M. Harden, George M. Icard, and Joseph K.
Icard, the latter represented by his attorney-in-fact, George M. Icard.

A dispute having arisen as to the price still due under the contract of
sale, the Big Wedge Mining Company filed an action for rescission
against the vendors, Fred M. Harden, George M. Icard, and Joseph K.
Icard, the latter in his personal capacity and as executor of the
deceased George M. Icard.
o Dispute = Settled between parties
o Compromise Agreement was approved by the court
o Pursuant to the compromise, an order was issued decreeing
that the sum of P39,478.16 be paid to Joseph Icard in full

settlement of his personal interest and that of said George

Icard in the Antamok Central Group of mining claims.
o The order directed that said amount be divided between
Joseph K. Icard and the estate of the deceased George M.
Icard in the manner and proportion to be determined by the
probate court.
Joseph Icard filed a claim against the estate of his deceased father
George for services rendered in connection with the development and
location of certain mining claims.
The commissioner of claims allowed the claim of Joseph.
The administrator appealed to the allowance of Josephs claim which
appeal was also allowed.

ISSUE: WON the probate court erred in allowing the claimant to testify to the
services rendered by him in favor of his father, because the action being one
against the administrator of a deceased person, plaintiff cannot be allowed to
testify as to any matter of fact, which occurred before the death of such
deceased person.
HELD: NO.
Section 383, par. 7, of the Code of Civil Procedure, which is now Rule 123,
section 26, paragraph (c), of the Rules of Court, is designed to close the lips
of the party plaintiff when death has closed the lips of the party defendant, in
order to remove from the surviving party the temptation to falsehood and the
possibility of fictitious claims against the deceased.
Here, the purpose of the oral testimony is to prove a lesser claim than what
might be warranted by clear written evidence, to avoid prejudice to the estate
of the deceased, the law has certainly no reason for its application. Ratione
cessante, cessat ipsa lex.
FELIX ASTURIAS, ET AL. vs. COURT OF APPEALS and NICOLAS
MIRAS (1963)

In order to pay his debt to PNB, Nicolas Miras obtained a loan of

P500.00 at 3% interest per month from the spouses Asturias. The loan
was secured by a mortgage in a private document of the land in
question.

After 2 years, Miras, having paid only P30 while his total indebtedness
reached P830, executed a written document of sale with the right to
repurchase within 7 years covering the same property for the amount of
his debt. Although not expressed in the contract, the parties agreed that
the spouses were to be permitted to gather and benefit by the fruits of
the coconut trees planted and growing on the land (for the payment of
Miras debt), while Miras remained in possession of the land, cultivating
the portion not occupied by the coconuts and raising therein other
plants.

After Laureano Asturias died in 1934, and before the death of his widow
in 1937, Miras offered to redeem the property but the latter requested
him to postpone the same to a later date as she had not yet sufficiently
benefited from the capital invested, as the price of copra unexpectedly
went down after 1930. Upon the widow's death, Miras made the same
offer to redeem the property from petitioners herein, successors-ininterest of the spouses, who made the same request as their deceased
mother, and to which request Miras once more agreed.

1 year after the widow's death, petitioners (Spouses children)

discovered a document and noting that it was in the form of a sale, they
agreed to partition the land among themselves notwithstanding the fact
that their father did not include said property in his will and Miras
continued in possession thereof, paying the land taxes thereon.

In 1943, grandchildren of the creditor spouses reconveyed to Nicolas

Miras their 1/5 portion of the property in question, upon receipt from
him of the sum of P210.00, their share of the credit against Miras.

After several years, petitioner attempted to enter the property and tried
to fence the same in order to exclude Miras therefrom.

This prompted Miras to file an action for forcible entry.

TC: Declared that the contract of sale with right of redemption executed by
Nicolas Miras on November 1, 1930 in favor of the spouses Laureano

Asturias and Julia Orozco (petitioners' predecessors-in-interest) covering the

land in question was one of mortgage with usurious interest and therefore
null and void.
CA: Affirmed.
ISSUE: WON the TC erred in admitting and giving credence to the oral
testimony of Miras tending to vary the terms of the pacto de retro sale,
contrary to the survivorship disqualification rule [Sec. 26(c), Rule 123, ROC]
in not holding that the action of plaintiff has already prescribed and that
defendants-petitioners acquired title to the land by prescription, and in
ordering them to refund the alleged usurious interest and the fruits of the
land since 1930.
HELD: Yes. The testimony of Miras is admissible.
The contention that under the rule of survivorship disqualification, the
testimony of Miras is inadmissible to vary the terms of the pacto de retro sale
is untenable because no timely objection has been made against the
admission of such evidence. Also, one of the petitioners (Fell Asturias) was
made to testify on such prohibited matters covered by the exclusion rule. In
view of this, petitioners are correctly deemed to have waived the benefit and
protection of the rule.
Article 4 of the Civil Code (the Provision applicable to this transaction)
provides that "Acts Performed contrary to law are void, except in cases in
which the law itself gives validity to such acts". A contract designed to hide a
usurious agreement not only violates the law but contravenes public policy.
Such a contract cannot be countenanced and is therefore illegal and void
from its inception. Such being the case, the prayer for the declaration of its
nullity is imprescriptible under Article 1410 of the New Civil Code. It is true
that this is a new provision, but its principle is equally applicable to the case
at bar, as was held in the case of Eugenio v. Perdido (G.R. No. L-7083, May
19, 1955) where, deciding that an action to annul a sale made in 1932, in
violation of the Homestead Act, had not prescribed, this Court said:
Under the existing classification, such a contract would be inexistent and the
"action or defense for the declaration" of such inexistence "does not
prescribe" (Article 1410, New Civil Code). While it is true that this is a new
provision, it is nevertheless a principle recognized since Tipton v. Velasco
that "mere lapse of time cannot give efficacy to contracts that are null and
void."
Neither did petitioners acquire title to the land by acquisitive prescription
since it appears from the facts found by the Court of Appeals, that
possession of the property was obtained by the petitioners only in 1946 and
the original complaint was filed in 1948. Their claim that their possession
dates back from 1930 when they started gathering the coconuts from the
land in the form of payment of the usurious interest on the loan is
groundless. The mere fact that from 1930 they were permitted to enter the
land for the purpose of gathering the fruits of the coconuts did not make them
possessors of the property in the concept of owners to entitle them to claim
prescription. Such possession, which was sporadic and by mere tolerance of
the owners and actual possessors of the land cannot be the basis of a claim
of ownership by prescription.
US vs. Antipolo
(By reason of privileged communication) March 6, 1918 Fisher, J.
FACTS: The appellant was prosecuted in the CFI of Batangas, charged
with the murder of one Fortunato Dinal. The trial court convicted him of
homicide and from that decision he was appealed. One of the errors
assigned is based upon the refusal of the trial judge to permit Susana
Ezpeleta, the widow of the man whom the appellant is accused of having
murdered, to testify as a witness on behalf of the defense concerning certain
alleged dying declarations. The witness was called to the stand and having
stated that she is the widow of Fortunato Dinal was asked: "On what
occasion did your husband die?" To this question the fiscal objected upon the
following ground: I object to the testimony of this witness. She has just
testified that she is the widow of the deceased, Fortunato Dinal, and that
being so I believe that she is not competent to testify under the rules and

procedure in either civil or criminal cases, unless it be with the consent of her
husband, and as he is dead and cannot grant that permission, it follows that
this witness is disqualified from testifying in this case in which her husband is
the injured party. Counsel for defendant insisted that the witness was
competent, arguing that the disqualification which the fiscal evidently had in
mind relates only to cases in which a husband or wife of one of the parties to
a proceeding is called to testify; that the parties to the prosecution of a
criminal case are the Government and the accused; that, furthermore the
marriage of Dinal to the witness having been dissolved by the death of her
husband, she is no longer his wife, and therefore not subject to any
disqualification arising from the status of marriage. These propositions were
rejected by the trial judge, and the objection of the fiscal as to the testimony
of the woman Ezpeleta was sustained. To this objection counsel took
exception and made an offer to prove by the excluded witness the facts
which he expected to establish by her testimony. Concerning these facts it is
sufficient at this time to say that some of them would be both material and
relevant, to such a degree that if proven to the satisfaction of the court, they
might have lead to the acquittal of the accused, as they purported to relate to
the dying declarations of the deceased, concerning the cause of his death,
the general purport being that his injuries were due to fall and not to the acts
imputed to the accused.
ISSUE: Whether or not the court erred in excluding the testimony of the
witness Susana Ezpeleta, and that by reason of such exclusion, the accused
was deprived of one of his essential rights.
HELD: YES. On grounds of public policy the wife can not testify against
her husband as to what came to her from him confidentially or by reason of
the marriage relation, but this rule does not apply to a dying communication
made by the husband to the wife on the trial of the one who killed him. The
declaration of the deceased made in extremes in such cases is a thing to be
proven, and this proof may be made by any competent witness who heard
the statement. The wife may testify for the state in cases of this character as
to any other fact known to her. . . . It can not be contended that the dying
declaration testified to by the witness was a confidential communication
made to her; on the contrary, it was evidently made in the furtherance of
justice for the express purpose that it should be testified to in the prosecution
of the defendant. Decision Set Aside. New trial is granted at which the
testimony of the witness Susana Ezpeleta will be admitted.
People vs. Carlos
FACTS: The victim of the alleged murder, Dr. Pablo G. Sityar, in Mary
Chiles Hospital, performed a surgical operation upon the defendant's wife for
appendicitis and certain other ailments. She remained in the hospital until the
18th of the same month, but after her release therefrom she was required to
go several times to the clinic of Doctor Sityar for the purpose of dressing the
wounds caused by the operation. On these occasions she was accompanied
by her husband, the defendant. The defendant admits that he killed the
deceased but maintains that he did so in selfdefense. He explains that he
went to Doctor Sityar's office to protest against the amount of the fee
charged by the doctor and, in any event, to ask for an extension of the time
of payment; that during the conversation upon that subject the deceased
insulted him by telling him that inasmuch as he could not pay the amount
demanded he could send his wife to the office as she was the one treated,
and that she could then talk the matter over with the decease; that this
statement was made in such an insolent and contemptuous manner that the
defendant became greatly incensed and remembering the outrage
committed upon his wife, he assumed a threatening attitude and challenged
the deceased to go downstairs with him and there settle the matter; that the
deceased thereupon took a pocket-knife from the center drawer of his desk
and attacked the defendant, endeavoring to force him out of the office; that
the defendant, making use of his knowledge of fencing, succeeded in taking
the knife away from the deceased and blinded by fury stabbed him first in the
right side of the breast and then in the epigastric region, and fearing that the
deceased might secure some other weapon or receive assistance from the
people in the adjoining room, he again stabbed him, this time in the back.
The court below found that the crime was committed with premeditation and
therefore constituted murder. This finding can only be sustained by taking
into consideration Exhibit L, a letter written to the defendant by his wife and
siezed by the police in searching his effects on the day of his arrest. Counsel

for the defendant argues vigorously that the letter was a privileged
communication and therefore not admissible in evidence.
ISSUE: Whether or not the letter was a privileged communication and
therefore not admissible in evidence.
HELD: NO.
The letter Exhibit L must, however, be excluded for
reasons not discussed in the briefs. The letter was written by the wife of the
defendant and if she had testified at the trial the letter might have been
admissible to impeach her testimony, but she was not put on the witnessstand and the letter was therefore not offered for that purpose. If the
defendant either by answer or otherwise had indicated his assent to the
statements contained in the letter it might also have been admissible, but
such is not the case here; the fact that he had the letter in his possession is
no indication of acquiescence or assent on his part. The letter is therefore
nothing but pure hearsay and its admission in evidence violates the
constitutional right of the defendant in a criminal case to be confronted with
the witnesses for the prosecution and have the opportunity to cross-examine
them. In this respect there can be no difference between an ordinary
communication and one originally privileged. The question is radically
different from that of the admissibility of testimony of a third party as to a
conversation between a husband and wife overheard by the witness.
Testimony of that character is admissible on the ground that it relates to a
conversation in which both spouses took part and on the further ground that
where the defendant has the opportunity to answer a statement made to him
by his spouse and fails to do so, his silence implies assent. That cannot
apply where the statement is contained in an unanswered letter. The
Defendant is Guilty of Simple Homicide.
Cayetano vs. Monsod
(Can be Waived Attorney-Client Privilege) Sept. 3, 1991 Paras, J.
FACTS: Christian Monsod was nominated by President Corazon C. Aquino
to the position of Chairman of the COMELEC in a letter received by the
Secretariat of the Commission on Appointments. Petitioner opposed the
nomination because allegedly Monsod does not possess the required
qualification of having been engaged in the practice of law for at least ten
years. The Commission on Appointments confirmed the nomination of
Monsod as Chairman of the COMELEC. Challenging the validity of the
confirmation by the Commission on Appointments of Monsod's nomination,
petitioner as a citizen and taxpayer, filed the instant petition for certiorari and
Prohibition praying that said confirmation and the consequent appointment of
Monsod as Chairman of the Commission on Elections be declared null and
void. After graduating from the College of Law (U.P.) and having hurdled the
bar, Atty. Monsod worked in the law office of his father. During his stint in the
World Bank Group (1963-1970), Monsod worked as an operations officer for
about two years in Costa Rica and Panama, which involved getting
acquainted with the laws of membercountries negotiating loans and
coordinating legal, economic, and project work of the Bank. Upon returning
to the Philippines in 1970, he worked with the Meralco Group, served as
chief executive officer of an investment bank and subsequently of a business
conglomerate, and since 1986, has rendered services to various companies
as a legal and economic consultant or chief executive officer. As former
Secretary-General (1986) and National Chairman (1987) of NAMFREL.
Monsod's work involved being knowledgeable in election law. He appeared
for NAMFREL in its accreditation hearings before the Comelec. In the field of
advocacy, Monsod, in his personal capacity and as former Co-Chairman of
the Bishops Businessmen's Conference for Human Development, has
worked with the under privileged sectors, such as the farmer and urban poor
groups, in initiating, lobbying for and engaging in affirmative action for the
agrarian reform law and lately the urban land reform bill. Monsod also made
use of his legal knowledge as a member of the Davide Commission, a quast
judicial body, which conducted numerous hearings (1990) and as a member
of the Constitutional Commission (1986-1987), and Chairman of its
Committee on Accountability of Public Officers, for which he was cited by the
President of the Commission, Justice Cecilia Muoz-Palma for "innumerable
amendments to reconcile government functions with individual freedoms and
public accountability and the party-list system for the House of
Representative.
ISSUE: Whether or not the practice of law is not limited to the conduct of
cases in court.

HELD: NO. The nature of the lawyer's participation in decision-making

within the corporation is rapidly changing. The modem corporate lawyer has
gained a new role as a stakeholder in some cases participating in the
organization and operations of governance through participation on boards
and other decision-making roles. Often these new patterns develop
alongside existing legal institutions and laws are perceived as barriers.
These trends are complicated as corporations organize for global operations.
Practice of law under modem conditions consists in no small part of work
performed outside of any court and having no immediate relation to
proceedings in court. It embraces conveyancing, the giving of legal advice on
a large variety of subjects, and the preparation and execution of legal
instruments covering an extensive field of business and trust relations and
other affairs. Although these transactions may have no direct connection with
court proceedings, they are always subject to become involved in litigation.
They require in many aspects a high degree of legal skill, a wide experience
with men and affairs, and great capacity for adaptation to difficult and
complex situations. These customary functions of an attorney or counselor at
law bear an intimate relation to the administration of justice by the courts. No
valid distinction, so far as concerns the question set forth in the order, can be
drawn between that part of the work of the lawyer which involves appearance
in court and that part which involves advice and drafting of instruments in his
office. It is of importance to the welfare of the public that these manifold
customary functions be performed by persons possessed of adequate
learning and skill, of sound moral character, and acting at all times under the
heavy trust obligations to clients which rests upon all attorneys.
Regala vs. Sandiganbayan Sept. 20, 1996 Kapunan, J.
FACTS: The PCGG filed its third amended complaint, stating that the
defendants Eduardo Cojuangco, Jr., Edgardo J. Angara, Jose C.
Concepcion, Teodoro Regala, Avelino V. Cruz, Rogelio A. Vinluan, Eduardo
U. Escueta, Paraja G. Hayudini and Raul Roco of the Angara Concepcion
Cruz Regala and Abello law offices (ACCRA) plotted, devised, schemed.
conspired and confederated with each other in setting up, through the use of
the coconut levy funds, the financial and corporate framework and structures
that led to the establishment of UCPB, UNICOM, COCOLIFE, COCOMARK,
CIC, and more than twenty other coconut levy funded corporations, including
the acquisition of San Miguel Corporation shares and its institutionalization
through presidential directives of the coconut monopoly. Through insidious
means and machinations, ACCRA, being the wholly-owned investment arm,
ACCRA Investments Corporation, became the holder of approximately fifteen
million shares representing roughly 3.3% of the total outstanding capital
stock of UCPB. This ranks ACCRA Investments Corporation number 44
among the top 100 biggest stockholders of UCPB which has approximately
1,400,000 shareholders. On the other hand, corporate books show the name
Edgardo J. Angara as holding approximately 3,744 shares. The
Sandiganbayan held that the ACCRA lawyers may take the heroic stance of
not revealing the identity of the client for whom they have acted, i.e. their
principal, and that will be their choice. But until they do identify their clients,
considerations of whether or not the privilege claimed by the ACCRA lawyers
exists cannot even begin to be debated. The ACCRA lawyers cannot excuse
themselves from the consequences of their acts until they have begun to
establish the basis for recognizing the privilege; the existence and identity of
the client.
ISSUE: Whether or not the Sandiganbayan committed grave abuse of
discretion in not holding that, under the facts of this case, the attorney-client
privilege prohibits petitioners ACCRA lawyers from revealing the identity of
their client(s) and the other information requested by the PCGG.
HELD: NO. As a matter of public policy, a clients identity should not be
shrouded in mystery. Under this premise, the general rule in our jurisdiction
as well as in the United States is that a lawyer may not invoke the privilege
and refuse to divulge the name or identity of his client. The reasons
advanced for the general rule are well established. First, the court has a right
to know that the client whose privileged information is sought to be protected
is flesh and blood. Second, the privilege begins to exist only after the
attorney-client relationship has been established. The attorney-client
privilege does not attach until there is a client. Third, the privilege generally

pertains to the subject matter of the relationship. Notwithstanding these

considerations, the general rule is however qualified by some important
exceptions. 1. Client identity is privileged where a strong probability exists
that revealing the clients name would implicate that client in the very activity
for which he sought the lawyers advice. 2. Where disclosure would open the
client to civil liability, his identity is privileged. 3. Where the governments
lawyers have no case against an attorneys client unless, by revealing the
clients name, the said name would furnish the only link that would form the
chain of testimony necessary to convict an individual of a crime, the clients
name is privileged. It is clear then that the case against petitioners should
never be allowed to take its full course in the Sandiganbayan. Petitioners
should not be made to suffer the effects of further litigation when it is obvious
that their inclusion in the complaint arose from a privileged attorney-client
relationship and as a means of coercing them to disclose the identities of
their clients. To allow the case to continue with respect to them when this
Court could nip the problem in the bud at this early opportunity would be to
sanction an unjust situation which we should not here countenance. The
case hangs as a real and palpable threat, a proverbial Sword of Damocles
over petitioners' heads. It should not be allowed to continue a day longer.
PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE
SANDIGANBAYAN, MANSUETO V. HONRADA, CEFERINO S. PAREDES,
JR. and GENEROSO S. SANSAET, respondents.
Doctrine:
1. The same privileged confidentiality, however, does not attach with regard
to a crime which a client intends to commit thereafter or in the future and for
purposes of which he seeks the lawyer's advice.
2. PRIVILEGE MUST BE FOR A LAWFUL PURPOSE
3. ACCUSED MUST NOT APPEAR TO BE THE MOST GUILTY; IN
CONSPIRACY, THE ACTUAL AND INDIVIDUAL PARTICIPATION OF
ACCUSED SERVES AS CRITERIA.
4. GRANT OR DENIAL THEREOF MUST BE BASED NOT SOLELY ON THE
ISSUE OF APPLICABILITY OF ATTORNEY-CLIENT PRIVILEGE
5. FUTURE CRIMES, NOT COVERED
6. PRIVILEGED COMMUNICATION BETWEEN LAWYER AND CLIENT;
NOT CONFINED TO VERBAL OR WRITTEN COMMUNICATION.
Respondent Paredes applied for a free patent over Lot No. 3097-A, Pls-67 of
the Rosario Public Land Subdivision Survey in 1976. His application was
approved and an original certificate of title was issued in his favor. In 1985,
however, the Director of Lands filed an action for the cancellation of Paredes'
patent and certificate of title since the land had been designated as a school
site. The trial court nullified said patent and title after finding that Paredes
had obtained the same through fraudulent misrepresentations in his
application. Sansaet served as counsel of Paredes in that case.
The Tanodbayan recommended the criminal prosecution of Paredes for
violation of Section 3(a) of Republic Act No. 3019 in that he used his former
position as Provincial Attorney to influence the Bureau of Lands officials to
favorably act on his application for free patent. Again, Sansaet was Paredes'
counsel of record therein. A criminal case was subsequently filed with the
Sandiganbayan.
On January 23, 1990, one Teofilo Gelacio, sent a letter to the Ombudsman
seeking the investigation of the three respondents herein for falsification of
public documents, claiming that respondent Honrada, in conspiracy with his
co-respondents, simulated and certified as true copies certain documents
purporting to be a notice of arraignment and transcripts of stenographic
notes supposedly taken during the arraignment of Paredes on the perjury
charge.
To evade responsibility for his own participation in the scheme, Sansaet
claimed that he filed falsified documents upon the inducement of Paredes.
This was intended to pave the way for his discharge as a government
witness in the consolidated cases. The proposal for the discharge of Sansaet
as a state witness was rejected by the Ombudsman, reasoning that the
confession of Sansaet falls under the privileged communication between him
and his client, Paredes, which may be objected to if presented in the trial.
Thus, the three criminal cases were filed in the Sandiganbayan. A motion

was filed by the People on July 27, 1993 for the discharge of Sansaet as a
state witness.
Issues:
(1) whether the projected testimony of Sansaet, as proposed state
witness, is barred by the attorney-client privilege, and
(2) whether he is eligible for discharge as a particeps criminis.
Held: Yes to both.
A distinction must be made between confidential communications relating to
past crimes already committed, and future crimes intended to be committed,
by the client. The Sandiganbayan believes that in the instant case it is
dealing with a past crime, and that Sansaet is set to testify on alleged
criminal acts of respondents Paredes and Honrada that have already been
committed and consummated.
But for the application of the attorney-client privilege, the period to be
considered is the date when the privileged communication was made by the
client to the attorney in relation to either a crime committed in the past or with
respect to a crime intended to be committed in the future. In other words, the
privileged confidentiality applies only to a crime already committed, but does
not attach to a crime which a client intends to commit in the future, for
purposes of which he seeks the lawyer's advice.
The testimony sought to be elicited from Sansaet as state witness are the
communications made to him by Paredes at the time he and Honrada were
about to falsify the documents which were later filed in the Tanodbayan by
Sansaet. Furthermore, Sansaet was himself a conspirator in the commission
of the crime of falsification which he, Paredes and Honrada foisted upon the
authorities. It is well settled that in order that a communication between a
lawyer and his client may be privileged, it must be for a lawful purpose or in
furtherance of a lawful end.
The Court is reasonably convinced that the requisites for the discharge of
Sansaet as a state witness are present and should have been favorably
appreciated by the Sandiganbayan. Sansaet is the only cooperative
eyewitness to the actual commission of the falsification charge, and the
prosecution is faced with the task of establishing the guilt of the two other corespondents who steadfastly deny the charge and stoutly protest their
innocence. There is thus no other direct evidence available for the
prosecution of the case; hence there is absolute necessity for the testimony
of Sansaet.
The Sandiganbayan should have taken a holistic view of all facts and issues
herein in disposing of the matter of whether to allow Sansaet to testify as a
state witness, and not merely on the sole issue of the applicability of the
attorney-client privilege.
ROSA F. MERCADO, complainant, vs. ATTY. JULITO D. VITRIOLO,
respondent.
Doctrine: Confidential information is a crucial link in establishing a breach of
the rule on privileged communication between attorney and client. It is not
enough to merely assert the attorney-client privilege. 37 The burden of
proving that the privilege applies is placed upon the party asserting the
privilege.
1. Complainant's husband filed Civil Case No. 40537 entitled "Ruben G.
Mercado v. Rosa C. Francisco," for annulment of their marriage with the
Regional Trial Court (RTC) of Pasig City. This annulment case had been
dismissed by the trial court, and the dismissal became final and executory on
July 15, 1992.
2. Atty. Anastacio P. de Leon, counsel of complainant, died. Respondent
entered his appearance before the trial court as collaborating counsel for
complainant.
3. Subsequently, respondent filed a criminal action against complainant
before the Office of the City Prosecutor, Pasig City, entitled "Atty. Julito
Vitriolo, et al. v. Rose Dela Cruz F. Mercado," for violation of Articles 171 and
172 (falsification of public document) of the Revised Penal Code.
Respondent alleged that complainant made false entries in the Certificates of

Live Birth of her children, Angelica and Katelyn Anne. More specifically,
complainant allegedly indicated in said Certificates of Live Birth that she is
married to a certain Ferdinand Fernandez, and that their marriage was
solemnized on April 11, 1979, when in truth, she is legally married to Ruben
G. Mercado and their marriage took place on April 11, 1978.
4. This prompted complainant Rosa Mercado to bring this action against
respondent. She claims that, in filing the criminal case for falsification,
respondent is guilty of breaching their privileged and confidential lawyerclient relationship, and should be disbarred.
5. On June 21, 2003, the IBP Board of Governors approved the report of
investigating commissioner Datiles, finding the respondent guilty of violating
the rule on privileged communication between attorney and client, and
recommending his suspension from the practice of law for one (1) year.
Issue: Whether respondent violated the rule on privileged
communication between attorney and client when he filed a criminal
case for falsification of public document against his former client
Held: No, he did not.
Dean Wigmore cites the factors essential to establish the existence of the
privilege, viz:
(1)
Where legal advice of any kind is sought
(2) from a professional legal adviser in his capacity as such,
(3) the communications relating to that purpose,
(4) made in confidence
(5) by the client,
(6) are at his instance permanently protected
(7) from disclosure by himself or by the legal advisor, (8) except the
protection be waived.
Matters disclosed by a prospective client to a lawyer are protected by the
rule on privileged communication even if the prospective client does not
thereafter retain the lawyer or the latter declines the employment. On the
other hand, a communication from a (prospective) client to a lawyer for some
purpose other than on account of the (prospective) attorney-client relation is
not privileged.
The mere relation of attorney and client does not raise a presumption of
confidentiality. The client must intend the communication to be confidential. A
confidential communication refers to information transmitted by voluntary act
of disclosure between attorney and client in confidence and by means which,
so far as the client is aware, discloses the information to no third person
other than one reasonably necessary for the transmission of the information
or the accomplishment of the purpose for which it was given.
The communication made by a client to his attorney must not be intended for
mere information, but for the purpose of seeking legal advice from his
attorney as to his rights or obligations. The communication must have been
transmitted by a client to his attorney for the purpose of seeking legal advice.
If the client seeks an accounting service, or business or personal assistance,
36 and not legal advice, the privilege does not attach to a communication
disclosed for such purpose.
Applying all these rules to the case at bar, we hold that the evidence on
record fails to substantiate complainant's allegations. We note that
complainant did not even specify the alleged communication in confidence
disclosed by respondent. All her claims were couched in general terms and
lacked specificity. She contends that respondent violated the rule on
privileged communication when he instituted a criminal action against her for
falsification of public documents because the criminal complaint disclosed
facts relating to the civil case for annulment then handled by respondent.
She did not, however, spell out these facts which will determine the merit of
her complaint. The Court cannot be involved in a guessing game as to the
existence of facts which the complainant must prove.
Indeed, complainant failed to attend the hearings at the IBP. Without any
testimony from the complainant as to the specific confidential information
allegedly divulged by respondent without her consent, it is difficult, if not
impossible to determine if there was any violation of the rule on privileged

communication. Such confidential information is a crucial link in establishing

a breach of the rule on privileged communication between attorney and
client. It is not enough to merely assert the attorney-client privilege. 37 The
burden of proving that the privilege applies is placed upon the party asserting
the privilege.
NELLY LIM, petitioner, vs. THE COURT OF APPEALS, HON. MANUEL D.
VICTORIO, as Presiding Judge of RTC-Rosales, Pangasinan, Branch 53,
and JUAN SIM, respondents
Doctrine: When, a doctors expert opinion excluded whatever information or
knowledge she had about her client which was acquired by reason of the
physician-patient relationship existing between them, she may be allowed to
testify in the case involving her client. Also, there is authority to the effect that
information elicited during consultation with a physician in the presence of
third parties removes such information from the mantle of the privilege.
1. On 25 November 1987, private respondent filed with Branch 53 of the
Regional Trial Court (RTC) of Pangasinan a petition for annulment of such
marriage on the ground that petitioner has been allegedly suffering from a
mental illness called schizophrenia "before, during and after the marriage
and until the present."
2. Private respondent's counsel announced that he would present as his next
witness the Chief of the Female Services of the National Mental Hospital, Dr.
Lydia Acampado, a Doctor of Medicine who specializes in Psychiatry.
3. Petitioner's counsel opposed the motion on the ground that the testimony
sought to be elicited from the witness is privileged since the latter had
examined the petitioner in a professional capacity and had diagnosed her to
be suffering from schizophrenia. Movant argued that having seen and
examined the petitioner in a professional capacity, Dr. Acampado is barred
from testifying under the rule on the confidentiality of a physician-patient
relationship.
4. Counsel for private respondent contended, however, that Dr. Acampado
would be presented as an expert witness and would not testify on any
information acquired while attending to the petitioner in a professional
capacity.
5. The trial court, per respondent Judge, denied the motion and allowed the
witness to testify.
6. On the witness box, Dr. Acampado answered routinary (sic) questions to
qualify her as an expert in psychiatry; she was asked to render an opinion as
to what kind of illness (sic) are stelazine tablets applied to; she was asked to
render an opinion on a (sic) hypothetical facts respecting certain behaviours
of a person; and finally she admitted she saw and treated Nelly Lim but she
never revealed what illness she examined and treated her (sic); nor (sic) the
result of her examination of Nelly Lim, nor (sic) the medicines she
prescribed.
7. Petitioner filed with the public respondent Court of Appeals a petition 2 for
certiorari and prohibition.
8. The Court of Appeals promulgated a resolution 3 denying due course to
the petition on the ground that "the petitioner failed in establishing the
confidential nature of the testimony given by or obtained from Dr. Acampado
when she testified on January 25, 1989.
Issue: Whether or not Dr Acampado should be barred from testifying as
a witness.
Held: No, she is not.
In order that the privilege may be successfully claimed, the following
requisites must concur:
1. the privilege is claimed in a civil case;
2. the person against whom the privilege is claimed is one duly authorized to
practice medicine, surgery or obstetrics;
3. such person acquired the information while he was attending to the patient
in his professional capacity;
4. the information was necessary to enable him to act in that capacity; and
5. the information was confidential, and, if disclosed, would blacken the
reputation (formerly character) of the patient.

These requisites conform with the four (4) fundamental conditions necessary
for the establishment of a privilege against the disclosure of certain
communications, to wit:
1. The communications must originate in a confidence that they will not be
disclosed.
2. This element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties.
3. The relation must be one which in the opinion of the community ought to
be sedulously fostered
4. The injury that would inure to the relation by the disclosure of the
communications must be greater than the benefit thereby gained for the
correct disposal of litigation
Our careful evaluation of the submitted pleadings leads Us to no other
course of action but to agree with the respondent Court's observation that the
petitioner failed to discharge that burden. In the first place, Dr. Acampado
was presented and qualified as an expert witness. As correctly held by the
Court of Appeals, she did not disclose anything obtained in the course of her
examination, interview and treatment of the petitioner; moreover, the facts
and conditions alleged in the hypothetical problem did not refer to and had
no bearing on whatever information or findings the doctor obtained while
attending to the patient. There is, as well, no showing that Dr. Acampado's
answers to the questions propounded to her relating to the hypothetical
problem were influenced by the information obtained from the petitioner.
Otherwise stated, her expert opinion excluded whatever information or
knowledge she had about the petitioner which was acquired by reason of the
physician-patient relationship existing between them. As an expert witness,
her testimony before the trial court cannot then be excluded.
Secondly, it is quite clear from Dr. Acampado's testimony that the petitioner
was never interviewed alone. Said interviews were always conducted in the
presence of a third party. There is authority to the effect that information
elicited during consultation with a physician in the presence of third parties
removes such information from the mantle of the privilege.
Thirdly, nothing specific or concrete was offered to show that indeed, the
information obtained from Dr. Acampado would blacken the former's
"character" (or "reputation"). Dr. Acampado never disclosed any information
obtained from the petitioner regarding the latter's ailment and the treatment
recommended therefore.
Finally the petitioner makes no claim in any of her pleadings that her counsel
had objected to any question asked of the witness on the ground that it
elicited an answer that would violate the privilege, despite the trial court's
advise that said counsel may interpose his objection to the testimony "once it
becomes apparent that the testimony, sought to be elicited is covered by the
privileged communication rule.
MA. PAZ FERNANDEZ KROHN, petitioner, vs. COURT OF APPEALS and
EDGAR KROHN, JR., respondents
Doctrine: A psychiatric report may be used in court by a person not a party to
the physician- patient relationship against the patient in the case.
1. A confidential psychiatric evaluation report is being presented in evidence
before the trial court in a petition for annulment of marriage grounded on
psychological incapacity. The witness testifying on the report is the husband
who initiated the annulment proceedings, not the physician who prepared the
report.
2. Edgar Krohn, Jr., and Ma. Paz Fernandez were married. Their blessings
notwithstanding, the relationship between the couple developed into a stormy
one. In 1971, Ma. Paz underwent psychological testing purportedly in an
effort to ease the martial strain. In 1973, they finally separated in fact.
3. In 1975, Edgar was able to secure a copy of the confidential psychiatric
report on Ma. Paz prepared and signed by Drs. Cornelio Banaag, Jr., and
Baltazar Reyes. He obtained a decree from the Tribunal Metropolitanum
Matrimoniale in Manila nullifying his church marriage with Ma. Paz on the
ground of "incapacitas assumendi onera conjugalia due to lack of due
discretion existent at the time of the wedding and thereafter."

4. Meanwhile, on 30 July 1982, the then Court of First Instance (now

Regional Trial Court) of Pasig, Br. II, issued an order granting the voluntary
dissolution of the conjugal partnership.
5. On 23 October 1990, Edgar filed a petition for the annulment of his
marriage with Ma. Paz before the trial court.
6. At the hearing on 8 May 1991, Edgar took the witness stand and tried to
testify on the contents of the Confidential Psychiatric Evaluation Report. This
was objected to on the ground that it violated the rule on privileged
communication between physician and patient.
7. She further argues that to allow her husband to testify on the contents of
the psychiatric evaluation report "will set a very bad and dangerous
precedent because it abets circumvention of the rule's intent in preserving
the sanctity, security and confidence to the relation of physician and his
patient.
8. Private respondent Edgar Krohn, Jr., however contends that "the rules are
very explicit: the prohibition applies only to a physician. Thus . . . . the legal
prohibition to testify is not applicable to the case at bar where the person
sought to be barred from testifying on the privileged communication is the
husband and not the physician of the petitioner.
Private respondent submits that privileged communication may be waived by
the person entitled thereto, and this petitioner expressly did when she gave
her unconditional consent to the use of the psychiatric evaluation report.
Private respondent further argues that petitioner also gave her implied
consent when she failed to specifically object to the admissibility of the report
in her Answer where she merely described the evaluation report as "either
unfounded or irrelevant."
9. The trial court issued an Order admitting the Confidential Psychiatric
Evaluation Report in evidence.
10. The appellate court dismissed the petition for certiorari.
Issue: WON, the contents of the psychiatric report can be used as
documentary evidence in court.
Held: Yes, it can.
In the instant case, the person against whom the privilege is claimed is not
one duly authorized to practice medicine, surgery obstetrics. He is simply the
patient's husband who wishes to testify on a document executed by medical
practitioners. Plainly and clearly, this does not fall within the claimed
prohibition. Neither can his testimony be considered a circumvention of the
prohibition because his testimony cannot have the force and effect of the
testimony of the physician who examined the patient and executed the
report.
Counsel for petitioner indulged heavily in objecting to the testimony of private
respondent on the ground that it was privileged. In his Manifestation before
the trial court dated 10 May 1991, he invoked the rule on privileged
communications but never questioned the testimony as hearsay. It was a
fatal mistake. For, in failing to object to the testimony on the ground that it
was hearsay, counsel waived his right to make such objection and,
consequently, the evidence offered may be admitted.
[G.R. No. 169777 * . April 20, 2006.]
SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON,
in his capacity as Senate President, JUAN M. FLAVIER, in his capacity
as SenatePresident Pro Tempore, FRANCIS N. PANGILINAN, in his
capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his
capacity as Minority Leader, SENATORS RODOLFO G. BIAZON,
"COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA,
LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J.
GORDON, PANFILO M. LACSON, ALFREDO S. LIM, M. A. MADRIGAL,
SERGIO OSMEA III, RALPH G. RECTO, and MAR ROXAS vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alterego of President Gloria Macapagal-Arroyo, and anyone acting in his
stead and in behalf of the President of the Philippines
The Committee of the Senate as a whole issued invitations to various
officials of the Executive Department for them to appear on September 29,

2005 as resource speakers in a public hearing on the railway project of the

North Luzon Railways Corporation with the China National Machinery and
Equipment Group (hereinafter North Rail Project). The public hearing was
sparked by a privilege speech of Senator Juan Ponce Enrile urging
the Senate to investigate the alleged overpricing and other unlawful
provisions of the contract covering the North Rail Project.
The Senate Committee on National Defense and Security likewise issued
invitations to the certain officials of the AFP for them to attend as resource
persons in a public hearing scheduled on September 28, 2005 on the
following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., entitled
"Bunye has Provided Smoking Gun or has Opened a Can of Worms that
Show Massive Electoral Fraud in the Presidential Election of May 2005"; (2)
Privilege Speech of Senator Jinggoy E. Estrada entitled "The Philippines as
the Wire-Tapping Capital of the World"; (3) Privilege Speech of Senator
Rodolfo Biazon entitled "Clear and Present Danger"; (4) Senate Resolution
No. 285 filed by Senator Maria Ana Consuelo Madrigal Resolution
Directing the Committee on National Defense and Security to Conduct an
Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the
Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No.
295 filed by Senator Biazon Resolution Directing the Committee on
National Defense and Security to Conduct an Inquiry, in Aid of Legislation, on
the Wire-Tapping of the President of the Philippines.
On September 28, 2005, the President issued E.O. 464, "ENSURING
OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWERS,
ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT
FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE
INQUIRIES IN AID OF LEGISLATION UNDER THE CONSTITUTION, AND
FOR OTHER PURPOSES," . The salient provisions of the Order are as
follows:
SECTION 1. Appearance by Heads of Departments Before Congress. In
accordance with Article VI, Section 22 of the Constitution and to implement
the Constitutional provisions on the separation of powers between co-equal
branches of the government, all heads of departments of the Executive
Branch of the government shall secure the consent of the President
prior to appearing before either House of Congress.
Senate President Drilon received from Executive Secretary Ermita a copy of
E.O. 464, and another letter informing him "that officials of the Executive
Department invited to appear at the meeting [regarding the NorthRail project]
will not be able to attend the same without the consent of the President,
pursuant to [E.O. 464]" and that "said officials have not secured the required
consent from the President."
Despite the communications received from Executive Secretary Ermita and
Gen. Senga, the investigation scheduled by the Committee on National
Defense and Security pushed through, with only Col. Balutan and Brig. Gen.
Gudani among all the AFP officials invited attending.
Three petitions, docketed as G.R. Nos. 169659, 169660, and 169667,
for certiorari and prohibition, were filed before this Court challenging the
constitutionality of E.O. 464.
Petitioner Senate of the Philippines, alleging that it has a vital interest in the
resolution of the issue of the validity of E.O. 464 for it stands to suffer
imminent and material injury, as it has already sustained the same with its
continued enforcement since it directly interferes with and impedes the valid
exercise of theSenate's powers and functions and conceals information of
great public interest and concern, filed its petition for certiorari and
prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be
declared unconstitutional.
In another investigation conducted jointly by the Senate Committee on
Agriculture and Food and the Blue Ribbon Committee on the alleged
mismanagement and use of the fertilizer fund under the Ginintuang
Masaganang Ani program of the Department of Agriculture (DA), several
Cabinet officials were invited to the hearings but most of them failed to
attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary Felix

Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R.

Gicana, and those from the Department of Budget and Management having
invoked E.O. 464.
All the petitions pray for the issuance of a Temporary Restraining Order
enjoining respondents from implementing, enforcing, and observing E.O.
464.
ISSUE: Whether the executive privilege may be invoked by the officials
subject of investigation pursuant to E.O 464
HELD: The petitions are PARTLY GRANTED. Sections 2(b) and 3
of Executive Order No. 464 (series of 2005), "ENSURING OBSERVANCE
OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO
THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE
RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES
IN AID OF LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER
PURPOSES," are declared VOID. Sections 1 and 2(a) are, however, VALID.
Schwartz defines executive privilege as "the power of the Government to
withhold information from the public, the courts, and the
Congress." Similarly, Rozell defines it as "the right of the President and highlevel executive branch officers to withhold information from Congress, the
courts, and ultimately the public."
This privilege, based on the constitutional doctrine of separation of powers,
exempts the executive from disclosure requirements applicable to the
ordinary citizen or organization where such exemption is necessary to the
discharge of highly important executive responsibilities involved in
maintaining governmental operations, and extends not only
to military and diplomatic secrets but also to documents integral to an
appropriate exercise of the executive' domestic decisional and policy making
functions, that is, those documents reflecting the frank expression necessary
in intra-governmental advisory and deliberative communications.
That a type of information is recognized as privileged does not, however,
necessarily mean that it would be considered privileged in all instances. For
in determining the validity of a claim of privilege, the question that must be
asked is not only whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be honored in a
given procedural setting.
Executive privilege, whether asserted against Congress, the courts, or the
public, is recognized only in relation to certain types of information of a
sensitive character. While executive privilege is a constitutional concept,
a claim thereof may be valid or not depending on the ground invoked to
justify it and the context in which it is made. Noticeably absent is any
recognition that executive officials are exempt from the duty to disclose
information by the mere fact of being executive officials. Indeed, the
extraordinary character of the exemptions indicates that the
presumption inclines heavily against executive secrecy and in favor of
disclosure.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to
be present, such invocation must be construed as a declaration to Congress
that the President, or a head of office authorized by the President, has
determined that the requested information is privileged, and that the
President has not reversed such determination. Such declaration, however,
even without mentioning the term "executive privilege," amounts to an
implied claim that the information is being withheld by the executive branch,
by authority of the President, on the basis of executive privilege. Verily, there
is an implied claim of privilege.
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by
the mere fact that it sanctions claims of executive privilege. This Court must
look further and assess the claim of privilege authorized by the Order to
determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case

basis, examining the ground invoked therefor and the particular
circumstances surrounding it, there is, in an implied claim of privilege, a
defect that renders it invalid per se. By its very nature, and as demonstrated
by the letter of respondent Executive Secretary quoted above, the implied
claim authorized by Section 3 of E.O. 464 is not accompanied by any
specific allegation of the basis thereof (e.g., whether the information
demanded involves military or diplomatic secrets, closed-door Cabinet
meetings, etc.). While Section 2(a) enumerates the types of information that
are covered by the privilege under the challenged order, Congress is left to
speculate as to which among them is being referred to by the executive. The
enumeration is not even intended to be comprehensive, but a mere
statement of what is included in the phrase "confidential or classified
information between the President and the public officers covered by this
executive order."
Certainly, Congress has the right to know why the executive considers the
requested information privileged. It does not suffice to merely declare that
the President, or an authorized head of office, has determined that it is so,
and that the President has not overturned that determination. Such
declaration leaves Congress in the dark on how the requested information
could be classified as privileged. That the message is couched in terms that,
on first impression, do not seem like a claim of privilege only makes it more
pernicious. It threatens to make Congress doubly blind to the question of why
the executive branch is not providing it with the information that it has
requested. ETAICc
A claim of privilege, being a claim of exemption from an obligation to disclose
information, must, therefore, be clearly asserted.
Absent then a statement of the specific basis of a claim of executive
privilege, there is no way of determining whether it falls under one of the
traditional privileges, or whether, given the circumstances in which it is made,
it should be respected.
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b)
is thus invalid per se. It is not asserted. It is merely implied. Instead of
providing precise and certain reasons for the claim, it merely invokes E.O.
464, coupled with an announcement that the President has not given her
consent. It is woefully insufficient for Congress to determine whether the
withholding of information is justified under the circumstances of each case.
It severely frustrates the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides
guidelines, binding only on the heads of office mentioned in Section 2(b), on
what is covered by executive privilege. It does not purport to be conclusive
on the other branches of government. It may thus be construed as a mere
expression of opinion by the President regarding the nature and scope of
executive privilege.

conducted by the House Special Committee on Globalization (the House

Committee) into the negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein
respondent Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the
Philippine Coordinating Committee to study and negotiate the proposed
JPEPA, and to furnish the Committee with a copy of the latest draft of the
JPEPA. Usec. Aquino did not heed the request, however.
Congressman Aguja later requested for the same document, but Usec.
Aquino, by letter, replied that the Congressman shall be provided with a copy
thereof "once the negotiations are completed and as soon as a thorough
legal review of the proposed agreement has been conducted."
In a separate move, the House Committee, through Congressman Herminio
G. Teves, requested Executive Secretary Eduardo Ermita to furnish it with
"all documents on the subject including the latest draft of the proposed
agreement, the requests and offers etc." Acting on the request, Secretary
Ermita, by letter, wrote Congressman Teves that the Committee's request
to be furnished all documents on the JPEPA may be difficult to
accomplish at this time, since the proposed Agreement has been a
work in progress for about three years. A copy of the draft JPEPA will
however be forwarded to the Committee as soon as the text thereof is settled
and complete.
In its third hearing conducted, the House Committee resolved to issue a
subpoena for the most recent draft of the JPEPA, but the same was not
pursued because by Committee Chairman Congressman Teves' information,
then House Speaker Jose de Venecia had requested him to hold in
abeyance the issuance of the subpoena until the President gives her consent
to the disclosure of the documents.
Petitioners assert, first, that the refusal of the government to disclose the
documents bearing on the JPEPA negotiations violates their right to
information on matters of public concern and contravenes other constitutional
provisions on transparency, such as that on the policy of full public disclosure
of all transactions involving public interest. Second, they contend that nondisclosure of the same documents undermines their right to effective and
reasonable participation in all levels of social, political, and economic
decision-making.
ISSUE: Whether or not the Executive privilege may be invoked by the
respondents.
HELD: Yes. The petition is DISMISSED.
It is well-established in jurisprudence that neither the right to information nor
the policy of full public disclosure is absolute, there being matters which,
albeit of public concern or public interest, are recognized as privileged in
nature.

It follows, therefore, that when an official is being summoned by Congress on

a matter which, in his own judgment, might be covered by executive
privilege, he must be afforded reasonable time to inform the President or the
Executive Secretary of the possible need for invoking the privilege. This is
necessary in order to provide the President or the Executive Secretary with
fair opportunity to consider whether the matter indeed calls for a claim of
executive privilege. If, after the lapse of that reasonable time, neither the
President nor the Executive Secretary invokes the privilege, Congress is no
longer bound to respect the failure of the official to appear before Congress
and may then opt to avail of the necessary legal means to compel his
appearance.

Whether a claim of executive privilege is valid depends on the ground

invoked to justify it and the context in which it is made. In the present case,
the ground for respondents' claim of privilege is set forth in
their Comment, viz.:
. . . The categories of information that may be considered privileged includes
matters of diplomatic character and under negotiation and review. In this
case, the privileged character of the diplomatic negotiations has been
categorically invoked and clearly explained by respondents particularly
respondent DTI Senior Undersecretary.

AKBAYAN CITIZENS ACTION PARTY ET. AL. vs. THOMAS G. AQUINO

ET. AL.
Petitioners Congressman Lorenzo R. Taada III and Mario Joyo Aguja filed
House Resolution No. 551 calling for an inquiry into the bilateral trade
agreements then being negotiated by the Philippine government, particularly
the JPEPA. The Resolution became the basis of an inquiry subsequently

The documents on the proposed JPEPA as well as the text which is subject
to negotiations and legal review by the parties fall under the exceptions to
the right of access to information on matters of public concern and policy of
public disclosure. They come within the coverage of executive privilege. At
the time when the Committee was requesting for copies of such documents,
the negotiations were ongoing as they are still now and the text of the
proposed JPEPA is still uncertain and subject to change. Considering the
status and nature of such documents then and now, these are evidently

covered by executive privilege consistent with existing legal provisions and

settled jurisprudence.
Practical and strategic considerations likewise counsel against the disclosure
of the "rolling texts" which may undergo radical change or portions of which
may be totally abandoned. Furthermore, the negotiations of the
representatives of the Philippines as well as of Japan must be allowed
to explore alternatives in the course of the negotiations in the same
manner as judicial deliberations and working drafts of opinions are
accorded strict confidentiality.
The ground relied upon by respondents is thus not simply that the
information sought involves a diplomatic matter, but that it pertains
to diplomatic negotiations then in progress.
Applying the principles adopted in PMPF v. Manglapus, it is clear that while
the final text of the JPEPA may not be kept perpetually confidential since
there should be "ample opportunity for discussion before [a treaty] is
approved" the offers exchanged by the parties during the negotiations
continue to be privileged even after the JPEPA is published. It is reasonable
to conclude that the Japanese representatives submitted their offers with the
understanding that "historic confidentiality" would govern the same.
Disclosing these offers could impair the ability of the Philippines to deal not
only with Japan but with other foreign governments in future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to
public scrutiny would discourage future Philippine representatives from
frankly expressing their views during negotiations. While, on first impression,
it appears wise to deter Philippine representatives from entering into
compromises, it bears noting that treaty negotiations, or any negotiation for
that matter, normally involve a process of quid pro quo, and oftentimes
negotiators have to be willing to grant concessions in an area of lesser
importance in order to obtain more favorable terms in an area of greater
national interest. Apropos are the following observations of Benjamin S.
Duval, Jr.:
. . . [T]hose involved in the practice of negotiations appear to be in
agreement that publicity leads to "grandstanding", tends to freeze
negotiating positions, and inhibits the give-and-take essential to
successful negotiation. As Sissela Bok points out, if "negotiators have
more to gain from being approved by their own sides than by making a
reasoned agreement with competitors or adversaries, then they are inclined
to 'play to the gallery . . .'' In fact, the public reaction may leave them little
option. It would be a brave, or foolish, Arab leader who expressed publicly a
willingness for peace with Israel that did not involve the return of the entire
West Bank, or Israeli leader who stated publicly a willingness to remove
Israel's existing settlements from Judea and Samaria in return for peace.
Indeed, by hampering the ability of our representatives to compromise, we
may be jeopardizing higher national goals for the sake of securing less
critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this
jurisdiction, the JPEPA negotiations constituting no exception. It bears
emphasis, however, that such privilege is only presumptive. For as Senate
v. Ermita holds, recognizing a type of information as privileged does not
mean that it will be considered privileged in all instances. Only after a
consideration of the context in which the claim is made may it be determined
if there is a public interest that calls for the disclosure of the desired
information, strong enough to overcome its traditionally privileged status.
To recapitulate, petitioners' demand to be furnished with a copy of the full
text of the JPEPA has become moot and academic, it having been made
accessible to the public since September 11, 2006. As for their demand for
copies of the Philippine and Japanese offers submitted during the JPEPA
negotiations, the same must be denied, respondents' claim of executive
privilege being valid.
Diplomatic negotiations have, since the Court promulgated its Resolution
in PMPF v. Manglapus on September 13, 1988, been recognized as

privileged in this jurisdiction and the reasons proffered by petitioners against

the application of the ruling therein to the present case have not persuaded
the Court. Moreover, petitioners both private citizens and members of the
House of Representatives have failed to present a "sufficient showing of
need" to overcome the claim of privilege in this case.
This Decision shall not be interpreted as departing from the ruling in Senate
v. Ermita that executive privilege should be invoked by the President or
through the Executive Secretary "by order of the President".
IN RE: PETITION FOR CANCELLATION AND CORRECTION OF ENTRIES
IN THE RECORD OF BIRTH, EMMA K. LEE vs. COURT OF APPEALS,
RITA K. LEE, LEONCIO K. LEE, LUCIA K. LEE-ONG, JULIAN K. LEE,
MARTIN K. LEE, ROSA LEE-VANDERLEK, MELODY LEE-CHIN, HENRY
K. LEE, NATIVIDAD LEE-MIGUEL, VICTORIANO K. LEE, and THOMAS K.
LEE, represented by RITA K. LEE, as Attorney-in-Fact
Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh) entered the
Philippines in the 1930s as immigrants from China. They had 11 children, the
Lee-Keh children.
Lee brought from China a young woman named Tiu Chuan (Tiu), supposedly
to serve as housemaid. The respondent Lee-Keh children believe that Tiu left
the Lee-Keh household, moved into another property of Lee nearby, and had
a relation with him.
Shortly after Keh die, the Lee-Keh children learned that Tiu's children with
Lee (collectively, the Lee's other children) claimed that they, too, were
children of Lee and Keh. This prompted the Lee-Keh children to request the
National Bureau of Investigation (NBI) to investigate the matter. After
conducting such an investigation, the NBI concluded in its report: [I]t is very
obvious that the mother of these 8 children is certainly not KEH SHIOK
CHENG, but a much younger woman, most probably TIU CHUAN. The
NBI further found, among others, by the hospital records of the Lee's other
children, Keh's declared age did not coincide with her actual age when she
supposedly gave birth to such other children, numbering eight.
On the basis of this report, the respondent Lee-Keh children filed two
separate petitionsf or the deletion from the certificate of live birth of the
petitioner Emma Lee, one of Lee's other children, the name Keh and replace
the same with the name Tiu to indicate her true mother's name.
Lee-Keh children filed with the RTC an ex parte request for the issuance of a
subpoena ad testificandum to compel Tiu, Emma Lee's presumed mother, to
testify in the case. The RTC granted the motion but Tiu moved to quash the
subpoena, claiming that it was oppressive and violated Section 25, Rule 130
of the Rules of Court, the rule on parental privilege, she being Emma Lee's
stepmother.
RTC quashed the subpoena it issued for being unreasonable and oppressive
considering that Tiu was already very old and that the obvious object of the
subpoena was to badger her into admitting that she was Emma Lee's
mother.
CA rendered a decision, 4 setting aside the RTC
ISSUE: Whether or not the CA erred in ruling that the trial court may compel
Tiu to testify in the correction of entry case that respondent Lee-Keh children
filed for the correction of the certificate of birth of petitioner Emma Lee to
show that she is not Keh's daughter.
HELD: No. Tiu can be compelled to testify against petitioner Emma Lee.
SECTION 25.Parental and filial privilege. No person may be compelled to
testify against his parents, other direct ascendants, children or other direct
descendants.
The above is an adaptation from a similar provision in Article 315 of the Civil
Code that applies only in criminal cases. But those who revised the Rules of

Civil Procedure chose to extend the prohibition to all kinds of actions,

whether civil, criminal, or administrative, filed against parents and other direct
ascendants or descendants.

Whether or n the ot CHEMICAL COMPONENTS OR INGREDIENTS OF

RESPONDENT'S PRODUCTS ARE TRADE SECRETS OR INDUSTRIAL
SECRETS THAT ARE NOT SUBJECT TO COMPULSORY DISCLOSURE.

But here Tiu, who invokes the filial privilege, claims that she is the
stepmother of petitioner Emma Lee. The privilege cannot apply to them
because the rule applies only to "direct" ascendants and descendants, a
family tie connected by a common ancestry. A stepdaughter has no common
ancestry by her stepmother. Article 965 thus provides:

HELD:
SC ruled in favor of the respondent..

Art. 965.The direct line is either descending or ascending. The former unites
the head of the family with those who descend from him. The latter binds a
person with those from whom he descends.
AIR PHILIPPINES CORPORATION vs. PENNSWELL, INC.
Petitioner Air Philippines Corporation is a domestic corporation engaged in
the business of air transportation services. On the other hand, respondent
Pennswell, Inc. was organized to engage in the business of manufacturing
and selling industrial chemicals, solvents, and special lubricants. On various
dates, respondent delivered and sold to petitioner sundry goods in trade.
Under the contracts, petitioner's total outstanding obligation amounted to
P449,864.98. For failure of the petitioner to comply with its obligation under
said contracts, respondent filed a Complaint or a Sum of Money. In its
Answer, petitioner contended that its refusal to pay was not without valid and
justifiable reasons. In particular, petitioner alleged that it was defrauded in
the amount of P592,000.00 by respondent
During the pendency of the trial, petitioner filed a Motion to
Compel respondent to give a detailed list of the ingredients and chemical
components of the following products, to wit: (a) Contact Grease and
Connector Grease; (b) Thixohtropic Grease and Di-Electric Strength
Protective Coating; and (c) Dry Lubricant and Anti-Seize Compound.
RTC rendered an Order directing [herein respondent] Pennswell, Inc. to give
[herein petitioner] Air Philippines Corporation[,] a detailed list of the
ingredients or chemical components of the abovementioned chemical
products:
Respondent sought reconsideration of the foregoing Order, contending that it
cannot be compelled to disclose the chemical components sought because
the matter is confidential. It argued that what petitioner endeavored to inquire
upon constituted a trade secret which respondent cannot be forced to
divulge.
RTC gave credence to respondent's reasoning, and reversed itself.
Court of Appeals ruled that to compel respondent to reveal in detail the list of
ingredients of its lubricants is to disregard respondent's rights over its trade
secrets.
ISSUE:

The chemical composition, formulation, and ingredients of respondent's

special lubricants are trade secrets within the contemplation of the law. In the
creation of its lubricants, respondent expended efforts, skills, research, and
resources. What it had achieved by virtue of its investments may not be
wrested from respondent on the mere pretext that it is necessary for
petitioner's defense against a collection for a sum of money. By and large,
the value of the information to respondent is crystal clear. The ingredients
constitute the very fabric of respondent's production and business. No doubt,
the information is also valuable to respondent's competitors. To compel its
disclosure is to cripple respondent's business, and to place it at an undue
disadvantage. If the chemical composition of respondent's lubricants are
opened to public scrutiny, it will stand to lose the backbone on which its
business is founded. This would result in nothing less than the probable
demise of respondent's business. Respondent's proprietary interest over the
ingredients which it had developed and expended money and effort on is
incontrovertible. Our conclusion is that the detailed ingredients sought to be
revealed have a commercial value to respondent. Not only do we
acknowledge the fact that the information grants it a competitive advantage;
we also find that there is clearly a glaring intent on the part of respondent to
keep the information confidential and not available to the prying public.
Section 24 of Rule 130 draws the types of disqualification by reason of
privileged communication, to wit: (a) communication between husband and
wife; (b) communication between attorney and client; (c) communication
between physician and patient; (d) communication between priest and
penitent; and (e) public officers and public interest. There are, however,
other privileged matters that are not mentioned by Rule 130. Among
them are the following: (a) editors may not be compelled to disclose the
source of published news; (b) voters may not be compelled to disclose for
whom they voted; (c) trade secrets; (d) information contained in tax census
returns; and (d) bank deposits.
We, thus, rule against the petitioner. We affirm the ruling of the Court of
Appeals which upheld the finding of the RTC that there is substantial basis
for respondent to seek protection of the law for its proprietary rights over the
detailed chemical composition of its products.
Trade secrets should receive greater protection from discovery,
because they derive economic value from being generally unknown and
not readily ascertainable by the public.To the mind of this Court, petitioner
was not able to show a compelling reason for us to lift the veil of
confidentiality which shields respondent's trade secrets.