EVIDENCE | 4TH Batch | ATTY.
TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
AFP v. REPUBLIC
FACTS:
Petitioner was created under P.D. No. 361, as amended and was
designed to establish a separate fund to guarantee continuous
financial support to the AFP military retirement system as provided
for in R.A. No. 340.
Petitioner filed an Application for Registration of Title over 3 parcels
of land located in West Bicutan, Taguig City. These parcels of land
constitute a land grant by virtue of Presidential Proclamation No.
1218 by President Ramos. Ms. Alma Aban, Vice President and Head of
its Asset Enhancement Office of AFPRSBS was presented as a witness.
The trial court then confirms and orders the registration of AFPRSBS’
title. In response, the OSG filed a MR wherein it argued that
petitioner failed to prove that it has personality to own property in its
name and the petitioner failed to show that the witness it presented
was duly authorized to appear for and in its behalf. The trial court
subsequently reversed its own decision, dismissing the Application for
Registration of Title for failure to prosecute.
ISSUES:
1. Whether the court a quo acted contrary to law and
jurisprudence when it dismissed petitioner’s application for
land registration on the ground that petitioner failed to
prosecute the subject case.
2. Whether Ms. Aban lacked authority to be the witness of
petitioner.
HELD:
1. YES. It ruled that it failed to prosecute the case on the ground
that Ms. Aban lacked authority to testify on behalf of the
petitioner. But under Sec. 3, Rule 17 of Rules of Civil
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Procedure, there are only 3 instances wherein the court may
dismiss a case for failure to prosecute: 1) if the plaintiff fails to
appear at the time of trial; 2) if he fails to prosecute the action
for an unreasonable length of time; or 3) if he fails to comply
with the Rules of Court or any order of the court.
Clearly, the basis for pronouncing that petitioner failed
to prosecute its case is not among those grounder provided by
the Rules. Thus, it had no reason to conclude that the
petitioner failed to prosecute its case.
2. NO. There is no substantive or procedural rule which requires
a witness for a party to present some form of authorization to
testify as a witness for the party presenting him or her. There
is no law or jurisprudence that would support the conclusion
that such omission can be considered as a failure to prosecute
on the part of the party presenting such witness. All that the
Rules require of a witness is that the witness possesses all the
qualification and none of the disqualifications provided under
Rule 130 of Rules on Evidence.
Thus, Ms. Aban is qualified to testify as a witness for the
petitioner since she possesses the qualifications of being able
to perceive and being able to make here perceptions known
to others. Furthermore, she also possesses none of the
disqualifications.
ALVAREZ v. RAMIREZ
FACTS:
On trial for arson against her husband, Esperanza Alvarez testified.
She averred that she saw his husband, Maximo Alvarez pouring
gasoline into her sister’s house, Susan Ramirez, while she was staying
there. Maximo’s counsel filed a motion to disqualify Esperanza from
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
testifying against him pursuant to Rule 130 of the Revised Rules of
Court on marital disqualification.
ISSUE:
Whether Esperanza Alvarez is disqualified as a witness under the
marital disqualification?
HELD:
NO. Under Section 22, Rule 130 of the Revised Rules of Court
provides:
"Sec. 22. Disqualification by reason of marriage. – During their
marriage, neither the husband nor the wife may testify for or against
the other without the consent of the affected spouse, except in a civil
case by one against the other, or in a criminal case for a crime
committed by one against the other or the latter’s direct descendants
or ascendants."
The reasons given for the rule are:
1. There is identity of interests between husband and wife;
2. If one were to testify for or against the other, there is
consequent danger of perjury;
3. The policy of the law is to guard the security and
confidences of private life, even at the risk of an occasional
failure of justice, and to prevent domestic disunion and
unhappiness; and
4. Where there is want of domestic tranquility there is danger
of punishing one spouse through the hostile testimony of the
other.
But like all other general rules, the marital disqualification rule has its
own exceptions, both in civil actions between the spouses and in
criminal cases for offenses committed by one against the other. Like
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the rule itself, the exceptions are backed by sound reasons which, in
the excepted cases, outweigh those in support of the general rule. For
instance, where the marital and domestic relations are so strained
that there is no more harmony to be preserved nor peace and
tranquility which may be disturbed, the reason based upon such
harmony and tranquility fails. In such a case, identity of interests
disappears and the consequent danger of perjury based on that
identity is non-existent. Likewise, in such a situation, the security and
confidences of private life, which the law aims at protecting, will be
nothing but ideals, which through their absence, merely leave a void
in the unhappy home.
In this case, the offense of arson attributed to petitioner, directly
impairs the conjugal relation between him and his wife Esperanza. His
act, as embodied in the Information for arson filed against him,
eradicates all the major aspects of marital life such as trust,
confidence, respect and love by which virtues the conjugal
relationship survives and flourishes.
It should be stressed that as shown by the records, prior to the
commission of the offense, the relationship between petitioner and
his wife was already strained. In fact, they were separated de
facto almost six months before the incident. Indeed, the evidence and
facts presented reveal that the preservation of the marriage between
petitioner and Esperanza is no longer an interest the State aims to
protect.
Hence, Esperanza is qualified as a witness.
PEOPLE v. CARLOS
A letter received by the husband from the wife is considered to be
privileged communication only if it was given to a third party
voluntarily. In this case, however, the letter in question is hearsay
because the wife was not called to the witness stand and if the wife
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
were called to the stand, the letter could only be used to dispute her
testimony.
FACTS:
The deceased in this case was Dr. Sityar, who was the medical
practitioner who performed a surgery on the wife of the defendant’s
wife for appendicitis and consequently treated her wounds from said
operation a number of times. Defendant always accompanied his wife
when she visited Dr. Sityar for treatment, however on one occasion
he was sent out by Dr. Sityar to buy medicine. While he was out of
the office, Dr. Sityar did something to outrage his wife. However,
defendant still returned to Dr. Sityar, this time by himself, to ask for
consultation regarding some lung trouble.
Defendant was hospitalized for stomach trouble in the Philippine
General Hospital from May 12 – 18, 1924, when he received a letter
from Dr. Sityar demanding immediate settlement of the account for
professional services rendered to his wife.
Defendant, believing he did not owe Dr. Sityar anything, attempted to
set several meetings with him at Sityar’s office to no avail. Finally, on
May 26, 1924, defendant was able to find Dr. Sityar alone in his office.
This is when defendant stabbed him twice in the front with a fan
knife, and a third time from the back when Sityar attempted to
escape.
Defendant made his escape but then surrendered himself voluntarily
to the authorities the following evening. He admitted to the killing
but claimed that he did it in self defense. He claimed that he
confronted Dr. Sityar regarding the account of his wife which he
thought to be payed and that Sityar insulted him, this led defendant
to challenge the doctor, asking for them to settle things outside the
office. The doctor proceeded to attack defendant with a pocket knife,
forcing him to defend himself. With defendants knowledge of fencing
he was able to disarm the doctor and stab him twice in the front,
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when the doctor was running out the door, defendant stabbed him
again for fear that he might procure another weapon or ask aid from
someone else in assaulting him. All of this, defendant claims, was
done while defendant was in a fit of rage as well as fearing for his life.
The RTC and CA found defendant guilty of Murder and sentenced him
to life imprisonment. The judges did not believe defendant acted in
self-defense for the wounds were too many to constitute mere self-
defense.
The finding of murder was due to a letter addressed to the defendant
from his wife, stating the wife’s fear that he may result to violence
when confronting the doctor. This letter was taken from the
defendant’s person upon his voluntary surrender. Without said letter,
the defendant would only be guilty of homicide which has a much
lower penalty.
ISSUE:
Whether the letter by the wife is admissible in evidence against the
husband following the rule on privileged communication?
HELD:
The letter is inadmissible, not for being privileged communication,
but because it is hearsay.
Although a Justice from the US would say that for the rule on
privileged communication to make the letter inadmissible it must
have been given voluntarily by the wife to the authorities, and so in
this case it would not apply because the letter was taken against the
will of the husband and wife, this does not matter in this case.
The letter, not having been sponsored by any witness who had
personal knowledge of the claims of the wife as stated in it, can only
be reduced to hearsay and nothing more. The wife could not have
testified against her husband, but if she had testified in his favor,
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
contrary to what the letter stated, the letter could have been used to
refute her testimony. The wife was not called to the stand at all and
so the letter is nothing more than hearsay.
Defendant is only guilty of homicide, there being no evidence to
prove the requisite of premeditation for the crime.
UY CHICO v. UNION LIFE
FACTS:
Chico seeks to recover the face value of two insurance policies upon a
stock of dry goods destroyed by fire. Chico’s father was conducting a
business under his own name Uy Layco, when he died. Chico and his
brother took over the business and continued it under the same
name. Chico purchased his brother’s interest in the business. At the
time of the fire, the business was heavily indebted and subsequent
thereto the creditors petitioned for the appointment of an
administrator of the estate of Chico’s father. During the course of
these proceedings, Chico’s attorney surrendered the policies of
insurance to the administrator of the estate of Chico’s father, who
compromised with the insurance company for 1/2 their face value or
6k. This amount is now being held by the sheriff.
Chico brings the suit to recover the policies and goods insured arguing
those belong to him and not to the estate of his deceased father. The
defendant insurance company sought to show that Chico had agreed
to the compromise settlement of the policies and for that purpose
introduced evidence showing that Chico’s attorney had surrendered
the policies with the understanding that such compromise was to be
effected. Chico was asked if he had any objection to which he replied
in the negative. Later, Chico’s counsel formally withdrew the waiver
previously given by Chico himself and objected to the testimony of
the attorney on the proposition that a waiver of the client’s privilege
may be withdrawn at any time before acted upon.
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ISSUE:
Was the communication privileged?
HELD:
NO. It will be noted that the evidence in question concerned the
dealings of the plaintiff's attorney with a third person. Of the very
essence of the veil of secrecy which surrounds communications made
between attorney and client, is that such communications are not
intended for the information of third persons or to be acted upon by
them, but for the purpose of advising the client as to his rights. It is
evident that a communication made by a client to his attorney for
the express purpose of its being communicated to a third person is
essentially inconsistent with the confidential relation.
When the attorney has faithfully carried out his instructions by
delivering the communication to the third person for whom it was
intended and the latter acts upon it, it cannot, by any reasoning
whatever, be classified in a legal sense as a privileged communication
between the attorney and his client. It is plain that such a
communication, after reaching the party for whom it was intended at
least, is a communication between the client and a third person, and
that the attorney simply occupies the role of intermediary or agent.
It is manifest that the objection to the testimony of the Chico’s
attorney as to his authority to compromise was properly overruled.
The testimony was to the effect that when the attorney delivered the
policies to the administrator, he understood that there was a
compromise to be effected, and that when he informed Chico of the
surrender of the policies for that purpose Chico made no objection
whatever. The evidence is sufficient to show that the Chico
acquiesced in the compromise settlement of the policies. Having
agreed to the compromise, he cannot now disavow it and maintain an
action for the recovery of their face value. For the foregoing reasons
the judgment appealed from is affirmed, with costs.
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
REGALA v. SANDIGANBAYAN
Petitioners and private respondent, Roco, were then partners of
ACCRA Law Firm. ACCRA performed legal services for its clients which
included the organization and acquisition of business associations or
organizations, with the incidental services where its members acted
as incorporators or stockholders. As members of ACCRA, petitioners
and Roco admit that they assisted in the organization and acquisition
of the companies included in Civil Case No. 33 before the
Sandiganbayan against Eduardo M. Cojuangco Jr. as one of the
principal defendants, including petitioners and Roco as the other
defendants, for the recovery of ill-gotten wealth. In keeping with
office practice, ACCRA lawyers acted as nominees-stockholders of the
corporations involved in sequestration proceedings.
The complaint in Civil Case No. 33 alleged that the defendants,
including herein petitioners and Eduardo Cojuangco, Jr. conspired
with each other in setting up through the use of coconut levy funds
the financial and corporate framework and structures that led to the
establishment of UCPB, UNICOM and others and that through
insidious means and machinations, ACCRA, using its wholly-owned
investment arm, ACCRA Investments Corporation, became the holder
of approximately fifteen million shares representing roughly 3.3% of
the total capital stock of UCPB as of 31 March 1987. The PCGG
wanted to establish through the ACCRA lawyers that Mr. Cojuangco is
their client and it was Cojuangco who furnished all the monies to the
subscription payment; hence, petitioners acted as dummies,
nominees and/or agents by allowing themselves, among others, to be
used as instrument in accumulating ill-gotten wealth through
government concessions, etc., which acts constitute gross abuse of
official position and authority, flagrant breach of public trust, unjust
enrichment, violation of the Constitution and laws of the Republic of
the Philippines.
5
On August 1991, PCGG filed an Amended Complaint which
excluded private respondent Raul S. Roco from the complaint in PCGG
Case No. 33 as party-defendant. PCGG based its exclusion of Roco as
party-defendant on his undertaking that he will reveal the identity of
the principal/s for whom he acted as nominee/stockholder in the
companies involved in PCGG Case No. 33.
The other ACCRA lawyers in their Answer alleged that their
participation in the acts with which their co-defendant (Roco) are
charged, was in furtherance of legitimate lawyering and that PCGG
should similarly grant the same treatment to them (exclusion as
parties-defendants) as accorded to Roco.
PCGG set the following conditions precedent for the exclusion of
petitioners, namely: (a) the disclosure of the identity of its clients; (b)
submission of documents substantiating the lawyer-client
relationship; and (c) the submission of the deeds of assignments
petitioners executed in favor of its clients covering their respective
shareholdings
Consequently, PCGG presented supposed proof to substantiate
compliance by Roco of the conditions precedent to warrant his
exclusion as party-defendant to wit: (a) Letter to PCGG of the counsel
of Roco reiterating a previous request for reinvestigation by the
PCGG; (b) Affidavit as Attachment to the letter; and (c) Letter of the
Roco, Bunag, and Kapunan Law Offices to PCGG in behalf of Roco
originally requesting the reinvestigation of the evidence of the PCGG
against Roco. It is noteworthy that during the proceedings, Roco did
not refute petitioners’ contention that he did not actually reveal the
identity of the client involved in PCGG Case No. 33, nor had he
undertaken to reveal the identity of the client for whom he acted as
nominee-stockholder.
Sandiganbayan: denied the exclusion of petitioners in PCGG Case No.
33, for their refusal to comply with the conditions required by PCGG.
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
FIRST ISSUE:
WON the ‘confidentiality’ duty of a lawyer in a lawyer-client
relationship may be invoked in refusing to disclose the name of
petitioners’ clients
HELD:
YES. Passed on into various provisions of the Rules of Court, the
attorney-client privilege, as currently worded provides:
“Sec. 24. Disqualification by reason of privileged
communication. - The following persons cannot testify as to
matters learned in confidence in the following cases:
x x x An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to him,
or his advice given thereon in the course of, or with a view to,
professional employment, can an attorneys secretary,
stenographer, or clerk be examined, without the consent of
the client and his employer, concerning any fact the
knowledge of which has been acquired in such capacity.”
Further, Rule 138 of the Rules of Court states:
“Sec. 20. It is the duty of an attorney:
(e) to maintain inviolate the confidence, and at every peril to
himself, to preserve the secrets of his client, and to accept no
compensation in connection with his clients business except
from him or with his knowledge and approval.”
As a general rule in our jurisdiction, a lawyer may not invoke the
privilege and refuse to divulge the name or identity of his client. The
reasons are as follows: 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
6
privilege does not attach until there is a client. Third, the privilege
generally pertains to the subject matter of the relationship. Finally,
due process considerations require that the opposing party should, as
a general rule, know his adversary. A party suing or sued is entitled to
know who his opponent is. He cannot be obliged to grope in the dark
against unknown forces.
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.
4) Where the nature of the attorney-client
relationship has been previously disclosed and it is
the identity which is intended to be confidential, the
identity of the client has been held to be privileged, since
such revelation would otherwise result in disclosure of
the entire transaction
The facts of the instant case bring it within the exception to the
general rule. First, disclosure of the alleged client's name would lead
to establish said client's connection with the very fact in issue of the
case, which is privileged information.
The link between the alleged criminal offense and the legal advice or
legal service sought was duly established in the case at bar, by PCGG
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
itself. The key lies in the three specific conditions laid down by the
PCGG which constitutes petitioners ticket to non-prosecution should
they accede: the disclosure of the identity of its clients; submission of
documents substantiating the lawyer-client relationship; and the
submission of the deeds of assignment petitioners executed in favor
of their clients covering their respective shareholdings. From these
conditions, particularly the third, it can be readily deduced that the
clients consulted the petitioners, in their capacity as lawyers,
regarding the financial and corporate structure, framework and set-
up of the corporations in question. In turn, petitioners gave their
professional advice in the form of, among others, the deeds of
assignment covering their clients shareholdings. There is no question
that the preparation of the documents was part of petitioners legal
service to their clients. More important, it constituted an integral part
of their duties as lawyers. Petitioners, therefore, have a legitimate
fear that identifying their clients would implicate them in the very
activity for which legal advice had been sought, i.e., the alleged
accumulation of ill-gotten wealth in the corporations.
Furthermore, under the third main exception, revelation of the
client's name would obviously provide the necessary link for the
prosecution to build its case, where none otherwise exists.
There are alternative sources of information available to the
prosecutor which do not depend on utilizing a defendant's counsel as
a convenient and readily available source of information in the
building of a case against the latter. Compelling disclosure of the
client's name in circumstances such as the one which exists in the
case at bench amounts to sanctioning fishing expeditions by lazy
prosecutors and litigants. When the nature of the transaction would
be revealed by disclosure of an attorney's retainer, such retainer is
obviously protected by the privilege. It follows that petitioner
attorneys in the instant case owe their client(s) a duty and an
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obligation not to disclose the latter's identity which in turn requires
them to invoke the privilege.
SECOND ISSUE: WON the Sandiganbayan committed grave abuse of
discretion in not considering petitioners as similarly situated and thus,
deserving of equal treatment
HELD:
NO, respondents failed to show - and absolutely nothing exists in the
records of the case at bar - that private respondent actually revealed
the identity of his client(s) to the PCGG. Since the undertaking
happens to be the leitmotif of the entire arrangement between Mr.
Roco and the PCGG, an undertaking which is so material as to have
justified PCGG's special treatment exempting the private respondent
from prosecution, respondent Sandiganbayan should have required
proof of the undertaking more substantial than a "bare assertion"
that private respondent did indeed comply with the
undertaking. Instead, as manifested by the PCGG, only three
documents were submitted for the purpose, two of which were mere
requests for re-investigation and one simply disclosed certain clients
which petitioners (ACCRA lawyers) were themselves willing to
reveal. These were clients to whom both petitioners and private
respondent rendered legal services while all of them were partners at
ACCRA, and were not the clients which the PCGG wanted disclosed
for the alleged questioned transactions.
To justify the dropping of Roco from the case or the filing of the suit
without him, PCGG should conclusively show that Roco was treated
as a species apart from the rest of the ACCRA lawyers on the basis of
a classification which made substantial distinctions based on real
differences. No substantial distinctions exist from the records of the
case at bench, in violation of the equal protection clause.
The condition precedent required by the respondent PCGG of the
petitioners for their exclusion as parties-defendants in PCGG Case No.
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
33 violates the lawyer-client confidentiality privilege. The condition
also constitutes a transgression by respondents Sandiganbayan and
PCGG of the equal protection clause of the Constitution. Moreover,
the PCGGs demand not only touches upon the question of the
identity of their clients but also on documents related to the
suspected transactions, not only in violation of the attorney-client
privilege but also of the constitutional right against self-incrimination.
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.
Respondent Sandiganbayan is ordered to exclude petitioners Teodoro
D. Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C.
Concepcion, *Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta
and Paraja G. Hayuduni as parties-defendants in SB Civil Case No.
0033 entitled "Republic of the Philippines v. Eduardo Cojuangco, Jr., et
al."
BARTON v. LEYTE ASPHALT and MINERAL OIL CO.
FACTS:
James Barton is a US citizen residing in Manila while Leyte Asphalt is a
Philippine Company which has an office in Cebu. Barton sought to
recover the sum of $318,563.30 in damages from Leyte Asphalt for
breach of contract along with a judicial pronouncement that he was
entitled to an extension of terms of the sales agencies specified in the
Contract (Exhibit A). Leyte Asphalt appears to be the owner of the
Lucio Mine in Leyte, a valuable deposit of bituminous limestone and
other asphalt products.
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William Andersen, the general manager of Leyte Asphalt, wrote a
letter to Barton authorizing him to sell the products of the Lucio Mine
in Australia and New Zealand upon a scale of prices indicated therein.
Exhibit A, where Barton relies on, exhibits as follows:
-Barton is given the sole and exclusive sales agency for the
limestones and asphalt products of the Leyte Asphalt in
Australia, Saigon, Java, New Zealand, India, China, Sumatra,
Tasmania, Siam, the Straight Settlements, USA and Hong Kong
until May 1, 1921.
-No orders for less than one thousand tons (1000 tons) will be
accepted except under special agreement with Leyte Asphalt.
Prices are also indicated per ton.
-If “the sales in the above territory equal or exceed 10,000
tons in the year ending in October 1, 1921, then in that event
the prices of all shipments made during the above period shall
be ten pesos (P10) per ton, and any sum charged to any of
your customers or buyers in the aforesaid territory in excess
of 10 pesos per ton shall be rebated to Barton.
-Baron also had the full authority to the Lucio mine products
for any sum he saw fit in excess of the prices quoted above
and such excess in price was to be his extra and additional
profit and commission.
-All ships, steamers, boats, or other carriers are to be loaded
promptly with not less than 1,000 tons each 24 hours after
March 1, 1921, unless there was to be prior notice. It was also
stipulated that Leyte Asphalt shall not be required to ship
orders of 5,000 tons except on 30 days notice and 10,000 tons
except on 60 days notice.
Baron entered in a subagency agreement in San Francisco and
Australia. In San Francisco, he entered an agreement with Ludvigsen
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
and McCurdy. The latter was instituted as a subagent and given the
sole selling rights for the products of Leyte Asphalt for a year. Also, in
Australia, Baron instituted Smith as his sales agent.
Ludvigsen asked Baron for an order of 6,000 tons of bituminous
limestone which the latter accepted. Anderson, on the other hand,
informed Baron that Leyte Asphalt was behind construction so it
could not handle big contracts as of the moment. They met in Manila
and Baron told Anderson about the San Francsico order. Anderson
told Baron to better hold up in taking large orders as there are no
adequate facilities due to lack of capital. Despite this, Baron still
wrote a notification letter to Leyte Asphalt and asked them to
prepare 5,000 bituminous limestone to be shipped to San Francisco.
He also made additional orders for Smith in Australia. Leyte Asphalt
acknowledged these orders but stated that no order would be
entertained without a cash deposit.
CFI absolved Leyte Asphalt from 4 of the 6 causes of action and
allowed Barton to recover with the remaining 2. Among the evidence
presented was a carbon copy of a letter written by Atty. Ingersoll,
Baron’s lawyer. The latter wrote that his profit from the San Francisco
contract would have been at the rate of 85 cents per ton. When the
latter was offered in evidence by Baron, the counsel of plaintiff
announced that he had no objection to the introduction if counsel of
defendant would explain where it came from. Defendant’s lawyer
told the court that he received it from defendant’s former lawyers
without explanation as to the manner of acquisition. But it was
objected by the former.
The trial court excluded the letter.
ISSUE:
Whether the letter should be excluded
HELD:
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NO.
Ratio: When papers are offered in evidence a court will take no
notice of how they were obtained, whether legally or illegally,
properly or improperly; nor will it form a collateral issue to try that
question.
Reasoning: Even supposing that the letter was within the privilege
which protects communications between attorney and client, this
privilege was lost when the letter came to the hands of the adverse
and it makes no difference how the defense acquired possession.
The law protects the client from the effect of disclosures made by him
to his attorney in the confidence of the legal relation, but when such
a document, containing admissions of the client, comes to the hand
of a third party, and reaches the adversary, it is admissible in
evidence.
According to Wigmore: “Since the means of preserving secrecy of
communication are entirely in the client's hands, and since the
privilege is a derogation from the general testimonial duty and should
be strictly construed, it would be improper to extend its prohibition
to third persons who obtain knowledge of the communications. One
who overhears the communication, whether with or without the
client's knowledge, is not within the protection of the privilege. The
same rule ought to apply to one who surreptitiously reads or obtains
possession of a document in original or copy.”
ORIENT INSURANCE v. REVILLA
FACTS:
This is an original petition for writ of certiorari and mandamus filed by
Orient Insurance against Judge Revilla and the Teal Motor. The object
of which is to obtain an order requiring the judge to permit the
attorney of Orient Insurance to examine a letter (Exhibits 49 and 49-
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
A), part of which has been read into the record in the course of the
examination.
Teal Motor is plaintiff in a civil action instituted in the CFI Manila for
the purpose of recovering upon 2 fire insurance policies issued by the
Orient Insurance, aggregating P60,000, upon a stock of merchandise
which was destroyed by a fire. In one of the clauses of the policies
sued upon is a stipulation to the effect that all benefit under the
policy would be forfeited if, in case of loss, the claim should be
rejected by the insurer and action or suit should not be commenced
within 3 months after such rejection.
According to Orient Insurance, the company rejected the claim on
April 15, 1929; that notice of such rejection was given to Teal Motor
by letter on the same day; and that suit was not instituted on the
policy until August 3, 1929, which was more than 3 months after the
rejection of the claim.
Teal Motor admitted that the adjusters of the company had, on April
15, 1929, notified it that the company would not pay the claim,
basing refusal upon alleged incendiarism and fraud on the part of Teal
Motor; and by way of avoidance, it was alleged that after notification
of denial of liability, one E.E. Elser, as representative of Orient
Insurance, expressly requested it to defer judicial action until after
the following July 31, stating that there were great possibilities that
an extrajudicial compromise might be arranged in the matter. Relying
upon this request, Teal Motor deferred from instituting an action.
While the case No. 35825 was in the course of the trial, the witness
E.M. Bachrach, president of the Teal Motor, while being examined in
chief by the attorneys of Teal Motor, reported on that he received a
letter from their attorneys urging him to file the cases.
The attorney of Orient Insurance asked the witness to produce the
letter or else his answer be stricken out. The witness replied that he
had the letter with him but only a part of which could be presented
10
because the other part contained a private matter between the
attorney and themselves.
Orient Insurance’s attorney insisted that the entire document should
be exhibited, in conformity with the rule that when part of a
document is offered in evidence, the entire document must be
presented.
However, the respondent judge ruled that only a part of the letter
could be examined.
ISSUE:
Whether the attorney of Orient Insurance is entitled to examine the
whole document.
HELD:
YES. The attorney of Orient Insurance is entitled to examine the
whole of the letter, with a view to the introduction in evidence of
such parts thereof as may be relevant to the case on trial, and the
judge was in error in refusing to permit the inspection of the letter by
said attorney.
When part of a writing is introduced in evidence by one litigant, his
adversary is entitled to use other parts of the same writing, so far as
relevant to the issues in the case; and to this end, the attorney of
Orient Insurance has a right to inspect the writing and to require its
production in court. This is in accordance with Section 283 of the
Code of Civil Procedure.
PEOPLE v. SANDIGANBAYAN
FACTS:
Respondent Honrada was the Clerk of Court and Acting Stenographer
of the First Municipal Circuit Trial Court, San Francisco-Bunawan-
Rosario in Agusan del Sur. Respondent Paredes was successively the
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
Provincial Attorney of Agusan del Sur, then Governor of the same
province, and is at present a Congressman. Respondent Sansaet was a
practicing attorney who served as counsel for Paredes in several
instances pertinent to the criminal charges involved in the present
recourse.
Paredes applied for a free patent over Lot No. 3097-A, Pls-67 which
was approved and was granted an original certificate of title in his
favor. The subject lot was situated in the poblacionof San Francisco,
Agusan del Sur.
However the Director of Lands filed an action[2] for the cancellation
of respondent Paredes patent and certificate of title since the land
had been designated and reserved as a school site. The trial court
rendered judgment[3] nullifying said patent and title after finding that
respondent Paredes had obtained the same through fraudulent
misrepresentations in his application. Sansaet served as counsel of
Paredes in that civil case
Consequent to the foregoing judgment of the trial court, upon the
subsequent complaint of the Sangguniang Bayan, an information for
perjury was filed against respondent Paredes in the Municipal Circuit
Trial Court. However, the Provincial Fiscal was directed by the Deputy
Minister of Justice to move for the dismissal of the case on the
ground inter alia of prescription, hence the proceedings were
terminated. In this criminal case, respondent Paredes was likewise
represented by respondent Sansaet as counsel.
After that, the Tanodbayan recommended the filing of a criminal case
against Paredes for violation of the provisions of the anti-graph and
corrupt practices act, a special law. It was alleged that by using his
former position as Provincial Attorney to influence and induce the
Bureau of Lands officials to favorably act on his application for free
patent, he had violated Section 3(a) of Republic Act No. 3019, as
11
amended. Respondent Sansaet was Paredes counsel of record
therein.
By way of defense, Paredes contended that the second complaint
filed in court arose from the same set of facts and same evidence of
the earlier perjury case which, after its arraignment, was ordered
dismissed by the court upon recommendation of the Department of
Justice. They alleged that double jeopardy has already attached. To
support such defense the accused presented court records and
transcripts as proof that he was arraigned in the perjury case.
Teofilo Gelacio, a taxpayer who had initiated the perjury and graft
charges against respondent Paredes, sent a letter to the Ombudsman
seeking the investigation of the three respondents herein for
falsification of public documents. He claimed that respondent
Honrada, in conspiracy with his herein 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.
In support of his claim, Gelacio attached to his letter a certification
that no notice of arraignment was ever received by the Office of the
Provincial Fiscal of Agusan del Sur in connection with that perjury
case; and a certification of Presiding Judge Ciriaco Ario that said
perjury case in his court did not reach the arraignment stage since
action thereon was suspended pending the review of the case by the
Department of Justice.[14]
In a so-called Affidavit of Explanations and
Rectifications,[15] respondent Sansaet revealed that Paredes
contrived to have the graft case under preliminary investigation
dismissed on the ground of double jeopardy by making it that the
perjury case had been dismissed by the trial court after he had been
arraigned therein.He further revealed that the documents were
prepared and falsified by his co-respondents in this case in the house
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
of respondent Paredes. To evade responsibility for his own
participation in the scheme, he claimed that he did so upon the
instigation and inducement of respondent Paredes.
The proposal for the discharge of respondent Sansaet as a state
witness was rejected by the Ombudsman since it was difficult to
believe that a lawyer of his stature, in the absence of deliberate
intent to conspire, would be unwittingly induced by another to
commit a crime. As counsel for the accused in those criminal cases,
Atty. Sansaet had control over the case theory and the evidence
which the defense was going to present.
Sandiganbayan ruled that due to the lawyer-client relationship which
existed between herein respondents Paredes and Sansaet during the
relevant periods, the facts surrounding the case and other
confidential matters must have been disclosed by respondent
Paredes, as client, to respondent Sansaet, as his lawyer.Accordingly, it
found no reason to discuss it further since Atty. Sansaet cannot be
presented as a witness against accused Ceferino S. Paredes, Jr.
without the latters consent.
ISSUE:
Whether the projected testimony of respondent Sansaet, as proposed
state witness, is barred by the attorney-client privilege.
HELD:
The projected testimony of respondent Sansaet, as proposed state
witness, is not barred by the attorney-client privilege.
The attorney-client privilege cannot apply in these cases, as the facts
thereof and the actuations of both respondents therein constitute an
exception to the rule.
It may correctly be assumed that there was a confidential
communication made by Paredes to Sansaet in connection with
12
falsification, and this may reasonably be expected since Paredes was
the accused and Sansaet his counsel therein.
In the American jurisdiction from which our present evidential rule
was taken, there is no particular mode by which a confidential
communication shall be made by a client to his attorney. The privilege
is not confined to verbal or written communications made by the
client to his attorney but extends as well to information
communicated by the client to the attorney by other means.
Nor can it be pretended that during the entire process, considering
their past and existing relations as counsel and client and, further, in
view of the purpose for which such falsified documents were
prepared, no word at all passed between Paredes and Sansaet on the
subject matter of that criminal act. The clincher for this conclusion is
the undisputed fact that said documents were thereafter filed by
Sansaet in behalf of Paredes as annexes to the motion for
reconsideration in the preliminary investigation of the graft case
before the Tanodbayan.[24] Also, the acts and words of the parties
during the period when the documents were being falsified were
necessarily confidential since Paredes would not have invited Sansaet
to his house and allowed him to witness the same except under
conditions of secrecy and confidence.
It is postulated that despite such complicity of Sansaet at the
instance of Paredes in the criminal act for which the latter stands
charged, a distinction must be made between confidential
communications relating to past crimes already committed, and
future crimes intended to be committed, by the client. Corollarily, it is
admitted that the announced intention of a client to commit a crime
is not included within the confidences which his attorney is bound to
respect.
For the application of the attorney-client privilege, the period to be
considered is the date when the privileged communication was made
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
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, if the client seeks his lawyers advice with
respect to a crime that the former has theretofore committed, he is
given the protection of a virtual confessional seal which the attorney-
client privilege declares cannot be broken by the attorney without the
clients consent. 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
lawyers advice.
Statements and communications regarding the commission of a
crime already committed, made by a party who committed it, to an
attorney, consulted as such, are privileged
communications. Contrarily, the unbroken stream of judicial dicta is
to the effect that communications between attorney and client
having to do with the clients contemplated criminal acts, or in aid or
furtherance thereof, are not covered by the cloak of
privileges ordinarily existing in reference to communications between
attorney and client.
In the present cases, the testimony sought to be elicited from Sansaet
as state witness are the communications made to him by physical acts
and/or accompanying words of Paredes at the time he and Honrada,
either with the active or passive participation of Sansaet, were about
to falsify, or in the process of falsifying, the documents which were
later filed in the Tanodbayan by Sansaet and culminated in the
criminal charges now pending in respondent Sandiganbayan. Clearly,
therefore, the confidential communications thus made by Paredes to
Sansaet were for purposes of and in reference to the crime of
falsification which had not yet been committed in the past by Paredes
but which he, in confederacy with his present co-respondents, later
committed. Having been made for purposes of a future offense, those
communications are outside the pale of the attorney-client privilege.
13
Furthermore, Sansaet was himself a conspirator in the commission of
that crime of falsification which he, Paredes and Honrada concocted
and 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
existence of an unlawful purpose prevents the privilege from
attaching.[26] In fact, it has also been pointed out to the Court that
the prosecution of the honorable relation of attorney and client will
not be permitted under the guise of privilege, and every
communication made to an attorney by a client for a criminal purpose
is a conspiracy or attempt at a conspiracy which is not only lawful to
divulge, but which the attorney under certain circumstances may be
bound to disclose at once in the interest of justice.
To prevent a conniving counsel from revealing the genesis of a crime
which was later committed pursuant to a conspiracy, because of the
objection thereto of his conspiring client, would be one of the worst
travesties in the rules of evidence and practice in the noble
profession of law.
US v. GORDON-NIKKAR
FACTS:
Appellant Gordon-Nikkar was convicted after trial by jury of the crime
of conspiracy to possess with intent to distribute approximately four
kilograms of cocaine, and the possession with intent to distribute and
distribution of cocaine.
On the other hand, Brenda Marchand was charged as a co-defendant
with the crimes for which appellant was convicted. Marchand
testified at trial for the Government. Prior to entering her plea,
Marchand had two meetings in the office of appellant's attorney, Mr.
Estrumsa. Marchand, however, was not a client of Estrumsa, and it is
unclear whether all the other persons in these meetings were
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)

Estrumsa's clients. Hence, they are strangers or outsiders to the to "strangers" or outsiders can scarcely be considered a confidential
communication. communication between attorney and client. Therefore, this
communication is not protected by the attorney-client privilege. But
Of the two conversations related by Marchand, the second was the
even if it appeared that the communication in question were
subject of thorough cross-examination by Estrumsa. The second
otherwise privileged (i.e., that the communication was considered
conversation involved Estrumsa's alleged recommendation that
confidential despite the presence of a stranger), the testimony was
Marchand leave the country and go to Venezuela. On redirect, the
nonetheless admissible. The conversations in question dealt with
Government inquired, over defense objection, into the substance of
plans to commit perjury so as to hide the criminal activity of appellant
the conversation during the first meeting. Marchand testified that at
and others. It is beyond dispute that the attorney-client privilege
this meeting the participants, at Mr. Estrumsa's suggestion, agreed to
does not extend to communications regarding an intended crime.
give perjured cover-up testimony at trial to the effect that none of
The policy underlying the attorney-client privilege is to promote the
them had possessed the cocaine, but instead merely happened to be
administration of justice. It would be a perversion of the privilege to
at a party where the cocaine was discovered.
extend it so as to protect communications designed to frustrate
Gordon-Nikkar’s Contention: justice by committing other crimes to conceal past misdeeds.

Her conviction should be reversed because the district court US v. MCPARTLIN

permitted a Government witness, Brenda Marchand, to give
testimony regarding allegedly privileged conversations between FACTS:
appellant's attorney and his clients. The Sanitary District is a municipal corporation with primary
ISSUE: responsibility for disposing of sewage from Chicago and surrounding
areas. The sludge produced as a by-product was disposed of by
Whether the statements in Attorney Estrumsa's office were protected pumping it into nearby lagoons. The District announced plans to have
by the attorney-client privilege. the sludge be transported to another county, Illinois and that they
were soliciting bids for that project.
HELD:
Benton (VP of Ingram Corp) acting with the knowledge of Frederick
NO, the statements in Attorney Estrumsa's office were not protected
Ingram (chairman of the board of Ingram Corporation) bribed
by the attorney-client privilege. A communication divulged to
McPartlin (Illinois legislator) to cause the sludge-hauling contract to
"strangers" or outsiders can scarcely be considered a confidential
be awarded to Ingram Corporation and one of its subsidiaries, and
communication between attorney and client. Therefore, this
later bribed the same officials to secure favorable treatment under
communication is not protected by the attorney-client privilege.
the contract and modifications of the contract.
There were at least five persons present at Estrumsa's office on this
There came a time that the federal grand jury commenced an
occasion; at least one of the persons, Brenda Marchand, and perhaps
investigation of the events surrounding the sludge-hauling contract.
others, were not clients of Mr. Estrumsa. A communication divulged
The government granted immunity to Benton.
14
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
Throughout the period covered by the indictment, Benton kept
diaries, or appointment calendars, in which he made notes
concerning meetings and telephone conversations, naming the
persons involved and often recording the substance of the
conversations.
Destroying Benton's credibility was important to Ingram, as it was to
the other defendants. Such an effort was made, and Frederick Ingram
and McPartlin cooperated in that effort.
An investigator acting for Frederick Ingram's counsel twice
interviewed McPartlin with the consent of the latter's counsel for the
purpose of determining whether there was a basis for challenging the
truth of some of the diary entries. In the second of these interviews
McPartlin made certain statements, which Ingram argues tend to
support his defense. At trial, when Ingram offered evidence of these
statements, McPartlin's counsel objected on the ground, inter alia, of
the attorney-client privilege, and the court sustained the objection on
this and another ground.
ISSUES:
1. Whether statements made by Mcpartlin are covered under
the lawyer-client privilege communication.
2. Whether the statement was covered by the privilege since it
was made to an investigator rather than an attorney.
HELD:
1. YES, the statements made by Mcpartlin cannot be disclosed
because they remain protected by the attorney-client privilege.
McPartlin was entitled to the protection of the attorney-client
privilege, because his statements were made in confidence to an
attorney for a co-defendant for a common purpose related to both
defenses. They were made in connection with the project of
attempting to discredit Benton, a project in which Ingram and
15
McPartlin and their attorneys were jointly engaged for the benefit of
both defendants.
Ingram acknowledges that communications by a client to his own
lawyer remain privileged when the lawyer subsequently shares them
with co-defendants for purposes of a common defense. This is known
as the common-defense rule which has been recognized in cases.
Uninhibited communication among joint parties and their counsel
about matters of common concern is often important to the
protection of their interests. In criminal cases it can be necessary to a
fair opportunity to defend. Therefore, waiver is not to be inferred
from the disclosure in confidence to a co-party's attorney for a
common purpose.
In the case at bar, the judge found, as a preliminary question of fact,
that McPartlin had made the statements to the investigator in
confidence. That finding is not clearly erroneous.
Ingram even argued that the co-defendants' defenses must be in all
respects compatible if the joint-defense privilege is to be applicable.
The cases do not establish such a limitation, and there is no reason to
impose it. Rule 503(b)(3) of the proposed Federal Rules of Evidence,
as approved by the Supreme Court, stated that the privilege applies
to communications by a client "to a lawyer representing another in a
matter of common interest." The Advisory Committee's Note to
proposed Rule 503(b) makes it clear that the joint-interest privilege is
not limited to situations in which the positions of the parties are
compatible in all respects.
In this instance the US SC followed such recommendation. The
privilege protects pooling of information for any defense purpose
common to the participating defendants. Cooperation between
defendants in such circumstances is often not only in their own best
interests but serves to expedite the trial or, as in the case at bar, the
trial preparation.
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
2. The argument of Ingram that the communication was not
privileged because it was made to an investigator rather than an
attorney will not prevail. The investigator was an agent for Ingram's
attorney, however, so it is as if the communication was to the
attorney himself. It has been ruled that that the privilege protects
communications to the attorney's . . . agents . . for rendering his
services.
It was also not fatal to the privilege that McPartlin made the
statement to Ingram's attorney rather than his own. When the
Ingram and McPartlin camps decided to join in an attempt to discredit
Benton, the attorney for each represented both for purposes of that
joint effort. The relationship was no different than it would have been
if during the trial the Ingram and McPartlin attorneys had decided
that Ingram's attorney would cross-examine Benton on behalf of
both, and during cross-examination McPartlin passed Ingram's
attorney a note containing information for use in the cross-
examination. The attorney who thus undertakes to serve his client's
co-defendant for a limited purpose becomes the co-defendant's
attorney for that purpose.
LIM v. CA
Rule on the confidentiality of the physician-patient relationship
FACTS:
Nelly and Juan Lim are lawfully married to each other. Juan filed a
petition for annulment of marriage on the ground that Nelly has been
allegedly suffering from a mental illness called schizophrenia "before,
during and after the marriage and until the present."
Juan’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.
Said counsel orally applied for the issuance of a subpoena ad
16
testificandum requiring Dr. Acampado to testify. Nelly's counsel
opposed the motion on the ground that the testimony sought to be
elicited from the witness is privileged since Dr. Acampado had
examined Nelly in a professional capacity and had diagnosed her to
be suffering from schizophrenia. Over such opposition,
the subpoena was issued.
Nelly's counsel filed an urgent omnibus motion to quash
the subpoena and suspend the proceedings pending resolution of the
motion.
Before Dr. Acampado took the witness stand, the court heard this
urgent motion. Nelly’s counsel argued that having seen and examined
Nelly in a professional capacity, Dr. Acampado is barred from
testifying under the rule on the confidentiality of a physician-patient
relationship. Juan’s counsel contended, however, that Dr. Acampado
would be presented as an expert witness and would not testify on
any information acquired while attending to Nelly in a professional
capacity. The trial court denied the motion and allowed the witness
to testify. Dr. Acampado thus took the witness stand, was qualified by
Juan’s counsel as an expert witness and was asked hypothetical
questions related to her field of expertise. She neither revealed the
illness she examined and treated Nelly for nor disclosed the results of
her examination and the medicines she had prescribed.
Nelly filed with CA a petition for certiorari and prohibition to annul
the order of respondent Judge allowing Dr. Acampado to testify on
the ground that the same was issued with grave abuse of discretion
amounting to lack of jurisdiction, and to prohibit him from proceeding
with the reception of Dr. Acampado's testimony.
CA denied the petition ruling that Nelly failed in establishing the
confidential nature of the testimony given by or obtained from Dr.
Acampado when she testified. Hence, the respondent Judge
committed no grave abuse of discretion.
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
ISSUE:
Whether Dr. Acampado is disqualified to testify by reason of the
privileged communication between the physician and the patient.
HELD:
NO, Dr. Acampado is not disqualified.
Paragraph (c), Section 24 of the Revised Rules on Evidence which
reads:
"SECTION 24. Disqualification by reason of privileged
communication. — The following persons cannot
testify as to matters learned in confidence in the
following cases:
xxx xxx xxx
(c) A person authorized to practice
medicine, surgery or obstetrics cannot in a
civil case, without the consent of the patient,
be examined as to any advice or treatment
given by him or any information which he
may have acquired in attending such patient
in a professional capacity, which information
was necessary to enable him to act in that
capacity, and which would blacken the
reputation of the patient." Cdpr
This rule on the physician-patient privilege is intended to facilitate
and make safe full and confidential disclosure by the patient to the
physician of all facts, circumstances and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure and
publication on the witness stand, to the end that the physician may
form a correct opinion, and be enabled safely and efficaciously to
17
treat his patient. It rests in public policy and is for the general
interest of the community.
Since the object of the privilege is to protect the patient, it may be
waived if no timely objection is made to the physician's testimony.
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."
The physician may be considered to be acting in his professional
capacity when he attends to the patient for curative, preventive, or
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
palliative treatment. Thus, only disclosures which would have been
made to the physician to enable him "safely and efficaciously to treat
his patient" are covered by the privilege. It is to be emphasized that
"it is the tenor only of the communication that is privileged. The mere
fact of making a communication, as well as the date of a
consultation and the number of consultations, are therefore not
privileged from disclosure, so long as the subject communicated is
not stated."
In this case, Nelly failed to establish the presence of the requisites.
Dr. Acampado was presented and qualified as an expert witness.
She did not disclose anything obtained in the course of her
examination, interview and treatment of the petitioner. 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.
The statutory physician-patient privilege, though duly claimed, is not
violated by permitting a physician to give expert opinion testimony in
response to a strictly hypothetical question in a lawsuit involving the
physical mental condition of a patient whom he has attended
professionally, where his opinion is based strictly upon the
hypothetical facts stated, excluding and disregarding any personal
professional knowledge he may have concerning such patient. But in
order to avoid the bar of the physician-patient privilege where it is
asserted in such a case, the physician must base his opinion solely
18
upon the facts hypothesized in the question, excluding from
consideration his personal knowledge of the patient acquired through
the physician and patient relationship. If he cannot or does not
exclude from consideration his personal professional knowledge of
the patient's condition he should not be permitted to testify as to his
expert opinion.
It is quite clear from Dr. Acampado's testimony that Nelly was never
interviewed alone. Said interviews were always conducted in the
presence of a third party, her husband Dr. Juan Lim and her father.
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.
Nothing specific or concrete was offered to show that indeed, the
information obtained from Dr. Acampado would blacken Nelly’s
"character" (or "reputation"). Dr. Acampado never disclosed any
information obtained from the petitioner regarding Nelly’s ailment
and the treatment recommended therefor.
While it may be true that Nelly’s counsel opposed the oral request for
the issuance of a subpoena ad testificandum to Dr. Acampado and
filed a formal motion for the quashal of the said subpoena a day
before the witness was to testify, Nelly 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 advice 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." The particular portions of the
stenographic notes of the testimony of Dr. Acampado quoted in
Nelly's Petition and Memorandum, and in Juan's Memorandum, do
not at all show that any objections were interposed. Even granting ex
gratia that the testimony of Dr. Acampado could be covered by the
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
privilege, the failure to seasonably object thereto amounted to a
waiver thereof.
KROHN v. CA
FACTS:
Edgar Krohn, Jr. and Ma. Paz Fernandez were married in Manila on
June 14, 1964 and had three children. Their marriage eventually went
sour. In 1971, Ma. Paz underwent psychological testing purportedly
in an effort to ease the marital strain. This however proved futile
since they finally separated in fact in 1973.
In 1975, Edgar was able to secure a copy of the confidential
psychiatric report on Ma. Paz. Presenting the report among others, 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." This decree was
eventually confirmed and pronounced “Final and Definite”.
On 1993, Edgar filed a petition for annulment of his marriage with the
RTC. In his petition, he cited the Confidential Psychiatric Evaluation
Report which Ma. Paz merely denied in her Answer as “either
unfounded or irrelevant”.
Petitioner’s arguments: She argues that since Sec. 24, par. (c), Rule
130, of the Rules of Court prohibits a physician from testifying on
matters which he may have acquired in attending to a patient in
professional capacity, with more reason should a third person (like
respondent-husband) be PROHIBITED from testifying on privileged
matters between a physician and patient or from submitting any
medical report, findings or evaluation prepared by a physician which
the latter has acquired as a result of his confidential and privileged
relation with a patient.
19
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. Her thesis is that what cannot be
done directly should not be allowed to be done indirectly.
Respondent’s arguments: 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. In fact, according to him, the Rules sanction his testimony
considering that a husband may testify against his wife in a civil case
filed by one against the other. Besides, 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
when it was presented to the Tribunal Metropolitanum Matrimoniale
which took it into account among others in deciding the case and
declaring their marriage null and void.
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." At any rate,
failure to interpose a timely objection at the earliest opportunity to
the evidence presented on privileged matters may be construed as an
implied waiver.
ISSUE:
Whether the Confidential Psychiatric Evaluation Report is admissible
HELD:
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
YES. Petitioner's arguments are misplaced. The requisites in order
that the privilege may be successfully invoked are: (a) the privilege is
claimed in a civil cases; (b) the person against whom the privilege is
claimed is one duly authorized to practice medicine, surgery or
obstetrics; (c) such person acquired the information while he was
attending to the patient in his professional capacity; (d) the
information was necessary to enable him to act in that capacity; and,
(e) the information was confidential and, if disclosed, would blacken
the reputation (formerly character) of the patient.
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.
BLUE CROSS HEALTH v. OLIVARES
FACTS:
Neomi Olivares applied for a health care program and paid the
amount in full worth Php 12, 000.00 more or less including the
unlimited consultations. The health care’s coverage excluded
ailments due to pre-existing conditions. Barely 38 days later, Olivares
20
suffered a stroke and was admitted at the Medical City. When the bill
came, petitioner (BC) refused to pay thus constraining the spouses
Olivares to pay. A collection suit was then filed and as per
respondent, the claim was not denied but only pending report from
one Dr. Saniel to determine if there was a pre-existing condition. In a
letter to petitioner (BC), Dr. Saniel told BC that the patient (Olivares)
was invoking patient-physician confidentiality and any medical
information regarding her neurological status must not be released
without her (Olivares) approval.
MeTC: Dismissed for lack of cause of action.
RTC: Reversed decision from MeTC and ordered Blue Cross to pay
actual and other damages.
CA: Affirmed RTC.
ISSUE:
Whether petitioner was able to prove that respondent Neomi's stroke
was caused by a pre-existing condition and therefore was excluded
from the coverage of the health care agreement.
HELD:
NO. Petitioner was not able to prove pre-existing condition.
Under the health care program provision, petitioner is not liable for
pre-existing conditions if they occur within one year from the time
the agreement takes effect. BC argues that Olivares prevented the Dr.
Saniel from submitting his report and in effect, the presumption that
evidence willfully suppressed would be adverse if produced should
apply in its favor. Olivares countered that it was incumbent upon BC
to prove the pre-existing condition; BC failed to do this.
Petitioner never presented any evidence to prove that respondent
Neomi's stroke was due to a pre-existing condition. It merely
speculated that Dr. Saniel's report would be adverse to Neomi, based
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
on her invocation of the doctor-patient privilege. This was a
disputable presumption at best.
Suffice it to say that this presumption does not apply if (a) the
evidence is at the disposal of both parties; (b) the suppression was
not willful; (c) it is merely corroborative or cumulative and (d) the
suppression is an exercise of a privilege. Here, respondents' refusal to
present or allow the presentation of Dr. Saniel's report was justified.
It was privileged communication between physician and patient.
Since petitioner had the burden of proving exception to liability, it
should have made its own assessment of whether respondent Neomi
had a pre-existing condition when it failed to obtain the attending
physician's report. It could not just passively wait for Dr. Saniel's
report to bail it out. The mere reliance on a disputable presumption
does not meet the strict standard required under our jurisprudence.
JOSIELENE CHAN v. JOHNNY CHAN
FACTS:
Josielene filed a petition for the declaration of nullity of her marriage
to Johnny, the dissolution of their conjugal partnership of gains, and
the award of custody of their children to her.
Josielene: Johnny failed to care for and support his family and that a
psychiatrist diagnosed him as mentally deficient due to incessant
drinking and excessive use of prohibited drugs. Indeed, she had
convinced him to undergo hospital confinement for detoxification
and rehabilitation.
Johnny: resisting the action, he claims that it was Josielene who failed
in her wifely duties. He even agreed to marriage counseling, to save
their marriage, but when he and Josielene got to the hospital, two
men forcibly held him by both arms while another gave him an
injection. The marriage relations got worse when the police
21
temporarily detained Josielene for an unrelated crime and released
her only after the case against her ended. By then, their marriage
relationship could no longer be repaired.
During the pre-trial conference, Josielene pre-marked the Philhealth
Claim Form1 (this form was attached by Johnny to his answer as proof
of the fact that he was forcibly confined at a rehabilitation center)
which carries a physician's handwritten note stating that Johnny
suffered from "methamphetamine and alcohol abuse." Thereafter,
Josielene filed with the RTC a request for the issuance of a
subpoena duces tecum addressed to Medical City, covering Johnny's
medical records when he was there confined, accompanied by a
request of motion to "be allowed to submit in evidence" the said
records.
Johnny opposed the motion, arguing that the medical records were
covered by physician-patient privilege. The lower court, however,
denied the issuance of subpoena duces tecum.
ISSUE:
Whether the denial of the issuance of a subpoena duces
tecum covering Johnny's hospital records on the ground that these
are covered by the privileged character of the physician-patient
communication is correct.
HELD:
NO. The time to object to the admission of evidence, such as the
hospital records, would be at the time they are offered (Sec. 36, Rule
132). Josielene's request for subpoena duces tecum is premature since
the offer of evidence is made at the trial. She will have to wait for trial
to begin before making a request for the issuance of a subpoena duces
tecum covering Johnny's hospital records. It is when those records are
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
produced for examination at the trial, that Johnny may opt to object,
not just to their admission in evidence, but more so to their disclosure.
However, it is possible to treat Josielene's motion for the issuance of
a subpoena duces tecum covering the hospital records as a motion for
production of documents, a discovery procedure available to a litigant
prior to trial under Sec. 1, Rule 127. But this right to compel the
production of documents has a limitation: the documents to be
disclosed are "not privileged."
However, to allow the disclosure during discovery procedure of the
hospital records the results of tests that the physician ordered, the
diagnosis of the patient's illness, and the advice or treatment he gave
him would be to allow access to evidence that is inadmissible without
the patient's consent. Physician memorializes all these information in
the patient's records. Disclosing them would be the equivalent of
compelling the physician to testify on privileged matters he gained
while dealing with the patient, without the latter's prior consent.
NERI v. SENATE COMMITTEE ON ACCOUNTABILITY
FACTS:
On April 21, 2007, the Department of Transportation and
Communication (DOTC) entered into a contract with Zhong Xing
Telecommunications Equipment (ZTE) for the supply of equipment
and services for the National Broadband Network (NBN) Project in the
amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The
Project was to be financed by the People's Republic of China.
In connection with this NBN Project, various Resolutions were
introduced in the Senate to investigate the following:
(1) Circumstances leading to the approval of the broadband contract,
(2) The role of the officials concerned in getting it consummated,
22
(3) To investigate national security implications of such contract, and
(4) The justification of the national broadband network project of the
government.
Respondent Committees initiated the investigation by sending
invitations to certain personalities and cabinet officials involved in the
NBN Project. Petitioner Neri was among those invited. He was
summoned to appear and testify on September 18, 20, and 26 and
October 25, 2007. However, he attended only the September 26
hearing, claiming he was "out of town" during the other dates.
In the September 18, 2007 hearing, businessman Jose de Venecia III
testified that several high executive officials and power brokers were
using their influence to push the approval of the NBN Project by the
NEDA. It appeared that the Project was initially approved as a Build-
Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA
acquiesced to convert it into a government-to-government project, to
be financed through a loan from the Chinese Government.
Neri testified before respondent Committees for eleven (11) hours.
He disclosed that then Commission on Elections (COMELEC) Chairman
Benjamin Abalos offered him P200 Million in exchange for his
approval of the NBN Project. He further narrated that he informed
President Arroyo about the bribery attempt and that she instructed
him not to accept the bribe. However, when probed further on what
they discussed about the NBN Project, petitioner refused to answer,
invoking "executive privilege". In particular, he refused to answer the
questions on (a) whether or not President Arroyo followed up the
NBN Project, (b) whether or not she directed him to prioritize it, and
(c) whether or not she directed him to approve.
Unrelenting, respondent Committees issued a Subpoena Ad
Testificandum to petitioner, requiring him to appear and testify on
November 20, 2007.
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
Executive Secretary Eduardo R. Ermita requested respondent
Committees to dispense with petitioner's testimony on the ground of
executive privilege.
Considering that Sec. Neri has been lengthily interrogated on the
subject in an unprecedented 11-hour hearing, wherein he has
answered all questions propounded to him except the foregoing
questions involving executive privilege, Neri's testimony on 20
November 2007 on the ZTE / NBN project should be dispensed with.
Following the ruling in Senate v. Ermita, the foregoing
questions fall under conversations and correspondence
between the President and public officials which are
considered executive privilege (Almonte v. Vasquez, G.R.
95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9,
2002). Maintaining the confidentiality of conversations of the
President is necessary in the exercise of her executive and
policy decision making process. The expectation of a President
to the confidentiality of her conversations and
correspondences, like the value which we accord deference
for the privacy of all citizens, is the necessity for protection of
the public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision-making. Disclosure of
conversations of the President will have a chilling effect on the
President, and will hamper her in the effective discharge of
her duties and responsibilities, if she is not protected by the
confidentiality of her conversations.
The context in which executive privilege is being invoked is
that the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People's
Republic of China. Given the confidential nature in which
these information were conveyed to the President, he cannot
provide the Committee any further details of these
23
conversations, without disclosing the very thing the privilege is
designed to protect.
On November 20, 2007, petitioner did not appear before respondent
Committees. Thus, on November 22, 2007, the latter issued the show
cause Letter requiring him to explain why he should not be cited in
contempt.
Petitioner replied to respondent Committees, manifesting that it was
not his intention to ignore the Senate hearing and that he thought the
only remaining questions were those he claimed to be covered by
executive privilege.
In addition, petitioner submitted a letter prepared by his counsel,
Atty. Antonio R. Bautista, stating, among others that: (1) his (Neri's)
non-appearance was upon the order of the President; and (2) his
conversation with President Arroyo dealt with delicate and sensitive
national security and diplomatic matters relating to the impact of the
bribery scandal involving high government officials and the possible
loss of confidence of foreign investors and lenders in the Philippines.
Respondent Committees found petitioner's explanations
unsatisfactory. They issued an order, citing him in contempt of
respondent Committees and ordering his arrest and detention at the
Office of the Senate Sergeant-At-Arms until such time that he would
appear and give his testimony.
Petitioner moved for the reconsideration of the order and
emphasized his willingness to testify on new matters, however,
respondent Committees did not respond to his request for advance
notice of questions.
Petitioner filed a Supplemental Petition for Certiorari (With Urgent
Application for TRO/Preliminary Injunction), seeking to restrain the
implementation of the said contempt Order.
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
The Court issued a Status Quo Ante Order (a) enjoining respondent
Committees from implementing their contempt Order, (b) requiring
the parties to observe the status quo prevailing prior to the issuance
of the assailed order, and (c) requiring respondent Committees to file
their comment.
Petitioner contends that his conversations with President Arroyo are
"candid discussions meant to explore options in making policy
decisions." According to him, these discussions "dwelt on the impact
of the bribery scandal involving high government officials on the
country's diplomatic relations and economic and military affairs and
the possible loss of confidence of foreign investors and lenders in
the Philippines." He also emphasizes that his claim of executive
privilege is upon the order of the President and within the
parameters laid down in Senate v. Ermita and United States v.
Reynolds. Lastly, he argues that he is precluded from disclosing
communications made to him in official confidence under Section 7 of
Republic Act No. 6713, otherwise known as Code of Conduct and
Ethical Standards for Public Officials and Employees, and Section
24 (e) of Rule 130 of the Rules of Court.
Respondent Committees assert the contrary. They argue that (1)
petitioner's testimony is material and pertinent in the investigation
conducted in aid of legislation; (2) there is no valid justification for
petitioner to claim executive privilege; (3) there is no abuse of their
authority to order petitioner's arrest; and (4) petitioner has not come
to court with clean hands.
In the oral argument, the following issues were ventilated:
1. What communications between the President and
petitioner Neri are covered by the principle of 'executive
privilege'?
1.a Did Executive Secretary Ermita correctly invoke the
principle of executive privilege, by order of the
24
President, to cover (i) conversations of the President in
the exercise of her executive and policy decision-
making and (ii) information, which might impair our
diplomatic as well as economic relations with the
People's Republic of China?
1.b. Did petitioner Neri correctly invoke executive
privilege to avoid testifying on his conversations with
the President on the NBN contract on his assertions
that the said conversations "dealt with delicate and
sensitive national security and diplomatic matters
relating to the impact of bribery scandal involving
high government officials and the possible loss of
confidence of foreign investors and lenders in the
Philippines" x x x within the principles laid down in
Senate v. Ermita (488 SCRA 1 [2006])?
1.c Will the claim of executive privilege in this case
violate the following provisions of the Constitution:
Sec. 28, Art. II (Full public disclosure of all
transactions involving public interest)
Sec. 7, Art. III (The right of the people to
information on matters of public concern)
Sec. 1, Art. XI (Public office is a public trust)
Sec. 17, Art. VII (The President shall ensure that
the laws be faithfully executed)
and the due process clause and the principle of separation of
powers?
2. What is the proper procedure to be followed in invoking
executive privilege?
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
3. Did the Senate Committees gravely abuse their discretion in
ordering the arrest of petitioner for non-compliance with the
subpoena?
ISSUES:
1. Are the communications elicited by the subject three (3)
questions covered by executive privilege?
2. Did respondent Committees commit grave abuse of discretion
in issuing the contempt Order?
HELD:
First, the powers of Congress as embodied in Sections 21 and 22 of
Article VI of the Constitution must be differentiated.
SECTION 21. The Senate or the House of Representatives or
any of its respective committees may conduct inquiries in aid
of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.
SECTION 22. The heads of department may upon their own
initiative, with the consent of the President, or upon the
request of either House, or as the rules of each House shall
provide, appear before and be heard by such House on any
matter pertaining to their departments. Written questions
shall be submitted to the President of the Senate or the
Speaker of the House of Representatives at least three days
before their scheduled appearance. Interpellations shall not
be limited to written questions, but may cover matters related
thereto. When the security of the state or the public interest
so requires and the President so states in writing, the
appearance shall be conducted in executive session.
25
While the above provisions are closely related and complementary to
each other, they should not be considered as pertaining to the same
power of Congress. Section 21 relates to the power to conduct
inquiries in aid of legislation. Its aim is to elicit information that may
be used for legislation. On the other hand, Section 22 pertains to the
power to conduct a question hour, the objective of which is to obtain
information in pursuit of Congress' oversight function. Simply stated,
while both powers allow Congress or any of its committees to
conduct inquiry, their objectives are different.
This distinction gives birth to another distinction with regard to the
use of compulsory process. Unlike in Section 21,
Congress cannot compel the appearance of executive officials under
Section 22. The Court's pronouncement in Senate v. Ermita is clear:
When Congress merely seeks to be informed on how
department heads are implementing the statutes which it has
issued, its right to such information is not as imperative as
that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as
a matter of duty. In such instances, Section 22, in keeping with
the separation of powers, states that Congress may
only request their appearance. Nonetheless, when the inquiry
in which Congress requires their appearance is 'in aid of
legislation' under Section 21, the appearance is mandatory for
the same reasons stated in Arnault.
In fine, the oversight function of Congress may be facilitated
by compulsory process only to the extent that it is performed
in pursuit of legislation.
Ultimately, the power of Congress to compel the appearance
of executive officials under section 21 and the lack of it under
Section 22 find their basis in the principle of separation of
powers. While the executive branch is a co-equal branch of
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
the legislature, it cannot frustrate the power of Congress to
legislate by refusing to comply with its demands for
information.
The availability of the power of judicial review to resolve the issues
raised in this case has also been settled in Senate v. Ermita, when it
held:
...the right of Congress to conduct inquiries in aid of legislation
is, in theory, no less susceptible to abuse than executive or
judicial power. It may thus be subjected to judicial review
pursuant to the Court's certiorari powers under Section 1,
Article VIII of the Constitution.
I. The Communications Elicited by the Three (3) Questions are
Covered by Executive Privilege
The power of Congress to conduct inquiries in aid of legislation is
broad. This is based on the proposition that a legislative body cannot
legislate wisely or effectively in the absence of information respecting
the conditions which the legislation is intended to affect or
change. But, the power has limitations. It is imperative that it is done
in accordance with the Senate or House duly published rules of
procedure and that the rights of the persons appearing in or affected
by such inquiries be respected.
The power extends even to executive officials and the only way for
them to be exempted is through a valid claim of executive
privilege. This directs us to the consideration of the question -- is
there a recognized claim of executive privilege despite the
revocation of E.O. 464?
A- There is a Recognized Claim of Executive Privilege Despite the
Revocation of E.O. 464
(EO 464: ENSURING OBSERVANCE OF THE PRINCIPLE OF
SEPARATION OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE
26
PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS
APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION
UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES)
At this juncture, it must be stressed that the revocation of E.O. 464
does not in any way diminish our concept of executive privilege. This
is because this concept has Constitutional underpinnings. Unlike the
United States which has further accorded the concept with statutory
status by enacting the Freedom of Information Act and the Federal
Advisory Committee Act, the Philippines has retained its
constitutional origination.
In United States v. Nixon, the U.S. Court recognized a great public
interest in preserving "the confidentiality of conversations that take
place in the President's performance of his official duties." It thus
considered presidential communications as "presumptively
privileged." Apparently, the presumption is founded on the
"President's generalized interest in confidentiality." The privilege is
said to be necessary to guarantee the candor of presidential advisors
and to provide "the President and those who assist him… with
freedom to explore alternatives in the process of shaping policies
and making decisions and to do so in a way many would be
unwilling to express except privately."
The U.S. Court of Appeals delved deeper and ruled that there are two
(2) kinds of executive privilege:
(1) Presidential communications privilege - pertains to
"communications, documents or other materials that reflect
presidential decision-making and deliberations and that the President
believes should remain confidential; and
(2) Deliberative process privilege - includes advisory opinions,
recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated.
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
Presidential communications privilege applies to decision-making of
the President while, the deliberative process privilege, to decision-
making of executive officials.
The first is rooted in the constitutional principle of separation of
power and the President's unique constitutional role; the second on
common law privilege. Unlike the deliberative process privilege,
the presidential communications privilege applies to documents in
their entirety, and covers final and post-decisional materials as well
as pre-deliberative ones. As a consequence, congressional or judicial
negation of the presidential communications privilege is always
subject to greater scrutiny than denial of the deliberative process
privilege.
Turning on who are the officials covered by the presidential
communications privilege, the privilege extends only to White House
Staff that has "operational proximity" to direct presidential decision-
making. Thus, the privilege is meant to encompass only those
functions that form the core of presidential authority, involving what
the court characterized as "quintessential and non-delegable
Presidential power," such as commander-in-chief power,
appointment and removal power, the power to grant pardons and
reprieves, the sole-authority to receive ambassadors and other public
officers, the power to negotiate treaties, etc.
Courts ruled early that the Executive has a right to withhold
documents that might reveal military or state secrets, identity of
government informers in some circumstances, and information
related to pending investigations. An area where the privilege is
highly revered is in foreign relations.
In Chavez v. PCGG, this Court held that there is a "governmental
privilege against public disclosure with respect to state secrets
regarding military, diplomatic and other security matters." In Chavez
v. PEA, there is also a recognition of the confidentiality of Presidential
27
conversations, correspondences, and discussions in closed-door
Cabinet meetings.
The claim of executive privilege is highly recognized in cases where
the subject of inquiry relates to a power textually committed by the
Constitution to the President, such as the area of military and foreign
relations. Under our Constitution, the President is the repository of
the commander-in-chief, appointing, pardoning, and
diplomatic powers. Consistent with the doctrine of separation of
powers, the information relating to these powers may enjoy greater
confidentiality than others.
The above cases, especially, Nixon, In Re Sealed Case and Judicial
Watch, somehow provide the elements of presidential
communications privilege, to wit:
1) The protected communication must relate to a
"quintessential and non-delegable presidential power."
2) The communication must be authored or "solicited and
received" by a close advisor of the President or the President
himself. The judicial test is that an advisor must be in
"operational proximity" with the President.
3) The presidential communications privilege remains a
qualified privilege that may be overcome by a showing of
adequate need, such that the information sought "likely
contains important evidence" and by the unavailability of the
information elsewhere by an appropriate investigating
authority.
In the case at bar, Executive Secretary Ermita premised his claim of
executive privilege on the ground that the communications elicited by
the three (3) questions "fall under conversation and correspondence
between the President and public officials" necessary in "her
executive and policy decision-making process" and, that "the
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
information sought to be disclosed might impair our diplomatic as
well as economic relations with the People's Republic of China."
Simply put, the bases are presidential communications privilege and
executive privilege on matters relating to diplomacy or foreign
relations.
Using the above elements, indeed, the communications elicited by
the three (3) questions are covered by the presidential
communications privilege.
First, the communications relate to a "quintessential and non-
delegable power" of the President, i.e. the power to enter into an
executive agreement with other countries. This authority of the
President to enter into executive agreements without the
concurrence of the Legislature has traditionally been recognized in
Philippine jurisprudence.
Second, the communications are "received" by a close advisor of the
President. Under the "operational proximity" test, petitioner can be
considered a close advisor, being a member of President Arroyo's
cabinet.
And third, there is no adequate showing of a compelling need that
would justify the limitation of the privilege and of
the unavailability of the information elsewhere by an appropriate
investigating authority.
Confidentiality in executive privilege is not absolutely protected by
the Constitution.
In the case of Nixon v. Sirica, it was held that presidential
communications are presumptively privileged and that the
presumption can be overcome only by mere showing of public need
by the branch seeking access to conversations. The courts are
enjoined to resolve the competing interests of the political branches
of the government "in the manner that preserves the essential
28
functions of each Branch." Here, the record is bereft of any
categorical explanation from respondent Committees to show a
compelling or citical need for the answers to the three (3) questions
in the enactment of a law. Instead, the questions veer more towards
the exercise of the legislative oversight function under Section 22 of
Article VI rather than Section 21 of the same Article. Senate v.
Ermita ruled that the "the oversight function of Congress may be
facilitated by compulsory process only to the extent that it is
performed in pursuit of legislation." It is conceded that it is difficult
to draw the line between an inquiry in aid of legislation and an
inquiry in the exercise of oversight function of Congress. In this
regard, much will depend on the content of the questions and the
manner the inquiry is conducted.
Respondent Committees argue that a claim of executive privilege
does not guard against a possible disclosure of a crime or
wrongdoing. We see no dispute on this. It is settled in United States v.
Nixon that "demonstrated, specific need for evidence in pending
criminal trial" outweighs the President's "generalized interest in
confidentiality."
The present case's distinction with the Nixon case is very evident.
In Nixon, there is a pending criminal proceeding where the
information is requested and it is the demands of due process of law
and the fair administration of criminal justice that the information be
disclosed. This is the reason why the U.S. Court was quick to "limit
the scope of its decision." It stressed that it is "not concerned here
with the balance between the President's generalized interest in
confidentiality x x x and congressional demands for information."
In the case at bar, the information here is elicited, not in a criminal
proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita
stressed that the validity of the claim of executive privilege depends
not only on the ground invoked but, also, on the procedural
setting or the context in which the claim is made.
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
Furthermore, in Nixon, the President did not interpose any claim of
need to protect military, diplomatic or sensitive national security
secrets. In the present case, Executive Secretary Ermita categorically
claims executive privilege on the grounds of presidential
communications privilege in relation to her executive and policy
decision-making process and diplomatic secrets.
Respondent Committees further contend that the grant of
petitioner's claim of executive privilege violates the constitutional
provisions on the right of the people to information on matters of
public concern. We might have agreed with such contention if
petitioner did not appear before them at all. But petitioner made
himself available to them during the September 26 hearing, where he
was questioned for eleven (11) hours and expressly manifested his
willingness to answer more questions from the Senators, with the
exception only of those covered by his claim of executive privilege.
The right to public information, like any other right, is subject to
limitation. Section 7 of Article III provides:
The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research
data used as basis for policy development, shall be afforded
the citizen, subject to such limitations as may be provided by
law.
Clearly, there is a recognized public interest in the confidentiality of
certain information. We find the information subject of this case
belonging to such kind.
More than anything else, though, the right of Congress or any of its
Committees to obtain information in aid of legislation cannot be
equated with the people's right to public information. The former
cannot claim that every legislative inquiry is an exercise of the
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people's right to information. The distinction between such rights is
laid down in Senate v. Ermita:
There are, it bears noting, clear distinctions between the right
of Congress to information which underlies the power of
inquiry and the right of people to information on matters of
public concern. The demand of a citizen for the production of
documents pursuant to his right to information does not have
the same obligatory force as a subpoena duces tecum issued
by Congress. Neither does the right to information grant a
citizen the power to exact testimony from government
officials. These powers belong only to Congress, not to an
individual citizen.
Thus, while Congress is composed of representatives elected
by the people, it does not follow, except in a highly qualified
sense, that in every exercise of its power of inquiry, the
people are exercising their right to information.
The members of respondent Committees should not invoke as
justification in their exercise of power a right properly belonging to
the people in general. This is because when they discharge their
power, they do so as public officials and members of Congress. The
right to information must be balanced with and should give way, in
appropriate cases, to constitutional precepts particularly those
pertaining to delicate interplay of executive-legislative powers and
privileges which is the subject of careful review by numerous decided
cases.
B- The Claim of Executive Privilege is Properly Invoked
We now proceed to the issue -- whether the claim is properly
invoked by the President. Jurisprudence teaches that for the claim to
be properly invoked, there must be a formal claim of privilege, lodged
by the head of the department which has control over the matter." A
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
formal and proper claim of executive privilege requires a "precise and
certain reason" for preserving their confidentiality.
The Letter of Executive Secretary Ermita satisfies the requirement. It
serves as the formal claim of privilege. There, he expressly states that
"this Office (referring to the Office of the President) is constrained to
invoke the settled doctrine of executive privilege as refined
in Senate v. Ermita, and has advised Secretary Neri accordingly."
That is more than enough compliance.
With regard to the existence of "precise and certain reason," we find
the grounds relied upon by Executive Secretary Ermita specific
enough so as not "to leave respondent Committees in the dark on
how the requested information could be classified as privileged." The
case of Senate v. Ermita only requires that an allegation be made
"whether the information demanded involves military or diplomatic
secrets, closed-door Cabinet meetings, etc." The particular ground
must only be specified. The enumeration is not even intended to be
comprehensive." The following statement of grounds satisfies the
requirement:
The context in which executive privilege is being invoked is
that the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People's
Republic of China. Given the confidential nature in which
these information were conveyed to the President, he cannot
provide the Committee any further details of these
conversations, without disclosing the very thing the privilege is
designed to protect.
At any rate, as held further in Senate v. Ermita, the Congress must not
require the executive to state the reasons for the claim with such
particularity as to compel disclosure of the information which the
privilege is meant to protect. This is a matter of respect to a
coordinate and co-equal department.
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2. Respondent Committees Committed Grave Abuse of Discretion in
Issuing the Contempt Order
Grave abuse of discretion means "such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, in
other words where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility and it must be so
patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined or to act at all in
contemplation of law."
When respondent Committees issued the show cause Letter dated
November 22, 2007, petitioner replied immediately, manifesting that
it was not his intention to ignore the Senate hearing and that he
thought the only remaining questions were the three (3) questions he
claimed to be covered by executive privilege. In addition thereto, he
submitted Atty. Bautista's letter, stating that his non-appearance was
upon the order of the President and specifying the reasons why his
conversations with President Arroyo are covered by executive
privilege. Both correspondences include an expression of his
willingness to testify again, provided he "be furnished in advance"
copies of the questions. Without responding to his request for
advance list of questions, respondent Committees issued the Order
citing him in contempt of respondent Committees and ordering his
arrest and detention at the Office of the Senate Sergeant-At-Arms
until such time that he would appear and give his testimony.
Thereupon, petitioner filed a motion for reconsideration, informing
respondent Committees that he had filed the present petition
for certiorari.
Respondent Committees committed grave abuse of discretion in
issuing the contempt Order in view of five (5) reasons.
First, there being a legitimate claim of executive privilege, the
issuance of the contempt Order suffers from constitutional infirmity.
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
Second, respondent Committees did not comply with the
requirement laid down in Senate v. Ermita that the invitations should
contain the "possible needed statute which prompted the need for
the inquiry," along with "the usual indication of the subject of inquiry
and the questions relative to and in furtherance thereof." Compliance
with this requirement is imperative, both under Sections 21 and 22 of
Article VI of the Constitution. This must be so to ensure that the rights
of both persons appearing in or affected by such inquiry are
respected as mandated by said Section 21 and by virtue of the
express language of Section 22. Unfortunately, despite petitioner's
repeated demands, respondent Committees did not send him an
advance list of questions.
Third, a reading of the transcript of respondent Committees' January
30, 2008 proceeding reveals that only a minority of the members of
the Senate Blue Ribbon Committee were present during the
deliberation. Section 18 of the Rules of Procedure Governing Inquiries
in Aid of Legislation provides that:
"The Committee, by a vote of majority of all its members,
may punish for contempt any witness before it who disobeys
any order of the Committee or refuses to be sworn or to
testify or to answer proper questions by the Committee or any
of its members."
Clearly, the needed vote is a majority of all the members of the
Committee. Apparently, members who did not actually participate in
the deliberation were made to sign the contempt Order.
Fourth, we find merit in the argument of the OSG that respondent
Committees likewise violated Section 21 of Article VI of the
Constitution, requiring that the inquiry be in accordance with the
"duly published rules of procedure." We quote the OSG's
explanation:
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The phrase 'duly published rules of procedure' requires the
Senate of every Congress to publish its rules of procedure
governing inquiries in aid of legislation because every Senate
is distinct from the one before it or after it. Since Senatorial
elections are held every three (3) years for one-half of the
Senate's membership, the composition of the Senate also
changes by the end of each term. Each Senate may thus enact
a different set of rules as it may deem fit. Not having
published its Rules of Procedure, the subject hearings in aid
of legislation conducted by the 14th Senate, are therefore,
procedurally infirm.
And fifth, respondent Committees' issuance of the contempt Order is
arbitrary and precipitate. It must be pointed out that respondent
Committees did not first pass upon the claim of executive privilege
and inform petitioner of their ruling. Instead, they curtly dismissed his
explanation as "unsatisfactory" and simultaneously issued the Order
citing him in contempt and ordering his immediate arrest and
detention.
A fact worth highlighting is that petitioner is not an unwilling
witness. He manifested several times his readiness to testify before
respondent Committees. He refused to answer the three (3)
questions because he was ordered by the President to claim
executive privilege. It behooves respondent Committees to first rule
on the claim of executive privilege and inform petitioner of their
finding thereon, instead of peremptorily dismissing his explanation as
"unsatisfactory." Undoubtedly, respondent Committees' actions
constitute grave abuse of discretion for being arbitrary and for
denying petitioner due process of law. The same quality afflicted their
conduct when they (a) disregarded petitioner's motion for
reconsideration alleging that he had filed the present petition before
this Court and (b) ignored petitioner's repeated request for an
advance list of questions, if there be any aside from the three (3)
EVIDENCE | 4TH Batch | ATTY. TORREGOSA | EH403 (2nd Sem, SY 2017-2018)
questions as to which he claimed to be covered by executive
privilege.
Respondent Committees should have exercised the same restraint,
after all petitioner is not even an ordinary witness. He holds a high
position in a co-equal branch of government.
Petition GRANTED.
LEE v. CA
FACTS:
This case is a petition for cancellation and correction of entries in the
record of birth.
Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh) entered the
Philippines in the 1930s as immigrants from China. They had 11
children. However, Lee brought another woman from China, Tiu
Chuan (Tiu) as housemaid but had illicit relationship with her. They
had other children as well. After Keh died, these children however,
claimed that they are Keh’s and Lee’s children and not Tiu’s.
The investigation of the NBI showed that it cannot be that these other
children (8 children all in all) were born out of Lee and Keh and it
must have been from a much younger woman. As per NBI, xxx In
other words, 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 led two
separate petitions for the deletion from the certicate 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. The Lee-Keh children requested for an ex parte issuance of a
subpoena ad testificandum to compel Tiu to testify, which was
32
opposed by Tiu claiming it was oppressive and violative of the rule on
parental privilege.
RTC quashed subpoena, CA reversed.
ISSUE:
W/N the trial court may compel Tiu to testify in the correction of
entry case.
HELD:
YES. Sec. 25, Rule 130 reads:
SECTION 25. SECTION 25. Parental and lial privilege Parental and filial
privilege. — No person may be . — No person may be compelled to
testify against his parents, other direct ascendants, compelled to
testify against his parents, other direct ascendants, children or other
direct descendants.
Tiu here invokes only the filial privilege, she 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.
The Lee-Keh children have a legitimate reason for seeking Tiu’s
testimony because Keh already died and can no longer testify that the
children were not hers. (In relation to quashing the subpoena)