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DISQUALIFICATION BY REASON OF MARRIAGE / PRIVILEGED COMMUNICATION G.R. No. L-568 July 16, 1947 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN FRANCISCO, defendant-appellant. HILADO, J.: Convicted of the crime of parricide by the Court of First Instance of Mindoro, Juan Francisco appeals to this Court and asks us to reverse the decision of the trial court and to acquit him of the crime charged. On March 4, 1945, defendant, who had been previously arrested on charges of robbery, was being held as detention prisoner in the municipal jail of Mansalay, Mindoro. On that date he requested permission from the chief of police, and he was allowed to go with Sergeant Pacifico Pimentel, who was detailed to guard him. Upon their reaching the house, the sergeant allowed the prisoner to see his wife who was at the time in a room of said house, while said sergeant remained at the foot of the stairs. After a few moments, Pimentel heard the scream of a woman. Running upstairs, he met defendant's wife running out of the room and holding her right breast which was bleeding. Still moments later, Pimentel saw defendant lying down with his little son Romeo, aged one year and a half, on his breast. Pimentel also found defendant to have a wound in his belly while his child had a wound in the back. Pimentel found the child dead. The prosecution, in recommending the imposition of the capital penalty upon the accused, relies mainly on: (1) the affidavit, Exhibit C (translation, Exhibit C-1), which is a virtual confession of the accused; (2) Exhibit D, which is the record made by the justice of the peace of Mansalay of the arraignment of the defendant upon which the latter entered a plea of guilty; and (3) the rebuttal testimony of Emilia Taladtad, wife of the appellant. Exhibit C is an affidavit signed and sworn to by the appellant before the justice of the peace of Mansalay on March 5, 1945,. Exhibit C-1 is its English translation. In said affidavit appellant declares that: "I asked permission from the chief of police so that I may be able to raise my bond and to indicate to me the house of one Guillermo Gervasio, a policeman, and I was consented and the sergeant of police accompanied me to my house; that upon arriving at the house, Sgt. Pacifico Pimentel allowed me to go up in order that I may be able to talk to my wife and the sergeant of police awaited me in the stairs of the house; when I was in the house, I remembered what my uncle told me to the effect that he would order someone to kill me because I am a shame and a dishonor to our family and suddenly I lost my sense and I thought to myself that if someone would kill me it would be more preferable for me to kill myself; when I looked at the bed I saw a scissor near my wife and unconsciously I picked up the said scissor and immediately stabbed my wife whereupon I looked for my child on the bed and stabbed him; I killed my son Romeo Francisco whose age is more or less two years and after that I stabbed myself; after stabbing myself, I heard a shot and the sergeant of police asked me if I would surrender to him or not; I replied him "yes" then I lost my consciousness." Sergeant of Police Pimentel, whose veracity we find in the evidence no reason to doubt, declared (p. 6, t.s.n., Lunar) that the accused confessed to him that because he was already tired or disgusted with his life "on account of the accusation of his father-in-law" against him, he wanted to wipe out his family by stabbing his wife, his son and himself, and killing the three of them. The same witness also stated (p. 9, ibid.) that the accused confessed to him that he stabbed his wife, his child and himself because he was ashamed, as his father-in-law told him that he should rather die than live in shame for having dishonored the family of his wife. The voluntariness and spontaniety of the confession contained in Exhibit C was testified to by the justice of the peace of Mansalay and police sergeant Pimentel, one Sebastian Punzalan, and the chief of police Alfredo Iwahi; that said justice of the peace had previously read the contents of the same affidavit to the accused and that the accused signed without any intimidation having been exerted in the presence of said justice of the peace; that the accused signed voluntarily in the session hall of the justice of the peace court in Barrio Paclasan (pp. 26-27, ibid.) Pimentel testified, upon the same point, that no force was exerted upon appellant to state what is contained in the affidavit; that he had not maltreated or boxed the accused as pretended by the latter; that the contents of the exhibit were read to the accused; that he did not threatened the accused to shoot the latter if he would not swear to Exhibit C before the justice of the peace, as declared by said accused (pp. 25-26, ibid.) In this connection we note from the testimony of the accused himself that on the way to the house of the justice of the peace after the incident, he was being helped by the chief of police Iwahi when, according to him, Sergeant Pimentel told him that he was going to swear to the contents of Exhibit C and that if he would not do so Pimentel would shoot him (p. 17, ibid.); that (the same accused assured the court) Iwahi treated him well (t.s.n., p. 20, ibid.); and really from the entire testimony of this accused the good treatment accorded him by Chief of Police Iwahi is clearly discernible. He was under preventive detention in the house of Iwahi and it was Iwahi who suggested or told him, after he had killed and dressed the former's pig, that he bring a kilo of the meat to his (appellant's) wife (p. 13, ibid.) It was also Iwahi who allowed him to go to his house on the same occasion for the purposes of the procurement of his bail (p. 13, ibid.). Under these circumstances, besides the complete absence of proof of any reason or motive why Pimentel should so threaten the accused, we find the accused's version incredible. On page 16 of the same transcript, answering a question by the Court of First Instance, the accused testified that he understands English and the translation Exhibit C-1 of the affidavit Exhibit C is in that language. Other indications of appellant's lack of trustworthiness are: While on page 14 of said transcript he testified that he was the only one who went to the house of his wife because Pimentel, according to him, remained in the house of Roberto Magramo, on page 13 he declared that he was accompanied by the sergeant of police of Mansalay, Pacifico Pimentel to the house of his wife and that the chief of police ordered Pimentel to so accompany him. Contradicting the same pretension of his having gone alone to his wife's house is his own testimony on page 17 of the transcript wherein he assured affirmatively the question of his own counsel whether Pimentel was the policeman who was with him to guard him on the occasion of his going to his wife's house; and really, while he imputed upon his wife the wounding of their child, who died as a consequence thereof, he admitted that he did not tell this to the justice of the peace of Mansalay (p. 18, ibid.), and the reason he assigned for this passive conduct on his part to the effect that he was afraid of Pimentel (p. 19, ibid.) is patently unacceptable, for no motive whatsoever has been established to make us believe that the accused had reasons to be so afraid of Pimentel. Appellant's testimony to the effect that Pacifico Pimentel was testifying against him because Pimentel "being my guard that time he might be held responsible for allowing me to go alone" (p. 17, ibid.) is absolutely without merit. This testimony clearly reveals a desire to show that because Pimentel allowed the accused to go up the house while the former stayed at the foot of the stairs, said Pimentel would be responsible for what had happened unless the accused was the one who killed the child and wounded his wife rather than the wife having accidentally wounded the child and killed him and been stabbed by the accused, who also stabbed himself. As we said a moment ago, we do not give any merit to this purpose in testifying against the accused to relieve himself of all responsibility for what had happened, it would have been more conducive to this result if Pimentel had testified that it was not the accused, whom he had allowed to go upstairs unguarded, who was guilty, but his wife, of the wounding of the child, and that the accused wounded his wife only as the result of the obfuscation produced by the child's death. And the fact that Pimentel gave the version which might place no small blame on him for allowing the accused to go up the house alone, gives special weight to his testimony. This case, as developed by the evidence for the prosecution, which has not been destroyed nor enervated by that of the defense, presents a truly strange happening. But the fact of the commission of the crime of parricide appears to us to have been established beyond reasonable doubt. As to the reasons impelling the commission of the act, the case is a strange one and admittedly not common. But while it is not necessary even to prove motive in case the commission of the crime is established as required by law (U.S. vs. Ricafor, 1 Phil., 173; U.S. vs. McMann, 4 Phil., 561; U.S. vs. Reyes, 18 Phil., 495; U.S. vs. Balmori and Apostol, 18 Phil., 578), here we have a case of a crime proven beyond reasonable doubt, not absolutely without a proven motive, but with proof of a motive testified to by the accused himself in his confession, strange though it be. But at times "truth is stranger than fiction," and it so happens here. The law must be applied to the facts.

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We have scanned and searched the evidence and the record diligently for facts and circumstances which might sufficiently establish insanity or any allied defense, but we have failed to find them. As we construe the evidence, we believe that Exhibit C contains the truth, as narrated by the accused himself who, at the time of making it, must have been moved only by the determination of a repentant father and husband to acknowledge his guilt for facts which, though perhaps done under circumstances productive of a diminution of the exercise of will-power, fell short of depriving the offender of consciousness of his acts. We will have occasion to further consider this aspect of the case later. Exhibit C was signed and sworn to by appellant the day following the fatal event. Presumably, on making this confession appellant had not yet had time to reflect upon the consequences of such a confession to himself — egoism was not yet allowed to operate against the promptings of his conscience. But when on February 23, 1946 — almost one year after — this man testified in his own defense in the Court of First Instance, he already had had ample opportunity to reflect upon those consequences. And what happened? As in similar cases, he repudiated his confession, and alleged torture and violence to have been exerted upon his person and his mind in order, so he now pretends, to extract it from him. As we find the confession to have been given voluntarily, we feel justified in concluding that its subsequent repudiation by the accused almost a year after must have been due to his fear of its consequences to himself, which he not improbably thought might cost him his own life. It was the struggle between the noble and the ignoble in the man, and the latter, aided by instinct of self-preservation, won. Defense counsel attacks the value of Exhibit C as evidence of guilt for the reason that the statements contained therein were not, counsel contends, given spontaneously but through use of violence and intimidation. He also questions the admissibility of Exhibit D on the ground that it has not been properly identified; and, with more vigor and stronger emphasis, he impugns the admissibility of the testimony of appellant's wife, invoking the provision of section 26 (d) of Rule 123 prohibiting the wife and the husband from testifying for or against each other. As to Exhibit C, this document was sworn to and subscribed by said accused before the justice of the peace of Mansalay. This official testified that he asked the prisoner before the latter signed said exhibit whether he understood the contents thereof, and that said latter answered in the affirmative. The witness further declared that appellant signed the exhibit voluntarily and that said appellant said that the said affidavit was his (p. 10, ibid.). There is a total absence of evidence, besides the testimony of appellant himself, to show that his statements contained in said exhibit were extracted form him by the use of violence and intimidation. While we are not unaware of the practice resorted to by some peace officers of extracting admissions or confessions from persons accused of crime by the employment of third-degree methods, in the present case we fail to find from the evidence sufficient proof to destroy the categorical testimony of the justice of the peace that Exhibit C was signed by appellant voluntarily and with a full understanding thereof. Furthermore, the statements of appellant in said Exhibit C were corroborated by the testimony of his wife on rebuttal. This leads us to the consideration of the admissibility of the wife's testimony. The rule contained in section 265 (d) of Rule 123 is an old one. Courts and text-writers on the subject have assigned as reasons therefor the following: First, identity of interest; second, the consequent danger of perjury; third, the policy of the law which deems it necessary to guard the security and confidences of private life even at the risk of an occasional failure of justice, and which rejects such evidence because its admission would lead to domestic disunion and unhappiness; and fourth, because where a want of domestic tranquility exists, there is danger of punishing one spouse through the hostile testimony of the other. This has been said in the case of Cargill vs. State (220 Pac., 64; 25 Okl. Cr., 314; 35 A.L.R., 133), thus: The reasons given by law text-writers and courts why neither a husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed by one against the other have been stated thus: First, identity of interests; second, the consequent danger of perjury; third, the policy of the law which deems it necessary to guard the security and confidences of private life even at the risk of an occasional failure of justice, and which rejects such evidence because its admission would lead to domestic disunion and unhappiness; and fourth, because, where a want of domestic tranquility exists, there is danger of punishing one spouse through the hostile testimony of the other. (70 C.J., 119.) However, as all other general rules, this one has its own exceptions, both in civil actions between the spouses and in criminal cases for offenses committed by one against the other. Like 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 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. At any rate, in the instant case the wife did not testify in the direct evidence for the prosecution but under circumstances presently to be stated. It will be noted that the wife only testified against her husband after the latter, testifying in his own defense, imputed upon her the killing of their son. (p. 15, ibid.) By all rules of justice and reason this gave the prosecution, which had theretofore refrained from presenting the wife as a witness against her husband, the right to do so, as it did in rebuttal; and the the wife herself the right to so testify, at least, in self-defense, not of course, against being subjected to punishment in that case in which she was not a defendant but against any or all of various possible consequences which might flow from her silence, namely: (1) a criminal prosecution against her which might be instituted by the corresponding authorities upon the basis of her husband's aforesaid testimony; (2) in the moral and social sense, her being believed by those who heard the testimony orally given, as well as by those who may read the same, once put in writing, to be the killer of her infant child. It has been aptly said that the law of evidence is the law of common sense. Presuming the husband who so testified against his wife to be endowed with common sense, he must be taken to have expected that the most natural reaction which the said testimony would give rise to on the part of the prosecution, as well as of his wife, was to deny upon rebuttal the new matter which was involved in the same testimony, namely, the imputation that it was his wife who killed their little son. Upon the part of the prosecution, because he not only limited himself to denying that he was the killer, but went further and added what was really a new matter consisting in the imputation of the crime upon his wife. And upon the part of the wife, because of the reasons already set forth above. Hence, in giving such testimony, the husband must, in all fairness, be held to have intended all its aforesaid natural and necessary consequences. By his said act, the husband — himself exercising the very right which he would deny to his wife upon the ground of their marital relations — must be taken to have waived all objection to the latter's testimony upon rebuttal, even considering that such objection would have been available at the outset. At this point, it behooves us to emphasize the all-important role of the State in this case. The State being interested in laying the truth before the courts so that the guilty may be punished and the innocent exonerated, must have the right to offer the rebutting testimony in question, even against the objection of the accused, because it was the latter himself who gave rise to its necessity. It may be said that the accused husband thought that he would have more chances of convincing the court of his pretended innocence if he pointed to his wife as having caused the death of their child, instead of simply denying that he was the author of the fatal act. To this we would counter by saying that if he was to be allowed, for his convenience, to make his choice and thereby impute the act upon his spouse, justice would be partial and one-sided if both the State and the wife were to be absolutely precluded from introducing the latter's rebutting testimony. As well-settled as this rule of marital incompetency itself is the other that it may be waived. Waiver of incompetency. — Objections to the competency of a husband or wife to testify in a criminal prosecution against the other may be waived as in the case of the other witnesses generally. Thus, the accused waives his or her privilege by calling the other spouse as a witness for him or her, thereby making the spouse subject to cross-examination in the usual manner. It is well-established that where an accused introduces his wife as a witness in his behalf, the state is entitled to question her as to all matters germane and pertinent to her testimony on direct examination. It is also true that objection to the spouse's competency must be made when he or she is first offered as witness, and that the incompetency may be waived by the failure of the accused to make timely objection to the admission of the spouse's testimony,

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although knowing of such incompetency, and the testimony admitted, especially if the accused has assented to the admission, either expressly or impliedly. Other courts have held that the witness's testimony is not admissible even with the other spouse's consent. Clearly, if the statute provides that a spouse shall in no case testify against the other except in a prosecution for an offense against the other, the failure of the accused to object does not enable the state to use the spouse as a witness. (3 Wharton's Criminal Evidence, 11th Ed., section 1205, pp. 2060-2061.) Wharton, in note 10 at the foot of page 2060 of the cited volume refers us to section 1149 appearing on page 1988 of the same volume, dealing with waiver objection to incompetency of witnesses in general. We transcribe this section for convenient reference: Waiver of objection to incompetency. — A party may waive his objection to the competency of a witness and permit him to testify. A party calling an incompetent witness as his own waives the incompetency. Also, if, after such incompetency appears, there is failure to make timely objection, by a party having knowledge of the incompetency, the objection will be deemed waived, whether it is on the ground of want of mental capacity or for some other reason. If the objection could have been taken during the trial, a new trial will be refused and the objection will not be available on writ of error. If, however, the objection of a party is overruled and the ruling has been excepted to, the party may thereafter examine the witness upon the matters as to which he was allowed to testify to without waiving his objections to the witness's competency. (Ibid., section 1149, p. 1988.) It will be noted, as was to be expected, that in the last above-quoted section, the author mentions certain specific cases where the courts concerned hold that there was waiver, but for obvious reasons neither the author nor said courts have attempted to make an enumeration of all possible cases of waiver. In the very nature of things, it would be impossible to make a priori such a complete enumeration and to say that it is exclusive. So long as the Legislature itself does not make its own statutory and exclusive specification of cases of such waiver — and we doubt that it ever will — no complete and exclusive enumeration can, nor should, be attempted by the courts, for in the absence of such legislation the cases of waiver will be as indefinite in number as indefinite are and always will be the varying and unpredictable circumstances surrounding each particular case. To illustrate, Mr. Wharton says above that the accused waives his or her privilege by calling the other spouse as a witness for him or her, thereby making the spouse subject to cross-examination in the usual manner, the reason being that the State is entitled to question the spouse so presented as to all matters germane and pertinent to the direct testimony. In the same way, and for a similar reason, when the herein appellant gave his testimony in question in his defense, the State had the right to rebut the new matter contained in that testimony consisting in the imputation upon his wife of the death of the little boy. And that rebuttal evidence, which was rendered necessary by appellant's own testimony, could be furnished only by his wife who, as he fully knew, was alone with him and their son at the precise place and time of the event. This right to rebut is secured to the State, no less than to the accused, by Rule 115, section 3, paragraph (c), the provision further authorizing the court, in furtherance of justice, to permit one or the other party to offer "new additional evidence bearing upon the main issue in question." So that if the waiver that we here declare to flow from the above-mentioned testimony of appellant does not happen to be among those which were mentioned in the cases cited by Mr. Wharton, that is no reason against the existence of said waiver. When the husband testified that it was his wife who caused the death of their son, he could not, let us repeat, justly expect the State to keep silent and refrain from rebutting such new matter in his testimony, through the only witness available, namely, the wife; nor could he legitimately seal his wife's lips and thus gravely expose her to the danger of criminal proceedings against her being started by the authorities upon the strength and basis of said testimony of her husband, or to bear the moral and social stigma of being thought, believed, or even just suspected, to be the killer of her own offspring. A decent respect and considerate regard for the feelings of an average mother will tell us that such a moral and social stigma would be no less injurious to her than a criminal punishment. And if the wife should, in such a case and at such a juncture, be allowed to testify upon rebuttal, the scope of her testimony should at least be the same as that of her husband. This is only simple justice and fairness dictated by common sense. Since the husband had testified that it was his wife who caused the death of the little boy, she should be allowed to say that it was really her husband who did it. We hold that it is not necessary, to justify such rebuttal evidence, and to declare the existence of the waiver upon which it was based, that the wife be in jeopardy of punishment in the same case by reason of such testimony of her accused husband. The rule of waiver of objection to the competency of witnesses generally does not require this prerequisite in the case between husband and wife. Rather the rule makes the determination of the question hinge around the consequences which by common sense, in justice and in fairness, should be deemed to have been expected by the spouse who first testified naturally to flow from his act of giving that testimony. At any rate, the trial court not only had the power to allow the State to utilize the wife as rebuttal witness, but also the discretion to permit "new additional evidence bearing upon the main issue in question." But even restricting the wife's testimony to merely contradicting her husband's version that she was the one who killed their child, there is evidence beyond reasonable doubt that appellant was the killer. With the testimony of both spouses upon the point, instead of that of the accused alone, let justice take its course. As to Exhibit D, this document was a part of the record of the case in the justice of the peace of court which was expressly presented by the prosecution as evidence in the Court of First Instance. But after all has been said and done, in justice to the accused, we believe that, whether we are dealing with a simpleton or an eccentric, or we have here one of those well-nigh inexplicable phenomena in human conduct where the judge finds himself at a loss to discover an adequate motivation for the proven acts of the accused, — indulging all reasonable intendments in favor of appellant, we are of opinion that when he committed the crime charged against him he must have been suffering from some illness (of the body, the mind, the nerves, or the moral faculty) as is contemplated in paragraph 9 of article 13 of the Revised Penal Code as a mitigating circumstance, namely, "such illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him of consciousness of his acts." Article 246 of the Revised Penal Code punishes parricide by the penalty of reclusion perpetua to death. Article 63, paragraph 3, of the same code, provides that when the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, and the law prescribes a penalty composed of two indivisible penalties, the lesser penalty shall be applied; in this case, in view of the above indicated circumstance and there being no aggravating circumstance, the lesser penalty is reclusion perpetua, which was the penalty correctly applied by the trial court, which penalty, of course, carries with it the accessory penalties provided for in article 41 of the said Code. The accused should also be sentenced to indemnify the heirs of the deceased Romeo Francisco in the sum of P2,000, and to pay the costs. As above modified, the appealed judgment is affirmed, with costs against appellant. So ordered. PADILLA, J.: I concur in the result. To my mind the evidence is sufficient to support the judgment of conviction without taking into consideration the testimony of the appellant's wife in rebuttal. I agree with Mr. Justice Feria in his dissent that she is incompetent to testify against the appellant, her husband, there being an objection to her testifying against him. Separate Opinions PABLO, M., concurrente y disidente: Concurro con la opinion de la mayoria en cuanto condena al acusado. En mi opinion aun sin tener en cuenta la declaracion de la esposa del acusado en contra-pruebas, obra en autos concluyente prueba que establece la culpabilidad del acusado.

. and the latter in so testifying would naturally accuse the defendant to be the guilty party in order to save himself or herself from criminal liability.. there is danger of punishing one spouse through the hostile testimony of the other. the law would have also disqualified one spouse to give testimony which in any way disparages or disfavor the other although the latter is not a party to the cause. I am going to demonstrate our relative positions. left or right hand?-. The prohibition contained in section 26 (d) of Rule 123 only relates to cases in which the testimony of a spouse is offered for or against the other in a proceeding to which the latter is a party (U. Is this the very scissors when she swung her arm? — R. When I sat beside my wife and our son was lying face downward on the bed I was joking my wife because at the time I was drunk." (P.R. the testimony of the appellant does not require any rebuttal by his wife." The pertinent portion of the majority decision reads as follows: "The reasons given by law text-writers and courts why neither a husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed by one against the other have been stated thus: First. concurro con la disidencia del Magistrado Sr. I used to touch her. and "constituted a waiver of all objections to her testimony. outweigh those in support of the general rule. in order to free himself from liability as defendant in a criminal case would testify. The child cried. because it can not be used or admitted without her consent as evidence in a criminal case instituted against her for her son's death. And it does not call for a denial by the wife in herself or own defense. far from producing said results. the security and confidences of private life which the law aims at protecting will be nothing but ideals which. imparted such wrong belief to and induced her thereby to testify imputing the commission of the crime to her husband although he is not guilty.J. articulo 26. as in the present case. harmony.) Who may dispel from the mind the doubt that the prosecution in the court below. this one has its own exceptions. is that right?" and she answered: "No sir he was the one who inflicted the wound to my son Romeo Francisco. 70 Phil. then I stood up and evaded the blow. and fourth. Court: He may answer. P. merely leave a void in the unhappy home. P. without placing the latter in danger of being prosecuted and convicted by his testimony. Like the rule itself.. P. through their absence. the latter can not testify against her husband appellant. where a want of domestic tranquility exists. Under the new theory of the majority. that the testimony of the appellant in his defense is admissible against and tended to make his wife criminally responsible. may take advantage of such testimony to induce that other spouse to testify in her defense according to the prosecution. 31 Phil. notes. And the reason is obvious. for the majority has decided to affirm it and it would be useless now for the undersigned to dissent from or concur in the conviction of the appellant. as the appellant has testified. R. and tranquility of the family." "P. J. believing erroneously. because. Yes. it was because the fiscal erroneously assumed in his interrogatory above quoted that the appellant later imputed to her the crime charged. What hand did your wife swing. and destroy the identity of interest. por inadmissible. Although the testimony of the husband against his wife who is not a party to the case is admissible. but because she wanted to defend and save herself. In such case identity of interests disappears and the consequent danger of perjury based on that identity is nonexistent. if confined in prison. for said reasons do not apply to the latter case. his testimony. both in civil actions between the spouses and in criminal cases for offenses committed by one against the other. the prosecutor of one spouse who. would result in the acquittal and release of the defendant spouse and enable the accused. and which rejects such evidence because its admission would lead to domestic disunion and unhappiness. the reason based upon such harmony and tranquility fails. . Feria. yet. Natividad. and the courts should take into consideration in determining the probative force of such a testimony. might have a different effect. Such testimony. After she swung her arm what happened? — R. Fiscal: Objection. disturb the peace. third. In the present case. Who may give the assurance that the defendant's wife in the present case did testify the way she she testified against her husband. who is not a party to the case. but in good faith. 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. This premise or assumption is incorrect. lead to domestic disunion and unhappiness. we dissent from the new theory enunciated in the majority opinion that the appellant's testimony to the effect that his wife was the one who unintentionally inflicted the wound which caused the death of the child. La declaracion de la esposa debe ser excluida como prueba contra el acusado. so she swung her hand backward towards me. the policy of the law which deems it necessary to guard the security and confidences of private life even at the risk of an occasional failure of justice. that his other spouse who is not a party to the case is responsible for their child's death. not because her husband is really guilty. as said testimony can not be used as evidence against the wife in a civil case or criminal prosecution against her. Were it applicable. Her right hand. according to the clear provisions of law. Likewise. if believed by the court. taking into consideration the way the question were propounded to her by the prosecution and her answers thereto? The prosecution asked her: "The accused testified here that you were the one who inflicted the wound at the back of Romeo Francisco. FERIA. just to save herself. for the testimony of the appellant quoted below clearly belies the fiscal's assumption: P. Did you see him inflict the wound to the child? — R. Please tell the Court what happened when you sat beside your wife? Sr.S. in such a situation. 182. People vs. P. the exceptions are backed by sound reasons which. 23. For instance. st. Later on I heard the boy cried. dissenting: Without necessity of discussing the merits of the case and deciding whether the appellant's conviction by the Court of First Instance must be affirmed or reversed.. Where one of the spouses testifies in his defense that the other spouse.4 En cuanto a la interpretacion de la Regla 123. second. is the one who committed the crime charged. Concepcion. seccion (d). but the law does not so. Yes sir. in the excepted cases. What was the relative position of your son with respect to you and your wife? — R. (the accused was facing his wife and the wife was facing in the opposite direction and the son was between them lying face downward and little bit behind on the bed). 315). no basis. the consequent danger of perjury. are also applicable to testimony of one spouse against the other who is not a party to the cause which it is offered or given. capacitated his wife to testify as a witness on rebuttal against her husband. sir. to join again his spouse. as all other general rules. vs. because. it would not effectively strain the marital and domestic relations. (70 C. identity of interests. It is plain that if the wife testified against her husband. 119)" However." The new theory of the majority is evidently untenable for it is predicated upon the incorrect premise or assumption that the abovementioned reasons or grounds of the incapacity of one of the spouses to testify against the other in a proceeding in which the latter is a party.

The conclusion in the majority decision that. justly expect the State to keep silent and refrain from rebutting such new matter in his testimony.W. in the present case against her husband. or the consent of the other or both in criminal cases. notes)." But even restricting the wife's testimony to merely contradicting her husband's version that she was the one who killed their child. the scope of her testimony should at least be the same as that of her husband. and everybody is presumed to know the law that incapacitates the wife to testify against her accused husband and contradict what the latter may testify against her however false it may be. Rule 115.. is not a rebutting but a new additional evidence bearing upon the main issue whether or not the defendant is guilty of the offense charged. Therefore. or section 26 (d). it was held that incompetency of a wife continues as at common-law where she is not rendered competent under the provision of the enabling statute. she should be allowed to say that it was really her husband who did it. as additional evidence bearing upon the main issue in question. it was held that unless wife comes within exceptions of the enabling statute granting exceptions upon the common-law rule excluding her testimony in an action in which her husband is interested." and "to bear the moral and social stigma of being thought. squarely applicable to the present case. For according to section 3 (c).. it is to be borne in mind that the capacity or incapacity of one of the spouses to testify against the other is governed by the statute in force and the Court should construe the statute such as it is. the trial court not only had the power to allow the State to utilize the wife as rebuttal witness. . .) To this we may reply that." because said testimony is not admissible against his wife in that or in any other cases." is out of place for it has no bearing on the issue. inasmuch as our statute on the matter. 190. and not the guilt or innocence of the appellant. It is for the law-making power to evolve new theories and enact law in accordance therewith. her testimony is inadmissible and can not be taken into consideration in the decision of the case. one spouse who calls the other as a witness thereby consents that the latter shall testify. Co. State (176 Ark. and the consent of a spouse can not render the other spouse competent. The conclusion of fact on which a sentence declaring a defendant guilty must be positive and not argumentative. in self-defense..W. through the only witness available. as required by section 12. unless the court in furtherance of justice. st. Natividad (above cited). Article IX of the Constitution. . 131 S. (P. I got hold of the scissors that she was holding and stabbed her and then stabbed myself. in the first place. and apply for the first time as if it were the law in the present case against the appellant. Birmmerle (150 Mo. Chester P. ibid. which are based on the common-law. the decision should express clearly and distinctly the facts and the law on which the decision convicting the appellant is based. This is only simple justice and fairness dictated by common sense. then he or she is presumed to have consented to it. husband and wife are absolutely incompetent against each other except in a civil case instituted by one against the other. as amended. 491. . . 544). Under the common-law. would be to amend the provision of said section 26 (d) of Rule 123 and establish another exception. 3 S. 126). ante.) By all rules of justice and reason this gave the prosecution. The provisions of section 26 (c). were copied from those of section 383 (3) of Act No. 23. that "a wife can not testify against her husband in a criminal case in which the latter was charged with having killed the child of the former. When I stood up our child was already wounded so I became obfuscated. and if the adverse party offers one of the spouses against the other and the latter does not object. to make the testimony of the wife admissible in rebuttal against the appellant. can not gravely expose her to the danger of criminal proceeding against her. 15. a defendant in a criminal case. & Ste. Then what happened? — R. and the latter were in turn taken from similar provisions of law in force in the States of the Union. G.. "offer rebutting testimony. and not as it should. (171 Mo. Rule 123. let us repeat. at least. provides that a wife cannot be examined for or against her husband without his consent except in a criminal case for crime committed by one against the other. Evidently. 153 S. or in a criminal case for a crime committed by one against the other. believed. the court had discretion to permit the prosecution to present the testimony of the wife. in testifying in his own defense. to be the killer of her own offspring.. We can not evolve a new theory. the testimony of the husband that his wife was the one who unintentionally inflicted the wound which caused the death of their child. is absolutely untenable. aside from the testimony of the appellant's wife. P. And in another case entitled Connecticut Fire Ins. the wife. the guilt of the appellant in the present case. by any process of reasoning or stretch of imagination. Since the husband had testified that it was his wife who caused the death of the little boy. (P. but we can not legally apply it as a law now against the appellant. the majority opinion adds the following: When the husband testified that it was his wife who caused the death of their son. which had theretofore refrained from presenting the wife as a witness against her husband. after the defendant has presented evidence in support of his defense. believed. 70. and this court has already decided in the case of People vs. 24." The matter under discussion is the incompetency of the wife to testify.. And if the appellant is to be convicted on the strength of other evidence. or even just suspected to be the killer of her own offspring. and the appellant in the present case objected strenuously to the testimony of her wife against him." Her testimony would have been in rebuttal only if she had limited herself to say that she did not inflict the wound on her son. It may be a good theory or a sufficient reason for amending the law in order to include it as one of the exceptions of the rule incapacitating one spouse to testify against the other. or even just suspected.W. the right to do so. the testimony of the wife to the effect that her husband was the one who inflicted and she saw him inflict the wound on Romeo Francisco that caused the death of the latter (pp. directly or in rebuttal. if not in rebuttal." Besides. It is elemental that the scope of a rebuttal is circumscribed to contradicting or destroying the evidence of the adverse party tending to prove new matter in favor of the latter. App.R. that is. permit them to offer new additional evidence bearing upon the main issue in question. there is evidence beyond reasonable doubt that appellant was the killer. Co. and can not extend to disproving directly the main issue in question. . he could not. But in many states. but also the discretion to permit "new additional evidence bearing upon the main issue in question. statutes were enacted granting exceptions upon the common-law rule and enabling one of them to testify against the other with the consent of the latter in civil case. 704. not being sure of its stand on the admissibility of the testimony of the wife against her husband. that has never been adopted by the statutes anywhere in the States of the Union and in this jurisdiction. Rule 123. And if the wife should. and to the wife herself the right to so testify.. says that his wife was the one who accidentally inflicted the fatal wound on their small child. But the majority. construe said provision so as to capacitate a wife to be a witness against her husband if the latter. In the case of Toskstein vs. 654. as it did in rebuttal. in the instant case the wife did not testify in the direct evidence for the prosecution but under circumstances presently to be stated. the Supreme Court of Arkansas ruled that statutes providing that no person shall be excluded from testifying in prosecution for violation of Liquor Act do not change the general rule that a wife cannot testify against her husband in a criminal prosecution. Under such statute. namely. In the case of Conley vs. however reasonable and plausible it may be. there is other evidence beyond reasonable doubt that the appellant is the killer. And in the second place. . Then what happened? — R.5 P. in such a case and at such a juncture. We can not. 980). . the wife can not testify. Hence the last statement in the above quoted decision of the majority that "even restricting the wife's testimony as merely contradicting the husband's version that she was the one who killed their child. be allowed to testify upon rebuttal. but rebutting only. further states: At any rate. since we have already shown that such a testimony is inadmissible as evidence. . It will be noted that the wife only testified against her husband after the latter. And not being sure as to the scope of a rebuttal testimony. [2d]. At any rate. vs. the prosecution may. testifying in his own defense imputed upon her the killing of their little son. nor could he legitimately seal his wife's lips and thus gravely expose her to the danger of criminal proceedings against her being started by the authorities upon the strength and basis of said testimony of her husband. or to bear the moral and social stigma of being thought.

SUSAN RAMIREZ. t. the wife of the accused. and decide whether this confession alone is sufficient to support the appellant's conviction. it would be impossible to make a priori such a complete enumeration and to say that it is exclusive. COURT: Swear in the witness. and the spouse against whom the other is to testify does not object. and it would be too presumptuous to assume that this Court is the first to find correctly that the case is one of the exceptions upon said rule. Petitioner. of Wharton on Criminal Evidence. herein respondent. . versus. the estranged wife of the accused. 1998 gasoline in the house located at Blk.: Before us is a petition for review on certiorari1 assailing the Decision2 of the Court of Appeals dated May 31. Malabon City. which refers to waiver of objection to competency of a witness in general." The last-quoted section in the decision reads in its pertinent part as follows: SEC. either expressly or impliedly. that accused Maximo Alvarez after pouring the gasoline on the door of the house of Susan Ramirez ignited and set it on fire. thereby making the spouse subject to cross-examination in the usual manner. chairs and others. 56154. because the defendant had strongly and persistently objected to his wife taking the witness stand (st. although knowing of such incompetency. petitioner. Esperanza Alvarez. The cases of waiver specified by Wharton in sections 1149 and 1205 of his work on criminal evidence above-quoted. Aquino. The above-mentioned cases of the objection to the competency of one of the spouses to testify against the other are the only ones. we are offering the testimony of this witness for the purpose of proving that the accused Maximo Alvarez committed all the elements of the crime being charged particularly that accused Maximo Alvarez pour on May 29. 11th ed. as well as of the objection to the competency of any other witness to testify. — Objections to the competency of a husband or wife to testify in a criminal prosecution against the other may be waived as in the case of other witnesses generally. SANDOVAL-GUTIERREZ. consent provided for as exception by law. Respondent. Br. Also. 1149. On June 21. as Judge RTC. there is a failure to make timely objection. p. but for obvious reasons neither the author nor the said courts have attempted to make an enumeration of all possible cases of waiver. 19933-MN for arson3 pending before the Regional Trial Court. The only cases in which the incapacity of one of the spouses to testify against the other is considered waived according to law." Susan Ramirez. .R. Waiver of objection to incompetency. court or authority. Malabon.R. and that the incompetency may be waived by the failure of the accused to make timely objection to the admission of the spouse's testimony. . and no law. are those stated in section 1205.. and no writers on evidence nor courts did or could enumerate or recognize other cases. this Court must. which says the following: SEC. by a party having knowledge of the incompetency. Branch 72. Dagat-dagatan. Authors or writers on evidence do not generally evolve and formulate new legal theories but only expound those based on positive laws as the latter have been interpreted and construed up-to-date by the courts. is the complaining witness in Criminal Case No. A party calling an incompetent witness as his own waives the incompetency. sister of respondent. Vol. J. quoted in the very opinion of the majority. the accused waives his or her privilege by calling the other spouse as a witness for him or her. Navotas. Your Honor. reject the testimony of the defendant's wife. He is the husband of Esperanza G. In the very nature of things. Thus. Benjamin M.6 The majority's conclusion that the testimony of the appellant to the effect that the cause of the death of their child was the wound unintentionally inflicted by his wife. And. in the interest of justice. are the only cases of waiver of the objection to the competency of one spouse to testify against the other. has ever recognized such testimony as a waiver. since no legislative or law making power had so provided. therefore. concludes by saying "It will be noted. and Maximo Alvarez. a case similar to the present must have been arisen. the state is entitled to question her as to all matters germane and pertinent to her testimony on direct examination. as was to be expected. The accused is Maximo Alvarez. As the consent may be either express or implied: express when the spouse who is a party presents the other spouse to testify. respondents. 1205. the members of the family as well as Esperanza Alvarez. and implied when the adverse party or the prosecution presents the other spouse as a witness. 5. if. admitted as rebuttal evidence over the objection of the appellant. It is well-established that where an accused introduces his wife as a witness in his behalf. 72. 3. ALCANTARA: We are calling Mrs. MM. whether it on the ground of want of mental capacity or for some other reason. because there are no other cases provided for by the statutes or declared by the courts in their decisions. entitled "Susan Ramirez. xxx ATTY. from time immemorial up to the present. constituted a waiver of all objection to her testimony. just as there can not be any other way of giving such consent than those above-stated. 1999. the private prosecutor called Esperanza Alvarez to the witness stand as the first witness against petitioner. Waiver of incompetency. Alvarez.n. Metro Manila.. Lot 9. the author mentions certain specific cases where the courts concerned hold that there was waiver. Therefore. so there is no other case of waiver under the laws now in force. the house owned by his sister-in-law Susan Ramirez. But the decision. Phase 1-C. her husband. vs. herein petitioner. after quoting subsequently section 1149 of the same work. Not only Wharton but all works on criminal evidence enumerate only those cases. that in the last-quoted section. Jr. No. Petitioner and his counsel raised no objection. because what is called waiver is merely or nothing more than the consent of one spouse that the other testify in a case in which he or she is interested or a party. that as a consequence of the accused in successfully setting the fire to the house of Susan Ramirez. that the accused at the time he successfully set the house on fire (sic) of Susan Ramirez knew that it was occupied by Susan Ramirez. the objection will be deemed waived. 143439 October 14. is without any foundation in fact and in law. . after such incompetency appears. so the waiver may also be expressed and implied. and the testimony admitted. SP No. 2000 in CA-G. It is also true that objection to the spouse's competency must be made when he or she is first offered as a witness. It is to be presumed that during several centuries in which the rule excluding the testimony of one spouse in a case in which the other is interested has been in force. 2005 MAXIMO ALVAREZ. — A party may waive his objection to the competency of a witness and permit him to testify. MESIAH: (sic) Your Honor..s. G. including shoes. and considered by the majority as corroborative of the defendant's extrajudicial confession Exhibit C. the door of said house was burned and together with several articles of the house. especially if the accused has assented to the admission. For the majority can not point out a single decision in support of the exception which the majority intends to establish now for the first time. Hon. Esperanza testified as follows: "ATTY. 23).

Q: If that Maximo Alvarez you were able to see. can you please point him? A: Witness pointing to a person and when asked to stand and asked his name. In such a case. 1999. 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. Rule 130 of the Revised Rules of Court provides: "Sec. the trial court directed the prosecution to proceed with the presentation of the other witnesses. There is identity of interests between husband and wife. filed a motion5 to disqualify Esperanza from testifying against him pursuant to Rule 130 of the Revised Rules of Court on marital disqualification."4 In the course of Esperanza‘s direct testimony against petitioner. the trial court issued the questioned Order disqualifying Esperanza Alvarez from further testifying and deleting her testimony from the records. there is consequent danger of perjury. the Appellate Court rendered a Decision nullifying and setting aside the assailed Orders issued by the trial court. If one were to testify for or against the other. Pending resolution of the motion. Hence. I saw a man pouring the gasoline in the house of my sister (and witness pointing to the person of the accused inside the court room). the reason based upon such harmony and tranquility fails. if you know? A: He is my husband. this petition for review on certiorari.13 this Court held: . the marital disqualification rule has its own exceptions. will be nothing but ideals. Like the rule itself. the latter showed "uncontrolled emotions. can you state the name of that person." The reasons given for the rule are: 1.12 In Ordoño vs. and to prevent domestic disunion and unhappiness. the exceptions are backed by sound reasons which. sir. 22. Witness. 2. except in a civil case by one against the other. Section 22. 19933-MN. 2000. The policy of the law is to guard the security and confidences of private life. Q: If you can see him inside the Court room.7 The prosecution filed a motion for reconsideration but was denied in the other assailed Order dated October 19. and 4.7 COURT: You may proceed. neither the husband nor the wife may testify for or against the other without the consent of the affected spouse." prompting the tr ial judge to suspend the proceedings. can you identify him? A: Yes. the complaining witness in Criminal Case No. merely leave a void in the unhappy home. sir. Respondent filed an opposition6 to the motion.8 This prompted respondent Susan Ramirez. sir. through counsel. 19933-MN. Mrs. he gave his name as Maximo Alvarez. Maximo Alvarez. incidentally what was the source of that scent? A: When I stand by the window. outweigh those in support of the general rule. in such a situation. in the excepted cases. even at the risk of an occasional failure of justice. On September 2. or in a criminal case for a crime committ ed by one against the other or the latter‘s direct descendants or ascendants. 1999. petitioner. to file with the Court of Appeals a petition for certiorari9 with application for preliminary injunction and temporary restraining order. identity of interests disappears and the consequent danger of perjury based on that identity is non-existent.11 But like all other general rules.10 On May 31. both in civil actions between the spouses and in criminal cases for offenses committed by one against the other. 3. 1999. On June 30. The issue for our resolution is whether Esperanza Alvarez can testify against her husband in Criminal Case No. Disqualification by reason of marriage. xxx DIRECT EXAMINATION ATTY. Daquigan. the security and confidences of private life. which through their absence. which the law aims at protecting. – During their marriage. Where there is want of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other. ALCANTARA: xxx Q: When you were able to find the source. For instance. Likewise. Q: For the record.

vs. neither husband nor wife shall be a competent witness for or against the other in a criminal action or proceeding to which one or both shall be parties. is an act totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks to protect. 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. the conjugal relation. Costs against petitioner. cannot be afterwards divulged in testimony even though the other party be no longer living. they might have lead to the acquittal of the accused. The Supreme Court has held that in such a case. It underscored the fact that the marital and domestic relations between her and the accused-husband have become so strained that there is no more harmony. 1918 THE UNITED STATES. and in fact with the alleged intent of injuring the latter. the author says. One of the errors assigned is based upon the refusal of the trial judge to permit Susana Ezpeleta. 19933-MN. neither a husband nor a wife was a competent witness for or against the other in any judicial proceedings. her husband. the offense of arson attributed to petitioner. the Decision of the Court of Appeals is AFFIRMED. when an offense directly attacks." WHEREFORE. The reasons for this rule are thus stated in Underhill‘s work on Criminal Evidence (second edition) on page 346: At common law. No. Indeed. and whatever has come to the knowledge of either by means of the hallowed confidence which that relation inspires. Castañeda.8 "We think that the correct rule. or except in cases of crime committed by one against the other. respect and love by which virtues the conjugal relationship survives and flourishes. she is no longer his wife. Branch 72. the communication so made is in no sense confidential.R. civil or criminal. wherein the court said: ‗The rule that the injury must amount to a physical wrong u pon the person is too narrow. His act. plaintiff-appellee. a very serious injury would be done to the harmony and happiness of husband and wife and the confidence which should exist between them. unless it be with the consent of her husband. such a communication is made for the express purpose that it may be communicated after the death of the declarant to the authorities concerned in inquiring into the cause of his death. in section 337 [vol. knowing fully well that his wife was there. to testify as a witness on behalf of the defense concerning certain alleged dying declarations. or directly and vitally impairs. . and to relieve the husband or wife to whom such confidential communications might have been made from the obligation of revealing them to the prejudice of the other spouse. as embodied in the Information for arson filed against him. Malabon City. to which the other was a party. FISHER. there is no longer any reason to apply the Marital Disqualification Rule. SO ORDERED. and the rule that any offense remotely or indirectly affecting domestic harmony comes within the exception is too broad. G. DALMACEO ANTIPOLO. directly impairs the conjugal relation between him and his wife Esperanza. "it was the latter himself who gave rise to its necessity. the relationship between petitioner and his wife was already strained. In fact. to such a degree that if proven to the satisfaction of the court. This case does not fall with the text of the statute or the reason upon which it is based. . 35 ALR 133. The better rule is that. The criminal act complained of had the effect of directly and vitally impairing the conjugal relation. 220 Pac. 25 Okl. arguing that the disqualification which the fiscal evidently had in mind relates only to cases in which a husband or wife of one of the parties to a proceeding is called to testify. The witness was called to the stand and having stated that she is the widow of Fortunato Dinal was asked: ―On what occasion did your husband die?‖ To th is question the fiscal objected upon the following ground: I object to the testimony of this witness. RTC. . furthermore the marriage of Dinal to the witness having been dissolved by the death of her husband. the widow of the man whom the appellant is accused of having murdered. that. Thus. concerning the cause of his death. must have the right to offer the direct testimony of Esperanza.‘" Obviously. Obviously." It should be stressed that as shown by the records. As correctly observed by the Court of Appeals: "The act of private respondent in setting fire to the house of his sister-in-law Susan Ramirez. I]. 58 (1900) reads as follows: Except with the consent of both. In Greenleaf‘s classical work on evidence. The trial court convicted him of homicide and from that decision he was appealed. J. The purpose of section 58 is to protect accused persons against statements made in the confidence engendered by the marital relation. merely leave a void in the unhappy home. when a person at the point of death as a result of injuries he has suffered makes a statement regarding the manner in which he received those injuries. These propositions were rejected by the trial judge. L-13109 March 6. that the parties to the prosecution of a criminal case are the Government and the accused. because (as stated by this Court in Francisco14). the security and confidences of private life which the law aims to protect are nothing but ideals which through their absence. is that laid down in Cargil vs. peace or tranquility to be preserved. which may be adopted in this jurisdiction. it comes within the exception to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime committee (by) one against the other. If either were recognized as a competent witness against the other who was accused of crime. (People v. In such a situation. the general purport being that his injuries were due to fall and not to the acts imputed to the accused. . prior to the commission of the offense. they were separated de facto almost six months before the incident. and as he is dead and cannot grant that permission. Fortunato Dinal. . it bears emphasis that the State. 271 SCRA 504). . defendant-appellant. even against the objection of the accused. being interested in laying the truth before the courts so that the guilty may be punished and the innocent exonerated. At this point. identity is non-existent. as they purported to relate to the dying declarations of the deceased. and therefore not subject to any disqualification arising from the status of marriage. eradicates all the major aspects of marital life such as trust. . The trial court. and that being so I believe that she is not competent to testify under the rules and procedure in either civil or criminal cases. confidence. charged with the murder of one Fortunato Dinal. She has just testified that she is the widow of the deceased. 314.: The appellant was prosecuted in the Court of First Instance of the Province of Batangas. in Criminal Case No. Counsel for defendant insisted that the witness was competent. State. On the contrary. and the objection of the fiscal as to the testimony of the woman Ezpeleta was sustained. To this objection counsel took exception and made an offer to prove by the excluded witness the facts which he expected to establish by her testimony. 64. it follows that this witness is disqualified from testifying in this case in which her husband is the injured party. is ordered to allow Esperanza Alvarez to testify against petitioner. Section 58 of General Orders No. Concerning these facts it is sufficient at this time to say that some of them would be both material and relevant. in stating the reasons for the rule at c ommon law: The great object of the rule is to secure domestic happiness by placing the protecting seal of the law upon all confidential communications between husband and wife.

that during the conversation upon that subject the deceased insulted him by telling him that inasmuch as he could not pay the amount demanded he could send his wife to the office as she was the one treated.) Such dying declarations are admissible in favor of the defendant as well as against him. the defendant. 1924. that of March 20. and fearing that the deceased might secure some other weapon or receive assistance from the people in the adjoining room. On May 12. S. Shortly after his release from the hospital the defendant sought an interview with Doctor Sityar and went to the latter's office several times without finding him in.. on the contrary. that the deceased thereupon took a pocket-knife from the center drawer of his desk and attacked the defendant. She remained in the hospital until the 18th of the same month. and that she could then talk the matter over with the decease. making use of his knowledge of fencing. examined as to any communication made by one to the other during the marriage. Notwithstanding this it nevertheless appears that he again went there on March 28th to consult the deceased about some lung trouble from which he. be. to ask for an extension of the time of payment. 593. inflicted another wound upon him and as a consequence if the three wounds he died within a few minutes. The deceased made an effort to escape but the defendant pursued him and overtaking him in the hall outside the office. the nurse Cabañera. The declarations of a deceased person while in anticipation of certain impending death. without any preliminary quarrel between the two. Construed as a whole it is evident that it relates only to cases in which the testimony of a spouse is offered for or against the other in a proceeding to which the other is a party. with the accessory penalties prescribed by law and with the costs. Pablo G. the defendant then. vs. and where he was under the care of two other physicians. but after her release therefrom she was required to go several times to the clinic of Doctor Sityar at No. That being the case. as between husbands and wives. 1924. 530. The wife may testify for the state in cases of this character as to any other fact known to her.: This is an appeal from a decision of the Court of First Instance of the City of Manila finding the defendant Fausto V. he again stabbed him. CARLOS. Carlos guilty of the crime of murder and sentencing him to suffer life imprisonment. by decree of annulment or divorce. The declaration of the deceased made in extremes in such cases is a thing to be proven. The defendant states that on one of the visits. to any communication made by her by her husband during the marriage.. but this exception does not apply to a civil action or proceeding by one against the other. According to the evidence of the prosecution. the defendant. that this statement was made in such an insolent and contemptuous manner that the defendant became greatly incensed and remembering the outrage committed upon his wife. It can not be contended that the dying declaration testified to by the witness was a confidential communication made to her. In the afternoon of May 26th the defendant again went to the office of the deceased and found him there alone. to which the defendant answered that he did not believe he owed the doctor anything. nor a wife for or against her husband without his consent. this time in the back. The defendants made his escape but surrendered himself to the Constabulary at Malolos. 40 Escolta. We see no possible reason for excluding her . 190. On one of these occasions he was asked by an employee of the office. (U. without the consent of the other. Bulacan. in Mary Chiles Hospital. 58 is based.. (Mattox vs. 146 U. during the marriage or afterwards. The use of the word ―afterwards‖ in the phrase ―during the marriage or afterwards‖ was intended to cover cases in which a marriage has been dissolved otherwise than by death of one of the spouses – as..9 The same theory as that upon which section 58 of General Orders No. . and the rules of evidence. the court saying: On grounds of public policy the wife can not testify against her husband as to what came to her from him confidentially or by reason of the marriage relation. On these occasions she was accompanied by her husband. In the case of the State vs. underlies section 383. ―the wife was incompetent to testify even after the cessation of the marria ge relation. are admissible in a prosecution of the person charged with killing the declarant. The defendant admits that he killed the deceased but maintains that he did so in self-defense. if he had come to settle his account. S. on March 3.. . a new trial must be granted. plaintiff-appellee. Commonwealth (114 Ky. the judgment of the court below is hereby set aside and a new trial is granted at which the testimony of the witness Susana Ezpeleta will be admitted. vs. . L-22948 March 17. We are therefore of the opinion that the court below erred in excluding the testimony of the witness Susana Ezpeleta. succeeded in taking the knife away from the deceased and blinded by fury stabbed him first in the right side of the breast and then in the epigastric region. in the evening of the following day. suffering from some stomach trouble. J. attacked the deceased with a fan-knife and stabbed him twice. So ordered. G. OSTRAND. but this rule does not apply to a dying communication made by the husband to the wife on the trial of the one who killed him.‖ This contention was rejected. defendant-appellant. the testimony taken at the former hearing shall be considered. 1176). was suffering. performed a surgical operation upon the defendant's wife for appendicitis and certain other ailments. or to a criminal action or proceeding for a crime committed by one against the other. concerning the circumstances leading up to the death. are no longer applicable. It appears from the evidence that the victim of the alleged murder. Dr. Rep. the testimony of the widow of the deceased as to his dying declarations made to her was objected to upon the express ground that under the terms of the Kentucky Code. He was given some medical treatment and appears to have made at least one more visit to the clinic without revealing any special resentment. 13 Phil. the court said: The next bill is as to the competency of the widow of the deceased to prove his dying declarations. the accused was deprived of one of his essential rights.R. The costs of this appeal shall be de officio. entered the Philippine General Hospital where he remained until May 18. and that by reason of such exclusion. it was evidently made in the furtherance of justice for the express purpose that it should be testified to in the prosecution of the defendant. and this proof may be made by any competent witness who heard the statement. for instance. U. paragraph 3 of Act No.‖ and this doubt can arise only by a consideration of this phrase separately from the rest of the paragraph. . 1924. 596). Ryan (30 La. nor can either. At the new trial granted the accused. . the defendant. 1924.. 1925 THE PEOPLE OF THE PHILIPPINE ISLANDS. No. Gil. after the husband‘s death she is no longer his wife. and that while defendant was absent on this errand Doctor Sityar outraged the wife. For the reason stated. Sityar. which reads as follows: A husband cannot be examined for or against his wife without her consent. In the case of Arnett vs. The only doubt which can arise from a reading of this provision relates to the meaning of the words ―during the marriage or afterwards.) It has been expressly held in several jurisdictions in the United States that the widow of the deceased may testify regarding his dying declarations. He explains that he went to Doctor Sityar's office to protest against the amount of the fee charged by the doctor and.. he assumed a threatening attitude and challenged the deceased to go downstairs with him and there settle the matter. together with any additional evidence which may be offered on the part of the prosecution or the defense. cited by appellant in his brief. in any event. FAUSTO V. 140. that the defendant. The defendant further states that his wife informed him of the outrage shortly after leaving the clinic. endeavoring to force him out of the office. Doctor Sityar sent him out on an errand to buy some medicine. S. for the purpose of dressing the wounds caused by the operation. Ann. . While in the hospital her received a letter (Exhibit 5) from Doctor Sityar asking the immediate settlement of the account for the professional services rendered his wife.

without deciding. The question is radically different from that of the admissibility of testimony of a third party as to a conversation between a husband and wife overheard by the witness. viz. it was virtually repudiated in the Federal Supreme Court. par. — which is all that can be fairly asked for admissibility. We do not think this fact is sufficient proof. that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence) was never doubted until the appearance of the ill-starred majority opinion of Boyd vs. So ordered. par. If the defendant either by answer or otherwise had indicated his assent to the statements contained in the letter it might also have been admissible. case the United States Supreme Court adhered to its decision in the Weeks Case. Communication to a husband or wife is always receivable to show probable knowledge by the other (except where they are living apart or are not in good terms). 261. e.S. The letter was written by the wife of the defendant and if she had testified at the trial the letter might have been admissible to impeach her testimony. In this respect there can be no difference between an ordinary communication and one originally privileged. It is dated May 25. however. In discussing this point we can do not better than to quote Professor Wigmore: The foregoing doctrine (i.) In the Silverthorne Lumber Co. and the orthodox precedents recorded in the State courts (ante. to the effect that where a privileged communication from one spouse to another comes into the hands of a third party. (b) Then in Adams vs.C.. (28 R. (4 Wigmore on Evidence. but such is not the case here.. while it is not certain that the one will tell the other. par. though Wigmore cites no authority in support of his assertion. but with a condition. . under the decisions in the Weeks and Silverthorne cases. 2326). it is very evident that it fails to establish a case of self-defense and that. the fact that he had the letter in his possession is no indication of acquiescence or assent on his part. which has exercised unhealthy influence upon subsequent judicial opinion in many States. without collusion and voluntary disclosure on the part of either of the spouses. United States.) Such is the view of the majority of this court.L. but she was not put on the witness-stand and the letter was therefore not offered for that purpose. that the illegality of the search and seizure should first have been directly litigated and established by a motion. reverted to the original doctrine of the Boyd Case. This contention is based principally on the fact that one of the wounds received by the deceased showed a downward direction indicating that the deceased was sitting down when the wound was inflicted. As we have already intimated. 530 and authorities there cited.... Separate Opinions . United States. and while the probability is less upon some subjects than upon others. Testimony of that character is admissible on the ground that it relates to a conversation in which both spouses took part and on the further ground that where the defendant has the opportunity to answer a statement made to him by his spouse and fails to do so. for the return of the things seized..S. The direction of the wound would depend largely upon the manner in which the knife was held. United States (251 U. par. in reality. so that. The sentence appealed from is therefore modified by reducing the penalty to fourteen years.) The letter in question was obtained through a search for which no warrant appears to have been issued and counsel for the defendant cites the causes of Boyd and Boyd vs. the only question here to be determined is whether the defendant is guilty of murder or of simple homicide. Professor Wigmore states the rule as follows: For documents of communication coming into the possession of a third person. 2339. 2325. 385) as authority for the proposition that documents obtained by illegal searches of the defendant's effects are not admissible in evidence in a criminal case. 616) and Silverthorne Lumber Co.) This may possibly be good law. in Weeks vs. par. The court below found that the crime was committed with premeditation and therefore constituted murder.. par.. analogous to that already indicated for a client's communications (ante. The numerical weight of authority is. .. if they were obtained from the addressee by voluntary delivery.. they should still be privileged (for otherwise the privilege could by collusion be practically nullified for written communications). i. Counsel for the defendant argues vigorously that the letter was a privileged communication and therefore not admissible in evidence. United States (116 U. Express communication is always a proper mode of evidencing knowledge or belief. the privilege should cease. made before trial. for the return of the things seized.. (1 Wigmore. meantime receiving frequent disfavor in the State Courts (ante. (5 Wigmore on Evidence. that it prevails in this jurisdiction it is.. 2183) were expressly approved." The letter Exhibit L must. But assuming that it is true. in 1914 — moved this time. and Silverthorne vs. if Exhibit L is excluded. e. because. be excluded for reasons not discussed in the briefs. with the corresponding accessory penalties and with the costs against the appellant. . xxx xxx xxx The progress of this doctrine of Boyd vs. there is in our opinion not sufficient evidence in the record to show that the crime was premeditated. New York. 2nd ed. but if they were obtained surreptitiously or otherwise without the addressee's consent. whether legally or not. United States was as follows: (a) The Boyd Case remained unquestioned in its own Court for twenty years. The Attorney-General in support of the contrary view quotes Wigmore. the privilege is thereby extinguished and the communication. as follows: . however. inapplicable to the present case. This finding can only be sustained by taking into consideration Exhibit L. 1924. (c) Next. but as far as we can see it has little or nothing to do with the present case. 2183).. and then only. a distinction should obtain. The prosecution maintains that the crime was committed with alevosia. after another twenty years.10 The defendant's testimony as to the struggle described is in conflict with the evidence presented by the prosecution. 2184. two days before the commission of the crime and shows that the writer feared that the defendant contemplated resorting to physical violence in dealing with the deceased. the illegality would be noticed in the main trial and the evidence thus obtained would be excluded. id. made before trial. without aggravating or extenuating circumstances. eight months and one day of reclusion temporal. if otherwise competent. The letter is therefore nothing but pure hearsay and its admission in evidence violates the constitutional right of the defendant in a criminal case to be confronted with the witnesses for the prosecution and have the opportunity to cross-examine them. 2nd ed. The doctrine laid down in these cases has been followed by some of the State courts but has been severely criticized and does not appear to have been generally accepted. after such a motion. in 1885. in 1904. becomes admissible. a letter written to the defendant by his wife and siezed by the police in searching his effects on the day of his arrest. For the reasons stated we find the defendant guilty of simple homicide. still there is always some probability. his silence implies assent. . nevertheless. not by erroneous history. Here the illegality of the search and seizure was not "directly litigated and established by a motion. That cannot apply where the statement is contained in an unanswered letter. But assuming. but by misplaced sentimentality — the Federal Supreme Court.

in the following territory: Australia Saigon Java New Zealand India China Tasmania Sumatra Hongkong Siam and the Straits Settlements. BARTON. considering the act committed as murder.000. where they resided then.R. 1920. For these services and expenditures the plaintiff sought. he stayed at the waiting room. P. talking with a man about accounts. located on the Island of Leyte and known as the Lucio mine. I am of opinion that application must be made here of the doctrine laid down by this court in the case of United States vs. addressed a letter Exhibit B.. such circumstance may be taken into consideration as a qualifying factor in the offense of murder. after which the trial judge entered a judgment absolving the defendant corporation from four of the six causes of action set forth in the complaint and giving judgment for the plaintiff to recover of said defendant.. the authority contained in said Exhibit B was admittedly superseded by the authority expressed in a later letter. and that then the accused descended the staircase to escape away. G. All orders for said products are to be billed to you as follows: . Ltd. and that the nature of the wounds found on the epigastric region of the deceased and his back do not mean anything." I admit that none of the witnesses who testified in this case has seen the beginning of the aggression. so that they might retire together to Pasig. J. which shows that the accused consummated the crime with treachery. The plaintiff is a citizen of the United States. as damages for breach of contract.. though little as it was. leaning upon one of the screens of the door of a tailor shop a few feet from his office. he believes that there was not. as president and general manager of the defendant company. No orders for less than one thousand (1. As it supplies the principal basis of the action. resident in the City of Manila. 1924 JAMES D. and the deceased rush out stained with blood. according to the doctor who examined the wounds.563. and with costs. United States currency. Barton. he struck him with another mortal blow with the weapon he was carrying. 1920. inserts in his decision the testimony of the witness Lucio Javillonar as follows: The witness. and followed closely by the accused who then brandished a steel arm in the right hand. and further to secure a judicial pronouncement to the effect that the plaintiff is entitled to an extension of the terms of the sales agencies specified in the contract Exhibit A. with the qualifying circumstance of treachery.000) tons will be accepted except under special agreement with us. slightly inclined to the right. dispute or discussion of any kind. JAMES D. The court. both documentary and oral.500. Lucio Javillonar.. vs.. the sum of $202. the accused stabbed him on the right side of the chest. Philippine Islands. Philippine currency. CEBU. In deciding the question as to whether the act committed is murder.. A careful consideration of the testimony of Lucio Javillonar. United States currency. instead of entering. with the qualifying circumstance of treachery. in said third cause of action. These being the facts proven.80. he saw the screen of the door of the deceased's office suddenly open. October 1. while waiting for that man to go out. thereby inflicting a wound on the right nipple. to recover of the Leyte Asphalt & Mineral Oil Co. thereby inflicting a wound on the right nipple. that in view of the pitch of the voice in which the conversation was held between the deceased and his visitor. will show that. J. walking from one end to another. and that.11 VILLAMOR. 1921. As regard bituminous limestone mined from the Lucio property. that upon seeing the deceased and overtaking him. as set out in the judgment appealed from. in shipping to various parts of the world samples of the products of the defendant. (Exhibit A) CEBU. of said conversation. BARTON. wherein it was held that "Even though a deadly attack may be begun under conditions not exhibiting the feature of alevosia. because they could have been inflicted while the deceased was standing. and the cause was heard upon the proof. LTD. The defendant answered with a general denial. with legal interest from June 2. I am of opinion that the judgment appealed from must be affirmed. and in otherwise carrying on advertising work. defendant-appellant. however. May first. 385). equivalent to $405. seated or inclined. dissenting: His Honor. dated October 1. No. LEYTE ASPHALT & MINERAL OIL CO. at the same time that the deceased was falling to the ground and was being taken by him with the assistance of other persons from said place to a lancape (a sofa) where he died a few minutes later. as claimed by the Attorney-General. upon the first and fourth causes of action. while the defendant is a corporation organized under the law of the Philippine Islands with its principal office in the City of Cebu. Rizal. 1922. according to said eyewitness. one William Anderson. unable to say a word. For the foregoing. notwithstanding that the deceased was already wounded and about to fall to the floor. with the result that we are not now concerned with this phase of the case. 1921. that shortly thereafter. he rendered services to the defendant company in the way of advertising and demonstrating the products of the defendant and expended large sums of money in visiting various parts of the world for the purpose of carrying on said advertising and demonstrations. plaintiff-appellee. that having noticed that the deceased was busy in his office.. absolved the defendant from all liability on this cause of action and the plaintiff did not appeal. STREET. testified that he went to the office of the deceased some minutes before six o'clock in that evening in order to take him. Exhibit A.30. Besides.. and what he had heard. to recover the sum of $16. Esq. This document bears the approval of the board of directors of the defendant company and was formally accepted by the plaintiff. the judge who tried this case. Said company appears to be the owner by a valuable deposit of bituminous limestone and other asphalt products. to the plaintiff Barton. United States currency. On April 21. DEAR SIR: — You are hereby given the sole and exclusive sales agency for our bituminous limestone and other asphalt products of the Leyte Asphalt and Mineral Oil Company. Ltd. with the arms lowered and about to fall to the floor. From this judgment the defendant company appealed. the sum of $318. and in this sense I dissent from the majority opinion.563. but it positively appears from the testimony of the said witness Lucio Javillonar that. Baluyot (40 Phil. authorizing the latter to sell the products of the Lucio mine in the Commonwealth of Australia and New Zealand upon a scale of prices indicated in said letter. I. also in the United States of America until May 1. anyone of them could have caused the death of the deceased. the trial judge says that the principal ground of the prosecution for holding that the commission of the crime was attended by the qualifying circumstance of treachery is a mere inference from the testimony of Lucio Javillonar. as had previously been agreed upon between them. yet if the assault is continued and the crime consummated with alevosia. the deceased was with his arms lowered and about to fall to the floor when the accused stabbed him on the right side of the chest with the weapon he was carrying. any change of hard words.: This action was instituted in the Court of First Instance of the City of Manila by James D. Province of Cebu. it will be quoted in its entirety. Cebu Hotel City. In the third cause of action stated in the complaint the plaintiff alleges that during the life of the agency indicated in Exhibit B. 1920. nor could there have been. L-21237 March 22.

. the same commission on all sales made by you in Japan........ will say...) JAMES D.... advising hi that he might enter an order for six thousand tons of bituminous limestone to be loaded at Leyte not later than May 5........... and it is also stipulated that we shall not be required to ship orders of 5...... you are to have sole rights for this territory also for one year additional and should your sales in the second year reach or exceed ten thousand tons you are to have the option to renew the agreement for this territory on the same terms for an additional two years. as follows: In re your request for Japanese agency. replied. 1921. (Sgd. MCVEAN Upon careful perusal of the fourth paragraph from the end of this letter it is apparent that some negative word has been inadvertently omitted before "prepared. 1921.. or twenty thousand (20. of that city.... Should we make any collection in excess of the prices quoted.... whereby the latter was to act as the plaintiff's sales agent for bituminous limestone mined at the defendant's quarry in Leyte.. 1921.000) tons by May 1.000) tons in the year ending October 1..... All contracts taken with municipal governments will be subject to inspector before shipping.... Anderson.... Should your sales equal exceed ten thousand (10.) WM... the plaintiff had already made an agreement with Frank B. under date of November 27..000 tons except on 30 days notice and 10.. (Sgd.... the plaintiff requested the defendant company to give him a similar selling agency for Japan... It is understood that the purchasers of the products of the Lucio mine are to pay freight from the mine carriers to destination and are to be responsible for all freight. G... 1921." or "not prepared to load at that rate..) On February 5.. If your sales in the United States reach five thousand tons on or before May 1.....000) tons in the year ending October 1... It is understood and agreed that we agree to load all ships... A...." Very soon after the aforesaid contract became effective.000 tons each twentyfour hours after March 1.. Wm.... You are to have full authority to sell said product of the Lucio mine for any sum see fit in excess of the prices quoted above and such excess in price shall be your extra and additional profit and commission...) W.. 1920. Smith. that we are willing to give you. 1925... until February 12. of Sydney....... Upon an earlier voyage during the same year to Australia.. PALMER Secretary Approved by Board of Directors... of San Francisco....... 1922... on the same basis as your Australian sales. 1920. addressed a letter to the plaintiff. All contracts will be subject to delays caused by the acts of God.... by any authorized representative of such governments at whatever price may be contracted for by you and we agree to accept such contracts subject to draft attached to bill of lading in full payment of such shipment. 1921. and any sum charged to any of your customers or buyers in the aforesaid territory in excess of ten pesos (P10) per ton.. scale of prices to be mutually agreed upon between us. Ludvigsen & McCurdy.. By (Sgd. To this request the defendant company..... Meanwhile the plaintiff had embarked for San Francisco and upon arriving at that port he entered into an agreement with Ludvigsen & McCurdy. Later the same agreement was extended for the period of one year from January 1. therefore we have decided to leave this agency open for a time..... October 1. Said rebate to be due and payable when the gross sales have equalled or exceeded ten thousand (10. over which the parties hereto have no control.. 14 In 5. 10 with the understanding. providing said shipment has been accepted by their inspectors... boats or other carriers prompty and without delay and load not less than 1...... 1920... LTD. because some other people have given us assurances that they can handle our Japanese sales. The products of the other mines can be sold by you in the aforesaid territories under the same terms and conditions as the products of the Lucio mine..." so that the full expression should be "unless we should notify you specifically prior to that date that we are unprepared to load at that rate.. then in San Francisco.. through its president.000 ton lots ... Upon this letter the plaintiff immediately indorsed his acceptance...... then in that event the price of all shipments made during the above period shall be ten pesos (P10) per ton...12 Per ton In 1. C. P15 In 2. 12 In 10... ...... (Exhibit Q. BARTON Witness D... Rebates on lesser sales to apply as per above price list... LEYTE ASPHALT & MINERAL OIL CO. but we do not feel like giving you a regular agency for Japan until you can make some large sized sales there. we agree to remit same to your within ten (10) days of the date of such collections or payments. 1921.. unless we so notify you specifically prior to that date we are prepared to load at that rate. 1921...... steamers. whereby said firm was constituted a subagent and given the sole selling rights for the bituminous limestone products of the defendant company for the period of one year from November 11..... insurance and other charges. on terms stated in the letter Exhibit K... upon terms stated in the letter Exhibit G.. should the sales in the above territory equal or exceed ten thousand (10. The territory assigned to Ludvigsen & McCurdy included San Francisco and all territory in California north of said city.. ANDERSON President (Sgd. ANDERSON President Accepted.000 tons except on 60 days notice...... under the same terms and conditions as above stipulated.000 ton lots .. then this contract is to be continued automatically for an additional three years ending April 30.000 ton lots .000) tons in the twelve months period as hereinbefore described. shall be rebated to you... 1921..000 ton lots . however that.) WM. All contracts taken with responsible firms are to be under the same conditions as with municipal governments...

weather permitting. Exhibit X. addressed to himself. BB. but he added that the submanager was not personally able to place his approval on the contract as that was a matter beyond his authority. Mr. On March 5. and a further consignment of five thousand tons. 1921. It will be noted in connection with this letter of the plaintiff. to be delivered as soon after July 1.) To this letter the plaintiff in turn replied from Manila. and it was stated that "no orders can be entertained unless cash has been actually deposited with either the International Banking Corporation or the Chartered Bank of India. or more. he came in contact with one H. acknowledging the receipt of an order for five thousand tons of bituminous limestone to be consigned to John Chapman Co. as used in this letter. the entire payment of $16. With his activities in China we are not here concerned.. Smith (Exhibit L and M). to be signed by Hiwatari. We therefore now . 1921. containing the orders from Ludvigen & McCurdy. In the letter of May 5. questioning the right of the defendant to insist upon a cash deposit in Cebu prior to the filling of the orders. in addition to the intended consignment for San Francisco. and ten thousand tons. Anderson was in Manila and the two had an interview in the Manila Hotel. The different items conspiring the award which the trial judge gave in favor of the plaintiff are all based upon the orders given by Ludvigsen & McCurdy (Exhibit G). of these intended Australian consignments. While the plaintiff was in Tokio he procured the letter Exhibit W. owing to lack of capital. 1921. White. on or about May 6. Hiwatari were at no time submitted for inspection to any officer of the defendant company. The obvious explanation that occurs in connection with this is that the plaintiff did not then care to reveal the fact that the two orders had originated from his own subagents in San Francisco and Sydney. 1921. Australia and China. Frank B. and II. to the effect that the company was behind with construction and was not then able to handle big contracts. Smith. In the first of these letters. P. In the letter Exhibit H the plaintiff gives notice of an "additional" (?) order from H. except possibly the Exhibit G. about May 22. Hiwatari speaks of himself as if he had been appointed exclusive sales agent for the plaintiff in Japan. 1921. first shipment of a thousand tons to be as early after July 1 as possible. adequate facilities had not been provided by the company for filling large orders and suggested that the plaintiff had better hold up in the matter of taking orders. the customs report of weight. The plaintiff explains that the name White. of Tokio. Ingersoll addressed a note to the defendant company in Cebu in which he stated that he had been requested by the plaintiff to notify the defendant that the plaintiff had accepted an order from Hiwatari. for whom the shipments were really intended. which the plaintiff claims to have shown to Anderson in Manila on March. loading to commence on May 1. no destination for the shipment being given. to be loaded by March 5. and on March 2. which called unconditionally for only one thousand tons. (Exhibit FF. Frank B. It will be noted that the only written communications between the plaintiff and the defendant company in which the former gave notice of having any orders for the sale of bituminous limestone are the four letters Exhibit Y. by June 30. signed by himself. "on receipt of the cable from you." In a letter. but no document expressly appointing him such is in evidence. Japan. In this letter Hiwatari states. of Sydney. In another interview on the same Anderson definitely informed the plaintiff that the contracts which be claimed to have procured would not be filled. 1921. of March 15. The name Henry E. of May 16." (Exhibit Z. in the course of which the plaintiff informed Anderson of the San Francisco order. was based on an inference which he had erroneously drawn from the cable sent by Frank B. though imperfectly. by the plaintiff to his attorney. AA. and his intention was to have the second shipment consigned to Australia in response to Smith's order. for a minimum of ten thousand annually for a period of five years. and the name of Frank B. 1921. In the same letter thousand tons from F. This letter. Co. of Tokio. dated March 15. through a contract with Henry E. Hiwatari.. the plaintiff advises the defendant company to be prepared to ship five thousand tons of bituminous limestone. is used for the first time as the source of the intended consignments of the letters. 1921. 1921. and W. 1921. L.000 gold. for a minimum order of ten thousand tons of the stone annually for a period of five years. In this amended answer the name of Ludvigsen & McCurdy appears for the first time. approved by the Bank of Taiwan. Hiwatari informs the plaintiff that he had shown the contract. White. Three days later the plaintiff addressed a letter (Exhibit Y) to the defendant company in Cebu. Frank B. in which he notified the company to be prepared to ship five thousand tons of bituminous limestone to John Chapman Co. containing Hiwatari's order for one thousand tons of bituminous limestone. he would contract with the plaintiff for a minimum quantity of ten thousand additional tons. 25. Anderson wrote to him from Cebu. In the letter Exhibit X. of Manila.. 1921. White. Smith. in reply to your cable advising shipping date. To the plaintiff's letter of March 15. contains an order for one thousand tons of bituminous limestone from the quarries of the defendant company. Anderson thereupon said that. 1921. of San Francisco. The contents of the letter of May 5 seems to have been conveyed. Soon after writing the letter last above-mentioned.. In conclusion the plaintiff said "I have arranged for deposits to be made on these additional shipments if you will signify your ability to fulfill these orders on the dates mentioned. and to proceed at the rate of one thousand tons per day of each twenty-four hours. to be used within a year from September 1. Sydney. The plaintiff expressed surprise at this and told Anderson that he had not only the San Francisco order (which he says he exhibited to Anderson) but other orders for large quantities of bituminous limestone to be shipped to Australia and Shanghai. San Francisco. and it was stated that the consignee would be named later. the taking of the remainder being contingent upon future eventualities. White was indicated as the name of the person through whom this contract had been made. Smith. the plaintiff embarked for China and Japan. the plaintiff filed an amendment to his complaint in which he set out. and the further amount of five thousand tons of the same material to be consigned to Henry E. of San Francisco. endited by the plaintiff himself. in tabulated form. E. It will be noted that this communication did not truly reflect the contents of Hiwatari's letter. I will agree to transfer through the Bank of Taiwan. the first shipment of one thousand tons to be made as early after July 1 as possible. 1921. to be shipped to Brisbane. In the letter Exhibit BB dated May 17. Ingersoll. of Tokio. notifying me of date you will be ready to ship. and the appealed does not involve an order which came from Shanghai. of Manila. the plaintiff's attorney gives notice of the acceptance by plaintiff of an order from Hiwatari. Accordingly Hiwatari advised that he was intending to make further arrangements when the manager of the bank should return from Formosa. to be consigned to John Chapman. and also tonnage rate. In conclusion the plaintiff gave orders for shipment to Australia of five thousand tons. who appears to have been a suitable person for handling bituminous limestone for construction work in Japan. by Frank B. and by Hiwatari in Exhibit W. Exhibits G.) On March 12. 1921. and on May 17. for two lots of bituminous limestone of five thousand tons each. approved by the Bank of Taiwan. China. or purchases. Australia. that no mention was made of the names of the person. upon request of Hiwatari. to the Asia Banking Corporation. the orders which he claims to have received and upon which his letters of notification to the defendant company were based. or more." No name was mentioned as the purchaser. and in his letter of March 15 to the defendant. M. and a similar amount within thirty days later. Smith. but we note that in Tokio. 1921. 1921. to be subject to our order on delivery of documents covering bill of lading of shipments. as possible. Cebu. consignees to be named later. and that in this event the contract was to be automatically extended for an additional four years. 12.13 The plaintiff then returned to Manila. one for shipment not later than June 30. 1921. Smith and H. and the other by July 20. or firm. of Sydney. I will arrange in advance a confirmed or irrevocable letter of credit for the above amounts so that payment can be ordered by cable. and prepaid export tax receipt. about June 1. to the submanager of the Taiwan Bank who had given it as his opinion that he would be able to issue. had cabled the plaintiff an order for five thousand tons of bituminous limestone. it was stated that if the material should prove satisfactory after being thoroughly tested by the Paving Department of the City of Tokio. I. B. After the suit was brought. 1921. the assistant manager of the defendant company replied on March. the plaintiff advised the defendant company to be prepared to ship another five thousand tons of bituminous limestone. under date of March. a credit note for the contracted amount.

are sufficient to support the judgment rendered by the trial court. It was evidently intended as an argumentative presentation of the plaintiff's point of view in the litigation then pending. therefore. L. but these assurance rested upon no other basis than the financial responsibility of the plaintiff himself. even if admissible at all. 9 and 10 comprise correspondence which passed between the parties by mail or telegraph during the first part of the year 1921. We see no legitimate reason for rejecting this document. The Exhibit 2 is a letter dated June 25. although of slight probative value. and her error imputed to the court in admitting the same was not committed. and in admitting Exhibit E. comes to the hand of a third party. The original contract by which the plaintiff was appointed sales agent for a limited period of time in Australia and the United States contemplated that he should find reliable and solvent buyers who should be prepared to obligate themselves to take the quantity of bituminous limestone contracted for upon terms consistent with the contract. nevertheless that official had refrained from giving his approval to the order Exhibit W. for even supposing that the letter was within the privilege which protects communications between attorney and client. Frank B. consists of a carbon copy of a letter dated June 13. Australia and China. The first assignment of error in the appellant's brief is directed to the action of the trial judge in refusing to admit Exhibit 2. & McCurdy and from Frank B. With respect to the order from H. 1921. Exhibit E is a letter from Anderson to the plaintiff. Upon this the attorney for the defendant informed the court that he received the letter from the former attorneys of the defendant without explanation of the manner in which the document had come into their possession. These conditions were not met by the taking of these orders from the plaintiff's own subagents. however.who after all were merely the plaintiff's subagents. this privilege was lost when the letter came to the hands of the adverse party. that the position of the defendant company is indubitably sound in so far as it rest upon the contention that the plaintiff has not in fact found any bona fide purchasers ready and able to take the commodity contracted for upon terms compatible with the contract which is the basis of the action. C. and reaches the adversary. and it cannot be pretended that those orders represent sales to bona fide purchasers found by the plaintiff. in Cebu. as the plaintiff had no contract from any responsible purchaser other than his own subagents and the defendant company could no probably have filled the contracts even if they had been backed by the Bank of England. Given the circumstances surrounding these contracts as they were reported to the defendant company and the concealment by the plaintiff of the names of the authors of the orders. and this circumstance doubtless did not escape the discernment of the defendant's officers. L. 276-277. And it makes no difference how the adversary acquired possession. Hiwatari. While these exhibits perhaps shed some light upon the relations of the parties during the time this controversy was brewing. Ingersoll. Such at least turns out to have been the case.14 address ourselves to the question whether or not the orders contained in Exhibit G. In this connection the plaintiff points to the stipulation of the contract which provides that contracts with responsible parties are to be accepted "subject to draft attached to bill of lading in full payment of such shipment. offered by the defendant. there will be found ample assurance that deposits for the amount of each shipment would be made with a bank in Manila provided the defendant would indicated its ability to fill the orders. representing certain associates. In this connection Mr. It is stated in this letter that the output of the Lucio (quarry) during the coming year would probably be at the rate of about five tons for twenty-four hours. explaining fully how this carbon copy came into the possession of the defendant company. the company would be able to handle two thousand tons in twenty-four hours. and when it was offered in evidence by the attorney for the defendant the counsel for the plaintiff announced that he had no objection to the introduction of this carbon copy in evidence if counsel for the defendant would explain where this copy was secured. M. with the equipment then on hand. written by the plaintiff to his attorney. nevertheless it does not affirmatively appear that he had been in fact appointed to be such at the time he signed to order Exhibit W at the request of the plaintiff. We are of the opinion that this ruling was erroneous. Wigmore says: . That privilege was probably considered a highly important incident of the contract and it will be seen that the sale of five thousand tons which the plaintiff reported for shipment to San Francisco was precisely adjusted to the purpose of the extension of the contract for the United States for the period of an additional year. among other things. Much energy has been expended in the briefs upon his appeal over the contention whether the defendant was justified in laying down the condition mentioned in the letter of March 26. in which the defendant's assistant general manager undertakes to reply to the plaintiff's letter of March 29 proceeding. and W. Upon inspection of the plaintiff's letters (Exhibit Y and AA). on the ground that it was a privileged communication between client and attorney. in our opinion." What passed between the parties upon this point appears to have the character of mere diplomatic parrying. to but out Anderson's interest for a fixed sum. and although the submanager of the Bank of Taiwan had said something encouraging in respect to the matter. The authenticity of this city document is admitted. 7. or any one representing it. and the sales reported for shipment to Australia were likewise adjusted to the requirements for the extention of the contract in that territory. Exhibit 14. Esq." No further information was then given by the attorney for the defendant as to the manner in which the letter had come to his hands and the trial judge thereupon excluded the document. we propose to object to its admission on the ground that it is a confidential communication between client and lawyer. dated April 21. offered by the plaintiff. (4 R. Upon this the attorney for the plaintiff made this announcement: "We hereby give notice at this time that unless such an explanation is made. The law has placed its ban upon a broker's purchasing from his principal unless the latter with full knowledge of all the facts and circumstances acquiesces in such course. and its probative value is so slight. which was as if the plaintiff had bought for himself the commodity which he was authorized to sell to others. It clearly appears. that he was at that time a stranger to the contract of agency.) We think. Smith must. 8. Article 267 of the Code of Commerce declares that no agent shall purchase for himself or for another that which he has been ordered to sell. it is admissible in evidence. Exhibit 7. in connection with the subsequent notification thereof given by the plaintiff to the defendant. It may be assumed. 1921. that his profit from the San Francisco contract would have been at the rate of eigthy-five cents (gold) per ton. we observe that while he intimates that he had been promised the exclusive agency under the plaintiff for Japan. in which information is given concerning the property of the defendant company.. of Manila. The San Francisco order and the Australian orders are the same in legal effect as if they were orders signed by the plaintiff and drawn upon himself. It is therefore not shown affirmatively that this order proceeds from a responsible source. but that with the installation of a model cableway which was under contemplation. and Exhibit 9 in particular contains an offer from the plaintiff. A sale made by a broker to himself without the consent of the principal is ineffectual whether the broker has been guilty of fraudulent conduct or not. or more than three weeks after the action was instituted. therefore. and in which plaintiff states.. 9 and 10. 1920. containing admissions of the client. but when such a document. — the officers of the defendant company might justly have entertained the suspicion that the real and only person behind those contracts was the plaintiff himself. be at once excluded from consideration as emanating from persons who had been constituted mere agents of the plaintiff. the bearing of the matter upon the litigation before us is too remote to exert any definitive influence on the case. The subject-matter of this correspondence relates to efforts that were being made by Anderson to dispose of the controlling in the defendant corporation. The law protects the client from the effect of disclosures made by him to his attorney in the confidence of the legal relation. The transaction indicated in the orders from Ludvigsen. The trial court was not in error in our opinion in excluding these documents. that there was no error on the part of the trial court in excluding it. 8. that he did not expect to purchase the thousand tons of bituminous limestone referred to in his order without banking assistance. to the effect that no order would be entertained unless cash should be deposited with either the International Banking Corporation of the Chartered Bank of India. -. and even then the broker's action must be characterized by the utmost good faith. It will be observed that the contract set out at the beginning of this opinion contains provisions under which the period of the contract might be extended. 1921. which was offered in evidence by the defendant.

. is destructive of the attorney's privilege and constitutes and obstacle to attempts at friendly compromise. C. Cebu. 268. To emphasize this thought again. whether legally or illegally. 931. The plaintiff. The Japan order starts with the following sentence: "You can enter my order for 1. The answer is. J. and that as the defendant has breached its contract. 29 Phil. the basis of this action. in the second place. promulgated on December 22. (5 Wigmore on Evidence.) But the main point of the plaintiff which the majority decision misses entirely centers on the proposition that the orders were communicated by the plaintiff to the defendant. for example. The Supreme Court of Georgia in the case of Southern Railway Co.. L.) Prior to the filing of suit. it was held that communications made by a client to his attorney for the purpose of being communicated to others are not privileged if they have been so communicated. is that the plaintiff presented orders under circumstances which were a substantial compliance with the terms of the contract with the defendant. 1 . Briefly.15 The law provides subjective freedom for the client by assuring him of exemption from its processes of disclosure against himself or the attorney or their agents of communication." (Exhibit L). (10 R. 1994 denying the motion for reconsideration of its preceding disposition. section 2441. the decision of the majority appears to me to be defective in the following particulars: (1) It sets aside without good reason the fair findings of fact as made by the trial court and substitutes therefor other findings not warranted by the proof. spent considerable effort and used considerable money to advance the interests of the defendant and to secure orders for its products. Evid. island of Leyte. It is so ordered. 201). J. there is no intimation that Exhibit 14 was sent by the client to the lawyer for the purpose of being communicated to others. G. . A decision must be reached on the record as it is and not on a record as we would like to have it. it would be improper to extend its prohibition to third persons who obtain knowledge of the communications. and that a court will take no notice of how it was obtained. note. and its resolution of March 7. A. in the first place. Gross vs. defendant is now estopped by its conduct from raising new objections for rejection of the orders.. to be shipped at least within a week of respective dates: . and the defendant will be absolved from the complaint. Whether that exhibit be considered improperly rejected or not would not change the result one iota. and (3) it lay downs uncalled for rules which undermine the inviolability of a client's communications to his attorney. subject to the following terms and conditions: * * * "(Exhibit G). and that no bona fide purchasers were ready and able to take the commodity contracted for upon terms compatible with the contract. vs. and GENEROSO S. 108 Ga. REGALADO. Mathers..000 tons of 1. the only objection of the defendant was that the money should be deposited with either the International Banking Corporation or the Chartered Bank of India. R. (Mechem on Agency.) The majority decision incidentally takes up for consideration assignments of error 1 and 2 having to do with either the admission or the rejection by the trial court of certain exhibits. 2d ed. I shall endeavor to explain my point of view as briefly and clearly as possible. 254a. contains unfortunate expressions. 1997 PEOPLE OF THE PHILIPPINES.000 kilos each of bituminous limestone from the quarries of the Leyte Asphalt and Mineral Oil Co. The Ludvigsen & McCurdy order from San Francisco begins: "You can enter our order for 6. b. and since the privilege is a derogation from the general testimonial duty and should be strictly construed. and which insured to the defendant payment for its deliveries according to the price agreed upon. 163).) Our conclusion upon the entire record is that the judgment appealed from must be reversed. The Smith order from Australia contains the following: "It is therefore with great pleasure I confirm the booking of the following orders. S. is not within the protection of the privilege. Without encumbering the case with a long and tedious dissent. respondents. R. State vs. Australia and China.) Although the precedents are somewhat confusing. Since the means of preserving secrecy of communication are entirely in the client's hands. Consequently." (Exhibit W. The same rule ought to apply to one who surreptitiously reads or obtains possession of a document in original or copy. The answer is. 15 L. sec. sec.]. SANSAET. These orders were submitted to the president of the defendant company personally and later formally by writing. petitioner seeks the annulment of the resolution of respondent Sandiganbayan. nor will it form a collateral issue to try that question. The rule now announced by the Court that it makes no difference how the adversary acquired possession of the document. State. . the better doctrine is to the effect that when papers are offered in evidence a court will take no notice of how they were obtained. the defendant company never at any time raised any questioned as to whether the customers secured by plaintiff were "responsible firms" within the meaning of the contract. White ([1899]. [N. are confidential communications and must be excluded. JR.. (2) it fails to stress plaintiff's main argument. . I dissent and vote for an affirmance of the judgment. and never secured any information whatsoever as to their financial standing.. petitioner. properly or improperly. held that statements in a letter to a party's attorney handed by the latter to the opponent's attorney.. that the contract nowhere prohibits the plaintiff to secure subagents. is necessary for the maintenance of the privilege." (Exhibit Y. dissenting: An intensive scrutiny of every phase of this case leads me to the conclusion that the trial judge was correct in his findings of fact and in his decision.: Through the special civil action for certiorari at bar. But here.R. it must respond in damages. HONRADA. 2326. Accordingly. at $10 gold per ton. let me quote the reply of the defendant to the plaintiff when the defendant acknowledge receipts of the orders placed by the plaintiff. is a letter addressed by the plaintiff to his lawyer and probably merely shown to the counsel of the defendant during negotiations to seek a compromise. In the case of Uy Chico vs. A reasonable deduction. Exhibit 14. without special pronouncement as to costs of either instance. whether with or without the client's knowledge. 1 Greenl.000 tons of bituminous limestone as per sample submitted. . that the orders were so phrased as to make the persons making them personally responsible. o. This much. Union Life Assurance Society ([1915]. HONORABLE SANDIGANBAYAN. MANSUETO V. and even as obiter dicta. Separate Opinions MALCOLM. A. but not a whit more. f. what is said relative to these two assignments is absolutely unnecessary for a judgment. The plaintiff and the defendant deliberately entered into a contract. vs. Sansaet to be utilized as a state witness. Australia and China at Cebu. 1993. CEFERINO S. proceeding pursuant to this contract. Prior to the institution of the suit. 33 L. One who overhears the communication. PAREDES... 477. 115439-41 July 16. and that the only objection the defendant had related to the manner of payment. The letter reads: "In reply to same we have to advice you that no orders can be entertained unless cash has been actually deposited with either the International Banking Corporation or the Chartered Bank of India. Nos. a stipulation not found in the contract. Having in mind that the Court reverses the court a quo on the facts.. which denied petitioner's motion for the discharge of respondent Generoso S. The current running through the majority opinion is that the order emanated from subagents of the plaintiff. therefore.

On August 29. resolved to deny the desired discharge on this ratiocination: From the evidence adduced. in a resolution 16 dated February 24. 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. 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. one Teofilo Gelacio. 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. . 18 each of which named one of the three private respondents here as the accused therein. However. but said case after arraignment. respondent Sansaet was thereafter haled before the Tanodbayan for preliminary investigation on the charge that. in order to support his contention that the same would constitute double jeopardy. The proposal for the discharge of respondent Sansaet as a state witness was rejected by the Ombudsman on this evaluative legal position: . thus the filing of this case will be a case of double jeopardy for respondent herein . hence the proceedings were terminated. As stated at the outset. the documents which were later filed by respondent Sansaet in the preliminary investigation were prepared and falsified by his co-respondents in this case in the house of respondent Paredes. a motion was filed by the People on July 27. respondent had been charged already by the complainants before the Municipal Circuit Court of San Francisco. 4 Consequent to the foregoing judgment of the trial court. a motion to quash filed by the defense was later granted in respondent court's resolution of August 1. Atty. Moreover. respondent Sansaet was Paredes' counsel of record therein. Sansaet falls under the mantle of privileged communication between the lawyer and his client which may be objected to. if presented in the trial. certificate of arraignment and the recommendation of the Department of Justice are hereto attached for ready reference. 1985. the same were consolidated for joint trial in the Second Division of the Sandiganbayan. dated July 1. 1990. This was intended to pave the way for his discharge as a government witness in the consolidated cases. and is at present a Congressman. . as amended. It was submitted that all the requisites therefor. 1988. Unfortunately for the prosecution. 12 He claimed that respondent Honrada. Agusan del Sur. would be unwittingly induced by another to commit a crime. In a socalled Affidavit of Explanations and Rectifications. and a certification of Presiding Judge Ciriaco Ariño 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. the Ombudsman approved the filing of falsification charges against all the herein private respondents. and other confidential matter must have been . 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 in the aforementioned subdivision survey. In support of his claim. 13 These falsified documents were annexed to respondent Paredes' motion for reconsideration of the Tanodbayan resolution for the filing of a graft charge against him. in conspiracy with his herein corespondents. moved for reconsideration and. it is difficult to believe that a lawyer of his stature. before. respondent Paredes applied for a free patent over Lot No. he had violated Section 3(a) of Republic Act No. His application was approved and. Sansaet had control over the case theory and the evidence which the defense was going to present. were filed in the graft court. . In view of such relationship. . Withal. three criminal cases. As counsel for the accused in those criminal cases..) A criminal case was subsequently filed with the Sandiganbayan 10 charging respondent Paredes with a violation of Section 3 (a) of Republic Act No. however. The same records also represent that sometime in 1976. as in fact a motion therefor was filed by the prosecution pursuant to their agreement. Thus. he claimed that he did so upon the instigation and inducement of respondent Paredes. . he decided to file separate informations for falsification of public documents against each of the herein respondents. was ordered dismissed by the court upon recommendation of the Department of Justice. and transcripts of stenographic notes supposedly taken during the arraignment of Paredes on the perjury charge. as provided in Section 9. directed by the Deputy Minister of Justice to move for the dismissal of the case on the ground inter alia of prescription. the opposition was able to establish that client and lawyer relationship existed between Atty. respondent Sandiganbayan. Sansaet and Ceferino Paredes. Nonetheless. upon the subsequent complaint of the Sangguniang Bayan and the preliminary investigation conducted thereon. However. However. simulated and certified as true copies certain documents purporting to be a notice of arraignment. 14 Respondents filed their respective counter-affidavits. as counsel for his aforenamed co-respondent. Pertinently. an original certificate of title was issued in his favor for that lot which is situated in the poblacion of San Francisco. then Governor of the same province. respondent Sansaet served as counsel of Paredes in that civil case. 1991 11 and the case was dismissed on the ground of prescription. Rule 119 of the Rules of Court. 3019.16 The records show that during the dates material to this case. sent a letter to the Ombudsman seeking the investigation of the three respondents herein for falsification of public documents. 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. in the absence of deliberate intent to conspire. On January 23. For that purpose. 1993 for the discharge of respondent Sansaet as a state witness. 3097-A. 9 (Emphasis supplied. Copy of the dismissal order. during and after the period alleged in the information. there was no other direct evidence to prove the confabulated falsification of documents by respondents Honrada and Paredes. Respondent Paredes was successively the Provincial Attorney of Agusan del Sur. a taxpayer who had initiated the perjury and graft charges against respondent Paredes. were satisfied insofar as respondent Sansaet was concerned. 7 In this criminal case. in 1985. issued a resolution 8 recommending the criminal prosecution of respondent Paredes. The Ombudsman refused to reconsider that resolution 17 and. 6 On November 27. Pls-67 of the Rosario Public Land Subdivision Survey. pursuant to a free patent granted to him. . hewing to the theory of the attorney-client privilege adverted to by the Ombudsman and invoked by the two other private respondents in their opposition to the prosecution's motion. 3019. went to jail on detention in 1984 under the same set of facts and the same evidence . the Tanodbayan. an information for perjury 5 was filed against respondent Paredes in the Municipal Circuit Trial Court. Agusan del Sur. respondent Honrada was the Clerk of Court and Acting Stenographer of the First Municipal Circuit Trial Court. Jr. 1992. ostensibly to forestall any further controversy. The basic postulate was that. the testimony or confession of Atty. but Sansaet subsequently discarded and repudiated the submissions he had made in his counter-affidavit. 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 appear that the perjury case had been dismissed by the trial court after he had been arraigned therein. Sansaet. For the third time. Taking his explanation. because of its legal significance in this case. except for the eyewitness testimony of respondent Sansaet. the facts surrounding the case. 1985. as amended. To evade responsibility for his own participation in the scheme. Atty. San Francisco-Bunawan-Rosario in Agusan del Sur. we quote some of his allegations in that motion: . . . respondent Paredes was likewise represented by respondent Sansaet as counsel. the Provincial Fiscal was.

are not covered by the cloak of privileges ordinarily existing in reference to communications between attorney and client. than verbal statements being made to him by Paredes as to the fact and purpose of such falsification. as a consequence thereof. considering their past and existing relations as counsel and client and. did not pass upon . does not attach with regard to a crime which a client intends to commit thereafter or in the future and for purposes of which he seeks the lawyer's advice. and future crimes intended to be committed. therefore. as a particeps criminis. the testimony of Atty. 25 (Emphases supplied. the facts surrounding the case and other confidential matters must have been disclosed by respondent Paredes. would be one of the worst travesties in the rules of evidence and practice in the noble profession of law. Parenthetically. he is given the protection of a virtual confessional seal which the attorney-client privilege declares cannot be broken by the attorney without the client's consent. as his lawyer. 4. 24 Also. to believe that in the instant case it is dealing with a past crime. in confederacy with his present co-respondents. however. In the present cases. 22 In the American jurisdiction from which our present evidential rule was taken. as client. II On the foregoing premises. Paredes and Honrada concocted and foisted upon the authorities." without distinction or qualification. if not more.) 3. In other words. 19 Reconsideration of said resolution having been likewise denied. made by a party who committed it. having arrived at a contrary conclusion on the preceding issue. we now proceed to the consequential inquiry as to whether respondent Sansaet qualifies. the unbroken stream of judicial dicta is to the effect that communications between attorney and client having to do with the client's contemplated criminal acts. we will first sweep aside some distracting mental cobwebs in these cases. those crimes were necessarily committed in the past. or in aid or furtherance thereof. Furthermore. Paredes. in view of the purpose for which such falsified documents were prepared. Contrarily. without the latter's consent. is barred by the attorney-client privilege. therefore. For a clearer understanding of that evidential rule. later committed.17 disclosed by accused Paredes. insofar as the falsifications to be testified to in respondent court are concerned. by the client. and this may reasonably be expected since Paredes was the accused and Sansaet his counsel therein. however. 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. respondent Sandiganbayan ruled that due to the lawyer-client relationship which existed between herein respondents Paredes and Sansaet during the relevant periods. The Court reprobates the last assumption which is flawed by a somewhat inaccurate basis. either with the active or passive participation of Sansaet. 26 In fact. the documents which were later filed in the Tanodbayan by Sansaet and culminated in the criminal charges now pending in respondent Sandiganbayan. 23 Nor can it be pretended that during the entire process. the fact that Sansaet was called to witness the preparation of the falsified documents by Paredes and Honrada was as eloquent a communication. and that respondent Sansaet is set to testify on alleged criminal acts of respondents Paredes and Honrada that have already been committed and consummated. to accused Sansaet. 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. as his lawyer in his professional capacity. further. The same privileged confidentiality. Jr. were about to falsify. he is eligible for discharge to testify as a particeps criminis. Respondent court appears. 20 the controversy was elevated to this Court by the prosecution in an original action for the issuance of the extraordinary writ of certiorari against respondent Sandiganbayan. no word at all passed between Paredes and Sansaet on the subject matter of that criminal act. but which the attorney under certain circumstances may be bound to disclose at once in the interest of justice. Sansaet was himself a conspirator in the commission of that crime of falsification which he. as client. the testimony sought to be elicited from Sansate as state witness are the communications made to him by physical acts and/or accompanying words of Parades at the time he and Honrada. consulted as such. Accordingly. those communications are outside the pale of the attorney-client privilege. it must be for a lawful purpose or in furtherance of a lawful end." 21 The Court is of a contrary persuasion. there is no particular mode by which a confidential communication shall be made by a client to his attorney. To prevent a conniving counsel from revealing the genesis of a crime which was later committed pursuant to a conspiracy. It is well settled that in order that a communication between a lawyer and his client may be privileged. a distinction must be made between confidential communications relating to past crimes already committed. But for the application of the attorney-client privilege. to an attorney. 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. respondent court. or in the process of falsifying. Indeed. 2. 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. are privileged communications. for discharge from the criminal prosecution in order to testify for the State. it found "no reason to discuss it further since Atty. Having been made for purposes of a future offense. It is postulated that despite such complicity of Sansaet at the instance of Paredes in the criminal act for which the latter stands charged. if the client seeks his lawyer's advice with respect to a crime that the former has theretofore committed. Statements and communications regarding the commission of a crime already committed. however. As already stated. and (2) whether or not. that it was error for respondent Sandiganbayan to insist that such unlawful communications intended for an illegal purpose contrived by conspirators are nonetheless covered by the so-called mantle of privilege. 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. 17791-93 for falsification before respondent court. Corollarily. as the facts thereof and actuations of both respondents therein constitute an exception to the rule. Sansaet cannot be presented as a witness against accused Ceferino S. It is significant that the evidentiary rule on this point has always referred to "any communication. 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." 27 It is evident. 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. Sansaet on the facts surrounding the offense charged in the information is privileged. Clearly. the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. The principal issues on which the resolution of the petition at bar actually turns are therefore (1) whether or not the projected testimony of respondent Sansaet. as proposed state witness. Therefore. It may correctly be assumed that there was a confidential communication made by Paredes to Sansaet in connection with Criminal Cases Nos. because of the objection thereto of his conspiring client. 1. It is true that by now. The existence of an unlawful purpose prevents the privilege from attaching. to respondent Sansaet. The attorney-client privilege cannot apply in these cases.

the same penalty shall be imposed on all members of the conspiracy. It was in fact the testimony of Bermudez that clinched the case for the prosecution. Although he did not actually commit any of the stabbings." or "done or produced by two or more working together. 36 which we quote in extenso: Ocimar contends that in the case at bar Bermudez does not satisfy the conditions for the discharge of a co-accused to become a state witness." 31 not that he must be the least guilty 32 as is so often erroneously framed or submitted. Now. especially considering that they are charged for the same offense." or "shared by or affecting two or more. not to kill him for a promised fee. A reservation is raised over the fact that the three private respondents here stand charged in three separate informations. persons indicted for the same offense and tried together are called joint defendants. vs. Jr. there is no evidence that he has at any time been convicted of any offense involving moral turpitude. Ocimar. Rule XV of the Revised Rules of the Sandiganbayan allows consolidation in only one Division of cases arising from the same incident or series of incidents. 2. in People vs. but even the life of Capt. et al. All the perpetrators of the offense. (Emphasis ours. And by "most guilty" we mean the highest degree of culpability in terms of participation in the commission of the offense and not necessarily the severity of the penalty imposed. substantially corroborated in its material points as indicated by the trial court in its well-reasoned decision. Fifth. which was absent in the old provision. et al. The query would then be whether an accused who was held guilty by reason of membership in a conspiracy is eligible to be a state witness.. In other words. The trial court found that he was not the most guilty as. Sansaet stood as co-accused and he could be discharged as state witness. Cañeba. despite the presentation of four (4) other witnesses. After all. the purpose of the Rule can be achieved by consolidation of the cases as an alternative mode. Justice Davide. 1992. The word "joint" means "common to two or more. were bound in a conspiracy that made them equally guilty. Where the determinative facts and evidence have been submitted to this Court such that it is in a position to finally resolve the dispute. the Rules could have said so with facility. in Lugtu. resulting in three informations for the same acts of falsification. first dispose likewise of some ancillary questions requiring preludial clarification. nevertheless. As likewise submitted therefor by Mr. he was easily convinced by his two co-accused to open the account with the bank and which led to the commission of the crime. On appeal. his discharge to be a witness for the government is clearly warranted. He argues that no accused in a conspiracy can lawfully be discharged and utilized as a state witness. Accordingly. is untenable. It is believable that he persuaded the others to rob Paterno. It will be recalled that in its resolution of February 24. there having been a consolidation of the three cases. That resolution was affirmed but. For. Subsequent thereto. he does not appear to be the most guilty. the former provision of the Rules referring to the situation "(w)hen two or more persons are charged with the commission of a certain offense" was too broad and indefinite. Fourth. et al. I suppose the three cases were consolidated for joint trial since they were all raffled to the Second Division of the Sandiganbayan. Hence.18 this second aspect and the relief sought by the prosecution which are now submitted for our resolution in the petition at bar.. We have earlier held that Sansaet was a conspirator in the crime of falsification. 34 two conspirators charged with five others in three separate informations for multiple murder were discharged and used as state witnesses against their confederates.) . We agree with the observations of the Solicitor General that the rule on the discharge of an accused to be utilized as state witness clearly looks at his actual and individual participation in the commission of the crime. for all legal intents and purposes. it cannot be said then that Bermudez appears to be the most guilty. prior thereto.. Appellant asserts that since accused Bermudez was part of the conspiracy. 30 Had it been intended that all the accused should always be indicted in one and the same information. 33 we find this obiter: It appears that Apolonio Bagispas was the real mastermind. Justice Francisco along the same vein. he does not appear to be the most guilty. Section 2. for not one of them could satisfy the requisite of appearing not to be the most guilty. 29 Indeed. the same as if the different causes of action involved had originally been joined in a single action. the consolidated and joint trial has the effect of making the three accused co-accused or joint defendants. In criminal law. and should not be discharged as he did not appear to be not the most guilty. his testimony could be. or involving common questions of law and fact. instead of remanding it to the trial court. Ramirez. 28 2. be discharged even if indicted under a separate information. 35 one of the co-conspirators was discharged from the information charging him and two others with the crime of estafa. reportedly in order to obviate further controversy. being a poor and ignorant man. xxx xxx xxx Thus. the Court took into account the gravity or nature of the acts committed by the accused to be discharged compared to those of his co-accused. Court of Appeals. It is of no moment that he was charged separately from his co-accused. one information was filed against each of the three respondents here. he was only invited to a drinking party without having any prior knowledge of the plot to stage a highway robbery. However. which may or may not have been perpetrated in conspiracy with the other accused. The fact that respondent Sandiganbayan did not fully pass upon the query as to whether or not respondent Sansaet was qualified to be a state witness need not prevent this Court from resolving that issue as prayed for by petitioner. to wit: Assuming no substantive impediment exists to block Sansaet's discharge as state witness. this Court held that the finding of respondent appellate court that Lugtu was just as guilty as his co-accused. the Ombudsman recommended the filing of criminal charges for falsification of public documents against all the respondents herein. as indeed it was. 1. jewelry and other valuables. hence the word "joint" was added to indicate the identity of the charge and the fact that the accused are all together charged therewith substantially in the same manner in point of commission and time. there is absolute necessity for the testimony of Bermudez. While all the accused may be given the same penalty by reason of conspiracy. the several actions lost their separate identities and became a single action in which a single judgment is rendered. and not merely the fact that in law the same or equal penalty is imposable on all of them. it will be in the pursuance of the ends of justice and the expeditious administration thereof to resolve the case on the merits. it was a mistake to discharge Bagispas as a state witness." as "involving the united activity of two or more. This technicality was. Since Bermudez was not individually responsible for the killing committed on the occasion of the robbery except by reason of conspiracy. First. one of the requirements for a state witness is that he "does not appear to be the most guilty. While Section 9 of Rule 119 of the 1985 Rules of Criminal Procedure uses the word jointly. without his testimony. We shall. however. yet one may be considered least guilty if We take into account his degree of participation in the perpetration of the offense. in People vs. he can. he is equally guilty as the others. What the law prohibits is that the most guilty will be set free while his co-accused who are less guilty will be sent to jail. Eventually. including him. As the evidence reveals. et al. Second. none of them could positively identify the accused except Bermudez who was one of those who pulled the highway heist which resulted not only in the loss of cash. But even assuming that he later became part of the conspiracy. what was just somehow assumed but not explicity articulated found expression in People vs. We do not agree. no other direct evidence was available for the prosecution to prove the elements of the crime. Third. however. et al. Roxas. sufficiently explained away during the deliberations in this case by the following discussion thereof by Mr. and the rule is that since in a conspiracy the act of one is the act of all. To be sure. but it did not so require in consideration of the circumstances obtaining in the present case and the problems that may arise from amending the information.

through the Presidential Commission on Good Government against Eduardo M. ESCUETA. 1995. AVELINO V. as required by this Court in its resolution on December 5. SO ORDERED. We respectfully beg leave of the Honorable Supreme Court to manifest that We are amenable to setting aside the questioned Resolutions and to grant the prosecution's motion to discharge accused Generoso Sansaet as state witness. petitioner. are based on judicial experience distilled into a judgmental policy. 33 (Civil Case No. and the prosecution is faced with the formidable task of establishing the guilt of the two other co-respondents who steadfastly deny the charge and stoutly protest their innocence. There is thus no other direct evidence available for the prosecution of the case. such as the need for giving immunity to one of them in order that not all shall escape. THE SANDIGANBAYAN and THE REPUBLIC OF THE PHILIPPINES. The matters raised herein are an offshoot of the institution of the Complaint on July 31. that the other requisites for the discharge of respondent Sansaet as a state witness are present and should have been favorably appreciated by the Sandiganbayan. Alberto Juvilan of the Sangguniang Bayan of San Fernando. and so holds. LAZATIN and EDUARDO U. and not merely on the sole issue of the applicability of the attorneyclient privilege. upon which the workings of the contentious and adversarial system in the Philippine legal process are based — the sanctity of fiduciary duty in the client-lawyer relationship. et al. for the recovery of alleged ill-gotten wealth. hence there is absolute necessity for the testimony of Sansaet whose discharge is sought precisely for that purpose. with the confluence of all the requirements for the discharge of this respondent. It must be emphasized. therefore. ANGARA. the Rules provide for certain qualifying criteria which. the chairman and new members thereof 39 declared: 4) That the questioned Resolutions of December 22. after the retirement of two members of its Second Division 37 and the reconstitution thereof. III The Court is reasonably convinced. Amores. WHEREFORE. as one of the principal defendants. First Division. 108113 September 20. we have no recourse but to uphold and strengthen the mantle of protection accorded to the confidentiality that proceeds from the performance of the lawyer's duty to his client. who obtained the certification of non-arraignment from Judge Ariño. ROCO. Cojuangco. Atienza and concurred in by the undersigned and Associate Justice Augusto M. Agusan del Sur. which distinguishes it from any other calling. upon authority of the Honorable Supreme Court for the issuance of the proper Resolution to that effect within fifteen (15) days from notice thereof. His testimony can be substantially corroborated on its material points by reputable witnesses. 1996 TEODORO R. vs. 105938 September 20. the prosecution may propose but it is for the trial court. J. on this procedural aspect. Thus.: These case touch the very cornerstone of every State's judicial system. however. Municipal Circuit Trial Court in San Francisco. for the purposes required by the Rules. Said respondent has indicated his conformity thereto and has. it is the identity of the mens rea which is considered the predominant consideration and. No. This adjective device is based on other considerations. The fiduciary duty of a counsel and advocate is also what makes the law profession a unique position of trust and confidence. in the exercise of its sound discretion. VICTOR P. In an inversely anticlimactic Manifestation and Comment 38 dated June 14. This Court is not unaware of the doctrinal rule that. and Francisco Macalit. after going over the arguments submitted by the Solicitor-General and re-assessing Our position on the matter. Jr. 1994. In this instance. and RAUL S. entitled "Republic of the Philippines versus Eduardo Cojuangco. however. again. the writ of certiorari prayed for is hereby granted SETTING ASIDE the impunged resolutions and ORDERING that the present reliefs sought in these cases by petitioner be allowed and given due course by respondent Sandiganbayan. this is an affair of substantive law which should not be equated with the procedural rule on the discharge of particeps criminis. 1987 before the Sandiganbayan by the Republic of the Philippines. 0033). G. Agusan del Sur. For those reasons. REGALA. to determine the merits of the proposal and make the corresponding disposition. 1994 upon which the Petition for Certiorari filed by the prosecution are based. G. 1993 and March 7. CRUZ. Nistal. Ariño.R. Since the Revised Penal Code is based on the classical school of thought.. Respondent Sansaet is the only cooperative eyewitness to the actual commission of the falsification charged in the criminal cases pending before respondent court. THE HONORABLE SANDIGANBAYAN. both the Special Prosecutor and the Solicitor General strongly urge and propose that he be allowed to testify as a state witness." 1 . ROGELIO A. and the disposition taken on a holistic view of all the facts and issues herein discussed. which includes shares of stocks in the named corporations in PCGG Case No.19 The rule of equality in the penalty to be imposed upon conspirators found guilty of a criminal offense is based on the concurrence of criminal intent in their minds and translated into concerted physical action although of varying acts or degrees of depravity. as follows: Judge Ciriaco C. 5) That while the legal issues involved had been already discussed and passed upon by the Second Division in the aforesaid Resolution. warrants the imposition of the same penalty on the consequential theory that the act of one is thereby the act of all. vs. JOSE C. who participated in the resolution asking their Provincial Governor to file the appropriate case against respondent Paredes. HAYUDINI. EDGARDO J.R. VINLUAN. CONCEPCION. respondents. it does not appear that respondent Sansaet has at any time been convicted of any offense involving moral turpitude. ACTING THROUGH THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT. petitioners. Provincial Prosecutor and Deputized Ombudsman Prosecutor Claudio A. REPUBLIC OF THE PHILIPPINES. was penned by Associate Justice Narciso T. Also. respondents. identified in the basic petition with a digest of their prospective testimonies. private complainant who initiated the criminal cases through his letter-complaint. No. Teofilo Gelacio. that such discretion should have been exercised. detailed the substance of his projected testimony in his Affidavit of Explanation and Rectifications. This change of heart and direction respondent Sandiganbayan eventually assumed. 1996 PARAJA G. KAPUNAN. The facts of the case are undisputed. and the judicial experience that the candid admission of an accused regarding his participation is a guaranty that he will testify truthfully. On the final requirement of the Rules.

with the correlative and incidental services where its members acted as incorporators. 10 It is noteworthy that during said proceedings. i. and that will be their choice. Rogelio A. (b) submission of documents substantiating the lawyer-client relationship. Abello.3% of the total outstanding capital stock of UCPB as of 31 March 1987. the members of the law firm delivered to its client documents which substantiate the client's equity holdings.. Regala. to wit: (a) Letter to respondent PCGG of the counsel of respondent Roco dated May 24. schemed conspired and confederated with each other in setting up.20 Among the dependants named in the case are herein petitioners Teodoro Regala. In its "Comment. corporate books show the name Edgardo J. This ranks ACCRA Investments Corporation number 44 among the top 100 biggest stockholders of UCPB which has approximately 1. the members of the law firm acquire information relative to the assets of clients as well as their personal and business circumstances. Vinluan. 1992. petitioners and private respondent Raul Roco admit that they assisted in the organization and acquisition of the companies included in Civil Case No. It held: xxx xxx xxx ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted. being the wholly-owned investment arm. The PCGG is satisfied that defendant Roco has demonstrated his agency and that Roco has apparently identified his principal. for their refusal to comply with the conditions required by respondent PCGG. Vinluan and Eduardo U. and a blank deed of trust or assignment covering said shares. private respondent Roco did not refute petitioners' contention that he did actually not reveal the identity of the client involved in PCGG Case No. Cruz. 1984. Escueta and Paraja G.. and (c) the submission of the deeds of assignments petitioners executed in favor of its client covering their respective shareholdings.1 In the course of rendering professional and legal services to clients. Jose C. Sandiganbayan (173 SCRA 72). In the course of their dealings with their clients. 7 Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR OPPOSITION" dated October 8. the existence and identity of the client. which included. 1989 reiterating a previous request for reinvestigation by the PCGG in PCGG Case No. Jose C. Roco. Hayudini and Raul Roco of the Angara Concepcion Cruz Regala and Abello law offices (ACCRA) plotted. 1989 executed by private respondent Roco as Attachment to the letter aforestated in (a). 6 Petitioner Paraja Hayudini. 33. . Escueta. ACCRA lawyers acted as nomineesstockholders of the said corporations involved in sequestration proceedings. Teodoro D. Angara. namely: (a) the disclosure of the identity of its clients. Lazatin. stock certificates endorsed in blank representing the shares registered in the client's name.O. 3 Respondent PCGG based its exclusion of private respondent 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. Hayudini. This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. Eduardo U. Paraja G. Defendants Eduardo Cojuangco. 11 On March 18.4. Escueta. Angara. the financial and corporate framework and structures that led to the establishment of UCPB. filed a separate answer denying the allegations in the complaint implicating him in the alleged ill-gotten wealth. i. Rogelio A." respondent PCGG set the following conditions precedent for the exclusion of petitioners. ACCRA Investments Corporation. But until they do identify their clients. Angara as holding approximately 3.000 shareholders. 33 as party-defendant. and Kapunan Law Offices dated September 21. 33. Jr. COCOLIFE. Through insidious means and machinations. Vinluan.e. among others. through the use of the coconut levy funds. Bunag. On the other hand. Jose C. including the acquisition of San Miguel Corporation shares and its institutionalization through presidential directives of the coconut monopoly.744 shares as of February.4 Defendants-ACCRA lawyers' participation in the acts with which their codefendants are charged. 33. who all were then partners of the law firm Angara. herein questioned. considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. 0033. 33. 1991 in accordance with the requirements of Rule 15 of the Rules of Court. respondent Sandiganbayan promulgated the Resolution. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege. nor had he undertaken to reveal the identity of the client for whom he acted as nominee-stockholder. became the holder of approximately fifteen million shares representing roughly 3. denying the exclusion of petitioners in PCGG Case No. in the performance of these services. Teodoro Regala. respondent Presidential Commission on Good Government (hereinafter referred to as respondent PCGG) filed a "Motion to Admit Third Amended Complaint" and "Third Amended Complaint" which excluded private respondent Raul S. defendants-ACCRA lawyers.5 Defendant ACCRA-lawyer Avelino V. 5 In their answer to the Expanded Amended Complaint. This in turn has allowed the PCGG to exercise its power both under the rules of Agency and under Section 5 of E. they do not claim any proprietary interest in the said shares of stock. Concepcion. petitioners ACCRA lawyers alleged that: 4. Rogelio A. 1991 with Counter-Motion that respondent PCGG similarly grant the same treatment to them (exclusion as parties-defendants) as accorded private respondent Roco. Concepcion. Concepcion. 4 Petitioners were included in the Third Amended Complaint on the strength of the following allegations: 14. As members of the ACCRA Law Firm. Concepcion. (b) Affidavit dated March 8. Cruz was one of the incorporators in 1976 of Mermaid Marketing Corporation. and more than twenty other coconut levy funded corporations. Edgardo J. respondent PCGG presented supposed proof to substantiate compliance by private respondent Roco of the conditions precedent to warrant the latter's exclusion as party-defendant in PCGG Case No. their principal. 4. 2 On August 20. Roco from the complaint in PCGG Case No. Eduardo U. Avelino V. was in furtherance of legitimate lawyering. which was organized for legitimate business purposes not related to the allegations of the expanded Amended Complaint.400. and herein private respondent Raul S. 9 Consequently. Edgardo J. 4. 33. 8 The Counter-Motion for dropping petitioners from the complaint was duly set for hearing on October 18. and in keeping with the office practice. ACCRA. UNICOM. he has long ago transferred any material interest therein and therefore denies that the "shares" appearing in his name in Annex "A" of the expanded Amended Complaint are his assets. who had separated from ACCRA law firm. However. 1991. as such. the organization and acquisition of business associations and/or organizations. or simply. More specifically. CIC. 33. Cruz.e. became holders of shares of stock in the corporations listed under their respective names in Annex "A" of the expanded Amended Complaint as incorporating or acquiring stockholders only and. No. and (c) Letter of the Roco. Avelino V. 1988 to the respondent PCGG in behalf of private respondent Roco originally requesting the reinvestigation and/or re-examination of the evidence of the PCGG against Roco in its Complaint in PCGG Case No. as stockholders. ACCRA Law Firm performed legal services for its clients. 5. Regala and Cruz Law Offices (hereinafter referred to as the ACCRA Law Firm). which revelation could show the lack of cause against him. 14-A in relation to the Supreme Court's ruling in Republic v. COCOMARK. devised. Victor P.

they cannot compel the PCGG accorded the same treatment accorded to Roco. Petitioners further argue that even granting that such an undertaking has been assumed by private respondent Roco. 1991). Roco had revealed. No. 105938. he filed a separate petition for certiorari. Paraja G. Hayudini for the same treatment by the PCGG as accorded to Raul S. Respondent PCGG. 33 grants him a favorable treatment. docketed as G. to the strict application of the law of agency. 13 In his comment. The ACCRA lawyers cannot. II The Honorable Sandiganbayan committed grave abuse of discretion in not considering petitioners ACCRA lawyers and Mr. respondent PCGG is not after petitioners but the "bigger fish" as they say in street parlance. giving him an advantage over them who are in the same footing as partners in the ACCRA law firm. This ploy is quite clear from the PCGG's willingness to cut a deal with petitioners — the names of their clients in exchange for exclusion from the complaint. the disclosure does not constitute a substantial distinction as would make the classification reasonable under the equal protection clause. Roco as similarly situated and. alleging that the revelation of the identity of the client is not within the ambit of the lawyer-client confidentiality privilege. respondent Roco asseverates that respondent PCGG acted correctly in excluding him as party-defendant because he "(Roco) has not filed an Answer. PCGG had therefore the right to dismiss Civil Case No. This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege. and that will be their choice. 1991 resolution which was denied by respondent Sandiganbayan.21 The PCGG has apparently offered to the ACCRA lawyers the same conditions availed of by Roco. deserving of equal treatment. likewise. begrudge the PCGG for keeping them as party defendants. the Counter Motion dated October 8. their principal. refutes petitioners' contention. through its counsel. full disclosure in exchange for exclusion from these proceedings (par. Hayudini. assailing respondent Sandiganbayan's resolution on essentially the same grounds averred by petitioners in G. 12 ACCRA lawyers moved for a reconsideration of the above resolution but the same was denied by the respondent Sandiganbayan. Roco in violation of the equal protection clause. Neither can this Court. 2. the identities of the client(s) for whom he acted as nomineestockholder. Petitioner Paraja G. docketed as G. on the pretext of his alleged undertaking to divulge the identity of his client. 2. WHEREFORE. Thus. (Emphasis ours) Under the peculiar facts of this case. The statement of the Sandiganbayan in its questioned resolution dated March 18.e. No. considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. therefore. I It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to force them to disclose the identity of their clients. the attorney-client privilege includes the identity of the client(s). 1. or had undertaken to reveal. or had undertaken to reveal. Hence. The factual disclosures required by the PCGG are not limited to the identity of petitioners ACCRA lawyers' alleged client(s) but extend to other privileged Respondent Sandiganbayan sanctioned favoritism and undue preference in favor of Mr. Petitioners contend that the exclusion of respondent Roco as party-defendant in PCGG Case No. 108113. under the facts of this case. 1. the identities of the client(s). because they are evidence of nominee status. III The Honorable Sandiganbayan committed grave abuse of discretion in not holding that. filed his own motion for reconsideration of the March 18. the ACCRA lawyers filed the petition for certiorari. they are prohibited from revealing the identity of their principal under their sworn mandate and fiduciary duty as lawyers to uphold at all times the confidentiality of information obtained during such lawyer-client relationship. In the same vein. 105938. Roco had revealed. IV The Honorable Sandiganbayan committed grave abuse of discretion in not requiring that the dropping of party-defendants by the PCGG must be based on reasonable and just grounds and with due consideration to the constitutional right of petitioners ACCRA lawyers to the equal protection of the law. 7. Clearly. nor are the documents it required (deeds of assignment) protected.R. Roco is DENIED for lack of merit. 1992 is explicit: ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted. But until they do identify their clients. therefore. 1991 filed by the ACCRA lawyers and joined in by Atty. The ACCRA lawyers have preferred not to make the disclosures required by the PCGG.R. i. 15 Petitioners' contentions are impressed with merit. 0033 as to Roco 'without an order of court by filing a notice of dismissal'." 14 and he has undertaken to identify his principal.R. matters. invoking the following grounds: I The Honorable Sandiganbayan gravely abused its discretion in subjecting petitioners ACCRA lawyers who undisputably acted as lawyers in serving as nomineestockholders. the existence and identity of the client. the attorney-client privilege prohibits petitioners ACCRA lawyers from revealing the identity of their client(s) and the other information requested by the PCGG. to be . 3. Even assuming that Mr. There is absolutely no evidence that Mr. PCGG's COMMENT dated November 4. No.

This duty is explicitly mandated in Canon 17 of the Code of Professional Responsibility which provides that: Canon 17. concerning any fact the knowledge of which has been acquired in such capacity. Second. Eduardo Cojuangco who furnished all the monies to those subscription payments in corporations included in Annex "A" of the Third Amended Complaint. without the consent of the client and his employer. to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it. an attorney is more than a mere agent or servant. wherein lawyers' services may be compensated by honorarium or for hire." that "it was Mr. They really have no address on records. Such being the case. as currently worded provides: Sec. ONGKIKO: With the permission of this Hon. save by the rules of law. among those. or with a view to. the fiduciary duty to his client which is of a very delicate. Supreme Court held: There are few of the business relations of life involving a higher trust and confidence than that of attorney and client. 17 and mandato (contract of agency) wherein a friend on whom reliance could be placed makes a contract in his name. warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability. these blank deeds are important to our claim that some of the shares are actually being held by the nominees for the late President Marcos. Petitioners are being prosecuted solely on the basis of activities and services performed in the course of their duties as lawyers. 20. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land. 0110 of the Sandiganbayan.. through counsel Mario Ongkiko. as they called themselves. Inc. thus his powers are entirely different from and superior to those of an ordinary agent. which is the crucial year. this privilege takes off from the old Code of Civil Procedure enacted by the Philippine Commission on August 7. it was Mr. Quite obviously. ethical conduct and duties that breathe life into it. to preserve the secrets of his client." 28 Passed on into various provisions of the Rules of Court. stenographer. 20 Moreover. 1901. that these lawyers executed deeds of trust. or generally speaking. or his advice given thereon in the course of. and he may expect his lawyer to assert every such remedy or defense.22 In a closely related case. but gives up all that he gained by the contract to the person who requested him. Thus. without the consent of his client. Ongkiko: ATTY. — The following persons cannot testify as to matters learned in confidence in the following cases: xxx xxx An attorney cannot. that most of thes e corporations are really just paper corporations. This conception is entrenched and embodies centuries of established and stable tradition. their so-called client is Mr. Civil Case No. Section 383 of the Code specifically "forbids counsel. and it is the duty of the court to administer them in a corresponding spirit. they have no permits from the municipal authorities in Makati. vs. And not only that. 29 Further. I propose to establish through these ACCRA lawyers that. 18 But the lawyer-client relationship is more than that of the principal-agent and lessor-lessee. and to accept no compensation in connection with his client's business except from him or with his knowledge and approval. professional employment. exacting and confidential character. 24. Canon 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to client: The lawyers owes "entire devotion to the interest of the client. Eduardo Cojuangco who furnished all the monies to these subscription payments of these corporations who are now the petitioners in this case. entitled "Primavera Farms. 16 It would seem that petitioners are merely standing in for their clients as defendants in the complaint. manifested at the hearing on December 5. and to be watchful and industrious. Next. 27 In our jurisdiction. respondent PCGG has no valid cause of action as against petitioners and should exclude them from the Third Amended Complaint. Fourth. they also executed deeds of assignment and some of these assignments have also blank assignees. Eduardo Cojuangco. in the creation of lawyer-client relationship. one more honorably and faithfully discharged. some in blank. no fixed sets of directors at the time of incorporation and even up to 1986. A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him. xxx Disqualification by reason of privileged communication. II The nature of lawyer-client relationship is premised on the Roman Law concepts of locatio conductio operarum (contract of lease of services) where one person lets his services and another hires them without reference to the object of which the services are to be performed. 19 A lawyer is also as independent as the judge of the court. Eduardo Cojuangco. or clerk be examined. In modern day perception of the lawyer-client relationship. 25 In Stockton v. some in blank. there are rules. Again. 24 It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from any other professional in society. because he possesses special powers of trust and confidence reposed on him by his client. the attorney-client privilege. legally applied. Rule 138 of the Rules of Court states: Sec. that the ACCRA lawyers executed deeds of trust and deeds of assignment. Third. or governed by the sterner principles of morality and justice. Now. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be . and at every peril to himself. one. be examined as to any communication made by the client to him. Court." to the end that nothing be taken or be withheld from him. Fifth. Conjuangco and some are for Mr. Third Division. few more anxiously guarded by the law. No fear of judicial disfavor or public popularity should restrain him from the full discharge of his duty. 22 that is required by reason of necessity and public interest 23 based on the hypothesis that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice. without authority of his client to reveal any communication made by the client to him or his advice given thereon in the course of professional employment. et al. Presidential Commission on Good Government" respondent PCGG. We quote Atty. actually all their addresses now are care of Villareal Law Office. some in the name of particular persons. some in the name of a particular person. These are some of the principal things that we would ask of these nominees stockholders. Why do we say that? One: There are no really fixed sets of officers. Ford. petitioners' inclusion as co-defendants in the complaint is merely being used as leverage to compel them to name their clients and consequently to enable the PCGG to nail these clients. 26 the U. Marcos. an attorney also occupies what may be considered as a "quasi-judicial office" since he is in fact an officer of the Court 21 and exercises his judgment in the choice of courses of action to be taken favorable to his client. 1991 that the PCGG wanted to establish through the ACCRA that their "so called client is Mr. S. requiring a very high degree of fidelity and good faith. this is important to our claim that some of the shares are for Mr. It is the duty of an attorney: (e) to maintain inviolate the confidence. can an attorney's secretary.

an election official. The question now arises whether or not this duty may be asserted in refusing to disclose the name of petitioners' client(s) in the case at bar. a client's identity should not be shrouded in mystery 30 Under this premise. The Hodge case involved federal grand jury proceedings inquiring into the activities of the "Sandino Gang. Joe Sandino. In furtherance of this policy. As a matter of public policy. The lawyer was cited for contempt for her refusal to reveal his client's identity before a grand jury. Under the facts and circumstances obtaining in the instant case. The threat this represents against another sacrosanct individual right.S. then the flow of information would be curtailed thereby rendering the right practically nugatory. violation of law or any manner of fraud or chicanery. protected as confidential communications. in some instances. Plaintiff brought action both against defendant corporation and the owner of the second cab. the peculiar facts and circumstances of Neugass v. It necessarily follows that in order to attain effective representation. prior to the institution of legal action. "A party suing or sued is entitled to know who his opponent is. law partners. much less does it demand of him for any client. In connection with a tax investigation in November of 1973. The lawyers refused to divulge the names. The court said: That his employment came about through the fact that the insurance company had hired him to defend its policyholders seems immaterial. The state supreme court held that the reports were clearly made to the lawyer in his professional capacity. In Ex-Parte Enzor. identified in the information only as John Doe. 279 F. Encouraging full disclosure to a lawyer by one seeking legal services opens the door to a whole spectrum of legal options which would otherwise be circumscribed by limited information engendered by a fear of disclosure. The attorney-client privilege does not attach until there is a client. and under the exceptions described above. whose owner was unknown.e. the rule also reflects federal law. the plaintiff. owned by respondent corporation. Terminal Cab Corporation. know his adversary. the privilege begins to exist only after the attorney-client relationship has been established. to either opt to stay away from the judicial system or to lose the right to counsel. v. his identity is privileged. 33 Notwithstanding these considerations. the general rule is however qualified by some important exceptions. the apprehension of compelled disclosure from the legal advisors must be removed. 35 involved the same exception. In her testimony. held: A client's identity and the nature of that client's fee arrangements may be privileged where the person invoking the privilege can show that a strong probability exists that disclosure of such information would implicate that client in the very criminal activity for which legal advice was sought Baird v. "In order to promote freedom of consultation of legal advisors by clients. the fact was somehow revealed that the lawyer came to know the name of the owner of the second cab when a man. and vice versa. the privilege generally pertains to the subject matter of the relationship. 2291. Considerations favoring confidentially in lawyer-client relationships are many and serve several constitutional and policy concerns. Koerner. supra sec. the state supreme court held that under the circumstances of the case. that client identity is privileged in those instances where a strong probability exists that the disclosure of the client's identity would implicate the client in the very criminal activity for which the lawyer's legal advice was obtained. came to him and reported that he was involved in a car accident. In the constitutional sphere. the privilege gives flesh to one of the most sacrosanct rights available to the accused. An effective lawyer-client relationship is largely dependent upon the degree of confidence which exists between lawyer and client which in turn requires a situation which encourages a dynamic and fruitful exchange and flow of information.23 performed within and not without the bounds of the law. the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. Finally. He must obey his own conscience and not that of his client." a gang involved in the illegal importation of drugs in the United States. the attorney revealed that she had advised her client to count the votes correctly. even the name of the client was privileged. upholding non-disclosure under the facts and circumstances of the case. the answer must be in the affirmative. i. Neugass. Second. Wigmore. Appellants contend that the Baird exception applies to this case." 32 He cannot be obliged to grope in the dark against unknown forces. 1) Client identity is privileged where a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice. First. 31 The reasons advanced for the general rule are well established. 36 2) Where disclosure would open the client to civil liability. The attorney is such cases is clearly the attorney for the policyholder when the policyholder goes to him to report an occurrence contemplating that it would be used in an action or claim against him. 2d at 680. suffered injury when the taxicab she was riding. the law must prohibit such disclosure except on the client's consent. the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of this client. 34 a state supreme court reversed a lower court order requiring a lawyer to divulge the name of her client on the ground that the subject matter of the relationship was so closely related to the issue of the client's identity that the privilege actually attached to both. in exceptional cases. Reversing the lower court's contempt orders. bribed." 8 J. the right to counsel. The office of attorney does not permit. If the price of disclosure is too high. as a general rule. 37 prompted the New York Supreme Court to allow a lawyer's claim to the effect that he could not reveal the name of his client because this would expose the latter to civil litigation. U . the client's identity and the nature of his fee arrangements are. the right to be presumed innocent is at once self-evident. a client of the insurance company. hence. the IRS issued summons to Hodge and Zweig. It turned out that when the attorney of defendant corporation appeared on preliminary examination. the unidentified client. Third. in fact. If a client were made to choose between legal representation without effective communication and disclosure and legal representation with all his secrets revealed then he might be compelled. due process considerations require that the opposing party should. the lawyer must invoke the privilege not as a matter of option but as a matter of duty and professional responsibility. requiring them to produce documents and information regarding payment received by Sandino on behalf of any other person. Hodge and Zweig. In the said case. at 545. represented key witnesses and suspects including the leader of the gang. 38 . For instance. In Enzor. The Ninth Circuit of the United States Court of Appeals. but averred that she could not remember whether her client had been. It was apparent under the circumstances that the man was the owner of the second cab. While in Baird Owe enunciated this rule as a matter of California law. The respondents. The Baird exception is entirely consonant with the principal policy behind the attorney-client privilege. informed his attorney in confidence that he had been offered a bribe to violate election laws or that he had accepted a bribe to that end. or if it amounts to self incrimination. collided with a second taxicab.

since such revelation would otherwise result in disclosure of the entire transaction. information relating to the identity of a client may fall within the ambit of the privilege when the client's name itself has an independent significance. the client's name is privileged. . which is privileged information. 42 a lawyer was consulted by the accountants and the lawyer of certain undisclosed taxpayers regarding steps to be taken to place the undisclosed taxpayers in a favorable position in case criminal charges were brought against them by the U. In Baird vs. 43 Apart from these principal exceptions. that the name and address of the owner of the second cab came to the attorney in this case as a confidential communication. clearly reveal that the instant case falls under at least two exceptions to the general rule. but that. The lawyer refused and brought the question to the State Supreme Court. Maryland. and with no government audit or investigation into that client's income tax liability pending. . . by revealing the client's name. protects the subject matter or the substance (without which there would be not attorney-client relationship). Certainly the payment and the feeling of guilt are the reasons the attorney here involved was employed — to advise his clients what. 46 The circumstances involving the engagement of lawyers in the case at bench. relates to a matter so connected with the employment as attorney or counsel as to afford presumption that it was the ground of the address by the client. therefore. Baird refused on the ground that he did not know their names. The names of the clients are useful to the government for but one purpose — to ascertain which taxpayers think they were delinquent. and declined to name the attorney and accountants because this constituted privileged communication. and the submission of the deeds of assignment petitioners executed in favor of their clients covering their respective shareholdings. which had been previously assessed as the tax due. framework and set-up of the corporations in question. because the privilege. The link between the alleged criminal offense and the legal advice or legal service sought was duly establishes in the case at bar. From these conditions. a lawyer could not be forced to reveal the names of clients who employed him to pay sums of money to the government voluntarily in settlement of undetermined income taxes. And whenever the communication made. the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime. The objections on which the court reserved decision are sustained. The IRS demanded that Baird identify the lawyers. he knew that they were interested in certain transactions. We feel sure that under such conditions no case has ever gone to the length of compelling an attorney. so that it may check the records for that one year or several years. such that disclosure would then reveal client confidences. A petition was filed for the enforcement of the IRS summons.S. should be done. accountants. For example. The purpose of the court's request was to determine whether the unnamed persons as interested parties were connected with the purchase of properties involved in the action. Upholding the lawyer's refusal to divulge the names of his clients the court held: If it can compel the witness to state. but the nature of the transactions to which it related. Baird then sent a check for $12.706. in their capacity as lawyers. as the result of communications made to him in the course of such employment as such attorney. Here money was received by the government. It appeared that the taxpayers' returns of previous years were probably incorrect and the taxes understated. or to any other matter proper for such advice or aid. but without naming his clients. Subsequently. The voluntary nature of the payment indicates a belief by the taxpayers that more taxes or interest or penalties are due than the sum previously paid. such testimony by the witness would compel him to disclose not only that he was attorney for certain people.85 to the IRS in Baltimore. 40 the lawyer involved was required by a lower court to disclose whether he represented certain clients in a certain transaction. regarding the financial and corporate structure. unsued on. The court emphasized the exception that a client's name is privileged when so much has been revealed concerning the legal services rendered that the disclosure of the client's identity exposes him to possible investigation and sanction by government agencies. there exist other situations which could qualify as exceptions to the general rule. the aforementioned deeds of assignment covering their client's shareholdings.24 xxx xxx xxx All communications made by a client to his counsel. if any. . the content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal assistance. for the purpose of professional advice or assistance. submission of documents substantiating the lawyer-client relationship. The Ninth Circuit Court of Appeals held that. 41 3) Where the government's lawyers have no case against an attorney's client unless. and another amount of money representing his fee for the advice given. As already suggested. But it may well be the link that could form the chain of testimony necessary to convict an individual of a federal crime. . 706. 39 In the case of Matter of Shawmut Mining Company. The key lies in the three specific conditions laid down by the PCGG which constitutes petitioners' ticket to non-prosecution should they accede thereto: (a) (b) (c) the disclosure of the identity of its clients. The Court held: The facts of the instant case bring it squarely within that exception to the general rule. by no less than the PCGG itself. Internal Revenue Service (IRS). 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. as directed by the order appealed from. and other clients involved. though whether it is criminal guilt is undisclosed. No investigation was then being undertaken by the IRS of the taxpayers. Korner. particularly the third. nor is the present action pending against him as service of the summons on him has not been effected. paid by persons who thereby admitted they had not paid a sufficient amount in income taxes some one or more years in the past. under the circumstances. it has made progress in establishing by such evidence their version of the litigation. the attorney of the taxpayers delivered to Baird the sum of $12. . and his address cannot be disclosed on that theory. 45 Summarizing these exceptions. It appears . . His client is not seeking to use the courts. In turn. at the instance of a hostile litigant.85. petitioners gave their professional advice in the form of. that he represented certain persons in the purchase or sale of these mines. whether they relate to a suit pending or contemplated. we can readily deduce that the clients indeed consulted the petitioners. 44 Moreover. then it is privileged from disclosure. with a note explaining the payment. First. among others. It indicates a feeling of guilt for nonpayment of taxes. to disclose not only his retainer. For Baird's repeated refusal to name his clients he was found guilty of civil contempt. as stated earlier. are privileged. . The clients themselves were unsure about whether or not they violated tax laws and sought advice from Baird on the hypothetical possibility that they had. when such information could be made the basis of a suit against his client. disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case.

including confidentiality. under the third main exception. applicable to the instant case. exists." 49 "Communications made to an attorney in the course of any personal employment. which clearly falls within the privilege. 58 ". i. The logical nexus between name and nature of transaction is so intimate in this case the it would be difficult to simply dissociate one from the other. While the client found a new lawyer during the interregnum. But that is not all. but the punctilio of an honor the most sensitive.. Salmon 56 famously attributed to Justice Benjamin Cardozo that "Not honesty alone. v. after all.. apprehension of compelled disclosure from attorneys must be eliminated. then it would expose the lawyers themselves to possible litigation by their clients in view of the strict fiduciary responsibility imposed on them in the exercise of their duties." 50 Where the communicated information. In this sense. a contingent fee lawyer was fired shortly before the end of completion of his work." the US Court found that the lawyer involved was fired for cause. diligence as well as the responsibility to keep clients informed and protect their rights to make decisions have been zealously sustained. But what other gives such scope to realize the spontaneous energy of one's soul? In what other does one plunge so deep in the stream of life — so share its passions its battles. but extends even after the termination of the relationship. such retainer is obviously protected by the privilege. wherein as in a magic mirror. however. not yet in the hands of the prosecution. is an exacting goddess. not only in our lives.. then the client's identity is so inextricably linked to the subject matter itself that it falls within the protection. and sought payment quantum meruit of work done.e. the alleged accumulation of ill-gotten wealth in the aforementioned corporations. . its despair. in the words of Oliver Wendell Holmes. i. but the lives of all men that have been. 57 Such are the unrelenting duties required by lawyers vis-a-vis their clients because the law. 54 the US Second District Court rejected the plea of the petitioner law firm that it breached its fiduciary duty to its client by helping the latter's former agent in closing a deal for the agent's benefit only after its client hesitated in proceeding with the transaction. . This exception has likewise been sustained in In re Grand Jury Proceedings 51 and Tillotson v. The second case falls within the exception because whether or not the act for which the client sought advice turns out to be illegal. found that the lawyer was fired for cause after he sought to pressure his client into signing a new fee agreement while settlement negotiations were at a critical stage. so extolled by Justice Holmes in this wise: Every calling is great when greatly pursued. we who are here know that she is a mistress only to be won with sustained and lonely passion — only to be won by straining all the faculties by which man is likened to God.25 There is no question that the preparation of the aforestated documents was part and parcel of petitioners' legal service to their clients. When I think on this majestic theme my eyes dazzle. is then the standard of behavior. where none otherwise exists. which might lead to possible action against him. The reason for the first rule is that it is not within the professional character of a lawyer to give advice on the commission of a crime. . demanding of her votaries in intellectual and moral discipline. In Matter of Shawmut Mining Co. We have no choice but to uphold petitioners' right not to reveal the identity of their clients under pain of the breach of fiduciary duty owing to their clients. Scheller 55 requiring strict obligation of lawyers vis-a-vis clients. it constituted an integral part of their duties as lawyers.e.A. when such information could be made the basis of a suit against his client. no less. both as witness and actor? . therefore. crime. at the instance of a hostile litigant. Barnhart. It is the link. The utmost zeal given by Courts to the protection of the lawyer-client confidentiality privilege and lawyer's loyalty to his client is evident in the duration of the protection. seeking advice about how to go around the law for the purpose of committing illegal activities and a case where a client thinks he might have previously committed something illegal and consults his attorney about it. and found in favor of the client. thus deserved no attorney's fees at all. Furthermore." 47 An important distinction must be made between a case where a client takes on the services of an attorney for illicit purposes. "that would inevitably form the chain of testimony necessary to convict the (client) of a . If we were to sustain respondent PCGG that the lawyer-client confidential privilege under the circumstances obtaining here does not cover the identity of the client." The Court. we see reflected. The uberrimei fidei relationship between a lawyer and his client therefore imposes a strict liability for negligence on the former. Tweed. a communication which is clearly and distinctly privileged. When the nature of the transaction would be revealed by disclosure of an attorney's retainer. would suggest possible criminal activity but there would be not much in the information known to the prosecution which would sustain a charge except that revealing the name of the client would open up other privileged information which would substantiate the prosecution's suspicions. Scarola. The first case clearly does not fall within the privilege because the same cannot be invoked for purposes illegal. have a legitimate fear that identifying their clients would implicate them in the very activity for which legal advice had been sought. The Baird exception. Reiterating the principle of fiduciary duty of lawyers to clients in Meinhard v. is consonant with the principal policy behind the privilege. Hadley and McCloy v. the appellate court therein stated that "under such conditions no case has ever yet gone to the length of compelling an attorney. because the privilege cannot be invoked or used as a shield for an illegal act. . that for the purpose of promoting freedom of consultation of legal advisors by clients. 53 It follows that petitioner attorneys in the instant case owe their client(s) a duty and an obligation not to disclose the latter's identity which in turn requires them to invoke the privilege. The ethical duties owing to the client. because the facts of the instant case clearly fall within recognized exceptions to the rule that the client's name is not privileged information. If we are to speak of the law as our mistress. and which may be supposed to be drawn out in consequence of the relation in which the parties stand to each other. as in the first example. while the prosecution may not have a case against the client in the second example and cannot use the attorney client relationship to build up a case against the latter. the latter's case should be built upon evidence painstakingly gathered by them from their own sources and not from compelled testimony requiring them to reveal the name of their clients. information which unavoidably reveals much about the nature of the transaction which may or may not be illegal. 48 The reason for the second has been stated in the cases above discussed and are founded on the same policy grounds for which the attorney-client privilege. Petitioners. The court. What a subject is this in which we are united — this abstraction called the Law. . A lawyer cannot reveal such communication without exposing himself to charges of violating a principle which forms the bulwark of the entire attorney-client relationship. the name is as much "communication" as information revealed directly about the transaction in question itself. 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 which we cannot and will not countenance. There are. revelation of the client's name would obviously provide the necessary link for the prosecution to build its case. Boon. in the words of Baird. its triumphs. Boughner. events forced the client to settle for less than what was originally offered. to disclose not only his retainer. which the lawyers are sworn to uphold. thus causing no harm to its client. but the nature of the transactions to which it related. The Court instead ruled that breaches of a fiduciary relationship in any context comprise a special breed of cases that often loosen normally stringent requirements of causation and damages. the crux of petitioners' objections ultimately hinges on their expectation that if the prosecution has a case against their clients. loyalty. To the same effect is the ruling in Searcy. in general. and Shipley P. In this case. alternative source 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. competence. which exists not only during the relationship. relating to the subject thereof. Denney. is not prepared to accept respondents' position without denigrating the noble profession that is lawyering. In fine. are under the seal of confidence and entitled to protection as privileged communications. his name cannot be used or disclosed if the disclosure leads to evidence. In Milbank. supra. . 52 What these cases unanimously seek to avoid is the exploitation of the general rule in what may amount to a fishing expedition by the prosecution. . These cases may be readily distinguished. More important.

which acts constitute gross abuse of official position and authority. only three documents were submitted for the purpose. Whichever way one looks at it. Jr. we will not sanction acts which violate the equal protection guarantee and the right against self-incrimination and subvert the lawyer-client confidentiality privilege. claiming that their acts were made in furtherance of "legitimate lawyering." III In response to petitioners' last assignment of error. Avelino V. the Resolutions of respondent Sandiganbayan (First Division) promulgated on March 18. and were not the clients which the PCGG wanted disclosed for the alleged questioned transactions. those that fall within a class should be treated in the same fashion. as to the bare statement that private respondent merely acted as a lawyer and nominee. whatever restrictions cast on some in the group equally binding the rest. The condition also constitutes a transgression by respondents Sandiganbayan and PCGG of the equal protection clause of the Constitution. In the broader sense. among others. Edgardo J. respondents alleged that the private respondent was dropped as party defendant not only because of his admission that he acted merely as a nominee but also because of his undertaking to testify to such facts and circumstances "as the interest of truth may require.. the PCGG should conclusively show that Mr. Respondent Sandiganbayan is further ordered to exclude petitioners Teodoro D. not only in violation of the attorney-client privilege but also of the constitutional right against self-incrimination. Eduardo U. the identity of the principal. respondent Sandiganbayan should have required proof of the undertaking more substantial than a "bare assertion" that private respondent did indeed comply with the undertaking. No such substantial distinctions exist from the records of the case at bench. ACCRA Investment Corporation. These were clients to whom both petitioners and private respondent rendered legal services while all of them were partners at ACCRA. unjust enrichment. Escueta and Paraja G. flagrant breach of public trust. violation of the Constitution and laws of the Republic of the Philippines. et al. as manifested by the PCGG. 61 To justify the dropping of the private respondent from the case or the filing of the suit in the respondent court without him. it is sufficient to state that petitioners have likewise made the same claim not merely out-of-court but also in the Answer to plaintiff's Expanded Amended Complaint. the PCGG would exact from petitioners a link "that would inevitably form the chain of testimony necessary to convict the (client) of a crime. Eduardo Cojuangco. Roco and the PCGG. Cruz. . . IN VIEW OF THE FOREGOING. a free ride at the expense of such rights. 62 Those who fall within a particular class ought to be treated alike not only as to privileges granted but also as to the liabilities imposed. 0033 alleged that the defendants therein. 1992 and May 21. Instead. as well as deeds of assignment petitioners executed in favor of its clients covering their respective shareholdings. signed by counsel. but worse. nominees and/or agents by allowing themselves. the guarantee operates against uneven application of legal norms so that all persons under similar circumstances would be accorded the same treatment. Concepcion. 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. As was noted in a recent decision: "Favoritism and undue preference cannot be allowed. not only to reveal the identity of their clients. To this end. became the holder of approximately fifteen million shares representing roughly 3. But petitioners are not mere witnesses. to submit to the PCGG documents substantiating the client-lawyer relationship.3% of the total capital stock of UCPB as of 31 March 1987. public respondents contend that the primary consideration behind their decision to sustain the PCGG's dropping of private respondent as a defendant was his promise to disclose the identities of the clients in question. Hayuduni as parties-defendants in SB Civil Case No. The equal protection clause is a guarantee which provides a wall of protection against uneven application of status and regulations. . They are co-principals in the case for recovery of alleged ill-gotten wealth. However. a proverbial Sword of Damocles over petitioners' heads. It is clear then that the case against petitioners should never be allowed to take its full course in the Sandiganbayan. If law be looked upon in terms of burden or charges. Moreover..26 The complaint in Civil Case No. An argument is advanced that the invocation by petitioners of the privilege of attorney-client confidentiality at this stage of the proceedings is premature and that they should wait until they are called to testify and examine as witnesses as to matters learned in confidence before they can raise their objections. hence. Angara. By compelling petitioners. petitioners acted as dummies. respondents failed to show — and absolute nothing exists in the records of the case at bar — that private respondent actually revealed the identity of his client(s) to the PCGG. using its wholly-owned investment arm. 33 violates the lawyer-client confidentiality privilege. a statement made in his out-of-court settlement with the PCGG. Victor P. 63 We find that the condition precedent required by the respondent PCGG of the petitioners for their exclusion as parties-defendants in PCGG Case No. to be used as instrument in accumulating ill-gotten wealth through government concessions. the PCGG's demand not only touches upon the question of the identity of their clients but also on documents related to the suspected transactions. this is a fishing expedition. WHEREFORE. . To allow the case to continue with respect to them when this Court could nip the problem in the bud at this early opportunity would be to sanction an unjust situation which we should not here countenance. For the principle is that equal protection and security shall be given to every person under circumstances. Since the undertaking happens to be the leitmotif of the entire arrangement between Mr. which if not identical are analogous." 60 Being "similarly situated" in this regard. an undertaking which is so material as to have justified PCGG's special treatment exempting the private respondent from prosecution. Lazatin." . Regala." 59 First. ACCRA. Cojuangco is their client and it was Cojuangco who furnished all the monies to the subscription payment. public respondents must show that there exist other conditions and circumstances which would warrant their treating the private respondent differently from petitioners in the case at bench in order to evade a violation of the equal protection clause of the Constitution. in violation of the equal protection clause. UNICOM and others and that through insidious means and machinations. two of which were mere requests for re-investigation and one simply disclosed certain clients which petitioners (ACCRA lawyers) were themselves willing to reveal. Jr. 0033 entitled "Republic of the Philippines v. . 1992 are hereby ANNULLED and SET ASIDE. which includes . therefore. 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. Jose C. etc. The PCGG wanted to establish through the ACCRA lawyers that Mr. 64 It is grossly unfair to exempt one similarly situated litigant from prosecution without allowing the same exemption to the others. What is required under this constitutional guarantee is the uniform operation of legal norms so that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred and the liabilities imposed. They have made their position clear from the very beginning that they are not willing to testify and they cannot be compelled to testify in view of their constitutional right against self-incrimination and of their fundamental legal right to maintain inviolate the privilege of attorney-client confidentiality. including herein petitioners and Eduardo Cojuangco. It should not be allowed to continue a day longer. While we are aware of respondent PCGG's legal mandate to recover ill-gotten wealth. The case hangs as a real and palpable threat. Roco was treated as species apart from the rest of the ACCRA lawyers on the basis of a classification which made substantial distinctions based on real differences.

the PCGG presented evidence to substantiate Roco's compliance. In short. The rule of confidentiality under the lawyer-client relationship is not a cause to exclude a party. (Id. In view of their adamantine position. and it has since been an accepted firmament in the profession. I do not hesitate to express that view because I strongly feel that this Court must confine itself to the key issue in this special civil action for certiorari. allow themselves to be like Roco.27 SO ORDERED. the PCGG decided to drop or exclude from the complaint original co-defendant Raul Roco because he had allegedly complied with the condition prescribed by the PCGG. or the PCGG in this case. he would be solely answerable therefor to his principals/clients and. J. The petitioners seek to be accorded the same benefit granted to or to be similarly treated as Roco. the PCGG submitted a Third Amended Complaint without Roco as a defendant. . despite all the unrestrained calumny hurled against it. unless they too would make themselves like Roco. viz. a situation of the Republic attempting to establish a case not on what it perceives to be the strength of its own evidence but on what it could elicit from a counsel against his client. Separate Opinions VITUG. thus: . in an orderly society that is opposed to all forms of anarchy. In time. These are the pieces of evidence upon which the Sandiganbayan founded its conclusion that the PCGG was satisfied with Roco's compliance. From the undisputed facts disclosed by the pleadings and summarized in the ponencia. and Kapunan Law Offices dated September 21. The Sandiganbayan found that 5. the petitioners herein. If Roco's revelation violated the confidentiality of a lawyer-client relationship. entitled to be excluded from the Third Amended Complaint such that denial thereof would constitute grave abuse of discretion on the Sandiganbayan's part? To me. the petitioners did not. The protection of confidentiality of the lawyer-client relationship is one. The ponencia itself so stated. to wit: (a) Letter to respondent PCGG of the counsel of respondent Roco dated May 24. respondent PCGG presented evidence to substantiate compliance by private respondent Roco of the conditions precedent to warrant the latter's exclusion as partydefendant in PCGG Case No. as well as copies of deeds of assignments the petitioners executed in favor of their principals/clients. In the case below. undertake that he will reveal the identity of the principals for whom he acted as nominee/stockholder in the companies involved in PCGG Case No. It. I cannot find my way clear to a conclusion that the Sandiganbayan committed grave abuse of discretion in not acting favorably on the petitioners' prayer in their Comment to the PCGG's Motion to Admit Third Amended Complaint. as it should. which revelation could show the lack of action against him. it so occupies. Nevertheless. DAVIDE. JR. given the attendant circumstances already detailed in the ponencia. concurring: The legal profession. they must first voluntarily adopt for themselves the factual milieu created by Roco and must bind themselves to perform certain obligations as Roco. 8.g. who did not file a formal motion to be excluded but only made the request to that effect as a rider to their Comment to the Motion to Admit Third Amended Complaint. Id.. disclose the identity of their principals/clients and submit documents substantiating their claimed lawyer-client relationship with the said principals/clients. Sandiganbayan (173 SCRA 72).. whether or not the Sandiganbayan acted with grave abuse of discretion in not excluding the defendants. No. to this Court in an appropriate disciplinary action if warranted. They cannot claim the same treatment.. appears that Roco has complied with his obligation as a consideration for his exclusion from the Third Amended Complaint. and 9. It is precisely for this that in response to the petitioners' comment on the aforementioned Motion to Admit Third Amended Complaint the PCGG manifested that it is willing to accord the petitioners the treatment it gave Roco provided they would do what Roco had done. e. has been simply buried under the avalanche of authorities upholding the sanctity of lawyer-client relationship which appears to me to be prematurely invoked. the answer is clearly in the negative.. I find it unreasonable for the Sandiganbayan to compel petitioners to breach the trust reposed on them and succumb to a thinly disguised threat of incrimination. Rules of Court) as. 1989 reiterating a previous request for reinvestigation by the PCGG in PCGG Case No. is raised. .. I join my other colleague who vote for the GRANT of the petition. 5-6). The PCGG is satisfied that defendant Roco has demonstrated his agency and that Roco has apparently identified his principal. those enumerated in § 1. Reason and logic dictate that they cannot. the admission of the Third Amended Complaint cannot be validly withheld by the Sandiganbayan. J. there was an agreement or compromise settlement between the PCGG and Roco. an exalted position in the proper dispensation of justice. To be sure.. Accordingly. Rule 3.O. the rule is not without its pitfalls. they cannot be excluded except by way of a motion to dismiss based on the grounds allowed by law (e. 0033. It allows the lawyer and the client to institutionalize a unique relationship based on full trust and confidence essential in a justice system that works on the basis of substantive and procedural due process. The petitioners have not assailed such finding as arbitrary. There is at all no showing that Civil Case No. The prerogative to determine who shall be made defendants in a civil case is initially vested in the plaintiff. unfortunately. Bunag. That issue. much less compel the PCGG to drop them as defendants. and demands against it may be strong. in the ultimate analysis. Rules of Court). that is. 0033 cannot further be proceeded upon or that any judgment therein cannot be binding without Roco remaining as a defendant. no more than mere tests of vigor that have made and will make that rule endure. indeed. It exists upon the thesis that. for nothing whatsoever. No obstacle to such an agreement has been insinuated. They have no right to make such a demand for until they shall have complied with the conditions imposed for their exclusion.). 33.. The ponencia's observation then that Roco did not refute the petitioners' contention that he did not comply with his obligation to disclose the identity of his principals is entirely irrelevant. 0033.: dissenting The impressive presentation of the case in the ponencia of Mr. is still the noblest of professions. viz. Rule . 33. This in turn has allowed the PCGG to exercise its power both under the rules of agency and under Section 5 of E.g. 14-1 in relation to the Supreme Court's ruling in Republic v. whether an indispensable party has not been joined. and (c) Letter of Roco. Rule 16. from the Third Amended Complaint in Civil Case No. 1989 executed by private respondent Roco as Attachment to the letter aforestated in (a). 1988 to the respondent in behalf of private respondent Roco originally requesting the reinvestigation and/or re-examination of evidence by the PCGG it Complaint in PCGG Case No. The control of the Court comes in only when the issue of "interest" (§ 2. The petitioners did not do so because they believed that compliance thereof would breach the sanctity of their fiduciary duty in a lawyer-client relationship. but these problems are. Otherwise stated. Accordingly. principles have evolved that would help ensure its effective ministration. It is merely aground for disqualification of a witness (§ 24. Are the petitioners. 33. Justice Kapunan makes difficult the espousal of a dissenting view. Accordingly. I see in the case before us. probably. or whether there is a misjoinder of parties (§ 7. (b) Affidavit dated March 8. therefore. As a matter of fact.

Rule 110 of the Rules of Court requires that the complaint or information should be "against all persons who appear to be responsible for the offense involved." Hypothetically admitting the allegations in the complaint in Civil Case No. letters or other documents containing the same privileged matter. from 81 AM JUR 2d. even where the attorney is not aware of his client's purpose. be examined as to any communication made by the client to him. in the cases cited by the majority. 2 of 12 March 1986.28 130. Communications between attorney and client having to do with the client's contemplated criminal acts. a confidence received by an attorney in order to advance a criminal or fraudulent purpose is beyond the scope of the privilege. on their part. from them or from their nominees or transferees. the issue of privilege contested therein arose in grand jury proceedings on different States." What they are being asked to do.O. the Sandiganbayan did not commit any abuse of discretion when it denied the petitioners' prayer for their exclusion as party-defendants because they did not want to abide with any of the conditions set by the PCGG. are not covered by the cloak of privilege ordinarily existing in reference to communications between attorney and client. having taken the witness stand. a case of the recovery of alleged ill-gotten wealth. professional employment. or that they cannot be compelled to reveal or disclose the identity of their principals.O. through subpoena duces tecum or otherwise. in line with their claim that they had done the acts ascribed to them in pursuance of their professional relation to their clients. and all conspiracies. concerning any fact the knowledge of which has been acquired in such capacity. or with a view to. nor can an attorney's secretary.O. 14 of 7 May 1986. Conspiracy is imputed to the petitioners therein. stenographer. whimsically. laches or estoppel — and E. The reason for the rule is that it is not within the professional character of a lawyer to give advised on the commission of crime. conspirators in the commission of the acts complained of for being nominees of certain parties. § 395. In the present case. with emphases supplied. The majority seeks to expand the scope of the Philippine rule on the lawyer-client privilege by copious citations of American jurisprudence which includes in the privilege the identity of the client under the exceptional situations narrated therein. E. as when. discretionary. This privilege is well put in Rule 130 of the Rules of Court. The attorney-client privilege does not generally exist where the representation is sought to further criminal or fraudulent conduct either past. 0033. and the Rules and Regulations of the PCGG. what the petitioners want is their exclusion from the Third Amended Complaint or the dismissal of the case insofar as they are concerned because either they are invested with immunity under the principle of confidentiality in a lawyer-client relationship. he is questioned as to such confidential communicator or advice. Here. which are calculated to hinder the administration of justice will vitiate the privilege. Hence. without the consent of the client and his employer. Communication in contemplation of crime. without the consent of his client. Effect of unlawful purpose. will not defeat the privilege. the mere charge of illegality. Even if we have to accommodate this issue. when a lawyer is under compulsion to answer as witness. such identification being the condition under which the PCGG has expressed willingness to exclude them from the action. Underhill also states: . to wit: § 24. 0033 are barred by such principle. Attorney participation. Secondly. Article XI of the Constitution — which provides that the right of the State to recover properties unlawfully acquired by public officials or employees. and we are not even told what evidentiary rules apply in the said hearings. E. They are sued as principal defendants in Civil Case No. not supported by evidence. In some jurisdictions. this exception to the rule of privilege in confined to such intended acts in violation of the law as are mala in se. But. I still submit that the lawyer-client privilege provides the petitioners no refuge.e. pages 356-357: § 393. i. There would have been abuse if the Sandiganbayan granted the prayer because then it would have capriciously. and oppressively imposed its will on the PCGG. the lawyers concerned were merely advocating the cause of their clients but were not indicted for the charges against their said clients. or with a view to. No. — The following persons cannot testify as to matters learned in confidence in the following cases: xxx xxx (b) An attorney cannot. 0033. Their inclusion as defendants in justified under § 15. either active or passive. Again. the counsel themselves are co-defendants duly charged in court as coconspirators in the offenses charged. and we have the foregoing specific rules above-quoted. § 393 to 395. Witnesses. or in aid or furtherance thereof. Thus. In short. I find myself unable to agree with the majority opinion that the petitioners are immune from suit or that they have to be excluded as defendants. or future. Firstly. No. The attorney-client privilege is not therefor applicable. there must be at least prima facie evidence that the illegality has some foundation in fact.. The attorney-client privilege cannot be used to protect a client in the perpetration of a crime in concert with the attorney. but this. The cases cited by the majority evidently do not apply to them. allegedly. the privilege is invoked in the court where it was already filed and presently pends. Professional responsibility does not countenance the use of the attorney-client privilege as a subterfuge. or clerk be examined. The existence of an unlawful purpose prevents the attorney-client privilege from attaching. Furthermore. No. and more important. or is being otherwise judicially coerced to produce. all because of the sacred lawyer-client privilege. But none of the lawyers in this case is being required to testify about or otherwise reveal "any [confidential] communication made by the client to him. Thus. professional employment. they are. or the claims against them in Civil Case No. I wish to repeat and underscore the fact that the lawyer-client privilege is not a shield for the commission of a crime or against the prosecution of the lawyer therefor. two facts stand out in bold relief. only if they so choose in order to be dropped from the complaint. present. shall not be barred by prescription. 1 of 28 February 1986. which are preliminary proceedings before the filing of the case in court. however. Observation: The common-law rule that the privilege protecting confidential communications between attorney and client is lost if the relation is abused by a client who seeks legal assistance to perpetrate a crime or fraud has been codified. § 394. arbitrarily. Rules of Court) and may only be invoked at the appropriate time. as distinguished from those which are merely mala prohibita. xxx Disqualification by reason of privileged communication. is to identify the latter to the PCGG and the Court. or his advice given thereon in the course of. or his advice given thereon in the course of. I quote. § 2. From the plethora of cases cited. The revelation is entirely optional.

in holding not privileged communications to an attorney having for their object the communication of a crime. The relation of attorney and client cannot exist for the purpose of counsel in concocting crimes. vol. Fifth ed. knowing it. 66 Eng Reprint 751. Various reasons have been announced as being the foundation for the holdings that communications with respect to contemplated criminal or fraudulent acts are not privileged. Van Alstine (1885) 57 Mich 69. Hunt (1901) 1 Ont L Rep 334." In Garside v. Lushington. inasmuch as full confidence has been withheld. Jackson (1851) 9 Hare 387. Matthews v. The interests of public justice require that no such shield from merited exposure shall be interposed to protect a person who takes counsel how he can safely commit a crime. either in the commission of a crime. and that he may be assured that a communication made by him shall not be used to his prejudice. . 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. Co. and. or existing. If the crime or fraud has already been committed and finished. would have his lips closed. 226 SW 308. a client may advise with an attorney in regard to it. In accordance with this rule. 5 ALR 972. for the rule is prostitution of the honorable relation of attorney and client will not be permitted under the guise of privilege. the court strongly approved of a view as stated arguendo for plaintiff. Re Postlethwaite (1887) LR 35 Ch Div (Eng) 722. (1920) 205 Mo App 495. Rationale of rule excepting communications with respect to contemplated criminal or fraudulent act. Strong v. Charlton v. 211 SW. Vogelstein v. the court said: "The reason of the principle which holds such communications not to be privileged is that it is not within the professional character of a lawyer to give advice upon such subjects. Russell v. Hoagland (1891) 48 NJ Eq 455. (1927) 221 Ky 301. the chief justice said "I believe the law is. Cox (1884) LR 14 QB Div (Eng) 153 — CCR. there is not professional confidence. but under certain circumstances it might become the duty of the attorney to do so.29 There are many other cases to the same effect. and does not extend to communications made in contemplation of a crime. that party so consulting the attorney has no privilege whatever to close the lips of the attorney from stating the truth. 66 Eng Reprint 751. 5 ALR 972. Standard F. and obtains advice for what afterwards turns out to be the commission of a crime or a fraud. but if the client has a criminal object in view in his communications with his solicitor one of these elements must necessarily be absent. 836-837. and communicate with him freely. 23 NW 594. Outram (1856) 3 Jur NS (Eng) 39. to enable the attorney to properly advise and to properly represent the client in court or when prosecutions are threatened. the court said: "In order that the rule may apply. Anglesea (1743) 17 How St Tr (Eng) 1229. in Annesley v. In Reg. where a forged will or other false instrument has come into possession of an attorney through the instrumentality of the accused. he reposes no confidence. and the best mode of accomplishing it. who. because it is a part of the business and duty of those engaged in the practice of the profession of law.C. Warden (1934) 150 Misc 714. Ins. Abner (1937) 368 Ky 502. and properly is. in Standard F. pp. If the client does not frankly and freely reveal his object and intention as well as facts. v. The solicitor's advice is obtained by a fraud. when the transaction impeached is charged to be based upon fraud. as follows: "I shall claim leave to . thus: c. there is no privilege. Co. If the client does not avow his object. and therefore no privilege. The fact that the attorney is not cognizant of the criminal or wrongful purpose. v. (1920) 205 Mo App 495. . and the attorney does act. People ex rel. or. as to what may afterwards turn out to be a crime or fraud. Matthews v. 332. because it cannot be the solicitor's business to further any criminal object. The attorney's ignorance of his client's intentions deprives the information of a professional character as full confidence has been withheld. the court was of the opinion that there could be no such relation as that of attorney and client. is immaterial. 441. (H. it would work most grievous hardship on an attorney. the privileged relation of attorney and client existing only for lawful and honest purposes. 37 Am Dec 287. Coombes (1863) 4 Giff 372. The reason perhaps most frequently advanced is that in such cases there is no professional employment. People v. Co. Cummings v. or in the doing of a wrong by force or fraud to an individual. inasmuch as it is no part of the lawyer's duty to aid in crime — he ceases to be counsel and becomes a criminal. properly speaking. Sec. said: "They then partake of the nature of a conspiracy. The court in People v. The attorney is then compelled to produce a forged writing against the client. to give advice to those who have made infractions of the laws. the question directly involved being the competency of a clerk in a business establishment to testify as to certain information which he acquired while working in the establishment. Ins. Cox (1884) LR 14 QB Div (Eng) 172 — CCR). If his criminal object is avowed. Hoagland (1891) 48 NJ Eq 455. 23 NW 594. and without his having an opportunity of exculpating himself . attempts to dissuade his client. Covency v. that if a party consults an attorney." So. Co v. There is no privilege in the case which I have suggested of a party consulting another. 2. Strong v. 298 SW 943. 271 NYS 1059). and that it is no part of the profession of an attorney or counselor at law to be advising persons as to how they may commit crimes or frauds. Coombes (1863) 4 Giff 372. Smith v. 211 SW 441. United R." And in Coveney v. The court cannot permit it to be said that the contriving of a fraud forms part of the professional business of an attorney or solicitor. but which the attorney under certain circumstances may be bound to disclose at once in the interest of justice. 270 NYS 362 (affirmed without opinion in (1934) 242 App Div 611. there must be both professional confidence and professional employment." The protection which the law affords to communications between attorney and client has reference to those which are legitimately and properly within the scope of a lawful employment. and the communications cannot be divulged as evidence without the consent of the client. 125 AMERICAN LAW REPORTS ANNOTATED. the client does not consult his adviser professionally. Tannahill (1841) 1 Hill (NY) 33. v. A Treatise on the Law of Criminal Case Evidence. If the client consults the attorney at law with reference to the perpetration of a crime. United R. and it is not only lawful to divulge such communications. Hamil & Co. if any such privilege should be contended for. it is conducive to the administration of justice that the client shall be free to communicate to his attorney all the facts within his knowledge. although the question of privilege as to communications between attorney and client was not involved. in ignorance of the true character of the instrument. 5211 (cited in Reg. Com. Abner (1937) 268 Ky 502. Carney v. v. The client must either conspire with his solicitor or deceive him. There is no valid claim of privilege in regard to the production of documents passing between solicitor and client. Van Alstine (1885) 57 Mich 69. and it is thought better that the alleged privilege should suffer than that honestly and fair dealing should appear to be violated with impunity. 105 SW (2d) 599. 21 A 1054. Indeed. or attempted conspiracy. and might place him in a very serious position of being suspected to be a party to the fraud. or perpetration of a fraud. Smithhart (1919) 183 Ky 679. Reg. Cox (1884) LR 14 QB Div (Eng) 153 — CCR. (1956). 37 AM Dec 287. that is the matter to be investigated. In Tichborne v. summarizes the rationale of the rule excepting communications with respect to contemplated criminal or fraudulent acts. 68 Eng Reprint 558. Hoagland (NJ) supra. 516-519. 105 SW(2d) 599. Charlton v. for the state of facts which is the foundation of the supposed confidence does not exist. See to the same effect Carney v. 226 SW 308. with the hope and expectation that the attorney would take some action in reference thereto. emphasis mine). when employed and relied upon for that purpose. or how they may escape the consequences of contemplated crimes and frauds. Matthews v. 21 A 1054. after he had been consulted upon what subsequently appeared to be a manifest crime and fraud. there is no privilege. and they co-operate in effecting it. Tannahill (1841) 1 Hill (NY) 33. England (1892) 50 Mo App 338. v. Underhill. Smithhart (1919) 183 Ky 679. shorthand Notes (Eng) p. a professional man.

the client's name has been deemed privileged. I apprehend that if a secret which is contrary to the public good. The court said: "We say this notwithstanding the comments of opposing counsel as to the indelicacy of his position because of his being now on the opposite side of the issue that arose as a consequence of the communication he testifies about.L. except where so much has been divulged with regard to to legal services rendered or the advice sought. Disclosure of identity of client as breach of confidentiality. Identity of client or purpose of suit. the state must prove the connection between the piece of physical evidence and the defendant without in any way relying on the testimony of the client's attorney who initially received the evidence and. Will v. Distinction: Where an attorney was informed by a male client that his female acquaintance was possibly involved in [a] his-and-run accident. or perjury. and because of. 8. "It would be monstrous to hold that if counsel was asked and obtained in reference to a contemplated crime that the lips of the attorney would be sealed. 81 AM JUR 2d. even where the subject matter of the attorney-client relationship has already been revealed. Patterson (1909) 151 Ill App 36. Where an undisclosed client is a party to an action. Public policy would forbid it. and therefore does not attach to its creation. an attorney cannot refuse to reveal the identity of a person who asked him to deliver stolen property to the police department. no private obligations can dispense with that universal one which lies on every member of society to discover every design which may be formed.30 consider whether an attorney may be examined as to any matter which came to his knowledge as an attorney. § 411. p. The seal of personal confidence can never be used to cover a transaction which is in itself a crime. murder. For this reason. Although as a general rule. State (1858) 2 Head (Tenn) 213. However. vol. when the facts might become important to the ends of justice in the prosecution of crime. in some cases. There will be full opportunity for them to establish that fact at the trial where the broader perspectives of the case . contrary to the laws of society. Communications of a client to an attorney are not privileged if they were a request for advice as to how to commit a fraud.C. it appears that the rule making communications between attorney and client privileged from disclosure ordinarily does not apply where the inquiry is confined to the fact of the attorney's employment and the name of the person employing him. it would be improper to sanction such a wish. Every litigant is in justice entitled to know the identity of his opponents. if desired. (Wigmore on Evidence. which he had sought the advice of his attorney. as he confesses. but his duty. However. to destroy the public welfare. said. comes to the knowledge of an attorney. then the identity is protected by the attorney-client privilege. the opposing party has a right to know with whom he is contending or who the real party in interest is. tended to the maintenance of a higher standard of professional ethics by preventing the relation of attorney and client from operating as a cloak for fraud. He cannot be obliged to struggle in the dark against unknown forces. pages 366-368. 1322. a client's name may be privileged if information already obtained by the tribunal. the petitioners have not shown that they are so situated with respect to their principals as to bring them within any of the exceptions established by American jurisprudence. People vs. as well as in civil actions. Farmer (1909) 194 NY 251. Tornabells & Co. inasmuch as the transaction was not a legal service or done in the attorney's professional capacity. Name or identity. whether a bona fide attorney-client relationship exists between them. At the present stage of the proceedings below. where the attorney has surrendered to the authorities physical evidence in his possession by way of the attorney-client relationship. In 114 ALR. This general rule applies in criminal cases. not covered by the attorney-client privilege. 87 NE 457. thus. in later proceedings. And if it is necessary for the purpose to make a plain exception to the rule of confidence. People v. "Who maintains you during this trial?" upon the analogy of the principle already examined (2298 supra). might expose him to criminal prosecution for acts subsequent to. Where disclosure of the identity of a client might harm the client by being used against him under circumstances where there are no countervailing factors. combined with the client's identity. observed that this rule was not in contravention of sound public policy. § 410 and 411." The court in McMannus v. but on the contrary. the obligation to the public must dispense with the private obligation to the client. where an inquiry is directed to an attorney as to the name or identity of his client. Thus. that to reveal the client's name would be to disclose the whole relationship and confidential communications. the privilege cannot be used to evade a client's responsibility for the use of legal process. thus." And the court in Lanum v. if not the nominal adversary. Name or identity of client. — The identity of the attorney's client or the name of the real party in interest will seldom be a matter communicated in confidence because the procedure of litigation ordinarily presupposes a disclosure of these facts. his duty to the public obliges him to disclose it. such as a design to commit treason. so far as a client may in fact desire secrecy and may be able to secure action without appearing as a party to the proceedings. 609. As to disclosing the identity of a client. the attorney-client privilege is inapplicable even though the information was communicated confidentially to the attorney in his professional capacity and. in spite of the fact that the attorney may have been sworn to secrecy." The object of prohibiting the disclosure of confidential communications is to protect the client. it being in such a case not only the attorney's privilege. The revelation of the identification of a client is not usually considered privileged. In such a case the relation cannot be taken to exist. then it must be made. even in a cause where he is concerned. emphases supplied). and is interested in the cause to the extent of a large contingent fee. If he is employed as an attorney in any unlawful or wicked act. In criminal proceedings. the attorney may not be called to the stand and asked to disclose the identity of the client. (1907) 3 Porto Rico Fed Rep 125. He has as much right to ask the attorney "Who fees your fee?" as to ask the witness (966 supra). Witnesses. since the privilege presupposes the relationship of client and attorney. to disclose the facts to the court. As is indicated in 28 R. 563. states: § 410. He has by anticipation the right. (1961). p. Petersen (1901) 60 App Div 118. the identity of a defendant in a criminal prosecution is a matter of public record and. we also find the following statement: 1. and not to make the attorney an accomplice or permit him to aid in the commission of a crime. the identity of the female did not come within scope of attorney-client privilege although the identity of the male client was protected. (emphases supplied) WIGMORE explains why the identity of a client is not within the lawyer-client privilege in this manner: § 2313. to enforce the legal responsibility of those who may have maliciously sued or prosecuted him or fraudulently evaded his claim. Disclosure of a client's identity is necessary proof of the existence of the attorney-client relationship and is not privileged information. NYS 941. Furthermore.

In their Answer.02. Escueta. Concepcion. Concepcion. all at the expense and to the grave and irreparable damage of Plaintiff and the Filipino people. but the reasons for the hasty resolution desired is naturally suspect. inter alia. 14-A in relation to the Supreme Court's ruling in Republic v. Cruz. using its wholly-owned investment arm. Jose C. Angara as holding approximately 3. through insidious means and machinations. and Abello law offices (ACCRA) plotted.O. Regala. Sued as co-defendants are the petitioners in the cases at bar — lawyers Teodoro Regala. dissenting: This is an important petition for certiorari to annul the resolutions of the respondent Sandiganbayan denying petitioners' motion to be excluded from the Complaint for recovery of alleged ill-gotten wealth on the principal ground that as lawyers they cannot be ordered to reveal the identity of their client. Vinluan. better known as the ACCRA Law Firm. Victor P. PUNO. I then vote to DENY. COCOMARK.. And under the Canons of Professional Ethics.. Code of Professional Responsibility) and to employ only fair and honest means to attain the lawful objectives of his client (Rule 19. But until they do identify their clients.400. and the petitioners alleged. Lawyer Roco was excluded on the basis of his promise to reveal the identity of the principals for whom he acted as nominee/stockholder in the companies involved in the case.). we fast forward the facts. Eduardo Escueta and Paraja Hayudini. Id. ACCRA Investments Corporation. the Sandiganbayan denied the exclusion of petitioners in Case No. Angara. J. The insistence for their exclusion from the case is understandable. They claimed that their activities were "in furtherance of legitimate lawyering. They prayed for their exclusion from the complaint. They also alleged that lawyer Roco was excluded though he did not in fact reveal the identity of his clients. 1991). their principal. . (b) acting as incorporators or stockholders thereof. betrayal of public trust and brazen abuse of power as more fully described (in the subsequent paragraphs of the complaint).e. The PCGG is satisfied that defendant Roco has demonstrated his agency and that Roco has apparently identified his principal. Eduardo U. begrudge the PCGG for keeping them as a party defendants. through the use of the coconut levy funds. viz: xxx xxx xxx The wrongs committed by defendants acting singly or collectively and in unlawful concert with one another. On the other hand. certificates of stock endorsed in blank or blank deeds of trust or assignment). the existence and identity of the client. Petitioners refused to comply with the PCGG conditions contending that the attorney-client privilege gives them the right not to reveal the identity of their client. and that will be their choice.3% of the total outstanding capital stock of UCPB as of 31 March 1987. Defendants Eduardo Cojuangco. bribery. Angara. schemed.. Regala. petitioners alleged that the legal services offered and made available by their firm to its clients include: (a) organizing and acquiring business organizations. Paraja G. Canon 19. 33. Jr. extortion. First. Canon 1.31 shall have been presented and can be better appreciated by the court. the PCGG filed a Motion to Admit Third Amended Complaint and the Third Amended Complaint excluding lawyer Roco as party defendant. Jose Concepcion. including the acquisition of the San Miguel Corporation shares and the institutionalization through presidential directives of the coconut monopoly. petitioners demanded that they be extended the same privilege as their codefendant Roco. COCOLIFE. Jr. blackmail. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege. became the holder of approximately fifteen million shares representing roughly 3. No. Avelino V. These canons strip a lawyer of the lawyer-client privilege whenever he conspires with the client in the commission of a crime or a fraud. plunder of the nation's wealth. PCGG agreed but set the following conditions: (1) disclosure of the identity of their client. UNICOM. Regalio A. The PCGG has apparently offered to the ACCRA lawyers the same conditions availed of by Roco.000 shareholders. the instant petition. full disclosure in exchange for exclusion from these proceedings (par. corporate books show the name Edgardo J. The Complaint against Cojuangco. Lazatin. i. We do not even have to go beyond our shores for an authority that the lawyer-client privilege cannot be invoked to prevent the disclosure of a client's identity where the lawyer and the client are conspirators in the commission of a crime or a fraud. Cruz. It held: xxx xxx xxx ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted.01. The Presidential Commission on Good Government (PCGG) filed Civil Case No." In the course of the proceedings in the Sandiganbayan. This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. (2) submission of documents substantiating their lawyer-client relationship. which revelation could show the lack of course against him. Angara. they cannot compel the PCGG to be accorded the same treatment accorded to Roco. Hayudini and Raul S.). Id. Roco of Angara.744 shares as of 7 June 1984. Neither can this Court. considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to the debated. 5. for want of merit. 33 before the Sandiganbayan against Eduardo M. CIC and more than twenty other coconut levy funded corporations. embezzlement and other acts of corruption. PCGG's COMMENT dated November 4. In the same vein. The ACCRA lawyers have preferred not to make the disclosures required by the PCGG. for the recovery of alleged ill-gotten wealth. now a duly elected senator of the Republic. 7. include the misappropriation and theft of public funds. that he advances the honor of his profession and the best interest of his client when he renders service or gives advice tending to impress upon the client and his undertaking exact compliance with the strictest principles of moral law (Canon 32. Id. On March 18. The Sandiganbayan ordered petitioners to comment on the motion. All co-defendants were then partners of the law firm. Edgardo J. Cojuangco. and (c) delivering to clients the corresponding documents of their equity holdings (i. therefore. devised. This in turn has allowed the PCGG to exercise its power both under the rules of Agency and under Section 5 of E. Also included as a co-defendant is lawyer Raul Roco. a lawyer must steadfastly bear in mind that his great trust is to be performed within and not without the bounds of the law (Canon 15. the financial and corporate framework and structures that led to the establishment of UCPB. Avelino V. Vinluan. Jr. In their Comment. conspired and confederated with each other in setting up. and (3) submission of the deeds of assignment petitioners executed in favor of their client covering their respective shareholdings. Cruz.e. Teodoro D. The same conditions were imposed on lawyer Roco. Concepcion. 1992. Abello. Sandiganbayan (173 SCRA 72). ACCRA.. Edgardo J. Regala and Cruz Law Offices.. This ranks ACCRA Investments Corporation number 44 among the top 100 biggest stockholders of UCPB which has approximately 1.. Under our jurisdiction. The ACCRA lawyers cannot.). lawyers are mandated not to counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system (Rule 1. Rogelio A.

Roco had revealed. With due respect. I like to start by stressing the irreducible principle that the attorney-client privilege can never be used as a shield to commit a crime or a fraud. Communications to an attorney having for their object the commission of a crime ". 8 As early as 1933. including the acquisition of San Miguel Corporation shares and the institutionalization through presidential directives of the coconut monopoly. the disclosure does not constitute a substantial distinction as would make the classification reasonable under the equal protection clause.'" 5 Prescinding from these premises. Roco is DENIED for lack of merit. Justice Cardozo held in Clark v. The PCGG has agreed to exclude petitioners from the Complaint provided they reveal the identity of their client. or had undertaken to reveal. but under certain circumstances it might become the duty of the attorney to do so. But this conception of the privilege is without support . COCOMARK. 2 Equally compelling is the need to protect the adversary system of justice where truth is best extracted by giving a client broad privilege to confide facts to his counsel. The petition at bar is atypical of the usual case where the hinge issue involves the applicability of attorney-client privilege. . . 33 as conspirators. UNICOM.e. The factual disclosures required by the PCGG are not limited to the identity of petitioners ACCRA lawyers' alleged client(s) but extend to other privileged Respondent Sandiganbayan sanctioned favoritism and undue preference in favor of Mr. . through the use of the coconut levy funds." In the petition at bar. The issue of attorney-client privilege arose when PCGG agreed to exclude petitioners from the complaint on condition they reveal the identity of their client. 4 Accordingly." To stress. Paraja G. The relation of attorney and client cannot exist for the purpose of counsel in concocting crimes. a narrow construction has been given to the privilege and it has been consistently held that "these competing societal interests demand that application of the privilege not exceed that which is necessary to effect the policy considerations underlying the privilege. 1991 filed by the ACCRA lawyers and joined in by Atty. the PCGG appears to have relented on its original stance as spelled out in its Complaint that petitioners are co-conspirators in crimes and cannot invoke the attorney-client privilege.. however. To bridle at center the centrifugal forces of these policy considerations. the identities of the client(s). no less than the Mr. . Together with Mr.' there must be prima facie evidence that it has foundation in fact. to the strict application of the law agency. . In this petition for certiorari. the attorney-client privilege includes the identity of the client(s). Petitioners refused to comply and assailed the condition on the ground that to reveal the identity of their client will violate the attorney-client privilege. 1992. 3 Similarly deserving of sedulous concern is the need to keep inviolate the constitutional right against selfincrimination and the right to effective counsel in criminal litigations.32 WHEREFORE. not supported by any evidence. and it is not only lawful to divulge such communications. There is absolutely no evidence that Mr. that a mere allegation that a lawyer conspired with his client to commit a crime or a fraud will not defeat the privilege. Sandiganbayan later denied petitioners' motions for reconsideration in its resolutions dated May 21. III The Honorable Sandiganbayan committed grave abuse of discretion in not holding that. the identities of the client(s) for whom he acted as nomineestockholder. To drive the privilege away. COCOLIFE. the Counter Motion dated October 8. It ought to be noted that petitioners were included as defendants in Civil Case No. matters. Cojuangco. the financial and corporate framework and structures that led to the establishment of UCPB. As a Under the peculiar facts of this case. Assuming then that petitioners can invoke the attorney-client privilege since the PCGG is no longer proceeding against them as co-conspirators in crimes. they are charged with having ". PCGG has conceded that petitioner are entitled to invoke the attorney-client privilege if they reveal their client's identity. 1. a lawyer is not a gun for hire. . Jr. conspired and confederated with each other in setting up. II The Honorable Sandiganbayan committed grave abuse of discretion in not considering petitioners ACCRA lawyers and Mr. courts have followed to prudential principle that the attorney-client privilege must not be expansively construed as it is in derogation of the search for truth. Roco had revealed. The interests of public justice require that no such shield from merited exposure shall be interposed to protect a person who takes counsel how he can safely commit a crime. Roco as similarly situated and. partake the nature of a conspiracy. will set the confidences free . i. 2. 3. therefore. United States 9 that: "there are early cases apparently to the effect that a mere charge of illegality. . It is thus necessary to resolve whether the Sandiganbayan committed grave abuse of discretion when it rejected petitioners' thesis that to reveal the identity of their client would violate the attorney-client privilege. there must be 'something to give colour to the charge. The issue poses a trilemma for its resolution requires the delicate balancing of three opposing policy considerations. under the facts of this case. petitioners are charged with having conspired in the commission of crimes. IV The Honorable Sandiganbayan committed grave abuse of discretion in not requiring that the dropping of party-defendants by the PCGG must be based on reasonable and just grounds and with due consideration to the constitutional right of petitioners ACCRA lawyers to the equal protection of the law. the privilege must be upheld only in those circumstances for which it was created. 1988 and September 3. In fine. our initial task is to define in clear strokes the substantive content of the attorney-client privilege within the context of the distinct issues posed by the petition at bar. however. CICI and more than twenty other coconut levy funded corporations. The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. petitioners contend: I The Honorable Sandiganbayan gravely abused its discretion in subjecting petitioners ACCRA lawyers who indisputably acted as lawyers in serving as nomineestockholders. . or had undertaken to reveal. Hayudini for the same treatment by the PCGG as accorded to Raul S." 6 In the well chosen words of retired Justice Quiason. One overriding policy consideration is the need for courts to discover the truth for truth alone is the true touchstone of justice. the attorney-client privilege prohibits petitioners ACCRA lawyers from revealing the identity of their client(s) and the other information requested by the PCGG. 2. Even assuming that Mr.. 7 I hasten to add. we are asked to rule whether the attorney-client privilege includes the right not to disclose the identity of client. . Roco and violation of the equal protection clause. 1 For the first time in this jurisdiction. deserving of equal treatment. we should focus on the more specific issue of whether the attorney-client privilege includes the right not to divulge the identity of a client as contended by the petitioners. 1.

1975).2d 215. 365 (9th Cir. Accord: United States v. 11 The person claiming the privilege or its exceptions has the obligation to present the underlying facts demonstrating the existence of .S.). Id. Sherman. denied.706 was being tendered for additional amounts due from undisclosed taxpayers. 1028-29 (5th Cir. the Fourth Circuit promulgated the following exception: To the general rule is an exception. See: In re Walsh. 1944). 695 F. 1115 (7th Cir. The Ninth Circuit.Ed. 1086 (9th Cir. 218 (9th Cir. 680 F. The Ninth Circuit has continued to acknowledge this exception. 2d 666. 1982 (en banc).2d 663. 531. 1960). 6 L. has emphasized that it is the link between the client and the communication. the Ninth Circuit observed: If the identification of the client conveys information which ordinarily would be conceded to be part of the usual privileged communication between attorney and client. see cases collected id.Ed. applying this exception. cert.2d 666 (5th Cir. 170 Cal. has also been recognized by other circuits. 648. 445 F. cert. 449 U. In re Grand Jury Proceedings (Lawson).2d 1347. Accord: United States v. 66 L. 531. In re Grand Jury Witness (Salas). 66 L. 1982). 15 L.2d 291 (1980). 1353 (9th Cir. Like the "legal advice" exception. 190-91 (9th Cir. NLRB v. 66 L. The identity of the Baird taxpayer was adjudged within this exception to the general rule. 1027 (5th Cir. The Seventh Circuit has added to the Harvey exception the following emphasized caveat: The privilege may be recognized where so much of the actual communication has already been disclosed [not necessarily by the attorney. 204 (5th Cir. 10 viz: The federal forum is unanimously in accord with the general rule that the identity of a client is. In re Grand Jury Proceedings (Jones). 680 F. 19 (3d Cir 1980).2d 248. 1965). 695 F. I part ways with the majority when it ruled that petitioners need not prove they fall within the exceptions to the general rule. denied. This exception. 651 F. 86 S. supra. 600 F. 53. adjudged that the "exception" to the general rule as pronounced in Ex parte McDonough. however that the legal advice exception may be defeated through a prima facie showing that the legal representation was secured in furtherance of present or intended continuing illegality. See also: Clark v.Ct. 351 F. 1982). 869-70. Tillotson v. Koerner. In re Grand Jury Proceedings (Lawson). cert.2d 215. S. 2. Since the legal advice exception is firmly grounded in the policy of protecting confidential communications. See: In re Grand Jury Subpoenas Decus Tecum (Marger/Merenbach). which serves to bring the client's identity within the protective ambit of the attorney-client privilege. 680 F. 2d 199.S.2d 633 (9th Cir. 449 U. In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach). The privilege may be recognized where so much of the actual communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication. Baird. In re Grand Jury Proceedings. not within the protective ambit of the attorneyclient privilege. cert. 1979).2d at 632. supra. 517 F. When the IRS summoned the attorney to ascertain the identity of the delinquent taxpayers the attorney refused identification assertion the attorney-client privilege.Ct. 101 S.Ct. denied. Pape. 2d 291 (1980). 603 F. 67071 (5th Cir. supra. 19 (3d Cir 1980). 252 (7th Cir. 361 (9th Cir.2d 489.Ct. Be that as it may.S.Ed. 218 (9th Cir. See also: Chirac v. 993 (1933). 473 n. 474 (1826). 371 U.. 783 (2d Cir.S. rather than the link between the client and the possibility of potential criminal prosecution. Friedman. Plainly put.2d 808 (1981).2d 1026 (5th Cir. 495 (7th Cir. 1965).33 general rule.S. 1975). 1976 (emphasis added). United States. Boughner.2d 1026. A significant exception to this principle of non-confidentiality holds that such information may be privileged when the person invoking the privilege is able to show that a strong possibility exists that disclosure of the information would implicate the client in the very matter for which legal advice was sought in the first case. 695 F. (11 Wheat) 280. 4 (3d Cir. Harvey. 566 (1915) controlled: The name of the client will be considered privileged matter where the circumstances of the case are such that the name of the client is material only for the purpose of showing an acknowledgment of guilt on the part of such client of the very offenses on account of which the attorney was employed. In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach). Jeffers.Ct. denied. 279 F. 218 (9th Cir. There we also recognized. 24 U. 2d 808 (1981). 1082.2d 1026. Hodge and Zweig. it is not enough to assert the privilege. United States v. All such exceptions appear to be firmly grounded in the Ninth Circuit's seminal decision in Baird v. 83 S. Reinecker.Ed. Tomlinson. United States vs. See: In re Grand Jury Empanelled February 14. 511 F. cert. United States.Ed. 666 (7th Cir. 1981). 306 F. 695 F. 1. In re Grand Jury Proceedings (Lawson). The general rule and its exceptions are accurately summarized in In re Grand Jury Investigation. 15. 1962). 66 L. with limited exceptions. 1982).).S. In re Grand Jury Proceedings (Pavlick). denied. In re Grand Jury Witness (Salas). 1979). U. 637 (2d Cir. 449.2d 540 (1966). 382 U. firmly embedded as the rule itself. United States v. See: In re Grand Jury Subpoenas Duces Tecum (Marger/Merenbach). 101 S.2d 215. 994. 9 L. 361 (9th Cir. The Circuits have embraced various "exceptions" to the general rule that the identity of a client is not within the protective ambit of the attorney-client privilege. 289 U. 631 F.Ed. but by independent sources as well] that identification of the client [or of fees paid] amounts to disclosure of a confidential communication. cert. 1971). 1980). a limited and narrow exception to the general rule.1083.2d at 633. denied.2d 633. Colton v.S. 495 (7th Cir. supra. 869. the attorney-client privilege does not include the right of non-disclosure of client identity. 623 F. 627 F. 279 F. It should be observed. Jones).2d 499 1963). articulated in the Fifth Circuit's en banc decision of In re Grand Jury Proceedings (Pavlick). as where the legal representation itself is part of a larger conspiracy. 149 P.2d 900. 1982) (en banc). I join the majority in holding that the Sandiganbayan committed grave abuse of discretion when it misdelineated the metes and bounds of the attorney-client privilege by failing to recognize the exceptions discussed above. 101 S. however. this exception is also firmly rooted in principles of confidentiality. 600 F. this Court adopts and applies its principles herein.2d 189. 1975). 101 S. however. 1965). 1979).2d 778. 365 (9th Cir. 1982 (en banc). 631 F. L. I respectfully submit that the attorney-client privilege is not a magic mantra whose invocation will ipso facto and ipso jure drape he who invokes it with its protection.2d 17. Another exception to the general rule that the identity of a client is not privileged arises where disclosure of the identity would be tantamount to disclosing an otherwise protected confidential communication. 1. 1982).2d 363. 1979). Tratner.2d 489. is recognized when disclosure of the identity of the client would provide the "last link" of evidence: We have long recognized the general rule that matters involving the payment of fees and the identity of clients are not generally privileged. 279 F.2d 363. The Third Circuit. Another exception. 1977). United States v. 449 U. In re Grand Jury Investigation (Tinari). Citing Baird.2d 17. (United States v. Frank v.2d 1076. 994. 695 F. 1978 (Markowitz). In Baird. 505. admits of well-etched exceptions which the Sandiganbayan failed to recognize. In Baird the IRS received a letter from an attorney stating that an enclosed check in the amount of $12.Ed. 350 F. 469. 1083. 349 F. In re Walsh. The general rule. applying California law.2d 359. 532 F. Ct.2d 469. 465. 905 (4th Cir. 230.Ct. which can perhaps be most succinctly characterized as the "legal advice" exception. In re Grand Jury Investigation (Tinari).2d 384 (5th Cir. then the privilege should extend to such identification in the absence of another factors. 77. 548 F. See: In re Grand Jury Proceedings (Pavlick). 517 F.2d 1101. one that obtains when the disclosure of the client's identity by his attorney would have supplied the last link in an existing chain of incriminating evidence likely to lead to the client's indictment. 144 F.Ed. 600 F.2d at 365 n. 951. In re Grand Jury Proceedings (Fine). 623 F.S.2d 359. at 670 n.

the order compelling them to reveal the identity of their client. In the case at bar. 15 and U S v. In ruling that petitioners need not further establish the factual basis of their claim that they fall within the exceptions to the general rule. It appeared that the taxpayers' returns of previous years were probably incorrect and the taxes understated. . I respectfully submit that the first and third exceptions relied upon by the majority are not self-executory but need factual basis for their successful invocation. In the case at bar. 14 Without the proofs adduced in these in camera hearings. . The first exception as cited by the majority is ". 16 but these cases leave no doubt that the "very activity" for which the client sought the advice of counsel was properly proved. an election official. 1985" in connection with its "Opposition to Respondents" Motion for Reconsideration or for Clarification of the Resolution of the Court En Banc of October 8. vs. paid by persons who thereby admitted they had not paid a sufficient amount in income taxes some one or more years in the past. Thus. 1985. in the word of Baird. 12 When these facts can be presented only by revealing the very information sought to be protected by the privilege. 77054. Petitioner Bank filed in the instant case a "Motion to Pay Back Salaries to All BF Officers and Employees from February to August 29." The silent implication is unflattering and unfair to petitioners who are marquee names in the legal profession and unjust to their undisclosed client. the records do not show that the subject matter is criminal in character except for the raw allegations in the Complaint. RESOLUTION On November 4. Finally." 17 In Hodge. the Court held: The facts of the instant case bring it squarely within that exception to the general rule. there is no evidence about the subject matter of the consultation made by petitioners' client. this Court referred said motion to pay back salaries to Branch 136 (Judge Ricardo Francisco. by revealing the client's name." On November 7. 1986. 20 Once more. 1986. the procedure is for the lawyer to move for an inspection of the evidence in an in camera hearing. should be done. after considering the petitioner's motion of November 4. It is the link. in Enzor. 1985. Hodge and Zweig. In both cases. it cannot be gainsaid that petitioners have not adduced evidence that they fall within any of the above mentioned exceptions for as aforestated. under the third main exception. it is clear that the Baird court was informed of the activity of the client for which the lawyer was consulted and the activity involved probable violation of the tax laws. as related by the majority itself. hence. I also respectfully submit that there is no immediate necessity to resolve petitioners' claim to equal protection of the law at this stage of the proceedings. Certainly the payment and the feeling of guilt are the reasons the attorney here involved was employed — to advise his clients what. The names of the clients are useful to the government for but one purpose — to ascertain which taxpayers think they were delinquent. The voluntary nature of the payment indicates a belief by the taxpayers that more tax or interest or penalties are due than the sum previously paid. No. 1986. this is the unstated predicate of the majority ruling that revealing the identity of the client ". to conduct hearings on the matter of the closure of petitioner Bank and its alleged pre-planned liquidation. In Baird." On February 4. respondents. there is no inkling whatsoever about the "very activity" for which the clients of petitioners sought their professional advice as lawyers. I respectfully register a qualified dissent from the majority opinion. Here money was received by the government. On January 22. IN VIEW WHEREOF. it has been held that "a well-recognized means for an attorney to demonstrate the existence of an exception to the general rule. The complaint did allege that petitioners and their client conspired to commit crimes but allegations are not evidence. . Furthermore. under the circumstances. Koerner 19 does not support the "no need for evidence" ruling of the majority. so that it may check the records for that one year or several years. it ought to be obvious that petitioners' right to claim the attorney-client privilege is resolutory of the Complaint against them. the Sandiganbayan did not recognize the exceptions. which is privileged information. 1986. So it is with the third exception which as related by the majority is "where the government's lawyers have no case against an attorney's client unless. would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime." 18 Again. . though whether it is criminal guilt is undisclosed. the factual basis for the ruling in Baird was properly established by the parties. No." It seems to me evident that "the very activity for which he sought the lawyer's advice" is a question of fact which must first be established before there can be any ruling that the exception can be invoked. protects the subject matter or the substance (without which there would be no attorney-client relationship).34 the privilege. informed his attorney in confidence that he had been offered a bribe to violate election laws or that he had accepted a bribe to that end. 70054 July 8. 13 The hearing can even be in camera and ex-parte.. the majority opinion states that the "unidentified client. Thus. "a lawyer was consulted by the accountants and the lawyer of certain undisclosed taxpayers regarding steps to be taken to place the undisclosed taxpayers in a favorable position in case criminal charges were brought against them by the US Internal Revenue Service (IRS). disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case. the "very activity" of the clients reveal they sought advice on their criminal activities. 1986 BANCO FILIPINO. because the privilege. and the respondents' Rejoinder dated January 20. petitioner. Yet. The majority cites Ex Parte Enzor. Pursuant to the rule in legal hermeneutics that courts should not decide constitutional issues unless unavoidable. said Regional Trial Court. . as stated earlier. presiding) of the Makati Regional Trial Court. In the case at bar. crime. 1985. Again. 1986.R. the rhetorical questions that answer themselves are: (1) how can we determine that PCGG has "no case" against petitioners without presentation of evidence? and (2) how can we determine that the name of the client is the only link without presentation of evidence as to the other links? The case of Baird vs. It indicates a feeling of guilt for nonpayment of taxes. which this Court had earlier directed under our Resolution of October 8. 1986. MONETARY BOARD. order to Pay Back Salaries dated 22 January 1986" praying for the reversal and setting aside of the aforestated trial court's Order dated January 22. where a strong probability exists that revealing the clients' name would implicate that client in the very activity for which he sought the lawyer's advice. where none otherwise exists. But it may well be the link that could form the chain of testimony necessary to convict an individual of a federal crime. the majority held: The circumstances involving the engagement of lawyers in the case at bench therefore clearly reveal that the instant case falls under at least two exceptions to the general rule. 1985. 1986. In fine. if any. the respondents' opposition thereto dated January 15. and hence should be decided ahead and independently of their claim to equal protection of the law. on March 26. There is nothing in the records that petitioners were consulted on the "criminal activities" of their client. the "very activity" of the clients deals with illegal importation of drugs. revelation of the client's name would obviously provide the necessary link for the prosecution to build its case. respondents herein filed with this Court an "Appeal from. 1985.R. ET AL. the petitioner's Reply dated January 16. the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime. respondents filed their "Reply to the Answer" which petitioner traversed in a "Rejoinder to the Reply" dated April 2. 1985 issued in G. is to move the court for an in camera ex-parte hearing. G. A month later. . . the Court has no factual basis to determine whether petitioners fall within any of the exceptions to the general rule. First. issued an order directing the respondents herein "to pay all officers and employees of petitioner their back salaries and wages corresponding to the period from February to August 29. Thus. or Petition to Set Aside. 1986. "that would inevitably form the chain of testimony necessary to convict the (client) of a . 1986. This was formally opposed by Petitioner when it filed its "Answer to Appeal (re: back salaries)" on February 26. while simultaneously preserving confidentiality of the identity of his client.

no controversy would be expected in the matter of the payment of said back salaries because in the instant case. IV of Case Records) that: 2. objections. 1985. The attendant circumstances here present have. Schedule of BF's realizable assets from P5. It is also averred that BF intends to reopen its bank and branches. and Mrs. 1985. granting the motion of the petitioner herein. Regional Trial Court. to allow the aforestated Order to remain undisturbed and to DISMISS the appeal therefrom. However. no such prior hearing had been called as none is required by the law and by the Supreme Court decisions in force to this date (Rural Bank of Lucena. G. in this case a significant matter that deserves consideration of this Court and which must be viewed from the stand-point of equity. Makati. Carlota Valenzuela dated October 25. 1984. there is money sufficient to allow the withdrawal of the sums needed to pay the salaries of the employees who have been now out of work for over a year. however. for the reasons of equity. No. the trial court saw no reason why said documents should be thus concealed from it. 1985 of Judge Ricardo Francisco. WHEREFORE. Tiaoqui's report. 1985. Adjustment per Annex "C" of Mr. apart from doing justice to those aggrieved employees. 65642. 15 SCRA 66. vs. created a peculiar situation. In issuing the challenged order. G. Annexes"A". It is but fair that the issue whether or not the employees of petitioner Bank had actually worked during said period should now be discounted considering this voluntary act of respondent Monetary Board which would remove by estoppel any impediment to the receipt by all bank employees of their back salaries from January 25. There is. 1985."B". of the Rules of Court. Tiaoqui's report dated March 19. RESOLUTION Subject of this "Petition to Set Aside Order to Produce Documents dated 17 February 1986" is the Order of Branch 136. It is mentioned that the Central Bank Liquidator has now more than a billion pesos in cash of Banco Filipino since it continued to receive payments from BF borrowers some P1.R. There is resistance to the claim because the management of the assets of the Bank has been transferred to the Respondents' Receiver who perceived that the directive to pay back salaries after closure of the Bank would be dissipation of the banks' assets to the prejudice of its various creditors. assuming that some of them have not yet received the same. .23 B as of January 25. ruling that the Order of November 7. thereto. Aurellano. Schedule of devaluation of CB premises of Paseo de Roxas of same report. Documents listed in BF's letter to Mrs. 1985. regardless of whether the employees of Banco Filipino worked or not after January 25. granting salary to the officers and employees of Banco Filipino for the period from February. These materials are said to comprise of records of the administrative proceedings conducted by respondent's officials and representatives from the inception of and preparation of the challenged reports and the resolution placing petitioner under receivership and thereafter under liquidation as it is the regularity and impartiality of these administrative proceedings which are being assailed by the petitioner. 1985. What stands out is that. based on Section 1.. Rule 27. 1985 up to June.5 million a day. Arca. and Rural Bank of Bato vs.159. dated February 26. J. Mr. 1985. 1985. 1985 manifestly deserve and ought to be similarly paid by the respondent Monetary Board. Inc. Tiaoqui. Apparently. and exceptions to the Conservator's report dated January 8. (2) (3) (4) (5) (6) (7) (8) (9) Copies of tapes and transcripts of the Monetary Board (MB) deliberations on the closure of Banco Filipino (BF) and its meeting on July 27. no less would help in the preservation of its personnel which is the bank's most important assest. 1984). vs. Papers showing computations of all the interests and penalties charged by the CB against BF. This Order is immediately held executory. there is the uncontested manifestation found in BF's Answer to the Appeal. Basilio Estanislao.44 B to P3. 1985 up to August. the appealed order of November 7. As the remaining period from June. Valenzuela. In the fact the receiver/liquidator Carlota Valenzuela had paid Union employees of petitioner BF back salaries for no work from January 25. 1985 to June. Respondents Monetary Board and Central Bank take exception to the said order and pray in their petition before this Court for the reversal and setting aside of the same. covers but a minimal span of two (2) months. 1985 to August. 1985. and the payment of back salaries to its employees. It considered the documents sought to be produced as not privileged because these constitute or contain evidence material to the issues into by the Court. to the MB and to Central Bank Governor Jose Fernandez. 1986 (Vol. and inasmuch as the appealed Order for the payment of back salaries is only for a limited period or up to August. the Court RESOLVES. however. (2) The tapes and transcripts of the Monetary Board deliberations are confidential pursuant to Sections 13 and 15 of the Central Bank Act. no substantial prejudice for the payment of the distressed employees of the bank for only a specified limited period until the other issues in the consolidated consideration. 15. may now be deemed moot and academic insofar as it relates to the period from January 25.. 1985 up to June. ET AL. Schedule of recommended valuation of reserves per Mr. The documents now asked to be produced. it does so simply upon the charge that no "hearing" was given BF prior to those actions of closure and liquidation. 1985. 1985 to August 29.. and copied are the following: (1) 22. respondents. the party praying for the same is the employer Bank. and copying of certain papers and records which are claimed as needed by the Petitioner Bank for the preparation of its comments. (Emphasis supplied) All employees. inspected. The grounds recited in support of their petition are the following: (1) The ratiocination of the trial court is wholly in error because the proceedings before it do not at all deal with either the administrative proceedings conducted by the respondents or the regularity and impartiality of the CB actions on BF. involves but a minimal period only of two (2) months.. Mr. 1985 up to June. petitioner.909. of petitioner Banco Filipino who have not yet received their back salaries corresponding to the period from January 25. Oct. 1985 may be sustained. It is also said that with the deposits of petitioner BF with the Bank of PI. and Receiver's Report dated March 19. and March Copies of the letter and reports of first conservator. 1985. 1985. Petitioner BF and its stockholders have long put on record their consent to this patment of back salaries of its separated officers and employees. IAC. the court below took the view that the Supreme Court's resolution referring to it the matters relative to the bank's closure does not preclude the petitioner from availing of this mode of discovery as an additional means of preparing for the hearing. . 70054 July 8.and"C"of the joint report of Mr. 1986 BANCO FILIPINO. Gutierrez Jr.35 In a normal situation.R. for the production. and considering the unfortunate plight of the numerous employees who now invoke the symphathetic concern of this Court. took no part. MONETARY BOARD. inspection. 1985.

of the Rules of Court. The motion for the production of the subject documents was filed by petitioner pursuant to Section 1." (4) The requested documents and records of the Central Bank are material and relevant because BF is entitled to prove from the CB records (a) that Governor Fernandez closed BF without a MB resolution and without examiner's reports on the financial position of BF. 13 and 15 of the Central Bank Act. "The test to be applied by the trial judge in determining the relevancy of documents and the sufficiency of their description is one of reasonableness and practicability" (Line Corp. Madison. 2.143). that is. 2. (3) The so-called deliberations of the Monetary Board are in truth merely the individual statements and expressions of opinion of its members.S. Superior Court in and for Alameda County. the petitioner bank assails the respondent's petition on the following grounds: (1) There is no reason why Banco Filipino should not be furnished the documents. the courts should be liberal in determining whether or not documents are relevant to the subject matter of action" (Hercules Powder Co. (As amended by Presidential Decree No. 102). 418 U. In said pleading. Gilberto Teodoro. A copy of the SES Reports was furnished to the petitioner. Rule 130 of the Rules of Court because statements and opinions expressed in the deliberation of the members of the MB are specifically vested with confidentiality under Secs. (2) The Supreme Court in its referral of October 8. 176. papers which because of their confidential and privileged character could not be received in evidence" (27) CJS 224). directly or indirectly. 3 to 9 of its motion. With respect to Items Nos. Likewise. (3) The respondents cannot claim privilege in refusing to produce the Central Bank records because it is based only on the generalized interest in confidentiality. 1986. and to the use of such information for personal gain or to the detriment of the Government. 2d 879.36 Sec. copies of which were given to it pursuant to a Supreme Court order. said member shall not participate in the discussion or resolution of the matter and must retire from the meeting during the deliberation thereon. b) Petitioner has not in the least shown any relevance or need to produce the alleged MB deliberations. when resolved. II (SES) Reports submitted to the Central Bank and Monetary Board which were taken into consideration by said respondents in closing petitioner bank. Similar responsibility shall apply to the disclosure of any information of a confidential nature about the discussion or resolutions of the Monetary Board. or about the operations of the Bank. Dist. books. 3rd edition. On the other hand. therefore. vs. vs. vs. We accept the view taken by the court below that the documents are not privileged and that these constitute or contain evidence material to the issues being inquired into by the Court. We. Petitioner Banco Filipino filed its Comment on Respondent's petition to set aside the order for the production of the documents. What petitioner intends to prove are not "issues" raised in the pleadings of the main petition. when these are merely attachments to the Supervision and Examination Sector. except as required in Section 13 of this Act. cited in Moran. The "public interest" requirement for non-disclosure is evident from the fact that the statute punishes any disclosure of such deliberations. "On the ground of public policy. 59 Phil. Withdrawal of persons having a personal interest.. the so-called MB deliberations are privileged communications pursuant to Section 21. (3) The Monetary Board deliberations were necessarily held subsequent t • the submission of the CB reports. the rules providing for production and inspection of books and papers do not authorize the production or inspection of privileged matter. (d) replacing Estanislao with Gilberto Teodoro when the former wanted to resume normal operations of BF. not in discovering evidence. Vol. Moran. "In passing on a motion for discovery of documents. (b) that a MB resolution was later made to legalize the BF closure but it had no supporting examiner's report. documents and papers which are material and relevant to the establishment of his cause of action or defense" (General Electric Co. the Bank or third parties. which states that "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal case is based only on the generalized interest in confidentiality. 13. Petitioner adds that what respondents fear is disclosure of their proceedings because petitioner has accused the CB governor of (a) covering 51% of its stockholding. 9 Fed. They did not enter into the making of those reports and can have no materiality to any question of fact that may be raised in relation to their contents. Sec. The transcripts of stenographic notes on the deliberations of the MB are not official records of the CB. (Italics supplied). Vol. cited in Martin. 1944. Whenever any member attending a meeting of the Monetary Board has a material personal interest. it cannot prevail over the fundamental demands of due process of law. (c) appointing a conservator when the President ordered the MB to grant petitioner a P 3 Billion credit line. 1979 Ed. Dept. U. 713. to have an implied exception for disclosure when needed in a court of justice" (Wigmore on Evidence. VIII. "any statute declaring in general terms that official records are confidential should be liberally construed. p. 72). of the Philippines vs. It has been held that "a party is ordinarily entitled to the production of books. — Any member of the Monetary Board or officer or employee of the Central Bank who wilfully violates this Act or who is guilty of gross negligence in the performance of his duties shall be held liable for any loss or injury suffered by the Bank as a result of such violation or negligence. but in practicing oppression by the forced publication of the MB members' confidential statements at board meetings. 1986. In the light of the jurisprudence above-cited. 1986. Petitioner cites as a precedent the doctrine established in the case of U. and (d) that the reports were then fabricated. Haas Co. (c) that the earlier reports did not satisfy respondent Governor Fernandez and he ordered the examiners and the conservator. Vol. 45 C. and the fact that a member had a personal interest in it. It (SES) Reports. Nixon and the other decisions cited by petitioner are inapplicable because- a) The authorities cited refer only to a claim of privilege based only on the generalized interest of confidentiality or on an executive privilege that is merely presumptive. The subject matter. Ct. Oct. (As amended by PD No. The minutes of the meeting shall note the withdrawal of the member concerned. the tape recordings are not available as these are used over and over again. 1 Cr.S.S. 137. and (e) changing the conservatorship to receivership when it appointed Carlota Valenzuela as receiver again without hearing.S. p. 801. Comments on the Rules of Court. these are the annexes to the Supervision and Examination Sector. On April 16. fail to see any proper reason why the annexes thereto should be withheld. (2) Petitioner is interested. 683. Rules Service. to "improve" them. And as advertedly also. vs. (b) encashing BF securities in trickles as fuel a run. the trial court being better equipped for evidence taking. Respondents argue that: (1) The case of U. 1985 to the RTC Makati intended full evidence taking of the proceeding for judicial review of administrative action filed with the Supreme Court. Rules of Court. 104). they are taken merely to assist the Secretary of the MB in the preparation of the minutes of the meetings. Petitioner cannot adequately study and properly analyze the report without the corresponding . On May 13. shall be made available to the public. this Court holds that no grave abuse of discretion was committed by the court below in granting petitioner's motion for the production of the documents enumerated herein. particularly Nos. Responsibility. 26. 3 to 9. 180). citing the case of Marbury vs. Respondent Monetary Board filed their Reply to Petitioner Bank's Comment dated April 15. in the discussion or resolution of any given matter. Nixon. p. Dept. 1827). 659. Rule 27. 15. They are not statements or opinions that can be imputed to the board itself or to the Central Bank.

Regarding copies of the letter and reports of first Conservator. . except as to the copies of the tapes relative to the Monetary Board deliberations on the closure of Banco Filipino on January 25.R. Where there is no public interest that would be prejudiced. Vol. 206. is hereby affirmed. however. it means something in which the public. there should be nothing at all that would provoke fear of disclosure On the contrary. pp. dated May 12. No. The deliberations may be confidential but not necessarily absolute and privileged.( Agnew vs. respondents contend that "it is obvious from the requirement (Sections 13 and 15 of the Central Bank Act) that the subject matter (of the deliberations).. these could be useful and even necessary to the preparation by petitioner of its comment. 1). 5. and transcripts at this time pose no danger or peril to our economy. 1985. used over and over again inasmuch as these tapes are not required to be kept or stored.. . 1980 Ed. and March 22. Gilberto Teodoro. The letter and reports could be favorable or adverse to the case of petitioner but whatever the result may be. 5. which prohibits absolutely the courts from conducting an inquiry on said deliberations when these are relevant or material to a matter subject of a suit pending before it. As to the tapes and transcripts of the Monetary Board deliberations on the closure of Banco Filipino and its meetings on July 27.'52 SD 472. Significantly. to the Monetary Board and to Central Bank Governor Fernandez (Item No. even in Sections 13 and 15 thereof. 229).37 annexes. 2) these appear relevant as petitioner has asserted that the above-named Conservator had in fact wanted to resume normal operations of Banco Filipino but then he was thereafter replaced by Mr. Neither will it trigger any bank run nor compromise state secrets. any disclosure of the aforementioned letters. sees it in a different light." This Court. The disclosure is here not intended to obtain information for personal gain. as this Court notes. If the respondents public officials acted rightfully and prudently in the performance of their duties. 1985. Vol. 816 cited in Words and Phrases. 1984. 211). has some pecuniary interest by which their legal rights or liabilities are affected (State vs. Crocket. 1984. and March 22. It will be well to consider that — Public interest means more than a mere curiosity. IV. Comments on the Rules of Court. Respondent's reason for their resistance to the order of production are tenuous and specious. In the case at bar. . Rules of Court which states: Section 21. The rule that a public officer cannot be examined as to communications made to him in official confidence does not apply when there is nothing to show that the public interest would suffer by the disclosure question. is intended not for the protection of public officers but for the protection of public interest (Vogel vs. reports. petitioner should be allowed to photocopy the same. 70054. IN VIEW OF ALL THE FOREGOING. There is no indication that such disclosure would cause detriment to the government. p. 1985 and its meetings on July 27. On the other hand. Agnew. 1288-1289). Rollo.S.C. 1985 and only if such tapes are actually no longer available taking into account respondent Monetary Board's manifestations that the tape recording of the deliberations of that Board are. (Item No. the community at large. 311 cited in Moran.G. 35. Not only the banks and its employees but also its numerous depositors and creditors are entitled to be informed as to whether or not there was a valid and legal justification for the petitioner's bank closure. Basilio Estanislao. 1986. Mr. as to communications made to him in official confidence. Gruaz 110 U. Vol. objections and exceptions to the Conservator's reports and receiver's reports. Vol. SO ORDERED. . public interests will be best served by the disclosure of the documents. Third Edition. it is the bank itself here that is interested in obtaining what it considers as information useful and indispensably needed by it to support its position in the matter being inquired to by the court below. 1986 issued by the court below in S. the order to produce documents dated February 17. p. to the bank or to third parties. Privileged Communications. for purposes of economy. . There is no specific provision in the Central Bank Act. But this privilege. when the court finds that the public interest would suffer by disclosure. respondents cite Section 21. Rule 130. Considering that petitioner bank was already closed as of January 25. p. the respondents have not established that public interest would suffer by the disclosure of the papers and documents sought by petitioner. The following persons cannot testify as to matters learned in confidence in the following cases: xxx xxx xxx (e) A public officer cannot be examined during his term of office or afterwards. (See Respondent's Reply. when resolved. cited in Martin Rules of Court of the Philippines. this invoked rule will not be applicable. 199). Pertinent and relevant. p.. shall be made available to the public but the deliberations themselves are not open to disclosure but are to be kept in confidence.

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