What is executive privilege?

In the case of Romulo Neri v. Senate Committee on Accountability of Public Officers and Investigations, Senate Committee on Trade and Commerce, and Senate Committee on National Defense and Security, G.R. No. 180643, September 4, 2008, En banc the Supreme Court held:

The phrase “executive privilege” is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States.

Schwart defines executive privilege as “the power of the Government to withhold information from the public, the courts, and the Congress. Similarly, Rozell defines it as “the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.” x x x In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege:

“The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, he has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privatelyThese are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x “(Emphasis and italics supplied).

When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power – the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on he being the highest official of the executive branch, and the due respect accorded to a co-equal branch of governments which is sanctioned by a long-standing custom. (Underscoring supplied)

Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the President on a matter clearly within the domain of the Executive, the said presumption dictates that the same be recognized and be given preference or priority, in the absence of proof of a compelling or critical need for disclosure by the one assailing such presumption. Any construction to the contrary will render meaningless the presumption accorded by settled jurisprudence in favor of executive privilege.

Other privileged matters that are not mentioned by Rule 130.

Section 24 of Rule 130 draws the types of disqualification by reason of privileged communication, to wit: (a) communication between husband and wife; (b) communication between attorney and client; (c) communication between physician and patient; (d) communication between priest and penitent; and (e) public officers and public interest. There are, however, other privileged matters that are not mentioned by Rule 130. Among them are the following: (a) editors may not be compelled to disclose the source of published news; (b) voters may not be compelled to disclose for whom they voted; (c) trade secrets; (d) information contained in tax census returns; and (d) bank deposits.  (Francisco, Evidence (3rd ed., 1996), pp. 171-173; cited in the case of Air Philippines Corporation vs. Pennswell, Inc. G.R. No. 172835, December 13, 2007).

2. Testimonial Privilege

Section 25. Parental and filial privilege. – No person shall be compelled to testify against his or her parents, other direct ascendants, children or other direct descendants, except when such testimony is indispensable in a crime against that person or by one parent against the other. (25a)

Parental and filial privilege. 

No person shall be compelled to testify against his parents, other direct ascendants, children or other direct descendants. The purpose (again) is to preserve the family. “Close family ties” is one of the moral traits among the Filipino families. But once the close family ties is broken because of the crime committed by the ascendants or the descendants against the other the person shall be compelled to testify.

Illustration:  “Rich” man had children with his wife. Not satisfied with his old wife, and not satisfied with his children, Rich man procreated again but with a young lady. But this late child of “Rich” man is made to appear as the child of the old-wife in the Certificate of Live Birth, though they are not. Old wife died. Thereafter, the original children filed a petition for the deletion from the certificate of live birth of Emma Lee, another child of Rich man, to erase the name of their mother and instead to put the name of the real mother. The original children moved for the issuance of subpoena against the real mother of Emma. But the real mother objected. In her objection, she claimed that she is the stepmother of child (Emma) and she should not be compelled to testify. (Gusto kasing palabasin ng kabit na ang real mother ni Emma ay si old wife, kaya sinabi niyang stepmother siya. Pero siya talaga ang nanay ni Emma. Sinabi ng kabit na stepmother siya at hindi tunay na mother para [siguro] makamana si Emma kay old wife). (Emma K. Lee vs CA, July 13, 2010). Question: Is Section 25 (above) applicable to stepmother?

Answer: NOT applicable. The stepmother cannot invoke Section 25 because it provides:

Section 25. Parental and filial privilege. – No person shall be compelled to testify against his or her parents, other direct ascendants, children or other direct descendants, except when such testimony is indispensable in a crime against that person or by one parent against the other. (25a)

Clearly, the privilege is not extended to the stepmother. The rule applies only to direct descendants and ascendants, a family tie connected by a common ancestry. A stepdaughter has no common ancestry by her stepmother. Article 965 of the Civil Code is the guide:

“Art. 965 The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends.  

Hence, the step-mother can be compelled to testify against step-daughter. (Emma K. Lee v Court of Appeals, G.R. No. 177861, July 13, 2010).

Q. Is this section applicable even if the relationship is illegitimate?

A. YES, this section is applicable. Section 25 did not distinguish whether legitimate or illegitimate, but it is not applicable to “step-relationship”.

Q. How to avail or apply this Section 25?

A. The party concern must make the objection on time. If the objection is overruled and the witness was allowed to testify, the next remedy is to ask personally the intended witness whether he or she will testify against his/her parents or against his/her children as the case may be. By this time, the witness may change the mind and later on will not testify. If the witness is having difficulty in answering the question, the court should give sufficient time for the witness to think it over and meditate, then ask for a resetting the case. To illustrate:

Counsel for the plaintiff: Your Honor, the witness to be presented against the defendant is the child of the defendant.

Counsel for the defendant: Objection Your Honor! Under Section 25, Rule 130 of the Rules on Evidence provided the Parental and Filial Privilege which states that: “No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants”.

Court: Objection overruled. A child can be a witness against the defendant-parent.

Author’s advice: In this illustration, once the child is already on the witness stand, the counsel for the defendant, with the permission of the court, should ask the child-witness a preliminary question whether the child wants to testify against his or her own parent. If the child is having difficulty in deciding whether to testify or not, then the counsel for the defendant should move for a resetting of the case. The purpose of the resetting is to give a child more time to think whether he/she will testify against the parent. (The judge should exercise sound discretion bearing in his/her mind the family and the relations between the defendant and the intended witness. The family is very important to all its immediate members).

Moreover, there is a philosophy of law that – “[i}n all actions concerning children . . . the best interests of the child shall be a primary consideration. Thus, a parent must give due weight to a child’s views. Moreover, a child must be respected as an active person in their own right with their own concerns, interests, and points of view, and should not be treated as a parent’s possession or merely as an object of concern.” (Cited in the case of Sps. Melchor and Yolanda Dorao v. Sps. BBB and CCC, by themselves and as Natural Guardian of their Minor Daughter, G.R. No. 235737, April 26, 2023).

Spousal and filial privilege applied in this case.

“Vivian A. Sanchez (Vivian) and her children became the persons of interest and were put under surveillance by the respondent Philippine National Police (PNP). The husband of Vivian is suspected of member of the New People’s Army (NPA), thereby “creating a real threat to their life, liberty, or security”. Accordingly, Vivian filed a petition for Writ of Amparo. The petition is GRANTED and a PERMANENT PROTECTION ORDER is issued prohibiting respondent-members of the PNP from monitoring or surveilling petitioner Vivian A. Sanchez and her children – Scarlet Sanchez Labinghisa and Star Sanchez Labinghisa. The respondent police officers are reminded to uphold the rights of citizens as contained in the Constitution.

The continued drive against communists – with President Rodrigo Duterte even proclaiming that the New People’s Army posed a bigger threat than extremist groups (Gabriel Pabico Lalu, Terrorism is top PH threat, NPA is worse than Abu Sayyaf-Duterte. INQUIRER.NET, June 23, 2020, < https://newsinfo.inquirer.net/1295870/terrorism-is-number-oneproblem-npa-worse-than-abu-sayyaf > (last accessed on June 23, 2020) puts petitioner and her children in a dangerous position, because while the PNP deny surveilling petitioner and her children, they nonetheless admit that as the family members of a communist, they were proper subjects of investigation.

The Supreme Court held that while the PNP have the mandate to investigate, their duty must be balanced with petitioner’s fundamental rights. The PNP must also take into account that petitioner and her children are not ordinary witnesses, as seen by the privileges of testimony (Rules of Court, Rule 130, Sec. 23) and communications (Rules of Court Rule 130 Section 24) that they enjoy. Hence, Vivian’s relationship with her husband protects her from any inquiries on his supposed communist activities. Whatever information PNP may have wished to obtain from petitioner or her children, as witting or unwitting witnesses, is protected by spousal and filial privilege”. (In the matter of petition for Writ of Amparo of Vivian A. Sanchez. Vivian A. Sanchez v. PSUPT. March Anthony D. Darroca, Chief of Police, San Jose Municipal Station, G.R. No. 242257, June 15, 2021, En banc).

Leave a Reply

Your email address will not be published. Required fields are marked *