EN BANC

[G.R. Nos. 115439-41. July 16, 1997]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE

SANDIGANBAYAN, MANSUETO V. HONRADA, CEFERINO S.
PAREDES, JR. and GENEROSO S. SANSAET, respondents.

DECISION
REGALADO, J.:

Through the special civil action for certiorari at bar, petitioner seeks the
annulment of the resolution of respondent Sandiganbayan, promulgated on
December 22, 1993, which denied petitioners motion for the discharge of
respondent Generoso S. Sansaet to be utilized as a state witness, and its
resolution of March 7, 1994 denying the motion for reconsideration of its
preceding disposition. [1]

The records show that during the dates material to this case, respondent
Honrada was the Clerk of Court and Acting Stenographer of the First
Municipal Circuit Trial Court, San Francisco-Bunawan-Rosario in Agusan del
Sur. Respondent Paredes was successively the Provincial Attorney of Agusan
del Sur, then Governor of the same province, and is at present a
Congressman. Respondent Sansaet was a practicing attorney who served as
counsel for Paredes in several instances pertinent to the criminal charges
involved in the present recourse.
The same records also represent that sometime in 1976, respondent
Paredes applied for a free patent over Lot No. 3097-A, Pls-67 of the Rosario
Public Land Subdivision Survey. His application was approved and, pursuant
to a free patent granted to him, an original certificate of title was issued in his
favor for that lot which is situated in the poblacion of San Francisco, Agusan
del Sur.
However, in 1985, the Director of Lands filed an action for the [2]

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. The trial court rendered judgment nullifying said patent
[3]

and title after finding that respondent Paredes had obtained the same through
fraudulent misrepresentations in his application. Pertinently, respondent
Sansaet served as counsel of Paredes in that civil case. [4]

Consequent to the foregoing judgment of the trial court, upon the

subsequent complaint of the Sangguniang Bayan and the preliminary
investigation conducted thereon, an information for perjury was filed against[5]

respondent Paredes in the Municipal Circuit Trial Court. On November 27,

[6]

1985, the Provincial Fiscal was, however, directed by the Deputy Minister of
Justice to move for the dismissal of the case on the ground inter alia of
prescription, hence the proceedings were terminated. In this criminal case,
[7]

respondent Paredes was likewise represented by respondent Sansaet as

counsel.
Nonetheless, respondent Paredes was thereafter haled before the
*

Tanodbayan for preliminary investigation on the charge that, by using his

former position as Provincial Attorney to influence and induce the Bureau of
Lands officials to favorably act on his application for free patent, he had
violated Section 3(a) of Republic Act No. 3019, as amended. For the third
time, respondent Sansaet was Paredes counsel of record therein.
On August 29, 1988, the Tanodbayan, issued a resolution recommending [8]

the criminal prosecution of respondent Paredes. Atty. Sansaet, as counsel for

his aforenamed co-respondent, moved for reconsideration and, because of its
legal significance in this case, we quote some of his allegations in that motion:

x x x respondent had been charged already by the complainants before the Municipal
Circuit Court of San Francisco, Agusan del Sur, went to jail on detention in 1984
under the same set of facts and the same evidence x x x but said case after
arraignment, was ordered dismissed by the court upon recommendation of the
Department of Justice. Copy of the dismissal order, certificate of arraignment and
the recommendation of the Department of Justice are hereto attached for ready
reference; thus the filing of this case will be a case of double jeopardy for respondent
herein x x x. (Italics supplied.)
[9]

A criminal case was subsequently filed with the Sandiganbayan charging [10]

respondent Paredes with a violation of Section 3(a) of Republic Act No. 3019,
as amended. However, a motion to quash filed by the defense was later
granted in respondent courts resolution of August 1, 1991 and the case was
[11]

dismissed on the ground of prescription.

On January 23, 1990, one Teofilo Gelacio, a taxpayer who had initiated
the perjury and graft charges against respondent Paredes, sent a letter to the
Ombudsman seeking the investigation of the three respondents herein for
falsification of public documents. He claimed that respondent Honrada, in
[12]
conspiracy with his herein co-respondents, simulated and certified as true
copies certain documents purporting to be a notice of arraignment, dated July
1, 1985, and transcripts of stenographic notes supposedly taken during the
arraignment of Paredes on the perjury charge. These falsified documents
[13]

were annexed to respondent Paredes motion for reconsideration of the

Tanodbayan resolution for the filing of a graft charge against him, in order to
support his contention that the same would constitute double jeopardy.
In support of his claim, Gelacio attached to his letter a certification that no
notice of arraignment was ever received by the Office of the Provincial Fiscal
of Agusan del Sur in connection with that perjury case; and a certification of
Presiding Judge Ciriaco Ario that said perjury case in his court did not reach
the arraignment stage since action thereon was suspended pending the
review of the case by the Department of Justice. [14]

Respondents filed their respective counter-affidavits, but Sansaet

subsequently discarded and repudiated the submissions he had made in his
counter-affidavit. In a so-called Affidavit of Explanations and
Rectifications, respondent Sansaet revealed that Paredes contrived to have
[15]

the graft case under preliminary investigation dismissed on the ground of

double jeopardy by making it that the perjury case had been dismissed by the
trial court after he had been arraigned therein.
For that purpose, 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. To evade
responsibility for his own participation in the scheme, he claimed that he did
so upon the instigation and inducement of respondent Paredes. This was
intended to pave the way for his discharge as a government witness in the
consolidated cases, as in fact a motion therefor was filed by the prosecution
pursuant to their agreement.
Withal, in a resolution dated February 24, 1992, the Ombudsman
[16]

approved the filing of falsification charges against all the herein private
respondents. The proposal for the discharge of respondent Sansaet as a state
witness was rejected by the Ombudsman on this evaluative legal position:

x x x Taking his explanation, it is difficult to believe that a lawyer of his stature, in the
absence of deliberate intent to conspire, would be unwittingly induced by another to
commit a crime. As counsel for the accused in those criminal cases, Atty. Sansaet had
control over the case theory and the evidence which the defense was going to
present. Moreover, the testimony or confession of Atty. Sansaet falls under the mantle
of privileged communication between the lawyer and his client which may be
objected to, if presented in the trial.

The Ombudsman refused to reconsider that resolution and, ostensibly to

[17]

forestall any further controversy, he decided to file separate informations for

falsification of public documents against each of the herein
respondents. Thus, three criminal cases, each of which named one of the
[18]

three private respondents here as the accused therein, were filed in the graft
court. However, the same were consolidated for joint trial in the Second
Division of the Sandiganbayan.
As stated at the outset, a motion was filed by the People on July 27, 1993
for the discharge of respondent Sansaet as a state witness. It was submitted
that all the requisites therefor, as provided in Section 9, Rule 119 of the Rules
of Court, were satisfied insofar as respondent Sansaet was concerned. The
basic postulate was that, except for the eyewitness testimony of respondent
Sansaet, there was no other direct evidence to prove the confabulated
falsification of documents by respondents Honrada and Paredes.
Unfortunately for the prosecution, respondent Sandiganbayan, 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
prosecutions motion, resolved to deny the desired discharge on this
ratiocination:

From the evidence adduced, the opposition was able to establish that client and lawyer
relationship existed between Atty. Sansaet and Ceferino Paredes, Jr., before, during
and after the period alleged in the information. In view of such relationship, the facts
surrounding the case, and other confidential matter must have been disclosed by
accused Paredes, as client, to accused Sansaet, as his lawyer in his professional
capacity. Therefore, the testimony of Atty. Sansaet on the facts surrounding the
offense charged in the information is privileged. [19]

Reconsideration of said resolution having been likewise denied, the [20]

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.
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, is barred by the attorney-client privilege;
and (2) whether or not, as a consequence thereof, he is eligible for discharge
to testify as a particeps criminis.
 I

As already stated, respondent Sandiganbayan ruled that due to the

lawyer-client relationship which existed between herein respondents Paredes
and Sansaet during the relevant periods, the facts surrounding the case and
other confidential matters must have been disclosed by respondent Paredes,
as client, to respondent Sansaet, as his lawyer. Accordingly, it found no
reason to discuss it further since Atty. Sansaet cannot be presented as a
witness against accused Ceferino S. Paredes, Jr. without the latters consent. [21]

The Court is of a contrary persuasion. The attorney-client privilege cannot

apply in these cases, as the facts thereof and the actuations of both
respondents therein constitute an exception to the rule. For a clearer
understanding of that evidential rule, we will first sweep aside some distracting
mental cobwebs in these cases.
1. It may correctly be assumed that there was a confidential
communication made by Paredes to Sansaet in connection with Criminal
Cases Nos. 17791-93 for falsification before respondent court, and this may
reasonably be expected since Paredes was the accused and Sansaet his
counsel therein. Indeed, the fact that Sansaet was called to witness the
preparation of the falsified documents by Paredes and Honrada was as
eloquent a communication, if not more, than verbal statements being made to
him by Paredes as to the fact and purpose of such falsification. It is significant
that the evidentiary rule on this point has always referred to any
communication, without distinction or qualification.[22]

In the American jurisdiction from which our present evidential rule was
taken, there is no particular mode by which a confidential communication shall
be made by a client to his attorney. The privilege is not confined to verbal or
written communications made by the client to his attorney but extends as well
to information communicated by the client to the attorney by other means. [23]

Nor can it be pretended that during the entire process, considering their
past and existing relations as counsel and client and, further, in view of the
purpose for which such falsified documents were prepared, no word at all
passed between Paredes and Sansaet on the subject matter of that criminal
act. The clincher for this conclusion is the undisputed fact that said documents
were thereafter filed by Sansaet in behalf of Paredes as annexes to the
motion for reconsideration in the preliminary investigation of the graft case
before the Tanodbayan. Also, the acts and words of the parties during the
[24]

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.
 2. It is postulated that despite such complicity of Sansaet at the instance of
Paredes in the criminal act for which the latter stands charged, a distinction
must be made between confidential communications relating to past crimes
already committed, and future crimes intended to be committed, by the
client. Corollarily, it is admitted that the announced intention of a client to
commit a crime is not included within the confidences which his attorney is
bound to respect. Respondent court appears, however, to believe that in the
instant case it is dealing with a past crime, and that respondent Sansaet is set
to testify on alleged criminal acts of respondents Paredes and Honrada that
have already been committed and consummated.
The Court reprobates the last assumption which is flawed by a somewhat
inaccurate basis. It is true that by now, insofar as the falsifications to be
testified to in respondent court are concerned, those crimes were necessarily
committed in the past. But for the application of the attorney-client privilege,
however, the period to be considered is the date when the privileged
communication was made by the client to the attorney in relation to either a
crime committed in the past or with respect to a crime intended to be
committed in the future. In other words, if the client seeks his lawyers advice
with respect to a crime that the former has theretofore committed, he is given
the protection of a virtual confessional seal which the attorney-client privilege
declares cannot be broken by the attorney without the clients consent. The
same privileged confidentiality, however, does not attach with regard to a
crime which a client intends to commit thereafter or in the future and for
purposes of which he seeks the lawyers advice.
Statements and communications regarding the commission of a
crime already committed, made by a party who committed it, to an attorney,
consulted as such, are privileged communications. Contrarily, the unbroken
stream of judicial dicta is to the effect that communications between attorney
and client having to do with the clients contemplated criminal acts, or in aid or
furtherance thereof, are not covered by the cloak of privileges ordinarily
existing in reference to communications between attorney and
client. (Emphases supplied.)
[25]

3. In the present cases, the testimony sought to be elicited from Sansaet

as state witness are the communications made to him by physical acts and/or
accompanying words of Paredes at the time he and Honrada, either with the
active or passive participation of Sansaet, were about to falsify, or in the
process of falsifying, the documents which were later filed in the Tanodbayan
by Sansaet and culminated in the criminal charges now pending in respondent
Sandiganbayan. Clearly, therefore, the confidential communications thus
made by Paredes to Sansaet were for purposes of and in reference to the
crime of falsification which had not yet been committed in the past by Paredes
but which he, in confederacy with his present co-respondents, later
committed. Having been made for purposes of a future offense, those
communications are outside the pale of the attorney-client privilege.
4. Furthermore, Sansaet was himself a conspirator in the commission of
that crime of falsification which he, Paredes and Honrada concocted and
foisted upon the authorities. It is well settled that in order that a
communication between a lawyer and his client may be privileged, it must be
for a lawful purpose or in furtherance of a lawful end. The existence of an
unlawful purpose prevents the privilege from attaching. In fact, it has also
[26]

been pointed out to the Court that the prosecution of the honorable relation of
attorney and client will not be permitted under the guise of privilege, and every
communication made to an attorney by a client for a criminal purpose is a
conspiracy or attempt at a conspiracy which is not only lawful to divulge, but
which the attorney under certain circumstances may be bound to disclose at
once in the interest of justice.[27]

It is evident, therefore, 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. To prevent a conniving counsel from revealing the genesis of a
crime which was later committed pursuant to a conspiracy, because of the
objection thereto of his conspiring client, would be one of the worst travesties
in the rules of evidence and practice in the noble profession of law.
II

On the foregoing premises, we now proceed to the consequential inquiry

as to whether respondent Sansaet qualifies, as a particeps criminis, for
discharge from the criminal prosecution in order to testify for the
State. Parenthetically, respondent court, having arrived at a contrary
conclusion on the preceding issue, did not pass upon this second aspect and
the relief sought by the prosecution which are now submitted for our resolution
in the petition at bar. We shall, however, first dispose likewise of some
ancillary questions requiring preludial clarification.
1. 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. Where the determinative facts and evidence have been submitted
to this Court such that it is in a position to finally resolve the dispute, it will be
in the pursuance of the ends of justice and the expeditious administration
thereof to resolve the case on the merits, instead of remanding it to the trial
court.[28]

2. A reservation is raised over the fact that the three private respondents
here stand charged in three separate informations. It will be recalled that in its
resolution of February 24, 1992, the Ombudsman recommended the filing of
criminal charges for falsification of public documents against all the
respondents herein. That resolution was affirmed but, reportedly in order to
obviate further controversy, one information was filed against each of the
three respondents here, resulting in three informations for the same acts of
falsification.
This technicality was, however, sufficiently explained away during the
deliberations in this case by the following discussion thereof by Mr. Justice
Davide, to wit:

Assuming no substantive impediment exists to block Sansaets discharge as state

witness, he can, nevertheless, be discharged even if indicted under a separate
information. I suppose the three cases were consolidated for joint trial since they were
all raffled to the Second Division of the Sandiganbayan.Section 2, 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, or involving common
questions of law and fact. Accordingly, for all legal intents and purposes, Sansaet
stood as co-accused and he could be discharged as state witness. It is of no moment
that he was charged separately from his co-accused. While Section 9 of Rule 119 of
the 1985 Rules of Criminal Procedure uses the word jointly, which was absent in the
old provision, the consolidated and joint trial has the effect of making the three
accused co-accused or joint defendants, especially considering that they are charged
for the same offense. In criminal law, persons indicted for the same offense and tried
together are called joint defendants.

As likewise submitted therefor by Mr. Justice Francisco along the same

vein, there having been a consolidation of the three cases, the several actions
lost their separate identities and became a single action in which a single
judgment is rendered, the same as if the different causes of action involved
had originally been joined in a single action. [29]

Indeed, 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; 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. The word joint means common to two or more, as involving the united
activity of two or more, or done or produced by two or more working together,
or shared by or affecting two or more. Had it been intended that all the
[30]

accused should always be indicted in one and the same information, the
Rules could have said so with facility, 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. After all, the purpose of the Rule can be
achieved by consolidation of the cases as an alternative mode.
2. We have earlier held that Sansaet was a conspirator in the crime of
falsification, and the rule is that since in a conspiracy the act of one is the act
of all, the same penalty shall be imposed on all members of the
conspiracy. Now, one of the requirements for a state witness is that he does
not appear to be the most guilty. not that he must be the least guilty as is
[31] [32]

so often erroneously framed or submitted. 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.
To be sure, in People vs. Ramirez, et al. we find this obiter:
[33]

It appears that Apolonio Bagispas was the real mastermind. It is believable that he
persuaded the others to rob Paterno, not to kill him for a promised fee.Although he did
not actually commit any of the stabbings, it was a mistake to discharge Bagispas as a
state witness. All the perpetrators of the offense, including him, were bound in a
conspiracy that made them equally guilty.

However, prior thereto, in People vs. Roxas, et al., two conspirators

[34]

charged with five others in three separate informations for multiple murder
were discharged and used as state witnesses against their
confederates. Subsequent thereto, in Lugtu, et al. vs. Court of Appeals, et
al., one of the co-conspirators was discharged from the information charging
[35]

him and two others with the crime of estafa. The trial court found that he was
not the most guilty as, being a poor and ignorant man, 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, this Court held that the finding of respondent appellate court
that Lugtu was just as guilty as his co-accused, and should not be discharged
as he did not appear to be not the most guilty, is untenable. In other words,
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, and not
merely the fact that in law the same or equal penalty is imposable on all of
them.