Will the privileged communication rule apply to COMELEC

Chairman Andres Bautista?

The troubled marriage of Commission on Elections

Chairman Andres Andy Bautista was put in the spotlight
after his wife, Patricia Tish Cruz-Bautista, made public some
documents she found in their house that may reveal her
husband's dubious activities.

Tish executed an affidavit alleging that her estranged

husband has amassed about P1 billion in unexplained wealth,
which is not declared in his Statement of Assets, Liabilities
and Net Worth, a public declaration required of government
officials. According to her, this could lead to Andys criminal
prosecution for violations of the Anti-Graft Law and the Anti-
Money Laundering Act; disbarment for unethical practice; and
impeachment for dishonesty in his statement of assets and
liabilities (SALN) and for betrayal of public trust.

Charging Andy with the said crimes in which the

penalty includes removal and/or disqualification from holding
a public office would automatically oust him from his office
which, according to the Constitution, can be done only
through impeachment.

Soon enough, an impeachment complaint was filed

against Andy for betrayal of public trust and culpable violation
of the Constitution over the said allegations of ill-gotten
wealth.

An interesting question is whether Tish could be

called as a witness against Andy in an impeachment
proceeding in the House or at the trial in the Senate.

Section 22, Rule 130 of the Revised Rules of Court

provides that during their marriage, neither the husband nor
the wife may testify for or against the other without the
consent of the affected spouse. But like all other general
rules, the marital disqualification rule has its own exceptions,
both in civil actions between the spouses and in criminal
cases for offenses committed by one against the other.

It is worthy to note that an impeachment proceeding

is neither a civil nor criminal case; it is more a political rather
than a legal exercise. And even assuming it is civil or criminal
in nature, it is not a case by one spouse against the other.

Be that as it may, the rule that the injury must

amount to a physical wrong upon the person is too narrow;
and the rule that any offense remotely or indirectly affecting
domestic harmony comes within the exception is too broad.
The better rule is that, when an offense attacks, or vitally
impairs, the conjugal relation, 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 committed by one
against the other. (Cargil vs. State)
Tishs act of making public some documents that
would incriminate her husband, and Andys act of filing the
criminal cases of grave coercion, qualified theft, robbery and
extortion against her wife, underscored the fact that the
marital and domestic relations between them have become so
strained that there is no more harmony, peace or tranquility
to be preserved which the disqualification primarily seeks to
protect. There is no longer any reason to apply the Marital
Disqualification Rule, as the preservation of their marriage is
no longer an interest the State aims to protect.

So will the privileged communication rule, as laid

down in Section 22, Rule 130, apply to COMELEC Chairman
Andres Andy Bautista? No. As such, his wife, Patricia Tish
Cruz-Bautista could be called as a witness against him in an
impeachment proceeding in the House or at the trial in the
Senate, in order to oust the election chief from the position
which shields him, as of the moment, from being prosecuted
criminally under the cited laws or administratively disbarred
for alleged unethical practices.