Andy Bautista’s legal conundrums

Patricia “Tish” Bautista executed an affidavit, dated Aug. 1, 2017, disclosing documents and information about her husband, Andres “Andy” Bautista, chair of the Commission on Elections (Comelec), that could, according to her, lead to his 1) criminal prosecution for violations of the Anti-Graft Law and the Anti-Money Laundering Act, 2) disbarment for unethical practice, and 3) impeachment for dishonesty in his statement of assets and liabilities (SALN) and for betrayal of public trust. Andy denounced the documents as misleading and the information as “all lies.”

Criminal and disbarment suits. Since then to this date, the affidavit has become the fodder of TV, radio and newspaper interviews by the couple themselves, their lawyers and relatives. It has inevitably opened up their private lives to ugly rumors, unfair social media trolls and salacious coffee talk. However, I will limit myself to what is of public interest—the possible legal liabilities of Andy.

Jurisprudence bars him from being prosecuted criminally under the cited laws or administratively disbarred for alleged unethical practices. The Supreme Court has held that officials removable by impeachment are virtually immune from suits where the prescribed penalty would oust them from their offices.

The Constitution (Art. IX, Sec. C-1) requires the Comelec chair to be a member of the Philippine bar. Charging him 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.

While he may be investigated by the National Bureau of Investigation, the Department of Justice and the Ombudsman, any criminal indictment in court will have to wait till he finishes his term on Feb. 2, 2022, or earlier in case he resigns, or is successfully impeached and removed from office prior to that date. For the same reason, he cannot now be disbarred.

True also, the Bureau of Internal Revenue can investigate his possible tax liabilities but no criminal indictment arising therefrom will prosper due also to his immunity as an impeachable official.

Impeachment. The “exclusive power to initiate all cases of impeachment” belongs to the House of Representatives. Impeachment complaints of private citizens must be “verified” and carry the signed “resolution” or endorsement of at least one member of the House before they can be considered “filed.”

As ruled by the House in the recent impeachment case against President Duterte, the complaint must be based on the personal knowledge of the complainant or his/her witnesses. Hearsay evidence or news reports would not be enough.

A vote of at least one-third of all the members of the House shall be necessary to send the Articles of Impeachment to the Senate, which has the “sole power to try and decide all cases of impeachment.” To convict and remove an official requires “the concurrence of two-thirds of all the Members of the Senate.” That’s 16 votes.

Wife as witness. 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.

The Rules of Court (Rule 130, Sec. 22) states that “… neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants.”

An impeachment proceeding is neither a civil nor criminal case; it is sui generis (or one of a kind); in fact, 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.

Without the affidavit and testimony of Tish, will the impeachment proceedings in the House and the trial in the Senate succeed?

On the other hand, did Andy effectively waive his spousal privilege and consent to his wife’s testimony by filing criminal cases (robbery, extortion, etc.) against her?

More on these legal conundrums later.

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