Parental and Filial Privilege

Parental and Filial Privilege Meaning:
A person cannot be compelled to testify against his parents, other
direct ascendants, children or other direct descendants.

This section is an expanded amendment of the former provision found
in Section 20 (e), a disqualification by reason of relationship which,
in turn, was reproduced from Art. 315 of the Civil Code.

It was not correctly a rule of disqualification, as the descendant
was not incompetent or disqualified to testify against his ascendants,
but was actually a privilege to testify, hence it was referred to
as “filial privilege”.

However, under the Family Code, the descendant may be compelled to
testify against his parents and grandparents, if such testimony is
indispensable in prosecuting a crime against the descendant by one
parent against the other (Art. 215).

Under the present formulation, both parental and filial privileges
are granted to any person, which privileges against compulsory
testimony he can invoke in any case against any of his parents,
direct ascendants, children or direct descendants.

Reason for the Rule
The reason for the rule is to preserve “family cohesion” deploring
the lack of this provision under former laws as doing violence to
the most sacred  sentiments between members of the same family.”

NOTE: The privilege may now be invoked in both civil  and criminal

Bar Examination 1998
C is the child of the spouses H and W. H sued his wife W for judicial
declaration of nullity of marriage under Article 36 of the Family Code.
In the trial, the following testified over the objection of W: C, H
and D, a doctor of medicine who used to treat W. Rule on W's objections
which are the following:

      1. H cannot testify against her because of the rule on
         marital privilege; (1%)
      2. C cannot testify against her because of the
         doctrine on parental privilege; and (2%)
      3. D cannot testify against her because of the
         doctrine of privileged communication between
         patient and physician. (2%)

Suggested Answer:
1. The rule of marital privilege cannot be invoked in the annulment
   case under Rule 36 of the Family Code because it is a civil case
   filed by one against the other.
   (Sec. 22 Rule 130 Rules of Court)
2. The doctrine of parental privilege cannot likewise be invoked by W
   as against the testimony of C, their child. C may not be compelled
   to testify but is free to testify against her.
   (Sec. 25 Rule 130 Rules of Court / Art. 215 Family Code)
3. D, as a doctor who used to treat W, is disqualified to testify
   against W over her objection as to any advice or treatment given
   by him or any information which he may have acquired in his
   professional capacity.
   (Sec. 24 (c) Rule 130 Rules of Court)

Alternative Answer:
If the doctor's testimony is pursuant to the requirement of
establishing the psychological incapacity of W, and he is the expert
called upon to testify for the purpose, then it should be allowed.
(Republic vs. Court of Appeals and Molina, 26S SCRA 198.)

People v. Zheng Bai Hi
The failure of a witness to take an oath prior to his testimony is a
defect that may be waived by the parties.

Cavili v. Fernando
The specific enumeration of disqualified witnesses in the ROC is
understood to exclude the operation of causes of disability other
than those mentioned therein.


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