Marcos case upsets Comelec activities

The raging debate on the legal effects on the presidential run of Ferdinand Marcos Jr. of his violations of the 1977 Tax Code is likely to spread from the Commission on Elections to the Supreme Court and disturb preparations for the 2022 national elections.

The Comelec, where civic leaders have filed a petition to deny or cancel Marcos’ certificate of candidacy, needs ample time to resolve the dispute before Nov. 15 (that’s on Monday!), the deadline for substitution of candidates who may be disqualified before ballots are printed.

And then, the loser in the COC-cancellation petition can be expected to appeal to the Supreme Court, an action that will prolong the debate. Will the Comelec be forced to include Marcos’ name on the ballot even before the case is finally resolved?

The Comelec first has to answer the question: Is Marcos a convicted criminal? Some quarters say yes, recalling that he was convicted in 1995 for four counts of criminal violation of the Tax Code when he was Ilocos Norte governor.

Granting, the next question is: If Marcos was indeed convicted, were his convictions enough under the circumstances to bar him from running for president in 2022?

Section 286 of the Tax Code, some lawyers point out, provides that any public officer convicted of any violation of the Code “shall be dismissed from public office and perpetually disqualified from any public office” and prohibited from participating in any election.

Last Thursday, we reported that some lawyers we had consulted on the matter expressed the view that the petition opposing Marcos’ candidacy “won’t prosper” – meaning that in their opinion the Comelec would allow the son of the late dictator to run.

Yesterday, we read a contrary opinion in a Viber item shared by former Commissioner Jose Mario Buñag of the Bureau of Internal Revenue. The item, not written by Buñag himself but merely posted by him, goes:

Regarding the petition against Marcos, I’m posting here a summary of the facts and the legal bases of the petition.

1. The petition filed against Marcos is NOT a disqualification case. It’s a petition to cancel Marcos’ Certificate of Candidacy or deny it due course – one way of saying that the Comelec should not allow it – because Marcos allegedly lied (“false material representation”).

2. Legal basis: Section 78 of the Election Code allows the Comelec to cancel the COC if the candidate writes anything false on it.

3. What was false in the COC of Marcos? In the COC, there is a section where you have to declare if you’ve been convicted of a crime that carries with it the accessory penalty of perpetual disqualification to hold public office. Marcos wrote that he was never convicted of such a crime. This statement was made under oath.

4. Was Marcos’ statement that he was never convicted of such a crime true or false? It is false. Marcos was convicted with finality for four counts of failure to file his ITR under the 1977 Tax Code. That means four convictions. The Court of Appeals simply removed the penalty of imprisonment – a penalty that was actually required to be imposed together with the fine. But even if the penalty of imprisonment was removed, he was still declared guilty of the crime and sentenced to pay fines.

5. Did Marcos know he was convicted of the crimes? Of course, he did. He filed an appeal of his conviction with the Supreme Court. In an appeal, the entire case will be reviewed, and it could be decided against him. The Supreme Court could overturn the decision of the Court of Appeals and sentence him to imprisonment. Appeal can be a risk when facts are not in one’s favor. That said, I don’t know why Marcos withdrew his appeal with the SC. He should answer that question.

6. So, was Marcos a convicted criminal? Yes. He was convicted – not just once, but four times. He filed an appeal on his convictions with the Supreme Court, but later decided to withdraw them. By withdrawing his appeal, his convictions became final judgments. Note that a conviction does not always carry with it jail time. Being declared guilty of a crime is the conviction. In Marcos’ case, he was declared guilty and sentenced to pay fines for his crimes.

7. Does the crime he was convicted of carry with it the accessory penalty of disqualification? Yes, it does. Marcos was convicted under the 1977 Tax Code. Under Section 286 of that law, any public officer or employee convicted of any violation of the Tax Code “shall be dismissed from public office and perpetually disqualified from any public office” and is prohibited from participating in any election. When the Tax Code was amended in 1997, that same provision was retained. That accessory penalty was never removed. The mere fact of conviction carries with it the penalty of perpetual disqualification. It’s part of the law.

8. What about the argument that disqualification of a candidate applies only to those sentenced to a penalty of imprisonment of more than 18 months or for crimes involving moral turpitude? That provision under the Omnibus Election Code refers only to those crimes that do not include the accessory penalty of perpetual disqualification from public office. It does not apply to crimes where perpetual disqualification is already part of the penalty (which is why it is called an accessory penalty). Under the Tax Code, perpetual disqualification is an accessory penalty to ANY violation.

Whether the Comelec considers violation of the Tax Code as a ground for perpetual disqualification is something we are all interested in. The question of whether Marcos is required to file an ITR should have been discussed in the Court of Appeals, but it would be interesting as well to see if this will be reinterpreted by the Comelec.

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NB: All Postscripts are also archived at ManilaMail.com. Author is on Twitter as @FDPascual. Email: [email protected]