Bongbong DQ case is like COVID watch

Yesterday, a Monday, felt like waiting outside the hospital ICU for a medical bulletin on a very important COVID-19 patient in serious condition.

Commissioner Rowena Guanzon, who presides over the hearing of three consolidated petitions to disqualify ex-senator Ferdinand Marcos Jr. as a candidate for president, has said it was possible a decision would be out yesterday.

So there we were, virtually watching from a safe distance. The ruling of Guanzon’s division, however, may still be appealed to the Comelec en banc, etc., so the final resolution of the dispute is not just about to sweep us like an Omicron surge.

The Marcos cases look basically clear-cut enough for speedy resolution. They hang mainly on the conviction in 1997 of Marcos Jr. for failing to file his income tax returns and pay the proper tax when he was vice governor and later governor of Ilocos Norte from 1982 to 1985.

Sec. 255 of the Tax Code provides that anyone convicted of failure to file tax returns or failure to pay the proper taxes shall be “punished by a fine of not less than P10,000 and suffer imprisonment of not less than one year but not more than 10 years.”

Also, Sec. 12 of the Omnibus Election Code disqualifies from holding any elective public office, including that of president, anyone convicted by final judgment of “any offense for which he has been sentenced to a penalty of more than 18 months or for a crime involving moral turpitude.”

Marcos Jr. claimed he has paid, although belatedly, the taxes and the penalties imposed on him. Will the alleged payments erase his conviction and its resulting lifetime disqualification from holding any elective public office?

Whatever be the Comelec rulings on the petitions, the losing parties are expected to appeal to the Supreme Court, the final arbiter on legal questions.

Unlike the high court, which sat as the Presidential Electoral Tribunal for almost five years to resolve the Marcos protest against the 2016 election of Vice President Leni Robredo, the Comelec must decide the disqualification petitions within the tight election calendar.

The Comelec has to print the 73 million or so ballots for timely distribution nationwide and overseas. The poll body is under deadline pressure to finalize the list of candidates whose names will appear on the May 9 ballot.

As it is unlikely that the disqualification cases can be resolved fast enough to catch the ballot printing, the Comelec may decide to include Marcos Jr. in the ballot, subject to any protest later from adversely affected parties.

So here we are, still wondering if the Comelec would disqualify Marcos Jr. Will the patient emerge from the ICU well enough for the ambulance ride to the Supreme Court?

Distilling what we have imbibed from readings, especially the opinion columns of retired SC senior associate justice Antonio Carpio, we have the impression that the disqualification of Marcos Jr. hinges on his prior convictions for tax evasion.

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On July 27, 1995, Marcos Jr. was convicted on four charges of violating Sec. 45 of the 1977 National Internal Revenue Code for failing to file income tax returns from 1982 to 1985. In one of the cases, the Quezon City Regional Trial Court sentenced him to three years in prison with a fine of P30,000.

Sec. 12 of the Omnibus Election Code provides that a person who has been sentenced by final judgment for any offense with a penalty of more than 18 months or for a crime involving moral turpitude, shall be disqualified from being a candidate and to hold any elective office.

Carpio said: “While the failure to file a tax return for one year may not evince an intent to evade payment of income taxes, the repeated failure to file income tax returns for several years can evince an intent to evade such payment, amounting to moral turpitude.”

(Btw, for transparency we state here that Carpio is chairman of 1Sambayan, the coalition that nominated Vice President Leni Robredo for president.)

On Oct. 30, 1997, Marcos Jr. appealed the RTC decision to the Court of Appeals, which later ruled that he was “guilty beyond reasonable doubt” for violating Sec. 45. The CA acquitted him on four other charges under Sec. 50 for non-payment of deficiency taxes.

Marcos Jr. was also ordered to “pay the BIR the deficiency income taxes due with interest at the legal rate until fully paid.”

Carpio noted that the CA “inexplicably” dropped the jail time penalty “despite the clear mandatory requirement of the Tax Code that the penalty shall be both a fine and imprisonment.”

“Marcos Jr. cannot now be disqualified on the ground that he was sentenced to imprisonment for more than 18 months because there is no such sentence by the CA,” he said.

Was Marcos’ case “a crime involving moral turpitude,” the other basis for the disqualification of a candidate under the Omnibus Election Code?

The SC has adopted the Black’s Law Dictionary’s definition of moral turpitude as “an act of baseness, vileness or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty or good morals.”

Carpio said that Marcos’ possible disqualification on grounds of moral turpitude could be based on his overall conduct. But ultimately, “moral turpitude” as a ground for a presidential candidate’s disqualification is what the Supreme Court says it is.

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