CANCEL THE COC OF MARCOS JR. (MORE)
MANILA, Philippines — For betraying their “bias,” three commissioners of the Commission on Elections (Comelec) were asked to inhibit themselves from a review of their decision to dismiss the petition seeking to cancel the certificate of candidacy (COC) of former senator and presidential candidate Ferdinand “Bongbong” Marcos Jr.
On Monday, the group of anti-Marcos regime activists that filed the petition, led by Task Force Detainees of the Philippines chair, Fr. Christian Buenafe, appealed the Jan. 17 decision of the Comelec’s Second Division in Marcos Jr.’s favor.
They sought the inhibition of the three commissioners who make up the Second Division and asked the rest of the seven-member Comelec to cancel Marcos Jr.’s COC, saying the late dictator’s son and namesake was barred from public office for life due to his tax evasion conviction in 1995.
Refuting the conclusion reached by the Second Division, the petitioners said Marcos Jr. committed misrepresentation in his COC when he declared that he had never been found liable for any offense which carried the accessory penalty of perpetual disqualification from holding public office.
…They also asked the Comelec sitting as a whole to look into the use of “intemperate and improper language” by the Second Division and the “presence of bias” among the three members.
“Parts of the questioned resolution read like a litigant’s pleading in tone and references while other portions employ words and qualifiers that should not form part of the vocabulary of an independent tribunal,” the petitioners said.
…In its ruling, the Comelec’s Second Division said Marcos Jr. did not commit any misrepresentation in his COC since the CA was “correct” in not imposing the penalty of perpetual disqualification from public office.
But according to the petitioners, Marcos Jr.’s conviction for violation of the National Internal Revenue Code (NIRC) “automatically brought about the consequences provided therein—that he [would be] perpetually dismissed from holding any public office, [barred from voting] and … participat[ing] in any election.”
They also argued that the CA “did not have to” explicitly write the penalty of perpetual disqualification in its decision, saying Section 286 of the NIRC imposed the penalty for public officials convicted of tax offenses. INQ
The principal point of the motion for reconsideration is the complaint about the bias of the three commissioners of the Comelec 2nd Division.
The bias of the three commissioners appears in two aspects of their decision: (1) the recapitulation of several exculpatory arguments of the Marcos Jr. camp, with practically no credit being accorded to the merits of the petitioners’ arguments, and (2) the use of “intemperate and improper language” imputing malice to the petitioners when a more reasonable—and temperate—understanding of the petitioners’ submission is that their divergent reading of the relevant laws is accounted for by the intricacy of their development and transformation over time.
The following key arguments of the Marcos Jr. camp are recapitulated by the 2nd Division:
- When in pursuing the cancellation of Marcos Jr.’s Certificate of Candidacy the petition invokes grounds for disqualification, the petition should according to Comelec’s Rules of Procedure be summarily dismissed.
- Marcos Jr. did not deliberately intend to mislead, misinform, or deceive Comelec or the electorate.
- Failure to file an income tax return is not a crime involving moral turpitude.
A token affirmation of the petitioners’ argument occurs when the 2nd Division declares that according to the Constitution Comelec’s power includes within its scope the enforcement and administration of all election-related laws and regulations, including those pertaining to the qualifications of candidates for the office of president.
The 2nd Division decision gives a very intricate account of the development and transformation over time of pertinent laws, namely, Section Nos. 45, 73, 254, and 288 of the 1977 National Internal Revenue Code (NIRC), and Section Nos. 286 and 288 of P. D. No. 1994. They cite E. O. No. 273, which was promulgated on January 1, 1988 and replaced Section No. 254 of NIRC with Section No. 288 of P. D. No. 1994. They recall R. A. No. 8424, which was passed on December 11, 1998 and amended Section No. 255 of NIRC.
In the context of this difficult exposition, which would verily discombobulate the most astute reader, the 2nd Division imputes malice to the petitioners, lobbing at them “intemperate” accusations like, “petitioners appear to have deliberately misquoted the applicable law,” “petitioners deliberately cited an inapplicable provision of law in order to mislead the Commission,” and “petitioners shamelessly cited a certain provision denominated as ‘Section 254 of the 1977 NIRC.’”
Saying that the Court of Appeals did not convict Marcos Jr. for “tax evasion,” the 2nd Division charged the petitioners with “the propensity to mislead.”
While muscularly argued, the decision of the commissioners of the Comelec 2nd Division fails to give due regard to the robust merits of at least several of the petitioners’ arguments, and in the unjustified accusatory tone imputing malicious intent to the petitioners, the decision does indeed show objectionable bias.
***
Retired Chief Justice Artemio V. Panganiban responded to the Comelec 2nd Division decision in the Marcos Jr. case and the Motion for Reconsideration.
Besides declaring his concurrence with Atty. Theodore O. Te, who represents the petitioners, Panganiban added his own pointed rejoinder.
In my opinion, Te’s robust rebuttal citing Proclamation No. 3 of President Corazon C. Aquino, which is also invoked by the Comelec 2nd Division, defeats the principal argument upon which the Comelec 2nd Division decision rests.
[Boldface mine] [Comments in square brackets]
As I explained last Sunday, the Second Division of the Commission on Elections (Comelec) refused to cancel the Certificate of Candidacy (COC) of Bongbong Marcos (BBM) because the petitioners failed to show that BBM lied (or in legalese, that BBM committed “false material representations”) when (A) he stated in Item No. 11 of his pro forma COC, as follows: “I am eligible for the office I seek to be elected to,” and (B) he answered “No” to the question in Item No. 22 of his COC that reads: “Have you ever been found liable for an offense which carries with it the accessory penalty of perpetual disqualification to hold public office, which has become final and executory?”
THESE REPRESENTATIONS ARE FALSE, insist the petitioners—through their counsel Theodore O. Te—in their motion for partial reconsideration (MR).
Regarding (A) eligibility, Te wrote that the Second Division admitted that BBM was convicted by the Court of Appeals (CA) “of a law that prescribes the penalty of perpetual disqualification to hold office… for an offender who is a public officer or employee.” But the Division wrongly “excluded BBM from the clear coverage of the law,” ruling (1) that he was not EXPRESSLY “meted” the accessory penalty and (2) that BBM was NO LONGER A PUBLIC OFFICER on March 18, 1986 when the law requiring the filing of his Income Tax Returns (ITR) for 1985 fell due because he (and his father) were exiled to Hawaii and ousted from their public offices in February 1986; and BBM, by his exile, abandoned his office as governor.
TE COUNTERED THAT (1) the CA did not need to impose expressly the penalty because “by operation of law,” it was “deemed written into the conviction,” and (2) BBM was still a public officer (governor) because under the then Provisional Constitution, “All elective and appointive officials and employees… shall continue in the office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors…” [This provision in Proclamation No. 3 is critical to Te’s argument. See relevant links below on the provisional government interim constitution.] Moreover, abandonment of a public office is a crime, and according to Te, “It is exceedingly ludicrous for the Second Division to invoke the commission of a felony on behalf of the offender as a defense against a penalty prescribed by law for another crime…”
Regarding (B) on BBM’s “No” answer, Te argued, “All (the question) seeks to elicit is whether (BBM) was convicted of a crime… penalized with perpetual disqualification.” Unquestionably, he was. [Panganiban at this point concurs with Te’s counterarguments.]
…AFTER READING THE RESOLUTION AND TE’S MR, I am convinced that in regard to BBM’s representation in Item No. 11, BBM—under the then Constitution—continued to be a public officer on March 18, 1986 when he was required (but failed) to file his ITR. To the best of my knowledge, Castor Raval was sworn in only as “acting governor” of Ilocos Norte which means that BBM was still the regular governor. Also, though his father was exiled to Hawaii, BBM did not present any proof he was forced to be exiled, too, and prevented from returning home. [Panganiban reinforces Te’s rebuttal by supplying supporting arguments.]
Moreover, his “No” answer in Item No. 22 is “false” because the offense he was convicted of carried with it—in fact and in truth—the accessory penalty of disqualification from holding a public office. The question did not require that the penalty be “imposed” by a court, only that the “offense… carries with it the accessory penalty of perpetual disqualification…” [Notably, Panganiban seconds Te’s key argument that the accessory penalty of perpetual disqualification from public office is automatically imposed by the operation of law upon the conviction of the offender.] That his conviction had not been raised in his earlier quests for public office does not excuse the falsity of his answer. Jalosjos v. Comelec (Oct. 9, 2012) held that a COC can still be canceled though, in the past, the candidate had been judged by the Comelec to be eligible to run, and has served twice as mayor.
I also think that BBM cannot be said to be unaware of the consequences of the offense he was convicted of because, to quote the Civil Code, “Ignorance of the law excuses no one from compliance therewith.” And to use a maxim familiar to law students, Ignorantia juris neminem excusat. [Panganiban repudiates the Comelec 2nd Division claim that Marcos Jr. did not deliberately intend to mislead, misinform, or deceive Comelec or the electorate because the Marcos scion should have been aware upon his conviction of the automatic accessory penalty of perpetual disqualification from public office.]
Comments to chiefjusticepanganiban@hotmail.com
Read more: https://opinion.inquirer.net/149217/petitioners-bbm-lied-coc-must-be-nixed#ixzz7K0O4yufb
Provisional government interim constitution—relevant links:
https://www.officialgazette.gov.ph/1986/03/25/proclamation-no-3-s-1986-2/
—“Proclamation No. 3, s. 1986,” Official Gazette of the Republic of the Phlippines
https://apnews.com/article/bccb5c0c06dc2e5d7676a8b2a138f472
—David Briscoe, “Mrs. Aquino Signs Interim Constitution Giving Her Wide Powers,” AP News (March 26, 1986)
For reference purposes, I copy below the relevant portions of the Comelec 2nd Division decision absolving Marcos Jr. from the scope of Section 286 (c) of the 1977 NIRC, as amended by P.D. No. 1994, effective on January 1, 1986.
[Comments in square brackets]
Under Rule 129 of the Rules of Evidence, the Commission is mandated to take judicial notice, without the introduction of evidence, of the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines. Moreover, the Commission may also take judicial notice of matters which are of public knowledge, or are capable to unquestionable demonstration, or ought to be known to judges because of their judicial functions.
There is no question that the EDSA Revolution occurred, leading to the exile of the Marcos family to Hawaii, U.S.A. on the evening of 25 February 1986. 43 In Republic v. Sandiganbayan, 44 the Supreme Court briefly recounted said events and the resulting revolutionary government that ruled afterwards, to wit:
begin block quote
The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in President Aquino’s Proclamation No. 3 dated 25 March 1986, the EDSA Revolution was “done in defiance of the provisions of the 1973 Constitution.” The resulting government was indisputably a revolutionary government bound by no constitution or legal limitations except treaty obligations that the revolutionary government, as the de jure government in the Philippines, assumed under international law.
xxx
We hold that the Bill of Rights under the 1973 Constitution was not operative during the interregnum. However, we rule that the protection accorded to individuals under the Covenant and the Declaration remained in effect during the interregnum.
During the interregnum, the directives and orders of the revolutionary government were the supreme law because no constitution limited the extent and scope of such directives and orders. With the abrogation of the 1973 Constitution by the successful revolution, there was no municipal law higher than the directives and orders of the revolutionary government. Thus, during the interregnum, a person could not invoke any exclusionary right under a Bill of Rights because there was neither a constitution nor a Bill of Rights during the interregnum. As the Court explained in Letter of Associate Justice Reynato S. Puno:
A revolution has been defined as “the complete overthrow of the established government in any country or state by those who were previously subject to it” or as “a sudden, radical and fundamental change in the government or political system, usually effected with violence or at least some acts of violence.” In Kelsen’s book, General Theory of Law and State, it is defined as that which “occurs whenever the legal order of a community is nullified and replaced by a new order . . . a way not prescribed by the first order itself.”
It was through the February 1986 revolution, a relatively peaceful one, and more popularly known as the “people power revolution” that the Filipino people tore themselves away from an existing regime. This revolution also saw the unprecedented rise to power of the Aquino government.
xxx
It is widely known that Mrs. Aquino’s rise to the presidency was not due to constitutional processes; in fact, it was achieved in violation of the provisions of the 1973 Constitution as a Batasang Pambansa resolution had earlier declared Mr. Marcos as the winner in the 1986 presidential election. Thus it can be said that the organization of Mrs. Aquino’s Government which was met by little resistance and her control of the state evidenced by the appointment of the Cabinet and other key officers of the administration, the departure of the Marcos Cabinet officials, revamp of the Judiciary and the Military signaled the point where the legal system then in effect, had ceased to be obeyed by the Filipino. (Emphasis and italics in the original) (Emphases and underscoring Ours)
end block quote
In addition, Respondent and his family even sued the Philippine Government for them to be allowed to return to the Philippines in the case entitled Ferdinand E. Marcos, et al. vs. Hon. Raul Manglapus, et al. 45. In fact, Petitioners’ statements in their Petition likewise support the fact that Respondent indeed left the country on
25 February 1986:
begin block quote
62. x x x On February 25, 1986, rival presidential inaugurations were held, but as Aquino supporters overran parts of Manila and seized state broadcaster PTV-4, President Marcos, Sr. was forced to flee. Thereafter, President Marcos, Sr. and his family were exiled in the United States of America.
63. When the family finally fled the palace during the 1986 popular uprising, they carried as much of their wealth as they could on their persons: x x x
64. When Imelda fled Malacanang Palace with her husband in 1986, she left behind a personal safe x x x. 46 (Emphasis supplied)
end block quote
In sum, the dismantling of the whole government, abrogation of the 1973 Philippine Constitution, and the rise of a revolutionary government, coupled with Respondent’s abandonment of his post when he and his family fled to and got exiled in Hawaii, U.S.A., all lead to the conclusion that Respondent was no longer a public officer when he failed to file his 1985 income tax return on 18 March 1986. [The “whole government” was not “dismantled,” because after the 1986 EDSA Revolution the Philippine government apparatus was basically maintained until the interim constitution promulgated by Proclamation No. 3 substantially revised its configuration. Proclamation No. 3 did not remove existing provincial governors from office. Therefore, Marcos Jr. was not removed from the position of governor of Ilocos Norte—Castor Raval had been sworn in as OIC in his absence—until Rodolfo C. Fariñas actually replaced Marcos Jr., which was on February 2, 1988.] On said date, Respondent was no longer a public official, as he was already in exile in Hawaii with a new revolutionary government functioning in the Philippines.
Section 286 of P.D. No. 1994 cannot be made to apply to a private individual such as herein Respondent, as its provisions explicitly requires the qualification of public officer or employee for its application. Evidently, the penalty of perpetual disqualification to hold public office, to vote and to participate in any election under Section 286 (c) of the 1977 NIRC, as amended by P.D. No. 1994, cannot be imposed on Respondent.
Hence, the CA Decision is correct for not imposing on herein Respondent the penalty of perpetual disqualification from holding any public office, voting, and participating in any election. There was no error in judgment as the CA Decision was in accord with the law in force at the time of the commission of violations.
Since Respondent was not meted the accessory penalty of perpetual disqualification from public office, it cannot be rightfully said that he committed a false material representation when he answered in the negative to the question posed in Item No. 22 of his COC. In like manner, when Respondent declared in Item No. 11 of his COC that he is eligible for the office for which he seeks to be elected to, he was essentially speaking the truth.
Considering the foregoing disquisitions, it now becomes manifest that Respondent’s material representations - that he is eligible for the position of President and that he has not been meted the penalty of perpetual disqualification from public office - are actually not false.
NOTES
43 Ng, Alexandria, updated 6 June 2019, Chapter III: The Exile, retrieved from
https://www.hawaiinewsnow.com/2019/06/05/chapter-iii-exile/ last accessed 01 January 2022. Richburg, Keith B. and Branigin, William, 29 September 1989, Ferdinand Marcos dies in Hawaii at 72, retrieved from
https://www.washingtonpost.com/archive/politics/1989/09/29/ferdinand-marcos- dies-in-hawaii-at-72/dlc26275-d9bd-4bfd-8934-c2a02ff4ab51/ last accessed 01 January 2022.
44 G. R. No. 104768, 21 July 2003.
45 G. R. No. 88211, 15 September 1989. [Comelec 2nd Division cites this case as support for the claim that Marcos Jr. was no longer a public officer by the time his income tax return was due on March 18, 1986. However, the case is dated September 15, 1989, and the text of the case indicates that the petition was filed three years after the 1986 EDSA Revolution. Because Marcos’ suit to return with his family to the Philippines was filed three years after their departure, the case can hardly be invoked as evidence that Marcos Jr. was no longer a public officer three years before when his income tax return was due.]
46 Records, at 28.
***
The procedural and technical argument of Comelec 2nd Division calls for a response. It bears noting that it recapitulates the line of reasoning of the Marcos Jr. camp. The decision says [boldface mine]:
This Petition merits summary dismissal.
Section 78 of the Omnibus Election Code provides that a COC may be denied due course or cancelled when it contains a false material representation:
begin block quote
SECTION 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before the election. 23
end block quote
It is clear from a plain reading of the above-quoted section that the exclusive ground for a Petition to deny due course to or cancel a COC is that the subject COC contains a false material representation. There is no other possible ground.
The requirement of this singular ground in petitions of such nature is reiterated in Section 1 of Rule 23 of the COMELEC Rules of Procedure, as amended by COMELEC Resolution No. 9523, 24 thus:
begin block quote
Section 1. Ground for Denial or Cancellation of Certificate of Candidacy. - A verified Petition to Deny Due Course to or Cancel a Certificate of Candidacy for any elective office may be filed by any registered voter or a duly registered political party, organization, or coalition of political parties on the exclusive ground that any material representation contained therein as required by law is false. x x x
end block quote
In the instant case however, aside from alleging the existence of false material representations in Respondent’s COC, Petitioners also invoked grounds for disqualification against him.
More specifically, in page 39 of the Petition, Petitioners claimed that “Respondent Marcos, Jr. was convicted of a crime involving moral turpitude, thereby disqualifying him under the Omnibus Election Code to be a candidate and to hold any public office. 25
Additionally, in page 47 of the Petition, Petitioner averred that “[T]he conviction of Respondent Marcos, Jr. in the tax evasion cases carries the mandatory penalty of imprisonment of more than 18 months as imposed by law, disqualifying him under the Omnibus Election Code from running for any public office.” 26
Undoubtedly, these twin contentions by Petitioners are both grounds for disqualification. Section 12 of the OEC cannot be any clearer:
begin block quote
Sec. 12. Disqualifications. - Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. x x x 27
end block quote
Unfortunately for Petitioners, Our rules mandate that a Petition to Deny Due Course to or Cancel Certificate of Candidacy that invokes grounds for disqualification shall be summarily dismissed. The 2nd paragraph of Section 1, Rule 23 of the COMELEC Rules of Procedure, as amended by COMELEC Resolution No. 9523, 28 provides:
begin block quote
Section 1. Ground for Denial or Cancellation of Certificate of Candidacy. -
xxx
A Petition to Deny Due Course to or Cancel Certificate of Candidacy invoking grounds other than those stated above or grounds for disqualification, or combining grounds for a separate remedy, shall be summarily dismissed. 29
end block quote
Following this provision, the instant Petition ought to be summarily dismissed.
… Despite summary dismissal being warranted in the case at bar, We shall nevertheless relax compliance with the technical rules of procedure and proceed to discuss the merits if only to fully and finally settle the matter in this case because of its paramount importance.
NOTES
23 Emphasis supplied.
24 In the matter of the amendment to Rules 23, 24, and 25 of the COMELEC Rules of Procedures for purposes of the 13 May 2013 National, Local and ARMM Elections and Subsequent Elections;
25 September 2012.
25 Emphasis supplied.
26 Id.
27 Id.
28 Supra, note 24.
29 Emphasis supplied.
[Comments follow]
Even to a layman, it is rather obvious that the petition to cancel the COC of Marcos Jr. invokes the grounds of material misrepresentation exclusively, not of disqualification.
Petitioners cite the alleged disqualification of Marcos Jr. as the factual basis for the material misrepresentation, not as the grounds for the cancellation of the COC.
A peculiarity of the Marcos Jr. case is that you cannot claim material misrepresentation in the COC without citing the fact of disqualification.
The factual claim of the petitioners is that Marcos Jr. was disqualified even before he filed his COC. Afterwards, when he filed his COC, he lied about his disqualification, committing material misrepresentation. It is this material misrepresentation that is the grounds for the petition to cancel his COC.
You could say that the primary “grounds,” the term used here according to its popular rather than its technical meaning, is material misrepresentation, while the secondary or auxiliary “grounds” is disqualification.
Or, disqualification represents the grounds once removed, if you like.
For the reasons given the procedural and technical argument of the Comelec 2nd Division is unpersuasive and as a result unsatisfactory.
***
Original text of the decision of the Comelec 2nd Division is available here:
—“FULL TEXT: Comelec 2nd division dismisses petition to cancel Marcos Jr.’s candidacy,” Rappler.com, January 17, 2022
A key argument of the Comelec 2nd Division concerns whether or not Marcos Jr. falls under the purview of Section 286 (c) of the 1977 NIRC, as amended by P.D. No. 1994, which took effect on January 1, 1986.
The provision imposes the accessory penalty of perpetual disqualification from public office on any public officer or employee convicted of any crimes under the 1977 NIRC, as amended:
“If he is a public officer or employee, the maximum penalty prescribed for the offense shall be imposed and, in addition, he shall be dismissed from the public service and perpetually disqualified from holding any public office, to vote and to participate in any election.”
The penalty is “accessory” because according to Section 286 (a): “Any person convicted of a crime penalized by this Code shall, in addition to being liable for the payment of the tax, be subject to the penalties imposed herein.”
Relevant passages of the Comelec 2nd Division decision:
“In sum, the dismantling of the whole government, abrogation of the 1973 Philippine Constitution, and the rise of a revolutionary government, coupled with Respondent’s abandonment of his post when he and his family fled to and got exiled in Hawaii, U.S.A., all lead to the conclusion that Respondent was no longer a public officer when he failed to file his 1985 income tax return on 18 March 1986. On said date, Respondent was no longer a public official, as he was already in exile in Hawaii with a new revolutionary government functioning in the Philippines.
“Section 286 of P.D. No. 1994 cannot be made to apply to a private individual such as herein Respondent, as its provisions explicitly requires the qualification of public officer or employee for its application. Evidently, the penalty of perpetual disqualification to hold public office, to vote and to participate in any election under Section 286 (c) of the 1977 NIRC, as amended by P.D. No. 1994, cannot be imposed on Respondent.”
In brief, Marcos Jr. was not a public officer when he failed to file his income tax return on March 18, 1986. Therefore, he is not covered by P.D. No. 1994, which took effect on January 1, 1986. P.D. 1994 imposes the accessory penalty of perpetual disqualification from public office for any public officer or employee convicted of any crimes under the 1977 NIRC, as amended.
On the issue of applying P.D. 1994 to the case of Marcos Jr., there are divergent views.
Commissioner Antonio T. Kho, Jr.
Commissioner Antonio T. Kho, Jr. of the Comelec 2nd Division in a separate opinion wrote:
“The fact that Marcos Jr. abandoned his post as the provincial governor of Ilocos Norte when he and his family fled the country during the February 1986 Edsa People Power Revolution cannot and should not operate to deny the possible application against him of the penalty of perpetual disqualification to hold public office.”
“‘To allow a public officer to escape the penalty of perpetual disqualification to hold public office for his failure to file his income tax returns by the simple expedient that he is no longer a public officer at the time of the filing of the returns is contrary to law and frustrates the intention of dispensing justice by penalizing erring public officials for violations of the tax code.”
That is, Marcos Jr. is liable under P.D. 1994 because: (1) he abandoned his post, and (2) it is contrary to the intention of the law and to the law itself to allow public officers to escape the penalties imposed on them because they were no longer public officers at the point in time when the income tax return came due.
A key difference between the decision of the Comelec 2nd Division and that of Kho is that with the former the provision is interpreted literally—“if he is a public officer or employee”—while with the latter the intent of the law is taken into consideration—“to allow a public officer to escape the penalty of perpetual disqualification to hold public office for his failure to file his income tax returns by the simple expedient that he is no longer a public officer at the time of the filing of the returns is contrary to law and frustrates the intention of dispensing justice by penalizing erring public officials for violations of the tax code.”
The Comelec 2nd Division interpretation is an instance of strict construction.
“Under strict constructionism, a judge can interpret a text as it is written, considering only what is presented within the four corners of the legal document.”
https://study.com/academy/lesson/strict-constructionism-definition-beliefs-examples.html
—Brittany McKenna, “Strict Constructionism: Definition, Beliefs & Examples,” Study.com
Not surprisingly, strict construction is hardly an ideal approach.
“Sometimes, a judge’s strict interpretation of a text can lead to unusual, or even absurd, results. This is referred to as the doctrine of absurdity.”
—Ibid.
US Supreme Court Justice Antonin Scalia advocates some sort of middle ground:
“A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”
—Antonin Scalia, A Matter of Interpretation (Princeton, New Jersey: Princeton University Press, 2018)
A reasonable interpretation of Section 286 (c) of P.D. No. 1994 is that it is intended to apply to public officers from the point in time wherein they originally incurred the obligation of filing their income tax return, that is, the point in time when they were officially compensated, so that the applicability of Section 286 (c) of P.D. No. 1994 should be reckoned from the aforementioned point in time.
The aggravating circumstance of the public officer position of the offender should be read in relation to the point in time when the obligation to file an income tax return materialized, that is, when the offender originally received compensation as a public officer. The aggravating circumstance did not instantly materialize on the date when filing the income tax return was due. To follow this interpretation is to absolve from perpetual disqualification for public office all public officers guilty of tax evasion just because they had resigned or otherwise been divested of their position when the income tax payment or filing of the income tax return was due. It is an implausible argument to claim that the intent of the law is to allow the offender this apparently unforeseen opportunity for self-exculpation. The tax payment and income tax return filing obligations maintain from the point in time when they arose until not only the due date but also beyond that point in time until they are entirely extinguished.
The above interpretation of the law falls under the rubric of liberal construction.
“Strict construction is the opposite of liberal construction, which permits a term to be reasonably and fairly evaluated so as to implement the object and purpose of the document. An ongoing debate in U.S. law concerns how judges should interpret the law. Advocates of strict construction believe judges must exercise restraint by refusing to expand the law through implication. Critics of strict construction contend that this approach does not always produce a just or reasonable result.”
https://legal-dictionary.thefreedictionary.com/Strict+constructionism
—“Strict Construction,” The Free Dictionary by Farlex
We agree that the default approach for interpreting a criminal statute is strict construction, not liberal construction.
“In Criminal Law, strict construction must be applied to criminal statutes. This means that a criminal statute may not be enlarged by implication or intent beyond the fair meaning of the language used or the meaning that is reasonably justified by its terms. Criminal statutes, therefore, will not be held to encompass offenses and individuals other than those clearly described and provided for in their language. The strict construction of criminal statutes complements the rule of lenity, which holds that ambiguity in a criminal statute should be resolved in favor of the defendant.”
—Ibid.
All things considered, and especially given the heuristic that criminal statutes should be strictly construed, we concede that the Comelec 2nd Division decision is sufficiently persuasive concerning the literal if somewhat absurd interpretation of the limited application of Section 286 (c) of P.D. No. 1994.
Retired Chief Justice Artemio V. Panganiban
Retired Chief Justice Artemio V. Panganiban in his January 30, 2022 Inquirer column, disagreed with the Comelec 2nd Division position that Marcos Jr. was no longer a public officer when his income tax return came due.
Panganiban cited the motion for reconsideration of Atty. Theodore O. Te, which argued that under the then Provisional Constitution or Proclamation No. 3, “All elective and appointive officials and employees…shall continue in the office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors.”
Panganiban also presented supporting arguments, saying:
“I am convinced that in regard to BBM’s representation in Item No. 11, BBM—under the then Constitution—continued to be a public officer on March 18, 1986 when he was required (but failed) to file his ITR. To the best of my knowledge, Castor Raval was sworn in only as ‘acting governor’ of Ilocos Norte which means that BBM was still the regular governor. Also, though his father was exiled to Hawaii, BBM did not present any proof he was forced to be exiled, too, and prevented from returning home.”
Read more: https://opinion.inquirer.net/149217/petitioners-bbm-lied-coc-must-be-nixed#ixzz7K0O4yufb
—Artemio V. Panganiban, “Petitioners: BBM Lied, COC Must Be Nixed,” Philippine Daily Inquirer (January 30, 2022)
Te’s counter-argument is robust. It impugns if not actually defeats the argument of the Comelec 2nd Division that Marcos Jr. was no longer a public officer upon the rise of the revolutionary government in 1986 under former President Corazon C. Aquino.
CANCEL THE COC OF MARCOS JR. because he incurred the accessory penalty of perpetual disqualification from public office when he was convicted for failing to file his income tax return on March 18, 1986.
Photo courtesy of Bongbong Marcos
ReplyDeletePhoto link:
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Gonzalinho
A lawyer friend of mine pointed out that the Revised Penal Code provisions on aggravating circumstances do not apply to special penal laws unless the penal nomenclatures are in both cases identical.
ReplyDeleteI did not dispute his point. However, I said that I do not use the term “aggravating circumstance” according to its specific and restricted meaning in the Revised Penal Code but rather as a general legal concept for purely argumentative purposes.
My purpose in this exposition is not to examine the decision as a lawyer but rather from my standpoint as an “expert” in informal logic, in which I completed a doctoral degree, and to some extent in formal logic.
Gonzalinho