CANCEL THE COC OF MARCOS JR.
No doubt thousands, possibly millions of our people have been tracking intently the progress of the Comelec cases to disqualify Marcos Jr. I am no exception.
On December 23 last year, Rappler.com published a list of the issues raised in the two petitions to cancel Marcos Jr.’s Certificate of Candidacy and in the four to disqualify him. Both the positions of the petitioners and the respondents were presented in the article, in some instances with the author’s remarks.
See: https://www.rappler.com/nation/elections/explanation-cases-versus-bongbong-marcos-candidacy-answers/
—Lian Buan, “Point by point: Cases vs Bongbong Marcos’ candidacy and his answers so far,” Rappler.com, December 23, 2021
The Rappler.com list, especially because of its summary form, provides a useful framework for evaluating the key arguments for and against the petitions.
The strongest argument for the petitioners is that Marcos Jr. committed material misrepresentation in filing his application for the Certificate of Candidacy, which cancels his Certificate of Candidacy. In the application item that asks whether the applicant has been found liable of any offense that perpetually disqualified him, Marcos Jr. ticked “No.”
According to the December 23, 2021 Rappler.com article authored by Lian Buan:
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ISSUE: Since the exclusive ground of canceling a [Certificate of Candidacy] COC is material representation, petitioners must prove that Marcos indeed misrepresented details about him in his COC and that the omissions were material or [boldface mine] had a willful intent to deceive. [The disjunction indicates that “willful intent to deceive” is not necessary to cancel the COC—only showing material misrepresentation is necessary.]
PETITIONERS: “With full knowledge of his impediments, and with a deliberate attempt to mislead, misinform, and deceive the electorate, respondent Marcos, Jr., on October 6, 2021, filed the Subject COC making two material misrepresentations,” one when he said he was eligible, two when he ticked the “no” box in the question that asked whether he has been found liable of any offense that perpetually disqualified him. The Supreme Court in Delgado vs HRET ruled that there was material misrepresentation when Surigao Del Sur First District Representative Philip Pichay said in his COC that he was eligible despite knowing he was convicted of a crime involving moral turpitude, and thus knew he was disqualified. (Te memorandum)
end
The strongest case for Marcos Jr.’s perpetual disqualification is his criminal conviction for tax evasion under the National Internal Revenue Code (NIRC) of 1977, which imposes the penalty of dismissal from public service and perpetual disqualification from holding public office.
November 7, 2021 Inquirer article:
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Marcos was convicted of tax evasion, an offense under the National Internal Revenue Code (NIRC), which carries the penalty of perpetual disqualification from public office, Carpio said on Saturday.
The decision of the Quezon City Regional Trial Court in 1995 was upheld by the Court of Appeals (CA) in 1997. It became final in 2001 after Marcos withdrew his Supreme Court appeal.
…Under the NIRC, or Republic Act No. 8424, persons found guilty of tax evasion should pay the unpaid taxes and fines, and suffer imprisonment.
Section 253 (c) of the law also explicitly states that if the convicted individual is a public official “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.”
Carpio said this provision alone was enough to bar Marcos from vying for the country’s highest elective office. …
end
—Marlon Ramos, “Doesn’t matter if Marcos tax case raised only now – Carpio,” Philippine Daily Inquirer (November 7, 2021)
Marcos Jr.’s best rejoinder against the imposition of perpetual disqualification for his criminal conviction is that his sentence by the Court of Appeals did not impose it.
December 23, 2021 Rappler.com article:
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MARCOS: “There is no decided case in which the Supreme Court held that the disqualification is imposed ipso facto (by its very fact) upon conviction, or that such disqualification need not even be mentioned in the decision.” While Article 73 of the Revised Penal Code (RPC) indeed presumes an accessory penalty [of perpetual disqualification], [boldface mine] the tax code is not the RPC. (Marcos memorandum)
end
True, the RPC is not the same as the 1977 Tax Code. However, as sharply noted by Representative Edcel C. Lagman, in a January 13, 2022 Manila Times article:
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Marcos Jr. purposely omitted to cite Art. 10 of the RPC, which unequivocally provides: “This Code should be supplementary to such laws (special penal statutes) [boldface mine] unless the latter should specifically provide the contrary.” (Emphasis supplied.)
[NIRC of 1977 promulgates special penal laws, including the provision under which Marcos Jr. was convicted, which I assume is Sec. 254.]
Verily, the RPC is suppletory to the imposition of accessory penalty of perpetual disqualification on tax offenses under the NIRC which does not negate the supplementary application of the RPC. Thus, the accessory penalty of “perpetual disqualification from holding public office” on any person convicted of a crime under the NIRC attaches to the principal penalty (imprisonment or fine or both) and is automatically imposed by operation of law.
end
—Rep. Edcel C. Lagman, “The feeble defense of Ferdinand Marcos Jr.,” The Manila Times (January 13, 2022)
After reviewing the additional arguments concerning the possible grounds for the interim or perpetual disqualification of Marcos Jr., including the facts concerning his alleged non-payment of taxes and fines for his 1997 conviction for tax evasion, I believe that the most straightforward argument of the petitioners deals with the charge of material misrepresentation in the COC. This argument is readily resolved in their favor.
Addendum: The camp of Marcos Jr. also raised an interesting procedural issue.
December 23, 2021 Rappler.com article:
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MARCOS: [The petitioners] …also comingled grounds for COC cancelation and disqualification, and the rules of procedure said “combining grounds for a separate remedy, shall be summarily dismissed.” (Marcos memorandum)
end
Because of the possibility that any of the petitions could be dismissed on the basis of a technicality, I thought this procedural argument was worth a close look.
Representative Edcel C. Lagman, January 13, 2022 Manila Times article, pointedly answered:
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The petition has only a single cause of action—the denial of due course or cancellation of Marcos Jr.’s CoC for false material representation of his eligibility. His final conviction under the tax code and/or that such conviction is of a crime involving moral turpitude are only alternative reasons supporting the single cause of action. No procedural infraction was committed.
end
In order
to assess whether the petitioners had combined the grounds for multiple causes
of action, we have to review the 57-page petition of Buenafe et al. I don’t
have a copy of it.
Photo courtesy of Bongbong Marcos
ReplyDeletePhoto link:
https://www.flickr.com/photos/bongbongmarcos/27028867515
Gonzalinho
If Comelec doesn’t cancel Marcos Jr.’s COC, I’d really like to see how they argue themselves out of this one.
ReplyDeleteGonzalinho
There are sound legal bases for Marcos Jr.’s perpetual disqualification from public office. He is, in Justice Antonio Carpio’s words, a “certified convict.” If Marcos Jr. is perpetually disqualified from public office because of his criminal conviction, then his COC entails material misrepresentation and should be cancelled.
DeleteGonzalinho
FACTS OF MARCOS JR.’S CONVICTION FOR TAX EVASION
ReplyDelete[Emphasis between asterisks]
Marcos Jr. was charged in 1992 before the Quezon City Regional Trial Court for violation of Sections 45 and 50 of the Tax Code for failure to file his income tax returns for 1982 to 1985 as well as for failure to pay the proper income taxes for those years. Section 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 ten thousand pesos (P10,000.00) and suffer imprisonment of not less than one (1) year but not more than ten (10) years.” The law mandates a penalty of both fine and imprisonment.
In 1995, the trial court convicted Marcos Jr. and imposed on him the following penalty, among others: (1) “To serve imprisonment of three (3) years and pay a fine of P30,000.00 in Criminal Cases Nos. Q-91-24391 for failure to file income tax return for the year 1985”; and (2) “To serve imprisonment of three (3) years and pay a fine of P30,000.00 in Criminal Case No. Q-91-24390 for failure to pay income tax for the year 1985.”
Marcos Jr. appealed to the Court of Appeals (CA), which in 1997 affirmed the decision of the trial court with modification. The CA rendered a decision “FINDING (Marcos Jr.) guilty beyond reasonable doubt of violation of Section 45 of the NIRC for failure to file income tax returns for the taxable years 1982 to 1985 in Criminal Cases Nos. Q-91-24391, Q-93-29212, Q-93-29213, Q-93-29217.” The CA ordered Marcos Jr. to pay the corresponding deficiency taxes, penalties, and fine. Inexplicably, despite finding Marcos Jr. guilty of failure to file his income tax returns from 1982 to 1985, the *CA imposed on Marcos Jr. only a fine without any imprisonment, despite the clear mandatory requirement of the Tax Code that the penalty shall be both a fine and imprisonment.*
Marcos Jr. filed a notice of appeal to the Supreme Court but shortly thereafter withdrew his appeal, probably on the realization that the Supreme Court would most likely correct the error of the CA and impose the corresponding penalty of imprisonment. The Supreme Court granted Marcos Jr.’s motion to withdraw on Aug. 8, 2001 since the Solicitor General did not file his own appeal. Consequently, the decision of the CA convicting Marcos Jr. became final and executory.
Read more: https://opinion.inquirer.net/145705/can-marcos-jr-be-disqualified#ixzz7I8mCWn57
—Antonio T. Carpio, “Can Marcos Jr. be disqualified?” Philippine Daily Inquirer (October 28, 2021)
Gonzalinho
FREE PASS FOR MARCOS JR.
DeleteIt is a legal curiosity why the Court of Appeals deleted imprisonment after agreeing with a regional trial court that Marcos Jr. was guilty beyond reasonable doubt. In an interview Justice Carpio said, “Because he is Bongbong, they gave him a free pass.”
https://www.rappler.com/voices/thought-leaders/analysis-they-gave-bongbong-marcos-free-pass/
—John Molo, “[ANALYSIS] They gave Bongbong Marcos a free pass,” Rappler.com, November 26, 2021
Gonzalinho
BETRAYAL OF PUBLIC TRUST BY CA AND SC
DeletePractically all lawyers, law professors, and students agree that it was wrong for the Court of Appeals (CA) — after deciding to affirm the conviction of Ferdinand “Bongbong” Marcos Jr. by the Regional Trial Court in the tax evasion cases under the National Internal Revenue Code of 1977 — to delete the prison terms altogether and retain only the piddling fines imposed therein.
…When Marcos Jr. himself elevated that case to the Supreme Court (SC) in 1997, the matter was laid open for cursory examination and evaluation. If the Court had only done that minimum degree of due diligence, it could have easily seen from the very bare allegations contained in the appeal how the CA had gone rogue in its disposition of that case.
…While the SC may have been barred by that withdrawal (not to mention, “double jeopardy”) from doing anything about the CA’s scandalous decision, it cannot wash its hands of that mess. Nothing stood in the way of citing the CA justices concerned to show cause why no disciplinary action should be taken against them for that injudicious adventurism. In failing to do so, the high court itself betrayed the trust the public reposed in the judicial system, which is supposed to uphold the rule of law without fear or favor.
If any credence is to be given the recent poll surveys among potential voters, the son who idolized his father—the corrupt dictator the Filipino people kicked out of the country in 1986, along with his whole family, but bestowed by the high court in 2016 the “honor of a hero’s burial” (!)—is about to ascend to the same throne by “popular demand.” Thanks to the CA and the SC for contributing a lot to this abomination.
ROMANO M. MONTENEGRO
romor_monger@yahoo.com
Read more: https://opinion.inquirer.net/147342/court-of-appeals-and-supreme-court-betrayed-public-trust-in-marcos-jr-tax-ruling#ixzz7I8tzJbL5
—Romano M. Montenegro, “Court of Appeals and Supreme Court betrayed public trust in Marcos Jr. tax ruling,” Philippine Daily Inquirer (December 9, 2021)
Gonzalinho
CA JUSTICES OWE THE PEOPLE AN EXPLANATION
DeleteWe agree with letter-writer Romano Montenegro (12/9/21) that the Court of Appeals (CA) erred horrendously in deleting the imprisonment in the conviction of presidential aspirant Ferdinand “Bongbong” Marcos Jr. and imposing only the fines, thereby making that case look like a “jaywalking” violation.
What were those CA justices thinking? They owe the Filipino people an explanation. A Google search yielded their names: Gloria Paras, then 3rd division chairperson and writer of that 1997 decision, with Lourdes Tayao-Jaguros and Oswaldo Agcaoili concurring. Could they not read the law where any lawyer or layman could see that BOTH imprisonment and fine should be imposed for any conviction under the National Internal Revenue Code of 1977?
The Supreme Court likewise let Marcos Jr. off the hook so easily by refusing to see how the CA screwed the Filipino people over. It allowed the sudden withdrawal of Marcos Jr.’s submission without any consequence — never mind the travesty of justice that appeared on the face of his appeal. Without that verdict of imprisonment, voters who were polled in the latest surveys must have thought the anti-Marcos groups are just making a mountain out of a molehill.
YVETTE SAN LUIS
ysl.69996@gmail.com
Read more: https://opinion.inquirer.net/147515/ca-justices-in-marcos-jr-tax-case-owe-the-people-an-explanation#ixzz7I8vfBnZh
—Yvette San Luis, “CA justices in Marcos Jr. tax case owe the people an explanation,” Philippine Daily Inquirer (December 14, 2021)
Gonzalinho
UPHOLD THE RULE OF LAW
DeleteIN THE LAND OF IMPUNITY
CANCEL MARCOS JR.’S COC
Gonzalinho
CASUISTRY
ReplyDelete[Emphasis between asterisks]
“In essence, the Comelec agreed with the petitioners that the *representations made in Item 11 and Box 22 of the COC of Marcos Jr. are material but disagreed that they were false;* in the process, the Second Division ruled that there was no ground to cancel Marcos Jr.’s COC on the ground of material misrepresentation”
https://www.philstar.com/headlines/2022/01/17/2154462/comelec-junks-petition-cancel-marcos-coc
—“Comelec junks petition to cancel Marcos’ COC,” Philstar.com, January 17, 2022
Unfortunately, another highly politicized decision based on glaring illogic that degrades the rule of law and further erodes public trust in our longtime ailing justice system. The decision goes against the plain and obvious meaning of the law besides the incontrovertible facts of the case.
Gonzalinho
UP FOR APPEAL
ReplyDeleteA copy of the original text of the decision of the Comelec 2nd Division is provided by Rappler. See:
https://www.rappler.com/nation/full-text-document-comelec-division-ruling-petition-ferdinand-bongbong-marcos-jr-candidacy-2022/
—“FULL TEXT: Comelec 2nd division dismisses petition to cancel Marcos Jr.’s candidacy,” Rappler.com, January 17, 2022
Basically, the decision repeats the arguments of the camp of Marcos Jr.
The decision reads well. It is well-argued.
The most problematic argument, in my opinion, is that the decision exempts Marcos Jr. from the penalty of perpetual disqualification for not filing his income tax return for the year 1985 because he was no longer a public officer when the 1985 ITR came due. Yet when the perpetual disqualification clause came into effect on January 1, 1986, he was at the time a public officer responsible for the taxes due on his 1985 income for that position, whether or not the 1986 EDSA Revolution had taken place.
It is a disputable argument, in my opinion, to say that the penalty of perpetual disqualification no longer applies because he was no longer a public officer when the obligation came due, because he was a public officer when the obligation was originally incurred. At the inception of PD 1994’s effectivity on January 1, 1986, the obligation to file the 1985 ITR was already operative, not just on the date the ITR was due, March 18, 1986, because Marcos Jr. had already been compensated as a public officer for the taxable year 1985. When he did not file his ITR for the year 1985, he should be penalized as a public officer for not doing so, because he was a public officer when the obligation was originally incurred.
It will be interesting to see what objections the petitioners will raise against the ruling and its supporting arguments.
In any case, the ruling does not address the argument that I had recapitulated in my January 15, 2022 post, “Cancel the COC of Marcos Jr.,” which says that because Marcos Jr. was convicted under a special penal statute of the 1977 Tax Code—Section 45, according to the Comelec 2nd Division ruling—the automatic accessory penalty of perpetual disqualification from public office imposed by the Revised Penal Code or RPC, Article 73 applies to him because RPC, Article 10 says that RPC is suppletory to special penal laws unless the contrary is provided by the same.
Gonzalinho
“At the inception of PD 1994’s effectivity on January 1, 1986, the obligation to file the 1985 ITR was already operative, not just on the date the ITR was due, March 18, 1986, because Marcos Jr. had already been compensated as a public officer for the taxable year 1985. When he did not file his ITR for the year 1985, he should be penalized as a public officer for not doing so, because he was a public officer when the obligation was originally incurred.”
DeleteIt’s a line of argument worth investigating further.
Commissioner Antonio T. Kho, Jr. of the Comelec 2nd Division appears to pursue this line of argument in his separate opinion:
“Commissioner Kho, in his separate opinion, disagreed that the penalty of perpetual disqualification did not apply to Marcos since he was a public official in 1985.
“‘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,’ Kho said.
“‘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,’ he added.”
Read more: https://newsinfo.inquirer.net/1541634/comelec-junks-petition-to-scrap-marcos-jr-coc#ixzz7IN9IjxJ2
—Dona Z. Pazzibugan, “Comelec junks petition to scrap Bongbong Marcos COC,” Philippine Daily Inquirer (January 18, 2022)
Gonzalinho
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 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 this interpretative trick of self-exculpation reminiscent of a circus contortionist was the original intent of the law. The tax payment and income tax return obligations maintained from the point in time when they arose until not only the due date but also beyond that point in time until they were entirely extinguished.
DeleteGonzalinho
The question is whence we can attribute Marcos Jr.’s perpetual disqualification for public office. I’d say that since he was convicted under a special penal statute, the perpetual disqualification penalty of the Revised Penal Code applies by operation of law. It’s an automatic disqualification, and it doesn’t have to appear in the Court of Appeals sentence.
DeleteI would point out that a particular strength of this argument is its parsimony.
Gonzalinho