Disqualify Marcos Jr.

Comelec Commissioner Rowena Guanzon

DISQUALIFY MARCOS JR.

Commissioner Maria Rowena Amelia V. Guanzon released on January 31, 2022 her separate opinion for the case before the COMELEC First Division regarding the disqualification of Marcos Jr. from running for public office—in this instance, for president of the Philippines—in the 2022 elections.

Her vote and separate opinion were excluded—by premeditation, no doubt—from the official decision promulgated on February 10, 2022. Guanzon had officially retired eight days before, February 2.

Original text of Guanzon’s separate opinion of is available here:

https://www.rappler.com/nation/elections/full-text-document-comelec-commissioner-rowena-guanzon-opinion-ferdinand-bongbong-marcos-jr-disqualification-case/

—“FULL TEXT: Separate opinion of Comelec’s Rowena Guanzon on cases vs Marcos Jr.,” Rappler.com, January 31, 2022

Two major areas of her separate opinion are discussed here.

Automatic Imposition of the Penalty of Perpetual Disqualification

Guanzon holds that penalty of perpetual disqualification from public office, according to Section 252(c) of the 1977 National Internal Revenue Code (NIRC), as amended by Presidential Decree (PD) 1994, is not imposed by operation of law.

She argues that the automatic application of accessory penalties indicated in Article 73 of the Revised Penal Code (RPC) does not apply to the provision. It applies only to the accessory penalties in Articles 40 to 45 of the RPC, because the RPC explicitly applies the accessory penalties to Articles 40 to 45. Her argument is convincing.

However, her argument that the NIRC provision as amended by PD 1994 does not automatically impose perpetual disqualification, is not persuasive. She writes:

“Petitioners argued that the penalty of perpetual disqualification is deemed written in the CA [Court of Appeals] Decision. The Commission is regrettably unable to find any legal basis to allow the imposition of the penalty of perpetual disqualification upon Respondent when the same was not imposed to begin with.”

This argument assumes that unless a provision explicitly declares that a penalty is imposed automatically, then it is not. Furthermore, any penalties indicated in the provision in question should be understood as discretionary. If the court in exercising due discretion decides not to impose the penalty, then the penalty is deemed not imposed.

The basis of the argument appears to be some customary legal interpretation with respect to provisions that do not explicitly and automatically impose penalties.

The layman would say that the law should be applied as written and fold their arms in resistance.

Ostensibly, legal practice indicates that absent any explicit provision that automatically imposes a penalty the court is given the discretion not to apply it. This interpretation assigns the court the discretion not to follow the law and even to contravene it—which is what has happened in this particular case.

Guanzon does not take up the issue of whether or not Marcos Jr. was a public officer at the time when his 1985 income tax return (ITR) came due on March 18, 1986. Notably, this issue plays a critical role in the Second Division decision in favor of Marcos Jr. On the aforementioned date, the NIRC provision in question, as amended by PD 1994, allegedly does not apply, because Marcos Jr. was purportedly no longer a public officer, according to the Second Division.

Non-Filing of Income Tax Return Constitutes Moral Turpitude

Guanzon’s opinion that Marcos Jr.’s criminal conviction for not filing his income tax returns for the period 1982-85 constitutes moral turpitude is based on two cogent arguments.

The first argument takes up the opinion in Republic of the Philippines vs. Marcos that failure to file an Income Tax Return is not a crime involving moral turpitude.

Guanzon observes that the opinion expressed in this case by the Supreme Court was “hypothetical” and “theoretical,” not directly involved in resolving the case in question. Therefore, it was an obiter dictum, without the binding force of judicial precedent.

“The Supreme Court’s continued discussion of the alleged disqualification of respondent based on his conviction for failure to file his income tax returns is already an obiter dictum.

“…the Court’s statements concerning moral turpitude were only uttered by the way, and were not essential for the resolution of the issue in Marcos.”

Her argument is persuasive.

Guanzon’s second argument is that Marcos Jr.’s “repeated and persistent failure” to file his ITRs for the years 1982-85 constitutes moral turpitude.

According to Guanzon, Marcos Jr.’s conduct prevented the BIR from determining the existence of any discrepancies between the tax withheld and the tax due; it showed “a deliberate and conscious effort to evade a positive duty required by law”; it was done “while occupying a very important chief executive position in the government tasked with the duty to enforce the laws of the land”; and “it is reflective of a serious defect in one’s moral fiber.”

She also concluded that the documents submitted by Marcos Jr. did not adequately attest to the claim that he had paid the tax deficiencies and fines imposed by the Court of Appeals.

To begin with, the Land Bank of the Philippines O.R. issued on December 27, 2001 stipulated payment for a lease rental, and it contained a correction about the date of issuance that was not counter-signed.

Furthermore, the BIR Certification did not indicate that the amounts paid were for the Court of Appeals obligations, and it bore no seal or attestation of the signatories.

Absent, too, was a record of transmittal of payment to Regional Trial Court (RTC) 105, the proper destination for settling the Court of Appeals obligations.

The dubious character of the submitted documents not only implies their fraudulent intent but also indicates the moral deficiency of their proponent, Marcos Jr.

Guanzon’s approach basically invokes the definition of “moral turpitude” and then applies it to the circumstances of the case. Because the concept of “moral turpitude” is open to varying interpretation, this tack is unavoidably imprecise and susceptible to dispute.

However, when keenly wrought logic argues robustly for both sides of an issue, the tipping point in a decision that promises the most felicitous outcome in this case points to a judicious assessment of the moral standing of the subject in question. In this respect, Guanzon is on the right track. Her judgment of “moral turpitude” is not only supremely relevant to the case but also underscores the morally deficient character of a man driven to assume vast powers over the millions of people who make up the Philippine nation, not to mention their considerable economic resources. Under these circumstances, COMELEC would do well to make a “political” decision, the term used not in a prejudicial sense but rather according to its most propitious ramifications.

This election season, many sound, well-based, detailed, and comprehensive objections have been raised by reputable sources about the morally deficient character of Marcos Jr.

Bishop Antonio Ledesma, SJ, for example, has advanced four outstanding concerns about Marcos Jr.’s character.

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PLUNDER AND CORRUPTION CHARGES

1. “$683 Million (or ₱34 billion) worth of Marcos assets in various Swiss banks were declared as ill-gotten wealth, based on a July 2003 Supreme Court decision.”(newsinfo.inquirer.net)

2. “Marcos Jr. is aware of major judicial rulings in three countries (the Philippines, the United States and Switzerland) over the years that prove the existence of ill-gotten wealth. But he has decided to look the other way.” (Prof. Ed Garcia, ConCon delegate, 1987)

3. “In 1991, the BIR assessed the amount of ₱23.3 billion in estate taxes on the estate left by the dictator Marcos.  Bongbong is the administrator of the estate of his father. Bongbong ignored the collection notices since then. The total now due of the estate taxes and the interest and surcharges thereon is ₱203.8 billion…. Bongbong was implicated in the Janet Napoles pork barrel scam. He placed several million pesos in 2011 and 2012 in nine short projects in four Napoles bogus NGOs.” (Ret. Chief Justice Hilario Davide, Jr.)

4. “The World Bank and UN Office on Drugs and Crimes said Marcos, having the longest reign as a dictator, stole between $5 billion and $10 billion from the country’s coffers. The corruption was so outrageous that it earned the distinction of being “The Greatest Robbery of a Government” from the Guinness Book of World Records.” (Kurt dela Peña, in World Mission)

TAX EVASION AND MORAL TURPITUDE

5. “I find that the Respondent’s repeated and persistent non-filing of income tax returns in 1982, 1983, 1984 and 1985, which resulted in his conviction, constitutes an offense involving moral turpitude;…the fact that these omissions were repeated, persistent and consistent is reflective already of a conscious design and intent to avoid a positive duty under the law and intent to evade the taxes due…. Significantly, at the time when Respondent chose not to comply with the duty to society, not only was he a high-ranking government official, he was also the son of the President of the Philippines.” (Comelec Commissioner Rowena Guanzon)

6. “He has been found guilty by a Regional Trial Court and the Court of Appeals of tax evasion for the billions of pesos in unpaid taxes racked up by the Marcos estate.” (Prof. E. Garcia)

7. “The election of Bongbong would be the installation of a President who is a confirmed tax evader. He will serve as a model for and protector of present-day and future tax evaders…. As a tax evader, Bongbong has shown that he has no respect for our laws.” (CJ H. Davide)

RE-INTERPRETING THE INIQUITIES OF MARTIAL LAW

8. “Bongbong has shown no remorse for all the atrocities, evils and iniquities his father committed during the Martial Law years. He repeatedly said that he will not apologize for these because he was still very young then to know them. This is not true. Upon the proclamation of Martial Law, he was already a bright man of 15 years.” (CJ H. Davide)

9. “He has never recognized the wrongdoing that took place under the Marcos watch, has never apologized for it, sought pardon, nor provided restitution to countless victims and their loved ones whose lives had been shattered.” (Prof. E. Garcia)

10. “As ecumenical church leaders, let us commemorate the People Power Revolution of EDSA by not forgetting the dark shadows of Martial Law — the dire opposite of a Golden Age.” (Abp. Jose Cabantan, IFI Bp. Felixberto Calang, and other religious leaders)

DELIBERATE AND WIDESPREAD DISINFORMATION

11. “We are appalled by the blatant and subtle distortion, manipulation, cover-up, repression and abuse of the truth, like: historical revisionism — the distortion of history or its denial; the proliferation of fake news and false stories; disinformation…to influence the opinion of people, to hide the truth, to malign and blackmail people. There are troll farms which sow the virus of lies.” (Catholic Bishops’ Conference of the Philippines)

12. “We vehemently reject the candidates who run under this platform of lies and historical distortion — disseminated in social media by massively-financed trolls — particularly the brazen presentation of the Marcos dictatorship and Martial Law as benevolent regimes in our political history.” (Catholic Educational Association of the Philippines)

13. “He has engaged the services of consultants and social media experts on the ‘brand rehabilitation’ of the Marcos name. Aided by an army of paid trolls, he has conducted his electoral campaign, in large part, on a strategy of misinformation that seeks to mislead rather than clarify.  At worst, his is a playbook built on outright lies…. He has imitated the exaggerated exploits and ‘fake medals’ of his father and applied them to his own ‘fake degree’ from Oxford University.” (Prof. E. Garcia)

These then are major moral issues that should be discussed…: plunder and corruption charges; conviction of tax evasion; complicity and silence with regard to the iniquities of Martial Law; deliberate and widespread disinformation used in the electoral campaign.

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https://www.cbcplaiko.org/2022/03/26/disturbing-moral-issues-on-the-candidacy-of-fm-jr/

—Archbishop-Emeritus Antonio Ledesma, SJ, “Disturbing Moral Issues on the Candidacy of FM Jr.,” Sangguniang Laiko ng Pilipinas, March 26, 2022

Fides Lim, spokesperson of the support organization Kapatid – Families and Friends of Political Prisoners, and one of the petitioners in the cancellation of the Marcos Jr. Certificate of Candidacy before the COMELEC Second Division, clarifies the fundamental issue in the case (0:38):

“The issue here in fact, is the degree of morality that we should demand as voters from the presidential candidates. Kaya this petition was filed. Kasi ang sinasabi namin, he does not have that kind of moral integrity, character, honesty, transparency required of a presidential candidate. When he checked that box na wala naman daw siyang prior conviction which carries with it the perpetual disqualification from public office and in fact also carries with it the disqualification from the right to vote and to participate in any election.”

https://www.facebook.com/watch/?v=472186290784939 

—one news, “Marcos Jr. issue is degree of morality we should demand from candidates,” Facebook video, 3:16 minutes, n.d.

Retired Justice Antonio T. Carpio, displaying his characteristically pointed analysis, not to mention exemplary integrity, expounds on good moral character as an absolutely critical qualification for the office of the president of the Philippines (20:34):

“All we have to do is look back at our history, recent history…all the presidents who lied, who stole, who killed…that means they were afflicted with moral turpitude…they caused irreparable damage to the nation. So the president, of all people, of all government officials, should have good moral character. For me, that’s the most important. Because if the president doesn’t have good moral character that means he can justify anything that he does as valid, even if the law says it’s void. If you don’t have good moral character, you can kill, you can steal, you can lie, and that’s terrible.”

https://www.youtube.com/watch?v=4XiCbbnChTM

—ANC 24/7, “After the Fact: Retired SC Justice Antonio Carpio on why Bongbong Marcos should be disqualified | ANC,” YouTube video, 24:44 minutes, November 5, 2021

One of the foremost victims of the Marcos martial law regime, Sergio Osmeña III, broadcasts grave moral disapprobation and dire words of warning, justifiably so, about the prospect of a Marcos Jr. presidency.

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Re-electionist Senator Sergio Osmeña III said it will be bad for the country’s image if Senator Ferdinand “Bongbong” Marcos Jr wins as vice president.

In the eyes of the world, Osmeña said, Bongbong’s father, the late former President Ferdinand Marcos, is the second top plunderer trailing Indonesia’s Suharto.

“And they would be very surprised if the Philippines will be electing the very son, namesake, to win, and that will show that our moral standards are not high,” Osmeña said in a press conference on Thursday, March 3.

“If Hitler had a son and the son came back now 50 years after to run for president of Germany, I’m sure they will never let him,” he added.

The veteran senator, who is helping Marcos’ rival Liberal Party vice presidential bet Leni Robredo, said that, if Marcos wins and eventually becomes president in the future, he could “reverse” the country’s gains in the past 30 years.

Osmeña, together with Geny Lopez, was imprisoned for 5 years during the Marcos regime.

“He could reverse everything that what we have been doing for the past 30 years, really. Will he give coco levy back to the cronies? Will he give sugar money, tobacco money back? Lahat ng sinurrender ng cronies niya, ano, isasauli sa cronies? (Everything that his cronies surrendered, what, he will return them to the cronies?)” Osmeña said, referring to the sequested assets of Marcos cronies.

“So what happens, do we reverse everything the PCGG (Presidential Commission on Good Government) did? Do we give artwork back to Imelda [Marcos]? That’s about, wow. People don’t realize the value of those artworks. Those are $20-30 million each. That’s about P1 billion each. Do we give her back her penthouses in New York? Do we give back palaces around the country? Tell me if we will reverse, believe me many of that will be reversed,” he stressed.

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https://www.rappler.com/nation/elections/124526-bongbong-marcos-serge-osmena-martial-law/

—“Marcos Jr victory will show low ‘moral standards’ of PH – Osmeña,” Rappler.com, March 3, 2016

Osmeña is correct in associating the objectionable moral character of Marcos Jr. with the deficient moral standards of those who elect him, because voting is significantly an exercise in psychological projection. It is not very subtly an expression of identity politics.

I fully agree with the grave reservations propounded by the trustworthy and eminent voices herein cited. Their views are objectively based on verifiable empirical information.

The Philippine electorate would be grievously and dangerously mistaken to place this morally reprehensible man in such a position of embracing power. 

“The last condition of that person is worse than the first. Thus it will be with this evil generation.” (Matthew 12:45)