Will Disqualification Case Against Marcos Fly?

by Emmanuel S. Tipon, Esq.

Five petitions have been filed to have Ferdinand R. Marcos Jr.’s certificate of candidacy canceled or denied due course, or that he be disqualified, or that he be declared a nuisance candidate. The principal case is Buenafe vs. Marcos, Jr., SPA No. 21-156, filed on Nov. 2, 2021.

The main issues are: (1) whether Marcos, Jr. is eligible under the Constitution to be elected President, (2) whether he is disqualified under Section 12 of the Omnibus Election Code (OEC) for having been sentenced for a crime involving moral turpitude, and (3) whether he made a false material representation within the meaning of Section 78 of the OEC for having allegedly marked [x] NO in his Certificate of Candidacy in answer to Question 22.

“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?”

Marcos, Jr. has reportedly filed an answer to the petitions. The report does not state whether he raised affirmative defenses like laches and acquiescence.

I. Marcos, Jr. is eligible under the constitution to be elected president.

The Philippine Constitution of 1987 provides in Article VII, Section 2:

“No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election.”

There appears to be no serious question that Marcos, Jr. meets these requirements.

The Philippine Constitution – like the U.S. Constitution – is silent on the eligibility of a person who has used prohibited drugs or committed crimes.

Thus, Clinton’s candidacy was not challenged even though he admitted having “experimented” with marijuana during his student days at Oxford, England (sounds familiar?) but coyly explained “I didn’t inhale.” Comedian Johnny Carson quipped: “That’s the trouble with the Democrats. Even when they do something wrong, they don’t do it right.”

Two convicted felons ran for the U.S. presidency. The first was Eugene V. Debs who was convicted under the Espionage Act of 1917, Debs v. U.S., 249 U.S. 211 (1919). The second was Lyndon LaRouche who was convicted of securities law violations. They campaigned for the presidency in prison. Their eligibility for the presidency was not challenged.

The framers of the U.S. Constitution wanted almost everybody to have a chance to become president – even those who are “weak”. (Wise, Energetic, Amiable, Kind).  They did not expect a President to be perfect like God. They believed in “Let the people decide.”

The framers of the Philippine Constitution were inspired by the same beliefs and made the qualifications for the Presidency almost similar.

II. Marcos is not disqualified under Section 12 of the Omnibus Election Code (OEC) for having been sentenced for the crime of not filing income tax returns because it is not a crime involving moral turpitude.

The Omnibus Election Code of the Philippines (OEC) effective December 3, 1985 (B.P. Blg 881) provides in Section 12 that: “Any person who has … been sentenced . . .for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office.”A. The OEC does not supplement eligibility requirements for PresidentSince the OEC became effective on December 3, 1985, it does not supplement the 1987 Constitution. If the framers of the Constitution had intended to let Congress modify the eligibility requirements for President by engrafting the provisions of statutory enactments they would have provided in Article VII, Section 2, that these eligibility requirements may be supplemented “in the manner provided by law” or “unless otherwise provided by law” as it has done in other constitutional provisions. See, for example, Art. IV, Sec. 3 (relating to Philippine citizenship), Art. VI, Sec. 8 (date of election).

B. Failure to file income tax returns is not a “crime involving moral turpitude”

Marcos Jr. is not disqualified under OEC Sec. 12 because it does not define what constitutes a “crime involving moral turpitude”. Therefore, like beauty, a “crime involving moral turpitude” is in the eye of the beholder. This makes the statute unconstitutionally void for vagueness and violates the due process provision of the Constitution “by taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson v. United States, 576 US 591(2015).

Most importantly, the Supreme Court specifically held in 2009 that Marcos Jr.’s “‘failure to file an income tax return’ is not a crime involving moral turpitude,” and therefore he was not disqualified from being an executor of his father’s will. Republic of the Philippines vs. Ferdinand R. Marcos II and Imelda R. Marcos, G.R. Nos. 130371 & 130855, dated Aug. 4, 2009.

C. Disqualification is removed after five years from service of sentence.

OEC Sec. 12 provides that the disqualification of a candidate shall be deemed removed after the expiration of five years from his service of sentence. Marcos Jr. was sentenced by the Court of Appeals on October 31, 1997 to pay a fine without any imprisonment for failure to file his income tax returns and to pay the taxes thereon from 1982 to 1985. People v. Marcos, Jr., CA-G.R. CR No. 18569.

Marcos paid the fine and penalties to the BIR on December 27, 2001. Therefore, his disqualification is deemed removed since a period of five years has expired from the service of his sentence.

III. Marcos did not make a false material representation within the meaning of OEC Section 78.

The Certificate of Candidacy form asks in Question 22. “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?”

Marcos, Jr. allegedly marked the box [X] NO.

A. Question 22 is not relevant to the eligibility requirements for President which are specified in the Constitution, because a conviction for any offense does not bar eligibility.

Presidential Decree No. 1158 (Internal Revenue Law of 1977) which was signed by President Ferdinand E. Marcos on June 3, 1977 is the law allegedly violated by Marcos Jr. from 1983 to 1985. Ironic, isn’t it? This decree antedates the 1987 Constitution. Therefore, the Decree cannot supplement the Constitution. The Decree’s penalty provision in Sec. 252 (which includes disqualification from public office) is not engrafted into the eligibility requirements for President.

So why is the Certificate of Candidacy form asking about liability for perpetual disqualification to hold public office? The Certificate of Candidacy does not ask questions that disqualify a candidate for more serious matters as provided in OEC Sec. 12, such as being insane, incompetent, or convicted for subversion, insurrection, or rebellion?

B. Question 22 is tricky. What does “carries with it” mean? An offense does not “carry” anything. An offense is punished with something. Can someone be blamed if they answer “NO” to a tricky question?

The question could have been more artfully asked thus: “Have you been sentenced by a final and executory judgment to perpetual disqualification to hold public office?

C. A misrepresentation in a certificate of candidacy is material when it refers to qualification for elective office and affects the candidate’s eligibility.

Lluz v. Comelec, G.R. No. 172840, June 7, 2007. Having been convicted for failure to file income tax returns does not refer to qualification for President and does not affect the candidate’s eligibility for President.

Furthermore, the misrepresentation must be deliberate and willful. Fornier v. Poe, G.R. No. 161824, March 3, 2004. There is no evidence that Marcos, Jr.’s marking “NO” to the irrelevant and tricky question of “perpetual disqualification” was deliberate and willful.

D. The accessory penalty of disqualification from public office was not ordered by the trial court when it sentenced Marcos, Jr. on July 27, 1995 nor did the Court of Appeals order it when it sentenced Marcos, Jr. on October 31, 1997.

People v. Marcos, CA G.R. No. 18569, Oct. 31, 1997. Therefore, he is not disqualified from public office.

After a defendant is convicted, the judge will set a date for sentencing. “Before that time, a pre-sentence investigation will take place to help the judge determine the appropriate sentence from the range of possible sentences set out in the statutes. The pre-sentence investigation may consider the defendant’s prior criminal record, family situation, health, work record, and any other relevant factor.”

Perpetual disqualification is an accessory penalty. It is not self-executing. It is not automatic. The court must impose the accessory penalty during sentencing if it wants the convict to be punished with it.

Contrast this with another provision in Sec. 252 which says “If the offender is not a citizen of the Philippines, he shall be deported immediately after serving the sentence without further proceedings for deportation.”

Sec. 252 did not provide that the offender shall be perpetually disqualified from holding public office immediately without further proceedings.

[A competent adviser to Marcos, Jr., could have advised him to leave the answer to Question 22 blank and write “See attached” and then attach an explanation such as the one discussed above.]

IV. Are there equitable defenses of Marcos, Jr.?
A. Laches
The defense of laches has been successfully invoked in election cases to dismiss challenges to certificates of candidacy. State ex rel. Duclos v. Hamilton Cty Bd. of Elections, 145 Ohio St. 3d 254 (Feb. 2, 2016); Liddy v. Lamone, 398 Md.233 (March 29, 2007).

“The elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the other party.”  State ex rel. Duclos v. Hamilton Cty Bd. of Elections, 145 Ohio St. 3d 254 (Feb. 2, 2016).

Marcos, Jr. could invoke the defense of laches.

There is (1) unreasonable delay or lapse of time in asserting a right by the petitioners, since Marcos Jr.’s conviction was on October 31, 1997, which is the starting date of his alleged disqualification; (2) absence of an excuse for the delay in challenging Marcos, Jr., (3) knowledge, actual or constructive, of the injury or wrong, since the conviction was well-publicized, and (4) prejudice to the other party, since Marcos and his supporters have spent time, money, and effort in filing a certificate and preparing for his campaign which they could have avoided if  Marcos’ eligibility had been successfully challenged when he ran in 1992 as representative of the second district of Ilocos Norte; prejudice to other persons such as his running mate, who would have run for the presidency if Marcos had been declared ineligible in 1992;  prejudice to the electorate who could have supported other candidates for the presidency; and prejudice to the Comelec which has already expended time, money, and effort in accepting and processing the certificate of candidacy of Marcos, Jr. and now conducting hearings on the various petitions filed which should have been spent preparing for the election.

The “unreasonable delay can therefore prejudice the administration of justice by compelling the court to ‘steamroll through… delicate legal issues in order to meet’ the ballot printing deadlines.”

“Allowing challenges to be brought at such a late date would call into question the value and quality of our entire election process and would only serve as a catalyst for future challenges. Such delayed challenges go to the core of our democratic system and cannot be tolerated.”  Liddy v. Lamone, 398 Md.233 (March 29, 2007).

B. Silence means consent
According to a Latin maxim: “Qui tacet consentire videtur, ubi loqui debuit ac potuit.” This means “He who is silent, when he ought to have spoken and was able to, is taken to agree.”

After his conviction for not filing income tax returns, which people knew or ought to have known because it was publicized, Marcos was a candidate for and won elective offices for the provincial governor, congressman, and senator. He also ran for vice president. Nobody challenged his qualification for these offices. The people (including the petitioners in these cases) were silent when they ought to have spoken, even though they were able to. This can be taken as an agreement that Marcos, Jr. was not disqualified.

I know an Ilocano lawyer who once asked a beautiful Spanish mestiza from Metro Manila: “May I kiss you?” After several moments of silence, the lawyer kissed her. “Why did you kiss me?” asked the mestiza. “Qui tacet consentire videtur,” whispered the lawyer. “Qui tacet whatever,” cooed the mestiza as she kissed the lawyer. They loved happily ever after.

The information provided in this article is not legal advice. Publication of this information is not intended to create, and receipt by you does not constitute an attorney-client relationship.

ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publisher and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m.  Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645.  E-Mail: filamlaw@yahoo.com. Website: https://www.tiponlaw.com.

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