Three Disqualification Cases Against Marcos Did Not Fly, COMELEC Shot Them Down Together

by Atty. Emmanuel S. Tipon

On Feb. 10, 2022, the COMELEC former First Division, composed of Marlon S. Casquejo and Aimee P. Ferolino dismissed for lack of merit three petitions to disqualify Ferdinand R. Marcos, Jr.

Those cases are Ilagan v. Marcos, Akbayan Citizens’ Action Party v. Marcos, and Mangelen v Marcos.

The consolidated petitions raised the following common grounds:

(1) Respondent is perpetually disqualified from holding public office for his conviction for not filing income returns even if the RTC and CA decisions did not impose this penalty;

(2) Respondent was sentenced to a penalty of imprisonment of more than 18 months by the RTC, but the CA decision that eliminated it is null and void because it was issued with grave abuse of discretion;

(3) Respondent was convicted of crimes involving moral turpitude.

Petitioner Ilagan also alleged that Respondent committed false material representations when he stated in Item 22 of his Certificate of Candidacy that he has not 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.

Petitioner Mangelen also questioned the validity of Respondent’s Certificate of Nomination and Acceptance (CONA) purportedly issued by the Partido Federal ng Pilipinas saying it was issued without his knowledge, concurrence and signature as Chairman of said political party.

I. Penalty of perpetual disqualification is a principal penalty.
The COMELEC held that the penalty of perpetual disqualification is a principal penalty which must be imposed by the court which rendered the decision before it can be executed against the person sentenced. The CA did not impose this penalty on respondent.

Section 286 of Presidential Decree 1994 (Tax Code) states  “in addition, he shall be dismissed from service and perpetually disqualified from holding any public office, to vote and to participate in any election.

COMELEC said that a proper dispositive portion of a decision should include the penalty imposed. A penalty that would deprive a citizen of his political right to be voted for in an election should be clearly, unequivocally, and expressly stated in the decision.

The withholding of such right cannot be made dependent on a mere proposition that the penalty of perpetual disqualification for a violation of Section 45 of the 1977 NIRC is deemed written in the decision.

II. COMELEC cannot set aside court of appeals decision
Petitioners claimed that the CA Decision was void by ignoring a mandatory directive of section 254 of NIRC of 1977 which mandated the imposition of both a fine and imprisonment for any conviction due to failure to file a return or pay taxes.

The COMELEC deplored the citation by petitioners of  provisions of law that were not yet applicable in this case. The applicable provision for the years 1982 to 1985 was not section 254 but section 73 of the 1977 NIRC which gives the court discretion to impose either fine, imprisonment, or both. The penalty of fine and imprisonment was introduced only upon the affectivity of RA 8424 on Dec. 11, 1998.

The COMELEC warned the Petitioners for deliberately citing  an inapplicable provision of law to mislead and confuse the COMELEC.

The COMELEC said that whether or not the CA decision is void, it does not have the power to modify another adjudicative body’s final and executory judgment.

III. Non-filing of income tax returns is not a crime involving moral turpitude (CIMT)
Moral turpitude has been defined as everything which is contrary to justice, modesty, or good morals; an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society in general. Ty-Delgado vs. House of Representatives Electoral Tribunal and Pichay, G.R. No. 219603, 26 January 2016.

The COMELEC enumerated the following requirements for a CIMT.

First, moral turpitude implies something immoral in itself, regardless of the fact that it is punishable by law or not. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. The failure to file tax returns is not inherently immoral. It is not inherently wrong in the absence of a law punishing it.

Second, as a general rule, all crimes of which fraud is an element are looked on as involving moral turpitude. There was no fraud involved in the failure to file income tax returns of respondent.

Third, in several decided cases, not once did the Supreme Court categorically rule that failure to file income tax is a crime involving moral turpitude. Although evasion of income tax is a crime involving moral turpitude, the failure to file income tax returns is not considered a form of tax evasion.

The COMELEC said that the duty to withhold taxes from government employees (like Marcos) has been reposed by law in the Government. Consequently, any deficiency in the taxes so withheld is likewise attributable to and/or determinable by the government and not by the employee concerned.

The term “willful” in tax crime statutes means a voluntary, intentional violation of a known legal duty, and bad faith or bad purpose need not be shown. The COMELEC noted that the records are bereft of any evidence that respondent voluntarily and intentionally violated the law. While he was found by a competent authority to have failed to file his income tax returns, failing to file a return, standing alone, is not an attempt to evade or defeat tax.

To prove the absence of any ill-intention and bad faith on his part, respondent submitted a BIR certification and a Landbank Official Receipt dated 27 December 2001 which showed his compliance with the CA Decision by paying the deficiency taxes and fines in the total amount of  P67,137.27.

Finally, the Supreme Court categorically ruled that a failure to file a tax return is not a crime involving moral turpitude as the more omission is already a violation regardless of the fraudulent intent or willfulness of the individual. Republic of the Philippines vs. Ferdinand R. Marcos II and Imelda R. Marcos. G.R. Nos. 130371 & 130855, dated Aug. 4, 2009.

Therefore Marcos Jr.’s conviction for four violations of Section 45 of the NIRC should not serve as a basis to disqualify him to be appointed as an executor of the will of his father.

The COMELEC pointed out that even if the Supreme Court’s discussion on moral turpitude is an obiter dictum, as it was merely an opinion upon some question of law that is not necessary for the resolution of the issues in the said case, nevertheless it may be followed if sufficiently persuasive, and there is no legal infirmity in adopting the said dictum in the hopes of finally putting the issue on moral turpitude to rest.

IV. Respondent is qualified to be elected as president of the Philippines.
The COMELEC said that there are only three instances where a person may be disqualified to hold public office under Sec. 12 of the Omnibus Election Code. Respondent’s sentence to pay fines does not fall under any of the instances for disqualification.

Thus, whether or not he paid the fines and penalties is immaterial, as his sentence did not fall within the purview of Sec. 12.

NOTE: The case filed by Pudno Nga Ilokano (Margarita Salandanan) vs. Marcos seeking to disqualify Marcos claiming that he was perpetually disqualified from holding any public office and to vote,  and therefore is barred from running for president, remains undecided by the Second Division.

The case of Lihaylihay vs. Marcos claiming that Marcos was a nuisance candidate was dismissed by the COMELEC on December 16, 2021.  The case of Buenafe v. Marcos seeking to cancel the certificate of candidacy of Marcos was dismissed on January 17, 2022 by the Second Division and is before the COMELEC en banc.

According to a report attributed to CNN the case filed by Tiburcio Marcos vs. Marcos seeking to cancel the latter’s certificate of candidacy claiming that Bongbong is not the real son of Ferdinand Marcos, Sr. and that the real Bongbong died decades ago and was replaced by an impostor who filed his COC for this year’s election was dismissed by the COMELEC Second Division on January 31, 2022, but the decision has not been released.

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.