Yesterday, two leading dailies carried in their front-page headlines the news that the Commission on Elections (Comelec)’s First Division has “junk(ed)” the three consolidated petitions for the disqualification of Ferdinand Marcos Jr. on a tax-code conviction in 1995, and ruled him as “qualified to be elected” president in the May 9 national elections.
The First Division is now composed of only two commissioners after its presiding officer, Commissioner Rowena Guanzon, retired on Feb. 2, and her separate opinion disqualifying Marcos Jr. had been set aside. Following Guanzon’s retirement, along with Comelec Chairperson Sheriff Abas and Commissioner Antonio Kho Jr., only four commissioners compose the Comelec – all appointees of President Duterte.
The three petitions were based on the ground that Marcos Jr. was barred for life from holding public office after being convicted for violating the 1977 National Internal Revenue Code (NIRC), having repeatedly failed to file income tax returns and pay taxes, from 1982 to 1985, while he served as vice governor, then as governor, of Ilocos Norte.
However, the two newspapers highlighted two different aspects of the ruling.
The Philippine STAR quoted in its front-page subhead: “Failure to file tax return not immoral.” It followed this in the news report with the following quotations from the ruling:
“Is the failure to file tax returns inherently immoral? We submit it is not. The failure to file tax returns is not inherently wrong in the absence of a law punishing it. The said omission became punishable only through the enactment of the Tax Code.”
The 1977 NIRC recognizes that failure to file income tax return is not a grave offense, the ruling said, as it gives “the court the discretion to either impose a fine, imprisonment, or both.” It added: “Was there fraud in the failure to file income tax returns of respondent [Marcos Jr.]? We don’t think so.”
On the other hand, the Inquirer’s front-page headline subhead reads: “The ruling says Ferdinand Marcos Jr. is ‘qualified to be elected’ president because the penalty for his conviction in the tax case did not ‘clearly, unequivocally and expressly’ bar him from forever holding any public office.”
Marcos Jr. was tried and convicted of violating the 1977 NIRC in 1995 by the Quezon City Regional Trial Court, which imposed on him the following: 1) three-year imprisonment and a fine of P30,000 for “failure to file income tax return for the year 1985” and 2) three-year imprisonment and another P30,000 fine for “failure to pay income tax for the year 1985.”
In 1997, he questioned the ruling before the Court of Appeals, which affirmed the decision of the lower court. However, the CA imposed on Marcos Jr. only a fine without imprisonment. Marcos Jr. filed a notice of appeal to the Supreme Court but soon withdrew it, thus the CA ruling became final and executory in 2001.
On that CA decision, retired Supreme Court senior associate justice Antonio Carpio observed that the appeals court reduced the penalty imposed by the RTC “despite the clear mandatory requirement of the Tax Code that the penalty shall be both a fine and imprisonment.” He wrote so in his Inquirer opinion page commentary on Oct. 28, 2021. On Nov. 4, he wrote that Section 253(c) of the NIRC provided for perpetual disqualification from public office for the violations committed by Marcos Jr.
In its news account, the Inquirer said the Third Division ruling noted that the CA decision did not explicitly state that Marcos Jr. was penalized with perpetual disqualification from public office.
“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 violation of Section 45 of the 1977 NIRC is deemed written in the decision,” it quoted the ruling.
Last Jan. 17, the Comelec’s Second Division essentially took the same stance in dismissing a petition to cancel Marcos Jr.’s certificate of candidacy or COC. The petitioners in that case have filed an appeal to the Comelec en banc.
On this point, probably the parties seeking the cancellation of Marcos Jr.’s COC or his disqualification are closely reading retired Chief Justice Artemio Panganiban’s commentary in the Inquirer opinion page last Jan. 30. The Comelec ought to read it as well.
After going over the Second Division’s Jan. 17 resolution and the petitioners’ defense counsel’s motion for reconsideration (MR), Panganiban categorically expressed his views:
On Marcos Jr.’s “No” answer to the question, “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?” he wrote:
“(Marcos Jr.’s) ‘No’ answer… is ‘false’ because the offense he was convicted of carried with it – in fact and in truth – the accessory penalty of disqualification from 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.’
“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 cancelled though, in the past, the candidate had been judged by the Comelec to be eligible to run, and has served twice as mayor,” he added.
The former Chief Justice capped his comment thus: “I also think that [Marcos Jr.] cannot be said to be unaware of the consequence 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 all law students, Ignorantia juris neminem excusat.”
These issues are not likely to go away during the 90-day presidential campaigning that began on Feb. 8.
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Published in Philippine Star
February 12, 2022