2022 PH presidential race

Point by point: Cases vs Bongbong Marcos’ candidacy and his answers so far

Lian Buan
Point by point: Cases vs Bongbong Marcos’ candidacy and his answers so far

TANDEM. Bongbong Marcos Jr. and Sara Duterte in Cavite on December 9, 2021.

Photo courtesy of UniTeam Alliance/Lakas-CMD

(1st UPDATE) The cases are very likely to reach the Supreme Court

MANILA, Philippines – There are five remaining petitions against the presidential candidacy of the dictator’s son, Ferdinand “Bongbong” Marcos Jr., with one reaching the finish line at the Commission on Elections (Comelec), marking the start of what is sure to be a legal drama for the 2022 elections.

We lay out here point by point the main arguments of the petitions, and Marcos’ answers to them so far, either by way of an official pleading courtesy of his lawyer, his father’s solicitor general Estelito Mendoza, an answer during a Comelec hearing or press statements of his spokesperson Vic Rodriguez.

We add some remarks too where necessary.

There are two petitions to cancel the certificate of candidacy (COC) of Marcos, and four petitions for disqualification. Two other petitions have already been denied.

The first-ever case, a petition to cancel his COC filed by civic leaders and represented by Ted Te, has been submitted for resolution by the Second Division. Others are set to undergo a hearing by the First Division.

For purposes of this article, we will focus on the grounds relating to Marcos’ prior tax conviction, which are largely the arguments of most petitions. Others include one filed by a former official of Marcos’ party, Partido Federal ng Pilipinas (PFP), which alleges irregularity in the party nomination.

First, we differentiate a petition to cancel COC and disqualification. Cancelation of COC had a set early deadline (now lapsed), while disqualification may be filed at any time before proclamation. Cancelation of COC would not allow substitution for the candidate because, in the first place, there would no longer be any COC to speak of. Disqualification allows substitution as long as the substitute has the same surname.

Cancelation of COC must be based on only one ground – material representation. Disqualification has several grounds, including a prior conviction, which is relevant in Marcos’ case.

The petitions to cancel COC frame their arguments on eligibility. For them, Marcos knew that his tax conviction has made him ineligible for public office, and yet he still indicated in his COC that he has not been found guilty of any offense that disqualified him from public office. That, for petitioners, is material representation.

We go to the points.

Imprisonment and moral turpitude

ISSUE: Section 12 of the Omnibus Election Code says any person convicted by final judgment for subversion, insurrection, rebellion, or for any crime involving moral turpitude is disqualified. Disqualification also applies to a conviction with a sentence of more than 18 months.

REMARKS: Marcos was convicted of failure to file income tax returns, so that removed disqualification by conviction of subversion, insurrection, and rebellion. When the Court of Appeals (CA) modified the ruling in 1997, where the court acquitted him of failure to pay his income tax, but sustained guilt on four counts of failure to file his ITR, the appellate court did not impose a prison sentence, only fines. Some lawyers found this strange since the tax code imposes a prison sentence on failure to file ITR, and the CA did not explain its ruling. Still, the only remaining issue on this point is: is failure to file an ITR considered a crime of moral turpitude?

PETITIONERS: Yes, because moral turpitude involves anything that is contrary to fairness and justice, and Marcos’ “repeated failure to file his ITRs cannot be characterized as mere omission but constitutes willfullness and fraudulent intent…plainly showing moral turpitude. (Te petition)

MARCOS: No, because “failure to file tax returns is not inherently immoral” and that “Marcos was not motivated by any ill will when he omitted to file his ITR.” The Supreme Court Third Division, when it allowed Marcos in 2009 to become executor of the late dictator’s will, said that “failure to file an income tax return is not a crime involving moral turpitude.” (Marcos memorandum)

Perpetual disqualification

ISSUE: Many petitions use this argument: the tax code has an accessory penalty of perpetual disqualification from office. For petitioners, the tax conviction alone is a disqualifying ground, never mind if it’s a crime involving moral turpitude. However, the 1997 CA ruling did not explicitly impose a perpetual disqualification penalty.

PETITIONERS: The CA ruling didn’t have to spell it out because “it is deemed written into the conviction.” (Te memorandum) Article 73 of the Revised Penal Code says accessory penalties are “presumed” and “must be understood that [they are] also imposed.” (Christian Monsod petition)

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, the tax code is not the RPC. (Marcos memorandum)

Payment of taxes

ISSUE: In 1997, when the CA sustained Marcos’ guilt of not filing ITRs from 1982 to 1985, it ordered him to pay: (1) deficient tax and (2) fines worth P36,000 plus interest and surcharge. Has he paid this?

PETITIONERS: There is no record on file of compliance to payment both from the branch clerk of court and overall clerk of court of the Quezon City Regional Trial Court which first convicted Marcos in 1995. (Te memorandum)

MARCOS: Yes, he paid P67,137 in 2001. (BIR certification showed by Rodriguez in a December 22 press conference)

REMARKS: In Marcos’ first answer to the Comelec on November 19, his lawyer said the CA’s order to pay deficient tax “is unclear.” What is clear, he said, was that he was ordered to pay fines. In the BIR certification shown to the media on December 22, a breakdown identified P13,137 as “total deficiency income tax.” The rest were fines with surcharges. The certification was dated December 9, 2021.

Tax records

ISSUE: Did he pay or did he not? Was it a complete payment of both deficient taxes and fines?

PETITIONERS: The court certifications prove the sentence has not been served. (Te memorandum)

MARCOS: The BIR certification should be believed because “there is no greater authority when it comes to issues of income tax return and payment of taxes than the BIR.” (Rodriguez press conference)

REMARKS: Asked what could be the reason why the court would have no record of the payment to the BIR, seeing that it’s the one that ordered the payment, Rodriguez said: “I am not the spokesperson of the court. Feel free to ask them.” During a hearing of the Comelec First Division on January 7 on the petitions for disqualification filed by Akbayan and the group of martial law victim Bonifacio Ilagan, Marcos’ lawyer Hanna Barcena said the payment was not made to the court but to the BIR directly. Barcena, during the hearing, could not present a BIR receipt.

Does payment of tax fines matter?

ISSUE: Section 12 of the Omnibus Election Code says disqualification is removed “after the expiration of a period of five years from his service of sentence.” Has Marcos served his sentence, has the disqualification been removed?

PETITIONERS: Marcos has not served his sentence because the court certifications say there is no record on file of the compliance. Even if he has served his sentence, he is still perpetually disqualified.

MARCOS: The court certifications must not be admitted as evidence because petitioners belatedly submitted it, and it was improperly marked. (Marcos memorandum) But it would serve as proof, especially for supporters, that Marcos “owes nothing to the government.” (Rodriguez press conference)

Material misrepresentation

ISSUE: Since the exclusive ground of canceling a COC is material representation, petitioners must prove that Marcos indeed misrepresented details about him in his COC, and that the omissions were material or had a willful intent to deceive.

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 conviced of a crime involving moral turpitude, and thus knew he was disqualified. (Te memorandum)

MARCOS: Marcos had no intent to deceive because the eligibility issues related to his conviction are “difficult questions of law,” and if legal experts disagree on the topic, “Marcos as a layman cannot be faulted if his interpretation later turns out to be erroneous.” (Marcos memorandum)

Are accusations proper?

ISSUE: In cases, violations must be properly and clearly alleged for them to prosper. Did these petitions do it?

MARCOS: No, because the Supreme Court once explained that to cancel a COC, the material representation must be related to the requirements to be president under Section 2 of the Constitution, and the petitioners did not do so. They 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)

PETITIONERS: Allegations of violating the election code’s rules on COC “is not limited to the qualifications under Section 2, Article VII of the Constitution.” The Supreme Court had explained that the “election code must be read in relation to both the Constitutional and the statutory provisions on qualifications for public office.” (Te memorandum)

Petitioners have said this case shows Marcos’ habit of deception and dishonesty, which is alarming for a person who wants to be president. Marcos’ camp says petitioners are just launching a demolition job against a leading candidate.

The cases are very likely to reach the Supreme Court, a 2016 repeat of Grace Poe’s citizenship issue during the last presidential elections. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.