MANILA, Philippines – A group of Martial Law survivors who lost their disqualification bid against Ferdinand “Bongbong” Marcos Jr. at the Commission on Elections (Comelec) took their case to the Supreme Court on Wednesday, May 18, and argued that second-placer Vice President Leni Robredo should be president if they win the case.

“Considering that the votes cast in favor of a disqualified candidate are invalid, the winner therefore, is the candidate who received the greatest number of valid votes,” said the 50-page petition filed by victims of torture like Bonifacio Ilagan and Saturnino Ocampo, filed with their lawyer Howard Calleja.

The group of former Supreme Court spokesperson Ted Te is gunning for the same outcome when they elevated the petition to cancel Marcos’ certificate of candidacy (COC) to the High Court.

Canceling a COC and disqualification are different processes – the main difference is that the former voids the entire candidacy while a disqualified candidate can be substituted. But that is, if the case was resolved prior to the elections. Now that Marcos has won 31 million votes – a landslide victory – based on the partial unofficial count, what do the rules say?

In the 2010 case Panlaqui vs Velasco, the Supreme Court declared as mayor the elected vice mayor, after the candidate who won in the mayoralty race was disqualified. This is pursuant to the line of succession, which might tickle the imagination of some that presumptive vice president Sara Duterte would be the ultimate beneficiary of a Marcos disqualification.

However, the petition is citing a newer case, the 2013 decision Maquiling vs Comelec where the Supreme Court said that the disqualification of the candidate “reaches back to the filing of the certificate of candidacy” and that the disqualified candidate is “declared to be not a candidate at all.”

“Being a non-candidate, the votes cast in his favor should not have been counted. This leaves [Maquiling] as the qualified candidate who obtained the highest number of votes. Therefore, the rule on succession under the Local Government Code will not apply,” said the 2013 decision.

Former elections commissioner Luie Guia agreed with the petition.

“My take is that if the ground for disqualification existed at the time of the filing of the COC, then the COC may also be canceled or nullified, which means that the votes of disqualified candidate will likewise be declared stray, thus, the one with the highest number of vote (stray votes not counted) is to be considered elected,” Guia told Rappler.

The Supreme Court en banc will not be meeting until June 14, which means the cases could not be tackled until then. Congress is expected to proclaim Marcos and Duterte as winners in their respective races by end of May.

Election lawyer Emil Marañon earlier said time would not be an issue, as the Supreme Court could still rule beyond proclamation.

Arguments

Like the group of Ted Te, the Martial Law survivors’ challenge is to convince the Supreme Court, filled with appointees of President Rodrigo Duterte, to have a different ruling than the Comelec. Supreme Court Justice Antonio Kho is expected to inhibit, having been involved in the cases as a Comelec commissioner before he was appointed to the High Court.

One of the new arguments of the recent petition is framing failure to file income tax returns as a continuing crime.

This is relevant because the Comelec said that the 1977 tax code, which covered Marcos’ non-filing of returns from 1982 to 1984, did not impose mandatory prison time nor automatic perpetual disqualification as penalty. Those were included in the amended tax code that became effective only in 1986.

The catch is, Marcos’ conviction also covered his tax return for 1985, which was filed only in March 1986. Which tax code applies – 1977 or the 1986 version? The petitioners said the 1986 version, trying to convince justices that Marcos was already perpetually disqualified from holding public office.

“Marcos Jr. continued to violate Sec. 45 of the 1977 [tax code]; he did not even try to belatedly file his income tax return. He just did not. Therefore, when the amendments introduced by [1986 tax code] took effect, Respondent convicted candidate Marcos Jr. remained to be committing an offense in continued violation of the law, and such continued commission of an offense thus subjected him to the additional accessory penalty of perpetual disqualification,” said the petition.

“To clarify, this is not a case of making a penal law retroactive in application. Merely applying the law in effect in 1986, for violations he was continually committing in 1986, therefore does not fall within the ambit of an ex post facto law,” the petition justified.

It is unconstitutional to apply a law ex post facto or after the fact, meaning if a person committed an act that was not a crime at that time, they could not be punished for a criminal offense in the future when a law is passed criminalizing the said act.

At the Comelec level, the survivors’ case was junked before the commissioners said failure to file an income tax return is not a crime of moral turpitude. The election code disqualifies someone who has been convicted with finality of a crime of moral turpitude. The reasoning of the Comelec was that failure to file an ITR is not inherently evil, like murder or rape.

The petitioners disagreed.

“Marcos Jr. failed to file his ITRs on four (4) consecutive years that he was Vice Governor and Governor of Ilocos Norte from 1982 to 1985. Four (4) consecutive years cannot be regarded as a simple omission. It shows an utter disregard of the laws which, as chief executive of the province of Ilocos Norte, Respondent convicted candidate Marcos Jr. took an oath to uphold,” said the petition. – Rappler.com