MANILA, Philippines – The Commission on Elections (Comelec) First Division ruling junked the disqualification cases against presidential aspirant Ferdinand “Bongbong” Marcos Jr partly because it declared that failure to file an Income Tax Return (ITR) is not a crime of moral turpitude.

But the language of the ruling, written by Commissioner Aimee Ferolino, caused confusion.

On Page 32, it said: “Is the failure to file tax returns inherently immoral? We submit that it is not. The failure to file tax returns is not inherently wrong in the absence of a law punishing it.”

Failure to file ITR, which Marcos has been convicted of with finality on four counts, is a crime. That much is clear.

As Ferolino herself wrote: “The said omission became punishable only through the enactment of the Tax Code.”

The issue is not whether it’s punishable or not – because it is. The issue is whether the act is inherently immoral, because that’s the standard that the commissioners used to decide whether Marcos’ crimes are crimes of moral turpitude.

The election code disqualifies a candidate who has been convicted with finality of a crime of moral turpitude. However, there are no explicit rules when a crime is considered that of moral turpitude. As Commissioner Marlon Casquejo pointed out: “It is ultimately a question of fact and frequently depends on all the circumstances.” Simply put, it is on a case to case basis.

A guidepost that the First Division used is the principle of malum prohibitum.

“I think Commissioner Ferolino was alluding to the failure to file an ITR being wrong only because the NIRC punishes it, which is what we call an act that is malum prohibitum,” said Jocel Dilag, a tax lawyer who teaches taxation at the University of the Philippines College of Law.

As discussed by both Ferolino and the separate opinion of Casquejo, there are two kinds of crime: malum in se or a crime that is inherently evil like murder or rape, or malum prohibitum or a crime that is not in itself inherently evil but was made a crime because a law was passed punishing it.

On Facebook, now retired Comelec commissioner Rowena Guanzon said this is a wrong guidepost. “Ferolino equated crimes involving moral turpitude with crimes mala in se. This is simply no longer true in light of more recent jurisprudence on the matter,” said Guanzon, citing a 1993 Supreme Court case that says “generally but not always, crimes mala in se involve moral turpitude, while crimes mala prohibita do not.”

Even Casquejo acknowledged that, saying: “It cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum.”

(Read the full text of the decision and Casquejo’s separate opinion here.)

Mere omission? Guanzon says no

So what kind of crime did Marcos commit and was convicted for? Casquejo and Ferolino agreed: mere omission.

The tax code distingishues fraud from omission. Fraud is intentional and willful deceipt, while omission “can be said to be negligence without intent to evade tax,” according to Dilag.

“However, if the omission was purposefully made to evade taxes, then that could still be considered a fraudulent act,” Dilag told Rappler.

Marcos’ crime of omission, Casquejo said, “lacks quantum of vileness. We cannot justify that such omission necessarily results to injustice; that is an overkill.”

Guanzon disagreed, saying that Marcos’ crime is not mere omission because it happened for four straight years.

“His repeated and consistent failure to file his income tax returns for four straight years, while occupying a very important chief executive position in government tasked with the duty to enforce the laws of the land, clearly shows that his acts can no longer be casually considered as mere omissions,” said Guanzon in what was supposed to be a separate dissenting opinion, but which didn’t count because the Division promulgated its majority decision days after the commissioner retired.

“The fact that these omissions were repeated, persistent and consistent is reflective already of a conscious design and intent to avoid a positive duty under the law and intent to evade the taxes due,” said Guanzon.

Dilag added: “Given the vagueness of the term, one should not look at just the moment the act was committed but rather, look into the circumstances surrounding it, such as regularity, the actor’s social standing, and the impact of such act to society.”

Guanzon said Marcos “seriously incapacitated the BIR from determining whether the correct taxes were paid.” The taxes involved amounted to P8,504, which in 1994 when he was assessed, could buy a 47-square meter lot in one of the cheapest zones in Laoag City, based on the Bureau of Internal Revenue’s zonal value database.

“While the absolute sum of the deficiency taxes may not seem very large today, it was significant more than thirty years ago,” Guanzon said, adding that if not caught, “he would have successfully evaded his obligations to pay his taxes in full.” 

‘Minimizes the offense’

Comelec spokesperson James Jimenez said the criticisms to the decision are misplaced because it lacked the context of distinguishing a malum in se from a malum prohibitum.

“What they’re doing is they’re taking that particular line out of context. The Comelec does not say that failure to file an ITR is not a punishable offense, it is. The Comelec is not saying that failure to file an ITR is okay, because it is not,” said Jimenez.

Former Supreme Court spokesperson Ted Te, counsel to one of the cases against Marcos and a criminal law expert, told Jimenez on Twitter: “the language [of the decision] is unfortunate because it minimizes the offense for which the respondent was convicted and gives rise to confusion.”

There is one more disqualification case against Marcos pending before the Second Division filed by the group of constitutional framer Christian Monsod. All of Marcos’ division victories will be elevated to the Comelec en banc. All of them are expected to reach the Supreme Court for a final showdown.

– Rappler.com