[ANALYSIS] They gave Bongbong Marcos a free pass

After a group of Martial Law victims filed a petition against the candidacy of Marcos Jr., legal views from both sides have emerged. The arguments of those who filed rely on a reading of the Tax Code and the clear wording of the trial court and Court of Appeals decisions. Those who defend him look at the same words and parse them, some pointing at turns of phrase or offer hairline distinctions – such as “sentence” vs “conviction.” All this is expected. It’s what we lawyers do. (And why society hates us so.) 

Before we get consumed in “legalese,” there is another aspect of this question that needs focus. We must remember, it is a presidential bet  we are scrutinizing. And for this, we begin with a simple premise. There is no legal right to be president. One applies, and if one is under the Constitution qualified and not barred by law from running, then one can run. No one is “born to be president.” And to hold elective office remains a privilege, not a God-given right.   

Because it is a president we are talking about, the question of fitness of a candidate transcends the ordinary. A president becomes the commander-in-chief of the entire Armed Forces of the Philippines. He appoints judges and justices. He heads the entire bureaucracy. And as the pandemic shows, a president commands the use – or misuse – of billions of public funds. If we demand honor and integrity from the rank-and-file then, we should be more exacting when it comes to those who want to become the head of government.   

Because “taxes are the lifeblood of the nation,” many officials’ careers have been ended by court decisions finding them guilty of tax evasion or fraud. There are two court decisions involved in Marcos Jr.’s case. Both found him guilty. An ordinary employee, soldier, or judge wouldn’t be promoted after those. 

Another ‘exception’?

Do we now tell the public that in the case of a presidential candidate it will be different? Do we carve out another “exception” for those applying to be the Highest Officer in the Land? 

While we have had presidents who turned out to be thieves, we have yet to purposefully elect a convicted tax “evader.” One wonders what kind of tax policies will be implemented under this brand of leadership. Certainly, those who run the RATE or Run After Tax Evaders program will, at the very least, have to take pause. 

The Commission on Elections announced that it plans to purge “almost ¾” of those who filed for candidacy on the ground that they are “nuisances.” Most of them are Filipino, of legal age, and unlike Marcos Jr., have not been convicted of tax fraud or evasion. Yet, we are quick to “disqualify” them. Because they are not rich enough, because they are not popular enough. We readily deny poor Filipinos the chance to run but contort ourselves when it comes to legitimate questions about the fitness of presidential candidates. 

Those who want to run to become the most powerful person in the country for six years must be held to an extraordinary standard. He who wants power must first submit to the rules. Yes, all of them. Here’s why. In 2015, we allowed a candidate to exploit a loophole in substitutions. Indulging that loophole saddled us with an administration with the worst pandemic response in the region. It left thousands dead, millions jobless, and countless businesses shuttered. And as we’ve seen in the circus that just concluded, that “substitution” loophole has metastasized into a mockery of the electoral process. Presidential candidates should adjust to our laws, our laws should not be bent to suit their ambitions. 

Stringent application

And because it is Marcos Jr. we are talking about, it is even more important that his application be tested stringently. His entire candidacy is linked to the 20 years when his family held absolute power. If he wants to re-enact those “golden years,” then it matters that he does so by being tested by all our processes. Another thing to consider is that the court decisions finding him guilty are now in the public sphere. They are being dissected on Facebook and in Viber groups and other chats. Students, drivers, and kasambahay have seen them. And they understand what those decisions mean. To them, it matters that someone Marcos Jr. was treated no different from an ordinary citizen. We risk aggravating the public’s severe disaffection with the rule of law if we cavalierly dismiss this matter. It will become another story of a rich person “getting away with it.”    

Consider the reaction to the entry of Martial Law figure Estelito Mendoza as Marcos Jr.’s lawyer. From mainstream media to social media, the accounts focused on how Mendoza was one of the dictator’s men who presided over the “transformation” of the legal profession into what it is today. One account highlighted how Mendoza’s method for winning was once described by Supreme Court Associate Justice Marvic Leonen in a forceful dissent in this manner: “The reopening of a final case was done through a back door …It could not be another means to resurrect a case. To do so is highly irregular, suspect, and violative of due process of law. To mask this as being in the interest of justice is to mask its intention to rob labor of a case decided three (3) times in its favor.” Justice Leonen might as well have been describing the “interesting” manner by which Marcos Jr. secured an extension and learned about getting it hours before the Comelec’s own spokesperson.  

Marcos Jr. has already filed his answer to the petitions against his candidacy. Both sides are now fully engaged. While lawyers now go to a battle of words, it is folly to think that this incident will only be a judgment of Marcos Jr’s fitness. Our institutions and the people surrounding them are also on the balance.  

It is a legal curiosity why the Court of Appeals deleted imprisonment after agreeing with a regional trial court that Marcos Jr. was guilty beyond reasonable doubt. In an interview Justice Carpio said, “Because he is Bongbong, they gave him a free pass.”  From his youth, to Oxford, and all the way to public office, how quaint it must be to live a life full of “free passes.” The nation will now watch whether this Marcos will be given another. – Rappler.com

John Molo is a commercial law litigator who enjoys reading and learning about the Constitution and its intersection with politics. He teaches Constitutional Law at UP Law-BGC, where he also chairs the Political Law Cluster of the Faculty. He led the team that sued the Aquino administration and invalidated the Priority Development Assistance Fund.