Cancel COC of, not disqualify, Bongbong

Now that the lawyers of Bongbong Marcos have filed their “Answer” to the main petition to cancel (or deny due course to) his certificate of candidacy (COC) in the 2022 elections (other petitions were submitted later but they were merely reiterative or filed out of time), I will now take up the subject as promised in my Nov. 14 piece titled “The Bongbong-Sara juggernaut.”

First, let me summarize the grounds raised by the 52-page petition filed in the Commission on Elections (Comelec) by lawyer Theodore O. Te. It argued that Bongbong’s COC should be canceled because he falsely declared under oath in paragraph 11 of his COC dated Oct. 6, 2021, that he was “eligible for the office I seek to be elected to.”

This material declaration or representation is “false” because he was convicted by a final judgment, dated Oct. 31, 1997, of the Court of Appeals (CA) for violating Section 45 of the Tax Code, “(a) Ordering (him) to pay the BIR the deficiency taxes due with interest at the legal rate until fully paid; and (b) … to pay a fine of P2,000 for each charge in Criminal Cases Nos… for failure to file income tax returns for the years 1982, 1983 and 1984; and the fine of P30,000 in Criminal Case No… for failure to file income tax return for 1985, with surcharges.” This judgment made him ineligible to hold any public office.

Under Section 78 in relation to Section 74 of the Omnibus Election Code (OEC), any “material representation” in the COC that is “false” is penalized with the cancellation of, or denial of due course to, such COC.

Another false material representation is found in Item 22 of his said COC in which Bongbong denied under oath that he had been “found liable for any offense which carries the accessory penalty of perpetual disqualification to hold public office…”

It contended that “Presidential Decree No. 1994, dated Nov. 5, 1985, which became effective Jan. 1, 1986, amended” the 1977 National Internal Revenue Code (NIRC) “to include, among others, the accessory penalty of perpetual disqualification from holding any public office… in cases of conviction of a crime penalized under the NIRC.” This amendment is now a part of Section 253 of the 1997 NIRC.

The petition asserted that the Oct. 31, 1997 CA decision merely affirmed the judgments of the Regional Trial Court (RTC) rendered on July 27, 1995. That the CA imposed only a fine and inexplicably omitted the penalty of imprisonment imposed by the RTC did not matter because the accessory penalty of disqualification attaches to a conviction of a violation of the NIRC’s provisions regardless of the main penalty imposed.

In contrast, Bongbong’s “Answer”—consisting of only seven main pages filed by his lawyers led by Estelito P. Mendoza—prayed “that the Petition be dismissed…” and that it “be heard by face to face argument…”

After quoting in full Sections 78 and 74 of the OEC, it simply posited that “the Petition is bereft of any specific allegation of a material representation required under Section 74 of the (OEC).” It also asked the Comelec to “take judicial notice that respondent had previously been elected to several elective positions in government…” and that he “has all the qualifications of a President.” Moreover, it insisted that while the CA ordered Bongbong to pay fines, the CA did not find him guilty “of committing a crime involving moral turpitude.”

Due to lack of space, I will expound on the parties’ positions in a future column. For now, let me just say that if the COC of Bongbong is canceled or denied due course, HE CANNOT BE SUBSTITUTED because such cancellation or denial legally means that the COC never existed. Thus, Bongbong’s votes will not be counted. The candidate getting the highest number of votes, excluding his votes, would be declared winner.

Also, contrary to some media reports and “analysts,” lawyer Te’s petition seeks the cancellation of Bongbong’s COC, not his “disqualification.” Under Section 68 of the OEC and applicable jurisprudence, disqualification can be granted only for the commission of election offenses defined by the OEC, not by any other penal laws. Disqualification, unlike cancellation of COCs, allows substitution by another candidate from the same political party bearing the same surname.

If his COC is cancelled after Bongbong had been declared as the president-elect by Congress (acting as the canvassing body), or after he had taken his oath as President, what will happen? Ah, the answer also merits a future column.

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