Comelec: No reason to cancel BBM’s COC

In a 32-page Resolution, the Second Division of the Commission on Elections (Comelec)—composed of Presiding Commissioner Socorro B. Inting, Antonio T. Kho Jr. (with Separate Opinion), and Rey E. Bulay—unanimously dismissed the petition “seeking to deny due course to and/or cancel the Certificate of Candidacy (COC)…” of Bongbong Marcos (BBM).

FALSE MATERIAL REPRESENTATION is the exclusive ground to cancel a COC. “There is no other possible ground,” the Division firmly ruled, and I agree. Nonetheless, the Division found that the petition included two more grounds: BBM was convicted (1) “of a crime involving moral turpitude …” and (2) of tax evasion that carries a “mandatory penalty of imprisonment of more than 18 months…” both of which are grounds for his disqualification, not of the cancellation of his COC (Pp. 6-9 of the Resolution).

The addition of these two grounds violated Section 78 of the Omnibus Election Code and the Comelec Rules of Procedure, a violation which could have resulted in the outright dismissal of the petition. However, the Division set aside this procedural lapse and “proceed(ed) to discuss the merits… (of) this case.” (P. 9)

The petition alleged that BBM committed two false material representations for saying in his COC (a) that he was “eligible” to be president and (b) that he had never been “found liable for an offense which carries with it the accessory penalty of perpetual disqualification to hold public office.” To prove these two allegations, the petitioners should show that each or both of them were (1) material, (2) false, and (3) done with “deliberate attempts to mislead, misinform or hide a fact which would otherwise render a candidate ineligible.”

THE RESOLUTION HELD, AND I AGREE AGAIN, THAT THE REPRESENTATIONS WERE “MATERIAL” because BBM “avow(ed) that he (had) all the qualifications and none of the ineligibilities to run for the public office” he was seeking. (Pp. 10-11)

HOWEVER, THEY WERE “NOT FALSE” because “nowhere in the … dispositive portion” of the Court of Appeals (CA) decision convicting him of “failure to file his income tax returns” (ITR) for 1982, 1983, 1984 and 1985 “can it be expressly found that (BBM) (was) meted the penalty of perpetual disqualification…” Notably, the law prescribing such penalty became effective only on Jan. 1, 1986, and therefore did not penalize retroactively the failure to file ITRs for 1982-1984 (P. 14).

On the other hand, the last day for filing his ITR for 1985 was on March 18, 1986, when BBM “was no longer a public officer, thus effectively removing him from the purview” of the law. He “ceased to be a public officer when he and his family were forced to leave the country in February 1986,” (Pp. 17-18) to which I disagree.

Neither did BBM intend to “mislead, misinform, or hide a fact which would otherwise render him ineligible” (the third element) because “there is nothing in the CA Decision… that would have categorically appraised (BBM) that he (was) suffering from any ineligibility for the position of President… (and) had no reason at all to think otherwise.” (Pp. 22-23) (This is debatable.)

CIRCLING BACK TO THE PETITION’S ADDITION OF TWO MORE GROUNDS, to which I disagree, the Resolution (P. 24)—citing Republic v. Marcos (Aug. 4, 2009)—opined that the “failure to file an income tax return (ITR) is not a crime involving moral turpitude.” Neither was it “tax evasion” because the proper income taxes had been withheld at source when BBM’s salaries as a public official were paid to him. (P. 29)

Moreover, by alleging that such failure “carries with it the mandatory penalty of imprisonment of more than eighteen (18) months…,” the petitioners “appear to have deliberately misquoted the applicable law.” (Pp. 25-26) The Resolution explained that the said law gave the courts “the discretion to impose a fine, OR imprisonment, OR both.” (Caps in original) Hence, the penalty of imprisonment was not mandatory; verily, it was left to the sound discretion of the courts whether to impose it or not. It became mandatory only when the law was amended on Jan. 1, 1988 (P. 28).

At bottom, I summarized the Resolution as clearly as I can to help lay readers understand the delicate issues resolved. Due to lack of space, and in deference to—and to avoid preempting—the motion for reconsideration that lawyer Theodore O. Te said he would file tomorrow, Jan. 24, I refrained from detailing my comments.

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