Disqualification and COC cancellation
I hope the heated headline-grabbing word war on the disqualification (DQ) cases filed against Bongbong Marcos (BBM) in the Commission on Elections (Comelec) will result in trustworthy and credible polls on May 9. Otherwise, it would just be another unwelcome distraction.
SIMPLY STATED, THE MAIN QUESTION TO BE DECIDED in these DQ cases is this: Was BBM convicted by the Court of Appeals (CA) of a crime involving moral turpitude as provided under Section 12 of the Omnibus Election Code (OEC)? This section reads in part as follows: “Any person who … has been sentenced by final judgment … for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty.”
In Republic v. Marcos II (Aug. 4, 2009), the Supreme Court (Third Division) held that the CA’s conviction of BBM for his failure to file his income tax returns (ITR) for four years (1982-1985) did not disqualify him to be “the executor of the will of his father” because such failure “is not a crime involving moral turpitude.” Under the Rules of Court (Rule 78, Section 1), a person convicted “of an offense involving moral turpitude” cannot serve as an executor or administrator of a decedent’s estate.
Article continues after this advertisementThe Court said that three different violations are relevant to ITRs namely, “(1) false return, (2) fraudulent return with intent to evade tax, (3) failure to file a return.” It stressed that the first two “entail willfulness and fraudulent intent on the part of the individual and thus fall” under the category of “everything which is done contrary to justice, honesty, or good morals”—the accepted judicial definition of moral turpitude.
However, the Court explained that the third—failure to file ITRs—“is not a crime involving moral turpitude as the mere omission is already a violation regardless of the fraudulent intent or willfulness of the individual.”
Some may disagree with, even rage against, this cryptic explanation but as long as it is not reversed, or modified, or clarified to be merely an obiter dictum (or a side comment) by the Supreme Court en banc, lower courts and quasi-judicial agencies like the Comelec are duty-bound to follow it.
Article continues after this advertisementDISQUALIFICATION AND CANCELLATION of a Certificate of Candidacy (COC) are two different ways of taking out a candidate from an electoral race. The grounds for DQ are provided in Section 12 of the OEC (which I earlier quoted in part as it may apply to BBM) while the “exclusive” ground for COC cancellation (also called “denial of due course”) is found in Section 78 in relation to Section 74 of the OEC, and that exclusive ground is “false material representation” in the COC.
A COC is considered a sacred public announcement of candidacy. The law requires it to be truthful and devoid of any “false material representation.” Otherwise, it can be canceled or denied due course.
If a candidate’s COC is canceled, he or she cannot be substituted because cancellation legally means that the COC was void from the very beginning and deemed never to have existed. Thus, the votes cast for the erstwhile candidate (though his or her name had already been printed on the ballot) would be considered “stray” and would not be counted. The candidate getting the highest number of votes, excluding the stray votes, would be declared winner.
In contrast, a disqualified candidate can be substituted by another person bearing the same surname and belonging to the same political party.
GIVEN THIS IMPORTANT DIFFERENCE, will the partisans opposed to the Marcoses still passionately pursue the DQ cases? If so, their pursuit may succeed: BBM would be disqualified and substituted by another Marcos, like his sister Imee, who may not suffer from his alleged foibles and infirmities, such as “certified convict,” “fake Oxford and Wharton degrees,” “carefree and lazy,” “weak leader,” etc.
On the other hand, if BBM’s COC is canceled by the Comelec en banc (where the pending motion for reconsideration is lodged) and eventually by the Supreme Court (to which a decision of the Comelec en banc may be elevated), he cannot be substituted and the partisans’ dream to take the Marcoses out of the presidential race would be fulfilled.
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