Reversing the Comelec

The Commission on Elections (Comelec) decision dismissing the petitions to disqualify Ferdinand Marcos Jr. from running in the 2022 elections should be reversed. The decision was promulgated by two members of the “former First Division” after Commissioner Rowena Guanzon retired. Before she retired, Guanzon released her opinion on the case granting the petitions to disqualify Marcos Jr.

Guanzon suggested that the Comelec was intentionally delaying the release of a decision to remove her opinion from the picture. A Guanzon-less Comelec ruling seems unnecessary. Even if the ruling was delivered before her retirement, the petitions would still be dismissed by a 2-1 ruling and Marcos Jr. would still not be disqualified to run for office.

After having read both the majority and Guanzon’s opinion, it becomes clear why a ruling dismissing the petitions benefits from Guanzon’s retirement. Guanzon’s opinion shows the weaknesses in the majority’s opinion.

The commissioners’ views diverge on the issue of whether the failure to file income tax returns constitutes moral turpitude. The majority anchored its ruling on the case of Republic v. Marcos II (2009), and that part that allegedly ruled that the failure to file an income tax return is not a crime involving moral turpitude. That case in part read:

“Therefore, since respondent Ferdinand Marcos II has appealed his conviction relating to four violations of Section 45 of the NIRC, the same should not serve as a basis to disqualify him to be appointed as an executor of the will of his father. More importantly, even assuming arguendo that his conviction is later on affirmed, the same is still insufficient to disqualify him as the ‘failure to file an income tax return’ is not a crime involving moral turpitude.”

Guanzon pointed out that this part of the decision was obiter dictum—defined elsewhere by the Supreme Court as a mere expression of an opinion with no binding force for purposes of res judicata and does not embody the determination of the court. Anything the judge says that “is not necessary to the decision of the case before it” is obiter dictum and is not precedent.

The only issue about Marcos Jr., she explains, was the application of Supreme Court Circular No. 2-90 and the appropriateness of the mode of questioning the issuance of letters testamentary by the trial courts.

The disposition of that case shows that the main issue of Marcos Jr. had nothing to do with the failure to file income tax returns. The Supreme Court said, “The Regional Trial Court of Pasig City, Branch 156, acting as a probate court in Special Proceeding No. 10279, is hereby ORDERED to issue letters testamentary, in solidum, to Imelda Romualdez-Marcos and Ferdinand Marcos II.”

The Comelec ruling says that even if the Marcos Jr. pronouncement was obiter dictum it was adopting it “in the hopes of finally putting the issue on moral turpitude to rest.” But the Marcos Jr. case had absolutely no discussion about the effect of one’s failure to file income tax returns; nothing that would persuade the Comelec to adopt obiter in its ruling.

The Comelec ended by saying that it “must see to it that its judgment is free from bias and partiality.” However, its ruling seems to have taken every step to favor Marcos Jr., by misusing case law and doctrines which, in the end, is a very partial approach to settling this issue.

In the end, the majority opinion allows a person who continuously failed to file income tax returns to run for the highest office of government. It undermines Supreme Court decisions that stress the importance of paying taxes: “The principle is well established that taxes are the lifeblood of government and every citizen is duty bound to pay taxes and to pay taxes in the right amount.”

The Comelec en banc or the Supreme Court, when it confronts these issues, will see the weaknesses of the Comelec ruling and should find solid reasons to disqualify Marcos Jr. from running in the May elections.

——————

Dante Gatmaytan is a professor of the University of the Philippines College of Law.

gsg