The Marcos affair disrupts Comelec’s activities

POSTSCRIPT – Federico D. Pascual Jr. – The Philippine Star

November 9, 2021 | 00h00

The raging debate over the legal effects on Ferdinand Marcos Jr.’s presidential race of his violations of the 1977 General Tax Code risks spreading from the Election Commission to the Supreme Court and disrupting preparations for the national elections of 2022.

Comelec, where civic leaders have filed a petition to refuse or cancel Marcos’ certificate of candidacy, needs enough time to resolve the dispute before November 15 (it’s Monday!), Deadline for substitution of candidates. who could be disqualified before the polls. are printed.

And then, the loser of the COC’s quashing motion can be expected to appeal to the Supreme Court, an action that will prolong the debate. Will Comelec be obliged to put Marcos’ name on the ballot before the matter is even finally resolved?

Comelec must first answer the question: is Marcos a convicted criminal? Some circles say yes, recalling that he was convicted in 1995 for four counts of criminal offenses under the Tax Code while he was governor of Ilocos Norte.

Certainly, the next question is: if Marcos was indeed convicted, were his convictions sufficient in the circumstances to prevent him from running for president in 2022?

Article 286 of the Tax Code, some lawyers point out, provides that any public officer found guilty of any violation of the Code “shall be dismissed from his public office and excluded for life from any public office” and prohibited from participating in any election. .

Last Thursday, we reported that some lawyers we had consulted on this matter had expressed the opinion that the petition opposing Marcos’ candidacy “would not succeed”, which means that in their opinion, Comelec would allow the son of the late dictator to introduce himself.

Yesterday we read a contrary opinion in a Viber article shared by former Commissioner Jose Mario Buñag of the Bureau of Internal Revenue. The article, not written by Buñag himself but simply posted by him, says:

Regarding the petition against Marcos, I am posting here a summary of the facts and legal basis of the petition.

1. The complaint filed against Marcos is NOT a case of disqualification. It is a petition to cancel Marcos’ certificate of candidacy or refuse it in due course – a way of saying that Comelec should not allow it – because Marcos allegedly lied (“material misrepresentation”).

2. Legal basis: Article 78 of the Electoral Code allows Comelec to cancel the COC if the candidate writes something wrong.

3. What was wrong with the Marcos COC? In the COC, there is a section where you must declare whether you have been convicted of a felony that carries the ancillary sentence of life prohibition from holding public office. Marcos wrote that he had never been convicted of such a crime. This declaration was made under oath.

4. Was Marcos’ statement that he was never convicted of such a crime true or false? It’s wrong. Marcos was finally convicted of four counts of failing to file his RTI under the 1977 Tax Code. That means four convictions. The Court of Appeal simply removed the prison sentence – a sentence that was actually to be imposed along with the fine. But even if the jail sentence was lifted, he was still convicted of the crime and ordered to pay fines.

5. Did Marcos know he had been convicted of the crimes? Of course he did. He appealed his conviction to the Supreme Court. On appeal, the whole case will be reconsidered, and it could be decided against him. The Supreme Court could overturn the decision of the Court of Appeal and sentence him to imprisonment. The appeal can be a risk when the facts are not in its favor. Having said that, I don’t know why Marcos withdrew his appeal to the SC. He should answer that question.

6. So was Marcos a convicted criminal? Yes. He has been sentenced – not just once, but four times. He appealed his convictions to the Supreme Court, but then decided to withdraw them. By withdrawing his appeal, his convictions became final judgments. Note that a conviction does not always come with a prison sentence. To be convicted of a crime is the conviction. In Marcos’ case, he was convicted and ordered to pay fines for his crimes.

7. Does the crime of which he has been convicted carry the accessory penalty of disqualification? Yes. Marcos was convicted under the Tax Code of 1977. Under article 286 of this law, any official or public employee found guilty of a violation of the Tax Code “shall be removed from his public office and permanently disqualified from any public service ”and may not participate in any election. When the General Tax Code was amended in 1997, this same provision was retained. This accessory penalty has never been abolished. The mere fact of the conviction carries the penalty of life ban. It is part of the law.

8. What about the argument that the disqualification of a candidate only applies to those sentenced to imprisonment for more than 18 months or for offenses involving moral turpitude? This provision of the Electoral Omnibus Code refers only to crimes that do not include the accessory penalty of perpetual disqualification from public office. It does not apply to crimes for which the lifelong ban is already part of the sentence (this is why it is called the ancillary sentence). Under the Tax Code, perpetual disqualification is a penalty incidental to ANY offense.

The question of whether Comelec considers violation of the tax code to be grounds for perpetual disqualification is something that concerns us all. The question of knowing whether Marcos is required to file an RTI should have been discussed before the Court of Appeal, but it would be interesting because well to see if this will be reinterpreted by Comelec.

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NB: All Postscripts are also archived on The author is on Twitter as @FDPascual. Email: [email protected]

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