Comelec 2nd division junks petition to cancel Bongbong COC

The Commission on Elections (Comelec) Second Division has junked the petition to cancel the candidacy of presidential aspirant Ferdinand "Bongbong" Marcos Jr. in the 2022 elections due to lack of merit.

In a resolution promulgated January 17, the division said the petition “merits summary dismissal” as Section 17 of the Omnibus Election Code provides that cancellation of certificate of candidacy (COC) may be filed “exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false.”

“In this instant case however, aside from alleging the existence of false material representations in Respondent’s COC, Petitioners also invoked grounds for disqualification against him,” the resolution read.

Despite the summary dismissal “being warranted” in this case, the Second Division said it “shall nevertheless relax compliance with the technical rules of procedure and proceed to discuss the merits” to fully and finally settle the matter stipulated in the petition because of its “paramount importance.”

'Not false'

In explaining the decision, the Comelec division said Marcos' representations in his certificate of candidacy, which are being questioned by the petitioners, are "not false." The petitioners argued that Marcos' tax conviction in the 1990s disqualifies him from running for public office.

The Comelec division said before it can ascertain that Marcos’ representations in Items number 11 and 22 of his COC are false, there is a need to thoroughly examine the true import and actual effect of the decision of the Court of Appeals (CA).

The poll officials said the Comelec has no jurisdiction to “correct, amend or even review the decisions” of the CA but it is their duty to scrutinize it before it can determine whether there is a false material representation.

The Comelec division said the petitioners were “gravely mistaken” in maintaining that Marcos was perpetually disqualified from holding any public office, from voting or from participating in any election under Presidential Decree No. 1994 due to the presidential aspirant’s conviction of a provision of the National Internal Revenue Code (NIRC).

The Second Division said that P.D. 1994, which added the penalty of perpetual disqualification to hold public office, to vote, and to participate in any election for an offender who is a public officer or employee, only become effective on January 01, 1986.

The ponente said this “accessory penalty” of  P.D. 1994 is not applicable on Marcos' cases for the taxable years 1982, 1983, and 1984 and the applicable sanction at that time was under Section 73 or the 1977 NIRC which only provided either a fine or imprisonment or both.

With regard to the taxable year of 1985, the resolution indicated that P.D. 1994 cannot be applied to Marcos’ failure to file his income tax return which was due on March 18, 1986, as the presidential aspirant was no longer a public officer during that time.

“Hence, the CA decision is correct for not imposing on herein Respondent the penalty of perpetual disqualification from holding any public office, voting, and participating in any election. There was no error in judgment as the CA Decision was in accord with the law in force at the time of commission of violations,” the resolution read.

“Considering the foregoing disquisitions, it now becomes manifest that Respondent’s material representations — that he is eligible for the position of President and that he has not been meted the penalty of perpetual disqualification from public office — are actually not false,” it added.

The Comelec division also noted that the respondent did not deliberately attempt to mislead, misinform, or deceive the electorate.

Separate opinion

However, Comelec Commissioner Antonio Kho issued a separate opinion on the Second Division’s resolution. While he agrees that the petition should be denied for lack of merit, he said he did not agree with the ponente of the resolution that the penalty of perpetual disqualification to hold public office under P.D. No. 1994 cannot apply to Marcos because he was no longer a public officer when he failed to file his 1985 income tax return in March 1986.

“The fact that Respondent Marcos Jr. abandoned his post as the Provincial Governor of Ilocos Norte when he and his family fled the country during the February 1986 EDSA People Power Revolution cannot and should not operate to deny the possible application against him of the penalty of perpetual disqualification to hold public office,” Kho wrote.

He further stressed that Marcos was a public officer when he earned his income for the taxable year 1985 and it is a basis for his legal obligation to file his ITRs on or before March 18, 1986.

“Thus, Respondent Marcos Jr., even as a private person then, should not be shielded from facing the penal consequences of such failure to file his income tax returns,” Kho said.

Kho further said the principal question that should be settled then is whether Marcos was adjudged by the CA to suffer the penalty of perpetual disqualification in its 1997 decision.

He said this perpetual disqualification should be considered as a “principal penalty” not an accessory penalty.

Since the CA decision on Marcos’ tax case “did not expressly impose” the penalty of perpetual disqualification to hold public office, Kho said such penalty is not deemed written into or considered part of the final judgment.

"Consequently, the representations of Respondent Marcos Jr. in his certificate of candidacy that he is eligible to be elected to the office of the President of the Philippines and that he has not been found liable for an offense which carries with it the accessory penalty of perpetual disqualification from holding public office are NOT FALSE," Kho said.

"Thus, there is no legal justification to deny due course to or cancel the certificate of candidacy of Respondent Marcos Jr.," he added.

Petitioners eye MR

Lawyer Theodore Te, counsel for the petitioners, said they will seek reconsideration with the Commission en banc within the five-day period as provided by the rules.

TLDR: Comelec Second Division denies petition to cancel Marcos Jr.'s COC, ruling essentially that the representations required are material but that they are not false. Petitioners disagree and will seek reconsideration within the period provided under the Comelec Rules. pic.twitter.com/tPYnnn7Qls

— Ted Te (@TedTe) January 17, 2022

Te said the details of the motion of reconsideration (MR) will be provided once it is filed.

Should the en banc junks the petitioners’ MR, Comelec spokesperson James Jimenez said the petitioners could bring the case before the Supreme Court.

The petition was filed by Fr. Christian Buenafe, co-chairperson of Task Force Detainees; Fides Lim, board chair of Kapatid-Families and Friends of Political Prisoners; Ma. Edeliza Hernandez, executive director of the Medical Action Groupl Celia Lagman Sevilla, secretary general of the Families of Victims of Involuntary Disappearance; Roland Vibal Philippine Alliance of Human Rights Advocates, and Josephine Lascano, executive director of the Balay Rehabilitation Center.

'Strange, contradictory'

Kapatid's Lim, for her part, said she finds the Comelec division ruling "very strange and contradictory."

"Very strange and contradictory that the Comelec Second Division opted to deny our petition yet agreed that the 'representations' made in Item 11 of Box 22 of the certificate of candidacy (COC) of Marcos Jr. are 'material'," she said in a statement.

"What gives? Why disagree that such were 'false' when the meaning of 'material,' whether noun or adjective, is plain and true for all to see unless the Second Division has another dictionary. Meaning of 'material' as noun: Matter, substance. Meaning of 'material' as adjective: Physical, significant," she added.

Lim insisted that Marcos conviction for failing to file income tax returns for the years 1982 to 1984 when he was vice governor and governor of Ilocos Norte makes him ineligible to hold any public office, "least of all the highest office of the land."

The Buenafe petition was just one of the many filed contesting the candidacy of Marcos, son of the late dictator Ferdinand Marcos Sr.

Three petitions have already been junked while three are still pending with the Comelec First Division and one in the Second Division, which held a preliminary conference last January 14.

BBM camp thanks Comelec

Reacting to the junking of the Buenafe petition, Marcos' camp thanked the Comelec "for upholding the law and the right of every bona fide candidate like Bongbong Marcos to run for public office free from any form of harassment and discrimination."

"The petitioners' mere creativity for writing and wanting what is not written in the law as basis to cancel the certificate of candidacy of Presidential Aspirant Bongbong Marcos is way too frivolous and unmeritorious to override the basic precepts of the Constitution," said Marcos' spokesman, lawyer Vic Rodriguez, in a statement.

Rodriguez said they are extending their "hand of unity even to the fiercest of adversaries and invite them to work together in ensuring a clean, fair and credible elections..." 

In a separate interview, Rodriguez said they would respect any legal remedies that the petitioners will pursue.

“As to what our rivals will be doing next, I don’t engage, as I have stated many many times, into speculation. If they want to exhaust all legal remedies available to them it is within their right and we have always been respectful of the rights,” he said.

He expressed confidence that the Comelec division’s ruling would be upheld.

“In the statement I have issued this morning, I have stated there clearly that this case pending before the Second Division has been fully ventilated and argued by both sides and it is time to listen to the unanimous voice of the Second Division of the Commission, dismissing the petition dahil sinabi ng COMELEC mismo walang material misrepresentation na ginawa si (because the Comelec itself said that there were no material representations were made by) Ferdinand Bongbong Marcos Jr.,” he said. — KBK/RSJ, GMA News