The Manila Times
NO HOLDS BARRED
Rep. Edcel C. Lagman’s
Weekly Thursday Column
(First of two installments)
THE defense presented by Ferdinand Marcos Jr. before the Commission on Elections (Comelec) have been enfeebled by his admission in his answer and memorandum of his final conviction of failure to file his income tax returns (ITRs), particularly for 1985 where the mandatory ITR was due on April 15, 1986 after the effectivity on January 1, 1986 of the amendatory PD 1994. The National Internal Revenue Code (NIRC) of 1977 was amended by PD 1994 by imposing the accessory penalty of perpetual disqualification from holding public office, to vote and to participate in any election under Sec. 286(c) of the NIRC on those convicted of tax offenses.
The following are the arguments in his defense proffered by Marcos Jr. in his memorandum:
a) The Comelec has no jurisdiction to rule upon his qualifications for president.
He argued that the Comelec cannot resolve the Fr. Buenafe petition without determining his qualifications for president under Sec. 2 of Art. VI of the Constitution. In such event, Marcos Jr. claimed, the Comelec would usurp the jurisdiction of the Supreme Court sitting as the Presidential Electoral Tribunal (PET) as “the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice President”. (Sec. 4 of Art. VII of the Constitution).
Marcos Jr.’s attack on the Comelec’s jurisdiction is grossly misplaced:
Comelec’s jurisdiction to deny due course or cancel a CoC is vested by the Omnibus Election Code (OEC) under Sec. 78 in relation to Sec. 74 thereof. Such jurisdiction covers all CoCs for local and national positions, including that for president;
The Comelec’s separate jurisdiction does not intrude into the PET’s constitutional jurisdiction as the sole arbiter of all presidential or vice-presidential electoral protests and quo warranto petitions after the proclamation of a winner;
The Comelec’s jurisdiction is on pre-election issues, while the jurisdiction of the PET is over post-election contests on the election of the president or vice-president; and
The Fr. Buenafe petition does not require the Comelec to determine the qualifications of Marcos Jr. for president. The petition is limited to the enforcement of his ineligibility due to his final conviction for tax offenses under the NIRC.
Moreover, Marcos Jr. mixes the qualification of and eligibility for an elective public office. A distinction is imperative because no less than Sec. 74 of the OEC requires that the CoC must state that the candidate “is eligible for said office.” The OEC uses the precise word “eligible”, not “qualified”. To reiterate, the Fr. Buenafe petition does not challenge Marcos Jr.’s qualifications for president, but his lack of eligibility to be a candidate pursuant to Sec. 286(c) of the NIRC and/or Sec. 12 of the OEC.
The following are the salient differences between “qualified” and “eligible”:
Qualification consists of the mandatory requirements prescribed for a public office which a person must possess to exercise the powers and discharge the duties appurtenant to said office once elected. Eligibility is the worthiness of being chosen or elected by not having any disqualification;
Some of the qualifications for an elective office may be complied with at the latest on election day, like age and residency. On the other hand, eligibility must inhere in the candidate upon filing of his COC;
Qualification consists of purely positive attributes, while eligibility can refer to a negative factor which disqualifies a person from seeking and holding a public office; and
While the Constitution prescribes the qualifications for president, the Congress, without adding to or diminishing from the basic qualifications, has the plenary power to legislate on disqualifications like those provided for under the NIRC and OEC which have not been declared unconstitutional.
b) Marcos Jr. did not commit any false material representation in his CoC.
He argued that any false representation to be material must relate to the qualifications for an elective office. Accordingly, he contended that he did not misrepresent his qualifications under the Constitution. Moreover, he claimed that his non-disclosure of his final conviction was not intended to mislead or deceive the electorate.
The foregoing defense is also wanting in merit. What the Fr. Buenafe petition invoked is the ineligibility or disqualification of Marcos Jr. to run for president due to his final conviction for tax offenses, not his lack of qualifications for president under the Constitution. Moreover, his admission of prior conviction evinces his knowledge of his disqualification under the law which he is presumed to know and he actually knows. Furthermore, his pretense of not having any intent to mislead or deceive the electorate is incredulous because the malevolent intent is patent in his false representation of eligibility.
c. The accessory penalty of “perpetual disqualification” imposed by Presidential Decree No. 1994 constitutes an ex post facto law.
Again, this contention is unmeritorious. Marcos Jr. conveniently overlooked that PD 1994 became effective on January 1, 1986. Consequently, the imposition of the accessory penalty covered his failure to file his ITR for 1985 which was due on April 15, 1986, three months after PD 1994 took effect. It must be recalled that the Court of Appeals in convicting Marcos Jr. for failure to file his ITR for 1985 even increased the penalty of fine from P2,000.00 to P30,000.00 consistent with the graver fine imposed by PD 1994. Verily, the claim of an ex post facto law must be jettisoned.
d. The accessory penalty of “perpetual disqualification” can only be imposed against a convicted incumbent public official.
This argument is without merit because from the language of Sec. 286(c) of the NIRC, “perpetual disqualification” specifically attaches to the offender who was a public official at the time of the commission of the offense, not upon his conviction which could come much later when the errant public official is not any more an incumbent like Marcos Jr. A contrary construction frustrates the intention of the law.
The other arguments in defense of Marcos Jr. will be debunked in the next column. Suffice it to say that his feeble defense cannot surmount the clarity and credibility of the Fr. Buenafe petition.