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Bongbong should be disqualified due to 'moral turpitude,' Guanzon says in separate opinion

The Commission on Elections (Comelec) on Monday released Commissioner Rowena Guanzon's separate opinion where she said she voted to disqualify Ferdinand “Bongbong” Marcos Jr. from the 2022 presidential race due to "moral turpitude."

Guanzon, in her 24-page separate opinion, said this stemmed from Marcos' non-filing of income tax returns from 1982 to 1985.

“In view of the foregoing, I vote to GRANT the Petitions for disqualification and declare Respondent Ferdinand R. Marcos II DISQUALIFIED from running for the position of President of the Philippines,” the poll commissioner wrote.

She explained that Marcos was not sentenced by final judgment to a penalty of imprisonment of more than 18 months and is not perpetually disqualified from running for public office.

Guanzon, who will retire on February 2, noted that the Court of Appeal's (CA) decision “never meted” the penalty of three years of imprisonment against Marcos contrary to the conviction rendered by the Quezon City Regional trial Court for violations of Section 45 and 50 of the 1977 National Internal Revenue Code.

The CA decision, she added, also did not impose the penalty of perpetual disqualification against Marcos.

Hence, the Comelec is “unable to find any legal basis to allow the imposition” of the said penalty against the presidential aspirant.

“The Commission cannot read into the decision of the Court of Appeals something that is clearly not there. It is beyond the purview of this Commission’s constitutional mandate and duty to alter the dispositive portion of the CA Decision rendered more than two decades ago,” Guanzon said.

She added that the legal remedy on this decision is “elsewhere and lies not with the Commission” if the CA made a “grievous error” in its decision or interpretation and application of the law.

However, Guanzon said that Marcos’ “non-filing of Income Tax Returns for the years 1982 to 1985 constitutes moral turpitude.”

Presidential aspirant Dr. Jose Montemayor Jr. backed Guanzon, saying that she is “correct in that there is moral turpitude on the side of [Marcos]” for the said non-filing of his income tax returns.

“She is within her right to submit and publicize her full decision on the matter, and to preempt and avoid any potential corruption issues involving other concerned parties,” he added in a statement.

Under Section 12 of the Omnibus Election Code (OEC), “[A]ny person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or 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.”

“This disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified,” Section 12 of OEC further states.

But according to Guanzon, “After an assiduous analysis of the arguments of the parties and the evidence on record, I find that Respondent’s repeated and persistent non-filing of income tax returns in 1982, 1983, 1984, and 1985, which resulted in his conviction, constitutes an offense involving moral turpitude."

The camp of Marcos, on the other hand, stressed that moral turpitude could not serve as grounds for his disqualification in the May 9 polls.

Lawyer Victor Rodriguez on Monday said that Marcos "possesses all the qualifications and none of the disqualifications to run, campaign and serve the Filipino people."

In explaining this, the poll commissioner noted the petitioners’ argument, asserting that “the requirement of filing tax returns is an essential component of State’s inherent power of taxation as it ascertains the amount of tax due from every taxpayer” and when Marcos “decided to evade his duty of filing his income tax returns for the years 1982 to 1985, he was robbing the government of the opportunity to ascertain the correct income tax due from him.”

She also took note of Marcos camp’s argument that ITRs cannot be considered as inherently immoral since it is merely an offense malum prohibitum and that he was not motivated by ill-will when he failed to file his tax dues by citing the case of Republic of the Philippines vs. Ferdinand Marcos II and Imelda R. Marcos.

Guanzon said the portion of the case which was relied upon by Marcos’ camp is not a “binding precedent” that could refute the petition to disqualify him on the ground of moral turpitude, saying this is just an “obiter dictum” or as defined by the Supreme Court, is “an opinion expressed by a court upon some question of law that is not necessary in the determination of the case before the court.”

The poll official also rejected Marcos camp’s assertion that his failure to file his ITRs does not involve moral turpitude by citing a concurring opinion on the case of Teves v. Comelec.

“Respondent averred that when all of the circumstances surrounding his failure to file income tax returns are taken into consideration, it cannot be said that he was motivated by ill-motive because the taxes on his income have already been withheld by the Provincial Government, and therefore he does not stand to benefit from his offense. I do not agree,” Guanzon said.

“One thing is certain: by not filing an income tax return, he deprived the government of the chance to ascertain whether what were withheld correctly corresponded with what he earned,” she added.

Guanzon further explained that while CA had acquitted Marcos of the offense of failure to pay his ITR, he was still ordered to pay deficiency taxes.

“For decades, the Government was deprived of the taxes which Respondent failed to pay. In a very real sense, Respondent’s failure to file his tax return, which in turn led to the belated discovery of deficiency taxes, had a deleterious effect to public interest,” she said.

A closer scrutiny of the circumstances surrounding Marcos’ offense would reveal the latter’s failure to file his income taxes “is not just a mere omission or mistake on his part but deliberate and conscious effort to evade a positive duty required by law,” Guanzon explained.

She emphasized that Marcos’ “repeated and consistent failure” to file his ITR for four straight years was done while occupying a very important chief executive position in the land.

Guanzon said as a high government official, Marcos had staff members to help him in administrative matters. Thus, he has no excuse for not exerting the “slightest of efforts” to comply with the law.

Apart from being a high-ranking government official back then, she pointed out that Marcos was also the son of the President of the Philippines.

“Undoubtedly, Respondent wielded considerable power and influence. Instead of setting a good example for his constituents to emulate, Responded acted as if the law did not apply to him,” Guanzon said.

“Taken together, all of these circumstances reveal that Respondent’s failure to file his tax returns for almost half a decade is reflective of a serious defect in one’s moral fiber,” she added.

In justifying her position that Marcos should be disqualified from running for president, Guanzon said she found more weight in the evidence presented by the petitioners which include the certification from Quezon City RTC, showing that there were no records of payments for the decision made by the local court or the CA decision in 1995.

Guanzon noted that even Marcos camp had admitted during the preliminary conference that the presidential aspirant did not pay fines to the QC RTC.

To show proof that he has served his sentence, Guanzon mentioned that his camp submitted a LandBank of the Philippine official receipt. However, she said this official receipt supposedly for the payment of his tax deficiencies were payments for lease rentals.

The official receipt was not machine validated, does not contain any indication that the payment was for the deficiency taxes payable to the Bureau of Internal Revenue (BIR) or the RTC, and the receipt contained an erasure or correction which was not countersigned, Guanzon observed.

Further, Guanzon said the certification from the BIR provided by Marcos’ camp did not specify what the payment was for.

She added that Marcos’ camp did not adduce any evidence showing that they transmitted to RTC Branch 105 any proof of payment of compliance on payment of fines, which shows that he “inexplicably bypassed” the service of his penalty.

She then pointed out that under Section 12 of the OEC, the disqualification is deemed removed only once there is a showing that the sentence has already been served and the required period provided by the same section is met.

Lastly, Guanzon said Marcos could not be covered by the Section 51-A of the Republic Act 10963 or the Tax Reform for Acceleration and Inclusion (TRAIN) Law which extinguishes the penalties previously imposed against him.

Not moral turpitude

In a separate statement, lawyer Victor Rodriguez, Marcos' spokesperson, said moral turpitude could not serve as a ground for disqualifying the former senator in the May 2022 national elections.

He explained that on the issue of moral turpitude, the filing of a fraudulent return with intent to invade tax is considered as a crime involving moral turpitude as it entails willfulness and fraudulent intent on the part of the individual.

"The same, however, cannot be said for 'failure to file a return' where the mere omission already constitutes a violation. Thus, this Court holds that even if the conviction of respondent Marcos Jr. is affirmed, the same, not being a crime involving moral turpitude, cannot serve as a ground for his disqualification," he explained.

Guanzon authorized Comelec to release the copy of her separate opinion on Marcos' case,  days after she accused fellow Commissioner Aimee Ferolino of deliberately delaying the promulgation of the ruling so that her — Guanzon's — vote will not be counted. 

The ponente of the ruling, Ferolino, in response, accused Guanzon of trying to influence the case—With Giselle Ombay/KBK/AOL, GMA News