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Comelec First Division junks disqualification case vs. Marcos Jr.

The Commission on Elections Former First Division has dismissed the disqualification case filed against presidential candidate former Senator Ferdinand Marcos Jr., Comelec spokesman James Jimenez said on Thursday.

According to Jimenez, the division junked the consolidated petitions of Bonifacio Ilagan, Abubakar Mangelen, and Akbayan "for lack of merit."

“WHEREFORE, premises considered, the Petitions are hereby DISMISSED for lack of merit,” read the 41-page ruling penned by Commissioner Aimee Ferolino.



According to the petitioners, Marcos should not be allowed to run for president because of his conviction for violating the Internal Revenue Code, which carried a penalty of perpetual disqualification from holding any public office.

They noted that in 1995, a Quezon City court convicted Marcos for not filing his income tax returns from 1982 to 1985. The conviction was upheld by the Court of Appeals but removed the imprisonment sentence.

Marcos, they said, did not appeal the ruling. 

Asked for comment on the campaign trail, Marcos said, "That is a good result for us."

"Hopefully, we can carry on with the campaign with all of these distractions that were put in the way," Marcos said.

Told that there were petitions against his candidacy before the Comelec Second Division, he said, "What else can we do but wait for the decision."

Ex-post facto laws

"Contrary to petitioners' assertion, the penalty of perpetual disqualification by reason of failure to file income tax returns was not provided for under the original 1977 NIRC," read the 41-page resolution penned by Commissioner Aimee Ferolino.

"To be clear, the penalty of perpetual disqualification came into force only upon the effectivity of PD 1994 on 01 January 1986," it added.

The ruling said the penalty cannot be made to apply to respondent's tax violations, which were committed before the effectivity of the said law, in accord with the constitutional prohibition against ex-post facto laws.

"The petitioners said that despite its omission from the trial court and Court of Appeals decisions, the penalty of perpetual disqualification was 'deemed written therein'," the ruling said.

"The contention lacks merit," it added.

"A penalty that would deprive a citizen of his political right to be voted for in an election should be clearly, unequivocally, and expressly stated in the decision," the ruling said. 

'Moral turpitude'

The ruling also indicated that Marcos' failure to file income tax returns in 1982 to 1985 was not a crime which involved moral turpitude.

"After carefully examining each argument of the parties and the circumstances surrounding respondents failure to file income tax, we find to rule in respondent's favor," the resolution read.

The former first division said the failure to file tax returns was neither immoral nor did it involve fraud.

"Is the failure to file tax returns inherently immoral? We submit that it is not. The failure to file tax returns is not inherently wrong in the absence of a law punishing it," the former First Division said.

"Was there fraud in the failure to file income tax returns of respondent? We don't think so," it added.

Citing the case of Jose B. Aznar vs. Court of Tax Appeals, the Comelec said the Supreme Court considered the failure to file income tax returns "a mere omission on the part of the taxpayer, thereby removing it from the ambit of acts that constitute fraud." 


The Comelec division likewise ruled against the argument in the Ilagan petition, claiming that failure to file income tax returns is considered a form of tax evasion.

The commissioners said the Local Finance Committee of the Province of Ilocos certified that the taxes due Marcos were withheld against his salary.

They also said the records are bereft of any evidence that Marcos voluntarily and intentionally violated the law.

“While he was found by a competent authority to have failed to file his income tax returns, failing to file a return, standing alone, is not an attempt to evade or defeat tax,” the resolution read.

In ruling out that failure to file tax returns is a crime involving moral turpitude, the Comelec Division cited the SC ruling in the case of the Republic of the Philippines vs. Ferdinand Marcos II and Imelda Marcos, which they said, ruled that a failure to file a tax return is not a crime involving a moral turpitude.

Not binding precedent

Retired Comelec Commissioner Rowena Guanzon, former First Division presiding officer, in her separate opinion released January 31, said this jurisprudence is not a “binding precedent” as 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.”

However in the resolution penned by Ferolino, the Comelec Division said the SC also ruled that “a dictum that generally is not binding as authority or precedent within the stare decisis rule may be followed if sufficiently persuasive.”

“Therefore, having found the same to be true in the aforesaid case of Republic vs. Marcos II and Marcos, We see no legal infirmity in adopting the said dictum in the hopes of finally putting the issue on moral turpitude to rest,” the resolution read.

The Comelec division also answered in the affirmative on the issue whether Marcos is qualified to be elected as the Philippine president.

The commissioners stated that Marcos’ failure to pay the fines before the QC RTC, which the petitioners claimed to be equivalent to serving Marcos’ sentence, is not a ground for disqualification under the Omnibus Elections Code.

“It is clear as day that Respondent’s sentence to pay fines does not fall under any of the above-mentioned instances for disqualification under Section 12 of the OEC to operate,” the Comelec Division said.

“Thus, whether or not he satisfied the payment of fines and penalties with the RTC of Quezon City is immaterial, as his sentence did not fall within the purview of  Section 12 of OEC,” the resolution read.

In concluding the resolution, the Comelec division explained the importance of preventing “convicted criminals and the underserving” from running and being voted for.

No bias

As the institution mandated to enforce and administer all laws relating to the conduct of the elections, the Comelec division said the poll body “must see to it that is judgment is free from bias and partiality.”

“We recognize that the resolution of the instant case is of paramount importance, considering that the 2022 [National and Local Election] is fast approaching. However, the deprivation of one’s right to be voted for in any election should not be exercised whimsically and capriciously, lest we will be preventing qualified candidates from pursuing a position in public office,” the Comelec division said.

Another member of the First Division, Commissioner Marlon Casquejo has issued a separate opinion which bolstered Ferolino’s argument that the case of Marcos has long attained finality.

Thus, the petitioners could not assert that the judgment did not reach its finality if it is a void judgment.

He said the petitioners could not rely on the case of Gonzales vs. Solid Cement Corporation as careful scrutiny of the said jurisprudence would show that “it is in fact misleading to the point that if read in the context of how the petitioners present it, would lead a gullible reader to believe that this commission can in its almighty power declare the final judgment of the Court of Appeals in Republic vs. Marcos void.”

He added that the Marcos case and the cited jurisprudence have a different factual milieu and different nature.

Further, he pointed out that the solicitor general should have filed an appeal within the prescribed period if the CA decision on Marcos case was actually void.

Casquejo’s separate opinion also backed Ferolino’s ruling, saying it is the dispositive portion of the decision that controls the purposes of execution.

He said the CA ruling, modifying the RTC ruling is written in clear language that casts out ambiguities.

“Again, in light of being repetitious, the undersigned once again stress that the Commission will not be used as instruments by any party to exercise jurisdiction to modify a decision that has long became final. At some point issues must come to an end,” he said.

“Not all modification or reversal in every ruling becomes void just because one party feels [aggrieved] or unsatisfied. Much more can just any person disturb a final ruling that has long rested in the confines of the archives of the court,” he added.

Moreover, Casquejo said special penal law  on the accessory penalties are deemed written in the decision under Article 73 of the RPC  but this has no “automatic application” when it comes to special penal laws.

Crime of omission

Lastly, Casquejo said the non-filing of ITR does not equate to moral turpitude. 

While he believes that the non-filing of ITR, which speaks of crime of omission on the part of Marcos, is “necessarily punishable by law,” he said this “will not suffice to equate to moral turpitude.”

He cited the case of Edgar Teves vs Comelec which involves a candidate for election but was convicted of violation of the Anti-Graft Corrupt and Practices Act.

Casquejo applied to Marcos’ case the SC jurisprudence which downgraded the indeterminate penalty of imprisonment of nine years and 21 days as minimum to 12 years as maximum to a lighter penalty of fine of P10,000 is a recognition that petitioner’s violation was not intentionally done contrary to justice, modest, good morals but due to his lack of awareness or ignorance of the prohibition.

He said Marcos cannot be faulted if the CA found grounds to modify the ruling of the RTC and obliterated the imposition of imprisonment.

Casquejo stated that Marcos has all the right to claim and declare that he has not been found liable for an offense which carries with it the accessory penalty of perpetual disqualification to hold public office which has become final and executory.

“The Commission is confronted with legal issues subject to strong public scrutiny. But no matter how unpopular our findings and appreciation of facts and the law is, we must remain unperturbed and apply the law as it is,” Casquejo wrote.

“The welfare of the general public is best served when we resolve any case without fear or favor. That is the true test of integrity. We examine each case based on how they were presented, coupled with evidence, the law and jurisprudence to back up every decision. We are not easily swayed because our duty to uphold the Constitution is more paramount than fear of reprisal,” he added.

The consolidated disqualification cases against Marcos which was handled by the First Division became controversial when Guanzon accused Ferolino of delaying the resolution of cases.

She claimed that the reason behind the delay was there were efforts to influence Ferolino.

Ferolino, however, accused Guanzon of trying to influence her decision on the said cases.

Prior to her retirement, Guanzon had already released her separate opinion where she voted for Marcos’ disqualification as she believes that the non-filing of income tax returns for four consecutive years constitutes moral turpitude.

Six out of seven petitions against Marcos’ candidacy had already been junked by the Comelec divisions.

Only the disqualification case filed by Pudno Nga Ilokano remains pending before the Comelec.—NB/LDF, GMA News