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Comelec Second Division junks petition to cancel Marcos Jr.'s COC

By NICK GARCIA Published Jan 17, 2022 11:56 am Updated Jan 17, 2022 4:22 pm

The Commission on Elections (Comelec) Second Division has junked a petition to cancel Ferdinand "Bongbong" Marcos Jr.'s certificate of candidacy for the 2022 national elections.

The Comelec Second Division released the ruling on Jan. 17, which was also shared by Ted Te, the lead counsel for the group of civic leaders led by priest Christian Buenafe.

In its ruling, the second division argued that the representations made in the COC of Marcos Jr. are important, but that they are not false.

Petitioners argued that Marcos Jr. committed a crime of "moral turpitude" and perjury for making false representations in his COC by seeking the country's highest office in spite of his tax conviction.

"The Second Division ruled that there was no ground to cancel Marcos Jr.’s COC on the ground of material misrepresentation," the decision read.

Te said they disagree with the Comelec in its ruling, and will file a motion for reconsideration.

No deliberate attempt to mislead, misinform

According to the Comelec Second Division's 32-page ruling—penned by Commissioner Socorro Inting and with concurrences from Commissioners Antonio Kho Jr. and Rey Bulay—Marcos Jr. cannot be said "to have deliberately attempted to mislead, misinform, or hide a fact which would otherwise render him ineligible" to run for public office.

Petitioners had argued that when Marcos Jr. stated in his COC that he had not been meted the penalty of perpetual disqualification, he committed false material representation by ticking "No" on Item No. 22, which asked: “Have you ever been found liable for an offense which carries with it the accessory penalty of perpetual disqualification from public office, which has become final and executory?"

Te's group argued that Marcos Jr. had been convicted for failing to file his income tax returns for several years, claiming that such a failure merits perpetual disqualification. 

According to the Section 78 of the Omnibus Election Code, a COC may be denied due course or canceled when it contains a false claim.

But commissioners ruled that Marcos Jr. ticked "No," as "it was precisely because he had no basis at all to answer in the affirmative."

"To the best of Respondent's knowledge, what with decades of public service tucked under his belt, he honestly thought or believed that he has never been disqualified from holding public office," the decision read. "Thus, there is manifestly no intention on the part of the Respondent to deceive the electorate as to his qualifications for public office."

"In like manner, when Respondent declared in Item No. 11 of his COC that he is eligible for the office for which he seeks to be elected to, he was essentially speaking the truth,” it added.

Penalty not retroactive

The Comelec Second Division said the petitioners were "gravely mistaken," as Presidential Decree No. 1158, or the National Internal Revenue Code (NIRC) of 1977, was only applicable for the taxable years of 1982, 1983, and 1984.

Presidential Decree No. 1994, which added the penalty of perpetual disqualification to hold public office, vote, or participate in any election for a public official, only became effective on Jan. 1, 1986.

In other words, mandatory filing of income tax returns during those years already lapsed before PD 1994 took effect. The law, then, cannot be applied ex post facto, or retroactively, as it would be unconstitutional.

"The applicable penalty at the time under Section 73 of 1977 NIRC only provided for either a fine or imprisonment or both," the decision read.

Commissioners also pointed out that that the Court of Appeals's decision on Oct. 31, 1997, "did not categorically hold that Respondent is convicted of a crime involving moral turpitude nor did it positively pronounce that Respondent is meted the penalty of imprisonment for more than 18 months."

"There is likewise no definitive declaration by the said Decision that herein Respondent is perpetually disqualified from holding public office," the ruling read. "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."

Comelec spokesperson James Jimenez reiterated the ruling in a press briefing after it has been made public.

Te’s group, meanwhile, said that they disagree with the ruling, and will file a motion for reconsideration with the Comelec en banc "within the period provided under the Comelec Rules."

Pending disqualification cases

Comelec still has pending disqualification cases against Marcos Jr. before the First and Second Divisions.

The petition of Ilocano group led by Christian Monsod is still pending in the second division, while the consolidated Akbayan/Ilagan/Mangelen petition is in the first division. They've also cited Marcos Jr.'s tax conviction.

Jimenez said the first division would be "unlikely" to release its decision on the three disqualification cases today, Jan. 17, as Comelec Director 3 Elaiza Sabile-David earlier told TeleRadyo that staff members of one of the poll body's commissioners handling the petitions have tested positive for the disease.

"Unfortunately wala pa po dahil hindi pa ready yung draft," Sabile-David said. "Magkakaroon po ng delay po sa paglabas ng decision ng promulgation."

Presiding Commissioner Rowena Guanzon also clarified in a tweet that a commissioner of the first division was in isolation due to close contact with a staff who tested positive for COVID-19.

Jimenez said the second division's ruling in favor of Marcos Jr. will have "no impact" on the pending decision on the disqualification petitions.

“It is difficult to speculate on other cases on the basis of one decision," he said. "Ang maganda, hintayin natin lumabas ang bawat decision, and we will discuss them as they come out."

Possible scenarios for Marcos Jr.

During the press conference, Jimenez clarified that with the cases against Marcos Jr. still unresolved at the Comelec en banc level, his name would still appear on the ballot.

Cases may be appealed before the Comelec en banc, and even up to the Supreme Court.

If Marcos Jr. gets disqualified with finality, meanwhile, Jimenez said it amounts to an "involuntary withdrawal."

Those who bear the same surname as Marcos Jr., then, may run in his stead. Among those eligible to substitute for the presidential aspirant are his sister, Imee Marcos, and his wife, Lisa Araneta Marcos.

“The substitution can be made up to mid-day of election day," Jimenez said. "At that point, a COC can be filed before the election board inspectors to show that it has been made."

The substitute candidate doesn't necessarily have to come from the same political party, Jimenez noted, as there's nothing in the rules that says so. Marcos Jr. is the standard bearer of the Partido Federal ng Pilipinas.

But when Marcos Jr. gets disqualified after winning as president-elect in the May elections, the Comelec spokesman said cases will surely be filed.

"But from what I understand of the law that applies right now, that particular set of circumstances will lead to the vice president succeeding (him)," he said. "Not the second placer (in the presidency)."

The 1987 Constitution states that the vice president is mandated to assume the presidency in case of the death, disability, or resignation of the incumbent President, during which the Congress of the Philippines is mandated to enact a law calling for a special election three days after the vacancy in the Office of the President and Vice President.


In a statement after the ruling was publicized, Marcos Jr.'s spokesman Atty. Vic Rodriguez thanked Comelec for “upholding the law” and allowing 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,” Rodriguez said.

Acting palace spokesman Karlo Nograles said they respect the decision of Comelec, stressing that it's an "independent constitutional body."

Sen. Ping Lacson, who's also seeking the presidency, said it's best that "we respect the ruling."

"The Comelec has the mandate to decide on any case that falls under its jurisdiction and the petition to disqualify ex-Senator Ferdinand Marcos Jr. is one such case," Lacson said in a statement. "That said, there are venues provided by our electoral system to ensure fairness for all concerned, and we should respect them as well."

Leody De Guzman, another presidential aspirant, criticized the Comelec Second Division's decision, saying it supposedly serves as a sign of the outcomes of the disqualification cases against Marcos Jr.

"Labas sa usaping teknikalidad, hindi makatuwirang patakbuhin para maging opisyal ang kandidatong napatunayang hindi nagbabayad o hindi nagdedeklara ng tamang buwis," De Guzman said in a statement. "Paano sila tuwirang magsisilbi sa gobyernong nais nilang pamunuan?"

Prior to the Comelec Second Division decision, Vice President Leni Robredo told reporters that she won't be bothered whatever the decision is.

"Hindi naman apektado iyong laban," Robredo said. "Ang lagi naman namin sinasabi na iyong laban ng aking kanditatura ay hindi naman nakadepende saka nakabase sa galaw ng ibang kandidato."

Shortly after the news broke, #DisqualifyMarcosJr almost immediately became a trending topic on Twitter. According to Twitter trends tracker trends24, over 12,000 tweets used the hashtag.