(Should BBM be disqualified?)
Quo vadis, Digong? In the light of realignments in political alliances, the big question today is, “Where will Digong go? Specifically, where will he lean as regards lending his influence over the tribunals which will decide on the current BBM disqualification case.
President Duterte currently has all but two appointees sitting in the Supreme Court. This theoretically gives him access to a super-majority of the 15-man Supreme Court.
Theoretically, Supreme Court Justices are expected to be impartial and independent, but this is merely theoretical and each Justice has his allowance for accommodation, all things being equal, whether it is his political philosophy or socio-civic or family or school ties, among others.
At the Comelec, the President’s appointees — Commissioners Inting, Casquejo, Peloton, and Ampoloquio — enjoy a majority of the seven- member Elections Commission. Again, the Comelec Commissioners are expected to be neutral and independent, but they also have their accommodation comfort zones.
Given the composition of both tribunals, the President’s influence cannot be underestimated.
Earlier, Digong seemed predisposed to allowing BBM’s disqualification case to run its natural course, without any indication of intervening on behalf of his daughter’s running mate.
The President’s surprising turn around against BBM earlier this month, notwithstanding his alliance with Inday Sara, exposes early cracks in the armor of the Triumvirate of Power.
On Nov. 19, Inday Sara officially resumed chairmanship of her regional party, Hugpong ng Pagbabago, after having resigned from it before the Nov. 15 deadline for substitutions to give way to her taking oath as chair of Lakas-NUCD, the party of Gloria Macapagal Arroyo.
Last Thursday, Sara officially declared that Lakas-NUCD had adopted BBM as its presidential candidate.
It would seem that Digong and Sara have parted ways this election.
Earlier this month, Digong was publicly campaigning against BBM, even disparaging him as weak, hinting that BBM is a cocaine user.
Is this a mere act pursuant to a complicated political plan? Only time will tell.
But wait! Also last Thursday in a gathering hosted by Digong to drum up support for Bong Go, his trusted lieutenant for 20 or so years, and presumptive Duterte proxy-president if he wins, he made a tearful and surprising declaration that he was withdrawing from the presidential race. Digong was quoted as saying, “Now the cat is out of the bag.”
What do these twists and turns all mean? Will Digong eat his words, and now shamelessly endorse BBM? Or will it be Isko, Ping, or even Manny, his erstwhile estranged party mate from PDP-Laban? Only Digong knows. Perhaps, we should just stop guessing.
In the meantime, let’s follow BBM’s disqualification case. In 1995, the Regional Trial Court of Quezon City found BBM guilty beyond reasonable doubt of the tax crime of non-filing of income tax returns and non-payment of income taxes for four years from 1982 to 1985 while he was governor of Ilocos Norte — which the Court of Appeals affirmed in 1997, though with modification, by dropping the mandatory penalty of imprisonment, and allowing BBM to pay only the deficiency income taxes plus fine.
On Aug. 31, 2001, the conviction became final and executory.
It is suggested that BBM could be disqualified as a presidential candidate because of his conviction which falls under the classification of moral turpitude.
In the 1979 case of Zari vs Flores, the Supreme Court ruled that evasion of income tax is a crime involving moral turpitude.
It is suggested that since tax evasion involves moral turpitude, the recurring failure to file income tax returns also involves moral turpitude.
Other experts disagree. They opine that BBM’s tax crime conviction cannot be classified under moral turpitude, and may not be a ground for his disqualification because tax evasion is not the same as failure to file tax returns. In an obiter dictum in the 2009 case of Republic vs. Imelda R. Marcos and Ferdinand R. Marcos Jr., the Supreme Court opined that the failure to file income tax returns does not involve moral turpitude.
Moreover, the Omnibus Election Code, which provides for the disqualification of any person who has been sentenced by final judgment of a crime involving moral turpitude, took effect only in 1986; BBM’s sins of omission occurred in 1982 to 1985 — prior to the effectivity of the Code.
Parenthetically, the Marcoses fled the country during the People Power Revolution in February 1986.
Under the Constitution, applying a law ex post facto is not allowed.
It should be noted, however, that Zari vs. Flores, was promulgated in 1979, and predated BBM’s conviction.
If failure to file tax returns is deemed analogous to tax evasion, provided the intent not to file is proven, BBM’s tax crime may be considered as involving moral turpitude.
However, assuming, arguendo, that BBM’s tax crime can not fall under moral turpitude, it may still fall under Presidential Decree No. 1158, signed into law by BBM’s own father, former President Ferdinand Marcos, which took effect on 3 June 1977.
Section 252c of PD 1158 as amended by PD 1994 (Section 286c), now Section 253c of RA 8424, otherwise known as the National Internal Revenue Code of 1997, as amended, imposes perpetual disqualification of public officials, convicted of any tax crime, from holding any public office, perpetual disqualification from the right to vote, and perpetual disqualification from the right to participate in any election.
While the Court of Appeals modified the RTC’s decision by dropping the mandatory penalty of imprisonment, BBM was still convicted of a tax offense.
As of this writing, the disqualification case has been assigned to the Second Division of the Comelec. By next week, we should have an idea of the direction the case is going.
The issues that the Comelec, and eventually the Supreme Court, must resolve are any, or a combination, of the following:
1. Is failure to file income tax returns, not simply for a year but four, proof of the intention to evade payment of taxes which renders it a crime involving moral turpitude?
Or is it completely different and considered a mere administrative crime which does not involve moral turpitude?
2. Is the crime of failure to file income tax returns, a special law which is malum prohibitum, and does not demand mens rea or intention (Commonwealth v. Guthrie, 616 A.2d), covered within tbe ambit of the Internal Revenue Code, as amended?
3. Was BBM aware that his conviction of a tax crime had a bearing on the representations under oath he made in filing his COC? Did he intend to commit a misrepresentation in his COC? Is intent relevant to determine misrepresentation under the Election Code which is also a special law?
4. Assuming the Comelec or the Supreme Court disqualify BBM for misrepresentation in his COC this year, can this be a basis to dismiss the still- ongoing case at the Presidential Electoral Tribunal between BBM and Leni Robredo for the vice presidency of the 2016 elections?
5. If “super lawyer” Estelito Mendoza argued for BBM, could he “wiggle” his way through issues 1 to 3, assuming fair and uninfluenced tribunals?
Abangan.
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Author’s email: [email protected]
