“My perspective on the Marcos disqualification case has been misused and taken out of context.”
Over the weekend, the Marcos campaign released a press statement that suggested I supported the view that he should not be disqualified on the basis of the political questions doctrine, that is this is an issue for the people to decide in its sovereign capacity and not for the Comelec or the judiciary to decide.
Their basis for the press statement is an interview aired in ANC last December 31,2021, the year ender for After the Fact anchored by Christian Esguerra.
All those who watch and listen to Christian know that he is an excellent interviewer, probably the best in his generation. He asks good and intelligent questions. He probes, explores and discusses options with his guest. It is in this context that I suggested several scenarios to the Marcos disqualification case. I took care in being fair and objective, and yes not partisan, about these scenarios.
I certainly did not advocate that the Comelec or the Supreme Court should rule in favor of Marcos – nor did I advocate that he be disqualified. That is in fact up to the two bodies to decide and as long as they do it with independence and not influenced or coerced by outside actors, I can support whatever outcome they decide.
Since one part of my perspective on the Marcos disqualification case has been misused and taken out of context, let me share my analysis of the case.
The Marcos cancellation/disqualification petitions were triggered by Marcos’ 1995 conviction for failure to file his income tax returns (ITRs) for four consecutive years from 1982 to 1985. One of the main issues in these petitions is whether BBM’s 1995 conviction is for a crime involving moral turpitude, which carries perpetual disqualification from holding any public office.
Notice that while the conviction was affirmed by the Court of Appeals, the appellate court only imposed a fine with no imprisonment. The conviction became final in 2001. These facts are not controverted.
Estelito Mendoza, one of Marcos’ lawyers, argues that the former’s conviction in the tax case does not equate to a crime involving moral turpitude, for which one might be disqualified. According to Mendoza, the [Court of Appeals] CA decision does not, and no inference can be made from its decision that Marcos in this case, has been found by the CA of committing a crime involving moral turpitude.
Former Associate Justice Antonio Carpio argues Marcos is not eligible to run for president, citing two legal provisions: First, Section 12 of the Omnibus Election Code (OEC) disqualifies any candidate who has been convicted by final judgment of “any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude.” Secondly, Section 253(c) of the Tax Code provides that “any public officer” who is convicted of any crime penalized by the Tax Code is “perpetually disqualified from holding any public office, to vote and to participate in any election.” Either one of these two grounds is sufficient to disqualify Marcos, Carpio wrote.
The fate of Marcos will be decided initially by the Comelec and ultimately by the Supreme Court. I will not pretend to read the minds of the Commissioners and the Justices. For sure, a technical analysis akin to the Carpio view can justify a cancellation/disqualification decision. The Commissioners and Justices can also reject that view and accept Mendoza’s argument saving the Marcos candidacy.
Let’s be clear that the Comelec and the Supreme Court have the authority to decide these petitions. But there is a scenario where the Comelec and/or the Court may decide to decline to decide that and allow the people to make the decision through the ballot box. I am not advocating that at all, at least right now, but I recognize that it can happen.
The worst-case scenario is for the Court to come up with a decision (including resolving motions for reconsideration) only after the 2022 elections but with Marcos already getting the most number of votes. Equally bad is a decision made on the eve of Election Day, causing confusion and chaos.
These scenarios, in effect, will be nullifying the will of the people which goes against the essence of democracy. This will not only be very divisive but can be a lingering pain in the backside for years to come of whoever then becomes president in place of a disqualified Marcos.
In any case, the better scenario on the Marcos petitions is for the Comelec and Supreme Court to decide the petitions by the end of March, at the latest. That would mean the people would be apprised of their choices well ahead of their vote and the other campaigns will be able to recalibrate depending on the outcome of the petitions.
This way, the election would be won through the ballot box and not through a legal decision which will make the outcome illegitimate in the eyes of many of our people. That in turn will create instability and tempt the military and similar forces to intervene. No one should want that scenario.
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