Manila Standard : Guanzon did not read Comelec’s BBM decision carefully

18 February 2022

By Louis "Barok" Biraogo | Manila Standard

“Here’s what it says.”

Last week, the First Division of the Commission on Elections finally came out with its decision dismissing the petitions seeking to disqualify former Senator Bongbong Marcos (BBM) from running for President in the May 2022 elections. Commissioner Aimee Ferolino wrote the decision.

The petitioners had argued that BBM should be disqualified because almost 30 years ago, the Regional Trial Court of Quezon City (RTC) convicted BBM of tax evasion, and ordered BBM incarcerated. Although they insisted that tax evasion is a crime involving moral turpitude, they did not elaborate on what happened after the RTC rendered its judgment.

BBM appealed to the Court of Appeals (CA), which eventually modified the RTC decision and declared that BBM failed to file his income tax return (ITR) when he was still the provincial governor of Ilocos Norte back in 1985. The CA required BBM to pay a fine, in lieu of imprisonment.

In sum, the CA ruled that BBM’s only fault was that he failed to file his ITR. The CA did not find BBM guilty of tax evasion.

Actually, BBM cannot be guilty of tax evasion because his salary as a government official is automatically subjected to the mandatory withholding system for income taxes, which covers the entire civil service. Under the withholding system, income tax is already collected by the government before the salary is paid.

Tax evasion means the government was not paid the taxes due it. Thus, there is a legal injury inflicted on the State.

In contrast, the failure to file an ITR does not result in any legal injury to the State because, as stated above, the income tax was already collected by the government long before the salary is paid, and regardless of whether or not an ITR is filed.

To repeat, the CA declared that BBM should be faulted not for tax evasion, but for his failure to file his ITR. Thus, the CA did not order the imprisonment of BBM.

Moral turpitude means an utter lack of a basic sense of moral obligations. Jurisprudence provides that the failure to file an ITR is not a crime involving moral turpitude. That is why there is nothing in the decision of the CA which declares BBM guilty of a crime involving moral turpitude.

Initially, BBM filed a petition in the Supreme Court (SC) to question the ruling of the CA, but he withdrew it soon thereafter, with the permission of the SC.

The State, represented by the Office of the Solicitor General (OSG), is not allowed to appeal from a court ruling in a criminal case, but it may file a petition for certiorari in a higher court to challenge the lower court’s ruling, if the ruling is attended with grave abuse of discretion. Noticeably, the OSG did not file any such petition.

Eventually, the decision of the CA became final and executory. It is res judicata, which means it may no longer be disturbed, even by the SC.

In dismissing the disqualification petitions, the Comelec said the existence of moral turpitude is a matter which only courts of law, and not administrative agencies like the Comelec, are empowered to rule on. Since the CA did not make a categorical finding that BBM committed a crime involving moral turpitude, the Comelec may not make such a finding. To hold otherwise is to allow the Comelec to amend a decision of the CA. The Comelec does not have that power.

Even assuming that the CA decision is erroneous, it can no longer be altered because it is res judicata as I mentioned earlier, and because of the “law of the case” doctrine, which means the ruling is conclusively binding on both BBM and the State.

A crime can be mala in se (inherently evil) such as murder, or mala prohibita (illegal simply because the law says so) like the possession of an unlicensed firearm.

In the Comelec decision, Commissioner Ferolino pointed out that the failure of BBM to file his ITR does not involve moral turpitude because the act is not mala in se, but merely mala prohibita.

Retired Comelec Commissioner Rowena Guanzon claims Ferolino’s statement is not supported by what Guanzon calls the “latest jurisprudence” on the matter. Guanzon posted her remarks on her social media account, where she egotistically indicated that she has a law degree and a master’s degree. Why Guanzon has to advertise the extent of her educational attainment is anybody’s guess.

Apparently, Guanzon did not read the Comelec decision carefully, as seen in her failure to comprehend the real import of the decision, which I discussed in detail above. In essence, whether the failure to file an ITR is mala in se or mala prohibita is immaterial, because jurisprudence provides that it is not a crime involving moral turpitude, period.