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The Manila Times : Absence of material misrepresentation in Marcos CoC

News & Interviews
27 November 2021

By Antonio Contreras | The Manila Times

THE main cause of disagreement in the petition against presidential candidate Ferdinand Marcos Jr. is that the petitioners are alleging that he was convicted for a crime involving moral turpitude. In my earlier column, I argued that the Supreme Court had ruled in G.R. 130371 and G.R. 130855 that failure to file income tax returns (ITR) does not amount to a crime involving moral turpitude.

Again, let me emphasize that as a voter, I still hold Marcos accountable for his non-filing of his ITR not only once, but repeatedly. And it is something that I count against his candidacy, simply because he still violated the law for which he was found guilty and was penalized with a fine. After all, it is not just about being convicted of a crime involving moral turpitude. It is in being proven to have violated the law.

The larger issue, however, is whether his certificate of candidacy (CoC) should be canceled, since while one may not necessarily vote for Marcos, it doesn't mean that he deserves to be disqualified and his CoC considered canceled, hence he cannot be substituted.

The current conventional wisdom is that there is no ground to cancel his CoC since his conviction does not involve a crime involving moral turpitude. The Omnibus Election Code (OEC), or Batas Pambansa 811, stipulates that the grounds for the cancellation of, and denial of due course to, a candidate's CoC rests on material misrepresentation about the qualifications of a candidate.

The qualifications for president as stipulated in the 1987 Constitution is in Article VII, Section 2, which states that, "No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least 10 years immediately preceding such election."

Nowhere in the qualifications listed in the Constitution does it say that a candidate must not have been convicted for a crime involving moral turpitude. It is in the OEC where certain disqualifications are enumerated, which are as follows: 1) those declared as incompetent or insane by competent authority; 2) those sentenced by final judgment for subversion, insurrection, rebellion or any offense for which he has been sentenced to a penalty of more than 18 months imprisonment; 3) those sentenced by final judgment for a crime involving moral turpitude; and 4) those who are permanent residents of or immigrants to a foreign country, unless he has waived his status as such.

It is also a fact that disqualification proceedings are different from cancellation of CoC proceedings. The former is governed by Section 79 of the OEC, and the latter by Section 78.

In Tagolino v. HRET, GR 202202, 19 March 2013, the court ruled that the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for. Thus, for president, these only refer to the qualifications stipulated in the 1987 Constitution. And not being convicted for a crime involving moral turpitude is not mentioned as a requirement there.

In Gonzalez v. Comelec, GR192856, 8 March 2011, the court ruled that the misrepresentation must be material, i.e., misrepresentation regarding age, residence and citizenship or non-possession of natural-born Filipino status. What is therefore clear is that while conviction in a crime involving moral turpitude can be a ground for a petition to disqualify a candidate (Section 79 of the OEC), it cannot be a ground to cancel the CoC of a candidate (Section 78 of the OEC) simply because Section 78 petitions only focus on material misrepresentations of qualifications, and not on the possession of attributes that could cause disqualification as listed in the OEC.

This is significant simply because while someone whose CoC has been canceled cannot be substituted, someone who has been disqualified can be substituted until noon of election day by another person with the same surname.

While one can raise the case of Villaber v Comelec, GR 148326, Nov. 15, 2001, to challenge this view, a closer inspection of the case leads to the conclusion that the main issue that was decided by the court was whether violation of BP 22, or the Bouncing Check Law, amounted to a crime involving moral turpitude. The court did not dwell on whether disqualification, and not cancellation of the CoC, was the more appropriate remedy. The court cited Section 12 of the OEC which talks of disqualification. The OEC was legislated in 1985, and the Constitution was promulgated in 1987. I would surmise, in my non-lawyer mind, that the Constitution promulgated at a later year prevails, or amends, and therefore has precedence over a regular piece of legislation that was passed earlier.

Furthermore, the court in later rulings after Villaber (Tagolino was promulgated in 2013 and Gonzalez in 2011) has elucidated the differences between a Section 78 proceeding (cancellation of CoC) and Section 79 proceeding (disqualification).

I am not a lawyer. I must admit that my only ground to stand on is my understanding of the Constitution as a professor of political science, and in my own experience of having read election-related jurisprudence when I participated in an election petition to cancel the CoC of a presidential candidate in 2016. And in my non-lawyer mind, I believe that Marcos did not commit material misrepresentation in his CoC about his qualifications, as enumerated in the 1987 Constitution. If at all, what should have been filed was a petition to disqualify him which should have been governed by Section 79, and for which the ground would have been his prior conviction in a tax-related case.