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The Manila Times : Vengeance is when martial law victims use a martial law edict against a Marcos

News & Interviews
2 December 2021

By Antonio Contreras | The Manila Times

SECTION 286 of Presidential Decree 1994, or the "Amended National Internal Revenue Code" (NIRC), imposes the penalty of perpetual disqualification from holding public office and ineligibility to vote on a public officer who is proven guilty of a tax-related case, even if it is the mere non-filing of income tax returns (ITRs). Considering that taxes of public officers are already withheld, then the failure amounts not to tax evasion, but to the failure to execute a clerical task of signing and filing a form already prepared by their finance offices. In this context, one can indeed surmise that in relation to the non-filing of ITRs, the penalty of denying any public official found guilty of this offense the right not only to run for any public office, but even to vote, is a form of excessive punishment that would deny a person the exercise of an important civil and political right.

This provision is now what is at the center of the several petitions filed by martial law victims, and other human rights victims, against former senator and now presidential candidate Ferdinand "Bongbong" Marcos Jr. They seek to either cancel and deny due course to his certificate of candidacy (CoC) using Section 78 of Batas Pambansa (BP) 881 or the Omnibus Election Code (OEC), or to disqualify him. They argue that because of his conviction for a tax-related offense, he should suffer the penalty of perpetual disqualification from holding public office, which implies that Marcos Jr. cannot run for any elective position.

The Supreme Court has already ruled that non-filing of a tax return is not a crime involving moral turpitude. The Court of Appeals (CA), in its final judgment on Marcos Jr.'s tax case, did not impose the penalty of imprisonment. It can also be argued that penalties should be explicitly spelled out in any ruling of the court. This goes to the right to be informed. And granting that perpetual disqualification was an available penalty, it was not spelled out by the CA when Marcos Jr. was found liable for non-filing of ITRs.

The other issues that can be raised are whether the Commission on Elections has the authority to amend or reverse the CA ruling, whether the high court can even impose a new penalty on BBM beyond what was issued by the CA, and whether this will not violate the double jeopardy provision of the Constitution.

But what is more egregious is the fact that failure to file an ITR, even just once, and even if taxes were already withheld, is punished severely in PD 1994, a Marcosian decree, with dismissal from public office and perpetual disqualification from any election and ineligibility to vote. During ordinary times, these martial law victims would criticize this as excessive and abusive, and disproportional to the offense. It was a decree issued by Marcos Sr. at a time when there was already a sitting legislative body, the Batasang Pambansa, and thus is an embodiment of Marcos' dictatorial retention of lawmaking powers despite the presence of a legislature.

Furthermore, in insisting that the penalty of perpetual disqualification be reinstated as an accessory penalty on Marcos Jr., which is the core of the petitions filed by these human rights groups, they are ignoring the fact that such penalty was not stipulated by the CA in its decision on the case when it was appealed. The CA acquitted Marcos Jr. of the tax evasion charges, but found him guilty of failure to file his ITRs, for which only the penalty of a fine was imposed. It is standard practice in the judiciary that the penalties imposed should be clearly and completely stipulated in any decision, and only those that are enumerated can be legally imposed. While perpetual disqualification is an available accessory penalty, the fact that it was not stipulated in a decision by a competent court means that it cannot be imposed. To do otherwise would violate the rights of Marcos Jr.

It is therefore odd that the petitioners against Marcos, who brand themselves as fighters for human rights, should now be pushing not only for the imposition of an excessive penalty of denying him his civil and political right of participating in the electoral process. They also would like to go beyond what was ruled by the CA, and therefore again deny Marcos his right to be penalized in accordance with what was mentioned in the final judgment of the CA.

I have said it before. While one can fault Marcos Jr. for not filing his ITRs, as I do, one should not use it to cancel or deny due course to his CoC, or to disqualify him from running for president in the 2022 elections. This is because the provisions backing such a move is not only legally problematic, but amounts to an excessive penalty, and would exceed what was imposed on him by the court that adjudicated his case. I may not vote for Bongbong, but I will not deny him the right to run, and would not deny others their right to vote for him.

We cannot countenance the spectacle of a group, which would normally protest against a violation of human rights, including the enjoyment of civil and political rights which include the right to suffrage and the right to run for public office, to use the very same instrument of a regime that failed to safeguard the protection of such rights, and for which they were victims, just because it will be against the son of its chief architect. It is the height of contradiction for a human rights group to fight for what they perceive as justice by rendering injustice.

That is not justice. That is vengeance.

The best justice is to defeat Marcos Jr. using the ballot, and not to turn him into a victim of a violation of a right.