S1E60 – Again I predict BBM will NOT be disqualified

For the second time, I will go out on a limb again and say, NO they will not disqualify BongBong Marcos—not even in the three remaining disqualification cases pending before the First and Second Divisions of COMELEC.

The first case for “cancellation of certificate of candidacy” had been dismissed by the First Division. It ruled that when Bongbong Marcos checked the tickboxes to answer “NO” to the questions “had he been convicted of a crime involving moral turpitude,” and “had he been convicted of any offense where the imposable penalty was imprisonment of more than 18 months”—which would have carried with it the accessory penalty of perpetual disqualification from public office—he was not guilty of material misrepresentation.

As a “consuelo de bobo” the COMELEC agreed that, yes, those are material facts affecting the fitness of a candidate to seek elective office. But, NO, the COMELEC said failure to file an income tax return is not moral turpitude.

I say that is a tightrope walk.

It is not moral turpitude if you have actually paid your income tax—and if you’re a salaried worker in this country, how can you not? Ten percent of your basic salary is automatically deducted by your employer and remitted to the BIR as taxes withheld on income at source. So maybe you were too busy on April 15, or just “forgot” to file your ITR. Even if you had, chances are you wouldn’t have had to pay anything anyway because withholding taxes are so computed that they exactly equal what you should pay.

But it IS moral turpitude if you are receiving compensation, or increased your wealth, from sources not covered by the pre-deduction procedures involved in withholding taxes. Like, when you are a self-employed businessman. I don’t know how they alleged Bongbong was making his money, so I can’t say if he cheated or not. But even the BIR cannot go digging around your past beyond five years back from the current assessment year. We’re talking of tax liabilities circa 1982 to 1984 here so—come on—that’s a bridge too far even for the most bitter critics of the Marcoses. Which happens to include me.

The remaining “direct disqualification” cases—that first one was anchored on mere technicality of form—are not anchored on misrepresentation but outright lack of fitness for the office of the President.

If you are for Leni, you will hate me for saying this, but Bongbong IS qualified to be President of the Philippines. So these disqualification cases are meant to test if he checks both wings of the glider—that phrase that one “must possess all of the qualifications, AND NONE OF THE DISQUALIFICATIONS” for the position. If he does, he can fly.

Annoyingly (for both camps) these remaining cases just happen to also rely heavily on Bongbong’s conviction for tax evasion. Again, there’s a lot of play room in drawing the distinction on two issues: (1) was he “convicted” or not? (2) did he not pay his taxes, or did he just not declare his income?

He was, in fact, convicted, by a Quezon City court. But the hair to be split here is, whether that conviction is already “final.” As long as there is a pending appeal—which Bongbong claims there is, and his opponents insist there is none (he struck a compromise)—there would ostensibly be no “finality” of the conviction yet.

We’re not talking here of whether he was convicted in a “final judgment”—of course, he was. You can NEVER be convicted by an interlocutory order. So the question, “was his conviction by final judgment already final” is really NOT ridiculous. The first “final” refers to the end-stage of the trial, and the second “final” talks about whether no more remedies remain to overturn that conviction.

Every bone in my body wishes that Bongbong be disqualified. But every ounce of honesty in me says he will NOT—and if I really struggle hard enough to set aside my bias, I can even bring myself to say he should not. If we are to REALLY be a nation of laws and not of men, then the same law that protects the saint must also protect the sinner. Or to bring it closer to the kitchen, what is good for the goose is sauce for the gander.

On the other hand, if Bongbong is NOT disqualified, that is the best guarantee we can have that if Leni wins, the legitimacy of her administration would be Teflon-covered from any mud that the loser would hurl. She would have won fair and square—like she did when she beat Bongbong in 2016. Mind you, even the decision on the electoral protests in that lopsided Leni victory is still NOT final to this day.

Bongbong’s camp are wasting their breath pointing out that he had been allowed to run—and won—as Congressman, Senator even Vice-president in the past, so how can he be disqualified NOW?

That is not relevant, under the so-called “Doctrine of Operative Fact” which is a fancy lawyer’s way of saying you cannot force toothpaste back into the tube. Maria Lourdes Sereno was Chief Justice from 2012 to 2018—that’s six years—before she was “not impeached” out of office. That didn’t mean that after she was removed through quo warranto (a question all law professors still abhor having to explain to law students to this day) by her own colleagues, the decisions which she penned while she was chief magistrate are suddenly all void. No, they all remain good law.

In the same way, Bongbong is NOT safe from disqualification just by virtue of the fact that he had been able to “get away with it” three times over many years. If the gods at the Palacio del Gobernador don’t listen to me (and why should they?) and vote to disqualify him anyway—you know, fairy tales can still happen.*