G.R. No. 260374 - Separate Concurring Opinion

G.R. No. 260374 / 260426, June 28, 2022,
♦ Decision, Zalameda, [J]
♦ Separate Concurring Opinion, Leonen, [J]
♦ Separate Opinion, Caguioa, [J]
♦ Concurrence Opinion, Lazaro-Javier, [J]
♦ Separate Concurring Opinion, M. Lopez, [J]
♦ Concurring Opinion, Gaerlan, [J]
♦ Separate Concurring Opinion, J. Lopez, [J]
♦ Separate Concurring Opinion, Dimaampao, [J]
♦ Concurring Opinion, Singh, [J]

FR. CHRISTIAN B. BUENAFE, FIDES M. LIM, MA. EDELIZA P. HERNANDEZ, CELIA LAGMAN SEVILLA, ROLAND C. VIBAL, AND JOSEPHINE LASCANO, PETITIONERS, VS. COMMISSION ON ELECTIONS, FERDINAND ROMUALDEZ MARCOS, JR., THE SENATE OF THE PHILIPPINES, REPRESENTED BY THE SENATE PRESIDENT, THE HOUSE OF REPRESENTATIVES, REPRESENTED BY THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, RESPONDENTS.

BONIFACIO PARABUAC ILAGAN, SATURNINO CUNANAN OCAMPO, MARIA CAROLINA PAGADUAN ARAULLO, TRINIDAD GERILLA REPUNO, JOANNA KINTANAR CARIÑO, ELISA TITA PEREZ LUBI, LIZA LARGOZA MAZA, DANILO MALLARI DELA FUENTE, CARMENCITA MENDOZA FLORENTINO, DOROTEO CUBACUB ABAYA, JR., ERLINDA NABLE SENTURIAS, SR. ARABELLA CAMMAGAY BALINGAO, SR. CHERRY M. IBARDOLAZA, CSSJB, SR. SUSAN SANTOS ESMILE, SFIC, HOMAR RUBERT ROCA DISTAJO, POLYNNE ESPINEDA DIRA, JAMES CARWYN CANDILA, AND JONAS ANGELO LOPENA ABADILLA, PETITIONERS, VS. COMMISSION ON ELECTIONS, FERDINAND ROMUALDEZ MARCOS, JR., THE SENATE OF THE PHILIPPINES, REPRESENTED BY THE SENATE PRESIDENT, THE HOUSE OF REPRESENTATIVES, REPRESENTED BY THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, RESPONDENTS.

I concur that the Petitions for Certiorari, assailing the Commission on Elections (COMELEC) Resolutions, should be dismissed. I submit this opinion to emphasize that the remedies of a petition for disqualification and a petition for cancellation of Certificate of Candidacy (CoC) should not be interchanged. While some grounds invoked in these remedies may overlap, such as residency or citizenship, the nature of the remedy is different and determines the filing period and legal consequences. The choice on which remedy to pursue rests with the petitioner.

Respondent Ferdinand Marcos, Jr. (Marcos, Jr.) was a public officer from the taxable years 1982 to 1985. He was elected as the Vice-Governor and later as Governor of Ilocos Norte from 1982 until he was forced into exile in February 1986 following the EDSA Revolution.1 Marcos, Jr. failed to file his income tax returns for these taxable years. In 1995, the Regional Trial Court (RTC) of Quezon City found Marcos, Jr. guilty of violating the National Internal Revenue Code (NIRC) of 1977, as amended, imposed penalties of imprisonment and fines, and ordered him to pay the taxes due to the Bureau of Internal Revenue. The RTC found that Marcos, Jr. failed to pay his income taxes and file his income tax returns for the taxable years of 1982 to 1985. The imposed period of imprisonment was for more than eighteen (18) months.2

Upon review of the RTC Decision, the Court of Appeals (CA) acquitted Marcos, Jr. from charges involving non-payment of deficiency taxes. The CA also modified the imposed penalties for non-filing of income tax returns. It removed the penalty of imprisonment but retained the imposition of fines:

The CA Decision became final and executory,4 and an entry of judgment was entered on November 10, 1997.5 Two decades later, Marcos, Jr. filed his CoC for president with the COMELEC during the filing period (October 1 to 8, 2021).6 He represented that he was eligible for the office of the president.7 He also represented that he was not found liable for an offense with the accessory penalty of perpetual disqualification to hold public office.8

On November 2, 2021, petitioners Fr. Christian B. Buenafe et al. (Buenafe) filed a petition to cancel the CoC of Marcos, Jr. under Section 78 in relation to Section 74 of the Omnibus Election Code9 (OEC).10 They argued that Marcos, Jr.'s prior conviction carries the accessory penalty of perpetual disqualification from holding any office, voting, and participating in any election.11 Thus, Marcos, Jr. committed a false material representation when he stated that he was eligible to run for president.12 The case was docketed as SPA No. 21-256 (DC).13

On November 20, 2021, another petition was filed against Marcos, Jr. with the COMELEC.14 Petitioners Bonifacio Parabuac Ilagan et al. (Ilagan) filed a petition for disqualification under Section 12 of the OEC. They also argued that Marcos, Jr. committed false material. representation in his CoC that he has not been found liable for an offense that carries the accessory penalty of perpetual disqualification to hold public office.15 This argument stems from their claim that the CA Decision is invalid because the penalty of perpetual disqualification to hold office should have been imposed. After all, Marcos, Jr. was a public officer when he violated the 1977 NIRC. The case was docketed as SPA No. 21-212 (DC).

The COMELEC dismissed both petitions. Aggrieved, Buenafe and Ilagan come before this Court and insist that Marcos, Jr.'s CoC should have been cancelled disqualified. Buenafe's petition was docketed as G.R. No. 260374, while Ilagan's petition was docketed as G.R. No. 260426.

A criminal conviction may give rise to separate grounds preventing convicts from pursuing their candidacies for public office. If the conviction carries a penalty for the imprisonment of more than eighteen (18) months or if the crime involves moral turpitude, then the convict may be disqualified to run for public office under Section 12 of the OEC. If the conviction carries with it a penalty of perpetual disqualification to hold public office, then the convict's CoC may be cancelled under Section 78 of the OEC following the case of Jalosjos, Jr. v. COMELEC.16 The petitioner may choose which remedy to avail.

In Miranda v. Abaya,17 the Court enumerated the following circumstances to describe the nature of the CoC filed and related them to the existing remedies under the OEC:

In the first circumstance, a petition for disqualification under Section 68 of the OEC may be availed. The second circumstance may be challenged via a petition to cancel the CoC of a candidate under Section 78 in relation to Section 74 of the OEC. The third circumstance may be challenged by a petition to declare a candidate as a nuisance under Section 69 of the OEC.19

Section 78 of the OEC provides that a petition filed under this section should be limited to material representations as required under Section 74 of the OEC:

In Fermin v. Comelec,20 the Court held that a petition under Section 78 of the OEC must refer to the constitutional and statutory provisions on qualifications or eligibility for public offices, such as age, citizenship, and residency requirements. Fermin also cautioned against interchanging or confusing "Section 68" and "Section 78" petitions because they are "different remedies, based on different grounds, and resulting in different eventualities." One key difference is the filing period. A petition under Section 78 must be filed within twenty-five (25) days of the COC filing. Otherwise, it is time-barred without prejudice to file a quo warranto, if proper.

In Fermin, the Court had to determine whether a petition questioning the one-year residency of the mayoralty candidate was for disqualification or cancellation of CoC under Section 78 because the petition was filed beyond twenty-five (25) days after the CoC was filed. The Court had to make sure that the residency requirement does not pertain to any grounds for disqualification under the OEC or the Local Government Code:

While Section 78 of the OEC mentioned that the petition for cancellation must be anchored "exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false," the Court in Jalosjos, Jr. v. COMELEC21 may have unwittingly expanded the grounds that may be invoked under a "Section 78" petition by defining what "eligible" means:

By equating eligibility to the "right to run for public office" without any restrictions, Sections 12 and 68 of the OEC and Section 40 of the Local Government Code for local elective officials may as well be considered proper grounds for a "Section 78" petition. As worded, these law provisions prevent a candidate from pursuing their candidacies:

Surely, the OEC did not intend to provide different provisions for petitions for disqualification and cancellation of CoC if it only means the same thing. Thus, I express my reservation on the ponencia's observation that "[w]hile the grounds for a petition for disqualification are limited to Sections 12 and 68 of the OEC, and for local elective officials, Section 40 of the LGC, the same grounds may be invoked in a petition to deny due course to or cancel COC if these invoke the representations required under Section 78."22

I submit that Jalosjos, Jr. v COMELEC23 should be revisited to reflect the distinctions between a petition for disqualification and a petition for cancellation of CoC. In his Separate Opinion in Talaga v. COMELEC,24 Supreme Court Justice Arturo Brion provided an analysis by which eligibility requirements and disqualification are reconciled. This analysis supports the earlier pronouncements in Fermin that Section 78 of the OEC should refer to the constitutional and statutory provisions on qualifications such as age, citizenship, and residence:

Nonetheless, there are grounds for a petition for disqualification, which may overlap with a Petition for Cancellation of CoC. The case of Chua v. COMELEC25 cited in the ponencia recognized these overlapping grounds. In Chua, a candidate for councilor was allegedly a permanent resident of a foreign country. The candidate's permanent residency issue may fall under Section 6826 of the OEC or Section 40 (f) of the Local Government Code27, which are proper for a petition for disqualification. The residency issue may also be considered a ground to cancel the CoC of a candidate because it relates to the statutory provisions on qualifications or eligibility for public office28 under Section 39 of the Local Government Code.29 Incidentally, Section 74 of the OEC also requires that the candidate state under oath that they are not a permanent resident of a foreign country. Thus, Chua correctly held that the petitioner might choose the remedy of either a petition for disqualification or a petition for cancellation of CoC. At any rate, the proper characterization of the petitions filed with the COMELEC is not material in this case because the COMELEC resolved the petitions on the merits and the legal consequences of disqualifying or cancelling the CoC of Marcos, Jr. are immaterial. Also, the Buenafe petition asserting false material representation was filed on time, while the Ilagan petition for disqualification under Section 12 of the OEC was likewise timely filed.

Section 12 of the OEC30 is inapplicable to Marcos) Jr. It provides that a person sentenced by final judgment to a penalty of eighteen (18) months or for a crime involving moral turpitude is disqualified from being a candidate and holding any office. The second paragraph of the same section also provides that the disqualification to be a candidate shall be removed "after the expiration of five (5) years from his service of sentence." Here, the petitioners failed to show that Marcos, Jr. was sentenced to suffer imprisonment. The CA Decision modified the trial court's decision and removed the penalties of imprisonment.

The petitioners' argument that the CA Decision is void because the penalty of imprisonment was deleted fails to persuade. As pointed out in the ponencia, the penalty of imprisonment and fine was only introduced in 199831 or years after Marcos, Jr. was supposed to file his income tax returns. The amendment cannot be given retroactive effect because it is not favorable to the accused.32 When Marcos, Jr. failed to file his income tax returns, the penalty of only a fine satisfied the provisions of the 1977 NIRC. Thus, the Court of Appeals may exercise discretion in imposing the penalty of imprisonment, a fine, or both. Here, the CA imposed penalties that were within the prescribed range.

Further, the circumstances surrounding Marcos, Jr.'s non-filing of income tax returns negate a finding that he committed a crime involving moral turpitude because there no fraudulent intent. As aptly observed by the ponencia and pointed out by Justice Japar Dimaampao, Marcos Jr. was a provincial government employee during the taxable years of 1982 to 1985. The provincial government was duty-bound to withhold the corresponding taxes from Marcos, Jr.'s income.33 Thus, Marcos, Jr.'s failure to file his income tax returns was not animated by wilfulness to defeat or circumvent the tax law to illegally reduce his tax liability.34 The frequency of non-filing of income tax returns is immaterial because Marcos, Jr.'s correct taxes should have already been properly withheld. Curiously, in Republic of the Philippines v. Marcos II,35 the Court has already held that the crime of failure to file an income tax return is not a crime involving moral turpitude because fraudulent intent is not an element of the crime.

Considering that Marcos, Jr. was not sentenced to imprisonment and his conviction does not involve moral turpitude, Section 12 of the OEC is not applicable. Whether Marcos, Jr. paid the fine or the deficiency taxes is immaterial because it is not a ground for disqualification. It becomes material only if Marcos, Jr.'s conviction involves moral turpitude or imprisonment of more than 18 months because the ground for disqualification under Section 12 ceases after five (5) years from service of the sentence. The payment of the fine would be equated to the service of the sentence. It serves as the reckoning point for counting the five (5) years.36

I also agree with the ponencia that Marcos, Jr. is not suffering from "perpetual disqualification from holding any office, to vote and to participate in any election" because it was not imposed. However, I submit that there was no error in sentencing. Section 40 of Presidential Decree No. 1994 (1977 NIRC, as amended),37 amending the 1977 NIRC, provides the guidelines on how penalties are imposed, who is liable, and additional penalties to be imposed depending the circumstances of the violator. The succeeding sections provide the prescribed penalties depending on the provisions violated:

Here, Section 286 (c) is not applicable. Thus, the CA is not required to impose the maximum penalty of a fine of fifty thousand pesos, imprisonment of five (5) years, or both, as provided under Section 288. The additional penalties of dismissal from “public service and perpetually disqualified from holding any public office, to vote and to participate in any election" could not be imposed. First, the amendment to the 1977 NIRC introducing the provision under Section 286 (c) became effective only in January 1986. Thus, the nonfiling of income tax returns for the taxable years of 1982 to 1984 will not merit the additional penalty of "perpetual disqualification from holding any public office, to vote and to participate in any election" applicable to public officers. Section 73 of Presidential Decree No. 115838 (1977 NIRC) is applicable for these taxable years, which only prescribes the penalty of a "fine of not more than two thousand pesos or imprisonment for not more than six months, or both." Second, the COMELEC Second Division made a factual finding that Marcos, Jr. was no longer a public officer when the deadline to file the income returns for the taxable year of 1985 lapsed.39 Although the income tax return pertains to the taxable year of 1985, when he was still a public officer, Marcos, Jr. was no longer a public officer when he omitted to file his income tax return. The reckoning point must be when Section 45 of the 1977 NIRC, as amended, was violated — "the fifteenth day of March of each year, covering income of the preceding taxable year"40 or on March 1986. Thus, the CA's imposition of a fine of ₱30,000.00 follows Section 288 of the 1977 NIRC, as amended. The imposed penalty was within the prescribed range. Even assuming that Marcos, Jr. was still a public officer then, the CA merely committed an error in sentencing, which is not enough to invalidate the CA Decision. I join Justice Alfredo Benjamin Caguioa in that the error cannot be considered grave, which would amount to a lack of jurisdiction because the imposed penalty was still within the range of penalty of Section 288 of the 1977 NIRC, as amended.41

Accordingly, Marcos, Jr.'s CoC should not be cancelled. The representations in his certificate of candidacy that he is eligible for the office of the president and that he was not found liable for the accessory penalty of perpetual disqualification to hold public office are hot false. It follows that there is no intention to deceive the electorates of his eligibility. Marcos, Jr. is also not disqualified from running for president in the 2022 national and local elections. The petitioners failed to establish that Section 12 of the OEC is applicable. Utmost, the petitioners' causes of action are dependent on a strained interpretation that the CA Decision is void and how the CA should have exercised its discretion in sentencing Marcos, Jr. As discussed above, the petitioners are mistaken.