HAS Estelito Mendoza thrown his client, presidential aspirant Ferdinand Marcos Jr. (BBM), under the bus?
The ongoing legal intramurals between petitioners who want to disqualify or cancel the former senator’s certificate of candidacy (CoC) and BBM’s battery of lawyers, led by Mendoza, is an excellent case study for the legal community.
Mendoza’s latest legal argument has virtually admitted that BBM did wrong, but “he cannot be faulted for actions which may have been wrong.” In a final position paper, Marcos Jr. through Mendoza told the Commission on Elections (Comelec) “that if legal luminaries can’t agree about how laws apply to him as a prospective candidate, then he cannot be faulted for actions which may have been wrong.” Mendoza was the Solicitor General during the Martial Law regime of deposed dictator Ferdinand Marcos Sr.
In a 54-page memorandum he submitted to the Comelec on December 20, Mendoza cited the conflicting opinions of retired Supreme Court (SC) Justice Antonio Carpio and former justice secretary Alberto Agra: “When even the pillars of the legal community cannot agree on the matter, BBM, as a layman, cannot be faulted if his interpretation of a difficult question of law [turns] out to be erroneous…. Certainly, an error in the interpretation of a difficult question of law cannot and should not be equated to a deliberate and malicious intent to misrepresent a material fact.”
Mendoza’s latest action is the culmination of the hearing period, which ticks the time of the poll body to decide this first of the remaining six petitions against Marcos Jr.’s candidacy.
The flipside of this argument, according to my economist-lawyer friend, is at most disingenuous. The nature of the legal process is to resolve conflicting legal issues. Whether legal luminaries disagree on a certain case is beside the point. They often disagree about many things. This is why cases are filed, and courts and other regulatory bodies decide which side is correct—with the ultimate and final arbiter being the Supreme Court. If lawyers and experts never disagreed, then there would be no need for the courts because everyone would, by consequence, agree. Marcos Jr. only has to read a basic document called the Constitution of the Philippines, which clearly states: the power of the judiciary under Article VIII, section 1, is “to settle actual controversies.” What then, is a disagreement between “legal luminaries” if not a controversy over how a law is to be interpreted or applied? Now, once a court has decided that one side of an argument is correct, then the other side must bear the consequences. The exact Latin phrase used by lawyers is “ignorantia legis neminem excusat,” which means “ignorance of the law excuses no one.” For instance, if I owned a business and were to claim a tax deduction on the advice of my lawyer, and the Bureau of Internal Revenue says I cannot do so, that is called a “disagreement” on the interpretation of the law. If the court rules in favor of the BIR, then I have to pay additional taxes. The nature of the judicial power is to resolve controversies involving the application of the law, and no one is excused from its consequences. That is, of course, if the offending party believes that they are above the law, a concept that the Marcos family may be most familiar with.
Has Mendoza thrown BBM under the bus? Obviously not! I believe that Mendoza has not presented a legal argument, but a political statement. His tack is more of a persuasive one targeting public perception, in order to paint his client as a victim of the legal system. Hopefully, the Comelec does not fall into this trap. It’s lamentable how public discourse in the age of social media has been pushed down the gutter so many times. Just look at that video of senatorial candidate and Marcos loyalist Larry Gadon cursing journalist Raissa Robles for writing about BBM’s disqualification case.
Given this scenario, lawyer and 1Sambayan convenor Howard Calleja appealed to the people to stay focused on the flurry of petitions, which seek two things: the cancellation of BBM’s CoC, and second, his disqualification for not paying taxes.
The petitions for the CoC cancellation are lodged before the Comelec’s first division, chaired by Commissioner Antonio Kho, Jr., while the petitions calling for BBM’s disqualification are with the second division, chaired by Commissioner Rowena Guanzon.
It was alleged that BBM’s CoC contains material misrepresentation for his failure to disclose that he was convicted in 1997 by the Court of Appeals (CA) for tax evasion, covering the period 1982-1985, and that he was asked to pay the deficiency taxes and their surcharges. This CA decision has made him ineligible to hold any public office, petitioners assert. [Note: BBM’s lawyer and chief of staff recently showed a certification showing he had paid such taxes and surcharges as required by the court, albeit in a different venue].
Petitions to cancel his CoC are based on this alleged failure to disclose his conviction of tax evasion.
Earlier, Artemio Panganiban, a retired SC chief justice, aptly raised two issues to oust BBM from the 2022 presidential race. The first: whether BBM committed false material representations in his CoC. The second issue is whether his CA conviction involves moral turpitude.
Mendoza, in his seven-page answer to the Comelec, said the petitions either to cancel his CoC or disqualify him did not have specific allegations of false material representation. He asserted that BBM is qualified to become president, as the CA did not convict him of a crime of moral turpitude because the Comelec allowed him to run for senator in 1995 and vice president in 2016.
Calleja said the petitioners expect the Comelec to come out with their decisions either before or shortly after Christmas. He insisted that tax evasion is a crime of moral turpitude under the existing law. Comelec, he said, should acknowledge that BBM’s tax evasion issue has been decided with finality by the court.
Mendoza’s answers to the petitions show that his client does not deny his wrongdoing, but that legal luminaries disagree about any misrepresentation that BBM has committed.
What is basic here is that someone who does a crime should be held liable for it.
For comments and suggestions, e-mail me at mvala.v@gmail.com