Sunday, December 6, 2015

No intention, no misrepresentation

No intention, 
no misrepresentation



In relation to the act of the Commission on Elections (Comelec) Commissioners Al Pareño, Arthur Lim and Sheriff Abas of disqualifying Senator Grace Poe to run for President because "she lied" in stating her correct period of residency in her certificate of candidacy (COC), the author posted the Petition he wrote before the Comelec and which this blogger eventually won for his client.

This also involves "misrepresentation" because the client of the blogger wrote a wrong residence address in the COC.  In the case of Poe, she allegedly wrote a wrong length of time as to residency in the Philippines.

If you wish to read, the petition for recommendation for pardon is hereby posted:

xxxxxxxxxxxxxxxxxxxxxxxxxxx


Republic of the Philippines
Commission on Elections
General Luna St. corner Andres Soriano St., Manila

En Banc

IN RE: PETITION OF TEODULO R. LORCA JR.
FOR RECOMMENDATION OF PARDON TO
THE PRESIDENT OF THE PHILIPPINES
                                                                                                    Case No. ____________

TEODULO R. LORCA JR.,
                                                          Petitioner.
x----------------------------------------------------x


Petition for Recommendation for Pardon



              The petitioner, TEODULO R. LORCA JR., a sickly sixty-six-year-old senior citizen, by the undersigned counsel, respectfully petitions the Commission on Elections (Comelec) for the RECOMMENDATION FOR PARDON for him to be eligible for pardon by the President of the Philippines.

              This petition for the Comelec En Banc to Recommend the Pardon of Mr. Teodulo R. Lorca Jr. is grounded on:

1.      The election offense for which he was found guilty is NOT AN OFFENSE AS DEFINED by the Supreme Court in Arsenia B. Garcia vs. Honorable Court of Appeals and the People of the Philippines, G.R. No. 157171, March 14, 2006;

2.      The petitioner was found by the Regional Trial Court of Pasay City, Branch 109, guilty of that election offense in 1998 and that verdict was affirmed by the Court of Appeals before the Supreme Court issued the same Arsenia B. Garcia case decision, but the same affirmation by the Court of Appeals became final and executory due to the UNTIMELY DEATH OF HIS COUNSEL and this is revolting to the interest of justice;

3.      The RTC of Pasay, highly recommended that the petitioner be pardoned as stated in the dispositive portion of the RTC decision;

4.      The Comelec has the exclusive power to recommend pardon for election offenses and the President cannot give clemency without that recommendation as commanded by the Constitution;

5.      The disqualification case filed against the petitioner was dismissed by the Comelec although the same facts in the same disqualification case are the same facts used in convicting him for the said “election offense”;

6.      There is a compelling interest of justice to save the petitioner from getting imprisoned for an offense already declared by the Supreme Court as not an offense due to the absence of bad faith;

7.      Given the fact that the election offense conviction became final, the only option left to save the petitioner from clearly and manifestly unjust imprisonment is pardon, which cannot be granted by the President of the Philippines without the recommendation from the Comelec.

8.      The 66-year-old sickly petitioner needs his doctor’s continuing close-supervision for ongoing and continuing treatment, because his illness and his age make his health too fragile and too precarious, which close supervision cannot be had if the petitioner is placed inside the National Bilibid Prisons.


The Discussions

The offense for which the petitioner was
convicted is no longer an election offense


              Let the Comelec En Banc be informed that the petitioner was convicted because he committed the mistake of typewriting a fact of his residential address on his Certificate of Candidacy he filed in 1995 for the position of councilor in Pasay City.

              What was typewritten as his residence was “130-A 7th St., FB Harrison, Pasay City.”

              What was his residence at that time was “130 7th St., FB Harrison, Pasay City.”

              The RTC of Pasay, Branch 109, declared petitioner Teodulo R. Lorca Jr. guilty upon the justification that election offenses under the Omnibus Election Code were treated as special laws and that good faith was not a defense.

              On appeal, the Court of Appeals affirmed the guilty verdict upon the same reason.  Justice Japar B. Dimaampao justified that because election offenses are mala prohibita, he had to affirm the guilty verdict.  That was so although the Justice Dimaampao expressed sympathy that the “misrepresentation was more fictional than real.”  But that Justice Dimaampao expressed that he could not do otherwise but convict the petitioner.

              Justice Dimaampao rendered the CA decision on February 22, 2005.

On March 14, 2006, the Supreme Court promulgated the Arsenia B. Garcia case and the Highest Court declared election offenses are not mala prohibita because allowing it be so just because these are special penal laws will punish honest mistakes.

In the case of petitioner Teodulo R. Lorca Jr., it was very clear that the mistake of typewriting “130-A 7th St.” was merely an honest mistake.

It was a clear honest mistake, tacitly recognized to be so by the RTC of Pasay and the Court of Appeals as gleaned from their decisions.

In so recognizing, the RTC of Pasay event went to the extent of recommending pardon for the petitioner.  The CA on its part, through the ponente, stated that the law may be harsh but it is the law and it had to affirm the RTC ruling.

There can be no possible motive for the mistake.  First, both “130-A 7th St.” and “130 7th St.” were—and still are—found in the same councilor district of Pasay City.  So that it does not matter what address was written on the Certificate of Candidacy because it did not add any enhancement or gain to the petitioner to obtain qualification to run for councilor of the same district of Pasay.  Second, there is no any other gain hat can be imagined to redound to the petitioner just because of that mistake.

It being clear that the mistake had no motive, the only reasonable conclusion is that it was an honest mistake that cannot be punished if it were to apply the decision of the Supreme Court in Arsenia B. Garcia case.

In the case of Arsenia B. Garcia vs. Honorable Court of Appeals and the People of the Philippines, G.R. No. 157171, March 14, 2006, the Supreme Court ruled:

              Respondent on the other hand contends that good faith is not a defense in the violation of an election law, which falls under the class of mala prohibita.

The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646, classified under mala in se or mala prohibita?  Could good faith and lack of criminal intent be valid defenses?

Generally, mala in se felonies are defined and penalized in the Revised Penal Code.   When the acts complained of are inherently immoral, they are deemed mala in se, even if they are punished by a special law.  Accordingly, criminal intent must be clearly established with the other elements of the crime; otherwise, no crime is committed.   On the other hand, in crimes that are mala prohibita, the criminal acts are not inherently immoral but become punishable only because the law says they are forbidden.   With these crimes, the sole issue is whether the law has been violated.   Criminal intent is not necessary where the acts are prohibited for reasons of public policy.

Section 27(b) of Republic Act No. 6646 provides:

SEC. 27. Election Offenses.- In addition to the prohibited acts and election offenses enumerated in Sections 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an election offense:

x x x

(b)     Any member of the board of election inspectors or board of canvassers who tampers, increases, or decreases the votes received by a candidate in any election or any member of the board who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered votes.

x x x

Clearly, the acts prohibited in Section 27(b) are mala in se. For otherwise, even errors and mistakes committed due to overwork and fatigue would be punishable.   Given the volume of votes to be counted and canvassed within a limited amount of time, errors and miscalculations are bound to happen.   And it could not be the intent of the law to punish unintentional election canvass errors.  However, intentionally increasing or decreasing the number of votes received by a candidate is inherently immoral, since it is done with malice and intent to injure another.


              Ergo, the mistake for which the petitioner was convicted under Section 74 in relation to Section 262 of the Omnibus Election Code is no longer an offense.


Untimely death of the counsel caused finality
of the guilty verdict: REVOLTING TO JUSTICE


              Atty. Abraham A. Mantilla, the counsel of the petitioner, filed the appellant’s brief.   However, the petitioner his lawyer died and this fact was not known to the petitioner.

              So that the copy of the decision of the Court of Appeals intended for the lawyer was “returned to sender” on the reason that the addressee was “deceased,” as written at the envelope that forms part of the records of the Court of Appeals.  The same envelope was postdated “FEB. 24 2005” and the Registry Receipt No. is “1719E.”  To prove this fact, a copy of the same enveloped copied from the Court is attached hereto as ANNEX “A.”

              Thereafter, the Court of Appeals sent to the petitioner an envelope containing a copy of the Decision.  The same was not received by the addressee, this time the petitioner.  The same envelope was sent back to the Court of Appeals with notations “RTS MOVED 3/18//05.”  In the post office parlance, RTS means “return to sender.”  A copy of the envelope that was attempted to be sent to the petitioner is attached hereto as ANNEX “B.”

              From the time the appellant’s brief was filed, the petitioner no longer can be found in his old address, 1745 Cuyegkeng St., Pasay City. But the same envelope was sent to the same 1745 Cuyegkeng St.  That is despite the fact that the key issue in this case is the address “130-A 7th St., FB Harrison, Pasay City” or “130 7th St., FB Harrison, Pasay City.  The Court of Appeals could have sent the envelope containing the decision to 130 7th St., FB Harrison, Pasay City.

By the facts that the two envelopes were returned to the Court of Appeals, the Court resorted to Section 8 of Rule 13 to declare that the service of the copy of the decisions was complete upon the service of a copy of the same decision upon the Clerk of Court.
             
              This is revolting.

              This is so because the same section is invoked only for Civil Cases.  The fact that it is under the Rules of Civil Procedure means it cannot apply to notices with respect to criminal proceedings that are under the Rules of Revised Criminal Procedure.

              But the hard and fast fact now is that the Court of Appeals has already issued a resolution declaring the Entry of Judgment for the said decision.

              This declaration of the Entry of Judgment of is of course revolting.

              It is revolting because Section 8 must not be applied when what is at stake is LIBERTY THAT IS AN INALIENABLE RIGHT.  Liberty is priceless.  No amount of money can out match liberty.  It takes proof beyond reasonable doubt to sacrifice this right as defined by the Constitution. 

But in this case, even though that hard and brutal fact is that the petitioner did not receive any copy of the decision, his liberty has been seized.   Is this not revolting?  Just because of the death of his lawyer he is now suffering?  Actually, a simple act of filing of a motion for reconsideration could have saved the day for the petitioner. 

It is more revolting if it is to be thought about that IN TRUTH, THE PETITIONER IS INNOCENT.

So that it is revolting to justice by whatever means even if his former lawyer died and he did not know about his lawyer’s death until he was arrested on December 12, 2012.

It is revolting to think when it is known despite his clear innocence, he will be detained at the Criminal Investigation and Detection Group (CIDG) office at the Southern Police District.   And on February 12, 2013, the RTC of Pasay is set to issue an order to commit the petitioner to the National Bilibid Prisons.

              All these can be summed in one word.

              Revolting!

RTC of Pasay recommended pardon

              No less than the court that first convicted the petitioner has recommended that the petitioner be granted pardon.

              To be clear, let the dispositive portion of the RTC decision be quoted:

In view of all the foregoing, the Court finds accused Teodulo Lorca, Jr. guilty beyond reasonable doubt for violation of Sec. 74 in relation to Sec. 262 of the Omnibus Election Code and hereby sentences him to One (1) Year imprisonment without benefit of probation and to suffer disqualification to hold public office and the right to suffrage. Because of the peculiar circumstance of the case, with the charged (sic) for disqualification against accused Teodulo Lorca, Jr. having been dismissed by the Comelec, and the fact that Teodulo Lorca, Jr. has been a good public official executive clemency for the accused Teodulo Lorca, Jr. is hereby recommended. On grounds of reasonable doubt, there being no showing that she had a hand in the preparation of the certificate of candidacy in question, Lourdes Soler is hereby acquitted of the charges.

SO ORDERED.

              The RTC’s first reason for recommending clemency is “the peculiar circumstance of the case.”
             
              The RTC must have referred this phrase to the fact that there was no bad faith on the part of the petitioner but that the trial court had no choice but convict him just the same because of the belief that the election offense was considered as a mala prohibitum.

              Even the Court of Appeals was in agreement.

Thus, Justice Dimaampao acknowledged in his decision that he could not even believe there was misrepresentation just because of this discrepancy.   Thus, Justice Dimaampao wrote:

SECONDLY, the misrepresentation is more fictional than real.  The offense allegedly committed by the Accused-Appellant is for failure to disclose his true residence as required under Section 74 of Omnibus Election Code.  Accused-Appellant allegedly misrepresented his residence in 130-A 7th Street, F.B. Harrison, Pasay City.


              The findings of facts by the RTC of Pasay bear the weight of the presumption. That cannot be altered at this time.  The Comelec must even respect these.   Being findings of facts, it cannot just be disregarded even by the Supreme Court.

              As such, the most prudent act the Comelec should do is to recognize and respect it.  And to give such respect, the Comelec should RECOMMEND PARDON TO THE OFFICE OF THE PRESIDENT.

              A copy of the Decision of the Regional Trial Court of Pasay, Branch 109, is attached hereto as ANNEX “C” series.

              A copy of the Decision of the Court of Appeals is attached hereto as ANNEX “D” series.

Comelec has exclusive power to recommend pardon

              In Section 5 of Article IX-C of the Constitution, the Constitution gives exclusive power to recommend pardon.

              Section 5 states:
Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission.


              Thus, it is not without doubt that the President of the Philippines cannot grant pardon without the recommendation of the Comelec.

              Being the only body situated in a position as the one that can recommend pardon, and because of the fact that the petitioner is innocent and pardonable but that his guilty verdict cannot be undone now as he already surrenders everything to Comelec, with more reason that the Commission is put on the spot of a big obligation to cause justice to reign.

              For being so and as explained above, the Comelec should now recommend pardon to the petitioner.

Comelec dismissed the disqualification
case filed against the petitioner

              Upon the same mistake that the petitioner wrote “130-A 7th, FB Harrison, Pasay City,” the Comelec dismissed the complaint for disqualification filed by Lourdes Soler..

              In dismissing the same, the Comelec En Banc meeting on October 24, 1995 resolved as follows:

1)      to dismiss the complaint of Lourdes Soler against councilor Teodulo R. Lorca Jr. for disqualification for lack of merit.”

A copy of the same Comelec Resolution No. 95-3560 is hereto attached as ANNEX “E.”

So that if the Comelec itself dismissed the petition for disqualification on the same facts, with more reason that it must now endorse the recommendation of clemency stated by the RTC of Pasay and recommend the same to the Office of the President.

Petitioner being innocent, interest of justice
requires Comelec to serve justice urgently


As discussed above and as clearly argued that the accused is indeed innocent under the standards of the Arsenia B. Garcia case, and the fact that it is now only the Comelec that has the power to do so, the Commission En Banc now has the obligation to serve justice.

The ruling alone of the Supreme Court in Arsenia B. Garcia that election offenses are mala in se, and the fact that the petitioner was in good faith in taking an oath to the narration of his residence that was not his residence obligate the Commission En Banc to do the duty of giving justice.

And the only way to give justice under this circumstance is for the Comelec to recommend to the President of the Philippines that the petitioner be pardoned.

 Otherwise, the harshness of the law will not be mitigated to what is just.

Conviction of the petitioner already final and executory

Given the fact that the election offense conviction is now final, the first condition required for pardon, that the sentence is final and executory, has been satisfied.

With this fact and the truth that the petitioner should have been acquitted, there is no hindrance for the Comelec to issue a resolution recommending pardon for the petitioner.

Nevertheless, the official act of giving recommendation does not require that conviction has become final and executory.  This condition is required only by the pardoning officer who is exclusively the President of the Philippines.

The petitioner’s case is already final and executory. Although he filed a petition for relief before the Court of Appeals, he sees the same as a hopeless attempt because his case, to stress again, has already been declared final and executory.  A copy of this petition for relief filed before the Court of Appeals is attached hereto as ANNEX “F.

At any rate, the only logical thing to be done now, in so far as the Comelec is concerned, is to make an en banc recommendation to save the innocent from the clearly and manifestly unjust imprisonment.

Close and continuing supervision by doctor
necessary for sickly 66-year-old petitioner
             

The 66-year-old sickly petitioner needs his doctor’s continuing close-supervision for ongoing and continuing treatment.

He has been suffering from diabetes and cardiac illness in a very fragile state.

His doctor has been doing close supervision to ensure quick response whenever any problem suddenly arises.

This has been the kind of life that he has undergone even before he was arrested on December 12, 2013.

In the name of justice and in recognition of the fact that the petitioner is already an old senior who has made exemplary contributions to local governance as councilor of Pasay City in the olden times, is it not proper to repay his good deeds with one gift of justice.

During the years of the Marcos dictatorship, the petitioner was one of the small voices fighting for democracy. He joined and spoke during rallies fighting for freedom for the country.  He also joined rallies of Corazon Aquino, the mother of the present President and who herself became president after democracy won over Marcos.

As proofs, a few of the photographs taken of the petitioner speaking at Cory’s rallies are hereby attached to this petition as a series of ANNEX “G.”


The Prayer


 WHEREFORE, it is prayed of the Honorable Court that this Petition for Recommendation for Pardon be granted by a Resolution of the Comelec En Banc. January 23, 2013, Manila for San Fernando City.  

RENTA PE CAUSING SABARRE CASTRO & ASSOCIATES
Unit 1, 2368 JB Roxas St. corner Leon Guinto, Malate, Manila
Emails: totocausing@yahoo.com, berteni.causing@gmail.com; Tel. No.: +632-3105521

By:

CIRILO P. SABARRE JR.
IBP No. 856677 /01-03-2012
PTR No. 117312429 /01-03-2012
Roll No. 53639 / MCLE No. IV-0003755



DERVIN V. CASTRO
IBP No. 836900/11-18-2010 up to 2012
PTR No. 0335125 /01-03-2012
Roll No. 53624 /MCLE No. IV -- 0007336 issued 10 August 2012



BERTENI CATALUÑA CAUSING
IBP No. 894664 / 03-20-2012 / Manila
PTR No. 0675267 / 03-27-2012 / Manila
Roll No. 60944/MCLE No. IV – 0007338 issued 10 August 2012

Cc:

OFFICE OF THE SOLICITOR GENERAL
Counsel for the Plaintiff
134 Amrsolo St., Legaspi Village, Makati

JUDGE TINGARAAN GILING
REGIONAL TRIAL COURT OF PASAY CITY, BRANCH 109
Hall of Justice, City Hall Compound, FB Harrison St., Pasay City

Explanation

Far distance and lack of manpower compelled the service of this Petition for Relief with Leave and Motion to Lift Warrant of Arrest by registered mail.


CIRILO P. SABARRE JR./DERVIN V. CASTRO /BERTENI CATALUÑA CAUSING
x----------------------------------------------x
Republic of the Philippines                   )
City of Taguig                                             ) SC
VERIFICATION & CERTIFICATE
OF
 NON-FORUM SHOPPING
I, TEODULO R. LORCA JR., of legal age, married, in view detention, postal address is at my counsel’s office at Unit 1, No. 2368 Leon Guinto St. corner JB Roxas St., Malate, Manila, after having been sworn to in accordance with law, hereby declare under oath that I have caused the preparation of the foregoing Petition for Recommendation of Pardon, read and understood the same and the allegations therein are true and correct of my personal knowledge and based on authentic records.

I further certify that other than this venue and jurisdiction, only one legal action is pending and this is the Petition for Relief filed before the Court of Appeals and a copy of that petition is attached hereto as ANNEX “F.”  The only other pending issues are motions filed before the Regional Trial Court of Pasay City, Branch 109, and these pertain to his custody.

Nevertheless, should I learn one I undertake to inform the Honorable Commission about it within five (5) days from knowledge.

IN WITNESS WHEREOF, I sign this Verification and Certificate of Non-Forum Shopping on this 4th day of January 2013, in the City of Taguig.


                                                                         TEODULO R. LORCA JR.

SUBSCRIBED AND SWORN TO BEFORE ME this 4th day of January 2013 in the City of Taguig, affiant showing his evidence of identity consisting of Senior Citizen ID No. ____________, issued by Pasay City.
Doc. No.:           ____;
Page No.:          ____;
Book No.:          ____;

Series of 2013.
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