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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