Guanzon takes swipe at Ferolino, as petitioners vow to take Marcos petition ruling to Supreme Court
MANILA, Philippines — Petitioners seeking the disqualification of presidential aspirant Ferdinand "Bongbong" Marcos Jr. are ready to take their case all the way to the Supreme Court.
After failing to secure a favorable ruling at the Commission on Elections Former First Division, Howard Calleja — lawyer of Campaign Against the Return of Marcoses and Martial Law — said they will file a motion for reconsideration next week.
"If they would like to retain the ruling which they have to right to do, my only request is that they decide it as fast as they can so that we can bring the matter to SC," he told reporters in a virtual briefing.
"Comelec can affirm their decision. That is their right, but please do it as speedy and as fast as you can," Calleja also said.
The Comelec Former First Division voted unanimously to dismiss the three consolidated disqualification petitions against Marcos, clearing him of the bulk of major legal challenges against his candidacy.
The lawyer also mentioned that they are pressed for time, as there are only 88 days left before the elections.
The Philippines kicked off its official campaign period on February 8. Marcos is currently survey frontrunner and is enjoying a double-digit lead over Vice President Leni Robredo, the opposition candidate.
"We hope the SC will finally put this disqualification case a close in giving proper, valid and right decision on the matter," Calleja added.
Like CARMMA petitioners, Akbayan party-list nominee and petitioner Perci Cendaña vowed that they will also take their case all the way to the SC.
"This is merely a bend in the road, not the end of it. This is just the beginning of our struggle to protect our electoral democracy from fraud and impunity," he added.
Failure to file ITR
Like most of the petitions filed against Marcos, the disqualification pleas anchored their argument on the aspirant’s conviction of failure to file Income Tax Returns for four years.
CARMMA, in a separate statement, said they take exception to the ruling that stated that the failure to file tax returns "is not inherently wrong in the absence of a law punishing it."
The petitioners cited part of the resolution that read:
Is the failure to file tax returns inherently immoral? We submit that it is not. The failure to file tax returns is not inherently wrong in the absence of a law punishing it. The said omission became punishable only through the enactment of the Tax Code.
This part of the ruling has been quoted in several social media posts, questioning the Comelec for supposedly saying failure to file ITR is not an offense punishable by law.
In a separate virtual briefing, Comelec spokesperson James Jimenez said this has been taken out of context. He pointed out that the quoted part should be taken in the context of an explanation of criminal law concepts “mala in se” and “mala prohibitum.’
"What it says a crime mala in se ("evil in itself") is a crime that is by itself is naturally wrong — for example, murder. You don’t need a law to tell you that murder is wrong, but there are some offenses that are mala prohibitum ("wrong because prohibited") which means they are considered wrong under the law only because special law exists to penalize it. For example, cutting down a tree, is not inherently [wrong]," Jimenez said.
‘Atrocious logic’
The widely-quoted part of the petition is part of the Comelec division’s discussion on whether the conviction of Marcos constitute moral turpitude—a ground for disqualification.
Quoting Zari v. Flores, the Commission said the Court had “emphasized that moral turpitude implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not merely be mala prohibita but, the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude.”
But retired Commissioner Rowena Guanzon pointed out that Commissioner Aimee Ferolino, ponente of the case, chose a 1979 case, and there are more recent jurisprudence on the matter.
She said the SC clarified the matter in the 1993 case of International Rice Research Institute v. NLRC, part of which read:
[It] cannot always be ascertained whether moral turpitude does or does not exist by classifying a crime as malum in se or as malum prohibta, since there are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only.
Guanzon was part of the Comelec’s First Division, and had revealed she voted to grant the petitions and disqualify Marcos Jr.
Her vote was not counted due to her retirement before the ruling was promulgated, but in her released Opinion, the retired commissioner said Marcos’ “repeated and persistent” failure to file his ITRs “constitutes an offense involving moral turpitude.”
Guanzon also argued that Ferolino was "wrong" in relying exclusively on the elements of offense when determining whether it consists moral turpitude "is a question of fact and depends on all the surrounding circumstances."
Calling the resolution fraught with "atrocious logic," Guanzon accused Ferolino of choosing "to turn a blind eye to the circumstances surrounding Marcos Jr.’s offense."
Jimenez, for his part, stressed: The Comelec does not say that failure to file ITR is not a punishable offense. It is. The Comelec is not saying that failure to file ITR is okay, because it is not.”
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