MANILA, Feb 12 (Mabuhay) –Commission on Elections (Comelec) Commissioner Aimee Ferolino should inhibit from voting in case a motion for reconsideration is filed on the dismissed disqualification case against presidential candidate Ferdinand “Bongbong” Marcos Jr., retired commissioner Rowena Guanzon said Friday.

“If Ferolino has any shame left, she should inhibit herself from voting on the Motion For Reconsideration,” Guanzon said on Twitter.

Guanzon said the Comelec First Division’s resolution on the Marcos case, which was penned by Ferolino, has “atrocious logic.”

“Ferolino’s Resolution is a must read for lawyers and non lawyers. Atrocious logic. It is fraught with grammatical and typographical errors,” she said.

In a post on Facebook, Guanzon — who earlier said Marcos should be disqualified from the presidential race over “moral turpitude” –attacked some of Ferolino’s arguments in her ponencia.

She said Ferolino equating crimes involving moral turpitude with crimes mala in se as upheld in the case of Zari vs. Flores is “no longer true” as it was overtaken by the Supreme Court jurisprudence on International Rice Research Institute vs. National Labor Relations Commission.

“[It] cannot always be ascertained whether moral turpitude does or does not exist by classifying a crime as malum in se or as malum prohibitum, 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 wrote.

The retired commissioner said this was upheld in the case of Dela Torre vs. COMELEC and Villanueva in 1996.

“So, it is quite wrong to say that an offense does not involve moral turpitude simply because it is an offense mala prohibita,” she said.

Comelec spokesperson James Jimenez earlier in the day explained that crime mala in se is a crime that is by itself naturally wrong while mala prohibita means they are considered wrong under the law, only because a special law exists that criminalizes it.

In her Facebook post, Guanzon also said that Ferolino tried to justify her ruling by stating that as a general rule, all crimes of which fraud is an element are looked on as involving moral turpitude, citing the case on Jesus-Paras v. Vailoces.

“Yes, crimes where fraud is an element very likely involve moral turpitude. But it does not follow that when fraud is not an element of a crime, the same no longer involves moral turpitude. For instance, rape does not require that there be fraud, but surely, rape involves moral turpitude,” she said.

Guanzon further said Ferolino relied exclusively on the elements of the offense when she ruled out moral turpitude.

“This is wrong. Determination of whether an offense involves moral turpitude is a question of fact and depends on all the surrounding circumstances. As shown in IRRI vs NLRC, an offense may involve moral turpitude under one set of circumstances while, in a different set of circumstances, it does not involve moral turpitude,” she said.

“Ferolino chose to turn a blind eye to the circumstances surrounding Marcos, Jr.’s offense.”

Guanzon also noted that Ferolino has averted to rulings where the Supreme Court made enumerations of some crimes involving moral turpitude. She, however, said that these enumerations are by no means exclusive. She noted that even Ferolino admits that these enumerations are “incomplete.”

The retired commissioner then questioned Ferolino’s argument that Marcos did not voluntarily or intentionally violated the law.

“Is he stupid that he did not know that he should file an ITR? Doesn’t he [claim] to be an Oxford graduate?  Why doesn’t he know something as basic as that?” she asked.

“His REPEATED failure to file his ITR and pay taxes for four years is an indicia that such failure was voluntary and intentional, a brazen disregard for the law. No doubt he was convicted of a crime involving moral turpitude.”

The 41-page ruling penned by Ferolino states that the failure to file tax returns was neither immoral nor did it involve fraud.

“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 ruling said.

“Was there fraud in the failure to file income tax returns of respondent? We don’t think so,” it added.

The consolidated disqualification cases against Marcos, which was handled by the First Division, hit the headlines when Guanzon accused Ferolino of delaying its resolution.

Ferolino, however, accused Guanzon of trying to influence her decision on the said cases.

Prior to her retirement, Guanzon had already released her separate opinion where she voted for Marcos’ disqualification as she believes that the non-filing of income tax returns for four consecutive years constitutes moral turpitude.

Six out of seven petitions against Marcos’ candidacy have already been junked by the Comelec divisions. Only the disqualification case filed by Pudno Nga Ilokano remains pending before the poll body. (MNS)

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