Ombudsman junks recon on joint deal

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Ombudsman junks recon on joint deal

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An Ombudsman Order denying the Motions for Reconsideration (MR) of two alleged major players- in what is considered as perhaps the most high profile allegation of a  corruption case in the annals of Bohol’s history -caught an unsuspecting public by storm on Friday after one of the complainants went on air and released to the media copies of the order minutes after it’s receipt.

The four page Order signed by Ombudsman Conchita Carpio Morales on June 4, 2015 denied the MR’s filed by respondents former Governor now 1st District Congressman Rene Lopez Relampagos and Dennis Villareal, President and Chief Executive Officer of Salcon Power Corporation as “bereft of merit”.

The MR’s were filed by Relampagos and Villareal after Morales brought back to life in August 2014 a long dormant graft complaint filed in 2001 against 16 top provincial government officials by six lawyers representing the Association of Concerned Tagbilaranons (ACT).

Morales also struck down the contention of Relampagos and Villareal that the assailed Joint Venture Agreement (JVA) between the Provincial Government of Bohol and Salcon were “actually not disadvantageous to the government” as being a matter of defense and their allegation that both their rights to a speedy trial were violated are both lacking merit.

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At the root of the graft complaint is the sale to a Salcon consortium under an alleged rigged bidding, the  province owned electric and water utilities for a measly Php155 million despite an appraised valuation of Php1.48 billion, according to the complainants.

The status of an MR filed by one of the respondents, Governor Edgar Chatto who was then the Vice Governor and Presiding Officer of the Sangguniang Panlalawigan at the time the celebrated graft complaint was filed remained unclear.

Former Board member Roberto Cajes and incumbent Board Member Godofreda Tirol were not included in the graft complaint since both did not sign the Joint Venture Agreement-Rehabilitate Own and Operate (JVA-ROO) for the deliberate haste the agreement was pushed for approval.

REVERSAL OF FORTUNES

Relampagos in an emailed press release expressed extreme disappointment over the news of the Ombudsman order denying his MR even as the official copy of the order has not reached his office until yesterday.

“I maintain my ground that everything done then – from procedural to substantive, were all above board. We did no shortcuts. It was the best option at that time and it is still serves the purpose to this day. I was confident then and I am confident now”. (Read: separate story)

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Former OIC Governor Atty. Victor Dela Serna, one of the complainants of the assailed JVA could not contain his elation over the denial after he received the order from the Office of the Ombudsman, minutes before noon on Friday, July 10, 2015, immediately broke the news on his radio program and distributed copies of the order to media.

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“The Ombudsman order was a bolt of lightning in a clear sky.  I felt it was my duty to inform the public. Obviously, the Ombudsman did not agree with the respondents position”, Dela Serna told the Chronicle

“It was the work of the Almighty after 15 years. It is indeed providential that this case has been resurrected by the present Ombudsman in line with the President’s declared policy of “Daang Matuwid”, continued Dela Serna.

Dela Serna filed two unsolicited reply to the Office of the Ombudsman – a complainants’ opposition to Relampagos and Chatto’s MR and a complainants’ rejoinder to Villareal’s MR.

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NOT FINAL

Morales rejected the contentions of Relampagos and Villareal that the Office of the Ombudsman has no jurisdiction over the case since an earlier Resolution on February 22, 2001 dismissing the complaint and affirmed eight years later by then Overall Deputy Ombudsman Orlando Casimiro on July 2, 2008 has become final.

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Relampagos and Villareal invoked the doctrine of finality and immutability or permanence of court judgments in their respective MR after the Ombudsman under Morales reversed the July 2008 order of Casimiro dismissing the graft case against them and approved the filing of graft charges on August 22, 2014 against sixteen top provincial government officials for their roles in the crafting of a controversial joint venture agreement with a private power company.

 BASELESS

Morales argued that petitioners contention is “untenable”  and “is not without exception” citing Union Bank of the Philippines vs Pacific Equipment Corporation in G.R. No. 172053 on October 6, 2008.

Quoting the Supreme Court decision, the Ombudsman order emphasized that the only exceptions to the general rule on the doctrine of finality and immutability of judgement to put an end to litigation are the “correction of clerical errors, the so called nunc pro tunc entries which causes no prejudice to any party, void judgments, and whenever circumstances transpire after the finality of the decision rendering its execution unjust and inequitable”.

Nunc pro tunc is a Latin expression in common legal use in the English language meaning that, in general , a court ruling applies retroactively to correct an earlier ruling.

The Ombudsman order came fifteen years after Graft Investigation Officer ll Sarah Jo Vergara recommended for the dismissal of the case on February 22, 2001 for lack of merit.

Vergara’s recommendation was reviewed and approved by then Graft Investigation Officer lll Virginia Palanca Santiago and was recommended for approval to the Ombudsman by Deputy Ombudsman for the Visayas Primo Miro the next month, March 21, 2001.

LAPSES

The Ombudsman also stressed  that the July 2, 2008 Resolution as affirmed by Casimiro “is deemed void” and “did not attain finality and is, therefore, not immutable” for two reasons.

The Ombudsman found that that the July 2008 Resolution signed by Casimiro was only a photocopy of the proposed resolution attached on a duplicate file and not to the complete original case records reviewed by the Office of the Special Prosecutor and is “contrary to established procedure at the Office”.

The Ombudsman Order also claimed that “there is no showing” that Casimiro was duly designated as Acting Ombudsman and authorized to sign decisions and resolutions dismissing complaints filed against high ranking officials for the period in question.

Casimiro, who retired on August, 2013 temporarily replaced Gutierrez as Ombudsman.

According to the records of the case, the JV graft case spanned three Graft czars – then Ombudsman Aniano Desierto who retired on September 2002, Simeon Marcelo who served from October 2002 to November 2005 and Ma. Merceditas Gutierrez from December 2005 to November 2012. All failed to act on the recommendation to dismiss the case.

RIP OFF

According to figures shown in Dela Serna’s Unsolicited Complainants Opposition submitted to the Ombudsman on October 10, 2014, the Provincial Government “gave away to Salcon and Villareal a total of Php1,3 billion representing the franchise value of the electric and water systems, real estate, equipment and distribution systems and lost income.

But a certification from the Provincial Accountant’s Office belied the claim of the complainants that the appraised value of the utilities reached Php1.48 billion.

The document showed that the total assets of the Provincial Government including the Provincial Public Utilities Department (PPUD) operator of the electric and water utilities amounted to only Php628,751,509.93 as of December 31, 1999.

FAIR DEAL

Relampagos debunked allegations of a rigged bidding to favor SALCON saying “there were five bidders for the electric utilities and they made to undergo a stringent selection criteria and point system”.

“What clinched the deal for SALCON was their guarantee that the people of Tagbilaran will enjoy at the least possible cost efficient supply of electric power and safe and adequate supply of water “, Relampagos said.

Provisions contained in the JVA provides for the imposition of lower power rates and no increase in basic rates for at least five years and a 4% discount granted to all consumers if power demand reaches the amount shown in tender documents.

On the water deal, the present water rates at that time shall be lowered by P0.30/cubic meter and no increase in water rates within two years from date of operation of the JVC.

The five bidders for the power utility were Salcon Power Corp., Aboitiz Equity Ventures, East Asia Power Resources Corp., Meccron Polyweld/AT and E and Cepalco with SALCON as the most qualified bidder.

SOCIAL COST

Complainants alleged that SALCON submitted a bid of P75 million while Aboitiz Equity Ventures bid was P113 million pesos for the electric utility yet Aboitiz lost to Salcon after an evaluation was conducted by top Capitol officials.

According to Relampagos “SALCONS tariff proposal outweighed the apparent disadvantage of the financial proposal”.

Relampagos stressed that SALCON’s tariff proposal of P1.90/kwh for residential and P2.10 for commercial was more beneficial compared to Aboitiz P2.60/kwh and P2.70/kwh respectively since it will have a direct and immediate impact to the consumers.

SALCON will also not apply for an adjustment of the basic rate for five years while Aboitiz will immediately charged Tagbilaran consumers their proposed rates including an earlier Energy Regulatory Board (ERB) approved increase.

SALCON’s tariff proposal will translate into more than P211million in electric savings for residential and commercial coonsumers over a period of five years more than the P18 million difference in the bid price of Aboitiz, according to Relampagos.

Debts incurred by the provincial government for the rehabilitation of the facilities of the water and electric systems in the amount of P21 million as of July 15, 2000 will be assumed by SALCON as condition for the JVA

The United States Agency for International Development (USAID) supported the privatization of the province owned utilities thru the Governance and LocalDemocracy (GOLD) Project that made available professional, financial and legal advisers that gave guidance for the whole project.

INDICTED

The four page order signed by Morales on June 4, 2015 upheld an earlier Ombudsman Resolution on August 29, 2014 finding probable cause for the filing of graft charges for violation of Section 3(G) of Republic Act No. 3019 against former Governor Rene Relampagos, now 1st district Congressman, former Vice Governor, now Governor Edgar Chatto, former 3rd District Board Member, now Vice Governor and Sangguniang  Panlalawigan Presiding Officer Concepcion Lim, former Provincial Legal Counsel Inocentes Lopez, former Provincial Development Officer Juanito Cambangay and SALCON President Dennis Villareal.

Also included as respondents in the graft complaint are incumbent Board Member Tomas Abapo, Jr. former Board Members Arnold Lungay, Isabelito Tongco, Eufracio Mascarinas, Francisco Alesna, Sr., Severino Caberte, Exequial Madrinan, Felix Uy, sitting as Provincial Councilors League (PCL) President, Renato Lim, sitting as President of the Association of Barangay Captains  and Lemuel Digal representing the Sangguniang Kabataan.

Cambangay, Alesna, Sr., Caberte, Lim, Madrinan and Digal are now deceased.

Legal reliefs are now being explored by the respondents lawyers as the public is now awaiting with bated breaths the start of a full blown trial on this graft case that has hounded the political fortunes of the province incumbent and former  top officials.

Former OIC Governor Victor dela Serna, the late Tagbilaran City Councilor Alexander Lim, the late Human Rights Lawyer Nerio Zamora, former JAGO lawyer Zotico Ochavillo, former Board Member Aster Piollo and Women’s Right lawyer Myrna Pagsuberon represented Association of Concerned Tagbilaranons (ACT) in the graft case. (CMV)

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