Ombuds sustains graft case on joint water, power deal

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Ombuds sustains graft case on joint water, power deal

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A judgement without legal force or binding effect is an exception to the immutability or permanence of judgments and the meaning of speedy disposition of cases cannot be determined by mere mathematical reckoning.

This was the gist of the eight page Consolidated Comment/Opposition filed by the Office of the Special Prosecutor (OSP) of the Office of the Ombudsman with the Sandiganbayan on December 1, 2015 in response to the Omnibus Motions from seven accused top officials of the Province of Bohol.

The OSP stressed that the alleged “inordinate delay” in the resolution of the graft case against the seven accused that spanned fifteen years was not “vexatious, capricious and oppressive”.

Also, the OSP believes that there exists probable cause that respondents are most likely guilty of the commission of the crime for violation of Section3(g) of RA 3019 or the Anti Graft and Corrupt Practices Act.

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“It is ultimately for the courts to determine”, according to the OSP, considering all pieces of evidence from complainants and respondents, including the assailed Joint Venture Agreement (JVA).

The OSP disagreed with Dennis Villareal, the lone private respondent “that as private individual he cannot be charged for violation of Section 3 (g), of R.A. 3019”.

“The argument of accused Villareal is untenable”, the OSP said, citing a Supreme Court ruling in Go vs. Sandiganbayan, et al that in an allegation of conspiracy, a private person may be held liable together with the public officer.

“Villareal cannot exculpate himself from being indicted in this case”, added the OSP, since the criminal information alleges conspiracy between Villareal, as President of Salcon and the public officials of the Province of Bohol.

The accused claimed that their right to a speedy disposition of cases were violated after Ombudsman Conchita Carpio Morales reversed on August 22, 2014 an earlier decision issued by then Deputy Ombudsman Orlando Casimiro on July 2,2008 dismissing the graft complaint against them.

But the Ombudsman rapped the accused saying “It is only now or for the first time, in their effort to have this case dismissed, that the accused raised the issue of speedy disposition”.

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The accused further justified that since no motion for reconsideration was filed by the complainants and the resolution was approved and signed by Casimiro, under the doctrine of finality of judgment the resolution is fait accompli or “an accomplished fact”.

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“Surprisingly”, according to the Ombudsman, the seven accused also never filed a single motion to hasten the final settlement of the case from October, 2000, the time that the graft complaint was filed up to 2008 when Casimiro “issued” the dismissal order.

On August 22, 2014, complainants and respondents alike expressed disbelief upon receiving the Ombudsman resolution finding probable cause to file charges based on a complaint that both parties believed was dismissed.

The Ombudsman also pointed out that the accused never even raised the right of speedy disposition of the case in their motions for reconsideration touching on the finding of probable cause for “entering into contracts or transactions which are manifestly and grossly disadvantageous to the government”.

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“What the accused did was to decry belatedly the alleged violation of their right to speedy disposition of their case and nothing more”, according to the Ombudsman.

But the accused argued that the Omdudsman “even in the absence of a motion for reconsideration or appeal and pursuant to the principle of immutability of final judgments or resolutions, the 2001 resolution must by upheld”.

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The Ombudsman also stressed that the concept of speedy disposition is “relative and flexible” and could not be pegged by mere mathematical reckoning.

Factors considered to determine that the right to speedy disposition of cases were violated includes the length and reasons for the delay,the assertion or failure to assert such right and the prejudice caused by the delay, according to the Ombudsman.

Failure by the accused to invoke that right and prove any actual damage or prejudice tagged to oppression and injustice will make it difficult for the accused to prove that he was denied that right.

The unmeant delay was not to oppress the accused “but to ensure that the office issues a correct and valid Resolution or Order”, said the Ombudsman.

The Ombudsman alleged that there is no showing the Casimiro was duly designated as Acting Ombudsman and authorized to sign decisions and resolutions when he dismissed the complaints against the accused on July 2, 2008.

The accused, according to the Ombudsman, fell short of proving any semblance of prejudice or damage caused by the delay.

“The prejudice, as alleged by them is at best imaginary” even as no proof were given that they were arrested and deprived of their liberty with the accused “admitted that they were even able to secure a clearance from the Ombudsman”.

The Consolidated Comment/Opposition was in compliance with a Sandiganbayan order for the OSP to answer all the motions filed by all accused.

1st District Congressman Rene Relampagos filed an Omnibus Motion on October 26, 2015 to dismiss for lack of probable cause and to quash information for violation of accused’s right to speedy disposition of cases.

Governor Edgar Chatto, Vice Governor Concepcion Lim, 2nd District Board Member Tomas Abapo, Jr. former Board Members Isabelito Tongco, Jr, and Felix Uy filed a Motion to Dismiss on November 2, 2015.

On November 9, 2015, Dennis Villareal filed an Omnibus Motion for the outright dismissal of the case, judicial determination of probable cause, deferment and or suspension of proceedings and for the production of the records of the preliminary investigation.

The seven accused posted bail except for former 1st District Board Members Arnold Lungay and Eufrasio Mascarinas, both of whom are reportedly out of the country while five of the sixteen accused are now deceased.

Former Provincial Attorney Inocentes Lopez and former Board Member Exequiel Madrinan also posted bail but were not mentioned in the OSP Consolidated Comment among those who filed motions before the Sandiganbayan.

The criminal case is docketed as SB-15-CRM-0283 before the 1st Division of the Sandiganbayan.

The criminal information was filed by the Office of the Ombudsman before the Sandiganbayan against the ten top provincial government officials and a private businessman and is docketed as SB-15-CRM-0283 before the 1st Division of the Sandiganbayan.

The eleven respondents were accused of conspiring to sell the province owned electric and water utilities for Php150 million despite the fact that the combined value of the two utilities is Php782 million and was deemed manifestly and grossly disadvantageous to the government. (Chito M. Visarra)

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