Graft charges against Vice Governor Dionisio Balite when he was still a Board member of the 2004-2007 Sangguniang Panlalawigan (SP), together with nine of his colleagues and former members of the Provincial Bids and Awards Committee (BAC) collapsed after the Sandiganbayan Seventh Division found that the criminal information filed by the Office of the Ombudsman was “fatally defective”.
The Resolution stated that “since it is the information which is fatally defective for having failed to allege facts that constitute an offense” – the criminal case against all accused “be dismissed”.
In a 17-page resolution promulgated on April 5, 2018, the Sandiganbayan ordered the dismissal of Criminal Case No. SB-17-CRM-2199 against Balite, former Board Members Concepcion Lim, Jose Veloso, Felix Uy, Amalia Tirol, Corazon Galbreath, Godofreda Tirol, Ma. Fe Camacho-Lejos, Brigido Imboy, and Frances Bobbith Del Rosario Cajes-Auza.
Also cleared were former BAC members – Atty. Handel Lagunay, chairman, and Provincial Legal Officer, Edwin Vallejos, Provincial General Services Officer, Greta Mende, Assistant Provincial Engineer, Laura Saramosing-Boloyos, Supply Officer IV, Felix Mejorada, Administrative Officer and Abraham Clarin, Head, Provincial Motorpool.
The 14 high ranking public officers were accused by the Ombudsman of authorizing the payment to Civic Merchandising Inc. (CMI) through a letter of credit (LC) and to debit all charges to the opening and negotiation of the LC against the account of the Provincial Government with the Philippine National Bank (PNB).
A review by the anti-graft court of the supposed flawed Information filed by the Ombudsman “revealed a fatality that cannot be amended without causing substantial prejudice to the accused.”
According to the Ombudsman, the opening of the LC was prohibited by the Implementing Rules and Regulations of Republic Act (RA) 9184 known as the Government Procurement Reform Act and Memorandum Order (MO) No.119 issued by President Gloria Macapagal Arroyo on September 18, 2003.
On July 10, 2006, the SP issued Resolution No. 2006-387 authorizing the late Governor Erico Aumentado to open an LC in the amount of Php9,410,560.00 to purchase through importation one unit brand new hydraulic excavator (backhoe), with breaker for the Road Development Program of the Province.
The LC was subsequently issued to CMI, the winning bidder, in the total amount of Php9,723,998.15 with Php39,498.15 (LC opening charges) and Php35,000.00 (negotiation charges) or a total of Php74,498.15 charged to the Provincial Government.
But the memo invoked by the Ombudsman was amended by MO No. 213 dated May 8, 2006 that now allows government entities to issue LC’s which the Sandiganbayan, in its resolution stressed that “the prohibition against the issuance of letters of credit is now no longer in effect.”
As amended, the MO authorizing the issuance of an LC by the government in favor of a local or foreign supplier required two conditions – payment made upon delivery and acceptance of the goods according to the delivery schedule in the contract and cost for the opening of the LC shall be for the account of the local or foreign supplier as stated in the bid documents.
The information filed by the Ombudsman did not allege whether payments were made following the contracted delivery schedule as one of the requirements of the memorandum order.
The Sandiganbayan pointed out that the “provision is clear and leaves no room for interpretation” that the two conditions should be satisfied for a government entity to validly issue an LC.
“Had the intent been otherwise, the provision would have inserted the conjunctive word “or” to indicate that the non-fulfillment of either condition would result in its violation”, explained the Sandiganbayan.
The Sandiganbayan found merit in the argument raised by Balite and the BAC in their motion to quash that the facts as alleged in the information did not constitute an offense.
Failure of the Ombudsman to include one of the two conditions in the Information filed before the anti-graft court as provided in Memorandum Order (MO) No. 213 dated May 8, 2006, proved “fatal” to the prosecution of the criminal case, according to the Sandiganbayan.
Also, the Ombudsman invoked a provision of the Government Procurement Law that was allegedly “no longer in effect” when the provincial officials were put on trial, according to the Sandiganbayan.
NO PROOF OF DELAY`
As with the motion to dismiss filed by nine board members on the ground of “inordinate delay” which was dismissed, the resolution maintained that the lapse of only two years and ten months from the time the information was filed on September 11, 2017 “was not contravention of the accused right to speedy disposition of the case.”
The Sandiganbayan believes that the time taken in conducting a fact-finding investigation should not be counted in determining the presence of inordinate delay.
Criminal cases filed by the Office of the Ombudsman against the 2007-2010 SP members for also authorizing the late Governor Aumentado to open an LC for the purchase of heavy equipment were reportedly dropped by the other divisions of the Sandiganbayan for inordinate delay.
Meted nine-month suspension without pay as their administrative sanctions were Vice-Governor Balite, Provincial Administrator Alfonso Damalerio, Provincial Executive Assistant IV Dr. Cesar “Yul” Lopez, Maribojoc and Loay Vice Mayors Veloso and Imboy.
Those involved in the LC fiasco and are now separated from the service were fined six months equivalent to their salaries payable to the Ombudsman.
The charge against Aumentado as Head of the Procuring Entity (HOPE) was not pursued in view of his death on December 25, 2012. (Chito M. Visarra)