The decision of the Sandiganbayan Second Division acquitting former City of Tagbilaran Mayor Dan Neri Lim for ordering the disconnection of the electric services of Former City Councilor and radio broadcaster Jeremias “Jerry” Pabe and radio technician Gerardo “Gerry” Cajes drew a stinging dissenting opinion from two members of the five-member anti-graft court.
After more than seven years of seeking justice for suffering the loss of electricity that lasted for two years and nine months, a divided court, voting 3-2 categorically ruled that Pabe and Cajes and their witnesses failed to prove that Lim had a hand in the issuance of a certificate withdrawing their temporary permit for electrical service connection.
The decision was penned by Associate Justice Michael Frederick L. Musngi and concurred by Associate Justices Lorifel I. Pahimna, and Edgardo M. Caldona.
But the Chairperson of the Sandiganbayan 2nd Division, Associate Justice Oscar C. Herrera, Jr. and Associate Justice Efren N. De La Cruz in their 12-page joint dissenting opinions “strongly submitted that accused Lim should be convicted as charged.”
Former City Administrator, Architect Walter Toston, the lone witness of Lim told the court that he did not receive any written or verbal order from Lim because as city administrator “being part of my job and duties, these are matters Mayor Lim will not take part when he was the Mayor.”
The dissenting opinion stressed that “the grant and revocation of the privilege of temporary electrical connection ultimately lie with the City Mayor.”
According to Associate Justices Herrera, Jr. and De La Cruz “the withdrawal of the warranty was thus demonstrably unjustified” and “bore the undeniable hallmarks of unabashed partiality.”
Lim, as Tagbilaran City Mayor extended warranty in favor of residents of Capitol Valley Subdivision for their temporary electrical connection with BLCI under a special electrification program while awaiting the approval of their subdivision documents by the Housing and Land Use Regulatory Board (HLURB).
It was public knowledge that DYRD-AM and the Bohol Chronicle were on the warpath after both the radio station and the newspaper exposed anomalies during Lim’s second and third term of office and was critical of the manner the city was managed.
Toston, who bore the brunt of Lim’s defense made it appear that the electrical connections of Pabe and Cajes had to be cut first before the other connections will follow because their houses were near the road.
According to Toston disconnection letters were prepared for all the household in Capitol Valley but were discontinued because “they (Pabe and Cajes) reacted and used the media.”
There were 150 households at that time whose temporary electrical service connection permits were not withdrawn.
But the two justices disagreed saying “If the decision to have the electrical connections severed was truly founded on a just and valid cause, however, even an adverse media mileage should fail to sway the city’s officials.”
Despite Toston’s reliance on the Local Government Code on the powers and duties of the city administrator, “the responsibility over the discriminatory act complained of undoubtedly falls on the lap of the accused Mayor Dan Neri Lim.”
The dissenting opinion pointed out that the city administrator shall assist in the coordination of the work of all officials of the local government unit, under the supervision, direction, and control of the mayor . . .”
The Sandiganbayan Presiding Justice formed a special division of five justices after the required unanimous vote of three justices in a division was not reached with Pahimna and Caldona designated as special members of the 2nd division on October 22, 2018.
The two 2nd Division special members voted for the majority which agreed with Lim that the “real” reason of the withdrawal of Pabe and Cajes temporary permit for electrical service connection was the fact that they were employees of radio station DYRD-AM remained unsubstantiated.
The majority decision gave weight to Lim’s assertion that there was no evidence presented by the complainants that there was a conflict between the Bohol Chronicle and himself when in fact both Pabe and Cajes admitted that they had no misgivings between them and Lim.
HUMAN RIGHT VIOLATION
Less than two months after the Ombudsman found probable cause for the filing of a criminal case against Lim, a resolution from the Commission on Human Rights (CHR), Regional Field Office 7 in Cebu City on August 23, 2011, recommended that Lim, City Building Official Teodorico Estoque and BLCI “take immediate concerted action for the restoration of the electrical service connections” of Pabe and Cajes.
The CHR resolution stated that Lim and his co-respondents “miserably failed to answer, controvert and refute categorically the specific allegations of human rights violation”.
“The right to electricity and to be reasonably charged for its consumption has been recognized as a basic right of an individual”.
Atty. Arvin Aguilar Odron, former Director of the CHR-Visayas testified that Lim submitted to its jurisdiction by filing pleadings but failed to rebut the allegations of human rights violations because Lim “just reproduced the counter-affidavit he filed before the Ombudsman.”
The 25-page majority decision concluded that the weakness of the defense put up by Lim is “inconsequential” because of the failure of the prosecution to discharge its burden of proof in establishing the commission of the crime charged and identifying the accused as the malefactor responsible for it.” (Chito M. Visarra)