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Anti-graft court denies appeal in Cebu Balili land case

By: - Senior Reporter / @inquirervisayas
/ 04:35 PM March 09, 2021

CEBU CITY –– The Sandiganbayan has stood by its decision to clear Cebu Gov. Gwendolyn Garcia and other officials over the controversial purchase of a beachfront property in the City of Naga, south Cebu worth P98.9 million but which turned out to be mostly under water.

In its resolution, the anti-graft court denied the plea of the Office of the Ombudsman to reverse its ruling for lack of merit.

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“First, the court is not convinced that the plaintiff (Ombudsman) was deprived of due process in presenting its case. The state had more than sufficient occasions to be heard to present its evidence,” said Associate Justice Lorifel Pahimna, who penned the ruling.

“A thorough examination of the motion reveals that it is a subtle attempt to have this court review purported errors of judgment or those involving misappreciation of evidence and factual antecedents. The issues raised therein have been dealt with and discussed at length in the assailed resolution,” she added.

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Pahimna said the court could no longer be compelled to “review, re-examine, and re-evaluate the evidence on record, and thereafter reverse and set aside the resolution, without transgressing the accused constitutionally-enshrined right against double jeopardy.

The double jeopardy clause holds that once an accused person has been acquitted, convicted, or punished for a particular crime, they cannot be prosecuted or punished again for the same crime in the same jurisdiction.

Associate Justices Michael Musngi, Ma. Theresa Mendoza-Arcega and Karl Miranda concurred with the ruling promulgated last Friday, March 5.

Pahimna said the grant or denial of a demurrer to evidence, which was filed by the accused, is left to the sound discretion of the trial court, and its ruling on the matter shall not be disturbed in the absence of grave abuse of discretion.

The grant of a demurrer to evidence in favor of the accused, she said, amounts to an acquittal and cannot be appealed because it would place the accused in double jeopardy

Aside from Garcia, the cases filed against the following accused were also junked: former Provincial Board Member Juan Bolo, retired provincial assessor Anthony Sususco, former provincial treasurer Roy Salubre, former provincial engineer Eulogio Pelayre, and former provincial budget officer Emme Gingoyon, as well as spouses Romeo and Amparo Balili.

All the accused, except for the spouses who owned the Balili property, were earlier found administratively guilty for grave misconduct by the Office of the Ombudsman and were ordered dismissed from government service.

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The Court of Appeals in 2014, however, nullified the decision of the anti-graft office against Garcia.

The appellate court said the Office of the Ombudsman acted “whimsically, capriciously and arbitrarily” when it adjudicated the administrative case against Garcia even if she was reelected governor in 2010.

Under the Aguinaldo Doctrine, a reelected public official is spared from any administrative liability for acts committed during his prior term if he gets reelected. In effect, Garcia’s reelection in 2010 condoned her alleged lapses.

Garcia served as governor of Cebu from 2004 to 2013. She was elected representative of Cebu’s third congressional district in 2013 and 2016. In 2019, he ran and won again as Cebu governor.

The case involved the province’s purchase of 11 parcels of land with a total area of 24.9 hectares for which P98.9 million was paid.

The Ombudsman’s decision said the deal was tainted with irregularities as the province at the time had no available funds for “providing a good opportunity for the Province of Cebu to develop and cater to the needs of interested investors.”

It said 50 percent of the total payment by the Capitol “actually came from the P50 million budget of the province not specifically earmarked for that purpose but for Site Development and Housing Program under Social Services.”

The decision noted that of the 11 parcels of land, about 196,696 square meters of the total area of 249,246 square meters is submerged in seawater, hence it can’t be used to develop an international seaport and attract investors, nor even for site development or housing.

But the Sandiganbayan noted that there was nothing in the Obligation Request which stated that the payment for the purchase of the Balili lots was charged from the annual budget under appropriated items called “Site Development and Housing Program.”

There was also nothing in the disbursement voucher that supports the conclusion that the Site Development and Housing Fund was applied to a purpose different from which it was originally appropriated by law or ordinance.

While the prosecution was able to present overwhelming documentary evidence to provide the individual participation of each accused, the court was not convinced that all accused performed illegal acts.

“To the court’s mind, it cannot be said that accused acted in conspiracy in the absence of evidence that points to their intentional participation in the transaction with a view to cause undue injury to the government,” the court said.

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TAGS: beachfront property, Cebu City, Cebu Gov. Gwendolyn Garcia, City of Naga, Ombudsman, Sandiganbayan
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