Cebu Gov. Gwendolyn Garcia is seeking the dismissal of charges against her in relation to the purchase of the 24.7-hectare Balili property in Naga City.
The motion was filed by her daughter and lawyer Ma. Esperanza Christina Codilla-Frasco, who cited procedural lapses in the complaint.
Frasco, a new Capitol consultant, cited two grounds.
She said the affidavits of private complainants Manuel Manuel and Crisologo Saavedra were not attached to the order that required the governor to submit her counteraffidavit.
Second, she said the Office of the Ombudsman has no jurisdiction over the subject mater of the complaint.
She cited a Supreme Court (SC) ruling that states that “a procedural flaw in the complaint, such as failure to attach the affidavit upon which the complaint is based, renders the complaint dismissible.”
Frasco’s pleading, a copy of which was obtained by Cebu Daily News, said this defect violates the governor’s right to due process.
The Ombudsman’s Preliminary Investigation, Administration Adjudication, and Review Bureau (PARB) is investigating Garcia and other Capitol officials in relation to administrative and criminal liability in the Balili land deal, a purchase involving P98.9 million.
Frasco questioned the verification survey done by the Ombudsman with the Department of Environment and Natural Resources in Central Visayas (DENR-7) that classified most of the Balili property as timberland and submerged under water.
She said the Ombudsman doesn’t have the power to classify the property.
Frasco said the findings are not only a “grave misrepresentation of facts, but an erroneous and baseless conclusion.”
She said ten parcels of land in the Balili property are covered by valid and uncontroverted Torrens Certificates of Title.
“The Balili properties are validly titled private disposable lands and are not timberland,” Frasco said.
Even the High Court affirmed the validity of the Torrens Certificates of Titles, she said.
“Clearly, the nature of ten parcels of land within the Balili properties, being validly titled and disposable private lands, has remained unperturbed,” Frasco said.
Frasco said the governor was a “purchaser of good faith” and the complainants failed to present evidence to prove irregularities on the governor’s part.
Garcia is accused of entering into a grossly disadvantageous contract with the Balili heirs to purchase 24.7 hectares of property in violation of Republic Act 3019 or the Anti-Graft and Corrupt Practices Act.
Garcia called a press conference on Aug. 14, 2009, and apologized for what she called a “fiasco,” in the purchase of the property.
She said she was misled about the circumstances of the property purchase by former PB Member Juan Bolo.
Still, the governor said the province would continue with its plan to develop the Balili land into an international port and a coal ash storage area as part of its agreement with Korean power producer Kepco-Salcon.
She insisted the purchase was still aboveboard and that fishponds and wetlands could be reclaimed and titled in the name of Cebu province.
Garcia, who returned from a U.S. trip yesterday, said the province would still develop a 9.8-hectare site for the coal ash facility for the Korean Electric Company (Kepco) and start installing the plastic lining of the pit.