Ombudsman drops Gwen’s appeal on Balili case for lack of merit

Suspended Gov. Gwendolyn Garcia is facing a double whammy.

While serving a six-month suspension by the Office of the President, Garcia is heading for trial before the Sandiganbayan.

Deputy Ombudsman for the Visayas Pelagio Apostol said a 90-day preventive suspension awaits Garcia and the other active governments officials who were impleaded in the case.

This after Office of the Ombudsman has denied for “lack of merit” the motion for reconsideration filed by Garcia and seven other individuals who are facing graft charges charges over the controversial purchase of the Balili beach property in Naga City, which turned out to be mostly under water.

Garcia is  facing trial on two counts of graft and one count of technical malversation or illegal use of public funds.

The other respondents also have to answer on the graft charges filed against them for their alleged roles in the purchase of the Balili Estate for P98.9 million in 2008.

They are former Provincial Board Member Juan Bolo; retired provincial assessor Anthony Sususco; Provincial Treasurer Roy Salubre; Provincial Engineer Eulogio Pelayre; Provincial Budget Officer Emme Gingoyon; and land owners Amparo and Romeo Balili.

All of the respondents had posted bail to secure temporary liberty pending resolution of the criminal charges against them.

Expected

But Garcia’s lawyers said they are not banking too much on their Motion for Reconsideration in the Office of the Ombudsman.

“Based on my experience, you seldom see a court or agency rendering a decision reversing itself, but we are compelled to file one because that is a prerequisite to filing a petition for certiorari. So even if a party foresees that he cannot obtain a favorable relief by filing a motion for reconsideration, he is compelled by law to do so unless he falls under the exception of not filing one,” said Salvador in a text message to Cebu Daily News.

When asked if they intend to contest the denial of their motion for reconsideration or the main case before a higher court, Salvador said “It’s a matter that we have to study since we have not yet received a copy of the resolution.”

Mandatory

Apostol, in an earlier interview, said a preventive suspension is “mandatory” after arraignment.

“It’s purpose is to see to it that the officials won’t be able to influence the outcome of the case,” Apostol said.

The suspension according to Apostol is mandated in the Anti-graft and Corrupt Practices Act (RA 3019).

He said only a temporary restraining order (TRO) from the Court of Appeals or the Supreme Court can stop the implementation of the preventive suspension order which is legally known as “pendente lite” or suspension pending litigation.

The anti-graft office earlier found sufficient basis to hold the respondents for trial.

“When you look at it, there is really a basis in charging the respondents. If you purchase a lot which is under water, do you think there is no negligence on the part of the government? People just have to use their common sense,” Apostol said.

Denied

The respondents sought the reconsideration of the Ombudsman to overturn their indictment.

Last Jan. 25, 2013, Tanobayan Conchita Carpio-Morales signed the 21-page order that denied the motion for reconsideration filed by the respondents.

“All the grounds raised in respondent-movants’ motions for reconsideration merit no consideration as they are merely repetitions of the matters that have already been dwelt on,” the Ombudsman’s order was quoted in a Rappler.com report.

In a complaince filed last Friday, Prosecutors Jose Balmeo Jr. and Janet Leah Ramos told the Sandiganbayan’s second division about the denial of the respondent’s reconsideration.

The anti-graft office claimed that the accused diverted at least P50 million in government funds intended for housing and site development programs to pay for the land.

Citing an admission by Romeo Balili, there was no survey conducted before the agreement on the sale was signed.

“Such admission bolster this Office’s finding that the parties, most especially Garcia, had acted with gross inexcusable negligence in the purchase of the estate,” the Ombudsman said.

“Without doubt, the purchase of the Balili property is grossly and manifestly disadvantageous to the government… given that the substantial portion thereof is submerged in seawater and cannot be utilized for the province’s housing program,” the anti-graft office added.

The accused, the anti-graft office said, conspired with each other in carrying out the “anomalous” purchase as revealed by their “concerted acts” and “indispensable participation in the planning, preparation and consummation” of the transaction.

Former Board Member Juan Bolo said he hasn’t receive a copy of the order from the Ombudsman which denied their motion for reconsideration.

“I’m presently in Dapitan. I still have to ask the other respondents,” Bolo told Cebu Daily News.

He is contemplating on asking either the Court of Appeals or the Supreme Court to review the ruling of the Ombudsman.

Among the provincial legislators, Bolo asked why it was only he who was charged before the Sandiganbayan.

Bolo also questioned the ant-graft’s ruling which dropped the charges against the members of the provincial board, including Acting Gov. Agnes Magpale, who was a member of the PB when the property was bought.

The provincial board gave Garcia the authority to purchase the Balili lot.

“The provincial board should have been impleaded. The ability to purchase shall have the authority of the PB,” said Bolo who cried during a provincial board inquiry about the Balili fiasco.

Bolo reiterated his claim that he has not committed any wrongdoing.

“Wala gyud koy nadala bisan usa ka kadako. Sige lang, mogawas ra ang tinuod. Ang kaso sa lampppost bitaw na-dismiss man. (I have not pocketed even a single centavo from the Balili lot purchase,” he said.

Bolo earlier told CDN that he was just following orders from Garcia.

Bolo, a lawyer by profession, has decided to reside with his wife in Dapitan after he lost in the 2010 elections when he ran for re-election as board member in Cebu’s first district.

“I just relied with the findings of the appraisal committee. I reported to governor every step that I made. When did I lie?,” Bolo said.

In its original resolution that found sufficient basis to conduct trial against the respondents, the Ombudsman said Garcia entered into an agreement with the Balilis to buy a portion of the Balili Estate in Naga, Cebu, with an area of 24.9 hectares. The Cebu government had paid the Balilis P98.9 million in two checks.

It turned out that at least 19 hectares of the land were under water, according to the Department of Environment and Natural Resources.

Garcia, the Ombudsman said, also signed the deal with the Balilis even though the province had no funds earmarked for it.

The Ombudsman said the officials also lied about the real condition of the land and disregarded findings that more than half of it is under water to ensure passage of a Provincial Board resolution authorizing Garcia to enter into the deal.

The Ombudsman said the Cebu government lost at least P98.9 million as a result of the deal.

“The disbursement was illegal,” said the Ombudsman.

The Cebu provincial government, it said, “can no longer carry out its plan of site development and housing programs because … 196,696 square meters of 249,246 sq m (of the land) were under water.”

It said the PB was made to believe that the land was classified as industrial and recreational when it authorized Garcia to pay for the piece of property.

The Ombudsman said Garcia took funds from appropriations for social services to pay the Balilis, exceeding her authority.

The PB, it said, would have known that more than half of the land is under water had not the Cebu Provincial Appraisal Committee (CPAC) disregarded a report of a Technical Working Group and if one of the respondents, PB Member Bolo, had been candid enough to inform the board of the land’s condition.

This was the reason that CPAC members Sususco, Salubre and Pelayre were charged as well, said the Ombudsman.

Governor Garcia’s attention was called by Cebu environmentalists, who questioned the disposal of coal ash from the Kepco-Salcon coal-fired power plant nearby and the land classification of the Balili estate.

The governor called a press conference on Aug. 14, 2009 and made a public apology for what she called a “ fiasco,” saying she had been misled about the circumstances of the property purchase by PB Member Juan Bolo.

Nevertheless, 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 the Province of Cebu.

The Capitol sought the intervention of the court to reclaim the P37.8 million as refund for the portions of the Balili property that were found to be underwater. /Ador Vincent Mayol, Reporter