Former Justice Sceretary Agnes Devanadera. INQUIRER FILE PHOTO
Former Government Corporate Counsel Agnes Devanadera has asked the Sandiganbayan to dismiss the graft case filed against her for advising the state-run Philippine National Construction Corp. (PNCC) to enter into an allegedly anomalous P6.1-billion debt settlement.
In a 31-page motion, Devanadera asked the antigraft court’s First Division to suspend the issuance of a warrant of arrest against her and make a judicial determination that there is no probable cause for the case to proceed to trial.
State prosecutors had charged Devanadera and 18 former ranking officials of the PNCC because the 2006 compromise agreement with British creditor Radstock Securities Ltd. contained concessions that were “contrary to law” and disadvantageous to the government.
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But, Devanadera said the Office of the Ombudsman cannot pursue the case, arguing that it was solely based on the Supreme Court’s 2009 ruling that voided the PNCC-Radstock settlement for violation of the Constitution and pertinent laws.
She said the Ombudsman “misappreciated” the SC ruling as it never held the PNCC board criminally liable for entering into the said agreement. The ruling only tackled the validity of the deal itself.
Devanadera added that even the SC ruling stated only the PNCC Board was negligent, not her.
“If the Second PNCC Board has not been declared liable for executing the Compromise Agreement, much less can Devanadera be indicted for merely providing legal advice,” her motion read.
Devanadera said the statements during the Senate’s Blue Ribbon committee probe and the SC’s oral arguments do not have evidentiary value. She noted that she was not even given the chance to cross-examine these statements.
She also slammed the Ombudsman for linking her to the issue only on the basis that she signed the agreement in her capacity as Government Corporate Counsel.
“She did not propose it. She neither negotiated nor approved it. She did not even endorse it. The PNCC Board did all the evaluation presumably using their business judgment,” the motion read.
“These are all on record. Yet, the Ombudsman indicted Devanadera anyway, because she is under the mistaken belief that [the SC ruling] mandates it.”
Devanadera “begged” the court to make its own determination of probable cause, saying “the Ombudsman was too prejudiced to do her job well” at the preliminary investigation stage.
“It is not enough that the Ombudsman has abandoned her duty to determine probable cause and insidioussly [sic] passed that burden to this Honorable Court. The unseen evil that that practice breeds is that it practically requires Devanadera to prove her innocence,” the motion read.
Besides Devanadera, 18 former PNCC officials were accused of violating Section 3(e) of the Anti-Graft and Corrupt Practices Act for allegedly causing undue injury to the government and giving warranted benefits to Radstock.
Her co-accused includes former Quezon City 3rd District Rep. Ma. Theresa “Maite” Defensor, who went on to serve as PNCC’s president and chief executive officer.
Others charged were former PNCC board chairman Renato Valdecantos, former president and CEO Rolando Macasaet, former chief operating officer Arthur Aguilar, and former board members Braulio Balbas Jr., Romulo Coronado, Basilio Cruz Jr., Victor Pineda, Erwin Tanunliong, Hermogenes Concepcion Jr., Raymundo Francisco, Ottomama Benito, Enrique Cuejilo Jr., Roy Eduardo Lucero, Fermin Lusung Sr., Jeremy Parulan, Marvin Paule and Antonio Villar.
The compromise agreement signed on Aug. 17, 2006 was meant to settle the collection suit pending before the Court of Appeals at the time. The PNCC agreed to recognize its liability of P6.185 billion, and to settle this, it gave Radstock 19 government-owned real properties worth P3.188 billion.
The PNCC also assigned shares to Radstock worth P713 million, equivalent to 20% of the state firm’s capital stock. The company also signed away half of the its 6% share in the gross toll revenue of the Manila North Tollways Corp., from 2008 to 2035, approximately valued at P1.287 billion.
But prosecutors said the PNCC Board had no power to compromise the settlement amount, and charged that the PNCC cannot assign the toll fees to private entities like Marubeni and Radstock.
The charge sheet also stated the PNCC cannot transfer government-owned real property to Radstock in the absence of public bidding and without complying with existing property transfer laws.
Prosecutors also said the PNCC’s assignment of “substantially all of its assets” in order to pay its obligations to Radstock was prejudicial to its other creditors, including the national government.
The SC’s 2009 ruling dubbed the agreement as “pillage of the public coffers that ranks among one of the most brazen and hideous in the history of this country.” JE