[NEWS] (04/11/17) Radstock debt deal and Parojinog cases fail due to Ombudsman delays

PNCC officials off the hook for Radstock debt deal
Vince F. Nonato
@VinceNonatoINQ

The case against several officials of the state-run Philippine National Construction Corp. over an anomalous P6.1-billion debt settlement is the latest casualty of alleged investigation delays by the Office of the Ombudsman.

In a 42-page resolution, the Sandiganbayan First Division granted the motions to dismiss filed by former board chairman Renato Valdecantos, president and chief executive officer Ma. Theresa Defensor, president and CEO Rolando Macasaet, and chief operating officer Arthur Aguilar

Also cleared were former board members Erwin Tanunliong, Hermogenes Concepcion Jr., Ottomama Benito, Enrique Cuejilo Jr., Roy Eduardo Lucero, Fermin Lusung Sr., Jeremy Parulan, and Antonio Villar.
The Sandiganbayan faulted the Office of the Ombudsman for failing to take action on the August 2006 compromise agreement with Radstock Securities, Ltd., as soon as former PNCC president Luis Sison began assailing it that year.

State prosecutors had charged the PNCC with violating Section 3(e) of the Anti-Graft and Corrupt Practices Act because the deal with Radstock was allegedly disadvantageous to the government.

Radstock had bought out the rights of Marubeni Corp. to the Marcos-era debt owed by PNCC; the lender proceeded to sue the state firm for the money afterwards. The settlement was meant to settle Radstock’s pending collection suit at the Court of Appeals. 

But, the Supreme Court in 2009 granted Sison’s petition to nullify the agreement for containing excessive concessions that were “contrary to law.” This partly served as basis for the criminal indictment of the PNCC officials.

NO ACTION IN 2006

However, the Sandiganbayan found that the Office of the Ombudsman violated the accused officials’ right to the speedy disposition of their cases.

The court noted that as early as July 2006, Sison had already complained about Aguilar at the now-abolished Presidential Anti-Graft Commission, which forwarded the case to the Ombudsman.

It said Ombudsman “did not take action” on Sison’s complaint for more than four years. The case was “put into oblivion” until Sison filed another complaint in September 2010 against Aguilar, this time alongside the other PNCC officials and on the strength of the SC’s decision to strike down the Radstock deal.

For the court, this meant the Ombudsman took 10 years and four months to wrap up preliminary investigation on Aguilar’s case on Nov. 3, 2015 and file the charges on Nov. 25, 2016.

The resolution explained that Sison’s first complaint “cannot be separated” from his second one because they covered the same transaction. It pointed out that the Ombudsman could have begun probing the deal as early as 2006, “independent of the actions brought by Sison” before the CA and then the SC.

“This is to make a point that the investigation on the questioned board resolutions could have been possibly done, at least as far as Aguilar is concerned, as early as 2006, considering that the pertinent documents cited in [the SC ruling] must have already been in existence,” it added.

ECHO OF SC RULING

As for the other accused whom Sison sued in 2010, the court still considered the six-year period spent at the Ombudsman’s level to be unjustified.

The court said the existence of the SC ruling annulling the deal should have already afforded the Ombudsman “a rather less intricate start,” since its pronouncements “had already provided the main and essential groundwork for preliminary investigation.

It pointed out that the Ombudsman’s resolution on the finding of probable cause against the officials are “essentially an echo” of the SC decision anyway.

WITHDRAWN CHARGES

At the same time, the court also approved the prosecution’s withdrawal of charges against former board members Braulio Balbas Jr., Romulo Coronado, Basilio Cruz Jr., Victor Pineda Jr., and Marvin Paule.

Prosecutors had asked to withdraw the cases so they can file another set of informations that would allege “conspiracy” among the board members. Balbas, Coronado, Cruz, Pineda, and Paule did not object.
But, the court had to deny the withdrawal of the case against former board member Raymundo Francisco, because he objected on the grounds that it would violate his right to be informed of the allegations against him. 

Francisco argued the issue of conspiracy was not taken up during preliminary investigation, and the court agreed that the prosecution “cannot conveniently introduce an allegation by simply withdrawing the Information with the anticipation of filing an amended one.”

Thus, Francisco remains the last PNCC official with a pending case related to the Radstock deal.

Upon inquiry, First Division sources also said that former Government Corporate Counsel Agnes Devanadera continues to face the graft case for advising the PNCC to enter into the debt settlement.

Under the voided agreement, 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.

Prosecutors claimed 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.

In the 2009 SC ruling, decision writer Antonio Carpio 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.” #

Parojinogs beat graft raps over Ombudsman delays
Vince F. Nonato
@VinceNonatoINQ

Ozamiz City Mayor Reynaldo Parojinog and his daughter, Vice-Mayor Nova Princess Parojinog, have been cleared of their graft case due to the Office of the Ombudsman’s “inordinate and capricious” delay in its investigation.

In a 14-page resolution, the Sandiganbayan Fifth Division granted the Parojinogs’ motion to quash the graft case arising from the mayor’s award of a gym renovation project to her daughter’s firm, Parojinog & Sons Construction Company, in 2008.

The antigraft court said the Ombudsman violated the two officials’ constitutional right to the speedy disposition of their cases, because it took five years and 11 months before the charges were filed in court on Nov. 23 last year.

Interestingly, the court also counted the fact-finding investigation stage: beginning with the Office of the Ombudsman for Mindanao’s referral of the case to the Commission on Audit on Dec. 22, 2010, the Ombudsman’s receipt of the audit report on Sept. 26, 2011, and finally the submission of the complaint for preliminary investigation on Dec. 8, 2014.

It may be noted that the Ombudsman has a pending petition at the Supreme Court seeking a stricter application of the inordinate delay doctrine to exclude this evidence-gathering stage, since it is still confidential and a complaint has not been formalized yet.

(The SC petition was anchored on the case against former Government Service Insurance System president Winston Garcia, which was thrown out in March 2016.)

But in the Parojinogs’ case, the Sandiganbayan zoomed in on the three-year gap between the Ombudsman investigators’ receipt of the CoA audit report and the filing of the complaint for preliminary investigation.

The court explained that the Ombudsman was “already responsible for the case” at the time it referred it to the CoA, which “did not take a prolonged time to act on the matter.”

The resolution noted that the factual and legal bases of the criminal case were already discussed by the anonymous tipoff that triggered the probe and the ensuing CoA audit report. It added that the issues were not complex, as investigators only had to establish conflict of interest by verifying that the Parojinogs are related.

“There is no acceptable justification for the delay after the CoA submitted its audit report. As stated, the Office of the Ombudsman had already taken cognizance of the case,” the court explained.

The court also said that contrary to the Ombudsman’s pleas, the fact-finding period should also be reckoned because the Field Investigation Office is a component of the antigraft agency too.

“This delay cannot be ignored by separating FIO investigations from the conduct of the preliminary investigation. All the stages to which the accused or respondent are exposed should be included,” read the resolution.

The court pointed out that the Ombudsman took another six months to resolve the field investigators’ complaint at the preliminary investigation stage.

Another five months lapsed before Ombudsman Conchita Carpio Morales approved on Apr. 29, 2016, the resolution on probable cause dated Nov. 27, 2015. Yet another four months passed between the denial of the accused’s motion for reconsideration on July 21, 2016 and the filing of the charges at the Sandiganbayan on Nov. 23, 2016.

The court did not give credence to the prosecution’s reasoning that the case went through hierarchical review, since that was already rejected by the Supreme Court in a 2013 ruling on the case of former Negros Occidental Governor Rafael Coscolluela.

Lastly, the court held the lengthy investigation came at a prejudice to the Parojinogs’ ability to defend themselves in a trial. It noted that the Bureau of Internal Revenue regulations only required companies to keep its business books and documents for at least three years.

This was a turnaround from the Sandiganbayan’s resolution two months ago denying the Parojinogs’ motion for judicial determination of probable cause, which was a separate relief challenging the validity of the Ombudsman’s indictment.

Last year, President Duterte accused the mayor of links to the illegal drug trade. At one point, he erroneously claimed that convicted robber Herbert Colanggo was Mayor Parojinog’s son-in-law, although the mayor clarified that the inmate had a relationship with Vice-Mayor Parojinog which he disapproved of. #


Prosecutors ordered to comment on Dichaves ‘clarification’ plea
Vince F. Nonato
@VinceNonatoINQ

The Sandiganbayan has allowed at least one and a half months of back-and-forth between the prosecution and the camp of former President Estrada’s alleged dummy Jose Dichaves before it may issue a warrant of arrest.

Dichaves has yet to be ordered arrested for the nonbailable plunder case, as his camp, led by Estrada’s former defense lawyer Estelito Mendoza, wanted to know first which evidence serves as the basis for a finding of probable cause to try him.

During Tuesday’s hearing, the Seventh Division ordered the Ombudsman prosecutors to file a comment-opposition on Dichaves’ motion in 30 days. Mendoza requested another 15 days to respond to the prosecution’s comment.

Offhand, Assistant State Prosecutor Loreto Cunanan told the open court that the plunder case has long been decided against Estrada and the prosecution’s efforts have been sustained since. He hinted that this shows a finding of probable cause against Dichaves, who has never faced the court thus far.

But, Cunanan said that he has yet to see the records personally because they have been already archived.

Mendoza, for his part, reiterated that “we have questions on the basis of probable cause to issue the warrant of arrest.”

“Likewise, the accused [Dichaves] should e informed of the evidence,” he said, adding that the businessman is being tried apart from Estrada.

The Sandiganbayan proceedings only recently resumed after the Supreme Court in December lifted a three-year temporary restraining order and upheld the validity of the Ombudsman’s 2011 reinvestigation of the case.

Asked by Justice Alexander G. Gesmundo of the pending appeal at the SC would not affect his Sandiganbayan motion, Mendoza answered in the negative.

The businessman claims to be the true owner of the Jose Velarde bank account at Equitable-PCI Bank. Prosecutors alleged Estrada conspired with Dichaves to use the account to stash P3.23 billion in ill-gotten wealth including commissions from the government’s purchase of shares from leisure firm Belle Corp.

Dichaves, however, could not be tried alongside Estrada in Criminal Case No. 26558, as he slipped out of the country by the time the Sandiganbayan first ordered his arrest on Jan. 29, 2002.

He only returned only in Nov. 19, 2010, three years after the former president was convicted for plunder in September 2007 but pardoned only six weeks later. (Estrada placed second in the 2010 presidential elections and became incumbent Manila mayor since June 2013.)

Mendoza invoked the constitutional right of the accused to be informed of the nature of allegations as part of due process in Dichaves’ case, the same tactic he had employed in the pork barrel scam cases of former Senators Juan Ponce Enrile and Ramon Revilla Jr., although the legal heavyweight was arguably more successful in the senior senator’s case. #

Police exec allowed to travel for ‘war on drugs’
Vince F. Nonato
@VinceNonatoINQ

The Sandiganbayan has granted travel permission to a high-ranking police official facing graft charges—who invoked the Duterte government’s war on drugs in his travel motion.

Senior Supt. Eduardo Acierto, officer-in-charge deputy director for administration of the Philippine National Police Drug Enforcement Group (PNP-DEG), said he is set to attend an operational meeting with the Taiwan Coast Guard next week.

His motion, however, still states his position as OIC-DDA of the now-abolished Anti-Illegal Drugs Group (PNP-AIDG).

Acierto’s motion stated that he will be visiting Taipei “in the interest of the national campaign against illegal drugs headed by no less than the President of the Philippines, Rodrigo R. Duterte.”

The antigraft court’s Sixth Division on April 6 allowed Acierto to leave the country from April 16 to 20, reporters learned on Tuesday.

As former chief of the Firearms and Explosives Office Firearms and Licensing Division (FEO-FLD), Acierto was one of the police officials charged with graft in connection with the award of the exclusive license delivery contract to Werfast Documentary Agency, Inc.

This was despite the firm’s alleged failure to meet various requirements such as registration with the Securities and Exchange Commission, delivery authorization from the then-Department of Transportation and Communications, and accreditation from the Department of Science and Technology.

The Ombudsman in June 2015 also meted the penalty of dismissal to Acierto and the other police officials after finding them guilty of the administrative offenses of grave misconduct, serious dishonesty and grave abuse of authority.

But, the Court of Appeals on Feb. 12, 2016 reversed the decision and ordered Acierto’s reinstatement. Later on, Acierto was appointed to the high-ranking position at the AIDG, which was disbanded in January in the aftermath of the killing of South Korean national Jee Ick-joo at Camp Crame.

“It is an accepted fact in this case that accused Acierto, as a reinstated officer of the PNP, would be invited to several meetings, symposiums, or seminars in relation to his duties as OIC, DDA, AIDG,” his motion read. #

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