High-profile cases vs. 79 elected execs junked due to ‘inordinate delay’

The recent dismissal of graft charges related to the P726-million fertilizer fund scam against former Iloilo Representative Augusto Syjuco is the latest of a growing number of cases thrown out by the Sandiganbayan for alleged inordinate delay by the Office of the Ombudsman.

The Ombudsman has been suffering a string of setbacks in prosecuting high-profile corruption cases, including the fertilizer scam, after some of the accused convinced the Sandiganbayan that the prosecutors took too long to build the cases and invoked the doctrine of “inordinate delay.”

The accused claimed that the raps took too long from the time they were subjected to preliminary investigation to their filing before the anti-graft court.

A study by GMA News Research found that from 2013 to 2017, the Sandiganbayan dismissed at 565 cases, mostly graft charges, filed by the Ombudsman because of inordinate delay.

The dismissed cases represent 37 percent of the 1,523 cases wherein the accused asked the Sandiganbayan to junk their cases because of the violation for their right against inordinate delay. 

The  study covered only the resolutions uploaded on the Sandiganbayan’s website sb.judiciary.gov.ph as of February 2018. A single resolution could involve multiple cases against multiple accused.

The dismissals handed down by the Sandiganbayan practically cleared 286 accused, mostly government officials who were freed from lengthy legal battles. They include those involved in such corruption cases as 32 complaints involving the fertilizer fund scam of 2004 and 77 complaints related to the tax credit scam of the 1990s.

The Sandiganbayan had noted in its resolutions that the Ombudsman violated the accused’s constitutional right to speedy disposition of their cases. Delays varied from a little over three years to almost two decades.

Article III, Section 16 of the 1987 Constitution states that “all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.”

Still, the Sandiganbayan did not grant most motions to dismiss for inordinate delayed. It denied similar 64 percent of the motions or those in 948 cases involving 224 accused.

The Ombudsman has since appealed some of the dismissed cases before  the Supreme Court. It has also asked the High Tribunal to define inordinate delay and to stop the Sandiganbayan for the meantime from dismissing cases on the basis of the doctrine.

GMA News Research has sought comment from the Ombudsman but has yet to receive a reply.

But in an interview with GMA News last year, Ombudsman Conchita Carpio-Morales said that the Sandiganbayan had not been following a fixed standard in dismissing important corruption cases.

“Wala namang fixed standard or guidelines na sinusunod doon. Gusto naming maliwanagan kung ano talaga ang definition ng inordinate delay. Especially given the fact na napakaimportante nitong cases na dini-dismiss nila,” Morales said in an interview with Sandra Aguinaldo in April last year.

“But let me caution these who are rejoicing in light of this dismissal. There is nothing that can prevent us from refiling the case—wala pang double jeopardy. Hindi pa binista yung kaso, hindi pa na-arraign,” she added. 

Former Supreme Court Associate Justice Arturo Brion, current dean of San Sebastian Recoletos College of Law, said the inordinate delay dismissals emphasize the importance of the citizen’s right against a possibly oppressive state.

“Yung justice, hindi lang lagi dun sa merit. At times when the accused is already being oppressed, dapat i-dismiss mo. That is where justice lies,” Brion said in an interview.

“We have a state that is very, very powerful. It has inherent powers—police power, regulatory, taxation—lahat yan powers of the state that can be used against a citizen. Ang depensa ng individual, is under the bill of rights, due process. Kaya dapat natin pahalagahan,” he added.

Mostly graft, malversation

GMA News Research found that graft cases accounted for 323 of the 565 cases dismissed by the Sandiganbayan for inordinate delay from  2013 to 2017. Malversation of public funds or property involved 239 of the cases dismissed.

The Sandiganbayan granted the motion of 218 accused charged by the Ombudsman with graft.

79 elected officials

Of the 286 personalities who asserted and were granted their right to speedy disposition of cases, at least 79 were elected officials.

Of these, 29 were mayors, 16 were councillors, 11 were provincial board members, 9 were congressmen, 9 were governors,  4 were vice mayors, and one was a vice governor.

The rest of those cleared were other government officials and employees and some private individuals.

Fertilizer fund scam

The Sandiganbayan dismissed at least 32 cases involving the P726-million fertilizer fund scam because of inordinate delay. The anti-graft court dismissed the cases against 51 individuals including five congressmen and four governors.

The cases involved the alleged misuse of the Farm Input/Farm Implement Fund under the Ginintuang Masaganang Ani program of the Department of Agriculture during the time of former President Gloria Macapagal-Arroyo in 2004.

The funds were meant to buy for and distribute to farmers fertilizers, hybrid rice and corn, planting and training materials, post-harvest facilities, seeds and seedlings in line with Republic Act 8435 or the Agriculture and Fisheries Modernization Act.

The five former congressmen cleared were Abrahim Kahlil Blanco Mitra of Palawan, Antonio Cuenco of Cebu City Second District, Antonio Yapha Jr. of Cebu Third District, Edmundo Reyes Jr. of Marinduque and Eduardo Zialcita of Parañaque City First District.

Also cleared were former Senator and Pampanga Governor Manuel “Lito” Lapid incumbent Masbate Governor Antonio Kho, former Palawan Governor Mario Joel Reyes and former Surigao del Norte Governor Robert Lyndon Barbers.

Findings of the Commission on Audit show that the purchased fertilizers were overpriced and inappropriate for the intended purpose. Some did not reach the beneficiaries.

Investigation of the Ombudsman started in 2004. In February 2006, then Ombudsman Merceditas Gutierrez created Task Force Abono to specifically handle the investigation and case build-up of the complaints it received.

Inaction on the fertilizer fund scam was one of the articles of impeachment against then Ombudsman Merceditas Gutierrez, who resigned in April 2011, days before the start of her Senate impeachment trial.

Ombudsman Morales, who succeeded Gutierrez in 2011, was able to file some cases before the Sandiganbayan beginning 2015. At least one Sandiganbayan resolution noted that the Ombudsman took close to 12 years before it filed a complaint in court, from the start of investigation in 2004 until 2016.

Tax credit scam

The tax credit scam cases took even a longer time.

The scam involves the alleged anomalous issuance of tax credit certificates (TCCs) starting 1992 by the One Stop Shop Inter-Agency Tax Credit & Duty Drawback Center (OSS), an office under the Department of Finance, to business entities without legal basis and proper documentation.

Information posted on the website of the Ombudsman notes that a TCC refers to a tax credit representing the tariff duties and internal revenue taxes paid by an enterprise on the raw materials, supplies and semi-manufactured supplies used in the manufacture of export products, entitling it to a tax refund as a package incentive. 

To facilitate the issuance of TCCs, companies submit fake commercial documents to the OSS-Center which failed to verify their authenticity.  The TCCs were then sold or illegally transferred to other business entities by making it appear that the transferees were suppliers of raw materials.

The government reportedly lost an estimated P5.3 billion to the scam.

The Ombudsman received complaints of graft and estafa through falsification of public documents against the scam perpetrators starting the year 2000. During that same year, it filed 38 cases before the Sandiganbayan. The accused in these cases, businessmen Tan Cho Chiong and Ramon Manuel, immediately sought reinvestigation, which was granted by the antigraft court. These cases did not move at the Ombudsman for 17 years.

The Ombudsman also filed with the Sandiganbayan a total of 39 cases in 2009, 2011 and 2013. 

The Sandiganbayan dismissed all these 77 in 2015 and 2017 because it took the Ombudsman at least nine years to file the cases. The dismissals cleared 17 individuals.

The prosecution had insisted that the period of the investigation was reasonable, considering the massive volumes of documents related to the cases as well as the number of accused.

As of 2017, the Ombudsman was still filing cases before the Sandiganbayan related to the tax credit scam.

‘Balancing test’

The Sandiganbayan resolutions that dismissed the cases cited delays ranging from three years to 20 years, GMA News Research data show.

Fifty-six percent, 318 of the 565 cases,  were delayed for a decade or more.

Thirty-one percent, or 189 cases were delayed for five years to less than 10 years.

Nine percent or 49 cases were delayed for at least three years to less than five years.

The Sandiganbayan resolutions studied by GMA News Research relied heavily on Supreme Court jurisprudence, which noted that mere mathematical reckoning of the time involved is not enough.

The Supreme Court has stated in many decisions a “balancing test”—four factors that should be considered and balanced in determine whether the right to speedy trial has been violated.  These are the length of delay, the reason for the delay, the defendant’s assertion of his right and prejudice to the defendant.

“There is no hard and fast rule. It’s case to case,” said Brion, who penned at least one ruling on inordinate delay while he was Supreme Court justice. “I am happy enough with the balancing test because it has the element of flexibility. Natitimpla mo eh. Nababalanse mo…  All these factors must be considered as a rule. Hindi yung isa lang. Hindi yung length lang. Hindi rason lang,” he said.

Brion said it is important for the accused to assert his right to speedy trial by filing a motion before the court.

20 years

Former Capas, Tarlac Mayor Hermes Frias did just that. The Sandiganbayan ruled in his favour last year, noting that he had been weighed down by the case for close to 20 years—the longest among the cases reviewed by GMA News Research.

In a resolution dated June 27, 2017, the Sandiganbayan Special Fourth Division granted Frias’s motion to quash the 11 cases filed against him for violation of Republic Act 3019 or the Antigraft and Corrupt Practices Act.

“The total length of delay in the prosecution of the case reached almost 20 years. While the cases against accused have been pending, he has suffered the inconvenience of not being able to secure a ‘clean’ Ombudsman clearance. His right to travel has also been limited with the filing of this case before the Sandiganbayan,” the resolution read.

The resolution notes that the Sangguniang Bayan of Capas requested the Ombudsman for an investigation in August 1997, or almost two decades before the Sandiganbayan resolution was promulgated in June 2017. Cases were filed before the Sandiganbayan in October 2008.

News reports say that then Ombudsman Gutierrez ordered the filing of charges against Frias for the misuse of the municipal development fund and countrywide development fund.

The shortest delay in the 565 cases in 2013 to 2017 was three years and two months. This was noted in the case of incumbent Dalaguete, Cebu Mayor Ronald Allan Cesante. Cesante, according to news reports, was charged with graft for allegedly approving the lease of contracts for four commercial spaces owned by the municipal government to his wife.

The Sandiganbayan, in a resolution issued in 2016, said the records show that three years and two months had lapsed from the time of the filing of the complaint-affidavit in September 2012, until the completion of the Ombudsman's preliminary investigation in November 2015.

P6-billion case

Based on the amounts cited in the resolutions, Ombudsman press releases and news reports, the total amount involved in the dismissed cases is at least P6.9 billion.

The dismissed fertilizer fund cases involved a total of P45.58 million. Data on the amounts involved in the tax credit scam cases were not yet known, except for one—worth P59.7 million.

The biggest amount involved among the dismissed cases is P6.19 billion for the “grossly disadvantageous deal” between the government-owned corporation Philippine National Construction Corp. (PNCC) and Radstock Securities Limited.

Because of inordinate delay on the part of the Ombudsman, the Sandiganbayan dismissed 13 cases against 13 individuals involved in what the Supreme Court dubbed as “pillage of the public coffers that ranks among one of the most brazen and hideous in the history of this country.”

Former Solicitor General Agnes Devanadera and 12 former PNCC officials were off the hook because it took the Ombudsman an aggregate period of more than six years to finish their preliminary investigation.

In August 2006, PNCC and Radstock entered into a compromise agreement which reduced PNCC’s P17.04-billion liability to Radstock to P6.185 billion. This was months after the PNCC acknowledged and recognized through two resolutions its alleged liability through loans from Marubeni Corp. worth P10.74 billion, which ballooned to P17.04 billion. Radstock then bought the rights to PNCC’s debt from Marubeni.

The loans, the Supreme Court said, were acquired when PNCC was still named Construction Development Corporation of the Philippines (CDCP) and was privately-owned and managed corporation. The original loans were between Marubeni and Basay Mining Corp. (later CDCP Mining), an affiliate of CDCP.

The Supreme Court pointed out that the admission of this liability “would wipe out the assets of PNCC, virtually emptying the coffers of the PNCC”. The High Tribunal eventually nullified the deal.

PNCC operated and maintained toll facilities.

In a Senate hearing, as mentioned in the Supreme Court decision, it was learned that CDCP only owns 13 percent of CDCP Mining.

“PNCC cannot use public funds, like toll fees that indisputably form part of the General Fund, to pay a private debt of CDCP Mining to Radstock. Such payment cannot qualify as expenditure for a public purpose. The toll fees are merely held in trust by PNCC for the National Government, which is the owner of the toll fees,” the Supreme Court ruling read.

Another notable case dismissed for inordinate delay involved former Muntinlupa City Mayor Aldrin San Pedro, who was cleared of a P22-million graft case involving 40,000 trolley bags in 2008.

Graft charges against slain Ozamiz City Mayor Reynaldo Parojinog and his daughter Vice Mayor Nova Princess Parojinog involving the renovation of the provincial gymnasium in 2010 were also dismissed. The project was awarded to Parojinog and Sons, a private contractor in which Nova is a managing partner.

Former Government Service Insurance System (GSIS) President Winston Garcia and eight other high-ranking GSIS officials were also cleared of graft, filed for allegedly granted unwarranted benefits, advantage or preference to the Union Bank of the Philippines by awarding  a multimillion-peso GSIS e-Card Project to the company without complying to the procurement law.

High caseload?

Justice Brion said the dismissed cases could be attributed to the high caseload of the Ombudsman. He said Ombudsman Morales “inherited” cases that dated back to the time of her predecessor, Ombudsman Gutierrez.

Morales, in the interview with GMA News last year, said it takes time to build a strong case, which she noted could involve many public and private respondents. 

“Corruption cases are really difficult to investigate because usually yun namang mga nagnanakaw,  yung mga nagko- corrupt siyempre magaling sila magtago ng kanilang tracks so it would take some time before we can really come up with case build-up,” Morales said.

Morales said the Sandiganbayan has not been applying fixed standards or guidelines in dismissing cases, thus the Ombudsman has appealed the rulings before the Supreme Court. She said the antigraft court has been applying mere mathematical computation in determining delays, without considering other factors outlined by the Supreme Court.

“Nakakahinayang kasi ang tagal naming binild-up (build-up) ang mga kaso na napaka-strong as far as we are concerned, pagkatapos sasabihin lang nila na inordinate delay,” Morales said.  “It is more likely that a crime was committed and the respondent committed it than not being likely. Bigyan sana ng pagkakataon ang state to present its evidence,” she added.

The Supreme Court has yet to rule on the Ombudsman’s appeal. – with Karen Tiongson-Mayrina/NB, GMA News