Overlapping projects

No less that the Constitution provides that public office is a public trust, and public officers and employees must at all times be accountable to the people.

It also created the Office of the Ombudsman which, as protectors of the people, is empowered to investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.

The Ombudsman has the power to investigate corrupt practices of public officers who violate Republic Act 3019 or the Anti-Graft and Corrupt Practices Act. One such corrupt practice under Section 3e of the said law is “causing any undue injury to any party, including the government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith, or gross inexcusable negligence.”

Another corrupt practice commonly the subject of complaints filed with the Office of the Ombudsman is “entering, on behalf of the government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby,” provided for under Sec. 3g, also of RA 3019.

Violations of these are punishable with imprisonment, and perpetual disqualification from public office, among others. For the criminal aspect, it is the Sandiganbayan which is the court having jurisdiction to hear and decide the case. As for the administrative aspect, no criminal prosecution need be instituted so that proving that such acts were committed in a proper administrative proceeding before the Office of the Ombudsman is sufficient cause for removal or dismissal of a public officer.

Just recently, the Office of the Ombudsman had another opportunity to flex its muscle in pursuit of its constitutional mandate when it found probable cause to indict top officials of the Philippine Reclamation Authority (PRA) for violating Sec. 3e of the anti-graft law. Indictment refers to the filing of a criminal charge by the said Office before the Sandiganbayan.

The case stemmed from a complaint filed by Cavite Gov. Juanito Victor Remulla and Cavitex Holdings Inc. (CHI) chief executive officer Leonides Virata against the PRA officials last year for alleged violation of Sec. 3e when the PRA awarded a reclamation project to one entity when such project overlapped with an existing one earlier approved by the PRA.

PRA signed a land reclamation project back in 2012 covering 844 hectares which will be undertaken by the Cavite provincial government and CHI based on a 1994 joint venture agreement.

Then there was the Cavite-CHI MOA which was based on Cavite’s recognition of CHI’s prior vested legal right to implement the 844-hectare reclamation project under the 1994 JVA.

While CHI was securing the necessary permits and approvals from regulatory agencies, PRA approved in 2016 a 944-hectare reclamation project this time to be undertaken by the Bacoor city government in joint venture with Frabelle Fishing Corp. and Diamond Export Corp.

Unfortunately, the two Bacoor Bay reclamation projects had overlapping claims.

Just last June 14, the Office of the Ombudsman found probable cause to indict PRA chairman Alberto Agra and general manager Janilo Rubiato for violating Sec. 3e of the anti-graft law.

This was after records showed that Rubiato, as authorized by respondent Agra, signed an MOU with Bacoor City on another reclamation project on Dec. 7, 2016 despite knowledge of the illegal overlap.

It was only last June 15, 2022 when the agreement between PRA and the Bacoor city government was finalized that the complainants learned of such.

In its resolution, the Ombudsman said it finds probable cause to indict Agra and Rubiato of violating Sec. 3e of RA 3019 when they “acted with manifest partiality, evident bad faith and/or, at the very least, gross inexcusable negligence when respondents, purportedly representing PRA, entered into an MOU with the City of Bacoor on Dec. 7 2016 and three MOAs in 2021.”

It said that in a clear, notorious, or plain inclination or predilection to favor Bacoor City, respondents proceeded with an MOU with Bacoor City while issues pertaining to complainants’ 844-hectare reclamation project under the 1994 JVA were still pending and being threshed out, even as the PRA proceeded with the execution of three MOAs with Bacoor City concerning the latter’s application with reclamation that apparently affects the 844 reclamation project of complainants.

It noted that evident bad faith was present as it appears that complainants were intentionally left in the dark as to the transactions being made with Bacoor City for the reclamation of Bacoor Bay, adding that PRA should have at least informed complainants of Bacoor City’s reclamation projects due to the still subsisting 1995 JVA and private complainant’s right of first refusal.

The resolution also found respondents giving unwarranted benefits, advantage or preference to Bacoor City and its contracted partners Frabelle Fishing Corp. and Diamond Export Corp.

In a resolution signed by Ombudsman Samuel Martirez, the said body found probable cause for the filing of the information covering the criminal case for violation of the anti-graft law before the Sandiganbayan.

The Ombudsman also found Agra and Rubiato administratively liable for grave misconduct, “suspending both officials for a year without pay or imposing a fine equivalent to six months’ worth of salary should the suspension not be enforced due to the officials’ separation from service.”

In their defense, Agra and Rubiato disputed the official legal opinions of the Office of the Government Corporate Counsel and of former Justice Secretary, now Solicitor General, Menardo Guevarra on the reclamation issue, and argued that OGCC and DOJ opinions are not binding upon them.

How could PRA commit such blunder?

The Office of the Ombudsman seems to have gotten it right this time, although the administrative sanction seems to be too light compared to the offense.

Why am I saying this?

Tomorrow, I will be discussing another recent decision by the Office of the Ombudsman where it meted a penalty of permanent disqualification from public office of certain government officials who were just performing their jobs under the law.

And with the spate of complaints against reclamation projects going on all over the country, maybe it’s about time that a more thorough review of PRA’s mandate, the government’s reclamation policy, and the installation of a new set of PRA officials, be undertaken. After all, reclamation when properly undertaken can benefit the country immensely but can be destructive when done irresponsibly.

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