Ombudsman finds no plunder offense in Malampaya scam

MANILA, Philippines — While 194 criminal cases were formally filed in court in connection with the P900-million Malampaya fund scam, no one among the 25 accused has been charged with the non-bailable offense of plunder despite the Office of the Ombudsman’s earlier findings that they received more than P50 million worth of kickbacks from the supposed anomaly.

In a 35-page decision approved by Ombudsman Conchita Carpio-Morales on Sept. 5, the anti-graft body partially reversed its Dec. 19, 2016 resolution finding probable cause to file plunder against the accused, including seven former officials who served during the Arroyo administration.

In a resolution, the ombudsman said it came up with a decision “after a considered review and re-evaluation of the case records vis-a-vis the various motions for reconsideration” filed by the respondents.

The ombudsman said that while its investigation revealed that former Department of Agrarian Reform secretary and incumbent Masui, Lanao del Sur Mayor Nasser Pangandaman Jr. and former DAR finance director Teresita Panlilio received commissions from alleged scam perpetrator Janet Lim-Napoles amounting to P75 million and P56.5 million, respectively, the “combination or series of overt criminal acts” of the respondents was not established.

The respondents were accused of diverting P900 million from the Malampaya fund allocated by the Department of Budget and Management to the DAR in 2009 and in the process using 12 non-government organizations linked to Napoles, who is also facing charges in connection with the pork barrel scam, as conduits to the fraud.

The ombudsman said upon its review, it became “apparent” that the commissions were amassed “only through one transaction” which was the release of Malampaya funds to the Napoles-linked NGOs.

“This being the case, the required ‘combination or series’ of overt criminal acts in order to raise the gravamen of the imputed acts to the crime of plunder is absent, thereby constraining this Office to dismiss said charge,” the ombudsman said.

The ombudsman, however, maintained that there is probable cause to charge each accused with 97 counts of graft and 97 counts of malversation of public funds through falsification of public documents.

The cases were formally filed before the Sandiganbayan on Dec. 1. 

Among those charged were former DBM secretary and incumbent Camarines Sur Rep. Rolando Andaya Jr., Pangandaman and four other ex-DAR officials and former DBM undersecretary Mario Relampagos.

Also charged were 18 private individuals, Napoles, her two children, two brothers and nephew.

In 2009, then president Gloria Macapagal-Arroyo signed Executive Order 848 allocating P900 million of government income from the Malampaya natural gas project for farm victims of Tropical Storm Ondoy and Typhoon Pepeng, which hit the country late that year.

It was later found out through a Senate investigation that the funds did not reach their intended beneficiaries but were instead allocated to bogus non-government organizations (NGOs).

Just like in the equally controversial pork barrel scam, the ombudsman said 12 fake NGOs were put up by Napoles to divert the Malampaya funds for supposed livelihood projects that turned out to be “ghosts” or were never implemented.

The ombudsman said the Napoles family forged the request letters of mayors of 97 towns and cities in Luzon to be the beneficiaries of the supposed projects.

For his part, Pangandaman allegedly directed then DAR undersecretary Narciso Nieto to request the DBM to release the P900-million discretionary fund supposedly “without any clear basis.”

The ombudsman said Andaya approved the release of the requested fund by signing a special allotment release order and a notice of cash allocation despite the absence of clear basis and supporting documents.

The ombudsman had earlier cleared Arroyo and executive secretary Eduardo Ermita of any liability in the Malampaya scam even if the two were included in the original complaint filed by the National Bureau of Investigation.

The ombudsman said the signing of the EO 848 was done in “good faith” and in accordance with Section 8 of Presidential Decree No. 910.