SC clears ex-Cavite Governor Maliksi, 2 others of graft charges

Published December 4, 2018, 7:17 PM

by Roel Tibay

By Rey Panaligan

The Supreme Court (SC) has cleared former Cavite Gov. Erineo S. Maliksi and provincial accountant Doris J. Ensomo of the graft charges filed against them by the Office of the Ombudsman in 2017 in connection with alleged irregularities in the purchase of land for the LRT-1 South Extension project.

In a resolution, the SC ruled that the Ombudsman failed to demonstrate the presence of evident bad faith, gross inexcusable negligence, or manifest partiality on the part of Maliksi and Ensomo in the payment of tenants’ disturbance compensation, broker’s commission, and capital gains tax and documentary stamp tax (DST).

Also cleared of graft charges, in effect, was Cynthia S. Montesclaros, attorney-in-fact of the vendor-landowners.

While the resolution was issued Sept. 26, 2018, it was made public only yesterday through a case summary released by the SC’s public information office (PIO)

The summary stated that “the Ombudsman did not cite the specific law, regulation, or ordinance prohibiting the payment of tenants’ disturbance compensation by a provincial government and enumerating the documentation required to support such expenditure.”

“Without the applicable legal basis, the petitioners’ approval of the payment of tenants’ disturbance compensation alone is insufficient to engender a reasonable belief that the petitioners have violated Section 3(e) of R.A. No. 3019” (the Anti-Graft and Corrupt Practices Act), the PIO said quoting from the resolution.

Citing the Ombudsman’s findings, the PIO summary stated that “Cynthia S. Montesclaros, the attorney-in-fact of the vendor-landowners, received a broker’s commission when she was not a registered broker, citing R.A. No. 9646, otherwise known as the Real Estate Service Act of the Philippines (RESA), which states that only the duly licensed real estate broker shall be entitled to receive or demand a fee, commission, or compensation of any kind for any service rendered or work done in any real estate transaction.”

But the SC pointed out that RESA was enacted on June 29, 2009, while the deed of absolute sale executed between the province of Cavite and Montesclaros along with the subsequent disbursement vouchers (DV) were all dated and processed in January 2009.

“Clearly, at the time of the transaction in question, RESA was not yet in effect,” the SC said.

On the payment of capital gains tax and DST, the same summary stated that “the Ombudsman ruled that petitioners deliberately ignored the Tax Code’s provisions when they allowed the Province of Cavite to shoulder the capital gains tax and DST.”

However, the SC pointed out that unlike the tenants’ disturbance compensation and the broker’s commission, the Ombudsman did not specify whether the petitioners were guilty of evident bad faith, gross inexcusable negligence, or manifest partiality in effecting the payment of these taxes.

“The attendance of any one of the three modalities is an essential element of violation of Section 3(e) of R.A. No. 3019. Thus, without mention of any of the three modalities, the payment of taxes in this could not have given rise to a violation of Section 3(e). Be that as it may, even if the OMB (Office of the Ombudsman) specified which modality attended the payment of the taxed, the charge is still unfounded” as it stressed the basic principle of freedom to contract.

Case records showed that on Feb. 27, 2008, the Light Rail Transit Authority (LRTA) and the province of Cavite, through Maliksi, entered into a memorandum of agreement (MOA) for the identification, acquisition, and development of a relocation site for the informal settlers affected by the LRT-1 South Extension Project.

The LRTA obligated and released the initial amount of P500,000,000 to the province of Cavite to fast track the implementation of the project.

On Jan. 20, 2009, the province of Cavite, through Maliksi, entered into a deed of absolute sale with Cynthia S. Montesclaros, as the attorney-in-fact of the vendor-landowners, over 14 parcels of land for P125,488,200, net of taxes, fees, expenses, broker’s commission, tenants’ disturbance compensation, and damages.

But aside from the contract price and other expenses like surveying and documentation, the province of Cavite also paid P6,000,000 as partial payment for tenants’ disturbance compensation with Montesclaros as payee; P4,968,750 – as five percent broker’s commission to Montesclaros; P6,112,300 for tenants’ compensation to Montesclaros; and, P9,411,627 for capital gains tax and DST with the Bureau of Internal Revenue.

On March 31, 2011 the Commission on Audit (COA) disallowed the additional payments as it ruled that the purchase price of P125,488,200 was already net of taxes, fees, expenses, broker’s commission, tenants’ disturbance compensation, and damages.

Maliksi’s appeal was later denied by COA.

On Sept. 17, 2012 the Ombudsman received a complaint against Maliksi, Ensomo and the Monteclaros.

On March 10, 2017, the Ombudsman found probable cause and ordered the filing of graft cases against them. When their motion for reconsideration was denied, Maliksi and Ensomo elevated the issue to the SC which ruled in their favor.

 
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