By Czarina Nicole Ong
The Sandiganbayan Second Division has dismissed the charges filed against former Sumisip Mayor Haber Amin Asarul, former Officers-in-Charge Treasurer Camlian Borjal and Accountant Marad Abdulkarim of Basilan after it granted their demurrer to evidence.
A demurrer to evidence is an act contesting that the prosecution’s evidence is not sufficient to render a guilty verdict. If the court approves it, then the case is dropped.
The three of them were earlier slapped with a violation of Section 3(e) of R.A. 3019 or the Anti-Graft and Corrupt Practices Act and Section 89(a)(5) of R.A. 7160, otherwise known as the Local Government Code of 1991.
This was in relation to the use of the municipality’s funds as security for a personal loan obtained from Al-Mashour Alibasa in Zamboanga City amounting to P2 million back on October 11, 2010.
They issued two Land Bank of the Philippines (LBP) Checks postdated November 11, 2010 amounting to P1,100,000 each, chargeable against the municipality. They later failed to pay back the loan amount and its 10 percent interest.
In their demurrer, the accused contended that the evidence presented by the prosecution is insufficient to convict them beyond reasonable doubt.
The prosecution’s evidence took a huge blow after they failed to present its witness, private complainant Alibasa. Alibasa further executed an affidavit of desistance dated December 7, 2015 claiming that the loan obligation had already been paid and settled.
The accused further said that no undue injury was caused to the government since no checks were ever drawn, encashed or charged against the funds of the municipality.
The anti-graft court sided with the defense, saying that their demurrer is “impressed with merit.” Granted, the Sandiganbayan ruled that the first element of graft – that the local officials discharged administrative, judicial or official functions in the issuance of the checks – was met.
But the second element, which was their acting with evident bad faith, did not have any leg to stand on. As for the third element, which was undue injury caused to the government; the anti-graft court ruled that it was absent in this case.
“The court is convinced that the element of undue injury appears to be absent, or at best remains doubtful, in that the prosecution failed to prove the same to the point of moral certainty,” the resolution read.
“For one, the plaintiff failed to present the private complainant, whose testimony is material to prove the alleged undue injury sustained by him,” it added. “Instead, it presented the testimony of Vicente Essex E. Minguez, Head Agent and Acting Chief Accountant of the National Bureau of Investigation, who merely identified the exhibits for the prosecution.”
Likewise, their violation of the Local Government Code failed because the prosecution failed to present witnesses to prove with moral certainty the personal character of the loan the accused had taken. “Thus, it cannot be concluded that the checks were also issued for private purposes,” the court said.
The court further ruled that the existence of a prima facie case against the accused has not been established, so it would be “superfluous” to still require the defense and the prosecution to go through trial.
The eight-page resolution was penned by Associate Justice Lorifel Pahimna with the concurrence of Chairperson Oscar Herrera Jr. and Associate Justice Michael Frederick Musngi.