By Czarina Nicole Ong-Ki
The Sandiganbayan Seventh Division has affirmed its decision freeing Olongapo City Mayor Rolen Calixto Paulino of Zambales of his graft charge in relation to the reportedly anomalous lease and development of the Olongapo City Civic Center back in 2014 to 2015.
Sandiganbayan (MANILA BULLETIN)
Paulino was initially slapped with a violation of Section 3(e) of R.A. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, alongside several city officials.
From October 2014 up to the first quarter of 2015, Paulino and his co-accused were faulted for fast-tracking the award for the lease and development of the Olongapo City Civic Center Contract to SM Prime Holdings Inc. (SMPHI).
However, they did not comply with the provisions of R.A. 6957 or the Act Authorizing the Financing, Construction, Operation, and Maintenance of Infrastructure Projects by the Private Sector, as amended by R.A. 7718 and its implementing rules and regulations.
On July 26, the anti-graft court granted Paulino's motion to quash because he was able to successfully explain that the provisions of the Build-Operate-Transfer (BOT) law do not apply in this case because "this law only covers specific contractual agreements which do not include a straight lease agreement." In the case of SMPHI, Paulino said it involved a "simple lease contract" that is not part of the BOT law.
After the charge was dismissed, the prosecution filed two motions for reconsiderations and harped on the "apparent error" made by the court.
The prosecution stressed that the lease agreement with SMPHI was not a private-sector infrastructure and development project, but rather a contract with the obligation to develop the leased space for commercial purpose. Contrary to what Paulino said, the prosecution said that the lease agreement does not fall outside the scope of the BOT law.
The prosecution likewise accused the court for acting with grave abuse of discretion when it considered the provisions of the lease agreement because it was not yet presented as evidence by the accused, and it has not been marked nor authenticated.
But the anti-graft court said the prosecution's arguments "wanes in its invocation." For one thing, the lease agreement was an admitted fact by the prosecution, so it no longer required proof.
"The prosecution's protestations should only be lulled. It is too late in the day to deny what it has admitted to in the beginning. Even in its original motion for reconsideration, the prosecution has not denied the lease agreement as it has premised its arguments on the interpretation of the BOT law as applied to the lease agreement by zeroing on the phrase 'including but not limited to,'" the resolution stated.
"For the prosecution to smack this court with grave abuse of discretion in its supplemental motion for reconsideration is no longer within the confines of its review power," the court added.
The 16-page resolution was written by Chairperson Ma. Theresa Dolores Gomez-Estoesta with the concurrence of Associate Justices Zaldy Trespeses and Georgina Hidalgo.
A perusal of the lease agreement dated December 16, 2014, showed the court that the 38,749 square meters of land owned by Olongapo City was leased to SMPHI for commercial purposes. The lease agreement aimed to develop the land for mixed commercial use, which included a mall, hotel tower, buildings for business process outsourcing (BPO) offices, parking buildings, and a transport terminal.
The court explained that infrastructure projects refer to the construction, improvement and rehabilitation of roads and bridges, railways, airports, seaports, and communication facilities, among many other things. In this case, the lease of the property cannot be considered as an infrastructure project.
Paulino's co-accused included Vice Mayor Aquilino Cortez Jr. as well as Councilors Elena Calma Dabu, Benjamin Cajudo II, Eduardo Guerrero, Noel Atienza, Alruela Bundang-Ortiz, Edna Elane, Emerito Bacay, Randy Sionzon, and Egmidio Gonzales Jr.
Also included in the charge sheet are Tony-Kar Balde III of the City Planning and Development Office, Cristiflor Buduhan from the Office of the City Accountant, Anna Sison of the Office of the City Legal Officer, Mamerto Malabute of the Office of the City Administrator, Department Head II Joy Cahilig from the Office of the City Budget Officer - all members of the SBAC.
Since Paulino's co-accused filed their respective motions to quash and applied the same argument, the graft charges filed against them were likewise dismissed.