Sandiganbayan denies Ombuds motion for reconsideration; Gwen, 7 others still acquitted for Balili case

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THE Sandiganbayan Special Division has denied the motion for reconsideration filed by the Office of the Ombudsman on its decision to dismiss the two separate graft cases filed against Cebu Gov. Gwendolyn Garcia and seven others involved in the controversial sale of the P98.9 million Balili property in the City of Naga, southern Cebu.

But while four of the five associate justice of the Sandiganbayan's Special Division concurred with their decision to deny the motion, Associate Justice Oscar Herrera Jr., in a handwritten note, maintained that the demurrer to evidence filed by Garcia and her co-accused should not have been granted.

In its six-page decision issued on March 5, 2021, the Sandiganbayan denied the MR filed by the Ombudsman's Office of the Special Prosecutor due to lack of merit.

Last year, the Ombudsman's Office of the Special Prosecutor filed an MR before the anti-graft court after the former issued a resolution on the same month granting the demurrer to evidence filed by Garcia and her co-accused.

A demurrer to evidence is a motion to dismiss a case on the ground of insufficiency of evidence.

In its MR, the Ombudsman claimed that the Sandiganbayan Special Division violated their right to due process and committed grave abuse of discretion in its various findings that led to the acquittal of Garcia and her seven co-accused such as, among others, dismissing the case despite admitting that the Province had no program, project or activity as well as a specific budget item for the acquisition of real properties at the time that the Balili property purchase took place.

It also claimed that the Sandiganbayan "gravely erred" and violate its right to due process in concluding that the expenditure made to purchase the controversial property was never disallowed by the Commission on Audit (COA) or the Internal Affairs Service.

"The Court acted with grave abuse of discretion and violated the right of the State to due process when it failed to consider the documentary evidence presented which proves the existence of conspiracy, as borne out by the evidence presented," it added.

It also claimed that the Sandiganbayan Special Division violated the same by arriving at the ruling that the "body of water within the Balili properties may be due to displacement of water caused by continuous reclamation projects and reclamation of dikes in adjacent properties."

After the MR was submitted, Garcia and her six co-accused filed separate oppositions before the court.

Four of the accused, namely former Capitol Assessor Anthony Sususco, former Provincial Engineer Eulogio Pelayre, incumbent Provincial Treasurer Roy Salubre and incumbent Provincial Budget Officer Emme Gingoyon, claimed in their opposition that the said motion filed by the Ombudsman should be denied as it violates their right against double jeopardy.

Double jeopardy refers to the constitutional protection against being made to stand trial or face punishment more than once for the same criminal offense.

But in its decision, members of the Sandiganbayan Special Division said that they are not convinced that the Ombudsman's Office of the Special Prosecutor was deprived of due process in presenting its case.

"The State, represented by the Office of the Ombudsman-Office of the Special Prosecutor, had more than sufficient occasions to be heard and to present its evidence. Plaintiff was likewise not deprived of a fair opportunity in attacking the demurrers filed by the accused," it said.

It also denied the Ombudsman's claim that it committed grave abuse of discretion as all issues raised by both parties were "dealt with and discussed at length."

"The Court cannot now be compelled to review, re-examine and re-evaluate the evidence on record, and thereafter reverse and set aside the resolution, without transgressing the accused's constitutionally-enshrined right against double jeopardy," it added.

But in a handwritten note he placed in the bottom of the decision, Herrera said he concurs with the decision of his fellow associate justices as a resolution granting a demurrer to evidence cannot be the subject of a motion for reconsideration.

"But I maintain my position that the demurrer should not have been granted," Herrera added.(JKV)