Sandiganbayan votes against dismissing Gwen Garcia’s graft cases

Gwen Garcia’s

The Sandiganbayan has voted against dismissing the graft and malversation charges against Cebu third district Rep. Gwendolyn Garcia involving the purchase of the Balili property in Naga City when she was governor.

In a split vote of 3-2, the Sandiganbayan Special Second Division rejected Garcia’s argument of unreasonable delays in both the Ombudsman’s investigation and the court’s trial.

The 12-page resolution was dated November 19.

The case stemmed from the cases filed before the Sandiganbayan by the Office of Ombudsman accusing her of two counts of graft and one count of illegal use of public funds over her administration’s purchase of the Balili property that was later found to be mostly under water.

Reached for comment last night, Garcia, in a text message to Cebu Daily News, said:
“The Sandiganbayan denied our motion to dismiss based on our right to a speedy trial. This case has dragged on for over 6 years now. Hence our motion to dismiss. We will be considering our legal options based on the Sandiganbayan’s denial of our motion.”
Asked if the graft court’s decision not to dismiss her cases would affect her candidacy, Garcia, who is running for governor in next year’s elections, only replied: “Should it?”

Garcia has also been previously ordered dismissed from public service by the Office of the Ombudsman in a separate case related to the Balili property but involving the backfilling of the property.

But the dismissal order was not implemented by the House of Representative leadership. Garcia has appealed the ruling.

In the criminal charges before the Sandiganbayan, Garcia’s move to file a motion to dismiss five years into the trial stage and complain about the length of the Sandiganbayan trial is nearly unheard of. Such motions usually concern the Ombudsman’s investigations and are filed before the arraignment.

The court said the Ombudsman took “a little over two years” to conclude its investigation and bring the cases to the court on July 19, 2012.

This “appears reasonable” because of the number of persons involved in the case and the volume of documents gathered.

Meanwhile, it noted that the pretrial conference was only held on Feb. 2, 2016, almost three years after Garcia’s arraignment on March 22, 2013.

But the court said the lawmaker failed to say that her multiple pleadings helped prolong the proceedings.

Within that period, the court noted that Garcia filed a motion to quash on May 21, 2013, an appeal on its denial on Oct. 3, 2013, an opposition to the prosecution’s pretrial brief on Aug. 16, 2013, an appeal on its denial on Jan. 7, 2014, a motion to defer pretrial proceedings on June 22, 2015, and an appeal on its denial on Aug. 7, 2015.

“Thus, the continuation of the preliminary conference was necessarily held in abeyance,” the court pointed out.

The trial was further delayed after both the prosecution and the defense sought corrections to the pretrial order, leading to its release on Sept. 27, 2016.

Still, the court said any delay in the proceedings “may be reasonably attributed to the ordinary process of justice,” because there was “no unreasonable lull in the movement of the cases.”

It added that by filing several motions and appeals throughout the proceedings, Garcia should have “reasonable expectation” that the proceedings would be prolonged.

“The present motion lacks merit as there is no vexatious, capricious and oppressive delay both in the OMB investigation and trial of these cases,” read the resolution concurred in by Associate Justices Lorifel L. Pahimna, Oscar C. Herrera Jr., and Efren N. de la Cruz.

Associate Justices Michael Frederick L. Musngi and Geraldine Faith A. Econg dissented from the majority ruling.

In their separate dissenting opinions, Musngi and Econg both argued that the Ombudsman violated Rule 112 of the Rules of Court, which provided a 10-day period for the investigating officer to determine if there are sufficient grounds to indict the respondent.

Garcia’s graft and malversation cases arose from the Cebu provincial government’s controversial purchase of the P98.93-million Balili property in Barangay Tinaan, Naga City, when she was governor in 2008.

Authorities later discovered that 19.67 hectares, or 79 percent, of the 24.92-hectare property was under water and part of a mangrove area.

She was dismissed by the Ombudsman from holding office in a Jan. 9, 2013 decision on the administrative aspect of the case.

But, the Court of Appeals on Apr. 23, 2014 set aside her dismissal because her offense of grave misconduct was deemed to have been “condoned” by voters during her reelection in 2010.

Garcia’s troubles with the Ombudsman flared up again earlier this year, as a January 15 decision ordered her dismissal again for entering into a P24.47-million project to backfill the underwater Balili property in 2012 without securing the Sangguniang Panlalawigan’s authorization.

That decision had not been enforced by the House of Representatives leadership, which cited the Ombudsman’s lack of disciplinary authority over sitting members of Congress.

The administrative ruling is currently being questioned before the Court of Appeals, which in September refused to issue a temporary restraining order.

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