BORACAY ISLAND, Malay, Aklan (via INews)–Responding to the graft complaint relative to the imposition of PhP30 for the use of pontoons docked at the front beach of Stations 1 & 3 back in December 2019, Acting Mayor Frolibar Bautista, Acting Vice Mayor Niño Cawaling, and members of Malay Council claimed that “no collections were made” and that the accusation is just a product of “motherhood statements which are false and without factual and legal basis.”
This claim was made integral in the Joint Counter-Affidavit executed by the Malay officials after the Ombudsman, finding merit in the complaint, ordered them to file their answer to the charges against them.
It may be recalled that on January 13, last year, investigative journalist Noel Cabobos filed a case of graft and corruption, abuse of authority, and gross negligence against all officials of Malay following the imposition of the PhP30 user fee on all water sports enthusiasts using the pontoon without the benefit of an ordinance or a law authorizing the executive department of the municipal government to collect the fee.
An anti-corruption advocate, Cabobos, who is national chairman of advocacy group Bawal Ang Korap, also filed a separate case of graft and corruption, including plunder and violations of various environmental laws, against said officials, which is also currently pending at the Office of the Ombudsman-Visayas.
THE PONTOON CASE
The filing of the case stemmed from the imposition of the said user’s tax based on Executive Order No. 51 series of 2019 issued by Bautista mandating all water sports and sea sports operators to utilize the pontoon in their activities.
The order was set to be take effect on Dec. 5, 2019, but was actually implemented from December 21.
“Beyond doubt, the fact that the collection of said user’s fee was implemented without the requisite of an Ordinance is highly anomalous. The law is very clear in Section 132 of the Local Government Code that the power to impose a tax, fee, or charge or to generate revenue shall be exercised only by the Sanggunian of the local government unit concerned through an appropriate Ordinance,” Cabobos stated in the charge sheet.
He said he included the members of the legislative body in the complaint because “not opposing the EO already constitutes gross negligence and violation of Section 3 of the Anti-Graft and Corrupt Practices Act, for which all of them must be held liable.”
“We are governed by laws, not of men. The executive department cannot just impose fees as simple as that. The bad faith and manifest intent of the respondents to cause the public wrong is very evident from the systematic and orchestrated issuance of an Executive Order to collect such fees,” he said.
“Yes, I agree that the mayor has the authority to issue executive orders within his executive and administrative powers since EOs are official directives or commands from the local chief executive to agencies in the executive branch. Meaning, these orders generally concern the implementation or enforcement of rules, policies, and procedures which have the force of law, but let me emphasize here that Mayor Bautista’s exercise of his executive and administrative powers cannot impinge on the legislative powers of the Municipal Council, therefore, as the local chief executive, he may not usurp the legislative function by enacting policies not adopted by the legislative branch,” he stressed in the complaint.
The Executive Order specifically requires all watersports and sea sports operators to utilize the centralized pontoon situated along Stations 1 and 3 purportedly to regulate the operations of water activities in the island.
The activities covered in the utilization of the said pontoon include island hopping, helmet diving, banana boat riding, scuba diving, parasailing, fly fishing, jet skiing, sunset cruise, and other related water and sea sports activities.
However, a lot of water sports enthusiasts, during that time, protested and vented their dissatisfaction and complaints on social media, asking, “Where does the payment go? Is there such an Ordinance authorizing the LGU to levy said fee? Were the stakeholders and tour operators informed of the additional fee for them to adjust their package rates?
After issuing the EO, Acting Mayor Bautists subsequently summoned officials of watersports businesses and directed them to take charge in the collection process.
Those directed to implement the collection included the Boracay Island Hopping Adventure Multi-purpose Cooperative, Aquasports Association, Aquanaut Association, the Boracay Association of Sport and Scuba Diving (BASS), and Boracay Water Sports Association (BWSA).
The associations, accordingly, became the “uneasy collectors” in the process in an effort not to “offend” the acting mayor, thinking that the renewal of their business permits come January might be “dangerously put on the spot”.
However, the Boracay Water Sports Association (BWSA), days after collecting the user’s fee assailed the EO through a Board resolution and asked Bautista to “stop the implementation of the user’s fee” but to no avail.
Russel Cruz, president of BWSA, said the association decided to propose to the acting mayor the stoppage of the collection “due to the mounting complaints and after realizing the EO’s inherent inconsistency and it being contrary to law.”
For her part, Natividad Bernardino, general manager of the Boracay Inter-Agency Rehabilitation Management Group (BIARMG), wrote Bautista on January 9, 2020 to stop the collection of the user’s fee citing complaints and opposition from various stakeholders, sports enthusiasts, and visiting tourists on the island.
BIARMG is the implementing arm of the Boracay Inter-Agency Task Force (BIATF) headed by DENR Secretary Roy Cimatu.
LIES, MALICIOUS, DEVOID OF MERIT
In their counter-affidavit presented to the Ombudsman, the charged officials stated that “from the get-go, the EO 51, Series of 2019, was not implemented, so much so that no actions on the part of the herein respondents were with manifest partiality, evident faith, or gross inexcusable negligence.”
The officials also claimed that the complaint is “devoid of merit, a piece of paper narrating unfounded and unchecked information, containing sweeping accusations of sensational proportions, that is good for a novel but lacks legal foundation to push this case to a conviction.”
Assailing the complaint, the charged officials said Cabobos was “spewing lies and malice in insisting that the said Executive Order was imposed and tickets issued. All he has in his column are his words and a photograph of what he claims to be a ticket with a QR Code, which in no way proves his allegations of the imposition of fees for the use of the pontoon.”
“Being a self-proclaimed ‘journalist’, it is quite surprising that Mr. Cabobos would concoct allegations from thin air, even coming to the conclusion that graft was committed by the herein respondents by his mere claims,” they further stated, even underscoring that the news and column articles published by Cabobos relative to the issue are “self-serving, malicious and all hearsay, and is without any factual and legal basis.”
In asking for the Ombudsman to dismiss the case permanently, the said officials described the complaint “as bad writing masked in acceptable vocabulary and good grammar, but, ultimately a waste of time. It does not have a ring of truth because it is not supported by facts and research. It is fiery passionate (sic), but so was Hitler, and this kind of rhetoric should not hold ground in matters of law and justice.”
“It is worth reiterating that the said Executive Order No. 51, Series of 2019, was never implemented, that no collections were made for the alleged use of interested parties of the pontoons,” they insisted.
In addition to Bautista and Cawaling, those who signed the counter-affidavit were SB Members Maylynn Graf, Dalidig Sumdad, Danilo Delos Santos, Nickie Cahilig, and Ralf Tolosa.