BORACAY ISLAND–Day of reckoning?
The Ombudsman has ordered all the 26 respondents, comprising former and current officials of Malay, including some heads of offices, along with officials of a private hauling company, to file their counter-affidavits after “finding enough basis to proceed with the criminal and administrative investigation” of the cases filed against them.
Docketed as case number OMB-V-C-200099/OMB-V-A-20-0114, the order stemmed from the cases of graft and corruption, plunder, and charges relative to environment violations filed by Boracay-based journalist Noel Cabobos, who conducted an investigative report on the “anomalous” Public-Private Partnership between the Municipality of Malay and ECOS, a private hauling company, on the hauling of solid waste as well as the management and operation of the Malay sanitary landfill.
Cabobos, editor of Boracay Informer and national chairman of the anti-corruption advocacy group BawalAngKorap, filed the charges on Feb. 4, this year, naming as respondents former mayor Ceciron Cawaling and former vice mayor Abram Sualog along with former SB members Frolibar Bautista, Dante Pagsuguiron, Jupiter Aeldred Gallenero, Lloyd Maming, Maylynn Graf, Danilo Delos Santos, Julieta Aron, Natalie Paderes, and Dalidig Sumdad.
Among those additionally charged are incumbent officials acting vice mayor Niño Carlos Cawaling, SB members Nickie Cahilig, Junthir Flores, Ralf Tolosa, and Christine Hope Pagsuguiron.
Also charged are various heads of offices of the municipality, who, Cabobos claimed, took part in “machinating” the passage of the contract, including Executive Assistant IV Edgardo Sancho, Municipal Legal Officer Melanio Prado, Jr., Municipal Treasurer Dediosa Dioso, Municipal Accountant Herminigildo Javier, Jr., and Municipal Budget Officer Anneli Sespeñe.
ECOS incorporators who were named in the complaint are Oliver Zamora, Richard Chan Lek, Miguel Anthony Tiu, Corazon Zamora, and Christine Aldeguer.
The complaint stemmed from the passage of the Public-Private Partnership between the Municipality and ECOS, which, accordingly, is “peppered with defects and onerous provisions that go against the law and the interest of the government and the people of Malay.”
Cabobos cited the Commission on Audit (COA) findings as testimony that the very essence of a Public-Private Partnership had been twisted “to suit the respondents’ whims and caprices and with intent of personal gain”.
He was referring to the COA Audit Report released on Feb. 12, 2019 showing that for the months of November 2018 to January 2019 alone, the Municipality of Malay paid ECOS P51,713,780.72 for its services in the hauling of garbage mainly coming from Boracay Island, as well as the maintenance of the town’s sanitary landfill in the hilly portion of Brgy. Kabulihan in mainland Malay.
“Disbursements on hauling of Solid Waste and the Management and Operations of an Eco-tourism, Engineered Sanitary Landfill undertaken as a Public-Private Partnership (PPP) activity should have been under R.A. 9184, otherwise known as the Government Procurement Act, thus, casting doubt on the propriety, validity, and correctness of the transactions,” stated the COA report penned by State Auditor III Merle Maglunob and State Auditor IV Loda Ocheda.
The COA report also stressed that instead of the municipality paying ECOS, ECOS should have been responsible in financing the operation and maintenance of the particular undertaking normally without cost for the LGU.
“PPP should have been a tool to minimize the government spending. It should address the limited funding resources for local infrastructure or development projects for the LGU thereby allowing the allocation of public funds for other local priorities,” it said.
The COA further stated that disbursements made by the local government of Malay in favor of ECOS can be construed as “simple procurement of services and should follow the Revised Rules and Regulations of RA. 9184”, a provision that the complaint averred had been violated by the contracting parties.
Aside from the Anti-Graft and Corrupt Practices Act (RA 3019), the respondents were also charged with Plunder (RA 7080) and violations of the Ecological Solid Waste Management Act such as the Clean Water Act (RA 9275) and the Toxic and Hazardous Wastes Law (RA 6969).
Cabobos said the respondent officials and employees also violated the Code of Conduct of Public Officials and Employees (RA 6713), including their own Ordinance: Malay Municipal Ordinance No. 295, otherwise known as “An Ordinance Adopting Guidelines and Procedures for Entering into Public-Private Partnership Agreements with the Municipality of Malay”.
In filing the complaint, Cabobos said the respondents connived with each other and took advantage of their official positions and influence to unjustly enrich themselves at the expense and prejudice of the government, the people of Malay, and the tourists.
He alleged that the said officials and employees received kickbacks or a percentage in connection with the passage of the “anomalous contract” which, to date, has rolled off an aggregated amount of more than P100 million and “therefore, an act liable for the crime of Plunder.”
HONORING A VOID CONTRACT
In including the incumbent officials of Malay in the charge, the complaint said that since the current officials headed by Acting Mayor Frolibar Bautista continued to honor the contract with ECOS “they must be equally liable in the violation of various environment laws resulting from the execution of the contract.”
Cabobos cited the complaint of Punong Barangay Antonio Benignos of Brgy. Dumlog, who called the attention of the Sangguniang Bayan of Malay on January 4, 2019, following various complaints of the “foul odor” being emitted by the ECOS trucks as well as the alleged contamination of the Malay river due to the operation at the town’s sanitary landfill under the management of ECOS.
He also said various related complaints were also reported to the local government but fell on deaf ears.
Another case in point was the complaint filed by a certain Susan Briones of Brgy. Dumlog, who claimed of the spread of skin diseases among locals who came in contact with the Malay river as well as the disappearance of shrimps, snails, and other river species which used to inhabit the river.
On January 28, this year, the Manoc-manoc Elementary school suspended its classes following a “toxic stench” leaking from the MRF site being managed by ECOS that had left students and teachers vomiting and fainting.
The phenomenon had forced Malay MENRO officer-in-charge Mariane Salvacion to order ECOS to immediately address the issue, citing the hazards it poses to the residents and the environment.
“This emission of a foul odor, according to our SWM personnel, was due to the stockpiled (sic) of wastes that are being mixed during the hauling operation. Based on the verbal report of our ground team, the ECOS truck collection process was ‘halo-halo sa isang truck’ even though it was segregated at the source and at the collection point. It was dumped at the Manoc-manoc Staging area in the same way. If this will be our ways every time, it will impose (sic) problem especially from the biodegradable waste (food waste) not just to the people on the island but also to the people in the mainland since the garbage is being hauled to our sanitary landfill in Kabulihan, Malay,” she stated in a letter to Miguel Anthony Tiu, general manager of ECOS.
VIOLATING OWN ORDINANCE
In the complaint, it was stressed that both the former and incumbent officials of the municipality had violated their own Ordinance, referring to Municipal Ordinance No. 295, which, Cabobos said, was not followed when the PPP contract was approved in 2018.
He claimed that various provisions such as the technical requirement and the financial capability clause of the Ordinance had not been met, but the contract was still approved.
“It is surprising to note that despite the absence of the required documents as specified in the Ordinance, the contract with ECOS pushed through and without any hitches whatsoever,” he stated.
“For a contract of this magnitude, the law is keen on track record as a threshold for capacity of contracting parties in entering into a valid agreement. Which, in this case, the respondent ECOS was not able to demonstrate,” he said.
“In my opinion, PPP is good, with its main purpose of promoting general welfare and provide for a better quality of life for the people. This was even underscored by President Rodrigo Roa Duterte in his first State of the Nation Address (SONA) as part of the government’s thrust for sustainable development,” he said, noting, “but the failure of ECOS to provide eligibility requirements at the very start should have been grounds for the contract’s revocation. On the contrary, it was continued by the current administration, which has only recently paid ECOS millions of pesos.”
He also said that aside from the COA’s findings, the fact that the local government of Malay failed to coordinate with the National Economic Development Authority (NEDA) pertaining to the passage of the said contract made it bereft of the requisites that would make it legally binding.
NEDA, he said, serves as a repository of information on the status of PPP projects, copies of unsolicited proposals, and other related documents received by the implementing Agencies or Local Government Units, and it is the agency that assists Local Government Units in the preparation and development of projects.
In his prayer, Cabobos had asked the Ombudsman to declare the PPP contract null and void and to immediately suspend the respondents upon the commencement of the investigation of the case and eventually dismiss and perpetually disqualify them from public office.
Also, he asked the Ombudsman to require all Punong Barangays of the Municipality of Malay to establish an appropriate Materials Recovery Facility (MRF) as provided for by R.A 9003 and to order the DENR to spearhead the clean-up and restoration of the Malay River and its tributaries along with the establishment of an appropriate sanitary landfill and/or adequate solid waste and liquid disposal as well as other alternative garbage disposal systems, including the employment of the reduce, re-use, recycling of waste campaign, and the conversion of waste into energy or into productive materials.
Moreover, he also asked the Ombudsman to order ECOS the refund of millions of pesos it received from the Municipality of Malay based on the account of the PPP contract being void ab initio and for the latter’s total disregard for the environment of the Municipality of Malay.
After requiring the respondents to file their counter-affidavits and controverting evidence to the complaint, the Ombudsman in its order stated that “motion to dismiss or bill of particulars, and dilatory motions including, but not limited to, motions for extension of time, second motions for reconsideration and/or re-investigation are prohibited pleadings and shall be stricken off the records of the cases.”