The prosecution is asking the Sandiganbayan’s Second Division to reconsider its ruling that dismissed the two graft cases and two malversation cases thatwere filed earlier this year against former Surigao del Norte Gov. Robert Lyndon Barbers in connection with allegedly anomalous procurement of fertilizers in 2004.
The anti-graft court earlier this month granted Barbers’ omnibus motion to quash, finding that his right to speedy disposition of cases was violated because of the delay in the Office of the Ombudsman’s investigations.|
“At the onset, it must be noted that the fact-finding investigation conducted by the FIO is a separate and distinct proceeding from the preliminary investigation proper. Hence, it should not be included in the mathematical computation of the period of resolving cases for purposes of determining whether or not it is attended with inordinate delay. The fact-finding investigation does not affect the administrative status of a person who, during this period, has no case to speak of,” the prosecution said in part in a motion for reconsideration filed on November 27.
FIO is the Office of the Ombudsman’s Field Investigation Office.
“At the fact finding stage, a subject who is not yet considered as respondent, is not place[d]under prejudice. At this stage, anybody who may be involved in the complaint or controversy is considered merely as a ‘person-in-interest,’” the prosecution said.
It argued in part that Barbers “cannot claim that he was vexed or that he suffered anxiety during the period when the fact-finding investigation was conducted until the same was upgraded to a preliminary investigation as he was not yet notified that he was the subject of a criminal investigation.”
Based on the court’s resolution, which was promulgated on November 9, the fact-finding investigation took five years.
It said in part that “records show that it took the Office of the Ombudsman 5 years and 9 months to complete its preliminary investigation counted from the filing of the complaint on 02 May 2011 until the filing of the” charge sheets before the court in February 2017.
In its motion for reconsideration, the prosecution said in part that “[t]he completion of the preliminary investigation up to the filing of the information for a period of 5 years and 9 months was necessary under the circumstances. The said period is reasonable enough considering the fact that there are several accused in this case.”
It also argued that Barbers’ supposed failure to assert at the earliest possible chance his right to disposition of cases amounted to a waiver of that right.
“It would be different if during the preliminary investigation, he showed signs of asserting his right to a speedy disposition of his case or at least made some overt acts, like filing of a motion for early resolution. His silence, therefore, during such period amounts to a waiver of such right,” the prosecution said.
Citing a precedent Supreme Court ruling, it added in part that “the protection under the right to speedy disposition of cases should not operate to deprive the government of its inherent prerogative in prosecuting criminal cases or generally in seeing to it that all who approach the bar of justice be afforded a fair opportunity to present their side.”
The Office of the Ombudsman had charged Barbers in connection with the allegedly anomalous procurement of fertilizers in 2004 along with then-Bids and Awards Committee Chairman Vicente Madlos, then-BAC Vice Chairman Bob Edera as well as then-BAC members Virginia Yuipco, Teresita Durero, Audie Relliquette and Adolfo Pantilo Sr.
Rose Marie Palacio, who was then-general manager of Rosa Mia Trading, was also charged.
The Office of the Ombudsman had alleged in the charge sheets that the accused entered into a contract or transaction in the provincial government’s behalf involving the purchase of a total of 3,332 kilos of foliar fertilizer worth P1,500 per kilo “without the benefit of public bidding, certifying that there are no suitable substitute to Elements foliar fertilizer in order to unlawfully resort to direct contracting and tailor-fit favored supplier and exclusive distributor Rosa Mia…”
It further alleged that subsequently, payment totaling P4,998,000 to the supplier was allegedly approved for 2,166 kilos and 1,166 kilos of foliar fertilizer “which is overpriced by at least P1,330.00/kilo” or for a total amount of P2.88 million and P1.55 million, respectively.