Will an elected or appointed public official be penalized for refusing to act on an application for a clearance to protect his constitutional right to claim, acquire, own and protect his property regarding his adverse claim over land on which the construction would be undertaken?

This was the issue that split the Sandiganbayan Special Third Division – 3-2 in a 25-page decision promulgated on October 27, 2016 finding former Panglao Mayor Doloreich Dumaluan guilty beyond reasonable doubt of violation of section 3(f) of Republic Act No. 3019 known as the Anti-Graft and Corrupt Practices Act.

The five justices of the Sandiganbayan Special 3rd Division were split, with three voting to declare Dumaluan at fault and two voting clearing him of the charges. 

The split, according to Dumaluan means there is serious doubt in the finding of the guilt of the accused and lacks the requirement of moral certainty.

However, Dumaluan appealed the decision saying “it is not based on moral certainty but simply on technicality” calling for the application of the principle of equipoise or the equipoise rule which provides that where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused.

REFUSAL TO ISSUE

Dumaluan was accused by the Bohol Beach Resort Development, Inc., owner and operator of the Bohol Beach Club (BBC) for refusing to issue, without sufficient justification within a reasonable time, a locational clearance for the construction of their new buildings and facilities.

Dumaluan was then the municipal mayor in 2004-2007 when the BBC filed for a locational clearance for the construction of five buildings, two restaurants and one swimming pool on a disputed land claimed by both parties.The dispute is still under litigation before the Regional Trial Court Branch 2, Tagbilaran City.

The lot where the construction was situated is the subject of a pending complaint for declaration of nullity of BBC’s Transfer Certificate of Title (TCT) No. 29414 filed by Dumaluan against the BBC, Provincial Environment and Natural Resources Officer (PENRO) and the Provincial Registrar of Deeds.

Dumaluan asserted that his refusal to issue a locational clearance was anchored on his adverse claim on a portion of land over which the facilities of the BBC will be constructed.

The land in question is a 2.3971 hectare allegedly bought by Dumaluan but only 1.6 hectares was titled under his name while BBC claimed and was issued a title to 2,805 square meters of the same lot.

The anti-graft court ruled  on October 27, 2016 that the former Panglao Mayor was guilty beyond reasonable doubt for his refusal to act on the BBC’s application for a locational clearance “for the purpose of directly obtaining for himself by protecting his claimed interest in the disputed property.”

RIGHT TO OWN PROPERTY

But in a dissenting opinion penned by Associate Justice Samuel Martires, the constitutional right of Dumaluan to claim, acquire, own and protect his property is not lost even when he assumed public office either by appointment or election.

According to Martires, this right is equal to that of a private citizen and “never has the property rights of a public official been subservient to that of a private individual for that would be tantamount to a punishment for accepting a public office.”

The separate opinion of Martires stressed that Dumaluan was “placed in a real predicament” if he grants the request for a clearance by the BBC on land that he had an existing claim of ownership.

By allowing the construction of the BBC buildings, Dumaluan “could be put in estoppel” and will weaken rather than strenghten his claim over the lot, according to Martires.

NO LAND USE PLAN

The 5-page separate opinion of Martires slammed prosecution witness Municipal Planning Development Coordinator (MPDC) Jovencia Asilo for “telling a lie” when she testified that the mayor, under RA 7160 (Local Government Code) is authorized to issue a locational clearance in the absence of an approved Comprehensive Land Use Plan (CLUP).

According to the 29-page motion for reconsideration (MR) filed by Dumaluan on November 9, 2016, the LGC did not grant any official in the municipality the power to issue locational certifications.

When the BBC requested for a locational clearance from Dumaluan, the power to issue the clearance was still lodged with the Housing and Land Use Regulatory Board (HLURB) except for cities and municipalities with CLUP’s, according to Dumaluan.

Referring to the website of the HLURB, Dumaluan told the Sandiganbayan that as of November 25, 2011, Panglao and President Carlos P. Garcia “still don’t have an approved CLUP.”

Ironically, Asilo certified on November 9, 2016 that on the year 2005, the updated CLUP of Panglao was still under review for the approval of the Sangguniang Panlalawigan.

Asilo also certified that all documents for building and occupancy permits passed her office and that there were instances in 2005 that building permits were issued even without locational clearances while the HLURB also issued clearances.

Both certifications from Asilo were attached as annexes to the MR filed by Dumaluan before the Sandiganbayan.

But the locational clearance was eventually signed and issued to BBC by then acting Mayor Pedro Fuertes while Dumaluan was serving a preventive suspension ordered by the Ombudsman in another case. 

Associate Justice Martires rebuked Fuertes in his dissenting opinion for contravening Executive Order No. 72 issued by President Fidel Ramos over the authority of mayors to issue location clearances despite the absence of approved CLUP’s.

Martires deemed the issuance of the locational clearance to BBC by Fuertes “a complete nullity and corresponding building permit of no force and effect”.

SPLIT DECISION

Dumaluan took note of the fact that a Special Division of five justices was formed because the unanimous vote of three justices of the 3rd Division was not obtained.

Following the Revised Internal Rules of the Sandiganbayan, in the event a unanimous vote is not obtained in a Division, the Presiding Justice shall designate two Justices forming a Special Division of five (5) Justices, and the vote of a majority of such Special Division shall be necessary for the rendition of a judgment or final order.

The Sandiganbayan sentenced Dumaluan the penalty of imprisonment of six years and one month as minimum, to ten years as maximum with perpetual disqualification from public office.

RA 3019 lists as corrupt practices of public officials under section 3(f) neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter for the purpose of obtaining pecuniary or material benefit for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any interested party.

The majority decision was written by Presiding Justice and Chairperson of the Special Division, Amparo Cabotaje-Tang and concurred by Associate Justices Alexander Gesmundo and Ma. Theresa Dolores Gomez-Estoesta.

Dissenting were Associate Justices Samuel Martires who wrote a separate dissenting opinion and Associate Justice Michael Frederick Musngi. (Chito M. Visarra)