Dismissal was ‘without prejudice’
-A A +ATuesday, January 29, 2013
ALL the three Cebu major dailies reported yesterday that the Sandiganbayan has dismissed the criminal case for graft against former Lapu-Lapu City Mayor Arturo Radaza and 12 other co-accused, including the supplier, in connection with the purchase of the controversial lampposts for the Asean Summit in Cebu in 2007.
All three, however, failed to state that the dismissal was “without prejudice.”
For the record, this is what the Jan. 24, 2013 decision says:
“WHEREFORE, in view of the foregoing, this Court hereby DISMISSES without prejudice (italics supplied) the case against all the accused, namely, ROBERT G. LALA, GLORA R. DINDIN, MARLINA S. ALVISO, PUREZA A. FERNANDEZ, AGUSTINITO P. HERMOSO, LUIS A. GALANTG, RESTITUTO R. DIANO, BUENAVENTURA C. PAJO, ARTURO G. RADAZA, JULITO H. CUIZON, FERNANDO T. TAGAAN JR., ROGELIO D. VELOSO and ISABELO A. BRAZA.”
It is therefore, in a sense, misleading to say that the Sandiganbayan has cleared Radaza, et al because the court has not passed judgment on whether the accused are guilty or not but merely dismissed the case because of certain procedural errors that, in the mind of the court, violated their right to due process.
The phrase “without prejudice” leaves open the possibility of the Ombudsman re-filing the case once that office has done a better job of conducting preliminary investigation. It is possible that that accused will, in that event (of a re-filing), invoke their right against being subjected to double jeopardy. It must be pointed out, however, that the dismissal was upon their own motion and therefore can be considered to be with their express consent.
In fact, in the decision, the justices went great lengths in quoting, “to provide proper perspective,” the order issued by then Ombudsman Merceditas Gutierrez and Special Prosecutor Dennis Villa-Ignacio as well as the Memorandum, dated July 30 and Oct. 10, respectively, in 2008.
The July 30 order was based on the recommendation of Deputy Ombudsman for the Visayas Pelagio Apostol, who directed the attending prosecutors “to conduct further investigation with the end in view of obtaining additional evidence” and the Office of the Special Prosecutor to “properly address the other concerns in the criminal cases already filed before the Sandiganbayan.”
The Oct. 10 Memorandum, on the other hand, described the bind that the prosecutors found themselves in, thus:
“The withdrawal of the cases was brought about by the fact that the prosecution cannot prosecute the cases effectively for the reason that the Information on these cases covers only the price for lamppost excluding the labor cost, transportation costs and other expenses incident to the installation of the lamp posts. Hence, it would be very difficult to prove that the said contract entered into by the government was manifestly disadvantageous as the entire contract should be taken into consideration to prove the commission of the crime.”
Not surprisingly, this plus the refusal of the Ombudsman investigators to furnish copies to the respondents of the missing pages of the annexes to the complaint, were cited by the Sandiganbayan as grounds for dismissal of the case against Radaza and company.
How and why this happened, the public should be entitled to know. As Radaza’s publicist, Jonji Y. Gonzales, asked in an email to media outlets and practitioners, “why did the Ombudsman rush the filing of the case?” He also accused Merceditas Gutierrez and Virginia Palanca-Santiago of making sacrificial lambs of Radaza and company in order to protect people close to the Arroyo administration.
The Ombudsman may re-file the case. That is not the same as saying that it will. Thus, we may never be able to know the answers to the questions.
Published in the Sun.Star Cebu newspaper on January 29, 2013.
Opinion
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