KEY POINTS.  Of the five persons -- all members of Cebu City's PBAC or pre-qualification awards and bids committee -- charged with corrupt practice on October 16, 2012 before the Sandiganbayan over a 1997 P26.64-million project, two were earlier acquitted for "inordinate delay": former Cebu City mayor Alvin Garcia and former city councilor Rico Rey Holganza.
The cases against former city treasurer Eustaquio Cesa and private individual Pura Cimafranca, an NGO representative, were archived because they disappeared and couldn't be found. Also archived was the case against another former city councilor (1992-2001), Laurito Malinao, who died in 2008, four years before the Ombudsman filed the information.
The 25-year-old case thus proceeded only against Rodolfo Cabrera, a councilor until 1998.
 Ombudsman prosecutors alleged at least five wrongdoings and defects of the medium-rise, low-cost condominium that Octa Builders built in February 1997 and finished in May 1998. The list is topped by the accusation that the P26.6-million project cost the City 49.54 percent more because it was allegedly only worth P17.8 million.
 Prosecution's total evidence -- the Sandiganban Second Division said in a decision promulgated last June 24 but announced Monday, June 27 -- "failed to prove beyond reasonable doubt" there was "manifest partiality or evident bad faith" on the part of Cabrera.
The anti-graft court also found no "undue injury or unwarranted benefit" as the condo was delivered and the project accepted, with the deed of conveyance signed on June 2, 1998.
ALLEGED BUT NOT PROVED. What ailed the project? The ombudsman prosecutors alleged but failed to prove:
* It was not approved by the Cebu City Development Council;
* No publication, no approved agency estimate, no public bidding;
* Contract price was 49.54 percent higher than the actual cost;
* Contractor Octa Builders had no license and was not qualified in capitalization and experience.
* Octa Builders didn't give a performance bond.
Those, plus the legal infirmities of the land swap the City entered into with Cebu Technological School so as to obtain the site for the condo. SunStar reported in October 1998 that the city legal officer found out that the exchange of lots was not approved by Commission on Audit, with the news report considered as complaint that led to the Visayas ombudsman investigation and filing of information before the Sandiganbayan.
NOT ENOUGH. The Sandiganbayan ruling provided a tutorial of sort on how prosecution could fail. It found no evidence or the lack of it, not enough to send anyone to jail.
The Second Division led by its chairperson Oscar Herrera Jr., in its 16-page ruling, said, among others:
 Cabrera's participation was limited to his presence at City Council sessions that authorized the contract with Octa Builders and appropriated P28 million for the project. The Sanggunian, the decision said, decided as a collegial body to exchange lots for the site of the condo, direct the payment, and authorize then mayor Garcia to sign the contract.
The minutes of the Sanggunian sessions didn't even show that Cabrera acted as member of the bids and awards committee, the ruling said. When he, as acting mayor at the time, signed the deed of conveyance for the condo, the deal was already forged between the City and the contractor.
 Ombudsman prosecutors presented documents on the transactions but the documents by themselves didn't show the "manifest partiality" and the "bad faith." The papers were not sufficient, the Sandiganbayan said. There was no proof the contract was "grossly disadvantageous" to the City.
The prosecutors either didn't have the evidence or they did their job poorly. The Sandiganbayan didn't say that but its multiple references to the failure of evidence tells the public why.
'INORDINATE DELAY.' The "radical relief," first adopted by the Supreme Court in Tatad vs Sandiganbayan, would dismiss a criminal complaint against an accused "due to the delay in the termination of the preliminary investigation."
It has let off the hook a number of public officials, including a few from Cebu, who were charged with for corruption. In 2018 though, in People vs Sandiganbayan, the SC abandoned the formula that included fact-finding investigations in determining inordinate delay. It's no longer "mere mathematical reckoning" but "through examination of facts and circumstances surrounding the case." The prosecution has to explain the delay and show that the accused person or persons weren't prejudiced.
WHY NOT FOR CABRERA. Ex-councilor (1992-1998) Holganza's motion to dismiss on the ground of inordinate delay was granted September 30, 2016; ex-mayor (1995-2001) Garcia's own motion, on June 22, 2021.
Ex-councilor Cabrera said he "repeatedly" filed the same pleadings but his motions were rejected by the anti-graft court "on procedural grounds." His evidence on inordinate delay comprised a big part of his defense, arguing that the charge against him should've been dismissed as he and co-accused Garcia and Holganza were "similarly situated."
Probably Cabrera could've been cleared on the basis of inordinate delay, but he got something better because he was acquitted on something more: there was court finding of no "evidence beyond reasonable doubt" against him. But then the reason Cabrera was acquitted could've applied to his co-accused too.
EXPLAINER: Absence or lack of evidence acquits ex-councilor Rodolfo Cabrera on Cebu City P28-M condo project. Taking part in Sanggunian sessions, signing deed as acting mayor 'not enough evidence.' Earlier, same charges vs Alvin Garcia, Rico Holganza dropped for 'inordinate delay.'
CEBU. Former Cebu City councilor Rodolfo Cabrera (left) and the first page of the Sandiganbayan decision. (Contributed)
June 30, 2022
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