EXPLAINER: Ace Durano convicted for 'partiality to supplier, negligence,' not bribery or overpricing. Politics, defenses of accused top 7 takeaways on Guv Gwen rival's brush with the law.

SunStar File
SunStar File

WHAT HAPPENED. The Sandiganbayan has rejected the motion for reconsideration of its ruling convicting former tourism secretary Jose Mari "Ace" Durano and five other officials for corruption in connection with a P2.7-million wall-calendar project of the Department of Tourism (DOT) in 2008.

The anti-graft court used the same line that dispatches many "motions for recon": nothing new, "mere rehash of the basic issues."

The January 18 ruling -- released Monday, January 21 -- paves the way for Durano and the other accused to appeal to the Supreme Court. Last November, the anti-graft court Sandiganbayan sentenced Durano and five other co-accused, including then DOT undersecretary Oscar Palabyab, to six years and a month in jail and perpetual disqualification from public office.

Seven takeaways on the news event that might affect Ace Durano's run for the governor's seat against reelectionist Gwen Garcia:

[1] 'POLITICAL MOTIVE.' Ace Durano said he was "shocked" by the November ruling. On the "recon" denial, he said it's "part of the process"; it's not yet "final and executory" and they can and will appeal the decision.

Durano said the anti-graft court's November 26, 2021 decision finding him guilty of corruption was "politically motivated." Two other cases filed against him, he said, were dismissed "but when I announced I'll be running for governor, the decision of this case suddenly crops up. It's clear to me who's behind this."

Governor Garcia, Durano's rival in the Capitol race, is obviously the "who's behind" referred to by Ace. Gwen said she was not even the governor yet when the case was filed. Before her present term that started in 2019, she held the position of governor for nine consecutive years, from 2004 to 2013.

Check out the dates. The order to print the DOT 2009 calendar was given to PDP Digital Inc. by Ace Durano on or about October 17, 2008. The information or charge was filed with the Sandiganbayan on September 22, 2017 against Durano and company by the Ombudsman investigation and prosecution officer. The anti-graft court found "probable cause," for which reason it issued on April 22, 2019 a hold-departure order against the accused.

The charge of "politically motivated" as standard reply to an accusation of corruption is not new. Just as politicians tend to use the prosecutorial weapon during the election season, those being accused answer routinely with "politically motivated." Senate aspirant JV Ejercito in 2012 drew the ire of the Duranos when he said the charges against then governor Gwen were "possibly one of the conditions imposed by the Duranos during their signing of an alliance with the Liberal Party."

[2] IMPACT ON CANDIDACY. The name of Ace Durano remains on the ballot. Votes for him will be credited to his tally. If he wins, the Sandiganbayan conviction won't stop his proclamation. Only if he loses in the Supreme Court and the decision becomes "final and executory" will the penalty of perpetual disqualification be enforced against him.

But it provides, even now, ammunition against Durano in the campaign for votes.

[3] NATURE OF CHARGES. Durano's camp stresses on the charges against Ace being not related to overpricing or bribery and "merely" involves procedure. To the voters and the rest of the public, that's supposed to lessen the offense, more of granting a favor than enriching themselves.

The accused were found guilty of favoring PDP Digital by violating the law on procurement. They resorted to direct contracting and did away with the required bidding. Under Section 3 of the Anti-Graft and Corrupt Practices Act (Republic Act #3019 of 1960), subheaded as "Corrupt practices of public officers," causing "undue injury to any party" or giving "unwarranted benefits, advantage or preference" is done through "manifest partiality, evident bad faith or gross inexcusable negligence."

[4] PROCEDURAL SHORTCUT. A common defense of the accused was that bidding was not required since the wall calendars involved proprietary rights as the concept and the materials belonged solely to PDP Digital. The accused said their "resort" to direct contracting was valid and legal.

Prosecutors debunked that by presenting names of other suppliers that could've provided the same idea and secured similar materials. (It wouldn't help that PDP Digital may be Cebu-based and Cebuano-owned.)

Even if the case fell under the exception to the procurement law, the Sandiganbayan noted that Durano "failed to prove that propriety rights already existed at the time they decided to contract the services of PDP Digital" and even if the direct contracting was proper he and the co-accused "miserably failed to comply with the conditions and procedures" required.

[5] DURANO 'NOT BEING PART OF IT.' Ace Durano testified that the marketing teams handled such projects as the 2009 wall calendar, he was not involved in details of management, and he "just looked at signatures and satisfied himself that it went through the necessary offices before it reached his desk."

Ace assumed that those under him were doing their job. As to functions like reviewing projects, the task was "delegated to the proper offices in the department."

He got some serious verbal reprimand when the Sandiganbayan "emphasized" that Durano was not just the tourism secretary, as HOPE or head of the procuring entity, he was the "approving authority" and thus "duty-bound to know, understand and faithfully his functions...," a duty that "Durano boldly omitted to perform."

[6] IT'S ABOUT MANAGEMENT ERROR. While the case doesn't dramatize the usual greed for money, the Sandiganbayan harps on the need for public officials to follow the laws on procurement.

People aren't sure how the Supreme Court will decide the case when it reaches the high court. Is "bold omission" equivalent to "reckless negligence" that the corruption law punishes? Are they not just administrative lapses?

But Ace Durano as head of office seemed to get a serious lecture on management skill from the Sandiganbayan ruling.

[7] RULING'S FINAL NOTE. While "there are laws protecting public funds to ensure (their) proper use," the Sandiganbayan said, "we should be wary of imposing upon specialized agencies our opinions on how these funds can and should be utilized to the point of unintentionally tying the agency's hands and possibly even preventing them from exercising their mandate properly and effectively ..."

The writer of the decision, Seventh Division chairperson Ma. Theresa Dolores Gomez-Estoesta, must refer "we" to judges and COA auditors.


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