“WANT OF PROBABLE CAUSE” was the legal ground given by Assistant Ombudsman for the Visayas Jane Aguilar in dismissing the criminal complaint for corruption filed by Crisologo Saavedra Sr. against former Cebu City mayor Tomas R. Osmeña, with five former councilors and four incumbent councilors, along with President Frederick D. Go of Universal Hotels and Resorts Inc. (UHRI) and four of its directors.
The decision declaring no-probable-cause means no information will be filed with the Sandiganbayan, the anti-graft court. The Ombudsman didn’t find the facts for “a well-founded belief” that a crime has been committed and Tomas Osmeña and 14 others are probably guilty thereof.
With the main criminal complaint based on the Anti-Graft and Corrupt Practices Act, also thrown out by the Ombudsman was the administrative complaint against the 10 elected public officials. Dismissal was due to “lack of substantial evidence.”
More than a year ago, on April 27, 2022, the Ombudsman informed Saavedra his complaint was upgraded for preliminary investigation. The joint resolution dumping that complaint was signed by Visayas Assistant Ombudsman Aguilar on January 3, 2023 and approved by Ombudsman OIC Jose Balmeo Jr. on August 30. It was released only last September 22. News+One secured a copy of the ruling Wednesday, October 18.
ALLEGATION ‘NOT PROOF.’ On the criminal charges, the Ombudsman said the complaint was focused on the alleged “tainting” of the Cebu City-UHRI deal with “manifest partiality, evident bad faith, or gross inexcusable negligence,” which “caused undue injury to the Government and gave unwarranted benefits, advantage or preference” to UHR.
No support to that accusation, the Ombudsman said. The conclusion of complainant Crisologo Saavedra Jr. is a “mere allegation,” which is “not evidence and not equivalent to proof.”
Thus, the Ombudsman cleared Tomas Osmeña, with former councilors Margot Osmeña (the ex-mayor’s wife), Dave Tumulak, Sisinio Andales, Alvin Arcilla, and Eugenio Gabuya Jr. and current Councilors Jerry Guardo, Joy Augustus Young, Mary Ann de los Santos and Franklyn Ong. From the private sector and cleared with the City Hall officials were president Frederick Go and board directors Lance Gokongwei, James Go, Robina Gokongwei-Pe and Patrick Henry Go.
The Ombudsman also saw no “substantial evidence” for Saavedra’s e allegation of “prejudicial” and “unbecoming conduct” of Osmeña with the four ex-councilors and four sitting councilors. The complaint didn’t refute with evidence the presumption of regularity of the official acts of Osmeña and company in the joint venture. In contrast, the respondents submitted “overwhelming evidence” of regularity, on top of the general presumption of regularity of official acts in their favor.
Thus, the Ombudsman also dismissed the administrative charges against Osmeña and eight members of the city legislature and all members of his party Bando Osmeña-Pundok Kauswagan (BOPK) at the time.
‘WHY, CRIS ?’ UHRI ELIGIBILITY, RTC RULING. Whistleblower (by self-proclamation and “accretion” of reputation) Cris Saavedra had some hits but also a number of misses in his advocacy to battle corruption in local government.
His attack on the Cebu City-UHRI joint venture obviously failed. He raised charges that remained allegations because no evidence supported them, or so the anti-graft investigative agency ruled.
In Osmena et al’s “position paper” on the administrative charges, the respondents asked why complainant Saavedra was “assailing the eligibility” of UHRI, which belongs “to one of the most successful conglomerates of the land,” and why at a time the Regional Trial Court had already “put the issue to rest.”
The complaint said UHRI was “disqualified from the start” because the firm “lacked technical and financial capabilities” and didn’t satisfy the Swiss-Challenge requirement of the city ordinance on joint ventures (City Ordinance No. 2154).
The Ombudsman rejected that allegation by citing the Cebu RTC ruling that said “UHRI, as member of the Gokongwei Group of Companies, is without a doubt equipped with the needed technical and financial capability to undertake” the project.
UHRI “more than substantially met the requirements for eligibility,. And -- here’s the “but” -- “albeit not exactly as what the ordinance requires but just as exactly as why the ordinance was enacted in the first place.” The Ombudsman said there was “no legal bar” for the City Council “to adjust” the guidelines “to adapt to a situation not previously contemplated” when the ordinance was adopted.
CITY DISADVANTAGED IN DEAL? THAT, OTHER ISSUES ‘MOOTED.’ Saavedra’s complaint alleged that the sharing under the JVA is “disadvantageous” to the City since it would get a “measly” 10 percent of the profits while the local government’s investment is worth P10 billion.
The Ombudsman didn’t agree, saying the project will increase employment opportunities, real property taxes, local and foreign investments. UHRI, the ruling said, will also supply expertise in running the business, which the City doesn’t have. It also listed other specific amounts the City would be getting, including P1 million a month for “assistance for SRP administration” during the construction work, and specific shares of different rental revenues.
Besides, the Ombudsman said, the issues raised in the complaint were already “mooted by the fact” that the project was already “operational.” Its commercial operations started April 17, 2022 and UHRI’s NuStar Resort and Casino and other facilities opened May 8, 2022.
Before the project's operations, the ruling said, the same issues also were resolved when RTC-23 dismissed the petition assailing the JVA for “utter lack of merit.” The same RTC decision upheld, among others, the validity of City Council Resolution dated April 24, 2013 authorizing the mayor to sign the JVA with UHRI.
CONTROVERSIAL SESSION, RESOLUTION. What largely contributed to the issue’s conversion into a full-blown controversy, even spilling over into the courts, was the manner the City Council resolution of April 24, 2013 was passed.
The resolution, which authorized then mayor Osmeña to enter into a JVA with UHRI, was set aside by the presiding officer as “improper” as the change in house rules -- which had been done to allow the BOPK bloc to revive the earlier-defeated measure -- was to take effect only in fiscal year July 1, 2018-June 30, 2019. How BOPK hurdled the barrier: They convened the Sanggunian (in the Ombudsman’s words, “in an unexpected turn of events”) a few minutes after it officially adjourned that day and, with a new presiding officer (Councilor Tumulak), then passed the resolution.
No matter though. The Ombudsman noted that the disputed City Council resolution was upheld by the RTC. That court, the Ombudsman said, ruled that the questioned City Council sessions cannot be declared irregular as they are “purely procedural in nature” and thus are “cognizable by the proper executive agency mandated by its charter to assist the President” in his general supervision over local governments. Apparently meaning: It won’t look into the validity of the passage of the resolution because it’s the job of DILG or Department of Interior and Local Government.
WHO LOOKED AFTER CITY’S INTEREST? The lawyers for respondents listed in the criminal case included the Sapayan Lim Alvarez & Ligutan Law Offices (SALiGAL Law), for the Osmena couple. The position paper of the respondents -- a 93-page document that must have helped prompt the Ombudsman to describe their evidence as “overwhelming” -- was submitted by SALiGAL Law, with Attys. Amando Virgil D. Ligutan, Sunshine R. Enriquez and Bea Veronica Lee up front.
Attys. Concepcion Maria de los Santos and Steffi Reizza Banaag represented respondents Go, Gokongwei, Go, Gokongwei-Pe, and Go.
The councilors who all belonged (at the time) to Osmeña’s BOPK may have relied on the Osmeñas’ lawyers to protect their interest. Aside from the Osmeñas, among the BOPKs only Councilor Gabuya had a named lawyer: Atty. Ligutan.
No lawyer was listed for Saavedra, the complainant, who, at least in theory, represented the interest of the public, which he supposedly tried to protect. Nobody, it would seem, was there specifically to look after the interest of the City Government, which was not a party in the litigation.