Seares: Supreme Court knocked down Sandiganbayan finding of 'guilty' in P2.7M case against Ace Durano. Timing in release of rulings, other takeaways from acquittal of ex-tourism chief.

Ace Durano (right) and seals of the Supreme Court and Sandiganbayan
Ace Durano (right) and seals of the Supreme Court and Sandiganbayan

[] Gloria Arroyo appointee Ace Durano, with five co-accused, was convicted in November 2021, which Sandiganbayan affirmed in January 2022, three months or so before the May 2022 election where he ran for governor against Gwen Garcia.

[] Governor Gwen, counting political leaders in Cebu island who support her leadership, said ´"All, except Mike Rama and the Duranos"

[1] DIAMETRICALLY OPPOSED FINDINGS of Supreme Court and Sandiganbayan. Many Cebuanos cheer the decision of the Supreme Court, announced Wednesday, May 15, 2024, acquitting Cebu's native son, former tourism secretary Joseph Felix Mari "Ace" H. Durano, and five others accused of graft over a P2.7 million contract on the design of wall calendars in 2008.

Reacting to the SC ruling, Ace Durano -- tourism secretary from November 30, 2004 to June 30, 2010, under then President Gloria Arroyo -- said, "I had faith in the SC to see through the baseless accusation."

Still some people, especially lawyers and students of law monitoring high-profile cases, must wonder how, on one side, the Ombudsman prosecuting the case and the Sandiganbayan, conducting the trial, and, on the other side, the Supreme Court (SC) could've been so squarely opposed on their respective findings .

The anti-graft agency investigated the complaint and filed the case after finding probable cause while the anti-graft court looked closely at the evidence during trial and convicted the accused based on law and evidence.

[2] PROSECUTION'S 'FAILURES.' The SC cited these failures of the prosecution, which apparently the Ombudsman prosecutors and the Sandiganbayan did not see, or saw differently:

(a) Failure to present proof that Durano and co-accused "gave unwarranted benefits, advantage or preference through manifest partiality and/or gross inexcusable negligence."

(b) No allegation or proof that the procurement was overpriced.

(c) No allegation or proof that Durano and co-accused personally benefited from the project.

"All told," the SC said, "no proof beyond reasonable doubt" that the accused committed the crime. The elements of the crime charged were "not proved beyond reasonable doubt."

[3] DURANO'S 'FAILURE.' Compare the "failures of the prosecution" recorded by the SC with the "failure" of Ace Durano and the other accused, as noted by the Sandiganbayan, in defending the violation of the procurement law.

The Sandiganbayan in convicting Durano and co-accused said that even if the case were an exception to the Procurement Law, Durano "failed to prove that proprietary rights already existed at the time they contracted the services of PDP Digital and even if the direct contracting was proper, he and the other accused miserably failed to comply with the conditions and procedure."

But then the SC ruled that it was a "mere" violation, which to the SC wasn't a crime of corruption. And the high court is the final decider.

[4] A VIOLATION BOTH COURTS AGREED ON. The Sandiganbayan and the SC agreed on one violation of Ace Durano and co-accused: namely, violation of the Government Procurement Law (GPRA). The difference is that the high court, deciding the appeal from the anti-graft court, wouldn't consider it a crime.

The Ombudsman filed on March 22, 2019 an information with the Sandiganbayan against Durano et al. for conspiring with Department of Tourism officials in the BAC or Bids and Awards Committee "to give unjustified benefits" in a 2008 project for the "conceptualization and development" of calendars by contracting, without bidding, PDP Digital.

On November 26, 2021, the Sandiganbayan convicted Durano -- with tourism officials Oscar Palabyab, Grace Yoro, Eduardo Jarque Jr., Evelyn Cajigal, and Adriana Flor who also served in the BAC -- for violation of Section 3 (e) of the Anti-Graft and Corrupt Practices Act (Republic Act 3019), which "partiality to supplier and negligence" amounted to. The sentence: six years and a month to 10 years in jail and perpetual disqualification from public office. On January 18, 2022, the anti-graft court rejected the motion for reconsideration of the accused, paving the way to their appeal to the SC.

All the accused, said the Sandiganbayan in affirming the conviction, "grossly disregarded the law and were remiss in their duties by not observing or even attempting to observe the objectives" of the procurement law. That was "clearly established and even admitted by Durano et al that they didn't follow the GPRA."

That was big to the Sandiganbayan but obviously not to the SC, which called the lack of bidding "a mere violation." The high court leaned instead on the "absence of proof beyond doubt," which meant an essential element or elements of the crime were not proved.

[5] TIMING THEN, TIMING NOW. The SC decision acquitting Ace Durano and his co-accused was reportedly promulgated January 22, 2024 but released to the media on May 15, 2024. From promulgation to announcement, that took 114 days.

In contrast, the Sandiganbayan Seventh Division convicted Ace Durano et al. on November 26, 2021, with its news released to the media on December 6, 2021. That took 10 days. On January 18, 2022, the court resolved to reject Durano et al.'s motion for reconsideration of the "guilty" ruling, which it released to the media on February 22, 2022, or in 35 days.

Compare the releases of the SC acquittal with the Sandiganbayan conviction and resolution.

This is not just about speed in publicity; more relevant, how it would affect people's decision-making. The conviction mattered more to the election then, which was in May 2022, than the acquittal in May this year. There were elections in May two years ago, in which Ace Durano was a candidate for governor. The next election is still a year away, in May 2025.

It can't be measured though how the bad news on Ace Durano barely three months before the election made a difference on poll numbers. Obviously though, a news of acquittal or conviction wouldn't have affected much the result as Durano lost heavily to Governor Gwen Garcia in the 2022 race for governor. An ABS-CBN Halalan tally recorded Garcia with 1,478,436 votes over Durano's 341,455 or a plurality of 1.136 million-plus.

[6] NO CRY ABOUT POLITICS. Along with the matter of when to release the decision or resolution -- which could tarnish an election candidate's reputation and hurt chances of winning (#3 above) -- is the accusation of politics.

In late 2021 and early 2022, after news of conviction was released, Ace Durano complained of "political motive," although he didn't specify where it worked, in the Sandiganbayan decision or in the timing of its announcement of rulings. Media watchers noted that basing on court practice, the anti-graft court's decision or resolution at the time, running in regular course, wouldn't have been publicized until after the May 2022 elections.

[RELATED: Explainer: Ace Durano convicted for partiality to supplier, negligence," SunStar, February 22, 2022]

Ace Durano wouldn't have any reason to gripe about the SC ruling that gives a clean bill of health on his tourism department stint. "I had faith" in the high court, he said.

[7] SQUELCHING SPECULATION OR CHARGE OF TAMPERING with the outcome or flow of justice is apparently not being addressed directly. And it may not be, even with another election looming in the next 12 months.

Should the result of a case against an election candidate, involving morality or integrity, be released close to the date of the election? Good or bad for the accused running for public office, must its announcement be put off until it couldn't influence the outcome of the race? May be worth discussing in judiciary's top ranks.

It took the SC more than a hundred days after promulgation to announce the acquittal of Ace Durano but it took the Sandiganbayan only 10-35 days, close to election day, to release the decision and resolution convicting him.

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