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A
prominent Chinese businessman here and two top regional officials
of the Department of Environment and Natural Resources (DENR)
are cleared of graft charges by the Mandaue City Regional
Trial Court.
DENR
Region 6 Director Bienvenido Lipayon and William Cuñado,
division chief of the Environmental Management Bureau (EMB)
Region 7 were accused of conspiring with Frederick Ong, president
of the Bohol Quality Corporation, by approving and issuing
an Environmental Compliance Certificate (ECC) to the latter's
reclamation and warehouse project without complying with necessary
supporting documents.
Lipayon
(who was then regional director for Central Visayas) and Cuñado,
together with Ong, were charged for violating Sec. 3(e), RA
3019, also known as the Anti-Graft and Corrupt Practices Act.
The
complaint was filed at the Ombudsman Visayas by Dr. Jose Borja.
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The
ECC was issued to Bohol Quality Corp. on March 5, 2003
even without resolutions from the barangay council of
Poblacion II and the Sangguniang Panlungsod approving
the project.
The
reclamation project was made along the shorelines of
Sitio Ubos, Poblacion II, this city.
The
Ombudsman Visayas filed the criminal complaint at the
Mandaue RTC.
Last
December 7, 2007, respondent Ong, through counsel Atty.
Alexander Lim, filed a Motion to Quash at the Mandaue
RTC.
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The
respondent argued that on July 13, 2007, then DENR Sec. Angelo
Reyes issued Memorandum Circular No. 2007-08 entitled, "Simplifying
the Requirements for Environmental Compliance Certificate
or Certification of Non-Coverage".
The
circular cited that "no permits, and/or clearances by
either national government units shall be required in the
processing of ECC or CNC applications."
Mandaue
City RTC Judge Marilyn Lagura-Yap stated in her ruling that
since the complaint accused the DENR officials of issuing
an ECC without the necessary supporting documents, Memorandum
Circular No. 2007-08 rendered the prosecution's case invalid
or of no effect.
"The
objective of DENR Memorandum Circular No. 2007-08 relates
to the streamlining or simplification of the process of securing
an ECC or a CNC by removing the requirement of permits and
clearances issued by the government agencies," the ruling
stated.
Judge
Yap also noted that the DENR circular "refers to an amendment
of existing procedure on securing an ECC and CNC, hence, procedural
in character and can be applied retroactively to cover acts
committed before such circular took effect."
"The
principle that a later procedural law can be given retroactive
applications is not violative of any right of a party who
may feel adversely affected." The ruling stated that,
"retroactivity of law which are remedial in nature is
not prohibited."
Judge
Yap also cited Art. 22 of the Revised Penal Code which states
that "penal laws shall have retroactive effect in so
far as they favor the person guilty of felony, who is not
a habitual criminal."
Finding
merit in the Motion to Quash, the court dismissed the graft
case filed against Lipayon, Cuñado and Ong.
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