Malampaya and Art 12 of PH Constitution

Malampaya and Gerry Ortega

The $4.5-billion Malampaya Project is a partnership between the government and Shell to extract natural gas from the waters in the area of Palawan. Based on Presidential Decree 910, the proceeds generated by the government from the Malampaya Project are to be used for energy-related projects but they could also be used for other purposes approved by the President. Reports say that the proceeds now total P170 billion, with an estimated P25 billion spent during the Arroyo administration, while P15 billion has been used under President Benigno Aquino III.

Long before allegations came out that around P900 million of the Malampaya funds found their way into some of Janet Napoles’ fake non-government organizations (NGOs), Dr. Gerardo “Gerry” Ortega had been incessantly blowing the whistle, so to speak, on the alleged corruption involving Palawan’s share of the Malampaya funds (In 2007, Executive Order No. 683 was issued providing for a provisional sharing  between  the national government and the local government of Palawan whereby the 40 percent share of Palawan in the Malampaya proceeds would be used for development projects in the province. From 2005 to 2010, around 2.9 billion was released to the province) Doc Ortega’s acerbic commentaries did not spare prominent personalities, including former Palawan Gov. Joel Reyes who was eventually accused as the mastermind of the assassination of Ortega. As early as 2011, the Commission on Audit recommended the filing of graft and criminal charges against the former governor and members of the provincial bids and awards committee under his administration for alleged irregularities in the use of nearly P3 billion in Malampaya revenues.

Palawan correspondent Redempto Anda revealed that before Dr. Ortega’s death, he and the slain radio commentator had been working on reports on the corruption involved in the Malampaya funds. He must have stepped on somebody else’s powerful toes; before his death, he had been regularly receiving death threats. His widow Patria Ortega said that on almost daily basis in his radio broadcasts he would ask three officials, then Gov. Reyes, Abraham Mitra and Vice-Gov. Dave Ponce de Leon for an accounting of the province’s share in the Malampaya funds.

Dr. Ortega was given no chance to reveal what he knew about the Malampaya corruption because his life was cut short by an assassin’s bullet. Two years after he was shot dead in the morning of January 24, 2011 while inside an ukay-ukay in San Pedro, Puerto Princesa City, Palawan, justice has not yet been done and the alleged masterminds are still at large.

Recently, the Court of Appeals came out with a resolution denying Secretary Leila De Lima’s Motion for Reconsideration to an earlier decision which declared null and void Department Order No. 710 including the resolution of the second panel of prosecutors and reinstated the earlier resolution of the first panel of prosecutors which dismissed the complaint against Mario Joel Reyes.

In ruling for petitioner Mario Reyes, the Court of Appeals said that in creating a new panel of investigators, the Secretary did not comply with Department Circular No. 70 92000 (NPS Rule on Appeals) which outlines the procedure in handling appeals by the Secretary of Justice from a resolution by the investigating prosecutor.

Does the Court of Appeals’ resolution amount to an acquittal of the Reyes brothers and their co-accused? In my humble opinion, it does not. By its resolution, the CA merely declared null and void the creation of the second panel of investigators and reinstated the resolution of the first panel. There is simply no mention here of an acquittal. In fact, the CA resolution can be appealed to the Supreme Court which can either affirm or overturn the same, unlike in the case of an acquittal which, except under extraordinary circumstances, can no longer be subject of an appeal because of the principle on double jeopardy. Assuming the CA resolution in fact amounted to a dismissal of the case against the Reyes brothers, the Supreme Court said on many occasions that the dismissal of a case during preliminary investigation does not constitute double jeopardy which is proscribed by the Constitution. Preliminary investigation is not part of the trial for which double jeopardy attaches. It is merely inquisitorial; a means of discovering the persons who may be reasonably charged with a crime. Moreover, the accused in this case have yet to plead to the crime charged. In other words, the case against the Reyeses and the other co-accused, contrary to reports, was not killed on its tracks because of the CA resolution.

Will the Supreme Court affirm or overturn the CA decision in the event the Secretary appeals the adverse ruling? In deference to the Supreme Court being the final arbiter on the matter, I am in no position to make a second guess. After all, any such attempt is but futile speculation.  Nonetheless, the final resolution by the SC of the Secretary’s appeal, if ever it comes to that, will determine whether or not this case will see the light of day. We can only hope that any forthcoming resolution/s will be based solely on the merits and not on technicalities. In the meantime, despite the setback brought about by these recent judicial developments, the fight for justice must continue and hope that someday the culprits will be apprehended and finally brought to account for their crime if only to give Dr. Ortega’s family the justice which is theirs as a matter of right.

Facebook:  Dean Tony La Vina Twitter:  tonylavs

source:  Manila Standard

Personal Note:   
ARTICLE XII - NATIONAL ECONOMY AND PATRIMONY, Sec 2 paragraphs 4 and 5:

The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.