Dumaluan v. Sandiganbayan (Third Division)

SPECIAL FIRST DIVISION

[G.R. No. 230323. December 7, 2022.]

DOLOREICH A. DUMALUAN, petitioner, vs.HON. SANDIGANBAYAN (THIRD DIVISION), AND PEOPLE OF THE PHILIPPINES, REPRESENTED BY THE OFFICE OF THE OMBUDSMAN, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Special First Division, issued a Resolution datedDecember 7, 2022which reads as follows:

"G.R. No. 230323(Doloreich A. Dumaluan, petitioner, v. Hon. Sandiganbayan (Third Division), and People of the Philippines, represented by the Office of the Ombudsman, respondents).

Antecedents

By Resolution 1 dated June 10, 2020, the Court affirmed the conviction of petitioner Doloreich A. Dumaluan (petitioner) for violation of Section 3 (f) of Republic Act No. 3019 (RA 3019). 2 He was sentenced to the indeterminate penalty of six (6) years and one (1) month, as minimum, to ten (10) years, as maximum, with perpetual disqualification from public office. 3

To recall, the prosecution averred that Bohol Resort Development, Inc. was the owner and operator of Bohol Beach Club (BBC). On May 25, 2005, BBC through its Assistant Food and Beverage Manager Edgar Millalos (Millalos) and Landholding Department Head Roger Lagumbay (Lagumbay), applied for locational clearance, a prerequisite for issuance of a building permit for construction of the resort's additional facilities. 4 BBC paid the corresponding fees and submitted the required documents 5 to the Municipal Planning and Development Office. 6 Municipal Planning and Development Coordinator Jovencia Asilo (Asilo) clarified that a locational clearance would only be issued if the Municipality had a Comprehensive Land Use Plan (CLUP). At that time, the Municipality had no CLUP yet. Hence, in lieu of a locational clearance, Asilo opined that the local chief executive could nonetheless issue a locational certification. 7

Finding BBC to have fully complied the requirements for the issuance of a locational certification, Asilo endorsed its approval to petitioner as the then local chief executive of the Municipality of Panglao pursuant to Sections 16, 8 17, 9 and 444 10 of the Local Government Code (LGC). Petitioner, nonetheless, did not approve BBC's application, revealing that he had an adverse claim over the property on which BBC sought to construct additional facilities. 11 HcDSaT

Meantime, the Office of the Ombudsman (OMB) ordered petitioner's preventive suspension pending investigation of the case subsequently filed by BBC against him for violation of Section 3 (f) of RA 3019. 12

During petitioner's preventive suspension, Acting Mayor Pedro Fuentes took over and approved the issuance of BBC's locational certification, and subsequently, its building permit. 13 After BBC had completed its project, it applied for a business permit with petitioner following the expiration of the his n preventive suspension. He granted the business permit but excluded from its coverage BBC's newly constructed expansion facilities. 14

In his defense, petitioner countered that he had no authority to issue a locational clearance/certification because this authority belongs to the building official of the Municipality. Too, in May 2005, the Municipality of Panglao had no approved CLUP yet, a pre-requisite for issuance of locational clearance pursuant to Section 3 of Executive Order No. 72 (EO 72). 15 He, nonetheless, admitted that he withheld the issuance of a locational clearance/certification because he owned the property subject of BBC's application and had already filed a case involving the same in court. 16

By Decision 17 dated October 27, 2016, the Sandiganbayan found petitioner guilty of violation of Section 3 (f) of RA 3019 since (1) he was a public officer at the time of the alleged commission of the offense charged; (2) he refused to issue a locational clearance/certification in favor of BBC, claiming that he had an adverse interest over the property covered by the latter's Torrens certificate, which, however, is not a sufficient justification for such refusal; (3) a reasonable time had elapsed since BBC's application without action from petitioner; and (4) as a result thereof, he favored his own interest by protecting his claim over the property. 18

In its Resolution 19 dated June 10, 2020, the Court affirmed petitioner's conviction. The Court opined that petitioner had the duty to approve BBC's application since all the requirements therefor had already been submitted to his office. He nonetheless desisted from doing so since he had an adverse claim on the same property subject of BBC's application. 20

In his motion for reconsideration, 21 petitioner pleads anew for his acquittal. He reiterates that the prosecution failed to prove that he had the authority to issue a locational clearance because the Municipality had no approved CLUP yet as of 2005. 22 Too, he did not have the authority to issue a locational certification in lieu of a locational clearance because there was no statute nor ordinance granting him this power. 23 Neither can this authority be based on Sections 16, 17, or 444 of the LGC in the absence of an existing legislation or ordinance. 24 The Sandiganbayan erred in finding that there is no difference between a locational clearance and a locational certification, the latter having no basis in law. 25 For it is the Housing and Land Use Regulatory Board (HLURB), now constituting the Human Settlements Adjudication Commission, 26 which is the agency empowered to issue locational clearance in cities and municipalities without approved CLUP in accordance with Section 3 of EO 72.

Further, he asserts that he had sufficient justification in refusing to sign the locational clearance/certification because he had an adverse claim on the subject property. 27 He did not intend to gain or benefit from his inaction but only to protect his property interest. 28

Our Ruling

Violation of Section 3 (f) of RA 3019 requires the following elements:

1) The offender is a public officer;

2) The said officer has neglected or has refused to act without sufficient justification after due demand or request has been made on him/her;

3) Reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him/her; and

4) Such failure to so act is for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party, or discriminating against another. 29 DTCSHA

The presence of the first element is undisputed since petitioner was the local chief executive of Panglao, Bohol, and thus a public officer, at the time of the alleged commission of the offense charged.

Petitioner, nevertheless, asserts that the second element is absent, first, he had no authority to act on the application for locational clearance/certification; 30 and second, even granting that he had such authority, his refusal to issue the same was justified. 31

The argument is meritorious.

Section 3 (f) of RA 3019 necessarily requires that the accused public officer must have, under the law, a duty or authority to act on the matter subject of the demand or request. Section 444 of the LGC states that the municipal mayor "shall exercise such powers and perform such duties and functions as provided by this Code and other laws." 32 Thus, the vesture of such authority or duty to act on applications for locational clearance/certification must be found in the LGC itself or in some other law or laws.

Here, both the prosecution and the defense agreed 33 that this authority is found in Section 3 of EO 72 which devolves the authority to issue locational clearances to cities and municipalities with approved CLUP. Too, they admitted that the Municipality of Panglao had no approved CLUP yet in 2005. 34 Thus, petitioner could not have derived from the said law his so-called duty or authority to act on, let alone, approve BBC's application for locational clearance or certification prior to the issuance of such CLUP to the Municipality of Panglao. For that matter, petitioner could not have refused to perform a duty or exercise an authority which did not yet belong to him in 2005.

The People, nonetheless, insists that pending approval of the proposed CLUP, the Mayor of the Municipality of Panglao could already issue a locational certification that BBC's project was appropriate for the land use plan. 35 Apart from this bare claim, however, the People failed to cite any specific provision of law or ordinance as basis for the municipal mayor's so-called transitory authority to issue locational certifications. It merely and conveniently refers to the LGC in general. 36 But the LGC does not empower municipal mayors to issue locational certifications. What it grants them is the power to direct the formulation of the municipal development plan and to implement it after it has been approved by the sangguniang bayan. 37 It does not mention at all anything about the authority to issue locational clearance or certification. At any rate, this authority cannot be simply inferred from the municipal mayor's well-settled distinct authority to issue licenses and permits. 38

Under Section 3 of EO 72, the authority to issue locational clearance resides with the HLURB for municipalities without approved CLUP, viz.:

Section 3. Plan Implementation. — (a) The authority of the HLRB to issue locational clearances for locally-significant projects is hereby devolved to cities and municipalities with comprehensive land use plans reviewed and approved in accordance with this Order. Such cities and municipalities shall likewise be responsible for the institution of other actions in the enforcement of the provisions thereof. For this purpose, they may call on the HLRB and such other NGAs for any legal and technical assistance.

Based on established national standards and priorities, the HLRB shall continue to issue locational clearances for projects considered to be of vital and national or regional economic or environmental significance. Unless otherwise declared by the NEDA Board, all projects shall be presumed locally-significant. x x x 39

Since petitioner had no authority to issue the locational clearance/certification, his refusal to issue the same was therefore justified. In People v. Pallasigue, 40 the Court acquitted the accused of violation of Section 3 (f) of RA 3019, lending credence to his defense of lack of authority to implement the rulings of several tribunals in the absence of a writ of execution. It explained that the alleged irregular or anomalous act or conduct complained of under R.A. No. 3019 must not only be intimately connected with the discharge of the official functions of accused. It must also be accompanied by some benefit, material or otherwise, and it must have been deliberately committed for a dishonest and fraudulent purpose and in disregard of public trust. Thus, the Court ordained that the accused's belief that he does not yet have the authority to implement the rulings does not appear to be an act intended by Congress to be punished under RA 3019.

In Coronado v. Sandiganbayan, 41 the Court acquitted the accused since the record was bereft of evidence that his failure to act was motivated by any gain or benefit for himself or knowingly for the purpose of favoring an interested party or discriminating against another. For it is not enough that an advantage in favor of one party, as against another, would result from such neglect or refusal. The same can be said as regards petitioner here who truly believed that he lacked the authority to act on the request for locational clearance/certification.

As for petitioner's asserted interest over the property which he claimed to have already brought to court for resolution, the same is totally irrelevant to the primordial fact that at the time he was being compelled to act on BBC's application, he did not have yet the authority to do so. For then, such authority remained with HLURB in accordance with Section 3 of EO 72 insofar as those without CLUP yet were concerned such as the Municipality of Panglao.

In light of these considerations, there is no need to further discuss petitioner's other reasons for not acting on BBC's application.

FOR THESE REASONS, the Motion for Reconsideration is GRANTED. The Resolution dated June 10, 2020 is REVERSED. Petitioner Doloreich A. Dumaluan is ACQUITTED in Criminal Case No. SB-11-CRM-0029.

Let entry of judgment be issued immediately. cDCEIA

SO ORDERED." Dimaampao, J., on official leave.

By authority of the Court:

(SGD.) LIBRADA C. BUENADivision Clerk of Court

By:

MARIA TERESA B. SIBULODeputy Division Clerk of Court

Footnotes

1.Rollo, pp. 208-217.

2. Republic Act No. 3019 otherwise known as "Anti-Graft and Corrupt Practices Act."

Section 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

xxx xxx xxx

(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party.

xxx xxx xxx

3.Rollo, p. 76.

4.Id. at 57.

5.I.e., sketch plan, site development plan, locational map, and indorsements from the Director of Panglao Tourism, the Officials of the Barangay, and the Sangguniang Bayan, among others; rollo, p. 60.

6.Id.

7.Rollo, p. 60.

8. Section 16, RA 7160. General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

9. Section 17, RA 7160. Basic Services and Facilities. —

(a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government units shall likewise exercise such other powers and discharge such other functions and responsibilities as are necessary, appropriate, or incidental to efficient and effective provisions of the basic services and facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, the following:

xxx xxx xxx

(2) For a Municipality:

(xi) Tourism facilities and other tourist attractions, including the acquisition of equipment, regulation and supervision of business concessions, and security services for such facilities;

xxx xxx xxx

10. Section 444, RA 7160. The Chief Executive; Powers, Duties, Functions and Compensation. —

(a) The municipal mayor, as the chief executive of the municipal government, shall exercise such powers and performs such duties and functions as provided by this Code and other laws.

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall:

(1) Exercise general supervision and control over all programs, projects, services, and activities of the municipal government, and in this connection, shall:

xxx xxx xxx

(ii) Direct the formulation of the municipal development plan, with the assistance of the municipal development council, and upon approval thereof by the sangguniang bayan, implement the same;

xxx xxx xxx

11.Rollo, p. 60.

12.Id.

13.Id. at 62.

14.Id. at 58.

15.Id. at 18 and 65.

16.Id. at 67.

17.Id. at 53-82.

18.Id. at 70-76.

19.Id. at 208-217.

20.Id. at 214.

21.Id. at 222-276.

22.Id. at 241.

23.Id. at 252.

24.Id. at 247.

25.Id. at 255.

26. Pursuant to Republic Act No. 11201 or the Department of Human Settlements and Urban Development Act.

27.Rollo, p. 273.

28.Id. at 274.

29. See Lacap v. Sandiganbayan, 811 Phil. 441, 453 (2017).

30.Rollo, p. 247.

31.Id. at 273.

32. Emphasis supplied.

33.Rollo, p. 72.

34.Id.

35.Id.

36.Id. at 35.

37. Section 444, par. (b) (1) (ii), RA 7160.

38. Section 444, RA 7160. The Chief Executive; Powers, Duties, Functions and Compensation. — x x x

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall:

(3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agro-industrial development and country-wide growth and progress, and relative thereto, shall:

xxx xxx xxx

(iv) Issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance;

xxx xxx xxx

39. EO 72; emphasis supplied.

40. G.R. Nos. 248653-54, July 14, 2021.

41. 296-A Phil. 414 (1993).

n Note from the Publisher: Copied verbatim from official document.