By Kit BagaipoThe Court of Appeals 20th Division upheld the decision of the Visayas Ombudsman suspending two top regional officials of the Environmental Management Bureau (EMB) for three months without pay.
In a 19 page ruling penned by Associate Justice Pampio Abarintos, chairman of the CA 20th Division based in Cebu City, EMB 7 Regional Director Bienvenido L. Lipayon and William P. Cunado, OIC Chief, Environmental Impact Assessment Division (EIAD)-EMB 7 were slapped with a three month suspension without pay by the Visayas Ombudsman after being found administratively guilty of Misconduct.
The case stemmed from a criminal complaint for Violation of the Anti Graft & Corrupt Practices or RA 3019 and an administrative complaint for Misconduct and Gross Dereliction of Duty filed at the Visayas Ombudsman by Dr. Jose G. Borja against high ranking EMB officials and Frederick Ong, president of BQ Corporation.
The complaint revolved around the alleged anomalous approval of the application for ECC of BQ corporation for their controversial reclamation and warehouse project located in Lower Grupo St., Tagbilaran City.
Petitioners Lipayon and Cunado elevated the case to the CA for review and issuance of TRO and writ of preliminary injunction assailing the findings of probable cause by the Ombudsman for grave abuse of discretion amounting to lack or excess of jurisdiction.
The Visayas Ombudsman headed by Deputy Ombudsman Primo C. Miro recommended the filing of criminal charges against Lipayon, Cunado and Ong for violation of Sec. 3(e) of RA No. 3019 even as the two top DENR officials were found administratively guilty of Misconduct and were ordered suspended for three months without pay.
The hearing on the criminal aspect of the case is ongoing at the sala of the Mandaue RTC, Branch 28. Accused Bienvenido Lipayon, William P. Cunado and Frederick Ong, President of BQ Corporation all posted bail.
In his petition, Cunado denied any wrongdoing while invoking good faith and did not act with manifest partiality nor committed inexcusable negligence when he recommended approval of BQ,s application for an ECC.
Meanwhile, Lipayon anchored his defense on the Arias Doctrine where, as head of office, he had every right to rely to a reasonable extent on the good faith and technical recommendation of his subordinates who are in the best position to evaluate BQ's ECC application. He further insisted there were no indications that BQ's reclamation and warehouse projects generated strong public opposition or irregularities being committed.
Both petitioners claimed their right to due process were violated and questioned the Ombudsman power to impose suspensions.
The Court found no merit in petitioners contention.
On the issue of lack of due process, the Court pointed out that the demands of due process were sufficiently met when petitioners were given more than enough opportunity to submit counter affidavits and move for reconsideration on the Ombudsman's decisions.
The Court added that as to whether the Office of the Ombudsman has the power to impose the penalty of suspension, the Supreme Court has answered in the affirmative in the the case of Ledesma vs CA, G.R. No. 161629, July 29, 2005, 465 SCRA 437.
The ruling sharply rebuked Cunado for completely disregarding the negative findings of Christopher Salcedo, case handler of BQ's ECC application. The court was also aghast that Cunado "without rhyme and reason or legal justification" and "without much ado"
recommended the approval of BQ's application to Lipayon.
In the case of EMB Regional Director Lipayon, the court impressed on the petitioner that the issuance of an ECC by the approving official requires discretion, prudence, caution and unbiased judgment. It made special mention that approval and issuance of an ECC is a "matter of public interest".
The ruling took a swipe at the cavalier manner in the evaluation of BQ's application by Lipayon. The court was alarmed that concerns of stakeholders were not fully considered or resolved nor BQ was able to address all the relevant and valid issues raised.
The court further reminded petitioners that social acceptability means "meaningful public participation".
The ruling further emphasized that "environmental laws are not mere suggestions. Violations will bring more environmental problems and catastrophes" It admonished public officials to act with outmost good sense when tasked and empowered to evaluate damaging environmental impacts of proposed projects.
The failure of both Cunado and Lipayon to take the necessary steps to prevent serious lapses and omissions were considered by the court as gross negligence and misconduct.
The ruling upholding the Visayas Ombudsman decision to suspend for three months without pay EMB 7 Regional Director Bienvenido Lipayon and William Cunado, OIC Chief, EIA Division, EMB 7 guilty of Misconduct were concurred by Associate Justices Priscilla Baltazar-Padilla and Stephen C. Cruz.
The decision was promulgated May 25, 2007.
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