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BQ,
DENR raps
thrown out
A
CRIMINAL complaint filed against the owner of BQ Mall and
two high ranking officials of the Department of Environment
and Natural Resources (DENR) regional office arising from
the construction of a reclamation and warehouse project was
dismissed by a Regional Trial Court in Mandaue City, Cebu.
The complaint was filed by Dr. Jose Borja neighbor of the
Ongs.
The
case of Frederick Ong of Bohol Quality Corp., owner of BQ
Mall, and Bienvenido Lipayon, DENR regional director and William
Cuñado, OIC-division chief of the DENR's Environmental
Management Bureau was thrown out after the court acted on
the Motion to Quash filed by the respondents' lawyer.
The
accused were represented by the Trabajo-Lim Law Office. The
law firm is made up of lawyers Alexander Lim, Myrna Pagsuberon,
Alissa Ann Lim and Aleck Francis Lim.
Charged
for violation of the Anti-Graft and Corrupt Practices Act,
the three were haled to court after they were found to have
violated the provision in the granting of Environmental Compliance
Certificate to a reclamation and warehouse project of Ong.
Lipayon
and Cuñado were indicted for approving Ong's ECC application.
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In
filing the motion to quash, the lawyers of the accused
cited Memorandum Circular No. 2007-08 dated July 13,
2007 issued by the DENR secretary. This order simplifies
the requirements for ECC of non-coverage quoting par.
1 which states: No permits and or clearances by either
national government and local government units shall
be required in the processing of ECC or certificate
of non-coverage application.
They
contended that the order was issued pursuant to Malacañang
Administrative Order No. 42 as a curative measure to
the alarming situation where environmental impact studies
and issuances of ECC's become hostage to the political
whims of elected public officials and has become the
source of abuse and corruption.
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The
respondents' lawyer also argued that since the circular was
meant as a remedial measure to cure defects, it is retroactive.
Citing
Article 22 of the Revised Penal Code, the accused averred
that the provision authorizing the retroactive application
of penal laws favorable to the accused applies likewise to
statutes, administrative rulings, and circular favoring the
accused, and thus, since accused Ong is not a habitual criminal,
the DENR Memorandum circular must be given retroactive effect..
In
acquitting the three accused, the court thru Presiding Judge
Marilyn Lagura-Yap, said it has gone through the allegations
against the three and contrary to the statement of Ombudsman
prosecutor, there was no mention of the alleged misrepresentation
of accused Ong that he had complied with all the ECC requirements.
The
court said it was erroneous to assume the fact of misrepresentation
when it was not even alleged in the information,.
On
the part of accused Lipayon and Cunado, the court said, assuming
of course that what the Ombudsman prosecutor was saying was
correct, the information failed to mention that these two
accused who were responsible government officials of such
fact, which the court thought was essential to prove their
criminal responsibility.
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