The Sandiganbayan rules that Gopilan only hired the contractors as suppliers and not as builders
ANTI-GRAFT COURT. Facade of Sandiganbayan in Quezon City. File photo by Jansen Romero/Rappler
The Sandiganbayan acquitted retired brigadier general Cesar Gopilan of graft charges in connection with irregularities in the military's P9.5-million school building project in 2002.
The anti-graft court said the prosecutors failed to show proof that Gopilan, who was then chief engineer of the Armed Forces of the Philippines (AFP), hired two contractors to build the school without public bidding or a written contract.
In an 81-page decision by the 5th Division dated January 25, 2017 and released to media on Wednesday, February 8, the court said the evidence from the prosecutors only showed that the contractors were hired to supply construction materials, and not to construct the schools.
The disbursement vouchers presented for the supply of materials, according to the court, were supported by necessary documents required by law.
In the information filed by the Ombudsman in 2005, they alleged that Gopilan conspired with private defendants Elmer Aytona of Edibok Construction and General Merchandise, and Jorge Javier of J. Javier Construction Trading by awarding them the contract to build the school without going through public bidding.
However, the court said there was no evidence that the two companies were hired, or that the two companies actually built the school.
Noting the lack of any receipts or documents connecting the two companies to the actual construction, the court asked: "If there were indeed such extra work done by the accused Aytona and Javier, how were they paid for their work?"
Insufficient evidence
"Weighing all the evidence offered, the prosecution has failed to prove, substantiate or carry on the required burden of proof, as to warrant a guilty verdict in this case. The evidence of the prosecution is insufficient to prove beyond reasonable doubt the guilt of all accused," the court ruled.
The prosecutors alleged that Edibok Construction was hired to build 34 school buildings, while J. Javier Construction was hired to build two, both at P250,000 per structure.
The AFP's program was under the PGMA School Building Project.
Aytona's Edibok was allegedly paid P8.5 million while Javier's J. Javier Construction Trading received P500,000.
However, the prosecutors alleged, the schools were found to be poorly built and some were even incomplete.
The court said it cannot penalize the defendants for the poor construction of the buildings when there was no proof they were the builders.
"The Court has to look squarely on the evidence vis-à-vis the alleged act or acts complained of as constituting the offense in this case. It follows the basic tenet guaranteed under the Constitution that in all criminal prosecutions, the accused shall be informed of the nature and cause of the accusations against him. To do otherwise would be tantamount to a denial of the accused’s right to due process," it pointed out.
Also included in the information is the accusation that instead of using good lumber, the builders used coco lumber which resulted in the poor construction.
Still, the court said, the defendants cannot be faulted because the "problem or purported irregularity devolves on the construction itself and not for the supply of the subject materials."
"The accused cannot be convicted for acts which were not alleged in the Information. The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights," the Sandiganbayan said.
Apart from Gopilan, Aytona and Javier were also acquitted of the charges.
Following the acquittal, the bail bonds they posted will be released and the hold departure orders against them will be lifted.
http://www.rappler.com/nation/160867-army-engineer-acquitted-graft-case
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