BORACAY ISLAND – Charges for graft and corruption, plunder, and violation of environmental laws were filed against 16 officials of Malay, Aklan along with 10 others before the Office of the Ombudsman-Visayas Tuesday.
The complaint stemmed from the passage of the Public-Private Partnership between the Municipality of Malay and ECOS Sanitary Landfill and Waste Management Corporation (ECOS) on the hauling of solid waste and the management and operation of Malay sanitary landfill.
Filed by Boracay-based journalist Noel Cabobos, the complaint alleged that the PPP contract “is null and void at its inception and therefore has no force and effect or is equivalent to nothing.”
“First and foremost, said the contract is peppered with defects and onerous provisions that go against the law and the interest of the government and the people of Malay. The Commission on Audit (COA) findings, for one, is a testimony that the very essence of a Public-Private Partnership has been twisted to suit their whims and caprices and with intent to gain,” the complaint stated.
Cabobos referred to the COA Audit Report released on Feb. 12, 2019 indicating that from November 2018 to January 2019 alone, the Municipality of Malay paid ECOS P51,713,780.72 for garbage hauling services, mainly from Boracay Island, as well as the maintenance of the town’s Sanitary Landfill in the hilly portion of Kabulihan village in Malay.
“Disbursements on hauling of Solid Waste and the Management and Operations of an Eco-tourism, Engineered Sanitary Landfill undertaken as a Public-Private Partnership (PPP) activity should have been under Republic Act 9184, otherwise known as the Government Procurement Act, thus, casting doubt on the propriety, validity, and correctness of the transactions,” according to the COA report penned by State Auditors Merle Maglunob and Loda Ocheda.
The COA report also stressed that instead of the municipality paying ECOS, it should have been “responsible in financing for operation and maintenance of the particular undertaking normally without cost for the LGU.”
“PPP should have been a tool to minimize government spending. It should address the limited funding resources for local infrastructure or development projects for the LGU thereby allowing the allocation of public funds for other local priorities,” the report said.
The COA further stated that disbursements made by the local government of Malay in favor of ECOS can be construed as “simple procurement of services and should follow the Revised Rules and Regulations of RA. 9184”, a provision that the complaint averred to have been violated by the contracting parties.
The charges in the Ombudsman suit include plunder and violations of the Ecological Solid Waste Management Act, Clean Water Act, the Toxic and Hazardous Wastes Law, Anti-Graft and Corrupt Practices Act, and the Code of Conduct of Public Officials and Employees.
Also included in the charge is the alleged violation of the Public-Private Partnership Guidelines and Procedures or the Malay Municipal Ordinance No. 295 otherwise known as “An Ordinance Adopting Guidelines and Procedures for Entering into Public-Private Partnership Agreements with the Municipality of Malay.”
The respondents in the complaint are former Malay mayor Ceciron Cawaling, former vice mayor Abram Sualog along with former SB members Frolibar Bautista, Dante Pagsuguiron, Jupiter Aeldred Gallenero, Lloyd Maming, Maylynn Graf, Danilo Delos Santos, Julieta Aron, Natalie Paderes, and Dalidig Sumdad.
Also charged were acting vice mayor Niño Carlos Cawaling, and SB members Nickie Cahilig, Junthir Flores, Ralf Tolosa, and Christine Hope Pagsuguiron.
ECOS incorporators who were also charged in the complaint – Oliver Zamora, Richard Chan Lek, Miguel Anthony Tiu, Corazon Zamora, and Christine Aldeguer.
Also charged are various heads of offices of the town, who, according to the complaint, were part in “machinating” the passage of the contract – Executive Assistant IV Edgardo Sancho, Municipal Legal Officer Melanio Prado, Jr., Municipal Treasurer Dediosa Dioso, Municipal Accountant Herminigildo Javier Jr., and Municipal Budget Officer Anneli Sespeñe.
Daily Guardian is still trying to reach the respondents for comments.
The complaint claimed that former officials of Malay and some employees “connived with each other and took advantage of their official position and influence to unjustly enrich themselves at the expense and prejudice of the government, people of Malay, and the tourists.”
It also accused the respondent officials and employees of receiving kickbacks or percentages in connection with the passage of the “anomalous contract” which, to date, has rolled off an aggregated amount of at least P100 million and “therefore an act liable for the crime of plunder.”
Meanwhile, the complaint said that since current officials headed by Mayor Frolibar Bautista continued to honor the contract with ECOS, they must also be equally liable in the violation of various environmental laws under ECOS management.
It cited the complaint of Punong Barangay Antonio Benignos of Brgy. Dumlog who called the attention of the Sangguniang Bayan of Malay on January 4, 2019 to complaints of “foul odor” emitted by ECOS trucks as well as the alleged contamination of the Malay river due to the operation at the town’s sanitary landfill under the ECOS management.
More related complaints were also reported but these fell on deaf ears. The other complaints filed by a certain Susan Briones of Brgy. Dumlog even claimed a rash of skin diseases suffered by locals who waded in the Malay River as well as the disappearance of shrimps, snails, and other river species that used to inhabit the river.
On Jan 28, 2020, the Manoc-manoc Elementary school suspended classes due to “toxic stench” leaking from the MRF site managed by ECOS. The odor caused students and teachers to vomit and faint.
The incident forced Malay MENRO officer-in-charge Mariane Salvacion to call the attention of ECOS to immediately address the issue citing hazards to the residents and the environment as well.
“This emission of foul odor, according to our SWM personnel, was due to the stockpiled (sic) of wastes that are being mixed during the hauling operation. Based on the verbal report of our ground team, ECOS’s truck collection process was ‘halo-halo sa isang truck’ even though it was segregated at the source and the collection point and it was dumped at Manoc-manoc Staging area in the same way. If this will be our ways every time, it will impose (sic) problem especially from the biodegradable waste (food waste) not just to the people on the island but also the people in the mainland since the garbage are (sic) being hauled to our Sanitary Landfill at Kabulihan, Malay,” Salvacion said in a letter to ECOS general manager Miguel Anthony Tiu.
VIOLATING OWN ORDINANCE
In the complaint, Cabobos stressed that former and incumbent Malay officials violated Municipal Ordinance No. 295 when the PPP contract was approved in 2018.
He claimed that various provisions such as the technical requirement and the financial capability clause of the Ordinance were not met but the contract was still approved.
“It is surprising to note that despite the absence of the required documents as specified in the Ordinance, the contract with ECOS pushed through and without any hitch whatsoever,” he added.
“For a contract of this magnitude, the law is keen on track record as a threshold for the capacity of contracting parties in entering into a valid agreement. Which, in this case, the respondent ECOS was not able to demonstrate.”
The alleged “failure of ECOS to provide eligibility requirements at the very start should have been the ground of the contract revocation.”
“But on the contrary, it was continued by the current administration and has even paid ECOS millions of pesos recently,” the complaint added.
Apart from COA findings, the local government of Malay failed to coordinate with the National Economic and Development Authority (NEDA) in approving the contract “which makes it bereft of the requisites that would make it legally binding.”
NEDA serves as a repository of information on the status of PPP projects, copies of unsolicited proposals and other related documents received by the implementing Agencies or Local Government Units, and it is the agency that assists Local Government Units in the preparation and development of projects.
In his prayer, Cabobos asked the Ombudsman to declare the PPP contract null and void and for the immediate suspension of the respondents upon the commencement of the investigation of the case and eventually their dismissal and perpetual disqualification from public office.
Also, he asked the Ombudsman to”
-require all Punong Barangay of the Municipality of Malay for the establishment of an appropriate Materials Recovery Facility (MRF) as mandated by RA 9003; and
-order the DENR to spearhead the clean-up and restoration of the Malay River and its tributaries along with the establishment of an appropriate Sanitary Landfill and/or adequate solid waste and liquid disposal as well as other alternative garbage disposal system such as reduce, re-use, recycling of waste, or conversion of waste into energy or productive materials.
Moreover, he also asked the Ombudsman to order ECOS the refund of millions of pesos it received from the Municipality of Malay based on the account of the PPP contract being void ab initio and for the latter’s total disregard of the environment of the Municipality of Malay.