BY APPELATE COURT

Suspend order of Dumaluan upheld

THE Court of Appeals (CA) Special 20th Division has lifted the temporary restraining order (TRO) on the suspension issued by the Visayas Ombudsman against Panglao Mayor Doloreich Dumaluan. On the basis of the CA decision, the mayor will have to serve his three-month suspension as meted out by the Office of the Ombudsman-Visayas last December. Unless he will be able to get a Temporary Restraining Order (TRO), this time, from the Supreme court. The 10-page decision, promulgated by the Cebu-based CA Special 20th Division on Sept. 25 was penned by CA Associate Justice Agustin Dizon while Executive Judge Arsenio Magpale and Associate Justice Priscilla Baltazar-Padilla concurred the decision. While Dumaluan initially got a reprieve on his 30-day suspension when he was granted a TRO, the latest decision not only dismissed his petition filed against Deputy Ombudsman for the Visayas Primo Miro who issued the suspension order but also lifted the TRO issued last Feb. 21.

In the same decision, the court also admonished Dumaluan and his counsel “for trying to mislead this Court in declaring that the order of preventive suspension was not duly served on him”. “As pointed out by the private respondents that based on the news reports and petitioner's pronouncement in the media it is clear that he already received his copy of the preventive suspension order and that he is going to contest the same,” the decision noted. Miro issued the suspension against Dumaluan in connection with a complaint filed against the mayor by Councilors Celerino Hormachuelos, Telesforo Mejos, Venzencio Arcamo ang Dennis Hora.

The four councilors accused Dumaluan for violating the National Building Code, the Anti-Graft and Corrupt Practices Act and for Conduct Unbecoming of a Public Official. The complainants alleged that Dumaluan abused his position as mayor when he constructed a restaurant and dive shop within the 20-meter public easement and without the requisite permits in violation of the Water Code of the Philippines and the National Building Code. They also accused Dumaluan of constructing a 28-room resort building without the required permit in violation of the National Building Code and violating the height restrictions for beach front under the PITE Development Guidelines.

Last Dec. 8, 2005, graft investigating officer Alvin Butch Cañares issued the order preventing suspending Dumaluan for three months without pay. The next day, Dumaluan filed his counter-affidavit. On Dec. 13, 2005 , the preventive suspension order attempted to be served to Dumaluan through a letter from Department of Interior and Local Government Regional Director Roberto Abejero directing Gov. Erico Aumentado to cause the immediate implementation of the suspension order.

Dumaluan filed a petition before the CA Special 20th Division assailing the validity of the suspension order and sought and was eventually granted a TRO on Dec. 21 to preserve the status quo and so as not to render moot and academic any action that the court may take. On Dec. 27, the complainants manifested as evidence the Joint Report of Suspension Order to Dumaluan by retired Col. Sancho Bernales and legal officer IV Reynard Namocatcat with the handwritten notation “personally received copy by Mayor Dumaluan but refuse to sign”. They manifested that the suspension order was actually served on Dumaluan “contrary to his claim that there was only an attempt of service.” Consequently, Vice Mayor Pedro Fuertes assumed the position of acting mayor.

Following Dumaluan's urgent motion for the issuance of an order directing private respondents and the vice mayor to respect and abide by the TRO, Fuertes filed a manifestation inviting the court's attention that the suspension order was duly and effectively served upon Dumaluan on Dec. 13. As a result, Fuertes took his oath as acting mayor while Senior Councilor Leonila Montero assumed as acting vice mayor. According to the decision, it does not find any cogent reason to disagree with the judgment of the Visayas Ombudsman “it appearing that the evidence of guilt is strong and that the other essential conditions are attendant”. “Under these circumstances it cannot be said that the Ombudsman acted with grave abuse of discretion in issuing the preventive suspension against the petitioner considering that the latter is the Mayor of Panglao, a high ranking official who might wield his authority over his subordinates or concerned officials to subvert the administrative complaint,” the decision pointed out.

The CA division also noted that while it is settled that the preventive suspension has been served on Dumaluan, it is not clear if it has actually and fully been implemented. “We leave to the Ombudsman the discretion to effect the preventive suspension as it may deem necessary under the circumstances, of course within the limits prescribed by Section 24 of R.A. No. 6770,” the court said. DENR order mocked; Dumaluan still open If the Department of Environment and Natural Resources (DENR) believes it has heard the last on the controversy involving the Dumaluan Beach Resort (DBR), it has a thing coming. Neighbors of the controversial resort revealed that even after the cease-and-desist order (CDO) was served on DBR, it continues to operate although with some modifications.

“The guests are simply made to use a side entrance instead of the main entrance which was padlocked the other week,” a neighbor confided to the Post. This means that while the resort operations may not be as lucrative as before, it has still managed to entertain guests despite the CDO. “This is a mockery not only of the CDO but also of the entire DENR,” another neighbor remarked. It will be recalled that the Department of Environment and Natural Resources (DENR), through the newly created National Anti-Environmental Crime Task Force (NAECTAF), closed the DBR after receiving reports that it continued to defy the CDO.

The NAECTAF, led by Undersecretary Roy Kyamko, served notice that it has considered the possibility of demolishing illegal structures inside the resort. Kyamko's NAECTAF served the closure order after receiving a memorandum issued by DENR Secretary Angelo Reyes last Sept. 15 for the implementation of the CDO. The CDO was issued against the resort for violating environmental laws including the operation without an environmental compliance certificate (ECC). The DBR has also been accused of constructing illegal structures that violate height restrictions and prohibition inside the 20-meter public easement. Dumaluan contested the allegations saying that his application for an ECC was lost by the DENR. He also promised to publish a copy of his ECC but has failed to make good this promise. His claim that the resort had been issued an ECC has resulted in the filing of a case for perjury, falsification, dishonesty and gross misconduct before the Ombudsman (Visayas) by Councilors Cerino Hormachuelos, Telesforo Mejos, Venzencio Arcamo and Dennis Hora. The mayor himself virtually admitted the violations when he made a formal manifestation for voluntary compliance of the terms of the CDO. Contrary to his manifestation however, the DENR found that the resort continued to operate.

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