Sandiganbayan junks former Iloilo Rep. Tupas' bid to dismiss graft, malversation raps

The Sandiganbayan has junked due to lack of merit the bid of former Iloilo lawmaker Niel Tupas, Jr. to dismiss the graft and malversation charges against him involving the transfer of his discretionary fund to a nongovernment organization (NGO) in 2008.

This developed after the anti-graft court, in a Resolution dated July 26, denied Tupas' demurrer to evidence, a pleading seeking the dismissal of the case due to weak prosecution evidence and without the defense presenting its own.

"We are not persuaded. Passing through the assertions of the prosecution in their Comment/Opposition [on Tupas' demurrer to evidence] and the evidence presented, it is ostensible that they were able to build up the case against the accused," the anti-graft court said.

Tupas, the Sandiganbayan said, was a member of the House of Representatives at the time material to the case and may have acted with manifest partiality, evident bad faith or gross inexcusable negligence considering his admission in his counter-affidavit containing his statement recommending  NGO Kabuhayan at Kalusugan Alay sa Masa Foundation Inc. or KKAMFI as project partner of then state-run National Agribusiness Corporation or NABCOR.

"It is quite definite that the public fund supposedly earmarked for the project is now unaccountable," the Sandiganbayan added. 

The anti-graft court also cited prosecution's argument that being a member of the House of Representatives entitled to discretionary Priority Development Assistance Fund (PDAF) to subsidize his projects, Tupas should have effective control over the fund which was considered personal.

"Jurisprudence dictates that malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony, as held in the case of Zoleta vs. Sandiganbayan. Thus, his claim of innocence would be negated upon final finding of negligence on his part that led others to take or misappropriate public funds," the anti-graft court pointed out.

"In short, the motion of accused Tupas is not adequate to rebut the presumption of malversation enshrined in Article 217 of the Revised Penal Code. At this point, the Court has sufficient reason to believe that the prosecution is on the right track in establishing and substantiating the material allegations in the foregoing information unless derailed by competent evidence by the accused," it added.

Proceeding with the trial of Tupas, the Sandigabayan said, is in the interest of fair play that would allow the accused to present evidence  to defend himself.

"It is best to proceed with the continuation of the trial for the reception of evidence for the accused where all evidence of both parties will be subject to rigorous but objective appreciation of the Court," the Sandiganbayan said.

"In view of the foregoing, accused Tupas' Motion for Leave to File Demurrer to Evidence is denied for lack of merit," it added.

GMA News Online sought Tupas for comment but has yet to receive a reply, as of posting time.—AOL, GMA News