Citing the presumption of regularity, the Office of the Ombudsman threw out the graft complaint of a New York-based billionaire against former Energy Secretary Alfonso Cusi, other Department of Energy officials, Davao City-based executive Dennis Uy, and several others over the sale of 90 percent of the shares of the Malampaya natural gas consortium.
On 18 October 2021, US-based geologist Balgamel Domingo and Filipino-American anti-Duterte leaders Rodel Rodis and Loida Nicolas-Lewis filed charges against Cusi, Uy, and the others involved in the sale of the Malampaya stake to the Udenna group of Uy.
In a copy of the ruling obtained by the Daily Tribune, the Ombudsman said it could not delve into the complaint on the legality of the transaction since “the authority to make such a determination belongs to the court.”
“Seemingly, this complaint is in actuality a collateral attack on the validity of the Share Sale and Purchase Agreement,” it said.
The decision declared that “matters of such tenor are not determinable in a preliminary investigation before the Ombudsman’s Office.”
“Without any judicial determination decreeing the illegality of the Share Sale and Purchase Agreement, this Office is left with nothing but to acknowledge its validity,” the ruling said.
The Ombudsman cited a precedent in the case of Teresita Buenaventura vs Metrobank, in a ruling that stated: “The burden of showing that a contract is simulated rests on the party impugning the contract.”
“This is because of the presumed validity of the contract that has been duly executed,” the Ombudsman ruling read. “Wherefore, the criminal charges for violation of Section 3(e) and of Republic Act 3019 against the respondents are dismissed for lack of probable cause.”
The ruling was signed by members of a Special Panel of Investigators composed of Ronald Allan Ramos, Josephine Mae Rosapapan, Francisco Alan Molina and Bonifacio Mandrilla.
Prime takes control
The operation of the Malampaya project was recently assumed by the Razon group’s Prime Energy which bought a 45-percent stake from Malampaya Energy XP, or MEXP, of the Udenna group. MEXP had bought the shares of Shell Philippines Exploration B.V., or SPEX, in the consortium.
The Department of Energy had branded the complaint a political move since the two Fil-Am lawyers in the suit were prominent in the “Oust Duterte” movement in the United States.
The complaint alleged that Cusi and other energy officials had granted “unwarranted benefits and advantage” to Uy’s UC Malampaya in the buyout of Chevron’s share in the consortium.
Udenna, through spokesperson Raymond Zorilla, said there is “no law requiring approval of the transfer of shares of companies that have an interest in Malampaya.”
Zorilla said the transfer of Chevron and Shell shares underwent strict bidding processes and due diligence by both multinational oil and gas players.
“The share sales were above board and legal and had to pass scrutiny by Philippine regulators, international lenders, and the said private multinationals involved,” Zorilla added.
Cusi, in an interview with Daily Tribune, had said the DoE was not involved in choosing the buyer of the shares of Shell and Chevron in the Malampaya project.
“The DoE did not get involved in the sale (of shares). We don’t know that they are selling. Our question was what their standards are for choosing Udenna. Why didn’t you choose the big companies, and why Udenna?” he said.
Industry experts said the sale of shares was a private transaction that the accusers, who are US lawyers, should have been very familiar with.
Cusi said the DoE, during his watch, went beyond its mandate by reviewing the technical, legal, and financial aspects of the transactions, the results of which were provided to the public.
Political agenda
The complaint, he said, had an underlying political agenda connected to his being the head of President Rodrigo Duterte’s Partido Demokratiko Pilipino-Lakas ng Bayan or PDP Laban.
“It is not only political propaganda against me, but it also has a destabilization background… because I’m the president of the PDP.” The complaints, in turn, stemmed from the unending Senate inquiries on the Malampaya deals.
The DoE said the Senate probes and the controversies that resulted from them had caused costly delays in the review process that would ultimately affect the country’s energy security.
To refute a recent remark by Senator Sherwin Gatchalian, the DoE, in a statement said: “The inquiries of Senator Gatchalian are causing undue delay to the timeline of the consortium corporations, and this may eventually take its toll and put our energy security at risk.”
The DoE’s approval of the sale of shares of stock of Chevron Malampaya LLC, one of the three corporations in the Malampaya Gas Field Project Consortium, had been dubbed by Gatchalian, chairman of the Senate Committee on Energy, as “lutong Macau.”
It also backed the Udenna assessment that the deals were above-board.
“When the sales were made, both Chevron Philippines, which owned Chevron Malampaya, and Shell Petroleum NV, owner of SPEX, followed rigorous global standards,” the DoE said.
Nicolas-Lewis was part of a 25-person delegation from the US-Philippines Society, a private group comprising business executives and diplomats, who met with Duterte a week before his inauguration as president in 2016.
Nicolas-Lewis was then accompanied by former Philippine Ambassador to the US Jose Cuisia, PLDT chair Manuel V. Pangilinan, retired American diplomats, and executives of Coca-Cola, SGV, JP Morgan, and other top corporations.
Nicolas-Lewis is the sister of former National Anti-Poverty Commission chairperson Imelda Nicolas, who was one of the “Hyatt 10” Cabinet members who turned against then-President Gloria Macapagal-Arroyo in 2005.
Imelda and most of the Hyatt 10 members ended up getting key posts in the administration of President Benigno “Noynoy” Aquino III. Imelda was made head of the Commission on Filipinos Overseas.
Nicolas-Lewis plot bared
In February 2018, former President Duterte bared intercepted conversations that indicated Nicolas-Lewis was behind efforts to push the International Criminal Court, or ICC, to probe his war on drugs.
Duterte revealed a recorded conversation between Lewis and another political opponent whom he did not name.
“I was listening to the tapes of their conversation. It was provided to me by another country, but the conversation was somewhere in the Philippines and New York,” Duterte said.
He said that among the recordings was one in which Lewis allegedly told another person: “See you in the headquarters when the case is filed.”
Duterte then said in a public address that he was aware of developments on the ICC case and that lawyer Jude Sabio, the main complainant in the case, was a paid hack of Magdalo Senator Antonio Trillanes IV and Rep. Gary Alejano, both failed putschists.
Sabio withdrew his complaint before the ICC and revealed that the case was the handiwork of the dirty tricks factory of Trillanes. In 2016, Duterte pointed to Lewis as the financier of an alleged destabilization plot against his administration.
Nicolas-Lewis invested heavily in the failed presidential campaigns of Liberal Party bets Mar Roxas in 2016 and Vice President Leni Robredo in 2022.