DOJ clears Ayala in Glorietta blast 8 face charges

MANILA, Philippines – The country’s top property developer, Ayala Land Inc. (ALI), has been cleared of any responsibility in the Glorietta 2 shopping mall explosion in Makati City that left 11 people dead and 105 injured in October last year.

The Department of Justice (DOJ) dropped the charges against three ALI officials but recommended the filing of charges of reckless imprudence resulting in multiple homicide against an engineer of Makati Supermarket Corp. and seven engineers and maintenance workers of two private contractors.

The DOJ panel of prosecutors also dropped the charges against three officials from the Makati City fire department who were accused of administrative lapses.

“There’s no direct evidence to show that Ayala Land Inc. was directly responsible for the maintenance of the building where the accident occurred,” Justice Secretary Raul Gonzalez said.

Malacañang however said yesterday that officials of Ayala Land are not yet off the hook over the Glorietta 2 blast.

Chief presidential legal counsel Sergio Apostol said ALI officials may have not been found criminally liable by the DOJ but they are still vulnerable to civil suits that may be filed by victims or their families.

“The government has nothing to do with civil cases but the victims or their families could file civil cases against them (ALI officials),” Apostol said in a telephone interview. He also denied that the government has been biased against the property giant since the start of the investigation.

Gonzalez said ALI’s role as the mall manager did not include the maintenance of areas leased by its tenants. He pointed out the Makati Supermarket Corp. was renting space where the leak happened.

Among those charged with reckless imprudence resulting in multiple homicide were Candelario Valdueza, the project engineer that handled the operations of the mall, and five maintenance personnel.

Aside from Valdueza, also charged were Clifford Arriola, operations manager of Marchem Industrial Sales and Services Inc.; Marchem supervisor Joselito Buenaventura, maintenance personnel Charlie Nepomuceno, Jonathan Ibuna, and Juan Ricafort; and engineer Ricardo Cruz and Miguel Velasco Jr. of Metalline Enterprises.

On the other hand, the DOJ panel dropped the charges against Glorietta 2 building engineer Marcelo Botenes, building administrator Jowell Velvez, and building manager Arnel Gonzales.

Prosecutors also dismissed the charges of graft and administrative cases for gross neglect of duty against Makati City Fire Station safety inspectors Senior Fire Officer 4 Anthony Grey and Senior Fire Officer 2 Leonilo Balais; and fire prevention officer Senior Inspector Reynaldo Enoc.

ALI counsel Dino Tamayo said the Ayala management was happy with the decision.

“We are happy that the DOJ investigating panel accepted our arguments that they exercised due diligence,” Tamayo said.

Tamayo clarified ALI was not charged since its engineers were named as individual respondents.

The Multi-Agency Investigation Task Force (MAITF) created by the Philippine National Police (PNP) headed by Chief Superintendent Luizo Ticman earlier recommended the filing of charges against the MSC personnel and firefighters last January.

The MAITF dismissed the possibility of a terrorist bombing and concluded leaking methane and diesel vapors in the mall’s basement caused the explosion.

In a 51-page resolution, the DOJ’s four-member panel of prosecutors adopted the findings of the MAITF concluding a methane gas explosion.

“Evidence on record indeed shows a combination of several factors that led, if not contributed, to the phenomenon of sewer (methane) gas/air explosion,” the DOJ panel said.

The DOJ though noted the opinion of expert witnesses presented by mall owners ALI and Ayala Property Management Corp. (APMC) during the preliminary investigation which contradicted the findings of the fact-finding panel.

The panel said the opinion presented by ALI’s experts did not overturn the biogas explosion theory that had been clearly established by government experts.

“The panel finds reasonable ground to engender a well-founded belief that the crime of reckless imprudence has in fact been committed in these cases, notwithstanding the opinion of expert witnesses presented by ALI/APMC,” the DOJ said.

The DOJ said Valdueza, considering his position as the project engineer, as well as the other respondents, “should have exercised reasonable care and precaution as to have prevented the conditions or factors that triggered the biogas explosion.”

“All told, Engr. Valdueza breached safety measures and generally accepted practices as provided under the Fire Code and this indisputably constitutes evidence of negligence,” the DOJ said.

Volatile mix

The DOJ panel cited the poor maintenance of the building’s sewer/sump pits, which had allowed methane gas to accumulate.

The panel also noted that diesel fuel was being stored in the basement without any mechanical ventilation and exhaust system. This caused the increase in the temperature in the basement.

The DOJ also noted the use of jumpers on safety fuses, the presence of open switches, motor pumps, circuit breakers, which could have ignited the volatile mixture of gases accumulating in the building’s basement.

While the Makati Supermarket Building that is owned by the Makati Supermarket Corp. is erected on land owned by the ALI, the panel said as building owner, MSC is responsible for the installation and maintenance of the building.

The panel noted that the land on which the supermarket was constructed is under lease by ALI to MSC from 1988 to 2011.

While APMC acts as the authorized agent of ALI in dealing with MSC on technical matters, the panel said APMC, which had employed Botenes, Velvez and Gonzales, has no service contract directly with MSC, the panel said.

According to the DOJ, while it is true that under the 1997 memorandum of agreement in which MSC appointed ALI as manager for the building, “it could not be inferred” that MSC was released from its principal obligation over the building’s utilities.”

Citing a provision in the memorandum of agreement, the panel said the role of ALI as manager of the building is limited to screening tenants.

“Verily, under both the MOA and the original contract of lease between the MSC and ALI, the responsibility for repairs and maintenance of the building, i.e. physical maintenance, shall be for the account of  MSC,” the DOJ panel said.

“Record also shows that all government permits are in the name of MSC which have paid all the fees therefore. Moreover, none of the equipment in the MSC basement is owned, supplied or designed by ALI or APMC. These equipment service only the MSC building.”

Technical negligence

The panel said there is substantial evidence to warrant the indictment of the Marchem and Metalline engineers and employees as respondents in the case.

They said the indicted Marchem employees were the contractors of the electrical works and repairs of the electric submersible pumps for the sump pits installed at the basement of the Makati Supermarket building. Investigation showed the Marchem employees failed to install explosion-proof electric control cabinets, switchgears and lighting fixtures in the basement.

In addition, the Marchem employees, the DOJ panel said, altered the standard electrical safety devices at the basement by installing and using improvised wire jumpers instead of protective fuses.

The indicted Metalline employees are liable for their failure to install the air duct ventilation system and fire protection system of the MSC building, the panel said.

As for the fire and building inspectors, the panel said there was insufficient evidence to warrant the filing of graft charges against them.

The panel said the three fire safety officials had inspected the building on July 23, 2007 or three months before the explosion took place.

The findings of the three officials concluded the MSC had supposedly complied with the safety standards of the Fire Code.

But the DOJ panel noted that during the intervening period from the date of inspection to the Oct. 19, 2007 explosion, “alterations” were made in the landscape of the premises.

“Thus far, the subject inspection and issuance of fire safety inspection certificate to MSC appear to have been done in the regular discharge of respondents’ official duties, without any taint of irregularity, much less of giving undue injury or benefit to any party,” the DOJ said. – With Michael Punongbayan, Paolo Romero