Binay challenges Ombudsman’s recommendation to file graft raps

MANILA, Philippines - Vice President Jejomar Binay is questioning the Office of the Ombudsman’s decision to recommend the filing of graft, malversation and falsification of public documents against him in connection with the alleged overpricing of Makati City Hall Building II.

The complaint accusing Binay of benefiting from the alleged anomalous bidding and construction of the building has no factual or legal basis, according to a motion for reconsideration filed last Oct. 19.

Binay did not conduct the bidding or recommended the contractor, and his actions were purely ministerial in nature or part of his work as  mayor of Makati, according to his lawyers Claro Certeza, Maria Patricia Alvarez and Francis Paul Baclay.

“It imputes guilt based on the minutest imperfections that could be conceivably found in the bidding process,” they said.

“The Questioned Resolution ascribes guilt to respondent Binay even if he is not responsible for the bidding process and that he merely signed the BAC (bids and awards committee) Resolution and authorized payment/s as part of his ministerial duties.” 

No irregularity occurred when Binay, as mayor of Makati, approved the BAC resolution for a negotiated procurement as he only did so based on the recommendation of then city engineer Nelson Morales and the BAC, they added.

It was part of the procedure, and Binay as mayor  only followed the regular procedure, the lawyers said.

The resolution of Ombudsman Conchita Carpio-Morales resorted to hindsight in concluding that a prima facie case existed against Binay, they added.

The Supreme Court has ruled that hindsight should not be relied on, the lawyers said.

They cited the SC ruling in Arias vs. Sandiganbayan to emphasize the fact that Binay as mayor “had every right to rely in good faith upon the recommendations of his subordinates.”

In that case, the SC ruled: “We would be setting a bad precedent if a head of office plagued by all too common problems – dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority.

“All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies or enter into negotiations.

“There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction.” 

The Office of the Ombudsman has ordered that charges of graft, malversation and falsification of public documents be filed against Binay, his son dismissed Makati Mayor Jejomar Erwin Binay Jr. and 20 other Makati city employees.

It also directed that the charges against the younger Binay and others be filed immediately, while the elder Binay would be charged when his term expires.

However, Binay’s lawyers said the resolution of the Office of the Ombudsman requires a second look, as it has no factual or legal basis.

The law requires that an impeachable officer must first be removed from office by impeachment before charges against him can be investigated to determine probable cause, they added.

The law does not give the Office of the Ombudsman jurisdiction to investigate impeachable officers like Binay and to issue a resolution indicting an impeachable officer, the lawyers said.

 “In proceeding with the investigation and subsequently issuing the Questioned Resolution, this Honorable Office clearly violated the Constitution and established jurisprudence on the matter. It acted without jurisdiction,” they said.

The Office of the Ombudsman should reconsider its Sept. 7 resolution as it “is not in accord with (the) law and established jurisprudence,” they added.

The Office  of the Ombudsman violated the right of Binay to due process when it ignored his objection   that it has no jurisdiction over the case as he is an impeachable official, the lawyers said.

“It was only when the Questioned Resolution was issued that respondent Binay was informed of this Honorable Office’s contrary position that it has jurisdiction and would therefore proceed with the investigation and render a resolution on the charges against him,” they said.

“Hence, respondent Binay was deprived of any available remedy to question this Honorable Office’s position before the proper court.” 

The issuance of the resolution creates a public perception that it is politically motivated, especially when it came at a time when Binay was about to file his Certificate of Candidacy for president, the lawyers said.

“With the Questioned Resolution publicized and made the main topic of media coverage, one cannot help but conclude that it is calculated to destroy respondent’s candidacy instead of achieving justice,” they said. “Moreover, the Questioned Resolution was served first to the media even before it was personally served on Respondent Binay.

“The resolution is highly anomalous. On one hand, it creates the public perception in the minds of the public that Respondent Binay is indeed guilty of the crimes imputed against him. Hence, the finding of probable cause to order his indictment. But on the other hand, he is deprived of any means of defending himself because the Information containing the charges will only be filed after the expiration of his term.” 

Selective relief operations

The United Nationalist Alliance (UNA) yesterday accused the administration of selective relief operations in Lando-hit municipalities whose mayors are not its allies.

They have received reports that San Miguel, Bulacan; Baler, Aurora; and Cabiao and Bongabon in Nueva Ecija were denied relief assistance from the Department of Social Welfare and Development, UNA spokesman Mon Ilagan said.

“The families affected by Lando in these towns were not given relief goods only because their mayors are not allied with the Liberal Party,” he said.

“Is this the new system now? Selective relief? If you’re not their ally you won’t receive assistance?”

San Miguel Mayor Roderick Tiongson, who ran under LP in 2013, is now vying for the governorship of Bulacan under UNA, and Baler Mayor Nelianto Bihasa belongs to PDP-Laban, Ilagan said.

“This is Yolanda all over again. Politics has sadly reared its ugly head in times of distress,” he said.