No legal basis in claim VP benefited from anomaly, lawyers argue
Lawyers for Vice President Jejomar Binay on Friday asked the Office of the Ombudsman to set aside its resolution recommending the filing of charges against him.
In a 32-page motion for reconsideration filed on October 19, lawyers Claro Certeza, Maria Patricia Alvarez and Francis Paul Baclay said signing of bidding documents for the Makati City Hall Building 2 was part of Binay’s “ministerial duties” as local chief executive in Makati City at the time.
The lawyers added that there is no factual or legal basis for the complaint claiming that the now Vice President benefited from the allegedly anomalous bidding and construction of the Makati City Hall Building 2.
They argued that the Vice President was not the one who conducted the bidding or recommended the contractor.
“His actions were purely ministerial in nature or part of his work as then mayor of Makati City,” a statement from the Office of the Vice President said.
“It imputes guilt based on the minutest imperfections that could be conceivably found in the bidding process. 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,” the lawyers said.
They added that there was no irregularity when the-Mayor Binay approved the BAC resolution for negotiated procurement because he only signed the resolution based on the recommendation of then-City Engineer Nelson Morales and the BAC.
This was part of the procedure and Binay, as mayor, only followed the regular procedure, the statement said.
The lawyers said the Ombudsman’s resolution was based on hindsight even when the Supreme Court ruled that hindsight should not be relied on.
Citing the ruling in Arias vs. Sandiganbayan, they noted Binay “had every right to rely [on]good faith upon the recommendations of his subordinates.”
“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,” the ruling read.
“There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction,” it added.
The Ombudsman earlier ordered that charges of graft, malversation and falsification of public documents be filed against Binay, his son Makati Mayor Erwin “Junjun” Binay and 20 Makati City employees.
The Ombudsman also directed that the charges against the younger Binay and others be filed immediately, while the elder Binay will only be charged when his term expires.
But the Vice President’s lawyers said the resolution requires a second look.
The lawyers added that 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 said the law does not give the Ombudsman jurisdiction to investigate impeachable officers like the Vice President and to issue a resolution indicting an impeachable officer.
“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,” the lawyers said.
Binay’s right to due process was violated by the Ombudsman when it ignored the objection posed by Binay that the Ombudsman has no jurisdiction over the case as he is an impeachable official, they added.
It was only when the questioned resolution was issued that the Vice President was informed of the Ombudsman’s contrary position that is has jurisdiction and would proceed with the investigation and render a resolution on the charges against him.
“Hence, respondent Binay was deprived of any available remedy to question this honorable office’s position before the proper court,” the lawyers said.
They alleged that the resolution has political pressure because Binay then was about to file his certificate of candidacy (COC) for the presidency.
The Vice President’s camp earlier questioned the timing of the Ombudsman’s resolution, saying it is part of a “perception war.”
The Ombudsman resolution was released to the media three days before the start of the COC filing.
Binay apparently had not yet received a copy of the resolution when Ombudsman Conchita Carpio-Morales disclosed it to media, saying they have found probable cause to charge the Vice President in court, but recommended the filing of charges against him only when his term ends in 2016.