TRO petition fails to meet raffle cut-off
A defiant Makati City Mayor Jejomar Erwin Binay Jr. on Thursday said he will not accept the Office of the Ombudsman’s order and stay in his City Hall office until the legality of his suspension is settled.
The embattled mayor made the statement a day after the Ombudsman announced his suspension from office along with other city officials for six months in connection with alleged overpricing in the construction of Makati City Hall Building 2.
“Hanggang kailangan kaming manatili dito ay hindi kami aalis [As long as we have to stay here, we won’t leave] ” Binay said in a news conference as he insisted that the Ombudsman’s order was “illegal.”
“It’s an illegal order we will not honor,” he pointed out.
Binay stayed overnight in his office as his family’s supporters thronged the City Hall compound and held a vigil purportedly to block efforts to enforce the Ombudsman’s order.
Members of the Binay family, including Vice President Jejomar Binay, who was the city’s mayor when the allegedly anomalous deal took place, stayed with the embattled mayor who slept in a sofa.
Binay maintained that he will stay put in his office pending resolution of a petition for certiorari he filed before the Court of Appeals.
He said they would not allow a member of the Liberal Party to replace him once the suspension order is served.
Malacañang also on Thursday distanced itself from the issue, saying the suspension order was purely an action of the Office of the Ombudsman, a constitutional body.
In a news briefing, Presidential Communications Secretary Herminio Coloma Jr. explained that the suspension order was part of “normative procedures” of the Ombudsman.
The Office of the Ombudsman warned the younger Binay that he may be cited in contempt and even placed under arrest for defying the suspension order.
“The Ombudsman has the power to cite a person in contempt if he would continue to defy the order,” Assistant Ombudsman Asryman Rafanan, who also serves as the spokesman for the Office of the Ombudsman, said.
Rafanan added that they will await the report of the Department of Interior and Local
Government (DILG) on the servicing of the suspension order.
The DILG was given five days from Wednesday to implement the order.
“If the Secretary of the Interior and Local Government report says that Binay continues to defy the order, then that’s the time that the Ombudsman would have to consider other powers such as [citing the mayor in]contempt,” Rafanan said.
DILG Secretary Manuel Roxas 2nd also on Thursday confirmed receiving a copy of the Ombudsman’s order. He said the DILG would implement the order soon.
The Court of Appeals, meanwhile, has designated the 7th Division to oversee the raffle of Binay’s petition to overturn the Ombudsman’s order and stop the DILG from implementing it. The 7th Division is headed by Associate Justice Fernanda- Lampas, with Associate Justices Stephen Cruz and Ramon Paul Hernando as members.
The Manila Times learned that the Binay camp failed to meet the cut-off period for Thursday’s raffling of cases.
Binay’s lawyers had sought a special raffle beyond the CA’s business hours but the appellate court decided to have the raffle done on Friday.
In his petition, Binay argued that the Office of the Ombudsman committed a grave abuse of discretion and violated his rights in issuing a preventive suspension order against him and several city officials on a mere complaint for corruption against him.
He said Ombudsman Conchita Carpio-Morales “whimsically and capriciously disregarded and violated established laws and jurisprudence.” Binay added that he was suspended even without asking for his counter-affidavit.
He pointed out that a Supreme Court (SC) jurisprudence stated that a mere signature or approval appearing on a document is not enough to sustain a charge of conspiracy among public officials and employees.
“To use the words of the Supreme Court, apart from the petitioner’s signature, nothing else of real substance was submitted to show his alleged complicity in the purported crime,” Binay said.
He described the case filed against him before the Office of the Ombudsman as weak and does not warrant a preventive suspension.
“In this case, however, it is evident that the evidence of guilt is not strong because there is no evidence or factual basis that would sustain the charges against the petitioner as previously discussed,” the mayor said.
Binay also pointed out that the allegedly anomalous construction of Makati Cty Hall Building 2 happened before he was elected mayor in 2010. He said the project involved five phases with the questioned deal covering Phases I and II. The mayor added that only Phases
III to V were undertaken during his term.
“Undeniably, petitioner cannot be held accountable for any alleged anomaly involving Phase I and Phase II of the project as he was not yet the elected mayor,” according to Binay .
As to Phases III to V, which were done during his first term from 2010-2013, he said he cannot be held administratively liable because his reelection for a second term rendered the case against him moot and academic on the basis of the “Aguinaldo doctrine.”
The doctrine pardons previous offenses of any local official.
“While some of the acts attributed to the petitioner were allegedly implemented during his second term as mayor [2013-2016], the same relates to transactions [Phases III to V] concluded during his first term of office and therefore effectively condoned his administrative liability by his reelection,” it was stated.
“The Ombudsman has clearly lumped the petitioner with the other respondents in the case lodged before it, with general accusations in a ‘hit or miss’ fashion, relying on a ‘conspiracy’ among all of them. However, such cannot be presumed from petitioner’s mere signature on the disbursement voucher and purchase contact,” Binay said.
He junked accusations of conspiracy for there is no evidence to show that he had any prior knowledge of any irregularity to be committed or that he intentionally participated in the planning, preparation or perpetration of the alleged conspiracy to defraud the Makati city government.
“In this case, respondent Office of the Ombudsman clearly acted in a capricious and whimsical exercise of judgment when [it]preventively suspended the petitioner despite the fact that no strong evidence, if any at all, has been presented against him,” Binay said.
WITH JOEL M. SY EGCO