Panel finds basis to indict Binays for graft

MANILA, Philippines (UPDATED) – The allegedly overpriced P2.2 billion Makati city hall parking building “is a grand corruption scheme” involving “the diversion of people’s money” and raiding of city government coffers for the benefit of favored contractors.

This is the conclusion arrived at by a special panel of Ombudsman probers that looked into the controversial 5-phased project that spanned the terms of father and son tandem Vice President Jejomar Binay Sr and current Makati Mayor Jejomar Erwin Binay Jr.

The panel report seeks to indict Binay and his son, other Makati officials, and several private contractors “for criminal and administrative charges” in connection with the “illegal procurement and payment for the design and construction of the Makati city hall parking building.”

It also sets the stage for a possible impeachment of the elder Binay, considered the man to beat in the 2016 presidential race.

“The case of the Makati parking building is a clear instance of diversion of people’s money and putting it on the hands of favored private contractors. The release of millions of pesos for unutilized working drawings and plans, and the circumvention and violation of procurement laws to favor the contractors, have indeed, raided the coffers of the city government of Makati. The public officials responsible for such illegal transaction, and the private contractors who conspired with them, should therefore be held accountable,” the panel report said.

Ombudsman’s authority

The Vice President did not submit his counter-affidavit but questioned the authority of the Ombudsman to investigate him, citing a provision in Republic Act 6770, the law that created the Ombudsman, which excludes impeachable officials like him from the disciplinary action of the anti-graft body.

But this argument was trashed by the special panel. They argued that while Section 21 of RA 6770 limits the disciplinary authority of the Ombudsman for impeachable officials, it does not restrict the investigatory power of the Ombudsman which is “all encompassing.”

The panel cited Section 13, Article XI of the Constitution and Section 15 of the Ombudsman law, which grants authority to the Ombudman to investigate and prosecute “any public official or employee…”

Section 22 of the Ombudsman law also clearly states that even impeachable officials are within the ambit of the Ombudsman’s prosecutorial mandate, the panel said. Section 22 states: “The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.” 

The panel said the Vice President’s refusal to submit his counter-reply is considered “a waiver of his right to present his evidence and controvert the charges against him.”

In a statement, Binay’s spokesman for political concerns Rico Quicho said it is “unfortunate that the Special Panel created by the Ombudsman has not been forthright in its handling of the Makati City Hall Building 2 investigation.”

The Vice President, according to Quicho, maintains that the complaints against him, Mayor Junjun Binay, and other City Hall officials “have no basis in fact and in law.” Quicho added there is “absolutely no evidence to show any criminal liability” on their part.

Quicho said the Office of the Ombudsman should be “insulated from politics” and not allow interested groups “to use it for political persecution and witch hunt.” He further said, “It cannot be denied that the timing of the Ombudsman’s action is geared to discredit the Vice President during this time when the survey firms are about to start with its fieldwork.”

Fake publication

An administrative case and suspension order had earlier been slapped against the younger Binay in connection with the Makati parking building case but this was restrained by the Court of Appeals. The issue is pending before the Supreme Court.

In its report, the panel concluded that the Binay father and son should face administrative and criminal proceedings after finding probable cause that they colluded with several Makati local officials and private contractors on the allegedly overpriced Makati parking building. 

The report said the P2.2-billion project was tainted with irregularities – from the lack of public bidding for the architectural and design services to falsification of the bid documents and lack of required appropriation.

The grand scheme gave “unwarranted benefits” to:

• MANA Architectural and Design Company which got paid more than P11 million despite failing to provide the architectural design of the building
• Hilmarc’s Construction which cornered all the 5-phases of the project

The Bids and Awards committee under both the administrations of the Vice President and his son “disregarded procurement rules” and that rigging in the award of the project were boosted by the admissions of Makati engineer Mario Hechanova and former Makati general services department head Ernesto Aspillaga. Both Hechanova and Aspillaga testified before the Senate Blue Ribbon subcommittee that all bidding activities in Makati were rigged.

Quite telling is the fact that the invitations to bid were found to be fake, as testified to by the newspaper owners and editors. They said the Makati City government had placed no advertisements in their papers.

Condonation rule

In his counter-affidavit, the younger Binay argued that he merely signed the documents related to the contract as part of his ministerial duties. He also invoked the condonation doctrine which absolves a public official of liability for any acts committed during his previous term by virtue of his reelection in 2013. (READ: Miriam: Binay reelection argument ‘ludicrous’)

But the panel found out that the fourth tranche of payment to MANA was executed on July 24, 2013 – or a few months after his reelection.

“Considering that based on the documents and respondent Binay Jr’s own declaration that payment to MANA was processed on 24 July, 2013, he cannot take refuge in the condonation doctrine to evade administrative liability,” the panel said.

Apart from the Binays, also sought to be indicted are 22 individuals, including Hilmarc’s chairman Efren Canlas. – Rappler.com