Showdown at the SC: Velasco vs Morales
BAGUIO CITY, Philippines – The Ombudsman defended its position on Tuesday, April 15, that the Court of Appeals does not have the power to stop its preventive suspension order on Makati Mayor Jejomar Erwin Binay Jr, and that his suspension was needed for the conduct of a full investigation.
Day 1 of the oral arguments on the powers of the Ombudsman saw a showdown between Ombudsman Conchita Carpio Morales and Associate Justice Presbitero Velasco, who called attention to the little details of the Ombudsman's suspension order, by asking questions about evidence that led to the Ombudsman's suspension order.
Velasco echoed the Binay camp in suggesting the order was issued in "haste." The order was issued with respect to the administrative, and not the criminal, aspects of the case.
"The preventive suspension order was issued on March 10. This is 5 days from the time the complaint was filed with your office. There is an allegation from respondent that there may be some haste in the issuance of the preventive suspension order."
But a combative Morales defended the suspension order against all the issues raised by Velasco. "You will recall that the Office of the Ombudsman gives priority to high profile cases," Morales said, reminding the associate justice that the amount involved was considerable. "P1.5 billion is a great amount of money," she said.
A plunder case was filed in July 2014 against Mayor Binay and his father Vice President Jejomar Binay in connection with an over-priced multi-million-peso New Makati City Parking building contract. Mayor Binay rejected the complaint as “fabricated and clearly connected to the 2016 elections.”
She also pointed out that the special panel of investigators constituted by the Office of the Ombudsman gave her progress reports. Thus by the time the final investigation report came in, the Ombudsman already understood the issues of the case. Morales said she just waited for the recommendation of the panel of investigators, since it was no longer difficult to read their report and approve or disapprove their recommendation.
Velasco pointed out that it took her only 4 days to issue the preventive suspension order (on March 10, 2015) from the time the panel of investigators submitted their recommendation to conduct a preliminary hearing (March 6).
Morales countered, the Ombudsman "could take only one day…the final conclusion could just be there."
She stressed that the evidence of guilt against Mayor Binay is "strong." She cited accounts of bidding officials told to make sure a favored company wins the project.
"There was a necessity to access and source all documentary evidence, the originals, which purportedly are in the possession of city hall officials," said Morales.
Velasco asked, "What constitutes strong evidence of guilt?" as he went on to say that the preventive suspension order issued by the Ombudsman was based on the "sworn statements of alleged losing bidders" and members of the Makati City Bids and Awards Committee (BAC).
Morales countered that there were falsified bidders, citing the case of chief operating officer Alejandro Tengco of J-Bros who said his company never participated in any bidding. She said Binay caused the release of payment for a transaction that violated Commission on Audit rules and that "falsifications were committed."
She specified the case of an invitation to bid supposedly being published in a newspaper which turned out to be untrue. Investigators, she said, checked with the CEO of the newspaper which was unnamed, and found out there was "never any published invitation to bid."
Velasco then said the name of Mayor Binay did not appear in the annexes that served as the basis of the suspension order.
"So far all the sworn statements and affidavits have not mentioned at all the respondent Binay Jr. I just would like to state that for a fact. You said awhile ago that resondent Binay signed and approved disbursement vouchers for payments," Velasco said.
"Does that exclulpate the mayor?" Morales retorted. She continued, "He signed notices of awards. He signed BAC resolutions. He signed contracts and he signed vouchers."
"Conspiracy is apparent," Morales added.
Defending the preventive suspension order, she said there was "strong evidence", misconduct, neglect of duty in the case of Binay. She affirmed there was strong evidence to conclude that there was administrative wrongdoing and thus the need to preventively suspend.
Sereno on condonation by re-election
The oral arguments also started discussion on an argument raised by the camp of Binay, condonation by re-election, a policy upheld by the Supreme Court.
Citing Aguinaldo vs Santos, the camp of Mayor Binay argued that "a public official cannot be removed for administrative misconduct committed during a prior term since his re-election to office operates as a condonation of the officers' previous misconduct to the extent of cutting the right to remove him therefor."
It's a policy that Sereno categorically opposed during the oral arguments, saying it sends the wrong message to government officials.
Sereno said: "It is important that this court deliver the correct message to 430,000 officials, which brings me to the equal protection issue here. We're basically saying that these 430,000 officials can commit administrative offenses ranging from simple misconduct all the way to serious misconduct, and dishonesty. They just have to ensure that they get re-elected and any preventive suspension or any investigation or an administrative finding by the Ombudsman will have to stop. Is that the message that is going to be delivered if we continue with the condonation doctrine?"
Encouraged, acting Solicitor-General Florin Hilbay said it's time the High Court changes the ruling. "We have pending petitions before this honorable court urging the court to revisit the condonation policy of this honorable court. The studies are all there," Hilbay said.
The oral arguments will continue next Tuesday, April 21, at the SC Compound in Baguio City. – Rappler