MANILA, Philippines – The anti-graft court Sandiganbayan has handed former Makati City mayor Elenita Binay her fourth acquittal of cases stemming from alleged anomalous transactions during her mayoral term.

In a decision read during the promulgation of the case on Monday, January 22, the Sandiganbayan Fourth Division junked the graft and malversation charges against Elenita Binay after prosecutors failed to prove her guilt beyond reasonable doubt. The case was in relation to the allegedly anomalous purchase of P9.9 million worth of medical equipment.

Elenita is the wife of former vice president Jejomar Binay and the mother of Senator Nancy Binay and Makati Mayor Abigail Binay.

For the graft case, associate justices Lorifel Lacap Pahimna, Michael Frederick Musngi, and Bayani Jacinto unanimously acquitted Binay along with her co-accused Luz Yamane-Garcia, Ernesto Aspillaga, Mabel Asunio, and Lilia Nonato.

“As the act or omission from which the civil liability might arise did not exist, no civil liability may be adjudged against them,” the decision explained.

The anti-graft court also lifted the hold departure order against Binay and her co-accused. Their cash bonds were also ordered released.

As in a previous case, some of Binay’s underlings were convicted. The Sandiganbayan convicted Conrado Pamintuan and Jaime delos Reyes of graft, sentencing them to up to eight years of imprisonment. The anti-graft court also meted the penalty of perpetual disqualification from public office against the two accused.

Along with Binay, Garcia, Aspillaga, Asunio, Nonato, Pamintuan, and Delos Reyes were all acquitted of malversation charges.

Not enough evidence

The graft and malversation cases stemmed from a report by the Commission on Audit’s Special Task Force for Local Government Units, which reviewed contracts of Metro Manila local governments with procurement amounting to P1 million and above, among others.

During the proceedings, the prosecutors said the Makati City government, then led by Binay, did not conduct the required public bidding when it purchased P9.9 million worth of hospital equipment from Apollo Medical Equipment and Supplies (AMES) in 2001 and 2002.

The prosecutors also found that the said supplier was not registered under the Food and Drug Administration as medical distributor.

In the decision, the court explained that “conspiracy requires the same degree of proof to establish the crime beyond reasonable doubt.” The Sandiganbayan said, despite the “overwhelming” documentary evidence, the prosecution failed to show that conspiracy existed in the transaction in question. 

The court explained that the prosecution’s allegation about conspiracy was only based on “purported roles” of the accused – including Binay – and no other evidence was provided to prove there was “a community of conscious and criminal design.”

The mere affixing of signatures on documents – such as vouchers, among others – in an allegedly questionable transaction was not enough to link them to the so-called conspiracy, the ruling added. 

Due to the absence of conspiracy, the court said the criminal liability of each accused would be based on their “precise participation” in the alleged crime. In the decision, the Sandiganbayan noted that violation of procurement laws does not automatically mean a person is guilty of section 3(e) of Republic Act No. 3019.

The court said the evidence was not sufficient to show that Binay and her acquitted co-accused acted “with evident bad faith nor manifest impartiality” when they directly contacted the supplier. 

“No evidence was presented to prove that the subject procurement was purposely and intently pursued by the accused to fraudulently benefit themselves and the supplier. The prosecution simply failed to show that the accused were spurred by any corrupt motive,” the ruling read. 

Why Binay underlings fell

As to the convicted co-accused, the Sandiganbayan said the court was convinced that Pamintuan and Delos Reyes committed “gross inexcusable negligence” when it recommended the award of purchase to the supplier “despite glaring deficiencies in the requirements necessary to justify resort to direct purchase.”

The court said the prosecution “successfully challenged” the authenticity of the license to operate submitted by the supplier. As members of the committee on canvass, who were tasked to review documents submitted by suppliers, Pamintuan and Delos Reyes should have flagged the expiry of the license, said the ruling. 

“Undoubtedly, it was because of accused Pamintuan and Delos Reyes’ gross inexcusable negligence that allowed AMES to derive unwarranted benefit advantage or preference from the questioned transaction,” the decision said. 

On malversation

Article 217 of the Revised Penal Code defines and penalizes malversation. The offense is committed when “any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property.”

The Sandiganbayan listed the offense’s elements, which are:

• The offender is a public officer.
• He/she has control over funds due to his/her position as a public officer.
• Funds or properties involved are public funds.
• He/she “appropriated, taken, or misappropriated, or has consented to, or through abandonment or negligence, permitted the taking by another person of such funds or property.”

In Binay’s case, the Sandiganbayan said the only question was whether Binay and her co-accused fell under the fourth element. The court said it believed Binay did not fall in the said category. 

The Sandiganbayan said the documents in the transaction were prepared before Binay affixed her signature, adding that it was not proven that she and her fellow accused had “foreknowledge” of the anomaly in the transaction when they signed the necessary documents. 

The court, citing the prosecutors, said that documents were falsified through the use of the phrase “Cryosurgical units and.” However, the Sandiganbayan said the prosecution’s explanation were based on speculation “which cannot serve as a basis for conviction.”

It added that there is no evidence to show that the insertion of the words was made by Binay or any of the accused “and at exactly what point in the procurement or disbursement process was such alleged insertion made.” In addition, the anti-graft court said the alleged misdelivery was discovered only after the Makati City government paid for the equipment in question.

“In the absence of any peculiar circumstance which should have aroused a sense of suspicion or curiosity on the part of accused Binay and Yamane-Garcia, they were not expected to countercheck the Report of Inspection and personally inspect each and every item procured by and delivered to the City of Makati, including the subject medical equipment, if only to ensure that they were not approving a fraudulent transaction,” the decision read. – Rappler.com