No easy ride for Elenita Binay

Marites Dañguilan Vitug
No easy ride for Elenita Binay
New factors – a reputable Ombudsman and a whistleblower – can’t get her away from graft cases

MANILA, Philippines – Elenita Binay has not been as lucky as her husband, Jejomar, in fending off graft and malversation charges. Way past her term as Makati mayor (1998-2001), she continues to face 7 cases before the Sandiganbayan.

Compare this to zero for Jejomar who ruled the premier city for a much longer period, close to 20 years. All 5 cases against Jejomar were either withdrawn by the Office of the Ombudsman or dismissed by the anti-graft court.

In an earlier report, we reviewed these cases and found that feeble prosecution coupled with bribes to the lead prosecutor kept Jejomar unscathed from the 1980s till 2010.

Elenita, however, is navigating new territory. While the charges filed against her are old, similar to those that hounded her husband – rigged bidding, excess purchases and overpricing of supplies – the environment she finds herself in is new.

Two factors are working against her: the current team at the Office of the Ombudsman, known for their determined effort to curb corruption, and the emergence of a whistleblower, Ernesto Aspillaga, one of her co-accused. Aspillaga is former head of the general services department of Makati City Hall.

7 cases

Three of the cases cover repeated public bidding of office furniture and partitions for the New Makati City Hall building which were found by the Commission on Audit (COA) to be sham biddings. Total cost of the fraud to the city of Makati was a whopping P107 million.

The remaining 4 stemmed from COA’s findings on exorbitant prices of equipment for the Ospital ng Makati. The city entered into a negotiated contract with a company, Apollo Medical Equipment, that claimed to be the exclusive distributor of a certain brand of hospital bed, bedside cabinet, Intensive Care Unit bed, orthopedic bed and sterilizers. It turned out that Apollo’s documents were “spurious” and apparently was an excuse not to conduct public bidding.

Two factors are working against Elenita Binay: the current team at the Office of the Ombudsman, known for their determined effort to curb corruption, and the emergence of a whistleblower, Ernesto Aspillaga.

How much did all these purchases – 102 hospital beds, 202 bedside cabinets, 10 ICU beds, 4 orthopedic beds, 5 sterilizers – cost Makati taxpayers? P45.2 million. COA’s Heidi Mendoza, who led the special audit, testified in the Sandiganbayan and Senate on these overpriced purchases.

The Sandiganbayan cases against Jejomar show that Elenita appeared to have simply taken off from where her husband had left. By the time Elenita ran Makati, her husband had ruled it for 11 years, presiding over these dubious practices. Elenita just warmed the mayor’s seat and handed it over to her spouse who, once again, enjoyed an untrammelled hold over the city for another 9 years.

Revived cases

Under the watch of Conchita Carpio Morales, cases on the overpriced Ospital ng Makati equipment were revived, this time including Elenita among the accused. These were filed with the Sandiganbayan in August 2013 and January 2014.

Elenita got a reprieve during the short period that Orlando Casimiro (former overall deputy ombudsman) was acting Ombudsman. (He assumed the post after Merceditas Gutierrez, faced with an impeachment trial, resigned.) One of his first acts after Gutierrez left on May 6, 2011 was to approve the filing of charges against the other Makati officials, except Elenita, for lack of evidence.

Casimiro sided with Elenita on the ground that a public officer cannot be faulted for an offense if he/she merely relied on good faith on his/her assistants. This argument arose from a Supreme Court case, Arias v. Sandiganbayan, which decided in favor of a public works official, and which has since been known as the Arias doctrine.

The resolution approved by Casimiro, which was later overturned by Carpio-Morales, argued:

      As the final approving authority…respondent Binay is within the scope of the Arias doctrine, the evidence showing that she had relied in good faith on the representations of respondent Aspillaga, as the City General Services Officer, and of respondent Santiago, as City Administrator, that the transaction was regular on its face.

      …there is no showing that respondent Binay either acted in conspiracy or is outside of the coverage of the Arias doctrine. A painstaking review of the evidence reveals that respondents Santiago and [Dr Mabel] Asunio [chair, Ospital ng Makati obstetrics department] had crafted the Purchase Requests and Orders so well that there was nothing before respondent Binay that would have behoved her to examine the purchase further. 

Lawyers we spoke to say that public officials like to use the Arias case as a shield but it was decided based on peculiar circumstances and cannot apply to graft cases with different sets of facts.

Elenita Binay: custodian of funds

Others who were accused in the Ospital ng Makati case, led by the city administrator, Nicanor Santiago, and Aspillaga argued uniformly in their motions for reconsideration (MR) with the Sandiganbayan that the findings of graft and malversation were “utterly baseless.”

Santiago and Aspillaga said they were not the custodians of the funds; it was the approving authority, Mayor Elenita Binay, who was also chair of the committee on awards. “If the actual custodian of the public funds allegedly malversed is not being charged for malversation, no one else could be charged with the offense,” the two officials said.

(Aspillaga would later testify in the Senate blue ribbon subcommittee about rigged bids in Makati.) 

Aspillaga had previously described the biddings in Makati as ‘bidding-biddingan’ or rigged.

The MRs filed by the rest of the co-accused opened the door for a review of the entire case by the new Ombudsman, leading to the inclusion of Elenita. The special prosecutor assigned to the case found the Arias doctrine to be inapplicable: “It is undeniable that Binay extensively participated in the most decisive parts of the procurement process and in the eventual disbursement of funds…she cannot disclaim responsibility and liability…Good faith is a matter of defense that should be determined in the course of trial.”

Lawyers of Elenita from the Yorac Arroyo Chua Caeda and Coronel firm assailed the Ombudsman for resurrecting these cases, saying these had already been dismissed and were “final and executory.” They also cited violations of their client’s right to due process.     

Whistleblower Aspillaga

The other factor that is making life difficult for Elenita is the emergence of whistleblowers, including Aspillaga, her co-accused in the Ospital ng Makati case. His testimony before the Senate blue ribbon subcommittee and addition information he may provide can bolster the prosecution.

Aspillaga was also charged, together with Elenita, in the cases of rigged bidding of office furniture. He is now under the witness protection program of the justice department. Some lawyers we spoke to say he could be a state witness.

It has been 8 years (2006) since this first set of cases was filed versus Elenita. They remain unresolved to this day.

We requested records of these cases with the various clerks of court in the Sandiganbayan where these are pending but they all had the same reply: the documents are with the justices. At the records section, when asked about the status of these cases, all they could say was these were pending and they identified the handling divisions.

Will the Sandiganbayan move faster this time? With an opaque case tracking system, it is hard to say. – Rappler.com

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Marites Dañguilan Vitug

Marites is one of the Philippines’ most accomplished journalists and authors. For close to a decade, Vitug – a Nieman fellow – edited 'Newsbreak' magazine, a trailblazer in Philippine investigative journalism. Her recent book, 'Rock Solid: How the Philippines Won Its Maritime Case Against China,' has become a bestseller.