Binay’s fate lies with the Ombudsman

Marites Dañguilan Vitug

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Binay’s fate lies with the Ombudsman
How Conchita Carpio-Morales acts will test whether the vice president is immune from suit

MANILA, Philippines – Eyes are on the Ombudsman as the legal noose tightens on Vice President Jejomar Binay, with two plunder cases already filed against him: one, on the over-pricing of the New Makati City Parking Building and the other, of the Makati Science High School Building.

But it appears that the most straightforward case, and the strongest, has to do with insider revelations of his foreign bank accounts that were not declared in his Statements of Assets and Liabilities (SALN). Ernesto Mercado, former Makati vice mayor, testified before the Senate Blue Ribbon subcommittee on details of these accounts and presented Binay’s SALNs corresponding with the years in which these accounts were active.

Mercado showed records of 7 foreign accounts in Hong Kong banks, 3 of which were under the “care of” Eduviges Baloloy, Binay’s long-time aide. Deposits in these 3 accounts reached a total of US$ 71,481,95 (1996) and HK$957,912.93 (1996 and 1998).

In an interview, Mercado told us that he had submitted all the documents on Binay’s bank accounts to the Office of the Ombudsman and that fact-finding has already started. (This is the first phase of the process, to be followed by preliminary investigation.)

While the Senate Blue Ribbon subcommittee put a spotlight on the issue of Binay’s supposed illicit wealth, its chair, Senator Aquilino “Koko” Pimentel III, made clear that these would not form part of its official records. Its mandate was limited to probing anomalous transactions in Makati during the rule of Binay.

For its part, the National Bureau of Investigation is doing its own parallel investigation into some of the accusations made by the whistleblowers. Justice Secretary Leila de Lima has announced that they will refer all their findings to the Ombudsman.

All roads, thus, lead to the Ombudsman.

Binay money trail

As soon as a public official is under investigation by the Ombudsman, it can ask the assistance of the Anti-Money Laundering Council (AMLC) to scrutinize bank records. This power springs from the law creating the Office of the Ombudsman, Republic Act 6770, which provides that the Ombudsman can “request any government agency for assistance and information necessary in the discharge of its responsibilities” including examining relevant records.

During the impeachment of former chief justice Renato Corona, the Ombudsman exercised this power with vital results. The AMLC tracked Corona’s multiple bank accounts and numerous transactions involving amounts of P500,000 and above, giving the prosecution its blockbuster evidence.

In the case of Binay, what are the legal scenarios that await him?

We asked lawyers familiar with the workings of the Office of the Ombudsman and they say that, should there be substantial evidence on the non-declaration of Binay’s bank accounts in his assets statements, with documentation from the AMLC, he could be charged with perjury. All public officials fill up their SALNs under oath.

Penalties for perjury range from imprisonment from 4 to 6 months (arresto mayor) to a longer sentence of 6 months to two years (prision correctional).

In addition, a petition for forfeiture of his assets can be filed with the Sandiganbayan.

But there’s still debate in the legal community on whether the vice president is immune from suit. They say that the only way the vice president can be removed from office is through impeachment.

VP is fair game

But that is not the view of Pacifico Agabin, a constitutional law expert and former dean of the University of the Philippines College of Law. He told us that the Constitution does not guarantee the vice president’s immunity: “It’s only the President who is immune [from suit] and that is based on tradition, because he is busy handling affairs of the state. But that cannot be said for the vice president.”

If the Ombudsman decides to file cases versus Binay, Agabin foresees that the vice president, in his defense, will invoke the issue of immunity. “Then that will most likely be elevated to the Supreme Court to resolve,” he pointed out.

In the US, research from the office of Senator Alan Peter Cayetano on vice presidents who were brought to trial during their terms showed that two were indicted: Aaron Burr and Spiro Agnew. Burr was indicted for murder while he was vice president and Agnew was tried for extortion, bribery and income-tax violations – crimes committed while he was governor of Maryland. He opted to resign.

Other lawyers say the other option for the Ombudsman is to refer their findings to Congress – for them to act on by initiating an impeachment complaint against Binay. Only after the vice president is impeached can cases be filed against him.

All these scenarios will take time. With elections a little over a year away, it seems unlikely that the cases will be resolved.

Rather, they will hover as threats to Binay and he will find himself busy fending them off, explaining himself to a public that has moved away from him, as a recent survey has shown (READ: VP Binay no longer most trusted PH official – poll). –

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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.