EMBATTLED Makati City Mayor Jejomar Erwin “Junjun” Binay on Tuesday sought refuge anew at the Court of Appeals (CA) to stop the Ombudsman and the Department of the Interior and Local Government (DILG) from implementing another six-month suspension order issued against him for his involvement in the alleged overpriced construction of the Makati Science High School Building (MSHSB).
In a 34-page petition for certiorari and prohibition with prayer for the issuance of a temporary restraining order and or a writ of preliminary injunction, the son of Vice President Jejomar C. Binay insisted that he cannot be held accountable for the alleged anomaly, since three of the seven construction phases of the MSHSB were done when he was not yet the city mayor.
The mayor argued that his liability in the subsequent construction phases, if there was, has been expunged by his reelection in 2013, under the “Aguinaldo Doctrine,” or the condonation doctrine.
The construction of Phases I, II and III of the MSHSB were undertaken before the younger Binay was elected mayor in 2010, replacing his father, Vice President Binay.
Binay added that there is no allegation in the complaint that he supposedly rigged the bidding, and that any claim of bid-rigging is based solely on hearsay evidence.
The complaint also failed to produce evidence to support its claim of conspiracy among the respondents, he said.
It appears, according to the younger Binay, that the Ombudsman relied heavily on the statement of former Makati City Engineer Mario Hechanova’s statement that Vice President Binay (when he was still the city mayor) supposedly gave instructions that the bidding for the design and construction of the MSHSB project be rigged to favor certain parties.
But he explained that the Ombudsman failed to present evidence to show acts against him.
He added that Hechanova’s allegations against the former mayor of Makati are considered hearsay, thus, should not have been given weight by the Ombudsman.
“Clearly, in finding that there is supposedly strong evidence against petitioner, the Ombudsman gave great weight to the sworn statements of Mario Hechanova, attached to the complaint. However, it must be emphasized that there is absolutely nothing in the joint order or the said sworn statements that mentions petitioner, much less attributes any act against him,” the petition added.
“Undeniably, petitioner cannot be held accountable for any alleged anomaly involving Phases I, II and III of the project, as he was not yet the elected mayor. With respect to the subsequent phases of the same project, he is being held administratively accountable by the Office of the Ombudsman, despite the clear fact that his reelection rendered the case against him moot and academic pursuant to the established ruling in Aguinaldo v. Santos. Such ruling involving suspensions in the nature of a ‘penalty’ equally applies to ‘preventive suspensions,’ as well,” Binay said.
Binay also argued that the Ombudsman violated its own charter, which requires “strong evidence” to justify the issuance of preventive suspension.
Binay specifically cited Section 24 of Republic Act 6770 and Administrative Order 07, or the Rules of Procedure of the Office of the Ombudsman, which requires strong evidence to justify the issuance of a preventive suspension order.
“Clearly, the Ombudsman whimsically and capriciously disregarded and violated the foregoing established laws and jurisprudence. Grave abuse of discretion arises when a lower court of a tribunal violates the Constitution or grossly disregards the law or existing jurisprudence,” he added.
What is worse aside from Hechanova’s statement being hearsay, according to the mayor, is that the Ombudsman also relied on his claim that Engr. Nelson Morales purportedly received the order from the elder Binay to rig the bidding, which the latter could no longer confirm or deny the same since he is already dead.
“Considering that the statement in this regard is clearly hearsay and inadmissible in court, the Ombudsman should have realized that the evidence against petitioner is not strong and without any basis whatsoever,” he added.
Binay clarified that his only participation in the bidding process was to sign documents, such as the disbursement vouchers, as well as other documents relating to the bidding.
Such act, he insisted, was not enough to sustain a finding that he is part of the alleged conspiracy.
He noted that the Supreme Court in the case of Sabiniano v. Court of Appeals held that one’s signature appearing on a document is insufficient to warrant a finding of involvement in a conspiracy.
“To use the words of the Supreme Court, apart from petitioner’s signature, nothing else of real substance was submitted to show his alleged complicity in the alleged crime,” he added.
In his complaint, lawyer Renato Bondal alleged that the construction of the MSHSB was overpriced by as much as P862 million.
Bondal, who lost against the younger Binay in the 2013 mayoral race, claimed that the MSHSB, which cost the city government P1.35 billion, should have been completed at no more than P470 million.
But the younger Binay said the Ombudsman’s Field Investigation Office perjured itself when it claimed, while the invitation and application for eligibility to bid (IAEB) for Phase 1 of the project was published, the same allegedly contained incomplete as to date, time and place of the pre-bid conference and opening of bids, such that prospective bidders were not properly informed in order to prepare and submit their bid documents on time, resulting to Hilmarc’s winning the contract.
But he said that, contrary to the complaint, the IAEB was duly published in Liberato, Daily Tribune and PhilGEPS showing the date, time and place of the prebid conference and opening of bids.
“In the same manner, the IAEB was, likewise, posted in conspicuous places of Makati City showing the date, time and place of the prebid and bidding conference,” he added. It is the second attempt of the Ombudsman to remove the younger Binay from office.
The first preventive suspension order was issued in March in connection with the construction of the Makati City Parking Building II, which Bondal said was built with a tag price of P1.314 billion, but should have only cost P245 million.
The CA, however, issued an injunction stopping the Ombudsman, the DILG and other respondents from implementing the suspension order.
The Ombudsman has elevated the issue before the SC, which earlier conducted an oral argument on whether the CA has the authority to enjoin a preventive suspension order of the Ombudsman.
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