When the guilty is ‘not guilty’

PerryScope
By Perry Diaz

Makati City Mayor Junjun Binay

First introduced into Philippine jurisprudence in 1959, the “doctrine of condonation” has become the elected officials’ “escape hatch” from potential administrative liability committed during a previous term. In other words, it’s a “not guilty” verdict sans judicial process, absolving the elected official from past administrative misconduct for as long as he gets re-elected to another term. The only exception to this doctrine is that it doesn’t apply to criminal cases.

Makati City Hall Parking Building

This is the gist of Makati City Mayor Jejomar “Junjun” Binay Jr.’s contention before the Supreme Court that since he’s been reelected mayor in 2013, he is immune from administrative liability in connection with the alleged overpricing in the construction of the Makati City Hall parking building, which was built during his first term. By invoking the “doctrine of condonation,” Binay claims that by virtue of his reelection, he’s forgiven for whatever administrative liability he might have had committed during his previous term.

And this is where his case goes into a grayish area. Did he commit a crime when he made – inadvertently or advertently — an administrative error? Or was a crime – e.g., dishonesty, graft, plunder – committed in approving the overpriced cost of building the parking building?

Unconscionable overpricing

Last year, a group of Makati City citizens brought graft and plunder charges against Vice President Jejomar “Jojo” Binay, his son Junjun, and 23 others over alleged “unconscionable overpricing” in the construction of the 11-story parking building that was supposedly built for P1.56 billion. In their complaint filed before the Ombudsman, lawyer Renato Bondal and Nicolas Enciso VI, members of the group known as the “Save Makati Movement,” claimed that it was “the most expensive parking building in the entire country, if not the entire world.”

In their complaint, the group said that the project was “proposed and approved” in 2007 with an initial budget of P400 million during the administration of then Mayor Jojo Binay. The complainants claimed that based on the construction cost estimate by the National Statistics Office (NSO), the project should have cost only P245.6 million. They said that the city should only have paid P7,691 per square meter, but the project cost was marked up to P48,859 per square meter when it was completed in 2013, or an overprice of a whopping P1.255 billion! Accusing the elder Binay and his son of “despicable mismanagement and gross abuse of public funds,” Bondal and Enciso sought the preventive suspension of the Binays to keep them from influencing the investigation by the Ombudsman.

Preventive suspension

On March 12, 2015, Ombudsman Conchita Carpio-Morales issued a preventive suspension against Junjun Binay and 20 other Makati City Hall officials for six months pending the preliminary investigation into the alleged overpricing in the construction of the Makati City Parking Building. But in an act of defiance, Binay said he would not vacate his office even if the Department of Interior and Local Government (DILG) serves him the order. “Hindi kami aalis dito. Ang stand nga namin ay there is no reason for the suspension order,” Binay told reporters, which makes one wonder: Is this how the Binays would rule when the elder Binay were elected President? Hmm…

On March 17, Junjun submitted a petition for certiorari to the Court of Appeals (CA) asking for the issuance of a temporary restraining order (TRO) on the implementation of Binay’s suspension. The CA issued the TRO and also directed the Ombudsman to file her comment on Binay’s plea to cite her in contempt for defying the TRO.

The Ombudsman then filed a petition for certiorari to the Supreme Court (SC) to stop the implementation of the CA’s TRO. Morales argued that the Office of the Ombudsman is an independent constitutional body, which must be protected from the “unconstitutional interference” of the CA Sixth Division.

The CA Sixth Division retaliated by issuing a writ of preliminary injunction on the Ombudsman’s preventive suspension. Then the government’s Solicitor General, Florin Hilbay, came to the Ombudsman’s rescue. “Does the Court of Appeals have statutory authority from Congress to issue a writ of preliminary injunction on [orders] of the Ombudsman? No, because we cannot find any statutory authority with such express provision,” Hilbay said during the oral argument before the High Court.

Believe it or not

Trillanes: “Scam in Makati bigger than pork theft.”

While all the players of this “zarzuela” are dancing to their own tunes, Sen. Sonny Trillanes introduced Senate Resolution 1265 calling for a probe on “justice for sale” involving CA justices. Trillanes claimed that a prominent lawyer had arranged for Junjun Binay a P50-million bribe to two of the three CA Sixth Division justices for the issuance of a TRO and, eventually, a writ of preliminary injunction against the Ombudsman’s suspension order.

Trillanes claimed that the two justices initially received P20 million each for issuing the TRO. But when the Ombudsman, the DILG, and the Department of Justice ignored the TRO, another P5 million was given to each of the two justices for the issuance of a writ of temporary injunction. “This was purportedly the reason why the concerned CA division issued the writ of preliminary injunction with undue and inordinate haste, long before its TRO is supposed to elapse,” Trillanes said.

Institutionalized corruption

Chief Justice Ma. Lourdes Sereno and Junjun Binay (inset).

It was about this time that the lawyers pleading Junjun’s case before the Supreme Court invoked the “doctrine of condonation.” In short, they begged the High Court to forget all the charges of overpricing; to forget all the accusations of corruption; and to forget all allegations of bribery. Yes, just for being reelected to another term, Junjun Binay would be forgiven and deemed “not guilty” of all administrative wrongdoings while he was in office.

This led Chief Justice Maria Lourdes Sereno to scold Binay’s lawyer, Sandra Marie Coronel, for repeatedly insisting that the “doctrine of condonation” – which was adopted from American jurisprudence — is ground for removal of Binay’s administrative liability over the alleged overpricing of the parking building.

Three legal luminaries – retired Associate Justice Vicente Mendoza, San Beda College of Law Dean Ranhilio Aquino, and former U.P. Law Dean Pacifico Agabin – all agreed that the Philippine legal system does not have to be stuck with the 56-year-old doctrine. According to Mendoza, the ruling on condonation doctrine can be abandoned, retained or modified. It’s up to the High Court to make that decision and it doesn’t require any legislative action.

Mendoza explained that it can be retained “with respect to minor administrative lapses of public officials like light misconduct where his re-election means condonation as in the 1959 Pascual case.” “But where the administrative offense is serious like dishonesty and was not publicly well known, the ruling [condonation] should not apply. I think this is how the [Binay] hearing should proceed,” he said.

If the Supreme Court upholds the “condonation doctrine,” Sereno said that it could wipe out all statutes that provide preventive suspension. She warned about the magnitude of upholding the “condonation doctrine” of the 690,502 local elective posts in the country. And when that situation arises, it would make a mockery of justice… and the Constitution. It would make the Office of the Ombudsman and the graft court, Sandiganbayan, inutile and unable to prosecute those who are guilty of administrative wrongdoings. Yes, that would be when the guilty is “not guilty.” It’s called institutionalized corruption.

(PerryDiaz@gmail.com)