Vice President Jejomar Binay. INQUIRER FILE PHOTO/RAFFY LERMA
The camp of Vice President Jejomar Binay on Friday denied the claim of the Senate blue ribbon subcommittee that he did not answer allegations of overpricing in the construction of Makati City Hall Building II.
Lawyer Rico Quicho, spokesperson for Binay, reminded the senators that Binay submitted a notarized affidavit on Nov. 6, 2014, “debunking and answering point [by] point” the accusations against him and members of his family.
Quicho was commenting on reports that the blue ribbon subcommittee, in a partial report on its investigation of corruption allegations against Binay, said the Vice President did not take advantage of the offer to him to defend himself at the hearings.
“It is a validation of our position that the Senate has, from the very start, already prejudged the issue. They have made up their minds even before the hearing started and will not listen, tolerate, or entertain statements and facts contradicting them,” Quicho said in a statement.
Sen. Aquilino Pimentel III, Senate blue ribbon subcommittee chair, acknowledged that Binay submitted an affidavit to the inquiry, which he said was considered in the preparation of the panel’s partial report.
READ: Binay camp: Anticlimactic after 21 one-sided hearings
“It was not enough to sway the arguments, the ideas, the points. It was not enough to sway the conclusion,” Pimentel said.
He said the subcommittee received so many records and testimonies that not all could be mentioned in the report. But this does not mean, he said, that they were not considered.
While Binay submitted a statement, Pimentel said, he did not back it up with testimony before the subcommittee.
Had Binay done so, there would have been a greater chance of him being quoted in the report, Pimentel said.
“The question is, would it change the conclusion?” Pimentel said.
He said Binay’s affidavit was more like a legal memorandum, full of legal arguments.
The points raised were covered and considered, he said, but the other side had stronger points.
“Unfortunately for him, [it was] not enough to persuade and change minds because the other side of the argument or issue had more credible, substantive, and logical evidence and arguments,” Pimentel said.
The Senate blue ribbon subcommittee recommended the filing of plunder and graft charges against Binay, his son, Makati Mayor Jejomar Erwin “Junjun” Binay, Makati City Hall officials, resident auditors, contractors and his longtime aides Gerardo “Gerry” Limlingan and Eduviges “Ebeng” Baloloy.
Former Makati Vice Mayor Ernesto Mercado alleged at the hearings that Makati City Hall Building II was overpriced at P2.3 billion.
In his eight-page affidavit, the Vice President said “there was no overprice of the Makati City Hall Building II nor any irregularity committed.”
Binay said: “Constructing the Makati City Hall Building II into five phases or splitting the contracts, with the conduct of bidding for each phase, is not prohibited by the Procurement Act (Republic Act No. 9184). Section 65.1(d), Rule 21 of the IRR (Implementing Rules and Regulations) of RA 9184 provides that splitting of contracts is prohibited only if the purpose is to avoid bidding, circumvent rules on alternative procurement, or circumvent limits of approving authorities.”
Annex “C” of the RA 9184 IRR allows for a minimum of 28 calendar days and a maximum of 144 days for the conduct of the entire procurement process for projects costing more than P50 million. “Thus, the claim of the Commission on Audit (COA) Chair Grace Pulido-Tan that the process should take six months is not correct.”
“[B]ased on the records, the procurement or bidding process for each phase of the Makati City Hall Building II project was conducted within the allowable periods of the law.”
“The awarding of contracts to a lone bidder after the conduct of biddings is not prohibited by the Procurement Act.”
“In Phase 1 of the Makati City Hall Building II project, the winning bidder bested (two) other bidders. For Phases 2 to 5, the lone bidder was the same contractor. Based on the records, there was no reason to disqualify the contractor.”
The subcommittee report said Hilmarc’s Construction Inc. was a “favored contractor” that had bagged several multimillion-peso contracts from Makati City Hall.
On the alleged overpricing of the building, Binay said:
National Statistics Office (NSO) data cannot prove that the building is overpriced because “there are different scopes of work, specifications, design and bills of material.”
“NSO data cannot prove that the Makati City Hall Building II is overpriced. The NSO data has inherent limitations. The NSO based its computations on approved building applications and documentary requirements and not on actual construction cost.
“The market value appraisals cannot likewise prove that the Makati City Hall Building II is overpriced. As admitted by Mr. Federico Cuervo, the resource person of the Senate, his testimony was only hypothetical costing.”
The Davis Langdon & Seah Handbook cannot prove that the building is overpriced because the handbook “expressly states that its data is subject to limitations.”
Mere ocular inspection of the building, even by experts, cannot prove overpricing. “As held by the Supreme Court in the case of Ariola v. Commission on Audit, there must be an actual canvass or price quotations on the subject materials from accredited suppliers to prove there was an overprice.”
Rights violated
Binay also said that his constitutional rights “were and continue to be violated,” including his constitutional right not to be subjected to a congressional inquiry if the rules of the Senate are not complied with, the right to due process of law, and the right to be presumed innocent until proven guilty.
“The hearing has veered toward false criminal accusations against me. It must be emphasized, the Senate shall constitute as the impeachment court in case the House of Representatives initiates impeachment proceedings. Therefore, the senators are unmindful of their role as potential senators-judges. Worst, these senators are acting as prosecutors, judges and even as witnesses,” he said.
“As declared by Sen. [Antonio] Trillanes IV, among other things, his objective is to put me in jail,” Binay said.
Trillanes said on multiple occasions that he would not stop until Binay was jailed for his alleged crimes.
Role of legislature
Binay maintained that “[t]he role of the legislature is to make laws, not to determine anyone’s guilt of a crime or wrongdoing. It cannot adjudicate or prosecute.”
He cited the Supreme Court decision on Neri v. Senate blue ribbon committee (G.R. No. 180643, Sept. 4, 2008), which said that it is not the task of the legislature to investigate the culpability of government officials.
Binay also said that according to a Supreme Court decision, “the legislature cannot assume the powers reposed upon the prosecutorial bodies and the courts.”
“The determination of who is/are liable for a crime or illegal activity, the investigation of the role played by each official, the determination of who should be haled to court for prosecution and the task of coming up with conclusions and finding of facts regarding anomalies, especially the determination of criminal guilt, are not functions of the legislature,” Binay said.
Ombudsman power
The Vice President asserted that “(t)here is no congressional power to expose for the sake of exposure.”
“Under our Constitution, it is the Ombudsman who has the duty to investigate any act or omission of any public official, employee, office or agency when such act or omission appears to be illegal, unjust, improper, or inefficient,” he said.
“The Office of the Ombudsman is the body properly equipped by the Constitution and our laws to preliminarily determine whether or not the allegations of anomaly are true and who are liable therefore,” he said.
Binay also argued that “legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence essential to arrive at accurate and factual findings upon which to apply the law.”
“These senators insist that I should answer all the accusations hurled against me. It bears to stress that these accusations are based on the bare allegations of local political detractors. These bare allegations are not supported by evidence,” he said.
Beyond scope of inquiry
The subcommittee’s inquiry, he said, “has gone beyond the scope of permissible areas allowed to be intruded into under the Constitution.”
“I and members of my family are being subjected to a trial by publicity as the hearing is not the proper forum to hear the accusations against us,” he said.
“I and members of my family are being held to answer unsubstantiated criminal accusations, i.e., based on hearsay and other inadmissible evidence,” he added.
Binay said the subcommittee intimidated witnesses who would testify in his favor and coached and rehearsed those who would lie and fabricate testimony against him.
“Indeed, by immediately endorsing to the Witness Protection Program the persons making bare accusations against me, the subcommittee has effectively indicted me of criminal wrongdoings. In effect they have induced and accepted as gospel truth the perjured testimonies of my political detractors,” Binay said.
The Vice President said he was “initially inclined to attend” the hearings, but added that he “could not simply disregard the rule of law, the Constitution and well-settled jurisprudence.” With a report from Leila B. Salaverria
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