Sandigan acquits Elenita Binay, 2 others in overpricing case

Former Makati City Mayor Elenita Binay (in red) walks at the Sandiganbayan, which acquitted her and two others in an overpricing case involving furniture for the city hall. NINO JESUS ORBETA/PHILIPPINE DAILY INQUIRER

The Sandiganbayan Fourth Division has acquitted former Makati City Mayor Elenita Binay and two others of graft over the allegedly overpriced P13.25-million purchase of furniture for the city hall in late 1999.

This marks the first time Binay was acquitted by way of a full-blown trial. Previously, the antigraft court’s Second and Fifth Division dismissed two related graft cases on demurrer on April 7, 2011, and Oct. 28 this year, after the prosecution rested its case.

In this case, the Fourth Division cited the “failure of the prosecution to establish the elements of the offense for which they stand charged.”

In its decision promulgated in open court on Thursday, the court also acquitted Ernesto Aspillaga, former head of the city’s general services department, and Vivian Edna Edurise, corporate officer of contractor Office Gallery International Inc.

As if to stress the importance of consolidating court cases, the decision arose from the Fourth Division’s move to avoid preempting another court’s ruling on the earlier purchase order where this specific order was hinged.

The case arose from the city officials’ alleged failure to bid out the supply of P13.25-million worth of panel partitions and furniture.

Instead of conducting a new round of public bidding, the city procured the equipment in December 1999 through a “repeat order” of a September 1999 purchase awarded to Office Gallery. Prosecutors claimed this purchase was overpriced by P3.6 million.

But, the court said it cannot declare the December repeat order invalid before the Fifth Division has ruled on the separate involving the original September purchase order.

Since the September order has yet to be invalidated, the prosecution could not establish that the city officials violated Section 3(e) of the Anti-Graft and Corrupt Practices Act by acting with “manifest partiality, evident bad faith or inexcusable negligence” in undertaking the December repeat order.

“Simply put, determining the validity of the PO 10473 is premature pending the determination of the validity of PO 9989,” the decision read.

The court said it also “wonders why the prosecution did not consolidate the present case with that case before the Fifth Division involving PO 9989 in order to precisely prevent the predicament obtaining therein.”

Because it cannot rule on the repeat order’s validity, the court cannot also tackle the issue of alleged overpricing, since the pricing used in the repeat order is also based on the same figures in the original purchase.

The court also noted that state auditor Heidi Mendoza did not actually take part in the preparation of the documents that served as basis for her opinion that the purchased items were overpriced.

“This Court cannot then consider these as sufficient to overcome the presumption that the original purchase under PO 9989, of which the purchase under PO 10473 was a repeat, is valid,” the decision read.

Justice Jose R. Hernandez penned the 38-page decision, with the concurrence of Justices Alex L. Quiroz and Ma. Theresa V. Mendoza-Arcega.

The pending case involving PO 9989, worth P72.07 million, is now the sole remaining case against Binay in connection with the city hall’s allegedly overpriced office fixtures.

Binay also faces four graft and malversation cases before the Third Division over the purchase of P45-million worth of hospital beds and sterilizers for the city-run Ospital ng Makati in 2000 and 2001.

During the years leading to the May elections, the family of former Vice President and presidential contender Jejomar Binay has been beset by accusations of profiting from “moro-moro” biddings held just for show. CBB/rga