Court allows former Makati official to testify vs Elenita Binay in graft case

In yet another about-face, the Sandiganbayan has allowed state prosecutors to turn the former Makati City general services department head, Ernesto Aspillaga, into a state witness against former Mayor Elenita Binay in a graft case over an alleged anomalous procurement of P72.06-million worth of furniture for the Makati City Hall in 1999.

In a 12-page resolution dated Aug. 3, 2917, the court’s Special Fifth Division voted 4-1 to allow the Office of the Ombudsman to discharge Aspillaga as Binay’s co-accused in the graft case.

“Accused Ernesto A. Aspillaga can now take the witness stand in line with the prosecution’s motion to discharge him as a state witness pursuant to Section 17, Rule 119 of the Revised Rules of Criminal Procedure,” read the resolution penned by Associate Justice Ma. Theresa Dolores Gomez-Estoesta.

This overturned the Dec. 9, 2016 resolution that in turn reversed a Jan. 22, 2016 resolution in favor of the prosecution. In its appeal, the Office of the Special Prosecutor (OSP) bewailed the December ruling’s effect of “suppressing vital testimony.”

New justices

The issue arose from the court’s December ruling that the prosecution followed the wrong procedure in turning Aspillaga into a state witness.

The OSP had sought the remedy of “discharging” Aspillaga under Section 17, Rule 119 of the Revised Rules of Criminal Procedure (RRCP). However, the court said in December that the proper way would have been to “amend” the charge sheet under Sec. 14, Rule 110 of the RRCP, because Aspillaga was admitted to the government’s witness protection program.

At the time, the court voted 3-2 in favor of Binay: Justices Ronald B. Jurado, Samuel R. Martires and Geraldine Faith A. Econg were in the majority, while Gomez-Estoesta and Justice Maria Theresa V. Mendoza-Arcega dissented.

Jurado retired in February. In March, Martires became the first appointee of President Rodrigo Duterte to the Supreme Court.

By the time the appeal on the December ruling was resolved, the replacements – Justices Edgardo M. Caldona and Bayani H. Jacinto – agreed with Gomez-Estoesta and tipped the scales in the prosecution’s favor. Econg maintained her position and dissented from the majority ruling.

Correct remedy

The recent resolution penned by Gomez-Estoesta affirmed that the prosecution followed the correct procedure after all.

It said the amendment of the case information under Rule 110 “is too late a remedy to dwell into,” because the arraignment has long been held and a full-blown trial has already ensued.

Citing the Supreme Court’s 2005 Soberano ruling (regarding the case against three policemen accused in the double murder of publicist Salvador Dacer and driver Emmanuel Corbito), the Sandiganbayan said the Rule 119 remedy should be availed of when the trial is ongoing.

The court noted that it was yet to hear Aspillaga’s testimony on whether he met the requirements to be discharged as state witness. It said he should not have been prevented from speaking up on Binay’s case on a technicality.

“therwise, this would lamentably be seen as suppressing a vital and material piece of evidence that may have a niche in the prosecution of the case,” the resolution read.

Vital witness

Prosecutors considered Aspillaga’s testimony to be vital to the case because of his first-hand knowledge of the allegedly anomalous transaction as former head of the city’s general services department.

Aspillaga told the Senate blue ribbon subcommittee that almost all the public biddings conducted by the city during the Binay family’s longtime reign were rigged. He described the procurement of various contracts over the years as “a moro-moro” (just for show) and “bidding-biddingan” (pretend bidding).

Months after Aspillaga’s Senate testimony, he was admitted to the witness protection program and granted state witness immunity from criminal prosecution.

This specific case is the last pending case against Binay in connection with the alleged irregularities in the purchase of supposedly overpriced furniture for the city hall from 1999 to 2000.

Binay had won three other cases, with the Fifth Division granting her demurrer against a separate P21.7-million graft case. On April 7, 2011, the Second Division on also dismissed a P58.04-million graft case on demurrer. And on Nov. 17, 2016, the Fourth Division acquitted Binay after her P13.25-million graft case had gone through a full-blown trial.

Binay also faces four graft and malversation cases pending 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. /atm