When the guilty is ‘not guilty’

PerryScope
By Perry Diaz

Makati City Mayor Junjun Binay

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

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

Lord-of-Makati.2Last 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

Junjun-BinayOn 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.

Supreme-Court-Carpio-MoralesThe 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."

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).

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)


15 Responses. Have your say.

  1. philip says:

    Their defense is an admission of guilt, how are they going to win? I think with Sereno and Morales, who have balls bigger than most justices, in charge, this case will signal the beginning of the end of the Binay-aran dynasty. At least, they can afford to build a palatial “kubol” inside where they belong.

    • Bobby Bagos says:

      That may be so but I think it’s just more confusing crap for our kababayans to absorb. The Binays are well aware of their guilt and they will do everything in their power to beat the court system. Trillanes may not have convincing evidence to back up his accusations against the Binays, so it seems but who knows, the good Senator may have something up his sleeves, five aces and a joker perhaps. Either way, I think the Filipino people for once in their wish-washy lives better grow some common sense and not fall for the same BS from those sorry politicians whose main concern are their bank accounts and egos.

      • philip says:

        I just read today that in Indonesia corruption is punishable by firing squad just like drug trafficking. Am I only dreaming to wish that this policy can be adopted in the Philippines?

  2. Edt says:

    Hopefully, none of the Binays will be elected or reelected.

  3. raul loreto says:

    henceforth, condonation is not a rule or formally a law that can be made an excuse. A determining factor in cases where it can be applied but not necessarily be followed. It surely is a good excuse for the guilty but as the chief justice has declared, the constitution’s intent is for good governance and not to allow graft and corruption to prosper. It was probably overused by the elder Binay and now the son who wants to use it again is caught in the quagmire of good supreme court justices and the ombudsman. The elder binay may have used it and together with justices who can be paid came through with it.

  4. Narciso Fontecha says:

    i honor Ombudsman Morales and Justice Sereno for their guts in confronting these evils in government. I hope there would be a group of people rallying in support of these officials trying to provide good governance. People should rally behind them and encourage them. We should pray for them to be strong against temptation of corruption.

  5. Mac Flores, Jr. says:

    The Condonation Doctrine must be abandoned for the sake of good governance.

    One way to make this Condonation Doctrine inutile is by NO-EL (no election) so that those politicians with administrative cases have no chance to be re-elected.

    Jailing them or penalizing them will be easy.

  6. Fernando Habito says:

    Thanks Perry for your objective narrative report. It point out how this “doctrine of condonation” make it easy for corrupt politician escape from their crime.Evidently it shows how “justice with impunity” and “justice for sale” works in the nation in favor of those greedy and dishonest politicians.

  7. Jose Samilin says:

    I just hope the SC will rule out the doctrine of Condonation and proclaimed to be absolutely abandoned as non-applicable defense in any corruption cases in order to keep public officials prudent and be highly efficient in their discharge of public duties and functions. There should be no room for any doubtful determination of what is minor misdemeanor or not. All misdemeanors in the public office would always be punishable accordingly to certain appropriate degree.

  8. ron g. says:

    How can our justices allow the moiety of our justice system? We have a good one in justice Conchita Carpool. It is my hope that the Supreme Court will follow suit and prove to the whole word that NOT every jurist in the Philippines can be bought.Most of all,Filipinos must not allow the Binays to rule the country and drag us down to the position where we were the so called”THE SICK MAN OF ASIA”again.

  9. Don Azarias says:

    Perry,

    Any Supreme Court justice who will uphold Mayor Junjun Binay’s ridiculous and hilarious claim of “condonation doctrine” ought to be impeached. They should be guided by this provision accordingly: “The only exception to this doctrine is that it doesn’t apply to criminal cases.”

    I guess Binay does think he had only committed some sort of traffic violation and not a criminal offense.

    They should repeal that stupid “condonation doctrine.” It’s akin to former Chief Justice Hilario Davide’s laughable coined words “constructive resignation” when he ruled against Erap.

    Don’t you agree?

    Don

    • perry says:

      Hi Don,

      “Constructive resignation” is mostly used in high corporate executive jobs when an under-performing executive is booted out and considered “resigned.” But you can’t do that in a republican government where officials are elected for fixed terms. Naloko tayo ni Davide.

      “Condonation doctrine” is what it is: a doctrine. It’s not the law. That’s why Retired Associate Justice Vicente Mendoza said the the Sc could abandon, retain or modify the doctrine. I say, abandon it! Niloloko na naman tayo ng mga korap.

      Perry

      • Bobby Bagos says:

        In other words Perry, our country is truly screwed. You know, like a screw with a really worn out head that a regular screwdriver couldn’t even unscrew. I think our country is really at a point of no return, our system of government seemed to really keep digging itself deeper in a hole and have no idea how to get out of it. We have so many intelligent people running our country but they seemed to be going in different direction and just running into each other. I think if these people could just mix intelligence and common sense together properly our country could really prosper.

  10. Ned Ang Korap Patyon says:

    I think Binay should not entertain anymore thoughts of running for president. He’ll be just a de-stabilizing figure if he wins, and the country will start bogging down again…

    • philip says:

      I believe Omb. Morales has other ideas. Instead of Malacanang, she wants him to preside in a palatial “kubol” inside Bilibid.

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