CA stops Mayor Binay’s suspension
The Court of Appeals (CA) yesterday issued a temporary restraining order (TRO) that stopped the enforcement of the six-month preventive suspension imposed by the Office of the Ombudsman on Makati City Mayor Jejomar Erwin S. Binay Jr., some three hours after Vice Mayor Romulo “Kid” Peña was sworn in as acting mayor.
In a resolution, the CA said it issued the TRO “in view of the seriousness of the issues raised in the petition (filed by Mayor Binay) and the possible repercussions on the electorate who will unquestionably be affected by the suspension of their elective official.”
The CA ordered the Office of the Ombudsman and the Department of the Interior and Local Government (DILG) to answer Mayor Binay’s petition within a non-extendible period of 10 days from receipt of the resolution that contained the TRO.
Mayor Binay, on the other hand, was ordered to post a bond of 500,000 to avail himself of the TRO that is valid for 60 days.
The CA also ordered a hearing on March 30 and 31 on Mayor Binay’s plea for the issuance of a preliminary injunction (PI) that would extend the life of a TRO until such time that the petition is resolved on its merits.
Associate Justices Francisco P. Acosta and Eduardo B. Peralta Jr. concurred in the resolution.
Mayor Binay was ordered suspended by the Office of the Ombudsman pending the preliminary investigation of the corruption charges in connection with the construction of the city’s parking building.
Peña’s plans aborted
Before the TRO, the DILG-National Capital Region Director Renato Brion served the suspension order against Mayor Binay and several others by posting it at the facade of the city hall at about 8:30 a.m.
At 10 a.m., Peña was sworn in as acting mayor by Makati City Assistant Prosecutor Billy Evangelista at the old museum in Barangay Poblacion.
After being sworn in, Peña said he was not out to grab the post of Mayor Binay but is only following the prevailing rule of law. He had vowed to initiate moves to have a peaceful talk with Binay until the TRO was issued.
“We (Pena and) Binay have not yet talked. After this, we will discuss things. Ayokong makatapak ng ibang tao lalo na sa kanila (I don’t like to step on others’ foot, especially them). I am just a simple person,” Peña said.
In his petition, Mayor Binay told the CA that the Ombudsman committed grave abuse of discretion and violated his rights in its suspension order.
The Makati mayor said the Ombudsman “whimsically and capriciously disregarded and violated established laws and jurisprudence.”
Jurisprudence cited
He cited a Supreme Court (SC) decision which stated that a mere signature or approval appearing on the document is not enough to sustain the charge of conspiracy among public officials and employees.
“To use the words of the Supreme Court, apart from the petitioner’s signature, nothing else of real substance was submitted to show his alleged complicity in the purported crime,” his petition stated.
At the same time, Mayor Binay said his preventive suspension violated Republic Act No. 6770 which mandates that the evidence must be strong to warrant the preventive suspension of a public official.
“In this case, however, it is evident that the evidence of guilt is not strong because there is no evidence or factual basis that would sustain the charges against the petitioner as previously discussed,” the petition also stated.
Mayor Binay also told the CA that the Makati Cty Hall Building II involved five construction phases with Phases I and II undertaken before he was elected as mayor in 2010. Only Phases III to V were undertaken during his first term as mayor.
“Undeniably, petitioner cannot be held accountable for any alleged anomaly involving Phase I and Phase II of the project as he was not yet the elected mayor,” he said.
With respect to Phase III to V, which were done during his first term from 2010-2013, Mayor Binay said the Ombudsman could no longer held him administratively accountable since his reelection for a second term rendered the case against him moot and academic.
“While some of the acts attributed to the petitioner were allegedly implemented during his second term as mayor (2013-2016), the same relates to transactions (Phases III to V) concluded during his first term of office and therefore effectively condoned his administrative liability by his reelection,” he stressed.
‘Evidence negates accusation’
He added that a perusal of the supposed evidence submitted against him would negate accusation that he participated in any purported irregularities.
“Instead, respondent Office of the Ombudsman has clearly lumped the petitioner with the other respondents in the case lodged before it, with general accusations in a ‘hit or miss’ fashion, relying on a ‘conspiracy’ among all of them. However, such cannot be presumed from petitioner’s mere signature on the disbursement voucher and purchase contact,” he said.
He also pointed out that conspiracy cannot be presumed and that there is no evidence to show that he had any prior knowledge of any irregularity to be committed or that he intentionally participated in the planning, preparation or perpetration in the alleged conspiracy to defraud the Makati City government.
“In this case, respondent Office of the Ombudsman clearly acted in a capricious and whimsical exercise of judgment when she preventively suspended the petitioner despite the fact that no strong evidence, if any at all, has been presented against him,” Mayor Binay’s petition also stated.
Reasons for TRO
In granting the plea for TRO, the CA cited a 2009 decision of the Supreme Court (SC) which states that “suspension from office of an elective officials, whether as a preventive measure or as a penalty, will undeservedly deprive the electorate of the services of the person they have conscientiously chosen and voted into office.”
Also in the SC decision, the CA said that the High Court “found serious and urgent the question, among other matters, of whether the alleged acts were committed in the previous term of office of the petitioner” (in the case).
“This is because if it were established that the acts subject of the administrative complaint were indeed committed during petitioner’s prior term, then following settled jurisprudence, he can no longer be administratively charged,” the CA said quoting from the SC decision.
“It (SC) further declared imperative on the part of the appellate court, as soon as it was apprised of the said considerable grounds, to issue an injunctive writ so as not to render moot, nugatory and ineffectual the resolution of the issues in the certiorari petition,” CA said.
“The SC also declared that it would have been more prudent on the part of the CA, on account of the extreme urgency of the matter and the seriousness of the issues raised in the certiorari petition, to issue a TRO while it awaits the respective comments of the respondents and while it judiciously contemplates on whether or not to issue a writ of preliminary injunction,”
the CA added.
VP hails CA
With the TRO, Vice President Jejomar C. Binay thanked the Court of Appeals (CA) “for adhering to the rule of law” when it stopped the implementation of the six-month suspension of his son, Mayor Binay.
“The Vice President is committed to the independence of the judiciary and thank the Court of Appeals for adhering to the rule of law,” Binay’s spokesman for political affairs, lawyer Rico Quicho, said in a statement issued shortly after the CA issued the 60-day TRO.
The Vice President was in an “official function” in Pangasinan yesterday when the TRO was issued, his office said.
“He is focused on his work and would double his effort to better serve our people,” Quicho said of Binay.
‘Overkill’
Meanwhile, the camp of Vice President Binay branded as an “overkill” the deployment of 2,000 policemen, including commandos from the elite Special Action Force (SAF) at the Makati City Hall while the suspension order from the Office of the Ombudsman was served yesterday morning, saying the mayor is not a criminal.
The Binay camp claimed that some 2,000 policemen swooped down on the city hall around 4 a.m. yesterday.
“[Ang] ulat nga po [ay] 2,000, may kasama pa pong SAF troops. Hindi naman criminal ‘yong nasa loob. ‘Yon po ay elected mayor. Eh, siguro talagang ganyan po. May overkill na naman pong nangyayari (Reports said 2,000 policemen were deployment, including some members of SAF. But Junjun is not criminal. He is the elected mayor. What is happening is really an overkill,” Quicho said.
The Binay camp, however, clarified that they sympathize with the policemen “who were only being used for political purposes.”
The Binays had earlier accused DILG Secretary Manuel “Mar” Roxas II of being behind the suspension of the Makati mayor and 15 others over allegations concerning the overpriced construction of the 2.2-billion Makati City Hall Building 2. Roxas has vehemently denied the allegation of the Binay camp. (With a report from JC Bello Ruiz)