MIRIAM SLAMS BINAY FORUM SHOPPING

Sen. Miriam Defensor Santiago said that the continued refusal of Vice-President Jejomar Binay to defend himself at the Senate hearing on plunder charges against him is tantamount to "forum shopping," which is prohibited and penalized by the Supreme Court.

Binay has said that he prefers to defend himself at the Office of the Ombudsman, where the same plunder and other cases have been filed, and has claimed that certain senators have prejudged him.

Santiago said that Binay's attempt to escape scrutiny at the Senate is similar to prohibited forum shopping in the courts which, according to the Supreme Court, takes place "when a person avails of several judicial remedies in different courts, raising substantially the same issues."

The senator quoted the Supreme Court decision in the 2010 case of SM Systems v. Camerino, where the court said that the rule against forum shopping "seeks to promote candor and transparency, and the orderly administration of justice, prevent undue inconvenience upon the other party, and save the precious time of the courts."

Jurisdiction

Santiago, a constitutional law expert, said that she expects the court to dismiss Binay's petition seeking to prevent the Senate committee from compelling him to testify at the hearing, citing the Constitution, Art. 6, Sec. 21, giving the Senate the power to conduct inquiries in aid of legislation.

The Supreme Court is bound to dismiss Binay's petition, because it is the Constitution itself which gives the Senate the power to investigate.

"In addition, Binay has already accepted Senate jurisdiction, by allowing his son and agents to testify there," the senator said.

Santiago quoted the 1997 case of Quintanilla v. CA, where the Supreme Court said: "While jurisdiction may be availed at any stage, a party's active participation in the proceedings before a court without jurisdiction will estop such party from assailing such lack."

"Binay should have assailed the jurisdiction of the Senate committee at the very outset, and he should have immediately refused to participate. Under the law, it is now too late for him to escape jurisdiction for fear that he might be humiliated or embarrassed. He is already in estoppel," the senator said.

Silence Admits Guilt

According to Santiago, Binay should present his own evidence at the Senate hearing. Otherwise, his silence might be construed as an implied admission of guilt.

Santiago cited the 2002 case of Bertulfo v. Nuñez, where the respondent was accused of gross dishonesty. Although ordered repeatedly by the court to submit his comment or explanation, respondent just kept silent. Hence, the Supreme Court said: "To us, respondent is not at all interested in clearing his name or simply has nothing to say in his defense."

She also quoted the famous 1998 case of Grefaldeo v. Judge Lacson: "The natural instinct of man compels him to resist an unfounded claim or imputation and defend himself. It is totally against our human nature to just remain reticent and say nothing in the face of false accusations. Hence, silence in such cases is almost always construed as implied admission of the truth. Silence gives consent."

COA Power to use Canvass Sheets, Price Quotations

On the COA finding that Makati government projects, including the Makati City Hall 2 parking building, were grossly overpriced, Binay has criticized the COA for its alleged failure to produce acceptable canvass sheets and price quotations to determine whether there was indeed overpricing.

"This kind of defense can be easily demolished, if COA is given the power to compel the suppliers to sign the canvass sheets which can be used as basis for an investigation of alleged overpricing. If the supplier refuses to sign, then COA should be given the power to recommend that the supplier should be blacklisted by the Government Procurement Policy Board from participating in future government biddings," Santiago said.

"There is a long line of cases where the Supreme Court upheld the special audit reports of the COA," she said.

Santiago also said she will file a bill to revive the defunct Price Evaluation Board to monitor prevailing market prices and issue a report of the rates for materials, supplies, and equipment.

Law Prohibits Business Dummies

The senator called the revelation by former Makati vice-mayor Ernesto Mercado that Binay owns a P1.2 billion estate in Rosario Batangas a "dramatic bombshell."

The 350-hectare agricultural estate appears to be owned by a corporation. Its shareholders, however, are reportedly dummies of Binay.

Santiago said that the corporation and shareholders must be investigated to determine if they are dummies for Binay.

In law, the term "dummy" refers to one who purchases property and holds legal title for another, usually to conceal the identity of the true owner. A "dummy corporation" is a corporation formed for sham purposes and not for the conduct of legitimate business. In other words, a dummy corporation is formed for the sole reason of avoiding personal liability, particularly the declaration of assets in the Statement of Assets Liabilities and Networth, or SALN.

Although we have an anti-dummy law, it refers to foreign corporations only. The charge of using dummies is criminalized by the following laws:

• PCGG Law, aka Executive Order No. 14-A, particularly its Rules and Regulations which define ill-gotten wealth as those acquired through dummies and others

• R.A. No. 1379, or the Forfeiture Law

• R.A. No. 7080, or the Anti-Plunder Law.

Ill-gotten wealth embraces the crimes of malversation of public funds, receiving kickbacks, or as stated in the PCGG Rules and Regulations, Sec. 1, para. (a), subpara. (5):

"(5): Through the establishment of agricultural, industrial or commercial monopolies or other combination and/or by the issuance, promulgation and/or implementation of decrees and orders intended to benefit particular persons or special interests."

Mercado Testimony Positive, Binay Denial Weak

The latest attack by Mercado against Binay is that at least P4 B from 10 infrastructure projects between 1999 and 2014 went to city officials as kickbacks. Some 28% from every project was allegedly shared by the mayor down to the lowest official in the web who is involved in the conspiracy. Mercado specified that from the kickback of 28%, Binay allegedly kept 13%.

Santiago said the refusal of Binay to present counter-evidence on this accusation is alarming.

"So far, no court has yet passed upon the credibility of Mercado as the tormentor of Binay. But so far because of his repeated appearance in the Senate hearings, it is Mercado who should be credited for positive testimony. His statements are based on facts supported by documents and replete with details - factors which, in jurisprudence, are considered as indicators of truth," Santiago said.

According to news reports, Binay wants to make a detailed defense not in the Senate hearing, but in the Ombudsman, where he is facing plunder and other criminal charges.

"Unfortunately, the law does not allow Binay to just choose the forum where he shall make his defense. What is happening at present is that while the Senate is conducting an inquiry in aid of legislation, the case is being tried before the bar of public opinion," Santiago said.

According to the senator, it is public opinion, and not the Senate subcommittee, that will make a finding on whether Binay is guilty.

"A senate committee does not promulgate findings of guilt or innocence. If a criminal charge is involved, all that the committee can do is to endorse the case for further preliminary investigation of the criminal aspect of the case to the Ombudsman or to the Secretary of Justice. Hence, for me as a concerned citizen, it is essential, even vital, for Binay to adduce evidence on his behalf at the Senate hearing," Santiago said.

The senator quoted the Supreme Court in the 2000 case of People v. Villanueva:

"As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail. A mere denial, like alibi, is inherently a weak defense and constitutes self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters."