VP Binay’s affidavit: Senators acting as judges, witnesses

By AMITA O. LEGASPI, GMA News

Published November 17, 2014 5:23pm

Vice President Jejomar Binay has submitted an eight-page affidavit to the Senate Blue Ribbon Committee formally denying the overpricing in the construction of the P2.7-billion Makati City Hall Building II and chiding senators for acting as prosecutors, judges and even witnesses against him.

Binay's sworn statement was received by the Senate panel on November 10, a few days after he was supposed to appear before the inquiry upon the investigation of the committee.

“It bears to stress that these accusations are based on the bare allegations of local political detractors. These are bare allegations not supported by evidence," Binay said in his affidavit.

"It is basic in the rules of evidence that bare allegations, unsubstantiated by evidence, are not equivalent to proof. In short, mere allegations are not evidence,” he added.

Binay has questioned the jurisdiction of the Senate Blue Ribbon Subcommittee chaired by Senator Aquilino Pimentel III. He had said that he would consider appearing before the inquiry if the committee itself invited him.

The Vice President is under investigation by the subcommittee in connection with the alleged overpricing of the Makati City Hall Building II. He was also accused during the proceedings of received a 13-percent kickback from every project of the Makati government when he was still its mayor.

The subcommittee was also looking into his alleged ownership of a farm in Rosario, Batangas—a property that didn't figure in his Statement of Assets, Liabilities and Net Worth.

Senator Teofisto Guingona III, the chairman of the Blue Ribbon committee, gave him an invitation but Binay opted to skip the hearing on November 6. Binay instead sent representatives who weren't allowed to participate in the inquiry.

He also promised to submit an affidavit to the committee that day but which was received days later on November 10.

A hearing by the subcommittee is scheduled on Tuesday, November 18.

Intimidation

The Vice President also said the subcommittee has engaged in the intimidation of witnesses who would testify in his favor and allegedly coached and rehearsed those who would lie and fabricate testimonies against him.

“Indeed, by immediately endorsing to the Witness Protection Program the persons making bare accusations against me, the subcommittee has effectively indicted me of criminal wrongdoings. In effect, they have induced and accepted as gospel truth the perjured testimonies of my political detractors,” he said, referring for former Makati Vice Mayor Ernesto Mercado, lawyer Renato Bondal, and Nicholas Enciso IV.

He further said the demeanor and declarations of Senators Antonio Trillanes IV and Alan Peter Cayetano showed that they were not after the truth.

“As declared by Senator Trillanes, among other things, his objective is to put me to jail,” Binay said.

Sought for comment on Binay’s affidavit, Senator Aquilino Pimentel III, chairman of the subcommittee, said he had yet to see the affidavit.

Trillanes and Cayetano, on the other hand, have yet to give a reply to GMA News Online.

“It must be emphasized, the Senate shall constitute as the impeachment court in case the House of Representatives initiates an impeachment proceedings," Binay said.

"Therefore, the senators are unmindful of their roles as potential senator judges. Worst, these senators are acting as prosecutors, judges, and even as witnesses,” he added.

As Vice President, Binay is an impeachable official.

Binay reiterated that the accusations hurled against him were “bare allegations not supported by evidence.”

He said the hearing has veered towards false criminal accusations against him.

Not in aid of legislation

Binay said he declined the invitation of the Senate Blue Ribbon subcommittee on the ground that the inquiry being conducted was not in aid of legislation and violative of his Constitutional rights.

He said he was initially inclined to heed the invitation and attend the hearing conducted by the committee as a whole but “I could not simply disregard the rule of the law, the Constitution, and well-settled jurisprudence.”

Binay said it was not the task of the legislature to investigate the culpability of government officials and determine anyone’s guilt or a crime or wrongdoing but to make laws.

He said there is no congressional power to “expose for the sake of exposure” and it is the Ombudsman who has the duty to investigate any public official or employee.

“It is unfortunate that some senators have been using and continue to use the subcommittee to brazenly violate all the foregoing tenets of the Supreme Court...the subcommittee was used and continues to be used to prosecute and judge me and my family on malicious and unfounded criminal accusations in utter disregard of our Constitutional rights,” he said.

Binay said that the inquiry had gone beyond the scope of permissible areas allowed to be intruded into under the Constitution.

He said he and his family members were subjected to trial by publicity as the hearing was not the proper forum to hear the accusations against them and they were being held to answer unsubstantiated criminal accusations based on hearsay and other inadmissible evidence.

Nothing irregular

The Vice President also reiterated in his affidavit that there was nothing irregular with the construction of the Makati building II.

He said the construction of the building into five phases or splitting the contracts was not prohibited by the Government Procurement Act (Republic Act 9184). He added bidding was conducted in each phase in compliance with the law.

He also countered the claim of Commission on Audit chairman Grace Pulido Tan that the conduct of the entire procurement process for infrastructure projects of more than P50 million should take six months as the implementing rules and regulation of RA 9184 states the minimum period should be 28 calendar days while the maximum period was 144 calendar days.

“Based on the records, the procurement or bidding process for each phase of the Makati City Hall building II project was conducted within the allowable periods of the law,” he said.

He also said awarding contracts to a lone bidder after the conduct of biddings is not prohibited.

“In Phase 1 of the Makati City Hall building II project, the winning bidder bested two other bidders. For Phase 2 to 5, the lone bidder was the same contractor. Based on the records, there was no reason to disqualify the said contract,” he said, referring to Hilmarc’s Construction Corporation.

He added that in each phase of the project, there were no grounds not to award contracts.

No COA disallowance

Binay also said that there were no audit observation memos or disallowances issued by the resident COA in all the years during the construction of the project.

“The implication of the non-issuance of AOMs or disallowances by the resident COA for the aforesaid period is that there were no anomalies and that all the requirements of the Procurement Act were complied with,” he said.

He further said that each phase of the project was submitted for contract review by the COA and subjected to technical inspection of COA. He said there were 10 COA reviews from 2008 to 2013 which remain valid and effective up to this date and enjoy the legal presumption of regularity.

Binay also said the National Statistics Office data presented during the hearing cannot prove that the building was overpriced as the agency based its computations on approved building applications and documentary requirements and not on actual construction cost.

The Vice President also said the purported costs of other buildings cannot prove that the building was overpriced because there were different scopes of work, specifications, design, and bills of material.

He added that the market value appraisals could not likewise prove that the building was overpriced as Federico Cuervo, appraiser who served as resource person during the hearings, admitted that his testimony was only hypothetical costing.

He also noted that the Davis Langdon and Seah handbook cannot prove overpricing because its data is subject to limitations.

“The mere ocular inspection of the building, even by experts, cannot prove that the building is overpriced,” said Binay.

He said the Procurement Act does not require the procuring entity to limit the construction costs to NSO data, costs of other buildings, or the Davis Langdon and Seah handbook. —NB, GMA News

Tags: jejomarbinay, makaticityhallbuilding2