REPUBLIC OF THE PHILIPPINES
DEPARTMENT OF JUSTICE
OFFICE OF THE CITY PROSECUTOR
MAKATI CITY
JEJOMAR C. BINAY,
Complainant,
I.S. NO. _________________
For: Libel
- versus ERNESTO S. MERCADO,
Respondent.
X--------------------------X
REPUBLIC OF THE PHILIPPINES . )
MAKATI CITY, METRO MANILA .... ) S. S.
COMPLAINT - AFFIDAVIT
I, JEJOMAR C. BINAY, of legal age, married, Filipino, after
being sworn in accordance with law, hereby depose and state:
1.
I am the duly elected and incumbent Vice President of the
Republic of the Philippines.
2.
I am filing the instant criminal complaint against
respondent ERNESTO S. MERCADO (“Mercado”) for libel as defined
and penalized in Article 355 in relation to Article 353 of the Revised
Penal Code.
2.1. Respondent Mercado is of legal age, Filipino,
and a losing candidate for the position of Mayor of Makati
City in the May 2010 Elections. For purposes of the
instant criminal complaint, respondent Mercado may be
served with summons and other processes of the
Honorable Office at his address at 23 Arellano St., West
Rembo, Makati City.
3.
I was a student activist and a human rights lawyer before
becoming the Mayor of Makati in 1986. As a public servant for the
last twenty nine (29) years, I worked very hard to establish my
reputation as a competent, compassionate, pro-poor, law-abiding and
hardworking public official.
1 | Page
3.1. My honesty, hard work, competency and
service with compassion, previously as Mayor of Makati
City and now as Vice President, were rewarded by the
high public trust rating and net satisfaction rating I
consistently enjoyed for the last five (5) years. Until
recently and as a result of the relentless, orchestrated
and well-funded attacks by my political opponents, I
consistently led by a wide margin in all the Presidentiable
surveys conducted by polling companies such as Pulse
Asia and Social Weather Station (SWS).
4.
In view of my high public trust and approval ratings,
individuals motivated by ther (i) political ambitions, (ii) disdain and
personal animosity toward me, and/or (iii) insatiable greed for power
and money, have individually and/or in conspiracy with other persons,
decided to blatantly and publicly malign my good name and
reputation, which I have worked so hard for, all in the hope that
through their devious and conniving scheme and machinations, I will
no longer run as President in the May 2016 Elections, or, my name
and reputation will be so blackened from the baseless and fabricated
accusations against me that I will lose the trust and confidence of the
voters in the next presidential elections.
5.
Among these individuals who have publicly spewed lies
and defamatory statements against me is respondent Mercado.
6.
On 18 November 2014, respondent Mercado publicly
imputed criminal wrongdoings against me in the investigation being
conducted by the Subcommittee of the Senate Committee on Public
Accountability and Investigations under P.S. Resolution No. 826. In
the presentation of respondent Mercado that was broadcasted live by
several television and radio stations across the country, respondent
Mercado accused me of allegedly engaging in a system of corruption
in exchange for taxes and building permits, to wit:
MR. MERCADO: Iyan po ang “Sistema ng
Corruption sa Makati Condo Unit Kapalit ng
Buwis at Building Permit.” xxx
xxx xxx xxx
Bakit ka naman hindi magbibigay ng
condominium unit, kay isa kay dalawa, kung
ang mamemenos mo naman ho, halimbawa,
sa isang condominium ay magbabayad ka ng
mga kwarenta milyones sa isang taon, pero
matitipid mo iyong 40 million ‘pag in-adjust ng
isang taon iyong simula ng bayad ng taxes?
2 | Page
Iyong hinihingi naman sa iyong condominium
na isa o dalawang unit ay halagang 30 million
lang din, aba eh, papayag ka na. Iyon ho ang
sistema kung bakit ba open secret sa tagaMakati na si VP Binay, sa kanyang panahon
ng panunungkulan bilang mayor, ay may
condominium unit kada building.”1
7.
As intended by respondent Mercado, print media likewise
carried articles containing the malicous and baseless accusation he
made against me. Among these was the article entitled “Only Ayalas
didn’t give Binay condos” published in the 19 November 20142 issue
of the Philippine Daily Inquirer, a print and online newspaper of
general circulation, to wit:
“Only Ayala Corp. did not play ball in the
sleazy “open secret” property transactions in
Makati City.
The deal allegedly was that Vice President
Jejomar Binay, then Makati mayor, would
get a unit in most of the condominium
buildings in the city in exchange for tax or
permit concessions, except from those
owned by the Ayalas, former Vice Mayor
Ernesto Mercado testified on Tuesday.”
[Emphasis supplied]
8.
Online media also carried articles containing the baseless
accusation of respondent Mercado. In fact, GMA News Online, an
online newspaper of general circulation, published an article entitled
“Ex-ally says VP Binay owns units in 60 percent of Makati condos” on
18 November 20143 which cites respondent Mercado’s allegation that
I owned units in “60% to 70%” of the condominiums in Makati:
"Ito naman ay di lang ngayon
pinaguusapan kundi pinag uusapan sa
mahabang panahon na sinasabi na si VP
Binay may unit sa lahat ng condo sa Makati.
Sinasabi ko naman, di naman lahat. Siguro
mga 60%-70% lang naman," Mercado said in
the 12th hearing of the subcommittee on the
alleged cases of corruption in Makati during
Binay's mayoralty.” [Emphasis supplied]
1
Transcript of Stenographic Notes (TSN), Blue Ribbon Committee Hearing, 18 November 2014,
p. 104. (Pertinent portions of the TSN are attached as Annex “A” of the Complaint-Affidavit.)
2 Attached as Annex “B” of the Complaint-Affidavit.)
3 Attached as Annex “C” of the Complaint-Affidavit.)
3 | Page
9. Clearly, the foregoing acts of respondent Mercado in
connection with the defamatory statements made against me
constitute a violation of Article 355, in relation to Article 353 of the
Revised Penal Code, the essential elements of which are as follows:
a)
There is an imputation of a crime, or of a vice
or defect, real or imaginary, or any act, omission,
condition, status, or circumstance;
b)
The imputation is made publicly;
c)
The imputation is malicious;
d)
The imputation is directed at a natural or
juridical person, or one who is dead;
e)
The imputation tends to cause the dishonor,
discredit or contempt of the person defamed. [cf. Reyes,
The Revised Penal Code, Vol. II p. 921]
10. There is no question that I am the person defamed by
respondent Mercado in his presentation publicly aired in several radio
and television programs across the country, as well as reported in print
in the Philippine Daily Inquirer and published online in GMA News
Online.
11. The subject libelous statements falsely and maliciously
impute on me, despite the utter lack of evidence, the commission of
various crimes and violations of law, including but not limited to those
defined and penalized under the Anti-Graft and Corrupt Practices Act
(Republic Act No. 3019).
11.1. The libelous statements attributed to
respondent Mercado in the articles entitled “Only Ayalas
didn’t give Binay condos” and “Ex-ally says VP Binay
owns units in 60 percent of Makati condos” maliciously
impute that I allegedly received condo units in exchange
for issuance of permits of tax concessions during my term
as Mayor.
12. The afore-quoted libelous statement made by respondent
Mercado, which were aired in several radio and television programs
across the country and thereafter quoted and published in several
newspapers such as the Philippine Daily Inquirer have likewise
imputed on me vices and defects, which caused me dishonor,
discredit and contempt.
4 | Page
13. It bears emphasis to state at the risk of being redundant
that all the malicious imputations publicly made by respondent
Mercado and reported in the libelous articles entitled “Only Ayalas
didn’t give Binay condos” and “Ex-ally says VP Binay owns units in 60
percent of Makati condos” are false, baseless and without factual
basis as shown by the following.
13.1. Respondent Mercado has not presented any
credible and admissible evidence to support or
corroborate his bare allegation that I allegedly receive
condo units in exchange for building permits and tax
concessions.
13.2. In fact, it bears emphasis that Mr. Ariel Olivar,
whom respondent Mercado accused of being my dummy
to hide my ownership of a condominum unit in The Peak
Tower, one of the alleged condominum units I supposedly
received in exchange for the issuance of permits and/or
tax concessions, admitted that he received his
instructions from respondent Mercado himself and which
fact respondent Mercado also admitted, to wit:
“MR. OLIVAR. Kasi noong panahon po na
magkasama pa sila ni Vice Mayor Mercado,
sinabi po sa akin ni Vice Mayor Mercado kung
puwedeng gamitin iyong pangalan ko para
ipangalan dito sa condominium unit na ito. So,
pumayag naman po ako.
THE CHAIRMAN (SEN. PIMENTEL). Ano po
ang kapalit?
MR. OLIVAR. Wala pong kapalit, Your Honor.
THE CHAIRMAN (SEN. PIMENTEL). Pero
sure ka na may naalala kang may pinirmahan
kang dokumento in relation to your purchase
or acquisition of this condominium unit?
MR. OLIVAR. Mayroon po akong naalala kaya
lang hindi ko na po matandaan kung anong
dokumento iyon.”4
xxx
4TSN,
Blue Ribbon Committee Hearing, 22 January 2015, p. 160. (Pertinent portions of the TSN
are attached as Annex “D” of the Complaint-Affidavit.)
5 | Page
“MR. OLIVAR. Oho. Naalala ko ho mayroon
akong mga pinirmahan na dokumento rito.
THE CHAIRMAN (SEN. PIMENTEL). Okay.
So, iyong alegasyon mo na si Vice President
Binay ang may-ari ng unit mo ay galing lang sa
information ni Vice Mercado. Siya lang ang
nagsabi sa iyo.
MR. OLIVAR. Noon po kasi, ginamit po ito ni
Vice Mayor Mercado, ito pong unit na ito. So,
after po noon, pagkatapos niyang magamit
iyong unit so isinurender na niya po ulit kay
Vice President Binay.
THE CHAIRMAN (SEN. PIMENTEL). Paano
mo alam?
MR. OLIVAR. Iyon po ang pagkakasabi sa
akin ni Vice Mayor Mercado.”5
xxx
“THE CHAIRMAN (SEN. PIMENTEL). Okay.
Pero iyon na nga. From your testimony, never
naman kayong nagharapan ni Vice President
Binay when he was mayor to talk about this
unit, wala?
MR. OLIVAR. Hindi po kami nagkaharap ni
Vice President Binay. Si Vice Mayor Mercado
po.
THE CHAIRMAN (SEN. PIMENTEL). Oo nga.
Iyong impormasyon mo nga galing nga kay
Vice Mayor Mercado.
MR. OLIVAR.Opo, opo.”6
xxx
THE CHAIRMAN (SEN. PIMENTEL). Okay.
So, I think that’s all the information we can get
from Mr. Olivar.
5
6
Ibid., at p. 161.
Ibid., at p. 162
6 | Page
Vice Mayor, sa iyo pala nangagaling iyong
information na kay Vice iyan. So, ano naman
ang basehan?
MR. MERCADO. Tama po. xxx”7
13.3 Further, respondent Mercado’s accusation
against me was belied by the statements issued by SM
Development Corp., Megaworld Corp., Robinsons Land
Corp., Rockwell Land Corp., and Eton Properties that
they gave condominium units to me or any member of
my family in exchange for tax or permit concessions.8
14. Clear from the foregoing is that the damaging and ruinous
claims spewed out by respondent Mercado are mere concoctions and
fabrications with no other purpose than to malign, discredit, ruin my
reputation and besmirch my good name as well as that of my family.
15. To further put the motives of respondent Mercado in
maligning my name and reputation in the proper perspective, the
events that transpired in connection with the 2010 mayoralty race in
Makati City must be noted.
15.1. Respondent Mercado aspired to be Mayor of
Makati City in the May 2010 Elections, and was relying
heavily on my endorsement.
15.2. I incurred the ire of respondent Mercado when
I did not endorse his candidacy for Mayor of Makati City.
15.3. Worse, the political party of which I was a
member decided to field my son, Jejomar Erwin S. Binay,
Jr., which respondent Mercado further considered a
personal affront I further committed.
15.4. Worst, respondent Mercado not only lost the
mayoralty race by a landslide vote, he also suffered
substantial financial losses due to his failed bid.
16. Ineluctably, the foregoing libelous statements made in
public by respondent Mercado and contained in the above-quoted
libelous article published in the Philippine Daily Inquirer are attended
with malice in fact as they were prompted by ill will and spite
inasmuch as they have no factual basis whatsoever and were not
made in response to duty, but only with obvious intention to injure my
7
Ibid., at p. 164.
A copy of the article entitled “5 big developers deny giving condo units to Binay” published by
the Philippine Daily Inquirer is attached as Annex “E” of the Complaint-Affidavit.)
8
7 | Page
reputation as well as those of my family. They were clearly made with
no good intention or justifiable motive.
17. In any event, the foregoing libelous statements made in
public by respondent Mercado and contained in the above-quoted
article, being defamatory in nature, are presumed by law to be
malicious. No bona fide efforts having been made to ascertain the
truth of such statements before they were written and published in
reckless disregard of the truth, the presumption of malice applies as
these article are not privileged communication. [In re: Jurado, 243
SCRA 239 (1995)]
18. Moreover, as seen from the foregoing, the imputations in
said libelous statements made by respondent Mercado, which cause
dishonor, discredit and contempt upon my honor and reputation, were
made public by respondent Mercado as these were aired over
several radio and television programs and received by listeners and
viewers across the country. Thus, the publication stands in the same
footing as newspapers, or even more, as its audience, reach and
scope exceed those of the print media and other forms of mass
communications in the country as of now. Its pervasiveness in
national information cannot be downgraded to the level of ordinary
verbal exchanges involved in slander. [cf. Regalado, Criminal Law
Conspectus, First Edition, page 651] Indeed it is well-settled that libel
can be committed in television programs or broadcasts and was not
yet specifically mentioned in the Revised Penal Code since it was not
yet in existence then, but is included as “any similar means”. [Ibid,
citing People vs. Casten, CA-G.R. No. 07424-CR, December 13,
1974] In the instant case, the derogatory statements of respondent
Mercado were aired in various radio programs as well as shown in
various television stations across the country.
19. It also bears noting that the defamatory statements of
respondent Mercado were published in several newspapers of
general circulation such as the above-quoted article published in the
19 November 2014 issue of the Philippine Daily Inquirer. Hence, it
cannot be deined that the malicious imputations of criminal
wrongdoing made by respondent Mercado were made publicly.
20. Being a resident of Makati City, the Honorable Office of
the City Prosecutor of Makati City has jurisdiction over the instant
criminal complaint.
21. The charges being brought herein are without prejudice to
the filing of the appropriate complaints for previous or further libelous
statements written, published and/or caused to be published by the
respondent.
8 | Page
21. I am executing this Affidavit to attest to the truth of the
foregoing and for the purpose of filing a criminal complaint for libel
against the respondent under Article 355 in relation to Article 353 of
the Revised Penal Code.
IN WITNESS WHEREOF, I have hereunto set my hand this __
day of September 2015 in Makati City, Metro Manila.
JEJOMAR C. BINAY
Affiant
SUBSCRIBED AND SWORN to before me this __ day of
September 2015 in Makati City, Philippines.
CERTIFICATION
I HEREBY CERTIFY that I have personally examined the
affiant and that I am satisfied that he voluntarily executed and
understood his affidavit.
9 | Page