Republic of the Philippines
Senate
Committee on Accountability of Public Officers and Investigations
(Blue Ribbon)
Office of Senator TeofistoGuingona III,
Chairman
RE: MOTION TO INTERPOSE
JURISDICTIONAL CHALLENGE
Mayor Jejomar Erwin S. Binay Jr.,
Movant.
x----------------------------------------------------x
JURISDICTIONAL CHALLENGE
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MAYOR JEJOMAR ERWIN S. BINAY JR., assisted by counsel,
to this Honorable Committee on Accountability of Public Officers and
Investigations (Blue Ribbon) interposes this jurisdictional challenge to this
Committee, acting thru its Sub-Committee, pursuant to Section 3, Article I
of the Rules of the Committee on Accountability of Public Officers and
Investigations (Blue Ribbon), on the following –
GROUNDS
1.
LACK OF JURISDICTION TO DETERMINE VIOLATION OF R.A. NO. 3019 AND
R.A. NO. 7080;
2. GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION BY ISSUING SUBPOENA AD
TESTIFICANDUM BASED ON THE BARE
ALLEGATIONS
MADE
BY
ERNESTO
MERCADO;
3. GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION BY VIOLATING THE RIGHTS
OF MOVANT AND LOCAL GOVERNMENT
OFFICIALS OF MAKATI CITY DUE TO THE
PREJUDGMENT AND BIAS OF SUB-COM-
JURISDICTIONAL CHALLENGE/Page 02.
MITTEE MEMBERS;
4.
GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION BY REPEATEDLY CALLING
MOVANT DESPITE HIS PREVIOUS APPEARANCE FOR THE APPARENT PURPOSE OF
HUMILIATING HIM;
5.
GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION BY CONDUCTING AN
INVESTIGATION THAT IS NO LONGER IN
AID OF LEGISLATION.
6. LACK OF JURISDICTION TO CONDUCT A “FISHING EXPEDITION” FOR
DOCUMENTS AND INFORMATION PERTAINING TO ANY AND ALL TYPES OF
PROJECTS OF MAKATI CITY FOR THE PAST
TEN (10) YEARS, TANTAMOUNT TO
UNREASONABLE SEARCH AND SEIZURE.
DISCUSSION
In the Subpoena Ad Testificandum issued by the Sub-Committee of
this Honorable Committee on Accountability of Public Officers and
Investigations (“Blue Ribbon Committee”), movant is being commanded
and required to appear before the said Sub-Committee to testify under oath
on 25 September 2014 at 10:00 a.m. in respect to what he knows relative to
Senate Resolution No. 826 introduced by Sen. Antonio F. Trillanes, IV
With all respect, the Sub-Committee committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it issued the
Subpoena Ad Testificandum against movant.
First, as borne by the transcript of the hearing held last 11 September
2014, the Subpoena Ad Testificandum was issued based solely on the bare
assertions of former Makati City Vice Mayor Ernesto S. Mercado that he
allegedly delivered bags containing money to movant and certain other
individuals.According to Sen. Aquilino Pimentel III, the appearance of
movant and the persons identified by former Vice Mayor Mercadowould
allow them to refute the accusations made against them as well as allow
theSub-Committee todetermine if they are indeed guilty of the accusations
JURISDICTIONAL CHALLENGE/Page 03.
made by former Vice Mayor Mercado.
Suffice to state that the Sub-Committee does not have any jurisdiction
to determine whether or not movant had violated Republic Act No. 3019,
otherwise known as the "Anti-Graft and Corrupt Practices Act", or Republic
Act No. No. 7080, otherwise known as the “Plunder Act”, as alleged by
former Vice Mayor Mercado, as this matter is within the province of the
courts rather than of the legislature. [Bengzon vs. Senate Blue Ribbon
Committee, G.R. No. 89914, 20 November 1991]
Second,movant, upon mere invitation to be a resource speaker, already
voluntarily appeared before the Sub-Committee’s hearing last 20 August
2014 and remained available for questioning by its members for almost five
(5) hours.
Third,in the three (3) subsequent hearings of the Sub-Committee, i.e.,
last 25 August 2014 as well as on 4 and 11 September 2014, movant, upon
prior clearance from the Sub-Committee, made all Department Heads of the
Makati City Government or their representative available as resource
speakers in connection with the Makati City Hall Building II. More
importantly, movant likewise caused the transmittal of all available
documents requested by the Sub-Committee. Thus, all information known to
and documents held by the Makati City Government that would show the
propriety of the cost incurred in constructing the Makati City Hall Building
II have already been disclosed and submitted to the Sub-Committee.
Finally,movant and other officials of the Makati City Government
have already given their sworn testimony refuting the allegations of any
purported anomalies on the Makati City Hall Building II and other
irregularities that were clearly outside the scope of the on-going
investigation, e.g., overpriced cakes, bid rigging of all projects, bribery,
illegal detention of bidders and even murder.
Clearly, therefore, it behooves the Honorable Blue Ribbon Committee
to recall and cancel the Subpoena Ad Testificandum.
Next, while movant is more than willing to appear before the SubCommittee despite of the disrespectful manner he and the other resource
persons were treated by its members, he is constrained to question, under
Section 3 of the Senate Rules of Procedure on Inquiries in Aid of
Legislation, the very jurisdiction of the Honorable Blue Ribbon Committee
to conduct investigations relative to Senate Resolution No. 826.
The following matters that transpired during the hearings of the SubCommittee wouldreadily show that the on-going investigation of the Sub-
JURISDICTIONAL CHALLENGE/Page 04.
Committee is indeed not in aid of legislation and/or is violating the rights of
the persons appearing in or being affected by said investigation. Consider:
1.
Sen. Trillanes has repeatedly said that Senate
Resolution No. 826 was filed in order to investigate any and all
possible criminal or administrative culpability in relation to the
purportedly overpriced Makati City Hall Building.
2.
Senate Resolution No. 826 itself says that its
purpose is to, among others, recommend the prosecution of
Makati City officials, including movant, involved in the
purported overprice of the Makati City Building II and all other
anomalies in Makati City.
3.
Senate Resolution No. 826 is a virtual indictment
of movant and other officials of Makati City for the purported
overpricing of the Makati City Hall Building II without being
afforded due process.
4.
The Honorable Sub-Committee has already
presumed movant and other Makati City officials guilty of
overpricing the Makati City Hall Building II unless they prove
otherwise. Thus, in the repeated statements of Sen. Trillanes
and Sen. Cayetano, movant’s appearance before the SubCommittee is to prove to them and the public hisinnocence. As
further evidence of the Sub-Committee’s prejudgment on the
guilt of movant and other Makati City Hall officials, it has
already recommended the acceptance of former Makati City
Vice Mayor Ernesto S. Mercado into the Witness Protection
Program of the Department of Justice, which would entitle said
person to immunity from prosecution for the offense or offenses
in which his testimony will be given or used.
5.
The hearings have become a fishing expedition for
evidence where documents and information pertaining to any
and all types of projects of Makati City for the past 10 years are
being required for submission. The broad and general
characterization as well as the sweeping descriptions of
documents being required by the Sub-Committee already
amount to unreasonable search and seizure proscribed under the
Constitution.
6.
The hearings are being used to publicly make
accusations against movant and other Makati City officials,
ranging from the initial overprice of Makati City Hall Building
JURISDICTIONAL CHALLENGE/Page 05.
II to the purported overpriced cakes, bid rigging of all projects,
bribery, illegal detention of bidders and even murder, that are
based on mere guesswork, inferences, conjectures. When made
in the proper proceedings, these accusations would NOThave
been allowed to be made as they are clearly inadmissible for
being in violation of the basic rules of evidence, i.e., hearsay,
speculative, hypothetical or best evidence rule.
7.
Movant and other officials of Makati City are
being tried and convicted before the bar of public opinion and
exposed to unwarranted public scorn and humiliation, with
PowerPoint Presentations being allowed to be made where
movant and members of the SangguniangPanlungsod of Makati
City were being branded as “ROBBERS”.
8.
The Office of the Ombudsman has already
acquired primary jurisdiction over the plunder complaint filed
by Atty. Renato Bondal in connection with the Makati City Hall
Building II, which is the same subject matter and in fact the
basis of Senate Resolution No. 826. Clearly, the Office of the
Ombudsman is the proper forum to determine criminal liability,
if any, on the part of movant where the proper rules of
procedure are adopted and movant’s rights are respected, e.g.,
the right to confront his accuser and to strike out inadmissible
evidence.
9.
Members of the Sub-Committee have clearly made
up their minds on the purported overpricing of Makati City Hall
Building II such that when movant, members of the
Commission on Audit Technical Unit, engineers and other
witnesses weregiving testimony that belie the claim of
overpricing, they were called liars and against whom the full
force of the law would be applied (“bubuhusan”). If the
Honorable Committee has already decided that the Makati City
Hall Building II is overpriced, to the extent that upon motion of
Sen. Trillanes, the Honorable Committee has directed the
Department of Public Works and Highways to blacklist
Hilmarc’s Construction Company and the COA to withhold
payments to the latter, then there is no longer any need to
continue with the hearings, much more to the command our
client to appear on a matter that has already been prejudged.
With all respect, based on the forgoing indubitable facts, the
ineluctable conclusion is that the on-going hearings of the Sub-Committee
relative to Senate Resolution No. 826 are not in aid of legislation and that
JURISDICTIONAL CHALLENGE/Page 06.
the investigation is in fact violative of the rights of the persons appearing
therein and/or affected thereby.
PRAYER
PREMISES CONSIDERED, it is respectfully moved and prayed of
this Honorable Committee on Accountability of Public Officers and
Investigations (Blue Ribbon), based on this jurisdictional challenge, that –
1. this jurisdictional challenge be GRANTED;
2. the Subpoena Ad Testificandumissued against movant be
QUASHED or RECALLED;
3. further proceedings by the Sub-Committee be TERMINATED;
Makati City for Pasay City, 25 September 2014.
JEJOMAR ERWIN S. BINAY, JR.
Mayor, Makati City
Assisted by:
Atty. CLARO F. CERTEZA
Counsel for Movant
Makati City
Atty. J.V. BAUTISTA
Co-Counsel for Movant
Cabanatuan City
Atty. RICO QUICHO
Co-Counsel for Movant