Elenita Binay urges court to bar ex-ally from testifying for prosecution

MANILA, Philippines — Elenita Binay, wife of former Vice President Jejomar Binay, has asked the Sandiganbayan to reconsider its ruling allowing former Makati Councilor Ernesto Aspillaga to testify on her graft case in connection with an alleged anomalous purchase in 1999 during her term as Makati mayor.

 

In her 18-page motion for reconsideration filed before the anti-graft court's Fifth Division, Binay, through her lawyers, said the court erred in its August 3, 2017 ruling granting the prosecution's appeal to discharge Aspillaga as co-accused in the case in order to present him as state witness.

 

The August 3 resolution reverses the Fifth Division's December 9, 2016 ruling which turned down the prosecution's bid to utilize Aspillaga as state witness.

 

Binay said the Fifth Division should not have acted at all on the prosecution's motion for reconsideration (MR) filed on December 27, 2016 as it was “technically defective”.

 

Binay said the division should have instead granted her motion to expunge the prosecution's MR from the court's records as it was “nothing but a mere scrap of paper unworthy of the Honorable Court's consideration”.

Binay maintained that the prosecution's MR was belatedly heard in violation of the ten-day rule under the Rules of Court.

 

Binay pointed out that under the Section 5 Rule 15 of the Rules of Court, a motion must be heard within ten days from the day of the filing. Binay said the prosecution, in its motion, requested for a hearing on January 10, 2017, or four days beyond the ten-day rule.

 

In reversing its earlier decision, the court said preventing Aspillaga to testify on the case due to mere technicality “would lamentably be seen as suppressing a vital and material piece of evidence that may have a niche in the prosecution of the case”.

 

Binay, Aspilla and six other respondents are facing a graft case before the Fifth Division in connection with the alleged anomalous purchase of office partitions and furniture worth P72.06 million in 1999 during Binay's term as Makati mayor.

 

The Office of the Ombudsman said the bidding for the purchased items was rigged in favor of Office Gallery International.

 

The prosecution team had earlier said that Aspillaga's testimony would be vital in the case considering his first-hand knowledge of the supposed bid rigging given his positions as the former head of the Makati government’s General Services Department and as former member of the city government's bids and awards committee.

 

In his testimony before the Senate blue ribbon subcommittee in 2014, Aspillaga revealed that almost all the public biddings in Makati City during the reign of the Binays since 1986 were just a “moro-moro” or for a show.

 

The prosecution pointed out that since Aspillaga has already been admitted to the Department of Justice's Witness Protection Program, the prosecution now has the prerogative to utilize him as witness to bolster the case against Binay in accordance with Section 17 of Rule 119 of Revised Rules of Criminal Procedure.

In her appeal, however, Binay maintained that even setting aside the supposed technical defect of the prosecution's motion for reconsideration, there is still “no absolute necessity” for Aspillaga's presentation as state witness.

 

Binay pointed out that while Aspillaga, in his sworn affidavit, stated that the bidding for the purchase of the the office partitions and supplies was simulated by the respondents upon her orders, such allegation was not contained in the charge sheet despite the prosecution's amendments of the case information twice.

 

“As such, evidence pertaining on this belated theory of conspiracy among the accused – the supposed orders given by Accused Binay to her co-accused and their individual actions in response thereto, are irrelevant and immaterial to the allegations in the amended [case] information,” Binay's motion read.

 

Binay further said that none of the other evidence and witnesses presented by the prosecution could corroborate Aspillaga's affidavit, thus there is a “patent failure” to satisfy the requirement under Section 117 of Rule 119 of the of Revised Rules of Criminal Procedure (RRCP).

 

Under Section 17 Rule 119 of RRCP, an accused in a criminal case can be discharged to be a state witness when there is absolute necessity for his or her testimony or when there is no other evidence available for proper prosecution of the offense committed; when his or her testimony can be substantially corroborated; and when the accused does not appear to be the most guilty and has not been convicted of any crime involving moral turpitude.

 

Binay said that if one is to believe the content of Aspillaga's affidavit, it appears that he is “the most guilt among all the accused” because as then head of the General Services Department, he admitted that he supervised the preparation of the procurement and bidding requirements as well as the actual conduct of the supposed rigged bidding.

 

“Thus, before she affixed her signature of approval on Purchase Order No. 9989, she has all the reasons to rely to a reasonable extent on the good faith and recommending approval of Accused Aspillaga, who, as General Services Officer, was the one in charge of the bidding process,” Binay said.