Sandiganbayan allows Ernesto Mercado to testify vs. Elenita Binay
Members of the Senate Blue Ribbon Sub-Committee investigating the alleged overpricing of a 12-story building for the University of Makati’s nursing school watch a presentation on Monday. The building’s construction cost of P1.140 billion is alleged to be overpriced to benefit then mayor Jejomar Binay back in 2007. (MNS Photo)
MANILA (Mabuhay) – The Sandiganbayan has allowed former Makati Vice Mayor Ernesto Mercado to testify against Elenita Binay, wife of Vice President Jejomar Binay, in connection with her pending graft case.
In a resolution dated January 22, the Sandiganbayan Fifth Division reversed its July 2015 ruling denying the prosecution’s motion to present Mercado as witness.
“A re-examination of the Motion stirs this Court to reconsider. It is axiomatic that the matter of presentation of witnesses by the prosecution is not for the accused, or except in limited sense, for the court to dictate. The prosecution has the discretion as to how to present its case and it has the right to choose whom it wishes to present as witnesses,” the 16-page ruling penned by Associate Justice Ma. Theresa Dolores Gomez-Estoesta read.
The resolution was concurred in by Fifth Division chairman Associate Justice Roland Jurado and acting member Associate Justice Samuel Martires.
In its new ruling, the court gave weight on the prosecution’s pronouncement in its motion for reconsideration filed in August last year, which said that Mercado can give a competent testimony on how an original copy of a Commission on Audit (COA) ended up in his possession.
The prosecution had earlier revealed that the original copy of a COA report, which Mercado possesses, would prove that state auditors found irregularities in the Makati City government’s purchase of the items being questioned in the case.
Mrs. Binay is charged with graft before the Fifth Division in connection with the alleged anomalous purchase of office partitions and furniture worth P72.06 million in 1999 during her incumbency as Makati mayor.
In its original ruling, the Fifth Division said Mercado is not in the position to verify the authenticity as well as the factual accuracy of the audit report as he was not a member of COA. The court also said the authenticity of the supposed COA report is also questionable.
“How he was able to obtain the original copy of the Audit Report itself, which the Commission on Audit oddly does not even have in its official custody, would only nag the persistent question that it could have come from a dubious source,” the Fifth Division said in its original ruling.
The division had earlier barred the prosecution’s other witness, former COA commissioner Heidi Mendoza, from testifying on the audit report after she admitted that it was just handed to her by Mercado.
In its motion for reconsideration, however, the prosecution said aside from recounting how the COA report ended in his possession, Mercado is also competent to testify on his role in the preparation of a “Management Comments” attached in the controversial audit report.
“There can be no question that the original copy of the Audit Report can only be identified and authenticated by a competent witness who was privy to its preparation,” the Fifth Division said in its new ruling.
“On the otherhand, if the purpose of calling Mr. Mercado to the witness stand is simply limited to the purported fact how the audit report ended up in his possession, the prosecution cannot certainly be barred from utilizing him as a witness to this case,” it added.
“The context of such intended testimony can, at best be taken as an independent relevant statement offered only as to the fact of its declaration and the substance of what had been relayed, but not as to the truth thereof,” it further added.
Meanwhile, the Fifth Division deferred from ruling on a separate motion of the prosecution to drop the case against Mrs. Binay’s co-accused, former Makati City councilor Ernesto Aspillaga, in order to utilize him as witness.
The court said it will defer from ruling on the motion until further hearing was conducted.
The Fifth Division said that while Aspillaga has already been admitted to the Department of Justice’s Witness Protection Program (WPP), the court would still have to determine the merits of his intended testimony for the case.
“Before Mr. Aspillaga can be discharged as a State Witness, however, hearing should be held for the purpose,” the court said. “Pending such hearing, the pending Motion of the prosecution to discharge Mr. Aspillaga as a State Witness cannot yet be resolved on its own merits.”
The court set the hearing on January 28 and directed the prosecution to submit to the court a copy of the sworn affidavit of Aspillaga.
In its motion, the prosecution said that Aspillaga’s testimony would be vital in the case considering his first-hand knowledge of the alleged anomalous transaction, given his position as the former head of the Makati government’s General Services Department (GSD), which was primarily involved in the purchase of the items subject to the alleged rigged bidding and was also a member of the city government’s bids and awards committee.
In his testimony before the Senate blue ribbon subcommittee on September 25, 2014 concerning various allegations of corruption in the Makati City government, Aspillaga revealed that almost all the public biddings in Makati City during the reign of the Binays since 1986 were just “moro-moro” or for show.
Aside from her cases before the Fifth Division, Mrs. Binay is also facing one count of graft before the Fourth Division in connection with the alleged anomalous purchase of P13.25-million worth of panel partitions, accessories and assorted pieces of furniture for the Makati City Hall in 2000.
At the Third Division meanwhile, Mrs. Binay faces malversation and graft raps in relation to the alleged anomalous purchase of P45-million worth of hospital beds and medical supplies also during her incumbency as the mayor of Makati City in 2000 and 2001
Mrs. Binay had earlier posted bail for all the charges.(MNS)