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Vice President Jejomar Binay’s Aguinaldo

Vice President Binay speaks to members of the pressoney received from benefactors during Christmas in the Philippines is called “aguinaldo”, a term and practice imported from Mexico during the Spanish colonial period where it now refers to the annual Christmas bonus given to employees.  In the Philippines, it is now generally used to describe monetary gifts given by all benefactors, including godparents and employers.

Like all other "presidentiables", Vice President Jojo Binay is also expecting aguinaldos from his wealthy financial supporters, taipan and non-taipan alike. But down the road, he is counting on another kind of "aguinaldo", this one from no less than the Philippine Supreme Court. It is a special gift that will allow him to realize his ambition to be the next president of the republic.

Binay has at least a 4 year head start on all his presidential rivals as he has been campaigning relentlessly for the presidency since his election as vice-president in May of 2010, making a mockery of the Comelec's ban on premature electioneering. In the past 4 ½ years, Binay has built a formidable campaign infrastructure from Batanes to Jolo, forging alliances with governors, mayors and barrio captains all over the country. He has almost certainly amassed a campaign war chest that may exceed that of all his opponents combined.

But yet, for all his political calculations, Binay is not the "shoo-in" candidate he thought he would be with just a year and a half to go before the May 2016 presidential elections.

CORRUPTION ALLEGATIONS

Binay has seen his popularity rating plummet in the last few months after corruption allegations were raised against him in televised Senate hearings investigating the overpricing of the New Makati City Parking Building (P2.33 billion pesos) and the Makati Science High School Building (P1.33 billion pesos) during his term as mayor of Makati. He is also under investigation for his alleged ownership of a 350-hectare "high-end hacienda" in Rosario, Batangas that has its own world-class Maze patterned after the Kew Garden in London, complete with an air-conditioned piggery, an orchid garden and a cock farm.

The Ombudsman is reportedly investigating these charges as well as Binay’s foreign bank accounts that were not declared in his Statements of Assets and Liabilities (SALN). His former Vice Mayor, Ernesto Mercado, in sworn testimony before the Senate Blue Ribbon subcommittee, produced records of 7 foreign accounts in Hong Kong banks, 3 of which were under the “care of” Eduviges Baloloy, Binay’s long-time aide. Deposits in these 3 accounts reached a total of US$ 71,481.95 (1996) and HK$957,912.93 (1996 and 1998).

The Ombudsman will likely seek the assistance of the Anti-Money Laundering Council (AMLC) to scrutinize Baloloy’s bank records and ferret out any transfers of funds to Binay. This tracing of funds was successfully employed in the impeachment of former chief justice Renato Corona where the Ombudsman and the AMLC tracked Corona’s multiple bank accounts and numerous transactions involving amounts of P500,000 and above.

JUSTICE TAKES FOREVER

Binay has denied all the charges and has threatened to sue anyone making false claims against him. He has also asserted that, as vice-president, he can only be removed by impeachment, a long process that he knows is unlikely to be completed by the time of the May 2016 presidential elections. Even criminal charges that may be filed against him by the Department of Justice or plunder charges by the Ombudsman will take years to resolve. 

When Binay’s wife, Dr. Elenita Binay, was mayor of Makati in 2001 (when her husband was termed out of office), criminal charges were filed against her in connection with the irregular procurement of hospital beds worth P36.43 million for the Ospital ng Makati. It has taken more than 13 years for her case to be set for trial last November 30 but even that arraignment was postponed again after Dr. Binay’s lawyers filed yet another motion to further delay the proceedings.

If or when criminal and/or plunder charges are filed against Vice President Binay, the cases will inevitably end up in the Philippine Supreme Court where Binay, a skilled and experienced lawyer, will count on the Court to dismiss all the charges against him based its on its previous decision involving Col. Rodolfo Aguinaldo.

Binay, an armed forces reservist, dressed in combat fatiguesCol. Aguinaldo was one of the worst violators of human rights during the Marcos dictatorship. In a news article that appeared on March 5, 1990,  the Los Angeles Times reported that “Aguinaldo gained notoriety as a national police intelligence commander for deposed President Ferdinand E. Marcos. Amnesty International and other human rights groups repeatedly cited the thin, baby-faced officer for torturing, maiming and murdering his foes and raping their wives and daughters.” LINK

After the fall of Marcos, Aguinaldo joined the Reform the Armed Forces Movement (RAM) renegade forces of Senator Juan Ponce Enrile and Col. Gringo Honasan and attempted to topple the government of President Cory Aquino in December of 1989.

AGUINALDO'S RENEGADE TROOPS

Prior to his involvement in the failed coup, Aguinaldo ran for governor of Cagayan province in January of 1988. In a New York Times article about his candidacy that was published just before the elections (“Renegade Officer Seeks Philippine Governorship” January 18, 1988), Aguinaldo described to the New York Times reporter what he would do to anyone who tries to disarm his 1,400 renegade troops:

''They just start trying to disarm my men and I hit their houses and I wipe them out. At a given signal, we chop off the heads of anybody who is foolish. We will send them straight to hell, from the grandfather to the grandson.'' LINK

Needless to say, no one dared to disarm Aguinaldo’s men and he was easily elected to a four-year term as governor.

Because of his active involvement in the December 1989 coup attempt, Cory Aquino’s Secretary of Local Government Luis Santos issued an administrative order removing Aguinaldo from his post as Cagayan governor (“for announcing on radio at the start of the Dec. 1-9 military mutiny that he was sending 5,000 troops, plus tanks and artillery, to Manila to support the rebels”).

Aguinaldo appealed the Santos order and, while the appeal was pending in court, ran for reelection in May of 1992 and easily won again. He then filed a motion to dismiss the administrative charges against him on the basis of his reelection.

On August 21, 1992 (the 9th anniversary of Ninoy Aquino's assassination), the Philippine Supreme Court decided en banc in favor of Aguinaldo dismissing the charges against him. Writing for a unanimous court, Associate Justice Rodolfo Nocon invoked the dicta of the Supreme Court case of Lizares v. Hechanova:

“The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When a people have elected a man to office, it must be assumed that they did this with the knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the Court, by reason of such fault or misconduct, to practically overrule the will of the people.” LINK

"Clearly then," Associate Justice Nocon wrote, "the rule is that a public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor."

BINAY'S “ADMINISTRATIVE MISCONDUCT"

...and over 2000 years later people are still choosing the thievesMost of the charges against Binay involve "administrative misconduct" during his term as Makati mayor where he allegedly awarded lucrative contracts to cronies who rewarded him with substantial kickbacks. His election as president in 2016 will act as a "condonation" by the voters of this "previous misconduct" immunizing him from being removed from office. 

So even if Binay is charged with plunder, he will still run for president while his case is proceeding through the notoriously long Philippine judicial process. After he is elected president, Binay's lawyers will file a motion to dismiss all the charges against him on the basis of the Aguinaldo decision.

The Aguinaldo precedent is an egregious decision that encourages people charged with criminal offenses to run for office to absolve themselves of any criminal charges under the doctrine of condonation. It perpetuates and embeds into law the Philippine culture of impunity. Published 12/25/2014

(Send comments to Rodel50@gmail.com or mail them to the Law Offices of Rodel Rodis at 2429 Ocean Avenue, San Francisco, CA 94127 or call 415.334.7800).


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