DISMISSED Makati Mayor Jejomar Erwin Binay Jr. can still seek reelection despite an order from the Office of the Ombudsman perpetually disqualifying him from holding public office, law experts said Sunday.
Former Commission on Elections chairman Sixto Brillantes, former University of the East law dean Amado Valdez, former University of the Philippines law dean Pacifico Agabin and veteran election lawyer Romulo Macalintal agreed that Ombudsman Conchita Carpio-Morales’ decision, though immediately executory, is still not final and can still be subject to judicial review before it can be carried out.
Brillantes said Binay can still file a motion for reconsideration with the Ombudsman, and if that is denied, bring the case to the Court of Appeals, and ultimately to the Supreme Court.
“If he files COC [certificate of candidacy] this week, the Comelec will accept that. They cannot reject that,” Brillantes said.
Candidates seeking election next year can file their certificates of candidacy from Oct. 12 to 16.
“If the CA sustain the dismissal, he can still elevate the case to the Supreme Court,” the former Comelec chairman said.
Besides, Brillantes said, the dismissal cannot be enforced yet because Binay is still serving a six-month suspension over a separate case involving alleged irregularities in the construction of the Makati City Science High School.
The preventive suspension was issued last July and would end in January next year. Currently serving as acting Makati mayor is Binay’s vice mayor Romulo Peña.
“The dismissal order cannot actually be implemented because there’s no one to dismiss since Junjun remains suspended up to now. Once the suspension is served, that’s the only time you can dismiss,” he said.
Brillantes said another option that Binay has is to apply for a substitute who will run as Makati mayor next year. His sister, Makati Rep. Abigail Binay, has already said she would take the place of his brother if he finally gets perpetually disqualified from public office.
Valdez, who is also president of the Philippine Association of Law Schools, agreed that the Ombudsman’s order does not prevent Binay from joining the 2016 mayoral race.
“[Junjun Binay] can file his COC and argue that the decision is not yet final,” Valdez added.
Valdez also questioned the Ombudsman’s authority to impose the penalty of perpetual disqualification.
“The penalty of perpetual disqualification is penal in nature, which only the court of Sandiganbayan can impose,” he said.
Valdez urged Binay to question the Ombudsman’s authority before the Supreme Court and seek an injunction so he can reassume his post once his six-month preventive suspension gets served.
“Definitely, the Ombudsman order created legal obstacles that have to be resolved,” Valdez said.
The former law dean said in case Binay ends up winning in the May 2016 elections, he can once again invoke the “Aquinaldo doctrine” or the condonation doctrine, which states that an elected official can be cleared from past administrative liability so long as he gets reelected.
Agabin agreed that Binay cannot be prevented from running in 2016 unless a court stops him from it.
“Yes he can file COC if he appeals the Ombudsman order,” he said in a text message.
The Ombudsman had tried to suspend Binay in March, but the mayor succeeded in convincing the Court of Appeals to issue a restraining order, and later an injunction, to stop the suspension.
This prompted the Ombudsman to bring the matter to the Supreme Court, contesting the Court of Appeals’ authority to restrain preventive suspensions by the Ombudsman. The case remains pending.
Without waiting for the Court’s decision, Morales announced Binay’s dismissal and perpetual disqualification from holding public office on Friday.
She said there was strong evidence presented during the administrative adjudication of the complaint that proved Binay was guilty of grave misconduct and serious dishonesty over the alleged overpriced construction of the P2.28-billion structure, also referred as the Makati parking building.
She said Binay failed to ensure that the contracts the city government was entering into were fair, reasonable and advantageous to the government.
Senator Nancy Binay, the mayor’s brother, on Sunday said the ruling Liberal Party was behind his dismissal.
In an interview over radio dwIZ, Binay said the timing of the Ombudsman’s decision was very suspicious as it came a few days before the start of the filing of certificates of candidacy for those running in next year’s elections.
“The Liberal Party has to resort to disqualification so that their pet [candidate] will win in 2016. I want to highlight that his political rival in Makati is an LP [member]. So one plus one equals two—the only way to win is if they remove the name of my brother from the ballot,” the senator said.
She said this was also the reason the current administration pressured former Ombudsman Merceditas Gutierrez to resign, so they could control her successor.
Despite the Ombudsman’s ruling, she said her brother will file his COC after their father, Vice President Jejomar Binay and his running mate do so on Monday.
The senator also blasted Morales, saying she could not nullify the will of the people. With Macon Ramos-Araneta