Still apropos of the Binay banners and banters, the Inquirer headline today “Binay to Cooperate with De Lima probe” would have been more accurate if it had been tail-ended with “if” because, as the accompanying story shows, when he was “asked by reporters yesterday if he would face the DOJ investigation, Binay said: `Yes. But this depends on what kind of investigation (the DOJ will do)’, (but) He did not say, however, what kind of investigation he wanted from the DOJ." In other words, if he decides to attend.
Earlier, in reaction to the admonition of Senator Santiago that he should appear at the Senate probe on alleged irregularities at the Makati local government in order to clear his name, Binay was quoted to the effect that he, just like Santiago, is also a lawyer (meaning, that his opinion is as good as hers) and that he should not face the Senate because it had already pre-judged him.
Earlier, in reaction to the admonition of Senator Santiago that he should appear at the Senate probe on alleged irregularities at the Makati local government in order to clear his name, Binay was quoted to the effect that he, just like Santiago, is also a lawyer (meaning, that his opinion is as good as hers) and that he should not face the Senate because it had already pre-judged him.
Still apropos of the Binay banners and banters, the Inquirer headline today “Binay to Cooperate with De Lima probe” would have been more accurate if it had been tail-ended with “if” because, as the accompanying story shows, when he was “asked by reporters yesterday if he would face the DOJ investigation, Binay said: `Yes. But this depends on what kind of investigation (the DOJ will do)’, (but) He did not say, however, what kind of investigation he wanted from the DOJ." In other words, if he decides to attend.
Earlier, in reaction to the admonition of Senator Santiago that he should appear at the Senate probe on alleged irregularities at the Makati local government in order to clear his name, Binay was quoted to the effect that he, just like Santiago, is also a lawyer (meaning, that his opinion is as good as hers) and that he should not face the Senate because it had already pre-judged him.
A judgment or a decision is made in adversarial processes involving conflicting claims affecting a person’s life or liberty (criminal cases) or property (civil or administrative cases). An NBI or senate investigation does not result in any judgment or decision in favor of one or against another. Rather, these are preliminary fact-finding processes the results of which are merely basically recommendatory: on the part of the NBI, to determine whether or not a case should be filed with the prosecutor’s office or the courts; on the part of the Senate, to ascertain what laws should be passed, reviewed or amended. In both, a person does not lose his constitutional rights. So, why would a person refuse to appear in such fact finding investigations? The only reason should be that he does not want the real facts to be known.
Idol Jarius Bondoc, while a most objective observer, in his Philippines Star column today entitled “This accuser is employing militaristic tactic on Binay," may have fallen for the fallacy that the Senate is an adjudicatory body when he writes, B on B, that Binay may snub the senate hearing since three senators have already been “pronouncing him guilty solely on say-so and not documents, then challenging him to prove innocence," while “normally the burden in place on the accuser to prove guilt, not on the accused to prove otherwise."
The Senate investigation should be placed in its proper perspective. It was conducted to probe the alleged overprice of the Makati City Hall parking building and not to specifically probe the Binays. Obviously, the inquiry is in aid of legislation: to ascertain how, despite the seemingly rigid rules on government contracts and procurements, such a reportedly anomalous overprice still took place so that the proper remedial legislations could be passed. Also, such a probe may be necessary to further define the powers and functions of the local governments and the local executives. The involvement of Mercado and the Binays are merely incidental, but unavoidable: Mercado because he claims to have knowledge of the irregularities, Binay because he happened to be the Mayor of Makati, hence, presumed to have knowledge, if not acquiesced, to the irregularities. Had things ran as the parties involved originally planned, it could have been Mercado who was the Mayor at the time of the construction of the building, hence, he would then be the one considered as the “accused” and not the ”accuser."
But then there is no accuser and accused in the senate investigation. Persons appearing thereat are mere resource persons whom the senate hoped would provide facts or data in aid of its investigation.
As things stand, the only data thus far presented before the Senate were mostly those given by Mercado and other witnesses. In the course thereof, the names of the Binays and others inevitably cropped up. For how could an investigation on the construction of the building be made without including those who approved it in the first place? The basic questions in any investigation start with what, when, where, who and why. Leaving out any of these would not result in an impartial probe. While the Binays were initially represented by Mayor Junjun Binay, he later also refused to appear thereby, apparently refusing to shed further light on the investigation on certain matters which needed further clarifications on the part of the Senate.
With the mention of the Binays, it was therefore, rightful, fitting and proper, that they should be invited to shed further light on the issues raised. Otherwise, it might be said later on that any recommendation which the Senate may make was arrived at without the Binays given the opportunity to air their side.
The building probe morphed into the hacienda hunt. Resistance to the latter is that it is no longer covered by the investigation on the building. But it is as it should be. Under the constitution, while every bill passed by Congress shall embrace only one subject which shall be expressed in the title thereof, no such limitation is imposed on investigations in aid of legislation.
But the inquiries on both the world-class parking and the air-conditioned piggery would still serve the need for remedial legislation insofar as it would provide legislators data on how to pass laws affecting property ownership and anti-graft and corrupt practices act.
The Constitution bans land ownership by foreigners. To circumvent this, foreigners use dummies, including marrying Filipinos just for the convenience and legality of acquiring and owning real properties. To conceal ill-gotten wealth, pubic officials cause the registration of properties they acquire while holding public office in the names of dummies. Such issues have been brought to the fore in the senate investigation. Ranged against the testimonies of Mercado and so many others that certain properties or businesses were actually owned by the Binays, the latter deny since all documents are not in their names. Idol Bondoc thus prefers documentary over testimonial evidence, which is again a fallacy because under the law on evidence, one type of evidence is not pre-eminent over the other.
One may be the registered or apparent owner but he may not be the actual owner. Even the Civil Code recognizes this with the various provisions on property, succession, trust and agency. A TCT may still be in the name of a person who has already died. A person in possession of a cell phone is presumed to be the owner by the mere act of possession, but it may be shown to have been stolen. A car purchaser may cause its registration in the name of another for the purpose of a taxi franchise. A foreigner may request a local resident to open a bank account in the latter’s name to avoid payment of additional charges on foreign deposits and withdrawals. In all of these instances, courts may go beyond mere documentation even as certain anti dummy laws provide for conclusive presumptions on what the registered documents provide.
Testimonial and other documentary evidence may show facts and circumstances which would belie registration of ownership by others, such as actual use, relationship (which is decried as guilt by association), the circumstances surrounding the acquisition by the registered owner, the similar acts done, and such other circumstances which would indicate actual ownership unless otherwise explained or rebutted.
Mercado and others have testified or stated that the Binays are the owners. It therefore, behooved upon the latter, for which Santiago gave counsel, to appear before the senate and explain their side. Otherwise, with the evidence on the balance - the documents vs. the testimonies of witnesses - the senate would be free to choose which of these to accept as the truth. With the testimonies of the Binays, the evidentiary equilibrium may just be tilted in their favor.
Earlier, in reaction to the admonition of Senator Santiago that he should appear at the Senate probe on alleged irregularities at the Makati local government in order to clear his name, Binay was quoted to the effect that he, just like Santiago, is also a lawyer (meaning, that his opinion is as good as hers) and that he should not face the Senate because it had already pre-judged him.
A judgment or a decision is made in adversarial processes involving conflicting claims affecting a person’s life or liberty (criminal cases) or property (civil or administrative cases). An NBI or senate investigation does not result in any judgment or decision in favor of one or against another. Rather, these are preliminary fact-finding processes the results of which are merely basically recommendatory: on the part of the NBI, to determine whether or not a case should be filed with the prosecutor’s office or the courts; on the part of the Senate, to ascertain what laws should be passed, reviewed or amended. In both, a person does not lose his constitutional rights. So, why would a person refuse to appear in such fact finding investigations? The only reason should be that he does not want the real facts to be known.
Idol Jarius Bondoc, while a most objective observer, in his Philippines Star column today entitled “This accuser is employing militaristic tactic on Binay," may have fallen for the fallacy that the Senate is an adjudicatory body when he writes, B on B, that Binay may snub the senate hearing since three senators have already been “pronouncing him guilty solely on say-so and not documents, then challenging him to prove innocence," while “normally the burden in place on the accuser to prove guilt, not on the accused to prove otherwise."
The Senate investigation should be placed in its proper perspective. It was conducted to probe the alleged overprice of the Makati City Hall parking building and not to specifically probe the Binays. Obviously, the inquiry is in aid of legislation: to ascertain how, despite the seemingly rigid rules on government contracts and procurements, such a reportedly anomalous overprice still took place so that the proper remedial legislations could be passed. Also, such a probe may be necessary to further define the powers and functions of the local governments and the local executives. The involvement of Mercado and the Binays are merely incidental, but unavoidable: Mercado because he claims to have knowledge of the irregularities, Binay because he happened to be the Mayor of Makati, hence, presumed to have knowledge, if not acquiesced, to the irregularities. Had things ran as the parties involved originally planned, it could have been Mercado who was the Mayor at the time of the construction of the building, hence, he would then be the one considered as the “accused” and not the ”accuser."
But then there is no accuser and accused in the senate investigation. Persons appearing thereat are mere resource persons whom the senate hoped would provide facts or data in aid of its investigation.
As things stand, the only data thus far presented before the Senate were mostly those given by Mercado and other witnesses. In the course thereof, the names of the Binays and others inevitably cropped up. For how could an investigation on the construction of the building be made without including those who approved it in the first place? The basic questions in any investigation start with what, when, where, who and why. Leaving out any of these would not result in an impartial probe. While the Binays were initially represented by Mayor Junjun Binay, he later also refused to appear thereby, apparently refusing to shed further light on the investigation on certain matters which needed further clarifications on the part of the Senate.
With the mention of the Binays, it was therefore, rightful, fitting and proper, that they should be invited to shed further light on the issues raised. Otherwise, it might be said later on that any recommendation which the Senate may make was arrived at without the Binays given the opportunity to air their side.
The building probe morphed into the hacienda hunt. Resistance to the latter is that it is no longer covered by the investigation on the building. But it is as it should be. Under the constitution, while every bill passed by Congress shall embrace only one subject which shall be expressed in the title thereof, no such limitation is imposed on investigations in aid of legislation.
But the inquiries on both the world-class parking and the air-conditioned piggery would still serve the need for remedial legislation insofar as it would provide legislators data on how to pass laws affecting property ownership and anti-graft and corrupt practices act.
The Constitution bans land ownership by foreigners. To circumvent this, foreigners use dummies, including marrying Filipinos just for the convenience and legality of acquiring and owning real properties. To conceal ill-gotten wealth, pubic officials cause the registration of properties they acquire while holding public office in the names of dummies. Such issues have been brought to the fore in the senate investigation. Ranged against the testimonies of Mercado and so many others that certain properties or businesses were actually owned by the Binays, the latter deny since all documents are not in their names. Idol Bondoc thus prefers documentary over testimonial evidence, which is again a fallacy because under the law on evidence, one type of evidence is not pre-eminent over the other.
One may be the registered or apparent owner but he may not be the actual owner. Even the Civil Code recognizes this with the various provisions on property, succession, trust and agency. A TCT may still be in the name of a person who has already died. A person in possession of a cell phone is presumed to be the owner by the mere act of possession, but it may be shown to have been stolen. A car purchaser may cause its registration in the name of another for the purpose of a taxi franchise. A foreigner may request a local resident to open a bank account in the latter’s name to avoid payment of additional charges on foreign deposits and withdrawals. In all of these instances, courts may go beyond mere documentation even as certain anti dummy laws provide for conclusive presumptions on what the registered documents provide.
Testimonial and other documentary evidence may show facts and circumstances which would belie registration of ownership by others, such as actual use, relationship (which is decried as guilt by association), the circumstances surrounding the acquisition by the registered owner, the similar acts done, and such other circumstances which would indicate actual ownership unless otherwise explained or rebutted.
Mercado and others have testified or stated that the Binays are the owners. It therefore, behooved upon the latter, for which Santiago gave counsel, to appear before the senate and explain their side. Otherwise, with the evidence on the balance - the documents vs. the testimonies of witnesses - the senate would be free to choose which of these to accept as the truth. With the testimonies of the Binays, the evidentiary equilibrium may just be tilted in their favor.