CA junks Junjun Binay’s petition vs second suspension order

THE Court of Appeals (CA) junked on Friday dismissed Makati City Mayor Junjun Binay’s petition questioning the second preventive suspension order issued against him by the Office of the Ombudsman over an alleged overpriced Makati Science High School building.

The appellate court, in a three-page decision, said the petition has been rendered moot, when the Ombudsman earlier ordered his dismissal due to the alleged Makati City Hall Building 2 overpriced project.

“Ombudsman Carpio-Morales and her 103-page joint decision pertaining to six other similar complaints against petitioner (Junjun Binay) involving alleged anomalies in the construction of the Makati car park ordered petitioner’s dismissal as Makati Mayor with perpetual disqualification from holding public office.” The CA’s resolution stated.  “This court takes judicial notice of the foregoing issuance, which became the subject of extensive coverage in both print and broadcast media. In light of this supervening event, we opined that whatever relief we grant to petitioner in this case, whether we will restrain, enjoin or nullify his preventive suspension, the same will no longer serve any practical value.

The CA explained that although Binay’s second preventive suspension has not prescribed, it has been deemed “overtaken, if not superseded, by the order of dismissal by Ombudsman (Conchita) Carpio-Morales.”

“Petitioner, having been dismissed from his post as Makati Mayor, will not be able to take it back, regardless of how we resolve the validity of his preventive suspension in the present case,” the CA continued.  “Accordingly, the petition is dismissed on ground of mootness.”

The administrative case stemmed from the alleged overpricing of Makati Science High School building by about P282 million.

source:  Manila Times

785 bets face perpetual disqualification over SOCE

MANILA, Philippines - At least 785 candidates face perpetual disqualification from holding public office for failing to file their statements of contributions and expenditures (SOCEs) twice, the Commission on Elections (Comelec) said yesterday.

Based on a report of the Comelec’s Campaign Finance Office, these candidates ran for local posts in 2007, 2010 and 2013.

Comelec spokesman James Jimenez said the candidates would be subjected to a preliminary investigation and cases would be filed before the agency’s Office of the Secretary of the Commission if probable cause is found.

“These cases can still be appealed. Under the rules, if you fail to file your SOCE twice, you will be disqualified and based on our lists, all are local (candidates),” Comelec Chairman Andres Bautista said.

Records show that officials of the Autonomous Region in Muslim Mindanao had the most number of SOCE delinquents with 194. 

The other regions with the non-SOCE filers are Calabarzon (88), Cordillera Administrative Region (70), Northern Mindanao (67), Central Luzon (60), Soccsksargen (59) and National Capital Region (54).

Cagayan Valley had 30, Central Visayas (25), Ilocos region and Mimaropa (23), Eastern Visayas (21), Davao region (18), Zamboanga peninsula (16), Bicol region and Western Visayas (15 each) and Caraga (7).

Under Comelec Resolution 9991, these candidates also face fines ranging from P20,000 to P60,000, depending on the position they ran for.

source:  Philippine Star

Ex-Canadian citizen cannot run for mayor in Batanes province, SC says

THE SUPREME Court has dismissed a Batanes mayoral bet’s petition seeking to reinstate his 2013 candidacy, saying his renouncement of Canadian citizenship does not automatically enable him to meet the residency requirement.

In an emailed statement, SC Public Information Office Chief Theodore O. Te said the SC en banc voted 11-0 to junk the petition by Rogelio Caballero against the Commission on Elections’ (Comelec) findings of material misrepresentations in his certificate of candidacy.

Since Mr. Caballero renounced his foreign citizenship on Sept. 13, 2012, only six months prior to the election, he could not meet the one-year residency requirement.

This rejected his argument that Comelec should have allowed him to run because he did not lose his domicile of origin when he was naturalized, having been born in the town.

He said that despite becoming a Canadian citizen, he merely left Uyugan temporarily and regularly vacationed in his hometown.

But the high court said naturalization in a foreign country results in the abandonment of his original domicile. It noted that to acquire Canadian citizenship, one must hold a permanent resident status, effectively transferring his domicile to Canada.

As a result, Mr. Caballero had to reestablish his domicile in Uyugan, which he only did when it renounced his citizenship on Sept. 13, 2012.

However, this falls short of the one-year residency requirement; the elections were held on May 13, 2013.

Since Mr. Caballero stated in his CoC (Certificate of Candidacy) that he had been a resident of Uyugan for one year prior to the elections, the high court affirmed the Comelec’s ruling that he committed material misrepresentation in his CoC. -- Vince Alvic Alexis F. Nonato

source:  Businessworld

Only One COC Per Candidate: Comelec

AN INDIVIDUAL can file another certificate of candidacy (COC) for a different position within the five-day filing period but he would have to withdraw the first one, Commission on Elections (Comelec) spokesman James Jimenez said yesterday.

“Under the rules, kapag may nag-file ng more than one COC, they are deemed not filed,” said Jimenez.

“If you file multiple COCs, yes, you can withdraw it as long as it is within the filing period,” he added.

Questions over the possibility were raised after the COC of Davao City Mayor Rodrigo Duterte was filed by his chief-of-staff, Christopher Go, yesterday for reelection, to the dismay of his supporters who are pushing him to run for president.

Duterte’s move came as a surprise after rumors circulated that he is in Manila to file his COC for president at the Comelec main office in Manila.

Speculations were even fanned after throngs of Duterte supporters camped outside the Palacio del Gobernador, with some even shaving their heads to manifest their desire for him to run for president.

Friday is the last day for the filing of COCs for elective posts nationwide.

Based on the rules on substitution, election lawyer Romulo Macalintal said reelectionist Manila Mayor Joseph Estrada cannot substitute for Senator Grace Poe or Vice President Jejomar Binay if both are disqualified from running for president.

Macalintal said Poe cannot be substituted as because it is not allowed for an independent candidate.

He said Estrada cannot substitute for Binay because they are not party-mates.

Macalintal said even if Estrada can substitute for the two, he may also face legal problems since the Constitution provides that an elected president is not eligible for any election.

He said even if Estrada was allowed to run for president in 2010, the issue was not resolved by the Supreme Court because it became moot and academic when he lost to President Aquino. 

Estrada said he would only run for president in 2016 if Poe or Binay is disqualified. 

Jimenez also reminded those making fun of the “colorful” political aspirants that being declared a nuisance candidate is based on a person’s candidacy, not his personality.

“Ang tinutukoy na nuisance candidate is actually ‘yung candidate na makakagulo lamang or hindi makikitang maka-contribute significantly sa kabuuang proseso,” he said.

Under the Omnibus Election Code, an individual may be declared as a nuisance candidate “if it is shown that said certificate has been filed to put the election process in mockery or disrepute; or to cause confusion among the voters by the similarity of the names of the registered candidates; or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office.”

Among the more popular candidates who have filed their COCs this week are Daniel Magtira, who claims to be the “husband” of presidential sister Kris Aquino, and Romeo John Ygonia, also known as Archangel Lucifer.  

On December 10, the Comelec is set to come out with the final list of candidates for the 18,069 positions to be contested in the May polls after purging the list of those considered as nuisance candidates. – With Ashzel Hachero

source:  Malaya

Ombudsman orders dismissal of Junjun Binay

Ombudsman Conchita Carpio-Morales has ordered the dismissal of suspended Makati Mayor Jejomar Erwin "Junjun" Binay Jr over the alleged overpricing of the Makati City Hall Parking Building II.

In ordering Binay's dismissal from service and perpetual disqualification from public office on Friday, October 9, Morales said in a statement that the "strong evidence" presented during administrative adjudication "remained unrebutted."

She said that there were irregularities in the design and architecture in several phases of the said city infrastructure project worth P2.28 billion, undertaken from 2007 to 2013.

The Ombudsman's decision recommends that Binay, who is expected to file his certificate of candidacy for Makati mayor next week, be barred from holding public office.

The Ombudsman also ordered the dismissal of 19 other Makati officials:

• Marjorie de Veyra
• Pio Kenneth Dasal
• Lorenza Amores
• Virginia Hernandez
• Line dela Peña
• Mario Badillo
• Leonila Querijero
• Raydes Pestaño
• Nelia Barlis
• Cecilio Lim III
• Arnel Cadangan
• Emerito Magat
• Connie Consulta
• Ulysses Orienza
• Giovanni Condes
• Manolito Uyaco
• Gerardo San Gabriel
• Eleno Mendoza Jr
• Rodel Nayve

Morales said that while Binay may file an appeal, the decision is "immediately executory."

Binay is also currently serving a 6-month preventive suspension order from the Ombudsman for the alleged overpricing of the Makati Science High School building.

'Binay intentionally closed his eyes to irregularities'

In a 103-page joint decision on 6 docketed complaints, the Ombudsman said that "flagrant anomalies" were found to have been committed by Binay and the other city officials in the design and construction of the Makati city hall parking building II's 6 phases. (WATCH: Red flags in 'overpriced' Makati infra projects)

It said that the services of Mana Architecture and Interior Design Company (MANA) were engaged without the benefit of public bidding in phase 1.

"The documents established badges of fraud committed by Binay, Jr. et.al. in manipulating the procurement to ensure the award of the contract to MANA; processing and approving a series of four (4) payments totaling to P11.97 million despite the incomplete submission of deliverables such as design plans, working drawings, and technical specifications," it said.

The Ombudsman said procurement violations were committed and there were no invitations to bid, contrary to Republic Act No 9184, or the Government Procurement Reform Act.

"A certified true copy of the publication obtained from the National Library showed that no advertisement for the invitations to bid was made as attested to by the publisher," it said.

The Ombudsman said there was "undue haste" in awarding the contract – the Makati Bids and Awards Committee (BAC) supposedly took just 11 days to complete the procurement process for the big infrastructure project.

It cited the Commission on Audit Fraud Audit Office’s Initial Evaluation Report which said that “the negotiated procurement adopted by the BAC was improper.”

The construction projects were ultimately awarded to Hilmarc’s Construction Corporation despite the lack of the required publication of the invitations to bid. It was also the lone bidder in 4 out of the 6 phases.

Moreover, the Ombudsman said that the construction project began "even in the absence of approved design standards, contract plans, agency cost estimates, detailed engineering and programs of work."

The joint decision also explained that there was supposed collusion among city officials and Hilmarc’s to manipulate the outcome of the 5 “public biddings” to ensure that Hilmarc’s would be the winning bidder.

Morales said Binay had the obligation to ensure that the contracts he was entering into were "fair, reasonable and advantageous to the government." Documents indicate that Binay approved the BAC resolutions, notices of awards, contracts and payments.

"By so acting, Binay intentionally closed his eyes to the irregularities by failing to observe utmost diligence," the Ombudsman added.

'Dismissal by press release, suspicious timing'

The Binay camp slammed the Ombudsman's decision as "dismissal by press release."

"Bistado na ang Ombudsman. Minadali nito ang order dahil sa Lunes ay magsisimula na ang filing ng CoCs (certificates of candidacy) para sa 2016 election. Ni wala pang kopya ng order na natanggap si Mayor. Dismissal by press release ang ginawa ng Ombudsman," vice presidential spokesperson Joey Salgado said in a statement.

(The Ombudsman has been exposed. It rushed this order because the filing of CoCs for the 2016 elections starts on Monday. The mayor has not even received a copy of the order. What the Ombudsman did was a dismissal by press release.)

Salgado said that Binay will face the legal challenge and will elevate it to court "to stop the administration's abuses and underhanded moves" against him.

In an interview on ANC, Binay's lawyer, Claro Certeza, also questioned what he called the "suspicious" timing of the Ombudsman's decision, as it comes just days from the start of the filing of COCs.

"We have to look at the bigger picture here. Look at the timing when the resolution is issued. It's about the time when parties are supposed to be filing their COC, then they issue such a resolution," Certeza said.

"You will agree with me that something like this will negatively impact both the Vice President and Mayor Junjun insofar as their aspirations to be elected are concerned," he added.

Vice President Jejomar Binay, who is also hounded by corruption allegations when he was Makati mayor, is seeking the presidency.

Certeza said that they were surprised by the Ombudsman's resolution. "We have already presented all evidences that we have to the Ombudsman, that's why we are surprised about this finding that they made."

The next step, he said, is to get a copy of the resolution, and once he has studied it, he will file an appeal with the Court of Appeals. The lawyer said, however, that "the problem here is that this decision is immediately executory."

"So I guess this is really their strategy, to see to it that at least with respect to the certification of candidacy, Mayor Binay will be really hard-pressed for time to seek any legal relief. The timing is very suspicious," he said.

Malacañang said in a statement that it respects the decision of the Office of the Ombudsman, "being an independent office from the Executive," and expects all other parties to do the same.

"In undertaking its constitutionally-mandated role, it is incumbent on all parties to abide by the decision and to avail of the legal remedies provided under law," said Deputy Presidential Spokesperson Abigail Valte. – Rappler.com

Q and A on Grace Poe’s natural-born citizenship By: Artemio V. Panganiban

My two columns opining that Sen. Grace Poe possesses natural-born citizenship that could be affirmed by a DNA (deoxyribonucleic acid) test were written three months ago on June 14 and 21. Yet, to this day, I still get a lot of questions. For easy comprehension, I will simplify the questions and my answers.

Question 1: Why is natural-born citizenship important? Answer: Because only natural-born citizens are qualified to be president, vice president, senator, congressman or Supreme Court justice.

Consequently, if a final decision decrees that Senator Poe is NOT a natural-born citizen, she would be removed from her office as senator, barred from running for the presidency and, if elected, prohibited from serving her mandate.

Question 2: What tribunals are authorized to pass judgment on her citizenship? Answer: The Senate Electoral Tribunal has jurisdiction over cases questioning her qualifications as a senator. Also, the Commission on Elections is authorized to hear and decide petitions challenging her qualifications for the presidency but only after she has filed her certificate of candidacy for the post. The decisions of these tribunals may be elevated to the Supreme Court later.

Question 3: Which Constitution governs her citizenship? Answer: The 1935 Constitution because this was our basic law in 1968 when she was born. Under this Constitution, “The following are citizens of the Philippines: (1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution. (2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands. (3) Those whose fathers are citizens of the Philippines. (4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority elect Philippine citizenship. (5) Those who are naturalized in accordance with law.”

In addition, the 1935 Constitution (as well as the current one) states that the “Philippines… adopts the generally accepted principles of international law as part of the law of the Nation.” Thus, by this “doctrine of incorporation,” customary international laws are given the same force and effect as statutes passed by Congress.

Question 4. What are the international laws that govern the citizenship of foundlings?

Answer: Mainly, (a) the 1930 Hague Convention on the Conflict of Nationality Laws, (b) the 1948 Universal Declaration of Human Rights, and (c) the 1961 Convention on the Reduction of Statelessness. In international law, nationality is synonymous with citizenship.

Question 5: Specifically, what provision of the 1961 Convention on the Reduction of Statelessness is relevant to Senator Poe? Answer: Article 2 which states: “A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born in the territory of parents possessing the nationality of that State.”

Question 6: The Philippines is not a signatory to this 1961 Convention. Why are we bound by its provisions? Answer: Because they have become “generally accepted principles of international law” which, as earlier stated, are as binding as statutes passed by Congress.

Question 7: Who are natural-born citizens? Answer: Under the 1987 Constitution, they “are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship.”

Question 8: Why is Grace Poe a natural-born citizen? Answer: Because under Article 2 of the 1961 Convention quoted above, she—a foundling who was found in Iloilo, Philippines—is deemed to have Filipino parents. Perforce, she is natural-born since her presumed parents, specifically her father, are accorded Philippine citizenship.

Question 9: Is she not a naturalized Filipino falling under item 5 in the answer to Question 3— that she was “naturalized in accordance with (international) law”? Answer: No, it was her parents who acquired Philippine citizenship pursuant to international law. But she derived her citizenship from her presumed Filipino father; thus, she is a citizen from birth without having to do anything to acquire or perfect her Philippine citizenship.

Question 10. May her biological father be proven to be actually an alien? Answer: Yes, but the burden of proof belongs to those who challenge her natural-born status. Unless such proof is presented, her parents continue to be presumed Filipinos. Thus, she retains her natural-born citizenship.

Question 11: Grace Poe became a US citizen after she got married and moved to the United States, how did she reacquire her natural-born citizenship? Answer: By taking an oath of allegiance to the Philippines pursuant to the Dual Citizenship Law (Republic Act No. 9225) and by renouncing her American citizenship pursuant to American law.

Question 12. Aside from invoking the interaction between our Constitution and customary international law, may Senator Poe prove her natural-born citizenship by other methods? Answer: Yes, by undergoing a DNA test showing that her biological father is a Filipino. Our Supreme Court has issued many decisions affirming the binding force of DNA tests.

Question 13. How are DNA tests conducted and can such tests conclusively prove who her biological father and mother are? Answer: Yes, if done according to the protocols laid down by the Supreme Court. More on this in a future column.

* * *

Comments to chiefjusticepanganiban@hotmail.com

Panganiban Contradicts Carpio On Poe Citizenship

FORMER Chief Justice Artemio Panganiban yesterday weighed in on the citizenship issue hounding Sen. Grace Poe, saying she is considered a natural-born citizen under the “generally accepted principles of international law, which form part of the laws of the land.”

Panganiban disagreed with the position taken by Senior Associate Justice Antonio Carpio, who said last week that Poe can be a considered a Filipino under international law but only as a naturalized citizen and not a natural-born citizen.

The former chief justice cited Article 2 of the 1961 Convention on the Reduction of Statelessness, which says: “A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born in the territory of parents possessing the nationality of that State.”

“Why is Grace Poe a natural-born citizen? Because under Article 2 of the 1961 Convention quoted above, she—a foundling who was found in Iloilo, Philippines—is deemed to have Filipino parents. Perforce, she is natural-born since her presumed parents, specifically her father, are accorded Philippine citizenship,” Panganiban said in a statement.

He further explained that although the country is not a signatory to the 1961 Convention, it is still bound by its provisions because they have become “generally accepted principles of international law which are as binding as statutes passed by Congress.”

The generally accepted version of Poe’s birth was that as a foundling or abandoned child, she was found at the Jaro Cathedral in Iloilo in 1968 and was adopted by the late Fernando Poe Jr. and his wife, Susan Roces.

Carpio, who chairs the Senate Electoral Tribunal (SET), made his statement last September 21 during the start of oral arguments on the petition filed by 2013 losing senatorial bet Rizalito David questioning the citizenship of Poe.

In his petition, David argued that Poe should be disqualified from the Senate since she failed to meet the constitutional requirements on residency and citizenship.

The SET junked Poe’s residency issue last September 11.

Panganiban added that the 1935 Constitution, the country’s basic law in 1968 when Poe was born, provides that the Philippines adopts the generally accepted principles of international law as part of the law of the nation.

“Thus, by this ‘doctrine of incorporation,’ customary international laws are given the same force and effect as statutes passed by Congress,” he added.

Aside from the 1961 Convention, Panganiban said foundlings are also protected by the 1930 Hague Convention on the Conflict of Nationality Laws and the 1948 Universal Declaration of Human Rights, which states that the right to a nationality is one of the most fundamental human rights adding that nationality is synonymous to citizenship in international law.

Panganiban said Poe, who has announced her bid for the presidency next year, can’t be considered naturalized in accordance with international law because her parents had acquired Philippine citizenship pursuant to  international law.

“She derived her citizenship from her presumed Filipino father; thus, she is a citizen from birth without having to do anything to acquire or perfect her Philippine citizenship,” Panganiban stressed.

He said the 1935 Constitution provides, among others, that those whose fathers are citizens of the Philippines are considered Filipino citizens.

If Poe’s biological father happens to be a foreigner, Panganiban said the burden of proof belongs to those who are challenging her natural-born status.

“Unless such proof is presented, her parents continue to be presumed Filipinos. Thus, she retains her natural-born citizenship,” Panganiban said.

During the September 21 oral arguments, Carpio said that in the absence of a law passed by Congress recognizing foundlings, international customary law can be applied, referring to the Covenant on Civil and Political Rights and the UN Convention which states that all human beings, including foundlings, have a right to nationality and the status of a stateless person. respectively.

Carpio explained that if there is a customary international law saying foundlings can be deemed citizens of the country where they are found, it is applied under the principle of incorporation. But he said even with this, a foundling can only be considered as a naturalized citizen.

Carpio said, however, that Poe’s camp can present evidence, including DNA matching if they can find her blood relatives, to prove that she is a natural-born Filipino. 

Poe’s lawyer, Alex Poblador, had earlier said DNA testing is being done to identify the biological parents of the lawmaker. 

source:  Malaya