The Sandiganbayan on Friday set for resolution former President Gloria Arroyo’s motion for leave to file a demurrer of evidence to dismiss the charges against her in connection with the $329 million National Broadband Network (NBN) deal with Chinese telecommunications giant ZTE.
She asked the court for permission to file a demurrer in her bid to dismiss the case for lack of evidence. A demurrer seeks to dismiss the grounds set by the prosecution against an accused.
The antigraft court Fourth Division submitted for resolution Arroyo’s motion for leave after it also accepted the prosecuting panel’s comment opposition on the said motion.
The court submitted for resolution the demurrer four years after Arroyo underwent arraignment and pleaded not guilty to the charges.
READ: Arroyo pleads not guilty 3 times to NBN-ZTE graft raps
The former President was accused of violating Section 3(g) of the Anti-Graft and Corrupt Practices Act when she allegedly fast tracked the approval of the project despite being disadvantageous to government.
Arroyo was charged with the graft offense with her husband, former First Gentleman Jose Miguel Arroyo, and former Commission on Elections chair Benjamin Abalos, whom the prosecution alleged both used their influence to facilitate the approval of the project.
Arroyo was also charged with a second graft offense for violating Section 3(i) of the antigraft law when she allegedly approved the NBN project for personal gain despite knowing the irregularities in the project.
The prosecution said among the anomalies Arroyo knew was the attempt of Abalos to bribe National Economic Development Authority (Neda) Secretary Romulo Neri with P200 million to immediately approve the project despite the lack of public bidding.
Lastly, Arroyo was charged with one count of violating the Code of Conduct and Ethical Standards for Public Officials and Employees or Republic Act 6713 for having lunch and playing golf with ZTE officials while the broadband project proposal was still being assessed by government.
READ: What Went Before: The NBN-ZTE deal
Arroyo was accused of violating Section 7(d) of the code of conduct which penalizes solicitation or acceptance of gifts in connection with any transaction of government.
The 2007 NBN-ZTE project would have interconnected government offices nationwide through broadband technology.
Demurrer
In her demurrer, Arroyo through her lawyers said the prosecution failed to prove that the contract was disadvantageous to government.
Her motion said the prosecution failed to prove that the contract was initially pegged at $130 million and was later overpriced at $329 million.
The prosecution also allegedly failed to prove that the ZTE contract at 30 percent coverage in the country was more disadvantageous than the proposal of bidder Amsterdam Holdings Inc. (represented by Jose “Joey” De Venecia III), whose proposal the prosecution claimed was more advantageous because Amsterdam promised 80 percent at a lesser cost.
Arroyo’s counsel said the prosecution’s own witness Engr. Dante Mariaga testified that the ZTE’s proposal was to cover 100 percent of the country, while De Venecia admitted that Amsterdam’s proposal covered only the third class municipalities while leaving out the fourth to sixth classes.
She also claimed the project was advantageous to government because the ZTE’s proposal of $329.48 million or P16.474 billion was payable in 10 years with a grace period of five years at an interest rate of three percent per annum, which means “the farther into the future a payment is made, the less costly it is to government.”
Arroyo also said she did not fast track the approval of the project which she said went through several layers of review before reaching the Neda board.
“This is a clear case of persecution rather than prosecution,” her motion said.
On her second graft charge, Arroyo said her move to “modify” the NBN contract by “reducing the project cost” “negates the charge of ‘interest’ for ‘personal gain.'”
According to her motion, Arroyo reduced the project cost to $330 million from $379 million, resulting in $39 million or close to P2 billion in savings for government.
Arroyo’s cancelation of the project at the height of the controversy in October 2007 also negated interest for personal gain, according to her motion.
“It was the Neda Board that unanimously approved the NBN project. Yet, the Ombudsman maliciously singled out President Arroyo for supposedly ‘becoming interested’ ‘for personal gain’ in the approval of the NBN project,” her motion said.
As to hastily approving the project, Arroyo said “haste in public service is a good thing.” “Up until now, six years after the term of President Arroyo, our country still has no national broadband network,” her motion said.
On her breach of code of conduct charge, Arroyo said the prosecution failed to prove that ZTE paid for the lunch and golf game with Arroyo.
The prosecution also failed to prove that the value of these alleged solicitation was significant enough for ZTE to gain favors from Arroyo.
“It is absurd to suggest that the fee for the golf game was given in anticipation of or in exchange for the granting of a multi-million peso project… The value of the lunch eaten by President Arroyo could not have been substantial or significant, even if she had a big appetite,” her motion read.
Opposition
In its comment opposition on the first demurrer, the prosecution maintained that the NBN contract was disadvantageous because its original price of $130 million was ballooned to $329 million even though ZTE could only cover 30 percent of the country compared to Amsterdam’s 80 percent coverage.
The prosecution also said Arroyo’s cancelation of the project “merely shows its grossly disadvantageous nature.”
The prosecution added that Arroyo’s husband even used his influence with the former President to force De Venecia III to “back off” from the project and not pursue his proposal even though it was cheaper and more advantageous to government.
“As a spouse of the most powerful person of the Republic, his words and demeanor did not only elicit fear from a private individual, they likewise command utmost influence over the person…” the opposition read.
The prosecution also said Abalos brokered the deal for ZTE and also threatened De Venecia not to pursue the project.
“Even if it is not within his office as Comelec chairman, he was the one who introduced the then Speaker of the House (Jose De Venecia Jr.), accused Arroyo to the ZTE officials at the golf game and lunch at ZTE headquarters in Shenzhen, China,” the prosecution said.
In opposing the demurrer on the second graft charge, the prosecution said it was able to prove that Arroyo was aware of the anomalies surrounding the project, such as Abalos’ alleged bribery to Neri, who was allegedly offered P200 million to approve the project.
The prosecution maintained that Arroyo was even present at the signing of the contract even though it was unnecessary because she could have relegated the task to the late Transportation Secretary Leandro Mendoza.
“While all these happened, (Arroyo) hastily approved the ZTE proposal for the broadband project after she, Abalos, Mendoza and the First Gentleman and Jose De Venecia Jr. played golf and had lunch with the ZTE officials… All these facts lead to only one conclusion that indeed (Arroyo) became interested of the NBN-ZTE transaction for personal gain,” the prosecution said.
As to the last charge for breaching the ethical conduct, the prosecution said it was “incorrect to insist that the golf game and the lunch taken by (Arroyo) and her company was not substantial,” adding that Arroyo accepted a gift or favor from ZTE in connection with the NBN-ZTE contract.
Besides the NBN-ZTE charges, Arroyo was detained for plunder for the alleged misuse of P366 million in charity funds for personal gain.
She has since been denied bail and demurrer, and she has elevated her case to the Supreme Court. She is under hospital detention.
READ: Sandigan denies Arroyo move to junk evidence in PCSO plunder case
Meanwhile, Abalos had been acquitted of his separate graft case for allegedly brokering the deal with China in exchange for a $130-million commission.
Abalos was found not guilty of violating Section 3(h) of the Anti-Graft and Corrupt Practices Act, which penalizes having financial and pecuniary interest in the transaction between government and the Chinese corporation ZTE.
The court said the prosecution failed to prove that Abalos lobbied the deal for a fee, adding that the prosecution was only able to prove that Abalos brokered the deal between Amsterdam’s De Venecia and ZTE, and not between government and China’s ZTE.
Abalos was accused of bribing Amsterdam Holdings Inc. (AHI) President Jose De Venecia III (son of former Speaker Jose De Venecia) with $10 million for his firm to back out of the project so that ZTE would bag the contract.
Abalos would later ask De Venecia for a partnership with ZTE for the latter to supply the transmission equipment, which De Venecia later ruled out, opting to continue its project proposal for the broadband deal. JE/rga
READ: Ex-Comelec chair Abalos acquitted from graft over NBN-ZTE deal