Pampanga congresswoman Gloria Macapagal-Arroyo. INQUIRER FILE PHOTO
The Sandiganbayan Fourth Division has allowed former President now Pampanga congresswoman Gloria Arroyo to file her demurrer of evidence in her bid to dismiss her graft charges in connection with the $329-million National Broadband Network (NBN) deal with Chinese telecommunications giant ZTE.
In a resolution, the antigraft court said Arroyo is given a non-extendible period of 10 days from notice to file her demurrer to evidence, a move to discredit the pieces of evidence presented against her by the prosecution and dismiss the case.
READ: Arroyo pleads not guilty 3 times to NBN-ZTE graft raps
Her lawyers were also ordered to provide a copy of the demurrer to the prosecution, which was given a period of 10 days to file its comment of opposition.
The hearings for the initial presentation of the defense panel’s evidence scheduled on July 20 and 21 were cancelled until further notice, the court said.
The resolution was penned by chairperson Associate Justice Jose Hernandez and members Associate Justices Alex Quiroz and Geraldine Econg.
A demurrer is a legal remedy that seeks to dismiss the grounds set by the prosecution against an accused.
Arroyo was charged with two counts of graft for approving the deal despite being disadvantageous to government and despite knowing its irregularities. She was also accused of having personal gain in the contract.
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 graft with her husband, former First Gentleman Jose Miguel Arroyo, and former Commission on Election chair Benjamin Abalos, whom the prosecution alleged both used their influence to facilitate the approval of the project.
Arroyo was 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 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 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 $49 million or close to P2 billion in savings for government.
Arroyo’s cancelation of the project at the height of the controversy in Oct. 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 opposition on the demurrer, the prosecution maintained that the NBN contract was disadvantageous because its original price of $130 million 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 to force De Venecia III to “back off” from the project and not pursue his proposal even though it is cheaper and more advantageous to government.
Besides the NBN-ZTE charges, Arroyo was detained for plunder over 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
Abalos had been acquitted in a separate graft case of allegedly brokering the deal with China in exchange for a $130-million commission. IDL/rga