Abalos seeks to dismiss graft charge over NBN-ZTE deal

FORMER Commission on Elections chairman Benjamin Abalos has asked the Sandiganbayan to dismiss the graft charge against him over the botched National Broadband Network (NBN) deal with Chinese firm ZTE.

Abalos filed his demurrer to evidence after the anti-graft court granted him leave to file the legal remedy intended to dismiss the evidence presented against him by the prosecution.

Abalos is a co-accused in one of two graft charges against former President Gloria Arroyo over the anomalous project.

READ: Arroyo denies graft charges in broadband deal with China firm 

In his demurrer, Abalos said the prosecution failed to prove that he used his influence to fast track the approval of the broadband project that was branded as disadvantageous to the government.

He said the prosecution star witness Rodolfo Lozada Jr. failed to substantiate his testimony that Abalos and Arroyo’s husband, the former first gentleman Jose Miguel “Mike” Arroyo, conspired and pressured then Socioeconomic Planning Secretary Romulo Neri to approve the ZTE proposal.

Abalos said though Lozada referred to Abalos as a “broker” for ZTE, the witness “hardly spoke” about the supposed pressure exerted on Neri to recommend the approval of the NBN proposal of ZTE.

“Hardly, if at all, did Lozada touch on any ‘pressure’ applied by the accused on Secretary Neri,” Abalos’ demurrer read.

Abalos also said the prosecution failed to present the original copy of the contract, which was purportedly disadvantageous to government because it was allegedly overpriced at $329 million.

He said the prosecution also failed to present to the court the attachments of the contract, such as the priced bill of quantities, technical specifications, scope of work, among others.

“Without the attachments, being integral to the contract by its express terms… there cannot be a fair and objective determination and judgment as to whether or not the contract is grossly and manifestly disadvantageous to the government…,” Abalos said.

He said the prosecution failed to prove that the ZTE proposal was overpriced to $329 million from $130 million.

Lozada has testified that the value of the contract should only be $130 million.

Abalos, however, argued that the figure was apparently the proposed amount of the losing bidder, the Amsterdam Holdings Inc. owned by Jose “Joey” De Venecia III, the son of former House Speaker Jose De Venecia Jr.

There was also no unanimous testimony by the prosecution’s witnesses on the original valuation of the ZTE proposal.

“There is no support in the prosecution’s evidence therefore that the ‘actual cost of the ZTE proposal’ was only $130 million. It cannot follow likewise that the ZTE was overpriced at $329 million as the original price to which the overprice[d] [figure] can be compared has not been established,” Abalos’ demurrer said.

He said the cost of the project was arrived at $329 million not because of overpricing but because of “modifications, changes in scope and requirements, mandated by the government in the exercise of critical judgement in its evaluation of the ZTE proposal.”

At the height of the controversy in October 2007, Arroyo cancelled the project, which meant there was no contract disadvantageous to government to speak of, Abalos pointed out.

The prosecution failed to prove its allegation that the ZTE proposal was disadvantageous because the contract only covered 30 percent of the country compared to the proposal by De Venecia’s Amsterdam that covered 80 percent of the country at a lesser cost, he added.

Abalos said even De Venecia in his testimony admitted that his proposal could only cover up to the country’s third class municipalities, and would not cover the fourth to sixth class municipalities because Amsterdam would not be able to make a profit servicing these low-income towns.

Commission on Information and Communications Technology chair Ramon Sales even testified that the government would have benefited the most in the ZTE project because it would cover even the “unserved and under-served” municipalities in the country, Abalos said.

Abalos said the prosecution failed to prove that the supposed meetings between Abalos, Arroyo and the Chinese officials over lunch and a golf game were undertaken to speed up the approval of the project.

“Stripped of the drama and the sensationalism generated in mass media by the altogether fantastic tales woven by De Venecia, Lozada and their cohorts, the evidence presented confirms that the accused herein properly detached themselves from the approval process,” Abalos said.

“In the final analysis, the evidence adduced by the prosecution has even gone further and disproves the accusation that the contract is grossly and manifestly disadvantageous to government,” he added.

Abalos, Arroyo and her husband were charged with one count of graft or violation of Section 3(g) of the anti-graft law for allegedly facilitating and fast tracking the approval of the NBN proposal of ZTE despite being disadvantageous to government because the contract was overpriced and “financially burdensome” compared to the proposal of another bidder Amsterdam.

The court has acquitted Abalos in his separate graft case for allegedly brokering the deal with China in exchange for a $130-million commission.

READ: Ex-Comelec chair Abalos acquitted from graft over NBN-ZTE deal 

Abalos was found not guilty of violating Section 3(h) of the Anti-Graft and Corrupt Practices Act.

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 the government and China’s ZTE.

Abalos was also accused of bribing De Venecia III with $10 million for his firm to back out of the project so that ZTE would bag the contract.

Abalos later asked De Venecia III for a partnership with ZTE for the latter to supply the transmission equipment.

De Venecia III later declined the offer and pursued his project proposal for the broadband deal.

READ: Arroyo pleads not guilty 3 times to NBN-ZTE graft raps

The second graft charge of Arroyo involved violating Section 3(i) of the anti-graft law for allegedly approving  the NBN project for personal gain despite knowing the irregularities in the project.

READ: Arroyo pleads not guilty 3 times to NBN-ZTE graft raps

The prosecution said among the anomalies Arroyo knew was the attempt of Abalos to bribe 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 the 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.

Besides the NBN-ZTE charges, Arroyo is detained for plunder for the alleged misuse of P366 million in charity funds for personal gain.

READ: Sandigan denies Arroyo move to junk evidence in PCSO plunder case

Arroyo has since been denied bail and demurrer, and she has elevated her case to the Supreme Court. She is under hospital detention./ac/rga