Dismissal of Arroyo NBN case ‘mind boggling’ — prosecutors

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State prosecutors sought a reversal of the dismissal of the graft and breach of ethical conduct cases against former president Gloria Macapagal-Arroyo over the botched National Broadband Network (NBN) deal with Chinese firm ZTE, saying it was “mind-boggling” the court did not find anything anomalous in the graft-ridden deal.

In a motion for reconsideration filed before the Sandiganbayan Fourth Division, the Office of the Special Prosecutor said the dismissal of Arroyo’s cases of graft and violation of Code of Conduct and Ethical Standards for Public Officers through demurrer to evidence should be reversed.

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

The prosecution refuted the court’s claim that the panel was unable to prove Arroyo had personal interest in the project in violation of Section 3 (i) of the Anti-Graft and Corrupt Practices Act.

The panel said Arroyo was aware of the anomalies that marred the NBN deal, such as the alleged bribery attempt of then Commission on Elections chair Benjamin Abalos to National Economic Development Authority (Neda) Director General Romulo Neri with P200 million to fast track the approval of the project.

When he testified in the graft trial, Neri affirmed his statement in the Senate investigation into the anomaly that he informed Arroyo of the bribe attempt by Abalos, although this affirmation was not accepted by the division chair Associate Justice Jose Hernandez, the prosecution said.

The prosecution also countered the court’s decision that there was no need for public bidding because the Chinese government would fund the NBN project.

“With due respect, this statement is completely barren of any legal and evidentiary mooring,” the prosecution said.

The prosecution reminded the court that public bidding in all procurement of infrastructure, goods and services is required under the Republic Act 9184 or the Government Procurement Reform Act.

The prosecution noted that the court refused to determine whether or not the NBN deal was grossly disadvantageous to government, despite the glaring evidence indicating injury to government.

“In its resolution, the Honorable Court refuses to make a determination whether the NBN-ZTE contract was grossly disadvantageous as it is of the opinion that the contract price alone is not sufficient to make a determination of the disadvantage, absent the annexes and the attachments thereof,” the prosecution said.

The court also seemed to give the impression the accused government officials were presumed to have performed in good faith and with regularity, despite glaring evidence of graft.

“It is mind-boggling how the presumption of regularity and good faith must be presumed in this anomalous transaction considering that the prosecution was able to prove the various irregularities and anomalies leading to the signing of the contract,” the prosecution said.

The prosecution cited the following anomalies: Abalos’ attempt to bribe Neri with P200 million for the immediate approval of the ZTE proposal; the absence of public bidding; and the irregular meeting in Shenzen, China between Abalos and the ZTE officials.

Another evidence ZTE was given undue advantage was the fact that the proposals of another bidder Amsterdam Holdings Inc. (AHI) and other American firms were ignored in the bidding process.

READ: What Went Before: The NBN-ZTE deal

“The absence of a competitive public bidding casts doubt to the fairness and honesty of the procurement process… Having singled out ZTE and precluding the others from the project, the government was put in a grossly disadvantageous position. The government was not afforded the chance to choose which of the many proposals offer the better deal for the government,” the prosecution said.

The prosecution said that the anomalies in the NBN-ZTE contract could not be justified by the lack of annexes in the contract.

The prosecution also refuted the court’s claim that there was nothing wrong in the pacing of the approval process, because the project underwent the stages of evaluation and review by Neda technical committee before it was approved by the Neda board.

The prosecution said there was no single meeting by the Neda board in Dec. 2006 and Jan. 2007, and suddenly there was a meeting in March 2007 for the approval of the ZTE proposal.

The prosecution also refuted the court’s claim that Arroyo was not liable for violating Section 7(d) of the Code of Conduct and Ethical Standards for Public Officials and Employees or Republic Act 6713, which prohibits accepting gifts in connection with any transaction of government.

The prosecution said AHI President Jose De Venecia Jr.’s testimony that Arroyo was the beneficiary of the lunch and golf game as gifts from ZTE, at the time the Chinese firm’s proposal was under review, was enough to prove Arroyo breached the code of conduct for public officials.

The prosecution also countered the court’s dismissal of the breach of conduct charge for lack of jurisdiction over the alleged act that happened in China.

“Public servants must exhibit at all times the highest sense of honesty and dedications to duty… This injunction enshrined under the Constitution and is enshrined in Republic Act 6713 is more applicable to the accused, being the head of state,” the prosecution said.

“Wherever she goes, this guiding principle goes with her. Just because she is outside the jurisdiction of the Philippines, she had divested herself of her duties as the foremost public officer of the land,” the prosecution added.

READ: Sandigan dismisses Arroyo’s NBN-ZTE case

In its resolution granting Arroyo’s demurrer, the court said the prosecution failed to prove Arroyo’s element of interest for personal gain in the NBN project. Arroyo chaired the National Economic Development Authority (Neda) board that approved the project.

The court said Arroyo’s cancellation of the NBN-ZTE contract in 2007 “bolsters the argument that accused (Arroyo) did not hold any interest for personal gain in the approval and implementation of the NBN project.”

The justices said because the contract was cancelled byArroyo in 2007, there was no longer any project to speak of when the Ombudsman filed the case in 2011.

The court also said Arroyo could not be held liable for breaching the code of ethics when she had lunch and played golf with ZTE officials in China.

“There was no clear and indubitable proof presented by the prosecution that accused PGMA was the recipient. As a matter of fact, there was no evidence introduced on who made the payment,” the ruling read.

The court dismissed the graft charges against Arroyo, her husband former First Gentleman Mike Arroyo, and Abalos because the prosecution failed to prove that the contract was grossly and manifestly disadvantageous to the government.

In the end, the court said the prosecution failed to prove Arroyo’s guilt beyond reasonable doubt.

“Wherefore, in its entirety, the evidence adduced by the prosecution … did not sufficiently prove the guilt of accused Ma. Gloria Macapagal-Arroyo and this court hereby grants accused’s demurrer to evidence,” the court said in its ruling.

“These cases are then dismissed,” the court added.

The court in closing its resolution quoted Mae West from the 1997 film Every Day’s a Holiday: “It ain’t no sin if you crack a few laws now and then, just so long as you don’t break any.”

READ: Jun Lozada convicted of graft, gets 6-10 years
 | Romulo Neri cleared in NBN-ZTE graft case | Ex-Comelec chair Abalos acquitted from graft over NBN-ZTE deal

The star NBN-ZTE scandal witness Rodolfo “Jun” Lozada Jr., who accused Arroyo as the mastermind, was convicted of graft and sentenced to 10 years in jail in a separate case over an anomalous land deal when he was president and chief executive officer of the state-owned Philippine Forest Corp. (PFC) in 2007 and 2008.

The separate graft cases of Abalos and Neri before the court have all been dismissed. CBB/rga