Gloria Arroyo seeks dismissal of graft, ethics cases over $329-M NBN-ZTE deal

Former President and incumbent Pampanga Rep. Gloria Macapagal-Arroyo has asked the Sandiganbayan to allow her to file a demurrer to evidence, which seeks the dismissal of graft and ethics violation cases filed against her in connection with the botched $329-million national broadband deal.

In two separate motions filed with the Sandiganbayan Fourth Division, Arroyo, through her legal counsel led by Jesi Howard Lanete, said the prosecution failed to present any evidence that would prove her guilt in the alleged crimes.

Arroyo is facing before the Fourth Division one count each of violation of Section 3 (g) and 3 (i) of Republic Act (RA) 3019 or the Anti-Graft and Corrupt Practices Act and Section 7 (d) of RA 6713 of the Code of Conduct and Ethical Standards for Public Officials and Employees.

Section 3 (g) of RA 3019 prohibits a public official from entering into a contract that is disadvantageous to the government while Section 3 (i) prohibits a public official from having direct or indirect interest or personal gain in a contract or transaction that requires the approval of his or her office.

Section 7 (d) of RA 6713, meanwhile, prohibits a public official from soliciting or accepting gift, gratuity, favor, entertainment loan or anything of monetary value which may affect the functions of his or her office.

Inadmissible evidence?

In her motion, Arroyo dismissed the prosecution’s allegation that the national broadband network (NBN) deal between the Philippine government and Chinese company Zhing Xing Telecommunications Equipment Inc. (ZTE) was overpriced by more than 50 percent as the actual cost of the project was supposedly only $130 million yet the approved contract was pegged at $329 million.

Arroyo’s camp pointed out that the prosecution failed to submit the original copy of the NBN contract and its attachments, making the allegation baseless.

“The prosecution did not present the original of the NBN Contract and failed to lay the basis for the introduction of secondary evidence. The NBN Contract that the prosecution offered into evidence is incomplete. It lacked several attachments,” Arroyo’s motion read.

The former President’s camp further pointed out that the NBN contract entered in China on April 21, 2007 was cancelled by Arroyo on October 2, 2007 after receiving reports of alleged irregularities.

“Even assuming arguendo that the NBN Contract is admissible, it never became effective…Hence, in contemplation of law, there is no contract to speak of,” Arroyo’s motion read.

Arroyo’s camp said that based on previous Supreme Court and Sandiganbayan rulings, “a rescinded contract is a non-existent contract and, hence, cannot be a basis for filing charges of violation of Section 3 (g) of RA 3019.

Persecution not prosecution?

Arroyo also belied the prosecution's allegation that she fast-tracked the approval of the contract, saying that even the prosecution’s own witnesses, National Economic and Development Authority (NEDA) officials Ruben Reynoso and Fortunato Abrenilla, both testified that the NBN proposal went through “several layers of review” before reaching the NEDA Board.

“This is a clear case of persecution rather than prosecution. The NEDA Board unanimously approved the NBN project upon the recommendation of the NEDA Infrastructure Staff, NEDA ICC Secretariat, and NEDA Technical Board,” Arroyo’s motion read.

“Yet, the Ombudsman maliciously singled out President Arroyo for approving a contract that is supposedly manifestly and grossly disadvantageous to the government. It is the NEDA Board, not the President of the Philippines, which has the power to approve projects such as the NBN project,” it added.

Arroyo’s camp said the prosecution also failed to present any evidence that would prove that she has personal interest or gain in the approval of the NBN deal.

Arroyo’s lawyers said she was not even aware that former Commission on Elections commissioner Benjamin Abalos allegedly attempted to bribe then-NEDA director general Romulo Neri with P200 million to immediately approve the proposal of ZTE.

The Sandiganbayan Fourth Division has already dismissed the graft case against Abalos in connection with the NBN-ZTE deal.

“Moreover, no one brought to the NEDA Board’s attention any irregularity or anomaly. Such fact too negates criminal intent,” Arroyo’s camp added.

Arroyo also belied the allegation that the NEDA Board’s decision to resort to direct contracting instead of a public bidding was not supported by a legal opinion from the Department of Justice.

“The allegation in the Information [of the case] that there was an absence of DOJ opinion whether the contract is exempted from the coverage of public bidding is false. The prosecution in fact, offered into evidence the DOJ Opinion dated 26 July 2007 (Exhibit “QQ”),” the motion read.

Golf game, lunch

Lastly, Arroyo’s camp said that the prosecution’s allegation that she received gifts and favor from ZTE such as a free golf game and lunch in China is baseless and immaterial.

“The prosecution failed to prove that it was ZTE that paid for the golf game of President Arroyo. Even assuming arguendo that it was ZTE that paid for the golf game of President Arroyo, the value of the golf game is of nominal or insignificant value,” the motion read.

“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-billion peso project,” it added.

With regard to the alleged free lunch, Arroyo’s lawyers said the prosecution could not even ascertain its value or if the former president had eaten this supposed free lunch at all.

Demurrer to evidence

Arroyo said that if the court would allow her to file a demurrer to evidence, she can further expound on why the cases should be dismissed.

“She believes that if given the opportunity, she can persuade the Honorable Court that the prosecution failed to meet the stringent standard of proof beyond reasonable doubt,” the motion read.

A demurrer to evidence seeks the dismissal of the case halfway through the trial based solely on the evidence presented by the prosecution.

Under the rules, an accused needs to seek the permission of the court first before filing a demurrer to evidence so as not to lose his or her chance to present counter-evidence in case the demurrer is denied by the court.

Arroyo’s camp employed a similar legal tactic in her plunder case before the Sandiganbayan First Division in connection with the alleged misuse of P366-million worth of Philippine Charity Sweepstakes Office (PCSO) funds.

The First Division denied Arroyo’s demurrer in 2015, prompting her camp to elevate the case before the Supreme Court. —KBK, GMA News