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Arroyo asks Sandiganbayan to drop graft, ethics

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(Photo from Philippine Daily Inquirer)

 

QUEZON CITY — The camp of former President and now Pampanga Congresswoman Gloria Macapagal-Arroyo has asked the Sandiganbayan to dismiss her graft and breach of code of conduct cases in connection with the botched US$329-million national broadband deal.

 

In three separate demurrer to evidence filed with Sandiganbayan Fourth Division, Arroyo, through her lawyers Laurence Arroyo and Jesi Howard Lanete, asked the court to dismiss her cases 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.

 

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

 

Her lawyers said there was no longer a need for their camp to present counter evidence as the prosecution's own evidence was weak enough to warrant the cases' dismissal since it supposedly cannot prove her "guilt beyond reasonable doubt."

 

"Reasonable doubt, according to the Supreme Court, 'is the inability to let the judicial mind rest easy upon the certainty of guilt after a thorough investigation of the whole evidence.' The prosecution's evidence does not meet this exacting standard. In fact, the prosecution's evidence does not even come close to meeting this standard," Mrs. Arroyo's demurrer read.

 

Section 3 (g) of RA 3019 prohibits public official from entering into a contract that is disadvantageous to the government while Section 3 (i) prohibits public officials 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 public officials from soliciting or accepting gift, gratuity, favor, entertainment loan or anything of monetary value which may affect the functions of his or her office.

 

Rescinded contract

In her demurrers, 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 USD130 million yet the approved contract was pegged at USD329 million.

 

Arroyo’s camp pointed out that the prosecution failed to submit the original copy of the NBN contract and its attachments, thus the allegation is 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 defense’s camp also reiterated that the NBN contract entered in China on April 21 2007 was eventually cancelled by Mrs. Arroyo on Oct. 2, 2007 after receiving reports of its alleged irregularities.

 

Her 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. Even assuming arguendo that the NBN Contract is admissible and assuming further that it became effective and was not cancelled, the prosecution failed to prove that it is grossly and manifestly disadvantageous to the Government,” the former chief executive’s demurrer read.

 

“The prosecution failed to prove its allegations that the ‘actual cost of the ZTE proposal for the National Broadband Project was only USD130 million but was finally pegged and overpriced at USD329 million,’” it added.

 

Her camp also dismissed the prosecution’s claim that the proposal of Amsterdam Holdings Inc. (AHI) owned by prosecution witness Jose “Joey” De Venecia III is more advantageous to the government and yet undue preference was given to ZTE.

 

Arroyo’s camp noted that De Venecia himself during the hearing of the case has already admitted that AHI’s proposal covered only up to the third class municipalities, leaving out the fourth, fifth and sixth class municipalities, while another witness of the prosecution, Engineer Dante Madriaga, testified that the ZTE proposal covered 100% of the Philippines.

 

“It is theory of the prosecution that the NBN Contract is grossly and manifestly disadvantageous to the government because AHI’s proposal is supposedly superior to it. Yet, the prosecution failed to present AHI’s written proposal,” Mrs. Arroyo’s camp added.

 

Arroyo also belied the allegation of the prosecution 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.

 

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

 

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.

 

“Wherefore, accused President Gloria Macapagal-Arroyo respectfully prays that the Honorable Court acquit her and dismiss the case(s) against her on the ground that the prosecution has failed to prove beyond a reasonable doubt that she violated Section 3 (g) of RA No. 3019...Section 3 (i) of RA No. 3019…[and] Section 7 (d) of RA No. 6713,” Mrs. Arroyo’s demurrers read.

 

Former First Gentleman Jose Miguel “Mike” Arroyo, had filed his own demurrer last week also asking the court to acquit him based on the prosecution’s supposed weak evidence.

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