SC junks 3 petitions vs ZTE deal, says govt cancelled it

MANILA, Philippines - The Supreme Court on Monday junked three petitions questioning the constitutionality of the controversial $329 million national broadband deal between the government and the Chinese firm ZTE Corp. saying that the petitions were "moot." The three petitions - filed by Iloilo Vice Governor Rolex Suplico, a group called Lawyers and Advocates for Accountability, Transparency, Integrity and Good Governance (Latigo), and the Amsterdam Holdings Inc., which also vied for the NBN project - was dismissed on the basis of an 11-3 vote. Those who dissented were Associate Justices Antonio Carpio, Conchita Carpio-Morales and Ma. Alicia Austria-Martinez. Justice Minita Chico-Nazario was on official leave. The decision was contained in an 18-page en banc decision penned by Associate Justice Ruben Reyes. In it, the SC said the petitions became moot when President Gloria Macapagal Arroyo decided to cancel the project during a meeting held on October 2, 2007 in China with its President Hu Jintao. “Since we consider the act of cancellation by President Arroyo of the proposed ZTE-NBN project with the Chinese President as an official act of the executive department, the Court must take judicial notice of such official act without need of evidence," the Court said. The Court explained that under Section 1, Rule 129 of the Rules of Court, it is mandatory for the Court to take judicial notice of the official acts of the President of the Philippines without introduction of evidence. “Pontificating on issues which no longer legitimately constitute an actual case or controversy will do more harm than good to the nation as a whole. Wise exercise of judicial discretion militates against resolving the academic issues, as petitioners want this court to do," the SC added. The SC said that even if it disregarded the mootness of the case, it could not completely rule on the merits of the case because the resolution of the three petitions involved settling factual issues which definitely required reception of evidence and that the SC was not a "trier of facts." The court also said that it would be impossible to annul and set aside the award of the ZTE contract without evidence to support a prior factual finding pointing to any violation of law that could lead to such an annulment order. In its petition, AHI sought full access to all agreements entered into by the respondents involving the NBN project pursuant to Article VIII, Section 5 (1) of the Constitution. But the high court said that it would be too presumptuous to summarily compel public respondents to comply with pertinent provisions of law regarding procurement of government infrastructure projects without any factual basis or prior determination of particular violations committed by specific government officials of the executive branch. In the same decision, the SC also dissolved its earlier temporary restraining order on the issue. That TRO was issued on September 11, 2007. No comment - Palace Asked to comment, Malacanang officials said they preferred to review the Supreme Court decision before making any comment. Press Secretary Jesus Dureza and Presidential spokesman Anthony Golez said they wanted to "get the full context of the decision" before making any comment. "We are not prepared to issue any statement yet until and unless we get a copy of the said ruling. However, may I point out that in our jurisdiction, it is axiomatic that when the Supreme Court issues a final ruling, it settles with finality any controversy brought before it for adjudication," Dureza said. "Everyone must submit to such ruling as it is the court of last resort. evidently, the reglamentary period will start to run from the date of promulgation. The parties can still pursue remedies available. So it is best to wait for the moment," he added. Deal was void ab initio In his dissenting opinion, Justice Carpio said the ZTE-NBN deal was void ab initio (from the beginning) for being contrary to the Constitution, the Administrative Code of 1987, the Government Auditing Code of the Philippines, and the Government Procurement Reform Act. He said that the supply contract was void from the beginning in the absence of any of these three requirements - an appropriations law, a certificate of appropriation and fund availability and public bidding. “As such, the ZTE Supply Contract is legally non-existent. The Philippine government’s decision ‘not to continue with the (project)’ during the pendency of the case, even if deemed a cancellation of the contract, had no legal effect on the status of the contract and did not moot this petition," Carpio said, noting the transcendental importance of the case. He noted that the contract was signed without an appropriation from Congress and without public bidding, and that the SC has a duty to resolve the important issues in this case, including the novel question on the status of executive agreements that conflict with national law and prevent a recurrence of government contracts that violate the Constitution and existing statutes. “This case puts to the test the efficacy of constitutional and statutory proscriptions designed precisely to prevent such contracts… Not only are the legal issues in this case ‘capable of repetition yet evading review.’ The ZTE supply contract itself is capable of being resurrected," he said. Carpio pointed out that the cancellation of the contract was just a unilateral declaration as per endorsement of the Department of Transportation and Communication. He added that ZTE has not manifested to the Court its consent to the discontinuance or cancellation of the supply contract, thus the decision of the government to abandon the NBN-ZTE project has not rendered the petitions moot. Under the RP-China agreement, the NBN project would be financed by the Export-Import Bank (EximBank) of China with a three percent annual interest and 20-year repayment period. Arroyo signed the original NBN contract with ZTE for $329-million on April 20, 2007 in Hainan, China. The contract was signed supposedly to save the government some P3.4 billion yearly in telephone bills. - GMANews.TV