Pampanga congresswoman Gloria Macapagal-Arroyo. INQUIRER FILE PHOTO
The Sandiganbayan Fourth Division has allowed former President now Pampanga congresswoman Gloria Arroyo to file her demurrer of evidence in her bid to dismiss her graft charges in connection with the聽 $329-million National Broadband Network (NBN) deal with Chinese telecommunications giant ZTE.
In a resolution, the antigraft court said Arroyo is given a non-extendible period of 10 days from notice to file her demurrer to evidence, a move to discredit the pieces of evidence presented against her by the prosecution and dismiss the case.
搁贰础顿:听 Arroyo聽 pleads not guilty 3 times to NBN-ZTE graft raps
Her lawyers were also ordered to provide a copy of the demurrer to the prosecution, which was given a period of 10 days to file its comment of opposition.
The hearings for the initial presentation of the defense panel鈥檚 evidence scheduled on July 20 and 21 were cancelled until further notice, the court said.
The resolution was penned by chairperson Associate Justice Jose Hernandez and members Associate Justices Alex Quiroz and Geraldine Econg.
A demurrer is a legal remedy that seeks to dismiss the grounds set by the prosecution against an accused.
Arroyo聽was charged with two counts of graft for approving the deal despite being disadvantageous to government and despite knowing its irregularities. She was also accused of having personal gain in the contract.
The former President was accused of violating Section 3(g) of the Anti-Graft and Corrupt Practices Act when she allegedly fast-tracked the approval of the project despite being disadvantageous to government.
Arroyo聽was charged with graft with her husband, former First Gentleman Jose Miguel Arroyo, and former Commission on Election chair Benjamin Abalos, whom the prosecution alleged both used their influence to facilitate the approval of the project.
Arroyo聽was charged with a second graft offense for violating Section 3(i) of the antigraft law when she allegedly approved the NBN project for personal gain despite knowing the irregularities in the project.
The prosecution said among the anomalies Arroyo聽knew was the attempt of Abalos to bribe National Economic Development Authority (Neda) Secretary Romulo Neri with P200 million to immediately approve the project despite聽 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 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.
Demurrer
In her demurrer, Arroyo through her lawyers said the prosecution failed to prove that the contract was disadvantageous to government.
Her motion said the prosecution failed to prove that the contract was initially pegged at $130 million and later overpriced at $329 million.
The prosecution also allegedly failed to prove that the ZTE contract at 30 percent coverage in the country was more disadvantageous than the proposal of bidder Amsterdam Holdings Inc. (represented by Jose 鈥淛oey鈥� De Venecia III), whose proposal the prosecution claimed was more advantageous because Amsterdam promised 80 percent at a lesser cost.
Arroyo鈥檚 counsel said the prosecution鈥檚 own witness Engr. Dante Mariaga testified that the ZTE鈥檚 proposal was to cover 100 percent of the country, while De Venecia admitted that Amsterdam鈥檚 proposal covered only the third class municipalities while leaving out the fourth to sixth classes.
She also claimed the project was advantageous to government because the ZTE鈥檚 proposal of $329.48 million or P16.474 billion was payable in 10 years with a grace period of five years at an interest rate of three percent per annum, which means 鈥渢he farther into the future a payment is made, the less costly it is to government.鈥�
Arroyo also said she did not fast-track the approval of the project which she said went through several layers of review before reaching the Neda board.
鈥淭his is a clear case of persecution rather than prosecution,鈥� her motion said.
On her second graft charge, Arroyo said her move to 鈥渕odify鈥� the NBN contract by 鈥渞educing the project cost鈥� 鈥渘egates the charge of 鈥榠nterest鈥� for 鈥榩ersonal gain.'鈥�
According to her motion, Arroyo reduced the project cost to $330 million from $379 million, resulting in $49 million or close to P2 billion in savings for government.
Arroyo鈥檚 cancelation of the project at the height of the controversy in Oct. 2007 also negated interest for personal gain, according to her motion.
鈥淚t was the NEDA Board that unanimously approved the NBN project. Yet, the Ombudsman maliciously singled out President Arroyo for supposedly 鈥榖ecoming interested鈥� 鈥榝or personal gain鈥� in the approval of the NBN project,鈥� her motion said.
As to hastily approving the project, Arroyo said 鈥渉aste in public service is a good thing.鈥� 鈥淯p until now, six years after the term of President Arroyo, our country still has no national broadband network,鈥� her motion said.
On her breach of code of conduct charge, Arroyo said the prosecution failed to prove that ZTE paid for the lunch and golf game with Arroyo.
The prosecution also failed to prove that the value of these alleged solicitation was significant enough for ZTE to gain favors from Arroyo.
鈥淚t 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-million peso project鈥� The value of the lunch eaten by President Arroyo could not have been substantial or significant, even if she had a big appetite,鈥� her motion read.
Opposition
In its opposition on the demurrer, the prosecution maintained that the NBN contract was disadvantageous because its original price of $130 million ballooned to $329 million even though ZTE could only cover 30 percent of the country compared to Amsterdam鈥檚 80 percent coverage.
The prosecution also said Arroyo鈥檚 cancelation of the project 鈥渕erely shows its grossly disadvantageous nature.鈥�
The prosecution added that Arroyo鈥檚 husband even used his influence to force De Venecia III to 鈥渂ack off鈥� from the project and not pursue his proposal even though it is cheaper and more advantageous to government.
Besides the NBN-ZTE charges, Arroyo was detained for plunder over the alleged misuse of P366 million in charity funds for personal gain.
She has since been denied bail and demurrer, and she has elevated her case to the Supreme Court. She is under hospital detention.
READ: Sandigan denies Arroyo move to junk evidence in PCSO plunder case
Abalos had been acquitted in a separate graft case of allegedly brokering the deal with China in exchange for a $130-million commission. IDL/rga