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By William B. Depasupil, Reporter
The Supreme Court on Monday
junked three petitions questioning the validity of the controversial
$330-million National Broadband Network (NBN) project that the
Philippine government had awarded to China’s ZTE Corp.
The High Tribunal, voting 11-3,
said the issue became moot and academic when President Gloria Arroyo
decided to scrap the project during her visit to China in October
2007.
Malacañang muted its reaction to
the rejection of the petitions.
Press Secretary Jesus Dureza said
the political opposition must accept the High Court ruling although
the Court still has to rule with finality on the three petitions.
“The Supreme Court is the final
arbiter. All issues brought before it for adjudication are ruled
upon with finality. It is the court of last resort. Everyone, most
especially [Iloilo] Vice Gov. Rolex Suplico, must perforce submit to
[the ruling]. In the meantime, it is best that we wait for the
ruling to become final and executory,” Dureza said in a statement.
Suplico is a member of the opposition bloc.
The petitions were G.R. No.
178830, filed by Suplico; G.R. No. 179317, filed by Amsterdam
Holdings Inc. and Nathaniel Sauz; and G.R. No.179613, filed by
Galeleo P. Angeles, Vicente C. Angeles, Job Florante L. Castillo,
Trini Anne G. Nieva, Roy Allan T. Arellano, Carlo Magno M. Reonal,
Ethel B. Regadio, Raenan B. Malig and Vinalyn M. Potot, together
with the non-government Lawyers and Advocates for Accountability,
Transparency, Integrity and Good Governance.
In G.R. No. 178830, the
petitioner sought to annul and set aside the award of the broadband
deal and compel the respondents to comply with pertinent provisions
of law on procurement of government contracts involving computer
technology and on public bidding for the broadband project.
In G.R. No. 179613, the
petitioners asked the High Tribunal to also annul and set aside the
award of the contract to respondent ZTE Corp. They said the contract
and procedures that had led to signing of the deal violated the
Constitution, the law and public policy. The petitioners also asked
the Tribunal to compel the respondent to also comply with pertinent
provisions of law on procurement of government infrastructure
projects, including public bidding for the broadband project.
Complaints moot
The Supreme Court was
“constrained to dismiss the petitions and deny them due course
because of mootness and because their resolution requires reception
of evidence which cannot be done in an original petition” brought
before it, the 18-page ruling penned by Associate Justice Ruben
Reyes said.
“It would be too presumptuous
on the part of the Court 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 very particular violations committed by
specific government officials of the executive branch,” Reyes
added.
Compelling the respondents to do
so would amount to breaching the norms of comity among co-equal
branches of government, the ruling said.
“A perceived error cannot be
corrected by committing another error. Without proper evidence, the
Court cannot just presume that the executive did not comply with
procurement laws. Should the Court allow itself to fall into this
trap, it would plainly commit grave error itself,” it added.
Dissenting opinion
A 31-page dissenting opinion by
Associate Justice Antonio Carpio, however, insisted that the
National Broadband Network deal was void and that it could be
repeated.
Justices Ma. Alicia
Austria-Martinez and Conchita Carpio-Morales also dissented.
Carpio said the contract was
“void 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 added
that “as such, the ZTE Corp. supply contract is legally
non-existent.”
Carpio said the Philippine
government’s decision to discontinue with the broadband project
during the pendency of the case, even if deemed a cancellation of
the supply contract, had no legal effect on the status of the
contract and did not invalidate the petitions since “not only are
the legal issues in the case capable of repetition, yet evading
review the ZTE Corp. supply contract is itself capable of being
resurrected.”
He called for “an end to
government procurement contracts amounting to tens of billions of
pesos, exceeding even the annual budget of the judiciary, that are
awarded and signed without an appropriation from Congress, and
without the required public bidding.”
Carpio said the Supreme Court
“must categorically declare the supply contract void from the
beginning.”
He pointed out that since the ZTE
Corp. supply contract was not funded by an appropriation law and
lacked a certificate of appropriation and fund availability, it was
not only void but also void from the beginning under the Civil Code.
Carpio said a foreign loan
funding the supply contract does not negate the rationale for public
bidding since Filipino taxpayers will still pay for the loan with
interest.
He stressed the need to safeguard
public interest against anomalies existing in all government
procurement contracts, regardless of the source of funding.
Public bidding is the most
effective means to prevent anomalies in the award of government
contracts, Carpio said. “Public bidding promotes transparency and
honesty in the expenditure of public funds,” he added.
With Angelo S. Samonte
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