VOTING 11-3, the Supreme Court dismissed for being moot three consolidated petitions seeking to declare null and void the contract for the $330-million national broadband network (NBN) project of the government with China’s ZTE Co.

Associate Justice Ruben Reyes said the Court en banc had considered that, owing to the aborting of the project by President Arroyo, it granted the motion of the Solicitor General for the dismissal of the petitions.

Associate Justice Antonio Carpio dissented, arguing that the decision of the government to abandon the NBN-ZTE project has not rendered the petitions moot for several reasons.

The Court did not give credence to the claim of petitioners that declarations made by the officials of the Executive department on the decision to scrap the project “are self-serving, thus, inadmissible.”

“Since we consider the act of cancellation by President Arroyo of the proposed ZTE-NBN Project…with Chinese President Hu Jintao of China as an official act of the Executive department, the Court must take judicial notice of such official act without the need of evidence.” 

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.

“When President Gloria Macapagal-Arroyo, acting in her official capacity during the meeting held on October 2, 2007, in China, informed China’s President Hu Jintao that the Philippine government had decided not to continue with the ZTE-National Broadband Network Project due to several reasons and constraints, there is no doubt that all the other principal prayers in the three petitions [to annul, set aside and enjoin the implementation of the ZTE-NBN Project] had also become moot.” 

The dismissed petitions were filed by Vice Gov. Rolex Suplico of Iloilo, Amsterdam Holdings Inc. (AHI) and Nathaniel Sauz of the Lawyers and Advocates for Accountability, Transparency, Integrity and Good Governance.

Malacañang is reserving comment on the decision until the judgment is rendered final and executory, Press Secretary Jesus Dureza said on Monday.

He noted that “the parties can still pursue remedies available so it is best to wait  for the moment.” He added that Malacañang has yet to obtain a copy of the ruling.

Besides being moot, the SC said it cannot rule on the petitions since it would warrant the examination of facts and evidence—something it will not do since it is not a trier of facts, which is specifically within the jurisdiction of the trial courts.

Furthermore, the High Tribunal noted that “it would be too presumptuous on the part of the Court to summarily compel the respondents to comply with the provisions with regard to procurement of government infrastructure projects without prior determination of the particular violations committed by specific government officials.”

In its petition, AHI sought full access to all agreements entered into by the respondents involving the NBN project pursuant to Article 8, Section 5 (1) of the Constitution with its president, Sauz, insisting that under the Constitution, the people have the right to seek information involving government projects such as the NBN.

Suplico also asked the SC to scrap the government’s deal with China’s ZTE Co. for being unconstitutional; and petitioned for a writ of mandamus directing respondents to produce all documents pertaining to the NBN so the public would know the actual terms and conditions of the agreement.

In his dissenting opinion, Justice Antonio Carpio argued the government’s decision to abandon the NBN-ZTE project has not rendered the petitions moot, maintaining that the Court should decide on the legal issues raised by the petitions because the ZTE supply contract “itself is capable of being resurrected”—not having manifested to the Court that it (ZTE) agrees with the cancellation of the project.

“This case is of transcendental importance to the nation since it involves the constitutionality of a $329.48-million government procurement contract awarded and signed without an appropriation from Congress and without public bidding….The Court has duty to resolve the important issues in this case, including the novel question on the status of executive agreements that conflict with national law, to prevent a recurrence of government contracts that violate the Constitution and existing statutes,” said Carpio. (With Mia Gonzalez)

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SC dismisses petitions to void NBN deal

VOTING 11-3, the Supreme Court dismissed for being moot three consolidated petitions seeking to declare null and void the contract for the $330-million national broadband network (NBN) project of the government with China’s ZTE Co.

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