SC rules NBN-ZTE issue moot and academic after contract cancelled

MANILA, Philippines – The Supreme Court yesterday denied three petitions seeking to stop the implementation of the controversial $329-million national broadband network (NBN) deal with Chinese firm ZTE Corp., saying the issue has become “moot and academic” with the cancellation of the contract.

In an 18-page resolution penned by Associate Justice Ruben Reyes, the SC ruled that even if it will choose to disregard mootness, the Court cannot rule on the merits of the case as the resolutions of the three petitions involve the settling of factual issues that requires the reception of evidence.

The Court ruled on the petitions filed by Iloilo Vice Gov. Rolex Suplico, Amsterdam Holdings Inc., and the Lawyers and Advocates for Accountability, Transparency, Integrity and Good Governance (LATIGO).

“There is not an iota of doubt that this may not be done by this Court in the first instance, as has been stated often enough, this Court is not a trier of facts,” said the Court.

The Court said ZTE, in its comment, “correctly pointed out” that since Suplico filed his petition directly with the Court, without prior factual findings made by any lower court, a determination of pertinent and relevant facts is needed.

While declining to comment on the ruling before it has received a copy, Malacañang emphasized that whatever decision is handed down by the SC, all parties concerned must respect it.

Press Secretary Jesus Dureza noted that the petitioner could still appeal the ruling and so the executive would wait until the ruling becomes final and executory before making any further comments.

“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,” Dureza said.

“Everyone, most especially Vice Gov. Rolex Suplico, must perforce submit to it. In the meantime, it is best that we wait for the ruling to become final and executory,” he added.

The Court also ruled that it would be “simply impossible” for it to annul and set aside the award of the national broadband deal to ZTE without evidence to support a prior factual finding pointing to any violation of law that could lead to such an annulment order.

In his petition, Suplico prayed that the Court order the National Economic and Development Authority (NEDA), the Department of Transportation and Communications (DOTC), the Commission on Information and Communications Technology, the Telecommunications Office, and the Bids and Awards For Information and Communications Technology to comply with the pertinent provisions of the law regarding procurement of government information and communications technology contracts and public bidding for the NBN contract.

But the SC ruled that it would be presumptuous on its part to summarily compel the public respondents to comply with pertinent provisions of law regarding the 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.”

“For the Court to do so would amount to a breach of the norms of comity among co-equal branches of government. 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,” the Court said.

The Court stressed that the hearings conducted by the Senate on the ZTE deal cannot be used as basis for its decision, which requires a “judicial finding of facts.”

In dismissing the three petitions, the SC ordered that the Sept. 11, 2007 temporary restraining order it had issued on the ZTE project be dissolved.

Justices Antonio Carpio, Ma. Alicia Austria-Martinez and Conchita Carpio-Morales meanwhile expressed dissenting opinions on the resolution.

In his 31-page dissenting opinion, Carpio said the ZTE contract is 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.

In his 129-page mandamus petition with prayer for the issuance of a temporary restraining order filed last Aug. 1, Suplico also asked the SC to stop the government from implementing the project on the grounds that it is in violation of the Constitution, the Government Procurement Act, the Build-Operate-Transfer law and the Telecoms Policy Act.

Last Sept. 11, the Court granted Suplico’s prayer for the issuance of a TRO on the ZTE-NBN project.        – With Marvin Sy