SC Affirms Acquittal of Abalos of Graft over NBN-ZTE Deal

November 16, 2021

The Supreme Court has affirmed the Sandiganbayan’s acquittal of former Commission on Elections (COMELEC) Chair Benjamin Abalos from graft charges, for allegedly brokering for a fee the award of the government’s  National Broadband Network Project (NBN Project) in favor of the Chinese firm Zhing Xing Telecommunications Equipment, Inc. (ZTE) in 2016.

In a Decision penned by Justice Alfredo Benjamin S. Caguioa, the Court’s First Division dismissed for lack of merit the Petition for Certiorari under Rule 65 filed by the prosecution assailing the Sandiganbayan Decision dated May 11, 2016 which acquitted Abalos of the charge of violation of Section 3(h) of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act, and its Resolution dated September 29, 2016 which denied its subsequent Motion for Reconsideration.

The Court held that the assailed Sandiganbayan rulings cannot be reversed without placing Abalos in double jeopardy.

The requirements for double jeopardy to exist are as follows: (1) a valid information sufficient in form and substance to sustain a conviction of the crime charged; and (2) a court of competent jurisdiction; (3) the accused has been arraigned and has pleaded; and (4) the accused was convicted or acquitted or the case was dismissed without his express consent. The case at hand meets all the foregoing requirement.

The existence of double jeopardy in this case calls for the application of the “finality-of-acquittal” rule, which, as the name implies, makes a judgment of acquittal unappealable and immediately executory upon its promulgation.

The Court ruled that the Sandiganbayan committed no grave abuse of discretion. It stressed that in the conduct of trial, the petitioner, through the prosecution, was able to present and formally offer evidence in support of its case. The anti-graft court noted, evaluated, and considered each and every piece of evidence, and the Assailed Decision painstakingly discussed the same before making conclusions which are far from being offensive to reason or logic.

“There being no grave abuse of discretion by the Sandiganbayan and no violation of petitioner’s right to due process, the Court must uphold Abalos’ acquittal, lest he be unjustly subjected to double jeopardy,” the Court held.

The Court also held that certiorari is not the proper remedy to correct errors of judgment. The Court held that what were being raised before the SC were not errors of jurisdiction, but alleged errors of judgment by the Sandiganbayan. Errors of judgment are not correctible by certiorari since these are not of such magnitude as to effectively deprive the Sandiganbayan of jurisdiction to try the case before it.

The case involves the Contract for the Supply of Equipment and Service for the NBN Project between the Government of the Republic, through the Department of Transportation and Communications (DOTC), and ZTE.

During the material period alleged in the Information, Abalos was a public officer, being then the Chair of the COMELEC.

In 2006, ZTE proposed the NBN project, which would be a government undertaking under a tied loan to be extended by the Chinese government to the Philippine Government to finance the contract with ZTE. The ZTE proposal was later on endorsed by the DOTC to the National Economic and Development Authority (NEDA) of which former Secretary Romulo L. Neri was the Director General. In a separate Decision (https://sc.judiciary.gov.ph/22235/), the Court’s Third Division ordered the dismissal from service of Neri, with accessory penalties including his perpetual disqualification from reemployment in the government service, for his participation in the NBN-ZTE deal.

Amsterdam Holdings, Inc. (AHI) also submitted a proposal to DOTC of its version of the NBN project which was a private investment under the Build- Operate-Transfer framework. The NBN Project was eventually awarded to ZTE. On April 21, 2007, the contract was executed between the DOTC and ZTE.

As alleged by the prosecution, Abalos, for a fee or commission, brokered in favor of ZTE for the implementation of the NBN Project; hence, he directly or indirectly had financial or pecuniary interest in such despite being prohibited from doing so by the Constitution. The prosecution presented evidence which tended to establish that Abalos attended meetings where the NBI Project was discussed.

For his defense, Abalos testified that he met some officials of ZTE sometime in April or May 2006, who requested that he introduce them to then DOTC Sec. Margarito Teves. He claimed that ZTE wanted to propose an economic project for Mindanao — the conversion of the land from Compostela Valley to Butuan into an agricultural land for a corn plantation, and the putting up of a corn mill.

In its assailed Decision dated May 11, 2016, the Sandiganbayan’s Fourth Division found that the prosecution’s evidence was only able to prove that Abalos was brokering the collaboration between AHI and ZTE, but not that he brokered the contract between ZTE and the Philippine Government for a fee. The Sandiganbayan said that while Abalos’ presence at meetings with officers from ZTE and the government was established, the evidence on what was taken up during the said meetings was “minimal or sketchy” and it refused to rely on such evidence to conclude that Abalos asked for favors from government officials as regards the contract between the government and ZTE.

The government then filed a Motion for Reconsideration but the same was denied by the Sandiganbayan Special Fourth Division. (G.R. No. 228281, People v. Sandiganbayan and Abalos, June 14, 2021)

FULL TEXT: https://sc.judiciary.gov.ph/22287/