Mike Arroyo seeks dismissal of graft case

MANILA, Philippines – Former First Gentleman Jose Miguel Arroyo has filed a motion for reconsideration before the Office of the Ombudsman seeking reversal of a resolution issued on December 23, 2011 charging him with one count of graft on allegations of having conspired with his wife, former President Gloria Macapagal-Arroyo and other Cabinet officials in the scrapped US$329 million national broadband network deal.

In his 48-page motion filed on January 10 through lawyers Edna Herrera-Batacan and Mark Anthony Bayquen, Mr. Arroyo said the indictment has no basis on the grounds that the NBN-ZTE deal was scrapped before any criminal complaint was filed; that he was not a government official; the project was a government-to-government undertaking; former Ombudsman Ma. Merceditas Gutierrez has previously cleared him of any liability; and the dismissal of the case in 2009 has become final.

He cited the case of Duterte vs. Sandiganbayan (1998) wherein the Supreme Court junked the graft charge against the accused because the supposed unlawful contract was rescinded prior to the filing of a criminal complaint before the Ombudsman.

The SC decision was penned by former Associate Justice Santiago M. Kapunan with Chief Justice Andres R. Narvasa and Associate Justices Flerida Ruth P. Romero and Fidel P. Purisima concurring.

The Duterte case involved an alleged violation of Section 3(g) of RA 3019 or  the Anti-Graft and Corrupt Practices Act, the same case that was filed against the Arroyos, former Commission on Elections chairman Benjamin Abalos Sr. and former Transportation Secretary Leandro Mendoza.

“The above pronouncement of the Supreme Court interpreting the elements of a violation of Section 3(g), R.A. 3019 had become part of the legal system of the land and is therefore binding upon this Honorable Office, until reversed or set aside by the Supreme Court in a subsequent case,” the defense argued.

Likewise, Mr. Arroyo pointed out that the Supreme Court has also declared that no private individual may be charged with the particular offense of Section 3(g) of RA 3019 because the crime exclusively mentions the involvement of public officials.

He said this was the SC pronouncement in the case of Henry Go vs. Sandiganbayan (2009) where the ruling was penned by Associate Justice Consuelo Ynares-Santiago with which Associate Justices Ma. Alicia Austria-Martinez, Minita Chico-Nazario, Presbitero J. Velasco Jr. and Arturo D. Brion concurred.

“Section 3(g) of RA 3019, by its text, cannot be extended or even enlarged by implication or intendment to bring within its limited scope private persons. The said provision of law punishes only public officers. As a private person, respondent Jose Miguel Arroyo could not enter into a contract ‘on behalf of the government’,” Arroyo’s lawyers explained.

They said under the same ruling of the SC, a private person can only be held liable if he acted in conspiracy with public officers.

However, the defense claimed this particular rule does not apply to Mr. Arroyo because he was not a party to the NBN-ZTE contract which was a negotiation between the Philippine and Chinese governments.

“The application therefore of Section 3(g) to private individuals in conspiracy with public officers under present jurisprudence is limited ONLY to a private person who is a contracting party or a representative of a contracting party. Respondent Jose Miguel Arroyo is neither a contracting party nor a representative of one,” the defense said.

While Mr. Arroyo admitted to his presence in China during a negotiation for the NBN deal, he said it was merely in fulfilling of his position as Presidential spouse.

“It must be clarified that there were no ZTE officials in the golf game that respondent Jose Miguel Arroyo played with (former House Speaker) Joe De Venecia, Abalos and President Gloria Macapagal-Arroyo. There were only four of them who played golf and nobody from ZTE.  His presence at the luncheon was a marital function of the First Gentlemen to be supportive of his wife,” he added. – Rappler.com