[DOCUMENT]: Bayan Muna motion to upgrade charges vs Rep. Arroyo from graft to plunder

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Republic of the Philippines

OFFICE OF THE OMBUDSMAN
Agham Road, Government Center
North Triangle, Diliman, 1128 Quezon City

 

 

HON. TEDDY CASIÑO, LIZA MAZA

MARIA CAROLINA PAGADUAN-ARAULLO

                                                Complainants,

 

 

            – versus –                                                OMB-C-C-11-0569-I

                                                                          (Criminal Case)

 

GLORIA MACAPAGAL-ARROYO

JOSE MIGUEL T. ARROYO

BENJAMIN ABALOS, SR., and

LEANDRO MENDOZA,

                                             Respondents.

x——————————————————-x

 

 

 

 

 

 

 

 

 

 

COMPLAINANTS
PARTIAL MOTION FOR RECONSIDERATION

_____________________________________

 

 

COMPLAINANTS, through counsels, respectfully move for a reconsideration of this Honorable Office’s Resolution dated 23 December 2011, which was received by Complainants’ counsel on 4 January 2012, and aver:

 

1.         In the 23 December 2011Resolution[1] of this Honorable Office, the following criminal charges against Respondents were dismissed for alleged insufficiency of evidence:

“WHEREFORE, the undersigned panel members respectfully recommend the following:

 

 

4)        That the criminal charge against GLORIA MACAPAGAL ARROYO, JOSE MIGUEL T. ARROYO, BENJAMIN S. ABALOS, Sr., and LEANDRO R. MENDOZA for Plunder be DISMISSED for insufficiency of evidence;

 

5)        That the criminal charges against GLORIA MACAPAGAL ARROYO, JOSE MIGUEL T. ARROYO, and LEANDRO R. MENDOZA for violations of Section 3, pars. (b) and (e) of Republic Act No. 3019 be DISMISSED for insufficiency of evidence;

 

6)        That the criminal charge against JOSE MIGUEL T. ARROYO and LEANDRO R. MENDOZA for violation of Section 7 (d), Republic Act No. 6713 be DISMISSED for insufficiency of evidence;

 

 

  1.             2.         With due respect, the said charges should not be dismissed since there are sufficient evidence to establish the same.

 

PLUNDER (RA 7080)

  1.             3.         In dismissing the plunder case against Respondents, this Honorable Office reasoned out that “the testimonies of the witnesses cannot tend to prove that money changed hands”[2].

 

  1.             4.         Complainants respectfully beg to disagree. The testimony of Dante Madriaga alone clearly establishes the fact that money indeed changed hands during the signing of the NBN-ZTE contract. From the testimony of Madriaga, it clearly appears that he has personal knowledge of the fact that GMA received kickbacks from ZTE DURING the signing of the contract since GMA herself confirmed to him the delivery of the US$30Million, thus:

“…

 

“2.11.12          When asked if Fan Yang of ZTE confirmed to him the remittance or the delivery of the US$30 million after President Arroyo went to Boao, China, Mr. Madriaga said: “After the President went to Boao, about two weeks later bumalik siya, she confirmed at saka nalaman ko rin na… Kagaya nung mga ano naming, lunch. She said hopefully everything will be smooth now because it’s all done.”[3]

 

 

            4.1      Madriaga even explained the reason why Gloria Macapagal Arroyo (GMA) was so interested in going to China and in having the NBN-ZTE contract signed, thus:

“2.11.8.           The Chinese will not give out any more money unless the President of the Philippines would show up during the contract signing, which was the reason why President Arroyo went to Boao, China.[4]

 

 

4.2       Madriaga also knows where the said US$30Million went. According to Madriaga, “the entire US$30 million amount was allocated for the 2007 senatorial and local election”.[5]

 

  1.             5.         The said US$30Million is still different from the US$41Million given to and received by the “Filipino group”, which includes GMA, as “advances” BEFORE the signing of the NBN-ZTE contract. It is the receipt of the said amount of US$41Million by GMA and company, which was relayed by Leo San Miguel to Madriaga, and NOT the receipt by GMA of the US$30Million during the signing of the contract, thus:

“2.11.1            The Filipino group was composed of Chairman Abalos, Mr. Reyes, General De La Torre and Mr. San Miguel. Included also in the Filipino group were President Arroyo and First Gentleman Mike Arroyo. As Mr. Madriaga said: ‘Eh, from the very beginning alam ko na iyan, eh, dahil sinasabi sa akin noong aking mga amo, eh, na protected tayo rito. Walang haharang sa atin.

 

 

“2.11.6            The Filipino group made some advances from ZTE worth US$41 million. It was Mr. San Miguel who informed Mr. Madriaga about these advances.

 

 

 

  1. Assuming arguendo that Madriaga has no personal knowledge regarding the receipt of the US$41Million by GMA and company before the signing of the contract, he certainly has personal knowledge of the fact that GMA received US$30Million from ZTE during the signing of the contract. And US$30Million, when converted to Peso, is equivalent to more than the P50Million amount required under Section 2 of RA 7080.

 

  1.             7.         Clearly, the evidence is sufficient to charge GMA and all the other Respondents in this case with the crime of Plunder.

 

            7.1      Jose Miguel Arroyo, Benjamin Abalos and Leandro Mendoza should also be charged with Plunder because all of them conspired with GMA in having the NBN-ZTE contract signed. All of them had their own respective participation, which contributed and led to the signing of the contract and allowed GMA to receive the US$30Million kickback from ZTE. Thus, they should likewise be charged with Plunder like GMA.

 

  1.             8.         In this regard, the Resolution of this Honorable Office should be RECONSIDERED by charging GMA, Jose Miguel Arroyo, Benjamin Abalos and Leandro Mendoza with the crime of Plunder.

 

  1.             9.         Complainants also strongly urge the Ombudsman panel, as part of its investigation on plunder, to look into other leads, such as by poring over the SALN submitted to the Ombudsman by Gloria Arroyo and the other respondents, and to interview other possible witnesses by issuing subpoenas and other compulsory processes upon them, and not simply rely on the evidence presented by Complainants. In this manner, the Ombudsman panel may acquire other important pieces evidence, aside from the testimony of Madriaga, to further establish the crime of plunder against GMA and the other Respondents herein. In other words, the Ombudsman, being an investigative and prosecutorial body, should take a pro-active role in the investigation of this case, rather than be a mere passive repository of evidence, like the courts, on the obscure ground that like courts, pro-active investigation means partiality.

 

SECTION 3 (b), RA 3019.

 

            10.      Like the Plunder case, the criminal charge for violation of Section 3 (b) of RA 3019 filed by Complainants against GMA and the rest of the herein Respondents was also dismissed due to insufficiency of evidence “to link GMA to the alleged advances or kickback given by ZTE”[6] since according to this Honorable Office, “Madriaga’s claim is not derived from personal knowledge”[7].

 

            11.       However, as heretofore discussed, Madriaga’s claim that GMA received US$30Million from ZTE during the signing of the NBN-ZTE contract is based from his own personal knowledge.

 

            12.      In this regard, the dismissal of this case should also be RECONSIDERED by charging GMA, Jose Miguel Arroyo, Benjamin Abalos and Leandro Mendoza with violation of Section 3 (b) of RA 3019.

 

            13.      Besides, it is not actually necessary to “link GMA to the alleged advances or kickback given by ZTE” since it is already sufficient for Complainants to merely establish that GMA directly or indirectly received any gift or present from ZTE. Section 3 (b) of RA 3019 simply declares:

“(b)      Directly or indirectly requesting or receiving any gift, present, share, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law.

 

 

            13.1    “Gift”, “present” or even “benefit need not always be in the form of “advances” or “kickback”. It may also take another form.

 

            14.      In this case, aside from the fact that GMA received “advances” and “kickback” from ZTE, it is already settled that GMA also received other forms of “gift” or “present” when she accepted an “invitation for a round of golf and lunch with ZTE officials in Shenzhen, China during the pendency of the negotiations towards the consideration of the grant of the ZTE proposal”[8]. This is the reason why this Honorable Office charged GMA with violation of Section 7 (d) of RA 6713.

 

            15.      Thus, by accepting said invitation, GMA and all of herein Respondents, who are all her co-conspirators, should be charged with violation of Section 3 (b) of RA 3019.

 

SECTION 3 (e), RA 3019.

            16.      Complainants agree with this Honorable Office that the parameter of undue injury, as an element of violation of Section 3 (e), RA 3019, is:

            “x x x Unlike in actions for torts, undue injury in Sec. 3 (e) cannot be presumed even after a wrong or a violation of a right has been established. Its existence must be proven as one of the elements of a crime. In fact, the causing of undue injury or the giving of any unwarranted advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence constitutes the very act punished under this section. Thus, it is required that the undue injury be specified, quantified and proven to the point of moral certainty.”[9]

 

 

            17.      In this case, it cannot be said that the government and the Filipino people did not suffer any undue injury arising from the NBN-ZTE contract just because it was cancelled by GMA on 2 October 2007.

 

            17.1    It must be stressed that the National Broadband Network (NBN) project is an endeavor to inter-connect all government offices throughout the Philippines. 

 

            18.      This Honorable Office already correctly found that the NBN-ZTE contract is grossly and manifestly disadvantageous to the government since it was extremely overpriced, thus:

            “The actual cost of ZTE’s proposal for the NBN project was only US$130Million, but was later re-priced to US$262Million, covering only 30% of the country.

 

            On the other hand, AHI’s unsolicited proposal would only cost US$240Million and would cover about 80% of the country.

 

            In fact, from the testimony of the JDVIII and that of Madriaga, it was shown that the contract price should have involved a cost of $130Million only, markedly lower than what was to be the cost indicated in the Contract signed by Mendoza – $329 Million.[10]

 

            18.1    This Honorable Office also correctly held that the ZTE contract is a commercial contract and should not have been entered into without the benefit of a public bidding, thus:

            “7.       The Supply Contract was entered into without the benefit of a public bidding;

 

            The ZTE Contract is not an Executive Agreement but simply a commercial contract, which must comply with the requirements of public bidding. That the ZTE contract was not an executive agreement was, in fact, acknowledged therein by its provisions, which state that in case of dispute, Philippine law shall govern, unlike in Executive Agreements wherein international law shall govern.”[11]

 

 

19.       When GMA gave the NBN contract to ZTE without the benefit of a public bidding, and only to cancel it later on, the government already suffered undue injury since it was unable to implement its project of inter-connecting all government offices throughout the Philippines. Had GMA and the herein Respondents only held a public bidding on the NBN project, then the government could have secured a contract advantageous to it and could have already implemented its project for the benefit of the Filipino people.

 

            20.      The Ombudsman panel should merely pore over government documents proposing and explaining the need for a national broadband network, the amount of public funds that government will save and the efficiency that such project will deliver, and the Ombudsman will have a specific and quantified value of the injury on the government and the people, that can be proven with moral certainty, as a result of the delay in the implementation of the project through respondents criminal actions. The cost of delay is certainly quantifiable. The logic is simple: government embarked on the NBN project because of its specific and quantifiable benefits, including cost benefits and savings, and the said project has not been implemented as a result of the criminal actions of respondents.  Respondents were charged with entering into a contract disadvantageous to the government. Such act is certainly injurious to the government and the Filipino people. And such injuries resulting from the non implementation of the NBN project is not only specific but is also quantifiable and could be proven with moral certainty.

 

21.       More than the above, however, are the direct injuries suffered due to the corruption involved in entering into a contract disadvantageous to the government. Taking alone the proposal of Amsterdam Holdings, Inc. (AHI) into consideration, it is very clear that the government could have secured a better term and a cheaper price for the NBN project, had it only conducted a public bidding. As correctly found by this Honorable Office, the contract price in the ZTE contract signed by Mendoza in behalf of GMA is US$329Million, whereas the unsolicited proposal of AHI would only cost US$240Million or a difference or a difference of US$89Million. The ZTE contract would also cover only 30% of the country, whereas the unsolicited proposal of AHI would already cover about 80% of the country or a huge difference of 50%. Clearly, the undue injury caused to the government due to the illegal acts of GMA and the rest of the herein Respondents could not only be specified but could likewise be quantified and proven to the point of moral certainty.

 

22.       Thus, the Resolution of this Honorable Office should be RECONSIDERED by charging GMA, Jose Miguel Arroyo, Benjamin Abalos and Leandro Mendoza with violation of Section 3 (e) of RA 3019 before the Sandiganbayan.

 

SECTION 7 (d), RA NO. 6713

23.      Abalos admitted during the Senate investigation that ZTE officials requested him to arrange them a meeting with Secretary Mendoza at the Wack Wack Golf and Country Club (“Wack Wack” for brevity) and since he is a member of that club, he agreed to the ZTE officials’ request by sponsoring and hosting the dinner meeting.[12]

 

24.      During the Senate investigation on 20 September 2007, then Secretary of Finance, Margarito Teves, confirmed the admission of Abalos about the dinner meeting at Wack Wack and even admitted that “What I did recall was my meeting with Chairman Abalos and Secretary Mendoza in Wack Wack” and “that’s what I did recall that the meeting was on Broadband.[13]

 

            25.      Based from the foregoing, it is clear that the dinner meeting attended by Mendoza was actually sponsored and held by ZTE officials, through Abalos, who readily accommodated the request of the ZTE officials by actually arranging the said meeting. By accepting the invitation of the ZTE officials and actually attending the dinner meeting sponsored by them, Mendoza should be charged with Section 7 (d) of RA No. 6713. If GMA was correctly charged by this Honorable Office with the said offense for accepting an “invitation for a round of golf and lunch with ZTE officials in Shenzhen, China”[14], there is no reason why Mendoza should not also be charged with said offense for accepting the invitation of ZTE officials to have a dinner meeting at Wack Wack.

 

PRAYER

            WHEREFORE, premises considered, Complainants respectfully pray that the Resolution of this Honorable Office dated 23 December 2011 should be RECONSIDERED by:

a.         Charging Respondents Gloria Arroyo, Jose Miguel Arroyo, Benjamin Abalos and Leandro Mendoza with the crime of Plunder.

 

            b.         Charging GMA, Jose Miguel Arroyo, Benjamin Abalos and Leandro Mendoza with violation of Section 3 (b) and (e) of RA 3019.

 

            c.         Charging Leandro Mendoza with violation of Section 7 (d) of RA No. 6713.

           

            Complainants further pray for such other relief, which may be just and equitable in the premises.

 

 

EVANGELISTA AND MAGUIGAD LAW OFFICE

Counsel for Complainants

1079-A Leyte St., Sampaloc, Manila

 

 

                        By:

 

ATTY. JOVENCIO H. EVANGELISTA

Mobile No. 0917-4506901

email: evangelista_law@yahoo.com

PTR No. 9349854; 01.25.11; Manila

IBP No. 798351; 02.23.11; Manila

MCLE Compliance No. III-0013245

Attorney’s Roll No. 42797

 

 

                        And

 

ATTY. VANESSA QUIAMBAO MAGUIGAD

Mobile No. 0906-3288104

email: anet_maguigad@yahoo.com

IBP No. 798352, 01-23-11, Manila Chapter III

PTR No. 9349853, 01-25-11, Manila

Attorney’s Roll No. 58291, 05-04-10

 

 

 

Copy furnished:

 

GLORIA MACAPAGAL ARROYO                                 Reg. Receipt No. _______________

House of Representatives                                             Date _________________________

Batasan, Quezon City                                                  Place ________________________

 

 

 

 

JOSE MIGUEL T. ARROYO                                         Reg. Receipt No. _______________

8th Floor, LTA Bldg., Perea St.                                      Date _________________________

Salcedo Village, Makati City                                       Place ________________________

 

 

 

 

BENJAMIN S. ABALOS, SR.                                       Reg. Receipt No. _______________

No. 19 Kanlaon St.                                                      Date _________________________

Brgy. Highway Hills, Mandaluyong City                                    Place ________________________

 

 

 

 

LEANDRO R. MENDOZA                                             Reg. Receipt No. _______________

Lot 19 JP Marcelo St., BF Homes                                Date _________________________

Paranaque City                                                                        Place ________________________

 

 

 

 

VILLEAREAL ROSACIA DINO AND PATAG                  Reg. Receipt No. _______________
Counsel for Respondent Abalos                                              Date _________________________
Ground Floor ECJ Building                                          Place ________________________
Real corner Arzobispo Streets
Intramuros Manila

 

 

 

POBLADOR BAUTISTA AND REYES                            Reg. Receipt No. _______________
Counsel for Respondent Mendoza                               Date _________________________
5th Floor, SEDCCO I Building                                       Place ________________________
120 RadacorLegaspi Streets
Legaspi Village, Makati City

 

 

 

 

ESTELITO P. MENDOZA                                              Reg. Receipt No. _______________
Counsel for Respondent Gloria Arroyo                                    Date _________________________

and Jose Miguel Arroyo                                                           Place ________________________
4th Floor, Dynavision Building
108 Rada Street, Legaspi Village
Makati City

 

 

 

 

 

EXPLANATION: COPY OF THIS MOTION WAS SERVED TO THE ADVERSE PARTIES THROUGH REGISTERED MAIL DUE TO UNAVAILABILITY OF MESSENGERIAL PERSONNEL TO EFFECT PERSONAL SERVICE.

 

 

 

 

                                                                        ATTY. JOVENCIO H. EVANGELISTA



[1] Please see the dispositive portion of Resolution.

[2] Please see p. 24, Resolution.

[3] Page 71, ibid

[4] Page 70, ibid

[5] ibid

[6] Please see p. 26, Resolution.

[7] Ibid.

[8] Please see p. 40, Resolution.

[9] Please see pp. 27-28 of Resolution, citing the case of Llorente, Jr. vs. Sandiganbayan (G.R. No. 122166, March 11, 1998, 287 SCRA 382).

[10] Please see p. 34, Resolution.

[11] Please see p. 30, Resolution.

[12] Please see p. 39, Senate Committee Report No. 743, which was attached as Annex “D” of the Complaint. Please see also the allegations in par. 26.1, Complaint.

[13] Please see p. 40, Senate Committee Report No. 743. Please see also the allegations in par. 26.2, Complaint.

[14] Please see p. 40, Resolution.