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(Update) Abalos, Neri to face graft raps for NBN-ZTE

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by Carmela Fonbuena, abs-cbnNEWS.com/Newsbreak | 08/27/2009 9:09 PM

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MANILA - The Office of the Ombudsman has recommended that graft charges be filed against former Commission on Elections (Comelec) Chairman Benjamin Abalos Sr. and former National Economic and Development Authority (NEDA) director-general Romulo Neri for the botched US$329 million National Broadband Network (NBN) project with Chinese firm, ZTE.
 
“The Office of the Ombudsman found probable cause to file criminal charges against Abalos and Romulo Neri for violation of the Revised Penal Code and the Anti-Graft and Corrupt Practices Act,” Akbayan Rep. Risa Hontiveros said in a phone interview.
 
Hontiveros is one of the complainants in the consolidated case against several public officials and private individuals involved in the project, which was intended to link all government offices nationwide through a telecommunications backbone.

In its resolution, the Ombudsman said: “Abalos directly demonstrated his pecuniary interest in the business transaction between the Government and that of ZTE Corporation. Fully knowing that the stamp of approval of the National Economic Development Authority was needed to put an official imprimatur on the project, he actively brokered conferences between the ZTE, NEDA director-general and Amsterdam Holdings." 

“In this case, clear and convincing testimony was given by Romulo L. Neri that a bribe offer was made to him by Abalos. Nothing can be more crystal clear than this,” the Ombudsman said.

“It is without a scintilla of doubt that the actions of respondent Benjamin Abalos, a former chairman of the Comelec, are highly suspect, reprehensible and should in no manner or measure be countenanced by those in the public service,” the resolution said.

Recommendations

The Ombudsman recommended the following:

• information for violation of bribery under Article 212 of the Revised Penal Code be filed against Abalos with the Metropolitan Trial Court of Mandaluyong City.

(Art. 212. Corruption of public officials. - The same penalties imposed upon the officer corrupted, except those of disqualification and suspension, shall be imposed upon any person who shall have made the offers or promises or given the gifts or presents as described in the preceding articles); 

• another information for violation of Section 3(h) of Republic Act 3019 be filed against Abalos before the Sandiganbayan.

(RA 3019 is the Anti-Graft and Corrupt Practices Act. Section 3 lists the corrupt practices of public officers. 3(h) states: Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest.);

• an information for violation of Section 3(h) of RA 3019 be filed against Neri before the Sandiganbayan.

Neri, currently the president of the Social Security System (SSS), had testified at a Senate hearing that Abalos offered him a bribe by saying: "Sec, may 200 ka dito (Secretary, you have P200 million here)."

Rodolfo 'Jun' Lozada, Neri's adviser on the telecommunications project, also backed allegations of overpricing and kickbacks for Abalos and other individuals.

Hontiveros said she will ask the Ombudsman to place Neri under preventive suspension.

In a telephone interview with ABS-CBN News, Neri declined to comment on the decision. He said he first wants to get a copy and read the resolution of the Ombudsman.

First Gentleman, ZTE cleared

The Omudsman likewise recommended that criminal complaints against First Gentleman Jose Miguel Arroyo, former House Speaker Jose de Venecia, Transportation and Communications Secretary Leandro Mendoza, DOTC senior officials Lorenzo Formoso and Elmer Soneja be dismissed for lack of probable cause.

The ZTE officials involved in the aborted project--Yu Yong, George Zhuying, Fan Yan, Hou Wei Gui--were also absolved.

The Ombudsman's criminal information still has to be filed before the anti-graft court, Sandiganbayan.

Hontiveros said she received the 144-page decision of the Ombudsman on Thursday afternoon.
 
Hontiveros lamented that the Ombudsman chose to dismiss the raps against the First Gentleman.
 
The Ombudsman said First Gentleman was not included since the contract between the government and ZTE Corp. had been scrapped.

“I welcome the decision but why was the First Gentleman absolved simply for 'lack of signed contract',” she said.

“We will seek a clarification from the Office of the Ombudsman why was the First Gentleman was cleared of any criminal liability when he figured prominently in various testimonies before the Senate investigation,” she said.

She also vowed to closely monitor the trial to ensure that the case will not be dismissed on flimsy and technical grounds.

"Back-off"

Witness Jose De Venecia III, a losing bidder in the NBN project, had testified that Mr. Arroyo told him to "back off" from the deal. He said the project was overpriced by at least $130-million to allow kickbacks to Abalos and senior government officials.
 
The NBN-ZTE deal was initially agreed upon in April 2007, but President Arroyo opted to cancel it in September 2007.

“If they were not caught red-handed, they would have signed it,” Hontiveros said.
 
The 144-page decision was signed by Deputy Ombudsman Orlando Casimiro, who headed the five-man panel created by Ombudsman Merceditas Gutierrez.

Gutierrez, a former presidential legal counsel and Ateneo law school batchmate of the First Gentleman, inhibited herself from the investigation.
 
“We learned that Malacañang is trying to hold the decision,” Hontiveros claimed.

Abalos the fall guy?

In response, Joey de Venecia III said he was "both happy and sad" at the resolution of the Ombudsman.

"There is no question in my mind that Mr. Abalos is guilty. Unfortunately, the Omudsman found nothing wrong in the role played by an even more powerful person - First Gentleman Mike Arroyo. No doubt, Mr. Arroyo shares in Mr. Abalos's guilt," he said.

De Venecia III said "the public is well aware of the close relationship between Mr. Arroyo and Ombudsman Merceditas Gutierrez. It is he who pushed for her appointment, which his wife, the president, obliged," de Venecia said.

"With Ms. Gutierrez presently facing impeachment proceedings, I am not alone in suspecting that she has been remiss in the performance of her duties, particularly whenever any member of the First Family is implicated in wrongdoing."

He said the Ombudsman's decision "all but makes Mr. Abalos a fall guy."

"While he is guilty and should be made to pay the price of his indiscretion, exempting Mike Arroyo should be considered a huge travesty of justice. I ask that an Ombudsman who does not carry the political baggage and debt of gratitude of Ms. Guiterrez review the role palyed by Mr. Arroyo in the aborted NBN-ZTE deal," de Venecia added.

Decision 'a whitewash'

Meanwhile, one of the complainants called the decision of the Ombudsman a "whitewash."

"The decision of the Ombudsman absolving the First Gentleman, Atty. Mike Arroyo, from the charges against him is not at all surprising.  The Ombudsman merely lived up to her reputation of turning a blind eye on misdoings of high officials and their relatives and prominent personalities," said lawyer Ernesto Francisco Jr..
 
Francisco said he had hoped that Ombudsman Merceditas Gutierrez would be able to "perform her constitutional mandate and trust her conscience and those of her staff and remain hopeful that this time, they would ferret out the truth and really charge all of those
culpable."

But with the Ombudsman's recommendation to dismiss the complaint against Mr. Arroyo, Francisco said he was "mistaken." 

"The Filipino people cannot trust the Ombudsman. The Ombudsman has once again turned her back on her constitutional mandate that '(i)n all cases of conspiracy between an officer or employee of the government and a private person, the Ombudsman and his deputies shall have jurisdiction to include such private person in the investigation and proceed against such private person as the evidence may warrant. The officer or employee and the private person shall be tried jointly and shall be subject to the same penalties and liabilities,” he said.   

'Impeach Gutierrez'

With its ruling, Francisco said "the incumbent Ombudsman cannot be trusted with ferreting out the truth in the so many unresolved anomalies besetting our country."

"If she [Gutierrez] survives the present impeachment proceeding against her [in Congress], which is very much likely to happen, the Ombudsman should once again be impeached after the Arroyos have stepped out of Malacañang," Francisco said. "Her impeachment and the replacement of officials of her office should be one of the primary tasks of the new administration." 

He added that the "Ombudsman and the officials around her are responsible for the fact that graft and corruption have remained unabated in our country and have even escalated over the years."

Francisco said he had "already pointed out signs of a whitewash when the Panel of Investigators strongly resisted my initial effort to have the testimonies of NBN-ZTE witnesses Jose De Venecia III, Jarius Bondoc, Engr. Rodolfo “Jun” Lozada and Engr. Dante Madriaga given before the Senate included in the Ombudsman’s investigation and to summon the said witnesses so that they could affirm their testimonies and so that the said testimonies could be used against the respondents, including Arroyo."