Monday, July 14, 2008

SC rules ZTE suits moot; Dissenting justices warn of deal resurrection

SC rules ZTE suits moot; Dissenting justices warn of deal resurrection

By Benjamin B. Pulta

Daily Tribune 07/15/2008

Act of executive department, the Court must take judicial notice of such official act without need of evidence, the Court said.

The Court explained that under Section 1, Rule 129 of the Rules of Court, it is mandatory for the Court to take judicial notice of the official acts of the President of the Philippines without instruction of evidence.

Pontificating on issues which no longer legitimately constitute an actual case or controversy will do more harm than good to the nation as a whole. Wise exercise of judicial discretion militates against resolving the academic issues, as petitioners want this court to do, the SC added.

The Court is...constrained to dismiss the petitions and deny them due course because of mootness and because their resolution requires reception of evidence which cannot be done in an original petition brought before the Supreme Court.

The tribunal's majority ruling also said, it would be too presumptuous on the part of the Court to summarily compel public respondents to comply with the pertinent provisions of law regarding procurement of government infrastructure projects without any factual basis,

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

Of the 11 magistrates who sided with the majority ruling for the mootness of the ZTE-NBN deal, Justice Minita Chico Nazario was on leave.

Three justices dissented, while the at least three justices issued separate but concurring opinions, among whom are Chief Justice Reynato Puno, Senior Associate Justice Adolf Azcuna and now retired associate justice Consuelo Ynares.

In a 31page dissenting opinion by Associate Justice Antonio Carpio, the justice insisted that the ZTE deal is void and that it is capable of being repeated.

Justice Azcuna, who voted with the majority said: I find the points raised by Justice Carpio...arguably sound, correct and almost unassailable as an abstract treatise in law. Nevertheless, I am of the view that the desistance from the agreement in question renders the matter academic and moot, leaving no actual controversy calling for the exercise of judicial power.

Two justices, Alicia Austria-Martinez, and Conchita Carpio-Morales joined Carpio's dissent.

Carpio claimed the 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. and that as such, the ZTE supply contract is legally non-existent.

He also said the Philippine government's decision not to continue with the ZTE project during the pendency of this case,even if deemed a cancellation of the ZTE supply contract , had no legal effect on the status of the contract, and did not moot the petition since not only are the legal issues in the case capable of repetition yet evading review, the ZTE supply contract is itself capable of being resurrected.

It is time to put an end to government procurement contracts amounting to tens of billions of pesos,exceeding even the annual budget of the judiciary,that are awarded and signed without an appropriation from Congress , and without the required public bidding.

This court must categorically declare the ZTE Supply Contract void from the beginning. the dissent pointed out.

Carpio stressed that the ZTE supply contract is not funded by an appropriation law and does not have a certificate of appropriation and fund availability but that it is not only void, but also void from the beginning under the Civil Code.

The magistrate also pointed out that even as the funding for the ZTE supply contract will come from a foreign loan, this does not negate the rationale for public bidding since Filipino taxpayers will still pay for the loan with interest.

He also underscored the need to safeguard public interest against anomalies existing in all government procurement contracts, regardless of the source of funding. Public bidding is the most effective means to prevent anomalies in the award of government contracts.

Public bidding promotes transparency and honesty in the expenditure of public funds. he said.

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