G.R. NO.

178830 : July 14, 2008]

ROLEX SUPLICO, Petitioner, v. NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY, represented by NEDA

SECRETARY ROMULO L. NERI, and the NEDA-INVESTMENT COORDINATION COMMITTEE, DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS (DOTC), represented by DOTC SECRETARY LEANDRO MENDOZA, including
the COMMISSION ON INFORMATION AND COMMUNICATIONS TECHNOLOGY, headed by its Chairman, RAMON P. SALES,
THE TELECOMMUNICATIONS OFFICE, BIDS AND AWARDS FOR INFORMATION AND COMMUNICATIONS TECHNOLOGY
(ICT), headed by DOTC ASSISTANT SECRETARY ELMER A. SONEJA as Chairman, and the TECHNICAL WORKING GROUP
FOR ICT, AND DOTC ASSISTANT SECRETARY LORENZO FORMOSO, AND ALL OTHER OPERATING UNITS OF THE DOTC
FOR INFORMATION AND COMMUNICATIONS TECHNOLOGY, and ZTE CORPORATION, AMSTERDAM HOLDINGS, INC.,
AND ALL PERSONS ACTING IN THEIR BEHALF, Respondents.

[G.R. NO. 179317]

AMSTERDAM HOLDINGS, INC., and NATHANIEL SAUZ, Petitioners, v.DEPARTMENT OF TRANSPORTATION AND

COMMUNICATIONS, SECRETARY LEANDRO MENDOZA, COMMISSION ON INFORMATION AND COMMUNICATIONS
TECHNOLOGY, and ASSISTANT SECRETARY LORENZO FORMOSO III, Respondents.

[G.R. NO. 179613]

GALELEO P. ANGELES, VICENTE C. ANGELES, JOB FLORANTE L. CASTILLO, TRINI ANNE G. NIEVA, ROY ALLAN T.
ARELLANO, CARLO MAGNO M. REONAL, ETHEL B. REGADIO, RAENAN B. MALIG, AND VINALYN M. POTOT, TOGETHER
WITH LAWYERS AND ADVOCATES FOR ACCOUNTABILITY, TRANSPARENCY, INTEGRITY AND GOOD GOVERNANCE
(LATIGO), Petitioners, v. DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC), represented by DOTC
SECRETARY LEANDRO MENDOZA, and ZHONG XING EQUIPMENT (ZTE) COMPANY, LTD., AND ANY AND ALL PERSONS
ACTING ON THEIR BEHALF,Respondents.

RESOLUTION

REYES, R.T., J.:

Under consideration is the Manifestation and Motion1 dated October 26, 2007 of the Office of the Solicitor General (OSG) which
states:

The Office of the Solicitor General (OSG) respectfully avers that in an Indorsement dated October 24, 2007, the Legal Service of the
Department of Transportation and Communications (DOTC) has informed it of the Philippine Government's decision not to continue
with the ZTE National Broadband Network Project (see attachment2 ). That said, there is no more justiciable controversy for this
Honorable Court to resolve. WHEREFORE, public respondents respectfully pray that the present petitions be DISMISSED.

On November 13, 2007, the Court noted the OSG's manifestation and motion and required petitioners in G.R. NOS. 178830,
179317, and 179613 to comment.

On December 6, 2007, Rolex Suplico, petitioner in G.R. No. 178830, filed his Consolidated Reply and Opposition,3 opposing the
aforequoted OSG Manifestation and Motion, arguing that:

66. Aside from the fact that the Notes of the Meeting Between President Gloria Macapagal-Arroyo and Chinese President Hu Jintao
held 2 October 2007 were not attached to the 26 October 2007 Manifestation and Motion - thus depriving petitioners of the
opportunity to comment thereon - a mere verbally requested 1st Indorsement is not sufficient basis for the conclusion that the ZTE-
DOTC NBN deal has been permanently scrapped.

67. Suffice to state, said 1st Indorsement is glaringly self-serving, especially without the Notes of the Meeting Between President
Gloria Macapagal-Arroyo and Chinese President Hu Jintao to support its allegations or other proof of the supposed decision to
cancel the ZTE-DOTC NBN deal. Public respondents can certainly do better than that.4

Petitioner Suplico further argues that:

79. Assuming arguendo that some aspects of the present Petition have been rendered moot (which is vehemently denied), this
Honorable Court, consistent with well-entrenched jurisprudence, may still take cognizance thereof.5

Petitioner Suplico cites this Court's rulings in Gonzales v. Chavez,6 Rufino v. Endriga,7and Alunan III v. Mirasol8 that despite their
mootness, the Court nevertheless took cognizance of these cases and ruled on the merits due to the Court's symbolic function of
educating the bench and the bar by formulating guiding and controlling principles, precepts, doctrines, and rules.
On January 31, 2008, Amsterdam Holdings, Inc. (AHI) and Nathaniel Sauz, petitioners in G.R. No. 179317, also filed their comment
expressing their sentiments, thus:

3. First of all, the present administration has never been known for candor. The present administration has a very nasty habit of not
keeping its word. It says one thing, but does another.

4. This being the case, herein petitioners are unable to bring themselves to feel even a bit reassured that the government, in the
event that the above-captioned cases are dismissed, will not backtrack, re-transact, or even resurrect the now infamous NBN-ZTE
transaction. This is especially relevant since what was attached to the OSG's Manifestation and Motion was a mere one (1) page
written communication sent by the Department of Transportation and Communications (DOTC) to the OSG, allegedly relaying that
the Philippine Government has decided not to continue with the NBN project "x x x due to several reasons and constraints."

Petitioners AHI and Sauz further contend that because of the transcendental importance of the issues raised in the petition, which
among others, included the President's use of the power to borrow, i.e., to enter into foreign loan agreements, this Court should take
cognizance of this case despite its apparent mootness.

On January 15, 2008, the Court required the OSG to file respondents' reply to petitioners' comments on its manifestation and
motion.

On April 18, 2008, the OSG filed respondents' reply, reiterating their position that for a court to exercise its power of adjudication,
there must be an actual case or controversy - one which involves a conflict of legal rights, an assertion of opposite legal claims
susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not
cognizable by a court of justice.9

Respondents also insist that there is no perfected contract in this case that would prejudice the government or public interest.
Explaining the nature of the NBN Project as an executive agreement, respondents stress that it remained in the negotiation stage.
The conditions precedent10 for the agreement to become effective have not yet been complied with.

Respondents further oppose petitioners' claim of the right to information, which they contend is not an absolute right. They contend
that the matters raised concern executive policy, a political question which the judicial branch of government would generally
hesitate to pass upon.

On July 2, 2008, the OSG filed a Supplemental Manifestation and Motion. Appended to it is the Highlights from the Notes of Meeting
between President Gloria Macapagal-Arroyo and Chinese President Hu Jintao, held in XI Jiao Guesthouse, Shanghai, China, on
October 2, 2007. In the Notes of Meeting, the Philippine Government conveyed its decision not to continue with the ZTE National
Broadband Network Project due to several constraints. The same Notes likewise contained President Hu Jintao's expression of
understanding of the Philippine Government decision.

We resolve to grant the motion.

Firstly, the Court notes the triple petitions to be for certiorari, prohibition and mandamus, with application for the issuance of a
Temporary Restraining Order (TRO) and/or Preliminary Injunction. The individual prayers in each of the three (3) consolidated
petitions are:

G.R. No. 178830

WHEREFORE, it is respectfully prayed of this Honorable Court:

1. Upon the filing of this Petition, pursuant to the second paragraph of Rule 58, Section 5 of the Rules of Court, issue forthwith an ex
parte temporary restraining order enjoining respondents, their subordinates, agents, representatives and any and all persons acting
on their behalf from pursuing, entering into indebtedness, disbursing funds, and implementing the ZTE-DOTC Broadband Deal;

2. Compel respondents, upon Writ of Mandamus, to forthwith produce and furnish petitioner or his undersigned counsel a certified
true copy of the contract or agreement covering the NBN project as agreed upon with ZTE Corporation;

3. Schedule Oral Arguments in the present case pursuant to Rule 49 in relation to Section 2, Rule 56 of the revised Rules of Court;
and,

4. Annul and set aside the award of the ZTE-DOTC Broadband Deal, and compel public respondents to forthwith comply with
pertinent provisions of law regarding procurement of government ICT contracts and public bidding for the NBN
contract.11 (Emphasis supplied)cralawlibrary
G.R. No. 179317

WHEREFORE, petitioners Amsterdam Holdings, Inc., and Nathaniel Sauz respectfully pray as follows:

A. upon the filing of this Petition for Mandamus and conditioned upon the posting of a bond in such amount as the Honorable Court
may fix, a temporary restraining order and/or writ of preliminary injunction be issued directing the Department of Transportation and
Communication, the Commission on Information and Communications Technology, all other government agencies and
instrumentalities, their officers, employees, and/or other persons acting for and on their behalf to desist during the pendency of the
instant Petition for Mandamus from entering into any other agreements and from commencing with any kind, sort, or specie of
activity in connection with the National Broadband Network Project;

B. the instant Petition for Mandamus be given due course; and,

C. after due consideration of all relevant issues, judgment be rendered directing respondents to allow herein petitioners access to all
agreements entered into with the Government of China, the ZTE Corporation, and/or other entities, government instrumentalities,
and/or individuals with regard to the National Broadband Network Project.12 (Emphasis supplied)cralawlibrary

G.R. No. 179613

WHEREFORE, it is respectfully prayed of this Honorable Court to:

1. Compel respondents, upon Writ of Mandamus, to forthwith produce and furnish petitioner or his undersigned counsel a certified
true copy of the contract or agreement covering the NBN project as agreed upon with ZTE Corporation;

2. Schedule Oral Arguments in the present case pursuant to Rule 49 in relation to Section 2, Rule 56 of the Revised Rules of Court;

3. Annul and set aside the award of the contract for the national broadband network to respondent ZTE Corporation, upon the
ground that said contract, as well as the procedures resorted to preparatory to the execution thereof, is contrary to the Constitution,
to law and to public policy;

4. Compel public respondent to forthwith comply with pertinent provisions of law regarding procurement of government infrastructure
projects, including public bidding for said contract to undertake the construction of the national broadband network.13 (Emphasis
supplied)cralawlibrary

On September 11, 2007, the Court issued a TRO14 in G.R. No. 178830, enjoining the parties from "pursuing, entering into
indebtedness, disbursing funds, and implementing the ZTE-DOTC Broadband Deal and Project" as prayed for. Pertinent parts of the
said Order read:

WHEREAS, the Supreme Court, on 11 September 2007, adopted a resolution in the above-entitled case, to wit:

"G.R. No. 178830 (Rolex Suplico v. National Economic and Development Authority, represented by NEDA Secretary Romulo L.
Neri, and the NEDA Investment Coordination Committee, Department of Transportation and Communications (DOTC), represented
by DOTC Secretary Leandro Mendoza, including the Commission on Information and Communications Technology, headed by its
Chairman, Ramon P. Sales, The Telecommunications Office, Bids and Awards for Information and Communications Technology
Committee (ICT), headed by DOTC Assistant Secretary Elmer A. Soneja as Chairman, and The Technical Working Group for ICT,
and DOTC Assistant Secretary Lorenzo Formoso, and All Other Operating Units of the DOTC for Information and Communications
Technology, and ZTE Corporation, Amsterdam Holdings, Inc., and ARESCOM, Inc. Acting on the instant petition with prayer for
temporary restraining order and/or writ of preliminary injunction, the Court Resolved, without giving due course to the petition, to

x   x   x

(d) Issue a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court,
enjoining the (i) National Economic and Development Authority, (ii) NEDA-Investment Coordination Committee, (iii) Department of
Transportation and Communications, Commission on Information and Communications Technology, (iv) Telecommunications
Office, Bids and Awards for Information and Communications Technology Committee (ICT), (v) Technical Working Group for ICT,
and all other Operating Units of the DOTC for Information and Communications Technology, (vi) ZTE Corporation; (vii) Amsterdam
Holdings, Inc., and (viii) ARESCOM, Inc., and any and all persons acting on their behalf from 'pursuing, entering into indebtedness,
disbursing funds, and implementing the ZTE-DOTC Broadband Deal and Project' as prayed for."

NOW THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondents (i) National
Economic and Development Authority, (ii) NEDA-Investment Coordination Committee, (iii) Department of Transportation and
Communications, Commission on Information and Communications Technology, (iv) Telecommunications Office, Bids and Awards
for Information and Communications Technology Committee (ICT), (v) Technical Working Group for ICT, and all other Operating
Units of the DOTC for Information and Communications Technology, (vi) ZTE Corporation; (vii) Amsterdam Holdings, Inc., and (viii)
ARESCOM, Inc., and any and all persons acting on their behalf are hereby ENJOINED from "pursuing, entering into indebtedness,
disbursing funds, and implementing the ZTE-DOTC Broadband Deal and Project" as prayed for.15 (Emphasis supplied.)

Petitioners in G.R. NOS. 178830 and 179613 pray that they be furnished certified true copies of the "contract or agreement covering
the NBN project as agreed upon with ZTE Corporation." It appears that during one of the Senate hearings on the NBN project,
copies of the supply contract16 were readily made available to petitioners.17Evidently, the said prayer has been complied with and is,
thus, mooted.

When President Gloria Macapagal-Arroyo, acting in her official capacity during the meeting held on October 2, 2007 in China,
informed China's President Hu Jintao that the Philippine Government had decided not to continue with the ZTE-National Broadband
Network (ZTE-NBN) Project due to several reasons and constraints, there is no doubt that all the other principal prayers in the three
petitions (to annul, set aside, and enjoin the implementation of the ZTE-NBN Project) had also become moot.

Contrary to petitioners' contentions that these declarations made by officials belonging to the executive branch on the Philippine
Government's decision not to continue with the ZTE-NBN Project are self-serving, hence, inadmissible, the Court has no alternative
but to take judicial notice of this official act of the President of the Philippines.

Section 1, Rule 129 of the Rules of Court provides:

SECTION 1. Judicial Notice, when mandatory. - A court shall take judicial notice, without introduction of evidence, of the existence
and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty
and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the
legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical
divisions. (Emphasis supplied)cralawlibrary

Under the rules, it is mandatory and the Court has no alternative but to take judicial notice of the official acts of the President of the
Philippines, who heads the executive branch of our government. It is further provided in the above-quoted rule that the court shall
take judicial notice of the foregoing facts without introduction of evidence. Since we consider the act of cancellation by President
Macapagal-Arroyo of the proposed ZTE-NBN Project during the meeting of October 2, 2007 with the Chinese President in China as
an official act of the executive department, the Court must take judicial notice of such official act without need of evidence.

In David v. Macapagal-Arroyo,18 We took judicial notice of the announcement by the Office of the President banning all rallies and
canceling all permits for public assemblies following the issuance of Presidential Proclamation No. 1017 and General Order No. 5.

In Estrada v. Desierto,19 the Court also resorted to judicial notice in resolving the factual ingredient of the petition.

Moreover, under Section 2, paragraph (m) of Rule 131 of the Rules of Court, the official duty of the executive officials20 of informing
this Court of the government's decision not to continue with the ZTE-NBN Project is also presumed to have been regularly
performed, absent proof to the contrary. Other than petitioner AHI's unsavory insinuation in its comment, the Court finds no factual
or legal basis to disregard this disputable presumption in the present instance.

Concomitant to its fundamental task as the ultimate citadel of justice and legitimacy is the judiciary's role of strengthening political
stability indispensable to progress and national development. 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. This is especially true where, as will be further
discussed, the legal issues raised cannot be resolved without previously establishing the factual basis or antecedents.

Judicial power presupposes actual controversies, the very antithesis of mootness. In the absence of actual justiciable controversies
or disputes, the Court generally opts to refrain from deciding moot issues. Where there is no more live subject of controversy, the
Court ceases to have a reason to render any ruling or make any pronouncement.

Kapag wala nang buhay na kaso, wala nang dahilan para magdesisyon ang Husgado.

In Republic Telecommunications Holdings, Inc. v. Santiago,21 the lone issue tackled by the Court of Appeals (CA) was whether the
Securities Investigation and Clearing Department (SICD) and Securities and Exchange Commission (SEC) en banc committed
reversible error in issuing and upholding, respectively, the writ of preliminary injunction. The writ enjoined the execution of the
questioned agreements between Qualcomm, Inc. and Republic Telecommunications Holdings, Inc. (RETELCOM). The
implementation of the agreements was restrained through the assailed orders of the SICD and the SEC en banc which, however,
were nullified by the CA decision. Thus, RETELCOM elevated the matter to this Court praying for the reinstatement of the writ of
preliminary injunction of the SICD and the SEC en banc. However, before the matter was finally resolved, Qualcomm, Inc. withdrew
from the negotiating table. Its withdrawal had thwarted the execution and enforcement of the contracts. Thus, the resolution of
whether the implementation of said agreements should be enjoined became no longer necessary.

Equally applicable to the present case is the Court ruling in the above-cited Republic Telecommunications. There We held, thus:

Indeed, the instant petition, insofar as it assails the Court of Appeals' Decision nullifying the orders of the SEC en banc and the
SICD, has been rendered moot and academic. To rule, one way or the other, on the correctness of the questioned orders of the
SEC en banc and the SICD will be indulging in a theoretical exercise that has no practical worth in view of the supervening event.

The rule is well-settled that for a court to exercise its power of adjudication, there must be an actual case or controversy - one which
involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot
or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. Where the issue has
become moot and academic, there is no justiciable controversy, and an adjudication thereon would be of no practical use or value
as courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging.

In the ultimate analysis, petitioners are seeking the reinstatement of the writ of injunction to prevent the concerned parties from
pushing through with transactions with Qualcomm, Inc. Given that Qualcomm, Inc. is no longer interested in pursuing the contracts,
there is no actual substantial relief to which petitioners would be entitled and which would be negated by the dismissal of the
petition.

The Court likewise finds it unnecessary to rule whether the assailed Court of Appeals' Decision had the effect of overruling the
Court's Resolution dated 29 January 1999, which set aside the TRO issued by the appellate court.

A ruling on the matter practically partakes of a mere advisory opinion, which falls beyond the realm of judicial review. The exercise
of the power of judicial review is limited to actual cases and controversies. Courts have no authority to pass upon issues through
advisory opinions or to resolve hypothetical or feigned problems.

While there were occasions when the Court passed upon issues although supervening events had rendered those petitions moot
and academic, the instant case does not fall under the exceptional cases. In those cases, the Court was persuaded to resolve moot
and academic issues to formulate guiding and controlling constitutional principles, precepts, doctrines or rules for future guidance of
both bench and bar.

In the case at bar, the resolution of whether a writ of preliminary injunction may be issued to prevent the implementation of the
assailed contracts calls for an appraisal of factual considerations which are peculiar only to the transactions and parties involved in
this controversy. Except for the determination of whether petitioners are entitled to a writ of preliminary injunction which is now moot,
the issues raised in this petition do not call for a clarification of any constitutional principle or the interpretation of any statutory
provision.22

Secondly, even assuming that the Court will choose to disregard the foregoing considerations and brush aside mootness, the Court
cannot completely rule on the merits of the case because the resolution of the three petitions involves settling factual issues which
definitely requires reception of evidence. There is not an iota of doubt that this may not be done by this Court in the first instance
because, as has been stated often enough, this Court is not a trier of facts.

Ang pagpapasiya sa tatlong petisyon ay nangangailangan ng paglilitis na hindi gawain ng Hukumang ito.

Respondent ZTE, in its Comment in G.R. No. 178830,23 correctly pointed out that since petitioner Suplico filed his petition directly
with this Court, without prior factual findings made by any lower court, a determination of pertinent and relevant facts is needed. ZTE
enumerated some of these factual issues, to wit:

(1) Whether an executive agreement has been reached between the Philippine and Chinese governments over the NBN Project;

(2) Whether the ZTE Supply Contract was entered into by the Republic of the Philippines, through the DOTC, and ZTE International
pursuant to, and as an integral part of, the executive agreement;

(3) Whether a loan agreement for the NBN Project has actually been executed;

(4) Whether the Philippine government required that the NBN Project be completed under a Build-Operate-and-Transfer Scheme;

(5) Whether the AHI proposal complied with the requirements for an unsolicited proposal under the BOT Law;
(6) Whether the Philippine government has actually earmarked public finds for disbursement under the ZTE Supply Contract;
andcralawlibrary

(7) Whether the coverage of the NBN Project to be supplied under the ZTE Supply Contract is more extensive than that under the
AHI proposal or such other proposal submitted therefor.24

Definitely, some very specific reliefs prayed for in both G.R. NOS. 178830 and 179613 require prior determination of facts before
pertinent legal issues could be resolved and specific reliefs granted.

In G.R. No. 178830, petitioner seeks to annul and set aside the award of the ZTE-DOTC Broadband Deal and compel public
respondents to forthwith comply with pertinent provisions of law regarding procurement of government ICT contracts and public
bidding for the NBN contract.

In G.R. No. 179613, petitioners also pray that the Court annul and set aside the award of the contract for the national broadband
network to respondent ZTE Corporation, upon the ground that said contract, as well as the procedures resorted to preparatory to the
execution thereof, is contrary to the Constitution, to law and to public policy. They also ask the Court to compel public respondent to
forthwith comply with pertinent provisions of law regarding procurement of government infrastructure projects, including public
bidding for said contract to undertake the construction of the national broadband network.

It is simply impossible for this Court "to annul and set aside the award of the ZTE-DOTC Broadband Deal" without any evidence to
support a prior factual finding pointing to any violation of law that could lead to such annulment order. For sure, the Supreme Court
is not the proper venue for this factual matter to be threshed out.

Thirdly, petitioner Suplico in G.R. No. 178830 prayed that this Court order "public respondents to forthwith comply with pertinent
provisions of law regarding procurement of government ICT contracts and public bidding for the NBN contract."25It would be too
presumptuous on the part of the Court to summarily compel public respondents to comply with pertinent provisions of law regarding
procurement of government infrastructure projects without any factual basis or prior determination of very particular violations
committed by specific government officials of the executive branch. For the Court to do so would amount to a breach of the norms of
comity among co-equal branches of government. A perceived error cannot be corrected by committing another error. Without proper
evidence, the Court cannot just presume that the executive did not comply with procurement laws. Should the Court allow itself to
fall into this trap, it would plainly commit grave error itself.

Magiging kapangahasan sa Hukumang ito na pilitin ang mga pinipetisyon na tumalima sa batas sa pangongontrata ng pamahalaan
kung wala pang pagtitiyak o angkop na ebidensiya ng nagawang paglabag dito.

Let it be clarified that the Senate investigation in aid of legislation cannot be the basis of Our decision which requires
a judicial finding of facts.

Justice Antonio T. Carpio takes the view that the National Broadband Network Project should be declared null and void. The
foregoing threefold reasons would suffice to address the concern of Our esteemed colleague.

The Court is, therefore, 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.

WHEREFORE, the petitions are DISMISSED. The Temporary Restraining Order issued on September 11, 2007 is DISSOLVED.