ROLEX SUPLICO, Petitioner, vs NATIONAL ECONOMIC AND DEVELOPMENT

AUTHORITY, represented by NEDA SECRETARY ROMULO L. NERI, and the NEDA-INV

Facts:
I. FACTS Three petitions were filed before the SC (prohibition, mandamus, certiorari),
with application for the issuance of a TRO and/or Preliminary Injunction praying, among
others, for the following:
1. enjoin respondents from pursuing, entering into indebtedness, disbursing funds, and
implementing the ZTE-DOTC Broadband Deal;
2. compel respondents to produce and furnish petitioner or his counsel a certified true
copy of the contract or agreement covering the NBN project as agreed upon with ZTE
Corporation;
3. annul and set aside the award of the ZTE-DOTC Broadband Deal, and
4. compel public respondents to comply with pertinent provisions of law regarding
procurement of government ICT contracts and public bidding for the NBN contract.

Sept. 11, 2007. SC issued a TRO enjoining the parties from pursuing, entering into
indebtedness, disbursing funds, and implementing the ZTE-DOTC Broadband Deal and
Project.

Oct. 26, 2007. OSG filed a Manifestation and Motion stating that they have been
informed by the DOTC, through an Indorsement, of the government’s decision not to
continue with the ZTE National Broadband Network Project and there being no
justiciable controversy, prayed for the dismissal of the cases.

The Petitioners filed their Comment to the Motion which may be summarized as
follows:
1. The Indorsement is not a sufficient basis to conclude that the ZTE-DOTC NBN deal has
been permanently scrapped, especially since the Notes of the Meeting between PGMA
and Pres. Hu Jintao was not attached.
2. There is no assurance that in the event the cases are dismissed, the government will
not backtrack, re-transact, or even resurrect the NBN-ZTE transaction as what was
indicated in the Indorsement was that they have decided not to continue due to several
reasons and constraints. 3. SC should take cognizance of the case despite its apparent
mootness because of the transcendental importance of the issues raised (i.e. President’s
use of the power to borrow).

OSG’s position is set out below:

1. For the SC to exercise its power of adjudication, there must be an actual case or
controversy. 2. There is no perfected contract that would prejudice the government or
public interest. The ZTE-DOTC contract, as an executive agreement, remained in the
negotiation stage.

OSG filed a Supplemental Manifestation and Motion appending the notes of the
meeting between PGMA and Pres. Hu Jintao where the PH government conveyed its
decision not to continue due to several constraints and that the Chines government is
understanding of the same.

Issue:
Whether or not the petition be denied because of mootness because their resolution
requires reception of evidence which cannot be done in an original petition brought
before the Supreme Court.

Held:
No. The SC held that it has no alternative but to take judicial notice of the official act of
the President.

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.

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 as an
official act of the executive department, the Court must take judicial notice of such
official act without need of evidence.
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.
Even assuming that SC brush aside mootness, it cannot completely rule on the merits of
the case because its resolution involves settling factual issues which definitely requires
reception of evidence and it cannot be done by the SC in the first instance because it is
not a trier of facts. Some of the reliefs prayed for in the petitions require prior
determination of facts before pertinent issues can be resolved and the reliefs granted.
One of reliefs prayed for is for the Court to order respondents to comply with pertinent
provisions of law regarding the procurement of government ICT contracts and public
bidding for the NBN Contract. It would be too presumptuous on the part of the Court to
summarily compel public respondents to comply with pertinent provisions of law
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 coequal branches of government.
Without proper evidence, the Court cannot just presume that the executive did not
comply with procurement laws.

Moreover, under Section 2, paragraph (m) of Rule 131 of the Rules of Court, the official
duty of the executive officials 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. The Court finds no factual or legal basis to
disregard this disputable presumption in the present instance.