Transcript of Senator Mar Roxas at the
joint committee probe on the NBN deal

Opening remarks, on lack of cooperation of the executive:

MAR: We have been here for more than an hour and so far we have not moved forward to what in my mind is the importance of the hearing. The importance of this hearing is really to get to the bottom of this NBN/ZTE contract controversy. I am struck, Mr. Chairman, by the empty chairs I see, which is in stark contrast to the earlier hearings where even those who were not summoned, Cabinet members who were not even invited, were all here in a show of support, a show of force and a show of camaraderie to the Cabinet members who were present. This hearing has been long scheduled, it's been known, and we see several of the invitees in this room.

I want to put on record that what ought to be the subject of the committee report is the seeming subjective, if not capricious manner in which executive participation or cooperation is being applied, for whatever reason, tactical or otherwise. When the executive feels it is in their advantage to be present, they are here. When they feel it is not to their advantage, they are absent. And this subjective, perhaps capricious application of the principle of full disclosure is certainly not good for democracy, for the checks and balance feature of our relationship as between the legislature and the executive.

Mr. Chairman, fellow colleagues, we are here in aid of legislation. In my mind, what comes easily are the ODA Law and the Procurement Act as two laws that certainly can be improved, can be fortified in order that purchases such as the ZTE deal where there is no bidding, where under executive agreement there is no legislative oversight, or if at all, the oversight or the information comes only after the fact, is one of those areas where remedial legislation is absolutely necessary. We need to hammer out this remedial legislation and certainly it is my view that it is the duty of the executive to aid the legislature so that we can in fact come out with good laws. And I put that here on the record, Mr. Chairman, so that our own committee report, and our own deliberations, will in fact tackle these matters. First, the remedial legislation in and of itself, and second the subjective application of the full disclosure principle.

The full disclosure principle is at the heart of the checks and balances that makes our democracy healthy. And without that, when that is subjectively applied, then we will be blinded, and we will not be able to perform.

So with that, Mr. Chairman, I yield the floor to my fellow chair, but put on record those comments. Second, with respect to those comments, there must be decisions with respect to the confidentiality invocation by the DoTC of the annexes that they have submitted to the committee. The DoTC submitted to us the copy of the contract as well as the annexes. In their submission, however, they have asked for a confidentiality treatment to these annexes, claiming they are proprietary in nature. This matter must be decided by the committee, if in fact, we will treat this confidentially. Because these are documents pertinent to a government contract, or what was a government contract, until the government now has deemed it canceled.

So what is the principle upon which this confidentiality is invoked? This is one item that must be decided right away, because if we don't have access to this information, similar to the information that we are waiting from Secretary Neri, then how can we do our job? How can we know if these contracts were in fact properly undertaken, were properly priced, and whether in fact the interest of our country, of the taxpayer was protected by those who entered into this contract?

On the need for an independent analyst of NBN documents:

MAR: Mr. De Venecia is not an expert on DoTC matters. His views, while informative, would not be determinant as to whether we will be impleaded, or included in this confidentiality agreement which is between DoTC and ZTE. The DoTC has "requested," has appealed, that these documents be taken up with utmost confidentiality, and that if they are to be discussed, that they be done under executive session. The point here is, yes we need that information, but without qualifying the contents of this, then it is a useless exercise. So I think it's important for the committee to decide whether in fact we will accept this invocation of confidentiality regarding the annexes of this contract.

Likewise, all of these submissions by Secretary Santos. He has partially complied with the requested information, and invokes executive privilege, whether properly or not remains to be determined, but invokes executive privilege, and indirectly from the executive secretary, to not release the transcripts of the NEDA meetings.

Again, these are discussions relative to public interest, relative to a contract that was entered into and now has been in effect rescinded. This is also a matter that we need to determine. Much as we also need to determine the invocation of executive privilege by Secretary Neri.

The point is, Mr. Chairman and colleagues, is that if all of this information is withheld from us, if there is no full disclosure, how can we do our job? How will we get to the bottom of this? How will we be able to properly amend the laws? How will we be able to set an objective parameter, so that the invocation of secrecy, confidentiality, executive privilege, and the participation of the executive in hearings such as this is not subjective, is not capricious? Just whenever they want to be here, they participate. When they don't want, they are not present.

We have to decide whether we are entitled to seek outside persons to enable us to understand all this financial and technical information that is contained in the annexes.

Clearly, ZTE provided this information as part of their costing. What is relevant to us, however, is whether the Filipino negotiators were competent enough to ensure that we are not being taken for a ride. Did they negotiate well enough, whatever pricing, whatever bill of materials contained in there are in fact what is appropriate, and are we going to pay the right price for this? Because it is with respect to the Philippine side who agreed to this pricing, who signed it, that my interest is directed at.

I feel that in any event, our committee report will focus on Philippine officials, Philippine regulations, Philippine laws and Philippine procurement practice. If ZTE for example put there [in the annexes] one cellphone, and P100,000 for this cellphone, they are just acting as businessmen. If our negotiators were incompetent or corrupt to accept P100,000 as the price of this cellphone, that is our business to look into their behavior. What ZTE does is between them and their government. It is our oversight, and I believe our role here, to look upon the Philippine officials who are tasked to protect our interest.

Certainly we must look at this from a holistic or total perspective, but our mandate is to safeguard our interest. If we want to give them courtesies and we want to give them every chance to participate, I find nothing wrong with that. My point is that we need to get this information, we need to be able to analyze it, we need to be able to consult expert witnesses and not competitor-witnesses, meaning expert third-party witnesses to figure out whether in fact our negotiators protected our interest. And it is in that context that I am keen to have a decision on the confidentiality nature at least on the submission of DoTC, and likewise with respect to the documents that the NEDA, through its Director-General has withheld, or has decided to withhold under executive privilege from the Senate.

Whatever Mr. De Venecia says on possible overprice will be subject already to the clouding that he was a competing bidder or a competing business interest. Which is precisely why we need to have independent third-party assessment. But that third-party assessment can only come if we are able to provide them the bill of particulars. And that is why, Mr. Chairman, that is perhaps the most important step here.

How will we reliably know, how will we, with objective measure, know what is the real price, whether in fact there was overpricing or not, whether there was overdesign or not, whether this was gold-plated or stainless steel. There are many ways to design something as complex as this. We want to know whether in fact it is our interest, the republic's interest was safeguarded, but we can only determine that if in fact we have objective third party inputs. And that can only come if we are able to provide this bill of particulars, which is now the subject of the confidentiality request.