fg motion for recon sb quash final

7/29/2019 FG MOTION for recon SB quash FINAL

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Republic of the Philippines

SandiganbayanQuezon City

FOURTH DIVISION

PEOPLE OF THE PHILIPPINES,Plaintiff,

-versus- Crim. Case No. SB11-CRM-0467

For: Violation of Section 3 (g) ofRepublic Act No. 3019

GLORIA MACAPAGAL ARROYO, JOSEMIGUEL ARROYO, BENJAMIN ABALOS,SR. and LEANDRO MENDOZA,

Accused.x---------------------------------------x

MOTION FOR RECONSIDERATION

ACCUSED JOSE MIGUEL ARROYO, through counsel, most

respectfully moves for a reconsideration of the Resolution of this Honorable

Court promulgated on January 7, 20131 DENYING the Motion to Quash

Information filed by the accused, and in support thereof, states:

1. In denying the Motion to Quash Information, this HonorableCourt held, that:

The Fundamental test in considering aMotion to Quash on this ground (that the factsalleged in the Information do not constitute theoffense charged), is whether the facts alleged, ifhypothetically admitted, will establish theessential elements of the offense charged as

1Copy of the Resolution was received on January 8, 2013


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defined in the law (Cruz, Jr. vs. CA, G.R. No.83754, February 18, 1991, 194 SCRA 145).Evidence aliunde or matters extrinsic of theInformation are not to be considered (Cabrera

vs. Sandiganbayan, G.R. Nos. 162314-17,October 24, 2004; 441 SCRA 377). Otherwisestated, we cannot go beyond the four (4)corners of the Information.

xxx xxx xxx

The Information thus charges a specific

offense, that is, violation of Sec. 3 (g), RA 3019,and alleges the facts/ circumstances constitutiveof the elements of the said offense. TheInformation provides details on how the offensewas committed. Only these facts are to beconsidered, not matters of defense. Matters ofdefense raised in the subject Motion to Quash donot fall under any of the recognized exceptionsin jurisprudence. The Court cannot consider

allegations contrary to those appearing on theface of the information (Myrna P. Ramon S. Milo,et. al. vs. Angelito Salanga, et. al., G.R. No. L-37007, July 20, 1987).

The presence or absence of the elements ofthe crime is evidentiary in nature and is a matterof defense that may be passed upon after a full

blown trial on the merits (Andres, et. al. vs.Cuevas, et. al., G.R. No. 150869, June 9, 2005).In this case, whether or not the contract wasvalidly existing at the time of the filing of thecomplaint, and the effects thereof on theGovernment, are matters of defense which needpresentation and consideration of evidence in theresolution of the same.

xxx xxx xxx

The Information filed in connection with theinstant case specifically states That in orabout February to April 2007, in


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Malacanang, Manila, Philippines, orsometime prior or subsequent thereto, andwithin the jurisdiction of this HonorableCourt xxx. The words are clear, without room

for interpretation. There is no basis to deal orargue in semantics. And if the facts as recitedshow that the Court in which the Complaint ispresented, such as this Court, has jurisdiction,then this Court should assume jurisdiction. If theevidence adduced during the trial show that theoffense was committed somewhere else, theCourt should dismiss the action for want ofjurisdiction (Rose Uy vs. Ca, et. al., G.R. No.

119000, July 28, 1997). At this stage of theaction where only the sufficiency of theInformation is in question, this Court assumesjurisdiction based on what is alleged in theInformation.(Bold supplied)

2. Herein-accused most respectfully submits that while it istrue that GENERALLY the Court cannot go beyond the four (4)

corners of the Information in resolving a Motion to Quash because

this motion is a hypothetical admission of the facts alleged in the

information, FACTS ALREADY ADMITTED BY THE

PROSECUTION, even, if not included in the Information,

may be considered by the Court as an EXCEPTION to the

general rule. In allowing the quashal of an Information, the

Supreme Court in People vs. Navarro, 75 Phil. 516, explained, that:

It must be noted that the section of therule (Sec. 2 [a], Rule 113) permitting a motionto quash on the ground that the facts chargeddo not constitute an offense omits reference tothe facts detailed in the information. Othersections of the same rule would imply that the

issue is restricted to those alleged in theinformation (see secs. 9 and 10, Rule 113).Prima facie, the facts charged are thosedescribed in the complaint, but they may beamplified or qualified by others appearing to beadditional circumstances, upon admissions


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made by the peoples representative, whichadmissions could anyway be submitted by him

as amendments to the same information. Itwould seem to be pure technicality

to hold that in the consideration ofthe motion the parties and the judgewere precluded from consideringfacts which the fiscal admitted to betrue, simply because they were notdescribed in the complaint. Ofcourse, it may be added that uponsimilar motions the court and the

fiscal are not required to go beyondthe averments of the information,nor is the latter to be inveigled intoa premature and risky revelation ofhis evidence. But we see no reasonto prohibit the fiscal from making, inall candor, admissions of undeniablefacts, because the principle can

never be sufficiently reiterated thatsuch officials role is to see thatjustice is done: not that all accusedare convicted, but that the guiltyare justly punished. Less reason canthere be to prohibit the court fromconsidering those admissions, anddeciding accordingly, in the interestof a speedy administration ofjustice.

3. There is therefore, basis for this Honorable Court to consider

the undeniable facts admitted by the Prosecution in resolving the Motion to

Quash, even if these admitted facts were not stated in the Information.

Particularly, in the stipulation of facts, under the Pre-trialBrief made during the Pre-trial Conference and jointly

agreed, signed by the Prosecution and accused Jose

Miguel arroyo and his counsel, and submitted to this


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Honorable Court, the Prosecution admitted that the

subject contract was entered into in CHINA.Necessarily,

the Information charges a crime allegedly committed in

China. Although the Information alleges the place of

commission as Malacaang, Manila, Philippines, the

admission by the Prosecution during the judicial

proceeding of Pre-Trial, indubitably shows that the

alleged act of entering into a contract with ZTE happened

in China, which is therefore outside the criminal

jurisdiction of this Honorable Court. Unlike the Revised

Penal Code, R.A. 3019 has no provision that would allow

its application to acts committed outside the territory of

the Philippines. Therefore, the general exceptions to the territoriality

rule on criminal jurisdiction provided in Article 2 of the Revised Penal Code

do not apply to accused Jose Miguel Arroyo. Even if we consider that the

Revised Penal Code may be suppletory to special laws, an extended

interpretation of Article 2 (4) of the Penal Code to cover private persons

will be contrary to the established rule that doubts should be resolved in

favor of the accused.

4. The Supreme Court held in Macasaet v. People2 that:

It is a fundamental rule that forjurisdiction to be acquired by courts incriminal cases the offense should havebeen committed or any one of itsessential ingredients took place withinthe territorial jurisdiction of the court.

Territorial jurisdiction in criminal cases isthe territory where the court hasjurisdiction to take cognizance or to trythe offense allegedly committed therein

2G.R. No. 156747, February 23, 2005, 452 SCRA 255, 271, citing Uy v. Court of Appeals, 276 SCRA 367 (1997).


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by the accused. Thus, it cannot takejurisdiction over a person charged withan offense allegedly committed outside ofthat limited territory. Furthermore, the

jurisdiction of a court over the criminalcase is determined by the allegations inthe complaint or information. And once itis so shown, the court may validly takecognizance of the case. However, if theevidence adduced during the trial showthat the offense was committedsomewhere else, the court should dismissthe action for want of jurisdiction.

5. Moreover, one of the purposes of a Pre-trial is to limit the

issues and abbreviate the proceedings of the case, which purpose is clearly

defeated with the denial of accused Jose Miguel Arroyos Motion to Quash.

6. It is most respectfully submitted that if indeed, a

criminal offense was committed when the ZTE contract

was executed in China, it is clearly outside of the

jurisdiction of this Honorable Court. While the

Information contains allegations and states that, the act

was committed in Malacaang, Manila, Philippines, it is

admitted by the Prosecution during the Pre-TrialConference as contained in the jointly-signed Pre-trial

Brief submitted to this Honorable Court that the ZTE

contract was signed in China. Entering into a contract

means the signing of the contract. Without the execution

of the contract, there could be no violation of Section 3

(g) of R.A. 3019.


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7. Thus, between a mere allegation in the

Information that the offense was committed in

Malacaang, Manila, Philippines and the writtenadmission by the Prosecution that the offense

was committed in Boao, China, in the jointly-signed

Pre-trial brief (by the prosecution and accused Jose

Miguel Arroyo) submitted to this Honorable Court

during the Pre- trial of the case and has become a

judicial admission, more weight should be

accorded to the latter and it is most respectfully

submitted that clearly, this Honorable Court has no

jurisdiction over the case.

8. On the same vein, there is also no doubt that the subject

contract was already cancelled and abrogated prior to the filing of

this case. The Resolution of the Honorable Ombudsman, which is made

part of the records of this case, clearly admits this fact, as it even crafted a

theory in complete disregard of the pronouncement made by the Supreme

Court in Duterte vs. Sandiganbayan. This Honorable Court could also take

judicial notice of this fact of abrogation or cancelation of the ZTE contract.

Considering therefore, the admitted and undeniable fact that the subject

ZTE contract was already abrogated and cancelled before the filing of the

instant case, it becomes indubitable that the facts alleged in the

Information do not constitute a violation of Section 3 (g),R.A. 3019. The Information did not allege that the ZTE

contract was effected or implemented. Proceeding from

and conformable to the Supreme Court ruling in Duterte


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vs. Sandiganbayan (289 SCRA 721), a constitutive

element of a violation of Section 3 (g) of R.A. 3019 is that

the contract is an effective or implemented contract, NOT

one which was already cancelled or abrogated. With the

abrogation of the contract long before the institution of

the criminal complaint, there is no contract to speak of.

9. Thus, in its earlier Joint Resolution dated, 21 April 2009 in

OMB-C-C-08-0040-B and other NBN-ZTE companion cases, the Honorable

Ombudsman correctly held, that:

One element is glaringlymissing in these casestheexistence of a contract, subjectmatter of the complaint.

Like the Supreme Court, thisOffice takes judicial notice of the factthat the NBN-ZTE National BroadbandNetwork Project had been scrappedon 2 October 2007.In the Highlights ofNotes of Meeting between President HuJintao held in XI Jiao Guesthouse,

Shanghai, China, the PhilippineGovernment conveyed its decision not tocontinue with the project due to severalconstraints. The same Notes likewisecontained President Hu Jintaos expressionof understanding of the PhilippineGovernments decision. Thus, whenPresident Gloria Macapagal-Arroyo, actingin her official capacity during the 2 October

2007 meeting in China, informed ChinasPresident that the Government had decidedto categorically shelve the project, there isno doubt that there is no contract to speakof in this case, thereby negating theexistence of the second element sufficient


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to sustain a finding of probable cause forviolation of Section 3 (e) and 3 (g) of theAnti-Graft and Corrupt Practices Act.

Despite extensive media mileagethat the project has generated in the pastthree (3) years, one cannot close its eyesto the basic fact that the contract was

abrogated. And neither is thisconcept novel. As in the earlycase of Duterte vs.Sandiganbayan (289 SCRA 721),

the Supreme Court, speakingthrough Justice Kapunanelucidated, that:

Finally, under the facts of thecase, there is no basis in the law orin fact to charge petitioners forviolation of Sec. 3 (g) of R.A. No.

3019. To establish probable causeagainst the offender for violation ofSec. 3(g), the following elementsmust be present: (1) the offender isa public officer; (2) he entered intoa contract or transaction in behalfof the government; (3) the contractor transaction is grossly andmanifestly disadvantageous to the

government. The secondelement of the crime that theaccused public officers enteredinto a contract in behalf of thegovernment is absent. Thecomputerization contract wasrescinded on 6 May1991 beforeSAR No. 91-05 cameout on 31 May 1991 and beforetheAnti-Graft League filed itscomplaint with the Ombudsman on1 August 1991. Hence, at that timethe Anti-Graft League institutedtheir complaint and the


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Ombudsman issued its Order on 12November 1991, there was nolonger any contract to speak of.

The contract, after 6 May 1991

became in contemplation ofthe law, non-existent, as if nocontract was ever executed.(Bold and underscoring supplied)

10. It is respectfully submitted that pursuant to the ruling in People

vs. Navarro, the allegation of the Information on the ZTE

contract must be qualified by the admitted fact to the

effect that the ZTE contract was already abrogated before

the filing of this case. With the above-quoted pronouncement

of the Supreme Court in theDuterte case, interpreting

the elements of a violation of Section 3 (g), R.A.

3019, which interpretation had already become

part of the legal system of the land and therefore

binding upon this Honorable Court, the facts

alleged in the Information do not constitute a

violation of Section 3(g) of R.A. 3019.

P R A Y E R

WHEREFORE, premises considered, it is most respectfully prayed of

this Honorable Court to reconsider its Resolution promulgated on January

7, 2013 and order the quashal of the Information filed against accused

Atty. Jose Miguel Arroyo and dismiss the case against him on the grounds,

that: (1) this Honorable Court has no jurisdiction over the

offense charged in the Information, and (2) the


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allegations made therein do not constitute an offense,

which defect is not curable by amendment.

Accused further prays for such relief or other remedies which this

Honorable Court may deem just and equitable in the premises.

Quezon City; January 10, 2013.

HERRERA BATACAN & ASSOCIATES LAW FIRM(Counsel for Accused Atty. Jose Miguel T. Arroyo)Suite 301 Crispina Building,

1589 Quezon Avenue, Quezon City

By:

ATTY. EDNA HERRERA-BATACANROLL No. 30649 May 13, 1980

PTR No. 7621791; 01/10/2013IBP No. 842873; 01/10/2013MCLE No. IV 000171; 06/20/2012

-AND-

ATTY. MARK ANTHONY BAYQUENROLL No. 54076 April 25, 2007

IBP No. 869224/11-18-11/PPLMPTR No. 47593/01-09-12/MakatiMCLE Compliance No. III-0013287, 30 March 2010


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REQUEST FOR HEARING

The Hon. Division Clerk of Court

4th Division, SandiganbayanQuezon City

Greetings:

Kindly submit the foregoing Motion for Reconsideration for the

consideration of this Honorable Court on January 18, 2013 at 8:30 oclock

in the morning, or as soon thereafter, as counsel and matter may be

heard.

ATTY. EDNA HERRERA BATACAN

NOTICE OF HEARING

Office of the Special ProsecutorCentennial Building,Commonwealth Ave., Q.C.

Greetings:

Kindly take notice that the undersigned counsel is submitting the

foregoing Motion for Reconsideration for the consideration of this

Honorable Court on January 18, 2013 at 8:30 oclock in the morning, or as

soon thereafter, as counsel and matter may be heard.

ATTY. EDNA HERRERA BATACANCopy furnished:

Office of the Special Prosecutor

Centennial Building,Commonwealth Ave., Q.C.

fg motion for recon sb quash final

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