Republic of the Philippines

Sandiganbayan
Quezon City FOURTH DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff, -versusCrim. Case No. SB11-CRM-0467 For: Violation of Section 3 (g) of Republic Act No. 3019

GLORIA MACAPAGAL ARROYO, JOSE MIGUEL 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 Honorable

Court held, that: The Fundamental test in considering a Motion to Quash on this ground (that the facts alleged in the Information do not constitute the offense charged), is whether the facts alleged, if hypothetically admitted, will establish the essential elements of the offense charged as
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Copy of the Resolution was received on January 8, 2013

defined in the law (Cruz, Jr. vs. CA, G.R. No. 83754, February 18, 1991, 194 SCRA 145). Evidence aliunde or matters extrinsic of the Information are not to be considered (Cabrera vs. Sandiganbayan, G.R. Nos. 162314-17, October 24, 2004; 441 SCRA 377). Otherwise stated, 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 constitutive of the elements of the said offense. The Information provides details on how the offense was committed. Only these facts are to be considered, not matters of defense. Matters of defense raised in the subject Motion to Quash do not fall under any of the recognized exceptions in jurisprudence. The Court cannot consider allegations contrary to those appearing on the face of the information (Myrna P. Ramon S. Milo, et. al. vs. Angelito Salanga, et. al., G.R. No. L37007, July 20, 1987). The presence or absence of the elements of the crime is evidentiary in nature and is a matter of 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 was validly existing at the time of the filing of the complaint, and the effects thereof on the Government, are matters of defense which need presentation and consideration of evidence in the resolution of the same. xxx xxx xxx

The Information filed in connection with the instant case specifically states That in or about February to April 2007, in

Malacanang, Manila, Philippines, or sometime prior or subsequent thereto, and within the jurisdiction of this Honorable Court xxx. The words are clear, without room for interpretation. There is no basis to deal or argue in semantics. And if the facts as recited show that the Court in which the Complaint is presented, such as this Court, has jurisdiction, then this Court should assume jurisdiction. If the evidence adduced during the trial show that the offense was committed somewhere else, the Court should dismiss the action for want of jurisdiction (Rose Uy vs. Ca, et. al., G.R. No. 119000, July 28, 1997). At this stage of the action where only the sufficiency of the Information is in question, this Court assumes jurisdiction based on what is alleged in the Information. (Bold supplied) 2. Herein-accused most respectfully submits that while it is

true 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 the rule (Sec. 2 [a], Rule 113) permitting a motion to quash on the ground that the facts charged do not constitute an offense omits reference to the facts detailed in the information. Other sections of the same rule would imply that the issue is restricted to those alleged in the information (see secs. 9 and 10, Rule 113). Prima facie, the facts charged are those described in the complaint, but they may be amplified or qualified by others appearing to be additional circumstances, upon admissions

made by the peoples representative, which admissions could anyway be submitted by him as amendments to the same information. It

would seem to be pure technicality to hold that in the consideration of the motion the parties and the judge were precluded from considering facts which the fiscal admitted to be true, simply because they were not described in the complaint. Of course, it may be added that upon similar motions the court and the fiscal are not required to go beyond the averments of the information, nor is the latter to be inveigled into a premature and risky revelation of his evidence. But we see no reason to prohibit the fiscal from making, in all candor, admissions of undeniable facts, because the principle can never be sufficiently reiterated that such officials role is to see that justice is done: not that all accused are convicted, but that the guilty are justly punished. Less reason can there be to prohibit the court from considering those admissions, and deciding accordingly, in the interest of a speedy administration of justice.
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-trial Brief 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

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 for jurisdiction to be acquired by courts in criminal cases the offense should have been committed or any one of its essential ingredients took place within the territorial jurisdiction of the court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to take cognizance or to try the offense allegedly committed therein
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G.R. No. 156747, February 23, 2005, 452 SCRA 255, 271, citing Uy v. Court of Appeals, 276 SCRA 367 (1997).

by the accused. Thus, it cannot take jurisdiction over a person charged with an offense allegedly committed outside of that limited territory. Furthermore, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. And once it is so shown, the court may validly take cognizance of the case. However, if the evidence adduced during the trial show that the offense was committed somewhere else, the court should dismiss the 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. It is most respectfully submitted that if indeed, a

6.

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-Trial Conference 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.

7.

Thus, between a mere allegation in the

Information that the offense was committed in Malacaang, Manila, Philippines and the written admission 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

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 glaringly

missing in these casesthe existence of a contract, subject matter of the complaint.

Like the Supreme Court, this Office takes judicial notice of the fact that the NBN-ZTE National Broadband Network Project had been scrapped on 2 October 2007. In the Highlights of Notes of Meeting between President Hu Jintao held in XI Jiao Guesthouse, Shanghai, China, the Philippine Government conveyed its decision not to continue with the project due to several constraints. The same Notes likewise contained President Hu Jintaos expression of understanding of the Philippine Governments decision. Thus, when President Gloria Macapagal-Arroyo, acting in her official capacity during the 2 October 2007 meeting in China, informed Chinas President that the Government had decided to categorically shelve the project, there is no doubt that there is no contract to speak of in this case, thereby negating the existence of the second element sufficient

to sustain a finding of probable cause for violation of Section 3 (e) and 3 (g) of the Anti-Graft and Corrupt Practices Act. Despite extensive media mileage that the project has generated in the past three (3) years, one cannot close its eyes to the basic fact that the contract was abrogated. And neither is this

concept novel. As in the early case of Duterte vs. Sandiganbayan (289 SCRA 721), the Supreme Court, speaking through Justice Kapunan elucidated, that:
Finally, under the facts of the case, there is no basis in the law or in fact to charge petitioners for violation of Sec. 3 (g) of R.A. No. 3019. To establish probable cause against the offender for violation of Sec. 3(g), the following elements must be present: (1) the offender is a public officer; (2) he entered into a contract or transaction in behalf of the government; (3) the contract or transaction is grossly and manifestly disadvantageous to the government. The second

element of the crime that the accused public officers entered into a contract in behalf of the government is absent. The

computerization contract was rescinded on 6 May 1991 before SAR No. 91-05 came out on 31 May 1991 and before the Anti-Graft League filed its complaint with the Ombudsman on 1 August 1991. Hence, at that time the Anti-Graft League instituted their complaint and the

Ombudsman issued its Order on 12 November 1991, there was no longer any contract to speak of.

The contract, after 6 May 1991 became in contemplation of the law, non-existent, as if no contract 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 the Duterte 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.

PRAYER
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-BATACAN ROLL No. 30649 May 13, 1980 PTR No. 7621791; 01/10/2013 IBP No. 842873; 01/10/2013 MCLE No. IV 000171; 06/20/2012 -ANDATTY. MARK ANTHONY BAYQUEN ROLL No. 54076 April 25, 2007 IBP No. 869224/11-18-11/PPLM PTR No. 47593/01-09-12/Makati MCLE Compliance No. III-0013287, 30 March 2010

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REQUEST FOR HEARING The Hon. Division Clerk of Court 4th Division, Sandiganbayan Quezon 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 Prosecutor Centennial 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.

Copy furnished:

ATTY. EDNA HERRERA BATACAN

Office of the Special Prosecutor Centennial Building, Commonwealth Ave., Q.C.

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