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 TO QUASH INFORMATION

ACCUSED ATTY. JOSE MIGUEL ARROYO, through counsel, most respectfully moves that this Honorable Sandiganbayan quash the Information in the instant case, and in support thereof, states:

I PREFATORY STATEMENT

The constitutionally enshrined requisite of due process mandates that an accused be given an opportunity to know the accusations lodged against him. Hence, it is basic that the Criminal Information must allege the existence of every element constitutive of the offense charged. If the facts alleged do not constitute an offense, the Information must be

quashed and the case against the accused be dismissed, unless the defect is curable by amendment. It will be unfair to the accused to go through trial in the hope that during the proceedings, facts would come out to fill in the void in the Criminal Information. Similarly, it will be unjust for the accused to be tried of an offense of which the court has no jurisdiction considering the place of commission and other circumstances peculiar to the circumstances of the accused.

Section 3, Rule 117 of the Revised Rules of Criminal Procedure provides that a Criminal Information may be quashed, even after arraignment, on the following grounds:
(a) That the facts charged do not constitute an offense; (b) That the court trying the case has no jurisdiction over the offense charged.

In the instant case, accused Jose Miguel Arroyo was charged in an Information for alleged violation of Section 3 (g) of Republic Act No. 3019 in connection with the ZTE contract signed and executed in Boao, China, which is therefore outside the criminal jurisdiction of this Honorable Court. As discussed hereunder, the defects in the information are:

(i)

It charges a crime allegedly committed in

China. Although the Information alleges the place of commission as Malacanang, Manila, Philippines, the records and evidence of the Prosecution

indubitably show that the assailed act of signing and execution of the NBN-ZTE contract happened in Boao, China
(a fact which is admitted by the Prosecution in the Joint Stipulation of Facts and Common Exhibits, No. 5, dated June 6, 2010)

and is therefore outside of 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; and

ii)

The facts alleged in the Criminal Information

do not constitute a violation of Section 3 (g) of R.A. 3019 because the NBN-ZTE contract (as admitted by
the Office of the Ombudsman in the Joint Stipulation of Facts and Common Exhibits No. 6, dated June 6, 2012) was already

cancelled and abrogated.

Moreover, accused Arroyo is NOT a public official, as the alleged Office of the First Gentleman is not a public office, hence he could not be charged of violating

Section 3 (g), which by its own terms, could be

violated only by a public official. This fact was admitted

by the Office of Special Prosecutor in Its Comment/Opposition to the accused Motion for Authority to Travel dated, 07 June 2012, to wit: 6. Also, even at the time that his wife was the President of the Philippines, there is no public or government office created by law referred to as the Office of the First Gentleman of the Philippines. 7. Moreover, accused Atty. Jose Miguel T. Arroyo is a private individual and has never held any position in government, DURING and AFTER the TENURE of his wife, former President Ma. Gloria Macapagal Arroyo.

While

exceptionally,

the

Supreme

Court

in

Go

vs.

Sandiganbayan; Singian vs. Sandiganbayan (478 SCRA 348); and Santillano vs. People of the Philippines (614 SCRA 164) ruled that
a private person in conspiracy with a public official may be charged with violating Section 3 (g) of R.A. 3019, this ruling would not apply to accused Arroyo because unlike Go and the other private persons involved in the said cases,

herein-accused,

Atty.

Arroyo

was

not

contracting party or a representative of one in the NBNZTE contract.

II GROUNDS RELIED UPON

Pursuant to Section 3, Rule 117 of the Rules on Criminal Procedure, the following are the grounds for this Motion to Quash Information: A.

This Honorable Court has no jurisdiction over the offense charged in the information.

-The act of entering into the NBN-ZTE contract, which constitutes the main element of violating Section 3 (g) of R.A. 3019, happened in China. The territoriality rule forbids the exercise of criminal jurisdiction by a Philippine court over an act committed outside of the Philippines. As this Honorable Court could not have criminal jurisdiction over the case insofar as the officials of ZTE in China are concerned, it could not also have jurisdiction over the case with respect to accused Jose Miguel Arroyo, who is not a public official, and is therefore not included even in the general exceptions recognized under Philippine laws.

B.

On the basis of the Criminal Information and the Records of the case, the facts charged do not constitute an offense.
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-The information did not allege that

the NBN-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 for 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.

-Moreover, pursuant to Go vs. Sandiganbayan (478 SCRA 348), SECTION 3(g) OF R.A. 3019 MAY BE VIOLATED ONLY BY A PUBLIC OFFICER. Accused ATTY. Jose Miguel Arroyo, being a private individual could not be liable in an information charging this offense. The exception on conspiracy does not apply in this case because accused Arroyo is neither a contracting party nor a representative in the execution of a contract. The doctrine in Go vs. Sandiganbayan does not therefore apply to him.

III DISCUSSION

This Honorable Court has no jurisdiction over the alleged offense because the act of entering a contract, which is the main element of the offense charged, did not happen in the Philippines. By admission of the prosecution, the NBN-ZTE contract was executed in BOAO, CHINA.

It is worth noting that the cancelled NBN-ZTE Agreement was executed in China between the Government of the Philippines and ZTE. It is fundamental that the criminal jurisdiction of Philippine courts is limited only to acts or omissions within the territorial jurisdiction of the Philippines. The Supreme Court held in Macasaet v. People,1 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 by the accused. Thus, it cannot take jurisdiction over a person charged with an offense allegedly
1

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

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. If indeed a criminal offense was committed when the ZTE contract was executed in Boao, China, it is clearly outside of the jurisdiction of this Honorable Court. While

the Criminal Information states that the act was committed in Malacanang, it was admitted by the Prosecution that the ZTE contract was signed and executed in Boao, China. Entering into a contract means the signing of the contract. violation of Section 3 (g) of R.A. 3019.
Noticeably, R.A. 3019 does not contain any provision that would extend its application to acts or omissions outside of Philippine jurisdiction. But even considering the exceptions to the territoriality rule under the Revised Penal Code, which may be suppletory to special laws, accused Jose Miguel Arroyo does not fall under any of the exceptions because he is not even a public officer to begin with.

Without the

execution of the contract, there could be no

The information is defective in that, even if the allegations are hypothetically admitted, they could not constitute the offense charged because the element of an effective and un-cancelled contract is missing. With the abrogation of the contract long before the institution of the criminal complaint, there is no contract to speak of and there could be no gross and manifest disadvantage to the government that would constitute a violation of Section 3 (g) of R.A. 3019.

In its earlier Joint Resolution dated 21 April 2009 in OMB-C-C-080040-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 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

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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)

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 had become part of the legal system of the land and is therefore binding upon the Ombudsman and this Honorable Court until and unless reversed or set aside by the Supreme Court in a subsequent case. Thus, Article 8 of the New Civil Code provides, that:

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Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.
In the landmark case of People vs. Jabinal (55 SCRA 607), the Supreme Court, in absolving the accused from criminal liability, heldDecisions of this Court, although in themselves not laws, are nevertheless evidence of what the laws mean, and this is the reason why under Article 8 of the New Civil Code "Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system..."

The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that law originally passed, since this Court's construction merely establishes the contemporaneous legislative intent that law thus, construed intends to effectuate. The settled rule supported by
numerous authorities is a restatement of legal maxim "legis interpretatio legis vim obtinet" the

interpretation placed upon the written law by a competent court has the force of law. The doctrine laid down in Lucero and
Macarandang was part of the jurisprudence, hence
part of the law of the land at the time appellant was found in possession of the firearm in question and when he was arraigned by the trial court. It is true that the doctrine was overruled in the Mapa case in 1967, but when a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively, and should not apply to parties who had relied on the old doctrine and acted on the faith thereof. This is

especially true in the construction and application of criminal laws, where it is necessary that the punishability of an

12

act be reasonably foreseen for the guidance of society.

It follows, therefore, that considering that appellant conferred his appointments as Secret Agent and Confidential Agent and authorized to possess a firearm pursuant to the prevailing doctrine enunciated in Macarandang and Lucero, under which no criminal liability would attach to his possession of said firearm in spite of the absence of a license and permit therefore, appellant must be absolved. Certainly, appellant may not be punished for an act which at the time it was done was held not to be punishable.

It is therefore, most respectfully submitted that the Office of the Ombudsman could not formulate its own contrary interpretation with that of the Honorable Supreme Court, in the commission of a violation of Section 3 (g) of R.A. 3019 by stating, that: The moment a public official signs a grossly disadvantageous contract, he incurs criminal liability even if the contract has been cancelled. This would make the act of entering into a contract that was cancelled and is of no legal effect, punishable under Section 3(g) R.A. 3019, which was held not to be punishable in Duterte vs. Sandiganbayan.

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The doctrine laid down in Jabinal was totally ignored by the Ombudsman in its Resolution dated December 23, 2011, which effectively supplanted the earlier Resolution of 21 April 2009 in OMB-C-C-08-0040-B.

Furthermore, it must be emphasized that the ruling in Luciano v. Estrella, Et Al. relied upon by the Ombudsman, finds no application in this case simply because the factual circumstance thereof is entirely different. The contract in Luciano WAS NOT CANCELLED OR RESCINDED.
In fact, at the time the criminal case was instituted

against respondents Makati Mayor Maximo Estrella, et al. on January

18, 1969, the contract was substantially implemented and

the

Municipal

Government

of

Makati

already

paid

Php48,841 to JEP Enterprises. The essence of Luciano is that

there is no necessity to first prove the validity of the contract for purposes of determining guilt under Section 3(g). However, Luciano does not

suggest that the moment a contract is signed, the offense of violation of Section 3(g) of R.A. 3019 is committed, even if the contract was already cancelled.

The case law that applies squarely to the instant controversy is the case of Duterte vs. Sandiganbayan. To reiterate, the Supreme Court in Duterte clearly ruled that, for a violation of

14

Section 3(g) of R.A. 3019, the element that the accused entered into a contract in behalf of the Government is absent, if the contract is already rescinded. This is because, in contemplation of law, the rescinded contract is non-existent, as if no contract was ever executed. Thus, in this particular case, no damage or injury was incurred by the government. Furthermore, violation of the Anti-Graft law is not a continuing offense or crime (from China to the Philippines).

It bears to stress also, that by the terms of the NBNZTE contract, it could not be effective upon the mere signing thereof, as it was still subject to several conditions for its effectiveness, to wit:

41.11 Effectiveness of Contract 41.11.1 This Contract shall become effective and the Parties shall become bound by all terms and conditions of this Contract on the date (Effective Date) when the conditions set forth below have been fully satisfied or waived by Purchaser: (a) (b) This Contract has been duly authorized, executed, and delivered by the Parties; All authorizations necessary for the execution, delivery, performance of this Contract and the transactions contemplated hereby have been obtained and are in full force and effect; and

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(c)

The Loan Agreement has come into effective.

Thus, even if the contract was not cancelled, the concompliance of the conditions thereof, including the loan from China, render the contract ineffective and could not bind any party thereto.
With this alone, the allegations made in the information could not constitute the offense of violating Section 3(g) of R.A. 3019.

Pursuant to the ruling in Go vs. Sandiganbayan, Section 3(g) of R.A. 3019 may be violated only by a public officer. Accused Jose Miguel Arroyo, being a private individual, could not be charged in an Information for a violation of said provision, even by conspiracy because he is neither a contracting party nor a representative of one.

There is no proof that accused Jose Miguel Arroyo performed some overt act as a direct or indirect contribution to a conspiracy to commit a violation of Section 3(g) of R.A. 3019.

The Supreme Court has already resolved the issue of whether or not a private person may be charged for a violation of Section 3(g) of R.A.

16

3019. In the case of Henry Go vs. Sandiganbayan, it was held that:

From a cursory reading of the Information, it indubitably shows that all the elements enumerated for the violation of Section 3(g) relate to the public officer, not to the private individual, for as have been emphasized, Section

3(g) is a crime that can only be committed by public officers.

This brings to the fore the overstated point that Section 3(g), by its clear terms, can only be committed by public officers, for if it were otherwise, then the law itself would have clearly provided for it. Notably, even certain paragraphs of Section 3 of Republic Act No. 3019 provide for its application to private individuals, but not Section 3(g), thus:
xxx
SEC. 3. Corrupt practices of public officers. xxxx

The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section nine of this Act and shall be permanently or temporarily disqualified, in the discretion of the Court, from transacting business in any form with the Government.

It is clear that sub-paragraph (g) is not included in the quoted portion of Section 3.

17

There are indeed offenses punishable under the Revised Penal Code or other special laws where the mere allegation of conspiracy will suffice in order to validly charge the persons who connived in the commission of the offense. In Section 3(g), however,

and other penal provisions, which can only be committed by a certain class of persons, an allegation of conspiracy to indict those which are clearly not within its purview, is deficient, as shown in Luciano v. Estrella where the public officers were convicted under Section 3(g) and yet the private parties therein were acquitted inspite of the allegation of conspiracy in the Information. (Bold for Emphasis
supplied.)

Section 3(g) of RA 3019, by its text, cannot be extended or even enlarged by implication or intendment to bring within its limited scope private persons. The said provision of law punishes only

public officers as it penalizes the act of "entering, on behalf of the government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby."

As a private person, accused Jose Miguel Arroyo could not enter into a contract "on behalf of the government," there being no showing of any
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agency relations or special authority for him to act for and on behalf of the government.

In Marcos v. Sandiganbayan, G.R. No. 126995, 06 October

1998, the Court acquitted then First Lady Imelda R. Marcos of the charge
of violation of Section 3(g) of R.A. 3019 as it found that she did not sign the subject Lease Agreement, entered into between the Light Railway Transit Authority (LRTA) and Philippine General Hospital Foundation, Inc. (PGHFI), as a public officer, but in her capacity as Chairman of the PGHFI, a private entity. As such, the Supreme Court held that the first element of the offense charged, i.e., that the accused is a public officer, was wanting. In Sajul v. Sandiganbayan, G.R. No. 135294, 20 November 2000, 345 SCRA 248, only the public officers were charged with violation of Section 3(g). The private individuals were not included in the indictment obviously for the same reason.

Even considering the Supreme Courts modification of its ruling in Go vs. Sandiganbayan to the effect that a private person may be held liable together with the public officer if there is conspiracy between them, the ruling will not apply to accused Jose Miguel Arroyo because it could not be possible for him to have entered into the NBN-ZTE contract. The act

of entering into a contract, which is punishable under Section 3(g), may be done ONLY by a contracting party or a representative of a contracting party. Article 1305 of the Civil Code defines a contract as a meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service. It is most respectfully

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submitted that the concept of a contract precludes the possibility that a non-contracting party could ENTER thereto through conspiracy with a contracting party. The doctrine of conspiracy where the act of one is the act of all could not apply to the act of entering into a contract. The suggestion in the modified Go vs. Sandiganbayan ruling is that Go, a private individual, could have been charged under Section 3(g) in conspiracy with public officer Rivera if not for the fact that the case against Rivera was already dismissed. Suffice it to state that Go was the Chairman and President of PIATCO, which is the private contracting party. In

Singian

vs.

Sandiganbayan (478 SCRA 348) cited in Go vs. Sandiganbayan,

private individual Gregorio Singian, Jr., an incorporator of a corporation, was included in a charge for violation of Section 3(g) because he participated in the loan transactions by signing an undertaking which was part of his corporations contract. In Santillano vs. People, the private person who was included in the charge was the contracting party.

The application therefore of Section 3(g) to private individuals in conspiracy with public officers under present jurisprudence is limited ONLY to a private

person

who

is

contracting

party

or

representative of a contracting party. Accused Atty. Jose Miguel Arroyo is neither a contracting party

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nor a representative of one. A basic maxim in statutory construction is that the interpretation of penal laws is strictly construed against the State and liberally construed against the accused.

Even in the remote possibility that a private person, who is a complete stranger to a contract, may be charged under Section 3(g) in conspiracy with a public officer, there is no substantial proof to support a finding of conspiracy among herein-accused. It is a basic rule in conspiracy that cooperative acts of the accused towards the common criminal objective prove that they were parties to a conspiracy. The second paragraph of Article 8 of the Revised Penal Code defines conspiracy, as follows: "A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it." (1) (2) (3) The elements of conspiracy are the following:

two or more persons came to an agreement, the agreement concerned the commission of a felony, and the execution of the felony was decided upon.

Accused Jose Miguel Arroyos indictment was due to his alleged involvement in a conspiracy as shown by his unusual interest in the transaction. Page 34 of the December 23, 2011 Ombudsman Resolution states, that: Mr. Arroyo displayed unusual interest in the transaction, as gathered from his acts of playing golf and having lunch with ZTE

21

officials in Shenzhen, China, and initiating a reconciliatory meeting between JDV III and Mr. Abalos. His active intervention, as reflected earlier, in the transaction makes him a conspirator in the approval of the ZTEs proposal and the eventual signing of the contract.

Suffice it to state that accused Atty. Jose Miguel Arroyo merely accompanied his wife, former President Gloria Macapagal Arroyo, who was invited by ZTE for lunch during a visit to China, upon the invitation of the latter state. It must be clarified that there were no ZTE officials in the golf game which accused Atty. Jose Miguel Arroyo played with Joe De Venecia, Abalos and President Gloria Macapagal Arroyo. Accused Atty. Jose Miguel Arroyos presence at the luncheon was a marital and social function of the First Gentlemen to be supportive of his wife, then President of the Philippines. It does not prove any conspiracy in the approval of the NBN-ZTE contract especially considering the fact that the NBN-ZTE contract was an Executive Agreement and it was the Chinese Government which had chosen ZTE to implement the project.

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Accused respectfully submits that the Office of the Ombudsman erred in concluding that the NBN-ZTE Contract is not an Executive Agreement but simply a commercial contract. It will be noted that the contract involved in the present case includes the Memorandum of Understanding (MOU) dated 12 July 2006 between ZTE and the Philippine Governments Trade and Industry Secretary Peter Favila, the various exchange of notes between the Philippine Government and the Chinese Government and the Supply Contract.

The

ZTE

transaction

being

Government

to

Government transaction, as opined by the Department of Justice, the allegation that accused Jose Miguel Arroyo, a private individual, influenced the approval of the deal by joining a luncheon with executives of ZTE crumbles to the ground.
As held in numerous Supreme Court decisions, conspiracy is not presumed, there must be an overt act showing participation in the questioned transaction. In the case of Hermenegildo Magsuci

vs. People of the Philippines (G.R. No. L-101545 January 3, 1995, 240
SCRA 13), it was ruled, that: There is conspiracy "when two or more persons come to an agreement concerning the commission of a felony and decide to commit it." Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together,

23

however, the evidence must be strong enough to show the community of criminal design.

For conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is the product of intentionality on the part of the cohorts. It is necessary that a conspirator should have performed some overt act as a direct or indirect contribution to the execution of the crime committed. It was held in

Santos v.

Sandiganbayan, (G.R. Nos. 71523-25, December 8, 2000, 347 SCRA 386, 420) that:
The overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the commission of the crime or by exerting moral ascendancy over the other co-conspirators. Hence, the mere

presence of an accused at the discussion of a conspiracy, even approval of it, without any active participation in the same, is not enough for purposes of conviction.

With the above elucidation, the theory of conspiracy alleged in the Information is devoid of any factual support. The conclusion of unusual interest of accused Jose Miguel Arroyo in the ZTE deal is based on whimsical and capricious speculations, surmises and conjectures.

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PRAYER
WHEREFORE, premises considered, and in the interest of justice and due process, it is most respectfully prayed of this Honorable Court to Quash 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 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; September 25, 2012.

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. 6121498; 01/12/2012 IBP No. 826755; 01/12/2012 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; 03/30/2010

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Copy furnished: Office of the Special Prosecutor Centennial Building, Commonwealth Ave., Q.C. REQUEST FOR HEARING The Hon. Division Clerk of Court 4th Division, Sandiganbayan Commonwealth, Quezon City Greetings: Kindly submit the foregoing Motion to Quash for the consideration and approval of this Honorable Court on September 28, 2012 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., Quezon City Greetings: Kindly take notice that the undersigned counsel is submitting the foregoing MOTION TO QUASH THE INFORMATION for the consideration and approval of this Honorable Court on September 28, 2012 at 8:30 oclock in the morning, or as soon thereafter, as counsel and matter may be heard. ATTY. EDNA HERRERA-BATACAN

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