Ejercito seeks court’s nod to file demurrer on technical malversation

Senator Joseph Victor “JV” Ejercito has asked the Sandiganbayan for leave to file a demurrer to evidence in connection with his technical malversation case before the Sandiganbayan.

Ejercito filed the motion for leave seeking to dismiss his remaining case before the Sixth Division of the anti-graft court, especially after the Fifth Division granted his demurrer to evidence to dismiss his related graft charge over the alleged misuse of P2.1 million calamity funds when he was San Juan city mayor.

A demurrer to evidence is a legal remedy during trial when an accused feels confident the case may be dismissed based on the prosecution’s weak evidence.

Ejercito said the prosecution failed to prove that the calamity funds were misappropriated to purchase high-powered firearms.

The use of the calamity funds was also authorized by appropriation ordinances, Ejercito said.

“The prosecution failed to establish with sufficient evidence their guilt beyond reasonable doubt, as shown by the following facts and legal grounds… (that) there was no diversion, misapplication, or misuse of public funds,” Ejercito said through his lawyers.

“The use of calamity fund for the subject transaction was authorized by appropriation ordinances, all of which remain to be valid and subsisting up to today,” it added.

READ: Ejercito blames rivals in firearms deal graft rap

Ejercito maintained that the prosecutors failed to prove the calamity fund was malversed to buy the firearms, especially because the cost of the firearms was actually paid out of San Juan City’s general fund.

The prosecutors also failed to present proof that the calamity fund was earmarked for purposes other than the purchase of firearms.

Ejercito said that actually “exact opposite happened” — that the portion of the calamity fund was actually allocated for the firearms before the purchase happened.

The senator also noted that the Commission on Audit did not even disallow the questioned transaction.

Ejercito filed the motion for leave with his co-accused former vice mayor Leonardo Celles and members of the Sanggunian Panlungsod members Jannah Ejercito-Surla (Sen. Ejercito’s cousin), Andoni Miguel Carballo, Vincent Rainer Pacheco, Dante Santiago, Grace Pardines, Francis Keith Peralta, Edgardo Soriano, and Joseph Christopher Torralba.

Ejercito, together with former San Juan city vice mayor Francis Zamora, among others face a technical malversation trial over the alleged illegal use of public funds for purposes other than which the fund was appropriated, punishable under Section 220 of the Revised Penal Code.

Ejercito has pinned the blame on his rival Zamora for the charges.

READ: San Juan vice mayor Zamora pleads not guilty to malversation

The prosecutors accused Ejercito of conspiring with other city officials to purchase high-powered firearms in February 2008 using the city’s calamity fund as “investment for disaster preparedness.”

The city council, which included Zamora, then passed an ordinance that allowed Ejercito to buy the firearms for the city’s police department.

Ejercito approved the purchase even though the city was not under a state of calamity when the purchase was made.

The firearms bought using the city’s calamity fund include: three units of model K2 cal. 5.56mm sub-machine guns and 17 units of Daewoo model K1 cal. 5.56 mm sub-machine guns.

In the graft charge which was eventually dismissed by the court, the prosecution alleged that the purchase was done with haste without “competitive bidding and without any post-qualification, bolstered by bid documents bearing dates earlier than the publication of the invitation to bid, showing that an unwarranted benefit, advantage and preference was accorded to the supplier,” the prosecutors said.

The Ombudsman cited the joint circular between the Departments of Budget and Management and the Interior and Local Government which did not include high-powered firearms among the items needed for disaster relief and mitigation.

READ: JV Ejercito, San Juan VM Zamora face graft raps over P2.1-M gun deal

In its resolution granting Ejercito’s demurrer on the graft rap, the anti-graft court said the prosecution failed to prove Ejercito gave unwarranted benefit to supplier HK Tactical Defense System Inc. (HKTDSI) to win the bid for the supply of Daewoo firearms.

READ: JV Ejercito asks court’s nod to file motion to junk graft rap 

There was no evidence to prove Ejercito specified or pre-selected the Daewoo brand, the court said.

Although Ejercito approved the ordinance that specified the Daewoo brand, the senator also approved the ordinance that “expressly did away” with the brand, the court said.

The prosecution also failed to prove that Ejercito pressured the Bids and Awards Committee (BAC) to pre-select the Daewoo brand of firearms, and said that Ejercito did not even approve but merely “noted” the Invitation to Apply for Eligibility and to Bid. JE