Senator Joseph Victor “JV” Ejercito. LYN RILLON/INQUIRER FILE PHOTO
Sen. Joseph Victor “JV” Ejercito has sought permission from the Sandiganbayan Sixth Division to seek the dismissal of his technical malversation case for insufficiency of evidence.
In a three-page motion for leave to file demurrer, Ejercito and nine former San Juan City councilors said state prosecutors have “failed to establish” that they misappropriated P2.1 million in calamity funds to purchase high-powered firearms when he was mayor in 2008. A demurrer to evidence is a motion by the defendant to dismiss the case for insufficiency of evidence.
According to the Ejercito-led motion, there was no diversion or misapplication of public funds because the use of the funds had been authorized by the Sangguniang Panlungsod ordinances that have yet to be invalidated by any court.
“The question to be addressed in proving guilt beyond reasonable doubt on the part of the accused must only be whether or not the use of the public funds for the firearms subject of this case was supported by an appropriation ordinance validly enacted by the Sangguniang Panlungsod,” the motion read.
Collateral challenge
The motion added that prosecutors “cannot impugn the legality of the Ordinances through a collateral challenge” just to prove the city officials’ criminal liability.
At the same time, the motion said the prosecution failed to show the calamity funds were really spent on the firearms bought from lone bidder HK Tactical Defense System Inc. (HKTDSI).
No proof
It stated that the prosecution’s own evidence and witnesses, including City Accounting Office head Alicia Barazon and city treasurer Leticia Alcober, even confirmed that the cost of the firearms were paid out of the general fund and not the calamity fund.
“Thus, the second element of technical malversation, i.e., that the accused applied the calamity fund to some public use, is absent as there is no proof of such application in the first place,” the motion read.
The councilors’ part in enacting the appropriation ordinances should also not be considered a conspiracy because “no proof of any overt act done by accused that will indicate a common intention, plan or design to commit technical malversation,” it said.
The payment for the firearms was also not charged to the calamity fund at the instruction of the Commission on Audit, it said.
Coaccused
Joining Ejercito in questioning the prosecution’s case were city councilors Leonardo Celles and Vincent Rainier Pacheco, and public information officer Grace Pardines.
Also joining the demurrer were former councilors Andoni Miguel Carballo, Pacheco, Dante Santiago, Pardines, Francis Keith Peralta, Edgardo Soriano, Jannah Ejercito-Surla, and Joseph Christopher Torralba.
Still pending
State prosecutors were given 10 days to state why Ejercito and the other accused should not be allowed to challenge the evidence through a demurrer.
While the technical malversation case is still pending trial at the Sixth Division, the court’s Fifth Division in December already granted Ejercito’s demurrer against the separate graft case in connection with alleged procurement anomalies in the award of the contract to HKTDSI.