Former San Juan City vice mayor Francis Zamora and two others have asked the Sandiganbayan for leave to file a demurrer to evidence in connection with their technical malversation case.
Zamora filed the motion for leave seeking to dismiss his case before the anti-graft court’s Sixth Division the alleged technical malversation of P2.1 million calamity funds when he was San Juan City councilor in 2008.
This was his case with his rival Senator Joseph Victor “JV” Ejercito, then San Juan City mayor who likewise filed a motion for leave to file demurrer to evidence.
Their political rivalry started when vice mayor Zamora broke away from his alliance and challenged reelectionist mayor Guia Gomez, JV Ejercito’s mother, during the 2016 elections. Zamora lost that mayoralty bid.
READ: Ejercito seeks court’s nod to file demurrer on technical malversation
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.
Zamora and his fellow councilors Rolando Bernardo and Angelino Mendoza said the prosecution failed to present evidence that they conspired with Ejercito to commit the crime of technical malversation.
The prosecution also failed to show proof that the three were accountable officers over the fund, a vital element of technical malversation.
The evidence presented by the prosecution likewise showed that the funds used to purchase the high-powered firearms were actually charged to the general fund, not the calamity fund as alleged.
The prosecution presented the following documents to prove that the purchase was made using the general fund: a 2007 Landbank check, the municipal treasurer account book for the cash in bank, Landbank statement of account of current account, and the allotment and obligation slips.
“The prosecution documentary evidence also reveals the funds used to purchase the firearms came from the general fund and not specifically the calamity fund,” the demurrer read.
The prosecution also presented the 2008 city ordinance, which actually shows that the calamity funds can be used to purchase firearms, Zamora said.
A city ordinance in 2008 states that the calamity fund may be used for “preventive activities, relief, rehabilitation, reconstruction and other works and services in connection with man-made disasters resulting from unlawful acts of insurgents terrorists and other criminals.”
A joint Department of Budget and Management-Interior and Local Government memorandum circular in 2003 also authorizes the Sanggunian Panlungsod to use the calamity fund for man-made disasters resulting from criminal activities.
The council’s enactment of this said ordinance, however, does not mean they conspired with accused Ejercito but only meant that they were doing their legislative functions, the demurrer read.
“None of the prosecution’s witnesses testified that accused Mendoza, Bernardo and Zamora collaborated or planned with one another or with the other accused with an intention to misuse government funds,” Zamora said in the demurrer.
Zamora, Mendoza and Bernardo thus asked for the court’s leave to file a demurrer to evidence “by reason of the insufficiency of evidence… to sustain the allegations of the complaint.”
Zamora, Ejercito and other members of the city council 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 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.
Ejercito was earlier acquitted of a related case after the Sandiganbayan Fifth Division granted his demurrer to evidence to the graft case involving the same alleged calamity fund misuse.
In that dismissed graft charge, 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
READ: Sandiganbayan affirms graft acquittal of JV Ejercito