MANILA – After being cleared of graft over the allegedly illegal procurement of firearms during his stint as San Juan City mayor, Senator Joseph Victor Ejercito is now seeking to have his remaining technical malversation case dismissed.

Ejercito and his co-accused have asked the Sandiganbayan’s Sixth Division for leave to file a demurrer to evidence on his technical malversation case over the alleged illegal diversion of P2.1 million in calamity funds used to purchase high-powered firearms.

A demurrer of evidence is a motion to dismiss the case for lack of sufficient evidence to convict the accused. It urges the court to decide on the case halfway through the trial based solely on the evidence presented by prosecution.

Ejercito stands in trial with former San Juan City vice mayors Francis Zamora, Leonardo Celles and 10 other members of the city council who approved the use of funds.

Also accused are then-city councilors Andoni Carballo, Vincent Pacheco, Angelino Mendoza, Dante Santiago, Rolando Bernardo, Grace Pardines, Domingo Sese, Francis Peralta, Edgardo Soriano, Janna~Ejercito-Surla, Ramon Nakpil, and Joseph Torralba.

The offense was allegedly committed in 2008, when Ejercito was San Juan City mayor, and Zamora was councilor.

Ejercito filed his motion for leave to file a demurrer with Celles, Carballo, Pacheco,Santiago, Pardines, Peralta, Soriano, Ejercito-Surla, and Torralba. Meanwhile, Zamora jointly submitted a motion with Mendoza and Bernardo.

‘NO EVIDENCE’

Although the court received two separate motions from the camps of Ejercito and Zamora, their defenses both pointed out that the technical malversation case should be dismissed due to lack of sufficient evidence presented by the prosecution.

Ejercito listed four points to prove that the prosecution's case will not legally stand.

First, Ejercito insisted that the "there was no diversion, misapplication, or misuse of public funds" since the use of calamity funds was authorized by appropriation ordinances. He also pointed out that these ordinances remain valid and subsisting up to today.

Second, Ejercito said only the court can declare the city ordinances invalid. But, the ordinances on the use of calamity funds were never questioned or challenged in court.

The third point raised in Ejercito's motion was the prosecution's failure to prove that the calamity fund was really used to buy the firearms.

Lastly, Ejercito said there was also no proof that they conspired to commit technical malversation.

"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 to this case was supported by an appropriation ordinance validly enacted by the Sangguniang Panlungsod. Thus, the prosecution cannot impugn the legality of the Ordinances through a collateral challenge in this action to support its claim," Ejercito's motion read.

Ejercito's motion also said that "there should have been proof that the calamity fund had been previously earmarked for some other public purpose or activity but was instead applied to the cost of acquiring the subject firearms."

"Here, the exact opposite happened. Accused allocated a portion of the calamity fund for the firearms first before actually purchasing them."

It was also noted that the cost of the firearms purchase was not charged to the calamity fund by the end of 2008.

Aside from the points stated by Ejercito, Zamora, meanwhile, said the prosecution panel’s evidence were "clearly insufficient" to sustain allegations or present elements of technical malversation.

Among them was the lack of proof that they were accountable officers.

Zamora also said, the witnesses and evidence presented on the first part of the trial showed the money used to purchase the firearms came from the general fund--and not from the calamity fund.

Among this is the Land Bank of the Philippines check used to pay the supplier. The account number where the funds was taken came from the San Juan City's "General Fund."

The Municipal Treasurer's account book also indicated that the cash in bank came from the General Fund, while the entry for the allotment which would supposedly charge the item to the calamity fund was cancelled, Zamora added.