ARTICLE 211-A. QUALIFIED BRIBERY

In document Criminal Law 2 Reviewer (Page 53-58)

TITLE VII: CRIMES COMMITTED BY PUBLIC OFFICERS

10. ARTICLE 211-A. QUALIFIED BRIBERY

Ø This is always in the consummated stage. There is no attempted much less frustrated stage in indirect bribery.

Ø There must be clear intention on the part of the public officer

o to take the gift offered and o consider the property as his

own for that moment.

Ø Mere physical receipt unaccompanied by any other sign, circumstance or act to show such acceptance is not sufficient to convict the officer.

Ø Public officers receiving gifts and private persons giving gifts on any occasion, including Christmas are liable under PD 46.

Ø The crime of qualified bribery may be committed only by public officers

“entrusted with enforcement” whose official duties authorize then to arrest or prosecute offenders.

Ø The penalty is qualified if the public officer is the one who asks or demands such present.

Ø If penalty is lower than reclusion perpetua and/or death, the crime is

direct bribery

Ø The dereliction of the duty punished under Article 208 of the Revised Penal Code is absorbed.

Ø The offender is the giver of the gift or the offeror of the promise. The act may or may not be accomplished.

Ø The following are the SPECIAL LAWS related to the prosecution and punishment of GRAFT and CORRUPTION:

1. PRESIDENTIAL DECREE NO. 749 2. RA NO. 3019 (ANTI-GRAFT AND

CORRUPT PRACTICES ACT)

3. RA NO. 7080 (ANTI-PLUNDER ACT) 4. RA NO. 1379 (FORFEITURE OF

ILL-GOTTEN WEALTH)

5. PRESIDENTIAL DECREE NO. 46 6. RA 6713: CODE OF CONDUCT AND

ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES

PRESIDENTIAL DECREE NO. 749 Ø Givers of bribes and other gifts as well

as accomplices in bribery and violations of the Anti-graft and Corrupt Practices Act are immune from prosecution under the following circumstances:

a. information refers to consummated violations

b. necessity of the information or testimony

c. the information and testimony are not yet in the possession of the State

d. information and testimony can be corroborated on its material points

11. ARTICLE 212. CORRUPTION OF PUBLIC OFFICIALS

Elements:

1. Offender makes offers or promises or gives gifts or presents to a public officer;

2. The offers or promises are made or the gifts or presents given to a public officer, under circumstances that will make the public officer liable for direct bribery or indirect bribery.

10. ARTICLE 211-A. QUALIFIED BRIBERY

Elements:

1. Offender is a public officer

entrusted with law

enforcement;

2. He refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death;

3. Offender refrains from arresting or prosecuting in consideration of any offer, promise, gift, or present.

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VII. CRIMES COMMITTED BY PUBLIC OFFICERS CRIMINAL LAW II

e. informant has been previously convicted of a crime involving moral turpitude

Ø Before the bribe-giver may be dropped from the information, he has to be charged first with the receiver.

Ø The immunity granted the bribe-giver is limited only to the illegal transaction where the informant gave voluntarily the testimony.

Ø The immunity shall not attach when it turns out that the information given is false and malicious, for the purposes of harassing the officer. The public officer in this even is entitled to the appropriate action against the informant.

RA NO. 3019 (ANTI-GRAFT AND CORRUPT PRACTICES ACT)

Acts Punished (Sec. 3):

A. Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense.

B. Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit for himself or for any other person in connection with any contract or transaction between the government and any other party wherein the public officer in his official capacity has to intervene under the law.

C. Directly, or indirectly requesting or receiving any gift, present, or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner of capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the held given or to be given.

D. Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination.

E. Causing any undue injury to any party, including the Government,

or giving any private party any unwarranted benefits, advantage, or preference in the discharge of his official, administrative or judicial function through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

F. Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest of giving undue advantage in favor of or discriminating against any other interested party.

G. 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.

H. Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or take part in his official capacity, or in which he is prohibited by the constitution or by any law from having any interest.

I. Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel, or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group.

J. Knowingly approving or granting any license, permit, privilege, or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege, or advantage, or of a mere representative or dummy of one who is not so qualified or entitled.

K. Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.

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VII. CRIMES COMMITTED BY PUBLIC OFFICERS CRIMINAL LAW II

Persons Liable:

A. Any public officer who shall perform any of the following acts enumerated in Sec. 3

B. Any person having family or close personal relation with any public official who shall capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift, or material, or pecuniary advantage from any person having some business, transaction, application, request, or contact with the government in which such public official has to intervene (Sec. 4) C. Any person who shall knowingly

induce or cause any public official to commit any of the offenses under (A). (Sec. 4)

D. Spouse or any relative, by consanguinity or affinity, within the 3rd civil degree, of the president of the Philippines, the vice-president, the president of the Senate, or speaker of the house of Representatives, who shall intervene, directly or indirectly, in any business transaction, contract or application with the gov’t (Sec.

5).

This prohibition shall not apply to:

1. Any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the gov’t along the same line of business;

2. Any transaction, contract or application already existing or pending at the time of such assumption of public office;

3. Any application filed by him, the approval of which is not discretionary on the part of the official(s) concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law;

4. Any act lawfully performed an official capacity or in the exercise of a profession.

E. Any member of congress, during the term for which he has been elected, who shall acquire or receive any personal pecuniary interest in any specific business enterprise which shall be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by Congress during his term (Sec. 6).

F. Any public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution or acquires or receives any such interest during his incumbency (Sec. 6).

G. The member of Congress or other public officer who, having such interest prior to the approval of a law or resolution authored or recommended by him, continues for thirty days after such approval to retain his interest (Sec. 6).

H. Any public officer who shall fail to file a true, detailed and sworn statement of assets and liabilities within 30 days after assuming office and thereafter on or before the 15th day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office (Sec. 7).

Prima Facie Evidence of and Dismissal due to unexplained Wealth (Sec. 8):

Ø If a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income.

Ø Properties in the name of the spouse and dependents of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown.

Ø Bank deposits in the name of or manifestly excessive expenditures incurred by the public official, his spouse or any of their dependents including but not limited to activities in any club or association or any ostentatious display of wealth including frequent travel abroad of a non-official character by any public official when such activities entail expenses evidently out of proportion to legitimate income.

Competent court:

→ All prosecutions under this Act shall be within the original jurisdiction of the Sandiganbayan (Sec. 10).

Prescription of offenses:

→ All offenses punishable under this Act shall prescribe in 15 years (Sec. 11).

Exceptions:

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VII. CRIMES COMMITTED BY PUBLIC OFFICERS CRIMINAL LAW II

→ Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude of friendship according to local customs or usage, shall be excepted from the provisions of this act (Sec.

14).

RA NO. 7080 (ANTI-PLUNDER ACT) Definition of Ill-gotten wealth:

Ø Any asset, property, business enterprise or material possession of any person acquired by him directly or indirectly through dummies, nominees, agents, subordinates, and/or business associates by any combination or series of the following means or similar schemes:

A. Through misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury.

B. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;

C. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries;

D. By obtaining, receiving or accepting, directly or indirectly, any shares of stock, equity or any other form of interest or participation, including the promise of future employment in any business enterprise or undertaking.

E. By establishing agricultural, industrial or commercial monopolies or other combinations, and/or implementation of decrees and orders intended to benefit particular persons or special interests;

F. By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage or prejudice of the Filipino people and the Republic of the Philippines.

Estrada v. Sandiganbayan

Ø The Supreme Court held that the means and schemes to acquire

ill-gotten wealth should be committed by a combination or through a series of acts. There should be at least two acts otherwise the accused should be charged with the particular crime committed and not with plunder. A combination means at least two acts of a different category while a series means at least two acts of the same category.

Persons Liable:

A. Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates and subordinates or other persons, amasses, accumulates, or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described under (I) in the aggregate amount or total value of at least 50 million pesos, shall be guilty of the crime of plunder (as amended by RA 7659).

B. Any person who participated with the said public officer in the commission of plunder.

Jurisdiction:

Ø All prosecutions under this Act shall be within the original jurisdiction of the Sandiganbayan.

Rule of Evidence:

Ø For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme and conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.

Prescription of Crime:

Ø The crime of plunder shall prescribe in 20 years. However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches or estoppel.

RA NO. 1379 (FORFEITURE OF ILL-GOTTEN WEALTH)

Ø The proceedings are civil and not criminal in nature.

Ø If the public officer is found to have amassed wealth out of proportion to his legitimate income, the said wealth will be forfeited in favor of the government.

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VII. CRIMES COMMITTED BY PUBLIC OFFICERS CRIMINAL LAW II

Ø No criminal charges can be filed against the public officer under this law; however the said public officer may be held criminally and/or administratively liable under other laws.

PRESIDENTIAL DECREE NO. 46 Ø Prohibits giving and acceptance of

gifts by a public officer or to a public officer, even during anniversary, or when there is an occasion like Christmas, New Year, or any gift-giving anniversary.

Ø Both giver and receiver are punished.

Ø The giving of a party is also punishable and is not limited to the public officer only but also to any member of his family.

RA 6713: CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC

OFFICIALS AND EMPLOYEES

Definition of terms:

A. "Conflict of interest" arises when a public official or employee is a member of a board, an officer, or a substantial stockholder of a private corporation or owner or has a substantial interest in a business, and the interest of such corporation or business, or his rights or duties therein, may be opposed to or affected by the faithful performance of official duty.

B. "Divestment" is the transfer of title or disposal of interest in property by voluntarily, completely and actually depriving or dispossessing oneself of his right or title to it in favor of a person or persons other than his spouse and relatives as defined in this Act.

C. "Relatives" refers to any and all persons related to a public official or employee within the fourth civil degree of consanguinity or affinity, including bilas, inso and balae.

Prohibited Acts and Transactions (sec.

7):

A. Public officials and employees shall not have any financial or material interest in any transaction requiring the approval of their office.

B. Public officials and employees during their incumbency shall not:

1. Own, control, manage or accept employment as officer, employee, consultant, counsel, broker,

agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law;

2. Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or 3. Recommend any person to any

position in a private enterprise which has a regular or pending official transaction with their office.

C. Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either:

1. To further their private interests, or give undue advantage to anyone; or 2. to prejudice the public

interest.

D. Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.

Gifts or grants from foreign governments:

A. The acceptance and retention by a public official or employee of a gift of nominal value tendered and received as a souvenir or mark of courtesy;

B. The acceptance by a public official or employee of a gift in the nature of a scholarship or fellowship grant or medical treatment; or

C. The acceptance by a public official or employee of travel grants or expenses for travel taking place entirely outside the Philippine

(such as allowances,

transportation, food, and lodging) of more than nominal value if such acceptance is appropriate or consistent with the interests of the Philippines, and permitted by the head of office, branch or agency to which he belongs.

Ø These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation from public office, except in the case

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VII. CRIMES COMMITTED BY PUBLIC OFFICERS CRIMINAL LAW II

of subparagraph (b) (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply.

Divestment (sec 9):

Ø When a conflict of interest arises, he shall resign from his position in any private business enterprise within thirty (30) days from his assumption of office and/or divest himself of his shareholdings or interest within sixty (60) days from such assumption.

Ø The same rule shall apply where the public official or employee is a partner in a partnership.

B. Frauds and Illegal Exactions and Transactions

Elements of frauds against public treasury under paragraph 1

1. Offender is a public officer;

2. He has taken advantage of his office, that is, he intervened in the transaction in his official capacity;

3. He entered into an agreement with any interested party or speculator or made use of any other scheme with regard to:

a. furnishing supplies

b. the making of contracts, or

b. the making of contracts, or

In document Criminal Law 2 Reviewer (Page 53-58)