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M. Anti-Graft and Corrupt Practices Act

1. CONCEPTS

“Government” – includes the national government, the local governments, the government-owned and government-controlled corporations, and all other instrumentalities or agencies of the Republic of the Philippines and their branches. (Section 2[a], R.A. 3019, Anti-Graft and Corrupt Practices Act, as amended)

“Public officer” – includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government as defined in the preceding subparagraph. (Section 2[b], Ibid.)

“Person” – includes natural and juridical persons, unless the context indicates otherwise. (Section 2[d], Ibid.)

 “Receiving any gift” – includes the act of accepting directly or indirectly a gift from a person other than a member of the public officer’s immediate family, in behalf of himself or of any member of his family or relative within the fourth civil degree, either by consanguinity or affinity, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the circumstances manifestly excessive. (Section 2[c], Ibid.)

2.CRIMES

a. Corrupt practices of public officers

In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

1) 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. (Section 3[a], Ibid.)

ELEMENTS OF THE CRIME:

1) The offender is a public officer;

2) The offender persuades, induces, or influences another public officer to perform an act or the offender allows himself to be persuaded, induced, or influenced to commit an act; and,

3) The act performed by the other public officer or committed by the offender constitutes a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duty of the latter. (Ampil v. Office of the Ombudsman, G.R. No. 192685, 31 July 2013)

2) 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 part, wherein the public officer in his official capacity has to intervene under the law. (Section 3[b], Ibid.)

ELEMENTS OF THE CRIME:

1) The offender is a public officer;

2) He requested or received a gift, present, share, percentage or benefit;

3) He made the request or receipt on behalf of the offender or any other person;

4) The request or receipt was made in connection with a contract or transaction with the government and,

5) He has the right to intervene, in an official capacity under the law, in connection with a contract or transaction has the right to intervene. (Merencillo v. People, G.R. Nos. 142369-70, 13 April 2007)

3 MODES OF COMISSION: Section 3(b) penalizes three distinct acts:

1) Demanding or requesting;

2) Receiving; or,

3) Demanding, requesting and receiving

– any gift, present, share, percentage, or benefit for oneself or for any other person, in connection with any contract or transaction between the government and any other party, wherein a public officer in an official capacity has to intervene under the law. Each of these modes of committing the offense is distinct and different from one another. Proof of existence of any of them suffices to warrant conviction. (Cadiao-Palacios v. People, G.R. No. 168544, 31 March 2009)

CONCEPT OF TRANSACTION: A transaction like a contract, is one which involves some consideration as in credit transactions. (People v. Sandiganbayan, G.R. No. 188165, 11 December 2013)

SPECIFIC CONTRACTS OR TRANSACTIONS: Section 3 (b) of RA 3019 is specific. It is limited only to contracts or transaction involving monetary consideration where the public officer has authority to intervene under the law. Thus, the requesting or demanding of any gift, present, share, percentage, or benefit covered by said Section 3(b) must be in connection with a “contract or transaction” involving “monetary consideration” with the government wherein the public officer in his official capacity has to intervene under the law. (Ibid.)

CLEAR INTENT TO RECEIVE: There must be a clear intention on the part of the public officer to take the gift so offered and consider it as his or her own property from then on. Mere physical receipt unaccompanied by any other sign, circumstance or act to show acceptance is not sufficient to lead the court to conclude that the crime has been committed. To hold otherwise would encourage unscrupulous individuals to frame up public officers by simply putting within their physical custody some gift, money or other property. (Peligrino v. People, G.R. No. 136266, 13 August 2001)

a) Contrasted with Bribery

BRIBERY’S ELEMENTS OF THE CRIME:

1) The offender is a public officer;

2) The offender accepts an offer or promise or receives a gift or present by himself or through another;

3) Such offer or promise be accepted or gift or present be received by the public officer with a view to committing some crime, or in consideration of the execution of an act which does not constitute a crime but the act must be unjust, or to refrain from doing something which it is his official duty to do; and,

4) The act which the offender agrees to perform or which he executes is connected with the performance of his official duties. (Ibid.)

CONTRASTING SECTION 3[b] WITH BRIBERY: The violation of Section 3(b) of RA 3019 is neither identical nor necessarily inclusive of direct bribery. While they have common elements, not all the essential elements of one offense are included among or form part of those enumerated in the other. Whereas the mere request or demand of a gift, present, share, percentage or benefit is enough to constitute a violation of Section 3(b) of RA 3019, acceptance of a promise or offer or receipt of a gift or present is required in direct bribery. Moreover, the ambit of Section 3(b) of RA 3019 is specific. It is limited only to contracts or transactions involving monetary consideration where the public officer has the authority to intervene under the law. Direct bribery, on the other hand, has a wider and more general scope: (a) performance of an act constituting a crime; (b) execution of an unjust act which does not constitute a crime and (c) agreeing to refrain or refraining from doing an act which is his official duty to do.

SAME; ONE ACT/TRANSACTION, TWO OFFENSES: The same act/transaction may gave rise to two separate and distinct offenses. (Ibid.)

SAME; SAME; NO DOUBLE JEOPARDY: No double jeopardy attached since there is a variance between the elements of the offenses charged. The constitutional protection against double jeopardy proceeds from a second prosecution for the same offense, not for a different one. (Ibid.)

3) 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 or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of R.A. 3019. (Section 3[c], Ibid.)

ELEMENTS OF THE CRIME:

1) The offender is a public officer;

2) He has secured or obtained, or would secure or obtain, for a person any government permit or license;

3) He directly or indirectly requested or received from said person any gift, present or other pecuniary or material benefit for himself or for another; and,

4) He requested or received the gift, present or other pecuniary or material benefit in consideration for help given or to be given. (Mendoza-Ong v. Sandiganbayan, G.R. Nos. 146368-69, 23 October 2003)

GIFT’S VALUE, IRRELEVANT: Section 3 (c) applies regardless of whether the gift’s value is manifestly excessive or not, and regardless of the occasion. What is important here is whether the gift is received in consideration for help given or to be given by the public officer. The value of the gift is not mentioned at all as an essential element of the offense charged under Section 3 (c), and there appears no need to require the prosecution to specify such value in order to comply with the requirements of showing a prima facie case. (Ibid.)

4) 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. (Section 3[d], Ibid.)

ELEMENTS OF THE CRIME:

1) That the accused is a public officer;

2) He or she accepted or has a member of his or her family who accepted employment in a private enterprise; and,

3) Such private enterprise has a pending official business with the public officer during the pendency of official business or qithin one year from its termination. (Villanueva v. People, G.R. No. 237864, 08 July 2020)

FAMILY; INCLUDES CONSANGUINITY OR AFFINITY: Family relation is defined under Section 4 of R.A. No. 301923 which, according to the said section, “shall include the spouse or relatives by consanguinity or affinity in the third civil degree.” Thus, we need not look beyond the provisions of R.A. No. 3019 to hold that a brother-in-law falls within the definition of family under Section 3(d) thereof. (Valera v. Ombudsman, G.R. No. 167278, 27 February 2008)

REGARDLESS IF FOR-PROFIT OR NOT, STOCK OR NON-STOCK: The section applies regardless if the enterprise is for profit or not, stock or non-stock, the law does not distinguish. (Villanueva v. People, supra.)

5) 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 functions 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. (Section 3[e], Ibid.)

ELEMENTS OF THE CRIME:

1) The offender is a public officer;

2) The act was done in the discharge of the public officer’s official, administrative or judicial functions;

3) The act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and,

4) The public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits, advantage or preference. (Ampil v. Office of the Ombudsman, supra.)

3 MODES OF COMMISSION:

(a) “manifest partiality”;

(b) “evident bad faith”; and/or,

(c) “gross negligence.” (Fuentes v. People, G.R. No. 186421, 17 April 2017)

PARTIALITY: “Partiality” is synonymous with “bias” which “excites a disposition to see and report matters as they are wished for rather than as they are.” ” (Coloma, Jr. v. Sandiganbayan, G.R. No. 205561, 24 September 2014)

BAD FAITH: Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. (Ibid.)

GROSS NEGLIGENCE: Gross negligence has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property. (Ibid.)

CONSUMMATED ONLY; NO ATTEMPT NOR FRUSTRATED: There are two principal reasons why Section 3(e) of R.A. No. 3019, as amended, can be said to penalize only consummated offenses. Firstly, the penalty imposed therefor per Section 9 is “imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income.” The imposable imprisonment penalty does not have the nomenclature and duration of any specific penalty in the Revised Penal Code. Accordingly, there can be no valid basis for the application of, inter alia, Articles 50 and 51 on the penalty to be imposed on the principal of a frustrated and attempted felony. The penalty of perpetual disqualification is only from office, unlike either the perpetual absolute and perpetual special disqualifications under Articles 30 and 31 of the Revised Penal Code. Secondly, the third requisite of Section 3(e), viz., “causing undue injury to any party, including the government,” could only mean actual injury or damage which must be established by evidence. The word causing is the present participle of the word cause. As a verb, the latter means “to be the cause or occasion of; to effect as an agent; to bring about; to bring into existence; to make to induce; to compel.” The word undue means “more than necessary; not proper; illegal.” And the word injury means “any wrong or damage done to another, either in his person, rights, reputation or property. The invasion of any legally protected interest of another.” Taken together, proof of actual injury or damage is required. (Pecho v. Sandiganbayan, G.R. No. 111399, 14 November 1994)

6) 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 or giving undue advantage in favor of or discriminating against any other interested party. (Section 3[f], Ibid.)

ELEMENTS OF THE CRIME:

1) The offender is a public officer;

2) The said officer has neglected or has refused to act without sufficient justification after due demand or request has been made on him;

3) Reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him; and,

4) Such failure to so act is for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party, or discriminating against another. (Lacap v. Sandiganbayan, G.R. No. 198162, 21 June 2017)

UNLAWFUL PURPOSE: To warrant conviction for a violation of Section 3 (f) of the Anti-Graft and Corrupt Practices Act, the law itself additionally requires that the accused’s dereliction, besides being without justification, must be for the purpose of (a) obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party or (b) discriminating against another interested party. The severity of the penalty imposed by the law leaves no doubt that the legislative intent is to consider this element to be indispensable. (Conrado v. Sandiganbayan, En Banc, G.R. No. 94955, 18 August 1993)

7) 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. (Section 3[g], Ibid.)

ELEMENTS OF THE CRIME:

1) That the accused is a public officer;

2) That he entered into a contract or transaction on behalf of the government; and,

3) That such contract or transaction is grossly and manifestly disadvantageous to the government. (Go v. Sandiganbayan, G.R. No. 172602, 13 April 2007)

APPLIES TO PRIVATE PERSONS: Section 3(g) applies to both public officers and private persons. (Ibid.)

SAME; VIA CONSPIRACY: If two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. (People v. Go, En Banc, G.R. No. 168539, 25 March 2014)

a) Criminal liability of private person

GENERAL RULE: Before a private person may be indicted for violation of Section 3(g) of R.A. 3019, such private person must be alleged to have acted in conspiracy with a public officer. (Ibid.)

EXCEPTION: The law, however, does not require that such person must, in all instances, be indicted together with the public officer. If circumstances exist where the public officer may no longer be charged in court, as the public officer has already died, the private person may be indicted alone. (Ibid.)  

8) Directly or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. (Section 3[h], Ibid.)

9) 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. (Section 3[i], Ibid.)

ELEMENTS OF THE CRIME:

1) The accused is a public officer;

2) He has a direct or indirect financial or pecuniary interest in any business, contract, or transaction; and,

3) He either (a) intervenes or takes part in his official capacity in connection with such interest, or (b) is prohibited from having such interest by the Constitution or by any law. (Caballero v. Sandiganbayan, G.R. Nos. 137355-58, 25 September 2007)

2 MODES OF COMMISSION:

1) When the public officer intervenes or takes part in his official capacity in connection with his financial or pecuniary interest in any business, contract or transaction; or,

2) When he is prohibited from having such an interest by the Constitution or by law. (Ibid.)

PRESUMPTION OF INTEREST FOR PERSONAL GAIN: Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. (Paragraph 2, Section 3[i], Ibid.)

10) 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. (Section 3[j], Ibid.)

11) 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. (Section 3[k], Ibid.)

b. Gift-giver’s joint liability

The person giving the gift, present, share, percentage or benefit referred to in Nos. 2 and 3; or offering or giving to the public officer the employment mentioned in No. 4; or urging the divulging or untimely release of the confidential information referred to in No. 11 of this section shall, together with the offending public officer, be punished under Section nine of R.A. 3019 and shall be permanently or temporarily disqualified in the discretion of the Court, from transacting business in any form with the Government. (Section 3, Ibid.)

2. PROHIBITIONS

a. Prohibition on private individuals

1) It shall be unlawful for any person having family or close personal relation with any public official to 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 other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word “close personal relation” shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer. (Section 4[a], Ibid.)

ELEMENTS OF THE CRIME:

1) That the offender has family or close personal relation with a public official;

2) That he capitalizes or exploits or takes advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift, material or pecuniary advantage from any person having some business, transaction, application, request or contract with the government; and,

3) That the public official with whom the offender has family or close personal relation has to intervene in the business transaction, application, request, or contract with the government. (Disini v. Sandiganbayan, G.R. Nos. 169823-24, 174764-65, 11 September 2013)

2) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof. (Section 4[b], Ibid.)

b. Prohibition on certain relatives

It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government: Provided, That this section shall not apply to 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 Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the exercise of a profession. (Section 5, Ibid.)

c. Prohibition on Members of Congress

It shall be unlawful hereafter for any Member of the Congress during the term for which he has been elected, to acquire or receive any personal pecuniary interest in any specific business enterprise which will be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by the Congress during the same term. (Section 6, Ibid.)

The provision of this section shall apply to any other public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution, and acquires or receives any such interest during his incumbency. (Paragraph 2, Section 6, Ibid.)

It shall likewise be unlawful for such member of Congress or other public officer, who, having such interest prior to the approval of such law or resolution authored or recommended by him, continues for thirty days after such approval to retain such interest. (Paragraph 3, Section 6, Ibid.)

3. UNEXPLAINED WEALTH

GROUND FOR DISMISSAL OR REMOVAL: If in accordance with the provisions of R.A. 1379, 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, that fact shall be a ground for dismissal or removal. (Section 8, Ibid.)

SAME; PROPERTIES: 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. (Ibid.)

SAME; BANK DEPOSITS: 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 our of proportion to legitimate income, shall likewise be taken into consideration in the enforcement of this section, notwithstanding any provision of law to the contrary. (Ibid.)

ADMINISTRATIVE LIABILITY: The circumstances hereinabove mentioned shall constitute valid ground for the administrative suspension of the public official concerned for an indefinite period until the investigation of the unexplained wealth is completed. (Ibid.)

4. PENALTIES

1) any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of R.A. 3019 shall be punished with imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income. (Section 9[a], Ibid.)

Any complaining party at whose complaint the criminal prosecution was initiated shall, in case of conviction of the accused, be entitled to recover in the criminal action with priority over the forfeiture in favor of the Government, the amount of money or the thing he may have given to the accused, or the fair value of such thing. (Paragraph 2, Section 9[a], Ibid.)

2) Any public officer violating any of the provisions of Section 7 of R.A. 3019 shall be punished by a fine of not less than one thousand pesos nor more than five thousand pesos, or by imprisonment not exceeding one year six months, or by both such fine and imprisonment, at the discretion of the Court.1âwphi1(Section 9[b], Ibid.)

The violation of said section proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public officer, even if no criminal prosecution is instituted against him. (Paragraph 2, Section 9[b], Ibid.)

Section 12. Termination of office. No public officer shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under R.A. 3019 or under the provisions of the Revised Penal Code on bribery. (Section 12, Ibid.)

SUSPENSION AND LOSS OF BENEFITS FOR INCUMBENTS: Any incumbent public officer against whom any criminal prosecution under a valid information under R.A. 3019 or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as complex offense and in whether stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. (Section 15, Ibid.)

In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government. (Paragraph 2, Section 15, Ibid.)

EXCEPTION; GIFTS OF SMALL OR INSIGNIFICANT VALUE: Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage, shall be excepted from the provisions of R.A. 3019. (Section 14, Ibid.)

PRIVATE PRACTICE WHEN ALLOWED BY LAW: Nothing in R.A. 3019 shall be interpreted to prejudice or prohibit the practice of any profession, lawful trade or occupation by any private person or by any public officer who under the law may legitimately practice his profession, trade or occupation, during his incumbency, except where the practice of such profession, trade or occupation involves conspiracy with any other person or public official to commit any of the violations penalized in R.A. 3019. (Paragraph 2, Section 14, Ibid.)

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