E. Anti-Graft and Corrupt Practices Act (RA 3019, as amended by BP 195 and RA 10910)

F. Title Seven - Crimes Committed by Public Officers (Articles 203-245)

• Anti-Graft and Corrupt Practices Act – R.A. No. 3019, as amended by B.P. Blg. 195 and R.A. No. 10910, secs. 2-6, 9 and 11
• Anti-Plunder Act – R.A. No. 7080, as amended by R.A. No. 7659
• Definition of Terms – Section 1
• Definition of the Crime of Plunder – Section 2
• Series and Combination
• Pattern
• Wheel and Chain Conspiracy

Persons liable:

• Public officer who become interested in any contract or business in which it is his official duty to intervene;
• Experts, arbitrators and private accountants who take part in any contract or transaction connected with the estate or property in the approval, distribution or adjudication of which they had acted; and
• Guardians and executors with respect to property belonging to their wards or the estate

Notes:

• Actual fraud is not necessary.
• Intervention must be by virtue of public office held.
• Act is punished because of the possibility that fraud may be committed or that the officer may place his own interest above that of the Government or of the party which he represents.
• Pertinent Constitutional prohibitions:
• Member of Congress cannot personally appear as counsel; cannot be interested financially in any franchise or special privilege granted by government; cannot intervene in any matter before any office of Government for personal pecuniary benefit or where the member may be called upon to act on account of the office (1987 Constitution, Art. VI, Sec. 14);
• The President, Vice-President, Cabinet members, and their deputies or assistants cannot hold any other office or employment during their tenure, unless otherwise provided in the Constitution (1987 Constitution, Art. VII, Sec. 13); and
• Members of Constitutional Commissions cannot hold any other office, or engage in practice of profession or management of business, or be financially interested in a contract with, or franchise/privilege by, the government.

PUNISHABLE ACTS

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:

• 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. Note: The persuasion need not be successful.
• 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.

Notes:

• Sec. 3(b) of R.A. No. 3019, refers to a public officer whose official intervention is required by law in a contract or transaction (Jaravata v. Sandiganbayan G.R. L-56170, 1984)
• Lack of “demand” is immaterial since the provision uses the word “or” between requesting and receiving.
• 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 is not sufficient that the crime has been committed. (Peligrino v. People G.R. 136266, 2001)
• Conspiracy by silence and inaction occurs when the accused are all heads of their respective offices that perform interdependent functions in the processing of cash advances and, exhibit an attitude of “buck- passing” [the practice of shifting the responsibility for something to someone else] in the face of the irregularities (Jaca v. People, G.R. No. 166967, 2013)
• There is no identity nor necessary inclusion between the crime of direct bribery as defined and punished under Art. 210 of the RPC and a violation of Sec. 3(b) of R.A. No. 3019.

The violation of Section 3 (b) of R.A. No. 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 R.A. No. 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 R.A. No. 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.

Although the two charges against petitioner stemmed from the same transaction, the same act gave rise to two separate and distinct offenses. No double jeopardy attached since there was a variance between the elements of the offenses charged. (Merecillo v. People, G.R. No. 142369-70, 2007)

• An investigation conducted by a public officer is not considered as a “contract or transaction” within the ambit of Sec. 3(b) of R.A. No. 3019. A transaction, like a contract, is one which involves some consideration as in credit transactions and this elements (consideration) is absent in investigations. (Soriano Jr. v. Sandiganbayan, G.R. No. L-65952, July 31, 1984)
• 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 this Act.
• 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.
• 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.

Notes:

• A violation of this provision may be committed either by dolo, as when the accused acted with evident bad faith or manifest partiality, or by culpa as when the accused acted with gross inexcusable negligence (Jaca v. People, G.R. No. 166967, 2013)
• Manifest Partiality – synonymous with "bias" (Eusebio v. Fonacier, G.R. No. L-50691, 1994)
• Bad faith – imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; it partakes of the nature of fraud (Eusebio v. Fonacier, G.R. No. L-50691, 1994)
• Gross negligence – 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 willfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected (Eusebio v. Fonacier, G.R. No. L-50691, 1994)
• The inclusion of all the modes of violating Section 3(e) of R.A. 3019 in the charge sheet is not equivalent to charging the accused with 3 acts. The use of the three phrases "manifest partiality," "evident bad faith" and "gross inexcusable negligence" in the same information does not mean that the indictment charges three distinct offenses but only implies that the offense charged may have been committed through any of the modes provided by the law (Eusebio v. Fonacier, G.R. No. L-50691, 1994)
• There is no attempted or frustrated stage of the crime defined in Sec. 3(e) of R.A. No. 3019.
• The plain language of both Information indicate that X was charged with violating Section 3 (e) of R.A. 3019 through the modality of evident bad faith. Against and inconsistent with this singular modality as charged, however, the Sandiganbayan's conviction of X significantly grounded its finding of fault on the discussion of X’s gross negligence. Sandiganbayan convicted X on the modality of gross inexcusable negligence, which is separate and distinct from the modality of evident bad faith X was charged with in the Information. This stark variance, as correctly pleaded by X, is violative of his constitutional right to due process, specifically his right to be informed of the nature of the accusation against him. (Buencamino v. People, G.R. Nos. 216745-46, 2020).
• Even if there were irregularities on the procurement, the establishment of the elements of Section 3 (e) of R.A. 3019 beyond reasonable doubt is indispensable for the prosecution of the said crime. For failing to establish all the elements, the accused officers is acquitted. (Martel v. People of the Philippines, G.R. No. 224720- 23 & , February 2, 2021.)
• There is no showing that the act of petitioner was done through manifest partiality, evident bad faith, or gross inexcusable negligence, or that she gave any unwarranted benefit, advantage or preference to another, or that undue injury was caused to the government. Under Section 3(e) of RA 3019, manifest partiality, evident bad faith, and gross inexcusable negligence are alternative modes; proof of fraudulent intent is not invariably required when the charged mode is gross inexcusable negligence. Chung's discussion of fraudulent intent and corrupt motives concerns the circumstances of that case (Chung v. Office of the Ombudsman, G.R. No. 239871, 18 March 2021).
• Evident bad faith "contemplates a state of mind affirmatively operating with furtive design or with some motive of self-interest or ill will or for ulterior purposes." On the other hand, partiality is synonymous with bias which "excites a disposition to see and report matters as they are wished for rather than as they are." There is "manifest partiality" when there is a clear, notorious, or plain inclination or predilection to favor one side or person rather than another. , petitioners were able to show that their resort to direct purchase for the questioned transactions was based on their honest belief that the same was warranted under the circumstances. Petitioners explained that the questioned transactions were emergency purchases, and following DOHNCR's policy of adopting the results of the previous winning bidder, the subject medicines were procured from Aegis and Lumar, who were the winning bidders in the bidding conducted by DOH-NCR for the years 1995 and 1994, respectively (Macairan v. People, G.R. Nos. 215104, 215120, 215147, 215212, 215354-55, 215377, 215923 & 215541, 18 March 2021).
• In other words, the Sandiganbayan's finding of evident bad faith and manifest partiality on the part of petitioners was primarily anchored on the procurement of allegedly overpriced medicines without the benefit of a public bidding.
• In other words, the Sandiganbayan's finding of evident bad faith and manifest partiality on the part of petitioners was primarily anchored on the procurement of allegedly overpriced medicines without the benefit of a public bidding.
• Public officers could not be held liable for the acts of their dishonest or negligent subordinates because they failed to personally examine each detail of the transaction before affixing their signatures in good faith. (Arias v. Sandiganbayan, G.R. No. 81563, 1989)
• The doctrine in Arias does not shield heads of offices from liability for gross and inexcusable negligence in performing duties primarily vested in them by law, resulting in undue injury. The good faith of heads of offices in signing a document will only be appreciated if they, with trust and confidence, have relied on their subordinates in whom the duty is primarily lodged. (Sanchez v. People, G.R. No. 187340, 2013)
• 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.
• 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.