CRIMES COMMITTED BY PUBLIC OFFICERS

PUBLIC OFFICE

A public office is the right, authority and duty created and conferred by
law, by which for a given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with some
portion of the sovereign functions of the state to be exercised by him
for the benefit of the body politic. The individual so invested is a
public officer.

"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.
(RA3019 2(b)

In Montilla v. Hilario (Montilla v. Hilario 90 Phil 49, (1951)), the Supreme

Court laid down the principle that for an offense to be committed in
relation to the office, the relation between the crime and the office
must be direct and not accidental, in that in the legal sense, the
offense can not exist without the office.

As an exception to Montilla, this Court, in People v. Montejo (People v.

Montejo 108 Phil 613 (1960)., held that although public office is not an
element of an offense charged, as long as the offense charged in the
information is intimately connected with the office and is alleged to
have been perpetrated while the accused was in the performance,
though improper or irregular, of his official functions, there being no
personal motive to commit the crime and had the accused would not
have committed it had he not held the aforesaid office, the accused is
held to have been indicted for “an offense committed in relation” to his
office.

CRIMES COMMITTED BY PUBLIC OFFICERS

I. Under the Revised Penal Code

Chapter III:
FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS
Art. 213. Frauds against the public treasury and similar
offenses
Art. 214 . Other frauds
Art. 215. Prohibited Transactions
Art. 216. Possession of prohibited interest by a public officer

Elements of frauds against public treasury

• That the offender be a public officer.

• That he should have taken advantage of his office, that is, he
intervened in the transactions in his official capacity.
• That he entered into an agreement with any interested
party or speculator or made use of any other schemes
with regard to furnishing of supplies, making contracts or the
adjustment or settlement of accounts relating to public property
or funds.
• That the accused had intent to defraud the Government.

Elements of Illegal exactions:

• The offender is a public officer entrusted with the collection

of taxes, licenses, fees and other imposts.
• He is guilty of any of the following acts or omission:
– Demanding, directly or indirectly, the payment of sums
different from or larger that those authorized by law; or
– Failing voluntarily to issue a receipt, as provided by law,
for any sum of money collected by him officially; or
– Collecting or receiving, directly or directly by way of
payment or otherwise, things or objects of a nature
different from that provided by law.

Frauds against the public treasury and similar offenses.

• The penalty of prision correccional in its medium period to prision
mayor in this minimum period, or a fine ranging from 200 to
10,000.00 pesos, or both:

1. In his official capacity, in dealing with any person with regard to

furnishing supplies, making of contracts, or the adjustment or
settlement of accounts relating to public property or funds, shall enter
into an agreement with any interested party or speculator or make use
of any other scheme, to defraud the Government:

Frauds against the public treasury and similar offenses.

2. Being entrusted in the collection of taxes, licenses, fees, and
other imposts, shall be guilty of any of the following acts or
omissions:
– Demanding, directly or indirectly, the payment of sums
different from or larger than those authorized by law;
 – Failing voluntarily to issue receipt, as provided by law, for
any sum of money collected by him officially;
– Collecting or receiving, directly or indirectly, by way of
payment or otherwise, things or objects of a nature
different from that provided by law.

Art.214
Other frauds
• In addition to the penalties prescribed in Chapter six, Title Ten,
Book II of this Code, the penalty of temporary special
disqualification shall be imposed upon any public officer who,
taking advantage of his official position, shall commit any of the
frauds or deceits enumerated in said provisions. (ESTAFA or
SWINDLING)

Elements of Estafa in General

• That the accused defrauded another

a. by abuse of confidence, or
b. by means of deceit
• That damage or prejudice capable of pecuniary estimation is
caused to the offended party or third person.

Art. 215
Prohibited Transactions
• consummated by any appointive public officer who, during his
incumbency, shall directly or indirectly become interested in any
transaction of exchange or speculation within the territory
subject to his jurisdiction. The penalty of prision correccional in
its minimum period or fine ranging 200 to 1,000 pesos, or both.

Elements of Prohibited Transactions

• The offender is an appointive public officer.

• Becomes interested, directly or indirectly, in any transactions of
exchange or speculations such as buying and selling of stocks,
commodities, land etc. hoping to take advantage of an expected
rise or fall in price. Buying regularly securities for resale is a
speculation.
• The transaction takes place within the territory subject to his
jurisdiction.
• Took place during his incumbency.
Art. 216
Possession of prohibited interest by a public officer

• The penalty of arresto mayor in its medium period, or a fine

ranging from 200 to 1,000 pesos, or both shall be imposed upon
a public officer who directly or indirectly, shall become interested
in any contract or business in which it is his official duty to
intervene.

• This provision is applicable to experts, arbitrators and private

accountants who, in like manner, shall take part in any contract
or transaction connected with the estate or property in appraisal
distribution or adjudication of which they shall have acted, and to
the guardians and executors with respect to the property
belonging to their wards or estate.

Who are liable for possession of prohibited interest?

• Public officer who, directly or indirectly became interested in

any contract or business in which it is his official duty to
intervene.
• Expert, arbitrators, and private accountants who, in like
manner, took part in any contract or transactions connected with
the estate or property in the appraisal, distribution or
adjudication of which they had acted.
• Guardians and executors with respect to the property belonging
tot heir wards or the estate.

CHAPTER IV
MALVERSATION OF PUBLIC FUNDS OR PROPERTY

Art. 217. Malversation of public funds or property;

Presumption of malversation
Art. 218. Failure of accountable officer to render accounts
Art. 219. Failure of a responsible public officer to render
accounts before leaving the country
Art. 220. Illegal use of public funds or property
Art. 220. Failure to make delivery of public funds or property

Art. 217.
Malversation of public funds or property; Presumption of malversation

• Any public officer who, by reason of the duties of his office, is

accountable for public funds or property, shall appropriate the
 same, or shall take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other person to
take such public funds or property, wholly or partially, or shall
otherwise be guilty of the misappropriation or malversation of
such funds or property, shall suffer:
1. The penalty of Prision correccional in its medium and
maximum periods if the amount involved in the
misappropriation or malversation does not exceed 200
pesos.

2. The penalty of prision mayor in its minimum and medium periods if

the amount involved is more than 200 but does not exceeds Php
6,000.00
3. The penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period, if the amount is more than Php
6,000.00 but is less than Php12,000
4. The penalty of reclusion temporal in its medium and maximum
periods,if the amount involved is more than Php12,000 but is less than
Php 22,000. If the amount exceeds the latter, the penalty shall be
reclusion temporal in its maximum period to reclusion perpetua.

The crime of malversation of public funds or property is defined as

follows:

ART. 217. Malversation of public funds or property. - Presumption of

malversation .— Any public officer who, by reason of the duties of his
office, is accountable for public funds or property, shall appropriate the
same, or shall take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other person to take
such public funds or property, wholly or partially, or shall otherwise be
guilty of the misappropriation or malversation of such funds or
property, xxx.

xxx xxx xxx

The failure of the public officer to have duly forthcoming such public
funds or property, upon demand by a duly authorized officer, shall be
prima facie evidence that he has put such missing funds or property to
personal use.

The elements of malversation, essential for the conviction of an

accused under the above penal provision are:

1. That the offender is a public officer;

 2. That he has the custody or control of funds or property by
reason of the duties of his office;
3. That the funds or property are public funds or property for
which he is accountable; and
4. That he appropriated, took, misappropriated or consented or
through abandonment or negligence, permitted another person to take
them.Diego v. Sandiganbayan, 339 SCRA 592, 603 [2000], citing
Salamera v. Sandiganbayan, 217 SCRA 303 [1999].

An accountable public officer, within the purview of Article 217 of the

Revised Penal Code, is one who has custody or control of public funds
or property by reason of the duties of his office. To be liable for
malversation, an accountable officer need not be a bonded official.
The name or relative importance of the office or employment is not the
controlling factor. What is decisive is the nature of the duties that he
performs and that as part of, and by reason of said duties, he receives
public money or property which he is bound to account. (Pablo Quinon
vs. People, GR. 136462, September 19, 2002)

Art. 217.
Malversation of public funds or property; Presumption of malversation

• In all cases, persons guilty of malversation shall also suffer the

penalty of perpetual special disqualification and a fine equal to
the amount of the funds malversed or equal to the total value of
the property embezzled.

• The failure of a public officer to have duly forthcoming any public

funds or property with which he is chargeable, upon demand by
any duly authorized officer, shall be prima facie evidence that he
has put such missing funds or property to personal uses.

Elements common to all acts of malversation

• The offender is a public officer who has the custody or control of
funds or property by reason of the duties of his office and which
funds or property were public funds or property which he was
accountable.
• That he appropriated, took, misappropriated or consented or
through abandonment or negligence, permitted another person
to take them.

In Madarang vs. Sandiganbayan, GR. No. 112314, March 28,

2001, 355 SCRA 525, it was held:
 Concededly, the first three elements are present in
the case at bar. Lacking any evidence, however, of
shortage, or taking, appropriation, or conversion by
petitioner or loss of public funds, there is no malversation
(Narciso vs. Sandiganbayan, 229 SCRA 229 [1994]). True,
the law creates a presumption that the mere failure of an
accountable officer to produce public funds which have
come into his hand on demand by an officer duly
authorized to examine his accounts is prima facie evidence
of conversion. The presumption is, of course, rebuttable.
Accordingly, if petitioner is able to present adequate
evidence that can nullify any likelihood that he had put the
funds or property to personal use, then that presumption
would be at an end and the prima facie case is effectively
negated.

In Agullo vs. Sandiganbayan, GR. No. 132926, July 20, 2001, 361 SCRA
556:

Thus, in a string of categorical pronouncements, this

Court has consistently and emphatically ruled that the
presumption of conversion incarnated in Article 217,
paragraph (4) of the Revised Penal Code is — by its very
nature — rebuttable. To put it differently, the presumption
under the law is not conclusive but disputable by
satisfactory evidence to the effect that the accused did not
utilize the public funds or property for his personal use,
gain or benefit.

Accordingly, if the accused is able to present

adequate evidence that can nullify any likelihood that he
had put the funds or property to personal use, then that
presumption would be at an end and the prima facie case
is effectively negated. This Court has repeatedly said that
when the absence of funds is not due to the personal use
thereof by the accused, the presumption is completely
destroyed; in fact, the presumption is never deemed to
have existed at all.
Presumption of malversation

“The failure of a public officer to have duly forthcoming any

public funds or property with which he is chargeable, upon
demand by any duly authorized officer shall be prima facie
evidence that he has put such missing funds or property to
personal uses (emphasis supplied).” (Art. 217 last par.)

A “presumption of law” is sanctioned by a statute prescribing that “a

certain inference must be made whenever facts appear which furnish
the basis of the interference.” This is to be set apart from a
“presumption of fact” which is a “[conclusion] drawn from particular
circumstances, the connection between them and the sought for fact
having received such a sanction in experience as to have become
recognized as justifying the assumption.” When there is a presumption
of law, the onus probandi (burden of proof), generally imposed upon
the State, is now shifted to the party against whom the interference is
made to adduce satisfactory evidence to rebut the presumption and
hence, to demolish the prima facie case. (Robert Wa-acon vs. People,
GR NO. 164575)

Art. 218.
Failure of accountable officer to render accounts

Any public officer, whether in service or separated therefrom by

resignation or any other cause, who is required by law or regulation to
render accounts to the Commission on Audit, or to provincial auditor
and who fails to do so for a period of two (2) months after such
accounts should be rendered, shall be punished by prision correccional
in its minimum period, or by a fine ranging 200 to 6,000 pesos or both.

Elements

• That the offender is a public officer, whether in the service or

separated therefrom.
• That he must be an accountable officer for public funds or
property.
• That he is required by law or regulation to render accounts to the
Commission on Audit, or to a provincial auditor.
• That he fails to do so for a period of two (2) months after such
accounts should be rendered.
Is prior demand by COA to public officer necessary to render an
account the latter liable under Art. 218?

Answer: No. (Rosulo Lopez Manlangit vs. People, GR. No. 158014,
August 28, 2007)

Art. 219.
Failure of a responsible public officer to render accounts before leaving
the country

Any public officer who unlawfully leaves or attempts to leave the

Philippine Islands without securing a certificate from the Commission
on Audit showing that his accounts have been finally settled, shall be
punished by arresto mayor, or a fine ranging from 200 to 1,000 pesos,
or both
Art. 220.
Illegal use of public funds or property

• Any public officer who shall apply any public funds or property
under his administration to any public use other than that for
which such funds or property were appropriated by law or
ordinance shall suffer the penalty of prision correccional in its
minimum period or a fine ranging from one-half to the total value
of the sum misapplied, if by reason of such misapplication any
damage or embarrassment shall have resulted to the public
service. In either case, the offender shall also suffer the penalty
of temporary special disqualification.

• If no damage or embarrassment to the public service has

resulted, the penalty shall be a fine from 5 to 50 percent of the
sum misapplied.

Elements

• That the offender is a public officer

• That there is a public fund or property under his administration
• That such public fund or property has been appropriated by law
or ordinance.
• That he applies the same to a public use other than that for
which such fund or property has been appropriated by law or
ordinance.

Armando Tetangco vs. Ombudsman and Mayor Atienza, GR 156427,

January 20, 2006
Art. 221.
Failure to make delivery of public funds or property
Any public officer under obligation to make payment from Government
funds in his possession, who shall fail to make such payments, shall be
punished by arresto mayor and a fine of from 5 to 25% of the sum
which he failed to pay.

This provision shall apply to any public officer who, being ordered by
competent authority to delivery any property in his custody or under
his administration, shall refuse to make such delivery.

The fine shall be graduated in such case by the value of the thing,
provided that it shall not be less than 50 pesos.

Elements
• That the public officer has government funds in his possession.
• That he is under obligation to make payments/deliveries from
such funds.
• That he fails to make the payment/delivery maliciously.

May a private individual be charged for violation of Articles 217 to

221?

Answer: yes

Art. 222. Officers included in the preceding provision. — The

provisions of this chapter shall apply to private individuals who, in any
capacity whatever, have charge of any [national], provincial or
municipal funds, revenues or property and to any administrator or
depository of funds or property attached, seized or deposited by public
authority, even if such property belongs to a private individual.

Exception: Florencio Campomanes vs. People, GR NO. 161950,

December 19, 2006

There is no claim by the PSC or the COA that the FIDE, a foreign non-
governmental entity, is obligated under the contract to render an
accounting.

CHAPTER V:
INFIDELITY OF PUBLIC OFFICERS

• Sec. 223- Infidelity in the custody of prisoners

• Sec. 224- Infidelity in the custody of documents
 • Sec. 225- Revelation of Secrets

Infidelity in the custody of prisoners

Art. 223 Conniving with or consenting to evasion

Art. 224 Evasion through negligence
Art. 225 Escape of prisoner under the custody of a person
not a public officer

Art. 223
Conniving with or consenting to evasion

Any public officer who shall consent to the escape of prisoner in his
custody or charge, shall be punished:
1. By prision correccional in its medium and maximum
periods and temporary special disqualification in its
maximum period to perpetual special disqualification
if the fugitive shall have been sentenced by final
judgement to any penalties.
2. By prision correccional in its minimum period and
temporary special disqualification, in case the
fugitive shall not have been finally convicted but only
held as a detention prisoner for any crime or
violation of law or municipal ordinance.

Art. 224
Evasion through negligence

If the evasion of the prisoner shall have taken place through

negligence of the officer charged in the conveyance or custody of the
escaping prisoner, said officer shall suffer the penalties of arresto
mayor in its maximum period to prision correccional it its minimum
period and temporary special disqualification.

Elements

• The offender is a public officer.

• That he is charged with the conveyance or custody of a prisoner,
either detention prisoner or prisoner by final judgement.
• That such prisoner escapes through his negligence

Infidelity in the custody of documents

Art. 226 Removal, concealment, or destruction of documents

Art. 227 Officer breaking seal
Art. 228 Opening of closed documents
Art. 226
Removal, concealment, or destruction of documents

Any public officer who shall remove, destroy or conceal documents or

papers officially entrusted to him, shall suffer:

1. The penalty of prision mayor and a fine not exceeding 1,000 pesos
whenever serious damage shall have been caused thereby to a third
party or to the public interest.

2. The penalty of prision correccional in its minimum and medium

periods and a fine not exceeding 1,000 pesos, whenever the damage
caused to third party or to the public interest shall not have been
serious.

In either case, the additional penalty of temporary special

disqualification in its maximum period to perpetual special
disqualification shall be imposed.

Elements
• That the offender is a public officer
• That he abstracts, destroys or conceals a document of papers.
• That the said document or papers should have been entrusted to
such public officer by reason of his office.
• That damage, whether serious or not, to a third party or to the
public interest should have been caused.

Art. 227
Officer breaking seal
Any public officer charged with the custody of papers or property
sealed by proper authority, who shall break the seals or permit them to
be broken, shall suffer the penalties of prision correccional in its
minimum and medium periods, temporary special disqualification and
a fine not exceeding 2,000 pesos.

Elements

• That the offender is a public officer.

• That he is charged with the custody of papers or property
• That these papers or property are sealed by proper authority.
• That he breaks the seals or permits them to be broken
Art. 228
Opening of closed documents

Any public officer not included in the provision of the next preceding
article who, without proper authority, shall open r shall permit to be
opened any closed papers, documents or objects entrusted to his
custody, shall suffer the penalties of arresto mayor, temporary special
disqualifications and a fine not exceeding 2,000 pesos.

Elements

• That the offender is a public officer.

• That any closed papers, documents, or objects are entrusted to
his custody.
• That he opens or permits to be opened said closed papers,
documents or objects.
• That he does not have proper authority

Section III
Revelation of Secrets

Art. 229 Revelation of secrets by an officer

Art. 230 Public officer revealing secrets of private individual

Art. 229
Revelation of secrets by an officer

Any public officer who shall reveal any secrets known to him by reason
of his official capacity, or shall wrongfully deliver papers or copies of
papers of which he may have charge and which should not be
published, shall suffer the penalties of prision correccional in its
medium and maximum periods, perpetual special disqualification, and
a fine not exceeding 2,000 pesos, if the revelation of such secrets or
the delivery of such papers shall have caused serious damage to the
public interest; otherwise, the penalties of prision correccional in its
minimum period, temporary special disqualification, and a fine not
exceeding 500 pesos shall be imposed.

Element No. 1
• That the offender is a public officer
• That he knows of a secret by reason of his official capacity.
• That he reveals such secret without authority or justifiable
reasons.
• That damage, great or small, be caused to the public interest.

Element No. 2
 • That the offender is a public officer
• That he has charge of papers
• That those papers should not be published
• That he delivers those papers or copies thereof to a third person
• That the delivery is wrongful.
• That damage be caused to public interest.

Art. 230
Public officer revealing secrets of private individual

Any public officer to whom the secrets of any private individual shall
become known by reason of his office who shall reveal such secrets,
shall suffer the penalties of arresto mayor and a fine not exceeding
1,000 pesos.

Elements

• That the offender is a public officer

• That he knows of the secrets of a private individual by reason of
his office
• That he reveals such secrets without authority or justifiable
reason.

CHAPTER SIX

OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS UNDER

REVISED PENAL CODE

Section One
a. Disobedience
b. Refusal of assistance, and
c. Maltreatment of Prisoners

Art. 231. Open Disobedience

Any judicial or executive officer who shall openly refuse to execute the
judgment, decision, or order of any superior authority made within the
scope of the jurisdiction of the latter and issued with all the legal
formalities, shall suffer the penalties of arresto mayor in its minimum
period, temporary special disqualification in its maximum period, and a
fine not exceeding 1,000 pesos.

Elements of Open Disobedience:

• That the offender is a judicial or executive officer.

 • That there is a judgment, decision or order of a superior of
authority.
• That such judgment, decision or order was made within the
scope of the jurisdiction of the superior authority and issued with
all the legal formalities.
• That the offender without any legal justification openly refuses to
execute the said judgment, decision or order, which he is duty
bound to obey.

Art. 233. Refusal of Assistance

• The penalties of arresto mayor in its medium period to prision

correccional in its minimum period, perpetual special
disqualification and a fine not exceeding 1,000 pesos, shall be
imposed upon a public officer who, upon demand from
competent authority, shall fail to lend his cooperation towards
the administration of justice or other public service, if such
failure shall result in serious damage to the public interest, or to
a third party. arresto mayor in its medium and maximum periods
and a fine not exceeding 500 pesos shall be imposed.

Elements of Refusal of Assistance:

• That the offender is a public officer.

• That a competent authority demands from the offender that he
lend his cooperation towards the administration of justice or
other public service.
• That the offender fails to do so maliciously.

Refusal to Discharge Elective Office

• The penalty of arresto mayor or a fine not exceeding 1,000
pesos, or both, shall be imposed upon any person who, having
been elected by popular election to a public office, shall refuse
without legal motive to be sworn in or to discharge the duties of
said office.
• Elements:
• That the offender is elected by popular election to a public office
• That he refuses to be sworn in or to discharge the duties of said
office.
• That there is no legal motive for such refusal to be sworn in or to
discharge the duties of said office.

Art. 235. Maltreatment of Prisoners

The penalty of arresto mayor in medium period to prision correccional
in its minimum period, in addition to his liability for the physical injuries
or damage caused, shall be imposed upon any public officer or
employee who shall overdo himself in the correction or handling of a
prisoner or detention prisoner under his charge, by the imposition of
punishments not authorized by the regulations, or by inflicting such
punishments in a cruel and humiliating manner

Elements of Maltreatment of Prisoners

• That the offender is a public officer or employee.

• That he has under his charge a prisoner or detention prisoner.
• That he maltreats such prisoner in either of the following
manners:
a. By overdoing himself in the correction or handling of a
prisoner or detention prisoner under his charge either;
1. by the imposition of punishments not authorized by
the regulations, or
2. by inflicting such punishments in a cruel and humiliating manner; or
b. By maltreating such prisoner to extort a confession or to obtain
some information from the prisoner.

SECTION TWO

- Anticipation
- Prolongation, and
- Abandonment of the duties and powers of public office.

Art. 236. Anticipation of duties of a public office

Any person who shall assume the performance of the duties and
powers of any public office or employment without first being sworn in
or having given the bond required by law, shall be suspended from
such office or employment until he shall have complied with the
respective formalities and shall be fined from 200 to 500 pesos.
Elements:
• That the offender is entitled to hold a public office or
employment, either by election or appointment.
• That the law requires that he should first be sworn in and/or
should first give a bond.
• That he assumes the performance of the duties and powers of
such office.
• That he has not taken his oath of office and/or given the bond
required by law.
Art. 237. Prolonging performance of duties and powers

Elements:
• That the offender is holding a public office.
• That the period provided by law, regulations or special provisions
for holding such office, has already expired.
• That he continues to exercise the duties and powers of such
office.

Art. 238. Abandonment of Office or Position

• Any public officer who, before the acceptance of his resignation,

shall abandon his office to the detriment of the public service,
shall suffer the penalty of arresto mayor.
Elements:
1. That the offender is a public officer.
2. That he formally resigns from his position.
3. That his resignation has not yet been accepted.
4. That he abandons his office to the different of the public service.

SECTION THREE

USURPATION OF POWERS AND UNLAWFUL APPOITNMENTS

Art. 239. Usurpation of Legislative Powers

• The penalties of prision correccional in its minimum period,

temporary special disqualification, and a fine not exceeding
1,000 pesos.

• ELEMENTS:

– That the offender is an executive or judicial officer.

• A. makes general rules or regulations beyond the
scope of his authority or
• B. attempts to repeal a law or
• C. suspends the execution thereof.

Art. 240. Usurpation of Executive Functions

• Any judge who shall assume any power pertaining to the

executive authorities, or shall obstruct the latter in the lawful
exercise of their powers, shall suffer the penalty of arresto mayor
 in its medium period to prision correccional in its minimum
period.

• ELEMENTS:

1. That the offender is a judge.

2. That he (a) assumes a power pertaining to the executive
authorities, or
(b.) obstructs the executive authorities in the lawful exercise of their
powers.

Art. 241. Usurpation of Judicial Functions

• The penalty of arresto mayor in its medium period to prision

correccional in its minimum period shall be imposed upon any
officer of the executive branch of the Government who shall
assume judicial powers or shall obstruct the execution of any
order or decision rendered by any judge within his jurisdiction.
• ELEMENTS:
1. That the offender is an officer of the executive branch of
the Government.
2. That he (a) assumes judicial powers, or
(b) obstructs the execution of any order or decision
rendered by any judge within his jurisdiction.

Art. 244. Unlawful Appointments

• Any public officer who shall knowingly nominate or appoint to

any public office any person lacking the legal qualifications
therefor, shall suffer the penalty of arresto mayor and a fine not
exceeding 1,000 pesos.

• ELEMENTS:
1. That the offender is a public officer.
2. That he nominates or appoints a person to a public office.
3. That such person lacks the legal qualifications therefor.

SECTION FOUR

ABUSES AGAINST CHASTITY

Art. 245. Abuses against chastity

• The penalties of prision correccional in its medium and maximum

periods and temporary special disqualification shall be imposed:
1.Upon any public officer who shall solicit or make immoral or indecent
advances to a woman interested in matters pending before such officer
for decision, or with respect to which he is required to submit a report
to a superior officer;
2. Any warden or other public officer directly charged with the care and
custody of prisoners or persons under arrest who shall solicit or make
immoral or indecent advances to a woman under his custody.

II. Under Special Laws

a. The PLUNDER LAW

Section 2. Definition of the Crime of Plunder, Penalties. - Any public

officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires ill-
gotten wealth through a combination or series of overt or
criminal acts as described in Section 1 (d) hereof, in the aggregate
amount or total value of at least fifty million pesos (P50,000,000.00)
shall be guilty of the crime of plunder and shall be punished by
reclusion perpetua to death. Any person who participated with the
said public officer in the commission of an offense contributing to the
crime of plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the attendance
of mitigating and extenuating circumstances as provided by the
Revised Penal Code shall be considered by the court. The court shall
declare any and all ill-gotten wealth and their interests and other
incomes and assets including the properties and shares of stocks
derived from the deposit or investment thereof forfeited in favor of the
State (underscoring supplied).

Elements of the crime:

1. That the offender is a public officer who acts by himself or in

connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons;

2. That he amassed, accumulated or acquired ill-gotten wealth through

a combination or series of the following overt or criminal acts: (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, kickback or any
other form of pecuniary benefits 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; (c) by the illegal or
fraudulent conveyance or disposition of assets belonging to the
National Government or any of its subdivisions, agencies or
instrumentalities of Government owned or controlled corporations or
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; or (f) by taking advantage of official
position, authority, relationship, connection or influence to unjustly
enrich himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the Philippines;
and,

3. That the aggregate amount or total value of the ill-gotten wealth

amassed, accumulated or acquired is at least P50,000,000.00.

WHICH COURT HAS JURISDICTION IN PLUNDER CASES?

Lilia B. Organo v. Sandiganbayan . (GR No. 133535, September 9,

1999, p. 7, per Pardo, J. ) In that case, the Supreme Court ruled that
that “the Sandiganbayan has no jurisdiction over the crime of plunder
unless committed by public officials and employees occupying the
positions with Salary Grade ‘27’ or higher, under the Compensation
and Position Classification Act of 1989 (Republic Act No. 6758) in
relation to their office.”

In People v. Magallanes (249 SCRA 225-226, October 11, 1995,

speaking thru CJ Davide,) the Supreme Court has categorically ruled
that the Sandiganbayan has jurisdiction over public officials only if
their positions fall under Salary Grade 27 or higher.

The rationale for this was explained by the Supreme Court in

FLEURDELIZ B. ORGANO, petitioner, vs. SANDIGANBAYAN and the JAIL
WARDEN OF MANILA, respondents. GR 136916, December 14, 1999:

“To distinguish the ‘big fish’ from the ‘small fry,’ Congress deemed the
27th Grade as the demarcation between those who should come under
the jurisdiction of the Sandiganbayan and those within the regular
courts.”
Moreover, the Court in Rodrigo v. Sandiganbayan (GR No. 125498,
February 18, 1999, ) has explained that the intent of Congress in RA
8249 was to make Salary Grade 27 the demarcation line determining
the jurisdiction of the Sandiganbayan and other courts.

“The apparent intendment of these amendments is to ease the dockets

of the Sandiganbayan and to allow the Anti-Graft Court to focus its
efforts on the trial of those occupying higher positions in government,
the proverbial “big fish.” Section 4, as amended, freed the
Sandiganbayan from the task of trying cases involving lower-raking
government officials, imposing such duty upon the regular courts
instead. The present structure is also intended to benefit these
officials of lower rank, especially those residing outside Metro Manila,
charged with crimes related to their office, who can ill-afford the
expenses of a trial in Metro Manila. As the Explanatory Note of House
Bill No. 9825 states:

‘One is given the impression that only lowly government workers or the
so-called ‘small fry’ are expediently tried and convicted by the
Sandiganbayan. The reason for this is that at present, the
Sandiganbayan has the exclusive and original jurisdiction over graft
cases committed by all officials and employees of the government,
irrespective of rank and position, from the lowest-paid janitor to the
highly-placed government official. This jurisdiction of the
Sandiganbayan must be modified in such a way that only those
occupying high positions in the government and the military (the big
fishes) may fall under its exclusive and original jurisdiction. In this
way, the Sandiganbayan can devote its time to big time cases
involving the ‘big fishes’ in the government. The regular courts will be
vested with the jurisdiction of cases involving less-ranking officials
(those occupying positions corresponding to salary grade twenty-seven
(27) and below and PNP members with a rank lower than Senior
Superintendent. This set-up will prove more convenient to people in
the provinces. They will no longer have to travel to Manila to file their
complaint or to defend themselves. They can already file their
complaint or their defense before the Regional Trial Court or the
Municipal Trial Court in their respective localities, as the case may be.’
(Organo, supra)

b) ANTI GRAFT AND CORRUPT PRACTICES ACT

Section 3. 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:
(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 part, 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 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.

(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 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.

(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 or 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) Director 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.

(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.

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.

(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.

The person giving the gift, present, share, percentage or benefit

referred to in subparagraphs (b) and (c); or offering or giving to the
public officer the employment mentioned in subparagraph (d); or
urging the divulging or untimely release of the confidential information
referred to in subparagraph (k) of this section shall, together with the
offending public officer, be punished under Section nine of this Act and
shall be permanently or temporarily disqualified in the discretion of the
Court, from transacting business in any form with the Government.

Section 3. 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:
 (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.

In Manuel Baviera vs. Rolando Zoleta, (GR No. 169098, October 12,
2006), the Supreme Court upheld the findings of the Office of the
Ombudsman relieving then Acting DOJ Secretary Merceditas Gutierrez
of any criminal liability under Section 3(a) RA 3019 for allowing an
Indian national to go out of the country on a Sunday despite of a Hold
Departure Order issued by the DOJ Secretary for failure of the
complainant to prove that she received material consideration in
exchange of the favor granted to Raman (the Indian national)

May a private individual be charged under sec. 3 (g) ra 3019?

Answer: no. section 3 (g) can only be violated by a public officer

petitioner, a private individual, stands charged with violation of section
3(g) of republic act no. 3019, the clear terms of which punishes public
officers who, on behalf of the government, enter into contracts or
transactions manifestly and grossly disadvantageous to the
government, whether or not the public officer profited or will profit
thereby.

The first element of the crime is that the accused must be a public
officer who enters into a contract on behalf of the government. The
philosophy behind this is that the public officer is duty bound to see to
it that the interest of the government is duly protected. thus, should
the contract or transaction entered into by such public officer is
manifestly or grossly disadvantageous to the government’s interests,
the public officer is held liable for violation of Section 3(g), whether or
not this public officer profited or will profit thereby.

In Luciano v. Estrella, Justice J.B.L.Reyes opines that the act

treated in section 3(g) partakes of the nature of malum prohibitum; it is
the commission of that act as defined by the law, and not the
character or effect thereof, that determines whether or not the
provision has been violated. an act which is declared malum
prohibitum, malice or criminal intent is completely immaterial. Section
3(g), however, applies restrictively only to public officers entering into
a contract on behalf of the government manifestly or grossly
disadvantageous to the government.

WHETHER OR NOT, BY NATURE, THE SUBJECT CRIMINAL INDICTMENTS

FOR VIOLATIONS OF SECTION 3(E), REPUBLIC ACT NO. 3019 AND
ARTICLE 172, IN RELATION TO ARTICLE 171, OF THE REVISED PENAL
CODE GIVE RISE TO CIVIL LIABILITY IN FAVOR OF ANY PRIVATE PARTY.

[G.R. Nos. 140576-99. December 13, 2004], JOSE S. RAMISCAL, JR.,

petitioner, vs. HONORABLE SANDIGANBAYAN (Fourth Division), ALBANO
& ASSOCIATES and the ASSOCIATION OF GENERALS & FLAG OFFICERS,
INC., respondents., the Supreme Court in ruling that AGFOI is not the
offended party entitled to intervene in said cases, relied in Section 16,
Rule 110 of the Revised Rules of Criminal Procedure, which states that
the offended party may also be a private individual whose person,
right, house, liberty or property was actually or directly injured by the
same punishable act or omission of the accused, or that corporate
entity which is damaged or injured by the delictual acts complained of.
Such party must be one who has a legal right; a substantial interest in
the subject matter of the action as will entitle him to recourse under
the substantive law, to recourse if the evidence is sufficient or that he
has the legal right to the demand and the accused will be protected by
the satisfaction of his civil liabilities. Such interest must not be a mere
expectancy, subordinate or inconsequential. The interest of the party
must be personal; and not one based on a desire to vindicate the
constitutional right of some third and unrelated party.

WHO IS THE “OFFENDED PARTY”?

The offended party may be the State or any of its instrumentalities,

including local governments or government-owned or controlled
corporations, such as the AFP-RSBS, which, under substantive laws, are
entitled to restitution of their properties or funds, reparation, or
indemnification. For instance, in malversation of public funds or
property under Article 217of the Revised Penal Code, frauds under
Article 213 of the Revised Penal Code, and violations of the Forestry
Code of the Philippines, P.D. No. 705, as amended, to mention a few,
the government is the offended party entitled to the civil liabilities of
the accused. For violations of Section 3(e) of Rep. Act No. 3019, any
party, including the government, may be the offended party if
such party sustains undue injury caused by the delictual acts of
the accused. In such cases, the government is to be represented by
the public prosecutor for the recovery of the civil liability of the
accused.(Ramiscal vs. Sandiganbayan, supra)