Blog Lecture No. 30: Malversation and Plunder

Ok class! Let us go to the topic of malversation of public funds and plunder.

Unknown to many, malversation of public funds is actually contained as a chapter in the Revised Penal Code and subsumes more than one crime.

The pertinent provisions read as follows:

Chapter Four
MALVERSATION 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, 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 two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

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 use. (As amended by RA 1060.)

Art. 218. Failure of accountable officer to render accounts. — Any public officer, whether in the service or separated therefrom by resignation or any other cause, who is required by law or regulation to render account to the Insular Auditor, or to a provincial auditor and who fails to do so for a period of two months after such accounts should be rendered, shall be punished by prision correccional in its minimum period, or by a fine ranging from 200 to 6,000 pesos, or both.

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 Insular Auditor 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 fund or property under his administration to any public use other than for which such fund 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 of the sum misapplied, if by reason of such misapplication, any damages 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 per cent of the sum misapplied.

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 payment, shall be punished by arresto mayor and a fine from 5 to 25 per cent of the sum which he failed to pay.

This provision shall apply to any public officer who, being ordered by competent authority to deliver 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 less than 50 pesos.

Art. 222. Officers included in the preceding provisions. — The provisions of this chapter shall apply to private individuals who in any capacity whatever, have charge of any insular, 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.

So what is malversation, in general?

Malversation is a crime committed by an accountable public officer who appropriates/misappropriates such funds under his control/accountability or allow other persons to take such funds or property, by consent, abandonment or negligence.

Can you break that down?

Ok. The requisites are:

1. He must be a public officer.
2. He must be accountable under such office funds or property.
3. He either:
a. Takes the funds/property himself, either totally or partially; or
b. Allows others to take it, by consent, abandonment or negligence.

What are the other crimes under malversation?

They are:

1. Failure to render accounts
2. Failure to render accounts before leaving the country
3. Illegal use of public funds (otherwise known as “technical malversation”)
4. Failure to make delivery of public funds.

The first two are easy to grasp. But can you give an example of the last two?

Sure.

1. For example, an officer uses the funds collected from the Road User’s Tax (Republic Act No. 8794) for another public use like funding a public campaign…

As a side note, the funds collected from the Road User’s Tax shall be deposited in four special accounts, namely, the Special Road Support Fund, the Special Local Road Fund, the Special Road Safety Fund and the Special Vehicle Pollution Control Fund. The use of such funds other than for these shall be considered technical malversation.

Now, if the same public officer uses such funds for personal gain, such as funding his re-election, that’s malversation and not technical malversation.

2. A public officer who has in his possession funds to pay a government obligation, such as payment for expropriated land, fails to pay up.

What is plunder?

Section 2 of Republic Act No. 7020, as amended by Republic Act No. 7659, defines plunder as follows:

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 with perpetual absolute disqualification from holding any public office.

What is “ill-gotten wealth”?

It means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, 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 :

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

2) 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;

3) 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;

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

5) 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

6) 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 and prejudice of the Filipino people and the Republic of the Philippines.

Can you give an example of each of the criminal acts that constitutes plunder?

Ok.

1. See the malversation examples above.

2. As consideration for awarding a government project, a certain contractor gives the “Standard Operating Procedure” pay of 20% of the project amount. If the 20% kickback (or series of kickbacks) amounts to P50 Million or above, that’s plunder.

3. A government owned or controlled corporation illegally sells a priceless painting it owns and then the management derives ill-gotten wealth from it.

4. A government official accepting shares of stock, instead of cash for any anomalous transaction.

5. A government official issuing memoranda to ensure a monopoly of anything and then derrives ill-gotten wealth from it.

6. A relative of a high government official exploiting such relationship to get favors or engagements to “fix” problems in government for a price.

Whew! Let’s break for recess…

Aren’t you forgetting someting?

Oh, yes, thank you. For the crime 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 use.

Hence, once a public officer fails to return the funds or property, there is already a prima facie evidence that he has misappropriated it for his personal use. The burden of proof, therefore, shifts to him to prove that that is not the case upon such failure.

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1 Comment

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One response to “Blog Lecture No. 30: Malversation and Plunder

  1. whow! interesting blog!

    yun lang po, Sir! 🙂

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