2017 Criminal Law, Q5

To aid in the rebuilding and revival of Tacloban City and the surrounding areas that had been devastated by the strongest typhoon. to hit the country in decades, the Government and other sectors, including NGOs, banded together in the effort. Among the NGOs was Ba..,gon Waray, Inc. (BaWI), headed by Mr. Jose Ma. Gulang, its President and CEO. BaWI operated mainly as a social amelioration and charitable institution. For its activities in the typhoon-stricken parts of Leyte Province, BaWI received funds from all sources, local and foreign, including substantial amounts from legislators, local government officials and the EU. After several months, complaints were heard about the very slow distribution of relief goods and needed social services by BaWI.
The COA reported the results of its audit to the effect that at least P10 Million worth of funds coming from public sources channeled to BaWI were not yet properly accounted for. The COA demanded reimbursement but BaWI did not respond.
Hence, Mr. Gulang was criminally charged in the Office of the Ombudsman with malversation of public funds and failure of accountable officer to render accounts as respectively defined and punished by Art. 217 and Art. 218 of the Revised Penal Code. He was also· charged with violation of Sec. 3(e) of R.A. No. 3019 for causing undue injury to the Government.
In his defense, Mr. Gulang mainly contended that he could not be held 1iable under the various· charges because he was not a public officer.
(a) Who is a public officer? (2%)
(b) Discuss whether the crimes charged against Mr. Gulang are proper. Explain your answer. (3%)

Quick check

Who is considered a public officer under Article 203 of the Revised Penal Code?

Under Article 222 of the RPC, can a private NGO president be held liable for malversation of public funds?

Why is a private individual NOT independently liable under Section 3(e) of RA 3019 without a co-conspirator public officer?

What crime under Article 218 of the RPC is committed by failing to account for public funds upon demand?

Does public money channeled to a private NGO retain its character as public funds under the RPC?

Learn more about these topics

1. Public Officer Definition
Under Article 203 of the Revised Penal Code, a public officer is any person who, by direct provision of the law, popular election, or appointment by competent authority, takes part in the performance of public functions in the Government of the Republic of the Philippines, or performs in said Government or in any of its branches public duties as a employee, agent, or officer. While private individuals are generally not public officers, certain penal provisions explicitly extend criminal liability to private individuals who hold, manage, or take charge of public funds or property.

2. Private Person Malversation
Under Article 222 of the Revised Penal Code, the provisions on malversation under Article 217 and failure of an accountable officer to render accounts under Article 218 are made explicitly applicable to private individuals who, in any capacity whatever, have charge of any national, provincial, or municipal funds, revenues, or property. A private officer of a non-governmental organization who receives and manages public funds channeled for disaster relief operations becomes an accountable person under Article 222, making him criminally liable for malversation if he fails to properly account for those public funds.

3. Graft Law Coverage
Under Section 3(e) of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act, criminal liability for causing undue injury to the government or giving unwarranted benefits attaches primarily to public officers. Private individuals can only be held liable under Section 3(e) if they act in conspiracy with a public officer who commits the offense. In the absence of an allegation or proof of conspiracy with a public officer, a private individual managing an NGO cannot be independently prosecuted or convicted under Section 3(e) of Republic Act No. 3019.

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The questions reproduced here are the official texts of the Philippine Bar Examinations, published by the Supreme Court. They are reproduced for study purposes.The suggested answers are the author’s own.

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