Barry Gutierrez: Grading the President on his Understanding of Anti-Corruption Laws
Over the past few weeks, the President has insisted in various public statements, that “gifts” accepted by public officials in the course of their duties should not be considered as “bribes,” and therefore are not prohibited by law. The President, more recently, has even attempted to cite legal authority to support his contention, insisting that he quoted the “very words [of the] anti-graft and corrupt practices [act]. [And that] there are exemptions: ‘nominal’ and I used the word ‘nominal’ and ‘out of gratitude.’”
What law is the President attempting to invoke here? And is he correct in his contention that the provision he is trying to cite does indeed allow public officers to accept gifts provided they are, in his words, “nominal” and given “out of gratitude?”
A quick look at the Anti-Graft and Corrupt Practices Act (RA 3019) easily establishes that the President is referring to the first paragraph of Section 14 of the said law when he talks about “nominal” gifts given “out of gratitude.” This provision states that:
Section 14. Exception. 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 this Act.
There are several details that must be pointed out here. First, is that the provision does not talk of “nominal” gifts – in fact, the word nominal does not appear at all. Instead, it speaks of “gifts or presents of small or insignificant value.” The distinction is important, particularly when taken with a related assertion of the President on this point that “[if] you are just content of maybe you want 50,000 and you are able to get something like 25 or 20, be content. Be — do not allow your greed to run away with all the — alam mo na, kalokohan. So ‘yan lang akin. Hindi ko kayo iipitin,” where he seemingly implies that accepting a “gift” of 25,000 pesos is legal because it is “nominal.” To be clear, Section 14 requires that the gift must be of small or insignificant value, and certainly, 25,000 pesos, which is more than double what a minimum wage earner in Metro Manila earns in a month, is hardly insignificant.
Second, the exception talks of a gift given “as an ordinary token of gratitude or friendship according to local customs or usage,” not simply a gift given “out of gratitude.” Again this is a significant distinction because the gift must be an “ordinary token of gratitude of friendship,” and it is difficult to imagine an envelope filled with thousands in cash as being an ordinary token of anything except corruption.
Third, and most significantly, Section 14 ONLY provides an exception to the crimes punished under RA 3019. Most of these involve public officials receiving bribes to do or not to do certain acts pertaining to their official functions, and do not cover situations where a public official is simply given a gift by reason of her/his public office without having to perform any specific act in return. In other words, the legal prohibition on public officials receiving gifts is NOT in RA 3019, and thus Section 14, which pertains only to crimes under RA 3019, cannot be invoked as authority to annul said prohibition.
And there are three laws that explicitly prohibit the receipt of gifts by public officials, none of which contain an exception for “nominal” gifts given “out of gratitude.”
The first is Article 211 of the Revised Penal Code, which punishes Indirect Bribery. Under this provision:
Art. 211. Indirect bribery. — The penalties of prision correccional in its medium and maximum periods, and public censure shall be imposed upon any public officer who shall accept gifts offered to him by reason of his office.
Note that the only requirement is that the public officer accept a gift “offered to him by reason of his office,” and that there is no exception granted.
The second, is even more explicit. Presidential Decree No. 46, makes it
punishable for any public official or employee, whether of the national or local governments, to receive, directly or indirectly, and for private persons to give, or offer to give, any gift, present or other valuable thing to any occasion, including Christmas, when such gift, present or other valuable thing is given by reason of his official position, regardless of whether or not the same is for past favor or favors or the giver hopes or expects to receive a favor or better treatment in the future from the public official or employee concerned in the discharge of his official functions. Included within the prohibition is the throwing of parties or entertainments in honor of the official or employees or his immediate relatives.
Under this law, the President’s reference to gifts received during “Christmas” as being acceptable is squarely addressed and explicitly prohibited. And again, there is no exception provided.
Lastly, there is Section 7(d) of RA 671, which provides that:
Solicitation or acceptance of gifts. – Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.
The only exception under this law is in relation to gifts received from foreign governments provided that they are (i) of nominal value and received as a souvenir or mark of courtesy; (ii) in the nature of a scholarship or fellowship grant or medical treatment; or (iii) travel grants or expenses for travel taking place entirely outside the Philippine (such as allowances, transportation, food, and lodging) of more than nominal value if such acceptance is appropriate or consistent with the interests of the Philippines, and permitted by the head of office, branch or agency to which he belongs.
What is the law, therefore, on acceptance by public officials of gifts? Without doubt, the same is prohibited and punished as a crime under at least three laws. It does not matter if the gift is “nominal” – and certainly, a 25,000 peso cash gift is NOT nominal – or if it is given “out of gratitude” or “during Christmas.” It will be illegal for any public official to accept such a gift. And absent a repeal or revision of all these laws, a Presidential “legal opinion,” particularly one anchored on incorrect premises, cannot change the rule.
Credit, of course, goes to the President for at least skimming through Section 14 of RA 3019, even if his understanding of, and his reliance on it, is unfortunately misplaced. As any first year law student could have told him, however, a little knowledge of the law, still gets you a failing grade.