The term public officer is any person, who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the government, or shall perform in said government or in any of its branches public duties as an employee, agent or subordinate official of any rank or class
Bribery connotes the idea of a public officer utilizing the power, influence or prestige of his office for the benefit of an individual in exchange for a consideration. The offense can not be considered bribery if there is no consideration but the act may be considered as a violation of the Anti Graft and Corrupt Practices Act .
THE TWO FORMS OF BRIBERY
1. Simple Bribery which is either:
- Direct
- Indirect
2. Qualified Bribery
DIRECT BRIBERY: DEFINED AND PENALIZED UNDER ARTICLE 310 OF THE REVISED PENAL CODE, ITS ELEMENTS ARE AS FOLLOWS:
- That the accused is a public officer
- That he received directly or through another, some gift or present, offer or promise
- That such gift, present offer or promise has been given in consideration of his commission of some crime, or any act not consisting a crime, or to refrain from doing something which it is his official duty to do
- That the crime or act relates to the exercise of his functions as a public officer
This has no frustrated or attempted stage since the mere agreement consummates the crime.
If the act constituting a crime was committed, the officer is liable for bribery and for the additional crime so committed. The bribe giver will also be liable for the crime. Bribery is never absorbed or complexed but is always punished separately. But in the crime of Delivering Prisoners bribery constitutes a qualifying aggravating circumstance.
There are only two stages: (i) attempted when the officer agreed to do the act for a consideration and received the consideration but was not able to perform the act and (ii) consummated when the act was executed and the officer received the consideration.
EXAMPLES:
(a). For money received, the Court sheriff delayed the service of summons to the defendant or that he did not immediately serve the writ of execution until the defendant has sold his properties.
(b) The complainant paid the policeman to serve the warrant of arrest of the accused on Saturday so that the accused will not be able to post bail. The police however served the warrant on Friday allowing the accused the accused to post bail. The police is not liable for bribery but the bribe giver is liable for attempted corruption. But he may file a case to recover the money.
(c). The police received the money but when he went to arrest on a Friday night, the accused had already posted bail that morning. He is liable for consummated bribery even if the purpose was not achieved.
(d). NBI agents learned the money will be given on Friday morning. When the money was given the NBI agents who were waiting, arrested both the giver and the police. Did the policeman commit direct bribery?
(e). Receiving money to give preference to a late application over others earlier submitted.
COMMON PRINCIPLES:
The accused in the direct bribery case is the public officer only. The accused in the direct bribery case is the public officer only. The bribe giver will be punished for Corruption of a Public Officer.
Private persons are liable if they are performing public functions such as assessors, arbitrators, appraisers and claim commissioners. These private persons are usually designated and/or directed by the court to perform these functions as part of pending proceedings, and to submit their findings to the court.
The act or omission must be in relation to the officer’s duties or functions otherwise the crime would be estafa.
The consideration need not be in terms of money, or articles of value so long as it has a pecuniary value. This is because the penalty of fine is based on the value of the consideation given. Those in the form of favors or service or non-material considerations may induced a public official to do any of the act contemplated by law. However, there is the question of determining the value as basis for the fine.
The consideration may be given to the officer directly or to members of his family or persons closely associated with the officer.
1.Examples of Consideration in the form of services: the employment or promotion of a family member in a certain company; or the giving of a contract to the company of the wife; or that the private person will shoulder the expenses of the birthday party of the officer’s son.
2. The borrowing of a vehicle by the LTO Director from a transportation company can be considered as a gift in contemplation of law (Garcia vs. Sandiganbayan 507 SCRA 258).
The giving of the consideration must be mutual, either at the suggestion of the briber giver or upon the solicitation of the officer.
1. If it was the officer who solicited but the private person reported it leading to an entrapment and the subsequent arrest of the officer, the crime is merely attempted bribery.
2. If it was the private person who voluntarily gave but the officer used the consideration as evidence, it is Attempted Corruption of a Public Officer.
If the private person was compelled to agree to give a consideration due to force, threat or intimidation on the part of the officer, the act is called extortion or mulcting but the proper name of the offense is robbery.
If a person gives money to a public officer as consideration for the officer to do or not to do his duty for the benefit of the person, when will the receipt constitute robbery and when will it be bribery?
- If the money was given willingly at the instance of the giver, it is bribery
- If he was forced to give it is robbery
- If the giver committed a crime and at his own instance he gives money so as to avoid arrest and prosecution, the receipt thereof would be bribery.
- If the giver is a family member of a person arrested and was prevailed upon to give so that the case against the relative will not push through, or will be down-graded, the demand and receipt of consideration is robbery.
- If the giver committed a crime and it was the officer who suggested the giving of money to avoid arrest, it is bribery so long as the person did so voluntarily but if he was forced to give, then it is robbery. Thus if the person was unwilling to give but he pretended to give but reported instead to the authorities who set up an entrapment, the crime of the officer is attempted robbery
- If the person did not commit a crime but the officer insist and pretend there was a crime and threatens to arrests unless money is given, then the receipt thereof is robbery.
INDIRECT BRIBERY
Concept: the crime committed by a public officer who accepts a gift given by reason of his office or position. A gift is actually received and not future promises or offers. The officer must have done an act appropriating the gift for himself, his family or employees. “The essential ingredient … is that the public officer concerned must have accepted the gift or material consideration ( Garcia vs. Sandiganbayan 507 SCRA 258).
ILLUSTRATIONS:
- An envelope was left on top of the desk of officer. The officer called his staff and told them to use all the amount to buy food and snacks. This is indirect bribery.
- If the officer however gave it to the Jail or to some children, he is not liable.
- If he simply let the envelope drop on the floor and left it there, he is not liable.
- If somebody pays the bill for his meal or drinks, he is not liable for indirect bribery as he did not accept any gift.
- Receipt of cash given as “share in winnings” or “balato” are included
The phrase “by reason of his office” means the gift would not have been given were it not for the fact that the receiver is a public officer. The officer need not do any act as the gift is either for past favors or to anticipate future favors, or simply to “impress” or earn the good will of the officer.
QUALIFIED BRIBERY
Concept: the crime committed by any public officer who is entrusted with the law enforcement and he refrains from arresting or prosecuting an offender who ahs committed a crime punishable by reclusion perpetua and/or death in consideration of any offer, promise, gift or present.
PRINCIPLES
The offenders are limited to officers entrusted with law enforcement such as members of the regular law enforcement agencies, as well as those tasked to enforce special laws, and Prosecutors. This is similar to prevarication under Article 208 but the offense involved here which the officer refused to prosecute are graver being punished by reclusion perpetua or death.
Actual receipt of consideration is not necessary.
The penalty for the officer is that for the offense he did not prosecute. But if it was the officer who solicited the gift, the penalty is death. However, the guilt of the person who was not prosecuted must first be proven.
Query:
(a). what crime was committed by a law enforcement agent who refused to arrest a rapist or murderer? (Ans). If it was because of a consideration the crime is qualified bribery. If there was no consideration he is an accessory to the crime
(b) Suppose it was a drug pusher who was refused to be arrested? (ans). Qualified bribery if there was a consideration. If there was none it should be Violation of Article 208 because there are no accessories in the offense of drug pushing
TYPES OF BRIBERY
Bribery of Witnesses in Court.
Bribery of a Public Official.
Bribery of Doctors.
Bribery of Foreign Officials.
Active bribery refers to the act of promising or giving the bribe, as opposed to the act of receiving a bribe (passive bribery). The term does not mean the active briber has taken the initiative, since the bribe may have been demanded by the receiving party (who commits “passive bribery”).
Bribery – means giving or receiving an unearned reward to influence someone’s behaviour. One common form of bribery is a “kickback” – an unearned reward following favourable treatment.
Corruption – is any unlawful or improper behaviour that seeks to gain an advantage through illegitimate means.