WHEN OFFENDER IS NOT LIABLE UNDER
SEC. 3(e) BUT UNDER SEC. (f) OF RA 3019
It would appear that petitioner’s failure or refusal to act on the complainant’s vouchers, or the delay in his acting on them more properly falls under Sec. 3[f]:
“(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 purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party.”
Here, the neglect or refusal to act within a reasonable time is the criminal act, not the causing of undue injury. Thus, its elements are:
“1) the offender is a public officer;
2) Said officer has neglected or has refused to act without sufficient justification after due demand or request has been made on him;
3) Reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him; and
4) Such failure to so act is ‘for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party, or discriminating against another.”
However, petitioner is not charged with a violation of Sec. 3[f]. Hence, further disquisition is not proper. Neither may this Court convict petitioner under Sec. 3[f] without violating his constitutional right to due process.
(Llorente v. Sandiganbayan)
SUSPENSION (PREVENTIVE) OF
LOCAL OFFICIALS SHALL ONLY
BE FOR 60 DAYS
On the other hand, we find merit in petitioner’s second assigned error. The Sandiganbayan erred in imposing a 90 day suspension upon petitioner for the single case filed against him. Under Section 63 (b) of the Local Government Code, “any single preventive suspension of local elective officials shall not extend beyond sixty (60) days.” (Rios v. Sandiganbayan; GR 129913, Set. 26, 1997)
APPROVAL OF LEAVE OF ABSENCE
NOT A BAR TO SUSPENSION
Since the petitioner is an incumbent public official charged in a valid information with an offense punishable under the Constitution and the laws (RA 3019 and PD 807), the law’s command that he “shall be suspended from office” pendente lite must be obeyed. His approved leave of absence is not a bar to his preventive suspension for as indicated by the Solicitor General, an approved leave, whether it be for a fixed or indefinite period, may be cancelled or shortened at will by the incumbent. (Doromal v. Sandiganbayan; GR 85468, Sepr. 7, 1989)
UNDUE DELAY IN PRELIMINARY
INVESTIGATIONS VIOLATIVE OF
DUE PROCESS AND A GROUND TO DISMISS
After a careful review of the facts and circumstances of this case, we are constrained to hold that the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of the foregoing, we find it unnecessary to rule on the other issues raised by petitioner. (Tatad v. Sandiganbayan)
SECTION 3(B), RA 3019
ELEMENTS
- The offender is a public officer
- Who requested or received a gift, a present, a share, a percentage, or a benefit
- On behalf of the offender or any other person
- In connection with a contract or transaction with the government
- In which the public officer, in an official capacity under the law, has the right to intervene.
(Garcia vs. Sandiganbayan, G.R. No. 155574, November 20, 2006)
SECTION 3(h) of the Anti-Graft Law
ESSENTIAL ELEMENTS
- The accused is a public officer;
- He has a direct or indirect financial or pecuniary interest in any business, contract or transaction;
- He either:
- Intervenes or takes part in his official capacity in connection with such interest; or
- Is prohibited from having such interest by the Constitution or by law.
TWO MODES BY WHICH A PUBLIC OFFICER MAY VIOLATE SEC. 3(H) OF RA 3019
In other words, there are two modes by which a public officer who has a direct or indirect financial or pecuniary interest in any business contract or transaction may violate Sec. 3(h) of RA 3019. The first mode is when the public officer intervenes or takes part in his official capacity in connection with his financial or pecuniary interest in any business, contract or transaction. The second mode is when he is prohibited from having such an interest by the Constitution or by law. (Domingo vs. Sandiganbayan, G.R. 149175, October 25, 2005)
THE PRESCRIPTIVE PERIOD FOR THE OFFENSES SHOULD BE COMPUTED FROM THE DISCOVERY OF THE COMMISSION THEREOF
The issue of prescription has long been laid to rest in the aforementioned Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, where the Court held:
x x x
it was well-nigh impossible for the State, the aggrieved party, to have known the violations of R.A. No. 3019 at the time the questioned transactions were made because, as alleged, the public officials concerned connived or conspired with the “beneficiaries of the loans.’ Thus, we agree with the COMMITTEE that the prescriptive period for the offenses with which respondents in OMB-0-96-0968 were charged should be computed from the discovery of the commission thereof and not from the day of such commission.
The assertion by the Ombudsman that the phrase ‘if the same not be known’ in Section 2 of Act No. 3326 does not mean ‘lack of knowledge’ but that the crime ‘is not reasonably knowable’ is unacceptable, as it provides an interpretation that defeats or negates the intent of the law, which is written in a clear and unambiguous language and thus provides no room for interpretation but only application.
As to when the period of prescription was interrupted, the second paragraph of Section 2, Act No. 3326, as amended, provides that prescription is interrupted ‘when proceedings are instituted against the guilty person.
Records show that the act complained of was discovered in 1992. The complaint was filed with the Office of the Ombudsman on April 5, 1995, or within three (3) years from the time of discovery. Thus, the filing of the complaint was well within the prescriptive period of 15 years. (PCGG vs. Desierto, G.R. No. 140231, July 9, 2007)
JURISPRUDENCE:
LINDA CADIAO-PALACIOS
VS.
PEOPLE
G.R. NO. 168544, MARCH 31, 2009
Section 3(b) penalizes three distinct acts – 1) demanding or requesting; 2) receiving; or 3) demanding, requesting and receiving – any gift, present, share, percentage, or benefit for oneself or for any other person, in connection with any contract or transaction between the government and any other party, wherein a public officer in an official capacity has to intervene under the law. Each of these modes of committing the offense is distinct and different from one another. Proof of existence of any of them suffices to warrant conviction.
