Ease With Legalese: Bedazzled by Embezzlement

Let us help each other. Together let us build a better community… province… region… better and promising Philippines. 

Let us make a change, contribute, or help... however big or small, remote or convenient our way is. The important thing is we act.

2013 midterm elections is in the offing. Many politicians—newbies, oldies, re-electionists, public servant, or public savant, what have you—are fired up... I mean, “excited”; not ready to fire their guns, you know.

 

It’s just but high time that we know some of the basic and important provisions of the law that we always hear in the news and we even comment on... [Yet] we ironically and sadly, fail to familiarize ourselves with.

So watchdogs, before we cast your votes this coming elections, let us first understand some provisions of the law related to public officials and their performances of their duties as public servants.

Article 217 of the Revised Penal Code (RPC) talks about PRESUMPTION OF MALVERSATION OF PUBLIC FUNDS OR PROPERTY.

We always hear in the news that politician X had a road project which gone worse even before it existed; mayor Y received millions of royalties from a natural resource found in his jurisdiction but there was never a project done until his term expired; or governor Z kept on building infrastructure projects but the buildings were always substandard and not in keeping with the budget the projects reflected.

What really is malversation?

Etymology of the word is traced from Middle French malverser or to be corrupt; from Latin male versari or male as in badly; from Indo-European versr or to behave. The word was first used in 1549 (Merriam-Webster).

The lexicon meaning says malversation is a misbehavior and especially corruption in an office, trust, or commission (Merriam-Webster); corrupt behaviour in a position of trust (Oxford); wrongdoing (Cambridge); behaviour that is illegal or not moral (Macmillan British).

Under the Article 217 of the RPC, the acts punishable as malversation are:

1. Appropriating public funds or property
2. Taking or misappropriating funds or property
3. Consenting, or through abandonment or negligence, permitting any other person to take such public funds or property
4. Being otherwise guilty of the misapropriation or malversation of such funds and property

Within the ambit of Chapter Four of the RPC, malversation is otherwise called as embezzlement or taking of funds/properties for one’s own or personal use.

Now, you may ask what makes an act a crime of malversation committed by a public officer.

There are still other acts of malversation other than those mentioned above. But all these acts have common elements that make them felonious or in violation of the RPC.

1. That the offender be a public officer
2. That he had custody or control of funds or property by reason of the duties of his office
3. That those funds or property were public funds or property for which he was accountable
4. That he appropriated, took, misappropriated, or consented, or through abandonment or negligence, permitted another person to take them.

It is very important to note that what is controlling is the nature of the duties of the public officer, and not the name of his office. Also, the term “public officers” embraces every public servant from the highest to the lowest positions. The RPC wipes out the standard distinction in the law of public officers between “officer” and “employee”. Hence, a temporary performance of public functions by a laborer makes him a public officer.

Even an emergency employee entrusted with custody or collection of public funds or property may be held liable for malversation.

The funds or property must be received in the official capacity or by virtue of his duty. Thus, if a public officer had no authority to receive the money/property and he misapporpriated it, what he committed is estafa not malversation.

You think a private individual can escape charge of malversation? No.

Private individuals may commit the crime of malversation in these cases:

1. Conspiracy with public officers guilty of malversation
2. Accessory or accomplice to a public officer
3. Custodian of public funds or property in whatever capacity
4. Depositor or administrator of public funds or property

So even you, yes you, can be charged with malvesation under Article 217 of the RPC.

When demand is made to the accountable officer to account for the funds or property and the officer cannot provide the funds/property, then the law presumes that he has put such missing funds or property to personal use.

Whether the public officer misappropriated the fund/property with malice or through negligence or imprudence, it doesn’t matter... Once the essential elements are all present, he is still liable for malversation under Article 217 of the RPC.

Demand and damage to the government are not necessary in malversation. Actually, damand merely raises a presumption. So whether there’s demand or none, a public officer may still be held liable.

Return of the malversed funds will only lessen the punishment, but the officer will still be liable.

So now... do some names just ring in your head?

We still have ample time to observe, background check, and evaluate…

Let us help each other. Together let us build a better community… province… region… better and promising Philippines.

Let us make a change, contribute, or help... however big or small, remote or convenient our way is. The important thing is we act.

Let’s all be informed, aware, and be engaged!

Vote based on your wise observation and evaluation.

Bayan natin, mahalin natin!