When being Santa can be a crime

It’s the season of gift-giving, but beware whom you give Christmas gifts to.

Filipinos are a generous lot, especially to those they feel beholden to. Thus, it is not uncommon for us to give Christmas gifts, not just to our loved ones but to people who, in one way or another, may have been kind to or have helped us — government officials and employees among them. Such gift-giving may be wellintentioned but can land both the giver and recipient in jail.

For instance, the public officer may be held liable for direct bribery (Article 210 of the Revised Penal Code) if he agrees to perform an act constituting a crime, in connection with the performance of his official duties because of an offer, promise, gift or present received.

If the act committed does not constitute a crime, the officer is still liable, albeit the penalty is less. If the object for which the gift was received or promised was to make the public officer refrain from doing something, which it was his official duty to do, the officer will still be liable.

If the public officer accepts gifts offered without any specific purpose but simply by reason of his office, he will be liable for indirect bribery (Article 211, Revised Penal Code).

The offeror or giver of the gift under any of the foregoing scenarios shall also be criminally liable for corruption of public officials (Article 212, Revised Penal Code).

In 1972, then President Ferdinand Marcos issued Presidential Decree 46, which made it punishable for any public official or employee 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.

It should be noted that on the part of the giver, even the act of making an offer to give is prohibited.

Another law that punishes public officials or employees for receiving gifts is Republic Act 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees. Section 7 of the said law prohibits civil servants from soliciting or accepting gifts, favors, loans or anything of monetary value in the course of their official duties.

Apart from criminal liability, public officials and employees may also be held administratively liable or even be dismissed from the service.

Section 50(8), Rule 10 of the 2017 Rules on Administrative Cases in the Civil Service (RACCS) imposes the penalty of dismissal from the service upon those receiving for personal use of a fee, gift or other valuable thing in the course of official duties or in connection therewith when such fee, gift or other valuable thing is given by any person in the hope or expectation of receiving a favor or better treatment than that accorded to other persons, or committing acts punishable under the anti-graft laws.

The RACCS also specifically prohibits “soliciting or accepting directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value in the course of one’s official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of one’s office.”

The CSC has clarified that the propriety or impropriety of the gift shall be determined by value, kinship, or relationship between the giver and receiver, and the motivation. Gifts exempted from the prohibition are those from family members given without expectation of pecuniary benefit; those coming from persons with no regular, pending or expected transactions with the government office where the receiver belongs; those from private organizations given with humanitarian and altruistic intent; and those donated by one government entity to another.

Lest it be misunderstood, giving modest gifts to a public official per se is not wrong. It can be noble, thoughtful and kind as long as it is not by reason of or in connection with his public office and within the parameters set by law. Just make sure that your acts and intention are consistent with those parameters.

“It should be noted that on the part of the giver, even the act of making an offer to give is prohibited.

“If the public officer accepts gif ts offered without any specific purpose but simply by reason of his office, he will be liable for indirect bribery.