Illegal Use of Public Funds
On Criminal Law
Illegal Use Of Public Funds
ART.220
Illegal use of public funds or property. - Any public officer who shall apply any public fund or property under his administration to any public use other than for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damages or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification.
If no damage or embarrassment to the public service has resulted, the penalty shall be a fine from 5 to 50 per cent of the sum misapplied.
ELEMENTS OF TECHNICAL MALVERSATION:
1. That the offender is a public officer;
2. That there is public fund or property under his administration;
3. That such public fund or property has been appropriated by law or ordinance (without this, it is simple malversation) ; and
4. That he applies the same to a public use other than for which such fund or property has been appropriated by law or ordinance.
To distinguish this article with Art 217 (malversation), in illegal use of public funds or property, the offender does not derive any personal gain, the funds are merely devoted to some other public use.
Absence of damage is only a mitigating circumstance.
Illegal use of public funds or property is also known as technical malversation.
The term technical malversation is used because in this crime, the fund or property involved is already appropriated or earmarked for a certain public purpose.
Bar Exam Question (1996)
Technical Malversation (1996)
Elizabeth is the municipal treasurer of Masinloc, Zambales. On January 10, 1994, she received, as municipal treasurer,
from the Department of Public Works and Highways, the amount of P100,000.00 known as the fund for construction, rehabilitation, betterment, and Improvement (CRBI) for the concreting of Barangay Phanix Road located in Masinloc, Zambales, a project undertaken on proposal of the Barangay Captain. Informed that the fund was already exhausted while the concreting of Barangay Phanix Road remained unfinished, a representative of the Commission on Audit conducted a spot audit of Elizabeth who failed to account for the Pl00,000 CRBI fund. Elizabeth, who was charged with malversation of public funds, was acquitted by the Sandiganbayan of that charge but was nevertheless convicted, in the same criminal case, for illegal use of public funds. On appeal, Elizabeth argued that her conviction was erroneous as she applied the amount of P50,000.00 for a public purpose without violating any law or ordinance appropriating the said amount for any specific purpose. The absence of such law or ordinance was, in fact, established. Is the contention of Elizabeth legally tenable? Explain.
Suggested Answer:
Elizabeth's contention that her conviction for illegal use of public funds (technical malversation) was erroneous, is legally tenable because she was charged for malversation of public funds under Art. 217 of the Revised Penal Code but was convicted for Illegal use of public funds which is defined and punished under Art. 220 of said Code. A public officer charged with malversation may not be validly convicted of illegal use of public funds (technical malversation) because the latter crime is not necessarily included nor does it necessarily include the crime of malversation. The Sandiganbayan should have followed the procedure provided in Sec. 11, Rule 119 of the Rules of Court and order the filing of the proper Information. (Parungao us. Sandiganbayan. 197 SCRA 173.) From the facts, there is no showing that there is a law or ordinance appropriating the amount to a specific public purpose. As a matter of fact, the problem categorically states that the absence of such law or ordinance was, in fact, established." So, procedurally and substantially , the Sandiganbayan's decision suffers from serious Infirmity.
ART.220
Illegal use of public funds or property. - Any public officer who shall apply any public fund or property under his administration to any public use other than for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damages or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification.
If no damage or embarrassment to the public service has resulted, the penalty shall be a fine from 5 to 50 per cent of the sum misapplied.
ELEMENTS OF TECHNICAL MALVERSATION:
1. That the offender is a public officer;
2. That there is public fund or property under his administration;
3. That such public fund or property has been appropriated by law or ordinance (without this, it is simple malversation) ; and
4. That he applies the same to a public use other than for which such fund or property has been appropriated by law or ordinance.
To distinguish this article with Art 217 (malversation), in illegal use of public funds or property, the offender does not derive any personal gain, the funds are merely devoted to some other public use.
Absence of damage is only a mitigating circumstance.
Illegal use of public funds or property is also known as technical malversation.
The term technical malversation is used because in this crime, the fund or property involved is already appropriated or earmarked for a certain public purpose.
Bar Exam Question (1996)
Technical Malversation (1996)
Elizabeth is the municipal treasurer of Masinloc, Zambales. On January 10, 1994, she received, as municipal treasurer,
from the Department of Public Works and Highways, the amount of P100,000.00 known as the fund for construction, rehabilitation, betterment, and Improvement (CRBI) for the concreting of Barangay Phanix Road located in Masinloc, Zambales, a project undertaken on proposal of the Barangay Captain. Informed that the fund was already exhausted while the concreting of Barangay Phanix Road remained unfinished, a representative of the Commission on Audit conducted a spot audit of Elizabeth who failed to account for the Pl00,000 CRBI fund. Elizabeth, who was charged with malversation of public funds, was acquitted by the Sandiganbayan of that charge but was nevertheless convicted, in the same criminal case, for illegal use of public funds. On appeal, Elizabeth argued that her conviction was erroneous as she applied the amount of P50,000.00 for a public purpose without violating any law or ordinance appropriating the said amount for any specific purpose. The absence of such law or ordinance was, in fact, established. Is the contention of Elizabeth legally tenable? Explain.
Suggested Answer:
Elizabeth's contention that her conviction for illegal use of public funds (technical malversation) was erroneous, is legally tenable because she was charged for malversation of public funds under Art. 217 of the Revised Penal Code but was convicted for Illegal use of public funds which is defined and punished under Art. 220 of said Code. A public officer charged with malversation may not be validly convicted of illegal use of public funds (technical malversation) because the latter crime is not necessarily included nor does it necessarily include the crime of malversation. The Sandiganbayan should have followed the procedure provided in Sec. 11, Rule 119 of the Rules of Court and order the filing of the proper Information. (Parungao us. Sandiganbayan. 197 SCRA 173.) From the facts, there is no showing that there is a law or ordinance appropriating the amount to a specific public purpose. As a matter of fact, the problem categorically states that the absence of such law or ordinance was, in fact, established." So, procedurally and substantially , the Sandiganbayan's decision suffers from serious Infirmity.
Bigwas
Bigwas blog about Criminal law and Procedure, Criminology and Crimes, Philippine Banking and Finance, Insurance and Investment.