There is an understandable expression of frustration, on the part of the public, over the DOH delay in the purchase and release of personal protective equipment (PPE) and other medical supplies/equipment needed to combat the Coronavirus Disease 2019 (Covid-19). The agencies of the government, as well as the Local Government Units (LGUs), have calamity/emergency funds or quick reaction funds. There are times when funds allocated for a specific purpose or project is not enough and, when rapid action is needed in times of crises or emergencies, the responsible officer is faced with a sensitive issue. 

To illustrate, we cite the experience of the Mayor of Leyte, Leyte, back in 2001. To assist indigent calamity victims, the town provided construction materials to rebuild the calamity victims’ homes. The town also had a feeding program for malnourished children.

The construction was undertaken, for free, by the beneficiaries. When the construction was about 70% complete, however, the beneficiaries stopped working because they had to find food for their families. The stoppage could result in the loss of construction materials, particularly the cement. The town’s staff recommended to the Mayor that the excess rice and sardines, which was intended for the feeding program, be given to the beneficiaries so that they can continue rebuilding their homes. After consultation with the town’s accounting department, the Mayor ordered the release of the the following: four sacks of rice and two boxes of sardines.

A former member of the Sangguniang Bayan (SB) filed a criminal case for technical malversation penalized under Article 220 of the Revised Penal Code, which reads:

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.

The Sandiganbayan found the Mayor guilty of technical malversation. The Supreme Court upheld the conviction of the Mayor. Technical malversation has three elements: 

• a) that the offender is an accountable public officer; 

• b) that he applies public funds or property under his administration to some public use; and 

• c) that the public use for which such funds or property were applied is different from the purpose for which they were originally appropriated by law or ordinance.

The Mayor argued that he acted in good faith. Unfortunately, good faith is not a defense in technical malversation. Dura lex sed lex. The Mayor’s act, “no matter how noble or miniscule the amount diverted, constitutes the crime of technical malversation.” Criminal intent is not an element of technical malversation. “The law punishes the act of diverting public property earmarked by law or ordinance for a particular public purpose to another public purpose. The offense is mala prohibita, meaning that the prohibited act is not inherently immoral but becomes a criminal offense because positive law forbids its commission based on considerations of public policy, order, and convenience.It is the commission of an act as defined by the law, and not the character or effect thereof, that determines whether or not the provision has been violated. Hence, malice or criminal intent is completely irrelevant.” [Ysidro vs. People of the Philippines, G.R. No. 192330, 14 November 2012]