UNDER Philippine law, the transfer of public funds or property for purposes other than what was originally intended by law or ordinance is a crime. Technical malversation under Article 220 of the Revised Penal Code (RPC) penalizes the act of diverting public resources from their legally intended purpose. It states that, "Any public officer who shall apply any public fund or property under his administration to any public use other than that for which such fund or property was appropriated by law or ordinance" is guilty of the offense.
For a public officer to be found guilty of technical malversation, the following elements must be established: The offender is an accountable public officer; the officer applies public funds or property under his administration to a public use; and the public use for which the public funds or property were applied is different from the purpose for which they were originally appropriated by law or ordinance.
Technical malversation is different from malversation under Article 217 of the RPC. The Supreme Court distinguished the two crimes in the case of Parungao v. Sandiganbayan (GR 96025, May 15, 1991) (the "Parungao case"). For malversation, the public officer misappropriates public funds or property for personal use or allows another person to do so. On the other hand, technical malversation involves a key element where the funds diverted must have been intended by law or ordinance for a specific purpose. If the public officer diverts these resources to a different public use, even without personal gain, the crime is already committed.
The element was highlighted in the Parungao case, where a municipal treasurer was accused of diverting funds allocated for road concreting in Barangay Jalung, Pampanga, to pay laborers in other barangay (villages). The Supreme Court ruled that since no law or ordinance specifically appropriated the funds for the road project, the public officer could not be convicted of technical malversation.
Another essential aspect of technical malversation is that the mere act of diverting public funds or property to a different purpose constitutes the crime. In the case of Ysidoro v. People (GR 192330, Nov. 14, 2012) (the "Ysidoro case"), Mayor Ysidoro of Leyte, Leyte, released four sacks of rice and two boxes of sardines intended for the municipality's supplemental feeding program to beneficiaries of a shelter assistance program. Ysidoro argued that he acted in good faith, claiming that the diversion was also meant for the poor who were also in urgent need of food.
However, the Supreme Court clarified that criminal intent is not an element of technical malversation. It is a "mala prohibita" crime that means that while the prohibited act is not necessarily immoral, it is considered as a criminal offense as the law expressly forbids its commission. The court added that Ysidoro's act, "no matter how noble or miniscule the amount diverted, constitutes technical malversation."
But this does not mean that public officers can no longer divert funds for different purposes. Still in the Ysidoro case, the court cited Section 336 of the Local Government Code, providing that a local chief executive or the Sanggunian may be authorized by an ordinance to augment any item in the approved annual budget for their respective offices, as long as the funds to be used are considered savings in other items within the same expense class of their appropriations. In other words, an ordinance allowing the transfer of funds must first be enacted before such transfer can occur, and only funds deemed as savings may be transferred.
Technical malversation under Article 220 of the RPC ensures that public funds and property are strictly used in accordance with the law or ordinance that earmarked such funds for a specific purpose. While public officers might have good intentions in diverting public resources, such intentions are not enough. There is a proper procedure that must be followed before they can divert those resources.
Rey Christian M. Guintibano is a junior associate of Mata-Perez, Tamayo & Francisco (MTF Counsel). This article is for general information only and is not a substitute for professional advice where the facts and circumstances warrant. If you have any question or comment regarding this article, you may email the author at [email protected] or visit MTF website at www.mtfcounsel.com.