THE GIVER AND TAKER

January 27, 2024 Opinion

Not quite heaving a sigh of relief yet Senator Jinggoy Estrada must be feeling out of sorts these days after the Fifth Division of the Sandiganbayan acquitted him of plunder, along with the infamous businesswoman Janet Lim-Napoles, while in the same breath convicting him of one count of bribery and two counts of indirect bribery. His sentence or penalty for such conviction is a jail term of eight years to nine year and four months for direct bribery and two years to three years for each count of indirect bribery. Had Senator Estrada been convicted of plunder also
the penalty to be imposed by the anti-graft court would have been reclusion perpetua or permanent imprisonment.

Not only that, but upon conviction or the crime of plunder an additional penalty of losing all retirement or gratuity benefits under the law is likewise imposed. So the Senator may have been acquitted for the graver offense of plunder but will still have to contend on how wriggle himself out of his conviction for direct and indirect bribery. Now under Article 210 of the Revised Penal Code direct bribery may be committed by a public officer in three ways. First is agreeing to perform, or performing an act which constitutes a crime in connection with the performance of his official duties for a consideration of any offer, promise, gift or present.

Second is by accepting a gift in consideration for the performance of an act in connection with his official duties but which does not constitute a crime and third is by agreeing to refrain, or by actually refraining from doing an act which is his official duty to do, in consideration of an offer, promise, a gift or present. On the other hand in Article 211 of the same law we find that indirect bribery is committed by any public officer who shall accept gifts offered to him by reason of his office. The main element for both offenses is that the taker is a public officer who agreed and accepted something from somebody either because of his office or because he has to do, not do or has done
something in exchange for a consideration of an offer, promise, a gift or present.

The law is clear that even if it is merely an offer or a promise then the taker who is a public officer is liable for the crime of bribery. In an interview Senator Estrada expressed confusion as to the decision handed down by the Fifth
Division of the Sandiganbayan since he claims that what was included in the information sheet provided by the said
court was the charge against him for only plunder. He then expressed determination that he will challenge the verdict up to the final level of the Supreme Court. The court on the other hand explained in its 400-page ruling that even with the lack of enough evidence to convict the Senator for plunder he could be convicted for a lesser offense
which in this case is bribery.

Citing the variance doctrine the court pointed out that this “allows for the conviction of an accused for a crime proved that is different from but necessarily included in the crime charged.” In the larger perspective bribery is actually a crime that “involves the making of illegal payment or offering or anything of value to persons in official positions with the intention of inducing or rewarding them. Anyone in power or position of authority who acts dishonestly and fraudulently is said to be corrupt.” Here both the giver and the taker are liable for bribery considering that one is the tempter and the other is the tempted. Or in bribery it will always take two to tango.

In hindsight corruption has become an endemic social ill in the country that nobody really seems to mind until one is caught ‘with his hand in the cookie jar’ so to speak. If bribery is to be avoided in the future the penalty to be imposed by the court for committing the offense, both for the giver and the taker, should be the penalty of reclusion perpetua same as that of plunder. For now Senator Estrada has his hands full in trying his best to overturn the decision of the Sandiganbayan convicting him of bribery. As far as Napoles is concerned she will certainly reap what she sowed.