6 January 2021
The gift-giving season is kicking into full gear. As Christmas day draws nearer, frantic shoppers are taking advantage of online and mall sales to purchase gifts for their loved ones, colleagues, and friends. But family and friends are not the only recipients of gifts during this season. What are the rules governing gifts to public officers and employees?
There are actually several laws governing this issue, which may be a timely matter to tackle under the circumstances.
We find the definition of a gift in Republic Act No. 6713 (RA 6713), or the Code of Conduct and Ethical Standards for Public Officials and Employees. Under this law, a gift is a thing or a right to dispose of gratuitously, or any act or liberality, in favor of another who accepts it. It includes a simulated sale or an ostensibly onerous disposition thereof. It excludes, however, an unsolicited gift of nominal or insignificant value not given in anticipation of, or in exchange for, a favor from a public official or employee.
RA 6713 makes it prohibited for any public official or employee to solicit or accept whether directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation regulated by the office or any transaction affected by the latter.
But under the Implementing Rules and Regulations (IRR) of RA 6713, the prohibition shall not include:
(1) Unsolicited gift of nominal or insignificant value not given in anticipation of, or in exchange for, a favor from a public official or employee or given after the transaction is completed, or service is rendered. As to what is a gift of nominal value will depend on the circumstances of each case taking into account the salary of the official or employee, the frequency or infrequency of the giving, the expectation of benefits, and other similar factors.
(2) A gift from a member of his family or relative as defined in the Code of Ethics on the occasion of a family celebration, and without any expectation of pecuniary gain or benefit.
(3) Nominal donations from persons with no regular, pending, or expected transactions with the department, office or agency with which the official or employee is connected, and without any expectation of pecuniary gain or benefit.
(4) Donations coming from private organizations whether local or foreign, which are considered and accepted as humanitarian and altruistic in purpose and mission. (Rule X, Sec. 1)
As to gifts or grants from foreign governments, a gift of nominal value tendered and received as a souvenir or mark of courtesy, or a scholarship or fellowship grant or medical treatment; or travel grants or expenses for travel taking place entirely outside the Philippine if such acceptance is appropriate or consistent with the interests of the Philippines, and permitted by the branch, agency or head of office, are allowed [RA 6713, Sec. 7 (d)].
Presidential Decree (PD) No. 46, otherwise known as the law Making it Punishable for Public Officials and Employees to Receive, and for Private Persons to Give, Gifts on any occasion, including Christmas, prohibits public officers from receiving gifts and entertainment and private individuals from offering the same when the gift is given by reason of the public officer or employee’s position. The prohibition includes the holding of parties or entertainment in honor of the officer or employee or of his/her immediate relatives.
Republic Act No. 3019 (RA 3019), or the Anti-Graft and Corrupt Practices Act, covers a wider range of offenses but at the same time provides a narrow exception consistent with the IRR of RA 6713. RA 3019 defines the act of “receiving any gift” by a public official as including accepting directly or indirectly a gift from a person other than a member of the public officer’s immediate family, in behalf of himself or of any member of his family or relative within the fourth civil degree, either by consanguinity or affinity, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the circumstances manifestly excessive.
RA 3019 considers requesting a gift in connection with any contract or transaction wherein the public officer in his official capacity has to intervene or in exchange for help to be given in securing or obtaining any Government permit or license as a corrupt act punishable by law.
Note that the person giving the gift is prosecuted together with the offending public officer and are subject to the same penalties. Said persons, upon conviction, may be permanently or temporarily disqualified in the discretion of the court, from transacting business in any form with the government.
While RA 3019 provides a narrow exception to this no-gift policy, referring to unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage (Sec. 14, RA 3019), it must be remembered that exceptions are strictly construed. The general rule under RA 3019 is that no gifts are allowed if the value is manifestly excessive.
Better make sure your Christmas gifts list do not go against these prohibitions to have a merry, joyful and worry-free enjoyment of the season.
First published on The Daily Tribune.
For further information, please contact:
Nilo T. Divina, Managing Partner, DivinaLaw
nilo.divina@divinalaw.com
