Elements of corruption in public work

The President mentioned in his last SONA, the words "kickbacks," " for the boys," "initiatives" and other forms of shenanigans in public works and government projects. He should know whereof he speaks. He was a senator, congressman and governor. He is not a new guy in the block. He has been around.

Thus, he should match his words with action.  He should fire all the rascals, scoundrels and scalawags. He has the power and the mandate to do so. If he does not go beyond mere inspections in Bulacan and Pampanga and press interviews, then his words are all fury signifying nothing. He has the momentum now, and his poll ratings are on an upward trajectory. He should seize the moment and "capie diem." Hold the monster in its ugly head, and deliver the jugular blow. Fire the guilty and send them to Siberia.

As early as June 27, 2018, the Supreme Court, speaking through the pointed language of Senior Associate Justice Marvic Leonen already enumerated the elements of corruption in public works. It was in that case of graft in public works in Mindanao. There were three consolidated cases, entitled FBA versus People of the Philippines, GR No 202408, together with the case of USB versus People of the Philippines, GR No 202409 as well as the case of DMG versus People of the Philippines, GR No 202412.

All three DPWH officials were convicted. One was sentenced to a total of 100 years in prison for 10 counts of graft, and the other two were convicted of 17 counts of graft each. They were sentenced to a total of 170 years maximum penalties and were perpetually barred from holding public office, whether appointed or elected. This is the kind of poetic justice that should be meted to those who plundered the public coffers of billions intended for flood control. The president should now order all agencies concerned to move forthwith before these rascals can fly to the moon.

Justice Leonen, writing for the highest court of the land, enumerated the elements of graft under RA 3019, the Anti-Graft and Corrupt Practices Act, to include: First, the accused must be a public officer performing an administrative, judicial or official functions. Second, he must have acted with manifest partiality, evident bad faith or gross inexcusable negligence. Third, his action must have caused undue injury or loss to the Government and must have resulted in an undue advantage, benefits or preference to a favored third person, usually the favored contractor or supplier.

Jurisprudence instructs us that there is manifest partiality when there is a clear, notorious, obvious or plain inclination or predilection to favor one contractor or supplier over all the others. Evident bad faith is not merely an error in decision-making or bad judgment but is rather an action which is palpably and patently fraudulent with an obviously dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will. When public biddings are rigged and other bidders are paid so that the favored one shall prevail, there is evident bad faith.

This perversity of the mind is driven by a furtive design or some evil motive for self-interest or ulterior purposes. On the other hand, gross inexcusable negligence refers to that total absence of concern characterized by the want of slightest care, acting recklessly or omitting to act where there is a clear duty to take action. And this failure or refusal to act is not by inadvertence but by willfulness and deliberate intent, with conscious indifference to the natural consequences.

When DPWH officials have a favored contractor, for malice or for money, in collaboration with a scheming congressman who owns or a construction company, he is considered to be covered by the first element. The moment that DPWH officially acts with manifest partiality by rigging the bidding process, there is also evident bad faith. His subsequent gross and inexcusable negligence in signing the contracts, releasing the funds and certifying the projects to be completed when it has not even been started, then he should be convicted of violation of RA 3019.

In that Mindanao case mentioned above, the convicted DPWH officials allowed the public bidding on a road project to be conducted even without an engineering survey of the areas to be traversed by the public road connecting Lanao and Cotabato. The favored contractor was allowed to deploy its heavy equipment one week before the actual bidding process. And payments were made to the favored contractor in advance, even when the required quantum of completion has not been attained.

I am sure there shall be a formal investigation of all the flood control projects. All the contractors, especially in Bulacan and Cebu, are better advised to prepare for a long and protracted trial, and perhaps a long prison sentence if and when convicted. I would love to see a DPWH official and his favored flood control contractor spending 100 years in prison.