POSTSCRIPT / August 13, 2019 / Tuesday


Opinion Columnist

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Duterte: It’s only a gift, not a bribe

HAS President Duterte just loosened the Code of Conduct prohibiting bribery/extortion among government officials and employees?

The President may have done that last Friday when he told policemen and, by extension, everyone in government that it was all right to accept gifts for service rendered if these are given out of generosity or gratitude.

Drawing from his rich experience as a lawyer, prosecutor and mayor, Duterte shared with his fellow workers in government his “gift” formula for avoiding bribery/extortion charges.

Addressing police personnel in Camp Crame celebrating the 118th police service anniversary, the President said giving monetary reward or gifts to policemen and other public servants is not necessarily bribery.

He said in Taglish: “I will not stop you. If you are given (something), take it. It is not bribery… it cannot be bribery because it is allowed by law. What I mean, if there’s generosity in them, according to the anti-graft law, you cannot accept gifts? Foolishness!”

Outside the camp, his advice was widely criticized as it appeared to go against the Code of Conduct and Ethical Standards for Public Officials and Employees (RA 6713), whose Section 7 (d) says:

 “Public officials and employees shall not solicit or accept, 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 being regulated by, or any transaction which may be affected by the functions of their office.”

But under an older law, the Anti-Graft and Corrupt Practices Act (RA 3019), an exception is provided under Section 14 for “unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude or friendship.”

Section 3 of RA 3019 on the accepting of gifts, however, covers public officers acting on applications for permits or licenses, as well as contracts or transactions wherein the officer has to act – not in the solving of crimes or arresting suspects.

With their defense prepared for them by no less than the President presumably based on RA 3019, brace for not just a whiff of corruption, but a gale of gift-giving, involving the rank and file as well as the high echelons of government.

While PNP spokesman Brig. Gen. Bernard Banac said that the police are still bound by rules and laws governing their conduct, he added: “We submit to the better wisdom of our lawyer-president that it is harmless to receive gifts so long as there is no element of corruption involved and no oppression or abuse of authority is committed.”

On Twitter, Sen. Ping Lacson, a former PNP chief, warned: “Mr. President, insatiable greed starts with simple, petty graft. It could be more addicting than drugs. There is no detox, nor is there rehab facility available for addiction to money.”

Not so with Sen. Bato dela Rosa, also a former PNP chief, who said that receiving gifts was no big deal as long as they are given out of gratitude: “The President is a very pragmatic individual. Anything that is given in the spirit of goodwill is not a problem.”

Presidential spokesman Salvador Panelo said: “The President is right. Bribery comes in if you agree to receive something because you will be doing something for the other party. But if you do something because it is part of your duty under the law and there were no discussions… there is nothing wrong if you are given a reward for what you did.”

We wonder how that sounds to Transportation Secretary Arthur Tugade, who tells his personnel, especially the managers, that they should never expect or ask for any gift or favor for the service they render – nor accept any gift or reward even if they did not solicit or ask for it.

 When UNCLOS prevails over Constitution

TO OBVIATE any confusion over his statement last Sunday that the United Nations Convention on the Law of the Sea (UNCLOS) sometimes prevails over the Constitution, arbitration expert Mario E. Valderrama clarified yesterday:

“The traditional argument is that the status of a treaty is just like a law or a statute. Ergo, the Constitution shall prevail over a treaty.  That argument will not apply re the Philippine economic rights over resources in the West Philippine Sea.

“First, we are talking about economic rights over resources that are outside the recognized territorial boundaries of the Philippines. Under the principle of territoriality, the laws of a state cease to be effective outside its territorial boundaries.

“Second, the Philippine economic rights are not inherent to the Philippines but are, rather, in the nature of granted rights. Before the effectivity of UNCLOS, the Philippines did not have those ‘exclusive’ rights. It was only when UNCLOS became effective that the country acquired those rights.

“The grant, however, is not absolute. It is subject to the provisions of UNCLOS.

“Stated another way, if we want those exclusive economic rights we have to comply with the rules of the grantor, UNCLOS. If we do not want to comply with those rules, then we do not get those rights.

“Third, UNCLOS is a take it or leave it treaty, or, as some would say, it is a full packaged treaty. A state party is not allowed to make any exception or reservation other that those that UNCLOS itself allows.

“A state party like the Philippines cannot say that its entry into UNCLOS is subject to the provisions of its (the Philippines’) laws and Constitution. There are other provisions with substantially similar contents.

“A more interesting question: May contracting state parties (say the Philippines and China) opt out of UNCLOS provisions?

“Answer: Yes. It is allowed by UNCLOS. But their contract would only bind them and it should not affect the rights of other states.

“For example, they can say in their contract that the governing law of their contract shall be Philippine law, or Chinese law, or any other system of law. In such a case, any dispute between them shall be resolved using the law that they have agreed upon, and not by UNCLOS rules anymore.”

(First published in the Philippine STAR of August 13, 2019)

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