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Respect for the judgment call in Benny Tan acquittal

(Article published in the February 4, 2002 issue of TODAY, Business Section)

The recent acquittal of former Bureau of Internal Revenue commissioner Bienvenido Tan by the fourth division of the Sandiganbayan is not just the personal triumph of an innocent man over an undeserved prosecution. It is that and much more.

It is a vindication of the bona fide judgment call, a timely morale booster for honest government employees whose duties require the exercise of discretion in the interest of the common good. It is an assurance as well as a cautionary notice that the antigraft law can no longer be invoked to petrify public officials into inaction nor be used to exact revenge on them merely for doing what they honestly believe ought to be done.

Bienvenido Tan, then-Commissioner of Internal Revenue, in the exercise of the authority granted to him under Section 204 of the National Internal Revenue Code of 1997, approved the compromise of San Miguel Corp.’s liabilities for taxes for the period January 1, 1985 to March 31, 1986. Some quarters were not happy with the compromise, and so he was haled to court and accused of violating Section 3(e) of the Antigraft and Corrupt Practices Act (Republic Act 3019). On March 2, the Sandiganbayan found him guilty and sentenced him, among other penalties, to six (6) years and one (1) month imprisonment as minimum to fifteen (15) years as maximum. That decision was reconsidered by the same division last January 23, 2001.

The acquittal was based on various grounds, the most significant for Mr. Tan’s colleagues in government, however, was the court’s pronouncement on Section 3(e) of the Anti-Graft law…declaring it a corrupt practice (and therefore unlawful act) of any public officer, in the course of the performance of his duties, to cause any undue injury to any party, including the government, through manifest partiality, evident bad faith or gross inexcusable negligence.

Though couched in words too general to define and too imprecise to prove, Section 3(e), by reason of that very generality and imprecision, is very frequently invoked to support the prosecution of public officials, even in the flimsiest of factual grounds, it is all too easy to cry partiality or bad faith or negligence. And, with facile lawyerly exaggerations, "injury" is always pleaded as "undue injury"; "partiality" is invariably "manifest partiality"; "bad faith" is naturally evident and "negligence" is, as a matter of course, gross inexcusable. In no small measure, the threat of having to face in court an accusation of violating Section 3(e) is responsible for the culture of inaction that permeates the bureaucracy.

 Thanks to the acquittal of Benny Tan, we are again reminded that merely accusing a person of violating Section 3(e) will not necessarily result in his conviction. In order to convict an accused of violating Section 3(e), the court will have to be convinced beyond reasonable doubt that (a the accused of violating Section 3(e), the court will have to be convinced beyond reasonable doubt that (a) the accused is a public officer (or a private person in conspiracy with a public officer); (b) the accused acted in the performance of his duties or in relation to his public position: (c) he caused undue injury to a p arty, private or the government itself; and (d) he did so with manifest partiality, evident bad faith, or gross inexcusable negligence. Bienvenido Tan was found not to have caused any injury, due or undue, to the government and that he acted in good faith and in accordance with his powers and functions as Commissioner of Internal Revenue.

The acquittal reiterates the hurdles the prosecution must overcome in order to successfully prove violation of Section 3(e). the case of Llorente Jr. v. Sandiganbayan (287 SCRA 382) decided by the Supreme Court on March 11, 1998 gives some guidance on how to understand some of its significant elements. "Undue injury" requires proof I actual injury or damage. It must be specified, quantified and proven to the point of moral certainty. "Bad faith" is not mere bad judgment or negligence. It requires dishonest purpose; it partakes of the nature of fraud. It is acting entirely without rhyme or reason.

Section 3(e) has had the effect of deterring good men from entering the public service and of discouraging those in the service from exercising their initiative and pursuing bold measures called for by our perilous times. The Benny Tan acquittal should have the effect of ridding their hearts of the heretofore chilling effect of Section 3(e).