Here’s the Proof

By Raïssa Robles

I felt infinitely sad and could not believe my ears when I heard presidential spokesman Harry Roque defend the fact that the security agency owned by Solicitor General Jose Calida had cornered over P150 million worth of contracts in six government agencies.

Roque, a former constitutional law professor, said: “I don’t think mere ownership of stock certificates is prohibited by the Constitution.”

Yes it is.

It is prohibited by Article VII, Section 13. This is a special section on “conflict of interest” which covers only the top members of the Executive Department. This is what it says [underscore in red mine]:

Sec. 13. The President, Vice-President, the Member of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business,or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations, or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.” UPDATE as of May 30, 2018: Apparently, SolGen Calida is aware of Section 13. Because in Philippine Daily Inquirer’s Marlon Ramos’ report today, Marlon Ramos had this sentence attributed to Calida as saying that “the limits imposed on Cabinet members as stipulated in Article VII, Section 13 of the 1987 Constitution should not be applied to him ‘for the simple reason that he is not a member of the Cabinet, although he is conferred Cabinet rank‘ under the law. Calida misinterprets Section 13. It covers not only Members of the Cabinet but also “their deputies or assistants“. Let’s see how Calida, the presidential palace and the Department of Justice explains what the phrase “their deputies or assistants” means.

I know I am not a lawyer and I do not wish to be one.

But I am a journalist who happened to have covered the first “conflict of interest” investigation by the Senate Blue Ribbon Committee involving Jose Concepcion, Jr., then the Secretary of the Department of Trade and Industry of President Corazon Aquino.

I recall that Concepcion was minutely questioned over whether he truly divested from his business holdings and had really placed his assets in a “blind trust”. In the end, Concepcion decided to resign while protesting he did.

Let’s go back to the case at hand.

Roque is perhaps engaged in misdirection when he says Calida is not violating the Constitution. You see, Roque cites Article XI on the Accountability of Public Officers – which does contain nothing about divestment.

I also heard Roque say during his press briefing that SolGen Calida did not hide but disclosed his shares in Vigilant Investigative Security Agency Inc. in his Statement of Assets, Liabilities and Net Worth (SALN).

In fact Calida had resigned as chairman and president of Vigilant, Roque said. Roque also pointed out that no contract was ever struck between Calida’s firm and the Office of the Solicitor General (OSG).

Calida continued to own 60% of the company as of September 2016, according to Rappler based on Securities and Exchange Records.

But, Roque said, “I don’t think mere ownership of stock certificates is prohibited by the Constitution.”

Roque is right. Article XI of the Constitution does not ban what Calida is doing.

But Roque totally ignores Article VII which does.

Let’s look at Section 13 of Article VII again:

Sec. 13. The President, Vice-President, the Member of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business. or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations, or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

The Constitution was written not just for lawyers but also for ordinary people like you and me. Because it is supposed to be the contract between We the People and the leaders we choose to govern us.

I remember my dad telling me to first look for the main subject and verb in trying to discern what a sentence in the Constitution could mean.

The pertinent section, in the case of SolGen Calida, is the second sentence which states:

They shall not, during said tenure, directly or indirectly…be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations, or their subsidiaries.

Let’s break it down:

The subject here is “They” – meaning, “The President, Vice-President, the Member of the Cabinet, and their deputies or assistants.”

Clearly, Calida being a member of the Cabinet is included in the subject “They”.

The sentence is a complex one which can be broken down further into this:

They shall not, during said tenure, directly or indirectly,

practice any other profession,

participate in any business,

or be financially interested…

Now let us see what “they” are not supposed to be “financially interested” in. A long enumeration follows on what the top government officials in the Executive Branch of government SHOULD NOT BE FINANCIALLY INTERESTED IN:

in any contract with,

or in any franchise,

or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations, or their subsidiaries.



And THAT I believe, is what SolGen Calida, who happens to be THE CHIEF GOVERNMENT LAWYER violated.

Section 13 quite clearly defines what conflict of interest means for the President, the Vice President and the President’s Cabinet officials down to Cabinet deputies or assistants.

This clause clearly bans Calida’s stock ownership in VISAI. And even if he divests but his wife and children remain in the company, that still gives him an “indirect” financial interest.

This clause clearly bans VISAI, which continues to be owned by Calida, from entering into a contract with ANY government entity.

I had often wondered why this particular conflict of interest ban is only for top officials of the executive branch.

I guess it is because the President and his Cabinet have the power to sign multi-billion peso government contracts since they are supposed to execute the Program of Government.

It is precisely meant to prevent them from cornering such contracts for themselves and their families.

♦ ♦ ♦

Roque has connected the surfacing of such contracts to the quo warranto case of Supreme Court chief Justice Maria Lourdes Sereno.

All I can say is that if such contracts had surfaced earlier, they would still be wrong, with or without the quo warranto case.

And the fact that it is the SolGen involved makes the case doubly sad.

♦ ♦ ♦

The 1987 Constitution did not give any penalty to top Cabinet officials who violate the conflict of interest clause.

The case of Trade Secretary Concepcion showed that divestment was the method to cure any “conflict of interest”. Note how, when confronted with the question whether or not he had divested properly from his companies, Concepcion did the honorable thing and resigned.

Contrast that to Calida, who not only chose NOT to divest but has been somewhat belligerent in asserting there’s no problem even if his company bags multi-million peso government contracts. And the presidential palace says he does not need to divest. Resigning from the company board was enough.

I guess they don’t make public officials like they used to? With a sense of ethics? Or shame?

Anyway, whether or not Calida should have divested could become a constitutional question.

Under Republic Act 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees, non-divestment is punishable by not more than P5,000, not more than five years in jail and “disqualification to hold public office.”