The Office of the Ombudsman has ordered the filing of graft charges against Davao del Norte 2nd Dist. Rep. Antonio Floirendo Jr. for having a financial interest in a banana company that has a joint venture agreement with the Bureau of Corrections.

But, the Ombudsman acknowledged this move—which arose from a complaint by House Speaker Pantaleon Alvarez—would open up other lawmakers to graft charges just for holding small stakes in companies dealing with government projects.

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READ: Ombudsman approves Speaker’s graft complaint vs. Floirendo

“This Office understands that indeed such an interpretation of the Constitution will open members of the House of Representatives, otherwise owning small number of stocks of a corporation having a contract with the government to possible indictment for Sec. 3(h) of [Republic Act No.] 3019,” read the 11-page resolution.

Still, the Ombudsman maintained: “The duty of this Office is to apply the law. To do otherwise is to supplant the wisdom of the people who approved the Constitution with its own.”

Article VI, Section 14 of the 1987 Constitution states that no senator or House member shall “directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government… during his term of office.”

Cause for concern?

House good government committee chair Rep. Johnny Pimentel, whose panel is currently investigating the BuCor’s joint venture with Tagum Agricultural Development Corp. (Tadeco), said the Ombudsman’s pronouncements are a “cause for concern.”

“I think it’s really a cause for concern ’cause I’m sure many [congressmen] also have business interests,” Pimentel told the Inquirer in a text message.

“Sometimes, the Ombudsman is unreasonable. I think their powers may be clipped,” added the lawmaker from Surigao del Sur 2nd District.

On the other hand, Akbayan Party-list Rep. Tomasito Villarin lauded the Ombudsman’s “determination” and said it would be “thus unwise for Congress to push through with any impeachment complaint against her as people will view it as tainted with vested interests.”

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No matter how small

Villarin said lawmakers are “not above the law and should have no pecuniary interest involving government contracts no matter how small it is.”

“It now opens up issues against possible conflict of interests legislators have on their links to companies engaged in mining, energy, telcos, plantations, among others,” Villarin told the Inquirer.

Edre Olalia, president of the National Union of People’s Lawyers, said the Ombudsman was “just being faithful to the maxim that public office is a public trust.”

“Otherwise, it will perpetuate the reality that public office is used, wittingly or unwittingly, as a business,” Olalia said. “The happy days and good times of cronyism and bureaucrat capitalism must end so that genuine public service should be the exclusive motivation of our public officials.”

Ramon Casiple, executive director of the Institute for Political and Electoral Reforms, noted that if the constitutional provision was “strictly applied, many public officials may be affected.”

‘Probable breach’

The finding of probable cause against Floirendo arose from the complaint lodged by Alvarez only this March for violation of Section 3(h) of the Anti-Graft and Corrupt Practices Act. The said provision prohibits public officers from having direct or indirect financial or pecuniary interest in any transactions prohibited by the Constitution.

The Ombudsman noted Floirendo was serving as a representative when Tadeco and BuCor entered into the agreement in 2003.

At the time, Floirendo held 75,000 shares in Tadeco worth P7.5 million; the Ombudsman added most of Tadeco’s stocks were owned by the Floirendo family through the holding company Anflo Management and Investment Corp. (Anflocor).

“A plain reading of the constitutional provision shows that respondent [Floirendo] probably breached it,” read the resolution signed by Ombudsman Conchita Carpio Morales on Sept. 18.

Floirendo argued he was not involved in the negotiations and no intervention from Congress took place. But, the Ombudsman found this irrelevant because “mere prohibition by the Constitution or by law of financial interest in a contract suffices.”

The Ombudsman likewise rejected the lawmaker’s claim that the Code of Conduct and Ethical Standards for Public Officials and Employees did not require him to divest his shares in Tadeco.

Floirendo also argued the Constitutional Commission’s deliberations showed that “not every interest, however minuscule, indirect or incidental” is covered by the constitutional prohibition.

But, the Ombudsman noted that excerpt referred to sectoral or party-list representatives’ memberships in their organizations and “has no application at all to the present complaint.”

“Had the intention been to exclude ownership of small value of stocks in a corporation, the framers of the Constitution could have stated it,” the Ombudsman said.

COA disapproval

Alvarez in his March 13 complaint questioned the joint venture agreement covering 5,308.36 hectares of Davao Penal Colony land, which was first entered into in 1969 and extended for another 25 years in May 21, 2003.

The Commission on Audit in an April 25 audit observation memorandum said the Tadeco agreement was unconstitutional for exceeding the 1,000-ha ceiling set by the 1973 and 1987 Constitutions, and the 1,024-ha cap by the 1935 charter, on the lease of land to private corporations.

COA also said it violated the 1987 Constitution’s 50-year limit on the use of public lands by private corporations. The agreement also covered inalienable “reserved lands” that are “beyond the commerce of man.” Lastly, it found the selection of Tadeco did not go through public auction as required by Section 26 of Commonwealth Act No. 141, or the Public Land Act.

In its June 29 annual audit report of the BuCor, COA recommended criminal action against former officials of BuCor and its parent agency, the Department of Justice, who approved the penal land’s long-term use.

Meanwhile, the inquiry being carried out by Pimentel’s committee is still ongoing.

Tadeco, the world’s largest contiguous banana plantation, sells its produce to the Del Monte and Dole brands. Floirendo was the top financier of President Rodrigo Duterte’s election campaign, shelling out a total of P75 million, or a fifth of the P376.01-million kitty.

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