A conflict of interest

A series of stunning Supreme Court decisions and legal interventions has made Solicitor General Jose Calida one of the most influential officials of recent Philippine history. He has not only enabled the expansion of the scope of the President’s power to declare martial law, or persuaded the Court to allow the President to bury the remains of the former dictator in the Libingan ng mga Bayani; he has also won a case — the unprecedented quo warranto case against now-ousted Chief Justice Maria Lourdes Sereno — that expanded his own powers.

The majority decision in Republic vs Sereno moved a justice to remark on “the dangerous power the ponencia  grants the present and future Solicitors General without any constitutional support. With such unfettered power, the balance of power between the three coordinate departments unconstitutionally shifts, and the independence and stability of the Judiciary is eroded. This is where the danger lies.”

This extraordinary level of influence, not seen since Estelito Mendoza served Ferdinand Marcos as solicitor general, makes the recent revelation — that Calida and his family, through their completely family owned security services firm Vigilant Investigative and Security Agency Inc., have won at least 14 government contracts under the Duterte administration worth over P260 million — a true scandal.

It is a scandal, not so much in spite of a Supreme Court decision antedating the election of President Duterte, but rather because of it.

The Supreme Court, in 2013, ruled that even though the solicitor general enjoys the rank of a Cabinet secretary and attends Cabinet meetings, he (or she) is not in fact a member of the Cabinet. This means, the Court ruled, that the constitutional provision against conflict of interest, applicable to “the President, the Vice President, the Members of the Cabinet and their deputies or assistants,” does not apply to the solicitor general.

This is an unfortunate reading, and needs to be challenged.

President Duterte defended Calida vigorously. For one thing, he said the Calida family business was a previously existing one, not newly set up to take advantage of Calida’s rise to national prominence under the Duterte administration: “I know that because he’s from Davao and that was the family business.”

In another instance, the President raised an ethical issue. “Bakit, wala na ba tayong katuwirang mag negosyo (Why, don’t we have the right to go into business)?” The President offered a third reason: “So all [government contracts] have biddings, there will be a winner. If he won, then he is [the legitimate winner].”

These defenses all assume that Article VII, Section 13, the specific constitutional provision on conflict of interest, does not, in fact, apply to Calida. Considering the prominence and indeed preeminence of Calida in the Duterte administration, this assumption needs revisiting.

But even in such laws as the Code of Conduct and Ethical Standards for Public Officials (Republic Act No. 6713) and the Anti-Graft and Corrupt Practices Act (RA 3019), the very fact of a Cabinet-level official owning a company that does direct business with the government is already questionable.

Calida remains the major stockholder in his company; he has argued that his business is not, as RA 6713 phrases it, “affected by the faithful performance of official duty.”

But how can it not, when Calida’s reputation precedes him at every level of the government? The same argument can be raised, to use the phraseology of RA 3019, that he has a “pecuniary interest in [a] business, contract or transaction in connection with which he intervenes or takes part in his official capacity.”

While he no longer exercises executive control over his security business, he remains its largest stockholder—even as he performs his duties as the chief lawyer of the entire government.

This cannot be right. It may still be, barely, legal, as jurisprudence stands. But for the sake of the rule of law his office is committed to preserve, someone in his position, for whom all of government is an actual or potential client, must not be allowed to turn government into a personal client as well.