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a. A Member shall act at all times in a manner that shall reflect creditably on the House; xxxxx
xxxxx
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f. A Member shall not personally x x x x be directly or indirectly 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 any governmentowned or controlled corporation, or its subsidiaries, during the Member’s term of office; g. A Member shall not intervene in any matter before any office of the government for personal pecuniary benefit x x x x x . xxxxx
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x x x x x.”
4. The charges against respondent herein for directly/indirectly interested in any contract, franchise or special privilege granted by the government1 and for intervening in any matter before any office of the government for his own personal pecuniary benefit 2, do not simply involve propriety or impropriety of acts or conduct in parliamentary proceedings. They relate to serious culpable acts of graft and corruption abhorred expressly by the Constitution. Thus, this complaint is not simply anchored on violation of the Code of Conduct, but it is founded by culpable violation of the Constitution and the Anti-Graft and Corrupt Practices Act, the provisions of which are as follows:
VIOLATION OF THE CONSTITUTION “ Section 14. No Senator or Member of the House of Representatives may personally appear x x x x x x Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the Government for personal pecuniary benefit x x x x x.”3
VIOLATION OF ANTI-GRAFT AND CORRUPT PRACTICES ACT “
Section 3. Corrupt Practices of Public Officers. xxxxx
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xxxxx
(h)Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in x x x x x in which he is prohibited by the Constitution or by any law from having any interest.”4
FACTS
1
Rules of the House of Representatives, Rule XIX Sec. 139(f) Rules of the House of Representatives, Rule XIX Sec. 139(g) 3 CONSTITUTION, Art. VI, Sec. 14 4 R.A. 3019 (Anti-Graft and Corrupt Practices Act), Sec. 3(h). 2
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The respondent is financially interested in government contract, award or special previlige during his present term as Congressman. 5. The respondent has been elected Congressman of the 1 st District of Surigao del Sur in May 2016 national and local elections. He took his oath and assumed office as Representative of said legislative district. 6. While holding elective office in this present 17 th Congress, the respondent is also employed as President of Claver Mining and Development Corporation (CMDC). He also claims that he owns and controls almost all the shares of this mining company. His name is prominently posted in existing CMDC official website.5 This is likewise evidenced by recent official letters signed by the respondent in his capacity as CMDC President.6 7. The CMDC is a private mining company that has a valid and existing award, concession, franchise or special privilege embodied in its Mining Production Sharing Agreement (MPSA) with the Republic of the Philippines.7 On the basis of this MPSA, the respondent was able to occupy and undertake operation in 433-hectare mineral land mostly located in Claver, Surigao del Norte and partly in Carrascal, Surigao del Sur, within the legislative district where the respondent Congressman represents. 8. The respondent continuously extracted, transported, exported and earned multi-million income from shiploads of mineral ore therefrom. As of date, or while holding public office as incumbent Congressman, he remains CMDC’s chief executive and is taking advantage of his official position in pursuing his personal financial/pecuniary interest on the award, concession, franchise or special privilege derived from the MPSA. Moreover, he is operating the mining site and exported shiploads of mineral ore therefrom despite existing DENR Order to suspend its operation. 8 9. The foregoing clearly establishes the respondent’s boldness and temerity to violate the House Rules on Code of Conduct, the Anti-Graft and Corrupt Practices Act and the 1987 Constitution.
The respondent intervened in government offices for his personal pecuniary benefit during his present term as Congressman. 10. The respondent also intervened, interceded and/or represented himself to government offices for his personal financial or pecuniary interest. He has existing and on-going transactions with the Mines and Geosciences Bureau (MGB) of the Department of Environment and Natural Resources (DENR), to pursue his financial or pecuniary interest in said award, concession, franchise or special privilege from the government. The transactions include, among others, persistent requests for lifting of CMDC suspension and for the release, renewal or extension of transport and export permits. 11. Despite the suspension, the respondent personally intervened and/or represented himself to the DENR-MGB for issuance of Ore Transport Permits (OTPs) and Mineral Ore Export Permits
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6
7
8
Printed copy of some pages taken from CMDC website: www.clavermineral.com , accessed on 08 November 2016, is hereto attached as ANNEX “B”and made integral part of this Complaint. Photocopy of CMDC Letter dated 15 August 2016 is hereto attached as ANNEX “C” and another CMDC Letter dated 22 August 2016 is hereto attached as ANNEX “D”; both documents being appended and made part of this Complaint. Photocopy of the first few and last pages of the MPSA is attached as ANNEX “E” and made integral part of this Complaint. Photocopy of DENR Order of Suspension dated 18 July 2012 is hereto attached as ANNEX “F” and made integral part of this Complaint.
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(MOEPs) in favor of CMDC. respondent and MGB-DENR.9
This is evidenced by the exchange of correspondence between
12. In utter display of his political power or influence, the respondent personally appeared, intervened and met with then DENR Undersecretary Leo L. Jasareno during the Committee deliberation of DENR budget on 05 September 2016. The purpose was obviously to demand for extension of OTP and MOEP.10 Right then and there, Usec. Jasareno verbally instructed MGB Caraga OIC Regional Director Daniel S. Belderol to grant extension for the respondent company’s OTP/MOEP. Sensing anomaly of the verbal instruction, OIC Dir. Belderol sent a Memorandum requesting Usec. Jasareno to issue a written instruction relative to the respondent’s demand. 11 The latter did not issue any written order. Interestingly, OIC Dir. Belderol was relieved from Caraga region and a new Director has been assigned to take his place. 13. It did not take too long for the respondent to prevail using his political pressure and influence. He succeeded in causing the DENR-MGB to grant extension of OTP and MOEP in favor of his mining company.12 It has been reported that the respondent has been able to export a shipload and will soon be exporting more shiploads of high grade mineral ore shortly after he was granted extension of the OTP/MOEP.13 It should be noted that the said OTP/MOEP expired as early as 07 July 2016 and they are no longer extendible beyond the date of expiration. But his unwarranted intervention made it happen because the new Caraga Director Roger de Dios simply stamped on the face of the expired OTP/MOEP as “APPROVED” valid up to 20 Nov 2016, without indicating the date of approval. Without a date, the said OTP/MOEP appeared to have been legitimately extended before they expired. Apparently, the magnitude of respondent’s power and influence goes beyond state of reality as he has the capacity to resurrect the lifeless OTP/MOEP. 14. The fact remains that the respondent personally intervened in government offices during his term of office which is expressly prohibited by the House Rules on Code of Ethics, the Anti-Graft and Corrupt Practices Act and the 1987 Constitution.
Respondent’s un-parliamentary disorderly conduct.
and
15. During deliberation in the Committee on Constitutional Amendments on 12 October 2016, the respondent conducted himself in disorderly and un-parliamentary manner. His disorderly actuations were committed against the Chairman of the Committee and some of his colleagues. His utterly disrespectful, un-parliamentary and unruly conduct unfolded after the Committee had settled to vote on the motion of Rep. Garcia. 16. The voting would have proceeded after long and exasperating disquisition, but it was further delayed by succeeding interjections/propositions on matters that were essentially taken up earlier. The respondent proposed to amend once again the motion of Rep. Garcia to include invitation for the Senate to join the House in revising the Constitution. Sensing Rep. Pichay’s 9
Photocopy of Letter addressed to CMDC/Attn. Prospero A. Pichay, Jr. dated 02 August 2016 is hereto attached as ANNEX “G”; Photocopy of Letter addressed to CMDC/Attn. Prospero A. Pichay, Jr. dated 15 August 2016 is hereto attached as ANNEX “H”; both documents is appended herewith and made part of this Complaint. 10 At this point of time, CMDC’s OTP and MOEP had already expired since 07 July 2016. 11 Photocopy of Memorandum from OIC Dir. Belderol dated 15 Sept. 2016 is hereto attached as ANNEX “I” and made integral part of this Complaint. 12 Photocopy of OTP No. MGB-13-2016-250 dated 07 Jun 2016 with a stamped approval of extension is hereto attached as ANNEX J and “J-1”, respectively; photocopy of MOEP No. DENR-MGB-13-2016-226 dated 07 Jun 2016, with stamped approval of extension is hereto attached as ANNEX K and “K-1”, respectively. 13 The report is based on article entitled “Suspended Pichay firm allowed to sell nickel to China; suit vs gov’t. eyed” published on 29 September in INQUIRER.net accesed on 09 Nov. 2016 at www.newsinfo.net , printed copy of which is hereto attached as ANNEX “L” and made integral part of this Complaint.
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suggestion unacceptable or inappropriate, some members reacted with disapproval including Rep. Abu who prominently figured to insist in proceeding with the voting of Rep. Garcia’s pending motion. The respondent, however, tried to impress upon the Committee that he has not completed articulating his proposition by saying: “I still have the floor. . . I was recognized!” 17. The Committee Chairman took the floor and started making a statement, but the respondent did not bother to pay the respect due to a Presiding officer when he exclaimed to disrupt in rude, intimidating and un-parliamentary manner: “I still have the floor!” Overshadowed perhaps by respondent’s demeanor, the Chairman gave way and allowed him to have the floor. 18. That part in the deliberation stated in the last two preceding paragraphs 13 and 14, went on this way:14 REP. PICHAY THE CHAIRPERSON REP. PICHAY THE CHAIRPERSON REP. PICHAY THE CHAIRPERSON REP. PICHAY
REP. PICHAY REP. ABU REP. PICHAY
Mr. Chairman. Okay, well taken . . . Mr. Chairman. . . . so . . . Mr. Chairman. Hono . . . . You know, Article XVII Amendment or Revision, nakalagay dito, any amendments or revision of the Constitution may be proposed by Congress upon a vote of three-fourths of all its Members. There is no mention of Constituent Assembly. Meron po. Walang nakalagay dito sa Saligang Batas na constituent assembly. So, since this is a copy and paste of the . . . the previous Constitution which was . . . unicameral, I think what we do is, pass a resolution wherein we are going to invite the other . . . the . . . the upper . . . the Upper Chamber, because it mentions Congress. It did not say House of Representatives. So the resolution should be amended ... it should be a resolution inviting the Upper Chamber to join us, as far as direct amendment of the Constitution is concerned. Mr. Chairman. Because and nakalagay po rito . . . Mr. Chairman, there is a pending motion and I think we should decide the motion. I still have the floor. . . Mr. Chairman. I was recognized.
THE CHAIRPERSON
Okay. With due respect to ...
REP. PICHAY
I . . . I still have the floor!
THE CHAIRPERSON
Okey. Proceed, Honorable Pichay.
REP. GONZAGA REP. PICHAY
REP. ABU REP. PICHAY REP. ABU
19. He started to state anew his proposition when Rep. Gonzaga said that it pertains to a “Constituent Assembly”. The remark was brushed aside by the respondent who went on to talk, but this time, he took the occasion to rebuff Rep. Gonzaga’s point by asking, “Saan nakalagay ang Constituent Assembly ‘dyan?”. The latter quickly asked the Chairman to be recognized in order for him to respond, but then again and in utter disrespect and in an un-parliamentary manner, he
14
See Transcript of the Committee on Constitutional Amendments, 12 October 2016, pp. 6-7, photocopy of the Transcript is hereto attached as ANNEX “M”.
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retorted: “No, you are not allowed!” The sarcastic statement instantly drew laughter from people around. This part in the deliberation went on this way:15 REP. PICHAY REP. GONZAGA REP. PICHAY REP. GONZAGA REP. PICHAY REP. GONZAGA REP. PICHAY
So, the Constitution states that Congress, upon vote of threefourths of all its Members. That is Constituent Assembly. I still have the floor (Laughter) Saan nakalagay ang Constituent Assembly diyan? May I be allowed to . . . No. . . . elaborate, Sir? You are not allowed (Laughter). x x x x
20. It was at this instant when the complainant broke his silence and raised a point of order, for which he was recognized by the Chairman. Due to exasperation, the complainant happened to utter improper language that was promptly withdrawn by sincere act of apology, “Pardon my friends, Mr. (Chairman)”, which the Chairman readily acknowledged and ruled to strike it out from the records. He could have elaborated his point, but the Chairman quickly struck the gavel down to suspend the proceedings.16 21. Shortly after the suspension was declared, the parties remained in their seats. The respondent, however, made some annoying gestures (“nagmumustra” in the vernacular) while occasionally staring at the complainant. His actuations caught the complainant’s attention and created impression to annoy the latter. The complainant tried to ignore it but respondent continued to the point that the former could no longer take it without clarifying personally with the latter. He stood up and walked straight to clarify and thresh it out with the respondent without intention to engage in physical clash or violence . 22. Upon reaching the place where the respondent was seated, the complainant started to ask what was he (respondent) trying to convey with those gestures. However, the respondent suddenly raised his voice and assaulted the complainant with slurring invective, “P. . . . ina mo!” His nasty language was scandalously loud to draw attention to the people inside the room. The complainant retorted and the heated exchange of words ensued. 23. The incident described in the preceding paragraph can be viewed from video footages such as among others the prime time television news program 24-Oras, the verbal tussle of some portions of which are audible and which the footage clearly stated that the respondent was the first one who hurled invectives, as follows17: REP. PICHAY REP. BARBERS REP. PICHAY REP. BARBERS REP. PICHAY REP. BARBERS
REP. PICHAY REP. BARBERS REP. PICHAY
“P. . . . ina mo!” “P. . . . ina mo rin!” “Eh, bakit ka nagagalit?” (inaudible but the complainant tried to recall that he asked the respondent “Ano ang minumustra mo?”) “Anong mustra?” (inaudible but the complainant recalled his reply was to throw back question asking what does he call about his annoying gestures or “mustra”) “O, sige” (Apparently suggesting something that led Rep. Barbers to ask.) “Ano?” “O, ano?” (Signifying a challenge to a fist fight)
15
Transcript, supra, p. 7. See Transcript, supra, p.7. 17 Footage from prime time TV News Program 24-Oras, an abridged copy of which is hereto submitted and labelled as ANNEX “N”, and made part of this Complaint. 16
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REP. BARBERS
(inaudible but complainant recalled his reaction was to point his finger to the respondent and warned not to challenge him to a fist fight inside “Huwag mo akong hamonin!”)
24. It was at this instant when respondent employed physical contact/violence by fiercely thrusting or pushing the complainant.18 Rep. Primicias-Agabas and some people nearby quickly intervened. Thereafter, the complainant went out from the conference/hearing room to allow cooler heads to prevail. 25. What has clearly transpired is that the respondent committed rude, discourteous and unparliamentary conduct during the latter part of the deliberation. He also triggered the heated altercation and resorted to physical contact/violence against the complainant during the suspension of proceedings. His disorderly conduct has been clearly manifested by his persistent acts of arrogance and bullying against Rep. Gonzaga and worse against the Chairman and Presiding officer of the Committee. His arrogance is further underscored by making some annoying gestures (“nagmumustra in the vernacular) while occasionally staring at the complainant. He then displayed the rudeness of his conduct when he first hurled invective on the approaching complainant who simply tried to clarify about his actions or “minumustra”. It was also the respondent who started to signify a challenge to a fist fight in the course of their altercation, prompting the complainant to warn him “Huwag mo akong hamunin!” And, there, the respondent resorted to physical contact/violence by fiercely thrusting the complainant. 26. The unfortunate incident was precipitated by exasperation and impulses, but the complainant (and perhaps even the respondent) remains true to relentlessly advocate and pursue for the lingering clamor of the people to Change. The complainant leaves this matter to the fair and just evaluation by the members of the Committee on Ethics and Privileges, and if proper, to the sound judgment of all members of this House. What is important is not what a representative of the people has done in the course of pursuing his advocacy, but it is the sincere effort to effect and champion his advocacy. This is certainly the case insofar as the complainant is concerned. This may also be the case for the respondent. But it is not tolerable for a representative to pursue his conflicting personal financial interest with the government while discharging his public duties. The respondent clearly falls in this category and, in the eyes of the public; he does not creditably reflect the good name and reputation of this august Chamber. PRAYER WHEREFORE, premises considered, it is respectfully prayed that the House of Representatives' Committee on Ethics and Privileges FIND respondent Rep. Prospero A. Pichay, Jr. to have committed serious violation of Rule XIX Sec. 139 paragraphs a, f and g of
18
See footage, supra.
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