Senadora Miriam Defensor Santiago - the Official Site

2009-06-10T11:37:00.004+08:00

One-fifths of Senate bills filed by Miriam

Senator Miriam Defensor Santiago filed the most number of bills in the Senate with 704 and co-authored 25 others.

The senator’s bills almost comprise one-fifths of the 3,868 bills filed by all senators for the Fourteenth Congress. She also topped the list for most number of resolutions filed with 277.

Santiago, despite her chronic fatigue syndrome, consistently led her fellow senators in submitting the most number of legislative measures since her election in 2004. Her medical condition prompted the senator to file for an indefinite sick leave last year and early this year.

Notable among her bills is the Anti-Billboard Bill passed by the Senate but ignored by the House of Representatives in the last congress, reportedly because of the influence of a moneyed billboard lobby.

The measure, which places a strict ban on the billboards that fail to comply with certain size and location requirements, recently passed the committee level as Committee Report No. 85 and is now waiting to be sponsored on the Senate floor.

Santiago’s Anti-Video Voyeurism Bill passed second reading before the Senate’s sine die adjournment in the wake of the recent Senate investigation on the proliferation of the sex videos involving Dr. Hayden Kho and various women. The bill aims to protect the privacy and dignity of every person by criminalizing photo and video voyeurism.

Senate Bill No. 1757, or the Clear Sidewalks Act of 2009, sponsored by Santiago and co-authored with Sen. Benigno Aquino III, passed third reading before the adjournment.

The bill prohibits the use of streets, sidewalks, avenues, alleys, bridges, parks, and other public places for commercial or personal use, and requires citizens to apply for the temporary use of sidewalks for special community-wide occasions and other civic or charitable purpose.

2009-05-28T11:36:00.002+08:00

An Act Regulating the Use of Sidewalks for Commercial Purposes

"Clear Sidewalks Act of 2009."

By Senator Miriam Defensor Santiago

(Sponsorship Speech on 27 May 2009)

Mr. President, distinguished colleagues:

“A good city is one with great sidewalks.” This is how Mr. Enrique Peñalosa, former Mayor of Bogota, Colombia, differentiates an advanced city from a backward one. Mr. Peñalosa was credited for turning a deteriorated downtown avenue into a dynamic pedestrian public space. He is now the senior international advisor to the Institute for Transportation and Development Policy of New York. He adds that “In a good city, you must be able to walk to buy milk or bread. If you have to get into a car to buy milk or bread it means the city is not well-designed.”

In our country, sidewalks are occupied by vendors and used as illegal transport terminals. Sidewalks are also blocked by illegal structures such as basketball courts, extensions of business establishments, and of all things, barangay halls. Hence, pedestrians resort to walking on the road. This results to traffic congestions, and worse, accidents.

The Supreme Court has declared in several cases including the 1992 case of Dacanay v. Mayor Asistio Jr. (208 SCRA 404), that:

A public street is property for public use hence outside the commerce of man. The right of the public to use the city streets may not be bargained away through contract. The interests of a few should not prevail over the good of the greater number in the community whose health, peace, safety, good order and general welfare, the city officials are under legal obligation to protect.

Main Features of the Bill

The objective of S.B. No. 1757 or the “Clear Sidewalks Act of 2009”, is to ensure that sidewalks are free from unauthorized commercial or personal use to facilitate the smooth passage of persons and to clear obstructions to vehicular flow.

It defines prohibited acts and sets 2 exceptions along with the procedure for applying for these exceptions. It sets a penalty of either a fine of P1,000.00 or imprisonment for not more than 30 days or both for a violation of its provisions.

Obligations Under the Bill

A. On the part of the government

The municipal or city government is responsible for the implementation of the provisions of this bill. They shall formulate implementing rules and regulations within 30 days from the approval of this bill. Today, it is known that in some local governments, especially in the urban areas, the use of sidewalks for commercial purposes has the inherent blessings of municipal/city or barangay officials. Some collect vendors’ fees, others designate the sidewalk areas as leasable areas for parking and selling of merchandise. The fees are either shared by the municipal or city government or it entirely goes to the barangay where the sidewalk areas are located.

The effectiveness of implementation would therefore hinge on the local governments’ political will and the consequent sanctions they stand to receive for their failure to implement the law.

B. On the part of the citizens

The bill prohibits the use of streets, sidewalks, avenues, alleys, bridges, parks and other public places for commercial or personal use. The bill requires citizens to apply for the temporary use of sidewalks for either community wide special occasions or sales promotion days or civic or charitable purposes.

Benefits of the Bill to the Country

Walkable streets and pedestrian cities is the core concept of livable communities. By clearing our sidewalks, we not only reduce traffic congestion and accidents, we also save ourselves from inflating transportation costs since walking is still the cheapest form of going from one point to another. People can also enjoy healthier lives as they get a regular dose of exercise.

For these reasons, I humbly recommend that this Senate should approve Senate Bill No. 1757.

2009-05-26T11:23:00.000+08:00

MIRIAM CONDEMNS NORTH KOREA NUCLEAR TESTING

Senator Miriam Defensor Santiago, chair of the Senate committee on foreign relations, joined world leaders in condemning the nuclear weapons test conducted by North Korea earlier today, 25 May 2009.

North Korea’s official Korean Central News Agency earlier reported that North Korea “successfully conducted one more underground nuclear test on May 25 as part of the measures to bolster up its nuclear deterrent for self-defense in every way as requested by its scientists and technicians.”

The nuclear test was reportedly “safely conducted on a new higher level in terms of its explosive power and technology of its control.”

Santiago said the nuclear testing was a breach of United Nations (UN) Security Council Resolution 1718, which prohibited North Korea from conducting nuclear tests.

The senator urged Malacañang to support Japan’s call for an emergency meeting of the UN Security Council in the wake of the nuclear weapons test conducted by North Korea.

Meanwhile, Asia-Pacific stock markets dipped today, spooked by the nuclear testing.

South Korean and Japanese stocks dropped after North Korea said it had conducted a nuclear test. New Zealand shares fell in sympathy with the Asian markets.

Santiago said the government should calm the Philippine stock market to prevent it from being jittery just like other Asian markets.

“There is no cause for panic. North Korea cannot immediately produce a nuclear weapon at this early stage of the testing,” Santiago said. “It will take years before North Korea can weaponize its nuclear capability.”

2009-05-25T15:29:00.001+08:00

MIRIAM: PROSECUTE HAYDEN KHO FOR ‘PSYCHOLOGICAL VIOLENCE’

Senator Miriam Defensor Santiago today said that Dr. Hayden Kho can be prosecuted under Republic Act No. 9262, or the Anti-Violence Against Women and Their Children Act (VAWC), for committing “psychological violence” against actress Katrina Halili.

Halili accused Kho of videotaping their sexual encounters without her knowledge and consent. The videos have since surfaced in the internet and copies in DVD format are being peddled in the streets.

Under the VAWC, “psychological violence” refers to acts or omissions causing or likely to cause the mental or emotional suffering of the victim, such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse, and mental infidelity.

Santiago said that under the law, a person who has or had a sexual or dating relationship with a woman is guilty of committing psychological violence against her through acts causing her mental or emotional anguish, public ridicule, or humiliation.

According to Santiago, if Kho is found guilty by a trial court of committing psychological violence against Halili, he faces from 6 years and 1 day to 12 years imprisonment, and a fine of not less than P100,000 but not more than P300,000. He must also undergo mandatory psychological counseling or psychiatric treatment under the watchful eye of the trial court.

Santiago said Kho cannot escape criminal liability by claiming the defense of insanity. According to media reports, Kho allegedly attempted suicide in the past.

“The Supreme Court has already ruled in countless cases that insanity exists when there is a complete deprivation of intelligence in committing the act,” Santiago explained.

“For the defense of insanity to be persuasive to the court, the accused must be completely deprived of reason or acts without the least discernment, because of a complete absence of the power to discern or total deprivation of the freedom of the will,” she explained.

The sex video that leaked in the internet clearly shows that Kho set up the camera, carefully angled it, and positioned Halili so that their act would be caught on tape.

“The whole episode would require intelligence, care, planning, and subterfuge. That is contrary to the definition of insanity as ‘total deprivation of freedom of the will,’” Santiago said.

“Before the alleged filming of the video, Dr. Kho was somewhat of a minor celebrity who had been frequently interviewed on national television and seen in public events. In none of his public appearances did he conduct himself in a manner that would suggest insanity,” she said.

“The presumption of law is always in favor of sanity. The defense must prove that the accused was insane at the time of the commission of the crime for the accused to be exempted from criminal liability,” Santiago said.

The feisty senator, who is a former trial court judge, also said that even those who sell, give away, or exhibit the sex videos are liable under Article 201 of the Revised Penal Code. They face from 6 years and 1 day to 12 years imprisonment, or a fine ranging from P6,000 to P12,000, or both imprisonment and fine.

Even before this scandal erupted, Santiago already filed a bill to criminalize photo and video voyeurism.

Photo and video voyeurism is the act of capturing an image of the private area of an individual without their consent, and knowingly doing it under circumstances in which the individual has a reasonable expectation of privacy.

Santiago filed Senate Bill No. 1100, or the “Anti-Video Voyeurism Act,” last 4 July 2007. Senator Francis “Chiz” G. Escudero’s Committee on Justice and Human Rights has already conducted public hearings on the bill, and has submitted to the plenary Committee Report No. 65 last 2 June 2008. The legislative measure is still waiting to be calendared in the Senate plenary session.

Santiago, as principal author of the bill, and Escudero, as chair of the committee that conducted public hearings on the bill, are co-sponsors of the measure.

“Under my bill, it is not even necessary that the photo or video shows the aggrieved person engaging in sexual intercourse,” Santiago explained. “As long as a private area of the victim is visible in the photo or video, whoever captured the image without the consent of the victim, or captures the image with his or her consent but broadcasts the image without his or her written permission, is liable under this act.”

The bill defines the “private area of the individual” as the naked or undergarment clad genitals, pubic area, buttocks, or female breast.

“For the victim, it is obviously very embarrassing and degrading to be photographed or videotaped in a compromised situation. It is a form of invasion of personal privacy,” Santiago said.

2009-05-12T10:52:00.002+08:00

MIRIAM WANTS ‘BOOK BLOCKADE’ INVESTIGATED

Known booklover and author Senator Miriam Defensor Santiago today urged the Senate to investigate the alleged “book blockade” being reported in various newspapers and blogs.

Booklovers are up in arms over the book blockade, which is reportedly caused by the imposition by the Bureau of Customs (BOC) of customs duties on imported books.

According to the BOC, Republic Act No. 8047, or the Book Publishing Industry Development Act, only exempts from import taxes and duties “books or raw materials to be used in book publishing.”

The imposition of customs duties on imported books has reportedly caused book importers to reconsider future importations due to higher importation costs. Foreign books have become more expensive, and are in danger of becoming scarce or completely unavailable in local bookstores.

Santiago, chair of the Senate foreign relations committee, said the BOC interpretation of RA 8047 violate the 1950 Florence Agreement on the Importation of Educational, Scientific and Cultural Materials, of which the Philippines is a state party.

“The Florence Agreement provides that the contracting States undertake not to apply customs duties or other charges on, or in connection with, the importation of books, publications, and documents,” Santiago said. “The Philippines is bound by this treaty under the principle of pacta sund servanda. This simply means that every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

Santiago said the government cannot use RA 8047 to evade its obligations under the treaty.

“The Philippines, as a party to the treaty, is not authorized to invoke the provisions of its internal law as justification for its failure to perform the treaty,” she said.

“Moreover, RA 8047 itself provides that the Philippines’ national book policy is to reaffirm and ensure the country’s commitment to the UNESCO principle of free flow of information and other related provisions as embodied in the Florence Agreement and in other similar international agreements,” the senator said.

Santiago also said that the BOC’s interpretation of RA 8047 is erroneous because the exemption from import taxes and duties applies equally to books and raw materials to be used in book publishing.

“The legislative intent of RA 8047 is to adhere to the Florence Agreement and exempt books from import duties,” Santiago said. “The BOC’s interpretation has no legal basis.”

2009-05-11T11:52:00.001+08:00

MIRIAM SEEKS PROBE OF CABINET SENATORIABLES

Sen. Miriam Defensor Santiago is seeking a public investigation of funds used for alleged TV infomercials by certain cabinet members planning to run for the Senate.

“If they are using public funds, they are guilty of malversation. If they are using private funds, they are guilty of premature campaigning,” she said.

Santiago mentioned the case of one cabinet member who appears in a health infomercial, another who appears in a disaster preparedness infomercial, and still another in a tax payment infomercial.

“The Election Code bans and penalizes the election offense of premature campaigning. TV informercials are a pathetic way of seeking to go around the ban,” she said.

Last year, Santiago filed a petition with the Comelec to stop reelectionist senators from appearing as alleged commercial models of certain products advertised on billboards.

Although the senator alleged that some of her colleagues are violating the ban, the Comelec dismissed her petition, prompting her to elevate it to the Supreme Court where it is pending.

“We have to stop this culture of impunity among senators, cabinet members, and other public officials blatantly violating the law. Instead, the public should support a culture of accountability by asking for their disqualification,” she said.

Santiago said that if the present trend continues, all potential candidates for local and national offices will start campaigning by one ruse or another.

“The law imposes a ban, but many are doing what the law prohibits, because of the lackadaisical attitude of the Comelec. With its refusal to comply with the law, the Comelec is in effect cultivating a culture of impunity among politicians who break the law,” she said.

2009-04-22T10:43:00.001+08:00

ON NOGRALES THE RESOLUTION

If the House of Representatives passes the Nograles resolution by mere majority vote, then it will be unconstitutional. We are not allowed to conflate an ordinary bill with a charter change resolution. There is simply no correspondence between the two measures.

If the Nograles resolution is limited to economic provisions, then it is only an amendment, and not a revision. An amendment is limited only to specific provisions. Revision covers the entire Constitution.

But whether amendment or revision, the vote required is three-fourths of all the members of Congress. Any vote less than three-fourths is unconstitutional. For example, to pass a charter change resolution in the same way as an ordinary bill – by mere majority vote – is unconstitutional.

The reason for this is that the power of charter change is NOT part of the legislative power of Congress. Instead, the power of charter change is part of the inherent power of the people, who have spoken through the Constitution.

The power of Congress to pass laws is derived from its legislative power. By contrast, the power of Congress on charter change is derived from the Constitution. This difference was emphasized by the Supreme Court in the 1967 case of Gonzales v. Comelec.

The Constitution provides for charter change under Article 17 entitled “Amendments of Revisions.” The Constitution does not include charter change under Article 6 entitled “Legislative Department.” This is textual proof that a charter change resolution should not be treated like an ordinary bill. It would be like comparing a dilis to a whale.

The Nograles resolution, even if it follows the Rules of Procedure of the House of Representatives, is unconstitutional. By requiring only a majority vote, it contravenes the constitutional provision that charter change should pass by a three-fourths vote.

2009-04-14T10:00:00.002+08:00

Transcript of Sen. Santiago's interview - 13 April 2009

On the VFA

I have called for a hearing on the proposal which seems to be mounting to terminate the VFA. Under its own terms, the VFA can be terminated by either the Philippines or the US for any or no reason, and the termination will be effective after notice to the other party within six months. We don’t need a reason. The real reason is, I believe, that after ten years of operation in our country, the VFA is working more harm than good to the national interest. It is acting as a lightning rod for the enemies of the US , and we are being used as a monitoring station by the US Armed Forces in its so-called ‘war on terror’. According to President Obama there is no more ‘war on terror’ and therefore there is no need for the Americans to stay here.

On the part of the Philippines , what we got was used military equipment—in other words, American junk. I have read the papers this morning and I have discovered that the commitment to give us their used military equipment has been dangled before the Philippine government since the early 1950’s. So every time they want something from the Philippines , they will always offer the same deal. If we let them do something in our territory, they will give us their used military junk. I don’t think that it is consonant with the worldview of the new president, particularly since he has spent his childhood in Indonesia which is one of the closest and most analogous neighboring countries to ours. Therefore I think we should give President Arroyo more resources with which to face up with the US which tends to become arrogant every time it is able to get something out of the Philippines for nothing.

On charter change

In addition, I think the moment the House of Representatives passes the so-called charter change resolution, immediately I, and definitely certain other senators, will rush to the Senate to challenge the House resolution on a petition for certiorari, for example. It is their view that when the Constitution provides that a constituent assembly, composed of members of the Congress sits down to change the Charter, the legislative vote should be three-fourths of the votes of the senators sitting down with the House members—and therefore counted as an ordinary House member—that is for me a completely unacceptable view of our Constitution.

Under the doctrine of necessary implication, you read into the statute whatever is necessary in order to effectuate it. Our Constitution provides for a bicameral Congress, and therefore voting should always be bicameral. It can be held at the same time, but the House would vote among itself, and the Senate should vote among itself.

And even if we are outvoted, I believe that the Filipino voters will never approve in a plebiscite any charter change that has been passed only by the vote of the House counting the vote of the Senate together with itself. That will simply not be acceptable to the Filipino public because the Filipino voter is very jealous of his prerogative to cast a vote in favor of his president.

If we change to the parliamentary system, they will not personally vote for their prime minister, but instead surrender their vote for the prime minister and delegate it to the member of parliament of his district. The vote is the only time the voter asserts his authority in a flawed democracy like ours. Even in the case of the stupid corrupt voter, at least it gives him the opportunity to make money out of the politician that is stealing money anyway in the last three or six years. So they will never agree to the proposal to take away this power from themselves. That is the problem.

Of course there are many arguments in favor of a parliamentary system, but basically we have no background in this process because we were colonized by the Americans like other Southeast Asian country. Therefore, I feel that this will turn, like all great political questions, into a great judicial question. The issue is whether the Arroyo appointees will feel bound to vote in a partisan fashion just to support the president who appointed them to office. I don’t think so.

Is PGMA looking for a term extension?

I think she will want more to leave a good name for herself. As you know, she is faltering in the popularity surveys, and for her to be more than proactive in pushing for a shift to a parliamentary system might spell her doom. So she will have to take this in proper perspective. She will not only be fighting for her political life, but also her reputation in history.

Those congressmen are thinking that they can sell their votes to the highest bidder once they turn themselves into parliament. There will be a campaign among themselves on who will be elected prime minister. What will happen is that the ‘prime-ministerables’ will be trying to buy the rest of the members of parliament. How much will each candidate for prime minister will be willing to pay for each member of parliament? Every member of parliament will be for sale whether actually he or she is not. That is how every candidate for prime minister will view their colleague. The money used to be spent to buy the Filipino voter will now be concentrated on some three hundred people. You want to be a gazillionaire? Run for member of parliament.

Is there enough time for charter change?

No, definitely there is no more time left. Unless you run a gravy train. And I just don’t think that the Filipino is in the mood to go along the shenanigans of corrupt politicians. Why do we have to change right now? Why can’t we change it on, like, 2011 or some other period of time? Why do we have to do it right now? Are we sinking into the Pacific Ocean ? Are we gasping for breath? There is no defense on the question of necessity. Why now? Why so urgent?

Are the congressmen looking for a term extension?

A politician is always a hopeless optimist. He is always an apostle of hope. He is always hoping that things will turn out for the best. Even if they will say right now that there will be no term extensions, they are hoping that once the resolution is passed for charter change, things will somehow change and they can still remain in office. Otherwise they will not be members of the House. You have to be inconceivably optimistic to be a member of the House of Representatives.

On the status of the WB hearings

It was clear that there was no evidence as sanctioned by the Rules of Court. I think that those who won’t agree on how I conducted the proceedings are hoping that they can file the same resolution and have it assigned to another committee, otherwise engage in forum-shopping. At that point, I will put my foot down; I’m going to the Supreme Court and say you can’t do this. In the first place, the legislative committee of the Senate is not the NBI or the office of the fiscal. We are not supposed to be conducting preliminary investigations of criminal cases. We are conducting investigations in aid of legislation. And since the WB doesn’t even want to share any information with us, there is no modicum or scintilla of evidence on which to base any adverse statement against the First Gentleman.

Let the Supreme Court rule on whether if a minority of the Senate thinks that it did not get the political partisan results it was hoping for, it can go and refer the same subject matter to another committee so that they can get the result it wants in terms of political mileage. Are we allowed under the Constitution to do this? The Rules of the Senate provides that the Rules of Procedure will not be strictly followed during legislative investigations except when a substantive right of the accused is involved. A substantive right is any right protected and defined under the Constitution, and one of these substantive rights is the right to be presumed innocent.

Another committee can hold another investigation on another aspect, but you have to examine the process. If it simply results in placing the First Gentleman on the dock again, I will resent it as a lawyer.

I will file a committee report as soon as possible. I’ll simply say that there is no evidence pursuant to the Rules of Court, and my basis will be there is a substantive right involved, and under our own rules, we have to apply the strict procedural rules as provided by the Rules of Court.

2009-04-14T09:46:00.002+08:00

SENATE POISED TO SCRAP VFA

Sen. Miriam Defensor Santiago, chair of the legislative oversight committee on the RP-US Visiting Forces Agreement (Lovfa), set for hearing next week a proposed Senate resolution calling for the unilateral termination of the VFA.

“The VFA is now ten years old. Under President Estrada, it was an outright deal. The RP got used military equipment, and the US had the right to snoop around Mindanao , as part of the war on terror of President Bush. We got the equipment, and they snooped for ten years. End of the deal,” she said.

Santiago said that the 1999 Senate Resolution 18 categorically stressed that the Philippine Constitution prohibits the permanent stationing of foreign troops on Philippine soil, and it is the Senate duty to prevent the VFA from turning into a permanent arrangement.

“Resolution 18 specified that the VFA envisioned only temporary visits of US personnel engaged in joint military exercises or other activities approved by the RP government. Beyond 10 years, the VFA will become a permanent visit,” she said.

Santiago said that recently the US defense department sent an email declaring that the phrase “war on terror” would now be replaced by the phrase “overseas contingency operation.”

“The Obama administration has stopped using the phrase ‘war on terror,’ which is the explanation for the presence of US soldiers in Mindanao . Since there is no more war on terror, then there is no more rationale for US troops to be stationed in Mindanao ,” she said.

Santiago quoted the VFA as stating that the Philippine government reserves the right to terminate unilaterally the VFA, once it no longer redounds to Philippine national interest.

“My main objection to the VFA at this time is that it continues to foster an attitude of dependency on our part, and an attitude of arrogance on the part of the US ,” she said.

Santiago said that she has several reservations on the February 2009 Supreme Court decision in Nicolas v. Romulo, which affirmed the prior decision in Bayan v. Executive Secretary, upholding the validity of the VFA.

“The authoritative force of the Nicolas case is weak, because it was promulgated by a divided court. Four justices dissented, while two justices did not take part,” she said.

Santiago said that the Supreme Court majority failed to duly consider the constitutional provision that the VFA should be “recognized as a treaty by the other contracting state.”

“Under the US Case–Zablocki Act, the VFA was submitted to the US Congress, because it is not characterized as a treaty. Under American law, any international agreement which is not a treaty has to be submitted to the Congress after it has entered into force with respect to the US . The US government does not recognize the VFA as a treaty, and therefore there is no compliance with the RP Constitution,” she said.

Santiago said that under the US Constitution, a treaty is an agreement of the US President made “by and with the advice and consent of the Senate.”

“In the US , since the VFA is not a treaty, it is not self-executing. It cannot be considered enforceable without an enabling law and it would not be recognized by US courts,” she said.

Santiago said that the majority rule was wrong in citing the 2008 US Supreme Court decision in Medellin v. Texas.

“Medellin dealt with agreements that are considered as treaties. The VFA, under US law, is merely an executive agreement,” she said.

Santiago scheduled the Lovfa hearing on Thursday, April 23, at 10:00 a.m.

2009-04-14T09:43:00.000+08:00

SENATE GIRDS FOR CHACHA SHOWDOWN

Sen. Miriam Defensor Santiago, a leading constitutional law expert, said that when the House of Representatives passes a resolution for charter change, immediately the Senate will file a petition in the Supreme Court to compel a separate Senate vote on the resolution.

“The Constitution requires a vote of three-fourths of all the members of Congress. The two chambers should vote at the same time, but should vote separately. This is the doctrine of necessary implication, because Congress is a bicameral body,” she said.

Santiago said that in Asia, the Philippines is one of several countries that follow the US presidential system, including Indonesia, South Korea, and Taiwan; but only Japan follows the parliamentary system.

She said that if a constituent assembly votes to change over to a parliamentary system, the voter would refuse to ratify it in a plebiscite.

“The Filipino is jealous of his personal vote in a presidential election. He will not surrender it to members of parliament, who would have the sole power to elect the prime minister,” she said.

Santiago said that the present presidential system guarantees that most important decisions are made by a broad majority, unlike a parliamentary system where a minority group could impose its will on the nation.

“The only thing you can say in favor of a parliamentary system is that you can avoid a deadlock between the President and Congress. A parliamentary system avoids legislative paralysis, but the downside is dominance by the administration party,” she said.

“In any event, the time left is too short. Once the case reaches the Supreme Court, we would all have to wait. At this time, charter change is not a political but a judicial question,” she said.

2009-02-18T12:25:00.002+08:00

Sen. Miriam Defensor Santiago's Press Statements

On Tuesday’s Senate majority caucus

I just came from the caucus of the majority in the conference room of the Senate President. I have been assigned to make a statement to the media for the entire majority caucus. First, pursuant to my recommendation, the Senate economic affairs committee, of which I am chair, will no longer issue a subpoena to the country director of the World Bank. Instead, as he himself has suggested, we shall invite him through the secretary of finance to an informal technical briefing, to be attended not only by the members of the three committees handling the World Bank issue, but by all the senators, if that is the wish of our colleagues. Since he has requested for an informal setting, we presume that he means not the formal setting of a public hearing. Perhaps, he prefers an informal conference where he would explain to us the nature of the World Bank documents.

Second, pursuant also to my recommendation, the caucus of the majority today decided that we will not hold another public hearing, but merely an informal technical briefing. Finally, with respect to the rules of evidence, we shall apply the Senate Rules of Procedure, particularly the Rules Governing Inquiries in Aid of Legislation. The Rules state in effect that as much as possible, technicalities shall be waived, except when substantive rights of an accused person are involved. The substantive rights of an accused person are those enumerated in our Constitution. The Senate will strictly follow the rules of evidence with respect to the substantive rights of an accused – for example, the presumption of innocence of an accused person, his right against self-incrimination, and his right to confront the witnesses against him.

If this is the case, my committee will be happy to limit itself to economic affairs, because, after all, that is the eponymous name of my committee. The committee is named economic affairs. After that, if there is a senator who wishes to pursue the criminal angle or the accountability of a public official or a public figure, then that senator should file a resolution and the Senate President will assign it to the proper committee, perhaps to the blue ribbon committee. In the meantime, the economic affairs committee and the two secondary committees will first finish this particular investigation on the economic angle of the World Bank case.

Were the results of the majority caucus a win-win situation?

Yes. If you remember, I filed an application for indefinite sick leave, because right now I am in very poor medical condition. I have, as one of the symptoms of my chronic fatigue syndrome, arrhythmia, which is irregular heartbeat, that and I am palpitating right now. That is why I am breathing like I just ran up several flights of stairs. Actually, I did not even want to hold committee hearings. But since the matter of the World Bank fell on my lap as chair of the proper committee, I did not want to be absent because that would have triggered a string of media stories and speculation about why I was absent and that I was just trying to avoid the controversy. That is why I am very happy about the result of the caucus. I was the one who suggested that I should finish the investigation of my committee, and thereafter, anyone can file a resolution if he feels that the economic affairs committee has sufficiently exhausted only the economic aspect of the issue and he wants to pursue the criminal aspect which would fall into the jurisdiction of another committee.

On the confidentiality of the World Bank documents

According to the procedure of the World Bank, we do not communicate directly with them. But they communicate only with whom they call the “accountable officers” of the government, the finance secretary, who is also a governor of the World Bank, and the ombudsman. So I will immediately write a letter to Finance Secretary Gary Teves and request him to arrange an informal technical meeting with the World Bank country director and the Senate as soon as possible.

In his letter to me yesterday, it appears that the World Bank country director, after hearing from the legal department in Washington DC, has made slight adjustments in their strict rules of confidentiality and immunity. The rule of confidentiality in the World Bank is that none of the documents could ever be used for any purpose and cannot even be distributed or cited in any document of our government. In other words, you cannot use the documents for any purpose whatsoever. In his letter to me yesterday, the country director at least gave an inch to the Senate by saying that since they have already given the reports to the two accountable officers of the Philippines, then they give the discretion to the two as to whether to share those reports with the Senate or with any other sector of our society.

I have the referral report, the notice of sanctions proceedings – which is actually an enumeration of all the witnesses and documents that came into the hands of the World Bank investigators, and the decision. The difference in viewpoint taken by the Senate and the World Bank is owing to the difference in our functions and objectives. The objective of the World Bank is simply to find out if there is some evidence if collusion has taken place, because their main objective is to prevent corruption in the bidding of World Bank-funded projects. In the case of the Senate, we are conducting an inquiry in aid of legislation. We have to find out what things are covered by the jurisdiction of the World Bank. That is why they initially do not want to release the documents because they might be misused or the World Bank might be manipulated into a certain position, which it is not taking at all, with respect to domestic politics.

2009-02-17T11:47:00.000+08:00

Sen. Miriam Defensor Santiago's Press Statements

World Bank Scandal

Political society and media are divided into pro-Gloria and anti-Gloria camps. I am an administration ally. This does not necessarily mean that I would place my judicial reputation at stake in order to unreasonably defend her husband.

I am now attacked by the anti-Gloria forces and their PR firms, simply because I am trying to enforce the Rules of Evidence. Gee, I must be effective. The Tagalog saying is: “People throw stones only at trees which bear fruits.”

My attitude is that, I am only collateral damage. I am amused by the sudden emergence of experts who are not even lawyers, all expressing opinions on the Rules of Evidence. They are like butchers inside the operating room, advising the surgeon on how to conduct brain surgery. My response to critics is: “Too many cooks spoil the broth.”

Committee Hearing on Smith Detention

This will be conducted on Thursday, February 17, by the Committee on Foreign Relations, which I chair. The committee will consult experts consisting of international law experts from the academe, and other fields. We have requested them to advice the committee on the steps that could be taken by the Philippine government to implement the Supreme Court decision that RP-US should immediately negotiate the transfer of Smith from the US embassy premises to Philippine jail premises.

2009-02-11T13:27:00.003+08:00

WASHINGTON TO DECIDE WB REPORT RELEASE

World Bank Country Director Bert Hofman said that he has forwarded to the World Bank main office in Washington D.C. the letter from the Senate protesting and requesting reconsideration of his refusal to give a copy of the World Bank documents on the collusion scandal that implicates the First Gentleman and others.

This was contained in the letter dated February 9 sent by Hofman to Sen. Miriam Defensor Santiago, chair of the economic affairs committee, in reply to Santiago ’s letter of 6 February 2009.

“Your letter raises important considerations of national and international law with respect to availability of information in the context of the World Bank recent debarment of international and domestic firms on grounds of collusion,” Hofman said.

Hofman said he forwarded Santiago ’s letter to the Washington D.C. legal department, apparently to study the points of international law raised by Santiago , who was Philippine nominee to the International Court of Justice.

In his latest letter, Hofman promised Santiago that he will provide the Senate with a copy of the Redacted Report, which is being finalized by the World Bank Integrity Vice-Presidency, and will then be reviewed by the Philippine government.

The reviewing officer will apparently be executive director to the Philippines Jorge Humberto Botero.

Santiago told media that there are apparently four WB documents: Referral Report November 2007; Notice of sanctions proceedings May 2008; Decision of Sanctions Board 12 January 2009; and Redacted (Edited) Report, to be posted in the WB website.

“I strongly suggest that any person commenting on the World Bank scandal should specify which of these four WB documents he is referring to. This would avoid confusion in the public mind,” Santiago said.

In her prior letter to Hofman, Santiago cited the following points of international law to support the Senate request for a copy of the World Bank documents:

International law is evolving away from the concept of absolute immunity.

There is no Headquarters Agreement between the World Bank and the Philippine Government.

In the landmark case of Liang vs. People, 355 SCRA 125 (2001), the Philippine Supreme Court ruled that international organizations, but not its officials, enjoy absolute immunity.

2009-02-10T13:21:00.004+08:00

SENATE WILL ADMIT ELECTRONIC PROOF

Sen. Miriam Defensor Santiago, chair of the economic affairs committee, said that she will apply the rules on electronic evidence, which are exempt from the hearsay rule, at the hearing scheduled for this Thursday, 12 February, on the World Bank scandal blacklisting three Filipino contracting firms.

Santiago said that under the law, an electronic document refers to information by which a fact may be proved, which is transmitted electronically, including digitally sent documents and any printout or output.

She said that electronic evidence also includes audio and video evidence, but in all cases the evidence has to be authenticated by the person who made the recording, or by some other person competent to testify on its accuracy.

“Under the Rules of Court, an electronic document, including a computer printout, is admissible in evidence, if it complies with the rules on admissibility, and is authenticated,” she said.

Santiago said she will admit even online documents purporting to be part of World Bank records, provided that they are authenticated by digital signature, by Supreme Court-authorized security procedures, or by other evidence showing their integrity and reliability.

“Since the World Bank has refused to give me a complete set of its documents on the blacklisting, I am obliged to apply the rules on electronic evidence since they are considered as the functional equivalent of paper-based documents, unless a privileged communication is involved,” she said.

Santiago said that under the law, the hearsay rule does not apply to electronic evidence, provided that they are authenticated by the custodian or other qualified witness.

“The law presumes that electronic evidence is admissible, but the presumption may be overcome by evidence of the untrustworthiness of the source of information or the method of its transmission by computer,” she said.

The senator also said that the admissibility and evidentiary weight of an electronic document should be established by an affidavit stating facts of direct personal knowledge of the reporter, or based on authentic records.

The economic affairs committee has invited to the hearing Ariel Rufo, reporter of ABS-CBN.news/newsbreak, who wrote the internet report that a World Bank document implicates the First Gentleman and other former public officials in the crime of collusion.

Santiago also said that if the First Gentleman prefers to submit evidence by means of deposition, he can choose whether the deposition should be made from oral or written questions.

“If the First Gentleman proves that there is just cause for him to be excused from making personal appearance at the hearing, I will grant a motion to depose him. I will direct the Senate TV crew to preserve the process on video evidence. Thus, the video could be authenticated by the Senate cameraman,” Santiago said.

Santiago , was absent from the Senate yesterday because of chronic fatigue, which she said rendered her short of breath.

“While the chronic fatigue continues, I am advised to limit my exertions. I was busy in the morning giving phone interviews to the media. After lunch, I no longer had enough energy left to withstand the two-hour trip to and from the Senate,” she said.

2009-02-06T16:56:00.003+08:00

MIRIAM SLAMS WORLD BANK, RESUMES PROBE

Sen. Miriam Defensor Santiago, chair of the economic affairs committee, called for a formal protest by the foreign affairs department, over the World Bank refusal to give the Senate a copy of its Referral Report on three blacklisted Filipino construction firms.

“I was being polite, and dutifully observed protocol by first requesting for waiver of WB confidentiality. All I got for my pains was a summary refusal. This is a gross manifestation of the antediluvian mentality that all developing states are beggars to be ignored at whim,” she said.

Santiago said that yesterday (February 6) she received a letter from WB Country Director Bert Hofman, stating that “the confidentiality of the so-called Referral Report, which was shared with the relevant authorities in the Philippines , should be respected and therefore the report cannot be shared with the Senate.”

“In effect, the WB is saying that the finance secretary and the Ombudsman are relevant authorities, but not the Senate. I educate those hoity-toity WB lawyers that in the Philippines , a public hearing is a constitutionally protected power of the Senate,” she said.

Santiago said that since the WB is on Philippine territory, it is governed by our Constitution.

“Under international law, WB has to take our legal system as it finds it. If not, we can evict them,” she said.

Santiago said that under international comity or courtesy, the WB legal department should at least have explained to her the legal basis for the refusal, instead of brushing away her request with just one sentence.

Santiago said that by comparison, even the UN Secretary General has the duty to waive immunity under the 1946 Convention on the Privileges and Immunities of the UN.

“Even the UN Secretary General has the duty, repeat, the duty, to waive immunity, when he believes that immunity would impede the cause of justice, and can be waived without prejudice to the interest of the UN,” she said.

Santiago said that out of courtesy to the Senate, Hofman should at least have directed the legal department to submit a legal memorandum to the Senate.

“Mr. Hofman is impeding a Senate inquiry in aid of legislation. It is insensitive for the WB to fail to explain why giving the Senate a copy of the Referral Report would prejudice the WB,” she said.

Santiago , who is also chair of the Senate foreign relations committee, said that the WB does not have a Headquarters Agreement with the Philippines .

“No Headquarters Agreement, no immunity, no confidentiality. The provisions of the 1947 Convention on the Privileges and Immunities of the Specialized Agencies are obsolescent at best and obsolete at worse,” she said.

In her reply sent yesterday, February 6, immediately after receiving Hofman’s letter, Santiago virtually lectured the country director, pointing out that under international law, the immunity principle has evolved from an absolute rule to a relative rule. (See enclosed Santiago letter).

“In the final analysis, it is the Philippine Supreme Court which has power to decide whether there are compelling reasons to rebut the presumption of confidentiality made by the World Bank. It is only a presumption, and this is the right time to test this in a Philippine court. It is arrogance like this which gives rise to the spreading call of the international community to revamp the UN system because it is skewed in favor of rich states. They may be richer, but there are more poorer states,” she said.

Santiago also set the resumption of the hearing on the World Bank scandal for Thursday, 12 February.

The economic affairs committee has sent out invitations to certain Filipino public figures mentioned in news report alleging that they were implicated in World Bank documents, namely: First Gentleman Mike Arroyo, former Rep. Prospero Pichay, former Rep. Jerome Paras, former DPWH Sec. Florante Soriquez, DPWH Boy Belleza, Project Director Lope Adriano, and DPWH Asst. Director Tito Miranda.

The Committee also issued subpoena duces tecum (order to bring the WB Referral Report) to: Finance Secretary Margarito Teves and Ombudsman Merceditas Gutierrez.

2009-02-05T13:46:00.001+08:00

MIRIAM SEEKS WB PROBE PAPERS

Sen. Miriam Defensor Santiago, chair of the economic affairs committee, wrote a letter “respectfully requesting” World Bank country director Bert Hofman to give to her committee the documents issued during the probe that led to the blacklisting of three Filipino firms.

Santiago was responding to an online news item alleging that a Japanese contractor, who has since left the country, allegedly linked First Gentleman Miguel Arroyo to the alleged collusion among the three firms.

“The internet news item is hearsay and therefore has no probative value,” said Santiago , a former RTC judge.

Santiago said that she has a copy of the World Bank final report, and that it does not mention the alleged testimony against the First Gentleman.

“In my letter to World Bank Director Hofman, I acknowledged that no Philippine government agency can subpoena the officials or the documents of the Bank. So I appealed to him, in the interest of Philippine public service and our anticorruption campaign, to voluntarily release the documents to the committee,” Santiago said.

The senator said that as much as possible, congressional hearings should abide by the Rules of Court.

“The Rules of Court prohibiting hearsay are mandatory in judicial courts. If a Senate committee endorses to the Ombudsman or to the prosecutors a criminal case based only on hearsay evidence, it will be thrown out,” she said.

Santiago said that under the hearsay rule, a witness can testify only to what he has perceived by his own senses.

“If the World Bank gives me the documents that incriminate the First Gentleman or any other public official, I will immediately set a hearing and invite them. If they don’t appear, I’ll take it a step farther and subpoena them,” she said.

2009-02-04T10:37:00.002+08:00

MIRIAM: HOUSE BASELINES BILL “FATALLY FLAWED”

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, said that the House version of the baselines bill is “fatally flawed” and “a potential diplomatic disaster.”

Santiago criticized the House version which includes the Spratlys and Scarborough Shoal inside the Philippine archipelagic baselines, “because it violates the UN Convention on the Law of the Sea (Unclos).”

By contrast, the Senate version which Santiago sponsored claims the two, but places both, under the “regime of islands” principle, which is allowed by the Unclos.

Under Unclos, an archipelago is allowed to draw straight baselines from the outermost points of the outermost islands, provided that the baselines adhere to the natural configuration of the archipelago.

Santiago also said that it is “futile” to include the Spratlys inside the archipelagic baseline, because many of the Spratly islands are already occupied by several Southeast Asian countries and China .

“It defies reality when a state claims sovereignty over islands which are in the physical possession of other states,” she said.

Santiago , who is suffering from Chronic Fatigue Syndrome, declined to head the Senate panel to the bicameral conference committee, and instead endorsed Senate President Juan Ponce Enrile to head the panel.

“Since the House panel will be headed by no less than the Speaker, it is only appropriate that the Senate panel should be headed by the Senate President,” she said.

Santiago said that she had the “fullest confidence in the analytical judgments” of both Speaker Nograles and Senate President Enrile.

“It is really a very simple choice. We have to scale down without surrendering our territorial claims. The unacceptable choice is to claim as much territory as we want, alienate the rest of the international community, and operate as a pariah in international law,” she said.

2009-02-03T11:16:00.004+08:00

MIRIAM ASKS NBI TO PROBE WORLD BANK DEALS

Sen. Miriam Defensor Santiago, chair of the economic affairs committee, requested justice secretary Raul Gonzalez to direct the National Bureau of Investigation to conduct a “confidential investigation” to help identify the politicians and other officials mentioned in the World Bank report as facilitators of collusion in rigged biddings.

“The NBI should activate its assets and confidential informants to find out who in the public works department is helping private contractors to corner public biddings of World Bank-funded projects,” Santiago said.

Santiago said her committee needs documentary and testimonial evidence of collusion, before it can recommend prosecution to the Ombudsman.

“The World Bank report, coming from a respected world agency, should be taken at face value. Under our Rules of Court, we have to presume that it has performed its official duty in the regular manner,” Santiago said.

Santiago disagreed with certain representatives that the contractors blacklisted by the World Bank should be exonerated.

“If there is any evidence on either side, then the presumption of innocence has been overturned by the World Bank report. We have no access to the Bank’s documents, but we have to take their report at face value,” she said.

Santiago said that the Senate, on its own, is not authorized to conduct field investigations because that is a function given to the NBI.

“Because the NBI belongs to the executive branch, I cannot order it to investigate. I have to make a request through the justice secretary who has control and supervision over the NBI,” she said.

Santiago said that she gave a copy of her letter to Gonzalez to NBI Director Nestor Mantaring.

2009-01-27T15:40:00.003+08:00

THE CONTRACTORS

Privilege Speech on 26 January 2009)

Mr. President:

According to Black’s Law Dictionary, a contractor is: “one who contracts for the completion of an entire project, including purchasing all materials, hiring and paying subcontractors, and coordinating all the work.” That is according to the dictionary. But to many Filipinos, a contractor is simply defined as a crook, who engages in gross overpricing of materials, pays salaries to ghost employees, produces shoddy public works that endanger the public, and gladly hands out massive, clandestine, unreported campaign contributions in cash to candidates, in order to cover up his tracks.

The Senate is poised to conduct an inquiry, in aid of legislation, on whether three Filipino contractors “debarred” or blacklisted by the World Bank, may have bribed certain public officials, and otherwise engaged in criminal conduct, such as collusion in bidding for projects. But the House of Representatives has beaten the Senate to the draw, although their public hearing produced not an investigation, but a comic opera.

Some honorable representatives reportedly joined in singing a hallelujah chorus to the almighty contractors, from whom all good things come. The honorable investigators reportedly morphed into opera singers by sending up embarrassing paeans of praise for the contractors under fire. Thus, once more, the political power of big-time contractors proved itself to be awesome.

We are not talking of penny ante contractors. We are talking of giants in the construction industry: E.C. de Luna Construction, Cavite Ideal Construction, and CM Pancho Construction. Here are some of their multimillion public works projects over the years. First, E.C. de Luna Construction:

Tagaytay-Palico Road – P104.20 M

Road concreting Palawan – P322.20 M

Tagaytay City Flyover – P292.94 M

Road construction Misamis Occidental and Zamboanga del Norte – P254.83 M

Road improvement San Jose, Patnongon – P126.68 M

Overlay Asluman Road, Iloilo and Antique – P 997.57 M

Iloilo East Coast – Capiz Road – P 530.59 M

Second, Cavite Ideal Construction:

Naga-Toledo Road – P 805.6 M

Sablayan Road, Occidental Mindoro – P 889.3 M

Tacloban Road, Leyte – P 964 M

C-5 flyover, Metro Manila – P 765 M

Putlan bridge, Nueva Ecija – P 205.6 M

Lotus Central Mall, Imus, Cavite – P 425 M

Rehab project Echague, Isabela – P 587.9 M

Civil works for Sta. Maria bridge, Ilocos Sur – P 97.6 M

Civil works Baybay Bato, Leyte, Cebu – P 856.2 M

Civil works Reina Mercedes, Isabela – P 562.5 M

Macalelon Road, Quezon – P 654.7 M

Aritao Road, Baguio – P 1,422.4 M

SLEX Service Road, Metro Manila – P 524.4 M

Arterial road, South Leyte – P 829.7 M

Third, CM Pancho Construction. I have a list of their projects, but without the cost.

However, the point common to all these three contractors is that they are masters of their universe, and they could be grand players in politics.

In blacklisting these three contractors, the World Bank Group Sanctions Board said, in its decision dated 12 January 2009:

3. The Notice relies on circumstantial and testimonial evidence of collusion in order to establish that the Respondents engaged in corrupt practices and collusive and other fraudulent practices in connection with the World Bank-financed project. The circumstantial evidence consists of alleged indicia of collusion, including high bid prices, symmetrical relationships among bids, bids containing significant errors, “clusters” of bids, “strange and unnatural” bid prices, submission of fraudulent bid securities, and inconsistent application of criteria within the prequalification process. The testimonial evidence is in the form of statements from multiple witnesses, some identified in the Notice, some anonymous, and others whose identity was withheld from the Respondents as confidential materials. . . .

8. In the case of Respondents E.C. de Luna and Eduardo C. de Luna, the Sanctions Board determined that the appropriate sanction would be debarment for an indefinite period. In determining this sanction, the Sanctions Board took into account, inter alia, E.C. de Luna’s position as designated winner in the collusive scheme and also the multiple witness statements identifying E.C. de Luna and Mr. Eduardo C. de Luna as ringleaders in this scheme. The Sanctions Board considered as a further aggravating factor that these Respondents had engaged in multiple instances of misconduct, concluding that this conduct was sufficiently egregious as to warrant the most severe sanction.

I wish I were a contractor, instead of a lawyer. Instead of having to be honest, competent, and hardworking, I can grow fabulously rich, and maybe reduce certain legislators to jelly. Instead of reading myself blind, I could just bribe public works and local government officials. Instead of going to boring church every Sunday, darn it, I can just build an entire church and thus secure the redemption of my immortal soul. Instead of serving as a moving target for paid character assassins and expensive PR firms whose only expertise in journalism is bribery of media practitioners who inhabit their pockets, I would be canonized by media.

If I were a contractor, I would just buy off unpleasantness, such as adverse publicity or a congressional investigation. How convenient in a country whose many things are for sale, including men’s souls.

But I digress. After the Senate reorganization, I did not apply, nor did I particularly want, but was nevertheless appointed, as economic affairs chair. When I started on my duties and examined the records, I found that four resolutions on the World Bank scandal were filed, and all were referred to my committee. The three separate resolutions filed by Sen. Roxas, Sen. Legarda, and Sen. Revilla were all referred on 21 November 2007. The fourth resolution by Sen. Lacson was referred on 19 January 2009. With all the four resolutions, economic affairs was the primary committee, while both public works and finance were the secondary committees.

After session was resumed this January, I set a public hearing for tomorrow. I ordered invitations to be sent out, and I buckled down and read the background file. However, last Wednesday, 21 January 2009, a fifth resolution by Sen. Roxas was called for first reading, and would have been routinely assigned to economic affairs. But Sen. Pangilinan suddenly filed a motion for reconsideration to transfer the referral to either the public works or blue ribbon committees. Sen. Roxas, who was formerly chair of the economic affairs committee and author of the latest resolution, objected to the motion. I was no longer in session hall.

The next day when the staff reported the incident to me, I was as shocked as if I had suffered multiple stab wounds. The first stab wound came from behind. In my two terms as senator, the approved parliamentary behavior has been to show respect to a committee chair, by consulting her first, before trying to remove a subject from her jurisdiction. It is just elementary courtesy, but it was denied me.

I immediately dashed off a letter to Sen. Zubiri, the majority leader, filing my opposition on the ground of laches. Laches is the doctrine in equity, by which a court denies relief to a complainant who has unreasonably delayed in asserting the claim, when that delay has prejudiced the party against whom relief is sought. In other words, laches is sleeping on your rights.

The referral of the first three resolutions were made to my committee more than a year ago, in November 2007. Why did not Sen. Pangilinan file a timely motion for reconsideration? At that time, he was majority leader and ex officio chair of the rules committee. Why did he wait more than a year until the committee chairmanship had been assigned to me?

Under the Senate Rules, all four committees involved – economic affairs, public works, finance, and blue ribbon – have overlapping legitimate jurisdictions over the subject. However, the Senate President chose to make the referral no less than four times to the economic affairs committee. Thus, there is no problem with the committee. Perhaps, the only problem is . . . me?

The next day I received a second stab wound. The majority leader was quoted as saying that, without consultation, he had decided to make a new referral to the blue ribbon committee. He cited a consensus allegedly reached in caucus that all investigations of government anomalies should be assigned to the blue ribbon committee.

In effect, does this mean that blue ribbon would have a monopoly of all criminal investigations? Then it should also assume the duty of filing the corresponding bill on each and every subject matter, instead of just filing a report with the Ombudsman. And does this mean that even the committee with regulatory jurisdiction over the subject matter has no personality to participate, even only as a secondary committee? Then every committee would be reduced to administrative research.

Where in the Constitution does it authorize the Senate to vest its power to conduct inquiries in aid of legislation in just one out of some 36 committees? Doesn’t this alleged consensus amount to a gag rule with respect to every committee chair? For every senator has his or her own style of presiding. I respectfully remind you that the Constitution authorizes the Senate to conduct inquiries in aid of legislation, but only “in accordance with its duly published Rules of Procedures.” Has this Senate published this alleged rule on exclusivity?

In the Senate Rules defining the jurisdiction of each committee, the Rules uses the term “all matters.” The Rule does not use the term “exclusive” with respect to the jurisdiction of the blue ribbon committee. For this committee, the Rules merely uses the clause “all matters relating to, including investigation.” If the intention was to change the meaning, then the rule should be formally amended in writing, and published. Otherwise, this alleged consensus should be put to a vote in plenary session.

But putting aside this issue of statutory construction, why make this alleged consensus retroactive? The resolutions were first referred to the economic affairs committee over a year ago, in November 2007, when the consensus had not yet been reached.

If the consensus is that only blue ribbon can investigate government anomalies, then the motion should have sought transfer to the blue ribbon committee alone. But the motion sought transfer to the public works committee, or to the blue ribbon committee. So I demand to know: why is it acceptable to assign the subject to either public works or to blue ribbon, but not to economic affairs?

It is obvious that the Senate probe of the World Bank blacklisted contractors will have little legislative value, because it has been overtaken by events. Pres. Arroyo has already ordered the Department of Trade and Industry to investigate the subject. The Ombudsman is already conducting preliminary investigation of the criminal cases, and she is scheduled to release the results in February.

The World Bank itself has already identified the following administrative remedies:

An independent permanent assessment and technical audit that strengthens transparency of the bidding process.

Enhanced processes for procurement, financial management, internal controls, and audit of the road management agencies.

Inclusion of a new and innovative coalition of citizen and road users group, called “Road Watch” in the project management setup.

The only value of a Senate hearing would likely be publicity for reelectionist politicians, and other candidates. There might be some political value in Sen. Lacson’s disclosure, if any, of the public official who allegedly received P70 million in bribes.

Last December, the World Bank issued a policy research working paper entitled “Grand Corruption in Utilities.” The paper states:

Grand corruption . . . includes cases when politicians or high-ranking civil servants manipulate a country’s management or regulation of infrastructure industries to gain exclusive benefits. It can be a “purely” public sector phenomenon or involve both public and private agents. In the first case, state-owned public service providers serve as tools for politicians, who benefit in the form of personal revenues, bolstered positions, or party contributions. In the case of public-private interactions, private sector actors used bribes to influence the form of the market or contractual terms at the cost of consumer welfare. Sometimes these phenomena are described as crony capitalism, in which political networks dominate important private assets, or state capture, in which private firms are able to influence public power to their own benefit. (Emphasis added.)

.

The only salient issue in the probe is: who are the public officials involved in crony capitalism, and in state capture? There is a complication, because under international law, the government cannot subpoena World Bank officials, or subpoena the written report of its Department of Institutional Integrity. However, it appears that the World Bank has furnished copies of its report to the finance secretary and to the Ombudsman, and we can subpoena these local officials. But the Philippine government has no authority to substitute its own disciplinary judgment for that of the World Bank.

If the Senate probe has little legislative value, why bother to insult me by removing it from my committee? Is the influence of the contractors so strong that they can now determine who shall investigate them? Am I disqualified because I happen to be the only former RTC judge in the present Senate? I feel like Julius Caesar, after he was stabbed by Cassius. The hostility is as palpable as the pain.

In this chamber, I am the only recipient of the Magsaysay Award for government service. I have proved that I will fight the crooks in government at any time, at any place. But to ask me to squabble with my own colleagues in the workplace for scraps of power is unacceptable. This bloodsport is extremely distasteful to me. If my fellow senators do not like my style in presiding at public hearings on scandals, that is their problem.

Many of our colleagues in this lawmaking body are non-lawyers. And of the few lawyers, even fewer have spent enough time in trial courts. I was a multi-awarded RTC judge for five years. I taught Remedial Law, aka the Rules of Court, in UP for ten years. Despite these credentials that I am obliged to recite, there is now a move to prevent me from presiding at a picayune public hearing on the blacklisted World Bank contractors.

If my critics wish to vaporize or neutralize me, that is their impossible dream. But it is a different matter if my own colleagues wish to turn me into a monkey who sees nothing, hears nothing, and says nothing. I cannot remain in the Senate and consent to be emasculated. Hence, I express in the strongest terms my disgust at this transparent attempt to play puerile power games with me. I do not think that the public will be thrilled, much less edified, to watch senators fighting for turf, as if the territory of corruption were not extensive enough in this corrupt country.

Let me serve notice that if I continue to be treated without the respect that I am entitled to as a co-equal senator, even only because of my age and my experience, I shall be compelled to tender my resignation as Senator of the Philippines, and to bring this issue directly to the Filipino people. Let me ask the three big-time contractors – E.C. de Luna Construction, Cavite Ideal Construction, and CM Pancho Construction: Are you people behind this move to prevent me from presiding at the hearing tomorrow? Are you happy now?

May I know if I am permanently barred from presiding at the investigation of any scandal, even if it directly falls under the jurisdiction of the committee on economic affairs and on foreign relations, both of which I chair? If so, I respectfully move to submit this alleged monopoly consensus to a vote on the floor.

Meantime, Mr. President, out of delicadeza, I leave to the sound discretion of our colleagues the question of the scheduled public hearing tomorrow, and who shall preside over it. Because of its urgency for the public interest, I shall deliver tomorrow afternoon the sponsorship speech on the baselines bill, and then proceed to interpellation.

I avail of my parliamentary privilege, and I refuse to take any questions. Instead, I shall now walk out of this Senate, to express my strong personal disgust at the exhibition by some of our colleagues of the absence of common decency, and the failure of parliamentary conduct, in connection with the big-time contractors blacklisted by the World Bank.

2009-01-22T14:46:00.003+08:00

Transcript of Sen. Santiago's interview

21 January 2009

On the government’s economic stimulus package

What this means is that government is going to spend P330 billion creating jobs so that more money would go to the people and will circulate in the economy, and in that way we can offset the expected adverse consequences of the recession in America .

Most governments in the world are making these stimulus packages, so there is nothing unusual, much less anomalous, about it. However, the devil is in the details. We have 330 billion to spend. That should be spent in improving agricultural productivity. If we are going to spend money anyway, let’s make sure we’ll have economic security, that is to say that we will not be at the mercy of rice exporters or fish exporters when the crunch comes.

As chair of the committee on economic affairs, I prefer that the 330 billion economic stimulus money should be spent on agricultural productivity, namely on such infrastructure projects such as the building of small-scale irrigation systems or of farm-to-market roads—more or less permanent improvements that can be availed of by the people.

I am definitely against spending any part of the 330 billion to create artificial jobs, for example sweeping streets or buying overpriced uniforms or brooms. This is a very fertile source of graft. There is already a red light flashing on and off. I read that the Metro Manila Development Authority chair has already started hiring more street sweepers. That is the worst kind of economic stimulus you can think of. He is going to use that for electioneering. And I warn that person that if these uniforms are going to be pink and blue, I am going to send him to jail personally.

It may not be enough. Of course it is never enough. You see, what happens is because the United States has less money than it used to have, it is no longer importing as much as it used to be from the Philippines . Of course our exporters are hurting; some are gone outright, some of them have made massive layoffs. So more Filipinos will be losing jobs. If that is the case, there will be money circulating in the economy, and with that everything will rise, oil prices will rise. That is why it becomes necessary for an economist like President Arroyo to adopt a stimulus package to stimulate the economy. First of all you have to release more money.

On US President Obama's inaugural speech

We have all seen this spectacle. It is always spectacular. The Americans want to impress people all over the world that they are the source of the rule of law and of democracy. I doubt it very much, but that is their self-propaganda which they fervently believe.

We simply have to wait and see. I hope that President Obama will not be as hostile to international law as President Bush was. President Bush was a swaggering cowboy. I do not know if he had any academic qualifications for the post because he can’t seem to understand international law. The United States cannot act unilaterally unless it has the support of a Security Council resolution. It cannot be the policeman of the world.

By contrast, President Obama has already announced that he has a timetable for the withdrawal of American troops from Iraq . That is a good sign because Iraq is the Vietnam of our days. That is going to be a deep hole that the Americans has dug for themselves, and unless President Obama seizes the initiative, they might stay in that hole for a long time.

On the composition of the ethics committee

You can’t evade the issue of the 2010 elections. The Filipino people is very fond of self-flagellation because they celebrate presidential elections as if they have anything to look forward to, and then after only six months they begin to make a death wish for the elected president. That is so Filipino.

If those presidentiables (in the ethics committee) were more sensitive to the normal issue that would arise, that is to say the conflict of interest issue, they would have declined membership. But as it is, they have accepted it; that is their responsibility. However, it will become slightly difficult to justify an adverse opinion against Sen. Villar considering that they would be contesting the same seat in 2010. In that situation, you will never be able to evade public accusations on the partiality of the judgment.

Can the ethics committee continue with the hearings without the minority?

There is no rule in our Senate Rules that compels the minority to attend, and therefore we simply considered, and since they did it out of their own volition spontaneously, they have therefore waived any right. In the voting, they would be considered at the very least to have abstained. So we will go by the rule of the majority, at least those who participated.

On the Cabinet reshuffle

My response here is ‘Why am I not thrilled?”. It is unusual because she is at the end of her term and now she wants a new team. That means that the old team is not working—that is logic. So why is it not working? She should have done that for the earlier part of her term. It speaks of troubled waters. They can’t get along with each other there; that is always the case in Malacañang. Because it is the nerve center they can’t get along with each other, they are always fighting little turf wars. And this is how she decides it. The poor president of our country who is already besieged with the massive effort to lift our economy from an impending morass because of the economic recession in America can’t be bothered with these details. This is the way she calms the waters.

On FVR’s letter praying for Sen. Santiago’s health

Don’t you know that God is very conscious about the source of the prayer? If it comes from a polluted source, God would be very upset. So he should stop praying for me.

2009-01-20T11:42:00.005+08:00

Transcript of Sen. Santiago’s Interview

19 January 2009

On her chronic fatigue syndrome

It is actually the long term effect of the assassination attempt in 1992. We never revealed it because my campaign managers said that it will be used against me, people will claim that I am already mentally and physically incapacitated. But now I have to say it because media might speculate on why I am not present in certain occasions.

I was on a car on a Sunday morning going to a speaking engagement up north in a campus. All of a sudden a military jeep came running towards us at high speed and changed lanes so that he will deliberately hit the back of my car where I was seated. I was almost dead on arrival. It was never revealed to the media. I know it was an assassination attempt because immediately the next day, anticipating public response and sympathy, there was an alleged letter to the editor from Tarlac (I was at Tarlac at that time) that I had made the whole thing up just to win sympathy. People went to my hospital room in Tondo in Metropolitan Hospital and they can see for themselves that I could not even talk and that I have swollen to about five times my normal size because of all the bruises that I have suffered. My sister who is cardiologist in Cedar Sinai in Los Angeles said that because of my inherent heart condition—two of my younger brothers died of heart attack—I would be suffering Chronic Fatigue Syndrome. And I did.

Who do you think was behind this?

Ramos, very clearly. I have always maintained that. He was at that time the candidate of the administration. I did file a criminal complaint for frustrated murder against the driver of the jeep to the fiscal in Tarlac and he immediately dismissed it because of course he wanted to earn brownie points with the administration.

On the Baselines Bill

I have already made contingency plans. Sen. Pimentel can defend it. But basically what we are doing is we are just complying with the archipelagic doctrine, that is to say we draw our line that encloses all our islands. We have not included the controversial Spratly Islands as part of our archipelago, and that diffuses the tension that has been generated by China and the other claimants of the Spratly Islands . They have protested some of the versions that enclosed the islands within our archipelago. To sidestep the opposition from other states, we have instead adopted in the foreign relations committee a version that puts the Spratly Islands outside of our archipelagic domain but considers them a regime of islands belonging to the Philippines.

What that means is that each island will have its own base point for measuring such things as the territorial sea, exclusive economic zone, the continental shelf, and so on. Since all of these areas of jurisdiction in international maritime law, I found that these areas of jurisdiction of the Spratly Islands within the baselines from which we start measuring. They will have their own. In effect, we will not be expanding the maritime jurisdiction so much that the other countries will begin to complain because we overlapped with their exclusive economic zone or their continental shelf, for example.

What we have done is we preserved our archipelago, we have preserved our relations with Thailand , Vietnam , and other states, and at the same time, we preserved our claim to the Spratly Islands . We leave that to the negotiations to the next UN Conference on the Law of the Sea. I will deliver the sponsorship speech on Monday.

On Puno as a presidential bet

That is a poison chalice. They are offering a cup of life-giving water to a person who needs it, but, unknown to him and you both, it is toxic.

We already saw that when former Justice Marcelo Fernan aired his plans to run for president he met immediately a very stiff wall of resistance from the political parties and other political leaders. Because he was so disappointed, eventually he made up his mind and ran for senator and he won. He even became senate president.

I know from somebody intimate with the Chief Justice that, as a scholar of the law like me, he has an attitude problem. I have an attitude problem so I put myself in his shoes. I think he has an attitude problem because an academician will take two lifetimes to adjust to a politician’s life. I think—if I may be so bold to put words in his mouth—he absolutely detests the political lifestyle.

There are three things you have to comply with: one, money; two, money; and three, money. I happen to believe that Chief Justices are honest public servants even from the beginning, so where is he going to get at least three billion pesos? You can’t raise three billion; it’s only money that makes money. If you don’t start with anything at all, you can’t hope to raise that much. He will have no money. He has no party. That party that offered its facilities to him is a nonexistent party and exists only in the media if you consider it in conventional terms.

And it creates a problem with jurisprudence because you have a question of the chief of one branch of government crossing over to another branch of government in the light of the fact that the executive is considered a political branch and the judiciary is a nonpolitical branch. What will then happen to the nonpolitical nature of the judiciary if its justices took it into their heads to prepare the way for a possible presidential campaign? So there is just too much complication, foremost of them is that the Chief Justice will never allow himself to be carried away by these intimations of temporary popularity.

The reason why the Supreme Court is low in public approval is that the Chief Justice is a very self-effacing man. He does not like to talk about himself, much less about his ambitions. So there is no hope. That is hopeless. That is a hopeless cause.

I think this is one of the most corrupt governments in the world. I think more of us will agree to that. Not only government—this is a very corrupt society. And the Chief Justice is correct in denouncing it. However, to create a denunciation into a springboard for a political career is highly dangerous. It might even be terminal.

I am not discouraging him. In fact if he will run I will vote for him. But it has no relation to reality. These are just people spinning their wheels. And he is too smart not to know what is being done to him.

Who is urging him to run?

People who might be his friends now, but they would not be real friends. No true friend will ever induce any person to enter Philippine politics in its present complexion. For the chief justice to enter politics is tantamount to expressing a death wish.

2009-01-14T13:50:00.003+08:00

MIRIAM: DOJ MASS LEAVE ILLEGAL

Sen. Miriam Defensor Santiago, a constitutional law expert, said that it would be illegal for prosecutors to stage a nationwide mass leave, to protest President Arroyo’s order placing on leave of absence those involved in the Alabang Boys drug case.

Santiago was reacting to news reports that prosecutors are considering the option of going on mass leave, to express support for their colleagues whom the President placed on official leave.

At this time, a mass leave is being studied by three prosecutors’ groups: National Prosecutors’ League of the Philippines , Chief Prosecutors Association, and the State Prosecutors’ Association.

Santiago cited the 2007 decision of the Supreme Court in the case of Toyota v. NLRC, which ruled that a strike by government employees is illegal, when it is contrary to a specific prohibition of law.

“It would be illegal for prosecutors to go on strike, because it is prohibited by a 2002 resolution of the Civil Service Commission,” Santiago said.

Santiago referred to CSC Resolution No. 021316 entitled “Omnibus rules on prohibited concerted mass actions in the public sector.”

Section 4 of the CSC resolution provides that “The right to self-organize accorded to government employees . . . shall not carry with it the right to engage in any form of prohibited concerted activity or mass action causing or intending to cause work stoppage or service disruption, albeit of temporary nature.”

The resolution goes on to define the term “prohibited concerted activity or mass action” as: “Any collective activity undertaken by government employees. . . with the intent of effecting work stoppage or service disruption . . . which shall include mass leaves.”

Santiago said that in the 2007 case of Sta. Rosa Union v. Coca-Cola Bottlers, the Supreme Court ruled that even if employees do not use the word “strike,” there is still a prohibited strike when employees go on mass leaves.

Santiago stressed that in the 2006 case of GSIS v. Kapisanan, the Supreme Court ruled that the constitutional rights of free expression and assembly, and the right to petition the government for redress of grievances, do not include the right to strike.

Santiago particularly quoted this passage from the Supreme Court decision: “Any suggestion, however, about these rights as including the right on the part of government personnel to strike ought to be, as it has been thrashed . . . Employees in the public service may not engage in strikes . . . The right of government employees to organize is limited to the formation of unions or associations, without including the right to strike.”

Santiago said that the Constitution protects “the right to strike in accordance with law,” emphasizing the phrase “in accordance with law.”

“Since there are laws that prohibit mass leaves by government employees, any mass leave is illegal, and does not fall under the protection of the Constitution. Any mass leave by prosecutors would fall under the prohibition of the Civil Service Commission which was first laid down in a 1987 by means of Memorandum Circular No. 6,” she said.

Santiago said that CSC Memorandum Circular No. 6 was accompanied by Executive Order No. 180, both issued in 1987.

The senator explained that the prohibition against strikes by government employees is a rule of common law which has been adopted by the Philippine Supreme Court in a long line of cases beginning in 1983.

“The law prohibits strikes in the public sector because they prejudice public services,” she said.

Santiago cited the 1987 case of Bangalisan v. Court of Appeals, which ruled that: “The right of government employees to organize is limited only to the formation of unions or associations, without including the right to strike . . . One wrong cannot be righted by another, and redress, for even the most justifiable cause, should not be sought by proscribed or illegal means.”

Santiago said that the remedies available to prosecutors are: the principle of “exhaustion of administrative remedies,” and a bill in Congress granting authority to, and recognizing the right of, government employees to go on strike.

2008-12-16T11:30:00.000+08:00

MIRIAM: CHARTER FORBIDS TRILLANES MOVE

Sen. Miriam Defensor Santiago filed a dissenting opinion to the proposed Senate resolution amending the Senate Rules by allowing detained Sen.. Antonio Trillanes to participate in Senate sessions by teleconference or videoconference.

Santiago , on sick leave, told the media that she expects administration senators to sign her dissent, including senators Joker Arroyo, Richard Gordon, Manuel Lapid, Ramon Revilla, Jr., and Juan Miguel Zubiri.

The Senate Rules can be amended by a motion presented one day before its consideration, by a vote of the majority of the senators present in the session.

Santiago ’s 10 legal grounds are listed in the enclosed dissenting opinion, which shall be circulated among administration senators.

Santiago , although on sick leave, has influenced Senate votes on important issues. Last week, she released an opinion that it might be unconstitutional for the Senate to detain former agriculture secretary Jocelyn Bolante for the fertilizer fund scam, leading the Senate to release him.

-End-

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15 December 2008

DISSENTING OPINION

TO PROPOSED RESOLUTION FOR TRILLANES TELECONFERENCE

By Sen. Miriam Defensor Santiago

This is to respectfully dissent from the proposed resolution to amend the Senate Rules to allow electronic participation by detained Sen. Antonio Trillanes in Senate proceedings. The grounds for my dissent are as follows:

1. The resolution might violate the Due Process Clause of the Constitution. It will deny due process to the state, represented by state prosecutors who have charged Trillanes with two counts of coup d’etat: one for the Oakwood incident, and the other for the Peninsula incident. If there is any move to allow Trillanes’ electronic participation, the principle of fair play dictates that there should be notice and hearing to the state prosecutors concerned. The resolution merely represents the view of certain senators, who are airing the side of the accused. The Senate has not heard from the side of the prosecution. Since due process requires notice and hearing to all parties involved, merely passing a resolution would be a denial of due process to the state.

2. The resolution might violate the Equal Protection Clause of the Constitution. It might serve as a bad precedent for other persons in other circumstances to invoke a right to participate by electronic means in collective decision-making. Admittedly, the resolution is not limited to a detention prisoner, but includes those who are hospitalized or ill. However, the effect of the resolution would be to make the Senate a singular institution, distinguished from all collective institutions, because the Senate alone would conduct its plenary sessions by electronic means. This would be deleterious to other important collective agencies, such as the House of Representatives, the Supreme Court, the Court of Appeals, and even the President’s cabinet. Should a constitutional issue be raised on the basis of the Equal Protection Clause, the Supreme Court will be faced with the choice of either striking down the Senate resolution, or the untenable choice of making the privilege available to all members of collective public agencies.

3. The resolution violates the common law principle that: “He who comes to court, should come to court with clean hands,” also known as the “clean hands” principle. Trillanes does not come with clean hands. By means of his two nationally-televised coup attempts, he has demonstrated his contempt for the existing governmental system, and for the rule of law. If he had succeeded, he would have been hailed as a hero. But he failed, and is now a suspected criminal. In effect, he is a political offender, who is defined as a criminal driven by ideology. It appears that the Trillanes ideology is to destroy the present government. Thus, he is now barred from seeking the privileges of the very same government he sought to destroy.

4. Trillanes is seeking a privilege that not even presidents and queens have dared to demand. Heads of state, such as the RP and US presidents, as well as the UK queen, appear personally when they deliver state of the nation addresses to the Congress. They do not do so by teleconference. Admittedly, Trillanes is absent because he is under compulsory detention. But his election as senator does not operate to erase the crimes that he apparently committed in full view of the national TV audience. To allow him teleconference rights would be to reward those who have openly expressed contempt for the social order. In fact, if he wishes to be a hero, he should stand his ground and refuse to accept any and all privileges from the Senate, one of the principal institutions that his coup, if it had been successful, would have destroyed.

5. It is not necessary to amend the Senate Rules, because Senate tradition already allows participation of an absent senator in plenary sessions. This is done when the absent senator requests a present senator to read into the records his debate paper, such as interpellations.

6. It is not beneficial, because from a cost-benefit analysis, the expense is not worth one senator’s participation. The resolution is not based on hard data concerning how much the total cost will be.

7. Absence of a senator does not deprive any particular constituency of representation. A senator is elected nationwide, on his main qualification of competence for policymaking. Thus, it cannot be argued that failure of a senator to participate in Senate proceedings would deprive his constituents of a representative. Unlike a member of the House of Representatives, a senator has no defined constituency to represent. A senator is meant to represent the entire country in helping to make policy decisions.

8. The proposed resolution invokes R.A. No. 8792, or the Electronic Commerce Law of 2000, as well as the SEC circular authorizing board meetings through teleconference. Both citations are unavailing. As its name implies, the law is intended primarily to promote commerce. SEC is a major player in the commerce sector. The law makes no reference at all to legislative proceedings, and is thus irrelevant to the issue.

9. Rule 41, Sec. 117, provides that the vote of an absent senator shall not be counted. This Rule is so old that it derives its legal force not only from its inclusion in the Rules, but also from the fact that it has become a tradition. It would denigrate the voting process in the Senate to allow an absent member to vote by remote means.

10. It would be inconsistent for me personally, to favor teleconference rights for Trillanes, when I have a pending complaint against him with the ethics committee. Under Senate Rule 34, acts which offend a public institution shall be deemed unparliamentary. Further, the intent of my complaint against Trillanes is for the Senate to punish him for disorderly behavior in two coup attempts: one before, and one after, his election as senator. If the Ethics Committee so recommends, the Senate may suspend him for 60 days or even expel him outright. I cannot possibly request the Senate to expel him on the one hand; and to allow him to participate in Senate sessions by remote means, on the other hand. That would be unethical prevarication.

2008-12-10T13:25:00.002+08:00

MIRIAM WANTS MMDA BUDGET SLASHED; SUSPECTS MMDA FUNDS TO BE USED FOR FERNANDO’S CAMPAIGN

Senator Miriam Defensor Santiago today asked Senate President Juan Ponce Enrile to reduce the budget of the Metropolitan Manila Development Authority (MMDA) by P13 million.

In a letter to Enrile, Santiago said she suspects that MMDA funds will be used to support MMDA chair Bayani Fernando’s announced presidential bid. She cited as evidence Fernando’s “giant posters” around and outside Metro Manila.

“Mr. Fernando is engaged in an unlawful premature campaign, and it is highly likely that he might use the funds of the MMDA,” Santiago said.

Santiago also said that Malacañang’s version of the MMDA budget for Maintenance, Operating and Other Expenses (MOOE) was only P1..539 billion, but the House version raised it to P1.552 billion.

“I am not convinced that there are valid reasons for the increase by the House. If the MOOE increase is really necessary, the Office of the President would have included it,” the feisty senator explained.

Santiago is unimpressed with the performance of the MMDA under Fernando’s helm.

“The MMDA is not easing traffic in Metro Manila. Instead, it is merely transferring chokepoints from one place to another. It is not beautifying Metro Manila. Instead, it is merely painting conspicuous roadside houses with the colors pink and blue, which are Mr. Bayani Fernando’s signature colors,” she said.

2008-12-09T13:12:00.000+08:00

MIRIAM: JUDGE, NOT SENATE, SHOULD DETAIN BOLANTE

Bolante’s detention by the Senate might be unconstitutional. It appears that there is a conflict between the constitutional privilege against self-incrimination, and the Senate Rule on detention for contempt.

On the one hand, the Constitution provides that no person shall be compelled to be a witness against himself. On the other hand, the Senate Rules provides that the committee may punish for contempt any witness who testifies falsely or evasively.

The Supreme Court, in interpreting the constitutional provision, has repeatedly emphasized that there is a difference between a mere witness and the accused. It appears that Bolante is not a mere witness, or a mere person of interest, meaning a suspect. He is in fact the accused in what seems to be a criminal case for violation of certain criminal laws, including perjury, malversation of public funds, and plunder.

Since Bolante is the accused, he can refuse outright to take the stand as a witness. In the latest 2007 case of Standard Chartered Bank v. Senate Committee on Banks, Financial Institutions and Currencies, the Court repeated the rule that an accused occupies a different tier of protection from an ordinary witness. The Court said: “Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any or all questions.”

The Court explained that the right of the accused against self-incrimination also applies to respondents in administrative investigations, such as legislative inquiries in aid of legislation. The Court laid down the test for determining whether the right of the accused against self-incrimination can be invoked: administrative investigations should “partake of the nature of, or are analogous to criminal proceedings.”

The Supreme Court has applied the exception in favor of the accused in administrative cases and proceedings that partook of the nature of a criminal proceeding, or was analogous to a criminal proceeding. The Court first applied the exception in the 1962 case of Cabal v. Kapunan. It continues to be quoted with approval by the present Supreme Court. In the 2006 case of Rosete v. Lim, the present Supreme Court ruled: “It is likewise the opinion of the Court that said exception applies to parties in civil actions which are criminal in nature. As long as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that control.”

In Standard, the Court ruled that the persons summoned by the Senate could not invoke the rule against self-incrimination, because they were summoned merely as witnesses. Thus, the facts in Standard are different from the Bolante case. But the ruling remains the same. More specifically, the Court in the 2007 Standard case cited with approval the ruling in the 1985 case of Galman v. Pamaran, that the right against self-incrimination applies to all cases in which the person is sought to be punished.

My interpretation of the 2007 Standard ruling is: in legislative inquiries, the Senate may compel a mere witness to testify under oath, but it cannot compel the accused himself to testify. If the Court cannot compel the accused to testify, neither can a Congress committee.

This ruling is based on the distinction between the purpose of a trial court, and the purpose of a legislative inquiry. In the 2007 case, the Court ruled: “The prosecution of offenders by the prosecutorial agencies and the trial before the courts is for the punishment of persons who transgress the law. The intent of legislative inquiries, on the other hand, is to arrive at a policy determination, which may or may not be enacted into law.”

In the same case, the Court also said that a Congress committee cannot penalize a violator, except when it exercises the power to punish for contempt. However, the Court was talking about a mere witness, and not about the accused himself.

Parenthetically, under the Rules of Court, while a judge may summarily punish a person for direct contempt, meaning, misbehavior in the presence of the Court, the citation for direct contempt is punished only by a fine of no more than P2,000, or imprisonment of no more than ten days or both.

If the Senate continues to detain Bolante, the detention might be unconstitutional, because it appears that the Senate has already enough inputs to arrive at policy determination, which is the sole purpose of a legislative inquiry. The Senate Blue Ribbon Committee’s power is limited only to the filing of a committee report recommending that Bolante should be charged before the Ombudsman.

The Court has ruled that the Senate’s recommendation, along with the evidence, constitutes the boundary of Senate jurisdiction: “At best, the recommendation, along with the evidence contained in such a Report, would be persuasive, but it is still up to the prosecutorial agencies and the courts to determine the liabilities of the offender.”

The question may be raised on whether Bolante waived his right against self-incrimination, by appearing and testifying before the Senate. I respectfully submit that he made no such waiver. It was his right to narrate his version to us – no matter how outrageous, as I myself pointed out during the first hearing – but he still retains the right to refuse to take the witness stand at a farther point.

Even on sick leave, I issue this humble statement, in the hope that the Senate Blue Ribbon Committee will consider the jurisprudence. My humble proposal is that Bolante, on his motion, should be released. (Anyway, he might file a motion for temporary release for Christmas, which has to be granted for humanitarian grounds). Immediately thereafter, the Blue Ribbon Committee could submit to the Senate in plenary session a partial report recommending that the Ombudsman should immediately conduct preliminary investigation and file the case before the Sandiganbayan. There, Bolante will have to be detained unless he posts bail. However, if the case filed against him is plunder, which is nonbailable, then he would continue to be in detention.

Despite my own personal assessment that Bolante is stonewalling, as a constitutional scholar, I respectfully submit that all Congress members are bound by the constitutional warning that the rights of persons appearing in legislative inquiries should be respected.