Miriam Defensor Santiago's Blog, page 8

MIRIAM: ACT ON MEASURES PROTECTING OFWs

As another Filipino faces execution abroad, Sen. Miriam Defensor Santiago prodded her colleagues to act on pending bills and resolutions aimed at protecting the rights of overseas Filipino workers (OFWs).

Santiago, a celebrated trial court judge and a recipient of the Ramon Magsaysay Award for government service, has authored several measures in the 16th Congress concerning migrant workers.

“The case of Mary Jane Veloso, who is now on death row in Indonesia amid allegations of drug trafficking, adds sense of urgency for the Senate to intensify legislation protecting our OFWs,” the senator said.

Santiago added that she had written the committee on labor earlier this year to ask that it prioritize her measures, including at least five resolutions seeking inquiries, in aid of legislation, on cases involving OFWs.

In November 2014, Santiago filed Senate Resolution No. 1007, urging the Senate to probe the reported proliferation of illegal recruitment incidents online. She also pushed for a similar probe in April 2014 through S.R. No. 608.

Other Santiago-authored resolutions aimed at protecting OFWs include:

(1) S.R. No. 992 filed on 14 October 2014, directing the Senate to investigate reports of the double visa scheme by recruitment agencies;

(2) S.R. No. 345 filed on 7 November 2013, calling for hearings on the need to strengthen state protection for OFWs and anti-human trafficking efforts in the country; and

(3) S.R. No. 48, filed on 15 July 2013, urging investigations on the alleged deployment of overseas Filipino workers to war-torn countries despite bans imposed by the government.

“It appears that Veloso is a victim not only of illegal recruitment, but also of drug syndicates using unsuspecting OFWs as drug couriers. Such cases may be avoided if we put in place stronger safeguards,” Santiago said.

The senator’s statement comes amid public outrage over the death sentence for Veloso in Indonesia. Veloso was arrested, tried, and convicted in Indonesia in 2010 for allegedly smuggling 2.6 kilograms of heroin into the country.

The migrant worker however claimed that she is a victim of an international drug syndicate. Her counsel meanwhile noted that Veloso was not able to defend herself well, and was deprived of a lawyer and translator during interrogation.

The government has appealed for clemency on behalf of Veloso in 2011, but Indonesian President Joko Widodo in January this year rejected one batch of clemency requests, including Veloso’s.

Citing data from an advocacy group for Filipino migrant workers, Santiago said that while Veloso is the only Filipino facing execution in Indonesia, globally, some 123 other Filipinos have been sentenced to death.

“All legal and diplomatic means must be exhausted to ensure that Filipinos abroad are not wrongfully deprived of life or liberty. But the ideal situation is one where remedy is not necessary. We must prevent these cases from happening,” the senator said.

MIRIAM BILL MAKES OFFICIALS LIABLE FOR PAST OFFENSES

Sen. Miriam Defensor Santiago filed a bill to make public officials liable for crimes allegedly committed during past terms of office, to reject the view that reelection of an official is tantamount to condonation of his past crimes.

Santiago, a laureate of the Magsaysay award for anti-corruption, seeks to amend R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, by making an elective official liable for any violation of the Anti-Graft Act although the violation was committed during a prior term and although the official was reelected.

Senate Bill No. 2716 follows the claim by the camp of embattled Makati mayor Junjun Binay that he should not be prosecuted over the alleged overpricing of the Makati parking building, because the alleged anomalies occurred during his previous term of office.

“That is a cross-eyed simplification of the problem. The first qualification for a public office should be honesty or integrity. It is wrong to equate the reelection of a public official to condonation of his past criminal offenses,” Santiago said.

Binay’s lawyers cited the 1959 Supreme Court decision in Pascual v. Provincial Board of Nueva Ecija, which prohibited the court from disciplining an elective official for a wrongful act committed during his immediately preceding term of office.

Santiago said it is “very disturbing that the Pascual ruling was reiterated in the 2010 case of Salumbides v. Ombudsman. The two cases were cited as bases for the so-called principle of condonation.”

“The result would be ludicrous. Any public official will feel free to commit any crime, including plunder, and thus winning reelection, if it automatically means that his previous crimes are condoned,” she said.

MIRIAM: NO CONTEMPT BY OMBUDSMAN IN MAKATI CASE

Sen. Miriam Defensor Santiago, a former multi-awarded RTC judge, said that in the contempt case filed against them by the camp of Makati Mayor Junjun Binay, the Ombudsman and her co-respondents are not liable under the ruling of the Supreme Court in the 2008 case of Gobenciong v. Court of Appeals.

In that case, the Supreme Court ruled: “The Office of the Ombudsman can, as a matter of statutory empowerment, validly order the immediate execution of a preventive suspension after determining the propriety of the imposition, regardless of the remedy of reconsideration made available under the law to the suspended respondent.”

Santiago explained: “Thus, the Ombudsman can order the immediate suspension of a sitting mayor, who is not allowed to plead that he needs time to file a motion for reconsideration.”

Santiago said that in the Gobenciong case, the Supreme Court rejected the argument that the sitting official was denied due process of law, just because the suspension was immediately implemented.

The senator also said: “In the Gobenciong case, the Supreme Court said there was no legal basis for the argument that immediate implementation of the preventive suspension would deny due process. In fact, the Supreme Court added that since preventive suspension is not a penalty for an administrative offense, preventive suspension can be imposed without prior hearing.”

In the Gobenciong case, the Supreme Court denied the motion to cite the Ombudsman in contempt on the ground that it had “become moot and academic for the preventive suspension had been served.”

Under the Gobenciong ruling, Santiago said that the Ombudsman cannot be held in indirect contempt because under the Rules of Court there is no “disobedience of or resistance to a lawful writ of a court.”

“A contempt order usually arises according to the Rules of Court for ‘any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice.’ It is not the case,” the senator said.

However, Santiago also pointed to a 2011 case, Strategic Alliance Development Corp. v. Star Infrastructure Development Corp. where the Supreme Court held: “Although the general rule is to the effect that a writ of preliminary injunction cannot be issued against acts already fait accompli it has been held, however, that consummated acts which are continuing in nature may still be enjoined by the courts.”

Santiago said that the apparent collision between the 2008 Gobenciong case and the 2011 Strategic Alliance case should be resolved by the Court of Appeals.

She added that one of the petitioners might elevate the case on a petition for review on certiorari concerning a question of law to the Supreme Court, which has discretion on whether to pass upon the petition.

The senator was guest speaker at the leadership forum conducted by Maynilad last Wednesday, 25 March 2015.

TRANSCRIPT OF THE INTERVIEW WITH MIRIAM

After her speech for the Maynilad Leadership Talk at GT-Toyota Center, UP Diliman, 25 March 2015

 

You said in your speech that we should think about MVP for president. Was that an endorsement?

Yes it is. People who are like him should be in the position of leadership. It should not be people from highly publicized careers, because the careers where they are, the leading celebrities, might blind them to think that their qualifications are inspirations for the job. I’m particularly talking about people from mass media, films, and television. My qualifications are, number one, the person should be honest, but that is the most difficult qualification to determine, because there is no guaranteed test for honesty in public service. The second is professional excellence, and the third is academic excellence.

As I’ve said, before the 2016 elections, my hope is that we can amend the Constitution, among other things, because we might need to amend it anyway from the BBL law. Amend the Constitution and change the qualifications for public office and require at least a college degree. Because right now, a person can run for president without graduating even from high school, but you cannot be a policeman unless you have a college degree. So, we have to reconcile these contrarieties in our society.

 

On her presidential plans

Well, just because it’s an option for me, doesn’t mean I have to close all options. I’m just saying, thinking aloud, to the young people what type of candidate I have in mind. Maybe we can run a survey on the Internet and find out what the educated young think about all this circus in politics. Kaya nagiging corrupt kasi wala silang moral character, mahina ang moral character nila dahil sa kulang ang edukasyon. So, this all starts with voter education.

 

On the manifesto urging former Sen. Lacson and Sen. Poe to form an alliance for 2016

That comes from the camp of either one of them. In practical terms, you cannot think of any person or persons who will come together and say let’s spend our money on a full-page ad. It’s too expensive just to express a casual opinion. And number two, they did not present any strong case why they should pick these two people together. It’s not like they have some experience or they have some mileage in working together and prove to be a very cohesive and effective team. So, these make it suspicious right away. These are just the original ramblings of the clash of tectonic plates that will occur in 2016. This is just the start of the campaign. In that case, as a veteran candidate, I can dismiss it offhand as part of the PR work of a team working for either camp.

 

On who she thinks lied during the Senate hearing on the Mamasapano clash

I do not have to identify personally, but it was an orgy of truth-twisting. I would say, you notice in America, it depends on the judges, the judges sometimes prohibit mass media coverage. You cannot expect the full truth in an event heavily covered by the media. The media has an effect. As they say in Philosophy, the presence of the observer changes the observed. Iba talaga ang kilos ng tao basta nasa harap sila ng media kaysa ‘pag sila lang. Kaya kung minsan sa court hearings, merong hearings held privately in camera. So, since the expectations were low anyway, exactly, the reality ruled the fears to be well-founded. Many were not telling the whole truth. You know, if you tell half a lie or half the truth, that’s no longer the truth. Remember that the oath is to tell the truth, the whole truth, and nothing but the truth. They were telling the truth, but from their own point of view. Truth has many versions during that hearing.

What do I think of the committee report? I signed it only to show that I joined the general sentiment. It does not mean that I agreed with every one of the findings. It’s simply that I wanted to express the sense of the Senate as a collective.

 

 

On federalism for the Philippines

No, it will create more problems. Number one, the Filipino people will have to realize that they will lose the right by their own single vote to choose the president of the Philippines or whoever will be called the head of state, maybe prime minister or premier. Imagine, you and I will not directly have the power to choose in our individual ballot who we want to be president of our country. Instead, first we elect our members of parliament who are the equivalent of the congressmen. And then, once selected, they—that gang of politicians—will choose from among themselves. Now, how does that work on practice? You notice that we always have a Speaker of the House and a Senate President, but they have never been popular. None of the Speaker of the House of Representatives, none of the Senate presidents has ever been popular because of their work as such. That’s because people believe that they mostly devote their time to manipulating politically available resources for their own good. So they play politics, that is the impression, and that is why no speaker or senate president elected by their own colleagues has ever been popular. That will exactly be the situation if we change to federalism. The masses and the entire electorate will not choose who the president will be. We leave that choice to a group of politicians, and we know how those politicians act. Mostly, their actions are always attended by corruption. So it could be possible if we elect corrupt members of parliament, it could be possible that if they put themselves on sale, the candidate with the highest bid or the highest bribe will become the next prime minister. That’s what I fear because of the present state of our masses.

 

On the MILF report on the Mamasapano clash

It is of course expected that [the MILF] will justify [the actions of their men]. We have the BOI and a Senate report on behalf of the government and we have an MILF report on behalf of the rebels. You can immediately see that there are two perspectives on the incident. Generally, in a court of law, the decision will go in favor of whoever has the closest approximation of the truth. But since we are not in a court of justice, this issue has to be referred to the court of public opinion.

But it is ironic, I must say—and maybe indicative of truth distortion—that they claim they had no knowledge of these two high-value targets the government was pursuing and yet those people were apparently just a couple of kilometres away from the hideout of the MILF at the time. Do they mean to say that they had no knowledge of who were in the perimeters of their homeland? That’s an incredible claim. They cannot pass the test of credibility and that casts a shadow on the whole report.

I cannot accept that high-value targets are living right there—maybe not even just the fringes, but right there—in their heartland, and they disclaim any knowledge. What does that say of their military organization? That means that if they cannot even conduct simple intelligence-gathering activities, they do not deserve to be treated as partners to a peace process.

 

On the resumption of hearings on the proposed Bangsamoro Basic Law

There are three committees to which this matter has been assigned: The first committee—the major committee—is local government; the other one is on peace and reunification; and the third one is on constitutional amendments, which I chair. My own report is finished, but I understand that the committee on local government headed by Sen. Marcos is not finished. Instead, it is in the middle of its proceedings. We all have to wait for all three committees so that we can produce a coordinated report, or we can at least produce three reports. So I don’t expect a report by those three committees any time soon. Don’t hold your breath.

 

On Aquino’s refusal to apologize over the Mamasapano clash

That is a hindsight question. How should he have handled the situation? It should have started at the very beginning. The truth should have been revealed immediately. The moment that the crisis began brewing, immediately the President should have, by himself, told the truth to the Filipino public.

Now, there is a question of, “Well if that is the truth, why are you not apologizing?” The answer is because he wants to avoid any liability arising from a confession after his term finishes in 2016. Remember that when he is no longer President, he becomes liable to all manner of suits. He loses his immunity from suit, both civil and criminal. So he is afraid that if he apologizes, in effect, some court might consider that as a confession admissible in court. Therefore, he will be his own worst witness. That is why he does not want to apologize. He wants to evade any criminal or even civil liability after 2016.

 

On the Ombudman’s power to suspend Makati Mayor Binay

This is a case of first impression. Una, na-serve na ang suspension, saka pa lang nag-issue ng TRO ang Court of Appeals. Maraming kaso sa Korte Suprema tungkol sa TRO, the power of the Ombudsman, and what happens in such a case. So pinili ko ang prevailing case. Meaning to say, that is the leading case, and that is how the law should be interpreted. It is the case of Gobenciong v. Court of Appeals.

Sabi ni Mr. [Gobenciong] sa Korte Suprema, “There is something wrong with that Ombudsman. Ginawa niya ang preventive suspension ko na immediately executory. Hindi dapat ganoon kabilis. I still have time, under the Rules of Court, to file for reconsideration. Why did she suspend me immediately?”

Ang sabi ng Supreme Court, “There is a law giving that power to the Ombudsman.” It was talking about the Ombudsman Act. The first reason of the Supreme Court is it is a locally awarded power given to the Ombudsman by the law. She has that power. The second is that it was not a penalty. We are not yet talking of suspension as a penalty; we are only talking of a preventive suspension. The only purpose of a preventive suspension, said the Supreme Court, is to prevent a sitting official from tampering with the records in his favour. The Court said that it’s not even penal in nature yet, it’s only preventive. That’s why the Ombudsman can even issue a preventive suspension order without a hearing. She does not have to listen to the other side, because she is not punishing, she is merely preventing. That is the ruling in that case.

Normally, since it is the prevailing case, it should be followed in the case of Binay. There should therefore be no case of contempt found against the Ombudsman and her co-respondents such as the Secretary of Justice and others under this ruling. That’s what the Supreme Court ruled. It’s almost an identical case. The case was brought before the Court of Appeals and then it was brought to the Supreme Court. Likely, whoever loses at the level of the Court of Appeals will bring the case on a petition for review in the Supreme Court. So this contempt case will take a long time to litigate.

 

On the gridlock between suspended Makati Mayor Binay and acting Mayor Peña

The case has to be resolved by the courts as soon as possible because of the resulting gridlock between the two mayors. The immediate issue now is: Who will be followed by city hall employees. There are many reasons why the two parties want to be the acting mayor. The first reason is that there is a lot of money-under-the-table going on in every city hall in the country. The mayor, normally, in that kind of a situation, is also privy to that transaction. So he will lose a lot of money staying out of office for six months. Another reason would be the 2016 elections. Whoever is the incumbent will, of course, have the bigger advantage during the elections.

MIRIAM PRODS SENATE ON BILLS FOR WOMEN’S RIGHTS

As the country celebrates women’s month, Sen. Miriam Defensor Santiago sought wider public support for her bills aimed at placing Filipino women on equal footing with men.

Santiago, author of the Magna Carta of Women (Republic Act No. 9710) and co-author of the Reproductive Health Law (R.A. No. 10354), said some of her proposed legislation on women and gender equality remain at the committee level.

“I have written the committee on women, family relations, and gender equality earlier this year to ask that it prioritize public hearings for my bills,” the senator said.

Among her measures pending in the committee is the proposed Child Support Act (Senate Bill No. 403), which seeks to penalize any parent who refuses to support a child.

“This will protect single parents, especially women, from being financially abandoned by the child’s other parent,” she said.

Santiago also filed the Safe Haven Bill (S.B. No. 2457), which caters to women unprepared or unfit for motherhood, while ensuring the safety of their babies.

If enacted, the bill will allow women to leave newborns with government-assigned safe haven providers rather than haphazardly abandoning them.

The Battered Women’s Testimony Bill (S.B. No. 1558), meanwhile, seeks to facilitate the use of expert testimonies in cases of women subjected to domestic violence.

Santiago is also pushing for the creation of a task force that will recommend a national strategy to protect women against violent crime (S.B. No. 1801).

Other pro-women bills filed by Santiago are:

S.B. No. 1751, which, if enacted, will allow women to use their maiden first name and surname;

S.B. No. 1771, which seeks to eliminate gender bias in adultery and concubinage in the Penal Code; and

S.B. No. 1722, which seeks to establish a Commission on the Advancement of Women in Engineering, Science and Technology Development.

Santiago is known as an advocate of gender equality through legislation. In 2011, the senator successfully led moves to lift Labor Code prohibitions on night work for women, which she said prevented women from exercising their right to equal access to jobs.

She has also consistently been the top performer in the Senate by filing the most number of bills and resolutions. Despite her lung cancer, Santiago filed 1,007 bills and resolutions from the start of the 16th Congress until the end of 2014.

MIRIAM TO EMPLOYERS: DON’T GET WORKERS’ SOCIAL MEDIA PASSWORDS

Sen. Miriam Defensor Santiago on said employers are violating constitutional provisions on privacy when they access their workers’ personal social media accounts.

Santiago, a constitutional expert, filed Senate Bill No. 2681, which seeks to bar employers from compelling employees or even applicants to divulge their passwords for online accounts such as Facebook and Twitter.

She cited the Constitution, Article 3, Section 3, which provides: “The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.”

The senator said that because of electronic media technology, this constitutional protection is no longer limited to personal information and property in physical form, but extends even to online accounts.

“Most people have social media accounts for sharing personal insights and storing personal information. They deserve the same statutory protection against invasion and abuse of their privacy on the internet and social media,” Santiago said.

The bill, if enacted, applies to all online accounts which allow users to create, share, and view user-generated content, including photos, blogs, videos, audio recordings, instant messages, electronic mail, or other information.

“One way that privacy may be invaded is when employers compel employees or applicants for employment to divulge passwords to their accounts for whatever purpose. This is an invasion of privacy and must be prohibited,” she added.

Under Santiago’s proposed law, employers cannot:

(1) Require or request employees or applicants to disclose passwords or other credentials that may be used to access their online accounts;

(2) Compel employees or applicants to add the employer or an employment agency to their list of contacts associated with a social media website; and

(3) Compel employees or applicants to access a personal social media account in the presence of the employer, so that the employer may view the contents of the personal social media account.

Employees who refuse to grant access to their personal accounts shall also not be punished for protecting their own privacy. The bill also ensures that granting of access to personal accounts will not be part of hiring requirements.

Santiago is considered the most popular senator on social media. As of press time, she has some 2.6 million fans on her official Facebook page, some 1.3 million followers on Twitter, and 10,000 followers on her recently launched Instagram account.

She reportedly outperformed her colleagues by filing the most number of bills and resolutions in the 16th Congress. Senate records show that she filed 1,007 bills and resolutions by end-2014.

MIRIAM: EASE PAIN OF CANCER PATIENTS

Sen. Miriam Defensor Santiago on Sunday urged her colleagues to find ways of helping relieve the excruciating pain suffered by Filipinos battling cancer.

Santiago, who last year announced that she had lung cancer, filed Senate Resolution No. 1215, seeking an inquiry, in aid of legislation, on reports that some 45,000 Filipino cancer patients die annually without access to strong painkillers.

“Every year, 98,200 Filipinos are diagnosed with cancer and 59,000 of these patients die. What is more alarming is the fact that 75 percent of those who die first have to endure unimaginable pain,” the senator said, citing data from the Philippine Cancer Society (PCS) and the Association of Southeast Asian Pain Societies (ASEAPS).

Both groups blamed the painful deaths to low access to strong painkillers, such as morphine. They noted that the country’s consumption was at 0.6 milligrams (mg) per capita, way below the global average of 6.11 mg per capita.

Santiago said factors limiting the distribution of pain medication in the Philippines include insufficient public knowledge, lack of support from the medical community, and the refusal of patients to receive treatment despite their needs.

The PCS and ASEAPS have urged Congress to amend Republic Act No. 9165 or the Dangerous Drugs Law to set rules on providing the seriously ill, especially cancer patients, with easier access to pain medication.

“Congress must ensure that cancer patients have access to means of easing their pain, and are not prevented from such relief by outdated laws, government neglect, or sheer ignorance,” the senator said.

Santiago said the Senate inquiry should identify the best way to address the health issue, which according to her undermines Filipinos’ rights to dignified death.

“It is inhumane for a government to ignore the plea of its people, especially of those in agony due to cancer,” she added.

Santiago was diagnosed with lung cancer, stage four, in June 2014, after months of suffering from chronic fatigue syndrome. She remains on medical leave, but continues to fulfill her Senate duties on a priority basis.

Senate records at the end of 2014 showed that Senatiago has outperformed her colleagues by filing the most number of bills and resolutions so far in the 16th Congress.

TRANSCRIPT OF THE INTERVIEW WITH MIRIAM

From the press conference after the Senate committee on foreign relations hearing on six treaties, 5 March 2015

On the Bangsamoro Basic Law (BBL)

Sen. Miriam Defensor Santiago: Let’s start from the worst possible blockage to the Bangsamoro Basic Law—that is the opinion of the Supreme Court. All roads lead to the Supreme Court. You cannot emphasize certain aspects of possible negotiations between the two panels. Everything must begin and end with the Supreme Court. Unfortunately, we are dealing with the Constitution of the Philippines. The Constitution is immutable, it is unchangeable, it is non-variable. It is not like a rubber band; it does not have that flexibility. You cannot interpret it one way on Monday and interpret it another way on Friday. So we must begin the discussion on the BBL with this basic question: Is it constitutional?

And let us divide that major question. The first subdivision should be like this: What is the constitutional basis for the authority to negotiate on the part of the Philippine government. The President simply assumed he had the authority to negotiate. That is not so. The president does not have sole power over the foreign policy of the Philippines.

The Constitution implies that the foreign policy is shared between the President on the one hand, the Senate on the other. For example, just as I showed this morning, even if the President has already ratified a treaty, it cannot come into force and effect in this country unless the Senate concurs in the ratification. This shows you that the attitude of the Constitution is that foreign policy power must be shared between the president and Congress, but more specifically, the Senate.

Now, where is the Senate authorization for the president to conduct these negotiations, sometimes called the peace process? He does not have an instrument of such nature. He just assumed that he has that power but he does not. If the Constitution requires that the President cannot move in foreign relations unless he has the concurrence of the Senate, how much more does the spirit of the Constitution require that there should be Senate concurrence when the president authorizes a so-called peace process through a peace panel? That is the very first question that tends to be overlooked. It should be the Senate of the Philippines. At least we are representative of the people; he is not.

The second question is, who gave the MILF authority to represent the Bangsamoro among the MNLF, MILF, BIFF and other groups that are now springing into existence? Which one shall be validly allowed to claim that it represents the Bangsamoro or the entire Islamic peoples within the Philippine territory? The first thing that will happen when we pass this Bangsamoro Law is there will be an internal war, another non-international armed conflict, this time among those claiming to be leaders.

So the very first question really is the standing to negotiate. Where is the authority of the president of the Philippines and the MILF to negotiate a substate? That is the first question.

And then let me just go on in this manner. It is irrelevant what date the Senate will hold its debates on whether or not we shall pass this law. Eventually, whether or not Congress passes the BBL, the matter will end up in the Supreme Court. So there is no point attacking people like me just because we say, as dedicated students of Constitutional Law, that it is unconstitutional. We are almost like marionettes, we who have been trained in constitutional law. You feed us a principle and out will come the results. We have no choice. Whether we personally approve of a certain provision of the Constitution, once it is written there, we are bound by it as constitutional scholars.

So we have to stop talking of negotiating the Constitution. That is heresy! The Constitution is supreme. It is a violation of principle of constitutional supremacy to say that we should negotiate the Constitution. What are we supposed to negotiate about the Constitution? The Constitution is non-negotiable, period.

So if only we had bothered for Malacañang to get in touch with the Senate leadership so that we could work out a document in the form of instructions of the Senate to the President concerning the so-called peace talks, this would not have happened. The thing is that everyone overlooked the basic fact: Do they have authority to negotiate? If they claim to have it, what is its basis in the Constitution? Treaty nga lang, hindi mo maisagawa iyan nang hindi kami nag-concur, iyon pang gagawa ka ng substate?

Because there is no question about it: What is being created under the BBL is a substate. And what is irrefragable—without a doubt, indubitable—is that it divides sovereignty. Of course, this is an age when sovereignty is no longer unlimited. That is a negative way of putting it. There are now claims to reduction of sovereignty possessed by a state. That is very hard to understand. The state is equal to sovereignty. So how can there be a state without sovereignty? Answer: That is what happens when the state limits its own sovereignty. It is an auto-limitation imposed by the state on itself.

Let me give you an example. States that are members of the European Union agree to a diminution of their sovereignty because they have to obey what the European parliament says, or what the European court of human rights says. These are auto-limitations on their sovereignty. But otherwise, there is no way you can limit the sovereignty of a state. However, the BBL infringes on our sovereignty as a state because there are powers under the BBL that are exclusive only to them. If their powers are exclusive, that means that they exclude the powers even of our own state.

So this is really much more complicated than what those negotiators think. Why did they not first ask each other and show each other the proper papers for negotiation? That is the normal procedure. That’s the first thing that is done during the process of negotiation: you show each other the papers authorizing you under your government’s Constitution to conduct negotiations with the other party.

During the debate in the Senate, I can draw up a list of all the unconstitutional provisions. I cannot do that at this point because there are so many of them. There is an excess, there is an abundance of unconstitutional features because the negotiators of the Philippine government thought that they can negotiate away certain parts of the Constitution.

For example, our Constitution speaks of local government. Local governments we are familiar with: provincial, municipal, barangay. But nowhere does the Constitution mention a substate. What is the basis for proposing a substate and now securing the consent of the Congress by means of the BBL? What will be our constitutional basis? It is not mentioned, not even once in the Constitution. An autonomous region, yes, that is allowed. That is specifically mentioned in the Constitution. So unless the BBL is first of all transformed into a document for more regional autonomy or autonomy in other guises, it has no legal basis at all from the very start.

So this constitutional problem will prove to the undoing of the BBL, because, as I said, the Constitution is immutable. You cannot change it; it is like the face of a blank wall. You are a marathoner, you’re running, and then all of a sudden you’re faced with a blank wall. You either get over that blank wall by taxing yourself to your limits, or you give up. They have to scale these constitutional obstacles first.

But statements that we can only negotiate, we cannot dictate, are not useful. In fact, they are not intelligent. They recognize that we have a Constitution. That’s why we call ourselves a republic because we are based on a constitutional government. But they tell us that we have to negotiate first. We cannot negotiate a constitutional provision, no matter how solitary it is, or no matter how minor it might seem to others. That is a big problem. As I said it is like facing the blank face of a mountain. First you have to climb that.

So it is not a question of whether I want it to be constitutional or not. That kind of personal moral choice is beyond me; I am not given any margin of safety there. When I read the Constitution according to how I was educated by many foreign and respected authorities in constitutional law, I must make up my mind on whether it is constitutional or unconstitutional. I cannot negotiate, not even a single word in the Constitution. That is what they should remember.

To summarize, let me just say, we have a big problem. To paraphrase, “Houston, we have problem.”

 

On the timeline for the BBL:

We operate on a committee basis here. This matter has been assiged to three committees, including my committee. The primary committee is the committee on local government. So it depends on the chair of the committee on local government. I have already conducted my own committee hearings. One is sufficient because the subject matter over which I have jurisdiction is not dependent on facts; it is dependent on principles, so we only needed one hearing. In the case of Senator Marcos, he thinks more facts need to be gathered first, and he is even thinking of conducting hearings in Jolo or in Zamboanga, or somewhere else in Mindanao.

So under our committee system, since the chair of the committee basically controls the proceedings, it will depend on when he thinks his proceedings are finished. In my case, I will just submit my report to him. We have already agreed. My report is ready. The other committee will submit a similar report.  Then [Sen. Marcos] will either submit all reports together, or he will try to assimilate it.

So to put a timeframe on it, becuase there have been talks that we might finish by July, for me, is irrelevant. That’s not important. You might finish passing a bill but it will immediately go to the Supreme Court. That’s why we must take care to allow for this addendum, and it will immediately be questioned in the Supreme Court.

Let us say that BBL will possibly pass or fail by July, but it will immediately be hailed by the Supreme Court. So we cannot finish it this year; you cannot hurry up the Supreme Court. There is a time limit in the Constitution but the Supreme Court itself has held that it is not bound by those time limits.

 

Is the June target realistic?

For the House of Representatives, maybe, because they appear to be more cohesive there. But as anybody knowledgeable in Philippine politics will tell you, the Senate is a completely different matter with respect to organizational behavior. The Senate, it is often said, is composed of 24 republics. In other words, every senator insists on his own electoral independence. When it’s time for voting, we are unlike the House in which you can predict the results by knowing which groups are going to vote in what way, because you will be able to predict that if they belong to a certain group, they will vote in a certain way. In the Senate, no. You cannot depend on a single senator to vote depending on your provisions.

 

So it’s possible, but as I said, that’s not important because it will go straight up to the Supreme Court anyway. It’s the Supreme Court date that’s important. Let’s assume it passes and it’s petitioned right away in the Supreme Court. How many months will the Supreme Court need? Nobody knows. So to say, for example, that by this year, we will have peace in Mindanao because of the peace process is misguided.

 

Is it proper for the President to include the BBL in his accomplishments for the SONA? Can he secure a Nobel Prize for Peace because of the BBL?

Normally, the Nobel Prize for Peace is given to a person who has distinguished himself in a war or in a battle, not a person who has distinguished himself in a non-international armed conflict. Because in effect, you just have the president fighting the rebels of his government. So if the president wins, it’s a forgone conclusion because of his superior war equipment.

He is not bound by any terms or conditions when he delivers the SONA, but generally, it’s called state of the nation because that is his report card to the people. So, at best, his report card will be narrative in form. It cannot be triumphalist. He cannot say “I tried because I was able to bring peace,” because the kind of peace he will bring will be at best a kind of peace that is in effect an appeasement. You can never have permanent peace by appeasement. We learned that during world wars, in between world wars. Whenever one side appeases the other by saying, well, I’ll give whatever he wants because he might even get angrier. Always that will begin the era of persecution until it boils down to war. So, right now, what I hear around me are calls for appeasement, as if peace equals the BBL. That is not so. That is wrong mathematics.

 

Is the entire peace process unconstitutional?

In my view. I cannot speak for the others, but it is possible that the Supreme Court might see it that way. You know, in the world of foreign relations where I always operated since I was a student, the first time you seat at a negotiating table with the other party there in front of you and you here, the first part of the proceedings is always the exhibition of your credentials or exchange of credentials. Here is my power to negotiate with you, show me your own power, so that we can start on the proper legal footing.  That was not done in this case. It would have provoked a lot of comments, most of them critical from the media itself.

 

Will you submit a committee report on the BBL even if you think it is unconstitutional?

Yes, of course, because it’s my job. You mean as a senator and chair of the [committee on constitutional amendments]? Yes, of course, I will submit a report. And I will be happy to note that some of the most respected and distinguished authorities in international law during our hearing were against the BBL for these precise legal reasons, for these constitutional reasons. They were not expressing personal sentiments, they were citing in effect long histories of constitutional principles. The Constitution is nothing but a series of constitutional principles. We chose which principles we want to adopt for our country, and that became the Philippine constitution, but the moment we ratified that Constitution, it became engraved in stone. You cannot change it anymore.

 

Should the BBL be scrapped altogether in spite of the negotiations?

Well, in my personal view, it would be best if it started the process all over again. First of all, let us find out from the Senate whether it is willing to grant powers to the president to negotiate a separate form of government without specifying a substate. And if so, what form of government? Meaning to say, we’ll simply copy the Constitution which stops at regional autonomy. So in effect you are telling the president that you are limited to what the Constitution says. You cannot go beyond that.

But since events have already taken place, it would be best if Malacañang form its own review committee to review the BBL for unconstitutional features instead of letting other branches of government do it for them. The worst branch of government to intervene for this purpose is the judiciary because it has the power to enforce its decision. In the Senate, we merely express our opinions, but they’re just expressions of how we read the Constitution. Once it reaches the judicial branch of the government, it becomes compulsory. So, it is better if Malacañang would just do that itself, not wait, for example, for the Senate to manifest, maybe by means of a resolution, what should be the proper procedure.

Why does not Malacañang just take it on himself? To appoint for example those luminaries who I invited to my hearing on the constitutionality of the BBL, so that they can form a review committee. If there are changes to be made, it will come from the palace itself. There would be no embarrassment about being dictated to by another branch of the government. After all, remember, we have a system of checks and balances. The main aggravating circumstance is the executive branch did not bother to look at itself, to examine itself whether it had that power or not. It just presumed that it did.

 

Like Malacañang, should the MILF also seek Senate approval before negotiating with the government?

That is what I am saying, I’ve been saying all along. In the case of treaties, that is a clear provision of the Constitution. First, the treaty is negotiated then the Philippines signs a treaty or becomes a party of the treaty and the president ratifies the treaty. That is found in the Constitution. But then he sends the treaty to the Senate, so that the senate can concur in the ratification. That is the correct phraseology. The Senate does not ratify. The president ratifies, the Senate concurs in the ratification. That means therefore, when the constitution is speaking in this manner, what the constitution is saying is that in terms of foreign policy, the president must take care to secure the concurrence of the Senate.

So, it was not feasible under those provisions for the president to just go out of the Palace and proclaim that he had formed a peace panel without informing us thoroughly whathis instructions to the panel were. Normally, when you have these panels, you also at the same time tell the media what are the conditions within which they can negotiate. You cannot say they can just negotiate anything. They cannot negotiate beyond our Constitution. Even at this late stage when we already have the BBL already passing its processes in the Congress, we have no power to change the Constitution. It is absolutely ridiculous; it’s a stinker in constitutional law for another party in a non-international armed conflict to insist that certain constitutional provisions must be negotiated.

That is the height of hallucination. Nananaginip sila na i-negotiate natin ‘yung mga constitutional provision natin. Eh kung sila nga, hindi sila sigurado kung talagang tunay silang nagkakatawan ng mga Muslims sa Bangsamoro. Away-away nga sila diyan, eh.  Kaya I predict the moment that that law is passed, and I’m against it, kaagad mag-aaway lahat ng splinter groups in the Muslim community. Mag-aaway ‘yan sigurado. Armed violence will immediately ensue among themselves. Wala silang process katulad ng sinasabi ko na between Malacañang and the Senate. Wala din silang proseso on who will be the true representatives of the Bangsamoro or how they will coordinate with each other. ‘Yan ang problema nila.

 

On house arrest for Enrile:

Una, where is the due process and equal protection? The Constitution is based on two great principles. May ituturo ako sa inyo, ha. Basta may constitutional problem, kaagad sabihin mo, due process of law, o kaya equal protection of the law. Dalawa lang, ‘yun lang. does it violate due process of law? Does it comply with equal protection of the law? Dalawa lang sabihin mo, mukha ka nang authority niyan. The whole constitution provides only for due process and equal protection, no other thing. As long as you have these two sentences, you can have a Constitution.

Ngayon, equal protection of the law requires that although people are by nature unequal, the law must treat them equally. That is what it means. The law must treat every person equally. There is something faulty about that logic, but never mind, that is the current state of affairs. The law must treat every person similarly situated in the same manner. Otherwise, the action is unconstitutional.

Ngayon, may problema agad tayo. Bakit si President Gloria Arroyo, former president of the Philippines, bakit bibigyan siya ng hospital arrest, samantalang si Enrile bibigyan ng house arrest, at former senate president lang siya. That’s already a violation of what? Answer my question. It violates what? Equal protection of the laws. See? Constitutional scholars na kayo. Hindi equal protection ‘yan under the law.

Plus, let us deal more deeply in this equal protection principle. Now what about age? Are we going to take it into consideration, how many people of this age have died in jail waiting for these appeals to be decided? Why are we making an exception for him? If we want persons of that age to stay out of jail, let us have a law. That is the procedure.

Don’t ask for an exception for one person in a democracy. You ask for a law that will make it possible to attain certain conditions for everybody who falls under the requirements of the law. That is due process of law. Basta nag-comply ka sa requirements, you fall automatically. So it is verboten, it is completely prohibited for the law to seek special treatment just for one person alone, no matter how ill he might be, unless he is at the point of death, and after that, he would have to return from where he came from.

Ano ang ibig niyang sabihin? Basta may lagnat siya, may pneumonia siya? We all know that pneumonia has very tricky aspects. It mimics colds. Kung ubuhin ka pala, pwede ka nang ma-house arrest? Eh di umubo ka nang umubo.

What I’m saying is that it does not meet the threshold of a possible threat to the life of a person, because every person is entitled to life. But not in that sense. You are trivializing the constitutional principle, if you are going to argue that his right to life includes his right to be taken away from the proper correctional facility where he is being held.

This is a no-brainer, this question on whether he should be given this kind of treatment. That’s why his jailkeeper has been demoted and is now facing charges. Maliwanag na puro pera lang ang magpapairal. Apparently, there was no proper proof of pneumonia. Otherwise, lahat na lang ng tao sa jails natin magkaka-pneumonia, sigurado ako. When I was a judge, I had a no-postponement policy. I told them, this court will not grant any postponement for any reason except death, and if you claim to die you better be dead because I’ll kill you anyway. Ang ginagawa nila para hindi sila mapagalitan or ma-cite under contempt of court, they claim to have diarrhea. So when I was a judge, I was surprised at the extent of diarrhea in the Philippines, at least in Metro Manila. Lahat na lang sila may diarrhea, ang testigo, ang abogado, ang party to the case. Kaya magiging ganoon na yun. If we allow this, lahat na lang ng matatanda sa kulungan magkaka-pneumonia. There will be an epidemic of pneumonia.

MIRIAM: CHINA INTRUDING IN PH POWER INDUSTRY

Sen. Miriam Defensor Santiago today warned that the country’s power industry has been infected by a “national-security virus,” as she revealed that China has a stake in the company managing electricity transmission systems in the Philippines.

The senator said that a firm run by the Chinese government, the Philippines’ rival in a bitter territorial dispute over the West Philippine Sea, holds 40 percent of the capital stock of the National Grid Corporation of the Philippines (NGCP).

The NGCP is the private firm operating the country’s transmission system, the mechanism used to distribute electricity from generators to millions of consumers. “It is the core or the heart of the electric power industry,” Santiago said.

“The Philippine Constitution is replete with requirements of nationalism but such a vital and strategic industry such as the electric power industry is infected by a national-security virus,” the senator added.

Her statement comes as the Senate deliberates on Joint Resolution No. 12, which seeks to grant President Aquino emergency powers to address an alleged energy crisis. The House of Representatives approved its version of the measure in December last year.

Privatization of the energy industry

Santiago said that while the measure, which Malacañang certified as urgent in 2014, is dangerously overbroad, it still fails to address flaws in Republic Act No. 9136 or the Electric Industry Reform Act (EPIRA) of 2001.

The EPIRA was enacted to streamline processes in the local power industry by privatizing the assets of the state-run National Power Corporation.

Santiago questioned the privatization of the energy industry under the EPIRA, saying that it contradicts constitutional provisions on ownership of natural resources and Philippine obligations under the international law of human rights.

The senator, considered one of the leading constitutionalists in the country, said that under the Constitution, Article 12, Section 2, “all natural resources, in particular, all forces of potential energy are owned by the State.”

“When the management, control, and ownership of the electric power industry were transferred from the government private monopolies, it is the Filipino power consumer who ultimately suffered increasing costs,” she said.

Santiago also cited Article 27 of the International Covenant on Economic, Social and Cultural Rights, and Article 25 of the International Covenant on Civil and Political Rights, both of which the Philippines is state party. The provisions state:

Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.

The senator said it is also provided in the common provisions, Article 1, Part 1 of both covenants that, “In no case may a people be deprived of its own means of subsistence.”

The senator said the unbelievably high costs of electricity in the country, among the highest in the world, virtually deprive ordinary Filipinos of civilized means of livelihood and a sustainable standard of living.

A resolution cannot amend a law

Santiago cautioned that a mere legislative resolution is not a legitimate means to fix the flaws of a substantial law.

“What is the rationale of Joint Resolution No. 12? Is it to address a potentially serious short-run problem or is it to amend the EPIRA law?  If the former, then it should do that, no more, no less,” Santiago said.

She also said that if the resolution is meant to address an emerging shortage of power in Luzon for the summer months of 2015, it should be simple, easily implementable, and time-bound instead of open-ended.

“The reality is that the government is not a paragon of efficiency and effectiveness. Joint Resolution No. 12, in its present form, might be an example where the government intervention may create its own failure,” the senator said.

“The shortage we are suffering is beyond electric power and go into the crisis of governance,” the senator asked.

Lack of energy efficiency measure

Santiago, former chair of the Senate committee on energy and author of the Biofuels Act and the Renewable Energy Act, also highlighted the joint resolution’s failure to include provisions on the adoption and execution of energy efficiency and conservation measures in both the public and private sectors.

“Energy saved is energy earned. This principle is embodied in the House version of the Joint Resolution, but missing in the Senate version. Why?” the senator asked.

Malampaya link

She also expressed concern over the cost of the Interruptible Load Program (ILP), even as she agreed that it is a quick and easy solution to the potential energy shortage.

Under the ILP, consumers capable of generating their own electricity may deload from the power grid. With an estimated 3,100 megawatts of private gensets in Luzon, up to 1,400 megawatts may be deloaded during peak hours on certain days.

Santiago noted that with the ILP in place, even without energy conservation, energy savings will be greater than the Department of Energy’s maximum projected shortfall of 1,004 megawatts in Week 14 of 2015.

However, Santiago cautioned against tapping the controversial Malampaya Fund, composed of royalties from the Malampaya natural gas fields off Palawan, to cushion the immediate cost of the ILP.

“The Malampaya Fund, a fund designed for developing new sources of energy for the Philippines, should be used frugally and with caution,” the senator said.

Amid the national investigation on the Priority Development Assistance Fund (PDAF) scam, there have been allegations that some P900 million from the Malampaya Fund went to bogus organizations linked to alleged scam mastermind Janet Lim Napoles.

“The total cost of the policy intervention as envisioned in Joint Resolution No. 12 could turn out to be costlier on the part of the Filipino taxpayers. The taxpayers should know the clear and hidden costs of government intervention,” Santiago added.

Aside from the questioning the proposal to dip into the Malampaya Fund, the senator also probed into the cost to be shouldered by consumers, stressing how one of the responsibilities of the NGCP under the resolution is to recover the cost of the ILP.

“What is the meaning of this? Should private genset owners who deloaded from the grid continue to pay NGCP for the use of the grid? Please explain,” Santiago said.

MIRIAM: MAMASAPANO BLOODBATH SHOWED LACK OF SINCERITY & CONFIDENCE OF GOV’T, MILF IN PEACE NEGOTIATIONS

Sen. Miriam Defensor Santiago today said that the bloody clash that killed 44 police commandos in Mamasapano, Maguindanao showed lack of sincerity and confidence of both the Philippine government and the Moro Islamic Liberation Front (MILF) in the ongoing peace negotiations.

Santiago is the chair of the Senate committee on constitutional amendments and revision of codes, which on Monday held its last public hearing on the constitutionality of the proposed Bangsamoro Basic Law (BBL).

The senator, one of the leading constitutionalists in the country, said that incidents of violence, such as the Mamasapano clash, seriously put into question the legitimacy of the peace process and the intentions of both sides in pursuing the peace effort.

“Peacebuilding practices are inherently violent. However, it is not the presence of violent groups that make it violent, but how the parties to the peace process sustain the culture of violence that drives them into conflict,” Santiago said.

“It becomes very difficult for both sides to pursue the peace process when clear violations of it are being committed by both sides,” she added.

While lamenting the death of members of the PNP-Special Action Force (SAF), Santiago demanded that police and Palace officials who were involved in the operation or knew of it explain why they did not coordinate with leaders of the MILF.

Santiago said the requirement of coordination between government armed forces and the MILF was put into place precisely to prevent bloody hostilities such as the Mamasapano clash.

“The government and the MILF are in peace negotiations. This means that they should be partners in ending the conflict in Mindanao. Why then did the government blindside its partner by moving into an MILF-controlled area by the hundreds?” the senator said.

She also urged leaders of the MILF to validate its claim that it has renounced terrorism and links to terrorist groups, including the notorious Jemaah Islamiyah, which is believed to be part of the global al-Qaeda network.

The police operation in the highly volatile Mamasapano town, which involved 392 members of the PNP-SAF, was launched to serve an arrest warrant to suspected terrorists Zulkifli bin Hir and Abdul Basit Usman.

“The MILF has long claimed that it has severed ties with extremist groups, but how do we know that the suspected terrorists the PNP-SAF wanted to arrest were not in the area?” Santiago said.

“These are unpopular questions, but they need to be asked,” the senator added.

She noted that this is not the first time violence marred talks between the Aquino administration and the MILF. In 2011, the government accused the rebel group of violating a ceasefire and killing 19 soldiers in combat in Basilan.

The firefight was believed to have erupted after troops were sent to the MILF-controlled area to capture outlaws including Dan Laksaw Asnawi, an MILF commander wanted for the beheading of 14 Marines in Basilan’s Al-Barka town in 2007.

“This administration needs to formulate a clear strategy in targeting lawless elements while respecting peace talks with the MILF. Officials leading government forces should have learned from past mistakes,” Santiago said.

“At the same time, the MILF should show its sincerity and utmost good faith in its peace talks with the government by sharing its intelligence on terrorists hiding in Mindanao, and working with the government in pursuing these terrorists,” she said.

Santiago has filed Senate Resolution No. 1138, urging a probe on the so-called misencounter, saying that facts of the clash may be relevant to committee deliberations on the proposed BBL, pending in the Senate as Bill No. 2408.

The Senate committee on public order, chaired by Sen. Grace Poe, has scheduled public hearings on the Mamasapano clash on February 9 and 10.

Proponents of the BBL, a measure forwarded by Malacanang as its solution to the Moro uprising in Mindanao, fear that the outburst of violence will derail the measure’s passage into law amid waning support from Congress.

Santiago, for her part, insisted that the latest outburst of violence should not delay Senate hearings on the controversial bill. The senator has been vocal about her view that the establishment of the Bangsamoro entity cannot be done by mere legislation.