MIRIAM SEEKS COMELEC RULE ON POLL ADS

Sen. Miriam Defensor Santiago filed a 19-paged petition last Saturday (June 21) with the Comelec to declare as an illegal election offense, any political advertising in the form of commercial and other endorsements, until the official campaign period starts in 2010.

“It is a mockery of the law to start campaigning two years before the 2010 elections. The Election Code bans any election campaign outside the campaign period,” the senator said.

Santiago, a constitutional law expert, said politicians conducting premature campaigns under the pretense of commercial endorsements violate the equal protection clause of the Constitution.

“Until the Comelec makes a categorical interpretation of the Election Code, the rich and powerful candidate will enjoy an unfair advantage over the poor candidates. This is not allowed under the equal protection clause,” she said.

Santiago said that the Supreme Court condemned premature campaigns in the 2004 case of Chavez v. Comelec, and the 2006 case of Lanot v. Comelec.

“In both cases, although it denounced premature campaigns, the Supreme Court stopped short of declaring it a criminal offense and ordering the prosecution of violators, because there is a conflict in the law,” Santiago said.

Santiago pointed out that under the Election Code Sec. 79, the ban on premature campaign applies only to a person who has filed his certificate of candidacy.

The senator added that by contrast, Sec. 80 imposes the ban on premature campaign “on any person, whether a voter or a candidate.”

“The way out of this dilemma is to apply the rule of statutory construction that Comelec should follow the context, intent, and policy of the law, and should interpret it to avoid an absurdity.”

Santiago said that because the Comelec has failed to rule on the issue, under the primary-jurisdiction doctrine, it is the duty of the Comelec to ensure equality among candidates by declaring that a premature campaign, which is considered an election offense, should be prohibited even if the person has not yet filed his certificate of candidacy.

Santiago’s lengthy petition filed with the Comelec and fully explaining at least seven legal arguments, indicates that if she does not obtain a categorical ruling from the Comelec, she will elevate her petition on certiorari to the Supreme Court.

In her petition, Santiago also asked the Comelec to issue a temporary restraining order and a preliminary injunction against politicians, billboard firms, and TV stations, allegedly engaged in premature campaigns.

The Santiago petition is a class suit, meaning that there are no other petitioners and there are no named respondents, because both parties are so numerous that it is impractical to include them all, and the subject of the controversy is of common interest to the public.

After her petition was filed Saturday, Santiago left for New York to join President Arroyo at a dinner reception for UN ambassadors.

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MIRIAM DONATES PORK BARREL FOR PGH EQUIPMENTS

Sen. Miriam Defensor Santiago turned over P12 million worth of medical equipment sourced from her priority development assistance fund (PDAF) to the Philippine General Hospital (PGH) in a ceremony yesterday . 

Last year, Senator Santiago dared other senators to donate their annual PDAF, also known as pork barrel funds, to “kickback-free” projects, such as projects for the PGH, which is the country’s biggest charity hospital, and to the University of the Philippines (UP), the country’s premier state university. 

She also reiterated her call to other senators to donate to “clean” projects, instead of refusing outright their pork barrel.

“Mere renunciation of pork barrel does not constitute a public service. It needs follow-up to make sure that the money refused goes to worthwhile social services. Instead of seeking publicity for giving up pork barrel, senators should allocate their pork barrel to ‘clean’ projects where it is impossible to get a kickback, such as the importation of expensive medical machines to be made available free to the poor,” she said.

The medical equipment, consisting of endoscopic ultrasound machines and endoscopy systems, will be used for the improvement of patient services and the teaching-learning situations in UP-PGH’s gastroenteronomy section. 

Santiago has consistently been one of PGH’s top donors of medical equipment since 2005. The same year, she donated endoscopy systems to the PGH, while last year, she sponsored the construction of infliction control rooms, medical students’ call rooms, aux rooms and medical gas installation wards.

In 2005, she launched the “one senator, one PGH machine", a personal campaign intended to solicit pledges from other senators to donate to the PGH. Although the campaign has raised curiosity and interest among the senators, Santiago lamented that no senator has followed up on his or her pledge. 

UP President Ermelinda Roman, UP Manila Chancellor Ramon Arcadio, and PGH Director Carmelo Alfiler were also present in the turnover ceremony.

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Transcript of Senator Miriam Defensor Santiago ’s interview

After the Senate Committee on Energy Hearing With The Respresentatives from the Various Foreign Chambers of Commerce

The Joint Foreign Chambers (JFC) apologized to the Philippine Senate for that letter they sent Pres. Arroyo after Sen. Enrile and I, plus Sen. Arroyo, took turns chastising them for breaking protocol. If they have anything to say about pending legislation, they should say it to the Senate. They should not write the President because it implies that the President could order a co-equal branch of government to do what she wants. And they should not write such a letter and make it public when the Senate is in the middle of debating the amended Epira law which has already took several years. The time to have expressed those sentiments should have been during the committee hearings when the Senate hears all kinds of opinions for and against.

The senators resented the letter for we were expected to lay aside all the things we have been doing on the amended Epira law and give way to the demand of foreign investors to stop amending our own law. But they issued an apology, and in my capacity as chair of the Committee on Energy, the apology is accepted.

However, beyond that, we wanted to know ano ba talaga ang reklamo ninyo na amendahin ang Epira. Sapagkat ang layunin nun ay ibaba ang presyo ng kuryente. Pitong taon na, hindi pa rin bumababa ang presyo ng kuryente kaya tinitignan naming sa Senado kung ano ang magagwa naming hakbang para bumaba ang presyo ng kuryente. Sabi nila (ng JFC) basta wag daw munang amendahin ang Epira.

Pero paulit-ulit naming tinatanong ng mga senador kung ano ba talaga ang ayaw nila jan. Pero ang sagot nila lagi ay malapit ng maprivatize ang Napocor sa katapusang nitong taon kaya’t bakit pa kelangang baguhin ang mga regulasyon. Tinanong sila kung nabasa nila, kasi 60 pages ang amended Epira, pero mukhang hindi. Ang sagot nila ay wala dahil ang mga technical consultants nila ay wala dito.

In my view, they are afraid that the amended Epira will visit or discuss all over again the very notorious IPP contracts where the foreigners are involved. The IPPs are independent power producers; the main power producer in our country is the government through the Napocor. But because of the brownout, Ramos signed contracts with the IPPs at exorbitant costs; and still, we are operating under that legacy. That’s one of the reasons why the price of electricity is very very high.

Under an IPP contract, there is no risk that the investor takes. We are already paying it the capacity service fee and operation and maintenance fee so how come may take-or-pay pa. Binabayaran natin lahat ng ginagamit nila at paggawa nila ng kuryente e bakit pag hindi nating gagamtin ang kuryente pababayarin pa rin tayo? Hindi tama yun. That’s why the public are up in arms against the IPP contracts. I suspect that the evasiveness of the foreign investors today indicate that they do not want to reveal the real reason, which is they don’t want the amended Epira to even mention the IPP contracts.

Nakakasuspetsa talaga kung ano ang angulo nito. Ang angulo natin ay ipagtanggol natin ang ating mga consumer na Pilipino. Ang angulo nila ay gumawa sila ng tubo. Wala namang masama dun kaya natin kinumbida sila e, pero wag naman sana sa pamamagitan nitong mga IPP.

There’s no provision of IPPs on the amended Epira. I think that they are just speculating on fear that maybe someone will stand up during the debates and propose such a position.

Can Congress remove the onerous provision on the take-or-pay?

That’s already part of the amended Epira. That’s what they are afraid of.

With respect to existing contracts we will respect that until the expiration date of that particular contract. We are talking of future IPP contracts.

I think their apology is only an indication that the letter was precipitate, was impulsive; it was an immediate reflex of people who are used to dictating to developing countries our own economic policies. Many of our lawmakers today have been schooled in their very universities and colleges so we’re just reflecting what we’ve learned. Now that we are an independent nation, why is it being held against us that we are able to think for ourselves?

On the conflict of interest that some of the members of the JFC are also partners of local power producers

Yes, they themselves admit it. I said, how can you be so sure that we should not patch Epira, because according to you, power generation will soon be subjected to open access—that is, we can now buy our electricity not only from Napocor but other IPPs. But how can you be so sure that there will be enough IPPs since the law today requires that there should be 70% privatization of Napocor before we can allow open access, before we can allow any power producer to present itself in the market. There are no foreign bidders in Napocor, there are only local bidders and then immediately one of them said, “Ah, we have a big investment in First Gen.” So you see, the foreigners are interested in making profits out of the IPPs, that is the real reason that’s why we’re going around in circles.

They will be called back on the hearings of the anti-trust law. Anti-trust means prevention in monopolies of trade. I am very happy at least the foreigners have been given forewarning at least on the part of the Senate not to dictate our economic policies, not to raise unfounded fears and not to speak in generalities. If only out of courtesy, they should specify what exactly it is that is hurting them in the proposed amended Epira.

Tama lang ba na pagalitan ang mga opisyal ng JFC?

E kung may rason naman kasi. Kung hindi natin itataas ang boses natin sa dayuhan maski mali ang ginagawa mamaya aapakan nalang nila tayo. I think yun yung punto ni Sen. Enrile. He is very capable of exploding, just like me.

They (representatives of the foreign chambers of commers) were very cooperative except that their answers were evasive, they were non-responsive. You cannot blame a witness for trying to get out of a sticky situation.

Can we afford the consequences of displaying our pride?

This is not just mere pride; this is really an assertion of independence from foreigners. We all want you to come here and invest in our country, but please respect our legal system. That’s the point we are trying to make.

Investors watching the hearing will understand that the Senate is responsive to the needs of the times. We cannot calcify into rock the old Epira law because they are more comfortable with it. We are not concerned with the welfare of foreign investors in that way. Our highest concern is the welfare of the Filipino consumer. If those two welfares coincide then we are very happy. If not, then we’ll simply prioritize lower priced power cost.

Can President Arroyo use her emergency powers if the present economic crisis worsens?

The economic crisis is out of our hands, it is being caused by the higher price of oil and by the international food shortage. There is nothing we can do. We are not an isolated island where all of these things are just happening to us. These are world wide afflictions on the entire poor community of the world. If that is the case, upon proper findings, the president, may of course properly exercise her emergency powers but she should adhere strictly to the conditions of the constitution and the Senate will be the first to protest if she does it prematurely.

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MIRIAM HITS FOREIGN CHAMBERS ON IPPs

Sen. Miriam Defensor Santiago, chair of the Senate energy committee, said that the Joint Foreign Chambers of the Philippines (JFC) oppose amending Epira because they do not want a review of the IPP contracts.

Epira is the Electric Power Industry Reform Act, while IPP is an industry power producer.

“The foreign chambers have a conflict of interest. They want to preserve Epira, but at the same time they do not want a review of the IPP contracts, apparently because they want to protect their economic interests and investment returns,” Santiago said.

Santiago said that under the IPP law, any proposed electric generating facility should prove that it can generate electric energy cheaper than can be generated by Napocor (NPC), by accessing lower cost of capital, cheaper plant investment, and locally manufactured equipment.

She said that according to a study, in all types of power plants, the IPP costs are higher than NPC generation costs.

“Napocor IPP contracts are like the BOT contracts. They are not standard PPAs which take some levels of business risks,” Santiago said.

BOT stands for build-operate-transfer, while PPA stands for purchase power agreement.

“The IPPs make windfall profits at the expense of consumers. The IPP contracts are unconscionable because the IPPs are already paid for capacity, and for operation and maintenance. Yet at the same time they have a take-over-pay level for variable energy conversion fees. The take-or-pay provisions are excessive,” the senator said.

Santiago said that IPPs follow a fee structure of dollars per kilowatt hour, where the standard procedure is based on pesos per kilowatt hour.

Santiago listed the alleged inconsistencies in the JFC letter to Pres. Arroyo, as follows:

• JFC objects to Epira amendment, but does not particularly explain why.
• JFC contradicts itself because it rejects Epira amendment, but at the same time supports earlier open access. To achieve earlier open access, Epira has to be amended.
  
• JPC contradicts itself by calling for transparent and competitive electricity industry market and yet it rejects at the same time a review of IPP contracts. This is also conflict of interest on the part of JFC.
  
• JFC makes a bare statement that amending Epira will negatively impact the power industry market, without specifying the ways in which negative impact would result.

Santiago said that JFC issued the statement on the presumption that by the end of 2008, NPC will complete 70% privatization.

“What is the basis for this presumption? Will JFC members participate in bids for the JPC assets? At present, no foreign companies are involved in bidding for NPC assets. The only active bidders are local investors,” the senator said.

Santiago said virtually the entire Senate rose to criticize the recent JPC letter to Pres. Arroyo opposing Epira amendment, because the letter should have been addressed to the Congress.

“Lawmaking is the sole prerogative of Congress,” Santiago said.

Santiago said that the senators did not like the letter, because it appears to be an attempt by foreigners to meddle in Philippine policy making.

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Transcript Of Senator Miriam Defensor Santiago ’s Interview

On The House Bill Providing For Snap Election

That is unconstitutional. The term of the president is six years unless he or she is impeached. Impeachment is the sole process by which you can remove an elected president during his or her term of office.

If you wish to remove the president during her term of office on another ground, you will be adding to the grounds provided by the constitution; therefore, you are either committing an unconstitutional act by passing that kind of law and surely that will be declared unconstitutional by the Supreme Court. Or, you first have to campaign to convert the Congress into a constituent assembly so that it can amend the constitution. But in the form of a law, you cannot change the constitutional provision on removal of a sitting president.

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MIRIAM INVITES FOREIGN CHAMBERS OF COMMERCE TO SENATE ENERGY HEARING

Senator Miriam Defensor Santiago called for a Senate Committee on Energy hearing for Friday (June 6) following senators’ collective condemnation of the statement from foreign chambers of commerce regarding the country’s energy policy.

In a letter last May 27, the Joint Foreign Chambers (JFC) urged President Gloria Macapagal Arroyo not to renegotiate the government contracts with independent power producers (IPPs) nor amend the Electric Power Industry Reform Act (Epira). This drew the ire of senators, saying that the foreign business group is meddling with lawmakers’ efforts to reduce power rates.

Santiago said that it is a question of what kind of amendment the JFC doesn’t want, since Congress is only changing certain provisions of the Epira and not its entirety.

“The only problem with the IPPs is that they have a take-or-pay provision which is very onerous to the Filipino taxpayer. The foreigners can source their electricity from IPPs with take-or-pay provisions but it should not be a standard clause in our contracts of the government and the IPPs,” the senator said.

Santiago invited presidents of various foreign business groups to the hearing, among them Rick Santos of the American Chamber of Commerce of the Philippines, Richard Barclay of the Australian-New Zealand Chamber of Commerce of the Philippines, Stewart Hall of the Canadian Chamber of Commerce of the Philippines, Hubert D’Aboville of the European Chamber of Commerce of the Philippines, Toshifumi Inami of the Japanese Chamber of Commerce of the Philippines, Jae Jang of the Korean Chamber of Commerce of the Philippines, and Shameem Qurashi of the Philippine Association of Multinational Companies Regional Headquarters, Inc.

Also invited to the hearing are Energy Secretary Angelo Reyes, National Power Corporation President Cyril C. Del Callar, Power Sector Assets & Liabilities Management Corporation President Jose C. Ibazeta, Energy Regulatory Commission Chair Rodolfo Albano Jr., and Ernesto Pantangco, president of the Philippine Independent Power Producers Association.

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MIRIAM WARNS RP WATERS IN PERIL

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, warned “alarmists in Congress” to stop pushing for a new baseline bill without expert advice, because the Philippines “would virtually lose sovereignty over our internal waters.”

“These alarmists will unwittingly turn over our internal waters to foreigners,” said Santiago, reacting to weekend news that some senators want a new baseline bill to be passed, without consulting international law experts.

Under the Philippine Constitution, Article 1, the internal waters are “the waters around, between, and connecting the islands of the archipelago.”

Santiago said that the move to pass immediately the baseline bill would be “a case of the blind leading the blind,” because RP internal waters would be transformed into “archipelagic waters” under the UN Convention on the Law of the Sea (Unclos).

She said that the “archipelagic waters” concept would allow foreigners to enjoy many rights inside Philippine territory such as: right of archipelagic sea lanes passage; right of innocent passage; traditional fishing rights by neighboring states; and right to repair or replace existing submarine cables laid by foreign states.

“Alarmists should understand that the right of innocent passage given to foreign vessels include the right of navigation and overflight, not only for foreign commercial vessels, but also for foreign military vessels and aircraft. Can we handle that?” Santiago said.

Santiago, also a constitutional law expert, said that Unclos conflicts with the Philippine Constitution, not only because of the archipelagic waters concept, but also because Unclos would severely limit Philippine sovereignty over the 200-mile exclusive economic zone (EEZ).

The Constitution, Article 12 Sec. 2 Paragraph 2 provides: “The state shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.”

Santaigo said that under Unclos, this constitutional provision will become invalid, because Unclos provides that when RP does not have the capacity to harvest the entire allowable catch, RP should “give other states access to the surplus of the allowable catch.”

“In other words, instead of reserving the EEZ exclusively to Filipinos, RP has to allow foreigners to fish in the EEZ. Thus, the Supreme Court will certainly declare Unclos as unconstitutional. And then the foreign state may sue RP for violation of Unclos before a foreign tribunal,” said Santiago, the Senate’s recognized expert in international law.

The baseline of the Philippine archipelago consists of straight lines connecting the outermost points of the outermost islands.

The baseline is the starting point for computing the area of the 12-mile territorial sea, 24-mile contiguous zone, 200-mile exclusive economic zone, and the 200-mile continental shelf.

The Philippines needs a new baseline bill, in order to compute the area of the extended continental shelf (ECS), which can be up to 350 miles.

The deadline for filing a claim for ECS with the United Nations is 13 May 2009.

“Since we have one year to meet the deadline, why do we need to rush the baseline bill? First, we should create a Congressional Commission on National Territory, so that we can use as background material the report and recommendations of international law experts,” Santiago said.

Santiago said it was “grave error” for certain quarters to push for a baseline bill first, and then to create the commission later.

“That is putting the cart before the horse. International law is radically different from domestic law. There are only two international law experts in the Philippines. They are Justice Florentino Feliciano and Dean Merlin Magallona. All others are self-proclaimed,” said Santiago, herself listed as an international law expert by the United Nations.

Santiago said that experts have to decide whether the Philippines is a party to the Unclos.

The senator said that when during martial law the Philippines ratified the Unclos, it made an impermissible reservation to fix the limits of the Philippine territorial sea under the 1898 Paris Treaty.

Under the Vienna Convention, Art. 19, when a treaty prohibits any reservation, and a state ratifies the treaty but makes an impermissible reservation, that state is not a valid party to the treaty.

“Before we rush to a baseline bill, lawmakers should first have the benefit of advice from international law experts. Otherwise, to a great extent, we lose our sovereignty over our own internal waters. That would be anomalous, because our archipelago will become an open maritime highway. Filipino fishermen will have to compete in our own waters with foreign fishermen,” she said.

Santiago said that if Congress votes to defer the creation of the congressional commission and to pass a baseline bill first, she would refuse to defend the baseline bill.

“I cannot defend a bill that will turn over our internal waters to foreigners, and run the high risk of being declared as unconstitutional by the Supreme Court,” said Santiago, who is also a constitutional law expert.

Santiago said the Senate Rules prohibits senators who voted in favor of a committee report, to change their minds and oppose the bill in plenary session.

The committee report recommending that the commission should first be created and its report submitted, before the Senate discusses the new baseline bill, was signed by 14 senators.

“The point that the order of priority should be reversed has become moot and academic, because this particular committee report to create the commission has already been passed by a majority of senators,” Santiago said.

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