News Release

9 October 2007

MIRIAM TO OMBUDSMAN: FILE COURT CASE AGAINST DE VENECIAS

Sen. Miriam Defensor Santiago, chair of the Senate finance subcommittee, in effect told Ombudsman Merceditas Gutierrez to proceed and file the anti-graft cases in the Sandigan court against the De Venecia father and son.

Santiago effectively made the recommendation during her committee hearing on the budget of the Ombudsman yesterday (Tuesday).

Santiago, a former RTC judge, cited the anti-graft law, Section 5, which provides in part that “it shall be unlawful for any relative within the third civil degree of the Speaker of the House of Representatives to intervene, directly or indirectly, in any business, transaction, contract, or application with the government.”

Santiago further quoted Section 6, which provides in part that it is unlawful for any Congress member during his term “to acquire or receive any personal pecuniary interest in any specific business enterprise which will be directly and particularly favored or benefited by any law or resolution authored by him; or to recommend the initiation in Congress of any such law or resolution.”

Santiago said that apparently, the Ombudsman complaint filed by Atty. Roel Pulido constitutes a prima facie case (meaning, evidence good and sufficient on its face, unless contracted by other evidence), which is the threshold standard for a complaint to be entertained by the Ombudsman.

Santiago added that after the Ombudsman studies the complaint, it appears that there will be probable cause (meaning, a reasonable cause because there is more evidence for the case than against it), which in turn is the threshold standard for filing a case with the Sandigan court.

“As a former judge, I am impressed with Atty. Pulido’s complaint. It meets the two standards of prima facie evidence and of probable cause,” Santiago told media.

The complaint alleged that Joey de Venecia applied for and obtained a congressional franchise for his company, but concealed his own ownership.

The Speaker allegedly knew of his son’s interest in two companies, but concealed this information from the House.

“That the Speaker knew of his son’s business interests which were pending in the House is allegedly supported by the Speaker’s own public statement that his son is ‘the father of broadband in the Philippines,’” she said.

Santiago also said that the Speaker had made a public endorsement of his son’s bid for the broadband project.

The senator also cited her own interpellation during the Senate hearing, when transportation secretary Leandro Mendoza testified that it was the Speaker who organized a breakfast meeting between Mendoza and the son in the Speaker’s house.

“During the Senate hearing, the son admitted under oath that the Speaker similarly organized a breakfast meeting between him and Comelec chair Benjamin Abalos to discuss the ZTE deal,” Santiago said.

The senator added that in the Senate hearing, the son admitted that although his name does not appear in the incorporation papers of both companies, he actually owned or controlled them.

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Transcript of Senator Miriam Defensor Santiago’s interview

9 October 2007

On the significance of the testimony of the First Gentleman regarding the NBN-ZTE scandal

No, it is not vital to the prosecution case. Hypothetically speaking, if criminal charges are filed against the administration in connection with the ZTE case, the testimony of the First Gentleman will be very marginal. It is not absolutely necessary. It is not the core of the complaint. In fact the complainant himself admitted in public that the First Gentleman did not ask for any money. He simply allegedly said that De Venecia should stop pursuing the contract, which is pursuant to law. Under the Anti-Graft and Corrupt Practices Act, Section 5, any relative within the third civil degree of the Speaker or any public official cannot directly or indirectly intervene in any contract or transaction with the government. So assuming that the complainant’s statement about the First Gentleman’s alleged statement is true, there is nothing wrong with it because it is all pursuant to the law. He (Joey) is in fact being given good sound legal advice.

On a Kampi executive allegedly bribing legislators to endorse the impeachment complaint against the President

Bribery is one of the hardest cases to prove because you cannot convict on the uncorroborated testimony of one person, even if he is a public official. It always takes two to give a bribe and accept the same bribe. It would be different if there was only an offer of a bribe. But still the quantum of evidence necessary is corroborated testimony. You cannot just testify in court that someone offered you a bribe. That will not stand under the rules of evidence. It will be extremely difficult to prove. In bribes, there are never any receipts or any other documentary or other forms of evidence. So it’s just a person’s word against another person’s. And the presumption of innocence is always in favor of the accused. [But if there are others who claim the same story], then there would be a prima facie case.

If a case will be filed against JDV in the Sandiganbayan…

He should at least, out of a sense of ethics, file a leave of absence. In fact, in ordinary cases, an official who has been charged under the Anti-Graft and Corrupt Practices Act should be administratively suspended while the case is pending. That does not apply to the legislative branch because it only applies to the administrative branch, meaning to say the lower levels of the executive branch. But still, if we heed just legal ethics, he should at least go on temporary and indefinite leave of absence to erase any doubt that in his official position he may try to influence the outcome of the case.

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Transcript of Senator Miriam Defensor Santiago’s interview after the fifth hearing on the JPEPA

8 October 2007

As a constitutional law student, I am personally godsmacked by what the imminent constitutional law expert have said. They were very strong in their view that the JPEPA is unconstitutional.

I have already emphasized that the constitutional issue is a threshold question because in a hypothetical case, even if the committee reports the treaty favorably to the plenary session in the Senate; and the Senate, by a minor miracle, approves it, the opposition, who is very emotional and committed to their cause, will certainly bring a case to the Supreme Court. If the Supreme Court decides that the JPEPA is unconstitutional, it will become unnecessary to discuss all other points. That is the most fundamental priority of all these hearings: is it constitutional or not. That is why I deliberately left the issue of constitutionality for last because it is a very technical issue and will be very difficult for the public to understand.

Among our experts is the preeminent legal scholar of this country and actually the most famous
international law expert for Asia, and therefore in the world, Mr. Florentino Feliciano. His paper
consisting of seventeen pages is categorical. He is citing chapter and verse the Constitution, not just one but several. In my personal view, when Justice Feliciano says something, that is no longer debatable. Even the administration spokesperson on this particular issue conceded that Justice Feliciano’s opinion is simply in the level of the supernatural—when he says something, there is almost nothing that you can say against it.

The same is true for the other expert in international law, former Dean of the UP College of Law and Oxford graduate Dean Merlin Magallona. Virtually, if we go by the objective analysis of these independent experts, the JPEPA is dead. JPEPA is unconstitutional in several constitutional grounds, and then they went on to explain which ones of these provisions are, and why they adversely impact the validity of the JPEPA.

But as I’ve said, we are not finished, in fact there will be an additional hearing to be presided by either Senator Roxas or Senator Angara. I have to keep an open mind until after that last hearing and until after all the parties directed should have submitted their written memoranda by October 23. But as a lawyer, for me the preeminent question is constitutionality. Once you have a valid and substantial constitutional question, then there is no point in discussing the JPEPA. It is the ultimate first priority. Since our objective experts who were testifying or having their papers read were categorical in their findings.

The power of the Senate is confined merely to ratification or rejection. We cannot possibly amend the treaty. What we can do is send back the treaty to the executive branch for renegotiation for amendment, addition, or exclusion as we shall see fit in the Senate floor. But of course, they will take my recommendation as chair of the committee into full significance.

If that is the case, I will first have to get a majority vote of my own committee. But notice there
were three administration senators present, but we were unanimous at least in this hearing that there is no question that JPEPA is unconstitutional.

But as I’ve said, I will struggle very hard against my own instincts to try and keep an open mind, because after all, there will be one more hearing, and then I still have to wait for the memoranda from all parties.

On the JPEPA provisions claimed by experts to be unconstitutional

The Philippine Constitution is one of the few in the world that has a nationality provision. In other words, we consider that, as a matter of Filipino nationalism, certain areas of business, trade and industry should be reserved only for Filipino citizens or corporations that has at least a majority or controlling share is owned by Filipinos. According to these experts, the JPEPA, if implemented, will violate these nationality provisions. Under the treaty, only Japanese entities may invest in the Philippines. However, there is a practice in international trade law where, to get around that requirement, they can form a corporation which would be the “grandfather,” and that corporation can form another one, and so on, until it reaches a point where the registered Japanese corporation is no longer controlled by the Japanese but might be controlled by Americans, Europeans or whoever. There is actually a backchannel or loophole in that provision, that is why it might be unconstitutional on that ground.

In the 1993 Oposa v. Factoran, the Supreme Court said that all activities on the part of the government must apply to the constitutional provision of protection of the environment on a balanced ecology. And so, it is likely that that provision will be applied as well, and that would be the second ground for unconstitutionality. That is the problem: it is not only one ground, but several. If you don’t get it declared in one ground or one provision, there are still other provisions you have to contend with.

That is why I am very worried about the fate of JPEPA even on committee level only. But in plenary level, we are already disadvantaged because the numerical majority belongs to the opposition, and this series of hearings provided the opposition senators with very strong ammunition. I for one confess that I will not be able to defend the constitutionality of the JPEPA
on the Senate floor.

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Transcript of Senator Miriam Defensor Santiago’s interview

5 October 2007

On Administrative Order 197

I have not yet received a copy (but) I can immediately notice that there is a constitutional issue involved. This administrative order might be on a collision course with the constitutional provision of the right of the public to know. It might be declared unconstitutional by the Supreme Court on that grounds, so I am already worried as a constitutionalist.

I believe that it could be adequately covered by the doctrine of executive privilege which is already have been upheld by the Supreme Court in that case of Senate v. Ermita. There, the Supreme Court invalidated the Executive Order No. 464 but at the same time it said that the doctrine of executive privilege, which is not a constitutional provision, is applicable but under certain conditions. It even made a special mention of diplomatic secrets and military secrets. In those two cases, the doctrine of executive privilege is mostly applied by the Supreme Court, that is to say it takes the word of the president; but the Office of the President must give certain specific details to explain why it is a secret. It cannot just invoke executive privilege in a general way. It must give enough details without giving away the secret. The issue of constitutionality will hinge on how the administrative order is worded.

In the Senate v. Ermita case, the Supreme Court, in effect, invalidated the language employed by the executive order—it was just too broad, it was not properly invoked, etc. So again, this might be the observation of the court in the hypothetical case that someone brings a case to question the constitutionality of the administrative order; and definitely that would be the threshold issue for any Senate committee to its chairperson who wishes to probe into military activities. Automatically, there would be an invocation of this administrative order, and then at that point the Senate would invoke the Supreme Court decision again, as in the case of Senate v. Ermita.

On the Comelec budget

The Office of the President cut down the Comelec proposed budget by nearly half, from P 8B to only P 4B. Under the constitution, the Senate Finance Committee has no longer jurisdiction to increase its budget because there is a constitutional prohibition.

The important fact about the Comelec is that it spends more or less P 5B whenever national and local elections are held together. So that’s the cost to the Filipino. Every time there is an election in both the local and national levels, immediately that’s P 5B. The Comelec always asks for a budget in the billions for voter validation, but why do we have to spend P 1.5B just to clean up the voters’ list. We’ve been engaged in this project for maybe decades. Maybe we should look for an alternative option for voter validation at lesser cost but with equal effectivity because I don’t really see very much effect on election results as announced, there are always cries of electoral fraud, and one of these frauds are fake voters’ participation or falsification of election document. This is just too big an expense.

On the CHR budget

I gave them instructions, as a constitutionalist, that there should be equal protection between civilian victims and military victims since the public is under the impression that only civilian victims are protected by the commission. There has to be emphasis that the military and uniformed people are also entitled to the protection of the Commission on Human Rights. For example, if they are treated by the combatants against the government in a manner that would be violating the international law on conflicts or the international law on war.

On the ARMM budget

This area, the ARMM, includes five provinces which are always at the bottom of the ranking for social development and for economic development, and yet ARMM for the past many years has always had one of the biggest budgets in the General Appropriations Act. Its budget is far bigger than the budget of the entire Congress of the Philippines, bigger than that of the Office of the President, bigger than that of maybe a dozen executive departments, and yet it remains at the
bottom of the list. So where is all that money going? We would like to know.

Plus, for personal services, the general rule of thumb is that it cannot exceed thirty percent of the total budget. But for the ARMM, it is more than seventy percent! What are all these people doing? I think that they have to produce more results to justify such a huge huge budget.

[ARMM proposed budget for 2008: P8.614B; 2007: P8.292B; P8.292B]

Transcript of Senator Miriam Defensor Santiago’s media interview after the fourth JPEPA hearing

4 October 2007

I am no longer going to give my scorecards round by round because there are only three rounds left, meaning to say the hearing today, the hearing on Monday, and then the written memoranda. So if I continue with my scorecards, you might draw the conclusion that I have prejudged the case before the written memoranda has been submitted because the deadline is October 23.

But I will say that the whole problem all along is that the administration officials on the whole have been merely giving the committee narrative statements, that is to say merely summarizing the treaty for us. They are arguing on a theoretical level on the basis of treaty provisions. The opposition is citing actual experience and empirical evidence. So the two panels presented issues that have never been joined. The issues have never been joined because there is a big gap between theory and reality. Notice that the senators in the committee where virtually dismayed when even the people who should benefit the most—the nurses, the caregivers, the migrant workers—have issued statements against the treaty when normally one would expect that they would support it. I will say at least that the committee members are flabbergasted, as noted even by the administration public officials.

I consider, as a lawyer, that Monday’s hearing will be the most important because it will deal not only on the movement of goods and services but also, and most significantly with the constitutional issues. We have invited constitutional law experts including, most specially, former Supreme Court Justice Florentino Feliciano, who is the country’s most and widely and internationally recognized expert in international law, and having been a Justice, is also an expert in constitutional law; plus the former Dean of the UP College of Law, Merlin Magallona, who is also an expert in international law. You will remember that Justice Feliciano was the brilliant Justice who wrote the concurring opinion in the 1993 case of Oposa v. Factoran, where the Supreme Court for the first time, not only in our country but for the whole world, applied a constitutional provision on a balanced and healthy ecology. So I am very worried because the fundamental issue here as a lawyer is constitutionality.

Suppose the Senate concurs with the treaty, the opposition might, hypothetically, bring a case to the Supreme Court. And suppose we lose it on constitutional grounds. That’s how important the
constitutional issue is. It is the most basic of all issues. If it is unconstitutional, then there is no
point in debating all the other issues. And I have to bear in mind the decision in Oposa v. Factoran, which is cited in all international environmental law text and casebooks because that’s the first time a national Supreme Court upheld a constitutional provision on health and ecology. If we follow that ruling, it is possible that the Senate and the Office of the President will lose the case. That is why I am very hopeful and interested in what the brilliant Justice Feliciano, a former judge of the Arbitral Tribunal of the WTO, and Dean Magallona would have to say.

Can the treaty be renegotiated?

Definitely. We can send it back to the President for renegotiation. That is a definite option, but, in effect, it would mean a rejection of the executive branch. For all you know maybe Japan would refuse to renegotiate it on that basis. Also, there are provisions that when the treaty has become executory, then the parties may continue to renegotiate. But I’m sure the opposition may say “Why are we going to apply that treaty now? Why is there such a big rush? Let’s wait for the renegotiation first.” Renegotiation is a diplomatic way of saying “we reject it in its present form.”

The administration officials never gave us a balanced analysis on what concessions will we surrender and what were the concessions in return made by Japan. They just keep on summarizing the JPEPA for the members, and I’ve already read it. I don’t need someone to summarize it for me.

I am looking at previous Senate practice because it is not mentioned in our Senate Rules. But if I’m not allowed to sit on it, that is to say just send it to the archives, then I will be compelled to issue a report recommending renegotiation.

I just have to keep an open mind until the written memoranda are submitted because I want to summarize the reasons of each side for the entire committee, for all the senators who were not present.

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Privilege Speech

1 October 2007

I WAS HIT ON A PERSONAL LEVEL

In the accepted rules of debate, it is considered unfair and unethical to argue on the basis of personalities. The debater is only ever required to limit himself to the merits of the issue. Under the principle of sub judice, when a matter is still pending before a judge, reporters may only report the facts, but may not even comment on the merits of the case, much less on the personalities involved.

Last Sunday, I was subjected to a personal attack by an alleged contributor, which was carried on the front page of a daily newspaper. There were several senators attacked, and there were some three senators who were praised. But in my case, it is very obvious that the writer was just engaging in character assassination. He did not refute my arguments, but concentrated on my personality, and on my personal characteristics. I was hit on a personal level, which is unethical, unfair, and implies that he is a hired gun, shooting me down for money. This is beneath despicable.

There are dead giveaways to the so-called contributor’s poison piece, which has to be part of a sustained and corrupt media blitz by a certain political group against the ZTE loan agreement, presumably so that the group could get its hands on the P1.5 billion kickback.

I suspect that this is a political group behind Jose de Venecia III, rather than Comelec Chair Benjamin Abalos. De Venecia has taken an aggressive media position, while Abalos has been on the defensive. Both their allegations were substantially diminished by the point I raised during the ZTE hearing – that often, in trial, both sides could be telling half-lies and half-truths. This was also the point made by former Supreme Court Justice Isagani Cruz in his own opinion column in the very same issue of the same newspaper. Perhaps De Venecia felt stung, although in effect I said that this point could be true for all sides in the controversy.

Maybe this group could be temporarily allied with the political opposition. Maybe this political group is also partly funded by private service providers, who would lose billions in income, if the government stopped hiring their services, and instead government ran its own national broadband. Or maybe this political group is also partly funded by the “Oust Gloria” group. Maybe it is all of the above.

Here are the obvious detective clues:

Telltale Mark No. 1. The writer was expressing a personal opinion, but somehow it was sneaked into the Sunday front page news. This is a common tactic of black propaganda tacticians, so that the victim cannot issue a rebuttal on the same day, because offices are closed. Its proper place should have been in the opinion-editorial or op-ed page. In effect, the detractor was editorializing in a news page. Sometimes such editorials are carried on the front page, but only when they analyze issues, not disguised personal attacks on the personalities involved in the issue.

Telltale Mark No. 2. In maligning me, the critic used at least three negative and emotionally-laden adjectives in describing my personality. He was not interested in evaluating the merits of my argument, but in holding me up to ridicule, mocking my voice, my face, and my expression. Can we no longer make allowances for righteous indignation? That was a personalistic attack, which he knows full well is prohibited by the journalistic code of ethics.

Telltale Mark No. 3. The critic ended his poison piece by singing sycophantic praise for three senators, who just happened to be opposition senators who are against the ZTE loan, and are rumored to be presidential candidates. I grant that the three senators concerned may have had no connection with the media blitz, but may only have been used as a camouflage by the political group bent on a media scorched-earth campaign against those opposed to its kickbacks.

Telltale Mark No. 4. If the critic just wanted to evaluate the performance of senators during the hearing, then he should have given the plus and minus of each. Instead, he just gave a minus to all his adversaries, and then toward the end, where it could be conveniently inconspicuous, he gave a plus to all his protégés, thus betraying his political bias.

Telltale Mark No. 5. The proceedings to which he referred were widely televised, in some cases live, both here and in Filipino communities abroad. Did he hit me personally, because he could not answer my arguments, and was reduced to name-calling? Is an unseen hand paying for the media blitz, trying desperately to distract the public from the point I raised as a former RTC judge – that both sides may be telling half-lies and half-truths?

In conclusion, I call attention that when the Supreme Court is collectively or singly attacked by the media on a personal level, or when a pending case is publicly discussed on the merits, as a matter of practice under the principle of sub judice, the court orders the writer to show cause why he should not be held in contempt. Similarly, I respectfully propose to the Committee on Rules that we should amend our Senate Rules Governing Inquiries in Aid of Legislation. When Senate proceedings are still pending, reports and alleged observations should be limited to the facts and may even include the merits of the matter. Thus, the Senate would be adopting a more liberal rule than the sub judice principle of the judicial branch.

But if the attack is personal, the reporter should be ordered to show cause why he should not be cited for contempt of the Senate. Under Senate Rules, even a senator himself is not allowed to launch a personal attack against another senator.

I have been in national politics since I ran for president in 1992, or for over 15 years now. I was an RTC judge, and thus for some five years, applied and practiced the rules of evidence everyday. I am sick to my eyeballs of these corrupt and expensive media campaigns, always trying to destroy me personally, particularly when I have just scored a point that meets with approval by the general public.

I challenge the shadowy faces behind this corrupt media blitz. Come on you hypocrites, stop being sneaky. Be men, come out of the bushes, and reveal yourselves. Since you have chosen to engage in character assassination, let us have a showdown at the OK Corral – in full view of the TV public. I am sure my traitorous and hidden detractors will make asses of themselves.

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Transcript of the Senator Miriam Defensor Santiago’s interview

1 October 2007

On COMELEC Chair Benjamin Abalos’s resignation

Chairman Abalos resigned because of public clamor and out of a sense of delicadeza. I genuinely sympathize with him because it is Christian to be compassionate with someone who is overtaken by tragedy… I feel fully for him and his family, because as a Christian, I cannot possibly find enjoyment in the calamities of other people.

The result is that Congress will no longer have jurisdiction to impeach him. But, even his resignation will not stop the filing of criminal charges against him in the Ombudsman, possibly for the violation of the Anti-Graft and Corrupt Practices Act. If that is the case, then I don’t want to prejudge.

If the Ombudsman decides in the affirmative, that there is prima facie evidence, then they can elevate the case to the Sandiganbayan for trial. The mere fact that the accused is no longer in government, or his retirement or resignation, will not stop the proceedings in the Ombudsman and the Sandiganbayan.

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