Transcript of Senator Miriam Defensor Santiago’s Interview

28 November 2007

On the UN findings on the extrajudicial killings in the country

It is both good news and bad news. The bad news is that it says that it does not believe the Armed Forces of the Philippines ’ explanation about extrajudicial killings and people who have disappeared as part of the purge of the Communist Party. Instead, it appears, according to the report, that those people who have died or disappeared have been victims of military abuses.
The good news is that the report does not say either that it is official policy of the Arroyo administration to liquidate leading members of the extreme left. After all, the Communist Party and the NPA have been declared terrorists by other countries. In that sense, the report is even-handed. One thing that we can consider as a plus for the Arroyo administration is that it invited Mr. Alston to come here. He could not have come, under UN rules, unless an invitation has been extended by the administration. This is evidence of the good faith of the Arroyo administration.
What will happen here is that in his capacity as a fact-finder, he will submit this report. In fact, his report is just the final draft of his preliminary draft since the procedure is that the rapporteur must first issue a preliminary draft for comment by the host state before he can draft the final form. This is the final form of the report, but he will now submit it to the Human Rights Council in the UN, which will take it up and decide 1) whether the findings and facts are judicious, meaning if they are reliable, and 2) what action should be taken or recommended by the Council to the General Assembly with respect to the Philippines.

Can it be reversed?

Yes, because it is yet not binding to the Human Rights Council. He is merely an agent or a subordinate of the Council. He is bound to submit it for the Council’s assessment and for their action, whatever it might be.

What can the government do about it?

The government will have to make a more determined effort to educate the rank and file of our soldiers that violence should not be used as a measure for counterinsurgency unless it is employed in self-defense. It cannot be a strategy or a tactic to kill people anonymously to put the fear of the military in them. It is not allowed by the constitution and international law.

There are many ways of issuing instructions to soldiers. You can either talk verbally to them, or you can give them instructions in the form of body language or discreet implications employed n verbal instructions. If the administration makes it crystal clear that it will not tolerate these practices, that should filter down to the ordinary soldier.

The rapporteurs of the United Nations are among the most qualified in their fields of work. The usually come from the academe and have no political power.
In the whole, I find the report to be acceptable.

On the government’s efforts to help the OFW in death row in Kuwait

The case emphasizes the importance of a transfer of sentenced persons treaty, which we just have concurred with respect to Spain . We already have concurred such a treaty with respect to Hong Kong and Thailand , and we hope to concur in the very near future with Canada and Cuba , but most importantly with the Middle Eastern states.

There is nothing we can do on a legal level when the court of another country sentences a
Filipino for crimes as defined in that country. This is only an appeal from one head of state to another. There is no legal force. It may have some legal force. But the best thing to do is to work for a TSP treaty if we cannot get executive clemency from that state.

On the objection from the Chiong family to the passage of the RP-Spain TSPA for allegedly favoring Larreñaga.

It is perfectly understandable. In fact, that is the reason why Sen. Estrada abstained because the Chiong family apparently were ably to contact him. In the case of Sen. Arroyo, he also abstained because his wife, I believe, is one of the counsel of one of the parties in the case. Basically, there is no objection to the TSPA per se for any country, but there is of course objection on the part of the victims’ family. However, our attitude in the Senate was that one case cannot possibly prejudice the fate of seven Filipino prisoners in Spain .

During the interpellations, I did find out that according to Human Rights Watch, the jails in Spain are also congested, overcrowded, and there are not enough facilities for the number of prisoners.

On the postponement of the Comelec’s budget defense in the Senate

Whenever they do not want to appear, I will always want to discipline them. Because Comelec is not ready for budget defense today, I am recommending that we should lop off Php 277 million. That would only leave them Php 4 billion (original proposed busget is Php 4.277 billion). I think, out of basic courtesy to the Senate as an institution and to the fact that the senators prepared interpellation and, in my case as subcommittee chairperson, defense. They should have at least the respect to prepare themselves. You give an excuse slip during final examinations day to the teacher and say “I am sorry I will be absent because I am not prepared for the test.”

On the rush sale of geothermal plants

All I am saying is that I refused to be rushed on these sales. (They are saying that) The motion to accelerate the sale is based on the concept of privatization which is already mandated by law. I refuse to accept that argument because these are multibillion entities, such as Transco. You get one-tenth percent of billions and you get multimillions.

If this sale, based on these conditions, pushes through will there be kickbacks?

I am afraid so. Because why hurry it? The basic philosophy of Epira is not privatization. It is not to give our state assets to private individuals, but to reduce the cost of electricity in the country. This is because according to our lawmakers at that time private owners would run their businesses more efficiently and that would result to lower electricity rates. But as I’ve shown in my letter to the House panel of the Powercom, that is not necessarily the case with the sale of the geothermal plants. If you quote the price in dollars, what happened with the IPPs will happen all over again, because if you do, whenever there is a currency fluctuation it is the consumer who will have to make the so-called adjustment mechanism, which is actually an increase in the price of electricity.

I do know, as an experienced warrior in this field, that someone is going to make money here. I just want the public to be aware of that, because maybe their propaganda might be so effective that they would begin to charge the JCPC of inaction. No we are not. We are studying every case.

News Release

27 November 2007

MIRIAM HITS MULTIMILLION KICKBACKS IN STATE ASSETS SALE

Sen. Miriam Defensor Santiago, co-chair of the Joint Congressional Power Commission, expressed concern over multimillion kickbacks for certain public officials pushing for immediate sale of government assets in the electric power industry involving billions of pesos.

“The Epira law orders privatization of the power industry, but we must make haste slowly. If we don’t watch out, those sales could adversely result both in higher electric rates paid by consumers, and in multimillion kickbacks and commissions for certain public officials involved,” Santiago said.
Santiago stopped yesterday apparent efforts by PNOC-EDC president Aquino to secure JCPC approval of the Geothermal Resources Sales Contract for Palinpinon 1 and 2, and for Tongonan 1.
Aquino reportedly tried to convince JCPC co-chair Rep. Juan Miguel Arroyo and the JCPC House panel members to secure JCPC approval before December 5, the date set for bidding of the geothermal fields.

Aquino is already under fire from Santiago and JCPC, for allegedly going behind the backs of the JCPC and securing approval for privatization of the National Transmission Corporation (Transco) from Finance Secretary Gary Teves, as chair of the Privatization Council.

In her letter to Rep. Arroyo, Santiago refused to call an emergency meeting of the JCPC to approve the geothermal contracts, because the price for electricity is set in US dollars instead of Phippine pesos.

“This is the very reason why electricity in the Philippines is one of the highest in the world. Under the contracts, the consumers will again be hit by so-called automatic adjustment mechanisms, which will raise the price of electricity,” Santiago said.

Santiago also denounced the provision in the contracts giving so-called performance incentives for PNOC-EDC in the controversial contracts.

“The performance incentives that PNOC-EDC is giving to itself will of course increase the price of electricity,” Santiago said.

Santiago further hit the contracts, because they index indigenous geothermal resources with coal.

“This indexing has no rational basis and would again give windfall profits to PNOC-EDC, at the expense of the consumers,” the senator said.

Santiago insisted that the controversial issues in the contracts should be fully studied first by the new JCPC members.

“One public hearing, without prior study by the new composition of the JCPC, will not redound to the national interest. The Epira mandate to privatize does not preclude full study of the implications and consequences of each contract proposed by PNOC-EDC,” Santiago said in her letter to Arroyo.

The senator told the Senate media that PNOC-EDC “is becoming suspicious,” because it wants to reach fast-break approvals of multibillion contracts which could involve multimillion kickbacks.

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TRANSCRIPT OF SENATE MEDIA INTERVIEW WITH SEN. MIRIAM DEFENSOR SANTIAGO

26 November 2007

On the conflict of interest in the Transco sale

The crux here is that the president of the government agency which is in charge of selling the National Transmission Corporation (Transco), a billion-peso company, is suffering from a prohibited conflict of interest, in the sense that he is an officer of several corporations owned by one of the part owners of a bidder for the government agency. But we must put this charge in context. That is the reason why I, as chair of the Senate panel, and Rep. Juan Miguel Arroyo, as chair of the House panel, of the Joint Congressional Power Commission, which has the power of
control and supervision over the sale of these electric power assets of the government, are first
asking these government officials to explain if they have violated the law. There is a violation of law when the person who is supposed to sign or approve the contract is himself, or through a board, group, or a panel of the government, might have a financial, material, or pecuniary interest [in the contract]. In this case, the allegation is that the president of PSALM, a government agency, was a former member of the board of directors of several companies owned by Mr. Enrique Razon, who is part owner of a company which is one of the qualified bidders. So there is a defense on the part of Mr. Ibazeta if he can show that pursuant to law he divested himself of any interest in the Razon corporations, then there is no violation of law. The fact that he used to be an officer of any of those corporations does not make it illegal if after his appointment he resigned from the position or he sold his shares of stock within the period provided by law, 30 days for resignation and 60 days for divestment of interest.

Furthermore, we have to put it into context that the complaint is being filed by disgruntled bidders who did not make it in the cut. When there’s a public bidding, there is a prequalification process. You weed out those who are qualified and those who are not. And these two objectors, who belong to the failed bidders, are not exactly strangers to the power game in Manila. One is the brother of a congressman, Mr. Zamora. The other one, Mr. Ocampo, used to be a public official. Although there is no presumption of innocence in this case because the law expressly provides that there is a presumption of prohibited interest, the person is given a chance to prove that there is no such conflict because he either resigned or he divested himself. We have to wait for his reply in the name of fairness and justice before we make any serious charges. Senators Pimentel and Madrigal are expressing concern over the alleged conflict of interest. This is what has prompted the JCPC, of which I am co-chair, to require the written explanation from Mr. Ibazeta.

On the schedule of the JCPC hearing on the Transco sale

Now we are entering budget week. Under Senate rules, we cannot hold committee or any other hearing when Session is in order. Since we have sessions morning and afternoon, we are prohibited from holding public hearings this week. The budget hearings may even be extended next week. I have to go from December 1 to 7 to Europe as part of the delegation for the President’s state visit there. The earliest we can set the hearing [on the Transco sale] is on December 13. We shall then be anticipating the presence of two public officials who are now in the hot seat. The first one is Finance Secretary Teves, as chair of the privatization council which approved the sale of the Energy Development Corporation without notice to the JCPC. The Epira law provides that to privatize our government corporation in this particular case, we should sell the generating plants packaged to the steam sales agreement. That this methodology prescribed by the law. Now we hear that the privatization council has approved of the sale by a means other than that provided by law. We had asked Secretary Teves to make an urgent appearance and give an explanation. The second one is Mr. Ibazeta because of the charge of conflict of interest. There are two hot officials who will have to come to the Senate on December 13.

The bidding is on December 12. It will not necessarily be the declared a failure just because there might be conflict of interest on the part of the president of PSALM. Assuming for the sake of argument that that is the case, the bidding will not necessarily result to a failed bid. Remember that we in the JCPC are very anxious that this bidding procedure should now be concluded because in the past we spent a lot of time going over three bidding processes, all of which were declared failures, mostly for the reason that there was only one successful pre-qualified bidder. Pursuant to the philosophy of Epira, which is to sell all assets concerning the power industry to private owners, we want to sell at a good market price the Transco. But we want to make sure that the sale is pursuant to the Epira.

On Sen. Mar Roxas’ election as president of the Liberal Party

It is no secret that Sen. Roxas was elected president of the Liberal Party today in anticipation of his presidential candidacy as official standard-bearer of LP for 2010. By Wednesday, his major rival in the presidency as of the moment, Senate President Manny Villar, is also holding his own show of power, to mark the 100th anniversary of the Nacionalista Party, which is the oldest political party in our country, also in anticipation of his own presidential candidacy. For a while there it looks like a Villar-Roxas race. But now, former President Estrada tour within Metro Manila, where he is reportedly getting crowds of the masses, has prompted media titillation with his public entertainment of the possibility that he might run for president. Then it might become a three-cornered fight. In that case, all bets will be off. It will be three multibillionaires fighting each other and all the rest will have the capacity of ants in the presence of three elephants.

On Sen. Loren Legarda and Vice President Noli de Castro running for President in 2010

They are ants. (Laughter.) When the elephants sneeze, the ants will catch pneumonia. Because it is now a given that you cannot run for president unless you have at least P1 billion, and your chances increase in multiples of tens of billions. The surveys will not count for very much apart from the usual cynicism among the public about the accuracy of those surveys.

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Transcript of the interview with Sen. Miriam Defensor Santiago after the Joint Congressional Power Commission hearing

22 November 2007

On the JCPC’s position on the Steam Sales Agreement between PSALM/NPC and PNOC-EDC

The Joint Congressional Power Commission will pass a resolution requesting the Secretary of Finance who sits as chair of the Privatization Council to come to the Powercom perhaps next week to the Senate and explain why did that council approve the sale of PNOC-EDC considering that this commission has already indicated for the record for the presence of the heads of the power sector that we do not want PNOC-EDC to be sold. Number one, under the EPIRA law, it is the only entity in the government mandated to explore and develop indigenous sources of energy. So in our view, the sale, if it proceeds, will be a violation of EPIRA. It would therefore be illegal, and it that sense, might be a ground for action before our courts.

Number two, we oppose the sale because, as we’ve already said in 2005 in a resolution passed by the commission, there is no objection to the statement or the finding that PNOC-EDC is number one in the world in terms of steam technology and number two in the world in terms of geothermal capacity. It is earning at least P600 million annually, and this income will tend to rise because under a law the price of gas is indexed to the price of oil. The price of oil has risen from $35 per barrel to nearly $100 per barrel. And under Philippine law, if the price of oil rises, the price of gas correspondingly rises as well. Under that law, it is predictable that the P600 million annual income of PNOC-EDC will correspondingly rise.

Lastly, it is said that it is the most profitable venture of government. The argument that we should sell when it is profitable might be relevant in a business environment but we are talking of a policy environment. What is the national policy? Geothermal energy as an alternative source of energy should be sustainable in our country. If we sell this to the private sector, it is the private sector that will make money, not our government. Also it is said that since the privatization council already has approved the sale, we might lose credibility to our foreign investors. But yet, there is a countervailing opinion in the international business community that our economy will prove not as strong as we claim if we depend in a one-off sale to cover the budget deficit which should be logically covered by increased revenues from the Bureau of Internal Revenue and the Bureau of Customs. For all of these reasons, we are giving the Secretary of Finance an opportunity to air his side before the Powercom decides on more coercive measures to insist that PNOC-EDC should stay within government ownership and control.

There was a spirited defense on the sale by the President of PNOC-EDC, Mr. Paul Aquino, and we fully appreciate his arguments. However, it was the unanimous consensus of the commission of all 14 members that his arguments are invalid arguments. They are effective for a business organization, but not for the running of government. We do not want to take drastic measures at this point against those responsible, but our feeling is there has been no proper courtesy extended to the Powercom.

The JCPC is no ordinary committee; it is a commission. In effect, under the EPIRA law which created it, this commission is independent of its own chambers, whether the Senate or the House of Representatives. So it is an extremely powerful commission. When the commission expresses an opinion, and in fact passes a resolution, it is highly impudent of the executive branch—I am not talking of the President—to take action contrary to a resolution of such an elevated legislative group as the Commission. Since they already knew that we were already convinced that there should be no sale, why did they not even bother to formally inform us that they were considering this very same sale in the Privatization Council; we have to learn about it during the recent budget hearing.

The resolution will state that we view it as an illegality, although we will try and work out the proper language so it will not come across as too harsh or threatening because all three branches should always work in harmony since that is the best way to advance the cause of government. But there is no denying that the Powercom is extremely upset about this news particularly since the highest bid was approved yesterday. However, today is the deadline for the issuance of the notice of award and November 30 is the closing date when the winning bidder is required to make a full payment of its bid. So we still have time. We, in our resolution, imply that there is a need to suspend the proceeding of the privatization process, and in effect to give the Powercom at least notice to consider any step as drastic as selling off what has already been described as the crown jewel of our economy.

We considered all arguments. As chairperson of the commission, I already read out my own summary of all arguments in favor of and against privatization. We were hoping that that they would show that government earnings would increase with the sale, but it won’t. There is no certainty; all prices are increasing. Therefore, gas prices will increase as well. so why are we selling an asset in the process of making even more money than it has in the past, and its income-generating abilities have never been in question? Why are we selling it? And who will promote and develop indigenous sources of energy? The Department of Energy testified that it does not have funds for that function since the mandate was very clearly given to the PNOC-EDC by EPIRA law. That will create a vacuum in our energy plans for the future. That would be highly irresponsible. It is not the mandate of the DOF to raise revenues through privatization. What would the international investment community think of a government that seeks to balance off its budget by selling off its assets? [By doing so] Our government will lose even more credibility than the loss of credibility that might occur if there is investor backlash owing to the suspension or withdrawal of the private sale.

I believe that this problem was caused by the confusion in the minds of the officials of PNO-EDC, the DOF and the Privatization Council. They were confused between making identification between raising money and the promotion of indigenous sources of energy. They just wanted to make money as quickly as possible. But our assumption here in Powercom is to think of the future, not only of the short range, intermediate, also of the long term consequences of the loss of PNOC-EDC. That is what really bothers us. I don’t think that the Powercom will allow that to happen.

What may be the punishment for officials if they are found violating laws with the sale of PNOC-EDC?

We can hold the Secretary of Finance in contempt and punish him. Number two, is we can file a case in the Supreme Court and ask for a TRO on the ground that the sale is a violation of law. Three, we can appeal to the President to withdraw the approval. But we don’t want to go into those things yet. In the spirit of interdepartmental courtesy and avoid conflict between two branches of government, it would be best if they just defer to the decision of the Powercom. And then we’ll take it up from there after the next hearing.

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Transcript of the interview with Sen. Miriam Defensor Santiago

19 November 2007

On the continuation of the ZTE-NBN hearing
This is already a hypothetical case because the President has already ordered the cancellation of the ZTE contract… so wala na tayong pag-aawayan pa, kung hindi sino ang lumabag sa ating batas, dahil ang mga taong iyon—dahil nga napakalaking eskandalo ito—ay dapat idemanda sa Ombudsman. Pero ang Ombudsman ang may kapangyarihan na gumawa ng preliminary investigation, ibig sabihin imbestigahan ngayon kung may suspects tayo. Kaya kung iimbestigahin pa rin ng Senado, magiging doble na kasi hindi naman pwedeng ang Senado and mag-imbestiga para sa Ombudsman. If we conduct the investigation here in the Senate at this point, we will simply be anticipating and duplicating the function of the Ombudsman. In fact, we may even be accused of usurping the powers of the Ombudsman. Anyway, whatever happens at this point, the ultimate result will simply be an endorsement to the Ombudsman. So I believe that the Senate should now turn its attention to other more urgent matters such as the national budget, which is already upcoming.

If Sec. Neri cites executive privilege
In my view, this makes Mr. Neri suspect. We could just include him among those whose names we think the Ombudsman should investigate in a preliminary investigation. But there is no more point belaboring the facts because the Senate is not a fact-finding body. We are merely inquiring so that we will know what law to pass. We already know from all the hearings that have been conducted more or less what will be the shape of the law that is needed so that we can avoid this kind of a scandal in the future.

It will quite also set a precedent because kung ganun rin lang na pababayaan siya ng komite ng Senado ay pwede naman pala na i-subpoena ang mga testigo at sasabihin na lang nila na ayaw nila at may executive privilege sila. This is to set a deterrent to other people who might cover up the truth simply by citing executive privilege because as the Chief Justice of the Supreme Court said, the principle of executive privilege remains alive and kicking. It is just a question of making sure that the committees of Congress will not abuse this power.

Transcript of Senator Miriam Defensor Santiago’s Interview

16 November 2007

On the Transfer of Sentenced Persons Agreement between the Philippines and Spain
Kung matapos [ang pagpasa sa] treaty, pwede nang ipalipat ang mga convicted na mga Pilipino (mula) sa Espanya. Meron na tayong ganitong treaty sa Hong Kong at sa Thailand . Meron pang mga treaty na tapos na ngunit hindi pa kumpirmado ng Senado galing sa Canada at Cuba , at susubukan natin na ang ganitong uri ng mga treaty ay mapalawak natin para sa ating mga overseas Filipino workers, lalo na ang mga naco-convict halimbawa sa Middle East . Para silang incommunicado bilang mga preso doon at wala silang pamilya doon na bibisita sa kanila. Iyan ang pakay natin.

Nag-public hearing kami ngayong araw, at sa Lunes ay iso-sponsor ko na sa Senate floor, para pagkatapos ng mga debate ay maghihintay na lang ng tatlong araw para maaprubahan na for third reading sa Senado.

Ilan ang Pilipinong nakakulong sa Espanya?
Pito lang naman sila, out of about 50,000 Filipinos. Ang problema natin sa mga natapos ng treaty sa Hong Kong at Thailand ay hindi pa tayo nag-iimplement ng mga treaty na iyan dahil sa ilalim ng lengguwahe ng mga treaty na ito ang Pilipinas ang gagastos para sa pag-uwi ng mga Pilipino. Walang appropriations sa budget para diyan. Kaya kinakailangan kapag humingi tayo ng concurrence ng Senado, hihingi rin tayo ng kahit limang milyong piso man lang para pambili ng tiket ng mga uuwing sentensyado o convicted persons.

I raised many cracks (in the treaty) or gray areas that are not covered so that they could be covered by the implementing rules and regulations by the Department of Justice.
[Larrañaga] will be the most celebrated beneficiary of the treaty dahil siya ay dual citizen. Citizen siya ng Pilipinas at citizen din siya ng Spain . Dito siya nakakulong pero hindi pa tapos ang kaso niya dahil ang sentensya niya ay reclusion perpetua [at] pinaapela niya ang kanyang sentensya sa Korte Suprema. In his case, the judgment is not yet final. The treaty will apply only if the judgment has become final.

Pero ipalagay natin kapag nasentensyahan na siya ng Korte Suprema, kung gusto niya at magrequest siya dahil Spanish citizen siya, or if the Spanish government makes a request and he consents, doon siya ikukulong sa Espanya. May sasabihin diyan ang pamilya ng biktima, natural, dahil gugustuhin nila na dito sa Pilipinas (siya makulong). Kaya pag-iisipan natin ang mga kasong ganoon. Baka mamaya, ang pakiramdam ng publiko ng Pilipinas ay nadehado ang pamilya ng mga biktima. We cannot entertain any request for transfer from the convict or the state until judgment has become final in our Supreme Court, in the case of Larrañaga.

Who must initiate the request for transfer, the sentenced person or either of the governments?
It is indispensable that the prisoner must consent whether or not he initiated it. Pwede na i-initiate ng Spain , as long as the prisoner later on consents, because we are talking of starting the process. In any event, even if the process has started, if the prisoner does not give his written consent, then everything else that took place before will become invalid.

On the JPEPA
The last hearing will be conducted on Friday next week, 23 November 2007. I am leaving for the ASEAN aspect for my candidature for the International Court of Justice the following Sunday. I will be present on Friday, but for the purpose of continuity, the chair of the secondary committee will continue to preside because he presided already over the additional hearing. He (Senator Roxas) and I have already agreed in principle that we have to find a way so that the treaty will not be declared unconstitutional by the Supreme Court but will also be recipient of the approval and consent of Japan . It is very, very tricky. It depends on the way the language (of the treaty) will be couched. Remember that no state, particularly Japan , wants to lose face, so we cannot say that this treaty is unconstitutional under Philippine law—it is my prediction as a humble scholar of constitutional law that it will be declared unconstitutional by the Supreme Court.

Unfortunately under international law, a state cannot relieve itself of the obligation to implement a treaty just because its Supreme Court ruled that it is unconstitutional. Philippine constitutional law is internal to us, and does not have any validity with respect to an interstate dispute before an international court. We cannot plead that as a defense, but we cannot enforce this treaty because the Supreme Court says that it is unconstitutional. So we have to find a way so that we can accommodate the constitutional dimension in the treaty, but at the same time be able to encourage or persuade the Japanese government to give its consent because this is a bilateral treaty—the other party must always give its consent, both to the treaty and to any subsequent conditions and provision, in which in international law could be called a reservation, understanding, or declaration. The supplemental agreement, or the clause that will assure constitutionality of the treaty for the country, will be contained either in a reservation or an understanding or declaration or exchange of notes. In any event, it will require approval of the Japanese government.

The most practical thing to do, as chair of the committee, is to draft the diplomatic language and consult with DFA and the Japanese ambassador on whether the language is diplomatic enough that it will be considered acceptable by Japan, because if Japan does not consent nothing will come out of these efforts. We cannot just run the risk of campaigning just for concurrence by the Senate plenary only to have it rejected as unconstitutional by the Supreme Court. It will already be an embarrassment for both President and the Philippine Senate who would have concurred. At the same time, it would be a ground for dispute with Japan in an international court. It is in fact crucial for us to be able to deal with the aspect of constitutionality raised by the oppositors but in a manner acceptable to the Japanese.

We must save the treaty because there are good provisions there. We just have to make sure that it does not work to the disadvantage of our people. While I am hoping that I may accomplish this before the Christmas break, it all depends how hospitable an attitude the Japanese ambassador will show. I am very happy that the Japanese ambassador has not rejected any effort to put a postscript to the treaty. Normally other state parties will be very adamant if they already have the upper hand in a treaty, but at least he is very open-minded. In effect, we will just be applying the provision already in the treaty that within one year, each party may expand its reservations. The problem here is this: When they were negotiating the treaty, the Japanese government’s panel were very alert. They made very comprehensive reservations. Unfortunately for us, the reservations we made are too few. What happens now under the treaty is that the Philippines is in a disadvantage. The negotiators made reservations to the “National Treatment” clause, the “Most Favored Nation” clause, and the “Prohibition Against Performance Requirements.” Under the “National Treatment” clause, the state must accord to the nationals of the other state the same treatment but you are allowed to make reservations. There are reservations that are much longer than ours.

This kind of comprehensive reservations that Japan made in the treaty is enjoyed by other countries, such as Malaysia and Thailand , which have already ratified their respective treaty with Japan . I will have to explain in the Senate floor why Japan ’s reservations are longer, and why Thailand and Malaysia have longer reservations than us. What we need to do is to make a provision, or to make sure that the article in the treaty that provides for further reservations within the period of one year will include reservation that will ensure constitutionality of the treaty.

On the recent bombing incidents
We have not yet established a pattern. The recent findings even by foreign police teams were that the Ayala blast was caused by an industrial failure. The initial findings of the PNP are that the blast that killed the congressman was only focused on his own personal assassination. We just have to wait for other senators and congressmen to be assassinated by bombing so that we can declare that there is a pattern of assassination that already indicates terrorism.

But before that, we could draw no conclusion. I don’t think that there should be cause for concern among the senators and congressmen since they are always declaiming about their great love of country. More often love of country is illustrated by young men who go off and sacrifice their lives in the battlefront, so I don’t see why very old people or middle aged people should be so afraid to die for their country when young people are automatically shipped to die for their country. So I am counselling everyone in the Congress: wait until you get assassinated. Then we shall know whether this is terrorist or whether this is just assassination.

If you have this series of blasts, of course foreign investment will respond accordingly. So far it hasn’t. It means that the international business community believes that these incidents are anecdotal. That is a very good sign. It means that the international business community believes that the fundamentals of the Philippine economy are sound.

On whether President Arroyo can take back former President Estrada's pardon
I have said that, normally, if the person pardoned violates the conditions of his pardon, then of course the pardon becomes null and void. But I have to see the pardon itself as signed by the President. It was reported in the papers that it was full, complete, and absolute. If that is the case, it is not a conditional pardon. There is no condition for it. Even if he, let’s say, violates the law, then the pardon will continue. It depends on the language employed. I am only trusting what I read in the papers; if it is accurately reported as having been “full, complete, and absolute pardon,” then the mere fact that he has violated the law will of course incur liability in the prosecution service for him, but it will not necessarily lift the pardon.

12 November 2007

Transcript of the interview with Sen. Miriam Defensor Santiago at the Session Hall

On alleged bribery involving Malacañang:

If there’s a charge of bribery against the President, we have to remember that the President always sits in two capacities. One, as President of the country. Two, as nominal President of her political party or, in this case, her party coalition. It is also possibly a valid defense if it is raised by the administration officials that the distribution of money in Malacañang was owing to a decision of the directorate or a council of the coalition of the President’s coalition party. There will be no illegality because all political parties are supposed to give financial backing to all its incumbents in government. There would be nothing wrong in that position. I should know because when I started the People’s Reform Party all the candidates in my ticket were all asking me for money which I did not have. Apparently, this is a standard expectation of all political personalities who belong to a political party.

The problem there is that the coalition officials did not immediately come out and assure the public that this is existing political procedure. If the charge is bribery, because of the impeachment complaint, I would say that there is a very far gap between the handing out of money in Malacañang by the President’s political party and coalition and the impeachment complaint. You cannot just tie them both immediately. There are so many loose ends if that is the proposition. Let the Senate proceedings take place, but I am afraid that the evidence would not be sufficient to even merit a recommendation to the Ombudsman to investigate the matter further.

Even if the act of giving out money is legal, isn’t it improper to give it out in Malacañang?

That is precisely the point. Why do it there? Why not in their party headquarters? If they don’t have an official headquarters, why not hold a dinner in some establishment? I think that is the error. Otherwise, I really do not see any illegality since after all political parties are supposed to do that.

Whether there is a conflict between the Senate hearing on the matter and the impeachment proceedings

The congressional power to conduct inquiries in aid of legislation is plenary, that is the ruling of the Supreme Court. We can virtually investigate anything. There is no prejudicial nature here. Just because it’s being taken up there (Lower House) doesn’t mean it can no longer be taken up here.

On whether the North Rail Project probe should be reopened:

Definitely yes. In the first place, it has not been terminated. Apparently, the evidence received in the last session of Congress is that he (JDV) might have expressed illicit interest in that contract.

On the JPEPA:

Politics is the art of the possible. Among the administration senators, we really want to support President Arroyo on the JPEPA. The immediate goal here is, first, to convince the opposition. Remember, we need 2/3 vote in the Senate to ratify a treaty. The administration senators do not constitute 2/3 of the Senate. Since there are only eight administration allies, we need eight more. In the Senate, as it is really intended to be in the system of checks and balances, the senators do not always vote according to national interest, which is a very abstruse concept. They vote according to partisan political lines. We face the problem of what appears to be an intractable opposition.

Even more important, we have to be sure that when this treaty is brought before the Supreme Court, which I believe is a certainty, the Supreme Court will not embarrass the President because we want to preserve the integrity of the Philippine President as the official spokesperson of the country in the international community, as well as the integrity of the Philippine Senate as a participant in the decision-making process. I know for a fact that some UP Law professors have already finished drafting a petition for certiorari questioning the constitutionality of the JPEPA before the Supreme Court. They are just waiting for the concurrence of the Senate on the treaty before filing the petition with the Supreme Court.

There are two main objections to the JPEPA. The first constitutional objection is it makes no reservation for any future measure that the Philippines may take in order to express preference, for example, for Filipino nationals, or for Filipino goods and services, or for protecting our domestic industries or our domestic workers, or any developmental measure to protect our people from the interest of Japanese investors. That is almost an invidious failure on the part of the negotiating team.

The second objection is that our Constitution is not adequately protected by the present text of the JPEPA. So if this case is brought to the Supreme Court, I’m afraid it’s a no-brainer, but that’s only my preliminary opinion. Since there is one more public hearing, prudence dictates that I should only express a preliminary opinion. But in my humble view, JPEPA should be accompanied by a supplemental agreement. I am willing to sponsor on the Senate floor a resolution for the President to continue talks with the Japanese government in order that we can have a supplemental agreement. After which, both the JPEPA and the supplemental agreement should then be reported out on the Senate floor. I think then concurrence will no longer be difficult.

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News Release

12 November 2007

MIRIAM: JPEPA NEEDS SUPPLEMENTAL AGREEMENT

Sen. Miriam Defensor Santiago, chair of the Senate committee on foreign relations, on reporting to the Senate after arriving from New York, said that in her preliminary opinion, JPEPA needs to be accompanied by a Supplemental Agreement, because the treaty in its present form fails to make a reservation for future preferential, protective, or development measures over Japanese investments.

“If the treaty in its present form is questioned in the Supreme Court, the case will be a no-brainer. But prudence dictates that we should wait until the last public hearing,” she said.

Santiago, a constitutional law expert, warned “shallow legal kibitzers” to refrain from misleading President Arroyo, because the senator said ultimately the treaty will be taken to the Supreme Court, and it is the duty of the Senate administration allies to protect the integrity of both the President and the Senate in the treaty-making process.

“My preliminary preference is to propose a Supplemental Agreement to the executive branch, and subsequently to sponsor on the floor both the JPEPA and the Supplementary Agreement,” she said.

The senator said she will advise President Arroyo to follow US common practice, and to appoint senators to negotiating delegations, so that the senators will contribute their sense of what the Senate will accept, thus deterring and disarming Senate opposition.

“The reservation in JPEPA is very narrow, and contrasts with comprehensive reservations made by Malaysia, Thailand, and Indonesia in their EPAs with Japan, and even by Japan in its reservation in JPEPA,” Santiago said.

Santiago pointed to specific constitutional provisions that require the State to intervene, when necessary to protect the Philippine economy, with future performance requirements, such as transfer of technology and nationality in hiring policies.

“In its present text, the negotiating team failed to provide for flexibility in imposing or adjusting for preferential measures, and also failed to provide for nationality in hiring policies,” she said.
Santiago, a former UP constitutional law professor, said that during the public hearing, government resource persons “failed to grasp the crucial difference between Annex 6 on trade and services, and Annex 7 on investments.”

“JPEPA negotiators and their defenders made the fatal mistake of differentiating the rules on trade and services, from the rules on investment negotiation. In fact, under Article 88, the definition of ‘investments’ is so exhaustive that in effect Article 88 defeats Annex 6 on services,” she said.

Santiago said that while she was in New York with foreign affairs secretary Alberto Romulo and Ambassador Hilario Davide, to pursue her national candidature for the International Court of Justice, she kept track of the additional JPEPA hearing conducted in her absence, and found no substantial reason to change her preliminary opinion of the treaty.

“The Senate opposition will not ratify JPEPA, because it will become the first treaty under which the Philippines promises never to impose nationality hiring requirements, or technology transfer requirements, on any foreign investment,” she said.

Santiago said that she will be leaving for a campaign in three ASEAN capitals on November 25 to December 5, but she expects to circulate a committee report before the Senate goes on Christmas break.

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News Release

5 November 2007

MIRIAM ADDRESSES UN GENERAL ASSEMBLY

Senator Miriam Defensor Santiago delivered an address before the United Nations General Assembly last 2 November 2007 (Philippine time), during the International Law Commission (ILC) Week in New York.

The ILC Week is part of the General Assembly’s 62nd Session, and is the venue to discuss developments in international law.

Senate President Manny Villar, Majority Leader Kiko Pangilinan, and Minority Leader Aquilino Pimentel Jr. sent Santiago their best wishes before she left for New York .

Santiago , chair of both the Committee on Energy and the Committee on Foreign Relations in the Senate, as well as an international law expert, spoke before the General Assembly on the issues of shared natural resources and reservation to treaties.

As the Philippine candidate to the International Court of Justice (ICJ), Santiago ’s participation in the ILC Week served to introduce her to the international law community and highlight her intellectual capacity and grasp of international law issues.

Last 20 July 2007, Santiago was nominated to the ICJ by the Philippine National Group composed of Supreme Court Associate Justice Consuelo Ynares Santiago, retired Supreme Court Associate Justice Florentino Feliciano, then Integrated Bar of the Philippines National President Atty. Jose Vicente Salazar, and University of Santo Tomas Faculty of Civil Law Dean Alfredo Benipayo.

Santiago ’s candidature was endorsed by Chief Justice Reynato Puno, the Integrated Bar of the Philippines , the Philippine Bar Association, the Philippine Women Judges Association Inc., the Philippine Association of Law Schools, and the Philippine Association of Law Professors.

Santiago ’s nomination to the ICJ was announced by President Gloria Macapagal Arroyo during the ASEAN Ministers’ meeting last 30 July 2007.

Foreign Affairs Secretary Alberto Romulo has ordered all ambassadors and consul generals abroad to support the Philippine campaign for Santiago to the ICJ.

Should Santiago get elected to the ICJ, she will be the second Filipino to serve in the World Court . Supreme Court Chief Justice Cesar Bengzon served as ICJ judge from 1967 to 1976.

Santiago will also be the first female Asian judge in the ICJ. She will also be the second female ICJ judge, next to Rosalyn Higgins from the United Kingdom . Higgins currently serves as President of the ICJ.

Five seats in the ICJ will be available in 5 February 2009. Elections will be held at the UN in New York late 2008. A candidate needs to get at least majority vote in both the UN General Assembly and the UN Security Council, voting simultaneously but separately.

The ICJ is the principal judicial organ of the United Nations. The Court decides two types of cases: (1) legal disputes between States submitted to Court (contentious cases); and (2) requests for advisory opinions on legal questions referred to it by United Nations organs and specialized agencies (advisory opinions).

Santiago is banking on her long and distinguished career in government and her strong record of academic excellence to take her to the World Court .

Before her term as senator, she served as presiding judge of the Quezon City Regional Trial Court, Commissioner of Immigration, and Secretary of Agrarian Reform. She was awarded the 1988 Ramon Magsaysay Award for Public Service (the Asian equivalent of the Nobel Prize) for her work as Immigration Commissioner.

She has a Doctor of Science of Law degree from the University of Michigan , where she was a Barbour Scholar and Dewitt Fellow. She was also a Visiting Law Fellow at Oxford University and a Visiting Fellow at the Lauterpacht Research Centre for International Law at Cambridge University . She also worked as professor of law at the University for the Philippines for more than a decade. She is listed in the 2000 United Nations roster of eminent and highly qualified experts in international law and is the author of a number of books on international law and international relations.

Photo by Elmer Cato of the Philippine Mission to the United Nations