MIRIAM GOES AFTER ABSENT, LATE SENATORS

Sen. Miriam Defensor Santiago successfully secured new Senate rules to punish absent or late senators, and to prevent them from delaying the passage of bills.

On Santiago ’s motion, without objection, the Senate adopted the new rule providing that absence of a senator will be deemed as a waiver of his right to interpellate the sponsor of any bill. “Under present practice, delay results when an absentee senator does not show up during the date that he reserved for interpellation. Delay also results, when a bill’s sponsor is absent, and there is no one to answer the questions,” the senator said.

Santiago said that if a senator has to be absent, then he should appoint a substitute senator to continue pending business. Another Santiago motion passed by the Senate is for session to start promptly at 3:00 p.m. as scheduled, and not to wait for a quorum which usually appears only at 3:30 or even 4:30 p.m.

Under the new rule, a Senate session will start at 3:00 p.m., on the condition precedent that the session will be deemed retroactively valid, when a quorum is raised, at which time roll call will be held.

“We are bending Robert’s Rules of Order, which requires a quorum to start a session. But the Supreme Court has held that the Senate can change its internal rules of procedure at any time,” said Santiago , a lawyer.

Santiago noted that last Wednesday, May 28, at 3:00 p.m., there was no quorum as usual, but when Senate President Manny Villar banged his gavel, immediately a quorum appeared. “It is a matter of self-discipline.

Late senators should not be allowed to determine when session will start,” the senator said. Santiago’s motions were supported by Senators Aquilino Pimentel, Jr., Juan Ponce Enrile, and Richard Gordon, who each spoke up to denounce absenteeism as a source of delay in legislation.

But Majority Leader Sen. Francis Pangilinan said the new rule will apply, only if the Senate President agrees to start session without a quorum. Santiago ’s third successful motion was to add two podiums facing the senators, in addition to the six installed podiums, which all face the Senate President.

The new podiums will be installed by Monday, June 2.

“This is the arrangement in most Congresses worldwide, including the U.S. Congress. At present, when a senator delivers a privilege speech or a sponsorship speech, he has to turn his back to the other senators, in order to face the Senate President. The present system also makes it hard for media and people in the gallery to follow the speeches,” Santiago said.

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Transcript of Senator Miriam Defensor Santiago’s interview

On premature campaigning through commercial advertisements

I have taken the liberty of writing the chairman of the Comelec, former Supreme Court Justice Jose Melo, so that Comelec can study and then issue a resolution on the question of premature campaigning. We know that the law prohibits premature campaigning but several putative candidates for the 2010 elections, whether they are presidentiables, vice presidentiables, or senatoriables are already campaigning in the guise of commercial advertising, particularly on television or billboards. That is a violation of the law, and we lawmakers in the Senate should not be among the first to violate the law.

Their excuses are very thin and very prevaricating. It is a reality that in our Election Code there is no premature campaigning if the candidate has not yet filed a certificate of candidacy, and that would be allowed once election period begins. So to argue that before the certificate of candidacy has been filed any person can campaign is very specious. It is a way of contravening the law, or breaking the law but making a very sham excuse for it.

Secondly, the common excuse is the Election Code also allowed campaigning if it is intended to capture a seat as an official candidate of a national party. But basically, all these candidates are sure of being nominated by their party, so again that is a false and a mentally dishonest argument.

Apparently the Senate President has said that the Senate has to make a study on premature campaigning. But I humbly submit that primary jurisdiction to reconcile and interpret these appropriate provisions of the Election Code does not belong to Congress. It belongs to the Comelec, because under the Constitution, the Comelec has the primary function to enforce and administer our election laws. In other cases, the Supreme Court can pass resolutions interpreting certain provisions of the Omnibus Election Code. That is what they should do now so that we could stop all these pretense that they are not campaigning but they already are inflicting pain and boredom to the TV and radio audiences by campaigning so early.

Some argue that they are merely earning extra income. Give me a break! A senator’s total remuneration is more than handsome. So they cannot claim that they are indigent, or that they need to raise money. They were never commercial models before. Some of them just do not deserve to inflict their faces on the TV audience.

I hope that Comelec will duly consider my request, and thereafter issue a resolution so that it can define for us the crime of premature campaigning. It is penalized in the Election Code. All of these arguments made by these candidates concerned are in direct conflict with a specific provision of the Election Code, which it is illegal to campaign directly or indirectly to solicit votes or support for his or her candidacy. There is a specific provision that prohibits a premature campaign even it is done indirectly, which is being done today.

So I hope with the Comelec resolution, all candidates will draw the line. Comelec just has to read the riot act to these recalcitrant candidates. I am not referring to any particular candidate. I am just discharging as a lawyer what I feel is a very humble contribution to the rule of law in our country.

Does it only cover commercial products or does it include personal advocacies?

Yes of course. There’s a time for that—that’s the campaign season. It would fall under the provision that makes it unlawful to conduct any election activity or partisan political activity.

In fact, I think out of the sense of delicadeza, politicians who are in power should appear as commercial models at any time. You can never tell whether in the future a member of Congress might be faced with a bill or some decision that might represent a conflict of interest between the commercial establishment for which he made an ad and his duties as legislator. So even without premature campaigning as an issue, I don’t think that any incumbent senator or congressman should appear endorsing any commercial product.

Not everything that is legal is moral. They should just remove those without waiting for the Comelec to issue a formal order. That order from the Comelec would humiliate them. If I were one of those candidates I would just voluntarily pull out those advertisements. If you read between the lines of the Anti-graft Law, that would be a case that a member of Congress should observe self inhibition in endorsing any commercial product because of any potential of conflict of interest.

-o0o-

28 May 2008

Chair Jose A.R. Melo
Commission on Elections
Intramuros


Dear Chair Melo:

This is to respectfully request a Comelec Resolution on the implementation of BP Blg. 881, the Omnibus Election Code of 1985, particularly Sec. 80, which makes it unlawful for any person to engage in an election campaign or partisan political activity, except during the campaign period.

This prohibition against premature campaigning is blatantly circumvented at present, under any or all of the following disreputable claims:

• Since under Sec. 79 (a), “candidate” refers only to a person who has filed a certificate of candidacy, allegedly the prohibition does not apply to a person who has not yet filed the certificate.


• Since Sec. 79 (b) allows campaign acts, if performed for enhancing the chances of aspirants for nomination of a political party, allegedly the prohibition does not apply.


• Since Sec. 79 last paragraph allows public expression on probable issues or on attributes of probable candidates for nomination of a political party, allegedly the prohibition does not apply.

Such claims are specious and made in bad faith, because Sec. 79 (5) specifically defines an “election campaign” or “partisan political activity” as: “Directly or indirectly soliciting votes, pledges, or support for or against a candidate.”

I respectfully submit that it is Comelec, not Congress, which has primary jurisdiction to interpret the Election Code, under the Constitution, Article 9 (C) and Sec. 2 (1) vesting the Comelec with the power to: “Enforce and administer all laws and regulations relative to the conduct of an election . . . .”

I respectfully file this request, in response to mounting media and public clamor to stop the ongoing premature campaign of certain candidates. It is unacceptable for lawmakers themselves to violate the law, by invoking deceptive technicalities to circumvent that law. I do not direct this request against any particular candidate. But as a lawyer, I merely want to make a humble contribution to the rule of law.

Thank you.

Sincerely yours,
(Sgd.)MIRIAM DEFENSOR SANTIAGO

MIRIAM ASKS ERC TO REDUCE POWER RATES

Sen. Miriam Defensor Santiago, chair of the Joint Congressional Power Commission (Powercom) issued instructions to ERC chair Rodolfo Albano to take immediate steps to reduce Meralco rates.

Santiago said that although Powercom has no power to issue orders to ERC, the EPIRA law gives Powercom the function of issuing guidelines to ERC, and to monitor and ensure implementation of the EPIRA, which was intended to lower power rates.

In a privilege speech yesterday, Santiago issued the following guidelines to ERC:

• Resolve within three months, all pending petitions already submitted for resolution, with the end in view of lowering immediately the Meralco power rates;
  
• Uphold consumer protection in resolving the present petition from Meralco and Napocor, requesting permission to pass on to the consumers some P14 billion of the Meralco debt;
  
• Announce immediately a cap on systems losses, lower than the existing 9.5 percent cap;
  
• Order Meralco to list all inclusions in their generation cost;
  
• Order Meralco to show cause why it should not immediately give refunds to its consumers, pursuant to the Supreme Court decisions in cases concerning Meralco income taxation which were apparently passed on to consumers; and
  
• Order Meralco to show cause why it should not immediately give refunds for deposits on billing meters.

In the same privilege speech, Santiago said that the internet website of ABS-CBN, owned by the Lopez group, has committed against her the crimes of blackmail or grave threats, as well as the crime of libel, intended to defeat her candidacy for the International Court of Justice.

Santiago said that the website is guilty of following a scheme or pattern, because a series of derogatory articles against her and Powercom appeared immediately in the website after she chaired a Powercom public hearing to investigate why Meralco power rates are so high, the second highest in Asia.

Santiago chaired the meeting on May 12; the alleged defamatory articles appeared on May 16, 21, 23, and 25.

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LOPEZ FIRM HITS MIRIAM ON WORLD COURT BID

Only weeks after Sen. Miriam Defensor Santiago partly blamed Meralco for high power rates, the ABS-CBN internet website in its top story tried to scuttle her candidacy for International Court of Justice (ICJ) by claiming that “some countries are moving to oppose her . . . , she has not even qualified for the highest court of the country.”

The story claims that “some countries are moving to oppose her,” without naming the countries or giving the reason for the alleged opposition.

The story also claims that “she has not even qualified for the highest court of the country,” referring to the decision of the Judicial and Bar Council not to even consider her nomination because they chose to adopt the policy of considering only incumbent Supreme Court justices.

Santiago recently presided over a televised Joint Congressional Power Commission hearing where she equally blamed Meralco and the National Power Commission (NPC), as well as alleged lax regulation, for the high power rates charged by Meralco.

Both Meralco and ABS-CBN are part of the vast Lopez business empire.

A top official in the Philippine Permanent Mission to the United Nations in New York , alleged that “the negative spin of the news articles obviously affects the campaign since foreign embassies in Manila and the foreign service of other countries would report this to their capitals.”

The source also said that “the article would tremendously affect both the gains achieved by the Philippines in the campaign in the ICJ and its future efforts to preserve such gains to obtain more support.”

Santiago is not running in her own individual capacity, but as official candidate of the Philippines .
“The news article is full of unhelpful conjectures and factual errors,” the source said.

The derogatory item in the ABS-CBN website was published on May 23, only days after the probe on high Meralco rates.

Contacted for comment, Santiago said that the bicameral investigation was part of Powercom duties under the law.

While Santiago is Powercom chair, the co-chair is Rep. Juan Miguel Arroyo, son of President Arroyo, who has been urging Meralco to lower its power rates.

“I will have to take this in stride, because the Philippines has a culture of corruption. A vast business empire such as that of the Lopez family will not hesitate to use its media outlets, even to the point of destroying a national candidature, in order to protect their giant corporate profits,” Santiago said.

Santiago added that at least one newspaper columnist in a national daily had previously hinted that there would be a propaganda campaign against Santiago’s ICJ bid when because the columnist mentioned that her prior bid for another international court was scuttled because Santiago was an Estrada ally at that time.

Santiago added she would consider over the weekend whether she will avail of her options, such as a libel suit or a privilege speech on Monday, or whether she will just “suffer in silence” from the Lopez media firm.

“It is obviously the work of a dirty tricks department so evil that it hardly merits attention. In trying to destroy me, they are also destroying a Philippine national candidature. Sometimes iniquity is its own worst punishment,” she said.

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Transcript of Senator Miriam Defensor Santiago ’s interview

On the proposal to restore the death penalty

As a former RTC judge of Quezon City , I oppose the move to restore the death penalty. When I was RTC judge and handling cases punishable by death, during the course of the trial I noticed that when the accused was threatened with the death penalty, there was no obvious terror or deterrent effect on the face of the accused. Apparently, criminals who go to the extent of murdering people are not deterred by the death penalty. This is not to underestimate the heinousness of the crime, but there are remedies.

The abolition of the death penalty was a matter of criminal law philosophy that it is better to rehabilitate the accused than to kill him outright. Number two, we will be going against the global mainstream if we restore the death penalty because it has been condemned, meaning to say that it has been vigorously sought to be abolished not only by the churches, but also by the United Nations and the European Union. So that would be a step backward.

Normally, the arguments in favor of the death penalty are that the penalty should be commensurate to the crime. However, the problem there is not whether by taking their lives we would restore the lives of those they took. The answer of course is no, those lives have been lost. If we punish with the approach of an eye for an eye, a death for a death, then we are starting a vicious cycle.

Plus, in this case, we would be violating the right to life, which already has been constitutionalized in our country. You will say “What about the right to life of their victims?” You will be correct. However, the question here is what is the best penalty for society as a whole. It may be that the families themselves may not even wish for the death penalty, they’ll simply wish for appropriate punishment. Sometimes, considering the miserable conditions of our jails, life imprisonment can be more proportionate as punishment than death itself.

Today we are very moved, and we sympathize and understand the grief of the families of the victims. But suppose after a month unearths documents to show that people who have been meted out the death penalty were innocent of the crime. Do we again agitate for the abolition of the death penalty? So, in other words, our attitude should not reflect what is happening in society, instead reflect a calmer, more objective view of the issue.

Death is not the answer to death. The answer to death is life. You can never tell which one of the rehabilitated and become a useful member of society. This does not mean that everybody is free to commit murder. In fact, the solution there is to make sure that for the families of the aggrieved that police and NBI enforcement should be stepped up because justice delayed is justice denied. The faster we identify the perpetrators, and the faster that the court sends them to jail, then, maybe, the better we can reduce the degree of grief of their families.

I don’t think that it would be a proper reflection on the sobriety and scholarship of the Senate if we pass a bill just about in the prior congress, and then backtrack. We cannot change our minds every two years. It would not say very much about our consistency or our grasp of the issues involved.

MIRIAM: JAIL FOR LYING ON POWER RATES

Sen.Miriam Defensor Santiago, chair of the Joint Congressional Power Commission (Powercom) said she would cite for contempt any official of Meralco, NPC, or WESM who fails to prove allegations made during the public hearing on power rates.

“In other words, if I catch them lying under oath, those officials could be fined up to P500,000, and jailed up to six years,” she said.

Santiago said that for her to decide who is lying, she has secured the cooperation of UP professors who are experts in the electric power industry, namely: Profs. Allan Nerves, Rowaldo del Mundo, and Bienvenido Malquisto, from the Electrical and Electronics Engineering College; and Profs. Arthur Cayanan, and Helena Agnes Valderrama from the Business Administration College.

Santiago issued “urgent orders to submit information” to Meralco president Jesus Francisco, NPC president Cyril del Callar, Asst. vice-president Mario Pangilinan of PEMC, and OIC Alejandro Barin of the ERC.

The orders specify particular documents required from each agency, to be submitted 15 days from receipt of the order.

“The first order of the day is to determine the price paid to the IPPs of both Meralco and NPC,” she said.

Santiago said the issue with respect to Meralco is alleged price manipulation, by making it appear that their own IPPs sell at cheaper prices than those charged by NPC and WESM.

The senator said the issue with respect to NPC is that NPC has been passing on to customers actual IPP costs, instead of avoided costs, meaning marginal cost, as provided by law.

“What Meralco and NPC pay to their respective IPPs, sets the reference rate for the power rates paid by consumers. We have to put closure on this IPP issue, otherwise our power rates will be high forever,” she said.

Santiago said that if documents prove that Meralco intentionally made the decisions to favor its own IPPs at the expense of consumers, that would be management abuse which could be a ground to cancel the Meralco franchise.

“It is virtually impossible that Meralco managers did not know that their decisions would result in unconscionable transfer of wealth from consumers to their own pockets. Such alleged mismanagement is punishable,” she said.

“The second order of the day is the alleged NPC manipulation which results in the Meralco billing for WATOU, or weighted average time of use. It appears that the TOU rates of NPC are very high,” she said.

Santiago said a separate hearing will be needed on the issue that NPC is allegedly increasing its prices to create an emergency situation which would allow it to buy fuel, not through competitive bidding, but through negotiation.

“The Senate energy committee has a duty to investigate whether NPC is negotiating with fuel supplies, instead of holding competitive biddings. The related allegation is that NPC is dealing with fly-by-night coal suppliers,” the senator said.

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Transcript of Senator Miriam Defensor Santiago ’s interview

After the Powercom hearing on Meralco’s high electricity rates

Ang Joint Congressional Power Commission or Powercom na may kapangyarihan sa power industry ay at least nagbigay ng dalawang resulta na makatulong para bumaba ang presyo ng kuryente. Una, inutusan namin ang Energy Regulation Commission, ang tagabantay ng Meralco, Transco, at NAPOCOR na hindi dapat payagan ng ERC ang petisyon ng Meralco.

May kasunduan sila na dahil may utang ang Meralco sa NPC at ang NPC naman ay may utang sa Meralco, hindi nalang nila itutuloy ang paghahabol ng utang nila sa isa’t isa kung ‘di ipasa nalang nila sa mga customers. Ang ginawa natin ngayon ay inutusan ang ERC na huwag payagan ang petisyon na iyon dahil nag-utangan sila sa negosyo nila. Walang papel ang taong bayan doon, hindi naman tayo kinonsulta sa mga utang na iyon. Kailangan sundin ang prinsipyo na kung hindi nakisali ang consumer sa desisyon ng management, hindi sila dapat singilin.

That’s called the “just and reasonable principle”. Under that principle, we have ordered the ERC to dismiss the petition of Meralco supported by the NPC to pass on the costs of their mutual debts to the consumer. We do not even know the exact amount, but definitely it will run perhaps to billions.

Pangalawa, nakuha natin kanina na utusan ang ERC na lagyan ng limit ang systems losses na kalakip doon sa billing ng Meralco. Bawat buwan, nakalakip doon sa binabayad natin sa kuryente ang tinatawag natin na systems losses. Ngayon sa ilalim ng batas, dapat may limit yan kung magkanong systems loss ang pwedeng ipasa ng Meralco sa customer. Hanggang ngayon, hindi nila linalagyan ng limit, kaya inutusan natin kanina ang ERC na lagyan ng limit ang systems loss na yun para lumiit din ang pagsingil sa ating consumers.

Who is to blame for the high electricity prices?

Hindi mo masasabi dahil ang aming mga conclusion ay manggagaling sa mga dokumento na hiningi naming ibigay sa komisyon galing sa iba’t ibang mga pinuno ng mga ahensya na may kinalaman sa paghatid ng kuryente. Pero sa ngayon nakikita ko na mayroon talagang mali na ginagawa ang Meralco. Halimbawa, inaamin ng presidente ng Meralco kanina na ang binibili nilang mga metro sa kuryente ay naggagaling din sa kumpanya na ari din ng Meralco at inaamin nila yung ibang systems losses nila ay hindi kasalanan ng mga gumagamit kundi hindi basta dahil teknikal o due to pilferage kaya ang Meralco ang may kasalanan.

Hindi lamang iyon, pati ang Napocor ay may kasalanan din. Mayroon din silang management abuses. At dapat, ang tagabantay o regulator nila na ang ERC ay kahati din dun sa pagtaas ng presyo dahil hindi sapat ang bagsik ng ERC na bantayan at suriin nya ng mabuting mabuti itong pinagpapatong sa ating electric bill kaya hindi mo masasabi talga na iisa lang sa kanila ang may kasalanan. Pare-pareho silang may sala talaga at banding huli, mangangailangan yan ng pagamyenda ng ating batas ngayon na tinatawag na EPIRA law.

How soon will we see the results?

I hope the results will reflect, more or less, 30 days after the 15 days compliance I gave the ERC.

How about Mr. Garcia's proposal to change Meralco's management?

Ewan ko lang kung pwedeng magawa iyon dahil napaka kumplikado nito, sari-saring mga scientific factors ang involve jan. Kaya ang gagawin natin ay hihingi tayo ng tulong ng isang grupo ng mga UP professors na sa ngayon ay nag-aaral kung paano ibaba yung presyo ng kuryente.
How about the proposal to bring down the VAT?

Imposible yun, dahil wala na ngang pera ang gubyerno tapos lahat ng buwis na napatong dun ay gusto nilang tanggalin, e di lahat nalang ng sector ng ekonomiya hihingi ng ganyang pagalis ng VAT.

On Garcia’s proposal to divide the franchise ng Meralco

There’s no problem with that, we already have a model. What used to be the MWSS was divided into two and it did not result into higher water rates. It, in fact made a lot of money for one franchise holder although the other franchise holder did not make much money. Anyway, it resulted in better water supply. So, we in the Commission have no objection if that is his proposal. Ang question lang dun, ay sabi nila ay hindi nila gusto na ang GSIS ay magpapatakbo kung di sila ang maghahanap ng mas magaling na magpapatakbo. Ewan ko lang kung magagawa yan dahil marami kasing pasikut-sikot jan. Sino ang ilalagay mo dyan ay dapat alam niya lahat ng mga relations diyan ng Meralco at ng mga subsidiary companies and all will depend on the price of electricity by that time. Pero kung management efficiency lang ang paguusapan, mukhang may napatunayan kanina sa pagtatanong ng mga senador at mga kongresista na talagang may management inefficiency. Ibig sabihin ay hindi napaaketo ang batas na sabi ay dapat bigyan ng kuryente ang mamamayan sa least cost manner.

Is there a syndicate here?

Una, ang pag-amin ng Meralco na bumibili siya ng sarili niyang mga metro sa sarili nyang kompanya, at least in part. May mga satellite companies ang Meralco kaya nakikinegosyo sya sa sarili niya. You should keep your private business interest at arm’s length from the public interest.

Is Meralco to blame for  the systems loss?

Partly may kasalanan ang ERC, kasi dati may limitasyon yan e, I think it was 9.5 percent tapos na-abolish ang limit na yun and the power was given to the ERC to set the new limits depending on all those factors that I read off, pero hanggang ngayon hindi sila nagseset ng limits kaya parang libre ang Meralco na gumawa ng kanilang limits. Sasabihin nila na pareho ang lahat ng ito at pinayagan ito ng ERC kaya yun naman ang base ko na magsabi na lax ang ERC. Sana kung mas mahigpit sila sa pag implement ng EPIRA, hindi sana tumaas ng ganun ang singil sa kuryente. Hindi ibig sabihin na dahil na-approve na ng ERC e legal na. Maaring may kasalanan din ang ERC at pati sya maparusahan.

Theoretical studies by technical scholars can find out if there has been a violation of the “just and reasonable principle” or violation of the least cost principle. They could be charged criminally under the penal code for combination in restraint of trade kung ang resulta ay tumaas ang binabayaran ng mamamayan o kaya hindi maganda ang resulta sa ekonomiya pwede na siyang violation of combination in restraint of trade. Parang anti-trust law and anti-monopoly law.

MERALCO HONCHOS GET P97M ANNUALLY

Sen. Miriam Defensor Santiago, chair of the Joint Congressional Power Commission (Powercom), said high power rates are caused by apparent management abuse not only in the Manila Electric Co. (Meralco), but also in the National Power Corporation (NPC), and by apparent laxity in the Energy Regulatory Commission (ERC).

“These apparent management abuses and lax regulation are the reasons why the Philippines has one of the highest power rates in the world, second only to Japan in Asia,” Santiago said.

NPC is the generator, Meralco is the distributor, and ERC the regulator of the power industry, with all three and other sectors falling under the bicameral Powercom’s power to “set the guidelines and overall framework to monitor and ensure proper implementation” of R.A. No. 3196, the Electric Power and Reform Act of 2001.

“Consumers are paying for the high annual salaries of the Meralco chief executive officer and seven other senior executive officers which in 2008 will total some P97 million. The officers and directors as a group will get some P170 million. This appears to be management abuse,” Santiago said.

Santiago listed “apparent management abuses” by the three agencies as follows:

• Meralco is reportedly buying electricity from NPC and WESM (Wholesale Electricity Spot Market) during peak periods, when prices are high, resulting in high pass-through generation charges to its consumers.
• 
  
• Meralco and NPC entered into an agreement to ask ERC to allow Meralco to pass on to its consumers its unpaid debts to NPC.
• 
  
• Power rates are high in Luzon, than in Visayas and Mindanao .
• 
  
• NPC apparently manipulates its rates based on Time-Of-Use (TOU) which are very high, and which are passed on to consumers.
• 
  
• NPC apparently gives preferential rates to economic zone consumers, but passes on the cost of the discounts to its other consumers.
• 
  
• NPC charges its consumers for its revenue requirements, which seem to include its P7 billion bad debts.
• 
  
• NPC buy its power from IPPs (Independent Power Producers) but at higher rates than the avoided cost, or the marginal cost, and then passes on the higher rates to the consumers
• 
  
• ERC has neglected its duty to set the new caps on recoverable systems loss, and use questionable “performance-based regulation,” valuation of assets, and benchmarking methodology.

But the senator said there is no basis for the charge that Meralco has been passing on to its consumers high system losses, because Meralco has apparently been absorbing P1 billion every year in system losses.

Santiago said the possible penalties for management abuse can be legislative, corporate, and criminal.

Meralco operates under a franchise, meaning a right conferred by the government to engage in specific business, including the rights necessary for public utility companies to carry on their operations.

“The legislative remedy provided by the Constitution is for Congress to amend or repeal the Meralco franchise, as required by the common good,” she said.

The senator added that the corporate remedy is to penalize the responsible Meralco managers, by voting them out in the next stockholders’ meeting this month.

“The criminal remedy is to file cases in court against the responsible Meralco and NPC officers for the crime called ‘combination in restraint of trade,’ which refers to any conspiracy ‘for the purpose of making transactions prejudicial to lawful commerce, or of increasing the market prices,’” she said.

Santiago ordered the three agencies to submit replies to her long list of technical questions for each agency, and to attach the proper documents.

She said that all replies and documents will be the basis of the report and recommendation that Powercom will submit to Congress.

Santiago also ordered that a set of replies and documents shall be given to a team of UP professors who are at present conducting a study for a paper to be titled “Anatomy of Power Rates in the Philippines .”

The Powercom report will have to analyze technical, financial and regulatory factors that contribute to the present high power rates. It is complex, labyrinthine, and often subterranean,” she said.

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Transcript of Senator Miriam Defensor Santiago ’s interview

On today’s Senate foreign relations committee hearing

The resource panel synonymously endorsed Senate concurrence with two groups of treaties. One group consisted of the Mutual Legal Assistance treaties. This means that in criminal proceedings, the Philippines together with other country will perform certain services, if necessary, in connection with a criminal proceeding in that other country. For example, if they are looking for some witnesses, certain documents, if they want to see certain assets in the criminal proceeding in that country.

The resource panel also unanimously recommended concurrence with the Avoidance of Double Taxation Treaties. There are already 36 of such treaties, so I foresee this will be easily concurred in by the Senate. They are very non-controversial. It will encourage foreign direct investment because a capitalist will not come to the Philippines if his income will be taxed both in his home country and in the Philippines . We will have to forego or waive the taxes on that foreigner, but in compensation, that foreigner will be encouraged to provide foreign direct investment here. We are just following the path we already set with the 36 other Avoidance of Double Taxation Treaties.

The RP-Spain MLAT is different in a sense that even if the act which is involved in the proceedings does not constitute a crime in the Philippines , still the Philippines will be obliged to provide legal assistance. That is not a provision in the other treaties. But, I also noted that sometimes this is the result of negotiations. We cannot really have our own way all the time during the negotiation process. It doesn’t really bother me as long as the DFA will give me a written memorandum explaining why Spain took that recalcitrant stand. Possibly, they said either you include this provision or we don’t have a treaty. Sometimes we have good grounds based on their own peculiar circumstances.

On the Powercom hearing on Monday (12 May 2008)

I expect it to be a battle of titans. I will ask Mr. Winston Garcia of the GSIS to enumerate as briefly as possible the ways in which he thinks Meralco has been mismanaged such as to result in very high electricity rates. The JCPC or Powercom is not really concerned with the ownership issue. That is the business of business. But we in the JCPC are concerned with the issue of very high electricity rates. Pitong taon na ang ating Epira na gumawa ng pagbabago sa ating industriya ng kuryente, pero pagkatapos ng pitong taon, hindi pa rin nakamit yung tanging layunin na ibaba ang binabayad sa kuryente. Ibig sabihin lahat kami ay failure. Epira is a failure. The Senate is a failure. The executive branch is a failure.

Bakit? Dahil ang Meralco, dapat pasabugin iyan. Pugad iyan ng mga sindikato. Mas grabe pa iyan sa Bureau of Customs. Baka hindi alam iyan ng may-ari. Yun ang basehan kung bakit sinabi ng ibang senador na Meralco lang ang makakapagpatakbo sa Meralco. Ang ibig sabihin lang niyan ay napakaraming pasikot-sikot diyan. That is a conglomeration of mafias. I am sure, although I may not have the evidence, that there is a crime involved. That is a crime of a combination of a restraint in trade or monopoly. That is punishable under the Penal Code.

In America , ang anti-trust laws nila ay isang buong encyclopedia. Sa atin, isang provision lang ng Penal Code, hindi pa ginagamit ng Department of Justice. Maybe it is time that the DOJ made an example of Meralco employees and officials. I am not particularly talking about the Lopez group, they are simply the owners. Sometimes the owner just participates in the profits and allows other people to run their business. But, from the way we have seen how Epira cannot effectively lower the price of electricity, I am reasonably certain that there are criminal syndicates operating in Meralco, and they are all punishable for violating the Penal Code against combinations in the restraint of trade.

Sinasabi ng iba na ang kuryente na binibili niya hindi lamang sa Napocor kundi sa iba pang independent power producers (IPP) na pag-aari rin pala ng Meralco. Kaya binibilhan niya ang sarili din niya. That is self-dealing. That is inimical to the public interest, apart from being a criminal offense.

Maliban diyan, may isa pang batikos. Lahat daw ng materyales sa industriya ng kuryente ay binibili ng Meralco sa kumpanya ng pag-aari rin niya. Ang mga poste, electrical wiring, electric meters, and all other components of the delivery system for electric power. Tingnan natin ang mga batikos. So far, all we have are accusations.

Basically all these accusations are intended to wrest control of Meralco, and it is no concern of ours here in the Powercom. Our concern here is very basic: Bakit napakamahal ng kuryente?

Ipalista natin kay Mr. Garcia o sa kanyang representative ang lahat ng argumento niya, at makikita natin diyan kung ano ang dahilan kung bakit mataas ang presyo ng kuryente, at pagkatapos ay ipasagot natin sa Meralco. Sa ganoong paraan, makikita natin who is making more sense.

Plus, mayroong mga lupon sa electric power industry na nagmamaniobra na hanggang ngayon na ang ating kuryente ay manggaling sa coal, dahil ang laki ng ipinapatong nila kung magbenta sila ng coal sa Napocor. Titingnan din natin iyan pagkatapos nito. Kaya maari na ang imbestigasyon sa Senado sa Lunes ay matutuloy sa kasunod pang Lunes tungkol naman sa coal.

Ang resulta nito ay lalagyan natin ng proper provisions ang Epira law, which is in the process now of being amended by the Senate.

Malipat man natin ang pag-aari o pagpapatakbo ng Meralco galing sa pribadong kamay papunta sa gobyerno, meron ba tayong garantiya na magiging mas maganda ang pagpapatakbo nito o magiging mas mababa ng presyo ng kuryente, dahil kung bababa agad ang presyo ng kuryente, lahat tayo at kami sa Powercom ay pabor na magkaroon ng ownership o management takeover. There is no such guarantee, kasi maski sinong commissioner mo diyan, talagang kikita at kikita ang mga sindikato kasi matagal na sila doon at mahirap silang kuwestiyunin. Marami silang pera kaya sisiraan nila agad ang bagong tagahawak ng sistema nila hanggang magresign na lang ang pobre. Kaya dapat diyan sana , meron tayong administrator ng Meralco who is very street smart. Otherwise he will only be an office technocrat and he will definitely fail the expectations of the public. We need a graftbuster.

MIRIAM: RIGHT TO REPLY RAISES CHARTER ISSUES

Sen. Miriam Defensor Santiago, a constitutional law expert, warned in the Senate plenary debate yesterday that the bill giving the right of reply to any person attacked or criticized by media, raises certain constitutional issues.

“The first constitutional issue is the chilling effect on the right of free expression. The right of reply might in effect result in prior restraint on free expression, if it succeeds in causing media to refrain from using any material adverse to any public official or personality,” she said.

Santiago cited the 2001 case of Social Weather Stations v. Comelec, where the Supreme Court ruled that there is no right of reply to survey results released before election day.

The senator also cited the 1998 case of Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec, which in turn cited an American case which ruled that while there might be a right to reply in broadcast media, there is no right of reply in print media.

Santiago also said that the present wording of the bill gives the right of reply to any “accusation” or “criticism,” which are very broad terms.

“In effect, this is a penal statute and the Supreme Court might declare it unconstitutional on the basis of the void for vagueness doctrine, which requires punishable acts to be specified in detail,” she said.

Santiago also said that Philippine cases have adopted the rule in the landmark American case of New York Times v. Sullivan, that “public officials should not be onion-skinned.”

However, Santiago also noted that freedom of the press has sometimes been abused by corrupt journalists, particularly in cases where they are bribed by certain corrupt public relations firms to publish completely false rumors or insinuations against rivals of the PR clients.

“At the same time, we cannot ignore instances where phony news or feature stories in the front page are used to destroy the credibility of a public official, whose arguments on a public issue are so persuasive that they can only be demolished by character assassination. It has certainly happened to me, but I think the public has wised up to this form of corrupt journalism,” she said.

Santiago proposed that the committee should refer the bill to a technical working group of constitutional experts, and said she would support the bill if the unconstitutional provisions are amended.

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Transcript of Senator Miriam Defensor Santiago ’s interview

On Congress possibly investigating Meralco’s high power rates

Kailangan na talagang imbestigahan ang Meralco dahil napakataas ng binabayad natin sa kuryente, at mataas naman pala ang kinikita nila. Kukumbidahin ko ang chairman ng House committee on energy na sumama sa Senate energy committee para sabay na lang kaming mag-imbestiga. Nalaman ko na inutusan ni Speaker Nograles si Cong. Mikey Arroyo, na chair ng House committee on energy na imbestigahan ang maaring pagbabago sa pag-aari ng Meralco para matupad ang pagbababa ng bayad sa kuryente. Kung gayon Kinukumbida ko ang House committee on energy na sabay na lang kami ng imbestigasyon ngayong linggong ito, kung maaari sa Biyernes, para iisa na lang at hindi paulit-ulit.

Ang pinakamalaking tanong ditto ay bakit sa buong Asya tayo ang bansa na may pinakamataas na presyo ng kuryente, samantalang naibenta na ang isang bahagi ng Napocor at ibebenta pa ang naiwan.

Ang isa pang tanong ay kung bakit napakabagal ang pagpapa-privatize ng Napocor. Kung totoo ang sinasabi ng Pangulong Arroyo na bababa na ang pagbenta ng kuryente ng Napocor sa Meralco, bakit hindi natin nararamdaman na bumaba ang pagbayad natin sa Meralco. Dahil kung mura ang bili nila ng kuryente sa Napocor, na pag-aari ng gobyerno, dapat mura rin ang signil sa taong-bayan. Nakikita natin na may disconnect sa prosesong ito. At bakit kung nanakaw ang kuryente, iyong tinatawag na systems losses, bakit tayo ang magbabayad nito? Hindi naman natin ito napakinabangan. Dalawang beses nang sinabi ng Korte Suprema na masyadong mataas ang pagsingil ng kuryente ang Meralco. Inutsan pa itong ibalik ang Meralco na ibalik sa consumers ang binayad natin. Kung gayon, mayroong may kasalanan diyan Bakit walang imebstigasyon kung bakit mataas ang singil sa kuryente at kung sino ang may pananagutan doon? Lahat ito ay dapat masagot sa joint hearing ng committees of energy ng House at Senate.

There is no congruence in the explanation of the government that it has already lowered the sale price by Napocor to Meralco, and yet Meralco has not lowered its own selling price to the retail consumer. Why is there a disharmony between the process of generating power and bringing it to the consumer? That is the function of the JCPC under the Epira, to see to it that the electricity rates are set as low as possible. Apparently we have not achieved it. Meralco now is the focus of attention and what is stopping the power industry from lowering electric rates so that we can be competitive in the region.

What will be the objectives of the hearings?

If we want to insert more provisions in the Epira law, which is already under debate on the Senate floor. We are still in the process of seeing what kinds of amendments to the Epira will be made. And if we hold these hearings, the conclusion will take the form of possible amendments to the Epira law.

On the possibility of the baselines bills to be reassigned to another committee

Ang ating mungkahi diyan ay tapusin muna ang pag-aaral ng isang grupo ng mga eksperto, na tatawagin nating Congressional Commission on National Territory , at saka tayo gumawa ng public hearing at possible plernary debates tungkol sa bagay na iyon.

Kailangan ko talagang aksyunan ang baselines bills. Ang sinabi ko lang ay hindi ako papayag na madaliin iyon dahil ito ay napakalalim na paksa. Hindi maari na sukat pinag-usapan mo o inisip mo ay gagalaw ito dahil nakasalalay rin dito ang ibang bansa. Kaya dapat diyan ay pag-aralan nating mabuti.

This is really an international problem because it concerns the concept of the extended continental shelf. We need to understand this profoundly. We cannot act on the spur of the moment.

Since it involves a lot of issues, can the bills be tackled by the Committee of the Whole?

Iyan ang siguradong paraan na babagal ang discussion diyan. Una, dahil ang paksa na ito ay para sa mga dalubhasa, which requires highly expert opinions because we shall be debating in an international forum with experts from every country in the world. So we better be sure of our scientific, technical, and legal data. So in that case, we need to conduct it by committee, not by a committee of the whole.

Transcript of Senator Miriam Defensor Santiago ’s interview

On Malacanang’s move to lower electricity rates by taking over Meralco

Remember that the Supreme Court has already ruled that Meralco has overbilled its costumers. It is incumbent of the government to make sure that overbilling does not recur. Otherwise, we would be exercising a futile protest over post facto actions that are prejudicial to the consumer.

As chair of the Powercom, I can summon the chair of the ERC only after he has acted on the matter. We in Congress could not dictate how the ERC, which is an executive agency, should act on the matter.

Our position is this: the EPIRA law, for which the Powercom was established, clearly states as its mandate the lowering of electricity prices in the Philippines , which is one of the highest in Asia . Therefore, if state control of Meralco will result in lower electric costs, the Congress is bound by law to support that move.

In fact, I think Meralco issued a statement today that it will not hinder these moves, and will in fact support them. So it is just a question of methodology, there is no lowering electric prices because both sides appear to agree on that.

The methodology however is tricky. There are technical terms that need to be translated to the public to explain them in detail.

Normally, under the capitalist philosophy, the least participation of government if private business the better. But because the state has expressed official concern over the electric power industry by passing the EPIRA law, we shall allow matters with respect to electricity rates to be decided by the private sector based on good corporate management practices. But if the result for the consumer is significantly higher rates, then we just have to step in.

MIRIAM BATS FOR REGIONAL LABOR COURTS

Just before Labor Day, Senator Miriam Defensor Santiago filed Senate Bill No. 2207 to abolish the National Labor Relations Commission (NLRC) and instead create regional Courts of Labor Relations

“With courts in every region, the workers are assured of their constitutional right to speedy disposition of their complaints, and the employers will be spared long and costly litigation,” she said.

As of June of last year, the NLRC had a backlog of 7,736 cases—5,000 more than the preceding year.

The senator points out that the delay is due to a number of reasons. The first reason for delay is that of the 155 incumbent labor arbiters, 53 are assigned as “reviewers” in the Office of the Commissioners.

This leaves half of the labor arbiters to hear and resolve the average 31,000 cases filed per year in the arbitration branches.

Santiago said another cause for the delay in the disposition of labor cases was the Supreme Court decision in St. Martin Funeral Home v. NLRC where the Court allowed the Court of Appeals to review the decisions of the NLRC, adding another appellate body to review the decisions of the labor arbiters.

“In effect, the gestation period of labor cases was drastically increased, raising the frustration of both the workers and employers,” the senator said.

Santiago said that the slow disposition of labor disputes in the country produces a negative and crippling effect on our economy.

“One of the causes for the reluctance of foreign investors to come here is Philippine labor unrest. It is one of the causes for the pullout of businesses which relocated to other Asian countries,” she said.

To shorten the period of labor dispute resolution while complying with the Supreme Court’s ruling in the St. Martin case, Santiago proposes the establishment of regional Courts of Labor Relations, whose decisions and final orders will be directly appealable to the Court of Appeals. Under S.B. No. 2207, labor arbiters will be appointed judges of the Regional Court of Labor Relations, performing their functions under the disciplinary supervision of the Supreme Court.

The bill also aims to remove the exemption of labor cases from the Alternative Dispute Resolution Law, further shortening the resolution of labor disputes.

“Justice delayed is justice denied. This bill seeks to effectuate the constitutional right to a speedy trial, specially for our labor sector,” Santiago said.

-End-

MIRIAM URGES SPRATLYS PROTEST VS. TAIWAN

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, urged foreign affairs Sec. Alberto Romulo to send a note to Taiwan , through its Manila Economic and Cultural Office, to halt the proposed visit next week to the Spratly islands by Taiwan ’s defense chief and a group of legislators.

“The Philippines has good grounds to protest because it is a provocative act for Taiwan officials to visit their newly constructed airstrip on Taiping island in the Spratly chain,” the senator said.
Santiago said that the Taiwan visit to the Spratlys will violate the 2002 China-Asean Declaration on the Conduct of Parties in the South China Sea .

“Even if Taiwan is not a party to this Declaration, it has most likely evolved into regional customary international law, since it was signed six years ago by nine countries: China , Brunei , Cambodia , Indonesia , Malaysia , Myanmar , Philippines , Singapore , and Thailand . As customary international law, the Declaration binds all states in the Asian region, including non-parties,” she said.

Santiago explained that Taiwan was not invited to sign the Declaration, because China claims sovereignty over Taiwan , and China has insisted on a one-China policy in the United Nations.
The Declaration states “that the parties are committed to exploring ways for bringing trust and confidence on the basis of equality and mutual respect.”
The Declaration also commits the parties to “the freedom of navigation in and overflight above the South China Sea, as provided for by international law, including the 1982 UN Convention on the Law of the Sea.”

“The Taiwan airstrip jeopardizes the freedom of overflight above the Spratly chain. It is a provocative act and the Taiwanese visit there will add to the provocation. I hope that the foreign affairs department would be able to bring this controversy to the attention of President-elect Ma Ying-Jeou, before he takes office on May 20,” the senator said.

The Declaration binds the parties to exercise restraint and to hold dialogues and exchange of views between their defense and military officials.

“In our protest note, we should instead recommend that there should be dialogues between the Philippine defense secretary and armed forces chief of staff with their Taiwanese counterparts,” Santiago said.

-End-