Transcript of Sen. Santiago's interview

After the Senate Committee of Foreign Relations hearing on the ASEAN Charter

The Committee on foreign affairs has decided to circulate a committee report for signature by the members recommending Senate concurrence for the ratification of the ASEAN Charter. Today, we heard several criticisms mostly based on the fact that Burma has not released Daw Aung San Suu Kyi and therefore any ASEAN Charter should contain provisions that are stronger than what are contained in it at present. At present, there is a human rights body but the charter confines itself to its creation and its provision than its terms of reference, that means its implementing rules and regulations shall follow. At this point, there is no clear definition on what the human rights body is authorized to do. This human rights body was the initiative of the Philippines and therefore, on the part of the Philippines, there could be no accusation that the charter will be a paper tiger because the Philippines fought very bravely to include this provision in the charter. It is incumbent now on these ASEAN members to establish this human rights body and go after the Myanmar issue.

The second is related to the first. The main objection was why does the ASEAN Charter enshrine the policy of non-intervention in internal affairs? That’s a very simple question to answer. The UN charter began when it was formally submitted with a clause concerning domestic jurisdiction, in effect, the provision of non-intervention in the proposed ASEAN Charter is simply an echo of that provision in the UN charter. Non-intervention is a logical outcome of state sovereignty. No state will allow in any document to which it is a party to, to allow any certain foreign entity to interfere with how it runs its own government.

Basically, the objections are in the nature of idealism versus reality. We wish it were a more perfect document, but because of the variated cultures of our region, it is very difficult to get a consensus on a document that will govern with legal force the affairs of these member governments. That’s the best we could do at this moment.

Ambassador Rosario Manalo of the ASEAN Charter Task Force: The ASEAN Charter provides the Association with a legal basis--a legal personality--which means that one, we can sue and be sued if it is internationally recognized, and secondly, that state parties will have the obligation to comply with whatever agreements or decisions are taken.

We think that this is a move forward from the loose association into this rules-based organization. The purpose of the Charter is to have the organization set up an ASEAN community which will be more effective in addressing the challenges and the risks confronting the region and the globalized world.

The Charter by itself is just a framework. It is envisioned that there will be subsequent protocols to flesh out the provisions of the charter. It is not an all-cure for certain, but it is certainly a base to build and strengthen further the region of the member states of Southeast Asia.

Commissioner Quisimbing of the Commission on Human Rights on why the Philippines supports the charter: The CHR welcomes the hearing on the Committee on Foreign Relations as well as your just announced intent to recommend the ratification to the committee members.

The criticism of the charter is that it sets up an ASEAN human rights mechanism but is vague on what its powers are going to be and what its mandate is going to be. However, this is the first time in history that an ASEAN body is even thinking of having a human rights body. Asia is the only region in the world that does not have a human rights body. We see this as a very important step and welcome the fact that the Philippines is the one that championed putting this into the charter and convinced countries like Myanmar, Laos and Vietnam, which are less democratic, to even let it be put in this important charter for ASEAN. We do not expect that something as specific as the power of who will be members of an ASEAN mechanism, will be put in this. We can look at the Charter as a constitution, and as Ambassador Manalo said, the details of such a mechanism can be put down in future documents.

We in the Philippines, with our human rights orientation and our pledge to the UN to champion regional human rights cooperation and protection, will work for a strong mechanism, not one that’s just going to be advisory, all of that is still open for discussion. But the fact is all ten countries of ASEAN have agreed to at least take this very important step.

The ASEAN Charter is a legally binding document that is why we are pushing for it. Today, there is no such document or understanding that could provide the legal power to enable the rest of ASEAN to see to it that Myanmar complies with human rights laws. All the ten member states will comply if the ASEAN makes a declaration or issues a decision to take a certain course of action.

MIRIAM: SENATE TO CONCUR WITH ASEAN CHARTER

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, said that she will submit by next month her committee report recommending Senate concurrence with the Asean charter, and expects Senate concurrence before the end of the year.

“If all ten member states ratify the charter by December, it will enter into force in 2009. Thus, Asean will ratify its constitution even ahead of the European Union, whose charter was rejected by two countries,” the senator said.

Of the ten Asean members, seven have already ratified the charter, while three countries including the Philippines are engaged in the process of ratification.

The ten Asean members are: Brunei Darussalam, Cambodia , Indonesia , Laos , Myanmar , Malaysia , the Philippines , Singapore , Thailand , and Vietnam .

“It was the Philippines that first proposed the Asean charter in the 1970s. To be consistent, the Senate should concur. The Asean charter is a treaty and is therefore binding,” she said.

Santiago said that although the Asean charter includes the principle of non-interference in the internal affairs of member states, it will speak out on humanitarian or self-defense events, such as the release of Daw Aung San Suu Kyi in Myanmar .

“It was also the Philippines who took the initiative in providing for an Asean human rights body, now part of the charter. If Myanmar ratifies the charter, it will be obliged to comply with its provisions and all other Asean agreements,” she said.

Santiago said the Asean Human Rights Body will enable Asean to stop depending on foreign human rights monitors, and instead manifest to the world Southeast Asian regional perspectives on human rights.

“The charter also enshrines the so-called Asean Way of settling differences, meaning consultation and consensus. This is the basic decision-making principle in Asean,” she said.

“The main tangible result of the charter will be the creation of an Asean Economic Community. This means the creation of a single market and product base. In the Asean Economic Community, there will be free flow of goods, services, investments, and capital. It will also facilitate movement of business persons, professionals, talents, and labor,” Santiago said.

The charter provision for the creation of an Asean Economic Community is a direct result of the Asean Economic Community blueprint signed in Cebu last year, when President Arroyo presided at the Asean Summit.

“The emergence of China and India as economic powers has created new realities for Asean. The Asean Economic Community will keep the Philippines competitive alongside these two Asian giants. The Asean Economic Community will be established by 2015,” Santiago said.

MIRIAM ELEVATES PREMATURE CAMPAIGN BAN TO SC

Senator Miriam Defensor Santiago took her fight against premature campaign advertisements by filing a petition for certiorari with the Supreme Court.

Earlier, Santiago filed a similar petition with the Commission on Elections (Comelec), which was dismissed with a comment that the Comelec is not the proper forum to resolve the constitutional issue she raised.

Santiago, a constitutional law expert, argues that allowing rich and influential candidates to advertise themselves two years before the campaign period violated the equal protection clause of the Constitution.

Santiago’s petition contains nine arguments:

• The Comelec gravely erred in failing to apply the primary jurisdiction doctrine provided by the Constitution, when it dismissed Santiago’s earlier petition by transferring the burden of resolving the case to the SC;
  
• The Comelec gravely erred when it chose to ignore the glaring conflict between Section 79 and Section 80 of the Election Code, in effect abdicating the policy of the law to make sure that no candidate unfairly campaigns ahead of others by sheer audacity and mental dishonesty, making it appear that the ban applies only to a person who files a certificate of candidacy.
  
  Section 79 of the Election Code defines the terms “candidate” as a person who has filed a certificate of candidacy. The same section defines “election campaign” as “an act designed to promote the election or defeat of a particular candidate or candidates”. Section 80, on the other hand, defines premature campaigning by imposing a ban on “any person, whether or not a voter or a candidate.”
  
• The Comelec gravely erred in failing to resolve the conflict between Sections 79 and 80 in favor of Section 80 of the Election Code, inviting unscrupulous politicians to circumvent the prohibition against premature campaigning by filing his or her certificate of candidacy in the last day before the start of the campaign period to avoid prosecution;
  
• The Comelec gravely erred in ruling that the ordinary meaning of Section 79 must apply, as a result, gravely ignoring the true intention of the law which is to provide equal opportunity to all candidates in the election;
  
• The Comelec gravely erred in failing to recognize that the SC, in Chavez v. Comelec,did not resolve the conflict between Sec. 70 and 80 of the Election Code. The SC’s decision simply stopped at an isolated reading of Section 79 and did not proceed to the logical conclusion dictated by the applicable rules of statutory construction that demanded an application of Section 80;
  
• The Comelec gravely erred in failing to recognize that neither did Lanot vs. Comelec resolve the conflict. While the SC, in its decision, recognized that an absurd conclusion results when the law is interpreted to mean that a person who has not yet filed a certificate of candidacy is not yet a candidate, it stopped short of definitively resolving the conflict between Sections 79 and 80 of the Election Code;
  
• The Comelec gravely erred in failing to recognize that the defense of free speech and free expression cannot be invoked to shield the circumvention of the Omnibus Election Code (the right to free speech and free expression cannot be exploited to exonerate unlawful electioneering);
  
• The Comelec gravely erred in failing to accept that the exceptions under Section 80 of the Election Code no longer apply because of certain changes in electoral practices, such as the 1987 Constitution’s rejection of the two-party system, which was then valid when the Election Code was written;
  
• The Comelec gravely erred in ignoring the Equal Protection Clause of the Constitution. Under the Equal Protection Clause, our Constitution prohibits a statute to favor one class of candidates–-those who have the influence and money–-over another class – those do not have the same influence and money to engage in premature political advertising. In effect, a statute which discriminates between its subjects makes a classification where there is no “rational relationship” between legislative means and ends.

Santiago earlier slammed the Comelec for being “fainthearted” and “timid” when the commission dismissed her petition and refused to ban campaign activities by presidential wannabes.

MIRIAM OK WITH LUMAD AUTONOMOUS REGION

Sen. Miriam Defensor Santiago, a constitutional law expert, said that the Constitution allows Congress to pass a law creating a Lumad Autonomous Region.

“In fact, the Constitution not merely allows but orders the creation of autonomous regions in Muslim Mindanao. However, the Constitution does not say that the autonomous regions shall be confined to Muslim areas only,” she said.

Santiago said that a bill embodying the proper organic act has to be filed in Congress, and should first show compliance with the constitutional requirement that the Lumad share “common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics.”

The senator said that a Lumad Autonomous Region is also supported by the constitutional policy that “the State recognizes and promotes the rights of indigenous cultural communities.”

In another development, Santiago said that it is only the Supreme Court which can decide whether to suspend proceedings questioning the constitutionality of the MOA-AD which creates the Bangsamoro Juridical Entity.

“The American experience is not applicable, because the cases were suspended during the civil war, and then during a world war. What we have in Mindanao is merely an insurgency,” she said.

Santiago said that the petitioners should respect President Arroyo’s statement that the government would renegotiate the MOA-AD with the MILF, thus rendering the petition moot.

“While the power to determine foreign policy is shared by the President and the Congress, it is only the President who speaks on behalf of the entire country in foreign affairs. It would be unwise to preempt her,” she said.

Santiago also stressed that greater autonomy for the Bangsamoro, even under a federal system, would not give them the right to secede from the Philippines .

“The Constitution explicitly provides that autonomous regions shall operate within the framework of the Constitution, national sovereignty, and territorial integrity,” she said.

Santiago said that it was “ill-advised” for the GRP panel to agree to the term “Memorandum of Agreement” or MOA.

“The GRP Panel should have insisted on the term ‘Memorandum of Understanding,’ or MOU. On the one hand, an MOA normally indicates an intent to be bound. On the other hand, an MOU is normally a set of unilateral interpretations of a treaty under negotiation,” the senator said.

Santiago said that if the Supreme Court proceeds to rule on the constitutionality of the MOA-AD, it will consider two factors: the content of the MOA; and the evidence of the intent of its makers.

“In reporting on the development of autonomous regions, we should avoid using the international law term ‘self-determination.’ It refers merely to decolonization. Instead, we should use the constitutional law term ‘autonomous region.’ It refers to the territorial integrity of our country,” she said.

MIRIAM PUSHES FOR PHILIPPINE STANDARD TIME

It’s about time.

Aiming to synchronize the functions government agencies through a single time reference, Sen. Miriam Defensor Santiago filed Senate Bill No. 2535, also known as the One Time Philippines Act.

“Discrepancies in time between government agencies have led to unnecessary friction brought about by the disparate interpretation of schedules and their observance,” Santiago said.

Under the proposed law, all government offices, government-owned corporations and local governments are compelled to observe and maintain their schedules according to a Philippine Standard Time (PST). The bill also encourages the private sector to follow suit.

“A definite time reference would remove inefficiencies brought about by different interpretations of time, particularly among government offices,” Santiago said.

The bill mandates the Philippine Atmospherical Geophysical Services Administration (PAG-ASA) to establish the PST. Presidential Decree No. 78 has designated PAG-ASA as the official time service agency of the country.

Santiago recently secured new Senate rules to punish absent or late senators, and to prevent them from delaying the passage of bills. The Senate also approved her motion for sessions to start promptly at 3:00 p.m.

JPEPA HAS NUMBERS

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, said that Senate concurrence on Jpepa is “virtually assured,” because 14 senators have already signed the committee report.

“The required two-thirds vote of the Senate is only 15 senators, so we only need one more vote. That won’t be hard, because the issue of constitutionality has already been settled,” she said.

Santiago said that just a few days ago, Japanese foreign minister Masahiko Komura authorized Ambassador Makoto Katsura to sign an exchange of notes with foreign affairs secretary Alberto Romulo, in effect amending the treaty.

“The result of the exchange of notes will be that all Philippine constitutional provisions reserving certain economic activities to Filipinos and to corporations 60% Filipino owned shall prevail over Jpepa,” she said.

Santiago said that in effect, the exchange of notes will cancel the Jpepa provision that Japanese in our country would get “national treatment” – meaning, the same treatment as Filipinos in investment activities.

“Our national patrimony and natural resources will remain safely in Filipino hands,” she said.

Santiago said that pursuant to the RP Constitution, many areas of economic activity will continue to be reserved to Filipinos, such as land ownership, use of natural resources, operation of public utilities, practice of all professions, ownership of schools, of mass media, of advertising industry, etc.

“Under the Vienna Convention on the Law of Treaties, Art. 13, an exchange of notes in effect constitutes a treaty in itself, provided it states that the exchange shall have that effect,” she said.

Santiago said that Jpepa might be RP’s most important bilateral economic agreement in the last 50 years.

“Agriculture and exports will be the biggest winners. The treaty will immediately have a positive impact on farmers, fishermen, and food processors,” she said.

Santiago said that the moment Jpepa becomes effective, immediately 95% of RP exports to Japan will enjoy zero duties.

“ Japan has already concluded similar economic partnership agreements (EPAs) with Singapore , Mexico , Malaysia , Thailand , Chile , Brunei , and Indonesia ,” she said.

Santiago said that Japan will certainly increase its foreign direct investment (FDI) in RP, which in 2002-2006 already amounted to US$938 million.

“Japan is our biggest source of official development assistance (ODA) which in 2006 already amounted to US$4.7 billion. With Jpepa, ODA will get even bigger,” she said.

Santiago said that with Jpepa, RP exports to Japan is expected to reach $405 million or P 559 billion by 2011.

“Although there will be zero tariffs on 145 waste products, they cannot come in, because they are banned by R.A. No. 6969 on toxic wastes, and R.A. No.9003 on ecological solid wastes,” she said.

Santiago also said that both countries are bound by the 2007 exchange of notes between the RP and Japanese foreign ministers, stating that “Japan would not be exporting wastes to RP, in accordance with the Basel Convention” on the control of transboundary moment of hazardous wastes.

The 14 senators who signed the committee report were: Sen. Santiago, Roxas, Angara , Arroyo, Enrile, Gordon, Lapid, Revilla, Zubiri, Biazon, Legarda, Estrada, Pangilinan, and Pimentel. All had reservations except Angara and Enrile.

The 5 senators who did not sign were: Honasan, Madrigal, Trillanes, Pia Cayetano, and Escudero.

MIRIAM SLAMS “TIMID” COMELEC

Senator Miriam Defensor Santiago said she will appeal by certiorari to the Supreme Court the Commission on Elections’ (Comelec) resolution refusing to ban campaign billboards by presidential wannabes.

“The Comelec resolution is timid, literal, and non-responsive,” Santiago said.

Santiago criticized the Comelec for its descriptive rather than analytical style of interpreting the law, calling it a glaring deficiency.

“In this sense, it is not only old-fashioned, but also calcified,” she said.

The senator accused the Comelec of abdicating its constitutional responsibility because it did not recommend to Congress effective measures to prevent election malpractices as required by the Constitution.

“The Comelec says a premature campaign is ignoble. But in effect, they don’t want to offend anybody, so they’ll just pass the buck to the Supreme Court,” the senator said.

Santiago also criticized the Comelec’s “muddled thinking” when the Commission agreed that the issue involves two conflicting provisions of the Election Code on the one hand, while claiming that the law is allegedly clear on the other.

According to Santiago , the rules of statutory construction exist so that a primary agency like the Comelec can interpret the law without throwing everything to the Supreme Court.

“That is the primary-jurisdiction doctrine. They blithely ignored it. And what happened to my equal-protection argument? They were fainthearted, so they ignored it, too,” she said.

Santiago said that she was very sad and disturbed by the Comelec’s refusal to administer and enforce the law. “Their smug attitude just makes me feel tired. I get depressed with this kind of self-righteous passive resistance to reform in our country,” the senator said.

Santiago’s appeal will be handled by her law office since the senator will be busy until November with her campaign for a seat in the International Court of Justice.

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MIRIAM SUPPORTS CABRAL ON REPRODUCTIVE HEALTH

Senator Miriam Defensor Santiago, an educated lay theologian, said that she supports the position taken by Social Welfare Secretary Esperanza Cabral favoring reproductive health.

“I take the position that there is an individual right to use artificial contraception, such as condoms,” she said.

Santiago said that the Catholic insistence on natural contraception is outdated and archaic, and explained that Catholic teaching is evolutionary, for example in the cases of religious liberty and of usury.

“The Catholic religious should get real,” Santiago said, recalling that the natural-law mentality of the Church in the Middle Ages prohibited many advances in medical science.

In 1966, the Papal Commission majority report argued that the conjugal act must be viewed not as an isolated reality, but in the larger context of human love, family life, and education, among other things.

“This is the principle of totality. Sexuality is not meant only for procreation,” Santiago said.

She said that the final report of the Papal Birth Control Commission and the Vatican 2 insisted that the decision to have children must take into account the welfare of the spouses and their children, the material and spiritual conditions of the times, their state in life, the interests of the family group, of society, and of the Church.

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