MIRIAM: NAME SOLONS IN SECRET BUDGET INSERTS

Sen. Miriam Defensor Santiago, vice-chair of the Senate finance committee, said that if congressional insertions are made on the floor in plenary session, they are regular; but if they are made at the secret bicameral meetings, they are irregular and their authors should come forward and identify themselves.

She said that apparently, Senate President Manny Villar initiated the congressional insertion during the period of amendment on the floor in plenary session, which renders it regular.

Santiago issued the dare to other solons during the public hearing yesterday on the budget process, particularly on the alleged double entry for the C-5 extension project.

The exasperated Santiago issued the call for solons to identify themselves voluntarily, after budget secretary Rolando Andaya, Jr. refused to release the names of the legislators who made the congressional insertions, during the bicameral meetings.

Andaya also failed to give Santiago his estimate of the total congressional initiatives, after admitting that in the public works budget alone, the initiatives totaled P17.5 billion.

On Santiago ’s question, public works secretary Hermogenes Ebdane said that the total budget cost of the controversial Garcia Ave. Extension from SLEX to Sucat road, including right of way, is P 4.49 billion.

During the hearing, Santiago and Sen. Juan Ponce Enrile, chair of the Senate finance committee, disagreed on the respective roles of the President and the Congress in jointly exercising the “power of the purse.”

Enrile said that the President’s budget is merely a working draft, and is not binding on Congress.

Santiago said that since the President’s budget is the result of the collective expertise of the budget department, finance department, and the NEDA, it should be respected and, as much as possible, should be left intact.

“Massive congressional insertions embedded in the 2008 budget during the secret bicam meetings changed beyond recognition the priorities observed by the executive branch,” she said.

The feisty senator said that she respectfully dissented from Enrile’s view, “at the risk of being smacked by my elder and better.” The two senators were seated side by side, but were amicable.

Santiago said budget amendments made on the floor are regular, but if made in the secret bicam meetings, they are “devious and suspicious.”

Santiago said that this week she will file her bill called Legislative Transparency and Accountability Act of 2008, with certain features which she strongly advocated during the hearing.

“Congressmen who propose an earmark should be identified,” she said.

Santiago said all bicameral conference committee reports should include a list of all earmarks in the budget.

“To observe the constitutional duty of transparency, the bicameral conference committee report on the budget, including the list of earmarks, should be made available to the Senate and to the general public on the internet for at least 24 hours before its consideration in plenary session,” she said.

Santiago said that every earmark proposal should be accompanied by an explanation of its essential government purpose.

“I am also considering adopting the American law and filing a Funding Accountability and Transparency Act,” she said.

Santiago said that her second bill will require the DBP to create a searchable data base of all government-appropriated funds and their recipients.

In her opening statement at the hearing, Santiago told the TV audience that what we in the Philippines call “congressional insertions” are in the U.S. called “earmarks.”

“Even in the U.S. , the executive and legislative branches cannot agree on the definition of ‘earmarks,’ which we call congressional insertions,” she said.

Santiago said that on the one hand, the U.S. executive branch, through the Office of Management and Budget, defines earmarks as “funds provided by the Congress for projects where the congressional direction circumvents executive branch merit-based or competitive allocation processes, or specifies the location or recipient, or otherwise curtails the ability of the executive branch to manage critical aspects of the fund’s allocation process.”

Santiago said that on the other hand, the U.S. legislative branch, through the Congressional Research Service, defines an earmark as a provision that specifies certain congressional spending priorities and may appear either in the text of the budget or the report of the bicameral conference committee on the budget.

“The issue of congressional insertions is paramount. Thus, earmarks figured in the first round of the U.S. presidential debate between McCain and Obama, and earmarks are being raised as an issue against vice-presidentiable Sarah Palin,” she said.

MIRIAM SUMMONS “300 SPARTANS” FOR ASEAN CHARTER CONCURRENCE

Senator Miriam Defensor Santiago, chair of the Senate Committee of Foreign Relations, urged her colleagues yesterday to concur with the Association of Southeast Asian Nations (ASEAN) Charter.

“Just like the 300 Spartans of King Leonidas who battled thousands of Persians in 480 BC, ASEAN could similarly form a phalanx vis-a-vis the rampaging onslaught of the dark side of globalization, and reap the dividends from it—freedom, peace, stability, and economic progress,” Santiago said in her speech in the Senate.

According to Santiago , the Philippines will benefit from ASEAN Charter’s concurrence because the Charter encourages increased trade and investment and binds ASEAN states to implement all ASEAN decisions and agreements in a timely manner.

“This means agreements such as the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers and its subsequent agreements would have to be enforced,” she said.

The Charter also creates the ASEAN Human Rights Body that seeks to promote and protect human rights and fundamental freedoms in the region, and aims to contribute to the world a regional perspective on human rights.

Santiago also emphasized the benefits of the ASEAN Charter in the maintenance of peace and order, and the promotion of democracy, good governance, and the rule of law in the region. As the ASEAN Charter streamlines its organizational structure, it maintains the inter-governmental nature of cooperation among its members and provides for a more systematic in the settlement of disputes between its members.

“The ASEAN needs to transform itself from a loosely-organized regional body into a more rules-based grouping with a legal personality of its own,” she said.

MIRIAM TO LEAD AD HOC BODY FOR NEW SENATE BUILDING

Sen. Miriam Defensor Santiago, vice-chair of the Senate Committee on Finance, has volunteered to chair a temporary committee to supervise efforts to implement a plan to construct a new Senate office building.

In her letter to Senate President Manny Villar, Santiago stated that she has no direct or indirect financial interest in the project since she does not intend to run for reelection in 2010.

She recommended Senators Juan Ponce Enrile and Aquilino Pimentel as members of the ad hoc body.

In her Senate Resolution No. 640, Santiago pointed out that the Senate is currently spending P7.78 million a month to rent the Government Service Insurance System (GSIS) building in Pasay, and about half a million pesos to rent the parking space since its transfer from the Old Congress Building in Burgos Street in Manila. This totals P8.29 million a month or around P100 million for the whole year.
Moreover, some senators also maintain satellite offices to accommodate all their staff including their files, translating to roughly half a million pesos in additional Senate expenses.

“Considering all these expenses, it would be reasonable to explore the feasibility of constructing a new Senate building,” Santiago said.

Santiago’s proposal coincided with the start of the Senate finance committee hearings on the 2009 national budget. The Department of Budget and Management proposed a P1.94 billion budget for the Senate.

Both the House of Representatives and the Senate occupied the Old Congress Building in Manila from 1926 to 1945 where the Senate occupied the upper floors while the House occupied the lower portion.

In 1987, the Senate obtained the use of the Commission on Audit-National Capital Region Office(COA-NCR) Building in the Batasan area and started construction of the building intended for the Secretariat

Although spending more than P41 million for improvement of the land, building and other structures, the Senate discontinued the construction and turned over the COA-NCR Building to the Senate Electoral Tribunal and the House of Representatives Electoral Tribunal.

MIRIAM BARES P 11.5 B SECRET PORK

Sen. Miriam Defensor Santiago, vice-chair of the Senate finance committee, said that the 2008 budget was allegedly bloated by P11.5 billion for public works projects, which were secretly inserted by means of so-called “congressional insertions.”

“The life of an appropriation is two years. In 2009, President Arroyo may release these P11.5 billion insertions. By 2010, each project may continue to be implemented. Hence, I strongly suspect that most of these secret projects are going to be used by incumbent legislators for the 2010 elections,” she said.

Santiago also said that among the congressional insertions, P 7.9 billion are large lump-sum appropriations.

“The question is who will determine which project will be funded out of the two lump-sum funds. They should be subjected to the usual social benefit-cost analysis. This could be a standing invitation to corruption,” she said.

Santiago slammed certain projects allegedly initiated by individual legislators, although they have “low economic return.”

“The most glaring low-priority project is the construction of so-called multipurpose buildings, which reached a total of P131.1 million,” she said.

Santiago also hit individual legislators who initiated certain projects that she said “should be better done by local governments or government-owned corporations, like the Local Water Utilities Administration.”

Among these “rich potentials for kickbacks” that she cited are public markets in: Tabaco City ; San Vicente, Ilocos Sur; Arayat, Pampanga; and Mahayag, Zamboanga del Sur.

“There is even a lump-sum appropriation of P165 million for Other Buildings. These are projects that have not even been identified yet. Since it is a lump sum, it is most likely subject to abuse,” she said.

Santiago said that certain projects which are best done through the Local Water Utilities Administration, but which are included in the 2008 budget are the water systems in: Pangasinan, fifth district; Bataan, second district; Muñoz, Nueva Ecija; Negros Oriental, first district; Negros Oriental, third district; Dumingag, Zamboanga del Sur; and South Cotabato, second district.

MIRIAM: BUDGET INSERTS VIOLATE CHARTER

Sen. Miriam Defensor Santiago slammed as unconstitutional the practice of amending the budget by means of secret closed-door sessions of the bicameral conference committee.

Santiago , a constitutional law expert and former UP constitutional law professor, cited the 1994 case of Tolentino v. Secretary of Finance, where the Supreme Court was badly divided on the issue of budgetary insertions.

However, she said that the majority vote does not constitute binding precedent, because the ratio decidendi (or reason for deciding the case) was not about congressional insertions, but about the VAT.

“Chief Justice Reynato Puno, who was then an associate justice, said in his dissent that the bicameral conference committee does not have the power to add or delete provisions in a budget already approved on third reading by both Houses. He said that the bicam does not have an ex post veto power,” Santiago said.

If a case to question the constitutionality of secret budget insertions would be brought today, Santiago predicted that Chief Justice Puno would rule that such secret inserts are unconstitutional.

“In his dissent, the Chief Justice said that there is no constitutional provision, law, rule, or regulation that allows congressional insertions. I respectfully concur with this statement,” she said.

Santiago said that Puno also observed that the secret additions and deletions are not submitted separately for approval in the plenary session. Instead, they are “hidden” in the entire budget.

“Many of my colleagues in Congress claim that congressional insertions constitute a legislative custom. Granting for the sake of argument that it is a legislative custom, still it must follow the hierarchy of sources of legislative rules of procedure,” she said.

Santiago said the principal sources of procedural rules are followed in the following order: Constitution, law, rules, judicial decisions, parliamentary authority, parliamentary law, customs and usages.

Santiago said the best authority on the unconstitutionality of congressional insertions is the dissent by then Justice Hilario Davide, who ruled that the duty of the bicam is limited to the reconciliation of disagreeing provisions.

Santiago also cited the dissent of her former UP law professor, retired Justice Flerida Ruth Romero, who cited the parliamentary authority Jefferson’s Manual, stating that the bicam must confine themselves to the differences in the House and Senate versions.

“The conference committee is transformed into an all-powerful Frankenstein that brooks no challenge to its authority, even from its own members. Their power lies chiefly in the fact that reports of conference committees must be accepted with the amendments or else rejected in toto,” Santiago quoted from the Romero dissent.

Santiago said Romero ruled that congressional insertions transfer the lawmaking power to a small group of members who work out in private a decision that usually prevails.

“Insertion of new matter on the part of the bicam is, therefore, an ultra vires act which makes the same void,” Santiago quoted the Romero decision.

BUDGET PROCESS SHOULD BE TRANSPARENT

Privilege speech on 16 September 2008

The C-5 Extension Controversy

The 2008 budget, aka Republic Act No. 9498, or the General Appropriations Act for Fiscal Year 2008, appropriated the sum of P200 million for the C-5 extension in two entries. One is found on page 563 and the other is found on page 646. It appears to me that the explanation is that both are valid entries, because each one constitutes an installment on the total amount of appropriation which was reportedly estimated at P 4 billion. This budget has been approved both by Congress and the President.

It appears that the center of this controversy is not the Senate President, but the Department of Budget and Management. It is the responsibility of the Secretary of Budget and Management and the Office of the Executive Secretary, with the assistance of the line departments, to review the enrolled copy of the GAA, identify the differences in the proposed President’s Budget and proposed budget as approved by Congress, and recommend appropriate actions for the identified differences and the budget in its entirety.

The process can be described as follows:

First, the key DBM officials are mobilized to identify the changes made on the President’s Budget. They consult with line agencies and produce a document called Statement of Difference.

Second, appropriate recommendations are prepared for each item of difference. Some changes may be allowed (this shows respect for the legislature, recognizing that the executive department does not have a monopoly of good ideas), others vetoed expressly, and others may be mentioned under Observations.

Third, the Deputy Executive Secretary for Legal Affairs reviews the draft veto message.

Fourth, the draft veto message is discussed informally with the chairperson of the House appropriations committee. This step is optional but recommended in order to maintain good working relationship with members of Congress and avoid an override of the veto.

In the light of the process I have just outlined, I reach the following conclusions and observations:

First, Congress inserted a new budget item worth P200 million, at the request of a legislator.

Second, the Secretary of Budget and Management confirmed that there was double appropriation but that no funds will be released for the second appropriation. This raises the following questions. If there were double appropriation, why didn’t the DBM Secretary recommend a line-item veto of the redundant budget item? How can his statement be reconciled with the alleged statement by DPWH authorities that the road project has two components, including a flyover, which necessitated the additional P200 million?

Third, the additional appropriation for the C-5 road project still stands. It might be used to form part of the ‘general savings’ and then realigned to augment any existing item in the budget – including the original C-5 road project proposed in the President’s Budget.

Fourth, the ‘double appropriation’ for the C-5 road project casts serious doubt on the integrity of the FY 2008 general appropriations act. Hence, yesterday I filed a resolution for this Congress to create an independent group to review the FY 2008 GAA in its entirety, and to recommend measures to prevent double appropriation in the future.

Reforms in Congressional Insertions

A strict interpretation of budgetary powers of Congress is that it has the power to cut, but not add to or initiate, the funding of programs and projects not proposed in the President’s Budget. The Constitution provides that Congress may decrease but not increase the budget as proposed by the President. A strict interpretation of this provision is that it applies not only to the aggregate level of the budget, but also to the proposed budget for every program or project contained in the President’s Budget. This strict interpretation has long been abandoned.

It is now accepted practice that Congress may cut the appropriation for any program or project of the President’s Budget, and use the pool of appropriation cuts to increase (augment) the budget of any proposed – or even new – items in the President’s Budget. For example, the budget for fertilizer subsidy may be reduced by P100M and then use the cut to increase the appropriations for a proposed road Alpha (say from P100 to P200M) or use the P100M to fund congressional initiatives (say P50M for road Beta and P50M for road Omega).

Abstracting from the constitutionality of the current practice, what is inherently wrong in the current practice is the lack of transparency and the abuse of authority of the conference committee.

I humbly submit that the current practice violates the Constitution, Article 3, aka Bill of Rights:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

I am not aware that Congress has passed any law limiting this constitutional right with respect to the budget process.

First Reform: Three days’ Notice of Bicam Decisions

The proceedings of the bicameral conference committee, which political analysts call the “third chamber”, are conducted under the most secretive environment. There are no minutes of proceedings. Only the co-chairpersons and the members of the bicameral committee can now identify, from memory, who initiated a particular change and how the committee addressed it. During the last bicameral committee meeting, the matter of reconciling the House and Senate versions of the appropriations bill was delegated to the respective heads of the House and Senate contingents. On the one hand, this ‘four-eyes’ arrangement facilitates decision-making; on the other hand, it heightens the lack of transparency of the whole process.

I submit that for good governance, promoting transparency should take precedence to speedy decision-making. The following rule should be adopted: all decisions made by the conference committee should be printed and circulated to members of both houses of Congress three days before the final ratification of the bicameral committee report.

Second Reform: Limit Bicam to Reconciliation of Disagreeing Provisions

The bicameral committee is mandated to reconcile conflicting provisions of the House version and the Senate version of the appropriations bill. Yet, it is not uncommon to find in past conference committee decisions where new changes are introduced in the proposed, although they are not contained in either the House version or the Senate version of the bill.

For example, under current rules, with a budget proposal of P1.0 trillion pesos, the House may approve a P 900 billion budget (with a cut of P100 billion), while the Senate may cut deeper and approve a P850 billion budget, and yet the conference committee may agree to approve a P1.0 trillion-peso budget. There is no assurance, however, that the composition of the P1-trillion bicameral-committee approved budget would be the same as the composition of the P1 trillion President’s Budget. The P900 million House-approved appropriations bill may contain congressional initiatives totaling P10 billion; the P850 million Senate-approved appropriations bill may contain additional congressional initiatives totaling P5 billion; yet, the final appropriations bill as recommended by the bicameral conference committee may contain a total of P20 billion congressional initiatives. Hence, the bicameral conference committee goes beyond reconciling the differences between the House and Senate versions of the budget bill. It introduces budget items that are non-existent in both budget bills, under the most secretive conditions.

The following rule should be introduced: the mandate of the bicameral conference committee shall be limited to reconciling the disagreeing provisions of the House and Senate versions of the appropriations bill. No new budget programs, projects and activities shall be introduced during the process of budget reconciliation.

Third Reform: Limit Amount of Congressional Insertions

Like the pork barrel, the congressional insertions which are usually made in the budget of the DPWH, should be limited to a uniform amount for members of the Senate, and to a uniform amount for members of the House. And just like the pork barrel, the practice of congressional insertions should be made available to all legislators wishing to avail of it.

Fourth Reform: Indicate Installment Number

The budget should indicate if an appropriation is part of a multi-year “installment plan.” If the total amount for a public works project is too big to be appropriated in one budget alone, it might be appropriated in several budgets at smaller installments. In this case, every appropriation should be marked as “Installment 1.” Thus, we shall avoid public suspicion of an improper double entry.

MIRIAM: EXPOSE BUDGET INSERTS

Sen. Miriam Defensor Santiago, in a privilege speech yesterday, said that it is unconstitutional for Congress to keep secret the budget process, thus leading to abuses of authority during the bicameral conference.

“All decisions made by the bicameral conference should be printed and circulated to members of both houses of Congress three days before the panel’s ratification of the bicameral committee report,” she said.

Santiago said the bicameral committee members often abuse their authority.

“With the budget, the bicam not only reconciles the differences between the House and the Senate versions. Under the most secretive conditions, the conference introduces budget items that did not exist in any version,” she said.

Santiago said that to make the budget process transparent, the bicam should be limited to reconciling the disagreeing provisions of the House and the Senate versions.

“No new budget programs, projects, and activities should be introduced during the process of budget reconciliation,” she said.

Santiago urged the media to expose all congressional initiatives every year- end, listing the legislators, the public works projects, and the amounts.

“Even I, a senator no less, was refused by the Legislative Budget Review and Monitoring Office (LBRMO) when I asked for such a list yesterday,” she said.

Santiago said refusal to give her the information violates the “constitutionally protected right of the public to information on matters of public concern.”

Santiago said it was the second time that the LBRMO refused to give her information, the first having been her request for the names of senators, if any, who have returned to the Senate at yearend any excess money from their Maintenance and Other Operating Expenses (MOOE).

In her first year as senator in 1996, Santiago returned her excess fund, but was severely criticized by her then colleagues in the Senate for alleged breach of confidentiality.

“Congressional insertions are part of the amendment process of the budget, but like pork barrel funds, they should be revealed to the public with respect to recipients and amounts,” she said.

Santiago also urged the two finance chairs – Sen. Juan Ponce Enrile and Rep. Edcel Lagman – to ensure that the budget indicates if an appropriation is part of a multi-year “installment plan.”

“For example, if the C-5 extension project really costs P 4 billion to be paid in annual installments, then every appropriation should be marked as ‘Installment 1,’ and so on. That way, we shall avoid public suspicion of an improper double entry,” she said.

Santiago said that Senate Pres. Manny Villar was not necessarily culpable, if he requested the congressional insertion of another P200 million for the same project that had already been given the same amount in another page.

“It appears that there were double entries, because the first entry was one installment, and the second entry was another installment on the total amount appropriated for the same project,” she said.

Santiago proposed that the Senate President and the Speaker should agree on a policy of self-restraint and public disclosure, by adopting the policy of notifying each legislator that each one is entitled to a congressional insertion uniformly limited in amount.

“Congressional insertions are objectionable, because they are done secretly, and some senators get more money than others, while others do not even ask for anything at all,” she said.

Santiago was one of few senators named by Sen. Enrile as those who did not make any congressional insertions for the 2005 budget.

MIRIAM SPONSORS THE AVOIDANCE OF DOUBLE TAXATION TREATIES

Senator Miriam Defensor Santiago, chair of the Senate Committee on Foreign Relations, delivered a sponsorship speech supporting the resolutions amending three bilateral Double Taxation Agreements (DTA) between the Philippines and Japan , New Zealand and the United Arab Emirates .

“The DTAs will be beneficial for the Philippines because it will encourage the flow of foreign investments capital and facilitate the flow of information between our tax authorities and theirs to enable them to better prevent tax evasion,” Santiago said.

In her speech, Santiago said that the amendments on the treaties reflect current tax policies and favor a balance of taxation rights between the Philippines and the other three contracting states.

In the Philippines , double taxation treaties serve to 1) lessen the burden of overseas Filipino workers or overseas Filipino investors residing and/or doing business in another country; and 2) to attract foreign investments to the country by giving tax incentives to the investors of other nationalities.

Aside from preventing double taxation and tax evasion, the bilateral tax treaties aim to

• eliminate discrimination against foreign nationals and non-residents;
  
• open direct communication channels between the two tax administrations;
  
• provide venue for information exchange for contracting states;
  
• set up mechanism for resolving disputes arising from the interaction of tax systems; and
  
• increase the certainty regarding contracting states’ domestic laws for better mutual investments and trade.
  

JPEPA SIDE ACCORD OK’D

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, released the exchange of notes between foreign affairs Secretary Alberto Romulo and Japanese foreign affairs Minister Masahiko Koumoura concluded last week.

“In international law, an exchange of notes constitutes a treaty, binding on the parties and implying performance in good faith. This exchange of notes will in effect constitute an integral part of the treaty,” she said.

Santiago said that every senator has been given a copy of the exchange of notes on Philippine constitutional provisions, in order that the senators could take the exchange into due consideration when they vote on the Jpepa.

“The exchange means that areas of investment activities reserved by the Constitution to Filipinos will remain reserved, and will not be opened to Japanese investors,” she said.

Santiago said the exchange confirms that Jpepa will not result in a violation or amendment of any nationalistic provision, notably “the ownership of lands of public domain and exploration, development, and utilization of all waters, minerals, coal, petroleum oils, all sources of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources.”

Santiago said Jpepa will respect the reservation to Filipinos only of all “preferential rights, privileges, and concessions granted to qualified Filipinos covering the national economy and patrimony.”

“For example, the Japanese cannot lease or own alienable public lands. Neither can they own and transfer private lands,” she said.

Santiago said that the exchange of notes prohibits the Japanese from operating any public utility, practicing any profession, or owning mass media or advertising corporations.

Other fields that the Constitution reserves exclusively to Filipinos concern health and educational institutions.

Jpepa will not amend any existing law protecting Filipinos from unfair foreign competition, regulating foreign investments, promoting preferential use of Filipino labor and domestic materials, or regulating the transfer of technology.

Santiago also said that the exchange of notes emphasizes the Jpepa provision that the treaty may be amended by agreement between the parties, in order to allow for future Philippine laws that might not conform to Jpepa, but are intended to enforce the nationalistic constitutional provisions.

“This exchange of notes is of course considered binding between the Philippines and Japan , and will be respected as an integral part of Jpepa,” she said.

Santiago said that under the 1969 Vienna Convention on the Law of Treaties, an exchange of notes is binding, when it is established that the states agreed that the exchange should have that effect.

“Thus, the constitutional issues raised by the treaty have now been resolved,” she said.

In the Senate, Jpepa is at present undergoing the process of interpellation on trade issues, handled by Sen. Mar Roxas.

After the trade issues are discussed, interpellation will proceed on the constitutional and legal issues, to be handled by Sen. Santiago.

After the period of interpellation is closed, three days later, voting on the treaty will be held.

The Constitution requires concurrence by two-thirds vote of the Senate, for the treaty to be considered ratified.

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PALACE-SENATE ACCORD ON TREATIES

President Gloria Macapagal Arroyo has agreed in principle that henceforth, all negotiating panel for treaties like the controversial MOA-AD should include at least one member of the Senate Foreign Relations Committee.

Sen. Miriam Defensor Santiago said that the accord was reached, when she and President Arroyo discussed the constitutional issues arising from the MOA-AD and the Jpepa.

“President Arroyo accepts that since the Senate has to concur with her ratification, the Senate should play an active role in treaty negotiations, at least with respect to constitutional and other issues,” Santiago said.

Santiago said that at a meeting in Malacañang last Friday, August 29, President Arroyo said she had issued instructions that the MOA-AD shall not be signed at all.

“That will preempt the declared intent of some Christian and Ilaga leaders in Muslim Mindanao to arm themselves, in anticipation of Muslim marauders in their communities,” the senator said.

Santiago said that under the Vienna Convention on the Law of Treaties, care should have been taken in drafting the MOA.

“If signed, the MOA would become part of the preparatory documents that constitute the context of any treaty. As part of the context, it is considered as a guide to the interpretation of the treaty itself. Thus, it is significant,” she said.

Santiago said the mere terminology used – “Memorandum of Agreement” – was already unfortunate.

“The title of the document should have been more neutral. Since it was so unequivocal, it immediately raised a furor,” she said.

The Senate said that even if the MOA is characterized as a political question, the Supreme Court would still have the power to acquire jurisdiction, if it can be shown that there was grave abuse of discretion on the part of executive officials.

“In the United States, it has been a long-standing practice to invite senators belonging to the Senate foreign relations committee to join the negotiating panel, so that the senators can anticipate what problems the treaty might raise in the Senate. Thus, verbal booby traps can be avoided,” she said.

-End-