MIRIAM: CHARTER FORBIDS TRILLANES MOVE

Sen. Miriam Defensor Santiago filed a dissenting opinion to the proposed Senate resolution amending the Senate Rules by allowing detained Sen.. Antonio Trillanes to participate in Senate sessions by teleconference or videoconference.

Santiago , on sick leave, told the media that she expects administration senators to sign her dissent, including senators Joker Arroyo, Richard Gordon, Manuel Lapid, Ramon Revilla, Jr., and Juan Miguel Zubiri.

The Senate Rules can be amended by a motion presented one day before its consideration, by a vote of the majority of the senators present in the session.

Santiago ’s 10 legal grounds are listed in the enclosed dissenting opinion, which shall be circulated among administration senators.

Santiago , although on sick leave, has influenced Senate votes on important issues. Last week, she released an opinion that it might be unconstitutional for the Senate to detain former agriculture secretary Jocelyn Bolante for the fertilizer fund scam, leading the Senate to release him.

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15 December 2008

DISSENTING OPINION

TO PROPOSED RESOLUTION FOR TRILLANES TELECONFERENCE

By Sen. Miriam Defensor Santiago

This is to respectfully dissent from the proposed resolution to amend the Senate Rules to allow electronic participation by detained Sen. Antonio Trillanes in Senate proceedings. The grounds for my dissent are as follows:

1. The resolution might violate the Due Process Clause of the Constitution. It will deny due process to the state, represented by state prosecutors who have charged Trillanes with two counts of coup d’etat: one for the Oakwood incident, and the other for the Peninsula incident. If there is any move to allow Trillanes’ electronic participation, the principle of fair play dictates that there should be notice and hearing to the state prosecutors concerned. The resolution merely represents the view of certain senators, who are airing the side of the accused. The Senate has not heard from the side of the prosecution. Since due process requires notice and hearing to all parties involved, merely passing a resolution would be a denial of due process to the state.

2. The resolution might violate the Equal Protection Clause of the Constitution. It might serve as a bad precedent for other persons in other circumstances to invoke a right to participate by electronic means in collective decision-making. Admittedly, the resolution is not limited to a detention prisoner, but includes those who are hospitalized or ill. However, the effect of the resolution would be to make the Senate a singular institution, distinguished from all collective institutions, because the Senate alone would conduct its plenary sessions by electronic means. This would be deleterious to other important collective agencies, such as the House of Representatives, the Supreme Court, the Court of Appeals, and even the President’s cabinet. Should a constitutional issue be raised on the basis of the Equal Protection Clause, the Supreme Court will be faced with the choice of either striking down the Senate resolution, or the untenable choice of making the privilege available to all members of collective public agencies.

3. The resolution violates the common law principle that: “He who comes to court, should come to court with clean hands,” also known as the “clean hands” principle. Trillanes does not come with clean hands. By means of his two nationally-televised coup attempts, he has demonstrated his contempt for the existing governmental system, and for the rule of law. If he had succeeded, he would have been hailed as a hero. But he failed, and is now a suspected criminal. In effect, he is a political offender, who is defined as a criminal driven by ideology. It appears that the Trillanes ideology is to destroy the present government. Thus, he is now barred from seeking the privileges of the very same government he sought to destroy.

4. Trillanes is seeking a privilege that not even presidents and queens have dared to demand. Heads of state, such as the RP and US presidents, as well as the UK queen, appear personally when they deliver state of the nation addresses to the Congress. They do not do so by teleconference. Admittedly, Trillanes is absent because he is under compulsory detention. But his election as senator does not operate to erase the crimes that he apparently committed in full view of the national TV audience. To allow him teleconference rights would be to reward those who have openly expressed contempt for the social order. In fact, if he wishes to be a hero, he should stand his ground and refuse to accept any and all privileges from the Senate, one of the principal institutions that his coup, if it had been successful, would have destroyed.

5. It is not necessary to amend the Senate Rules, because Senate tradition already allows participation of an absent senator in plenary sessions. This is done when the absent senator requests a present senator to read into the records his debate paper, such as interpellations.

6. It is not beneficial, because from a cost-benefit analysis, the expense is not worth one senator’s participation. The resolution is not based on hard data concerning how much the total cost will be.

7. Absence of a senator does not deprive any particular constituency of representation. A senator is elected nationwide, on his main qualification of competence for policymaking. Thus, it cannot be argued that failure of a senator to participate in Senate proceedings would deprive his constituents of a representative. Unlike a member of the House of Representatives, a senator has no defined constituency to represent. A senator is meant to represent the entire country in helping to make policy decisions.

8. The proposed resolution invokes R.A. No. 8792, or the Electronic Commerce Law of 2000, as well as the SEC circular authorizing board meetings through teleconference. Both citations are unavailing. As its name implies, the law is intended primarily to promote commerce. SEC is a major player in the commerce sector. The law makes no reference at all to legislative proceedings, and is thus irrelevant to the issue.

9. Rule 41, Sec. 117, provides that the vote of an absent senator shall not be counted. This Rule is so old that it derives its legal force not only from its inclusion in the Rules, but also from the fact that it has become a tradition. It would denigrate the voting process in the Senate to allow an absent member to vote by remote means.

10. It would be inconsistent for me personally, to favor teleconference rights for Trillanes, when I have a pending complaint against him with the ethics committee. Under Senate Rule 34, acts which offend a public institution shall be deemed unparliamentary. Further, the intent of my complaint against Trillanes is for the Senate to punish him for disorderly behavior in two coup attempts: one before, and one after, his election as senator. If the Ethics Committee so recommends, the Senate may suspend him for 60 days or even expel him outright. I cannot possibly request the Senate to expel him on the one hand; and to allow him to participate in Senate sessions by remote means, on the other hand. That would be unethical prevarication.

MIRIAM WANTS MMDA BUDGET SLASHED; SUSPECTS MMDA FUNDS TO BE USED FOR FERNANDO’S CAMPAIGN

Senator Miriam Defensor Santiago today asked Senate President Juan Ponce Enrile to reduce the budget of the Metropolitan Manila Development Authority (MMDA) by P13 million.

In a letter to Enrile, Santiago said she suspects that MMDA funds will be used to support MMDA chair Bayani Fernando’s announced presidential bid. She cited as evidence Fernando’s “giant posters” around and outside Metro Manila.

“Mr. Fernando is engaged in an unlawful premature campaign, and it is highly likely that he might use the funds of the MMDA,” Santiago said.

Santiago also said that Malacañang’s version of the MMDA budget for Maintenance, Operating and Other Expenses (MOOE) was only P1..539 billion, but the House version raised it to P1.552 billion.

“I am not convinced that there are valid reasons for the increase by the House. If the MOOE increase is really necessary, the Office of the President would have included it,” the feisty senator explained.

Santiago is unimpressed with the performance of the MMDA under Fernando’s helm.

“The MMDA is not easing traffic in Metro Manila. Instead, it is merely transferring chokepoints from one place to another. It is not beautifying Metro Manila. Instead, it is merely painting conspicuous roadside houses with the colors pink and blue, which are Mr. Bayani Fernando’s signature colors,” she said.

MIRIAM: JUDGE, NOT SENATE, SHOULD DETAIN BOLANTE

Bolante’s detention by the Senate might be unconstitutional. It appears that there is a conflict between the constitutional privilege against self-incrimination, and the Senate Rule on detention for contempt.
 

On the one hand, the Constitution provides that no person shall be compelled to be a witness against himself. On the other hand, the Senate Rules provides that the committee may punish for contempt any witness who testifies falsely or evasively.

 The Supreme Court, in interpreting the constitutional provision, has repeatedly emphasized that there is a difference between a mere witness and the accused. It appears that Bolante is not a mere witness, or a mere person of interest, meaning a suspect. He is in fact the accused in what seems to be a criminal case for violation of certain criminal laws, including perjury, malversation of public funds, and plunder.  

Since Bolante is the accused, he can refuse outright to take the stand as a witness. In the latest 2007 case of Standard Chartered Bank v. Senate Committee on Banks, Financial Institutions and Currencies, the Court repeated the rule that an accused occupies a different tier of protection from an ordinary witness. The Court said: “Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any or all questions.”

 The Court explained that the right of the accused against self-incrimination also applies to respondents in administrative investigations, such as legislative inquiries in aid of legislation. The Court laid down the test for determining whether the right of the accused against self-incrimination can be invoked: administrative investigations should “partake of the nature of, or are analogous to criminal proceedings.”

 The Supreme Court has applied the exception in favor of the accused in administrative cases and proceedings that partook of the nature of a criminal proceeding, or was analogous to a criminal proceeding. The Court first applied the exception in the 1962 case of Cabal v. Kapunan. It continues to be quoted with approval by the present Supreme Court. In the 2006 case of Rosete v. Lim, the present Supreme Court ruled: “It is likewise the opinion of the Court that said exception applies to parties in civil actions which are criminal in nature. As long as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that control.”  

In Standard, the Court ruled that the persons summoned by the Senate could not invoke the rule against self-incrimination, because they were summoned merely as witnesses. Thus, the facts in Standard are different from the Bolante case. But the ruling remains the same. More specifically, the Court in the 2007 Standard case cited with approval the ruling in the 1985 case of Galman v. Pamaran, that the right against self-incrimination applies to all cases in which the person is sought to be punished.

 My interpretation of the 2007 Standard ruling is: in legislative inquiries, the Senate may compel a mere witness to testify under oath, but it cannot compel the accused himself to testify. If the Court cannot compel the accused to testify, neither can a Congress committee.

 This ruling is based on the distinction between the purpose of a trial court, and the purpose of a legislative inquiry. In the 2007 case, the Court ruled: “The prosecution of offenders by the prosecutorial agencies and the trial before the courts is for the punishment of persons who transgress the law. The intent of legislative inquiries, on the other hand, is to arrive at a policy determination, which may or may not be enacted into law.”

 In the same case, the Court also said that a Congress committee cannot penalize a violator, except when it exercises the power to punish for contempt. However, the Court was talking about a mere witness, and not about the accused himself.

 Parenthetically, under the Rules of Court, while a judge may summarily punish a person for direct contempt, meaning, misbehavior in the presence of the Court, the citation for direct contempt is punished only by a fine of no more than P2,000, or imprisonment of no more than ten days or both.

 If the Senate continues to detain Bolante, the detention might be unconstitutional, because it appears that the Senate has already enough inputs to arrive at policy determination, which is the sole purpose of a legislative inquiry. The Senate Blue Ribbon Committee’s power is limited only to the filing of a committee report recommending that Bolante should be charged before the Ombudsman.  

The Court has ruled that the Senate’s recommendation, along with the evidence, constitutes the boundary of Senate jurisdiction: “At best, the recommendation, along with the evidence contained in such a Report, would be persuasive, but it is still up to the prosecutorial agencies and the courts to determine the liabilities of the offender.”

 The question may be raised on whether Bolante waived his right against self-incrimination, by appearing and testifying before the Senate. I respectfully submit that he made no such waiver. It was his right to narrate his version to us – no matter how outrageous, as I myself pointed out during the first hearing – but he still retains the right to refuse to take the witness stand at a farther point.

 Even on sick leave, I issue this humble statement, in the hope that the Senate Blue Ribbon Committee will consider the jurisprudence. My humble proposal is that Bolante, on his motion, should be released. (Anyway, he might file a motion for temporary release for Christmas, which has to be granted for humanitarian grounds). Immediately thereafter, the Blue Ribbon Committee could submit to the Senate in plenary session a partial report recommending that the Ombudsman should immediately conduct preliminary investigation and file the case before the Sandiganbayan. There, Bolante will have to be detained unless he posts bail. However, if the case filed against him is plunder, which is nonbailable, then he would continue to be in detention.

 Despite my own personal assessment that Bolante is stonewalling, as a constitutional scholar, I respectfully submit that all Congress members are bound by the constitutional warning that the rights of persons appearing in legislative inquiries should be respected.