ON NOGRALES THE RESOLUTION

If the House of Representatives passes the Nograles resolution by mere majority vote, then it will be unconstitutional. We are not allowed to conflate an ordinary bill with a charter change resolution. There is simply no correspondence between the two measures.

If the Nograles resolution is limited to economic provisions, then it is only an amendment, and not a revision. An amendment is limited only to specific provisions. Revision covers the entire Constitution.

But whether amendment or revision, the vote required is three-fourths of all the members of Congress. Any vote less than three-fourths is unconstitutional. For example, to pass a charter change resolution in the same way as an ordinary bill – by mere majority vote – is unconstitutional.

The reason for this is that the power of charter change is NOT part of the legislative power of Congress. Instead, the power of charter change is part of the inherent power of the people, who have spoken through the Constitution.

The power of Congress to pass laws is derived from its legislative power. By contrast, the power of Congress on charter change is derived from the Constitution. This difference was emphasized by the Supreme Court in the 1967 case of Gonzales v. Comelec.

The Constitution provides for charter change under Article 17 entitled “Amendments of Revisions.” The Constitution does not include charter change under Article 6 entitled “Legislative Department.” This is textual proof that a charter change resolution should not be treated like an ordinary bill. It would be like comparing a dilis to a whale.

The Nograles resolution, even if it follows the Rules of Procedure of the House of Representatives, is unconstitutional. By requiring only a majority vote, it contravenes the constitutional provision that charter change should pass by a three-fourths vote.

Transcript of Sen. Santiago's interview - 13 April 2009

On the VFA

I have called for a hearing on the proposal which seems to be mounting to terminate the VFA. Under its own terms, the VFA can be terminated by either the Philippines or the US for any or no reason, and the termination will be effective after notice to the other party within six months. We don’t need a reason. The real reason is, I believe, that after ten years of operation in our country, the VFA is working more harm than good to the national interest. It is acting as a lightning rod for the enemies of the US , and we are being used as a monitoring station by the US Armed Forces in its so-called ‘war on terror’. According to President Obama there is no more ‘war on terror’ and therefore there is no need for the Americans to stay here.

On the part of the Philippines , what we got was used military equipment—in other words, American junk. I have read the papers this morning and I have discovered that the commitment to give us their used military equipment has been dangled before the Philippine government since the early 1950’s. So every time they want something from the Philippines , they will always offer the same deal. If we let them do something in our territory, they will give us their used military junk. I don’t think that it is consonant with the worldview of the new president, particularly since he has spent his childhood in Indonesia which is one of the closest and most analogous neighboring countries to ours. Therefore I think we should give President Arroyo more resources with which to face up with the US which tends to become arrogant every time it is able to get something out of the Philippines for nothing.

On charter change

In addition, I think the moment the House of Representatives passes the so-called charter change resolution, immediately I, and definitely certain other senators, will rush to the Senate to challenge the House resolution on a petition for certiorari, for example. It is their view that when the Constitution provides that a constituent assembly, composed of members of the Congress sits down to change the Charter, the legislative vote should be three-fourths of the votes of the senators sitting down with the House members—and therefore counted as an ordinary House member—that is for me a completely unacceptable view of our Constitution.

Under the doctrine of necessary implication, you read into the statute whatever is necessary in order to effectuate it. Our Constitution provides for a bicameral Congress, and therefore voting should always be bicameral. It can be held at the same time, but the House would vote among itself, and the Senate should vote among itself.

And even if we are outvoted, I believe that the Filipino voters will never approve in a plebiscite any charter change that has been passed only by the vote of the House counting the vote of the Senate together with itself. That will simply not be acceptable to the Filipino public because the Filipino voter is very jealous of his prerogative to cast a vote in favor of his president.

If we change to the parliamentary system, they will not personally vote for their prime minister, but instead surrender their vote for the prime minister and delegate it to the member of parliament of his district. The vote is the only time the voter asserts his authority in a flawed democracy like ours. Even in the case of the stupid corrupt voter, at least it gives him the opportunity to make money out of the politician that is stealing money anyway in the last three or six years. So they will never agree to the proposal to take away this power from themselves. That is the problem.

Of course there are many arguments in favor of a parliamentary system, but basically we have no background in this process because we were colonized by the Americans like other Southeast Asian country. Therefore, I feel that this will turn, like all great political questions, into a great judicial question. The issue is whether the Arroyo appointees will feel bound to vote in a partisan fashion just to support the president who appointed them to office. I don’t think so.

Is PGMA looking for a term extension?

I think she will want more to leave a good name for herself. As you know, she is faltering in the popularity surveys, and for her to be more than proactive in pushing for a shift to a parliamentary system might spell her doom. So she will have to take this in proper perspective. She will not only be fighting for her political life, but also her reputation in history.

Those congressmen are thinking that they can sell their votes to the highest bidder once they turn themselves into parliament. There will be a campaign among themselves on who will be elected prime minister. What will happen is that the ‘prime-ministerables’ will be trying to buy the rest of the members of parliament. How much will each candidate for prime minister will be willing to pay for each member of parliament? Every member of parliament will be for sale whether actually he or she is not. That is how every candidate for prime minister will view their colleague. The money used to be spent to buy the Filipino voter will now be concentrated on some three hundred people. You want to be a gazillionaire? Run for member of parliament.

Is there enough time for charter change?

No, definitely there is no more time left. Unless you run a gravy train. And I just don’t think that the Filipino is in the mood to go along the shenanigans of corrupt politicians. Why do we have to change right now? Why can’t we change it on, like, 2011 or some other period of time? Why do we have to do it right now? Are we sinking into the Pacific Ocean ? Are we gasping for breath? There is no defense on the question of necessity. Why now? Why so urgent?

Are the congressmen looking for a term extension?

A politician is always a hopeless optimist. He is always an apostle of hope. He is always hoping that things will turn out for the best. Even if they will say right now that there will be no term extensions, they are hoping that once the resolution is passed for charter change, things will somehow change and they can still remain in office. Otherwise they will not be members of the House. You have to be inconceivably optimistic to be a member of the House of Representatives.

On the status of the WB hearings

It was clear that there was no evidence as sanctioned by the Rules of Court. I think that those who won’t agree on how I conducted the proceedings are hoping that they can file the same resolution and have it assigned to another committee, otherwise engage in forum-shopping. At that point, I will put my foot down; I’m going to the Supreme Court and say you can’t do this. In the first place, the legislative committee of the Senate is not the NBI or the office of the fiscal. We are not supposed to be conducting preliminary investigations of criminal cases. We are conducting investigations in aid of legislation. And since the WB doesn’t even want to share any information with us, there is no modicum or scintilla of evidence on which to base any adverse statement against the First Gentleman.

Let the Supreme Court rule on whether if a minority of the Senate thinks that it did not get the political partisan results it was hoping for, it can go and refer the same subject matter to another committee so that they can get the result it wants in terms of political mileage. Are we allowed under the Constitution to do this? The Rules of the Senate provides that the Rules of Procedure will not be strictly followed during legislative investigations except when a substantive right of the accused is involved. A substantive right is any right protected and defined under the Constitution, and one of these substantive rights is the right to be presumed innocent.

Another committee can hold another investigation on another aspect, but you have to examine the process. If it simply results in placing the First Gentleman on the dock again, I will resent it as a lawyer.

I will file a committee report as soon as possible. I’ll simply say that there is no evidence pursuant to the Rules of Court, and my basis will be there is a substantive right involved, and under our own rules, we have to apply the strict procedural rules as provided by the Rules of Court.

SENATE POISED TO SCRAP VFA

Sen. Miriam Defensor Santiago, chair of the legislative oversight committee on the RP-US Visiting Forces Agreement (Lovfa), set for hearing next week a proposed Senate resolution calling for the unilateral termination of the VFA.

“The VFA is now ten years old. Under President Estrada, it was an outright deal. The RP got used military equipment, and the US had the right to snoop around Mindanao , as part of the war on terror of President Bush. We got the equipment, and they snooped for ten years. End of the deal,” she said.

Santiago said that the 1999 Senate Resolution 18 categorically stressed that the Philippine Constitution prohibits the permanent stationing of foreign troops on Philippine soil, and it is the Senate duty to prevent the VFA from turning into a permanent arrangement.

“Resolution 18 specified that the VFA envisioned only temporary visits of US personnel engaged in joint military exercises or other activities approved by the RP government. Beyond 10 years, the VFA will become a permanent visit,” she said.

Santiago said that recently the US defense department sent an email declaring that the phrase “war on terror” would now be replaced by the phrase “overseas contingency operation.”

“The Obama administration has stopped using the phrase ‘war on terror,’ which is the explanation for the presence of US soldiers in Mindanao . Since there is no more war on terror, then there is no more rationale for US troops to be stationed in Mindanao ,” she said.

Santiago quoted the VFA as stating that the Philippine government reserves the right to terminate unilaterally the VFA, once it no longer redounds to Philippine national interest.

“My main objection to the VFA at this time is that it continues to foster an attitude of dependency on our part, and an attitude of arrogance on the part of the US ,” she said.

Santiago said that she has several reservations on the February 2009 Supreme Court decision in Nicolas v. Romulo, which affirmed the prior decision in Bayan v. Executive Secretary, upholding the validity of the VFA.

“The authoritative force of the Nicolas case is weak, because it was promulgated by a divided court. Four justices dissented, while two justices did not take part,” she said.

Santiago said that the Supreme Court majority failed to duly consider the constitutional provision that the VFA should be “recognized as a treaty by the other contracting state.”

“Under the US Case–Zablocki Act, the VFA was submitted to the US Congress, because it is not characterized as a treaty. Under American law, any international agreement which is not a treaty has to be submitted to the Congress after it has entered into force with respect to the US . The US government does not recognize the VFA as a treaty, and therefore there is no compliance with the RP Constitution,” she said.

Santiago said that under the US Constitution, a treaty is an agreement of the US President made “by and with the advice and consent of the Senate.”

“In the US , since the VFA is not a treaty, it is not self-executing. It cannot be considered enforceable without an enabling law and it would not be recognized by US courts,” she said.

Santiago said that the majority rule was wrong in citing the 2008 US Supreme Court decision in Medellin v. Texas.

“Medellin dealt with agreements that are considered as treaties. The VFA, under US law, is merely an executive agreement,” she said.

Santiago scheduled the Lovfa hearing on Thursday, April 23, at 10:00 a.m.

SENATE GIRDS FOR CHACHA SHOWDOWN

Sen. Miriam Defensor Santiago, a leading constitutional law expert, said that when the House of Representatives passes a resolution for charter change, immediately the Senate will file a petition in the Supreme Court to compel a separate Senate vote on the resolution.

“The Constitution requires a vote of three-fourths of all the members of Congress. The two chambers should vote at the same time, but should vote separately. This is the doctrine of necessary implication, because Congress is a bicameral body,” she said.

Santiago said that in Asia, the Philippines is one of several countries that follow the US presidential system, including Indonesia, South Korea, and Taiwan; but only Japan follows the parliamentary system.

She said that if a constituent assembly votes to change over to a parliamentary system, the voter would refuse to ratify it in a plebiscite.

“The Filipino is jealous of his personal vote in a presidential election. He will not surrender it to members of parliament, who would have the sole power to elect the prime minister,” she said.

Santiago said that the present presidential system guarantees that most important decisions are made by a broad majority, unlike a parliamentary system where a minority group could impose its will on the nation.

“The only thing you can say in favor of a parliamentary system is that you can avoid a deadlock between the President and Congress. A parliamentary system avoids legislative paralysis, but the downside is dominance by the administration party,” she said.

“In any event, the time left is too short. Once the case reaches the Supreme Court, we would all have to wait. At this time, charter change is not a political but a judicial question,” she said.