PALACE SHOULD STOP ILLEGAL CABINET INFOMERCIALS

BY SEN. MIRIAM DEFENSOR SANTIAGO

Ladies and gentlemen of the Senate:

The Rhinoceros is Thick-Skinned

The dictionary defines a rhinoceros as a large, powerful, herbivarous, thick-skinned perissodactyl mammal with two horns. Thus, a rhinoceros is a template for cabinet members and other executive officials who use public funds, or gifts from so-called “friends,” to campaign for next year’s elections. They are all thick-skinned and should be shot on sight.

DBM Should Not Allow Ad Expenses

Last May, the Department of Budget and Management issued the “FY 2010 National Budget Call.” It is a set of guidelines and procedures in the preparation of the 2010 budget, which the Senate is expected to receive by the end of this month. Under the heading “Maintenance and Other Operating Expenses,” the DBM allows this item: “Advertising expenses. Cost of advertisement in newspapers, magazines, television, radio, and other forms of media.”  

We in the Senate do not see advertising expenses as a line item in the annual budget, because it is hidden under the general item MOOE. This is why cabinet members routinely abuse this advertising expense account every three years, when an election approaches. Without legislative oversight, they shamelessly help themselves to these public funds, on the pretext that they are conducting information campaigns about their departments.

COA Audit of Advertising Expenses

Greed for and abuse of public funds are proved by the figures from the Commission on Audit submitted to me, as chair of the economic affairs committee, on 14 August 2009 by Chair Reynaldo Villar. In 2008–2009, certain cabinet members and other executive officials, prematurely campaigning for the 2010 elections, used public funds totaling, in round figures, P118 million. In 2009 alone – the year before elections – they spent public funds for their candidacies totaling, in round figures, P100 million.

This is the list of cabinet members and other executive officials, arranged by the amount of government funds spent for infomercials, for the two years of 2008-2009:  

In Round Figures:

1. Chair Augusto Syjuco, Tesda - P28.3 M
   
2. Mayor Jejomar Binay, Makati - P23.4 M
   
3. VP Noli de Castro, OVP, Pag-ibig/HDMC, HUDCC - P18.1 M
   
4. Chair Efraim Genuino, Pagcor - P14.1 M
   
5. Sec. Francisco Duque, DOH - P13.2 M
   
6. Chair Bayani Fernando, MMDA - P 7.4 M
   
7. Sec. Jesli Lapuz, DepEd - P 5.7 M
   
8. Sec. Hermogenes Ebdane, DPWH - P 3.8 M
   
9. Sec. Nasser Pangandaman, DAR - P 2.4 M
   
10. Sec. Ronaldo Puno, DILG - P 0.9 M
     TOTAL = P117.7 M

And this is the list for the year 2009, so far:

1. Mayor Binay - P23.4 M
   
2. Chair Syjuco - P22.5 M
   
3. VP de Castro - P18.1 M
   
4. Chair Genuino - P14.1 M
   
5. Chair Fernando - P 6.4 M
   
6. Sec. Lapuz - P 5.7 M
   
7. Sec. Edbane - P 3.8 M
   
8. Sec. Duque - P 3.3 M
   
9. Sec. Pangandaman - P 2.4 M
   
10. Sec. Puno - P .240 M
     TOTAL=P100.4 M

 These executive officials can expect to stay in office until the end of November, the deadline for filing certificates of candidacy, when they will be considered resigned. Thus, unless we in the Senate will warn them to stop using public funds, they are likely to intensify their infomercials, and it would be likely that they will incur more expenses – maybe another P100 million. Their total greed and abuse might then reach a grand total of P218 million of public funds used for electioneering. One small step to the Senate, a giant leap in greed and abuse.

No Legal Basis for Infomercials

There is no specific legal basis for TV infomercials and other campaign materials which feature the head of agency. The law merely provides that: “public officials shall provide information on their policies and procedures.” (R.A. No. 6713, Code of Conduct for Public Officials, Sec. 4 (A) (e)). This provision should be read in the context of the Constitution’s Bill of Rights which provides that: “The right of the people to information on matters of public concern shall be recognized.”

In other words, if a person goes to a government agency and requests information about policies and procedure, then the agency has a legally demandable duty to provide the information, unless it might endanger national security. The right is given to the citizen, not to the agency.

Possibly the only agency required by the Constitution to inform the public is the DOH, under the provision that the state shall instill health consciousness among the people. (Article 2, Sec 15).

But even assuming that infomercials have a specific legal basis, there is no legal basis for the appearance of the head of agency in a state-funded infomercial, particularly when he is planning to run in the elections. I challenge any of these executive officials to cite any such specific law. There is none. There is no legal basis for infomercials. They are illegal.

Timing is Dead Giveaway

If the cabinet officials are merely piously discharging their non-existent duty to expose themselves to the public, why did they start only in 2008, and why are they going full speed in 2009, the year before elections? Why didn’t they start publicizing their pious duty to appear in paid media, specially TV, when they assumed office, many years ago?

Gentlemen of the cabinet, how do you explain the timing of your highly-paid TV infomercials?

Here is the list of their dates of appointment: Mayor Binay - 30 July 2001; Chair Fernando - 3 June 2002; Chair Syjuco - 2004; VP de Castro - 30 July 2004; Sec. Duque - 9 June 2005; Sec. Teves - 12 July 2005; Sec. Puno - 6 April 2006; Sec. Lapuz - 19 July 2006; Sec. Teodoro - August 2007. 

COA Infomercials Unnecessary

Infomercials violate COA Circular No. 94-001 dated 1994 which states: “Sec 16. Grounds for Disallowance. 16.1. All transactions which are irregular, unnecessary, unconscionable, excessive, and extravagant (IUEE).”

According to COA, the audit criteria are as follows:

• +The infomercial should contain information that the public needs to know. What determines necessity is the public need, not the executive official’s political agenda. In their blind ignorance, certain cabinet members keep on chanting the mantra that they need to inform the public. In the optimum, every government agency and every public official has a duty to inform the public, BUT only if the public asks. Who ever asked these cabinet members to inflict their grotesque faces on the TV viewing public?  
  
• The infomercial should be part of the essential functions of the agency. For example, infomercials on a “need to know” basis could be issued by DOH concerning contagious diseases, or by DSWD on emergency assistance for dangerous calamities. Not any function of the agency will justify infomercials, but only an extraordinary function under extraordinary conditions. The infomercial should be essential to the operation of the agency.  
  
• The infomercial should be authorized by a line item in the budget.  
  
• The infomercial should have been processed in accordance with R.A. No. 1984.

Almost all of the infomercials flunk this fourfold test for legality. Under COA Circular No. 85-55-A, expenses for advertisements of anniversaries, etc., in newspapers, TV, or radio merely for publicity or propaganda purposes are unnecessary and should be disallowed, except when the nature of the agency’s mission would require such expenses, as in the case of promotion of trade and business. Here are some COA audit observations on the greed and abuse of executive officials:

• Chair Syjuco. On 27 February 2008, the COA declared as unnecessary, his advertising expenses in the sum of P12.3 M; on 12 March 2008, the sum of P21.12; M; and on 24 June 2009, the sum of P18.4 M. COA warned him at least three times, but he kept on spending public money. COA has noted that Mr. Syjuco’s ad with the professional singer Sarah Geronimo cost the taxpayer P8.3 million. 
  
• VP de Castro. He is the unpaid talent for a profusion of housing ads, thus gaining exposure.
  
• Chair Fernando. He used MMDA funds for giant tarpaulin posters, with his photo occupying over half of the area of the poster. 
  
• Sec. Puno. In 2009, he charged to DILG funds, media greetings on certain occasions, such as the President’s birthday, Mr. Puno’s own birthday, and the anniversary of the Tribune newspaper.  
  
• Sec. Duque. He appeared in ads concerning dengue, smoking, and generics.
  
• Sec. Lapuz. He appears in ads for Brigada Eskwela, for which DepEd funds were used to pay the Philippine Information Agency (PIA).
  
• Sec. Pangandaman. DAR ads showed him and the President.  
  
• Sec. Ebdane. DPWH ads showed him and the President.
  
• Chair Genuino. He appears in Pagcor ads, which are unnecessary, because Pagcor is a monopoly. Why advertise a monopoly?  
  
• Mayor Binay. He appears in ads extolling the benefits of living in Makati , where he is mayor, thus making a subliminal pitch for national office.

By admitting that public funds were used for these ads, the executive officials are admitting that they are guilty of the election offense of using public funds for electioneering. The Election Code, Sec 261 prohibits any person, under any guise whatsoever, directly or indirectly, to use public funds for campaigning.

Ads Paid by Friends Constitute Indirect Bribery

The infomercials of Mr. Puno, Mr. Teodoro, and maybe others, purport to be paid by “friends.” If so, the disclaimer in the TV ads constitute an admission of the crime of receiving manifestly excessive gifts, as defined by R.A. No. 3019, the Anti-Graft Act.

The rate card of a top TV channel charges P475,000 for 30 seconds of prime time. It appears that the running time of each executive official, ranked from the longest to the shortest, are as follows: Sec. Teodoro - 1 minute 12 seconds; Sec. Ebdane - 1 minute 3 seconds; Chair Genuino - 60 seconds; VP de Castro - 54 seconds; Mayor Binay - 39 seconds; Sec. Puno - 33 seconds; Sec. Teves - 30 seconds; Chair Syjuco - 30 second; Sec. Duque - 29 seconds; Chair Fernando - 20 seconds; Sec. Lapuz - 16 seconds.  

 These government officials are spending taxpayers’ money like there’s no tomorrow. If, as some ads proclaim, they were paid for by friends, the cost would run to hundreds of millions. Even a gift of P1 million is already considered to be “manifestly excessive.” We can only calculate that these ad expenses are “arrogantly excessive,” as in walang hiyaan na ito. We have been invaded by a herd of rhinoceros that are not only thick-skinned, but also dimwitted. They are making public admissions of the prohibited act of accepting a gift which is manifestly excessive.

 Under the Rules Implementing the Code of Conduct (R.A. No. 6713) if convicted, they have to suffer the penalty of imprisonment up to five years, and disqualification to hold public office.  

Recommendations

In this speech, I do not include the issue of premature campaigning, because I have brought a case to the Supreme Court, where it is pending. It is sub judice, and I refrain from discussing it on the merits, except to express the conviction that certain people are breaking the law against premature campaign.

Recommendation No. 1. I appeal to my colleagues in this Senate that, when we deliberate on the budget next month, we should abolish appropriations for advertising. If we have to keep this line item, we should accompany it with the condition that it should not feature the agency head, or any political image, or any effort to influence public support for a political candidate.  

These prohibitions have been adopted by other countries. One example is the Guidelines on Campaign Advertising dated June 2008 by the Australian government department of finance. Another example is an American law that prohibits public officials from using the facilities of public office, directly or indirectly, for the purpose of assisting a campaign for election of any person to any office. (RCW 42.17.130).

Recommendation No. 2. I also appeal to my colleagues that in the 2010 budget, we should amend Section 59, the “General Provision on the Use of Savings.” We should add the condition that savings and contingent funds shall not be used to augment the budget for professional services and for advertising agencies.

Recommendation No. 3. I urge the Comelec to discharge its constitutional duty to: “Recommend to the Congress, effective measures to minimize election spending.” Constitution, Art. 9, (C, Sec. (2) (7). Gentlemen of the Comelec, where is your political will? In effect, you have to assume responsibility for the premature campaigning of these cabinet candidates, because of your ruling on my petition, which I have elevated to the Supreme Court. With the avalanche of cabinet infomercials, it has now become clear to the public that by its refusal to stop premature campaigning on the basis of a technicality, Comelec opened the way to a slippery slope.

Recommendation No. 4. I urge the COA to disallow all advertising expenses, and to demand that the executive officials concerned should return to the government the money they used for their ads.  

Recommendation No. 5. I urge Channel 2, under its Boto Mo , Ipatrol Mo campaign; Channel 7, under its own election watchdog crusade; all other media; and all NGOs dedicated to honest and clean elections, to file a complaint with the Comelec for this election offense, against the executive officials I have mentioned, and others doing the same. If Comelec fails to act on a citizen complaint within four months from filing, I urge the NGOs to file the complaints with the state prosecutor or the Justice Department.

Recommendation No. 6. I demand that the Press Secretary as head of the Communications Group in the Office of the President should discharge his duty by directing all cabinet candidates to stop their infomercials immediately. Executive Order No. 511 dated 2006 creates the Communications Group and requires it to discharge the function of supervision of public information activities, including advertisements.

 At the hearing on 14 August 2009 of the economic affairs committee which I chair, I directed the executive officials to comply with the law, principally by observing COA audit criteria, and in any event to remove their images from their infomercials by the end of August. 

If there is no objection from our colleagues, I shall proceed to send a copy of this privilege speech to the Ombudsman, Comelec, and the Secretary of Justice, with my cover letter requesting criminal prosecution by October, if the executive officials refuse to be educated on the law, and continue their mad pursuit of public office by illegal and depraved use of public funds.

MIRIAM SEEKS PROBE OF CABINET SENATORIABLES

Sen. Miriam Defensor Santiago is seeking a public investigation of funds used for alleged TV infomercials by certain cabinet members planning to run for the Senate.

“If they are using public funds, they are guilty of malversation. If they are using private funds, they are guilty of premature campaigning,” she said.

Santiago mentioned the case of one cabinet member who appears in a health infomercial, another who appears in a disaster preparedness infomercial, and still another in a tax payment infomercial.

“The Election Code bans and penalizes the election offense of premature campaigning. TV informercials are a pathetic way of seeking to go around the ban,” she said.

Last year, Santiago filed a petition with the Comelec to stop reelectionist senators from appearing as alleged commercial models of certain products advertised on billboards.

Although the senator alleged that some of her colleagues are violating the ban, the Comelec dismissed her petition, prompting her to elevate it to the Supreme Court where it is pending.

“We have to stop this culture of impunity among senators, cabinet members, and other public officials blatantly violating the law. Instead, the public should support a culture of accountability by asking for their disqualification,” she said.

Santiago said that if the present trend continues, all potential candidates for local and national offices will start campaigning by one ruse or another.

“The law imposes a ban, but many are doing what the law prohibits, because of the lackadaisical attitude of the Comelec. With its refusal to comply with the law, the Comelec is in effect cultivating a culture of impunity among politicians who break the law,” she said.

MIRIAM HITS JUDGE FOR P1B UNPAID COMELEC FUNDS

Sen. Miriam Defensor Santiago questioned a Makati RTC judge for giving due course to a petition which will delay the payment of some P1 billion to the Comelec.

At the Comelec budget hearing, Santiago learned that Judge Winlove Dumayas has given due course to a petition from Mega-Pacific eSolutions, Inc. which will delay refund to the Comelec of some P1 billion, or the rejection of automated counting machines.

“The Supreme Court decision has become final and executory. It is unusual for a mere trial judge in effect to grant a motion for reconsideration from a Supreme Court decision which has already become final,” she said.

Santiago directed Comelec Chair Jose Melo to take legal steps to collect some P260 million from Philippine MultiMedia Systems, for a similarly voided contract.

“People who appeared to have defrauded the Comelec in effect are getting away with Comelec money, which the courts have rendered final and executory. Those suppliers must be very influential,” she said.

At the same budget hearing, Court of Appeals Presiding Justice Conrado Vasquez, Jr. said that the CA received 17 to 20 applications for the writ of amparo, and granted only one to two applications.

Vasquez also said that only one application for writ of habeas data was filed, which was included in a petition for a writ of habeas corpus and writ of amparo.

“It appears either that the public are not yet fully aware that these two new writs are available, or that the applications are unmeritorious,” Santiago said.

MIRIAM TO SC: REPLACE BAR WITH ADMISSION TEST

Sen. Miriam Defensor Santiago appealed to the Supreme Court to implement her proposal made last year that the exams should be replaced by a law school admission test (LSAT).

“With the bar examination, we tell a failed student that after eight years of college, he cannot practice law. We’re wasting lives. With the LSAT, we tell the student that he should not even enter law school, if he does not have the aptitude for it,” she said.

Santiago made the statement during the budget hearing for the Supreme Court.

In the same hearing, Santiago asked the Comelec to explain why until now the collection of some P1 billion has not been completed from Mega-Pacific eSolutions, Inc., which was required to return the purchase price for automated counting machines, after the Supreme Court invalidated the contract.

Santiago also asked the Comelec to explain why until now, Comelec has not fully recovered some P260 million from the Philippine Multimedia Systems, for a similarly voided contract.

The senator also questioned Comelec for paying in full some P78 million in laminated voters ID, when the supplier has not yet fully complied with the contract.

Santiago said that in the last two elections the local voter turnout was less than 80 percent, but the Comelec procured supplies at 100 percent, plus ten percent contingency.

“If Comelec had been more scientific in estimating voter turnout, we could have saved some P 680 million,” 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 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.

-o0o-

MIRIAM SEEKS COMELEC RULE ON POLL ADS

Sen. Miriam Defensor Santiago filed a 19-paged petition last Saturday (June 21) with the Comelec to declare as an illegal election offense, any political advertising in the form of commercial and other endorsements, until the official campaign period starts in 2010.

“It is a mockery of the law to start campaigning two years before the 2010 elections. The Election Code bans any election campaign outside the campaign period,” the senator said.

Santiago, a constitutional law expert, said politicians conducting premature campaigns under the pretense of commercial endorsements violate the equal protection clause of the Constitution.

“Until the Comelec makes a categorical interpretation of the Election Code, the rich and powerful candidate will enjoy an unfair advantage over the poor candidates. This is not allowed under the equal protection clause,” she said.

Santiago said that the Supreme Court condemned premature campaigns in the 2004 case of Chavez v. Comelec, and the 2006 case of Lanot v. Comelec.

“In both cases, although it denounced premature campaigns, the Supreme Court stopped short of declaring it a criminal offense and ordering the prosecution of violators, because there is a conflict in the law,” Santiago said.

Santiago pointed out that under the Election Code Sec. 79, the ban on premature campaign applies only to a person who has filed his certificate of candidacy.

The senator added that by contrast, Sec. 80 imposes the ban on premature campaign “on any person, whether a voter or a candidate.”

“The way out of this dilemma is to apply the rule of statutory construction that Comelec should follow the context, intent, and policy of the law, and should interpret it to avoid an absurdity.”

Santiago said that because the Comelec has failed to rule on the issue, under the primary-jurisdiction doctrine, it is the duty of the Comelec to ensure equality among candidates by declaring that a premature campaign, which is considered an election offense, should be prohibited even if the person has not yet filed his certificate of candidacy.

Santiago’s lengthy petition filed with the Comelec and fully explaining at least seven legal arguments, indicates that if she does not obtain a categorical ruling from the Comelec, she will elevate her petition on certiorari to the Supreme Court.

In her petition, Santiago also asked the Comelec to issue a temporary restraining order and a preliminary injunction against politicians, billboard firms, and TV stations, allegedly engaged in premature campaigns.

The Santiago petition is a class suit, meaning that there are no other petitioners and there are no named respondents, because both parties are so numerous that it is impractical to include them all, and the subject of the controversy is of common interest to the public.

After her petition was filed Saturday, Santiago left for New York to join President Arroyo at a dinner reception for UN ambassadors.

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

Transcript of Senator Miriam Defensor Santiago’s interview

5 October 2007

On Administrative Order 197

I have not yet received a copy (but) I can immediately notice that there is a constitutional issue involved. This administrative order might be on a collision course with the constitutional provision of the right of the public to know. It might be declared unconstitutional by the Supreme Court on that grounds, so I am already worried as a constitutionalist.

I believe that it could be adequately covered by the doctrine of executive privilege which is already have been upheld by the Supreme Court in that case of Senate v. Ermita. There, the Supreme Court invalidated the Executive Order No. 464 but at the same time it said that the doctrine of executive privilege, which is not a constitutional provision, is applicable but under certain conditions. It even made a special mention of diplomatic secrets and military secrets. In those two cases, the doctrine of executive privilege is mostly applied by the Supreme Court, that is to say it takes the word of the president; but the Office of the President must give certain specific details to explain why it is a secret. It cannot just invoke executive privilege in a general way. It must give enough details without giving away the secret. The issue of constitutionality will hinge on how the administrative order is worded.

In the Senate v. Ermita case, the Supreme Court, in effect, invalidated the language employed by the executive order—it was just too broad, it was not properly invoked, etc. So again, this might be the observation of the court in the hypothetical case that someone brings a case to question the constitutionality of the administrative order; and definitely that would be the threshold issue for any Senate committee to its chairperson who wishes to probe into military activities. Automatically, there would be an invocation of this administrative order, and then at that point the Senate would invoke the Supreme Court decision again, as in the case of Senate v. Ermita.

On the Comelec budget

The Office of the President cut down the Comelec proposed budget by nearly half, from P 8B to only P 4B. Under the constitution, the Senate Finance Committee has no longer jurisdiction to increase its budget because there is a constitutional prohibition.

The important fact about the Comelec is that it spends more or less P 5B whenever national and local elections are held together. So that’s the cost to the Filipino. Every time there is an election in both the local and national levels, immediately that’s P 5B. The Comelec always asks for a budget in the billions for voter validation, but why do we have to spend P 1.5B just to clean up the voters’ list. We’ve been engaged in this project for maybe decades. Maybe we should look for an alternative option for voter validation at lesser cost but with equal effectivity because I don’t really see very much effect on election results as announced, there are always cries of electoral fraud, and one of these frauds are fake voters’ participation or falsification of election document. This is just too big an expense.

On the CHR budget

I gave them instructions, as a constitutionalist, that there should be equal protection between civilian victims and military victims since the public is under the impression that only civilian victims are protected by the commission. There has to be emphasis that the military and uniformed people are also entitled to the protection of the Commission on Human Rights. For example, if they are treated by the combatants against the government in a manner that would be violating the international law on conflicts or the international law on war.

On the ARMM budget

This area, the ARMM, includes five provinces which are always at the bottom of the ranking for social development and for economic development, and yet ARMM for the past many years has always had one of the biggest budgets in the General Appropriations Act. Its budget is far bigger than the budget of the entire Congress of the Philippines, bigger than that of the Office of the President, bigger than that of maybe a dozen executive departments, and yet it remains at the
bottom of the list. So where is all that money going? We would like to know.

Plus, for personal services, the general rule of thumb is that it cannot exceed thirty percent of the total budget. But for the ARMM, it is more than seventy percent! What are all these people doing? I think that they have to produce more results to justify such a huge huge budget.

[ARMM proposed budget for 2008: P8.614B; 2007: P8.292B; P8.292B]