SENATE WILL ADMIT ELECTRONIC PROOF

Sen. Miriam Defensor Santiago, chair of the economic affairs committee, said that she will apply the rules on electronic evidence, which are exempt from the hearsay rule, at the hearing scheduled for this Thursday, 12 February, on the World Bank scandal blacklisting three Filipino contracting firms.

Santiago said that under the law, an electronic document refers to information by which a fact may be proved, which is transmitted electronically, including digitally sent documents and any printout or output.

She said that electronic evidence also includes audio and video evidence, but in all cases the evidence has to be authenticated by the person who made the recording, or by some other person competent to testify on its accuracy.

“Under the Rules of Court, an electronic document, including a computer printout, is admissible in evidence, if it complies with the rules on admissibility, and is authenticated,” she said.

Santiago said she will admit even online documents purporting to be part of World Bank records, provided that they are authenticated by digital signature, by Supreme Court-authorized security procedures, or by other evidence showing their integrity and reliability.

“Since the World Bank has refused to give me a complete set of its documents on the blacklisting, I am obliged to apply the rules on electronic evidence since they are considered as the functional equivalent of paper-based documents, unless a privileged communication is involved,” she said.

Santiago said that under the law, the hearsay rule does not apply to electronic evidence, provided that they are authenticated by the custodian or other qualified witness.

“The law presumes that electronic evidence is admissible, but the presumption may be overcome by evidence of the untrustworthiness of the source of information or the method of its transmission by computer,” she said.

The senator also said that the admissibility and evidentiary weight of an electronic document should be established by an affidavit stating facts of direct personal knowledge of the reporter, or based on authentic records.

The economic affairs committee has invited to the hearing Ariel Rufo, reporter of ABS-CBN.news/newsbreak, who wrote the internet report that a World Bank document implicates the First Gentleman and other former public officials in the crime of collusion.

Santiago also said that if the First Gentleman prefers to submit evidence by means of deposition, he can choose whether the deposition should be made from oral or written questions.

“If the First Gentleman proves that there is just cause for him to be excused from making personal appearance at the hearing, I will grant a motion to depose him. I will direct the Senate TV crew to preserve the process on video evidence. Thus, the video could be authenticated by the Senate cameraman,” Santiago said.

Santiago , was absent from the Senate yesterday because of chronic fatigue, which she said rendered her short of breath.

“While the chronic fatigue continues, I am advised to limit my exertions. I was busy in the morning giving phone interviews to the media. After lunch, I no longer had enough energy left to withstand the two-hour trip to and from the Senate,” she said.

MIRIAM SEEKS WB PROBE PAPERS

Sen. Miriam Defensor Santiago, chair of the economic affairs committee, wrote a letter “respectfully requesting” World Bank country director Bert Hofman to give to her committee the documents issued during the probe that led to the blacklisting of three Filipino firms.

Santiago was responding to an online news item alleging that a Japanese contractor, who has since left the country, allegedly linked First Gentleman Miguel Arroyo to the alleged collusion among the three firms.

“The internet news item is hearsay and therefore has no probative value,” said Santiago , a former RTC judge.

Santiago said that she has a copy of the World Bank final report, and that it does not mention the alleged testimony against the First Gentleman.

“In my letter to World Bank Director Hofman, I acknowledged that no Philippine government agency can subpoena the officials or the documents of the Bank. So I appealed to him, in the interest of Philippine public service and our anticorruption campaign, to voluntarily release the documents to the committee,” Santiago said.

The senator said that as much as possible, congressional hearings should abide by the Rules of Court.

“The Rules of Court prohibiting hearsay are mandatory in judicial courts. If a Senate committee endorses to the Ombudsman or to the prosecutors a criminal case based only on hearsay evidence, it will be thrown out,” she said.

Santiago said that under the hearsay rule, a witness can testify only to what he has perceived by his own senses.

“If the World Bank gives me the documents that incriminate the First Gentleman or any other public official, I will immediately set a hearing and invite them. If they don’t appear, I’ll take it a step farther and subpoena them,” she said.

Transcript of Senator Miriam Defensor Santiago’s interview

9 October 2007

On the significance of the testimony of the First Gentleman regarding the NBN-ZTE scandal

No, it is not vital to the prosecution case. Hypothetically speaking, if criminal charges are filed against the administration in connection with the ZTE case, the testimony of the First Gentleman will be very marginal. It is not absolutely necessary. It is not the core of the complaint. In fact the complainant himself admitted in public that the First Gentleman did not ask for any money. He simply allegedly said that De Venecia should stop pursuing the contract, which is pursuant to law. Under the Anti-Graft and Corrupt Practices Act, Section 5, any relative within the third civil degree of the Speaker or any public official cannot directly or indirectly intervene in any contract or transaction with the government. So assuming that the complainant’s statement about the First Gentleman’s alleged statement is true, there is nothing wrong with it because it is all pursuant to the law. He (Joey) is in fact being given good sound legal advice.

On a Kampi executive allegedly bribing legislators to endorse the impeachment complaint against the President

Bribery is one of the hardest cases to prove because you cannot convict on the uncorroborated testimony of one person, even if he is a public official. It always takes two to give a bribe and accept the same bribe. It would be different if there was only an offer of a bribe. But still the quantum of evidence necessary is corroborated testimony. You cannot just testify in court that someone offered you a bribe. That will not stand under the rules of evidence. It will be extremely difficult to prove. In bribes, there are never any receipts or any other documentary or other forms of evidence. So it’s just a person’s word against another person’s. And the presumption of innocence is always in favor of the accused. [But if there are others who claim the same story], then there would be a prima facie case.

If a case will be filed against JDV in the Sandiganbayan…

He should at least, out of a sense of ethics, file a leave of absence. In fact, in ordinary cases, an official who has been charged under the Anti-Graft and Corrupt Practices Act should be administratively suspended while the case is pending. That does not apply to the legislative branch because it only applies to the administrative branch, meaning to say the lower levels of the executive branch. But still, if we heed just legal ethics, he should at least go on temporary and indefinite leave of absence to erase any doubt that in his official position he may try to influence the outcome of the case.

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Transcript of today’s media interview with Sen. Miriam Defensor Santiago

19 September 2007

On the decision of President Arroyo to allow executive officials to appear before Senate hearings:

As a lawyer and a senator, I commend the President for allowing her cabinet members and other high executive officials to appear and honor the invitation or the subpoena from the respective Senate committees that are presently holding investigations on certain transactions by the Executive allegedly participated in by certain executive officials. This is in keeping with the trend in the Supreme Court to expand the power of Congress to conduct legislative enquiries that are in aid of legislation. It was in a series of cases last year where the Supreme Court made the power broader on the ground that the right to hold legislative investigations in aid of legislation is constitutionally protected. The right is specifically provided for in our Constitution. Therefore, all the powers that are needed for the efficient discharge of this constitutional duty should be granted to the Senate. What for is our power to investigate if we subpoena people and they wouldn’t come and will be considered excused. We should have the coercive power to cite for contempt. And we should have the power to call any person and to compel that person to testify before us. If his testimony is irrelevant, then we can judge for ourselves, but he must come first. He cannot interpret the relevance or materiality of his testimony by himself. He has to allow the Senate to pass on that. In the same way that no public official can claim executive privilege, and expect the Senate to accept it. We also have the power in the Senate to pass upon the question of whether executive privilege is being properly invoked or not. All of these actions by President Arroyo are consonant with Supreme Court decisions, the first of which is Senate v. Ermita, where the Supreme Court said that there can be no blanket invocation of executive privilege, each claim must be explained in full to the Senate. The second is Gudani v. Senga, where the Supreme Court said that even military officers cannot claim to be obeying the prohibition of the President, as commander-in-chief, to appear before the Senate. Even the military power of the President must yield to the power of legislative inquiry by the Senate. In Sabio v. Gordon, the Supreme Court said that even though a case was pending in the Court of Appeals and the Sandiganbayan, the officials subpoenaed by the Senate must appear before the Senate. There is an implication that even though a case is pending before a judicial tribunal, the Senate still has the power to compel persons to testify about those pending cases. They cannot use as an excuse the doctrine of sub judice. This is a welcome development. I am sure that the senators will appreciate the President’s cooperative attitude.

On the First Gentleman being subpoenaed by the Senate:

We are bound by the doctrine of interdepartmental comity. This means that we have to be courteous of each other because there are three branches (of government), and each branch is equal to and independent of each other. If we in the Senate invite or even subpoena the First Gentleman, he should, as a matter of courtesy, appear and explain why his testimony is not relevant or what has been said about him is false. No person may be excused just by writing a letter to the Senate. They must appear and explain why they think they should no longer be asked to testify. If the Senate insists that they testify, then they have to, because the Supreme Court said that the power of contempt of the Senate is equal to the power of the courts.

Suppose the First Gentleman say that according to his doctors, this might be either fatal to him or seriously impair his medical health, then we can subpoena his doctors if we want to go behind him and if we don’t want to accept his explanation on its face. We are at a liberty to subpoena his doctors. But an investigation need not be a fatal threat in his medical condition. It just has to be potentially and substantially injurious to a person’s health. If this is the case, we have to apply the rule in our Senate Rules of Procedure that the rights of persons affected by the legislative inquiry must be respected. Certainly, the right to life or good health must be protected. But if it comes to that, we first have to wait for the response of the First Gentleman.

The First Gentleman cannot just ignore a subpoena from the Senate. But as an exception, he can submit a letter if the very fact of his appearance in the Senate may, for example, raise his blood pressure or already damage his heart. In that case, we must make an exception for him. But if some senators are skeptical, then we can subpoena his doctors.

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