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 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.

MIRIAM: HOUSE BASELINES BILL “FATALLY FLAWED”

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, said that the House version of the baselines bill is “fatally flawed” and “a potential diplomatic disaster.”

Santiago criticized the House version which includes the Spratlys and Scarborough Shoal inside the Philippine archipelagic baselines, “because it violates the UN Convention on the Law of the Sea (Unclos).”

By contrast, the Senate version which Santiago sponsored claims the two, but places both, under the “regime of islands” principle, which is allowed by the Unclos.

Under Unclos, an archipelago is allowed to draw straight baselines from the outermost points of the outermost islands, provided that the baselines adhere to the natural configuration of the archipelago.

Santiago also said that it is “futile” to include the Spratlys inside the archipelagic baseline, because many of the Spratly islands are already occupied by several Southeast Asian countries and China .

“It defies reality when a state claims sovereignty over islands which are in the physical possession of other states,” she said.

Santiago , who is suffering from Chronic Fatigue Syndrome, declined to head the Senate panel to the bicameral conference committee, and instead endorsed Senate President Juan Ponce Enrile to head the panel.

“Since the House panel will be headed by no less than the Speaker, it is only appropriate that the Senate panel should be headed by the Senate President,” she said.

Santiago said that she had the “fullest confidence in the analytical judgments” of both Speaker Nograles and Senate President Enrile.

“It is really a very simple choice. We have to scale down without surrendering our territorial claims. The unacceptable choice is to claim as much territory as we want, alienate the rest of the international community, and operate as a pariah in international law,” she said.

MIRIAM SEES CHACHA NEXT YEAR, IF . . .

Sen. Miriam Defensor Santiago said that the Supreme Court holds the key to whether the charter change process will start next year.

“In general, the House of Representatives is in favor of charter change, while the Senate opposes. Which of these chambers will prevail will ultimately be decided by the Supreme Court,” she said.

Santiago was guest speaker yesterday at Our Lady of Fatima University in Valenzuela City.

Santiago said that the House and the Senate are directly opposed on the issue on how to compute how many votes will be needed to convert Congress into a constituent assembly.

Santiago said the Constitution provides that it can be amended by ¾ votes of the Congress, and the issue is how to compute the ¾ votes.

“The House position is that first we should compute the total number of Congress members, which is 261 votes in all. If so, then only 195 votes are needed to change the charter,” she said.

Santiago said that the Senate objects to the House position, because it would mean that a senator has just the same vote as a representative, and because there are more representatives, the House will be able to outvote the Senate.

“By contrast, the Senate position is that charter change needs ¾ of the House, meaning 178 votes; plus ¾ of the Senate, meaning 17 votes,” she said.

Santiago said that even former Supreme Court justices and constitutional convention delegates are divided on the answer to this issue.

“The authoritative answer to this paramount threshold question can only be given by the Supreme Court,” she said.

Santiago said that as a constitutional law professor, in general she opposes any charter change, unless there are compelling reasons.

“One compelling reason for charter change is the imperative necessity to change the nationalistic provisions, in order that the Philippines can be globally competitive,” she said.

Santiago noted that many foreign firms do not want to invest in the Philippines , because the Constitution only allows them minority control of their own corporations.

“The second reason for charter change is the necessity to change from a unitary to a federal form of government, in order to solve the long-standing issue of Muslim separatism,” she said.

Santiago said that in a federal system, as in the US , each state is a virtual state within a state, resulting in a “system of dual sovereignty.”

“But we have to be extremely careful that in a federal system, the Constitution shall prohibit absolutely any right of secession. The absence of such a prohibition might cause a civil war, as it did in the US ,” she said.

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.

14 January 2008

MIRIAM TO CONGRESS: “DECELERATE” BIOFUEL

Sen. Miriam Defensor Santiago, chair of the powerful Joint Congressional Power Commission (JCPC) said she will write Senate President Manny Villar and Speaker Jose de Venecia to provide funds for the newly created Biofuels Oversight Committee, to ensure that “food acreage will not be prejudiced by biofuel acreage.”

Santiago was reacting to a statement in Manila last week of Dr. Hartmut Michel, 1998 Nobel prizewinner for chemistry, that biofuel development is counterproductive, because it produces little energy, compared to other alternative sources.

Ironically, Santiago was the Senate author and sponsor of the Biofuels Act signed by President Arroyo into law in January last year.

“The Biofuels Act is only a cushion for the global increase in oil prices. It is only meant to be a runup to the Renewable Energy Bill, which I will sponsor in the Senate when session opens at the end of the month,” Santiago said.

The Biofuels Act requires a minimum 1 percent biodiesel blend in diesel fuel, and 5 percent bioethanol blend in gasoline fuel, prompting business speculators to call for the conversion of riceland to sugarcane, corn, cassava, nipa, jatropha, palm, soy, grapeseed, and coconut.

“The Biofuels Oversight Committee is intended not only to ensure that the law will reduce the country’s dependence on imported oil, but also to prevent corporate greed and political opportunism from endangering food security,” Santiago said.

Santiago , chair of the Senate energy committee, said that at a recent meeting, her committee voted to adopt all the proceedings of the prior Congress, meaning that the proposed Renewable Energy Bill can go immediately without additional public hearings to the plenary session for debate.

“The Biofuels Act merely addresses energy use in the transport sector. But the renewable energy bill will cover all energy applications outside the transport sector,” Santiago said.

Santiago said that the main emphasis of the renewable energy program should not be biofuel, but hydropower, geothermal, solar, wind, and biomass power.

“Some politicians have overhyped the Biofuels Act to burnish their image, thus misleading the public. The Biofuels Act raises a serious debate on food versus biofuels in a small island country like ours,” she said.

Santiago enthusiastically supported Dr. Michel’s suggestions at the Nobel forum last week that instead of putting money in biofuel development, the government should put money in wind power.

“Biofuel is landbased, and will eventually compete with food. Because the Philippines has a small land area, biofuel production will tend to encroach on food production. Corporations are already searching for millions of hectares for jatropha alone. We have to step on the brakes and decelerate,” Santiago said.

She said that during President Arroyo’s state visit to Spain , Spanish businessmen expressed strong interest in helping the development of wind energy in the Philippines .

Santiago said that the renewable energy bill, like the Electric Power Industry Reform Act (EPIRA), will establish a renewable energy market and a wholesale electricity spot market.

“The renewable energy bill provide for the green energy option, which gives consumers the choice to use renewable energy, and accelerate open access,” Santiago said.

Santiago said that the renewable energy bill will provide fiscal incentives to eligible proponents such as income tax holiday, preferential realty tax rate, exemptions from import duties, and reduction of the government share from royalties.

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The Senator in the News

28 November 2006
From Inq7.net

SENATORS TO GIVE UP PORK IF ARROYO YIELDS DISCRETIONARY FUND

By Juliet Labog-Javellana
Posted date: November 27, 2006

SENATORS were amenable to the abolition of their pork barrel if President Gloria Macapagal-Arroyo would forego the multibillion-peso fund at her disposal, Senate President Manuel Villar said on Monday.

“In fact, we prefer if there is no more pork barrel for everyone but this should include the President,” Villar said in an RMN radio interview.

But for the meantime, the Senate has slashed the P9.1 billion addition to the Priority Development Assistance Fund (PDAF), more popularly known as the pork barrel, which the House of Representatives inserted in the proposed P1.126-trillion national budget for 2007.

The pork barrel finances the pet projects of legislators. Though the money is not directly released to senators and members of the House, the pork barrel is believed to be a source of kickbacks for lawmakers. The kickbacks come from contractors who bag the projects.

The P9.1 billion in the PDAF approved by the House was an increase over the P6.2 billion set aside for the fund by Malacañang when it submitted its proposed budget to the House.

A fuming Senator Miriam Defensor Santiago took to the Senate floor on Monday to denounce the House of Representatives for defending its “unconstitutional” act of increasing the P1.26-trillion budget for 2007.

Santiago, irked by the statement of Representative Jose Ma. Salceda, House appropriations committee chair, that she had gotten it wrong, said the increases made by the House were not only against the Constitution but were also fueled by greed and corruption.

She said the 17.3-percent increase the House gave itself was proof of the House’s “insatiable” appetite [for pork].

Last week, the senator accused the House of bloating the budget by over P8 billion, citing the “mind-numbing” increases in various departments.

Villar and Senator Panfilo Lacson raised the need to abolish the pork barrel after Budget Secretary Rolando Andaya Jr. said over the weekend that Malacañang had the discretion to release the fund to selected senators and members of the House.

This came after Lacson said no more than five Malacañang-friendly senators were able to get half of their P200 million in individual pork last year. He also said Malacañang should explain where some P4 billion in unreleased pork fund for this year went.

It is hard to determine how much pork barrel the President has, considering that the entire budget is deemed at her disposal, according to Senator Franklin Drilon, chair of the Senate finance committee.

But he said he would try to find out when he prepares the final committee report on the 2007 budget, which is being deliberated upon in the Senate. The Senate finance committee approved the Palace-proposed P6.2 billion for PDAF.

Pork barrel becomes a headache for senators because they are besieged with requests from congressmen, governors, other local officials, schools and universities, hospitals and nongovernment organizations looking for funding for their projects that do not receive government support, according to Villar.

“At least if they know we do not have the pork barrel, nobody will come to us,” he said.

“But the problem is where will (all that money) go? All of that money in the budget now will go to the President.”

Of the P6.2 billion in the PDAF this year, Malacañang has released only P2.3 billion, according to Drilon.

Villar confirmed that most of the senators had not been able to avail themselves of their pork share. “To be fair to senators, they have not stopped working even if they do not have (the pork),” he said.

But he disagreed with the advice of Senate President Pro Tempore Juan Flavier that senators butter up the President to get their share.

“That is also possible because there are hospitals who are asking for help but a majority of senators are not like that and we do not go to Malacañang to ask for that,” Villar said.

Drilon echoed Villar’s sentiment, saying he would not butter up the Palace just to get his pork. Drilon has not been able to get a single centavo of his pork barrel since he called for the President’s resignation in July 2005.

“Let’s face it -- Malacañang uses it as a political tool for its allies,” Drilon said.

-o0o-