Transcript of interview

1 October 2009

On the suggestion of waiving the donor’s tax for the donations for typhoon victims 

There are many organizations here and abroad who want to make donations for the typhoon victims. What deters them is the prospect of having to pay donor’s tax. They are afraid that the tax would eat into the donation, that, in effect, they would be just giving money to the treasury which might be stolen by corrupt public officials. 

There are existing exemptions from donor’s tax. One of the ways you can avail of so we can immediately give the donation to the flood victims is to course it through a government organization and not through a private individual or organization. I will file a resolution on Monday that the Senate and the House should set up a donor reception center and issue the proper receipts and document the donations so that the donations would automatically be tax-free. That would stimulate the expected influx of donations from abroad.

What happened to the P10 billion for disaster relief from Congress?

They decided just to source it from national treasury funds because there is a measure of assurance from the DBM that the funds are ready anyway. There might be technicalities involved with the road user’s tax. We are coordinating closely between the committees on ways and means, and finance, with our counterparts in the House so that both chambers would be able to approve it, meet as a conference committee, and then immediately implement the P10 billion supplemental budget. You can expect by next week that the P 10 billion will be available and ready for distribution, and that the Senate would put up relief centers with the House of Representatives so that the donor’s tax would be automatically waived. I patterned the donor’s tax exemption after a Hurricane Katrina legislative measure.

On the reported extravagant LWUA anniversary celebration

That should be considered an extravagance during a time of calamity, and under the Civil Code it could be prevented by means of a court injunction. The Civil Code frowns upon excessive or conspicuous consumption in times of national emergency or calamity. If it falls within that category, anyone can go to court and obtain an injunction to stop it.

If it has already happened, then a petition can be filed in court for damages against those who held the celebrations because of a violation of a provision in our Civil Code. If we do not enforce it by means of court injunction, then it becomes a dead law. So I would strongly encourage any private person or organization to file the commensurate action for damages against the people responsible for it.

What could be their penalties?

They would have to pay in their individual capacities and refund the national treasury because I’m sure that the COA will not allow that as a necessary expense. Remember that the COA law provides that it shall disallow any unnecessary expense.

On public officials' infomercials still airing in media despite the calamity

I call on all public officials that are still broadcasting their infomercials to stop it immediately and to ask the permission of the networks, with whom they presumably have contracts, to agree to suspend at the very least those contracts and give the money to the typhoon victims. I think the infomercials will cause a backlash because if we just suffered the loss of lives and property, we don’t want to see in TV a person who is promoting himself as a candidate and appears oblivious to the calamity that other people are going through. So it becomes scandalous and anomalous.

On public officials and celebrities taking advantage of the calamity for publicity

There is public resentment, if they are not aware of it, of public officials very conspicuously distributing relief goods or even movie stars. This is not the time. If we just want to exercise an act of Christian compassion, they have to observe that this should be done in private and that there should be no benefit of any kind for the individual who is distributing these relief goods. Maling kultura iyon na kapag may disgrasya, kaagad kang darating at may ipinamimigay kunwari pero meron kang sariling mga photographers at press release.

That is sheer opportunism in my view. You know, if you are a devastated typhoon victim, with your life and properties in ruin, you don’t want to face TV cameras. And for example, movie stars dressed to the nines with heavy TV make up on giving you one kilo of rice.

On the country’s disaster preparedness

There has to be a long term strategy because we are in the typhoon belt and the earthquake belt. We have to have a long term program. First of all, we must complete the Marikina floodway project. The floods in Marikina were predicted long ago because it is a valley. And so government already started a drainage project so that the floods in Marikina could be diverted to the Manggahan floodway in Pasig, and then diverted to Manila Bay. But the canal from Laguna Lake to Manila Bay was never constructed. That is the reason why.

In addition to these floodway systems, we should have permanent evacuation centers because we are always implementing ad hoc measures. I just think that NDCC should have been better equipped than it actually is during these events. There is always an element of surprise like “Huh? What’s going on?”. That is why it is called disaster preparedness—they should be prepared.

Transcript of Interview - 29 September 2009

On the recent incident of a landmine explosion in Sulu resulting to the death of both US and Filipino troops

Why are they there? American troops should stay out of conflict areas. The problem is they go to combat or conflict areas.

What is its impact on the VFA resolution?

It confirms the suspicion of the university students and the leftists that these Americans are all actually engaging in warfare. War or battle is no longer defined today in armed forces manuals as actual shooting between two persons. War now includes unconventional warfare; so that is the basis of the contention that they are engaging, if not in shooting wars, at least in unconventional warfare.

For me, this constitutes additional evidence that they are already engaged in activities that have not been contemplated by the VFA at all.

What if the US troops retaliate?

They would have to start a war against the Philippines first. We will find ourselves in a state of war with the United States if we do that.

Are you concerned of the implications of the incident?

Yes. I already raised that in my sponsorship speech when I was sponsoring the VFA resolution. How come there are dead Americans in combat areas if it is true that they are not engaged in combat? And we have this suspicion that all these deaths are not necessarily reported in the media because it is kept as a secret.

Why were there in an area where there are landmines? We will necessarily define that area therefore as a conflict area at the very least.

But what can you say about the US troops’ involvement in the rescue operations for the victims of Typhoon Ondoy?

As I’ve said we welcome this. No one in his right mind would reject this offer of humanitarian assistance. But I humbly contend that this is all part of their psy-ops (psychological operations). They gather intelligence by this means. So it is not always a one-way street. We may be benefiting as a people, but they are benefiting as well.

Wouldn’t the incident drag the US troops into the conflict?

They already were when they insisted on the VFA. You must remember that when the Philippine government became party to the VFA, the United States kept on telling that it would stop military aid and other forms of economic and financial aid if we did not sign the VFA.

Their purpose was not to train Filipinos. Their purpose is to serve their own national agenda which is perfectly natural in international relations. There are those of us who are against the VFA now because after ten years we did not receive what we were hoping we would get in terms of military assistance.

On the US Embassy’s statement that the US troops were there because they were building schools in this particular incident

…And the Filipinos are so stupid as to plant landmines in area for a school where most of their children would go?

On the status of the VFA resolution

Immediately after the Senate approved it, I amended the resolution as suggested by one senator, and sent unofficial copies to the offices concerned like the DFA, the Malacañang VFA Commission, and the US Ambassador.

SENATE BILL GIVES P10 B TO TYPHOON VICTIMS AND P 23 M FROM PDAF

Sen. Miriam Defensor Santiago filed two legislative measures Monday to fund relief operations, reconstruction, and rehabilitation of areas devastated by Typhoon Ondoy.

            One of them is Senate Bill No. 3461 appropriating P 10 B to fund disaster management efforts in the wake of the storm that brought record breaking rainfall. Dubbed as the Ondoy Fund, P 8 B of the appropriation will come from the proceeds from the Road Users Tax while the remaining P 2 B will be sourced from local government units.

            “The road tax should have been used for road maintenance and drainage systems in the first place.  What could have been used as preventive measures will now be used as a cure,” Santiago said.

            The senator laid out guidelines in her bill for the allocation of the Ondoy Fund, stating that the priority shall be given to the following:

1)      the construction and repair of various infrastructures such as roads and bridges, and other projects such as drainage works and resettlement centers; and

2)      funding for aid, relief, rehabilitation, and livelihood of the typhoon victims.

Santiago also filed Senate Resolution No. 1378 urging fellow senators to donate at least P 1 million from their Priority Development Assistance Fund (PDAF) to aid the victims of Ondoy.

“The most kickback-prone projects from pork barrels are those involving public works. In this case, we will make sure that there will be full public disclosure of the disbursement of the funds donated for the benefit of the victims of the storm Ondoy,” she said.

She pointed out a December 2004 precedent where 19 senators allocated P 7,050,000 from their PDAF to finance relief operations and reconstruction programs in Aurora and Quezon provinces devastated by a series of storms to hit the country that year.

“Although no senator followed up his or her pledge to my project called ‘one senator, one PGH (Philippine General Hospital) machine’ in 2005, I am confident that my colleagues will heed my call this time with the degree of destruction Ondoy left,” Santiago said.

The senator also appealed to the members of the House of Representatives for the immediate passage of the Disaster Risk Reduction Bill directed at modernizing the equipment of the Philippine Atmospheric, Geophysical and Astronomical Services Administration (PAGASA). It was approved in the Senate on 2 September 2009.

“The devastation wrought by Ondoy underscores the need to modernize the country’s weather forecasting system. PAGASA needs to upgrade its equipment so that we would get early and efficient weather advisories,” Santiago said.

ROAD TAX BIGGEST SCANDAL OF DECADE

Sen. Miriam Defensor Santiago, chair of the economic affairs committee, said the road tax, collected since 2001 from every motor vehicle , is “the biggest scandal of this decade,” because officials refused to observe guidelines, turning it into “secret” pork barrel funds for influential politicians.

The senator said the road tax is the government’s third largest source of tax revenue.

Santiago said the road tax collected from 2001 to July 2009 reached a total of some P56.5 billion, but most of it was given at random by the Road Board secretariat, which has only nine members, of which only five are technical people.

“The road tax is not part of the budget, thus there is no legislative oversight when Congress deliberates on the annual budget.  There is no transparency, because DPWH and the Road Board do not post on their websites the list of projects and programs actually funded,” she said.

“The Road Board executive director is in effect a dictatorial king of a financial empire, accountable to no one, with freedom to set giant kickbacks from public funds,” she said.

The feisty senator said that the road fund was not allocated according to legal procedures, but was based instead on the request of politicians, other government officials, and district engineers.

“Contrary to law, billions of funds were diverted from road maintenance and allegedly used to install traffic lights, road safety devices, and vehicle pollution equipment.  These all reeks of overpricing and ghost purchases,” she said.

The senator cited the World Bank Report of February 2009, which in effect states that the percentage of paved national roads in good to fair condition increased only by 1.1 percent per year since the road tax was collected.

“The road tax has not been abused; it has been raped.  We should check the lifestyle of the Road Board secretariat executives and if justified charge them with plunder and with illegal overdrafts,” she said.

Santiago said the Road Board executive directors were: 2004 Remedios Belleza, 2005-07 Rodolfo Puno, 2008 Puno and Danilo Valero, and 2009 Valero.

The Road Board, which meets once every quarter, is composed of four cabinet members from public works, transportation, budget, and finance, with three private sector representatives.

The Road Board is assisted by a secretariat with only five technical people: executive director, fiscal controller, executive assistant, engineer, and accountant.

“A multi-billion agency like the Road Board, with five technical people are incapable of monitoring the use of public funds and supervising projects and activities,” the senator said.

Santiago said it was “anomalous” for the executive director to refuse to submit documents as demanded by the COA on the pretext that the public works secretariat has not yet approved the request.

COA submitted to the public works secretary a written request last March 23, and followed it up on May 18, but until now the documents have not reached the COA.

“Why is the executive director so reluctant to tell the public about the allocation of the funds, what actual procedures he followed, and the criteria and basis for selecting the roads?  This is a big stink,” she said.

Santiago said that the COA audit report lists many violations of existing budget, accounting, and auditing rules and regulations, including:

• Overstatement of receivables – P 160 M 
• Unreliable yearend balances of inventory accounts – P 31.6 M 
• Unreliable property, plant, and equipment balances – P 453 M
• Invalid charges – P 76 M
• Irregular issuance of gasoline to private vehicles – P 0.48 M and non-compliance with prescribed controls on fuel consumption.
• Irregular and excessive disbursements in the implementation of projects – P 12 M
• Fund for national roads used for provincial road – P 10 M
• Failure to remit unutilized balances of fund transfer – P 0.56 M
• Failure to post warranty security for completed projects – P 57 M 
• Overdraft by regional offices – P 1.47 B
• Unreconciled deposits of collections and penalties – P 1.26 B
• Inadequate road maintenance in Region 4
• Absence of guidelines in determining number of workers needed and manner of payment for OYSTER program (Out-of-School Youth Serving Toward Economic Recovery) – P 567 M
• Unimplemented MVUC projects – P 57 M
• Unfinished MVUC projects for more than two years – P 5.7 M
• LTO Motor Vehicle Inspection Unit (MVIS) Project not operational
• Idle smoke emission test equipment – P 5.5 M
• Slow implementation of projects under Special Vehicle Pollution Control
• Unremitted taxes withheld – P 1.9 M

RENEGOTIATE OR TERMINATE THE VISITING FORCES AGREEMENT

By Senator Miriam Defensor Santiago
Chair, Legislative Oversight Committee on the VFA
Sponsorship speech on 23 September 2009

Mr. President, distinguished colleagues:

On behalf of the Legislative Oversight Committee on the Visiting Forces Agreement (LOVFA), Senate panel, I have the honor to seek approval of Senate Resolution No. 1356, entitled “Resolution expressing the sense of the Senate that the Department of Foreign Affairs should seek to renegotiate the Visiting Forces Agreement with the United States, and in case of denial, should give notice of termination of the VFA.”

Constitution Bans Foreign Military Presence

After the Marcos rule, the renewal of the country’s constitutional regime prioritized the supreme concern of putting an end to foreign military presence, and an end to the continuity of US hegemony. Thus, the Constitution, Article 18, Section 25 provides in part: “Foreign military bases, troops, or facilities shall not be allowed in the Philippines, except under a treaty duly concurred in by the Senate, and . . . recognized as a treaty by the other contracting State.”  

This supreme concern to free the country’s armed forces from the control of a foreign power intended to transform the AFP into a real backbone of Philippine sovereignty, instead of the hired spine of a foreign sovereign. The prospect of realizing the program of AFP modernization generated considerable expectation of independence right in the AFP itself.  

But the advent of the VFA spelled the restoration of the AFP dependence on America. Hence, the fate of modernization has ceased to be a politically appropriate topic in civilized circles.

2009 Supreme Court Case: Doctrinal Confusion

In the 2009 case of Nicolas v. Romulo, the Supreme Court held, by a split vote of 9-4, that the VFA is constitutional. The dissenters were led by no less than Chief Justice Puno, who began by saying: “This slur on our sovereignty cannot continue, especially if we are the ones perpetuating it.”

As a student of constitutional law, I humbly submit that the Nicolas ruling suffers from doctrinal confusion, and that it will not stand the test of time. I pointed out earlier that the Philippine Constitution requires that foreign military bases, troops, or facilities shall not be allowed in the Philippines, except under a treaty recognized as a treaty by the other contracting State.

Has the US government recognized the VFA as a treaty? The answer is no.

The US Constitution provides that the US President has the power to make treaties, but only “by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur.”¹

Has the VFA been concurred in by two-thirds of the US Senate? The answer is no.

The Nicolas majority opinion claimed that the VFA was submitted to the US Senate. This is misleading. The VFA was submitted as a compliance with an American law called the Case-Zablocki Act. This Act requires the US President, through the Secretary of State, to transmit to the US Congress, the international agreements entered into by the US government, or by its officials or agencies, which are not characterized as treaties. Thus, the US government does not characterize the VFA as a treaty. Therefore, the VFA, since it does not comply with the requirement of the RP Constitution, is unconstitutional and void in our country.

But because of the Nicolas opinion, the VFA is now part of the law of the land, to use RP constitutional language. By contrast, since the VFA is not characterized as a treaty in the US, it is not the supreme law of the land, to use US constitutional language. The US does not consider the VFA as a treaty, and it certainly does not consider the VFA as a self-executing treaty. Thus, US courts are not necessarily bound by it, because the US government considers the VFA as a mere executive agreement.

VFA Void for Vagueness

In the language of constitutional law, the VFA is void for vagueness, because it fails to define the terms “visit”, “temporary”, and “military activities.” Under the vagueness doctrine, it is impermissible for a statute to delegate basic policy matters to administrators, to such a degree as to lead to arbitrary and discriminatory application.

a. No Definition of “Visit”

Filipino political leaders involved in the signature and ratification of the Visiting Forces Agreement with the United States (VFA) appear to have limited themselves to the title of the VFA, and never bothered to explain the term “visit” in the text. They gave the impression that under the VFA, the US military forces would be just “visiting”.

The document is officially titled: “Agreement between the government of the Republic of the Philippines and the government of the United States of America regarding the treatment of US armed forces visiting the Philippines.” But there is no definition of a visit.

Before the VFA was signed by the two governments, President Ramos described the VFA as intended for military exercises of US and Philippine forces. Endorsing the VFA for Senate concurrence, President Estrada emphasized in his press statements that the VFA pertained only to “military exercises”. Then Secretary of Foreign Affairs Siazon, who signed the VFA for the Philippines, expressed himself more clearly: “The VFA only speaks of American military forces who come to the country to conduct joint military exercises with Philippine troops.”² Deliberate or not, these pronouncements, authoritative as they are, give a false or even deceptive impression of the VFA.

b. No Definition of “Temporary”

The VFA, Article 1 titled “Definitions” does not define what is “temporary.” It merely states: “’US personnel’ means US military and civilian personnel temporarily in the Philippines.”

Black’s Law Dictionary, 8th edition 2004, defines “visit” in international law as a naval officer’s boarding of an ostensibly neutral merchant vessel from another state to exercise the right of search. The same law dictionary defines “temporary” as continuing for a limited (usually short) time.

The Oxford Dictionary of Law, 6th edition 2006, defines “visiting forces” as: “forces from abroad, including their civilian components.” It does not bother to define “temporary.”

In the absence of conventional dictionary definitions of the words “visit” and “temporary” as terms of international law, it becomes necessary to define these terms in any international agreement. When the VFA failed to define these terms, then the failure to do so was done willfully and in bad faith. These undefined terms are each a lacuna, a blank space. These lacunae in substantive information are purposely devious, in order to allow the US forces to stay indefinitely in our country.

Thus, built into the VFA is a mechanism of flexibility that can deploy the US military forces in Philippine territory in a broad spread of strategic purposes, making the VFA an omnibus of US military presence of various forms and of varying objectives.

The history of the Senate contains certain defining moments, and one of them was Senate rejection of a new proposed agreement for the retention of the US military bases. But that defining moment appears to have been blurred, if not erased, by the VFA, which restores US military presence in our country.

c. No Definition of “Activities”

The political leadership that has given a deceptive description of the VFA as designed only for “military exercises” will be put to shame by their own reading of the VFA text, which NEVER uses the term “military exercise”. The Preamble merely states: “Reaffirming their obligations under the Mutual Defense Treaty of 30 August 1951.” By contrast, the text of the VFA uses the term “activities,” without defining it or setting its limits.

Although the “activities” of US military forces under the VFA are unbounded, not one office or agency of the Philippine government – including the Senate – has ever raised the fundamental issue as to the magnitude of US military presence that the VFA allows. Similarly, the unlimited “activities” that the Philippine government may approve under the VFA has not been publicly discussed. And yet, the determination of the true nature and extent of the VFA hinges on what “activities” are contemplated by its object and purpose.

The VFA, Article 1, makes mention of “activities approved by the Philippine Government,” which may justify the presence of United States military and civilian personnel in the Philippines. Under Article 3 (1), the Philippine Government is under duty to facilitate the admission of US personnel into the Philippines “in connection with activities covered by this agreement”. What “activities” are subject to approval by the Philippine Government; and what are the “activities covered by this agreement” are questions that determine the nature, purpose, scope, and frequency of “visits” that actualize the US military presence.

The result is that the VFA, in circumvention of the prohibition against foreign military presence under the Constitution, opens the way to all forms of military activities of the US forces in Philippine territory, short of establishing a permanent military base.

Strategy of Forward Operating Bases

It must be emphasized that following the end of the Cold War with the implosion of the Soviet Union, the United States shifted its strategic policy from maintaining a permanent military base. It could be that changing power relations may require basing arrangements, in particular because of the emergence of an Enemy State, in sharpening conflict situations that may develop in US-China relations. But that is for the future.

For the present, the US policy is in favor of flexible military responses toward the development of “hybrid warfare” that calls for quick mobilization of small specially trained contingents, directed to specific incidents. This is also called “crisis response, rapid deployment unit”.

These are part of the new American military strategy of fighting so-called asymmetrical wars. Under this new lexicon, US forces establish Cooperative Security Locations where they pre-position logistical support. The Americans keep these locations small to avoid detection, but are prepared to convert them into larger military bases, when it becomes necessary.

Under cover of the VFA, the US in effect operates these mobile and flexible forward operating bases. These bases are not limited to training and capacity building. They go further by allegedly providing “logistical and intelligence support.” This term is so broad that under US interpretation, it allows actual immersion in combat operations.³

An American writer, in an article in the publication Atlantic Monthly, said:

There is high probability as well as existing accounts that the US forces are engaged in combat operations. The US Institute for Peace, a US government funded institution, describes the role of the US forces deployed in Mindanao in its February 2008 report. The deployment of US forces in Mindanao was not for humanitarian missions or civic actions, but for specific military objectives.⁴

US Task Force Engages in Combat

Two categories of military activities under the VFA have been established:

• The regular joint military exercises, which require temporary stay of US forces for the duration of each joint exercise; and


• The Joint Special Operations Task Force Philippines (JSOTF-P), here known as Task Force. The Task Force is intended to target “terrorists”, i.e. the Abu Sayyaf Group (ASG) and the Jemaah Islamiyah (JI), which are both listed by the US Department of State as “foreign terrorist organizations”. By its nature, the Task Forces, such as the JSOTF-P, normally operate in war zones as US instruments in its “global war against terror”.

The first commander of the Task Force, Col. David Maxwell, has clearly implied that combat operations are part of its business. He wrote in a military review journal this jaw-dropping example of constitutional illiteracy:

The deployment of U.S. troops was contentious in-country, because the local press asserted that U.S. forces could not legally participate in combat operations. However, a correct reading of the Philippine Constitution reveals that it prohibits only the stationing of foreign forces in the Philippines… The Constitution does not prohibit combat operations and provides an exception to this if there is a treaty in force and a treaty has been in force between the two countries since 1951. (Emphasis added.)⁵

Newspaper reports, internet sources, and US military accounts indicate that through the Task Force, US forces are engaged in unconventional warfare and combat operations. Col. Maxwell has described the Task Force that he once led as conducting operations “under the guise of an exercise”. 6 It is widely believed too, through US and Philippine sources, that US forces have established small-scale military bases in Zamboanga City and Sulu.

Detailed accounts of US military presence in the Philippines are too extensive to be treated in a short sponsorship speech. Accordingly, I am prepared with an Annex “A” that gives a sampling of the sources available, in particular from US military accounts.

Adding to the expansive meaning of the term “activities” as used in the VFA, US Defense Secretary William Cohen once declared that the VFA would enable US ships to have port calls or regular calls, aside from military training. In the period April 2001 to October 2007, more than 50 US warships entered Philippine territory and docked in various parts of the Philippine archipelago.⁷

Mutual Defense Treaty Irrelevant

Since this Senate failed to raise the fundamental issue as to the scope or magnitude of US military forces under the VFA, what “activities” have been performed in practice in the course of the VFA implementation?

By decision of the Mutual Defense Board, the US-RP Mutual Defense Treaty (MDT) has been retooled into an anti-terrorism instrument, presumably on the basis of agreement between President Bush and President Arroyo. Quite remote from the object and purpose of the MDT, anti-terrorist activities have assumed a formal vehicle in MDT.

This gives the impression that the anti-terrorism measures by US military forces in Philippine territory are being carried out as a matter of treaty obligation on the part Philippine government. Thus, there would be no need of a separate agreement on combating international terrorism, and consequently there would be no need of Senate approval through constitutional concurrence. It is under the US policy against terrorism that the US-RP joint military exercises have been conducted through the years, such as the Balikatan exercises.

It is routinely argued that the 1998 VFA merely implements the 1951 Mutual Defense Treaty. These two instruments are 50 years apart. How could the RP and the US provide in 1951 for the problem of terrorism in 1998? And if this agreement is to be taken seriously, why is there no mention of the Mutual Defense Treaty in the text of the VFA? The MDT is only mentioned in the Preamble.

The Philippine Supreme Court considers that the preamble is not an essential part of a statute: “The preamble can neither expand nor restrict its operation, much less prevail over its text. Nor can a preamble be used as basis for giving a statute a meaning not apparent on its face.”⁸

In any event, the MDT merely declares in Article 4: “Each party recognizes that an armed attack in the Pacific area or either of the parties would be dangerous to its own peace and safety, and declares that it would act to meet the common dangers in accordance with its constitutional processes.”

Thus, the MDT is irrelevant to the VFA. There is no armed attack against the Philippines; what we have in Mindanao is an insurgency. In case of armed attack in the Philippines, US response would not be automatic, but would have to undergo US constitutional processes, whatever the Americans will conceive it to be.

If China launches an armed attack against the Philippines over ownership claims to the Spratleys, will the US come to the aid of the Philippines? No. During this year’s visit to the Philippines, US Defense Secretary Robert Gates was quoted as saying: “There are a number of security challenges and obvious concerns on conflicting claims in the South China Sea. The US takes no position on these claims.”⁹

But in realpolitik, Gates was merely saying that the US at this time cannot afford to antagonize China. China has bought US treasury bonds worth US$1 trillion. These so-called treasuries are documents of loans borrowed by the US. Hence, the US owes US$1 trillion to China.

Benefits Are Illusory

The Philippines is not even among the Top Ten Military Aid Recipients of the US compiled by the Center for Public Integrity three years after the 9-11 bombings of the Twin Towers in New York.¹⁰ The following list uses round figures:

1. Israel - $ 9 B


2. Egypt - $ 6 B


3. Pakistan - $ 4.6 B


4. Jordan - $ 2.6 B


5. Afghanistan - $ 2.6 B


6. Colombia - $ 2 B


7. Turkey - $ 1 B


8. Peru - $445.8 M


9. Bolivia - $320.6 M


10. Poland - $313 M

From Malacañang, the VFA Commission has produced the following list of financial aid from the US, as follows:

Foreign Military Financing since 1999 - US$250 M
Foreign Military Sales 2001-07 - US$76.5 M
Excess Defense Articles 1999-2007 - US$76.7 M

The US calls the Philippines as a major non-NATO ally, but treats us like a shabby country cousin. In return for the VFA, what we receive is paltry, mostly in the form of Excess Defense Articles, in other words, US military junk. According to the Federation of American Scientists: “Not wanting to pay the cost of things or destroying the surplus, the US Department of Defense dispenses most of it for free, or at deep reduction through the excess defense articles (EDA) program.”

It is said that despite years of American military aid to the Philippines, the AFP remains the most poorly equipped in Asia. Paano, akala natin bibigyan tayo ng Amerikano ng pampagara, yon pala, ukay-ukay ang inabot natin!

Conclusion

This Senate should at best express the desire of the thinking Filipino to renegotiate or else terminate the VFA, for the following reasons:

1. It violates the Philippine Constitution, which provides that the US as the other contracting state should have recognized the VFA as a treaty, not as a mere executive agreement.


2. The VFA, to use a constitutional law term, is void for vagueness, in that it fails to define the crucial terms “visit”, “temporary,” and “activities.”


3. The Supreme Court opinion in the 2009 case of Nicolas v. Romulo suffers from doctrinal confusion.


4. American military forces constitute so-called forward operating bases, thus circumventing the constitutional prohibition against foreign military bases.


5. Only the preamble, not the text, of the VFA mentions the ancient Mutual Defense Treaty, which does not even provide for automatic US help in case of actual attack on the Philippines.


6. The alleged financial benefits under VFA for the most part constitutes US military junk.


7. The VFA is a failure, because after 10 years, the AFP has not modernized sufficiently to keep up with our Asian neighbors, and the terrorist groups are still active.


8. VFA 2 violates the condition laid down in the Senate concurring resolution that there shall be no supplementary arrangement without Senate concurrence.

To top it all, on 21 August 2009, the New York Times reported: “Defense Sec. Robert M. Gates has decided to keep an elite 600-troop counterinsurgency operation deployed in the Philippines.” Ladies and gentlemen of the Senate, this unilateral statement, issued with the usual American military hubris, without consultation and without the consent of the proper Philippine authorities, is no less than an act of provocation against our sovereign country. Please, President Obama, say it’s not true.

And please, ladies and gentlemen of the Senate, do not continue to look the other way, because history is looking us straight in the face. We have tried the VFA for ten years and found it wanting. It is not for this Senate to determine the life expectancy of the VFA. That power belongs to the Philippine President. Therefore, at the very least, this Senate should ask the executive branch of government either to renegotiate or to terminate the VFA.

For, as the immortal Justice Holmes said: “It must be remembered that in quite as great a degree as the courts, legislatures are the ultimate guardian of the liberties and welfare of the people.”

FOOTNOTES

1 US Constitution, Art. 2, Sec. 2.

2 With sources from M. M. Magallona, Legal Issues in the RP-US Visiting Forces Agreement, U.P. Law Center, 1998, p.1.

3 John Hendren, “Rebels shoot at US Troops in the Philippines,” Los Angeles Times, 18 June 2002.

4 Robert D. Kaplan, “Imperial Grunts,” Atlantic Monthly, October 2008, available online.

5 Military Review Journal, May-June 2004, as quoted in Focus on the Global South, Unconventional Warfare, No. 1 January 2007, pp. 8-10.

6 Focus on the Global South, At the Door of All the East, No. 2, November 2002, pp. 60-61.

7 International Herald Tribune, 4 August 1998.

8 People v. Garcia, 85 Phil. 663 (1950).

9 Ellen Tordesillas, June 2009 online.

10 Center for Philippine Integrity, “Collateral Danger: Human Rights and US Military Aid After 9/11,” issued 22 May 2007 online.

Transcript of Sen. Miriam Defensor Santiago's Interview

9 September 2009

On her letter to the Ombudsman regarding the infomercials of cabinet officials 

Nang natapos namin ang aming public hearing tungkol sa mga infomercials ng mga cabinet member na ang gamit pala nila ay pondo ng gobyerno, kaagad nagbigay ako ng kopya ng aking committee report sa Ombudsman. Sumagot naman siya agad na iimbestigahan niya. That is what we call a preliminary investigation. You’ll remember that I gave the cabinet members until the end of August to pull out their commercials in case the contract has already covered that period. 

Pero September na ngayon, at meron pa ring naiiwan according to my staff. Meron pang apat pa (VP Noli de Castro, Sec.. Ronaldo Puno, Pagcor Chair Efraim Genuino, MMDA Chair Bayani Fernando). Yung iba, pinull-out na nila. Kaya ginampanan ko ang sinabi kong gagawin. Pinapaalala ko lang sa Ombudsman na kung maari magfile na ng kaso sa Sandiganbayan. Itong mga ito, dahil ang kasong kriminal diyan ay malversation of public funds, hindi nila ginamit ng maayos ang pera ng gobyerno, o inaamin na nila sa pamamagitan ng linya sa kanilang infomercials na “Paid for by friends of _____”. Kung paid for nga ba talaga ng kanilang friends, ibig sabihin tumanggap sila ng napakalaking pera sa kanilang mga kaibigan, at iyan ay bawal ayon sa Anti-Graft Act. Kung hindi man friends nila ang nagbayad kundi sila mismo at pinalitaw lamang nila na friends nila ang nagbayad, iyon ay kasalanan pa rin sa batas dahil ibig sabihin meron siyang unexplained wealth. Kaya kahit anong sabihin nila, wala silang depensa. Kaya tayo nagbigay ng palugit, baka hindi lang nila nalalaman. Huwag naman sana sila magmatigas nang ganoon dahil nakakahiya sa presidente at maiisip ng publiko na ang ating presidente ay sumasangayon sa mga cabinet members na ito. Hindi sila nagdudulot ng karangalan sa ating presidente kundi nagbibigay pa ng perwisyo.

On its implication of FVR’s group leaving the administration coalition

Naturally it makes the coalition of the administration weaker. To what extent it is weakened is the question. It is not really a question of parting from the administration coalition because all the time those two people have been working against the administration—they have said so in public. So it was completely expected, something that you can foresee. The question there is how weak the administration coalition now be because of the separation of these two. I can say that it has virtually zero effect on the full strength of the administration because the allies of the administration depend on the administration to put the force of its moral authority and the equity of its incumbency to help them during the campaign. During a campaign, it is not the personalities who are involved to determine where the candidate will affiliate himself, it is how much resources and how much more votes the party or coalition will be able to give to the candidate.

Laos na ba sina FVR?

Yes. In effect they are bargaining because they were bargaining and they have actually fulfilled their threat, but we shall see whether anyone will go with them or they are all alone crossing the sea and wandering around the desert. I think that that will happen. It will be biblical in proportion.

Is this a loss for President Arroyo?

Hindi naman, dahil noon pa they were taking potshots at her already. And when she caught them with their hands in the cookie jar, she gave their wrists a slap, and they pretend to be offended.. But the thing is, they were caught in the act. So I think that this is so much better because it clears the air.

On FVR supporting Sen. Aquino’s bid for the presidency

I don’t know if he has forgiven Tita Cory Aquino for marching in the streets against him when he tried to amend the Constitution so he could extend his stay in power. I was together with my ninang, Pres. Aquino, when she did that because I was also against charter change at that time, and I won the case in the Supreme Court which I myself argued. So I don’t know if he can get over that.

On Sen. Aquino’s decision to run as president

That is a foreseeable event. The question now is what will the surveys show. There are people willing to say hallelujahs every time there is a new leader in the horizon, hoping that they could get something out of it. The hallelujah chorus is always present in any presidential camp. But the issue will be how will Sen. Aquino fare in the next presidential elections. He has now confirmed that he is a presidentiable.. We shall now see, since the person he replaced placed only about number four in the recent surveys, whether he can exceed that number, and then we would see if it was right for Sen. Roxas to give way for Sen. Aquino. But if not, then the LP will be having a tough time in the presidential campaign.

On her advice to Sen. Noynoy Aquino 

Obviously everybody does know that surveys have already taken the place of party conventions. You’ll notice that political parties no longer hold conventions to determine who will be their candidate. People just go by survey. We tried to legislate or regulate these survey companies but we were unsuccessful here in the senate. 

On the word war between former President Estrada and Sen. Lacson, with Sen. Lacson to deliver a privilege speech next week

You can bet that Sen. Jinggoy Estrada will certainly rise also on a question of privilege maybe the next day so that he will have enough time to rebut all the points. But I don’t know whether all of these are related to our basic function of legislation.

MIRIAM: US TROOPS IN COMBAT UNDER VFA

Sen. Miriam Defensor Santiago, chair of the Legislative Oversight Committee on the Visiting Forces Agreement, said that she plans to recommend to the Senate the abrogation of the RP-US VFA, because US troops are allegedly going beyond military exercises and have extended their presence in actual combat in Mindanao . 

“My reference is Col. David Maxwell, commander of the Joint Special Operations Task Force Philippines ,” Santiago said. 

At the hearing held yesterday (Thursday), Santiago cited the publication Focus on the Global South, quoting Maxwell as saying: “The Philippine Constitution does not prohibit combat operations and provides an exception to this, if there is a treaty in force.” 

“By his own admission, Col. Maxwell is using the Task Force to engage in battle in Mindanao in the US war against terrorism, which includes the Abu Sayyaf and the Jemaah Islamiyah,” Santiago said. 

She said that although RP and US authorities claim that US troops in Mindanao are only engaging in so-called military exercises, this term is not used in the VFA itself. 

“The VFA never uses the term ‘military exercises.’ Instead, it uses the word ‘activities.’ This is the loophole in the VFA,” she said. 

She said that the Task Force deploys US forces in unconventional warfare and combat operations, and Maxwell himself admitted in a US interview that he is operating ‘under the guise of an exercise.’ 

Santiago said she suspects that there are “small-scale military bases” in Zamboanga City and in Sulu. 

Santiago also criticized the Supreme Court decision in the 2009 case of Nicolas v Romulo. 

“In Nicolas, the Court ruled that the US has complied with the Philippine constitutional requirement that the VFA should be recognized as a treaty by the US . I respectfully disagree,” she said. 

Santiago, last year’s Philippine nominee to the International Court of Justice, said that under the US Constitution, a treaty is an international agreement which the US President makes “by and with the advice and consent of the Senate.” 

“The US Senate never consented to the VFA. In US law, it is not a treaty but an executive agreement. Therefore, it violates the RP constitutional requirement that foreign military troops will be allowed in the Philippines only under a treaty recognized as a treaty by the US ,” she said. 

Santiago said that the use of the word “visiting” in the VFA is misleading, because the US troops are still in the Philippines after 12 years. 

“If the US wants to use Philippine territory in its alleged war on terror, they will have to negotiate a treaty with the RP. In the meantime, in my humble view, the presence of US troops in Mindanao, and even worse, their participation in combat operations, are illegal,” she said.

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 TO GRILL CABINET OFFICIALS ON INFOMERCIALS IN SENATE HEARING

Senator Miriam Defensor Santiago, chair of the Senate economic affairs committee, today said she has set the public hearing on the controversial infomercials of cabinet officials this Friday, 14 August 2009. 

Santiago said she will issue invitations to the concerned cabinet members to appear in Friday’s hearing. 

“If they do not appear on Friday, I will issue a subpoena to compel them to appear before the Senate,” she said. 

In a resolution she filed Monday, Santiago cited the following cabinet members and other high-ranking government officials who appeared in government-funded infomercials:

• Vice-President Noli de Castro 


• Interior and Local Government Secretary Ronaldo Puno 


• Health Secretary Francisco Duque III 


• Finance Secretary Margarito Teves 


• Defense Secretary Gilberto Teodoro 


• Public Works and Highway Secretary Hermogenes Ebdane 


• Education Secretary Jesli Lapus 


• Agrarian Reform Secretary Nasser Pangandaman 


• Philippine Amusements and Gaming Corporation (Pagcor) Chair Ephraim Genuino 


• Technical Education and Skills Development Authority Chair (Tesda) Augusto Syjuco 


• Metro Manila Development Authority (MMDA) Chair Bayani Fernando 


• Makati Mayor Jejomar Binay 

The feisty senator said she will ask these cabinet officials to explain the legal basis for the use of public funds for advertising themselves in the infomercials. 

Santiago said she will also invite the finance officer and the Commission on Audit (COA) resident auditor of each department to shed light on the sources of funding of the infomercials. 

She said the infomercials are being used to campaign early, in violation of the Constitution and election laws. 

“Unless a person is blind, deaf, or dumb, it is crystal clear that the alleged infomercials of cabinet members are intended to camouflage the violation of the campaign ban, for the simple reason that these cabinet members engage only in such infomercials in the year prior to election year and at no other time, and for no other reason than personal political publicity,” she said. 

“By using public funds, these government officials have the financial mechanism to campaign ahead of others,” she added. 

Santiago had earlier filed a petition with the Supreme Court (G.R. No. 184044, Miriam Defensor Santiago v. Comelec), seeking an injunction against some of her fellow senators from conducting a premature campaign in the guise of endorsing certain commercial products. 

“If I want to enforce the campaign ban against my own colleagues in the Senate, with even more reason I should seek the enforcement of the ban against cabinet officials who are engaged in premature campaign through the infomercials,” Santiago said.

MIRIAM PROPOSES ADOPTION OF BRAZIL'S BOLSA FAMILIA PROGRAM

Sen. Miriam Defensor Santiago, chair of the Senate Economic Affairs Committee, will file a bill providing conditional cash transfers (CCTs) to extremely poor families. 

Dubbed as the Lingap Sikap Act of 2009, the bill aims to offer grants to impoverished households under the condition of committing to send their children to school regularly and bring them to health care centers for vaccination and check-ups, among others. 

“Investing in our children will break the cycle of intergenerational transmission of poverty. As current poverty is addressed by the CCTs, future poverty will be reduced by ensuring the education and health of Filipino children,” Santiago said. 

Santiago’s bill is inspired by the CCT progam from Brazil called Bolsa Familia, the program from which Department of Social Welfare and Development (DSWD) also based its current pro-poor Pantawid Pamilyang Pilipino Program (4Ps). DSWD Secretary Esperanza Cabral, who was part of the Philippine delegation to Brazil, said the government was very keen in expanding the 4Ps program in the country after their visit to the Latin American country. 

“The passage of this bill will make the cash transfer program of the DSWD more permanent and long term,” said the senator. 

Santiago said that the program will also strengthen and facilitate improvements in the government’s social welfare institutions, programs, and services. 

The Bolsa Familia program in Brazil is considered the pioneer CCT program in Latin America. Its success triggered adoptions in several countries including Chile, Mexico, Indonesia, South Africa, Turkey, and Morocco. Aside from reducing poverty, it created a positive impact on the adult labor supply, reduced the malnutrition rate, and created an increase in total spending, food consumption, and education spending.

MIRIAM SEEKS END TO ABUSIVE CREDIT CARD PRACTICES

Sen. Miriam Defensor Santiago filed two bills that she said would address consumers’ complaints against abusive practices by credit card companies.

Her Senate Bill No. 3315 seeks to prohibit retail stores from imposing surcharges, extra charges, or additional charges over and above the price tag on the consumer goods and services. 

“Its main purpose is to make retail stores use only one price tag for every product they sell. It also makes the stated price on the tag the same for all customers, whether they are paying cash, credit card, or debit-ATM card,” Santiago said.

Santiago’s bill is derived from the Department Administrative Order No. 10 issued by the Department of Trade and Industry, and the senator said that her bill seeks to give the department order a more permanent status rather than its present form.

“This would ensure stability in its enforcement. The bill also increases the penalties provided in the order, and it includes other methods scheming retailers use to circumvent DAO No. 10,” Santiago said.

Santiago, who filed almost one-fifths of all Senate bills in the Fourteenth Congress, also called for the passage of S.B. No. 3292 which prohibits the delivery of any credit card application, pre-approved written solicitation, or credit card to people under twenty-five years old.

According to Santiago, the availability of credit cards coupled with a young person’s lack of financial experience can easily lead to an accumulation of an overwhelming amount of debt. 

“In times of financial crisis, it is despicable for credit card companies to take advantage of the inexperienced youth unprepared for financial responsibility. This abusive practice must be put to an end,” Santiago said.

MIRIAM HITS HOSPITALS FOR NON-DISCLOSURE OF PRICES

Recognizing the right to choose one’s health care provider, Sen. Miriam Defensor Santiago filed Senate Bill No. 3324 compelling hospitals to reveal the prices of their services. 

Santiago’s bill, also known as the “Hospital Price Disclosure Act,” requires both public and private hospitals to prominently post at each admission site the full disclosure of prices for medicine, and hospital and surgical procedures. 

“With several medical providers to choose from, patients need access to reliable and adequate information to make rational and economical choices,” Santiago said. 

According to Santiago, undisclosed rates of medical care hinder patients from choosing which hospital or health care provider offers good service for less cost. 

“It has been common practice for hospitals to not reveal the costs a patient may incur unless he or she bills out. Because of this, the patient is often shocked at the expense he or she incurs after staying in the hospital,” said the senator. 

The senator said that the treatment of ailments and health conditions such as heart disease would not be possible with home remedies, and would necessitate professional medical care. 

“The power to choose which hospital to go to should be with the patient especially in these times of global economic crisis,” Santiago said.

One-fifths of Senate bills filed by Miriam

Senator Miriam Defensor Santiago filed the most number of bills in the Senate with 704 and co-authored 25 others. 

The senator’s bills almost comprise one-fifths of the 3,868 bills filed by all senators for the Fourteenth Congress. She also topped the list for most number of resolutions filed with 277. 

Santiago, despite her chronic fatigue syndrome, consistently led her fellow senators in submitting the most number of legislative measures since her election in 2004. Her medical condition prompted the senator to file for an indefinite sick leave last year and early this year. 

Notable among her bills is the Anti-Billboard Bill passed by the Senate but ignored by the House of Representatives in the last congress, reportedly because of the influence of a moneyed billboard lobby. 

The measure, which places a strict ban on the billboards that fail to comply with certain size and location requirements, recently passed the committee level as Committee Report No. 85 and is now waiting to be sponsored on the Senate floor. 

Santiago’s Anti-Video Voyeurism Bill passed second reading before the Senate’s sine die adjournment in the wake of the recent Senate investigation on the proliferation of the sex videos involving Dr. Hayden Kho and various women. The bill aims to protect the privacy and dignity of every person by criminalizing photo and video voyeurism. 

Senate Bill No. 1757, or the Clear Sidewalks Act of 2009, sponsored by Santiago and co-authored with Sen. Benigno Aquino III, passed third reading before the adjournment. 

The bill prohibits the use of streets, sidewalks, avenues, alleys, bridges, parks, and other public places for commercial or personal use, and requires citizens to apply for the temporary use of sidewalks for special community-wide occasions and other civic or charitable purpose.

MIRIAM: PROSECUTE HAYDEN KHO FOR ‘PSYCHOLOGICAL VIOLENCE’

Senator Miriam Defensor Santiago today said that Dr. Hayden Kho can be prosecuted under Republic Act No. 9262, or the Anti-Violence Against Women and Their Children Act (VAWC), for committing “psychological violence” against actress Katrina Halili. 

Halili accused Kho of videotaping their sexual encounters without her knowledge and consent. The videos have since surfaced in the internet and copies in DVD format are being peddled in the streets. 

Under the VAWC, “psychological violence” refers to acts or omissions causing or likely to cause the mental or emotional suffering of the victim, such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse, and mental infidelity. 

Santiago said that under the law, a person who has or had a sexual or dating relationship with a woman is guilty of committing psychological violence against her through acts causing her mental or emotional anguish, public ridicule, or humiliation. 

According to Santiago, if Kho is found guilty by a trial court of committing psychological violence against Halili, he faces from 6 years and 1 day to 12 years imprisonment, and a fine of not less than P100,000 but not more than P300,000. He must also undergo mandatory psychological counseling or psychiatric treatment under the watchful eye of the trial court. 

Santiago said Kho cannot escape criminal liability by claiming the defense of insanity. According to media reports, Kho allegedly attempted suicide in the past. 

“The Supreme Court has already ruled in countless cases that insanity exists when there is a complete deprivation of intelligence in committing the act,” Santiago explained.  

“For the defense of insanity to be persuasive to the court, the accused must be completely deprived of reason or acts without the least discernment, because of a complete absence of the power to discern or total deprivation of the freedom of the will,” she explained. 

The sex video that leaked in the internet clearly shows that Kho set up the camera, carefully angled it, and positioned Halili so that their act would be caught on tape.  

“The whole episode would require intelligence, care, planning, and subterfuge. That is contrary to the definition of insanity as ‘total deprivation of freedom of the will,’” Santiago said.  

“Before the alleged filming of the video, Dr. Kho was somewhat of a minor celebrity who had been frequently interviewed on national television and seen in public events. In none of his public appearances did he conduct himself in a manner that would suggest insanity,” she said. 

“The presumption of law is always in favor of sanity. The defense must prove that the accused was insane at the time of the commission of the crime for the accused to be exempted from criminal liability,” Santiago said. 

The feisty senator, who is a former trial court judge, also said that even those who sell, give away, or exhibit the sex videos are liable under Article 201 of the Revised Penal Code. They face from 6 years and 1 day to 12 years imprisonment, or a fine ranging from P6,000 to P12,000, or both imprisonment and fine. 

Even before this scandal erupted, Santiago already filed a bill to criminalize photo and video voyeurism.  

Photo and video voyeurism is the act of capturing an image of the private area of an individual without their consent, and knowingly doing it under circumstances in which the individual has a reasonable expectation of privacy. 

Santiago filed Senate Bill No. 1100, or the “Anti-Video Voyeurism Act,” last 4 July 2007. Senator Francis “Chiz” G. Escudero’s Committee on Justice and Human Rights has already conducted public hearings on the bill, and has submitted to the plenary Committee Report No. 65 last 2 June 2008. The legislative measure is still waiting to be calendared in the Senate plenary session. 

Santiago, as principal author of the bill, and Escudero, as chair of the committee that conducted public hearings on the bill, are co-sponsors of the measure. 

“Under my bill, it is not even necessary that the photo or video shows the aggrieved person engaging in sexual intercourse,” Santiago explained. “As long as a private area of the victim is visible in the photo or video, whoever captured the image without the consent of the victim, or captures the image with his or her consent but broadcasts the image without his or her written permission, is liable under this act.” 

The bill defines the “private area of the individual” as the naked or undergarment clad genitals, pubic area, buttocks, or female breast. 

“For the victim, it is obviously very embarrassing and degrading to be photographed or videotaped in a compromised situation. It is a form of invasion of personal privacy,” Santiago said.  

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.