Transcript of Senator Miriam Defensor Santiago’s Interview

28 November 2007

On the UN findings on the extrajudicial killings in the country

It is both good news and bad news. The bad news is that it says that it does not believe the Armed Forces of the Philippines ’ explanation about extrajudicial killings and people who have disappeared as part of the purge of the Communist Party. Instead, it appears, according to the report, that those people who have died or disappeared have been victims of military abuses.
The good news is that the report does not say either that it is official policy of the Arroyo administration to liquidate leading members of the extreme left. After all, the Communist Party and the NPA have been declared terrorists by other countries. In that sense, the report is even-handed. One thing that we can consider as a plus for the Arroyo administration is that it invited Mr. Alston to come here. He could not have come, under UN rules, unless an invitation has been extended by the administration. This is evidence of the good faith of the Arroyo administration.
What will happen here is that in his capacity as a fact-finder, he will submit this report. In fact, his report is just the final draft of his preliminary draft since the procedure is that the rapporteur must first issue a preliminary draft for comment by the host state before he can draft the final form. This is the final form of the report, but he will now submit it to the Human Rights Council in the UN, which will take it up and decide 1) whether the findings and facts are judicious, meaning if they are reliable, and 2) what action should be taken or recommended by the Council to the General Assembly with respect to the Philippines.

Can it be reversed?

Yes, because it is yet not binding to the Human Rights Council. He is merely an agent or a subordinate of the Council. He is bound to submit it for the Council’s assessment and for their action, whatever it might be.

What can the government do about it?

The government will have to make a more determined effort to educate the rank and file of our soldiers that violence should not be used as a measure for counterinsurgency unless it is employed in self-defense. It cannot be a strategy or a tactic to kill people anonymously to put the fear of the military in them. It is not allowed by the constitution and international law.

There are many ways of issuing instructions to soldiers. You can either talk verbally to them, or you can give them instructions in the form of body language or discreet implications employed n verbal instructions. If the administration makes it crystal clear that it will not tolerate these practices, that should filter down to the ordinary soldier.

The rapporteurs of the United Nations are among the most qualified in their fields of work. The usually come from the academe and have no political power.
In the whole, I find the report to be acceptable.

On the government’s efforts to help the OFW in death row in Kuwait

The case emphasizes the importance of a transfer of sentenced persons treaty, which we just have concurred with respect to Spain . We already have concurred such a treaty with respect to Hong Kong and Thailand , and we hope to concur in the very near future with Canada and Cuba , but most importantly with the Middle Eastern states.

There is nothing we can do on a legal level when the court of another country sentences a
Filipino for crimes as defined in that country. This is only an appeal from one head of state to another. There is no legal force. It may have some legal force. But the best thing to do is to work for a TSP treaty if we cannot get executive clemency from that state.

On the objection from the Chiong family to the passage of the RP-Spain TSPA for allegedly favoring Larreñaga.

It is perfectly understandable. In fact, that is the reason why Sen. Estrada abstained because the Chiong family apparently were ably to contact him. In the case of Sen. Arroyo, he also abstained because his wife, I believe, is one of the counsel of one of the parties in the case. Basically, there is no objection to the TSPA per se for any country, but there is of course objection on the part of the victims’ family. However, our attitude in the Senate was that one case cannot possibly prejudice the fate of seven Filipino prisoners in Spain .

During the interpellations, I did find out that according to Human Rights Watch, the jails in Spain are also congested, overcrowded, and there are not enough facilities for the number of prisoners.

On the postponement of the Comelec’s budget defense in the Senate

Whenever they do not want to appear, I will always want to discipline them. Because Comelec is not ready for budget defense today, I am recommending that we should lop off Php 277 million. That would only leave them Php 4 billion (original proposed busget is Php 4.277 billion). I think, out of basic courtesy to the Senate as an institution and to the fact that the senators prepared interpellation and, in my case as subcommittee chairperson, defense. They should have at least the respect to prepare themselves. You give an excuse slip during final examinations day to the teacher and say “I am sorry I will be absent because I am not prepared for the test.”

On the rush sale of geothermal plants

All I am saying is that I refused to be rushed on these sales. (They are saying that) The motion to accelerate the sale is based on the concept of privatization which is already mandated by law. I refuse to accept that argument because these are multibillion entities, such as Transco. You get one-tenth percent of billions and you get multimillions.

If this sale, based on these conditions, pushes through will there be kickbacks?

I am afraid so. Because why hurry it? The basic philosophy of Epira is not privatization. It is not to give our state assets to private individuals, but to reduce the cost of electricity in the country. This is because according to our lawmakers at that time private owners would run their businesses more efficiently and that would result to lower electricity rates. But as I’ve shown in my letter to the House panel of the Powercom, that is not necessarily the case with the sale of the geothermal plants. If you quote the price in dollars, what happened with the IPPs will happen all over again, because if you do, whenever there is a currency fluctuation it is the consumer who will have to make the so-called adjustment mechanism, which is actually an increase in the price of electricity.

I do know, as an experienced warrior in this field, that someone is going to make money here. I just want the public to be aware of that, because maybe their propaganda might be so effective that they would begin to charge the JCPC of inaction. No we are not. We are studying every case.

Transcript of Senator Miriam Defensor Santiago’s Interview

16 November 2007

On the Transfer of Sentenced Persons Agreement between the Philippines and Spain
Kung matapos [ang pagpasa sa] treaty, pwede nang ipalipat ang mga convicted na mga Pilipino (mula) sa Espanya. Meron na tayong ganitong treaty sa Hong Kong at sa Thailand . Meron pang mga treaty na tapos na ngunit hindi pa kumpirmado ng Senado galing sa Canada at Cuba , at susubukan natin na ang ganitong uri ng mga treaty ay mapalawak natin para sa ating mga overseas Filipino workers, lalo na ang mga naco-convict halimbawa sa Middle East . Para silang incommunicado bilang mga preso doon at wala silang pamilya doon na bibisita sa kanila. Iyan ang pakay natin.

Nag-public hearing kami ngayong araw, at sa Lunes ay iso-sponsor ko na sa Senate floor, para pagkatapos ng mga debate ay maghihintay na lang ng tatlong araw para maaprubahan na for third reading sa Senado.

Ilan ang Pilipinong nakakulong sa Espanya?
Pito lang naman sila, out of about 50,000 Filipinos. Ang problema natin sa mga natapos ng treaty sa Hong Kong at Thailand ay hindi pa tayo nag-iimplement ng mga treaty na iyan dahil sa ilalim ng lengguwahe ng mga treaty na ito ang Pilipinas ang gagastos para sa pag-uwi ng mga Pilipino. Walang appropriations sa budget para diyan. Kaya kinakailangan kapag humingi tayo ng concurrence ng Senado, hihingi rin tayo ng kahit limang milyong piso man lang para pambili ng tiket ng mga uuwing sentensyado o convicted persons.

I raised many cracks (in the treaty) or gray areas that are not covered so that they could be covered by the implementing rules and regulations by the Department of Justice.
[Larrañaga] will be the most celebrated beneficiary of the treaty dahil siya ay dual citizen. Citizen siya ng Pilipinas at citizen din siya ng Spain . Dito siya nakakulong pero hindi pa tapos ang kaso niya dahil ang sentensya niya ay reclusion perpetua [at] pinaapela niya ang kanyang sentensya sa Korte Suprema. In his case, the judgment is not yet final. The treaty will apply only if the judgment has become final.

Pero ipalagay natin kapag nasentensyahan na siya ng Korte Suprema, kung gusto niya at magrequest siya dahil Spanish citizen siya, or if the Spanish government makes a request and he consents, doon siya ikukulong sa Espanya. May sasabihin diyan ang pamilya ng biktima, natural, dahil gugustuhin nila na dito sa Pilipinas (siya makulong). Kaya pag-iisipan natin ang mga kasong ganoon. Baka mamaya, ang pakiramdam ng publiko ng Pilipinas ay nadehado ang pamilya ng mga biktima. We cannot entertain any request for transfer from the convict or the state until judgment has become final in our Supreme Court, in the case of Larrañaga.

Who must initiate the request for transfer, the sentenced person or either of the governments?
It is indispensable that the prisoner must consent whether or not he initiated it. Pwede na i-initiate ng Spain , as long as the prisoner later on consents, because we are talking of starting the process. In any event, even if the process has started, if the prisoner does not give his written consent, then everything else that took place before will become invalid.

On the JPEPA
The last hearing will be conducted on Friday next week, 23 November 2007. I am leaving for the ASEAN aspect for my candidature for the International Court of Justice the following Sunday. I will be present on Friday, but for the purpose of continuity, the chair of the secondary committee will continue to preside because he presided already over the additional hearing. He (Senator Roxas) and I have already agreed in principle that we have to find a way so that the treaty will not be declared unconstitutional by the Supreme Court but will also be recipient of the approval and consent of Japan . It is very, very tricky. It depends on the way the language (of the treaty) will be couched. Remember that no state, particularly Japan , wants to lose face, so we cannot say that this treaty is unconstitutional under Philippine law—it is my prediction as a humble scholar of constitutional law that it will be declared unconstitutional by the Supreme Court.

Unfortunately under international law, a state cannot relieve itself of the obligation to implement a treaty just because its Supreme Court ruled that it is unconstitutional. Philippine constitutional law is internal to us, and does not have any validity with respect to an interstate dispute before an international court. We cannot plead that as a defense, but we cannot enforce this treaty because the Supreme Court says that it is unconstitutional. So we have to find a way so that we can accommodate the constitutional dimension in the treaty, but at the same time be able to encourage or persuade the Japanese government to give its consent because this is a bilateral treaty—the other party must always give its consent, both to the treaty and to any subsequent conditions and provision, in which in international law could be called a reservation, understanding, or declaration. The supplemental agreement, or the clause that will assure constitutionality of the treaty for the country, will be contained either in a reservation or an understanding or declaration or exchange of notes. In any event, it will require approval of the Japanese government.

The most practical thing to do, as chair of the committee, is to draft the diplomatic language and consult with DFA and the Japanese ambassador on whether the language is diplomatic enough that it will be considered acceptable by Japan, because if Japan does not consent nothing will come out of these efforts. We cannot just run the risk of campaigning just for concurrence by the Senate plenary only to have it rejected as unconstitutional by the Supreme Court. It will already be an embarrassment for both President and the Philippine Senate who would have concurred. At the same time, it would be a ground for dispute with Japan in an international court. It is in fact crucial for us to be able to deal with the aspect of constitutionality raised by the oppositors but in a manner acceptable to the Japanese.

We must save the treaty because there are good provisions there. We just have to make sure that it does not work to the disadvantage of our people. While I am hoping that I may accomplish this before the Christmas break, it all depends how hospitable an attitude the Japanese ambassador will show. I am very happy that the Japanese ambassador has not rejected any effort to put a postscript to the treaty. Normally other state parties will be very adamant if they already have the upper hand in a treaty, but at least he is very open-minded. In effect, we will just be applying the provision already in the treaty that within one year, each party may expand its reservations. The problem here is this: When they were negotiating the treaty, the Japanese government’s panel were very alert. They made very comprehensive reservations. Unfortunately for us, the reservations we made are too few. What happens now under the treaty is that the Philippines is in a disadvantage. The negotiators made reservations to the “National Treatment” clause, the “Most Favored Nation” clause, and the “Prohibition Against Performance Requirements.” Under the “National Treatment” clause, the state must accord to the nationals of the other state the same treatment but you are allowed to make reservations. There are reservations that are much longer than ours.

This kind of comprehensive reservations that Japan made in the treaty is enjoyed by other countries, such as Malaysia and Thailand , which have already ratified their respective treaty with Japan . I will have to explain in the Senate floor why Japan ’s reservations are longer, and why Thailand and Malaysia have longer reservations than us. What we need to do is to make a provision, or to make sure that the article in the treaty that provides for further reservations within the period of one year will include reservation that will ensure constitutionality of the treaty.

On the recent bombing incidents
We have not yet established a pattern. The recent findings even by foreign police teams were that the Ayala blast was caused by an industrial failure. The initial findings of the PNP are that the blast that killed the congressman was only focused on his own personal assassination. We just have to wait for other senators and congressmen to be assassinated by bombing so that we can declare that there is a pattern of assassination that already indicates terrorism.

But before that, we could draw no conclusion. I don’t think that there should be cause for concern among the senators and congressmen since they are always declaiming about their great love of country. More often love of country is illustrated by young men who go off and sacrifice their lives in the battlefront, so I don’t see why very old people or middle aged people should be so afraid to die for their country when young people are automatically shipped to die for their country. So I am counselling everyone in the Congress: wait until you get assassinated. Then we shall know whether this is terrorist or whether this is just assassination.

If you have this series of blasts, of course foreign investment will respond accordingly. So far it hasn’t. It means that the international business community believes that these incidents are anecdotal. That is a very good sign. It means that the international business community believes that the fundamentals of the Philippine economy are sound.

On whether President Arroyo can take back former President Estrada's pardon
I have said that, normally, if the person pardoned violates the conditions of his pardon, then of course the pardon becomes null and void. But I have to see the pardon itself as signed by the President. It was reported in the papers that it was full, complete, and absolute. If that is the case, it is not a conditional pardon. There is no condition for it. Even if he, let’s say, violates the law, then the pardon will continue. It depends on the language employed. I am only trusting what I read in the papers; if it is accurately reported as having been “full, complete, and absolute pardon,” then the mere fact that he has violated the law will of course incur liability in the prosecution service for him, but it will not necessarily lift the pardon.