Transcript of the interview with Sen. Miriam Defensor Santiago

19 November 2007

On the continuation of the ZTE-NBN hearing
This is already a hypothetical case because the President has already ordered the cancellation of the ZTE contract… so wala na tayong pag-aawayan pa, kung hindi sino ang lumabag sa ating batas, dahil ang mga taong iyon—dahil nga napakalaking eskandalo ito—ay dapat idemanda sa Ombudsman. Pero ang Ombudsman ang may kapangyarihan na gumawa ng preliminary investigation, ibig sabihin imbestigahan ngayon kung may suspects tayo. Kaya kung iimbestigahin pa rin ng Senado, magiging doble na kasi hindi naman pwedeng ang Senado and mag-imbestiga para sa Ombudsman. If we conduct the investigation here in the Senate at this point, we will simply be anticipating and duplicating the function of the Ombudsman. In fact, we may even be accused of usurping the powers of the Ombudsman. Anyway, whatever happens at this point, the ultimate result will simply be an endorsement to the Ombudsman. So I believe that the Senate should now turn its attention to other more urgent matters such as the national budget, which is already upcoming.

If Sec. Neri cites executive privilege
In my view, this makes Mr. Neri suspect. We could just include him among those whose names we think the Ombudsman should investigate in a preliminary investigation. But there is no more point belaboring the facts because the Senate is not a fact-finding body. We are merely inquiring so that we will know what law to pass. We already know from all the hearings that have been conducted more or less what will be the shape of the law that is needed so that we can avoid this kind of a scandal in the future.

It will quite also set a precedent because kung ganun rin lang na pababayaan siya ng komite ng Senado ay pwede naman pala na i-subpoena ang mga testigo at sasabihin na lang nila na ayaw nila at may executive privilege sila. This is to set a deterrent to other people who might cover up the truth simply by citing executive privilege because as the Chief Justice of the Supreme Court said, the principle of executive privilege remains alive and kicking. It is just a question of making sure that the committees of Congress will not abuse this power.

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

27 September 2007

On the possible impeachment of Comelec chair Benjamin Abalos

Impeachment is not strictly a legal or judicial process. It is part judicial and part political. That (impeachment of Abalos) would depend on whether they can raise the numbers in the House of Representatives. Well, there is already a ground because under the Constitution, an impeachment proceeding can be initiated on the ground that there is betrayal of public trust and that there has been culpable violation of the Constitution.

On her statements at yesterday’s ZTE hearing
I will never denigrate the Chinese because I married one. My husband is a Yap, his mother was Chinese. I’ve always been a great admirer of Chinese civilization. I made a trip to China when I was not a public official to see their historical monuments and imbibe their culture.

We were talking about a Chinese contract. My point was if you are a public official and there’s a pending government project with you, to socialize with any of the parties of the contract is very suspicious.

Tomorrow, I will write a letter to the Chinese ambassador.

On the JPEPA

If this were a boxing match, this is already round three of the JPEPA. I already gave the first two rounds to those against the JPEPA. Today, I still give round three to those opposed to the JPEPA. They were presenting the cases of other countries in Southeast Asia which also have economic partnership agreements or EPAs with Japan. Not only that, but they also presented empirical evidence, meaning to say, the experience of these other countries which have EPAs with Japan, showing that there is serious danger that there might be importation of hazardous wastes into our country, notwithstanding our domestic laws on toxic wastes and on ecological management. What we wanted the administration to do was to refute the empirical evidence and not just talk theoretically. Theory is far removed from reality. Again, the administration was unprepared. They didn’t even have prepared statements. We were only treated to what in effect were speculations that it will not happen. What we need in our Senate hearings is actual evidence in actual histories of countries that have EPAs with Japan.

I’m afraid we only have two more hearings left. So far, those opposed to the JPEPA has already won the majority of the rounds, three out of five. I’m afraid that this agreement may not even muster a majority vote in my committee, much less a majority vote in the Senate itself. It will be my obligation as committee chair to defend this treaty. Right now, I am not receiving enough solid arguments that will enable me to persuade the Opposition who are in the majority of the Senate. If I cannot defend this treaty, it would get rejected in the Senate floor. So I would request advice from my colleagues if we even still need to file a committee report. Of course, under the Senate rules, we must file a committee report, whether for or against. But we can just not submit a report, meaning to say, the report will be negative. I’m afraid I would have to take a straw vote first among the committee members. A number of them have approached me during the course of the hearings to tell me that they are not convinced. Certainly, I will not go against the express sentiments of the committee members because I will be outvoted in the plenary session anyway. The power of the committee chair is vast, but it is also limited.

We prefer to just not submit a report. We can say that the Senate committee on foreign relations is not submitting a report although it has already concluded its hearings. That is a diplomatic way of saying that we recommend that the treaty be rejected.

In today’s hearing, even an administration official expressed doubts as to whether they should endorse the treaty at all. Senator Roxas has privately expressed skepticism over the treaty, even though he was originally a supporter of the treaty.

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News Release

25 September 2007

MIRIAM: BOW TO SUPREME COURT, HALT SENATE PROBE

Sen. Miriam Defensor Santiago, joining Sen. Joker Arroyo, called for a halt in the Senate probe on the RP-China (ZTE) loan agreement, on the ground of “interdepartmental courtesy” to the Supreme Court.

“The Senate rules allow the inquiry to continue, despite a concurrent Supreme Court case. But it is better to give the Supreme Court enough breathing space, simply out of respect. The probe is adding to the political noise,” she said.

Santiago said that if the Senate blue ribbon and two other committees decide to continue the probe, she would continue to participate, after expressing her personal opinion.

“I have no power to halt the probe, but I will not snub it, because an individual senator generally follows a committee decision,” she said.

Santiago said that suspended loan negotiations must wait for final decision by the Supreme Court, which has already issued a TRO against it.

Santiago also said that if the Supreme Court allows the deal to be concluded, it would be an executive agreement, which does not need Senate concurrence but only Monetary Board approval.

“But the question of the alleged irregularities in its negotiation is a separate issue,” the senator said.

Santiago explained that after the Supreme Court issued a temporary restraining order against ongoing negotiations, President Arroyo “had no option but to suspend the proceedings.”

In a privilege speech yesterday, Santiago said that the Constitution requires Senate concurrence for a “treaty or international agreement,” but the Supreme Court has consistently held that an executive agreement is an exception to this rule.

Santiago said that the loan agreement is an executive agreement, on the following grounds:

1. It is a soft loan and the risks to the nation are not significant.
   
   
2. It is not intended to affect Philippine laws.
   
   
3. It can be implemented without the enactment of subsequent legislation, save for the necessary provision in the national appropriations act.
   
   
4. Past foreign loan agreements have been upheld as valid executive agreement, notably in the 2007 Abaya and Kolonwel cases.
   
   
5. It is a short-term agreement.
   
   
6. The validity of an executive agreement is considered a norm of international law, and more specifically as a principle of international customary law. In international law as in Philippine constitutional law, custom is the best interpreter of the laws. Optimum legum interpres consuetudo.
   
   
7. To require Senate concurrence would compromise the constitutional power of the President as chief diplomatic officer.

Santiago said the deal can only be concluded, if Malacanang follows a five-step process consisting of a Department of Budget and Management (DBM) Forward Obligational Authority, Full Powers to the Department of Finance (DOF), signing by the DOF of the loan agreement, Monetary Board approval, and congressional appropriation in the national budget.

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Transcript of Senator Miriam Defensor Santiago’s interview

21 September 2007

On the China-US turf war in the NBN controversy

We cannot discount the possibility that there is a turf war ongoing between China and America for this contract, because of the three (bidders), one is Filipino, the second is American and the third is Chinese. I just want to know if our government is being manipulated on this matter, that the scandal is being deliberately blown out of proportion by a struggle for regional power. And since we are a small, virtually insignificant country, we are being manipulated by some intelligence agency to take one way with respect to a billion-peso contract. That is my first concern.

On what she would ask in the next ZTE hearing

As much as we (senators) were unable to raise questions because we were limited to three minutes, I wanted to know if the meeting in Wack Wack Golf and Country Club between the First Gentleman and Mr. Joey de Venecia was the first between these two men, because as a former trial judge I find absolutely unnatural that after an introduction and a dialogue of very few minutes immediately one of them points his finger to the other and uses a very harsh warning (of) “Back off!” No person would do that unless they are intimate with each other.

On the ZTE as loan or executive agreement

Under the Constitution, all loans must be approved by the Monetary Board. It immediately follows in that same section in the Constitution, the provision that all treaties and international agreements must be approved by the Senate. So first, we have to determine: Is this is a loan? Then we need Monetary Board approval. Is this a treaty or international agreement? Then it needs Senate concurrence. Everybody calls it a loan, there’s no doubt about it. Both sides characterize it as a soft loan. Unfortunately there is the Procurement Law, that provides that if the government enters an executive agreement, then that transaction is exempted from the usual legal bidding process. That is the justification for why there was no bidding. But if it is an executive agreement, it might fall under the term “treaties and other international agreements” in our Constitution, which requires Senate ratification. I will explain next Monday that executive agreements need Senate ratification as a general rule. The mere fact that you call it an executive agreement does not exempt it from the constitutional requirement. However, there is an accepted exception to that general rule, that if a new treaty or international agreement is merely carrying out the provisions of a prior or mother treaty or international agreement, it does not need Senate concurrence. Malacañang has to justify why this so-called executive agreement is merely an execution or a further amplification of a former prior treaty between China and the Philippines.

On JDV’s involvment

If he has been accurately and correctly quoted by Sec. Mendoza, the language alone is already implicative of criminal liability because he was trying to influence the procurement of a government contract involving public funds. It falls under the specific and express prohibition of the Anti-Graft Practices Act, he is a relative within the third degree of consanguinity of the interested party.

If he was just inviting, there was no violation as yet of criminal law. But the moment he introduces the element of his son, Amsterdam Holdings and the ZTE contract, then there is a clear violation of the law.

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

19 September 2007

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

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

On the First Gentleman being subpoenaed by the Senate:

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

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

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

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Excerpts from Senator Miriam Defensor Santiago’s interview

18 September 2007

It seems to me that this young man’s behavior is contrary to human nature. He lost in the bidding. The normal reaction is to ask for a re-bidding if you really think that the winning bid was not pursuant to the specifications and if you really think that your own bid would have been better for the country. But instead of making a only a cursory denial, or denunciation of the successful bidder, he is raining automatic gunfire on almost everybody in sight. He is trying to annihilate everybody who has a direct connection with President Arroyo. That is why I say that his behavior is bizarre. And you cannot help but reach the conclusion that he is merely a stool pigeon, he is speaking for a political group that is trying to scandalize the administration.

Who is he speaking for? He is always in the media. The level of political noise he is making is extremely high. You and I know that you won’t get this kind of publicity just making allegations without any proof at all. So this must be a very expensive campaign. My question is: who is funding young this man?

If he is a genuine oppositor, if he is bent on exposing corruption in government, he should have presented his evidence long ago. Instead, he is concentrating on making sensational statements. Where are his witnesses? Or where are the papers that at least implicate these figures? He is a loose cannon but he is not as wild as he seems to be. I think he is merely fronting for a group whose ultimate goal is to create political instability so that President Arroyo will be removed before her term officially ends in 2010, and install another. I have some idea who this “other” is, but again, unlike this person I am criticizing, I’m a trained lawyer. I don’t want to name names unless I have at least some semblance of proof.

[This issue] has to be diligently and conscientiously investigated by the Senate Blue Ribbon Committee. We cannot all just jump when someone makes a sensational statement. We have to show the public that a Senate Committee investigation is a serious, solemn discharge of duty. Whenever any person makes an allegation, he must be immediately asked to produce at least prima facie, the barest minimum, evidence, to support his claims. Otherwise, all Senate Committee hearings here will be nothing but sensationalist circus.

I want to ask the person why is it that he has never answered the objections or criticisms of his bid, or the justifications presented for the winning bid. In the first place, his corporation is charged with being a mere shell. There is nothing inside. It had an original capital of some Php 300,000.00 according to the certificate of registration issued at the SEC. It had a paid up capital of some Php 300,000 and an authorized capital of Php 5M. And he is trying to pursue half a billion’s worth of public funds. How on earth could you have possibly justified his qualifications? He doesn’t even try to prove his qualifications. He is on a warpath. He is on a bloodbath. We will have to make that young man answer if he is lying to the committee.

He is accusing high public officials of graft and corruption, a misbehavior punishable under the Anti-graft and Corrupt Practices Act. He is making a criminal accusation against them. That certainly, if not accompanied by a modicum of proof, can be libelous. He enjoys no parliamentary immunity… this young man, I am sure, will be facing libel charges or charges of inciting to sedition.

I’m sure that he will be called again, and I hope that by that time, senators will be bent on placing the onus or burden of proof on the accuser, not on the accused. That is the way our judicial or legal system works.

I have advantage over other senators because I have received background information on him. He is not a mere disgruntled bidder. The mere fact that this is so highly publicized and that the angle has always been “who has been corrupt in the Arroyo administration?” … (means that) a lot of money has been spent.

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News Release

18 September 2007

MIRIAM: WHO’S FUNDING JOEY?

Sen. Miriam Defensor Santiago said that Jose de Venecia III, the accuser in the controversial NBN (National Broadband Network) deal, has to explain what group he is representing, and said she suspects that it is not only his own corporation, AHI (Amsterdam Holdings, Inc.), which lost in the bidding.

“He lost the bid, but he is not even trying for a rebidding. Instead, he is spraying automatic gunfire on the First Gentleman, Atty. Jose Miguel Arroyo, Comelec Commissioner Benjamin Abalos, and DOTC Secretary Leandro Mendoza. This is exceedingly strange,” Santiago said.

Santiago said that she “smells a plot” intended to scandalize President Arroyo, and to create intrigue between her and Jose de Venecia, Jr., Speaker of the House and father of the accuser.

“The political noise has reached a very high decibel level. Producing that kind of noise is very expensive. So where is the money coming from?” she said.

Santiago said that it is possible that the accuser, Joey de Venecia is funded by a group that wants to oust President Arroyo before 2010 and to install someone else.

“The Supreme Court has ruled that he who alleges must prove. We have to conduct a background check on the accuser. Like a good detective story, the Senate hearings should be able to determine what his motive is, and who is funding him, if any,” the senator said.

On the alleged participation in the transaction by the First Gentleman, Santiago said that if it is not satisfactorily explained, it might be difficult to get Senate approval on the 2008 budget on which the Senate is already conducting public hearings.

“That’s got to be the shocker of the month. Someone is telling a very big lie. Which party is peddling the lie will hold the key to Senate approval of the loan,” she said.

Santiago, Senate finance committee vice-chair, said that the NBN project can be completed only with congressional approval through next year’s budget.

“The public officials involved should stop acting as if this were a done deal. It is not, and it is Congress which will have final say,” she said.

Santiago explained that congressional approval is necessary, since the NBN project would create a future debt for the country, which would require payment by the national treasury.
Santiago said that there are five steps that should be taken for the project to be considered completed.

First, the budget department has to issue a FOA, meaning Forward Obligational Authority.

Second, the Office of the President has to issue full powers to the finance department.

Third, the finance department, on behalf of the Philippine government, has to enter into the loan agreement.

Fourth, the Monetary Board has to approve the loan.

Fifth and finally, Congress has to approve the loan through the 2008 budget or the Annual Appropriations Act, in the exercise of the constitutional power to approve the budget prepared by the Office of the President.

Santiago said that her finance subcommittee will conduct a public hearing on the budget for the Office of the President this Friday, September 21, and she will ask the Malacañang representative if the proposed budget includes anticipated payments for the foreign debt that the NBN loan will involve.

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