MIRIAM: DOJ MASS LEAVE ILLEGAL

Sen. Miriam Defensor Santiago, a constitutional law expert, said that it would be illegal for prosecutors to stage a nationwide mass leave, to protest President Arroyo’s order placing on leave of absence those involved in the Alabang Boys drug case.

Santiago was reacting to news reports that prosecutors are considering the option of going on mass leave, to express support for their colleagues whom the President placed on official leave.

At this time, a mass leave is being studied by three prosecutors’ groups: National Prosecutors’ League of the Philippines , Chief Prosecutors Association, and the State Prosecutors’ Association.

Santiago cited the 2007 decision of the Supreme Court in the case of Toyota v. NLRC, which ruled that a strike by government employees is illegal, when it is contrary to a specific prohibition of law.

“It would be illegal for prosecutors to go on strike, because it is prohibited by a 2002 resolution of the Civil Service Commission,” Santiago said.

Santiago referred to CSC Resolution No. 021316 entitled “Omnibus rules on prohibited concerted mass actions in the public sector.”

Section 4 of the CSC resolution provides that “The right to self-organize accorded to government employees . . . shall not carry with it the right to engage in any form of prohibited concerted activity or mass action causing or intending to cause work stoppage or service disruption, albeit of temporary nature.”

The resolution goes on to define the term “prohibited concerted activity or mass action” as: “Any collective activity undertaken by government employees. . . with the intent of effecting work stoppage or service disruption . . . which shall include mass leaves.”

Santiago said that in the 2007 case of Sta. Rosa Union v. Coca-Cola Bottlers, the Supreme Court ruled that even if employees do not use the word “strike,” there is still a prohibited strike when employees go on mass leaves.

Santiago stressed that in the 2006 case of GSIS v. Kapisanan, the Supreme Court ruled that the constitutional rights of free expression and assembly, and the right to petition the government for redress of grievances, do not include the right to strike.

Santiago particularly quoted this passage from the Supreme Court decision: “Any suggestion, however, about these rights as including the right on the part of government personnel to strike ought to be, as it has been thrashed . . . Employees in the public service may not engage in strikes . . . The right of government employees to organize is limited to the formation of unions or associations, without including the right to strike.”

Santiago said that the Constitution protects “the right to strike in accordance with law,” emphasizing the phrase “in accordance with law.”

“Since there are laws that prohibit mass leaves by government employees, any mass leave is illegal, and does not fall under the protection of the Constitution. Any mass leave by prosecutors would fall under the prohibition of the Civil Service Commission which was first laid down in a 1987 by means of Memorandum Circular No. 6,” she said.

Santiago said that CSC Memorandum Circular No. 6 was accompanied by Executive Order No. 180, both issued in 1987.

The senator explained that the prohibition against strikes by government employees is a rule of common law which has been adopted by the Philippine Supreme Court in a long line of cases beginning in 1983.

“The law prohibits strikes in the public sector because they prejudice public services,” she said.

Santiago cited the 1987 case of Bangalisan v. Court of Appeals, which ruled that: “The right of government employees to organize is limited only to the formation of unions or associations, without including the right to strike . . . One wrong cannot be righted by another, and redress, for even the most justifiable cause, should not be sought by proscribed or illegal means.”

Santiago said that the remedies available to prosecutors are: the principle of “exhaustion of administrative remedies,” and a bill in Congress granting authority to, and recognizing the right of, government employees to go on strike.

MIRIAM: CHARTER FORBIDS TRILLANES MOVE

Sen. Miriam Defensor Santiago filed a dissenting opinion to the proposed Senate resolution amending the Senate Rules by allowing detained Sen.. Antonio Trillanes to participate in Senate sessions by teleconference or videoconference.

Santiago , on sick leave, told the media that she expects administration senators to sign her dissent, including senators Joker Arroyo, Richard Gordon, Manuel Lapid, Ramon Revilla, Jr., and Juan Miguel Zubiri.

The Senate Rules can be amended by a motion presented one day before its consideration, by a vote of the majority of the senators present in the session.

Santiago ’s 10 legal grounds are listed in the enclosed dissenting opinion, which shall be circulated among administration senators.

Santiago , although on sick leave, has influenced Senate votes on important issues. Last week, she released an opinion that it might be unconstitutional for the Senate to detain former agriculture secretary Jocelyn Bolante for the fertilizer fund scam, leading the Senate to release him.

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15 December 2008

DISSENTING OPINION

TO PROPOSED RESOLUTION FOR TRILLANES TELECONFERENCE

By Sen. Miriam Defensor Santiago

This is to respectfully dissent from the proposed resolution to amend the Senate Rules to allow electronic participation by detained Sen. Antonio Trillanes in Senate proceedings. The grounds for my dissent are as follows:

1. The resolution might violate the Due Process Clause of the Constitution. It will deny due process to the state, represented by state prosecutors who have charged Trillanes with two counts of coup d’etat: one for the Oakwood incident, and the other for the Peninsula incident. If there is any move to allow Trillanes’ electronic participation, the principle of fair play dictates that there should be notice and hearing to the state prosecutors concerned. The resolution merely represents the view of certain senators, who are airing the side of the accused. The Senate has not heard from the side of the prosecution. Since due process requires notice and hearing to all parties involved, merely passing a resolution would be a denial of due process to the state.

2. The resolution might violate the Equal Protection Clause of the Constitution. It might serve as a bad precedent for other persons in other circumstances to invoke a right to participate by electronic means in collective decision-making. Admittedly, the resolution is not limited to a detention prisoner, but includes those who are hospitalized or ill. However, the effect of the resolution would be to make the Senate a singular institution, distinguished from all collective institutions, because the Senate alone would conduct its plenary sessions by electronic means. This would be deleterious to other important collective agencies, such as the House of Representatives, the Supreme Court, the Court of Appeals, and even the President’s cabinet. Should a constitutional issue be raised on the basis of the Equal Protection Clause, the Supreme Court will be faced with the choice of either striking down the Senate resolution, or the untenable choice of making the privilege available to all members of collective public agencies.

3. The resolution violates the common law principle that: “He who comes to court, should come to court with clean hands,” also known as the “clean hands” principle. Trillanes does not come with clean hands. By means of his two nationally-televised coup attempts, he has demonstrated his contempt for the existing governmental system, and for the rule of law. If he had succeeded, he would have been hailed as a hero. But he failed, and is now a suspected criminal. In effect, he is a political offender, who is defined as a criminal driven by ideology. It appears that the Trillanes ideology is to destroy the present government. Thus, he is now barred from seeking the privileges of the very same government he sought to destroy.

4. Trillanes is seeking a privilege that not even presidents and queens have dared to demand. Heads of state, such as the RP and US presidents, as well as the UK queen, appear personally when they deliver state of the nation addresses to the Congress. They do not do so by teleconference. Admittedly, Trillanes is absent because he is under compulsory detention. But his election as senator does not operate to erase the crimes that he apparently committed in full view of the national TV audience. To allow him teleconference rights would be to reward those who have openly expressed contempt for the social order. In fact, if he wishes to be a hero, he should stand his ground and refuse to accept any and all privileges from the Senate, one of the principal institutions that his coup, if it had been successful, would have destroyed.

5. It is not necessary to amend the Senate Rules, because Senate tradition already allows participation of an absent senator in plenary sessions. This is done when the absent senator requests a present senator to read into the records his debate paper, such as interpellations.

6. It is not beneficial, because from a cost-benefit analysis, the expense is not worth one senator’s participation. The resolution is not based on hard data concerning how much the total cost will be.

7. Absence of a senator does not deprive any particular constituency of representation. A senator is elected nationwide, on his main qualification of competence for policymaking. Thus, it cannot be argued that failure of a senator to participate in Senate proceedings would deprive his constituents of a representative. Unlike a member of the House of Representatives, a senator has no defined constituency to represent. A senator is meant to represent the entire country in helping to make policy decisions.

8. The proposed resolution invokes R.A. No. 8792, or the Electronic Commerce Law of 2000, as well as the SEC circular authorizing board meetings through teleconference. Both citations are unavailing. As its name implies, the law is intended primarily to promote commerce. SEC is a major player in the commerce sector. The law makes no reference at all to legislative proceedings, and is thus irrelevant to the issue.

9. Rule 41, Sec. 117, provides that the vote of an absent senator shall not be counted. This Rule is so old that it derives its legal force not only from its inclusion in the Rules, but also from the fact that it has become a tradition. It would denigrate the voting process in the Senate to allow an absent member to vote by remote means.

10. It would be inconsistent for me personally, to favor teleconference rights for Trillanes, when I have a pending complaint against him with the ethics committee. Under Senate Rule 34, acts which offend a public institution shall be deemed unparliamentary. Further, the intent of my complaint against Trillanes is for the Senate to punish him for disorderly behavior in two coup attempts: one before, and one after, his election as senator. If the Ethics Committee so recommends, the Senate may suspend him for 60 days or even expel him outright. I cannot possibly request the Senate to expel him on the one hand; and to allow him to participate in Senate sessions by remote means, on the other hand. That would be unethical prevarication.

JPEPA FLAWED, BUT OK WITH CHARTER

Sen. Miriam Defensor Santiago, chair of the foreign relations committee and principal sponsor of the Jpepa said that it is “flawed,” but can pass the test of constitutionality.

Santiago made the statement after the Senate concurred in the ratification of the Jpepa at nearly midnight last Wednesday, the last day before Congress takes a one-month break.

During interpellation, Santiago said she had insisted to the executive branch that a supplemental agreement should contain three exemptions from Jpepa, but only one was secured.

The supplemental agreement was made by an exchange of notes between foreign affairs Sec. Alberto Romulo and Japanese foreign minister Masahiko Koumura.

“After months of locking horns, our negotiators were able to get only one of the three exemptions that are necessary to make the Jpepa airtight in protecting Philippine interests. For now, the exemption obtained will enable Jpepa to pass Supreme Court scrutiny,” she said.

Santiago said she sought to limit Jpepa by three proposals, but only one was accepted by Japan.

“ Japan accepted the first proposal, but insisted on using language that should have been left out. We shall have to trust that it will observe these exemptions in good faith,” she said.

The first Santiago proposal was that the Jpepa shall observe all existing Philippine constitutional provisions, laws, and rules and regulations concerning investment activities

The second Santiago condition was that the Jpepa shall observe any future Philippine laws, including those passed by Congress, local governments, and administrative agencies.

“My second proposal was temporarily shelved, with a commitment by Japan that in the near future, it shall accept negotiations to amend Jpepa,” she said.

The third Santiago proposal was that Jpepa shall observe any act of Congress or any Supreme Court decision limiting the President’s delegated power to set tariffs applicable to RP-Japan trade.

“This third proposal was also shelved, with the Japanese commitment that it will be considered during future negotiations for amendment,” she said.

Sen. Francis Pangilinan said that by next year, he would file a resolution requesting the Office of the President to renegotiate Jpepa in order to amend it, by incorporating the three Santiago proposals.

“Unfortunately, we operate in the world as it is, not as it ought to be. Just the first proposal alone exhausted and endangered the health of trade Sec. Peter Favila, who was the lead negotiator,” she said.

But Santiago said she is confident that if questioned in the Supreme Court, the Jpepa will pass the test of constitutionality, because it has been modified by the August exchange of notes between the two governments.

“Under the Vienna Convention on the Law of Treaties, an exchange of notes, if so intended, is in itself a treaty binding on the parties. The Senate resolution of concurrence provides that concurrence is conditioned on the exchange of notes,” she said.

The first exchange of notes was on the Japanese commitment not to export hazardous wastes to the Philippines .

The second exchange of notes was on the observance by Jpepa of all Philippine constitutional provisions that require Philippine citizenship in certain investment activities.

Before the voting, Santiago was grilled on constitutional and legal issues by Sen. Aquilino Pimentel, Sen. Francis Pangilinan, and Sen. Jamby Madrigal.

Undecided senators like Sen. Loren Legarda said that after Santiago answered the interpellation on constitutional and legal issues, they decided to vote for the treaty, because it appears that it now has bright chances of being declared constitutional, if it is brought to the Supreme Court.

Santiago had earlier warned that if the Supreme Court declares Jpepa as unconstitutional, under international law, Japan would have the right to seek damages before an international tribunal.

During interpellation, Santiago paid tribute to the Jpepa opposition, particularly the Magkaisa Junk Jpepa Coalition, whom she said provided “helpful insights” on the treaty.

Santiago said she tried “to do better than my best” during the interpellation in order to obtain the required two-thirds majority vote, before she leaves for the United Nations in New York, where elections for the International Court of Justice to which she has been nominated, will be held on November 6.

While Santiago defended the treaty on the floor, her husband, Sec. Narciso Santiago, Jr., presidential adviser for revenue enhancement, was undergoing surgery for bleeding ulcers at St. Luke’s Medical Center in Quezon City .

To questions from her fellow senators, Santiago said that the surgery was successful, and her husband is expected to be discharged soon.

MIRIAM: BUDGET INSERTS VIOLATE CHARTER

Sen. Miriam Defensor Santiago slammed as unconstitutional the practice of amending the budget by means of secret closed-door sessions of the bicameral conference committee.

Santiago , a constitutional law expert and former UP constitutional law professor, cited the 1994 case of Tolentino v. Secretary of Finance, where the Supreme Court was badly divided on the issue of budgetary insertions.

However, she said that the majority vote does not constitute binding precedent, because the ratio decidendi (or reason for deciding the case) was not about congressional insertions, but about the VAT.

“Chief Justice Reynato Puno, who was then an associate justice, said in his dissent that the bicameral conference committee does not have the power to add or delete provisions in a budget already approved on third reading by both Houses. He said that the bicam does not have an ex post veto power,” Santiago said.

If a case to question the constitutionality of secret budget insertions would be brought today, Santiago predicted that Chief Justice Puno would rule that such secret inserts are unconstitutional.

“In his dissent, the Chief Justice said that there is no constitutional provision, law, rule, or regulation that allows congressional insertions. I respectfully concur with this statement,” she said.

Santiago said that Puno also observed that the secret additions and deletions are not submitted separately for approval in the plenary session. Instead, they are “hidden” in the entire budget.

“Many of my colleagues in Congress claim that congressional insertions constitute a legislative custom. Granting for the sake of argument that it is a legislative custom, still it must follow the hierarchy of sources of legislative rules of procedure,” she said.

Santiago said the principal sources of procedural rules are followed in the following order: Constitution, law, rules, judicial decisions, parliamentary authority, parliamentary law, customs and usages.

Santiago said the best authority on the unconstitutionality of congressional insertions is the dissent by then Justice Hilario Davide, who ruled that the duty of the bicam is limited to the reconciliation of disagreeing provisions.

Santiago also cited the dissent of her former UP law professor, retired Justice Flerida Ruth Romero, who cited the parliamentary authority Jefferson’s Manual, stating that the bicam must confine themselves to the differences in the House and Senate versions.

“The conference committee is transformed into an all-powerful Frankenstein that brooks no challenge to its authority, even from its own members. Their power lies chiefly in the fact that reports of conference committees must be accepted with the amendments or else rejected in toto,” Santiago quoted from the Romero dissent.

Santiago said Romero ruled that congressional insertions transfer the lawmaking power to a small group of members who work out in private a decision that usually prevails.

“Insertion of new matter on the part of the bicam is, therefore, an ultra vires act which makes the same void,” Santiago quoted the Romero decision.

MIRIAM OK WITH LUMAD AUTONOMOUS REGION

Sen. Miriam Defensor Santiago, a constitutional law expert, said that the Constitution allows Congress to pass a law creating a Lumad Autonomous Region.

“In fact, the Constitution not merely allows but orders the creation of autonomous regions in Muslim Mindanao. However, the Constitution does not say that the autonomous regions shall be confined to Muslim areas only,” she said.

Santiago said that a bill embodying the proper organic act has to be filed in Congress, and should first show compliance with the constitutional requirement that the Lumad share “common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics.”

The senator said that a Lumad Autonomous Region is also supported by the constitutional policy that “the State recognizes and promotes the rights of indigenous cultural communities.”

In another development, Santiago said that it is only the Supreme Court which can decide whether to suspend proceedings questioning the constitutionality of the MOA-AD which creates the Bangsamoro Juridical Entity.

“The American experience is not applicable, because the cases were suspended during the civil war, and then during a world war. What we have in Mindanao is merely an insurgency,” she said.

Santiago said that the petitioners should respect President Arroyo’s statement that the government would renegotiate the MOA-AD with the MILF, thus rendering the petition moot.

“While the power to determine foreign policy is shared by the President and the Congress, it is only the President who speaks on behalf of the entire country in foreign affairs. It would be unwise to preempt her,” she said.

Santiago also stressed that greater autonomy for the Bangsamoro, even under a federal system, would not give them the right to secede from the Philippines .

“The Constitution explicitly provides that autonomous regions shall operate within the framework of the Constitution, national sovereignty, and territorial integrity,” she said.

Santiago said that it was “ill-advised” for the GRP panel to agree to the term “Memorandum of Agreement” or MOA.

“The GRP Panel should have insisted on the term ‘Memorandum of Understanding,’ or MOU. On the one hand, an MOA normally indicates an intent to be bound. On the other hand, an MOU is normally a set of unilateral interpretations of a treaty under negotiation,” the senator said.

Santiago said that if the Supreme Court proceeds to rule on the constitutionality of the MOA-AD, it will consider two factors: the content of the MOA; and the evidence of the intent of its makers.

“In reporting on the development of autonomous regions, we should avoid using the international law term ‘self-determination.’ It refers merely to decolonization. Instead, we should use the constitutional law term ‘autonomous region.’ It refers to the territorial integrity of our country,” she said.

MIRIAM SLAMS “TIMID” COMELEC

Senator Miriam Defensor Santiago said she will appeal by certiorari to the Supreme Court the Commission on Elections’ (Comelec) resolution refusing to ban campaign billboards by presidential wannabes.

“The Comelec resolution is timid, literal, and non-responsive,” Santiago said.

Santiago criticized the Comelec for its descriptive rather than analytical style of interpreting the law, calling it a glaring deficiency.

“In this sense, it is not only old-fashioned, but also calcified,” she said.

The senator accused the Comelec of abdicating its constitutional responsibility because it did not recommend to Congress effective measures to prevent election malpractices as required by the Constitution.

“The Comelec says a premature campaign is ignoble. But in effect, they don’t want to offend anybody, so they’ll just pass the buck to the Supreme Court,” the senator said.

Santiago also criticized the Comelec’s “muddled thinking” when the Commission agreed that the issue involves two conflicting provisions of the Election Code on the one hand, while claiming that the law is allegedly clear on the other.

According to Santiago , the rules of statutory construction exist so that a primary agency like the Comelec can interpret the law without throwing everything to the Supreme Court.

“That is the primary-jurisdiction doctrine. They blithely ignored it. And what happened to my equal-protection argument? They were fainthearted, so they ignored it, too,” she said.

Santiago said that she was very sad and disturbed by the Comelec’s refusal to administer and enforce the law. “Their smug attitude just makes me feel tired. I get depressed with this kind of self-righteous passive resistance to reform in our country,” the senator said.

Santiago’s appeal will be handled by her law office since the senator will be busy until November with her campaign for a seat in the International Court of Justice.

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Transcript Of Senator Miriam Defensor Santiago ’s Interview

On The House Bill Providing For Snap Election

That is unconstitutional. The term of the president is six years unless he or she is impeached. Impeachment is the sole process by which you can remove an elected president during his or her term of office.

If you wish to remove the president during her term of office on another ground, you will be adding to the grounds provided by the constitution; therefore, you are either committing an unconstitutional act by passing that kind of law and surely that will be declared unconstitutional by the Supreme Court. Or, you first have to campaign to convert the Congress into a constituent assembly so that it can amend the constitution. But in the form of a law, you cannot change the constitutional provision on removal of a sitting president.

Transcript of Senator Miriam Defensor Santiago ’s interview

On the proposal to restore the death penalty

As a former RTC judge of Quezon City , I oppose the move to restore the death penalty. When I was RTC judge and handling cases punishable by death, during the course of the trial I noticed that when the accused was threatened with the death penalty, there was no obvious terror or deterrent effect on the face of the accused. Apparently, criminals who go to the extent of murdering people are not deterred by the death penalty. This is not to underestimate the heinousness of the crime, but there are remedies.

The abolition of the death penalty was a matter of criminal law philosophy that it is better to rehabilitate the accused than to kill him outright. Number two, we will be going against the global mainstream if we restore the death penalty because it has been condemned, meaning to say that it has been vigorously sought to be abolished not only by the churches, but also by the United Nations and the European Union. So that would be a step backward.

Normally, the arguments in favor of the death penalty are that the penalty should be commensurate to the crime. However, the problem there is not whether by taking their lives we would restore the lives of those they took. The answer of course is no, those lives have been lost. If we punish with the approach of an eye for an eye, a death for a death, then we are starting a vicious cycle.

Plus, in this case, we would be violating the right to life, which already has been constitutionalized in our country. You will say “What about the right to life of their victims?” You will be correct. However, the question here is what is the best penalty for society as a whole. It may be that the families themselves may not even wish for the death penalty, they’ll simply wish for appropriate punishment. Sometimes, considering the miserable conditions of our jails, life imprisonment can be more proportionate as punishment than death itself.

Today we are very moved, and we sympathize and understand the grief of the families of the victims. But suppose after a month unearths documents to show that people who have been meted out the death penalty were innocent of the crime. Do we again agitate for the abolition of the death penalty? So, in other words, our attitude should not reflect what is happening in society, instead reflect a calmer, more objective view of the issue.

Death is not the answer to death. The answer to death is life. You can never tell which one of the rehabilitated and become a useful member of society. This does not mean that everybody is free to commit murder. In fact, the solution there is to make sure that for the families of the aggrieved that police and NBI enforcement should be stepped up because justice delayed is justice denied. The faster we identify the perpetrators, and the faster that the court sends them to jail, then, maybe, the better we can reduce the degree of grief of their families.

I don’t think that it would be a proper reflection on the sobriety and scholarship of the Senate if we pass a bill just about in the prior congress, and then backtrack. We cannot change our minds every two years. It would not say very much about our consistency or our grasp of the issues involved.

MIRIAM: RIGHT TO REPLY RAISES CHARTER ISSUES

Sen. Miriam Defensor Santiago, a constitutional law expert, warned in the Senate plenary debate yesterday that the bill giving the right of reply to any person attacked or criticized by media, raises certain constitutional issues.

“The first constitutional issue is the chilling effect on the right of free expression. The right of reply might in effect result in prior restraint on free expression, if it succeeds in causing media to refrain from using any material adverse to any public official or personality,” she said.

Santiago cited the 2001 case of Social Weather Stations v. Comelec, where the Supreme Court ruled that there is no right of reply to survey results released before election day.

The senator also cited the 1998 case of Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec, which in turn cited an American case which ruled that while there might be a right to reply in broadcast media, there is no right of reply in print media.

Santiago also said that the present wording of the bill gives the right of reply to any “accusation” or “criticism,” which are very broad terms.

“In effect, this is a penal statute and the Supreme Court might declare it unconstitutional on the basis of the void for vagueness doctrine, which requires punishable acts to be specified in detail,” she said.

Santiago also said that Philippine cases have adopted the rule in the landmark American case of New York Times v. Sullivan, that “public officials should not be onion-skinned.”

However, Santiago also noted that freedom of the press has sometimes been abused by corrupt journalists, particularly in cases where they are bribed by certain corrupt public relations firms to publish completely false rumors or insinuations against rivals of the PR clients.

“At the same time, we cannot ignore instances where phony news or feature stories in the front page are used to destroy the credibility of a public official, whose arguments on a public issue are so persuasive that they can only be demolished by character assassination. It has certainly happened to me, but I think the public has wised up to this form of corrupt journalism,” she said.

Santiago proposed that the committee should refer the bill to a technical working group of constitutional experts, and said she would support the bill if the unconstitutional provisions are amended.

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25 March 2008

MIRIAM: CHARTER BANS ARCHIPELAGIC STATE

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, warned that the Constitution has already defined the national territory, and any attempt to declare the Philippines as an archipelagic state under the UN Convention on the Law of the Sea (UNCLOS) would require charter change, because it would reduce the national territory.

“The Constitution states that the national territory comprises the Philippine archipelago, and all other territories over which the Philippines has sovereignty or jurisdiction. The Constitution does not describe the Philippines as an archipelagic state, which is a term of art used by the UN Convention,” she said.

The senator said that if the Philippines declares itself an archipelagic state, the declaration would contradict the Treaty of Paris which sets out the boundaries of our national territory, which are wider than those allowed by the UNCLOS.

Under the 1898 Treaty of Paris, Spain ceded the Philippines to the United States, and now serves as the basis for the present Philippine Baseline Law embodied in R.A. No. 3046, together with R.A. No. 5446.

“The Treaty of Paris sets out the International Treaty Baselines of the Philippine territorial sea. By contrast, the bills pending in Congress will eliminate such limits and thus, the Philippines would lose its boundaries,” she said.

Santiago cautioned against declaring the Philippines as an archipelagic state, because under the UNCLOS, the Philippines would be entitled to only 12 nautical miles of the territorial sea which, she said, is “an almost colossal reduction from the wider boundaries of the International Treaty Limits under the Treaty of Paris.”

“If the Philippines declares itself an archipelagic state, our zone of sovereignty would collapse. Our internal waters would become archipelagic waters where the ships of all states will enjoy the right of innocent passage. In addition, foreign states would have the right of so-called archipelagic sea lane passage. Ships of all states would have the right of passage and their aircraft would have the right of over flight,” the senator said.

Santiago also warned that if the Philippines declares itself an archipelagic state, it would adversely affect the environment, because of marine pollution from ships in the archipelagic waters. The result would be that the Philippines as an archipelagic state would have less enforcement jurisdiction over foreign vessels in matters of pollution, than a non-archipelagic state in its territorial sea.

Santiago said that the question of ownership over the Kalayaan island group, sometimes called the Spratly, is related to the issue of archipelagic base lines.

“If the Philippines declares itself an archipelagic state, then we need scientists to determine if, under international law, Kalayaan by itself constitutes another archipelago. Under UNCLOS, an archipelagic state can be composed of two archipelagos. If not, under international law, Kalayaan could be characterized as ‘other islands’ over which the Philippines is entitled to claim sovereignty,” she said.

Santiago said that the present bills seeking to extend the archipelagic baselines so as to include Scarborough Shoal are not advisable, because it would revise the Treaty of Paris.

“International law does not recognize the drawing of archipelagic baselines as a method of claiming territorial sovereignty,” she said.

Instead, Santiago proposed that the Philippines should claim sovereignty over Scarborough Shoal through the method of effective occupation under international law.

“The Philippines has already exercised many political and administrative acts of a sovereign nature over Scarborough Shoal. Such acts include military exercises, establishment of lighthouse, enforcement of laws against foreign vessels and nationals, which are evidenced by historical data,” the senator said.

Santiago also warned against the wording of the pending bills concerning Sabah.

“In 2001, with Dean Merlin Magallona arguing for the Philippines, the International Court of Justice relied on Philippine law, particularly Republic Act No. 5446, Section 2, which provides that the Philippines has acquired dominion and sovereignty over Sabah, North Borneo and hence, the baselines of the territorial sea include baselines of the territorial sea around Sabah. If the pending bills abolish Sec. 2, the effect is to remove from Philippine law the affirmation of sovereignty over Sabah,” she said.

Santiago was referring to the Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan between Malaysia and Indonesia, where the ICJ ruled that the Philippines will not in any way be affected by its decision on the merits I the case between Malaysia and Indonesia.

Santiago said that under a resolution that she filed, no less than a congressional commission on national territory should be established because the present bills “do not fully appreciate the magnitude and depth of the country’s territorial problems. In fact, the present bills carry the risk of exacerbating the contradictions internal to the territorial regime.”

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9 March 2008

SENATE SETS APRIL SPRATLY PROBE, JPEPA VOTE

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, said that the public hearing on the controversial 2005 Spratly Islands agreement, as well as the Jpepa committee report, will be taken up on April 28, when Congress resumes session after the Holy Week break.

“Following Senate practice, the Spratly Islands investigation will probably be assigned to two committees: foreign relations committee for the constitutional and legal aspects, and blue ribbon committee for the criminal aspect,” she said.

Santiago said that the 2005 tripartite Joint Marine Seismic Understanding (JMSU) among the Philippines, China, and Vietnam, raises the issue of whether it violates the constitutional provision on Philippine sovereignty or jurisdiction over defined national territory.

“A mere scientific or technical cooperation agreement, which does not diminish or threaten Philippine sovereignty or jurisdiction, is constitutional,” she said.

The JMSU will collect data and information on the potential oil and gas reserves in the area, planned to last for three years, at US$15 million.

Santiago said that former Sen. Franklin Drilon, when he was justice secretary, issued a 1990 opinion stating it was “legally feasible” for the Philippines and Australia to conduct a similar Offshore Seismic Project.

She quoted Drilon, who ruled: “the project proposal which involves data-gathering, processing, and interpretation techniques envisioned pre-exploration activities which are not covered by constitutional limitations.”

“Drilon in 1990 said that a seismic project with Australia was legally feasible. Now Drilon in 2008 is saying that a similar seismic project with China could be a legal basis for impeaching President Arroyo. He will have to explain his mental calisthenics before the committee,” she said.

Santiago said that in his 1990 opinion, Drilon stated that after completion of the seismic project, “the President may enter into a service contract with a wholly-owned Australian corporation for large-scale exploration, development, and utilization of petroleum resources in accordance with P.D. No. 87, and other pertinent laws.”

“In 1990, Drilon approved not only the seismic project, but even a service contract with a foreign country for the use of petroleum resources. By contrast, in 2008, Drilon implies that a similar seismic project, without a service contract is already illegal and exposes the President to impeachment. This is a flip-flop that shows intellectual inconsistency,” she said.

Santiago cited the 1992 ASEAN Declaration on the South China Sea issued in Manila, where ASEAN foreign ministers resolved, “without prejudicing the sovereignty and jurisdiction of countries having direct interests in the area, to explore the possibility of cooperation in the South China Sea relating to the safety of maritime navigation and communication, protection against pollution in the marine environment . . .”

Santiago said the 1992 Declaration was followed by the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea, which she said “is merely a political declaration, without binding legal force, seeking to turn a sea of disputes into a sea of cooperation, pursuant to the policy of the late Chinese leader Deng Xiao Ping.”

Deng advocated the principle of “putting aside the disputes and jointly exploiting,” the area of the South China Sea.

“There is a curious question of timing. Since the pact was signed three years ago, why is it only now that it is being assailed as alleged presidential misconduct? What is the basis for the charge by a foreign writer that it is an alleged sellout?” she said.

Santiago warned that RP-China relations should not be dragged into the political fray, noting that China has extended preferential loans to the Philippines for various development programs, and is now the main financial provider for Southeast Asia, ahead of the World Bank, the Asian Development Bank, and aid programs from the US and Japan.

“The anti-Arroyo campaign should not be turned into an anti-China campaign. We should consign power plays to the domestic arena. International relations and diplomacy are too important to our national interest to be used as partisan political ploys. It takes decades to build up good interstate relations,” she said.

In another development, Santiago said that when Congress resumes on April 28, she will release a Full Committee Report recommending conditional concurrence with Jpepa.

“Ordinarily, a committee report is only two pages, bearing the signatures of committee members. But this time my committee report will be so extensive that it will be a bound volume. Jpepa is an extraordinary treaty, raising significant issues of constitutional and international law,” she said.

Santiago said that Jpepa committee report will comprise at least four documents: the standard format with the signatures of nearly all 23 senators who are members of the two committees; the draft Senate resolution setting out the conditions for concurrence; the report on the constitutional and legal issues filed by herself as chair of the foreign relations committee; and the report on the trade and industry issues to be filed by Sen. Mar Roxas as chair of the trade and commerce committee.

The senator said she finished Jpepa hearings in November last year, but Sen. Edgardo Angara requested additional hearings that took another month.

“In January, the Senate could not take up Jpepa, because the budget always takes priority. In February, it was overtaken by the NBN probe. This March, there is an extended Congress break. That is why April, when session resumes, is the earliest date available,” she said.

Santiago said she hopes Japan will accept the conditions, without resubmitting the Jpepa to the Japanese Diet or parliament.

“The constitutional issues are paramount. Hence, the Senate should ensure that the Supreme Court will not declare Jpepa unconstitutional. If we do not take scrupulous care in the Senate and the court declares it unconstitutional, such declaration of unconstitutionality will not be a valid defense, if Japan later sues the Philippines for nonperformance of contract obligation. This is a provision of the Vienna Convention on the Law of Treaties,” the senator said.

Santiago will be abroad until November this year, to campaign for the post of judge of the International Court of Justice where, if elected by the United Nations, she will be the only female among 15 judges elected worldwide on the basis of the highest qualifications in international law.
But Santiago said she plans to be in Manila when session resumes in April, so that she can deliver her Jpepa sponsorship speech and defend it, as well as preside over the Spratly Islands hearing, before resuming her hectic campaign schedule abroad.

- End -

16 January 2008

MIRIAM SEEKS JPEPA CONDITIONAL CONCURRENCE

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, said she is drafting a resolution of conditional concurrence which she hopes to present to her committee and then to sponsor on the Senate floor when session reopens on January 28.

“The process of Senate concurrence will be twofold, consisting of an exchange of notes between the two governments, and passage by the Senate of a resolution expressing conditional concurrence,” Santiago said.

Santiago said the target date for the entire process is “before March” in order to finish Jpepa before session adjourns on 29 March 2008.

“The exchange of notes will contain the shared understanding of both governments that Jpepa is consistent with their respective constitutions. Specifically, this refers to the Jpepa provisions to accord national treatment and most favored nation (MFN) treatment to, and to refrain from imposing performance requirements, on Jpepa investors,” she said.

Santiago said that constitutional issues in the Philippines are represented by Jpepa provisions on investment in Chapter 8, as well as the Schedule of the Republic of the Philippines in Parts 1 and 2 of Annex 7, giving national treatment and MFN treatment to Japanese investors.

“The Senate concurrence resolution will contain the condition that implementation under Jpepa of national treatment and MFN treatment does not impose any obligation on our country that would be inconsistent with the mandatory provisions of our Constitution,” Santiago said.

Santiago also said that the Senate resolution will also contain the condition that Jpepa will not violate the Philippine Constitution relating to the rights of any person to acquire or dispose of immovable property, public or private.

“The Japanese ambassador has graciously accepted this concept in principle. Our government has explained that the conditions of concurrence serve only to confirm the interpretation of Jpepa, and that the Senate resolution will not modify the obligations of the parties. Thus, there will be no need to return the treaty to the Japanese Diet, which is Japan ’s main concern,” Santiago said.

The senator said that while the exchange of notes will be brief, the Senate resolution will be much longer, because it will list certain reservations and exceptions, many constitutional provisions, and provisions on customs duties.

“It is important that the Senate concurrence resolution should clarify that any Japanese investment in our country should be made in accordance with the requirement of Philippine laws,” the senator said.

Santiago said that the concurrence resolution will explicitly contain provisions for additional funding of safety nets and other remedial administrative measures.

The senator said that the concurrence resolution should not be rushed because it has to observe the following constitutional provisions: right to health of the people, protection against unfair foreign competition, ownership of all lands of the public domain, utilization of all natural resources, lease and ownership of alienable public lands, ownership and transfer of private lands, reservation of certain areas of investments to Philippine citizens and corporations, preference to qualified Filipinos in the grant of rights covering the national economy and patrimony, regulation of foreign investments, operation of public utilities, preferential use of Filipino labor and domestic materials, practice of professions, ownership and control of additional institutions, transfer of technology, ownership of mass media, and ownership of corporations in the advertising industry.

-o0o-

FOURTEENTH CONGRESS OF THE REPUBLIC )
OF THE PHILIPPINES )
First Regular Session )

SENATE

P.S.R. No. 228


Introduced by Senator Miriam Defensor Santiago


URGENT RESOLUTION
EXPRESSING THE SENSE OF THE SENATE THAT IT IS AN UNPARLIAMENTARY ACT FOR A SENATOR TO LEAD AN ATTEMPTED COUP D’ETAT AGAINST THE GOVERNMENT,
AND CALLING FOR HIS PROPER PUNISHMENT

WHEREAS, on 29 November 2007, Senator Antonio Trillanes IV, who is detained and under trial on a charge of coup d’etat, walked out of a Makati courtroom and stormed into a hotel where he participated in the reading of a prepared seditious statement calling not only for the President to resign, but also for the public, in effect, to compel her to leave office;

WHEREAS, the Rules of the Senate, Rule 34, Section 97, provides:

SEC. 97. Upon the recommendation of the Committee on Ethics and Privileges, the Senate may punish any Member for disorderly behavior and, with the concurrence of two-thirds (2/3) of the entire membership, suspend or expel a Member. A penalty of suspension shall not exceed sixty (60) calendar days.

WHEREAS, the Constitution, Article II, Section 3, provides:

SEC. 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State.

WHEREAS, this provision means that the President, as commander-in-chief, is supreme not only over the military, but also over its rogue elements. Furthermore, the provision that the AFP is the protector of the people is not meant to authorize any of the rogue military to stage a coup d’etat, but is intended to emphasize the defense of the country from foreign attack;

WHEREFORE, BE IT RESOLVED, that the Senate Committee on Ethics and Privileges, should meet immediately and recommend the proper punishment for Senator Trillanes for disorderly behavior and unparliamentary acts and language, including if necessary, his suspension or expulsion from the Senate.

Adopted,


                                                                                                                         (Sgd.)

MIRIAM DEFENSOR SANTIAGO

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.

News Release

12 November 2007

MIRIAM: JPEPA NEEDS SUPPLEMENTAL AGREEMENT

Sen. Miriam Defensor Santiago, chair of the Senate committee on foreign relations, on reporting to the Senate after arriving from New York, said that in her preliminary opinion, JPEPA needs to be accompanied by a Supplemental Agreement, because the treaty in its present form fails to make a reservation for future preferential, protective, or development measures over Japanese investments.

“If the treaty in its present form is questioned in the Supreme Court, the case will be a no-brainer. But prudence dictates that we should wait until the last public hearing,” she said.

Santiago, a constitutional law expert, warned “shallow legal kibitzers” to refrain from misleading President Arroyo, because the senator said ultimately the treaty will be taken to the Supreme Court, and it is the duty of the Senate administration allies to protect the integrity of both the President and the Senate in the treaty-making process.

“My preliminary preference is to propose a Supplemental Agreement to the executive branch, and subsequently to sponsor on the floor both the JPEPA and the Supplementary Agreement,” she said.

The senator said she will advise President Arroyo to follow US common practice, and to appoint senators to negotiating delegations, so that the senators will contribute their sense of what the Senate will accept, thus deterring and disarming Senate opposition.

“The reservation in JPEPA is very narrow, and contrasts with comprehensive reservations made by Malaysia, Thailand, and Indonesia in their EPAs with Japan, and even by Japan in its reservation in JPEPA,” Santiago said.

Santiago pointed to specific constitutional provisions that require the State to intervene, when necessary to protect the Philippine economy, with future performance requirements, such as transfer of technology and nationality in hiring policies.

“In its present text, the negotiating team failed to provide for flexibility in imposing or adjusting for preferential measures, and also failed to provide for nationality in hiring policies,” she said.
Santiago, a former UP constitutional law professor, said that during the public hearing, government resource persons “failed to grasp the crucial difference between Annex 6 on trade and services, and Annex 7 on investments.”

“JPEPA negotiators and their defenders made the fatal mistake of differentiating the rules on trade and services, from the rules on investment negotiation. In fact, under Article 88, the definition of ‘investments’ is so exhaustive that in effect Article 88 defeats Annex 6 on services,” she said.

Santiago said that while she was in New York with foreign affairs secretary Alberto Romulo and Ambassador Hilario Davide, to pursue her national candidature for the International Court of Justice, she kept track of the additional JPEPA hearing conducted in her absence, and found no substantial reason to change her preliminary opinion of the treaty.

“The Senate opposition will not ratify JPEPA, because it will become the first treaty under which the Philippines promises never to impose nationality hiring requirements, or technology transfer requirements, on any foreign investment,” she said.

Santiago said that she will be leaving for a campaign in three ASEAN capitals on November 25 to December 5, but she expects to circulate a committee report before the Senate goes on Christmas break.

-o0o-

Transcript of Senator Miriam Defensor Santiago’s interview after the fifth hearing on the JPEPA

8 October 2007

As a constitutional law student, I am personally godsmacked by what the imminent constitutional law expert have said. They were very strong in their view that the JPEPA is unconstitutional.

I have already emphasized that the constitutional issue is a threshold question because in a hypothetical case, even if the committee reports the treaty favorably to the plenary session in the Senate; and the Senate, by a minor miracle, approves it, the opposition, who is very emotional and committed to their cause, will certainly bring a case to the Supreme Court. If the Supreme Court decides that the JPEPA is unconstitutional, it will become unnecessary to discuss all other points. That is the most fundamental priority of all these hearings: is it constitutional or not. That is why I deliberately left the issue of constitutionality for last because it is a very technical issue and will be very difficult for the public to understand.

Among our experts is the preeminent legal scholar of this country and actually the most famous
international law expert for Asia, and therefore in the world, Mr. Florentino Feliciano. His paper
consisting of seventeen pages is categorical. He is citing chapter and verse the Constitution, not just one but several. In my personal view, when Justice Feliciano says something, that is no longer debatable. Even the administration spokesperson on this particular issue conceded that Justice Feliciano’s opinion is simply in the level of the supernatural—when he says something, there is almost nothing that you can say against it.

The same is true for the other expert in international law, former Dean of the UP College of Law and Oxford graduate Dean Merlin Magallona. Virtually, if we go by the objective analysis of these independent experts, the JPEPA is dead. JPEPA is unconstitutional in several constitutional grounds, and then they went on to explain which ones of these provisions are, and why they adversely impact the validity of the JPEPA.

But as I’ve said, we are not finished, in fact there will be an additional hearing to be presided by either Senator Roxas or Senator Angara. I have to keep an open mind until after that last hearing and until after all the parties directed should have submitted their written memoranda by October 23. But as a lawyer, for me the preeminent question is constitutionality. Once you have a valid and substantial constitutional question, then there is no point in discussing the JPEPA. It is the ultimate first priority. Since our objective experts who were testifying or having their papers read were categorical in their findings.

The power of the Senate is confined merely to ratification or rejection. We cannot possibly amend the treaty. What we can do is send back the treaty to the executive branch for renegotiation for amendment, addition, or exclusion as we shall see fit in the Senate floor. But of course, they will take my recommendation as chair of the committee into full significance.

If that is the case, I will first have to get a majority vote of my own committee. But notice there
were three administration senators present, but we were unanimous at least in this hearing that there is no question that JPEPA is unconstitutional.

But as I’ve said, I will struggle very hard against my own instincts to try and keep an open mind, because after all, there will be one more hearing, and then I still have to wait for the memoranda from all parties.

On the JPEPA provisions claimed by experts to be unconstitutional

The Philippine Constitution is one of the few in the world that has a nationality provision. In other words, we consider that, as a matter of Filipino nationalism, certain areas of business, trade and industry should be reserved only for Filipino citizens or corporations that has at least a majority or controlling share is owned by Filipinos. According to these experts, the JPEPA, if implemented, will violate these nationality provisions. Under the treaty, only Japanese entities may invest in the Philippines. However, there is a practice in international trade law where, to get around that requirement, they can form a corporation which would be the “grandfather,” and that corporation can form another one, and so on, until it reaches a point where the registered Japanese corporation is no longer controlled by the Japanese but might be controlled by Americans, Europeans or whoever. There is actually a backchannel or loophole in that provision, that is why it might be unconstitutional on that ground.

In the 1993 Oposa v. Factoran, the Supreme Court said that all activities on the part of the government must apply to the constitutional provision of protection of the environment on a balanced ecology. And so, it is likely that that provision will be applied as well, and that would be the second ground for unconstitutionality. That is the problem: it is not only one ground, but several. If you don’t get it declared in one ground or one provision, there are still other provisions you have to contend with.

That is why I am very worried about the fate of JPEPA even on committee level only. But in plenary level, we are already disadvantaged because the numerical majority belongs to the opposition, and this series of hearings provided the opposition senators with very strong ammunition. I for one confess that I will not be able to defend the constitutionality of the JPEPA
on the Senate floor.

-o0o-

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.

-o0o-

Press Release

26 July 2007

Miriam Votes "No" on Trillanes Resolution

Administration Sen. Miriam Defensor Santiago voted against the Trillanes resolution, alleging that it violates the constitutional doctrine of separation of powers, the constitutional doctrine of the independence of the judiciary, and the Equal Protection Clause of the Constitution.

“This resolution is unnecessary, because the judiciary knows the Rules of Court better than the Senate. It is not beneficial, because it will not influence the judiciary, but may even incur its displeasure. And it is not practical, because the Senate has no army with which to enforce it,” said Santiago, a constitutional law expert, in her speech explaining her vote.

Santiago said that since the Senate is part of the legislative branch of government, the Senate should confine itself to matters that could properly be the subject of lawmaking.

“The question of the detention of a person accused of a nonbailable crime is judicial, not legislative, in nature,” she said.

In her speech, Santiago said that the practice of using the sense of the Senate resolution began in the US Congress where it is used to express Senate opinions on national policy issues only.

“A sense of the Senate resolution is usually used only to express opinions on foreign policy issues. Sometimes it is used in domestic policy issues. But it is never used in judicial issues,” she said.

Santiago said that even the Senate sometimes is in danger of contempt if it expresses an opinion on a case pending in court.

Santiago cited the 1987 decision of the Supreme Court in Nestle v. Sanchez where the Court prohibited any “attempt to pressure the Court into acting one way or the other in any case pending before it.”

“Grievances, if any, must be ventilated through the proper channels, i.e., through appropriate petitions, motions, or other pleadings,” Santiago quoted from the decision.

Santiago also said that under the Equal Protection Clause of the Constitution, the court should treat Sen. Trillanes in the same way that it treated Rep. Jalosjos in the 2000 case of People v. Jalosjos.

“Under the doctrine of stare decisis, the court will stand by precedent and will not disturb a settled point,” Santiago said.

Santiago quoted the Jalosjos ruling stating that an elective official should not receive different treatment as other prisoners validly confined under the law.

“Congress continues to function well in the physical absence of one or a few of its members,” Santiago quoted from the Supreme Court.

-o0o-

Senator Santiago's speech explaining her "No" vote on the Trillanes Resolution.

I VOTE “NO” ON THE TRILLANES RESOLUTION

By Senator Miriam Defensor Santiago
25 July 2007

I vote “No” on the Trillanes resolution, on the following grounds:

1. It violates the constitutional doctrine of separation of powers.
   
2. It violates the constitutional doctrine of the independence of the judiciary.
   
3. It violates the Equal Protection Clause of the Constitution.

FIRST GROUND.
THIS RESOLUTION VIOLATES THE CONSTITUTIONAL DOCTRINE OF SEPARATION OF POWERS.

Our Constitution does not contain an express provision for the separation of powers. But some constitutional law scholars describe the doctrine of separation of powers as “probably the most important principle of government declaring and guaranteeing the liberties of the people.” We imply this doctrine from Articles 6, 7, and 8, which create separate legislative, executive, and judicial departments. Because we merely draw it by implication from these articles, we cannot define the doctrine precisely.

But it is obvious that since the Senate is part of the legislative branch of government, it should confine itself to matters that could properly be the subject of lawmaking. The question of the detention of a person accused of a crime is judicial, not legislative, in nature. To use a sense of the Senate resolution to deal with a case pending in court would be a misuse of the sense of the Senate tradition.

This tradition that we copied from the United States Congress allows that one or both houses of the Congress may formally express opinions about subjects of current national interest through freestanding simple or concurrent resolutions (called generically “sense of the House,” “sense of the Senate,” or “sense of Congress” resolutions). These opinions may also be added to pending legislative measures by amendments expressing the views of one or both chambers.

Sense of the House or Senate resolutions take the form of simple resolutions because they only require the approval of one chamber. “Sense of” resolutions are considered under the normal legislative processes of each chamber applicable to any other legislative vehicle. Because “sense of” resolutions do not involve the expenditure of public funds, such resolutions when reported from House committees are placed on the House calendar. Typically, the House considers them through suspension motions, unanimous consent requests, or by special rules. The Senate normally takes up “sense of” resolutions through unanimous consent requests or, more infrequently, they are automatically laid before the Senate under the “resolutions, over, under the Rule” process (Senate Rule XIV of the U.S. Senate).

A “sense of” resolution is not legally binding because it is not presented to the President for her signature. Even if a “sense of” provision is incorporated into a bill that becomes a law, such provisions merely express the opinion of Congress or the relevant chamber. They have no formal effect on public policy.

A sense of the Senate resolution is non-binding legislation that simply offers the opinion of the body but does not make law. Although often purely symbolic in nature, such resolution can also indicate which way the Senate is likely to head on other legislation.

Sense of resolutions and amendments expressing the sense of one or both houses of Congress have covered many issues. A survey of “sense of” resolutions and amendments offered during the 105th Congress of the U.S. shows that most of them focused on foreign policy matters, particularly resolutions that express the sense of the Senate. However “sense of” proposals have also addressed domestic policy issues, such as calling for certain federal agencies or officials to take specified action or to refrain from some action.

When members of the House, Senate or entire Congress want to "send a message," or state an opinion, they try to pass a "sense of" resolution. Since such resolutions do not create law, what good are they?

Simple or joint resolutions expressing the "sense of" the Senate, House or Congress merely express a majority opinion. They do not make law and are not enforceable. Only bills and joint resolutions create laws.

"Sense of" legislation can come in the form of Simple Resolutions (H.Res. or S.Res.), used to express the opinion of the House or Senate alone, or as Concurrent Resolutions (H.Con.Res. or S.Con.Res.) used to express the opinion of the entire Congress. "Sense of" resolutions can also be added as amendments to regular House or Senate bills. Even when added to regular bills, "sense of" amendments have no force of law.

"Sense of" resolutions are typically used as:

• For the record: a way for individual members of Congress to go on the record as supporting or opposing a particular policy or concept;
  
• Political persuasion: a simple attempt by a group of members to persuade other members to support their cause or opinion;
  
• Appeal to the president: an attempt to get the president to take or not take some specific action (such as S.Con.Res. 2, considered by Congress in January 2007, condemning President Bush's order sending over 20,000 additional U.S. troops into the war in Iraq.),
  
• On foreign affairs: a way to express the opinion of the people of the United States to the government of a foreign nation; and
  
• Just saying "thanks": a way to send the congratulations or gratitude of Congress to individual citizens or groups. For example, congratulating U.S. Olympic champions or thanking military troops for their sacrifice.

"Sense of" resolutions require only a simple majority vote to pass and, since they do not create laws, do not require the signature of the president.

Although "sense of" resolutions have no force in law, foreign governments pay close attention to them as evidence of shifts in U.S. foreign policy priorities.

Finally, no matter how momentous or threatening the language used in "sense of" resolutions may be, remember that they are merely a political tactic and create no laws, whatsoever.

SECOND GROUND.
THIS RESOLUTION VIOLATES THE CONSTITUTIONAL
DOCTRINE OF THE INDEPENDENCE OF THE JUDICIARY.

A group of litigants held a demonstration in front of the Supreme Court building. The Court ordered them to show cause why they should not be held in contempt of court. The litigants apologized, and the Court dismissed the contempt charges. The Supreme Court ruled in the case of Nestle v. Sanchez, 154 SCRA, 542 (1987) issued per curiam:

The court will not hesitate in future similar situations to apply the full force of the law and punish for contempt those who attempt to pressure the Court into acting one way or the other in any case pending before it. Grievances, if any, must be ventilated through the proper channels, i.e., through appropriate petitions, motions or other pleadings in keeping with the respect due to the Courts as impartial administrators of justice entitled to “proceed to the disposition of its business in an orderly manner, free from outside interference obstructive to its functions and tending to embarrass the administration of justice.”

The right of petition is conceded to be an inherent right of the citizen under all free governments. However, such right, natural and inherent though it may be, has never been invoked to shatter the standards of propriety entertained for the conduct of courts. For “it is a traditional conviction of civilized society everywhere that courts and juries, in the decision of issues of fact and law should be immune from every extraneous influence; that facts should be decided upon evidence produced in court; and that the determination of such facts should be uninfluenced by bias, prejudice or sympathies.”

Moreover, “parties have a constitutional right to have their causes tried fairly in court by an impartial tribunal, uninfluenced by publication or public clamor. Every citizen has a profound personal interest in the enforcement of the fundamental right to have justice administered by the courts, under the protection and forms of law free from outside coercion or interference.” The aforecited acts of the respondents are therefore not only an affront to the dignity of this Court, but equally a violation of the above-stated right of the adverse parties and the citizenry at large.

THIRD GROUND.
THIS RESOLUTION VIOLATES THE EQUAL
PROTECTION CLAUSE OF THE CONSTITUTION.

The lis mota of this resolution has already been settled by the Supreme Court in the case of People v. Jalosjos, 324 SCRA 698 (2000). Under the doctrine of res judicata, a matter once judicially decided is finally decided. Under the doctrine of judicial precedent, a decision of the court furnishes an authority for a similar case afterward arising on a similar question of law. Under the doctrine of stare decisis, the court will stand by precedent and will not disturb a settled point. Stare decisis et non quieta movere. Adhere to precedents, and do not unsettle things which are established. In Jalosjos, the Supreme Court ruled:

What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accused-appellant’s status to that of a special class, it also would be a mockery of the purposes of the correction system.

The accused-appellant avers that his constituents in the First District of Zamboanga del Norte want their voices to be heard and that since he is treated as bona fide member of the House of Representatives, the latter urges a co-equal branch of government to respect his mandate. He also claims that the concept of temporary detention does not necessarily curtail his duty to discharge his mandate and that he has always complied with the conditions/ restrictions when he is allowed to leave jail.

When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in office.

Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under law?

The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law.

The Supreme Court, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class.”

CONCLUSION

This resolution is unnecessary, because the judiciary knows the Rules of Court better than the Senate. This resolution is not beneficial, because it will not influence the judiciary, but may even incur its displeasure. And this resolution is not practical, because the Senate has no army with which to enforce it.

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Press Release

21 June 2007

MIRIAM: TRILLANES WILL STAY JAILED

Responding to media queries, Sen. Miriam Defensor Santiago, a constitutional law expert, said that senator-elect Antonio Trillanes will likely remain in jail even after Congress resumes session in July, following a landmark Supreme Court decision.

Santiago cited the 2000 case of People v. Jalosjos, where the Supreme Court ruled that a convict in jail pending appeal and later elected representative, had to stay in jail even after he won in the election.

"Just because a detention prisoner has won as senator does not mean that he should be free to attend Senate sessions, because that would be a violation of the Equal Protection Clause of the Constitution," Santiago said.

Santiago explained that the Equal Protection Clause requires the government to treat alike all persons similarly situated, and that no undue favoritism may be allowed.

"All persons charged with nonbailable offenses, such as the crime of coup d’etat, have to remain in jail. Election as senator does not entitle a detention prisoner to special treatment. Otherwise, the result is what the law calls an invidious discrimination," she said.

Santiago quoted the ruling in People v. Jalosjos, thus: "Election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty or movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class."

Santiago explained that the Supreme Court ruling was based on the concept of public self-defense. The Court also added that "it is the injury to the public which state action in criminal law seeks to redress. It is not injury to the complainant."

Santiago said that to allow detention prisoners to attend Congress sessions would amount to the creation of a privileged class.

She further quoted the Jalosjos ruling, thus: "Allowing accused to attend congressional sessions and committee meetings will virtually make him a free man with all the privileges appurtenant to the position. Such an aberrant situation not only elevates accused’s status to that of a special class, it would also be a mockery of the purposes of the correction system."

Santiago said that Jalosjos, while a detention prisoner and after election as a representative, was provided with a congressional office and staff at the Batasan. He was also provided with an office at Bilibid Prisons in Muntinlupa. While under detention, Jalosjos was able to file several bills and resolutions. Jalosjos also received his salaries and other monetary benefits as a representative.

"On these findings, the Supreme Court ruled that the prisoner could perform his function as a representative while in jail. In fact, the Supreme Court went so far as to state that since he was a detainee, the accused should not have been allowed by the Bilibid Prison authorities to receive his constituents in jail."

Santiago said the Supreme Court justified its ruling with the following explanation: “When the voters of his district elected the accused to Congress, that would fall with full awareness of the limitations on his freedom of action. That would fall with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison."

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Press Release

21 March 2007

MIRIAM: IS SATUR POLITICAL OFFENDER OR TERRORIST?

Sen. Miriam Defensor Santiago, a constitutional law expert, said that the verdict on the murder charges against Bayan Muna Rep. Satur Ocampo will depend on whether the court finds him to be a political offender, or a terrorist.
Santiago said that under the 1987 Aquino proclamation granting amnesty to rebels, the amnesty applied only to “any act penalized under existing laws in furtherance of their political beliefs.”

“In other words, the amnesty applied only to political offenders, but today, a terrorist is no longer considered a political offender,” the senator said.
Santiago, whose doctoral dissertation was published as the book, Political Offenses in International Law, said a political offense is “an offense committed in the course of, and incidental to, a violent political disturbance, such as war, revolution, and rebellion. A political offense is any crime directly against the government, for example, treason and sedition.”

“Under jurisprudence, an offense does not have a political character, simply because it is politically motivated,” the former UP law professor stressed.
The senator said that while the Aquino proclamation exempted “crimes committed from purely personal motives,” international law has added terrorism as another exception.

“When Ocampo escaped from jail in May 1985, terrorism under international law was already defined as any activity that involved a violent act dangerous to human life that is also a violation of Philippine criminal law,” she said.

Santiago said that a terrorist activity should be intended to achieve any of the following goals: to intimidate or coerce a civilian population; to influence the policy of government by intimidation or coercion; or to affect the conduct of a government by assassination.

Military information chief Lt. Col. Bartolome Bacarro said Tuesday that the military will present a witness who will testify that Ocampo was in Leyte in 1985, when the alleged mass murder in Inopacan, Leyte, was committed.

“While the defense will argue that Satur is a political offender, the military will argue that he is a terrorist who does not fall under any amnesty proclamation, said Santiago, a former Quezon City RTC judge.

Santiago added that because the military discovered the Leyte mass grave only in August last year, the 20-year period for filing the murder cases has not yet prescribed.

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