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.

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.

-o0o-

Breaking News

15 November 2006

SENATE AMENDS ANTI-TERROR BILL, PROTECTS HUMAN RIGHTS

The Senate last Tuesday (14 November 2006) amended the pending Anti-Terror Bill to protect human rights and to make the bill compliant with international law as embodied in the United Nations International Covenant on Civil and Political Rights (ICCPR).

The amendments, which were all approved, were proposed by Senator Miriam Defensor Santiago, whose expertise is international law. She argued that the bill should comply with the principle of legality, which means that the definition of criminal offenses covered by the bill should be precise, unequivocal, and unambiguous.

One of the most important amendments proposed by Santiago is to take away the grant of law enforcement powers to military officers.

“The use of military forces in investigating, arresting, and detaining terror suspects gravely increases the risk of human rights violations. The armed forces are not trained to act as an investigating body, as law enforcers, as prison officials, or as investigators examining bank records or monitoring communications,” Santiago said.

“The UN Human Rights Committee, which is tasked to oversee the implementation of the ICCPR, has expressed its concern that providing the military judicial police functions could lead to violations of the ICCPR,” the senator added.

Other important Santiago amendments relate to surveillance methods employed by law enforcement officers on suspected terrorists.

According to the senator, under international law, surveillance is a legitimate method for counter-terrorism operations provided it is regulated by law, pursues a legitimate aim, and is necessary in a democratic society. She stressed that there should be sufficient safeguards in the law against abuse of surveillance methods.

Santiago proposed that an anti-terror law must provide that any person charged of being a terrorist shall always have the right to challenge the legality of any surveillance conducted over him or her.

Another amendment in the bill which was proposed by Santiago is to reduce from 15 days to 48 hours the period for detention without judicial authorization of a terrorist suspect. This means that the police or government law enforcement officers must deliver a suspected terrorist to the proper judicial authority within 48 hours from the moment the suspect was arrested, detained, or taken into custody.

Santiago said that the right of a detainee to be brought before a judge helps to ensure that the detention is lawful and necessary. It also provides a vital safeguard against torture and forced disappearance, because a judge can physically see the detainee and any noticeable signs of ill-treatment on him or her.

Still another important Santiago amendment provides that testimonial and documentary evidence should be obtained in accordance with law if it is to be used to prosecute terror suspects.

The Senate also unanimously accepted Santiago’s proposal to create an Anti-Terrorism Task Force which shall have authority over anti-terrorism projects of the National Intelligence Coordinating Agency (NICA), the National Bureau of Investigation (NBI), the Intelligence Service of the Armed Forces of the Philippines (ISAPF), the Bureau of Immigration, the Office of Civil Defense (OCD), the Anti-Money Laundering Council (AMLC), the Philippine Center on Transnational Crime (PCTC), and the Philippine National Police (PNP).

-o0o-