MIRIAM: MAY I RESIGN?
4 February 1999

Sen. Miriam Defensor Santiago said that she is studying whether it would be legal for her to resign from the Senate, if she is appointed to an international institution such as the International Court of Justice, or the International Criminal Court.

"The problem is that neither the Constitution nor the Rules of the Senate provide for voluntary resignation," she said.

She said that on the one hand, she cannot be compelled to remain in the Senate because it might constitute "involuntary servitude," which is prohibited by the Constitution.

But she also said that on the other hand, if she resigns without legal authority, she might be liable for the offense of "abandonment of office or position" under the Penal Code Article 238.

Santiago said the next election for an Asian judge of the world court is this year, and after that the next vacancy will arise in 2003.

Santiago was elected senator in 1995, and her six year term expires in 2001.

She issued the clarification on the request of media after an interview yesterday (February 4) on the radio show "Tambalang Failon at Sanchez," hosted by Korina Sanchez and Ted Failon.

Answering a question by the hosts, Santiago explained that if President Estrada nominates her to the world court and if she is elected by the UN General Assembly and Security Council, then she would have to resign from the Senate.

During the interview,Santiago expressed disappointment that she has twice been denied the chairmanship of a "legal" committee, such as Blue Ribbon, justice and human rights, and constitutional amendments.

"On two successive occasions,each senator was asked to indicate his choice of committee. Most if not all got the committee he preferred, except me," she said.

Santiago said that she was left with no conclusion except that she has been "excluded purposely."

"I detest these little power games in the Senate. They brought me to tears," said Santiago, explaining why she is attending a judicial conference in New Delhi, next week.

MIRIAM WARNS SENATE: VFA "VOID AB INITIO"
8 February 1999

Sen. Miriam Defensor Santiago warned her fellow senators that the proposed VFA (Visiting Forces Agreement)is already "void ab initio" (meaning, void from the very beginning).

Santiago said that even if the Senate ratifies the VFA, if any taxpayer questions its validity,the Supreme Court will most likely rule that it is void.

She said that the VFA is void from the beginning, because the Constitution requires the United States government to recognize it as a treaty.

Under the US Constitution,any treaty shall be entered into by the US President "by and with the advice and consent of the US Senate."

Santiago pointed out that United States Ambassador Thomas Hubbard, as well as US state department officials have reportedly said that the US government considers the VFA as a mere executive agreement.

Under American law, anexecutive agreement, unlike a treaty, does not require the participation of the Senate.

Santiago said the only way for Malacañang to save the treaty is to obtain the concurrence of the Senate in the interpretation of the constitutional requirement that the VFA should be "recognized as a treaty by the United States."

"At this stage, the Senate has no legal basis for proceeding with the ratification process, unless and until we answer the question of how to interpret this constitutional requirement," Santiago said.

Santiago also said that it is American law which will determine how the US government will "recognize the VFA as a treaty."

Santiago said that even if US state department officials have said that they consider the VFA as a mere executive agreement, the US government can still recognize it as a treaty.

"On the one hand, the US government seems to consider it an executive agreement that does not need Senate consent. But on the other hand, the US government still retains the authority to declare that it recognizes the VFA as a treaty, in the sense that the US will honor all treaty obligations," she said.

Santiago said the Estrada administration should seek the opinions of constitutional law experts such as former Supreme Court Chief Justice Enrique Fernando, former Senator Arturo Tolentino, and Fr. Joaquin Bernas.

She also suggested that the Senate should request the opinions of international law experts such as former Supreme Court Justice Florentino Feliciano (now judge of the Arbitral Tribunal of the International Labor Organization), former Court of Appeals Justice Jorge Coquia (with whom Santiago co-authored a casebook on international law), and UP law dean Merlin Magallona.

Santiago said she would be willing to cooperate with Malacañang in resolving the basic legal issue, which she called a "threshold or prejudicial question," because it must be resolved before the Senate can proceed with the rest of the scheduled public hearings on the VFA.

MIRIAM: DUTERTE HAS RIGHT TO RESIGN
9 February 1999

Sen. Miriam Defensor Santiago said that any senator or representative has a right to resign, but he should wait until his resignation is accepted or else he could be jailed for abandonment of office.

Santiago delivered a privilege speech in reaction to the reported resignation of Rep. Rodrigo Duterte of Davao City.

"The Constitution allows the president and the vice-president to resign. Therefore, senators and representatives have a similar right to resign," she said.

Santiago said that the right to resign is protected by the Due Process Clause and the Equal Protection Clause of the Constitution.

Santiago said that under the Penal Code, the crime of abandonment of office occurs only if the public officer abandons his office before his resignation is accepted.

"Contrary to the misimpression of some, the Penal Code actually recognizes the right to resign. The Penal Code simply sets a condition for exercising this right. The condition is that he must wait for acceptance of his resignation," she said.

Santiago said that under cases decided by the Supreme Court, the letter of resignation should be tendered to the government agency authorized to appoint the successor or to call an election to fill the office.

"Under the Electoral Reforms Law, it is the Comelec that is authorized to hold a special election to fill a permanent vacancy in the Senate or the House. Hence, the resignation of a Congressmember should be submitted to the Comelec," she said.

Santiago added that as a precautionary measure, and as a gesture of courtesy, copies of the letter of resignation should be furnished to either the Senate President, or the House Speaker, and to the President at Malacañang.

ERAP TO TAP MIRIAM AS CHARTER GURU?
12 February

President Estrada, under siege by financial scandals in Malacañang, has reportedly decided to turn for support to an unlikely source - Sen. Miriam Defensor Santiago, his rival for the presidency in last year’s elections.

This developed as Santiago admitted that she cancelled a planned trip this Saturday to a New Delhi judicial conference, in order to attend a Malacañang meeting next week.

Senate sources said they processed Santiago’s papers for the Asian conference of the World Jurists Association, in the belief that she plans to transfer to the international judiciary.

Ironically, Santiago has raised constitutional questions on at least two Estrada policies: charter change, and the Visiting Forces Agreement.

Instead of lashing out at Santiago, the president instead expressed respect for the senator’s expertise in constitutional and international law.

Santiago, who proved an implacable opposition senator under the past administration, said she was "impressed" with Pres. Estrada’s willingness to keep an open mind on national policy issues.

Now it seems that the two unlikely members of a mutual admiration club will cement their alliance with an informal advisory group to the president.

"I have no reservations about private personal consultations on legal issues," Santiago said.

But she said she prefers to be part of a "small group" that would thresh out controversial issues with the president, on an informal basis.

"Like Pres. Estrada, I hate boring interminable meetings. I’ll discuss the law, and then I’m out of there," she said.

She also said she is "seriously debating with myself" on whether she wants the president to nominate her this year to the International Court of Justice.

My term as senator expires in 2001. To become a World Court judge, I would have to resign at the end of this year. That might be unethical," she said.

Santiago recently delivered a privilege speech, pointing out that Congress members have a right to resign, although they have a moral duty to serve out their terms.

"Serving as judge of an international tribunal, and serving as a presidential consultant, are mutually exclusive functions. I’ll have to choose one or the other," she said.

Santiago said she is in "an agony of indecision," about her future career path, but she will abide by Pres. Estrada’s decision.

"My constitutional objections to charter change and to the VFA are surmountable. But they should be threshed out, before someone questions them in court," she said.

MIRIAM URGES OMBUDSMAN TO CITE MORATO FOR CONTEMPT
16 February 99

Sen. Miriam Defensor Santiago urged Ombudsman Aniano Disierto to study whether Manuel Morato could be cited for contempt, for his alleged "crude remarks" against former Supreme Court Justice Cecilia Muñoz Palma, PCSO chair and general manager.

Santiago said that the remarks constituted "improper conduct tending directly or indirectly to impede or degrade the administration of justice."

Santiago, a former RTC judge, made the comment in a privilege speech yesterday (16 February).

In her speech, Santiago praised Palma as the first female justice of the Supreme Court, the first female head of a constituent assembly, the first female district judge, and the first female government prosecutor.

The 85-year old Palma recently asked the NBI to investigate the alleged misuse of P351 million by Morato as her predecessor.

However, the NBI desisted from continuing with the probe, on the request of the Ombudsman who is conducting his own investigation of the same criminal charges.

Santiago said that Morato’s remarks against Palma constituted "the speech of hate" which is not protected by the Constitution.

She said Morato’s remarks are libelous and are an abuse of the freedom of speech.

The senator said that Morato’s remarks aired at a TV show were malicious because they showed "reckless disregard of the truth."

Santiago said that Morato was "engaging in the politics of hate and destruction."

MIRIAM WARNS: SAL MIGHT HARASS TAXPAYERS
16 February

Sen. Miriam Defensor Santiago said that there is merit to the Malacañang proposal to require every taxpayer to submit a statement of assets and liabilities.

But at the same time,Santiago warned that the SAL requirement might lead to undue harassment of taxpayers.

She said that under the Internal Revenue Code, the BIR commissioner is only allowed to base his assessment on the best evidence obtained.

"A SAL requirement might produce more harm than removing the law on secrecy of bank deposits," she said.

She pointed out that the US and Japan do not have a SAL requirement.

She also warned that most taxpayers would find it difficult to prepare a SAL, while revenue officers might find it difficult to use the SAL, because the statement is true only as of the date when it is prepared.

SENATE WANTS ERAP TO HEED MIRIAM ADVICE ON ASSETS PLAN
17 February

The Senate officially endorsed to Pres. Estrada yesterday (February 17) the warning raised by Sen. Miriam Defensor Santiago that there is a "constitutional objection" to the plan requiring every taxpayer to file a statement of assets and liabilities (SAL).

This developed after the Senate voted to send Malacañang a copy of Santiago’s privilege speech late last Tuesday, warning that a SAL scheme might violate the citizen’s right against self-incrimination.

Santiago also pointed out that the SAL scheme might violate the existing law protecting the secrecy of bank deposits.

Majority Leader Franklin Drilon filed a motion to formally submit the Santiago position paper to Malacañang.

Santiago said that a SAL requirement might violate the constitutional right against self-incrimination,because by using the networth method, the BIR could already establish a prima facie case of under-declaration of income.

Under the networth method, any increase in a person’s networth, if unreported and unexplained by the taxpayer, is presumed to come from income derived from a taxable source.

"Under the Internal Revenue Code, the BIR commissioner is allowed to base his assessment only on the best evidence obtained, and not on the self-incrimination of the taxpayer," she said.

Santiago also said that a SAL requirement would violate the law on secrecy of bank deposits, because a SAL would require the taxpayer to declare the amount of his bank deposits, both in and outside the country.

"The SAL would, in effect, lift the ban on disclosure of bank deposits, because a taxpayer could be required to list his banks and the corresponding account balances in each bank account," she said.

Santiago pointed out that there is no SAL requirement in major countries like the US and Japan.

In addition to her constitutional and legal objections, Santiago named four grounds for questioning the feasibility of a SAL scheme:

First, Santiago said, laymen would find it difficult to prepare a SAL because valuation of the assets would be a problem.

"Assets that are not real properties are subject to depreciation, but laymen would need accountants to apply the concept of depreciation or amortization on their assets," she said.

Santiago said that corrupt taxpayers could evade the SAL scheme simply by hiding most of their assets such as jewelry, furniture, and appliances.

"It would be extremely difficult to implement the SAL scheme because it would be just as unreliable as income tax returns," she said.

Second, Santiago said that corrupt taxpayers could sabotage the SAL by transferring their assets to a trust arrangement, thus excluding the assets from the SAL.

"If an asset has been acquired by donation or inheritance, then the SAL would be a misleading basis for the BIR to make a finding that the taxpayer has under-declared his taxable income," she said.

Third, Santiago said that the SAL has limited uses, because the SAL is true only as of the date when it is prepared.

"A crook would keep his income undeclared and then use it to finance his extravagant lifestyle, such as trips abroad and excessive gambling bets. In that case, the crook would have a lower SAL than an honest taxpayer," she said.

Fourth, Santiago said that the SAL might lead to undue harassment of taxpayers, because the BIR would presume that the SAL indicates the actual capacity of a taxpayer to pay, without considering attempts by sophisticated taxpayers to misdeclare their assets and liabilities.

MIRIAM TO ERAP: STOP AND FRISK
18 February

Sen. Miriam Defensor Santiago urged Pres. Estrada to proceed with his initiatives against crime and tax evasion, without need for new laws from Congress.

"The ends pursued by Pres. Estrada are valid. But the means sought to be employed by his aides are unnecessary and faulty," she said.

Santiago said that it is unnecessary for Congress to pass Senate Bill No. 1470 seeking to expand the scope of warrantless arrests. 

She said that it is also unnecessary for Congress to pass House Bill No. 5345 on the controversial statement of assets and liabilities (SAL).

"Those bills will only serve to embarrass the President. He doesn’t deserve that, because his goals are legal in themselves," she said.

Santiago said that the law on warrantless arrests does not need to be expanded, because Supreme Court decisions already support the right of the police to "stop and frisk."

She plans to deliver a privilege speech next Tuesday pointing out the flaws in the Senate bill on warrantless arrests.

She said that the Rules of Court on warrantless arrests were amended in 1985 to make them stricter.

"The present bill would have the effect of returning to the old law, which allows the police to make a warrantless arrest on the basis only of reasonable ground, instead of personal knowledge," she said.

She said that the bill is unnecessary because under existing jurisprudence, the test of "reasonable ground" is already being used for a "stop and frisk" situation.

She said that under the "stop and frisk" rule, the policeman is entitled to make a forcible stop of a citizen, when there is reasonable ground to believe that the suspect is armed and dangerous.

She added that under the "stop and frisk" rule, the police are allowed to conduct not only a warrantless arrest, but also a warrantless search.

"The degree of suspicion that will justify a ‘stop and frisk’ is even less than probable cause, so the police already have enough power," she said.

Santiago explained that the right to stop is limited to situations in which the suspect is believed to be armed and dangerous.

"Since there is a right to stop an armed and dangerous suspect, then the right to frisk will automatically follow from the right to stop," she said. Santiago is a former RTC judge and former immigration commissioner, a post which brought her the Magsaysay award for government service.

As immigration commissioner, Santiago successfully argued before the Supreme Court that her intelligence agents were entitled to make warrantless arrests and seizures, as long as there was probable cause.

She also said that since the goal of the President is to prevent tax evasion among the rich, then the SAL requirement should apply on an optional basis only to taxpayers with annual incomes of P500,000 or more.

"If the rich taxpayer refuses to file the SAL, that is his right, but the BIR should then prioritize him for investigation," she said.

She added that if the goal is to collect more taxes from the rich, then the goal is better served by imposing so-called "green taxes."

"Congress should impose green taxes on pollution and other undesirable externalities," she said.

Santiago said that Congress should levy a "carbon tax," meaning a tax on carbon dioxide emissions from power plants and other sources.

"Pres. Estrada’s tax policy is to create more jobs by favoring people instead of machines. Therefore, we should reduce taxes on labor while reducing tax breaks for corporate producers," she said.

Santiago said that taxes on gasoline should include the cost of environmental damage.

Santiago delivered last Tuesday a privilege speech on the legal flaws of the SAL requirement, which the Senate sent to Malacañang.

She said that a SAL requirement might violate the constitutionally protected right against self-incrimination.

"In a decided case, the Supreme Court held that a person cannot be compelled to give a sample of his handwriting. Hence, a compulsory SAL would be self-incrimination and therefore unconstitutional, unless the taxpayer waives his right," she said.