Category Archives: Interview

mds in yellow suit2

Miriam on the EDCA

On the Enhanced Defense Cooperation Agreement signed by the US and PH yesterday (28 April 2014)

This is an unfair surprise on the PH Senate which, under the Constitution, shares the treaty-making power with the President.  All the while, the Committee on Foreign Relations, of which I am chair, expected that any such Agreement would be signed by the two Presidents.  I have argued that such an Agreement should first be submitted for concurrence to the Senate.  (There was no hint that the Agreement has been downgraded, for signature not by the two Presidents, but only by the defense secretary and the American ambassador in Manila.)  This contretemps does not indicate good faith on the part of the two Presidents.  The use of guile in diplomacy should be limited to state-to-state situations, and should not include a situation involving only two branches of the same government.

What should Filipinos think about when it comes to this agreement with the US?

Filipinos should keep uppermost the supremacy of the Philippine Constitution.  We should not accommodate any foreign power at the cost of the sovereignty of our Constitution, even if the problem is presented as if it were a problem of national survival.

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Sen. Santiago was the guest speaker at the commencement exercises of the Gordon College in Olongapo City last 2 April 2012

Excerpt from an interview with Sen. Santiago – 2 April 2014

Once the Ombudsman files the plunder case in the Sandiganbayan against public officials involved in the PDAF scandal, should the accused senators be immediately suspended from public office?

Yes, that is automatic under the law. Once the Ombudsman files a case before the Sandiganbayan, automatically, instantaneously, the public official is suspended from public office, since plunder is exclusive only to public officials. Furthermore, immediately, the accused should be held in jail unless the evidence is weak. So you see, there is a reversal of the usual attitude in law; we always presume that the evidence is weak because of the presumption of evidence. However, in plunder, notice that the presumption is reversed—we always presume that the evidence is strong, and it is the burden of the accused to show that the evidence is weak if you want to go out on bail.

Oras na masampa iyan—kasi sa ngayon hindi pa naisampa sa korte kundi nabigkas pa lamang ng Ombudsman dahil mayroon pang panahon para magsampa ng motion for reconsideration. Mayroong sariling rules of procedure iyang Ombudsman, gaya nang may sariling rules of procedure ang Sandiganbayan. Dito sa Ombudsman, kung sabihin niya na final na ang kanyang resolution, isasampa na iyan. Kailangang umakyat pa sa Court of Appeals or Supreme Court para kumuha ng TRO—mahirap yatang kumuha ng TRO laban sa fiscal. Unless there is a TRO or other injunctive relief, the moment the case is filed and stamped received by the Sandigan clerk of court, automatically the senator goes to jail and is suspended from public office. If he is found guilty, then of course he goes to jail for a lifetime because we no longer have capital punishment. Ordinarily, that kind of case would be considered punishable by death. He would have to go for the rest of his life, and then all his properties would be confiscated. That would be payback time.

I would like to express my admiration for this kickass resolution by the Ombudsman. It was difficult for her to make that decision because she is up against very powerful people, extremely powerful people. Then again, in a society that has already convicted a president who was ultimately granted pardon and is already trying to prosecute another former president, that is a natural progression, I think, in the attitude of the people. They now understand what is the meaning of the rule of law.

I thought yesterday was a very happy day. This is the first time in history that a Senate President has been indicted. That is an indictment not only of the Senate President involved, but also of the entire Senate. What kind of Senate will elect a Senate President, a man who ultimately turns out to be one of the biggest thieves in the country?

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Santiago being mobbed by nurses after her speech at the opening ceremonies of the two-day annual national convention of the Operating Room Nurses Association of the Philippines (ORNAP), last July 7, at the Manila Hotel Fiesta Pavilion.

Interview transcript: Online libel, Cybercrime Law, MCPIF, PDAF Scandal, DAP – 20 February 2014

On the recent decision of the Supreme Court on the Cybercrime Law

Long before the Cybercrime Law was presented to the Supreme Court, I already predicted that some of its provisions would be declared unconstitutional and particularly the provision on libel on the internet. In my view therefore, although the decision is a half-victory for some and a half-victory for others because it just picks out certain provisions as unconstitutional; nonetheless, we still have remedies available. Number one, there can still be a motion for reconsideration of the libel provision and number two the Senate can still rapidly on this new Cybercrime Law that I have filed. I am going to redouble my efforts in view of this decision by the Supreme Court, which I think is unfortunate in some respects. Let me explain.

Under our Constitution, freedom of speech occupies the highest ranking in the hierarchy of values of the bill of rights. So that must stand for something. It’s the very first provision. It says, no law shall be passed abridging the freedom of speech, the freedom of press, and the cognate rights of individuals and groups within our society. This means, therefore, that number one, ordinarily, a law enjoys the presumption of constitutionality. When you question a law before the courts, the courts must start with the presumption that the law is constitutional. But, because of the priority given by the bill of rights to the freedom of speech, plus the language of the law itself inside the Constitution, which states, no law shall be passed abridging freedom of speech although the courts have allowed libel laws under those provisions. Nonetheless, for me, the meaning of the way that provision is worded and is position as first in the hierarchy of civil and political rights of the citizen is that contrary to the common presumption in favor of laws in general, any law against freedom of speech should be presumed unconstitutional, otherwise, there’s no meaning to that constitutional provision, isn’t that so?

Now, in more technical terms, online libel, as it is presently worded, where the court says, well, if you put it online, it is just like libel in any of the traditional forms of media, makes a gross mistake in the identity of the traditional media against that of the social media. These are two completely different universes. They are not operating within the same universe as traditional media: radio, TV, and print. In TV, radio, and print, once you are maligned, it is extremely difficult to get your side aired. Because, for example, if your enemy is political in nature, the political enemy that you have made could be a crook and he would have much more money than you do, because, precisely, he is a crook. He steals money from the government. So, if he publicizes a libelous article against you, it is very difficult for you to receive equal space and equal time for your time, because the illicit fortune of your enemy makes him so rich that he is virtually outside the rich of our judicial system. But that doesn’t apply on the internet. On the internet, if someone posts a blog [entry] or a tweet, or some comment against you, you have the full right to answer him in kind and you don’t have to pay anything. That is the main difference between [the] internet and traditional media with respect to the crime of libel. It is a wide-open universe unlike the restricted universes of traditional media. To make it more technical, let me just say that the criminal libel provision of the present internet law violates at least two widely accepted principles of constitutional law. The first is the void for vagueness doctrine. As presently worded, the provision on online libel is so vague that you hardly know who are covered by it. Although the Supreme Court has said that it is only the sender who is liable not the person who is commenting or receiving. But what do these words mean? Who is the sender? Is it the service provider, the individual netizen, or if they are a group, how do we identify them? Even worse, if they are not using their true identities, how are you going to go beyond what they professed to be their identities on the internet? That is the main problem today. Identity theft is common on the internet. We’ve never heard of this crime before. So, these emphasize how different the internet is from traditional forms of media. The Supreme Court is treating social media as if it were just a scion or successor or just another classification of traditional media—it is not! Here we have a case that unfortunately, appears to be jurisprudence trailing after technology because of lack of information of how the internet operates in society. That is the first objection: the void for vagueness doctrine. The language of the law that has been passed upon by the Supreme Court is so vague that it becomes illegal since it is a very significant constraint on the preferred freedom of the entire bill of rights—the freedom of expression or the freedom of free speech.

The second objection in constitutional law terms is overbreadth. Sinasakop na niya ang lahat, kaya hindi mo maiintindihan ngayon this law. The basic principle should be that the law should be confined within very strict limits.  Only a certain group of persons are liable under this provision. But this law plus the interpretation of the Constitution makes this field so wide open. It is virtually almost like the void for vagueness doctrine that you no longer have any clear voice or signals on where the line ends or begins. So for these two reasons, the void for vagueness doctrine and the overbreadth doctrine, I humbly submit that the Supreme Court ruling on these particular provisions is erroneous and I call on all netizens to magnify all our efforts and to speed it up as soon as possible so we can either file a motion for reconsideration with respect to this particular libel provision or we can speed it up here in the Senate on the new law that I have filed from crowdsourcing (Senate Bill No. 53, The Magna Carta for Philippine Internet Freedom). It was not me who crafted this law, but all the netizens coming from different professions, naturally, from lawyers, but also from civil engineers, etc.

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MIRIAM: SC HAS POWER TO DECIDE PORK CASES

Sen. Miriam Defensor Santiago, a constitutional law expert, said in a radio interview yesterday, that under the Constitution, the Supreme Court is no longer bound by the so-called “political-question doctrine,” under which a court should refuse to decide an issue involving the exercise of discretionary power by the executive or legislative branch of government.

Santiago was commenting on the view taken by some pork barrel advocates that the Supreme Court has no power to act on the pending pork cases because it is prohibited by the “political-question doctrine.”

“Constitutional scholars are united in the view that under the present Constitution, the Supreme Court is no longer inhibited from deciding political questions.  The Constitution now provides that judicial power includes the duty of the court to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government, even in cases involving political questions,” she said, quoting Art. 8, Sec. 1, paragraph 2.

Santiago said that the cases questioning the constitutionality of pork barrel, or lump-sum appropriations, present a question of whether the political branches of government, meaning the executive and the legislative branches, have committed grave abuse of discretion in spending the people’s money.

She defined abuse of discretion as “a decision that is asserted to be grossly unsound, unreasonable, illegal, or unsupported by the evidence.”

Santiago, the Senate’s constitutional law expert, defined “discretion” as: “the public official’s power or right to act in certain circumstances according to personal judgment and conscience, often in an official or representative capacity.”

Asked by a radio interviewer what advice she will give to President Aquino, who has defended the pork barrel, Santiago replied: “Life is a consequence of our moral choices.”

In the same interview, Santiago said that it is “not feasible” to implement the proposal by former Supreme Court Chief Justice Reynato Puno that a law prohibiting pork barrel or lump-sum appropriations should be passed using the peoples initiative system provided for by the Constitution.

“That is an idealistic and constitutional proposal.  However, I am afraid it will not be feasible, because the number of signatures required on a petition is too high and can be subverted by vote-buying, to convince voters to stay away,” she said.

Under the law on people’s initiative, the people can directly propose and then enact a law, but only after the registration of a petition which must contain at least 10% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voters.

“The Commission on Election says that in the last 2010 elections, there were 50,896,164  number of registered voters, so the petition must be signed by at least 5,089,616 voters,” she said.

Santiago said that it would be too expensive to conduct information and education campaign for voters so that they can understand the meaning and context of an anti-pork barrel law under the system of initiative and referendum.

She said that a better alternative to the Supreme Court petitions and to the proposed petition for initiative and referendum is a Budget Control and Impoundment Act, originally proposed by President Aquino when he was a senator.

“I have already re-filed President Aquino’s original measure, with the permission of his office staff.  It provides that, like its American version, after Congress authorizes appropriations, and the executive department does not intend to spend the budget items for which he is authorized, then the President has to go back to Congress with a request to impound the appropriations.  The power to grant or not the request to impound will continue to belong to Congress.  Thus, such a law will preserve the congressional power of the purse,” she said.

Santiago said that the Senate should prioritize a Budget Control and Impoundment Act, if it is sincere about the budget reforms.

“President Aquino was correct when he was a senator.  The President should not make a habit of requesting large budgets for some departments and then, in the middle of the year, juggle the funds, repackage it as Disbursement Acceleration Program, and spend it the way he wants,” Santiago said.

The senator said that the Constitution authorizes a transfer of appropriations only from savings, which she defined as money saved, particularly sums of money saved on a regular basis, by means of economizing.

Santiago said that the constitutional term “savings,” is a so-called term of art, meaning that it should be strictly construed.

“Under the rules of constitutional construction, as a general rule, a constitutional provision should be construed as mandatory.  There is always a strong inclination in favor of giving obligatory force to a provision of the Constitution,” she said.

Senate BIll No. 404 – Budget Control and Impoundment Act