Miriam's letter to WB

6 February 2009

Mr. Bert Hofman
Philippine Country Director, World Bank
Fax 637-5870

Dear Mr. Hofman:

     This responds to your letter of 4 February 2009, stating that the World Bank Referral Report "cannot be shared with the Senate."

     As chair of the Senate economic affairs committee and as a scholar of international law, I am deeply disappointed at this routine invocation of the principle of confidentiality, without reference to the environmental circumstances. In any event, I would like to request for a copy of the so-called Redacted Report before the next hearing of the Committee on Thursday, 12 February 2009.

     The World Bank invocation of the confidentiality principle fails to take into account recent developments in Philippine government and in international law, as follows:

Developments in Philippine Government

The WB states that it sent the Referral Report to the Secretary of Finance and the Ombudsman. If it sent the report to those two Philippine officials, then why not give it to the Senate? The refusal is ridiculous, because this Committee would still be able to obtain the Referral Report by issuing to the two Filipino public officials a subpoena duces tecum.

Furthermore, the country is besieged by news items purporting to quote from certain WB documents. Would World Bank rather have gossip flying all over the country about the contents of its Report, rather than setting all speculation at rest by releasing the original document?

On the one hand, there is a compelling state necessity for obtaining the WB Report. On the other hand, there appears to be no logical basis for invoking a hoary principle of international law, which is under attack in several countries.

Developments in International Law

It is conceded that the 1946 UN Convention on the Privileges and Immunities of the Specialized Agencies adopted the "absolute immunity" principle. Section 6 provides: "The archives of the specialized agencies, and in general all documents belonging to them or held by them, shall be inviolable, wherever located."

However, even if it can be argued that conventional law has been transformed into customary law, nonetheless the "absolute immunity" principle is now being reexamined by the international community. I commend to the World Bank Legal Department the following points in international law:

     •   International law is evolving away from the concept of absolute immunity. One example is the case of Siedler v. Western European Union, Brussels Labour Court of Appeal (4th chamber), 17 September 2003, Journal des Tribunaux (2004), 617, ILDC 53 (BE 2003). In this 2003 case, a Belgian appellate court disregarded the treaty-based immunity of an international organization, because of human rights concerns.

     Such cases prompted the paper on "The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals," by Professor August Reinisch, published by Oxford University Press in 2008. In this article, Prof. Reinisch states:

     Another immunity-related issue is likely to become increasingly relevant: the question of the immunity of administrative tribunals themselves, and whether and to what extent the decisions of these tribunals can be challenged by either national or international courts and tribunals . . . .

     It appears that recent tendencies of national courts, supported by the case law of human rights bodies such as the European Court of Human Rights, may increasingly lead to a form of indirect control, assessing not only the availability of administrative tribunals but also the adequacy of the legal protection granted by such alternatives to national courts. . . .

     To date, national courts have generally been rather deferential in assessing the quality of the legal protection given to staff members before administrative tribunals. However, it is not impossible that national courts will become more assertive in exercising their own jurisdiction if complainants manage to persuade them that the procedural treatment they receive before administrative tribunals fall short of international standards, as amply demonstrated by the Belgian case of Siedler v. Western European Union.

     In other words, in the course of the evolution of international law on immunity from absolute immunity to relative immunity, it is possible that a Philippine court might accept jurisdiction over the World Bank, at least with respect to the documents concerning the blacklisted Filipino firms.

     •   There is no Headquarters Agreement between the World Bank and the Philippine Government. The provisions of the 1947 Convention on the Privileges and Immunities of the Specialized Agencies are in the process of evolving. Hence, ex abundanti cautela (an abundance of care), specialized agencies seek to reinforce the "absolute immunity" principle by entering into Headquarters Agreements with the government of the host country.

     Among the Headquarters Agreements executed with the Philippine government by specialized agencies are those with the Asian Development Bank, International Center for Living Aquatic Resources Management, and most recently, the International Rice Research Institute.

     Unfortunately, the World Bank never bothered to enter into a Headquarters Agreement with the Philippine government. Thus, it is possible to argue that the "absolute immunity" principle having evolved, the World Bank does not enjoy absolute immunity from judicial or other proceedings.

     •   In the landmark case of Liang vs. People, 355 SCRA 125 (2001), the Philippine Supreme Court ruled that international organizations, but not its officials, enjoy absolute immunity. The Court explained: "The immunity of the Asian Development Bank is absolute, whereas the immunity of its officials and employees is restricted only to official acts . . . . This is in consonance with the current trend in international law which seeks to narrow the scope of protection and reduce the privileges and immunities granted to personnel of international organizations, while at the same time aims to increase the prerogatives of international organizations."

     Confidentiality Rule Should be Reconsidered

     Hence, there are grounds to argue that this Senate has jurisdiction to issue a subpoena duces tecum to certain WB officials. Naturally, your Legal Department might wish to argue this point, but WB will have to wait for an opportunity to raise it in court.

     As chair of the Senate economic affairs committee, with the constitutionally protected power to conduct inquiries in aid of legislation, I strongly urge the World Bank Legal Department to study the points I have raised in this letter, and to act accordingly.

     Thank you.

                                                                    Sincerely yours,
                                                                    (sgd..)

                                                                    MIRIAM DEFENSOR SANTIAGO
                                                                                      Chair
                                                                    Committee on Economic Affairs