Press Release
March 5, 2015

Transcript of the interview with Sen. Miriam Defensor Santiago
after the Senate committee on foreign relations hearing on six treaties

On the Bangsamoro Basic Law (BBL)

Sen. Miriam Defensor Santiago: Let's start from the worst possible blockage to the Bangsamoro Basic Law--that is the opinion of the Supreme Court. All roads lead to the Supreme Court. You cannot emphasize certain aspects of possible negotiations between the two panels. Everything must begin and end with the Supreme Court. Unfortunately, we are dealing with the Constitution of the Philippines. The Constitution is immutable, it is unchangeable, it is non-variable. It is not like a rubber band; it does not have that flexibility. You cannot interpret it one way on Monday and interpret it another way on Friday. So we must begin the discussion on the BBL with this basic question: Is it constitutional?

And let us divide that major question. The first subdivision should be like this: What is the constitutional basis for the authority to negotiate on the part of the Philippine government. The President simply assumed he had the authority to negotiate. That is not so. The president does not have sole power over the foreign policy of the Philippines.

The Constitution implies that the foreign policy is shared between the President on the one hand, the Senate on the other. For example, just as I showed this morning, even if the President has already ratified a treaty, it cannot come into force and effect in this country unless the Senate concurs in the ratification. This shows you that the attitude of the Constitution is that foreign policy power must be shared between the president and Congress, but more specifically, the Senate.

Now, where is the Senate authorization for the president to conduct these negotiations, sometimes called the peace process? He does not have an instrument of such nature. He just assumed that he has that power but he does not. If the Constitution requires that the President cannot move in foreign relations unless he has the concurrence of the Senate, how much more does the spirit of the Constitution require that there should be Senate concurrence when the president authorizes a so-called peace process through a peace panel? That is the very first question that tends to be overlooked. It should be the Senate of the Philippines. At least we are representative of the people; he is not.

The second question is, who gave the MILF authority to represent the Bangsamoro among the MNLF, MILF, BIFF and other groups that are now springing into existence? Which one shall be validly allowed to claim that it represents the Bangsamoro or the entire Islamic peoples within the Philippine territory? The first thing that will happen when we pass this Bangsamoro Law is there will be an internal war, another non-international armed conflict, this time among those claiming to be leaders.

So the very first question really is the standing to negotiate. Where is the authority of the president of the Philippines and the MILF to negotiate a substate? That is the first question.

And then let me just go on in this manner. It is irrelevant what date the Senate will hold its debates on whether or not we shall pass this law. Eventually, whether or not Congress passes the BBL, the matter will end up in the Supreme Court. So there is no point attacking people like me just because we say, as dedicated students of Constitutional Law, that it is unconstitutional. We are almost like marionettes, we who have been trained in constitutional law. You feed us a principle and out will come the results. We have no choice. Whether we personally approve of a certain provision of the Constitution, once it is written there, we are bound by it as constitutional scholars.

So we have to stop talking of negotiating the Constitution. That is heresy! The Constitution is supreme. It is a violation of principle of constitutional supremacy to say that we should negotiate the Constitution. What are we supposed to negotiate about the Constitution? The Constitution is non-negotiable, period.

So if only we had bothered for Malacañang to get in touch with the Senate leadership so that we could work out a document in the form of instructions of the Senate to the President concerning the so-called peace talks, this would not have happened. The thing is that everyone overlooked the basic fact: Do they have authority to negotiate? If they claim to have it, what is its basis in the Constitution? Treaty nga lang, hindi mo maisagawa iyan nang hindi kami nag-concur, iyon pang gagawa ka ng substate?

Because there is no question about it: What is being created under the BBL is a substate. And what is irrefragable--without a doubt, indubitable--is that it divides sovereignty. Of course, this is an age when sovereignty is no longer unlimited. That is a negative way of putting it. There are now claims to reduction of sovereignty possessed by a state. That is very hard to understand. The state is equal to sovereignty. So how can there be a state without sovereignty? Answer: That is what happens when the state limits its own sovereignty. It is an auto-limitation imposed by the state on itself.

Let me give you an example. States that are members of the European Union agree to a diminution of their sovereignty because they have to obey what the European parliament says, or what the European court of human rights says. These are auto-limitations on their sovereignty. But otherwise, there is no way you can limit the sovereignty of a state. However, the BBL infringes on our sovereignty as a state because there are powers under the BBL that are exclusive only to them. If their powers are exclusive, that means that they exclude the powers even of our own state.

So this is really much more complicated than what those negotiators think. Why did they not first ask each other and show each other the proper papers for negotiation? That is the normal procedure. That's the first thing that is done during the process of negotiation: you show each other the papers authorizing you under your government's Constitution to conduct negotiations with the other party.

During the debate in the Senate, I can draw up a list of all the unconstitutional provisions. I cannot do that at this point because there are so many of them. There is an excess, there is an abundance of unconstitutional features because the negotiators of the Philippine government thought that they can negotiate away certain parts of the Constitution.

For example, our Constitution speaks of local government. Local governments we are familiar with: provincial, municipal, barangay. But nowhere does the Constitution mention a substate. What is the basis for proposing a substate and now securing the consent of the Congress by means of the BBL? What will be our constitutional basis? It is not mentioned, not even once in the Constitution. An autonomous region, yes, that is allowed. That is specifically mentioned in the Constitution. So unless the BBL is first of all transformed into a document for more regional autonomy or autonomy in other guises, it has no legal basis at all from the very start.

So this constitutional problem will prove to the undoing of the BBL, because, as I said, the Constitution is immutable. You cannot change it; it is like the face of a blank wall. You are a marathoner, you're running, and then all of a sudden you're faced with a blank wall. You either get over that blank wall by taxing yourself to your limits, or you give up. They have to scale these constitutional obstacles first.

But statements that we can only negotiate, we cannot dictate, are not useful. In fact, they are not intelligent. They recognize that we have a Constitution. That's why we call ourselves a republic because we are based on a constitutional government. But they tell us that we have to negotiate first. We cannot negotiate a constitutional provision, no matter how solitary it is, or no matter how minor it might seem to others. That is a big problem. As I said it is like facing the blank face of a mountain. First you have to climb that.

So it is not a question of whether I want it to be constitutional or not. That kind of personal moral choice is beyond me; I am not given any margin of safety there. When I read the Constitution according to how I was educated by many foreign and respected authorities in constitutional law, I must make up my mind on whether it is constitutional or unconstitutional. I cannot negotiate, not even a single word in the Constitution. That is what they should remember.

To summarize, let me just say, we have a big problem. To paraphrase, "Houston, we have problem."

On the timeline for the BBL:

We operate on a committee basis here. This matter has been assiged to three committees, including my committee. The primary committee is the committee on local government. So it depends on the chair of the committee on local government. I have already conducted my own committee hearings. One is sufficient because the subject matter over which I have jurisdiction is not dependent on facts; it is dependent on principles, so we only needed one hearing. In the case of Senator Marcos, he thinks more facts need to be gathered first, and he is even thinking of conducting hearings in Jolo or in Zamboanga, or somewhere else in Mindanao.

So under our committee system, since the chair of the committee basically controls the proceedings, it will depend on when he thinks his proceedings are finished. In my case, I will just submit my report to him. We have already agreed. My report is ready. The other committee will submit a similar report. Then [Sen. Marcos] will either submit all reports together, or he will try to assimilate it.

So to put a timeframe on it, becuase there have been talks that we might finish by July, for me, is irrelevant. That's not important. You might finish passing a bill but it will immediately go to the Supreme Court. That's why we must take care to allow for this addendum, and it will immediately be questioned in the Supreme Court.

Let us say that BBL will possibly pass or fail by July, but it will immediately be hailed by the Supreme Court. So we cannot finish it this year; you cannot hurry up the Supreme Court. There is a time limit in the Constitution but the Supreme Court itself has held that it is not bound by those time limits.

Is the June target realistic?

For the House of Representatives, maybe, because they appear to be more cohesive there. But as anybody knowledgeable in Philippine politics will tell you, the Senate is a completely different matter with respect to organizational behavior. The Senate, it is often said, is composed of 24 republics. In other words, every senator insists on his own electoral independence. When it's time for voting, we are unlike the House in which you can predict the results by knowing which groups are going to vote in what way, because you will be able to predict that if they belong to a certain group, they will vote in a certain way. In the Senate, no. You cannot depend on a single senator to vote depending on your provisions.

So it's possible, but as I said, that's not important because it will go straight up to the Supreme Court anyway. It's the Supreme Court date that's important. Let's assume it passes and it's petitioned right away in the Supreme Court. How many months will the Supreme Court need? Nobody knows. So to say, for example, that by this year, we will have peace in Mindanao because of the peace process is misguided.

Is it proper for the President to include the BBL in his accomplishments for the SONA? Can he secure a Nobel Prize for Peace because of the BBL?

Normally, the Nobel Prize for Peace is given to a person who has distinguished himself in a war or in a battle, not a person who has distinguished himself in a non-international armed conflict. Because in effect, you just have the president fighting the rebels of his government. So if the president wins, it's a forgone conclusion because of his superior war equipment.

He is not bound by any terms or conditions when he delivers the SONA, but generally, it's called state of the nation because that is his report card to the people. So, at best, his report card will be narrative in form. It cannot be triumphalist. He cannot say "I tried because I was able to bring peace," because the kind of peace he will bring will be at best a kind of peace that is in effect an appeasement. You can never have permanent peace by appeasement. We learned that during world wars, in between world wars. Whenever one side appeases the other by saying, well, I'll give whatever he wants because he might even get angrier. Always that will begin the era of persecution until it boils down to war. So, right now, what I hear around me are calls for appeasement, as if peace equals the BBL. That is not so. That is wrong mathematics.

Is the entire peace process unconstitutional?

In my view. I cannot speak for the others, but it is possible that the Supreme Court might see it that way. You know, in the world of foreign relations where I always operated since I was a student, the first time you seat at a negotiating table with the other party there in front of you and you here, the first part of the proceedings is always the exhibition of your credentials or exchange of credentials. Here is my power to negotiate with you, show me your own power, so that we can start on the proper legal footing. That was not done in this case. It would have provoked a lot of comments, most of them critical from the media itself.

Will you submit a committee report on the BBL even if you think it is unconstitutional?

Yes, of course, because it's my job. You mean as a senator and chair of the [committee on constitutional amendments]? Yes, of course, I will submit a report. And I will be happy to note that some of the most respected and distinguished authorities in international law during our hearing were against the BBL for these precise legal reasons, for these constitutional reasons. They were not expressing personal sentiments, they were citing in effect long histories of constitutional principles. The Constitution is nothing but a series of constitutional principles. We chose which principles we want to adopt for our country, and that became the Philippine constitution, but the moment we ratified that Constitution, it became engraved in stone. You cannot change it anymore.

Should the BBL be scrapped altogether in spite of the negotiations?

Well, in my personal view, it would be best if it started the process all over again. First of all, let us find out from the Senate whether it is willing to grant powers to the president to negotiate a separate form of government without specifying a substate. And if so, what form of government? Meaning to say, we'll simply copy the Constitution which stops at regional autonomy. So in effect you are telling the president that you are limited to what the Constitution says. You cannot go beyond that.

But since events have already taken place, it would be best if Malacañang form its own review committee to review the BBL for unconstitutional features instead of letting other branches of government do it for them. The worst branch of government to intervene for this purpose is the judiciary because it has the power to enforce its decision. In the Senate, we merely express our opinions, but they're just expressions of how we read the Constitution. Once it reaches the judicial branch of the government, it becomes compulsory. So, it is better if Malacañang would just do that itself, not wait, for example, for the Senate to manifest, maybe by means of a resolution, what should be the proper procedure.

Why does not Malacañang just take it on himself? To appoint for example those luminaries who I invited to my hearing on the constitutionality of the BBL, so that they can form a review committee. If there are changes to be made, it will come from the palace itself. There would be no embarrassment about being dictated to by another branch of the government. After all, remember, we have a system of checks and balances. The main aggravating circumstance is the executive branch did not bother to look at itself, to examine itself whether it had that power or not. It just presumed that it did.

Like Malacañang, should the MILF also seek Senate approval before negotiating with the government?

That is what I am saying, I've been saying all along. In the case of treaties, that is a clear provision of the Constitution. First, the treaty is negotiated then the Philippines signs a treaty or becomes a party of the treaty and the president ratifies the treaty. That is found in the Constitution. But then he sends the treaty to the Senate, so that the senate can concur in the ratification. That is the correct phraseology. The Senate does not ratify. The president ratifies, the Senate concurs in the ratification. That means therefore, when the constitution is speaking in this manner, what the constitution is saying is that in terms of foreign policy, the president must take care to secure the concurrence of the Senate.

So, it was not feasible under those provisions for the president to just go out of the Palace and proclaim that he had formed a peace panel without informing us thoroughly whathis instructions to the panel were. Normally, when you have these panels, you also at the same time tell the media what are the conditions within which they can negotiate. You cannot say they can just negotiate anything. They cannot negotiate beyond our Constitution. Even at this late stage when we already have the BBL already passing its processes in the Congress, we have no power to change the Constitution. It is absolutely ridiculous; it's a stinker in constitutional law for another party in a non-international armed conflict to insist that certain constitutional provisions must be negotiated.

That is the height of hallucination. Nananaginip sila na i-negotiate natin 'yung mga constitutional provision natin. Eh kung sila nga, hindi sila sigurado kung talagang tunay silang nagkakatawan ng mga Muslims sa Bangsamoro. Away-away nga sila diyan, eh. Kaya I predict the moment that that law is passed, and I'm against it, kaagad mag-aaway lahat ng splinter groups in the Muslim community. Mag-aaway 'yan sigurado. Armed violence will immediately ensue among themselves. Wala silang process katulad ng sinasabi ko na between Malacañang and the Senate. Wala din silang proseso on who will be the true representatives of the Bangsamoro or how they will coordinate with each other. 'Yan ang problema nila.

On house arrest for Enrile:

Una, where is the due process and equal protection? The Constitution is based on two great principles. May ituturo ako sa inyo, ha. Basta may constitutional problem, kaagad sabihin mo, due process of law, o kaya equal protection of the law. Dalawa lang, 'yun lang. does it violate due process of law? Does it comply with equal protection of the law? Dalawa lang sabihin mo, mukha ka nang authority niyan. The whole constitution provides only for due process and equal protection, no other thing. As long as you have these two sentences, you can have a Constitution.

Ngayon, equal protection of the law requires that although people are by nature unequal, the law must treat them equally. That is what it means. The law must treat every person equally. There is something faulty about that logic, but never mind, that is the current state of affairs. The law must treat every person similarly situated in the same manner. Otherwise, the action is unconstitutional.

Ngayon, may problema agad tayo. Bakit si President Gloria Arroyo, former president of the Philippines, bakit bibigyan siya ng hospital arrest, samantalang si Enrile bibigyan ng house arrest, at former senate president lang siya. That's already a violation of what? Answer my question. It violates what? Equal protection of the laws. See? Constitutional scholars na kayo. Hindi equal protection 'yan under the law.

Plus, let us deal more deeply in this equal protection principle. Now what about age? Are we going to take it into consideration, how many people of this age have died in jail waiting for these appeals to be decided? Why are we making an exception for him? If we want persons of that age to stay out of jail, let us have a law. That is the procedure.

Don't ask for an exception for one person in a democracy. You ask for a law that will make it possible to attain certain conditions for everybody who falls under the requirements of the law. That is due process of law. Basta nag-comply ka sa requirements, you fall automatically. So it is verboten, it is completely prohibited for the law to seek special treatment just for one person alone, no matter how ill he might be, unless he is at the point of death, and after that, he would have to return from where he came from.

Ano ang ibig niyang sabihin? Basta may lagnat siya, may pneumonia siya? We all know that pneumonia has very tricky aspects. It mimics colds. Kung ubuhin ka pala, pwede ka nang ma-house arrest? Eh di umubo ka nang umubo.

What I'm saying is that it does not meet the threshold of a possible threat to the life of a person, because every person is entitled to life. But not in that sense. You are trivializing the constitutional principle, if you are going to argue that his right to life includes his right to be taken away from the proper correctional facility where he is being held.

This is a no-brainer, this question on whether he should be given this kind of treatment. That's why his jailkeeper has been demoted and is now facing charges. Maliwanag na puro pera lang ang magpapairal. Apparently, there was no proper proof of pneumonia. Otherwise, lahat na lang ng tao sa jails natin magkaka-pneumonia, sigurado ako. When I was a judge, I had a no-postponement policy. I told them, this court will not grant any postponement for any reason except death, and if you claim to die you better be dead because I'll kill you anyway. Ang ginagawa nila para hindi sila mapagalitan or ma-cite under contempt of court, they claim to have diarrhea. So when I was a judge, I was surprised at the extent of diarrhea in the Philippines, at least in Metro Manila. Lahat na lang sila may diarrhea, ang testigo, ang abogado, ang party to the case. Kaya magiging ganoon na yun. If we allow this, lahat na lang ng matatanda sa kulungan magkaka-pneumonia. There will be an epidemic of pneumonia.

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