February 27, 2017
Excerpts from the interview with Senate President Pro-Tempore Franklin M. Drilon
Q: On allegations that LP is plotting to destabilize the government
SFMD: We have no capability to topple this government. In fact as former President Aquino said, we are offering to help. I repeat, wala po kaming kakayahan. We have no capacity to stage any destabilization and we will not.
Q: Can the Senate do anything on the case of Senator De Lima?
SFMD: No. The Senate cannot do anything. Senator De Lima can continue to perform her functions as senator of the land except to vote. In other words she can still file bills and conduct committee hearings. What she cannot do is vote because voting requires presence.
Q: What actions can she still take?
SFMD: If the custodial would allow her she can conduct public hearings.
Q: What will her camp be doing today?
SFMD: We were informed yesterday that her lawyers will file 10am today a petition with the Supreme Court which will, in effect, question the jurisdiction of the DOJ to investigate and the jurisdiction of the regular courts to hear the case. In the Supreme Court, there have been decisions which say that the Ombudsman has the power to prosecute not only graft cases within the jurisdiction of the Sandiganbayan but also those cognizable by the regular courts. As early as the case of the Ombudsman v. Enoc, it said that the power of the Ombudsman is plenary.
Q: Senator De Lima claimed that since she was salary grade 27 as secretary of justice, only the Ombudsman can investigate her? Is that what you believe?
SFMD: That's only one argument. The other argument has ruled that under the charter of the Ombudsman and under the Constitution, the power of the Ombudsman is unqualified and whether the case is cognizable in the Sandiganbayan or the regular courts, the investigation must be done by the Ombudsman and no the Department of Justice.
Q: How do the cases of then former Pres. Arroyo, Cong. Jalosjos, the Ampatuans differ from the case of Senator De Lima?
SFMD: In all those cases they did not allegedly use their office. In other words, regardless of their positions the crime was allegedly committed.
Q: Electoral sabotage by ex-PGMA?
SFMD: The case of electoral sabotage, by the Constitution and the Omnibus Election Code, should be with the regional trial courts (RTCs). Under the Constitution and the election code, it should be prosecuted by the Comelec and tried by the RTCs. In the case the Ampatuan, the killing was not intimately related to his office and he could have allegedly committed the crime whether or not he was a governor. The same in the case of Jalolos, he was charged with rape. He could have committed the rape regardless of whether or not he was a congressman.
In the case of Senator De Lima, even in the information that was filed in court it says "De Lima with the use of her power, position and authority demanded, solicited, extorted money from high profile inmates of the New Bilibid Prison." In other words, if she were not the secretary of justice, if she had no direct supervision over the NBP, she could not have committed the crime, according to the prosecution.
Q: That's interesting. That's why it differs from the other cases.
SFMD: The fact that it is alleged that it is because of the position of De Lima as secretary of justice, having supervision over the inmates and the NBP, that she was able to allegedly commit the crime, which is not in the case of Jalosjos. It should be the Ombudsman because the power of the Ombudsman is plenary and unqualified. Where the law does not make any distinction as to whether you use your office or not, as long as you're a public official it should be the Ombudsman. It is the Ombudsman that will determine whether or not you used your office and whether or not the crime is related to your office, it goes either to the Sandiganbayan or in the regular courts. If it's not intimately related to your office such as rape or murder, that goes to the regular courts. But if it is intimately related to your office such as in the case of Senator De Lima, where she was alleged as having conspired, she could not have done that except for the fact that she was the secretary of justice.
Q: Give us the process, the Supreme Court will decide in how many days?
SFMD: I do not know. I have not seen the petition, but I'm sure that one of the prayers is to ask for a temporary restraining order (TRO) so that the proceedings in the RTC could not continue unless these issues are settled first.
Q: If the court grants the TRO, the DOJ will have no right to ask for a motion?
SFMD: They can. But once a TRO is issued the RTC cannot proceed with the trial until the SC has decided on the case.
Q: In case the SC grants the TRO in favor of Senator De Lima, does this mean that she will be immediately released? That arrest warrant was void?
SFMD: That's correct. But not because the arrest warrant was void but because the arrest warrant cannot be implemented in the meantime until the SC has decided on the case.
Q: You said the Senate couldn't do anything about it. Will the Liberal Party do anything about it?
SFMD: We will provide support. But principally this is a legal issue, the lawyers of Senator De Lima will be in the forefront.
Q: Do you see this as political harassment?
SFMD: It cannot be avoided. The perception that this is a political harassment cannot be avoided. From the perception of people the DOJ is not impartial, because of what transpired. Perception is very important because the DOJ is one of the five pillars of our criminal justice system and people must maintain confidence in our justice system, for it is the foundation of our democracy. If the confidence in our justice system is lost, we'll be in trouble. It is where I think the DOJ should have sat back and thought about this.
Q: If perception is important, then why did the CA confirm immediately the appointment of Sec. Aguirre?
SFMD: I'm sorry I was not able to attend the hearing. But again what I'm saying is perception if very important. Secretary Aguirre is no ordinary secretary. Oppositions were raised. Senator Trillanes raised an opposition. But the greater of the 25-man CA composed by the Senate and the House of Representatives said that you could be confirmed.
Q: Secretary Panelo said this is karma...
SFMD: As a lawyer and former secretary of justice I would rather limit myself to commenting on the legal issues. Pasensiya na. In this particular case it is a very real issue of jurisdiction.
Q: Do you believe she's innocent?
SFMD: When you have convicts as your witnesses, the credibility of this will certainly be open to questions. They have every to gain by what they have stated. In a trial, you will assess the evidence submitted. In this case, these are all verbal there is no one gram, 10 grams or one kilo of shabu presented.
Q: Or money trail?
SFMD: Or money trail. The acts allegedly committed were testified to by the convicts whose credibility is open to questions.
On Secretary Yasay
SFMD: The question raised is, is he American, is he a Filipino, or is he stateless? He's the secretary of foreign affairs. This is a very serious question on his qualifications, which the CA has the duty to inquire into.
Q: When did he renounce it ?
SFMD: But according to the laws of the United States, the effective renunciation was one June 28, 2016, two days before he assumed office.
SFMD: Because under the American law - and the American law here is controlling - the act of renunciation should be done before an American consul.
Q: In 1993, where did he renounce?
SFMD: According to the papers, he sent it to an official of the immigration in New Jersey, not before the American consul. that is why among the documents in the internets is the certification by the US embassy in Manila, which says that the lost of nationality is on June 28, 2016.
Q: This would mean that according to the US, while Sec. Yasay was working with former Pres. Estrada under the SEC, as far as the US government was concerned he is an American citizen?
SFMD: That's correct. It is the US laws, which would govern who are the citizens of the USA. Certainly the Philippines laws cannot say who are the American citizens.
Q: Under the law, can you be a cabinet secretary if you are a dual citizen?
SFMD: No. I wrote the Dual Citizenship Act and this was effective in 2003. It is very specific in that law that no elective or appointive official can hold office unless he executes an affidavit of renunciation. In other words, he should renounce his foreign citizenship before he can assume the position in government, because dual allegiance is absolutely prohibited. Once you assume public office, or even before you assume public office, you must effectively renounce you foreign citizenship, and take your oath as a Filipino citizen.
Q: Sec. Yasay might be thinking that he had already renounced his foreign citizenship even before he became foreign secretary. But the question is why did he do it twice...
SFMD: I want to emphasize that even assuming that he renounced effectively it in 1993, although American law says he renounced it in 2016, the question is, did he reacquire his Philippine citizenship?
Q: How should you do that?
SFMD: When she took his oath as American citizen in 1986, he lost his Philippine citizenship by virtue of Commonwealth Act 63, if I'm not mistaken, because under the law then, before we amended the law, automatically you lose your Filipino citizenship when you take your oath as a foreign national. How do you recover it under the old law is that you to go to the process of naturalization. That is why I wrote the Dual Citizenship Act so that you can reacquire your Philippine citizenship by simply going to the Bureau of Immigration and assert you would want o be a dual citizen by recovering your Filipino citizenship. But again there has to be an oath that you must take to reassert your allegiance to the Philippine flag.
Q: You're saying that Sec. Yasay did not take that oath, did not reacquire?
SFMD: It does not show in the records.
Q: What is his citizenship? Is he really stateless?
SFMD: Good question, because he lost his Philippine citizenship when he took his oath as an American in 1986. Did he reacquire it? I do not know because nothing is in the record. But if it was before 2003 that he asserts that he reacquired it, it must be through a naturalization process, file a petition in court to reacquire your Philippine citizenship. If it as in 2003, then he avails of the Dual Citizenship Act by again taking his oath as a Filipino. These are questions of fact to which I have no answer.
Q: If it were proven that Sec. Yasay did not reacquire his Philippine citizenship, would you confirm him as foreign affairs secretary?
SFMD: Assuming that he did not, I have my real serious misgivings about his qualifications.
Q: When he held the SEC position, can he be brought to SEC for that?
SFMD: Again I did not think about that. According to the reports today it can be a usurpation of public functions, because he discharged public functions. The crucial issue is when he executed his affidavit, was that an effective renunciation of foreign citizenship and did he reacquire his Filipino citizenship. Those are the issues.
Q: Should he resign instead of going through the process?
SFMD: Let's see how the CA confirmation will go because there are many questions of facts that he must answer.
Q: Considering that he's handling issues on diplomacies especially with China, US...
SFMD: His position is very crucial. At this particular stage of our history, the position of the foreign affairs secretary is very critical because of the South China Sea issue and our relationship with two super powers, China and US. His position is very critical to our national interest because of the circumstances today. We want him to be a strong secretary, because he has to face up to China because of the SEA issue...At this point we would want, from where I sit I want Secretary Yasay to be strong, to be able to assert and defend our national interest.
Q: How does someone get confirmed in the CA? Is it majority rules?
SFMD: It is majority rules, because the Committee on Foreign Relations, headed by Senator Lacson, must recommend to the plenary the confirmation or disapproval of Sec. Yasay.
Q: If it's a majority, what objectivity can we expect? The Malacanang controls the House...
SFMD: I have faith in the ability of our congressmen to look at the situation objectively.
Q: On another issue, Sec. Gina Lopez...
SFMD: I will vote for her.
Q: On Lascnas, clearly he lied under oath...
SFMD: If he lied under oath, what is the truth? The allegations that he lied when he when he first appeared in 2016, we want to know the truth. There were 11 senators who voted in the Senate to allow him to testify.
Q: What do you do now?
SFMD: The referral has been made on the Committee on Public Order and Illegal Drugs and the Senate made that referral. The motion to reconsider that referral expired last Wednesday. It is not in the court of the committee of Senator Lacson and it is up to Senator Lacson when he will hear it.
Q: Do you think that in the end that justice will be served fairly for Senator De Lima?
SFMD: I have confidence in our justice system. Senator De Lima has submitted herself to our justice system by raising this to the Supreme Court. I am confident that the SC will uphold the rule of law. It is within their authority to interpret the rule of law.
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