Press Release
January 26, 2010

Senator Miriam Defensor Santiago

Mr. President, distinguished colleagues:

It is with the utmost reluctance and with a profound sense of weariness that I compel myself to deliver this co-sponsorship speech, which was apparently assigned to me late last night. I have to say that yesterday's proceedings did not constitute the brightest moment of the Philippine Senate. Our language and behavior did not serve the nation.

Since we are a government of laws and not of men, let me begin with the Rules of the Senate. Rule 11 is entitled "Meetings and Reports of the Committee." Section 24 provides: "The report must be approved by majority of the regular and ex-officio members thereof . . . A regular member of the committee . . . shall be precluded from opposing the same, unless he enters his objection thereto, or files with the Secretary of the Senate his dissenting vote . . ."

It is clear under this provision that since the report has been approved by a majority of the Senate sitting as a Committee of the Whole on Ethics, then the chair has a mandate to report it out on the floor. It is also clear under this provision that as oppositors, my colleagues and I are mandated to file our objection, which we have done through Resolution No. 1472.

Let us continue our examination of the Rules of the Senate. Rule 34 is entitled "Unparliamentary acts and language." Under this Rule, we find the following provisions: "Sec. 93. Acts and language which offend a senator or any public institution shall be deemed unparliamentary." Under Section 93, it is implicit that the parliamentary immunity of a senator can include any manner of language against any person or any agency, except a senator or any public institution. In short, the Rules of the Senate categorically frowns on senators calling each other names, and hurling so-called "fighting words" at each other.

This provision follows: "Section 94. No Senator under any circumstances shall use offensive or improper language against another senator or against any public institution." Yesterday, when questioned by the Senate media on how many votes are needed to adopt the committee report, I expressed the view that two-thirds of the Senate, or 16 senators, would be needed. In today's Inquirer I find this paragraph: "Enrile countered that 'these so-called experts have not read the precedents in the country and in the US .'" Thus, without any provocation, I have been insulted.

In itself that already was unparliamentary behavior. And there goes the hope that we in this chamber - I now hesitate to call it august - could debate the issue in a civilized manner. I would have wanted to say that this chamber is beset by an honest difference of opinion. But if this is the kind of hostile, belligerent attitude we bring to our debate, then all of us should resign immediately, because we do not deserve to be senators.

Since we now operate under a democracy and not under martial law, allow me to set modesty aside, and in self-defense, to identify myself as the RTC judge who upheld free speech and the right to bail even at the very height of the oppressive powers of martial law. I refer to the celebrated case involving some 50 students from UP and Ateneo, who severely criticized the First Lady at a rally, and were promptly thrown in jail.

I have always been polite in expressing a legal opinion contrary to those of my colleagues. But I certainly will not countenance any senator insulting me, just because my opinion happens to be different from his. For, as the great Justice Oliver Wendell Holmes, Jr. said in his dissenting opinion in Abrams v. United States, 250 US 616 (1919):

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is a power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.

The Rules of the Senate provides: "Section 97. Upon the recommendation of the Committee on Ethics and Privileges, the Senate may punish any Member for disorderly behavior and, with the concurrence of two-thirds (2/3) of the entire membership, suspend or expel a Member. A penalty of suspension shall not exceed sixty (60) calendar days."

The threshold question is whether censure and restitution of some P6 billion combined, constitute such behavior as to require two-thirds vote of the entire membership. My humble answer is "Yes." It appears that Section 97 distinguishes between two classes of offenses: (1) mere disorderly behavior; and (2) heinous behavior, such as to call for suspension or expulsion. But what about behavior that is more than disorderly, but less than heinous? The Senate Rules does not provide for this entire spectrum of offenses. Thus, we can say that there is a genuine gray area, or a lacuna, in the law. It is our duty, as senators, to fill this gap in our own rules.

To be able to resolve the case, we have to confront the next issue: What standard of proof is set under the Rules of the Senate? My submission is that the standard of proof should not be mere credible substantial evidence. Parenthetically, credible substantial evidence is a tautology. If something is substantial, then it is credible. There is no such thing as incredible substantial evidence. This standard is even lower than the standard of proof in civil cases, which is "preponderance of evidence." My submission is that we should apply the standard of proof in a criminal case, which is "proof beyond reasonable doubt." We should not suspend or expel a senator on mere "credible substantial evidence," because that would be tantamount to capital punishment.

We in the Senate have broken rank, according to our political affiliations. The respondent is a presidential candidate. The present Senate President took over from respondent after a reorganization, because the rest of the presidential candidates in this chamber wanted to cut him down to size. This is the dynamics of politics.

Now that there is talk of another reorganization, why should the Senate President not emulate his predecessor by facing the prospect with equanimity and, if necessary, leaving the position with grace? There is no need to heap coals of vitriol over the heads of those who do not agree with the Senate President. I have been acting under the belief that after all, we are still under a democractic system of laws, and not under an authoritarian martial law system where even senators are denied the right of free expression.

I respectfully disagree with the committee report that the standard of proof - on which the Senate Rules are silent - should merely be "credible substantial evidence." The question posed is whether the penalty sought to be imposed is better assimilated to disorderly behavior; or is better assimilated to suspension or expulsion. And this issue is being ventilated in a very highly politicized environment. Assuming for the sake of argument, that disorderly behavior calls for mere majority vote, none of us can honestly say that censure, which is a blot on a senator's political record; coupled with restitution of P6 billion, both constitute mere disorderly behavior.

Since I do not want to be a participant in an unseemly proceeding, I refuse to accept any interpellation. I am scheduled to sponsor and defend three urgent treaties that the DFA has been pressuring me to introduce in our agenda in the last few days that we have left. Because of the conflict situation in our hall, I am now very tired of politics, and will walk out of this hall.

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