Press Release
February 20, 2014

Transcript of Sen. Santiago's interview

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 eh, 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 submut 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. 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.

Dapat po ba i-delete ang online libel tulad ng i-finile ni Cong. Antonio Tinio?

That would be optimum; that would be the best thing to do, but I think that in a motion for reconsideration, the Supreme Court will merely decriminalize it because that is the international trend today. Various states in the world have already passed legislation on their respective penal codes decriminalizing the statute. That means to say, if you have proven to be guilty of libel, you no longer have to go to jail, but you have to pay damages to the person who has been injured. Basically, the standard of proof has already been lowered significantly because before to prove libel you had to prove proof beyond reasonable doubt, which is very difficult to pass, but if it is a civil case, all you have to prove is a preponderance of evidence. So it is now easier to punish a person a person for libel except that you cannot send him to jail. It is now easier to get money from him to pay you damages for what you have suffered. In effect, therefore, if you just leave the Supreme Court ruling alone, what will happen is, number one, there will be extreme difficulty in law enforcement, and if you cannot enforce a law, you had better strike it off the records because it promotes contempt for the law. Number two, it will add to the burgeoning prison population of this country. We're spending taxpayers' money to sustain these prisoners, and then you add more people to populate the prisons because of libel. I have already started with what I consider the primary legal arguments against libel, but in addition, you have this question of practicality. Is it practical? How many people will you be sending? How many people are using the internet everyday, day-to-day? Both of the grounds of legal technicalities as I said: void for vagueness doctrine, overbreadth doctrine, which are technicalities in law, plus the mere fact that the law is worded in this manner: no law shall be passed abridging the freedom of speech. In case of doubt, the law must be resolved in favor of freedom and against restriction. That is the meaning of that wording. Otherwise, there is no reason why our framers would have used that kind of terminology and would have placed it as section 1 of the bill of rights.

In all, I just think it was a bad idea for the Supreme Court to look at the internet as another form of publication. It is not another form! It is not like radio, tv, or print. It is a completely different concept imported from cyberspace and you have to acquaint yourself with the power of the internet and the way that it regulates its own dynamics. Someone calls you names, then you call him names, too. And all the rest will fill in with their own opinions. That is the basic idea of the marketplace of ideas, which has been so emphasized by one of the most famous justices of the Supreme Court, Justice Oliver Wendell Holmes, Jr. We should let ideas join the marketplace of ideas so that people can filter in the marketplace what is good or bad. And if you limit the conversation to what you think is the proper subject of civil discourse, then in that sense, you are limiting the people's right to express themselves. Remember that revolutions all around the globe covering all the continents of our planet, mainly arose because the monarch or the executive insisted on denying the people their right to free speech. If you go back to the days of the French revolution, for example, you begin to realize that this should have been handled more gently by the Supreme Court and not dismissed as another form of publication.

Ma,am to clarify, iyung options po ay pagfile ng motion for reconsideration sa Supreme Court pero ang pag-file ng decriminalization ay sa Congress?

Yes, that is correct.

As a lawyer, I have no hesitation. I support fully a motion for reconsideration to reconsider the ruling with respect to online libel and then, with respect to congressional action, I have already filed my bill, so because of this eventuality that we did not foresee, I will now redouble my efforts, as I've said to convince the chair of the committee, the members of the committee, and eventually, the entire Senate in plenary session, that we have to pass a new law that will in effect overturn the decision of the Supreme Court but only with respect to online libel. We are not talking about other cybercrimes like prostitution, cybersex, etc.

So since may ruling na ang Supreme Court, the netizens have to follow muna habang hinahanda nila ang petition?Meron po ba silang puwedeng gawin?

You can stage protests, mass demonstrations, and so on.

Online ma'am? Without facing risks from the libel suit?

No, your risk would be facing contempt from the Supreme Court. If you review the decisions of the Supreme Court, if you call other agencies names, the Supreme Court will say, "We uphold freedom of speech." If you call the Supreme Court names, the Supreme Court will say, "We hold you in contempt." That is the risk you will run.

On DAP funds received duing Corona impeachment

Were you aware of such dealings or offers?

No! I was not aware of it at all! I had no inkling! Certain senators like me had no inkling that this was taking place. Now they are arguing whether it was given before, during or after the impeachment. That is not the test for whether there has been bribery. The test for bribery is this: whether the amount given--whether before, during or after that time--whether that amount was sufficient for that person to change his mind. That is the test for bribery. So, you have to ask yourself, was the amount sufficient to make the senator change his mind? The test for bribery is this: whether the amount given--whether before, during, or after, with time as an irrelevant element there--whether that amount is sufficient to make that person change his mind. That is the test for bribery. So you have to ask yourself "Was this amount sufficient to make a senator change his mind?" For example, it is a basket of mangoes; he's not going to change his mind. But if you gave him Php 50 million, that would change his mind. Senators are notorious for fickleness of mind. You have to understand, therefore that whether it is given before, during, or after is not a valid point. The only point we consider is was it sufficient to make the senator make up his mind, or change his mind if he already made it up, or at least change the perspective from which he is viewing the proceedings of the impeachment trial. We are all required, sitting as trial judges, to keep an open mind, and keep the cold neutrality of an impartial judge. But if that amount is sufficient to remove that cold impartiality, then it is a bribe. Whether it was given before, during, or after, for me it does not matter.

Should the senators have avoided receiving money during the course of the impeachment trial?

Oo. Dapat iwasan na lang nila because, unlike the pork barrel which has been confirmed as legal in no less than three cases... there was no ruling on the DAP because there was no knowledge or information about the DAP at all. That was introduced into our vocabulary only after the impeachment trial. That is the downside to extreme secrecy... lack of transparency. If you just announce beforehand "In addition to the PDAF, we will give the DAP", then we could have already undertaken some investigative procedures on where this DAP is going, and what it was meant for, etc., or what are the legal literature issue by the executive's legal department with respect to how DAP should be spent. In my case, I never knew. I had no clue. I was completely clueless about the DAP while we were struggling with legal technicalities during the impeachment trial. We didn't know that some of us have received money or about to receive money, or were receiving it during those proceedings. The mere fact that there was no notice or information already raises a very red flag against the DAP. Why was it kept so secret? Why couldn't they tell me, for example, or other senators also in the same situation? Why was the information withheld?

Under the equal protection clause, when expenditure of funds is allowed to the legislative branch by the executive branch, there has to be equal protection, meaning to say there has to be equal treatment because we are all similarly situated. We are all members of the legislative branch. If you pick and choose, that is no longer equal protection.

On the case of Sen. Bongbong who voted 'No' in the impeachment trial but received money

First, this is not a class suit, so every person or senator involved or otherwise mentioned as a person of interest in the proceedings concerning the impeachment trial, particularly the financial release of certain funds of government in the vicinity of time during which the impeachment trial was held, that becomes individual liability. So each senator who has been involved so far, although we don't know what degrees of involvement they may have entered into, should be responsible for his own defense. There is no general and there is no generic defense for these people. It cannot be because they received the DAP at a certain time, or that they gave their PDAF to a certain--apparently fictitious--NGOs. Each one must raise his own defense.

If he voted 'No' in the impeachment trial, is Sen. Marcos still liable for bribery?

According to my test, no. Maybe because it was not enough. So bribery also has a certain calculus of its own. Remember what I've said: it must be sufficient to change his mind.

Are you in favor of the proposal from Sen. Sotto for the ethics committee to try the senators involved in the PDAF scam instead of the Blue Ribbon?

No. That was what the Blue Ribbon committee was created for. The ethics committee is just to maintain a certain degree of decorum and good behavior within the Senate. But if you have something as hot as the pork barrel issue involving hundreds of millions and involving a lot of senators, it is best that it should be given to Blue Ribbon. The question there is are the members of the committee required to have the objective neutrality of an impartial judge. Answer: No, because we are not judges of law or justice. You go to a courtroom , the judge is bound, just like the other parties--the lawyers, the prosecutor, the defense counsel--all are bound by the Rules of Court, and you can be very strict there about the laws of evidence. But a Senate hearing is different. It is not a judicial proceeding, and we are not required to have open minds. We can close our minds as fast as we want to because this is a political proceeding. Politics will always intrude. You cannot say "Ah, you are part of the legislative branch, but when you are hearing cases, particularly alleged scandals, you have to keep an open mind." You approach it by preparing yourself with information and you try and tailor your information so that the truth, in your view, will come out. There is no direct or cross-examination rule in these proceedings. You can ask leading questions which are allowed in a court of justice only when it is the turn of the prosecutor to cross-examine the witness against his client; but these rules do not apply. We are conducting an inquiry in aid of legislation. We are trying to find out what are the loopholes in the present system so that we can close these loopholes. So our proceedings are open-ended, meaning to say you can harass the witness, you can bully the witness. There can be no "Objection. Counsel is bullying the witness," which is an objection often heard in a court of law, but not in a proceeding, unless you are going out of bounds by calling him unbearable names, for example, coming from the mouth of a senator would be a very bad example to young people and would project the power of politics to distort information. Otherwise, you can ask any kind of question from any kind of perspective. That is the difference between the judicial and legislative proceeding, and, under the Rules of the Senate, even if the case is pending in court or in any administrative tribunal--that is not a valid reason to stop legislative hearings or investigations. That is one of the provisions in the Rules of the Senate; it has never been taken to court as far as I know. So we have this magnitude for exploring ways to reach the truth. If you protect the witness as you do a court of justice, then it will require infinitely much more time. That is sometimes justice is so slow because there are so many details that the law requires before you convict the person or before you even express any kind of opinion, but in our view here in the Senate, all we want is for the truth to be told about the loopholes. We are always running after these loopholes so that we can file the relevant corresponding legislation. That is why there is a world of difference between a judicial hearing and a legislative hearing.

On Sen. Jinggoy Estrada saying Ruby Tuason approached other senators for their pork barrel funds

There is a direct collision between the testimony of Ms. Ruby Tuason and the statement of Sen. Jinggoy Estrada. I asked Ruby Tuason categorically, "Why didn't you just approach all the 24 senators since you already approached 2?", and she said "No, I did not approach anybody else." Now, Sen. Estrada is saying Ms. Tuason also approached other senators. So there is a direct conflict. You can resolve this conflict only in a court of law, but not in this legislative hearing. There are many procedures that are different in a legislative hearing. Another difference is that we have people who are not trained in the law. Maybe the majority of the senators are not even lawyers, so they have no clue what should be the legal limitations on the way they behave during a legislative hearing. For example, one cardinal rule that has been broken repeatedly during Senate hearings is the first rule of cross examining a hostile witness. Normally you would cross-examine a hostile witness, and during cross-examination you are allowed to ask leading questions. One of the cardinal violations in Senate hearings because of the lack of legal education is that after the witness has said something incriminatory and pointing in the direction to which the senator wants him to go, the Senator wants a categorical answer from the witness, and the witness digs in his heels and completely refuses to oblige the senator. Once you have made your point, stop. If you keep in circling that point, you might give the witness an opportunity to amend his reply in such a way that he gets out of the crisis in which you put her in the first place. After you've done that, you just emphasize that point not during cross examination--this is not television or a novel. You don't emphasize that you've scored a point until after the case has been finished. There are many things that can happen because the senators are not tied to the Rules of Court.

Let me say this for Sen. Jinggoy: We, the public--including myself--never knew about the DAP disbursements until he rose and delivered his privilege speech, implying that the administration has been bribing members of Congress to shape their decisions during the impeachment trial. If he has arcane knowledge that were not known to other people, perhaps we could grant him the benefit of a doubt that there were other senators. I would really like to know who they are in the first place. I'm just curious by nature. Sino kaya itong mga ito? By contraindication, Ms. Tuason is one of the persons who have applied for state witness, so she cannot be expected to give all, but only what she thinks will make the government approve her application for state witness, meaning to say she will be acquitted in the complaint sheet to be filed in the Sandigan. I would say that I would tend to place my presumption on Sen. Estrada. I wish he would do it as soon as possible.

Should Sen. Estrada just name names?

Yes because it places us all in a cloud, and it is not fair to those who are not implicated. And it also will prove he is in good faith when he makes statements like this, when he makes general statements and then backs them up with specific details. It will improve his credibility.

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