IMPROVING THE RH MILIEU; AND
THE CURIOUS CASE OF THE TACITURN VICE-PRESIDENT
By
SENATOR MIRIAM DEFENSOR SANTIAGO
(Keynote speech at the Women's Celebration of Life and Faith Convention sponsored by the Catholics for Reproductive Health, on 15 October 2014, at the Philippine Christian University, Taft Avenue, Manila.)

A. Improving the RH Milieu

The Reproductive Health Law is no less than a minor miracle. It served to inflame passions all over the country for 12 long years, during which it was debated furiously in the Congress. But finally, in December 2012, not without a violent fight, Congress passed it and the President signed it into law.

Yet, now that we have the long-wished-for RH law, we find that implementing it does not come easily. Implementation of the RH law is marked with defects in both the substance of the law, and in the procedure by which it is implemented.

Let me begin with the substantive defects.

The heaviest substantive defects of the RH law are products of the sorry state of our bureaucracy. There is an appalling lack of adequate skilled health personnel in many local government units. The services and the service delivery standards of RH in general are not uniform throughout the country. The poor people are unable to afford reproductive health care and most deleterious of all, the budget and logistics for RH are inadequate in many local government units.

One bright note that I need to mention is that last May 2014, the Department of Health launched the "Kalusugan Pangkalahatan Road show" or "DOH on Wheels." In the next two years, it plans to mobilize 11,000 nurses and 5,000 midwives, and to cover the most inaccessible places in all the regions. As part of its broad mission, the program will deliver basic health services that will include RH education for adolescents, and family planning.

Another substantive defect of the RH law arose after the Supreme Court upheld it. It is unfortunate that the decision upholds the grant to health providers - whether public or private - the freedom not only to refuse patients, but to refuse to refer non-emergency cases. This is the "conscientious objection" privilege. In reality it means right of the patient to health information and autonomy is made subservient. This right of the patient is subservient to the right of the health provider, not only to refuse patients, but also to refuse to refer non-emergency cases.

The third substantive defect is that the decision gives religious hospitals and private hospitals the right to object, refuse, and not refer non-emergency patients. This is called the "institutional conscience" privilege.

I have identified the three main substantive defects in the law. Now, let me go on to identify the procedural defects in the implementation of the law.

• The first procedural defect is that the law as passed by Congress limits the reproductive health mandate only to the public sector, leaving the private sector alone and unencumbered by any duties. But the mandate on local government units is watered down by the provision that implementation of the RH law will be the primary duty of the Department of Health. Thus, it is the duty of the health department - and not the local government unit - to hire skilled birth attendants, deploy mobile RH vehicles, provide RH supplies and honoraria to barangay health workers, and to procure and distribute family planning supplies.

• The second procedural defect of the RH law is that minors are denied access to family planning services, unless they first obtain parental consent. The only other exception is, if they are already parents or if a young girl had previously suffered miscarriage.

• The third procedural defect is that the RH law as interpreted by the Supreme Court decision allows health providers to require spousal consent for surgical RH procedures like tubal litigation. This is a throwback to the old gender-biased system of discrimination against women.

• The fourth procedural defect is the interpretation by the Supreme Court that minors can avail of family planning services only with parental consent regardless, and I repeat, regardless of how many children or miscarriages the minor has had. I respectfully submit that the result is an absurdity.

At 12, a minor can have sex with the consenting partner, and is immune from a charge of statutory rape. At 16, a minor can drive a vehicle with a student driver's license. At 15, a minor can legally work. But none of these minors can avail of family planning without the consent of their parents!

• The fifth procedural defect is that under the Supreme Court decision, the Food and Drug Administration must first certify and then allow only those contraceptives that do not have any abortion effect, meaning that the contraceptive should not have any effect on the fertilized egg. With the same humility, I beg leave to point out that this also has a ridiculous effect.

The so-called "abortion effect" is not associated with contraceptives. In the field of medicine, the abortion effect is more associated with such common medication as antibiotics, anti-malarials, pain relievers, antihypertensive, anti-clotting, and many other medicines. Thus, the extra test for the abortion effect is meaningless. It might even violate the Equal Protection Clause of the Constitution because among all medications, it discriminates only against contraceptives. We are still waiting for the FDA certified list of contraceptives.

B. The Curious Case of the Taciturn Vice-President

In the cascade of corruption cases that have fallen on the heads of the hapless Filipino people, the most spectacular are the plunder and allied charges against Vice-President Jejomar Binay. I repeat what I said recently, that while he enjoys the presumption of innocence, this does not mean that you and I are required to suspend judgment until a final decision is promulgated by the court. The presumption of innocence means only that it is the prosecution which bears the burden of proof. Once the prosecution has presented evidence, then it becomes the obligation of the respondent to present his evidence. After hearing both sides, then the tribunal makes a decision based on the evidence.

In this case, the VP - I shall call him VP in this speech - has been accused by his former subordinate of plunder and similar cases against public interest. The star witness of the prosecution has testified many times in the Senate public hearing. But the VP refuses to appear, on the claim that the senators mainly conducting the investigation have prejudged the case against him. Assuming that senators are already convinced that he is guilty, still Binay cannot evade the jurisdiction of the Senate.

No less than the Constitution provides for the power of the Senate to conduct inquiries in aid of legislation. If the VP has truth to tell, what is he afraid of? His tormentors cannot use the Senate hearing to humiliate or otherwise prosecute him, because the Constitution requires senators to respect "the rights of persons appearing in, or affected, by such inquiries." Hence, I do not approve of this curious tendency to be so taciturn, in the face of such damaging charges against his moral character.

As a lawyer, my main source of authority is always the Constitution and the decisions by the Supreme Court. In the 2009 case of Dela Paz v. Senate Committee on Foreign Relations, where incidentally I was, as I still am, the Chair of the Senate Committee on Foreign Relations, the Supreme Court upheld the Senate Rules which authorize the Blue Ribbon Committee and other Senate committees to conduct investigation on all matters relating to misbehavior by officers in all government branches. This power to conduct public hearing covers "any matter of public interest on its own initiative or brought to its attention by any of its members."

But the most important ratio decidendi or case law laid down by the Supreme Court is this quotation from the old case of Morero v. Bocar: "This provision has been traditionally construed as a grant of full discretionary authority to the Houses of Congress in the formulation, adoption and promulgation of its own rules. As such, the exercise of this power is generally exempted from judicial supervision and interference, except on a clear showing of such arbitrary and improvident use of the power as will constitute a denial of due process."

In the 2003 case of Senate Blue Ribbon Committee v. Majaducon the Supreme Court merely quoted the Constitution, Article 6, Section 21, and logically upheld the authority of the Senate committees to conduct inquiries in aid of legislation.

Binay appears to be content in defending himself by delivering speeches accusing his enemies of lying. That is not sufficient. He must present his own evidence because, if he continues to keep silent in the Senate hearing, then I will have to cite the 2002 case of Bertulfo v. Nuñez as well as other previous cases. The respondent was accused of gross dishonesty. Although ordered repeatedly by the court to submit his comment or explanation, respondent just kept silent. Hence, the Supreme Court said: "To us, respondent is not at all interested in clearing his name or simply has nothing to say in his defense."

And then the Supreme Court went on to quote the famous 1998 case of Grefaldeo v. Judge Lacson, as follows:

"The natural instinct of man compels him to resist an unfounded claim or imputation and defend himself. It is totally against our human nature to just remain reticent and say nothing in the face of false accusations. Hence, silence in such cases is almost always construed as implied admission of the truth. . . . Silence gives consent."

The initial accusation against Binay was that as Makati City mayor, he entered into a conspiracy to overprice government projects such as the Makati City Hall 2 parking building. When the COA commissioner testified on the overpricing, Binay defended himself by saying that the items compared to the items used in the controversial building were not similar. That is a vague defense. If the public bidding process was rigged, it was easy to overprice, but similarly it is easy for the auditor to determine whether the price is reasonable, by conducting a canvass, making use of price references which are provided by, among others, legitimate suppliers, and certain government agencies assigned to procurement, as well as those posted in the internet.

And yet, he accuses the COA commissioner of failure to produce acceptable canvass sheets and price quotations. This kind of defense can be easily demolished, if COA is given the power to compel the suppliers to sign the canvass sheets which can be used as basis for an investigation of alleged overpricing. If the supplier refuses to sign, then COA should be given the power to recommend that the supplier should be blacklisted by the Government Procurement Policy Board from participating in future government biddings.

Further, perhaps it is time to revive the defunct Price Evaluation Board to monitor prevailing market prices and issue a report of the rates for materials, supplies, and equipment. After full recovery from cancer, I plan to file a bill to this effect. In the meantime, there is a line of cases where the Supreme Court upheld the special audit reports of the COA.

Perhaps the most dramatic bombshell lobbed by the camp of former Makati vice-mayor Ernesto Mercado against Binay is that he owns a P1.2 B estate in Rosario, Batangas. This allegation refers to a 350-hectare agricultural estate in Barangay Maligaya, Rosario town, Batangas, which contains a piggery, a flower orchard, and a cock farm. Apparently owned by a corporation, its shareholders are reportedly dummies of Binay.

If this is the defense, then regular techniques of investigating dummy status should be applied. In law, the term "dummy" refers to one who purchases property and holds legal title for another, usually to conceal the identity of the true owner. A "dummy corporation" is a corporation formed for sham purposes and not for the conduct of legitimate business. In other words, a dummy corporation is formed for the sole reason of avoiding personal liability, particularly the declaration of assets in the Statement of Assets Liabilities and Networth, or SALN.

Although we have an anti-dummy law, it refers to aliens only. The charge of using dummies is criminalized by the following laws:

• PCGG Law, aka Executive Order No. 14-A, particularly its Rules and Regulations which define ill-gotten wealth as those acquired through dummies and others

• R.A. No. 1379, or the Forfeiture Law

• R.A. No. 7080, or the Anti-Plunder Law. Ill-gotten wealth embraces the crimes of malversation of public funds, receiving kickbacks, or as stated in the PCGG Rules and Regulations, Sec. 1, para. (a), subpara. (5):

"(5): Through the establishment of agricultural, industrial or commercial monopolies or other combination and/or by the issuance, promulgation and/or implementation of decrees and orders intended to benefit particular persons or special interests."

Finally, the latest attack missiles launched by Mercado versus Binay is that at least P4 B from 10 infrastructure projects between 1999 and 2014 went to city officials as kickbacks. "Some 28% from every project was shared by the mayor down to the lowest official in the web who is involved in the conspiracy," Mercado allegedly said in a newspaper interview. Mercado specified that from the kickback of 28%, Binay allegedly kept 13%.

With all of these accusations aired on news media and particularly in the social media, the silence of Mr. Binay and his lawyer to present counter-evidence is alarming. So far, no court has yet passed upon the credibility of Mercado as the tormentor of Binay. But so far because of his repeated appearance in the Senate hearings, it is Mercado who should be credited for positive testimony. His statements are based on facts supported by documents and replete with details - factors which, in jurisprudence, are considered as indicators of truth.

Binay promises to make a detailed defense not in the Senate hearing, but in the Ombudsman, where he is facing plunder and other criminal charges. Unfortunately, the law does not allow Binay to just choose the forum where he shall make his defense. What is happening at present is that while the Senate is conducting an inquiry in aid of legislation, the case is being tried before the bar of public opinion. If he proceeds to run for president, Binay will try to win over at least a plurality of the Filipino people, who are accessing the event against him at this time.

It is public opinion, and not the Senate subcommittee, that will make a finding on whether Binay is guilty. A senate committee does not promulgate findings of guilt or innocence. If a criminal charge is involved, all that the committee can do is to endorse the case for further preliminary investigation of the criminal aspect of the case to the Ombudsman or to the Secretary of Justice. Hence, for me as a concerned citizen, it is essential, even vital, for Binay to adduce evidence on his behalf at the Senate hearing. I quote the Supreme Court in the 2000 case of People v. Villanueva:

"As between a categorical testimony that rings of truth on one hand, and a bare denial on the other, the former is generally held to prevail. A mere denial, like alibi, is inherently a weak defense and constitutes self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters."

Since this is a convention sponsored by the Catholics for RH, allow me to conclude with this prayer:

God, give us Men! A time like this demands
Strong minds, great hearts, true faith and ready hands;
Men whom the lust of office does not kill;
Men whom the spoils of office cannot buy;
Men who possess opinions and a will;
Men who have honor, men who will not lie.