Part 2 of Transcript of Kapihan sa Senado
with Sen. Miriam Defensor-Santiago

On resigning as senator

Q: So hindi totoo 'yung dapat 13 na senators?

Santiago: Ano naman basis doon? Look at the Election Code. Read it from cover to cover. There is no provision for a 13th senator for election. Siguro kagagawan ito ng mga tao na gusto maging senador pero sa surveys alanganin sila. Kaya nila gustong ako'y umalis maaga pa. I was one of the top winners in the last senatorial election. These lowest losers want to kick me out. They want to kick a winner out so they can make way for the losers.

Q: What about Drilon's proposal to elect 12 senators but have a stand by one to take up your place when you resign?

Santiago: Well, all I can say as a lawyer is show me the law. There is no such provision in our law. You'll only miss a senator hypothetically, for three years because the election is set every three years. Then ano mangyari doon sa tatlong taon na 'yun na kailangan na kailangan magkaroon tayo na 13 senators just in case I resign? Suppose I don't resign? I do not understand this preoccupation for dreaming. Nananginip sila.

Q: According to Senate President Juan Ponce Enrile there are constitutional issues like the ratification of treaties that need the presence of 24 senators?

Santiago: Not really 24. You only have to have two-thirds of the majority. So, if you can get two-thirds of the majority, one vote will not make a difference. All these self-indulgence in interpreting the law is motivated by the simple fact that certain people want to get rid of me in the Philippine Senate. Binigay na legal explanation parang wala pa sila.

Q: So, nararamdam n'yo na ba 'yung pressure?

Santiago: Ay, hindi ako nagpe-pressure. The first way to make me do something is to pressure me to do something. Ipaliwanag mo in legal terms or in terms applicable and I will be very reasonable pero if you pressure me lalo na on a legal point, and I pride myself in being a lawyer, that is the worst way. Q: Are you excited or a little sad once you will an ICC judge and be away from your family?

Santiago: Right. I will be away from my family. I will live alone. I will never see my political enemies again. That makes me sad. They are the only reason that I live, so I can cross swords with them. Hindi ko na sila makikita. Eh, sino kakalabanin ko dahil mga judges doon ang tendency nila is to group together and consider themselves as endangered species because they have very esoteric knowledge of the law and not everybody is always happy with the initiation that they issue.

I am very, very sad that I am leaving my own country. But, there is no more challenge for me here. It's all the same. The corrupt politics that I renounced when I first ran for president in 1992 and then subsequently ran for public office as senator, is still the same politics that I find when I am about to leave the country so I think it is time for younger and more energetic people to take over politics. Right now I see the same, old mentality. Look at the way the senatoriables are going about as the candidate of that party or this party and nobody knows, even themselves maybe, what party they belong to. What principles they really stand for. We don't know. We don't see any politics of conviction here just politics of convenience. Kaya ang dali dali na makahanap ng character assassin or black propaganda in Philippine media. Anong klaseng buhay 'yan na nauukol lang sa paninira, sa pang insulto sa kapwa mo and we pride ourselves on being a Christian country. So, I am going to remove myself from this conflicted country.

Q: Will your husband join you at the Hague?

Santiago: No. Because even when I was working in Geneva before as a very young lawyer, in Geneva the problem was that the spouses of the U.N. officials were not allowed to be given work permit, so there was nothing we could do there. Here, I have not explored the idea because my husband is a Filipino through and through. We lived together in America because I was doing my doctorate there and he worked there but he never liked the other cultures that we live in. I will be judge for nine years, so pwede ba hintayin ninyo na lang hanggang umalis ako?

Q: You mentioned politics of convenience, do you consider it as marriage of convenience?

Santiago: There are no ideological differences among political parties in our country. Normally, in any country with a democratic style of government will always polarize into two groups, one we can call for example conservative group and the other we can call the liberal group. The conservative group is usually composed of the rich and the privileged. They never want intervention in the free market. They advocate capitalism at its most unrestricted. They don't want the government to interfer in any way with the economy. That is the so-called conservative view. As little government as possible. On the other hand, by comparison, the liberal view is that government should undertake as many functions as it can afford to shoulder. For example, government should not limit itself to peace and order, it should also try as much as possible to lead a command economy, in effect to direct the forces of the market, and to deliver social services to the public. So, there is always an alienation between groups that want more government and groups that want less government. That is always the delineation in very country. But in the Philippines, we don't have that kind of ideological divide. That is why we can say that there is no difference. If there is any difference, there is a difference without a distinction or a distinction without a difference. Only their names are different, but they all stand for motherhood themes. Like, you have to love your mother, you have to love your country, they all embark on motherhood themes.

Q: Please explain how the Political Party Development Act of 2011 reform or improve the political system of the Philippines and how it will eradicate politics of convenience.

Santiago: Example, gusto mo tumakbong president tapos ayaw ko naman kunin ng party A and yet Party B, sila naman prominent political party, di gumawa ka na lang sarili mo party. Ang kailangang lang ang party dito sa atin ay pera kaya kailangan para may partido ka malapit ka sa mga negosyante na nagbibigay ng mga campaign contributions. For your information, mostly rich people, the people you find at top 100 Filipinos or the top dollar billionaires among the Filipinos, 'yung sila lahat nagbibigay ng campaign contributions to the top three, let us say, presidential candidates. Hindi lang isa bibigyan nila. Pag may survey sila, may sariling survey sila, at nandoon ka sa top three, bibigyan ka. Tapos palit palit ang nagbibigay sa inyong tatlo. Basta segun yan, as the campaign progresses and your popularity rises or falls. Ngayon saan mo kunin ng pera if may principio ka at itong mga trapo have control of the established political parties? Itong panukalang batas na ito ang sinasadya bibigyan ng pera ng goberyno ang political party para mabuhay mo na siya while it is a fledgling or a baby party in the hope that there will be principled members of that party. They will go to the party only because they believe in the platform of the party, which is explicitly different from other parties. That is the philosophy of that bill. Ewan ko lang kung mayroon tayong pera. Political butterflies are endemic to the Philippine political jungle. You can't help it because there's one party to which you can give your "unalloyed" allegiance dahil hindi naman maliwanag kung anong kaibahan ng isang partido sa ibang partido kung hindi the personalities who man it. Kaya ibang tao ayaw tumakbo kung silang asahan na gumastos sa partido na 'yon.

Q: What do you think we should do about Scarborough shoal?

Santiago: First of all let me say that the next five years in Philippine-China relations will be the flash point of the world, particularly in view of the statement by President Obama that the United States will pivot to Asia, meaning to say that they will not pay as much attention as before to Iraq or Afghanistan. Instead, they will pay more attention to the Southeast Asia Region.

Actually, the source of this conflict, which is almost 15 years-old between the Philippines and China, is this: China is about to undergo a transfer of leadership which occurs only once in every 10 years and those who are campaigning to be the leader of the next China want to emphasize to the general Chinese public that he has the leadership to continue the sovereignty and jurisdiction of China over its old empire. When a country was once the leader of an entire empire and has started losing the parts of that empire and wants these parts to be returned to itself, that is called irredentism. So, the main reason why China is engaged in this 15-year-old debate with the Philippines is this resurgence of irredentism in Chinese political philosophy plus the ambition of China to become the behemoth of Asia. Well, of course they will always deny this on paper but China is now the world's second largest economy. It is a superpower. It is estimated that it overtake the United States. The leading countries of the world are based on population and land territory. So they are the United States, there's a big land mass there, a big population plus the BRIC countries, as an acronym Brazil because of the big land territory and the people, Russia, India and China. The US plus the BRIC country. Now, China is going to use soft power for the next five years, meaning to say, it will not send war ships to the Philippines. It does not want to be known for so-called gunboat diplomacy because it knows world public opinion will turn against it. It will not resort to hard power. That is why it is futile for the Philippines to engage in an arms race with China. No matter how much military equipment we buy we can never outfight China. They are just more technologically sophisticated and their economy is simply surging. It is now the world's second largest economy, it is going to beat the United States. So, we don't have the money to keep up with the Jones. What we should prioritize is the maintenance of our Coast Guard. Remember that when our Secretary of Foreign Affairs Albert del Rosario had a meeting with the Secretary of State of the United States Hillary Clinton last month, they appeared at joint conference and Sec. Clinton simply said, "We are willing to give affordable materials and equipment to the Philippines for self defense." And immediately, Sec. del Rosario said, "What we need are long range surveillance aircraft, aircraft radar and cutters, meaning to say boats with military capability so called Hamilton all-weather cutters. So he gave Sec. Clinton a shopping list. But until now we don't see these equipment that we listed. Why? Because the U.S. is under no obligation to us.

We have a conflicted relationship with the U.S. It is a grave mistake for the Filipinos to think that when the Philippines is under attack, automatically the U.S. will come to defend us. They are subconsciously invoking the 1951 Philippine-U.S. Military Defense Treaty of the MDT. But if we read this MDT carefully, we will notice that: 1. These are mutual provisions, America will come to Philippine defense only in the case of armed attack, repeat, armed attack. That is why China will never make an armed attack on the Philippines so that it can never be accused of launching an external armed attack that will trigger the implementation of RP-US Mutual Defense Treaty. That is why they are all using para-military vessels in Scarborough and the Spratlys. Para-military means that it is not really a military boat but instead they send their coast guard vessels or private fishing vessels. Under the Mutual Defense Treaty also, the proviso is that America will come to the Philippine defense if there is an attack in the Pacific area. So, the question is, does Scarborough and Spratly belong to the Pacific area?

Next, the treaty says the U.S will come to our defense in accordance with its constitutional processes. That means that the U.S. Congress will make decision first on how to defend the Philippines. Maybe they will say, " Well, send them all our used junk that we don't need anymore." That will be in accordance with its constitutional processes. That is why the Phil. - U.S. Mutual Defense Treaty is irrelevant to our present row with China.

Now, if that is the case and China is using soft power so that we cannot make a claim that it is launching an armed attack against us, what then should we be doing? I come to your question. The first is, we can engage in diplomacy but as we have already seen, since this began 15 years ago, meaning to say, the Chinese vessels always trying to make excursions into Philippine maritime territory, the thing is that our diplomacy never, never worked. It's just like talking to a blind wall.

In 2002, China became a party, together with Asean members, to a so-called code of conduct which is non-binding and does not impose any punishment for those who violate it where all parties said that they would resolve all dispute by peaceful means for joint deep sea oil exploration. But eventually, China abrogated the 2002 code of conduct by itself unilaterally. So there is no more code of conduct that binds China. There was a meeting recently in Cambodia, but remember Cambodia is a client of China. So they were not able to agree on the proper phraseology of a binding code of conduct. We do not even know what the proposed draft is. So, we cannot use that. We have shown that there is no diplomacy effective enough to bring China to the bargaining table. China has refused to bring our dispute to any international tribunals available. There is a so-called international tribunal on the law of the sea it lost in Hamburg in Germany but although China is a party to that treaty, it made a reservation when it made a reservation when it ratified the treaty. A reservation is when you agree to become part of the treaty or to be obliged by the treaty but you may exert exceptions. That is called a reservation. There are some treaty that say "no reservations shall be valid." But in this case, China made a reservation that it would not accept compulsory procedures for the settlement of territorial or maritime disputes. So that's out, it doesn't want to accept it lost jurisdiction. We can go to the International Court of Justice For the Philippines, ICJ is better because ICJ settles territorial disputes. I will make a distinction between sovereign and jurisdiction. Sovereignty means ikaw ang may ari, jurisdiction means pwede kang gumalaw doon maski na kahit hindi ka may ari. Now, ICJ is meant to settle questions of territorial boundaries, not only questions of jurisdictions, but most importantly, questions of sovereignty. And yet, China has already said it will not agree to the jurisdiction of the ICJ. So, it has already effectively rejected 1. Diplomacy 2. Resort to a tribunal of a court of justice. What is left is power politics that is all we've got, we cannot engage in a massive arms build up. We just don't have the money for it and China's just too big and too rich for us to ever be able to hope to catch up with it. We have to use power politics, what does that mean? We have naturally to turn to our allies, who are our allies? The United States, it has visiting forces agreement for us. Australia, which has a pending listing agreement in the Senate. South Korea, Singapore, and then our fellow members in the ASEAN who have interest in the west Philippine Sea or the south China Sea, Vietnam, Malaysia, and Indonesia. So in other words in answer to your question we have to turn both to our western allies who have strategic interest in our region and to our ASEAN members. What are the strategic interests in the West Philippine Sea of our allies. One, fisheries, South China Sea at least provides of the worlds fisheries catch, 10 percent of fish in the world come from the China Sea. Number 2 this is the Sea of half of the tonnage in the entire world. Half of the tonnage meaning to say the ships criss-cross the globe half of them pass through the ceilings of the South China Sea. Then of course we also know about the hidden natural resources below the sea, oil and natural gas plus South China Sea has one of the best look out points for intelligence collection. Of course the reserves of oil and gas will constitute the energy source for the future. So there are so many factors involved here that will be very difficult to just engage in diplomacy called or to just trust the Philippines- US mutual defence treaty which I already said is virtually irrelevant to the issue. What we have to trust is our western allies and our ASEAN neighbours now in the case of Australia for example which is working for a VFA in the senate which I and I think seven others opposed. But if these countries who what have VFAs with us the United States, Europe and many others maybe South Korea, maybe Singapore etc. if they would commit in writing but of the Philippines is attacked not necessarily armed when the Philippines is victimized by the threat by the use of force we will come to the defence of the Philippines then I would be willing to rethink my position on the Australian VFA. Kung may kailangan tayo mangako sila na tutulungan tayo, yun lang pag asa natin. Under the UN convention law under the sea which the Philippines and China are both parties. If you're an archipelago you are allowed to draw a line around the entire archipelago. Everything inside is your internal water and everything outside is several kinds of water. From the base line or the cost line you draw 12 nautical miles that is your territorial sea or your territorial waters you virtually own that then after 12 miles comes 24 miles the extended miles of the continental shelf where you have the exclusive right to develop all the minerals developed bellow the continental sea and after the 24 miles then come the 200 miles from the base line which is our exclusive economic zone. Tingnan niyo sa mapa yung scarborough is 124 miles away from the coast line of Zambales kaya talagang kasama yan sa ating exclusive economic zone walang pwede mag exploit ng resources including the fish and mineral including other resources na walang paalam saatin and walang pahintulot dahil that is our exclusive economic zone or EEZ. Kaya pag nagpadala ang China ng mga barko dian at huling huli sila meron silang very rare corals meron silang rare endangered fish apart from the daily fish that we are used to eating. They really violate the unclos in addition to our scarborough shore up there near Zambales. Meron pa tayong Spratly Islands here near Palawan ganun rin sa loob rin ng ating EEZ sa ating unclos an gating EEZ ay protectado. Bakit ayaw sundin ng China? Ang ground niya is that it was the original state that discovered these little islands, it is citing a map that was apparently drawn during the 13th century pero kung gera lang toh ng mapa may mapa rin tayo it was drawn about the 18th century plus hindi naman pwede na discovered operation can outweigh the UN convention law of the sea particularly the protection of the 200 mile exclusive economic zone. Kaya makikita mo mayroun sariling international law ang China makikipag sama siya dun sa UN convention law of the sea but it insist on its own interpretation of international law that is basically our problem.

Regarding sending boats to scarborough

Santiago: That's right, that's why ang emphasis lang natin is not the navy, hindi tayo makikipag gera sa China at ang China naman ayaw niya kahit kaya niya dahil magiging external armed attack yun kaya para hindi tayo ma accused of militarism kaya dapat hindi ang navy ang ating I beef up yun narin an gating coast guard and as I said tama ang ginawa ni secretary Del Rosario na hinihingi niya ay long range surveillance aircraft para makita ng eroplano kung may parating dun sa contested islands na yun anti aircraft raydar and Hamilton class all weather cutters it's an effect can be utilized by military use mostly for observation vessel. That is what the US coast guard uses kaya kung kaibigan natin sila bigyan tayo nito kung ano man gusto nilang VFA bigyan tayo nito. Ang America may mga VFA eh di bigyan tayo nito. Kung ang Australia gusto na ngako naman sila that they will give their best effort to give us this because we have to exercise the right of sovereignty but not lose it by default.

Regarding bigger budget for our Armed Forces

Santiago: because the constitution at present requires highest priority should be given to education. That is wrong because if we turn into a military country we simply do not have enough recourses to become a world military power even a regional military power. So what would be the effectivity and what would be the utility of aspiring of a status where we should always be second class or third class that is alarmist in nature. What we need is a more effective coast guard we need not the navy itself plus it is correct that the hierarchy in priority begin in education everything begins in the mind. If we are very clever we can out class the Chinese even with its economic growth even with its status as a super power all we have to do is know the art of international relations is, you cannot just talk about international relations as if you were playing dama, street corner chess. Hindi nag ddama ang China, ang China is deliberately vague about the details for example it says the only way we can settle the dispute if China accepts that China owns the entire South China sea or as they call it West Philippine Sea period. Yun ang sinabi ng spokesperson nila. We want to own it period, you recognize that we own it then we can be friends, if not then we will continue this (in effect) into what they call gunboat diplomacy. As I said there is a distinction between sovereignty and jurisdiction, we claim jurisdiction under the U.N. conference on the law of the sea because it limits itself to questions of jurisdiction, but we can claim sovereignty in the international court of justice except that China does not want to accept jurisdiction of ICJ and under ICJ rules if a state does not want to accept jurisdiction it cannot be a party to complain in the ICJ. ICJ will not have jurisdiction. Kaya ayaw man lang ng China sabihin sa atin, ano bang ibig sabihin ng South China Sea nyo, simula saang punto hanggang saang punto ba yung buong kadagatan na yan gusto ninyo inyo? Edi apektado hindi lang ang Pilipinas kundi pati na ang Vietnam, Malasia, Indonesia at meron pa sigurong iba diyan. Kaya they are deliberately being vague so that they can continue irredentist policy because they are trying to confuse the enemy that's the first rule in warfare, confuse the enemy that what they're trying to do. They never tell us what is the extent of the South China Sea whose ownership they are claiming.

On how critical is it that DFA is the only one having negotiations with China.

Santiago: Kasi ang problema sa China, only the spokesperson of the Chinese Foreign Ministry issues statements to the press, it's never their own secretary of Foreign Affairs or they call it Minister of Foreign Affairs or their President or Prime Minister, it's just a spokesperson. Kaya dapat lang na hindi dapat sagutin ni President Aquino mga pinagsasabi, dahil magiging asymmetrical, ang baba lang niyan tapos sasagot sagot ang presidente natin kaya dito nalang sa DFA level. They do that because they can always renege... ?(sounds like reneg, re-neg) in the form of an explanation or enlightenment on what the spokesperson said so that strategy is correct and I have to point out since I mentioned the word asymmetrical that China is an Asymmetrical power it does not rely anymore on the usual like for example lanterechory--(sounds like) population, the strength of the economy although that is a major factor in China kung hindi, now they are using outer space remember just sent three astronauts into space meaning to say, if the United States and Russia can conduct surveillance from outer space over our countries then we can do the same thing and in choosing internet access, internet control, they can control their internet technology based means of communications, very asymmetrical it's like its embarking on an experiment on how much South power it can employ without being accused of hard power. China is very complicated; the Chinese mind is very Chinese.

Q: You mentioned about Visiting Forces Agreement with Australia and if your suggestion has guarantees can there be amendments be done with the VFA

Santiago: No it is not for the senate to amend any treaty; it just has to accept or to reject. So what we can do is for example, suspend action and then tell the Malacanang senate liaison officer or maybe pass a resolution to the effect that we appeal to the president or we express the sense of the senate that the president should request the Australian state to amend the terms of the VFA so that there will be an automatic sympathy clause with the Philippines when it is under attack. Kasi wala na tayong choice eh, gusto nilang magkaron tayo ng visiting force dito sa ating bansa, di may silbi na para sa kanila, ngayon hindi tayo maka diplomasya sa China dahil hindi naten matakot eh. We are just mosquitos, China is a dragon. It's just like Chinese dragon against ten mosquitos, the mosquitos are just all very talkative, they buzz around your ear but you slap them down they're all dead. So if that is the case we cannot engage it, its economy is just too mighty, the economy is so prevalent now in the world. The U.S. owns 1 trillion US dollar to China that's why that's a soft pedal, don't expect unqualified support from the U.S. for the Philippines and it would be very prudent for President Aquino if we will not cite in public the more militaristic terms of the Philippine - U.S. mutual defense treaty. Wag niyang gawin yon because the U.S. will not back him up. The U.S. has a conflicted relationship with us, because we kicked out the military bases both the Armed Forces in Clark and the Navy in Subic, that was short sighted (cited?), I was against it, but nationalistic feeling was very high at that time it had been inflated beyond reason, it was so short-sighted hindi nila inisip ang magiging kinabukasan because of the rising of China as a world power o tignan mo ngayon wala na tayong Subic edi wala na tayong panlaban but in any event we are just out of the contest we can't even try and qualify in the arms build-up contest here, so wala naman tayong pera, wala tayong weapons, so our only choice is the depend on our Western Allies dependa yan sa pag maneobra mo na may gusto sila sa aten pero tayo may makukuha din sa kanila plus the ASEAN members yan ang pag-asa naten no other, no amount of budgetary appropriations going to save the Philippine EEZ or the Exclusive Economic Zone.

Q: How long could this take given the suggested scenario?

Santiago: Like I said in the next five (5) years this is going to be the flashpoint the Chinese dispute with all the ASEAN neighbors led by the Philippines with Vietnam. We are called the big three the Philippines, Vietnam and China in the South China Sea dispute or the West Philippine Sea dispute.

Q: With the VFA excelled how long do you think the actual scenario would take something about guarantees.

Santiago: Well it depends on their constitutional mechanisms, for example in the Senate could take a very brief time if we are able to convince the senators, the senators of the reasons for certain provision.

Q: What else can we do to assert our claim in the South China Sea?

Santiago: Well we have to scream, like me when I'm outnumbered I scream. It's like this, China to put it bluntly although they're not supposed to be this blunt, anyway I have not yet assumed my job in the ICC. China is like a big gorilla, it's like an 800 pound gorilla you want to test your martial skills around a gorilla it will bully its way across the forest that's what it is doing but that is international relations what can we do. We are entitled to the equal protection of the laws but we are not entitled to the equal creation of states. So we have to use our wits if you are lacking in physical attributes, use your brain. To put it bluntly you have to show the U.S., Australia, South Korea and Singapore to protect the South China Sea from the incursions of China That it will be to their best interest to protect the South China Sea from incursions by China. Why? As I said already, you don't want to give China power over an area of maritime territory that represents 10 percent of the fisheries catch of the entire world. You don't want to give China a territory where half of the world's tonnage passes on its sea lanes. This area earns $ 3.5 trillion every year. You don't want to give that to China. Let us tell these western powers allied with us so-called that they will lose their freedom of navigation over areas which are right now called maritime commons, meaning its common to everybody to pass. If China is able to effectuate its desire to own the entire South China Sea, then there is no freedom of navigation there because freedom of navigation applies as general rule only to international waters. If the waters are national in character, you cannot even pass there without the permission of the state. That is our best argument to the western allies.

Q: Bakit ma'am? Is that China's plan?

Santiago: Yes. Its spokesperson has always said: ' We believe only in the solution that the Philippines will recognize the sovereignty of China in the South China Sea.' Ang ibig sabihin, ang gusto niya, siya ang may-ari nun. Kung may-ari siya, hindi ka man lang makadaan dun. That is called freedom of navigation. You can only have that in the high seas or waters that do not belong to any particular state. That should be the concern of the United States.

Q: But ma'am the spokesperson is only telling us that. Hindi pa niya yan sinasabi sa western powers. Kasama yan nung bullying diba?

Santiago: Yes. Because he confines himself to the Philippine- China dispute but if he is going to make that statement, hindi naman possible na ang Philippine boats lang ang prohibited. Lahat ng boats yan. It will invoke its own interpretation of international law. As I said in the past, there was widespread belief that China had a field of study known as 'Chinese International Law' not necessarily congruent to international law as the rest of the world knows it. May sarili silang international law niya e. That is the strongest argument actually and I'm sure that the US Department of State as well as in those countries that I mentioned are aware of this. Hindi talaga nila pwede pabayaan yan. Its not the Philippine-US military mutual defense treaty that will save us. It is the outright scare that China will not allow the ships of any other nation to pass the South China Sea without its consent.