MIRIAM: CHARTER FORBIDS TRILLANES MOVE

Santiago, on sick leave, told the media that she expects administration senators to sign her dissent, including senators Joker Arroyo, Richard Gordon, Manuel Lapid, Ramon Revilla, Jr., and Juan Miguel Zubiri.

The Senate Rules can be amended by a motion presented one day before its consideration, by a vote of the majority of the senators present in the session.

Santiago ’s 10 legal grounds are listed in the enclosed dissenting opinion, which shall be circulated among administration senators.

Santiago, although on sick leave, has influenced Senate votes on important issues. Last week, she released an opinion that it might be unconstitutional for the Senate to detain former agriculture secretary Jocelyn Bolante for the fertilizer fund scam, leading the Senate to release him.
-End-

---

15 December 2008

DISSENTING OPINION

TO PROPOSED RESOLUTION FOR TRILLANES TELECONFERENCE

By Sen. Miriam Defensor Santiago

This is to respectfully dissent from the proposed resolution to amend the Senate Rules to allow electronic participation by detained Sen. Antonio Trillanes in Senate proceedings. The grounds for my dissent are as follows:

1. The resolution might violate the Due Process Clause of the Constitution. It will deny due process to the state, represented by state prosecutors who have charged Trillanes with two counts of coup d’etat: one for the Oakwood incident, and the other for the Peninsula incident. If there is any move to allow Trillanes’ electronic participation, the principle of fair play dictates that there should be notice and hearing to the state prosecutors concerned. The resolution merely represents the view of certain senators, who are airing the side of the accused. The Senate has not heard from the side of the prosecution. Since due process requires notice and hearing to all parties involved, merely passing a resolution would be a denial of due process to the state.

2. The resolution might violate the Equal Protection Clause of the Constitution. It might serve as a bad precedent for other persons in other circumstances to invoke a right to participate by electronic means in collective decision-making. Admittedly, the resolution is not limited to a detention prisoner, but includes those who are hospitalized or ill. However, the effect of the resolution would be to make the Senate a singular institution, distinguished from all collective institutions, because the Senate alone would conduct its plenary sessions by electronic means. This would be deleterious to other important collective agencies, such as the House of Representatives, the Supreme Court, the Court of Appeals, and even the President’s cabinet. Should a constitutional issue be raised on the basis of the Equal Protection Clause, the Supreme Court will be faced with the choice of either striking down the Senate resolution, or the untenable choice of making the privilege available to all members of collective public agencies.

3. The resolution violates the common law principle that: “He who comes to court, should come to court with clean hands,” also known as the “clean hands” principle. Trillanes does not come with clean hands. By means of his two nationally-televised coup attempts, he has demonstrated his contempt for the existing governmental system, and for the rule of law. If he had succeeded, he would have been hailed as a hero. But he failed, and is now a suspected criminal. In effect, he is a political offender, who is defined as a criminal driven by ideology. It appears that the Trillanes ideology is to destroy the present government. Thus, he is now barred from seeking the privileges of the very same government he sought to destroy.

4. Trillanes is seeking a privilege that not even presidents and queens have dared to demand. Heads of state, such as the RP and US presidents, as well as the UK queen, appear personally when they deliver state of the nation addresses to the Congress. They do not do so by teleconference. Admittedly, Trillanes is absent because he is under compulsory detention. But his election as senator does not operate to erase the crimes that he apparently committed in full view of the national TV audience. To allow him teleconference rights would be to reward those who have openly expressed contempt for the social order. In fact, if he wishes to be a hero, he should stand his ground and refuse to accept any and all privileges from the Senate, one of the principal institutions that his coup, if it had been successful, would have destroyed.

5. It is not necessary to amend the Senate Rules, because Senate tradition already allows participation of an absent senator in plenary sessions. This is done when the absent senator requests a present senator to read into the records his debate paper, such as interpellations.

6. It is not beneficial, because from a cost-benefit analysis, the expense is not worth one senator’s participation. The resolution is not based on hard data concerning how much the total cost will be.

7. Absence of a senator does not deprive any particular constituency of representation. A senator is elected nationwide, on his main qualification of competence for policymaking. Thus, it cannot be argued that failure of a senator to participate in Senate proceedings would deprive his constituents of a representative. Unlike a member of the House of Representatives, a senator has no defined constituency to represent. A senator is meant to represent the entire country in helping to make policy decisions.

8. The proposed resolution invokes R.A. No. 8792, or the Electronic Commerce Law of 2000, as well as the SEC circular authorizing board meetings through teleconference. Both citations are unavailing. As its name implies, the law is intended primarily to promote commerce. SEC is a major player in the commerce sector. The law makes no reference at all to legislative proceedings, and is thus irrelevant to the issue.

9. Rule 41, Sec. 117, provides that the vote of an absent senator shall not be counted. This Rule is so old that it derives its legal force not only from its inclusion in the Rules, but also from the fact that it has become a tradition. It would denigrate the voting process in the Senate to allow an absent member to vote by remote means.

10. It would be inconsistent for me personally, to favor teleconference rights for Trillanes, when I have a pending complaint against him with the ethics committee. Under Senate Rule 34, acts which offend a public institution shall be deemed unparliamentary. Further, the intent of my complaint against Trillanes is for the Senate to punish him for disorderly behavior in two coup attempts: one before, and one after, his election as senator. If the Ethics Committee so recommends, the Senate may suspend him for 60 days or even expel him outright. I cannot possibly request the Senate to expel him on the one hand; and to allow him to participate in Senate sessions by remote means, on the other hand. That would be unethical prevarication.