The 13th Place

With the senatorial count winding up, people I meet ask me this question, “Can the Comelec proclaim 13 senators instead of 12, owing to the vacancy that Sen. Aquino will leave behind as he assumes the Presidency?”. It is a valid question, one that I myself asked in the middle of the campaign as I was writing an analysis of a post election scenario (Noynoy Aquino Could be a Hostaged President, March 18, 2010).

I am not a lawyer, but in my 9 years as a congressman and previous 8 years as a senior legislative officer in the Senate, I have already learned how to research on laws and come up with my own opinions on some legal matters. So when that question came to my mind months back, I did some readings and study on previous cases of the same circumstance.

First of all, what does the law say?

Of course, the basic law of the land prescribes what we should do. Article VI, Sec. 9 of the Philippine Constitution says, “In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.”

This means that the position that Sen. Noynoy Aquino will leave behind when he assumes the Presidency on June 30, 2010 may only be filled by complying with laws which prescribe how to elect a senator to fill the vacancy. To meet this requirement of the Constitution, the 8th Congress passed Republic Act No. 6645 which prescribes “The Manner of Filling a Vacancy in the Congress of the Philippines”.

RA 6645 provides that in case of a vacancy in either the House of Representatives or the Senate, the Comelec shall hold a special election to fill the vacancy “upon receipt of a resolution of the Senate or the House of Representatives, as the case may be, certifying to the existence of such vacancy and calling for a special election”.

The Senate of the 14th Congress could not have passed a resolution to declare a vacancy and call for an election to fill the same because the vacancy will only occur on June 30, 2010 when Sen. Aquino will assume the presidency or 51 days after the elections. The call for a special election to fill a vacancy should be done before the elections. And of course, the Senate has to certify to the existence of an actual vacancy.

For the May 10, 2010 Elections, the Comelec cannot simply proclaim the 13th placer as a winner because there is no call for a special election to fill the vacancy to be left by Sen. Aquino. In fact, it is quite clear that the election for senators is only for the regular elections to fill vacancies arising from the constitutionally scheduled end of terms of 12 incumbent senators. The ballot itself is proof this, since in the space provided for the names of the candidates for senators, it is written “Vote for not more than 12”.

RA 6645 requires that the Comelec announce the special election to fill a vacancy and properly inform the public about such a special election. Congress even further refined the law with the passage of Republic Act No. 7166.

RA 7166, amending RA 6645, says, “In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy. However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the succeeding regular election.”

This means that for the vacancy created by Sen. Aquino’s assumption of the presidency, it will be filled through a special election to be held simultaneously with the elections in 2013. The Comelec cannot fill the vacancy using the results of the May 10, 2010 elections because the requirements are impossible to meet:

1. The Senate has to certify to the vacancy and call for a special election to fill the vacancy. But the Senate could not certify to a vacancy and call for a special election on May 10, 2010 because there was no vacancy. It will only occur on June 30, 2010.
2. The Comelec could not call for a special election because there was no resolution from the Senate. It has no mandate to proclaim the 13th placer as a winner.
3. The law provides that a special election to fill the vacancy shall only be held simultaneously with the next regular election which is in 2013.

It is therefore quite clear that the vacancy to be left behind by soon-to-be President Benigno Aquino III may only be filled in the 2013 elections, provided that all the requirements are met.

I have no problem if my fellow SLAMAT LORRRD candidate Risa Hontiveros lands in the 13th spot and is proclaimed as the 13th winning senator, if there is no legal impediment. I would be happy for her. But even if it was I in 13th place under the same circumstances, I would still acknowledge that the law will prevent me from assuming office.

So right now, it would be best to remind the Senate of the 15th Congress to pass the resolution certifying to a vacancy and calling for the Comelec to set a special election to fill the same simultaneous with the May 2013 senatorial elections.

By then, the battlecry will be “13 sa 2013!”


****CORRECTION*****

I inadvertently forgot that there will be barangay elections in October 2010, unless the Congress decides to set it on another date. The provision of RA 7166 which provides "in case of such vacancy in the Senate, the special election shall be held simultaneously with the succeeding regular election” makes it possible to have a special election for to fill Sen. Aquino's vacancy. But the law still requires that the Senate certify such vacancy and call for a special election to complete the 24-seat chamber.