Questions from a resignation

We all know now that, for the first time in Philippine history, a senator, Miguel Zubiri, resigned from the Senate. It is now only a matter of time before Koko Pimentel assumes the vacated seat.

There are questions about the timing and the motives, but I will not get into those. Nor will I speculate about guilt or innocence. While he himself has admitted that he was a beneficiary of electoral fraud, I am willing to assume that he himself had no part in the cheating. Moreover, I doubt that anybody will bring to court a charge of abandonment of office under Article 238 of the Revised Penal Code. But there are some interesting constitutional questions which may have to be answered in some future time.

The simplest of these is the matter of oath-taking. Before whom should Pimentel take his oath? As far as I can tell, neither the Constitution nor the Election Code nor the Administrative Code specifies who should administer the oath. He can take the oath before anybody who is authorized by law to administer oaths. If a president-elect can choose before whom he can take his oath, there is no reason why a senator-elect should not have the same choice.

There are, however, some interesting constitutional questions about reelection. The Constitution says: “The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected.”

The six-year term follows the model of the Senate under the 1935 Constitution. The innovation introduced by the 1987 Constitution is the constraint that no senator shall serve for “more than two consecutive terms.” This limitation was the second of four possible options. The interruption between terms to allow a third election need not be six years. Since senatorial elections are held every three years, the interruption can be three years.

How does the provision apply to Zubiri? Certainly he can run for election in the 2013 elections. Should he win in 2013 and finish the term, can he run in the elections immediately following? It would seem that he cannot because the Constitution says “Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected.” But should the Senate Electoral Tribunal declare that it was Pimentel who was elected, did Zubiri renounce “the office for which he was elected”?

One might say that Zubiri did not renounce anything in 2011 because he had nothing to renounce and therefore it would be as if he was senator only for one term—2013 to 2019. How logical is that? I can only recall an analogous case involving a local mayor. After a mayor had served his third term, his election to that term was declared void. The ex-mayor therefore claimed that he was entitled to another term. The Court held that the decision declaring his third election invalid was of no consequence because he had in fact already served the term. I suggest that a similar logic would apply to Zubiri. It should be remembered that the limitation on terms has been introduced in order to prevent a person from staying too long in power. The purpose, whether one considers it wise or not, should not be frustrated by mere technicalities.

Next comes the question for Pimentel. He will soon assume the office vacated by Zubiri. Certainly Pimentel can run again in 2013. Should he win, however, and serve until 2019, can he run again in that election year? Can he argue that he can because he served less than two years of his first term?

It is interesting to compare the limitation on terms for the Senate and for elective local government officials. Local elective officials may not run for three consecutive “full terms.” Thus, if during a local official’s third term he is ousted for not having been validly elected, he is deemed not to have served three “full terms” and thus can run immediately thereafter. For senators, however, as also for representatives, a “full term” is not specified. Thus, my view is that, unfortunately for Pimentel, although his “tenure” will be far short of six years, he will be credited for having won a full six-year term. Whereas “tenure” can be shortened, a “term” is indivisible, unless the law makes it divisible, as in the case of local elective officials.

Finally, I must add that all these questions are coming up while talk of constitutional amendment or of “surgical” constitutional change is being revived. The questions on reelection arising from Zubiri’s resignation might get a definitive answer or clarification should constitutional amendment finally take place.