Vacancy in the Senate

On 14 July 2007, the Commission on Elections declared Juan Miguel Zubiri the 12th elected senatorial candidate in the 2007 elections, narrowly prevailing over rival candidate Aquilino “Koko” Pimentel by a margin of 19,292 votes.  The other day, on 3 August 2011 (more than four years after his proclamation), Mr. Zubiri resigned from the Senate amidst renewed allegations of cheating during the 2007 polls.

Questions on the validity of the 2007 electoral results had resurfaced in the wake of disclosures made last month by Zaldy Ampatuan (former Governor of the Autonomous Region in Muslim Mindanao, who is currently facing charges relating to the massacre of 58 persons in late 2009, during preparations for the 2010 national election).  According to Mr. Ampatuan, former President Gloria Macapagal-Arroyo ordered the rigging of the 2007 senatorial elections.  Mr. Ampatuan claims that the former President  ordered his father, then-Maguindanao Governor Andal Ampatuan Sr., to transfer all votes cast for senatorial candidates Panfilo Lacson, Alan Peter Cayetano and Benigno Aquino III (who was subsequently elected President in 2010) to the candidates belonging to then-President Arroyo’s senatorial slate (which included Mr. Zubiri).  These allegations were corroborated several days later when former Maguindanao Election Supervisor Lintang Bedol reappeared after four years in hiding.  According to Mr. Bedol, he was instructed by the senior Ampatuan to rig the 2007 elections in favor of administration candidates.

Unfortunately for Mr. Pimentel, however, Mr. Zubiri’s resignation will not automatically elevate Mr. Pimentel to the Senate.  Unless the official results of the 2007 senatorial elections are reviewed and overturned, Mr. Pimentel will continue to be viewed as having received the 13th most votes in those elections and therefore, not entitled to a Senate seat.

How are Senate vacancies filled?  Under Article VI, Section 9 of the 1987 Constitution, in the case of a vacancy in the Senate, a special election may be called to fill the vacancy “in the manner prescribed by law,” provided that the Senator thus elected will serve only for the unexpired term.  This is operationalized by Section 4 of Republic Act No. 7166 (1991), which provides:

…  In case a permanent vacancy shall occur in the Senate … at least one (1) year before the expiration of the term, the [Commission on Elections] 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 … the special election shall be held simultaneously with the succeeding regular election.  (Emphasis supplied.)

In other words, under the law, the special election to fill the Senate vacancy caused by Mr. Zubiri’s resignation may only be held simultaneously with the succeeding regular elections, which, in this case, are the 2013 elections.  Holding a special election sometime between now and the next regular election is not allowed.  It also goes without saying that Mr. Pimentel will only occupy the vacancy if he in fact wins such a special election in 2013.[1]

It appears, however, Mr. Pimentel will not need to wait until the 2013 elections.  Shortly after Mr. Zubiri was proclaimed Senator in 2007, Mr. Pimentel filed an election protest with the Senate Electoral Tribunal (SET).  Although the SET has reportedly made an initial determination that Mr. Pimentel actually won the 12th senatorial seat by a margin of approximately 257,000 votes, the SET had delayed rendering a formal decision in light of the pendency of a separate counter-protest filed by Mr. Zubiri, in which Mr. Zubiri claimed that he was also the victim of cheating in the 2007 elections.  Mr. Zubiri reportedly withdrew his counter-protest yesterday, on 4 August.  If Mr. Zubiri had not withdrawn his counter-protest, the resolution thereof would have taken at least another year.  Now, there do not appear to be any remaining obstacles to the SET’s proceeding to resolve Mr. Pimentel’s election protest.

Philbert wishes to thank Benjoe Panahon for helping prepare this post.

[1] In recent memory, there appear to have been four other instances where a vacancy occurred in the Senate mid-term:  (a) in 1998, when Senator Macapagal-Arroyo was elected Vice-President; (b) in 2004, when similarly, Senator Noli de Castro was elected Vice-President; (c) in 2007, when Senator Alfredo Lim was elected Mayor of the City of Manila; and (d) last year, in 2010, when Senator Aquino won the presidential elections.