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Risa Hontiveros might still be proclaimed senator

All hope is not lost for senatorial candidate Risa Hontiveros-Baraquel as there is a good chance that she can still be proclaimed as one of the new senators this coming June 30.

Presidential front runner Noynoy Aquino when he assumes the presidency will be vacating his senate seat. When this happens there will be a vacancy in the senate since Aquino had yet to serve another 3 years.

This will also give the senate 1 less senator, or only 23 senators in the senate.

A recent article circulated in Facebook through the groups Youth for Risa Hontiveros, we have received arguments as to why Risa might still become one of our next senators.

Here are the contents of the said notice and message:

Article VI Section 2 of the 1987 Constitution provides that the Senate shall be composed of 24 Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law. Section 9 of Article VI provides that a special election may be called in the manner prescribed by law in case of vacancy in the Senate or in the House of Representative, the winner of which will serve only for the unexpired term.

Under Republic Act No. 7166, Section 4 provides that:

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.

The condition precedent is “permanent vacancy at least one year before the expiration of the term”. Senator Aquino still has three years before his term expires.

According to the Constitution in Article VI Section 8, a regular election for the members of the Senate and the House of Representatives shall be held on the second Monday of May (every three years). A special election cannot be simultaneous with the May 2013 regular election since the term of Senator Aquino ends in 2013. By then, there would be no more vacancy.

The solution therefore, to the vacancy created by Senator Aquino’s ascension to the Presidency is for the May 10, 2010 national election to be effectively considered as the special election necessary to fill up his seat in the Senate. This will ensure compliance with the requirement that there be 24 Senators, while at the same time avoiding the expense, inconvenience, and delay of another, separate special election. The timing is also favorable, given the high degree of public trust in and acceptance of the results of the automated elections.

In Tolentino vs. COMELEC (G.R. No.148334, January 21, 2004), it was held that the COMELEC’s decision to proclaim the candidate receiving the 13th highest number of votes as a senator, to fill in the vacancy created by the appointment of then Senator Teofisto Guingona, Jr. as Vice President was valid. The Court said that the schedule of the special election for senators is mandated by law. The authority to conduct election emanates from statue and hence the voters are charged with the knowledge of the circumstances surrounding the elections. The case spoke of a “statutory notice” to justify that the special election was not invalid even if COMELEC did not notify voters of the special elections, and hence the regular elections of 2001 could serve as the “special election” necessary to fill the vacancy.

The same general principle can be applied in this case. Voters were aware that by electing Senator Aquino as President, they would be creating a vacancy in the Senate. The same idea of “statutory notice” – that the voters knew that they apart from electing the regular 12 Senators, they would be choosing a 13th Senator to complete Senator Aquino’s term – applies here.

Although Tolentino involved a situation where the vacancy in the Senate occurred before the regular elections took place, unlike in the present case where the vacancy will occur after, the underlying principle remains the same. The constitutional imperative to have 24 Senators, ensuring full and complete representation for the people, should be given primacy.
And in this situation, the most expedient and reasonable way to do so is to proclaim the 13th senatorial candidate as a Senator entitled to serve the unexpired portion of Senator Aquino’s term.

(* title mine, article written by a lawyer friend)

any comments on this? please asks your friends about this as well? send back your comments to us.


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