The recent appointment of Alan Peter Cayetano to the top post in the Department of Foreign Affairs has left a vacancy in the Senate. Cayetano was last elected to the Senate in May 2013. His term as senator would have ended in 2019.
Even before the recent confirmation of his appointment by the Commission on Appointments, Secretary Cayetano has already gone to work. Fortunately, Cayetano is not too keen about the proposal of ex-House Speaker Jose de Venecia Jr. for the Philippines to pursue a joint exploration of the resources in the Spratly Islands in the West Philippine Sea with Communist China and Vietnam. Cayetano has correctly but politely insinuated that if the joint exploration suggested by De Venecia requires Manila to renounce Philippine sovereignty over maritime territory which, under international law, belongs to the Philippines, that joint exploration will be in violation of the Constitution. Sovereignty cannot be given away through a mere executive agreement over disputed waters.
At any rate, de Venecia’s proposal comes as a big surprise to many. Having relegated himself to the wings of the political stage for the past several years, de Venecia has suddenly appeared from nowhere to propose something that may prejudice the interests of the Republic of the Philippines. His sudden return to mainstream politics is highly suspect, considering that he has all the badges of a traditional politician.
Going back to the vacancy in the Senate created by Cayetano’s departure from the legislative branch of government, that vacancy may be filled only by way of a special election to be called by Congress, as mandated under Section 9, Article VI of the Constitution.
Congress, however, is not legally obligated to fill the vacancy. This is clear from the aforecited provision of the charter, which uses the modal “may,” as in “a special election may be called to fill such vacancy …” Under the Constitution and the Omnibus Election Code, twelve senators are elected every three years, for a term of six years.
The last election for 12 seats in the Senate took place in May 2016. Senator Leila de Lima placed last among the 12 winning candidates. Thirteenth place went to Francis Tolentino, the ex-chairman of the Metropolitan Manila Development Authority whose departure from that agency is not lamented by many.
Some observers have raised the query—may the thirteenth placer in the May 2016 senate elections fill the current vacancy in the Senate created by Cayetano’s appointment as DFA head? The answer is in the negative.
As pointed out above, any vacancy in the Senate may be filled only by way of a special election called by Congress. This means that the 13th placer does not automatically become a senator. From a electoral perspective, installing the 13th placer in office is untenable because the 13th placer was rejected by the electorate in the polls. Therefore, allowing the 13th placer to fill the vacancy left by Cayetano is both unconstitutional and a repudiation of the popular will.
This view is not without precedent. When Benigno Aquino III won the presidential elections in May 2010, he vacated his seat in the Senate halfway through his six-year term. In other words, his victory in the presidential election created a vacancy in the Senate. Back then, the 13th placer in the May 2010 senate race had hoped to fill the vacancy created by Aquino III simply because she was the 13th placer. Her hopes were dashed by legal experts who cited the constitutional procedure for filling vacancies in the Senate.
When a senator is elected to a six-year term by the sovereign Filipino people, that senator should serve the full six-year term. Allowing the senator to resign before the end of his or her term to assume a post in the executive or judicial department is a defiance of the sovereign popular will.
It may be argued that a senator may not be compelled to continue holding office against his will because that is tantamount to involuntary servitude, something prohibited by the Constitution. That may be so, but since no person can be compelled to run for public office, a candidate for the Senate is deemed to have waived his or her right to invoke the constitutional prohibition against involuntary servitude the moment he or she declared himself to the voters as one who willing to work as a senator for a term of six years.
Therefore, a senator or a representative who cuts short his or her term to assume public office elsewhere actually shortchanges the electorate who installed him in office. Since the Constitution provides that public office is a public trust, shortchanging the electorate amounts to a violation of the public trust.
That anomaly was, to some extent at least, addressed by the Omnibus Election Code, prior to its subsequent amendment. Under the original Code, a senator who runs for president or vice president is considered resigned from his post in the Senate. Sadly, a law enacted by Congress repealed that provision and allowed a senator to return to his or her post in the Senate in the event that his or her bid for the presidency or vice presidency is unsuccessful.
That amendment mocks the constitutional dictate that public office is a public trust, because it allows opportunistic politicians to speculate on their chances of winning higher public office while holding on to their current positions.
Legal experts believe that the amendatory law in question is unconstitutional because that specific provision which allows defeated senators to re-assume their posts in the Senate is a mere “rider” in the law. Riders—stealthy insertions in a legislative enactment and which evade getting mentioned in the title of the legislative enactment concerned—are prohibited by the Constitution.
Many incumbent politicians have benefitted from that anomalous amendment to the Omnibus Election Code. Senators Grace Poe, Chiz Escudero, Antonio Trillanes, and Gregorio Honasan are in that list.