Zubiri faces criminal rap over resignationSantiago

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By: Maila Ager@MAgerINQ

INQUIRER.net11:33 AM August 4th, 2011

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Duterte to make smugglers eat their fake riceMANILA, Philippines Resigned Senator Juan Miguel Zubiri could face the crime of abandonment of office, which carries a penalty of six months imprisonment, if he resigns without the approval of the Senate, Senator Miriam Defensor- Santiago warned on Thursday.

Until the Senate accepts his resignation, Santiago said Zubiri should continue reporting for work.

The Penal Code prohibits the crime of abandonment of office. It is committed by any public officer who, before the acceptance of his resignation, shall abandon his office to the detriment of the public service, she said in a statement.

So if Zubiri would stop reporting to the Senate, Santiago said he would run the risk of facing a penalty of one to six months imprisonment.

Santiago quoted a classic authority on the law of public officers, Floyd Mechem, who said that Mere presentation of a resignation does not work a vacancy, and a resignation is not complete until accepted by proper authority. Until accepted by the proper authority, the public officer may certainly resign, but without acceptance, his resignation is nothing, and he remains in office.

In the 1990 case of Joson v. Nario, Santiago said, the Supreme Court ruled that Acceptance is necessary for the resignation of a public officer to be operative and effective, otherwise the officer is subject to the penal provisions of Article 238 of the Penal Code.

Santiago also explained that because Zubiri resigned from the pressure of what he perceived to be adverse public opinion, his resignation should be considered merely a courtesy resignation.

A courtesy resignation is not a resignation in the legal sense, she said, citing the 1988 case of Ortiz v. Comelec, where the Supreme Court ruled: A courtesy resignation cannot properly be interpreted as a resignation in the legal sense if it is not necessarily a reflection of a public officials intention to surrender his position.

The senator likewise cited the 2001 case of Estrada v. Desierto, where the Supreme Court ruled: There must be an intent to resign, and an intent must be coupled by acts of relinquishment.

So if the Senate decides to vote on Zubiris resignation, Santiago said she would vote no because she said his resignation should be effective only after the Senate Electoral Tribunal issues a decision on the electoral protest filed against Zubiri by Aquilino Pimentel III.

If Zubiri leaves office, and Pimentel is not yet declared the winner of that office, the position of senator will remain vacant, causing detriment to the public service, she further said.