Section 9, Article 6 (The Legislative Department) of the 1987 Constitution states that, “In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the senator or member of the House of Representatives thus elected shall serve only for the unexpired term.”
When “may be” is used, it’s an option and not compulsory or mandatory. So the one that will call the shots is Congress.
In accordance with current laws, the decision to call a special election to fill permanent vacancies is not mandatory and is solely at the discretion of Congress, which has received criticism for not quickly acting to fill such vacancies. Despite many vacancies occurring well before a year from the end of a congressional term, Congress has left many such seats unfilled. In more extreme examples, some even remained vacant for two years or more.
Since the 1998 elections, there have been two types of elected representatives, those who represent single-member districts and those elected via the party-list system. When a vacancy occurs for a party-list representative, the next-ranked nominee from the party replaces his predecessor. For district representatives, a special election will be held to determine who shall succeed the predecessor.
The law says a special election will not be held if the vacancy occurred less than a year before the next regular scheduled election.
Republic Act 6645, or an act prescribing the manner of filing a vacancy in the Congress of the Philippines, which was approved on Dec. 28, 1987, states: “Once a vacancy occurs in the Senate at least 18 months or in the House of Representatives at least one year before the next scheduled election, the Commission on Elections (Comelec), upon receipt of a resolution from the Senate or House of Representatives, as the case may be, certifying to the existence of such vacancy and calling for a special election, shall hold a special election to fill such vacancy.
“If Congress is in recess, an official communication on the existence of the vacancy and call for a special election by the President of the Senate or by the House Speaker as the case may be, shall be sufficient for such purpose. The senator or House member thus elected shall serve for the unexpired term.
“Congress will provide the funding and the Comelec shall fix the date of the special election which shall not be earlier than 45 days and not later than 90 days from the date of such resolution of communication, stating among other things the office or offices to be voted. Provided, however, that if within the said period a general election is scheduled to be held, the special election shall be held simultaneously with such general election.”
The Comelec is tasked to conduct information dissemination like posting advisory in public places and publication in newspapers where and when the special election will be held.
In 2008, when former Cebu Fifth District Rep. Joseph Ace Durano was appointed by former President Gloria Macapagal-Arroyo as Tourism secretary, the Congress and the Comelec called for a special election. Durano’s younger brother Red replaced him. That was two years before the 2010 elections.
In the case of the Cebu City north district in view of the untimely death of Rep. Raul del Mar, do we need a special election or just wait for the regular elections in 2022? The ball is in the court of the House of Representatives leadership. Though, it was reported that no less than House Speaker Lord Allan Velasco will act as caretaker.