MIRIAM TO MIGZ: RETURN TO WORK

Sen. Miriam Defensor Santiago said that until the Senate accepts his resignation, Sen. Juan Miguel 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.

Santiago emphasized that the test for a valid continuation in office is that there should be no detriment to the public service.

The senator said that if Zubiri stops reporting to the Senate, he runs the risk of facing a penalty of one to six months' imprisonment.

She quoted a classic authority on the law of public officers, Floyd Mechem: "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."

Santiago cited the 1990 case of Joson v. Nario, where the Supreme Court ruled: "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 said 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 official's intention to surrender his position."

Santiago also 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."

She said that if the Senate decides to vote on Zubiri's resignation, she will vote "No," and she will explain her vote with the comment that 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 said.

Santiago said that if the Senate accepts Zubiri's resignation, it will become effective when Zubiri receives notice of the acceptance.