Senator Miriam Defensor-Santiago has informed the Commission on Elections (Comelec) that she has no plans of resigning anytime soon, meaning there will be no need to elect 13 senators in the coming 2013 midterm polls.

"I regret that I am unable to determine the date of my resignation, and that the [International Criminal Court] itself does not know either. Of course, I will not resign from the Senate, until the ICC calls me to duty. Hence, I respectfully submit that even only out of prudence, the 2013 ballot should list only 12 vacancies for senators," Santiago told Elections Chairman Sixto Brillantes Jr. in a letter on Wednesday.

Santiago wrote the letter after Brillantes said that the feisty senator has until October 5 to decide whether or not she will resign so that they can make preparations for the election of a 13th senator next year.

The problem arose after Santiago was elected as one of the six new judges of the ICC, the independent body that prosecutes individuals for crimes against humanity and war crimes.

Santiago, however, said that ICC president Sang-Hyun Song had told them in a letter last February not to "make any irreversible commitments for the time being which could terminate your current professional engagements with a view to future engagement at the Court."

"I took this statement to mean that I should not yet resign as senator," she said.

She said Song told them this because the ICC charter provides that any incumbent judge shall not be allowed to retire until he or she finishes any trial where he or she participated.

"In order to observe the provision that the ICC should consist of only 18 judges, a newly-elected judge has to wait until an incumbent judge has disposed of all his pending trials, even if the tenure extends beyond the retirement date of the incumbent. In other words, a judge assigned to a trial or appeals chamber continues in office in order to complete the trial or appeal, even after the expiry of his or her term. Then and only then will the new judge be called to duty," she said.

Santiago was supposed to take oath as ICC judge last March but was not able to do so since she was suffering from hypertension.

"In hindsight, it was fortuitous that I did not take my oath as judge, because it could have disqualified me from remaining as senator," she said.

Santiago said she had also asked Song to call her to duty as one of the last of the six new judges, to which the ICC president reportedly obliged.

"It is not currently anticipated that you shall be called to serve on a full-time basis in the near future although, of course, the needs of the Court shall always be the primary consideration in such decisions. The presidency has also taken note of your decision to continue discharging your duties as a senator... please be assured that when the need for any move to The Hague becomes imminent you will be fully informed, in a timely manner, of all relevant details," Santiago quoted Song as saying in a letter to her last month.

"If I resign from the Senate before the ICC calls me for duty, it will have no responsibility for my income or professional accommodation. Furthermore, I have no discretion on when I should report to the ICC. This is why I cannot resign from the Senate, until the ICC indicates that I should do so. I will simply have to wait until the ICC presidency makes a decision on whether I should report to the appeals chamber, which is considered the most prestigious of the three chambers of the ICC," said Santiago.

Santiago said she is silent about her potential resignation because she did not want to "add to the agitation among [her] political supporters, as evidenced by their comments on [her] Facebook page."

"Normally, the assumption to office by an ICC Judge is treated as confidential between her and the ICC presidency. But because there is now widespread media and public speculation in the Philippines, I am constrained to make this letter public, at least to save significant printing expenses on the part of the Comelec, and to guide political parties in drawing up their senatorial slates," she said. — RSJ, GMA News