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RECALL In its Resolution No. 3121, dated March 9, 2000, the COMELEC set the date of the recall elections in Pasay City on April 15, 2000. Consequently, the petition for mandamus in G.R. No. 140714 to compel the COMELEC to fix a date for the recall elections in Pasay City is no longer tenable. We are thus left with only petitioner Claudio's action for certiorari and prohibition. The bone of contention
in this case is §74 of the Local Government Code (LCG)4
[R.A. No. 7160.] which provides:
Scslx Limitations on Recall. - (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. (b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1) year immediately preceding a regular local election. As defined at the hearing of these cases on April 4, 2000, the issues are: WHETHER, under Section 74 of the Local Government Code of 1991 (R.A. No. 7160) ... A. The word "recall" in paragraph (b) covers a process which includes the convening of the Preparatory Recall Assembly and its approval of the recall resolution. B. The term "regular local election" in the last clause of paragraph (b) includes the election period for that regular election or simply the date of such election.
(1) On
Whether the Word "Recall" in Paragraph (b) of §74 of the Local
Government Code Includes the Convening of the Preparatory Recall Assembly
and the Filing by it of a Recall Resolution Petitioner contends that
the term "recall" in §74(b) refers to a process, in contrast to
the term "recall election" found in §74(a), which obviously
refers to an election. He claims that "when several barangay chairmen
met and convened on May 19, 1999 and unanimously resolved to initiate the
recall, followed by the taking of votes by the PRA on May 29, 1999 for the
purpose of adopting a resolution ‘to initiate the recall of Jovito
Claudio as Mayor of Pasay City for loss of confidence,’ the process of
recall began" and, since May 29, 1999 was less than a year after he
had assumed office, the PRA was illegally convened and all proceedings
held thereafter, including the filing of the recall petition on July 2,
1999, were null and void. Slxsc The COMELEC, on the other hand, maintains that the process of recall starts with the filing of the petition for recall and ends with the conduct of the recall election, and that, since the petition for recall in this case was filed on July 2, 1999, exactly one year and a day after petitioner's assumption of office, the recall was validly initiated outside the one-year prohibited period. Both petitioner Claudio and the COMELEC thus agree that the term "recall" as used in §74 refers to a process. They disagree only as to when the process starts for purposes of the one-year limitation in paragraph (b) of §74. We can agree that recall
is a process which begins with the convening of the preparatory, recall
assembly or the gathering of the signatures at least 25% of the registered
voters of a local government unit, and then proceeds to the filing of a
recall resolution or petition with the COMELEC, the verification of such
resolution or petition, the fixing of the date of the recall election, and
the holding of the election on the scheduled date.5 [Thus,
the Local Government Code provides: SEC.
70. Initiation of the Recall Process.¾ (a) Recall may be
initiated by a preparatory recall assembly or by the registered voters of
the local government unit to which the local elective official subject to
such recall belongs. (b)
There shall be a preparatory recall assembly in every province, city,
district, and municipality which shall be composed of the following:
Slxmis (1)......provincial
level. – All mayors, vice mayors, and sangguniang members of the
municipalities and component cities; (2)......City
level. – All punong barangay and sangguniang barangay members in the
city; (3)......Legislative
District level. – In cases where the sangguniang panlalawigan members
are elected by district, all elective municipal officials in the district;
and in cases where sangguniang panlungsod members are elected by district,
all elective barangay officials in the district; and (4)......Municipal
level. – All punong barangay and sangguniang barangay members in the
municipality. (c)
A majority of all the preparatory recall assembly members may convene in
session in a public place and initiate a recall proceeding against any
elective official in the local government unit concerned. Recall of
provincial, city, or municipal officials shall be validly initiated
through a resolution adopted by a majority of all the members of the
preparatory recall assembly concerned during its session called for the
purpose. (d)
Recall of any elective provincial, city, municipal, or barangay official
may also be validly initiated upon petition of at least twenty-five
percent (25%) of the total number of registered voters in the local
government unit concerned during the election in which the local official
sought to be recalled was elected. (1)......A
written petition for recall duly signed before the election register or
his representative and in the presence of a representative, of the
petitioner and a representative of the official sought to be recalled, and
in a public place in the province, city, municipality, or barangay, as the
case may be, shall be filed with the Comelec through its office in the
local government unit concerned. The Comelec or its duly authorized
representative shall cause the publication of the petition in a public and
conspicuous place for a period of not less than ten (10) days nor more
than twenty (20) days, for the purpose of verifying the authenticity and
genuineness of the petition and the required percentage of voters. (2)......Upon
the lapse of the aforesaid period, the Comelec or its duly authorized
representative shall announce the acceptance of candidates to the position
and thereafter prepare the list of candidates which shall include the name
of the official sought to be recalled.
Missdaa SEC. 71. Election on Recall. ¾ Upon the filing of a valid resolution or petition for recall with the appropriate local office of the Comelec, the Commission or its duly authorized representative shall set the date of the election on recall, which shall not be later than thirty (30) days after the filing of the resolution or petition for recall in the case of the barangay, city, or municipal officials, and forty-five (45) days in the case of provincial officials. The official or officials sought to be recalled shall automatically be considered as duly registered candidate or candidates to the pertinent positions and, like other candidates, shall be entitled to be voted upon.] However, as used in paragraph (b) of § 74, "recall" refers to the election itself by means of which voters decide whether they should retain their local official or elect his replacement. Several reasons can be cited in support of this conclusion. First, § 74 deals with restrictions on the power of recall. It is in fact entitled "Limitations on Recall." On the other hand, §69 provides that "the power of recall ...shall be exercised by the registered voters of a local government unit to which the local elective official belongs." Since the power vested on the electorate is not the power to initiate recall proceedings6 [Such power is vested in the PRA or in at least 25% of the registered voters. §70(c)(d)] but the power to elect an official into office, the limitations in §74 cannot be deemed to apply to the entire recall proceedings. In other words, the term "recall" in paragraph (b) refers only to the recall election, excluding the convening of the PRA and the filing of a petition for recall with the COMELEC, or the gathering of the signatures of at least 25 % of the voters for a petition for recall. Thus, there may be several PRAs held (as in the case of Bataan Province in 1993) or petitions for recall filed with the COMELEC - there is no legal limit on the number of times such processes may be resorted to. These are merely preliminary steps for the purpose of initiating a recall. The limitations in §74 apply only to the exercise of the power of recall which is vested in the registered voters. It is this - and not merely, the preliminary steps required to be taken to initiate a recall - which paragraph (b) of §74 seeks to limit by providing that no recall shall take place within one year from the date of assumption of office of an elective local official. Indeed, this is the
thrust of the ruling in Garcia v. COMELEC7 [227 SCRA 100 (1993)] where two objections were raised
against the legality of PRAs: (1) that even the power to initiate recall
proceedings is the sole prerogative of the electorate which cannot be
delegated to PRAs, and (2) that by vesting this power in a PRA, the law in
effect unconstitutionally authorizes it to shorten the term of office of
incumbent elective local officials. Both objections were dismissed on the
ground that the holding of a PRA is not the recall itself. With respect to
the first objection, it was held that it is the power to recall and not
the power to initiate recall that the Constitution gave to the people.
With respect to the second objection, it was held that a recall resolution
"merely sets the stage for the official concerned before the tribunal
of the people so he can justify why he should be allowed to continue in
office. [But until] the people render their sovereign judgment, the
official concerned remains in office . . . ."
Sdaadsc If these preliminary proceedings do not produce a decision by the electorate on whether the local official concerned continues to enjoy the confidence of the people, then, the prohibition in paragraph (b) against the holding of a recall, except one year after the official's assumption of office, cannot apply to such proceedings. The second reason why the term "recall" in paragraph (b) refers to recall election is to be found in the purpose of the limitation itself. There are two limitations in paragraph (b) on the holding of recalls: (1) that no recall shall take place within one year from the date of assumption of office of the official concerned, and (2) that no recall shall take place within one year immediately preceding a regular local election. The purpose of the first limitation is to provide a reasonable basis for judging the performance of an elective local official. In the Bower case8 [In re Bower 41 Ill. 777, 242 N.E. 2d 252 (1968)] cited by this Court in Angobung v. COMELEC,9 [269 SCRA 245, 256 (1997)] it was held that "The only logical reason which we can ascribe for requiring the electors to wait one year before petitioning for a recall election is to prevent premature action on their part in voting to remove a newly elected official before having had sufficient time to evaluate the soundness of his policies and decisions." The one-year limitation was reckoned as of the filing of a petition for recall because the Municipal Code involved in that case expressly provided that "no removal petition shall be filed against any officer or until he has actually held office for at least twelve months." But however the period of prohibition is determined, the principle announced is that the purpose of the limitation is to provide a reasonable basis for evaluating the performance of an elective local official. Hence, in this case, as long as the election is held outside the one-year period, the preliminary proceedings to initiate a recall can be held even before the end of the first year in office of a local official. It cannot be argued that
to allow recall proceedings to be initiated before the official concerned
has been in office for one-year would be to allow him to be judged without
sufficient basis. As already stated, it is not the holding of PRA nor the
adoption of recall resolutions that produces a judgment on the performance
of the official concerned; it is the vote of the electorate in the
Election that does. Therefore, as long as the recall election is not held
before the official concerned has completed one year in office, he will
not be judged on his performance prematurely.
Rtcspped Third, to construe the term "recall" in paragraph (b) as including the convening of the PRA for the purpose of discussing the performance in office of elective local officials would be to unduly restrict the constitutional right of speech and of assembly of its members. The people cannot just be asked on the day of the election to decide on the performance of their officials. The crystallization and formation of an informed public opinion takes time. To hold, therefore, that the first limitation in paragraph (b) includes the holding of assemblies for the exchange of ideas and opinions among citizens is to unduly curtail one of the most cherished rights in a free society. Indeed, it is wrong to assume that such assemblies will always eventuate in a recall election. To the contrary, they may result in the expression of confidence in the incumbent. Our esteemed colleague Justice Puno says in his dissent that the purpose of the one-year period in paragraph (b) is to provide the local official concerned a "period of repose" during which "[his] attention should not be distracted by any impediment, especially by disturbance due to political partisanship." Unfortunately, the law cannot really provide for a period of honeymoon or moratorium in politics. From the day an elective official assumes office, his acts become subject to scrutiny and criticism, and it is not always easy to determine when criticism of his performance is politically motivated and when it is not. The only safeguard against the baneful and enervating effects of partisan politics is the good sense and self restraint of the people and its leaders against such shortcomings of our political system. A respite from partisan politics may, have the incidental effect of providing respite from partisanship, but that is not really the purpose of the limitation on recall under the law. The limitation is only intended to provide a sufficient basis for evaluating and judging the performance of an elected local official. In any event, it is argued that the judgments of PRAs are not "as politically unassailable as recalls initiated directly by the people." Justice Puno cites the "embarrassing repudiation by the people of [Kaloocan City's] Preparatory Recall Assembly" when, instead of ousting Mayor Rey Malonzo, they reelected him. Two points may be made against this argument. One is that it is no disparagement of the PRA that in the ensuing election the local official whose recall is sought is actually reelected. Laws converting municipalities into cities and providing for the holding of plebiscites during which the question of cityhood is submitted to the people for their approval are not always approved by the people. Yet, no one can say that Congress is not a good judge of the will of the voters in the locality. In the case of recall elections in Kaloocan City, had it been shown that the PRA was resorted to only because those behind the move to oust the incumbent mayor failed to obtain the signatures of 25% of the voters of that city to a petition for his recall, there may be some plausibility for the claim that PRAs are not as good a gauge of the people's will as are the 25 % of the voters. Indeed, recalls
initiated directly by 25% of the registered voters of a local government
unit cannot be more representative of the sentiments of the people than
those initiated by PRAs whose members represent the entire electorate in
the local government unit. Voters who directly initiate recalls are just
as vulnerable to political maneuverings or manipulations as are those
composing PRAs. Korte The other point regarding Justice Puno’s claim is that the question here is not whether recalls initiated by 25% of the voters are better. The issue is whether the one-year period of limitation in paragraph (b) includes the convening of the PRA. Given that question, will convening the PRA outside this period make it any more representative of the people, as the petition filed by 25 % of the registered voters is claimed to be? To sum up, the term "recall" in paragraph (b) refers to the recall election and not to the preliminary proceedings to initiate recall - 1. Because §74 speaks of limitations on "recall" which, according to §69, is a power which shall be exercised by the registered voters of a local government unit. Since the voters do not exercise such right except in an election, it is clear that the initiation of recall proceedings is not prohibited within the one-year period provided in paragraph (b); 2. Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficient basis for judging an elective local official, and final judging is not done until the day of the election; and 3. Because to construe the limitation in paragraph (b) as including the initiation of recall proceedings would unduly curtail freedom of speech and of assembly guaranteed in the Constitution. As the recall election in Pasay City is set on April 15, 2000, more than one year after petitioner assumed office as mayor of that city, we hold that there is no bar to its holding on that date. (2) On
Whether the Phrase "Regular Local Election" in the Same
Paragraph (b) of §74 of the Local Government Code includes the Election
Period for that Regular Election or Simply the Date of Such Election Petitioner contends,
however, that the date set by the COMELEC for the recall election is
within the second period of prohibition in paragraph (b). He argues that
the phrase "regular local elections" in paragraph (b) does not
only mean "the day of the regular local election" which, for the
year 2001 is May 14, but the election period as well, which is normally at
least forty five (45) days immediately before the day of the election.
Hence, he contends that beginning March 30, 2000, no recall election may
be held. Sclaw This contention is untenable. The law is unambiguous
in providing that "[n]o recall shall take place within . . . one (1)
year immediately preceding a regular local election." Had Congress
intended this limitation to refer to the campaign period, which period is
defined in the Omnibus Election Code,10 [The Omnibus
Election Code, § 3, provides: …. The
campaign periods are hereby fixed as follows: (a)......For
President, Vice President and Senators, ninety (90) days before the day of
the election; and (b)......For Members of the House of Representatives and elective provincial, city and municipal officials, forty-five (45) days before the day of the election….] it could have expressly said so. Moreover, petitioner's
interpretation would severely limit the period during which a recall
election may be held. Actually, because no recall election may be held
until one year after the assumption of office of an elective local
official, presumably on June 30 following his election, the free period is
only the period from July 1 of the following year to about the middle of
May of the succeeding year. This is a period of only nine months and 15
days, more or less. To construe the second limitation in paragraph (b) as
including the campaign period would reduce this period to eight months.
Such an interpretation must be rejected, because it would devitalize the
right of recall which is designed to make local government units"
more responsive and accountable."
Sclex Indeed, there is a distinction between election period and campaign period. Under the Omnibus Election Code,11 [Id.] unless otherwise fixed by the COMELEC, the election period commences ninety (90) days before the day of the election and ends thirty (30) days thereafter. Thus, to follow petitioner's interpretation that the second limitation in paragraph (b) includes the "election period" would emasculate even more a vital right of the people. To recapitulate the discussion in parts 1 and 2, §74 imposes limitations on the holding of recall elections. First, paragraph (a) prohibits the holding of such election more than once during the term of office of an elective local official. Second, paragraph (b) prohibits the holding of such election within one year from the date the official assumed office. And third, paragraph (b) prohibits the holding of a recall election within one year immediately preceding a regular local election. As succinctly stated in Paras v. COMELEC,12 [264 SCRA 48, 54 (1996)] "[p]aragraph (b) construed together with paragraph (a) merely designates the period when such elective local official may be subject to recall election, that is, during the second year of office." (3) On
Whether the Recall RESOLUTION was Signed by a Majority of the PRA and Duly
Verified Petitioner alleges other grounds for seeking the annulment of the resolution of the COMELEC ordering the holding of a recall election. He contends that a majority of the signatures of the members of the PRA was not obtained because 74 members did not really sign the recall resolution. According to petitioner, the 74 merely signed their names on pages 94-104 of the resolution to signify their attendance and not their concurrence. Petitioner claims that this is shown by the word "Attendance" written by hand at the top of the page on which the signatures of the 74 begin. This contention has no
basis. To be sure, this claim is being raised for the first time in this
case. It was not raised before the COMELEC, in which the claim made by
petitioner was that some of the names in the petition were double entries,
that some members had withdrawn their support for the petition, and that
Wenceslao Trinidad's pending election protest was a prejudicial question
which must first be resolved before the petition for recall could be given
due course. The order of the COMELEC embodying the stipulations of the
parties and defining the issues to be resolved does not include the issue
now being raised by petitioner.
Xlaw Although the word "Attendance" appears at the top of the page, it is apparent that it was written by mistake because it was crossed out by two parallel lines drawn across it. Apparently, it was mistaken for the attendance sheet which is a separate document. It is absurd to believe that the 74 members of the PRA who signed the recall resolution signified their attendance at the meeting twice. It is more probable to believe that they signed pages 94-104 to signify their concurrence in the recall resolution of which the pages in question are part. The other point raised by petitioner is that the recall petition filed in the COMELEC was not duly verified, because Atty. Nelson Ng, who notarized it, is not commissioned as notary public for Pasay City but for Makati City. As in the case of the first claim, this issue was not raised before the COMELEC itself. It cannot, therefore, be raised now. En
Banc, Justice Mendoza, JOVITO
O. CLAUDIO, petitioner, vs. COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET
AND MANAGEMENT, COMMISSION ON AUDIT and RICHARD ADVINCULA, respondents.
En
Banc, Justice Mendoza, PREPARATORY
RECALL ASSEMBLY OF PASAY CITY, herein represented by its Chairman, RICHARD
ADVINCULA, petitioner, vs. THE COMMISSION ON ELECTIONS, DEPARTMENT OF
BUDGET AND MANAGEMENT, COMMISSION ON AUDIT and HON. JOVITO O. CLAUDIO,
respondents,
[G.R. No. 140714. May 4, 2000] Sec. 7. Period to Decide by the Commission En Banc. – Any case or matter submitted to or heard by the Commission en banc shall be decided within thirty (30) days from the date it is deemed submitted for decision or resolution, except a motion for reconsideration of a decision or resolution of a Division in Special Actions and Special cases which shall be decided within fifteen (15) days from the date the case or matter is deemed submitted for decision, unless otherwise provided by law. The
herein petitioners allege that the act of respondent COMELEC in not
resolving the petition, EM No. 99-006, within the reglementary period
constitutes neglect in the performance of its duties and responsibilities;
and that the alleged inaction of respondent COMELEC will render the said
case and/or PRA Resolution No. 1 moot and academic inasmuch as recall
elections cannot be undertaken anymore come June 30, 2000 pursuant to
Section 74 of the 1991 Local Government Code, which provides that: Sec. 74. Limitation on Recall. – (a) any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. (b) No
recall shall take place within one (1) year from the date of the
official’s assumption to office or one (1) year immediately preceding a
regular local election.3 [Underscoring
ours.] Finally,
on February 18, 2000, sensing the urgency of the situation since PRA
Resolution No. 1 was not yet acted upon by the COMELEC, the herein
petitioners filed the present petition for mandamus to compel respondent
COMELEC to resolve and deny immediately Navaro’s petition, docketed
therein as EM No. 99-006, and in effect to give due course to and
implement the said PRA Resolution. The
corollary issue in the case at bench is whether or not an elective
official who became City Mayor by legal succession can be the subject of a
recall election by virtue of a Preparatory Recall Assembly Resolution
which was passed or adopted when the said elective official was still the
Vice-Mayor. We
deny the petition. On
March 31, 2000 respondent COMELEC issued and promulgated in EM No. 99-006
a Resolution4
[Rollo,
pp. 64-69.] which denied due course
to the subject PRA Resolution No. 1.
This development therefore rendered the present petition for
mandamus moot and academic. The
record shows that herein petitioners’ counsel of record was furnished
copies of the COMELEC’s Resolution dated March 31, 2000 by registered
mail on April 1, 2000. Anent
the corollary issue as to whether or not Mayor Navarro can be the subject
of recall election by virtue of Resolution No. 1 of the Preparatory Recall
Assembly which was passed when she was still the elected City Vice-Mayor,
the same has become moot and academic.
We quote below the pertinent portion of the COMELEC’s Resolution
dated March 31, 2000 in EM No. 99-006 and to which we agree, to wit: The
assumption by legal succession of the petitioner as the new Mayor of
Santiago City is a supervening event which rendered the recall proceeding
against her moot and academic. A
perusal of the said Resolution reveals that the person subject of the
recall process is a specific elective official in relation to her specific
office. The said resolution
is replete with statements, which leave no doubt that the purpose of the
assembly was to recall petitioner as Vice Mayor for her official acts as
Vice Mayor. The title itself
suggests that the recall is intended for the incumbent Vice Mayor of
Santiago City. The third
paragraph of the resolution recounted “ the official acts of City Vice
Mayor Navarro that brought forth the loss of confidence in her capacity
and fitness to discharge the duties and to perform the functions of her
public office.” And because of such acts, the assembly “RESOLVED to invoke
the rescission of the electoral mandate of the incumbent City Vice
Mayor.” Clearly, the intent of the PRA as expressed in the said
Resolution is to remove the petitioner as Vice Mayor for they already lost
their confidence in her by reason of her official acts as such.
To recall, then, the petitioner when she is already the incumbent
City Mayor is to deviate from the expressed will of the PRA.
Having, thus, succeeded to the position of City Mayor, the
petitioner was placed beyond the reach of the effects of the PRA
Resolution.5
[Rollo, pp. 67-68.] The
specific purpose of the Preparatory Recall Assembly was to remove Amelita
S. Navarro as the elected Vice-Mayor of Santiago City since PRA Resolution
No. 1 dated July 12, 1999 expressly states that “…it is hereby
resolved to invoke the rescission of the electoral mandate of the incumbent
City Vice-Mayor Amelita S. Navarro for loss of confidence through a
recall election to be set by the Commission on Election as provided for
under Section 71 of the Local Government Code of 1991.”6
[Underscoring
ours.] However, the said PRA
Resolution No. 1 is no longer applicable to her inasmuch as she has
already vacated the office of Vice-Mayor on October 11, 1999 when she
assumed the position of City Mayor of Santiago City. Even
if the Preparatory Recall Assembly were to reconvene to adopt another
resolution for the recall of Amelita Navarro, this time as Mayor of
Santiago City, the same would still not prosper in view of Section 74 (b)
of the Local Government Code of 1991 which provides that “No recall
shall take place within one (1) year from the date of the official’s
assumption of office or one (1) year immediately preceding a regular
election.” There is no more allowable time in the light of that law
within which to hold recall elections for that purpose.
The then Vice-Mayor Amelita S. Navarro assumed office as Mayor of
Santiago City on October 11, 1999. One
year after her assumption of office as Mayor will be October 11, 2000
which is already within the one (1) year prohibited period immediately
preceding the next regular election in May 2001.
En
Banc, Justice De Leon, Afiado, Quemado, Jr., Tangonan v. COMELEC [G.R.
No. 141787. September 18,
2000]
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CCHOPE ELECTION
2001 
