Republic of the Philippines

Congress of the Philippines

Twelfth Congress

Third Regular Session

Begun and held in Metro Manila, on Monday, the twenty-eighth day of July, two thousand three.

[REPUBLIC ACT NO. 9244]

AN ACT ELIMINATING THE PREPARATORY RECALL ASSEMBLY AS A MODE OF INSTITUTING

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. Section 70, Chapter 5, Title One, Book I of Republic Act No. 7160, otherwise known as
the Local Government Code of 1991, is hereby amended to read as follows:

Section 70. Initiation of the Recall Process.

(a) The Recall of any elective provincial, city, municipal or barangay official shall be commenced by a
petition of a registered voter in the local government unit concerned and supported by the registered
voters in the local government unit concerned during the election in which the local official sought to be
recalled was elected subject to the following percentage requirements:

(1) At least twenty-five percent (25%) in the case of local government units with a voting population of
not more than twenty thousand (20,000);

(2) At least twenty percent (20%) in the case of local government units with a voting population of at
least twenty thousand (20,000) but not more than seventy-five thousand (75,000): Provided, That in no
case shall the required petitioners be less than five thousand (5,000);

(3) At least fifteen percent (15%) in the case of local government units with a voting population of at
least seventy-five thousand (75,000) but not more than three hundred thousand (300,000): Provided,
however, That in no case shall the required number of petitioners be less than fifteen thousand
(15,000); and

(4) At least ten percent (10%) in the case of local government units with a voting population of over
three hundred thousand (300,000): Provided, however, That in no case shall the required petitioners be
less than forty-five thousand (45,000)

(b) The process of recall shall be effected in accordance with the following procedure:
(1) A written petition for recall duly signed by the representatives of the petitioners before the election
registrar or his representative, shall be filed with the Comelec through its office in the local government
unit concerned.

(2) The petition to recall shall contain the following:

(a) The names and addresses of the petitioners written in legible form and their signatures;

(b) The barangay, city or municipality, local legislative district and the province to which the petitioners
belong;

(c) The name of the official sought to be recalled; and

(d) A brief narration of the reasons and justifications therefor.

(3) The Comelec shall, within fifteen (15) days from the filing of the petition, certify to the sufficiency of
the required number of signatures. Failure to obtain the required number of signatures automatically
nullifies the petition;

(4) If the petition is found to be sufficient in form, the Comelec or its duly authorized representative
shall, within three (3) days from the issuance of the certification, provide the official sought to be
recalled a copy of the petition, cause its publication in a national newspaper of general circulation and a
newspaper of general circulation in the locality, once a week for three (3) consecutive weeks at the
expense of the petitioners and at the same time post copies thereof in public and conspicuous places
for a period of not less than ten (10) days nor more than twenty (20) days, for the purpose of allowing
interested parties to examine and verify the validity of the petition and the authenticity of the signatures
contained therein.

(5) The Comelec or its duly authorized representatives shall, upon issuance of certification, proceed
independently with the verification and authentication of the signatures of the petitioners and registered
voters contained therein. Representatives of the petitioners and the official sought to be recalled shall
be duly notified and shall have the right to participate therein as mere observers. The filing of any
challenge or protest shall be allowed within the period provided in the immediately preceding paragraph
and shall be ruled upon with finality within fifteen (15) days from the date of filing of such protest or
challenge;

(6) 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.

SEC 2. Section 71, Chapter 5, Title One, Book I of the Republic Act No. 7160, Local Government
Code of 1991, is hereby amended to read as follows:

(1) SEC. 71. Election on Recall. Upon the filing of a valid petition for recall with the appropriate local
office of the Comelec, the Comelec or its duly authorized representative shall set the date of the
election or recall, which shall not be later than thirty (30) days upon the completion of the procedure
outlined in the preceding article, in the case of the barangay, city or municipal officials, and forty-five
(45) days in the case of provincial officials. The 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.
SEC 3. All pending petitions for recall initiated through the Preparatory Recall Assembly shall be
considered dismissed upon the effectivity of this Act.

SEC 4. All laws, presidential decrees, executive orders, issuances, and rules and regulations, and parts
thereof, which are inconsistent with the provisions of this Act, are hereby repealed or modified
accordingly.

SEC 5. This Act shall take effect fifteen (15) days after its publication in the Official Gazette or in at
least two (2) national newspapers of general circulation.

MAYOR RICARDO M. ANGOBUNG, petitioner, vs. COMMISSSION ON ELECTIONS EN BANC, and

HERMOSISIMA, JR., J.:

Before us on certiorari is a petition seeking to annul and set aside Resolution No. 96-2951[1] dated
October 15, 1996 issued by public respondent Commission on Elections (COMELEC) which (1)
approved the Petition for Recall filed and signed by only one registered voter - herein private
respondent Ma. Aurora Siccuan de Alban, against petitioner - incumbent Mayor Ricardo Angobung; (2)
set the further signing of said petition by the rest of the registered voters of Tumauini, Isabela on
November 9, 1996; and (3) in case the said petition is signed by at least 25% of the total number of
registered votes in Tumauni, Isabela, scheduled the recall election on December 2, 1996.

On October 25, 1996, this court issued a Temporary Restraining Order[2] enjoining public respondent
COMELEC from implementing and enforcing Resolution No. 96-2951.

The facts of this case are not disputed.

Petitioner won as the duly elected Mayor of the Municipality of Tumauini, Isabela in the local elections
of 1995. He garnered 55% of all the votes cast. Private respondent de Alban was also a candidate in
said elections.

Sometime in early September, 1996, private respondent filed with the Local Election Registrar in
Tumauni, Isabela, a Petition for Recall[3] against petitioner. On September 12, 1996, petitioner
received a copy of this petition. Subsequently said petition was forwarded to the Regional Office in
Tuguegarao, Cagayan and then to the main office of COMELEC in Manila, for approval.

Acting on the petition, Deputy Executive Director for Operations Pio Jose Joson submitted to the
COMELEC En Banc, a Memorandum[4] dated October 8, 1996 recommending approval of the petition
for recall filed by private respondent and its signing by other qualified voters in order to garner at least
25% of the total number of registered voters as required by Section 69(d) of the Local Government
code of 1991.

In turn acting on the abovementioned Memorandum of Deputy Executive Director Joson, the
COMELEC en banc issued the herein assailed Resolution No. 96-2951.

Petitioner now attacks the aforementioned resolution as being unconstitutional and therefore invalid, on
two main grounds: (1) that the resolution approved the Petition for Recall albeit same was signed by
just one person in violation of the statutory 25% minimum requirement as to the number of signatures
supporting and petition for recall; and (2) that the resolution scheduled the recall election within one (1)
year from the May 12, 1997 Barangay Elections.

In at least three (3) urgent motions, private respondent has sought the lifting of the Temporary
Retraining Order issued last October 25, 1996 on the twin grounds (1) that the issue of the one-year
bar on recall elections has been resolved in the case of Paras v. COMELEC[5] promulgated on
November 4, 1996; and (2) that the procedure prescribed by Resolution No. 96-2951 involving petition
signing upon initiation of even just one person, is no different from that provided for in COMELEC
Resolution No. 2272 which was upheld as constitutional in the 1991 cases of Sanches, et al. v.
COMELEC[6] and Evardone v. COMELEC[7]

Private respondent is correct in saying that in the light of our pronouncement in Paras v. COMELEC[8],
the recall election scheduled on December 2, 1996 in the instant case cannot be said to be barred by
the May 12, 1997 Barangay Elections. In construing the meaning of the term, regular local election in
Section 74 of the Local Government Code of 1991 which provides that no recall shall take place within
one (1) year x x x immediately preceding a regular local election, we ruled that for the time bar to apply,
the approaching regular local election must be one where the position of the official to be recalled, is to
be actually contested and filled by the electorate. Thus, in the instant case where the time bar is being
invoked by petitioner mayor in view of the approaching Barangay Elections in May 1997, there can be
no application of the one year bar, hence no invalidity may be ascribed to Resolution No. 96-2951 on
this ground.

We, however, find petitioners second ground to be impressed with merit.

Before the enactment of the 1991 Local Government Code, the recall of public officials voted for in
popular elections, was governed by Sections 54 to 59 of Batas Pambansa Blg. 337, otherwise known
as the Local Government Code of 1983. Pursuant to Section 59 thereof, which states that the
Commission on Elections shall conduct and supervise the process of and election on recall x x x and, in
pursuance thereof, promulgate the necessary rules and regulations, the COMELEC promulgated
Resolution No. 2272 Sections 4 and 5 of which provide as follows:

Sec. 4. How instituted. - The recall of an elective provincial, city or municipal official shall be
commenced by the filing of a duly verified notice of recall containing the address and precinct number
of the voter filing the notice, and the name of the official sought to be recalled, his position, and the
ground(s) for the recall. Each notice shall refer to only one official.lex

The notice shall be filed in triplicate with the local Election Registrar if the recall involves a city or
municipal official, or with the Provincial Election Supervisor if it involves a provincial official, one copy of
which shall be posted upon receipt thereof on the bulletin board in the city/municipal hall.

If the recall involves a provincial official, two additional copies of the notice shall also be furnished by
the voter filing the notice to the Election Registrar of each city and municipality in the province, one
copy of which shall be posted upon receipt thereof on the bulletin board in the city/municipal hall.

In every case, the voter filing the notice of recall shall furnish a copy thereof to the official sought to be
recalled, the Commission on Elections in Manila and the Election Records and Statistics Department of
the Commission.
Section 5. Schedule and place of signing of the petition. - The Election Registrar shall submit to the
Commission on Elections, not later than ten days from filing of the notice of recall, the schedule of the
signing of the petition to recall for approval and funding x x x.[9]

In the case of Sanchez v. COMELEC[10], petitioners therein contended that the aforegoing Resolution
No. 2272 is unconstitutional there being no legislative enactment yet on [the] mechanism of recall as
mandated under Sec. 3, Art. X of the Constitution[11] It is true, as private respondent asseverates, that
we upheld the constitutionality of Resolution No. 2272, but not because we found nothing
constitutionally infirm about the procedure of allowing the initiatory recall petition to be filed by only one
person. The issue in Sanchez was not this questioned procedure but the legal basis for the exercise by
the COMELEC of its rule-making power in the alleged absence of a grant of such power by an enabling
statute on recall. Thus we ruled:

lexWhile it is true that Sec. 3, Art. X of the Constitution mandates the Congress to enact a local
government code providing among others for an effective mechanism of recall, nothing in said provision
could be inferred the repeal of BP 337, the local government code existing prior to the adoption of the
1987 Constitution. Sec. 3, Art. X of the Constitution merely provides that the local government code to
be enacted by Congress shall be more responsive than the one existing at present. Until such time that
a more responsive and effective local government code is enacted, the present code shall remain in full
force and effect. Thus, under Sec. 3, Art. XVIII, (a)ll existing laws, decrees, executive orders,
proclamations, letters of instructions and other executive issuances not inconsistent with this
Constitution shall remain operative until amended, repealed, or revoked.

Considering that the present local government code (BP 337) is still in effect, respondent COMELECs
promulgation of Resolution No. 2272 is therefore valid and constitutional, the same having been issued
pursuant to Sec. 59 of BP 337. It reads:

Sec. 59. Supervision by the Commission on Elections. - The Commission on Elections shall conduct
and supervise the process of and election on recall x x x and, in pursuance thereof, promulgate the
necessary rules and regulations.[12]

We reiterated the foregoing ruling in the case of Evardone v. COMELEC[13] in this wise:

Article XVIII, Section 3 of the 1987 Constitution expressly provides that all existing laws not inconsistent
with the 1987 Constitution shall remain operative, until amended, repealed or revoked. Republic Act
No. 7160 providing for the Local Government Code of 1991, approved by the President on 10 October
1991, specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of said Act. But the Local
Government Code of 1991 will take effect only on 1 January 1992 and therefore the old Local
Government Code (B.P. Blg. 337) is still the law applicable to the present case.

xxx

Chapter (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local elective
officials. Section 59 expressly authorizes the respondent COMELEC to conduct and supervise the
process of and election on recall and in the exercise of such powers, promulgate the necessary rules
and regulations. x x x Thus, pursuant to the rule-making power vested in respondent COMELEC, it
promulgated Resolution No. 2272 on 23 May 1990.
We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid and
constitutional. Consequently, the respondent COMELEC had the authority to approve the petition for
recall and set the date for the signing of said petition.[14]

In Sanchez and Evardone, the COMELEC prescribed procedure of (1) allowing the recall petition to be
filed by at least one person or by less than 25% of the total number of registered voters and then (2)
inviting voters to sign said petition on a date set for that purpose, was never put to issue. As this is the
crux of the present constitutional challenge, the proper time has come for this court to issue a definitive
ruling on the matter.

Apropos for starters is the following chronicle of the evolution of the mechanism of recall as a mode of
removing a public officer by direction action of the people, essayed in the case of Garcia v.
COMELEC:[15]

Recall is a mode of removal of a public officer by the people before the end of his term of office. The
peoples prerogative to remove a public officer is an incident of their sovereign power and in the
absence of constitutional restraint, the power is implied in all governmental operations. Such power has
been held to be indispensable for the proper administration of public affairs. Not undeservedly, it is
frequently described as a fundamental right of the people in a representative democracy.

Recall as a mode of removal of elective local officials made its maiden appearance in section 2 of
Article XI entitled Local Government, viz:

SEC. 2. The Batasang Pambansa shall enact a local government code which may not thereafter be
amended except by a majority vote of all its Members, defining a more responsive and accountable
local government structure with an effective system of recall x x x

The Batasang Pambansa then enacted BP 337 entitled, The Local Government Code of 1983 Section
54 of its Chapter 3 provided only one mode of initiating the recall elections of local election officials, i.e.,
by petition of at least twenty-five percent (25%) of the total number of registered voters in the local
government unit concerned x x x.

Our legal history does not reveal any instance when this power of recall as provided by BP 337 was
exercised by our people.

In February , 1986, however, our people more than exercised their right of recall for they resorted to
revolution and they booted out of office the highest elective officials of the land. The successful use of
people power to remove public officials who have forfeited the trust of the electorate led to its firm
institutionalization of the 1987 Constitution. Its Articles XIII expressly recognized the Role and Rights of
Peoples Organizations x x x.

Section 3 of its Article X also reiterated the mandate for Congress to enact a local government code
which shall provide for a more responsive and accountable local government structure instituted
through a system of decentralization with effective mechanisms of recall, initiative and referendum x x
x. In response to this constitutional call, Congress enacted R.A. 7160, otherwise known as the Local
Government Code of 1991, which took effect on January 1, 1992.[16]
Section 69(d) of the Local Government Code of 1991 expressly provides that recall of any elective x x x
municipal x x x 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. The law is plain and unequivocal as to what
initiates recall proceedings: only a petition of at least 25% of the total number of registered voters, may
validly initiate recall proceedings. We take careful note of the phrase, petition of at least twenty-five
percent (25%) and point out that the law does not state that the petition must be signed by at least 25%
of the registered voters; rather, the petition must be of or by, at least 25% of the registered voters, i.e.,
the petition must be filed, not by one person only, but by at least 25% of the total number of registered
voters. This is understandable, since the signing of the petition is statutorily required to be undertaken
before the election registrar or his representative, and in the presence of a represetantive of the official
sought to be recalled, and in public place in the x x x municipality x x x.[17] Hence, while the initiatory
recall petition may not yet contain the signatures of at least 25% of the total number of registered
voters, the petition must contain the names of at least 25% of the total number of registered voters in
whose behalf only one person may sign the petition in the meantime.

We cannot sanction the procedure of the filing of the recall petition by a number of people less than the
foregoing 25% statutory requirement, much less, the filing thereof by just one person, as in the instant
case, since this is indubitably violative of clear and categorical provisions of subsisting law.

Our legislators did not peg the voter requirement at 25% out of caprice or in a vacuum. They knew that
this is the requirement under a majority of the constitution and recall statutes in various American states
to the same extent that they were aware of the rationale therefor. While recall was intended to be an
effective and speedy remedy to remove an official who is not giving satisfaction to the electorate
regardless of whether or not he is discharging his full duty to the best of his ability and as his
conscience dictates,[18] it is a power granted to the people who, in concert, desire to change their
leaders for reasons only they, as a collective, can justify. In other words, recall must be pursued by the
people, not just by one disgruntled loser in the elections or a small percentage of disenchanted
electors. Otherwise, its purposes as a direct remedy of the people shall be defeated by the ill motives of
a few among them whose selfish resort to recall would destabilize the community and seriously disrupt
the running of government.

A scrutiny of the rationale underlying the time bar provisions and the percentage of minimum voter
requirement in American recall statutes, unmistakably reveals the vigilance of lawmakers against the
abuse of the power of recall. For instance, the Supreme Court of Illinois held in the case of In Re
Bower[19] that:

[t]the only logical reasons 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 parting voting to remove a newly
elected official before having had sufficient time to evaluate the soundness of his political policies and
decisions. We view the statutory provision requiring the number of petition signers to equal at least 45%
of the total votes case in the last general election for mayor as a further attempt to insure that an official
will not have to defend his policies against frivolous attacks launched by a small percentage of
disenchanted electors.[20]

Along the same lines, the Supreme Court of Colorado held in the case of Bernzen v. City of Boulder[21]
that:

[t]he framers, by requiring that a recall petition contain the signatures of at least 25% of all votes cast in
the last election for all candidates for the position which the person sought to be recalled occupies,
assured that a recall election will not be held in response to the wishes of a small and unrepresentative
minority. However, once at least 25% of the electorate have expressed their dissatisfaction, the
constitution reserves the recall power to the will of the electorate.[22]

And in the case of Wallace v. Tripp[23], the Supreme Court of Michigan, echoed the foregoing
posturings in this wise:

Much of what has been said to justify a limit upon recall clearly not provided or contemplated by the
Constitution has revealed fears about an irresponsible electorate xxx. A much cited Nebraska case
pertaining to a Nebraska recall statute provides some answers which are equally applicable to the
Michigan constitutional right of recall:

xxx Doubtless the provision requiring 30 per cent of the electors to sign the petition before the council
[is] compelled to act was designed to avoid such a contingency. The legislature apparently assumed
that nearly one-third of the electorate would not entail upon the taxpayers the cost of an election unless
the charges made approved themselves to their understanding and they were seriously dissatisfied with
the services of the incumbent of the office.[24]

In the instant case, this Court is confronted with a procedure that is unabashedly repugnant to the
applicable law and no less such to the spirit underlying that law. Private respondent who is a lawyer,
knows that Section 69(d) of the Local Government Code plainly provides that recall is validly initiated by
a petition of 25% of the total number of registered voters. Notwithstanding such awareness, private
respondent proceeded to file the petition for recall with only herself as the filer and initiator. She claims
in her petition that she has, together with many others in Tumauini, Isabela, lost confidence in the
leadership of petitioner. But the petition does not bear the names of all these other citizens of Tumauini
who have reportedly also become anxious to oust petitioner from the post of mayor. There is no doubt
that private respondent is truly earnest in her cause, and the very fact that she affixed her name in the
petition shows that she claims responsibility for the seeming affront to petitioners continuance in office.
But the same cannot be said of all the other people whom private respondent claims to have
sentiments similar to hers. While the people are vested with the power to recall their elected officials,
the same power is accompanied by the concomitant responsibility to see through all the consequences
of the exercise of such power, including rising above anonymity, confronting the official sought to be
recalled, his family, his friends, and his supporters, and seeing the recall election to its ultimate end.
The procedure of allowing just one person to file the initiatory recall petition and then setting a date for
the signing of the petition, which amounts to inviting and courting the public which may have not, in the
first place, even entertained any displeasure in the performance of the official sought to be recalled, is
not only violative of statutory law but also tainted with an attempt to go around the law. We can not and
must not, under any and all circumstances, countenance a circumvention of the explicit 25% minimum
voter requirement in the initiation of the recall process.

WHEREFORE, premises considered, the PETITION FOR CERTIORARI is hereby GRANTED.

The RESTRAINING ORDER heretofore issued is hereby made permanent. Costs against private
respondent. SO ORDERED.