GARCIA V.

COMELEC 227 SCRA 100 PUNO, October 5, 1993

NATURE Original Petition and the Supplemental Petition assailing the constitutionality of section 70 of R.A. 7160 insofar as it allows a preparatory recall assembly to initiate the recall of local elective officials FACTS -May 11, 1992, Enrique Garcia (petitioner) was elected governor of Bataan. -BUT in the early evening of July 1, some mayors, vice-mayors and members of the Sangguinang Bayan of the 12 municipalities of Bataan met at the NPC Compound and the following day, they proceeded to constitute themselves into a Preparatory Recall Assembly (PRAC) to initiate the recall election of PETITIONER. They chose Mayor De los Reyes (Mariveles) as Presiding Officer and Mayor Payumo (Dinalupihan) as Secretary of the assembly. Vice-Mayor Roque (Limay) moved that a resolution1 be passed for the recall of PETITIONER on the ground of loss of confidence, which was unanimously seconded. -July 7, PETITIONER filed with COMELEC a petition to deny due course to Resolution No. 1 alleging failure of PRAC to comply with the "substantive and procedural requirements" laid down in Section 70 of R.A. 7160 (LGC) -COMELEC: DISMISS petition, schedule recall elections on October 11. -PETITIONER filed petition for certiorari and prohibition with writ of preliminary injunction to annul COMELEC Resolution (arguments): a. Sec. 70, LGC unconstitutional because: (1) the people have the sole and exclusive right to decide whether or not to initiate recall proceedings, (2) it violated the right of elected local public officials belonging to the political minority to equal protection of law. b. the proceedings followed by the PRAC in passing Resolution No. 1 suffered from numerous defects, the most fatal of which was the deliberate failure to send notices of the meeting to sixty-five (65) members of the assembly. -SC: ordered respondents to file Comments, set petition for hearing. After hearing, granted petition on the narrow ground that the sending of selective notices to members of the PRAC violated the due process protection of the Constitution and fatally flawed the enactment of Resolution No. 1 (and not ruling on alleged constitutional infirmity of Sec.70). -In accord with the SC Resolution, Mayor De los Reyes AGAIN sent NOTICE OF SESSION to the members of the PRAC to convene and once more, PRAC passed a resolution calling for the recall of PETITIONER -Petitioner filed a supplemental Petition Petition and Reiteration of Extremely Urgent Motion presiding for a resolution of their contention that section 70 of R.A. 7160 is unconstitutional: a. the right to recall does not extend merely to the prerogative of the electorate to reconfirm or withdraw their confidence on the official sought to be recalled at a special election. Such prerogative necessarily includes the sole and exclusive right to decide on whether to initiate a recall proceedings or not b. in passing Resolution No. 1, the Bataan Preparatory Recall Assembly did not only initiate the process of recall but had de facto recalled petitioner Garcia from office, a power reserved to the people alone c. EPC argument: the local officials constituting the majority party can constitute itself into a PRA and initiate the recall of a duly elected provincial official belonging to the minority party thus rendering ineffectual his election by popular mandate ISSUE WON Section 70, of RA 7160 is unconstitutional HELD NO. The petition at bench appears to champion the sovereignty of the people, particularly their direct right to initiate and remove elective local officials thru recall elections. If the petition would succeed, the result will be a return to the previous system of recall elections which Congress found should be improved. The alternative mode of initiating recall proceedings thru a preparatory recall assembly is, however, an innovative attempt by Congress to remove impediments to the effective exercise by the people of their sovereign power to check the performance of their elected officials. The power to determine this mode was specifically given to Congress and is not proscribed by the Constitution. Ratio. (On presumption of validity of laws) Every law enjoys the presumption of validity. The presumption rests on the respect due to the wisdom, integrity, and the patriotism of the legislative, by which the law is passed, and the Chief Executive, by whom the law is approved. For upholding the Constitution is not the responsibility of the judiciary alone but also the duty of the legislative and executive. To strike down a law as unconstitutional, there must be a clear and unequivocal showing that what the fundamental law prohibits, the statute permits. The annulment cannot be decreed on a doubtful and arguable implication. The universal rule of legal hermeneutics is that all reasonable doubts should be resolved in favor of the constitutionality of a law. (RECALL DISCUSSION) Recall is a mode of removal of a public officer by the people before the end of his term of office. The people's 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 our 1973 Constitution (AXI, S2). Pursuant to which, Batasang Pambansa enacted BP 337 (LGC of 1983) wherein Chap3, Sec54 provided only 1 mode of initiating recall elections of local elective officials (by petition of at least twenty-five percent (25%) of the total number of registered \voters in the local government unit concerned)

1RESOLUTION NO. 1
Whereas, the majority of all the members of the Preparatory Recall Assembly in the Province of Bataan have voluntarily constituted themselves for the purpose of the recall of the incumbent provincial governor of the province of Bataan, Honorable Enrique T. Garcia pursuant to the provisions of Section 70, paragraphs (a), (b) and (c) of Republic Act 7160, otherwise known as the Local Government Code of 1991; Whereas, the total number of all the members of the Preparatory Recall Assembly in the province of Bataan is One Hundred and Forty-Six (146) composed of all mayors, vice-mayors and members of the Sangguniang Bayan of all the 12 towns of the province of Bataan; Whereas, the majority of all the members of the Preparatory Recall Assembly, after a serious and careful deliberation have decided to adopt this resolution for the recall of the incumbent provincial governor Enrique T. Garcia for loss of confidence; Now, therefore, be it resolved as it is hereby resolved that having lost confidence on the incumbent provincial governor of Bataan, Enrique T. Garcia, recall proceedings be immediately initiated against him; Resolved Further, that copy of this resolution be furnished the Honorable Commission on Elections, Manila and the Provincial Election Supervisor, Balanga, Bataan. One hundred forty-six (146) names appeared in Resolution No. 1 but only eighty (80) carried the signatures of the members of the PRA. Of the eighty (80) signatures, only seventy-four (74) were found genuine. 3 The PRAC of the province had a membership of one hundred forty-four (144) 4 and its majority was seventy-three (73).

-EDSA REVOLUTION: 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 -1987 Consti: AXIII, Sec 15 and 16 (Peoples Participation) and AX, Sec3(Similar to 1973 Consti) (SEE CONSTI) -RA 7160 was enacted in response to these consti provisions. In this Code, Congress provided for a second mode of initiating the recall process through a preparatory recall assembly which in the provincial level is composed of all mayors, vice-mayors and sanggunian members of the municipalities and component cities2.

-why add a second mode: the idea of empowering a preparatory recall assembly to initiate the recall from office of local elective officials originated from the House of Representatives and not the Senate. The legislative records reveal that there were two (2) principal reasons why this alternative mode of initiating the recall process thru an assembly was adopted, viz: (a) to diminish the difficulty of initiating recall thru the direct action of the people; and (b) to cut down on its expenses. Reasoning. On first argument: Consti did not provide that only the people have the right to decide on WON to initiate a recall; did not provide mode for initiating recall but gave CONGRESS the power to choose the effective mechanism of recall. AND Congress deemed it wise to enact an alternative mode of initiating recall elections to supplement the former mode of initiation by direct action of the people. Congress has made its choice as called for by the Constitution and it is not the prerogative of this Court to supplant this judgment. The choice may be erroneous but even then, the remedy against a bad law is to seek its amendment or repeal by the legislative. By the principle of separation of powers, it is the legislative that determines the necessity, adequacy, wisdom and expediency of any law. -on second argument: Initiation by the PRAC is also initiation by the people, albeit done indirectly through their representatives. It is not constitutionally impermissible for the people to act through their elected representatives. PRA resolution of recall merely starts the process. It is part of the process but is not the whole process. This ought to be self evident for a PRA resolution of recall that is not submitted to the COMELEC for validation will not recall its subject official. Likewise, a PRA resolution of recall that is rejected by the people in the election called for the purpose bears no effect whatsoever. The initiatory resolution merely sets the stage for the official concerned to appear before the tribunal of the people so he can justify why he should be allowed to continue in office. Before the people render their sovereign judgment, the official concerned remains in office but his right to continue in office is subject to question. This is clear in section 72 of the Local Government Code which explicitly states that "the recall of an elective local official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the election on recall." -on EPC argument: The law does not give an asymmetrical treatment to locally elected officials belonging to the political minority. First to be considered is the politically neutral composition of the preparatory recall assembly. Under the law, all mayors, vice-mayors and sangguniang members of the municipalities and component cities are made members of the preparatory recall assembly at the provincial level. Its membership is not apportioned to political parties. No significance is given to the political affiliation of its members. Secondly; the preparatory recall assembly at the provincial level includes all the elected officials in the province concerned. Considering their number, the greater probability is that no one political party can control its majority. Thirdly, sec. 69 of the Code provides that the only ground to recall a locally elected public official is loss of confidence of the people. The members of the PRAC are in the PRAC not in representation of their political parties but as representatives of the people. By necessary implication, loss of confidence cannot be premised on mere differences in political party affiliation. Indeed, our Constitution encourages the multi-party system for the existence of opposition parties is indispensable to the growth and nurture of the democratic system. Clearly then, the law as crafted cannot be faulted for discriminating against elected local officials belonging to the minority. -The fear that a preparatory recall assembly may be dominated by a political party and that it may use its power to initiate the recall of officials of opposite political persuasions, especially those belonging to the minority, is not a ground to strike down the law as unconstitutional. To be sure, this argument has long been in disuse for there can be no escape from the reality that all powers are susceptible of abuse. The mere possibility of abuse cannot, however, infirm per se the grant of power to an individual or entity. To deny power simply because it can be abused by the grantee is to render government powerless and no people need an impotent government. There is no democratic government that can operate on the basis of fear and distrust of its officials, especially those elected by the people themselves. On the contrary, all our laws assume that our officials, whether appointed or elected, will act in good faith and will regularly perform the duties of their office. Such a presumption follows the solemn oath that they took after assumption of office, to faithfully execute all our laws.

CHAPTER 5 -- RECALL By Whom Exercised. -- The power of recall for loss of confidence shall be exercised by the registered voters of a local government unit to which the local elective official subject to such recall belongs. Initiation of the Recall Process.

Sec. 69. Sec. 70.

(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: (1) Provincial level. -- all mayors, vice-mayors and sanggunian 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 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 be validly initiated upon petition of at least twenty-five (25) percent 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. Sec. 71. Election Recall -- 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. Sec. 72. Effectivity of Recall. -- The recall of an elective local official shall be effective only upon the election and proclamation of a successor in the person of the candidate receiving the highest number of votes cast during the

election on recall. Should the official sought to be recalled receive the highest number of votes, confidence in him is thereby affirmed, and he shall continue in office. Sec. 73. Sec. 74. Prohibition from Resignation. -- The elective local official sought to be recalled shall not be allowed to resign while the recall process is in progress. 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 election.

-lack of confidence (vote beyond any inquiry) accdg to Pimentel: "There is only one ground for the recall of local government officials: loss of confidence. This means that the people may petition or the Preparatory Recall Assembly may resolve to recall any local elective officials without specifying any particular ground except loss of confidence. There is no need for them to bring up any charge of abuse or corruption against the local elective officials who are the subject of any recall petition. In the case of Evardone vs. Commission on Elections, the Court ruled that "loss of confidence" as a ground for recall is a political question. In the words of the Court, "whether or not the electorate of the municipality of Sulat has lost confidence in the incumbent mayor is a political question." Disposition. IN VIEW WHEREOF, the original Petition and the Supplemental Petition assailing the constitutionality of section 70 of R.A. 7160 insofar as it allows a preparatory recall assembly to initiate the recall process are dismissed for lack of merit. This Decision is immediately executory. SO ORDERED. SEPARATE OPINIONS QUIASON, J., concurring: -The 1987 Constitution does not prescribe the procedure in the recall of elective officials. The intent is clear that the 1987 Constitution leaves it to Congress to provide the recall mechanism without any pre-ordained restrictions. The broad powers of Congress in prescribing the procedure for recall include the determination as to the number of electors needed to initiate the recall, the method of voting of the electors, the time and place of the voting and whether the process includes the election of the successor of the recalled official. -In the Local Government Code of 1991 (R.A. No. 7160), Congress adopted an alternative procedure for initiating the recall and made it as a mere stage of the recall process. -Congress also deigned it wise to give the electorate a chance to participate in the exercise twice: first, in the initiation of the recall; and, secondly, in the election of the person to occupy the office subject of the recall. This is in contrast with the first recall statute in the Philippines, the Festin Law (Com. Act No. 560) where the participation of the electorate ended after the voting for the recall. In the Festin Law, the electorate were denied the opportunity to vote for the retention of the official subject of the recall. -In a sense, the members of the PRA can be considered as constituting a segment of the electorate because they are all registered voters of the province. If they constitute less than one percent of the voters in the province, that miniscule number goes to the policy, not the validity of the law and the remedy to correct such a flaw is left with the legislature, not with the judiciary. VITUG, J., concurring: -it is not within the province of the courts to question the wisdom of, let alone supplant, legislative judgments laid down by Congress to the extent of its constitutional authority and mandate. -CAUTION against any idea of omnipotence in wielding the "power of recall" conferred to the "Preparatory Recall Assembly." Clearly implicit in any grant of power, like any other right, is an assumption of a correlative duty to exercise it responsibly. When it, therefore, becomes all too evident that there has been an abuse of that authority, appropriate judicial recourse to, and corrective relief by, this Court will not be denied.