RICARDO M. ANGOBUNG,
G. R. No. 126576
March 5, 1997
ON ELECTIONS EN BANC
E C I S I O N
and ATTY. AURORA S. DE ALBAN,
HERMOSISIMA, JR., J.:
Before Us on
certiorari is a petition seeking
to annul and set aside Resolution No. 96-2951
dated October 15, 1996 issued by public respondent Commission on
[COMELEC] which  approved the Petition for Recall filed and signed
only one registered voter herein private respondent Ma. Aurora
de Alban, against petitioner incumbent Mayor Ricardo Angobung;
set the further signing of said petition by the rest of the registered
voters of Tumauini, Isabela on November 9, 1996; and  in case the
petition is signed by at least 25% of the total number of registered
in Tumauini, Isabela, scheduled the recall election on December 2, 1996.
On October 25,
1996, this court issued a Temporary
enjoining public respondent COMELEC from implementing and enforcing
The facts of this
case are not disputed.cralaw
Petitioner won as
the duly elected Mayor of the
Municipality of Tumauini, Isabela in the local elections of 1995. He
55% of all the votes cast. Private respondent de Alban was also a
in said elections. Sometime in early September, 1996, private
filed with the Local Election Registrar of Tumauini, Isabela, a
against petitioner. On September 12, 1996, petitioner received a copy
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.cralaw
Acting on the
petition, Deputy Executive Director
for Operations Pio Jose Joson submitted to the COMELEC En Banc, a
dated October 8, 1996 recommending approval of the petition for recall
filed by private respondent and its signing by other qualified voters
order to garner at least 25% of the total number of registered voters
required by Section 69[d] of the Local Government Code of 1991. In turn
acting on the abovementioned Memorandum of Deputy Executive Director
the COMELEC en banc issued the herein assailed Resolution No. 96-2951.cralaw
attacks the aforementioned resolution
as being unconstitutional and therefore invalid, on two main grounds:
that the resolution approved the Petition for Recall albeit same was
by just one person in violation of the statutory 25% minimum
as to the number of signatures supporting any petition for recall; and
 that the resolution scheduled the recall election within one 
from the May 12, 1997 Barangay Elections.cralaw
In at least three
 urgent motions, private
respondent has sought the lifting of the Temporary Restraining Order
last October 25, 1996 on the twin grounds:  that the issue of the
bar on recall elections has been resolved in the case of Paras v.
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
of Sanchez, et al. v. COMELEC
and Evardone v. COMELEC.
respondent is correct in saying that in
the light of our pronouncement in Paras v. COMELEC,
the recall election scheduled on December 2, 1996 in the instant case
be said to be barred by the May 12, 1997 Barangay Elections. In
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  year immediately preceding a regular local
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.cralaw
We, however, find
petitioner's second ground to
be impressed with merit.cralaw
enactment of the 1991 Local Government
Code, the recall of public officials voted for in popular elections,
governed by Sections 54 to 59 of Batas Pambansa Blg. 337, otherwise
as the Local Government Code of 1983. Pursuant to Section 59 thereof,
states that "the Commission on Elections shall conduct and supervise
process of and election on recall and, in pursuance thereof, promulgate
the necessary rules and regulations," the COMELEC promulgated
No. 2272 Sections 4 and 5 of which provide as follows:
Sec. 4. How instituted.-
of an elective provincial, city or municipal official shall be
by the filing of a duly verified notice of recall containing the
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. The notice
shall be filed in triplicate with the local Election Registrar if the
involves a city or municipal official, or with the Provincial Election
Supervisor if it involves a provincial official, one copy of which
be posted upon receipt thereof on the bulletin board in the
If the recall involves a provincial
two additional copies of the notice shall also be furnished by the
filing the notice to the Election Registrar of each city and
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
the Commission on Elections in Manila and the Election Records and
Department of the Commission.
Sec. 5. Schedule and place of
petition.- The Election Registrar shall submit to the
on Elections, not later than ten days from filing of the notice of
the schedule of the signing of the petition to recall for approval and
In the case of
Sanchez v. COMELEC
petitioners therein contended that the foregoing "Resolution No. 2272
unconstitutional there being no legislative enactment yet on [the]
of recall as mandated under Sec. 3, Art. X of the Constitution".
It is true, as private respondent asseverates, that we upheld the
of Resolution No. 2272, but not because we found nothing
infirm about the procedure of allowing the initiatory recall petition
be filed by only one person. The issue in Sanchez was not this
procedure but the legal basis for the exercise by the COMELEC of its
power in the alleged absence of a grant of such power by an enabling
on recall. Thus We ruled:
While it is true that Sec. 3, Art. X of
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
prior to the adoption of the 1987 Constitution. Sec. 3, Art. X of the
merely provides that the local government code to be enacted by
shall be "more responsive" than the one existing at present. Until such
time that a more responsive and effective local government code is
the present code shall remain in full force and effect. Thus, under
3, Art. XVIII, (a)ll existing laws, decrees, executive orders,
letters of instructions and other executive issuances not inconsistent
with this Constitution shall remain operative until amended, repealed,
Considering that the present Local
Code [B. P. 337] is still in effect, respondent COMELEC's promulgation
of Resolution No. 2272 is therefore valid and constitutional, the same
having been issued pursuant to Sec. 59 of B. P. 337. It reads:
Sec. 59. Supervision by the
Elections.- The Commission on Elections shall conduct and
the process of and election on recall and, in pursuance thereof,
the necessary rules and regulations.
the foregoing ruling in the case of
in this wise:
Article XVIII, Section 3 of the 1987
expressly provides that all existing laws not inconsistent with the
Constitution shall remain operative, until amended, repealed or
Republic Act No. 7160 providing for the Local Government Code of 1991,
approved by the President on 10 October 1991, specifically repeals B.
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
the old Local Government Code [B. P. Blg. 337] is still the law
to the present case.
Chapter [Sections 54 to 59] of B. P. Blg.
provides for the mechanism for recall of local elective officials.
59 expressly authorizes the respondent COMELEC to conduct and supervise
the process of and election on recall and in the exercise of such
promulgate the necessary rules and regulations. Thus, pursuant to
the rule-making power vested in respondent COMELEC, it promulgated
No. 2272 on 23 May 1990.
We, therefore, rule that Resolution No.
promulgated by respondent COMELEC is valid and constitutional.
the respondent COMELEC had the authority to approve the petition for
and set the date for the signing of said petition.
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
inviting voters to sign said petition on a date set for that purpose,
never put to issue. As this is the crux of the present constitutional
the proper time has come for this court to issue a definitive ruling on
starters is the following chronicle
of the evolution of the mechanism of recall as a mode of removing a
officer by direct action of the people, essayed in the case of Garcia
Recall is a mode of removal of a public
by the people before the end of his term of office. The people's
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
the proper administration of public affairs. Not undeservedly, it is
described as a fundamental right of the people in a representative
Recall as a mode of removal of elective
officials made its maiden appearance in Section 2 of Article XI
Local Government, viz.:
Sec. 2. The Batasang Pambansa shall
government code which may not thereafter be amended except by a
vote of all its Members, defining a more responsive and accountable
government structure with an effective system of recall.
The Batasang Pambansa then enacted B. P. 337
"The Local Government Code of 1983. Section 54 of its Chapter 3
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
number of registered voters in the local government unit concerned.
history does not reveal any instance when
this power of recall as provided by BP 337 was exercised by our people.
1986, however, our people more than
exercised their right of recall for they resorted to revolution and
booted out of office the highest elective officials of the land. The
use of people power to remove public officials who have forfeited the
of the electorate led to its firm institutionalization of the 1987
Its Article XIII expressly recognized the Role and Rights of People's
Section 3 of its Article X also reiterated the mandate for Congress to
enact a local government code which "shall provide for a more
and accountable local government structure instituted through a system
of decentralization with effective mechanisms of recall, initiative and
referendum. In response to this constitutional call, Congress enacted
A. 7160, otherwise known as the Local Government Code of 1991, which
effect on January 1, 1992."
Section 69 [d] of
the Local Government Code of
1991 expressly provides that "recall of any elective municipal official
may also be validly initiated upon petition of at least twenty-five
[25%] of the total number of registered voters in the local government
unit concerned during the election in which the local official sought
be recalled was elected". The law is plain and unequivocal as to what
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
and point out that the law does not state that the petition must be
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
be filed, not by one person only, but by at least 25% of the total
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
of the official sought to be recalled, and in a public place in the
Hence, while the initiatory recall petition may not yet contain the
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
voters in whose behalf only one person may sign the petition in the
sanction the procedure of the filing
of the recall petition by a number of people less than the foregoing
statutory requirement, much less, the filing thereof by just one
as in the instant case, since this is indubitably violative of clear
categorical provisions of subsisting law. Our legislators did not
peg the voter requirement at 25% out of caprice or in a vacuum. They
that this is the requirement under a majority of the constitutions 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
effective and speedy remedy to remove an official who is not giving
to the electorate regardless of whether or not he is discharging his
duty to the best of his ability and as his conscience dictates
it is a power granted to the people who, in concert, desire to change
leaders for reasons only they, as a collective, can justify. In other
recall must be pursued by the people, not just by one disgruntled loser
in the elections or a small percentage of disenchanted electors.
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
the community and seriously disrupt the running of government.cralaw
A scrutiny of the
rationale underlying the time
bar provisions and the percentage of minimum voter requirement in
recall statutes, unmistakably reveals the vigilance of lawmakers
the abuse of the power of recall. For instance, the Supreme Court of
held in the case of In Re Bower
[t]he only logical reason which we can
for requiring the electors to wait one year before petitioning for a
election is to prevent premature action on their part in voting to
a newly elected official before having had sufficient time to evaluate
the soundness of his political policies and decisions. We view the
provision requiring the number of petition signers to equal at least
of the total votes case in the last general election for mayor as a
attempt to insure that an official will not have to defend his policies
against frivolous attacks launched by a small percentage of
Along the same
lines, the Supreme Court of Colorado
held in the case of Bernzen, v. City of Boulder
[t]he framers, by requiring that a recall
contain the signatures of at least 25% of all votes cast in the last
for all candidates for the position which the person sought to be
occupies, assured that a recall election will not be held in response
the wishes of a small and unrepresentative minority. However, once at
25% of the electorate have expressed their dissatisfaction, the
reserves the recall power to the will of the electorate.
And in the case
of Wallace v. Tripp,
the Supreme Court of Michigan echoed the foregoing posturings in this
Much of what has been said to justify a
upon recall clearly not provided or contemplated by the Constitution
revealed fears about an irresponsible electorate. A much cited
case pertaining to a Nebraska recall statute provides some answers
are equally applicable to the Michigan constitutional right of recall:
Doubtless the provision requiring 30
of the electors to sign the petition before the council [is] compelled
to act was designed to avoid such a contingency. The Legislature
assumed that nearly one-third of the electorate would not entail upon
taxpayers the cost of an election unless the charges made approved
to their understanding and they were seriously dissatisfied with the
of the incumbent of the office.
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
provides that recall is validly initiated by a petition of 25% of the
number of registered voters. Notwithstanding such awareness, private
proceeded to file the petition for recall with only herself as the
and initiator. She claims in her petition that she has, together with
others in Tumauini, Isabela, lost confidence in the leadership of
But the petition does not bear the names of all these other citizens of
Tumauini who have reportedly also become anxious to oust petitioner
the post of mayor. There is no doubt that private respondent is truly
in her cause, and the very fact that she affixed her name in the
shows that she claims responsibility for the seeming affront to
continuance in office. But the same cannot be said of all the other
whom private respondent claims to have sentiments similar to hers.
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
above anonymity, confronting the official sought to be recalled, his
his friends, and his supporters, and seeing the recall election to its
ultimate end. The procedure of allowing just one person to file the
recall petition and then setting a date for the signing of the
which amounts to inviting and courting the public which may have not,
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
must not, under any and all circumstances, countenance a circumvention
of the explicit 25% minimum voter requirement in the initiation of the
premises considered, the Petition for
Certiorari is hereby granted. COMELEC Resolution No. 96-2951 is hereby
declared null and void and accordingly set aside.cralaw
order heretofore issued is hereby
made permanent. Costs against private respondent.cralaw
Padilla, Regalado, Davide,
Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban and Torres, Jr., JJ., concur.cralaw
Certified true copy of excerpt from the Minutes of the Regular En Banc
Meeting of the Commission on Elections held on October 15, 1996, Rollo,
Rollo, p. 44.
Rollo, pp. 26-32.
Rollo, pp. 39-42.
G. R. No. 123169.
193 SCRA 317.
204 SCRA 464.
G. R. No. 123169, promulgated on November 4, 1996.
Comment of the Solicitor General dated November 15, 1996, pp. 6-7,
193 SCRA 317.
Id., p. 320.
204 SCRA 464.
Id., p. 470.
227 SCRA 100 .
Id., pp. 108-110.
Sec. 69 [d , Local Government Code of 1991.
Dunham v. Ardery, 43 Okl. 619, 143 P. 331.
41 III. 777, 242 Ne 2D, 252.
Id., p. 255.
186 Colo. 81, 525 P. 2d 416.
Id., p. 419.
358 Mich. 668, 101 N.W. 2d 312.
Id., pp. 314-315.