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SEPARATE AND DISSENTING OPINION

KAPUNAN, J.:

With utmost due respect, I am constrained to disagree with the main opinion that the term "recall" under Section 74(b) of Republic Act No. 7160, otherwise known as the Local Government Code, refers to the recall election alone Section 74 provide:

Sec. 74. Limitation on Recall.-

(a) Any elective 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 year from the date of the official's assumption of office.

Mayor Claudio won the mayoralty race in Pasay City in the 11 May 1998 elections. He assumed office on 1 July 1998.¹ Less than 10 months thereafter, or on 29 May 1999, the People's Recall Assembly (PRA) of Pasay City convened and passed a resolution to initiate the recall of Mayor Claudio.² On 2 July 1999, a petition for the recall of Mayor Claudio was filed with the Commission on Elections (COMELEC).³ In a Resolution, promulgated on 18 October 1999, rendered in E.M. No. 99-005 (RCL), the COMELEC resolved to approve and give due course to the petition for recall. The COMELEC, construing that the word "recall" only begins upon "the time of filing of the recall petition in the Office of the Election Officer of Pasay City up to the date of recall election,"⁴ ruled that since the petition was filed on 2 July 1999, the same was already outside the prohibited period of one (1) year after Mayor Claudio assumed his office on 1 July 1998.⁵ Hence, the present case where the majority found that the COMELEC did not abuse its discretion in issuing the assailed resolution.

Contrary to the majority view, I humbly submit that "recall" under Section 74(b) is not limited to the election itself, but, rather, it is a process which begins once the PRA makes its first affirmative acts towards the recall of the elective local official concerned, i.e. the convening of the PRA and the passing by the PRA of a recall resolution during a session called for the said purpose, and culminates with the holding of the recall election.

The majority opinion concedes that it "can agree that a process which begins with the convening of the preparatory recall assembly on the gathering of the signatures at least 25% of the registered voters of a local government unit." Yet, it maintains that "recall" as used in paragraph (b) of Section 74 "refers to the election itself by means of which the voters decide whether they should retain their local official or elect his replacement."

The majority opines that the power of recall can be exercised solely by the electorate and not by the PRA through "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." This is so since the majority equates the power of recall with the electorate's power to replace or retain the local official concerned during the recall elections. In furtherance of this premise, the majority concludes that since the "power vested on the electorate is not the power to initiate the recall proceedings but the power to elect an official into office, the limitations in 74 cannot be deemed to apply to the entire recall proceedings." I beg to disagree.

Since our form of government is a representative democracy, it cannot be claimed that the initiation of the recall process by the PRA is not an initiation by the people. This was explained by the Court in the case of Garcia vs. Commission on Elections,⁶ wherein it was said:

Again, the contention cannot command our concurrence. Petitioners have misconstrued the nature of the initiatory process of recall by the PRAC. They have embraced the view that initiation by the PRAC is not initiation by the people. This is a misimpression for 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. Nothing less than the paramount task of drafting our Constitution is delegated by the people to their representatives, elected either to act as a constitutional convention or as a congressional constituent assembly. The initiation of a recall process is a lesser act and there is no rhyme or reason why it cannot be entrusted to and exercised by the elected representatives of the People.[7]

It must be noted that in the above quotation, as well as in all the discussions in the Garcia case, recall is always described and referred to as a process. The Garcia case does not, either directly or impliedly, state that the term "recall" in Section 74(b) is confined solely to the recall election alone. Garcia explains that recall as a process which begins with the convening of the PRA coupled with the passing of a recall resolution and culminating with the recall election itself.⁸ It is the PRA resolution which paves the way for the official sought to be recalled to appear before the electorate so he can justify why he should be allowed to continue in office.⁹ Thereafter, to determine whether the elected official still retains the confidence of the people, a recall election is held. Thus, the recall process may be considered as composed of two distinct but continuous phases, namely: the initiatory phase and the election phase. As such, for purposes of determining whether the recall was instituted within the allowable period under Section 74(b), the reckoning point should be the initiatory phase which is the time of convening and passing of the recall resolution. This should be so since it is from this moment that the process of recall comes into being. It is at this precise moment when the PRA, as representatives of the electorate, concretizes its stand and makes an affirmative act of its intent to recall the elected local official. Nonetheless, it is still up to the people to affirm or reject the move to recall the incumbent official during the election called for the purpose.

The underlying reason behind the time bar provisions, as pronounced by the Court in Angobung vs. COMELEC,¹⁰ is to guard against the abuse of the power of recall. In so holding, the Court authoritatively cited the case of In Re Bower,¹¹ stating that "the only logieason which we can ascribe for requiring the electors to wait one year before petitioning for a recall 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 phrase "premature action" logically refers to any activity geared towards removing the incumbent official without waiting for sufficient time to elapse to evaluate his performance in office. The convening of the PRA and the passing of the questioned recall resolution in this case were actions or activities proscribed by law, rendering the entire recall process invalid. The term "recall" under Section 74(b) being a process which begins with the convening of the PRA and the passing of the recall resolution, such initiatory exercises within the prohibited period tend to disrupt the workings of a local government unit and are deleterious to its development and growth.

In a political culture like ours where a losing candidate does not easily concede defeat as demonstrated by numerous election protests pending before our courts and in the COMELEC, all that a disgruntled candidate has to do to undermine the mandate of the victor is to court the other local officials in order to set the stage for the convening of a PRA and the passage of a recall resolution. After this, all that needs to be done is to wait for the lapse of the first time bar and, thereafter, file the petition for recall. In the meantime, the incumbent official sought to be removed and his political opponents engage in a full-scale election campaign which is divisive, destabilizing and disruptive, with its pernicious effects taking their toll on good governance.

In this regard, Senator Aquilino Pimentel, the main author of the Local Government Code of 1991, in his book entitled "The Local Government Code of 1991: The Key to National Development," explained:

Recall resolutions or petitions may not be usedwhimsically. In fact, they can be resorted to only once during the term of the elective official sought to be recalled. And since there is a prohibition against recalls within the first year of an officials term of office, and within one year immediately preceding a regular local election, the move to recall can only be done in the second year of the three year term of local elective officials.[12]x

It can readily be observed that Senator Pimentel used the phrase "move to recall" in describing the activity which can only be undertaken during the freedom period. This is significant because the use of the phrase "move to recall" is instructive of the concept envisioned by the primary author of the law in providing for the limitations on recall. It connotes a progressive course of action or a step-by-step process. As such, the word "move," when used in conjunction with the word '"recall," can pertain to no other than the entire recall process which begins with the convening of the PRA and the passing of the recall resolution and ending with the recall election. It cannot, by any stretch of imagination, be construed as referring to the election alone.

I cannot subscribe to the observation of the majority that to construe the limitation in Section 74 (b) "as including the initiation of recall proceedings would unduly curtail freedom of speech and of assembly guaranteed by the Constitution." The people can assemble and discuss their opinions and grievances against the incumbent official, at anytime during his term and as often as they would like, because it is their right to do so. An exercise of their right to peaceably assemble and exchange views about the governance of the local official would not be violative of the limitations set forth in Section 74(b). However, once notice is sent, during the prohibited period, stating that the purpose of the meeting is to convene the PRA and to pass a recall resolution, and the same is actually approved, then Section 74(b) is transgressed. In this instance, the limitation of the electorate's freedom of speech and assembly is not violated since the time bar provision is imposed by the legislature in the exercise of its police power. The limitation in Section 74(b) is analogous to the prohibition under Section 80 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, which prohibits a person from engaging in any election campaign or partisan political activity except during the campaign period.¹³ The limitation on the freedom of speech and assembly imposed by Section 80 has never been questioned as being unconstitutional.

Finally, I do not find any logieason to support the view that the recall process should be counted only from the time of the filing of the recall resolution or petition with the COMELEC. Although the filing of the petition for recall with the COMELEC is, admittedly, an important component in the recall process, it, however, cannot be considered as the starting point of the same. The filing of the petition, being merely a consequential mechanical act, is just a next step in the process of recall after PRA's acts of convening the recall assembly and passing the recall resolution. Once a petition for recall is filed, the only role of the COMELEC is the verification of its authenticity and genuineness. After such verification the COMELEC is mandated by law to set the date of the recall election. Clearly, the role of the COMELEC in the recall process under Section 70 of R.A. 7160 is merely ministerial in nature. Such being the case, it cannot be correctly argued that the crucial moment in the recall process is the actual filing of the petition with the COMELEC.

I vote, therefore, to grant the petition. KAPUNAN, J

¹ Rollo, p. 54.

² Id., at 29.

³ Id., at 54.

⁴ Id., at 54.

⁵ Ibid.

⁶ 227 SCRA 100 (1993)

⁷ Id., at 114. Underscoring supplied.

⁸ Id., at 114-115.

⁹ Id., at 115.

¹⁰ 269 SCRA 245 (1997)

¹¹ 41 Ill. 777, 242 N.E. 2nd 252 (1968)

¹² Pimentel, The Local Government Code of 1991: The key to National Development, p. 187. Emphasis supplied.

¹³ SEC. 80. Election campaign or partisan political activity outside campaign period. It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period: Provided, That political parties may hold political conventions or meeting to nominate their official candidates within thirty days before the commencement of the campaign period and forty-five days for Presidential and Vice-Presidential election.