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DISSENTING OPINION

PUNO, J.:

The cases at bar are one of first impression. At issue is the meaning of Section 74 (b) of the Local Government Code which provides: "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." Our interpretation of this provision is significant for, to a large extent, it will determine the use or misuse of the right of recall. The right of recall is part of the cutting edge of the sword of the sovereignty of our people, and its exercise should be shielded from abuses.

I begin with the baseline proposition that the proper interpretation of Section 74 (b) of the Local Government Code should depend on the edifying intent of our legislators. With due respect to the majority, I wish to express my humble reading of the intent of our lawmakers when they engrafted the people's right of recall in the corpus of our laws. Our search should start with the Constitution which provides the matrix of our rights. All our fundamental laws¹ set in stone the principle that "the Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them." An important component of this sovereign power is the right of the people to elect officials who will wield the powers of government, i.e., the power to make laws and the power to execute laws. These powers are enormous and in the wrong hands can wreak havoc to the people. Our laws therefore regulate their exercise. Among others, they set minimum qualifications for candidates to elective public office. They safeguard the integrity of the procedure of electing these candidates. They also established an independent COMELEC to enhance the laboratory conditions under which elections must be conducted.

Over the years, however, the country experienced the defilement of these ideals. The wrong officials were able to win the scepters of power, the sanctity of our election process has been breached, and unscrupulous politicians perpetuated themselves in public office. The authoritarian regime that prolonged its reign from 1972 to 1986 demonstrated the need to address these problems with greater resolve. Various schemes were installed in the 1987 Constitution and our statutes. Among them are the provisions limiting terms of offices, banning political dynasties, strengthening the power and independence of the COMELEC, sharpening the accountability of public officials and institutionalizing the power of the people to recall their elected officials.

In the ground breaking case of Garcia v. COMELEC[2] we traced the metamorphosis of the people's right of recall from its diaper days. In Angobung v. COMELEC³ we articulated the rationale of the right of recall, viz.:

"x x x 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, 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 election or a small percentage of disenchanted electors. Otherwise, its purpose 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 America 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 that:

'[t]he only logieason 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 political policies and decisions. We view the statutory provision requiring the number of petition signers to equal at least 45 % of the total votes cast 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.

Along the same lines, the Supreme Court of Colorado held in the case of Bernzen v. City of Boulder 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.'

And in the case of Wallace v. Tripp, 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 x x x. 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:

'x x x 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."

In fine, democratic experience, here and abroad, shows that the right of recall is a double-edged sword. Rightly used, it can promote the greater good. Wrongly used, it can result in greater evil. There are recalls as pointed out in Angobung that should be avoided: (1) recalls borne by the ill motive of a few; (2) recalls that disrupt the smooth running of government; and (3) recalls that destabilize the local government unit. The standard mechanisms in recall statutes to avoid these evils are: (1) the setting of a waiting period before a petition for recall can be initiated, and (2) the fixing of a minimum percentage of voters signatures to kickstart a petition for recall. As clearly explained in Bowers, the reason for fixing a waiting period 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 political policies and decisions." On the other hand, the reason for requiring a minimum number of voters signatures is "to insure that an official will not have to defend his policies against frivolous attacks launched by a small percentage of disenchanted electors." It will further avoid expenditure of public funds for frivolous elections.

I like to focus on the one-year waiting period provided by Section 74 (b) which is the bedrock issue in the cases at bar. Beyond debate, the ideal interpretation of the waiting period must bring about this pristine purpose - - - to give the voters a sound basis for their decision to recall or not to recall an official whom they have elected just a year ago. That sound basis cannot exist in a vacuum. "Sound basis" requires affording the official concerned a fair and reasonable opportunity to accomplish his program for the people. By no means will there be a reasonable opportunity if from Day One after assumption of office, the process of recall can already be initiated against said official. For it cannot be gainsaid that the more disquieting and destabilizing part of recall is its initiation more than the recall election itself. It is in the too early initiatory process where the baseless criticisms and falsehoods of a few are foisted on the many. Premature initiatives to recall an official are resisted with stronger vim and venom. The reasons are obvious to those whose political innocence has long been slain. The incumbent would not like to lose power just recently won. The challenger, often a loser in the previous election, would not want to lose a second time. To allow early recall initiative is to encourage divisive, expensive, wasteful politics. It will also put a premium on the politics of compromise - - - the politics where public interest always comes out second best.

With due respect, the interpretation made by the majority of Section 74 (b) of the Local Government Code, which will countenance recall initiatives right on Day One after an official starts his term of office, will breed these political evils. To be sure, the interpretation is based on a narrow rationale and cannot inspire assent. It starts from the premise that recall is a power given to registered voters and "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 by law. The reasoning is based on the misleading perception that the only participation of the people in recall is on election day when they cast their vote electing or rejecting an incumbent. But the role of the people in recall is not limited to being the judge on election day. In truth, the people participate in the initiation of the recall process. There are two (2) kinds of recall - - - recall initiated directly by the people and recall initiated by the people thru the Preparatory Recall Assembly (PRA). In recall initiated by the people, it is self-evident that the people are involved from beginning to the end of the process. But nothing less is true in recall initiated by the PRA. In Garcia,⁴ we scoured the history of recall and we held: "[p]etitioners 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." We further ruled that "the members of the PRAC are in the PRAC not in representation of their political parties but as representatives of the people."⁵cräläwvirtualibräry

There is another reason why I do not share the majority ruling that the one-year waiting period is a limitation on the right of the people to judge an incumbent on election day itself but not a limitation on their right to initiate the recall process. I submit that the rationale for fixing the election day one year after assumption of office is different from the rationale for prohibiting premature recall initiative. The rationale of the first is for the benefit of the people, to give them sufficient time to assess intelligently the performance of an incumbent. The rationale of the second is for the benefit of the incumbent, to give him a fair chance to govern well, to serve the people minus the unnecessary distractions from the itch of too much politics. The ruling of the majority recognizes the rationale of the first but not the rationale of the second. Its ruling that sanctions too early a recall initiative, and worse, that allows endless recall initiatives will deprive an incumbent a fair opportunity to prove himself thru the politics of performance.

The majority also holds that "to construe the limitation in paragraph (b) as including the initiation of recall proceedings would unduly curtail freedom of speech and assembly." Again, I beg to disagree. A dredging even of the subterranean meanings of freedom of speech and assembly will not yield this result. It is one thing to postulate that during the one-year waiting period the people cannot legally start a recall process. It is entirely non sequitur to add that during the said period, the people's freedom of speech and freedom of assembly are suspended. These rights are in no way restricted for critical speeches during the one-year waiting period can serve as valuable inputs in deciding after the said period whether to initiate the recall process. They will assume more importance in the recall election date itself. To stress again, what the law deems impermissible is formally starting the recall process right after Day One of an incumbent's term of office for the purpose of ending his incumbency, an act bereft of any utility.jo

In my Preliminary Dissenting Opinion, I purveyed the view that the one-year waiting period is a period of repose, of respite from divisive politics in order to give whoever is the sovereign choice of the people a fair chance to succeed in public service. Rejecting this view, the majority holds that "unfortunately, the law cannot really provide for a period of honeymoon or moratorium in politics." With due respect, the ruling betrays historical amnesia. By no means is the one-year waiting period anew, startling legal mechanism. This legal mechanism has long been installed to regulate our labor-management relations, a volatile relationship, then and now. One of the areas of concern in labor-management relations relates to the choice of employee representative who shall bargain with the employer on the terms and conditions of employment. The choice of the representative is determined in a certification election, a democratic exercise often forcefully contested by unions for at stake is enormous power, both political and economic. In the infant years of our labor-management relations, these representatives were the objects of frequent change thru repeated petitions for new certification elections. These repeated petitions for certification elections weakened employee representatives and resulted in instability in labor-management relations. The instability had a debilitating effect on the economy. As a remedial measure, the Industrial Peace Act insulated the term of the employee representative from change for one year. This is known as the certification year rule pursuant to which no petition for certification election can be ordered in the same bargaining unit more often than once in twelve months.⁶ Hence, for one year, the employee representative is shielded from any initiative calling for a certification election to change representative. This progressive mechanism is still contained in Article 231 of our Labor Code. To jog our memory, this legal mechanism was taken from the Wagner Act⁷ of the United States which had a provision that no election can be directed in any bargaining unit or in any subdivision, where in the preceding 12-months period, a valid election has been held. This 12-month ban on certification election of the Wagner Act has never been challenged as violative of freedom of speech and of assembly of members of minority unions who wish to be elected as employee bargaining representative. Let us not miss the reason for the twelve-month ban. Authorities in labor law like Professor Forkosch emphasize that the "concepts of political democracy were assimilated in these representation elections in labor law."⁸ Needless to state, our own laws and derivative foreign laws repudiate the majority ruling that "x x x the law cannot really provide for a period of honeymoon or moratorium in politics... The only safeguard against the baneful . . . effects of partisan politics is the good sense and self restraint of the people ...."

I do not have any competing vision to offer against the majority on the need to hike the efficacy of the power of our people to recall elected officials who have lost their confidence. After all, our EDSA experience has taught us that it is the people and the people alone who can end malgovernment when all else fail. Recall is a powerful weapon given to our people but, like any power, it can be abused. For this reason, the legislature carefully defined its limitations for its misuse can bring about the disuse of a valuable means to terminate the misrule of misfits in government. Our lawmakers know that the paradox of power is that to be effective it must be restrained from running riot. Section 74 of the Local Government Code spelled out these restraints. Section 74 (a) limits the number of times an official can be subjected to recall during his term of office to only one time. Section 74 (b) limits the periods when the power can be exercised. It sets two periods: the first, sets the beginning, i.e., one year after an officials' assumption of office; the second, sets the end, i.e., one year immediately preceding a regular election. These limitations should be strictly followed considering the short 3-year term of office of local officials.

It is in this light that the Court should interpret Section 74. Its interpretation should strengthen the right of recall and the best way to do this is to interpret it to prevent its misuse. By way of summation, I respectfully submit that by holding that recall initiatives can start right after Day One of an official's assumption to office, the majority failed to recognize the need for stability of a public office. By holding that these initiatives can be undertaken not once, not twice but endlessly within one year after an official's assumption to office, the majority exposed our people to an overdose of politics. By holding that recall initiatives can be done prematurely, the majority forgot that such initiatives are meaningful only if they are used to adjudge an official's performance in office. By holding that recall initiatives can be done even without giving an official a fair chance to serve the people, the majority has induced incumbents to play the politics of compromise instead of the politics of performance. By holding thatrecall initiatives can be done at any one's caprice, the majority has cast a blind eye on the expenses that accompany such exercise. These expenses have to be repaid later, an undeniable cause of cronyism and corruption in government.

The bottomline is that our law intends recall as a mechanism of good government. It can never fulfill that intent if we allow its use to foment too much politics. We need not be adepts in the alleyways of politics to say that too much politics is the root of a lot of evils in our country. Our 1987 Constitution sought to check this bad political cholesterol plaguing our government. Any attempt to restore this fat should draw more than a phlegmatic posture.

I vote to grant the petition. PUNO, J

¹ See section 1, Article II of the 1987 Constitution; section 1, Article II of the 1973 Constitution; section 1, Article II of the 1935 Constitution.

² 227 SCRA 100, 108-112 (1993)

³ 269 SCRA 245 (1997)

⁴ Supra, p. 114.

⁵ Supra, p. 116.

⁶ See Sec. 12 (b) of the Industrial Peace Act.

⁷ See Sec. 9 (c)

⁸ A Treatise on Labor Law, 1955 ed., p. 564.