G.R. No.
113107 July 20, 1994 On 13 June 1993, the COMELEC en banc promulgated a resolution, the dispositive
WILMAR P. LUCERO, petitioner,
vs.
COMMISSION ON ELECTIONS and JOSE L. ONG, JR., respondents.
G.R. No. 113509 July 20, 1994
JOSE L. ONG, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and WILMAR P. LUCERO, respondents.
Cesar A. Sevilla & Associates for Wilmar Lucero.
Napolean G. Rama and Remollo Melocoton & Associates for Jose L. Ong, Jr.
DAVIDE, JR., J.:
After the issues had been joined in these consolidated cases, the Court resolved to
give due course to the petitions therein and to decide the cases on the merits. It can
no longer allow the parties to delay these cases. Their legal skirmishes, which have
unduly magnified uncomplicated issues, have effectively deprived the people of the
Second Legislative District of Northern Samar of representation in the House of
Representatives for more than two years now.
These cases are sequels to G. R. No. 105717, entitled "Jose L. Ong, Jr. vs.
Commission on Elections and Wilmar P. Lucero," which we finally resolved on 22
April 1993. 1 The petitioners were two of the five candidates 2 for the Second
Legislative District of Northern Samar in the synchronized national and local
elections held on 11 May 1992.
The canvass of the Provincial Board of Canvassers (PBC) of Northern Samar credited
Jose L. Ong, Jr. with 24,272 votes and Wilmar P. Lucero with 24,068 votes, or a lead
by Ong of 204 votes. However, this tally did not include the results of Precinct No. 7
of the municipality of Silvino Lobos, where the submitted election returns had not
been canvassed because they were illegible; of Precinct No. 13 of Silvino Lobos,
where the ballot boxes were snatched and no election was held; and of Precinct No.
16, also of Silvino Lobos, where all copies of the election returns were missing.
On 22 May 1992, Lucero asked the Commission on Elections (COMELEC), in SPA No.
92-282, to:
1. Forthwith order Respondent Provincial Board of Canvassers for
Northern Samar to suspend the proclamation of Private Respondent Jose L. Ong, Jr.;
2. Direct Respondent Provincial Board of Canvassers for Northern Samar to
correct the Certificate of Canvass (CEF 20) for Las Navas and, accordingly, to correct
the total votes so far counted by it for Petitioner from 24,068 to 24,088, thus
reducing the margin it found in favor of Private Respondent Jose L. Ong, Jr. from 204
to 184 votes only;
3. Order a special election in Precinct 13, Barangay Gusaran, Silvino Lobos,
pursuant to Section 6 of the Omnibus Election Code;
4. Order a recount of the votes for Representative of the Second District of
Northern Samar in Precinct 16, Barangay Tubgon, and Precinct 7, Barangay
Camayaan, both of Silvino Lobos, pursuant to Section 234 of the Omnibus Election
Code;
5. Order a recount of the votes for Representative in the 52 precincts
herein above enumerated in order to correct "manifest errors" pursuant to Section
15 of Republic Act 7166 and for this purpose order the impounding and safekeeping
of the ballot boxes of all said precincts in order to preserve the integrity of the
ballots and other election paraphernalia contained therein. 3
On 2 June 1992, the COMELEC, acting on Lucero's urgent manifestation, directed
the PBC to desist from reconvening until further orders.
On 8 June 1992, Ong moved to lift the suspension of the proceedings by the PBC,
which Lucero opposed on 10 June 1992 on the ground that the canvass could not be
completed even if the PBC were to reconvene because no election was held in
Precinct No. 13 (Barangay Gusaran) of Silvino Lobos and there was no canvassing of
the votes in Precinct No. 7 (Barangay Camayaan) and Precinct No. 16 (Barangay
Tubgon) both of Silvino Lobos.
portion of which reads:
Accordingly, the Commission hereby orders the Provincial Election Supervisor of
Northern Samar to bring to the Commission within three (3) days from receipt
hereof the ballot boxes from Precinct 7 and 16 of Silvino Lobos, to be escorted by
representatives from the petitioner and the respondents as well as other parties
who have an interest to protect, and to notify said parties hereof. The Municipal
Treasurer of said town is directed to turn over custody of said ballot boxes to the
Provincial Election Supervisor, and the keys thereof shall likewise be turned over by
the appropriate officials in custody thereof to the PES, who shall in turn give one key
for each ballot box to the duly authorized representatives of the petitioner and the
respondent.
The Commission likewise orders the Election Registrar of Silvino Lobos, Northern
Samar, and the Chairman and members of the Boards of Election Inspectors of
Precincts 7 and 16 of said municipality to appear before the Commission within
three (3) days from receipt hereof.
Below the signatures of the Chairman and the six Commissioners, however,
Chairman Christian S. Monsod and Commissioners Haydee B. Yorac, Dario C. Rama
and Regalado E. Maambong directed as follows:
We vote in favor of this resolution except that portion which denied the correction
of the Certificate of Canvass for Las Navas. Correction of the Certificate of Canvass
for Las Navas is in order in view of the testimony of the election registrar of Las
Navas to the effect that Wilmar Lucero garnered 2,537 votes for Las Navas and not
2,517. Petition for correction was duly filed by Lucero with the Provincial Board of
Canvassers of Northern Samar on May 19, 1992. The Provincial Board of Canvassers
of Northern Samar is therefore directed to retabulate the total number of votes for
Las Navas for Lucero and enter the same in the Provincial Certificate of Canvass. 4
On 15 June 1992, Lucero filed an urgent motion to constitute a Special Board of
Election Inspectors (SBEI) to count the votes of Precincts Nos. 7 and 16 of Silvino
Lobos.5
On 20 June 1992, Ong, in a special civil action for certiorari filed with this Court and
subsequently docketed as G. R. No. 105717, questioned the order for the recount of
ballots in Precincts No. 7 and 16. Despite the pendency of this petition, the
COMELEC ordered the recount of the ballots in Precinct No. 16 by a SBEI which
recorded 43 votes for Lucero and 2 votes for Ong. 6
On 25 June 1992, this Court issued in G. R. No. 105717 a temporary restraining
order against the implementation by the COMELEC of its Order of 2 June 1992 and
its Resolution of 13 June 1992.
On 23 December 1992, this Court promulgated its decision in G. R. No. 105717, 7
the dispositive portion of which reads:
WHEREFORE, the petition for certiorari is GRANTED and a writ of preliminary
injunction is hereby ISSUED directing the COMELEC to CEASE and DESIST from
implementing its order of June 2, 1992, and its resolution dated June 13, 1992, and
the same are hereby declared NULLIFIED. Consequently, the election returns based
on the recounted ballots from Precinct 16 are hereby DISCARDED and in lieu
thereof, authentic returns from said precinct should instead be made a basis for the
canvassing. The Provincial Board of Canvassers of Northern Samar is hereby directed
to PROCEED WITH DISPATCH in the canvassing of ballots until completed and to
PROCLAIM the duly elected winner of the congressional seat for the Second District
of Northern Samar.
This decision is immediately executory. 8
Acting on the motions for reconsideration and clarification respectively filed by the
COMELEC and Lucero, this Court, on 22 April 1993, modified 9 its aforesaid
disposition in G. R. No. 105717 as follows;
IN VIEW OF ALL THE FOREGOING, the dispositive portion of the December 23, 1992
Decision is hereby MODIFIED to read as follows;
"WHEREFORE, THE PETITION IS GRANTED. THE JUNE 2, 1992 ORDER OF
RESPONDENT COMMISSION ON ELECTIONS IN SPA NO. 92-282 IS HEREBY
ANNULLED AND SET ASIDE. ITS JUNE 13, 1992 RESOLUTION THEREIN IS LIKEWISE
ANNULLED AND SET ASIDE INSOFAR AS IT AFFECTS PRECINCT NO. 7 OF SILVINO
LOBOS, THE RECOUNT OF VOTES IN THE 52 OTHER PRECINCTS AND THE
CORRECTION OF THE CERTIFICATE OF CANVASS OF LAS NAVAS, BUT IS AFFIRMED
WITH RESPECT TO THE ISSUE OF HOLDING A SPECIAL ELECTION IN PRECINCT NO. 13
AND THE RECOUNT OF THE BALLOTS IN PRECINCT
NO. 16.
THE RESPONDENT COMMISSION ON ELECTIONS IS HEREBY DIRECTED TO ASSIGN
SPA NO. 92-282 TO ANY OF ITS DIVISIONS PURSUANT TO ITS RULE ON RAFFLE OF
CASES FOR IT TO RESOLVE THE PRE-PROCLAMATION ISSUES THEREIN, TAKING INTO
ACCOUNT THE ABOVE PRONOUNCEMENTS AND THE EXCEPTIONS PROVIDED FOR IN
SECTION 15 OF R. A. NO. 7166.
WHENEVER WARRANTED BY THE CIRCUMSTANCES, THE COMMISSION MAY (A) CALL
A SPECIAL ELECTION IN PRECINCT NO. 13 OF SILVINO LOBOS, NORTHERN SAMAR,
AND (B) RECONVENE THE SPECIAL MUNICIPAL BOARD OF CANVASSERS AND THE
SPECIAL PROVINCIAL BOARD OF CANVASSERS IT HAD EARLIER CONSTITUTED OR
CREATE NEW ONES.
ALL THE FOREGOING SHOULD BE DONE WITH PURPOSEFUL DISPATCH TO THE END
THAT THE WINNING CANDIDATE FOR CONGRESSMAN REPRESENTING THE SECOND
CONGRESSIONAL DISTRICT OF NORTHERN SAMAR MAY BE PROCLAIMED AS SOON
AS POSSIBLE." 10
As to the certificate of canvass of the municipality of Las Navas, this Court explicitly
stated;
The correction of the certificate of canvass of Las Navas is likewise in order. Even
though a pre-proclamation issue is involved, the correction of the manifest error is
allowed under Section 15 of R. A. No. 7166. 11
Conformably with the aforesaid modified judgment in G. R. No. 105717, SPA No. 92-
282 was raffled to the First Division of the COMELEC which conducted hearings
thereon and received the arguments and evidence of both parties who then
submitted their respective memoranda on 25 June 1994. However, during the
consultations on the case by the Members of the First Division, the concurrence of
at least two of them could not be obtained; accordingly, pursuant to the COMELEC
Rules, the case was elevated for proper disposition to the COMELEC en banc to
which the parties submitted their respective memoranda on 19 November 1993. 12
On 7 January 1994, the COMELEC en banc promulgated a resolution 13 whose
dispositive portion reads as follows:
1. To direct the special Provincial Board of Canvassers for Northern Samar
(a) to include in the municipal certificate of canvass of Silvino Lobos the forty-three
(43) votes of petitioner Lucero and the two (2) votes of private respondent Ong as
reflected in the election returns of Precinct No. 16 (Barangay Tubgon) prepared by
the special Board of Election Inspectors constituted by the Commission to recount
the votes (ballots) in said precinct, as canvassed by the special Municipal Board of
Canvassers for Silvino Lobos; (b) to include in the municipal certificate of canvass of
Silvino Lobos, the sixty-one (61) votes of private respondent Ong and 29, 30, or 31
votes of petitioner Lucero as reflected in the election returns (MBC Copy submitted
as "Comelec Copy") of Precinct No. 7 (Barangay Camaya-an), as canvassed by the
special Municipal Board of Canvassers for Silvino Lobos; (c) to retabulate the total
number of votes of petitioner Lucero for the Municipality of Las Navas and to enter
in the provincial certificate of canvass the correct total which is two thousand five
hundred thirty-seven (2,537) as reflected in the Statement of Votes (C. E. Form 20-
A) prepared and submitted by the Municipal Board of Canvassers for Las Navas; and
(d) to submit to the Commission a computation of the votes of the contending
parties including therein all the votes of petitioner Lucero (with alternative totals)
and private respondent Ong, in Precinct Nos. 7 and 16 of Silvino Lobos and the total
votes of petitioner Lucero in the Municipality of Las Navas as corrected. However,
under no circumstances should the Board proclaim any winning candidate until
instructed to do so by the Commission;
2. To issue an Order calling for a special election in the last remaining
Precinct No. 13 (Barangay Gusaran) of the Municipality of Silvino Lobos if justified by
the result of the canvass by the Provincial Board of Canvassers for Northern Samar,
and to notify the parties of the schedule of election activities for that precinct; and
3. After including in the tabulation the results of the special election of
Precinct No. 13, to decide the issue of the recount of the votes (ballots) of Precinct
No. 7 of Silvino Lobos, pursuant to Section 236 of the Omnibus Election Code, to
resolve the discrepancy of the votes of petitioner Lucero in the same return, if such
discrepancy of votes of the candidates concerned would affect the over-all results of
the election after the totality of the votes of the contending parties shall have been
determined.
Both Lucero and Ong have come to this Court by way of separate special civil actions
for certiorari to challenge the Resolution.
In G. R. No. 113107, Lucero maintains that (1) the count of the ballots in Precinct
No. 7 of Silvino Lobos must be unconditional because the election returns therefrom
are invalid; and (2) his chances in the special election in Precinct No. 13 of Silvino
Lobos would be spoiled if the returns for Precinct No. 7 were to be included
beforehand in the canvass.
In G. R. No. 113509, Ong questions (1) the authority of the COMELEC to order the
correction of the alleged manifest error in the Municipal Certificate of Canvass of
Las Navas despite the absence of any appeal; and (2) the authority of the COMELEC
to call for a special election in Precinct No. 13 almost two years after the regular
election.
As we see it, the core issues in these consolidated cases are:
(1) Whether there should first be a count of the ballots of Precinct No. 7 of
Silvino Lobos before determining the necessity of holding a special election in
Precinct No. 13 of Silvino Lobos:
(2) Whether the COMELEC acted with grave abuse of discretion in ordering
the correction of the alleged manifest error in the Municipal Certificate of Canvass
of Las Navas; and
(3) Whether the COMELEC acted with grave abuse of discretion in calling
for a special election in Precinct No. 13 after almost two (2) years, or more
specifically after one (1) year and ten (10) months, following the day of the
synchronized elections.
We shall take up these issues seriatim.
I.
The answer to the first issue is in the affirmative.
We find the COMELEC's disposition regarding Precinct No. 7 to be unclear. In the
first paragraph of the dispositive portion of the challenged resolution, it directs the
Provincial Board of Canvassers "to include in the municipal certificate of canvas of
Silvino Lobos the sixty-one (61) votes of private respondent Ong and 29, 30, or 31
votes of petitioner Lucero as reflected in the election returns (MBC copy submitted
as "COMELEC Copy") of Precinct No. 7 (Barangay Camaya-an), as canvassed by the
special Municipal Board of Canvassers for Silvino Lobos," and "to submit to the
Commission a computation of the votes of the contending parties including therein
all the votes of petitioner Lucero (with alternative totals) and private respondent
Ong, in Precinct Nos. 7 and 16 of Silvino Lobos. . . ." On the other hand, in the fourth
paragraph of the said dispositive portion, it orders the Provincial Board of
Canvassers, after "including in the tabulation the results of the special election of
Precinct No. 13," to "decide the issue of the recount of the votes (ballots) of
Precinct No. 7 of Silvino Lobos, pursuant to Section 236 of the Omnibus Election
Code [and] to resolve the discrepancy of the votes of petitioner Lucero in the same
return, if such discrepancy of votes of the candidate concerned would affect the
over-all results of the election after the totality of the votes of the contending
parties shall have been determined."
Obviously, instead of ordering an outright recount of the ballots of Precinct No. 7,
the COMELEC would first give full faith and credit to the questioned election returns
thereof, which it describes as the "Comelec Copy," and, accordingly, direct the PBC
to include in the municipal certificate of canvass of Silvino Lobos the 61 votes for
Ong and the uncertain votes for Lucero — 29, 30, or 31. The recount would only be
made if after a special election in Precinct No. 13 shall have been held, it shall be
determined that such a recount would be necessary.
We fail to grasp the logic of the proposition. First, it is clear to us that the COMELEC,
which has in its possession the so-called "Comelec Copy" of the questioned election
returns of Precinct No. 7 and heard the witnesses who testified thereon, doubts the
authenticity of the so-called "Comelec Copy" of the election returns of Precinct No.
7; 14 hence, it authorizes the PBC to decide the issue of a recount "pursuant to
Section 236 of the Omnibus Election Code." Since it doubts such authenticity, it
could not, without arbitrariness and abuse of discretion, order the inclusion of the
"votes" of Ong and Lucero found in the doubtful "Comelec Copy" of the election
returns in the municipal certificate of canvass. Second, it is an uncontroverted fact
that an election was held in Precinct No. 7. None was held in Precinct No. 13 for
reasons the parties fully knew. Pursuant to Section 6 of the Omnibus Election Code
(B.P. Blg. 881), a special election may be held in Precinct No. 13 only if the failure of
the election therein "would affect the result of the election." This "result of the
election" means the net result of the election in the rest of the precincts in a given
constituency, such that if the margin of a leading candidate over that of his closest
rival in the latter precincts is less than the total number of votes in the precinct
where there was failure of election, then such failure would certainly affect "the
result of the election"; hence, a special election must be held. Consequently, the
holding of a special election in Precinct No. 13 can only be determined after the
votes in Precinct No. 7 shall have been included in the canvass by the Provincial
Board of Canvassers.
We may further state that the so-called "Comelec Copy" of the election returns of
Precinct No. 7 can by no means be validly included in the municipal canvass. The
summary of the evidence in the "preparation" of the election returns of Precinct No.
7, both in the challenged Resolution and in the separate Concurring and Dissenting
Opinion of Commissioners Gorospe and Claravall, leaves no room for doubt that
there was actually no counting of the votes in Precinct No. 7. Quoted in the
challenged Resolution is a portion of the testimony of Sabina T. Jarito, Precinct
Chairman of Precinct No. 7, which clearly shows that on questions by COMELEC
Chairman Christian S. Monsod and Commissioner Vicente B. de Lima, the witness
candidly admitted that the election returns were prepared at the "munisipyo" or
municipal building and not at the polling place of Precinct No. 7 in barangay
Camaya-an. 15 This "munisipyo" is located at the poblacion of Silvino Lobos. Under
the law, the board of election inspectors shall prepare the election returns
simultaneously with the counting of votes in the polling place. 16 There is no
evidence whatsoever that the COMELEC had, for valid reasons, authorized the
transfer of venue of the counting of the votes of Precinct No. 7 from the polling
place in barangay Camaya-an to the municipal building and that the counting did in
fact take place at the latter. Although in the Concurring and Dissenting Opinion of
Commissioners Gorospe and Claravall there is a reference to Exhibit "E," the Joint
Affidavit of Sabina Jarito and Mevilyn Surio wherein they declare that after the
voting the Board of Election Inspectors unanimously approved to transfer the
counting of votes to the Municipal Building in the Poblacion of Silvino Lobos, which
was allegedly concurred in by all the watchers of political parties and the candidates
present, the alleged "counting" at the municipal building was denied by no less than
the Municipal Election Officer of Silvino Lobos, Antonio Tepace, and the Municipal
Treasurer thereof, Mr. Gabriel Basarte, in their affidavits marked as Exhibit "F" and
Exhibit "G,"
respectively. 17
Since there was no counting of the votes of Precinct No. 7, no valid election returns
could be made and any copy of election returns purporting to come therefrom is a
fabrication. A recount thereof, which presupposes a prior count, would obviously be
unwarranted.
Only a count then of the votes of Precinct No. 13 would heretofore be in order.
Sections 234, 235, and 236 of the Omnibus Election Code are thus still inapplicable.
And, in the light of what we stated before in relation to the holding of a special
election, such a count of the votes of Precinct No. 7 must, perforce, precede the
special election in Precinct No. 13.
II.
Ong's first grievance in G. R. No. 113509 is without merit.
The order of the COMELEC for the correction of the manifest error in the municipal
certificate of canvass of Las Navas was made pursuant to the declaration made by
this Court in G. R. No. 105717 (Ong vs. COMELEC) 18 that:
The correction of the certificate of canvass of Las Navas is likewise in order. Even
though a pre-proclamation issue is involved, the correction of the manifest error is
allowed under Sec. 15 of R. A. No. 7166.
Since no motion for reconsideration was filed in that case, the decision therein
became final and entry of judgment was made on 4 August 1993. Consequently,
Ong cannot now re-litigate the issue of the correction of the certificate of canvass of
Las Navas.
III
On the authority of the COMELEC to order the holding of a special election, Section
6 of the Omnibus Election Code provides:
Sec. 6. Failure of election. — If, on account of force majeure, violence,
terrorism, fraud, or other analogous causes the election in any polling place has not
been held on the date fixed, or had been suspended before the hour fixed by law for
the closing of the voting, or after the voting and during the preparation and the
transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect, and if in any of such cases the failure or
suspension of election would affect the result of the election, the Commission shall,
on the basis of a verified petition by any interested party and after due notice and
hearing, call for the holding or continuation of the election not held, suspended or
which resulted in a failure to elect on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause of such postponement or suspension of
the election or failure to elect.
The first paragraph of Section 4 of R. A. No. 7166 likewise provides:
Sec. 4. Postponement, Failure of Election and Special Elections. — The
postponement, declaration of failure of election and the calling of special elections
as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by
the Commission sitting en banc by a majority votes of its members. The causes for
the declaration of a failure of election may occur before or after the casting of votes
or on the day of the election.
There are, therefore, two requisites for the holding of special elections under
Section 6 of the Omnibus Election Code, viz., (1) that there is a failure of election,
and (2) that such failure would affect the results of the election. The parties admit
that the failure of the election in Precinct No. 13 was due to ballot-box snatching
and do not dispute the finding of the COMELEC as to the necessity and inevitability
of the holding of a special election in said precinct, even if the result of Precinct No.
7 should be based on the questionable "Comelec Copy" of its election returns. The
COMELEC held:
Based on the adjudged correction of the votes in favor of petitioner Lucero in the
Municipality of Las Navas, the results of the recount of votes (ballots) of Precinct
No. 16 (Silvino Lobos), and the votes reflected in the available copy of the election
returns for Precinct No. 7 (Silvino Lobos), it is safe to predict that when the special
Provincial Board of Canvassers will reconvene to sum up the votes of the contending
parties, the original lead of private respondent Ong of two hundred four (204) votes
against petitioner Lucero — 24,272 as against 24,068 — will be reduced to either
175 or 173 depending on whether Lucero will be credited a low of 29 or a high of 31
votes as reflected in the election returns of Precinct No. 7.
Without preempting the exact figures which only the special Provincial Board of
Canvassers can correctly determine, undoubtedly it is inevitable that a special
election will have to be held in Precinct No. 13 (Barangay Gusaran) of the
Municipality of Silvino Lobos.
...
Given the established lead of private respondent Ong over petitioner Lucero, We
answer in the affirmative. According to Comelec records, the number of registered
voters in Precinct No. 13 is two hundred thirteen (213). Since the lead of respondent
Ong is less than the number of registered voters, the votes in that precinct could
affect the existing result because of the possibility that petitioner Lucero might get a
majority over Ong in that precinct and that majority might be more than the present
lead of Ong. 19
On the basis of the additional votes credited so far to the parties, 20 the following
computation is in order: to Ong's 24,272 votes will be added 2 more from Precinct
No. 16, to make a total of 24,274, while to Lucero's 24,068 votes will be added 20
more from Las Navas and 43 from Precinct No. 16, for a total of 24,131. Ong's
earlier lead will thus be reduced to 143, which is admittedly less than the 213
registered voters in Precinct No. 13. 21
The two requirements then for a special election under Section 6 of the Omnibus
Election Code have indeed been met.
In fixing the date of the special election, the COMELEC should see to it that: (1) it
should be not later than thirty days after the cessation of the cause of the
postponement or suspension of the election or the failure to elect, and (2) it should
be reasonably close to the date of the election not held, suspended, or which
resulted in failure to elect. The first involves questions of fact. The second must be
determined in the light of the peculiar circumstances of a case. In the instant case,
the delay was not attributable to the poor voters of Precinct No. 13 or to the rest of
the electorate of the Second Legislative District of Northern Samar. The delay was,
as stated in the opening paragraph of this ponencia, primarily caused by the legal
skirmishes or maneuvers of the petitioners which muddled simple issues. The Court
takes judicial notice of the fact that G. R. No. 113509 is the third case Ong has
brought to this Court. 22 Considering then that the petitioners themselves must
share the blame for the delay, and taking into account the fact that since the term
of the office of the contested position is only three years, the holding of a special
election in Precinct No. 13 within the next few months may still be considered
"reasonably close to the date of the election not held." Ong's postulation should
then be rejected.
In the course of the deliberations on these cases, the Court considered the possible
application, by analogy, of Section 10, Article VII of the 1987 Constitution providing
that no special election in the event of a vacancy in the Offices of the President and
Vice President "shall be called if the vacancy occurs within eighteen months before
the date of the next presidential election," and of the second paragraph of Section 4
of R. A. No. 7166 which provides:
In case a permanent vacancy shall occur in the Senate or House of Representatives
at least one (1) year before the expiration of the term, the Commission shall call and
hold a special election to fill the vacancy not earlier than sixty (60) days nor longer
than ninety (90) days after the occurrence of the vacancy. However, in case of such
vacancy in the Senate, the special election shall be held simultaneously with the
next succeeding regular election.
A view was expressed that we should not hold the special election because the
underlying philosophy for the prohibition to hold the special election if the vacancy
occurred within a certain period before the next presidential election or the next
regular election, as the case may be, is obviously the avoidance of the expense to be
incurred in the holding of a special election when a regular election is, after all, less
than a year away. The Court ultimately resolved that the aforesaid constitutional
and statutory proscriptions are inapplicable to special elections which may be called
under Section 6 of the Omnibus Election Code. First, the special election in the
former is to fill permanent vacancies in the Office of the President, Vice President,
and Members of Congress occurring after the election, while the special election
under the latter is due to or by reason of a failure of election. Second, a special
election under Section 6 would entail minimal costs because it is limited to only the
precincts involved and to the candidates who, by the result of the election in a
particular constituency, would be affected by the failure of election. On the other
hand, the special election for the Offices of the President, Vice President, and
Senators would be nation-wide, and that of a Representative, district-wide. Third,
Section 6, when specifically applied to the instant case, presupposes that no
candidate had been proclaimed and therefore the people of the Second Legislative
District of Northern Samar would be unrepresented in the House of Representatives
until the special election shall ultimately determine the winning candidate, such that
if none is held, they would have no representation until the end of the term. under
the aforesaid constitutional and statutory provisions, the elected officials have
already served their constituencies for more than one-half of their terms of office.
Fourth, if the law had found it fit to provide a specific and determinate time-frame
for the holding of a special election under Section 6, then it could have easily done
so in Section 4 of R. A. No. 7166.
Another serious obstacle to Ong's proposition is that, considering the COMELEC's
disposition of Precinct No. 7 in the challenged Resolution, he would then be
declared and proclaimed the duly elected Representative of the Second Legislative
District of Northern Samar despite the fact that as earlier observed, there was no
counting of the votes of Precinct No. 7, and the results of the district elections for
Representative would be affected by the failure of the election in Precinct No. 13.
To accept the proposition is to allow a proclamation based on an incomplete
canvass where the final result would have been affected by the uncanvassed result
of Precinct No. 7 and by the failure of the election in Precinct No. 13 and to impose
upon the people of the Second Legislative District of Northern Samar a
Representative whose mandate is, at the very least, uncertain, and at the most,
inexistent.
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered:
I. DISMISSING, for lack of merit, the petition in G. R. No. 113509; and
II. In G. R. No. 113107, DIRECTING the respondent Commission on
Elections to:
(1) Reconvene, in its main office of Manila, within five (5) days from notice
hereof, the Special Board of Canvassers of the municipality of Silvino Lobos,
Northern Samar, which shall then, as a special Board of Election Inspectors of
Precinct No. 7 of said municipality, within forty-eight (48) hours from its
reconvening, count the ballots of said Precinct No. 7, and deliver to the special
Provincial Board of Canvassers of the said Province a copy of the election returns;
(2) Reconvene, in its main office in Manila, within the same period as
aforestated, the special Provincial Board of Canvassers of Northern Samar which
shall then, within seventy-two (72) hours from its reconvening:
(a) Include in the Municipal Certificate of Canvass of Silvino Lobos (1) the
total number of votes for petitioner Wilmar P. Lucero and for petitioner Jose L. Ong,
Jr., respectively, in Precinct No. 7 of Silvino Lobos as recorded in the election returns
submitted by the aforementioned special Municipal Board of Canvassers, and (2)
the forty-three (43) votes for petitioner Wilmar P. Lucero and the two (2) votes for
petitioner Jose L. Ong, Jr. as reflected in the election returns of Precinct No. 16
(Barangay Tubgon) prepared, after a recount of the ballots, by the special Board of
Canvassers; and after such inclusions to enter the new totals of the votes for the
petitioners in the Certificate of Provincial Canvass;
(b) Retabulate the total number of votes for Wilmar P. Lucero for the
Municipality of Las Navas, Northern Samar, which shall be two thousand and five
hundred thirty-seven (2,537) as reflected in the Statement of Votes (C.E. Form 20-A)
prepared and submitted by the Municipal Board of Canvassers of Las Navas, and to
enter the same in the Certificate of Provincial Canvass;
(c) After the accomplishment of all the foregoing, to sum up anew in the
Certificate of Provincial Canvass the canvassed municipal certificates of canvass of
all the municipalities of the Second Legislative District of Northern Samar and if the
same would establish that the difference in votes between petitioner Wilmar P.
Lucero and petitioner Jose L. Ong, Jr. is less than two hundred and thirteen (213),
hence the failure of the election in Precinct No. 13 would unavoidably and inevitably
affect then the result of the election, to report to the Commission on Elections such
fact and to furnish the latter with a certified photocopy of the Certificate of
Provincial Canvass;
(3) Within three (3) days after receipt of the aforesaid report from the
special Provincial Board of Canvassers, to CALL a special election in Precinct No. 13
of Silvino Lobos, which shall be held not later than thirty (30) days from such call; a
copy of the election returns of said special election shall forthwith be transmitted to
the Special Provincial Board of Canvassers of Northern Samar, which shall then
enter the results thereof in its canvass and make a final summation of the results in
the Certificate of Provincial Canvass, and thereafter, pursuant to the Omnibus
Election Code, pertinent election laws and rules and resolutions of the Commission,
proclaim the winning candidate for Representative of the Second Legislative District
of Northern Samar.
If for any reason whatsoever it would not be possible to immediately reconvene the
Special Municipal Board of Canvassers of Silvino Lobos and the Special Provincial
Board of Canvassers of Northern Samar, the COMELEC may create new ones.
No pronouncements as to costs.
SO ORDERED.
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN,
petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN
PEDROSA, in their capacities as founding members of the People's Initiative for
Reforms, Modernization and Action (PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK),
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC.
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG
DEMOKRATIKONG PILIPINO (LABAN), petitioners-intervenors.
NOTE: nay separate opinion (wa nako giapil diri)
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition
under Rule 65 of the Rules of Court is the right of the people to directly propose
amendments to the Constitution through the system of initiative under Section 2 of
Article XVII of the 1987 Constitution. Undoubtedly, this demands special attention,
as this system of initiative was unknown to the people of this country, except
perhaps to a few scholars, before the drafting of the 1987 Constitution. The 1986
Constitutional Commission itself, through the original proponent1 and the main
sponsor2 of the proposed Article on Amendments or Revision of the Constitution,
characterized this system as "innovative".3 Indeed it is, for both under the 1935 and
1973 Constitutions, only two methods of proposing amendments to, or revision of,
the Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths
of all its members and (2) by a constitutional convention.4 For this and the other
reasons hereafter discussed, we resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public
respondent Commission on Elections (hereafter, COMELEC) a "Petition to Amend
the Constitution, to Lift Term Limits of Elective Officials, by People's Initiative"
(hereafter, Delfin Petition)5 wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached
"Petition for Initiative on the 1987 Constitution, in newspapers of general and local
circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines,
to assist Petitioners and volunteers, in establishing signing stations at the time and
on the dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for
People's Initiative,6 a group of citizens desirous to avail of the system intended to
institutionalize people power; that he and the members of the Movement and other
volunteers intend to exercise the power to directly propose amendments to the
Constitution granted under Section 2, Article XVII of the Constitution; that the
exercise of that power shall be conducted in proceedings under the control and
supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300,
signature stations shall be established all over the country, with the assistance of
municipal election registrars, who shall verify the signatures affixed by individual
signatories; that before the Movement and other volunteers can gather signatures,
it is necessary that the time and dates to be designated for the purpose be first fixed
in an order to be issued by the COMELEC; and that to adequately inform the people
of the electoral process involved, it is likewise necessary that the said order, as well
as the Petition on which the signatures shall be affixed, be published in newspapers
of general and local circulation, under the control and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are
Sections 4 and 7 of Article VI,7 Section 4 of Article VII,8 and Section 8 of Article X9 of
the Constitution. Attached to the petition is a copy of a "Petition for Initiative on the
1987 Constitution" 10 embodying the proposed amendments which consist in the
deletion from the aforecited sections of the provisions concerning term limits, and
with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT
OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI,
SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE
CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the
people, and after it is signed by at least twelve per cent of the total number of
registered voters in the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND
96-037 (INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a)
directing Delfin "to cause the publication of the petition, together with the attached
Petition for Initiative on the 1987 Constitution (including the proposal, proposed
constitutional amendment, and the signature form), and the notice of hearing in
three (3) daily newspapers of general circulation at his own expense" not later than
9 December 1996; and (b) setting the case for hearing on 12 December 1996 at
10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared:
Delfin and Atty. Pete Q. Quadra; representatives of the People's Initiative for
Reforms, Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S.
Roco, together with his two other lawyers, and representatives of, or counsel for,
the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang
Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino
(LABAN). 12 Senator Roco, on that same day, filed a Motion to Dismiss the Delfin
Petition on the ground that it is not the initiatory petition properly cognizable by the
COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to
file their "memoranda and/or oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago,
Alexander Padilla, and Maria Isabel Ongpin — filed this special civil action for
prohibition raising the following arguments:
(1) The constitutional provision on people's initiative to amend the
Constitution can only be implemented by law to be passed by Congress. No such law
has been passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and
Regulating Constitution Amendments by People's Initiative, which petitioner
Senator Santiago filed on 24 November 1995, is still pending before the Senate
Committee on Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative,
namely, initiative on the Constitution, on statutes, and on local legislation. However,
it failed to provide any subtitle on initiative on the Constitution, unlike in the other
modes of initiative, which are specifically provided for in Subtitle II and Subtitle III.
This deliberate omission indicates that the matter of people's initiative to amend
the Constitution was left to some future law. Former Senator Arturo Tolentino
stressed this deficiency in the law in his privilege speech delivered before the Senate
in 1994: "There is not a single word in that law which can be considered as
implementing [the provision on constitutional initiative]. Such implementing
provisions have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after
publication in print media. This indicates that the Act covers only laws and not
constitutional amendments because the latter take effect only upon ratification and
not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern
"the conduct of initiative on the Constitution and initiative and referendum on
national and local laws, is ultra vires insofar as initiative on amendments to the
Constitution is concerned, since the COMELEC has no power to provide rules and
regulations for the exercise of the right of initiative to amend the Constitution. Only
Congress is authorized by the Constitution to pass the implementing law.
(5) The people's initiative is limited to amendments to the Constitution, not
to revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for people's initiative;
neither the COMELEC nor any other government department, agency, or office has
realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the
petitioners allege that in the event the COMELEC grants the Delfin Petition, the
people's initiative spearheaded by PIRMA would entail expenses to the national
treasury for general re-registration of voters amounting to at least P180 million, not
to mention the millions of additional pesos in expenses which would be incurred in
the conduct of the initiative itself. Hence, the transcendental importance to the
public and the nation of the issues raised demands that this petition for prohibition
be settled promptly and definitely, brushing aside technicalities of procedure and
calling for the admission of a taxpayer's and legislator's suit. 14 Besides, there is no
other plain, speedy, and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the
petition within a non-extendible period of ten days from notice; and (b) issued a
temporary restraining order, effective immediately and continuing until further
orders, enjoining public respondent COMELEC from proceeding with the Delfin
Petition, and private respondents Alberto and Carmen Pedrosa from conducting a
signature drive for people's initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment
15 on the petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL
TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST
PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC
GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL
GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN.
ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF
RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES
AND EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE
DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE
GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS
P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE
SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE
CLOSELY" PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE
HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF
SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING
LAW IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE
AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE
BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP.
ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16,
1991 PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN
THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE
HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS BY
SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR
BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290
CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER TO
"PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY
OUT THE PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E,
PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE
OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF THE
CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION.
REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413,
2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment
16 which starts off with an assertion that the instant petition is a "knee-jerk reaction
to a draft 'Petition for Initiative on the 1987 Constitution'. . . which is not formally
filed yet." What he filed on 6 December 1996 was an "Initiatory Pleading" or
"Initiatory Petition," which was legally necessary to start the signature campaign to
amend the Constitution or to put the movement to gather signatures under
COMELEC power and function. On the substantive allegations of the petitioners,
Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735,
which governs the conduct of initiative to amend the Constitution. The absence
therein of a subtitle for such initiative is not fatal, since subtitles are not
requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes cast in
the plebiscite shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is
contradicted by (a) Section 2, Article IX-C of the Constitution, which grants the
COMELEC the power to enforce and administer all laws and regulations relative to
the conduct of an election, plebiscite, initiative, referendum, and recall; and (b)
Section 20 of R.A. 6735, which empowers the COMELEC to promulgate such rules
and regulations as may be necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere
amendment to, the Constitution because it seeks to alter only a few specific
provisions of the Constitution, or more specifically, only those which lay term limits.
It does not seek to reexamine or overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners'
estimate of P180 million as unreliable, for only the COMELEC can give the exact
figure. Besides, if there will be a plebiscite it will be simultaneous with the 1997
Barangay Elections. In any event, fund requirements for initiative will be a priority
government expense because it will be for the exercise of the sovereign power of
the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2 January
1997, the Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms, recognizes, and
guarantees that power; and its Section 3, which enumerates the three systems of
initiative, includes initiative on the Constitution and defines the same as the power
to propose amendments to the Constitution. Likewise, its Section 5 repeatedly
mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in
R.A. No. 6735 because, being national in scope, that system of initiative is deemed
included in the subtitle on National Initiative and Referendum; and Senator
Tolentino simply overlooked pertinent provisions of the law when he claimed that
nothing therein was provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that
R.A. No. 6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere
amendment to the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of
R.A. No. 6735 and under the Omnibus Election Code. The rule-making power of the
COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this
Court in Subic Bay Metropolitan Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary
restraining order; (b) noted the aforementioned Comments and the Motion to Lift
Temporary Restraining Order filed by private respondents through Atty. Quadra, as
well as the latter's Manifestation stating that he is the counsel for private
respondents Alberto and Carmen Pedrosa only and the Comment he filed was for
the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997 by
Senator Raul Roco and allowed him to file his Petition in Intervention not later than
20 January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the
Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI),
filed a Motion for Intervention. Attached to the motion was their Petition in
Intervention, which was later replaced by an Amended Petition in Intervention
wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a
revision of, the Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it
would involve a change from a political philosophy that rejects unlimited tenure to
one that accepts unlimited tenure; and although the change might appear to be an
isolated one, it can affect other provisions, such as, on synchronization of elections
and on the State policy of guaranteeing equal access to opportunities for public
service and prohibiting political dynasties. 19 A revision cannot be done by initiative
which, by express provision of Section 2 of Article XVII of the Constitution, is limited
to amendments.
(2) The prohibition against reelection of the President and the limits
provided for all other national and local elective officials are based on the
philosophy of governance, "to open up the political arena to as many as there are
Filipinos qualified to handle the demands of leadership, to break the concentration
of political and economic powers in the hands of a few, and to promote effective
proper empowerment for participation in policy and decision-making for the
common good"; hence, to remove the term limits is to negate and nullify the noble
vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly
in a conflict-of-interest situation. Initiative is intended as a fallback position that may
be availed of by the people only if they are dissatisfied with the performance of
their elective officials, but not as a premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the
enabling law that implements the people's initiative on amendments to the
Constitution. It fails to state (a) the proper parties who may file the petition, (b) the
appropriate agency before whom the petition is to be filed, (c) the contents of the
petition, (d) the publication of the same, (e) the ways and means of gathering the
signatures of the voters nationwide and 3% per legislative district, (f) the proper
parties who may oppose or question the veracity of the signatures, (g) the role of
the COMELEC in the verification of the signatures and the sufficiency of the petition,
(h) the appeal from any decision of the COMELEC, (I) the holding of a plebiscite, and
(g) the appropriation of funds for such people's initiative. Accordingly, there being
no enabling law, the COMELEC has no jurisdiction to hear Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by
COMELEC Resolution No. 2300, since the COMELEC is without authority to legislate
the procedure for a people's initiative under Section 2 of Article XVII of the
Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No.
6735 does not constitute a legal basis for the Resolution, as the former does not set
a sufficient standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the
people's right to initiate constitutional amendments. This law is a consolidation of
Senate Bill No. 17 and House Bill No. 21505; he co-authored the House Bill and even
delivered a sponsorship speech thereon. He likewise submits that the COMELEC was
empowered under Section 20 of that law to promulgate COMELEC Resolution No.
2300. Nevertheless, he contends that the respondent Commission is without
jurisdiction to take cognizance of the Delfin Petition and to order its publication
because the said petition is not the initiatory pleading contemplated under the
Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests
jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a
petition for initiative which is signed by the required number of registered voters.
He also submits that the proponents of a constitutional amendment cannot avail of
the authority and resources of the COMELEC to assist them is securing the required
number of signatures, as the COMELEC's role in an initiative on the Constitution is
limited to the determination of the sufficiency of the initiative petition and the call
and supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a
Petition in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2,
Article XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required
implementing law on the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not
have the required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be
proposed only by Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for
Intervention filed by the DIK and MABINI and by the IBP, as well as the Motion for
Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in
Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco
and of the IBP; (c) requiring the respondents to file within a nonextendible period of
five days their Consolidated Comments on the aforesaid Petitions in Intervention;
and (d) requiring LABAN to file its Petition in Intervention within a nonextendible
period of three days from notice, and the respondents to comment thereon within a
nonextendible period of five days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following
pivotal issues, which the Court formulated in light of the allegations and arguments
raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of
Initiative and Referendum and Appropriating Funds Therefor, was intended to
include or cover initiative on amendments to the Constitution; and if so, whether
the Act, as worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and Initiative
and Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid, considering the absence in the law of
specific provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national and local officials,
as proposed in the draft "Petition for Initiative on the 1987 Constitution," would
constitute a revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over,
a petition solely intended to obtain an order (a) fixing the time and dates for
signature gathering; (b) instructing municipal election officers to assist Delfin's
movement and volunteers in establishing signature stations; and (c) directing or
causing the publication of, inter alia, the unsigned proposed Petition for Initiative on
the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the
petition when there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously
their respective memoranda within twenty days and requested intervenor Senator
Roco to submit copies of the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the
allegations and arguments in the main Petition. It further submits that the COMELEC
should have dismissed the Delfin Petition for failure to state a sufficient cause of
action and that the Commission's failure or refusal to do so constituted grave abuse
of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal
and the Record of the House of Representatives relating to the deliberations of
House Bill No. 21505, as well as the transcripts of stenographic notes on the
proceedings of the Bicameral Conference Committee, Committee on Suffrage and
Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated
Comments on the Petitions in Intervention of Senator Roco, DIK and MABINI, and
IBP. 23 The parties thereafter filed, in due time, their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil
action.
For a more logical discussion of the formulated issues, we shall first take up the fifth
issue which appears to pose a prejudicial procedural question.
I AMENDMENTS TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE
DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention
to the fifth issue, i.e., whether it is proper for this Court to take cognizance of this
special civil action when there is a pending case before the COMELEC. The
petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition filed
by private respondent Delfin. This being so, it becomes imperative to stop the
Comelec from proceeding any further, and under the Rules of Court, Rule 65,
Section 2, a petition for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a
court of superior jurisdiction and directed to an inferior court, for the purpose of
preventing the inferior tribunal from usurping a jurisdiction with which it is not
legally vested. (People v. Vera, supra., p. 84). In this case the writ is an urgent
necessity, in view of the highly divisive and adverse environmental consequences on
the body politic of the questioned Comelec order. The consequent climate of legal
confusion and political instability begs for judicial statesmanship.
30. In the final analysis, when the system of constitutional law is threatened
by the political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss
the Delfin Petition on the ground that the COMELEC has no jurisdiction or authority
to entertain the petition. 26 The COMELEC made no ruling thereon evidently
because after having heard the arguments of Delfin and the oppositors at the
hearing on 12 December 1996, it required them to submit within five days their
memoranda or oppositions/memoranda. 27 Earlier, or specifically on 6 December
1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause
the publication of the petition, together with the attached Petition for Initiative, the
signature form, and the notice of hearing; and by setting the case for hearing. The
COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold on to
the petition rendered ripe and viable the instant petition under Section 2 of Rule 65
of the Rules of Court, which provides:
Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal,
corporation, board, or person, whether exercising functions judicial or ministerial,
are without or in excess of its or his jurisdiction, or with grave abuse of discretion,
and there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court alleging the facts with certainty and praying that judgment be
rendered commanding the defendant to desist from further proceedings in the
action or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no
jurisdiction over the Delfin Petition because the said petition is not supported by the
required minimum number of signatures of registered voters. LABAN also asserts
that the COMELEC gravely abused its discretion in refusing to dismiss the Delfin
Petition, which does not contain the required number of signatures. In light of these
claims, the instant case may likewise be treated as a special civil action for certiorari
under Section I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this
Court may brush aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr.
28
A party's standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality
because the transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON
COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by
the people through initiative upon a petition of at least twelve per centum of the
total number of registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters therein. No
amendment under this section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the
1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus, although this
mode of amending the Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is dependent on congressional action.
Bluntly stated, the right of the people to directly propose amendments to the
Constitution through the system of initiative would remain entombed in the cold
niche of the Constitution until Congress provides for its implementation. Stated
otherwise, while the Constitution has recognized or granted that right, the people
cannot exercise it if Congress, for whatever reason, does not provide for its
implementation.
This system of initiative was originally included in Section 1 of the draft Article on
Amendment or Revision proposed by the Committee on Amendments and
Transitory Provisions of the 1986 Constitutional Commission in its Committee
Report No. 7 (Proposed Resolution No. 332). 30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its
members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in
Article___ Section ___of the Constitution. 31
After several interpellations, but before the period of amendments, the Committee
submitted a new formulation of the concept of initiative which it denominated as
Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call
attention of the Members of the Commission that pursuant to the mandate given to
us last night, we submitted this afternoon a complete Committee Report No. 7
which embodies the proposed provision governing the matter of initiative. This is
now covered by Section 2 of the complete committee report. With the permission
of the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at least ten
percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out Section 2
are left to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at least 10 percent,
there are no details in the provision on how to carry this out. Do we understand,
therefore, that we are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long as
the legislature does not pass the necessary implementing law on this, this will not
operate?
MR. SUAREZ. That matter was also taken up during the committee
hearing, especially with respect to the budget appropriations which would have to
be legislated so that the plebiscite could be called. We deemed it best that this
matter be left to the legislature. The Gentleman is right. In any event, as envisioned,
no amendment through the power of initiative can be called until after five years
from the date of the ratification of this Constitution. Therefore, the first amendment
that could be proposed through the exercise of this initiative power would be after
five years. It is reasonably expected that within that five-year period, the National
Assembly can come up with the appropriate rules governing the exercise of this
power.
FR. BERNAS. Since the matter is left to the legislature — the details on
how this is to be carried out — is it possible that, in effect, what will be presented to
the people for ratification is the work of the legislature rather than of the people?
Does this provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even the
legislature itself as a body could propose that amendment, maybe individually or
collectively, if it fails to muster the three-fourths vote in order to constitute itself as
a constituent assembly and submit that proposal to the people for ratification
through the process of an initiative.
xxx xxx xxx
MS. AQUINO. Do I understand from the sponsor that the intention in the
proposal is to vest constituent power in the people to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal in
terms of institutionalizing popular participation in the drafting of the Constitution or
in the amendment thereof, but I would have a lot of difficulties in terms of
accepting the draft of Section 2, as written. Would the sponsor agree with me that
in the hierarchy of legal mandate, constituent power has primacy over all other legal
mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the hierarchy
of legal values, the Constitution is source of all legal mandates and that therefore
we require a great deal of circumspection in the drafting and in the amendments of
the Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of constituent
power we have a separate article in the constitution that would specifically cover
the process and the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are
drafted now, to again concede to the legislature the process or the requirement of
determining the mechanics of amending the Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this could very well be placed in
the hands of the National Assembly, not unless we can incorporate into this
provision the mechanics that would adequately cover all the conceivable situations.
33
It was made clear during the interpellations that the aforementioned Section 2 is
limited to proposals to AMEND — not to REVISE — the Constitution; thus:
MR. SUAREZ. . . . This proposal was suggested on the theory that this
matter of initiative, which came about because of the extraordinary developments
this year, has to be separated from the traditional modes of amending the
Constitution as embodied in Section 1. The committee members felt that this
system of initiative should not extend to the revision of the entire Constitution, so
we removed it from the operation of Section 1 of the proposed Article on
Amendment or Revision. 34
xxx xxx xxx
MS. AQUINO. In which case, I am seriously bothered by providing this
process of initiative as a separate section in the Article on Amendment. Would the
sponsor be amenable to accepting an amendment in terms of realigning Section 2
as another subparagraph (c) of Section 1, instead of setting it up as another
separate section as if it were a self-executing provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while
ago, this process of initiative is limited to the matter of amendment and should not
expand into a revision which contemplates a total overhaul of the Constitution. That
was the sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to include the process of
revision; whereas the process of initiation to amend, which is given to the public,
would only apply to amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in the
Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by then
Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the
entire Section 2 with the following:
MR. DAVIDE. Madam President, I have modified the proposed
amendment after taking into account the modifications submitted by the sponsor
himself and the honorable Commissioners Guingona, Monsod, Rama, Ople, de los
Reyes and Romulo. The modified amendment in substitution of the proposed
Section 2 will now read as follows: "SECTION 2. — AMENDMENTS TO THIS
CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH
INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL
NUMBER Of REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF.
NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE
EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF
THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed
amendment is reflective of the sense contained in Section 2 of our completed
Committee Report No. 7, we accept the proposed amendment. 36
The interpellations which ensued on the proposed modified amendment to Section
2 clearly showed that it was a legislative act which must implement the exercise of
the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it possible for
the legislature to set forth certain procedures to carry out the initiative. . .?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's amendment does not prevent the
legislature from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the
implementation of this particular right would be subject to legislation, provided the
legislature cannot determine anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the
proper form for submission to the people, may be subject to legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate.
In other words, none of the procedures to be proposed by the legislative body must
diminish or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures
which I have discussed be legislated?
MR. DAVIDE. Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly confines
initiative to AMENDMENTS to — NOT REVISION of — the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed
amendment on line 1 refers to "amendment." Does it not cover the word "revision"
as defined by Commissioner Padilla when he made the distinction between the
words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision"
should be covered by Section 1. So insofar as initiative is concerned, it can only
relate to "amendments" not "revision." 38
Commissioner Davide further emphasized that the process of proposing
amendments through initiative must be more rigorous and difficult than the
initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this proposal, what
is involved is an amendment to the Constitution. To amend a Constitution would
ordinarily require a proposal by the National Assembly by a vote of three-fourths;
and to call a constitutional convention would require a higher number. Moreover,
just to submit the issue of calling a constitutional convention, a majority of the
National Assembly is required, the import being that the process of amendment
must be made more rigorous and difficult than probably initiating an ordinary
legislation or putting an end to a law proposed by the National Assembly by way of a
referendum. I cannot agree to reducing the requirement approved by the
Committee on the Legislative because it would require another voting by the
Committee, and the voting as precisely based on a requirement of 10 percent.
Perhaps, I might present such a proposal, by way of an amendment, when the
Commission shall take up the Article on the Legislative or on the National Assembly
on plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to amendments, and
the final version, which the Commission approved by a vote of 31 in favor and 3
against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads
as follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST
TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH
EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT
OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION
SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40
The entire proposed Article on Amendments or Revisions was approved on second
reading on 9 July 1986. 41 Thereafter, upon his motion for reconsideration,
Commissioner Gascon was allowed to introduce an amendment to Section 2 which,
nevertheless, was withdrawn. In view thereof, the Article was again approved on
Second and Third Readings on 1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2 be
amended by changing "percent" to "per centum" and "thereof" to "therein" and
deleting the phrase "by law" in the second paragraph so that said paragraph reads:
The Congress 43 shall provide for the implementation of the exercise of this right.
44 This amendment was approved and is the text of the present second paragraph
of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the
Constitution under Section 2 of Article XVII of the Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of this right? Those
who answer the question in the affirmative, like the private respondents and
intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of
the right than through the passage of a statute or legislative act. This is the essence
or rationale of the last minute amendment by the Constitutional Commission to
substitute the last paragraph of Section 2 of Article XVII then reading:
The Congress 45 shall by law provide for the implementation of the exercise of this
right.
with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide
for the rules implementing the exercise of the right. The "rules" means "the details
on how [the right] is to be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative
to propose amendments to the Constitution. The Act is a consolidation of House Bill
No. 21505 and Senate Bill No. 17. The former was prepared by the Committee on
Suffrage and Electoral Reforms of the House of Representatives on the basis of two
House Bills referred to it, viz., (a) House Bill No. 497, 47 which dealt with the
initiative and referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48
which dealt with the subject matter of House Bill No. 497, as well as with initiative
and referendum under Section 3 of Article X (Local Government) and initiative
provided for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17 49
solely dealt with initiative and referendum concerning ordinances or resolutions of
local government units. The Bicameral Conference Committee consolidated Senate
Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently
approved on 8 June 1989 by the Senate 50 and by the House of Representatives. 51
This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to
"provide for the implementation of the exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of
the Act does not suggest an initiative on amendments to the Constitution. The said
section reads:
Sec. 2. Statement and Policy. — The power of the people under a system of
initiative and referendum to directly propose, enact, approve or reject, in whole or
in part, the Constitution, laws, ordinances, or resolutions passed by any legislative
body upon compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed afterthought. That
word is neither germane nor relevant to said section, which exclusively relates to
initiative and referendum on national laws and local laws, ordinances, and
resolutions. That section is silent as to amendments on the Constitution. As pointed
out earlier, initiative on the Constitution is confined only to proposals to AMEND.
The people are not accorded the power to "directly propose, enact, approve, or
reject, in whole or in part, the Constitution" through the system of initiative. They
can only do so with respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section was lifted
from Section 1 of Senate Bill No. 17, which solely referred to a statement of policy
on local initiative and referendum and appropriately used the phrases "propose and
enact," "approve or reject" and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative
on amendments to the Constitution and mentions it as one of the three systems of
initiative, and that Section 5 (Requirements) restates the constitutional
requirements as to the percentage of the registered voters who must submit the
proposal. But unlike in the case of the other systems of initiative, the Act does not
provide for the contents of a petition for initiative on the Constitution. Section 5,
paragraph (c) requires, among other things, statement of the proposed law sought
to be enacted, approved or rejected, amended or repealed, as the case may be. It
does not include, as among the contents of the petition, the provisions of the
Constitution sought to be amended, in the case of initiative on the Constitution. Said
paragraph (c) reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or
rejected, amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100)
words which shall be legibly written or printed at the top of every page of the
petition. (Emphasis supplied).
The use of the clause "proposed laws sought to be enacted, approved or rejected,
amended or repealed" only strengthens the conclusion that Section 2, quoted
earlier, excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum
(Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is
provided for initiative on the Constitution. This conspicuous silence as to the latter
simply means that the main thrust of the Act is initiative and referendum on
national and local laws. If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it could have
provided for a subtitle therefor, considering that in the order of things, the primacy
of interest, or hierarchy of values, the right of the people to directly propose
amendments to the Constitution is far more important than the initiative on
national and local laws.
We cannot accept the argument that the initiative on amendments to the
Constitution is subsumed under the subtitle on National Initiative and Referendum
because it is national in scope. Our reading of Subtitle II (National Initiative and
Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for
doubt that the classification is not based on the scope of the initiative involved, but
on its nature and character. It is "national initiative," if what is proposed to be
adopted or enacted is a national law, or a law which only Congress can pass. It is
"local initiative" if what is proposed to be adopted or enacted is a law, ordinance, or
resolution which only the legislative bodies of the governments of the autonomous
regions, provinces, cities, municipalities, and barangays can pass. This classification
of initiative into national and local is actually based on Section 3 of the Act, which
we quote for emphasis and clearer understanding:
Sec. 3. Definition of terms —
xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing
amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a
national legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to
enact a regional, provincial, city, municipal, or barangay law, resolution or
ordinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should have been a
subtitle on initiative on amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not accurate.
Provisions not germane to the subtitle on National Initiative and Referendum are
placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved by the
majority of the votes cast in the plebiscite shall become effective as to the day of
the plebiscite.
(c) A national or local initiative proposition approved by majority of the
votes cast in an election called for the purpose shall become effective fifteen (15)
days after certification and proclamation of the Commission. (Emphasis supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect
initiative with the legislative bodies of local governments; thus:
Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as
defined by law, may file a petition for indirect initiative with the House of
Representatives, and other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the
findings of sufficiency or insufficiency of the petition for initiative or referendum,
which could be petitions for both national and local initiative and referendum.
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local
Initiative and Referendum is misplaced, 54 since the provision therein applies to
both national and local initiative and referendum. It reads:
Sec. 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the
proper courts from declaring null and void any proposition approved pursuant to
this Act for violation of the Constitution or want of capacity of the local legislative
body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing
for the details in the implementation of initiative and referendum on national and
local legislation thereby giving them special attention, it failed, rather intentionally,
to do so on the system of initiative on amendments to the Constitution. Anent the
initiative on national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and
the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required
number of votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or in
a newspaper of general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition. 55
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of
registered voters for the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative body's failure to favorably act thereon, and
the invocation of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the
local government unit concerned as to whether the required number of signatures
have been obtained;

(h) The setting of a date by the COMELEC for the submission of the
proposition to the registered voters for their approval, which must be within the
period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No.
6735, in all of its twenty-three sections, merely (a) mentions, the word
"Constitution" in Section 2; (b) defines "initiative on the Constitution" and includes it
in the enumeration of the three systems of initiative in Section 3; (c) speaks of
"plebiscite" as the process by which the proposition in an initiative on the
Constitution may be approved or rejected by the people; (d) reiterates the
constitutional requirements as to the number of voters who should sign the
petition; and (e) provides for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the
paramount system of initiative. RA. No. 6735 thus delivered a humiliating blow to
the system of initiative on amendments to the Constitution by merely paying it a
reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned. Its lacunae on this substantive
matter are fatal and cannot be cured by "empowering" the COMELEC "to
promulgate such rules and regulations as may be necessary to carry out the
purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed in a
Latin maxim: potestas delegata non delegari potest. 59 The recognized exceptions
to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of
Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2)
of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial
functions, to promulgate rules and regulations is a form of delegation of legislative
authority under no. 5 above. However, in every case of permissible delegation,
there must be a showing that the delegation itself is valid. It is valid only if the law
(a) is complete in itself, setting forth therein the policy to be executed, carried out,
or implemented by the delegate; and (b) fixes a standard — the limits of which are
sufficiently determinate and determinable — to which the delegate must conform
in the performance of his functions. 61 A sufficient standard is one which defines
legislative policy, marks its limits, maps out its boundaries and specifies the public
agency to apply it. It indicates the circumstances under which the legislative
command is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned, R.A.
No. 6735 miserably failed to satisfy both requirements in subordinate legislation.
The delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly propose
amendments to the Constitution through the system of initiative. It does not have
that power under R.A. No. 6735. Reliance on the COMELEC's power under Section
2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations
referred to therein are those promulgated by the COMELEC under (a) Section 3 of
Article IX-C of the Constitution, or (b) a law where subordinate legislation is
authorized and which satisfies the "completeness" and the "sufficient standard"
tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the
power of Congress to implement the right to initiate constitutional amendments, or
that it has validly vested upon the COMELEC the power of subordinate legislation
and that COMELEC Resolution No. 2300 is valid, the COMELEC acted without
jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735,
a petition for initiative on the Constitution must be signed by at least 12% of the
total number of registered voters of which every legislative district is represented by
at least 3% of the registered voters therein. The Delfin Petition does not contain
signatures of the required number of voters. Delfin himself admits that he has not
yet gathered signatures and that the purpose of his petition is primarily to obtain
assistance in his drive to gather signatures. Without the required signatures, the
petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing.
The petition then is the initiatory pleading. Nothing before its filing is cognizable by
the COMELEC, sitting en banc. The only participation of the COMELEC or its
personnel before the filing of such petition are (1) to prescribe the form of the
petition; 63 (2) to issue through its Election Records and Statistics Office a certificate
on the total number of registered voters in each legislative district; 64 (3) to assist,
through its election registrars, in the establishment of signature stations; 65 and (4)
to verify, through its election registrars, the signatures on the basis of the registry
list of voters, voters' affidavits, and voters' identification cards used in the
immediately preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and
COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of by
the COMELEC. The respondent Commission must have known that the petition does
not fall under any of the actions or proceedings under the COMELEC Rules of
Procedure or under Resolution No. 2300, for which reason it did not assign to the
petition a docket number. Hence, the said petition was merely entered as UND,
meaning, undocketed. That petition was nothing more than a mere scrap of paper,
which should not have been dignified by the Order of 6 December 1996, the hearing
on 12 December 1996, and the order directing Delfin and the oppositors to file their
memoranda or oppositions. In so dignifying it, the COMELEC acted without
jurisdiction or with grave abuse of discretion and merely wasted its time, energy,
and resources.
The foregoing considered, further discussion on the issue of whether the proposal
to lift the term limits of elective national and local officials is an amendment to, and
not a revision of, the Constitution is rendered unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently
enjoined from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the
Constitution should no longer be kept in the cold; it should be given flesh and blood,
energy and strength. Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the right of the people
under that system.
WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative
on amendments to the Constitution, and to have failed to provide sufficient
standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission
on Elections prescribing rules and regulations on the conduct of initiative or
amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the
DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent
as against the Commission on Elections, but is LIFTED as against private
respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
LAMBINO VS COMELEC
NOTE: nay separate opinion
DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the
Commission on Elections ("COMELEC") denying due course to an initiative petition
to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and
Erico B. Aumentado ("Lambino Group"), with other groups1 and individuals,
commenced gathering signatures for an initiative petition to change the 1987
Constitution. On 25 August 2006, the Lambino Group filed a petition with the
COMELEC to hold a plebiscite that will ratify their initiative petition under Section
5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and
Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952
individuals constituting at least twelve per centum (12%) of all registered voters,
with each legislative district represented by at least three per centum (3%) of its
registered voters. The Lambino Group also claimed that COMELEC election
registrars had verified the signatures of the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by modifying
Sections 1-7 of Article VI (Legislative Department)4 and Sections 1-4 of Article VII
(Executive Department)5 and by adding Article XVIII entitled "Transitory
Provisions."6 These proposed changes will shift the present Bicameral-Presidential
system to a Unicameral-Parliamentary form of government. The Lambino Group
prayed that after due publication of their petition, the COMELEC should submit the
following proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987
CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT
FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the
COMELEC indicating modifications in the proposed Article XVIII (Transitory
Provisions) of their initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due course to the
Lambino Group's petition for lack of an enabling law governing initiative petitions to
amend the Constitution. The COMELEC invoked this Court's ruling in Santiago v.
Commission on Elections8 declaring RA 6735 inadequate to implement the initiative
clause on proposals to amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of
certiorari and mandamus to set aside the COMELEC Resolution of 31 August 2006
and to compel the COMELEC to give due course to their initiative petition. The
Lambino Group contends that the COMELEC committed grave abuse of discretion in
denying due course to their petition since Santiago is not a binding precedent.
Alternatively, the Lambino Group claims that Santiago binds only the parties to that
case, and their petition deserves cognizance as an expression of the "will of the
sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require
respondent COMELEC Commissioners to show cause why they should not be cited
in contempt for the COMELEC's verification of signatures and for "entertaining" the
Lambino Group's petition despite the permanent injunction in Santiago. The Court
treated the Binay Group's petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General joined causes
with the petitioners, urging the Court to grant the petition despite the Santiago
ruling. The Solicitor General proposed that the Court treat RA 6735 and its
implementing rules "as temporary devises to implement the system of initiative."
Various groups and individuals sought intervention, filing pleadings supporting or
opposing the Lambino Group's petition. The supporting intervenors10 uniformly
hold the view that the COMELEC committed grave abuse of discretion in relying on
Santiago. On the other hand, the opposing intervenors11 hold the contrary view and
maintain that Santiago is a binding precedent. The opposing intervenors also
challenged (1) the Lambino Group's standing to file the petition; (2) the validity of
the signature gathering and verification process; (3) the Lambino Group's
compliance with the minimum requirement for the percentage of voters supporting
an initiative petition under Section 2, Article XVII of the 1987 Constitution;12 (4) the
nature of the proposed changes as revisions and not mere amendments as provided
under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Group's
compliance with the requirement in Section 10(a) of RA 6735 limiting initiative
petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26 September
2006. After receiving the parties' memoranda, the Court considered the case
submitted for resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with Section 2, Article
XVII of the Constitution on amendments to the Constitution through a people's
initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735
"incomplete, inadequate or wanting in essential terms and conditions" to
implement the initiative clause on proposals to amend the Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying due
course to the Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements of the
Constitution for conducting a people's initiative. Thus, there is even no need to
revisit Santiago, as the present petition warrants dismissal based alone on the
Lambino Group's glaring failure to comply with the basic requirements of the
Constitution. For following the Court's ruling in Santiago, no grave abuse of
discretion is attributable to the Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the
Constitution on Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional provision
that allows a people's initiative to propose amendments to the Constitution. This
section states:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the
people through initiative upon a petition of at least twelve per centum of the total
number of registered voters of which every legislative district must be represented
by at least three per centum of the registered voters therein. x x x x (Emphasis
supplied)
The deliberations of the Constitutional Commission vividly explain the meaning of
an amendment "directly proposed by the people through initiative upon a petition,"
thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to
propose a constitutional amendment. Is the draft of the proposed constitutional
amendment ready to be shown to the people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them
before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft shown to them
and they are asked whether or not they want to propose this constitutional
amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it
around for signature.13 (Emphasis supplied)
Clearly, the framers of the Constitution intended that the "draft of the proposed
constitutional amendment" should be "ready and shown" to the people "before"
they sign such proposal. The framers plainly stated that "before they sign there is
already a draft shown to them." The framers also "envisioned" that the people
should sign on the proposal itself because the proponents must "prepare that
proposal and pass it around for signature."
The essence of amendments "directly proposed by the people through initiative
upon a petition" is that the entire proposal on its face is a petition by the people.
This means two essential elements must be present. First, the people must author
and thus sign the entire proposal. No agent or representative can sign on their
behalf. Second, as an initiative upon a petition, the proposal must be embodied in a
petition.
These essential elements are present only if the full text of the proposed
amendments is first shown to the people who express their assent by signing such
complete proposal in a petition. Thus, an amendment is "directly proposed by the
people through initiative upon a petition" only if the people sign on a petition that
contains the full text of the proposed amendments.
The full text of the proposed amendments may be either written on the face of the
petition, or attached to it. If so attached, the petition must state the fact of such
attachment. This is an assurance that every one of the several millions of signatories
to the petition had seen the full text of the proposed amendments before signing.
Otherwise, it is physically impossible, given the time constraint, to prove that every
one of the millions of signatories had seen the full text of the proposed
amendments before signing.
The framers of the Constitution directly borrowed14 the concept of people's
initiative from the United States where various State constitutions incorporate an
initiative clause. In almost all States15 which allow initiative petitions, the
unbending requirement is that the people must first see the full text of the
proposed amendments before they sign to signify their assent, and that the people
must sign on an initiative petition that contains the full text of the proposed
amendments.16
The rationale for this requirement has been repeatedly explained in several
decisions of various courts. Thus, in Capezzuto v. State Ballot Commission, the
Supreme Court of Massachusetts, affirmed by the First Circuit Court of Appeals,
declared:
[A] signature requirement would be meaningless if the person supplying the
signature has not first seen what it is that he or she is signing. Further, and more
importantly, loose interpretation of the subscription requirement can pose a
significant potential for fraud. A person permitted to describe orally the contents of
an initiative petition to a potential signer, without the signer having actually
examined the petition, could easily mislead the signer by, for example, omitting,
downplaying, or even flatly misrepresenting, portions of the petition that might not
be to the signer's liking. This danger seems particularly acute when, in this case, the
person giving the description is the drafter of the petition, who obviously has a
vested interest in seeing that it gets the requisite signatures to qualify for the
ballot.17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by initiative
commonly are described in similar terms. x x x (The purpose of the full text
requirement is to provide sufficient information so that registered voters can
intelligently evaluate whether to sign the initiative petition."); x x x (publication of
full text of amended constitutional provision required because it is "essential for the
elector to have x x x the section which is proposed to be added to or subtracted
from. If he is to vote intelligently, he must have this knowledge. Otherwise in many
instances he would be required to vote in the dark.") (Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of the nature
and effect of that which is proposed" and failure to do so is "deceptive and
misleading" which renders the initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that the petition
must set forth the full text of the proposed amendments. However, the
deliberations of the framers of our Constitution clearly show that the framers
intended to adopt the relevant American jurisprudence on people's initiative. In
particular, the deliberations of the Constitutional Commission explicitly reveal that
the framers intended that the people must first see the full text of the proposed
amendments before they sign, and that the people must sign on a petition
containing such full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative
and Referendum Act that the Lambino Group invokes as valid, requires that the
people must sign the "petition x x x as signatories."
The proponents of the initiative secure the signatures from the people. The
proponents secure the signatures in their private capacity and not as public officials.
The proponents are not disinterested parties who can impartially explain the
advantages and disadvantages of the proposed amendments to the people. The
proponents present favorably their proposal to the people and do not present the
arguments against their proposal. The proponents, or their supporters, often pay
those who gather the signatures.
Thus, there is no presumption that the proponents observed the constitutional
requirements in gathering the signatures. The proponents bear the burden of
proving that they complied with the constitutional requirements in gathering the
signatures - that the petition contained, or incorporated by attachment, the full text
of the proposed amendments.
The Lambino Group did not attach to their present petition with this Court a copy of
the paper that the people signed as their initiative petition. The Lambino Group
submitted to this Court a copy of a signature sheet20 after the oral arguments of 26
September 2006 when they filed their Memorandum on 11 October 2006. The
signature sheet with this Court during the oral arguments was the signature sheet
attached21 to the opposition in intervention filed on 7 September 2006 by
intervenor Atty. Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the signature sheet
attached to the Lambino Group's Memorandum are the same. We reproduce below
the signature sheet in full:
Province:
City/Municipality:
No. of

Verified

Signatures:

Legislative District:

Barangay:
4

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF

THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE
PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM
OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND
ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?"

I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature

herein which shall form part of the petition for initiative to amend the Constitution
signifies my support for the filing thereof.

Precinct Number 5

Name

Last Name, First Name, M.I.

Address

Birthdate

MM/DD/YY

Signature

Verification 6

3

9
10
_________________
Barangay Official
(Print Name and Sign)
_________________
Witness
(Print Name and Sign)
__________________
Witness
(Print Name and Sign)
There is not a single word, phrase, or sentence of text of the Lambino Group's
proposed changes in the signature sheet. Neither does the signature sheet state
that the text of the proposed changes is attached to it. Petitioner Atty. Raul Lambino
admitted this during the oral arguments before this Court on 26 September 2006.
The signature sheet merely asks a question whether the people approve a shift from
the Bicameral-Presidential to the Unicameral-Parliamentary system of government.
The signature sheet does not show to the people the draft of the proposed changes
before they are asked to sign the signature sheet. Clearly, the signature sheet is not
the "petition" that the framers of the Constitution envisioned when they formulated
the initiative clause in Section 2, Article XVII of the Constitution.
Petitioner Atty. Lambino, however, explained that during the signature-gathering
from February to August 2006, the Lambino Group circulated, together with the
signature sheets, printed copies of the Lambino Group's draft petition which they
later filed on 25 August 2006 with the COMELEC. When asked if his group also
circulated the draft of their amended petition filed on 30 August 2006 with the
COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty.
Lambino changed his answer and stated that what his group circulated was the draft
of the 30 August 2006 amended petition, not the draft of the 25 August 2006
petition.
The Lambino Group would have this Court believe that they prepared the draft of
the 30 August 2006 amended petition almost seven months earlier in February 2006
when they started gathering signatures. Petitioner Erico B. Aumentado's
"Verification/Certification" of the 25 August 2006 petition, as well as of the 30
August 2006 amended petition, filed with the COMELEC, states as follows:
I have caused the preparation of the foregoing [Amended] Petition in my personal
capacity as a registered voter, for and on behalf of the Union of Local Authorities of
the Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached, and as
representative of the mass of signatories hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the
present petition. However, the "Official Website of the Union of Local Authorities of
the Philippines"22 has posted the full text of Resolution No. 2006-02, which
provides:
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the Philippines
(ULAP) to adopt a common stand on the approach to support the proposals of the
People's Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the
ULAP Joint Declaration for Constitutional Reforms signed by the members of the
ULAP and the majority coalition of the House of Representatives in Manila Hotel
sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter Change created by Her
Excellency to recommend amendments to the 1987 Constitution has submitted its
final report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political developments in Congress
which militates against the use of the expeditious form of amending the 1987
Constitution;
WHEREAS, subject to the ratification of its institutional members and the failure of
Congress to amend the Constitution as a constituent assembly, ULAP has
unanimously agreed to pursue the constitutional reform agenda through People's
Initiative and Referendum without prejudice to other pragmatic means to pursue
the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-
LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP)
SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting held on 14
January 2006 at the Century Park Hotel, Manila.23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare
the 25 August 2006 petition, or the 30 August 2006 amended petition, filed with the
COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals (sic) of the
Consulatative (sic) Commission on Charter Change through people's initiative and
referendum as a mode of amending the 1987 Constitution." The proposals of the
Consultative Commission24 are vastly different from the proposed changes of the
Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition
filed with the COMELEC.
For example, the proposed revisions of the Consultative Commission affect all
provisions of the existing Constitution, from the Preamble to the Transitory
Provisions. The proposed revisions have profound impact on the Judiciary and the
National Patrimony provisions of the existing Constitution, provisions that the
Lambino Group's proposed changes do not touch. The Lambino Group's proposed
changes purport to affect only Articles VI and VII of the existing Constitution,
including the introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six
months before the filing of the 25 August 2006 petition or the 30 August 2006
amended petition with the COMELEC. However, ULAP Resolution No. 2006-02 does
not establish that ULAP or the Lambino Group caused the circulation of the draft
petition, together with the signature sheets, six months before the filing with the
COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the
Lambino Group's claim that they circulated the draft petition together with the
signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft
petition or to the Lambino Group's proposed changes.
In their Manifestation explaining their amended petition before the COMELEC, the
Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the proposed
amendments alleged in the Petition, more specifically, paragraph 3 of Section 4 and
paragraph 2 of Section 5 of the Transitory Provisions were inaccurately stated and
failed to correctly reflect their proposed amendments.
The Lambino Group did not allege that they were amending the petition because
the amended petition was what they had shown to the people during the February
to August 2006 signature-gathering. Instead, the Lambino Group alleged that the
petition of 25 August 2006 "inaccurately stated and failed to correctly reflect their
proposed amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30 August
2006 amended petition with the COMELEC that they circulated printed copies of the
draft petition together with the signature sheets. Likewise, the Lambino Group did
not allege in their present petition before this Court that they circulated printed
copies of the draft petition together with the signature sheets. The signature sheets
do not also contain any indication that the draft petition is attached to, or circulated
with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that the
Lambino Group first claimed that they circulated the "petition for initiative filed with
the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a
signer who did not read the measure attached to a referendum petition cannot
question his signature on the ground that he did not understand the nature of the
act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the
registered voters who signed the signature sheets circulated together with the
petition for initiative filed with the COMELEC below, are presumed to have
understood the proposition contained in the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the petition for
initiative filed with the COMELEC" appears an afterthought, made after the
intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province
Chapters) and Atty. Quadra had pointed out that the signature sheets did not
contain the text of the proposed changes. In their Consolidated Reply, the Lambino
Group alleged that they circulated "the petition for initiative" but failed to mention
the amended petition. This contradicts what Atty. Lambino finally stated during the
oral arguments that what they circulated was the draft of the amended petition of
30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer
who did not read the measure attached to a referendum petition cannot question
his signature on the ground that he did not understand the nature of the act." The
Lambino Group quotes an authority that cites a proposed change attached to the
petition signed by the people. Even the authority the Lambino Group quotes
requires that the proposed change must be attached to the petition. The same
authority the Lambino Group quotes requires the people to sign on the petition
itself.
Indeed, it is basic in American jurisprudence that the proposed amendment must be
incorporated with, or attached to, the initiative petition signed by the people. In the
present initiative, the Lambino Group's proposed changes were not incorporated
with, or attached to, the signature sheets. The Lambino Group's citation of Corpus
Juris Secundum pulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from
February to August 2006 during the signature-gathering period, the draft of the
petition or amended petition they filed later with the COMELEC. The Lambino Group
are less than candid with this Court in their belated claim that they printed and
circulated, together with the signature sheets, the petition or amended petition.
Nevertheless, even assuming the Lambino Group circulated the amended petition
during the signature-gathering period, the Lambino Group admitted circulating only
very limited copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they printed only
100,000 copies of the draft petition they filed more than six months later with the
COMELEC. Atty. Lambino added that he also asked other supporters to print
additional copies of the draft petition but he could not state with certainty how
many additional copies the other supporters printed. Atty. Lambino could only
assure this Court of the printing of 100,000 copies because he himself caused the
printing of these 100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the
Lambino Group expressly admits that "petitioner Lambino initiated the printing and
reproduction of 100,000 copies of the petition for initiative x x x."25 This admission
binds the Lambino Group and establishes beyond any doubt that the Lambino
Group failed to show the full text of the proposed changes to the great majority of
the people who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have received
with certainty one copy each of the petition, assuming a 100 percent distribution
with no wastage. If Atty. Lambino and company attached one copy of the petition to
each signature sheet, only 100,000 signature sheets could have circulated with the
petition. Each signature sheet contains space for ten signatures. Assuming ten
people signed each of these 100,000 signature sheets with the attached petition,
the maximum number of people who saw the petition before they signed the
signature sheets would not exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible
for all or a great majority of the 6.3 million signatories to have seen the petition
before they signed the signature sheets. The inescapable conclusion is that the
Lambino Group failed to show to the 6.3 million signatories the full text of the
proposed changes. If ever, not more than one million signatories saw the petition
before they signed the signature sheets.
In any event, the Lambino Group's signature sheets do not contain the full text of
the proposed changes, either on the face of the signature sheets, or as attachment
with an indication in the signature sheet of such attachment. Petitioner Atty.
Lambino admitted this during the oral arguments, and this admission binds the
Lambino Group. This fact is also obvious from a mere reading of the signature sheet.
This omission is fatal. The failure to so include the text of the proposed changes in
the signature sheets renders the initiative void for non-compliance with the
constitutional requirement that the amendment must be "directly proposed by the
people through initiative upon a petition." The signature sheet is not the "petition"
envisioned in the initiative clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature
sheets did not see the full text of the proposed changes before signing. They could
not have known the nature and effect of the proposed changes, among which are:
1. The term limits on members of the legislature will be lifted and thus members of
Parliament can be re-elected indefinitely;26
2. The interim Parliament can continue to function indefinitely until its members,
who are almost all the present members of Congress, decide to call for new
parliamentary elections. Thus, the members of the interim Parliament will
determine the expiration of their own term of office; 27
3. Within 45 days from the ratification of the proposed changes, the interim
Parliament shall convene to propose further amendments or revisions to the
Constitution.28
These three specific amendments are not stated or even indicated in the Lambino
Group's signature sheets. The people who signed the signature sheets had no idea
that they were proposing these amendments. These three proposed changes are
highly controversial. The people could not have inferred or divined these proposed
changes merely from a reading or rereading of the contents of the signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his group
assured the people during the signature-gathering that the elections for the regular
Parliament would be held during the 2007 local elections if the proposed changes
were ratified before the 2007 local elections. However, the text of the proposed
changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the
amended petition, states:
Section 5(2). The interim Parliament shall provide for the election of the members
of Parliament, which shall be synchronized and held simultaneously with the
election of all local government officials. x x x x (Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held
simultaneously with the 2007 local elections. This section merely requires that the
elections for the regular Parliament shall be held simultaneously with the local
elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed
changes, could have easily written the word "next" before the phrase "election of all
local government officials." This would have insured that the elections for the
regular Parliament would be held in the next local elections following the ratification
of the proposed changes. However, the absence of the word "next" allows the
interim Parliament to schedule the elections for the regular Parliament
simultaneously with any future local elections.
Thus, the members of the interim Parliament will decide the expiration of their own
term of office. This allows incumbent members of the House of Representatives to
hold office beyond their current three-year term of office, and possibly even beyond
the five-year term of office of regular members of the Parliament. Certainly, this is
contrary to the representations of Atty. Lambino and his group to the 6.3 million
people who signed the signature sheets. Atty. Lambino and his group deceived the
6.3 million signatories, and even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative petition that
contains the full text of the proposed amendments to avoid fraud or
misrepresentation. In the present initiative, the 6.3 million signatories had to rely on
the verbal representations of Atty. Lambino and his group because the signature
sheets did not contain the full text of the proposed changes. The result is a grand
deception on the 6.3 million signatories who were led to believe that the proposed
changes would require the holding in 2007 of elections for the regular Parliament
simultaneously with the local elections.
The Lambino Group's initiative springs another surprise on the people who signed
the signature sheets. The proposed changes mandate the interim Parliament to
make further amendments or revisions to the Constitution. The proposed Section
4(4), Article XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the
interim Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and a
strong bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a "surplusage"
and the Court and the people should simply ignore it. Far from being a surplusage,
this provision invalidates the Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-
Presidential to the Unicameral-Parliamentary system. American jurisprudence on
initiatives outlaws this as logrolling - when the initiative petition incorporates an
unrelated subject matter in the same petition. This puts the people in a dilemma
since they can answer only either yes or no to the entire proposition, forcing them
to sign a petition that effectively contains two propositions, one of which they may
find unacceptable.
Under American jurisprudence, the effect of logrolling is to nullify the entire
proposition and not only the unrelated subject matter. Thus, in Fine v. Firestone,29
the Supreme Court of Florida declared:
Combining multiple propositions into one proposal constitutes "logrolling," which, if
our judicial responsibility is to mean anything, we cannot permit. The very
broadness of the proposed amendment amounts to logrolling because the
electorate cannot know what it is voting on - the amendment's proponents'
simplistic explanation reveals only the tip of the iceberg. x x x x The ballot must give
the electorate fair notice of the proposed amendment being voted on. x x x x The
ballot language in the instant case fails to do that. The very broadness of the
proposal makes it impossible to state what it will affect and effect and violates the
requirement that proposed amendments embrace only one subject. (Emphasis
supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30
the Supreme Court of Alaska warned against "inadvertence, stealth and fraud" in
logrolling:
Whenever a bill becomes law through the initiative process, all of the problems that
the single-subject rule was enacted to prevent are exacerbated. There is a greater
danger of logrolling, or the deliberate intermingling of issues to increase the
likelihood of an initiative's passage, and there is a greater opportunity for
"inadvertence, stealth and fraud" in the enactment-by-initiative process. The
drafters of an initiative operate independently of any structured or supervised
process. They often emphasize particular provisions of their proposition, while
remaining silent on other (more complex or less appealing) provisions, when
communicating to the public. x x x Indeed, initiative promoters typically use
simplistic advertising to present their initiative to potential petition-signers and
eventual voters. Many voters will never read the full text of the initiative before the
election. More importantly, there is no process for amending or splitting the several
provisions in an initiative proposal. These difficulties clearly distinguish the initiative
from the legislative process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further
amendments or revisions to be undertaken by the interim Parliament as a
constituent assembly. The people who signed the signature sheets could not have
known that their signatures would be used to propose an amendment mandating
the interim Parliament to propose further amendments or revisions to the
Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the
interim Parliament to amend or revise again the Constitution within 45 days from
ratification of the proposed changes, or before the May 2007 elections. In the
absence of the proposed Section 4(4), the interim Parliament has the discretion
whether to amend or revise again the Constitution. With the proposed Section 4(4),
the initiative proponents want the interim Parliament mandated to immediately
amend or revise again the Constitution.
However, the signature sheets do not explain the reason for this rush in amending
or revising again so soon the Constitution. The signature sheets do not also explain
what specific amendments or revisions the initiative proponents want the interim
Parliament to make, and why there is a need for such further amendments or
revisions. The people are again left in the dark to fathom the nature and effect of
the proposed changes. Certainly, such an initiative is not "directly proposed by the
people" because the people do not even know the nature and effect of the
proposed changes.
There is another intriguing provision inserted in the Lambino Group's amended
petition of 30 August 2006. The proposed Section 4(3) of the Transitory Provisions
states:
Section 4(3). Senators whose term of office ends in 2010 shall be members of
Parliament until noon of the thirtieth day of June 2010.
After 30 June 2010, not one of the present Senators will remain as member of
Parliament if the interim Parliament does not schedule elections for the regular
Parliament by 30 June 2010. However, there is no counterpart provision for the
present members of the House of Representatives even if their term of office will all
end on 30 June 2007, three years earlier than that of half of the present Senators.
Thus, all the present members of the House will remain members of the interim
Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime
Minister exercises all the powers of the President. If the interim Parliament does not
schedule elections for the regular Parliament by 30 June 2010, the Prime Minister
will come only from the present members of the House of Representatives to the
exclusion of the present Senators.
The signature sheets do not explain this discrimination against the Senators. The 6.3
million people who signed the signature sheets could not have known that their
signatures would be used to discriminate against the Senators. They could not have
known that their signatures would be used to limit, after 30 June 2010, the interim
Parliament's choice of Prime Minister only to members of the existing House of
Representatives.
An initiative that gathers signatures from the people without first showing to the
people the full text of the proposed amendments is most likely a deception, and can
operate as a gigantic fraud on the people. That is why the Constitution requires that
an initiative must be "directly proposed by the people x x x in a petition" - meaning
that the people must sign on a petition that contains the full text of the proposed
amendments. On so vital an issue as amending the nation's fundamental law, the
writing of the text of the proposed amendments cannot be hidden from the people
under a general or special power of attorney to unnamed, faceless, and unelected
individuals.
The Constitution entrusts to the people the power to directly propose amendments
to the Constitution. This Court trusts the wisdom of the people even if the members
of this Court do not personally know the people who sign the petition. However, this
trust emanates from a fundamental assumption: the full text of the proposed
amendment is first shown to the people before they sign the petition, not after they
have signed the petition.
In short, the Lambino Group's initiative is void and unconstitutional because it
dismally fails to comply with the requirement of Section 2, Article XVII of the
Constitution that the initiative must be "directly proposed by the people through
initiative upon a petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing
Revision through Initiatives
A people's initiative to change the Constitution applies only to an amendment of the
Constitution and not to its revision. In contrast, Congress or a constitutional
convention can propose both amendments and revisions to the Constitution. Article
XVII of the Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members, or
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the
people through initiative x x x. (Emphasis supplied)
Article XVII of the Constitution speaks of three modes of amending the Constitution.
The first mode is through Congress upon three-fourths vote of all its Members. The
second mode is through a constitutional convention. The third mode is through a
people's initiative.
Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny
amendment to, or revision of, this Constitution." In contrast, Section 2 of Article
XVII, referring to the third mode, applies only to "[A]mendments to this
Constitution." This distinction was intentional as shown by the following
deliberations of the Constitutional Commission:
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of the Commission that
pursuant to the mandate given to us last night, we submitted this afternoon a
complete Committee Report No. 7 which embodies the proposed provision
governing the matter of initiative. This is now covered by Section 2 of the complete
committee report. With the permission of the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at least ten
percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7. This
proposal was suggested on the theory that this matter of initiative, which came
about because of the extraordinary developments this year, has to be separated
from the traditional modes of amending the Constitution as embodied in Section 1.
The committee members felt that this system of initiative should be limited to
amendments to the Constitution and should not extend to the revision of the entire
Constitution, so we removed it from the operation of Section 1 of the proposed
Article on Amendment or Revision. x x x x
xxxx
MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a
separate section in the Article on Amendment. Would the sponsor be amenable to
accepting an amendment in terms of realigning Section 2 as another subparagraph
(c) of Section 1, instead of setting it up as another separate section as if it were a
self-executing provision?
MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this
process of initiative is limited to the matter of amendment and should not expand
into a revision which contemplates a total overhaul of the Constitution. That was
the sense that was conveyed by the Committee.
MS. AQUINO: In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision;
whereas, the process of initiation to amend, which is given to the public, would only
apply to amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
xxxx
MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment
on line 1 refers to "amendments." Does it not cover the word "revision" as defined
by Commissioner Padilla when he made the distinction between the words
"amendments" and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and "revision" should be
covered by Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and
wrote, a clear distinction between "amendment" and "revision" of the Constitution.
The framers intended, and wrote, that only Congress or a constitutional convention
may propose revisions to the Constitution. The framers intended, and wrote, that a
people's initiative may propose only amendments to the Constitution. Where the
intent and language of the Constitution clearly withhold from the people the power
to propose revisions to the Constitution, the people cannot propose revisions even
as they are empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United States.
Thus, in McFadden v. Jordan,32 the Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the Constitution x x x
applies only to the proposing and the adopting or rejecting of 'laws and
amendments to the Constitution' and does not purport to extend to a constitutional
revision. x x x x It is thus clear that a revision of the Constitution may be
accomplished only through ratification by the people of a revised constitution
proposed by a convention called for that purpose as outlined hereinabove.
Consequently if the scope of the proposed initiative measure (hereinafter termed
'the measure') now before us is so broad that if such measure became law a
substantial revision of our present state Constitution would be effected, then the
measure may not properly be submitted to the electorate until and unless it is first
agreed upon by a constitutional convention, and the writ sought by petitioner
should issue. x x x x (Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the manner in which it may
be amended or revised, it can be altered by those who favor amendments, revision,
or other change only through the use of one of the specified means. The
constitution itself recognizes that there is a difference between an amendment and
a revision; and it is obvious from an examination of the measure here in question
that it is not an amendment as that term is generally understood and as it is used in
Article IV, Section 1. The document appears to be based in large part on the revision
of the constitution drafted by the 'Commission for Constitutional Revision'
authorized by the 1961 Legislative Assembly, x x x and submitted to the 1963
Legislative Assembly. It failed to receive in the Assembly the two-third's majority
vote of both houses required by Article XVII, Section 2, and hence failed of adoption,
x x x.
While differing from that document in material respects, the measure sponsored by
the plaintiffs is, nevertheless, a thorough overhauling of the present constitution x x
x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as can be
submitted to the people through the initiative. If a revision, it is subject to the
requirements of Article XVII, Section 2(1); if a new constitution, it can only be
proposed at a convention called in the manner provided in Article XVII, Section 1. x x
xx
Similarly, in this jurisdiction there can be no dispute that a people's initiative can
only propose amendments to the Constitution since the Constitution itself limits
initiatives to amendments. There can be no deviation from the constitutionally
prescribed modes of revising the Constitution. A popular clamor, even one backed
by 6.3 million signatures, cannot justify a deviation from the specific modes
prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34
It is a fundamental principle that a constitution can only be revised or amended in
the manner prescribed by the instrument itself, and that any attempt to revise a
constitution in a manner other than the one provided in the instrument is almost
invariably treated as extra-constitutional and revolutionary. x x x x "While it is
universally conceded that the people are sovereign and that they have power to
adopt a constitution and to change their own work at will, they must, in doing so,
act in an orderly manner and according to the settled principles of constitutional
law. And where the people, in adopting a constitution, have prescribed the method
by which the people may alter or amend it, an attempt to change the fundamental
law in violation of the self-imposed restrictions, is unconstitutional." x x x x
(Emphasis supplied)
This Court, whose members are sworn to defend and protect the Constitution,
cannot shirk from its solemn oath and duty to insure compliance with the clear
command of the Constitution ― that a people's initiative may only amend, never
revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an amendment or
revision of the Constitution? If the Lambino Group's initiative constitutes a revision,
then the present petition should be dismissed for being outside the scope of Section
2, Article XVII of the Constitution.
Courts have long recognized the distinction between an amendment and a revision
of a constitution. One of the earliest cases that recognized the distinction described
the fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent and abiding
nature, and the provisions contained therein for its revision indicate the will of the
people that the underlying principles upon which it rests, as well as the substantial
entirety of the instrument, shall be of a like permanent and abiding nature. On the
other hand, the significance of the term "amendment" implies such an addition or
change within the lines of the original instrument as will effect an improvement, or
better carry out the purpose for which it was framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic principle in the constitution,
like altering the principle of separation of powers or the system of checks-and-
balances. There is also revision if the change alters the substantial entirety of the
constitution, as when the change affects substantial provisions of the constitution.
On the other hand, amendment broadly refers to a change that adds, reduces, or
deletes without altering the basic principle involved. Revision generally affects
several provisions of the constitution, while amendment generally affects only the
specific provision being amended.
In California where the initiative clause allows amendments but not revisions to the
constitution just like in our Constitution, courts have developed a two-part test: the
quantitative test and the qualitative test. The quantitative test asks whether the
proposed change is "so extensive in its provisions as to change directly the
'substantial entirety' of the constitution by the deletion or alteration of numerous
existing provisions."36 The court examines only the number of provisions affected
and does not consider the degree of the change.
The qualitative test inquires into the qualitative effects of the proposed change in
the constitution. The main inquiry is whether the change will "accomplish such far
reaching changes in the nature of our basic governmental plan as to amount to a
revision."37 Whether there is an alteration in the structure of government is a
proper subject of inquiry. Thus, "a change in the nature of [the] basic governmental
plan" includes "change in its fundamental framework or the fundamental powers of
its Branches."38 A change in the nature of the basic governmental plan also includes
changes that "jeopardize the traditional form of government and the system of
check and balances."39
Under both the quantitative and qualitative tests, the Lambino Group's initiative is a
revision and not merely an amendment. Quantitatively, the Lambino Group's
proposed changes overhaul two articles - Article VI on the Legislature and Article VII
on the Executive - affecting a total of 105 provisions in the entire Constitution.40
Qualitatively, the proposed changes alter substantially the basic plan of
government, from presidential to parliamentary, and from a bicameral to a
unicameral legislature.
A change in the structure of government is a revision of the Constitution, as when
the three great co-equal branches of government in the present Constitution are
reduced into two. This alters the separation of powers in the Constitution. A shift
from the present Bicameral-Presidential system to a Unicameral-Parliamentary
system is a revision of the Constitution. Merging the legislative and executive
branches is a radical change in the structure of government.
The abolition alone of the Office of the President as the locus of Executive Power
alters the separation of powers and thus constitutes a revision of the Constitution.
Likewise, the abolition alone of one chamber of Congress alters the system of
checks-and-balances within the legislature and constitutes a revision of the
Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to
a Unicameral-Parliamentary system, involving the abolition of the Office of the
President and the abolition of one chamber of Congress, is beyond doubt a revision,
not a mere amendment. On the face alone of the Lambino Group's proposed
changes, it is readily apparent that the changes will radically alter the framework of
government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading
member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and separable
provisions. The guiding original intention of an amendment is to improve specific
parts or to add new provisions deemed necessary to meet new conditions or to
suppress specific portions that may have become obsolete or that are judged to be
dangerous. In revision, however, the guiding original intention and plan
contemplates a re-examination of the entire document, or of provisions of the
document which have over-all implications for the entire document, to determine
how and to what extent they should be altered. Thus, for instance a switch from the
presidential system to a parliamentary system would be a revision because of its
over-all impact on the entire constitutional structure. So would a switch from a
bicameral system to a unicameral system be because of its effect on other
important provisions of the Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida
State constitution to shift from a bicameral to a unicameral legislature. The issue
turned on whether the initiative "was defective and unauthorized where [the]
proposed amendment would x x x affect several other provisions of [the]
Constitution." The Supreme Court of Florida, striking down the initiative as outside
the scope of the initiative clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968 Constitution to
provide for a Unicameral Legislature affects not only many other provisions of the
Constitution but provides for a change in the form of the legislative branch of
government, which has been in existence in the United States Congress and in all of
the states of the nation, except one, since the earliest days. It would be difficult to
visualize a more revolutionary change. The concept of a House and a Senate is basic
in the American form of government. It would not only radically change the whole
pattern of government in this state and tear apart the whole fabric of the
Constitution, but would even affect the physical facilities necessary to carry on
government.
xxxx
We conclude with the observation that if such proposed amendment were adopted
by the people at the General Election and if the Legislature at its next session should
fail to submit further amendments to revise and clarify the numerous
inconsistencies and conflicts which would result, or if after submission of
appropriate amendments the people should refuse to adopt them, simple chaos
would prevail in the government of this State. The same result would obtain from an
amendment, for instance, of Section 1 of Article V, to provide for only a Supreme
Court and Circuit Courts-and there could be other examples too numerous to detail.
These examples point unerringly to the answer.
The purpose of the long and arduous work of the hundreds of men and women and
many sessions of the Legislature in bringing about the Constitution of 1968 was to
eliminate inconsistencies and conflicts and to give the State a workable, accordant,
homogenous and up-to-date document. All of this could disappear very quickly if we
were to hold that it could be amended in the manner proposed in the initiative
petition here.43 (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present
petition. The Lambino Group's initiative not only seeks a shift from a bicameral to a
unicameral legislature, it also seeks to merge the executive and legislative
departments. The initiative in Adams did not even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida
Constitution that would be affected by the shift from a bicameral to a unicameral
legislature. In the Lambino Group's present initiative, no less than 105 provisions of
the Constitution would be affected based on the count of Associate Justice Romeo J.
Callejo, Sr.44 There is no doubt that the Lambino Group's present initiative seeks far
more radical changes in the structure of government than the initiative in Adams.
The Lambino Group theorizes that the difference between "amendment" and
"revision" is only one of procedure, not of substance. The Lambino Group posits that
when a deliberative body drafts and proposes changes to the Constitution,
substantive changes are called "revisions" because members of the deliberative
body work full-time on the changes. However, the same substantive changes, when
proposed through an initiative, are called "amendments" because the changes are
made by ordinary people who do not make an "occupation, profession, or vocation"
out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their
Memorandum:
99. With this distinction in mind, we note that the constitutional provisions
expressly provide for both "amendment" and "revision" when it speaks of legislators
and constitutional delegates, while the same provisions expressly provide only for
"amendment" when it speaks of the people. It would seem that the apparent
distinction is based on the actual experience of the people, that on one hand the
common people in general are not expected to work full-time on the matter of
correcting the constitution because that is not their occupation, profession or
vocation; while on the other hand, the legislators and constitutional convention
delegates are expected to work full-time on the same matter because that is their
occupation, profession or vocation. Thus, the difference between the words
"revision" and "amendment" pertain only to the process or procedure of coming up
with the corrections, for purposes of interpreting the constitutional provisions.
100. Stated otherwise, the difference between "amendment" and "revision" cannot
reasonably be in the substance or extent of the correction. x x x x (Underlining in the
original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention
had drafted the same proposed changes that the Lambino Group wrote in the
present initiative, the changes would constitute a revision of the Constitution. Thus,
the Lambino Group concedes that the proposed changes in the present initiative
constitute a revision if Congress or a constitutional convention had drafted the
changes. However, since the Lambino Group as private individuals drafted the
proposed changes, the changes are merely amendments to the Constitution. The
Lambino Group trivializes the serious matter of changing the fundamental law of the
land.
The express intent of the framers and the plain language of the Constitution
contradict the Lambino Group's theory. Where the intent of the framers and the
language of the Constitution are clear and plainly stated, courts do not deviate from
such categorical intent and language.45 Any theory espousing a construction
contrary to such intent and language deserves scant consideration. More so, if such
theory wreaks havoc by creating inconsistencies in the form of government
established in the Constitution. Such a theory, devoid of any jurisprudential mooring
and inviting inconsistencies in the Constitution, only exposes the flimsiness of the
Lambino Group's position. Any theory advocating that a proposed change involving
a radical structural change in government does not constitute a revision justly
deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in American
jurisdictions have attempted to advance without any success. In Lowe v. Keisling,46
the Supreme Court of Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to the
constitution proposed by initiative. His theory is that Article XVII, section 2 merely
provides a procedure by which the legislature can propose a revision of the
constitution, but it does not affect proposed revisions initiated by the people.
Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to
the constitution that cannot be enacted through the initiative process. They assert
that the distinction between amendment and revision is determined by reviewing
the scope and subject matter of the proposed enactment, and that revisions are not
limited to "a formal overhauling of the constitution." They argue that this ballot
measure proposes far reaching changes outside the lines of the original instrument,
including profound impacts on existing fundamental rights and radical restructuring
of the government's relationship with a defined group of citizens. Plaintiffs assert
that, because the proposed ballot measure "will refashion the most basic principles
of Oregon constitutional law," the trial court correctly held that it violated Article
XVII, section 2, and cannot appear on the ballot without the prior approval of the
legislature.
We first address Mabon's argument that Article XVII, section 2(1), does not prohibit
revisions instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court
concluded that a revision of the constitution may not be accomplished by initiative,
because of the provisions of Article XVII, section 2. After reviewing Article XVII,
section1, relating to proposed amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes the use of the
initiative as a means of amending the Oregon Constitution, but it contains no similar
sanction for its use as a means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only
section of the constitution which provides the means for constitutional revision and
it excludes the idea that an individual, through the initiative, may place such a
measure before the electorate." x x x x
Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply
to constitutional revisions proposed by initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which negates the
express intent of the framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green for
amendments and at the other end red for revisions. Towards the middle of the
spectrum, colors fuse and difficulties arise in determining whether there is an
amendment or revision. The present initiative is indisputably located at the far end
of the red spectrum where revision begins. The present initiative seeks a radical
overhaul of the existing separation of powers among the three co-equal
departments of government, requiring far-reaching amendments in several sections
and articles of the Constitution.
Where the proposed change applies only to a specific provision of the Constitution
without affecting any other section or article, the change may generally be
considered an amendment and not a revision. For example, a change reducing the
voting age from 18 years to 15 years47 is an amendment and not a revision.
Similarly, a change reducing Filipino ownership of mass media companies from 100
percent to 60 percent is an amendment and not a revision.48 Also, a change
requiring a college degree as an additional qualification for election to the
Presidency is an amendment and not a revision.49
The changes in these examples do not entail any modification of sections or articles
of the Constitution other than the specific provision being amended. These changes
do not also affect the structure of government or the system of checks-and-
balances among or within the three branches. These three examples are located at
the far green end of the spectrum, opposite the far red end where the revision
sought by the present petition is located.
However, there can be no fixed rule on whether a change is an amendment or a
revision. A change in a single word of one sentence of the Constitution may be a
revision and not an amendment. For example, the substitution of the word
"republican" with "monarchic" or "theocratic" in Section 1, Article II50 of the
Constitution radically overhauls the entire structure of government and the
fundamental ideological basis of the Constitution. Thus, each specific change will
have to be examined case-by-case, depending on how it affects other provisions, as
well as how it affects the structure of government, the carefully crafted system of
checks-and-balances, and the underlying ideological basis of the existing
Constitution.
Since a revision of a constitution affects basic principles, or several provisions of a
constitution, a deliberative body with recorded proceedings is best suited to
undertake a revision. A revision requires harmonizing not only several provisions,
but also the altered principles with those that remain unaltered. Thus, constitutions
normally authorize deliberative bodies like constituent assemblies or constitutional
conventions to undertake revisions. On the other hand, constitutions allow people's
initiatives, which do not have fixed and identifiable deliberative bodies or recorded
proceedings, to undertake only amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the Transitory
Provisions states:
Section 2. Upon the expiration of the term of the incumbent President and Vice
President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the
1987 Constitution which shall hereby be amended and Sections 18 and 24 which
shall be deleted, all other Sections of Article VI are hereby retained and renumbered
sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the
Parliamentary system of government, in which case, they shall be amended to
conform with a unicameral parliamentary form of government; x x x x (Emphasis
supplied)
The basic rule in statutory construction is that if a later law is irreconcilably
inconsistent with a prior law, the later law prevails. This rule also applies to
construction of constitutions. However, the Lambino Group's draft of Section 2 of
the Transitory Provisions turns on its head this rule of construction by stating that in
case of such irreconcilable inconsistency, the earlier provision "shall be amended to
conform with a unicameral parliamentary form of government." The effect is to
freeze the two irreconcilable provisions until the earlier one "shall be amended,"
which requires a future separate constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner Atty.
Lambino readily conceded during the oral arguments that the requirement of a
future amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the
rule of statutory construction so that the later provision automatically prevails in
case of irreconcilable inconsistency. However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the
Transitory Provisions is not between a provision in Article VI of the 1987
Constitution and a provision in the proposed changes. The inconsistency is between
a provision in Article VI of the 1987 Constitution and the "Parliamentary system of
government," and the inconsistency shall be resolved in favor of a "unicameral
parliamentary form of government."
Now, what "unicameral parliamentary form of government" do the Lambino Group's
proposed changes refer to ― the Bangladeshi, Singaporean, Israeli, or New Zealand
models, which are among the few countries with unicameral parliaments? The
proposed changes could not possibly refer to the traditional and well-known
parliamentary forms of government ― the British, French, Spanish, German, Italian,
Canadian, Australian, or Malaysian models, which have all bicameral parliaments.
Did the people who signed the signature sheets realize that they were adopting the
Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of
government?
This drives home the point that the people's initiative is not meant for revisions of
the Constitution but only for amendments. A shift from the present Bicameral-
Presidential to a Unicameral-Parliamentary system requires harmonizing several
provisions in many articles of the Constitution. Revision of the Constitution through
a people's initiative will only result in gross absurdities in the Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's initiative is a
revision and not an amendment. Thus, the present initiative is void and
unconstitutional because it violates Section 2, Article XVII of the Constitution
limiting the scope of a people's initiative to "[A]mendments to this Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the basic
requirements of Section 2, Article XVII of the Constitution on the conduct and scope
of a people's initiative to amend the Constitution. There is no need to revisit this
Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in
essential terms and conditions" to cover the system of initiative to amend the
Constitution. An affirmation or reversal of Santiago will not change the outcome of
the present petition. Thus, this Court must decline to revisit Santiago which
effectively ruled that RA 6735 does not comply with the requirements of the
Constitution to implement the initiative clause on amendments to the Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute if
the case before the Court can be resolved on some other grounds. Such avoidance
is a logical consequence of the well-settled doctrine that courts will not pass upon
the constitutionality of a statute if the case can be resolved on some other
grounds.51
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional
provision on initiatives to amend the Constitution, this will not change the result
here because the present petition violates Section 2, Article XVII of the Constitution.
To be a valid initiative, the present initiative must first comply with Section 2, Article
XVII of the Constitution even before complying with RA 6735.
Even then, the present initiative violates Section 5(b) of RA 6735 which requires that
the "petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories." Section 5(b)
of RA 6735 requires that the people must sign the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the
amended petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino,
Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and
amended petition as counsels for "Raul L. Lambino and Erico B. Aumentado,
Petitioners." In the COMELEC, the Lambino Group, claiming to act "together with"
the 6.3 million signatories, merely attached the signature sheets to the petition and
amended petition. Thus, the petition and amended petition filed with the COMELEC
did not even comply with the basic requirement of RA 6735 that the Lambino Group
claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735
stating, "No petition embracing more than one (1) subject shall be submitted to the
electorate; x x x." The proposed Section 4(4) of the Transitory Provisions, mandating
the interim Parliament to propose further amendments or revisions to the
Constitution, is a subject matter totally unrelated to the shift in the form of
government. Since the present initiative embraces more than one subject matter,
RA 6735 prohibits submission of the initiative petition to the electorate. Thus, even
if RA 6735 is valid, the Lambino Group's initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the
Lambino Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely
followed this Court's ruling in Santiago and People's Initiative for Reform,
Modernization and Action (PIRMA) v. COMELEC.52 For following this Court's ruling,
no grave abuse of discretion is attributable to the COMELEC. On this ground alone,
the present petition warrants outright dismissal. Thus, this Court should reiterate its
unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could
be attributed to the public respondent COMELEC in dismissing the petition filed by
PIRMA therein, it appearing that it only complied with the dispositions in the
Decisions of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its
Resolution of June 10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost respect
and obedience of all the citizens of this nation. No one can trivialize the Constitution
by cavalierly amending or revising it in blatant violation of the clearly specified
modes of amendment and revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution in
unchartered waters, to be tossed and turned by every dominant political group of
the day. If this Court allows today a cavalier change in the Constitution outside the
constitutionally prescribed modes, tomorrow the new dominant political group that
comes will demand its own set of changes in the same cavalier and unconstitutional
fashion. A revolving-door constitution does not augur well for the rule of law in this
country.
An overwhelming majority − 16,622,111 voters comprising 76.3 percent of the total
votes cast53 − approved our Constitution in a national plebiscite held on 11
February 1987. That approval is the unmistakable voice of the people, the full
expression of the people's sovereign will. That approval included the prescribed
modes for amending or revising the Constitution.
No amount of signatures, not even the 6,327,952 million signatures gathered by the
Lambino Group, can change our Constitution contrary to the specific modes that the
people, in their sovereign capacity, prescribed when they ratified the Constitution.
The alternative is an extra-constitutional change, which means subverting the
people's sovereign will and discarding the Constitution. This is one act the Court
cannot and should never do. As the ultimate guardian of the Constitution, this Court
is sworn to perform its solemn duty to defend and protect the Constitution, which
embodies the real sovereign will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the people decide"
cannot override the specific modes of changing the Constitution as prescribed in the
Constitution itself. Otherwise, the Constitution ― the people's fundamental
covenant that provides enduring stability to our society ― becomes easily
susceptible to manipulative changes by political groups gathering signatures
through false promises. Then, the Constitution ceases to be the bedrock of the
nation's stability.
The Lambino Group claims that their initiative is the "people's voice." However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the
verification of their petition with the COMELEC, that "ULAP maintains its unqualified
support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms." The Lambino Group thus admits that their "people's"
initiative is an "unqualified support to the agenda" of the incumbent President to
change the Constitution. This forewarns the Court to be wary of incantations of
"people's voice" or "sovereign will" in the present initiative.
This Court cannot betray its primordial duty to defend and protect the Constitution.
The Constitution, which embodies the people's sovereign will, is the bible of this
Court. This Court exists to defend and protect the Constitution. To allow this
constitutionally infirm initiative, propelled by deceptively gathered signatures, to
alter basic principles in the Constitution is to allow a desecration of the Constitution.
To allow such alteration and desecration is to lose this Court's raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.
G.R. No. 111511 October 5, 1993
ENRIQUE T. GARCIA, ET AL., petitioners,
vs.
COMMISSION ON ELECTIONS and LUCILA PAYUMO, ET AL., respondents.
Alfonso M. Cruz Law Offices for petitioners.
Romulo C. Felizmeña, Crisostomo Banzon and Horacio Apostol for private
respondents.
NOTE: Naay sperate opinion
PUNO, J.:
The EDSA revolution of 1986 restored the reality that the people's might is not a
myth. The 1987 Constitution then included people power as an article of faith and
Congress was mandated to p ass laws for its effective exercise. The Local
Government Code of 1991 was enacted providing for two (2) modes of initiating the
recall from office of local elective officials who appear to have lost the confidence of
the electorate. One of these modes is recall through the initiative of a preparatory
recall assembly. In the case at bench, petitioners assail this mode of initiatory recall
as unconstitutional. The challenge cannot succeed.
We shall first unfurl the facts.
Petitioner Enrique T. Garcia was elected governor of the province of Bataan in the
May 11, 1992 elections. In the early evening of July 1993, some mayors, vice-mayors
and members of the Sangguniang Bayan of the twelve (12) municipalities of the
province met at the National Power Corporation compound in Bagac, Bataan. At
about 12:30 A.M of the following day, July 2, 1993, they proceeded to the Bagac
town plaza where they constituted themselves into a Preparatory Recall Assembly
to initiate the recall election of petitioner Garcia. The mayor of Mariveles,
Honorable Oscar, de los Reyes, and the mayor of Dinalupihan, the Honorable Lucila
Payumo, were chosen as Presiding Officer and Secretary of the Assembly,
respectively. Thereafter, the Vice-Mayor of Limay, the Honorable Ruben Roque, was
recognized and he moved that a resolution be passed for the recall of the petitioner
on the ground of "loss of confidence."1 The motion was "unanimously seconded."2
The resolution states:
RESOLUTION 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 Garcia for loss of confidence;
Now, therefore, be it resolved, as it is hereby resolved that having lost confidence
on the incumbent 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).
On July 7, 1993, petitioners filed with the respondent COMELEC a petition to deny
due course to said Resolution No. 1. Petitioners alleged that the PRAC failed to
comply with the "substantive and procedural requirement" laid down in Section 70
of R.A. 7160, otherwise known as the Local Government Code of 1991. In a per
curiam Resolution promulgated August 31, 1993, the respondent COMELEC
dismissed the petition and scheduled the recall elections for the position of
Governor of Bataan on October 11 , 1993. Petitioners then filed with Us a petition
for certiorari and prohibition with writ of preliminary injunction to annul the said
Resolution of the respondent COMELEC on various grounds. They urged that section
70 of R.A. 7160 allowing recall through the initiative of the PRAC is unconstitutional
because: (1) the people have the sole and exclusive right to decide whether or not
to initiate proceedings, and (2) it violated the right of elected local public officials
belonging to the political minority to equal protection of law. They also argued that
the proceedings followed by the PRAC in passing Resolution No. I 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. On September 7, 1993,
We required the respondents to file their Comments within a non-extendible period
of ten (10) days.5 On September 16, 1993, We set petition for hearing on
September 21, 1993 at 11 A.M. After the hearing, We granted the petition on
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. We ruled:
xxx xxx xxx
After deliberation, the Court opts not to resolve the alleged constitutional infirmity
of sec. 70 of R.A. No. 7160 for its resolution is not unavoidable to decide the merits
of the petition. The petition can be decided on the equally fundamental issues of:
(1) whether or not all the members of the Preparatory Recall Assembly were
notified of its meeting; and (2) assuming lack of notice, whether or not it would
vitiate the proceedings of the assembly including its Resolution No. 1.
The failure to give notice to all members of the assembly, especially to the members
known to be political allies of petitioner Garcia was admitted by both counsels of
the respondents. They did not deny that only those inclined to agree with the
resolution of recall were notified as a matter of political strategy and security. They
justified these selective notices on the ground that the law does not specifically
mandate the giving of notice.
We reject this submission of the respondents. The due process clause of the
Constitution requiring notice as an element of fairness is inviolable and should
always be considered as part and parcel of every law in case of its silence. The need
for notice to all the members of the assembly is also imperative for these members
represent the different sectors of the electorate of Bataan. To the extent that they
are not notified of the meeting of the assembly, to that extent is the sovereign voice
of the people they represent nullified. The resolution to recall should articulate the
majority will of the members of the assembly but the majority will can be genuinely
determined only after all the members of the assembly have been given a fair
opportunity to express the will of their constituents. Needless to stress, the
requirement of notice is indispensable in determining the collective wisdom of the
members of the Preparatory Recall Assembly. Its non-observance is fatal to the
validity of the resolution to recall petitioner Garcia as Governor of the province of
Bataan.
The petition raises other issues that are not only prima impressionis but also of
transcendental importance to the rightful exercise of the sovereign right of the
people to recall their elected officials. The Court shall discuss these issues in a more
extended decision.
In accord with this Resolution, it appears that on September 22, 1993, the
Honorable Mayor of Dinalupihan, Oscar de los Reyes again sent Notice of Session to
the members of the PRAC to "convene in session on September 26, 1993 at the
town plaza of Balanga, Bataan at 8:30 o'clock in the morning."6 From news reports,
the PRAC convened in session and eighty-seven (87) of its members once more
passed a resolution calling for the recall of petitioner Garcia.7 On September 27,
1993, petitioners filed with Us a Supplemental Petition and Reiteration of Extremely
Urgent Motion for a resolution of their contention that section 70 of R.A. 7160 is
unconstitutional.
We find 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 initiate the recall of local elective officials as bereft of merit.
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,8 For upholding the Constitution is not the responsibility of the judiciary
alone but also the duty of the legislative and executive.9 To strike down a law as
unconstitutional, there must be a clear and unequivocal showing that what the
fundamental law prohibits, the statute permits.10 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. 11
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. 12 Not undeservedly, it
is frequently described as a fundamental right of the people in a representative
democracy. 13
Recall is a mode of removal of elective local officials made its maiden appearance in
our 1973 Constitution.14 It was mandated 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, allocating among the different local government units their powers,
responsibilities, and resources, and providing for the qualifications, election and
removal, term, salaries, powers, functions, and duties of local officials, and all other
matters relating to the organization and operation of the local units. However, any
change in the existing form of local government shall not take effect until ratified by
a majority of the votes cast in a plebiscite called for the purpose. (Emphasis
supplied)
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 elective 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, viz:
Sec. 54. By Whom Exercised; Requisites. — (1) The power of recall shall be
exercised by the registered voters of the unit to which the local elective official
subject to such recall belongs.
(2) Recall shall be validly initiated only upon petition of at least twenty-five
percent (25%) of the total number of registered voters in the local government unit
concerned based on the election in which the local official sought to be recalled was
elected.
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 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 in the 1987 Constitution.
Its Article XIII expressly recognized the Role and Rights of People's Organizations,
viz:
Sec. 15. The State shall respect the role of independent people's organizations to
enable the people to pursue and protect, within the democratic framework, their
legitimate and collective interests and aspirations through peaceful and lawful
means.
People's organizations are bona fide associations of citizens with demonstrated
capacity to promote the public interest and with identifiable leadership,
membership, and structure.
Sec. 16. The right of the people and their organizations to effective and
reasonable participation at all levels of social, political, and economic decision-
making shall not be abridged. The State shall, by laws, facilitate the establishment of
adequate consultation mechanisms.
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. . .," viz :
Sec. 3. The Congress shall enact a local government code which shall provide
for a more responsible and accountable local government structure instituted
through a system of decentralization with effective mechanisms of recall, initiative,
and referendum, allocate among the different local government units their powers,
responsibilities, and resources, and provide for the qualifications, election,
appointment and removal, term, salaries, powers and functions and duties of local
officials, and all other matters relating to the organization and operation of the local
units.
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. 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
cities. We quote the pertinent provisions of R.A. 7160, viz:
CHAPTER 5 — RECALL
Sec. 69. 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.
Sec. 70. Initiation of the Recall Process. (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; in
cases where sangguniang panglungsod 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 which in the local official sought to be recalled was elected.
Sec. 71. Election Recall — Upon the filing of a valid resolution petition for 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 recall in the case of
the barangay, city, or municipal officials, 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. Prohibition from Resignation. — The elective local official sought to be
recalled shall not be allowed to resign while the recall process is in progress.
Sec. 74. 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 regular
election.
A reading of the legislative history of these recall provisions will reveal that the idea
of empowering a preparatory recall assembly to initiate the recall from office of
local elective officials originated from the House of Representatives A reading of the
legislative history of these recall provisions will reveal that 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. 15 The legislative
records reveal 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. 16 Our lawmakers took note of the undesirable fact that the
mechanism initiating recall by direct action of the electorate was utilized only once
in the City of Angeles, Pampanga, but even this lone attempt to recall the city mayor
failed. Former Congressman Wilfredo Cainglet explained that this initiatory process
by direct action of the people was too cumbersome, too expensive and almost
impossible to implement. 17 Consequently, our legislators added in the a second
mode of initiating the recall of local officials thru a preparatory recall assembly. They
brushed aside the argument that this second mode may cause instability in the local
government units due to its imagined ease.
We have belabored the genesis of our recall law for it can light up many of the
unillumined interstices of the law. In resolving constitutional disputes, We should
not be beguiled by foreign jurisprudence some of which are hardly applicable
because they have been dictated by different constitutional settings and needs.
Prescinding from this proposition, We shall now resolve the contention of
petitioners that the alternative mode of allowing a preparatory recall assembly to
initiate the process of recall is unconstitutional.
It is first postulated by the petitioners that "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." 18
We do not agree. Petitioners cannot point to any specific provision of the
Constitution that will sustain this submission. To be sure, there is nothing in the
Constitution that will remotely suggest that the people have the "sole and exclusive
right to decide on whether to initiate a recall proceeding." The Constitution did not
provide for any mode, let alone a single mode, of initiating recall elections. 19
Neither did it prohibit the adoption of multiple modes of initiating recall elections.
The mandate given by section 3 of Article X of the Constitution is for Congress to
"enact a local government code which shall provide for a more responsive and
accountable local government structure through a system of decentralization with
effective mechanisms of recall, initiative, and referendum . . ." By this constitutional
mandate, Congress was clearly given the power to choose the effective mechanisms
of recall as its discernment dictates. The power given was to select which among the
means and methods of initiating recall elections are effective to carry out the
judgment of the electorate. Congress was not straightjacketed to one particular
mechanism of initiating recall elections. What the Constitution simply required is
that the mechanisms of recall, whether one or many, to be chosen by Congress
should be effective. Using its constitutionally granted discretion, 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. 20
Petitioners also positive thesis that in passing Resolution 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. To quote the
exact language of the petitioners: "The initiation of a recall through the PRA
effectively shortens and ends the term of the incumbent local officials. Precisely, in
the case of Gov. Garcia, an election was scheduled by the COMELEC on 11 October
1993 to determine who has the right to assume the unexpired portion of his term of
office which should have been until June 1995. Having been relegated to the status
of a mere candidate for the same position of governor (by operation of law) he has,
therefore, been effectively recalled." 21 In their Extremely Urgent Clarificatory
Manifestation, 22 petitioners put the proposition more bluntly stating that a "PRA
resolution of recall is the re call itself."
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. More far out is petitioners' stance that a PRA
resolution of recall is the recall itself. It cannot be seriously doubted that a 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 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."
We shall next settle the contention of petitioners that the disputed law infracts the
equal protection clause of the Constitution. Petitioners asseverate:
5.01.2. It denied petitioners the equal protection of the laws for 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. Relevantly, the assembly
could, to the prejudice of the minority (or even partyless) incumbent official,
effectively declare a local elective position vacant (and demand the holding of a
special election) for purely partisan political ends regardless of the mandate of the
electorate. In the case at bar, 64 of the 74 signatories to the recall resolution have
been political opponents of petitioner Garcia, not only did they not vote for him but
they even campaigned against him in the 1992 elections.
Petitioners' argument does not really assail the law but its possible abuse by the
members of the PRAC while exercising their right to initiate recall proceedings.
More specifically, the fear is expressed that the members of the PRAC may inject
political color in their decision as they may initiate recall proceedings only against
their political opponents especially those belonging to the minority. A careful
reading of the law, however, will ineluctably show that it 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. Sec. 70 (b) of the Code provides:
Sec. 70. Initiation of the Recall Process. (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 panglungsod 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.
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 multi-party system for
the existence of opposition parties is indispensable to the growth and nurture of
democratic system. Clearly then, the law as crafted cannot be faulted for
discriminating against 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 officials, whether appointed or elected,
will act in good faith and will perform the duties of their office. Such presumption
follows the solemn oath that they took after assumption of office, to faithfully
execute all our laws.
Moreover, the law instituted safeguards to assure that the initiation of the recall
process by a preparatory recall assembly will not be corrupted by extraneous
influences. As explained above, the diverse and distinct composition of the
membership of a preparatory recall assembly guarantees that all the sectors of the
electorate province shall be heard. It is for this reason that in Our Resolution of
September 21, 1993, We held that notice to all the members of the recall assembly
is a condition sine qua non to the validity of its proceedings. The law also requires a
qualified majority of all the preparatory recall assembly members to convene in
session and in a public place. It also requires that the recall resolution by the said
majority must be adopted during its session called for the purpose. The underscored
words carry distinct legal meanings and purvey some of the parameters limiting the
power of the members of a preparatory recall assembly to initiate recall
proceedings. Needless to state, compliance with these requirements is necessary,
otherwise, there will be no valid resolution of recall which can be given due course
by the COMELEC.
Furthermore, it cannot be asserted with certitude that the members of the Bataan
preparatory recall assembly voted strictly along narrow political lines. Neither the
respondent COMELEC nor this Court made a judicial inquiry as to the reasons that
led the members of the said recall assembly to cast a vote of lack of confidence
against petitioner Garcia. That inquiry was not undertaken for to do so would
require crossing the forbidden borders of the political thicket. Former Senator
Aquilino Pimentel, Jr., a major author of the subject law in his book The Local
Government Code of 1991: The Key to National Development, stressed the same
reason why the substantive content of a vote of lack of confidence is beyond any
inquiry, thus:
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, et al., 204 SCRA 464, 472
(1991), 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.
Any assertion therefore that the members of the Bataan preparatory recall
assembly voted due to their political aversion to petitioner Garcia is at best a
surmise.
Petitioners also contend that the resolution of the members of the preparatory
recall assembly subverted the will of the electorate of the province of Bataan who
elected petitioner Garcia with a majority of 12,500 votes. Again, the contention
proceeds from the erroneous premise that the resolution of recall is the recall itself.
It refuses to recognize the reality that the resolution of recall is a mere proposal to
the electorate of Bataan to subject petitioner to a new test of faith. The proposal
will still be passed upon by the sovereign electorate of Bataan. As this judgment has
yet to be expressed, it is premature to conclude that the sovereign will of the
electorate of Bataan has been subverted. The electorate of Bataan may or may not
recall petitioner Garcia in an appropriate election. If the electorate re-elects
petitioner Garcia, then the proposal to recall him made by the preparatory recall
assembly is rejected. On the other hand, if the electorate does not re-elect
petitioner Garcia, then he has lost the confidence of the people which he once
enjoyed. The judgment will write finis to the political controversy. For more than
judgments of courts of law, the judgment of the tribunal of the people is final for
"sovereignty resides in the people and all government authority emanates from
them."
In sum, 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.
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.
G.R. No. 123169 November 4, 1996
DANILO E. PARAS, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
NOTE: Naay separate opinion
RESOLUTION
FRANCISCO, J.:
Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula, Cabanatuan
City who won during the last regular barangay election in 1994. A petition for his
recall as Punong Barangay was filed by the registered voters of the barangay. Acting
on the petition for recall, public respondent Commission on Elections (COMELEC)
resolved to approve the petition, scheduled the petition signing on October 14,
1995, and set the recall election on November 13,
1995.1 At least 29.30% of the registered voters signed the petition, well above the
25% requirement provided by law. The COMELEC, however, deferred the recall
election in view of petitioner's opposition. On December 6, 1995, the COMELEC set
anew the recall election, this time on December 16, 1995. To prevent the holding of
the recall election, petitioner filed before the Regional Trial Court of Cabanatuan
City a petition for injunction, docketed as SP Civil Action No. 2254-AF, with the trial
court issuing a temporary restraining order. After conducting a summary hearing,
the trial court lifted the restraining order, dismissed the petition and required
petitioner and his counsel to explain why they should not be cited for contempt for
misrepresenting that the barangay recall election was without COMELEC approval.2
In a resolution dated January 5, 1996, the COMELEC, for the third time, re-
scheduled the recall election an January 13, 1996; hence, the instant petition for
certiorari with urgent prayer for injunction. On January 12, 1996, the Court issued a
temporary restraining order and required the Office of the Solicitor General, in
behalf of public respondent, to comment on the petition. In view of the Office of the
Solicitor General's manifestation maintaining an opinion adverse to that of the
COMELEC, the latter through its law department filed the required comment.
Petitioner thereafter filed a reply.3
Petitioner's argument is simple and to the point. Citing Section 74 (b) of Republic
Act No. 7160, otherwise known as the Local Government Code, which states that
"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",
petitioner insists that the scheduled January 13, 1996 recall election is now barred
as the Sangguniang Kabataan (SK) election was set by Republic Act No. 7808 on the
first Monday of May 1996, and every three years thereafter. In support thereof,
petitioner cites Associated Labor Union v. Letrondo-Montejo, 237 SCRA 621, where
the Court considered the SK election as a regular local election. Petitioner maintains
that as the SK election is a regular local election, hence no recall election can be had
for barely four months separate the SK election from the recall election. We do not
agree.
The subject provision of the Local Government Code provides:
Sec. 74. 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 local
election.
[Emphasis added]
It is a rule in statutory construction that every part of the statute must be
interpreted with reference to the context, i.e., that every part of the statute must
be considered together with the other parts, and kept subservient to the general
intent of the whole enactment.4 The evident intent of Section 74 is to subject an
elective local official to recall election once during his term of office. Paragraph (b)
construed together with paragraph (a) merely designates the period when such
elective local official may be subject of a recall election, that is, during the second
year of his term of office. Thus, subscribing to petitioner's interpretation of the
phrase regular local election to include the SK election will unduly circumscribe the
novel provision of the Local Government Code on recall, a mode of removal of
public officers by initiation of the people before the end of his term. And if the SK
election which is set by R.A No. 7808 to be held every three years from May 1996
were to be deemed within the purview of the phrase "regular local election", as
erroneously insisted by petitioner, then no recall election can be conducted
rendering inutile the recall provision of the Local Government Code.
In the interpretation of a statute, the Court should start with the assumption that
the legislature intended to enact an effective law, and the legislature is not
presumed to have done a vain thing in the enactment of a statute.5 An
interpretation should, if possible, be avoided under which a statute or provision
being construed is defeated, or as otherwise expressed, nullified, destroyed,
emasculated, repealed, explained away, or rendered insignificant, meaningless,
inoperative or nugatory.6
It is likewise a basic precept in statutory construction that a statute should be
interpreted in harmony with the Constitution.7 Thus, the interpretation of Section
74 of the Local Government Code, specifically paragraph (b) thereof, should not be
in conflict with the Constitutional mandate of Section 3 of Article X of the
Constitution 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 mechanism of recall, initiative, and referendum . . .
."
Moreover, petitioner's too literal interpretation of the law leads to absurdity which
we cannot countenance. Thus, in a case, the Court made the following admonition:
We admonish against a too-literal reading of the law as this is apt to constrict rather
than fulfill its purpose and defeat the intention of its authors. That intention is
usually found not in "the letter that killeth but in the spirit that vivifieth". . .8
The spirit, rather than the letter of a law determines its construction; hence, a
statute, as in this case, must be read according to its spirit and intent.
Finally, recall election is potentially disruptive of the normal working of the local
government unit necessitating additional expenses, hence the prohibition against
the conduct of recall election one year immediately preceding the regular local
election. The proscription is due to the proximity of the next regular election for the
office of the local elective official concerned. The electorate could choose the
official's replacement in the said election who certainly has a longer tenure in office
than a successor elected through a recall election. It would, therefore, be more in
keeping with the intent of the recall provision of the Code to construe regular local
election as one referring to an election where the office held by the local elective
official sought to be recalled will be contested and be filled by the electorate.
Nevertheless, recall at this time is no longer possible because of the limitation
stated under Section 74 (b) of the Code considering that the next regular election
involving the barangay office concerned is barely seven (7) months away, the same
having been scheduled on May 1997. 9
ACCORDINGLY, the petition is hereby dismissed for having become moot and
academic. The temporary restraining order issued by the Court on January 12, 1996,
enjoining the recall election should be as it is hereby made permanent.
SO ORDERED.
G.R. No. 126576 March 5, 1997
MAYOR RICARDO M. ANGOBUNG, petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, and ATTY. AURORA S. DE ALBAN,
respondents.
HERMOSISIMA, JR., J.:
Before us on certiorari is a petition seeking to annul and set aside Resolution No. 96-
29511 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 Tumauini, Isabela, scheduled the recall election
on December 2, 1996.
On October 25, 1996, this court issued a Temporary Restraining Order2 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 of Tumauini, Isabela, a Petition for Recall3 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 Memorandum4 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 any
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 Restraining 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. COMELEC5, 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
Sanchez, et al. v. COMELEC6 and Evardone v. COMELEC7.
Private respondent is correct in saying that in the light of our pronouncement in
Paras v. COMELEC8, 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 . . . 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 petitioner's 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 . . . 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.
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.
Sec. 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 . . .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:
While 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 COMELEC's 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 . . . 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 xxx 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. . . . 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 direct 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 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
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 . . .
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 . . . .
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 Article XIII expressly recognized the Role and Rights of
People's Organizations . . . .
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 . . . . 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 . . . municipal . . . 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 representative of the official sought to be
recalled, and in a public place in the . . . municipality . . . " 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
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 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:
WHEREFORE, premises considered, the PETITION FOR CERTIORARI is hereby
GRANTED. COMELEC Resolution No. 96-2951 is hereby DECLARED NULL and VOID
and accordingly SET ASIDE.
The RESTRAINING ORDER heretofore issued is hereby made permanent.
Costs against private respondent.
SO ORDERED.

[t]he only logical reason 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 G.R. No. 127066 March 11, 1997
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
REYNALDO O. MALONZO, petitioner,
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 vs.
small percentage of disenchanted electors. 20 THE HONORABLE COMMISSION ON ELECTIONS
and THE LIGA NG MGA BARANGAY (Caloocan
Along the same lines, the Supreme Court of Colorado held in the case of Bernzen, v.
City of Boulder 21 that: Chapter) and ALEX L. DAVID, CONRADO G. CRUZ,
TRINIDAD REPUNO, GLORIA M. CRUZ, MIRALI M.
[t]he framers, by requiring that a recall petition contain the signatures of at least DURR, FERMIN JIMENEZ, AURELIO BILUAN,
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 ROGELIO SARAZA, HELENE VALBUENA, and
in response to the wishes of a small and unrepresentative minority. However, once HIGINO RULLEPA, respondents.
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:
TORRES, JR., J.:
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 The Court is called upon to strike down Resolution 96-
electorate . . . . A much cited Nebraska case pertaining to a Nebraska recall statute
provides some answers which are equally applicable to the Michigan constitutional 026, dated November 18, 1996, of the respondent
1

right of recall: Commission on Elections (COMELEC) calling for an

Election for the Recall of the Petitioner Reynaldo O.
. . . 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.
Malonzo, the incumbent Mayor of Caloocan City.
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 Petitioner was duly elected as Mayor in the elections
approved themselves to their understanding and they were seriously dissatisfied
with the services of the incumbent of the office. 24 held on May 8, 1995, winning over former Mayor
Macario Asistio, Jr. Barely one year into his term,
In the instant case, this court is confronted with a procedure that is unabashedly petitioner's office as Mayor was put to serious question
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
when on July 7, 1996, 1,057 Punong Barangays and
Government Code plainly provides that recall is validly initiated by a petition of 25% Sangguniang Barangay members and Sangguniang
of the total number of registered voters. Notwithstanding such awareness, private Kabataan chairmen, constituting a majority of the
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
members of the Preparatory Recall Assembly of the
Tumauini, Isabela, lost confidence in the leadership of petitioner. But the petition City of Caloocan, met, and upon deliberation and
does not bear the names of all these other citizens of Tumauini who have reportedly election, voted for the approval of Preparatory Recall
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
Assembly Resolution No. 01-96, expressing loss of
affixed her name in the petition shows that she claims responsibility for the seeming confidence in Mayor Malonzo, and calling for the
affront to petitioner's continuance in office. But the same cannot be said of all the initiation of recall proceedings against him.
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 Together with relevant documents, PRA Resolution No.
consequences of the exercise of such power, including rising above anonymity, 01-96 was filed with the COMELEC for appropriate
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
action. In response, Mayor Malonzo filed a Petition with
allowing just one person to file the initiatory recall petition and then setting a date the respondent Commission alleging, principally, that
for the signing of the petition, which amounts to inviting and courting the public the recall process was deficient in form and substance,
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
and therefore, illegally initiated. The COMELEC found
law but also tainted with an attempt to go around the law. We can not and must the petition devoid of merit and declared the recall
not, under any and all circumstances, countenance a circumvention of the explicit proceedings to be in order. The COMELEC's
25% minimum voter requirement in the initiation of the recall process.
Resolution on the petition states pertinently:
WHEREFORE, in view of the foregoing, the
Commission En Banc hereby RESOLVES to DISMISS
the Petition. We approve and give DUE COURSE to
PRA Resolution No. 01-96 entitled RESOLUTION TO
INITIATE RECALL OF REYNALDO O. MALONZO AS
MAYOR OF KALOOCAN CITY FOR LOSS OF
CONFIDENCE. Accordingly and conformably with
Section 71 R.A. 7160, the Commission SETS the date
of the Election on Recall on December 14, 1996. We
shall, by separate resolution, issue a calendar of
activities involved in said exercise.
SO ORDERED. 2
On November 28, 1996, Mayor Malonzo came to us on
a "Petition for Certiorari With Prayer For Temporary
Restraining Order and Application for Writ of
Preliminary Injunction", assailing the COMELEC's
resolution as having been issued with grave abuse of
discretion. The Petition, in the main, raises the issue of
the validity of the institution and proceedings of the
recall, putting to fore the propriety of the service of
notices to the members of the Preparatory Recall
Assembly, and the proceedings held, resulting in the
issuance of the questioned Resolution.
Due to the importance of the matters in issue, and the
proximity of the Recall Election date declared by the
COMELEC, the Court, on November 29, 1996, issued
a Resolution ordering the respondent COMELEC to
3
cease and desist from proceeding with the recall
election projected on December 14, 1996, and directing
the respondents to file their respective Comments.
Private respondents Liga ng mga Barangay (Caloocan
Chapter), Alex L. David, Conrado G. Cruz, Trinidad
Repuno, Gloria M. Cruz, Mirali M. Durr, Fermin Jimenez,
Aurelio Biluan, Rogelio Saraza, Helene Valbuena and
Higino Rullepa, filed their Comment on December 6,
4
1996, alleging that all the requirements for the holding
of a recall election were duly complied with and that the
petition is therefore without basis. On the other hand,
the Office of the Solicitor General filed a Manifestation
in lieu of Comment on February 7, 1997, with the
5
surprising submission that the COMELEC was amiss in
its duties as enforcer of election laws.
According to the Solicitor General, the veracity of
notices sent to 42 members of the Preparatory Recall
Assembly were not directly passed upon by the
COMELEC before it issued the questioned Resolution.
It thus submits that the propriety of notices sent to said
PRA members must first be determined by the
COMELEC, after giving private respondents the chance
to prove the same, otherwise, a discussion of the other
issues in the present petition would be premature.
At this juncture, the Court finds that there is no need to
refer the matter of the veracity of the questioned notices
sent to certain members of the Preparatory Recall
Assembly back to the COMELEC, for the reason that
the COMELEC has already conducted an investigation
into the same, and has found the proceedings instituting
the recall to be in accord with law.
The Solicitor General's observation that the issue of
veracity of the notices was not directly passed upon by
the COMELEC is incorrect. On the contrary, the matter
of validity of notices to the members of the Preparatory
Recall Assembly was sufficiently considered by the
respondent Commission, as in response to petitioner's
request for a technical examination of the recall
documents, the COMELEC directed its Election
Records and Statistics Department (ERSD) to resolve
the matter of notices sent to the Preparatory Recall
Assembly members. The ERSD in turn performed its
task and reported its findings to the COMELEC. The
following excerpts from Resolution UND 96-026 of the
COMELEC reflect the results of the ERSD's
investigation, and the resulting action of the COMELEC:
The ERSD Report gave the following information:
Three (3) lists of elected Barangay officials were used
as reference, namely: COMELEC list; DILG list and
Caloocan City list.
According to the COMELEC listing, of the 188
barangays in Kalookan City, there should have been
1,692 members of the PRA. However, one barangay,
Barangay 94, did not elect an SK Chairman, thus, there
are of record, 1,691 elected barangay officials of
Kalookan City, broken down as follows:
Punong Barangay — 188
Barangay Kagawads — 1,316
SK Chairmen — 187
(One Barangay, Barangay
94 did not elect its
SK Chairman).
The DILG registry is incomplete, showing only a listing
of 1,390 barangay officials. The Kalookan City Talaan
ng mga Barangay tallies with the COMELEC List. From
the records, the following data is found: Of the 1,691
barangay officials, forty (40) had resigned. In the stead
of twenty-eight (28) resignees, replacements were
appointed. Twelve (12) positions however, remained
vacant, there being no successors named therein.
Twenty-two (22) barangay officials are deceased.
Twelve (12) vacancies caused by such death were filled
up by appointing replacements. Ten (10) vacant
positions were however not filled up. There being
twenty-two (22) unfilled posts, the total number of
Barangay officials of Kalookan City at the time of the
constitution of the Preparatory Recall Assembly was
initiated is 1,669.
ERSD reported that there were a total of 1,927 notices
sent, some members being served two or three notices.
The Notices were sent in three modes; Personal,
registered mail and by courier and they were in the
name of the PRA member, and addressed at his
residence or office of record.
In its initial report, the Department stated that six
persons listed in the COMELEC record as barangay
officials were not duly notified. These were: Jose de
Chavez, listed as Barangay kagawad of Barangay; 6;
Enrico Marasigan, listed as Barangay kagawad of
Barangay 65; Pablo Musngi, listed as Barangay
kagawad of Barangay 119; Rolando Ang, listed as
Barangay kagawad of Barangay 109; and Pilar Pilares,
Barangay Kagawad of Barangay 162 and Teresita
Calayo, listed as kagawad of Barangay 182.
Respondents explained the absence of notice to these
persons thus:
1. Jose de Chavez has been removed from office as
Barangay kagawad of Barangay 6 by virtue of
Resolution No. 95-011 passed on July 16, 1995, and
has been replaced by Corazon Obusan by virtue of
Resolution No. 95-016 passed on August 1995, both
promulgated by the Barangay Council of said barangay.
In view of the fact that it is Corazon Obusan who is the
recognized Barangay kagawad of the aforementioned
barangay, as it appears in the official roster of the
Department of Interior and Local Government (DILG)
the notice of the July 7, 1996 PRA session was duly
served on her and not on Mr. de Chavez.
2. Enrico Marasigan has resigned as Barangay
kagawad of Barangay 65 as evidenced by his
resignation letter dated March 24, 1995. He was
replaced by Ronio de la Cruz, by virtue of a Resolution
passed by the Barangay Council of Barangay 65 dated
August 10, 1995. Accordingly, the notice of the July 7,
1996 PRA session was duly served on Mr. de la Cruz
and not on Mr. Marasigan.
3. Pablo Musngi ceased to be a Barangay kagawad of
Barangay 119 by reason of his death on April 12, 1996.
He has been replaced by Sylvia Saberola on whom
notice of the July 7, 1996 PRA session has been duly
served.
4. Notices, both by personal delivery and by registered
mail, were served on Mr. Rolando Ang at his official
address at Barangay 109 Zone 10 East Grace Park,
Caloocan City. The returns of the said service of notice,
however, disclosed that he can no longer be located in
the said address. He has, however, not informed the
DILG of any change in his official address.
5. Pilar Pilares had been served notice by personal
delivery but refused to sign acknowledgment receipt.
She has likewise been served notice by registered mail
as evidenced by the receipt in her behalf by a certain
Ricardo Pilares III. (Respondents' Comment, dated
October 14, 1996.
As to Teresita Calayo, respondent defends lack of
notice to her, thus:
Teresita Calayo is not a duly elected kagawad of
Barangay 182, Zone 16.
Per certification issued by the Board of Election Tellers,
Ms. Calayo did not win in the May 1994 Barangay
Election. Records would show that it should be
Kagawad Fermin Quintos who should be recognized as
legitimate barangay kagawad of the said barangay
having placed no. 7 in the election and not Ms. Calayo
who appears to be a loser/9th place. There appears to
be an apparent oversight in placing the name of Calayo
in the subject PRA Resolution for signature, wherein it
shows that both the names of Fermin Quintos and
Teresita Calayo are included. (Respondents'
Compliance dated November 13, 1996, p. 6).
In the ERSD's final and complete report, two (2)
additional names were reflected as not having been
served notices and these were Line Ramos and
Teodulfo Abenoja, listed as kagawads of Barangay 174.
Commenting on this report, respondents stated:
1. As regards Tomas Daep and Teodulfo Abenoja (not
Agenoja);.
Notice by registered mail was served on, and
acknowledged by Tomas Daep, who personally signed
the return card.
There was actually an error committed by the ERSD
when it concluded that Tomas Daep has already
resigned and was replaced by Ernesto Taupa. Official
records would show that Tomas Daep and Ernesto
Taupa are still both presently holding the position of
Kagawad of Barangay 174 Zone 15.
Ernesto Taupa was officially appointed to the position
vacated by Teodulfo Abenoja by virtue of the latter's
resignation on 15 March 1996. Teodulfo Abenoja, on
the other hand, was appointed to the position vacated
by a Line Ramos and Teodulfo Abenoja — they, having
resigned and, the latter, having been already replaced
by Ernesto Taupa.
Ernesto Taupa on the other, as correctly determined by
the ERSD, was validly served with the notice of the PRA
session two (2) days before the scheduled PRA
meeting.
Respondents' submission, being substantiated by
documents. and uncontroverted by Petitioner are
hereby accepted as meritorious.
In addition to the aforenamed, three persons, Pablo de
Castro, Ruben Ballega, and Jesus Tan claiming to be
the Barangay captains of Barangay 116, Barangay 148
and Barangay 156, respectively, and therefore
members of the Preparatory Recall Assembly, came
before the Commission and manifested that they were
not duly notified about the PRA session.
The records in custody of the Commission, however,
revealed that there was no truth to their allegations.
Pablo de Castro was served notice by registered mail
on July 1, 1996, and this he received on July 3, 1996,
as shown in the return card duly signed in
acknowledgment. The same notice was served on him
by courier (LBC) on July 5, 1996.
Ruben Ballega was notified by personal service on July
1, 1996, the receipt of which was duly acknowledged
and by registered mail on July 2, 1996.
Jesus Tan Sr. was served notice personally and by
registered mail. The personal service was completed
on July 1, 1996, as shown by the receipt signed by his
daughter, one Analiza T. Asque. The same notice was
sent him by registered mail, received by the same
daughter on July 2, 1996.
The Commission however regards the sending of
notice one thing, and the completion of service thereof
another, for indeed, the requirement of notice can only
be fully satisfied, if there was not only service, but also
completion of service thereof. Thus, we were obliged to
inquire more closely into the records and we found:
Personal services were acknowledged by receipts
signed, if not by the addressee himself, then, as
indicated thereon, by his or her spouse, nearest relative
or a person of sufficient discretion in the member 's
residence or office. Service by registered mail was
evinced by the return card duly signed by the addressee
or by persons acting for him. There were instances
when notices were served but were refused, this fact
noted in the acknowledgment receipt by the server and
his witnesses. The circumstances being thus, we hold
that there was complete service of the notices as
contemplated in Section 8, Rule 13 of the Rules of
Court which provides;
Sec. 8 Completeness of Service — Personal service is
complete upon delivery. Service by ordinary mail is
complete upon the expiration of five (5) days after
mailing, unless the court otherwise provides; Service by
registered mail is complete upon actual receipt by the
addressee; but if he fails to claim his mail from the post
office within five (5) days from the date of first notice of
the postmaster, service shall take effect at the
expiration of such time.
That it was Alex David, President of the LIGA ng mga
Barangay who sent the notices is of no moment. We
had earlier determined that as member of the PRA, he
can legally exercise the prerogatives attached to his
membership in the Preparatory Recall Assembly,
sending notices to the other members of its scheduled
convening.
It is evident from the foregoing and, therefore, the
Commission so holds that the requirements of notice
had been fully complied with. 6
Needless to state, the issue of propriety of the notices
sent to the PRA members is factual in nature, and the
determination of the same is therefore a function of the
COMELEC. In the absence of patent error, or serious
inconsistencies in the findings, the Court should not
disturb the same. The factual findings of the COMELEC,
based on its own assessments and duly supported by
gathered evidence, are conclusive upon the court, more
so, in the absence of a substantiated attack on the
validity of the same.
Moreover, to order the COMELEC to repeat the process
of determining the notices' propriety would be
sanctioning a recycling of administrative functions,
entailing added cost and waste of effort.
Petitioner likewise attacks the COMELEC's ruling on
the validity of the proceedings held by the Preparatory
Recall Assembly, in that it allegedly ruled that the LIGA
ng mga Barangay is authorized to initiate the recall and
convene the Preparatory Recall Assembly. Petitioner
likewise averred that the session held, and the adoption
of the recall resolution, by the recall assembly were
tainted with irregularities, violence, graft and corruption.
The pertinent provisions of law, as regards the initiation
of the recall process, are Sections 69 and 70 of R.A.
7160:
Sec. 69. 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.
Sec. 70. Initiation of the Recall Process. —
(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:
xxx xxx xxx
(2) City level. — All punong barangay and sangguniang
barangay members in the city;
xxx xxx xxx
(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 also be validly initiated upon
petition of at least 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.
(1) A written petition for recall duly signed before the
election registrar or his representative, and in the
presence of a representative of the petitioner and a
representative of the official sought to be recalled, and
in a public place in the province, city, municipality, or
barangay, as the case may be, shall be filed with the
COMELEC through its office in the local government
unit concerned. The COMELEC or its duly authorized
representative shall cause the publication of the petition
in a public and conspicuous place for a period of not
less than ten (10) days nor more than twenty (20) days,
for the purpose of verifying the authenticity and
genuineness of the petition and the required
percentage of voters.
(2) 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.
Petitioner's insistence, that the initiation of the recall
proceedings was infirm since it was convened by the
Liga ng mga Barangays, is misplaced. Petitioner
observes that "respondent Liga is an organization of all
barangays. It is not an organization of barangay
captains and kagawads. The barangays are
represented in the Liga by the barangay captains as
provided under Section 492 of the Local Government
Code. It also provides that the Kagawad may represent
the barangay in the absence of the barangay
chairman." The Liga ng mga Barangay is undoubtedly
7
an entity distinct from the Preparatory Recall Assembly.
It just so happens that the personalities representing
the barangays in the Liga are the very members of the
Preparatory Recall Assembly, the majority of whom met
on July 7, 1996, and voted in favor of the resolution
calling for the recall of Mayor Malonzo, after
deliberation reported in the record, in accordance with
the existing law. Thus, the Punong Barangays and
Sangguniang Barangay members convened and voted
as members of the Preparatory Recall Assembly of the
City of Caloocan, and not as members of the Liga ng
mga Barangay. The recall proceedings, therefore,
cannot be denied merit on this ground.
Any doubt as to the propriety of the proceedings held
during the recall assembly should be laid to rest. As the
respondent COMELEC pertinently observes:
The Minutes of the session of the Preparatory
Assembly indicated that there was a session held.
Attendees constitute the majority of all the members of
the Preparatory Assembly, as we shall later on
establish. Rules of procedure, simple they may be were
formulated. Deliberations were conducted on the main
issue, which was that of petitioner's recall. The
members were given the opportunity to articulate on
their resolve about the matter. More importantly, their
sentiments were expressed through their votes
signified by their signatures and thumbmarks affixed to
the Resolution. No proof was adduced by Petitioner to
substantiate his claim that the signatures appearing
thereon represented a cause other than that of adopting
the resolution. The law on recall did not prescribe an
elaborate proceeding. Neither did it demand a specific
procedure. What is fundamental is compliance with the
provision that there should be a session called for the
purpose of initiating recall proceedings, attended by a
majority of all the members of the preparatory recall
assembly, in a public place and that the resolution
resulting from such assembly be adopted by a majority
of all the PRA members. 8
hereby ORDERED to set the date of the Election on
Recall in the city of Caloocan, which date shall not be
later than thirty days after receipt of notice of this
Resolution, which is immediately executory.
SO ORDERED.
Narvasa, C,J., Padilla, Regalado, Davide, Jr., Romero,
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Hermosisima, Jr. and Panganiban.
Francisco, J., concurs in the results.
Footnotes
G.R. No. 140560 May 4, 2000

The charges of graft and corruption, violence and

irregularities, before and during the session of the
preparatory recall assembly are largely uncorroborated,
and cannot override the substantiated findings of the
respondent COMELEC.
JOVITO O. CLAUDIO, petitioner,
vs.
COMMISSION ON ELECTIONS, DEPARTMENT OF
BUDGET AND MANAGEMENT, COMMISSION ON
AUDIT and RICHARD ADVINCULA, respondents.

In cases filed before administrative and quasi-

judicial bodies, a fact may be deemed established if it
G.R. No. 140714 May 4, 2000
is supported by substantial evidence, or that amount of
relevant evidence which a reasonable mind might
PREPARATORY RECALL ASSEMBLY OF PASAY
accept as adequate to justify a conclusion. 9

CITY, herein represented by its Chairman,

RICHARD ADVINCULA, petitioner,
Substantial evidence means such relevant evidence as
vs.
a reasonable mind might accept as adequate to support THE COMMISSION ON ELECTIONS, DEPARTMENT
a conclusion. It means such evidence which affords a
10

OF BUDGET AND MANAGEMENT, COMMISSION

substantial basis from which the fact in issue can be ON AUDIT and HON. JOVITO O.
reasonably inferred. To overturn the presumption of
11

CLAUDIO, respondents.
validity of performance of official duty, more than a
mere scintilla of proof is needed, otherwise, one
MENDOZA, J.:
disgruntled fellow can destroy the foundations laid by
the overwhelming majority, and this is not the scenario
These are petitions arising from the proceedings
envisioned by our democratic system of government.
initiated by the Preparatory Recall Assembly of Pasay
City (PRA) in the Commission on Elections in E.M. No.
In sum, we are persuaded strongly by the principle that
99-005 entitled IN THE MATTER OF THE
the findings of fact of administrative bodies charged
PREPARATORY RECALL ASSEMBLY RESOLUTION
with their specific field of expertise, are afforded great
NO. 01, S-1999 ADOPTED ON 29 MAY 1999 FOR THE
weight by the courts, and in the absence of substantial
RECALL OF MAYOR JOVITO CLAUDIO OF PASAY
showing that such findings are made from an erroneous
CITY. G.R. No. 140560 is a petition for certiorari and
estimation of the evidence presented, they are
prohibition, seeking the nullification of the resolution, 1

conclusive, and in the interest of stability of the

governmental structure, should not be disturbed.
ACCORDINGLY, the Court hereby RESOLVED to
DISMISS the present petition, for lack of merit. The
decision of the respondent Commission on Elections to
GIVE DUE COURSE to PRA Resolution No. 01-96 is
hereby AFFIRMED. The Commission on Elections is
dated October 18, 1999, of the COMELEC giving due
course to the petition for the recall of petitioner Jovito O.
Claudio as mayor of Pasay City. On the other hand, G.R.
No. 140714 is a petition for mandamus filed by the PRA,
represented by its Chair, Richard Advincula, to compel
the COMELEC to set the date for the holding of recall
elections in Pasay City pursuant to the aforecited
resolution of the COMELEC.
The facts are as follows:
Jovito O. Claudio, petitioner in G.R. No. 140560, was
the duly elected mayor of Pasay City in the May 11,
1998 elections. He assumed office on July 1, 1998.
Sometime during the second week of May 1999, the
chairs of several barangays in Pasay City gathered to
discuss the possibility of filing a petition for recall
against Mayor Claudio for loss of confidence. On May
19, 1999, at the residence of barangay chair Benjamin
Lim, Jr. in Barangay 11, Zone 4, Pasay City, several
barangay chairs formed an ad hoc committee for the
purpose of convening the PRA. Richard Advincula,
private respondent in G.R. No. 140560 and petitioner in
G.R. No. 140714, was designated chair.
On May 29, 1999, 1,073 members of the PRA
composed of barangay chairs, kagawads, and
sangguniang kabataan chairs of Pasay City, adopted
Resolution No. 01, S-1999, entitled RESOLUTION TO
INITIATE THE RECALL OF JOVITO O. CLAUDIO AS
MAYOR OF PASAY CITY FOR LOSS OF
CONFIDENCE. In a letter dated June 29, 1999,
Advincula, as chair of the PRA, invited the Mayor, Vice-
Mayor, Station Commander, and thirteen (13)
Councilors of Pasay City to witness the formal
submission to the Office of the Election Officer on July
2, 1999 of the petition for recall.
As scheduled, the petition for recall was filed on July 2,
1999, accompanied by an affidavit of service of the
petition on the Office of the City Mayor. Pursuant to the
rules of the COMELEC, copies of the petition were
posted on the bulletin boards of the local COMELEC
office, the City Hall, the Police Department, the public
market at Libertad St. and Taft Avenue, and at the
entrance of the Sta. Clara Church on P. Burgos St., all
in Pasay City. Subsequently, a verification of the
authenticity of the signatures on the resolution was
conducted by Ligaya Salayon, the election officer for
Pasay City designated by the COMELEC.
Oppositions to the petition were filed by petitioner Jovito
O. Claudio, Rev. Ronald Langub, and Roberto L.
Angeles, alleging procedural and substantive defects in
the petition, to wit: (1) the signatures affixed to the
resolution were actually meant to show attendance at
the PRA meeting; (2) most of the signatories were only
representatives of the parties concerned who were sent
there merely to observe the proceedings; (3) the
convening of the PRA took place within the one-year
prohibited period; (4) the election case, filed by
2 resolution.
Wenceslao Trinidad in this Court, seeking the
annulment of the proclamation of petitioner Claudio as
mayor of Pasay City, should first be decided before
recall proceedings against petitioner could be filed; and
(5) the recall resolution failed to obtain the majority of
all the members of the PRA, considering that 10 were
actually double entries, 14 were not duly accredited
members of the barangays, 40 sangguniang kabataan
officials had withdrawn their support, and 60 barangay
chairs executed affidavits of retraction.
In its resolution of October 18, 1999, the COMELEC
granted the petition for recall and dismissed the
oppositions against it. On the issue of whether the PRA
was constituted by a majority of its members, the
COMELEC held that the 1,073 members who attended
the May 29, 1999 meeting were more than necessary
to constitute the PRA, considering that its records
showed the total membership of the PRA was 1,790,
while the statistics of the Department of Interior and
Local Government (DILG) showed that the total
membership of the PRA was 1,876. In either case,
since only a majority is required to constitute the PRA,
clearly, a majority had been obtained in support of the
recall resolution. Based on the verification made by
election officer Ligaya Salayon, the COMELEC found
the signatures of 958 members of the PRA sufficient.
On whether the pendency of the case questioning the
proclamation of petitioner was a prejudicial question
which must first be decided before any recall election
could be held, the COMELEC ruled that it was not and
that petitioner was merely using the pendency of the
case to delay the recall proceedings. Finally, on
whether the petition for recall violated the bar on recall
within one year from the elective official's assumption of
office, the COMELEC ruled in the negative, holding that
recall is a process which starts with the filing of the
petition for recall. Since the petition was filed on July 2,
1999, exactly one year and a day after petitioner
Claudio's assumption of office, it was held that the
petition was filed on time.
Hence, these petitions. Oral arguments were held in
these cases in Baguio City on April 4, 2000, after which
the Court, by the vote of 8 to 6 of its members, 3
resolved to dismiss the petition in G.R. No. 140560 for
lack of showing that the COMELEC committed a grave
abuse of discretion. On the other hand, the Court
unanimously dismissed the petition in G.R. No. 140714
on the ground that the issue raised therein had become
moot and academic.
We now proceed to explain the grounds for our
In its Resolution No. 3121, dated March 9, 2000, the
COMELEC set the date of the recall elections in Pasay
City on April 15, 2000. Consequently, the petition
for mandamus in G.R. No. 140714 to compel the
COMELEC to fix a date for the recall elections in Pasay
City is no longer tenable. We are thus left with only
petitioner Claudio's action for certiorari and prohibition.
The bone of contention in this case is §74 of the Local
Government Code (LCG) which provides:
4
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 local election.
As defined at the hearing of these cases on April 4,
2000, the issues are:
WHETHER, under Section 74 of the Local Government
Code of 1991 (R.A. No. 7160) . . . .
A. The word "recall" in paragraph (b) covers a process
which includes the convening of the Preparatory Recall
Assembly and its approval of the recall resolution.
B. The term "regular local election" in the last clause of
paragraph (b) includes the election period for that
regular election or simply the date of such election.
(1)
On Whether the Word "Recall" in Paragraph (b) of §74
of the Local Government Code Includes the Convening
of the Preparatory Recall Assembly and the Filing by it
of a Recall Resolution.
Petitioner contends that the term "recall" in §74(b)
refers to a process, in contrast to the term "recall
election" found in §74(a), which obviously refers to an
election. He claims that "when several barangay
chairmen met and convened on May 19, 1999 and
unanimously resolved to initiate the recall, followed by
the taking of votes by the PRA on May 29, 1999 for the
purpose of adopting a resolution "to initiate the recall of
Jovito Claudio as Mayor of Pasay City for loss of
confidence," the process of recall began" and, since
May 29, 1999 was less than a year after he had
assumed office, the PRA was illegally convened and all
proceedings held thereafter, including the filing of the
recall petition on July 2, 1999, were null and void.
The COMELEC, on the other hand, maintains that the
process of recall starts with the filing of the petition for
recall and ends with the conduct of the recall election,
and that, since the petition for recall in this case was
filed on July 2, 1999, exactly one year and a day after
petitioner's assumption of office, the recall was validly
initiated outside the one-year prohibited period.
Both petitioner Claudio and the COMELEC thus agree
that the term "recall" as used in §74 refers to a process.
They disagree only as to when the process starts for
purposes of the one-year limitation in paragraph (b) of
§74.
We can agree that recall is a process which begins with
the convening of the preparatory recall assembly or the
gathering of the signatures at least 25% of the
registered voters of a local government unit, and then
proceeds to the filing of a recall resolution or petition
with the COMELEC, the verification of such resolution
or petition, the fixing of the date of the recall election,
and the holding of the election on the scheduled date. 5
However, as used in paragraph (b) of §74, "recall"
refers to the election itself by means of which voters
decide whether they should retain their local official or
elect his replacement. Several reasons can be cited in
support of this conclusion.
First, §74 deals with restrictions on the power of recall.
It is in fact entitled "Limitations on Recall." On the other
hand, §69 provides that "the power of recall . . . shall be
exercised by the registered voters of a local
government unit to which the local elective official
belongs." Since the power vested on the electorate is
not the power to initiate recall proceedings but the
6
power to elect an official into office, the limitations in
§74 cannot be deemed to apply to the entire recall
proceedings. In other words, the term "recall" in
paragraph (b) refers only to the recall election,
excluding the convening of the PRA and 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.
Thus, there may be several PRAs held (as in the case
of Bataan Province in 1993) or petitions for recall filed
with the COMELEC — there is no legal limit on the
number of times such processes may be resorted to.
These are merely preliminary steps for the purpose of
initiating a recall. The limitations in §74 apply only to the
exercise of the power of recall which is vested in the
registered voters. It is this — and not merely the
preliminary steps required to be taken to initiate a recall
— which paragraph (b) of §74 seeks to limit by
providing that no recall shall take place within one year
from the date of assumption of office of an elective local
official.
Indeed, this is the thrust of the ruling in Garcia
v. COMELEC where two objections were raised
7 proceedings to initiate a recall can be held even before
against the legality of PRAs: (1) that even the power to
initiate recall proceedings is the sole prerogative of the
electorate which cannot be delegated to PRAs, and (2)
that by vesting this power in a PRA, the law in effect
unconstitutionally authorizes it to shorten the term of
office of incumbent elective local officials. Both
objections were dismissed on the ground that the
holding of a PRA is not the recall itself. With respect to
the first objection, it was held that it is the power to recall
and not the power to initiate recall that the Constitution
gave to the people. With respect to the second
objection, it was held that a recall resolution "merely
sets the stage for the official concerned before the
tribunal of the people so he can justify why he should
be allowed to continue in office. [But until] the people
render their sovereign judgment, the official concerned
remains in office . . . ."
If these preliminary proceedings do not produce a
decision by the electorate on whether the local official
concerned continues to enjoy the confidence of the
people, then, the prohibition in paragraph (b) against
the holding of a recall, except one year after the official's
assumption of office, cannot apply to such proceedings.
The second reason why the term "recall" in paragraph
(b) refers to recall election is to be found in the purpose
of the limitation itself. There are two limitations in
paragraph (b) on the holding of recalls: (1) that no recall
shall take place within one year from the date of
assumption of office of the official concerned, and (2)
that no recall shall take place within one year
immediately preceding a regular local election.
The purpose of the first limitation is to provide a
reasonable basis for judging the performance of an
elective local official. In the Bower case cited by this
8 disturbance due to political partisanship." Unfortunately,
Court in Angobung v. COMELEC, it was held that "The
9 the law cannot really provide for a period of honeymoon
only logical reason 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 policies and decisions." The one-year limitation was
reckoned as of the filing of a petition for recall because
the Municipal Code involved in that case expressly
provided that "no removal petition shall be filed against
any officer or until he has actually held office for at least
twelve months." But however the period of prohibition is
determined, the principle announced is that the purpose
of the limitation is to provide a reasonable basis for
evaluating the performance of an elective local official.
Hence, in this case, as long as the election is held
outside the one-year period, the preliminary
the end of the first year in office of a local official.
It cannot be argued that to allow recall proceedings to
be initiated before the official concerned has been in
office for one-year would be to allow him to be judged
without sufficient basis. As already stated, it is not the
holding of PRA nor the adoption of recall resolutions
that produces a judgment on the performance of the
official concerned; it is the vote of the electorate in the
election that does. Therefore, as long as the recall
election is not held before the official concerned has
completed one year in office, he will not be judged on
his performance prematurely.
Third, to construe the term "recall" in paragraph (b) as
including the convening of the PRA for the purpose of
discussing the performance in office of elective local
officials would be to unduly restrict the constitutional
right of speech and of assembly of its members. The
people cannot just be asked on the day of the election
to decide on the performance of their officials. The
crystallization and formation of an informed public
opinion takes time. To hold, therefore, that the first
limitation in paragraph (b) includes the holding of
assemblies for the exchange of ideas and opinions
among citizens is to unduly curtail one of the most
cherished rights in a free society. Indeed, it is wrong to
assume that such assemblies will always eventuate in
a recall election. To the contrary, they may result in the
expression of confidence in the incumbent.
Our esteemed colleague Justice Puno says in his
dissent that the purpose of the one-year period in
paragraph (b) is to provide the local official concerned
a "period of repose" during which "[his] attention should
not be distracted by any impediment, especially by
or moratorium in politics. From the day an elective
official assumes office, his acts become subject to
scrutiny and criticism, and it is not always easy to
determine when criticism of his performance is
politically motivated and when it is not. The only
safeguard against the baneful and enervating effects of
partisan politics is the good sense and self restraint of
the people and its leaders against such shortcomings
of our political system. A respite from partisan politics
may have the incidental effect of providing respite from
partisanship, but that is not really the purpose of the
limitation on recall under the law. The limitation is only
intended to provide a sufficient basis for evaluating and
judging the performance of an elected local official.
In any event, it is argued that the judgments of PRAs
are not "as politically unassailable as recalls initiated
directly by the people." Justice Puno cites the
"embarrassing repudiation by the people of [Kaloocan
City's] Preparatory Recall Assembly" when, instead of
ousting Mayor Rey Malonzo, they reelected him.
Two points may be made against this argument.
One is that it is no disparagement of the PRA that in the
ensuing election the local official whose recall is sought
is actually reelected. Laws converting municipalities
into cities and providing for the holding of plebiscites
during which the question of cityhood is submitted to the
people for their approval are not always approved by
the people. Yet, no one can say that Congress is not a
good judge of the will of the voters in the locality. In the
case of recall elections in Kaloocan City, had it been
shown that the PRA was resorted to only because those
behind the move to oust the incumbent mayor failed to
obtain the signatures of 25% of the voters of that city to
a petition for his recall, there may be some plausibility
for the claim that PRAs are not as good a gauge of the
people's will as are the 25 % of the voters.
Indeed, recalls initiated directly by 25% of the registered
voters of a local government unit cannot be more
representative of the sentiments of the people than
those initiated by PRAs whose members represent the
entire electorate in the local government unit. Voters
who directly initiate recalls are just as vulnerable to
political maneuverings or manipulations as are those
composing PRAs.
The other point regarding Justice Puno's claim is that
the question here is not whether recalls initiated by 25%
of the voters are better. The issue is whether the one-
year period of limitation in paragraph (b) includes the
convening of the PRA. Given that question, will
convening the PRA outside this period make it any
more representative of the people, as the petition filed
by 25% of the registered voters is claimed to be?
To sum up, the term "recall" in paragraph (b) refers to
the recall election and not to the preliminary
proceedings to initiate recall —
1. Because §74 speaks of limitations on "recall" which,
according to §69, is a power which shall be exercised
by the registered voters of a local government unit.
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 in paragraph (b);
2. Because the purpose of the first limitation in
paragraph (b) is to provide voters a sufficient basis for
judging an elective local official, and final judging is not
done until the day of the election; and
3. Because to construe the limitation in paragraph (b)
as including the initiation of recall proceedings would
unduly curtail freedom of speech and of assembly
guaranteed in the Constitution.
As the recall election in Pasay City is set on April 15,
2000, more than one year after petitioner assumed
office as mayor of that city, we hold that there is no bar
to its holding on that date.
(2)
On Whether the Phrase "Regular Local Election" in the
Same Paragraph (b) of §74 of the Local Government
Code includes the Election Period for that Regular
Election or Simply the Date of Such Election.
Petitioner contends, however, that the date set by the
COMELEC for the recall election is within the second
period of prohibition in paragraph (b). He argues that
the phrase "regular local elections" in paragraph (b)
does not only mean "the day of the regular local
election" which, for the year 2001 is May 14, but the
election period as well, which is normally at least forty
five (45) days immediately before the day of the election.
Hence, he contends that beginning March 30, 2000, no
recall election may be held.
This contention is untenable.
The law is unambiguous in providing that "[n]o recall
shall take place within . . . one (1) year immediately
preceding a regular local election." Had Congress
intended this limitation to refer to the campaign period,
which period is defined in the Omnibus Election Code, 10
it could have expressly said so.
Moreover, petitioner's interpretation would severely
limit the period during which a recall election may be
held. Actually, because no recall election may be held
until one year after the assumption of office of an
elective local official, presumably on June 30 following
his election, the free period is only the period from July
1 of the following year to about the middle of May of the
succeeding year. This is a period of only nine months
and 15 days, more or less. To construe the second
limitation in paragraph (b) as including the campaign
period would reduce this period to eight months. Such
an interpretation must be rejected, because it would
devitalize the right of recall which is designed to make
local government units "more responsive and
accountable."
Indeed, there is a distinction between election period
and campaign period. Under the Omnibus Election
Code, unless otherwise fixed by the COMELEC, the
11
election period commences ninety (90) days before the
day of the election and ends thirty (30) days thereafter.
Thus, to follow petitioner's interpretation that the
second limitation in paragraph (b) includes the "election
period" would emasculate even more a vital right of the
people.
To recapitulate the discussion in parts 1 and 2, §74
imposes limitations on the holding of recall elections.
First, paragraph (a) prohibits the holding of such
election more than once during the term of office of an
elective local official. Second, paragraph (b) prohibits
the holding of such election within one year from the
date the official assumed office. And third, paragraph (b)
prohibits the holding of a recall election within one year
immediately preceding a regular local election. As
succinctly stated in Paras v. COMELEC, "[p]aragraph
12
(b) construed together with paragraph (a) merely
designates the period when such elective local official
may be subject to recall election, that is, during the
second year of office."
(3)
On Whether the Recall RESOLUTION was Signed by a
Majority of the PRA and Duly Verified.
Petitioner alleges other grounds for seeking the
annulment of the resolution of the COMELEC ordering
the holding of a recall election. He contends that a
majority of the signatures of the members of the PRA
was not obtained because 74 members did not really
sign the recall resolution. According to petitioner, the 74
merely signed their names on pages 94-104 of the
resolution to signify their attendance and not their
concurrence. Petitioner claims that this is shown by the
word "Attendance" written by hand at the top of the
page on which the signatures of the 74 begin.
This contention has no basis. To be sure, this claim is
being raised for the first time in this case. It was not
raised before the COMELEC, in which the claim made
by petitioner was that some of the names in the petition
were double entries, that some members had
withdrawn their support for the petition, and that
Wenceslao Trinidad's pending election protest was a
prejudicial question which must first be resolved before
the petition for recall could be given due course. The
order of the COMELEC embodying the stipulations of
the parties and defining the issues to be resolved does
not include the issue now being raised by petitioner.
Although the word "Attendance" appears at the top of
the page, it is apparent that it was written by mistake
because it was crossed out by two parallel lines drawn
across it. Apparently, it was mistaken for the attendance
sheet which is a separate document. It is absurd to
believe that the 74 members of the PRA who signed the
recall resolution signified their attendance at the
meeting twice. It is more probable to believe that they
signed pages 94-104 to signify their concurrence in the
recall resolution of which the pages in question are part.
The other point raised by petitioner is that the recall
petition filed in the COMELEC was not duly verified,
because Atty. Nelson Ng, who notarized it, is not
commissioned as notary public for Pasay City but for
Makati City. As in the case of the first claim, this issue
was not raised before the COMELEC itself. It cannot,
therefore, be raised now.
WHEREFORE, G.R. No. 140560 is DISMISSED for
lack of merit, while the petition in G.R. No. 140714 is
DISMISSED for having been rendered moot and
academic.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Quisumbing, Buena,
Gonzaga-Reyes and Ynares-Santiago, JJ., concur.
Melo, J., is on leave.
Puno, J., see dissent.
Vitug, J., I also reiterate my separate opinion in the
resolution of 5 Apr. 2000.
Kapunan, J., See attached separate and dissenting
opinion.
Panganiban, J., I joined the dissents of JJ. Puno and
Kapunan.
Pardo, J., I join J. Puno in dissent.
De Leon Jr., J., I join the dissenting opinion of Justice
R.S. Puno.
Separate Opinions
PUNO, J., dissenting opinion;
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 an laws. Our search should start
with the Constitution which provides the matrix of our
rights. All our fundamental laws set in stone the
1 requirement in America recall statutes, unmistakably
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 or 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. COMELEC 3
we articulated the rationale of the right of recall, viz.:
. . . 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 elections 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
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 logical reason 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 Boulderthat:
[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 . . .
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:
. . . 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. The 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, we scoured the history of recall
4
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." 5
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 cam 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.
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 a new, 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. Hence, for one year, the
6
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 Act of the United States which had a provision
7
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." Needless to
8
state, our own laws and derivative foreign law repudiate
the majority ruling that ". . . 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 that recall
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.
KAPUNAN, J., separate and dissenting opinion;
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 provides:
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. Less than 10 months thereafter, or on 29 May
1
1999, the People's Recall Assembly (PRA) of Pasay
City convened and passed a resolution to initiate the
recall of Mayor Claudio. On 2 July 1999, a petition for
2
the recall of Mayor Claudio was filed with the
Commission on Elections (COMELEC). In a 3
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," ruled that since the petition was
4
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. Hence, the present
5
case where the majority fund 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 he 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, wherein it was
6 cited the case of In Re Bower , stating that "the only
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
congressional constituent assembly. The initiation of a
recall process is a lesser act and there is no rhyme or a
reason why it cannot be entrusted to and exercised by
the elected representatives of the people. 7 deleterious to its development and growth.
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. It is the PRA
8 for the lapse of the first time bar and, thereafter, file the
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 , is to guard against the abuse of the
10
power of recall. In so holding, the Court authoritatively
11
logical reason 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
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
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 used
whimsically. 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 official's 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
It can readily be observed that Senator Pimentel used
the phrase "move to recall" in describing the activity
which can only he 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 any time 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. 1 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 logical reason 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.
Footnotes
G.R. No. 141787 September 18, 2000
MANUEL H. AFIADO, JASMINIO B. QUEMADO, JR.
AND GLESIE L. TANGONAN, petitioners,
vs.
COMMISSION ON ELECTIONS
(COMELEC), respondent.
DECISION
DE LEON, JR., J.:
Before us is a Petition for Mandamus with Prayer for
Preliminary Mandatory Injunction, praying for the early
resolution of the petition for the "recall" of former Vice-
Mayor Amelita S. Navarro (currently the Mayor) of
Santiago City, which was filed with respondent
Commission on Elections (COMELEC).
The facts are as follows:
During the May 11, 1998 elections in Santiago City, Joel
Miranda became the substitute candidate for his father,
Jose "Pempe" Miranda, for the position of Mayor. When
the ballots were counted, Joel emerged as the winner
over his opponent Antonio Abaya and he was later
proclaimed. Amelita S. Navarro also won and was
proclaimed as the Vice-Mayor of Santiago City.
On May 13, 1998, the defeated candidate, Antonio
Abaya, filed before the COMELEC against Joel
Miranda a Petition to Declare Null and Void Substitution
with Prayer for Issuance of Writ of Preliminary
Injunction and/or Temporary Restraining Order,
docketed as SPA No. 98-288, which was later amended.
The amended petition sought the declaration of the
certificate of candidacy of Jose Miranda, the father of
Joel, as null and void.
The petition, as amended, was granted by the
COMELEC en banc, and consequently the election and
proclamation of Joel Miranda as Mayor of Santiago City
was annulled. This ruling was affirmed by the Supreme
Court in a Decision promulgated on July 28, 1999 in
G.R. No. 136531, entitled "Joel Miranda vs. Antonio
Abaya and COMELEC." In that decision, we ruled that
since the certificate of candidacy of Jose Miranda was
not valid, he could not be validly substituted by his son,
Joel Miranda, as a mayoralty candidate in Santiago City.
Hence, Joel Miranda could not be validly proclaimed as
the winner in the mayoralty elections. Vice-Mayor
Amelita S. Navarro thus became the new Mayor of
Santiago City by virtue of the law on succession. Joel
1
Miranda filed a motion for reconsideration but this was
denied with finality by the Supreme Court in a
Resolution dated September 28, 1999.
Navarro took her oath of office and assumed her
position as Mayor of Santiago City on October 11, 1999.
Meanwhile, on July 12, 1999, while the said G.R. No.
136531 was still pending in the Supreme Court,
petitioners Manuel H. Afiado, Jasminio B. Quemado
and Glesie L. Tangonan convened the barangay
officials of Santiago City who compose the Preparatory
Recall Assembly (PRA) at the Santiago City People's
Coliseum after giving them due notice. On the same
date, July 12, 1999, the PRA passed and adopted
Preparatory Recall Assembly Resolution No. 1 for the
recall of Vice-Mayor Amelita S. Navarro. The pertinent
portions of the said Resolution No. 1 read as follows:
ASSEMBLY RESOLUTION NO. 1
-oOo-
RESOLUTION OF THE
PREPARATORY RECALL
ASSEMBLY OF THE BARANGAY
OFFICIALS OF SANTIAGO CITY FOR
THE RECALL OF THE INCUMBENT
VICE-MAYOR OF SANTIAGO CITY
xxx xxx xxx
WHEREAS, during the Preparatory
Recall Assembly the official acts of City
Vice Mayor Navarro that brought forth
the loss of confidence in her capacity
and fitness to discharge the duties and
to perform the functions of her public
office were recounted for the
contemplation and evaluation of the
members present, to wit:
1. Her lack of respect and due regard
for superior authority…
2. Her greed for political power which
worked against public interest and the
general welfare…
3. Her lack of regard for public officials,
subordinates and lowly employees,
which is conduct unbecoming of a
public official and speaks of her
unprofessionalism…
4. Her constant insistence to usurp the
powers or authority vested upon other
public officials…
5. Her application of delaying tactics in
the SP actions on the City
Government's annual budget…
6. Her disregard of parliamentary rules
by imposing her unsolicited and
unnecessary opinion unto the city
councilors…
7. Because of her preoccupation
towards matters other than those of
public concerns, substantial part of the
legislative tasks of the Sangguniang
Panlungsod brought to it for action have
remained unacted unfinished (sic);
 8. Her alleged malfeasance of
corruption while she was still the City
Mayor in acting capacity, specifically
her direct hand in the anomalous
acquisition of six dump trucks, a request
for investigation for (sic) which is
pending at the Office of the
Ombudsman;
9. Her antagonistic attitude towards
development concerns…
WHEREAS, on accounts of the
documented facts and stated
hereinabove the members of the
Preparatory Recall Assembly present
have lost, after due thought their
confidence upon the incumbent City
Vice Mayor Amelita S. Navarro.
NOW WHEREFORE, upon a motion
duly seconded, be it -
RESOLVED, as it is
hereby RESOLVED to INVOKE THE
RESCISSION OF THE ELECTORAL
MANDATE OF THE INCUMBENT
CITY VICE-MAYOR AMELITA S.
NAVARRO for LOSS OF
CONFIDENCE through a recall election
to be set by the COMMISSION ON
ELECTION as provided for under
Section 71 of the Local Government
Code of 1991;
xxx xxx xxx
APPROVED by the majority of the
members of the Preparatory Recall
Assembly held on July 12, 1999 at the
People's Coliseum, Santiago City,
Isabela.2
According to the petitioners, PRA Resolution No. 1
together with all the reglementary requirements, has
been forwarded and submitted to the office of
respondent COMELEC at Santiago City and later to its
Head Office in Manila through the Provincial Elections
Office and Regional Elections Office.
On September 9, 1999, while the subject Preparatory
Recall Resolution No. 1 was under evaluation in the
COMELEC's Head Office, then Vice-Mayor Amelita S.
Navarro filed a petition, docketed as EM No. 99-006,
with the COMELEC which sought the nullification of the
said PRA Resolution No. 1. In Navarro's petition, the
herein petitioners Afiado, Quemado and Tangonan (as
officers of the Preparatory Recall Assembly of Santiago
City) were impleaded as the respondents therein.
Hearings in EM No. 99-006 were then conducted at the
COMELEC's head office. After the deadline for the
1âwphi 1
submission of memoranda on December 1, 1999,
herein petitioners as the respondents in that case,
alleged that they were not informed nor were they
aware of further developments. This prompted them to
file on December 27, 1999 an Urgent Motion for the
Early Resolution of the Petition (EM No. 99-006).
According to the herein petitioners, the act of herein
respondent COMELEC in not deciding the said petition
violates Rule 18, Section 7 of the 1993 COMELEC
Rules of Procedure which provides that:
Sec. 7. Period to Decide by the Commission En
Banc. - Any case or matter submitted to or heard by the
Commission en banc shall be decided within thirty (30)
days from the date it is deemed submitted for decision
or resolution, except a motion for reconsideration of a
decision or resolution of a Division in Special Actions
and Special cases which shall be decided within fifteen
(15) days from the date the case or matter is deemed
submitted for decision, unless otherwise provided by
law.
The herein petitioners allege that the act of respondent
COMELEC in not resolving the petition, EM No. 99-006,
within the reglementary period constitutes neglect in the
performance of its duties and responsibilities; and that
the alleged inaction of respondent COMELEC will
render the said case and/or PRA Resolution No. 1 moot
and academic inasmuch as recall elections cannot be
undertaken anymore come June 30, 2000 pursuant to
Section 74 of the 1991 Local Government Code, which
provides that:
Sec. 74. Limitation 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 local election. 3
Finally, on February 18, 2000, sensing the urgency of
the situation since PRA Resolution No. 1 was not yet
acted upon by the COMELEC, the herein petitioners
filed the present petition for mandamus to compel
respondent COMELEC to resolve and deny
immediately Navaro's petition, docketed therein as EM
No. 99-006, and in effect to give due course to and
implement the said PRA Resolution.
reason of her official acts as such. To recall, then, the
petitioner when she is already the incumbent City
Mayor is to deviate from the expressed will of the PRA.
Having, thus, succeeded to the position of City Mayor,
the petitioner was placed beyond the reach of the
effects of the PRA Resolution. 5

The corollary issue in the case at bench is whether or

not an elective official who became City Mayor by legal
succession can be the subject of a recall election by
virtue of a Preparatory Recall Assembly Resolution
which was passed or adopted when the said elective
official was still the Vice-Mayor.
We deny the petition.
On March 31, 2000 respondent COMELEC issued and
promulgated in EM No. 99-006 a Resolution which
The specific purpose of the Preparatory Recall
Assembly was to remove Amelita S. Navarro as the
elected Vice-Mayor of Santiago City since PRA
Resolution No. 1 dated July 12, 1999 expressly states
that "…it is hereby resolved to invoke the rescission of
the electoral mandate of the incumbent City Vice-Mayor
Amelita S. Navarro for loss of confidence through a
recall election to be set by the Commission on Election
as provided for under Section 71 of the Local
4 Government Code of 1991." However, the said PRA
6

denied due course to the subject PRA Resolution No. 1.
This development therefore rendered the present
petition for mandamus moot and academic. The record
shows that herein petitioners' counsel of record was
furnished copies of the COMELEC's Resolution dated
March 31, 2000 by registered mail on April 1, 2000.
Anent the corollary issue as to whether or not Mayor
Navarro can be the subject of recall election by virtue of
Resolution No. 1 of the Preparatory Recall Assembly
which was passed when she was still the elected City
Vice-Mayor, the same has become moot and academic.
We quote below the pertinent portion of the
COMELEC's Resolution dated March 31, 2000 in EM
No. 99-006 and to which we agree, to wit:
The assumption by legal succession of the petitioner as
the new Mayor of Santiago City is a supervening event
which rendered the recall proceeding against her moot
and academic. A perusal of the said Resolution reveals
that the person subject of the recall process is a specific
elective official in relation to her specific office. The said
resolution is replete with statements, which leave no
doubt that the purpose of the assembly was to recall
petitioner as Vice Mayor for her official acts as Vice
Mayor. The title itself suggests that the recall is
intended for the incumbent Vice Mayor of Santiago City.
The third paragraph of the resolution recounted " the
official acts of City Vice Mayor Navarro that brought
forth the loss of confidence in her capacity and fitness
to discharge the duties and to perform the functions of
her public office." And because of such acts, the
assembly "RESOLVED to invoke the rescission of the
electoral mandate of the incumbent City Vice
Mayor." Clearly, the intent of the PRA as expressed in
the said Resolution is to remove the petitioner as Vice
Mayor for they already lost their confidence in her by
Resolution No. 1 is no longer applicable to her
inasmuch as she has already vacated the office of Vice-
Mayor on October 11, 1999 when she assumed the
position of City Mayor of Santiago City.
Even if the Preparatory Recall Assembly were to
reconvene to adopt another resolution for the recall of
Amelita Navarro, this time as Mayor of Santiago City,
the same would still not prosper in view of Section 74
(b) of the Local Government Code of 1991 which
provides that "No recall shall take place within one (1)
year from the date of the official's assumption of office
or one (1) year immediately preceding a regular
election." There is no more allowable time in the light of
that law within which to hold recall elections for that
purpose. The then Vice-Mayor Amelita S. Navarro
assumed office as Mayor of Santiago City on October
11, 1999. One year after her assumption of office as
Mayor will be October 11, 2000 which is already within
the one (1) year prohibited period immediately
preceding the next regular election in May 2001.
WHEREFORE, the petition for mandamus is hereby
DISMISSED.
SO ORDERED.
G.R. No. 90878 January 29, 1990
PABLITO V. SANIDAD, petitioner,
vs.
THE COMMISSION ON ELECTIONS, respondent.
MEDIALDEA, J.:
This is a petition for certiorari assailing the
constitutionality of Section 19 of Comelec Resolution
No. 2167 on the ground that it violates the constitutional
guarantees of the freedom of expression and of the
press.
On October 23, 1989, Republic Act No. 6766, entitled
"AN ACT PROVIDING FOR AN ORGANIC ACT FOR
THE CORDILLERA AUTONOMOUS REGION" was
enacted into law. Pursuant to said law, the City of
Baguio and the Cordilleras which consist of the
provinces of Benguet, Mountain Province, Ifugao, Abra
and Kalinga-Apayao, all comprising the Cordillera
Autonomous Region, shall take part in a plebiscite for
the ratification of said Organic Act originally scheduled
last December 27, 1989 which was, however, reset to
January 30, 1990 by virtue of Comelec Resolution No.
2226 dated December 27, 1989.
The Commission on Elections, by virtue of the power
vested by the 1987 Constitution, the Omnibus Election
Code (BP 881), said R.A. 6766 and other pertinent
election laws, promulgated Resolution No. 2167, to
govern the conduct of the plebiscite on the said Organic
Act for the Cordillera Autonomous Region.
In a petition dated November 20, 1989, herein petitioner
Pablito V. Sanidad, who claims to be a newspaper
columnist of the "OVERVIEW" for the BAGUIO
MIDLAND COURIER, a weekly newspaper circulated in
the City of Baguio and the Cordilleras, assailed the
constitutionality of Section 19 of Comelec Resolution
No. 2167, which provides:
Section 19. Prohibition on columnists, commentators or
announcers. — During the plebiscite campaign period,
on the day before and on the plebiscite day, no mass
media columnist, commentator, announcer or
personality shall use his column or radio or television
time to campaign for or against the plebiscite issues.
It is alleged by petitioner that said provision is void and
unconstitutional because it violates the constitutional
guarantees of the freedom of expression and of the
press enshrined in the Constitution.
Unlike a regular news reporter or news correspondent
who merely reports the news, petitioner maintains that
as a columnist, his column obviously and necessarily
contains and reflects his opinions, views and beliefs on
any issue or subject about which he writes. Petitioner
believes that said provision of COMELEC Resolution
No. 2167 constitutes a prior restraint on his
constitutionally-guaranteed freedom of the press and
further imposes subsequent punishment for those who
may violate it because it contains a penal provision, as
follows:
Article XIII, Section 122, Election Offenses and Banned
Acts or Activities. — Except to the extent that the same
may not be applicable plebiscite. the banned
acts/activities and offenses defined in and penalized by
the Omnibus Election Code ('Sections 261, 262, 263
and Article' XXII, B.P. Blg. 881) and the pertinent
provisions of R.A. No. 6646 shall be aplicable to the
plebiscite governed by this Resolution.
Petitioner likewise maintains that if media practitioners
were to express their views, beliefs and opinions on the
issue submitted to a plebiscite, it would in fact help in
the government drive and desire to disseminate
information, and hear, as well as ventilate, all sides of
the issue.
On November 28, 1989, We issued a temporary
restraining order enjoining respondent Commission on
Elections from enforcing and implementing Section 19
of Resolution No. 2167. We also required the
respondent to comment on the petition.
On January 9, 1990, respondent Commission on
Elections, through the Office of the Solicitor General
filed its Comment.
Respondent Comelec maintains that the questioned
provision of Comelec Resolution No. 2167 is not
violative of the constitutional guarantees of the freedom
of expression and of the press. Rather it is a valid
implementation of the power of the Comelec to
supervise and regulate media during election or
plebiscite periods as enunciated in Article IX-C, Section
4 of the 1987 Constitution of the Republic of the
Philippines.
It is stated further by respondent that Resolution 2167
does not absolutely bar petitioner from expressing his
views and/or from campaigning for or against the
Organic Act. He may still express his views or campaign
for or against the act through the Comelec space and
airtime. This is provided under Sections 90 and 92 of
BP 881:
Section 90. Comelec Space. — Commission shall
procure space in at least one newspaper of general
circulation in every province or city: Provided, however,
That in the absence of said newspaper, publication
shall be done in any other magazine or periodical in
said province or city, which shall be known as "Comelec
Space" wherein candidates can announce their
candidacy. Said space shall be allocated, free of charge
equally and impartially within the area in which the
newspaper is circulated.
Section 92. Comelec Time. — The Commission shall
procure radio and television time to be known as
"Comelec Time" which shall be allocated equally and
impartially among the candidates within the area of
coverage of all radio and television stations. For this
purpose, the franchise of all radio broadcasting and
television stations are hereby amended so as to provide
radio or television time, free of charge, during the period
of the campaign.
Respondent Comelec has relied much on Article IX-C
of the 1987 Constitution and Section 11 of R.A. 6646 as
the basis for the promulgation of the questioned Section
19 of Comelec Resolution 2167.
Article IX-C of the 1987 Constitution provides:
The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation
and other public utilities, media of communication or
information, all grants, special privileges, or
concessions granted by the Government or any
subdivision, agency or instrumentality thereof, including
any government-owned or controlled corporation or its
subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right
to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among
candidates in connection with the objective of holding
free, orderly, honest, peaceful and credible elections.
Similarly, Section 11 of Republic Act No. 6646 (The
Electoral Reform Law of 1987) likewise provides:
Prohibited forms of election Propaganda. — In addition
to the forms of election propaganda prohibited under
Section 85 of Batas Pambansa Blg. 881, it shall be
unlawful: ...
(b) for any newspaper, radio, broadcasting or television
station, or other mass media, or any person making use
of the mass media to sell or to give free of charge print
space or air time for campaign or other political
purposes except to the Commission as provided under
Sections 90 and 92 of Batas Pambansa Blg. 881. Any
mass media columnist, commentator, announcer, or
personality who is a candidate for any elective office
shall take a leave of absence from his work as such
during the campaign period. (Emphasis ours)
However, it is clear from Art. IX-C of the 1987
Constitution that what was granted to the Comelec was
the power to supervise and regulate the use and
enjoyment of franchises, permits or other grants issued
for the operation of transportation or other public utilities,
media of communication or information to the end that
equal opportunity, time and space, and the right to reply,
including reasonable, equal rates therefor, for public
information campaigns and forums among
candidates are ensured. The evil sought to be
prevented by this provision is the possibility that a
franchise holder may favor or give any undue
advantage to a candidate in terms of advertising space
or radio or television time. This is also the reason why
a "columnist, commentator, announcer or
personality, who is a candidate for any elective office is
required to take a leave of absence from his work during
the campaign period (2nd par. Section 11(b) R.A. 6646).
It cannot be gainsaid that a columnist or commentator
who is also a candidate would be more exposed to the
voters to the prejudice of other candidates unless
required to take a leave of absence.
However, neither Article IX-C of the Constitution nor
Section 11 (b), 2nd par. of R.A. 6646 can be construed
to mean that the Comelec has also been granted the
right to supervise and regulate the exercise by media
practitioners themselves of their right to expression
during plebiscite periods. Media practitioners exercising
their freedom of expression during plebiscite periods
are neither the franchise holders nor the candidates. In
fact, there are no candidates involved in a plebiscite.
Therefore, Section 19 of Comelec Resolution No. 2167
has no statutory basis.
In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16,
1970, where the constitutionality of the prohibition of
certain forms of election propaganda was assailed, We
ruled therein that the prohibition is a valid exercise of
the police power of the state "to prevent the perversion
and prostitution of the electoral apparatus and of the
denial of equal protection of the laws." The evil sought
to be prevented in an election which led to Our ruling in
that case does not obtain in a plebiscite. In a plebiscite,
votes are taken in an area on some special political
matter unlike in an election where votes are cast in
favor of specific persons for some office. In other words,
the electorate is asked to vote for or against issues, not
candidates in a plebiscite.
Anent respondent Comelec's argument that Section 19
of Comelec Resolution 2167 does not absolutely bar
petitioner-columnist from expressing his views and/or
from campaigning for or against the organic act
because he may do so through the Comelec space
and/or Comelec radio/television time, the same is not
meritorious. While the limitation does not absolutely bar
petitioner's freedom of expression, it is still a restriction
on his choice of the forum where he may express his
view. No reason was advanced by respondent to justify
such abridgement. We hold that this form of regulation
is tantamount to a restriction of petitioner's freedom of
expression for no justifiable reason.
Plebiscite issues are matters of public concern and
importance. The people's right to be informed and to be
able to freely and intelligently make a decision would be
better served by access to an unabridged discussion of
the issues, including the forum. The people affected by
the issues presented in a plebiscite should not be
unduly burdened by restrictions on the forum where the
right to expression may be exercised. Comelec spaces
and Comelec radio time may provide a forum for
expression but they do not guarantee full dissemination
of information to the public concerned because they are
limited to either specific portions in newspapers or to
specific radio or television times.
ACCORDINGLY, the instant petition is GRANTED.
Section 19 of Comelec Resolution No. 2167 is declared
null and void and unconstitutional. The restraining order
herein issued is hereby made permanent.
SO ORDERED.
G.R. No. 103328 October 19, 1992
HON. ROY A. PADILLA, JR., In his capacity as Governor of the
Province of Camarines Norte, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
ROMERO, J.:
Pursuant to Republic Act No. 7155, the Commission on Elections promulgated
on November 13, 1991, Resolution No. 2312 which reads as follows:
WHEREAS, Republic Act No. 7155 approved on September 6, 1991 creates
the Municipality of Tulay-Na-Lupa in the Province of Camarines Norte to be
composed of Barangays Tulay-Na-Lupa, Lugui, San Antonio, Mabilo I,
Napaod, Benit, Bayan-Bayan, Matanlang, Pag-Asa, Maot, and Calabasa, all
in the Municipality of Labo, same province.
WHEREAS under Section 10, Article X of the 1987 Constitution 1 the creation
of a municipality shall be subject to approval by a majority of votes cast in a
plebiscite in the political units directly affected, and pursuant to Section 134
of the Local Government Code (Batas Pambansa Blg. 337) 2 said plebiscite
shall be conducted by the Commission on Elections;
WHEREAS, Section 6 of said Republic Act No. 7155 provides that the
expenses in holding the plebiscite shall be take out of the Contingent Fund
under the current fiscal year appropriations;
NOW, THEREFORE, BE IT RESOLVED, as the Commission hereby resolves,
to promulgated (sic) the following guidelines to govern the conduct of said
plebiscite:
1. The plebiscite shall be held on December 15, 1991, in the areas or units
affected, namely the barangays comprising he proposed Municipality of
Tulay-Na-Lupa and the remaining areas of the mother Municipality of Labor,
Camarines Norte (Tan vs. COMELEC, G.R. No. 73155, July 11, 1986).
xxx xxx xxx
In the plebiscite held on December 15, 1991 throughout the Municipality of
Labo, only 2,890 votes favored its creation while 3,439 voters voted against
the creation of the Municipality of Tulay-Na-Lupa. Consequently, the day after
the political exercise, the Plebiscite Board of Canvassers declared the
rejection and disapproval of the independent Municipality of Tulay-Na-Lupa
by a majority of votes. 3
Thus, in this special civil action of certiorari, petitioner as Governor of
Camarines Norte, seeks to set aside the plebiscite conducted on December
15, 1991 throughout the Municipality of Labo and prays that a new plebiscite
be undertaken as provided by RA 7155. It is the contention of petitioner that
the plebiscite was a complete failure and that the results obtained were invalid
and illegal because the plebiscite, as mandated by COMELEC Resolution No.
2312 should have been conducted only in the political unit or units
affected, i.e. the 12 barangays comprising the new Municipality of Tulay-Na-
Lupa namely Tulay-Na-Lupa, Lugui, San Antonio, Mabilo I, Napaod, Benit,
Bayan-Bayan, Matanlang, Pag-Asa, Maot, and Calabasa. Petitioner stresses
that the plebiscite should not have included the remaining area of the mother
unit of the Municipality of Labo, Camarines Norte. 4
In support of his stand, petitioner argues that with the approval and ratification
of the 1987 Constitution, particularly Article X, Section 10, the ruling set forth
in Tan v. COMELEC 5 relied upon by respondent COMELEC is now passe,
thus reinstating the case of Paredes v. Executive Secretary 6 which held that
where a local unit is to be segregated from a parent unit, only the voters of the
unit to be segrated should be included in the plebiscite. 7
Accordingly, the issue in this case is whether or not respondent COMELEC
committed grave abuse of discretion in promulgating Resolution No. 2312 and,
consequently, whether or not the plebiscite conducted in the areas comprising
the proposed Municipality of Tulay-Na-Lupa and the remaining areas of the
mother Municipality of Labo is valid.
We rule that respondent COMELEC did not commit grave abuse in
promulgating Resolution No. 2312 and that the plebiscite, which rejected the
creation of the proposed Municipality of Tulay-Na-Lupa, is valid.
Petitioner's contention that our ruling in Tan vs. COMELEC has been
superseded with the ratification of the 1987 Constitution, thus reinstating our
earlier ruling in Paredes vs. COMELEC is untenable. Petitioner opines that
since Tan vs. COMELEC was based on Section 3 of Article XI of the 1973
Constitution our ruling in said case is no longer applicable under Section 10
of Article X of the 1987 Constitution, 8 especially since the latter provision
deleted the words "unit or."
We do not agree. The deletion of the phrase "unit or" in Section 10, Article X
of the 1987 Constitution from its precursor, Section 3 of Article XI of the 1973
Constitution not affected our ruling in Tan vs. Comelec as explained by then
CONCOM Commissioner, now my distinguished colleague, Associate Justice
Hilario Davide, during the debates in the 1986 Constitutional Commission, to
wit:
Mr. Maambong: While we have already approved the deletion of "unit or," I
would like to inform the Committee that under the formulation in the present
Local Government Code, the words used are actually "political unit or units."
However, I do not know the implication of the use of these words. Maybe there
will be no substantial difference, but I just want to inform the Committee about
this.
Mr. Nolledo: Can we not adhere to the original "unit or units"? Will there be no
objection on the part of the two Gentlemen from the floor?
Mr. Davide: I would object. I precisely asked for the deletion of the words "unit
or" because in the plebiscite to be conducted, it must involve all the units
affected. If it is the creation of a barangay plebiscite because it is affected. It
would mean a loss of a territory.9 (Emphasis supplied)
It stands to reason that when the law states that the plebiscite shall be
conducted "in the political units directly affected," it means that residents of
the political entity who would be economically dislocated by the separation of
a portion thereof have a right to vote in said plebiscite. Evidently, what is
contemplated by the phase "political units directly affected," is the plurality of
political units which would participate in the plebiscite. 10 Logically, those to
be included in such political areas are the inhabitants of the 12 barangays of
the proposed Municipality of Tulay-Na-Lupa as well as those living in the
parent Municipality of Labo, Camarines Norte. Thus, we conclude that
respondent COMELEC did not commit grave abuse of discretion in
promulgating Resolution No. 2312.
WHEREFORE, the instant petition is hereby DISMISSED.
SO ORDERED.
G.R. No. 125646 September 10, 1999
CITY OF PASIG, petitioner,
vs.
THE HONORABLE COMMISSION ON ELECTION and
THE MUNICIPALITY OF CAINTA, PROVINCE OF
RIZAL, respondents.
G.R. No. 128663 September 10, 1999
MUNICIPALITY OF CAINTA, PROVINCE OF
RIZAL, petitioner,
vs.
COMMISSION ON ELECTIONS CITY OF
PASIG, respondent.
YNARES-SANTIAGO, J.:
Before us are two (2) petitions which both question the
propriety of the suspension of plebiscite proceedings
pending the resolution of the issue of boundary disputes
between the Municipality of Cainta and the City of Pasig.
G.R. No. 125646 involves the proposed Barangay
Karangalan while G.R. No. 128663 involves the proposed
Barangay Napico. The City of Pasig claims these areas as
part of its jurisdiction/territory while the Municipality of
Cainta claims that these proposed barangays encroached
upon areas within its own jurisdiction/territory.
The antecedent facts are as follows:
On April 22, 1996, upon petition of the residents of
Karangalan Village that they be segregated from its
mother Barangays Manggahan and Dela Paz, City of
Pasig, and to be converted and separated into a distinct
barangay to be known as Barangay Karangalan, the City
Council of Pasig passed and approved Ordinance No. 21,
Series of 1996, creating Barangay Karangalan in Pasig
City. 1Plebiscite on the creation of said barangay was
thereafter set for June 22, 1996.
Meanwhile, on September 9, 1996, the City of Pasig
similarly issued Ordinance No. 52, Series of 1996, creating
Barangay Napico in Pasig City. 2 Plebiscite for this
purpose was set for March 15, 1997.
Immediately upon learning of such Ordinances, the
Municipality of Cainta moved to suspend or cancel the
respective plebiscites scheduled, and filed Petitions with
the Commission on Elections (hereinafter referred to as
COMELEC) on June 19, 1996 (UND No. 96-016)3 and
March 12, 1997 (UND No. 97-002), respectively. In both
Petitions, the Municipality of Cainta called the attention of
the COMELEC to a pending case before the Regional Trial
Court of Antipolo, Rizal, Branch 74, for settlement of
boundary dispute. 4 According to the Municipality of Cainta,
the proposed barangays involve areas included in the
boundary dispute subject of said pending case; hence, the
scheduled plebiscites should be suspended or cancelled
until after the said case shall have been finally decided by
the court.
In UND No. 96-016, the COMELEC accepted the position
of the Municipality of Cainta and ordered the plebiscite on
the creation of Barangay Karangalan to be held in
abeyance until after the court has settled with finality the
boundary dispute involving the two municipalities.5 Hence,
the filing of G.R. No. 125646 by the City of Pasig.
The COMELEC, however, ruled differently in UND No. 97-
002, dismissing the Petition for being moot in view of the
holding of the plebiscite as scheduled on March 15, 1997
where the creation of Barangay Napico was ratified and
approved by the majority of the votes cast therein.6 Hence,
the filing of G.R. No. 128663 by the Municipality of Cainta.
The issue before us is whether or not the plebiscites
scheduled for the creation of Barangays Karangalan and
Napico should be suspended or cancelled in view of the
pending boundary dispute between the two local
governments.
To begin with, we agree with the position of the COMELEC
that Civil Case No. 94-3006 involving the boundary dispute
between the Municipality of Cainta and the City of Pasig
presents a prejudicial question which must first be decided
before plebiscites for the creation of the proposed
barangays may be held.
The City of Pasig argues that there is no prejudicial
question since the same contemplates a civil and criminal
action and does not come into play where both cases are
civil, as in the instant case. While this may be the general
rule, this Court has held in Vidad v. RTC of Negros
Oriental, Br. 42,7 that, in the interest of good order, we can
very well suspend action on one case pending the final
outcome of another case closely interrelated or linked to
the first.
In the case at bar, while the City of Pasig vigorously claims
that the areas covered by the proposed Barangays
Karangalan and Napico are within its territory, it can not
deny that portions of the same area are included in the
boundary dispute case pending before the Regional Trial
Court of Antipolo. Surely, whether the areas in controversy
shall be decided as within the territorial jurisdiction of the
Municipality of Cainta or the City of Pasig has material
bearing to the creation of the proposed Barangays
Karangalan and Napico. Indeed, a requisite for the
creation of a barangay is for its territorial jurisdiction to be
properly identified by metes and bounds or by more or less
permanent natural boundaries.8 Precisely because
territorial jurisdiction is an issue raised in the pending civil
case, until and unless such issue is resolved with finality,
to define the territorial jurisdiction of the proposed
barangays would only be an exercise in futility. Not only
that, we would be paving the way for potentially ultra
vires acts of such barangays. Indeed,
in Mariano, Jr. v. Commission on Elections,9 we held that
— entertaining future challenges to their acts if they manage
The importance of drawing, with precise strokes the
territorial boundaries of a local unit of government cannot
be overemphasized. The boundaries must be clear for
they define the limits of the territorial jurisdiction of a local
government unit. It can legitimately exercise powers of
government only within the limits of its territorial jurisdiction.
Beyond these limits, its acts are ultra vires. Needless to
state, any uncertainty in the boundaries of local
government units will sow costly conflicts in the exercise
of governmental powers which ultimately will prejudice the
people's welfare.
Moreover, considering the expenses entailed in the
holding of plebiscites, it is far more prudent to hold in
abeyance the conduct of the same, pending final
determination of whether or not the entire area of the
proposed barangays are truly within the territorial
jurisdiction of the City of Pasig.
Neither do we agree that merely because a plebiscite had
already been held in the case of the proposed Barangay
Napico, the petition of the Municipality of Cainta has
already been rendered moot and academic. The issues
raised by the Municipality of Cainta in its petition before
the COMELEC against the holding of the plebiscite for the
creation of Barangay Napico are still pending
determination before the Antipolo Regional Trial Court.
In Tan v. Commission on Elections,10 we struck down the
moot and academic argument as follows —
Considering that the legality of the plebiscite itself is
challenged for non-compliance with constitutional
requisites, the fact that such plebiscite had been held and
a new province proclaimed and its officials appointed, the
case before Us cannot truly be viewed as already moot
and academic. Continuation of the existence of this newly
proclaimed province which petitioners strongly profess to
have been illegally born, deserves to be inquired into by
this Tribunal so that, if indeed, illegality attaches to its
creation, the commission of that error should not provide
the very excuse for perpetration of such wrong. For this
Court to yield to the respondents' urging that, as there has
been fait accompli, then this Court should passively
accept and accede to the prevailing situation is an
unacceptable suggestion. Dismissal of the instant petition,
as respondents so propose is a proposition fraught with
mischief. Respondents' submission will create a
dangerous precedent. Should this Court decline now to
perform its duty of interpreting and indicating what the law
is and should be, this might tempt again those who strut
about in the corridors of power to recklessly and with
ulterior motives, create, merge, divide and/or alter the
boundaries of political subdivisions, either brazenly or
stealthily, confident that this Court will abstain from
to bring about a fait accompli.
Therefore, the plebiscite on the creation of Barangay
Karangalan should be held in abeyance pending final
resolution of the boundary dispute between the City of
Pasig and the Municipality of Cainta by the Regional Trial
Court of Antipolo City. In the same vein, the plebiscite held
on March 15, 1997 to ratify the creation of Barangay
Napico, Pasig City, should be annulled and set aside.
WHEREFORE, premises considered,
1. The Petition of the City of Pasig in G.R. No. 125646 is
DISMISSED for lack of merit; while
2. The Petition of the Municipality of Cainta in G.R. No.
128663 is GRANTED. The COMELEC Order in UND No.
97-002, dated March 21, 1997, is SET ASIDE and the
plebiscite held on March 15, 1997 to ratify the creation of
Barangay Napico in the City of Pasig is declared null and
void. Plebiscite on the same is ordered held in abeyance
until after the courts settle with finality the boundary
dispute between the City of Pasig and the Municipality of
Cainta, in Civil Case No. 94-3006.
No pronouncement as to costs.
G.R. No. 132603 September 18, 2000
ELPIDIO M. SALVA, VILMA B. DE LEON,
CLEMENTE M. MATIRA, REGION P. DE LEON,
MARILOU C. DE LEON, JAIME RELEVO, JOEY S.
VERGARA, CARMENCITA A. SALVA, DIONISIO B.
DE LEON, JORGE S. VERGARA, GORGONIO B. DE
LEON, AND OTHERS TOO NUMEROUS TO
ENUMERATE AS A CLASS SUIT,petitioners,
vs.
HON. ROBERTO L. MAKALINTAL, Presiding
Judge, Regional Trial Court, Br. XI, Balayan,
Batangas; HON. SANGGUNIANG PANGLALA
WIGAN OF BATANGAS, BATANGAS CITY; HON.
SANGGUNIANG PANGBAYAN, CALACA,
BATANGAS; and HON. COMMISSION ON
ELECTIONS, respondents.
BUENA, J.:
This is an appeal by certiorari under Rule 45 of the
Rules of Court seeking the reversal of the Order dated
February 25, 1998, of the Regional Trial Court of
1
Balayan, Batangas, Branch XI, in Civil Case No. 3442,
2 In an Order dated February 25, 1998, the trial court
denying the issuance of a temporary restraining order
and/or preliminary injunction to enjoin the Commission
on Elections (COMELEC) from holding the plebiscite
scheduled on February 28, 1998, on the ground of lack
of jurisdiction.
The facts are undisputed.
On February 23, 1998, petitioners, as officials and
residents of barangay San Rafael, Calaca, Batangas,
filed a class suit against the Sangguniang
Panglalawigan of Batangas, Sangguniang
Pambayan of Calaca, Batangas, and the Commission
on Elections (COMELEC), docketed as Civil Case No.
3442, before the Regional Trial Court of Balayan,
Batangas, Branch XI, for annulment of Ordinance No.
05 and Resolution No. 345, series of 1997, both
enacted by the Sangguniang Panglalawigan of
Batangas, and COMELEC Resolution No. 2987, series
of 199S, with prayer for preliminary
injunction/temporary restraining order. Ordinance No.
05 declared the abolition of barangay San Rafael and
3
its merger with barangay Dacanlao, municipality of
Calaca, Batangas and accordingly instructed the
COMELEC to conduct the required plebiscite as
provided under Sections 9 and 10 of Republic Act No.
7160, otherwise known as the Local Government Code
of 1991. On the other hand, Resolution No. 345
4 5
affirmed the effectivity of Ordinance No. 05, thereby
overriding the veto exercised by the governor of
6
Batangas. Ordinance No. 05 was vetoed by the
7
governor of Batangas for being ultra vires, particularly,
as it was not shown that the essential requirements
under Section 9, in relation to Section 7, of Republic Act
No. 7160, referring to the attestations or certifications of
the Department of Finance (DOF), National Statistics
Office (NSO) and the Land Management Bureau of the
Department of Environment and Natural Resources
(DENR), were obtained. Pursuant to the foregoing
ordinance and resolution, on February 10, 1998, the
COMELEC promulgated Resolution No. 2987,
providing for the rules and regulations governing the
conduct of the required plebiscite scheduled on
February 28, 1998, to decide the issue of the abolition
of barangay San Rafael and its merger
with barangay Dacanlao, Calaca,
Batangas. Simultaneous with the filing of the action
8
before the trial court, petitioners also filed an ex
parte motion for the issuance of a temporary restraining
order to enjoin respondents from enforcing Ordinance
No. 05, Resolution No. 345, and COMELEC Resolution
No. 2987.
denied the ex parte motion for the issuance of a
temporary restraining order and/or preliminary
injunction for lack of jurisdiction. According to the trial
court, the temporary restraining order/injunction sought
by petitioners is directed only to COMELEC Resolution
No. 2987. The trial court ruled that any petition or action
questioning an act, resolution or decision of the
COMELEC must be brought before the Supreme
Court. 9
On February 27, 1998, petitioners filed the instant
petition with prayer for a temporary restraining order,
without filing a motion for reconsideration of the trial
court's Order dated February 25, 1998, claiming the
urgency or immediate necessity to enjoin the conduct
of the plebiscite scheduled on February 28, 1998. 10
In a Resolution dated March 10, 1998, the Court
directed the parties to maintain the status
quo prevailing at the time of the filing of the petition. 11
On August 28, 1998, the Solicitor General filed a
Manifestation and Motion in lieu of Comment, declaring
that he concurs with petitioners' cause and
recommending that the instant petition be given due
course. Consequently, the Court further resolved on
12
September 29, 1998 to require the COMELEC and
the Sangguniang Panglalawigan of Batangas to submit
their own Comment on the petition.
In a Resolution dated June 15, 1999, the Court resolved
to give due course to the petition and require the parties
to submit their respective memoranda. 13
In their Memorandum filed on October 26, 1999,
petitioners submitted the following issue for the
resolution of this Court:
"WHETHER OR NOT THE RESPONDENT COURT
HAS JURISDICTION TO ENJOIN THE COMELEC
FROM IMPLEMENTING ITS RESOLUTION NO. 2987,
SERIES OF 1998, WHICH PROVIDED FOR THE
RULES AND REGULATIONS FOR THE CONDUCT
OF THE PLEBISCITE SCHEDULED ON FEBRUARY
28, 1998 TO DECIDE ON THE ABOLITION OF
BARANGAY SAN RAFAEL AND ITS MERGER WITH
BARANGAY DACANLAO, CALACA, BATANGAS,
PENDING THE DETERMINATION OF CIVIL CASE NO.
3442 FOR THE ANNULMENT OF ORDINANCE NO.
05, RESOLUTION NO. 345 AND COMELEC
RESOLUTION NO. 2987." 14
First, petitioners contend that the assailed Order dated
February 25, 1998, of the Regional Trial Court of
Balayan, Batangas, Branch XI, encourages multiplicity
of suit[s] and splitting a single cause of action," contrary
to Section 3, Rule 2, of the Rules of Court. Petitioners
15
maintain that since COMELEC Resolution No. 2987
was only issued pursuant to Ordinance No. 05 and
Resolution No. 345 of the Sangguniang
Panglalawigan of Batangas, the propriety of the
issuance of COMELEC Resolution No. 2987 is
dependent upon the validity of the Ordinance No. 05
and Resolution No. 345. And considering that the
16
jurisdiction of the trial court to hear and determine the
validity of Ordinance No. 05 and Resolution No. 345 is
not disputed, the assailed Order dated February 25,
1998, directing petitioners to seek the preliminary
injunction and/or temporary restraining order before this
Court, advances multiplicity of suits and splitting a
single cause of action.
Second, petitioners assert that when the COMELEC
exercises its quasi judicial functions under Section 52
of the Omnibus Election Code (Batas Pambansa Blg.
881), its acts are subject to the exclusive review by this
Court; but when the COMELEC performs a purely
ministerial but, such act is subject to scrutiny by the
Regional Trial Court, citing Filipinas Engineering and
17
Machine Shop vs. Ferrer (135 SCRA 25 [1985]), thus:
"It cannot be gainsaid that the powers vested by the
Constitution and the law on the Commission on
Elections may either be classified as those pertaining to
its adjudicatory or quasi-judicial functions, or those
which are inherently administrative and sometimes
ministerial in character."' 18
Corollary thereto, petitioners submit that "[t]he conduct
of [a] plebiscite, pursuant to Ordinance No. 05 and
Resolution No. 345, is not adjudicatory [or quasi judicial]
in nature but simply ministerial or administrative in
nature [and only] in obedience to the aforesaid
Ordinance and Resolution," citing Garces vs. Court of
Appeals, 259 SCRA 99 (1996), thus:
". . . To rule otherwise would surely burden the Court
with trivial administrative questions that are best
ventilated before the RTC [Regional Trial Court], a court
which the law vests with the power to exercise original
jurisdiction over 'all cases not within the exclusive
jurisdiction of any court, tribunal, person or body
exercising judicial or quasi judicial functions'." 19
Lastly, petitioners allege that while the plebiscite sought
to be enjoined has already been conducted on February
28, 1998, the instant petition is far from being moot and
academic, claiming that the actual holding of the said
plebiscite could not validate an otherwise invalid
ordinance and resolution; that there are still substantial
20
matters to be resolved; assuming arguendo that this
21
petition has become moot and academic, ". . . courts
will decide a question otherwise moot and academic if
it is 'capable of repetition, yet evading review"'; and 22
finally, petitioners maintain that this Court has resolved
to require the parties to maintain the status quo
prevailing at the time of the filing of the petition, that is,
a day before the plebiscite was scheduled to be
conducted. 23
Concurring with petitioners' arguments, the Solicitor
General, in his Memorandum filed on September 7,
1999, asserts that ". . . [I]t is already settled in this
jurisdiction that what is contemplated by the terms 'any
decision, order or ruling' of the COMELEC reviewable
by certiorari to this Honorable Court, as provided under
Section 7, Article IX-A of the [1987] Constitution, are
those that relate to the COMELEC's exercise of
its adjudicatory or quasi-judicialpowers
involving elective regional, provincial and city officials."
(Citations omitted.) The Solicitor General further
24
argues that the issuance of COMELEC Resolution No.
2987 is a ministerial duty of the COMELEC in the
exercise of its administrative functions, hence, it is
submitted that the aforecited constitutional provision is
inapplicable.
Public respondent Commission on Elections
(COMELEC), on the other hand, submits that the power
to review or reverse COMELEC Resolution No. 2987
solely belongs to this Court, citing the earlier cases
of Zaldivar vs. Estenzo(23 SCRA 533, 540-
541[1968]); Luison vs. Garcia (L-10916, May 20,
1957); Macud vs. COMELEC (23 SCRA 224 [1968]);
and Aratuc vs. COMELEC (88 SCRA 251, 272 [1979]);
thus:
". . . For even without the express constitutional
prescription that only this Court may review the
decisions, orders and rulings of the Commission on
Elections, it is easy to understand why no interference
whatsoever with the performance of the Commission on
Elections of its functions should be allowed unless
emanating from this Court. The observation of Acting
Chief Justice J.B.L. Reyes in Albano v. Arranz while not
precisely in point, indicates the proper approach. Thus:
'It is easy to realize the chaos that would ensue if the
Court of First Instance of each and every province were
to arrogate unto itself the power to disregard, suspend,
or contradict any order of the Commission on Elections;
that constitutional body would be speedily reduced to
impotence." 26
The COMELEC further argues that ". . . if a Regional
Trial Court does not have jurisdiction to issue writs
against statutory agencies of government like the ones
cited above [referring to the former Court of Industrial
Relations, Philippine Patent Office, Public Service
Commission, Social Security Commission, National
Electrification Administration and Presidential
Commission on Good Government], a fortiori it can not
have any such jurisdiction over the Commission on
Elections, a constitutional independent body expressly
clothed by the 1987 Constitution with, among others,
quasi-judicial functions and tasked with one of the most
paramount aspects of a democratic government. . . ."
Finally, the COMELEC contends that the temporary
restraining order sought by petitioners has been
rendered moot and academic by the actual holding of
the plebiscite sought to be enjoined. 28
The appeal is meritorious.
Section 7, Article IX-A of the 1987 Constitution provides
in part that:
"SECTION 7. . . . . Unless otherwise provided by this
Constitution or by law, any decision, order, or ruling of
each Commission may be brought to the Supreme
Court on certiorari by the aggrieved party within this
days from receipt of a copy thereof."
In Garces vs. Court of Appeals (259 SCRA 99 [1996])
and Filipinas Engineering and Machine Shop vs.
Ferrer (135 SCRA 25 [1985]), we found occasion to
interpret the foregoing provision in this wise:
". . . What is contemplated by the term 'final orders,
25
rulings and decisions' of the COMELEC reviewable by
certiorari by the Supreme Court as provided by law are
those rendered in actions or proceedings before the
COMELEC and taken cognizance of by the said body
in the exercise of its adjudicatory or quasi-judicial
powers." 29
In Filipinas, we have likewise affirmed that powers
vested by the Constitution and the law on the
Commission on Elections may either be classified as
those pertaining to its adjudicatory or quasi-judicial
functions, or those which are inherently administrative
and sometimes ministerial in character. 30
As aptly explained by the Solicitor General, in the
instant case, after the COMELEC ascertained the
issuance of the ordinance and resolution declaring the
abolition of barangay San Rafael, it issued COMELEC
Resolution No. 2987 calling for a plebiscite to be held
in the affected barangays, pursuant to the provisions of
Section 10 of Republic Act No. 7160. We agree with the
Solicitor General that ". . . . [t]he issuance of
[COMELEC] Resolution No. 2987 is thus a ministerial
duty of the COMELEC that is enjoined by law and is part
and parcel of its administrative functions. It involves no
exercise of discretionary authority on the part of
respondent COMELEC; let alone an exercise of its
adjudicatory or quasi-judicial power to hear and resolve
controversies defining the rights and duties of party-
litigants, relative to the conduct of elections of public
officers and the enforcement of the election laws."
27
(Citation omitted.) Briefly, COMELEC Resolution No.
31
2987 which provides for the rules and regulations
governing the conduct of the required plebiscite, was
not issued pursuant to the COMELEC's quasi-judicial
functions but merely as an incident of its inherent
administrative functions over the conduct of plebiscites,
thus, the said resolution may not be deemed as a "final
order" reviewable by certiorari by this Court. Any
question pertaining to the validity of said resolution may
be well taken in an ordinary civil action before the trial
courts.
Even the cases cited by the public respondent in
support of its contention — that the power to review or
reverse COMELEC Resolution No. 2987 solely belongs
to this Court are simply not in point. Zaldivar vs.
Estenzo32 speaks of the power of the COMELEC to
enforce and administer all laws relative to the conduct
of elections to the exclusion of the judiciary. In the
present case, petitioners are not contesting the
exclusive authority of the COMELEC to enforce and
administer election laws. Luison vs. Garcia refers to
33
this Court's power to review "administrative decisions,"
particularly referring to a COMELEC resolution
declaring a certain certificate of candidacy null and void,
based on Article X, Section 2 of the 1935 Constitution.
In Macud vs. COMELEC, we reiterated that when a
34
board of canvassers rejects an election return on the
ground that it is spurious or has been tampered with,
the aggrieved party may elevate the matter to the
COMELEC for appropriate relief, and if the COMELEC
sustains the action of the board, the aggrieved party
may appeal to this Court. In both Luison and Macud,
the assailed COMELEC resolutions fall within the
purview of "final orders, rulings and decisions" of the
COMELEC reviewable by certiorari by this Court.
In view of the foregoing, public respondent's other
contentions deserve scant consideration.
WHEREFORE, the petition for review is hereby
GRANTED, and the assailed Order dated February 25,
1998, of the Regional Trial Court of Balayan, Batangas,
Branch XI is hereby SET ASIDE and ANNULLED. The
Regional Trial Court of Balayan, Batangas, Branch XI
is ordered to proceed with dispatch in resolving Civil
Case No. 3442. The execution of the result of the
plebiscite held on February 28, 1998 shall be deferred
depending on the outcome of Civil Case No. 3442.
SO ORDERED.
465 Phil. 800
PUNO, J.:
This is a petition
for certiorari and mandamus filed by
petitioners Ma. Salvacion Buac and
Antonio Bautista assailing the October 28,
2002 'en banc Resolution of the
Commission on Elections (COMELEC)
which held that it has no jurisdiction over
controversies involving the conduct of
plebiscite and the annulment of its
result.The facts show that in April, 1988,
a plebiscite was held in Taguig for the
ratification of the Taguig Cityhood Law
(Republic Act No. 8487) proposing the
conversion of Taguig from a municipality
into a city. Without completing the
canvass of sixty-four (64) other election
returns, the Plebiscite Board of
Canvassers declared that the "NO" votes
won and that the people rejected the
conversion of Taguig to a city.
The Board of Canvassers was, however,
ordered by the COMELEC en banc to
reconvene and complete the canvass. The
Board did and in due time issued an
Order proclaiming that the negative votes
prevailed in the plebiscite conducted.
Forthwith, petitioners filed with the
COMELEC a petition to annul[1] the
results of the plebiscite with a prayer for
revision and recount of the ballots cast
therein. They alleged that fraud and
irregularities attended the casting and
counting of votes. The case was docketed
as an election protest and raffled to the
COMELEC Second Division.[2]
Private respondent Cayetano intervened
and moved to dismiss the petition on the
ground of lack of jurisdiction of the
COMELEC. He claimed that a plebiscite
cannot be the subject of an election
protest. He averred that the jurisdiction
to hear a complaint involving the conduct
of a plebiscite is lodged with the Regional
Trial Court (RTC).[3]
The COMELEC Second Division initially
gave due course to the petition and ruled
that it has jurisdiction over the case. It
treated the petition as akin to an election
protest considering that the same
allegations of fraud and irregularities in
the casting and counting of ballots and
preparation of returns are the same
grounds for assailing the results of an
election. It then ordered the Taguig ballot
boxes to be brought to its Manila office
and created revision committees to revise
and recount the plebiscite ballots.[4]
In an unverified motion, intervenor
Cayetano moved for reconsideration of
the COMELEC Order insisting that it has
no jurisdiction to hear and decide a
petition contesting the results of a
plebiscite.
In a complete turnaround, the COMELEC
2nd Division issued an Order on
November 29, 2001 granting the Motion
for Reconsideration. It dismissed the
petition to annul the results of the Taguig
plebiscite and ruled that the COMELEC
has no jurisdiction over said case as it
involves an exercise of quasi-judicial
powers not contemplated under Section 2
(2), Article IX (C) of the 1987
Constitution.[5]
On appeal, the COMELEC en
banc affirmed the ruling of its 2nd
Division. It held that the COMELEC
cannot use its power to enforce and
administer all laws relative to plebiscites
as this power is purely administrative or
executive and not quasi-judicial in nature.
It concluded that the jurisdiction over the
petition to annul the Taguig plebiscite
results is lodged with the RTC under
Section 19 (6) of Batas Pambansa Big. 129
which provides that the RTC shall have
exclusive original jurisdiction in cases not
within the exclusive jurisdiction of any
court or body exercising judicial or quasi-
judicial functions.[6]
Hence this petition.
Petitioners Ma. Salvacion Buac and
Antonio Bautista reiterate their
submission that jurisdiction to decide
plebiscite protest cases is constitutionally
vested with the COMELEC. They likewise
claim that the impugned Order is
discriminatory as during the pendency of
the Taguig case, the COMELEC assumed
jurisdiction over a similar case
concerning the revision and recount of
the plebiscite ballots involving the
conversion of Malolos into a city. The
COMELEC resolved said case and already
declared Malolos a city.
Respondents contend that there is no
such action as a plebiscite protest under
the Constitution, the laws and the
COMELEC rules as they provided only for
election protests; the quasi-judicial
jurisdiction of the COMELEC over
election contests extends only to cases
enumerated in Section 2(2), Article IX (C)
of the Constitution, which does not
include controversies over plebiscite
results; and, even if the petition to annul
plebiscite results is akin to an election
protest, it is the RTC that has jurisdiction
over election protests involving
municipal officials, and the COMELEC
has only appellate jurisdiction in said
cases.
The petition is impressed with merit.
First. The key to the case at bar is its
nature. The case at bar involves the
determination of whether the electorate
of Taguig voted in favor of, or against the
conversion of the municipality of Taguig
into a highly urbanized city in the
plebiscite conducted for the purpose.
Respondents submit that the regular
courts of justice, more specifically, the
Regional Trial Court, has the jurisdiction
to adjudicate any controversy concerning
the conduct of said plebiscite. We hold
that the invocation of judicial power to
settle disputes involving the conduct of a
plebiscite is misplaced. Section 1, Article
VIII of the Constitution defines judicial
power as including "the duty of the courts
of justice to settle actual controversies
involving rights which are legally
demandable and enforceable and to
determine whether or not there has been
a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part
of any branch or instrumentality of the
Government." According to Mr. Justice
Isagani Cruz, "the first part of the
authority represents the traditional
concept of judicial power involving the
settlement of conflicting rights as
conferred by law."[7] The case at bar
assailing the regularity of the conduct of
the Taguig plebiscite does not fit the kind
of a case calling for the exercise of judicial
power. It does not involve the violation of
any legally demandable right and its
enforcement. There is no plaintiff or
defendant in the case at bar for it merely
involves the ascertainment of the vote of
the electorate of Taguig whether they
approve or disapprove the conversion of
their municipality to a highly urbanized
city. There is no invocation of a private
right conferred by law that has been
violated and which can be vindicated
alone in our courts of justice in an
adversarial proceeding. Rather, the issue
in the case at bar is the determination of
the sovereign decision of the electorate of
Taguig. The purpose of this
determination is more to protect the
sovereignty of the people and less to
vindicate the private interest of any
individual. Such a determination does not
contemplate the clash of private rights of
individuals and hence cannot come under
the traditional jurisdiction of courts.
Second. If the determination of the result
of a plebiscite is not fit for the exercise
ofjudicial power, the invocation of
Section 19 of B.P. Big. 129, as amended,
otherwise known as the Judiciary
Reorganization Act, is ineluctably
errant, viz:
Sec. 19. Jurisdiction in civil
cases. Regional Trial Courts
shall exercise exclusive
original jurisdiction:
.
. In all civil actions in which the
subject of the litigation is incapable
of pecuniary estimation;
xxx xxx xxx
1. In all cases not within the exclusive
jurisdiction of any court, tribunal,
person or body exercising
jurisdiction of any court, tribunal,
person or body exercising judicial
or quasi-judicial functions.
There cannot be any bout with doubt that
the aforequoted provisions refer to civil
cases or actions. A civil action is one by
which a party sues another for the
enforcement or protection of a right or
the prevention or redress of a
wrong.[8] As stressed above, a plebiscite
involves the expression of the public will
on a public issue. The determination of
the public will is a subject that does not fit
the jurisdiction of civil courts, for civil
courts are established essentially to
resolve controversies between private
persons.[9]
The case of Salva v. Macalintal [10] does
not support the overarching thesis that
"any question on the validity of plebiscite,
or any dispute on the result of the
plebiscite falls within the general
jurisdiction of regular trial courts."
Looking at it with clear eyes, Salva
resolved the validity, not of a plebiscite or
its result, but of a provision in the rules
and regulations issued by the COMELEC
governing the conduct of a plebiscite.
Third. To grant the RTC jurisdiction over
petitions to annul plebiscite results can
lead to jumbled justice. Consider for
instance where the plebiscite is national
as it deals with the ratification of a
proposed amendment to our
Constitution. Snap thinking will tell us
that it should be the COMELEC that
should have jurisdiction over a petition to
annul its results. If jurisdiction is given to
the regular courts, the result will not
enhance the orderly administration of
justice. Any regional trial court from
every nook and corner of the country will
have jurisdiction over a petition
questioning the results of a nationwide
plebiscite. Bearing in mind that the
jurisdiction of these courts is limited only
within their respective judicial regions,
the difficulties that will attend their
exercise of jurisdiction would be many if
not unmanageable.
Fourth. An eye contact with our
Constitution and related laws will reveal
that only contests relating to the elections,
returns and qualifications of elected
officials are subject to the exercise of
judicial power of our courts or quasi-
judicial power of our administrative
agencies, thus: (a) contests involving
elective municipal officials are tried and
decided by trial courts of general
jurisdiction, while those involving
barangay officials are tried and decided
by trial courts of limited jurisdiction; in
both cases, however, the COMELEC
exercises appellate jurisdiction; (b)
contests involving all elective regional,
provincial and city officials fall within the
exclusive original jurisdiction of the
COMELEC in the exercise of its quasi-
judicial power; (c) contests involving
members of the House of Representatives
fall within the exclusive original
jurisdiction of the House of
Representatives Electoral Tribunal in the
exercise of quasi-judicial power; (d)
contests involving members of the Senate
fall within the exclusive original
jurisdiction of the Senate Electoral
Tribunal in the exercise of quasi-judicial
power; and, (e) contests involving the
President and the Vice President fall
within the exclusive original jurisdiction
of the Presidential Electoral Tribunal,
also in the exercise of quasi-judicial
power.
What grabs the eyeball is the intent of our
Constitution and election laws to
subject only contests relating to the
elections, returns and qualifications
of elected officials from the barangay to
the President of the Philippines to the
exercise of judicial or quasi-judicial
powers of courts or administrative
tribunals. Contests which do not involve
the election, returns and qualifications of
elected officials are not subjected to the
exerci of the judicial or quasi-judicial
powers of courts oradministra i agencies.
Clearly, controversies concerning the
conduct plebiscite appertain to this
category. In the case at bar. conduct of the
Taguig plebiscite is the core of the
controversy. This is a matter that involves
the enforcement and administration of a
law relative to a plebiscite. It falls under
the jurisdiction of the COMELEC under
Section 2(1), Article IX (C) of the
Constitution which gives it the power "to
enforce and administer all laws and
regulations relative to the conduct of a x x
x plebiscite x x x."
Fifth. The Court agrees with the following
submissions of the Solicitor General,
viz.
xxx xxx xxx
There can hardly be any
doubt that the test and intent
of the constitutional grant of
powers to the COMELEC is to
give it all the necessary and
incidental powers for it to
achieve the holding of free,
orderly, honest and peaceful
and credible elections
[Maruhom v. COMELEC, 331
SCRA 473 (2000)]. Hence,
the all encompassing power
endowed the COMELEC to
enforce and administer all
laws and regulations relative
to the conduct of an election
(or plebiscite, initiative,
referendum and recall)
includes the power to cancel
proclamations [(Nolasco v.
COMELEC, 275 SCRA 762
(1997)]. The COMELEC also
has the power to supervise
and control the proceedings
of the board of canvassers,
suspend and/or annul illegal
and void proclamations,
declare a failure of elections
and promulgate rules and
regulations concerning the
conduct of elections.
While the jurisdiction of the
COMELEC is most commonly
invoked over popular
elections that which involves
the choice or selection ' of
candidates to public office by
popular vote, the same may
likewise be invoked in
connection with the conduct
of plebiscite.
In the present case,
petitioners filed a petition for
revision of ballots cast in a
plebiscite. The COMELEC
dismissed the petition on the
ground that it has no
jurisdiction over the petition
considering that the issue
raised therein calls for the
exercise by the COMELEC of conduct of the plebiscite.
its judicial or quasi-judicial Hence, the COMELEC,
power. According to the whenever it is called upon to
COMELEC, there is no law correct or check what the
nor any constitutional Board of Canvassers
provision that confers it with erroneously or fraudulently
jurisdiction to hear and did during the canvassing,
decide a case contesting the can verify or ascertain the
officially proclaimed results true results of the plebiscite
of a plebiscite based on frauds either through a pre-
and irregularities. proclamation case or through
revision of ballots. To remove
The COMELEC's position is
from the COMELEC the
highly untenable. Article LX-
power to ascertain the true
C, Section 2(1) is very explicit
results of the plebiscite
that the COMELEC has the
through revision of ballots is
power to "enforce administer
to render nugatory its
all laws and regulations
constitutionally mandated
relative to the conduct of an
power to "enforce" laws
election, plebiscite, initiative,
relative to the conduct of
referendum and recall." To
plebiscite. It is not correct to
enforce means to cause to
argue that the quasi-judicial
take effect or to cause the
power of the COMELEC is
performance of such act or
limited to contests relating to
acts necessary to bring into
the elections, returns and
actual effect or operation, a
qualifications of all elective
plan or measure. When we
regional, provincial and city
say the COMELEC has the
officials, and appellate
power to enforce all laws
jurisdiction over all contests
relative to the conduct of a
involving elective municipal
plebiscite, it necessarily
officials decided by trial
entails all the necessary and
courts of general jurisdiction,
incidental power for it to
or involving elective
achieve the holding of an
Barangay officials decided by
honest and credible plebiscite.
trial courts of limited
Obviously, the power of the
jurisdiction. If the COMELEC
COMELEC is not limited to
has quasi-judicial power to
the mere administrative
enforce laws relating to
function of conducting the
elective officials then there is
plebiscite. The law is clear. It
no reason why it cannot
is also mandated to enforce
exercise the same power to
the laws relative to the
ascertain the true results of a
 plebiscite. All that the
Constitution provides is that
the COMELEC shall exercise
exclusive jurisdiction over all
contests relating to elective
officials. The provision is not
a limiting provision in the
sense that it only limits the
quasi-judicial power of the
COMELEC to said cases. To
repeat, the power of the
COMELEC to ascertain the
true results of the plebiscite is
implicit in its power to
enforce all laws relative to the
conduct of plebiscite.
COMELEC's claim that the
petition for revision of ballots
is cognizable by the Regional
Trial Courts pursuant to
Section 19 (6) of the Judiciary
Reorganization Act of 1980
whieh provides that
"Regional Trial Courts shall
exercise exclusive original
jurisdiction x x x in cases not
within the exclusive
jurisdiction of any court
tribunal, person or body
exercisingjudicial or quasi-
judicial functions lacks merit.
To repeat, the power to
ascertain the true results of
the plebiscite is necessarily
included in the power to
enforce all laws relative to the
conduct of plebiscite.[11]
Sixth. From our earliest Constitution and
election laws, the conduct of plebiscite
and determination of its result have
always been the business of the
COMELEC and not the regular courts. If
the COMELEC has no jurisdiction over
this matter, our laws would have been
amended to that effect. There is another
reason why the jurisdiction of the
COMELEC to resolve disputes involving
plebiscite results should be upheld. Such
a case involves the appreciation of ballots
which is best left to the COMELEC. As an
independent constitutional body
exclusively charged with the power of
enforcement and administration of all
laws and regulations relative to the
conduct of an election, plebiscite,
initiative, referendum and recall, the
COMELEC has the indisputable expertise
in the field of election and related laws.
Consequently, we should be extra
cautious in delimiting the parameters of
the COMELEC's broad powers. We
should give the COMELEC enough
latitude in the exercise of its expertise, for
to straightjacket its discretion in the
enforcement and administration of laws
relating to the conduct of election,
plebiscite or referendum may render it
impotent. This is the first time that the
COMELEC's jurisdiction over a petition
to annul the results of a plebiscite has
been assailed and surprisingly, this is the
first time that the COMELEC has yielded
its historic jurisdiction. More inexplicable
is the inconsistent stance of the
COMELEC on the issue. As stressed by
the petitioners, the COMELEC assumed
jurisdiction over the case assailing the
result of the Malolos plebiscite. In the
case at bar, it refused to exercise
jurisdiction.
Seventh. Finally, it appears that the
Motion for Reconsideration of private
respondent Congressman Cayetano was
filed out of time. Section 2, Rule 19 of the
COMELEC Rules of Procedure provides
that a motion for reconsideration should
be filed within five (5) days from receipt
of the COMELEC Order or Resolution.
Congressman Cayetano himself
admitted[12] that he received a copy of
the October 3, 2001 Resolution of the
COMELEC 2nd Division on October 9,
2001. The records show that it was only
ten (10) days after said receipt, or on
October 19, 2001, that private respondent
Cayetano filed his undated and unverified
Motion for Reconsideration. Clearly, the
COMELEC 2nd Division had no
jurisdiction to entertain his Motion. .
IN VIEW WHEREOF, the petition
is GRANTED. The COMELEC is directed
to reinstate the petition to annul the
results of the 1998 Taguig plebiscite and
to decide it without delay.
SO ORDERED.
Davide, Jr., C.J., Vitug, Panganiban,
Quisumbing, Ynares-Sanliago, Sandoval-
Gutierrez, Austria-Martinez,
Corona and Azcuna, JJ.,concur.
Carpio and Carpio Morales, JJ., see
dissenting opinions. Callejo, Sr., .J.,
concurs in the dissent of Carpio Morales.
Tinga, J., took no part. One of the
intervenors and former counsel for the
intervenor.
G.R. No. 176970 December 8, 2008
ROGELIO Z. BAGABUYO, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
DECISION
BRION, J.:
Before us is the petition for certiorari, prohibition, and
mandamus,1 with a prayer for the issuance of a
temporary restraining order and a writ of preliminary
injunction, filed by Rogelio Bagabuyo (petitioner) to
prevent the Commission on Elections (COMELEC)
from implementing Resolution No. 7837 on the ground
that Republic Act No. 93712 - the law that Resolution No.
7837 implements - is unconstitutional.
BACKGROUND FACTS
On October 10, 2006, Cagayan de Oro's then
Congressman Constantino G. Jaraula filed and
sponsored House Bill No. 5859: "An Act Providing for
the Apportionment of the Lone Legislative District of the
City of Cagayan De Oro."3This law eventually became
Republic Act (R.A.) No. 9371.4 It increased Cagayan de
Oro's legislative district from one to two. For the election
of May 2007, Cagayan de Oro's voters would be
classified as belonging to either the first or the second
district, depending on their place of residence. The
constituents of each district would elect their own
representative to Congress as well as eight members
of the Sangguniang Panglungsod.
Section 1 of R.A. No. 9371 apportioned the
City's barangays as follows:
Legislative Districts - The lone legislative district of the
City of Cagayan De Oro is hereby apportioned to
commence in the next national elections after the
effectivity of this Act. Henceforth, barangays Bonbon,
Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan,
Baikingon, San Simon, Pagatpat, Canitoan, Balulang,
Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan,
Pigsag-an, Tumpagon, Bayanga, Mambuaya,
Dansulihon, Tignapoloan and Bisigan shall comprise
the first district while barangays Macabalan, Puntod,
Consolacion, Camaman-an, Nazareth, Macasandig,
Indahag, Lapasan, Gusa, Cugman, FS Catanico,
Tablon, Agusan, Puerto, Bugo, and Balubal and all
urban barangays from Barangay 1 to Barangay 40 shall
comprise the second district.5
On March 13, 2007, the COMELEC en
Banc promulgated Resolution No. 78376 implementing
R.A. No. 9371.
Petitioner Rogelio Bagabuyo filed the present petition
against the COMELEC on March 27, 2007.7 On 10 April
2008, the petitioner amended the petition to include the
following as respondents: Executive Secretary Eduardo
Ermita; the Secretary of the Department of Budget and
Management; the Chairman of the Commission on
Audit; the Mayor and the members of the Sangguniang
Panglungsod of Cagayan de Oro City; and its Board of
Canvassers.8
In asking for the nullification of R.A. No. 9371 and
Resolution No. 7837 on constitutional grounds, the
petitioner argued that the COMELEC cannot implement
R.A. No. 9371 without providing for the rules,
regulations and guidelines for the conduct of a
plebiscite which is indispensable for the division or
conversion of a local government unit. He prayed for the
issuance of an order directing the respondents to cease
and desist from implementing R.A. No. 9371 and
COMELEC Resolution No. 7837, and to revert instead
to COMELEC Resolution No. 7801 which provided for
a single legislative district for Cagayan de Oro.
Since the Court did not grant the petitioner's prayer for
a temporary restraining order or writ of preliminary
injunction, the May 14 National and Local Elections
proceeded according to R.A. No. 9371 and Resolution
No. 7837.
The respondent's Comment on the petition, filed
through the Office of the Solicitor General, argued that:
1) the petitioner did not respect the hierarchy of courts,
as the Regional Trial Court (RTC) is vested with
concurrent jurisdiction over cases assailing the
constitutionality of a statute; 2) R.A. No. 9371 merely
increased the representation of Cagayan de Oro City in
the House of Representatives and Sangguniang
Panglungsod pursuant to Section 5, Article VI of the
1987 Constitution; 3) the criteria established under
Section 10, Article X of the 1987 Constitution only apply
when there is a creation, division, merger, abolition or
substantial alteration of boundaries of a province, city,
municipality, or barangay; in this case, no such creation,
division, merger, abolition or alteration of boundaries of
a local government unit took place; and 4) R.A. No.
9371 did not bring about any change in Cagayan de
Oro's territory, population and income classification;
hence, no plebiscite is required.
The petitioner argued in his reply that: 1) pursuant to
the Court's ruling in Del Mar v. PAGCOR,9 the Court
may take cognizance of this petition if compelling
reasons, or the nature and importance of the issues
raised, warrant the immediate exercise of its jurisdiction;
2) Cagayan de Oro City's reapportionment under R.A.
No. 9371 falls within the meaning of creation, division,
merger, abolition or substantial alteration of boundaries
of cities under Section 10, Article X of the Constitution;
3) the creation, division, merger, abolition or substantial
alteration of boundaries of local government units
involve a common denominator - the material change in
the political and economic rights of the local
government units directly affected, as well as of the
people therein; 4) a voter's sovereign power to decide
on who should be elected as the entire city's
Congressman was arbitrarily reduced by at least one
half because the questioned law and resolution only
allowed him to vote and be voted for in the district
designated by the COMELEC; 5) a voter was also
arbitrarily denied his right to elect the Congressman and
the members of the city council for the other legislative
district, and 6) government funds were illegally
disbursed without prior approval by the sovereign
electorate of Cagayan De Oro City.10
THE ISSUES
The core issues, based on the petition and the parties'
memoranda, can be limited to the following contentious
points:
1) Did the petitioner violate the hierarchy of courts rule;
if so, should the instant petition be dismissed on this
ground?
2) Does R.A. No. 9371 merely provide for the legislative
reapportionment of Cagayan de Oro City, or does it
involve the division and conversion of a local
government unit?
3) Does R.A. No. 9371 violate the equality of
representation doctrine?
OUR RULING
Except for the issue of the hierarchy of courts rule,
we find the petition totally without merit.
The hierarchy of courts principle.
The Supreme Court has original jurisdiction over
petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.11 It was pursuant to this
original jurisdiction that the petitioner filed the present
petition.
While this jurisdiction is shared with the Court of
Appeals12 and the RTCs,13 a direct invocation of the
Supreme Court's jurisdiction is allowed only when there
are special and important reasons therefor, clearly and
especially set out in the petition. Reasons of practicality,
dictated by an increasingly overcrowded docket and the
need to prioritize in favor of matters within our exclusive
jurisdiction, justify the existence of this rule otherwise
known as the "principle of hierarchy of courts." More
generally stated, the principle requires that recourse
must first be made to the lower-ranked court exercising
concurrent jurisdiction with a higher court.14
Among the cases we have considered sufficiently
special and important to be exceptions to the rule, are
petitions for certiorari, prohibition, mandamus and quo
warranto against our nation's lawmakers when the
validity of their enactments is assailed.15 The present
petition is of this nature; its subject matter and the
nature of the issues raised - among them, whether
legislative reapportionment involves a division of
Cagayan de Oro City as a local government unit - are
reasons enough for considering it an exception to the
principle of hierarchy of courts. Additionally, the petition
assails as well a resolution of the COMELEC en banc
issued to implement the legislative apportionment that
R.A. No. 9371 decrees. As an action against a
COMELEC en banc resolution, the case falls under
Rule 64 of the Rules of Court that in turn requires a
review by this Court via a Rule 65 petition
for certiorari.16For these reasons, we do not see the
principle of hierarchy of courts to be a stumbling block
in our consideration of the present case.
The Plebiscite Requirement.
The petitioner insists that R.A. No. 9371 converts and
divides the City of Cagayan de Oro as a local
government unit, and does not merely provide for the
City's legislative apportionment. This argument
essentially proceeds from a misunderstanding of the
constitutional concepts of apportionment of legislative
districts and division of local government units.
Legislative apportionment is defined by Black's Law
Dictionary as the determination of the number of
representatives which a State, county or other
subdivision may send to a legislative body.17It is the
allocation of seats in a legislative body in proportion to
the population; the drawing of voting district lines so as
to equalize population and voting power among the
districts.18 Reapportionment, on the other hand, is
the realignment or change in legislative districts
brought about by changes in population and mandated
by the constitutional requirement of equality of
representation.19
Article VI (entitled Legislative Department) of the 1987
Constitution lays down the rules on legislative
apportionment under its Section 5 which provides:
Sec. 5(1). (1) The House of Representatives shall be
composed of not more than two hundred fifty members
unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on
the basis of a uniform and progressive ratio, and those
who, as provided by law, shall be elected through a
party-list system of registered national, regional and
sectoral parties or organizations.
xxx
(3) Each legislative district shall comprise, as far as
practicable, continuous, compact, and adjacent territory.
Each city with a population of at least two hundred fifty
thousand, or each province, shall have at least one
representative.
(4) Within three years following the return of every
census, the Congress shall make a reapportionment of
legislative districts based on the standards provided in
this section.
Separately from the legislative districts that legal
apportionment or reapportionment speaks of, are the
local government units (historically and generically
referred to as "municipal corporations") that the
Constitution itself classified into provinces, cities,
municipalities and barangays.20 In its strict and proper
sense, a municipality has been defined as "a body
politic and corporate constituted by the incorporation of
the inhabitants of a city or town for the purpose of local
government thereof."21 The creation, division, merger,
abolition or alteration of boundary of local government
units, i.e., of provinces, cities, municipalities,
and barangays, are covered by the Article on Local
Government (Article X). Section 10 of this Article
provides:
No province, city, municipality, or barangay may be
created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the
criteria established in the local government code and
subject to approval by a majority of the votes cast in a
plebiscite in the political unit directly affected.
Under both Article VI, Section 5, and Article X, Section
10 of the Constitution, the authority to act has been
vested in the Legislature. The Legislature undertakes
the apportionment and reapportionment of legislative
districts,22 and likewise acts on local government units
by setting the standards for their creation, division,
merger, abolition and alteration of boundaries and by
actually creating, dividing, merging, abolishing local
government units and altering their boundaries through
legislation. Other than this, not much commonality
exists between the two provisions since they are
inherently different although they interface and relate
with one another.
The concern that leaps from the text of Article VI,
Section 5 is political representation and the means to
make a legislative district sufficiently represented so
that the people can be effectively heard. As above
stated, the aim of legislative apportionment is "to
equalize population and voting power among
districts."23 Hence, emphasis is given to the number of
people represented; the uniform and progressive ratio
to be observed among the representative districts; and
accessibility and commonality of interests in terms of
each district being, as far as practicable, continuous,
compact and adjacent territory. In terms of the people
represented, every city with at least 250,000 people and
every province (irrespective of population) is entitled to
one representative. In this sense, legislative districts,
on the one hand, and provinces and cities, on the other,
relate and interface with each other. To ensure
continued adherence to the required standards of
apportionment, Section 5(4) specifically mandates
reapportionment as soon as the given standards are
met.
In contrast with the equal representation objective of
Article VI, Section 5, Article X, Section 10 expressly
speaks of how local government units may be "created,
divided, merged, abolished, or its boundary
substantially altered." Its concern is the
commencement, the termination, and the modification
of local government units' corporate existence and
territorial coverage; and it speaks of two specific
standards that must be observed in implementing this
concern, namely, the criteria established in the local
government code and the approval by a majority of the
votes cast in a plebiscite in the political units directly
affected. Under the Local Government Code (R.A. No.
7160) passed in 1991, the criteria of income, population
and land area are specified as verifiable indicators of
viability and capacity to provide services.24 The division
or merger of existing units must comply with the same
requirements (since a new local government unit will
come into being), provided that a division shall not
reduce the income, population, or land area of the unit
affected to less than the minimum requirement
prescribed in the Code.25
A pronounced distinction between Article VI, Section 5
and, Article X, Section 10 is on the requirement of a
plebiscite. The Constitution and the Local Government
Code expressly require a plebiscite to carry out any
creation, division, merger, abolition or alteration of
boundary of a local government unit.26 In contrast, no
plebiscite requirement exists under the apportionment
or reapportionment provision. In Tobias v. Abalos,27 a
case that arose from the division of the congressional
district formerly covering San Juan and Mandaluyong
into separate districts, we confirmed this distinction and
the fact that no plebiscite is needed in a legislative
reapportionment. The plebiscite issue came up
because one was ordered and held for Mandaluyong in
the course of its conversion into a highly urbanized city,
while none was held for San Juan. In explaining why
this happened, the Court ruled that no plebiscite was
necessary for San Juan because the objective of the
plebiscite was the conversion of Mandaluyong into a
highly urbanized city as required by Article X, Section
10 the Local Government Code; the creation of a new
legislative district only followed as a consequence. In
other words, the apportionment alone and by itself did
not call for a plebiscite, so that none was needed for
San Juan where only a reapportionment took place.
The need for a plebiscite under Article X, Section 10
and the lack of requirement for one under Article VI,
Section 5 can best be appreciated by a consideration of
the historical roots of these two provisions, the nature
of the concepts they embody as heretofore discussed,
and their areas of application.
A Bit of History.
In Macias v. COMELEC,28 we first jurisprudentially
acknowledged the American roots of our apportionment
provision, noting its roots from the Fourteenth
Amendment29 of the U.S. Constitution and from the
constitutions of some American states. The Philippine
Organic Act of 1902 created the Philippine
Assembly,30 the body that acted as the lower house of
the bicameral legislature under the Americans, with the
Philippine Commission acting as the upper house.
While the members of the Philippine Commission were
appointed by the U.S. President with the conformity of
the U.S. Senate, the members of the Philippine
Assembly were elected by representative districts
previously delineated under the Philippine Organic Act
of 1902 pursuant to the mandate to apportion the seats
of the Philippine Assembly among the provinces as
nearly as practicable according to population. Thus,
legislative apportionment first started in our country.
The Jones Law or the Philippine Autonomy Act of 1916
maintained the apportionment provision, dividing the
country into 12 senate districts and 90 representative
districts electing one delegate each to the House of
Representatives. Section 16 of the Act specifically
vested the Philippine Legislature with the authority to
redistrict the Philippine Islands.
Under the 1935 Constitution, Article VI, Section 5
retained the concept of legislative apportionment
together with "district" as the basic unit of
apportionment; the concern was "equality of
representation . . . as an essential feature of republican
institutions" as expressed in the leading case of Macias
v. COMELEC.31 The case ruled that inequality of
representation is a justiciable, not a political issue,
which ruling was reiterated in Montejo v.
COMELEC. Notably, no issue regarding the holding of
32
a plebiscite ever came up in these cases and the others
that followed, as no plebiscite was required.
Article VIII, Section 2 of the 1973 Constitution retained
the concept of equal representation "in accordance with
the number of their respective inhabitants and on the
basis of a uniform and progressive ratio" with each
district being, as far as practicable, contiguous,
compact and adjacent territory. This formulation was
essentially carried over to the 1987 Constitution,
distinguished only from the previous one by the
presence of party-list representatives. In neither
Constitution was a plebiscite required.
The need for a plebiscite in the creation, division,
merger, or abolition of local government units was not
constitutionally enshrined until the 1973 Constitution.
However, as early as 1959, R.A. No. 226433 required, in
the creation of barrios by Provincial Boards, that the
creation and definition of boundaries be "upon petition
of a majority of the voters in the areas affected." In 1961,
the Charter of the City of Caloocan (R.A. No. 3278)
carried this further by requiring that the "Act shall take
effect after a majority of voters of the Municipality of
Caloocan vote in favor of the conversion of their
municipality into a city in a plebiscite." This was followed
up to 1972 by other legislative enactments requiring a
plebiscite as a condition for the creation and conversion
of local government units as well as the transfer
of sitios from one legislative unit to another.34 In 1973,
the plebiscite requirement was accorded constitutional
status.
Under these separate historical tracks, it can be seen
that the holding of a plebiscite was never a requirement
in legislative apportionment or reapportionment. After it
became constitutionally entrenched, a plebiscite was
also always identified with the creation, division, merger,
abolition and alteration of boundaries of local
government units, never with the concept of legislative
apportionment.
Nature and Areas of Application.
The legislative district that Article VI, Section 5
speaks of may, in a sense, be called a political unit
because it is the basis for the election of a member of
the House of Representatives and members of the local
legislative body. It is not, however, a political
subdivision through which functions of government are
carried out. It can more appropriately be described as
a representative unit that may or may not encompass
the whole of a city or a province, but unlike the latter, it
is not a corporate unit. Not being a corporate unit, a
district does not act for and in behalf of the people
comprising the district; it merely delineates the areas
occupied by the people who will choose a
representative in their national affairs. Unlike a province,
which has a governor; a city or a municipality, which has
a mayor; and a barangay, which has a punong
barangay, a district does not have its own chief
executive. The role of the congressman that it elects is
to ensure that the voice of the people of the district is
heard in Congress, not to oversee the affairs of the
legislative district. Not being a corporate unit also
signifies that it has no legal personality that must be
created or dissolved and has no capacity to act. Hence,
there is no need for any plebiscite in the creation,
dissolution or any other similar action on a legislative
district.
The local government units, on the other hand, are
political and corporate units. They are the territorial and
political subdivisions of the state.35 They possess legal
personality on the authority of the Constitution and by
action of the Legislature. The Constitution defines them
as entities that Congress can, by law, create, divide,
abolish, merge; or whose boundaries can be altered
based on standards again established by both the
Constitution and the Legislature.36 A local government
unit's corporate existence begins upon the election and
qualification of its chief executive and a majority of the
members of its Sanggunian.37
As a political subdivision, a local government unit is an
"instrumentality of the state in carrying out the functions
of government."38 As a corporate entity with a distinct
and separate juridical personality from the State, it
exercises special functions for the sole benefit of its
constituents. It acts as "an agency of the community in
the administration of local affairs"39 and the mediums
through which the people act in their corporate capacity
on local concerns.40 In light of these roles, the
Constitution saw it fit to expressly secure the consent of
the people affected by the creation, division, merger,
abolition or alteration of boundaries of local government
units through a plebiscite.
These considerations clearly show the distinctions
between a legislative apportionment or
reapportionment and the division of a local government
unit. Historically and by its intrinsic nature, a legislative
apportionment does not mean, and does not even imply,
a division of a local government unit where the
apportionment takes place. Thus, the plebiscite
requirement that applies to the division of a province,
city, municipality or barangay under the Local
Government Code should not apply to and be a
requisite for the validity of a legislative apportionment
or reapportionment.
R.A. No. 9371 and COMELEC Res. No. 7837
R.A. No. 9371 is, on its face, purely and simply a
reapportionment legislation passed in accordance with
the authority granted to Congress under Article VI,
Section 5(4) of the Constitution. Its core provision -
Section 1 - provides:
SECTION 1. Legislative Districts. - The lone legislative
district of the City of Cagayan de Oro is hereby
apportioned to commence in the next national elections
after the effectivity of this Act. Henceforth, barangays
Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua,
Iponan, Baikingon, San Simon, Pagatpat, Canitoan,
Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao,
Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya,
Dansulihon, Tignapoloan and Bisigan shall comprise
the first district while barangays Macabalan, Puntod,
Consolacion, Camaman-an, Nazareth, Macansandig,
Indahag, Lapasan, Gusa, Cugman, FS Catanico,
Tablon, Agusan, Puerto, Bugo and Balubal and all
urban barangays from Barangay 1 to Barangay 40 shall
comprise the second district.
Under these wordings, no division of Cagayan de Oro
City as a political and corporate entity takes place or is
mandated. Cagayan de Oro City politically remains a
single unit and its administration is not divided along
territorial lines. Its territory remains completely whole
and intact; there is only the addition of another
legislative district and the delineation of the city into two
districts for purposes of representation in the House of
Representatives. Thus, Article X, Section 10 of the
Constitution does not come into play and no plebiscite
is necessary to validly apportion Cagayan de Oro City
into two districts.
Admittedly, the legislative reapportionment carries
effects beyond the creation of another congressional
district in the city by providing, as reflected in
COMELEC Resolution No. 7837, for additional
Sangguniang Panglunsod seats to be voted for along
the lines of the congressional apportionment made. The
effect on the Sangguniang Panglunsod, however, is not
directly traceable to R.A. No. 9371 but to another law -
R.A. No. 663641 - whose Section 3 provides:
SECTION 3. Other Cities. - The provision of any law to
the contrary notwithstanding the City of Cebu, City of
Davao, and any other city with more than one
representative district shall have eight (8) councilors for
each district who shall be residents thereof to be
elected by the qualified voters therein, provided that the
cities of Cagayan de Oro, Zamboanga, Bacolod, Iloilo
and other cities comprising a representative district
shall have twelve (12) councilors each and all other
cities shall have ten (10) councilors each to be elected
at large by the qualified voters of the said cities:
Provided, That in no case shall the present number of
councilors according to their charters be reduced.
However, neither does this law have the effect of
dividing the City of Cagayan de Oro into two political
and corporate units and territories. Rather than divide
the city either territorially or as a corporate entity, the
effect is merely to enhance voter representation by
giving each city voter more and greater say, both in
Congress and in the Sangguniang Panglunsod.
To illustrate this effect, before the reapportionment,
Cagayan de Oro had only one congressman and 12 city
council members citywide for its population of
approximately 500,000.42 By having two legislative
districts, each of them with one congressman, Cagayan
de Oro now effectively has two congressmen, each one
representing 250,000 of the city's population. In terms
of services for city residents, this easily means better
access to their congressman since each one now
services only 250,000 constituents as against the
500,000 he used to represent. The same goes true for
the Sangguniang Panglungsod with its ranks increased
from 12 to 16 since each legislative district now has 8
councilors. In representation terms, the fewer
constituents represented translate to a greater voice for
each individual city resident in Congress and in
the Sanggunian; each congressman and each
councilor represents both a smaller area and fewer
constituents whose fewer numbers are now
concentrated in each representative. The City, for its
part, now has twice the number of congressmen
speaking for it and voting in the halls of Congress. Since
the total number of congressmen in the country has not
increased to the point of doubling its numbers, the
presence of two congressman (instead of one) from the
same city cannot but be a quantitative and proportional
improvement in the representation of Cagayan de Oro
City in Congress.
Equality of representation.
The petitioner argues that the distribution of the
legislative districts is unequal. District 1 has only 93,719
registered voters while District 2 has 127,071. District 1
is composed mostly of rural barangays while District 2
is composed mostly of urban barangays.43 Thus, R.A.
No. 9371 violates the principle of equality of
representation.
A clarification must be made. The law clearly provides
that the basis for districting shall be the number of the
inhabitants of a city or a province, not the number of
registered voters therein. We settled this very same
question in Herrera v. COMELEC44 when we
interpreted a provision in R.A. No. 7166 and COMELEC
Resolution No. 2313 that applied to the Province of
Guimaras. We categorically ruled that the basis for
districting is the number of inhabitants of the Province
of Guimaras by municipality based on the official 1995
Census of Population as certified to by Tomas P. Africa,
Administrator of the National Statistics Office.
The petitioner, unfortunately, did not provide
information about the actual population of Cagayan de
Oro City. However, we take judicial notice of the August
2007 census of the National Statistics Office which
shows that barangays comprising Cagayan de Oro's
first district have a total population of 254,644, while the
second district has 299,322 residents. Undeniably,
these figures show a disparity in the population sizes of
the districts.45 The Constitution, however, does not
require mathematical exactitude or rigid equality as a
standard in gauging equality of representation.46 In fact,
for cities, all it asks is that "each city with a population
of at least two hundred fifty thousand shall have one
representative," while ensuring representation for every
province regardless of the size of its population. To
ensure quality representation through commonality of
interests and ease of access by the representative to
the constituents, all that the Constitution requires is that
every legislative district should comprise, as far as
practicable, contiguous, compact, and adjacent territory.
Thus, the Constitution leaves the local government
units as they are found and does not require their
division, merger or transfer to satisfy the numerical
standard it imposes. Its requirements are satisfied
despite some numerical disparity if the units are
contiguous, compact and adjacent as far as practicable.
The petitioner's contention that there is a resulting
inequality in the division of Cagayan de Oro City into
two districts because the barangays in the first district
are mostly rural barangays while the second district is
mostly urban, is largely unsubstantiated. But even if
backed up by proper proof, we cannot question the
division on the basis of the difference in the barangays'
levels of development or developmental focus as these
are not part of the constitutional standards for legislative
apportionment or reapportionment. What the
components of the two districts of Cagayan de Oro
would be is a matter for the lawmakers to determine as
a matter of policy. In the absence of any grave abuse of
discretion or violation of the established legal
parameters, this Court cannot intrude into the wisdom
of these policies.47
WHEREFORE, we hereby DISMISS the petition for
lack of merit. Costs against the petitioner.
SO ORDERED.
G.R No. 188078 March 15, 2010
VICTORINO B. ALDABA, CARLO JOLETTE S.
FAJARDO, JULIO G. MORADA, and MINERVA
ALDABA MORADA, Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.
RESOLUTION
CARPIO, J.:
This resolves the motion for reconsideration of
respondent Commission on Elections (COMELEC) of
the Decision dated 25 January 2010.1
The COMELEC grounds its motion on the singular
reason, already considered and rejected in the Decision,
that Congress’ reliance on the Certification of Alberto N.
Miranda (Miranda), Region III Director, National
Statistics Office (NSO), projecting Malolos City’s
population in 2010, is non-justiciable. The COMELEC
also calls attention to the other sources of Malolos
City’s population indicators as of 2007 (2007 Census of
Population – PMS 3 – Progress Enumeration Report2)
and as of 2008 (Certification of the City of Malolos’
Water District, dated 31 July 2008,3 and Certification of
the Liga ng Barangay, dated 22 August 20084) which
Congress allegedly used in enacting Republic Act No.
9591 (RA 9591). The COMELEC extends its non-
justiciability argument to these materials.
We find no reason to grant the motion.
First. It will not do for the COMELEC to insist that the
reliability and authoritativeness of the population
indicators Congress used in enacting RA 9591 are non-
justiciable. If laws creating legislative districts are
unquestionably within the ambit of this Court’s judicial
review power,5 then there is more reason to hold
justiciable subsidiary questions impacting on their
constitutionality, such as their compliance with a
specific constitutional limitation under Section 5(3),
Article VI of the 1987 Constitution that only cities with at
least 250,000 constituents are entitled to representation
in Congress. To fulfill this obligation, the Court, of
necessity, must inquire into the authoritativeness and
reliability of the population indicators Congress used to
comply with the constitutional limitation. Thus, nearly
five decades ago, we already rejected claims of non-
justiciability of an apportionment law alleged to violate
the constitutional requirement of proportional
representation:
It is argued in the motion to reconsider, that since
Republic Act 3040 improves existing conditions, this
Court could perhaps, in the exercise of judicial
statesmanship, consider the question involved as
purely political and therefore non-justiciable. The
overwhelming weight of authority is that district
apportionment laws are subject to review by the courts[:]
The constitutionality of a legislative apportionment act
is a judicial question, and not one which the court
cannot consider on the ground that it is a political
question.
It is well settled that the passage of apportionment acts
is not so exclusively within the political power of the
legislature as to preclude a court from inquiring into
their constitutionality when the question is properly
brought before it.
It may be added in this connection, that the mere impact
of the suit upon the political situation does not render it
political instead of judicial.
The alleged circumstance that this statute improves the
present set-up constitutes no excuse for approving a
transgression of constitutional limitations, because the
end does not justify the means. Furthermore, there is
no reason to doubt that, aware of the existing inequality
of representation, and impelled by its sense of duty,
Congress will opportunely approve remedial legislation
in accord with the precepts of the
Constitution.6 (Emphasis supplied; internal citations
omitted)
To deny the Court the exercise of its judicial review
power over RA 9591 is to contend that this Court has
no power "to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or
instrumentality of the Government," a duty mandated
under Section 1, Article VIII of the Constitution. Indeed,
if we subscribe to the COMELEC’s theory, this Court
would be reduced to rubberstamping laws creating
legislative districts no matter how unreliable and non-
authoritative the population indicators Congress used
to justify their creation. There can be no surer way to
render meaningless the limitation in Section 5(3),
Article VI of the 1987 Constitution.7
Second. Under Executive Order No. 135 (EO 135), the
population indicators Congress used to measure
Malolos City’s compliance with the constitutional
limitation are unreliable and non-authoritative. On
Miranda’s Certification, (that the "projected population
of the [City] of Malolos will be 254,030 by the year 2010
using the population growth rate of 3.78[%] between
1995 and 2000"), this fell short of EO 135’s
requirements that (a) for intercensal years, the
certification should be based on a set of demographic
projections and estimates declared official by the
National Statistical and Coordination Board (NSCB); (b)
certifications on intercensal population estimates will be
as of the middle of every year; and (c) certifications
based on projections or estimates must be issued by
the NSO Administrator or his designated certifying
officer. Further, using Miranda’s own growth rate
assumption of 3.78%, Malolos City’s population as of 1
August 2010 will only be 249,333, below the
constitutional threshold of 250,000 (using as base
Malolos City’s population as of 1 August 2007 which is
223,069). That Miranda issued his Certification "by
authority of the NSO administrator" does not make the
document reliable as it neither makes Miranda the NSO
Administrator’s designated certifying officer nor cures
the Certification of its fatal defects for failing to use
demographic projections and estimates declared
official by the NSCB or make the projection as of the
middle of 2010. 1avvphi1
Nor are the 2007 Census of Population – PMS 3 –
Progress Enumeration Report, the Certification of the
City of Malolos’ Water District, dated 31 July 2008 and
the Certification of the Liga ng Barangay, dated 22
August 2008, reliable because none of them qualifies
as authoritative population indicator under EO 135. The
2007 Census of Population – PMS 3 – Progress
Enumeration Report merely contains preliminary data
on the population census of Bulacan which were
subsequently adjusted to reflect actual population as
indicated in the 2007 Census results (showing Malolos
City’s population at 223,069). The COMELEC, through
the Office of the Solicitor General (OSG), adopts
Malolos City’s claim that the 2007 census for Malolos
City was "sloped to make it appear that come Year 2010,
the population count for Malolos would still fall short of
the constitutional requirement."8 This unbecoming
attack by the government’s chief counsel on the
integrity of the processes of the government’s census
authority has no place in our judicial system. The OSG
ought to know that absent convincing proof of so-called
data "sloping," the NSO enjoys the presumption of the
regularity in the performance of its functions.
The Certification of the City of Malolos’ Water District
fares no better. EO 135 excludes from its ambit
certifications from a public utility gathered incidentally in
the course of pursuing its business. To elevate the
water district’s so-called population census to the level
of credibility NSO certifications enjoy is to render
useless the existence of NSO. This will allow population
data incidentally gathered by electric, telephone,
sewage, and other utilities to enter into legislative
processes even though these private entities are not in
the business of generating statistical data and thus lack
the scientific training, experience and competence to
handle, collate and process them.
Similarly, the Certification of the Liga ng Barangay is not
authoritative because much like the Malolos City Water
District, the Liga ng Barangay is not authorized to
conduct population census, much less during off-
census years. The non-NSO entities EO 135 authorizes
to conduct population census are local government
units (that is, province, city, municipality or barangay)
subject to the prior approval of the NSCB and
under the technical supervision of the NSO from
planning to data processing.9
By presenting these alternative population indicators
with their widely divergent population figures,10 the
COMELEC unwittingly highlighted the danger of relying
on non-NSO authorized certifications. EO 135’s
stringent standards ensuring reliability of population
census cannot be diluted as these data lie at the core
of crucial government decisions and, in this case, the
legislative function of enforcing the constitutional
mandate of creating congressional districts in cities with
at least 250,000 constituents.
There can be no doubt on the applicability of EO 135 to
test the constitutionality of RA 9591. The COMELEC
invoked EO 135 to convince the Court of the credibility
and authoritativeness of Miranda’s certificate.11 It is
hardly alien for the Court to adopt standards contained
in a parallel statute to fill gaps in the law in the absence
of an express prohibition.12 Indeed, one is hard-pressed
to find any distinction, statistically speaking, on the
reliability of an NSO certification of a city’s population
for purposes of creating its legislative district and for
purposes of converting it to a highly-urbanized or an
independent component city.13 Congress itself confirms
the wisdom and relevance of EO 135’s paradigm of
privileging NSO certifications by mandating that
compliance with the population requirement in the
creation and conversion of local government units shall
be proved exclusively by an NSO
certification.14 Unquestionably, representation in
Congress is no less important than the creation of local
government units in enhancing our democratic
institutions, thus both processes should be subject to
the same stringent standards.
Third. Malolos City is entitled to representation in
Congress only if, before the 10 May 2010 elections, it
breaches the 250,000 population mark following the
mandate in Section 3 of the Ordinance appended to the
1987 Constitution that "any city whose population may
hereafter increase to more than two hundred fifty
thousand shall be entitled in the immediately following
election to at least one Member." COMELEC neither
alleged nor proved that Malolos City is in compliance
with Section 3 of the Ordinance.
Fourth. Aside from failing to comply with Section 5(3),
Article VI of the Constitution on the population
requirement, the creation by RA 9591 of a legislative
district for Malolos City, carving the city from the former
First Legislative District, leaves the town of Bulacan
isolated from the rest of the geographic mass of that
district.15 This contravenes the requirement in Section
5(3), Article VI that each legislative district shall
"comprise, as far as practicable, contiguous, compact,
and adjacent territory." It is no argument to say, as the
OSG does, that it was impracticable for Congress to
create a district with contiguous, compact, and adjacent
territory because Malolos city lies at the center of the
First Legislative District. The geographic lay-out of the
First Legislative District is not an insuperable condition
making compliance with Section 5(3) impracticable. To
adhere to the constitutional mandate, and thus maintain
fidelity to its purpose of ensuring efficient
representation, the practicable alternative for Congress
was to include the municipality of Bulacan in Malolos
City’s legislative district. Although unorthodox, the
resulting contiguous and compact district fulfills the
constitutional requirements of geographic unity and
population floor, ensuring efficient representation of the
minimum mass of constituents.

WHEREFORE, the Supplemental Motion for

Reconsideration of respondent Commission on
Elections dated 22 February 2010 is DENIED WITH
FINALITY. Let no further pleadings be allowed.

SO ORDERED.