336 Phil. 239
HERMOSISIMA, JR., J.:
“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.lexIn 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:
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.
Section 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 x x x.”[9]
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.’‘Sec. 59. Supervision by the Commission on Elections. - The Commission on Elections shall conduct and supervise the process of and election on recall x x x and, in pursuance thereof, promulgate the necessary rules and regulations.’”[12]
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:
“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.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.
x x x
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. x x x 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]
“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.‘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 x x x’
Recall as a mode of removal of elective local officials made its maiden appearance in section 2 of Article XI entitled Local Government, viz:
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 x x x.Section 69(d) of the Local Government Code of 1991 expressly provides that “recall of any elective x x x municipal x x x 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 represetantive of the official sought to be recalled, and in public place in the x x x municipality x x x”.[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.
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 Articles XIII expressly recognized the Role and Rights of People’s Organizations x x x.
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 x x x. 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]
“[t]the only logical reasons 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 parting 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 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 small percentage of disenchanted electors.”[20]Along the same lines, the Supreme Court of Colorado held in the case of Bernzen v. City of Boulder[21] that:
“[t]he framers, by requiring that a recall petition contain the signatures of at least 25% of all votes cast in the last election for all candidates for the position which the person sought to be recalled occupies, assured that a recall election will not be held in response to the wishes of a small and unrepresentative minority. However, once at least 25% of the electorate have expressed their dissatisfaction, the constitution reserves the recall power to the will of the electorate.”[22]And in the case of Wallace v. Tripp[23], 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 xxx. 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:‘xxx 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.’”[24]