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.
Separate Opinion
QUIASON, J, concurring:
Recall is a process for the removal of an official during his term by a vote of a specified number of citizens at an election called for such purpose (Wallaca v. Tripp, 358 Mich. 668, 101 NW 2d 312).
The process may be provided for in a constitution or in the absence of constitutional empowerment, in ordinary statutes. In the latter case, legislature enacts a system for recall in the exercise of its general control of the removal of public officer (In re Bower, 41 III. 777, 242 No. 2D, 252, Dunhan v. Ardery, 43 OKI 619, 142 p. 331).
Recall statutes enacted without express constitutional mandate have been upheld against claims (a) that they are obnoxious to a republican form of government (Dunhan v. Ardery, supra) or (b) that they constitute a denial of due process or a bill of attainder (State ex rel Topping v. Houston, 94 Neb. 445, 643 NW 796, Roberts v. Brown, 73 Tenn App. 567, 310 SW 2d. 197).
The procedure in the recall of an official may be prescribed in the constitution itself or in statutory provisions relating to the subject. In passing on the construction of recall statutes, the courts have enforced them according to their terms and have disclaimed all concern as to their wisdom and policy (State ex rel Clark v. Harris, 74 Or 573, 144 p. 109).
The 1987 Constitution does not prescribe the procedure in the recall of elective officials.
The intent is clear that the 1987 Constitution leaves it to Congress to provide the recall mechanism without any pre-ordained restrictions. The broad powers of Congress in pescribing the procedure for recall include the determination as to the number of electors needed to initiate the recall, the method of voting of the electors, the time and place of the voting and whether the process includes the election of the successor of the recalled official.
In the Local Government Code of 1991 (R.A. 7160), Congress adopted an alternative procedure for initiating the recall and made it as a mere stage of the recall process.
Congress also deigned it wise to give the electorate a chance to participate in the exercise twice: first, in the initiation of the recall; and secondly, in the election of the person to occupy the office subject of the recall. This is in contrast with the first recall statute in the Philippines, the Festin Law (Com. Act No. 560) where the participation of the electorate were denied the opportunity to vote for the retention of the official subject of the recall.
In a sense, the members of the PRA can be considered as constituting a segment of the electorate because they are all registered voters of the province.ℒαwρhi৷ If they constitute less than one per cent of the voters in the province, that miniscule number goes to the policy, not the validity of the law and the remedy to correct such a flaw is left with t he legislature, not with the judiciary.
Separate Opinion
VITUG, J., concurring:
I fully concur with the disquisition made by Mr. Justice Reynato S. Puno, and I agree that it is not within the province of the courts to question the wisdom of, let alone supplant, legislative judgments laid down by Congress to the extent of its constitutional authority and mandate.
It may not be amiss, however, to caution against any idea of omnipotence in wielding the "power of recall" conferred to the "Preparatory Recall Assembly." Clearly implicit in any grant of power, like any other right, is an assumption of a correlative duty to exercise it responsibly. When it, therefore, becomes all too evident that there has been an abuse of that authority, appropriate judicial recourse to, and corrective relief by, this Court will not be denied.
Separate Opinion
DAVIDE, JR., J., dissenting:
The paramount issue in this case is the constitutionality of that part of Section 70 of the Local Government Code of 1991 (R.A. 7160) which grants to a body known as the preparatory recall assembly (PRA) the power to initiate recall proceedings.1 At the provincial level, as in this case, the PRA is composed of all mayors, vice-mayors and sanggunian members of the municipalities and component cities in the province.
The issue can only be resolved by inquiring into the nature or essence of recall. The system of recall was adopted for the first time in our jurisdiction in the 1973 Constitution. Section 2 of Article XI thereof provided:
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. . . .
This section was incorporated, with some modifications, in the 1987 Constitution to emphasize the thrust on decentralization and to provide for a mechanism of initiative and referendum. Section 3 of Article X thereof provides as follows:
Sec. 3 The Congress shall 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, . . .
Recall is of American origin. In 1951, the constitutions of twelve (12) States of the American union contained provisions on recall. Oregon was the first to adopt it in 1908, although it had been part of the charter of the city of Los Angeles five years earlier.2
Wallace vs. Tripp3 considers it a fundamental right reserved to the people of the state by the Constitution, and Bernzen vs. City of Boulder4 declares it, like the power of initiative and referendum, to be a fundamental right of citizens within a representative democracy. For its definition, Wallace quotes Websters's New International Dictionary, 2nd ed., to wit:
The right or procedure by which a public official, commonly a legislative or executive official, may be removed from office, before the end of his term of office, by a vote of the people to be taken on the filing of a petition signed by the required number of qualified voters (commonly 25%).
The principle underlying recall is stated in Dunham vs. Ardery5 as follows:
We understand that the principle underlying the recall of public officers means that the people may have an effective and speed remedy to remove an official who is not giving satisfaction — one who they do not want to continue in office, regardless of whether or not he is discharging his full duty to the best of his ability and as his conscience dictates. If the policies pursued do not meet the approval of a majority of the people, it is the underlying principle of the recall doctrine to permit them to expeditiously recall the official, without form or ceremony, as provided for in the charter.
Since recall is constitutionally mandated in our jurisdiction, it goes without saying that it is a power reserved to the people to be exercised by the registered voters.1äwphï1.ñët It was for this reason that, to implement the power of recall under the 1973 Constitution, Batas Pambansa Blg. 337 (the old Local Government Code) provided in Section 54 thereof as follows:
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 a least twenty-five percent of the total number of registered voters in the local government unit concerned based on the local sought to be recalled was elected.
To implement the 1987 Constitution provision on recall, the Local Government Code of 1991 likewise expressly provides in Section 69 as follows:
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 belongings.
Indubitably then, the power of recall is exclusively vested in the electorate or, more specifically, in the registered voters of the local government unit concerned. In the United States, from where we patterned our system of recall, the initiation of the recall proceeding is always done by a certain percentage of the voters. Thus:
. . . The required percentage ranges from ten in Kansas to thirty in North Dakota, but twenty-five is by far the most common.6
In both B.P. Blg. 337 and the Local Government Code of 1991, our Legislature fixed it at 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.7 It follows then that said power cannot be shared with any other group of persons or officials. Any such sharing would impair or negate the exclusive character of the power. It is indivisible. Its essential, nay indispensable, components are the initiation and the election, both of which are substantive in character. By reason of its exclusive and the indivisible character, both components must be exercised by the electorate alone. The reason why the initiation phase can and must be done only by the electorate is not difficult to understand. If it can also be done by another body, such as the PRA in this case, the exclusiveness or indivisibility of the power is necessarily impaired or negated. In such a case, the electorate is by passed and the resulting recall petition or resolution can by no means be an authentic, free, and voluntary act of the electorate, which characteristics are indicia of the exercise of a power. The power to initiate, being a component of the power or recall, necessarily includes the power not to initiate. The power to initiate becomes meaningless if another body is authorized to do it for the electorate. Worse, since the second component of the power of recall, i.e., the recall election, does not come into play without the recall petition, it follows that where the petition is not done through the initiative of the electorate because the latter chooses not to exercise its power to recall or finds no reason therefor, that election becomes, as to the electorate would in effect be compelled to participate in a political exercise it neither called for nor decided to have.
Hence, the fullness of the power of recall precludes the delegation of the corresponding authority to initiate it to any entity other than the electorate, especially where the delegation unduly infringes upon and impairs such power as in this case.
I might add that since Congress decided to retain the 25% requirement for the traditional method of initiating recall — which is the method in full accord and perfect harmony with the true essence of recall — the provision for an alternative method, i.e., recall resolution by a mere majority of the PRA, is subtly designed to negate, if not altogether defeat, the power of the electorate and to substitute the will of a very small group for the will of the electorate. Admittedly, it is extremely difficult to meet the 25% requirement. On the other hand, it is far too easy, and at times politically convenient and expedient, to get a majority of the members of the PRA to initiate a recall proceeding. The choice then is all too obvious. Indeed, this is the clear message of the admission by former Congressman Wilfredo Cainglet that the 25% requirement rendered the traditional method ineffective thus necessitating the creation of an alternative method. But the alternative method besmirches the sanctity of the recall process. If 25% was found ineffective, then the remedy should have been to reduce it to, say, 15% or 20%.
The conclusion then is inevitable that the provision on the preparatory recall assembly in Section 70 of the Local Government Code of 1991 is unconstitutional because it amounts to an undue delegation of the power of recall.
I vote to grant the petition.
Melo, J., concur.
Footnotes
1 During the oral arguments in this case, former Senator Aquilino Pimentel, Jr., appearing as amicus curiae, disclosed that the provision on the preparatory recall assembly was not embodied in the Senate version of the Code but was introduced by the House of Representatives.
2 The eleven other States are Arizona, California, Colorado, Idaho, Kansas, Louisiana, Michigan, Nevada, North Dakota, Washington, and Wisconsin. See MACDONALD, A.F., American State Government and Administration, 4th ed., 1951, 153.
3 355 Mich. 668 101 N.W. 2d 312.
4 186 Colo, 81, 525 P.2d 416.
5 43 Okl. 619, 143 P. 331.
6 MACDONALD, supra., 153.
7 Paragraph 2, Section 54, B.P. Blg. 337 and paragraph (d), Section 70, R.A. No. 7160.
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