G.R. No. 111511 October 5, 1993 recall as unconstitutional.

The challenge cannot

succeed.
ENRIQUE T. GARCIA, ET AL., petitioners,
We shall first unfurl the facts.
vs.
Petitioner Enrique T. Garcia was elected
COMMISSION ON ELECTIONS and LUCILA governor of the province of Bataan in the May 11,
PAYUMO, ET AL., respondents. 1992 elections. In the early evening of July 1993,
some mayors, vice-mayors and members of the
Alfonso M. Cruz Law Offices for petitioners. Sangguniang Bayan of the twelve (12)
municipalities of the province met at the National
Romulo C. Felizmeña, Crisostomo Banzon and Power Corporation compound in Bagac, Bataan.
Horacio Apostol for private respondents. At about 12:30 A.M of the following day, July 2,
1993, they proceeded to the Bagac town plaza
PUNO, J.: where they constituted themselves into a
Preparatory Recall Assembly to initiate the recall
The EDSA revolution of 1986 restored the reality election of petitioner Garcia. The mayor of
that the people's might is not a myth. The 1987 Mariveles, Honorable Oscar, de los Reyes, and
Constitution then included people power as an the mayor of Dinalupihan, the Honorable Lucila
article of faith and Congress was mandated to p Payumo, were chosen as Presiding Officer and
ass laws for its effective exercise. The Local Secretary of the Assembly, respectively.
Government Code of 1991 was enacted Thereafter, the Vice-Mayor of Limay, the
providing for two (2) modes of initiating the recall Honorable Ruben Roque, was recognized and he
from office of local elective officials who appear to moved that a resolution be passed for the recall
have lost the confidence of the electorate. One of of the petitioner on the ground of "loss of
these modes is recall through the initiative of a confidence." The motion was "unanimously
1

preparatory recall assembly. In the case at seconded." The resolution states:

2

bench, petitioners assail this mode of initiatory

RESOLUTION NO. 1
Whereas, the majority of all the members of the Resolved further, that copy of this resolution be
Preparatory Recall Assembly in the Province of furnished the Honorable Commission on
Bataan have voluntarily constituted themselves Elections, Manila and the Provincial Election
for the purpose of the recall of the incumbent Supervisor, Balanga, Bataan.
provincial governor of the province of Bataan,
Honorable Enrique T. Garcia pursuant to the One hundred forty-six (146) names appeared in
provisions of Section 70, paragraphs (a), (b) and Resolution No. 1 but only eighty (80) carried the
(c) of Republic Act 7160, otherwise known as the signatures of the members of the PRA. Of the
Local Government Code of 1991; eighty (80) signatures, only seventy-four (74)
were found genuine. The PRAC of the province
3

Whereas, the total number of all the members of had a membership of one hundred forty-four
the Preparatory Recall Assembly in the province (144) and its majority was seventy-three (73).
4

of Bataan is One Hundred and Forty- Six (146)

composed of all mayors, vice-mayors and On July 7, 1993, petitioners filed with the
members of the Sangguniang Bayan of all the 12 respondent COMELEC a petition to deny due
towns of the province of Bataan; course to said Resolution No. 1. Petitioners
alleged that the PRAC failed to comply with the
Whereas, the majority of all the members of the "substantive and procedural requirement" laid
Preparatory Recall Assembly, after a serious and down in Section 70 of R.A. 7160, otherwise
careful deliberation have decided to adopt this known as the Local Government Code of 1991.
resolution for the recall of the incumbent In a per curiam Resolution promulgated August
provincial governor Garcia for loss of confidence; 31, 1993, the respondent COMELEC dismissed
the petition and scheduled the recall elections for
Now, therefore, be it resolved, as it is hereby the position of Governor of Bataan on October 11
resolved that having lost confidence on the , 1993. Petitioners then filed with Us a petition
incumbent governor of Bataan, Enrique T. Garcia, for certiorari and prohibition with writ of
recall proceedings be immediately initiated preliminary injunction to annul the said
against him; Resolution of the respondent COMELEC on
various grounds. They urged that section 70 of
R.A. 7160 allowing recall through the initiative of issues of: (1) whether or not all the members of
the PRAC is unconstitutional because: (1) the the Preparatory Recall Assembly were notified of
people have the sole and exclusive right to its meeting; and (2) assuming lack of notice,
decide whether or not to initiate proceedings, and whether or not it would vitiate the proceedings of
(2) it violated the right of elected local public the assembly including its Resolution No. 1.
officials belonging to the political minority to equal
protection of law. They also argued that the The failure to give notice to all members of the
proceedings followed by the PRAC in passing assembly, especially to the members known to
Resolution No. I suffered from numerous defects, be political allies of petitioner Garcia was
the most fatal of which was the deliberate failure admitted by both counsels of the respondents.
to send notices of the meeting to sixty-five (65) They did not deny that only those inclined to
members of the assembly. On September 7, agree with the resolution of recall were notified as
1993, We required the respondents to file their a matter of political strategy and security. They
Comments within a non-extendible period of ten justified these selective notices on the ground
(10) days. On September 16, 1993, We set
5 that the law does not specifically mandate the
petition for hearing on September 21, 1993 at 11 giving of notice.
A.M. After the hearing, We granted the petition on
ground that the sending of selective notices to We reject this submission of the respondents.
members of the PRAC violated the due process The due process clause of the Constitution
protection of the Constitution and fatally flawed requiring notice as an element of fairness is
the enactment of Resolution No. 1. We ruled: inviolable and should always be considered as
part and parcel of every law in case of its silence.
xxx xxx xxx The need for notice to all the members of the
assembly is also imperative for these members
After deliberation, the Court opts not to resolve represent the different sectors of the electorate of
the alleged constitutional infirmity of sec. 70 of Bataan. To the extent that they are not notified of
R.A. No. 7160 for its resolution is not unavoidable the meeting of the assembly, to that extent is the
to decide the merits of the petition. The petition sovereign voice of the people they represent
can be decided on the equally fundamental nullified. The resolution to recall should articulate
the majority will of the members of the assembly 27, 1993, petitioners filed with Us a Supplemental
but the majority will can be genuinely determined Petition and Reiteration of Extremely Urgent
only after all the members of the assembly have Motion for a resolution of their contention that
been given a fair opportunity to express the will of section 70 of R.A. 7160 is unconstitutional.
their constituents. Needless to stress, the
requirement of notice is indispensable in We find the original Petition and the
determining the collective wisdom of the Supplemental Petition assailing the
members of the Preparatory Recall Assembly. Its constitutionality of section 70 of R.A. 7160 insofar
non-observance is fatal to the validity of the as it allows a preparatory recall assembly initiate
resolution to recall petitioner Garcia as Governor the recall of local elective officials as bereft of
of the province of Bataan. merit.

The petition raises other issues that are not Every law enjoys the presumption of validity. The
only prima impressionis but also of presumption rests on the respect due to the
transcendental importance to the rightful exercise wisdom, integrity, and the patriotism of the
of the sovereign right of the people to recall their legislative, by which the law is passed, and the
elected officials. The Court shall discuss these Chief Executive, by whom the law is
issues in a more extended decision.
approved, For upholding the Constitution is not
8

In accord with this Resolution, it appears that on the responsibility of the judiciary alone but also
September 22, 1993, the Honorable Mayor of the duty of the legislative and executive. To strike
9

Dinalupihan, Oscar de los Reyes again sent down a law as unconstitutional, there must be a
Notice of Session to the members of the PRAC to clear and unequivocal showing that what the
"convene in session on September 26, 1993 at fundamental law prohibits, the statute
the town plaza of Balanga, Bataan at 8:30 o'clock permits. The annulment cannot be decreed on a
10

in the morning." From news reports, the PRAC

6 doubtful, and arguable implication. The universal
convened in session and eighty-seven (87) of its rule of legal hermeneutics is that all reasonable
members once more passed a resolution calling doubts should be resolved in favor of the
for the recall of petitioner Garcia. On September
7 constitutionality of a law.
11
Recall is a mode of removal of a public officer by However, any change in the existing form of local
the people before the end of his term of office. government shall not take effect until ratified by a
The people's prerogative to remove a public majority of the votes cast in a plebiscite called for
officer is an incident of their sovereign power and the purpose. (Emphasis supplied)
in the absence of constitutional restraint, the
power is implied in all governmental operations. The Batasang Pambansa then enacted BP 337
Such power has been held to be indispensable entitled "The Local Government Code of 1983."
for the proper administration of public Section 54 of its Chapter 3 provided only one
affairs. Not undeservedly, it is frequently
12 mode of initiating the recall elections of local
described as a fundamental right of the people in elective officials, i.e., by petition of at least
a representative democracy. 13 twenty-five percent (25%) of the total number of
registered voters in the local government unit
Recall is a mode of removal of elective local concerned, viz:
officials made its maiden appearance in our 1973
Constitution. It was mandated in section 2 of
14 Sec. 54. By Whom Exercised; Requisites. — (1)
Article XI entitled Local Government, viz: The power of recall shall be exercised by the
registered voters of the unit to which the local
Sec. 2. The Batasang Pambansa shall enact a elective official subject to such recall belongs.
local government code which may not thereafter
be amended except by a majority vote of all its (2) Recall shall be validly initiated only upon
Members, defining a more responsive and petition of at least twenty-five percent (25%) of
accountable local government structure with the total number of registered voters in the local
an effective system of recall, allocating among government unit concerned based on the election
the different local government units their powers, in which the local official sought to be recalled
responsibilities, and resources, and providing for was elected.
the qualifications, election and removal, term,
salaries, powers, functions, and duties of local Our legal history does not reveal any instance
officials, and all other matters relating to the when this power of recall as provided by BP 337
organization and operation of the local units. was exercised by our people.
In February 1986, however, our people more than establishment of adequate consultation
exercised their right of recall for they resorted to mechanisms.
revolution and they booted of office the highest
elective officials of the land. Section 3 of its Article X also reiterated the
mandate for Congress to enact a local
The successful use of people power to remove government code which "shall provide for a more
public officials who have forfeited the trust of the responsive and accountable local government
electorate led to its firm institutionalization in the structure instituted through a system of
1987 Constitution. Its Article XIII expressly decentralization with effective mechanisms of
recognized the Role and Rights of People's recall, initiative and
Organizations, viz:
referendum. . .," viz :
Sec. 15. The State shall respect the role of
independent people's organizations to enable the Sec. 3. The Congress shall enact a local
people to pursue and protect, within the government code which shall provide for a more
democratic framework, their legitimate and responsible and accountable local government
collective interests and aspirations through structure instituted through a system of
peaceful and lawful means. decentralization with effective mechanisms of
recall, initiative, and referendum, allocate among
People's organizations are bona fide associations the different local government units their powers,
of citizens with demonstrated capacity to promote responsibilities, and resources, and provide for
the public interest and with identifiable the qualifications, election, appointment and
leadership, membership, and structure. removal, term, salaries, powers and functions
and duties of local officials, and all other matters
Sec. 16. The right of the people and their relating to the organization and operation of the
organizations to effective and reasonable local units.
participation at all levels of social, political, and
economic decision-making shall not be abridged. In response to this constitutional call, Congress
The State shall, by laws, facilitate the enacted R.A. 7160, otherwise known as the Local
Government Code of 1991, which took effect on (1) Provincial Level. — all mayors, vice-mayors
January 1, 1992. In this Code, Congress and sanggunian members of the municipalities
provided for a second mode of initiating the recall and component cities;
process through a preparatory recall assembly
which in the provincial level is composed of all (2) City level. — All punong barangay and
mayors, vice-mayors and sanggunian members sangguniang barangay members in the city;
of the municipalities and component cities. We
quote the pertinent provisions of R.A. 7160, viz: (3) Legislative District level. — In cases where
sangguniang panlalawigan members are elected
CHAPTER 5 — RECALL by district, all elective municipal officials in the
district; in cases where sangguniang
Sec. 69. By Whom Exercised. — The power of panglungsod members are elected by district , all
recall for loss of confidence shall be exercised by elective barangay officials in the district; and
the registered voters of a local government unit to
which the local elective official subject to such (4) Municipal level. — All punong barangay and
recall belongs. sangguniang barangay members in the
municipality.
Sec. 70. Initiation of the Recall Process. (a)
Recall may be initiated by a preparatory recall (c) A majority of all the preparatory recall
assembly or by the registered voters of the local assembly members may convene in session in a
government unit to which the local elective official public place and initiate a recall proceeding
subject to such recall belongs. against any elective official in the local
government unit concerned. Recall of provincial,
(b) There shall be a preparatory recall assembly city, or municipal officials shall be validly initiated
in every province, city, district, and municipality through a resolution adopted by a majority of all
which shall be composed of the following: the members of the preparatory recall assembly
concerned during its session called for the
purpose.
(d) Recall of any elective provincial, city, receive the highest number of votes, confidence
municipal, or barangay official may be validly in him is thereby affirmed, and he shall continue
initiated upon petition of at least twenty-five (25) in office.
percent of the total number of registered voters in
the local government unit concerned during the Sec. 73. Prohibition from Resignation. — The
election which in the local official sought to be elective local official sought to be recalled shall
recalled was elected. not be allowed to resign while the recall process
is in progress.
Sec. 71. Election Recall — Upon the filing of a
valid resolution petition for with the appropriate Sec. 74. Limitations on Recall. — (a) Any elective
local office of the Comelec, the Commission or its local official may be the subject of a recall
duly authorized representative shall set the date election only once during his term of office for
of the election on recall, which shall not be later loss of confidence.
than thirty (30) days after the filing of the
resolution or petition recall in the case of the (b) No recall shall take place within one (1) year
barangay, city, or municipal officials, forty-five from the date of the official's assumption to office
(45) days in the case of provincial officials. The or one (1) year immediately preceding regular
official or officials sought to be recalled shall election.
automatically be considered as duly registered
candidate or candidates to the pertinent positions A reading of the legislative history of these recall
and, like other candidates, shall be entitled to be provisions will reveal that the idea of empowering
voted upon. a preparatory recall assembly to initiate the recall
from office of local elective officials originated
Sec. 72. Effectivity of Recall. — The recall of an from the House of Representatives A reading of
elective local official shall be effective only upon the legislative history of these recall provisions
the election and proclamation of a successor in will reveal that the idea of empowering a
the person of the candidate receiving the highest preparatory recall assembly to initiate the recall
number of votes cast during the election on from office of local elective officials, originated
recall. Should the official sought to be recalled from the House of Representatives and not the
Senate. The legislative records reveal there
15
different constitutional settings and needs.
were two (2) principal reasons why this Prescinding from this proposition, We shall now
alternative mode of initiating the recall process resolve the contention of petitioners that the
thru an assembly was adopted, viz: (a) to alternative mode of allowing a preparatory recall
diminish the difficulty of initiating recall thru the assembly to initiate the process of recall is
direct action of the people; and (b) to cut down on unconstitutional.
its expenses. Our lawmakers took note of the
16

undesirable fact that the mechanism initiating It is first postulated by the petitioners that "the
recall by direct action of the electorate was right to recall does not extend merely to the
utilized only once in the City of Angeles, prerogative of the electorate to reconfirm or
Pampanga, but even this lone attempt to recall withdraw their confidence on the official sought to
the city mayor failed. Former Congressman be recalled at a special election. Such
Wilfredo Cainglet explained that this initiatory prerogative necessarily includes the sole and
process by direct action of the people was too exclusive right to decide on whether to initiate a
cumbersome, too expensive and almost recall proceedings or not." 18

impossible to implement. Consequently, our

17

legislators added in the a second mode of We do not agree. Petitioners cannot point to any
initiating the recall of local officials thru a specific provision of the Constitution that will
preparatory recall assembly. They brushed aside sustain this submission. To be sure, there is
the argument that this second mode may cause nothing in the Constitution that will remotely
instability in the local government units due to its suggest that the people have the
imagined ease. "sole and exclusive right to decide on whether
to initiate a recall proceeding." The Constitution
We have belabored the genesis of our recall law did not provide for any mode, let alone a single
for it can light up many of the unillumined mode, of initiating recall elections. Neither did it
19

interstices of the law. In resolving constitutional prohibit the adoption of multiple modes of
disputes, We should not be beguiled by foreign initiating recall elections. The mandate given by
jurisprudence some of which are hardly section 3 of Article X of the Constitution is for
applicable because they have been dictated by Congress to "enact a local government code
which shall provide for a more responsive and Petitioners also positive thesis that in passing
accountable local government structure through a Resolution 1, the Bataan Preparatory Recall
system of decentralization with effective Assembly did not only initiate the process of
mechanisms of recall, initiative, and referendum . recall but had de facto recalled petitioner Garcia
. ." By this constitutional mandate, Congress was from office, a power reserved to the people
clearly given the power to choose the effective alone. To quote the exact language of the
mechanisms of recall as its discernment dictates. petitioners: "The initiation of a recall through the
The power given was to select which among the PRA effectively shortens and ends the term of
means and methods of initiating recall elections the incumbent local officials. Precisely, in the
are effective to carry out the judgment of the case of Gov. Garcia, an election was scheduled
electorate. Congress was not straightjacketed to by the COMELEC on 11 October 1993 to
one particular mechanism of initiating recall determine who has the right to assume the
elections. What the Constitution simply required unexpired portion of his term of office which
is that the mechanisms of recall, whether one or should have been until June 1995. Having been
many, to be chosen by Congress should relegated to the status of a mere candidate for
be effective. Using its constitutionally granted the same position of governor (by operation of
discretion, Congress deemed it wise to enact an law) he has, therefore, been effectively
alternative mode of initiating recall elections to recalled." In their Extremely Urgent Clarificatory
21

supplement the former mode of initiation by direct Manifestation, petitioners put the proposition
22

action of the people. Congress has made its more bluntly stating that a "PRA resolution of
choice as called for by the Constitution and it is recall is the re call itself."
not the prerogative of this Court to supplant this
judgment. The choice may be erroneous but Again, the contention cannot command our
even then, the remedy against a bad law is to concurrence. Petitioners have misconstrued the
seek its amendment or repeal by the legislative. nature of the initiatory process of recall by the
By the principle of separation of powers, it is the PRAC. They have embraced the view that
legislative that determines the necessity, initiation by the PRAC is not initiation by the
adequacy, wisdom and expediency of any law. 20 people. This is a misimpression for initiation by
the PRAC is also initiation by the people, albeit
done indirectly through their representatives. It is which states that "the recall of an elective local
not constitutionally impermissible for the people official shall be effective only upon the election
to act through their elected representatives. and proclamation of a successor in the person of
Nothing less than the paramount task of drafting the candidate receiving the highest number of
our Constitution is delegated by the people to votes cast during the election on recall."
their representatives, elected either to act as a
constitutional convention or as a congressional We shall next settle the contention of petitioners
constituent assembly. The initiation of a recall that the disputed law infracts the equal protection
process is a lesser act and there is no rhyme or clause of the Constitution. Petitioners asseverate:
reason why it cannot be entrusted to and
exercised by the elected representatives of the 5.01.2. It denied petitioners the equal protection
people. More far out is petitioners' stance that a of the laws for the local officials constituting the
PRA resolution of recall is the recall itself. It majority party can constitute itself into a PRA and
cannot be seriously doubted that a PRA initiate the recall of a duly elected provincial
resolution of recall merely, starts the process. It is official belonging to the minority party thus
part of the process but is not the whole process. rendering ineffectual his election by popular
This ought to be self evident for a PRA resolution mandate. Relevantly, the assembly could, to the
of recall that is not submitted to the COMELEC prejudice of the minority (or even partyless)
for validation will not recall its subject official. incumbent official, effectively declare a local
Likewise, a PRA resolution of recall that is elective position vacant (and demand the holding
rejected by the people in the election called for of a special election) for purely partisan political
the purpose bears no effect whatsoever. The ends regardless of the mandate of the electorate.
initiatory resolution merely sets the stage for the In the case at bar, 64 of the 74 signatories to the
official concerned to appear before the tribunal of recall resolution have been political opponents of
the people so he can justify why he should be petitioner Garcia, not only did they not vote for
allowed to continue in office. Before the people him but they even campaigned against him in the
render their sovereign judgment, the official 1992 elections.
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
Petitioners' argument does not really assail the (2) City level. — All punong barangay and
law but its possible abuse by the members of the sangguniang barangay members in the city;
PRAC while exercising their right to initiate recall
proceedings. More specifically, the fear is (3) Legislative District Level. — In cases where
expressed that the members of the PRAC may sangguniang panlalawigan members are elected
inject political color in their decision as they may by district, all elective municipal officials in the
initiate recall proceedings only against their district; and in cases where sangguniang
political opponents especially those belonging to panglungsod members are elected by district, all
the minority. A careful reading of the law, elective barangay officials in the district; and
however, will ineluctably show that it does not
give an asymmetrical treatment to locally elected (4) Municipal level. — All punong barangay and
officials belonging to the political minority. First to sangguniang barangay members in the
be considered is the politically neutral municipality.
composition of the preparatory recall assembly.
Sec. 70 (b) of the Code provides: Under the law, all mayors, vice-mayors and
sangguniang members of the municipalities and
Sec. 70. Initiation of the Recall Process. (a) component cities are made members of the
Recall may be initiated by a preparatory recall preparatory recall assembly at the provincial
assembly or by the registered voters of the local level. Its membership is not apportioned to
government unit to which the local elective official political parties. No significance is given to the
subject to such recall belongs. political affiliation of its members. Secondly, the
preparatory recall assembly, at the provincial
(b) There shall be a preparatory recall assembly level includes all the elected officials in the
in every province, city, district, and municipality province concerned. Considering their number,
which shall be composed of the following: the greater probability is that no one political
party can control its majority. Thirdly, sec. 69 of
(1) Provincial level. — All mayors, vice-mayors the Code provides that the only ground to recall a
and sanggunian members of the municipalities locally elected public official is loss of confidence
and component cities; of the people. The members of the PRAC are in
the PRAC not in representation of their political whether appointed or elected, will act in good
parties but as representatives of the people. By faith and will perform the duties of their office.
necessary implication, loss of confidence cannot Such presumption follows the solemn oath that
be premised on mere differences in political party they took after assumption of office, to faithfully
affiliation. Indeed, our Constitution encourages execute all our laws.
multi-party system for the existence of opposition
parties is indispensable to the growth and nurture Moreover, the law instituted safeguards to assure
of democratic system. Clearly then, the law as that the initiation of the recall process by a
crafted cannot be faulted for discriminating preparatory recall assembly will not be corrupted
against local officials belonging to the minority. by extraneous influences. As explained above,
the diverse and distinct composition of the
The fear that a preparatory recall assembly may membership of a preparatory recall assembly
be dominated by a political party and that it may guarantees that all the sectors of the electorate
use its power to initiate the recall of officials of province shall be heard. It is for this reason that
opposite political persuasions, especially those in Our Resolution of September 21, 1993, We
belonging to the minority, is not a ground to strike held that notice to all the members of the recall
down the law as unconstitutional. To be sure, this assembly is a condition sine qua non to the
argument has long been in disuse for there can validity of its proceedings. The law also requires
be no escape from the reality that all powers are a qualified majority of all the preparatory recall
susceptible of abuse. The mere possibility of assembly members to convene in session and in
abuse cannot, however, infirm per se the grant of a public place. It also requires that the recall
power to an individual or entity. To deny power resolution by the said majority must be
simply because it can be abused by the grantee adopted during its session called for the purpose.
is to render government powerless and no people The underscored words carry distinct legal
need an impotent government. There is no meanings and purvey some of the parameters
democratic government that can operate on the limiting the power of the members of a
basis of fear and distrust of its officials, especially preparatory recall assembly to initiate recall
those elected by the people themselves. On the proceedings. Needless to state, compliance with
contrary, all our laws assume that officials, these requirements is necessary, otherwise,
there will be no valid resolution of recall which local elective officials who are the subject of any
can be given due course by the COMELEC. recall petition.

Furthermore, it cannot be asserted with certitude In the case of Evardone vs. Commission on
that the members of the Bataan preparatory Elections, et al., 204 SCRA 464, 472 (1991), the
recall assembly voted strictly along narrow Court ruled that "loss of confidence" as a ground
political lines. Neither the respondent COMELEC for recall is a political question. In the words of
nor this Court made a judicial inquiry as to the the Court, "whether or not the electorate of the
reasons that led the members of the said recall municipality of Sulat has lost confidence in the
assembly to cast a vote of lack of confidence incumbent mayor is a political question.
against petitioner Garcia. That inquiry was not
undertaken for to do so would require crossing Any assertion therefore that the members of the
the forbidden borders of the political thicket. Bataan preparatory recall assembly voted due to
Former Senator Aquilino Pimentel, Jr., a major their political aversion to petitioner Garcia is at
author of the subject law in his book The Local best a surmise.
Government Code of 1991: The Key to National
Development, stressed the same reason why the Petitioners also contend that the resolution of the
substantive content of a vote of lack of members of the preparatory recall assembly
confidence is beyond any inquiry, thus: subverted the will of the electorate of the
province of Bataan who elected petitioner Garcia
There is only one ground for the recall of local with a majority of 12,500 votes. Again, the
government officials: loss of confidence. This contention proceeds from the erroneous premise
means that the people may petition or the that the resolution of recall is the recall itself. It
Preparatory Recall Assembly may resolve to refuses to recognize the reality that the resolution
recall any local elective officials without of recall is a mere proposal to the electorate of
specifying any particular ground except loss of Bataan to subject petitioner to a new test of faith.
confidence. There is no need for them to bring up The proposal will still be passed upon by the
any charge of abuse or corruption against 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 to determine this mode was specifically given to
of Bataan has been subverted. The electorate of Congress and is not proscribed by the
Bataan may or may not recall petitioner Garcia in Constitution.
an appropriate election. If the electorate re-elects
petitioner Garcia, then the proposal to recall him IN VIEW WHEREOF, the original Petition and the
made by the preparatory recall assembly is Supplemental Petition assailing the
rejected. On the other hand, if the electorate constitutionality of section 70 of R.A. 7160 insofar
does not re-elect petitioner Garcia, then he has as it allows a preparatory recall assembly to
lost the confidence of the people which he once initiate the recall process are dismissed for lack
enjoyed. The judgment will write finis to the of merit. This decision is immediately executory.
political controversy. For more than judgments of
courts of law, the judgment of the tribunal of the SO ORDERED.
people is final for "sovereignty resides in the
people and all government authority emanates Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin,
from them." Regalado, Romero, Nocon and Bellosillo, JJ.,
concur.
In sum, the petition at bench appears to
champion the sovereignty of the people, Griño-Aquino, J., is on leave.
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, Separate Opinions
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 QUIASON, J, concurring:
Recall is a process for the removal of an official and policy (State ex rel Clark v. Harris, 74 Or
during his term by a vote of a specified number of 573, 144 p. 109).
citizens at an election called for such purpose
(Wallaca v. Tripp, 358 Mich. 668, 101 NW 2d The 1987 Constitution does not prescribe the
312). procedure in the recall of elective officials.

The process may be provided for in a constitution The intent is clear that the 1987 Constitution
or in the absence of constitutional empowerment, leaves it to Congress to provide the recall
in ordinary statutes. In the latter case, legislature mechanism without any pre-ordained restrictions.
enacts a system for recall in the exercise of its The broad powers of Congress in pescribing the
general control of the removal of public officer (In procedure for recall include the determination as
re Bower, 41 III. 777, 242 No. 2D, 252, Dunhan v. to the number of electors needed to initiate the
Ardery, 43 OKI 619, 142 p. 331). recall, the method of voting of the electors, the
time and place of the voting and whether the
Recall statutes enacted without express process includes the election of the successor of
constitutional mandate have been upheld against the recalled official.
claims (a) that they are obnoxious to a republican
form of government (Dunhan v. Ardery, supra) or In the Local Government Code of 1991 (R.A.
(b) that they constitute a denial of due process or 7160), Congress adopted an alternative
a bill of attainder (State ex rel Topping v. procedure for initiating the recall and made it as a
Houston, 94 Neb. 445, 643 NW 796, Roberts v. mere stage of the recall process.
Brown, 73 Tenn App. 567, 310 SW 2d. 197).
Congress also deigned it wise to give the
The procedure in the recall of an official may be electorate a chance to participate in the exercise
prescribed in the constitution itself or in statutory twice: first, in the initiation of the recall; and
provisions relating to the subject. In passing on secondly, in the election of the person to occupy
the construction of recall statutes, the courts the office subject of the recall. This is in contrast
have enforced them according to their terms and with the first recall statute in the Philippines, the
have disclaimed all concern as to their wisdom Festin Law (Com. Act No. 560) where the
participation of the electorate were denied the it, therefore, becomes all too evident that there
opportunity to vote for the retention of the official has been an abuse of that authority, appropriate
subject of the recall. judicial recourse to, and corrective relief by, this
Court will not be denied.
In a sense, the members of the PRA can be
considered as constituting a segment of the DAVIDE, JR., J., dissenting:
electorate because they are all registered voters
of the province. If they constitute less than one The paramount issue in this case is the
per cent of the voters in the province, that constitutionality of that part of Section 70 of the
miniscule number goes to the policy, not the Local Government Code of 1991 (R.A. 7160)
validity of the law and the remedy to correct such which grants to a body known as the preparatory
a flaw is left with t he legislature, not with the recall assembly (PRA) the power to initiate recall
judiciary. proceedings. At the provincial level, as in this
1

case, the PRA is composed of all mayors, vice-

VITUG, J., concurring: mayors and sanggunian members of the
municipalities and component cities in the
I fully concur with the disquisition made by Mr. province.
Justice Reynato S. Puno, and I agree that it is not
within the province of the courts to question the The issue can only be resolved by inquiring into
wisdom of, let alone supplant, legislative the nature or essence of recall. The system of
judgments laid down by Congress to the extent of recall was adopted for the first time in our
its constitutional authority and mandate. jurisdiction in the 1973 Constitution. Section 2 of
Article XI thereof provided:
It may not be amiss, however, to caution against
any idea of omnipotence in wielding the "power of Sec. 2 The Batasang Pambansa shall enact a
recall" conferred to the "Preparatory Recall local government code which may not thereafter
Assembly." Clearly implicit in any grant of power, be amended except by a majority vote of all its
like any other right, is an assumption of a members, defining a more responsive and
correlative duty to exercise it responsibly. When
accountable local government structure with an citizens within a representative democracy. For
effective system of recall. . . . its definition, Wallace quotes Websters's New
International Dictionary, 2nd ed., to wit:
This section was incorporated, with some
modifications, in the 1987 Constitution to The right or procedure by which a public official,
emphasize the thrust on decentralization and to commonly a legislative or executive official, may
provide for a mechanism of initiative and be removed from office, before the end of his
referendum. Section 3 of Article X thereof term of office, by a vote of the people to be taken
provides as follows: on the filing of a petition signed by the required
number of qualified voters (commonly 25%).
Sec. 3 The Congress shall enact a local
government code which shall provide for a more The principle underlying recall is stated
responsive and accountable local government in Dunham vs. Ardery as follows:
5

structure instituted through a system of

decentralization with effective mechanisms of We understand that the principle underlying the
recall, initiative, and referendum, . . . recall of public officers means that the people
may have an effective and speed remedy to
Recall is of American origin. In 1951, the remove an official who is not giving satisfaction
constitutions of twelve (12) States of the — one who they do not want to continue in office,
American union contained provisions on recall. regardless of whether or not he is discharging his
Oregon was the first to adopt it in 1908, although full duty to the best of his ability and as his
it had been part of the charter of the city of Los conscience dictates. If the policies pursued do
Angeles five years earlier.
2
not meet the approval of a majority of the people,
it is the underlying principle of the recall doctrine
Wallace vs. Tripp considers it a fundamental right
3
to permit them to expeditiously recall the official,
reserved to the people of the state by the without form or ceremony, as provided for in the
Constitution, and Bernzen vs. City of charter.
Boulder declares it, like the power of initiative
4

and referendum, to be a fundamental right of

Since recall is constitutionally mandated in our which the local elective official subject to such
jurisdiction, it goes without saying that it is a recall belongings.
power reserved to the people to be exercised by
the registered voters. It was for this reason that, Indubitably then, the power of recall
to implement the power of recall under the 1973 is exclusively vested in the electorate or, more
Constitution, Batas Pambansa Blg. 337 (the old specifically, in the registered voters of the local
Local Government Code) provided in Section 54 government unit concerned. In the United States,
thereof as follows: from where we patterned our system of recall, the
initiation of the recall proceeding is always done
Sec.54. By whom exercised; Requisites. — (1) by a certain percentage of the voters. Thus:
The power of recall shall be exercised by the
registered voters of the unit to which the local . . . The required percentage ranges from ten in
elective official subject to such recall belongs. Kansas to thirty in North Dakota, but twenty-five
is by far the most common. 6

(2) Recall shall be validly initiated only upon

petition of a least twenty-five percent of the total In both B.P. Blg. 337 and the Local Government
number of registered voters in the local Code of 1991, our Legislature fixed it at twenty-
government unit concerned based on the local five percent (25%) of the total number of
sought to be recalled was elected. registered voters in the local government unit
concerned during the election in which the local
To implement the 1987 Constitution provision on official sought to be recalled was elected. It 7

recall, the Local Government Code of 1991 follows then that said power cannot be shared
likewise expressly provides in Section 69 as with any other group of persons or officials. Any
follows: such sharing would impair or negate the
exclusive character of the power. It is indivisible.
Sec. 69. By whom Exercised. — The power of Its essential, nay indispensable, components are
recall for loss of confidence shall be exercised by the initiation and the election, both of which are
the registered voters of a local government unit to substantive in character. By reason of its
exclusive and the indivisible character, both
components must be exercised by the electorate authority to initiate it to any entity other than the
alone. The reason why the initiation phase can electorate, especially where the delegation
and must be done only by the electorate is not unduly infringes upon and impairs such power as
difficult to understand. If it can also be done by in this case.
another body, such as the PRA in this case, the
exclusiveness or indivisibility of the power is I might add that since Congress decided to retain
necessarily impaired or negated. In such a case, the 25% requirement for the traditional method of
the electorate is by passed and the resulting initiating recall — which is the method in full
recall petition or resolution can by no means be accord and perfect harmony with the true
an authentic, free, and voluntary act of the essence of recall — the provision for an
electorate, which characteristics are indicia of the alternative method, i.e., recall resolution by a
exercise of a power. The power to initiate, being mere majority of the PRA, is subtly designed to
a component of the power or recall, necessarily negate, if not altogether defeat, the power of the
includes the power not to initiate. The power to electorate and to substitute the will of a very
initiate becomes meaningless if another body is small group for the will of the electorate.
authorized to do it for the electorate. Worse, Admittedly, it is extremely difficult to meet the
since the second component of the power of 25% requirement. On the other hand, it is far too
recall, i.e., the recall election, does not come into easy, and at times politically convenient and
play without the recall petition, it follows that expedient, to get a majority of the members of
where the petition is not done through the the PRA to initiate a recall proceeding. The
initiative of the electorate because the latter choice then is all too obvious. Indeed, this is the
chooses not to exercise its power to recall or clear message of the admission by former
finds no reason therefor, that election becomes, Congressman Wilfredo Cainglet that the 25%
as to the electorate would in effect be compelled requirement rendered the traditional method
to participate in a political exercise it neither ineffective thus necessitating the creation of an
called for nor decided to have. alternative method. But the alternative method
besmirches the sanctity of the recall process. If
Hence, the fullness of the power of recall 25% was found ineffective, then the remedy
precludes the delegation of the corresponding
should have been to reduce it to, say, 15% or enacts a system for recall in the exercise of its
20%. general control of the removal of public officer (In
re Bower, 41 III. 777, 242 No. 2D, 252, Dunhan v.
The conclusion then is inevitable that the Ardery, 43 OKI 619, 142 p. 331).
provision on the preparatory recall assembly in
Section 70 of the Local Government Code of Recall statutes enacted without express
1991 is unconstitutional because it amounts to an constitutional mandate have been upheld against
undue delegation of the power of recall. claims (a) that they are obnoxious to a republican
form of government (Dunhan v. Ardery, supra) or
I vote to grant the petition. (b) that they constitute a denial of due process or
a bill of attainder (State ex rel Topping v.
Melo, J., concur. 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
# Separate Opinions
the construction of recall statutes, the courts
QUIASON, J, concurring: have enforced them according to their terms and
have disclaimed all concern as to their wisdom
Recall is a process for the removal of an official and policy (State ex rel Clark v. Harris, 74 Or
during his term by a vote of a specified number of 573, 144 p. 109).
citizens at an election called for such purpose
(Wallaca v. Tripp, 358 Mich. 668, 101 NW 2d The 1987 Constitution does not prescribe the
312). procedure in the recall of elective officials.

The process may be provided for in a constitution The intent is clear that the 1987 Constitution
or in the absence of constitutional empowerment, leaves it to Congress to provide the recall
in ordinary statutes. In the latter case, legislature mechanism without any pre-ordained restrictions.
The broad powers of Congress in pescribing the miniscule number goes to the policy, not the
procedure for recall include the determination as validity of the law and the remedy to correct such
to the number of electors needed to initiate the a flaw is left with t he legislature, not with the
recall, the method of voting of the electors, the judiciary.
time and place of the voting and whether the
process includes the election of the successor of VITUG, J., concurring:
the recalled official.
I fully concur with the disquisition made by Mr.
In the Local Government Code of 1991 (R.A. Justice Reynato S. Puno, and I agree that it is not
7160), Congress adopted an alternative within the province of the courts to question the
procedure for initiating the recall and made it as a wisdom of, let alone supplant, legislative
mere stage of the recall process. judgments laid down by Congress to the extent of
its constitutional authority and mandate.
Congress also deigned it wise to give the
electorate a chance to participate in the exercise It may not be amiss, however, to caution against
twice: first, in the initiation of the recall; and any idea of omnipotence in wielding the "power of
secondly, in the election of the person to occupy recall" conferred to the "Preparatory Recall
the office subject of the recall. This is in contrast Assembly." Clearly implicit in any grant of power,
with the first recall statute in the Philippines, the like any other right, is an assumption of a
Festin Law (Com. Act No. 560) where the correlative duty to exercise it responsibly. When
participation of the electorate were denied the it, therefore, becomes all too evident that there
opportunity to vote for the retention of the official has been an abuse of that authority, appropriate
subject of the recall. judicial recourse to, and corrective relief by, this
Court will not be denied.
In a sense, the members of the PRA can be
considered as constituting a segment of the DAVIDE, JR., J., dissenting:
electorate because they are all registered voters
of the province. If they constitute less than one The paramount issue in this case is the
per cent of the voters in the province, that constitutionality of that part of Section 70 of the
Local Government Code of 1991 (R.A. 7160) Sec. 3 The Congress shall enact a local
which grants to a body known as the preparatory government code which shall provide for a more
recall assembly (PRA) the power to initiate recall responsive and accountable local government
proceedings. At the provincial level, as in this
1
structure instituted through a system of
case, the PRA is composed of all mayors, vice- decentralization with effective mechanisms of
mayors and sanggunian members of the recall, initiative, and referendum, . . .
municipalities and component cities in the
province. Recall is of American origin. In 1951, the
constitutions of twelve (12) States of the
The issue can only be resolved by inquiring into American union contained provisions on recall.
the nature or essence of recall. The system of Oregon was the first to adopt it in 1908, although
recall was adopted for the first time in our it had been part of the charter of the city of Los
jurisdiction in the 1973 Constitution. Section 2 of Angeles five years earlier.
2

Article XI thereof provided:

Wallace vs. Tripp considers it a fundamental right
3

Sec. 2 The Batasang Pambansa shall enact a reserved to the people of the state by the
local government code which may not thereafter Constitution, and Bernzen vs. City of
be amended except by a majority vote of all its Boulder declares it, like the power of initiative
4

members, defining a more responsive and and referendum, to be a fundamental right of

accountable local government structure with an citizens within a representative democracy. For
effective system of recall. . . . its definition, Wallace quotes Websters's New
International Dictionary, 2nd ed., to wit:
This section was incorporated, with some
modifications, in the 1987 Constitution to The right or procedure by which a public official,
emphasize the thrust on decentralization and to commonly a legislative or executive official, may
provide for a mechanism of initiative and be removed from office, before the end of his
referendum. Section 3 of Article X thereof term of office, by a vote of the people to be taken
provides as follows: on the filing of a petition signed by the required
number of qualified voters (commonly 25%).
The principle underlying recall is stated registered voters of the unit to which the local
in Dunham vs. Ardery as follows:
5
elective official subject to such recall belongs.

We understand that the principle underlying the (2) Recall shall be validly initiated only upon
recall of public officers means that the people petition of a least twenty-five percent of the total
may have an effective and speed remedy to number of registered voters in the local
remove an official who is not giving satisfaction government unit concerned based on the local
— one who they do not want to continue in office, sought to be recalled was elected.
regardless of whether or not he is discharging his
full duty to the best of his ability and as his To implement the 1987 Constitution provision on
conscience dictates. If the policies pursued do recall, the Local Government Code of 1991
not meet the approval of a majority of the people, likewise expressly provides in Section 69 as
it is the underlying principle of the recall doctrine follows:
to permit them to expeditiously recall the official,
without form or ceremony, as provided for in the Sec. 69. By whom Exercised. — The power of
charter. recall for loss of confidence shall be exercised by
the registered voters of a local government unit to
Since recall is constitutionally mandated in our which the local elective official subject to such
jurisdiction, it goes without saying that it is a recall belongings.
power reserved to the people to be exercised by
the registered voters. It was for this reason that, Indubitably then, the power of recall
to implement the power of recall under the 1973 is exclusively vested in the electorate or, more
Constitution, Batas Pambansa Blg. 337 (the old specifically, in the registered voters of the local
Local Government Code) provided in Section 54 government unit concerned. In the United States,
thereof as follows: from where we patterned our system of recall, the
initiation of the recall proceeding is always done
Sec.54. By whom exercised; Requisites. — (1) by a certain percentage of the voters. Thus:
The power of recall shall be exercised by the
. . . The required percentage ranges from ten in exercise of a power. The power to initiate, being
Kansas to thirty in North Dakota, but twenty-five a component of the power or recall, necessarily
is by far the most common. 6
includes the power not to initiate. The power to
initiate becomes meaningless if another body is
In both B.P. Blg. 337 and the Local Government authorized to do it for the electorate. Worse,
Code of 1991, our Legislature fixed it at twenty- since the second component of the power of
five percent (25%) of the total number of recall, i.e., the recall election, does not come into
registered voters in the local government unit play without the recall petition, it follows that
concerned during the election in which the local where the petition is not done through the
official sought to be recalled was elected. It 7
initiative of the electorate because the latter
follows then that said power cannot be shared chooses not to exercise its power to recall or
with any other group of persons or officials. Any finds no reason therefor, that election becomes,
such sharing would impair or negate the as to the electorate would in effect be compelled
exclusive character of the power. It is indivisible. to participate in a political exercise it neither
Its essential, nay indispensable, components are called for nor decided to have.
the initiation and the election, both of which are
substantive in character. By reason of its Hence, the fullness of the power of recall
exclusive and the indivisible character, both precludes the delegation of the corresponding
components must be exercised by the electorate authority to initiate it to any entity other than the
alone. The reason why the initiation phase can electorate, especially where the delegation
and must be done only by the electorate is not unduly infringes upon and impairs such power as
difficult to understand. If it can also be done by in this case.
another body, such as the PRA in this case, the
exclusiveness or indivisibility of the power is I might add that since Congress decided to retain
necessarily impaired or negated. In such a case, the 25% requirement for the traditional method of
the electorate is by passed and the resulting initiating recall — which is the method in full
recall petition or resolution can by no means be accord and perfect harmony with the true
an authentic, free, and voluntary act of the essence of recall — the provision for an
electorate, which characteristics are indicia of the 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.