Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 94010 December 2, 1991 FELIPE EVARDONE, petitioner, vs. COMMISSION ON ELECTIONS, ALE ANDER APELADO, VICTORINO E. ACLAN !"# NOEL A. NIVAL, respondents. G.R. No. 9$0%& December 2, 1991 ALE ANDER R. APELADO, VICTORINO E. ACLAN !"# NOEL A. NIVAL, petitioners, vs. COMMISSION ON ELECTIONS !"# MA'OR FELIPE EVARDONE, respondents. Zosimo G. Alegre for Felipe Evardone. Elmer C. Solidon for petitioners in G.R. No. 95063. PADILLA, J.:p These two ( ! consolidated petitions have their ori"in in en an! Resolution No. #$%$&&' issued b( the respondent Co))ission on Elections (C*ME+EC! dated $ ,une -##$ which approved the reco))endation of the Election Re"istrar of .ulat, Eastern .a)ar to hold and conduct the si"nin" of the petition for recall of the incu)bent Ma(or of .ulat, Eastern .a)ar, on -/ ,ul( -##$. 0.R. No. #/$-$ is a petition for prohibition with an ur"ent pra(er for i))ediate issuance of a restrainin" order and1or writ of preli)inar( in2unction to restrain the holdin" of the si"nin" of the petition for recall on -/ ,ul( -##$. 0.R. No. #&$34 is a petition for review on !ertiorari which see5s to set aside en an! Resolution No. #$%$33$ of the respondent C*ME+EC nullif(in" the si"nin" process held on -/ ,ul( -##$ in .ulat, Eastern .a)ar for the recall of Ma(or Evardone of said )unicipalit( and en an! Resolution No. #$%$''' den(in" petitioners6 )otion for reconsideration, on the basis of the te)porar( restrainin" order issued b( this Court on - ,ul( -##$ in 0.R. No. #/$-$. 7elipe Evardone (hereinafter referred to as Evardone! is the )a(or of the Municipalit( of .ulat, Eastern .a)ar, havin" been elected to the position durin" the -#88 local elections. 9e assu)ed office i))ediatel( after procla)ation. *n -/ 7ebruar( -##$, Ale:ander R. Apelado, ;icto<ino E. Aclan and Noel A. Nival (hereinafter referred to as Apelado, et al.! filed a petition for the recall of Evardone with the *ffice of the +ocal Election Re"istrar, Municipalit( of .ulat. =n a )eetin" held on $ ,une -##$, the respondent C*ME+EC issued Resolution No. #$% $&&', approvin" the reco))endation of Mr. ;edasto B. .u)billa, Election Re"istrar of .ulat, Eastern .a)ar, to hold on -/ ,ul( -##$ the si"nin" of the petition for recall a"ainst incu)bent Ma(or Evardone of the said Municipalit(. *n -$ ,ul( -##$, Evardone filed before this Court a petition for prohibition with ur"ent pra(er for i))ediate issuance of restrainin" order and1or writ of preli)inar( in2unction, which was

doc5eted as 0.R. No. #/$-$. *n - ,ul( -##$, this Court resolved to issue a te)porar( restrainin" order (TR*!, effective i))ediatel( and continuin" until further orders fro) the Court, orderin" the respondents to cease and desist fro) holdin" the si"nin" of the petition for recall on -/ ,ul( -##$, pursuant to respondent C*ME+EC6s Resolution No. ' dated 4 Ma( -##$. *n the sa)e da( (- ,ul( -##$!, the notice of TR* was received b( the Central *ffice of the respondent C*ME+EC. But it was onl( on -& ,ul( -##$ that the field a"ent of the respondent C*ME+EC received the tele"raphic notice of the TR* a da( after the co)pletion of the si"nin" process sou"ht to be te)poraril( stopped b( the TR*. =n an en an! resolution (No. #$%$33$! dated 3 ,ul( -##$, the respondent C*ME+EC nullified the si"nin" process held in .ulat, Eastern .a)ar for bein" violative of the order (the TR*! of this Court in 0.R. No. #/$-$. Apelado, et al., filed a )otion for reconsideration and on # Au"ust -##$, the respondent C*ME+EC denied said )otion holdin" that>
. . . The critical date to consider is the service or notice of the Restrainin" *rder on - ,ul( -##$ upon the principal i.e. the Co))ission on Election, and not upon its a"ent in the field. 1 9ence, the present petition for review on !ertiorari in 0.R. No. #&$34 which see5s to set aside en an! Resolution No. #$%$33$ of respondent C*ME+EC.

=n 0.R. No. #/$-$, Evardone contends that>

=. The C*ME+EC co))itted "rave abuse of discretion in approvin" the reco))endation of the Election Re"istrar of .ulat, Eastern .a)ar to hold the si"nin" of the petition for recall without "ivin" petitioner his da( in court. ==. The C*ME+EC li5ewise co))itted "rave abuse of discretion a)ountin" to lac5 or e:cess of 2urisdiction in pro)ul"atin" Resolution No. ' on Ma( , -##$ which is null and void for bein" unconstitutional. 2

=n 0.R. No. #&$34, Apelado, et al., raises the issue of whether or not the si"nin" process of the petition for recall held on -/ ,ul( -##$ has been rendered nu"ator( b( the TR* issued b( this court in 0.R. No. #/$-$ dated - ,ul( -##$ but received b( the C*ME+EC field a"ent onl( on -& ,ul( -##$. The principal issue for resolution b( the Court is the constitutionalit( of Resolution No. ' pro)ul"ated b( respondent C*ME+EC on 4 Ma( -##$ b( virtue of its powers under the Constitution and Batas Pa)bansa Bl". 44' (+ocal 0overn)ent Code!. The resolution e)bodies the "eneral rules and re"ulations on the recall of elective provincial, cit( and )unicipal officials. Evardone )aintains that Article ?, .ection 4 of the -#8' Constitution repealed Batas Pa)bansa Bl". 44' in favor of one to be enacted b( Con"ress. .aid .ection 4 provides>
.ec. 4. The Con"ress shall enact a local "overn)ent code shall provide for a )ore responsive and accountable local "overn)ent structure instituted throu"h a s(ste) of decentrali<ation with effective )echanis)s of recall, initiative, and referendu), allocate a)on" the different local "overn)ent units their powers, responsibilities and resources, and provide for the @ualifications, election, appoint)ent and re)oval, ter), salaries, powers and functions and duties local officials, and all other )atters relatin" to the or"ani<ation operation of the local units.

.ince there was, durin" the period )aterial to this case, no local "overn)ent code enacted b( Con"ress after the effectivit( of the -#8' Constitution nor an( law for that )atter on the sub2ect of recall of elected "overn)ent officials, Evardone contends that there is no basis for C*ME+EC Resolution No. ' and that the recall proceedin"s in the case at bar is pre)ature.

The respondent C*ME+EC, in its Co))ent (0.R. No. #/$-$! avers that>
The constitutional provision does not refer onl( to a local "overn)ent code which is in f"t"r"m but also in esse. =t )erel( sets forth the "uidelines which Con"ress will consider in a)endin" the provisions of the present +ocal 0overn)ent Code. Pendin" the enact)ent of the a)endator( law, the e:istin" +ocal 0overn)ent Code re)ains operative. The adoption of the -#8' Constitution did not abro"ate the provisions of BP No. 44', unless a certain provision thereof is clearl( irreconciliable with the provisions of the -#8' Constitution. =n this case, .ections &/ to &# of Batas Pa)bansa No. 44' are not inconsistent with the provisions of the Constitution. 9ence, the( are operative. &

Ae find the contention of the respondent C*ME+EC )eritorious. Article ?;===, .ection 4 of the -#8' Constitution e:press provides that all e:istin" laws not inconsistent with the -#8' Constitution shall re)ain operative, until a)ended, repealed or revo5ed. Republic Act No. '-3$ providin" for the +ocal 0overn)ent Code of -##-, approved b( the President on -$ *ctober -##-, specificall( repeals B.P. Bl". 44' as provided in .ec. &4/, Title 7our of said Act. But the +ocal 0overn)ent Code of -##- will ta5e effect onl( on ,anuar( -## and therefore the old +ocal 0overn)ent Code (B.P. Bl". 44'! is still the law applicable to the present case. Prior to the enact)ent of the new +ocal 0overn)ent Code, the effectiveness of B.P. Bl". 44' was e:pressl( reco"ni<ed in the proceedin"s of the -#83 Constitutional Co))ission. Thus
MR. N*++EB*. Besides, pendin" the enact)ent of a new +ocal 0overn)ent Code under the report of the Co))ittee on A)end)ents and Transitor( Provisions, the for)er +ocal 0overn)ent Code, which is Batas Pa)bansa Bl". 44' shall continue to be effective until repealed b( the Con"ress of the Philippines. 4

Chapter 4 (.ections &/ to &#! of B.P. Bl". 44' provides for the )echanis) for recall of local elective officials. .ection &# e:pressl( authori<es the respondent C*ME+EC to conduct and supervise the process of and election on recall and in the e:ercise of such powers, pro)ul"ate the necessar( rules and re"ulations. The Election Code contains no special provisions on the )anner of conductin" elections for the recall of a local official. An( such election shall be conducted in the )anner and under the rules on special elections, unless otherwise provided b( law or rule of the C*ME+EC. $ Thus, pursuant to the rule%)a5in" power vested in respondent C*ME+EC, it pro)ul"ated Resolution No. ' on 4 Ma( -##$. Ae therefore rule that Resolution No. ' pro)ul"ated b( respondent C*ME+EC is valid and constitutional. Conse@uentl(, the respondent C*ME+EC had the authorit( to approve the petition for recall and set the date for the si"nin" of said petition. The ne:t issue for resolution is whether or not the TR* issued b( this Court rendered nu"ator( the si"nin" process of the petition for recall held pursuant to Resolution No. ' . =n Governor Zosimo #. $aredes% et al . vs. E&e!"tive Se!retar' to t(e $resident of t(e $(ilippines% et al., % this Court held>
. . . Ahat is sou"ht in this suit is to en2oin respondents particularl( respondent Co))ission fro) i)ple)entin" Batas Pa)bansa Bl". 83, specificall( Cfro) conductin", holdin" and underta5in" the plebiscite provided for in said act.C The petition was filed on Bece)ber &, -#8$. There was a plea for a restrainin" order, but Procla)ation No. $4/ fi:in" the date for such plebiscite on Bece)ber 3, -#8$ had been issued as far as bac5 as Nove)ber --, -#8$. Bue this dela( in to this suit, attributable solel( to petitioners, there was no ti)e even to consider such a plea. The plebiscite was dul( held. The certificate of canvass and procla)ation of the result disclosed that out of ,/$# total votes cast in such plebiscite, ,438 votes were cast in favor of the creation of the new )unicipalit(, which, accordin" to the statute, will be na)ed )unicipalit( of A"uinaldo.

There were onl( /$ votes cast a"ainst. As a result, such )unicipalit( was created. There is no turnin" bac5 the cloc5. The )oot and acade)ic character of this petition is thus apparent.

=n the present case, the records show that Evardone 5new of the Notice of Recall filed b( Apelado, et al. on or about - 7ebruar( -##$ as evidenced b( the Re"istr( Return ReceiptD (et, he was not vi"ilant in followin" up and deter)inin" the outco)e of such notice. Evardone alle"es that it was onl( on or about 4 ,ul( -##$ that he ca)e to 5now about the Resolution of respondent C*ME+EC settin" the si"nin" of the petition for recall on -/ ,ul( -##$. But despite his ur"ent pra(er for the issuance of a TR*, Evardone filed the petition for prohibition onl( on -$ ,ul( -##$. =ndeed, this Court issued a TR* on - ,ul( -##$ but the si"nin" of the petition for recall too5 place 2ust the sa)e on the scheduled date throu"h no fault of the respondent C*ME+EC and Apelado, et al. The si"nin" process was underta5en b( the constituents of the Municipalit( of .ulat and its Election Re"istrar in "ood faith and without 5nowled"e of the TR* earlier issued b( this Court. As attested b( Election Re"istrar .u)billa, about ,$&$ of the 3,$#$ re"istered voters of .ulat, Eastern .a)ar or about 4/E si"ned the petition for recall. As held in $arades vs. E&e!"tive Se!retar' ( there is no turnin" bac5 the cloc5.
The ri"ht to recall is co)ple)entar( to the ri"ht to elect or appoint. =t is included in the ri"ht of suffra"e. =t is based on the theor( that the electorate )ust )aintain a direct and elastic control over public functionaries. =t is also predicated upon the idea that a public office is CburdenedC with public interests and that the representatives of the people holdin" public offices are si)pl( a"ents or servants of the people with definite powers and specific duties to perfor) and to follow if the( wish to re)ain in their respective offices. )

Ahether or not the electorate of the Municipalit( of .ulat has lost confidence in the incu)bent )a(or is a political @uestion. =t belon"s to the real) of politics where onl( the people are the 2ud"e. 9 C+oss of confidence is the for)al withdrawal b( an electorate of their trust in a person6s abilit( to dischar"e his office previousl( bestowed on hi) b( the sa)e electorate. 10 The constituents have )ade a 2ud")ent and their will to recall the incu)bent )a(or (Evardone! has alread( been ascertained and )ust be afforded the hi"hest respect. Thus, the si"nin" process held last -/ ,ul( -##$ in .ulat, Eastern .a)ar, for the recall of Ma(or 7elipe P. Evardone of said )unicipalit( is valid and has le"al effect. 9owever, recall at this ti)e is no lon"er possible because of the li)itation provided in .ec. && ( ! of B.P. Bl", 44', which states>
.ec. &&. Aho Ma( Be RecalledD 0round for RecallD Ahen Recall Ma( not be 9eld. . . . ( ! No recall shall ta5e place within two (ears fro) the date of the official6s assu)ption of office or one (ear i))ediatel( precedin" a re"ular local election.

The Constitution has )andated a s(nchroni<ed national and local election prior to 4$ ,une -## , or )ore specificall(, as provided for in Article ?;===, .ec. & on the second Monda( of Ma(, -## . 11 Thus, to hold an election on recall appro:i)atel( seven ('! )onths before the re"ular local election will be violative of the above provisions of the applicable +ocal 0overn)ent Code (B.P. Bl". 44'! ACC*RB=N0+F, both petitions are B=.M=..EB for havin" beco)e )oot and acade)ic. .* *RBEREB. Narvasa% )elen!io*+errera% G"tierre,% #r.% Cr",% $aras% Feli!iano% -idin% Gri.o*A/"ino% )edialdea% Regalado% 0avide% #r. and Romero% ##.% !on!"r. Fernan% C.#.% is on leave.

Foo+"o+e,
- 0.R. No. #&$34, Rollo, p. -3. 0.R. No. #/$-$, Rollo, p. /. 4 0.R. No. #/$-$, Rollo, p. &$. / Record of the Constitutional Co))ission, ;ol. ===, p. /$$. & ANT*N=* *RENBA=N, P9=+=PP=NE +*CA+ 0*;ERNMENT ANN*TATEB (-#84!. 3 0.R. No. &&3 8, March , -#8/, - 8 .CRA 3. ' S"pra. 8 *rendain, s"pra, p. 8'. # +aw(ers6 +ea"ue 7or A Better Philippines vs. President Cora<on C. A@uino, 0.R. Nos. '4'/8, '4#' , '4##$, Ma( , -#83. -$ *rendain, s"pra% p. 8'. -- 0overnor E)ilio M.R. *s)eGa, et al. vs. Co))ission, et al., 0.R. No. -$$4-8, 4$ ,ul( -##-.