Hundred and Forty- Six (146) composed of
ADMELEC – Assigned Cases
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.
PUNO, J.:
The EDSA revolution of 1986 restored the reality that the
people's might is not a myth. The 1987 Constitution then
included people power as an article of faith and Congress was
mandated to p ass laws for its effective exercise. The Local
Government Code of 1991 was enacted providing for two (2)
modes of initiating the recall from office of local elective officials
who appear to have lost the confidence of the electorate. One
of these modes is recall through the initiative of a preparatory
recall assembly. In the case at bench, petitioners assail this
mode of initiatory recall as unconstitutional. The challenge
cannot succeed.
We shall first unfurl the facts.
Petitioner Enrique T. Garcia was elected governor of the
province of Bataan in the May 11, 1992 elections. In the early
evening of July 1993, some mayors, vice-mayors and members
of the Sangguniang Bayan of the twelve (12) municipalities of
the province met at the National Power Corporation compound
in Bagac, Bataan. At about 12:30 A.M of the following day, July
2, 1993, they proceeded to the Bagac town plaza where they
constituted themselves into a Preparatory Recall Assembly to
initiate the recall election of petitioner Garcia. The mayor of
Mariveles, Honorable Oscar, de los Reyes, and the mayor of
Dinalupihan, the Honorable Lucila Payumo, were chosen as
Presiding Officer and Secretary of the Assembly, respectively.
Thereafter, the Vice-Mayor of Limay, the Honorable Ruben
Roque, was recognized and he moved that a resolution be
passed for the recall of the petitioner on the ground of "loss of
confidence."1 The motion was "unanimously seconded." 2 The
resolution states:
RESOLUTION NO. 1
Whereas, the majority of all the members
of the Preparatory Recall Assembly in the
Province of Bataan have voluntarily
constituted themselves for the purpose of
the recall of the incumbent provincial
governor of the province of Bataan,
Honorable Enrique T. Garcia pursuant to
the provisions of Section 70, paragraphs
(a), (b) and (c) of Republic Act 7160,
otherwise known as the Local Government
Code of 1991;
Whereas, the total number of all the
members of the Preparatory Recall
Assembly in the province of Bataan is One
all mayors, vice-mayors and members of
the Sangguniang Bayan of all the 12 towns
of the province of Bataan;
Whereas, the majority of all the members
of the Preparatory Recall Assembly, after a
serious and careful deliberation have
decided to adopt this resolution for the
recall of the incumbent provincial governor
Garcia for loss of confidence;
Now, therefore, be it resolved, as it is
hereby resolved that having lost
confidence on the incumbent governor of
Bataan, Enrique T. Garcia, recall
proceedings be immediately initiated
against him;
Resolved further, that copy of this
resolution be furnished the Honorable
Commission on Elections, Manila and the
Provincial Election Supervisor, Balanga,
Bataan.
One hundred forty-six (146) names appeared in Resolution No.
1 but only eighty (80) carried the signatures of the members of
the PRA. Of the eighty (80) signatures, only seventy-four (74)
were found genuine.3 The PRAC of the province had a
membership of one hundred forty-four (144) 4 and its majority
was seventy-three (73).
On July 7, 1993, petitioners filed with the respondent
COMELEC a petition to deny due course to said Resolution No.
1. Petitioners alleged that the PRAC failed to comply with the
"substantive and procedural requirement" laid down in Section
70 of R.A. 7160, otherwise known as the Local Government
Code of 1991. In a per curiam Resolution promulgated August
31, 1993, the respondent COMELEC dismissed the petition and
scheduled the recall elections for the position of Governor of
Bataan on October 11 , 1993. Petitioners then filed with Us a
petition for certiorari and prohibition with writ of preliminary
injunction to annul the said Resolution of the respondent
COMELEC on various grounds. They urged that section 70 of
R.A. 7160 allowing recall through the initiative of the PRAC is
unconstitutional because: (1) the people have the sole and
exclusive right to decide whether or not to initiate proceedings,
and (2) it violated the right of elected local public officials
belonging to the political minority to equal protection of law.
They also argued that the proceedings followed by the PRAC in
passing Resolution No. I suffered from numerous defects, the
most fatal of which was the deliberate failure to send notices of
the meeting to sixty-five (65) members of the assembly. On
September 7, 1993, We required the respondents to file their
Comments within a non-extendible period of ten (10) days. 5 On
September 16, 1993, We set petition for hearing on September
21, 1993 at 11 A.M. After the hearing, We granted the petition
on ground that the sending of selective notices to members of
the PRAC violated the due process protection of the
Constitution and fatally flawed the enactment of Resolution No.
1. We ruled:
xxx xxx xxx
After deliberation, the Court opts not to
resolve the alleged constitutional infirmity
of sec. 70 of R.A. No. 7160 for its
resolution is not unavoidable to decide the
merits of the petition. The petition can be
decided on the equally fundamental issues
of: (1) whether or not all the members of
the Preparatory Recall Assembly were
 notified of its meeting; and (2) assuming patriotism of the legislative, by which the law is passed, and the
lack of notice, whether or not it would Chief Executive, by whom the law is
vitiate the proceedings of the assembly approved,8 For upholding the Constitution is not the
including its Resolution No. 1. responsibility of the judiciary alone but also the duty of the
legislative and executive.9 To strike down a law as
unconstitutional, there must be a clear and unequivocal
The failure to give notice to all members of
showing that what the fundamental law prohibits, the statute
the assembly, especially to the members
permits.10 The annulment cannot be decreed on a doubtful, and
known to be political allies of petitioner
arguable implication. The universal rule of legal hermeneutics is
Garcia was admitted by both counsels of
that all reasonable doubts should be resolved in favor of the
the respondents. They did not deny that
constitutionality of a law. 11
only those inclined to agree with the
resolution of recall were notified as a
matter of political strategy and security. Recall is a mode of removal of a public officer by the people
They justified these selective notices on before the end of his term of office. The people's prerogative to
the ground that the law does not remove a public officer is an incident of their sovereign power
specifically mandate the giving of notice. 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
We reject this submission of the
affairs. 12 Not undeservedly, it is frequently described as a
respondents. The due process clause of
fundamental right of the people in a representative
the Constitution requiring notice as an
democracy. 13
element of fairness is inviolable and should
always be considered as part and parcel of
every law in case of its silence. The need Recall is a mode of removal of elective local officials made its
for notice to all the members of the maiden appearance in our 1973 Constitution. 14 It was
assembly is also imperative for these mandated in section 2 of Article XI entitled Local
members represent the different sectors of Government, viz:
the electorate of Bataan. To the extent that
they are not notified of the meeting of the
Sec. 2. The Batasang Pambansa shall
assembly, to that extent is the sovereign
enact a local government code which may
voice of the people they represent nullified.
not thereafter be amended except by a
The resolution to recall should articulate
majority vote of all its Members, defining a
the majority will of the members of the
more responsive and accountable local
assembly but the majority will can be
government structure with an effective
genuinely determined only after all the
system of recall, allocating among the
members of the assembly have been given
different local government units their
a fair opportunity to express the will of their
powers, responsibilities, and resources,
constituents. Needless to stress, the
and providing for the qualifications, election
requirement of notice is indispensable in
and removal, term, salaries, powers,
determining the collective wisdom of the
functions, and duties of local officials, and
members of the Preparatory Recall
all other matters relating to the
Assembly. Its non-observance is fatal to
organization and operation of the local
the validity of the resolution to recall
units. However, any change in the existing
petitioner Garcia as Governor of the
form of local government shall not take
province of Bataan.
effect until ratified by a majority of the
votes cast in a plebiscite called for the
The petition raises other issues that are not purpose. (Emphasis supplied)
only prima impressionis but also of
transcendental importance to the rightful
The Batasang Pambansa then enacted BP 337 entitled "The
exercise of the sovereign right of the
Local Government Code of 1983." Section 54 of its Chapter 3
people to recall their elected officials. The
provided only one mode of initiating the recall elections of local
Court shall discuss these issues in a more
elective officials, i.e., by petition of at least twenty-five percent
extended decision.
(25%) of the total number of registered voters in the local
government unit concerned, viz:
In accord with this Resolution, it appears that on September 22,
1993, the Honorable Mayor of Dinalupihan, Oscar de los Reyes
Sec. 54. By Whom Exercised; Requisites.
again sent Notice of Session to the members of the PRAC to
— (1) The power of recall shall be
"convene in session on September 26, 1993 at the town plaza
exercised by the registered voters of the
of Balanga, Bataan at 8:30 o'clock in the morning." 6 From news
unit to which the local elective official
reports, the PRAC convened in session and eighty-seven (87)
subject to such recall belongs.
of its members once more passed a resolution calling for the
recall of petitioner Garcia.7 On September 27, 1993, petitioners
filed with Us a Supplemental Petition and Reiteration of (2) Recall shall be validly initiated only
Extremely Urgent Motion for a resolution of their contention that upon petition of at least twenty-five percent
section 70 of R.A. 7160 is unconstitutional. (25%) of the total number of registered
voters in the local government unit
concerned based on the election in which
We find the original Petition and the Supplemental Petition
the local official sought to be recalled was
assailing the constitutionality of section 70 of R.A. 7160 insofar
elected.
as it allows a preparatory recall assembly initiate the recall of
local elective officials as bereft of merit.
Our legal history does not reveal any instance when this power
of recall as provided by BP 337 was exercised by our people.
Every law enjoys the presumption of validity. The presumption
rests on the respect due to the wisdom, integrity, and the
In February 1986, however, our people more than exercised
their right of recall for they resorted to revolution and they
booted of office the highest elective officials of the land.
The successful use of people power to remove public officials
who have forfeited the trust of the electorate led to its firm
institutionalization in the 1987 Constitution. Its Article XIII
expressly recognized the Role and Rights of People's
Organizations, viz:
Sec. 15. The State shall respect the role of
independent people's organizations to
enable the people to pursue and protect,
within the democratic framework, their
legitimate and collective interests and
aspirations through peaceful and lawful
means.
People's organizations are bona
fide associations of citizens with
demonstrated capacity to promote the
public interest and with identifiable
leadership, membership, and structure.
Sec. 16. The right of the people and their
organizations to effective and reasonable
participation at all levels of social, political,
and economic decision-making shall not be
abridged. The State shall, by laws,
facilitate the establishment of adequate
consultation mechanisms.
Section 3 of its Article X also reiterated the mandate for
Congress to enact a local government code which "shall
provide for a more responsive and accountable local
government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative
and
referendum. . .," viz :
Sec. 3. The Congress shall enact a local
government code which shall provide for a
more responsible and accountable local
government structure instituted through a
system of decentralization with effective
mechanisms of recall, initiative, and
referendum, allocate among the different
local government units their powers,
responsibilities, and resources, and
provide for the qualifications, election,
appointment and removal, term, salaries,
powers and functions and duties of local
officials, and all other matters relating to
the organization and operation of the local
units.
In response to this constitutional call, Congress enacted R.A.
7160, otherwise known as the Local Government Code of
1991, which took effect on January 1, 1992. In this Code,
Congress provided for a second mode of initiating the recall
process through a preparatory recall assembly which in the
provincial level is composed of all mayors, vice-mayors
and sanggunian members of the municipalities and component
cities. We quote the pertinent provisions of R.A. 7160, viz:
CHAPTER 5 — RECALL
Sec. 69. By Whom Exercised. — The
power of recall for loss of confidence shall
be exercised by the registered voters of a
local government unit to which the local
elective official subject to such recall
belongs.
Sec. 70. Initiation of the Recall Process. (a)
Recall may be initiated by a preparatory
recall assembly or by the registered voters
of the local government unit to which the
local elective official subject to such recall
belongs.
(b) There shall be a preparatory recall
assembly in every province, city, district,
and municipality which shall be composed
of the following:
(1) Provincial Level. — all mayors, vice-
mayors and sanggunian members of the
municipalities and component cities;
(2) City level. — All punong barangay and
sangguniang barangay members in the
city;
(3) Legislative District level. — In cases
where sangguniang panlalawigan
members are elected by district, all elective
municipal officials in the district; in cases
where sangguniang panglungsod members
are elected by district , all elective
barangay officials in the district; and
(4) Municipal level. — All punong barangay
and sangguniang barangay members in
the municipality.
(c) A majority of all the preparatory recall
assembly members may convene in
session in a public place and initiate a
recall proceeding against any elective
official in the local government unit
concerned. Recall of provincial, city, or
municipal officials shall be validly initiated
through a resolution adopted by a majority
of all the members of the preparatory recall
assembly concerned during its session
called for the purpose.
(d) Recall of any elective provincial, city,
municipal, or barangay official may be
validly initiated upon petition of at least
twenty-five (25) percent of the total number
of registered voters in the local government
unit concerned during the election which in
the local official sought to be recalled was
elected.
Sec. 71. Election Recall — Upon the filing
of a valid resolution petition for with the
appropriate local office of the Comelec, the
Commission or its duly authorized
representative shall set the date of the
election on recall, which shall not be later
than thirty (30) days after the filing of the
resolution or petition recall in the case of
the barangay, city, or municipal officials,
forty-five (45) days in the case of provincial
officials. The official or officials sought to
be recalled shall automatically be
considered as duly registered candidate or
candidates to the pertinent positions and,
 like other candidates, shall be entitled to be
voted upon.
Sec. 72. Effectivity of Recall. — The recall
of an elective local official shall be effective
only upon the election and proclamation of
a successor in the person of the candidate
receiving the highest number of votes cast
during the election on recall. Should the
official sought to be recalled receive the
highest number of votes, confidence in him
is thereby affirmed, and he shall continue
in office.
Sec. 73. Prohibition from Resignation. —
The elective local official sought to be
recalled shall not be allowed to resign
while the recall process is in progress.
Sec. 74. Limitations on Recall. — (a) Any
elective local official may be the subject of
a recall election only once during his term
of office for loss of confidence.
(b) No recall shall take place within one (1)
year from the date of the official's
assumption to office or one (1) year
immediately preceding regular election.
A reading of the legislative history of these recall provisions will
reveal that the idea of empowering a preparatory recall
assembly to initiate the recall from office of local elective
officials originated from the House of Representatives A
reading of the legislative history of these recall provisions will
reveal that the idea of empowering a preparatory recall
assembly to initiate the recall from office of local elective
officials, originated from the House of Representatives and not
the Senate. 15 The legislative records reveal there were two (2)
principal reasons why this alternative mode of initiating the
recall process thru an assembly was adopted, viz: (a) to
diminish the difficulty of initiating recall thru the direct action of
the people; and (b) to cut down on its expenses. 16 Our
lawmakers took note of the undesirable fact that the
mechanism initiating recall by direct action of the electorate
was utilized only once in the City of Angeles, Pampanga, but
even this lone attempt to recall the city mayor failed. Former
Congressman Wilfredo Cainglet explained that this initiatory
process by direct action of the people was too cumbersome,
too expensive and almost impossible to
implement. 17 Consequently, our legislators added in the a
second mode of initiating the recall of local officials thru a
preparatory recall assembly. They brushed aside the argument
that this second mode may cause instability in the local
government units due to its imagined ease.
We have belabored the genesis of our recall law for it can light
up many of the unillumined interstices of the law. In resolving
constitutional disputes, We should not be beguiled by foreign
jurisprudence some of which are hardly applicable because
they have been dictated by different constitutional settings and
needs. Prescinding from this proposition, We shall now resolve
the contention of petitioners that the alternative mode of
allowing a preparatory recall assembly to initiate the process of
recall is unconstitutional.
It is first postulated by the petitioners that "the right to recall
does not extend merely to the prerogative of the electorate to
reconfirm or withdraw their confidence on the official sought to
be recalled at a special election. Such prerogative necessarily
includes the sole and exclusive right to decide on whether to
initiate a recall proceedings or not." 18
We do not agree. Petitioners cannot point to any specific
provision of the Constitution that will sustain this submission.
To be sure, there is nothing in the Constitution that will remotely
suggest that the people have the "sole and exclusive right to
decide on whether to initiate a recall proceeding." The
Constitution did not provide for any mode, let alone a single
mode, of initiating recall elections. 19 Neither did it prohibit the
adoption of multiple modes of initiating recall elections. The
mandate given by section 3 of Article X of the Constitution is for
Congress to "enact a local government code which shall
provide for a more responsive and accountable local
government structure through a system of decentralization
with effective mechanisms of recall, initiative, and
referendum . . ." By this constitutional mandate, Congress was
clearly given the power to choose the effective mechanisms of
recall as its discernment dictates. The power given was to
select which among the means and methods of initiating recall
elections are effective to carry out the judgment of the
electorate. Congress was not straightjacketed to one particular
mechanism of initiating recall elections. What the Constitution
simply required is that the mechanisms of recall, whether one
or many, to be chosen by Congress should be effective. Using
its constitutionally granted discretion, Congress deemed it wise
to enact an alternative mode of initiating recall elections to
supplement the former mode of initiation by direct action of the
people. Congress has made its choice as called for by the
Constitution and it is not the prerogative of this Court to
supplant this judgment. The choice may be erroneous but even
then, the remedy against a bad law is to seek its amendment or
repeal by the legislative. By the principle of separation of
powers, it is the legislative that determines the necessity,
adequacy, wisdom and expediency of any law. 20
Petitioners also positive thesis that in passing Resolution 1, the
Bataan Preparatory Recall Assembly did not only initiate the
process of recall but had de facto recalled petitioner Garcia
from office, a power reserved to the people alone. To quote the
exact language of the petitioners: "The initiation of a recall
through the PRA effectively shortens and ends the term of the
incumbent local officials. Precisely, in the case of Gov. Garcia,
an election was scheduled by the COMELEC on 11 October
1993 to determine who has the right to assume the unexpired
portion of his term of office which should have been until June
1995. Having been relegated to the status of a mere candidate
for the same position of governor (by operation of law) he has,
therefore, been effectively recalled." 21 In their Extremely Urgent
Clarificatory Manifestation, 22 petitioners put the proposition
more bluntly stating that a "PRA resolution of recall is the re call
itself."
Again, the contention cannot command our concurrence.
Petitioners have misconstrued the nature of the initiatory
process of recall by the PRAC. They have embraced the view
that initiation by the PRAC is not initiation by the people. This is
a misimpression for initiation by the PRAC is also initiation by
the people, albeit done indirectly through their representatives.
It is not constitutionally impermissible for the people to act
through their elected representatives. Nothing less than the
paramount task of drafting our Constitution is delegated by the
people to their representatives, elected either to act as a
constitutional convention or as a congressional constituent
assembly. The initiation of a recall process is a lesser act and
there is no rhyme or reason why it cannot be entrusted to and
exercised by the elected representatives of the people. More
far out is petitioners' stance that a PRA resolution of recall is
the recall itself. It cannot be seriously doubted that a PRA
resolution of recall merely, starts the process. It is part of the
process but is not the whole process. This ought to be self
evident for a PRA resolution of recall that is not submitted to
the COMELEC for validation will not recall its subject official.
Likewise, a PRA resolution of recall that is rejected by the
people in the election called for the purpose bears no effect
whatsoever. The initiatory resolution merely sets the stage for
the official concerned to appear before the tribunal of the
people so he can justify why he should be allowed to continue
in office. Before the people render their sovereign judgment,
the official concerned remains in office but his right to continue
in office is subject to question. This is clear in section 72 of the
Local Government Code which states that "the recall of an
elective local official shall be effective only upon the election
and proclamation of a successor in the person of the candidate
receiving the highest number of votes cast during the election
on recall."
We shall next settle the contention of petitioners that the
disputed law infracts the equal protection clause of the
Constitution. Petitioners asseverate:
5.01.2. It denied petitioners the equal
protection of the laws for the local officials
constituting the majority party can
constitute itself into a PRA and initiate the
recall of a duly elected provincial official
belonging to the minority party thus
rendering ineffectual his election by
popular mandate. Relevantly, the assembly
could, to the prejudice of the minority (or
even partyless) incumbent official,
effectively declare a local elective position
vacant (and demand the holding of a
special election) for purely partisan political
ends regardless of the mandate of the
electorate. In the case at bar, 64 of the 74
signatories to the recall resolution have
been political opponents of petitioner
Garcia, not only did they not vote for him
but they even campaigned against him in
the 1992 elections.
Petitioners' argument does not really assail the law but its
possible abuse by the members of the PRAC while exercising
their right to initiate recall proceedings. More specifically, the
fear is expressed that the members of the PRAC may inject
political color in their decision as they may initiate recall
proceedings only against their political opponents especially
those belonging to the minority. A careful reading of the law,
however, will ineluctably show that it does not give an
asymmetrical treatment to locally elected officials belonging to
the political minority. First to be considered is the politically
neutral composition of the preparatory recall assembly. Sec. 70
(b) of the Code provides:
Sec. 70. Initiation of the Recall Process. (a)
Recall may be initiated by a preparatory
recall assembly or by the registered voters
of the local government unit to which the
local elective official subject to such recall
belongs.
(b) There shall be a preparatory recall
assembly in every province, city, district,
and municipality which shall be composed
of the following:
(1) Provincial level. — All mayors, vice-
mayors and sanggunian members of the
municipalities and component cities;
(2) City level. — All punong barangay and
sangguniang barangay members in the
city;
(3) Legislative District Level. — In cases
where sangguniang panlalawigan
members are elected by district, all elective
municipal officials in the district; and in
cases where sangguniang panglungsod
members are elected by district, all elective
barangay officials in the district; and
(4) Municipal level. — All punong barangay
and sangguniang barangay members in
the municipality.
Under the law, all mayors, vice-mayors and sangguniang
members of the municipalities and component cities are made
members of the preparatory recall assembly at the provincial
level. Its membership is not apportioned to political parties. No
significance is given to the political affiliation of its members.
Secondly, the preparatory recall assembly, at the provincial
level includes all the elected officials in the province concerned.
Considering their number, the greater probability is that no one
political party can control its majority. Thirdly, sec. 69 of the
Code provides that the only ground to recall a locally elected
public official is loss of confidence of the people. The members
of the PRAC are in the PRAC not in representation of their
political parties but as representatives of the people. By
necessary implication, loss of confidence cannot be premised
on mere differences in political party affiliation. Indeed, our
Constitution encourages multi-party system for the existence of
opposition parties is indispensable to the growth and nurture of
democratic system. Clearly then, the law as crafted cannot be
faulted for discriminating against local officials belonging to the
minority.
The fear that a preparatory recall assembly may be dominated
by a political party and that it may use its power to initiate the
recall of officials of opposite political persuasions, especially
those belonging to the minority, is not a ground to strike down
the law as unconstitutional. To be sure, this argument has long
been in disuse for there can be no escape from the reality
that all powers are susceptible of abuse. The mere possibility of
abuse cannot, however, infirm per se the grant of power to an
individual or entity. To deny power simply because it can be
abused by the grantee is to render government powerless and
no people need an impotent government. There is no
democratic government that can operate on the basis of fear
and distrust of its officials, especially those elected by the
people themselves. On the contrary, all our laws assume that
officials, whether appointed or elected, will act in good faith and
will perform the duties of their office. Such presumption follows
the solemn oath that they took after assumption of office, to
faithfully execute all our laws.
Moreover, the law instituted safeguards to assure that the
initiation of the recall process by a preparatory recall assembly
will not be corrupted by extraneous influences. As explained
above, the diverse and distinct composition of the membership
of a preparatory recall assembly guarantees that all the sectors
of the electorate province shall be heard. It is for this reason
that in Our Resolution of September 21, 1993, We held that
notice to all the members of the recall assembly is a
condition sine qua non to the validity of its proceedings. The
law also requires a qualified majority of all the preparatory
recall assembly members to convene in session and in a public
place. It also requires that the recall resolution by the said
majority must be adopted during its session called for the
purpose. The underscored words carry distinct legal meanings
and purvey some of the parameters limiting the power of the
members of a preparatory recall assembly to initiate recall
proceedings. Needless to state, compliance with these
requirements is necessary, otherwise, there will be
no valid resolution of recall which can be given due course by
the COMELEC.
Furthermore, it cannot be asserted with certitude that the
members of the Bataan preparatory recall assembly voted
strictly along narrow political lines. Neither the respondent
COMELEC nor this Court made a judicial inquiry as to the
reasons that led the members of the said recall assembly to
cast a vote of lack of confidence against petitioner Garcia. That
inquiry was not undertaken for to do so would require crossing
the forbidden borders of the political thicket. Former Senator
Aquilino Pimentel, Jr., a major author of the subject law in his
book The Local Government Code of 1991: The Key to
National Development, stressed the same reason why the
substantive content of a vote of lack of confidence is beyond
any inquiry, thus:
There is only one ground for the recall of
local government officials: loss of
confidence. This means that the people
may petition or the Preparatory Recall
Assembly may resolve to recall any local
elective officials without specifying any
particular ground except loss of
confidence. There is no need for them to
bring up any charge of abuse or corruption
against the local elective officials who are
the subject of any recall petition.
In the case of Evardone vs. Commission
on Elections, et al., 204 SCRA 464, 472
(1991), the Court ruled that "loss of
confidence" as a ground for recall is a
political question. In the words of the Court,
"whether or not the electorate of the
municipality of Sulat has lost confidence in
the incumbent mayor is a political question.
Any assertion therefore that the members of the Bataan
preparatory recall assembly voted due to their political aversion
to petitioner Garcia is at best a surmise.
Petitioners also contend that the resolution of the members of
the preparatory recall assembly subverted the will of the
electorate of the province of Bataan who elected petitioner
Garcia with a majority of 12,500 votes. Again, the contention
proceeds from the erroneous premise that the resolution of
recall is the recall itself. It refuses to recognize the reality that
the resolution of recall is a mere proposal to the electorate of
Bataan to subject petitioner to a new test of faith. The proposal
will still be passed upon by the sovereign electorate of Bataan.
As this judgment has yet to be expressed, it is premature to
conclude that the sovereign will of the electorate of Bataan has
been subverted. The electorate of Bataan may or may not
recall petitioner Garcia in an appropriate election. If the
electorate re-elects petitioner Garcia, then the proposal to recall
him made by the preparatory recall assembly is rejected. On
the other hand, if the electorate does not re-elect petitioner
Garcia, then he has lost the confidence of the people which he
once enjoyed. The judgment will write finis to the political
controversy. For more than judgments of courts of law, the
judgment of the tribunal of the people is final for "sovereignty
resides in the people and all government authority emanates
from them."
In sum, the petition at bench appears to champion the
sovereignty of the people, particularly their direct right to initiate
and remove elective local officials thru recall elections. If the
petition would succeed, the result will be a return to the
previous system of recall elections which Congress found
should be improved. The alternative mode of initiating recall
proceedings thru a preparatory recall assembly is, however, an
innovative attempt by Congress to remove impediments to the
effective exercise by the people of their sovereign power to
check the performance of their elected officials. The power to
determine this mode was specifically given to Congress and is
not proscribed by the Constitution.
IN VIEW WHEREOF, the original Petition and the
Supplemental Petition assailing the constitutionality of section
70 of R.A. 7160 insofar as it allows a preparatory recall
assembly to initiate the recall process are dismissed for lack of
merit. This decision is immediately executory.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado,
Romero, Nocon and Bellosillo, JJ., concur.
Griño-Aquino, J., is on leave.
G.R. No. 140560 May 4, 2000
JOVITO O. CLAUDIO, petitioner,
vs.
COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET
AND MANAGEMENT, COMMISSION ON AUDIT and
RICHARD ADVINCULA, respondents.
G.R. No. 140714 May 4, 2000
PREPARATORY RECALL ASSEMBLY OF PASAY CITY,
herein represented by its Chairman, RICHARD
ADVINCULA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, DEPARTMENT OF
BUDGET AND MANAGEMENT, COMMISSION ON AUDIT
and HON. JOVITO O. CLAUDIO, respondents.
MENDOZA, J.:
These are petitions arising from the proceedings initiated by the
Preparatory Recall Assembly of Pasay City (PRA) in the
Commission on Elections in E.M. No. 99-005 entitled IN THE
MATTER OF THE PREPARATORY RECALL ASSEMBLY
RESOLUTION NO. 01, S-1999 ADOPTED ON 29 MAY 1999
FOR THE RECALL OF MAYOR JOVITO CLAUDIO OF PASAY
CITY. G.R. No. 140560 is a petition for certiorari and
prohibition, seeking the nullification of the resolution, 1 dated
October 18, 1999, of the COMELEC giving due course to the
petition for the recall of petitioner Jovito O. Claudio as mayor of
Pasay City. On the other hand, G.R. No. 140714 is a petition
for mandamus filed by the PRA, represented by its Chair,
Richard Advincula, to compel the COMELEC to set the date for
the holding of recall elections in Pasay City pursuant to the
aforecited resolution of the COMELEC.
The facts are as follows:
Jovito O. Claudio, petitioner in G.R. No. 140560, was the duly
elected mayor of Pasay City in the May 11, 1998 elections. He
assumed office on July 1, 1998.
Sometime during the second week of May 1999, the chairs of
several barangays in Pasay City gathered to discuss the
possibility of filing a petition for recall against Mayor Claudio for
loss of confidence. On May 19, 1999, at the residence of
barangay chair Benjamin Lim, Jr. in Barangay 11, Zone 4,
Pasay City, several barangay chairs formed an ad hoc
committee for the purpose of convening the PRA. Richard
Advincula, private respondent in G.R. No. 140560 and
petitioner in G.R. No. 140714, was designated chair.
On May 29, 1999, 1,073 members of the PRA composed of
barangay chairs, kagawads, and sangguniang kabataan chairs
of Pasay City, adopted Resolution No. 01, S-1999, entitled
RESOLUTION TO INITIATE THE RECALL OF JOVITO O.
CLAUDIO AS MAYOR OF PASAY CITY FOR LOSS OF
CONFIDENCE. In a letter dated June 29, 1999, Advincula, as
chair of the PRA, invited the Mayor, Vice-Mayor, Station
Commander, and thirteen (13) Councilors of Pasay City to
witness the formal submission to the Office of the Election
Officer on July 2, 1999 of the petition for recall.
As scheduled, the petition for recall was filed on July 2, 1999,
accompanied by an affidavit of service of the petition on the
Office of the City Mayor. Pursuant to the rules of the
COMELEC, copies of the petition were posted on the bulletin
boards of the local COMELEC office, the City Hall, the Police
Department, the public market at Libertad St. and Taft Avenue,
and at the entrance of the Sta. Clara Church on P. Burgos St.,
all in Pasay City. Subsequently, a verification of the authenticity
of the signatures on the resolution was conducted by Ligaya
Salayon, the election officer for Pasay City designated by the
COMELEC.
Oppositions to the petition were filed by petitioner Jovito O.
Claudio, Rev. Ronald Langub, and Roberto L. Angeles, alleging
procedural and substantive defects in the petition, to wit: (1) the
signatures affixed to the resolution were actually meant to show
attendance at the PRA meeting; (2) most of the signatories
were only representatives of the parties concerned who were
sent there merely to observe the proceedings; (3) the
convening of the PRA took place within the one-year prohibited
period; (4) the election case, 2 filed by Wenceslao Trinidad in
this Court, seeking the annulment of the proclamation of
petitioner Claudio as mayor of Pasay City, should first be
decided before recall proceedings against petitioner could be
filed; and (5) the recall resolution failed to obtain the majority of
all the members of the PRA, considering that 10 were actually
double entries, 14 were not duly accredited members of the
barangays, 40 sangguniang kabataan officials had withdrawn
their support, and 60 barangay chairs executed affidavits of
retraction.
In its resolution of October 18, 1999, the COMELEC granted
the petition for recall and dismissed the oppositions against it.
On the issue of whether the PRA was constituted by a majority
of its members, the COMELEC held that the 1,073 members
who attended the May 29, 1999 meeting were more than
necessary to constitute the PRA, considering that its records
showed the total membership of the PRA was 1,790, while the
statistics of the Department of Interior and Local Government
(DILG) showed that the total membership of the PRA was
1,876. In either case, since only a majority is required to
constitute the PRA, clearly, a majority had been obtained in
support of the recall resolution. Based on the verification made
by election officer Ligaya Salayon, the COMELEC found the
signatures of 958 members of the PRA sufficient. On whether
the pendency of the case questioning the proclamation of
petitioner was a prejudicial question which must first be decided
before any recall election could be held, the COMELEC ruled
that it was not and that petitioner was merely using the
pendency of the case to delay the recall proceedings. Finally,
on whether the petition for recall violated the bar on recall
within one year from the elective official's assumption of office,
the COMELEC ruled in the negative, holding that recall is a
process which starts with the filing of the petition for recall.
Since the petition was filed on July 2, 1999, exactly one year
and a day after petitioner Claudio's assumption of office, it was
held that the petition was filed on time.
Hence, these petitions. Oral arguments were held in these
cases in Baguio City on April 4, 2000, after which the Court, by
the vote of 8 to 6 of its members, 3 resolved to dismiss the
petition in G.R. No. 140560 for lack of showing that the
COMELEC committed a grave abuse of discretion. On the
other hand, the Court unanimously dismissed the petition in
G.R. No. 140714 on the ground that the issue raised therein
had become moot and academic.
We now proceed to explain the grounds for our resolution.
In its Resolution No. 3121, dated March 9, 2000, the
COMELEC set the date of the recall elections in Pasay City on
April 15, 2000. Consequently, the petition for mandamus in
G.R. No. 140714 to compel the COMELEC to fix a date for the
recall elections in Pasay City is no longer tenable. We are thus
left with only petitioner Claudio's action for certiorari and
prohibition.
The bone of contention in this case is §74 of the Local
Government Code (LCG) 4 which provides:
Limitations on Recall. — (a) Any elective
local official may be the subject of a recall
election only once during his term of office
for loss of confidence.
(b) No recall shall take place within one (1)
year from the date of the official's
assumption to office or one (1) year
immediately preceding a regular local
election.
As defined at the hearing of these cases on April 4, 2000, the
issues are:
WHETHER, under Section 74 of the Local
Government Code of 1991 (R.A. No. 7160)
....
A. The word "recall" in paragraph (b)
covers a process which includes the
convening of the Preparatory Recall
Assembly and its approval of the recall
resolution.
B. The term "regular local election" in the
last clause of paragraph (b) includes the
election period for that regular election or
simply the date of such election.
(1)
On Whether the Word "Recall" in
Paragraph (b) of §74 of the Local
Government Code Includes the Convening
of the Preparatory Recall Assembly and
the Filing by it of a Recall Resolution.
Petitioner contends that the term "recall" in §74(b) refers to a
process, in contrast to the term "recall election" found in §74(a),
which obviously refers to an election. He claims that "when
several barangay chairmen met and convened on May 19,
1999 and unanimously resolved to initiate the recall, followed
by the taking of votes by the PRA on May 29, 1999 for the
purpose of adopting a resolution "to initiate the recall of Jovito
Claudio as Mayor of Pasay City for loss of confidence," the
process of recall began" and, since May 29, 1999 was less
than a year after he had assumed office, the PRA was illegally
convened and all proceedings held thereafter, including the
filing of the recall petition on July 2, 1999, were null and void.
The COMELEC, on the other hand, maintains that the process
of recall starts with the filing of the petition for recall and ends
with the conduct of the recall election, and that, since the
petition for recall in this case was filed on July 2, 1999, exactly
one year and a day after petitioner's assumption of office, the
recall was validly initiated outside the one-year prohibited
period.
Both petitioner Claudio and the COMELEC thus agree that the
term "recall" as used in §74 refers to a process. They disagree
only as to when the process starts for purposes of the one-year
limitation in paragraph (b) of §74.
We can agree that recall is a process which begins with the
convening of the preparatory recall assembly or the gathering
of the signatures at least 25% of the registered voters of a local
government unit, and then proceeds to the filing of a recall
resolution or petition with the COMELEC, the verification of
such resolution or petition, the fixing of the date of the recall
election, and the holding of the election on the scheduled
date. 5 However, as used in paragraph (b) of §74, "recall" refers
to the election itself by means of which voters decide whether
they should retain their local official or elect his replacement.
Several reasons can be cited in support of this conclusion.
First, §74 deals with restrictions on the power of recall. It is in
fact entitled "Limitations on Recall." On the other hand, §69
provides that "the power of recall . . . shall be exercised by the
registered voters of a local government unit to which the local
elective official belongs." Since the power vested on the
electorate is not the power to initiate recall proceedings 6 but
the power to elect an official into office, the limitations in §74
cannot be deemed to apply to the entire recall proceedings. In
other words, the term "recall" in paragraph (b) refers only to the
recall election, excluding the convening of the PRA and the
filing of a petition for recall with the COMELEC, or the gathering
of the signatures of at least 25 % of the voters for a petition for
recall.
Thus, there may be several PRAs held (as in the case of
Bataan Province in 1993) or petitions for recall filed with the
COMELEC — there is no legal limit on the number of times
such processes may be resorted to. These are merely
preliminary steps for the purpose of initiating a recall. The
limitations in §74 apply only to the exercise of the power of
recall which is vested in the registered voters. It is this — and
not merely the preliminary steps required to be taken to initiate
a recall — which paragraph (b) of §74 seeks to limit by
providing that no recall shall take place within one year from the
date of assumption of office of an elective local official.
Indeed, this is the thrust of the ruling in Garcia
v. COMELEC 7 where two objections were raised against the
legality of PRAs: (1) that even the power to initiate recall
proceedings is the sole prerogative of the electorate which
cannot be delegated to PRAs, and (2) that by vesting this
power in a PRA, the law in effect unconstitutionally authorizes it
to shorten the term of office of incumbent elective local officials.
Both objections were dismissed on the ground that the holding
of a PRA is not the recall itself. With respect to the first
objection, it was held that it is the power to recall and not the
power to initiate recall that the Constitution gave to the people.
With respect to the second objection, it was held that a recall
resolution "merely sets the stage for the official concerned
before the tribunal of the people so he can justify why he
should be allowed to continue in office. [But until] the people
render their sovereign judgment, the official concerned remains
in office . . . ."
If these preliminary proceedings do not produce a decision by
the electorate on whether the local official concerned continues
to enjoy the confidence of the people, then, the prohibition in
paragraph (b) against the holding of a recall, except one year
after the official's assumption of office, cannot apply to such
proceedings.
The second reason why the term "recall" in paragraph (b) refers
to recall election is to be found in the purpose of the limitation
itself. There are two limitations in paragraph (b) on the holding
of recalls: (1) that no recall shall take place within one year
from the date of assumption of office of the official concerned,
and (2) that no recall shall take place within one year
immediately preceding a regular local election.
The purpose of the first limitation is to provide a reasonable
basis for judging the performance of an elective local official. In
the Bower case 8 cited by this Court in Angobung
v. COMELEC, 9 it was held that "The only logical reason which
we can ascribe for requiring the electors to wait one year
before petitioning for a recall election is to prevent premature
action on their part in voting to remove a newly elected official
before having had sufficient time to evaluate the soundness of
his policies and decisions." The one-year limitation was
reckoned as of the filing of a petition for recall because the
Municipal Code involved in that case expressly provided that
"no removal petition shall be filed against any officer or until he
has actually held office for at least twelve months." But
however the period of prohibition is determined, the principle
announced is that the purpose of the limitation is to provide a
reasonable basis for evaluating the performance of an elective
local official. Hence, in this case, as long as the election is held
outside the one-year period, the preliminary proceedings to
initiate a recall can be held even before the end of the first year
in office of a local official.
It cannot be argued that to allow recall proceedings to be
initiated before the official concerned has been in office for one-
year would be to allow him to be judged without sufficient basis.
As already stated, it is not the holding of PRA nor the adoption
of recall resolutions that produces a judgment on the
performance of the official concerned; it is the vote of the
electorate in the election that does. Therefore, as long as the
recall election is not held before the official concerned has
completed one year in office, he will not be judged on his
performance prematurely.
Third, to construe the term "recall" in paragraph (b) as including
the convening of the PRA for the purpose of discussing the
performance in office of elective local officials would be to
unduly restrict the constitutional right of speech and of
assembly of its members. The people cannot just be asked on
the day of the election to decide on the performance of their
officials. The crystallization and formation of an informed public
opinion takes time. To hold, therefore, that the first limitation in
paragraph (b) includes the holding of assemblies for the
exchange of ideas and opinions among citizens is to unduly
curtail one of the most cherished rights in a free society.
Indeed, it is wrong to assume that such assemblies will always
eventuate in a recall election. To the contrary, they may result
in the expression of confidence in the incumbent.
Our esteemed colleague Justice Puno says in his dissent that
the purpose of the one-year period in paragraph (b) is to
provide the local official concerned a "period of repose" during
which "[his] attention should not be distracted by any
impediment, especially by disturbance due to political
partisanship." Unfortunately, the law cannot really provide for a
period of honeymoon or moratorium in politics. From the day an
elective official assumes office, his acts become subject to
scrutiny and criticism, and it is not always easy to determine
when criticism of his performance is politically motivated and
when it is not. The only safeguard against the baneful and
enervating effects of partisan politics is the good sense and self
restraint of the people and its leaders against such
shortcomings of our political system. A respite from partisan
politics may have the incidental effect of providing respite from
partisanship, but that is not really the purpose of the limitation
on recall under the law. The limitation is only intended to
provide a sufficient basis for evaluating and judging the
performance of an elected local official.
In any event, it is argued that the judgments of PRAs are not
"as politically unassailable as recalls initiated directly by the
people." Justice Puno cites the "embarrassing repudiation by
the people of [Kaloocan City's] Preparatory Recall Assembly"
when, instead of ousting Mayor Rey Malonzo, they reelected
him.
Two points may be made against this argument.
One is that it is no disparagement of the PRA that in the
ensuing election the local official whose recall is sought is
actually reelected. Laws converting municipalities into cities
and providing for the holding of plebiscites during which the
question of cityhood is submitted to the people for their
approval are not always approved by the people. Yet, no one
can say that Congress is not a good judge of the will of the
voters in the locality. In the case of recall elections in Kaloocan
City, had it been shown that the PRA was resorted to only
because those behind the move to oust the incumbent mayor
failed to obtain the signatures of 25% of the voters of that city to
a petition for his recall, there may be some plausibility for the
claim that PRAs are not as good a gauge of the people's will as
are the 25 % of the voters.
Indeed, recalls initiated directly by 25% of the registered voters
of a local government unit cannot be more representative of the
sentiments of the people than those initiated by PRAs whose
members represent the entire electorate in the local
government unit. Voters who directly initiate recalls are just as
vulnerable to political maneuverings or manipulations as are
those composing PRAs.
The other point regarding Justice Puno's claim is that the
question here is not whether recalls initiated by 25% of the
voters are better. The issue is whether the one-year period of
limitation in paragraph (b) includes the convening of the PRA.
Given that question, will convening the PRA outside this period
make it any more representative of the people, as the petition
filed by 25% of the registered voters is claimed to be?
To sum up, the term "recall" in paragraph (b) refers to the recall
election and not to the preliminary proceedings to initiate recall
—
1. Because §74 speaks of limitations on
"recall" which, according to §69, is a power
which shall be exercised by the registered
voters of a local government unit. Since the
voters do not exercise such right except in
an election, it is clear that the initiation of
recall proceedings is not prohibited within
the one-year period provided in paragraph
(b);
2. Because the purpose of the first
limitation in paragraph (b) is to provide
voters a sufficient basis for judging an
elective local official, and final judging is
not done until the day of the election; and
3. Because to construe the limitation in
paragraph (b) as including the initiation of
recall proceedings would unduly curtail
freedom of speech and of assembly
guaranteed in the Constitution.
As the recall election in Pasay City is set on April 15, 2000,
more than one year after petitioner assumed office as mayor of
that city, we hold that there is no bar to its holding on that date.
(2)
On Whether the Phrase "Regular Local
Election" in the Same Paragraph (b) of §74
of the Local Government Code includes
the Election Period for that Regular
Election or Simply the Date of Such
Election.
Petitioner contends, however, that the date set by the
COMELEC for the recall election is within the second period of
prohibition in paragraph (b). He argues that the phrase "regular
local elections" in paragraph (b) does not only mean "the day of
the regular local election" which, for the year 2001 is May 14,
but the election period as well, which is normally at least forty
five (45) days immediately before the day of the election.
Hence, he contends that beginning March 30, 2000, no recall
election may be held.
This contention is untenable.
The law is unambiguous in providing that "[n]o recall shall take
place within . . . one (1) year immediately preceding a regular
local election." Had Congress intended this limitation to refer to
the campaign period, which period is defined in the Omnibus
Election Code, 10 it could have expressly said so.
Moreover, petitioner's interpretation would severely limit the
period during which a recall election may be held. Actually,
because no recall election may be held until one year after the
assumption of office of an elective local official, presumably on
June 30 following his election, the free period is only the period
from July 1 of the following year to about the middle of May of
the succeeding year. This is a period of only nine months and
15 days, more or less. To construe the second limitation in
paragraph (b) as including the campaign period would reduce
this period to eight months. Such an interpretation must be
rejected, because it would devitalize the right of recall which is
designed to make local government units "more responsive and
accountable."
Indeed, there is a distinction between election period and
campaign period. Under the Omnibus Election Code, 11 unless
otherwise fixed by the COMELEC, the election period
commences ninety (90) days before the day of the election and
ends thirty (30) days thereafter. Thus, to follow petitioner's
interpretation that the second limitation in paragraph (b)
includes the "election period" would emasculate even more a
vital right of the people.
To recapitulate the discussion in parts 1 and 2, §74 imposes
limitations on the holding of recall elections. First, paragraph (a)
prohibits the holding of such election more than once during the
term of office of an elective local official. Second, paragraph (b)
prohibits the holding of such election within one year from the
date the official assumed office. And third, paragraph (b)
prohibits the holding of a recall election within one year
immediately preceding a regular local election. As succinctly
stated in Paras v. COMELEC, 12 "[p]aragraph (b) construed
together with paragraph (a) merely designates the period when
such elective local official may be subject to recall election, that
is, during the second year of office."
(3)
 On Whether the Recall RESOLUTION was
Signed by a Majority of the PRA and Duly
Verified.
Petitioner alleges other grounds for seeking the annulment of
the resolution of the COMELEC ordering the holding of a recall
election. He contends that a majority of the signatures of the
members of the PRA was not obtained because 74 members
did not really sign the recall resolution. According to petitioner,
the 74 merely signed their names on pages 94-104 of the
resolution to signify their attendance and not their concurrence.
Petitioner claims that this is shown by the word "Attendance"
written by hand at the top of the page on which the signatures
of the 74 begin.
This contention has no basis. To be sure, this claim is being
raised for the first time in this case. It was not raised before the
COMELEC, in which the claim made by petitioner was that
some of the names in the petition were double entries, that
some members had withdrawn their support for the petition,
and that Wenceslao Trinidad's pending election protest was a
prejudicial question which must first be resolved before the
petition for recall could be given due course. The order of the
COMELEC embodying the stipulations of the parties and
defining the issues to be resolved does not include the issue
now being raised by petitioner.
Although the word "Attendance" appears at the top of the page,
it is apparent that it was written by mistake because it was
crossed out by two parallel lines drawn across it. Apparently, it
was mistaken for the attendance sheet which is a separate
document. It is absurd to believe that the 74 members of the
PRA who signed the recall resolution signified their attendance
at the meeting twice. It is more probable to believe that they
signed pages 94-104 to signify their concurrence in the recall
resolution of which the pages in question are part.
The other point raised by petitioner is that the recall petition
filed in the COMELEC was not duly verified, because Atty.
Nelson Ng, who notarized it, is not commissioned as notary
public for Pasay City but for Makati City. As in the case of the
first claim, this issue was not raised before the COMELEC
itself. It cannot, therefore, be raised now.
WHEREFORE, G.R. No. 140560 is DISMISSED for lack of
merit, while the petition in G.R. No. 140714 is DISMISSED for
having been rendered moot and academic.
SO ORDERED.
G.R. No. 212584, November 25, 2014
ALROBEN J. GOH, Petitioner, v. HON. LUCILO R. BAYRON
AND COMMISSION ON ELECTIONS, Respondents.
DECISION
CARPIO, J.:
The Case
This case is a Petition for Certiorari1 with prayer for the
issuance of a preliminary mandatory injunction filed by Alroben
J. Goh (Goh) assailing Resolution Nos. 9864 and 9882 issued
by the Commission on Elections (COMELEC).
Resolution No. 9864, 2 promulgated on 1 April 2014, affirmed
the recommendation of the Office of the Deputy Executive
Director (ODEDO). The ODEDO found the petition seeking the
recall (recall petition) of Mayor Lucilo R. Bayron (Mayor
Bayron), the incumbent mayor of Puerto Princesa City,
sufficient in form and substance. However, Resolution No. 9864
suspended all proceedings under the recall petition because
the Financial Services Department (FSD) of the COMELEC
raised an issue as to the funding of the entire process of recall.
The COMELEC Chairman and all COMELEC
Commissioners3 signed Resolution No. 9864 without any
separate opinion.
Resolution No. 9882, 4 promulgated on 27 May 2014,
suspended any proceeding relative to recall as the recall
process, as stated in said Resolution, does not have an
appropriation in the General Appropriations Act of 2014 (2014
GAA)5 and the 2014 GAA does not provide the COMELEC with
legal authority to commit public funds for the recall process.
Unlike Resolution No. 9864, five COMELEC Commissioners
signed Resolution No. 9882 with a comment or a separate
opinion.6chanrobleslaw
The Facts
On 17 March 2014, Goh filed before the COMELEC a recall
petition, docketed as SPA EM No. 14-004 (RCL), 7 against
Mayor Bayron due to loss of trust and confidence brought about
by “gross violation of pertinent provisions of the Anti-Graft and
Corrupt Practices Act, gross violation of pertinent provisions of
the Code of Conduct and Ethical Standards for Public Officials,
Incompetence, and other related gross inexcusable
negligence/dereliction of duty, intellectual dishonesty and
emotional immaturity as Mayor of Puerto Princesa
City.”ChanRoblesVirtualawlibrary
On 1 April 2014, the COMELEC promulgated Resolution No.
9864. Resolution No. 9864 found the recall petition sufficient in
form and substance, but suspended the funding of any and all
recall elections until the resolution of the funding issue. We
reproduce the text of Resolution No. 9864 below:
WHEREAS, the Commission is mandated to enforce all laws
and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall;
WHEREAS, a petition for the recall of Mayor Lucilo Bayron of
Puerto Princesa City, Palawan, is pending before this
Commission, and has been reviewed by the [ODEDO] and
submitted to the en banc through a Memorandum dated 24
March 2014, to wit:
After review of the reports/findings of EO Gapulao, the ODEDO
recommends to the Commission the issuance of a Resolution
certifying to the SUFFICIENCY of the petition for recall of
Mayor Lucilo R. Baron [sic] of Puerto Princesa City, Palawan.
WHEREAS, Section 75 of the Local Government Code (LGC)
of 1991 provides for the source of funding for the conduct of
recall elections, to wit:
Section 75. Expenses Incident to Recall Elections. – All
expenses incidental to recall elections shall be borne by the
COMELEC. For this purpose, there shall be included in the
annual General Appropriations Act a contingency fund at the
disposal of the COMELEC for the conduct of recall elections.
WHEREAS, Section 31 of COMELEC Resolution No. 7505
decrees that all expenses incident to recall elections shall be
borne by the Commission, pursuant to Section 75 of the LGC.
WHEREAS, a Memorandum from the Finance Services
Department dated 24 March 2014 raised an issue as to the
funding of the entire process of recall;
NOW THEREFORE, the Commission on Elections, by virtue of
the powers vested in it by the Constitution, the Local
Government Code, as amended, the Omnibus Election Code,
Republic Act No. 9244, and other elections laws, RESOLVED,
as it hereby RESOLVES, to AFFIRM the recommendation of
the ODEDO as to the SUFFICIENCY of the Recall Petition filed
against Mayor Lucilo R. Bayron of Puerto Princesa City,
Palawan.
 the crucial question: does the 2014 GAA [Footnote 3 - Republic
RESOLVED FURTHER, considering that the FSD has raised Act No. 10633] include such contingency fund in the
an issue as to the funding of any and all recall elections, any Commission’s appropriations?
proceeding in furtherance thereof, including the verification
process, is hereby SUSPENDED until the funding issue shall II. The Commission does not have an
have been resolved. appropriation or line item budget
to serve as a contingency fund for
SO ORDERED.8 the conduct of recall elections
On 28 April 2014, Mayor Bayron filed with the COMELEC an under the 2014 GAA.
Omnibus Motion for Reconsideration and for
Clarification9 which prayed for the dismissal of the recall petition A careful review of the Commission’s budget under the 2014
for lack of merit. GAA reveals that it does not have any appropriation or line item
budget (line item) to serve as a contingency fund for the
On 19 May 2014, Goh filed a Comment/Opposition (To the 27 conduct of recall elections. While the Commission has a line
April 2014 Omnibus Motion for Reconsideration and for item for the “Conduct and supervision of elections,
Clarification) with Motion to Lift Suspension 10 which prayed for referenda, recall votes and plebiscites” under the Program
the COMELEC’s denial of Mayor Bayron’s 27 April 2014 category of its 2014 budget in the amount of
Omnibus Motion, as well as to direct COMELEC’s authorized Php1,401,501,000.00, the said amount cannot be considered
representative to immediately carry out the publication of the as “an appropriation made by law” as required by the
recall petition against Mayor Bayron, the verification process, Constitution [Footnote 4 – Art. VI, Section 29 (1)] nor a
and the recall election of Mayor Bayron. contingent fund provided under the LGC considering that the
said line item is legally intended to finance the basic continuing
staff support and administrative operations of the Commission
On 27 May 2014, COMELEC promulgated Resolution No. such as salaries of officials and employees as well as essential
9882, as follows: office maintenance and other operating expenses. As such, it
This refers to the petition for recall against Mayor Lucilo Bayron cannot be used for the actual conduct of recall elections.
of the City of Puerto Princesa, Province of Palawan. In
Resolution No. 9864, while the Commission en banc affirmed Under the Revised Administrative Code, an appropriation may
the recommendation of the Office of the Deputy Executive be used only for the specific purpose for which they are
Director for Operations (ODEDO) as to the sufficiency of the appropriated, to wit:
Recall Petition, it suspended further proceedings on recall until “SECTION 32. Use of Appropriated Funds. - All moneys
the funding issue raised by the Finance Services Department appropriated for functions, activities, projects and
shall have been resolved. programs shall be available solely for the specific purposes for
which these are appropriated.”
The power of recall for loss of confidence is exercised by the In prior years, including election years such as 2007, 2010 and
registered voters of a local government unit to which the local 2013, the Commission had a line item for the “Conduct and
elective official subject to such recall belongs [Footnote 1 - Sec. Supervision of Elections and other Political Exercises” under
69 of the Local Government Code]. The exercise of this power the Program category of its budget. However, the said line item
is subject to the following limitations provided for by law: (a) any was never utilized for the actual conduct of any elections or
elective local official may be the subject of a recall election only other political exercises including recall elections. Again, the
once during his term of office for loss of confidence; and (b) said line item has been consistently spent for the basic
[n]o recall shall take place within one (1) year from the date of continuing staff support and administrative operations of the
the official’s assumption to office or one (1) year immediately Commission. This is because on top of the line item for the
preceding a regular election [Footnote 2 - Section 74 of the “Conduct and Supervision of Elections and other Political
Local Government Code]. Because of the cost implications Exercises” under the Program category, separate line items
involved, the achievability of pursuing a recall proceeding to its were provided by Congress for the conduct of the “National and
conclusion will depend on the availability of funds at the Local Elections,” “SK and Barangay Elections” as well as
disposal of the Commission on Elections (the Commission). “Overseas Absentee Voting” under the Locally Funded Projects
(Project) category of the Commission’s 2007, 2010 and 2013
The conduct of recall is one of several constitutional mandates budget, to wit:chanroblesvirtuallawlibrary
of the Commission.  Unfortunately, it cannot now proceed with
the conduct of recall elections as it does not have an
Item
appropriation or legal authority to commit public funds for the Item Budget
Year/GA Budget
purpose. Amount under Amount
A under
Projects
Program
I. All expenses incident to Recall
elections shall be for the account National
P5,128,969,0
of the Commission. 2007 Conduct P957,294,000 and Local
00
and Elections
It is important to note that the Local Government Code (LGC) Supervisio SK and
n of   P2,130,969,0
specifically provides for the expenses in the conduct of recall Barangay
Elections 00
elections, to wit: Elections
“SECTION 75. Expenses Incident to Recall Elections. - All and Other
expenses incident to recall elections shall be borne by the Political Overseas
COMELEC. For this purpose, there shall be included in the Exercises Absentee P238,421,000
annual General Appropriations Act a contingency fund at the       Voting
disposal of the COMELEC for the conduct of recall election.”      
Hence, the Commission is mandated to shoulder ALL expenses Conduct Automated
relative to the conduct of recall elections. Expenses in recall and P1,101,072,0 National P5,216,536,0
2010
elections, unlike the other exercises mandated by the Supervisio 00 and Local 00
[C]onstitution to be administered by the Commission, is n of Elections
specifically treated in a special law - the LGC. Section 75 of the Elections SK and
and Other P3,241,535,0
LGC likewise requires the annual General Appropriations Act Barangay
Political 00
(GAA) to include a contingency fund at the disposal of the Elections
Commission for the conduct of recall elections. This leads us to Exercises Overseas P188,086,000
 Absentee Section 29 (1) of the 1987 Constitution that “No money shall be
Voting paid out of the Treasury except in pursuance of an
Synchroniz appropriation made by law.” The same prohibition is reiterated
ed National, in the Government Auditing Code of the Philippines [Footnote 9
Conduct P1,452,752,0 P4,585,314,0 - Presidential Decree No. 1445].
2013 Local and
and 00 00
ARMM
Supervisio Elections III. Augmentation is Not Possible.
n of
SK and
Elections P1,175,098,0 III. a.) There is no Line Item for Recall
    Barangay
and Other 00
Elections
Political Elections in the 2014 GAA.
Exercises Overseas
    Absentee P105,036,000 Article VI, Section 25 (5) of the Constitution empowers the
Voting Chairman of the Commission, along with other heads of the
Constitutional Departments and Commissions, to augment any
Thus, all expenses relative to the actual conduct of elections item in the general appropriations law, to wit:
were charged against the specific line items for “National and “No law shall be passed authorizing any transfer of
Local Elections,” “SK and Barangay Elections” and “Overseas appropriations; however, the President, the President of the
Absentee Voting” under the Locally Funded Projects category Senate, the Speaker of the House of Representatives, the
and not against the separate line item for the “Conduct and Chief Justice of the Supreme Court, and the heads of
Supervision of Elections and other Political Exercises” under Constitutional Commissions may, by law, be authorized to
the Program category. augment any item in the general appropriations law for their
respective offices from savings in other items of their respective
This brings us to the relevance of classifying an agency’s appropriations.”
budget into two major categories - Programs and Projects. Clearly, there are three (3) requisites for the valid exercise of
Their definitions are found in the 2014 Budget of Expenditures the power to augment, namely:chanroblesvirtuallawlibrary
and Sources of Financing (BESF) submitted by the President to
Congress as required by the Constitution [Footnote 5 - Article 1. There must be a law authorizing the Chairman to augment;
VII, Sec. 22]. In the Glossary of Terms attached to the 2014
BESF, a “Program” [Footnote 6 - Page 1015] is defined as “a 2. There must be a deficient existing line item in the general
homogenous group of activities necessary for the performance appropriations law to be augmented; and
of a major purpose for which a government agency is
established, for the basic maintenance of the agency’s 3. There must be savings on the part of the Commission.
administrative operations or for the provisions of staff support
to agency’s administrative operations or for the provisions of While there is a law authorizing the Chairman to augment a
staff support to the agency’s line functions.” On the other hand, deficient appropriation (Sec. 67, General Provisions of the
“Projects” are defined as “[s]pecial agency undertakings which 2014 GAA), there is no existing line item in the Commission’s
are to be carried out within a definite time frame and which are budget for the actual conduct of a recall elections [sic]. Thus,
intended to result [in] some pre-determined measures of goods augmentation is not possible in this case.
and services.”ChanRoblesVirtualawlibrary
III. b.) Recall Elections is not one of
Moreover, in the Organizational Performance Indicator the Specific Purposes and Priorities
Framework (OPIF) Reference Guide issued by the Department for Augmentation under the 2014 GAA.
of Budget and Management (DBM) itself, a “Program” is
defined as “an integrated group of activities that contribute to a Granting arguendo that the line item for the “Conduct and
particular continuing objective of a department/agency.” supervision of elections, referenda, recall votes and plebiscites”
[Footnote 7 - Page 36] under the Program category of the Commission’s 2014 budget
is also a line item for the conduct of recall elections, still,
Hence, a budget under the category of “Program” is intended to augmentation cannot be made within the bounds of the law.
finance the regular day-to-day activities of the Commission for Under Sec. 69 of the General Provisions of the 2014 GAA,
the continuing basic maintenance of its administrative there are priorities in the use of savings, and [the conduct of]
operations. Those activities are regularly undertaken by the recall elections is not one of them, to wit:
Commission regardless of whether or not an election or any “Sec. 69. Priority in the Use of Savings. In the use of savings,
political exercises are being administered by the Commission. priority shall be given to the augmentation of the amounts set
With respect to budget under the category of “Project”, it is aside for the payment of compensation, year-end bonus and
intended to fund the special undertakings or activities of the cash gift, retirement gratuity, terminal leave benefits, old age
Commission which are not carried out on a regular day-to-day pension of veterans and other personnel benefits authorized by
basis such as the actual administration of elections and other law, and those expenditure items authorized in agency special
political exercises including recall elections. Hence, it is illegal provisions and in other sections of the General Provisions in
to proceed with any activity falling within the definition of this Act.”
“Project” by using the budget intended to finance the activities Most importantly, under the 2014 GAA’s Special Provisions for
within the scope of “Program.” The only instance when the the Commission, the Chairman’s power to augment is limited to
Constitution allows the budget intended for “Program” to be specific purposes only, which purposes do not include recall
used for “Project” is when there is a valid augmentation. elections, to wit:
“2. Use of Savings. The COMELEC, through its Chairperson, is
Clearly, thus, the Commission’s appropriations in the 2014 authorized to use savings from its appropriations to cover
GAA does [sic] not include any line item for a contingency fund actual deficiencies incurred for the current year and for the
for the specific purpose of conducting recall elections. In fact, following purposes: (i) printing and/or publication of decisions,
the same has been true for all appropriations of the resolutions, and training information materials; (ii) repair,
Commission since 2005. maintenance and improvement of central and regional offices,
facilities and equipment; (iii) purchase of equipment, books,
Allocating funds for the purpose of conducting recall elections journals and periodicals; (iv) necessary expenses for the
would not only be illegal under the Supreme Court ruling employment of temporary, contractual and casual employees;
in Brillantes, Jr. v. Commission on Elections [Footnote 8 – G.R. and (v) payment of extraordinary and miscellaneous expenses,
No. 163193, 15 June 2004], it would likewise, and more representation and transportation allowances, and other
importantly, run afoul [of] the prohibition under Article VI,
authorized benefits of its officials and employees, subject to
pertinent budgeting, accounting and auditing rules and
regulations.”
Notably, the latter restriction aforequoted under the 2014 GAA
is new and absent from General Appropriations Acts of
previous years. Hence, in the past, the Chairman could
augment ANY deficient items in the Commission’s budget. But
with the present legislative restrictions, augmentation is limited
to certain purposes which, unfortunately, do not include recall
elections.
IV. Personal and Criminal Liabilities for
Violation of the GAA and the Revised
Penal Code.
Not only will the use of the Commission’s current funds for the
conduct of recall elections be unconstitutional, it would likewise
open the responsible officials to possible personal and criminal
liabilities.
Section 17 of the General Provisions of the 2014 GAA provides
for the use of the current year’s appropriation and spells out the
liability that will be faced by any official or employee who will
authorize, allow or permit, as well as those who are negligent in
the performance of their duties and functions which resulted in
the incurrence of obligations or commitments by the
government in violation of the provision of law, to wit:
“Sec. 17. Use of the Current Year’s Appropriations. All
departments, bureaus and offices of the National Government,
including Constitutional Offices enjoying fiscal autonomy and
SUCs shall ensure that appropriations in this Act shall be
disbursed only for the purposes authorized herein and incurred
during the current year. x x x.
Officials and employees who will authorize, allow or permit, as
well as those who are negligent in the performance of their
duties and functions which resulted in the incurrence of
obligations or commitments by the government in violation of
this provision shall be personally liable to the government for
the full amount obligated or committed, and subject to
disciplinary actions in accordance with Section 43, Chapter 5
and Section 80, Chapter 7, Book VI of E.O. No. 292, and to
appropriate criminal action under existing laws.”
It should be emphasized that mere utilization of a public fund to
any public use other than for which such fund was appropriated
by law is considered as a criminal act under Article 220 of the
Revised Penal Code even if no damage has resulted to the
public, to wit:
“Article 220. Illegal use of public funds or property. - Any public
officer who shall apply any public fund or property under his
administration to any public use other than for which such fund
or property were appropriated by law or ordinance shall suffer
the penalty of prision correccional in its minimum period or a
fine ranging from one-half to the total of the sum misapplied, if
by reason of such misapplication, any damages or
embarassment shall have resulted to the public service. In
either case, the offender shall also suffer the penalty of
temporary special disqualification.
If no damage or embarrassment to the public service has
resulted, the penalty shall be a fine from 5 to 50 per cent of the
sum misapplied.”
V. The Conduct of Recall Elections may
adversely affect the Commission’s
preparation’s [sic] for [the] 2016 National and
Local Elections.
It should be noted that the instant petition is not the only move
for the conduct of recall elections. In fact, another petition is
pending for the conduct of recall in the Province of Bulacan.
Thus, should the Commission allow the present petition to push
through, it is equivalent to opening the floodgates for numerous
other recall petitions which will result in multiple counts of
violation of the existing appropriation laws. Furthermore, the
conduct of several recall elections may adversely affect the
ongoing preparations for the conduct of the May 9, 2016
National, Local and ARMM Elections, which the Commission
has commenced as far back as December of 2013.
VI. The only Solution is the Enactment of
a Law that will Appropriate Funds for
the Conduct of Recall Elections.
One solution to the Commission’s predicament on recall is the
inclusion in the 2015 GAA of a contingency fund that may be
used by the Commission for the conduct of recall elections
pursuant to Section 75 of the LGC. Hence, in the Commission’s
budget proposal for 2015, the Commission included a budget in
the amount of Php321,570,000.00 for possible recall elections
in 2015 considering that recall elections can still be conducted
up to May of 2015.
An alternative solution is for persons interested in pursuing
recall elections to adopt actions that may lead to the passage
by Congress of a supplemental (special) appropriations law for
the FY 2014 for the conduct of recall elections. The same may
be supported by the Commission by certifying that such funds,
which are presently lacking, are necessary to defray expenses
for the holding of recall elections, pursuant to Section 11, Art.
IX(C) of the Constitution.
Relative to this matter, it is unwise to request additional funding
from the DBM. Again, Section 29(1), Article VI of the
Constitution is clear that the expenditure of public funds must
be pursuant to an appropriation made by law. Since only
Congress can enact laws [Footnote 10 – Section 1, Article VI,
Philippine Constitution], the DBM has no power to set aside
funds, more so allot to the Commission said funds, for an item
of expenditure that is not provided in the Commission’s
appropriations in the 2014 GAA.
It is likewise unwise for the Commission to request the partial
use of the One Billion Peso (PHP1,000,000,000.00) Contingent
Fund under the 2014 GAA [Footnote 11 - Page 853]. True,
Special Provision No. 1 does say that the contingent fund may
be used for “new and/or urgent projects and activities that need
to be implemented during the year.” However, it also says that
such fund “shall be administered by the office of the President.”
Given the circumstances, not a few may interpret the
Commission’s request to use such fund from the Office of the
President as an affront to the independence of this
Commission. This may in turn lead some quarters to view any
recall process funded by the said Contingent Fund as tainted
and biased. Going through with this proposal would do more
harm than good.
WHEREFORE, in view of all the foregoing, the Commission
RESOLVED, as it hereby RESOLVES, not to continue with any
proceedings relative to recall as it does not have a line item
budget or legal authority to commit public funds for the
purpose. Hence, until a law is passed by Congress
appropriating funds for recall elections – either by approving the
Commission’s budget proposal for FY 2015 or through a
supplemental (special) appropriations for FY 2014 – any
proceeding relative to the instant petition for recall should be
suspended further.
RESOLVED, further, that this Resolution shall be applied
consistently to all other petitions for recall now pending or to be
pursued by interested parties subsequent hereto.
SO ORDERED.11
Resolution No. 9882 was signed, without comment or separate
opinion, by Chairman Sixto S. Brillantes, Jr. and Commissioner
Elias R. Yusoph. Commissioner Lucenito N. Tagle voted in
favor of the resolution and filed a comment. 12 Commissioner
Christian Robert S. Lim concurred in the resolution, with the
comment that “malversation should be under Article 217 not
220 [of the Revised Penal Code].” 13 Commissioners Maria
Gracia Cielo M. Padaca,14 Al A. Parreño,15 and Luie Tito F.
Guia16 wrote separate opinions.
Commissioner Tagle stated that “in order for the Commission to
effectively undertake actions relative to recall petitions, First,
the budget proposal to Congress for the FY 2015 should
contain a specific line item appropriated for the funding of the
conduct of recall elections; or Second, if feasible, we can
request a supplemental budget from Congress for the FY 2014
to specifically answer for the funding of recall
proceedings.”17chanrobleslaw
Commissioner Padaca called for a holistic look of the GAA. She
submitted that “the allocation for the Commission in the GAA is
primarily geared toward our Constitutional mandate, that is, the
enforcement and administration of all laws and regulations
relative to the conduct of an election, plebiscite, initiative,
referendum, and recall x x x.”18 Therefore, the interpretation of
the provisions of the GAA should be read with the intent to
pursue COMELEC’s mandate. Commissioner Padaca further
pointed out that the COMELEC was “able to conduct special
elections in the first district of Ilocos Sur in 2011, Zambales in
2012, and a plebiscite for the creation of Davao Occidental in
2013, all of which lack a specific line item in the applicable
GAA. The lack of a specific appropriation or line item in the
GAA did not deter [COMELEC] from conducting and
supervising an electoral exercise that was legally called upon
by the people.”19 However, Commissioner Padaca recognized
the limitations set by Section 2 of the 2014 GAA20 on the
COMELEC’s use of its savings.
In his separate opinion, Commissioner Parreño agreed with the
factual findings of the FSD of the COMELEC and the Office of
the Chairman that the budget for the conduct of recall elections
was not in the 2014 GAA. He quoted from the 24 March 2014
Memorandum to the FSD which stated that the Department of
Budget and Management (DBM) did not include a provision for
expenses for recall elections for Fiscal Years 2013 and 2014.
The memorandum stated that:
Please be informed that for the FY 2013 and 2014, there is no
provision made by the DBM for any expenses for the recall
elections. A provision was made only in the previous years in
the total amount of P1,000,000.00. What was provided for in
our FY 2014 budget was the regular expenses for the election
activities – regular salaries of field employees and the
corresponding expenses for the regular activities of our office.21
The Office of the Chairman, on the other hand, submits the
COMELEC’s annual budget for the COMELEC En Banc’s
approval and directs and supervises the operations and internal
administrations of the COMELEC.
Commissioner Guia states that the majority opinion suggests
that recall elections can only be funded through a supplemental
budget law. He opines that the majority adopts a strict
interpretation of the budget law when it states that there is no
line item for the conduct of recall elections in the 2014 GAA.
Commissioner Guia proposes a liberal approach: that the 2014
GAA should be construed as merely failing to provide sufficient
funds for the actual conduct of recall elections, and not as
preventing COMELEC from exercising its constitutional
mandate of conducting recall elections. Commissioner Guia’s
liberal approach to interpreting the budget law makes the
remedy of funding recall elections by way of augmenting an
existing line item from savings a theoretical possibility.
Commissioner Guia, however, recognizes that the GAA’s Sec.
69 of the General Provisions and Sec. 2 of the Special
Provisions for the COMELEC22 limit the items that can be
funded from the COMELEC’s savings. He suggests that
curative legislation be made to enable COMELEC to perform its
constitutional mandate.
Goh filed the present Petition on 6 June 2014.chanrobleslaw
The Issues
In his Grounds for filing the Petition, Goh stated:
26. Petitioner respectfully moves for (a) the PARTIAL
ANNULMENT and REVERSAL of Resolution No. 9864, insofar
as the same directed the suspension of further action on the
instant Recall Petition, and (b) the ANNULMENT AND
REVERSAL of Resolution No. 9882, on the ground that in their
issuance, the respondent Commission committed grave abuse
of discretion amounting to lack or excess of jurisdiction when it
failed to rule that:
I. THE 2014 GAA PROVIDES FOR AN APPROPRIATION OR
LINE ITEM BUDGET TO SERVE AS A CONTINGENCY FUND
FOR THE CONDUCT OF RECALL ELECTIONS.
II. THE RESPONDENT COMMISSION MAY LAWFULLY
AUGMENT ANY SUPPOSED INSUFFICIENCY IN FUNDING
FOR THE CONDUCT OF RECALL ELECTIONS BY UTILIZING
ITS SAVINGS.
III. THE PROPER, ORDERLY AND LAWFUL EXERCISE OF
THE PROCESS OF RECALL IS WITHIN THE EXCLUSIVE
POWER AND AUTHORITY OF THE RESPONDENT
COMMISSION.
IV. THE FACTUAL BACKDROP OF THIS CASE DOES NOT
WARRANT NOR JUSTIFY THE DEFERMENT OF ALL
PROCEEDINGS ON RECALL PETITIONS.
27. Petitioner respectfully submits that an examination of the
merits of this case, as well as the applicable laws and
entrenched legal precepts on the legal issues presented, will
clearly establish an undeniable basis for the reversal of the
questioned Resolution Nos. 9864 and 9882.
28. Indeed, notwithstanding its finding that the Recall Petition
filed by Petitioner Goh is sufficient in form and substance,
Respondent Commission nevertheless suspended the holding
of a recall election supposedly through lack of funding.
Petitioner respectfully submits that the same is a grave
abdication and wanton betrayal of the Constitutional mandate
of the Respondent Commission and a grievous violation of the
sovereign power of the people. What the Resolution Nos. 9864
and 9882 have given with one hand (the affirmation of the
sufficiency of the Recall Petition), they have taken away with
the other (the funding issue, later claimed the issue of lack
funding).23
In his comment, Mayor Bayron provided the following grounds
for the dismissal of the petition:
I. THE 2014 GENERAL APPROPRIATIONS ACT DOES NOT
CARRY ANY SPECIFIC PARTICULAR ITEM FOR THE
CONDUCT OF RECALL ELECTIONS IN THE CITY OF
PUERTO PRINCESA, PROVINCE OF PALAWAN OR
ELSEWHERE;
A. The “power of the purse” belongs to the Congress and not
with the Commission on Elections;
B. Fiscal autonomy of the Commission on Elections operates
within the parameters of the Constitution;
C. There is no particular item for the Conduct of Recall
Elections in which to apply the provision on budget
augmentation; [and]
D. It is the Commission, in line with the present budget, that
has the authority to determine the presence and possibility of
augmentation.
II. PROGRAM AND PROJECT HAVE BEEN CLEARLY
DIFFERENTIATED BY THE COMMISSION ON ELECTIONS;
III. THE 2014 GENERAL APPROPRIATIONS ACT PRESENTS
A SPECIAL PROVISION WHICH WAS ABSENT IN THE
PREVIOUS GENERAL APPROPRIATIONS ACT THEREBY
FURTHER LIMITING THE COMELEC’S EXERCISE OF
AUGMENTATION;
 00 00
Locally-
IV. BUDGET CAN STILL BE ALLOCATED BY CONGRESS 120,816,0 225,524,0
funded 500,000 346,840,000
THROUGH THE ENACTMENT AND PASSAGE OF A 2014 00 00
Projects
SUPPLEMENTAL BUDGET OR THROUGH THE 2015
 
GENERAL APPROPRIATIONS ACT;
TOTAL NEW 1,938,044,0 571,753,0 225,524,0 2,735,321,00
V.  GOVERNMENT FUNDS SHOULD NOT BE SPENT TO APPRO. 00 00 00 030
SUPPORT ILLEGAL AND PREMATURE INSTITUTION OF Goh further pointed out that the COMELEC has
RECALL; [and] PhP1,483,087,000 appropriated under Operations, and that the
PhP1,401,501,000 for current operating expenditure is
VI. POLITICS IS A PRACTICAL MATTER, AND POLITICAL allocated per region as follows:
QUESTIONS MUST BE DEALT WITH REALISTICALLY. 24 National Capital Region 74,356,000
The COMELEC, through the Office of the Solicitor General, Region I – Ilocos 97,350,000
argued that: Region II – Cagayan Valley 69,302,000
I. RESPONDENT COMELEC EN BANC DID NOT COMMIT
Cordillera Administrative
GRAVE ABUSE OF DISCRETION IN SUSPENDING 63,120,000
Region (CAR)
PROCEEDINGS RELATIVE TO THE RECALL PETITION
FILED AGAINST RESPONDENT MAYOR LUCILO R. Region III – Central Luzon 112,896,000
BAYRON OF PUERTO PRINCESA CITY. Region IV-A – CALABARZON 183,390,000
A. The 2014 GAA does not provide for an appropriation or line Region V – Bicol 92,944,000
item to serve as contingency fund for the conduct of Recall Region VI – Western Visayas 23,252,000
Elections. Region VII – Central Visayas 108,093,000
Region VIII – Eastern Visayas 106,144,000
B.  Any activity falling within the definition of a “Project,” such
as Recall Elections, cannot validly proceed by using the budget Region IX – Zamboanga
56,636,000
intended to finance the activities within the scope of Peninsula
“Programs.”ChanRoblesVirtualawlibrary Region X – Northern Mindanao 76,864,000
Region XI – Davao 51,639,000
C.  Respondent COMELEC may not lawfully utilize its savings Region XII –
to augment any insufficiency in the funding for recall elections. 44,982,000
SOCCSKSARGEN
II. THE RECALL ELECTIONS BEING SOUGHT BY Region XIII – CARAGA 59,481,000
PETITIONER MAY PROCEED ONLY IF A LAW IS ENACTED
Autonomous Region in Muslim
APPROPRIATING FUNDS THEREFOR. 81,052,00031
Mindanao (ARMM)
III. PETITIONER IS NOT ENTITLED TO THE ISSUANCE OF A Goh further states that COMELEC’s personnel themselves
WRIT OF PRELIMINARY MANDATORY INJUNCTION. 25 admitted to the existence of a contingency fund for the lawful
The Court’s Ruling conduct of recall elections. Atty. Maria Lea R. Alarkon, Acting
Director III of the COMELEC’s FSD, during the 3 September
We grant the petition. We hold that the COMELEC committed 2013 budget hearing before the Senate’s Subcommittee A of
grave abuse of discretion in issuing Resolution Nos. 9864 and the Committee on Finance, stated:
9882. The 2014 GAA provides the line item appropriation to Your Honors, for the specifics of our MFO [Major Final Output]
allow the COMELEC to perform its constitutional mandate of budget, x x x conduct and supervision of elections,
conducting recall elections. There is no need for supplemental referenda, recall and plebiscites, 1,527,815,000; x x
legislation to authorize the COMELEC to conduct recall x.32 (Emphasis supplied)
elections for 2014. Goh also cited an online news article which quoted COMELEC
spokesperson James Jimenez saying that “lack of budget
(should) not (be) an issue. x x x We always have a ‘standby’
The COMELEC’s Fiscal Autonomy budget for recall, plebiscite, etc.” and adding that the successful
holding of any recall elections, referendum or plebiscite is the
The 1987 Constitution expressly provides the COMELEC with fundamental mandate of the COMELEC.33chanrobleslaw
the power to “[e]nforce and administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, Finally, Goh presented a letter dated 28 May 2014 from Rep.
referendum, and recall.”26 The 1987 Constitution not only Isidro T. Ungab, Chairman of the House of Representatives’
guaranteed the COMELEC’s fiscal autonomy, 27 but also Committee on Appropriations, addressed to Hon. Douglas S.
granted its head, as authorized by law, to augment items in its Hagedorn, Representative of the Third District of Palawan. The
appropriations from its savings. 28 The 2014 GAA provides such letter stated that “[t]he FY 2014 budget of the COMELEC as
authorization to the COMELEC Chairman. 29chanrobleslaw authorized in the FY 2014 General Appropriations Act amounts
to P2,735,321,000, of which P1,401,501,000 is appropriated
The COMELEC’s budget in the 2014 GAA  for the conduct and supervision of elections, referenda,
recall votes and plebiscites.”34chanrobleslaw
Goh asserts that the 2014 GAA provided COMELEC with an
appropriation for the conduct of recall elections in the total
amount of PhP2,735,321,000. As evidence, Goh reproduced The COMELEC, through the Solicitor General, classifies Goh’s
the COMELEC’s budget allocation in the 2014 GAA: assertions as misleading. To illustrate the lack of appropriation
  PS MOOE CO TOTAL or line item for a contingency fund for the conduct of recall
1,937,544,0 450,937,0 2,388,481,00 elections in the 2014 GAA, the COMELEC countered:
PROGRAMS
00 00 0 The amount of PhP1,483,087,000 referred to by [Goh] allegedly
General for the conduct and supervision of election, referenda, recall
454,457,00 276,749,0 votes and plebiscites, actually refers to operating expenditures
Administratio 731,206,000
0 00 for “Personnel Services,” under the program “Regulation of
n& Support
1,483,087,0 174,184,0 1,657,275,00 Elections.”ChanRoblesVirtualawlibrary
Operations
00 00 0
The amount of PhP1,401,501,000, on the other hand, is the
 
total amount allotted for “Personnel Services”
PROJECTS 500,000 120,816,0 225,524,0 346,840,000
(PhP1,360,975,000) and “Maintenance and Other Operating for the conduct of recall elections, we hold that the 2014 GAA
Expenses” (PhP40,526,000) for Regional Allocation. 35 actually expressly provides for a line item appropriation for
The COMELEC reiterated pertinent portions of Resolution No. the conduct and supervision of recall elections. This is
9882,36 thus: found in the Programs category of its 2014 budget, which the
x x x While x x x the Commission has a line item for the COMELEC admits in its Resolution No. 9882 is a “line item for
“Conduct and supervision of elections, referenda, recall votes the ‘Conduct and supervision of elections, referenda, recall
and plebiscites” under the Program category of its 2014 budget votes and plebiscites.’” In addition, one of the specific
in the amount of Php1,401,501,000.00, the said amount cannot constitutional functions of the COMELEC is to conduct recall
be considered as “an appropriation made by law” as required elections. When the COMELEC receives a budgetary
by the Constitution [Footnote 17 – Art. VI, Section 29 (1)] nor a appropriation for its “Current Operating Expenditures,” such
contingent fund provided under the LGC considering that the appropriation includes expenditures to carry out its
said line item is legally intended to finance the basic continuing constitutional functions, including the conduct of recall
staff support and administrative operations of the Commission elections. Thus, in Socrates v. COMELEC37 (Socrates), recall
such as salaries of officials and employees as well as essential elections were conducted even without a specific appropriation
office maintenance and other operating expenses. As such, it for recall elections in the 2002 GAA.
cannot be used for the actual conduct of recall
elections.cralawred In Socrates, the COMELEC conducted recall elections for
mayor of Puerto Princesa City, Palawan on 24 September
x x x x 2002. At the time, the COMELEC found no reason to raise any
concern as to the funding of the 24 September 2002 recall
In prior years, including election years such as 2007, 2010 and elections. The COMELEC’s budget in the 2002 GAA provided
2013, the Commission had a line item for the “Conduct and for the following:
Supervision of Elections and other Political Exercises” under New
the Program category of its budget. However, the said line item Appropriations,
       
was never utilized for the actual conduct of any elections or by Program /
other political exercises including recall elections. Again, the Project
said line item has been consistently spent for the basic Current Operating
     
continuing staff support and administrative operations of the Expenditures
Commission. This is because the top of the line item for the Maintenan
“Conduct and Supervision of Elections and other Political ce and
Personal Capital
Exercises” under the Program category, separate line items   Other Total
Services Outlays
were provided by Congress for the conduct of the “National and Operating
Local Elections,” “SK and Barangay Elections” as well as Expenses
“Overseas Absentee Voting” under the Locally Funded Projects A. PROGRAMS
(Project) category of the Commission’s 2007, 2010 and 2013 I. General
budget, to wit:chanroblesvirtuallawlibrary Administration
and Support
a. General
Item P
Item Budget Administration P P
Year/GA Budget 66,201,00
Amount under Amount and Support171,608,000 237,809,000
A under 0
Projects Services
Program
Sub-total,
Conduct National General 66,201,00
P5,128,969,0 171,608,000 237,809,000
2007 and P957,294,000 and Local Administration 0
00
Supervisio Elections and Support
n of SK and II. Support to
Elections P2,130,969,0
Barangay Operations
and Other 00
Elections a. Conduct and
Political Supervision of
Exercises Overseas
Absentee P238,421,000 Elections and6,739,000 7,830,000 14,569,000
      Other Political
      Voting
Exercises
Conduct Automated b. Legal
and P1,101,072,0 National P5,216,536,0 Services and
2010
Supervisio 00 and Local 00 Adjudication of4,255,000 1,545,000 5,800,000
n of Elections Election
Elections SK and Contests
P3,241,535,0
and Other Barangay Sub-total,
00
Political Elections Support to10,994,000 9,375,000 20,369,000
Exercises Overseas Operations
      Absentee P188,086,000 III. Operations
      Voting a. Conduct and
Synchroniz Supervision of
57,685,00
ed National, Elections and38,105,000 95,790,000
P1,452,752,0 P4,585,314,0 0
2013 Conduct Local and Other Political
and 00 00 Exercises
ARMM
Supervisio Elections b. Legal
n of Services and
SK and
Elections P1,175,098,0 Adjudication of21,629,000 4,776,000 26,405,000
    Barangay
and Other 00 Election
Elections
Political Contests
Exercises Overseas c. Conduct and
    Absentee P105,036,000 Supervision of
Voting Elections and
Despite Resolution No. 9882’s statement about the alleged Other
failure of the 2014 GAA to provide for a line item appropriation
Political 23,122,00 appropriation is still specific – to fund elections, which naturally
765,537,000 788,659,000
Exercises 0 and logically include, even if not expressly stated, not only
Sub-total, 85,583,00 regular but also special or recall elections.
825,271,000 910,854,000
Operations 0
Total, 1,007,873,0 161,159,0 1,169,032,0 The COMELEC’s Savings
Programs 00 00 00
  Nowhere in the COMELEC’s comment, however, does it
B. dispute the existence of savings. In the transcript of the hearing
PROJECT(S) for the COMELEC’s 2014 budget, the COMELEC estimated to
I. Locally- have PhP10.7 billion savings around the end of 2013. However,
500,000,0
funded 500,000,000 since the DBM did not include a line budget for certain items,
00
Project(s) Chairman Brillantes estimated that the PhP10.7 billion savings
a. For the will be reduced to about PhP2 billion after the COMELEC
modernization augments expenses for the purchase of its land, warehouse,
of Electoral building, and the overseas absentee voting. This estimate was
System made under the assumption that the 2014 GAA will provide a
b. Honorarium line item budget for the COMELEC’s land, warehouse, building,
of Election and the overseas absentee voting.
24,480,000 24,480,000
Registration
Board In his opening remarks before the Senate Committee on
c. For the Finance, Chairman Brillantes underscored the need for a line
Holding of 545,757,0 1,100,000,0 item budget for certain items that the COMELEC can
554,243,000
Barangay 00 00 subsequently augment based on its savings. Chairman
Elections Brillantes was aware that an item without a line budget cannot
Sub-total, be funded by savings.
545,757,0 500,000,0 1,624,480,0
Locally-funded 578,723,000 MR. BRILLANTES. 2014 is a non-election year, your Honor.
00 00 00
Project(s) Therefore, the budget that the Commission on Elections would
545,757,0 500,000,0 1,624,480,0 be asking will not really be too much. We, in fact, asked for five
Total, Projects 578,723,000
00 00 00 billion, which is much, much lower than all of our previous
TOTAL NEW budgets but this has been cut by the DBM to only 2.8.
P1,586,596, P706,916, P500,000, P2,793,512,
APPROPRIATI
000 000 000 000
ONS Now, 2.8 is already acceptable to the Commission on Elections.
In the 2002 GAA, the COMELEC had PhP910,854,000 There are only some slight requests that we are going to ask.
appropriated under Operations, and that the PhP788,659,000 Since the 2.8 reduction actually cut off our projects, like we
for current operating expenditure was allocated per region as intend to set up our own building and purchase land. All that we
follows: are asking is that in previous years we have been given a line
National Capital Region 41,708,000 budget for one million at least which we can augment based on
Region I 57,269,000 our savings. All that we ask is that we be given another line
item for land, building and warehouse. Even at one million each
Cordillera Administrative
34,975,000 or two million each and we will take care of the augmentation
Region
as we have enough savings which we have tried to accumulate
Region II 40,813,000 during the past years which we can set up our own land,
Region III 63,799,000 building and warehouse. So we would request that we realign,
Region IV 103,689,000 not necessarily getting from other agencies, the amount of
Region V 54,911,000 three million or six million as the case may be, but get it from
Region VI 68,236,000 the same budget that we have so that we will not touch the
budget of other agencies. We have special budget for ISSP,
Region VII 62,421,000
and this is at 226 million. We can reduce this to 220 million and
Region VIII 61,655,000 put the six million to two million each for land, building and
Region IX 48,318,000 warehouse so we can cover it.
Region X 57,308,000
Region XI – Davao 45,150,000 THE CHAIRMAN (SEN. [FRANCIS G.] ESCUDERO). Noted.
Region XII 48,407,000 Noted, Mr. Chairman. Thank you.
Under these factual circumstances, we find it difficult to justify
MR. BRILLANTES. Yes, Your Honor. In addition to this let me
the COMELEC’s reasons why it is unable to conduct recall
just point out, Your Honor, that this year, we are holding the
elections in 2014 when the COMELEC was able to conduct
barangay elections this coming October 28. While we did, in
recall elections in 2002 despite lack of the specific words
fact, ask for a budget last year for the 2013 elections for
“Conduct and supervision of x x x recall votes x x x” in the 2002
barangay, we were only given by Congress as well as the
GAA. In the 2002 GAA, the phrase “Conduct and supervision of
President 1.1 billion. What we intend [for] our budget for the
elections and other political exercises” was sufficient to fund the
October 28 barangay elections is based on our computations,
conduct of recall elections. In the 2014 GAA, there is a
3.4 billion. So on the basis of that, we are going to have to set
specific line item appropriation for the “Conduct and
aside from our own savings 2.3 billion to cover for the entire
supervision of x x x recall votes x x x.”
barangay elections. So we are setting aside 2.3 billion from our
own savings so that we can cover the 3.4 billion that we expect
More importantly, the COMELEC admits in its Resolution No.
to actually spend for the October 2013 barangay elections,
9882 that the COMELEC has “a line item for the ‘Conduct and
meaning that the 1.1 plus 2.3 would be the 3.4. Therefore, that
supervision of elections, referenda, recall votes and
would cut off into our savings but we are willing to sacrifice for
plebiscites.’” This admission of the COMELEC is a correct
this.
interpretation of this specific budgetary appropriation. To be
valid, an appropriation must indicate a specific amount and a
With this, Your Honor, we are ready to present our budget
specific purpose. However, the purpose may be specific even if
which is not really much. It is only 2.8 billion.
it is broken down into different related sub-categories of the
same nature. For example, the purpose can be to “conduct
Now, we are also – we would like also to mention by way of an
elections,” which even if not expressly spelled out covers
addition [sic] final statement, Your Honor. We were given zero
regular, special, or recall elections. The purpose of the
budget for the COAV [Committee on Overseas Absentee
Voting], the overseas voting, zero budget. We can understand
that there has been some, well, reservations in Congress as
well as the President because of the poor performance in the
COAV. However, there is a new law now which requires the
establishment of an office for the overseas voting. And this new
law provides that the coverage is supposed to allocate a certain
amount for the appropriation for this new office for COAV.
However, this law was passed after DBM had already
submitted its budget to Congress and therefore it is not
allocated. It is not provided for under the submitted budget.
Now, we have some – we can provide for some amounts again
for COAV but we would need at least another line item for this
no matter how big. We were asking for about 60 million which is
really not much. We can take it out from our own savings but
we have to have a line item also for this and then we would ask
that Congress provide – as provided for by the new law that
new amounts be given to us, even another 60 million, so we
can cover our preparations for the the overseas voting for the
2016. x x x.cralawred
x x x x
THE CHAIRMAN (SEN. ESCUDERO). x x x. Second, Mr.
Chairman, you were mentioning a while ago the savings of the
COMELEC. May we know how much exactly is the savings of
the COMELEC? Kasi kaya n’yo palang punuan yung kulang ng
barangay election. Kaya n’yo palang magpagawa ng building.
MR. BRILLANTES. Tama ho iyon. Kaya ho namin kaya lang
masasaktan ho yung bibilhin naman naming lupa at saka
building. Kasi ho 2.3 ang iaabono namin sa barangay. That is
why if you will notice, as soon as we finished the May elections,
May 2013 elections, I immediately announced that we were
praying na kung pwede i-postpone na natin yung barangay
saka SK.
provision in the special provisions to allow you to use savings
for your building or do you want an item or is it the same?
MR. BRILLANTES. We need a line item for it, Your Honor,
because we had some debates with then – of the Senate
President, who was then the Committee Finance chairman
during previous proceedings...
THE CHAIRMAN (SEN. ESCUDERO). Na?
MR. BRILLANTES. … na meron – bumibili na ho kami ng lupa,
nakapag-down payment na nga kami ng 200 million, pero wala
pala kaming line budget for purchase of land.
THE CHAIRMAN (SEN. ESCUDERO). But was there a use of
savings provisions similar to what we have in the proposed
2014 budget in 2013?
MR. BRILLANTES. Meron ho kami, yeah, we have the savings.
THE CHAIRMAN (SEN. ESCUDERO). May use of savings
provision din?
MR. BRILLANTES. Yes, we can use to augment but there has
to be a line budget. We cannot augment if it is zero. Yun ang
naging argument nun. So we ask for the Committee on Finance
then for a one million kuwan, kami na ang bahalang mag-
augment. Binigyan naman kami for 2013 for the land at saka
warehouse. Binigyan kami tigwa-one million, so we can
augment. But we did not have time to work on it ngayong 2013
because of the elections at saka meron pa hong barangay. So
we might have to make – apply this in 2014 …
THE CHAIRMAN (SEN. ESCUDERO). For that matter –
MR. BRILLANTES. … If we don’t have any line item now, we
might have a problem in 2014.

THE CHAIRMAN (SEN. ESCUDERO). I heard that but how? THE CHAIRMAN (SEN. ESCUDERO). For that matter, pwede
rin naman piso po yun, ‘di ba? Pareho lang naman. It’s the
MR. BRILLANTES. Pero sinabi ng Presidente tuloy, so tuloy same.
tayo kako. Because we only have 1.1 billion budget and we
need about three billion plus, so we know it will cut on our MR. BRILLANTES. Pwede rin ho. Pero sinasabi nga namin –
savings. Yung savings ho namin pag titgnan ho, mahaba hong
kwento yung savings namin. Pag makikita ninyo yung notes THE CHAIRMAN (SEN. ESCUDERO). All you need is an item,
ninyo, nag-uumpisa sa 10.7 billion, parang napakalaki. Pero right?
hindi ho totoo iyon. Ten point seven billion, marami hong
natatanggal diyan. Natanggalan kami ng 2.3 sa barangay, MR. BRILLANTES. Sina-suggest ko nga ho kanina sa opening
marami pa ho kaming utang na hindi binabayaran, sa statement ko, meron kami dun sa ISSP na 226 million...
Smartmatic meron pa –
THE CHAIRMAN (SEN. ESCUDERO). Yun na lang din ang
THE CHAIRMAN (SEN. ESCUDERO). Wala pa ho tayo duon. pagkunan.
Sa ngayon lang ho, magkano ho yung savings ng COMELEC?
MR. BRILLANTES. … yung six million na lang ang tanggalin,
MR. BRILLANTES. Ngayon ho siguro mga 2B. gawin na lang 220, kasya na yun dun sa ISSP namin, bigyan
na lang kami ng tigto-two million dun sa six, hindi kami kukuha
THE CHAIRMAN (SEN. ESCUDERO). Binawas n’yo na yung sa ibang agencies, sa amin din.
2.4 sa barangay.
THE CHAIRMAN (SEN. ESCUDERO). Within the agency din?
MR. BRILLANTES. Tanggal ng lahat po yung barangay, yung
mga utang na dapat naming bayaran, obligasyon. At saka iyon MR. BRILLANTES. Yes, para hindi ho tayo magkaproblema.
ni-reserve namin, in-obligate na namin para sa lupa at saka sa
building … THE CHAIRMAN (SEN. ESCUDERO). That’s for two items,
right?
THE CHAIRMAN (SEN. ESCUDERO). Sa building.
MR. BRILLANTES. Yes.
MR. BRILLANTES. … which is about three.cralawred
THE CHAIRMAN (SEN. ESCUDERO). Two or three items?
x x x x
MR. BRILLANTES. Actually, four ho yun, tatlo sa –
THE CHAIRMAN (SEN. ESCUDERO). Now, two more points,
Mr. Chairman. On the use of savings within the NEP as THE CHAIRMAN (SEN. ESCUDERO). Land, building –
provided for, nakalagay ho dito yung reuse of savings ninyo for
repair, for printing, for purchase of equipment. Ang sinasabi MR. BRILLANTES. Land, building and warehouse, tapos yung
niyo po, ang kailangan may provision. Are you asking for a overseas kasama pa ho.

THE CHAIRMAN (SEN. ESCUDERO). Pang-apat yung OAV?
MR. BRILLANTES. Pang-apat ho yun. 38
The COMELEC’s Alleged Lack of Authority
to Augment the “Project” “Recall Elections” from Savings
Despite the PhP2 billion to PhP10.7 billion savings existing in
the COMELEC’s coffers, the COMELEC asserts that it cannot
legally fund the exercise of recall elections. The power to
augment from savings lies dormant until authorized by
law.39 Flexibility in the use of public funds operates only upon
legislative fiat.
x x x However, to afford the heads of the different branches of
the government and those of the constitutional commissions
considerable flexibility in the use of public funds and resources,
the constitution allowed the enactment of a law authorizing the
transfer of funds for the purpose of augmenting an item from
savings in another item in the appropriation of the government
branch or constitutional body concerned. The leeway granted
was thus limited. The purpose and conditions for which funds
may be transferred were specified, i.e. transfer may be allowed
for the purpose of augmenting an item and such transfer may
be made only if there are savings from another item in the
appropriation of the government branch or constitutional body.40
The COMELEC cited the following provisions in the 2014 GAA
to justify its lack of authority to augment expenses for the
conduct of recall elections from its existing savings:
Special Provisions for the COMELEC
2. Use of Savings. The COMELEC, through its Chairperson, is
hereby authorized to use savings from its appropriations
to cover actual deficiencies incurred for the current
year and for the following purposes: (i) printing and/or
publication of decisions, resolutions, and training information
materials; (ii) repair, maintenance and improvement of central
and regional offices, facilities and equipment; (iii) purchase of
equipment, books, journals and periodicals; (iv) necessary
expenses for the employment of temporary, contractual and
casual employees; and (v) payment of extraordinary and
miscellaneous expenses, representation and transportation
allowances, and other authorized benefits of its officials and
employees, subject to pertinent budgeting, accounting and
auditing rules and regulations.
General Provisions in the 2014 GAA
Sec. 67. Use of Savings. The President of the Philippines, the
Senate President, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, the
Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to
use savings in their respective appropriations to
augment actual deficiencies incurred for the current year
in any item of their respective appropriations.
Sec. 68. Meaning of Savings and Augmentation. Savings refer
to portions or balances of any programmed appropriation in this
Act free from any obligation or encumbrance which are (i) still
available after the completion or final discontinuance or
abandonment of the work, activity or purpose for which the
appropriation is authorized; (ii) from appropriation balances
arising from unpaid compensation and related costs pertaining
to vacant positions and leaves of absence without pay; and (iii)
from appropriation balances realized from the implementation
of measures resulting in improved systems and efficiencies and
thus enabled agencies to meet and deliver the required or
planned targets, programs and services approved in this Act at
a lesser cost.
Augmentation implies the existence in this Act of a
program, activity, or project with an appropriation, which
upon implementation or subsequent evaluation of needed
resources, is determined to be deficient. In no case shall a
non-existent program, activity, or project be funded by
augmentation from savings or by the use of appropriations
otherwise authorized in this Act.
Sec. 69. Priority in the Use of Savings. In the use of savings,
priority shall be given to the augmentation of the amounts set
aside for the payment of compensation, year-end bonus and
cash gift, retirement gratuity, terminal leave benefits, old-age
pension of veterans and other personnel benefits authorized by
law, and those expenditure items authorized in agency
special provisions and in other sections of the General
Provisions in this Act. (Boldfacing and underscoring supplied)
Commissioner Guia, in his Separate Opinion, stressed the
disconnection between the COMELEC’s mandate and the lack
of a line budget item for the conduct of recall elections.
At this point let it be stated that there is a provision in the GAA
limiting the items that can be funded from realignment of
savings. See Section 69 of the General Provisions and Section
2 of the Special Provision for COMELEC in the 2014 GAA.
Providing for the conduct of recall votes is not one of them. This
limitation effectively establishes a clash between the
COMELEC’s constitutional mandate as an independent
constitutional body to administer recall elections and the power
of Congress to appropriate public funds.
This clash can simply be avoided by a curative legislation that
would enable COMELEC to perform its constitutional mandate
while at the same time recognizing the power of Congress to
allocate public funds. Unless there are other lawful means by
which the conduct of recall elections can be funded,
COMELEC’s hands are tied by the way the GAA is worded.
The ball is now in the hands of Congress. 41
Resolution No. 9882 proposed alternative sources for funding
recall elections:
One solution to the Commission’s predicament on recall is the
inclusion in the 2015 GAA of a contingency fund that may be
used by the Commission for the conduct of recall elections
pursuant to Section 75 of the LGC. Hence, in the Commission’s
budget proposal for 2015, the Commission included a budget in
the amount of Php321,570,000.00 for possible recall elections
in 2015 considering that recall elections can still be conducted
up to May of 2015.
An alternative solution is for persons interested in pursuing
recall elections to adopt actions that may lead to the passage
by Congress of a supplemental (special) appropriations law for
the FY 2014 for the conduct of recall elections. The same may
be supported by the Commission by certifying that such funds,
which are presently lacking, are necessary to defray expenses
for the holding of recall elections, pursuant to Section 11, Art.
IX(C) of the Constitution.42
There is no clash between the COMELEC and Congress. We
reiterate that the 2014 GAA provides a line item
appropriation for the COMELEC’s conduct of recall
elections. Since the COMELEC now admits that it does not
have sufficient funds from its current line item appropriation for
the “Conduct and supervision of x x x recall votes x x x” to
conduct an actual recall election, then there is therefore
an actual deficiency in its operating funds for the current year.
This is a situation that allows for the exercise of the COMELEC
Chairman’s power to augment actual deficiencies in the item for
the “Conduct and supervision of x x x recall votes x x x” in its
budget appropriation.
The COMELEC, in Resolution No. 9882, admitted the existence
of a line item appropriation for the “Conduct and supervision of
x x x recall votes x x x”:
A careful review of the Commission’s budget under the 2014
GAA reveals that it does not have any appropriation or line item
budget (line item) to serve as a contingency fund for the
conduct of recall elections. While the Commission has a line
item for the “Conduct and supervision of elections, referenda,
recall votes and plebiscites” under the Program category of its
2014 budget in the amount of Php1,401,501,000.00, the said
amount cannot be considered as “an appropriation made by
law” as required by the Constitution [Footnote 4 – Art. VI,
Section 29 (1)] nor a contingent fund provided under the LGC
considering that the said line item is legally intended to finance
the basic continuing staff support and administrative operations
of the Commission such as salaries of officials and employees
as well as essential office maintenance and other operating
expenses. As such, it cannot be used for the actual conduct of
recall elections. (Emphasis supplied)
However, contrary to the COMELEC’s assertion, the
appropriations for personnel services and maintenance
and other operating expenses falling under “Conduct and
supervision of elections, referenda, recall votes and
plebiscites” constitute a line item which can be augmented from
the COMELEC’s savings to fund the conduct of recall elections
in 2014.  The conduct of recall elections requires only operating
expenses, not capital outlays. The COMELEC’s existing
personnel in Puerto Princesa are the same personnel who will
evaluate the sufficiency of the recall petitions and conduct the
recall elections.43chanrobleslaw
Moreover, the line item appropriation for the “Conduct and
supervision of x x x recall votes x x x” in the 2014 GAA is
sufficient to fund recall elections. There is no constitutional
requirement that the budgetary appropriation must be loaded in
“contingent funds.” The Congress has plenary power to lodge
such appropriation in current operating expenditures.
Going back to the circumstances of the 2002 recall elections in
Puerto Princesa, the 2002 GAA provided for the following:
1. Special Audit. The appropriations herein authorized for the
Commission for registration, plebiscite, referendum and
election purposes shall be used exclusively for the purpose for
which these are intended. Special Audit shall be undertaken by
the Commission on Audit (COA) on all expenses for printing
jobs, materials and paraphernalia to be used for registration,
plebiscite, referendum and election purposes. Copies of the
COA report shall be furnished the Legislature within one month
after such audit.
2. Augmentation of the Appropriations for Barangay Elections.
The appropriations authorized herein for the holding of
barangay elections may be augmented by COMELEC savings
not exceeding Three Hundred Million Pesos (P300,000,000.00)
if upon implementation or subsequent evaluation, the needed
resources for the holding of said election is determined to be
deficient.
3. Appropriations for Programs and Specific Activities. The
amounts herein appropriated for the programs of the agency
shall be used specifically for the following activities in the
indicated amounts and conditions: x x x.
General Provisions in the 2002 GAA
Sec. 51. Modification of Expenditure Components. Unless
specifically authorized in this Act, no change or modification
shall be made in the expenditure items authorized in this Act
and other appropriations laws unless in cases of augmentations
from savings in appropriations as authorized under Section
25(5), Article VI of the 1987 Philippine Constitution.
53. Use of Savings. The President of the Philippines, the
President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, the
Heads of Constitutional Commissions under Article IX of the
1987 Constitution, the Ombudsman, and the Chairman of the
Commission on Human Rights are hereby authorized to
augment any item in this Act for their respective offices
from savings in other items of their respective
appropriations.
Sec. 54. Meaning of Savings and Augmentation. Savings refer
to portions or balances of any programmed appropriation in this
Act free from any obligation or encumbrance still available after
the completion or final discontinuance or abandonment of the
work, activity or purpose for which the appropriation is
authorized, or arising from unpaid compensation and related
costs pertaining to vacant positions and leaves of absence
without pay.
Augmentation implies the existence in this Act of an item,
project, activity, or purpose with an appropriation which
upon implementation or subsequent evaluation of needed
resources is determined to be deficient. In no case,
therefore, shall a non-existent item, project, activity, purpose or
object of expenditure be funded by augmentation from savings
or by the use of appropriations otherwise authorized in this Act.
Sec. 55. Priority in the Use of Savings. In the use of savings,
priority shall be given to the augmentation of the amounts set
aside for compensation, year-end bonus and cash gift,
retirement gratuity, terminal leave benefit, old-age pension of
veterans and other personnel benefits authorized by law, and
those expenditure items authorized in agency Special
Provisions and in Section 16 and in other Sections of the
General Provisions of this Act. (Boldfacing and underscoring
supplied)
We thus find unnecessary the COMELEC’s protests regarding
the difference between “Projects” and “Programs” for their
failure to allocate funds for any recall process in 2014.
x x x The constitutional test for validity is not how itemized the
appropriation is down to the project level but whether the
purpose of the appropriation is specific enough to allow the
President to exercise his line-item veto power. Section 23,
Chapter 4, Book VI of the Administrative Code provides
a stricter requirement by mandating that there must be a
corresponding appropriation for each program and for each
project. A project is a component of a program which may have
several projects. A program is equivalent to the specific
purpose of an appropriation. An item of appropriation for
school-building is a program, while the specific schools to be
built, being the identifiable outputs of the program, are the
projects. The Constitution only requires a corresponding
appropriation for a specific purpose or program, not for
the sub-set of projects or activities.44 (Emphasis supplied)
Considering that there is an existing line item appropriation for
the conduct of recall elections in the 2014 GAA, we see no
reason why the COMELEC is unable to perform its
constitutional mandate to “enforce and administer all laws and
regulations relative to the conduct of x x x recall.” 45 Should the
funds appropriated in the 2014 GAA be deemed insufficient,
then the COMELEC Chairman may exercise his authority to
augment such line item appropriation from the COMELEC’s
existing savings, as this augmentation is expressly authorized
in the 2014 GAA.
WHEREFORE, the petition is GRANTED.
[G.R. No. 134096. March 3, 1999.]
JOSEPH PETER S. SISON, Petitioner, v. COMMISSION ON
ELECTIONS, Respondents.
DECISION
ROMERO, J.:
Before this Court is a petition for certiorari under Rule 65 of the
Revised Rules of Court which impugns the Resolution 1 of
public respondent Commission on Elections (COMELEC) dated
June 22, 1998 that dismissed petitioner Joseph Peter S.
Sison’s earlier petition 2 in SPC No. 98-134, entitled "In the
Matter of the Petition to Suspend the Canvassing of Votes
and/or Proclamation in Quezon City and to Declare a Failure of
Elections." chanroblesvirtuallawlibrary
It appears that while the election returns were being canvassed
by the Quezon City Board of Canvassers but before the
winning candidates were proclaimed, petitioner commenced
suit before the COMELEC by filing a petition seeking to
suspend the canvassing of votes and/or proclamation in
Quezon City and to declare a failure of elections. The said
petition was supposedly filed pursuant to Section 6 3 of the
Omnibus Election Code (Batas Pambansa Blg. 881, as
amended) on the ground of "massive and orchestrated fraud
and acts analogous thereto which occurred after the voting and
during the preparation of election returns and in the custody or
canvass thereof, which resulted in a failure to elect." 4
In support of his allegation of massive and orchestrated fraud,
petitioner cited specific instances which are summarized and
set forth below:chanrob1es virtual 1aw library
1. The Board of Canvassers announced that election returns
with no inner seal would be included in the canvass;
2. Board of Election Inspectors brought home copies of election
returns meant for the City Board of Canvassers;
3. Petitioner, through counsel, raised written objections to the
inclusion in the canvass of election returns which were either
tampered with, altered or falsified, or otherwise not authentic;
4. According to the minutes of the City Board of Canvassers,
there were precincts with missing election returns;
5. Several election returns with no data on the number of votes
cast for vice mayoralty position;
6. Highly suspicious persons sneaking in some election returns
and documents into the canvassing area;
7. Concerned citizen found minutes of the counting, keys, locks
and metal seal in the COMELEC area for disposal as trash;
8. Board of Election Inspectors have volunteered information
that they placed the copy of the election returns meant for the
City Board of Canvassers in the ballot boxes deposited with the
City Treasurer allegedly due to fatigue and lack of sleep;
9. Ballot boxes were never in the custody of the COMELEC and
neither the parties nor their watchers were allowed to enter the
restricted area where these boxes passed through on the way
to the basement of the City Hall where they were supposedly
kept; and
10. In the election in Barangay New Era, there was a clear
patters of voting which would show that the election returns
were manufactured and that no actual voting by duly qualified
voters took place therein.
While the petition was pending before the COMELEC, the City
Board of Canvassers proclaimed the winners of the elections in
Quezon City, including the winning candidate for the post of
vice mayor. On June 22, 1998, the COMELEC promulgated its
challenged resolution dismissing the petition before it on the
ground (1) that the allegations therein were not supported by
sufficient evidence, and (2) the grounds recited were not
among the pre-proclamation issues set fourth in Section 17 of
Republic Act No. 7166. 5 position contested, the question of whether the petition raised
Hence this petition.
Alleging that COMELEC overstepped the limits of reasonable
exercise of discretion in dismissing SPC No. 98-134, petitioner
argues in the main that the electoral body failed to afford him
basic due process, that is, the right to a hearing and
presentation of evidence before ruling on his petition. He then
proceeded to argue that the election returns themselves, as
well as the minutes of the canvassing committee of the City
Board of Canvassers were, by themselves, sufficient evidence
to support the petition.
Upon a meticulous study of the parties’ arguments together
with the pertinent statutory provisions and jurisprudence, this
Court is of the opinion that there is no compelling reason why
we should withhold our imprimatur from the questioned
resolution.
At the outset, we notice that petitioner exhibits an ambivalent
stand as to what exactly is the nature of the remedy he availed
of at the time he initiated proceedings before the COMELEC in
SPC No. 98-134. At the start, he anchors his initiatory petition
under Section 6 6 of the Omnibus Election Code regarding
failure of elections but he later builds his case as a pre-
proclamation controversy which is covered by Sections 241-
248 of the Omnibus Election Code, as amended by R.A. No.
7166. 7 In this respect, the rule is, what conjointly determine
the nature of a pleading are the allegations therein made in
good faith, the stage of the proceeding at which it is filed, and
the primary objective of the party filing the same.
In any case, petitioner nonetheless cannot succeed in either of
the remedies he opted to pursue. Recently, in Matalam v.
Commission on Elections, 8 we have already declared that a
pre-proclamation controversy is not the same as an action for
annulment of election results or declaration of failure of
elections, founded as they are on different grounds.
Under the pertinent codal provision of the Omnibus Election
Code, there are only three (3) instances where a failure of
elections may be declared, namely: (a) the election in any
polling place has not been held on the date fixed on account of
force majeure, violence, terrorism, fraud, or other analogous
causes; (b) the election in any polling place had been
suspended before the hour fixed by law for the closing of the
voting on account of force majeure, violence, terrorism, fraud,
or other analogous causes; or (c) after the voting and during
the preparation and transmission of the election returns or in
the custody or canvass thereof, such election result in a failure
to elect on account of force majeure, violence, terrorism , fraud,
or other analogous causes. 9 (Emphasis supplied) We have
painstakingly examined petitioner’s petition before the
COMELEC but found nothing therein that could support an
action for declaration of failure of elections. He never alleged at
all that elections were either not held or suspended.
Furthermore, petitioner’s claim of failure to elect stood as a
bare conclusion bereft of any substantive support to describe
just exactly how the failure to elect came about.
With respect to pre-proclamation controversy, it is well to note
that the scope of pre-proclamation controversy is only limited to
the issues enumerated under Section 243 10 of the Omnibus
Election Code, and the enumeration therein is restrictive and
exclusive. 11 The reason underlying the delimitation both of
substantive ground and procedure is the policy of the election
law that pre-proclamation controversies should be summarily
decided, consistent with the law’s desire that the canvass and
proclamation be delayed as little as possible. 12 That is why
such questions which require more deliberate and necessarily
longer consideration, are left for examination in the
corresponding election protest. 13
However, with the proclamation of the winning candidate for the
issues proper for a pre-proclamation controversy is already of
no consequence since the well-entrench rule in such situation
is that a pre-proclamation case before the COMELEC is no
longer viable, the more appropriate remedies being a regular
election protest or a petition for quo warranto. 14 We have
carefully reviewed all recognized exceptions 15 to the foregoing
rule but found nothing that could possibly apply to the instant
case based on the recitations of the petition. What is more, in
paragraph 3 of the COMELEC’s Omnibus Resolution No. 3049
(Omnibus Resolution on Pending Cases) dated June 29, 1998,
it is clearly stated therein that "All other pre-proclamation cases
. . . shall be deemed terminated pursuant to Section 16, R. A.
7166. 16 (Emphasis supplied). Section 16 which is referred to
in the aforecited omnibus resolution refers to the termination of
pre-proclamation cases when the term of office involved has
already begun, which is precisely what obtains here. We are, of
course aware that petitioner cites the said omnibus resolution in
maintaining that his petition is one of those cases which should
have remained active pursuant to paragraph 4 thereof. That
exception, however operates only when what is involved is not
a pre-proclamation controversy such as petition for
disqualification, failure of elections or analogous cases. But as
we have earlier declared, his petition, though, assuming to seek
a declaration of failure of elections, is actually a case of pre-
proclamation controversy and, hence, not falling within the
ambit of the exception. In any case, that omnibus resolution
would not have been applied in the first place because that was
issued posterior to the date when the herein challenge
resolution was promulgated which is June 22, 1998. There was
no provision that such omnibus resolution should have
retroactive effect.chanrobles.com:cralaw:red
Finally, as to petitioner’s claim that he was deprived of his right
to due process in that he was not allowed to present his
evidence before the COMELEC to support his petition, the
same must likewise fail.
First, we note that his citation of Section 242 of the Omnibus
Election Code as basis for his right to present his evidence is
misplaced. The phrase "after due notice" refers only to a
situation where the COMELEC decides and, in fact, takes steps
to either partially or totally suspend or annul the proclamation of
any candidate-elect. Verba legis non est recedendum. From the
words of the statute there should be no departure. The
statutory provision cannot be expanded to embrace any other
situation not contemplated therein such as the one at bar where
the COMELEC is not taking any step to suspend or annul a
proclamation.
Second, presentation of evidence before the COMELEC is not
at all indispensable in order to satisfy the demands of due
process. Under the amendment introduced by R.A. No. 7166,
particularly Section 18 thereof, all that is required now is that
the COMELEC shall dispose of pre-proclamation controversies
"on the basis of the records and evidence elevated to it by the
board of canvassers." This is but in keeping with the policy of
the law that cases of this nature should be summarily decided
and the will of the electorate as reflected on the election returns
be determined as speedily as possible. What exactly those
records and evidence are upon which the COMELEC based its
resolution and how they have been appreciated in respect of
their sufficiency, are beyond this Court’s scrutiny. But we have
reason to believe, owing to the presumption of regularity of
performance of official duty and the precept that factual findings
of the COMELEC based on its assessments and duly
supported by gathered evidence, are conclusive upon the court,
that the COMELEC did arrive at its conclusion with due regard
to the available evidence before it. That this is so can, in fact,
be gleaned from petitioner’s own allegation and admission in
his petition that "the election returns themselves as well as the
minutes of the Canvassing Committees and the City Board of
Canvassers . . . are in the possession of the COMELEC." 17
He even cites paragraph (g), Section 20 of the Omnibus
Election Code to validate such allegation. Hence, it is not really
correct to say that the COMELEC acted without evidentiary
basis at all or that petitioner was deprived of his right to due
process.
WHEREFORE, finding no grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of public respondent
Commission on Elections (COMELEC), the instant petition is
hereby DISMISSED. Consequently, the resolution of
COMELEC in SPC No. 98-134 dated June 22, 1998 is
AFFIRMED.
No costs.
SO ORDERED.chanrobles law library : red
G.R. No. 141723 April 20, 2001
NILO D. SOLIVA, ROGELIO B. DOCE, HERNANITA M.
BACQUIAL, ULYSSES B. SUCATRE, ANTONIO D. DURON,
EDUARDO HINUNANGAN, MONICA P. LASALA, CARLOS
E. MARTINEZ, and ROSIANA L. POPADERA, petitioners,
vs.
COMMISSION ON ELECTIONS, ALEXANDER C.
BACQUIAL, ISMAEL O. TITO, FAUSTINO A. ABATAYO,
DAVID P. ALEJO, MAMERTO L. BACON, CESAR C. OSA,
PRUDENCIO L. PABILLORE, ARMANDO S. PANGADLIN,
ENICETO U. SALAS, and QUINTIN A. SAY-AO, respondents.
KAPUNAN, J.:
Before us is a petition for certiorari and prohibition under Rule
65 of the Rules of Court with a prayer for the issuance of a writ
of preliminary injunction and/or temporary restraining order to
nullify and set aside the resolution of public respondent
Commission on Elections (COMELEC) dated February 11,
2000 in Comelec SPA No. 98-324, declaring a failure of
election in the entire municipality of Remedios T. Romualdez
(RTR), Agusan del Norte and nullifying the proclamation of
herein petitioners as the winning candidates in the May 11,
1998 local election. The petition also seeks to enjoin and
prohibit respondent COMELEC from enforcing and
implementing the aforesaid resolution.
The factual antecedents from which the present petition
proceeds are as follows:
Herein petitioners and private respondents vied for the local
posts in RTR during the local elections of May 11, 1998.
Petitioners belonged to the Lakas-NUCD party while private
respondents ran under the Laban ng Makabayan Masang
Pilipino (LAMMP) banner.1
On May 12, 1998, all the LAKAS candidates (herein petitioners)
were proclaimed as the winning candidates. Six days after, or
on May 18, 1998, respondent Alexander Bacquial filed a
petition to declare a failure of election due to alleged "massive
fraud, terrorism, ballot switching, stuffing of ballots in the ballot
boxes, delivery of ballot boxes by respondent Soliva, his wife
and men from several precincts to the supposed canvassing
area, failure of the counting of votes in the precincts or polling
places upon instructions of respondent Soliva and other
anomalies or irregularities, not to mention the alleged attempt
of one of Soliva’s men later on identified as Eliseo Baludio to
assasinate Mr. Bacquial when he was about to cast his vote in
Precinct 17-A in San Antonio, RTR in the early morning of May
11, 1998."2 The petition was later amended to include the other
co-candidates of respondent Bacquial in the LAMMP party.
In support of their allegations, herein private respondents
(petitioners before the COMELEC) presented the sworn
statements of witnesses Nestor Fuentes, Faustino Abatayo,
Eddie Roa, Max C. Ponce, Danilo Taculayan, Alejandre
Martinez, Enecito Salas and the joint affidavit of Alejandre
Martinez, Eddie Roa, Max Ponce, Danilo Taculayan, Rudy
Alima, Warlito Mandag and Apolinario Pesitas who all attested
to particular incidents involving alleged irregularities in certain
polling precincts.
Private respondents also submitted in evidence the Order of
the Provincial Election Supervisor, Atty. Roland Edayan, dated
May 12, 1998, directing Col. Felix P. Ayaay, the Provincial
Director of the Philippine National Police, to investigate reports
of grave threats, intimidation and coercion directed against the
supporters of mayoralty candidate respondent Bacquial. Copies
of several election returns which did not bear the signatures of
the LAMMP pollwatchers were likewise presented to prove that
such watchers were not allowed inside the municipal
gymnasium where the canvassing of votes was conducted.
Petitioners, on the other hand, denied that violence, terrorism,
fraud and other similar causes attended the conduct of the
election. To disprove private respondents’ allegations, they
appended photocopies of the Minutes of Voting and Counting
of Votes in Precinct Nos. 17-A and 16-A. They insisted that the
LAMMP pollwatchers signed the election returns; that the
Board of Election Inspectors (BEI) announced the results of the
counting and accomplished the election returns in their
respective precincts; and that these elections returns were
thereafter submitted to the Municipal Board of Canvassers
(MBC).
Petitioners also alleged that at six o’clock in the evening of May
11, 1998, the MBC convened and around one-thirty in the
morning of May 12, 1998, the canvass of election returns
started. After all election returns from the thirty-three (33)
electoral precincts had been canvassed, the MBC proclaimed
the winners.
Mr. Tago M. Mangontra, who was impleaded before the
COMELEC in his capacity as Chairman of the MBC, maintained
that a public counting was had in all the thirty-three (33)
precincts although the venue of the counting was transferred to
the multi-purpose gymnasium of the municipality. He admitted
having received a letter-protest calling for the suspension of the
canvassing due to failure of election but claimed that there was
no evidence to substantiate the allegations; and that the
grounds alleged in the letter-protest were proper in a pre-
proclamation controversy and, therefore, not within the
competence and jurisdiction of the MBC. Mangontra denied
having told a certain Ms. Faith Tanguilan that the canvassing of
votes for the local posts were finished ahead of those of the
national candidates. He likewise averred that all the candidates
and their respective representatives were duly notified of the
canvassing and that the proclamation was concluded without
any objection from the parties’ representatives.
After the arguments were heard on June 16, 1998, the parties
agreed to submit the case for resolution five (5) days thereafter,
with or without their respective memoranda.
On February 11, 2000, the COMELEC rendered the assailed
resolution declaring a failure of election in the municipality of
RTR, holding thus:
WHEREFORE, premises considered, this
petition is GRANTED. A failure of election
is hereby declared in the Municipality of
Remedios T. Romualdez, Agusan del
Norte and the proclamation of the private
respondents as the winning candidates
during the May 11, 1998 elections is
declared null and void.
Consequently, let a special election be
held thereat on a date fixed by the
Commission en banc thru a separate
resolution as soon as the funds for the
purpose shall have been released.
Let a copy of this Resolution be furnished
the Secretary of the Department of Interior
and Local Government and the Governor
of Agusan del Norte.
Meanwhile, let the Law Department
investigate the alleged irregularities herein
and determine the extent of the culpability
of each of the respondents and file the
appropriate charge or charges against
them as the evidence so warrants.
SO ORDERED.3
Hence, the present petition, attributing grave abuse of
discretion amounting to lack of, or in excess of, jurisdiction to
respondent COMELEC for the following reasons:
5.1
RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK, OR IN EXCESS,
OF JURISDICTION WHEN, WITHOUT
ANY FORMAL PROCEEDINGS AND
ABSENT ANY FORMAL PRESENTATION
OF EVIDENCE AND WITNESSES, IT
DECLARED A FAILURE OF ELECTION IN
REMEDIOS T. ROMUALDEZ ONLY ON
FEBRUARY 11, 2000, OVER ONE (1)
YEAR AND EIGHT (8) MONTHS AFTER
THE MAY 11, 1998 ELECTIONS.
TWENTY (20) LONG MONTHS AFTER
THE MAY 11, 1998 ELECTION. 4
In sum, the issue posed for resolution by this Court is whether
or not the COMELEC erred in declaring a failure of election in
the entire municipality of RTR.
The Solicitor General, on his part, maintains that the
declaration of a failure of election was proper under the
circumstances because (1) the counting of ballots and the
canvass of the returns were fraught with fraud as the transfer of
counting from the polling precincts to the multi-purpose
gymnasium was irregular and without authority of the
COMELEC and the conformity of the private respondents or
their representatives; (2) the proclamation of petitioners was
irregular as the Certificate of Proclamation was signed by the
MBC on May 12, 1998 while the tabulation of the votes,
verification and preparation of the Statement of Votes,
Certificate of Canvass and the proclamation of the winning
candidates for President down to the local officials were
finished only on May 14, 1998; and (3) the election was marred
by threats, violence, intimidation, coercion, and harassment as
attested to in the sworn statements attached to the
memorandum of private respondents.
We dismiss the petition.
The 1987 Constitution vested upon the COMELEC the broad
power to enforce all the laws and regulations relative to the
conduct of elections as well as the plenary authority to decide
all questions affecting elections except the question as to the
right to vote.5 Section 4 of Republic Act 7166, or the
Synchronized Elections Law of 1991, states:
Section. 4. Postponement, Failure of
Elections and Special Elections. – The
postponement, declaration of failure of
elections and the calling of special
elections as provided in Sections 5, 6 and
7 of the Omnibus Election Code shall be
decided by the Commission sitting en banc
by a majority vote of its members. xxx
Section 6 of the Omnibus Election Code also provides:
Section. 6. Failure of Election. – If, on
account of force majeure, violence,
terrorism, fraud, or other analogous causes
the election in any polling place has not
been held on the date fixed, or had been
suspended before the hour fixed by law for
the closing of the voting, or after the voting
and during the preparation and the
transmission of the election returns or in
the custody or canvass thereof, such
election results in a failure to elect, and in
any of such cases the failure or suspension
of election would affect the result of the
election, the Commission shall, on the
basis of a verified petition by any interested
party and after due notice and hearing, call
for the holding or continuation of the
election not held, suspended or which
resulted in a failure to elect but not later
than thirty days after the cessation of the
cause of such postponement or
suspension of the election or failure to
elect.
In Mitmug v. Commission on Elections,6 we held that before the
COMELEC can act on a verified petition for the declaration of a
failure of election, two conditions must first concur: (1) that no
voting has taken place on the date fixed by law or even if there
was, the election results in a failure to elect, and (2) the votes
not cast would affect the result of the election.
Section 6 of the Omnibus Election Code contemplates three
instances when the COMELEC may declare a failure of election
and call for the holding of a special election. First, when the
election in any polling place has not been held on the date fixed
on account of force majeure, violence, terrorism, fraud or other
analogous cases. Second, when the election in any polling
place had been suspended before the hour fixed by law for the
closing of the voting. And third, after the voting and during the
preparation and the transmission of the election returns or in
the custody or canvass thereof, such election results in a failure
to elect.7
We agree with the findings of the COMELEC that there was a
failure of election in the municipality of RTR, as the counting of
the votes and the canvassing of the election returns was clearly
attended by fraud, intimidation, terrorism and harassment.
Findings of fact of administrative bodies charged with a specific
field of expertise are afforded great weight and respect by the
courts, and in the absence of substantial showing that such
findings are made from an erroneous estimation of the
evidence presented, they are conclusive and should not be
disturbed. The COMELEC, as the administrative agency and
specialized constitutional body charged with the enforcement
and administration of all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and
recall, has more than enough expertise in its field that its
findings and conclusions are generally respected and even
given finality.8
It is not controverted by the petitioners that the counting of the
votes was transferred from the polling places to the multi-
purpose gymnasium without the knowledge and permission of
herein private respondents or their representatives and that the
counting of the votes and the canvassing of the election returns
were done without the latter’s presence. Thus, the COMELEC
was correct in finding that:
The counting by the BEI and the
canvassing by the MBC were done without
the accredited watchers or duly authorized
representatives of the petitioners thus
making the election returns and the
statements of votes not worthy of faith and
credit and not reliable documents to gauge
the fair and true expression of the popular
will.
The rights of watchers as embodied in our
election laws are not ineffectual rights.
They are part and parcel of the measures
to protect the sanctity of the sovereign will.
To cite a few of these rights:
1. witness and inform themselves of the
proceedings of the board;
2. take note of what they may see or hear;
3. take photographs of the proceedings and
incidents, if any, during the counting of
votes, as well as the election returns, tally
board and ballot boxes;
4. file a protest against any irregularity or
violation of law which they believe have
been committed by the board or by any of
its members or by any person;
5. obtain from the board a certificate as to the
filing of such protest and/or of the
resolution thereon;
6. read the ballots after it shall have been
read by the chairman, as well as the
election returns after it shall have been
completed and signed by the members of
the board without touching said election
documents; and
7. be furnished, upon request, with a
certificate of votes casts for the candidates,
duly signed and thumbmarked by the
chairman and all members of the board.9
It is likewise not denied that the transfer of the counting from
the polling places to the multi-purpose gymnasium was without
the authority of the COMELEC as required by law. The
irregularity of the transfer of venue was highlighted by the fact
that the same was not recorded by the Board of Election
Inspectors (BEI). The COMELEC learned of said transfer only
from the answer of Mr. Mangontra to the petition 10 filed with the
COMELEC by the herein-private respondents. Truth to tell, the
Commission’s authority was never sought to effect the transfer
of venue. Thus, we accord respect its finding on this matter:
Apparently, when the venue for the
counting was transferred without notice to
or conforme by the petitioners or their duly
authorized representatives or accredited
watchers and more so, when the counting
by the Board of Election Inspectors and the
canvassing by the Municipal Board of
Canvassers were both conducted without
their presence, their aforesaid rights were
violated. This therefore put the integrity of
the ballots to serious doubt. It is not
surprising therefore when, as pointed out
by both public and private respondents, not
one of the election returns was objected to
during the canvassing. Experience taught
us that more often than not,
representatives of parties, specially those
for the losing candidates, have the
inclination to object to the conclusion of
election returns during the canvassing.
This is an admitted reality in this
jurisdiction. With the scenario being
 painted to us by the respondents, we are
constrained to conclude that the same was
a result of the absence of the petitioners or
their representatives during the canvassing
for as alleged by the petitioners, they were
forcibly barred from witnessing the
proceedings. And the Minutes of Voting
and Counting of Votes which private
respondents attached as annexes "1" and
"2" to their answer to the amended petition
bolster our findings. Where not one of the
LAMMP poll watchers signed in the space
provided therefor in Precinct 17-A while the
two watchers for precinct 16-A, namely,
Homer Sajulan and Apolinario Pecitas,
Although they had purportedly affixed their
names and signatures therein, the same
appear to have been prepared by one and
the same person only as can be inferred
from the handwriting or penmanship which
interestingly, is also similar to the
penmanship of and the pen used by the
one who wrote the names of those illiterate
and/or physically disabled voters in the
space likewise provided therefor. Besides,
only these two watchers left at 10:00 while
there is no indication that the others also
left at the same time.
What is more glaring is the absence of the
signature and thumbmark of
petitioners’ assigned poll watchers on the
election returns from the different precincts
which they submitted as their Exhs. "M" to
"M-14", inclusive. As shown thereon, not
one of the names listed in Annex "2" of
private respondents’ memorandum which
is the list of the official poll watchers of the
LAMMP Party was present during the time
that the same was prepared.11
Sections 39 and 40 of the COMELEC Resolution No. 2971,
entitled "The General Instructions of the Board of Election
Inspectors on the Casting and Counting of Votes for the May
11, 1998 Elections" were clearly violated and they read as
follows:
Section 39. Counting of votes to be public
and without interruption. – After the voting
is finished, the board shall count the votes
cast and ascertain the results in the polling
place. Unless otherwise ordered by the
Commission, the board shall not adjourn,
postpone or delay the counting.
Section 40. Transfer of counting of votes to
safer place. – If on account of imminent
danger of violence, terrorism, disorder or
similar causes, it becomes necessary to
transfer the counting of votes to a safer
place, the Board may effect such transfer
to the nearest safe barangay or school
building within the municipality by
unanimous approval of the board and
concurred by the majority of he watchers
present. This fact shall be recorded in the
Minutes of Voting and Counting of Votes,
and all the members of the board and the
watchers shall manifest their approval and
concurrence by affixing their signatures
therein.
In effecting the transfer, the board shall
ensure the safety and integrity of all
election documents and paraphernalia.
The PNP and/or the AFP in the area in
consultation with the election officer shall
provide adequate security and transport
facilities to the members of the board and
the election documents and paraphernalia
during the transfer and counting of votes.
The preceding provisions are related to, and are in consonance
with, Section 18 of R.A. No. 6646, The Electoral Reforms law of
1989, which reads:
Section 18. Transfer of Counting of Votes
to Safer Place. – If on account of imminent
danger of violence, terrorism, disorder or
similar causes it becomes necessary to
transfer the counting of votes to a safer
place, the board of inspectors may effect
such transfer by unanimous approval of the
board and concurrence by the majority of
the watchers present. This fact shall be
recorded in the minutes of the voting and
the members of the board and the
watchers shall manifest their approval or
concurrence by affixing their signatures
therein. The Commission shall issue rules
and guidelines on the matter to secure the
safety of the members of the board, the
the
watchers, and all election documents and
paraphernalia.1âwphi1.nêt
All these provisions emphasize the need to safeguard the
popular will, hence, the counting of votes must be done openly
and publicly with all the parties represented therein.
Also, petitioners were irregularly proclaimed winners on May
12, 1998 as shown in the Certificate of Proclamation which was
signed by the members of the MBC on the same day. The
Minutes of Canvass reveal that the MBC finished reading the
election returns only on May 13, 1998 at eight o’clock in the
evening after which their proceedings were terminated on May
14,1998.
The pertinent portions of the Minutes of Canvass reveal the
following:
xxx
At the Sangguniang Bayan Session Hall of
Remedios R. Romualdez, Agusan del
Norte on May 11, 1998 at 6:00 o’clock in
the evening the Municipal Board of
Canvassers was called for order by the
Chairman, Mrs. Charlita B. Furinas was
requested to lead the opening prayer. It
was followed by an oath-takin by all the
members of the Board and their support
Staff.
There being no election return to canvass,
the Chairman declared a recess and to
resume at 10:00 P.M. or at any time the
Board will receive as election return to
canvass.
At 1:30 A.M. of May 12, 1998 the first
election return in Precinct No. 2-A-1 was
received and the Chairman immediately
called for the resumption of the Canvass.
 xxx xxx xxx xxx xxx xxx xxx

The reading of election returns was exactly There are reports reaching my office that in
finished at 8:00 P.M. of May 13, 1998. The yesterday’s elections many people,
Board and the supporting staff proceed especially the supporters of mayoralty
with the tabulation of results and the typing candidate Alexander C. Bacquial, were
of the Certificate of Canvass and the prevented from voting in several barangays
Proclamation of the winning candidates. of the municipality of Remedies T.
Romualdez allegedly because of grave
treats, intimidations, and coercions coming
After the typing, the Board with the
from armed men belonging to the political
assistance of the support Staff took
opponents of mayoralty candidate
through the review of the tallies [and] the
Bacquial.
totals of the votes obtained by each
candidates (sic) from President down to
the Local Positions. Verification was made In this connection, you are hereby ordered
until the Board signed and thumbmarked to conduct the necessary investigation of
all the documents particularly the said incident and to submit to me your
Statements of Votes, the Certificate of findings and recommendations thereon as
Canvass, the Certificate of Proclamation of early as possible.
winning candidates, paper seal, etc.
Compliance herewith is hereby enjoined. 15
The Municipal Board of Canvassers
finished the words at exactly 2:00 A.M. of
Significantly, herein petitioners did not submit any counter
May 14, 1998. The Vice-Chairman moved
affidavits to rebut the sworn statements submitted by the
for the adjournment of the meeting and if
witnesses for private respondents.
was duly seconded and approved by the
Chairman.
In sum, the election held at RTR on May 11, 1998 cannot be
12 accorded regularity and validity as the massive and pervasive
xxx
acts of fraud, terrorism, intimidation and harassment were
committed on such day. While it may be true that election did
The irregular proclamation of the petitioners on May 12, 1998 take place, the irregularities that marred the counting of votes
was made more apparent by the answer of Mr. Mangontra to and the canvassing of the election returns resulted in a failure
the petition filed with the COMELEC by the private to elect. And when there is a failure of election, the COMELEC
respondents, thus: is empowered to annul the election and to call a special
election.16 Thus, we find that the COMELEC did not commit
grave abuse of discretion in issuing the assailed resolution.
Herein respondent likewise ADMITS the
allegations in said paragraph 6 of the
petition that a certain MS. FAITH WHEREFORE, premises considered, the instant petition for
TRANQUILAN appeared before him in the certiorari is hereby DISMISSED and the status quo ante order
evening of May 13, 1998, but with the issued by this Court lifted.
qualification that undersigned respondent
did not inform her that the canvassing for
SO ORDERED.
local candidates was made ahead and was
already finished, for the Board never
canvassed the election returns for local
and national candidates separately but at
one time in immediate succession in the
following order, viz: first, the votes for
candidates for national positions; second,
the votes for the party-list, and; third, the
votes for candidates for local positions.
Candidates and representatives of political
parties having been duly notified, the
Board proceeded with the canvass and
proclamation, as no election returns had
been contested or objected to during the
canvass.13

How then could there have been a valid proclamation on May

12, 1998 when the reading of the votes was finished only on
May 13, 1998?

To be sure, the sworn statements 14 attached to the

Memorandum of private respondents which attest to the fact
that the May 11, 1998 election in RTR was marred with
intimidation, terrorism and harassment was corroborated by the
Order dated May 12, 1998 issued by Provincial Election
Supervisor Atty. Roland G. Edayan addressed to Col. Felix P.
Ayaay, PNP Provincial Director which reads:

ORDER