Socrates vs COMELEC, 391 SCRA 457; G.R. No.

154512, November 12, 2002

Posted by Pius Morados on November 6, 2011

(Local Government, Recall Election: Exception to the 3 term limit)

Facts: COMELEC gave due course to the Recall Resolution against Mayor Socrates of
the City of Puerto Princesa, and scheduled the recall election on September 7, 2002.

On August 23, 2002, Hagedorn filed his COC for mayor in the recall election.

Different petitioners filed their respective petitions, which were consolidated

seeking the disqualification of Hagedorn to run for the recall election and the
cancellation of his COC on the ground that the latter is disqualified from running for
a fourth consecutive term, having been elected and having served as mayor of the
city for three (3) consecutive full terms in 1992, 1995 and 1998 immediately prior to
the instant recall election for the same post.

COMELECs First Division dismissed in a resolution the petitioner for lack of merit.
And COMELEC declared Hagedorn qualified to run in the recall election.

Issue: WON one who has been elected and served for 3 consecutive full terms is
qualified to run for mayor in the recall election.

Held: Yes. The three-term limit rule for elective local officials is found in Section 8,
Article X of the Constitution, which states:

Section 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official shall
serve for more than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in the continuity of
his service for the full term for which he was elected.

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise
known as the Local Government Code, which provides:

Section 43. Term of Office. (a) x x x

(b) No local elective official shall serve for more than three (3) consecutive terms in
the same position. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of service for the full term for
which the elective official was elected.
The first part provides that an elective local official cannot serve for more than three
consecutive terms. The clear intent is that only consecutive terms count in
determining the three-term limit rule. The second part states that voluntary
renunciation of office for any length of time does not interrupt the continuity of
service. The clear intent is that involuntary severance from office for any length of
time interrupts continuity of service and prevents the service before and after the
interruption from being joined together to form a continuous service or consecutive
terms.

After three consecutive terms, an elective local official cannot seek immediate re-
election for a fourth term. The prohibited election refers to the next regular election
for the same office following the end of the third consecutive term. Any subsequent
election, like a recall election, is no longer covered by the prohibition for two
reasons. First, a subsequent election like a recall election is no longer an immediate
re-election after three consecutive terms. Second, the intervening period
constitutes an involuntary interruption in the continuity of service.

Based from the deliberations of a Constitutional Commission, what the Constitution

prohibits is an immediate re-election for a fourth term following three consecutive
terms. The Constitution, however, does not prohibit a subsequent re-election for a
fourth term as long as the re-election is not immediately after the end of the third
consecutive term. A recall election mid-way in the term following the third
consecutive term is a subsequent election but not an immediate re-election after
the third term.

Neither does the Constitution prohibit one barred from seeking immediate re-
election to run in any other subsequent election involving the same term of office.
What the Constitution prohibits is a consecutive fourth term.

In the case of Hagedorn, his candidacy in the recall election on September 24, 2002
is not an immediate re-election after his third consecutive term which ended on June
30, 2001. The immediate re-election that the Constitution barred Hagedorn from
seeking referred to the regular elections in 2001.
ADORMEO VS COMELEC

Facts:

Ramon Talaga, Jr. served as mayor of Lucena City during terms 1992-1995 and
1995-1998. During the 1998 elections, Talaga lost to Bernard G. Tagarao. However,
before Tagaraos 1998-2001 term ended, a recall election was conducted in May
2000 wherein Talaga won and served the unexpired term of Tagarao until June 2001.
When Talaga ran for mayor in 2001, his candidacy was challenged on the ground
that he had already served as mayor for three consecutive terms in violation of the
three term-limit rule. Comelec found Talaga disqualified to run for mayor. Talaga
filed a motion for reconsideration which Comelec granted. Talaga was then elected
Mayor.

Issue:

Whether Talaga was disqualified to run as mayor given that he had already served
two full terms and he won in the 2000 recall elections.

Held:

The term limit for elective local officials must be taken to refer to the right to be
elected as well as the right to serve in the same elective position. Consequently, it
is not enough that an individual has served three consecutive terms in an elective
local office, he must also have been elected to the same position for the same
number of times before the disqualification can apply.

For nearly two years Talaga was a private citizen. The continuity of his mayorship
was disrupted by his defeat in the 1998 elections. The time between his second
term and the recall election is sufficient interruption. Thus, there was no three
consecutive terms as contemplated in the disqualifications in the LGC.

Talaga only served two consecutive full terms. There was a disruption when he was
defeated in the 1998 elections. His election during the 2000 recall election is not a
continuation of his two previous terms which could constitute his third term thereby
barring him for running for a fourth term. Victory in the 2000 recall election is not
the voluntary renunciation contemplated by the law. (Adormeo vs Comelec, G.R.
No. 147927, February 4, 2002)
Aguinaldo vs. Santos
Post under Alter ego doctrine , Doctrine of Condonation , Local Government ,
Political Law Case Digests , Power of Control , Powers of the President

Facts:

Aguinaldo was the duly elected Governor of the province of Cagayan. After the
December 1989 coup dtat was crushed, DILG Secretary Santos sent a telegram &
letter to Governor Aguinaldo requiring him to show cause why he should not be
suspended or removed from office for disloyalty to the Republic. A sworn complaint
was also filed by Mayors of several municipalities in Cagayan against Aguinaldo for
acts committed during the coup. Aguinaldo denied being privy to the planning of
the coup or actively participating in its execution, though he admitted that he was
sympathetic to the cause of the rebel soldiers.

The Secretary suspended petitioner from office for 60 days from notice, pending the
outcome of the formal investigation. Later, the Secretary rendered a decision
finding petition guilty as charged and ordering his removal from office. Vice-
Governor Vargas was installed as Governor. Aguinaldo appealed.

Aguinaldo filed a petition for certiorari and prohibition with preliminary mandatory
injunction and/or restraining order with the SC, assailing the decision of respondent
Secretary of Local Government. Petitioner argued that: (1) that the power of
respondent Secretary to suspend or remove local government official under Section
60, Chapter IV of B.P. Blg. 337 was repealed by the 1987 Constitution; (2) that since
respondent Secretary no longer has power to suspend or remove petitioner, the
former could not appoint respondent Melvin Vargas as Governor; and (3) the alleged
act of disloyalty committed by petitioner should be proved by proof beyond
reasonable doubt, and not be a mere preponderance of evidence, because it is an
act punishable as rebellion under the Revised Penal Code.

While the case was pending before the SC, Aguinaldo filed his certificate of
candidacy for the position of Governor of Cagayan. Three petitions for
disqualification were filed against him on the ground that he had been removed
from office.

The Comelec granted the petition. Later, this was reversed on the ground that the
decision of the Secretary has not yet attained finality and is still pending review with
the Court. As Aguinaldo won by a landslide margin in the elections, the resolution
paved the way for his eventual proclamation as Governor of Cagayan.
Issues:

1. WON petitioner's re-election to the position of Governor of Cagayan has rendered

the administration case moot and academic

2. WON the Secretary has the power to suspend or remove local government
officials as alter ego of the President

3. WON proof beyond reasonable doubt is required before petitioner could be

removed from office.

Held:

1. Yes. Aguinaldos re-election to the position of Governor of Cagayan has rendered

the administrative case pending moot and academic. It appears that after the
canvassing of votes, petitioner garnered the most number of votes among the
candidates for governor of Cagayan province. The rule is that a public official cannot
be removed for administrative misconduct committed during a prior term, since his
re-election to office operates as a condonation of the officer's previous misconduct
to the extent of cutting off the right to remove him therefor. The foregoing rule,
however, finds no application to criminal cases pending against petitioner for acts
he may have committed during the failed coup.

2. Yes. The power of the Secretary to remove local government officials is anchored
on both the Constitution and a statutory grant from the legislative branch. The
constitutional basis is provided by Articles VII (17) and X (4) of the 1987 Constitution
which vest in the President the power of control over all executive departments,
bureaus and offices and the power of general supervision over local governments. It
is a constitutional doctrine that the acts of the department head are presumptively
the acts of the President unless expressly rejected by him. Furthermore, it cannot be
said that BP337 was repealed by the effectivity of the present Constitution as both
the 1973 and 1987 Constitution grants to the legislature the power and authority to
enact a local government code, which provides for the manner of removal of local
government officials. Moreover, in Bagabuyo et al. vs. Davide, Jr., et al., this court
had the occasion to state that B.P. Blg. 337 remained in force despite the effectivity
of the present Constitution, until such time as the proposed Local Government Code
of 1991 is approved. The power of the DILG secretary to remove local elective
government officials is found in Secs. 60 and 61 of BP 337.

3. No. Petitioner is not being prosecuted criminally, but administratively where the
quantum of proof required is only substantial evidence. (Aguinaldo vs. Santos, G.R.
No. 94115, August 21, 1992)
Latasa vs. Comelec

Facts:

Petitioner Latasa, was elected mayor of the Municipality of Digos, Davao del Sur in
the elections of 1992, 1995, and 1998. In February 2001, he filed his certificate of
candidacy for city mayor for the 2001 elections. He stated therein that he is eligible
therefor, and likewise disclosed that he had already served for three consecutive
terms as mayor of the Municipality of Digos and is now running for the first time for
the position of city mayor.

Sunga, also a candidate for city mayor in the said elections, filed before the
COMELEC a petition to deny petitioner's candidacy since the latter had already been
elected and served for three consecutive terms. Petitioner countered that this fact
does not bar him from filing a certificate of candidacy for the 2001 elections since
this will be the first time that he will be running for the post of city mayor.

The Comelecs First Division denied petitioner's certificate of candidacy. However,

his motion for reconsideration was not acted upon by the Comelec en banc before
election day and he was proclaimed winner. Only after the proclamation did the
Comelec en banc issue a resolution that declared him disqualified from running for
mayor of Digos City, and ordered that all votes cast in his favor should not be
counted.

Petitioner appealed, contending that when Digos was converted from a municipality
to a city, it attained a different juridical personality separate from the municipality
of Digos. So when he filed his certificate of candidacy for city mayor, it should not
be construed as vying for the same local government post.

Issue:

Is petitioner Latasa eligible to run as candidate for the position of mayor of the
newly-created City of Digos immediately after he served for three consecutive terms
as mayor of the Municipality of Digos?
Held:

As a rule, in a representative democracy, the people should be allowed freely to

choose those who will govern them. Article X, Section 8 of the Constitution is an
exception to this rule, in that it limits the range of choice of the people.
Section 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official shall
serve for more than three consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.
An elective local official, therefore, is not barred from running again in for same
local government post, unless two conditions concur: 1.) that the official concerned
has been elected for three consecutive terms to the same local government post,
and 2.) that he has fully served three consecutive terms.

True, the new city acquired a new corporate existence separate and distinct from
that of the municipality. This does not mean, however, that for the purpose of
applying the subject Constitutional provision, the office of the municipal mayor
would now be construed as a different local government post as that of the office of
the city mayor. As stated earlier, the territorial jurisdiction of the City of Digos is the
same as that of the municipality. Consequently, the inhabitants of the municipality
are the same as those in the city. These inhabitants are the same group of voters
who elected petitioner Latasa to be their municipal mayor for three consecutive
terms. These are also the same inhabitants over whom he held power and authority
as their chief executive for nine years.

The framers of the Constitution specifically included an exception to the peoples

freedom to choose those who will govern them in order to avoid the evil of a single
person accumulating excessive power over a particular territorial jurisdiction as a
result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three consecutive terms as a
municipal mayor would obviously defeat the very intent of the framers when they
wrote this exception. Should he be allowed another three consecutive terms as
mayor of the City of Digos, petitioner would then be possibly holding office as chief
executive over the same territorial jurisdiction and inhabitants for a total of
eighteen consecutive years. This is the very scenario sought to be avoided by the
Constitution, if not abhorred by it.(Latasa vs. Comelec, G.R. No. 154829, 10
December 2003)

Note:

It cannot be denied that the Court has previously held in Mamba-Perez v.

COMELEC that after an elective official has been proclaimed as winner of the
elections, the COMELEC has no jurisdiction to pass upon his qualifications. An
opposing party's remedies after proclamation would be to file a petition for quo
warranto within ten days after the proclamation. Time and again, this Court has held
that rules of procedure are only tools designed to facilitate the attainment of justice,
such that when rigid application of the rules tend to frustrate rather than promote
substantial justice, this Court is empowered to suspend their operation. We will not
hesitate to set aside technicalities in favor of what is fair and just.
Kaiser Recabo vs COMELEC & Francisco Reyes, Jr. GR 134293 (June 21, 1999)

FACTS:
On March 27, 1998, Francisco R. Reyes, Jr., filed his certificate of candidacy for vice-
mayor of Mainit, Surigao Del Norte under the LAKAS NUCD-UMDP. His nomination by
said political party is evidence by the certificate of nomination and acceptance
dated March 27, 1998 signed by Fidel V. Ramos and Jose de Venecia, National
Chairman and Secretary General, respectively, of said political party.
However, on April 2, 1998, Kaiser B. Recabo, Jr., claimed to be the official candidate
of LAKAS as vice-mayor of the same municipality and also filed his certificate of
candidacy. Recabo also submitted to the Commission a copy of the certificate of his
nomination and acceptance signed only by one representative of LAKAS, Francisco
T. Matugas. The space of the other representative (Robert Z. Barbers) is blank. It
was further alleged that Recabo, Jr., is a SUBSTITUTE candidate of MRS.
CANDELARIA B. RECABO who filed her Certificate of Candidacy for VICE-MAYOR of
Mainit, Surigao del Norte on March 25, 1998.
Reyes submits the theory that since the certificate of nomination and acceptance in
favor of Candelaria B. Recabo is not signed by Robert Barbers, there is no valid
nomination by LAKAS NUCD-UMDP in favor of Candelaria Recabo. Therefore,
Candelaria B. Recabo not having been validly nominated, should be deemed an
independent candidate only. And since Candelaria B. Recabo is an independent
candidate, she cannot be validly substituted because under Sec. 11 of Comelec Res.
No. 2977 promulgated on January 15, 1998, no substitution shall be allowed for an
independent candidate.

ISSUE:
Whether or not petitioners certificate of nomination by LAKAS NUCD-UMDP is valid?
HELD:
NO. COMELEC Resolution No. 2977 provides under Section 5 thereof: The certificate
of nomination by registered political parties of their official candidates shall be filed
with the certificates of candidacy not later than the last day for filing of certificates
of candidacy as specified in Section 4 hereof, duly signed and attested under oath
by the party president, chairman, secretary-general or any other party officer duly
authorized in writing to do so.

Be that as it may, the certificate of nomination of the petitioner as well as his

mother did not comply with the requirements of being official candidates of LAKAS
NUCD-UMDP Party. For the reason, that the certificate of nomination was invalid
because it was signed only by one authorized party officer as compared to Reyes
which was signed by the National Chairman and Secretary General, respectively, of
said political party. Therefore, Candelaria Recabo is considered an independent
candidate.

Rodolfo Farias vs Angelo Barba, et al., L-116763, April 19, 1996

Posted on October 3, 2012
GOVERNOR RODOLFO C. FARIAS and AL NACINO, petitioners,
vs.
MAYOR ANGELO N. BARBA, VICE MAYOR MANUEL S. HERNANDO and EDWARD
PALAFOX, respondents.
L-116763; 256 SCRA 396
April 19, 1996

FACTS:
Carlito B. Domingo was a member of the Sangguniang Bayan of San Nicolas, Ilocos
Norte. On March 24, 1994, he resigned after going without leave to the United
States.

To fill the vacancy created by his resignation, a recommendation for the

appointment of Edward Palafox was made by the Sangguniang Bayan of San Nicolas
but the recommendation was made to Mayor Barba. The resolution, containing the
recommendation, was submitted to the Sangguniang Panlalawigan of Ilocos Norte
purportedly in compliance with Sec. 56 of the Local Government Code (R.A. No.
7160).
The Sangguniang Panlalawigan, purporting to act under this provision of the Local
Government Code, disapproved the resolution for the reason that the authority and
power to appoint Sangguniang Bayan members are lodged in the Governor.
Accordingly, the Sangguniang Panlalawigan recommended to the Governor the
appointment of petitioner Al Nacino. On June 8, 1994, the Governor appointed
petitioner Nacino and swore him in office that same day. On the other hand,
respondent Mayor Barba appointed respondent Edward Palafox to the same
position.

On June 14, 1994, petitioners filed with the Regional Trial Court of Ilocos Norte a
petition for quo warranto and prohibition.

On July 8, 1994 the trial court rendered its decision, upholding the appointment of
respondent Palafox by respondent Mayor Barba.

ISSUE:
Who can appoint the replacement and in accordance with what procedure?

HELD:
The person who has the power to appoint under such circumstance is the Governor
upon the recommendation of the Sangguniang concerned which is the Sangguniang
Bayan of San Nicolas where the vacancy occurs.

The upshot of this is that in the case at bar, since neither petitioner Al Nacino nor
respondent Edward Palafox was appointed in the manner indicated in the preceding
paragraph, neither is entitled to the seat in the Sangguniang Bayan of San Nicolas,
Ilocos Norte which was vacated by member Carlito B. Domingo. For while petitioner
Al Nacino was appointed by the provincial governor, he was not recommended by
the Sangguniang Bayan of San Nicolas. On the other hand, respondent Edward
Palafox was recommended by the Sangguniang Bayan but it was the mayor and not
the provincial governor who appointed him.
Navarro vs. Court of Appeals, 313 SCRA 153 (1999)
FACTS:
Two local media men, Stanley Jalbuena, Enrique Lingan, in Lucena City wnet to
the police station to report alledged indecent show in one of the night
establishment shows in the City. At the station, a heated confrontation followed
between victim Lingan and accused policeman Navarro who was then having drinks
outside the headquarters, lead to a fisticuffs. The victim was hit with the handle of
the accused's gun below the left eyebrow, followed by a fist blow, resulted the
victim to fell and died under treatment. The exchange of words was recorded on
tape, specifically the frantic exclamations made by Navarro after the altercation
that it was the victim who provoked the fight. During the trial, Jalbuena, the other
media man , testified. Presented in evidence to confirm his testimony was a voice
recording he had made of the heated discussion at the police station between the
accused police officer Navarro and the deceased, Lingan, which was taken without
the knowledge of the two.

ISSUES:
1. Whether or not the voice recording is admissible in evidence in view of RA
4200, which prohibits wire tapping.
 2. Whether the mitigating circumstances of sufficient provocation or threat on
the part of the offended party and lack of intention to commit so grave a wrong may
be appreciated in favor of the accused.

HELD:
1. The answer is affirmative, the tape is admissible in view of RA 4200, which
prohibits wire tapping. Jalbuena's testimony is confirmed by the voice recording he
had made.

The law prohibits the overhearing, intercepting, or recording of private

communications (Ramirez v Cpourt of Appeals, 248 SCRA 590 [1995]). Snce the
exchange between petitioner Navarro and Lingan was not private, its tape recording
is not prohibited.

2. The remarks of Lingan, which immediately preceded the acts of the accused,
constituted sufficient provocation. Provocation is said to be any unjust or improper
conduct of the offended party capable of exciting, annoying or irritating someone.
The provocation must be sufficient and must immediately precede the act; and in
order to be sufficient, it must be adequate to excite a person to commit the wrong,
which must be accordingly proportionate in gravity. The mitigating circumstance of
lack of intention to commit so grave a wrong must also be considered. The
exclamations made by Navarro after the scuffle that it was Lingan who provoked
him showed that he had no intent to kill the latter.

Romeo J. Gamboa, Jr., petitioner, vs. Marcelo Aguirre, Jr., and Juan Y. Araneta,
respondents.
DECISION
YNARES-SANTIAGO, J.:

The query herein is purely legal. May an incumbent Vice-Governor, while

concurrently the Acting Governor, continue to preside over the sessions of the
Sangguniang Panlalawigan (SP)?

The facts are not in dispute.

In the 1995 elections, Rafael Coscolluela, petitioner Romeo J. Gamboa, Jr. and
respondents Marcelo Aguirre, Jr., and Juan Y. Araneta were elected Negros
Occidental Governor, Vice-Governor and SP members, respectively. Sometime in
August of 1995, the governor designated petitioner as Acting Governor for the
duration of the formers official trip abroad until his return. When the SP held its
regular session on September 6, 1995, respondents questioned the authority of
petitioner to preside therein in view of his designation as Acting Governor and asked
him to vacate the Chair. The latter, however, refused to do so. In another session,
seven (7) members of the SP voted to allow petitioner to continue presiding while
four (4) others voted against with one (1) abstention. On September 22, 1995,
respondents filed before the lower court a petition for declaratory relief and
prohibition. In the meantime, on October 2, 1995, the Governor re-assumed his
office. Later, the trial court rendered a decision and declared petitioner as
temporarily legally incapacitated to preside over the sessions of the SP during the
period that he is the Acting Governor.[1] Aggrieved, petitioner filed a petition for
review raising the issue earlier mentioned. Although this case is dismissible for
having become moot and academic considering the expiration in 1998 of the terms
of office of the local officials involved herein, the Court nonetheless proceeds to
resolve this common controversy but novel issue under the existing laws on local
government.

Sections 49(a) and 466(a)(1) of Republic Act (R.A.) No. 7160 otherwise known as the
Local Government Code of 1991, provide that the Vice-Governor shall be the
presiding officer of the SP.[2] In addition to such function, he become(s)[3] the
Governor and assume(s)[4] the higher office for the unexpired term of his
predecessor, in case of permanent vacancy therein. When the vacancy, however, is
merely temporary, the Vice-Governor shall automatically exercise the powers
(subject to certain limitations) and perform the duties and functions[5] of the
Governor. It may be noted that the Code provides only for modes of succession in
case of permanent vacancy in the office of the Governor and the Vice-Governor
(whether single or simultaneously) as well as in case of a temporary vacancy in the
office of the Governor. But, no such contingency is provided in case of temporary
vacancy in the office of the Vice-Governor, just like the 1983 Local Government
Code.[6]

It is correct that when the Vice-Governor exercises the powers and duties of the
Office of the Governor, he does not assume the latter office. He only acts as the
Governor but does not become the Governor. His assumption of the powers, duties
and functions of the provincial Chief Executive does not create a permanent vacuum
or vacancy in his position as the Vice-Governor. Necessarily, he does not relinquish
nor abandon his position and title as Vice-Governor by merely becoming an Acting
Governor, (not Governor) or by merely exercising the powers and duties of the
higher office. But the problem is, while in such capacity, does he temporarily
relinquish the powers, functions, duties and responsibilities of the Vice-Governor,
including the power to preside over the sessions of the SP?

Sad to say the new Local Government Code is silent on this matter, yet this query
should be answered in the positive. A Vice-Governor who is concurrently an Acting
Governor is actually a quasi-Governor. This means, that for purposes of exercising
his legislative prerogatives and powers, he is deemed as a non-member of the SP
for the time being. By tradition, the offices of the provincial Governor and Vice-
Governor are essentially executive in nature, whereas plain members of the
provincial board perform functions partaking of a legislative character. This is
because the authority vested by law in the provincial boards involves primarily a
delegation of some legislative powers of Congress.[7] Unlike under the old Code,
where the Governor is not only the provincial Chief Executive,[8] but also the
presiding officer of the local legislative body,[9] the new Code delineated the union
of the executive-legislative powers in the provincial, city and municipal levels
except in the Barangay. Under R.A. 7160, the Governor was deprived of the power
to preside over the SP and is no longer considered a member thereof.[10] This is
clear from the law, when it provides that local legislative power shall be vested in
the SP,[11] which is the legislative body of the province, and enumerates therein its
membership consisting of the:

1.) Vice-Governor, as presiding officer,

2.) regular elective SP members,

3.) three elective sectoral representatives, and

4.) those ex-officio members, namely:

a.) president of the provincial chapter of the liga ng mga barangay,

b.) president of the panlalawigang pederasyon ng mga sangguniang kabataan,

c.) president of the provincial federation of sanggunian members of municipalities

and component cities.[12]

Not being included in the enumeration, the Governor is deemed excluded applying
the rule in legal hermeneutics that when the law enumerates, the law necessarily
excludes. On the contrary, local executive power in the province is vested alone in
the Governor.[13] Consequently, the union of legislative-executive powers in the
office of the local chief executive under the former Code has been disbanded, so
that either department now comprises different and non-intermingling official
personalities with the end in view of ensuring a better delivery of public service and
provide a system of check and balance between the two.

It has been held that if a Mayor who is out of the country is considered effectively
absent, the Vice-Mayor should discharge the duties of the mayor during the latters
absence.[14] This doctrine should equally apply to the Vice-Governor since he is
similarly situated as the Vice-Mayor. Although it is difficult to lay down a definite
rule as to what constitutes absence, yet this term should be reasonably construed
to mean effective absence,[15] that is, one that renders the officer concerned
powerless, for the time being, to discharge the powers and prerogatives of his
office.[16] There is no vacancy whenever the office is occupied by a legally qualified
incumbent. A sensu contrario, there is a vacancy when there is no person lawfully
authorized to assume and exercise at present the duties of the office.[17] By virtue
of the foregoing definition, it can be said that the designation, appointment or
assumption of the Vice-Governor as the Acting Governor creates a corresponding
temporary vacancy in the office of the Vice-Governor during such contingency.
Considering the silence of the law on the matter, the mode of succession provided
for permanent vacancies, under the new Code, in the office of the Vice-Governor
may likewise be observed in the event of temporary vacancy occurring in the same
office.[18] This is so because in the eyes of the law, the office to which he was
elected was left barren of a legally qualified person to exercise the duties of the
office of the Vice-Governor.

Being the Acting Governor, the Vice-Governor cannot continue to simultaneously

exercise the duties of the latter office, since the nature of the duties of the
provincial Governor call for a full-time occupant to discharge them.[19] Such is not
only consistent with but also appears to be the clear rationale of the new Code
wherein the policy of performing dual functions in both offices has already been
abandoned. To repeat, the creation of a temporary vacancy in the office of the
Governor creates a corresponding temporary vacancy in the office of the Vice-
Governor whenever the latter acts as Governor by virtue of such temporary
vacancy. This event constitutes an inability on the part of the regular presiding
officer (Vice Governor) to preside during the SP sessions, which thus calls for the
operation of the remedy set in Article 49(b) of the Local Government Code
concerning the election of a temporary presiding officer. The continuity of the Acting
Governors (Vice-Governor) powers as presiding officer of the SP is suspended so
long as he is in such capacity. Under Section 49(b), (i)n the event of the inability of
the regular presiding officer to preside at the sanggunian session, the members
present and constituting a quorum shall elect from among themselves a temporary
presiding officer.[20]

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.

REYNALDO O. MALONZO, petitioner, vs. THE HONORABLE COMMISSION ON

ELECTIONS and THE LIGA NG MGA BARANGAY (Caloocan Chapter) and ALEX L.
DAVID, CONRADO G. CRUZ, TRINIDAD REPUNO, GLORIA M. CRUZ, MIRALI M. DURR,
FERMIN JIMENEZ, AURELIO BILUAN, ROGELIO SARAZA, HELENE VALBUENA, and
HIGINO RULLEPA, respondents.
DECISION
TORRES, JR., J.:

The Court is called upon to strike down Resolution 96-026,[1] dated November 18,
1996, of the respondent Commission on Elections (COMELEC) calling for an Election
for the Recall of the Petitioner Reynaldo O. Malonzo, the incumbent Mayor of
Caloocan City.

Petitioner was duly elected as Mayor in the elections held on May 8, 1995, winning
over former Mayor Macario Asistio, Jr. Barely one year into his term, petitioner's
office as Mayor was put to serious question when on July 7, 1996, 1,057 Punong
Barangays and Sangguniang Barangay members and Sangguniang Kabataan
chairmen, constituting a majority of the members of the Preparatory Recall
Assembly of the City of Caloocan, met, and upon deliberation and election, voted for
the approval of Preparatory Recall Assembly Resolution No. 01-96, expressing loss
of confidence in Mayor Malonzo, and calling for the initiation of recall proceedings
against him.

Together with relevant documents, PRA Resolution No. 01-96 was filed with the
COMELEC for appropriate action. In response, Mayor Malonzo filed a Petition with
the respondent Commission alleging, principally, that the recall process was
deficient in form and substance, and therefore, illegally initiated. The COMELEC
found the petition devoid of merit and declared the recall proceedings to be in
order. The COMELEC's Resolution on the petition states pertinently:

"WHEREFORE, in view of the foregoing, the Commission En Banc hereby RESOLVES

to DISMISS the Petition. We approve and give DUE COURSE to PRA Resolution No.
01-96 entitled RESOLUTION TO INITIATE RECALL OF REYNALDO O. MALONZO AS
MAYOR OF KALOOCAN CITY FOR LOSS OF CONFIDENCE. Accordingly and
conformably with Section 71 R.A. 7160, the Commission SETS the date of the
Election on Recall on December 14, 1996. We shall, by separate resolution, issue a
calendar of activities involved in said exercise.

SO ORDERED."[2]

On November 28, 1996, Mayor Malonzo came to us on a "Petition for Certiorari With
Prayer For Temporary Restraining Order and Application for Writ of Preliminary
Injunction", assailing the COMELEC's resolution as having been issued with grave
abuse of discretion. The Petition, in the main, raises the issue of the validity of the
institution and proceedings of the recall, putting to fore the propriety of the service
of notices to the members of the Preparatory Recall Assembly, and the proceedings
held, resulting in the issuance of the questioned Resolution.

Due to the importance of the matters in issue, and the proximity of the Recall
Election date declared by the COMELEC, the Court, on November 29, 1996, issued a
Resolution[3] ordering the respondent COMELEC to cease and desist from
proceeding with the recall election projected on December 14, 1996, and directing
the respondents to file their respective Comments.

Private respondents Liga ng mga Barangay (Caloocan Chapter), Alex L. David,

Conrado G. Cruz, Trinidad Repuno, Gloria M. Cruz, Mirali M. Durr, Fermin Jimenez,
Aurelio Biluan, Rogelio Saraza, Helene Valbuena and Higino Rullepa, filed their
Comment[4] on December 6, 1996, alleging that all the requirements for the
holding of a recall election were duly complied with and that the petition is therefore
without basis. On the other hand, the Office of the Solicitor General filed a
Manifestation in lieu of Comment[5] on February 7, 1997, with the surprising
submission that the COMELEC was amiss in its duties as enforcer of election laws.

According to the Solicitor General, the veracity of notices sent to 42 members of the
Preparatory Recall Assembly were not directly passed upon by the COMELEC before
it issued the questioned Resolution. It thus submits that the propriety of notices
sent to said PRA members must first be determined by the COMELEC, after giving
private respondents the chance to prove the same, otherwise, a discussion of the
other issues in the present petition would be premature.

At this juncture, the Court finds that there is no need to refer the matter of the
veracity of the questioned notices sent to certain members of the Preparatory Recall
Assembly back to the COMELEC, for the reason that the COMELEC has already
conducted an investigation into the same, and has found the proceedings instituting
the recall to be in accord with law.

The Solicitor General's observation that the issue of veracity of the notices was not
directly passed upon by the COMELEC is incorrect. On the contrary, the matter of
validity of notices to the members of the Preparatory Recall Assembly was
sufficiently considered by the respondent Commission, as in response to petitioner's
request for a technical examination of the recall documents, the COMELEC directed
its Election Records and Statistics Department (ERSD) to resolve the matter of
notices sent to the Preparatory Recall Assembly members. The ERSD in turn
performed its task and reported its findings to the COMELEC. The following excerpts
from Resolution UND 96-026 of the COMELEC reflect the results of the ERSD's
investigation, and the resulting action of the COMELEC:

"The ERSD Report gave the following information:

Three (3) lists of elected Barangay officials were used as reference, namely:
COMELEC list; DILG list and Caloocan City list.

According to the COMELEC listing, of the 188 barangays in Kalookan City, there
should have been 1,692 members of the PRA. However, one barangay, Barangay
94, did not elect an SK Chairman, thus, there are of record, 1,691 elected barangay
officials of Kalookan City, broken down as follows:

Punong Barangay - 188

Barangay Kagawads - 1,316
SK Chairmen - 187
(One Barangay, Barangay 94 did not elect its SK Chairman)

The DILG registry is incomplete, showing only a listing of 1,390 barangay officials.
The Kalookan City Talaan ng mga Barangay tallies with the COMELEC List. From the
records, the following data is found: Of the 1,691 barangay officials, forty (40) had
resigned. In the stead of twenty-eight (28) resignees, replacements were appointed.
Twelve (12) positions however, remained vacant, there being no successors named
therein. Twenty-two (22) barangay officials are deceased. Twelve (12) vacancies
caused by such death were filled up by appointing replacements. Ten (10) vacant
positions were however not filled up. There being twenty-two (22) unfilled posts, the
total number of Barangay officials of Kalookan City at the time of the constitution of
the Preparatory Recall Assembly was initiated is 1,669.

ERSD reported that there were a total of 1,927 notices sent, some members being
served two or three notices. The Notices were sent in three modes; Personal,
registered mail and by courier and they were in the name of the PRA member, and
addressed at his residence or office of record.

In its initial report, the Department stated that six persons listed in the COMELEC
record as barangay officials were not duly notified. These were: Jose de Chavez,
listed as Barangay kagawad of Barangay 6; Enrico Marasigan, listed as Barangay
kagawad of Barangay 65; Pablo Musngi, listed as Barangay kagawad of Barangay
119; Rolando Ang, listed as Barangay kagawad of Barangay 109; and Pilar Pilares,
Barangay Kagawad of Barangay 162 and Teresita Calayo, listed as kagawad of
Barangay 182. Respondents explained the absence of notice to these persons thus:

'1. Jose de Chavez has been removed from office as Barangay kagawad of Barangay
6 by virtue of Resolution No. 95-011 passed on July 16, 1995, and has been replaced
by Corazon Obusan by virtue of Resolution No. 95-016 passed on August 1995, both
promulgated by the Barangay Council of said barangay. In view of the fact that it is
Corazon Obusan who is the recognized Barangay kagawad of the aforementioned
barangay, as it appears in the official roster of the Department of Interior and Local
Government (DILG) the notice of the July 7, 1996 PRA session was duly served on
her and not on Mr. de Chavez.

2. Enrico Marasigan has resigned as Barangay kagawad of Barangay 65 as

evidenced by his resignation letter dated March 24, 1995. He was replaced by Ronio
de la Cruz, by virtue of a Resolution passed by the Barangay Council of Barangay 65
dated August 10, 1995. Accordingly, the notice of the July 7, 1996 PRA session was
duly served on Mr. de la Cruz and not on Mr. Marasigan.

3. Pablo Musngi ceased to be a Barangay kagawad of Barangay 119 by reason of his

death on April 12, 1996. He has been replaced by Sylvia Saberola on whom notice
of the July 7, 1996 PRA session has been duly served.
4. Notices, both by personal delivery and by registered mail, were served on Mr.
Rolando Ang at his official address at Barangay 109 Zone 10 East Grace Park,
Caloocan City. The returns of the said service of notice, however, disclosed that he
can no longer be located in the said address. He has, however, not informed the
DILG of any change in his official address.

5. Pilar Pilares had been served notice by personal delivery but refused to sign
acknowledgment receipt. She has likewise been served notice by registered mail as
evidenced by the receipt in her behalf by a certain Ricardo Pilares III.' (Respondents'
Comment, dated October 14, 1996.

As to Teresita Calayo, respondent defends lack of notice to her, thus:

'Teresita Calayo is not a duly elected kagawad of Barangay 182, Zone 16.

Per certification issued by the Board of Election Tellers, Ms. Calayo did not win in the
May 1994 Barangay Election. Records would show that it should be Kagawad Fermin
Quintos who should be recognized as legitimate barangay kagawad of the said
barangay having placed no. 7 in the election and not Ms. Calayo who appears to be
a loser/9th place. There appears to be an apparent oversight in placing the name of
Calayo in the subject PRA Resolution for signature, wherein it shows that both the
names of Fermin Quintos and Teresita Calayo are included.' (Respondents'
Compliance dated November 13, 1996, p. 6)

In the ERSD's final and complete report, two (2) additional names were reflected as
not having been served notices and these were Lino Ramos and Teodulfo Abenoja,
listed as kagawads of Barangay 174.

Commenting on this report, respondents stated:

'1. As regards Tomas Daep and Teodulfo Abenoja (not Agenoja);

Notice by registered mail was served on, and acknowledged by Tomas Daep, who
personally signed the return card.

There was actually an error committed by the ERSD when it concluded that Tomas
Daep has already resigned and was replaced by Ernesto Taupa. Official records
would show that Tomas Daep and Ernesto Taupa are still both presently holding the
position of Kagawad of Barangay 174 Zone 15.

Ernesto Taupa was officially appointed to the position vacated by Teodulfo Abenoja
by virtue of the latter's resignation on 15 March 1996. Teodulfo Abenoja, on the
other hand, was appointed to the position vacated by Lino Ramos and Teodulfo
Abenoja - they, having resigned and, the latter, having been already replaced by
Ernesto Taupa.
Ernesto Taupa on the other, as correctly determined by the ERSD, was validly
served with the notice of the PRA session two (2) days before the scheduled PRA
meeting.'

Respondents' submission, being substantiated by documents and uncontroverted by

Petitioner are hereby accepted as meritorious.

In addition to the aforenamed, three persons; Pablo de Castro, Ruben Ballega, and
Jesus Tan claiming to be the Barangay captains of Barangay 116, Barangay 148 and
Barangay 156, respectively, and therefore members of the Preparatory Recall
Assembly, came before the Commission and manifested that they were not duly
notified about the PRA session.

The records in custody of the Commission, however, revealed that there was no
truth to their allegations.

Pablo de Castro was served notice by registered mail on July 1, 1996, and this he
received on July 3, 1996, as shown in the return card duly signed in
acknowledgment. The same notice was served on him by courier (LBC) on July 5,
1996.

Ruben Ballega was notified by personal service on July 1, 1996, the receipt of which
was duly acknowledged and by registered mail on July 2, 1996.

Jesus Tan Sr. was served notice personally and by registered mail. The personal
service was completed on July 1, 1996, as shown by the receipt signed by his
daughter, one Analiza T. Asque. The same notice was sent him by registered mail,
received by the same daughter on July 2, 1996.

The Commission however regards the sending of notice one thing, and the
completion of service thereof another, for indeed, the requirement of notice can
only be fully satisfied, if there was not only service, but also completion of service
thereof. Thus, we were obliged to inquire more closely into the records and we
found:

Personal services were acknowledged by receipts signed, if not by the addressee

himself, then, as indicated thereon, by his or her spouse, nearest relative or a
person of sufficient discretion in the member's residence or office. Service by
registered mail was evinced by the return card duly signed by the addressee or by
persons acting for him. There were instances when notices were served but were
refused, this fact noted in the acknowledgment receipt by the server and his
witnesses. The circumstances being thus, we hold that there was complete service
of the notices as contemplated in Section 8, Rule 13 of the Rules of Court which
provides:
'Section 8 - Completeness of Service - Personal service is complete upon delivery.
Service by ordinary mail is complete upon the expiration of five (5) days after
mailing, unless the court otherwise provides; Service by registered mail is complete
upon actual receipt by the addressee; but if he fails to claim his mail from the post
office within five (5) days from the date of first notice of the postmaster, service
shall take effect at the expiration of such time.'

That it was Alex David, President of the LIGA ng mga Barangay who sent the notices
is of no moment. We had earlier determined that as member of the PRA, he can
legally exercise the prerogatives attached to his membership in the Preparatory
Recall Assembly, sending notices to the other members of its scheduled convening.

It is evident from the foregoing and, therefore, the Commission so holds that the
requirements of notice had been fully complied with."[6]

Needless to state, the issue of propriety of the notices sent to the PRA members is
factual in nature, and the determination of the same is therefore a function of the
COMELEC. In the absence of patent error, or serious inconsistencies in the findings,
the Court should not disturb the same. The factual findings of the COMELEC, based
on its own assessments and duly supported by gathered evidence, are conclusive
upon the court, more so, in the absence of a substantiated attack on the validity of
the same.

Moreover, to order the COMELEC to repeat the process of determining the notices'
propriety would be sanctioning a recycling of administrative functions, entailing
added cost and waste of effort.

Petitioner likewise attacks the COMELEC's ruling on the validity of the proceedings
held by the Preparatory Recall Assembly, in that it allegedly ruled that the LIGA ng
mga Barangay is authorized to initiate the recall and convene the Preparatory Recall
Assembly. Petitioner likewise averred that the session held, and the adoption of the
recall resolution, by the recall assembly were tainted with irregularities, violence,
graft and corruption.

The pertinent provisions of law, as regards the initiation of the recall process, are
Sections 69 and 70 of R.A. 7160:

"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:

xxx

(2) City level. - All punong barangay and sangguniang barangay members in the
city;

xxx

(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 also be
validly initiated upon petition of at least 25% of the total number of registered
voters in the local government unit concerned during the election in which the local
official sought to be recalled was elected.

(1) A written petition for recall duly signed before the election registrar or his
representative, and in the presence of a representative of the petitioner and a
representative of the official sought to be recalled, and in a public place in the
province, city, municipality, or barangay, as the case may be, shall be filed with the
COMELEC through its office in the local government unit concerned. The COMELEC
or its duly authorized representative shall cause the publication of the petition in a
public and conspicuous place for a period of not less than ten (10) days nor more
than twenty (20) days, for the purpose of verifying the authenticity and
genuineness of the petition and the required percentage of voters.

(2) Upon the lapse of the aforesaid period, the COMELEC or its duly authorized
representative shall announce the acceptance of candidates to the position and
thereafter prepare the list of candidates which shall include the name of the official
sought to be recalled."

Petitioner's insistence, that the initiation of the recall proceedings was infirm since it
was convened by the Liga ng mga Barangays, is misplaced. Petitioner observes that
"respondent Liga is an organization of all barangays. It is not an organization of
barangay captains and kagawads. The barangays are represented in the Liga by the
barangay captains as provided under Section 492 of the Local Government Code. It
also provides that the Kagawad may represent the barangay in the absence of the
barangay chairman."[7] The Liga ng mga Barangay is undoubtedly an entity distinct
from the Preparatory Recall Assembly. It just so happens that the personalities
representing the barangays in the Liga are the very members of the Preparatory
Recall Assembly, the majority of whom met on July 7, 1996, and voted in favor of
the resolution calling for the recall of Mayor Malonzo, after deliberation reported in
the record, in accordance with the existing law. Thus, the Punong Barangays and
Sangguniang Barangay members convened and voted as members of the
Preparatory Recall Assembly of the City of Caloocan, and not as members of the
Liga ng mga Barangay. The recall proceedings, therefore, cannot be denied merit on
this ground.

Any doubt as to the propriety of the proceedings held during the recall assembly
should be laid to rest. As the respondent COMELEC pertinently observes:

"The Minutes of the session of the Preparatory Assembly indicated that there was a
session held. Attendees constitute the majority of all the members of the
Preparatory Assembly, as we shall later on establish. Rules of procedure, simple
they may be were formulated. Deliberations were conducted on the main issue,
which was that of petitioner's recall. The members were given the opportunity to
articulate on their resolve about the matter. More importantly, their sentiments
were expressed through their votes signified by their signatures and thumbmarks
affixed to the Resolution. No proof was adduced by Petitioner to substantiate his
claim that the signatures appearing thereon represented a cause other than that of
adopting the resolution. The law on recall did not prescribe an elaborate proceeding.
Neither did it demand a specific procedure. What is fundamental is compliance with
the provision that there should be a session called for the purpose of initiating recall
proceedings, attended by a majority of all the members of the preparatory recall
assembly, in a public place and that the resolution resulting from such assembly be
adopted by a majority of all the PRA members."[8]

The charges of graft and corruption, violence and irregularities, before and during
the session of the preparatory recall assembly are largely uncorroborated, and
cannot override the substantiated findings of the respondent COMELEC.

"In cases filed before administrative and quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial evidence, or that amount of
relevant evidence which a reasonable mind might accept as adequate to justify a
conclusion."[9]

Substantial evidence means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.[10] It means such evidence which
affords a substantial basis from which the fact in issue can be reasonably inferred.
[11] To overturn the presumption of validity of performance of official duty, more
than a mere scintilla of proof is needed, otherwise, one disgruntled fellow can
destroy the foundations laid by the overwhelming majority, and this is not the
scenario envisioned by our democratic system of government.

In sum, we are persuaded strongly by the principle that the findings of fact of
administrative bodies charged with their specific field of expertise, are afforded
great weight 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 in the interest of stability of the governmental structure, should not
be disturbed.
ACCORDINGLY, the Court hereby RESOLVED to DISMISS the present petition, for lack
of merit. The decision of the respondent Commission on Elections to GIVE DUE
COURSE to PRA Resolution No. 01-96 is hereby AFFIRMED. The Commission on
Elections is hereby ORDERED to set the date of the Election on Recall in the city of
Caloocan, which date shall not be later than thirty days after receipt of notice of this
Resolution, which is immediately executory.

SO ORDERED.

JESUS A. JARIOL, Municipal Mayor of Basilisa, Surigao del Norte; ROMEO P. ECLEO,
Vice Mayor of Basilisa, Surigao del Norte; ANIANO BUSMEON, ALBERTO TUBO, JUAN
DIGAL, JR., GENEROSO SAREN, ISIDRO MONESIT and SATURNINO LANUGON,
Sangguniang Bayan Member of Basilisa, Surigao del Norte, petitioners, vs. THE
COMMISSION ON ELECTIONS, FELIPE A. YCOT and DAISY LUMAMBAS, respondents.
DECISION
DAVIDE, JR. J.:

This is a special civil action for certiorari under Rule 65 of the Rules of Court to
annul and set aside Resolution No. 2879 of the Commission on Elections (COMELEC)
of 12 December 1996, which adopted the calendar of activities for the recall
election of the Mayor, Vice Mayor and six (6) members of Sangguniang Bayan of the
Municipality of Basilisa, Province of Surigao del Norte, and scheduled said recall
election on 25 January 1997.

Petitioners, as the officials sought to be recalled, submit that:

1. Not all the members of the Preparatory Recall Assembly were notified of the
meeting for the recall of said municipal officials;
2. The notice of the meeting did not state the purpose thereof, much less, that it
was for the recall of the Mayor, Vice Mayor and six Sangguniang Bayan members;

3. The meeting was not open to the public, but behind closed doors; and

4. The recall election is scheduled on January 25, 1997, within one year immediately
preceding a regular election of barangay officials in May, 1997.

As regards the first, petitioners allege that seven (7) of the twenty-seven (27)
Barangay Captains of the Municipality of Basilisa and fifty-five (55) members of the
different Sangguniang Barangays (SB) thereof did not receive notice of the
Preparatory Recall Assembly (PRA) Meeting held on 24 August 1996 and which
passed the resolution of recall. These 7 Barangay Captains and 55 SB members
executed affidavits to this effect which were attached to the petition.

As to the notice of meeting, petitioners allege that it was in the form reproduced on
page 8 of the petition[1] and carried the following heading:

ASSOCIATION OF BARANGAY COUNCILS

Basilisa, Surigao del Norte

MUNICIPAL PREPARATORY RECALL ASSEMBLY

It did not contain a statement of the purpose of the meeting which was to be held in
the remote barangay of Sering at a school building located about one-half kilometer
away from the barangay proper. The meeting was likewise held behind closed doors.
Affidavits of witnesses to such fact were also attached to the petition.

Petitioners then contend that the meeting was held in violation of Section 70 of the
Local Government Code of 1991 (R.A. No. 7160), which reads as follows:

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 officials
assumption to office or one (1) year immediately preceding a regular local election.

As to the last ground, petitioners contend that under Section 74(b) of RA No. 7160,
no recall should 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.
Under Section 43(c) of the same Code, the term of office of barangay officials and
members of the Sangguniang Kabataan shall be for three (3) years, which shall
begin after the regular election of barangay officials on the second Monday of May,
1994. Per Resolution No. 2880 of 27 December 1996, the COMELEC stated that the
next barangay election would be on 12 May 1997 hence, no recall election could be
done within one year immediately preceding 12 May 1997. The recall then in this
case falls within the prohibited period.

On 21 January 1997 we issued a Temporary Restraining Order ordering the

respondent COMELEC to cease and desist from implementing its questioned
Resolution No. 2879 and directing the respondents to Comment on the petition
within a non-extendible period of ten (10) days.

In its Comment for public respondent COMELEC, the Office of the Solicitor General
alleges that per Report of the Election Officer of Basilisa, Surigao del Norte, the PRA
meeting was attended by 109 members, a number sufficient to constitute a quorum
since Basilisa is composed of 27 barangays with eight officers for each unit. All of
the 109 "signed the minutes of the meeting as they affixed therein their signatures
and thumbmarks signifying their assent to the assembly; and the COMELEC, (u)pon
examination of the signatures and the minutes of the meeting," "affirmed the
authenticity of the signatures and thumbmarks of the members of the PRA."
Thereafter, the Office of the Solicitor General further states, the COMELECs Deputy
Executive Director for Operation recommended to the Comelec en banc the holding
of the recall election." Pursuant thereto, the COMELEC en banc issued on 12
December 1996 the challenged Resolution, whose reconsideration petitioner never
sought .

The Office of the Solicitor General then urges us to dismiss the petition because: (a)
of prematurity, since petitioners had not asked the COMELEC to reconsider
Resolution No. 2879; (b) it raises factual issues which are not proper subjects of a
petition for certiorari; and (c) the barangay election on 12 May 1997 will not bar the
recall election in question in light of our decision in Paras v. Commission on
Elections (G.R. No. 123169, 4 November 1996) where we held that the regular
election referred to in Section 74(b) of the Local Government Code of 1991 refers to
the election where the office held by the local elective official sought to be recalled
will be contested and be filled by the electorate, which is not the barangay election
on 12 May 1997, but the election for Mayor, Vice Mayor and members of the SB in
May of 1998.

In their Comment, private respondents contend that there was compliance with the
requirements of due process as all members of the PRA were duly notified of the
date and place of meeting for the purpose of recall. The PRA of Basilisa is composed
of 243 members, representing the total number of elected barangay officials of the
27 barangays thereof. They were all furnished and served with notice of said
meeting, which they received in due time as evidenced by 243 registry receipts
issued by the Post Office and which form part of the records in the COMELEC. Only
123 responded and attended the PRA meeting, while 114 did not respond nor attend
the meeting, the whereabouts of 5 were unknown and 1 had earlier resigned.

Private respondents further claim that the meetings venue was the Sering High
School building in barangay Sering, which is definitely a public place; and that the
meeting was attended by a majority of the barangay officials constituting the PRA,
as well as Barangay residents of the different barangays.
Private respondents finally claim that the instant petition is part of a continuing
scheme to unjustly prevent a recall process. According to them, the first meeting of
the Association of Barangay Councils to formally organize the Municipal Preparatory
Recall Assembly was set for 5 July 1996, but had to be postponed to 9 July 1996
because petitioner Mayor Jariol, upon learning of it, called a meeting of barangay
officials also on 5 July 1996. Again, on 9 July 1996, Mayor Jariol called a meeting of
the barangay officials to prevent the latter from convening a Municipal PRA. Despite
threats of disciplinary action by Mayor Jariol, the barangay officials nevertheless
met, formally convened and constituted themselves into the Municipal Preparatory
Recall Assembly. On 15 July 1996, respondent Felipe Ycot and 107 other barangay
officials who attended the aforesaid meeting of 9 July 1996 were administratively
charged before the Sangguniang Bayan of Basilisa with dereliction of duty for their
failure to attend the meeting called by Mayor Jariol on 9 July 1996. Respondents
therein moved to inhibit the members of the SB, petitioners herein; but, the motion
was peremptorily denied. A motion for reconsideration was denied on 13 September
1996. On even date the SB handed down a decision dismissing from office the
herein private respondents with the 106 other barangay officials. Fortunately, on
appeal to the Sangguniang Panlalawigan (SP) of Surigao del Norte, the decision was
reversed in the decision of the SP of 22 November 1996. This was followed on 2
December 1996 by the letter of the Governor of Surigao del Norte directing
petitioner Jariol to reinstate the barangay officials, which Jariol refused to comply
with.

In their Joint [Consolidated] Reply, petitioners reiterate their reliance on the sworn
statements of 7 barangay captains and 55 SB members that they did not receive
notice of the meeting, and as to the 243 registry receipts alleged by private
respondents, petitioners maintain that it is not mentioned when these registered
notices were sent, from which Post Office, and when these were received. They even
claim that it is rather unusual that the notices were sent allegedly by registered
mail because notices of meetings of barangay officials are normally sent by
personal delivery.

As to whether the notice of meeting stated a purpose and the meeting was public or
held in closed doors, petitioners reiterated their earlier submission and further
assert that the sworn statements of 11 persons which they attached to the petition
were not traversed by any sworn statement.

As regards the claim of COMELEC that petitioners should have first contested the
factual findings of the PRA before the COMELEC instead of filing this petition,
petitioners allege that they did not have enough opportunity to do so for the
challenged resolution was promulgated on 12 December 1996 and the recall
election was scheduled on 25 January 1997. Further, the Resolution was first
published only on 20 December 1996, and petitioners only learned of this the
following day in Surigao City as no newspapers are circulated in Basilisa, and the
copy of the resolution sent to petitioners was delivered to petitioner Jariol on or
about 3 January 1997.

Petitioners were silent on the charge of private respondents that this petition was
part of the formers scheme to harass the private respondents to unjustly prevent
the recall process.
After due deliberation on the arguments adduced in the foregoing pleadings, we
resolved to DISMISS this petition for prematurity and for petitioners failure to
sufficiently show that respondent Commission on Elections committed grave abuse
of discretion in giving due course to the recall petition and in promulgating
Resolution No. 2879.

As correctly pointed out by the Office of the Solicitor General, if petitioners were
unsatisfied with the findings of the COMELEC, they should have first moved for
reconsideration before filing this special civil action for certiorari under Rule 65 of
the Rules of Court. The petitioners were fully aware of the proceedings before the
COMELEC.

The COMELEC performed a purely administrative function when it promulgated

Resolution No. 2879. A party aggrieved thereby must not merely initiate the
prescribed administrative procedure to obtain relief, but also must pursue it to its
appropriate conclusion before seeking judicial intervention in order to give that
administrative agency an opportunity to decide the matter by itself correctly and
prevent unnecessary and premature resort to the court. (Cruz v. del Rosario, 9 SCRA
755, 758 [1963]; Manuel v. Jimenez, 17 SCRA 55, 57 [1966]). This is the rule on
exhaustion of administrative remedies. A motion for reconsideration then is a pre-
requisite to the viability of a special civil action for certiorari, unless the party who
avails of the latter can convincingly show that his case falls under any of the
following exceptions to the rule: (1) where the question is purely legal, (2) where
judicial intervention is urgent, (3) where its application may cause great and
irreparable damage, (4) where the controverted acts violate due process, (5) failure
of a high government official from whom relief is sought to act on the matter, and
(6) when the issue for non-exhaustion of administrative remedies has been
rendered moot. (See Severino S. Tabios, Annotation on Failure to Exhaust
Administrative Remedies As a Ground for Motion to Dismiss, 165 SCRA 352, 357-362
[1988]).

In the instant case, the only reason advanced by petitioner was lack of enough
opportunity to do so. We disagree. Petitioner first learned of the promulgation of the
Resolution on 21 December 1996 through the 20 December 1996 issue of the
Manila Bulletin and formally received a copy of the Resolution on 3 January 1997.
They had sufficient time to file a motion for its reconsideration since the recall
election was scheduled on 25 January 1997. Instead of filing this petition on 6
January 1997, petitioners should have first filed a motion for reconsideration.

Verily, the principal issue in this case is focused on the factual findings of COMELEC.
Petitioners sought to disprove them by sworn statements which they attached to
the petition at bar. Obviously, these were not offered before the COMELEC, thus the
latter could not have passed upon their admissibility or probative value. It cannot
then be said that the COMELEC acted with grave abuse of discretion in ruling on the
recall on the basis of, among other things, the Report of its Municipal Election
Officer assigned in Basilisa, Surigao del Norte. The latter has in his favor the
presumption of regularity in the performance of his duty (Sec. 3(M), Rule 131, Rules
of Court). Petitioners had the burden to disprove that presumption, which they
miserably failed to do. They did not even assail the Report nor impute any improper
motive on the Election Officer as to create doubt as to the integrity of his Report.
Finally, the scheduled barangay election on 12 May 1997 is not the regular election
contemplated in Section 74(b) of the Local Government Code of 1991 whose
conduct is the basis for computing the one-year prohibited period. As we held in
Paras v. Commission on Elections (supra):

It would, therefore, be in keeping with the intent of the recall provision of the Code
to construe regular local election as one referring to an election where the office
held by the local elective official sought to be recalled could be contested and be
filled by the electorate.

Hence the holding of the recall election in question can be validly done at any time
before the commencement of the one (1) year period immediately preceding the
next general election for municipal elective officials in May of 1998.

IN VIEW OF ALL THE FOREGOING, the instant petition is DISMISSED for lack of merit
and the Temporary Restraining Order issued on 21 January 1997 is LIFTED. The
Commission on Elections is DIRECTED to set anew and hold the RECALL ELECTION in
question not later than 15 April 1997.

Costs against petitioners.

SO ORDERED.

Paras v. COMELEC Case Digest

Paras v. COMELEC
G.R. No. 123169 (November 4, 1996)

FACTS:
A petition for recall was filed against Paras, who is the incumbent Punong
Barangay. The recall election was deferred due to Petitioners opposition that under
Sec. 74 of RA No. 7160, no recall shall take place within one year from the date of
the officials assumption to office or one year immediately preceding a regular
local election. Since the Sangguniang Kabataan (SK) election was set on the first
Monday of May 2006, no recall may be instituted.

ISSUE:
W/N the SK election is a local election.

HELD:
No. Every part of the statute must be interpreted with reference to its context, and
it must be considered together and kept subservient to its general intent. The
evident intent of Sec. 74 is to subject an elective local official to recall once during
his term, as provided in par. (a) and par. (b). The spirit, rather than the letter of a
law, determines its construction. Thus, interpreting the phrase regular local
election to include SK election will unduly circumscribe the Code for there will
never be a recall election rendering inutile the provision. In interpreting a statute,
the Court assumed that the legislature intended to enact an effective law. An
interpretation should be avoided under which a statute or provision being
construed is defeated, meaningless, inoperative or nugatory.
Evardone v. Comelec, 204 SCRA 464, 472, December 2, 1991
Petitioner: Felipe Evardone
Respondents: Comelec, Alexander Apelado, Victorino Aclana and Noel Nival
Ponente: Padilla

Facts: Felipe Evardone the mayor of Sulat, Eastern Samar, having been elected to
the position during the 1988 local elections. He assumed office immediately after
proclamation. In 1990, Alexander R. Apelado, Victozino E. Aclan and Noel A. Nival
filed a petition for the recall of Evardone with the Office of the Local Election
Registrar, Municipality of Sulat. The Comelec issued a Resolution approving the
recommendation of Election Registrar Vedasto Sumbilla to hold the signing of
petition for recall against Evardone.

Evardone filed a petition for prohibition with urgent prayer of restraining order
and/or writ of preliminary injunction. Later, in an en banc resolution, the Comelec
nullified the signing process for being violative of the TRO of the court. Hence, this
present petition.

Issue 1: WON Resolution No. 2272 promulgated by the COMELEC by virtue of its
powers under the Constitution and BP 337 (Local Government Code) was valid.
Held: Yes
Ratio: Evardone maintains that Article X, Section 3 of the 1987 Constitution
repealed Batas Pambansa Blg. 337 in favor of one to be enacted by Congress. Since
there was, during the period material to this case, no local government code
enacted by Congress after the effectivity of the 1987 Constitution nor any law for
that matter on the subject of recall of elected government officials, Evardone
contends that there is no basis for COMELEC Resolution No. 2272 and that the recall
proceedings in the case at bar is premature.
The COMELEC avers that the constitutional provision does not refer only to a local
government code which is in futurum but also in esse. It merely sets forth the
guidelines which Congress will consider in amending the provisions of the present
LGC. Pending the enactment of the amendatory law, the existing Local Government
Code remains operative.
Article XVIII, Section 3 of the 1987 Constitution express provides that all existing
laws not inconsistent with the 1987 Constitution shall remain operative, until
amended, repealed or revoked. Republic Act No. 7160 providing for the Local
Government Code of 1991, approved by the President on 10 October 1991,
specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of said Act. But
the Local Government Code of 1991 will take effect only on 1 January 1992 and
therefore the old Local Government Code (B.P. Blg. 337) is still the law applicable to
the present case. Prior to the enactment of the new Local Government Code, the
effectiveness of B.P. Blg. 337 was expressly recognized in the proceedings of the
1986 Constitutional Commission. We therefore rule that Resolution No. 2272
promulgated by the COMELEC is valid and constitutional. Consequently, the
COMELEC had the authority to approve the petition for recall and set the date for
the signing of said petition.
Issue 2: WON the TRO issued by this Court rendered nugatory the signing
process of the petition for recall held pursuant to Resolution No. 2272.
Held: No
Ratio: In the present case, the records show that Evardone knew of the Notice of
Recall filed by Apelado, on or about 21 February 1990 as evidenced by the Registry
Return Receipt; yet, he was not vigilant in following up and determining the
outcome of such notice. Evardone alleges that it was only on or about 3 July 1990
that he came to know about the Resolution of the COMELEC setting the signing of
the petition for recall on 14 July 1990. But despite his urgent prayer for the issuance
of a TRO, Evardone filed the petition for prohibition only on 10 July 1990. Indeed,
this Court issued a TRO on 12 July 1990 but the signing of the petition for recall took
place just the same on the scheduled date through no fault of the COMELEC and
Apelado. The signing process was undertaken by the constituents of the
Municipality of Sulat and its Election Registrar in good faith and without knowledge
of the TRO earlier issued by this Court. As attested by Election Registrar Sumbilla,
about 2,050 of the 6,090 registered voters of Sulat, Eastern Samar or about 34%
signed the petition for recall. As held in Parades vs. Executive Secretary there is no
turning back the
clock.
The right to recall is complementary to the right to elect or appoint. It is included in
the right of suffrage. It is based on the theory that the electorate must maintain a
direct and elastic control over public functionaries. It is also predicated upon the
idea that a public office is "burdened" with public interests and that the
representatives of the people holding public offices are simply agents or servants of
the people with definite powers and specific duties to perform and to follow if they
wish to remain in their respective offices. Whether or not the electorate of Sulat has
lost confidence in the incumbent mayor is a political question. It belongs to the
realm of politics where only the people are the judge. "Loss of confidence is the
formal withdrawal by an electorate of their trust in a person's ability to discharge his
office previously bestowed on him by the same electorate. The constituents have
made a judgment and their will to recall Evardone has already been ascertained and
must be afforded the highest respect. Thus, the signing process held last 14 July
1990 for the recall of Mayor Felipe P. Evardone of said municipality is valid and has
legal effect.
However, recall at this time is no longer possible because of the limitation provided
in Sec. 55 (2) of B.P. Blg, 337. The Constitution has mandated a synchronized
national and local election prior to 30 June 1992, or more specifically, as provided
for in Article XVIII, Sec. 5 on the second Monday of May, 1992. Thus, to hold an
election on recall approximately seven (7) months before the regular local election
will be violative of the above provisions of the applicable Local Government Code