FELIPE EVARDONE, PETITIONER, VS. COMMISSION ON ELECTIONS, ALEXANDER APELADO, VICTORINO E. ACLAN AND NOEL A. NIVAL, RESPONDENTS.

These two (2) consolidated petitions have their origin in en
banc Resolution No. 90-0557 issued by the respondent Commission on
Elections (COMELEC) dated 20 June 1990 which approved the recommendation of the
Election Registrar of Sulat, Eastern Samar to hold and conduct the signing of
the petition for recall of the incumbent Mayor of Sulat, Eastern Samar, on 14
July 1990.

G.R. No. 94010 is a petition for prohibition with an urgent
prayer for immediate issuance of a restraining order and/or writ of preliminary
injunction to restrain the holding of the signing of the petition for recall on
14 July 1990.

G.R. No. 95063 is a petition for review on certiorari
which seeks to set aside en banc Resolution No. 90-0660 of the
respondent COMELEC nullifying the signing process held on 14 July 1990 in
Sulat, Eastern Samar for the recall of Mayor Evardone of said municipality and en
banc Resolution No. 90-0777 denying petitioners’ motion for
reconsideration, on the basis of the temporary restraining order issued by this
Court on 12 July 1990 in G.R. No. 94010.

Felipe Evardone (hereinafter referred to as Evardone) is the
mayor of the Municipality of Sulat, Eastern Samar, having been elected to the position during the 1988 local elections.  He assumed office immediately after procla­mation.

On 14 February 1990, Alexander R. Apelado, Victorino E. Aclan and
Noel A. Nival (hereinafter referred to as Apelado, et al.) filed a petition for
the recall of Evardone with the Office of the Local Election Registrar,
Municipality of Sulat.

In a meeting held on 20 June 1990, the respondent COMELEC issued
Resolution No. 90-0557, approving the recom­mendation of Mr. Vedasto B.
Sumbilla, Election Registrar of Sulat, Eastern Samar, to hold on 14 July 1990
the signing of the petition for recall against incumbent Mayor Evardone of the
said Municipality.

On 10 July 1990, Evardone filed before this Court a petition for
prohibition with urgent prayer for immediate issuance of restraining order
and/or writ of preliminary injunction, which was docketed as G.R. No. 94010.

On 12 July 1990, this Court resolved to issue a temporary
restraining order (TRO), effective immediately and continuing until further
orders from the Court, ordering the respondents to cease and desist from
holding the signing of the petition for recall on 14 July 1990, pursuant to
respondent COMELEC’s Resolution No. 2272 dated 23 May 1990.

On the same day (12 July 1990), the notice of TRO was received by
the Central Office of the respondent COMELEC. 
But it was only on 15 July 1990 that the field agent of the respondent
COMELEC received the telegraphic notice of the TRO – a day after the completion
of the signing process sought to be temporarily stopped by the TRO.

In an en banc resolution (No. 90-0660) dated 26
July 1990, the respondent COMELEC nullified the signing process held in Sulat,
Eastern Samar for being violative of the order (the TRO) of this Court in G.R.
No. 94010.  Apelado, et al., filed a
motion for reconsideration and on 29 August 1990, the respondent COMELEC denied
said motion holding that:

“x x x.  The critical
date to consider is the service or notice of the Restraining Order on 12 July
1990 upon the principal i.e. the Commis­sion on Election, and not upon its
agent in the field.”^[1]

Hence, the present petition for review on
certiorari in G.R. No. 95063 which seeks to set aside en banc
Resolution No. 90-0660 of respondent COMELEC.

In G.R. No. 94010, Evardone contends that:

“I.  The COMELEC
committed grave abuse of discretion in approving the recommendation of
the Election Registrar of Sulat, Eastern Samar to hold the signing of the
petition for recall without giving petitioner his day in court.

II.  The COMELEC
likewise committed grave abuse of discretion amounting to lack or excess
of jurisdiction in promulgating Resolution No. 2272 on May 22, 1990 which is
null and void for being unconstitutional.”^[2]

In G.R. No. 95063, Apelado, et al., raises the issue of whether
or not the signing process of the petition for recall held on 14 July 1990 has
been rendered nugatory by the TRO issued by this court in G.R. No. 94010 dated
12 July 1990 but received by the COMELEC field agent only on 15 July 1990.

The principal issue for resolution by the Court is the
constitutionality of Resolution No. 2272 promulgated by respondent COMELEC on 23 May 1990 by virtue of its
powers under the Constitution and Batas Pambansa Blg. 337 (Local Government
Code).  The resolution embodies the
general rules and regulations on the recall of elective provincial, city and
municipal officials.

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.  Said Section 3 provides:

“Sec. 3.  The Congress
shall enact a local government code which shall provide for a more responsive
and accountable local government structure instituted through a system of
decentra­lization with effective mechanisms of recall, initiative, and
referendum, 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.”

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 respondent COMELEC, in its Comment (G.R. No.  94010), 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 Local
Government Code.  Pending the enactment
of the amendatory law, the existing Local Government Code remains
operative.  The adoption of the 1987
Constitution did not abrogate the provisions of BP No. 337, unless a certain
provision thereof is clearly irreconciliable with the provisions of the 1987
Constitution.  In this case, Sections 54
to 59 of Batas Pambansa No. 337 are not inconsistent with the provisions of the
Constitution.  Hence, they are
operative.”^[3]

We find the contention of the respondent COMELEC meritorious.

Article XVIII, Section 3 of the 1987 Constitution expressly
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.  Thus –

“MR. NOLLEDO.  Besides,
pending the enactment of a new Local Government Code under the report of the
Committee on Amendments and Transitory Provi­sions, the former Local Government
Code, which is Batas Pambansa Blg. 337 shall continue to be effective until
repealed by the Congress of the Philippines.”^[4]

Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the
mechanism for recall of local elective officials.  Section 59 expressly authorizes the respondent
COMELEC to conduct and supervise the process of and election on recall and in
the exercise of such powers, promulgate the necessary rules and regulations.

The Election Code contains no special provisions on the manner of
conducting elections for the recall of a local official.  Any such election shall be conducted in the
manner and under the rules on special elections, unless otherwise provided by
law or rule of the COMELEC.^[5]
Thus, pursuant to the rule-making power vested in respondent COMELEC, it
promulgated Resolution No. 2272 on 23 May 1990.

We therefore rule that Resolution No. 2272 promulgated by
respondent COMELEC is valid and constitutional. 
Conse­quently, the respondent COMELEC had the authority to approve the
petition for recall and set the date for the signing of said petition.

The next issue for resolution is whether or not the TRO issued by
this Court rendered nugatory the signing process of the petition for recall
held pursuant to Resolution No. 2272.

In Governor Zosimo J. Paredes, et al. vs. Executive Secretary to the President of
the Philippines, et al.,^[6]
this Court held:

“x x x.  What is sought
in this suit is to enjoin respondents particularly respondent Commission from
implementing Batas Pambansa Blg. 86 specifically ‘from conducting, holding and
undertaking the plebiscite provided for in said act.’ The petition was filed on
December 5, 1980.  There was a plea for a restraining order, but
Proclamation No. 2034 fixing the date for such plebiscite on December 6, 1980
had been issued as far as back
as November 11, 1980.  Due to this delay
in filing this suit, attributable solely to petitioners, there was no time even
to consider such a plea.  The plebiscite
was duly held.  The certificate of
canvass and proclamation of the result disclosed that out of 2,409 total votes
cast in such plebiscite, 2,368 votes were cast in favor of the creation of the
new municipality, which, according to the statute, will be named municipality
of Aguinaldo.  There were only 40 votes
cast against.  As a result, such
municipality was created.  There is no
turning back the clock.  The moot and
academic character of this petition is thus apparent.”

In the present case, the
records show that Evardone knew of the Notice of Recall filed by Apelado, et
al. 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 respondent
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 respondent COMELEC and Apelado, et al.  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 Paredes vs. Executive Secretary^[7]
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.”^[8]

Whether or not the electorate of the Municipality 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.^[9]
“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.”^[10]
The consti­tuents have made a judgment and their will to recall the incumbent
mayor (Evardone) has already been ascertained and must be afforded the highest
respect.  Thus, the signing process held
last 14 July 1990 in Sulat, Eastern Samar, 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, which states:

“SEC. 55.  Who May Be
Recalled; Ground for Recall; When Recall May not be Held. – x x x

(2) No recall shall
take place within two years from the date of the official’s assumption of
office or one year immediately preceding a regular local election.”

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.^[11]
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 (B.P. Blg. 337).

ACCORDINGLY, both petitions are DISMISSED for having
become moot and academic.

SO ORDERED.

Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Bidin, Grino-Aquino, Medialdea, Regalado, Davide, Jr., and Romero, JJ.,
concur.

Fernan, C.J., on leave.

^[1]
G.R. No. 95063, Rollo, p. 16

^[2]
G.R. No. 94010, Rollo, p. 4

^[3]
G.R. No. 94010, Rollo, p. 50

^[4]
Record of the Constitutional Commission, Vol. III, p. 400

^[5]
ANTONIO ORENDAIN, PHILIPPINE LOCAL GOVERNMENT ANNOTATED (1983)

^[6]
G.R. No. 55628, March 2, 1984, 128 SCRA 6

^[7]
Supra.

^[8]
Orendain, supra, p. 87

^[9]
Lawyers’ League For A Better Philippines vs. President Corazon C.
Aquino, G.R. Nos. 73748, 73972, 73990, May 22, 1986

^[10]
Orendain, supra, p. 87

^[11]
Governor Emilio M. R. Osmeña, et al. vs. Commission, et al., G.R. No. 100318, 30 July 1991