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Evardone v.

COMELEC
G.R. No. 94010 95063 Dec. 2, 1991 J. Padilla Dolot
petitioners Felipe Evardone
respondents COMELEC, Alexander Apelado, Victorino Aclan and Noel Aclan
summary Mayor Evardone challenges the constitutionality of COMELEC Reso 2272 based on Art. X
Sec. 3 Const., he claims that there is no LGC which will serve as basis for COMELEC in
issuing said Reso. Ct said that the LGC in place was BP 337. Thus, the assailed Reso is a
valid exercise of COMELECs powers based on Secs. 54 to 59 of BP 337.

Doctrine on effectivity of the LGC of 1991: Since the LGC of 1991 will take effect only on Jan.
1, 1992, the old LGC (BP 337) is still the law applicable to the present case.

facts of the case

Evardone is the mayor of the Municipality of Sulat, Eastern Samar, having been elected to the position
during the 1988 local elections. On Feb. 4, 1990, Apelado et al. filed a petition for recall of Evardone.
Thereafter, COMELEC issued Resolution No. 90-0557, which approved the recommendation of the Election
Registrar of Sulat, Eastern Samar to hold and conduct the signing of the petition for recall on Jul. 14, 1990.
COMELEC also has a prior resolution on recall proceedings, Resolution No. 2272 (based on the Const. and
Secs. 54 to 59) dated May 23, 1990.

On Jul. 10, 1990, Evardone filed before SC a petition for prohibition with urgent prayer for TRO, which SC
issued on Jul. 12. However, it was only on Jul. 15 that the field agent of COMELEC received the telegraphic
notice of the TROa day after the completion of the signing process. So, the signing process pushed through.

COMELEC thereafter nullified the signing process. Apelado et al. filed an MR, but COMELEC denied the
same.

Evardone now challenges the constitutionality of Resolution No. 90-0557, asserting that Art. X Sec. 3 of the
1987 Const. repealed BP 337.

EVARDONES CONTENTION: Art. X Sec. 3 provides that the Congress shall enact a LGC which shall
provide for mechanisms of recall, initiative, and referendum. His theory is that since there was, during the
period material to the case, no local LGC enacted by Congress after the effectivity of the 1987 Const., there is no
law which will serve as basis for the COMELEC Resolution.

COMELECS REBUTTAL: The constitutional provision does not refer only to a LGC which is in futurum
but also in esse. The adoption of the 1987 Const. did not abrogate the provisions of BP 337, unless a certain
provision thereof is clearly irreconcilable with the 1987 Const. In this case, there is no inconsistency, thus both
are operative.

issues WON Resolution No. 2272 is constitutional? YES


WON the TRO issued by SC rendered nugatory the signing process of the petition for recall
held pursuant to Resolution No. 2272? NO

1
ratio
1. First, the applicable law is BP 337.

Art. XVIII Sec. 3 of the 1987 Const. expressly provides that all existing laws not inconsistent with the
1987 Const. shall remain operative, until amended, repealed or revoked. RA 7160, providing for the LGC of
1991, approved by the President on Oct. 10, 1991 specifically repeals BP 337, as provided in Sec. 534 Title IV
of said Act. But RA 7160 will take effect only on Jan. 1, 1992 and therefore, the old LGC BP 337is still
the law applicable to the present case. This was also discussed by the Const. Commissioner Nolledo during
the Const. deliberations.

2. The assailed Resolution is based on Secs. 54 to 59 of BP 337. It is constitutional.

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

3. The TRO does not render nugatory the signing process; it is valid and has a legal effect. However,
herein petitions have become moot and academic.

Records show that Evardone knew of the Notice of Recall as early as on Feb 1990, but he was not
vigilant in following it up and determining the outcome of such notice. As attested by Election Resgistrar,
34% signed the petition for recall. There is no turning back the clock.

WON the electorate of the Municipality of Sulat has lost confidence in the incumbent mayor is a
political question.

HOWEVER, recall at this time is no longer possible because of the limitation provided in Sec. 55 (2) of
BP 337, which states:

Sec. 55. Who May be Recalled; Ground for Recall; When Recall may not be held
(2) No recall shall take place within 2 yrs from the date of the officials assumption of office or 1 year
immediately preceding a regular local election.

The Const. has mandated a synchronized natl and local election on May 2, 1992. Thus, to hold an
election on recall approximately 7 months before the regular local election will be violative of the above
provisions of the applicable LGC (BP 337).

Accordingly, the petitions are dismissed for having become moot and academic.