JOSE L. ONG, JR., PETITIONER, VS. COMMISSION ON ELECTIONS AND WILMAR P. LUCERO, RESPONDENTS.

Unsatisfied with Our Decision of December 23, 1992, public
respondent Commission on Elections (COMELEC) and private respondent filed
separate motions for reconsideration and clarification on January 13, 1993 and
January 19, 1993, respectively.

In the aforesaid Decision, We decreed as follows:

“WHEREFORE, the petition for certiorari is granted and
a writ of preliminary injunction is hereby ISSUED directing the COMELEC to
CEASE and DESIST from implementing its order of June 2, 1992 and its resolution
dated June 13, 1992 and the same are hereby declared NULLIFIED. Consequently, the election returns based on
the recounted ballots from precinct 16 are hereby DISCARDED and in lieu
thereof, authentic returns from said precinct should instead be made the basis
to the canvassing. The Provincial Board
of Canvassers of Northern Samar is hereby directed to PROCEED WITH DISPATCH in
the canvassing of ballots until completed to PROCLAIM the duly elected winner
of the congressional seat for the Second District of Northern Samar.

This decision is immediately executory.

SO ORDERED.”

In its motion for reconsideration and clarification, respondent
COMELEC contends that:

“(a) Section 3 of Article IX-C of the
Constitution mandating that ‘all such election cases shall be heard and decided
in division’ is not an absolute rule;

(b) the matter brought before the Commission in
SPA 92-282, filed on May 25, 1992 is not a pre-proclamation controversy because
as early as May 22, 1992 the Provincial Board of Canvassers of Northern Samar
adjourned its session ‘until further order from the Commission, Manila,’
consequently, the petition to suspend ‘would not have affected the proceedings
of the board since what was prayed for thereunder was in the first place
already a fait accompli:’

(c) the petition did not, contrary to the
findings of this Court, contain pre-proclamation matters under Sections 233,
234, 235, and 236 of the Omnibus Election Code considering that:

(1) as regards precinct 13, no election was held
as there was snatching of the ballot box the day before the elections:

(2) with respect to Precinct 16, the loss of all
copies of the election returns does not fall within the purview of Sections
234, 235 and 236; it could fall within the contemplation of Section 233 which
speaks of loss of a copy of the election returns intended for the board
of canvassers:

(3) the same is true with respect to Precinct 7
where the Provincial Board of Canvassers’ copy of the election returns was
illegible.

(d) The Omnibus Election
Code and Republic Act No. 7166 authorize the opening of the ballot box to
recount the votes.”

It further asks clarification on the following:

“(a) that portion of the dispositive portion of
the Decision directing the Provincial Board of Canvassers to proceed with
dispatch ‘in the canvassing of ballots until completed and to proclaim the duly
elected winner x x x,’ considering that under Section 28(d) of R.A. No. 7166
the duty of the Provincial Board of Canvassers is to canvass certificates
of canvass. It is the
Board of Election Inspectors at the precinct level which is mandated by law to
count the ballots. Besides, said
directive virtually by-passed the COMELEC which is the agency granted by law
with control and supervision over all boards of canvassers in every election;
hence, it should be the COMELEC which should be directed.

(b) The Provincial Board of Canvassers would be
in a quandary in the implementation of the above directive for the Decision
does not state where the election returns for precincts 7, 13 and 16 needed by
the Board to complete the canvass will come from since in the case of precinct
16 the returns prepared by the special board of election inspectors constituted
by the COMELEC pursuant to the questioned orders was ordered ‘DISCARDED:’ with
respect to precinct 7, it would be difficult to comply with the directive because
while the COMELEC ordered the use of the COMELEC copy of the returns in its
possession for purposes of the provincial canvass, the Decision nullified
said order; and as regards Precinct 13, there was failure of election. Besides, this Court did not mention the step
to be taken by COMELEC in respect to Precinct 13 in view of the failure of
election. Under Section 4 of R.A. No.
7166, only the COMELEC en banc is empowered to declare a failure
of election and to call a special election.

(c) The Decision makes the following findings of
fact:

‘On June 13, 1992 the COMELEC in an en banc
resolution (a) denied Lucero’s prayer for a correction of certificates of
canvass from Las Navas equivalent to 20 votes. x x x’

however, four out of the
seven Commissioners who signed it made the qualification, at the bottom of the
signature page that they vote in favor of the resolution except that portion
thereof denying the correction of the certificate of canvass for Las Navas;
hence, the result is that the COMELEC granted the correction.”

In his motion for reconsideration and clarification, private
respondent also discusses the grounds relied upon by the public respondent, and
adds that:

“(a) While the decision treats of the issue of
special election sought by Lucero in Precinct 13 of Silvino Lobos, it makes no
specific pronouncement on it:

(b) While the dispositive portion of the Decision declares NULLIFIED the
COMELEC order of June 2, 1992 and its resolution dated 13 June 1992, it
selectively upholds the implementation of the COMELEC resolution as regards
Precinct 7 and selectively rejects the same as regards Precinct 16. Since it ruled ‘that election cases which
include pre-proclamation controversies must first be heard and decided by a division
of the COMELEC, then it should have left all matters relating to Precincts 7
and 16 to a Division.”

Petitioner traverses the motions for reconsideration and
clarification in his Opposition and Comment and prays that the same be
denied. He, nevertheless, recommends
that in view of the COMELEC’s clarificatory motion and his own comment, and in
order to forestall any further delay in the final disposition of the present
dispute, the Decision be modified to reflect very clearly the following:

“5.1.1. That after discarding the election returns
based on the erroneously recounted ballots for Precinct 16, referral to other
authentic copies of the election returns should be dispensed with, there being
none available. And that NO
further RECOUNT should be conducted, as the same is not authorized.

5.1.2. That the results of Comelec copy of the election returns for Precinct 7,
as canvassed by the special MBC of Silvino Lobos, and transposed into the
Municipal Certificate of Canvass, which was also canvassed by the SPECIAL
Provincial Board of Canvassers of Northern Samar be INCORPORATED into the
previous totals. Additionally, it must
be made clear that the canvass by the MBC [of the election return] and the PBC
[of the Municipal Certificate of Canvas] is no longer APPEALABLE to the
Comelec, being in the nature of a pre-proclamation controversy, disallowed
under Section 15 of Rep. Act No. 7166.

5.1.3. That while acknowledging that power of the Comelec to call for special
elections, it must he declared that in Precinct 13 of Silvino Lobos, such
special election would be impractical, if not unnecessary, as the results will
no longer be affected.

5.1.4. That the BODY that should reconvene to implement the decision of the
Honorable Court must be specified as the SPECIAL Provincial Board of
Canvassers of Norther Samar, created under Comelec Resolution No. 92-1813,
composed of Atty. Felix Balalio, as Chairman: Atty. Manuel Conti and Atty. Moises Pernez, as members, considering that
said SPECIAL PBC has effectively superseded the regular PBC of
Northern Samar.

5.1.5. AND finally, with the annulment of the June 2, 1992 Order of the
Comelec, that it must be reiterated the said SPECIAL PBC of Northern
Samar reconvene immediately, proceed with dispatch tabulating the totals, and
then PROCLAIM the duly elected winner for the congressional seat for the Second
District of Northern Samar in the person of petitioner JOSE L. ONG, Jr..”

Private respondent filed a Rejoinder to the Opposition and
Comment.

Deliberating on the motions for reconsideration and
clarification, the comment thereon and the rejoinder to the latter, this Court
finds the motions to partially impressed with merit.

1.  A careful examination of
the signature page (page 8) of the June 13, 1992 Resolution (Annex
“B” of Petition) discloses that at the bottom thereof, particularly
below the signatures of the Chairman and the six Commissioners there appears an
entry which is followed by the signatures of a majority of the Commission,
namely, Chairman Christian S. Monsod, Commissioners Haydee B. Yorac, Dario C.
Rama and Regalado E. Maambong. Said
entry reads, as follows:

“We vote in favor of this resolution except that portion which
denied the correction of the Certificate of Canvass for Las Navas. Correction of the Certificate of Canvass for
Las Navas is in order in view of the testimony of the election registrar of Las
Navas to the effect that Wilmar Lucero garnered 2,537 votes for Las Navas and
not 2,517. Petition for correction was
duly filed by Lucero with the Provincial Board of Canvassers of Northern Samar
on May 19, 1992. The Provincial Board
of Canvassers of Northern Samar is wherefore directed to retabulate the total
number of votes for Las Navas for Lucero and enter the same in the Provincial
Certificate of Canvass.”

It is evident that they thus voted to grant
the correction.

Petitioner’s contention in his Opposition and Comment that the
above entry “was categorically denominated as an irregular INSERTION as the
same was effected without the knowledge of the ponente, and after the
Commissioners have already agreed to, and have signed the resolution of DENIAL
of the correction,” is implausible. It
is to be observed that the petitioner annexed a copy of the Resolution to his
petition without imputing any irregularity in the signing thereof. Thus, the resolution enjoys the presumption
of regularity. Accordingly, the opening
clause of the first paragraph of page 4 of the Decision should be corrected to
read as follows:

“On June 13, 1992, the COMELEC in an en banc
resolution (a) GRANTED Lucero’s prayer for correction of certificates of
canvass from Las Navas equivalent to 20 votes; x x x”

2.  Upon a further
painstaking examination and review of the pleadings of the parties, we find
that indeed, the petition filed by private respondent on May 25, 1992 (Annex
“C” of Petition) is not exclusively confined to pre-proclamation
controversies. This is borne out by its
prayer which reads:

“WHEREFORE, it is respectfully prayed of this Honorable
Commission that It:

A. Forthwith order Respondent Provincial Board
of Canvassers for Northern Samar to suspend the proclamation of Private
Respondent Jose L. Ong Jr.;

B. Direct Respondent Provincial Board of
Canvassers for Northern Samar to correct the Certificate of Canvass (CEF 20)
for Las Navas and, accordingly, to correct the total votes so far counted by it
for Petitioner from 24,068 to 24,088, thus reducing the margin it found in
favor of the Private Respondent Jose L. Ong Jr. from 204 to 184 votes only;

C. Order a special election in Precinct 13,
Barangay Gusaran, Silvino Lobos pursuant to Section 6 of the Omnibus Election
Code;

D. Order a recount of the votes for
Representative of the Second District of Northern Samar in Precinct 16,
Barangay Tubgon, and Precinct 7, Barangay Camayaan, both of Silvino Lobos,
pursuant to Section 234 of the Omnibus Election Code;

E. Order a recount of the votes for
Representative in the 52 precincts hereinabove enumerated in order to correct
‘manifest errors’ pursuant to Section 15 of Republic Act 7166 and for this
purpose order the impounding and safekeeping of the ballot boxes of all said
precincts in order to preserve the integrity of the ballots and other election
paraphernalia contained therein; and

F. Grant such other and
further reliefs as It shall consider just and proper in the premises.”

The COMELEC itself did not consider the petition as a
pre-proclamation controversy because it had docketed the case as a Special
Action or SPA pursuant to Section 4(c) on Docket and
assignment of numbers. Rule 7 of the COMELEC RULES OF PROCEDURE. Hence, the petition was docketed as SPA No. 92–282. The reason therefor could be that one of its
causes of action relates to the supposed failure of election in Precinct 13 of
Barangay Gusaran, Silvino Lobos, Northern Samar, and the necessity of holding a
special election therein (par. 10 [b]). In fact, one of the remedies sought, as above shown, is for the holding
of said special election. One of the
Special Actions prescribed by the COMELEC RULES OF PROCEDURE is for the failure
of election; the holding of a special election in such a situation is governed
by Rule 26 thereof.

As a matter of fact, petitioner went even further when he
unequivocally and vigorously asserted in his petition that there was no pre-proclamation
dispute between the parties herein. He
thus avers:

” 4.0

GROSS ERRORS Committed-Issue/s Raised:

4.1.  On the questioned ORDER [Annex ‘A’] — Glaring
on its face is the said Order directing the Provincial BOC-NS NOT TO
RECONVENE, was based on a patently erroneous proposition… THAT there was a pending pre-proclamation
controversy involving the congressional dispute between petitioner and private
respondent.

4.1.1.      Respondent COMELEC in directing the
Provincial BOC-NS NOT to reconvene, predicated its Order on the supposed
existence of a pre?proclamation controversy purported outstanding and
PENDING. BUT this is entirely and
totally INCORRECT, because factually and actually, there was NO such
pre-proclamation dispute between the parties herein.

4.1.2.      In fact, it is obvious that          there can be NO pre-proclamation
controversy pending, where the office involved is a NATIONAL office such as
that of a congressman, as in the instant case.

x x x.”

In view of our pronouncement to the contrary in the challenged
decision, petitioner now stoutly maintains that SPA No. 92-282 involves
pre-proclamation issues.

We are not bound by the expostulations of the parties. As we said earlier, SPA No. 92-282 does not
solely involve pre?proclamation controversies. On its face, only the following appear to be
pre-proclamation issues: (a) suspension
of proclamation, (b) correction of the certificate of canvass of Las Navas, (c)
recount of votes for Representative in the 52 precincts enumerated therein
because the votes for “Lucero” were declared stray votes when they
should have been credited to the private respondent, since the other candidate,
Alice D. Lucero, was disqualified as a substitute for one
Jesus C. Laodemio who had earlier withdrawn his candidacy and (d) the recount
of votes in Precinct Nos. 7 and 16.

Over these pre-proclamation issues, the COMELEC, sitting en
banc, has no original jurisdiction. Accordingly, we correctly voided its Order of June 2, 1992. However, as to the Resolution of June 13,
1992, our ruling thereon may be modified insofar as the matter of special
election in Precinct No. 13 of Silvino Lobos is concerned since the calling or
holding thereof is within the original jurisdiction of the COMELEC, sitting en
banc.

Considering, moreover, that the parties explicitly admit that all
copies of the election returns in Precinct No. 16 were lost, no canvassing of
election returns for said precinct could have been validly and legally
conducted by the Municipal Board of Canvassers. We, therefore, agree with the respondents that a recount of the
ballots in said precinct is proper. In
view of this special circumstance, we now rule that Sections 233, 234, 235 and
236 of the Omnibus Election Code are thus inapplicable since the instances
therein contemplated do not obtain with respect to said Precinct No. 16. Otherwise stated, no viable pre-proclamation
controversy may be said to have arisen therefrom. Consequently, with respect to said Precinct No. 16, the June 13,
1992 resolution is valid.

The correction of the certificate of canvass of Las Navas is
likewise in order. Even though a
pre-proclamation issue is Involved, the correction of the manifest error
is allowed under Section 15 of R.A. No. 7166.

Logically then, this case should be remanded to the COMELEC which
shall in turn refer SPA No. 92-282 to any of its Divisions, pursuant to its
rule on raffle of cases for the resolution of the pre-proclamation issues
therein raised.

IN VIEW OF ALL THE FOREGOING, the dispositive portion of
the December 23, 1992 Decision is hereby MODIFIED to read as follows:

“WHEREFORE, THE PETITION IS GRANTED. THE JUNE 2, 1992 ORDER OF RESPONDENT COMMISSION ON ELECTIONS IN
SPA NO. 92-282 IS HEREBY ANNULLED AND SET ASIDE. ITS JUNE 13, 1992 RESOLUTION THEREIN IS LIKEWISE ANNULLED AND SET
ASIDE INSOFAR AS IT AFFECTS PRECINCT NO. 7 OF SILVINO LOBOS, THE RECOUNT OF
VOTES IN THE 52 OTHER PRECINCTS AND THE CORRECTION OF THE CERTIFICATE OF
CANVASS OF LAS NAVAS, BUT IS AFFIRMED WITH RESPECT TO THE ISSUE OF HOLDING A SPECIAL
ELECTION IN PRECINCT NO. 13 AND THE RECOUNT OF THE BALLOTS IN PRECINCT NO. 16.

THE RESPONDENT COMMISSION ON ELECTIONS IS HEREBY DIRECTED TO ASSIGN
SPA NO. 92-282 TO ANY OF ITS DIVISIONS PURSUANT TO ITS RULE ON RAFFLE OF CASES
FOR IT TO RESOLVE THE PRE–PROCLAMATION ISSUES THEREIN TAKING INTO ACCOUNT THE
ABOVE PRONOUNCEMENTS AND THE EXCEPTIONS PROVIDED FOR IN SECTION 15 OF R.A. NO.
7166.

WHENEVER WARRANTED BY THE CIRCUMSTANCES, THE COMMISSION MAY (A)
CALL A SPECIAL ELECTION IN PRECINCT NO. 13 IN SILVINO LOBOS, NORTHERN SAMAR,
AND (B) RECONVENE THE SPECIAL MUNICIPAL BOARD OF CANVASSERS AND THE SPECIAL
PROVINCIAL BOARD OF CANVASSERS IT HAD EARLIER CONSTITUTED OR CREATE NEW ONES.

ALL THE FOREGOING SHOULD BE DONE WITH PURPOSEFUL DISPATCH TO THE
END THAT THE WINNING CANDIDATE FOR CONGRESSMAN REPRESENTING THE SECOND
CONGRESSIONAL DISTRICT OF NORTHERN SAMAR MAY BE PROCLAIMED AS SOON AS POSSIBLE.

This Resolution shall be immediately executory.

SO ORDERED.

Narvasa, C.J., Cruz, Padilla, Bidin, Griño-Aquino, Regalado,
Davide, Jr., Nocon, Bellosillo, Melo, and
Quiason, JJ., concur.

Feliciano, J., dissenting
opinion.