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

After the issues had been joined in these consolidated cases, the
Court resolved to give due course to the petitions therein and to decide the
cases on the merits. It can no longer
allow the parties to delay these cases. Their legal skirmishes, which have unduly magnified uncomplicated
issues, have effectively deprived the people of the Second Legislative District
of Northern Samar of representation in the House of Representatives for more
than two years now.

These cases are sequels to G.R. No. 105717, entitled “Jose L. Ong, Jr. vs. Commission on Elections and Wilmar P. Lucero,”
which we finally resolved on 22 April 1993.^[1] The
petitioners were two of the five candidates^[2] for
the Second Legislative District of Northern Samar in the synchronized national
and local elections held on 11 May 1992.

The canvass of the Provincial Board of Canvassers (PBC) of
Northern Samar credited Jose L. Ong, Jr. with 24,272 votes and Wilmar P. Lucero
with 24,068 votes, or a lead by Ong of 204 votes. However, this tally did not include the results of Precinct No. 7
of the municipality of Silvino Lobos, where the submitted election returns had
not been canvassed because they were illegible; of Precinct No. 13 of Silvino
Lobos, where the ballot boxes were snatched and no election was held; and of Precinct No. 16, also of Silvino
Lobos, where all copies of the election returns were missing.

On 22 May 1992, Lucero asked the Commission on Elections
(COMELEC), in SPA No. 92-282, to:

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

2. 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 Private Respondent Jose L. Ong, Jr. from 204 to 184 votes only;

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

4. 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;

5. Order
a recount of the votes for Representative in the 52 precincts herein above
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.”^[3]

On 2 June 1992, the COMELEC, acting on Lucero’s urgent
manifestation, directed the PBC to desist from reconvening until further
orders.

On 8 June 1992, Ong moved to lift the suspension of the proceedings by the PBC, which
Lucero opposed on 10 June 1992 on the ground that the canvass could not be
completed even if the PBC were to reconvene because no election was held in
Precinct No. 13 (Barangay Gusaran) of Silvino Lobos and there was no canvassing
of the votes in Precinct No. 7 (Barangay Camayaan) and Precinct No. 16
(Barangay Tubgon) both of Silvino Lobos.

On 13 June 1993, the COMELEC en banc promulgated a
resolution, the dispositive portion of which reads:

“Accordingly, the Commission hereby orders the Provincial
Election, Supervisor of Northern Samar to bring to the Commission within three
(3) days from receipt hereof the ballot boxes from Precinct 7 and 16 of Silvino
Lobos, to be escorted by representatives from the petitioner and the
respondents as well as other parties who have an interest to protect, and too
notify said parties hereof. The
Municipal Treasurer of said town is directed to turn over custody of said
ballot boxes to the Provincial Election Supervisor, and the keys thereof shall
likewise be turned over by the appropriate officials in custody thereof to the
PES, who shall in turn give one key for each ballot box to the duly authorized
representatives of the petitioner and the respondent.

The Commission likewise orders the Election Registrar of Silvino
Lobos, Northern Samar, and the Chairman and members of the Boards of Election
Inspectors of Precincts 7 and 16 of said municipality to appear before the
Commission within three (3) days from receipt hereof.”

Below the signatures of the Chairman and the six Commissioners,
however, Chairman Christian S. Monsod and Commissioners Haydee B. Yorac, Dario
C. Rama, and Regalado E. Maambong directed 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 therefore directed to retabulate the total
number of votes for Las Navas for Lucero and enter the same in the Provincial
Certificate of Canvass.”^[4]

On 15 June 1992, Lucero filed an urgent motion to constitute a
Special Board of Election Inspectors (SBEI) to count the votes of Precincts
Nos. 7 and 16 of Silvino Lobos.^[5]

On 20 June 1992, Ong, in a special civil action for certiorari filed with this Court and subsequently docketed as G.R. No. 105717, questioned the order for the
recount of ballots in Precincts No. 7 and 16. Despite the pendency of this petition, the COMELEC ordered the recount of the ballots in Precinct No. 16 by
a SBEI which recorded 43 votes for Lucero and 2 votes for Ong.^[6]

On 25 June 1992, this Court issued in G.R. No. 105717 a temporary
restraining order against the implementation by the COMELEC of its Order of 2 June 1992 and its Resolution of 13 June
1992.

On 23 December 1992, this Court promulgated its decision in G.R.
No. 105717,^[7]
the dispositive portion of which reads:

“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 a basis for the
canvassing. The Provincial Board of
Canvassers of Northern Samar is hereby directed to PROCEED WITH DISPATCH in the
canvassing of ballots until completed and to PROCLAIM the duly elected winner
of the congressional seat for the Second District of Northern Samar.

This decision is immediately executory.”^[8]

Acting on the motions for reconsideration and clarification
respectively filed by the COMELEC and
Lucero, this Court, on 22 April 1993,
modified^[9] its aforesaid disposition in G.R. No. 105717
as follows:

“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 OF 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.’”^[10]

As to the certificate of canvass of the municipality of Las
Navas, this Court explicitly stated:

“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.”^[11]

Conformably with the aforesaid modified judgment in G.R. No.
105717, SPA No. 92-282 was raffled to the First Division of the COMELEC which
conducted hearings thereon and received the arguments and evidence of both
parties who then submitted their respective memoranda on 25 June 1994. However,
during the consultations on the case by the Members of the First Division, the
concurrence of at least two of them could not be obtained; accordingly,
pursuant to the COMELEC Rules, the case was elevated for proper disposition to
the COMELEC en banc to which the parties submitted their
respective memoranda on 19 November 1993.^[12]

On 7 January 1994, the COMELEC en banc promulgated
a resolution^[13]
whose dispositive portion reads as follows:

“1.  To
direct the special Provincial Board of Canvassers for Northern Samar (a) to
include in the municipal certificate of canvass of Silvino Lobos the
forty-three (43) votes of petitioner Lucero and the two (2) votes of private
respondent Ong as reflected in the election returns of Precinct No. 16
(Barangay Tubgon) prepared by the special Board of Election Inspectors
constituted by the Commission to recount the votes (ballots) in said precinct,
as canvassed by the special Municipal Board of Canvassers for Silvino Lobos;
(b) to include in the municipal certificate of canvass of Silvino Lobos, the
sixty-one (61) votes of private respondent Ong and 29, 30, or 31 votes of
petitioner Lucero as reflected in the election returns (MBC Copy submitted as ‘Comelec
Copy’) of Precinct No. 7 (Barangay Camaya-an), as canvassed by the special
Municipal Board of Canvassers for Silvino Lobos; (c) to retabulate the total
number of votes of petitioner Lucero for the Municipality of Las Navas and to
enter in the provincial certificate of
canvass the correct total which is two thousand five hundred thirty-seven
(2,537) as reflected in the Statement of Votes (C.E. Form 20-A) prepared and
submitted by the Municipal Board of Canvassers for Las Navas; and (d) to submit
to the Commission a computation of the votes of the contending parties
including therein all the votes of petitioner Lucero (with alternative totals)
and private respondent Ong, in Precinct Nos. 7 and 16 of Silvino Lobos and the
total votes of petitioner Lucero in the Municipality of Las Navas as
corrected. However, under no
circumstances should the Board proclaim any winning candidate until instructed
to do so by the Commission;

2. To issue an Order calling for a special
election in the last remaining Precinct No. 13 (Barangay Gusaran) of the
Municipality of Silvino Lobos if justified by the result of the canvass by the
Provincial Board of Canvassers for Northern Samar, and to notify the parties of
the schedule of election activities for that precinct; and

3. After including in the tabulation the
results of the special election of Precinct No. 13, to decide the issue of the
recount of the votes (ballots) of Precinct No. 7 of Silvino Lobos, pursuant to
Section 236 of the Omnibus Election Code, to resolve the discrepancy of the
votes of petitioner Lucero in the same return, if such discrepancy of votes of
the candidates concerned would affect the over-all results of the election
after the totality of the votes of the contending parties shall have been determined.”

Both Lucero and Ong have come to this Court by way of separate
special civil actions for certiorari to challenge the Resolution.

In G.R. No. 113107, Lucero maintains that (1) the count of the
ballots in Precinct No. 7 of Silvino Lobos must be unconditional because the
election returns therefrom are invalid; and (2) his chances in the special
election in Precinct No. 13 of Silvino Lobos would be spoiled if the returns
for Precinct No. 7 were to be included beforehand in the canvass.

In G.R. No. 113509, Ong questions (1) the authority of the
COMELEC to order the correction of the alleged manifest error in the Municipal
Certificate of Canvass of Las Navas despite the absence of any appeal; and (2)
the authority of the COMELEC to call for a special election in Precinct No. 13
almost two years after the regular election.

As we see it, the core issues in these consolidated cases are:

(1) Whether there should first be a count of the
ballots of Precinct No. 7 of Silvino Lobos before determining the necessity of
holding a special election in Precinct No. 13 of Silvino Lobos;

(2) Whether the COMELEC acted with grave abuse
of discretion in ordering the correction of the alleged manifest error in the
Municipal Certificate of Canvass of Las Navas; and

(3) Whether the COMELEC acted with grave abuse
of discretion in calling for a special election in Precinct No. 13 after almost
two (2) years, or more specifically after one (1) year and ten (10) months, following the day of the
synchronized elections.

We shall take up these issues seriatim.

I.

The answer to the first issue is in the affirmative.

We find the COMELEC’s disposition regarding Precinct No. 7 to be
unclear. In the first paragraph of the
dispositive portion of the challenged resolution, it directs the Provincial
Board of Canvassers “to include in the municipal certificate of canvass of
Silvino Lobos the sixty-one (61) votes of private respondent Ong and 29, 30, or
31 votes of petitioner Lucero as reflected in the election returns (MBC copy
submitted as “COMELEC Copy”) of Precinct No. 7 (Barangay Camaya-an),
as canvassed by the special Municipal Board of Canvassers for Silvino
Lobos,” and “to submit to the Commission a computation of the votes
of the contending parties including therein all the votes of petitioner Lucero
(with alternative totals) and private respondent Ong, in Precinct Nos. 7 and 16
of Silvino Lobos….” On the other hand, in the fourth paragraph of the
said dispositive portion, it orders the
Provincial Board of Canvassers, after “including in the tabulation the
results of the special election of Precinct No. 13,” to “decide the
issue of the recount of the votes (ballots) of Precinct No. 7 of Silvino Lobos, pursuant to Section 236
of the Omnibus Election Code [and] to resolve the discrepancy of the votes of
petitioner Lucero in the same return, if such discrepancy of votes of the
candidate concerned would affect the over-all results of the election after the totality of the votes of the
contending parties shall have been determined.”

Obviously, instead of ordering an outright recount of the ballots
of Precinct No. 7, the COMELEC would first give full faith and credit to the
questioned election returns thereof, which
it describes as the “Comelec Copy,” and, accordingly, direct the PBC
to include in the municipal certificate of canvass of Silvino Lobos the 61
votes for Ong and the uncertain votes for Lucero — 29, 30, or 31. The recount would only be made if after a
special election in Precinct No. 13 shall have been held, it shall be determined
that such a recount would be necessary.

We fail to grasp the logic of the proposition. First, it is clear to us that the COMELEC,
which has in its possession the so-called “Comelec Copy” of the
questioned election returns of Precinct No. 7 and heard the witnesses who
testified thereon, doubts the authenticity of the so-called “Comelec
Copy” of the election returns of Precinct No. 7;^[14]
hence, it authorizes the PBC to decide the issue of a recount “pursuant to
Section 236 of the Omnibus Election Code.” Since it doubts such
authenticity, it could not, without arbitrariness and abuse of discretion,
order the inclusion of the “votes” of Ong and Lucero found in the
doubtful “Comelec Copy” of the election returns in the municipal
certificate of canvass. Second, it is
an uncontroverted fact that an election was held in Precinct No. 7. None was held in Precinct No. 13 for reasons
the parties fully knew. Pursuant to
Section 6 of the Omnibus Election Code (B.P. Blg. 881), a special election may
be held in Precinct No. 13 only if the failure of the election therein
“would affect the result of the election.” This “result of the election” means the net result of
the election in the rest of the precincts in a given constituency, such that if
the margin of a leading candidate over that of his closest rival in the latter
precincts is less than the total number of votes in the precinct where there
was failure of election, then such failure would certainly affect “the
result of the election”; hence, a special election must be held. Consequently, the holding of a special
election in Precinct No. 13 can only be determined after the votes in Precinct
No. 7 shall have been included in the canvass by the Provincial Board of
Canvassers.

We may further state that the so-called “Comelec Copy”
of the election returns of Precinct No. 7 can by no means be validly included
in the municipal canvass. The summary
of the evidence in the
“preparation” of the election returns of Precinct No. 7, both in the
challenged Resolution and in the separate Concurring and Dissenting Opinion of
Commissioners Gorospe and Claravall, leaves no room for doubt that there was
actually no counting of the votes in Precinct No. 7. Quoted in the challenged Resolution is a
portion of the testimony of Sabina T. Jarito, Precinct Chairman of Precinct No.
7, which clearly shows that on questions by COMELEC Chairman Christian S.
Monsod and Commissioner Vicente B. de Lima, the witness candidly admitted that
the election returns were prepared at the “munisipyo” or
municipal building and not at the polling place of Precinct No. 7 in barangay
Camaya-an.^[15]
This “munisipyo” is located at the poblacion of Silvino
Lobos. Under the law, the board of
election inspectors shall prepare the election returns simultaneously with the
counting of votes in the polling place.^[16]
There is no evidence whatsoever that the COMELEC had, for valid reasons,
authorized the transfer of venue of the counting of the votes of Precinct No. 7
from the polling place in barangay Camaya-an to the municipal building and that
the counting did in fact take place at the latter. Although in the Concurring and Dissenting Opinion of
Commissioners Gorospe and Claravall there is a reference to Exhibit
“E,” the Joint Affidavit of Sabina Jarito and Mevilyn Surio wherein
they declare that after the voting the Board of Election Inspectors unanimously
approved to transfer the counting of votes to the Municipal Building in the
Poblacion of Silvino Lobos, which was allegedly concurred in by all the
watchers of political parties and the candidates present, the alleged
“counting” at the municipal building was denied by no less than the
Municipal Election Officer of Silvino Lobos, Antonio Tepace, and the Municipal
Treasurer thereof, Mr. Gabriel Basarte, in their affidavits marked as Exhibit
“F” and Exhibit “G,” respectively.^[17]

Since there was no counting of the votes of Precinct No. 7, no valid election returns could be
made and any copy of election returns purporting
to come therefrom is a fabrication. A recount thereof, which
presupposes a prior count, would obviously be unwarranted.

Only a count then of the votes of Precinct No. 13 would
heretofore be in order. Sections 234,
235, and 236 of the Omnibus Election Code are thus still inapplicable. And, in the light of what we stated before
in relation to the holding of a special election, such a count of the votes of
Precinct No. 7 must, perforce, precede the special election in Precinct No. 13.

II.

Ong’s first grievance in G.R. No. 113509 is without merit.

The order of the COMELEC for the correction of the manifest error
in the municipal certificate of canvass of Las Navas was made pursuant to the
declaration made by this Court in G.R. No. 105717 (Ong vs. COMELEC)^[18] that:

“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 Sec. 15 of R.A. No. 7166.”

Since no motion for reconsideration was filed in that case, the
decision therein became final and entry of judgment was made on 4 August
1993. Consequently, Ong cannot now
re-litigate the issue of the correction of the certificate of canvass of Las
Navas.

III.

On the authority of the COMELEC to order the holding of a special
election, Section 6 of the Omnibus Election Code provides:

“SEC. 6. Failure of election. — If, on
account of force majeure, violence, terrorism, fraud, or other analogous
causes the election in any polling place has not been held on the date fixed, or
had been suspended before the hour fixed by law for the closing of the voting,
or after the voting and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such election results in
a failure to elect, and if in any of such cases the failure or suspension of
election would affect the result of the election, the Commission shall, on the
basis of a verified petition by any interested party and after due notice and
hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than thirty
days after the cessation of the cause of such postponement or suspension of the
election or failure to elect.”

The first paragraph of Section 4 of R.A.
No. 7166 likewise provides:

“SEC. 4. Postponement,
Failure of Election and
Special Elections. — The
postponement, declaration of failure of election and the calling of special
elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code shall
be decided by the Commission sitting en banc by a majority votes
of its members. The causes for the
declaration of a failure of election my occur before or after the casting of
votes or on the day of the election.”

There are, therefore, two requisites for the holding of special
elections under Section 6 of the Omnibus Election Code, viz., (1) that
there is a failure of election, and (2) that such failure would affect the
results of the election. The parties
admit that the failure of the election in Precinct No. 13 was due to ballot-box
snatching and do not dispute the finding of the COMELEC as to the necessity and
inevitability of the holding of a special election in said precinct, even if
the result of Precinct No. 7 should be based on the questionable “Comelec
Copy” of its election returns. The
COMELEC held:

“Based on the adjudged correction of the votes in favor of
petitioner Lucero in the Municipality of Las Navas, the results of the recount
of votes (ballots) of Precinct No. 16 (Silvino
Lobos), and the votes reflected in the available copy of the
election returns for Precinct No. 7 (Silvino
Lobos), it is safe to predict that when the special
Provincial Board of Canvassers will reconvene to sum up the votes of the
contending parties, the original lead of private respondent Ong of two hundred
four (204) votes against petitioner Lucero — 24,272 as against 24,068
-­- will be reduced to either 175 or 173 depending on whether Lucero
will be credited a low of 29 or a high of 31 votes as reflected in the election
returns of Precinct No. 7.

Without preempting the exact figures which only the special
Provincial Board of Canvassers can correctly determine, undoubtedly it is
inevitable that a special election will have to be held in Precinct No. 13
(Barangay Gusaran) of the Municipality of Silvino Lobos.

. . .

Given the established lead of private respondent Ong over
petitioner Lucero, We answer in the affirmative. According to Comelec records, the number of registered voters in
Precinct No. 13 is two hundred
thirteen (213). Since the lead of respondent Ong is
less than the number of registered voters, the votes in that precinct could
affect the existing result because of the possibility that petitioner Lucero
might get a majority over Ong in that precinct and that majority might be more
than the present lead of Ong.”^[19]

On the basis of the additional votes credited so far to the
parties,^[20]
the following computation is in order: to Ong’s 24,272 votes will be added 2
more from Precinct No. 16, to make a total of 24,274, while to Lucero’s 24,068
votes will be added 20 more from Las Navas and 43 from Precinct No. 16, for a
total of 24,131. Ong’s earlier lead
will thus be reduced to 143, which is admittedly less than the 213 registered
voters in Precinct No. 13.^[21]

The two requirements then for a special election under Section 6
of the Omnibus Election Code have indeed been met.

In fixing the date of the special election, the COMELEC should
see to it that: (1) it should be not
later than thirty days after the cessation of the cause of the postponement or
suspension of the election or the failure to elect, and (2) it should be
reasonably close to the date of the election not held, suspended, or which
resulted in failure to elect. The first
involves questions of fact. The second
must be determined in the light of the peculiar circumstances of a case. In the instant case, the delay was not
attributable to the poor voters of Precinct No. 13 or to the rest of the
electorate of the Second Legislative District of Northern Samar. The delay was, as stated in the opening
paragraph of this ponencia, primarily caused by the legal skirmishes or
maneuvers of the petitioners which muddled simple issues. The Court takes judicial notice of the fact
that G.R. No. 113509 is the third case Ong has brought to this Court.^[22]
Considering then that the petitioners themselves must share the blame for the
delay, and taking into account the fact that since the term of office of the
contested position is only three years, the holding of a special election in
Precinct No. 13 within the next few months may still be considered
“reasonably close to the date of the election not held.” Ong’s
postulation should then be rejected.

In the course of the deliberations on these cases, the Court
considered the possible application, by analogy, of Section 10, Article VII of
the 1987 Constitution providing that no special election in the event of a vacancy
in the Offices of the President and Vice President “shall be called if the
vacancy occurs within eighteen months before the date of the next presidential
election,” and of the second paragraph of Section 4 of R.A. No. 7166 which
provides:

“In case a permanent vacancy shall occur in the Senate or
House of Representatives at least one (1) year before the expiration of the
term, the Commission shall call and hold a special election to fill the vacancy
not earlier than sixty (60) days nor longer than ninety (90) days after the
occurrence of the vacancy. However, in
case of such vacancy in the Senate, the special election shall be held
simultaneously with the next succeeding regular election.”

A view was expressed that we should not
hold the special election because the underlying philosophy for the prohibition
to hold the special election if the vacancy occurred within a certain period
before the next presidential election or the next regular election, as the case
may be, is obviously the avoidance of the expense to be incurred in the holding
of a special election when a regular election is, after all, less than a year
away. The Court ultimately resolved
that the aforesaid constitutional and statutory proscriptions are inapplicable
to special elections which may be called under Section 6 of the Omnibus
Election Code. First, the special
election in the former is to fill permanent vacancies in the Office of the
President, Vice President, and Members of Congress occurring after the
election, while the special election under the latter is due to or by reason of
a failure of election. Second, a
special election under Section 6 would entail minimal costs because it is
limited to only the precincts involved and to the candidates who, by the result
of the election in a particular constituency, would be affected by the failure
of election. On the other hand, the
special election for the Offices of the President, Vice President, and Senators
would be nation-wide, and that of a Representative, district-wide. Third, Section 6, when specifically applied
to the instant case, presupposes that no candidate had been proclaimed and
therefore the people of the Second Legislative District of Northern Samar would be unrepresented in the
House of Representatives until the special election shall ultimately determine
the winning candidate, such that if none is held, they would have no
representation until the end of the term. Under the aforesaid constitutional and statutory provisions, the elected
officials have already served their constituencies for more than one-half of
their terms of office. Fourth, if the
law had found it fit to provide a
specific and determinate
time-frame for the holding of a special election under
Section 6, then it could have easily done so in Section 4 of R.A. No. 7166.

Another serious obstacle to Ong’s proposition is that,
considering the COMELEC’s disposition of Precinct No. 7 in the challenged
Resolution, he would then be declared and proclaimed the duly elected
Representative of the Second Legislative District of Northern Samar despite the
fact that as earlier observed, there was no counting of the votes of Precinct
No. 7, and the results of the district elections for Representative would be
affected by the failure of the election in Precinct No. 13. To accept the proposition is to allow a
proclamation based on an incomplete canvass where the final result would have
been affected by the uncanvassed result of Precinct No. 7 and by the failure of
the election in Precinct No. 13 and to impose upon the people of the Second
Legislative District of Northern Samar a Representative whose mandate is, at
the very least, uncertain, and at the most, inexistent.

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered:

I.     DISMISSING,
for lack of merit, the petition in G.R. No. 113509; and

II.    In
G.R. No. 113107, DIRECTING the respondent Commission on Elections to:

(1)  Reconvene, in its main office in Manila,
within five (5) days from notice hereof, the Special Board of Canvassers of the
municipality of Silvino Lobos, Northern Samar, which shall then, as a special
Board of Election Inspectors of Precinct No. 7 of said municipality, within
forty-eight (48) hours from its reconvening, count the ballots of said Precinct
No. 7, and deliver to the special Provincial Board of Canvassers of the said
Province a copy of the election returns;

(2)  Reconvene, in its main office in Manila,
within the same period as aforestated, the special Provincial Board of
Canvassers of Northern Samar which shall then, within seventy-two (72) hours
from its reconvening:

(a)   Include in the Municipal Certificate of
Canvass of Silvino Lobos (1) the total number of votes for petitioner Wilmar P.
Lucero and for petitioner Jose L. Ong, Jr., respectively, in Precinct No. 7 of
Silvino Lobos as recorded in the election returns submitted by the
aforementioned special Municipal Board of Canvassers, and (2) the forty-three
(43) votes for petitioner Wilmar P. Lucero and the two (2) votes for petitioner
Jose L. Ong, Jr. as reflected in the election returns of Precinct No. 16
(Barangay Tubgon) prepared, after a recount of the ballots, by the special
Board of Canvassers; and after such inclusions to enter the new totals of the
votes for the petitioners in the Certificate of Provincial Canvass;

(b)   Retabulate the total number of votes for
Wilmar P. Lucero for the Municipality of Las Navas, Northern Samar, which shall
be two thousand and five hundred thirty-seven (2,537) as reflected in the Statement of Votes (C.E. Form 20-A) prepared and submitted by the Municipal Board of Canvassers of Las Navas, and to enter the same in
the Certificate of Provincial Canvass;

(c)   After the accomplishment of all the
foregoing, to sum up anew in the Certificate of Provincial Canvass the
canvassed municipal certificates of canvass of all the municipalities of the
Second Legislative District of Northern Samar and if the same would establish
that the difference in votes between petitioner Wilmar P. Lucero and petitioner
Jose L. Ong, Jr. is less than two hundred and thirteen (213), hence the failure
of the election in Precinct No. 13 would unavoidably and inevitably affect then
the result of the election, to report to the Commission on Elections such fact
and to furnish the latter with a certified photocopy of the Certificate of
Provincial Canvass;

(3) Within three (3) days after receipt of the
aforesaid report from the special Provincial Board of Canvassers, to CALL a
special election in Precinct No. 13 of Silvino Lobos, which shall be held not
later than thirty (30) days from such call; a copy of the election returns of
said special election shall forthwith be transmitted to the Special Provincial
Board of Canvassers of Northern Samar, which shall then enter the results
thereof in its canvass and make a final summation of the results in the
Certificate of Provincial Canvass, and thereafter, pursuant to the Omnibus
Election Code, pertinent election laws and rules and resolutions of the
Commission, proclaim the winning candidate for Representative of the Second
Legislative District of Northern Samar.

If for any reason whatsoever it would not be possible to
immediately reconvene the Special Municipal Board of Canvassers of Silvino
Lobos and the Special Provincial Board of Canvassers of Northern Samar, the
COMELEC may create new ones.

No pronouncements as to costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado,
Romero, Melo, Quiason, Puno, Vitug, Kapunan, and
Mendoza, JJ., concur.

Bellosillo, J., on leave.

^[1]
221 SCRA 475 [1993].

^[2]
Footnote no. 1, challenged COMELEC Resolution of 7 January 1994; Rollo,
G.R. No. 113107, 30.

^[3]
Rollo, G.R. No. 113107, 31.

^[4]
Rollo, G.R. No. 13107, 32-33.

^[5]
Id., 33.

^[6]
Rollo, G.R. No. 113107, 33.

^[7]
216 SCRA 806 [1992].

^[8]
Id. at 817.

^[9]
221 SCRA 475 [1993].

^[10]
Id. at 483-484.

^[11]
Id. at 483.

^[12]
Rollo, G.R. No. 113107, 35-36.

^[13]
Annex “A” of Petition, G.R. No. 113107;
Annex “A” of Petition, G.R. No. 113509. Per Commissioner
Regalado E. Maambong, with full concurrence of Chairman Christian S. Monsod, Commissioner
Vicente B. de Lima, and Commissioner Remedios A.S. Fernando. Commissioners
Graduacion A.R. Claravall and Manolo B. Gorospe concurred, except as to the
disposition on Precinct No. 7, which point they elaborated upon in a Concurring
and Dissenting Opinion (Rollo, G.R. No. 113107, 57-75). Commissioner Magdara B. Dimaampao put above his
signature the words “See Concurring/Dissenting Opinion.”

^[14]
It even explicitly stated that “[t]he authenticity of the votes indicated
in the election return, however, is placed in serious doubt because respondent
Ong presented before the Commission a certificate of votes dated May 12, 1992,
supposedly signed by Precinct Chairman Sabina T. Jarito and Precinct Third
Member Mevilyn A. Surio, wherein the votes for respondent Ong is only
forty-five (45) not 61, and the vote of petitioner Lucero is 30.” (Rollo,
G.R. No. 113107, 40-41).

^[15]
Pages 12-13 of challenged Resolution; Rollo, G.R. No. 113107, 42-43.

^[16]
Section 212, Omnibus Election Code.

^[17]
Rollo, G.R. No. 113107, 73-74.

^[18]
221 SCRA 475 [1993].

^[19]
Rollo, G.R. No. 113107, 47-48 (footnotes omitted).

^[20]
Pending the count to be made in Precinct No. 7.

^[21]
Unavailing is Ong’s assertion that the registered voters in Precinct No. 13
have been reduced from 213 to 185 as a result of the transfer and death of some
of the voters. The original and
exclusive jurisdiction over all matters of inclusion and exclusion of voters
from the voter’s list lies with the municipal and metropolitan trials court under
Section 138 of the Omnibus Election Code (as amended). Their decisions are
appealable to the proper regional trial court, whose decisions are immediately
final and executory.

^[22]
The other two are G.R. No. 105717 as earlier noted, and G.R. No. 108700 which
this Court dismissed on 9 November 1993.