Lucero vs. COMELEC

Where no counting of votes occurred, no valid election returns exist and only an original count of the ballots — not a recount — is in order, which must precede determination of whether failure of election in another precinct affects the result so as to warrant a special election. A special election remains authorized although called nearly two years after the regular election where delay was caused by the parties' own legal maneuvers and no candidate had yet been proclaimed.

Wilmar P. Lucero and Jose L. Ong, Jr. were two of five candidates for Representative of the Second Legislative District of Northern Samar in the synchronized national and local elections of 11 May 1992. Resolution of their contest was governed by the Omnibus Election Code on failure of election, counting and preparation of returns at the polling place, and recounts, and by Republic Act No. 7166 on correction of manifest errors and on Commission on Elections action sitting en banc.

Wilmar P. Lucero and Jose L. Ong, Jr. were among five candidates for Representative of the Second Legislative District of Northern Samar in the synchronized elections held on 11 May 1992. The Provincial Board of Canvassers credited Ong with 24,272 votes and Lucero with 24,068 votes, a lead of 204 votes for Ong. That tally excluded Precinct No. 7 of Silvino Lobos where submitted returns were illegible and not canvassed, Precinct No. 13 of Silvino Lobos where ballot boxes were snatched and no election was held, and Precinct No. 16 of Silvino Lobos where all copies of returns were missing.

On 22 May 1992 Lucero filed SPA No. 92-282 before the Commission on Elections seeking suspension of Ong's proclamation, correction of the Las Navas certificate of canvass to raise his total from 24,068 to 24,088, a special election in Precinct No. 13 pursuant to Section 6 of the Omnibus Election Code, recounts in Precincts Nos. 7 and 16 pursuant to Section 234, and recount in 52 other precincts for manifest errors pursuant to Section 15 of Republic Act No. 7166 with impounding of ballot boxes. On 2 June 1992 the Commission directed the Provincial Board of Canvassers to desist from reconvening, and on 13 June 1992 ordered production of ballot boxes from Precincts Nos. 7 and 16 and appearance of election officials, with four Commissioners additionally directing retabulation of Las Navas to credit Lucero with 2,537 votes based on the election registrar's testimony. Despite Ong's certiorari petition in G.R. No. 105717 challenging the recount order, a special Board of Election Inspectors recounted Precinct No. 16 and recorded 43 votes for Lucero and 2 for Ong. On 25 June 1992 a temporary restraining order was issued against the 2 June order and 13 June resolution, followed by a 23 December 1992 decision nullifying them and discarding the Precinct No. 16 recount, as modified on 22 April 1993 to annul them only insofar as they affected Precinct No. 7, the 52 other precincts and Las Navas correction, but affirming authority for a special election in Precinct No. 13 and recount in Precinct No. 16 and declaring the Las Navas correction allowed.

Conformably therewith SPA No. 92-282 was heard by the First Division and, for lack of concurrence, elevated to the Commission en banc, which on 7 January 1994 directed the special Provincial Board of Canvassers to include (a) 43 votes for Lucero and 2 for Ong from Precinct No. 16 as recounted, (b) 61 votes for Ong and 29, 30 or 31 votes for Lucero from the Precinct No. 7 returns described as the COMELEC copy, (c) the corrected 2,537 votes for Lucero in Las Navas, and to submit a computation without proclaiming a winner; to call a special election in Precinct No. 13 if justified; and after tabulating that special election to decide the Precinct No. 7 recount under Section 236 if the discrepancy would affect the overall result. According to the testimony of Precinct No. 7 Chairman Sabina T. Jarito, the returns were prepared at the munisipyo or municipal building at the poblacion rather than at the polling place in Barangay Camaya-an, with no showing of authorized transfer of venue, a claim of counting there denied by the Municipal Election Officer and Municipal Treasurer.

• Precinct No. 7 Count: Petitioner Lucero maintained that the count of ballots in Precinct No. 7 must be unconditional because the election returns therefrom are invalid.
• Prejudice from Sequencing: Petitioner Lucero argued that his chances in the special election in Precinct No. 13 would be spoiled if the returns for Precinct No. 7 were to be included beforehand in the canvass.
• Correction of Las Navas Canvass: Petitioner Ong questioned the authority of the COMELEC to order correction of the alleged manifest error in the Municipal Certificate of Canvass of Las Navas despite the absence of any appeal.
• Timeliness of Special Election: Petitioner Ong argued that the COMELEC lacked authority to call for a special election in Precinct No. 13 almost two years after the regular election.

• Sequence of Count and Special Election: 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.
• Correction of Manifest Error: 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.
• Delayed Special Election: Whether the COMELEC acted with grave abuse of discretion in calling for a special election in Precinct No. 13 after almost two years, or more specifically after one year and ten months, following the day of the synchronized elections.

• Sequence of Count and Special Election: Yes. An original count of Precinct No. 7 ballots must precede determination of special-election necessity, no valid returns existing where no counting occurred.
• Correction of Manifest Error: No. Correction was proper, having been finally adjudged allowed under Section 15 of R.A. No. 7166 and thus barred from relitigation.
• Delayed Special Election: No. The two requisites under Section 6 were met and delay caused by the parties' maneuvers did not defeat authority to call the election reasonably close to the date not held.

• Sequence of Count and Special Election: Ordering inclusion of 61 votes for Ong and uncertain 29, 30 or 31 votes for Lucero from the doubtful COMELEC copy, with recount only if later deemed necessary, was arbitrary where the Commission itself doubted authenticity and authorized resort to Section 236. Since an election was held in Precinct No. 7 but none in Precinct No. 13, a special election in the latter under Section 6 requires that failure would affect the result, meaning the margin in the rest of the precincts is less than votes in the failed precinct; that net result cannot be known until Precinct No. 7 votes are canvassed. Moreover, the evidence left no doubt there was actually no counting in Precinct No. 7, the returns having been prepared at the munisipyo and not simultaneously with counting at the polling place as Section 212 requires, without proof of authorized transfer, so any purported returns were fabrication and Sections 234, 235 and 236 on recount, presupposing a prior count, were inapplicable.
• Correction of Manifest Error: The order implemented the declaration in G.R. No. 105717 that correction of the Las Navas certificate is in order as a manifest error allowed under Section 15 of R.A. No. 7166 even though a pre-proclamation issue is involved. No motion for reconsideration having been filed, that decision became final with entry of judgment on 4 August 1993, precluding relitigation of the same issue.
• Delayed Special Election: Section 6 requires (1) failure of election and (2) that failure would affect results, both admittedly present through ballot-box snatching in Precinct No. 13 and a margin concededly smaller than its 213 registered voters, computed as reduced to 143 after adding Precinct No. 16 and Las Navas adjustments, or 173 to 175 on the Commission's figures. As to timing, the election must be on a date reasonably close to that not held and not later than thirty days after cessation of the cause, with the first turning on fact and the second on peculiar circumstances; delay here was primarily caused by petitioners' legal skirmishes, not voters, and with a three-year term a special election within months remained reasonably close. Constitutional and statutory bars on special elections for vacancies within eighteen months or one year before term expiration were inapplicable, involving post-election permanent vacancies with broader cost and existing representation, unlike a Section 6 failure where no one was proclaimed and the district remained unrepresented.

• Failure of election; requisites for special election — There are two requisites for holding special elections under Section 6 of the Omnibus Election Code: (1) that there is a failure of election, and (2) that such failure would affect the results of the election. Applied here, ballot-box snatching causing no election in Precinct No. 13 and a vote margin smaller than its registered voters satisfied both, making a special election inevitable once the true canvassed totals were determined.
• Determination of effect on result — The result of the election means the net result in the rest of the precincts, such that if the leading candidate's margin over his closest rival is less than total votes in the precinct where election failed, the failure would affect the result. Applied here, the necessity of a special election in Precinct No. 13 could only be determined after inclusion of Precinct No. 7 votes in the canvass.
• Validity of election returns; counting at polling place — The board of election inspectors shall prepare election returns simultaneously with counting of votes in the polling place, and where no counting occurred no valid returns could be made so any purported copy is fabrication. Applied here, preparation of Precinct No. 7 returns at the municipal building without authorized transfer rendered the COMELEC copy invalid and required an original count rather than a recount under Sections 234, 235 and 236.
• Correction of manifest errors — Correction of a manifest error in a certificate of canvass is allowed under Section 15 of R.A. No. 7166 even though a pre-proclamation issue is involved. Applied here, correction of the Las Navas total to 2,537 votes for Lucero as reflected in the Statement of Votes was sustained and, having become final, could no longer be relitigated.
• Timing of Section 6 special election — A Section 6 special election must be held on a date reasonably close to the election not held but not later than thirty days after cessation of the cause of postponement, suspension or failure to elect, assessed in light of peculiar circumstances including party-caused delay. Applied here, calling the election nearly two years later was sustained where petitioners shared blame, the term was three years, and the district had been deprived of representation for more than two years.

• "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." — States the controlling rule sustaining the Las Navas correction and barring its relitigation after finality.
• "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." — Articulates the ratio requiring an original count rather than inclusion of or recount based on the questioned returns.
• "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." — Defines the canonical two-part test applied to justify the Precinct No. 13 special election.
• "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." — Explains rejection of immediate proclamation for Ong based on incomplete canvass.

• Jose L. Ong, Jr. vs. Commission on Elections and Wilmar P. Lucero, 216 SCRA 806 [1992] as modified in 221 SCRA 475 [1993] — Prior sequel decision in G.R. No. 105717 followed as res judicata on affirmance of special election in Precinct No. 13, recount in Precinct No. 16, and allowability of Las Navas correction; its modified disposition directed assignment to a Division and purposeful dispatch to proclaim the winner.

• Section 6, Omnibus Election Code (B.P. Blg. 881) — Governs failure of election due to force majeure, violence, terrorism, fraud or analogous causes and authorizes the Commission, on verified petition after notice and hearing, to call a special election reasonably close to but not later than thirty days after cessation of the cause if failure would affect the result; applied to require a special election in Precinct No. 13.
• Section 15, R.A. No. 7166 — Allows correction of manifest errors in certificates of canvass even if pre-proclamation issues are involved; applied to sustain retabulation of Las Navas to 2,537 votes for Lucero.
• Section 4, first paragraph, R.A. No. 7166 — Requires postponement, failure of election and special elections under Sections 5, 6 and 7 of the Omnibus Election Code to be decided by the Commission sitting en banc by majority vote; cited as framework for Commission authority.
• Section 212, Omnibus Election Code — Requires the board of election inspectors to prepare election returns simultaneously with counting of votes in the polling place; applied to invalidate Precinct No. 7 returns prepared at the municipal building.
• Sections 234, 235 and 236, Omnibus Election Code — Govern recounts presupposing a prior count; held inapplicable to Precinct No. 7 where no counting occurred, with Section 236 reserved only for genuine discrepancies after a valid count.
• Section 10, Article VII, 1987 Constitution; Section 4, second paragraph, R.A. No. 7166 — Bar or limit special elections to fill permanent vacancies occurring within eighteen months before the next presidential election or less than one year before expiration of term; considered by analogy but held inapplicable to Section 6 failure-of-election special elections limited to affected precincts where no proclamation occurred.

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