Lucero V Comelec Digest 6oq37

Lucero v. COMELEC

G.R. No. 113107 | 20 Jul 1994

Davide, Jr., J. Petitioner: Wilmar Lucero (Lucero), Jose Ong, Jr. (Ong)

Respondent: COMELEC

Consolidated petition for certiorari seeking to annul the 7 Jan 1994 resolution of COMELEC

Related Provision/s:

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Omnibus Election Code, Section 6. Requirements for holding a special election 1935 Constitution, Article VI, Section 9. In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term

Facts:

• Lucero lost to Ong by 204 votes in the 1992 elections for the position of district representative of the 2nd legislative district of Northern Samar

• The tally, however, did not include the results of the following:

• Precinct No. 7 — Illegible

• Precinct No. 13 — Snatched ballots; no election held

• Precinct No. 16 — Missing election returns

• In light of this failure, Lucero moved for the COMELEC to suspend the proclamation of Ong and to hold a special election for Precinct No. 13

• Acting on Lucero’s urgent manifestation, COMELEC directed PBC to desist from reconvening until further orders

• Ong moved to lift the suspension in which Lucero opposed

• COMELEC en banc issued a resolution ordering the Provincial Election Supervision (PES) of Northern Samar to bring the ballot

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boxes from Precinct 7 and 16 to the Commission wherein the keys thereof shall be turned over to the PES who shall in turn give the keys for each ballot boxes to the duly authorized representatives of Lucero and Ong

The Court issued a TRO against the implementation of the abovementioned resolution and eventually ordered the COMELEC to cease and desist from implementing the same

Acting on motions for reconsideration and clarification respectively filed by COMELEC and Lucero, the Court modified its decision and instead ordered to re-raffle the case to COMELEC

In 1994, COMELEC en banc issued the assailed resolution ordering a re-tabulation of the votes including the results of Precinct 16 and the ‘COMELEC-copy’ of the results for Precinct 7, a special election for Precinct 13, and a recount of Precinct 7 conditioned upon the results of Precinct 13

Both Lucero and Ong contested the said resolution

• Lucero — the count of ballots in Precinct 7 must be unconditional because the election returns therefrom are invalid

• Ong — COMELEC has no authority to order the correction and to call for a special election almost two (2) years after the regular election

Hence, this petition

Issue/s:

W/N the count of Precinct 7 must come before the holding special election in Precinct 13

W/N a special election could be held 1 year and 10 months after the regular election

Held:

• Yes. The count of Precinct 7 must be determined before holding a

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special election in Precinct 13.

• Requirement for holding a special election

• Failure of election

• Effect of failure of election in the results of the election

• It must therefore be necessary to know the total number of votes and the difference before it could be determined if a special election is necessary

• If after including the count of Precinct 7, the difference in the votes are less than 213, which is the total number of voters in Precinct 13, then a special election is deemed to be necessary because its failure then would have an effect in the results of the election

• The ‘COMELEC copy’, which the authenticity is doubted, cannot be used, therefore, a count is in order to determine the real results in Precinct 7

Yes. A special election could still be held even after 1 year and 10 months after the regular election.

• Requirements in fixing the date of the special election

• Not later than 30 days after the cessation of the cause of the postponement or suspension of the election or the failure to elect

• Reasonably close to the date of the election held, suspended, or which resulted in failure to elect

• The delay was primarily caused by the legal skirmishes and maneuvers of the petitioners, therefore the holding of the special election after almost two years may still be deemed to be reasonably close to the date of the election not held

• Constitutional and statutory proscription are inapplicable to special elections which may be called under Section 6 of the Omnibus Election Code

Ruling:

Ong’s petition denied.

Lucero’s petition granted — ordering the COMELEC to count the votes in Precinct 7, correct and add the votes in Precinct 13, and

hold a special election in Precinct 13 in not later than 30 days if found necessary after the completion of the preceding orders