Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 105717. December 23, 1992.

JOSE L. ONG, JR., petitioner,

vs.

COMMISSION ON ELECTIONS and WILMAR P. LUCERA, respondents.

Brillantes, Nachura, Navarro & Arcilla Law Office for petitioner.

SYLLABUS

1. CONSTITUTIONAL LAW; COMELEC; ELECTION CASES INVOLVING PRE-PROCLAMATION

CONTROVERSIES MUST FIRST BE HEARD AND DECIDED BY A DIVISION OF THE COMELEC, THE COMELEC
EN BANC HAVING NO AUTHORITY TO HEAR AND DECIDE THEM IN THE FIRST INSTANCE. — While we
agree with petitioner with regard to the COMELEC en banc's power to rule on the question of holding
special elections for precinct 13 as clearly provided by Section 4 of Republic Act No. 7166, we rule that
the COMELEC en banc gravely abused its jurisdiction when it ordered a recount in precincts 7 and 16
because these are matters which should have been first referred to its division, thus contravening
Section 3, subdivision c of Article IX of the 1987 Constitution which expressly provides: "Sec. 3. The
Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure
in order to expedite disposition of election cases, including pre-proclamation controversies. All such
election cases shall be heard and decided in a division, provided that motions for reconsideration of
decision shall be decided by the Commission en banc." By now it is well-settled that election cases which
include pre-proclamation controversies must first be heard and decided by a division of the Commission.
The Commission en banc does not have the authority to hear and decide it in the first instance.
2. COMELEC'S ORDER OF RECOUNT DID NOT FOLLOW THE PROCEDURE LAID DOWN IN SECS. 233,
234, 235, 236, AND 237 OF THE OMNIBUS ELECTION CODE; ORDER FOR A RECOUNT TO BE ISSUED ONLY
AS A LAST RESORT AND ONLY IF THE COMMISSION IS SATISFIED THAT THE IDENTITY AND INTEGRITY OF
THE BALLOTS HAVE NOT BEEN VIOLATED. — The facts leading to the issuance of the June 13, 1992
resolution did not follow the procedure laid down in the Omnibus Election Code. Considering that
private respondent alleged that the election returns of precinct 16 were missing, thus invoking Section
233 of the Omnibus Election Code (Batas Pambansa Blg. 881) as amended, the Board of Canvassers
should have first obtained "such missing election returns from the board of election inspectors
concerned, or if said returns have been lost or destroyed, the Board of Canvassers, upon prior authority
of the Commission, may use any of the authentic copies of said election returns or a certified copy of
said election returns issued by the Commission." With regard to the ambiguity of election returns from
precinct 7, the Board of Canvassers should have followed the procedure set forth in Section 234
(Material Defects in the Election Returns) of the Omnibus Election Code. The COMELEC indiscriminately
issued the order of recount even before the remedies under the law as stated in Sections 233 and 234 of
the Omnibus Election Code have been complied with. We agree with petitioner that Section 233 of the
Omnibus Election Code does not authorize a recount. Indeed, nowhere in Section 233 is there any
mention of a recount of ballots. Instead, the remedy under said Section is a referral to other authentic
copies of election returns issued by the Commission. It bears stressing that under Sections 234, 235 and
236 of the Omnibus Election Code, an order for a recount shall be issued only as a last resort and only if
the Commission is satisfied that the identity and integrity of the ballots have not been violated. So
restrictive is the authority to recount that under Section 237, once the integrity of ballots is violated, the
Commission shall not order a recount but shall seal and secure the ballot box.

3. ALLEGATIONS IN PRIVATE RESPONDENT'S PETITION FOR THE SUSPENSION OF THE

PROCLAMATION EVIDENTLY INVOLVED PRE-PROCLAMATION ISSUES; PRE-PROCLAMATION
CONTROVERSY DEFINED; ISSUES THAT MAY BE RAISED IN PRE-PROCLAMATION CONTROVERSY. —
Undoubtedly, the allegations of private respondent as contained in his petition for the suspension of the
proclamation of the winner of the second district of Northern Samar evidently involves pre-
proclamation issues, specifically on the preparation of election returns. Aside from his petition, private
respondent alleged violations of Sections 233 and 236 of the Omnibus Election Code as contained in his
urgent motion for clarification, which are indubitably pre-proclamation matters. Thus, the COMELEC en
banc, though it did not have the power to issue the order dated June 2, 1992, was correct in classifying
the issue at hand as a pre-proclamation controversy. As defined by Section 241 of the Omnibus Election
Code: "A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings
of the board of canvassers which may be raised by any candidate or any registered political party or
coalition of political parties before the board or directly with the Commission, or any matter raised
under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and
appreciation of the election returns." In addition, Section 243 states: "Issues that may be raised in pre-
proclamation controversy. The following shall be proper issues that may be issued in a pre-proclamation
controversy: (a) Illegal composition or proceedings of the board of canvassers; (b) The canvassed
election returns are incomplete, contain material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections
233, 234, and 236 of this Code.
4. COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT SUSPENDED THE PROCLAMATION OF THE
WINNER OF A CONGRESSIONAL ELECTION IN VIOLATION OF SEC. 15 OF R.A. NO. 7166. — Consequently,
since for purposes of elections, no pre-proclamation case is allowed against, among others, a candidate
of the House of Representatives as stated in Section 15 of Republic Act No. 7166, the COMELEC gravely
abused its discretion when it issued its June 2, 1992 order suspending the proclamation of the winner of
the congressional seat of the second district of Northern Samar and in ordering a recount of precincts 7
and 16 through a resolution dated June 13, 1992.

5. PRIVATE RESPONDENT'S RELIANCE ON LIM V. COMELEC MISPLACED; REASONS. — Private

respondent's reliance on the Lim v. COMELEC case, where we held that not all pre-proclamation issues
are barred by Section 15 of Republic Act No. 7166, must similarly fail because in that case, petitioner Lim
questioned the illegal composition of the Municipal Board of Canvassers and the irregular appointment
of the Board of Election Inspectors, a pre-proclamation ground which evidently has no connection with
the preparation, transmission, receipt, custody and appreciation of election returns. As such, we ruled
that the illegal composition of the Board of Canvassers under Section 243 of the Omnibus Election Code
may still be raised under Section 15 of Republic Act No. 7166, before either the Board of Canvassers or
the COMELEC, in accordance with Section 19 of Republic Act No. 7166.

6. WHEN A RECOUNT AND CANVASS OF ELECTION RETURNS PRIOR TO RECEIPT OF THE

TEMPORARY RESTRAINING ORDER BY THE COMELEC DOES NOT MAKE A PETITION MOOT AND
ACADEMIC; REASONS. — On the last issue, we opine that just because there has been a recount of
precinct 16 and a canvass of election returns from precinct 7 prior to receipt of the Temporary
Restraining Order by the COMELEC on June 25, 1992, it does not mean that this petition is already moot
and academic. Private respondent must realize that when petitioner filed his petition seeking to annul
the June 2, 1992 order and the June 13, 1992 resolution as having been issued with grave abuse of
discretion, petitioner's corresponding prayer for a temporary restraining order necessarily sought to
preserve the status quo between the parties before the issuance of the said questioned order and
resolution. Petitioner could not have sought the preservation of the status quo at the time the
Temporary Restraining Order was received by the COMELEC on June 25, 1992 for that would have
rendered nugatory petitioner's interest in reconvening the regular Provincial Board of Canvassers and
prevented a recount, thus skirting the procedure laid down in the Omnibus Election Code. The fact that
supervening events have transpired after the issuance of the June 2, 1992 order does not make such
order a fait accompli since the same constitutes a continuing prohibition on the regular Provincial Board
of Canvassers of Northern Samar from reconvening until further orders from the COMELEC. As such,
petitioner is justified in seeking a writ of preliminary injunction under Section 3, paragraph 1 of Rule 58
of the Rules of Court.

7. COMELEC ORDERED TO DESIST FROM IMPLEMENTING ITS ORDER OF JUNE 2, 1992 AND
RESOLUTION OF JUNE 13, 1992; ELECTION RETURNS FROM PRECINCT 16 BASED ON RECOUNTED
BALLOTS ARE DISCARDED; AUTHENTIC RETURNS FROM SAID PRECINCT TO BE MADE INSTEAD THE BASIS
FOR THE CANVASSING. — 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 for the canvassing.

DECISION

ROMERO, J p:

The instant petition seeks to annul and set aside as having been issued with grave abuse of discretion
the order issued by the Commission on Elections (COMELEC) en banc dated June 2, 1992 which directed
the Provincial Board of Canvassers of Northern Samar not to reconvene unless instructed by the
Commission, and its resolution dated June 13, 1992, insofar as it ordered a recount of ballots for
precincts 7 and 16 of the Municipality of Silvino Lobos in Northern Samar.

The material facts of this case are as follows:

Petitioner and private respondent were candidates for the congressional seat of the second district of
Northern Samar during the recently-concluded May 11, 1992 elections. Following the elections,
petitioner Ong garnered 24,272 votes while private respondent Lucero obtained 24,068 votes or a
difference of 204 votes as determined by the Provincial Board of Canvassers of Northern Samar.

On May 25, 1992, private respondent filed a petition with the COMELEC for the suspension of the
proclamation of petitioner and for a recount in precinct 13 since there was a failure of election
occasioned by the snatching of ballot boxes with prayer for the holding of special elections pursuant to
Section 6 of the Omnibus Election Code (Batas Pambansa Blg. 881) and for a recount of precincts 7 and
16 pursuant to Section 234 of said code as the election returns from said precincts were either missing
or not legible. Private respondent also sought the recount of 52 precincts in order to correct "manifest
errors" pursuant to Section 15 of Republic Act No. 7166 1 in view of the disqualification of Alice Lucero,
another candidate, thus leaving him as the only candidate with that surname. Private respondent
alleged that the said three (3) precincts had a total number of 433 registered votes, whose
determination would materially affect the result of the elections (SPA Case No. 92-282). 2 On June 2,
1992, a day before the reconvening of the Provincial Board of Canvassers, the COMELEC en banc
ordered the said board to stop the canvassing of votes, considering "the pendency of a pre-proclamation
controversy before the COMELEC." 3
On June 4, 1992, private respondent filed an urgent motion for clarification 4 on the use of the phrase
"pre-proclamation controversy" in its resolution dated June 2, 1992 considering that he alleged only
violations of Sections 6, 233 and 236 of the Omnibus Election Code and that under Section 15 of
Republic Act No. 7166, pre-proclamation cases are not allowed against candidates for the House of
Representatives. Subsequently, petitioner moved to lift the suspension order on June 8, 1992. 5

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; (b) granted Lucero's prayer for a
recounting of votes from precincts 7 and 16 of Silvino Lobos by ordering the Provincial Election
Supervisor of Northern Samar to produce the ballot boxes from said precincts before the COMELEC; (c)
deferred its resolution on the issue of special election for precinct 13 of Silvino Lobos until after the
results from precincts 7 and 16 shall have been determined and (d) denied Lucero's prayer for the
recount of votes cast in 52 precincts of Catubig, Las Navas, Pambuyan, San Roque and Laong. 6

On June 15, 1992, the private respondent filed with COMELEC an urgent motion to constitute a Special
Board of Election Inspectors. 7

Five days later, petitioner filed this instant petition for certiorari with a prayer for the issuance of a
temporary restraining order seeking to enjoin the COMELEC from enforcing its June 2 order and its June
13, 1992 resolution.

Pursuant to its questioned resolution dated June 13, 1992, the chairman and members of the COMELEC
convened en banc on June 22, 1992. On the same day, it constituted a Special Board of Election
Inspectors (BEI), a Special Municipal Board of Canvassers (MBC) for precinct 16 and a Special Provincial
Board of Canvassers for Northern Samar (PBC), through Resolution No. 92-1813. 8

On June 23, 1992, upon orders of the COMELEC the Special BEI recounted the votes from precinct 16 as
contained in an election returns showing the following results: Lucero — 43 and Ong — 2. On the same
day, the special MBC canvassed the said election return. 9

The following day, pursuant to the COMELEC's amended resolution No. 92-1815 dated June 23, 1992,
the special BEI likewise canvassed the COMELEC's copy of the election return from precinct 7 with Ong
winning 61 votes and Lucero gaining 29 votes. The canvass of the election return from precinct 7 was
made after the special MBC overruled private respondent's objection. 10 Thereafter, private respondent
filed a notice of appeal with the COMELEC. 11
On June 25, 1992, this Court acting on the instant petition filed five days earlier, resolved to grant
petitioner's prayer for a temporary restraining order and ordered the COMELEC to cease and desist from
implementing its questioned order dated June 2, 1992 and its resolution dated June 13, 1992 in SPA No.
92-282. 12

Immediately upon receipt of the temporary restraining order on June 25, 1992 at 4:50 p.m., the
COMELEC ceased to conduct any proceeding on SPA Case No. 92-282 advising through telegram, the
Provincial Election Supervisor, the Regional Election Inspector of Region VIII and the Provincial Board of
Canvassers of Northern Samar regarding the same.

Notwithstanding the issuance of a temporary restraining order, petitioner on July 6, 1992, filed with the
Special PBC for Northern Samar an urgent motion to proceed with the canvass and to proclaim the
winning candidate. 13 Thereafter on July 8, 1992, petitioner filed with the COMELEC en banc an
equitable petition to review and to annul/set aside the recount made on June 23, 1992 of precinct 16 of
the Municipality of Silvino Lobos, Northern Samar. 14

Hence, this petition for certiorari on the ground that the COMELEC en banc committed grave abuse of
discretion in issuing its order dated June 2, 1992 and its resolution dated June 13, 1992 which ordered
the chairman of the PBC of Northern Samar not to reconvene the board and granted a recount of the
ballots in precincts 7 and 16 of the Municipality of Silvino Lobos, Northern Samar.

Petitioner also disputes the validity of the questioned order and resolution as they were issued by the
COMELEC en banc, not by a division, thereby violating Section 3, subdivision c Article IX of the 1987
Constitution. For his part, private respondent in his memorandum, argues that the COMELEC en banc
had jurisdiction to issue the questioned order and resolution because one of his prayers was for the
calling of special elections in precinct 13 in the Municipality of Silvino Lobos. Private respondent
concludes that since at least one issue in SPA Case No. 92-282 falls within the jurisdiction of the
COMELEC en banc, it was properly heard and decided by it rather than by one of its divisions. 15

In defending the COMELEC's position, the Solicitor General contends that since this is a case of
incomplete canvass, the COMELEC in ordering a recount, is authorized to act upon the same to
determine the true will of the electorate. The Solicitor General also states that the COMELEC erred in
using the phrase "considering the pendency of pre-proclamation controversy" as contained in its order
dated June 2, 1992; that such usage of the phrase was "caused by COMELEC'S excusable negligence
having in mind the numerous election-related cases pending before it, brought about by the
synchronized national and local elections." 16
The Solicitor General likewise argues that this petition deserves to be dismissed for being moot and
academic because the June 13, 1992 resolution which granted private respondent's prayer for a recount
in precincts 7 and 16 had already been implemented before the Temporary Restraining Order was
served on the COMELEC. It is to be noted that the recounting of ballots from precinct 16 by the special
BEI and the canvassing of election returns made by the special MBC were consummated on June 23,
1992. On the other hand, the canvassing of the election returns from precinct 7 was made on June 24,
1992 or one day before the COMELEC received the Temporary Restraining Order issued by this Court on
June 25, 1992 at 4:50 p.m. 17

We grant the writ of certiorari and issue the writ of preliminary injunction against the COMELEC en
banc.

We shall resolve the issues raised by petitioner and private respondent jointly as they are all
interrelated.

While we agree with petitioner with regard to the COMELEC en banc's power to rule on the question of
holding special elections for precinct 13 as clearly provided by Section 4 of Republic Act No. 7166, 18 we
rule that the COMELEC en banc gravely abused its jurisdiction when it ordered a recount in precincts 7
and 16 because these are matters which should have been first referred to its division, thus
contravening Section 3, subdivision c of Article IX of the 1987 Constitution which expressly provides:

"SECTION 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate
its rules of procedure in order to expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided in a division, provided that motions for
reconsideration of decision shall be decided by the Commission en banc." (Emphasis supplied)

By now it is well-settled that election cases which include pre-proclamation controversies must first be
heard and decided by a division of the Commission. The Commission en banc does not have the
authority to hear and decide it in the first instance. 19

To be sure, the order dated June 22, 1992 was issued after the testimony of the election registrar of
Severino Lobos was heard, but that is not the main point. The facts leading to the issuance of the June
13, 1992 resolution did not follow the procedure laid down in the Omnibus Election Code. Considering
that private respondent alleged that the election returns of precinct 16 were missing, thus invoking
Section 233 of the Omnibus Election Code (Batas Pambansa Blg. 881) as amended, the Board of
Canvassers should have first obtained "such missing election returns from the board of election
inspectors concerned, or if said returns have been lost or destroyed, the Board of Canvassers, upon prior
authority of the Commission, may use any of the authentic copies of said election returns or a certified
copy of said election returns issued by the Commission." With regard to the ambiguity of election
returns from precinct 7, the Board of Canvassers should have followed the procedure set forth in
Section 234 (Material Defects in the Election Returns) of the Omnibus Election Code.

The COMELEC indiscriminately issued the order of recount even before the remedies under the law as
stated in Sections 233 and 234 of the Omnibus Election Code have been complied with. We agree with
petitioner that Section 233 of the Omnibus Election Code does not authorize a recount. Indeed,
nowhere in Section 233 is there any mention of a recount of ballots. Instead, the remedy under said
Section is a referral to other authentic copies of election returns issued by the Commission.

It bears stressing that under Sections 234, 235 and 236 of the Omnibus Election Code, an order for a
recount shall be issued only as a last resort and only if the Commission is satisfied that the identity and
integrity of the ballots have not been violated. So restrictive is the authority to recount that under
Section 237, once the integrity of ballots is violated, the Commission shall not order a recount but shall
seal and secure the ballot box.

Had the members of the Board of Canvassers been more meticulous in their duties, they would have
examined and referred to other copies of the election returns prior to issuing an order of recount.
Unlike in precinct 16 where the COMELEC erroneously ordered a recount, the COMELEC upon discovery
that it had in its possession a copy of the election returns of precinct 7, issued Resolution 92-1815 dated
June 23, 1992 which correctly directed the special MBC of Silvino Lobos to canvass instead the
COMELEC's copy of election returns — an authentic copy of the election returns of said precinct.

Undoubtedly, the allegations of private respondent as contained in his petition for the suspension of the
proclamation of the winner of the second district of Northern Samar evidently involves pre-
proclamation issues, specifically on the preparation of election returns. Aside from his petition, private
respondent alleged violations of Sections 233 and 236 of the Omnibus Election Code as contained in his
urgent motion for clarification, 20 which are indubitably pre-proclamation matters. Thus, the COMELEC
en banc, though it did not have the power to issue the order dated June 2, 1992, was correct in
classifying the issue at hand as a pre-proclamation controversy.

As defined by Section 241 of the Omnibus Election Code:

"A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the
board of canvassers which may be raised by any candidate or any registered political party or coalition
of political parties before the board or directly with the Commission, or any matter raised under
Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and
appreciation of the election returns." (Emphasis supplied)
In addition, Section 243 states: "Issues that may be raised in pre-proclamation controversy. The
following shall be proper issues that may be issued in a pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered
with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as
mentioned in Sections 233, 234, and 236 of this Code; (Emphasis supplied)

xxx xxx xxx

Consequently, since for purposes of elections, no pre-proclamation case is allowed against, among
others, a candidate of the House of Representative as stated in Section 15 of Republic Act No. 7166, 21
the COMELEC gravely abused its discretion when it issued its June 2, 1992 order suspending the
proclamation of the winner of the congressional seat of the second district of Northern Samar and in
ordering a recount of precincts 7 and 16 through a resolution dated June 13, 1992.

Private respondent's reliance on the Lim v. COMELEC 22 case, where we held that not all pre-
proclamation issues are barred by Section 15 of Republic Act No. 7166, must similarly fail because in
that case, petitioner Lim questioned the illegal composition of the Municipal Board of Canvassers and
the irregular appointment of the Board of Election Inspectors, a pre-proclamation ground which
evidently has no connection with the preparation, transmission, receipt, custody and appreciation of
election returns. As such, we ruled that the illegal composition of the Board of Canvassers under Section
243 of the Omnibus Election Code may still be raised under Section 15 of Republic Act No. 7166, before
either the Board of Canvassers or the COMELEC, in accordance with Section 19 of Republic Act No. 7166.

Lastly, private respondent insists that, notwithstanding the fact that Section 15 of Republic Act No. 7166
prohibits the filing of pre-proclamation case against a candidate of the House of Representatives,
nonetheless, the same Section allows the correction of "manifest errors" in the certificate of canvass or
election returns. In the instant case, he points out that a recount should be allowed in 52 precincts for
the non-crediting of "Lucero" as a result of the disqualification of Alice Lucero from the congressional
race. 23
Such contention again hardly deserves serious consideration for this has already been passed upon by
the COMELEC when it held that the act of the Board of Inspectors in declaring some votes as stray
involves the appreciation of ballots which is a proper subject for an election protest. 24

On the last issue, we opine that just because there has been a recount of precinct 16 and a canvass of
election returns from precinct 7 prior to receipt of the Temporary Restraining Order by the COMELEC on
June 25, 1992, it does not mean that this petition is already moot and academic. Private respondent
must realize that when petitioner filed his petition seeking to annul the June 2, 1992 order and the June
13, 1992 resolution as having been issued with grave abuse of discretion, petitioner's corresponding
prayer for a temporary restraining order necessarily sought to preserve the status quo between the
parties before the issuance of the said questioned order and resolution. Petitioner could not have
sought the preservation of the status quo at the time the Temporary Restraining Order was received by
the COMELEC on June 25, 1992 for that would have rendered nugatory petitioner's interest in
reconvening the regular Provincial Board of Canvassers and prevented a recount, thus skirting the
procedure laid down in the Omnibus Election Code.

As with a preliminary injunction, a Temporary Restraining Order seeks to preserve the status quo until
the merits of the case can be heard. To be precise, a restraining order is an order to maintain the subject
of controversy in status quo until the hearing of an application for a temporary injunction can be held. It
seeks to suspend proceedings until there can be an opportunity to inquire into the feasibility of issuing
an injunction. 25 Status quo is defined as the last actual peaceable uncontested status which preceded
the pending case. 26 In the case at bar, had COMELEC not issued its erroneous order of June 2, 1992 and
its resolution dated June 13, 1992, this petition would not have been filed.

The fact that supervening events have transpired after the issuance of the June 2, 1992 order does not
make such order a fait accompli since the same constitutes a continuing prohibition on the regular
Provincial Board of Canvassers of Northern Samar from reconvening until further orders from the
COMELEC. As such, petitioner is justified in seeking a writ of preliminary injunction under Section 3,
paragraph 1 of Rule 58 of the Rules of Court.

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 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.

SO ORDERED.

Narvasa, C .J ., Gutierrez, Jr., Cruz, Bidin, Griño-Aquino, Nocon, Bellosillo, Melo and Campos, Jr., JJ .,
concur.

Padilla, Regalado and Davide, Jr., JJ ., concur in the result.

Separate Opinions

FELICIANO, J ., concurring and dissenting:

I concur in the result reached by my distinguished colleague Mme. Justice Romero, and rest this
concurrence on the ground, explicitly relied upon by her, that the questions dealt with by public
respondent Commission on Election in its Order of 2 June 1992 and its Resolution dated 13 June 1992
are pre-proclamation controversies which controversies were, however, disallowed in respect of the 11
May 1992 elections for, inter alia, members of the House of Representatives by Section 15 of R.A. No.
7166. At the same time, I respectfully dissent from the opinion of the majority to the extent that such
opinion rests upon the majority resolution in Sarmiento v. Comelec, G.R. No. 105628 and other
companion cases all promulgated on 6 August 1992, upon the grounds elaborated in my dissenting
opinion in Sarmiento and related cases. It appears to me that there is no real need to rely upon the
Sarmiento case considering that the other ground relied upon by Romero, J ., is quite adequate to
sustain the conclusion arrived at.

Footnotes

1. Entitled "The Synchronized Election and Electoral Reforms Law of 1991."

2. Annex C, pp. 33-44.

3. Annex A, Rollo, pp. 23-24.

4. Rollo, pp. 44-46.

5. Annex E, Rollo, pp. 47-50.

6. Annex B, Rollo, pp. 25-31.

7. Annex G, Rollo, p. 64.

8. Annex 2, Rollo, p. 113.

9. Rollo, p. 181.

10. Rollo, pp. 129-131.

11. Annex 5, Rollo, p. 125-131.

12. Rollo, p. 76.

13. Annex 2, Rollo p. 230.

14. Annex 12, pp. 175-195.

15. Memorandum of private respondent, pp. 11-12.

16. Rollo, p. 251.

17. Rollo, p. 257.

18. Said Section provides: 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 an 7 of the Omnibus Election Code shall be decided by the Commission sitting en banc by a
majority vote of its members. The causes for the declaration of a failure of election may occur before or
after the casting of votes or on the day of the election.

xxx xxx xxx

19. Pascua v. COMELEC, G.R. No. 105913, November 16, 1992, En Banc Resolution; Sarmiento v.
COMELEC, G. R. No. 105628, August 6, 1992; Typoco v. COMELEC, G.R. No. 105730, August 6, 1992;
Genova Jr. v. COMELEC G.R. No. 105771, August 6, 1992; Manliclic v. COMELEC, G.R. No. 105778, August
6, 1992; Rabat v. COMELEC G.R. No. 105797 August 6, 1992, Sinsuat v. COMELEC, G.R. No. 105919,
August 6, 1992.

20. Rollo, pp. 44-46.

21. Section 15 of Republic Act No. 7166 provides: "Pre-proclamation Cases Not allowed in Elections
for President, Vice President, Senator, and Members of the House of Representatives. — For purposes
of the elections for President, Vice-President, Senator and Member of House of Representatives, no pre-
proclamation cases shall be allowed on matters relating to the preparation, transmission, receipt,
custody, and appreciation of the election returns or the certificates of canvass, as the case may be.
However, this does not preclude the authority of the appropriate canvassing body motu proprio or upon
written complaint of an interested person to correct manifest errors in the certificate of canvass or
election returns before it.". . .

22. En Banc, G.R. No. 105591, October 1, 1992.

23. Memorandum of private respondent, p. 9; Annex C, p. 41.

24. Rollo, p. 31.

25. Francisco, Rules of Court, Volume IV-A, p. 185.

26. Philippine Virginia Tobacco Corp. v. de los Angeles, G.R. No. L-27829, August 19, 1988, 164 SCRA
543; Bataclan v. CA G.R. No. 78148, July 31, 1989, 175 SCRA 764.