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Lucero v. COMELECG.R. No. 113107 | 20 Jul 1994Davide, Jr., J.

Petitioner:Wilmar Lucero (Lucero), Jose Ong, Jr. (Ong)Respondent:COMELEC

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

Related Provision/s:

Omnibus Election Code, Section 6. Requirements for holding aspecial election

1935 Constitution, Article VI, Section 9. In case of vacancy in the

Senate or in the House of Representatives, a special election may becalled 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 204votes in the 1992 elections for the

position of district representative of the 2nd legislative district ofNorthern Samar

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

" Precinct No. 7 Illegible

" Precinct No. 13 Snatchedballots; no election held" Precinct No. 16 Missingelection returns

" In light of this failure, Lucero moved for the COMELEC to suspendthe proclamation of Ong and to hold a special election for PrecinctNo. 13

" Acting on Luceros urgent manifestation, COMELEC directed PBCto desist from reconvening until further orders

" Ong moved to lift the suspension in which Lucero opposed

" COMELEC en banc issued a resolution ordering the ProvincialElection Supervision (PES) of Northern Samar to bring the ballot

boxes from Precinct 7 and 16 to the Commission wherein the keysthereof shall be turned over to the PES who shall in turn give thekeys for each ballot boxes to the duly authorized representatives ofLucero and Ong

" The Court issued a TRO against the implementation of the above-

mentioned resolution and eventually ordered the COMELEC tocease and desist from implementing the same

" Acting on motions for reconsideration and clarification respectivelyfiled by COMELEC and Lucero, the Court modified its decision andinstead ordered to re-ra#e the case to COMELEC

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

" Both Lucero and Ong contested the said resolution

" Lucero the count of ballots in Precinct 7 must beunconditionalbecause the election returns therefrom are invalid

" Ong COMELEC has no authority to order the correction andto call for a special election almost two (2) years after the regularelection

" Hence, this petition

Issue/s:W/N the count of Precinct 7 must come beforethe holding specialelection in Precinct 13W/N a special election could be held 1 year and 10 months afterthe regular election

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Held:! Yes. The count of Precinct 7 must be determined before holding a

special election in Precinct 13.

! Requirement for holding a special election

! Failure of election

! E$ect of failure of election in the results of the election! It must therefore be necessary to know the total number of

votes and the di$erence before it could be determined if aspecial election is necessary

! If after including the count of Precinct 7, the di$erence in thevotes are less than 213, which is the total number of votersin Precinct 13, then a special election is deemed to benecessary because its failure then would have an e$ect inthe 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 10months 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 thepostponement or suspension of the election or the failure toelect

! 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 andmaneuvers of the petitioners, therefore the holding of thespecial 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 theOmnibus Election Code

Ruling:Ongs petition denied.Luceros petition granted ordering the COMELEC to count thevotes 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 iffound necessary after the completion of the preceding orders