WILMAR P. LUCERO, Petitioner, v. COMMISSIONER OF ELECTIONS and JOSE L.

ONG, JR., Respondents. July 20, 1994

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 Samara. 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 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 questioned the authority of the COMELEC to order the correction and to call for
a special election almost two (2) years after the regular election.
Issue:

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.

Ruling:
No, 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 is 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. Hence, the first paragraph of Section 4 of R.A. No. 7166 likewise provides:
"SECTION 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 may 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, to
wit;

i.that there is a failure of election, and

ii.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.