G.R. No. 105717 . December 23, 1992.
JOSE L. ONG, JR., petitioner, vs. COMMISSION ON ELECTIONS and WILMAR P. LUCERA, respondents.

FACTS

Petitioner Jose L. Ong, Jr. and private respondent Wilmar P. Lucera were candidates for the congressional seat of the second district of Northern Samar in the May 11, 1992 elections. The Provincial Board of Canvassers determined that Ong garnered 24,272 votes against Lucera’s 24,068, a difference of 204 votes. On May 25, 1992, Lucera filed a petition with the COMELEC (SPA Case No. 92-282) seeking: (1) suspension of Ong’s proclamation; (2) a recount in Precinct 13 due to alleged failure of election from snatching of ballot boxes, with a prayer for special elections; (3) a recount of Precincts 7 and 16 because their election returns were either missing or not legible; and (4) a recount of 52 precincts to correct “manifest errors” due to the disqualification of another candidate. On June 2, 1992, the COMELEC en banc ordered the Provincial Board of Canvassers to stop the canvass, citing a pending pre-proclamation controversy. On June 13, 1992, the COMELEC en banc issued a resolution ordering, among other things, a recount of the ballots from Precincts 7 and 16. Ong filed the instant petition seeking to annul the June 2, 1992 order and the June 13, 1992 resolution (insofar as it ordered the recount for Precincts 7 and 16) for having been issued with grave abuse of discretion.

ISSUE

1. Whether the COMELEC en banc gravely abused its discretion by directly hearing and deciding on matters pertaining to a pre-proclamation controversy, specifically the order for a recount of ballots from Precincts 7 and 16, instead of first referring them to a division.
2. Whether the COMELEC’s order for a recount followed the proper procedure under the Omnibus Election Code.
3. Whether the issues raised by private respondent constitute a pre-proclamation controversy barred by Section 15 of Republic Act No. 7166 for elections of Members of the House of Representatives.
4. Whether the petition was rendered moot and academic by the supervening recount and canvass conducted before the COMELEC received the Temporary Restraining Order.

RULING

1. YES. The COMELEC en banc gravely abused its jurisdiction when it ordered a recount in Precincts 7 and 16. Under Section 3, Article IX of the 1987 Constitution , election cases, including pre-proclamation controversies, must first be heard and decided by a division. The COMELEC en banc has no authority to hear and decide them in the first instance. Its power is limited to deciding motions for reconsideration of division decisions.
2. NO. The COMELEC’s order of recount did not follow the procedure laid down in the Omnibus Election Code. For the allegedly missing election returns of Precinct 16 (under Section 233), the Board of Canvassers should have first obtained the missing returns or, if lost, used authentic copies upon COMELEC authority. For the allegedly ambiguous returns from Precinct 7 (under Section 234), the Board should have followed the procedure for material defects. A recount is authorized only as a last resort under Sections 234, 235, and 236, and only if the Commission is satisfied that the identity and integrity of the ballots have been preserved. Section 233 does not authorize a recount.
3. YES. The allegations in Lucera’s petition (regarding preparation, transmission, receipt, custody, and appreciation of election returns for Precincts 7 and 16, invoking Sections 233 and 236) indubitably involve a pre-proclamation controversy as defined in Section 241 of the Omnibus Election Code. Section 15 of R.A. No. 7166 expressly prohibits pre-proclamation cases on such matters for elections of Members of the House of Representatives. The COMELEC thus gravely abused its discretion in suspending the proclamation and ordering a recount. The exception in Lim v. COMELEC does not apply, as that case involved the illegal composition of the Board of Canvassers, a matter distinct from the appreciation of election returns.
4. NO. The petition is not moot and academic. The supervening recount and canvass prior to the COMELEC’s receipt of the Temporary Restraining Order on June 25, 1992, did not render the petition moot. The petitioner sought to annul the June 2 and June 13 orders for being issued with grave abuse of discretion. The prayer for a temporary restraining order aimed to preserve the status quo before those issuances. The June 2 order constituted a continuing prohibition on the Board from reconvening. Thus, the petitioner was justified in seeking injunctive relief.
DISPOSITIVE PORTION:
A writ of preliminary injunction is 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 declared NULLIFIED. Consequently, the election returns based on the recounted ballots from Precinct 16 are DISCARDED, and authentic returns from said precinct should instead be made the basis for the canvassing.