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ONG JR. V.

COMELEC
G.R. No. 105717 |December 23, 1992
Petitioner Ong and private respondent Lucero were candidates for the congressional
seat of the second district of Northern Samar during the May 1992 elections. Ong
garnered 204 more votes than Lucero. Subsequently, Lucero filed a petition with the
COMELEC for the suspension of the proclamation of Ong and for a recount of some
precincts with prayer for the holding of special elections. Acting on the petition, the
COMELEC en banc ordered Provincial Board of Canvassers not to reconvene and to
stop the canvassing of votes, considering the pendency of a pre-proclamation
controversy before the COMELEC. In a subsequent resolution, the COMELEC also
granted Luceros prayer for a recounting of votes. Hence, Ong filed petition for
certiorari on the ground that the COMELEC en banc committed grave abuse of
discretion in ordering the chairman of the PBC of Northern Samar not to reconvene
the board and in granting a recount of the ballots.
HELD:
(1) The COMELEC en banc gravely abused its jurisdiction when it ordered a recount in
the precincts because these are matters which should have been first referred to
its division.
(2) 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. 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.
(3) 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 involve pre-proclamation issues, specifically on the preparation
of election returns. Consequently, since for purposes of elections, no preproclamation case is allowed against 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 order suspending the proclamation of the winner of
the congressional seat.
(4) Private respondents reliance on the Lim v. COMELEC case, where the SC 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.