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 return 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 a 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:

"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." (Underscoring 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 Canvasser, 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." (Underscoring 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, 234 and 236 of this Code; (Underscoring 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 Representatives 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 a 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.
Feliciano, J., see concurring and dissenting opinion.
Padilla, Regalado, and Davide, Jr., JJ., in the result.

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^[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 and 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." x x x

^[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.

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