Petition for Prohibition and mandamus

REPUBLIC OF THE PHILIPPINES

Supreme Court P. Faura, Manila

COMPACT FOR PEACEFUL AND DEMOCRATIC ELECTIONS, represented by its Convenors, Hon. LORETTA ANN ROSALES, Atty. AL. S. VITANGCOL III, Engr. RODOLFO LOZADA, JR. and THOMAS AFRICA, Petitioner, -versus-

G. R. No. ________________

COMMISSION ON ELECTIONS, represented by its Chairman, Hon. JOSE A.R. MELO, Respondent. x------------------------------------------------------x

PETITION FOR PROHIBITION AND MANDAMUS _______________________________________________________

PETITIONER, by and through counsel, and unto this Honorable Supreme Court, most respectfully states: I PREFATORY STATEMENT The electronic transmission of Election Returns, without the required digital signature, from the Precinct Count Optical Scan (PCOS) machines to the various levels of Computerized Canvassing System (CCS), transgresses the prevailing law, is highly illegal, and would

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result in a plethora of electoral protests – which might lead to a “No Proclamation” scenario. This is an issue of transcendental importance, more so a constitutional question, which this Honorable Supreme Court must address and resolve to avert the breakdown of democracy in our beloved country, the Philippines. II NATURE OF THE PETITION This is a Petition for Prohibition and Mandamus under Rule 65 of the Rules of Court which seeks to enjoin the respondent from implementing Sec. 40, Paragraphs (f) to (h) of COMELEC Resolution No. 8786, the Revised General Instructions for the Board of Election Inspectors (BEI) on the Voting, Counting, and Transmission of Results in Connection with the 10 May 2010, National and Local Elections (Revised BEI Guidelines). This Petition further seeks to compel the respondent to activate the digital signature in the PCOS machines during the transmission of Election Returns to the municipal CCS. III THE PARTIES Petitioner COMPACT FOR PEACEFUL AND DEMOCRATIC ELECTIONS (COMPACT) is an unregistered organization, composed of volunteers, and convened for the purpose of ensuring clean and peaceful elections, with business address at 3rd Floor 36-B Madasalin St., Sikatuna Village, Quezon City. Its convenors are Hon. LORETTA ANN ROSALES, former congresswoman; Atty. AL. S. VITANGCOL III, the Philippine’s first

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EC-Council Certified Computer Hacking Forensic Investigator; Engr. RODOLFO LOZADA, JR., former CEO of Philippine Forest Corp.,; and Mr. THOMAS AFRICA, former Executive Director of the National Statistics Office.

All are Filipinos and of legal ages with the same

business address of COMPACT. Respondent COMMISSION ON ELECTIONS (COMELEC), is a constitutionally created independent commission, with principal office at the 8th Floor, Palacio del Gobernador, Intramuros, Manila. COMELEC is represented in this suit by its Chairman, the Hon. JOSE A.R. MELO. The herein parties may be served with notices and other processes of this Honorable Supreme Court in their respective addresses. IV STATEMENT OF FACTS AND CASE 1.

On December 22, 1997, the Philippine Congress enacted

Republic Act No. (RA) 8436 authorizing the adoption of an automated election system (AES) in the May 11, 1998 national and local elections and onwards. 2. On January 23, 2007, RA 9369 was passed authorizing anew the COMELEC to use an AES, and amending certain provisions of RA 8436. Of particular relevance is Section 19 of RA 9369––originally Sec. 18 of RA 8436,–– defining COMELEC’s specific mandates insofar as transmission and disposition of Election Returns are concerned. 3.

On March 4, 2010, respondent COMELEC promulgated

Resolution No. 8786 . Of particular interest is Sec. 40, Paragraphs (f) to (h), which states,

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“Section 40. Counting of ballots and transmission of results; Procedure. “x x x; “f) Thereafter, the PCOS shall automatically count the votes and immediately display a message "WOULD YOU LIKE TO DIGITALLY SIGN THE TRANSMISSION FILES WITH A BEI SIGNATURE KEY?", with a "YES" or "NO" option; “g) Press "NO" option. The PCOS will display "ARE YOU SURE YOU DO NOT WANT TO APPLY A DIGITAL SIGNATURE?" with a "YES" and "NO" option; “h) Press "YES" option. x x x;” (Emphasis ours.) 5. The above cited provisions of COMELEC Resolution No. 8786 runs counter to the provisions of Sec. 22 of RA 8436, as amended by RA 9369. This techno-legal lapse on the part of the respondent may lead to a widespread chaos and an avalanche of legal suits questioning the legality of the transmitted Election Returns. 6.

On April 28, 2010, petitioners sent a letter evenly dated

(Annex “A” hereof), to the respondent with the hope that the latter would correct and rectify the questioned COMELEC Resolution No. 8786 – but to no avail. Hence, this Petition for Prohibition and Mandamus. V ISSUES RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DEACTIVATING THE DIGITAL SIGNATURE DURING TRANSMISSION OF ELECTION RETURNS.

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TRANSMISSION OF ELECTION RETURNS SANS THE DIGITAL SIGNATURE IS AGAINST THE PREVAILING LAW, THUS UNCONSTITUTIONAL.

VI ARGUMENTS/DISCUSSIONS RA 8436, as amended by RA 9369. clearly mandates the respondent to incorporate a digital signature with the transmitted Election Returns.__ The penultimate paragraph of Section 22 of Republic Act No. 8436, as amended by Sec. 19 of Republic Act No. 9369, reads as follows: “SEC. 22. Election Returns. - Each copy of the printed election returns shall bear appropriate control marks to determine the time and place of printing. x x x. “x x x “The election returns transmitted electronically and digitally signed shall be considered as official election results and shall be used as the basis for the canvassing of votes and the proclamation of a candidate.” (Emphasis and underscoring ours.)

The said provision uses the word “and”, meaning that the transmitted election returns should come with a digital signature. The importance of digital signature cannot be overemphasized. It is rather clear that the absence of it would render the transmitted Election Returns unofficial, for all intents and purposes. Furthermore, it is only the Election Returns that were transmitted electronically and digitally signed that can be used as the basis for the

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canvassing of votes and the proclamation of a candidate – - and nothing less. Respondent COMELEC is in clear violation of the law when it directed the deactivation of the digital signature during transmission of Election Returns._________________ _ The wordings of Sec. 40, Paragraphs (f) to (h) of the Revised BEI Guidelines is a clear indicia that the respondent deactivated the digital signature, albeit illegally, during the electronic transmission of Election Returns. Said Sec. 40, Paragraphs (f) to (h) of the Revised BEI Guidelines reads, “Section 40. Counting of ballots and transmission of results; Procedure. “x x x; “f) Thereafter, the PCOS shall automatically count the votes and immediately display a message "WOULD YOU LIKE TO DIGITALLY SIGN THE TRANSMISSION FILES WITH A BEI SIGNATURE KEY?", with a "YES" or "NO" option; “g) Press "NO" option. The PCOS will display "ARE YOU SURE YOU DO NOT WANT TO APPLY A DIGITAL SIGNATURE?" with a "YES" and "NO" option; “h) Press "YES" option. x x x;” Respondent’s insistence, on print and broadcast media,

that

there is a digital signature in the electronic transmission of the Election Returns is clearly flawed and designed to mislead the voting public.

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The above cited Paragraphs (f) to (h) has no other import and meaning other than that the transmission of files is being done without the required digital signature. Paragraph (h) even reaffirms the non-application of a digital signature during electronic transmission of files by the BEI.

The respondent rendered the assailed portions of Resolution No. 8786 in a way probably not in accord with law.__________ The respondent rendered the assailed portions of COMELEC Resolution

No.

8786,

removing

the

digital

signature

during

transmission of Election Returns, in a away probably not in accord with applicable laws. It is rather obvious that the respondent evaded its duty to properly analyze the technical processes of the AES vis-à-vis its legal implications.

Respondent erroneously reinterpreted and supplanted

the law to suit their AES processes. As a consequence, this Honorable Supreme Court should now enjoin the respondent from further implementing such illegal acts and compel the latter to effect changes in its Revised BEI Guidelines to alleviate such perceived illegalities and forestall future legal suits relative to the same.

VI PRAYER WHEREFORE, premises considered, it is most respectfully prayed before this Honorable Supreme Court that due course be given to this

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Petition and ultimately the assailed Revised BEI Guidelines issued by the respondent COMELEC be MODIFIED as afore-averred. As an outcome of this Petition, the Revised BEI Guidelines, particularly Sec. 40, Paragraphs (f) to (h), should be modified to read as follows: “Section 40. Counting of ballots and transmission of results; Procedure. “x x x; “f) Thereafter, the PCOS shall automatically count the votes and immediately display a message "WOULD YOU LIKE TO DIGITALLY SIGN THE TRANSMISSION FILES WITH A BEI SIGNATURE KEY?", with a "YES" or "NO" option; “g) Press "YES" option. The PCOS will display "ARE YOU SURE YOU WANT TO APPLY A DIGITAL SIGNATURE?" with a "YES" and "NO" option; “h) Press "YES" option. x x x;” Petitioners further pray for such other relief and remedies as may be deemed just and equitable under the premises. RESPECTFULLY SUBMITTED. Makati City for City of Manila, 05 May 2010. AVALaw Counsel for the Petitioner Unit 1100, 88 Corporate Center Valero cor. Sedeño Sts., Salcedo Village, Makati City 1227 By: AL. S. VITANGCOL III PTR No. 2087783-1.04.2010-Makati City IBP No. 805164-1.04.2010-Cavite Roll No. 48410 MCLE Compliance No. 0018771-1.06.2010

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COPY FURNISHED Hon. JOSE A.R. MELO COMMISSION ON ELECTIONS 8TH Floor, Palacio del Gobernador Intramuros, Manila REPUBLIC OF THE PHILIPPINES ) ) S.S. ) VERIFICATION / CERTIFICATION We, LORETTA ANN ROSALES, AL. S. VITANGCOL III, and RODOLFO LOZADA, JR. , Filipinos, all of legal age, after having been duly sworn to in accordance with law, hereby depose and state that – We are the Convenors of the petitioner in the aboveentitled case; 1.

We caused the preparation and filing of the foregoing Petition, the contents of which are true and correct of our own personal knowledge; 2.

We hereby certify under oath that there is no pending action or proceeding involving the same issues, in the Supreme Court, the Court of Appeals or different divisions thereof, or any other court, tribunal or agency. If we should learn that a similar action or proceeding has been filed or is pending before any court of law or any other tribunal or agency, we shall notify this Court within five (5) days from such notice. 3.

LORETTA ANN ROSALES RODOLFO LOZADA, JR. AL. S. VITANGCOL III Affiants SUBSCRIBED AND SWORN TO before me this 6th day of May 2010, affiant exhibiting to me their respective Identification Cards, LORETTA ANN ROSALES LTO N02-93-207806, Quezon City RODOLFO LOZADA, JR. LTO N07-83-001456, Pasig City AL. S. VITANGCOL III IBP 48410, 2003, Pasig City with corresponding photograph and signature, as competent proof of their identities.

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NOTARY PUBLIC Doc. No. ____ Page No. ___ Book No. ___ Series of 2010. REPUBLIC OF THE PHILIPPINES) )ss. ) AFFIDAVIT OF SERVICE OF PLEADING I, EMMANUEL HIZON, Filipino, of legal age, after having been duly sworn to in accordance with law, hereby depose and state that on May 6, 2010, I personally served a copy of the pleading, “PETITION FOR PROHIBITION AND MANDAMUS”, entitled COMPACT et. al, Petitioner, versus COMELEC, Respondent, pursuant to Section 11 of Rule 13 of the New Rules of Civil Procedure to Hon. JOSE A.R. MELO COMMISSION ON ELECTIONS 8TH Floor, Palacio del Gobernador Intramuros, Manila

I execute this Affidavit and attest to the truth of the foregoing statements based on my own personal knowledge.

EMMANUEL HIZON Affiant SUBSCRIBED AND SWORN TO before me this 6th day of May 2010, affiant exhibiting to me his ID No. ________ issued at __________ on __________, a valid ID with photograph and signature as competent proof of his identity.

NOTARY PUBLIC

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Doc. No. ____ Page No. ___ Book No. ___ Series of 2010.