REPUBLIC OF THE PHILIPPINES

Supreme Court
P. Faura, Manila

SAMAHANG WALANG KATULAD

FOR PEACEFUL 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. 1231232882

COMMISSION ON ELECTIONS,
represented by its Chairman,
Hon. JOSE A.R. MARI CHAN
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 result in a plethora of
electoral protests – which might lead to a “No Proclamation” scenario.

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 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 SAMAHANG WALANG KATULAD FOR

PEACEFUL ELECTIONS(SAMAHAN) 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 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 SAMAHAN.

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 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. MARI
CHAN.

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,

“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

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 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.

TRANSMISSION OF ELECTION RETURNS SANS THE

DIGITAL SIGNATURE IS AGAINST THE PREVAILING
LAW, THUS UNCONSTITUTIONAL.

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 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
canvassing of votes and the proclamation of a candidate – - and nothing less.

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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.

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.

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 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
Petition and ultimately the assailed Revised BEI Guidelines issued by the
respondent COMELEC be MODIFIED as afore-averred.

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 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. MARI CHAN

COMMISSION ON ELECTIONS
8TH Floor, Palacio del Gobernador
Intramuros, Manila
REPUBLIC OF THE PHILIPPINES )
CITY OF DAVAO ) )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 –

1. We are the Convenors of the petitioner in the above-entitled

case;
2. We caused the preparation and filing of the foregoing Petition,
the contents of which are true and correct of our own personal
knowledge;
3. 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.

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

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with corresponding photograph and signature, as competent proof of his
identity, personally signed the foregoing document and acknowledged that
he executed the same.

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 SAMAHAN 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. MARI CHAN

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 PRC ID No. _25232__ issued at NHA Buhangin
on 15th of January 2019, a valid ID with photograph and signature as
competent proof of his identity, personally signed the foregoing
document and acknowledged that he executed the same.

NOTARY PUBLIC

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Doc. No. _53
Page No. _1__
Book No. _2

Series of 2010.

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