Republic of the Philippines SUPREME COURT Manila EN BANC BAGUMBAYAN-VNP MOVEMENT, INC.,AND RICHARD J.

GORDON, ON HIS BEHALF AND ON BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES SIMILARLY SITUATED, PETITIONERS, VERSUS COMMISSION ON ELECTIONS, RESPONDENT. x --------------------------------------- x DR. PABLO R. MANALASTAS, AUGUSTO GUS LAGMAN, MARIA CORAZON-MENDOZA-AKOL and EVITA L. JIMENEZ, PETITIONERS, -versusCOMMISSION ON ELECTIONS, RESPONDENT. x-----------------------------------------x G.R. NO. 206719 FOR: MANDAMUS

PETITION-IN-INTERVENTION A very urgent motion for special raffle

1|Page

Petitioners-in-Intervention, by counsel, respectfully state that: 1. Petitioners-In-Intervention are all of legal age, Filipino citizens, who may be served with court processes through their undersigned counsel, and whose names and other details are as follows: a. Dr. Pablo R. Manalastas holds a PhD in mathematics from the Ateneo De Manila University and lectures in Computer Science at his alma mater and the University of the Philippines; A founding president of the Philippine Linux Users Group and a member of the National Research Council of the Philippines, he is also IT Fellow of the UP-based Center for People Empowerment in Governance (CenPEG), a policy think-tank and member-organization of the poll watchdog Automated Election Systems Watch (AES Watch); b. Agusto Gus C. Lagman is a former Commissioner of the COMELEC who has logged 51 years as an IT professional, serving four terms as president in both the Philippine Computer Society (which he helped found) and the IT Association of the Philippines. For many years, he also headed the Systems Committee of the National Movement for a Free Elections (NAMFREL) and is a co-convenor of the AES Watch and a lead convener of the TransparentElections.org.ph. c. Maria Corazon Mendoza-Akol is a co-convenor of the AES Watch, who has 39 years of experience as an IT professional to her belt. She started her professional career as a physicist with the Philippine Atomic Energy Research Center but subsequently ventured into information technology. She is the founding and incumbent president of the Philippine National IT Standards (PhilNITS) Foundation, Inc., a non-profit she helped put up in 2002 to implement a Certification program for Philippine IT professionals. She is also a
2|Page

member of the Philippine Electronics and Telecommunication Federation (ITFP), Makati Business Development Council (MBDC), Defenders of Bataan and Corregidor and NAMFREL. d. Evita L. Jimenez isExecutive Director of the CenPEG, a co-convener of the AES Watch, and chair of the Board of Trustees of the Mariners Polytechnic College Foundation in her native Bicol region.She has been in non-government organization (NGO) work for almost three decades, doing community organizing, research, publication work, media advocacy, education and training for the poor and marginalized sectors-farmers, urban poor, indigenous people and Moro (Muslims),women and children, out of school youth and for seafarers, overseas Filipino workers (OFWs), professionals and the religious sector.For AES Watch she also serves as national coordinator for Project 3030, which studies various aspects of the Philippine automated elections She holds an MA in Philippine Studies at the University of the Philippines and is currently working on a PhD in the same field, also at the state university. 2. The Petitioners-in-Intervention are taxpayers, voters/legible to vote, and who all have a common interest in the protection of the sanctity of the ballot and electoral reforms. Petitioners institute this suit in their capacity as taxpayers. 3. Respondent Commission on Elections is a constitutional body of the Republic of the Philippines in charge of all aspects of elections in all elective positions in the Philippine government, with office address at Intramuros, Manila where it may be served court processes. 4. The Respondent is also served a copy of Petition through the Office of the Solicitor General. the instant

5. On October 5, 2009, the COMELEC --- and/or through its contractor SMARTMATIC-TIM --established storage and
3|Page

configuration facilities for the election equipment and paraphernalia that will be used for the computerized elections in May 2010. 6. The facilities consisted of warehouses located at the corner of Ion and East Streets, Light Industry and Science Park of the Philippines in Cabuyao, Laguna (subject facilities). 7. The subject facilities housed the PCOS machines and their CF cards, the Election Management Servers (EMS), Consolidated Canvassing System (CCS) Servers and other equipment. 8. The imperative considerations that impelled the decision to institute the location of the facilities in the subject facilities are as follows: a. accessibility to the COMELEC head office as the same is within a sixty kilometers radius, and; b.security arrangements, monitoring, and supervision were in place and arranged in said location. 9. Following the 10 May 2010 elections, PCOS machines and the CF cards used in the electoral exercise were brought back to the subject facilities for storage. In August 2010, PET issued Precautionary Protection Order on Preservation of the Data Storage Devices Containing the Results of the 2010 Elections 10. On31 August 2010, the Presidential Electoral Tribunal issued a resolution (ANNEX A)entitled Manuel A. Roxas vs. Jejomar C. Binay and designated as PET Case No. 004,which granted separate motions filed by the parties for a Precautionary Protection Order. 11. The relevant section of the Order states thus: WHEREAS, the Tribunal adopted on August 31, 2010, a resolution in the above-captioned case, to wit:
4|Page

P.E.T. Case No. 004 (Manuel A. Roxas vs. Jejomar C. Binay). the Tribunal resolved to NOTE the Comment (on the Answer with Motion for Preliminary Hearing on Affirmative Defenses and Counter-Protest with Motion for Precautionary Order), dated August 25, 2010, filed by protestant Manuel A. Roxas, and CONSIDER the same as an Answer (to the Counter-Protest of protestee VicePresident Jejomar C. Binay), in compliance with the Tribunals Resolution and the Summons, both issued on August 3, 2010. The Tribunal resolved to: (a) DENY the Motion for Preliminary Hearing on Affirmative Defenses of protestee VicePresident Jejomar C. Binay; and (b) GRANT the separate motions of the protestant and protestee for a Precautionary Protection Order, pursuant to Rule 36 of the 2010 Rules of the Presidential Electoral Tribunal. NOW, THEREFORE, pursuant to Rule 36 of the 2010 Rules of the Presidential Electoral Tribunal, You, the Commission on Elections, your agents, representatives, or persons acting in your place or stead, including the municipal treasurers, election officers, and the responsible personnel and custodians, are hereby DIRECTED to PRESERVE and SAFEGUARD the integrity of the ballot boxes, their contents and keys, list of voters with voting records, books of voters and other documents and paraphernalia used in the May 2010 elections for the position of Vice-President of the Republic of the Philippines, as well as the data storage devices containing the electronic data evidencing the results of elections in the contested 76, 340 clustered precincts subject of the Protest and Counter-protest, effective immediately and continuing until further orders from this Tribunal(emphasis supplied)
5|Page

12. Pursuant to the PET resolution, neither the COMELEC nor SMARTMATIC-TIM, nor any other entity, may move out the EMS Server and other paraphernalia, including the PCOS machines and the CF cards stored in the warehouses, to another facility elsewhere, without the Tribunals knowledge and consent. 13. The security, integrity, and genuineness of the machines, software, paraphernalia, and stored data would be at risk of being compromised without prior submissions made by the COMELEC giving satisfactory proof that would assure the national electorate --- including the PET and the electoral contest/protest parties --- that pieces of evidence on the reliability/accuracy of the machines and software, and the results of the elections would not be manipulated, lost, or rendered irretrievable during the preparations to transfer, during transit, and during their storage and relocation in any new storage or warehouse facility. The COMELEC purchased defective PCOS machines, CCS hardware and software 14. On 21 March 2012, the COMELEC issued Resolution No. 8376, which allowed it to exercise the Option to Purchase the PCOS machines and CCS hardware and software used in the 10 May 2010 national elections. 15. On this basis, COMELEC and SMARTMATIC-TIM entered into a Deed of Sale(ANNEX B) dated 30 March 2012, in which the latter sold to the former the 81,280 PCOS machines and CCS hardware and software, including the EMS Servers and other election paraphernalia. All of these are stored at the Cabuyao, Laguna facility. 16. The Deed of Sale provided that SMARTMATIC-TIM committed itself to perform services and deliver software/hardware that would ensure the reasonable system modifications, including upgrades/enhancements of the software, without any additional charge, to be used in the 2013 elections.
6|Page

The hardware, software and election paraphernalia stored in the subject facilities contain evidence that will prove that the PCOS machines and software used by COMELEC were defective, obsolete, and lacking essential upgraded software as admitted and/or counteralleged in US case between Smartmatic and Dominion 17. On 11 September 2012, SMARTMATIC-INTERNATIONAL --the other half of the SMARTMATIC-TIM joint venture --- filed a suit against the Canadian company DOMINION VOTING SYSTEMbefore a Court in Delaware, USA.1 18. In the said suit, SMARTMATIC INTL. alleged that DOMINION had the contractual obligation to provide the former with hardware, software, firmware, and technical support needed to enable SMARTMARTIC INTL. to exploit the board license granted by DOMINION. 19. DOMINION countered in its Verified Counter-Claim that SMARTMATIC had no authority to sell the machines to the COMELEC, as the license to market the technology it had given to SMARTMATIChad already expired. Despite the expiration of this license, DOMINION alleged that SMARTMATIC still sold the PCOS technology to COMELEC. DOMINION further alleged that since it had already rescinded the licensing contract with SMARTMATIC, it was not anymore obliged to allow SMARTMATIC to use its software and PCOS voting system.2 20. Notably, the upgrades which SMARTMATICis obligated to provide under its contract with COMELEC is the same upgrades

The suit is entitled Smartmatic International Corporation, Smartmatic USA Corporation, Smartmatic International Holding B.V. v. Dominion Voting Systems International Corporation, Dominion Voting Systems, Inc., Dominion Voting Systems Corporation and Iron Mountain Intellectual Property Management, Inc. and is docketed as Civil Action No. 7844-VCP. A redacted version may be accessed at http://www.scribd.com/doc/110048368/Smartmatic-Complaint-Vs-Dominion <Last accessed 28July 2013>.
2

A redacted copy may be accessed at http://www.namfrel.com.ph/v2/news/bulletin/Dominion%20response%20to%20Smartmatic%20Oct%2017,%2 02012.pdf<last accessed 29 July 2013>

7|Page

which according to the DOMINION, only it has the expertise necessary to perform the required upgrades.3 21. Under paragraph 8.7 of the Contract for the Provision of an Automated Election System for the May 10, 2010 Synchronized National and Local Elections between the COMELEC and SMARTMATICTIM Corporation, it is provided thatSMARTMATICagreed to provide software updates to the COMELEC without charge. Further, SMARTMATIC recognized that in order to fulfill its obligations under the contract awarded by the COMELEC, it needs to secure a license from DOMINION.4 22. Moreover, SMARTMATICalleged in its verified complaint that In reliance on the parties obligations set form in the MOU, the Binding Term Sheet, and the license agreement, SMARTMATICTIM, a Philippine-based Joint Venture Company, executed a contract with COMELEC in July 2009 to provide a paper-based automated election system for the Project utilizing the Licensed Technology.5 23. Notably, while Smartmatic anchored its performance of contract with the COMELEC on the existence of the license with Dominion, it is now bringing suit against the latter for the termination of the same License Agreement. 24. In the Delaware case, Smartmatic alleged that Dominion International breached its obligation under the License Agreement by: (1) improperly purporting to terminate the License Agreement based upon an incorrect and pretextual interpretation of the geographic scope of the Agreements non-compete clause; (2) failing to deliver fully functional technology for use in the 2010 Philippines national election; (3) failing to provide timely technical support during and after the Philippines election; (4) failing to work collaboratively with Smartmatic to find alternative uses for the Licensed Products;
3 4

Id. Paragraph 14 of the Verified Complaint of Smartmatic, Smartmatic et al., v Dominion et al., supra 5 Paragraph 17 of the Verified Complaint of Smartmatic, Smartmatic et al., v Dominion et al., supra

8|Page

(5) failing to provide Smartmatic with information relating to the Licensed Technology, including new developments to the Licensed Technology; (6) intentionally frustrating Smartmatics right to market, lease, and sell the Licensed Technology; and (7) failing to place in escrow the required source code, hardware design, and manufacturing information.6 25. On the other hand, Dominion International, in its Verified Counterclaim asserted that17. Upon information and belief, the Philippines required PCOS systems for the 2010 election. Because Smartmatic neither owned nor had access to PCOS voting systems, in or about early 2009 Smartmatic approached Dominion about an agreement to license Dominions PCOS voting systems, including hardware, software and firmware. Xxx 20. Upon information and belief, on or about July 10, 2009, Smartmatic TIM entered into a contract with the Philippines Election Commission (COMELEC) for the provision of PCOS voting machines and other systems for the 2010 Philippines national election. Although the COMELEC/Smartmatic TIM contract required PCOS voting systems that Dominion International would be providing, Smartmatic International did not disclose that contract to Dominion International when it was executed and has refused to provide a copy to Dominion International despite several requests by Dominion International. Upon information and belief, the contract essentially called for COMELEC to lease approximately 82,000 PCOS voting machines for 2010 from Smartmatic TIM with an option to purchase them at a later time for use in future elections. 21. Upon information and belief, Smartmatic TIM won the bidding process in the Philippines by submitting a price for
6

Paragraph 12 of the Verified Complaint of Smartmatic, Smartmatic et al., v Dominion et al.,available at http://www.scribd.com/doc/110048368/Smartmatic-Complaint-Vs-Dominion, <Last accessed 27 July 2013>.

9|Page

PCOS voting systems that was only approximately onethird of what it had discussed with Dominion. As a result, during re-negotiations with Dominion in the summer and fall of 2009, Smartmatic International insisted that Dominion reduce its price per unit from per voting machine to per machine and threatened to terminate the License Agreement if Dominion International did not accede to those demands. Xxx 23. On October 9, 2009, Dominion International and Smartmatic International entered into a PCOS Framework License Agreement (the License Agreement) that superseded all prior agreements between Dominion and Smartmatic. Consistent with Dominion Internationals intent to provide a limited license to Smartmatic International and protect Dominion Canadas market positions in Canada and the United States, the License Agreement provided, essentially, that Smartmatic International: a. would have a nonexclusive license to sell Dominion Internationals PCOS voting systems throughout the world other than Canada and the United States (Section 2.1) h. would pay Dominion International a license fee for each voting machine delivered by Smartmatic to a third party (Section 4); and i. would enter into individual Statements of Work (SOWs) with Dominion International for technical support, maintenance and upgrades for voting systems sold to individual foreign countries (Section 1.6). (Emphasis supplied)7 26. In the automation contract, SMARTMATIC gave COMELEC a warranty that it was the exclusive owner of the software.
7

A redacted copy may be accessed at http://www.namfrel.com.ph/v2/news/bulletin/Dominion%20response%20to%20Smartmatic%20Oct%2017,%2 02012.pdf<last accessed 29 July 2013>

10 | P a g e

10.1 The PROVIDER warrants that all intellectual property rights in or related to the Goods and/or Services, including but not limited to patents and other know-how and copyright, both registered and unregistered, owned and/or otherwise used by the PROVIDER, and all goodwill related thereto are, and shall remain at all times, the exclusive property of SMARTMATIC; and COMELEC acknowledges the same, and shall not exploit, reproduce or use the same except as expressly provided in this Contract.8 27. Indeed, the upgrades which SMARTMATIC is obligated to provide under its contract with COMELEC are the same upgrades which according to Dominion, only it has the expertise necessary to perform. 28. It is relevant to point out in this connection, that the hardware, software and election paraphernalia stored in the subject facilities contain evidence that will prove that the PCOS machines and software used by COMELEC were defective, obsolete, and lacking essential upgraded software as admitted and/or counter-alleged in above-discussed Delaware, USA case between Smartmatic and Dominion; making available and examining the SOURCE CODE of the PCOS Machines, which are the subjects of this instant proceeding, will only be two of several necessary measures to establish the integrity of the Philippine automated elections where such a system was used.

The COMELEC is poised any time now to remove the election hardware, software
8

A copy may be found posted on COMELECs wbesite at http://www.comelec.gov.ph/?r=Elections/2010natloc/Modernization/2010NationalLocal/SBAC/Contract/Contr actArticle10

11 | P a g e

and paraphernalia from the subject facilities and relocate the same to a new location without the approval of the various electoral tribunals and without proof that the security, integrity and genuineness of the said election materials would not be compromised. 29. On June 29, 2012, the COMELEC en banc issued Resolution no. 9486 authorizing the conduct of bids for the lease of a warehouse with configuration facilities in order to store the purchased PCOS machines, as well as to have a facility for the conduct of the configuration activities and other technical procedures involving the said PCOS machines.9 30. For this purpose, COMELEC allocated the amount of One Hundred Twelve Million Pesos (Php 112,000,000.00), inclusive of taxes and duties, as budget for the lease of warehouse with configuration facilities for one year. 31. The biddings conducted purportedly yielded no winning bidders, and while the COMELEC has extended the storage of the election hardware, software and paraphernalia in the subject facilities, it has repeatedly indicated that it will remove the same and relocate to a new but yet undisclosed facility. 32. While the COMELEC has readied moves to relocate at anytime the election materials to a new facility, it has not obtained and has no intentions of complying with the following essential obligations inherent in its mandate to preserve the security, integrity and genuineness of election materials involved in election-related cases: a. Obtain the approval of the various electoral tribunals where election-related cases are pending; b. Give prior notice to and/or obtain the approval of the various courts where election-related cases are pending;

See http://www.comelec.gov.ph/?r=Elections/2013natloc/res/res9486<last accessed 20 July 2013>

12 | P a g e

c. Accomplish the formulation, dissemination, and publication of procedures/system/arrangements adopted by the COMELEC that will afford the party-litigants the opportunity to witness, guard, and check that the removal, transit, and relocation of the election equipment and materials; d. Accomplish the prior notice to and solicitation of comments/feedback/information from the election cases party-litigants and the public at large, and; e. accomplish the institution, implementation, and enforcement of procedures/system/arrangements that will afford the party-litigants the opportunity to witness, guard, and check that the removal, transit, and relocation of the election equipment and materials will not lead to their being compromised; The fundamental importance of safeguarding the original condition of the election materials as crucial evidence in the pending election contest/protest cases --- as well as the cases questioning the regularity of the automated elections --- is demonstrated by numerous failuresof the COMELEC to ensure fair and honest elections as shown in the factual discussions that follow below. 33. The legal wrangle between SMARTMATIC and DOMINION revealed that SMARTMATIC had been, among other things, unable to provide to COMELEC (a) the source code and (b) the upgrades to the software required by the Option to Purchase clause. 34. Moreover, SMARTMATIC was unable to source needed hardware for the refurbishment of the PCOS machines the same ones used in the 10 May 2010 elections, such as replacement batteries for all of the machines, the replacement Mylar polymer film sheet that is an essential part of the PCOS machines optical reader assembly, among other parts needing replacement.

13 | P a g e

35. After all, the PCOS machine is not a self-contained contraption, needingother implements to function fully, such as a battery for backup power, a modem for wireless transmission and BGAN (Broadband Global Area Network) for transmission in remote areas, as shown by this slide used by SMARTMATIC personnel for training Board of Election Inspectors (BEIs): 36. Moreover, SMARTMATIC was only able to deliver to COMELEC 79,865 PCOS machines or 1,415 PCOS machines short of the 81,280 PCOS units it purportedly sold to COMELEC under the Deed of Sale of March 30, 2012. 37. This is despite SMARTMATICs avowal in the same Deed of Sale that it will deliver and turn over to the BUYER the hardware and software in good working condition.10 38. The consequences of SMARTMATICs failure to ensure that every PCOS machine it sold to COMELEC under the Option to Purchase clause was properly inventoried, checked for defects and refurbished if needed proved to be disastrous, as will be seen in the following discussion: FIRST CASE IN POINT: 39. There were two official mock elections held to test the PCOSmachines for the 13 May 2013 elections. The first was held on 24 July 2012 in the House of Representatives, using the best available PCOS and under the best environmental conditions; that is, dry indoor luxury plus temperature comfortable to humans and ideal to PCOS.11 40. The second was held on 02 February 2013 using the best available PCOS and under realistic environmental conditions. 41. Unfortunately, both mock polls were full of embarrassing glitches.12
10

ANNEX B, Deed of Sale, at 2.

11Despite the ideal showroom setting, the PCOS errors were so huge that Smartmatic had to invent new

laws of mathematics to bury the blunders under a deep confusion of numerical jargon.
12

Annex B

14 | P a g e

42. The defects were so glaring that the Board of Election Inspectors (BEI) or Teachers were forced to improvise, using common school childrens pencils to serve as rolling pins for thermal papers, as can be seen in this visibly front page headline picture of the newspaper Manila Bulletin:13

43. It thus came as no surprise that people clamored for more mock elections to practice rectifying the glitches.14 44. The Joint Congressional Oversight Committee (JCOC) under the Election Automation Law (Republic Act No. 9369) held a hearing on 6 February 2013 to investigate the dismal mock election which Comelec and SMARTMATIC describe as not perfect15 while countless many others demanded more tests. 45. However COMELEC and SMARTMATIC, insisting that the positive review of the PCOS machine performance by a certain
13 14

An online grab from the Manila Bulletins 3 February 2013 Front Page Comelec run marred by glitches, Manila Standard Today, February 13, 2013, available at http://manilastandardtoday.com/2013/02/03/comelec-test-run-marred-by-glitches/<last accessed 28 July 2013> 15Matikas Santos, Comelec urged to conduct mock polls again, Philippine Daily Inquirer, February 6, 2013, available at http://newsinfo.inquirer.net/353681/comelec-urged-to-conduct-mock-elections-again<last accessed 28 July 2013>

15 | P a g e

Technical Evaluation Committee was enough, conduct additional mock tests.16

did not anymore

46. Instead, they explained away the failure of PCOS machines to properly read votes by charging that some of those who participated in the mock polls made a mockery of the process by putting smileys on the ballot ovals instead of properly shading them.17 47. Yet it really did not make much of a difference for ballots that were properly shaded during the mock polls: the PCOS machines kept on rejecting the ballots or gave them inaccurate readings. 48. The accuracy ratings of the PCOS machines in the mock polls were even worse than that reached by the machines when they were first used during the May 10, 2010 elections. 49. According to COMELEC requirements and specifications, the PCOS machines to be used in the Automated Elections of 2010 needed to have an accuracy rate of 99.995% or higher. This is provided for in the Terms of Reference of the bidding for the automated election of 2010. The required accuracy rate means that of only 1 vote out of every 20,000 case may be miscounted. 50. But in a study conducted by Ateneo University math professor Dr. Felix P. Muga II, it was found that the accuracy rating of the SMARTMATIC-PCOS machines was way below the standard set by the COMELEC.18 51. The results of the Random Manual Audit (RMA) commissioned by the COMELEC itself after the 2010 elections, held in June and July of that year, found that the PCOS machines only had an accuracy rating of 99.6%. This means that the PCOS machines had 80 miscounts for every 20,000 voting marks that it appreciated.19

16

Maricel V. Cruz, Comelec: no perfect mock election, Manila Standard Today, February 7, 2013, available at http://manilastandardtoday.com/2013/02/07/comelec-no-perfect-mock-election/<last accessed 28 July 2013> 17 Maila Ager, Smiley on ballots fails to make Comelec smile, Philippine Daily Inquirer, February 28, 2013, available at http://newsinfo.inquirer.net/366505/smiley-on-ballots-in-mock-polls-fails-to-make-comelecsmile<last accessed 28 July 2013> 18 Dr. Felix Muga II, statement to the House Committee on Suffrage and Election Reforms, February 16, 2011, available at http://www.cenpeg.org/eucenpeg.com/top%20stories/feb%202011/MUGA_Big_voter_%20disenfranchisement.html<last accessed 28 July 2013> 19 Id.

16 | P a g e

52. In the 2012 mock elections, the accuracy rating shown by the PCOS machines was even much lower, at only 97.43%. Whereas in 2010 the PCOS machines had 80 miscounts per 20,000 votes, in 2012, the miscounts rose to 557 miscounts per 20,000 votes.20 53. This is in clear violation of the COMELEC Terms of Reference for the purchase of the PCOS machines which provides for a 99.995% accuracy rating. 54. As can be seen in the mutual admissions in the charges and countercharges exchanged between SMARTMATIC and DOMINION and discussed above, the COMELEC encountered serious problems with the PCOS machines of DOMINION which SMARTMATIC sold to the poll body. 55. Then on February 15, 2013, the COMELEC en banc issued Resolution No. 9640 instructing the Board of Election Inspectors (BEI) NOT to digitally sign the ER as shown in (f), (g) and (h) of section 51.21 56. The pertinent section now reads thus:

SEC. 51. Closing of Polls; Counting of ballots and transmission of results; Procedure. a. The Chairman shall place the iButton security key on top of the iButton security key receptacle and apply slight pressure thereon. Remove the iButton security key from its receptacle, after which the PCOS will display the Main Menu; b. c. Press the CLOSE VOTING option in the Main Menu; The screen will display a message ARE YOU SURE YOU WANT TO CLOSE VOTING? NO MORE BALLOTS WILL BE ACCEPTED AFTER THIS with YES or NO options. Select YES option; d. The PCOS will request for the PIN of the poll clerk who will then enter his PIN, and press ENTER. The PCOS will validate the PIN. The PCOS will request for the second PIN from the third member who will then enter his PIN, and press ENTER. The PCOS will validate the PIN and display a message PIN ACCEPTED; e. The screen will display a message POLL IS BEING CLOSED PLEASE WAIT, followed by another message VOTING HAS BEEN CLOSED NO MORE BALLOTS WILL BE ACCEPTED BY THIS PCOS;

20

Jose Carlos L. Maningat, The Devil is in the PCOS: why your vote may not count in 2013, available at http://www.thepoc.net/voters-education/16960-the-devil-is-in-pcos-why-your-vote-may-not-count-in2013.html<last accessed 28 July 2013> 21 See a copy of the Resolution posted on the COMELECs website at http://www.comelec.gov.ph/?r=Elections/2013natloc/res/res9640 <last accessed 28 July 2013>

17 | P a g e

f.

Thereafter, the PCOS shall automatically count the votes and immediately display options; a message WOULD YOU LIKE TO DIGITALLY SIGN THE TRANSMISSION FILES WITH A BEI SIGNATURE KEY?, with YES or NO

g.

Press the NO option. The PCOS will display ARE YOU SURE YOU DO NOT WANT TO APPLY ANY DIGITAL SIGNATURE?, with YES or NO options;

h.

Press the YES option. A message shall be displayed PREPARING ELECTION REPORTS. PLEASE WAIT ... followed by a message GENERATING TRANSMISSION FILES. . . PLS WAIT then by a message PRINTING 8 COPIES OF NATIONAL RETURNS PLEASE WAIT and the PCOS automatically prints the 8 copies; (emphasis supplied)

.. 57. The COMELEC resolution, in the view of AES Watch, deliberately denies to the concerned citizens and election watchdogs an important tool to check the authenticity of the election returns, saying it practically puts a stumbling block to our effort in detecting election tampering if there was one.22 58. The absence of the digital signatures, whose presence would have allowed the electronic authentication of ballots, along with a host of problems the continued use of the PCOS machines in the countrys elections subsequently caused, made the May 13, 2013 midterm-elections especially vulnerable to fraud and manipulation.

SECOND CASE IN POINT: 59. Come Election Day of 13 May 2013, the massive glitches caused by old and defective PCOS machines proved disastrous. 60. Below are pictures of voter disenfranchisement by machine breakdown from various sources reporting on the conduct of the recently concluded mid-term elections:

22

Dr. Felix Muga II, 2013 Philippine Automated Elections: Worse than in 2010, summary of presentation to th the 5 State of the Presidency Conference at the University of the Philippines, July 20, 2013. A copy is attached as ANNEX C

18 | P a g e

Halos isang oras na nasira ang isang PCOS machine sa Sucat, Muntinlupa kaninang umaga. Kuha ni YouScooper @adsibalpic.twitter.com/BQj0HXNBgW

19 | P a g e

Medyo nakakaworry ito. Hindi gumagana ang PCOS machine sa precint 4188A sa Quezon City. #eleksyon2013pic.twitter.com/iRHRdqZQhk

61. The voters were not remiss in their duty to vote on the day of elections. They followed the instructions. They shaded the ballots in accordance with the instructions. After completion of the shades, they already performed their duty to the country.

20 | P a g e

PCOS machine sa Buhatan Integrated National School ginamitan ng stick para bumaba ang balota @gmanews#eleksyon2013pic.twitter.com/BHyF20LhiP

62. To make matters worse, many PCOS machines conked out and failed to transmit on election day.

21 | P a g e

63. Both COMELEC and SMARTMATIC initially denied the number of defective PCOS that failed to transmit was significant, saying they expect no more than 200 failing machines on election day as a matter of statistical probability.23 64. Subsequently however, COMELEC chair Brillantes himself admitted that around 18,000, or 24-25 percent of the around 78,000 machines deployed in the midterm elections, experienced transmission problems. 65. An editorial of the Philippine Daily Inquirer noted that this figure roughly dovetailed with the figure cited by poll watchdog Automated Election System Watch in its statement on May 18, which noted that four days after this years election, 18,187 clustered precincts or 23 percent of the total number failed to transmit election returns, affecting if not potentially disenfranchising 8.6 million votes.24 66. The newspaper editorial was referring to a statement AES Watch had issued in the wake of the suspension of the operations of the PPCRV Transparency Server by the COMELEC.25 THIRD
CASE IN POINT:

67. Later in the evening of 13 May 2013, while SMARTMATIC President Alberto Castro Rico was in the PPCRV Command Center, PPCRV reported a mathematically-impossible quick count: it reached over 12 million votes for one senatorial candidate even if only over 1,418 precincts had transmitted the results.26 68. PPCRVs Ana De Villa Singson daughter of PPCRV head Tita De Villa blamed it on an allegedly faulty SMARTMATIC computer script, but it would be the first of a series of large-scale statistical anomalies in the election results that to date, have not been satisfactorily explained by either the COMELEC or SMARTMATIC.
23

TJ Dimacali, Complaints of PCOS failures still a tiny fraction of 78,000 machines, GMAnews.tv, May 13, 2013, available at http://www.gmanetwork.com/news/story/308143/news/nation/complaints-of-pcos-failuresstill-tiny-fraction-of-78-000-machines<last accessed 28 July 2013> 24 Editorial, Philippine Daily Inquirer, May 24, 2013, available at http://opinion.inquirer.net/53257/brillantes-tantrums<last accessed 28 July 2013> 25 Id. 26 Camille Diola, PPCRV apologizes for wrong tally, The Philippine Star, May 13, 2013, available at http://www.philstar.com/election-2013/2013/05/13/941827/ppcrv-apologizes-wrong-tally<last accessed 28 July 2013>

22 | P a g e

69. Moreover, it did not inspire public confidence that a SMARTMATIC personnel a certain Daton Cerino was caught allegedly deleting files from the said Transparency Server at the Pope Pius Center in Manila after the foul up became public.27 70. The political party UNA charged that Information Technology (IT) personnel discovered Cerino manipulating data, with one of the SMARTMATIC files in the server deleted by Cerino. COMELEC and SMARTMATIC belied the allegations, saying the technician was there to do maintenance work.28 71. It certainly was a surprise to find out that SMARTMATIC was the same entity hired by PPCRV to run and maintain the server, considering that the PPCRV was supposed to perform an independent poll watchdog function. FOURTH CASE IN POINT: 72. Only days after the anomalies in the PPCRV count was manually corrected by SMARTMATIC, the ratio of winners from the administration, opposition and independent candidates remained astonishingly proportional to the mathematically-impossible quick count, in what would be known as the 60%-30%-10% statistical anomaly. 73. In this anomaly, first exposed by Ateneo mathematics professor Felix Alex Muga II, the running tally showed administration senatorial candidates constantly obtaining about 60% of the votes, the United Nationalist Alliance (UNA) candidates about 30% of the votes while all others about 10 % of the votes, as if following a deterministic formula. Even the percentages for each candidate followed a deterministic pattern, raising concerns that the vote count was being manipulated. 74. This is what Professor Muga had publicly posted, after studying the COMELEC tallies culled from the so-called Transparency Server run by the PPCRV:
27

Alvin Murcia, Smartmatic personnel caught tampering with transparency server,Tribune, May 16, 2013, available at http://www.tribuneonline.org/index.php/headlines/item/14193-smartmatic-personnel-caughttampering-with-ppcrv-transparency-server<last accessed 28 July 2013> 28 Id.

23 | P a g e

This is an interesting pattern. How about adding the votes of the 33 senatorial candidates? Then add all the votes of the 12 Team PNoy candidates? Also, the 9 UNA candidates? And the 12 other candidates? Then find the percentages of each of the 3 blocks based on the total votes for senators. Do these to each of the 16 official comelec canvass reports. And we have a smooth and interesting pattern. .................. : Team PNoy : UNA : INDEPENDENTS 16th Canvass : 59.62893% : 30.81569% : 9.55538% 15th Canvass : 59.60983% : 30.81795% : 9.57222% 14th Canvass : 59.56556% : 30.85261% : 9.58182% 13th Canvass : 59.58681% : 30.80571% : 9.60748% 12th Canvass : 59.65443% : 30.76914% : 9.57643% 11th Canvass : 59.58261% : 30.82615% : 9.59124% 10th Canvass : 59.56647% : 31.01960% : 9.41393% 9th Canvass : 59.42234% : 30.97933% : 9.59834% 8th Canvass : 59.20138% : 31.18850% : 9.61012% 7th Canvass : 58.94287% : 31.43134% : 9.62579% 6th Canvass : 59.05578% : 31.19342% : 9.75080% 5th Canvass : 58.76772% : 31.40464% : 9.82763% 4th Canvass : 58.62199% : 31.21022% : 10.16779% 3rd Canvass : 58.40926% : 31.17321% : 10.41753% 2nd Canvass : 58.07319% : 32.22611% : 9.70070% 1st Canvass : 58.36498% : 31.46823% : 10.16679% Average : 59.12838% : 31.13637% : 9.73525% Note that the Certificates of Canvass are supposed to be received randomly. But we still have an interesting pattern.29

75. To be sure, Mugas own colleagues at the AESWatch, notably his fellow Ateneo professor, Dr. Pablo Manalastas, were mindful of a valid alternative explanation for this phenomenon, in particular, what is known in statistical theory as the Law of Large Numbers (LLN). According to Dr. Manalastas, the 60-30-10 pattern may be explained thus: a large number of votes counted over time will tend to average out and follow an expected pattern.30 76. "Naturally, the bigger the number of votes canvassed, the closer you get to the true will of the people," Manalastas said on his public posts an observation shared by New York University science Dean Michael Purugganan, a noted Fil-Am academic. 31

29 30

https://www.facebook.com/lex.muga/posts/4783147587919 <lastaccessed 28 July 2013> TJ Dimacali, 60-30-10 voting pattern: conspiracy or just math? GMAnework.com, available at http://www.gmanetwork.com/news/story/309719/scitech/science/60-30-10-voting-pattern-conspiracy-or-justmath<last accessed 28 July 2013> 31 Id.

24 | P a g e

77. "If (Comelec) was reporting results that came in from all over the country, and each canvass was from a large chunk of voters, then each canvass would be very similar to each other and close to the national result," he said, adding that the data which Muga analyzed doesn't quite fall neatly into the 60-30-10 pattern. "(For example), the range from canvass to canvass is 54% to 64% (for Team PNoy). That is a huge 10% spread!" Purugganan said.32 78. Dr. Manalastas said the LLNs explanatory power will collapse if a precinct-by-precinct analysis of votes provided these were the same sources for the vote tally used in the national shows otherwise.33 79. Dr. Muga subsequently came out with a larger study of the phenomenon covering national, regional, provincial, town and city levels, based on the succession of election canvasses culled from the PPCRVs Transparency Server. The results confirmed his preliminary findings.34 80. At the regional level, he noted the following pattern:

32 33

Id. Id. 34 Dr. Felix Muga II, 2013 Philippine Automated Elections: Worse than in 2010, summary of presentation to the 5th State of the Presidency Conference at the University of the Philippines, July 20, 2013. A copy is attached as ANNEX C

25 | P a g e

81. At the provincial level and the level of independent cities, a similar pattern obtained:

82. The election canvass from the Bohol showed a similar pattern:

26 | P a g e

83. The Davao City returns:

84. Studying results from 59,667 clustered precincts posted by the PPCRV in its website, he saw the following similar 60-30-10 pattern:
27 | P a g e

28 | P a g e

29 | P a g e

30 | P a g e

85. Thus, data from the PPCRV Transparency Server shows that across various levels precinct, cities, municipalities, provincial, regional and national even allowing for statistical variations the 60-30-10 pattern holds. FIFTH CASE IN POINT: 86. Despite the 60-30-10 anomaly, or perhaps, because of it, COMELEC rushed the proclamation of winners in the senatorial elections, through an initial proclamation of the first six winners on May 17, 2013, another three the next day, May 18, 2013 and the last three on May 19, 2013, and this, even when it had canvassed only 129, or 42 percent, of the 304 certificates of canvass (CoCs) containing 39,898,992 votes. 87. The COMELEC justified the proclamation by saying that in any case, the remaining 175 CoCs, or 58 percent, will not be enough to affect in any significant way the votes of the Top 12 candidates. 88. The COMELEC official tally showed the winning candidates garnering votes ranging from 20 million to 13 million.
31 | P a g e

89. On June 5, 2013, COMELEC, sitting as the National Board of Canvassers, issued NBOC Resolution No. 0010-13 declaring the following twelve (12) candidates for Senator as winners, and proclaimed them as duly elected senators in the May 13, 2013 automated national and local elections.35

Senatorial Candidate 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 LLAMANZARES, Mary Grace P. LEGARDA, Lorna Regina B. CAYETANO, Allan Peter S. ESCUDERO, Francis Joseph G. BINAY, Maria Lourdes Nancy S. ANGARA, Juan Edgardo M. AQUINO, Paolo Benigno IV A. PIMENTEL, Aquilino Martin III D. TRILLANES, Antonio IV F. VILLAR, Cynthia A. EJERCITO, Joseph Victor G. HONASAN, Gregorio B. GORDON, Richard J. ZUBIRI, Juan Miguel F. ENRILE, Juan Ponce Jr. C. MAGSAYSAY, Ramon Jr. B. HONTIVEROS, Ana Theresia N. HAGEDORN, Edward S. VILLANUEVA, Eduardo C. MADRIGAL, Maria Ana Consuelo A.

Votes Obtained36 20,337,327 18,661,196 17,580,813 17,502,358 16,812,148 16,005,564 15,534,465 14,725,114 14,127,722 13,822,854 13,684,736 13,211,424 12,501,991 11,821,134 11,543,024 11,356,739 10,944,843 8,412,840 6,932,985 6,787,744

35

See the COMELECs official website, at http://www.comelec.gov.ph/?r=Elections/2013natloc/res/nbocres001013 36 Id.

32 | P a g e

21 22 23 24 25 26 27 28 29 30 31 32 33

MAGSAYSAY, Maria Milagros Esperanza H. CASIO, Teodoro A. MACEDA, Ernesto A. COJUANGCO, Margarita D. ALCANTARA, Samson S. DE LOS REYES, John Carlos G. BELGICA, Greco Antonious Beda B. MONTAO, Ramon E. PENSON, Ricardo L. DAVID, Rizalito Y. SEERES, Christian M. LLASOS, Marwil N. FALCONE, Baldomero C.

5,620,429 4,295,151 3,453,121 3,152,939 1,240,104 1,238,280 1,128,924 1,040,293 1,040,131 1,035,971 706,198 701,390 665,845

90. The NBOC resolution was supposedly based on the last canvas covering a total of 39, 898,992 voters who participated in the 13 May 2013 elections. 91. However the COMELEC, until now, has yet to show the COCs and SOVs from all the municipalities and provinces covered by the last canvass. 92. The decision by COMELEC to proclaim the winners among the senatorial candidates despite what was ostensibly a grossly incomplete tally raised the hackles of key personalities in the legal firmament, among them, the former Chief Justice Artemio Panganiban and elections lawyer Romulo Macalintal, Jr.37

37By

Philip C. Tubeza, Nikko Dizon and Norman Bordadora, Comelec move not valid, says election lawyer, Philippine Daily Inquirer, May 18, 2013, available at http://newsinfo.inquirer.net/411217/proclamationquestioned<last accessed 28 July 2013>

33 | P a g e

93. When COMELEC proclaimed the first six winners of the race for the Senate, Macalintal cried foul, calling the proclamation null and void because it does not contain the number of votes obtained by the alleged winners and no ranking was made but merely based on alphabetical order.38 94. Under its rules, Macalintal said, the Comelec does not even have the authority to make a partial proclamation since the rules provide for a completion of canvass as basis of such proclamation.39 95. Former Chief Justice Panganiban too, was alarmed by the COMELECs move. The former chief magistrate said the established rule has been that one can be proclaimed only after all ballots have been officially canvassed. There is an exception to this, which is resorted to when the leading candidate(s) have posted an insurmountable lead such that the remaining uncanvassed ballots will not adversely affect the results.40 96. Yet, according to the retired chief justice, when the six senatorial candidates were proclaimed on May 16, the official canvass of the Comelec covered only 72 out of the 304 certificates of canvass (COCs), which canvassed COCs covering just a little more than 13 million of the countrys 52 million registered voters.For this reason, the exception to the general rule cannot be applied by the COMELEC because the uncanvassed ballots will easily overtake the canvassed ones.41 97. He also rejected the subsequent justification made by the COMELEC that the proclamation was based on the so-called group canvass reports saying that in my long years as a lawyer, this is my first time to hear of these electoral instruments. Thus he called the proclamations made by the COMELEC imprudent and illegal. He further said as follows: In any event, law and settled jurisprudence require official COCs, not any other documents, as bases of senatorial proclamations.
38 39

Id. Id. 40 Artemio V. Panganiban, With Due Respect: Premature, imprudent, illegal, Philippine Daily Inquirer, vailable at http://opinion.inquirer.net/52851/premature-imprudent-and-illegal<last accessed 28 July 2013> 41 Id.

34 | P a g e

If the Comelec wants to change its rules of proclamation even at the risk of offending jurisprudence, it is required by law to first publish its new rules and wait for the mandatory lapse of seven days after publication before it can use the new rules.42 SIXTH CASE IN POINT: 98. Sometime on July 11, 2013, even without a new resolution from the NBOC, the COMELEC quietly posted a revised full tally that effectively reduced the votes for each candidate anywhere from four million to 100,000:43

SENATOR of PHILIPPINES

Candidate POE, GRACE LEGARDA, LOREN (NPC) ESCUDERO, CHIZ CAYETANO, ALAN PETER (NP) BINAY, NANCY (UNA) ANGARA, EDGARDO (LDP) AQUINO, BENIGNO BAM (LP) PIMENTEL, KOKO (PDP) TRILLANES, ANTONIO IV (NP) VILLAR, CYNTHIA HANEPBUHAY (NP) EJERCITO ESTRADA, JV (UNA) HONASAN, GRINGO (UNA) GORDON, DICK (UNA)
42 43

Party INDEPENDENT NATIONALIST PEOPLES' COALITION INDEPENDENT NACIONALISTA PARTY UNITED NATIONALIST ALLIANCE LABAN NG DEMOKRATIKONG PILIPINO LIBERAL PARTY PARTIDO DEMOKRATIKO PILIPINO LAKAS NG BAYAN NACIONALISTA PARTY NACIONALISTA PARTY UNITED NATIONALIST ALLIANCE UNITED NATIONALIST ALLIANCE UNITED NATIONALIST

Votes 16340333 14942824 14137127 14129783 13310851 12853305 12376372 11846088 11389173 11070265 11010630 10620981 10160019

Percentage 6.84% 6.26% 5.92% 5.92% 5.57% 5.38% 5.18% 4.96% 4.77% 4.64% 4.61% 4.45% 4.25%

Id. The discussion on this issue is based for the most part on an account written by newspaper columnist Jarius Bondoc atGotcha: Comelec website displaying reduced senatorial votes, The Philippine Star, July 15, 2013, available at http://www.philstar.com/opinion/2013/07/15/970841/comelec-website-displaying-reducedsenatorial-votes<last accessed

35 | P a g e

Candidate

Party ALLIANCE UNITED NATIONALIST ALLIANCE NATIONALIST PEOPLES' COALITION LIBERAL PARTY AKBAYAN (CITIZENS' ACTION PARTY) INDEPENDENT BANGON PILIPINAS LIBERAL PARTY

Votes

Percentage

ZUBIRI, MIGZ (UNA) ENRILE, JUAN PONCE JR.(NPC) MAGSAYSAY, RAMON JR. (LP) HONTIVEROS, RISA (AKBAYAN) HAGEDORN, ED VILLANUEVA, BRO.EDDIE (BP) MADRIGAL, JAMBY (LP) MAGSAYSAY, MITOS (UNA)

9490215 9167583 9153842 8900861 6876841 5603663 5409440 4484515 3491581 2746359 2405682 988795 957212 898719 825149 821033 777484 564291 561041 516863

3.97% 3.84% 3.83% 3.73% 2.88% 2.35% 2.26% 1.88% 1.46% 1.15% 1.01% 0.41% 0.40% 0.38% 0.35% 0.34% 0.33% 0.24% 0.23% 0.22%

UNITED NATIONALIST ALLIANCE MAKABAYANG KOALISYON CASIO, TEDDY (MKB) NG MAMAMAYAN MACEDA, MANONG UNITED NATIONALIST ERNIE (UNA) ALLIANCE COJUANGCO, UNITED NATIONALIST TINGTING (UNA) ALLIANCE DELOS REYES, JC ALLIANCE FOR THE COMMON (KPTRAN) GOOD ALCANTARA, SAMSON SOCIAL JUSTICE SOCIETY (SJS) BELGICA, GRECO DEMOCRATIC PARTY OF THE (DPP) PHILIPPINES PENSON, RICARDO INDEPENDENT DAVID, LITO ALLIANCE FOR THE COMMON (KPTRAN) GOOD MONTAO, MON INDEPENDENT LLASOS, MARWIL ALLIANCE FOR THE COMMON (KPTRAN) GOOD SEERES, CHRISTIAN DEMOCRATIC PARTY OF THE (DPP) PHILIPPINES DEMOCRATIC PARTY OF THE FALCONE, BAL (DPP) PHILIPPINES Statistics Total number of Voters who actually voted

315686744

99. While it featured the same 12 senatorial winners in the old tally, the rankings for two Senators had been altered: formerly on the
44

See http://2013electionresults.comelec.gov.ph/

36 | P a g e

3rd spot, Cayetano slid to the 4th, switching places with Escudero, who is now No. 3 from being no. 4. 100. It also shows a much lower voter turnout of 31,568,679 voters (for all 304 COcs), or 8,330,313 less than its previous tally of 39,898,992 (for only . 101. This is shown in the following comparative table provided by Philippine Star columnist Jarius Bondoc:45

102. The COMELEC has not come up with a satisfactory explanation for this glaring inconsistency.46

SEVENTH CASE IN POINT: 103. Various electoral protests have been filed with the HRET, many of which inevitably involve how the PCOS machines read and transmitted the votes in the 13 May 2013 mid-term elections.

45

Jarius Bondoc, Gotcha: Comelec website displaying reduced senatorial votes, The Philippine Star, July 15, 2013, available at http://www.philstar.com/opinion/2013/07/15/970841/comelec-website-displaying-reducedsenatorial-votes 46 Jarius Bondoc, Gotcha: If Comelec bungles website, what more poll automation? The Philippine Star, July 19, 2013http://www.philstar.com/opinion/2013/07/19/987141/if-comelec-bungles-website-what-more-pollautomation<last accessed 28 July 2013>

37 | P a g e

104. The following electoral protests have been filed with the HRET, as of 4 June 2013:47

47

RG Cruz, Halalan 2013: Losers who filed electoral protests, June 4, 2013, available at http://www.abscbnnews.com/focus/06/04/13/halalan-2013-losers-who-filed-electoral-protests<last accessed 28 July 2013>

38 | P a g e

39 | P a g e

105. The fundamental importance of safeguarding the original condition of the election materials as crucial evidence in the pending election contest/protest cases --- as well as the cases questioning the regularity of the automated elections --- is demonstrated by theabove-discussed numerous failures of the COMELEC to ensure fair and honest elections. 106. The COMELEC must not be allowed to relocate the election materials to a new facility without complying with the safeguards necessary to insure that their security, integrity, and genuineness are not compromised. PETITIONERS ARE ENTITLED TO A TEMPORARY RESTRAINING ORDER (TRO) DIRECTING THE COMELEC TO STOP THE REMOVAL OF ELECTION HARDWARE, SOFTWARE, AND PARAPHERNALIA FROM THE SUBJECT FACILITIES
AND ITS RELOCATION TO A NEW AND UNDISCLOSED FACILITY WITHOUT COMPLIANCE WITH FUNDAMENTAL REQUIREMENTS THAT ENSURE THE INTEGRITY OF THE ELECTION MATERIALS

The COMELEC is poised any time now to remove the election hardware, software and paraphernalia from the subject facilities and relocate the same to a new location without the approval of the various electoral tribunals and without proof that the security, integrity and genuineness of the said election materials would not be compromised. 107. As in the 10 May 2010 elections, all the PCOS machines and CF cards deployed by COMELEC and SMARTMATIC-TIM for the nationwide 13 May 2013 midterm elections have been returned to the subject facilities in Cabuyao, Laguna. 108. However, outside or in addition to the question of Source Code presented in the original petition in the instant case, above-discussed anomalies involving the use of the PCOS in midterm elections prompt serious doubts about the integrity of just concluded electoral process: the the the the

40 | P a g e

(a) FIRST CASE IN POINT: the utter failure of the mock polls conducted as a prelude to the 13 May 2013 midterm elections to meet accuracy ratings provided by law. (b) SECOND CASE IN POINT: the massive glitches caused by old and defective PCOS machines that disenfranchised many voters. (c) THIRD CASE IN POINT: the suspension of the tally being made by the PPCRV Transparency Server because of a mathematically-impossible quick count: it reached over 12 million votes for one senatorial candidate even if only over 1,418 precincts had transmitted the results. (d) FOURTH CASE IN POINT: The 60-30-10 statistical anomaly in the PPCRV-run Transparency Server. (e) FIFTH CASE IN POINT: the undue haste with which the COMELEC proclaimed of the 12 winners of the senatorial race, despite a grossly incomplete canvass and based on a highly dubious group canvass and its failure to produce the COCs and the SOVs from the precinct, municipal and provincial levels. (f) SIXTH CASE IN POINT: COMELEC posted a posted a revised full tally that effectively reduced the votes for each senatorial candidate reflected in the group canvass it had used to proclaim the winners in the senatorial race to anywhere from four million to 100,000; (g) SEVENTH CASE IN POINT: various electoral protests filed with the HRET, and the pending case before the PET involving the Vice Presidential contest in the 10 May 2010 national elections require the preservation of electronic and other evidence generated by the deployment of the PCOS. 109. Thus, making available and reviewing the Source Code for the PCOS machines is only one small part of a comprehensive forensic study needed to establish the credibility of the automated elections.
41 | P a g e

110. Indeed, the above discussion supports the contention that the myriad of technical and legal problems associated with the use of the PCOS machines in the last two elections are not isolated but indicate to a large-scale, if not systematic electoral fraud, or at least, of widespread hardware and software malfunction resulting in massive voter disenfranchisement. 111. There is an urgent need to preserve and safeguard the integrity of the PCOS machines, ballot boxes, their contents and keys, list of voters with voting records, books of voters and other documents and paraphernalia, including the primary and backup CF cards of all PCOS machines, which contain ballot images, precinct ERS, and audit logs, and all passwords and programs needed to access data in the primary and backup CF cards have to be preserved. Also the SOVs and COCs from all MBOC CCS and all PBOC CCS, and the NBOC CCS, have to be preserved in their original EML file formats, together with the passwords and programs to access these EML files. 112. While the COMELEC has readied moves to relocate at anytime the election materials to a new facility, it has not obtained and has no intentions of complying with the following essential obligations inherent in its mandate to preserve the security, integrity and genuineness of election materials involved in election-related cases: a. the approval of the various electoral tribunals; b. the prior notice to and/or approval of the where election-related cases are pending; various courts

c. the formulation, dissemination, and publication of procedures/system/arrangements adopted by the COMELEC that will afford the party-litigants the opportunity to witness, guard, and check that the removal, transit, and relocation of the election equipment and materials; d. the prior notice to and solicitation of comments/feedback/information from the election cases party-litigants and the public at large, and;
42 | P a g e

e. the institution, implementation, and enforcement of procedures/system/arrangements that will afford the partylitigants the opportunity to witness, guard, and check that the removal, transit, and relocation of the election equipment and materials will not lead to their being compromised; 113. If the transfer and relocation of the election equipment, software and materials are not properly and legally done, there is grave risk of irreparable damage to the public interest, considering that COMELEC is poised to move the same materials out of the said facility and transfer them to a yet undisclosed location, where away from the prying eyes of the public electronic evidence of the fraud foisted on the Filipino people in the last elections may be forever erased by the perpetrators. 114. Finally, considering the urgency of the issues raised in this Petition-in-Intervention, it is likewise an urgent matter that this Honorable Court submit it for special raffle of the same so that the said issues may be immediately addressed. PRAYER WHEREFORE, PREMISES CONSIDERED, it is respectfully prayed that: (a) this Honorable Court issue a temporary restraining order and preliminary prohibitory injunction directing the COMELEC to preserve and safeguard the integrity of the PCOS machines, ballot boxes, their contents and keys, list of voters with voting records, books of voters and other documents and paraphernalia, including the primary and backup CF cards of all PCOS machines, which contain ballot images, precinct ERS, and audit logs, and all passwords and programs needed to access data in the primary and backup CF cards, the SOVs and COCs from all MBOC CCS and all PBOC CCS, and the NBOC CCS, in their original EML file formats, together with the passwords and programs to access these EML files, and maintain the said materials in their present location at the subject facilities in Cabuyao, Laguna;
43 | P a g e

(b) Prior to any valid relocation of the election equipment and materials, order the COMELEC to do as follows: i. ii. obtain the tribunals; approval of the various electoral

give prior notice to and/or obtain approval of the various courts where election-related cases are pending; accomplish the formulation, dissemination, and publication of procedures/system/arrangements adopted by the COMELEC that will afford the partylitigants the opportunity to witness, guard, and check that the removal, transit, and relocation of the election equipment and materials; give prior notice to and accomplish the solicitation of comments/feedback/information from the election cases party-litigants and the public at large, and; accomplish the institution, implementation, and enforcement of procedures/system/arrangements that will afford the party-litigants the opportunity to witness, guard, and check that the removal, transit, and relocation of the election equipment and materials will not lead to their being compromised;

iii.

iv.

v.

c. this Honorable Court to direct the COMELEC to facilitate a collaborative independent review by concerned political parties, poll watchdogs, including AES Watch and the NAMFREL, of the PCOS machines ballot boxes, their contents and keys, list of voters with voting records, books of voters and other documents and paraphernalia, including the primary and backup CF cards of all PCOS machines, which contain ballot images, precinct ERS, and audit logs, and all passwords and programs needed to access data in the primary and backup CF cards, the SOVs and COCs from all MBOC CCS and all PBOC CCS, and the NBOC CCS, in their original EML file formats, together with the passwords and programs to access these EML files.

44 | P a g e

d. This Court, given the imminence of the transfer by COMELEC of the above-mentioned election paraphernalia to another location, to submit the instant Petition-in-Intervention for a special raffle so that the urgent and grave concerns it raises may be immediately addressed. It is further prayed that after due hearing, this Honorable Court issue an order permanently enjoining COMELEC from transferring or removing the same election paraphernalia from the subject facilities until full compliance with the above-mentioned requirements that would ensure the safety and integrity of the election materials. Other relief just and equitable prayed for. under the premises are likewise

Makati City for Manila City: 29 July 2013.

ROQUE & BUTUYAN LAW OFFICES 1904 Antel 2000 Corporate Centre 121 Valero Street, Salcedo Village Makati City 1200 mail@roquebutuyan.com Tel. Nos. 887-4445/887-3894 Fax No: 887-3893

H. HARRY L. ROQUE, JR. PTR No.369262 /Jan 18, 2013/Makati City IBP No. 499912/Lifetime/Makati City Roll No. 36976 MCLE Exemption No. IV-000513 (issued on Feb. 15, 2013)
45 | P a g e

ROMEL REGALADO BAGARES PTR No. 3692460 /Jan 18, 2013/Makati City IBP No. 877496/Jan 03, 2012/South Cotabato Roll No. 49518 MCLE Compliance No. IV-0011417 (issued on Jan. 11, 2013)

Copy furnished The Commission on Elections Office of the Solicitor General Explanation

46 | P a g e