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,
 - page 4 -

“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.
 - page 5 -

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
 - page 6 -

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.
 - page 7 -

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
 - page 8 -

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
 - page 9 -

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 –

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
with corresponding photograph and signature, as competent proof of
their identities.
 - page 10 -

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
 - page 11 -

Doc. No. ____

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