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  • Ideszr - Aguilar V Comelec - Petition For Mandamus.27 October 2010

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    Ideszr.aguilar v Comelec.petition for Mandamus.27 October 2010

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    Ideszr - Aguilar V Comelec - Petition For Mandamus.27 October 2010

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    REPUBLIC OFTHE PHILIPPINES.) 2uP> SUPREME COURT = MANILA ACNOV IL PN 3:18 Francisco 8. Aguilar, Jr., Theodore B. M. Aquino, Hermenildo R. Estretia, Jr., Ma. Salome 4. Mable, Jose V. Manatad, and. Guillermo Santos, Petitioners, eae Gx ne, 19420% COMMISSION ON ELECTIONS, represented by its Chairman Jose A.R. Melo, ‘Respondent. FOR Petitioners, Francisco 8. Aguilar, Jt., Theodore B. M. Aquino, Hermenildo R. Estrella, Ir., Ma. Salome A, Mable, Jose V. Manalad and Guillermo Santos (“Concerned Citizens”), through counsel, unto this Honorable Court most respectfully state that: NATURE OF THE PETITION ‘This is a Petition for Mandamus secking from this Honorable Court an Onder to compel the Commission on Elections to disclose to petitioners as Concemed Citizens the Photo images of all ballots east per precinct, together with the proclaimed results per precinct, during the May 2010 elections. THE PARTIES ‘The petitioners, Francisco S, Aguilar, Jr., Theodore B. M, Aquino, Hermenilde ®. Estrella, J Ma. Salome A. Mable, Jose V. Manalad, and Guillermo Santos, ate Filipino ccitizens!, registered voters and taxpayers of the Republic of the Philippines. They may be served with court processes, notices, orders and decisions through the undersigned counsel, ‘The respondent Commission on Elections (COMELEC) is the constitutional ‘goverment body vested with the powers and functions of enforcing and administering all Jaws and regulations relative to the conduct of an election. 1987 Philippine Constitution, Article 1X. Constitutional Commissions, C. Commission om Elections, Section 2(1). The respondent holds principal office at the Comelec Building, Postigo Street, Intramuros 1002 Manila, Philippines, where it may be seryed with summons and other court procésses, It is represented by its Chairman Jose A.R. Melo. ‘On 10 May 2010 and thereabout, respondent COMELEC conducted the first nationwide elections for national and local positions under the Automated Election System (AES) In the course of the implementation of the AES, the petitioners noted and verified with much concern that respondent COMELEC actually and virtually disabled various Security features designed 1 protect the integrity of the voting and counting process. These disturbing developments included but are not limited to the following: {@) removal of the requirement that the individual members of the board election inspectors (BEN) affix their digital signatures to the election returns, effectively leaving the electronic process of counting the ballots and transmitting the results to the oral control of the private outsource service provider Smartmatic TIM Corporation 1 See Guingana v. Comelec. G.R. No. 191846, 16 May: 2010, which held that “it the petition is anchored 6n the penple’s right to information on matters of public eoncemn, any citizen ean be the real party in lsterest. The requirement of personal interest js satisfied by the mere fact that the petitioner isa citizen, find therefore, pert of the general public which possesses the right. There is io need to:shovr any special interest in the result. It is sufficient that petitioners are citizens and, as such, arc interested in the faitiful execution ofthe lass.” (Smartmatic), without any check mechanism whatsoever on the part of the BEI, contrary to law, Cometec Resolution No. 8786, amending Resolution No. 8739, Sec. 40, 04 March 2010: Republic Act No. 8436, as amended hy Republic Act No. 9369, Secs. 2219) anal 30/25)"; Republic Act No, 8792, Sees. 3°, 8 and 9": 2 Section 40. “Counting of hallow and ramsmission of results: Procedure... (Remumbered) (is Revised) 1) 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; 2) Press "NO" option. The PCOS will display “ARE YOU SURE YOU DO NOT WANT TO. APPLY A DIGITAL SIGNATURE?" with @ "VES" and "NO" option; bh) Press "YES" option. A message shall be displayed "PRINTING & COPIES OF NATIONAL RETURNS. PLBASE WAIT...” 3 SEC. 19, Soction 18 of Republic ActNo, 8436 is hereby amended t read ay fallains: “SEC, 22. Eleciromie Reisens, - Each copy of the of the printed election returns shall bear ‘appropriate control marks te determine the time and place of printing. Eack copy shall be signed and ‘thumbmarked by all the members of the Board of eleetion inspectors and the watchers present. Ifany ‘member of the boar! of election inspectors present refuses t9 sign, the chairman of the board shall note the ‘same copy in each copy of the printed election returns. The member of the board af clection inspectors ‘cancemed refusing to sign shall be compelled to explain his or her refusal to do so. Failure to explain an lusjustifiable refusal to sign cack copy of the printed clection return by any member of the board of election inspectors shall be punishable as provided in this Aet. The chaitinan of the boards shall them publicly read ‘anc announce the total numbers of registered voters, the total number of voters who actually voted and the ‘oral nuabers ef votes obtained by euch candidate based on the election retums. “The election returas transmitted electronically and digitally sigmed shall be consikered as official lection results and shall be used as the basis for the canvassing of votes and the proclamation of a ‘eandidate.”| 4 SEC. 25. A new Section 30-is hereby provided 10 read as follows “See. 30. Authentication of KTectrondcally Transmined Election Results, - The manner of determining the authenticity aid due execution of the certificates shall conform with the provisions ‘oF Republic Act No. 7166 as may be supplemented ar modified by the provision of this Act, where applicable, by appropriate authentication and certificatian procednes for electranie signatures ax provided in Republic Act No. 8792 as well asthe rules promulgated by the Supreme Court pursuant 5 Section 5. Definition of Terms- For the purposes of this Act, the following terms are defined, as follows. {¢) "Electronic signature" refers to any distinctive mark, characteristic und/or sound in electronic form, cepresenting the identity of person and attached to oF logically associated with the electronic data message or electronic document or any: methodology: or procedures employed or adopted by 1 person and ‘executed or adepted by stich person with the intention of authenticating or approving an electeonic data Ingssage or electronic document. 6 Section 8, Legal Recognition of Eleceronsc Signaturcs.- An electronic signature on the electronic document shall be equivalent to the signature of a person on & written document ifthe signature is an electronic signature and proved by showing that a prescribed procedure, not alterable by the parties () disablement of the éuilt-in Littra Violet (UV) scanning capability of the Precinet Count Optical Scan (PCOS) machines and their subsequent replacement by ‘hand-held seanners, virally leaving the system incapable of detecting fake or ‘unauthorized ballots without the proper UV markings, since the use of hand-held scanners was rendered impractical on election day duc to the clustering of up to seven (7) precincts per PCOS machine, thereby raising questions regarding the authenticity and machine readability of all the ballots cast nationwide; Comelec Resolution No. 8786, 04 March 2010, Sec. 9: huep:livewvs.emanews. lamps-will-be- used-to-check-ballots-authenticity; http.//www.gmanews.tv/story/] 87441 /wrong-ink- |-in-printing-ballots-wv- ~marki http://www emanews. tvistory/188069/poll-exec-wants-smartmatic-to-pay-for-uy-lamps* {¢) deviation of the random manual audit (RMA) from the mandated process, whereby the RMA was nor conducted immediately after the transmission of election results (but rather conducted one or mote days later), no/ conducted right at the precinct (but rather conducted elsewhere such the canvassing centers or the treasurer's office), and the results of the audit were or released immediately after the audit (but rather after interested in the electronic document, existed under whiel- (2) A method is used to identify the party sought to be bound and to indicate said party's access to the electronic document necessary for his cocsent oF approval through the electronic signature; {) Suid method is reliable and appropriate far the purpose for which the electronic document vas Séieraied or communicated. in the light of all circumstances, including any relevant agreement; (c) is eoessary for the party sought to be bound, in or order to proceed further with the transaction to have execuied or provided the electronic signature, and (a) The other party is authorized und enable to verify the electronic signsture and to make the decision to proceed with the transaction authenticated by the sarme. 7 Section 9. Pressompiort Relating to Electronic Signatwres-In any proceedings iovolving an electronic signature, it shall be presumed that, (a) The electronic signature is the signature of the person ta whom it correlates: and. 4b) The electronic signature was affixed by that persan with the intention of signing or approving the electronic document unless the person relying on the clectranically designed etectronte dacument tows or has noticed of defsets in oF uieeliability of the signature or relianee on the electronic signature is ‘ot reasonable under the eizcurnstances 4 several days or weeks of “processing”): Comelee Resolution No, 8837, Sees. 8(a) and (b)* and il Par, 4"; Republic Act No. 8436, as amended by Republic Act No. 9369, Sec, 29(24y On 09 July 2010, the petitioners together with other Filipino citizens, in their individual capacities and in representation of their respective people's organizations (i.e. Global Filipino Nation, Global Filipinos Australia, Global Filipines Canada, Our Barangay, Inc., Philippine American Press Club — Northern California, and We Citizen Advocates for Reforms Movement [We Care], Inc., under the umbrella of the Protect our Democracy Movement [PODMD. being concerned with the actual and virtual disablement by respondent COMELEC of various security features of the AES in the course of its implementation, lodged a formal written request with respondent ‘COMELEC for the disclosure of existing electronic information on matters of public concem, comptised of: (@) all election results (in text format) organized per precinct for all national and local positions during the May 2010 elections, and (b) all photo images of all ballots cast (in JPEG format) similarly organized per precinct during the May 2010 elections, Section. 8 DATE, TIME and PLACE of RMA, a) The RMA shall ake place in the randomly selected clustered polling precinet. b) The RMA shall be conducted on May 10, 2010, immediately after the shut down of the PCOS machine after completion of all its functions, ‘9 Section 11. MANNER OF COUNTING VOTES. Upon conclusion af the RMA, all RMAT members ‘shall affix their signatures om the Minutes atiesting to the eaments thereof. Pall watchers shall witness the ‘recording of entries and. affixing of signatures of the RMAT members. The Chairman shall immediately notify the PES of the results of the RMA, whe in turn, shall report the same to the TWO-RMA. 10 SEC. 24. 4 new Section 2 hereby provided to reads as Fallows: “SEC 29, Rancom Mansa! Audis,- Where the ABS is used, there shalt be 4 random manual audit mone precinct per congressional district randomly chosen by the Commission in each province sind city. Any difference between the automated wad manual count will result in the determination of root cause and initiate & manual count for those precincts affected by the computer oF procedural error.” 5 pursuant to Section 7, Article If om the Bill of Rights of the 1987 Constitution in relation 10 Section 7(f) of Republic Act No. 9369" on the Automated Election System (AES), to enable the voters at large to audit the AES and verify the accuracy of reported election results. A certified copy of the PODM leuter request dated 07 July 2010 is attached as Annex “A”. ‘On 06 October 2010, the petitioner Francisco S. Aguilar, Jr. and undersigned counsel Demosthenes B. Donato, together with other Filipino eitizens, in their individual capacities and in representation of their respective people's organizations (i.c. Filipino Migrant Workers Group [FMW1: Lawyers for Transparency [LAT]; Partidong Pandaigdigang respondent COMELEC. Certified copies of the various letter requests are attached as ipino [PPP Central]) filed/refiled similar requests for disclosure with JSollows: LAT letter request dated 14 September 2010 is attached as Annex “B"; PPP Central leer request dated 01 Octoder 2010 Is attached as Annex “C”; and FMW letter request dated 04 October 2010 ts aitached ax Annex “D'" ‘On 12 October 2010, after several telephone follow-ups failed to secure any response from COMELEC, petitioner Ma. Salome A. Mable assisted by undersigned counsel Demosthenes B. Donato, personally followed up the request for information with ‘the office of Chairman Jose A.R. Melo. Regrettably, petitioner verified that the request LI Section 7. “The right of the peaple to i formation on matters of public concern shall be recognized. ‘Ascess to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be ‘afforded the citizen, subject to such limitations as may be provided by law 12 SEC. 7, Section 7 of Republic Act No, 8436 is hereby arnended te read as follows... “SECS. Miminum System Copabilinies, -'The autofnated election system mast at least have ‘the following functional capabilities... (F) System auditability which provides supporting documentation for verifying the correctness of reported election results.” See alsa Section S(¢) of Republic Act No, 8792 which provides as follows: "Electronic document” refers to information or the representation of information, data, figures, symbols or other ‘modes of written expression, described or however represented, by which a righ is established or an ‘obligation extinguished, or by which a fact may be prove and affirmed, which is receive, recorded, ‘Aransmitted, stored, processed, rotrieved or produced vlecisonically” \was still “pending review” by the Acting Executive Director, Bartolome I. Sinocruz, Jr., without any clear guidance as to when the review process will be completed, Thus, afler more than three (3) months from the time when the petitioners lodged on 09 July 2010 the first formal written request for the disclosure of the subject information, respondent COMELEC continues to fail to cemply with or even just respond to the request, without any reasonable explanation or justification whatsoever. ‘The unexplained and unjustified failure of the responcient COMELEC, tantamount toa “constmuctive” denial of the request for information, is without legal of reasonable grounds and violates the petitioners’ constitutional right to information on a matter of public concer. ‘Notably, the conduct of the national and local elections on 10 May 2010 is. ‘without any doubt a matter of public concern as held in the case of Guingona vs. Comelec”. It involvesnothing less than the exercise by the registered voters of their “sacred right of suffrage", The accuracy of the proclaimed election results is so ‘obviously not “among the species exempted by law from the operation of the ‘sonstitutional guarantee.’ 13 GIR. No. 191846, 06 May 2010, The decision reads in part as follows: “There can be no doubt that the Coming 10 May 2010 elections is a matter of great public eoncom. On election day, the country’s ‘registered voters will come out to exercise the sucred right of suffiage. Nat only is ftan exercise that tensures the preservation of cur dentosraey, the coming elections also embadies our people's last ounce of hope fora better furure. Its the final opportunity, patiently awaited by eur people, for the pencefil ‘transition of power to the next choses leuders of our country. Ifthere is anything capable of directly affecting the lives of ordinary Filipinas so as to come within the ambit of a public concern, itis the coming elections, more so with the alarming. turn of events that continue to unfold, The wanton wastage of public funds brought about by one bungled contract after another, in staggering amoures, isin iself a inatter of grave public concern.” M4 ta 15 Id. The decision reads in part as follows: “I is nat enough, however, that the information petitioners: eck in writ of mandamws is a matter af public concer. For mandamis to ie in 4 given case, the {information must not be among the species exempted by law from the operation of the constinitional guarantee. In this case, respondent Comelee failed to cite any provision of lave exempting the jnformacioa sought by petitioners (i.e, complete details of its preparations for the impending 10 May 2010 clections) from the coverage of the government's constitutional uy to disclose fully snformation (of public concern.” 7 Clearly, the disclosure of election related information is a ministerial duty of respondent Comelec as held in the cited case of Guingona vs. Comelec!*. The regulatory discretion of Comelec applies onl to “the manner of examining public records”. Petitioners respectfully submit that the constitutional right to information under Section 7, Article Ill on the Bill of Rights of the 1987 Constitution is self-executory, subject only te such limitations as may be provided by law, as held in the case of North Colabaio vs. Government of the Republic of the Philippines" Petitioners furthermore respectfully submit that the disclosure of the scanned photo images of ballots cast do not in any way violate the secrecy of the ballot" under 16 Id. The decision ches Legaspi we. Civil Service Commission, G.R: No. L-72119, 29 Mary 2007, and reads in part as follows: “Thus, while the manner of examining public records may be subject to reasonable regulation by the government ageney’ in custody thereof, the duty to disclose the information. of puablle concer, and to afford access (a public records cannot be discretionary on the part of said agencies. Certainly, its performance cannot he made contingent upon the discretion of such agencies. Otherwise, the enjoyment of the constitutional right may be rendered nigatory by any whimsical exercise of agency discretion, The constitutional duty, net being discretionary, its performaniee may be compelled by a writ of mandamus ina proper case.” 17 1a. citing Legaspr vs Civil Service Commission, GR. No 1-72119, 29 Min’ 1987. Legercp# reuds in part a Fallows: "In bath the Subido and the Badoza cases. We were emphatic in Our statement that the thority ¢o regulate the manner of examining public records does not carry with it the power to probibit. A distinction has to be made between the discretion to refuse outright the disclosure of or aceess to 2 particular infirmation and the authority to regulate the manner in which the access is to be afforded. The first is « imitation upon the availability of access to the information sought, which only the Legisinture may impose (Art. II, Sec. 6, 1987 Constitution). The second pertains wo the government agency charged ‘with the custody of public records, tts awthority to regulate access is to be exercised solely to the end that damage 10, or loss of, public records may be avoided, undue interference with the duties of said agencies ‘muy be prevented, and more importantly, that the exercise of the same constitutional ri shall be assured (Subido vs. Ozaeta supra)” ‘G.R. No, 183591. 14 October 2008. The decision reads in part os follows: “The right of ancess to public ‘documents, ts enahrined in both the 1973 Constitution abd the 1987 Constitution, bas been recosnized aya self-executory constinutional right... The policy of full public diselosure enunciated in abave-quoted Section 28 complements the right of tcesss to information on raitiers of public conesen found in the Bill ‘Of Rights. The right to information guarantees the right ofthe people to demand information, while Section 2 recognizes the ive i a sens Indubitably, the effectivity of the policy of public diselosure weed not await the passing of a statute As Congress cannot revoke this principle, it s merely directed to provide for “reasonable safeguard: ‘the complete ahd effective exercise of the right to information necessitaes that its complemenary provision n public diselosure derive the same self-executory sature, Siace both provisions go hand-in- ‘hand, itis absurd to say that the broader right to information on matters of public concem és already enforceable while the correlative duty of the Stato to disclose its transactions involving public interest is tot enforceable until there is sh enabling law, Respondents cannot thus point to the absence of an implsmenting fegislarion as an excuse in not effecting such policy.” 19 Section 2, Article ¥ of the Constitution provides in part as follows! “The Congress shall provide a system for securing the seerecy and sanctity of the ballot. Sections 195, 196, 207 and 261(a-5, 7 & 16) of Batas Pambansa Big, £81 as amended which provides in part as follow: 8 Section 2, Article V on Suffrage ofthe 1987 Constitution and Sections 195, 196, 207 and 261 (2-5, ? & 16} of Omnibus Election Code (Batas Pambansa Bly. 881) as amended, because the anonymity of the voter is retained throughout the process of disclosure and only the counting of votes assume significance, as ruled in the case of ABS-CBN vs. Cometec™ welving exit polls. “See, 195, Manner of preparing the ballot. - The voter, upon receiving his folded ballot, shall forthovith proved to one of the empty voting booths and shall there fill his ballot by writing in the proper space foreach office the name of the individual candidate for whom he desires to Vote. “"No voter shal be allowed to enter u booth occupied by another, nor enter the same accompanied by somebody, except as provided for ia the succeeding section hersaf, nor say therein for «longer time than necessary, nor speak with anyone other than as herein provided while inside the polling place. Tt shall be unlasful to prepare the ballot outside the voting boath, orto exibie ls coments to any perso, tr to erase azy printing from the ballot, orto intentionally teur oF deface the same or put thereon any ‘stinguishing mark. 1t shall kewise he unlawful ase Carbon paper, paraffin paper, ot ether means for making a copy of the contents of the ballot of take use of any other means to Kentify the vote of the voter, “See. 196, Preparation af ballots for illiterate and disabled persons. = A voter who is illiterate or physically unable te prepare the ballot by himself may be assisted in the preparation of his ballot by: a relative, by affinity or consanguinity within the fourth civil degree or if he has none, by any person of his confidence who belong to the same household ar any member of the board of election inspectors, except the two party members: Provided, Tint no-voter shall be allowed to vote as iliteraxe oF physically disabled unless itis so indicated in his registration record: Provided, further, That in no case shall an assistor assist more than three times except the non-party members of the board of election. inspectors. The person thus chosen shall prepare the ballot for the illiterate or disabled voter inside the ating booth. The person assisting shall bind himself in a formal document under oath to fil aut the ballot strictly in accordance with the instructions of the voter and not to reveal the contents of the ballot [prepared by him. Violation of this provision shall constitute an election offense, “See. 261. Probibited Acts, - The following shall be guilty ofan election offense... (z) On voeing. (5) ‘Any person who avails himself of uny means of scheme to discover the contents of the ballot of a voter who is preparing or casting his vote er who has just voted..(7) Any person who places under usrest or detains a voter without Iawfil cause, or molests vm in stich mannes as to obstruct or prevent him from going to the polling place to cast his vote or srom returning home after casting his vote, ar to ‘compel hits to reveal how he voted... (16) Any person who reveals the contents of the ballot of an illiterate or disabled voter whom he assisted in preparing a ballot.” 20-G.R. No. 133486, 28 Jarmary 2000. The decision reads in part as follows: “The contention of public respondent that exit polls iodirectly transgress the sanctiey and the secrecy af the ballot is off-tangent to the real issue, Petitioner does not seek access to the ballots cast by the ‘voters. The ballot system of voting is net at issae here, “The reason bind the prsciple of ballot secrecy is avoid vote buying through voter ideneification. This, voters ate prohibited from exhibiting the contoms of thei oii ballot Io other ‘etsons, from making copies thereof. or from posting dstingushing marks dheeeon to as tobe identified. Also proscribed i finding out the contents of the ballots cast by particular voters cx disclosing those of Asablod or ilerate voters who have been assisted. Clearly, whist forbidden isthe ascorlatiem of voters -ith their respective vates, fr the purpose of assiing thai the wotes have been cas n accordance withthe instructions ofa third party. This result cannot, however, be achieved merely through the voters! verbal esd

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