TanDem vs Comelec. Memorandum.16May2012

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

TANGGULANG DEMOKRASYA(TAN DEM), Inc., EVELYN L. KILAYKO, TERESITA D. BALTAZAR,PILAR L. CALDERON andELITA T. MONTILLA,Petitioners,

GR SP No. 201413--versus— For: Certiorari, Prohibition & Mandamus

COMMISSION ON ELECTIONS And SMARTMATIC-TIM Corporation,Respondents.x-------------------------------------------------x

MEMORANDUM

1. Petitioners, through counsel , respectfully submiti their Memorandum to nullify the

procurement and prohibit the Commission on Elections (COMELEC) from purchasing listed hardware

and software licenses from Smartmatic-TIM on the following grounds:

I. THE DEED OF SALE DATED 30 MARCH 2012 FOR THE PURCHASE OF LISTED GOODS, IS ILLEGAL AND THERFORE NULL AND VOID, BECAUSE IT WAS EXECUTED PURSUANT TO AN EXPIRED AND THUS NON-EXISTENT OPTION TO PURCHASE, DISREGARDING THE MANDATORY REQUIREMENT OF PUBLIC BIDDING FOR GOVERNMENT PROCUREMENT CONTRACTS. R.A. 9184, Secs. 10, 48-54. GPPB-DBM Opinion dated 28 March 2012.

II. THE PCOS BASED AES OF SMARTMATIC-TIM HAS ADMITTEDLY FAILED THE REQUISITE MINIMUM ACCURACY RATE OF 99.995% BY REGISTERING AN AVERAGE OF ONLY 99.6% DURING THE MAY 2010 ELECTIONS. TWG-RMA Report dated 20 July 2010. The Technical Specifications of the Invitation to Bid (2009). The Request for Proposal with Evaluation Criteria dated 11 March 2009. Comelec Bid Bulletin No. 10, dated 27 April 2009.

III. THE PCOS BASED AES OF SMARTMATIC-TIM OPERATED WITHOUT THE FUNCTIONAL DIGITAL SIGNATURES REQUIRED BY LAW DURING THE MAY 2010 ELECTIONS. Sec. 22, Par. 6 of R.A. No. 8436, as amended by R.A. No. 9369.

IV. THE PCOS BASED AES OF SMARTMATIC-TIM HAS BEEN RECORDED TO BE VULNERABLE TO HACKING AS DOCUMENTED IN THE PROVINCE OF BILIRAN DURING THE MAY 2010 ELECTIONS.

STATEMENT OF THE CASE

2. This is a Petition for Certiorari, Prohibition and Mandamus to nullify the procurement and

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prohibit the COMELEC from purchasing the listed hardware and software licenses from Smartmatic-

TIM, for lack of jurisdiction, in excess of jurisdiction and grave abuse of discretion.

2.1. The legal standing of the Petitioners is discussed in Supplement “A”.

STATEMENT OF THE FACTS

3. The facts which are of judicial noticeii, covered by judicial admissioniii, or proven by

authenticated recordsiv, are as follows:

3.1. On 22 December 1997, Congress enacted Republic Act No. 8436 authorizing and directing

the Commission on Elections to use an automated election system in national and local electoral

exercises.

3.2. On 23 January 2007, Congress enacted Republic Act No. 9369 amending Republic Act No.

8436. Among others, the amending law provided for the following: that “election returns transmitted

electronically” be “digitally signed”;v and that “electronic signature” which include digital signatures

be subject to “appropriate authentication and certification procedures.”vi

3.3. Meanwhile, the Commission on Elections conducted national and local electoral exercises

for the years 1998, 2001, 2004 and 2007 using the manual election system.

3.4. On 15 June 2009, the President issued Executive Order No. 810 designating the National

Computer Center (NCC) under the Commission on Information and Communications Technology

(CICT) to operate Government Certification Authority to “issue certificates (for digital signatures) for

all government transactions to government employees/entities and specific purpose certificates to

private individuals/entities.”vii

3.5. On 10 July 2009, the Commission on Elections entered into a contract with Smartmatic-

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TIM for the “Provision of an Automated Election System for the May 10, 2010 Synchronized National

and Local Elections.”viii The contract involved the provision of a Precinct Count Optical Scan (PCOS)

based Automated Election System (AES) by way of lease with services.ix It also provided for an Option

to Purchase (OTP) listed hardware and license to use and modify software.x The OTP was valid until 31

December 2010.xi

3.6. On 09 September 2009, the Supreme Court rendered its Decision in Roque, et al v.

Comelecxii denying the petition to nullify the said contract between the Commission on Elections and

Smartmatic-TIM, but admonishing the public and private respondents on the proper implementation of

vote-security measures “revolving around the issuance of public and private keys pair to the Board of

Election Inspectors, including the digital signatures.”xiii The Decision reads in part as follows:

“The Court, to be sure, recognizes the importance of the vote-security issue revolving around the issuance of the public and private keys pair to the Board of Election Inspectors, including the digital signatures. The NCC comment on the matter deserves mention, appearing to hew as it does to what appear on the records. The NCC wrote:

“The RFP/TOR used in the recent bidding for the AES to be used in the 2010 elections specifically mandated the use of public key cryptography. However, it was left to the discretion of the bidder to propose an acceptable manner of utilization for approval/acceptance by the Comelec. Nowhere in the RFP/TOR was it indicated that COMELEC would delegate to the winning bidder the full discretion, supervision and control over the manner of PKI [Public Key Infrastructure] utilization.”xiv (emphasis supplied)

3.7. On 29 December 2009, the Commission on Elections approved Resolution No. 8739

instructing ALL the Boards of Election Inspectors (BEI) nationwide to digitally sign the electronic

election returns prior to electronic transmission, as follows:

Section 38. Counting of ballots and transmission of results; Procedure...6. Thereafter, the PCOS shall automatically count the votes. After all the votes have been

counted, the PCOS shall immediately display...c. Require for the digital signature of the members of the BEI. Each member shall

insert his iButton security key intended for the digital signature in the iButton security key receptacle...” (emphasis supplied)

3.8. On 04 March 2010, the Commission on Elections approved Resolution No. 8786 reversing

the previous instructions and instructing instead ALL the Boards of Election Inspectors (BEI)

nationwide NOT to sign the election returns transmitted electronically with their digital signatures, as

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follows:

Section 40. Counting of ballots and transmission of results; Procedure...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” or “NO” option;

h) Press “YES” option. A message shall be displayed “PRINTING 8 COPIES OF NATIONAL RETURNS. PLEASE WAIT.” (emphasis supplied)

3.9. On 30 March 2010, the Commission on Elections approved Resolution No. 8809 providing

General Instructions Governing the Consolidation/Canvass and Transmission of Votes at the

Municipal/City Boards of Canvassers, but without any instruction regarding the delivery of the Public

Keys to the canvassers, nor the manner of their use to authenticate the identity of the sender and

integrity of the message contained in the electronic election returns transmitted electronically from the

PCOS machines.

3.10. On 10 May 2010, the Commission on Elections conducted national and local electoral

exercise using the PCOS based AES provided by Smartmatic-TIM.

3.11. Applying the judicial presumption “regularity in the performance of official duty”xv in

relation to Comelec Resolution No. 8786, it may therefore be presumed that Smartmatic-TIM under the

control and supervision of the Commission on Elections operated the PCOS based AES nationwide

without any functional digital signatures during national and local elections held on 10 May 2010.xvi

This must be so in the absence of any evidence on record proving the contrary.xvii

3.12. On or about election day, in the Province of Biliran, apparent “hacking” incidents were

recorded in official AUDIT LOGS (from the PCOS machine) and PRINT LOGS (from the municipal

server) of the Commission on Elections. At least three (3) modes of apparent “hacking” were

documented: (1) Unauthorized Transmission and Receipt of Electronic Returns from an Unknown

Source; (2) Unauthorized Double Transmission and Receipt of the Same Electronic Returns using

Different IP Addresses; and (3) Unauthorized Double Use of One IP Address for Two Different

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Electronic Returns.

3.13. On 20 July 2010, the Technical Working Grou p on the Random Manual Audit (TWG-

RMA) of the Commission on Elections reported on the actual performance of the PCOS based AES

provided by Smartmatic-TIM, whereby the system registered only an average accuracy rating 99.6%,

thereby failing to comply with the requisite minimum accuracy rating of 99.95%.xviii

3.14. On 21 March 2012, the Commission on Elections approved Resolution No. 9376

purporting to authorize the exercise of the expired OTP for listed hardware and software license.xix On

29 March 2012, the Commission on Elections approved Resolution No. 9377 further purporting to

authorize the acceptance of the offer of Smartmatic-TIM to reinstate and extend the expired OTP until

31 March 2012.xx On 30 March 2012, the Commission on Elections approved Resolution No. 9378

finally purporting to approve the Deed of Sale for the purchase of listed hardware and software license,

pursuant to the expired OTP, and without the conduct of any competitive bidding.xxi

3.15. On 30 March 2012, the Commission on Elections and Smartmatic-TIM executed the Deed

of Sale for the sale and purchase of listed hardware and software license, pursuant to the expired OTP.

The sale and purchase was executed despite the absence of circumstances that may justify an exception

from the rule on competitive bidding.xxii

STATEMENT OF ISSUES

4. The issues are as follows:

4.1. Whether or not the COMELEC committed grave abuse of discretion in executing with

Smartmatic-TIM a Deed of Sale for listed hardware and software licenses, pursuant to an expired

option to purchase and without conducting competitive bidding.

4.2. Whether or not the COMELEC committed grave abuse of discretion in executing with

Smartmatic-TIM a Deed of Sale for listed hardware and software licenses, notwithstanding proof of

material defects in the functionality and security of the PCOS based AES.

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ARGUMENTS

I. THE DEED OF SALE DATED 30 MARCH 2012 FOR THE PURCHASE OF LISTED GOODS, IS ILLEGAL AND THERFORE NULL AND VOID, BECAUSE IT WAS EXECUTED PURSUANT TO AN EXPIRED AND THUS NON-EXISTENT OPTION TO PURCHASE, DISREGARDING THE MANDATORY REQUIREMENT OF PUBLIC BIDDING FOR GOVERNMENT PROCUREMENT CONTRACTS. R.A. 9184, Secs. 10, 48-54. GPPB-DBM Opinion dated 28 March 2012.

5. The “Contract for the Provision of an Automated Election System for the May 10, 2010

Synchronized National and Local Elections” dated 10 July 2009 contained an Option to Purchase

(OTP).xxiii The OTP was valid until 31 December 2010.xxiv

5.1. COMELEC however did not exercise its OTP during the stipulated term of effectivity until

31 December 2010. Accordingly, on 01 January 2011 or immediately after lapse of the OTP, there was

no more option to be exercised.

5.2. By operation of law, Republic Act No. 9184 also known as the Government Procurement

Reform Act automatically set in to govern the procurement activities of COMELEC immediately upon

the lapse of the OTP. As the cited law provides, “(all) procurement shall (thereupon) be done through

Competitive Bidding, except as provided for in Article XVI of this Act.”xxv

5.3. The exceptions stated in the law pertain to Limited Source Bidding, Direct Contracting,

Repeat Order, Shopping and Negotiated Procurement.xxvi In the absence of any showing that the

conditions sine qua non for resort to any of the allowable exceptions are present in the questioned

procurement, then it necessarily follows that the general rule mandating competitive bidding applies.

5.4. While SMARTMATIC-TIM offered to extend the OTP on 18 December 2010, COMELEC

did not accept the offer during the period of validity of the original OTP until 31 December 2010. Thus,

assuming without conceding that COMELEC and SMARTMATIC-TIM had the unlimited freedom of

contract to extend the OTP by themselves, they in fact failed to do so during the stipulated period.

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Thus, the OTP automatically expired as of 01 January 2011.

5.5. In any case, it is important to note that the questioned procurement is NOT a purely private

contract between private parties. It is unquestionably a government procurement contract imbued with

public interest and governed by R.A. No. 9184. Thus, any attempt by the parties to amend the original

Contract to extend the OTP and thereby evade the mandatory requirement for competitive bidding, is of

doubtful legality. This issue of legality is however no longer material here, because the parties have in

fact failed to extend the OTP during the effectivity of the contractual stipulation until 31 December

2010.

5.6. Notably, the Government Procurement Policy Board issued a letter opinion dated 28 March

2012 stating that the questioned procurement by COMELEC must be through public bidding because

the OTP has already lapsed. A certified copy of the letter opinion is attached as Appendix “A”. The

letter opinion reads in part as follows:

“The contractual relation between COMELEC and Smartmatic-TIM, specifically on the exercise by the former of the OTP (Option to Purchase) is deemed automatically terminated upon expiration of the option on 31 December 2010. When the option to purchase expired on 31 December 2010, there is nothing more to extend thereafter because the existing “offer that served as basis of the option to purchase had already ceased to exist, particularly, when COMELEC did not accept the unilateral and voluntary extension made by Smartmatic-TIM on 18 December (2010). Consequently, the subsequent extensions have no leg to stand on, so to speak, as the original “offer”, that is, the offer for COMELEC to exercise the option to purchase, was already non-existent. Concomitantly, the succeeding offers made by Smartmatic-TIM proposing to extend the option to purchase until 31 December 2011 are regarded as “new” offers that need to comply with existing laws, rules and regulations on government contracting before it may be accepted legally...xxvii

“All told, considering that the original OTP has already expired, all juridical relations between the parties as regards the OTP are legally severed. Hence, the Revised and Extended OTP of Smartmatic-TIM, including all related, incidental and collateral consequences, being in the nature of a new offer, may only be accepted pursuant to RA 9184 and its IRR. Pointedly, COMELEC must utilize “competitive bidding” as the primary mode of procurement in the acquisition/lease of the PCOS and CCS and other related election materials, paraphernalia and equipment for the 2013 Elections, unless in highly exceptional, valid and justifiable circumstances, alongside the principles of efficiency and economy, any of the alternative methods of procurement, such as, Limited Source Bidding, Direct Contracting, Repeat Order, or Negotiated Procurement is available for use.”xxviii

II. THE PCOS BASED AES OF SMARTMATIC-TIM HAS ADMITTEDLY FAILED THE REQUISITE MINIMUM ACCURACY RATE OF 99.995% BY REGISTERING AN AVERAGE OF

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ONLY 99.6% DURING THE MAY 2010 ELECTIONS. TWG-RMA Report dated 20 July 2010. The Technical Specifications of the Invitation to Bid (2009). The Request for Proposal with Evaluation Criteria dated 11 March 2009. Comelec Bid Bulletin No. 10, dated 27 April 2009.

6. The Technical Specificationsxxix, Evaluation Criteriaxxx and Bid Bulletin for the PCOS based

AESxxxi, all issued by Respondent Comelec, are consistent in saying that the system MUST have a

minimum accuracy rating of 99.995%. This means that out of 20,000 marks, the system is

ALLOWED to misread only 1 mark, on order to be acceptable. The Comelec issuances read as

follows:

COMELEC DOCUMENT CONTENTCOMELEC INVITATION TO BID, 2009Section VII, Technical Specifications

COMPONENT 1PAPER-BASED AUTOMATED ELECTION SYSTEM (AES)

Component 1-BPrecinct-Count Optical Scan (PCOS)

A print-out/photocopy of the excerpt is attached as Annex “A”.

SPECIFICATIONS

xxx

10. The system shall count the voter's vote as marked on the ballot with an accuracy rating of at least 99.995%. (emphasis supplied)

xxx

COMELEC REQUEST FOR PROPOSAL, 11 March 2009

2010 ELECTIONS AUTOMATION PROJECT

VIII. EVALUATION CRITERIA

A. Systems Evaluation Checklist

A print-out/photocopy of the excerpt is attached as Annex “B”.

REQUIREMENT

xxx

10 Does the system count the voter's vote as marked on the ballot with an accuracy rating of at least 99.995%? (emphasis supplied)

xxx

COMELEC SPECIAL BIDS AND AWARDS COMMITTEE

BID BULLETIN NO. 1027 April 2009 Public Bidding2010 Elections Automation Project

Pages 3-4

A photocopy is attached is Annex “C”.

Question/Issue

In total, how many ballots should the vendor provide for each precinct in the technical evaluation, and should these ballots be blank, or should they be voted in any particular pattern?

Answer/Clarification

For the demo system, the bidder shall provide the number of ballots needed to show 20,000 marks. Please take note that the “at least

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99.995%” accuracy rating will be evaluated as 1 error from 20,000 marks. In addition, the bidder must provide 1,100 blank ballots. Except for the 1,100 blank ballots, the ballots for the demo system following the Demo Model shall be pre-accomplished manually by the bidder prior to the conduct of the Systems Evaluation. (emphasis supplied)

6.1. In the actual implementation of the PCOS based AES however, the COMELEC Report of

the Technical Working Group – Random Manual Audit (TWG-RMA) dated 20 July 2010 clearly and

unmistakably states that “(o)n the average, accuracy rate at the national level for all positions was at

99.60 percent.”xxxii This means that out of 20,000 marks, the system IN FACT misread 80 marks. A

photocopy of the TWG-RMA Report is attached as Appendix “B.”xxxiii

6.2. The RMA covered 1,145 sample clustered precincts from out of 76,347 total clustered

precinctsxxxiv. The sample size is about 1.5% of the total number of clustered precinctsxxxv, where

540,942 persons voted using the PCOS based AESxxxvi.

6.3. Under the premises, it is clear and unmistakable that per the official report prepared by the

Respondent Comelec's own TWG-RMA, the PCOS based AES admittedly failed the mandated

minimum accuracy rating as follows:

Automated Election System (AES)

Mandated Minimum Accuracy Rating

Actual Accuracy Rating

Remarks (Pass or Fail)

Precinct Count Optical Scan (PCOS) based AES

Minimum accuracy rating of at least 99.995%.

Maximum error of 1 ballot misread out of 20,000 ballots, or allowable variance of 0.005%.

Actual average accuracy rating of 99.6%

Actual error of 80 ballots misread out of 20,000 ballots, disallowable variance of 0.4%.

FAILED

6.4. The argument based on the allowable margin of “variance” of 1% used for purposes of

statistical analysis1, is certainly NOT the 0.005% allowable margin of variance used for purposes of 1 Id, Pages 20-21.

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technical specifications. The 99% accuracy rating for statistical analysis is definitely NOT a substitute

for the 99.995% accuracy rating for computer functionality. This argument is absolutely false, deceitful

and misleading. It is like comparing apples with oranges.

6.5. The TWG-RMA Report itself concedes this critical distinction between statistical variance

and machine error as follows:

“(The) margin of variance is a computation of the difference between the manual count and the machine count. Hence, it is a test between man and machine. While the tolerance level set for the accuracy of the machines is a test that involves only the machines. The margin of variance indicated by the NSO as equivalent to 1% based on the accuracy rate of 99% (the allowable rate used in statistical analysis) cannot thus be used as the basis of comparison to the 99.995% accuracy rate of the PCOS machine set by the Request for Proposals (RFP) as a requirement for the Bidding Process of the AES Technology.”xxxvii (emphasis supplied)

6.6. Information Technology (IT) Professional Roberto Verzola explains simply how computers

are tested for accuracy rate as follows:

“News reports say the PPCRV has received 70,255 and encoded 43,035 election returns ERs). Out of these, they found 29 discrepancies, or an average of one in 1,484 ERs (.07% error rate). PPCRV chair Henrietta de Villa was quoted saying, “We can say that the election is clean because the discrepancy is very minimal.

“Unfortunately, computers are not evaluated that way. If your spreadsheet program makes one error for every 1,484 cells, junk it at once, because it is useless! If your wordprocessor changes one of every 1,484 characters it processes, junk it too.

“While the analog side of an automated system (such as the scanning of marks) may introduce errors, we expect from the digital side zero error. Even a single error in a million characters or operations is a cause for worry, because it suggests a bug (a problem) in the machine’s logic. When testing software, testers assume that if you find one bug, more hidden bugs must exist. Unless that bug is found and properly evaluated, we can’t say if the problems it can cause are minor or major. All we know is, something is wrong with the software.

“Unless the 29 discrepancies have been traced to the particular portion of Smartmatic software that caused them, and other portions of the software have been searched for similar bugs, it it premature to declare the election “clean”...”xxxviii

6.7. Considering that the PCOS based AES of Smartmatic-TIM has admittedly failed the

minimum accuracy rate, why should Respondent Comelec even consider buying this failed system?

III. THE PCOS BASED AES OF SMARTMATIC-TIM OPERATED WITHOUT THE FUNCTIONAL DIGITAL SIGNATURES REQUIRED BY LAW DURING THE MAY 2010 ELECTIONS. Sec. 22, Par. 6 of R.A. No. 8436, as amended by R.A. No. 9369.

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“Digital signature” refers to a “person” not a machine

7. An “electronic signature” is a “distinctive mark, characteristic and/or sound” that

“(represents) the identity of a person”, and is attached to an “electronic document.”xxxix

7.1. A person is the subject of legal relations that may acquire rights or incur obligations.xl A

person is either a natural or juridical person.xli

7.2. An “electronic document” refers to information written in electronic form that establishes a

right, extinguishes an obligation or proves a fact.xlii

7.3. A “digital signature” is a type of “electronic signature” that uses an asymmetric

cryptosystem.xliii An “asymmetric cryptosystem” is a system that generates a key pair, consisting of a

private key to create a digital signature, and a public key to verify the digital signature.xliv

7.4. A “digitally signed” document refers to an “electronic document” that bears a “digital

signature.”xlv

7.5. Notably, the statutory laws, implementing rules and regulations and judicial rules of

evidence define a “digital signature” as the SIGNATURE OF A PERSON.xlvi There is no law or rule

whatsoever that defines a “digital signature” as the signature of a property.

7.6. Under the premises, it necessarily follows that the view expressed by Smartmatic

International Corporation and adopted by the COMELEC that the “machine signature” of a precinct

count optical scan (PCOS) machine may be the functional equivalent of the “digital signature”, is

manifestly CONTRARY TO LAW.xlvii As distinguished from a person, property such as a PCOS

machine cannot be the subject of legal relations because it can neither acquire rights nor incur

obligations.xlviii Property can only be the object of legal relations, that may be owned by a person.xlix

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“Electronic election returns” must be “digitally signed”

7.7. Under the old election law that employed the manual counting of votes, the members of the

board of election inspectors are enjoined to sign or affix their signatures to the election returns, under

pain of criminal sanction if they fail to do so.l

7.8. Under the present election law that employs the automated counting of votes, the members

of the board of election inspectors are similarly enjoined to sign or affix their signatures to the printed

electronic election returns, likewise under pain of criminal sanction if they fail to do so.li

7.9. Consistent with the provisions above, the present election law also mandates that the

“election returns transmitted electronically” must be “digitally signed” in order to be “considered as

official election results” and “used as the basis for the canvassing of votes and the proclamation of a

candidate.”lii

7.10. Be necessary implication, “election returns transmitted electronically” but NOT “digitally

signed” CANNOT be “considered as official election results”, NOR “used as the basis for the

canvassing of votes and the proclamation of a candidate.”liii

7.11. The nullity of “electronic election returns” without “digital signatures” is apart from the

criminal sanctions imposed on the members of the board of election inspectors who utilize without

authorization or otherwise transmit electronically “election returns” that are not “digitally signed.”liv

Electronic election returns NOT digitally signed

7.12. Under the premises, the Honorable Court may take judicial notice of Sec. 40(f), (g) and

(h) of Comelec Resolution No. 8786 dated 04 March 2010, directing all the Boards of Election

Inspectors nationwide NOT to sign the transmission of the electronic election returns with their

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respective BEI digital signature keys.

7.13. Applying the judicial presumption “(that) official duty has been regularly performed”lv to

the cited Comelec Resolution No. 8786, it necessarily follows that the PCOS based AES provided by

Smartmatic-TIM was IN FACT operated nationwide without functional digital signatures during 10

May 2010 national and local elections.lvi This must be so in the absence of any evidence on record

proving the contrary.lvii

7.14. Considering that the PCOS based AES of Smartmatic-TIM is judicially presumed to have

been operated nationwide without the functional digital signatures required by automated election law,

why should Respondent Comelec even consider buying this grossly deficient system?

Rebuttal statement

7.15. During the oral arguments, respondent Smartmatic-TIM alleged as a matter of fact that the

iButtons of the BEI contained the Private Keys issued by COMELEC to create digital signatures, and

that by using the said iButtons and entering their PINs, the BEI purportedly caused the signing of their

digital signatures on the electronic election returns prior to electronic transmission.

7.16. Petitioners disagree. The allegation is false, baseless and misleading.

7.17. Firstly, there is no showing or allegation whatsoever that either COMELEC or

Smartmatic-TIM is accredited with the National Computer Center (NCC) as Certification Authority

(CA) that may issue certificates for digital signatures. Notably, the NCC is the designated Root CAlviii

and Government CAlix under Executive Order No. 810 dated 15 June 2009.

7.18. Secondly, respondents themselves established the procedures that deliberately disabled the

signing of digital signatures on the electronic election returns prior to their electronic transmission via

the PCOS machines.

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7.19. Under the original scheme established by respondents under Comelec Resolution No.

8739, there were apparently two (2) different types of “electronic keys”lx, also referred to as “security

keys” and more commonly known as iButtons. The first type was intended to “OPEN” and “CLOSE”

the PCOS machine.lxi The second type was intended to sign digital signatures on the electronic election

returns prior to electronic transmission.lxii For added security, both types of security keys were matched

with passwords also known as Personal Identification Numbers (PIN).lxiii

7.20. However, under the revised scheme set by respondents under Comelec Resolution No.

8786, the second type of iButtons for signing digital signatures was OMITTEDlxiv, and only the first

type of iButtons to “OPEN” and “CLOSE” the PCOS machine was RETAINEDlxv.

7.21. A comparison of the Comelec Resolutions establishing the original and revised schemes

and listing the different types of security keys deliverable to the BEI follows:

Comelec Resolution No. 8739 Comelec Resolution No. 8786

Section 33. Preliminaries to the voting. – The BEI shall meet at the polling place at six o’clock in the morning of Election Day and do the following:

a) Ensure that it has all the election forms, documents and supplies needed including:

1) one (1) Button security key for the chairman of the BEI for the use in operating the PCOS; and

2) iButton security key and Personal Identification Number (PIN) for each member of the BEI for use to digitally sign the ERs before transmission.

iButtons will be found in the thermal printer compartment and the PINs will be in a separate envelopes found inside the PCOS box...

2. Before the voting begins; The chairman

Section 34. Preliminaries to the voting. - The BEI shall meet at the polling place at six o'clock in the morning of Election Day and ensure that the PCOS box and the ballot box are inside the poling place... (As Revised)

b) Show to the public and the watchers present that the; (As Revised)

i. PCOS box is sealed...

c) Remove the sticker seal of the PCOS box; (As Revised)

d) Open the PCOS box; (As Revised)

e) Check whether the following are inside the PCOS box: (As Revised)

i. Checklist of contents of the box;

ii. PCOS machine;

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of the BEI shall:

a. Show to the public and the watchers present that the:

i. PCOS box is sealed; BEI members and watchers shall check if the serial number of the seal used in the PCOS box is the same as the serial recorded during the testing and sealing...

c. Remove the seal of the PCOS box, retrieve the PCOS from the box and show that the seals of the printer cover, main memory card slot and back-up memory card slot of the PCOS are intact. Record in the Minutes such fact and thereafter break the seal of the printer cover. The Main memory card slot and back-up memory card slot shall remain sealed during the voting.

iii. Power cord of the PCOS;

iv. One (1) envelope containing spare iButton;

v. Three (3) rolls of official thermal paper;

vi. Three (3) PINs of the BEI;

vii. One (1) PIN for re-zeroing which shall remain in the PCOS box;

viii. Modem, if any*

ix. Two (2) copies of the Minutes

* There shall be at least one (1) Modem in every polling center.

NOTE: The iButton security key for use to digitally sign the electronic Election Returns listed in Comelec Resolution No. 8739 has been delisted in Comelec Resolution No. 8786.

7.22. Notably, in public demonstrations conducted by Smartmatic-TIM to show how its PCOS

based AES works, they only show the first type of iButton used to “OPEN” and “CLOSE” the PCOS

machines. They do not show the second type of iButton used to digitally sign the electronic Election

Returns. Sample public demonstrations to MediaNationlxvi and Yahoo! Southeast Asialxvii may be viewed

from the following YouTube links:

http://www.youtube.com/watch?v=0jHaxRTp_ww

http://www.youtube.com/watch?v=g7HUUqPi8VU&feature=related

7.23. The delisting of the iButton security key for use to digitally sign the Electronic Election

Returns explains why the instructions to use this type of key in the original resolution, was

subsequently deleted in the revised resolution. A comparison of the Comelec Resolutions setting the

original and revised instructions for the use and non-use of the digital signatures follows:

Comelec Resolution No. 8739 Comelec Resolution No. 8786

Section 38. Counting of ballots and Section 40. Counting of ballots and

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transmission of results; Procedure...

6. Thereafter, the PCOS shall automatically count the votes. After all the votes have been counted, the PCOS shall immediately display...

c. Require for the digital signature of the members of the BEI. Each member shall insert his iButton security key intended for the digital signature in the iButton security key receptacle...” (emphasis supplied)

transmission of results; Procedure...

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” or “NO” option;

h) Press “YES” option. A message shall be displayed “PRINTING 8 COPIES OF NATIONAL RETURNS. PLEASE WAIT.” (emphasis supplied)

7.24. The delisting also explains why there are no corresponding instructions to the municipal

and city boards of canvassers regarding the delivery of their corresponding Public Keys, as well as their

use to authenticate the identity of the sender and integrity of the message contained in the electronic

election returns transmitted electronically from the clustered precincts using the PCOS machine. The

General Instructions to the Municipal and City Boards of Canvassers are contained in Comelec

Resolution No. 8809 dated 30 March 2010.

7.25. To impute responsibility only on COMELEC but not on Smartmatic-TIM for the actual

absence of digital signature functionality and thereby claim that there is nothing wrong with the

machine itself cannot simply be believed. This is because under their contract, Smartmatic-TIM was

not only responsible for Project Managementlxviii, its joint venture partner Smartmatic was also placed

in charge of all the technical aspects of the PCOS based AES. Thus, Smartmatic-TIM cannot feign

ignorance or innocence of the technical anomaly where the PCOS based AES was IN FACT operated

without functional digital signatures during the 10 May 2010 elections.

IV. THE PCOS BASED AES OF SMARTMATIC-TIM HAS BEEN RECORDED TO BE VULNERABLE TO HACKING AS DOCUMENTED IN THE PROVINCE OF BILIRAN DURING THE MAY 2010 ELECTIONS.

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Prefatory Statement

8. During the oral arguments, some concern was raised that the electoral contest for District

Representative of Biliran Province was sub judice before the House of Representatives Electoral

Tribunal (HRET), and therefore it was inappropriate to discuss this matter. In this regard, Petitioners

respectfully manifest that the pending electoral contest before HRET does not in any manner involve

any issue about electronic hacking. Accordingly, Petitioners respectfully submit that discussions here

about electronic hacking in Biliran will not violate the rule on sub judice.

Preliminary Statement

8.1. The various technical terms used in the PCOS based AES provided by Smartmatic-TIM

may be defined as follows:

8.1.1. An Audit Log is the record of all the transactions processed by a particular Precinct Count

Optical Scan computerized voting machine (referred to herein as PCOS), from the date of testing and

sealing up to the close of the elections of 10 May 2010. The transactions here are entered in

progression or otherwise recorded forward, with details of the date, time and description of the event.

8.1.2. A Print Log is the record of last 1000 transactions processed by the computer server of a

Municipal Board of Canvassers. The transactions here are entered in regression or otherwise recorded

backward, where the 1st entry is the latest transaction, while the 1000th entry is the earliest transaction.

8.1.3. An Internet Protocol address (referred to herein as IP) is a numerical label assigned to a

particular clustered precinct PCOS or a particular Municipal server participating in the computer

network of the AES that uses the Internet Protocol for communication. See

http://en.wikipedia.org/wiki/IP_address. The IP address serves 2 principal functions: host identification

and location addressing. http://en.wikipedia.org/wiki/IP_address.

17

8.1.4. A Tally Number is the tally of votes for a particular elective position in a particular CP

manned by a particular BEI. The Tally Number is comprised of 14 digits which are divided in 2 equal

parts, where the first 7 digits indicate the CP number, while the last 7 digits indicate the elective

position. The elective positions are as follows: municipal sanggunian, vice-mayor, mayor, provincial

sanggunian, vice-governor, governor, district representative, party-list representative, senator, vice-

president and president.

Hacking Mode 1: Unauthorized Transmission and Receipt of Electronic Returns from an Unknown Source

8.2. During election day on 10 May 2010, the BEI of clustered precinct CP 7805002 in

Barangay Bacolod, Culaba Municipality, Biliran Province, closed the poll at 19:21:05 under Entry No.

392 of the Audit Log.

8.2.1. The PCOS machine then generated the EML Data results file at 19:38:36 under Entry No.

407. Notably, the BEI did not use their digital signatures to authenticate the results at 19:38:48 under

Entry No. 408. This is apparently in implementation of Subsection 40(f), (g) and (h) of Comelec

Resolution No. 8786 which ordered all the BEI nationwide not to use their digital signatures.lxix

8.2.2. Thereafter, the PCOS machine repeatedly attempted but also repeatedly failed to

transmit the EML Data results file to the MBOC server of Culaba Municipality, the Comelec central

server and the KBP citizens' arm server. The several unsuccessful transmissions were recorded under

Entry Nos. 411, 412, 413, 414, 417, 418, 419, 420, 423, 424, 426, 430, 432, 433, 437, 438, 439 and

440. The failed transmissions were recorded as “0 successful transmissions for 3 servers” under

Entry No. 442.

8.2.3. After printing 1 copy of the Audit Log tape at 20:36:48 under Entry No. 457, the BEI

closed the PCOS machine at 20:39:01 of 10 May 2010.

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8.2.4. Attached as Annexes “A-1” to “A-4” are photocopies of excerpts of the Audit Log for

Clustered Precinct No. 7805002-0006A, PCOS ID No. 7805002, Barangay Bacolod, Culaba

Municipality, Biliran Province.

8.3. However, notwithstanding the manifest record of failed PCOS transmissions for CP

7805002, the municipal computer server of Culaba Municipality apparently received a transmission

sent via IP address 10.12.3.143 purportedly for CP 7805002. The transmission was received at 23:23:23

of 10 May 2010 under Entry No. 808 of the Print Log. Notably, the time of receipt by the municipal

server was about 3 hours AFTER the PCOS machine for CP 7805002 was closed by the BEI.

8.3.1. Upon receipt of the transmission, the EML Data was successfully imported and

successfully processed under Entry Nos. 807 to 795 (read backwards). Notably, the first 7 digits of the

Tally Number was 7805002 indicating that it was for clustered precinct CP 7805002. This is the same

clustered precinct where the BEI closed the PCOS machine without any successful transmission.

8.3.2. Strangely, the computer server of Culaba Municipality received a second transmission of

the same EML Data sent via the same IP address at 23:48:08 of 10 May 2010. The second transmission

was however recognized as identical to the first transmission under Entry Nos. 792 to 779 (read

backwards).

8.3.3. Attached as Annexes “B-1” to “B-4” are photocopies of excerpts of the Print Log for the

computer server of Culaba Municipality, Biliran Province.

8.4. Thus, the Audit Log taken in relation to the Print Log clearly show that there was apparent

unauthorized transmission and receipt of electronic returns for clustered precinct CP 7805002 from an

“unknown source”, because the sole authorized PCOS machine for this particular clustered precinct had

been closed without any successful transmission.

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8.5. Considering that all electronic returns bear no digital signature, by virtue of the cited

Comelec Resolution No. 8786, the authentication of the identity of the sender and integrity of the EML

Data electronically transmitted, is systematically hampered.

Hacking Mode 2: Unauthorized Double Transmission and Receipt of the Same Electronic Returns using Different IP Addresses

8.6. On election day of 10 May 2010 through the next day 11 May 2011, electronic returns from

seven (7) clustered precincts of the Municipalities of Culaba and Caibiran, were received twice by the

respective municipal servers via transmissions through different IP addresses. The clustered precincts

from Culaba Municipality are as follows: CP 7805006, CP 7805008, CP 7805011, CP 7805012, CP

7805017 and CP 7805018. The clustered precinct from Caibiran Municipality is CP 7804011.

8.6.1. The details of the double transmission and receipt of the same electronic returns using

different IP addresses are as follows:

CLUSTERED PRECINCT,

BARANGAY,

MUNICIPALITY

FIRST TRANSMISSION/

RECEIPT

SECOND TRANSMISSION/

RECEIPT

CP 7805006

Barangay Bool West

Culaba Municipality

MBOC Log No. 493

11 May 2010

01:55:36

IP Add: 10.15.2.121

MBOC Log No. 262

11 May 2010

03:41:51

IP Add: 10.15.3.43CP 7805008

Barangay Poblacion

Culaba Municipality

MBOC Log No. 479

11 May 2010

01:57:06

IP Add: 10.11.6.177

MBOC Log No. 324

11 May 2010

02:58:09

IP Add: 10.11.5.201CP 7805011

Barangay Looc

Culaba Municipality

MBOC Log No. 902

10 May 2010

22:31:33

MBOC Log No. 778

10 May 2010

23:51:01

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IP Add:10.11.11.139 IP Add: 10.11.19.202CP 7805012

Barangay Marvel

Culaba Municipality

MBOC Log No. 465

11 May 2010

02:17:25

IP Add:10.11.2.192

MBOC Log No. 248

11 May 2010

03:46:23

IP Add: 10.11.0.117CP 7805017

Barangay Virginia

Culaba Municipality

MBOC Log No. 888

10 May 2010

23:00:03

IP Add: 10.11.19.47

MBOC Log No. 521

11 May 2010

1:21:23

IP Add: 10.11.0.232CP 7805018

Barangay Virginia

Culaba Municipality

MBOC Log No. 916

10 May 2010

21:03:28

IP Add: 10.12.41.14

MBOC Log No. 749

11 May 2010

00:20:25

IP Add: 10.11.13.140CP 7804011

Barangay Cabibihan

Culaba Municipality

MBOC Log No. 712

11 May 2010

05:13:34

IP Add: 10.11.0.180

MBOC Log No. 526

11 May 2010

06:23:18

IP Add: 10.11.1.60

8.6.2. Attached as Annexes “C-1” and “C-2” are Tables of Electronically Transmitted Results

summarizing data for the time and dates of the 1st transmission by the PCOS machines, the time and

dates with IP addresses of the 1st receipt by the municipal server, and the time and dates with different

IP addresses of the 2nd receipt by the municipal server.

8.6.3. Attached as Annexes “D-1” to “D-3”, “E-1” to “E-3”, “F-1” to “F-3”, “G-1” to “G-3”,

“H-1” to “H-3”, “I-1” to “I-4”, are photocopies of excerpts of the Print Log for the computer server of

Culaba Municipality, Biliran Province. Attached as Annexes “J-1” to “J-4” are photocopies of excerpts

of the Print Log for the computer server of Caibiran Municipality, Province of Biliran.

8.7. Thus, the Audit Logs taken in relation to the Print Logs clearly show that there were

apparent unauthorized double transmissions and receipt of the same electronic returns for seven (7)

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clustered precincts: CP 7805006, CP 7805008, CP 7805011, CP 7805012, CP 7805017, CP 7805018,

and CP 7804011, using different IP addresses between the first and second transmissions. Notably, the

electronic voting results are intended for recording only once and not twice.

8.8. Considering again that all electronic returns bear no digital signature, as ironically

instructed by the Comelec En Banc itself under the cited Comelec Resolution No. 8786, the

authentication of the identity of the sender and integrity of the EML Data electronically transmitted and

received twice, is again systematically hampered.

Hacking Mode 3: Unauthorized Double Use of One IP Address for Two Different Electronic Returns

8.9. On 11 May 2010, electronic returns from two (2) different clustered precincts in the

Municipality of Almeria, namely CP 7801001 and CP 7801002, were sequentially received by the

municipal server via transmission through one and the same IP address 10.15.0.157.

8.9.1. The details of the double use of one (1) IP address for two (2) different electronic returns

are as follows:

CLUSTERED PRECINCT,

BARANGAY,

MUNICIPALITY

FIRST

TRANSMISSION/RECEIPT

SECOND

TRANSMISSION/RECEIPT

CP 7801001

Barangay Poblacion

Almeria Municipality

MBOC Log No. 261

11 May 2010

01:06:50

IP Add: 10.15.0.157

NA

CP 7801002

Barangay Poblacion

Almeria Municipality

NA MBOC Log No. 247

11 May 2010

01:23:53

IP Add: 10.15.0.157

22

8.9.2. Attached as Annex “K-1” is a Table of Electronically Transmitted Results summarizing

data for the time and date of the respective transmissions by two (2) different PCOS machines, and the

time and date of the sequential receipt of two (2) different transmissions but using only one (1) and the

same IP address.

8.9.3. Attached as Annexes “L-1” to “L-4” are photocopies of excerpts of the Print Log for the

computer server of Almeria Municipality, Biliran Province.

8.10. Thus, the Audit Logs taken in relation to the Print Logs clearly show that there was

apparent unauthorized double use of one (1) and the same IP address for two (2) different electronic

returns pertaining to two (2) different clustered precincts CP 7801001 and CP 7801002. Notably, each

clustered precinct is assigned a unique IP address under the AES to facilitate host identification and

location addressing.

8.11. Considering again that all electronic returns bear no digital signature, as ironically

instructed by the Comelec En Banc itself under the cited Comelec Resolution No. 8786, the

authentication of the identity of the sender and integrity of the two (2) different EML Data

electronically transmitted and received via one (1) and same IP address, is again systematically

hampered.

Summary Statement

8.12. Under the premises, it is only reasonable to conclude that the absence of functional digital

signatures in the PCOS based AES provided by Smartmatic-TIM during the national and local elections

of 10 May 2010, systematically hampered the authentication of the identities of the senders and

integrity of the electronic election returns, thereby facilitating the apparent hacking of the AES.

8.13. Considering that the PCOS based AES of Smartmatic-TIM has been recorded to have

23

received unrecognized and apparently unauthorized transmissions, why should Respondent Comelec

even consider buying this hackable system?

SUPPLEMENTAL STATEMENT

9. During the oral arguments, respondents argued that the purchase of the PCOS based AES of

Smartmatic-TIM was advantageous to the government if the terms and conditions of the OTP were

compared to the bids of other competitors back in 2009.

9.1. Petitioners disagree. This view is contrary to COMMON SENSE. The only way to

determine whether or not the commercial offer of Smartmatic-TIM is advantageous to the government

is to compare this offer with the competitors right now in 2012. It is simplistic and unrealistic to

assume that the state of technology and commerce back in 2009 remains the same in 2012.

9.2. Notably, a research paper entitled “Buying or Leasing of Election Machines by

COMELEC”lxx by Francis Mark A. Quimba, a Supervising Research Specialist of the Philippine

Institute of Development Studieslxxi, concludes that:

“In terms of buying or leasing equipment, the latter is more viable given several factors. First, the shifting of technology is faster and the possibility of these machines to be outdated or obsolete is greater. Leasing will pass the burden of obsolescence to the leasing company. Second, it reduces the risk of the country having to own electoral machines that do not work as anticipated or expected.”

9.3. Again during the oral arguments, respondents argued that for purposes of the national and

local elections in 2013, there was no more time to conduct new bidding competitive, adopt new

technology and collaborate with a new technology partner.

9.4. Again Petitioners disagree. In preparation for the last automated elections held on 10 May

2010, COMELEC executed with Smartmatic-TIM the Contract for the Provision of an Automated

Election System only on 10 July 2009. Immediately thereafter, the contracting parties had to face a

legal challenge to their contract, which they managed to overcome only on 10 September 2009 in the

24

case of Roque v. Comelec.lxxii In the end, the synchronized local and national elections was still held as

scheduled on 10 May 2010. Thus, experience shows there is still reasonable preparation time left today,

if only COMELEC will stop its fixation on the PCOS based AES of Smartmatic-TIM.

9.5. Finally, during the oral arguments and in their pleadingslxxiii, respondents raised the dark

prospect of reverting to the old practice of “dagdag-bawas”, if COMELEC were constrained to return

back to the manual system of voting due to lack of time or funds.

9.6. Petitioners VEHEMENTLY DISAGREE. If we look back at the way the PCOS based AES

of Smartmatic-TIM actually performed during 10 May 2010 elections, we find no assurance

whatsoever that the old practice of “dagdag-bawas” has not simply evolved into a new form –

“electronic dagdag-bawas.”

9.7. During the proceedings of the National Board of Canvasserslxxiv, the public was bewildered

to see the PCOS based AES of Smartmatic-TIM generate a gross error in the number of registered

voters, reporting 256,733,195 instead of 51,317,073. This incident demonstrated for all to see what

computers can so easily do – multiply figures five-fold.

9.8. If the PCOS based AES of Smartmatic-TIM can actually commit this gross error on a

simple matter like reporting the total number of registered voters, we cannot discount the possibility of

similar gross errors on more complex matters like tallying the total number of votes per candidate.

Notably, neither COMELEC nor Smartmatic-TIM has until today provided the public with a credible

technical report on whether the root cause of the gross error in their PCOS based AES has been

identified, isolated and fixed.

9.9. From the words of the Honorable Solicitor-General, he said that the “real worth” of the

election machines may be tested by its actual performance during the 10 May 2010 synchronized local

and national elections.lxxv

25

9.10. If we adopt this test, where the PCOS based AES of Smartmatic-TIM failed to comply

with the minimum accuracy rate of 99.995%, never operated with functional digital signatures, and

documented to be vulnerable to apparent “hacking”, then Petitioners respectfully submit that this

particular system is actually WORTHLESS.

9.1. For COMELEC to insist on purchasing without competitive bidding the PCOS based AES

of Smartmatic-TIM pursuant to the an expired OTP, and notwithstanding the showing that this

particular system is in fact WORTHLESS, certainly constitutes GRAVE ABUSE OF DISCRETION.

PRAYER

10. On all the foregoing considerations, Petitioners pray that the Honorable Court:

10.1. ANNUL COMELEC Resolution Nos. 9376, 9377 and 9378 promulgated in March 2012

and the Deed of Sale it executed with Smartmatic-TIM on 30 March 2012, and PROHIBIT the

COMELEC and Smartmatic-TIM from implementing the same;

10.2. DECLARE said Resolutions and Deed of Sale as null and void for having been issued

and executed by the COMELEC with grave abuse of discretion, amounting to lack or excess of

jurisdiction, and for violating the provisions of the Government Procurement Reform Act requiring a

public, competitive bidding; and

10.3. GRANT Petitioners such other relief as may be just or equitable under the premises.

Makati City for Manila. 16 May 2012.

26

Yulo and Bello Law OfficesBy:

Jose Ventura AspirasIBP No. 883039 / Makati / 09 January 2012PTR No. 3184513 / Makati / 06 January 2012IBP Roll No. 34390MCLE Compliance No. III-0020015

Mario Bernardo S. CerroIBP No. 894196 / Leyte / 20 March 2012PTR No. 0050296 / Makati / 66 March 2012IBP Roll No. 60376MCLE Exempt

Counsel for Petitioners 4th Floor La Paz CenterSalcedo cor. Rufino StsLegazpi Village, Makati City

Donato Zarate & RodriguezBy:

Demosthenes B. DonatoRoll No. 35872, 27 April 1989IBP No. 873623 / Parañaque / 13 December 2011PTR No. 3173234/ Makati / 02 January 2012MCLE Compliance No. IV-0004651 / 23 Feb. 2012

Amanda Regina G. ReyesRoll No. 55940, 05 May 2008IBP No. 873624 / Parañaque / 13 December 2011PTR No. 3173235 / Makati / 02 January 2012MCLE Compliance No. III-0004715/ 04 Sept. 2009

Joanne P. SalavanteRoll No. 59346PTR No. 3218219-Makati-01/31/12IBP No. 859430-Aklan-03/24/2011MCLE Compliance III exempt pursuant to MCLE Governing Board Order No. 1, s. 2008

Meriam M. MontaRoll No. 61216PTR No. 3285642-Makati-08/30/12IBP No. 892806-Pangasinan-03/07/2012MCLE Compliance III exempt pursuant to MCLE Governing Board Order No. 1, s. 2008

Co-Counsel for Petitioners7/F Electra House115 Esteban St., Legazpi Village,Makati City, Philippines

Copy Furnished:

Commission on ElectionsPalacio del GobernadorPostigo Street, IntramurosManila City

Office of the Solicitor-General134 Amorsolo Street1229 Makati CityCounsel for COMELEC

Angara Abello Concepcion Regala & Cruz22F ACCRALAW TowerSecond Avenue corner 30th Street

27

Crescent Park West, Bonifacio Global City0399 Taguig CityCounsel for Smartmatic-TIM

VERIFICATION

WE, Evelyn L. Kilayko, with residence and postal address at No. 22 Siniguelas Street, Valle Verde, Pasig City; Teresita D. Baltazar, with residence and postal address at Apt. 404, Richbelt Terraces, 19 Annapolis St., Greenhills, San Juan, Metro Manila; Pilar L. Calderon, with residence and postal address at 307 Roberts Street, Pasay City, and Elita T. Montilla, with residence and postal address at 5336 Amorsolo Street, Dasmarinas Village, Makati City, all of legal age, Filipino citizens, under oath, depose and say:

1. We are the Petitioners in the above-captioned case, and with respect to Teresita D. Baltazar, the duly authorized representative of Petitioner Tanggulang Demokrasya (TAN DEM), Inc.;

2. We have caused the preparation and authorized the filing of the foregoing Memorandum;

3. We have read the contents thereof and the allegations therein are true and correct of our own personal knowledge or based on authentic records.

Makati City, Philippines, 16 May 2012.

Evelyn L. Kilayko Teresita D. Baltazar Affiant Affiant

Pilar L. Calderon Elita T. MontillaAffiant Affiant

SUBSCRIBED AND SWORN to before me on __ May 2012 at Makati City, with affiants exhibiting to me their government-issued IDs as follows:

Name ID No. Place/Date of Issue/Validity

Evelyn L. Kilayko TIN: 110-714-417 / Senior Citizen 18073, Pasig, 14 Nov. 2007Teresita D. Baltazar TIN: 106-938-235 / DL NO2-73-023555, 2011-10-01Pilar L. Calderon TIN: 138-588-297 / DL N10-65-027734, 2014-07-29Elita T. Montilla TIN: 121-242-653 / Senior Citizen 327539, Makati, June 1999

Doc. No. ____: Page No. ____: Book No. ____: Series of 2012

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SUPPLEMENT “A”

ARGUMENTS ON LEGAL STANDING

1. The principles governing legal standing are settled.

2. In the case of Francisco v. House of Representatives,2 the Supreme Court ruled as follows:

“Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions…3

“There is, however, a difference between the rule on real-party-in-interest and the rule on standing, for the former is a concept of civil procedure4 while the latter has constitutional underpinnings.5 In view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan, Inc. v. Morato6 to clarify what is meant by locus standi and to distinguish it from real party-in-interest.

“The difference between the rule on standing and real party in interest has been noted by authorities thus: “It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Although all three requirements are directed towards ensuring that only certain parties can maintain an action, standing restrictions require a partial consideration of the merits, as well as broader policy concerns relating to the proper role of the judiciary in certain areas.

“Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence the question in standing is whether such parties have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions…”

“On the other hand, the question as to "real party in interest" is whether he is “the party who would be benefited or injured by the judgment, or the 'party entitled to the avails of the suit…’”7 (Citations omitted)

2 G.R. No. 160261, 10 November 10, 2003.3 IBP v. Zamora, 338 SCRA 81 (2000) citing Joya v. PCGG, 225 SCRA 568 (1993); House International Building Tenants Association, Inc. v. Intermediate Appellate Court, 151 SCRA 703 (1987); Baker v. Carr, supra note 57. 4 Rule 3, Section 2. Parties in interest. — A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.5 JG Summit Holdings, Inc. v. Court of Appeals, 345 SCRA 143, 152 (2000). 6 246 SCRA 540 (1995).7 Id. at 562-564.

29

“When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.8 In fine, when the proceeding involves the assertion of a public right,9 the mere fact that he is a citizen satisfies the requirement of personal interest.

“In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.10 Before he can invoke the power of judicial review, however, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public…11

“While an association has legal personality to represent its members,12 especially when it is composed of substantial taxpayers and the outcome will affect their vital interests,13 the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to clothe it with standing. Its interest is too general. It is shared by other groups and the whole citizenry. However, a reading of the petitions shows that it has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents.14 It, therefore, behooves this Court to relax the rules on standing and to resolve the issues presented by it.

“In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must be sufficiently numerous to fully protect the interests of all concerned15 to enable the court to deal properly with all interests involved in the suit,16 for a judgment in a class suit, whether favorable or unfavorable to the class, is, under the res judicata principle, binding on all members of the class whether or not they were before the court.17 Where it clearly

8 Agan v. PIATCO, G.R. No. 155001, May 5, 2003 citing BAYAN v. Zamora, 342 SCRA 449, 562-563 (2000) and Baker v. Carr, supra note 57; Vide Gonzales v. Narvasa,, 337 SCRA 733 (2000); TELEBAP v. COMELEC, 289 SCRA 337 (1998).9 Chavez v. PCGG, supra note 15.10 Del Mar v. PAGCOR 346 SCRA 485, 501 (2000) citing Kilosbayan, Inc., et.al. v. Morato, supra note 70; Dumlao v. COMELEC, 95 SCRA 392 (1980); Sanidad v. COMELEC, 73 SCRA 333 (1976); Philconsa v. Mathay, 18 SCRA 300 (1966); Pascual v. Secretary of Public Works, 110 Phil 331 (1960); Vide Gonzales v. Narvasa, supra note 77; Pelaez v. Auditor General, 15 SCRA 569 (1965); Philconsa v. Gimenez, 15 SCRA 479 (1965); Iloilo Palay & Corn Planters Association v. Feliciano, 13 SCRA 377 (1965).11 BAYAN v. Zamora, supra note 77 citing Bugnay v. Laron, 176 SCRA 240, 251-252 (1989); Vide Del Mar v. PAGCOR, supra note 79; Gonzales v. Narvasa, supra note 77; TELEBAP v. COMELEC, supra note 77; Kilosbayan, Inc. v. Morato, supra note 70; Joya v. PCGG, supra note 69; Dumlao v. COMELEC, supra note 79; Sanidad v. COMELEC, supra note 79; Philconsa v. Mathay, supra note 79; Pelaez v. Auditor General, supra note 79; Philconsa v. Gimenez, supra note 79; Iloilo Palay & Corn Planters Association v. Feliciano, supra note 79; Pascual v. Sec. of Public Works, supra note 79.12 Chinese Flour Importers Association v. Price Stabilization Board, 89 Phil 439, 461 (1951) citing Gallego et al. vs. Kapisanan Timbulan ng mga Manggagawa, 46 Off. Gaz, 4245.13 Philippine Constitution Association v. Gimenez, supra note 79 citing Gonzales v. Hechanova, 118 Phil. 1065 (1963); Pascual v. Secretary, supra note 79.14 Integrated Bar of the Philippines v. Zamora, 338 SCRA 81 (2000).15 MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines, G.R. No. 135306, January 28, 2003, citing Industrial Generating Co. v. Jenkins 410 SW 2d 658; Los Angeles County Winans, 109 P 640; Weberpals v. Jenny, 133 NE 62.16 Mathay v. Consolidated Bank and Trust Company, 58 SCRA 559, 570-571 (1974), citing Moore's Federal Practice 2d ed., Vol. III, pages 3423-3424; 4 Federal Rules Service, pages 454-455; Johnson, et al., vs. Riverland Levee Dist., et al., 117 2d 711, 715; Borlasa v. Polistico, 47 Phil. 345, 348 (1925).17 MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines, supra note 87, dissenting opinion of Justice Carpio; Bulig-bulig Kita Kamag-Anak Assoc. v. Sulpicio Lines, 173 SCRA 514, 514-515 (1989); Re: Request of the Heirs

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appears that not all interests can be sufficiently represented as shown by the divergent issues raised in the numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionally allege standing as citizens and taxpayers, however, their petition will stand…

“There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised.18 Applying these determinants, this Court is satisfied that the issues raised herein are indeed of transcendental importance.

3. In the case David v. Arroyo,19 the Supreme Court held as follows:

“Locus standi is defined as “a right of appearance in a court of justice on a given question.”20 In private suits, standing is governed by the “real-parties-in interest” rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that “every action must be prosecuted or defended in the name of the real party in interest.” Accordingly, the “real-party-in interest” is “the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit.”21

Succinctly put, the plaintiff’s standing is based on his own right to the relief sought.

“The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a “public right” in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a “stranger,” or in the category of a “citizen,” or ‘taxpayer.” In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a “citizen” or “taxpayer.”

“Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing in public actions. The distinction was first laid down in Beauchamp v. Silk,22 where it was held that the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:23 “In matter of mere public right, however…the people are the real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied.” With respect to taxpayer’s suits, Terr v. Jordan24 held that “the right of a citizen and a taxpayer to maintain an action in courts to restrain the

of the Passengers of Doña Paz, 159 SCRA 623, 627 (1988) citing Moore, Federal Practice, 2d ed., Vol. 3B, 23-257, 23-258; Board of Optometry v. Colet, 260 SCRA 88 (1996), citing Section 12, Rule 3, Rules of Court; Mathay v. Consolidated Bank and Trust Co., supra note 88; Oposa v. Factoran, supra note 17.18 Kilosbayan v. Guingona, 232 SCRA 110 (1994).19 G.R. No. 171396 (2006).20 Black’s Law Dictionary, 6th Ed. 1991, p. 941. 21 Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).22 275 Ky 91, 120 SW2d 765 (1938).23 19 Wend. 56 (1837).24 232 NC 48, 59 SE2d 359 (1950).

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unlawful use of public funds to his injury cannot be denied.”

“However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down the more stringent “direct injury” test in Ex Parte Levitt,25 later reaffirmed in Tileston v. Ullman.26 The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public.

“This Court adopted the “direct injury” test in our jurisdiction. In People v. Vera,27 it held that the person who impugns the validity of a statute must have “a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result.” The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate,28 Manila Race Horse Trainers’ Association v. De la Fuente,29 Pascual v. Secretary of Public Works30 and Anti-Chinese League of the Philippines v. Felix.31

4. Under the premises, considering that the questioned procurement by COMELEC of the

PCOS based AES of Smartmatic-TIM involves not only the expenditure of public funds, but also the

integrity of the electoral system, as well as the survival of democracy itself, petitioners as taxpayers,

registered voters and Filipino citizens respectfully submit that they have more than sufficient legal

standing to prosecute this petition.

25 302 U.S. 633.26 318 U.S. 446.27 65 Phil. 56 (1937).28 G.R. No. 117, November 7, 1945 (Unreported).29 G.R. No. 2947, January 11, 1959 (Unreported).30 110 Phil. 331 (1960).31 77 Phil. 1012 (1947).

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iThis submission is in compliance with the Order issued in open court by Presiding Justice Antonio T. Carpio at the close of oral arguments on 08 May 2012.ii Rules of Court, Rule 130, Secs. 1 and 2.iii Rules of Court, Rule 130, Sec. 4.iv Rules of Court, Rule 130, Secs. 6 and 7.v Sec. 19, amending Section 18 of Republic Act No. 8436 to read as Section 22 regarding Electronic Returns.vi Sec. 25, incorporating a new Section 30 into Republic Act No. 8436 regarding the Authentication of Electronically

Transmitted Election Results.vii Sec. 3 (b)viii Contract for the Provision of an Automated Election System for the May 10, 2010 Synchronized National and Local

Elections dated 10 July 2009.ix Id.x Id., Secs. 4.3, 9.2 and 9.3.xi Id., Sec. 6.6.xii G.R. No. 188456.xiii Id., page 26.xiv Id, pages 26-27.xv Rules of Court, Rule 131, Sec. 3. which reads in part as follows:

“The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence... (m) That official duty has been regularly performed.”

xvi See R.J. Francisco, Evidence, Rules of Court in the Philippines, Rules 128-134, 1993 ed., p.420, which reads in part asfollows:

“(m) Regularity of performance of official duty. -- When the law imposes certain duties and obligation, it will be presumed that such duties and obligations have been performed unless it is expressly made to appear to the

contrary. All things are presumed to have been rightly and duly performed until there is proof to the contrary.”

xvii Id.xviii Report of the Technical Working Group (TWG-RMA) on the Random Manual Audit of the Automated Election System

(AES) in the 10 May 2010 National and Local Elections, 20 July 2010, page 18.xix Comelec Resolution No. 9376, page 4.xx Comelec Resolution No. 9377, page 1.xxi Comelec Resolution No. 9378, page 1.xxii Id, Secs. 48-54.xxiii The Contract for the Provision of an Automated Election System for the May 10, 2010 Synchronized National and Local

Elections dated 10 July 2009 may be downloaded from the following link: http://www.comelec.gov.ph/modernization/2010_natl_local/SBAC/contract/Contract_Smartmatic-TIM.pdf

The Contract reads in part as follows: “4.3. Option to Purchase. In the event COMELEC exercises its option to purchase the Goods as Listed in Annex “L”, COMELEC shall pay the PROVIDER an additional amount of Two Billion One Hundred Thirty Million Six Hundred Thirty Five Thousand Pesos and Fifteen Centavos (Php,130,635,048.15) as contained in the Financial Proposal of the joint venture partners – SMARTMATIC and TIM.”

xxiv “6.6. COMELEC shall notify the PROVIDER on or before 31 December 2010 of its option to purchase the Goods as Listed in Annex “L.”

xxv R.A. No. 9184, Sec. 10.xxvi Id, Secs. 48-54.xxvii GPPB-DBM Letter Opinion dated 28 March 2012, pp. 2-3.xxviiiId, pp. 4-5.xxix The Technical Specifications of the Invitation to Bid (2009) may be downloaded from the following link:

http://www.comelec.gov.ph/invi2bid/2009/attachment%20for%20bid%20bulletin%20no%2021/SECTION%20VII%20-%20TECHNICAL%20SPECIFICATIONS.pdf

xxx The Request for Proposal with Evaluation Criteria dated 11 March 2009 may be downloaded from the following link: http://www.cenpeg.org/2010%20ELECTIONS/COMELEC%20TOR%20on%20the%20AES%20March%202009.pdf

xxxi Comelec Bid Bulletin No. 10, dated 27 April 2009, Pages 3-4.xxxii Report of the Technical Working Group (TWG-RMA) on the Random Manual Audit of the Automated Election System

(AES) in the 10 May 2010 National and Local Elections, 20 July 2010, Page 18.xxxiiiReport of the TWG-RMA is attached as Annex “5” of the Consolidated Comment dated 30 April 2012 of Respondent

Smartmatic-TIM.xxxiv Id, Page 10.xxxv Id.xxxvi Id, Page 11.xxxviiSupra Report, pages 20-21.xxxviiiRoberto Verzola, Discrepancies found by PPCRV: tip of the iceberg? 20 May 2010 http://www.philstar.com/Article.aspx?articleId=577357&publicationSubCategoryId=135 http://rverzola.wordpress.com/2010/05/20/discrepancies-found-by-ppcrv-tip-of-the-iceberg/#content xxxix Electronic Commerce Act, Section 5. Definition of Terms- For the purposes of this Act, the following terms are defined, as follows: (d) "Electronic signature" refers to any distinctive mark, characteristic and/or sound in electronic from, representing the identity of a person and attached to or logically associated with the electronic data message or electronic

document or any methodology or procedures employed or adopted by a person and executed or adopted by such person with the intention of authenticating or approving an electronic data message or electronic document.

IRR of the Electronic Commerce Act, Section 6. Definition of Terms. - For the purposes of the Act and these Rules, the following terms are defined, as follows: (g) “Electronic signature” refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedures employed or adopted by a person and executed or adopted by such person with the intention of authenticating or approving an electronic data message or electronic document.

Rules on Electronic Evidence, Rule 2, Section 1. Definition of Terms. – For purposes of these Rules, the following terms are defined, as follows: (j) “Electronic signature” refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. For purposes of these Rules, an electronic signature includes digital signatures.xl Civil Code of the Philippines, Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations, is

inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost.

xli Supra Civil Code, Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost.

Art. 46. Juridical persons may acquire and possess property of all kinds, as well as incur obligations and bring civil or criminal actions, in conformity with the laws and regulations of their organization.

Supra IRR, Section 6. Definition of Terms. - For the purposes of the Act and these Rules, the following terms are defined, as follows: (m) “Person” means any natural or juridical person including, but not limited to, an individual, corporation, partnership, joint venture, unincorporated association, trust or other juridical entity, or any governmental authority.

xlii Supra Act, Section 5. Definition of Terms- For the purposes of this Act, the following terms are defined, as follows: (e) "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 right is established or an obligation extinguished, or by which a fact may be prove and affirmed, which is receive, recorded, transmitted, stored, processed, retrieved or produced electronically.

Supra IRR, Section 6. Definition of Terms. - For the purposes of the Act and these Rules, the following terms are defined, as follows: (h) “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 right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. Throughout these Rules, the term “electronic document” shall be equivalent to and be used interchangeably with “electronic data message.”

Supra Rules, Rule 2, Section 1. Definition of Terms. – For purposes of these Rules, the following terms are defined, as follows: (h) “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 right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term “electronic document” may be used interchangeably with “electronic data message”.

xliii Supra Rules, Rule 2, Section 1. Definition of Terms. – For purposes of these Rules, the following terms are defined, as follows: (e) “Digital Signature” refers to an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signer’s public key can accurately determine:

(i) whether the transformation was created using the private key that corresponds to the signer’s public key; and,(ii) whether the initial electronic document had been altered after the transformation was made.

xliv Supra Rules, Rule 2, Section 1. Definition of Terms. – For purposes of these Rules, the following terms are defined, as follows:

(a) “Asymmetric or public cryptosystem” means a system capable of generating a secure key pair, consisting of a private key for creating a digital signature, and a public key for verifying the digital signature.

(c) "Certificate" means an electronic document issued to support a digital signature which purports to confirm the identity or other significant characteristics of the person who holds a particular key pair.

(m) “Key Pair” in an asymmetric cryptosystem refers to the private key and its mathematically related public key such that the latter can verify the digital signature that the former creates.

(n) “Private Key” refers to the key of a key pair used to create a digital signature.(o) “Public Key” refers to the key of a key pair used to verify a digital signature.

xlv Id, Rule 2, Section 1. Definition of Terms. – For purposes of these Rules, the following terms are defined, as follows: (f) “Digitally signed” refers to an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate.

xlvi Supra Act, Section 5. Definition of Terms- For the purposes of this Act, the following terms are defined, as follows: (d) "Electronic signature" refers to any distinctive mark, characteristic and/or sound in electronic from, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedures employed or adopted by a person and executed or adopted by such person with the intention of authenticating or approving an electronic data message or electronic document. (emphasis supplied)

Supra Act, Section 8. Legal Recognition of Electronic Signatures.- An electronic signature on the electronic document shall be equivalent to the signature of a person on a written document if the signature is an electronic signature and proved by showing that a prescribed procedure, not alterable by the parties interested in the electronic document, existed under which-

(a) 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 consent or approval through the electronic signature; (b) Said method is reliable and appropriate for the purpose for which the electronic document was generated or communicated, in the light of all circumstances, including any relevant agreement; (c) It is necessary for the party sought to be bound, in or order to proceed further with the transaction to have executed or provided the electronic signature; and (d) The other party is authorized and enable to verify the electronic signature and to make the decision to proceed with the transaction authenticated by the same. (emphasis supplied)

Supra Act, Section 9. Presumption Relating to Electronic Signatures-In any proceedings involving an electronic signature, it shall be presumed that, (a) The electronic signature is the signature of the person to whom it correlates; and (b) The electronic signature was affixed by that person with the intention of signing or approving the electronic document unless the person relying on the electronically designed electronic document knows or has noticed of defects in or unreliability of the signature or reliance on the electronic signature is not reasonable under the circumstances. (emphasis supplied)

Supra IRR, Section 6. Definition of Terms. - For the purposes of the Act and these Rules, the following terms are defined, as follows: (g) “Electronic signature” refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedures employed or adopted by a person and executed or adopted by such person with the intention of authenticating or approving an electronic data message or electronic document. (emphasis supplied)

Supra IRR, Section 13. Legal Recognition of Electronic Signatures. An electronic signature relating to an electronic document or electronic data message shall be equivalent to the signature of a person on a written document if the signature:

(a) is an electronic signature as defined in Section 6(g) of these Rules; and(b) is proved by showing that a prescribed procedure, not alterable by the parties interested in the electronic

document or electronic data message, existed under which:(i) A method is used to identify the party sought to be bound and to indicate said party’s access to the

electronic document or electronic data message necessary for his consent or approval through the electronic signature;

(ii) Said method is reliable and appropriate for the purpose for which the electronic document or electronic data message was generated or communicated, in the light of all circumstances, including any relevant agreement;

(iii) It is necessary for the party sought to be bound, in order to proceed further with the transaction, to have executed or provided the electronic signature; and,

(iv) The other party is authorized and enabled to verify the electronic signature and to make the decision to proceed with the transaction authenticated by the same. (emphasis supplied)The parties may agree to adopt supplementary or alternative procedures provided that the requirements of

paragraph (b) are complied with.For purposes of subparagraphs (i) and (ii) of paragraph (b), the factors referred to in Annex “2” may be taken into account.

Supra IRR, Section 14. Presumption Relating to Electronic Signatures. - In any proceeding involving an electronic signature, the proof of the electronic signature shall give rise to the rebuttable presumption that: (a) The electronic signature is the signature of the person to whom it correlates; and (b) The electronic signature was affixed by that person with the intention of signing or approving the electronic data message or electronic document unless the person relying on the electronically signed electronic data message or electronic document knows or has notice of defects in or unreliability of the signature or reliance on the electronic signature is not reasonable under the circumstances. (emphasis supplied)

Supra Rules, Rule 2, Section 1. Definition of Terms. – For purposes of these Rules, the following terms are defined, as follows: (j) “Electronic signature” refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic

document. For purposes of these Rules, an electronic signature includes digital signatures. (emphasis supplied)

xlvii See Final Report of the Joint Forensic Team, 09 June 2010, which reads in part as follows:

“Absence of Machine Digital Signatures.

“Examination of the PCOS machines revealed that there was no evidence found to prove the existence of digital certificates in the PCOS machines, contrary to the claims of Smartmatic. The technicians of Smartmatic were not able to show to the forensic team the machine version of the digital signature, alleging that they do not have the necessary tool to show the same. More so, they were at a quandary as to how to extract the said machine signatures - to the dismay of the forensic team.

“If there are digital certificates then these were supposed to be revealed. The forensic team tried to extract the digital signatures but to no avail. Hence, the forensic team is of the opinion that there exists no digital signatures in the PCOS machine.”

xlviii Supra Civil Code, Art. 414. All things which are or may be the object of appropriation are considered either: (1) Immovable or real property; or (2) Movable or personal property.

xlix Id.

l Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881), Section 212. Election returns. - The board of election inspectors shall prepare the election returns simultaneously with the counting of the votes in the polling place as prescribed in Section 210 hereof. The return shall be prepared in sextuplicate. The recording of votes shall be made as prescribed in said section. The entry of votes in words and figures for each candidate shall be closed with the signature and the clear imprint of the thumbmark of the right hand of all the members, likewise to be affixed in full view of the public, immediately after the last vote recorded or immediately after the name of the candidate who did not receive any vote.

The returns shall also show the date of the election, the polling place, the barangay and the city of municipality in which it was held, the total number of ballots found in the compartment for valid ballots, the total number of valid ballots withdrawn from the compartment for spoiled ballots because they were erroneously placed therein, the total number of excess ballots, the total number of marked or void ballots, and the total number of votes obtained by each candidate, writing out the said number in words and figures and, at the end thereof, the board of election inspectors shall certify that the contents are correct. The returns shall be accomplished in a single sheet of paper, but if this is not possible, additional sheets may be used which shall be prepared in the same manner as the first sheet and likewise certified by the board of election inspectors...

If the signatures and/or thumbmarks of the members of the board of election inspectors or some of them as required in this provision are missing in the election returns, the board of canvassers may summon the members of the board of election inspectors concerned to complete the returns.

Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881), Section 261. Prohibited Acts. - The following shall be guilty of an election offense: (bb) Common to all boards of election inspectors and boards of canvassers: (2) Any member of any board of election inspectors or board of canvassers who, without justifiable reason, refuses to sign and certify any election form required by this Code or prescribed by the Commission although he was present during the meeting of the said body.

Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881), Section 264. Section 264. Penalties. - Any person found guilty of any election offense under this Code shall be punished with imprisonment of not less than one year but not more than six years and shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be enforced after the prison term has been served. Any political party found guilty shall be sentenced to pay a fine of not less than ten thousand pesos, which shall be imposed upon such party after criminal action has been instituted in which their corresponding officials have been found guilty.

In case of prisoner or prisoners illegally released from any penitentiary or jail during the prohibited period as provided in Section 261, paragraph (n) of this Code, the director of prisons, provincial warden, keeper of the jail or prison, or persons who are required by law to keep said prisoner in their custody shall, if convicted by a competent court, be sentenced to suffer the penalty of prision mayor in its maximum period if the prisoner or prisoners so illegally released commit any act of intimidation, terrorism of interference in the election.

Any person found guilty of the offense of failure to register or failure to vote shall, upon conviction, be fined one hundred pesos. In addition, he shall suffer disqualification to run for public office in the next succeeding election following his conviction or be appointed to a public office for a period of one year following his conviction.

li Rep. Act No. 9369, Sec. 19. Section 18 of Republic Act No. 8436 is hereby amended to read as follows:

“SEC. 22. Electronic Returns. - Each copy of the of the printed election returns shall bear appropriate control marks to determine the time and place of printing. Each copy shall be signed and thumbmarked by all the members of the board of

election inspectors and the watchers present. If any member of the board of election inspectors present refuses to sign, the chairman of the board shall note the same copy in each copy of the printed election returns. The member of the board of election inspectors concerned refusing to sign shall be compelled to explain his or her refusal to do so. Failure to explain an unjustifiable refusal to sign each copy of the printed election return by any member of the board of election inspectors shall be punishable as provided in this Act. The chairman of the boards shall then publicly read and announce the total numbers of registered voters, the total number of voters who actually voted and the total numbers of votes obtained by each candidate based on the election returns...”

Rep. Act No. 9369, Sec. 28. Section 29 of Republic Act No. 8436 is hereby amended to read as follows:

"SEC. 35. Prohibited Acts and Penalties. - The following shall be penalized as provided in this Act, whether or not said acts affect the electoral process or results:"(a) Utilizing without authorization, tampering with, damaging, destroying or stealing:

"(1) Official ballots, election returns, and certificates of canvass of votes used in the system; and"(2) Electronic devices or their components, peripherals or supplies used in the AES such as counting machine, memory pack/diskette, memory pack receiver and computer set;

"(b) Interfering with, impeding, absconding for purpose of gain, preventing the installation or use of computer counting devices and the processing, storage, generation and transmission of election results, data or information;"(c) Gaining or causing access to using, altering, destroying or disclosing any computer data, program, system software, network, or any computer-related devices, facilities, hardware or equipment, whether classified or declassified;"(d) Refusal of the citizens' arm to present for perusal its copy of election return to the board of canvassers;"(e) Presentation by the citizens' arm of tampered or spurious election returns;"(f) Refusal or failure to provide the dominant majority and dominant minority parties or the citizens'' arm their copy of election returns; and"(g) The failure to post the voters' list within the specified time, duration and in the designated location shall constitute an election offense on the part the election officer concerned.""Any person convicted for violation of this Act, except those convicted of the crime of electoral sabotage, shall be penalized with imprisonment of eight years and one day to twelve (12) years without possibility of parole, and perpetual disqualification to hold public office and deprivation of the right of suffrage. Moreover, the offender shall be perpetually disqualified to hold any non-elective public office."

lii Rep. Act No. 9369, Sec. 19. Section 18 of Republic Act No. 8436 is hereby amended to read as follows:

“SEC. 22. Electronic Returns... "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 supplied)

liii Id.

liv Rep. Act No. 9369, Sec. 28. Section 29 of Republic Act No. 8436 is hereby amended to read as follows:

"SEC. 35. Prohibited Acts and Penalties. - The following shall be penalized as provided in this Act, whether or not said acts affect the electoral process or results:"(a) Utilizing without authorization, tampering with, damaging, destroying or stealing:

"(1) Official ballots, election returns, and certificates of canvass of votes used in the system; and"(2) Electronic devices or their components, peripherals or supplies used in the AES such as counting machine, memory pack/diskette, memory pack receiver and computer set;

"(b) Interfering with, impeding, absconding for purpose of gain, preventing the installation or use of computer counting devices and the processing, storage, generation and transmission of election results, data or information;"(c) Gaining or causing access to using, altering, destroying or disclosing any computer data, program, system software, network, or any computer-related devices, facilities, hardware or equipment, whether classified or declassified;"(d) Refusal of the citizens' arm to present for perusal its copy of election return to the board of canvassers;"(e) Presentation by the citizens' arm of tampered or spurious election returns;"(f) Refusal or failure to provide the dominant majority and dominant minority parties or the citizens'' arm their copy of election returns; and"(g) The failure to post the voters' list within the specified time, duration and in the designated location shall constitute an election offense on the part the election officer concerned.""Any person convicted for violation of this Act, except those convicted of the crime of electoral sabotage, shall be penalized with imprisonment of eight years and one day to twelve (12) years without possibility of parole, and perpetual disqualification to hold public office and deprivation of the right of suffrage. Moreover, the offender shall be perpetually disqualified to hold any non-elective public office."

lv Rules of Court, Rule 131, Sec. 3. which reads in part as follows: “The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence... (m) That official duty has been regularly performed.”

lvi See R.J. Francisco, Evidence, Rules of Court in the Philippines, Rules 128-134, 1993 ed., p.420, which reads in part asfollows: “(m) Regularity of performance of official duty. -- When the law imposes certain duties and obligation, it will be presumed that such duties and obligations have been performed unless it is expressly made to appear to the contrary. All things are presumed to have been rightly and duly performed until there is proof to the contrary.”

lvii Id.

lviii Exec. Order No. 810, Sec. 3(a).lix Exec. Order No. 810, Sec. 3(b).lx SC Rules on Electronic Evidence, Rule 2, Sec. 1(i) “Electronic key” refers to a secret code which secures and defends

sensitive information that crosses over public channels into a form decipherable only with a matching electronic key.”

Implementing Rules and Regulations of the “Electronic Commerce Act”, Sec. 6(i) “Electronic key” refers to a secret code which secures and defends sensitive information that crosses over public channels into a form decipherable only by itself or with a matching electronic key. This term shall include, but not be limited to, keys produced by single key cryptosystems, public key cryptosystems or any other similar method or process, which may hereafter, be developed.”

Rep. Act No. 8792, Electronic Commerce Act, Sec. 5(g) “Electronic key” refers to a secret code which secures and defends sensitive information that crosses over public channels into a form decipherable only with a matching electronic key.”

lxi Comelec Resolution No. 8739, Secs. 33(a)(1), 33(2)(e)-(h), and 38(1)-(5).lxii Comelec Resolution No. 8739, Secs. 33(a)(2), and 38(6)(c)-(f).lxiii Comelec Resolution No. 8739, Secs. 33(a)(2), 33(2)(h) and 38(4).lxiv Comelec Resolution No. 8786, Sec. 34(e), 34(s)-(v), 40(a)-(e), and 40(f)-(i).lxv Comelec Resolution No. 8786, Sec. 34(e)(iv), 34(s)-(v), and 40(a)-(e).lxvi Smartmatic demo at MediaNation, 2:08-2:35

(Smartmatic demonstration of automated voting at the 6th MediaNation Summit, Antipolo City, 11 September 2009) http://www.youtube.com/watch?v=0jHaxRTp_ww lxvii Quick Guide to the Automated Elections

(Smartmatic-TIM gives Yahoo! Southeast Asia a demo of the Automation process of the 2010 National Elections, 04 November 2009) http://www.youtube.com/watch?v=g7HUUqPi8VU&feature=related lxviii Contract for the Provision of an Automated Election System for the May 10, 2010 Synchronized National and Local

Elections dated 10 July 2009.

“3.2. The PROVIDER shall provide the Goods and perform the Services under this Contract and the Contract Documents. It shall provide competent project management, technical manpower and efficient services. In shall ensure the proper, satisfactory and timely execution and completion of the Project.

“3.3. The PROVIDER shall be liable for all its obligations under this Project, and the performance of portions thereof by other persons or entities not parties to this Contract shall not relieve the PROVIDER of said obligations and concomitant liabilities.

“SMARTMATIC, as the joint venture partner with the greater experience in automated elections, shall be in charge of the technical aspects of the counting and canvassing software and hardware, including transmission configuration and system integration. SMARTMATIC shall also be primarily responsible for preventing and troubleshooting technical problems that may arise during the elections.

“The PROVIDER must provide to SMARTMATIC at all times the support required to perform the above responsibilities.”

lxix Comelec Resolution No. 8786 approved on 04 March 2010 provides in part as follows...

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. A message shall be displayed "PRINTING 8 COPIES OF NATIONAL RETURNS. PLEASE WAIT"...

The cited resolution was approved and signed by Comelec Chairman JOSE A.R. MELO, and Members RENE V. SARMIENTO, NICODEMO T. FERRER, LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH, and GREGORIO Y. LARRAZABAL.

Notably, the said resolution was issued in violation of the new Section 22 of Republic Act No. 8436, as amended by Republic Act No. 9369 on 23 January 2007, which expressly provides that election returns transmitted electronically be “digitally signed.”

lxx Buying or Leasing of Election Machines by COMELECFrancis Mark A. Quimba, Supervising Research Specialist of PIDS

http://www.dbm.gov.ph/wp-content/OPCCB/fpb/c_COMELEC/c-Comelec-revised.pdf lxxi The Philippine Institute for Development Studies is a non-stock non-profit government corporation created under

Presidential Decree No. 1201 (1977) and attached to the National Economic Development Authority for policy and program coordination.

lxxii G.R. No. 188456.

lxxiii Smartmatic-TIM Consolidated Comment dated 30 April 2012, pages 73-74.lxxiv “PCOS” a tool for honest or fraudulent elections? Part 4 of 4, 0:00-1:16

(Proceedings of the National Board of Canvassers) http://www.youtube.com/watch?v=asht2fcY28I lxxv Oral arguments held on 08 May 2012.