TNTrio at Supreme Court Versus Comelec Smartmatic

Republic of the Philippines
SUPREME COURT
Manila
En Banc
ELISEO MIJARES RIO JR. 1

AUGUSTO CADELIÑA LAGMAN 2
FRANKLIN FAYLOGA YSAAC 3

Petitioners
versus
COMMISSION ON ELECTIONS (COMELEC)

SMARTMATIC TOTAL INFORMATION MANAGEMENT
DITO TELECOMMUNITY
GLOBE TELECOM
SMART COMMUNICATIONS
Respondents
PETITION
FOR MANDAMUS WITH PRAYER
FOR TEMPORARY RESTRAINING ORDER
TO COMPEL PRESERVATION AND / OR
RESTRAIN ALTERATION/ERASURE/DELETION OF
SUBSCRIBER AND CYBER TRAFFIC DATA INTEGRITY
OF TELECOM TRANSMISSIONS OF NATIONAL ELECTION RESULTS
FROM 7PM TO AT LEAST 9PM OF 09 MAY 2022 PHILIPPINES TIME
Petitioners, with the assistance of volunteer lawyers, most

respectfully submit this politically-neutral urgent petition, involving
transcendental national interest, unto the Honorable Supreme.
1
DEPARTMENT OF INFORMATION & COMMUNICATIONS TECHNOLOGY (DICT) Secretary
and COMELEC Advisory Council Chairman until 1 July 2019, NATIONAL
TELECOMMUNICATIONS COMMISSION Commissioner (until 2003), Ret Brigadier
General since 27 October 2000, Philippine Military Academy Instructor (until
1974), Electronics & Communications Engineer 1971 Board Exam 4th Placer
2
COMELEC Commissioner (until 2012), NATIONAL MOVEMENT FOR FREE ELECTIONS
(NAMFREL) President, Manila Times "Let’s Face IT" Column Writer
3
FINANCIAL EXECUTIVES INSTITUTE OF THE PHILIPPINES (FINEX) Former President,
Software App Developer for Banks, Consultancies in the Bank of Saipan and
select Banks in the Philippine, Franklin Financials Consultancy
PETITION TO COMPEL COMELEC SMARTMATIC TO PRESERVE SUBSCRIBER &
CYBER TRAFFIC DATA INTEGRITY (RESTRAIN ERASURE) OF NATIONAL ELECTION
RESULTS TRANSMITTED FROM 7PM TO AT LEAST 9PM OF 09 MAY 2022
Page 2 of 100
EXECUTIVE SUMMARY
1. The Election Automation Law {Republic Act № 8436 Section

27 as amended by Republic Act № 9369 Section 27 effective since
10 February 2007} requires the COMMISSION ON ELECTIONS
(COMELEC) and the COMELEC ADVISORY COUNCIL (CAC) to monitor /
evaluate / implement the Election Automation Law and submit a
report within six months from the date of election to the JOINT
CONGRESSIONAL OVERSIGHT COMMITTEE FOR AUTOMATION OF THE ELECTION
SYSTEM (JCOC AES).
2. NATIONAL TELECOMMUNICATIONS COMMISSION (NTC) Memorandum

Circular № 2007-04-06 requires public telecommunication entities
to retain telecommunication traffic data log and CALL DETAIL RECORDS
(CDR).
3. The Cybercrime Prevention Law (effective since 12 September

2012) (specifically Republic Act № 10175 Section 13) requires
preservation of subscriber information and traffic data integrity for
at least six (6) months.
4. Previous submissions of COMELEC reports to the JCOC AES

had habitually been close to the last day of the “six months” period
and sometimes even beyond the last day. All previous submissions
contain no report on relevant cyber traffic log / CDR data because
of the clever and convenient excuse that telecommunication
companies (hereafter “telco” or “telcos” for brevity) erase/delete
the said data after expiration of the period of six months.
5. Plain common sense and telcos themselves admit that they

keep records of such historically important data. 4
6. Plain common sense and the COMELEC itself admit that

it (COMELEC) has authority to keep and even “expropriate” such
historically important data. 5
7. Why is COMELEC hiding such historically important data?
4
JCOC AES 28 August 2014 deliberations TSN Pages (21 to 23)
& (28 to 30) & 84 quoting PLDT First Vice President Atty.
Florentino D. Mabasa Jr.
5
JCOC AES 28 August 2014 deliberations TSN Page 90 quoting
COMELEC Chairman Sixto Serrano Brillantes
Page 3 of 100
8. The period of six months (from the May 9, 2022 elections) is

soon to expire within a few days from today = on the 9th of
November 2022. Time is of the essence.
9. This Urgent Petition does not violate the Data Privacy Act
because this Petition is just praying for data preservation = not for
releasing sensitive data to the petitioners.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
DOCUMENT ANNEX
DATE LETTERS/PLEADINGS IN THIS
PETITION
Procedures rendering improbable (almost A&B
impossible) transmission of election result Pages
within an hour from closing of polls 22 to 33
Letter requesting from COMELEC proof of C&D
2022 07 12 transmission of data from vote counting machines Pages
to the transparency server 34 to 37
COMELEC En Banc Secretary Director Consuelo B
2022 07 15 Diola Transmittal Memo № 221140 to COMELEC E
Page 38
Executive Director Bartolome J Sinocruz
2022 07 31 COMELEC Fire F
Letter expressing concern about the Sunday night G
2022 08 03
COMELEC fire to Commissioner Marlon Casquejo Page 40
2022 08 15 reply of Commissioner Marlon S Casquejo H

Page 41
I
2022 08 23 Letter to JCOC 6 Pages
42 to 44
J
2022 08 23 Letter to Comelec Advisory Council Pages
45 to 47
2022 08 25 Response to Casquejo's non-responsive reply K

Page 48
2022 10 Letter of Ma. Asuncion Q. Hipolito, MD, to PPCRV 7
10
2022 10 10 Letter of Ma. Asuncion Q. Hipolito, MD, to Party
2022 10 18 Letter to DITO Tele-community N

Page 51
2022 10 18 Letter to Globe Telecom O

Page 52
2022 10 18 Letter to Smart Communications P

Page 53
2022 10 Judicial Affidavit of Franklin Fayloga Ysaac
18 Q
2022 10 18 Judicial Affidavit of Augusto Cadeliña Lagman R
2022 10 18 Judicial Affidavit of Eliseo Mijares Rio Jr S
6
Joint Congressional Oversight Committee (JCOC)
7
Parish Pastoral Council for Responsible Voting (PPCRV)
Page 4 of 100
SUMMARY OF VIRAL SOCIAL MEDIA POSTINGS 8

<https://www.facebook.com/eliseoriojr>
“At 7:17pm of May 9, 2022, just seventeen (17) minutes after
voting closed at 7pm, the Comelec Transparency Server showed
the public its first counting result of 1,525,637 votes. These
number of votes would come from at least 2,000 clustered
precincts VOTE COUNTING MACHINES (VCM).”
“The Comelec General Instructions to the teacher members of

the Election Board require, among others, that eight (8) printed
and signed copies of the precinct ELECTION RETURN (ER) must first
be done before any transmission can be made. The printing alone
took the longest time for the thermal printer in the VCM is slow.”
“Comelec itself admitted on record = judicial admission before

the Supreme Court during the hearing of oral arguments resulting
to the promulgation of the 8 March 2016 landmark Supreme Court
decision in {Bagumbayan Volunteers for a New Philippines and
[Senator] Richard Juico Gordon et al versus Comelec and
Smartmatic et al} (GR № 222731) = that it takes at least thirteen
(13) seconds to print each "resibo" or VOTER VERIFIABLE PAPER AUDIT
TRAIL (VVPAT) which will result in adding at least two (2) hours to
the voting process.”
“This is the same printer used to print the eight (8) copies of
the Election Returns (ER). The printed VVPAT contains only the
names of one (1) President, one (1) Vice President, twelve (12)
Senators, one (1) Party List Representative, and around an equal
number of names for local government positions {Congress Rep,
Governor, Vice Governor, Bokal, Mayor, Vice Mayor, Konsehal}.”
“The printed ER is much longer, containing the names of ten

(10) presidential candidates, nine (9) vice presidential candidates,
sixty-four (64) senatorial candidates, one hundred seventy-seven
(177) party list candidates, and around an equal number of
candidates for local positions.”
8
The quotations of said viral social media postings are not
raising factual issue burdens to the Supreme Court. The
quotations are just descriptions of the background that led to
the formulation of the purely legal questions of law in the
Executive Summary and Prayer of this Petition.
Page 5 of 100
“It would take at least 30 minutes, after the last voter casted
his/her vote after closing time, to officially close the voting, set up
the VCM for printing, print 8 copies of the ER (with unavoidable
printing break time delays necessary for replenishing rolls of
depleted thermal printer paper), affixing the signatures of the
teachers on each and every ER set or a total of 8 ER sets, and then
give some time for the poll watchers to scrutinize the printed ER.
Then and only then can the ER be transmitted electronically to the
Transparency Server.”
“The earliest transmissions then would occur after 7:30pm.

It is therefore impossible for the Transparency Server to have
shown to the public 1.5M votes by 7:17pm!”
“Even if assuming that indeed all requirements of the Comelec

General Instructions were complied with within 17 minutes, and
transmissions began, as shown by the first result of the
Transparency Server at 7:17pm, that would mean that the
20,061,691 votes shown to the public at 8:02pm were the result
of transmissions from the VCMs to the Transparency Server in just
45 minutes.”
“No transmissions were made in the first 15 minutes after

voting closed because of the requirements of the General
Instructions, which include printing of 8 copies of the ER, which
must first be done before the ER could be transmitted. That would
now set the rate of transmissions received by the Transparency
Server and we could then compute that the rate of votes counted
in 60 minutes or in 1 hour would be 26,748,921 votes per hour.”
“Yet in the second hour of counting, from 8:02pm to 9:02pm,

only 13,248,630 votes were counted, less than half the rate of
counting established in the first hour.”
“This is very illogical because much more VCMs should have

been ready to transmit than the first hour, during which precinct
officials were still preparing the ERs for transmission. Considering
that numerous voters who were in the vicinity of the precincts at
the 7pm closing time were still allowed to vote, therefore, almost
all would have voted by the second hour.”
“This is the first time in our election history, and maybe in

the history of the whole world, that the number of votes counted
peaked at the very first hour in a four-day counting period.”
Page 6 of 100
“It would have been easy for Comelec to have answered our
letter by simply showing that indeed more than 20M votes were
counted in the first hour because these large number of votes were
the basis of their explanation to the public that the highly
statistically improbable constant vote ratios of ALL candidates for
president and vice president, that appeared in every update of the
counting from the very beginning to end, is possible using the ‘law
of large numbers’ theory.”
“Instead, they redirected us to get our answers from the JOINT

CONGRESSIONAL OVERSIGHT COMMITTEE ON AUTOMATED ELECTION SYSTEM
(JCOC-AES) and the COMELEC ADVISORY COUNCIL (CAC), when the
data we are asking for are supposed to have originated from
Comelec. If Comelec cannot show the public that at least 2,000
transmission reports were received electronically that have the
date/time stamp between 7pm and 7:17pm of May 9, 2022 then
the only conclusion that can be derived is that such numbers were
pre-loaded into the transparency and/or the Comelec servers.”
“We challenge Comelec to demonstrate to the public that all

activities required in its General Instructions, including the printing
of the ER, can be done in less than 17 minutes before any
transmission is made. And for that matter, show the public, in a
time and motion demo, the actual time it takes for the Election
Board, from closing the voting, printing of ERs, to the transmission
of the ERs. We challenge Comelec to show the public at least 2,000
Transmission Reports that have date/time stamps between
7:00pm and 7:17pm to account for the 1,525,637 votes shown in
the Transparency Server at 7:17pm. We further appeal to the poll
watchdog PARISH PASTORAL COUNCIL FOR RESPONSIBLE VOTING (PPCRV)
to tell the public whether, in their manual count of the printed ERs
given to them, they could account for at least 2,000 Transmission
Reports of ERs with date/time stamps between 7pm and 7:17pm.
If none of these can be shown or proven, then the data being
shown in the Transparency Server is fraudulent from the very
beginning.”
“We appeal to the JCOC-AES to expedite the release of these

data, disclose to the public the date/time stamps of all transmission
reports of ERs from the VCMs via telcos to the Transparency Server
from 7:02pm to 8:02pm of May 9, 2022, to account for the
incredible 20M+ votes counted just one hour after the voting
closed. This is to dispel any and all doubts about grossly
implausible results shown in the Transparency Server and restore
the people’s trust in the 2022 elections.”
Page 7 of 100
LATEST VIRAL SOCIAL MEDIA POSTINGS

<https://www.facebook.com/eliseoriojr>
“On October 18, 2022, the Ateneo School of Government, thru
a non-partisan, pro-democracy, Participate PH, organized a Forum
on ‘The COMELEC Assessment of the 2022 National and Local
Elections’. Guest Speaker was COMELEC Chairperson George
Garcia. We attended the Forum hoping that the irregularities we
have observed during the May 9 election will be resolved. Last July
15, we have written COMELEC regarding our observation that
COMELEC has to prove by showing actual transmission logs that
indeed a PEAK 20M+ votes were counted at the first hour of
counting from 7pm to 8pm, and only 13.2M+ votes were counted
in the second hour from 8pm to 9pm on May 9. Such results (shown
in Pic1 and Pic2) are mathematically, logically and statistically
highly improbable if not impossible.”
Page 8 of 100
“Instead of showing transmission logs to account for the

questionable PEAK of 20M+ shown to the public in the
Transparency Server, COMELEC instead showed a graph (Pic3)
where it explained that there are no irregularities in the
transmission of data in the May 9 election because it conforms to
the transmissions of past AES elections 2010, 2013, 2016, and
2019, except that in the 2022 election, more VCMs were used.”
“Actually, the graph shown (Pic3) makes our observations

stronger that there were indeed irregularities in the 2022 election.
There is no question that the transmissions all conforms to normal
telcos’ network protocols and capability available at the time of
election. But what was not explained was that the start time in
the time-axis is zero. This means that all transmission curves from
2010 to 2022 elections started on the first VCM transmissions,
not when voting closed.”
“The General Instructions of COMELEC require the teacher-

members of each precinct Electoral Board (EB) to first print 8
copies of the ELECTION RETURN (ER) before any transmission can be
made to the Transparency Server. Time and motion studies showed
that this required printing process takes at least 30 minutes,
sometimes up to more than an hour. Thus, in the case of the 2022
election, the earliest transmissions would have been made at
around 7:30pm.”
Page 9 of 100
“So, using the same graph that COMELEC presented in the

Forum, and enlarging it to focus on the few hours after
transmission started at 7:30pm (Pic4), it will be clearly seen that
the data shown to the public by the Transparency Server are
highly irregular!”
“It is clearly shown that transmission peaked around 2 hours

after VCMs started transmission, at around 9:30pm, not 8:02pm.
The graph also shows that at 8:02pm, around 20,000 VCMs
transmitted their data which will account for only 12M votes, not
a PEAK 20M+ votes, assuming that each VCM handles 600 voters.”
“The fact that COMELEC was able to show the graph in the
October 18 Forum, means that it has the compilation of
transmission logs from 7pm to 9pm, which we have been asking
since July 15, 2022. Why they did not show this to the public during
the Forum, and instead showed a graph that would tend to show
that nothing irregular happened, is questionable. But looking
closer at that graph they presented showed that COMELEC is
likely hiding something in its assessment of the last election. In
fact, when questioned about the PEAK 20M+ votes that was
counted and shown the public on 8:02pm and the uncanny
constant vote ratio for all candidates for President and Vice
President, Chairman George Garcia categorically said that the
20M+ figure came from PARISH PASTORAL COUNCIL FOR RESPONSIBLE
VOTING (PPCRV) and not from COMELEC!”
Page 10 of 100
“Another question that remained unanswered was could

COMELEC assure the voting public that the ballots that were
randomly selected, and transported to Diamond Hotel for the
RANDOM MANUAL AUDIT (RMA), were never tampered in transit,
considering that the watchdogs for this activity, NATIONAL MOVEMENT
FOR FREE ELECTIONS (NAMFREL) and LEGAL NETWORK FOR TRUTHFUL
ELECTIONS (LENTE), never observed the proper sealing of the ballot
boxes, and should be the only ones who could unseal these upon
arrival in the hotel.”
“Unless COMELEC actually shows the transmission logs,

collaborated by the telcos CALL DETAIL RECORDS (CDR), from 7pm to
8pm of May 9, then the election may most likely had been rigged.”
-------------------------------------------------------------------------
“… uncanny constant vote ratio …”
Presidential Candidates
Vice Presidential Candidates

Page 11 of 100
PARTIES
10. Petitioners are taxpayers from diverse backgrounds sharing a

common desire to save Philippine democracy from the curse of the
Biblical adage about an animal “swallowing its own vomit” 9 for the
seventh time (1st in 2008 | 2nd in 2010 | 3rd in 2013 | 4th in 2016
| 5th in 2019 | 6th in 2022 | and probably a 7th in 2025).
11. Respondent COMMISSION ON ELECTIONS (COMELEC) may receive

copies of notices and orders at the 8th Floor of Palacio del
Gobernador ‹ Andres Soriano Avenue corner General Luna Street ‹
Intramuros 1002 Manila ‹ Philippines.
12. Petitioners anticipate the entry of appearance of the OFFICE OF

THE SOLICITOR GENERAL (OSG). Petitioners undertake to furnish
electronic and paper copies of this petition to the OSG as soon as
possible after receiving a docket number for this petition from the
Honorable Supreme Court.
13. Respondent Smartmatic TOTAL INFORMATION MANAGEMENT (TIM)

[hereafter “Smartmatic” for brevity] may receive copies of this
initiatory pleading at the postal and/or email address written in its
website. Petitioners are willing and ready to furnish electronic
copies of this petition to Smartmatic as a “corporation” under Rule
65 Section 3 unless and until the Honorable Supreme Court orders
otherwise.
14. Respondent telecommunication companies are nominal

respondents in the sense that they are bound by confidentiality
obligations and/or NON-DISCLOSURE AGREEMENTS (NDA) and/or
similar restrictions on liberties and/or impositions by Comelec
and/or Smartmatic.
15. Annexes "N" & "O" & "P" prove that petitioners have been,
and continue to be, exerting exhaustive efforts at securing the
cooperation of the respondent telecommunication companies, but
their lips remain tight, unwilling to crack an opening, not even to
inhale, not even to exhale, holding their breaths for the longest
time, probably all the way until the 9th of November 2022, after
which they can declare that the precious top secret, involving vital
national interest, emptied into a “Recycle Bin” or “Trash” that is
deeper than any cyber burial grave, gone forever, zapped.
9
Proverbs 26:11
Page 12 of 100
NATURE OF THE PETITION
16. This is a special civil action for mandamus aiming to compel

respondents to perform an easy task requiring virtually zero
budget: save transcendentally important historical data or at least
share copies thereof with the Honorable Supreme Court. A simple
email (containing the subject data) from any or all respondents to
the Honorable Supreme Court can accomplish the task.
17. Petitioners have no more plain / speedy / adequate remedy

in the ordinary course of law because the 9th of November 2022 is
just a few ticks away and fast approaching.
18. Ordinary remedy is not plain because respondents refuse to

budge even a single inch to a plain-and-simple request.
19. Ordinary remedy is not speedy because time flew for the past
five months and respondents are still stonewalling despite
exhaustive efforts by petitioners and many other patriotic citizens.
20. Ordinary remedy is not adequate because the triumvirates of

Comelec and Smartmatic viz-a-viz telecommunication companies
are so titanic in stature that they have not shown any interest in
glancing down to spend even a few seconds of their precious time
for paying some attention to tiny but patriotic individual citizens.
TIMELINESS AND RIPENESS
21. The issue is timely and ripe, perhaps even over-ripe, because
the respondent telecommunication companies will soon have an
excuse to delete forever the historically important data after
expiration of the period of six months that has been ticking away,
without missing a single heartbeat, since the 9 May 2022 elections,
toward irreversible erasure this coming 9 November 2022, as the
respondent telecommunication companies are, by then, no longer
under any obligation to save the sensitive public document, unless
and until the Honorable Supreme Court intervenes for salvation of
the said nationally-important data.
22. Jurisprudence is replete with examples that spare mandamus

from excessive inflexibilities of deadline rules (such as limitation
statutes) in the interest of substantial justice. 10
10
Guillerma Flordelis et al versus Fermin Mar et al (GR № L-54887) (22 May 1982) citing
Volume 52 American Jurisprudence 2nd edition Page 705 and Volume 55 American
Law Reports Pages 1144 to 1147
Page 13 of 100
23. There was a Supreme Court case with similar set of facts
triggering commencement of a mandamus petition praying
primarily for enforcement of the constitutional right of suffrage and
information, among many other prayers, versus substantially the
same or similar electoral fraud issues that cast serious doubt on
legitimacy. The filing date of that petition was on 23 April 2010.
Promulgation of the Supreme Court decision thereon, ruling on the
merits, came within just two weeks thereafter, on the 6th of May
2010 to be exact, which was barely four (4) days before the historic
10 May 2010 presidential elections. 11 The opening sentence of that
decision explains the speed of judicial action “in view of the
unravelling of alarming events of late.”
24. This case is simpler and easier because petitioners are just
praying for preservation of data. The prayer here does not call for
any tectonic shift in policy. The prayer here is a harmless request
asking the telecommunication companies to keep, not delete, data
that someday may inspire patriotism in the hearts of the youth and
future citizens of our country.
JURISDICTION
25. The Supreme Court shall have the power to exercise original
jurisdiction over petitions for certiorari, prohibition, mandamus,
quo warranto, and habeas corpus. 12
26. Special civil actions are appropriate remedies to raise

constitutional issues and to review and/or prohibit/nullify, when
proper, acts of legislative and executive officials. 13
27. The people are the real party in interest when the issue
concerns a public right and the object of mandamus is to obtain
the enforcement of a public duty. It is sufficient that the petitioners
are citizens. They need not show that they have any legal or special
interest in the result of the action. 14
28. Mandamus is proper for petitioners that invoke their

constitutional rights to suffrage and to information in compelling
Comelec to explain fully the complete details of its preparations in
view of the unraveling of alarming events of late. 15
11
Former Vice President Teofisto Tayko Guingona and Rodolfo Imperial Lozada et al
versus Comelec (GR № 191846) (06 May 2010)
12
Constitution Article VIII Section 5 (1)
13
Wigberto Tañada et al versus Edgardo Angara et al (GR № 118295) 02 May 1997
14
Francisco Ibrado Chavez versus Presidential Commission on Good Government (GR №
130716) 09 December 1998
15
Teofisto Guingona et al versus Comelec (GR № 191846) 06 May 2010
Page 14 of 100
ADVOCACIES OF PETITIONER "GUS" LAGMAN
29. Here is a description of postwar Philippine elections using

purely manual election system starting in year 1946. Voters first
fill up their ballots by hand then (2nd) cast the ballots themselves
then (3rd) insert the ballots into the ballot box.
30. After the voting period: BEI (Board of Election Inspectors)

tabulate the votes manually and then physically transport the
results known as ER (Election Return) to the C/MBOC
(City/Municipality Board of Canvassers). The C/MBOC tabulate the
ERs manually and then physically transport the results (COC)
(Certificate of Canvass) to the PBOC (Provincial BOC). The PBOC
tabulate the COCs manually and then physically transport the
results (Provincial COC) to the Congress and then Presidential
Election Tribunal for final tabulation of the party-list then senatorial
then vice-presidential then presidential votes.
31. Good point: The ladder hierarchy is transparent and allows

voters to witness and fully-understand the system.
32. Bad point: The process was slow. Precinct activities consume
a day. Physical transport from precincts to canvassing points, and,
later, the three-level canvassing steps, require four to six weeks.
33. Republic Act № 9369 authorizes the COMELEC to automate

transparent, credible, fair, and accurate elections.
34. Description: Election Day: Voters shade ballot ovals

corresponding to their candidate choices and then feed the ballots
into a black box known as VOTE COUNTING MACHINES (VCM) that
tabulate votes and printout results (ERs) which poll workers
distribute according to law. VCMs electronically-transmit results to
the three-level canvassing points.
35. COMELEC did not automate as such until after the 2007
elections.
36. Good point: almost instantaneous results.
37. Bad points: Unobservable vote-counting is inherently insane.

None of the voters can witness the counting of votes. Voters cannot
detect vote manipulation. The system killed the protest process.
Page 15 of 100
38. Why spend ten billion pesos to automate precinct activities

requiring only 5 to 12 hours (24 hours in extreme cases)?
39. Better approach: automate the canvass (not precinct)

activities at a cost of around 300 million pesos only and yet save
around 30 days.
40. Why did most first world democracies junk the Smartmatic
style of automation and shift to hybrid election system?
41. Germany forbids “push button voting” that is not transparent

or that requires blind faith because the voter cannot see the
counting. Voting on blind faith is unconstitutional according to the
Supreme Court of Germany.
42. German Slogan: “Secret Voting. Public Counting.”
43. Ireland paid around 40 million Euros for voting machines from
the “Nedap” Dutch company to pilot test 3 constituencies in the
2002 Irish general election and a referendum on the Treaty of Nice.
Public dissatisfaction led to a decision on 23 April 2009 to scrap
electronic voting system.
44. 20 years of e-voting in Netherlands fell apart in 2008. Voters

prefer pen and paper.
45. Growing number of states in the USA (around 20 to 30 states)

are reverting to the manual system.
46. The Hybrid System is a better alternative.
● Open-source software.
● No need for time-consuming (months-long) software review.
● No need to generate VCM hash codes in every precinct.
● No need for VCM Final Testing and Sealing (FTS).
● Donate polling laptops to the school after elections.
● Save the transportation cost that returning laptops incur.
● Minimal training.
● Accurate.
Page 16 of 100
POSSIBLE SOLUTIONS AFTER COURT INTERVENTION
47. This Petition is unique, not only in the sense of being politically
neutral, but more so in the sense that it aims to expose twin root
causes explaining why many individuals and groups habitually rush
to the Honorable Supreme Court with a glimmer of hope that
judicial action may prevent or at least deter the administrative acts
or omissions of respondent Comelec which is known and notorious
for having a history of railroading, without public consultation,
promulgation of GENERAL INSTRUCTIONS (GI) which are broad “rules”
with “devils in the details” that violate Laws or Republic Acts that
underwent extensive public consultations. Often, the midnight
implementing rules written by shady bureaucrats, hiding under
obscure technological jargon, contravene Republic Acts.
48. The twin root causes are: first, omission of its duty under
the laws to promulgate implementing rules after public
consultation; and second, act of promulgating surprise midnight
piecemeal general instructions without prior public consultation.
49. The Judicial Notice Rule 16 enumerates the items which courts,
including the Honorable Supreme Court, may consider for arriving
at a conclusion. The “political constitution and history of the
Philippines” are among the items in said enumeration.
Substantially all allegations herein are within the scope of
Philippine history.
50. Petitioners respectfully wish to emphasize that the core issue

in this Petition involves pure question of law and does not raise
factual issues that may dump a burden of ascertaining
cumbersome facts on the desk of the Honorable Supreme Court.
51. Understandably, the Honorable Supreme Court must be free

from the cumbersome burden of excavating archeological mounds
of allegations to dig and ferret out truth from a seemingly
insurmountable debris of fake news.
52. Many electoral reform advocates have been calling attention

to the express provision in Republic Act № 8436 Section 6, as
amended by Republic Act № 9369 Section 6, under which the
Comelec is authorized (not required) to use an automated election
system or systems in some localities or nationwide.
16
Rules of Court Rule 129 Section 1
Page 17 of 100
53. Fake news proliferating in main stream and social media

misquote the law by saying that the only option available to
Comelec nationwide and overseas is SMARTMATIC TOTAL INFORMATION
MANAGEMENT (hereafter “Smartmatic” for brevity). This fake news
misled many into assuming, and in fact believing, that Comelec
cannot shift to a transparent and/or hybrid election system that
has been, and continues to be, proven in many first world
democracies, when in truth Comelec has authority to do so under
existing laws. Many have been, and continue to be, misled into
believing that inconspicuous Comelec resolutions affecting crucially
important and mandatory poll safeguards that underwent public
consultation prior to promulgation as an implementing rule.
54. Over a decade of experiences point to an emerging pattern

indicating that the wrong actions became possible because of
inactions. Bad acts grew out from the soil of omission. This Petition
propose solutions that sum up to a single sentence: The laws are
good, but the implementing rules are either missing or misled, and
Comelec does not seem to care at all about this legal omission.
55. Legislations usually couch statutes in general terms after

expressing the policy and purpose. The legislature may delegate or
entrust to an administrative agency the details of enforcement or
manner of carrying out the law. There is a clearcut distinction in
administrative law between quasi-legislative rule and
interpretative rule. 17
Quasi-Legislative Rule Interpretative Rule

Legislature delegates authority
The administrative agency
to the administrative agency
interprets a pre-existing law by
which makes new or additional
stating policy details or
law within the scope of
rendering an advisory opinion.
legislative will.
56. The Administrative Code provision on public participation

requires publication or circulation of notices of rule proposals to
afford opportunity for submission of views prior to adoption of any
rule. The same Administrative Code provision commands
observation of a contest procedure whenever the administrative
agency receives an opposition to a rule-making proposal. 18
17
People versus William Ernest Jolliffe (GR № L-9553) 13 May 1959 () // Victorias Milling
Company versus Social Security System (GR № L-16704) 17 March 1962 (114
Philippine Reports 555) // Philippine Blooming Mills versus Social Security System (GR
№ L-21223) 31 August 1966 (124 Philippine Reports 499)
18
Administrative Code Book VII (Administrative Procedure) Chapter 2 (Rules and
Regulations) Section 9 subsections (1) & (3)
Page 18 of 100
57. Jurisprudence is replete with examples of legislative rules that are in the
nature of subordinate legislation for implementing primary legislation by
providing the details thereof. Adoption of a legislative rule generally requires
hearing in the same way that laws must have the benefit of public hearing. 19
The same jurisprudence elaborates on three questions which the Court may
ask when investigating delegation of legislative rule-making authority to an
administrative agency. First: is the rule within the authority? Second: is it
reasonable? Third: was it issued pursuant to proper procedure?
Republic Act № 8436 § 31 Republic Act № 9369 § 30
The Commission shall promulgate The Commission shall
rules and regulations for the promulgate rules and regulation
implementation and enforcement of
for the implementation and
this Act including such measures that
will address possible difficulties and enforcement of this Act.
confusions …
58. The said “rules and regulations” in election automation legislations are
quasi-legislative that require public hearing. Those rules are not merely
“interpretative”. There is no excuse for escaping from public consultation.
Observance of mandatory due process by public consultation procedure under
the Administrative Code 20 can at least lay the groundwork for minimizing the
damage to democracy.
GRAVE AND IRREPARABLE INJURY TO

FREEDOM OF INFORMATION
59. The Constitution {recognizes the people’s right to information

on matters of public concern} and {affords citizens access to
official records & documents pertaining to official acts &
transactions & decisions & research data that government may use
as basis for policy development}. 21 Moreover, the Constitution
{adopts and implements a policy of full public disclosure of all its
transactions involving public interest} 22 and commands Comelec
to {submit a comprehensive report after each election}. 23
60. Grave and irreparable injuries, like the sword hanging above
the head Damocles, are sure to fall and behead historical truth
unless a temporary restraining order (TRO) and/or preliminary
mandatory injunction shall come to the rescue. The People, not the
petitioners, are the ultimate beneficiaries if the Honorable Supreme
Court grants the prayers in this Petition.
19
Misamis Oriental Association of Coco Traders versus Department of Finance Secretary
(GR № 108524) (10 November 1994) // Commissioner of Internal Revenue versus
Fortune Tobacco (GR № 119761) (29 August 1996)
20
Administrative Code Book VII (Administrative Procedure) Chapter 2 (Rules and
Regulations) Section 9 subsections (1) & (3)
21
Constitution Article III (Bill of Rights) Section 7
22
Constitution Article II (State Policies) Section 28
23
Constitution Article IX-C-(COMELEC) Section 2 subsection 9
Page 19 of 100
ISSUES
(PURELY LEGAL ISSUES) / (QUESTIONS OF LAW)
May the Honorable Supreme Court order the respondents to
preserve the subscriber / cyber traffic data log integrity / call
record details corresponding to national election results
transmitted from 7PM to at least 9PM of 09 May 2022?
May the Honorable Supreme Court restrain the respondents from
modifying / erasing / deleting the subscriber / cyber traffic data log
integrity / call record details corresponding to national election
results transmitted from 7PM to at least 9PM of 09 May 2022?
May the respondents delay resolution of this case until after the
9th of November 2022 when the respondents may argue about
being no longer under the duty to preserve said data in accordance
with National Telecommunications Commission Memorandum
Circular № 2007-04-06 in relation to the Cybercrime Prevention
Law (specifically Republic Act № 10175 Section 13)?
May the respondents invoke the Data Privacy Act as excuse
notwithstanding the logic that this Petition is just praying for
preservation of historically-important data = not release of said
historically-important data to the petitioners?
PRAYER
WHEREFORE, PREMISES CONSIDERED, it is most respectfully prayed
of the Honorable Supreme Court:
1. A Temporary Restraining Order (TRO) be issued

immediately enjoining the respondents to cease and desist from
any act that may modify / erase / delete any part or whole of the
historically important subscriber / cyber traffic data log integrity /
call record details corresponding to national election results
transmitted from 7PM to at least 9PM of 09 May 2022;
2. After due hearing before 9 November 2022, and/or on

the basis of judicial notice of history, an ancillary writ of preliminary
mandatory injunction be issued, directing the private respondent
telecommunication companies (telcos) to deliver faithful copies of
their respective records/details of the said historically-important
data directly and exclusively to the Honorable Supreme Court; and
3. After due hearing, a final writ of mandamus be issued

directing the respondents to preserve for posterity the said
historically-important data.
Other reliefs just and equitable are also prayed for.

Page 20 of 100
Signed on 28 October 2022 in Quezon City
Respectfully
KATES JASTIN E. AGUILAR

COLLABORATING COUNSEL FOR THE PETITIONERS
Postal Address @ care of Eliseo Rio Jr
Lot 7 Block 11 Soldiers Hill
Barangay Putatan 1772 Muntinlupa City
Roll of Attorneys № 80208
IBP № 216409 – May 24, 2022
Occidental Mindoro Chapter
PTR № 3312294 – 07/15/2022
MCLE / Admitted to the Bar: May 18, 2022
0939-849-2254
katesjastin@gmail.com
eliseoriojr27@gmail.com
0917-832-9276
guslagman2019@gmail.com
0917-817-8477
ffysaac@gmail.com
0918-925-5472
Page 21 of 100
VERIFICATION
SWORN CERTIFICATION AGAINST FORUM SHOPPING
AFFIDAVIT OF SERVICE
VERIFICATION FOR EFFICIENT USE OF PAPER RULE
We: Eliseo Mijares Rio {Filipino of legal age with residence at Lot 7 Block 11 Soldiers Hill ‹
Barangay Putatan 1772 Muntinlupa City}
Augusto Cadeliña Lagman {Filipino of legal age with residence at 6053 Palm Street ‹
Poblacion 1210 Makati City}
Franklin Fayloga Ysaac {Filipino of legal age with residence at 2210 Beacon
Condominium ‹ Chino Roces Avenue ‹ Legaspi Village 1223 Makati City}
hereby verify that we have read this petition and that the same is true to the best of our own
personal knowledge. We certify that:
(a) We have not theretofore commenced any other action or proceeding involving the
same issues in the Supreme Court, Court of Appeals, or any other tribunal or agency.
(b) To the best of our own personal knowledge, there is no other similar action pending in
the Supreme Court, Court of Appeals, or any other tribunal or agency.
(c) If there is any action or proceeding which is either pending or may have been
terminated, we shall state the status thereof.
(d) If we thereafter learn that a similar action or proceeding is pending before the Supreme
Court, the Court of Appeals, or any other tribunal or agency, we undertake to report
that fact within 5 days therefrom to this Honorable Supreme Court.
We respectfully comply with Rule 13 Section 17 by attesting that copies of this petition will
be sent by courier (instead of personal service) to [below] because of time constraints.
8/F Palacio del Gobernador
Commission on Elections Andres Soriano corner General Luna
Intramuros 1002 Manila
Unit 2208 22/F
The Trade and Financial Tower
Smartmatic Total Information Management
7th Avenue corner 32nd Street
Bonifacio Global City 1634 Taguig
DITO CME Holdings President Ernest R Alberto
21st Floor UDENNA Tower
DITO Tele Community Rizal Drive corner 4th Avenue
Globe Telecom President Ernest L Cu
Globe Telecom Globe Tower @ 2nd Street corner 7th Avenue
Smart Communications President Alfredo S Panlilio
Ramon Cojuangco Building
Smart Communications Makati Avenue corner Ayala Avenue
Legaspi Village 1200 Makati City
Efficient use of paper rule: We verify that electronic copies of this petition in PORTABLE
DOCUMENT FORMAT (PDF) in non-editable optical COMPACT DISC (CD) media will be sent to the
above. Please see in Page 100 the postal registry receipts and/or proof of courier service.
ELISEO MIJARES RIO Junior AUGUSTO CADELIÑA LAGMAN
FRANKLIN FAYLOGA YSAAC
Subscribed and sworn before me on 21 October 2022 in Quezon City by the affiants with
exhibit of their respective competent evidence of identity (Pages 56 & 59 & 62 of this Petition).
Document 125 ATTY ROGELIO JORGE BOLIVAR

NOTARY PUBLIC IN QUEZON CITY
Page 25 Commission: Administrative Matter № NP 204 (2021-2022)
IBP OR № 132134 MD 2021 & IBP OR № 133076 MD 2022
Book VI PTR OR № 2463255D / 2022-01-03 / Roll № 33832 / TIN 129-871-009
MCLE № VI-0029583 (2019.12.16) Quezon City
Series 2022 Address: 31-F Harvard Street ▪ Cubao ▪ Quezon City
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[[Annex A Page 10]]

AVERAGE PRINTING TIME
VOTER VERIFIED PAPER AUDIT TRAIL ELECTION RETURN
SECONDS PRINT LINES PRINT LINES SECONDS
1 Precinct Information Precinct Information at least 23

1 President President 10
1 Vice President Vice President 9
1 Senators Senators 64
1 Party List Representative Party List Representatives 177
1 Representative Representative at least 1
1 Governor Governor at least 1
1 Vice Governor Vice Governor at least 1
1 Board Members Board Members at least 3
1 Mayor Mayor at least 1
1 Vice Mayor Vice Mayor at least 1
1 Council Members Council Members at least 8
1 Remarks Remarks at least 1
13 at least 300
13 SECONDS!!!
is the printing time of each and every resibo or
VVPAT or VOTER VERIFIED PAPER AUDIT TRAIL
according to the Judicial Admission of the
COMELEC spoken at the Oral Arguments in the
“Resibo Case” officially known as Bagumbayan
Volunteers for a New Philippines and [Senator]
Richard Juico Gordon et al versus Comelec and
Smartmatic et al (GR № 222731) decided on the
8th of March 2016.
If printing a VVPAT consumes

13 seconds
then printing an Election Return
consumes an average of at least
300 SECONDS!!!
Page 32 of 100
[Annex B Page 1]]
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[[Annex B Page 2]3
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[[Annex C Page 1]]

Page 35 of 100
[[Annex C Page 2]]

Page 36 of 100
[[Annex C Page 3]]

Page 37 of 100
[[Annex D]]
Page 38 of 100
[[Annex E]]
Page 39 of 100
[[Annex F]]
https://www.philstar.com/nation/2022/08/01/2199337/fire-hits-comelec-building
MANILA, Philippines — A fire broke out at the Palacio del Gobernador building,
which houses the Commission on Elections (Comelec) office, in Intramuros,
Manila last night. The Bureau of Fire Protection said the blaze affected the
seventh floor of the centuries-old building, where the Comelec’s information
technology department is located. Firefighters raised the first alarm at around
6:53 p.m. and elevated it to second alarm at 7:02 p.m., with eight fire trucks
responding to the alarm. Photos from the Manila Disaster Risk Reduction and
Management Office showed fire trucks and ambulances surrounding the
building, but there was no visible sign of smoke or fire from the outside. The
BFP’s Intramuros fire station is across the street from the building. Aside from
Comelec, the Palacio del Gobernador also houses the Metro Manila office of
the Home Development Mutual Fund or Pag-ibig Fund and the Intramuros
Administration. As of early last night, the BFP had yet to declare if the fire had
been controlled or put out.
Page 40 of 100
[[Annex G]]
Page 41 of 100
[[Annex H]]
Page 42 of 100
[[Annex I Page 1]]

Page 43 of 100
[[Annex I Page 2]]

Page 44 of 100
[[Annex I Page 3]]

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[[Annex J Page 1]]

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[[Annex J Page 2]]

Page 47 of 100
[[Annex J Page 3]]

Page 48 of 100
[[Annex K]]
Page 49 of 100
[[Annex L]]
Page 50 of 100
[[Annex M]]
Page 51 of 100
[[Annex N]]
Page 52 of 100
[[Annex O]]
Page 53 of 100
[[Annex P]]
Page 54 of 100
[[Annex Q Page 1]]
JUDICIAL AFFIDAVIT
A. I am Franklin Fayloga Ysaac = Filipino of legal age, senior citizen, with

residence at 2210 Beacon Condominium Tower Two ‹ Chino Roces Avenue ‹
Makati City. 24
B. The names and addresses of the examining lawyers conducting these

examinations are: Attorney Melchor Gruela Magdamo {postal address @ 54
Sarimanok Street ‹ Mira Nila Homes ‹ Barangay Pasong Tamo 1107 Quezon
City} in collaboration with Attorney Robert David Buluran {office address @
1915 Medical Plaza Building ‹ 25 San Miguel Avenue ‹ Ortigas Center 1600
Pasig City}. These examinations were held at Sugarhouse in Power Plant Mall
in Rockwell in Makati City. 25
C. I = Franklin Fayloga Ysaac = as witness, am answering the questions

here, fully conscious that I do so under oath, and that I may face criminal
liability for false testimony or perjury. 26
Questions (Q) and Answers (A)
Q1: Preliminarily, what are the circumstances or how did you acquire the
facts upon which you testify? 27
A1: I am a voter with COMELEC identification card and with right to vote in
one of the polling precincts in Barangay Pio del Pilar in Makati City. I was a
President of the FINANCIAL EXECUTIVES INSTITUTE OF THE PHILIPPINES (FINEX).
Q2: What is the relevance of your right as voter in this affidavit?
A2: I was among the voters who voted, and, who personally know, with
sufficient technological comprehension, the facts and circumstances
surrounding the May 2022 national and local elections.
Q3: What is the relevance of your experience as FINEX President in this

affidavit?
A3: My background in banking and finance as well as my involvement in the

latest INFORMATION AND COMMUNICATIONS TECHNOLOGY or ICT evolutions were the
sources of my confidence in exercising my constitutional right to express
honest scientific observations about my own personal knowledge of facts and
circumstances surrounding the May 2022 national and local elections.
Q4: What is the “background” in your previous answer?

A4: I have with me a copy of my Curriculum Vitae which is open the public
and accessible at <https://web.facebook.com/franklin.ysaac>.
24
Judicial Affidavit Rule, Section 3(a)
25
Judicial Affidavit Rule, Section 3(b)
26
Judicial Affidavit Rule, Section 3(c)
27
Judicial Affidavit Rule, Section 3(d)(1)
Page 55 of 100
[[Annex Q Page 2]]

Q5: What are those observations in Answer № 3?
A5: The observations are too voluminous to fit into a single judicial affidavit.
Let me summarize by describing them initially as postings in social media that
became viral to the point of becoming prominent in mainstream media. They
are accessible at this Facebook page:
<https://web.facebook.com/franklin.ysaac>
I was not aware at that time that two other equally credible experts share the
same observations from different viewpoints.
Q6: Who are those two other equally credible experts?
A6: They are former DEPARTMENT OF INFORMATION AND COMMUNICATIONS

TECHNOLOGY (DICT) Secretary Eliseo Mijares Rio Junior and former COMELEC
Commissioner Augusto "Gus" C. Lagman. I never met them before, never had
a chance to script or harmonize our observations, and yet synchronicity fell
from heaven inspiring the three of us to prophesy. Social media refer to us as
#TNTrio (TRUTH AND TRANSPARENCY TRIO).
Q7: What did #TNTrio do after discovering the inspiring synchronicity?
A7: Letters were sent to exhaust administrative remedies. Copies of the

complete contents of the Letters are in Annexes "C" to "P" of the Petition which
this Judicial Affidavit is supporting for filing at the Supreme Court.
DOCUMENT DATE
DATE
LETTERS & RESPONSES RECEIVED
TNTrio Letter requesting from COMELEC proof of
2022 07 12 transmission of data from vote counting machines to the 2022 07 15
transparency server
COMELEC En Banc Secretary Director Consuelo B Diola
2022 07 15 Transmittal Memo № 221140 to COMELEC Executive 2022 07 15
Director Bartolome J Sinocruz
Letter expressing concern about the Sunday night
2022 08 03 2022 08 05
COMELEC fire to Commissioner Marlon Casquejo
2022 08 15 reply of Commissioner Marlon S Casquejo
2022 08 23 Letter to Comelec Advisory Council 2022 08 26
2022 08 23 Letter to JCOC 28 2022 08 26
2022 08 25 Response to Casquejo's non-responsive reply 2022 08 26
2022 10 10 Letter of Ma Asuncion Q Hipolito MD to PPCRV 29 2022 10 10
2022 10 10 Letter of Ma Asuncion Q Hipolito MD to Party 2022 10 12
2022 10 18 Letter to DITO Tele-community 2022 10 19
2022 10 18 Letter to Globe Telecom 2022 10 19
2022 10 18 Letter to Smart Communications 2022 10 19
Updates to said letters and responses are accessible at the following Facebook
pages: < https://web.facebook.com/franklin.ysaac >
Q8: What is the gist of the prayer of the petition that you wish to file in the
Supreme Court?
28
JCOC = Joint Congressional Oversight Committee for Electoral Reforms
29
PPCRV = Pastoral Council for Responsible Voting
Page 56 of 100
[[Annex Q Page 3]]

A8: I hope that the Supreme Court will promulgate a politically-neutral
provisional remedy, as soon as possible, before the 9th of November 2022,
directing the COMELEC and the telecommunication companies (DITO Tele-
community & Globe Telecom & Smart Communications) to preserve the
subscriber and cyber traffic data integrity of the national election results
transmitted from 7PM to at least 9PM of 09 May 2022.
In witness I hereunto set my hand this 21 October 2022 in Quezon City.
Franklin Fayloga Ysaac

Subscribed and sworn before me on 21 October 2022 in Quezon City in accordance with
Supreme Court Circular № 2020-07-04-SC.
Document 126
ATTY ROGELIO JORGE BOLIVAR
Page 26 NOTARY PUBLIC IN QUEZON CITY
Commission: Administrative Matter № NP 204 (2021-2022)
Book VI IBP OR № 132134 MD 2021 & IBP OR № 133076 MD 2022
PTR OR № 2463255D / 2022-01-03 / Roll № 33832 / TIN 129-871-009
Series 2022 MCLE № VI-0029583 / 2019.12.16 / Quezon City
Address: 31-F Harvard Street ▪ Cubao ▪ Quezon City
In this sworn attestation by the examining lawyer pursuant to the Judicial Affidavit Rule,
Attorney Melchor Gruela Magdamo in collaboration with Attorney Robert David Buluran attest
that: (1) I faithfully recorded the questions asked and the corresponding answers of Franklin
Fayloga Ysaac; and that (2) neither I, nor any other person then present or assisting us,
coached Franklin Fayloga Ysaac regarding his answers.
Melchor Gruela Magdamo

Document 127
PTR OR № 2463255D / 2022-01-03 / Roll № 33832 / TIN 129-871-009
Page 57 of 100
[[Annex R Page 1]]
JUDICIAL AFFIDAVIT
A. I am Augusto “Gus” Cadeliña Lagman = Filipino of legal age, senior

citizen, with residence at 6053 Palma Street ‹ Poblacion ‹ Makati City. 30

C. I = Augusto “Gus” Cadeliña Lagman = as witness, am answering the

questions here, fully conscious that I do so under oath, and that I may face
criminal liability for false testimony or perjury. 32
A1: I was a former COMELEC Commissioner until year 2012. I am the

President of the NATIONAL MOVEMENT FOR FREE ELECTIONS or NAMFREL. I still write
in the “Let’s Face IT” column of “The Manila Times”.
Q2: What is the relevance of your experience as COMELEC Commissioner in

this affidavit?
A2: Election reform has been my advocacy since 1986. I know by heart
Philippine style of election and better alternatives. I still have reliable insider
information about the realities in COMELEC. I know the problems inside
COMELEC and I know of solutions outside COMELEC.
Q3: What is the relevance of your experience as NAMFREL President in this

affidavit?
A3: I was at the frontlines in monitoring facts and circumstances

surrounding the May 2022 national and local elections. NAMFREL has been
monitoring Philippine elections for many decades already. My expertise is on
“systems”. I am a “systems” person. I wrote many articles about open election
system otherwise known as transparent elections and what many now refer
to as hybrid election system. I was the proponent of PATAS or the Precinct
Automated Tallying System. That is why I have some serious reservations and
observations about the May 2022 national and local elections.
30
31
32
33
Page 58 of 100
[[Annex R Page 2]]

Q4: Do you have documentation of your credentials as expert witness?
A4: I have with me a copy of my Curriculum Vitae which is open to public

scrutiny and accessible at this website: < https://namfrel.org.ph >
became viral to the point of becoming prominent in mainstream media. They
are accessible at this website:
<https://namfrel.org.ph>
I was not aware at that time that two other equally credible experts share the
same observations from different viewpoints.
A6: They are former DEPARTMENT OF INFORMATION AND COMMUNICATIONS

TECHNOLOGY (DICT) Secretary Eliseo Mijares Rio Junior and former FINANCE
EXECUTIVES (FINEX) President Franklin Fayloga Ysaac. I never met them before,
never had a chance to script or harmonize our observations, and yet
synchronicity fell from heaven inspiring the three of us to prophesy. Social
media refer to us as #TNTrio (TRUTH AND TRANSPARENCY TRIO).

complete contents of the Letters are in Annexes "C" to "P" of the Petition that
DOCUMENT DATE
DATE
transparency server
2022 08 03 2022 08 05
2022 08 23 Letter to JCOC 34 2022 08 26
Updates to said letters and responses are accessible at the following website:
<https://namfrel.org.ph>
34
35
Page 59 of 100
[[Annex R Page 3]]

Q8: What is the gist of the prayer of the petition that you wish to file in the Supreme Court?
A8: I hope that the Supreme Court will promulgate a politically-neutral provisional remedy,
as soon as possible, before the 9th of November 2022, directing the COMELEC and the
telecommunication companies (DITO Tele-community & Globe Telecom & Smart
Communications) to preserve the subscriber and cyber traffic data integrity of the national
election results transmitted from 7PM to at least 9PM of 09 May 2022.
Augusto Cadeliña Lagman

Document 128
PTR OR № 2463255D / 2022-01-03 / Roll № 33832 / TIN 129-871-009
that: (1) I faithfully recorded the questions asked and the corresponding answers of Augusto
Cadeliña Lagman; and that (2) neither I, nor any other person then present or assisting us,
coached Augusto Cadeliña Lagman regarding his answers.
Document 129
PTR OR № 2463255D / 2022-01-03 / Roll № 33832 / TIN 129-871-009
Page 60 of 100
[[Annex S Page 1]]
JUDICIAL AFFIDAVIT
A. I am Eliseo Mijares Rio Junior = Filipino of legal age, senior citizen, with
residence at Lot 7 Block 11 Soldiers Hill ‹ Putatan 1772 Muntinlupa City. 36

C. I = Eliseo Mijares Rio Junior = as witness, am answering the questions

here, fully conscious that I do so under oath, and that I may face criminal
liability for false testimony or perjury. 38
A1: I was DEPARTMENT OF INFORMATION & COMMUNICATIONS TECHNOLOGY (DICT)

Secretary and COMELEC Advisory Council Chairman until 1 July 2019, NATIONAL
TELECOMMUNICATIONS COMMISSION Commissioner (until 2003), Ret Brigadier
General since 27 October 2000, Philippine Military Academy Instructor (until
1974), Electronics & Communications Engineer 1971 Board Exam 4th Placer.
Q2: What is the relevance of your experience in DICT etcetera?
A2: I was able to analyze the statistically improbable pattern in the

Transparency Server report of election results for the positions of President
and Vice President.
Q3: What is that statistical improbability?
A3: I have many Facebook postings about that. This is the link to my
Facebook page:
https://www.facebook.com/eliseoriojr
Q4: What did you post if you can summarize your Facebook post in a single
sentence?
A4: I have serious disturbing observations about the May 2022 presidential
and vice-presidential elections.
36
37
38
39
Page 61 of 100
[[Annex S Page 2]]

became viral to the point of becoming prominent in mainstream media.
Anyone can browse them at my Facebook page. I was not aware at that time
that two other equally credible experts share the same observations from
different viewpoints.
A6: They are former COMELEC Commissioner Augusto "Gus" Cadeliña

Lagman and former FINANCE EXECUTIVES or FINEX President Franklin Fayloga
Ysaac. I never met them before, never had a chance to script or harmonize
our observations, and yet synchronicity fell from heaven inspiring the three of
us to prophesy. Social media refer to us as #TNTrio (TRUTH AND TRANSPARENCY
TRIO).

complete contents of the Letters are in Annexes "C" to "P" of the Petition that
DOCUMENT DATE
DATE
transparency server
2022 08 03 2022 08 05
2022 08 23 Letter to JCOC 40 2022 08 26
Please read the updates in my Facebook page:
https://www.facebook.com/eliseoriojr
Q8: What is the gist of the prayer of the petition that you wish to file in the
Supreme Court?
40
41
Page 62 of 100
[[Annex S Page 3]]

A8: I hope that the Supreme Court will promulgate a politically-neutral
provisional remedy, as soon as possible, before the 9th of November 2022,
directing the COMELEC and the telecommunication companies (DITO Tele-
community & Globe Telecom & Smart Communications) to preserve the
subscriber and cyber traffic data integrity of the national election results
transmitted from 7PM to at least 9PM of 09 May 2022.
Eliseo Mijares Rio Junior

Document 130
PTR OR № 2463255D / 2022-01-03 / Roll № 33832 / TIN 129-871-009
that: (1) I faithfully recorded the questions asked and the corresponding answers of Eliseo
Mijares Rio Junior; and that (2) neither I, nor any other person then present or assisting us,
coached Eliseo Mijares Rio Junior regarding his answers.
Document 131
PTR OR № 2463255D / 2022-01-03 / Roll № 33832 / TIN 129-871-009
Page 63 of 100
Annex T
Sins of Smartmatic
Executive Summary
The four national and local elections in 2010, 2013, 2016 and 2019 showed that the
Commission on Elections (Comelec) did not comply with the Automated Election System (AES)
Law or RA 9369. They did not comply with the law specifically Sections 3, 6.e, 7, 8, 9, 11, 13,
14, 22, 25, 30, 33, 35 and 37.
Due to non-promulgation of the Implementing Rules and Regulations (IRR) of RA 9369,

Comelec misinterpreted all the technical provisions stipulated therein. One major violation
was their misinterpretation of digital signing - they did not comply with Section 5.e of e-
Commerce law or RA 8792 and Sections 5.e of its IRR, Supreme Court’s A.M. № 01-7-01-
SC.- RE: RULES ON ELECTRONIC EVIDENCE, Rule 6 and Executive Order № 810, s. 2009:
INSTITUTIONALIZING THE CERTIFICATION SCHEME FOR DIGITAL SIGNATURES AND
DIRECTING THE APPLICATION OF DIGITAL SIGNATURES IN E-GOVERNMENT SERVICES.
With the non-compliance with RA 9369, there were so many untoward incidents described
herein including the unresolved cases of Bro. Eddie Villanueva, the 60-30-10 phenomenon,
the unwanted digital lines, continuous ballot printing at the Holy Family’s office, the
comprehensive digital forensic findings of 60 PCOS machines seized in Antipolo, the failure to
secure communications channels for electronic transmissions, the failure to conduct test
certifications and source code reviews, the failure to adopt the recommendation of the
Comelec Advisory Council not to use the PCOS machines in 2013 onwards, the untoward
incidents at PPCRV’s head office, the early transmissions in 2016, the failure to implement
contingency plans, the failure to adopt the offer of the Department of Information and
Communications Technology (DICT) on the use of their public key infrastructure, and the
Wao case in 2008 ARMM election.
Aside from non-compliances, there were illegal actions of Comelec in violation of Government
Procurement Reform Act or RA 9184 such as Option to Purchase and Direct Contracting.
Besides, Comelec did not do due diligence about the background of Smartmatic as the former
is not the owner of the PCOS technology but rather the Dominion Voting System. Worse, the
legal battle between Smartmatic and Dominion affected our 2010 elections based on the
‘admission of guilt’ of Smartmatic in the Court of Chancery, Delaware. In addition, it is very
clear that the intervention of Comelec Chairmen in the past violated RA9184 as Smartmatic
was favored in several instances. First instance was during the BAC of Melo Administration
when they should have already disqualified Smartmatic: Smartmatic-TIM was not yet
incorporated and that the PCOS machine demonstrated conked out with smoke generated.
The last instance was when Brillantes intervened in the middle of the legal battle of
Smartmatic-Dominion.
There are two pending cases filed by the Philippine Computer Society and AES Watch in the
Ombudsman since 2010. And there’s a pending response from the Government Procurement
Policy Board to be submitted to the Committee on Electoral Reform and People’s Participations
since 2019.
Lastly, President Rodrigo Roa Duterte already pronounced in 2019, "I would like to advise
COMELEC, now, hindi ko na lang hintayin [I wouldn't wait], dispose of Smartmatic and look
for a new one that is free of fraud."
Page 64 of 100
AES Watch Rally on March 17, 2011

in front of Comelec’s office
List of Comelec-Smartmatic SINS against our DEMOCRACY
1. Non-promulgation of Implementing Rules and Regulation since 1997 (23 years ago).
Section 37. Rules and Regulations. - The Commission shall promulgate rules and regulations
for the implementation and enforcement of this Act. See Item 8.1 8.3: Non-promulgation of
IRR yielded misinterpretations of the provisions of the law.
2. Early transmissions in 2016 elections caused the introduction of Senate Bill № 7, the
Hybrid Election Act filed on July 7, 2019 by Senate President Vicente Sotto and Sen. Cynthia
Villar. The said bill later became SBN 1950 filed on December 14, 2020 with the same senators
plus Senator Imee Marcos.
2.1.1. Rationale behind the SBN 7 was based on the privilege speeches of Senate President
Sotto (March 6 and 14, 2018) re alleged fraud in the 2016 elections. Sotto’s investigation
focused on:
2.1.2. Early transmission of election results on the day before the elections, May 8, 2016,
until the early morning of May 9, 2016 at about 1:12 a.m.;
2.1.3. Sudden utilization of undisclosed queuing servers on May 10 to 11;
2.1.4. Establishment of seven regional hubs of the Comelec; and,
2.1.5. Failure to electronically transmit 3.86 percent of election results representing at least
1.7 million votes.
2.1.6. Ex-Smartmatic operations officer of 2016 elections, Mr. Jeff Dy, explained in a JCOC’s
TWG hearing on March 18, 2019 re the early transmissions based on the audit logs submitted
by the Comelec.
Reference: Dy, Jeffrey Ian C. Dy (March 18, 2019). Report to the Technical Working Group of
the Joint Congressional Oversight Committee on the Automated Elections System
Investigating the Conduct of the 2016 Elections in relation to the Privilege Speech of Senate
President Vicente "Tito" C. Sotto III, Retrieved December 27, 2020, from
https://www.manilatimes.net/wp-content/uploads/2019/04/TWG-Report-JCOC-
March18_jeff.pdf
2.2. Maricor Akol comment:
No Transmissions from all regions
nationwide at 6:00pm - 6: 30pm
of May 9, 2016 (we observed this
when we graphed Transmissions
from ALL Regions - which made us
think of the possibility of maybe
some "tampering" with the System
was done.
3. Smartmatic’s ‘Admission of
Guilt’
Page 65 of 100
3.1. Reference: Smartmatic v. Dominion Voting System legal battle

http://www.namfrel.com.ph/v2/news/bulletin/Dominion%20response%20to%20Smartmatic
%20Oct%2017,%202012.pdf
3.2. The legal battle between Smartmatic and actual owner of the PCOS technology, the
Dominion Voting System from Canada, was surprisingly not considered by Comelec as a
critical risk as they continued to patronize Smartmatic until 2019 without analyzing what
Smartmatic revealed in Delaware Chancery Court, and these are the main grounds (on p.4):
3.2.1. “failing to deliver fully functional technology for use in the 2010 Philippines national
election” (that’s why the PCOS machines were not counting properly!);
3.2.2. “failing to provide timely technical support during and after the Philippines election”
(that’s why defects were not resolved!!); and,
3.2.3. “failing to place in escrow the required source code, hardware design, and
manufacturing information” (that’s why Smartmatic did not comply with the AES law!!!).
3.3. On p.18, it is stated that “During a test of the automated voting system conducted
shortly before the [2010] Election, COMELEC and Smartmatic discovered a defect in the
Licensed Technology— Dominion International’s software failed to correctly read and record
the paper ballot.” That happened particularly during the Final Testing and Sealing a week
before the May 2010 elections. It is technically impossible to correct such defect of 76,000
PCOS machines even if Comelec allegedly recalled the compact flash cards to replace the
PCOS software programs in less than a week then. That’s why, the Philippine Computer
Society filed a petition to the Supreme Court to postpone the elections for some time to
actually correct the defect and do the test recertification – but this was denied!
3.3.1. Maricor Akol comment:
* I was requested by Chairman Brillantes NOT to take up the Court Case of Smartmatic against
Dominion in the Chancery of Delaware during the Senate Hearing, because this matter was
being resolved by Dominion with Smartmatic thru the Law Firm hired by Dominion to
represent them in the Phil. - the Sycip Salazar Law Firm.
* This topic was taken up during a Breakfast Meeting at the Manila Hotel with Chairman
Brillantes. NAMFREL Chairman (at that time) Cora Bernardo asked me if she can give my
phone number to Chairman Brillantes, who wanted to discuss something with me.
* At that time when he called, I did not know what he wanted to discuss. But since Cora asked
me and since we wanted NAMFREL to be in good terms with COMELEC, I agreed to meet with
him for Breakfast. Since we both did not want the Philippines to be using an unlicensed
software. I agreed to his request of not bringing up the topic on the Smartmatic- Dominion
Feud. And I made a Counter request to Chairman Brillantes - " Can We just follow the Law on
the AES". To this he did not reply but instead asked his Assistant (a COMELEC Lady Lawyer
who was with us) to get the Bill.
3.4. Comelec’s intervention in the legal battle
Before the 2013 elections, former Comelec Chairman Brillantes when he, on behalf of the
Comelec, offered to place $10 million in an escrow account and proposed that whoever wins
in the Delaware case would get the money. Brillantes’ desperate proposal was to have the
source code released by Dominion. Was our government that rich to interfere in their legal
battle? If ever, was he authorized to do that? By whom? What law? However, at the time, the
deadline to have it test certified on February 13, 2013, had already passed. The law prescribes
that the source code be certified 3 months before the elections (i.e., May 13, 2013); anyways,
the source code was released to Comelec few days before May 13. Thus, that unsolicited
proposal was useless anyhow as the Comelec had already violated the law. In the first place,
why would Comelec interfere in the legal battle when in fact the democratic exercise then was
at risk by running an untested-uncertified Smartmatic’s AES? Comelec could have reverted to
pure manual elections!
3.4.1. Maricor Akol comment:
* Part of Brillantes's Psych War. It is not illegal to brag and make this Claim....but did he
actually place $10M in escrow? If he did not, then maybe we should not mention this.
3.5. Smartmatic’s deception in not declaring true ownership of the PCOS hardware and
software was kept secret to the public. It was made known only when Smartmatic sued
Dominion.
4. Illegal ‘Option-to-Purchase’ of Smartmatic PCOS machines used in 2010
4.1. Reference: GPPB’s opinion
The opinion of the Government Procurement Policy Board (GPPB) of the Department of Budget
and Management differed from Comelec’s intention to proceed with the OTP. In its letter to
Comelec dated March 12, 2012, GPPB states, “…as early as 18 December 2010, Smartmatic-
TIM unilaterally offered to extend the OTP until 31 March 2011. Comelec took no action on
the offer; hence, on 1 April 2011, Smartmatic-TIM offered, motu propio, a Revised and
Extended OTP proposed to be effective until 31 December 2011… The offer of 1 April 2011
Page 66 of 100
not having been accepted, Smartmatic-TIM made another offer dated 23 September 2011…
As in the previous offers, Comelec did not accept the last offer made by Smartmatic-TIM… As
in any other kind of contract…an option to purchase agreed to be valid and shall expire on a
certain date, i.e., 31 December 2010, shall cease to be effective unless extended prior to the
expiration of such option through the ‘mutual’ and ‘consensual’ agreement of both parties. It
is common acceptation in law and jurisprudence that a ‘contract must bind both contracting
parties, its validity or compliance cannot be left to the will of one of them… The contractual
relation between Comelec and Smartmatic-TIM…is deemed automatically terminated upon
expiration of the option on 31 December 2010. When the option to purchase expired…, 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… Consequently, the subsequent
extensions have no leg to stand on…as the original ‘offer’…was already non-existent.
Consequently, the succeeding offers made by Smartmatic-TIM…are regarded as ‘new’ offers
that need to comply with existing laws…before it may be accepted legally.
4.1.1. Maricor Akol comment: (* I think their excuse here was that since COMELEC was
using the PCOS machines in processing the Complaints and Protests from losing candidates,
they did not return the machines past their agreed Deadlines...so it was presumed to be
Comelec's exercise of their Option to Purchase, by default).
4.2. Pending response from GPPB
The present Committee on Electoral Reform and People’s Participation (CERPP) headed by
Sen. Imee Marcos has not received any plausible response from GPPB re their letter to
Comelec on March 12, 2012 since last year.
5. Illegal Direct Contracting with Smartmatic for the refurbishment of PCOS machines
5.1. Comelec Director Atty Esmeralda Amora Ladra
“... even insiders of Comelec are having big question marks about Smartmatic’s push in trying
to violate the Government Procurement Reform Act or RA 9184! Comelec’s Legal Department
Head, Director Esmeralda Ladra, said, “It behooves upon us to ensure that this Extension of
Warranty for the repair and maintenance of PCOS machines, which is a clear example of direct
contracting or single source procurement, be made to undergo the tests of validity under R.A.
9184.” Cesar Flores of Smarmatic insisted, “Smartmatic has the capability to handle the
refurbishing project, and it will be advantageous if Comelec awards the PCOS repair project
to Smartmatic instead of holding a public bidding.”
Reference: The one that got away. Retrieved December 16, 2020, from
http://www.manilatimes.net/one-got-away/149365/
5.2. Ex-commissioner urges Comelec to bid out PCOS upgrade contract.
A former election commissioner who handled the country’s first election automation on Friday
urged the Commission on
Elections (Comelec) to
bid out the contract to
refurbish the 80,000 vote
counting machines to be
reused in the 2016
elections.” It should be
bidded out. They need to
be transparent,” said
former Commissioner
Gregorio Larrazabal in a
statement on Friday.
Larrazabal said
Smartmatic was not in a
position to offer a
warranty since it was not
the manufacturer of the
machines. “If they are
not the manufacturer,
how can they warranty
the machines that they
did not produce? It’s not their company that produced the machines,” he said.’ Reference:
Jocelyn Uy (November 29, 2014). Ex-commissioner urges Comelec to bid out PCOS upgrade
contract, Philippine Daily Inquirer, Retrieved December 27, 2020, from
https://newsinfo.inquirer.net/653525/ex-commissioner-urges-comelec-to-bid-out-pcos-
upgrade-contract
Page 67 of 100
5.3. G.R. № 216098, April 21, 2015: Supreme Court voids Smartmatic deal: The IBP said
the Comelec cannot argue that the repair and refurbishment of the PCOS machines - first
used in the 2010 national and local elections, and the 2013 mid-term election - are not
covered by RA 9184.
6. The unresolved case of Bro. Eddie Villanueva
6.1. Manual Recount
6.1.1. The Manila Times, Aug. 12, 2014: “Judge Celso O. Baguio of Gapan City Regional
Trial Court-Branch 34 has declared that “per manual counting of the votes appearing in official
ballots used in Clustered Precincts Nos. 19, 29 and 30 in Barangays Pias and Concepcion,
General Tinio, Nueva Ecija, candidate Eduardo Villanueva (Bro. Eddie) garnered a total of 900
votes as against the Comelec count of only 781 votes.” This is just a factual manifestation
that the STAR card failing grades of “1.2” and “0.29” in 2010 and 2013, respectively, given
by AES Watch to Smartmatic are actually confirmed (Manila Times, July 22, 2014)
(http://www.manilatimes.net/error-in-application/113465/). Surprisingly, it appears in the
manual counting conducted in the said precincts that Bro. Eddie is the leading senatorial
candidate followed only by Sen. Grace Poe. Woah! Could this be true also from Aparri to Jolo
if we do the manual count of Bro. Eddie’s votes? But how come that he was consistently №
19 in the Comelec count nationwide? The question now is—How valid is the 60-30-10 pattern
observed by Professor Lex Muga, also from AES Watch, now that the real score is coming
out?” Reference: http://www.manilatimes.net/time-change-secret-voting-public-counting-
svpc-instead-pcos/118526/
6.1.2. The Manila Times, Sept. 2, 2014: THE staggering difference of “otso-otso” (88)
between the PCOS count (i.e. 278) and physical count (i.e. 366) for the votes of senatorial
candidate Eduardo Villanueva (Bro. Eddie) at Precinct 19 of Barangay Concepcion, General
Tinio, Nueva Ecija in the 2013 elections was finally revealed during the Joint Congressional
Oversight Committee (JCOC) hearing on August 28, 2014 at the Senate. The record showed
that for said precinct, 202 ballots were unused, PCOS scanned 665 ballots vis-a-vis physical
count of 664 and that the PCOS failed to transmit the election results to the municipal/city
board of canvassers or M/CBOC.
https://www.facebook.com/njcelis/media_set?set=a.10152648044166661.1073741926.546
351660&type=1.
In this regard, the JCOC, presided by Sen. Koko Pimentel and Cong. Senen Sarmiento, gave
Comelec and the petitioners ten days to reconcile the discrepancy with the decrypted ballot
images too. The theory Chairman Brillantes expounded during the first JCOC meeting on
August 14, 2014 was that the inconsistency was possible due to the appreciation of overvotes
in the court’s manual count of Villanueva’s votes. He was somehow correct when the
overvotes noted in the physical count was 13. However, the overvotes observed in those
ballots were ovals that were either marked with slash sign or encircled. But the fact remains
unchanged that “otso-otso” is a BIG difference between the automated and manual counts
considering that only one precinct was reviewed. Because of the huge discrepancy, he has
offered another theory stating that the ballots were tampered. OMG! How could the followers
of Bro. Eddie tamper with the ballots when the ballot boxes are under the Comelec’s control?
Atty. Anicia Marquez, who led Bro. Eddie’s followers in the petition to do a recount, countered
Brillantes’ second theory by saying that the CF cards are the ones that can be tampered with.
She based it on my statement in the said hearing that those cards are rewritable. I shared
with the JCOC that Smartmatic did not conform with the Terms of Reference of the Comelec
2009 bidding. Smartmatic should have delivered Write-Once-Read-Many (WORM) cards and
not CF cards. Once the WORM card is written with election results, the data therein cannot be
changed anymore. Commissioner Christian Lim followed up and said to JCOC that WORM
cards for PCOS machines are indicated in the Request for Proposal (RFP). Now that JCOC
learned about these rewritable CF cards, I heard so much noise on the floor that Smartmatic
would be facing new legal cases. It was a surprise to many attendees in the JCOC hearing
that Smartmatic did not comply with that crucial bidding requirement. And such great mistake
was not even corrected in the 2013 elections. Worse, Smartmatic got away from any legal
impediments in spite of constant prodding of AES Watch to Comelec about it. Surprisingly,
the Comelec Advisory Council (CAC) and even the Technical Evaluation Committee (TEC) have
not seen this mystery yet. The CAC and TEC are headed by the officials from the Department
of Science and Technology (DOST) and they should have detected such problem during the
test certifications of the PCOS machines in 2010. Will DOST take an action against
Smartmatic? AES Watch is requesting the attention of Sec. Mario Montejo, to kindly advise
USec Louis Casambre, CAC chair, and Director Denis Villorente, TEC Chair, to investigate this
WORM anomaly. On the other hand, Comelec may take its own legal initiative for the non-
compliance of Smartmatic with the RFP.”
Page 68 of 100
Reference: http://www.manilatimes.net/mysteries-behind-nos-88-76/123632/
Page 69 of 100
6.2. 87 votes for Villanueva unrecognized by PCOS machine; COMELEC: votes are valid
and not tampered
Reference: https://www.youtube.com/watch?v=LFv9aCDetOQ
6.3. Conclusion: The group of Atty. Marquez didn’t show up in the JCOC hearing anymore
for the final analysis of audit. There were murmurs around that they were called in Malacanang
a day before the JCOC hearing. Hence, this is still unresolved issue!
6.4. The consistent 19th place of Bro. Eddie nationwide is very much related to 60-30-10
phenomenon. Pls see item 8.2.
7. The ‘failed’ bidding supposedly for 2004 and 2010 automated election systems
7.1. Comelec’s intervention in the bidding: “In March 2009, Comelec started to bid out
P7.2 billion worth of AES project for the automation of 2010 elections. The joint venture (JV)
partnership of Total Information Management and Smartmatic (T-S) won the bid. On June 30,
2009, Comelec was set to sign the contract with the T-S. However, even before the set date
of signing, TIM had already written Comelec that it was quitting the JV and it had not signed
yet the JV document with Smartmatic. Then Comelec Chairman Melo stated, “If there is no
such document, who are we signing the contract with?” Melo gave them until 03 July 2009 to
settle their differences. The Securities and Exchange Commission (SEC) issued a certificate
of incorporation of T-S on July 8, 2009 and the contract signing with Comelec ensued on July
10, 2009. Notice that the SEC document was only released four months after the start of
bidding. This caught the attention of the group of Harry Roque and therefore filed a petition
to nullify the contract on the major ground that T-S “did not submit the required documents
during the bidding process that should establish the due existence, composition, and scope
of their joint venture, in violation of the Supreme Court’s holding Information Technology
Foundation of the Philippines, vs. Comelec (G.R. № 159139, Jan. 13, 2004).”
7.2. IT Foundation of the Philippines v. Comelec
Jurisprudence: G.R. № 159139, January 13, 2004 INFORMATION TECHNOLOGY FOUNDATION
OF THE PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO H. LOPEZ, AUGUSTO
C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY SALCEDO, and MANUEL ALCUAZ JR.,
petitioners, vs.COMMISSION ON ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS SR.;
COMELEC BIDDING and AWARD COMMITTEE CHAIRMAN EDUARDO D. MEJOS and MEMBERS
GIDEON DE GUZMAN, JOSE F. BALBUENA, LAMBERTO P. LLAMAS, and BARTOLOME
SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS, INC.; and MEGA PACIFIC CONSORTIUM,
respondents.
7.2.1. Decision (PANGANIBAN, J.):
There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the
law or jurisprudence;1 or (2) when it is executed whimsically, capriciously or arbitrarily out
of malice, ill will or personal bias.2 In the present case, the Commission on Elections approved
the assailed Resolution and awarded the subject Contract not only in clear violation of law
and jurisprudence, but also in reckless disregard of its own bidding rules and procedure. For
the automation of the counting and canvassing of the ballots in the 2004 elections, Comelec
awarded the Contract to “Mega Pacific Consortium” an entity that had not participated in the
bidding. Despite this grant, the poll body signed the actual automation Contract with “Mega
Pacific eSolutions, Inc.,” a company that joined the bidding but had not met the eligibility
requirements. Comelec awarded this billion-peso undertaking with inexplicable haste, without
adequately checking and observing mandatory financial, technical and legal requirements. It
also accepted the profered computer hardware and software even if, at the time of the award,
they had undeniably failed to pass eight critical requirements designed to safeguard the
integrity of elections, especially the following three items: They failed to achieve the accuracy
rating criteria of 99.9995 percent set-up by the Comelec itself. They were not able to detect
previously downloaded results at various canvassing or consolidation levels and to prevent
these from being inputted again. They were unable to print the statutorily required audit trails
of the count/canvass at different levels without any loss of data. Because of the foregoing
violations of law and the glaring grave abuse of discretion committed by Comelec, the Court
has no choice but to exercise its solemn “constitutional duty” to void the assailed Resolution
and the subject Contract. The illegal, imprudent and hasty actions of the Commission have
not only desecrated legal and jurisprudential norms, but have also cast serious doubts upon
the poll body’s ability and capacity to conduct automated elections. Truly, the pith and soul
of democracy—credible, orderly, and peaceful elections—has been put in jeopardy by the
illegal and gravely abusive acts of Comelec.
7.2.2. In 2004, the Supreme Court (SC) declared as void the P1.3-billion contract entered
into by the Comelec and Mega Pacific Consortium for the purchase of automated counting
machines for "clear violation of law and jurisprudence" and "reckless disregard of [Comelec's]
own bidding rules and procedure."
Page 70 of 100
https://www.gmanetwork.com/news/news/nation/151010/escudero-warns-of-a-repeat-of-
mega-pacific-mess/story/
7.2.3. The SC said that Mega Pacific was unqualified for the bidding because the company
was only incorporated 11 days before the submission of bids.
(https://www.gmanetwork.com/news/news/nation/166337/comelec-nixes-revival-of-mega-
pacific-machines/story/)
1.1.1.1 Maricor Akol comment:
* These two Cases are different. To clarify on the difference of the circumstances between
the Case of the IT Foundation of the Phil (ITFP) vs the Mega Pacific Consortium and the Case
filed against TIM-Smartmatic Consortium:
* The Bid was submitted by the Mega Pacific eSolutions , Inc but the Contract with COMELEC
was awarded to the Mega Pacific Consortium ( which was formed only 11 days before the Bid
in order to be able to qualify with requirements of the Bid...like for example, it used the
credentials of its Sub-Contractors like IBM ) However, the Consortium did not have the
required 3 years Audited Financial Statement and did not have the legal personality .( when
the papers to prove the legal entity of the Consortium could not be produced, I remember the
famous remark of the Supreme Court to COMELEC Commissioner Tuazon during the SC
Hearing, " What , you signed a P1.3 Billion Contract without looking at the papers of this
Consortium?" Therefore, the Supreme Court declared the Contract Null and Void.
* In the TIM-Smartmatic Consortium or Joint Venture (60-40 ownership) it was a legitimate
Corporation registered with SEC. that submitted the Bid and was the same company that was
awarded the Contract by COMELEC. Although the group of Harry Roque questioned the dates
of the awarding of the Bid and the Incorporation of the JV, the Supreme Court (maybe through
the request of one of their Peers, Jose Melo, who served the SC before being assigned as
Chairman of COMELEC) did not declare the Contract Null and void.
7.3. Smartmatic-Dominion PCOS machines had not undergone any pilot testing in the
country and should have been disqualified in the first place.
7.3.1. He [Sen. Escudero] also asked if the Comelec has already complied with the
requirements of the law before it can implement the automated elections system nationwide.
He said that one of the requirements is to launch pilot areas in at least two urbanized areas
in the country and two provinces each in Luzon, Visayas and Mindanao. He added that the
chosen system should have been tested in past elections before it can be implemented
nationwide.
Reference: Escudero warns of 'a repeat' of Mega Pacific mess (March 2, 2009). Retrieved
January 1, 2020, from https://www.gmanetwork.com/news/news/nation/151010/escudero-
warns-of-a-repeat-of-mega-pacific-mess/story/
7.3.2. About Smartmatic’s ownership of PCOS technology
Facts: 1. Smartmatic do not own the PCOS technology but it is rather owned by Dominion
Voting Systems, Inc. of Canada.
2. Smartmatic’s Direct Recording Electronic (DRE) machines were used in 2008 ARMM
elections. Smartmatic owns the DRE technology and they never had PCOS technology.
7.3.2.1. Maricor Akol comment: * The question being raised here is their violation of the Law
on Bidding [RA 9184]- regarding the ownership of the Technology. The Contractor is supposed
to own majority of the Technology and not be a mere Seller of the Technology.....We showed
a copy of the Smartmatic Web Site during the Senate Hearings which showed their DRE
Technology , and even compared their Technology to their claim of the inferior Optical Scanner
Technology . However, after we raised this, we noticed that they put down their web site and
modified this later. So, it will be hard to contest this violation because COMELEC Accepted the
Bid of Smartmatic and although we questioned it at that time, COMELEC waived this
requirement because of their convenient excuse of "lack of time" … and if changes were to be
made. It would jeopardize the holding of Elections.
7.3.2.2. See item 4.2: ‘Larrazabal said Smartmatic was not in a position to offer a warranty
since it was not the manufacturer of the machines. “If they are not the manufacturer, how
can they warranty the machines that they did not produce? It’s not their company that
produced the machines,” he said.’
8. Violations of the law, RA 9369
8.1. Comelec’s non-promulgation of the IRR since 1997 (non-compliance with Section 30)
8.1.1. "SEC. 30. Rules and Regulations. - The Commission shall promulgate rules and
regulation for the implementation and enforcement of this Act.”
8.1.2. Comelec’s claim that the General Instructions (GI) before any elections is the IRR!
8.1.3. “In the Joint Congressional Oversight Committee (JCOC) on AES on September 17,
2015, Ms. Evi Jimenez of CenPEG/AES Watch said, “…dahil po walang IRR ang RA9369, ang
mungkahi po naming ay siguro manggagaling din dito sa Committee ay gawin na po, i-fast-
track na ang IRR dahil from time to time, mula noong 2010 ay palaging naglalabas ng iba’t-
Page 71 of 100
ibang Comelec rules. Nag-iiba po iyan kaya subject to the decisions ng mga bagong set ng
commissioners. Isa po iyan sa nais namin at matagal na naming sisasabi, isang constructive
proposal iyan noon pa na hanggang ngayon hindi pa nagagawa.” After nineteen (19) years,
the new Comelec head, Chairman Andy Bautista, addressed the IRR issue by replying to
Jimenez, “…why don’t you provide us with the draft IRR which the Commission can now
consider?” Jimenez responded, “…Bukod sa hindi namin ito trabaho at dapat trabaho ng
gobyerno, ay magtulungan po tayo…In fact, we have presented a lot of amendments—
proposed amendments and proposals pero gawin po ng gobyerno iyong dapat gawin niya.”
Inattention to the required promulgation of the said IRR is negligence. If General Instructions
(GI) is what Comelec prefers, better yet amend the law and remove the word “promulgation”
and state in Section 37 the GI provision instead. That would surely make Comelec compliant
with RA 9369. However, if inaction of Comelec would continue, then we’ll have no IRR come
the 2019 midterm elections.” (manilatimes.net, July 25, 2016)
Reference: https://www.manilatimes.net/2016/07/26/opinion/columnists/nineteen-years-of-
inactionand-counting/276182/276182/
8.2. Failure to conduct test certifications by the Technical Evaluation Committee (i.e., non-
compliance with Section 11)
8.2.1. “The Committee shall certify, through an established international certification entity
to be chosen by the Commission from the recommendations of the Advisory Council, not
later than three months before the date of the electoral exercises, categorically stating that
the AES, including its hardware and software components, is operating properly, securely,
and accurately, in accordance with the provisions of this Act.”
8.2.2. See item 2.4 as one of the incidents: Comelec’s intervention in the legal battle –
source code was provided by Smartmatic to Comelec few days before the 2013 elections. That
means, test certification of the PCOS machines, election management system and
consolidation canvassing system could not be done anymore due to inability of Smartmatic to
deliver the source code in 2012.
8.3. Non-promulgation of IRR yielded misinterpretations of the provisions of the law
8.3.1. Non-generation of VVPAT from 2010 to 2013 (i.e., non-compliance with Section
6.e). Jurisprudence: G.R. № 222731, March 08, 2016 - BAGUMBAYAN-VNP (Volunteers for a
New Philippines Movement, Inc.), AND RICHARD J. GORDON, AS CHAIRMAN OF
BAGUMBAYAN-VNP MOVEMENT, INC., Petitioners, v. COMMISSION ON ELECTIONS,
Respondent.
8.3.1.1. A
petition for mandamus
may be granted and a
writ issued when an
agency "unlawfully
neglects the
performance of an act
which the law
specifically enjoins as a
duty resulting from an
office.
8.3.1.2. Oral
argument between
Sen. Dick Gordon v.
Comelec Chairman
Andy Bautista re the
printing of VVPAT.
8.3.2. Non-compliance with Section 7: "SECTION 7. Communication Channels for Electronic
Transmissions. - All electronic transmissions by and among the AES and its related
components shall utilize secure communication channels as recommended by the Advisory
Council, to ensure authentication and integrity of transmissions." Comelec never secured the
transmission from the precincts to municipalities, cities, provinces, and national board of
canvassing in the past four national and local elections, from 2010- 2019. Comelec argued
that they had iButton in their PCOS/VCMs for digital signing but they had the wrong
interpretation of digital signing of BEIs and they never had digital signing from the
municipalities and up.
8.3.3. Non-implementation of digital signing for Board of Election Inspectors (BEIs) and
Board of Canvassers (BOCs) even though the Information and Communications Technology
Office of the Department of Science and Technology (i.e., now called the Department of
Information and Communications Technology or DICT) offered their digital signing technology
to Comelec in 2013 and 2016.
Page 72 of 100
8.3.3.1. Executive Order № 810, s. 2009: INSTITUTIONALIZING THE CERTIFICATION

SCHEME FOR DIGITAL SIGNATURES AND DIRECTING THE APPLICATION OF DIGITAL
SIGNATURES IN E-GOVERNMENT SERVICES
All government agencies and instrumentalities providing electronic services to its clients shall
require the use of digital signatures in their respective e-government services to ensure
confidentiality, authenticity, integrity and non-repudiation of electronic transactions in
government.
Reference: https://www.officialgazette.gov.ph/2009/06/15/executive-order-no-810-s-2009/
8.3.3.2. DICT provides secure digital certificates to the public: “The use of digital
certificates is consistent with the Anti-Red Tape Authority (ARTA) Advisory № 01 series of
2020 which mandates government agencies to adopt fast-track measures—including the use
of electronic signatures—to ensure continuity of public services during this time. These efforts
also complement the intent behind Republic Act № 11469 or the “Bayanihan to Heal as One
Act” to promote efficiency among the public sector.”
Reference:
1. DICT provides secure digital certificates to the public, Retrieved January 6, 2021, from
https://dict.gov.ph/dict-provides-secure-digital-certificates-to-the-public/
2. Philippine National Public Key Infrastructure (PNPKI), Retrieved January 6, 2021,
https://dict.gov.ph/pnpki/
8.3.3.3. Gov’t agencies asked to use PNPKI for online transactions: “The Anti-Red Tape
Authority (ARTA) has issued a memorandum circular directing government agencies to use
the Philippine National Public Key Infrastructure (PNPKI), which utilizes digital signatures in
signing official documents. ARTA made the directive through Memorandum Circular № 2020-
06 released last August 27. It encouraged government instrumentalities to adopt the
Philippine National Public Key Infrastructure (PNPKI) developed by the Department of
Information and Communications Technology’s (DICT). The circular itself was electronically
signed by signatories from ARTA using digital certificates. The PNPKI, according to the DICT,
ensures confidentiality, authenticity, integrity and non-repudiation of electronic transactions
and documents. It allows users of public networks to exchange important data in a secure
manner. “The DICT appreciates ARTA’s efforts in promoting the use of PNPKI to ensure
reduced contact between employees of government agencies and their external clients. The
DICT has earlier offered its PNPKI services to various agencies to help them adopt to new
work arrangements and the new normal in public service delivery. With ARTA’s help, we
expect more government agencies to use digital signing of documents and avail of our PNPKI
services,” DICT secretary Gregorio B. Honasan II said. Recently, it was reported that 97% of
the Office of the Solicitor General’s workforce are already using the PNPKI service. The DICT,
however, said it is seeking to have more government agencies to avail and use electronic
signatures and the PNPKI service.”
Reference: Gov’t agencies asked to use PNPKI for online transactions (Sep5. 10, 2020),
Newsbytes.PH, Retrieved January 6, 2020, from (https://newsbytes.ph/2020/09/10/govt-
agencies-asked-to-use-pnpki-for-online-transactions/)
8.3.3.4. Non-compliance with e-Commerce Law (Section 30): BEIs and BOCs did not
use digital or electronic signatures from 2010 to 2019; that is, PCOS machines used i-Buttons
while none for the Consolidation and Canvassing System (CCS) computers/laptops at the
M/CBOCs and PBOCs. "Sec. 30. Authentication of Electronically Transmitted Election Results.
- The manner of determining the authenticity and due execution of the certificates shall
conform with the provisions of Republic Act № 7166 as may be supplement or modified by
the provision of this Act, where applicable, by appropriate authentication and certification
procedures for electronic signatures as provided in Republic Act № 8792 as well as the rules
promulgated by the Supreme Court pursuant thereto."
8.3.3.4.1. E-Commerce Act of 2000 or RA 8792: Section 5.e: “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.
IRR, RA 8792: Section 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.
Reference: https://www.set.gov.ph/resources/revised-rules-of-court/republic-act-no-8792/
Page 73 of 100
8.3.3.4.2. Rules on Electronic Evidence

A.M. № 01-7-01-SC.- RE: RULES ON ELECTRONIC EVIDENCE
EN BANC
RESOLUTION
Acting on the Memorandum dated 18 June 2001 of the Committee on the Revision of the
Rules of Court to Draft the rules on E-Commerce Law [R.A. № 8792] submitting the Rules on
Electronic Evidence for this Court’s consideration and approval, the Court Resolved to
APPROVED the same. The Rules on Electronic Evidence shall apply to cases pending after their
effectivity. These Rules shall take effect on the first day of August 2001 following their
publication before the 20th of July in two newspapers of general circulation in the Philippines.
17th July 2001.”
RULE 6: ELECTRONIC SIGNATURES
Section 1. Electronic signature. – An electronic signature or a digital signature authenticate
din the manner prescribed hereunder is admissible in evidence as the functional equivalent of
the signature of a person on a written document.
Section 2. Authentication of electronic signatures. …
Section 3. Disputable presumptions relation to electronic signature. ...
Section 4. Disputable presumptions relating to digital signatures. ...
Reference: https://www.set.gov.ph/resources/rules-on-electronic-evidence/
8.3.3.5. For the BEIs (i.e., non-compliance with Section 22)
8.3.3.5.1. Comelec-Smartmatic interpreted BEIs’ digital signatures as those generated by
the PCOS machines
8.3.3.5.1.1. Lito Averia: Even as the Supreme Court, in the case of Capalla v. Comelec (GR
201112), ruled that the PCOS machine is capable of producing digitally signed transmissions,
that capability generates machine digital signatures. Machine digital signatures have no place
in any automated election system. Machines, after all, are not endowed with free will to
perform a free and voluntary act. It must be emphasized, too, that no law in the Philippine
legal firmament accords legal recognition to machine digital signatures.
Reference: PCOS: Rule of the machines (August 5, 2014). Retrieved August 5, 2014, from
http://www.manilatimes.net/pcos-rule-machines/116849/
8.3.3.5.1.2. Maricor Akol comment: *I suggest a definition of the Term "Digital Signature"
should be placed in the Amendment to the AES Law, similar to what is defined in the E -
Commerce Law. Chairman Brillantes conveniently uses the excuse that the Supreme Court
has already resolved this issue, whenever we bring this up in the Senate Hearings.... but I
beg to disagree. During the hearing of our Case in the Supreme Court citing the violations to
the AES law by Smartmatic/ COMELEC, then SC Justice Antonio Carpio asked the Smartmatic
Lawyer Atty. Lazatin, " Do you have the Digital Signature" to which Lazatin immediately
answered "Yes". It was either he was ignorant of the true nature of what a Digital Signature
is as compared to Smartmatic's claim of their Machine Digital Signature called the I-Button …
or … he was coached to declare this. (such a Zarzuela, if you ask me....and I have my doubts
on a supposed "friend" who took part in this. As per Google, a digital signature—a type of
electronic signature—is a mathematical algorithm routinely used to validate the authenticity
and integrity of a message (e.g., an email, a credit card transaction, or a digital document,
like the Election Return that is transmitted from the Precinct by the BEI. Digital signatures
create a virtual fingerprint that is unique to a person (and created by the person, not the
machine). If only the audience in the Supreme Court were allowed to speak out and object to
Atty. Lazatin's reply, I would have objected. but I was prevailed upon by Gus Lagman that I
should keep quiet because I could be cited in contempt. Besides, I also noticed that Atty
Lazatin was not asked, before his testimony, " to take the Oath to tell the Truth and nothing
but the Truth" …
8.3.3.5.1.3. Lazatin was only referring to machine digital signature [of the BEIs] thru i-
Button of PCOS machine but not the digital signatures of the BOCs as the computers/ laptops
used for M/CBOCs and PBOCs didn’t have that i-Buttons!
8.3.3.6. For the BOCs (i.e., non-compliance with Section 25)
8.3.3.6.1. Comelec has been silent about the BOCs’ digital signatures - No explanation or
argument at all. They did not even argued that the CCS had i-Buttons!
8.3.3.7. Section 22/25: "The election returns/certificates of canvass 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 winning candidate."
8.3.3.7.1. In the absence of IRR, how do you interpret these two provisions of the
law?
8.3.3.7.1.1. Comelec argues that their PCOS/VCM digital signature are valid! Assuming that
their argument is valid, what happened to those election returns (ERs) not transmitted
electronically? Should those election results not electronically transmitted be deducted from
Page 74 of 100
the overall canvassed results because the basis for the canvassing and proclamation is the
electronically and digitally signed ERs?
Case of 76% ERs: “... Comelec was blaming the telcos (i.e., PLDT, Globe, etc.) last year
[2013] for the anomaly that only 76% of the PCOS [precinct count optical scan] machines
were able to successfully transmit and the 24% clustered precincts [i.e. 13 million votes
approximately out of 53Million registered voters] handed over their respective CF [compact
flash] cards to the M/CBOCs. But the telco representatives said in the JCOC hearing, and even
in last year’s media interviews, that their facilities were 100% available. Telcos said that PCOS
data is relatively small and would not create heavy traffic or pose any cellular network
problems. Besides, they provided a dedicated virtual private network not mixed with regular
data and voice traffic. The telcos elaborated that they provided the SIM cards to Smartmatic
and the latter distributed these cards nationwide. This could be the crux of the matter as only
Smartmatic knew what SIM card number operated with a particular precinct. So what’s the
fuzz about the 76%? What could have happened during the time when the CF cards of the
24% were delivered from the precincts to the M/CBOCs? Since CF cards are rewriteable,
there’s a high probability that the data therein could have been tampered as highlighted by
Atty. Marquez in the hearing. ...”
Reference: http://www.manilatimes.net/mysteries-behind-nos-88-76/123632/
Case of 9% ERs: In 2010, 9 percent of PCOS machines failed to transmit ERs and that
accounts to disenfranchised 4.5 Million voters or should have not been canvassed if not
electronically and digitally signed.
8.3.3.7.1.2. What about their Consolidation and Canvassing laptops used in the
municipalities, cities, and provinces to generate Certificates of Canvass (CoCs) that did not
generate digital signing for the Board of Canvassers? Does it mean that the CoCs electronically
transmitted from M/CBOCs were not valid as these were not digitally signed by the BOCs?
8.3.3.8. Declining the offer of the Department of Information and Communications
Technology (DICT), formerly known as the Information and Communications Technology/Dept
of Science and Technology and Commission on Information and Communications Technology.
“... Smartmatic also failed to use digital signatures as defined in RA 8792 [e-Commerce Law]
and REE [Rules on Electronic Evidence]. Surprisingly, in the last JCOC hearing on August 6,
2015, USec Louis Napoleon Casambre, Chairman of the Comelec Advisory Council (CAC) and
head of the Information and Communications Technology Office (ICTO)/DOST, said before
Chairmen Sen. Pimentel and Cong. Sarmiento, “Actually, even in 2013 we have been working
with Comelec as far as the digital signatures are concerned. I think in 2013 we issued 200,000
digital signatures. And yes, sir, the national public key infrastructure is already operational.
It’s being rolled out across government. And, of course, the Comelec is more than welcome
to use it.” Even USec Casambre knows the true meaning of digital signatures! But Comelec
didn’t want to listen because they only pay attention to the ill advice of Smartmatic that one
(1) “machine digital signature” was enough then for all 82,000 PCOS machines. Now,
Chairman Bautista and other commissioners have been enlightened. Comelec should
implement the digital signatures issued by ICTO in 2016 to authenticate that the election
results transmitted really originated from the BEIs and Board of Canvassers. ...”
Source: http://www.manilatimes.net/our-democracy-is-at-risk-what-are-the-mitigating-
control-measures/212915/
8.3.3.9. Maricor Akol comment:
* But they had an explanation for the non-implementation of the Digital Signature : During
Chairman Melo's Time - their excuse was 1st) that the Digital Signature was too expensive (
and that's probably how Smartmatic won the Bid - because their Bid did NOT include the cost
of the Digital signature while the Losing Bidders did since this was specified in their Pre-Bid
Bulletins and 2nd) they used the excuse of " what if the Teacher is absent?" , and I
remembered arguing with Chairman Melo's IT Consultant, "But that's the exception to the
rule. You can make contingency measures for those instances.”
8.3.3.10. Comelec is familiar with Digital Signing
8.3.3.10.1. Training conducted by MySecureSign
MySecureSign, Inc., a subsidiary company of PLDT, conducted the Digital Signing training for
the Comelec people in 2003 at PLDT, Boni Ave, Mandaluyong City. This training program was
part of the major training programs approved by former Comm. Rex Borra in preparation for
the 2004 automated elections. It was Lawrence Hughes who conducted the training then. See
figure below about the Course Outline as indicated in the provided training handout. Pls take
note of the laboratory exercises especially the Digital Signing part.
Reference:
https://www.facebook.com/photo?fbid=10151437649421661&set=a.10151429796581661
Page 75 of 100
8.3.3.10.1. 8.3.3.10.2.
MySecureSign Handout Page 1 of MySecureSign Handout
8.3.4. Disregarding the recommendation of the CAC (non-compliance with Section 9)
8.3.4.1. DICT (i.e., CICT or ICTO/DOST then) is the chair of the Comelec Advisory
Council (CAC) as per Section 8. Comelec hardly listens to the CAC. the CAC is actually the
technical arm of Comelec, why didn’t the latter closely collaborate with the former in coming
up with the Implementing Rules and Regulations (IRR) of RA 9369?
"Section 9. Functions of the Advisory Council. - The Council shall have the following functions:
1. Recommend the most appropriate, secure, applicable and cost-effective technology to
be applied in the AES, in whole or in part, at that specific point in time.
2. Participate as nonvoting members of the Bids and Awards Committee in the conduct
of the bidding process for the AES. Members of the Advisory Council representing the ICT
professional organizations are hereby excluded from participating in any manner in the Bids
and Awards Committee.
3. Participate as nonvoting members of the steering committee tasked with the
implementation of the AES. Members of the Advisory Council representing the ICT
professional organizations are hereby excluded from participating in any manner in the
steering committee.
4. Provide advice and assistance in the review of the systems planning, inception,
development, testing, operationalization, and evaluation stages.
5. Provide advice and/or assistance in the identification, assessment and resolution of
systems problems or inadequacies as may surface or resurface in the course of the bidding,
acquisition, testing, operationalization, re-use, storage or disposition of the AES equipment
and/or resources as the case may be.
6. Provide advice and/or assistance in the risk management of the AES especially when
a contingency or disaster situation arises.
7. Prepare and submit a written report, which shall be submitted within six months from
the date of the election to the oversight committee, evaluating the use of the AES.
8.3.4.2. Aside from DICT’s offer to use their digital signing technology, they
recommended not to use the PCOS machines in 2013 elections and thereafter.
Reference: CAC Resolution, June 2010
https://www.facebook.com/media/set/?set=a.10150683401741661&type=3
Page 76 of 100
8.3.4.3. Then Secretary Salalima declared that the 2019 elections be composed of
mixed technologies. However, Comelec still implemented Smartmatic solution without
considering other available technologies in the market. Reference: CAC Resolution № 2017-
001 (August 4, 2017)
8.3.4.4. In 2013,
the CAC recommended
that “1) The preparation
for the selection of AES
2016 technology should
be done as soon as
possible; 2) Comelec
study the terms of
reference to give
consideration to
Philippine-developed
technology; 3) There is a
need for voter’s
confirmation slip (or the
“receipt”) as third
redundant system to
protect the integrity of
the voters’ choice.”
These were all by-passed
by Comelec. It was only Sen. Richard Gordon who compelled Comelec to print the “receipt”
by taking the issue to the Supreme Court and obtaining a ruling. Hence, does Comelec need
the expertise of the CAC? It needed a vigilant senator to make Comelec move!
Page 77 of 100
Reference: https://www.manilatimes.net/2017/06/28/opinion/analysis/advisory-council-
real-value-comelec/335267/
8.3.4.5. “... the CAC, through its Resolution 2013-008,recommended the
implementation of digital signatures for the use of the board of election Inspectors (BEIs) and
board of canvassers (BOCs) in transmitting the election results electronically. A fundamental
question arises as to why the CAC recommended the implementation of digital signatures for
the 2013 elections. Moreover, in a report in January 2014, the CAC recommended again digital
signatures for the BEIs and BOCs for the 2016 and succeeding elections using the available
national public key infrastructure and not to use the machine digital signatures. Why? For the
detailed answers, you may refer to my column entitled “Comelec will not comply with e-
Commerce Law in 2016 elections (Last of 2 parts)” at https://www.manilatimes.net/comelec-
will-not-comply-with-e-commerce-law-in-2016-elections-2/247919/
“... then undersecretary Louie Casambre of the Information and Communications Technology
Office (ICTO) of the Department of Science and Technology (DOST) said during the joint
congressional oversight committee (JCOC) Senate hearing on the AES hearing on August 6,
2015, nine months before the 2016 elections. He said, “… Actually, even in 2013 we have
been working with Comelec as far as the digital signatures are concerned. I think in 2013 we
issued 200,000 digital signatures. And yes, sir, the national public key infrastructure is already
operational. It’s being rolled out across government…”
Reference:
https://www.manilatimes.net/2017/07/19/opinion/analysis/advisory-council-real-value-
comelec-2/339163/
8.3.5. No source code reviews in 2010 and 2013 and very limited access in source codes in
2016 and 2019 (i.e., non-compliance with Section 11.3 and Section 14)
"SECTION 14. Examination and Testing of Equipment or Device of the AES and Opening of
the Source Code for Review. - The Commission shall allow the political parties and candidates
or their representatives, citizens' arm or their representatives to examine and test.
"Once an AES technology is selected for implementation, the Commission shall promptly make
the source code of that technology available and open to any interested political party or
groups which may conduct their own review thereof."
The was limited access when source code review was done at the De La Salle University. This
was a result of no IRR promulgated!
8.3.6. No certification that the source code reviewed is one and the same as that used by the
equipment. (i.e., non-compliance with Section 11.5)
8.3.6.1. There’s no proof that the source codes (i.e., with corresponding hash codes) of
the Election Management System, vote counting machines and the Canvassing and
Consolidation System (CCS) in escrow in the Bangko Sentral ng Pilipinas were really installed.
Hash code of PCOS/VCM machines for every municipality is different from the rest. Just the
same, the hash codes for the CCS for every municipality or province are different from the
rest.
8.3.6.2. Incident: The digital forensics of the 60 PCOS machines seized in Antipolo
showed hash codes different from what was published by Comelec.
8.3.6.2.1. Maricor Akol comment:
*In the Case of the 60 PCOS machines "operating" in Antipolo, Annie Suzano (a Councilor
who was running for Mayor of Quezon City) was able to get hold of a PCOS Machine and an
Engineer to examine the equipment. But she was not allowed to do any Forensic Examination
of the Machine and was threatened to be charged with Election Sabotage.
The Problem here is that Comelec can commit anomalies but is protected by the Law and
anyone who questions them or tries to prove these anomalies committed by them is the one
that is subjected to being penalized by the Law. So Annie was forced to drop her investigation
and charges. Another instance is the Case of Manny Pinol - he found CF Cards preloaded with
results from Venezuela, COMELEC reversed the situation and instead blamed him for being
the one who wrote these in the CF Card (how can this be possible when he is not even familiar
with this technology Remember, this is the first time this Technology is to be used in
Elections....and even COMELEC did not know how to operate the System!!! and how on earth
will Pinol get Results of Venezuelan elections?) What he wanted to prove and show is that CF
Cards were pre-loaded with data.
8.3.7. Failure of the Joint Congressional Oversight Committee (JCOC) to submit any single
assessment of the implemented AES systems to the Congress in session since 2010 (i.e., non-
compliance with Section 33).
8.3.7.1. In Section 33, the JCOC is mandated to "…conduct a comprehensive
assessment and evaluation of the performance of the different AES technologies implemented
and shall make appropriate recommendations to Congress, in session assembled.”
Page 78 of 100
8.3.8. Absence of contingency plans (non-compliance with Sections 11.6 and Section 13)
8.3.8.1. Continuity plan
This was kept secret as no publication was posted.
"SECTION 13. Continuity Plan. - The AES shall be so designed to include a continuity plan in
case of a systems breakdown or any such eventuality which shall result in the delay,
obstruction or nonperformance of the electoral process. Activation of such continuity and
contingency measures shall be undertaken in the presence of representatives of political
parties and citizens' arm of the Commission who shall be notified by the election officer of
such activation.
"All political parties and party-lists shall be furnished copies of said continuity plan at their
official addresses as submitted to the Commission. The list shall be published in at least two
newspapers of national of circulation and shall be posted at the website of the Commission at
least fifteen (15) days prior to the electoral activity concerned."
8.3.8.2. “In its meeting on April 8 [2019], the technical working group of the JCOC was
advised by the technical evaluation committee (TEC), headed by DoST, that they would
submit the continuity plan to Comelec, but that never happened. Besides, there was no news
published by Comelec in at least two newspaper of national circulation and no posting at their
website regarding the said plan at least 15 days prior to elections. No copies were furnished
to political parties and other stakeholders. The only consolation was the promulgation of
Comelec Resolution 10497 defining the contingency measures on what to do or say when the
VCM malfunctioned.”
Reference:
The Manila Times. Retrieved May 22, 2019, from https://www.manilatimes.net/2019-
elections-assessment-worst/558175/
8.3.8.3. Section 11.6 6. The development, provisioning, and operationalization of a
continuity plan to cover risks to the AES at all points in the process such that a failure of
elections, whether at voting, counting or consolidation, may be avoided.
8.3.8.4. Comelec never had contingency plans
8.3.8.4.1. Case 1: We could have implemented manual elections in 2013. Facts: (1)
There’s a legal battle between Smartmatic and Dominion. (2) Source code of PCOS was not
submitted at least 6 months before Feb. 13 certification. It was actually submitted to Comelec
3 days before the 2013 elections. (3) GPPB declared that Option-to-Purchase (OTP) the 2010
PCOS machines was illegal. This is related to item 2.4 - Comelec’s intervention in the legal
battle. Brillantes then was faced with OTP and Legal battle dilemmas.
Analysis: “But what surprised AES Watch was the intervention of former Comelec Chairman
Brillantes when he, on behalf of the Commission on Elections (Comelec), offered to place $10
million in an escrow account and proposed that whoever wins in the Delaware case would get
the money. Brillantes’ desperate proposal was to have the source code released by Dominion.
However, at the time, the deadline to have it certified by the SLI Global Solutions on February
13, 2013, had already passed. The law prescribes that the source code be certified three
months before the elections, May 13, 2013. Thus, that unsolicited and indecent proposal was
useless anyhow as the Comelec had already violated the law. At this point, Brillantes could
have already stopped the use of the PCOS machines and reverted to manual elections [in
January 2013] rather than risk the country’s using an uncertified AES; that is, a computerized
system with unknown reliability, security, accuracy, and transparency. He should have known
that the Comelec had repeatedly violated the law in not having a certified AES in 2008 and
2010. His inutile proposal paved the way for committing the same mistake for the third time.
But he could have considered the January 2004 decision of the Supreme Court about the use
of the automated counting machines (ACMs) of MegaPacific. The SC stopped the automation
of the 2004 elections as the petitioners appealed that the ACMs did not meet Comelec’s
technical implementation requirements. So Comelec reverted to manual elections in 2004 and
they were ready then as part of their contingency plan. Unfortunately, the joint congressional
oversight committee (JCOC) on AES was so silent about this critical point of the project. The
JCOC did not intervene and had not checked on what the Comelec had been doing. Though
not compliant with the law already, Brillantes, together with Smartmatic and Dominion, held
a presscon on May 9, 2013, four days before the 2013 elections. He presented a CD containing
the source code and announced that its review may be started. Huh! Impossible! How can
you do the source code review in four days?”
Reference: https://www.manilatimes.net/2018/01/24/opinion/analysis/2019-elections-
laway-venezuelans-talino-filipinos-3/376030/
8.3.8.4.2. Fearless forecasts did happen: Any contingency plans in place?
None. Non-compliance with Section 3 - "SEC 3. Board of Election Inspectors. - Where AES
shall be adopted, at least one member of the Board of Election Inspectors shall be an
information technology-capable person, who is trained or certified by the DOST to use the
Page 79 of 100
AES. Such certification shall be issued by the DOST, free of charge." … “As serialized in this
column about the “Fearless forecasts” that undoubtedly happened, the Joint Congressional
Oversight Committee (JCOC) and even the Automated Election System (AES) Watch have
never seen or heard any contingency plan (e.g., Plan B, C or X) due to the Commission on
Election’s (Comelec) non-compliance with AES Law (RA 9369) and e-Commerce Law (RA
8792) and the recent malfunctioning of the Vote Counting Machines (VCMs) abroad for the
Overseas Absentee Voting.
(https://www.youtube.com/watch?v=7njI0c_ueT8).’
In the last two JCOC hearings this year on February 16 and March 23, AES watch didn’t see
any report from Comelec about the TEC certifications regarding the above six items. As of
this writing, almost three months after the due date and nearly days before the elections,
Comelec spokesman James Jimenez confirmed that the TEC has not yet issued any
certifications. And do you know the meaning of this? It is simply telling us that that the AES,
including its hardware and software components and the electronic transmission facilities, is
not yet certified and validated to be operating properly, securely, and accurately. In a press
conference last week, April 28, 2016, AES Watch emphasized this very alarming scenario and
pinpointed that our AES this coming national and local elections on Monday, May 9, 2016, is
at a very…very…very CRITICAL RISK level. Comelec never bothered to inform the public on
how they are going to address this risk like implementing contingency measures that should
have been rolling out at this time. This is also a manifestation that Comelec has no
contingency plan for non-certification of AES as mandated by AES Law; that is, the above
item 6 – The development, provisioning and operationalization of a continuity plan….
Remember what happened on May 3, 2010 during the Final Testing and Sealing (FTS) of PCOS
machines? The PCOS machines malfunctioned nationwide! It was a terrible disaster which
alerted Comelec to recall all the 76,000 CF cards of the PCOS machines. Why terrible? A case
in point was the FTS conducted in Makati wherein the votes of Binay and Mercado went to
Genuino. Another example are the unsuccessful transmission of election results (ERs) in 2010
(i.e., 9%) and 2013 (i.e., 24% of transmission) while telco companies said in the past JCOC
hearings that their facilities were fired up 100%. Hence, these few but serious experiences
are just manifestations of the absence of TEC certifications. What we have been hearing is
that the Comelec and its AES vendor, Smartmatic, have been hyping that they are 100%
ready for the May 9 elections. But do they say they’re ready because they have complied with
all the minimum system requirements to make the elections secure, transparent, accurate
and credible and that the TEC has completed the test certifications? NO! They are not saying
that. Because NONE of these requirements have been complied with! Moreover, Comelec has
not submitted any report to JCOC about their compliance with Section 3 of RA 9369 stipulating
that at least one member of the Board of Election Inspectors (BEIs) shall be an information
technology (IT)-capable person, who is trained or certified by the Department of Science and
Technology (DOST) to use the AES [non-compliance with Section 3]. Further, since there has
been no update given by Comelec to JCOC, AES Watch hasn’t seen or heard in any public
media voice anything [except The Manila Times] about this concern whether Comelec has
gotten any certifications of the BEIs from the DOST. But since JCOC will not convene any
hearings anymore before elections 5 days from today, the question now arises as to whether
the DOST will still provide a report to both Comelec and JCOC stating that the 92,500 BEIs
have been certified to be IT-capable people.”
Reference:
http://www.manilatimes.net/fearless-forecasts-did-happen-any-contingency-plans-in-
place/260061/
8.3.8.4.3. Brillantes: If they don’t want PCOS, let’s go back to manual. The CAC had
already recommended not to use the PCOS machines right after the 2010 elections. “If you
noticed, there are a lot of dropped calls recently and the connection is really bad,”
Llamanzares said, attributing it to the flurry of communication activities due to the election
and campaign period. “Can you imagine, come election day, the PCOS machines won’t just
be the problem. With the sheer volume of data being transmitted, there is really a big
possibility of signal problems,” said Llamanzares, a former member of Kontra Daya. JV Ejercito
said: “The glitches are a cause for concern. The Comelec has no alternative, no backup, no
manual system. “When the PCOS machines were introduced, it was thought that less human
intervention is better because there is less risk of tampering with the votes. But if there are
problems like these, what will be our fallback?” Ejercito asked.
Reference: Jocelyn R. Uy, TJ Burgonio (February 5, 2013). Brillantes: If they don’t want PCOS,
let’s go back to manual. Retrieved January 2, 2020, from
https://newsinfo.inquirer.net/352679/brillantes-if-they-dont-want-pcos-lets-go-back-to-
manual
Page 80 of 100
9. Other Areas for Consideration

9.1. Petition to the UN Human Rights Committee
Before the 2013 elections, Harry Roque, VP Tito Guingona, Bishop Broderick Pabillo, and Dr.
Temy Rivera led a group petition to the UN Human Rights Committee stating that “The
Philippines violated the Authors’ right to the free expression of their will as electors during
the 10 May 2010 automated elections, and continues to violate such right in its conduct of
the 13 May 2013 automated elections…” This statement was based on the following premises:
“The REPUBLIC OF THE PHILIPPINES is a party to the Optional Protocol to the International
Covenant on Civil and Political Rights (ICCPR)…The Republic of the Philippines has violated
Article 25 of the ICCPR - Every citizen shall have the right and the opportunity, without any
of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take
part in the conduct of public affairs, directly or through freely chosen representatives; (b) To
vote and to be elected at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the
electors; (c) To have access, on general terms of equality, to public service in his country.”
9.1.1. Petition in the UN Human Rights Commission.

9.2. The unexplained 60-30-10 phenomenon: Up until today, Comelec wasn’t able to
explain this phenomenon. Worst, no audit was conducted to investigate. “The following day,
May 14, 2013, AES Watch convened for a meeting to discuss a more pressing issue than the
formatting error. It was the discovery by Dr. Lex Muga, one of the AES Watch members, of
the 60-30-10 phenomenon which revealed that the nationwide election results showed 60
percent winning candidates from the Liberal Party, 30 percent from UNA and 10 percent from
the rest of the political parties. I saw it with my own eyes when Dr. Muga was still in the
process of gathering the data. Hence, AES Watch concluded that the unbelievable pattern was
statistically improbable. How did it happen? Former Comelec Chairman Sixto Brillantes’ only
reaction was that he would investigate the phenomenon. Up until he retired, there was no
investigation made. He just let it go! But among the academicians, the 60-30-10 pattern was
extensively debated. They said it was mathematically impossible. But for IT professionals, it
was merely an act of unauthorized re-programming of the canvassing and consolidation
system, as simple as that, no debates needed. Just like what happened in Episode III (2010
elections): the cases of faulty final testing and sealing a week before the 2010 elections and
the tampered computer program of the seized 60 PCOS machines in Antipolo were
manifestations of AES that had been meddled with. Even Comelec could not refute the AES
Watch findings then.”
Page 81 of 100
Reference:
https://www.manilatimes.net/2018/02/14/opinion/analysis/2019-elections-laway-
venezuelans-talino-filipinos-4/380024/
“Apart from the 60-30-10 pattern discovered by Dr. Lex Muga, former Comelec IT Director
Ernie del Rosario had observed an interesting 9-3 formula; that is, 9 winning candidates
coming from the LP and 3 from UNA. Del Rosario tipped off the AES Watch group, including
Muga, about it via SMS on the late evening of the election when PPCRV results reporting
stopped. On the other hand, Dr. Pablo Manalastas found that the precinct results downloaded
from the Comelec public access website differed from the same precinct results downloaded
on another day/time, in significant ways.”
Reference:
https://www.manilatimes.net/2018/03/07/opinion/analysis/2019-elections-laway-of-
venezuelans-or-talino-of-filipinos/384536/
9.3. The untoward incidents at PPCRV
9.3.1. Non-independence: Former Comelec Commissioners Rene Sarmiento and Goyo
Larrazabal were taken as top officials of PPCRV.
9.3.1.1. https://www.rappler.com/nation/ppcrv-chairman-former-comelec-
commissioner-sarmiento (Aug. 15, 2016)
“Former Comelec Commissioner Rene Sarmiento succeeds Ambassador Henrietta 'Tita' de
Villa, who co-founded election watchdog PPCRV in 1991.”
9.3.1.2. https://r3.rappler.com/video/21783-talkthursday-ppcrv-in-the-2013-elections
(Feb. 14, 2013)
Ana De Villa-Singson, Communications Head of PPCRV and daughter of PPCRV co-founder
Henrietta “Tita” De Villa, stated that Atty. Goyo Larrazabal was already connected with PPCRV.
9.3.2. Elections in 2010
9.3.2.1. The PPCRV
should drop use of
association with church
(March 17, 2013)
Reference: Retrieved March
17,2013, www.polbits.com
9.3.2.2. Lipa clergy cut ties
with PPCRV. “One of the
country’s largest Catholic
archdioceses has ended its
ties with the Parish Pastoral
Council for Responsible
Voting, the official citizen’s
arm of the Commission on
Elections. Lipa Archbishop
Ramon Arguelles, however,
said the archdiocese will
still work for credible and
orderly elections in Batangas province this coming May 13 elections. While cutting their ties
with the PPCRV, the archbishop clarified that it does not mean that they prefer working with
the National Citizens’ Movement for Free Elections over the church-based poll watchdog. “On
April 1, the clergy of Lipa decided to sever its link with the PPCRV. The archdiocese also
declares it does not work with NAMFREL,” Arguelles said in a statement Tuesday. “We are
however committed to work even harder to ensure honest, peaceful, credible and meaningful
elections in Batangas province and work for good governance thereafter,” he added. The
archbishop did not elaborate the reasons for dropping its support to the PPCRV headed by
Henrietta de Villa, former Philippine ambassador to the Vatican.”
Reference: http://www.cbcpnews.com/cbcpnews/?p=16857 (April 2, 2013)
9.3.2.3. PPCRV gets foreign funding, violates election law? (April 26, 2013): Pastoral Council
for Responsible Voting (PPCRV) may have violated a condition for its accreditation a citizens’
arm in the 2010 national polls. And to this day, the Commission on Elections (Comelec) has
yet to address a legal loophole that paved the way for such a situation. Documents obtained
by Rappler show that PPCRV got a donation amounting to P5.7 million from The Asia
Foundation (TAF), a nonprofit international development organization, for its volunteers’ poll
monitoring duties in the 2010, when the Philippines held the first nationwide automated
elections.
Reference:
http://www.rappler.com/nation/politics/elections-2013/27017-ppcrv-gets-foreign-funding-
violates-law
Page 82 of 100

9.3.3.1. PPCRV admits wrong senatorial count
Reference: https://www.youtube.com/watch?v=uGH1IMqboME
9.3.3.2. Lito Averia: In 2013, within
the first two hours of voting, the Parish
Pastoral Council for Responsible Voting
(PPCRV) announced that it had counted 12
million votes, an improbable number.
Smartmatic made a correction to the
program in the transparency server,
revealing in the process an intermediary
server, the function of which nobody knows.
Maricor Akol comment: This anomaly was
made obvious when we computed the
average no of votes tallied per Precinct was
8,000 votes, an impossibility because the
maximum number of voters per Clustered
Precinct is only 1,000 voters. The
Smartmatic Program in the consolidation of
votes for the Precincts were counting votes more than once. NAMFREL, which was also doing
a Vote Count, subjected the input data from Precincts to a Validation Program to make sure
there were no duplicate counts. Aside from lagging in our Tally versus the PPCRV Count, we
also noticed large numbers in the ER data,
which we were not prepared to input to our
Program, so we asked the Smartmatic
Programmer, Marlon Garcia, regarding these
large numbers found in the Precinct Count.
We were told to ignore these numbers and
without consulting COMELEC, he informed us
that these numbers were coming from an
"Intermediary Server" - one that COMELEC
failed to mention to us in the Schematic
Diagram of the System presented to us
during our Briefings. I think Marlon was not
prepared with our question because he was
also surprised when he saw our data.
Obviously, there was a bug in their Program.
I think,Marlon was not authorized to reveal
the existence of this Intermediary Server but since he couldn't explain the large numbers
running in the Hundred Thousands existing in the Precinct Counts that we got from the
Transparency Server, he had no choice but to tell the truth regarding the existence of this
"unknown " Server....so during the Senate
Hearing, Director Jun Tolentino was able to
come out with a "plausible " excuse. When
questioned in the Senate Hearing regarding
the existence of the Intermediary Server,
Jun Tolention came out with the convenient
excuse that since data coming from the
Precincts were encrypted, these had to pass
the Intermediary Servers for decryption.
(Another convenient excuse made by Jun
Tolention when questioned in the Senate
after the 2010 Elections regarding on the
different Dates and times in the
Transmission of ERs from the Precincts
(some before Elections and some after the
closing of Elections), his reply - " Kasi " naalog " ang Mga Machines during the Transport" ....
and I don't understand how people can be gullible enough to allow him to get away with these
excuses? (Try making "alog" your cell phone and see if It goes back one or two days. No, it
goes back to the date when the software was loaded, and not to one or two days prior.)
Therefore, during the Senate Hearing prior to the 2016 Elections, we requested that instead
of using the questionable Intermediary Servers, may we (the accredited Parties doing our
own Vote Counts) instead be given the decryption codes. Chairman Bautista said yes (maybe
just to appease us), but was obviously prevailed upon to do otherwise.
Page 83 of 100
9.3.3.3. The Mysterious WORKFILE SERVER at PPCRV!!!

Belinda Olivares-Cunanan:
Computer expert denounces to
JCOC on AES chair Koko
Pimentel tampering of election
returns in 2013 elections,
executed through “Workfile
server” inserted by Smartmatic
between the ‘Transparency
Server’ operated by PPCRV and
four authorized election data
recipients of election returns.
With Smartmatic’s shady record,
citizens have every reason to
dread tampered results in 2016
elections.
Reference:
http://www.polbits.com/2015/08/computer-experts-denounce-to-jcoc-chair.html?spref=fb
9.3.3.4. Belinda Olivares-Cunanan: Comelec’s justification for Smartmatic lease

contract for 93,977 PCOS, costing P9.6 billion, is it’s “running out of time” for 2016. But IT
experts assert that Comelec actually sat on preparations for 433 days? Here's clearer diagram
on flow of 2013 elections data, as filtered by “Workfile Server” set up by Smartmatic between
PPCRV's “Transparency Server” and dominant/minority parties and citizens’ groups. But this
“filter” also fed Comelec website, thus putting into serious question results of 2013 elections.
Despite outrageous offenses Smartmatic bags PCOS contract again for 2016.
Reference:
http://www.polbits.com/2015/08/comelecs-justification-for-award-to.html?spref=fb
* The two Tabloid Journalist who first reported this Printing work being done at the Holy
Family Printing Shop were gunned down on the afternoon when AESWatch held a Press
Conference at the Max Restaurant in UN Avenue where we revealed the existence of this on-
going activity .Maybe they were silenced .... but we were able to show proof of these "Fake
Ballots" wrapped in Manila Paper found in a Ballot Box in Dinalupihan, Bataan due to the
Protest filed by losing Gubernatorial Candidate Tong Payumo as witnessed by his friend Gus
Lagman. How many more of these Fake Ballots were used in the Elections , but were not
discovered because of the prohibitive costs of filing an Election Protest?
9.3.4.1. The ‘ñ’ conspiracy
Lito Averia: “... In a news briefing, Smartmatic’s Mr. Elie Moreno said that Mr. Marlon Garcia
had proactively taken action to correct misspelling of candidates’ names while Chairman
Andres Bautista said that the correction was cosmetic. Prior to correction, the names of
candidates like Osmeña and Señeres were displayed or printed as Osme?a and Se?eres. The
correction wasn’t that important. The error could not have caused a fatal failure in the AES.
Nobody really paid serious attention to the erroneous display or print because everybody
knew that Osme?a is Osmeña and Se?eres is Señeres, well, unless somebody raised hell over
the error, giving Mr. Garcia opportunity to act proactively. That proactive action is devoid of
authority. Mr. Garcia contravened the order made by Commissioner Christian Robert Lim
during the hearing of the Joint Congressional Oversight Committee on the AES on March 23,
2016. Responding to a question about the operations of the transparency server,
Commissioner Lim declared that “we are now prohibiting Smartmatic from interfering with
any of how the political parties will come out with the results (sic).” He did not even care to
inform the poll body, political parties, and all interested groups of what he was about to do.
He did not stick to security protocols, if such protocols are indeed in place. Is the Commission
in control? The claimed minor change that Mr. Garcia made cannot be taken lightly. If he can
effect a simple change, he also had the opportunity to change something else. Is there more
to the “ñ” correction than meets the eye? Following the claimed minor correction, it was noted
that vote counts for certain candidates had gone down, the difference credited to other
candidates. In an update on the night of May 14, 2016, PPCRV reported that the election
return count had gone down only to recover half an hour later. PPCRV said that only the poll
body can explain the anomaly but declared in the same breath that the election results had
passed its “anomaly test.” Anong mali? In a mid-afternoon update the following day, it was
Page 84 of 100
reported that there were discrepancies observed between the official canvass reports and the
unofficial reports generated from the transparency server. Former COMELEC Commissioner
Gus Lagman has consistently said that tampering of the AES by an insider is more likely than
hacking by external attackers. And Mr. Garcia just proved Mr. Lagman right when he, without
authority, implemented a program script in the transparency server which is under the care
of the PPCRV.
Reference: https://www.manilatimes.net/2016/05/17/opinion/columnists/topanalysis/the-n-
conspiracy/262624/
9.3.4.2. Violation of Section 35
9.3.4.2.1. “Section 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 ...
(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 ...”
9.3.4.2.2. Cases of Section 35 violation in 2013 and 2016 elections: “Former Comelec
Commissioner Gus Lagman said it was not the first time that Smartmatic changed election-
related codes. Lagman recalled that Smartmatic project manager Marlon Garcia did the same
thing in 2013 when mid-term polls were held. Garcia claimed the editing of script was only
meant to replace “?” that appeared on the name of a senatorial candidate, to “ñ” and has no
effect on the votes received by candidates. But, according to Lagman, no one will know if the
changes done by Garcia were only limited to changing the “?” to “ñ.” ... “What is clear is that
Smartmatic was able to open and made some changes on the system without even asking
permission from the poll body,” Lagman noted. He said Garcia’s actions clearly showed that
the automated election system is “very vulnerable” to internal tampering. “Marlon Garcia
proved several times that I’m right in saying that it is vulnerable to tampering by an insider
and he should be held liable for his actions,” the former Comelec official added. “How could
we know that no changes were made? We will not know,” he said. In 2013, Garcia reportedly
changed the scripts of the unreviewed source code at the Command Center of the accredited
poll watchdog Parish Pastoral Council for Responsible Voting after about 12 million votes for
the senatorial elections have already been received just two hours after the voting closed.”
Reference:
Pilapil, J. R. & Antiporda, J. (2016). VP votes may have been manipulated. Retrieved May 17,
2016, from http://www.manilatimes.net/vp-votes-may-have-been-manipulated/262619/
9.3.4.2.3. Guanzon: ... They [Smartmatic] should be liable to the people of the
Philippines. They were not supposed to change anything without our knowledge and
permission. ...
Reference:
Comelec may ban Smartmatic from future elections. Retrieved January 19, 2021, from
https://www.youtube.com/watch?v=CfMDOA2BTIM&t=38s
9.4. Altered election results due to Digital Lines in 2013 elections
9.4.1. Lito Averia: “... Eleven of 234 PCOS is 4.7 percent. Extrapolating, 4.7 percent of close
to 78,000 PCOS deployed in the 2013 elections translates to about 3,666 PCOS that could
have generated digital lines on ballot images. If the average turn out per PCOS was 600
voters, a total of 2,199,600 ballots could have potentially been affected! Even if only seven
of the eleven PCOS examined were found to have digital lines cutting through the ovals, again
by extrapolation, a total of 1,399,745 ballots could have been affected. Director Villorente
also reported that not all the ballots in the PCOS examined had digital lines on them but he
didn’t give a number. So, let’s assume that only 25 percent of the ballots that went through
the PCOS that generated digital lines had digital lines that crossed the ovals. That translates
to 349,937 ballots! Let’s face IT! The 2013 election results could have been altered by PCOS
generated digital lines on ballot images. The Comelec must not allow this to happen again.”
Reference:
https://www.manilatimes.net/2014/10/07/opinion/columnists/altered-election-
results/132588/
Page 85 of 100
9.4.2. JCOC Hearing on September 18, 2014
“Brillantes: Iyong makina ho ang may glitch. Makina ho iyon.”

9.4.3. “... during the Committee on Electoral Reforms and People Participation (CERPP) on
December10, 2013. Engineer Denis Villorente reported that out of the 234 PCOS machines
that underwent random manual audit (RMA) by the RMA Committee, 11 were found to have
discrepancies greater than 9 between the PCOS count and manual count that were referred
to them for root cause analysis. Lo and behold, out of 11 machines, 7 were found to have
digital lines over the ovals of the decrypted ballot images that virtually added votes to those
candidates affected and the 4 were reported to have no effect. What could have caused these
digital lines? As quoted in the transcript:
Villorente: We found…a foreign material in the Mylar film on the PCOS scanner…we speculate
that the foreign material came from the ballots that were scanned and got stuck in the
Mylar…the large variance as…seen in the seven is…generated because of foreign material
stuck inside the PCOS machine…
Chairman (Sen. Koko Pimentel): “What alarms me is you examined only 11 and found seven.
Actually, you found all machines generating lines, but in your opinion, the four did not affect
the results…
Villorente: Let me cite some numbers. Yung Bacoor, Cavite, total number of registered voters,
729; total number of voters who voted, 376; 235 of the ballots had no lines; 119 had lines
but no effect on the result.
Chairman: So, 22 ballots were affected by the lines…
Pablo Manalastas: I’m very worried…that a big percentage of the machines were generating
unwanted lines on the (image) ballots…But the fact that the machines are so bad that they
Page 86 of 100
generate unwanted lines–In fact, if you vote, the Comelec will tell you, “Don’t make any marks
on the ballot. If the machine itself is making the marks, we should throw the machines away.
Chairman: We could have also accidental winners. Kasi…you found it in 11 machines, we could
not say that this did not also happen in countless other machines, in thousands other
machines, hindi ba?
Comelec Commissioner Christian Lim: …ngayon ko lang narinig…kung ano ‘yong cause of that
foreign object, how it affected all these 11…
Chairman: Seventy-seven thousand i-minus natin iyong 230 something…You’ll have to
examine the 77,000 machines in that manner to determine whether or not they generate
lines? Are you alarmed with the…
Lim: Yeah, I’m concerned. Ngayon ko lang narinig na may ganon pala.”
Why did it take seven months for the Comelec to know the initial results of the TEC findings?
... the Joint Congressional Oversight Committee (JCOC) on the automatic election system
(AES) was finally convened on August 14, 2014 to discuss the Comelec’s assessment of the
2013 elections as mandated by the AES law (RA 9369). Let me just quote some of the
highlights of the hearing:
“Chairman (Senator Pimentel): So, the (Comelec) Chairman (Brillantes) mentioned at least
three problems…PCOS machine replacements, CF card replacements, and the failure to
transmit to the transparency server… But… we were briefed by the RMA committee…there
was a mention of digital lines being created by the machines…Because if machines create
digital lines, it may affect…
Brillantes: Yes, Your Honor. This is part of the enhancement that we’re trying to resolve in
the coming 2016 election…there are two factors that has to be considered in determining what
happened to these lines…it could have affected the Mylar or it could have been affected by
the marking pen…
Chairman: Did we notice digital lines in the 2010 elections…
Brillantes: …there was no report of any lines in the 2010 elections. This came out in the 2013.
Chairman: So, as of now…we cannot pinpoint the cause of the digital lines.
Brillantes: …it’s either the marking pen or the Mylar itself. We are trying to solve the problem.”
Former Comelec lawyer, Melchor Magdamo, even mentioned that the digital lines were already
detected during the 2010 elections. He said: “Yung lines na yan, I pointed it out as early as
2010. Ang tawag ko doon, lines lang! Mas malalim lang ang nakita ng DOST, digital lines.”
After a month, the JCOC convened on September 18, 2014. As usual, Comelec didn’t give any
specific root cause of the problem. I quote:
“Senator Cayetano: …Anong ibig ninyong sabihing puwedeng mangyari? Puwedeng mangyari
po, apat lang ang binoto ng isang tao pero labindalawa po ang bibilangin noong makina?
Brillantes: Tama ho iyon…paisa-isa, mayroon hong nangyayaring ganoon.
Cayetano: So, you mean, Mr. Chair, puwedeng nakaupo ako ditto sa Senado hindi naman
pala ako binoto ng tao, hindi cheating iyon?
Brillantes: Hindi ho cheating iyon. Puwede hong mayroon nagkamali ng kuwan. Iyong makina
ho ang may glitch. Makina ho iyon.
Chairman (Pimentel): …as a candidate, ayoko…i-digital lines even if I appear to be a
beneficiary of that digital line…So, that’s why whether candidate or ordinary citizen, we want
an automated election system which does not generate digital lines…What do we call this body
that you will create to study this phenomenon of digital lines na in three months…Committee
on Digital Lines (CDL)…
Brillantes: In three months. Lagyan na ho natin ng specific deadline…Before Christmas.”
Come December 2014 and beyond, the digital lines issue were never heard of again. AES
Watch didn’t see even a shadow of the CDL members.”
References:
https://www.manilatimes.net/2018/03/28/opinion/columnists/topanalysis/2019-elections-
laway-of-venezuelans-or-talino-of-filipinos-2/388986/
Digital lines in decrypted image in ballots used in "dagdag-bawas" 2013 elections. Retrieved
January 5, 2021, from https://www.youtube.com/watch?v=fXWh38KQORM
9.5. Unresolved issue re Non-stop printing of ballots
9.5.1. “Another mind-boggling mystery that was denied by Comelec was the nonstop
printing of ballots at the Holy Family Printing on Congressional Road in Quezon City sometime
in July 2013. AES Watch and a former Comelec lawyer, Melchor Magdamo, questioned it as
the elections had been over more than two months ago! Magdamo said: “So there was a
shortage of eight million ballots so it’s possible they needed to fabricate eight million ballots!”
Reference:
https://www.manilatimes.net/2018/03/07/opinion/analysis/2019-elections-laway-of-
venezuelans-or-talino-of-filipinos/384536/
Page 87 of 100
9.5.2. Atty. Melchor Magdamo’s affidavit submitted on Sept. 10, 2013 to Comelec’s Fact
Finding Committee under En Banc Resolution № 9760.
9.5.3. Maricor Akol comment: * The two Tabloid Journalist who first reported this Printing
work being done at the Holy Family Printing Shop were gunned down on the afternoon when
Page 88 of 100
AESWatch held a Press Conference at the Max Restaurant in UN Avenue where we revealed
the existence of this on-going activity. Maybe, they were silenced .... but we were able to
show proof of these "Fake Ballots" wrapped in Manila Paper found in a Ballot Box in
Dinalupihan, Bataan due to the Protest filed by losing Gubernatorial Candidate Tong Payumo
as witnessed by his friend Gus Lagman. How many more of these Fake Ballots were used in
the Elections, but were not discovered because of the prohibitive costs of filing an Election
Protest?
10. Pending cases in the Ombudsman
The cases filed by Philippine Computer Society (PCS) and AES Watch has been pending until
today. PCS and AES Watch never received any single letter from the Ombudsman re their
decision or any possible hearings.
10.1. Philippine Computer Society
Received by Ombudsman on June 10, 2010, 4:10pm.
Included in the case is the easy manipulation of the PCOS machines externally as explained
in the digital forensic analysis.
Page 89 of 100
10.2. AES Watch filed in the Ombudsman on June 18, 2013 for failure of Comelec to
implement the safeguards in the law and for entering into contracts grossly disadvantageous
to the government and the electorate.
References:
Punongbayan , M. (2013). Comelec chief to face more raps. Retrieved June 18, 2013, from
http://www.philstar.com/headlines/2013/06/18/955227/comelec-chief-face-more-raps
Ramirez, J. (2013). AES, Guingona accuses former Comelec officials of rigging 2010, 2013
elections. Retrieved on June 19, 2013, from http://mb.com.ph/
News/National_News/16535/AES,_Guingona_accuses_former_Comelec_officials_of_rigging_
2010,_2013_elections#.UcIvkOc3D9U
Salamat, M. (2013). Ombudsman asked to probe Comelec’s Brillantes, et al, for their
impeachment. Retrieved June 19, 2013, from http://bulatlat.com/main/2013/06/
19/ombudsman-asked-to-probe-comelecs-brillantes-et-al-as-preparation-for-his-
impeachment/
Punongbayan , M. (2013). 3rd complaint filed vs past, incumbent Comelec officials.
Retrieved July 5, 2013, from http://www.philstar.com/headlines/ 2013/07/05/ 961797/3rd-
complaint-filed-vs-past-incumbent-comelec-officials
11. Writ of Habeas Data
“As a sequel to the case filed on June 2013, AES Watch filed a petition on July 3, 2013 for
habeas data, not with the Ombudsman, but before the Supreme Court: “The petition involved
the P30 million intelligence funds and threats from the Comelec … against critics of the
defective Smartmatic PCOS technology used in the 2010 and 2013 elections. This
petition…seeks this Honorable Court’s protection over well-oiled program by key members of
a constitutional body…to place under surveillance or spy on, its perceived “enemies,” who are
actually no more than ordinary citizens concerned about electoral reforms in the country.
Such a program, by their own admission supported by a P30-million intelligence fund, is not
only unconstitutional because it stems from a misalignment of public funds…but above all
because it violates the right of citizens to free expression and the right of citizens to privacy.
(http://www.harryroque.com/writ-of-habeas-data/)
Page 90 of 100
In a hearing at the Court of Appeals, AES Watch presented three checks issued to former
Comelec Commissioner Gus Lagman as evidence that funds were used as intelligence and
confidential funds. Lagman said that such fund was like the infamous Priority Development
Assistance Fund or the congressional “pork barrel.” AES Watch accused Brillantes of hinting
that their members were under surveillance. AES Watch counsel, lawyer Harry Roque, said
then: “Tanging Comelec lamang ang umamin na ginamit ang intel fund nila laban sa aming
mga, diumano, kalaban at saboteurs ng election.” Lagman on the other hand retorted, “Ano
ba dapat ang imbestigahan? At meron P30 million binigay sa kanila ng Malacañang, para
gastusin sa pag iimbestiga sa amin!” (https://www.youtube.com/watch?v=vTYNXBRo5sQ;
https://www.youtube.com/watch?v=3a88TOiMuNQ)”
References: https://www.manilatimes.net/2018/03/07/opinion/analysis/2019-elections-
laway-of-venezuelans-or-talino-of-filipinos/384536/
12. Summary of Brillantes’ challenges:
12.1. Illegal OTP
12.2. Illegal direct contracting with Smartmatic for the refurbishment of PCOS machines
12.3. Legal battle of Smartmatic-Dominion case
12.4. Unresolved issue re Digital lines
12.5. Unresolved issue re Non-stop printing of ballots
12.6. Writ of habeas data
12.7. 60-30-10 phenomenon
12.8. AES Watch case filed in the Ombudsman against Comelec
12.9. Bro. Eddie Villanueva’s case
12.10. Violations of RA 9369, RA 8792 (e-Commerce law), and RA 9184 (Procurement
Act)
13. The Hacking of Comelec: The ComeLEAK case weeks before 2016 elections
It goes without saying that Comelec never protected their IT infrastructure and its databases.
“… The decision promulgated by the National Privacy Commission provides a glimpse into the
failings of the COMELEC that led to the COMELeak incident.
First, despite the claims that the COMELEC website and the public-facing applications known
as Precinct Finder and Post Finder had embedded security features, all had vulnerabilities
which were exploited by malevolent actors who identified themselves as Anonymous Ph and
LulSecPinas.
Second, despite the claims that the COMELEC information infrastructure was protected by
three layers of firewalls and intrusion detection systems, exfiltration of databases was not
detected and data traffic during the period of exfiltration was left unmonitored.
Third, data protection policies and programs had not been put in place.
Fourth, a data protection officer had not been assigned. None of the commissioners or
executive officers of the poll body took on the responsibility to ensure that voters’ data was
protected against unauthorized access.
Fifth, all the claimed security measures were put in place after the COMELeak incident had
occurred.
Sixth, there was an attempt to conceal the scope and magnitude of the COMELeak incident
by consciously downplaying it, casting doubt on the genuineness and accuracy of the data
illegally accessed and copied.
Seventh, there was delay in notifying the National Privacy Commission (NPC) of the incident
despite the mandatory reporting requirement of the Data Privacy Act.”
Reference:
Lito Averia, COMELeak: The NPC decision. Retrieved January 25, 2017, from
http://www.manilatimes.net/comeleak-npc-decision/308643/
14. Statement of President Digong Duterte in 2019 to get rid of Smartmatic
References:
Chad de Guzman (Mary 30, 2019). Duterte to COMELEC: Dispose of Smartmatic. Retrieved
January 7, 2021, from https://cnnphilippines.com/news/2019/5/30/Rodrigo-Duterte-
COMELEC-Smartmatic.html
Page 91 of 100
Darryl John Esguerra (June 6, 2019).Duterte urges Comelec anew to get rid of Smartmatic,
Retrieved January 7, 2021, from https://newsinfo.inquirer.net/1127655/duterte-urges-
comelec-anew-to-get-rid-of-smartmatic
15. Studies of CenPEG re risks in implementing AES
15.1. EU-CenPEG Project 3030
15.2. Books: Was your Vote Counted? & Hacking our Democracy
15.3. STAR Cards

16. 2008 ARMM Elections
Page 92 of 100
Page 93 of 100
17. 16 M failed to vote for party-list, missed names on back of ballot

Page 94 of 100
Source: From Ernie del Rosario:

Massive Ballot Snafu
Karol Ilagan (Philstar.com) - August 14, 2019 - 4:17pm
May 2019 elections: Fraud-free? Fault-free?
Failed to pick a party-list group in the last elections?
You weren’t the only one. Official figures indicate that those who voted in the May 13, 2019
polls but didn’t select or weren’t able to select any party-list organization to be part of the
18th Congress could reach nearly 40 percent of the total. That’s quite a leap from the
undervoting rate for the party-list election in 2016, which is estimated to be around 20
percent.
Data from the Commission on Elections even reveal four provinces as having undervoting
rates above 50 percent in the recent party-list race: Zamboanga del Sur, Siquijor, Zamboanga
del Norte, and Negros Oriental. Thirty-nine provinces recorded undervoting rates between 40
and 49 percent, while most of the rest reached 30 percent.
Six provinces also had their party-list undervoting rates going up by more than 25 percentage
points from 2016 to 2019: Camarines Norte, Guimaras, Mountain Province, Nueva Vizcaya,
Sorsogon, and Zamboanga del Sur. Mountain Province recorded the highest surge in party-
list undervoting, shooting up from 20.52 percent in 2016 to 49.60 percent in 2019, or a
difference of 29.08 percentage points.
Comelec’s Election Records and Statistics Division (ERSD) data show that in the 2016 polls,
only one province had a party-list undervoting rate that went beyond 40 percent: Batanes,
with 42.64 percent. Ten had rates between 30 and 37 percent. (Batanes figures went missing
in Comelec ERSD 2019 elections file given to PCIJ. The Election Office in Batanes apparently
hasn’t submitted its data to Comelec as of this writing.). An "undervote" refers to situation in
which a voter selects less than the maximum number of seats allowed for a position. For a
single-slot position such as the party-list poll, an undervote for means that no vote was cast
or no oval was shaded in the ballot for that post. (An overvote, meanwhile, happens when a
voter chooses more candidates than the maximum number allowed.) Undervoting happens
every election across all positions; a voter might choose to not fill up all the maximum slots
allowed for a multi-slot position or just decide that he or she will not vote anyone for a
particular post. But in the May 2019 elections, a change in the ballot layout is being eyed by
some as one of the main reasons why the party-list polls suffered what is looking like major
undervoting.
Page 95 of 100
Didn’t notice list

“Hindi ko naisip na wala pala (I didn’t notice that the party-list section wasn’t there),” says
Cecille Marinda, referring to the front of the ballot. “Hinanap ko sana (I should have looked
for it).” Marinda, from Cavite City, had gone out to vote with her husband and their two grown
children. She realized she had missed choosing among the party-list groups in the running
only the following morning, when she and her colleagues were comparing notes on how each
of them had voted. Marinda says that it turned out her husband didn’t get to vote for any
party-list organization as well. Since 1998, when Filipinos began voting for party-list groups
to participate in Congress, the Comelec had put the partylist-organization candidates on the
front of the ballot, almost always after the congressional district candidates. The back of the
ballot was always reserved for the local races. That made for a very long ballot, of course.
For the 2019 polls, however, Comelec decided to put the party-list groups on the back of the
ballot, and the rest of the other positions on its front, apparently to save on paper. Some
party-list groups and observers say that the change in the ballot’s layout could have caused
many voters to overlook the party-list race. Several party-list organizations that had seats in
the 17th Congress but were shut out this time around even blame the change for their loss,
while there are those that won in the May polls that say that it prevented them from having
more seats in the House. Former AGRI Party-List Rep. Orestes T. Salon has been quoted by
BusinessWorld as saying that his group had more than 800,000 votes in the 2016 elections,
but had only 133,000 votes in 2019. A report by CNN Philippines meanwhile had Alfredo A.
Garbin Jr. of Ako-Bicol grousing about the placement of the list of party-list organizations on
the ballot. “Nilagay niyo ho sa likod eh (You placed it at the back),” CNN Philippines quoted
Garbin as saying. “And the numbers (are) very telling. If I’m not mistaken, 27 million total
votes cast in the party-list election out of 63 million registered voters. Sobrang bagsak ang
boto sa (There is a huge drop in votes for) party-list as compared to 2016 election."
AGRI no longer has any slots in the House while Ako-Bicol now has just two, instead of its
previous three.
Incomplete stats
The party-list system, designed to afford and guarantee the marginalized sectors of having
representation in Congress, allows 20 percent of the House of Representatives to be made up
of representatives of these groups. The number of seats allocated per party-list group is
determined by the percentage of votes it gets against the total votes cast for all the groups.
Under the law, a winning party-list group can secure a maximum of three seats. A total of
134 party-list groups ran in the 2019 polls. Comelec proclaimed 51 as winners, with the top
two party-list groups getting three seats, while the next six other organizations got two seats
each and the rest of the 43 groups one seat each. The current House of Representatives thus
has 61 seats occupied by only party-list groups. In 2016, only 46 groups were proclaimed
winners in the party-list elections, taking a total of 59 seats in the 17th Congress. Voting
statistics from Comelec’s ERSD are unfortunately incomplete, however. For instance, the files
Page 96 of 100
it gave PCIJ for the 2016 elections excluded nine provinces and five Metro Manila cities. Three
provinces meanwhile were not included in the 2019 files. Interestingly, there were no common
omissions between the data covering the two elections, except for the overseas votes, which
were absent in both files. (Comelec ERSD does not have undervoting data from 2013 and
2010.) The undervoting rate is computed by taking the percentage of the number of
undervotes from the number of total valid votes or number of actual voters. Based on the
available figures, out of the 34.6 million Filipinos Comelec files show as having voted in the
2016 polls, 6.9 million or about 20 percent did not choose any party-list organization for
Congress. In the May 2019 elections, 15.9 million out of 42.7 million voters – or 37.7 percent
– did not select a party-list group. The undervoting rate for the 2016 elections, using available
figures, would then be 20.08 percent, and for 2019, 37.37 percent. PCIJ tried to make the
data more comparable by taking out the all the areas Comelec does not have figures on, or a
total of 15 for each election year. The results were undervoting rates of 20.37 percent for the
2016 polls and 37.74 percent for the 2019 elections, or an increase of 17.37 percentage
points. Comelec also computes the ballot fill-up rate by taking the percentage of the votes
obtained by all candidates from the total valid votes. The party-list position had the lowest
fill-up rate among all positions in the 2019 elections at 58.14 percent on average. In 2016,
the average fill-up rate for party-list was 70.56 percent. The senatorial race had a rather low
fill-up rate in 2019 as well, at 62.11 percent on average. But this figure is slightly higher than
the rate in 2016, which was 56.93 percent.
‘A few, not a lot, of cases’

Comelec Spokesperson James Jimenez allows that the change in the ballot layout might
account for a few instances of undervotes in the party-list race. But he says that it would be
a stretch to claim that having the party-list organizations on the back of the ballot is the main
reason why many people didn’t vote for any of these groups. “At most we would say that,
yes, it probably accounted for a few cases, but certainly not a lot,” Jimenez says. He says
that the Board of Election Inspectors (BEIs) were trained to tell the voters to check both sides,
while the Parish Pastoral Council for Responsible Voting (PPCRV) volunteers were also telling
voters about the back of the ballot. The change in the layout, Jimenez says, was an attempt
to optimize the ballot. Showing PCIJ ballots from the last four elections, he points out that
the party-list groups tend to take up a lot of space when placed on the front of the ballot,
while the back has a lot of empty space because the list of local candidates (for governor,
vice governor, mayor, vice mayor, and councilors) is not always as long as that of the party-
list groups. Jimenez says that a lot of people are trying to insinuate or circle around the
possibility that the layout was changed to compromise the party-list system. He argues that
it may well be that voters were not really intent on making any party-list selection. Asks
Jimenez: “Would you have voted for a party-list group to begin with? Because to my mind, it
seems like if you're setting out to vote for a party-list, that's at least among top three things
you would look for.” The Comelec official says that he wonders why voters did not check the
back of the ballot despite having heard all the party-list campaigns. He notes, “Are we
benighted as a people that we cannot even flip the paper over?” He says that there are many
other factors, including how the public feels about the party-list groups, that could have
affected the voting for these groups. For instance, he says, “how have they presented the
Page 97 of 100
party-list (system) to the voting public? Have they accounted for the entrance of new party-
list players that are very popular in the extreme?” Too, for some time now, the party-list
system has been criticized for not being truly representative of the marginalized. It has even
been described as “bastardized,” with the system hijacked by some political dynasties to
expand and extend their rule in Congress. Then again, some party-list groups have also been
noted to have helped pass landmark legislations such as the Reproductive Health Law, the
Sangguniang Kabataan Reform Law, and the Philippine Competition Act. That may be why the
likes of Cecille Marinda still would have gladly shaded an oval in the party-list section in the
last elections.
No notice to voters
The problem, says Marinda, was that the officers at her and her husband’s precinct did not
say anything about the back of the ballot. She says that she didn’t look because she thought
the positions and selections were all on the front. Usually, says Marinda, the selections for
councilors mark the end of the ballot. Her children at least were able to make party-list
selections, she says, because the election officers in their precinct reminded them to look at
the back of the ballot. (Cavite posted an undervoting rate of 32.58 percent in the May 2019
elections, up by 19.11 percent points from its 2016 figure of 13.47 percent.) PPCRV Board
Member Arwin Serrano, for his part, says that he conducted voter-education drives, but he
himself isn’t satisfied with what he had done after seeing the results of the elections. He says
that he feels that he could have done more, partly because his seminars were held in
universities and in areas where he thinks people are already aware of what to do during
elections. Eric Alvia, secretary general of the National Citizens’ Movement for Free Elections
(NAMFREL), meantime comments that no decision is ever too small when it comes to
elections. The decision to change ballot layout without making sure that voters are aware of
the change led to partial disenfranchisement, he says. Alvia remarks, “Nakatipid nga tayo sa
papel pero ito naman, maraming di nakakita na botante na ‘Ah meron pala sa likod’ (We did
save on paper, but many voters didn’t realize that there was still content on the back of the
ballot).” Alvia says that it boils down to Comelec’s project management office. “You don’t just
change things on a whim,” he says. “It’s like, okay, let’s make changes, but without
cognizance that there are things that will be affected by that change.” Because it was the first
time that the party-list section was placed on the back of the ballot, he says, Comelec should
have ensured that voters were “educated” of the change. His colleague, NAMFREL National
Council Member Lito Averia, suggests that it might have been a good idea to add a note at
the end of the front page that said, “Please see back.” Averia says that a friend of his didn’t
see the party-list section until he was already inserting his ballot in the machine. Recounts
Averia: “Gusto niya hatakin (He wanted to pull the ballot out of the machine).” – Philippine
Center for Investigative Journalism, August 14, 2019
*********************************
erniedelrosario • 6 minutes ago • edited
At that unforgivable extent of disenfranchisement (40+% average and as much as 60% in
some cases and even based on an incomplete report - with only 35% of the provinces
reporting) the 2019 (and earlier) Party List voting SHOULD have been declared a Failure and
another Party List Election conducted. Imagine! 65% of the provinces’ reports were missing!
Was this deliberately done by the Statistices Office because if all 100% of 81 provinces’ data
were reported the Party List undervotes could have reached about 30 million. How can this
be just “a few, not a lot, of cases?” according to Director James Jimenez. Comelec cannot just
again deny that this is their fault and they must be punished. There is not even mention of
the very obvious bleeding through problem on the back page of the ballot which could have
caused a high level of marginal scanning result and thus disenfranchisement. Bleeding on the
other side of the ballot can in effect ENFRANCHISE the INK for the bleeding can hit a voting
bubble and be accepted as a valid vote. THIS SNAFU MUST BE INVESTIGATED SERIOUSLY!
18. Random Manual Audit: "Section 29. Random Manual Audit. - Where the AES is used,
there shall be a random manual audit in one precinct per congressional district randomly
chosen by the Commission in each province and city. Any difference between the automated
and manual count will result in the determination of root cause and initiate a manual count
for those precincts affected by the computer or procedural error."
18.1. 2019 Elections: "… Comelec Resolution 10458 was promulgated. Namfrel had
requested relevant information to conduct a better and scientific methodology in handling
RMA which the Comelec declined; hence, Namfrel withdrew its participation as a citizens’ arm
of Comelec in performing the RMA. Even AES Watch had a Skype meeting with Kathy Dopp,
an RMA expert in the US, who said that the sample size should be raised from 700 to 2,500
for real accuracy."
Reference: https://www.manilatimes.net/2019/05/22/opinion/columnists/topanalysis/2019-
elections-assessment-worst/558175/
Page 98 of 100
19. Disenfranchisement due malfunctions
19.1. In 2010, 9 percent of PCOS machines failed to transmit ERs; in 2013, transmission
failures hit 23 percent of PCOS machines, thus technically disenfranchising 8.6 million voters.
Last May 9 [2016], 2,500 VCMs (with 184 alone in Caraga, La Union, and in the OAV centers)
malfunctioned, affecting 1.5 million voters, with manual voting resorted to in many voting
areas all over the country. All SD cards from 92,509 clustered precincts, whether transmitted
or not, were “imported” to the C/MBOCs, thus opening the system to data manipulation and
election rigging. How many ERs were transmitted to be used as a basis for proclaiming election
winners is the big question.
Reference: The Manila Time (May 24, 2016), from http://www.manilatimes.net/game-over-
for-smartmatic-comelec-should-be-made-to-account/263975/
20. POLICY GUIDELINES FOR THE CONDUCT OF PROOF OF CONCEPT AND PILOT
TESTING ACTIVITIES (Nov. 17, 2020): It is high time for the DICT to intervene in all
automated election system activities of Comelec by invoking:
Reference:
https://dict.gov.ph/wpcontent/uploads/2020/11/D_C_No_14_Policy_Guidelines_For_the_Co
nduct_of_Proof_of_Concept.pdf
Page 99 of 100
PROOF OF SERVICE (COURIER RECEIPT) OF COPIES OF THIS PETITION

Page 100 of 100
PROOF OF SERVICE (COURIER RECEIPT) OF COPIES OF THIS PETITION

TNTrio at Supreme Court Versus Comelec Smartmatic

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TNTrio at Supreme Court Versus Comelec Smartmatic

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Republic of the Philippines

ELISEO MIJARES RIO JR. 1

FRANKLIN FAYLOGA YSAAC 3

COMMISSION ON ELECTIONS (COMELEC)

Petitioners, with the assistance of volunteer lawyers, most

1. The Election Automation Law {Republic Act № 8436 Section

2. NATIONAL TELECOMMUNICATIONS COMMISSION (NTC) Memorandum

3. The Cybercrime Prevention Law (effective since 12 September

4. Previous submissions of COMELEC reports to the JCOC AES

5. Plain common sense and telcos themselves admit that they

6. Plain common sense and the COMELEC itself admit that

7. Why is COMELEC hiding such historically important data?

8. The period of six months (from the May 9, 2022 elections) is

EXHAUSTION OF ADMINISTRATIVE REMEDIES

2022 08 15 reply of Commissioner Marlon S Casquejo H

2022 08 25 Response to Casquejo's non-responsive reply K

2022 10 18 Letter to DITO Tele-community N

2022 10 18 Letter to Globe Telecom O

2022 10 18 Letter to Smart Communications P

SUMMARY OF VIRAL SOCIAL MEDIA POSTINGS 8

“The Comelec General Instructions to the teacher members of

“Comelec itself admitted on record = judicial admission before

“The printed ER is much longer, containing the names of ten

“The earliest transmissions then would occur after 7:30pm.

“Even if assuming that indeed all requirements of the Comelec

“No transmissions were made in the first 15 minutes after

“Yet in the second hour of counting, from 8:02pm to 9:02pm,

“This is very illogical because much more VCMs should have

“This is the first time in our election history, and maybe in

“Instead, they redirected us to get our answers from the JOINT

“We challenge Comelec to demonstrate to the public that all

“We appeal to the JCOC-AES to expedite the release of these

LATEST VIRAL SOCIAL MEDIA POSTINGS

“Instead of showing transmission logs to account for the

“Actually, the graph shown (Pic3) makes our observations

“The General Instructions of COMELEC require the teacher-

“So, using the same graph that COMELEC presented in the

“It is clearly shown that transmission peaked around 2 hours

“Another question that remained unanswered was could

“Unless COMELEC actually shows the transmission logs,

“… uncanny constant vote ratio …”

Vice Presidential Candidates

10. Petitioners are taxpayers from diverse backgrounds sharing a

11. Respondent COMMISSION ON ELECTIONS (COMELEC) may receive

12. Petitioners anticipate the entry of appearance of the OFFICE OF

13. Respondent Smartmatic TOTAL INFORMATION MANAGEMENT (TIM)

14. Respondent telecommunication companies are nominal

NATURE OF THE PETITION

16. This is a special civil action for mandamus aiming to compel

17. Petitioners have no more plain / speedy / adequate remedy

18. Ordinary remedy is not plain because respondents refuse to

20. Ordinary remedy is not adequate because the triumvirates of

TIMELINESS AND RIPENESS

22. Jurisprudence is replete with examples that spare mandamus

26. Special civil actions are appropriate remedies to raise

28. Mandamus is proper for petitioners that invoke their

ADVOCACIES OF PETITIONER "GUS" LAGMAN

29. Here is a description of postwar Philippine elections using

30. After the voting period: BEI (Board of Election Inspectors)

31. Good point: The ladder hierarchy is transparent and allows

33. Republic Act № 9369 authorizes the COMELEC to automate

34. Description: Election Day: Voters shade ballot ovals

36. Good point: almost instantaneous results.

37. Bad points: Unobservable vote-counting is inherently insane.